Doherty v. Levine , 278 Mass. 418 ( 1932 )

Rugg, C.J.

This is an action for. assault and battery. The plaintiff was the only witness in her own behalf. The defendant and two children of the plaintiff’s employer testified in behalf of the defendant, denying the assault. The defendant testified that his first information of the contention of the plaintiff came when he went to the office of her attorney in response to his letter and was told by his assistant “that he had better settle; that no jury would believe him as against the plaintiff and demanded of him a certain sum of money.” The defendant denied the assault and declined to make the payment. This testimony was admitted without objection. The attorney for the defendant in his" argument to the jury urged that an inference that this conversation was true ought to be drawn from the fact that the assistant was not called to testify in contradiction of the defendant provided the jury believed that it was reasonably to be expected that such a witness would be called in rebuttal. The attorney for the plaintiff in his argument stated, in substance, that he did not call his assistant to the stand to rebut the testimony of the defendant as to the conversation because he did not “care to dignify it by replying to it, that of course it was not true.” To this statement the defendant objected and asked that the jury be instructed to disregard it. The judge overruled the objection and the defendant excepted. At the close of the charge the attorney for the defendant did not renew his objection and did not again request an instruction on the point.

The statement in argument by the plaintiff’s attorney was entirely improper and prejudicial in nature. It was a statement of fact purporting to be on his personal knowledge or at least concerning which the inference well might be drawn that he had personal knowledge. It was a matter concerning which testimony should have been introduced if it was to be considered by the jury. O’Brien v. Boston Elevated Railway, 214 Mass. 277. Buckley v. Boston Elevated Railway, 215 Mass. 50, 56. Betts v. Rendle, 236 Mass. 441, 444. Commonwealth v. Cabot, 241 Mass. 131. O’Neill v. Ross, 250 Mass. 92, 96, 97, and cases cited. Commonwealth v. Cooper, 264 Mass. 368, 374. Feinberg v. Atlantic Theatres Corp. 275 Mass. 127.

The exceptions are construed to mean that at the appropriate time the counsel for the defendant objected to the argument and requested that the jury be instructed to disregard it. When the objection to the argument was overruled by the trial judge, that ended the incident so far as the defendant’s counsel was concerned. The trial judge had made a final ruling that the argument was not improper and that the jury need not be instructed concerning it. The circumstance that at the close of the charge no further exception was taken did not deprive the defendant of whatever value there was in the exception previously- taken to a definitive ruling.

The case is quite distinguishable from Commonwealth v. Costley, 118 Mass. 1, 22.

Exceptions sustained.