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MCCARTHY v. PALMER

October 16, 1939

McCARTHY
v.
PALMER et al.



The opinion of the court was delivered by: MOSCOWITZ

MOSCOWITZ, District Judge.

During the course of the trial of this action, the Court had occasion to rule that if the plaintiff inspected a document produced by the defendants after demand, the document became admissible on behalf of the defendants even though the plaintiff refused to place it in evidence. Since this rule is at variance with the New York rule as expressed in Carradine v. Hotchkiss, 120 N.Y. 608, 24 N.E. 1020, and Smith v. Rentz, 131 N.Y. 169, 30 N.E. 54, 15 L.R.A. 138, it is perhaps advisable to consider the background of the so-called federal rule followed by the Court.

The rule was established in a very early line of federal cases and found somewhat later expression in Edison Electric Light Co. v. United States Electric Lighting Co., C.C., 45 F. 55. Although the rule may be found stated only in a limited number of federal opinions, it has nevertheless become a well-established rule of evidence in the Federal Courts. It was only recently reiterated in a memorandum opinion of Judge Caffey in the Southern District of New York in Grandfield v. The New York, New Haven and Hartford Railroad Co

 As to the background underlying the rule, the following is to be found in 4 Wigmore on Evidence, Section 2125: "The real motive seems to have been a desire to penalize indirectly the attempted evasion of another fundamental doctrine of the common law, namely, that a party is not entitled to know beforehand the tenor of evidence in his opponent's possession." With the present liberality of our practice with respect to depositions and discovery one may well question the soundness of a rule which finds its basis in a policy which has since become alien to our law. Nor can one find unquestionable support in Rule 43(a) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, for the continuance of such a rule. While Rule 43(a) states that all evidence shall be admissible which was admissible under federal statute, federal equity practice or the rule of the state in which the Federal Court sits, it hardly is authority for forcing matter into evidence against the will of the person merely seeking to examine it, although it is to be admitted that viewed from the standpoint of the producer of the document who seeks to have it placed in evidence after inspection by his opponent, the liberal principle underlying Rule 43(a) is really applicable.

 Whatever the case may be, however, the rule, as pointed out above has become well established in the Federal Courts. In a system of jurisprudence founded upon stare decisis it does not lie within the domain of a Court of first instance to take it upon itself to upset a rule of long standing without most pressing circumatances to demand it. This Court, therefore, finds it necessary to reaffirm the rule, while recognizing, however, the advisability of reconsideration of the fundamental basis of the rule by a higher Court.

 In connection with the particular evidence in question, a further problem was brought into focus, namely, the extent to which the new Rules of Civil Procedure permit the examination by one party of affidavits and similar materials secured by the other party by independent investigation incident to the preparation of the case for trial. While the Rules of Civil Procedure were designed to permit liberal examination and discovery, they were not intended to be made the vehicle through which one litigant could make use of his opponent's preparation of his case.To use them in such a manner would penalize the diligent and place a premium on laziness. It is fair to assume that, except in the most unusual circumstances, no such result was intended.

 The remaining question presented relates to the applicability, if at all, of certain provisions of the Railroad Retirement Act of 1937, 45 U.S.C.A. §§ 228a-228r, upon the amount of damages granted to plaintiff against defendants by verdict of a jury. The provisions of the Act which defendants rely upon read as follows:

 "§ 228b. (a) The following-described individuals, if they shall have been employees on or after the enactment date, shall, subject to the conditions set forth in subsections (b), (c), and (d), be eligible for annuities after they shall have ceased to render compensated service to any person, whether or not an employer as defined in section 228a (a) (but with the right to engage in other employment to the extent not prohibited by subsection (d)):

 "1. Individuals who on or after the enactment date shall be sixty-five years of age or over.

 "2. Individuals who on or after the enactment date shall be sixty years of age or over and (a) either have completed thirty years of service or (b) have become totally and permanently disabled for regular employment for hire, but the annuity of such individuals shall be reduced one one-hundered-and-eightieth for each calendar month that they are under age sixty-five when the annuity begins to accrue.

 "3. Individuals, without regard to age, who on or after the enactment date are totally and permanently disabled for regular employment for hire and shall have completed thirty years of service.

 "Such satisfactory proof of the permanent total disability and of the continuance of such disability until age sixty-five shall be made from time to time as may be prescribed by the Board. If the individual fails to comply with the requirements prescribed by the Board as to proof of the disability or the continuance of the disability until age sixty-five, his right to an annuity under subdivision 2 or subdivision 3 of this subsection by reason of such disability shall, except for good cause shown to the Board, cease, but without prejudice to his rights under subdivision 1 or 2 (a) of this subsection. If, prior to attaining age sixty-five, such an individual recovers and is no longer disabled for regular employment for hire, his annuity shall cease upon the last day of the month in which he so recovers and if after such recovery the individual is granted an annuity under subdivision 1 or 2 (a) of this subsection, the amount of such annuity shall be reduced on an actuarial basis to be determined by the Board so as to compensate for the annuity previously received under this subdivision.

 "(b) An annuity shall be paid only if the applicant shall have relinquished such rights as he may have to return to the service of an employer and of the person by whom he was last employed; but this requirement shall not apply to the individuals mentioned in subdivision 2 (b) and subdivision 3 of subsection (a) prior to attaining age sixty-five."

 In seeking to rely upon this section, and primarily subdivision a (3) thereof, as affording a basis for reduction of the jury's verdict, the defendants have consented that this Court may dispose of the questions of fact upon the evidence as to whether plaintiff is permanently and totally disabled for regular employment for hire within the meaning of the language set forth in the said subdivision. A consideration of the legal question whether the defendants may set up this provision of the Act as a defense requiring reduction of a jury's verdict in an action of this kind is unessential if the proof falls short of the factual requisites asseverated by ...


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