(dissenting).
This judgment is being reversed because of the trial incident having to do with the non-production by the appellant of Dr. George Wilson as a witness; specifically for the refusal of the District Judge to permit a Dr. Bartel to testify “in lieu of Dr. Wilson,” and the court’s further refusal to “tell the jury that we [appellant] endeavored to bring him [Dr. Wilson] in.”
The cases cited in support of the majority opinion concern admittedly competent witnesses, and the only question in those decisions was whether the proffered evidence was important enough to override the ordinary trial procedure with respect to re*796buttal testimony. Those elements are not here present. The statement of facts shows plainly that Dr. Bartel was not a witness properly in this case. The situation which incidentally had been created on behalf of the appellant centered solely around Dr. Wilson. Dr. Bartel was not even mentioned at the time. He was merely Dr. Wilson’s assistant who had been present during the examination of the appellant by Dr. Wilson. There is not the slightest suggestion that he had ever examined appellant. Certainly he could not have testified as to Dr. Wilson’s findings or the latter’s conclusions therefrom.
In addition, the tendered evidence was, as indicated by the lower court, purely cumulative. Three doctors for the appellant had already testified that appellant was suffering from a nerve injury, which was the only purpose for which Dr. Bartel was presented. As Judge Jones, speaking for this court said in United States v. Montgomery, 3 Cir., 126 F.2d 151, 153, “It is well settled that the order of the reception of evidence lies largely in the discretion of the trial judge, whose action will not be reversed on appeal unless it amounts to a gross abuse of discretion.” Cf. National Surety Corporation v. Heinbokel, 3 Cir., 154 F.2d 266.
The majority also stress the refusal of the lower court to explain the absence of Dr. Wilson to the jury. But there was nothing before the District Judge to justify the requested explanation. Appellant’s attorney had stated in open court that he would produce Dr. Wilson. A week end elapsed, and on the resumption of the trial the attorney said, “Over the week end and this morning we endeavored to subpoena Dr. Wilson, but were advised that Dr. Wilson is just recovering from an illness”. There was no offer of proof as to Dr. Wilson’s actual condition as related to his ability to appear or of any attempted service of subpoena upon him. Nor was there an application under the alleged unusual circumstances to take the doctor’s deposition prior to the conclusion of the trial. A foundation could have been readily and legitimately laid which would have warranted counsel’s reference to the occurrence in his summation, if that had been desired. Under the circumstances, for the District Judge to have assumed as facts assertions without evidential background and to have passed them along to the jury might well have resulted unfairly to the appellee.
At the very least I fail to see that the trial court committed substantial error and I would affirm the judgment below.