Opinion
Personal injury action under the Jones Act, 46 U.S.C.A. § 688, by Jerry Bjorlin against the United Steamship Company. The defendant moved for an order requiring plaintiff to furnish defendant with names and addresses of witnesses to condition of place of accident or in alternative names and addresses of persons making statements as to condition of place of accident. The plaintiff moved for a jury selected from an all male panel. The District Court, Jones, Chief Judge, held that discovery of the information could not be compelled by an order in the absence of an interrogatory requesting the information and that the jury should not be mixed because of the embarrassment that might ensue if the fact of plaintiff's venereal disease should be introduced.
Defendant's motion denied and plaintiffs' motion granted.
S. Eldridge Sampliner, Cleveland, Ohio, for plaintiff.
Russell V. Bleecker, Cleveland, Ohio, for defendant.
JONES, Chief Judge.
This is a personal injury action brought under favor of the Jones Act, 46 U.S.C.A. § 688.
Defendant has moved that this Court order the plaintiff to furnish defendant with the names and addresses of witnesses to the condition of the place of the accident or, in the alternative, the names and addresses of persons making statements as to the condition of the place of accident. This motion is made under favor of Rule 33, Federal Rules of Civil Procedure, 28 U.S.C.A.
Rule 37 sets forth the situations and conditions that must exist before an order compelling the discovery of information can be granted, and it is the only rule under which the order requested by the motion may be granted. Rule 33 confers no authority on the Court to make the order requested. One of the situations where an order may be granted occurs when service of an interrogatory is made on the other party and such party without good cause refuses to answer. An order to answer then may be made, but the service of the interrogatory and the refusal to answer must have taken place before the Court can compel the answer.
In this case no interrogatory requesting the information desired was served on plaintiff and the Court, therefore, cannot compel the discovery of the information by an order pursuant to Rule 37.
Plaintiff is said to be syphilitic and moves for a jury selected from an all male panel, because information concerning his disease will be given to the jury and he feels his rights, if women serve on the jury, will be prejudiced and he will not therefore have a fair hearing.
The Court is not impressed with plaintiff's claim of possible prejudice. It does feel, however, that if the fact of plaintiff's venereal disease is to be introduced, the discussion of that fact and its relation to the case will be potentially embarrassing to a mixed jury. On this ground plaintiff's motion for an all male jury will be granted.