observing that a defendant need not testify and may avail himself of the plaintiff’s failure to carry the burden of proof and that the missing witness rule “applies . . . only ‘when the plaintiff’s proof and the legal deduction therefrom make a prima facie case against the defendant’” (quoting Davis v. Newsome Auto Tire & Vulcanizing Co., 213 S.W. 914 , 915 (Tenn. 1919))
How later courts described this case
- observing that a defendant need not testify and may avail himself of the plaintiff’s failure to carry the burden of proof and that the missing witness rule “applies . . . only ‘when the plaintiff’s proof and the legal deduction therefrom make a prima facie case against the defendant’” (quoting Davis v. Newsome Auto Tire & Vulcanizing Co., 213 S.W. 914 , 915 (Tenn. 1919))
- holding that the missing evidence rule only applies “when the plaintiff’s proof and the legal deduction therefrom make a prima facie case against the defendant”
- “Even a barefoot boy knows that when his foot is infested by a . . . foreign object, it must be removed. Most assuredly this lies within the ken of a layman.”
- no expert testimony needed to show causation where hospital neglected to remove wire embedded from swollen and infected foot
Written by the judges who cited it.
The opinion
MEMORANDUM ON PETITION TO REHEAR
HENRY, Justice.
The Petition to Rehear is respectfully overruled.
All members of the Court adhere to their original positions.