Young v. Terminal RR Ass'n of St. Louis, 3933.

• Decision Date: 10 January 1947
• Docket Number: No. 3933.,3933.
• Citation: 70 F. Supp. 106
• Parties: YOUNG v. TERMINAL R. R. ASS'N OF ST. LOUIS.
• Court: U.S. District Court — Eastern District of Missouri

70 F. Supp. 106

YOUNG v. TERMINAL R. R. ASS'N OF ST. LOUIS.

No. 3933.

District Court, E. D. Missouri, E. D.

January 10, 1947.

Harvey B. Cox and George E. Helfers, both of St. Louis, Mo., for plaintiff.

Arnot L. Sheppard, of St. Louis, Mo., for defendant.

HULEN, District Judge.

Defendant's motion for new trial under Rule 50, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, is before the Court. Plaintiff, suing under Federal Employers' Liability Act, 45 U.S.C.A. c. 2, § 51, obtained judgment in the sum of $35,000. Plaintiff claimed disability as a result of fall from the fireman's seat in engine cab on April 2, 1945, causing injuries to his back and spine. On cross-examination he admitted that while working as a carpenter fifteen or twenty years ago he had fallen from a scaffold. Plaintiff testified he completely recovered from the effects of the fall from the scaffold long prior to employment by defendant. Defendant contests liability and also takes the position that disabilities attributed by plaintiff solely to the fall in the engine cab were in fact caused, in whole or part, by the fall from the scaffold.

"Q. And were you refused for the Services? A. Yes.

"Q. Will you tell us why? A. I will tell you what they told me. They told me that I had a touch of asthma and I had bad teeth.

"Q. What about your back? A. Why, he found a soreness in my hip.

"Q. I don't mean hip. I mean the back. Didn't he find that you had a chronic sore back? A. He never said anything about it.

"Q. Well, didn't you tell him that you had a chronic sore back? A. No.

"Q. Are you certain about that? A. The only thing he talked to me about was that soreness in my hip.

"Q. Well, what did you talk to him about? By the way, that was on November 19, 1943, wasn't it? A. I don't remember what date.

"Q. Well, it was sometime in 1943, it was about a week before you quit at Wagner's, wasn't it? A. Yes, somewhere around there, yes.

"Q. In fact, it was exactly a week, wasn't it? A. Well, I don't remember about that.

"Q. Well, you haven't any objection, have you, to our getting the records showing that physical examination, and showing them to the jury? A. No, sir.

"Q. You are perfectly willing for us to do that? A. Yes, sir.

"Q. And you did not tell the examining physician that you had a sore back and had had for a long time, did you? A. No, sir.

"Q. Did he examine your back? A. Well, not too much.

"Q. Well, did he examine it enough? A. He examined mostly in my legs and hip.

"Q. Legs and hip? A. Uh-huh.

"Q. And he turned you down because of a condition of the legs and hips, didn't he? A. No. I asked him — he said I was rejected, and I asked him why, and he said: `You got a touch of asthma, and bad teeth.'"

When the Report of Physical Examination and Induction of plaintiff from his Selective Service file was offered by the defendant the following record was made:

"Mr. Sheppard: But I do now offer in evidence this file which I think has now been marked.

"Q. Marked Defendant's Exhibit No. 5, is it not? A. Yes.

"Mr. Sheppard: Defendant's Exhibit No. 5.

"Mr. Cox: It being a part of the service record, as answered by Mr. Werner to the Court's question, I object to the use of that document, whatever it is, because it is privileged.

"The Court: The objection will be sustained on the further ground it is not the best evidence.

"Mr. Sheppard: On what ground, Your Honor? I missed it.

"The Court: Not the best evidence. Not on the ground of privileged document alone; I sustain it on both grounds.

"Mr. Sheppard: Oh, on both.

"The Court: I will sustain the privileged objection under the basis of Regulation 605.23, found in the Code of Regulations made pursuant to the Selective Service Act. You will find that on page 2810, Supplement 1941, Book 3, Titles 27-45 Federal Regulations."

Defendant asserts error in the Court's ruling on admissibility of the medical report from plaintiff's Selective Service file. It may serve some purpose if we state the reason for the order we are about to enter.

The controlling Selective Service regulation (Federal Regulation Supplement, 1941, Tit. 32 — National Defense, c. VI, Selective Service, p. 2809) is Section 605.31 et seq. which provides that:

"Except as hereinafter in the regulations in this part provided, the information in a registrant's file shall be confidential insofar as it relates to the following subjects:

"(a) His earnings or income.

"(b) His dependency status.

"(c) His physical or mental condition.

"(d) His court record.

"(e) His previous military service."

Exceptions to the above regulation are found in Section 605.32 and read as follows:

"(a) The registrant, or any person having written authority from the registrant.

"(b) The members and clerical and stenographic employees of the local board, medical advisory board, or board of appeal, the examining physician or examining dentist, and the government appeal agent or associate government appeal agent, dealing with the registrant's case; proper representatives of the State Director of Selective Service or the Director of Selective Service; United States attorneys and their duly authorized representatives.

"(c) Any other Federal official or employee, but only to the extent that such other Federal official or employee is specifically authorized in writing by the State Director of Selective Service or the Director of Selective Service."

Section 605.33 provides that: "The making or filing of a claim or action for damages against the Government or any person, based on acts in the performance of which the record of a registrant or any part thereof was compiled, shall be a waiver of the confidential nature of information in all such records, and, in addition, all such records shall be produced and published in response to the subpena or summons of the tribunal in which such claim or action is pending."

The next section, numbered 605.34, provides as follows: "In the prosecution of a registrant or any other person for a violation of the Selective Training and Service Act of 1940 or any amendment thereof, the Selective Service Regulations, any orders or directions made pursuant to any of such acts or regulations, or for perjury, all records of the registrant shall be produced and published in response to the subpena or summons of the court in which such prosecution is pending."

The regulations are based upon the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 310, which provides: "(a) The President is authorized — (1) to prescribe the necessary rules and regulations to carry out the provisions of this Act; * * *."

Selective Service Regulations authorized by the statute have the force of law. United States ex rel. Lawrence v. Commanding Officer of the Cook Army Air Field, D.C.Neb., 1945, 58 F.Supp. 933.

Defendant challenges the reasonableness of the Regulation quoted and the power of the President to make it. Physical fitness of registrants under the Selective Service Act being of prime importance to the armed forces, and full, free and unhampered disclosure by the registrant being conducive to a complete physical examination, there is no doubt in the Court's mind but the Regulation was reasonable and within the power delegated to the President.

Nor can we agree with defendant that the Regulations are without effect in court proceedings. Paragraphs 605.33 and 605.34 expressly refer to court proceedings and designate the type of cases in which Selective Service records are admissible (absent waiver of the privilege), the circumstances under which they are admissible and how they may be obtained for use in court. Federal Rules of Civil Procedure, Rule 34, recognize the doctrine of privilege as to documents. It is our opinion that the Regulation making a registrant's file privileged is binding in a court of law and that this conclusion is supported by the authorities. Federal Life Insurance Co. v. Holod, D.C., 30 F.Supp. 713; Harris, Adjutant General, v. Walsh, 51 App.D.C. 167, 277 F. 569; Graham v. Squier, 9 Cir., 132 F.2d 681; Annot. 129 A.L.R. 1200.

Defendant, arguendo, claims a waiver by plaintiff of the privilege accorded his file by the Regulation. The Regulation provides that the privilege may be waived by the registrant by "* * * written authority" from him. There is no requirement that the waiver be signed or be written by the registrant. In Haskins v. City of De Soto, Mo.App., 1931, 35 S.W.2d 964, 967, plaintiff, a construction engineer, was suing the City for services and his authority was questioned. A Missouri statute required that an agent purporting to act for the City should be "Authorized in writing". It was held, the minutes of the Counsel showing adoption of the motion directing execution of the contract was a sufficient compliance with the statute and evidenced employment "in writing". See Trossbach et ux. v. Trossbach, Md.1945, 42 A.2d 905, 908, holding admissions of a party in the form of testimony would constitute sufficient memoranda under the Maryland statute of frauds, — "Recorded testimony should be regarded as equivalent to signed depositions". In 27 C.J. 256, 37 C.J.S., Frauds, Statute of, § 175, the general rule is stated that no particular form of language or instrument is necessary to constitute a memorandum in writing under the statute of frauds. We do not think the requirement in the Regulation that a registrant must waive the privilege of his file in writing requires any higher degree of evidence than is necessary to meet the demands of the statute of frauds. We conclude plaintiff having authorized reading of report of his physical examination, while testifying under oath in a court of record where his testimony was reduced to shorthand, and in turn transcribed, the testimony is a writing of a character sufficient to meet the requirements of the Regulation and plaintiff's testimony under such circumstances constitutes a waiver of the privilege provided in the...