Laffin v. Ryan

• Decision Date: 08 May 1957
• Citation: 4 A.D.2d 21,162 N.Y.S.2d 730
• Parties: O'Donald Basil LAFFIN, Plaintiff-Respondent, v. Robert J. RYAN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 730

162 N.Y.S.2d 730

4 A.D.2d 21

O'Donald Basil LAFFIN, Plaintiff-Respondent, v. Robert J. RYAN, Defendant-Appellant.

Supreme Court, Appellate Division, Third Department.

May 8, 1957.

Kinkley & Burns, Watertown (Luke A. Burns, Jr., Watertown, of counsel), for appellant.

Arthur B. Hart, Massena (Albert Jacobson, New York City, of counsel; Benedict S. Rosenfeld, Canton, of counsel and on the brief), for respondent.

Before FOSTER, P. J., and BERGAN, COON, HALPERN and GIBSON, JJ.

HALPERN, Justice.

This is an appeal from a judgment for the plaintiff in the amount of $15,000 in an action for personal injuries. The amount of the verdict is attacked as excessive but, upon a review of the evidence, we find that it was well within the limits of the jury's discretion. The plaintiff suffered, as a result of the accident, a dislocated left hip, fractures of the pelvis, fractures of the ribs and an injury to one of his lungs. The only medical testimony in the case was to the effect that permanent disability had resulted from the injuries.

The principal question of law raised upon the appeal is the correctness of a request to charge granted by the court as to the effect of the defendant's failure to call a doctor who had examined the plaintiff on his behalf.

At the close of the court's main charge, the attorney for the plaintiff asked the court to charge:

'May I respectfully ask you to charge on Milio against Railway Motor Trucking Company, in so far as the medical testimony is concerned, the records showing, on the concession of the defendant, that a doctor examined the plaintiff, that they have the right to take into consideration the failure of the defendant to call that doctor and explain his absence and in so doing give great weight and consideration to the testimony of Dr. Weston.'

The court granted the request and the defendant's attorney noted an exception. While the attorney for the plaintiff cited the Milio case, Milio v. Railway Motor Trucking Co., 257 App.Div. 640, 641, 642, 15 N.Y.S.2d 73, 74, 75, by name and purported to follow it in his request to charge, he did not state correctly the substance of the charge as approved in that case. The Milio case was an action for the death of an infant alleged to have been struck by a truck at a street crossing. The defendants rested at the close of the plaintiff's case and called no witnesses. In this situation, the court held that the plaintiff was 'entitled to an instruction that the evidence might be taken most strongly against the defendants since they could have called the driver of the truck to explain the accident and had failed to do so'. The court also held 'The failure to call a witness within the control of a party may justify giving greater weight to the testimony already in the case'.

It will be noted that the plaintiff's attorney did not ask the court to charge the jury that it had the right to give greater weight to the testimony of Dr. Weston, the plaintiff's physician, than it might have given if there had been no showing of a failure on the part of the defendant to call the physician who had examined the plaintiff on his behalf, but he asked the court to charge that because of the failure of the defendant to call his physician or to explain his absence, the jury had the right to give great weight and consideration to the testimony of Dr. Weston. The substitution by the plaintiff's attorney in the request to charge of the positive form 'great' for the comparative degree 'greater' gave the charge a wholly different meaning. Theoretically, the instruction authorized the jury to give great weight to the testimony of Dr. Weston merely because of the defendant's failure to call his doctor even though it might have been inclined, in the absence of that instruction, to give little or no weight to his testimony.

It thus appears that the charge was erroneous but, under the circumstances of this case, the error was not a prejudicial one. Dr. Weston had testified concerning the injuries and their effect upon direct examination in a clear and convincing manner. There was no cross-examination whatever with regard to the substance of his testimony. He was merely asked on cross-examination whether by means of his treatment he had obtained a good result and he said that he had and he was asked whether the dislocation of the hip he had described was a partial dislocation and he said that it was. The doctor's testimony was not discredited in any way nor was it 'in its nature, surprising or suspicious' (Hull v. Littauer, 162 N.Y. 569, 572, 57 N.E. 102, 103). There was no other medical proof in the case. In this situation, the objection to the form of the charge was wholly academic, since the jury would necessarily have had to give great weight to the testimony of Dr. Weston on the issue of damages, even if nothing had been said about the subject in the charge (cf. Hull v. Littauer, supra; Piwowarski v. Cornwell, 273 N.Y. 226, 7 N.E.2d 111). There was no other evidence on the subject to which it could give consideration. Under these circumstances, the instruction that the jury had the right (not that it was its duty) to give great weight to the testimony of Dr. Weston could hardly be termed prejudicial.

Since the plaintiff's attorney purported to follow the Milio case, we have considered the correctness of the charge against the standard of the charge approved in that case. However, we do not wish to be understood as approving all that was said in the Milio case or as holding that a charge which went beyond the Milio rule would not be proper. On the contrary, we believe that the charge as requested by the plaintiff in this case, except for the error in using the word 'great' instead of 'greater', was less favorable to the plaintiff than that to which the plaintiff was entitled. The plaintiff was entitled to a charge that the jury had the right to take into account the unexplained failure of the defendant to call his doctor and had the right to infer that his testimony would not have contradicted or qualified that of the plaintiff's doctor, if he had been called, and that, in that sense, his testimony would not have been favorable to the defendant. A charge in this form would have been in accord with the principles laid down in the texts and encyclopedias on the subject (2 Wigmore on Evidence, 3d Ed., § 285; 2 Chamberlayne, The Modern Law of Evidence, § 1075; Curtis, New York Law of Evidence, § 212; 20 Am.Jur., Evidence, § 187; 31 C.J.S. Evidence § 156). This form of charge has been approved in a long line of New York cases (Group v. Szenher, 260 App.Div. 308, 20 N.Y.S.2d 803, affirmed 284 N.Y. 741, 31 N.E.2d 508; Galbraith v. Busch, 267 N.Y. 230, 233, 196 N.E. 36, 38; Cushman v. DeMallie, 46 App.Div. 379, 61 N.Y.S. 878; Hicks v. Nassau Electric R.R. Co., 47 App.Div. 479, 62 N.Y.S. 597; Sugarman v. Brengel, 68 App.Div. 377, 74 N.Y.S. 167; Kirkpatrick v. Allemannia Fire Ins. Co., 102 App.Div. 327, 92 N.Y.S. 466, affirmed 184 N.Y. 546, 76 N.E. 1098).

But, in the Milio case, the court held that it was error to charge that 'if a party has within his control a witness and that party fails to call that witness, the jury may infer, although they are not bound to do so, that the testimony of that witness would have been unfavorable to the party failing to call him'. The court condemned that charge upon the ground that 'the jury have no right to indulge in any speculation with respect to what the witness, if called, would have testified to' (quoted from Perlman v. Shanck, 192 App.Div. 179, 183, 182 N.Y.S. 767). The court in the Milio case also said that 'The failure to call a witness within the control of a party * * * never authorizes a jury to speculate as to what the uncalled witness would testify to' (257 App.Div. at pages 641, 642, 15 N.Y.S.2d at pages 74, 75) and that it may not be inferred 'that the nonexistent testimony would have been unfavorable to defendants' (257 App.Div. at page 642, 15 N.Y.S.2d at page 75). It does not seem to us that authorizing the jury, in appropriate circumstances to draw an inference that the testimony of the witness would have been unfavorable, permits it to engage in unwarranted speculation. The inference is rather a logical, rational inference based upon the party's conduct in failing to call a witness within his control, who presumably would have been called to contradict the testimony of the adverse party's witnesses if he could truthfully have done so. The natural inference is that the witness was not called because he could not truthfully have contradicted the evidence offered by the other party. This inference may not properly be condemned as mere speculation. 'The nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the perty's cause' (2 Wigmore on Evidence, 3d Ed., § 285, [4 A.D.2d 26] p. 162). 'The inference (supposing the failure of evidence not to be explained away) is of course that the tenor of the specific unproduced evidence would be...