Industrial Mutual Indemnity Co. v. Perkins , 81 Ark. 87 ( 1906 )

Wood, J.,

(after stating the facts.) The court did not err in refusing a peremptory instruction for appellant. It was a question for the jury, under the evidence, as to whether or not the premium had been paid. The court correctly 'instructed the jury on that question. But the court erred in permitting counsel for the appellee in his argument “to call attention to the fact that the defendant (appellant) had not produced Nicholson and to insist that its failure to produce him would warrant the jury, under the circumstances, in drawing an unfavorable inference against the defendant (appellant) that the premium had been paid, as Nicholson was perhaps the only living person who knew certainly the facts about the payment of the premium,” and erred in refusing to instruct that no presumption unfavorable to appellant could be indulged on account of the absence of Nicholson. The uncontradicted proof showed that Nicholson was not in the employ of appellant at the time of the trial, and that appellant knew nothing of his whereabouts. The witness under such circumstances is as accessible to one party as the other. Therefore no unfavorable presumption can be indulged against either for a failure to produce the witness. Reynolds v. Ry. Co., 85 S. W. 323; See, also, Daggett v. Champlain Mfg. Co., 47 Atl. Rep. 1081; Scovill v. Baldwin, 27 Conn. 316; Diel v. Mo. Pac. Ry. Co., 37 Mo. App. 454.

Reversed and remanded for a new trial.