Bell v. Bihary
| Decision Date | 01 April 1975 |
| Court | Connecticut Supreme Court |
| Parties | Harry BELL v. Marie BIHARY |
Edward F. Kunin, Bridgeport, for appellant (plaintiff).
Peter J. Dauk, Bridgeport, with whom was Collin P. Baron, Bridgeport, for appellee (defendant).
Before HOUSE, C.J., and COTTER, LOISELLE, MacDONALD and LONGO, JJ.
The plaintiff was injured in an automobile collision on February 5, 1969, and brought suit to recover damages for his in juries and loss of earnings, and the jury returned a verdict in his favor in the amount of $2000. The plaintiff has appealed from the decision of the court denying his motion to set aside the verdict and the judgment rendered thereon, claiming as error a portion of the court's charge to the jury and also the inadequacy of the verdict. The defendant does not controvert her liability.
Since it is dispositive of the appeal, we need only reach the plaintiff's claim concerning the court's charge to the jury relative to the adverse inference to be drawn arising from the plaintiff's failure to call a medical witness. The correctness of the charge is determined by the claims of proof of the parties. Practice Book § 635; Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 586, 356 A.2d 873, 874; Maltbie, Conn.App.Proc. § 145.
The defendant claims to have proven that the plaintiff consulted several doctors after the accident, and after a later accident, he consulted a chiropractor, Alphonse M. Marino. After several visits with Dr. Marino, the plaintiff terminated treatments of his own volition. The plaintiff's counsel chose not to call Dr. Marino as a witness at the trial, although he could have done so by his own admission.
There are two prerequisites to the operation of the rule permitting an unfavorable inference from the failure of a party to call a witness: (1) the witness must be available; and (2) he must be a witness whom the party would naturally produce. Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598. It may be noted that the party claiming the benefit of the rule on the adverse inference must show that he is entitled to it; Raia v. Topehius, 165 Conn. 231, 237, 332 A.2d 93; Queen v. Gagliola, 162 Conn. 164, 169, 292 A.2d 890; and furthermore, the party against whose cause an unfavorable inference is claimed may, of course, offer evidence to explain the failure to produce the witness. Secondino v. New Haven Gas Co., supra. Thus, the defendant's claims of proof were sufficient to merit a charge on the matter of the nonproduction of Dr. Marino as a witness.
The court correctly charged the jury to the effect that the failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party's cause. A witness who would naturally have been produced by a party is one who is known to him and who, by reason of his relationship to the party or to the issues, or both, could reasonably have been expected to have peculiar or superior information which was material to the case and which would have been produced, had it been favorable. State v. Brown, 163 Conn. 52, 58, 301 A.2d 547; Secondino v. New Haven Gas Co., supra; Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461. Thus, if a jury finds that the witness' testimony would not be material or substantial to the case, it is not permitted to draw an adverse inference from his absence from the trial.
In addition, however, the court charged as follows: (Emphasis supplied.)
The portion of the charge which stated that 'most probably' the jury would not draw the unfavorable inference is not in accordance with the rule stated in Secondino v. New Haven Gas Co., supra. If the...
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