Wieder v. Miller

Citations

• 52 Pa. Super. 198
• 1912 Pa. Super. LEXIS 155

Syllabus

<p>Evidence—Witness—Failure to call witness—Comment of court— Trial—Practice, C. P.</p> <p>1. The nonproduetion of pertinent evidence which, if it exists, is peculiarly within the control of the parties whose interest it would be to produce it, is of itself often a circumstance of greater or less weight, which a jury may take into consideration, and it is not reversible error for the trial judge to call their attention to it, provided he does it fairly, and without giving binding instructions as to the effect of the omission.</p> <p>2. In an action for goods sold and delivered where th^ testimony of one of the plaintiffs and that of the defendant is absolutely contradictory as to the terms of the oral contract, and the defendant testifies that a brother and partner of the plaintiff who testified, was present and heard the conversation between her and plaintiff, and it appears that the brother is not called as a witness, and does not testify in the case, the trial judge commits no error in commenting upon the neglect of the plaintiff to offer the testimony of his brother.</p>