The motorman was in court and available for either side. That the defendant chose not to have him restate the circumstances of the occurrence (having done so once as part of plaintiff's case) cannot be the basis for predicating an inference unfavorable to defendant's case. See, Haas v. Kasnot, 377 Pa. 440, 105 A.2d 74 (1954), and Raffaele v. Andrews, 197 Pa. Super. 368, 178 A.2d 847 (1962). Appellee argues that the examination of the witness was limited to only certain facts incident to the accident, and hence the failure of the appellant to recall him to testify concerning the additional circumstances incident to the occurrence gave rise to a prejudicial inference, citing Beers v. Muth, 395 Pa. 624, 151 A.2d 465 (1959).
See United States v. Cotter, supra, 60 F.2d at page 692; Century Indemnity Co. v. Arnold, 2 Cir., 1946, 153 F.2d 531, 534, certiorari denied 1946, 328 U.S. 854, 66 S.Ct. 1346, 90 L.Ed. 1626. It is clear that a potential witness is considered equally available where he is present in court, even though the employee of one of the parties. Erie R. Co. v. Kane, 6 Cir., 1902, 118 F. 223; Iowa Central R. Co. v. Hampton E.L. P. Co., 8 Cir., 1913, 204 F. 961; cf. Haas v. Kasnot, 1954, 377 Pa. 440, 105 A.2d 74. Wigmore uses this language at Volume II, p. 171:
These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are always open to explanation by circumstances which make some . . . hypothesis [other than fear] a more natural one. . . ." 2 Wigmore, Evidence ยง 285, at 162 (1940 ed.) (emphasis added). Two such circumstances which have long been recognized as negating the inference of the non-calling party's fear of adverse testimony are (1) availability of the non-testifying witness to the other party, Bentivoglio v. Ralston, 447 Pa. 24, 29, 288 A.2d 745 (1972); Haas v. Kasnot, 377 Pa. 440, 105 A.2d 74 (1954); Rice v. Hill, 315 Pa. 166, 172 A. 289 (1934), and (2) the likelihood that the testimony of the non-called witness would be "unimportant or cumulative or inferior to what is already utilized." 2 Wigmore, Evidence ยง 287, at 168 (1940 ed.); Commonwealth v. Tauza, 300 Pa. 375, 150 A. 649 (1930).
But this rule is inapplicable if such witness is equally available to both sides of the litigation. Haas v. Kasnot, 377 Pa. 440, 105 A.2d 74 (1954); see also Davidson v. Davidson, 191 Pa. Super. 305, 156 A.2d 549 (1959). In other words, the inference is permitted only where the uncalled witness is peculiarly within the reach and knowledge of only one of the parties.
Furthermore, we are of the opinion that this Exhibit A does not come within the purview of a "business record" defined in the recently adopted "Uniform Business Records as Evidence Act", supra, which was no doubt intended to liberalize and broaden the "shop book rule" and to enlarge the operation of the business records exception to the hearsay evidence rule. See, Haas v. Kasnot, 371 Pa. 580, 92 A.2d 171; Id., 377 Pa. 440, 105 A.2d 74. See, also, Franklin v. Skelly Oil Co., 10 Cir., 141 F.2d 568, 153 A.L.R. 163, and 30 Texas Law Review 112 at 113. Hence the exhibit was inadmissible in evidence under either of the theories upon which counsel are now attempting to justify its admission.
But this rule is inapplicable if such witness is equally available to both sides of the litigation. Haas v. Kasnot, 377 Pa. 440, 105 A.2d 74 (1954); See also Davidson v.Davidson, 191 Pa. Super. 305, 156 A.2d 549 (1959). In other words, the inference is permitted only where the uncalled witness is peculiarly within the reach and knowledge of only one of the parties.
The variations between the bill of particulars and the testimony are insignificant and do not warrant a rejection of the plaintiff's testimony on these points. The defendant testified she knew Dickerson, and that he was in her home a number of times. If she did not know his address prior to the time of the first hearing on February 19, she at least knew it from then until the time of the last hearing on April 23. Whatever inference might be drawn from the failure of the plaintiff to call this witness would be of little value to the defendant as the general rule is that where a witness is equally available to both parties, no unfavorable inference can be asserted by either against the other for failure to call him. Haas v. Kasnot, 377 Pa. 440, 443, 105 A.2d 74 (1954); Moseley v. Reading Co., 295 Pa. 342, 349, 145 A. 293 (1929); Sorby v. Three Rivers Motors, 178 Pa. Super. 187, 193, 114 A.2d 347 (1955). Wigmore on Evidence, 3rd Edition, Vol. 2, ยง 288, page 169.
The statements themselves remain hearsay, and are not competent proof of the matters asserted in them. See Johnson v. Peoples Cab Co., 386 Pa. 513, 126 A.2d 720 (1956); Haas v. Kasnot, 377 Pa. 440, 105 A.2d 74 (1954); see also University of Pittsburgh v. Unemployment Compensation Board of Review, 50 Pa. Commw. 505, 413 A.2d 51 (1980). The investigation reports are competent only to prove that the complaints were made and that such statements were given by the public.
"The ordinary rule, therefore, [is] applicable, namely, that where a witness is equally available to both parties, no unfavorable inference can be asserted by either against the other for failure to call him. . . ." Haas v. Kasnot, 377 Pa. 440, 443, 105 A.2d 74, 76 (1954). See Redevelopment Authority of the City of Philadelphia v. Cohen, 31 Pa. Commw. 173, 179-180, 375 A.2d 881, 885 (1977).
But this rule is inapplicable if such witness is equally available to both sides of the litigation. Haas v. Kasnot, 377 Pa. 440, 105 A.2d 74 (1954); see also Davidson v. Davidson, 191 Pa. Super. 305, 156 A.2d 549 (1959). In other words, the inference is permitted only where the uncalled witness is peculiarly within the reach and knowledge of only one of the parties.