Opinion
No. 68-567
Decided December 3, 1969.
Court procedure — Evidence — Inferior or cumulative — Not evidence litigant would naturally produce — Material witness not called by litigant — Inference drawn therefrom — Charge to jury thereon erroneous, when.
1. A special instruction prior to argument, stating that when it appears a litigant knows of the existence of a material witness, and such witness is within the control of the litigant whose interest would naturally be to produce him, and without satisfactory explanation he fails to do so, the jury may draw an inference that the testimony would not be favorable to him, is error where the jury is not also instructed regarding the facts to be considered in determining what evidence a litigant would naturally produce at trial.
2. Evidence which is inferior or cumulative to evidence previously introduced is not evidence that a litigant would naturally produce.
APPEAL from the Court of Appeals for Morrow County.
Plaintiffs, husband and wife, in separate actions, sued defendants, mother and son, to recover for personal injuries sustained by the wife in an automobile collision and for expenses incurred by the husband as a consequence of his wife's injuries. Plaintiffs' motions for directed verdicts on the issue of liability were sustained and the sole issue before the jury was damages.
Following the accident on June 14, 1964, plaintiff, Carolyn Silveous, was taken to the Morrow County Hospital, where she was treated by Dr. Deffinger. He treated her again on June 15, 1964, and twice at his office as an out patient, the last visit being on July 1, 1964. At the hospital, Dr. Deffinger sutured her knee and chin. At his office, Dr. Deffinger removed the sutures. A summary sheet of certain Morrow County Hospital records was entered into evidence by stipulation. The summary sheet, signed by Dr. Deffinger, lists under the category "final diagnosis" a sprain of neck, five-inch laceration of right knee and one-inch laceration of chin.
Mrs. Silveous first saw Dr. Roberts, an orthopedic specialist, in early October 1964, and he treated her thereafter for neck and back discomfort. At trial, Dr. Deffinger was not called as a witness. Dr. Roberts testified, by deposition, concerning Mrs. Silveous' neck and back injuries. Over plaintiff's objection, prior to argument, the court charged the jury as follows:
"Ladies and gentlemen of the jury, when it appears a litigant knows of the existence of a material witness, and such witness is within the control of the litigant whose interest would naturally be to produce him, and without satisfactory explanation he fails to do so, the jury may draw an inference that the testimony would not have been favorable to him."
The jury returned verdicts of $2,000 for plaintiff Carolyn Silveous and $1,000 for her husband. After final judgments were entered upon the verdicts, plaintiffs appealed to the Court of Appeals, where the cases were consolidated for purposes of appeal. The judgments were reversed.
The causes are before this court pursuant to the allowance of a motion to certify the record.
Messrs. Tyack Scott and Mr. George E. Tyack, for appellees.
Messrs. Kennedy, Kennedy Purdy and Mr. Edward R. Wead, for appellants.
Defendants claim that the special charge given by the trial court was proper and that the Court of Appeals erred. We find the charge given under these circumstances is prejudicial error.
Defendants direct the court's attention to authorities to the effect that an adverse inference may arise where a party fails, without satisfactory explanation, to call a witness where the existence of the witness is known to and is in the control of the litigant whose interest would naturally be served by his production. Llewellyn v. Cincinnati Street Ry. Co., 66 Ohio App. 107; Hubbard v. Cleveland, Columbus Cincinnati Highway, 81 Ohio App. 445.
This category of special instruction has its origin in the theory that the failure to produce evidence which a fearless claimant would naturally produce permits the inference that the tenor of the evidence would be unfavorable to such claimant. See Wigmore on Evidence (3 Ed.), Sections 285-286.
Neither the controverted instruction given in the case at bar, nor any part of the court's instructions, advised the jury regarding guidelines to be observed in determining the application of the word "naturally" as used in the instruction. Ordinarily, it could not be said that such a claimant would "naturally" call a witness whose testimony would be merely cumulative or inferior to that offered by other witnesses. If there is adequate relevant evidence on a particular issue, any additional evidence on that issue complained of as being absent is only cumulative, and its character as plaintiff's "natural" evidence is palled. To allow an unfavorable inference to be drawn from the nonproductivity of such evidence would serve to emasculate the historical basis for allowing the instruction.
Counsel, in argument and in their briefs, have focused on Dr. Deffinger as the object of the instruction because he was not produced at trial. In view of the introduction of evidence from the summary sheet of the hospital records that Dr. Deffinger diagnosed plaintiff's condition as a sprain of the neck and lacerations, it is unfair to allow the jury, by instruction, an opportunity to infer that plaintiff would naturally call the doctor, and to also infer that his testimony would have been unfavorable to his patient. There is nothing in the record from which the court or jury could have found that Dr. Deffinger's testimony would not be inferior, cumulative or evidence which plaintiff would naturally produce. See Diffenbacher v. Lake Shore Coach Co., 51 Ohio Law Abs. 481.
The history of litigation involving medical expert witnesses has evolved a number of empirical reasons, in addition to those stated above, for not allowing a jury to be instructed to draw unfavorable inferences from the failure to produce an attending physician. In Merrill v. St. Paul City Ry. Co., 170 Minn. 332, 336, 212 N.W. 533, it was stated:
"* * * Many doctors are called to attend injured persons in the first instance ex necessitate, and with no opportunity for choice. The relation of physician and patient is delicate. Embarrassment sometimes follows a change of doctors. The doctor first called may not have the same opinion as to diagnosis or treatment as some other doctor. The patient makes his own choice as to whose opinion or judgment he will follow. Because one physician commands large compensation for expert testimony a patient may find it necessary to get along with one whose charges are more moderate. It is also well known that some doctors abhor the courtroom and the witness stand. A doctor is not in the control of the patient who is a litigant. Any litigant should have the right to choose his experts. He has to pay them. Because doctors disagree should he be required to furnish expert testimony of each or be subjected to an unfavorable presumption in the eyes of the jury? If the doctor is to be forced upon the plaintiff as to the mere facts, why not every eyewitness to the accident? True, the privileged character of the witness may prevent the other side calling him. But they will not anyway if he maintains that silence which the proprieties of his profession dictate. Nor would the ordinary doctor desire to become a witness against his patient. In this age when the family doctor with his helpful personal contact is disappearing and many doctors are members of clinics, it is not always possible to have the services of the particular doctor you may desire. The organization assigns the patient to an expert of its own choice and doubtless feels that it is giving service. And why not? If the patient has the attention of a number of doctors of the same clinic, under the rule for which appellant contends each must be called or this instruction be invoked. * * *"
In view of what we have stated hereinabove, we believe that the special instruction involved unfairly serves judicially to encroach upon the inference drawing aspect of the fact-finding process.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
MATTHIAS, O'NEILL, SCHNEIDER and HERBERT, JJ., concur.
TAFT, C.J., dissents from paragraph one of the syllabus and from the judgment.
CORRIGAN, J., dissents.