Secondino v. New Haven Gas Co.

• Decision Date: 15 November 1960
• Citation: 165 A.2d 598,147 Conn. 672
• Court: Connecticut Supreme Court
• Parties: Janet SECONDINO et al. v. NEW HAVEN GAS COMPANY et al. Supreme Court of Errors of Connecticut

Page 598

165 A.2d 598

147 Conn. 672

Janet SECONDINO et al. v. NEW HAVEN GAS COMPANY et al.

Supreme Court of Errors of Connecticut.

Nov. 15, 1960.

Donald F. Keefe, New Haven, with whom was Peter C. Dorsey, New London, for appellants (defendants).

Nathan A. Resnik, New Haven, with whom were John J. Resnik, New Haven, and, on the brief, Cornelius T. Driscoll, Branford, for appellees (plaintiffs).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

BALDWIN, Chief Justice.

The defendants have assigned error in the charge concerning the inference to be drawn by the jury from the failure of the named plaintiff, hereinafter called the plaintiff, to produce an expert medical witness.

The plaintiff claimed to have proved the following facts: She was injured in an automobile accident proximately caused by the defendants' negligence. She suffered a brain concussion, a cervical strain and contusions on both of her arms. Dr. Michael Carpinella, a general practitioner, treated her for all her injuries and referred her to Dr. Franklin Robinson, a neurological specialist, for her complaints of headaches, dizziness and neck pain. She was still suffering from headaches and neck pain at the time of the trial.

The defendants claim to have proved that the plaintiff's injuries were of a minor nature, that she had had a history of periodic headaches going back many years, and that Dr. Robinson was the only doctor who examined her for head injuries. The plaintiff, before resting her case, sought a stipulation to the effect that Dr. Robinson, if produced, would corroborate Dr. Carpinella with respect to her complaints of headaches, dizziness and neck pain. The defendants refused so to stipulate. The plaintiff also asked and, with the defendants' consent, was granted permission by the court to call Dr. Robinson out of turn, during the defendants' case. The plaintiff then rested subject to the right to call Dr. Robinson. At the conclusion of the testimony offered by the defendants, which consumed approximately two hours, the plaintiff offered as a witness in rebuttal a deputy sheriff who testified that about two hours before he took the witness stand the plaintiff's counsel had given him a subpoena addressed to Dr. Robinson and that he had been unable to serve it upon the doctor. During the argument, counsel for both parties referred at some length to the inferences which should be drawn by the jury from the fact that Dr. Robinson had not been offered as a witness.

The parties filed no requests to charge. The court charged the jury that 'where a party fails to call * * * a witness who, if so called, could testify as to any material fact, and where it is within the sole or peculiar power of that party to call him,' the jury are entitled to infer that his testimony would have been unfavorable to the party failing to call him, and 'to consider that fact' in reaching their decision. The court instructed the jury further, in effect, that the inference could not be drawn unless they concluded that the person not called could have given material testimony and 'that it was within the sole or peculiar power of the party failing to call him to put him on the witness stand.' The court then told the jury that either party has the right to issue subpoenas and require the attendance of witnesses in the courtroom.

It is an ancient 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; Halpine v. Halpine, 138 Conn. 578, 580, 87 A.2d 146; 2 Wigmore, Evidence (3d Ed.) § 285. The rule applicable to the instant case, a civil action in which there was a failure to produce a particular witness, is stated in Ezzo v. Geremiah, supra, 107 Conn. 677, 142 A. 464: '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.' The party against whose cause an unfavorable inference is claimed may, of course, offer evidence to explain the failure to produce the witness. Id., 107 Conn. 678, 142 A. 464; Thomas v. Ganezer, 137 Conn. 415, 422, 78 A.2d 539; see Cote v. Palmer, 127 Conn. 321, 331, 16 A.2d 595. There are two requirements for the operation of the rule: The witness must be available, and he must be a witness whom the party would naturally produce. Broderick v. Shea, 143 Conn. 590, 593, 124 A.2d 229; Halpine v. Halpine, supra; Lemmon v. Paterson Construction Co., 137 Conn. 158, 163, 75 A.2d 385; Dawson v. Davis, 125 Conn. 330, 334, 5 A.2d 703. Availability of the witness is not the sole test. In the cases cited, the witness who was not called was available to both parties. In Ezzo v. Geremiah, supra, and in Lemmon v. Paterson Construction Co., supra, the witness was actually present in the courtroom. A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce. Turner v. Scanlon, 146 Conn. 149, 161, 148 A.2d 334; 2 Wigmore, op. cit. §§ 286-288; see Ezzo v. Geremiah, supra, 107 Conn. 676, 142 A. 464 (defendant's son, who was driving the defendant's automobile); Dawson v. Davis, supra, 125 Conn. 332, 5 A.2d 704 (plaintiff's nephew, who had charge of the land involved in the dispute); Lemmon v. Paterson Construction Co., supra (defendant's employee); Broderick v. Shea, supra (plaintiff's husband). Parenthetically, the...