MacKey v. Boswell , 63 Okla. 20 ( 1916 )

I concur in the conclusion reached in this case and in the opinion of the court, except that I think the holding that, "where the answer states a defense to plaintiff's cause of action, it is error to render judgment for plaintiff upon the pleadings and opening statement of defendant's counsel to the jury,' is too broad as a general rule.

The answer being as shown by the opinion of the court, I agree that judgment should not have been rendered against the defendant upon the pleadings nor upon the following opening statement:

"Gentlemen of the jury, we expect the testimony in this case to show that the defend ant had been trading with the plaintiffs for some two years, running an open account, and in April, 1911, he went to them, and he had 300 acres of land to put in, and he wanted to make an agreement with the plaintiffs to carry him for the crop season of 1911. He had 200 acres of oats, which at that time had failed, and he intended to put that land in fall crops, kaffir corn, milo maize, etc., and they agreed to carry him and did carry him for six weeks or two months, and then arbitrarily cut him off and breached the contract they had with him. About $80 was yet due him in groceries and provisions, according to the contract they had made, and the security he had given. Of course, the crops were in bad condition at that time, and on that ground, I presume, they refused to give him any more groceries or provisions under the contract. We claim he relied upon the contract, and because of the breach of the contract by the plaintiffs the defendant was prevented from planting and raising the fall crop as he had arranged to do; and, if we show this, we will expect a verdict at your hands."

I do not believe that a verdict should be instructed or a judgment rendered on account of the insufficiency of an opening statement to constitute a cause of action or ground of defense, nor under any circumstances unless it affirmatively and clearly appears therefrom that no cause of action or ground of defense exists, and that further procedure in the case would be useless.

As a general rule, it should not be done unless the defect or fatal negation of a cause of action or ground of defense in such opening statement is specifically brought to the attention of the party making the same, so that he may be afforded an opportunity to correct it; but when a party distinctly and unequivocally makes an opening statement showing affirmatively that, notwithstanding he may have filed in the case a good and sufficient pleading, he has no cause of action or ground of defense, and does not offer to withdraw or correct it when the effect of the same comes into question on a request for an instruction or judgment. I believe a verdict may be directed or a judgment summarily entered thereon.

In the case of Patterson et al. v. Morgan, 53. Okla. 95,155 P. 694, this court held:

"An oral admission of a material fact, made by an attorney in his opening statement to the jury, if distinct and formal, and made for the purpose of dispensing with the formal proof of some fact at the trial, is a solemn admission and conclusive upon the party making such admission. Where, however, the so-called admission is not distinct and formal, but equivocal and of doubtful meaning, and where there immediately follows the making of the so-called admission, the further statement that opposing counsel will be expected to prove their case as they stated it, such statement or admission will not supply proof of a fact material to the plaintiff's right of recovery.

"Where the statement of counsel is not such as to constitute it a solemn admission of some controverted question of fact, it is error for the court, over the objection of the opposing party, to so instruct the jury; the province of the jury being to determine all questions of fact."

This holding does not limit the power of the court to direct a verdict or render a judgment upon opening statements to such as are "made for the purpose of dispensing with formal proof," as will be seen from reading all of the opinion relating to this question.

And in First State Bank of Keota v. Bridges, 39 Okla. 355,135 P. 378, it was held:

"Where defendant by answer admits the usurious character, in their inception, of notes, which do not appear usurious upon their face, and that, as indorsee of original payee, he took and received of their maker, in their payment, the usurious interest for which they covertly provided, denying no fact essential to plaintiff's recovery of penalty under section 3, art. 14 (section 314, Williams' Ann. Ed.), Constitution of Oklahoma, except knowledge of such usurious character, and where his opening statement to the jury distinctly and unequivocally discloses a state of facts amounting to such knowledge and absolutely entitling plaintiff to a verdict, it is not error to instruct such verdict upon motion therefor."

In the case of Mascho et al. v. Johnson, 49 Okla. 646,153 P. 630, cited in the opinion of the court, it appears from the briefs that the motion was merely for judgment on the pleadings, although the court, in response thereto, stated that it gave judgment upon the pleadings "and statement of counsel"; and in Sullivan v. Williamson et al., 21 Okla. 844,98 P. 1001, the motion was "upon the ground that the facts as stated in the pleadings and opening statement did not entitle the plaintiff to any relief," while it is stated in the opinion that:

"In this case it (the opening statement) was not preserved, so we have no means of knowing upon what facts the court granted a nonsuit."

It appears that no cause has been before this court in which it affirmatively appeared from a distinct and unequivocal opening statement that there was no cause of action or ground of defense; but the rule stated in the instant case and in each of the last two mentioned above is in conflict with the rule announced in Patterson et al. v. Morgan, supra, and First State Bank of Keota v. Bridges, supra, and is so broad as to be understood to apply in cases of the most deliberate, the most explicit, and unequivocal opening statements, as well as in such cases as the last cited above.

In 10 Modern American Law, p. 173, it is said:

"The opening statements of the parties are binding upon them, and in some jurisdictions judgment may be entered at the close of plaintiff's opening statement, if in making the statement he had failed to state a cause of action. Usually, however, counsel in making opening statements are not held to such a strict rule, and may be allowed to add to the statements, or to introduce evidence of matters not contained in them."

And in Oscanyan v. Winchester Repeating Arms Co.,103 U.S. 261, 26 L. Ed. 539, it is held:

"The trial court may direct a verdict for the defendant upon the opening statement of the plaintiff's Counsel."

In that ease it was said in the opinion:

"Of course, in all such proceedings, nothing should be taken, without full consideration against the party making the statement or admission. He should be allowed to explain and qualify it, so far as the truth will permit; but if, with such explanation and qualification, it should clearly appear that there could be no recovery, the court should not hesitate to so declare and give such direction as will dispose of the action.

"Here there were no unguarded expressions used, nor any ambiguous statements made. The opening counsel was fully apprised of all the facts out of which his client's claim originated, and seldom was a case opened with greater fullness of detail. He dwelt upon and reiterated the statement of the fact which constituted the ground of the court's action in directing a verdict for the defendant, namely. * * *"

I think the opinion in the instant case erroneously states the rule in the respect I have stated and undertaken to above.

SHARP, J., concurs in the views herein expressed.