192 So. 588 | Ala. | 1939
The several assignments of error challenge the action of the trial court in giving to the opening statement of appellants' counsel, defining the issues of fact to the jury, evidential effect authorizing the general affirmative charge against appellants.
Appellants thus state the question: A jury having been impaneled and sworn and the issue of fact formed by the pleadings, the court was without authority to conclude the case without the introduction of the evidence (and to do this against defendants' objection) merely on counsel's opening statement to the jury.
Such statement is merely to advise the jury concerning the issues of facts involved. Constitution of Alabama, § 11; Code of 1923, §§ 8593, 8594, 8595 and 9498; Temple v. Cotton Transfer Company,
The opening statement of counsel, under Alabama practice, is not evidence and does not necessarily contain all or even a major part of defendant's case. It is merely intended to indicate the issues of fact to the jury. A defendant is at liberty to present evidence of facts which were not mentioned or foreshadowed in defendant's opening statement to the jury. This is the well-considered announcement in leading cases. Brashear v. Rabenstein,
The procedure followed by the trial court presents a case of first impression in this court, in the trial court's directing a verdict upon the alleged admissions of defendants' counsel in his opening statement to the jury.
A search of our cases brings to light only one decision involving the effect of opening statements to the jury as admissions of fact. The pertinent decision was in Southern Railway Co. v. McCants,
The question for decision is illustrated by our cases hereinafter noted.
In Loeb v. Webster,
In Atlanta Life Ins. Co. v. Ash,
The English rule is stated as follows:
"I am of the opinion that the learned judge struck too soon. I will state the proposition in its broadest form. In my opinion a judge has no right, without the consent of the plaintiff's counsel, to non-suit the plaintiff upon his counsel's opening statement of the facts. The opening of counsel may be incorrect in consequence of his having had wrong instructions. Owing to some accident, even with the greatest care, the evidence of the witnesses when they are called may differ from that which has been opened by counsel. It is for that very reason that a right of reply is given to the plaintiff's counsel, and in recent times a right to sum up the evidence has been given to the plaintiff's counsel, and the defendant's respectively, after his witnesses have been called. The experience of judges and of practitioners shews that the evidence often turns out to be somewhat different from that which appears in the instructions given to counsel. Therefore I state this proposition in its full extent — a judge has no right to non-suit a plaintiff upon his counsel's opening without the consent of the counsel. That is what the learned judge has done in the present case. There was no assent on the part of the plaintiff's counsel. On the contrary, the plaintiff's counsel insisted upon his right to have the plaintiff's witnesses called, but, notwithstanding this, the learned judge persisted in non-suiting the plaintiff on his counsel's opening. I think he was wrong in so doing, and the case must go down for trial." Fletcher v. London and North Western Railway Company, 1892, 1 Q.B. 122.
The Supreme Court of Illinois in the case of Pietsch v. Pietsch,
"When the jury had been sworn to try the issues and render a verdict according to the evidence, it was the privilege of the attorney for each party, if he saw fit to do so, to make an opening statement of what he expected to prove. Such a statement is not intended to take the place of a declaration, complaint, or other pleading, either as a statement of a legal cause of action or a legal defense, but is intended to advise the jury concerning the questions of fact involved, so as to prepare their minds for the evidence to be heard. How full it shall be made, within reasonable limits, is left to the discretion of the attorney, but the only purpose is to give the jury an idea of the nature of the action and defense. To relate the testimony at *599
length will not be tolerated. 1 Thompson on Trials, 267. 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. The argument that a court may direct a verdict, not upon the evidence or the want of evidence but upon the statement of an attorney, rests mainly upon the power of an attorney to make admissions binding upon his client and to waive his rights. There is no dispute about the authority of an attorney to admit facts on the trial and waive the necessity of introducing evidence as to such facts, but the authorities cited relate to such admissions in the trial of the case. That the opening statement to the jury cannot be treated as an admission of facts binding upon the client was decided in Lusk v. Throop,
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"The decision chiefly relied upon in support of the ruling of the court was made in Oscanyan v. Winchester Repeating Arms Co.,
In the case of Temple v. Cotton Transfer Co. et al.,
"The action of the trial court in the present case exemplifies a development in legal proceedings peculiar to American jurisprudence. The principle of procedure here involved is to be distinguished from cases involving the exercise of the inherent power of courts when their jurisdiction is invoked in transactions which may clearly be deemed contra bonos mores or obnoxious to public policy, such as an attempt by judicial procedure to obtain compensation for acts which the law denounces as corrupt and immoral, or declares to be criminal, such as attempts to bribe a public officer, or to evade the revenue laws, embezzle public funds, or clear, intentional, manifest, and continued abuse of judicial functions or process. In such a case it is the manifest duty of any court to take advantage of any source of information available and, on its own motion, exercise the full measure of its powers of investigation, and if it should clearly appear that for any reason suggested there could be no recovery, such court should not hesitate to so declare, and give such direction at the earliest possible moment as will dispose of the action. Oscanyan v. Arms Co.,
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"Clients may not be penalized for failure of attorneys to conform to requirements which the terms of the statute do not exact. It also clearly appears that these statements may not, because of the limited purpose which called them forth, be deemed 'admissions' in the technical sense of that term. 'Admissions by counsel, made in good faith at the trial of an action in open court for the purpose of dispensing with testimony, bind their clients. * * * But such admissions, in order to bind a client, must be distinct and formal, and made for the express purpose of dispensing with formal proof of a fact at the trial.' * *"
In Best, Administrator, v. District of Columbia,
It will be noted that in the Oscanyan case, supra, the suit was sought to be rested upon an illegal contract or that which sought to ignore recognized public policy of the government.
We have examined the important cases from other jurisdictions touching the giving of the general affirmative instruction, based on the opening statement of counsel to the jury. As we understand these decisions, the rule sought to be followed, or which has been invoked generally, refers to statements by plaintiff's counsel intended to show a cause of action and that in support thereof, and not that by defendant's counsel stating generally the line of defense. The majority of the cases cited when the charge was given are where plaintiff has insisted in opening statement upon an immoral contract or that against public policy, or where it clearly appears, after resolving all doubt in plaintiff's favor, no cause of action is shown to exist.
For example, in Best, Administrator, v. District of Columbia,
The majority of the cases cited are rested on statement of plaintiff's counsel rather than on statement of defendant's counsel: the cases to the contrary were generally by intermediate federal courts. In the cases applying the rule, caution was advised in its application.
In Rock River Investment Co. v. Mountain Finance Corp.,
In Anderson v. Missouri States Life Ins. Co., 6 Cir.,
In Gross v. Bennington,
The rule lately announced by the Massachusetts Court in Meeney v. Doyle,
In the extended annotations on the subject of "direction of verdict on opening statement of counsel," 83 A.L.R. 221, it is stated:
"This annotation does not cover the question whether, upon the particular matter included in an opening statement, a verdict should be directed, but is confined to the general question of the right to direct a verdict on the opening statement of counsel.
"1. General Rules. It is well established as a general rule, subject to qualifications subsequently shown, that where the opening statement of counsel clearly shows that there is no cause of action, or that a defense to the action exists, the trial court is authorized in its discretion to direct a verdict."
The qualifications are (1) to be exercised with great caution and where clear no cause of action or defense exists; (2) a favorable interpretation in favor of statement and (3) never without full opportunity to explain and qualify.
In addition to the many authorities cited from the Federal Courts are decisions from Arkansas, District of Columbia, Illinois, Kansas, Massachusetts, Michigan, Minnesota, Missouri, Montana, New Hampshire, New Jersey, New York, Ohio, Oklahoma, South Dakota and Washington, supporting the text as stated by the annotations. In the cases cited the reason given for the rule is that it would be an idle waste of time, which would not benefit the party offering it, when it was shown that recovery will not be sustained. State v. Hall,
The annotator then discusses Oscanyan v. Winchester Repeating Arms Co.,
We do not rest the decision on the fact that there may be a sound distinction between opening statements to the jury of parties plaintiff and defendant. This would appear to have been recognized by the majority of the decisions indicated. In the opening statement the plaintiff must maintain his right to recovery. The defendant, being drawn into court by the pleading, has not been held to the same strict rule by courts of last resort as that applied to plaintiff's opening statement by counsel.
We observe as to the cases from this jurisdiction, now to be considered, that all save one dealt with opening statements to the jury by counsel for plaintiff. In Southern Railway v. McCants,
We conclude the matter with the observation that due process is guaranteed by the Constitution and statutes. Constitution of 1901, § 11, Code of 1923, §§ 8593, 8594, 9498. The organic law and statutes guarantee, in a proper case, that the parties have a trial by jury, that a party may be heard in his own proper person *602
and by competent and material evidence duly introduced and by the representations of his counsel. The opening statement of counsel to the jury is made after the issues have been settled. Such statements are not a substitute for pleading nor for material evidence showing that a cause of action or defense exists. Donnelly v. Paramount Organization, Inc.,
The record shows that a plea of the general issue was filed for the defendants; a jury was impaneled and sworn to try the issues of fact; the opening statement of attorney for defendant raised no immoral issue of fact or which was against the public policy or which prevented the court from proceeding with a lawful and orderly trial. Under the circumstances, an action of not being "heard" was in violation of Section 11 of the Constitution, if it be held to permit the trial court to direct a verdict for appellees on the opening statement of defendant's counsel made with no thought of waiving his trial by jury. That counsel did not intend to waive such right is shown by the questions of the court to appellants' counsel and his reply, that in making the statement to the jury, counsel had merely stated what was believed to be sufficient of the evidence and what was expected to be shown thereby in order to enable the jury to understand clearly defendants' position and defense. That is, the record clearly discloses that it was not the intention of defendants' counsel to make an admission which would be accepted by the court as conclusive of his defense to preclude the introduction of evidence.
To conclude the whole case rested upon counsel's statement to the jury and to give affirmative charge because of such statement of counsel was error to reverse. It follows that the judgment of the trial court is reversed and the cause is remanded for a trial by jury on the pleading and evidence.
Reversed and remanded.
ANDERSON, C. J., and BOULDIN, BROWN, and FOSTER, JJ., concur.
GARDNER, J., dissents.
KNIGHT, J., not sitting.