Feese v. Anderson
648 S.W.2d 638, 1983 Mo. App. LEXIS 3142 (1983)
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Rule of Law:
The failure of a party to call their spouse as a witness, when there is a fair inference that the spouse has knowledge of relevant, contested facts, gives rise to an adverse inference, and the opposing party's counsel is entitled to comment on that failure in closing arguments. A court's refusal to permit such a comment constitutes reversible error.
Facts:
- Plaintiff sustained personal injuries in an alleged collision between his motorcycle and a van operated by Defendant at approximately 9:15 a.m.
- Due to head injuries, Plaintiff could not recall the events of that morning.
- Defendant, who had driven alone from her home to work, denied that a collision occurred.
- The van Defendant drove had a significant crease on its right rear hubcap, which she testified she first noticed after parking at work and had not seen before.
- Defendant and her husband were the primary drivers of the van.
- Defendant's husband had previously explained to a photographer how other, unrelated damage to the van had occurred but offered no explanation for the hubcap damage.
- Defendant testified that her husband had not mentioned the hubcap damage to her before the morning of the incident.
Procedural Posture:
- Plaintiff sued Defendant in a trial court, seeking damages for personal injuries from an alleged vehicular collision caused by Defendant's negligence.
- The case was tried before a jury.
- During closing arguments, the trial judge sustained Defendant's objection and prohibited Plaintiff's attorney from commenting on Defendant's failure to call her husband as a witness.
- The jury returned a verdict in favor of Defendant.
- The trial court entered a judgment in favor of Defendant based on the jury's verdict.
- Plaintiff, as the appellant, appealed the judgment to the Missouri Court of Appeals, Southern District.
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Issue:
Does a trial court commit reversible error by refusing to allow a party's attorney to comment in closing argument on the opposing party's failure to call their spouse as a witness, when there is a fair inference that the spouse has knowledge of relevant, contested facts?
Opinions:
Majority - Prewitt, Judge
Yes. A trial court commits reversible error by refusing to allow a party's attorney to comment on the opposing party's failure to call their spouse as a witness when the spouse likely possesses knowledge of relevant facts. The failure of a party to call a witness who is not 'equally available' to the opposing side and appears to have knowledge of relevant circumstances gives rise to a legitimate inference that the witness's testimony would have been unfavorable. The concept of 'equally available' is a legal term of art; it depends not on physical availability but on the relationship between the party and the witness that would naturally cause the witness to favor that party. A spousal relationship makes a witness not 'equally available' as a matter of law. Here, Defendant conceded her husband was not equally available. The central question was whether he had knowledge of relevant facts. Given that the hubcap damage was noticeable and the husband was a regular driver of the van who knew about other damage, it is a 'fair inference' that he would have known if the hubcap damage existed before the morning of the incident. Therefore, the comments by Plaintiff's attorney should have been allowed.
Analysis:
This decision reinforces the application of the 'adverse inference' or 'missing witness' rule, specifically solidifying that a spouse is legally considered not 'equally available' to the opposing party. The significance of the case lies in its clarification that direct proof of a witness's knowledge is not required to invoke the rule; a 'fair inference' based on circumstantial evidence is sufficient. This holding provides trial counsel with a clear basis to comment on an opponent's failure to call a spouse to testify on a contested factual issue, putting pressure on parties to present testimony from closely related witnesses or face a powerful negative inference at closing argument.
