Ambrose v. Detroit Edison Co.

• Decision Date: 01 April 1968
• Docket Number: No. 9,9
• Citation: 380 Mich. 445,157 N.W.2d 232
• Parties: Joseph S. AMBROSE, Plaintiff-Appellant, v. The DETROIT EDISON COMPANY, a New York Corporation, Walker L. Cisler, Arthur S. Griswold, Charles J. Ghesquire, Anthony G. Maihofer, Lyndle R. Martin, Josephine H. Sullivan, George A. Porter, Edward R. Moore, W. F. Wetmore, Harold C. Reasoner, and A. Percival Fugill, jointly and severally, Defendants-Appellees.
• Court: Michigan Supreme Court

Page 232

157 N.W.2d 232

380 Mich. 445

Joseph S. AMBROSE, Plaintiff-Appellant, v. The DETROIT EDISON COMPANY, a New York Corporation, Walker L. Cisler, Arthur S. Griswold, Charles J. Ghesquire, Anthony G. Maihofer, Lyndle R. Martin, Josephine H. Sullivan, George A. Porter, Edward R. Moore, W. F. Wetmore, Harold C Reasoner, and A. Percival Fugill, jointly and severally Defendants-Appellees.

No. 9.

Supreme Court of Michigan.

April 1, 1968.

Renfrew, Edberg & Baldwin, Royal Oak, for plaintiff-appellant.

Harvey A. Fischer, Edward B. Harrison, Leon R. Jones, Fischer, Sprague, Franklin & Ford, Detroit, for defendants-appellees.

Before the Entire Bench.

BRENNAN, Justice.

The sole question in this appeal is the propriety of granting a defendants' motion to dismiss at the conclusion of the plaintiff's opening statement. The decision below rested on the trial court's finding that the opening statement consisted of conclusions and not facts and failed to state a cause of action. The action of the trial judge in granting dismissal was affirmed by the appellate court, 5 Mich.App. 328, 146 N.W.2d 698, and this Court granted leave because the subject of the role of an opening statement is of general interest.

Plaintiff maintains that it is not necessary to state all of the elements of a cause of action in an opening statement. Plaintiff contends that the function of the opening statement is to inform the jury of what they are about to hear, rather than to give notice of the defendant of what will be proven.

GCR 1963, 507.1, provides:

'Before the introduction of any evidence, the attorney for the party who is to commence the evidence shall make a full and fair statement of his case and the facts he intends to prove. Immediately, thereafter, or immediately prior to the introduction of evidence by the adverse party, the attorney for the adverse party shall make a like statement. The opening statements may be waived with the consent of the court and opposing counsel.'

We hold that this court rule requires a plaintiff to state a cause of action by reference to the facts he intends to prove. In its Opinion, the Court of Appeals stated, at pp. 332, 333, 146 N.W.2d at p. 700:

'It is an old and honored precedent in Michigan that under proper circumstances, the court may dismiss a case at the close of plaintiff's opening statement to the jury, if the pleadings and opening statement fail to state a cause of action. Spicer v. Bonker (1881), 45 Mich. 630, 8 N.W. 518. The actions of the circuit court were commented thereon by Cooley, J., as follows (p. 633, 8 N.W. p. 519):

"But if he observes due care, the circuit judge commits no error in taking the course that was adopted here. The plaintiff's opening is in the nature of an offer of proofs, and the circuit judge directs a verdict for the defendant because, assuming the proofs to have been received, they fail to make a case. The trial is thereby shortened, and no wrong is done to any one." (Emphasis supplied.)

It is, therefore, within the discretion of the trial judge to decide whether the jury has heard a full and fair statement of the case in the plaintiff's opening argument. Although such a dismissal based on these grounds does not deprive the plaintiff of his day in court, Geib v. Graham (1942), 300 Mich. 534, 535, 2 N.W.2d 493, trial courts should be slow to exercise this power. As stated in Haynes v. Maybury (1911), 166 Mich. 498, 503, 131 N.W. 1110, 1111, 'before directing a verdict upon an opening statement, the counsel should be informed as to the points in which he has failed to state a case.'

The practice followed by the trial judge in this case is to be commended. There can be no doubt of his proper exercise of judicial discretion. Upon a reading of the full transcript, it is evident that the court did everthing in its power to allow the plaintiff to present a proper claim based on facts supporting his legal proposition. On December 3, 1965, the trial court, upon denying without prejudice defendants' motion for summary judgment, placed the plaintiff on notice as to the conclusionary nature of his pleadings and cautioned him that he would have to recite in his opening statement those facts which he intended to prove and which, if true, would support his conclusions. The court warned the plaintiff that an inadequate opening statement would result in dismissal. Again, at the trial, the court exhorted plaintiff seven times to amend his opening statement and supply the missing factual allegations. The court supplied a transcript of the opening statement to the plaintiff to show this deficiency and even court did everything in its power to allow to cure it. Yet no effort was made to amend or to expand the opening statement.

As to the inadequacy of the opening statement, we are in agreement with the Court of Appeals. Nowhere does there appear any recital of facts as to the time, place and nature of the agreement or conspiracy alleged. When the complaint does not state a cause of action, or states a cause only in terms of legal conclusions, and the opening statement does not supply the missing factual allegations, it is no abuse of judicial discretion to grant a motion to dismiss.

Judgment affirmed, costs to defendants.

KELLY and O'HARA, JJ., concurred with BRENNAN, J.

SOURIS, Justice.

There is a misapprehension about the nature of this case, expressed in the Court of Appeals' opinion (5 Mich.App. 328, 146 N.W.2d 698) and implied in Mr. Justice Brennan's opinion on this appeal, which should be noted at the outset. Dismissal of plaintiff's cause at conclusion of his opening statement was not based upon inadequacy of his pleadings, as asserted by defendants in their motion to dismiss; rather, dismissal was ordered solely because the circuit judge concluded that plaintiff's opening statement was legally insufficient to entitle him to a jury trial of his claim that the individual defendants had formed and participated in a conspiracy and that they were acting within the scope of their authority as employees of, or with the authority of, the corporate defendant. The legal adequacy of plaintiff's pleadings had been tested by motion before the case was called for trial and had been sustained by the circuit judge. Furthermore, immediately before and after plaintiff's opening statement defendants renewed their attack upon his pleadings by a series of motions. In denying these motions, on the very day he dismissed plaintiff's cause for legal insufficiency of plaintiff's opening statement, the circuit judge ruled, twice, that plaintiff properly had pleaded a single conspiracy. Defendants did not proceed by cross-appeal from these rulings and, therefore, are not entitled to urge now that plaintiff's pleadings were deficient.

This appeal, therefore, properly involves only the adequacy of plaintiff's opening statement to take him to a jury decision of his pleaded cause. As I read my Brother Brennan's opinion, he concludes that no opening statement is adequate unless it recites all of the facts intended to be proved which are essential to the statement of plaintiff's cause of action. He reaches this result, as I read his opinion, by equating the requirement of GCR 1963, 507.1 that plaintiff 'make a full and fair statement of his case and the facts he intends to prove' with his own conclusion that this 'requires a plaintiff to state a cause of action by reference to the facts he intends to prove' (supra, at p. 234). I cannot agree that opening statements, in this state, are subject to such hypertechnical insistence upon legal form equal to that we apply in measuring the adequacy of a pleading.

The rule contains two separate requirements. The first is that the attorney shall make a full and fair 'statement of his case'. The second is that he shall make a full and fair statement of 'the facts he intends to prove'. I cannot read into this rule a requirement that virtually would compel an attorney to read to a jury the pleaded allegations of his cause of action or their detailed equivalent.

An attorney's primary audience at this stage, while it includes opposing counsel and the judge, normally is a jury of the vicinage. His purpose is to paint with a broad brush and with quick, simple strokes a word outline of his case, not to belabor the pleaded obvious with meticulous care for the fatal distinction between, for example 'the' proximate cause and 'a' proximate cause. In short, the rule's first requirement simply means that an attorney's opening statement should describe, for the jury's benefit primarily, the very general nature of his client's case. To be accomplished effectively before a jury, it must be done in simple language a jury likely will understand, and that is not the language appropriate for use when the technical requirements of stating a cause of action must be met.

The rule's second requirement, that the attorney make a full and fair statement of the facts he intends to prove, simply cannot mean that he Must bore his jurors with a minutely complete recital of, for example, the 'facts as to the time, place and nature of the agreement or conspiracy alleged' (supra, at p. 235). The time for evidentiary facts is later, during the evidentiary part of the trial and not through the lips of the attorney. In the opening statement, on the other hand, there is time and necessity only for the ultimate facts proposed to be proved, the fact that the parties conspired not that they assembled on a specified date, at a specified place, for a specified purpose.

It is true he must offer to prove, to use the analogy suggested by Justice Cooley in Spicer v. Bonker (1881), 45 Mich. 630, 8 N.W. 518, and quoted by Justice Brennan, all of the essential factual elements of his pleaded cause, but certainly not in evidentiary detail. Thus, in Jones v. Hicks (1960), 358 Mich. 474, 479, 100 N.W.2d 243, also cited by Justice Brennan, our majority upheld a dismissal on motion on...