Bell v. Bihary

Decision Date01 April 1975
CourtConnecticut Supreme Court
PartiesHarry 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.

LONGO, Associate Justice.

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: 'This rule permits the jury to draw an inference that the testimony of that witness would have been unfavorable to him. It doesn't require it. If, in fact, you find that Dr. Marino could add nothing substantial or material to the plaintiff's case, then, most probably, under those circumstances, you would not draw the unfavorable inference. I believe that is a question of fact for you to determine under the circumstances with which we are faced here.' (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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21 cases
  • Blanchette v. Barrett
    • United States
    • Connecticut Supreme Court
    • 23 Marzo 1994
    ...A.2d 1366 (1993) (court has duty not to submit issue to jury if issue is not reasonably supported by the evidence); Bell v. Bihary, 168 Conn. 269, 273, 362 A.2d 963 (1975) (harmful error if jury charge permitted consideration of issue unsupported by More fundamentally, we disagree with the ......
  • Constantine v. Schneider
    • United States
    • Connecticut Court of Appeals
    • 14 Julio 1998
    ...have stressed that "[t]o be harmful, an error must be so fundamental and material that it may work an injustice." Bell v. Bihary, 168 Conn. 269, 273, 362 A.2d 963 (1975). In arguing for the admission of the videotape, the plaintiffs insisted that the work product rule applies only to pretri......
  • State v. Ross
    • United States
    • Connecticut Supreme Court
    • 26 Julio 1994
    ...212, 384 A.2d 616 (1978). Improperly instructing the jury that it may draw an adverse inference is harmful error. Bell v. Bihary, 168 Conn. 269, 273, 362 A.2d 963 (1975). Furthermore, as the majority opinion points out, all that the jury could glean from the cross-examinations of Borden and......
  • Hall v. Burns
    • United States
    • Connecticut Supreme Court
    • 23 Enero 1990
    ...(1988); Shelnitz v. Greenberg, 200 Conn. 58, 509 A.2d 1023 (1986); State v. Brown, 169 Conn. 692, 364 A.2d 186 (1975); Bell v. Bihary, 168 Conn. 269, 362 A.2d 963 (1975). This type of charge is known as the "Secondino charge." State v. Greene, supra, 209 Conn. at 469, 551 A.2d 1231. Under C......
  • Request a trial to view additional results

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