EVIDENCE-PROBATIVE VALUE OF INFERENCES FROM FAILURE TO CALL A WITNESS

lnsured sued to recover sickness benefits under an insurance policy. The defense was that the insured was not in good health when the policy was issued. The only evidence introduced by the defendant insurance company was plaintiff's refusal to consent to taking the deposition of an examining hospital physician. Defendant's request for a directed verdict on the issue of good health was refused.

After being instructed that from the refusal to permit taking of the deposition they might "presume that such evidence . . . would operate against plaintiff and be against his interest in this suit," the jury returned a verdict for plaintiff. Held, the instruction was not prejudicial to the defendant since he could not use the inference as a substitute for proof of a fact. National Life & Accident Ins. Co. v. Eddings, (Tenn.

1949) 221 S.W. (2d) 695.