Gaulkin, Labrecque and Brown. The opinion of the court was delivered by Gaulkin, S.j.a.d.
Plaintiffs' true name is Wild. The pleadings shall be considered corrected accordingly.
Plaintiffs sued defendant dentist for malpractice. The jury returned a verdict in favor of defendant and plaintiffs appeal.
Plaintiffs contend that the trial judge erred when he charged the jury as follows:
"Now there was some dispute among counsel about the fact the statement was made that certain doctors whose names appeared in the case had not been called as witnesses. When a witness normally is not produced by a party, when it would be natural for such a person to produce the witness, then there might be an inference that if called he would have testified unfavorably to the plaintiff. However, it must be within the power of the party to produce him. He must be within the jurisdiction and it must be noted, also, both sides, wherever a doctor was in the jurisdiction, could have subpoenaed the doctor to come here."
Plaintiffs contend this was prejudicially erroneous because (1) the trial court did not follow the practice recommended in State v. Clawans, 38 N.J. 162 (1962); (2) the evidence did not warrant such a broadside charge on the nonappearance of all of the "certain doctors whose names appeared in the case," and (3) even if a charge on the nonappearance of witnesses was warranted, this charge was incomplete and improper in form.
Instructions to a jury may be said to fall into three broad categories: (1) those which the judge must give even without request from counsel, (2) those which he must give when requested by counsel, and (3) those which he need not
give even when requested by counsel. Defendant contends that the charge in question falls into class (2), citing Clawans, supra.
In Clawans the court stressed the "peculiar facts" before it. Therefore we doubt that Clawans always compels the giving of such a charge when a possible witness does not appear, even upon request and even if the rules laid down in Clawans and hereafter discussed are complied with. Be that as it may, Clawans did not hold that the charge was to be given merely because a person who apparently knew something about some facet of the case did not appear and testify. We think Clawans made it abundantly clear that (1) the charge is not to be given unless the judge is first satisfied that giving it is clearly justified as to a particular witness or a particular class of witnesses, and (2) the charge, if given, must identify the witness or class of witnesses in question and the issues upon which their testimony might have been helpful. See Clawans, at p. 173, and Justice Francis's dissenting opinion therein, at pp. 175-176.
Clawans restated the conditions precedent for such a charge. It must appear that it was within the power of the party to produce the witness. The inference "is based not on the bare fact that a particular person is not produced as a witness * * * but on his non-production when it would be natural for the party to produce the witness." O'Neill v. Bilotta, 18 N.J. Super. 82, 86 (App. Div.), affirmed o.b. 10 N.J. 308 (1952). It must appear reasonably probable that the witness "could testify to specifically identifiable facts." Meistrich v. Casino Arena Attractions, Inc., 54 N.J. Super. 25, 31 (App. Div.), modified 31 N.J. 44 (1959), and, even then, that his evidence would not be merely cumulative, but "superior to that already utilized in respect to the fact to be proved." Clawans, 38 N.J., at p. 171. The inference is not proper if the witness is available to both parties or "by his position would be likely to be so prejudiced against the party that the latter could not be expected to obtain the unbiased truth from him * * *." Ibid.
A judge may not give a charge relating to the non-production of a witness unless he is satisfied that a sufficient foundation for drawing such an inference has been laid in accordance with the above-mentioned rules. Admittedly "application of the above principles is particularly perplexing and difficult * * *." Clawans, at p. 172. On the other hand, giving such a charge when it is not warranted, or broader than is warranted, may be prejudicial error. It is one thing for counsel in his summation to point to the absence of particular witnesses; it is quite another when the court puts the weight of its authority behind such a summation by telling the jury it may draw an adverse inference from their absence. As the United States Supreme Court said in Griffin v. State of California, 380 U.S. 609, 614, 85 S. Ct. ...