376 Mass. 929

November 1, 1978

Since the record supports the jury verdict, there was no error in the judge's denial of the plaintiff's motion for a new trial. Although there was no objection to defense counsel's acting as trial counsel and witness, we take this occasion to repeat our disapproval of this practice. "In most cases, counsel cannot testify for their clients without subjecting themselves to just reprehension. But there may be cases in which they can do it, not only without dishonor, but in which it is their duty to do it. Such cases, however, are rare; and whenever they occur, they necessarily cause great pain to counsel of the right spirit" (emphasis supplied). Kendall v. Atkins, 374 Mass. 320, 323-324 (1978), quoting from Potter v. Ware, 1 Cush. 519, 524 (1848). See S.J.C. Rule 3 : 22, DR 5-101 (B), 359 Mass. 796 , 814 (1972). The ethical problems raised by trial counsel acting as counsel and as a witness are most serious where, as here, counsel is an independent witness in a family dispute and the outcome of the case may well turn on his credibility.

In any event, judges should not permit this practice absent exceptional circumstances. Attorneys finding themselves in the position of trial counsel and witness should obtain substitute counsel well in advance of trial.

Judgment affirmed.

Home FRANCIS W. SIMONOKO & another [Note 1] vs. STOP & SHOP, INC.

376 Mass. 929

November 30, 1978

The plaintiffs, husband and wife, appeal from a judgment dismissing their complaint in this tort action. The judge considered the case on the defendant's motion for summary judgment. In effect, the parties stipulated to the evidence most favorable to the plaintiffs. The wife stepped on a bottom shelf in the defendant's store to reach a bottle at the back of a top shelf, and, as she came down, she caught her nose on a hook about five inches long. The hook, which was attachable "by a squeezing action," was of a type used to display merchandise at the defendant's store and at other stores, including the store in which the wife worked. There was no warning to indicate the presence of the hook. Over the defendant's objection, the wife would have sought to testify that the store manager told her, on the way to the hospital following the accident, that he had informed the defendant company that the hooks were unsafe and very dangerous and that the store should get rid of them. The judge ruled that this evidence was inadmissible.

1. The manager's statements were not admissible. The plaintiffs concede that the manager's statements would be admissible only if made within the scope of his authority. They argue that taking injured customers to the hospital was "within the scope and course of the manager's employment," and that this fact would permit a finding

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that the manager was authorized to make the statements he made about the hooks. That conclusion is not warranted. On the principles which the plaintiffs grant are applicable in determining whether the manager's statements were admissible, there is no showing of the manager's authority to speak for the defendant. See Bristol Wholesale Grocery Co. v. Municipal Lighting Plant Comm'n of Taunton, 347 Mass. 668, 671 (1964); Sargent's Case, 347 Mass. 250, 253 (1964); Sacks v. Martin Equip. Co., 333 Mass. 274, 279-280 (1955). Cf. Rosenston v. Bickford Shoes, Inc., 340 Mass. 769, 772-773 (1960) (statements by defendant company's president). We note, however, that the manager's statements were not inadmissible merely because they were opinions. See K. B. Hughes, Evidence Section 515 (1961); W. B. Leach & P.J. Liacos, Massachusetts Evidence 194-195 (4th ed. 1967).

2. On the admissible evidence, the defendant was entitled to a judgment in its favor. Cases in which a finding of negligence on the part of a retailer was warranted and those in which no such finding was warranted are collected in Letiecq v. Denholm & McKay Co., 328 Mass. 120, 122 (1951). For more recent cases, compare Vance v. Gould, 355 Mass. 104 (1968) (box left on floor), where a finding of negligence was warranted, with St. Rock v. Gagnon, 342 Mass. 722 (1961) (jack handle at service station), Sprague v. Great Atl. & Pac. Tea Co., 342 Mass. 711 (1961) (box of groceries coming down conveyor belt), and Mudge v. Stop & Shop, Inc., 339 Mass. 763 (1959) (stock truck in aisle), where a finding of negligence was not warranted. There was no evidence that the display of goods from such hooks or the presence of the hooks could be viewed as unreasonable, considering the nature of the business, and there was no showing that the location of the hooks was unreasonable.

Judgment affirmed.


[Note 1] Francine Simonoko.