Grady v. Collins Transp. Co.

• Decision Date: 06 December 1960
• Citation: 170 N.E.2d 725,341 Mass. 502
• Parties: May V. GRADY v. COLLINS TRANSPORTATION COMPANY, Inc. Walter J. GRADY v. COLLINS TRANSPORTATION COMPANY, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 725

170 N.E.2d 725

341 Mass. 502

May V. GRADY v. COLLINS TRANSPORTATION COMPANY, Inc.

Walter J. GRADY v. COLLINS TRANSPORTATION COMPANY, Inc.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 26, 1960.

Decided Dec. 6, 1960.

Thomas S. Carey, Worcester, for plaintiffs.

Francis H. George, Worcester, for defendant.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

WHITTEMORE, Justice.

The plaintiffs took exceptions to that part of the charge which instructed that inferences might be drawn from the failure of the plaintiffs to call certain witnesses, and to a refusal of an instruction on the subject.

The plaintiff Walter J. Grady, Junior, twenty-six years of age, was injured on November 18, 1946, about midnight, when the automobile which he was operating, owned by his mother, May V. Grady, the other plaintiff, was in collision with the defendant's truck on Route 122 in North-bridge. Walter (hereinafter, the plaintiff) testified that 'four other boys,' whom he named, 'were in the car * * * one of them * * * in the front seat with * * * [him].' He saw them at the hospital in Whitinsville that night following the accident and he believed he discussed with them how the accident happened; he had not seen any of the four lately; he had given their names to his counsel; he did not know whether any effort had been made to see any of them lately; 'all * * * four boys lived in Worcester'; 'as far as I know' they 'still do.' The trial was held in September, 1955.

The plaintiff's testimony was that the truck was being driven around a curve partly on his side of the road. The defendant's driver testified that he was on his own side of the road; the Grady car came directly at him, and although he pulled over into the bank beside the road, Grady skinned along and hit the trailer. A police officer testified that after the accident Grady said that he was coming from a dance in Uxbridge and had no idea how fast he was going around the curve; he guessed he was going too fast to make the curve which he did not know was there as he was not acquainted with the road; when he came around the curve he thought he was going to hit a telephone pole 'so he pulled his car back to the left hand side of the road.' A second officer corroborated this testimony.

The refused request read: '[N]o inference is to be drawn against the plaintiff for failing to bring in any of the passengers who were riding in the auto operated by the plaintiff, because the defendant has a right to produce them, if he so desires.' The judge, in substance, charged that the obligation is on a party to produce witnesses in his control if it is reasonable to expect they would be helpful to him, but if not within his control, they are witnesses available to either side; the evidence showed that the plaintiff has not produced as witnesses guests in his car; he knows who they are; there is no evidence the defendant knows their names, or their availability; the defendant had a right to say to the plaintiff 'produce those witnesses,' otherwise, on the failure to produce them, the jury may draw any inference they wish which may be unfavorable to the plaintiff; after the accident one or more of the witnesses talked over with the plaintiff how it happened; 'those witnesses, it appears, live in Worcester'; their names were turned over to counsel for the plaintiff; the jury have not heard their testimony which 'may or may not help you'; there has been no explanation as to why the witnesses have not been brought in, 'whether they're sick or can't come to court'; 'you are warranted in drawing the inference [that] if these witnesses were here, they wouldn't help the plaintiff * * * simply that you are warranted in drawing that inference, not that you should.'

The applicable rule includes the requirement that if an inference against a party is based on the absence of a possible witness it must appear that the witness is in the control of the party and available. Commonwealth v. McCabe, 163 Mass. 98, 102-103, 39 N.E. 777. Heina v. Broadway Fruit Mkt. Inc., 304 Mass. 608, 611, 24 N.E.2d 510. Horowitz v. Bokron, 337 Mass. 739, 743-744, 151 N.E.2d 480. 'Control' in this connection means only that the witness is in such relationship with the party that it is likely that his presence could be procured. Commonwealth v. McCabe, 163 Mass. 98, 102-103, 39 N.E. 777. The word 'available' is sometimes used with a meaning similar to 'control.' See earlier Massachusetts cases cited below; McClanahan v. United States, 5 Cir., 230 F.2d 919, 926. (availability is to be determined not from mere physical presence or accessibility for service, but from the relationship or the nature of the expected testimony); McCormick, Evidence, § 249. In recent cases the meaning ascribed to the word is the narrower one of immediate physical availability. See, for example, Thornton v. First Natl. Stores, Inc., Mass., 163 N.E.2d 264 ¹ (that the physician was practising in Dedham at the time is not proof of 'actual availability'). There is not, however, an inflexible requirement for every case of proof of such actual availability.

The scope of the rule of availability is indicated in the review of earlier cases in Commonwealth v. Domanski, 332 Mass. 66, 70-71, 123 N.E.2d 368, 371. 'It is settled that 'where incriminating evidence has been introduced by the commonwealth and explanations consistent with his innocence could be produced by the defendant through witnesses other than himself, more likely to be known to him than to the representatives of the government, and he does not call such witnesses, his failure in this respect is fair matter for comment, and is not within the protection of the Constitution. * * * The inference drawn by common sense and approved by the law is that such evidence if presented would be unfavorable to the defendant.' Commonwealth v. Peoples Express Co., 201 Mass. 564, 581, 88 N.E. 420, 426; Commonwealth v. Clark, 14 Gray, 367; Commonwealth v. Harlow, 110 Mass. 411; Commonwealth v. Finnerty, 148 Mass. 162, 167, 19 N.E. 215; Commonwealth v. McCabe, 163 Mass. 98, 102, 39 N.E. 777. Commonwealth v. Spencer, 212 Mass. 438, 451, 99 N.E. 266. Commonwealth v. O'Rourke, 311 Mass. 213, 222, 40 N.E.2d 883. But as Knowlton, J., observed in discussing this principle in Commonwealth v. Finnerty, supra, 'If it did not appear that the defendant could easily call witnesses other than himself to explain * * * [the strong evidence of guilt introduced by the Commonwealth] if he were innocent, possible explanations might be conjectured which might make his guilt doubtful'. 148 Mass. at page 167, 19 N.E. at page 217. Continuing, he observed that the principle of allowing comment on the failure of a defendant to call witnesses was one to be 'applied cautiously, and with a strict regard for the rights or persons accused. The jury should ordinarily be instructed not to draw inferences from the neglect of a defendant to call witnesses, unless it appears to be within his power to call others than himself, and unless the evidence against him is so strong that, if innocent, he would be expected to call them.' 148 Mass. at page 167, 19 N.E. at page 217. But the foundation for comment was lacking here. There was nothing during the course of the trial to suggest that Green had witnesses available who were not brought forward.' (Emphasis supplied.)

Within the limits of the rule the trial judge may allow inference to be drawn if the evidence shows the probable availability to the party of the absent witnesses, the circumstances emphatically call for their presence if his testimony is to be believed, and no expanation has been offered of their absence. Commonwealth v. O'Rourke, 311 Mass. 213, 222, 40 N.E.2d 883.

In the O'Rourke case it was ruled that an inference could be drawn from the failure to call any of many persons whose names appeared on allegedly false nomination papers. The district attorney had already called five persons who had testified that their names on the paper had not been written by them. 'So many names * * * were on the papers that if they were genuine it would seem an easy matter to call in a few of the signers. * * * We cannot say as a matter of law that this omission [to call any of them] was wholly without significance' (311 Mass. at page 223, 40 N.E.2d at page 888). 'It is frequently held that where a witness is equally available to either party no inference can be drawn against either for not calling him. * * * But there is no hard and fast rule to that effect. Whether an inference can be drawn from the failure to call witnesses necessarily depends, as with inferences generally, upon the posture of the particular case and the state of the evidence' (311 Mass. at page 222, 40 N.E.2d at page 888).

The earlier decisions in criminal cases, a number of which are cited in the Domanski case, supra, although they must be read in the light of the recent restatements of the rule, retain significance in showing that the probability of availability may be enough where the occasion for calling the witnesses, or explaining their absence, is sufficiently strong. Commonwealth v. McCabe, 163 Mass. 98, 102-103, 39 N.E. 777, 779 (four men were present when the defendant was arrested. The jury might infer that the defendant 'would be likely to know their whereabouts, and that, if their testimony could help her, she would be able to procure their presence'). Commonwealth v. Finnerty, 148 Mass. 162, 167, 19 N.E. 215, 217 (Could the defendant 'easily call witnesses other than himself'? Does it appear 'to be within his power to call others than himself'?). Commonwealth v. Peoples Exp. Co., 201 Mass. 564, 581, 88 N.E. 420, 426 ('witnesses * * * more likely to be known to him than to the representatives of the government'). Commonwealth v. Sacco, 255 Mass. 369, 442-443, 151 N.E. 839 (friendly relations of witness to defendant; witness had been seen in an...