Doran v. Wolk

• Decision Date: 17 February 1976
• Citation: 170 Conn. 226,365 A.2d 1190
• Parties: Wallace W. DORAN v. Julius W. WOLK et al. Myrna WOLK et al. v. CHAPPELL EXPRESS, INC., et al.
• Court: Connecticut Supreme Court

Page 1190

365 A.2d 1190

170 Conn. 226

Wallace W. DORAN v. Julius W. WOLK et al.

Myrna WOLK et al. v. CHAPPELL EXPRESS, INC., et al.

Supreme Court of Connecticut.

Feb. 17, 1976.

Robert B. Cohen, Hartford, with whom, on the brief was John F. Droney, Jr., Hartoford, for appellants (defendants in the first case).

William F. Gallagher, New Haven, with whom, on the brief, was Cyril Cole, Hartford, for appellants (plaintiffs in the second case).

Sebastian J. Russo, Hartford, for appellee (plaintiff in the first case).

Robert C. Danaher, Hartford, with whom, on the brief, were Michael D. O'Connell, Hartford and R. Cornelius Danaher, Jr., West Hartford, for appellees (defendants in the second case).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

LOISELLE, Associate Justice.

These actions, which were tried together, arise from a motor vehicle accident that occurred in the city of Hartford on November 27, 1968. In the first action, the plaintiff, Wallace W. Doran, sought damages for personal injuries. In the second action, the plaintiffs Myrna Wolk and her two daughters sought damages for personal injuries and the plaintiff Julius Wolk sought damages for medical expenses incurred on behalf of his wife and daughters and for damages to his automobile. The jury rendered a verdict of $6000 in favor of the plaintiff Doran in the first action and a verdict in favor of the defendants, Doran and Chappell Express, Inc., in the second action.

We first consider the second action wherein the plaintiffs, Myrna and Julius Wolk and their daughters, have appealed and claim the court erred in its charge to the jury and in evidential rulings. ¹ It is undisputed that on November 27, 1968, Myrna Wolk, while driving her husband's automobile westerly on Hartford's Hamilton Street with her two daughters in the car, collided with a truck at the intersection of Pope Park Highway and Hamilton Street.

At the time of the collision, the truck, driven by the defendant, Wallace W. Doran, and owned by Doran's employer, defendant Chappell Express, Inc., was turning left from Hamilton Street's eastbound lane into Pope Park Highway.

The plaintiffs first claim the court erred in charging that the jury could draw an unfavorable inference because Julius Wolk failed to testify as there was no evidence showing his availability to testify. The defendants claim that as Julius Wolk is a party his availability need not be shown. The only mention of Julius Wolk in the plaintiffs' offers of proof is that he did not testify. In the defendants' offers of proof it is stated that Julius Wolk came to the scene of the accident; took all occupants of the Wolk vehicle to the hospital; drove his wife to see one doctor two days after the accident and sent her to see three other doctors; and helped his wife do the heavy housework after the accident. It is further stated, in the finding, that there was no evidence that Julius Wolk had any information to offer in connection with the liability aspects of the case; he did not testify at the trial; and neither Mrs. Wolk nor any witness explained why he was not present to testify.

During the charge, the court instructed the jury: '(T)he failure therefore of a party to produce a witness or certain evidence which it is within his power to produce and which he would naturally have produced to support his case does permit an inference that the evidence of that witness would have been unfavorable to that party's cause. . . . Now, if an available witness is not called, you . . . have the right to draw an inference that his testimony would be unfavorable to the party who would have naturally produced him.' The court then said Julius Wolk was also a plaintiff and was at the scene of the accident and had some knowledge of his wife's problems. It concluded, 'So the failure to call him as a witness would permit you to draw an inference that his testimony on the matters within his knowledge would have been unfavorable to his wife.'

If a party fails to call a witness, then the Secondino rule permits the jury to draw an inference that the witness's testimony would have been unfavorable to the party's cause if the jury first finds that: (1) the witness was available; and (2) the witness was one the party would naturally produce. Bell v. Bihary, 168 Conn. 269, 271, 362 A.2d 963; Raia v. Topehius, 165 Conn. 231, 237, 332 A.2d 93; Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598. To charge the jury on the rule, the party claiming the benefit of the rule must show that he is entitled to it. State v. Brown,169 Conn. 692, 704, 364 A.2d 186; Raia v. Topehius, supra; Queen v. Gagliola, 162 Conn. 164, 169, 282 A.2d 890. In Queen v. Gagliola,supra, the court implicitly overruled such cases as Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 343, 160 A.2d 899, which placed the burden of proof of nonavailability on the party who would naturally have produced the witness.

The basis of the rule is 'a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted.' Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461, 464 (quoting Lord Mansfield in Blatch v. Archer, 1 Cowper 63, 65); Secondino v. New Haven Gas Co., supra, 147 Conn. 674, 165 A.2d 598; Throckmorton v. Chapman, Conn. 441, 454, 32 A. 930. These cases and the legal authorities place the emphasis on the available testimony that is not produced. See cases cited supra; and, McCormick, Evidence (2d Ed.) § 272; 2 Wigmore, Evidence (3d Ed.) § 285.

The defendants contend that, when the witness is also a party, the party against whom the inference is made has the burden of showing nonavailability. They assert that a party would be expected to produce his own testimony, and that he is the most qualified person to comment on his availability. These assertions, however, are not persuasive to justify a special rule for party-witnesses. The same assertions can be made when the party and the witness are not the same person.

It is the party's testimony as a witness and not his relationship to the cause of action, or status, that determines the applicability of the inference. 'It would be generally agreed, to be sure, that the mere fact of the party's failure to testify is not of itself open to inference; it is his failure when he could be a useful and natural witness that is significant.' 2 Wigmore, Evidence (3d Ed.) § 289, p. 173. The party's availability as a witness, therefore, should be shown by the party to be benefited by the inference. See United Broadcasting Co., Inc. v. Armes, 506 F.2d 766, 770 (5th Cir.). The court erred by charging that the adverse inference could be drawn in the absence of an initial showing as to Julius Wolk's availability.

To require reversal, the error must be harmful. The defendants' offer of proof stating there was no evidence that Julius Wolk had any information or evidence to offer in connection with the liability aspects of the case was not attacked by the plaintiffs. Further, the charge of the court, although there was some memtion that Julius Wolk was at the scene of the accident, focused on his knowledge of his wife's physical problems following the accident. As the jury never reached the issue of damages, they were not likely to have been misled in their determination of the liabilities of the parties. Consequently, the error was harmless. Flynn v. Raccuia, 146 Conn. 210, 214, 148 A.2d 763.

The plaintiffs next claim error in the admission of certain testimony of Doran and a related exhibit. During direct examination, Doran testified that his doctor said he could only drive a truck professionally for another five or six years. Furthermore, the doctor told him his back condition and torn ligaments could not be remedied unless he stopped driving. Doran was then asked if he had received training as a truck driver. He answered that he had received instruction, at a school, concerning the operation and...