author: By McBRIDE, J.:

text:
    ROLLER, Plaintiff-Appellant, v. STOECKLEIN et, Defendant-Appellees.
    Common Pleas Court, Montgomery County.
    No. 111064.
    Decided April 24, 1957.

      Lloyd H. O’Hara, for plaintiff-appellant.
    Francis S. McDaniel, for defendant-appellees.
   OPINION

By McBRIDE, J.:

This case was submitted to the court on the appeal of law and fact of a police officer from the finding of the Civil Service Commission of the City of Oakwood sustaining the removal of the officer for insubordination pursuant to §143.27 R. C., as amended August 16, 1955. The transcript of the testimony before the Civil Service Commission was introduced on the appeal and the testimony at the hearing was limited to that of a local engineer who testified that the area in question was exclusively on a dedicated public way and not on private property, nor separate property owned by the City of Oakwood.

The incident arose after the chief of police issued a departmental order prohibiting employees in the safety department from parking their private cars, during duty hours, in several spaces on a public street reserved by custom or policy, and not by law, for the adjoining businessmen. There is a direct conflict in the record as to whether the officer was apprised of the existence of this departmental order, however for the purposes of this decision the court will assume, without deciding, that such notice was reasonably given on the morning in question. In any event the officer became aware of its existence before he was removed by the city manager the same afternoon.

The counsel for the City of Oakwood argues that regulation of the parking of employee’s automobiles on public streets by the chief of police is necessary and reasonable because the officers are on duty for a period of twenty-four hours and because parking for such a length of time, even though lawful, would exclude the use by other citizens. This argument is defective in several respects: the subject matter is legislative in character, not within the administrative control of any individual, and the legislative power to control the use of public streets and highways is subject to definite limitations. Neither the chief of police or the legislative authority of the municipality has the power to designate public ways for the exclusive benefit of indvidual citizens or to arbitrarily exercise discrimination against individual citizens, or groups of citizens, by prohibiting their use of such public ways. Regulations respecting the use of public ways must be exercised by a legislative power, cannot be delegated, and must be general in nature and impartial in operation.

An ordinance which prohibits the sale on the city streets and alleys of ice cream by salesmen who operate refrigerated vending tricycles is null and void and in violation of the constitution. Frecker v. City of Dayton, 153 Oh St 14; 41 O. O. 109.

An ordinance which gives the owner abutting a public street the authority to control parking on a public street is invalid because of its attempted delegation of legislative power and for the reason that it is violative of the equal protection of the law guaranties of the state and federal constitutions. Cincinnati v. Cook, 107 Oh St 223. In conclusion in that case the court said:

“The effect of this ordinance is to grant a privilege or immunity to one and deny it to another of the same class. Ordinances to be valid must be general in their nature and impartial in their operation, and those which make an act penal if done by one person and not so if committed by another cannot be sustained.
“Diseriminaton is not only permitted by the terms of this ordinance but is expressly authorized by the delegation of authority to the owner of the premises, whose ipse dixit determines the guilt or innocence of one who stops his automobile or other vehicle in front of such premises. And not only was discrimination permitted and authorized, but actually resulted, as the record discloses.”

Closer to home we find the case of Dayton v. Hickle (App), 68 Abs 161, which involved an ordinance granting the exclusive use of taxi stands upon the authorization of the director of public safety and the consent of the abutting owner. The court of appeals of this district held that the case of Cincinnati v. Cook, supra, was determinative. The Cincinnai case has been repeatedly followed in varied situations. Northern Boiler Co. v. David, 157 Oh St 564, 47 O. O. 416; State v. Baber, Supt., 161 Oh St 211, 53 O .O. 95; Albrecht Grocery Co. v. Overfield, 32 Oh Ap 512. In the Albrecht case an ordinance expressly gave the police department the right to regulate traffic in certain instances. A similar legislative delegation of power to the police department was viewed as a breach of public trust and declared unconstitutional in Sage v. City of Akron, 30 O. N. P. (N. S.) 72. In a much narrower situation Judge Stewart wrote in the opinion in Weber v. Board of Health, 148 Oh St 389, 35 O. O. 351,—

“The line which separates legal and constitutional delegation of power for administrative purposes and the delegation of legislative, discriminatory and unreasonable power is frequently a thin one, obscured in a twilight zone, but, nevertheless, it is the duty of courts to find it and to confine boards, commissions and officers to the exercise of powers which are regulatory and administrative, and to interdict as to them functions which belong exclusively to legislative bodies. It is only thus that we shall continue a government of laws and not of men.”

The appellant was subject to the lawful and reasonable orders of his superiors in his conduct as a police officer and in the performance of the governmental function assigned to his department. However the function in this instance was not one assigned to the police department and, if assigned by ordinance, it would have been equally unconstitutional and void. The duties of a chief of police do not include the power to adopt regulations for the use of public streets. Any regulation attempting to assert such power is void and cannot be enforced against any ctizen, including subordinate police officers. Such an order was also unreasonable and arbitrary because it denied constitutional rights to a few and it conferred special benefits upon others.

The fact that a citizen is employed as a police officer does not constitute a waiver of any privilege granted by the constitution. Any construction or interpretation that directly or indirectly deprives a citizen of constitutional rights because he is a police officer would create incredible and despotic conditions.

The case of The State, ex rel., Christian v. Barry. Directory of Public Safety, 123 Oh St 458, determined this very question. On August 6, 1929 the police department of Cleveland issued a departmental order requiring every member of the force to obtain permission before settling any civil suit for damags to the personal automobiles of the officers. Russell Christian was a policeman in the department and on September 17, 1929 he was suspended for violation of this rule. In the opinion Judge Allen indicated that the order “was issued in a wise and certainly most commendable effort to eliminate the coercion of private citizens by police officers in damage cases. It was construed both by the director of public safety and by the civil service commission as forbidding resort to the courts. If this construction is proper, it makes the order unconstitutional, for it places a superior officer as an intermediary between the courts and the citizen, deciding whether or not the court shall receive his suit. This construction deprived Christian of his resort to the courts, and therefore deprived him of a constitutional right guaranteed him by Section 16 of Article I of the Constitution of Ohio. He was justified in instituting a suit in the courts without consultation with his superior officer, and hence his dismissal upon that ground was improper.”

It may well be argued that it is unbecoming a police officer to refuse to obey any personal order issued by a superior under the color of his office, irrespective of the arbitrary, immoral, or unconstitutional nature of the order. The court cannot recognize such a proposition.

It is reasonable that the superior officer have the means of securing discipline among the members of the department. In the conduct of legitimate police functions normal and emergency situations arise in which it is contrary to law or detrimental to public interest to tolerate a refusal to obey a direct and reasonable order. However it is possible to conceive of difficult situations in which moral and legal considerations prohibit obedience. Should an officer, on orders, inhumanly treat a prisoner for the purpose of obtaining a confession in violation of the prisoner’s constitutional rights? If a superior officer has such authority, supported by the right of suspension and removal, what other unlawful and unreasonable acts may be imposed upon a subordinate officer and what other classes of citizens may be similarly denied their fundamental rights? These are serious considerations of public concern which are indirectly involved in this case.

The issue here is beyond the real or apparent authority of the police department. It does not involve any duty or obligation assumed by the officer. The departmental order was legislative and executive in nature and if it be considered here simply as a disciplinary matter the officer would be denied the full right of recourse to the courts to determine the legality of the order. The chief of police would thereby acquire legislative, executive, and to some extent judicial functions.

Where a simple doubt exists as to the reasonableness or legality of an order of a superior and time is not made of the essence of the order— as it was here — some other method might be selected, if available, for its determination. In the instant case the nature of the situation left no opportunity for any exercise of due process of law other than that adopted by the appellant. His conduct in exercising his constitutional rights was gentlemanly and above reproach. Accordingly the court cannot find that the appellant should have adopted any other course. The civil service laws are designed to protect public employees in this situation.

The removal of a police officer for insubordination because he failed and refused to obey an order of his superior which order violated the constitutional rights of the officer as a citizen is unlawful, arbitrary, and void. The finding of the Civil Service Commission of the City of Oak-wood is reversed and the appellant ordered re-instated as of December 7, 1956.

The motion to dismiss the appeal because of insufficient notice is overruled.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    BETTY’S ROYAL TAVERN, INC., Appellant-Appellee, v. BOARD OF LIQUOR CONTROL et, Appellees-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5435.
    Decided May 7, 1956.
    Charles T. Kaps, Columbus, for appellant-appellee.
    C. William O’Neill, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for appellees-appellants.
   OPINION

By THE COURT.

Submitted on motion of the appellee permit holder seeking an order dismissing the appeal for the reason that the appellant Board of Liquor Control has failed to file a bill of exceptions within the time required by §2321.05 R. C. The record discloses that the notice of appeal on questions of law was filed on December 21, 1955, and that no bill has -been filed up to the time of the filing of this motion, to wit, April 19, 1956. We have examined the assignment of errors submitted, together with appellant’s brief, and are of the opinion that a bill of exceptions is not necessary to exemplify some of the alleged errors to which the appeal is directed. The decision of the Court is also entered on the record which eliminates the necessity of a bill. Sec. 2321.05 R. C. requires a bill of exceptions only under certain conditions and “when the decision is not entered on the record.” This Court has frequently held that a bill of exceptions is not always essential to a review. See Cafe Tia Juana v. Board of Liquor Control, No. 5433, decided on April 18, 1956 (73 Abs 492), and cases cited therein.

The motion will be overruled.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


author: By YOUNGER, J.

text:
    LATHROP, Estate of, In re: WELCHER et, Plaintiffs-Appellants, v. LATHROP, Extx., etc., Defendant-Appellee.
    Ohio Appeals, Third District, Auglaize County.
    No. 181.
    Decided June 5, 1956.
    Bentley, Cory, Boesel & Leonard, Lima, for appellant.
    Oren E. Dickason, Lima, for appellee.
   OPINION

By YOUNGER, J.

The claimants in this case filed their petitions in the Probate Court of Auglaize county for authority to present their claims against the executor of the estate of clarence Lathrop after the expiration of four months following the appointment of said executor.

The petitions allege that the claimants and the decedent were involved in an automobile accident on August 8, 1954, on U. S. Highway 30, some nine miles west of Van Wert, Ohio, in Van Wert county; that shortly after the accident decedent was removed from the Van Wert County Hospital to a hospital in Lima, Ohio, where he died on August 10, 1954; that newspaper articles in the Lima News on August 9, 10 and 11, 1954, gave the decedent’s address as Route 1, Lima, Ohio, and listed decedent as a member of certain organizations in Spencerville, Ohio; that the undertaker was C. B. Miller & Son of Spencerville, and that burial was made in Shawnee Cemetery all in Allen county, Ohio; and that Lima is situated geographically almost in the center of Allen county.

The petitions further allege that William C. Leonard, an attorney at Law, Lima, Ohio, examined the records of the Probate Court of Allen county, Ohio, on October 18, 1954, and on January 28, 1955, but found there was no record of any appointment of an administrator or executor, or any estate proceedings, and that on January 28th, Leonard learned from an Auglaize county resident who was employed in his own office, that there was a possibility that Rural Route 1 out of the Lima Post Office might actually include territory in Auglaize county, and that a telephone call to the Probate Court of Auglaize county disclosed that an executor for the deceased Clarence Lathrop had been appointed five months and eleven days previously.

The petitions further allege that the claimants were all residents of Minnesota, passing through Ohio at the time of the accident, and had no actual notice of the appointment of an executor except through their attorney, Leonard, over five months after the executor was in fact appointed; that claimants and their attorney actually believed the decedent was a resident of Allen county, Ohio, until January 28, 1955, after the four months statutory period for presenting claims to an executor had expired, and that reasonable diligence was exercised by claimants and on their behalf to determine if an executor had been appointed.

The probate court sustained demurrers to the petitions and held as follows:

“* * * that the claimant had knowledge of the decedent’s death and that such knowledge was acquired in sufficient time to present the claim within the period prescribed by §2117.06 R. C.:
“The court is further of the opinion that under the facts and circumstances as evidenced in the pleadings in this cause there is no justification for the court in permitting this claim to be filed at a later date under and by virtue of §2117.07 R. C., which in substance says the court may allow a claim to be presented after the four month period if either of the conditions exist, namely: the claimant had no knowledge of the death of the decedent or no knowledge of the appointment of the executor or administrator, and since both the petition and the amended petition show on their face timely knowledge of the death of the decedent, the demurrer is therefore sustained.”

From this order, this appeal is prosecuted.

We are therefore presented squarely with the question of whether the mere knowledge only of the death of the decedent by the claimant shortly after it occurred, is, in and of itself, sufficient to bar the presenting of a belated claim within the provisions of §2117.07, subsection (a), R. C.

The provisions of the above section were under consideration by this court in Case No. 1506, Court of Appeals of Crawford County, entitled, In re Estate of William C. Christman, Deceased: Damon E. Ledley, plaintiff v. M. E. Christman, Admr., defendant, decided August 3, 1955, 100 Oh Ap 133.

The facts in that case are somewhat similar to the one here at issue in that both claimant and decedent were involved in a serious automobile accident. Both were taken to the same hospital in Galion, where decedent died the same evening. The claimant was a resident of Mt. Gilead in Morrow County, while the decedent was a resident of Crawford County. The petition of the claimant alleged that he had no actual knowledge of the appointment of the administrator until after the statutory time for presenting claims had expired and that he was under legal disability during the major portion of such statutory period.

The evidence showed that before the funeral of the decedent, the claimant was informed of the death of the decedent and his place of residence. However, it is obvious that if claimant was under legal disability, the fact that he was told of decedent’s death and place of residence could not be controlling. Since the claimant made no claim that he did not know of the death or the residence of the deceased, the controlling issue was whether the evidence establishd any legal disability under subsection (B) of §2117.07 R. C., as that term is defined in §§2131.02 and 1.02 R. C., and interpreted by the Supreme Court in the cases of Bowman v. Lemon, 115 Oh St 326; and Lowe, Gdn. v. The Union Trust Company, 124 Oh St 302.

This case, however, must be decided entirely within the purview of the holding of the Supreme Court as enounced in the case of In re Estate of Marrs, 158 Oh St 95, by which we are bound.

In that case the collision between the tractor-trailer of Marrs and a bus of Pennsylvania Greyhound Lines occurred in the vicinity of Ashland, Ohio, and a general agent of the claimant, Greyhound Lines, made an investigation very shortly after the collision, in which he learned the name of the decedent-owner Marrs, and that his residence was in Shelby county, Ohio. After negotiations with the holders of P. U. C. O. permits for operation of the tractor-trailer, and the interested insurers, the bus company filed a petition in the Probate Court of Shelby County some eight months after the appointment of the administrator for Marrs, for permission to file a belated claim. The agent for the claimant admitted by deposition that he caused no investigation to be made nor sought or received any information as to the appointment of the administrator. So far as shown by the record, no one else made such an investigation for claimant.

Upon the above facts the Supreme Court proceeded to interpret that portion of the statute which reads as follows:

“did not have actual notice of the decedent’s death or of the appointment of the executor or administrator in sufficient time to present his claim within the period prescribed by law.” (Emphasis by Supreme Court.)

The court held that the language employed is plainly in the disjunctive and that in its usual sense and meaning, the word “or” connotes the alternative — one or the other of two designated things. In holding that the word “and” could not be substituted for the word “or,” the court said (pp 99 and 100):

“To substitute the word ‘and’ for ‘or’ . . . would be to attribute to the General Assembly the doing of a useless thing. For example, if that body had intended that actual notice of both the death and the appointment was necessary the inclusion of the requirement of notice of death would be surplusage. Where one has actual notice of the appointment of an executor or administrator, he would perforce be advised that death had preceded such appointment. Clearly, the General Assembly used ‘or’ on its generally accepted sense.”

Here follow the words strongly relied upon by the appellee in support of the probate court’s conclusion that timely notice of death alone will defeat a claimant seeking to present a belated claim:

“By placing the alternative in the statute, actual notice of either the death or the appointment is sufficient to place a claimant under the duty of filing his claim within the four months, providing the notice comes soon enough to enable him to do so.”

It is to be noted that Judge Middleton, in his dissent, observed:

“The construction adopted in the majority opinion has the effect of nullifying and writing out of the statute the words ‘or of the appointment of the executor or administrator.’ ”

In summation, the court then concludes as follows:

“Bearing in mind that the prompt and expeditious settlement of the estates of decedents is an approved and desirable object, we are of the opinion that the General Assembly used the word ‘or,’ advisedly and deliberately, so that, when one has a claim against a decedent and has actual notice of his death, he is at once put upon inquiry as to the appointment of a fiduciary and if he learns of such appointment, or in the exercise of reasonable diligence could learn of the same, he must file his claim within the specified four-month period, if he has a fair opportunity, or be precluded from doing so.”

Is this a holding that mere knowledge of the death shortly after it occurs, is, in and of itself, sufficient to bar the presenting of a belated claim? If such a holding were intended, why were the following words inserted: “he is at once put upon inquiry as to the appointment of a fiduciary, and if he learns, or in the exercise of reasonable diligence could learn of same.”? These included words make a negative answer as to the first question imperative.

If the court intended to hold in the opinion that mere timely knowledge of death would bar the presenting of a belated claim, the opinion is then emasculated by the second syllabus, by which we are bound.

We hold that such was not the intention of the Supreme Court, either in the opinion or the syllabus, and that the words “and his place of residence” and “and that in the exercise of reasonable diligence the claimant could have learned of the appointment of an administrator and thereafter had a fair opportunity to present his claim within the four months prescribed” contained in the second syllabus, must be given meaning and the entire second syllabus construed as a whole.

The demurrer in our case admits that the claimants had no knowledge of the decedent’s residence in Auglaize county, until after the expiration of the four-month period. The petitions allege the claimants and their attorney used reasonable diligence to ascertain whether an administrator had been appointed. The petitions admit knowledge of decedent’s post office address at the time of his death. We hold that knowledge of a decedent’s post office address is not synonomous with knowledge of his place of legal residence. It is common knowledge that many employees of the State of Ohio have a post office address in Columbus or some of its suburbs for their office or temporary residence, or both, and yet their legal residences are scattered all over the state. The same is true of employees of large corporations and can be true of one engaged solely in private ®r personal business.

The petitions further allege that during said four-month period the claimants and their attorney actually believed the legal residence of the decedent to be in Allen county and made inquiry at the Probate Court of Allen County during said period.

We hold that the allegations of the petitions, when attacked by a demurrer, are sufficient within the holding of the Marrs case.

We have been strongly urged by the appellee in her brief, not to adopt the interpretation of the Marrs case which we have, because it would attribute judicial legislation to the Supreme Court’s decision.

It is true the statute is silent as to “place of residence,” “reasonable diligence,” and “fair opportunity to present his claim.” In our opinion, these are guideposts merely for the use of the Probate Court in arriving at the finding it must make before permitting the filing of a belated claim. Sec. 2117.07 R. C., is intended by the legislature to alleviate the harshness of §2117.06 R. C., in worthy and legitimate cases. Mere knowledge of the death of one party to a serious accident out on the highway any time during the day or night should not in and of itself forever bar a legitimate claim by the other party who may also have been seriously injured, provided the reasonable diligence and the other steps are taken, as outlined in the Marrs case. On the other hand, a person who, like the claimant in the Christman case, is able to consult with his physicians, an insurance adjuster and a banker, but who neglects to consult with his lawyer, should be barred.

It follows that in our opinion the Probate Court was in error in sustaining the demurrers. The judgment is therefore reversed and the cause remanded to the Probate Court, with instructions to overrule the demurrers, and for further proceedings according to law.

QUATMAN, PJ, MIDDLETON, J, concur.


author: By PHILLIPS, PJ.

text:
    OHIO FINANCE COMPANY, Plaintiff-Appellant, v. BARTOLLI, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3807.
    Decided November 18, 1955.
    Morris Mendelssohn, Youngstown, for plaintiff-appellant.
    William A. Fisher, Youngstown, for defendant-appellee.
   OPINION

By PHILLIPS, PJ.

On the strength of a financial statement furnished by defendant to plaintiff on August 31, 1953, plaintiff, an Ohio corporation, loaned defendant and his wife $650.00 on a 1941 DeSoto automobile, refinancing a loan made in 1951.

Before repayment of the loan defendant was adjudicated and discharged as a bankrupt upon his voluntary petition filed in bankruptcy in the United States District Court for the Northern District of Ohio, Eastern Division, and thereafter refused to pay plaintiff the amount of such indebtedness.

Plaintiff sued defendant in the Municipal Court of Youngstown upon the note evidencing such loan, which contained a warrant of attorney to confess judgment.

By answer defendant alleged inter alia:—

“That said loan was made to the defendants on a four-door 1941 DeSoto automobile, in year of 1951, and said claim was filed in bankrutpcy and said automobile was abandoned to the plaintiff by the defendants and by the federal court. The defendant was rendered discharged in bankruptcy on the 27th day of April 1954, and discharged.”

By reply plaintiff alleged that defendant failed to allege facts stating a defense.

On trial, upon evidence showing that defendant failed to list several of his creditors in his financial statement existing at the time of furnishing such statement, and introduction of the financial statement plaintiff rested.

The evidence is conflicting as to whether the plaintiff made a materially false statement of his assets and liabilities in order to obtain the loan and the plaintiff made such loan in reliance on the claimed false statement.

At the close of defendant’s case the trial judge sua sponte permitted defendant to amend his answer by interlineation to conform to the pleadings by alleging that defendant was “rendered discharge in bankruptcy on the 27th day of April 1954 and discharged,” as a bankrupt and entered judgment for defendant.

Plaintiff contends that by failing to list all of his creditors in his financial statement defendant signed and submitted to plaintiff a materially false statement; and that the trial judge “had no power to permit the defendant-appellee to amend his answer to add that he obtained a discharge.”

In the case of Ohio Finance Company v. Greathouse, 64 Abs 1, upon which plaintiff relies to support its first contention, this court said:—

“A discharge in bankruptcy does not relieve a defendant from liability on his promissory note where the debt for which the note was given was created in reliance upon a materially false statement in writing made by defendant for the purpose of obtaining such credit from plaintiff, even though listed as a debt and notice given to plaintiff who made no objection to the discharge in the bankruptcy court.”
“A discharge in bankruptcy must be pleaded specially. A plea of adjudication in bankruptcy is not sufficient as a pleading of the defense of discharge.” 6 American Jurisprudence, Section 806, Page 1024.
“Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not substantially change the claim or defense, by conforming the pleading or proceeding to the facts proved. * * See. 2309.58 R. C.

In our opinion the evidence being in such conflict as to require the trial court to weigh the same we are unable to find that its finding and judgment are'against the manifest weight of the evidence nor that the trial judge abused his discretion in permitting defendant to amend his answer in the respects noted at the close of the evidence introduced in the trial court.

It is apparent from the law and the facts that the judgment of the trial court must be and is affirmed hereby.

GRIFFITH and NICHOLS, JJ, concur.


author: By MR. JUSTICE BRENNAN. By MR. JUSTICE BURTON whom MR. JUSTICE HARLAN joins. By MR. JUSTICE CLARK.

text:
    JENCKS, Petitioner, v. UNITED STATES OF AMERICA.
    United States Supreme Court.
    No. 23.
    Decided June 3, 1957.
   OPINION

By MR. JUSTICE BRENNAN.

On April 28, 1950, the petitioner, as president of Amalgamated Bayard District Union, Local 890, International Union of Mine, Mill & Smelter Workers, filed an “Affidavit of Non-Communist Union Officer” with the National Labor Relations Board, pursuant to §9(h) of the Taft-Hartley Act. He has been convicted under a two-count indictment charging that he violated 18 U. S. C. §1001 by falsely swearing in that affidavit that he was not on April 28, 1950, a member of the Communist Party or affiliated with such Party. The Court of Appeals for the Fifth Circuit affirmed the conviction, and also an order of the District Court denying the petitioner’s motion for a new trial. This Court granted certiorari.

Two alleged trial errors are presented for our review. Harvey F. Matusow and J. W. Ford, the Government’s principal witnesses, were Communist Party members paid by the Federal Eureau of Investigation contemporaneously to make oral or written reports of Communist Party activities in which they participated. They made such reports to the F. B. I. of activities allegedly participated in by the petitioner, about which they testified at the trial. Error is asserted in the denial by the trial judge of the petitioner’s motions to direct the Government to produce these reports for inspection and use in cross-examining Matusow and Ford. Error is also alleged in the instructions given to the jury on membership, affiliation, and the credibility of informers.

Former Party members testified that they and the petitioner, as members of the Communist Party of New Mexico, had been expressly instructed to conceal their membership and not to carry membership cards. They also testified that the Party kept no membership records or minutes of membership meetings, and that such meetings were secretly arranged and clandestinely held. One of the witnesses said that special care was taken to conceal the Party membership of members, like the petitioner, “occupying strategic and important positions in labor unions and other organizations where public knowledge of their membership to non-Communists would jeopardize their position in the organization.” Accordingly, the Government did not attempt to prove the petitioner’s alleged membership in the Communist Party on April 28, 1950, with any direct admissions by the petitioner of membership, by proof of his compliance with Party membership requirements, or that his name appeared upon a membership roster, or that he carried a membership card.

The evidence relied upon by the Government was entirely circumstantial. It consisted of testimony of conduct of the petitioner from early 1946 through October 15, 1949, and of Matusow’s testimony concerning alleged conversations between him and the petitioner at a vacation ranch in July or August 1950, and concerning a lecture delivered by the petitioner at the ranch. The Government also attached probative weight to the action of the petitioner in executing and filing an Affidavit of Non-Communist Union Officer on October 15, 1949, because of the events surrounding the filing of that affidavit. The Government bridged the gap between October 15, 1949, and July or August 1950 with the testimony of Ford that, during that period, the Party took no disciplinary action against the petitioner for defection or deviation, and did not replace the petitioner in the Party office which Ford testified the petitioner held as a member of the Party State Board.

The first alleged Party activity of the petitioner preceded his union employment. A witness, who was a Party member in the spring of 1946, testified that, at that time, he and the petitioner were present at a closed Party meeting at the home of the Party chairman for Colorado, where the petitioner, a veteran of World War II, led in urging that veterans who were Party members spread out into several veterans’ organizations and not all join the same one, the better to further Party work.

Later in 1946 the petitioner was employed by the Internationl Union of Mine, Mill & Smelter Workers as business agent for several local unions in the Silver City-Bayard, New Mexico, area. It was testified that one of the petitioner’s first acts was to meet with the International Union’s then Regional Director for the Southwest, a Communist Party member, and with the Communist Party organizer for the area, to develop plans for organizing a Party group within each of those locals, which later merged to form Amalgamated Local 890 under the petitioner’s presidency.

J. W. Ford was a member of the Communist Party of New Mexico from 1946 to September 1950 and, from 1948, was a member of the State Board and a Party security officer. He said that in 1948 he became a paid undercover agent for the F. B. I. and reported regularly upon Party activities and meetings. He testified that the petitioner was also a Party and a State Board member, and he related in detail occurrences at five closed Party meetings which he said the petitioner attended.

At the first meeting, in August 1948, Ford said the Party members worked out a plan to support the petitioner’s candidacy for Congress on the ticket of the Progressive Party. At the second meeting, in February 1949, Ford said that the petitioner and other Communist Party members were appointed delegates to a meeting of the Mexican-American Association in Phoenix, Arizona, to further a Party plan to infiltrate that organization and to use it for the Party’s purposes. At the third meeting,' in April 1949, Ford said that the Party’s state organization was completed, and the petitioner was appointed to the State Board and the Party leader in the southern half of the State. At the fourth meeting, in May 1949, Ford said that the petitioner gave a progress report upon his success in recruiting Party members among labor groups, and offered to use Local 890’s newspaper, “The Union Worker,” which he edited, to support issues of Party interest. At the fifth meeting, in August 1949, Ford said that preparations were made for another meeting later in that month of the Mexican-American Association in Albuquerque, and that the delegates, including the petitioner, were instructed to give vigorous support to the meeting but to take care not to make themselves conspicuous in the proceedings.

Ford’s duties as a Party security officer were to keep watch on all-Party members and to report “any particular defections from the Communist philosophy or any peculiar actions, statements or associations, which would endanger the security of the Communist Party of the state.” If any defection reported by a security officer were considered important, the member “would be called in and would be either severely reprimanded or criticized, or disciplined. If he refused to accept such discipline he would either be suspended or expelled.” Ford testified that between August 1949 and September 1950, when Ford ceased his activities with the New Mexico Party, there was no disciplinary action taken against the petitioner and, to his knowledge, the petitioner was not replaced in his position on the State Board of the Communist Party.

The events leading up to the petitioner’s execution and filing, on October 15, 1949, of an Affidavit of Non-Communist Union Officer were testified to by a former International Union representative, a Communist Party member during 1947 to 1949. He said that, about 17 months before, in May or June 1948, a meeting of Party members, holding offices in locals of the International Union of Mine, Mill & Smelter Workers, was held in Denver to formulate plans for combatting a movement, led by non-Communists, to secede from the International Union. He said that the Party members, including the petitioner, were informed of Party policy not to sign affidavits required by §9 (h) of the then recently enacted Taft-Hartley Act. There was no testimony that that policy changed before October 15, 1949.

The affidavit was filed shortly before a C. I. O. convention was scheduled to expel the Mine-Mill International and other unions from its membership. After filing the affidavit, the petitioner and other Local 890 officers published an article in “The Union Worker” charging that the contemplated C. I. O. action was part of a program of “right-wing unions . . . gobbling up chunks of militant unions. . . . Our International Union and its officers have swallowed a lot of guff, a lot of insults. But that is not the point. . . . Now that our Union has signed the phony affidavits we can defend ourselves ... in case of raids. We do not fear attack from that quarter any longer.”

Matusow was a member of the Communist Party of New York and was a paid undercover agent for the P. B. I. before he went to New Mexico. In July or August 1950, he spent a 10-day vacation on a ranch near Taos, New Mexico, with the petitioner and a number of other people. He testified to several conversations with the petitioner there. He said he twice told the petitioner of his desire to transfer his membership from the New York to the New Mexico Party, and that on both occasions the petitioner applauded the idea and told him, “we can use you out here, we need more active Party members.” On one of these occasions, Matusow said, the petitioner asked him for suggestions for a lecture the petitioner was preparing for delivery at the ranch, particularly as to what the New York Communists were doing about the Stockholm Peace Appeal. Matusow described to the petitioner a “do-day” program adopted in New York when the Party members were doers, not talkers, and performed some activity, such as painting signs around a baseball stadium urging support for the Peace Appeal. He testified that the petitioner showed great interest in the idea and said he might bring it back to his fellow Party members in Silver City.

Matusow testified that the petitioner delivered his planned lecture, informed his audience of the “do-day” idea, praised the Soviet Union’s disarmament plan, referred to the United States as the aggressor in Korea, and urged all to read the “Daily People’s World,” identified by Matusow as the “West Coast Communist Party newspaper.” Another witness, an expelled member of Amalgamated Local 890, testified that petitioner, during 1950, 1951 and 1952, repeatedly urged at union meetings that the union members read that paper.

Matusow also testified that, in one of their conversations, the petitioner told him of a program he was developing with leaders of the Mexican Miners’ Union to negotiate simultaneous expiration dates of collective bargaining agreements, to further a joint action of Mexican and American workers to cut off production to slow down the Korean War effort. Matusow also testified that when he told the petitioner that he had joined the Taos Chapter of the Mexican-American Association, the petitioner told him that this was proper Communist work because the Association was a key organization, controlled by the Party, for Communist activities in New Mexico and that he, the petitioner, was active in the Association in the Silver City area.

Ford and Matusow were subjected to vigorous cross-examination about their employment as informers for the F. B. I. Ford testified that in 1948 he went to the F. B. I. and offered his services, which were accepted. He thereafter regularly submitted reports to the F. B. I., “sometimes once a week, sometimes once a month, and at various other times; maybe three or four times a week, depending on the number of meetings . . . [he] attended and the distance between the meetings.” He said that his reports were made immediately following each meeting, while the events were still fresh in his memory. He could not recall, however, which reports were oral and which in writing.

The petitioner moved “for an order directing an inspection of reports of the witness Ford to the Federal Bureau of Investigation dealing with each of the meetings which he said that he attended with the defendant Jencks in the years 1948 and 1949.” The trial judge, without stating reasons, denied the motion.

Matusow, on his cross-examination, testified that he made both oral and written reports to the F. B. I. on events at the ranch, including his conversations with the petitioner. The trial judge, again without reasons, denied the motion to require “the prosecution to produce in Court the reports submitted to the F. B. I. by this witness [Matusow] concerning matters which he saw or heard at the . . . Ranch during the period that he was a guest there. . . ."

The Government opposed petitioner’s motions at the trial upon the sole ground that a preliminary foundation was not laid of inconsistency between the contents of the reports and the testimony of Matusow and Ford. The Court of Appeals rested the affirmance primarily upon that ground.

Both the trial court and the Court of Appeals erred. We hold that the petitioner was not required to lay a preliminary foundation of inconsistency, because a sufficient foundation was established by the testimony of Matusow and Ford that their reports were of the events and activities related in their testimony.

The reliance of the Court of Appeals upon Gordon v. United States, 344 U. S. 414, is misplaced. It is true that one fact mentioned in this Court’s opinion was that the witness admitted that the documents involved contradicted his testimony. However, to say that Gordon held a preliminary showing of inconsistency a prerequisite to an accused’s right to the production for inspection of documents in the Government’s possession, is to misinterpret the Court’s opinion. The necessary essentials of a foundation, emphasized in that opinion, and present here, are that “[t]he demand was for producton of . . specific documents and did not propose any broad or blind fishing expedition among documents possessed by the Government on the chance that something impeaching might turn up. Nor was this a demand for statements taken from persons or informants not offered as witnesses.” (Emphasis added.) 344 U. S., at 419. We reaffirm and re-emphasize these essentials. “For production purposes, it need only appear that the evidence is relevant, competent, and outside of any exclusionary rule . . . .” 344 U. S., at 420.

The crucial nature of the testimony of Ford and Matusow to the Government’s case is conspicuously apparent. The impeachment of that testimony was singularly important to the petitioner. The value of the reports for impeachment purposes was highlighted by the admissions of both witnesses that they could not remember what reports were oral and what written, and by Matusow’s admission: “I don’t recall what I put in my reports two or three years ago, written or oral, I don’t know what they were.”

Every experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory. Flat contradition between the witness’s testimony and the version of the events given in his reports is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examing process of testing the credibility of a witness’ trial testimony.

Requiring the accused first to show conflict between the reports and the testimony is actually to deny the accused evidence relevant and material to his defense. The occasion for determining a conflict cannot arise until after the witness has testified, and unless he admits conflict, as in Gordon, the accused is helpless to know or discover conflict without inspecting the reports. A requirement of a showing of conflict would be clearly incompatible with our standards for the administration of criminal justice in the federal courts and must therefore be rejected. For the interest of the United States in a criminal prosecution “. . .is not that it shall win a case, but that justice shall be done. . . .” Berger v. United States, 295 U. S. 78, 88.

“. . . Upon a proper showing that the Government has possession of such inconsistent statements and the presence of the other requisite conditions, a person charged with crime would be permitted to examine and use them. But no such showing was made here . . .” 226 F. 2d, at 552.

This Court held in Goldman v. United States, 316 U. S. 129, 132, that the trial judge had discretion to deny inspection when the witness . . does not use his notes or memoranda [relating to his testimony] in court . . . .” We now hold that the petitioner was entitled to an order directing the Government to produce for inspection all reports of Matusow and Ford in its possession, written and, when orally made, as recorded by the F. B. I., touching the events and activities as to which they testified at the trial, we hold, further, that the petitioner is entitled to inspect the reports to decide whether to use them in his defense. Because only the defense is adequately equipped to determine the effective use for purpose of discrediting the Government’s witness and thereby furthering the accused’s defense, the defense must initially be entitled to see them to determine what use may be made of them. Justice requires no less.

The practice of producing government documents to the trial judge for his determination of relevancy and materiality, without hearing the accused, is disapproved. Relevancy and materiality for the purposes of production and inspection, with a view to use on cross-examination, are established when the reports are shown to relate to the testimony of the witness. Only after inspection of the reports by the accused, must the trial judge determine admissibility — e. g., evidentiary questions of inconsistency, materiality and relevancy — of the contents and the method to be employed for the elimination of parts immaterial or irrelevant. See Gordon v. United States, 344 U. S., at 418.

In the courts below the Government did not assert that the reports were privileged against disclosure on grounds of national security, confidential character of the reports, public interest or otherwise. In its brief in this Court, however, the Government argues that, absent a showing of contradiction, “[t]he rule urged by petitioner . . . disregards the legitimate interest that each party — including the Government — has in safeguarding the privacy of its files, particularly where the documents in question were obtained in confidence. Production of such documents, even to a court, should not be compelled in the absence of a preliminary showing by the party making the request.” The petitioner’s counsel, believing that Court of Appeals’’ decisions imposed such a qualification, restricted his motions to a request for production of the reports to the trial judge for the judge’s inspection and determination whether and to what extent the reports should be made available to the petitioner.

It is unquestionably true that the protection of vital national interests may militate against public disclosure of documents in the Government’s possession. This has been recognized in decisions of this Court in civil causes where the Court has considered the statutory authority conferred upon the departments of government to adopt regulations “not inconsistent with law, for . . . use ... of the records, papers . .. appertaining” to his department. The Attorney General has adopted regulations pursuant to this authority declaring all Justice Department records confidential and that no disclosure, including disclosure in response to subpoena, may be made without his permission.

But this Court has noticed, in United States v. Reynolds, 345 U. S. 1, the holdings of the Court of Appeals for the Second Circuit that, in criminal causes .. the Government can invoke its evidentiary privileges only at the price of letting the defendant go free. The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense. . . .” 345 U. S., at 12.

In United States v. Andolschek, 142 F. 2d 503, 506, Judge Learned Hand said:

“. . . While we must accept it as lawful for a department of the government to suppress documents, even when they will help determine controversies between third persons, we cannot agree that this should include their suppression in a criminal prosecution, founded upon those very dealings to which the documents relate, and whose criminality they will, or may, tend to exculpate. So far as they directly touch the criminal dealings, the prosecution necessarily ends any confidential character the documents may possess; it must be conducted in the open, and will lay bare their subject matter. The government must choose; either it must leave the transactions in the obscurity from which a trial will draw them, or it must expose them fully. Nor does it seem to us possible to draw any line between documents whose contents bears directly upon the criminal transactions, and those which may be only indirectly relevant. Not only would such a distinction be extremely difficult to apply in practice, but the same reasons which forbid suppression in one case forbid it in the other, though not, perhaps, quite so imperatively. . . .”

We hold that the criminal action must be dismissed when the Government, on the ground of. privilege, elects not to comply with an order to produce, for the accused’s inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial. Accord, Roviaro v. United States, 353 U. S. 53, 60-61. The burden is the Government’s, not to be shifted to the trial judge, to decide whether the public prejudice of allowing the crime to go unpunished is greater than that attendant upon the possible disclosure of state secrets and other confidential information in the the Government’s possession.

Reversed.

MR. JUSTICE FRANKFURTER joins the opinion of the Court, but deeming that the questions relating to the instructions to the jury should be dealt with, since a new trial has been directed, he agrees with the respects in which, and the reasons for which, MR. JUSTICE BURTON finds them erroneous.

MR. JUSTICE WHITTAKER took no part in the consideration or decision of this case.

CONCURRING OPINION

By MR. JUSTICE BURTON whom MR. JUSTICE HARLAN joins.

Because of the importance of this case to the administration of criminal justice in the federal courts, I believe it appropriate to set forth briefly the different route by which I reach the same result as does the Court.

Ford and Matusow, as the Court’s opinion indicates, were crucial government witnesses because their testimony supplied the principal evidence relating to the period immediately surrounding the filing of petitioner’s allegedly false affidavit. Cross-examination brought out the fact that each had made oral or written reports to the Federal Bureau of Investigation relating to the respective events about which each had testified on direct examination. Having established that fact, petitioner sought an order requiring the Government to produce, for inspection by the court, the reports relating to those matters about which each witness had testified. The procedure to be followed was carefully specified: the court was to determine whether the reports had evidentiary value for impeachment of the credibility of Ford or Matusow; if the court found that they had value for that purpose, it was then to make them available to petitioner for his use in cross-examination. The Government opposed each motion on the ground that no showing of contradiction between the witness’s testimony and his reports had been made as required by a controlling Fifth Circuit decision, Shelton v. United States, 205 F. 2d 806. Apparently on that ground, the trial court denied the motions.

Petitioner’s requests were limited to a narrow category of reports dealing with specified meetings and conversations. The purpose of the requests — to impeach the credibility of crucial government witnesses— was made clear. Petitioner did not ask to inspect the documents himself; he sought access only to those portions of the reports which the trial court might determine to have evidentiary value for impeachment purposes, and to be unprivileged.

I agree that, under such circumstances, it was unnecessary for petitioner to show that Ford’s and Matusow’s trial testimony was contradicted in some respect by their contemporaneous reports. Although some federal courts have required a showing of contradiction, this Court never has done so. A rule requiring a showing of contradiction in every case would not serve the ends of justice. I concur, therefore, in that porton of the Court’s opinion holding that petitioner laid a sufficient foundation for the production of the reports.

I would not, however, replace the inflexible and narrow rule adopted by the courts below with the broader, but equally rigid rule announced by the Court. In matters relating to the production of evidence or the scope of cross-examination, a “large discretion must be allowed the trial judge.” Goldman v. United States, 316 U, S. 129, 132; Glasser v. United States, 315 U. S. 60, 83; Alford v. United States, 282 U. S. 687, 694. The appropriate determination of a motion to produce reports made in connection with the examination of a witness depends upon the significance of the facts sought to be established, and upon the potential use of the requested document in proving those facts. Since that determination depends on “numerous and subtle considerations difficult to detect or appraise from a cold record . . .,” the trial court’s discretion should be upheld in the absence of a “clear showing of prejudicial abuse of discretion Cf. Michelson v. United States, 335 U. S. 469, 480. We have so held even when the documents sought to be produced have been used at the triál for the purpose of refreshing a witness’s recollection. United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 232-234. When the documents have not been so used and are sought only to impeach the credibility of adverse witnesses, and not to prove the facts stated therein, the same conclusion is even more compelling.

The Court goes beyond the request of petitioner that reports be produced for examination by the trial court and, in effect, seems to hold that the Government waives any privileges it may have with respect to documents in its possession by placing the author of those documents on the witness stand in a criminal prosecution. The Government’s privileges with respect to state secrets and the identity of confidential informants embody important considerations of public policy. They are peculiar privileges in that they require the withholding of evidence not only from the jury, but also from the defendant. See Roviaro v. United States. 353 U. S. 53 (identity of informers); Reynolds v. United States, 345 U. S. 1 (state secrets). Once the defendant learns the state secret or the identity of the informer, the underlying basis for the privilege disappears, and there usually remains little need to conceal the privileged evidence from the jury. Thus, when the Government is a party, the preservation of these privileges is dependent upon nondisclosure of the privileged evidence to the defendant. This makes it necessary for the trial court, before disclosing the privileged material to the defendant, to pass on the question by examining in camera the portions claimed to be privileged. Cf. Bowman Dairy Co. v. United States, 341 U. S. 214, 221. There is nothing novel or unfair about such a procedure. According to Wig-more, it is customary.

. . it is obviously not for ths witness to withhold the documents upon his mere assertion that they are not relevant or that they are privileged. The question of Relevancy is never one for the witness to concern himself with; nor is the applicability of a privilege to be left to his decision. It is his duty to bring what the Court requires; and the Court can then to its own satisfaction determine by inspection whether the documents produced are irrelevant or privileged. This does not deprive the witness of any rights of privacy, since the Court’s determination is made by its own inspection, without submitting the documents to the opponent’s view . . . (Emphasis deleted and supplied.) VIII Wigmore, Evidence (3d ed. 1940), 117-118.

Numerous federal decisions have followed this practice with respect to the type of documents here involved — Contemporaneous reports made by a government investigator or informer who later testifies at the trial. This procedure protects the legitimate public interest in safe-guarding executive files. It also respects the interests of justice by permitting an accused to receive all information necessary to his defense. The accused is given an opportunity to argue that the privilege asserted by the Government is inapplicable and that, even if applcable, his need for the evidence, under the circumstances of the case, outweighs the Government’s interest in maintaining secrecy. The problem is closely related to that involved in Roviaro v. United States, supra, dealing with the necessity of the disclosure of an informer’s identity in a criminal case. There this Court said:

“[N]o fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” 353 U. S., at 62.

The trial judge exercises his discretion with knowledge of the issues involved in the case, the nature and importance of the Government’s interest in maintaining secrecy, and the defendant’s need for disclosure. By vesting this discretion in the trial judge, the conflicting interests are balanced, and a just decision is reached in the individual case without needless sacrifice of important public interests.

I also disagree with the Court’s holding that the failure to produce the records to petitioner necessitates a new trial. Petitioner requested only that the records be produced to the trial court. He is entitled to no more. Whether a new trial is required should depend on the contents of the requested reports. If the reports contain material that the trial court finds has evidentiary value to petitioner, a new trial should be granted in order that petitioner may use it. But if the reports do not contain contradictory or exculpatory material helpful to petitioner, no possible prejudice could have resulted from the trial court’s denials of petitioner’s motions. Were it not for the fact that I believe the trial court committed reversible error in instructing the jury with respect to the meaning of membership and affiliation, I would vacate the judgment below and remand to the trial court with instructions to examine the reports and to determine, in the light of the entire record, whether the failure to produce the reports was prejudicial to petitioner.

However, I believe the trial court failed to give the jury sufficient guidance with respect to the meaning of the phrases “member of the Communist Party,” and “affiliated with such party” as they are used in §9(h) of the Labor Management Relations Act, 61 Stat. 146, 29 U. S. C. §159(h). The instruction given as to membership was as follows:

“In considering whether or not the defendant was a member of the Communist Party, you may consider circumstantial evidence, as well as direct. You may consider whether or not he attended Communist Party meetings, whether or not he held an office in the Communist Party, whether or not he engaged in other conduct consistent only with membership in the Communist Party and all other evidence, either direct or circumstantial, which bears or may bear upon the question of whether or not he was a member of the Communist Party on April 28, 1950.”

This instruction failed to emphasize to the jury the essential element of membership in an organized group — the desire of an individual to belong to the organization and a recognition by the organization that it considers him as a member.

The instruction on affiliation also was defective. After quoting dictionary definitions employing synonymous words, the trial court merely said: “Affiliation . . . means something less than membership but more than sympathy. Affiliation with the Communist Party may be proved by either circumstantial or direct evidence, or both.” This instruction allowed the jury to convict petitioner on the basis of acts of intermittent cooperation. It did not require a continuing course of conduct “on a fairly permanent basis” “that could not be abruptly ended without giving at least reasonable cause for the charge of a breach of good faith.”

Because of these errors in the instructions, petitioner is entitled to a new trial. Accordingly, I concur in the judgment of the Court.

DISSENTING OPINION

By MR. JUSTICE CLARK.

The Court holds “that the criminal action must be dismissed when the Government, on the grounds of privilege, elects not to comply with an order to produce, for the accused’s inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial.” This fashions a new rule of evidence which is foreign to our federal jurisprudence. The rule has always been to the contrary. It seems to me that proper judicial administration would require that the Court expressly overrule Goldman v. United States, 316 U. S. 129, 132 (1942), which is contra to the rule announced today. But that is not done. That case is left on the books to haunt lawyers and trial courts in their search for the proper rule. In Goldman the Court was unanimous on the issue of disclosure of documents and refused to order produced “notes and memoranda made by the [federal] agents during the investigation.” The rule announced today has no support in any of our cases. Every federal judge and every lawyer of federal experience knows that it is not the present rule. Even the defense attorneys did not have the temerity to ask for such a sweeping decision. They only asked that the documents be delivered to the judge for his determination of whether the defendant should be permitted to examine them. This is the procedure followed in some of our circuits. My Brother EURTON has clearly stated in his concurring opinion the manner in which this procedure works. Perhaps here with a recanting witness the trial judge should have examined the specific documents called for, as the defense requested, and if he thought justice required their delivery to the defense, order such delivery to be made. I would have no objection to this being done. But as Brother BURTON points out, this would not require a reversal but merely a vacation of the judgment and a remand to the trial court for that purpose.

Unless the Congress changes the rule announced by the Court today, those intelligence agencies of our Government engaged in law enforcement may as well close up shop for the Court has opened their files to the criminal and thus afforded him a Roman holiday for rummaging through confidential information as well as vital national secrets. This may well be a reasonable rule in state prosecutions where none of the problems of foreign relations, espionage, sabotage, subversive activities, counterfeiting, internal security, national defense, and the like exist, .but any person conversant with federal government activities and problems will quickly recognize that it opens up a veritable Pandora’s box of troubles. And all in the name of justice. For over eight score years now our federal judicial administration has gotten along without it and today that administration enjoys the highest rank in the world.

Director J. Edgar Hoover back in 1&50 tellingly pointed this out before a Subcommittee of the Committee on Foreign Relations of the United States Senate. Among other things he said, “I have always maintained the view that if we were to fully discharge the serious responsibilities imposed upon us, the confidential character of our files must be inviolate. . . . [UJnless we drastically change or circumscribe our procedures, they should not be disclosed.” In describing the files. of the Bureau, he continued:

“FBI reports set forth all details secured from a witness. If those details were disclosed, they could be subject to misrepresentation, they could be quoted out of context, or they could be used to thwart truth, distort half-truths, and misrepresent facts. The raw material, the allegations, the details of associations, and compilation of information . . . are of value to an investigator in the discharge of his duty. These files were never intended to be used in any other manner and the public interest would not be served by the disclosure of their contents.
“These files contain complaints, allegations, facts, and statements of all persons interviewed. Depending upon the purpose of the investigation, particularly in security cases, they contain, not only background data on the individual but details of his private life . . . the identities of our confidential sources of information and full details of investigative techniques. In short, they consist of a running account of all that transpires.
* * * # #
“For want of a more apt comparison, our flies can be compared to the notes of a newspaper reporter before he has culled through the printable material from the unprintable. The files do not consist of proven information alone. . . . One report may allege crimes of a most despicable type, and the truth or falsity of these charges may not emerge until several reports are studied, further investigation made, and the wheat separated from the chaff.
“If spread upon the record, criminals, foreign agents, subversives, and others would be forewarned and would seek methods to carry out their activities by avoiding detection and thus defeat the very purposes for which the FBI was created.” Hearings before a Subcommittee of the Senate Committee on Foreign Relations on S. Res. 231, 81st Cong., 2d Sess. 327-329.

I can add nothing to this graphic expression of the necessity for the existence of the rule which, until today, kept inviolate investigative reports.

My Brother BURTON’S concurrence also points up the failure of the majority to pass upon another important question involved, namely, the sufficiency of the trial judge’s instructions. The impact of this failure on him and on my Brother FRANKFURTER was such that they have announced their own views though the majority never reaches the point. For myself alone, I believe that the instructions on the whole were sufficient. It is unfortunate that the majority does not announce its position. This is only one of some 10 Communist affidavit cases now pending in the trial and appellate courts. Unless this case goes as did Gold’s, the question of the sufficiency of instructions will come up in this as well as in each of the other cases. The Court is sorely divided on this important issue and proper judicial administration requires that charges as to what constitutes membership and affiliation in the Communist Party be announced.

      . 61 Stat. 143, as amended, 65 Stat. 602, 29 U. S. C. §159 (h).
      Section 9(h) provides that processes of the National Labor Relations Board will be unavailable to a labor organization “. . . unless there is on file with the Board an affidavit executed ... by each officer of such labor organization . . . that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods. . . .”

      . 62 Stat. 749.

      . 226 F. 2d 540.

      . 226 F. 2d 553.

      . 350 U. S. 980.

      . Because of our disposition of this case, it is unnecessary to consider the alleged errors in these instructions.

      . From 1948 through 1953, Ford was paid $7,025 for his services. Of that sum, approximately $3,325 covered the period to which his testimony related.

      . Other activities of Matusow are described in Communist Party of the United States v. Subversive Activities Control Board, 351 U. S. 115, and United States v. Flynn, 130 F. Supp. 412.

      . Matusow recanted as deliberately false the testimony given by him at the trial. On the basis of this recantation, the petitioner moved for a new trial, while his appeal from the conviction was pending, on grounds of newly discovered evidence. After extended hearings, the District Court denied the motion.

      . During the hearings on the motion for a new trial, the petitioner made several requests for the production of documents in the possession of the Government, relating to the testimony given. These motions were denied. Because of our disposition of this case, it is unnecessary to consider these rulings.

      . In upholding the refusal to require the production of the reports, the Court of Appeals said:

      . Cf. United States v. Burr, 25 Fed. Cas. 187, wherein Chief Justice Marshall, when confronted with a request for the inspection of a letter addressed to the President and in the possession of the attorney for the United States, stated:
      “Now, if a paper be in possession of the opposite party, what statement of its contents or applicability can be expected from the person who claims its production, he not precisely knowing its contents? . . .
      “. . . It is objected that the particular passages of the letter which are required are not pointed out. But how can this be done while the letter itself is withheld? . . .” 25 Fed. Cas., at 191.

      . United States v. Schneiderman, 106 F. Supp. 731; People v. Dellabonda, 265 Mich. 486, 251 N. W. 594; see Canon 5, American Bar Association, Canons of Professional Ethics (1947).

      . Chief Justice Marshall also said in United States v. Burr, 25 Fed. Cas. 187:
      “Let it be supposed that the letter may not contain anything respecting the person now before the court. Still it may respect a witness material in the case, and become important by bearing on his testimony. Different representations may have been made by that witness, or his conduct may have been such as to affect his testimony. In various modes a paper may bear upon the case, although-before the case be opened its particular application cannot be perceived by the judge. . . 25 Fed. Cas., at 191.
      What is true before the case is opened is equally true as the case unfolds. The trial judge cannot perceive or determine the relevancy and materiality of the documents to the defense without hearing defense argument, after inspection, as to its bearing upon the case.

      . See, e. g., United States v. Grayson, 166 F. 2d 863, 869; United States v. Beekman, 155 F. 2d 580, 584; United States v. Ebeling, 146 F. 2d 254, 256; United States v. Cohen, 145 F. 2d 82, 92; United States v. Krulewitch, 145 F. 2d 76, 78.

      . R. S. §161, 5 U. S. C. §22; United States v. Reynolds, 345 U. S. 1; cf. Totten v. United States, 92 U. S. 105.

      . Atty. Gen. Order No. 3229, 28 CFR, 1946 Supp., §51.71 (1939) ; Atty. Gen. Order No. 3229, Supp. 2, Pike & Fischer Admin. Law (2d), Dept, of Justice 1 (1947); Atty. Gen. Order No. 3229, Rev., 18 Fed. Reg. 1368 (1953).

      . United States v. Beekman, 155 F. 2d 580; United States v, Andolchek, 142 F. 2d 508,

      . In his brief, petitioner states:
      “Petitioner asked only that the reports be produced to the trial judge so that he could examine them and determine whether they had evidentiary value for impeachment purposes. Petitioner sought access only to tnose portions of the reports having this value. The motion therefore proposed no broad foray into the government’s files and afforded the judge every opportunity to protect the government’s legitimate privilege as to the matters not connected with this case.”

      . Scanlon v. United States, 223 F. 2d 382, 385-386; Shelton v. United States, 205 F. 2d 806, 814-815; Christoff el v. United States, 200 F. 2d 734, 737-739, rev’d on other grounds, 345 U. S. 947; D’Aquino v. United States, 192 F. 2d 338, 375; United States v. DeNormand, 149 F. 2d 622, 625-626; United States v. Ebeling, 146 F. 2d 254, 257; Little v. United States, 93 F. 2d 401; Arnstein v. United States, 296 F. 946, 950.

      . In Gordon v. United States, 344 U. S. 414, the petitioners had shown that written statements given to government agents by a key government witness contradicted the witness’s trial testimony. In holding that the trial court erred in denying petitioners’ motion for the production and inspection of these statements, the Court was deciding that case on its facts. I do not regard it as establishing a rule that a showing of contradiction is an essential element of the foundation precedent to production.

      . See, e. g., United States v. Coplon, 185 F. 2d 629, 638; United States v. Beekman, 155 F. 2d 580, 584; United States v. Cohen, 145 F. 2d 82, 92; United States v. Krulewitch, 145 F. 2d 76, 79; United States v. Flynn, 130 F. Supp. 412; United States v. Mesarosh, 116 F. Supp. 345, 350; United States v. Schneiderman, 106 F. Supp. 731, 735-738.

      . Privileged material sometimes can be excised from the reports without destroying their value to the defendant. Only when deletion is impracticable is the court compelled to choose between disclosing the document as a whole and withholding it completely. Material withheld from the defendant should be sealed as part of the record so that an appellate court may review the action of the trial court and correct any abuse of discretion.

      . See n. 1, supra.

      . Rule 52(a) of the Federal Rules of Criminal Procedure provides: “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” See Lutwak v. United States, 344 U. S. 604, 619; Kotteakos v. United States, 328 U. S. 750, 756-777. There are many cases in which nonproduction of documents has been held to be harmless error. Three comparatively recent cases, dealing with reports of law-enforcement officers are United States v. Sansone, 231 F. 2d 887; Montgomery v. United States, 203 F. 2d 887, 893-894; and Bunday v. United States, 193 F. 2d 694.

      . The trial court is the appropriate forum to consider the possible prejudicial effect of the error. See, e. g., Communist Party v. Subversive Activities Control Board, 351 U. S. 115; Remmer v. United States, 347 U. S. 227.

      . Fisher v. United States, 231 F. 2d 99, 106-107. See also, Ocon v, Guercio, 237 F. 2d 177; Baghdasarian v. United States, 220 F. 2d 677; Sigurdson v. Landon, 215 F, 2d 791; Dickhoff v. Shaughnessy, 142 F. Supp. 535.

      . United States ex rel Kettunen v. Keimer, 79 F. 2d 315, 317. See also, Bridges v. Wixon, 326 U. S. 135; Fisher v. United States, 231 F. 2d 99, 107-108.

      . Though the Court was divided on an issue not here material, the two dissenting opinions expressed no disagreement whatsoever on the disclosure issue.

      . The opinion cites only two of our cases for support. The quotations from Gordon v. United States, 344 U. S. 414 (1953), an opinion by my late Brother Jackson, a former Solicitor General and Attorney General, are lifted entirely out of context. The case holds explicitly that documents must be produced only after a foundation is laid “showing that the documents were in existence, were in possession of the Government, were made by the Government’s witness under examination, were contradictory of his present testimony, and that the contradiction was as to relevant, important and material matters which directly bore on the main issue being tried: the participation of the accused in the crime.” Id., at 418-419. Likewise, United States v. Reynolds, 345 U. S. 1 (1953), by my late Brother Chief Justice Vinson, approved the refusal of the Government to produce documents in a tort claims suit. The opinion gave no approval whatever to the conclusion announced by the majority here. I, purposely omitted the reference in the opinion after the penultimate sentence, “Accord, Roviaro v. United States, 353 U. S. 53, 60-61.” That case had to do with the disclosure of a dead informant’s name and did not touch on the problem of the disclosure of government documents.

      . In Gold v. United States, 352 U. S. 985 (1957), this Court reversed and remanded the case for a new trial because of official intrusion into the privacy of the jury. The case was dismissed on oral motion of the Government on May 9, 1957.


text:
    BURKHART, d. b. a. CORNER GRILL, Appellants-Appellees, v. DEPARTMENT OF LIQUOR CONTROL et, Appellees-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5538.
    Decided August 22, 1956.
    Isadora Topper, Columbus, for appellants-appellees.
    C. William O’Neill, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for appellees-appellants.
   OPINION

By THE COURT.

This is a motion filed by the appellees herein, Herman J. Burkhart and Gerald L. Weiss, seeking an order dismissing the appeal for the alleged reason that the Court does not have jurisdiction to hear an appeal filed by an administrative agency pursuant to §119.12 R. C., as amended in 1953, which is limited to reviewing the correctness of a judgment of the Court of Common Pleas that an order of an administrative agency is not supported by reliable, probative and substantial evidence in the entire record.

The record reveals that the appellees herein were charged with selling beer to a minor in violation of the provisions of the Liquor Control Act and Regulations of the Board of Liquor Control; that they were found guilty of the charge by the Board and appeal was prosecuted to the Court of Common Pleas which reversed the finding of the Board, the judgment entry reciting,

“Whereupon, the Court being fully advised in the premises and upon due consideration of the entire record finds, that there is no evidence in the record that appellants sold beer to a minor; that the order of the Beard of Liquor Control is not supported by reliable, probative and substantial evidence in the entire record and is not in accordance with law and that the order of the Board of Liquor Control should be reversed.”

The appeal and decision of the Court of Common Pleas did not involve the validity or construction of the statute or rule. The question here presented is whether in the absence of such showing the administrative agency may prosecute this appeal. A similar question was before this Court in the case of Katz v. Department of Liquor Control, being case No. 5434, unreported. Affirmed in 166 Oh St 229. We there held that an administrative agency could not appeal from the Court of Common Pleas to review solely the correctness of a judgment that an order of an administrative agency was not supported by reliable, probative and substantial evidence in the entire record. Although the decision, supra, was by a divided court, we adhere to our former ruling and sustain the motion to dismiss the appeal.

MILLER, PJ, WISEMAN, J, concur.

HORNBECK, J., dissents.


author: Ey WEICK, District Judge.

text:
    BAILEY, Admr., v. ERIE RAILROAD COMPANY, Defendant.
    United States District Court, N. D. Ohio, E. D.
    No. 30643.
    Decided July 13, 1956.

      Nathan Sieman, Warren, for plaintiff.
    Robert M. Weh, Cleveland, for defendant.
   OPINION

Ey WEICK, District Judge.

Plaintiff’s decedent was struck and killed by defendant’s westbound passenger train while he was walking across the railroad tracks at the grade crossing on South Main Street in Windham, Ohio, in broad daylight.

The administrator of his estate brought action in this court for wrongful death for the benefit of the next of kin. Jurisdiction of the court was based on diversity of citizenship.

The case was tried before a jury which failed to agree upon a verdict and was discharged. The court, thereupon, entered judgment for the defendant on its motion to arrest the testimony from the jury and for judgment which had been made at the conclusion of all the evidence, ruling on which had been reserved.

Plaintiff’s motion to vacate such judgment and for a new trial questions the propriety of the judgment entered by the court. Plaintiff claims that he had made a prima facie case requiring its submission to a jury and that the court, in entering judgment for defendant, usurped the functions of the jury.

At the time of the accident, decedent was 17 years old, weighed 170 pounds, was 6 feet 1 or 2 inches tall, and in “perfect health.” He had completed the tenth grade in the public schools. He had lived with his divorced mother for one year in Florida and shortly before the accident went to live with his father in Windham, Ohio.

One week before the accident, decedent had secured employment at a coal yard located adjacent to defendant’s right-of-way near to and southeast of the crossing in question. In connection with his employment, he passed over the crossing many times each day and was thoroughly familiar with it.

Two tracks of the defendant for east and westbound trains cross over South Main Street at grade. In addition to the usual crossing warning signs, the defendant had constructed, and maintained automatic flasher signal lights which were located on each side of the crossing and were in plain view.

- There was a clear and unobstructed view to the east for more than 800 feet at distances extending to 10 feet north of the crossing. Further view to the east was obstructed by a curve in the tracks to the south and the presence of a freight train on the eastbound tracks.

Just before the accident, the decedent had driven his employer’s truck from the coal yard across the tracks and parked it in a vacant lot north of the crossing. He was returning on foot to the coal yard and was walking toward the, tracks. When he reached the crossing an eastbound freight train was going over the crossing on the second track from the north. He waved at the flagman in the caboose. He kept on walking as the freight train cleared the crossing and was struck by the westbound passenger train on the first tracks.

The automatic flasher signal lights had commenced to operate when the eastbound freight train approached the crossing. They continued to operate until both trains had cleared the crossing.

The freight train was a long one. It consisted of 91 cars and extended about 4,207 feet in length. It was traveling at approximately 50 miles an hour, which would require about one minute to pass over the crossing.

The caboose of the freight train passed the engine of the passenger train from one to two car lengths east of the crossing.

The decedent must be held to have seen the flasher lights in operation when the freight train was passing over the crossing, as they were in plain view. He probably thought that the tracks were clear when the freight train passed over the crossing and did not contemplate the approach of the passenger train from the opposite direction on the other tracks.

Had decedent looked, he could have seen the passenger train at least 800 feet to the east. The passenger train was traveling at the rate of 60 miles an hour.

Decedent would not have been killed had he not walked on the tracks in disobedience to the warning of the flasher signal lights. The flashing of the lights was warning to him of the immediate approach of a train.

The flagman on the freight caboose saw decedent walking toward the tracks when decedent was within a distance of 10 to 12 feet therefrom.

The engineer on the passenger train saw decedent walking toward the tracks when decedent was within a distance of 4 to 7 feet therefrom. The passenger train engine at that time was 60 to 70 feet from the crossing.

The fireman on the passenger train saw decedent walking toward the tracks when decedent was about 10 feet away from the tracks and the engine about 800 feet east of the crossing.

Plaintiff’s witness, William D. Dugger, saw decedent standing in the street, but he did not know exactly where. The freight train was passing over the crossing at the time and Dugger and his two little children were watching the train and were north of and to the rear of the decedent. Dugger saw decedent take at least two steps forward when he was hit by the passenger train. Dugger testified that he didn’t pay enough attention to decedent to observe whether decedent looked to the right or left. Dugger did not see the passenger train until it struck decedent.

Dugger did see the flasher signal lights in operation when decedent approached the crossing. It was necessary, however, for his recollection to be refreshed by the statement he made shortly after the accident.

Decedent’s employer, Daniel L. Lutz, who also was called as a witness by plaintiff, testified on cross-examination that the flasher signal lights worked continuously while the freight train was going over the crossing until after the accident.

Catherine Hall, a neighbor who lived near the tracks, was called as a witness by defendant. She testified that the flasher lights were operating while the freight train was passing over the crossing and continued to flash as the passenger train came into the crossing.

The fireman on the passenger train saw the flasher lights still in operation after the accident.

The engineer on the passenger train testified as to the manner of operation of the flasher lights. An assistant signal supervisor testified that the flasher lights were operated from circuits located at 2,600 feet east and west of the crossing.

There was no evidence offered by plaintiff to contradict the overwhelming evidence as to the operation of flasher lights.

As to the statutory signals, both engineer and fireman testified positively that the bell on the engine was ringing continuously since the train left Warren. They also testified as to the blowing of the whistle when the train reached the whistle post about 1,700 feet east of the crossing; that the whistle was blown 4 times — 2 long and 2 short blasts.

The witness Lutz testified that he did not hear the whistle until after the passenger train had cleared the crossing. This did not create any issue of fact, as the witness was working on his truck at the time. The freight train was between the witness and the passenger train and was making noise. The witness admitted that the whistle might have been blown when the passenger train was from 1000 to 2000 feet away. See: Hicks v. Baltimore & O. R. Co., 160 Oh St 307, 52 O. O. 202, 116 N. E. (2d), 307; Clark v. Baltimore & O. R. Co. (6 Cir.), 48 O. O. 466, 64 Abs 431, 196 P. (2d), 206, certiorari denied in 344 U. S., 830, 73 S. Ct., 36, 97 L. Ed., 646.

The witness Dugger also testified that he did not hear the whistle or the bell. He was not paying particular attention. He was looking after his children. He also said that the whistle may have been blown, but he didn’t hear it. He testified that decedent was struck by the overhang of the diesel locomotive.

The flagman on the freight train did not hear the whistle or bell of the passenger train.

Mrs. Hall heard the whistle of the passenger train, but could not tell about where. She did not remember hearing the bell ringing.

There was no ground of negligence which required submission to the jury except possibly the issue of speed of the passenger train under the conditions then and there existing.

It must be remembered that the passenger train was out in the open country passing through a small country village. There were no speed limits fixed by law.

The rule of Hicks v. Baltimore & O. R. Co., supra, was applicable. This rule is that no rate of speed of a railroad train approaching a Crossing, in the absence of legislation, is of itself negligence. See: Pennsylvania R. Co. v. Stegaman (6 Cir.), 22 F. (2d), 69.

In reserving decision on defendant’s motion for judgment, the court followed the procedure recommended in the case of Fratta v. Grace Lines, Inc. (2 Cir.), 139 F. (2d), 743. There was no basis, therefore, for the conclusion drawn by counsel for plaintiff in his memorandum that in submitting the case to the jury, the court had determined that plaintiff had made out a prima facie case.

The legal presumption that each party was in the exercise of ordinary care prevails only until rebutted by evidence to the contrary. Biery v. Pennsylvania R. Co., 156 Oh St 75, 45 O. O. 70, 99 N. E. (2d), 895 (3rd syl.); Carson v. Metropolitan Life Ins. Co., 165 Oh St 238, 59 O. O. 310, 135 N. E. (2d), 259.

In the case at bar, substantial evidence was offered which rebutted the presumption that decedent was in the exercise of ordinary care.

The positive uncontradicted testimony was that the flasher signal lights were operating when decedent approached the crossing. It does not help plaintiff to claim that decedent may not have seen the flasher signal lights. The fact was that the flasher signal lights were there in operation and if plaintiff’s decedent did not see them, he did not look. The railroad company satisfied its obligation when it installed and operated the flasher signal lights. It had no means of compelling the decedent to look at them.

The decedent could have seen the approaching passenger train at least 800 feet away if he had looked. Since he was on foot he could easily have stopped walking or stepped away from the tracks if he had been too close thereto. The conclusion is inescapable that he never looked, as the train was there to be seen.

The law of Ohio required that the decedent look and listen for the approach of trains at a place where such looking and listening would be effective.

Counsel for plaintiff in his supporting-memorandum states that the decisions of the Supreme Court of Ohio on which the court relied in entering judgment for defendant are very old and are now outmoded. These cases are: New York, C. & St. L. R. Co. v. Kistler, 66 Oh St 326, 64 N. E., 130; Baltimore & O. R. Co. v. McClellan, 69 Oh St 142, 68 N. E. 816; Pennsylvania R. Co. v. Rusynik, 117 Oh St 530, 159 N. E., 826, 56 A. L. R., 538.

The cases have never been overruled by the Supreme Court. In fact, the Kistler case was cited in Hicks v. Baltimore & O. R. Co., supra, and by the Court of Appeals for this circuit in Pennsylvania R. Co. v. Stegaman, supra. The McClellan case was cited in Biery v. Pennsylvania R. Co., 156 Oh St 75, at page 79, 45 O. O. 70, at page 72, 99 N. E. (2d), 895. The Kistler case has been regarded as a landmark case in Ohio.

Under the doctrine of Tompkins v. Erie R. Co., 304 U. S., 64, 58 S. Ct., 817, 82 L. Ed., 1188, this court is bound to follow the decisions of the Supreme Court of Ohio in matters of state law and cannot overrule them. In West v. American T. & T. Co., 311 U. S., 223, 19 O. O. 77, 61 S. Ct., 179, 85 L. Ed., 139, this doctrine was extended to appellate decisions of the state. '

The Biery case was different from the case at bar. It involved a crossing about 186 feet in width with eleven tracks. A switch engine was standing near the crossing emitting steam which obscured view to the east.

In his closing argument to the jury counsel for plaintiff said:

“* * * What, happened is this: This train coming by at 65 to 70 miles an hour at such a rate pulled that boy in towards the corner of that train from where he was standing outside the train. The side of the train was two and a half feet outside the rails, mind you. The boy was standing at least two and a half feet outside of the rails and probably more. But the speed of this train pulled that boy by the suction of that passing train at 75 — 65 miles an hour, pulled that boy into the corner of the train and hit him when the boy was in the safe place before.”

The only trouble with this argument as to suction was that there was not one iota of evidence in the record to support it.

In the case at bar, reasonable minds could reach but one conclusion, namely, no negligence of the railroad was a proximate cause of the death of decedent and that decedent was guilty of contributory negligence as a matter of law which proximately caused his death.

The plaintiff’s motion to vacate the judgment and for a new trial is denied.