99 Wash. 201 | Wash. | 1917
This is an appeal from the judgment of the lower court dismissing the action brought by the plaintiff, after having sustained defendants’ motion therefor made subsequent to the empaneling of a jury and at the conclusion of the opening statement of plaintiff’s counsel, upon the ground that the opening statement did not state facts sufficient to constitute a cause of action.
“Counsel stated too little, not too much. The court directed a judgment, not because the appellant was admitted out of court, but because the opening statement did not state facts sufficient to constitute a cause of action. Counsel may state their case as briefly or as generally as they see fit, and it is only when such statement shows affirmatively that there is no cause of action, or that there is a full and complete defense thereto, or when it is expressly admitted that the facts stated are the only facts which the party expects or intends to prove, that the court is warranted in acting upon it. The opening statement now before the court contained no admissions which' would constitute a defense or defeat the action, and the omission of counsel to state the case more fully is no justification for the action of the court below in withdrawing the case from the jury.”
This principle was applied and expressly approved in Brooks v. McCabe & Hamilton, 39 Wash. 62, 80 Pac. 1004. See, also, James v. Pearson, 64 Wash. 263, 116 Pac. 852.
The rule is so well settled that it requires no elaboration. It means simply what it says, that the opening statement must either include matter which constitutes a complete defense to the action, or must affirmatively and expressly exclude matter essential to the plaintiff’s right of recovery, before the trial court is warranted in entering judgment thereon. Where counsel merely outlines his case, leaving the details to be supplied by the testimony, judgment should not be entered upon the ground that no case is stated.
This action was brought by the appellant against respondents to recover damages for the death of his minor son, caused by the wrongful act of one of the defendants while in the alleged employment of the respondents, who are sought
The court should proceed with caution in entering judgment upon the opening statement of counsel, and unless the case comes within the rule hereinbefore stated, the plaintiff should not be deprived of the right to submit his evidence.
For the reasons indicated, the judgment is reversed.
Ellis, C. J., Fullerton, Main, and Parker, JJ., concur.