Section 13.12 Failure to Produce Witnesses—Adverse Inference

• Library: Civil Trial Practice 2015 Supp

J. (§13.12) Failure to Produce Witnesses—Adverse Inference

A party’s failure to call witnesses more within that party’s control—that is, who are not equally available—and who have knowledge of facts and circumstances vitally affecting the issues in the case, raises a strong presumption that such testimony would have been unfavorable to the party who failed to offer it. Bean v. Riddle, 423 S.W.2d 709 (Mo. 1968); Moore v. St. Louis Pub. Serv. Co., 251 S.W.2d 38 (Mo. 1952); Feese v. Anderson, 648 S.W.2d 638 (Mo. App. S.D. 1983); Lipton Realty, Inc. v. St. Louis Hous. Auth., 705 S.W.2d 565 (Mo. App. E.D. 1986). See also Kampe v. Colom, 906 S.W.2d 796 (Mo. App. W.D. 1995); Anderson v. Wittmeyer, 895 S.W.2d 595 (Mo. App. W.D. 1995); Countryman v. Seymour R-II Sch. Dist., 823 S.W.2d 515 (Mo. App. S.D. 1992).

Of course, the obvious key to the issue is the meaning of the phrase “equally available.”...