526 F.2d 961 | 5th Cir. | 1976
Joseph Labit was injured while working for Santa Fe Marine, Inc. on an offshore floating drilling vessel. In his Jones Act
At trial, Labit requested a form of the “missing witness” instruction.
The propriety of giving a “missing witness” instruction is necessarily a matter committed to the discretion of the trial judge. See Burgess v. United States, 142 U.S.App.D.C. 198, 440 F.2d 226, 234 (1970) (Fahy, J.). Refusal of the instruction in this case was a permissible exercise of that discretion.
Affirmed.
. 46 U.S.C. § 688.
. The jury also found against Labit on his pendent claim that the vessel was unseaworthy.
. The requested charge was:
If a party fails to call a person who possesses knowledge about the facts in question*963 and who is reasonably available to him and who is not equally available to the other party, then you may infer that the testimony of that witness is unfavorable to the party who could have called him and did not.
. United States v. Chapman, supra; McClanahan v. United States, 230 F.2d 919 (5th Cir.), cert. denied, 352 U.S. 824, 77 S.Ct. 33, 1 L.Ed.2d 47 (1956).
. Compare East-West Towing Co. v. National Marine Service, Inc., 417 F.2d 1274 (5th Cir. 1969) with Stewart v. United States, 135 U.S.App.D.C. 274, 418 F.2d 1110, 1114-15 (1969).
. We adopt the reasoning of Felice v. Long Island R.R. Co., 426 F.2d 192, 195 n. 1 (2d Cir.) (Friendly, J.), cert. denied, 400 U.S. 820, 91 S.Ct. 37, 27 L.Ed.2d 47 (1970):
Whatever might be the case in an action by a third party against the employer, we see no factual basis in this day and age for thinking that, in the absence of evidence of personal hostility, a subordinate employee would be more favorable to a corporate employer than to a fellow-worker.
If other circuits still hold to the position that the employee-employer relationship automatically makes the employee more available to the employer, see Illinois Central R.R. Co. v. Staples, 272 F.2d 829, 833-34 (8th Cir. 1959), we reject their position.
. See Burch v. Reading Co., 140 F.Supp. 136, 157 (E.D.Pa.1956), affirmed, 240 F.2d 574 (3d Cir. 1957). Of course, this factor is not determinative. See cases cited note 4 supra.
. See United Broadcasting Co. v. Armes, 506 F.2d 766, 770 (5th Cir.), cert. denied, 421 U.S. 965, 95 S.Ct. 1953, 44 L.Ed.2d 452 (1975).