McLaughlin v. Massachusetts Indemnity Insurance

This is an application for a rehearing for the alleged reason that even though we be correct in holding the record in the Veterans' Administration Bureau to be confidential and privileged, the plaintiff waived any privilege afforded him by the statute when he testified that the final diagnosis by the army medical staff was "colitis — cause undetermined." The record discloses that the plaintiff testified he acquired this information when it was announced in the court by the men that decided to give him a discharge. He also testified that he saw it on the record at the hospital but that he never saw it in the record at Washington, and which is now in the Veterans' Administration Bureau. The plaintiff was not testifying from the records which are claimed to be privileged, and the privilege has not been waived.

It is also urged by counsel that at no time during the trial did the plaintiff claim the right of privilege and that it is now too late to raise the question for the first time in a reviewing court. We are in full accord with this legal principle but do not think that the facts in the record support the charge. In the cross-examination of plaintiff, counsel for defendant clearly indicated that a request had been made of counsel for plaintiff to produce these records and the same had been refused. This was certainly an exercise of the privilege. Again, in the argument to the jury counsel for the defendant told the jury, "I am surprised at Mr. Stanley with the experience he has, I thought he would produce those records. I was surprised when he refused the first time to let us see them, at least the second time; there is just one inference that you can draw from it, that if these records were here, they wouldn't do Mr. McLaughlin's case any good at all, but we haven't got them." We think that the cross-examination which we quoted in our prior opinion clearly shows counsel for the plaintiff not only exercised the privilege but it also shows one of the bases of the cross-examination seemed to be an attempt to get the plaintiff to waive the privilege. Counsel for the defendant in their answer brief cited the case of McCool v. Dighton, Somerset Swansea St. Ry. Co.,173 Mass. 117, 53 N.E. 133, wherein it was stated that the trial court required the client to make the waiver personally.

A motion to certify the record has also been filed alleging conflict with the cases of Katafiasz v. Toledo ConsolidatedElectric Co., 1 C.C. (N.S.), 129, 14 C.D., 127, and Carney v. Krause, 6 Ohio Law Abs., 699. In our opinion we endeavored to distinguish these two cases and we are still of the opinion that there is no conflict.

The application for a rehearing is denied and the motion to certify is overruled.

Judgment accordingly.

WISEMAN, P.J., and HORNBECK, J., concur.