114 P. 940 | Or. | 1911
delivered the opinion of the court.
“A party is entitled to introduce evidence and prove a cause of action or to defend against evidence tending to sustain a cause of action if no statement at all is made, and is not confined in the introduction of evidence to the statement made in the opening, if one is made. The opening statement may be wrong as to some facts, and there is no requirement that it shall give all the facts of the case, which may turn out to be different from the statement.”
Also in Fletcher v. London & Northwestern Ry. Co., 65 L. T. R. 605, an English case for personal injuries, where the trial judge nonsuited the plaintiff, for the reason that the opening statement of his counsel did not show a cause of action, it was held that the judge had no right to so nonsuit plaintiff, except by the consent of his counsel.
The practice of granting a nonsuit, much less the dismissing of the complaint on the opening statement, has never prevailed in Wisconsin, and in Haley v. Western Transit Co., 76 Wis. 344 (45 N. W. 16), and cases there cited, was not permitted, even though the counsel consented that such statement should be considered in connection with the complaint and treated as a part thereof; but in Kansas such practice appears to have been sanctioned in Lindley v. A. T. & S. F. Ry. Co., 47 Kan. 432 (28 Pac. 201).
We do not deem it opportune to discuss this case at length, although several questions that may possibly arise are ably presented by the briefs of the respective counsel. In our opinion the case should be tried. The judgment of the lower court is accordingly reversed, and the cause remanded for trial.
Mr. Justice Burnett concurs in the result.
Reversed.