Cincinnati Traction Co. v. Reis , 1922 Ohio App. LEXIS 145 ( 1922 )

By the Court.

In October, 1920, Stanley Reis filed an action against tbe Cincinnati Traction Company to recover damages for tbe negligence of tbe Traction Company in causing a collision between one of tbe cars of that company and his automobile.

Tbe question of negligence and tbe amount recovered is not in dispute. Tbe question for consideration in this case is whether or not Stanley Reis is the real party in interest, and it is fairly inferable from the record that Reis owned the automobile and carried insurance on it.

When Reis was interrogated, on cross-examination, as to what he did prior to and at the time of bringing this action, he answered:

“I did sign a paper regarding the bringing of a suit against the Traction Company, however, I don’t know the technicalities of the law, and don’t know whether it was a claim or anything else, or whether I had transferred my rights over to the Insurance Company.”

Another answer was:

“I repeat, I signed a paper that I understood was bringing suit against the Traction Company through me individually.”

We do not pass on the question as to whether or not this evidence was properly admitted. Taking it for what it is worth, it does not amount in law to an assignment of any claim he had against the Traction Company. The relation between the Insurance Company and Reis does not appear. He was honestly endeavoring by these answers to disclose all he knew about the paper that he signed.

The special charge and the interrogatories submitted were based on this evidence, and were properly excluded.

The failure of Reis to testify any more fully than he did did not raise an inference that the evidence would be detrimental to him. As stated in Wigmore on Evidence, Section '285:

“These inferences, to be sure, cannot fairly be made except upon certain conditions: and thev are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party’s fear of exposure.”

It has also been held, in D’Addio v. Hinckley Rendering Co., 213 Mass., 465, that no presumption or inference from the non-production of evidence is potent enough to supply independent evidence of a fact which is wholly unproved by other evidence.

If Reis had a claim against the Traction Company for negligence, he had a right to prosecute it, unless by some act of his he had assigned that right. In the absence of evidence, he will be presumed to be the owner of the claim until the contrary is shown.

Finding no prejudicial error in the record, the judgment is affirmed.

Judgment affirmed.

Hamilton, P. J., Cushing and Buchwalter, JJ., concur.