Feese v. Anderson
1983 Mo. App. LEXIS 3142, 648 S.W.2d 638 (1983)
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Rule of Law:
A party's failure to call their spouse as a witness, when that spouse likely has knowledge of relevant facts in issue, is not considered 'equally available' to the opposing party, and entitles opposing counsel to comment on this failure in closing arguments.
Facts:
- Plaintiff was injured when his motorcycle was allegedly struck by a van driven by the defendant.
- Plaintiff suffered head injuries and could not recall the morning of the incident.
- Defendant denied that a collision occurred.
- The van, which was also driven by defendant's husband, had a noticeable crease on its right rear hubcap that was approximately 10-11 inches long.
- Defendant testified that she first noticed the hubcap damage after arriving at work on the morning of the incident and did not know how it occurred.
- Defendant claimed all other damage to the van was pre-existing.
- Defendant's husband explained to a photographer how the pre-existing damage occurred but offered no explanation for the hubcap damage.
Procedural Posture:
- Plaintiff sued Defendant in trial court, alleging she negligently caused a vehicular collision.
- The case was tried before a jury.
- During closing argument, the trial court sustained the defendant's objection and prohibited plaintiff's attorney from commenting on the defendant's failure to call her husband to testify.
- The jury returned a verdict in favor of the Defendant, and the court entered a judgment in her favor.
- Plaintiff (appellant) appealed the judgment to the Missouri Court of Appeals, Southern District.
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Issue:
Did the trial court commit reversible error by prohibiting the plaintiff's attorney from commenting in closing argument on the defendant's failure to call her husband as a witness, where the husband likely had knowledge of a key fact in dispute?
Opinions:
Majority - Prewitt, Judge
Yes, the trial court committed reversible error. The failure of a party to call a witness who is not 'equally available' and who possesses knowledge of relevant circumstances gives rise to an inference that the witness's testimony would have been unfavorable. A spouse is not considered 'equally available' due to the natural expectation of favoritism, and it is reversible error to prevent opposing counsel from commenting on the failure to call a spouse who has knowledge of facts in issue. Here, the central dispute was whether the hubcap damage occurred during the alleged collision. As the defendant's husband also drove the van, it is a fair inference he would have known if the noticeable damage existed before his wife left for work that morning. Therefore, he had knowledge of a contested fact, was not an equally available witness, and plaintiff’s counsel should have been permitted to comment on his absence.
Analysis:
This decision reinforces the established 'missing witness' or 'adverse inference' rule, specifically solidifying that a spousal relationship automatically renders a witness not 'equally available' for the purposes of the rule. The case clarifies that a party seeking to draw the inference does not need to prove conclusively that the uncalled witness has knowledge, but only that it is a 'fair inference' they do. This provides attorneys with a powerful tool in closing arguments to create doubt about an opponent's case when a closely related and knowledgeable witness is not produced, thereby influencing the jury's perception of the evidence.
