[114 N.Y.S. 18] Alfred A. Wheat (Theodore H. Lord, on the brief), for appellant.
Henry M. Dater (George F. Elliott, on the brief), for respondent.
Argued before WOODWARD, JENKS, GAYNOR, RICH, and MILLER, JJ.
The action was for damages for the alleged negligence of the defendant in knocking the plaintiff down in the street with his business horse and wagon. It appeared in evidence that at the time of the accident there was a boy riding about in the wagon with the defendant's driver who was going from place to place on the defendant's business. He was not in the employ of the defendant, but a stranger to him, had no right to be in the wagon, and was probably a distraction to the driver there. The driver was called as a witness by the defendant but this boy was not called. He was present during the trial to the knowledge of both sides. In summing up the learned counsel for the plaintiff stated in substance that if the defendant wanted the truth he would have called this boy as a witness; that if the driver told the truth he could have corroborated him; that it was the defendant's duty to call him as a witness. The learned counsel for the defendant objected to this at the outset, and at intervals afterwards, but the court overruled the objections, and allowed counsel for the plaintiff to reiterate and discuss the matter in this tenor at length. This was error.
1. Failure of a party to produce evidence which would conclusively determine the fact in dispute may give rise to a conclusive inference, i. e., to a presumption of law, that the fact is not as he claims it to be or is as claimed by the other side; as where a party fails to produce a chattel or a writing which is in his possession and would, if produced, show the fact indisputably. For instance, in the case of Armory v. Delamirie, 1 Strange, 505, where the chimney sweeper's boy found a jewel and took it to a goldsmith for appraisal, who refused to give it back, in an action of trover against him the jury were instructed by the Chief Justice that for failure of the defendant to produce the jewel in court so that its quality could be seen, they should presume the strongest against him and make the value of a jewel of the first water the measure of damages; and in the case of Young v. Holmes, 1 Strange, 70, which was ejectment for a leasehold, and the terms of the lease were in dispute, the Chief Justice ruled that for failure of the defendant to produce the lease, which was in his possession, " he would intend it made against the defendant."
2. But in the case of failure to produce mere oral evidence, the rule necessarily falls short of this, for oral evidence is not indisputable and conclusive, but depends on " slippery memory" and honesty. The rule in respect of failure of a party to produce oral evidence is that such failure is a fact to be considered in determining how much weight, if any, should be given to the evidence which he has produced. Lord Mansfield expressed it orally from the bench, but only in outline, thus:
" It is certainly 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 to have contradicted." Blatch v. Archer, Cowp. 63.
[114 N.Y.S. 19] This is the condensed and imperfect version of the reporter. The limitations which it is subject to become obvious on examination of the subject.
3. The question is one of inference for the jury-or for the trial judge, if there be no jury; i.e., it is not an inference or presumption of law, but one of fact ( Sugarman v. Brengel, 68 A.D. 377, 74 N.Y.Supp. 167); and its degrees are infinite, from slight to very strong or irresistible. It does not grow out of any duty on the part of litigants in respect of calling witnesses or of testifying themselves. There is no such duty, although counsel for the plaintiff told the jury there was. For instance, in the case of Bleecker v. Johnston, 69 N.Y. 309, where the two defendants were partners, and were sued in a partnership matter, but only one of them testified, although it appeared that the other had equal knowledge of the fact in dispute, the trial judge charged the jury that:
" It is the duty of every party, in prosecuting their case before the jury, to produce every witness who can convey any light to the jury which will aid them in considering the evidence."
For this rigid and lofty conception the case was reversed. A passage of the opinion illustrates the true rule, viz.:
" It was not left to the jury to say whether, under the circumstances, the absence of the defendant was suspicious, so as to authorize an unfavorable inference, but they were told that it was the duty of the defendants to call him."
Since the other defendant did not corroborate the one who testified, it was for the jury to consider that fact, and if it inferred that he did not because he could not, to say from that what weight they should give to the latter's testimony, or whether they should believe it at all; and the same is the case in respect of a witness as of a party.
4. The rule of course has its limits. It only applies to witnesses who are " within the power of the party," as it is expressed, which means at hand and subject to a subpœ na, and whose testimony would not be trivial, or to be classed as merely cumulative, but important and necessary; and it is for the party to account for the absence of such witnesses by evidence in order to escape the unfavorable inference. It does not apply to all such witnesses, but only to those of whom it may be naturally inferred that they are of good will to the party, such as his business partners or associates, his employés, his physician, and the like; and of course such inference may be rebutted. Partners might be at enmity, etc. It does not apply to witnesses who appear to be, or may naturally be supposed to be, biased against him; nor to strangers, i. e., persons of whose disposition in respect of the parties or the cause nothing is known or can be inferred or presumed. A party is not obliged to take chances in calling such witnesses, or witnesses of whose character he knows nothing; for by calling a witness a party vouches to some extent for his character, as is the well-known rule. For instance, the failure of a railroad company to call passengers who were present when the occurrence happened, in an action against it for negligence, gives rise to no unfavorable inference or presumption against it. [114 N.Y.S. 20]Yula v. New York, etc., R. Co., 39 Misc. 59, 78 N.Y.Supp. 770.It is sometimes said by text-writers and in judicial opinions that in the case of absent witnesses who are equally available to both parties the rule does not apply. This, like very much else on this subject, is taken from inadvertent expressions in judicial opinions here and there. For instance, the biased witnesses of one party may be equally known and available to the other, but he certainly is not expected to call them, and his failure to do so cannot give rise to any inference against him, or relieve the other party of the inference against him for not calling them. It must be owned that there are in judicial opinions in some of our states inadvertent utterances on different points of the subject under discussion, which the text-writers probably do an ill service in helping to keep alive by indiscriminate citation. The whole subject is treated with ability and research in a recent unusual text-book (Moore on Facts, vol. 1, § 562, et seq.); and other text-books and cases in our own courts, in addition to those cited above, may be here cited for the foregoing, with the caution that some text-writers through citing isolated and not well-considered expressions in opinions, do not clearly ...