Secondino v. New Haven Gas Co.
| Court | Supreme Court of Connecticut |
| Citation | 165 A.2d 598,147 Conn. 672 |
| Decision Date | 15 November 1960 |
| Parties | Janet SECONDINO et al. v. NEW HAVEN GAS COMPANY et al. Supreme Court of Errors of Connecticut |
Page 598
v.
NEW HAVEN GAS COMPANY et al.
Page 599
Donald F. Keefe, New Haven, with whom was Peter C. Dorsey, New London, for appellants (defendants).
[147 Conn. 673] 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 [147 Conn. 672] BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.
[147 Conn. 673] 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
Page 600
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 [147 Conn. 674] 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...
To continue reading
Request your trial
-
State v. Moynahan
...to produce and his absence would be subject to an unfavorable inference under the rule as set forth in Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598; Queen v. Gagliola, 162 Conn. 164, 168, 292 A.2d 890; see also United States v. Gernie, 252 F.2d 664 (2d Cir.). The state r......
-
State v. Cobb, (SC 14384)
...a witness who is within his power to produce and who would naturally have been produced by him ... "Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 The challenged missing witness instruction in Ross was particularly important to the state in order to obtain the defendant's ......
-
State v. Reid
...in giving a missing witness instruction. See State v. Carrione, 188 Conn. 681, 453 A.2d 1137 (1982); Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). The facts relevant to this issue are as follows: Prior to the commencement of trial the defendant requested permission for......
-
State v. Ruiz-Pacheco, AC 39605
...145 L.Ed.2d 1099 (2000). We disagree."In Malave, our Supreme Court abandoned the rule enunciated in Secondino v. New Haven Gas Co ., 147 Conn. 672, 165 A.2d 598 (1960), which had permitted trial courts to instruct the jury that [t]he failure of a party to produce a witness who is within his......