O.C.G.A. § 24-14-22 (2019)

Annotations

Law reviews. For comment on Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964), see 1 Ga. St. B. J. 550 (1965). For comment discussing the right to present evidence for the purposes of rebutting presumption, in light of Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230, 37 L. Ed. 2d 63 (1973), see 10 Ga. St. B.J. 484 (1974).

For article, “Spoliation of Evidence,” see 8 Ga. St. B.J. 12 (2003). For note, “Spoliating the Adverse Inference Instruction: The Impact of the 2015 Amendment to Federal Rule of Civil Procedure 37(E),” see 51 Ga. L. Rev. 917 (2017).

For note, “Georgia’s Approach to Proportionality and Sanctions for the Spoliation of Electronically Stored Information,” see 37 Ga. St. U.L. Rev. 603 (2021).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION ILLUSTRATIONS General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 5163, former Penal Code 1895, § 989, former Civil Code 1910, § 5749, former Penal Code 1910, § 1015, and former O.C.G.A. § 24-4-22 are included in the annotations for this Code section. In general. - When a party had evidence within the party’s power or control by which the party may rebut a claim against the party and failed to produce that evidence, a presumption arose that the evidence would be unfavorable or harmful to the party failing to produce the evidence. Maloy v. Dixon, 127 Ga. App. 151, 193 S.E.2d 19, 1972 Ga. App. LEXIS 821 (1972) (decided under former Code 1933, § 38-119). Rebuttable presumption in former O.C.G.A. § 24-4-22 applied when both parties fail to produce evidence as conclusive and satisfactory as appeared to be within their respective control. Eddie Parker Interests, Inc. v. Booth, 160 Ga. App. 15, 285 S.E.2d 753, 1981 Ga. App. LEXIS 2855 (1981) (decided under former Code 1933, § 38-119). Constitutionality. - Former statute violated the fundamental principle of criminal law that the guilt of the accused must be shown by competent evidence before a conviction could be legally had. Sokolic v. State, 228 Ga. 788, 187 S.E.2d 822, 1972 Ga. LEXIS 908 (1972) (decided under former Code 1933, § 38-119). Former O.C.G.A. § 24-4-22 was violative of a defendant’s right to be convicted

by evidence establishing guilt beyond a reasonable doubt. Radford v. State, 251 Ga. 50, 302 S.E.2d 555, 1983 Ga. LEXIS 695 (1983) (decided under former O.C.G.A. § 24-4-22). Not applicable in criminal case. - See Harper v. State, 129 Ga. 770, 59 S.E. 792, 1907 Ga. LEXIS 579 (1907) (decided under former Penal Code 1895, § 989); Davis v. State, 4 Ga. App. 441, 61 S.E. 843, 1908 Ga. App. LEXIS 329 (1908) (decided under former Penal Code 1895, § 989); Mills v. State, 133 Ga. 155, 65 S.E. 368, 1909 Ga. LEXIS 173 (1909) (decided under former Penal Code 1895, § 989); Wilson v. State, 8 Ga. App. 816, 70 S.E. 193, 1911 Ga. App. LEXIS 158 (1911) (decided under former Penal Code 1910, § 1015); Worley v. State, 136 Ga. 231, 71 S.E. 153, 1911 Ga. LEXIS 495 (1911) (decided under former Penal Code 1910, § 1015); Williamson v. State, 9 Ga. App. 442, 71 S.E. 509, 1911 Ga. App. LEXIS 598 (1911) (decided under former Penal Code 1910, § 1015); Whitley v. State, 14 Ga. App. 577, 81 S.E. 797, 1914 Ga. App. LEXIS 386 (1914) (decided under former Penal Code 1910, § 1015); Waller v. State, 164 Ga. 128, 138 S.E. 67, 1927 Ga. LEXIS 138 (1927) (decided under former Penal Code 1910, § 1015); Summerville v. State, 65 Ga. App. 11, 14 S.E.2d 574, 1941 Ga. App. LEXIS 228 (1941) (decided under former Code 1933, § 38-119); Bond v. State, 68 Ga. App. 15, 21 S.E.2d 866, 1942 Ga. App. LEXIS 16 (1942) (decided under former Code 1933, § 38-119); Clay v. State, 122 Ga. App. 677, 178 S.E.2d 331, 1970 Ga. App. LEXIS 1000 (1970) (decided under former Code 1933, § 38-119); Sokolic v.

General Consideration (Cont’d) State, 228 Ga. 788, 187 S.E.2d 822, 1972 Ga. LEXIS 908 (1972) (decided under former Code 1933, § 38-119); Lyle v. State, 131 Ga. App. 8, 205 S.E.2d 126, 1974 Ga. App. LEXIS 1306 (1974) (decided under former Code 1933, § 38-119); Peters v. State, 131 Ga. App. 513, 206 S.E.2d 623, 1974 Ga. App. LEXIS 1451 (1974) (decided under former Code 1933, § 38-119); Perryman v. State, 139 Ga. App. 655, 229 S.E.2d 131, 1976 Ga. App. LEXIS 1934 (1976) (decided under former Code 1933, § 38-119); Joseph v. State, 149 Ga. App. 296, 254 S.E.2d 383, 1979 Ga. App. LEXIS 1822 (1979) (decided under former Code 1933, § 38-119); Brown v. State, 150 Ga. App. 831, 258 S.E.2d 641, 1979 Ga. App. LEXIS 2391 (1979) (decided under former Code 1933, § 38-119); Tiller v. State, 159 Ga. App. 557, 284 S.E.2d 63, 1981 Ga. App. LEXIS 2692 (1981) (decided under former Code 1933, § 38-119); Radford v. State, 251 Ga. 50, 302 S.E.2d 555, 1983 Ga. LEXIS 695 (1983) (decided under former Code 1933, § 38-119); Drummond v. State, 173 Ga. App. 337, 326 S.E.2d 787, 1985 Ga. App. LEXIS 1532 (1985) (decided under former Code 1933, § 38-119); Jacobs v. State, 201 Ga. App. 57, 410 S.E.2d 320, 1991 Ga. App. LEXIS 1182 (1991) (decided under former O.C.G.A. § 24-422); Clayton v. State, 203 Ga. App. 843, 418 S.E.2d 610, 1992 Ga. App. LEXIS 627 (1992), cert. denied, No. S92C0991, 1992 Ga. LEXIS 466 (Ga. June 4, 1992).; Williams v. State, 239 Ga. App. 30, 521 S.E.2d 27 (decided under former O.C.G.A. § 244-22). Charge on spoliation of evidence based upon former O.C.G.A. § 24-4-22 was not appropriate in a criminal case; thus, the trial court did not err in not giving such a charge. Doyal v. State, 287 Ga. App. 667, 653 S.E.2d 52, 2007 Ga. App. LEXIS 894 (2007) (decided under former O.C.G.A. § 24-4-22). Former O.C.G.A. § 24-4-22 not applicable in criminal case. - Trial counsel was not ineffective for failing to request a jury charge under former O.C.G.A. § 24-4-22 addressing the state’s failure to preserve a child molestation victim’s pajamas because the trial court stated it would

not have given the charge if requested, and former § 24-4-22 was not appropriate in a criminal case. Cline v. State, 300 Ga. App. 615, 685 S.E.2d 501, 2009 Ga. App. LEXIS 1236 (2009) (decided under former O.C.G.A. § 24-4-22). Jury may not be charged on failure to produce evidence in criminal case but may draw conclusion therefrom. - While the jury may not be instructed to infer that if the defendant had evidence by which defendant might repel or rebut the charge against the defendant and failed to introduce the evidence the presumption arises that the defendant is guilty, the jury may be apprised of the facts from which it arrives at the same conclusion. Pritchard v. State, 160 Ga. App. 105, 286 S.E.2d 338, 1981 Ga. App. LEXIS 2929 (1981) (decided under former Code 1933, § 38-119). Instruction only in exceptional cases. - Principle set forth in former O.C.G.A. § 24-4-22 applied only in cases when it was shown that a party withheld evidence within the party’s power and control, and an instruction on that principle should be given only in exceptional cases. Hendley v. Evans, 319 Ga. App. 310, 734 S.E.2d 548, 2012 Ga. App. LEXIS 982 (2012), cert. denied, No. S13C0695, 2013 Ga. LEXIS 530 (Ga. June 3, 2013) (decided under former O.C.G.A. § 24-4-22). Intention of legislature was to penalize either party by a presumption of fact against either party for withholding evidence within their power to produce, and relying on evidence of a weaker nature. Fields v. Yellow Cab Co., 80 Ga. App. 569, 56 S.E.2d 845, 1949 Ga. App. LEXIS 880 (1949) (decided under former Code 1933, § 38-119). Limited application. - It may be conceded that this principle cannot be safely given as a charge except in a very limited class of cases, but it cannot be said to be improper in all cases. Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 174 S.E. 708, 1934 Ga. LEXIS 203 (1934) (decided under former Code 1933, § 38119). Application in divorce case as to financial worth. - In divorce case when one of the issues in the case was the financial worth of the defendant, when the

plaintiff introduced documentary evidence showing that the defendant received about $24,000 in cash from a certain business venture and the defendant did not offer any written evidence to substantiate defendant’s contention that only a small portion of the sum received was profit, there was no error in charging on the presumption arising from failure to produce evidence, or the strongest evidence. West v. West, 199 Ga. 378, 34 S.E.2d 545, 1945 Ga. LEXIS 322 (1945) (decided under former Code 1933, § 38119). Presumption of fact. - Presumption against a party withholding or suppressing evidence within the party’s control or reach was not one of law, but of fact and it could be rebutted. Savannah, Florida & Western Ry. v. Gray, 77 Ga. 440, 3 S.E. 158, 1887 Ga. LEXIS 123 (1887) (decided under former law); Brothers v. Horne, 140 Ga. 617, 79 S.E. 468, 1913 Ga. LEXIS 202 (1913) (decided under former Code 1933, § 38-119); Cocroft v. Cocroft, 158 Ga. 714, 124 S.E. 346, 1924 Ga. LEXIS 331 (1924) (decided under former Code 1933, § 38119); Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 174 S.E. 708, 1934 Ga. LEXIS 203 (1934) (decided under former Code 1933, § 38-119); Burns v. Colonial Stores, Inc., 90 Ga. App. 492, 83 S.E.2d 259, 1954 Ga. App. LEXIS 741 (1954) (decided under former Code 1933, § 38119); Independent Life & Accident Ins. Co. v. Craton, 102 Ga. App. 78, 115 S.E.2d 636, 1960 Ga. App. LEXIS 1056 (1960) (decided under former Code 1933, § 38-119); Gulf Life Ins. Co. v. Belch, 108 Ga. App. 480, 133 S.E.2d 622, 1963 Ga. App. LEXIS 680 (1963), rev’d, 219 Ga. 823, 136 S.E.2d 351, 1964 Ga. LEXIS 418 (1964); Glynn Plymouth, Inc. v. Davis, 120 Ga. App. 475, 170 S.E.2d 848, 1969 Ga. App. LEXIS 827 (1969), aff’d, 226 Ga. 221, 173 S.E.2d 691, 1970 Ga. LEXIS 489 (1970). Burden of proof irrelevant. - Former statute applied irrespective of the burden of proof. Shiver & Barnett v. Firemens Ins. Co., 60 Ga. App. 57, 2 S.E.2d 760, 1939 Ga. App. LEXIS 501 (1939) (decided under former Code 1933, § 38119). No evidence held back. - When it did not appear that the party held back

evidence within the party’s power to produce the non-production of more full and definite evidence than the party presented raised no presumption against the party and it was error to charge the former provisions. Schnell v. Toomer, 56 Ga. 168, 1876 Ga. LEXIS 231 (1876) (decided under former law); Western & A.R.R. v. Morrison, 102 Ga. 319, 29 S.E. 104, 1897 Ga. LEXIS 507 (1897) (decided under former Civil Code 1895, § 5163); Central of Ga. Ry. v. Bernstein, 113 Ga. 175, 38 S.E. 394, 1901 Ga. LEXIS 199 (1901) (decided under former Civil Code 1895, § 5163); Shields v. Georgia Ry. & Elec. Co., 1 Ga. App. 172, 57 S.E. 980, 1907 Ga. App. LEXIS 181 (1907) (decided under former Civil Code 1895, § 5163); Alabama Great Southern Ry. v. Hamby, 56 Ga. App. 215, 192 S.E. 467, 1937 Ga. App. LEXIS 323 (1937) (decided under former Code 1933, § 38-119); Howard v. Obie, 190 Ga. 394, 9 S.E.2d 666, 1940 Ga. LEXIS 495 (1940) (decided under former Code 1933, § 38119); Brosnan v. Long, 75 Ga. App. 837, 44 S.E.2d 809, 1947 Ga. App. LEXIS 653 (1947) (decided under former Code 1933, § 38-119); Maloy v. Dixon, 127 Ga. App. 151, 193 S.E.2d 19, 1972 Ga. App. LEXIS 821 (1972) (decided under former Code 1933, § 38-119). Trial court did not err when the court failed to preclude defendants from putting on evidence that contradicted an estate administrator’s version of events due to the defendants’ alleged failure to produce a video recording of a parking lot where an incident occurred pursuant to former O.C.G.A. § 24-4-22 as the administrator waived that claim. Pacheco v. Regal Cinemas, Inc., 311 Ga. App. 224, 715 S.E.2d 728, 2011 Ga. App. LEXIS 685 (2011) (decided under former O.C.G.A. § 24-422). Proving assertions without calling other witness. - No presumption will ever arise prejudicial to the party failing to produce the witness, provided the jury was satisfied from the evidence before the jury that the party who had such witness accessible had nevertheless proved the party’s claim or established the party’s defense. Weinkle & Sons v. Brunswick & W.R.R., 107 Ga. 367, 33 S.E. 471, 1899 Ga. LEXIS 76 (1899), overruled on other

General Consideration (Cont’d) grounds, Smith v. Telecable of Columbus, Inc., 238 Ga. 559, 234 S.E.2d 24, 1977 Ga. LEXIS 1101 (1977); Howard v. Obie, 190 Ga. 394, 9 S.E.2d 666, 1940 Ga. LEXIS 495 (1940) (decided under former Code 1933, § 38-119). Proving a negative. - When the means of proving a negative are not within the power of one of the parties, but all the proof on the subject is within the control of the other, who, if the negative is not true, can disprove it at once, the truth of the negative averment can be presumed from the fact that the party who has within the party’s power proof (if such exists) that the negative is not true still withholds or does not produce such proof. Hyer v. Holmes & Co., 12 Ga. App. 837, 79 S.E. 58, 1913 Ga. App. LEXIS 773 (1913) (decided under former Civil Code 1910, § 5749); Mayo v. Owen, 208 Ga. 483, 67 S.E.2d 709, 1951 Ga. LEXIS 421 (1951) (decided under former Code 1933, § 38119). All witnesses need not testify. - It never was the intention of the former statutory provisions of this statute to require that all witnesses to a scene of a collision, the nature of which was in question, should be summoned and used as witnesses. Fields v. Yellow Cab Co., 80 Ga. App. 569, 56 S.E.2d 845, 1949 Ga. App. LEXIS 880 (1949) (decided under former Code 1933, § 38-119). Former O.C.G.A. § 24-4-22 (see now O.C.G.A. § 24-4-22) did not require a party actually to produce all possible witnesses, but merely provided that an adverse presumption may arise from a failure to so produce. Jacobs v. State, 201 Ga. App. 57, 410 S.E.2d 320, 1991 Ga. App. LEXIS 1182 (1991) (decided under former O.C.G.A. § 24-4-22). If all witnesses not produced. - Party was not required to produce all witnesses; a party may rest one’s case upon one witness, though another be accessible, but that party subjects oneself to presumption arising from failure to so produce. Shiver & Barnett v. Firemens Ins. Co., 60 Ga. App. 57, 2 S.E.2d 760, 1939 Ga. App. LEXIS 501 (1939) (decided under former Code 1933, § 38-119); Tram-

mell v. Williams, 97 Ga. App. 31, 101 S.E.2d 887, 1958 Ga. App. LEXIS 697 (1958) (decided under former Code 1933, § 38-119). Calling one of two witnesses. - Fact that a party called only one of two witnesses who had an equal opportunity to know the facts which it was sought to establish did not authorize an inference that the other witness would have testified differently, or warrant an instruction under the former statutory provisions to the jury. Bank of Emanuel v. Smith, 32 Ga. App. 606, 124 S.E. 114, 1924 Ga. App. LEXIS 558 (1924) (decided under former Civil Code 1910, § 5749). Evidence under power and control of party. - Charging former statutory provisions was error since there was nothing to show that the absent witness was in any way under the power and control of the defendant, or that as a witness, if the witness were accessible at all, the witness was not as much so to the plaintiff as to the defendant. Anderson v. Southern Ry., 107 Ga. 500, 33 S.E. 644, 1899 Ga. LEXIS 102 (1899) (decided under former Civil Code 1895, § 5163); Brothers v. Horne, 140 Ga. 617, 79 S.E. 468, 1913 Ga. LEXIS 202 (1913) (decided under former Civil Code 1910, § 5749); Cocroft v. Cocroft, 158 Ga. 714, 124 S.E. 346, 1924 Ga. LEXIS 331 (1924) (decided under former Civil Code 1910, § 5749); Trammell v. Atlanta Coach Co., 51 Ga. App. 705, 181 S.E. 315, 1935 Ga. App. LEXIS 446 (1935); Atlanta Baggage & Cab Co. v. Atlanta Taxicabs, Inc., 104 Ga. App. 89, 121 S.E.2d 175, 1961 Ga. App. LEXIS 612 (1961) (decided under former Code 1933, § 38-119). Witness accessible to both parties. - When witness was present at the trial, equally accessible to both parties, it was error for the judge to give in charge the former statutory provisions. Bank of Emanuel v. Smith, 32 Ga. App. 606, 124 S.E. 114, 1924 Ga. App. LEXIS 558 (1924) (decided under former Civil Code 1910, § 5749). Examining physician was equally available as a witness to both parties; no presumption could arise against either party for failure to produce the physician as a witness. Bradford v. Parrish, 111 Ga. App. 167, 141 S.E.2d 125, 1965 Ga. App.

LEXIS 907 (1965) (decided under former Code 1933, § 38-119). Duty to preserve evidence if litigation reaonably foreseeable. - Duty to preserve relevant evidence arises when litigation is reasonably foreseeable to the party in control of that evidence, and thus while actual notice of litigation would clearly make such litigation foreseeable, other circumstances may show that the defendant or alleged tortfeasor actually or reasonably should have anticipated litigation, even without notice of a claim being provided; the court could consider any internal investigation and the reasons for notification of counsel and insurers. Phillips v. Harmon, 297 Ga. 386, 774 S.E.2d 596, 2015 Ga. LEXIS 485 (2015). Failure of both parties to produce evidence. - When both parties failed to produce as conclusive and satisfactory evidence as appeared to be within their respective control, the charge of the former statute was appropriate. Davidson v. Consolidated Quarries Corp., 99 Ga. App. 359, 108 S.E.2d 495, 1959 Ga. App. LEXIS 856 (1959) (decided under former Code 1933, § 38-119). Evidence used up before party aware of request to preserve. - Trial court properly rejected the spoliation claim since the evidence showed that the batch of sanitizer used to clean the playground on the day the child suffered the alleged injury would have been used up by the time the restaurant owner was asked to preserve any evidence related to the incident. Stern v. Pettis, 357 Ga. App. 78, 847 S.E.2d 824, 2020 Ga. App. LEXIS 456 (2020), cert. denied, No. S21C0374, 2021 Ga. LEXIS 338 (Ga. May 17, 2021). Failure of defendant to appear in court and the failure to offer evidence raised a presumption against the defendant that the charges against the defendant were true. Mitchell v. Hayden, Stone, Inc., 225 Ga. 711, 171 S.E.2d 280, 1969 Ga. LEXIS 623 (1969) (decided under former Code 1933, § 38-119). Failure of party to testify. - Provisions of former statutory were not applicable to the failure of a party defendant to testify at the party’s trial. Ramirez v. Mansour, 104 Ga. App. 651, 122 S.E.2d 594, 1961 Ga. App. LEXIS 761 (1961)

(decided under former Code 1933, § 38119); Maloy v. Dixon, 127 Ga. App. 151, 193 S.E.2d 19, 1972 Ga. App. LEXIS 821 (1972) (decided under former Code 1933, § 38-119). Failure to testify at former trial. - It was admissible to show that the defendant, since deceased, who was present at a former trial and competent as a witness, failed to testify concerning the transaction in issue, of which the defendant had peculiar knowledge; the bona fides of which was attacked by the plaintiffs. Wood v. Wilson, 145 Ga. 256, 88 S.E. 980, 1916 Ga. LEXIS 267 (1916) (decided under former Civil Code 1910, § 5749). Documentary evidence. - Former statute applied equally to documentary evidence. Oliver v. Fair Jewelers, Inc., 104 Ga. App. 392, 121 S.E.2d 787, 1961 Ga. App. LEXIS 694 (1961) (decided under former Code 1933, § 38-119). Medical exam under court order. - Former statutory presumption arising from failure to produce evidence was not applicable in a personal injury action when there could be no additional medical evidence available until after an examination was had under court order. Bradford v. Parrish, 111 Ga. App. 167, 141 S.E.2d 125, 1965 Ga. App. LEXIS 907 (1965) (decided under former Code 1933, § 38119). Refusal to submit to physical examination. - Evidence that the plaintiff in a case of personal injury refused to allow a physical examination was admissible. City of Cedartown v. Brooks, 2 Ga. App. 583, 59 S.E. 836, 1907 Ga. App. LEXIS 454 (1907) (decided under former Civil Code 1895, § 5163). Failure to produce testimony is badge of fraud, since the bona fides of the transaction is in issue, and witnesses who ought to be able to explain the transaction are in reach. Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 174 S.E. 708, 1934 Ga. LEXIS 203 (1934) (decided under former Code 1933, § 38-119); State Banking Co. v. Miller, 185 Ga. 653, 196 S.E. 47, 1938 Ga. LEXIS 487 (1938) (decided under former Code 1933, § 38-119). Spoliation of evidence raises a presumption against the spoliator. Glynn Plymouth, Inc. v. Davis, 120 Ga. App. 475,

General Consideration (Cont’d) 170 S.E.2d 848, 1969 Ga. App. LEXIS 827 (1969), aff’d, 226 Ga. 221, 173 S.E.2d 691, 1970 Ga. LEXIS 489 (1970) (decided under former Code 1933, § 38-119). Visitor’s claim that the trial court erred by finding that the visitor was not entitled to a presumption of spoliation lacked merit as the visitor failed to show that there was a factual dispute as to whether the subject elevator was removed from service and, thus, that there existed spoliation. Jones v. Med. Ctr. of Cent. Ga., Inc., 341 Ga. App. 888, 802 S.E.2d 286, 2017 Ga. App. LEXIS 298 (2017). Rules of spoliation triggered. - After the collision between a tractor trailer and a vehicle towing a car, the defendants were aware of contemplated litigation based on: (1) the letter from the plaintiffs’ attorney; (2) the defendants’ investigation; and (3) the defendants’ knowledge that every such highway collision could result in claims. This was sufficient to automatically trigger the rules of spoliation under former O.C.G.A. § 24-4-22. Sentry Select Ins. Co. v. Treadwell, 318 Ga. App. 844, 734 S.E.2d 818, 2012 Ga. App. LEXIS 1013 (2012) (decided under former O.C.G.A. § 24-4-22). In a software design company’s claim alleging that the appellants improperly copied the company’s software products, the appellants’ answer was properly struck on the ground that spoliation of evidence occurred because the appellants knew that they had an affirmative duty to preserve the images of their hard drives as that evidence was clearly relevant to the pending litigation; the relief the company prayed for was, inter alia, that all hard drives belonging to the appellants be imaged immediately; and the temporary restraining order expressly prohibited the appellants from destroying, deleting or removing from any computers any data or software before the hard drives of each computer were imaged for inspection and analysis by a special master. Delphi Communs. v. Advanced Computing Techs., 336 Ga. App. 435, 784 S.E.2d 802, 2016 Ga. App. LEXIS 200 (2016). Destruction of evidence. - When a party has destroyed evidence which may

be material to ensuing litigation, the trial judge may be authorized to dismiss the case or prevent the party’s expert witness from testifying in any respect about the evidence. Chapman v. Auto Owners Ins. Co., 220 Ga. App. 539, 469 S.E.2d 783 (decided under former O.C.G.A. § 24-422). Argument to jury. - Failure to produce witnesses who are accessible to a party will authorize counsel of the opposite party to argue before the jury that, if they are in doubt as to the truth of the transaction, they would be authorized to infer that, if the absent witnesses had testified, the testimony would have been prejudicial to the party who might most easily have produced them. City of Atlanta v. Feeney, 42 Ga. App. 135, 155 S.E. 370, 1930 Ga. App. LEXIS 260 (1930) (decided under former Civil Code 1910, § 5749); Howard v. Obie, 190 Ga. 394, 9 S.E.2d 666, 1940 Ga. LEXIS 495 (1940) (decided under former Code 1933, § 38119). Comment on defendant’s failure to produce evidence was not a comment on the defendant’s failure to testify as prohibited by the former statute. Wood v. State, 234 Ga. 758, 218 S.E.2d 47, 1975 Ga. LEXIS 1252 (1975) (decided under former Code 1933, § 38-119). Comment on failure to present certain witnesses in criminal cases. - Defense counsel in a criminal case is not barred from commenting, when appropriate, on the failure of the opposing side to present certain witnesses; while no legal presumption may arise from such failure, it is proper for counsel to draw an inference of fact from such failure and comment on such failure to the jury when there is competent evidence before the jury that the missing witness has knowledge of material and relevant facts. Morgan v. State, 267 Ga. 203, 476 S.E.2d 747 (decided under former O.C.G.A. § 24-422). Evidentiary value. - Fact that the accused failed to produce evidence had some evidentiary value and counsel could comment on it to the jury. Hunt v. State, 81 Ga. 140, 7 S.E. 142, 1888 Ga. LEXIS 77 (1888) (decided under former law); Morgan v. State, 124 Ga. 442, 52 S.E. 748,

1905 Ga. LEXIS 741 (1905) (decided under former Penal Code 1895, § 989); Saffold v. State, 11 Ga. App. 329, 75 S.E. 338, 1912 Ga. App. LEXIS 388 (1912) (decided under former Penal Code 1910, § 1015). Question for jury. - It was not error for court to charge that if either party in this case had in the party’s power or control any evidence that would have illustrated any issue in the case and such party failed to produce that evidence, the jury might infer it would have been against the party so failing to produce it, in the event the jury saw fit to do so; the charge left it for the jury to determine whether or not there existed a state of facts from which the presumption would arise and did not have the effect of invading the province of the jury. Beardsley v. Suburban Coach Co., 83 Ga. App. 381, 63 S.E.2d 911, 1951 Ga. App. LEXIS 872 (1951) (decided under former Code 1933, § 38-119). Charge demanding inference. - When a stated set of circumstances will demand a particular inference, it is not error for the court to instruct the jury to that effect, provided the question of whether the circumstances do in fact exist is left open for determination by the jury. Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 174 S.E. 708, 1934 Ga. LEXIS 203 (1934) (decided under former Code 1933, § 38-119); Shiver & Barnett v. Firemens Ins. Co., 60 Ga. App. 57, 2 S.E.2d 760, 1939 Ga. App. LEXIS 501 (1939) (decided under former Code 1933, § 38-119). There was no reversible error shown in the trial court’s exercise of the court’s discretion to charge the jury on the rebuttable presumption arising from spoliation, as opposed to instructing the jury that the jury had to accept as true an estate administrator’s description of a fatal assault on the administrator’s decedent as there was no authority cited that mandated the former instruction in the circumstances. Pacheco v. Regal Cinemas, Inc., 311 Ga. App. 224, 715 S.E.2d 728, 2011 Ga. App. LEXIS 685 (2011) (decided under former O.C.G.A.§ 24-2-2). Harmless error. - When the former statute was not applicable to the facts of a case, the court did not err in failing to give the former statute in a charge to the jury.

Especially was this true when there was no written request for the charge. Shields v. Georgia Ry. & Elec. Co., 1 Ga. App. 172, 57 S.E. 980, 1907 Ga. App. LEXIS 181 (1907) (decided under former Civil Code 1895, § 5163). Although the former statute was charged in a case where it was not applicable, in absence of harm or injury to one side, the charge did not require a reversal. Goldstein v. Ipswich Hosiery Co., 104 Ga. App. 500, 122 S.E.2d 339, 1961 Ga. App. LEXIS 730 (1961) (decided under former Code 1933, § 38-119). Defendant admitted liability and did not produce the accident report and pictures of the truck involved; since the withheld evidence went to liability and not damages, any error in giving a “withheld evidence” charge to the jury was harmless. AT Sys. Southeast, Inc. v. Carnes, 272 Ga. App. 671, 613 S.E.2d 150, 2005 Ga. App. LEXIS 286 (2005) (decided under former O.C.G.A. § 24-4-22). Exclusion of explanation harmless error. - Party should be permitted to explain the absence of witnesses which the evidence shows have knowledge of facts material to the case, so as to avoid the application of this statute, but the exclusion of testimony of explanation, if error, is harmless error, since the evidence of such witness or witnesses would be merely cumulative of the testimony of the complaining party, and which testimony the verdict of the jury shows the jury accepted. Gray v. General Fin. Corp., 108 Ga. App. 586, 134 S.E.2d 58, 1963 Ga. App. LEXIS 712 (1963) (decided under former Code 1933, § 38-119). Illustrations When husband of plaintiff was in court, summoned there by the plaintiff, and it appeared that he knew a great deal about the infirmities of his wife before the crash which was the subject of the suit, and about her condition after such collision, there was sufficient evidence to authorize a charge setting forth the principles of law set forth in the former statute. Price v. Whitley Constr. Co., 91 Ga. App. 257, 85 S.E.2d 528, 1954 Ga. App. LEXIS 907 (1954) (decided under former Code 1933, § 38-119).

Illustrations (Cont’d) Since appellant father had knowledge of his own financial situation and of the needs of his son, who was living with him at that time, his failure to produce evidence of such to refute or amplify the appellee’s showing, raised a rebuttable presumption that the appellee’s showing was accurate. Ritchea v. Ritchea, 242 Ga. 524, 250 S.E.2d 435, 1978 Ga. LEXIS 1274 (1978) (decided under former Code 1933, § 38-119). When eyewitness to homicide, and to the vital incidents and circumstances leading up thereto, was present in court, and the plaintiff nevertheless relied entirely upon evidence of a weaker and inferior nature, consisting of secondary evidence in the form of testimony as to the declarations made by the defendant, and which were not altogether certain or clear as to their proper import, the court was altogether justified in giving in charge the principle of law set forth by the former statute. Blanchard v. Ogletree, 41 Ga. App. 4, 152 S.E. 116, 1929 Ga. App. LEXIS 586 (1929) (decided under former Civil Code 1910, § 5749). Written offer. - When plaintiff failed to introduce in evidence written offer in plaintiff’s possession to buy defendant’s property, but instead relied on oral testimony to prove such offer, the court erred in refusing defendant’s instruction on drawing adverse inference on party’s omission to produce evidence within the defendant’s reach to repel charge against the defendant. Steinmetz v. Draper-Owens Co., 71 Ga. App. 814, 32 S.E.2d 417, 1944 Ga. App. LEXIS 236 (1944) (decided under former Code 1933, § 38-119). Destruction of driver’s log book raised a presumption against truck company-employer that driver was compelled to drive with insufficient rest. J.B. Hunt Transport, Inc. v. Bentley, 207 Ga. App. 250, 427 S.E.2d 499, 1992 Ga. App. LEXIS 1833 (1992), cert. denied, No. S93C0773, 1993 Ga. LEXIS 421 (Ga. Apr. 8, 1993) (decided under former O.C.G.A. § 24-2-2). Witnesses listed on indictment. - When the state called as witnesses seven of the 11 persons whose names appeared on the indictment, and there was nothing

in the record which disclosed that the other four witnessed the homicide or that those witnesses were present at the trial or even accessible to the state, no presumption unfavorable to the state would arise from a failure to introduce those individuals as witnesses. Lucear v. State, 221 Ga. 572, 146 S.E.2d 316, 1965 Ga. LEXIS 532 (1965) (decided under former Code 1933, § 38-119). Inability to question defense witnesses precludes judgment. - In a negligence action, the court erred in granting summary judgment before the plaintiff was able to question two key defense witnesses who avoided plaintiff’s discovery attempts, but who filed affidavits in support of the defendant’s motion. This judgment deprived the plaintiff of an opportunity to develop proof which may have well given rise to triable issues of fact, and also overlooked the rule that, when a party fails to produce evidence, the charge or claim against the party is presumed to be well founded. Shipley v. Handicaps Mobility Sys., 222 Ga. App. 101, 473 S.E.2d 533 (decided under former O.C.G.A. § 24-2-2). In petition for custody, former husband’s evidence charging the wife with misconduct and illicit relations with a named individual did not require the wife to procure from such individual a statement that the charge was not true. Waller v. Waller, 202 Ga. 535, 43 S.E.2d 535, 1947 Ga. LEXIS 461 (1947) (decided under former Code 1933, § 38-119). In a medical malpractice action, the court did not err in refusing to instruct the jury with regard to spoliation of evidence by the defendant physician since it was undisputed that the physician’s chart was missing vital signs data for the 15-minute period during which the physician was attempting to provide the plaintiff’s decedent with oxygen and that a monitor recorded this information, but the plaintiff did not point to any evidence which suggested what might have been proven with the missing data and, when questioned at trial, the plaintiff’s medical expert acknowledged that when the expert reviewed the case and developed an opinion, the expert did not have any problem with the defendant’s charting. Johnson v. Riv-

erdale Anesthesia Assocs., P.C., 249 Ga. App. 152, 547 S.E.2d 347, 2001 Ga. App. LEXIS 385 (2001), aff’d, 275 Ga. 240, 563 S.E.2d 431, 2002 Ga. LEXIS 383 (2002) (decided under former O.C.G.A. § 24-422). Trial court did not err in failing to instruct the jury on the law pertaining to spoliation of evidence because there was no evidence that the doctor had notice that the patient and the patient’s spouse were contemplating litigation when the manufacturer replaced the device used on the patient. Hand v. S. Ga. Urology Ctr., P.C., 2015 Ga. App. LEXIS 121. In a medical malpractice case involving the birth of a baby with serious defects due to lack of oxygen, in which the hospital destroyed the paper strips containing records of the fetal heart monitoring pursuant to its usual practice, the trial court could consider whether the hospital reasonably should have anticipated litigation, even without notice of a claim, considering the seriousness of the injury, the likelihood of litigation arising, and other factors. Phillips v. Harmon, 297 Ga. 386, 774 S.E.2d 596, 2015 Ga. LEXIS 485 (2015). Trial court did not err in failing to instruct the jury on the law pertaining to spoliation of evidence because there was no evidence that the doctor had notice that the patient and the patient’s spouse were contemplating litigation when the manufacturer replaced the device used on the patient. Hand v. S. Ga. Urology Ctr., P.C., 332 Ga. App. 148, 769 S.E.2d 814, 2015 Ga. App. LEXIS 265 (2015), cert. denied, No. S15C1304, 2015 Ga. LEXIS 594 (Ga. Sept. 8, 2015), overruled in part, Phillips v. Harmon, 297 Ga. 386, 774 S.E.2d 596, 2015 Ga. LEXIS 485 (2015). In a Dram Shop Act suit, given proof of spoliation under former O.C.G.A. § 244-22, the trial court erred in granting summary judgment to an injured party’s guardian as the tavern’s manager was aware of the potential for litigation and failed to preserve whatever videotaped evidence might have been captured as to whether one of the tavern’s intoxicated patron’s would soon be driving; hence, a rebuttable presumption arose against the tavern that the evidence destroyed would

have been harmful to the tavern, rendering summary judgment inappropriate. Baxley v. Hakiel Indus., 282 Ga. 312, 647 S.E.2d 29, 2007 Ga. LEXIS 471 (2007) (decided under former O.C.G.A. § 24-422). Workers’ compensation. - When an employer in a workers’ compensation action offers no evidence, and testimony of the employee further shows that the employer’s doctors examined the employee and were fully conversant with the employee’s physical condition, the presumption arises that if the employer had produced the doctors as witnesses, the doctors’ testimony would have corroborated that of the employee. GMC v. Craig, 91 Ga. App. 239, 85 S.E.2d 441, 1954 Ga. App. LEXIS 904 (1954) (decided under former Code 1933, § 38-119). When the defendant offered no testimony in defendant’s own behalf in a workers’ compensation case and failed to produce defendant’s employment records although the plaintiff had issued a subpoena in an effort to obtain those records, a presumption adverse to the defendant was authorized. 105 Ga. App. 408, 124 S.E.2d 655 (decided under former Code 1933, § 38-119). Material witness in slip and fall case. - In a slip and fall case, after the defendant submitted an affidavit stating the store policy on sweeping, but did not submit affidavits from the employees who actually carried out the purported inspections and sweeping on the date in question, former O.C.G.A. § 24-4-22 allowed an inference to be drawn that the employees’ testimony would show that the employees did have actual or constructive knowledge of the hazard but negligently refused to remove the hazard. Straughter v. J.H. Harvey Co., 232 Ga. App. 29, 500 S.E.2d 353 (decided under former O.C.G.A. § 24-4-22). Recording over videotape justified sanction. - In a premises liability case brought by a customer against a retailer, the trial court did not exceed the court’s authority in excluding testimony about a videotape sought to be admitted by the retailer that would have purportedly contradicted the customer’s and the customer’s parent’s recollections of what had

Illustrations (Cont’d) been recorded with regard to the customer being carjacked and shot in the retailer’s parking lot as the retailer was on notice, or should have been aware, that the customer was contemplating litigation based on correspondence to the retailer. The retailer knew of the importance of the tape, which depicted the robbery; failed to follow the retailer’s own policy as to retaining tapes for seven years; and the trial court was within the court’s discretion to have been “disturbed” that the retailer destroyed the tape by having other recordings made on top of the recording of the incident. Wal-Mart Stores, Inc. v. Lee, 290 Ga. App. 541, 659 S.E.2d 905, 2008 Ga. App. LEXIS 372 (2008), cert. denied, No. S08C1311, 2008 Ga. LEXIS 703 (Ga. Sept. 8, 2008) (decided under former O.C.G.A.§ 24-4-22). E-mail equally available to both parties. - Permittee alleged the Environmental Protection Division of the Georgia Department of Natural Resources (EPD) violated former O.C.G.A. § 24-4-22 by intentionally destroying email correspondence between the permittee and EPD which was favorable to the former. As the permittee was equally in a position to produce the evidence since the alleged email exchange took place between the permittee and EPD, it was not prejudiced as a result of the alleged destruction of the evidence. Agri-Cycle LLC v. Couch, 284 Ga. 90, 663 S.E.2d 175, 2008 Ga. LEXIS 546 (2008) (decided under former O.C.G.A.§ 24-4-22). Failure to report elevator accident. - Trial court erred in granting a directed verdict to a landlord in tenants’ claims that the tenants were injured in a mal-

functioning elevator. The landlord failed to report the incident and inspect the elevator as required by O.C.G.A. § 8-2106, giving rise to the spoliation presumption under former O.C.G.A. § 24-4-22 that the evidence would have favored the tenants. Beach v. B.F. Saul Prop. Co., 303 Ga. App. 689, 694 S.E.2d 147, 2010 Ga. App. LEXIS 347 (2010) (decided under former O.C.G.A.§ 24-4-22). Charging former provisions authorized in the following cases. - See Fountain v. Fuller E. Callaway Co., 144 Ga. 550, 87 S.E. 651, 1916 Ga. LEXIS 770 (1916) (decided under former Civil Code 1910, § 5749); Cocroft v. Cocroft, 158 Ga. 714, 124 S.E. 346, 1924 Ga. LEXIS 331 (1924) (decided under former Civil Code 1910, § 5749); Layfield v. O’Neill, 37 Ga. App. 265, 139 S.E. 924, 1927 Ga. App. LEXIS 617 (1927) (decided under former Civil Code 1910, § 5749); Murray v. Fitzgerald Convenient Ctrs., Inc., 239 Ga. App. 799, 521 S.E.2d 915 (decided under former O.C.G.A. § 24-4-22). Sanction for spoliation of evidence was erroneous. - In a personal injury case, the trial court erred by imposing the most extreme sanction of striking the defendants’ answer as a sanction for spoliation of evidence under former O.C.G.A. § 24-4-22 that included logbooks, data, and the results of an investigation. Because the plaintiff cited no evidence showing that the allegedly destroyed hard brake information was ever available and the defendants’ provided expert testimony showing that the data was not available, the trial court relied on erroneous findings in fashioning the appropriate sanction. Sentry Select Ins. Co. v. Treadwell, 318 Ga. App. 844, 734 S.E.2d 818, 2012 Ga. App. LEXIS 1013 (2012) (decided under former O.C.G.A. § 24-4-22).

RESEARCH REFERENCES Am. Jur. 2d. 29 Am. Jur. 2d, Evidence, § 259 et seq. Am. Jur. Proof of Facts. Intentional Spoliation of Evidence, 18 POF3d 515. C.J.S. 31A C.J.S., Evidence, § 239. ALR. Validity of statute making concealment

of or failure to produce books or papers presumptive evidence, 4 A.L.R. 471. Constitutionality of statutes or ordinances making one fact presumptive or prima facie evidence of another, 51 A.L.R. 1139; 86 A.L.R. 179; 162 A.L.R. 495. Adverse inference from failure of party to produce available witness or evidence,

as affirmative or substantive proof, 70 A.L.R. 1326. Presumption of death as evidence, 115 A.L.R. 404. Presumption or inference from party’s failure to produce witnesses within his control, as affected by his introduction of some evidence on the matter in question, 135 A.L.R. 1375. Presumption and burden of proof as regards continuance or revocation of will produced for probate, 165 A.L.R. 1188. Admissibility of evidence of party’s refusal to permit examination or inspection of property or person, 175 A.L.R. 234. Relationship between party and witness as giving rise to or affecting presumption or inference from failure to produce or examine witness, 5 A.L.R.2d 893. Effect of presumption as evidence or upon burden of proof, where controverting evidence is introduced, 5 A.L.R.3d 19. Modern status of the rules against basing an inference upon an inference or a presumption upon a presumption, 5 A.L.R.3d 100. Hospital’s liability for injuries sustained by patient as a result of restraints imposed on movement, 25 A.L.R.3d 1450. Propriety and prejudicial effect of comment or instruction by court with respect to party’s refusal to permit introduction of privileged testimony, 34 A.L.R.3d 775. Adverse presumption or inference based on failure to produce or examine codefendant or accomplice who is not on trial - modern criminal cases, A.L.R.4th 812. Adverse presumption or inference

based on party’s failure to produce or question examining doctor - modern cases, 77 A.L.R.4th 463. Adverse presumption or inference based on party’s failure to produce or examine that party’s attorney - modern cases, 78 A.L.R.4th 571. Adverse presumption or inference based on party’s failure to produce or examine witness who was occupant of vehicle involved in accident - modern cases, 78 A.L.R.4th 616. Adverse presumption or inference based on party’s failure to produce or examine spouse - modern cases, 79 A.L.R.4th 694. Adverse presumption or inference based on party’s failure to produce or examine friend - modern cases, 79 A.L.R.4th 779. Adverse presumption or inference based on party’s failure to produce or examine family member other than spouse - modern cases, 80 A.L.R.4th 337. Adverse presumption or inference based on state’s failure to produce or examine law enforcement personnel - modern cases, 81 A.L.R.4th 872. Adverse presumption or inference based on party’s failure to produce or examine transferor, transferee, broker, or other person allegedly involved in transaction at issue - modern cases, 81 A.L.R.4th 939. Effect of spoliation of evidence in tort actions other than product liability actions, 121 A.L.R.5th 157. Electronic spoliation of evidence, 3 A.L.R.6th 13.