1. The judge's third ruling (conclusion) of law was correct. DePasqua v. Bergstedt, 355 Mass. 734 , 736 (1969). 2. His ninth finding of fact was warranted by the evidence and cannot be pronounced "clearly erroneous" (see Building Inspector of Lancaster v. Sanderson, 372 Mass. 157 , 160-161 , and cases cited) within the meaning of Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). See Blanchette v. Blanchette, 362 Mass. 518 , 523-524 (1972), and cases cited. 3. The plaintiff was not entitled to a new trial by reason of the fact (if it was such) that the judge had expressed to both counsel a preliminary view of the evidence different from the one he entertained at the conclusion of the case. As the plaintiff concedes in his brief, "[a] judge has a right and even a duty to change his mind about the facts or the law when there is no bar in law to his doing so and he is convinced that his view of either is erroneous." The order denying the motion for a new trial and the judgment are affirmed, with double costs.
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
argument from commenting on the failure of the defendant to appear and testify. We agree.
The judge ruled that the plaintiff may comment on the defendant's failure to testify, "[o]nly 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.