Opinion
No. 20015.
February 21, 1930.
Graham K. Betts, Wm. G. Beardslee, and Joseph A. Barto, all of Seattle, Wash., for plaintiff.
Anthony Savage, U.S. Atty., Tom De Wolfe, Asst. U.S. Atty., and Lester Pope, Regional Atty., U.S. Veterans' Bureau, all of Seattle, Wash., for the United States.
Action by Mattie Smith, individually and as Administratrix of the Estate of John Henry Smith, deceased, against the United States of America. After the cause was assigned for trial, plaintiff brought a cross-bill of discovery in aid of the action, and defendant moves to dismiss the bill.
Motion to dismiss granted.
The plaintiff seeks to recover as beneficiary on a war risk insurance policy, alleging both death of the insured, December 23, 1920; total and permanent disability of the deceased at date of discharge, July 5, 1919, by reason of pulmonary tuberculosis.
The action was commenced February 13, 1929. Answer was filed April 12, 1929. The cause was assigned for trial on the 27th of January, 1930, for February 25. On February 13, 1930, the plaintiff brings a cross-bill of discovery in aid of the law action, seeking to discover by interrogatories to the defendant the names of the doctors who have treated the deceased, the dates of treatment by each doctor, the last known address of each doctor, names of doctors who examined the deceased regardless of whether treatment was accorded, and name and address of such doctors, and date of examination, and "give the names and addresses of any parties competent to be witnesses in the above entitled cause who may have made affidavits in support of the claim of the deceased."
The defendant moves to dismiss the bill for the reason that the legal remedy is complete, the bill of discovery is insufficient in fact, and that the court is without jurisdiction.
It is at once apparent that the names of the witnesses of the defendant by whom facts may be established, is sought, and not records and documents pertaining to the disability of the deceased. The Supreme Court in Carpenter v. Winn, 221 U.S. 540, 31 S. Ct. 683, 686, 55 L. Ed. 842, said: "The court will require reasonable proof of the possession and of the pertinency of the papers. If the object of the party is to avail himself of the provision of the section, so as to move for a nonsuit, or for judgment by default, he must put the party on his guard, and let him know the consequences of a refusal; and the party receiving such notice will come prepared to meet it."
The purpose of Equity Rule 58 (28 USCA § 723) is to assist a party to support his claim. The discovery is limited to ultimate facts material to the issue and not the names of the witnesses known to the adversary by whom the facts material to the issue may be established, nor agencies by or through whom material facts may be proven. Wolcott v. National Electric Signalling Co. (D.C.) 235 F. 224; J.H. Day v. Mountain City Mill Co. (D.C.) 225 F. 622; F. Speidel Co. v. N. Barstow Co. (D.C.) 232 F. 617.
The remedy is exceptional, and a party invoking it must bring himself within the exceptions (U.S. v. Bitter Root Dev. Co., 200 U.S. 451, 26 S. Ct. 318, 50 L. Ed. 550), and may not be used for the purpose of discovering the weakness or strength of the adversary. Carpenter v. Winn, supra. See, also, Durant v. Goss (C.C.A.) 12 F.2d 682. Nor is there anything in the record which shows a necessity for discovery in equity or that section 724, Rev. St. (section 636, title 28, USCA) is not sufficient. Nor is it sought to discover records and documents.
Defendant at bar stated its willingness to produce at trial any records or documents in its possession on demand.
Motion to dismiss the bill is granted.