Tort Law

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Witnesses-Missing.   

1992 Faison v. Hudson, 243 Va. 397, 417 S.E.2d 305.

Parties disputed whether there was another witness to accident. Missing witness rule requires that witness be available. Since this issue in dispute, trial court affirmed in denial of missing witness instruction.

1984 Harper v. B & W Bandag Center, 226 Va. 469, 311 S.E.2d 104.

Tire blowout case involving blowout of recapped tire. Defendant failed to call one of its inspectors who had some knowledge of recapping procedure. Plaintiff requested missing witness instruction. That instruction was properly refused because testimony of supposed missing witness would have been cumulative. In addition, instruction offered was defective in that it was written in general terms and does not identify missing witness from whose absence adverse inferences may be drawn. In this case there were other witnesses to whom the instruction might have applied but they likewise were not identified.

1975 Neeley v. Johnson, 215 Va. 565, 211 S.E.2d 100.

Unexplained failure of party to call available material witness gives rise to inference that testimony of such absent witness would be adverse. No presumption arises against defendant for failure to produce witness until plaintiff has made out prima facie case.

1973 Williams v. Vaughan, 214 Va. 307, 199 S.E.2d 515.

Unexplained failure to call material witness readily available may raise presumption that testimony would be adverse.

1973 Gumenick v. United States, 213 Va. 510, 193 S.E.2d 788.

Counsel are not required to summon parties to suit and calling defendant as witness when he was not present was incident of trial. Defendant’s absence could have been subject of comments from trial judge. Not error to overrule motion for mistrial on these issues.

1972 Faccina v. Richardson, 213 Va. 440, 192 S.E.2d 791.

Insurance coverage cannot be injected into case; not error to refuse instructions on presumption from failure of uninsured motorist to testify or produce evidence. To apply presumption would create undue advantage since insurance carriers do not have opportunity to explain absence of uninsured motorist.

1966 Oliphant v. Snyder, 206 Va. 932, 147 S.E.2d 122.

Defendant’s ten-year-old son who was in vehicle with defendant was not called as witness. Missing witness instruction was properly refused since there was no showing that boy’s testimony would have been any different from what police officer testified boy said.

1964 Barnette v. Dickens, 205 Va. 12, 135 S.E.2d 109.

Failure to call all attending doctors does not create any presumption that their testimony would be unfavorable.

1963 Barner v. Whitehead, 204 Va. 634, 133 S.E.2d 283.

Unexplained failure to produce witnesses possessing peculiar knowledge concerning facts essential to case, raises presumption that their testimony would have been adverse.

1963 Robbins v. Old Dominion River Co., 204 Va. 390, 131 S.E.2d 274.

Unexplained failure of party to produce material witness raises presumption that his testimony would have been adverse. There is no presumption against defendant for failure to call witnesses when plaintiff has not made out prima facie case and such presumption cannot be used to relieve plaintiff of his burden of proof.

1959 Norfolk & W. Ry. v. Sykes, 200 Va. 541, 106 S.E.2d 734.

Driver of plaintiff’s auto was not called as witness. Presumption is that his evidence would not have been helpful to plaintiff’s case.

1957 Hoier v. Noel, 199 Va. 151, 98 S.E.2d 673.

Brother of decedent saw accident but was not called by administrator as witness. Presumption arises that such testimony would have been unfavorable to plaintiff.

1949 Bland v. City of Richmond, 190 Va. 42, 55 S.E.2d 289.

Failure of party to call material witness who is available raises legal presumption that his testimony would not have been favorable to party failing to call him.

1948 McGehee v. Perkins, 188 Va. 116, 49 S.E.2d 304.

Failure of defendant to call material witness whom that defendant claims is not available, will allow other parties to present evidence of availability of witness.

1948 Vann v. Harden, 187 Va. 555, 47 S.E.2d 314.

Instruction on missing witness is not allowed where that witness’s testimony would be cumulative and/or equally available to other party.

1945 Piccolo v. Woodford, 184 Va. 432, 35 S.E.2d 393.

When party in possession of material facts fails to testify, presumption arises that if he had testified his testimony would not have supported his theory of case.

For more information on witnesses see the pages on Wikipedia.