Bentivoglio v. Ralston
| Decision Date | 20 March 1972 |
| Citation | 447 Pa. 24,288 A.2d 745 |
| Parties | Vero BENTIVOGLIO, Appellant, v. James R. RALSTON, Appellee. |
| Court | Pennsylvania Supreme Court |
[Copyrighted Material Omitted]
Joseph V. Restifo, Philadelphia, for appellant.
Joseph G. Manta, James M. Marsh, Philadelphia, LaBrum & Doak Philadelphia, of counsel, for appellee.
Before JONES, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
In this action to recover damages for personal injury, the jury returned a verdict for the plaintiff against the defendant in the sum of $7500. Contending that trial errors influenced an inadequate and unfair award, the plaintiff filed a motion for a new trial limited to the question of damages. When the trial court denied this motion, and judgment was entered on the verdict, the plaintiff filed an appeal in the Superior Court. The judgment was subsequently affirmed, without opinion, with Judge Hoffman filing a dissenting opinion in which Judge Spaulding and Judge Cercone joined. See 218 Pa.Super. 121, 275 A.2d 691 (1971). We granted allocatur.
The action stemmed from a collision on March 16, 1963, between two automobiles; one operated by the plaintiff and the other by the defendant. Both vehicles were proceeding north on Roosevelt Boulevard in Philadelphia and admittedly the defendant's automobile ran into the rear of the plaintiff's automobile, after it had come to a stop because of a traffic light at the intersection where Red Lion Road crosses the Boulevard highway. The testimony, however, was in conflict as to exactly how long a period the plaintiff's automobile was stopped before the collision occurred, and also as to whether or not it had switched from one traffic lane to another immediately before being hit.
The litigation should have long since been finally resolved, nevertheless, we are persuaded another trial is unfortunately necessary.
The extent of the injuries suffered by the plaintiff as a result of the collision was vigorously disputed at trial, and the medical testimony offered by the defendant on this issue seriously conflicted with that offered by the plaintiff.
In the main, the plaintiff claimed that as a result of the accident he suffered an injury to his neck and back which necessitated the wearing of a neck collar and a back brace continuously for a period of approximately seven months, and the back brace intermittently thereafter up to the date of trial; that he also suffered a loss of the motor muscles in his legs; and that immediately after the accident he incurred psychoneurotic impotence which denied him the ability to enjoy sexual relations with his wife.
An orthopedic surgeon offered as an expert witness by the defendant (who examined the plaintiff on one occasion) stated that he could find nothing wrong with the plaintiff's neck or back. This witness also attributed the impairment of the muscles in the plaintiff's legs to poor diet, advanced age and nervousness. A psychiatrist-neurologist called by the defendant, testified that from his examination of the plaintiff he could find no organic cause for the alleged impotence and expressed the belief that if such a condition existed, it was due to causes not connected with the accident, possibly plaintiff's 'advanced age', [1] and/or an operation plaintiff had undergone on the epididymis about three weeks after the accident.
To support his claim that the injury to his back, neck and legs was due to the accident, the plaintiff offered the trial testimony of a Dr. Abrahamson who treated him from March 1963 to the end of 1964. A neurologist-psychiatrist also testified on plaintiff's behalf and stated that the impotence was definitely caused by the accident. During his own testimony, the plaintiff said that in addition to the physicians who testified at trial, he was given medical attention by a Dr. Rouse and a Dr. Polakoff while he was confined in the Nazareth Hospital in Philadelphia as a patient of Dr. Abrahamson, and after leaving the hospital he 'saw' a Dr. Kyle, a urologist, on three occasions; a Dr. Wolgin, an internist; a Dr. Joyce, an orthopedist; a Dr. Waldron; a Dr. Coyle and a Dr. Linn. The number of visits to, and the nature of the treatments given by the last four mentioned physicians were not elicited either on direct or cross-examination.
The trial judge in his charge read a point for charge submitted by the defendant instructing the jury, 'You may draw an inference from the failure of the plaintiff to call as witnesses Dr. Linn, Dr. Polakoff, Dr. Rouse, Dr. Waldron, Dr. Joyce, Dr. Wolgin and Dr. Coyle, or to satisfactorily explain their absence, that if these doctors had been called to testify, their testimony would have been unfavorable to the plaintiff.'
Under the circumstances presented, the above instruction was error, and since it seriously affected the most important issue facing the jury, it was unquestionably prejudicial.
Generally, if a litigant fails to call a witness who presumably would support his allegation, the opposing party is entitled to have the jury instructed that it may infer that the witness, if called, would testify adversely to the party who failed to call him. Haas v. Kasnot, 371 Pa. 580, 92 A.2d 171 (1952); Moseley v. Reading Co., 295 Pa. 342, 145 A. 293 (1929); Abrams v. Crown, 178 Pa.Super. 407, 116 A.2d 331 (1955). But this rule is inapplicable if such witness is equally available to both sides of the litigation. Haas v. Kasnot, 377 Pa. 440, 105 A.2d 74 (1954); See also Davidson v. Davidson, 191 Pa.Super. 305, 156 A.2d 549 (1959). In other words, the inference is permitted only where the uncalled witness is peculiarly within the reach and knowledge of only one of the parties. Cf. 2 Wigmore, Evidence § 288 (3d ed. 1940).
Herein, the defendant took the pretrial deposition of the custodian of the records of Hazareth Hospital. The defendant, therefore was at least knowledgeable before trial of Dr. Rouse's and Dr. Polakoff's connection with the treatment of plaintiff's injuries. Moreover, the defendant took the pretrial deposition of the plaintiff and was afforded the opportunity of ascertaining at that time the identity of all doctors who had treated the plaintiff during his convalescence. Finally, the plaintiff's testimony as to the doctors who aided in the treatment of his injuries was given on the first of a five-day trial. Under the...
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