the examining physician for the respondents, which I have just referred to, that in some cases -- of which I find this to be one -- there is the necessity for mental rehabilitation which takes time even after the actual physical injury is cleared. The Doctor's charges were $5.00 for the first visit and $3.00 thereafter. I shall thus allow the libellant the sum of $23.00 for cure. This includes payment of the physician's services from December up to February, 1940.
The evidence as to maintenance shows it cost libellant $2.07 per day. The libellant should not be allowed any maintenance for the period when he was a patient for four days at the hospital in Baltimore. Moreover, as this court once before said:
"The ship is not an insurer and is not obligated to provide maintenance and cure beyond a reasonable period ( The Pochasset, D.C., 281 F. 874), nor for an indefinite length of time or where a cure has been effected as nearly as possible in a particular case." The respondents argued that as the doctors at the United States Marine Hospital and their own examining physician gave libellant a thirty-day disability, and libellant's private physician stated that ordinarily a sprain should be cured in several weeks, maintenance should not be allowed beyond the first of January, 1940. I think it more equitable, under the special findings made here, to grant maintenance up to the following month. Accordingly, I award the sum of $134.55 for maintenance.
II. During libellant's cross-examination of Dr. Russell, the following occurred:
"XQ. Dr. Russell, did you refresh your recollection in this case? A.Yes, I just looked at the report."
The proctor for libellant then asked for the production of all medical reports made by the witness with respect to the injury in suit, as well as to another injury which the libellant had sustained on the same ship some months previously. The demand was refused by the proctor for respondents on the ground that a cross-examiner is not entitled to inspect documents from which the witness has refreshed his memory while "off the witness stand." Apparently, the witness had re-read his reports at some time prior to the trial.
At the trial, I instructed respondents' proctor to produce, but reserved a final ruling until the determination of the case.
The law is clear that if Dr. Russell had refreshed his recollection by referring to his reports on the stand, libellant's proctor would have had the right to inspect them. See cases cited in annotation at 125 A.L.R. 194 et seq. Respondents concede this but argue that the rule is restricted to those instances where the witness refreshes his recollection "while on the witness stand." Though there are authorities to support this contention (5 Jones, Commentaries on Evidence, 2nd Ed., § 2387; United States v. Goldman, 2 Cir., 118 F.2d 310, certiorari granted 62 S. Ct. 119, 86 L. Ed. [vacating 313 U.S. 588, 61 S. Ct. 1109, 85 L. Ed. 1543, denying certiorari]; Lennon v. United States, 8 Cir., 20 F.2d 490), I do not find any rational basis for such a restriction of the rule.
Under what I consider the better view, the cross-examiner is entitled to inspect documents used by a witness to refresh his recollection, whether they are so used at the trial or prior to that time. 3 Wigmore, on Evidence, 3rd Ed., § 762; State v. Deslovers, 40 R.I. 89, 100 A. 64; Dr. R.D. Eaton Chemical Co. v. Doherty, 31 N.D. 175, 153 N.W. 966. Professor Wigmore suggests the wisdom of this view when he says (§ 762):
"The rule should apply, moreover, to a memorandum consulted for refreshment before trial and not brought by the witness into court; for, though there is no objection to a memory being thus stimulated, yet the risk of imposition and the need of safeguard is just as great. It is simple and feasible enough for the court to require that the paper be sent for and exhibited before the end of the trial."
The cross-examiner should be permitted to show that the memorandum is in conflict with the witness' testimony as to what his recollection is.
Thus, I now rule that libellant was entitled to examine and inspect the medical reports made by the respondents' witness.
The proctors for the parties may submit an appropriate order or decree. The findings of fact and conclusions of law herein stated are believed by me to be sufficient in accordance with the admiralty rule; but if the proctors prefer specific findings of fact and conclusions of law, they may submit their proposed findings for my consideration.