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BEERS v. MUTH. (05/28/59)

May 28, 1959

BEERS, APPELLANT,
v.
MUTH.



Appeal, No. 134, Jan. T., 1959, from judgment of Court of Common Pleas No. 3 of Philadelphia County, March T., 1956, No. 8443, in case of Margaret Scott Beers, administratrix of the estate of Thomas E. Beers, deceased v. Joseph Muth et al. Judgment reversed.

COUNSEL

William J. Woolston, for appellant.

Bernard P. Carey, Jr., for appellee.

Before Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Musmanno

[ 395 Pa. Page 625]

OPINION BY MR. JUSTICE MUSMANNO

Thomas E. Beers was killed as the result of a collision between two automobiles, one driven by Joseph Muth and the other by Sylvester Bennett.The administratrix of Beers' estate filed an action in trespass against Joseph Muth who brought in Sylvester Bennett as an additional defendant. The jury returned a verdict in the amount of $20,649.40 against the additional defendant, Bennett, but exonerated Muth. The plaintiff did call them as on cross-examination but questioned them very briefly. Since the plaintiff does not complain of the verdict against Bennett, no purpose will be served in discussing that phase of the case.

Plaintiff's counsel asked Muth only several revelatory questions: "Q. Are you the Mr. Muth who was driving a car that came into contact with Mr. Bennett's

[ 395 Pa. Page 626]

    car on Castor Avenue that afternoon? A. Yes. ... Q. Do you feel that your experience makes you competent to gauge comparative speeds of automobiles? A. I have some knowledge. Q. Mr. Muth, just before the impact do you know how many miles per hour your vehicle was traveling? A. Approximately 18 miles an hour."

Before the court's charge to the jury, the plaintiff asked for an affirmance of the following point: "The jury may infer from each of the two defendants' failure to testify and take the stand on his own behalf, that the testimony of each defendant would have been unfavorable to each defendant." The judge refused to affirm the point and the plaintiff advances that refusal as reason for new trial.Law is the distillation of common sense as drawn from the experience of mankind. And recorded experience through the centuries reveals that unless there is some obvious reason to establish the contrary, the person who fails to offer an explanation, when he is charged with misconduct, runs the risk of having the world believe that he has no satisfactory explanation to produce. Of course, we know that many a blameless person is accused of misbehavior of one character or another, but it still remains true that unless there exists a palpable reason for sealing one's lips, the world expects speech when the finger is lifted to accuse. We are not here considering the constitutional provision that no person is required to reply to any question which might subject him to criminal prosecution.

The issue before us in this case involves only the question as to whether a jury may be allowed to draw an adverse inference from the failure of a person charged with negligence to take the stand to give his version of the controversy which ...


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