dissenting.
I dissent.
I agree with the majority that plaintiffs counsel had the right to argue to the jurors that they could draw an adverse inference from defendant’s failure to testify. “Availability is not a factor governing the right to comment when a party, as distinguished from a non-party does not testify.” Pasternak v. Mashak, 428 S.W.2d 565, 569 (Mo.1967). Certainly the defense was entitled to respond to that argument. Here I believe that the *719response went beyond the scope of permissible argument.
In Ballinger v. Gascosage Elec. Coop., 788 S.W.2d 506 (Mo. banc 1990) 1, defendant, during closing argument, asked the jury to draw an adverse inference from plaintiffs wife failure to testify regarding her husband’s injuries. In response, plaintiffs counsel told the jury plaintiffs wife might be upset if required to testify. Id. at 513. On appeal, the Court held that counsel’s assertion that plaintiffs wife might be upset was an “appropriate response” to defendant’s adverse inference argument. Id. The Court also characterized defendant’s challenge to plaintiffs rebuttal as “not substantial.” Id; See also Hammond v. R.L. Smith Trucking Co., 833 S.W.2d 6, 9 (Mo.App.1992).
The argument in Ballinger is simply an example of a permissible attempt to counter an adverse inference argument. In this case defense counsel was entitled to respond and argue, among other things that he did not call defendant because plaintiff failed to make a submissible case. Defense counsel went too far however when he argued, over objection, that if plaintiffs counsel thought defendant “was going to testify that he was at fault ... he would have called [defendant] and would have asked [defendant], well, you are at fault aren’t you.” The implication from that argument was that plaintiff did not call defendant to testify, because defendant’s testimony would have been unfavorable to plaintiff. By this argument, defense counsel was, in effect, asking the jury to draw an adverse inference from the failure of plaintiff to call defendant to testify. Thus defense counsel was able to argue the import of his client’s testimony without putting him on the stand and subjecting him to cross-examination. This I believe was error.
The prejudicial effect of erroneously permitting a party to make an adverse inference argument is well established. Leehy v. Supreme Express & Transfer Co., 646 S.W.2d 786, 789-91 (Mo. banc 1983). Under the circumstances of this case, the trial court committed prejudicial error by overruling plaintiffs objection to the argument.
For the reasons stated, I would reverse the judgment of the trial court.
. Overruled on other grounds by Zueck v. Oppenheimer Gateway Properties, Inc., 809 S.W.2d 384 (Mo. banc 1991).