12 Mass. App. Ct. 906 | Mass. App. Ct. | 1981
The plaintiff appeals from a judgment entered on a verdict on special questions, claiming it was reversible error for the judge to prohibit the plaintiff in closing
The judge ruled that the plaintiff may comment on the defendant’s failure to testify, “[ojnly if you [plaintiff] show that the defendant was available.” That ruling was in error. The failure of a party to take the stand on his own behalf (except in a criminal case) is a proper subject for comment in argument. See Murphy v. Moore, 307 Mass. 163, 164-165 (1940). ’ It is not necessary to establish the availability of a party witness before such comment can be made in argument. There was no necessity for the plaintiff to take an exception when the judge sustained the defendant’s objection. See Mass.R.Civ.P. 46, 365 Mass. 811 (1974).
Accordingly, we reverse the judgment, set aside the verdict, and remand the case for a retrial, as we are in no position to assess what effect this erroneous ruling had on the jury’s answers to the special questions.
So ordered.
