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Silveira v. Kegerreis

Mary L. Silveira v. John M. Kegerreis

Silveira v. Kegerreis, 422 N.E.2d 789 (Mass. App. Ct. 1981)
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Court
Massachusetts Appeals Court · State Appellate Courts
Decided
July 2, 1981
Citations
422 N.E.2d 78912 Mass. App. Ct. 9061981 Mass. App. LEXIS 1148

Opinion of the Court

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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 *907 argument from commenting on the failure of the defendant to appear and testify. We agree.

Robert S. Troy for the plaintiff. Ephraim F. Horwitz for the defendant.

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.

How later courts describe this case

Explanatory parentheticals written by citing courts — 1 in all; the most informative distinct ones are shown.

1983: 11995: 119832026peak 1983 · 1

Relies on it most ⓘ

  1. Fino v. Nodine646 So. 2d 746 (Fla. Dist. Ct. App. 1995)
  2. Neitlich v. Peterson447 N.E.2d 671 (Mass. App. Ct. 1983)

Most recent

  1. Fino v. Nodine646 So. 2d 746 (Fla. Dist. Ct. App. 1995)
  2. Neitlich v. Peterson447 N.E.2d 671 (Mass. App. Ct. 1983)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

DepthCaseCited by
Murphy v. Moore, 29 N.E.2d 702 (Mass. 1940) 10

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