
    Irving Brotherton, Respondent, v. Barber Asphalt Paving Company, Appellant.
    Second Department,
    March 8, 1907.
    Trial — failure to produce witness — right of opponent to comment thereon.
    When a physician who treated the plaintiff for injuries complained of and in j urics recei ved in a prior accident is not produced upon the trial as a witness, the opposing counsel may call attention to the fact and comment upon it with a view to having the jury infer that the physician was not called because his testimony would not have been favorable to the plaintiff.
    It is improper to rule that because the plaintiff was forced to trial the absence of the physician cannot be commented upon, especially where the plaintiff has sought to explain his absence and the jury has had full benefit of the explanation.
    Appeal by the defendant, the Barber Asphalt Paving Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 20tli day of March, 1906, upon the verdict of a jip-y, and also from an order entered in said clerk’s office ón the 15th day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      Eugene Lamb Bicharás, Jr. [Butherford B. Meyer and Frank Verner Johnson with him on the brief], for the appellant.
    
      Jacob S. Strahl, for the respondent.
   Woodward, J.:

We are of the opinion that there must be a "reversal in this case. It appears that at the trial the physician who treated the plaintiff for the injuries complained of, and who had treated him for injuries received in a prior accident, was not present as a witness and did not testify. . On the cross-examination of the plaintiff he undertook to explain away the absence of his physician, and after stating that he had lxad another accident from which he was under the doctor’s care-he continued: “I had no swelling of the leg as the result of ..that, Hiller was my doctor at that time. He is not here just at present. He is at Portage, I believe. I have not made any efforts to communicate with him about this case to-day. He has been here every day. , I expect to see him here to-day. I was here for awhile yesterday. This case was answered 1 Beady ’ for me. 1 vas not here present when it was answered. I knew it was marked‘Beady.’ I ■was talking with my doctor yesterday. I told him it would probably be reached by the last of this week. It was oh the bottom of the calendar yesterday.' That was yesterday I communicated with him. It was just at the noon hour, when you went out to lunch here. I have' not seen him since.” •

When counsel for the defendant summed up,, lie undertook to comment upon the failure of the- plaintiff to produce, his physician as a witness, and the folloiving colloquy took place between the court and counsel: “ M'r. Bichards.— I must be allowed! to refer to the absence of this doctor as a very proper thing. The Court.—-1 am. going to: hold, to the contrary. The case was forced on to trial under circumstances where, títere was evidently some misunderstanding. I enforced the rule of the court and compelled the plaintiff to go to trial, and I anl going to charge the jury that under th¿circumstances under which this ease "went to trial, that they must draw no inference one way or the other from the absence of the ' doctor.’-’ To-this remark counsel for the defendant excepted.

We think it is a welbestablished rule of practice that where a witness who bears the relation to a party such as'the doctor bore to the. plaintiff in this case and such witness vras not produced upon a trial, the opposing counsel may call attention to the fact and comment upon it with a view of having the jury infer the witness was . not called because his testimony would not have been favorable to the plaintiff’s case.- This seems the more proper in this particular .case because .the • plaintiff upon his cross-examination (heretofore quoted) had under oath sought to explain such absence and failure to testify, and. the jury had the full benefit of- that éxplanation.The statement of the. court.as- to what occurred before ;the jury "was impaneled and before-the case was on trial cannot be substituted for. evidence. - .

The judgment and order should be reversed and- a new .trial granted, costs to abide the event.

Jehks, Gaynor and Bich, JJ., concurred. ", " .

Judgment and order reversed and; new trial- granted,' costs to abide the. event.  