Frisell v. Surry

Decision Date13 December 1917
Docket Number14305.
Citation169 P. 317,99 Wash. 201
PartiesFRISELL v. SURRY et al.
CourtWashington Supreme Court

Department 1. Appeal from Superior Court, King County; A. W. Frater Judge.

Action by Charles Frisell against F. H. Surry and others. From a judgment dismissing the action on his opening statement plaintiff appeals. Reversed.

Saunders & Nelson, of Seattle, for appellant.

Kerr &amp McCord, of Seattle, for respondents.

WEBSTER J.

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 impaneling 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.

The measure of the court's right to withdraw a case from the jury and direct judgment for the defendant upon the opening statement of counsel for the plaintiff has been clearly defined by this court. In Redding v. Puget Sound Iron & Steel Works, 36 Wash. 644, 79 P. 308, Judge Rudkin, with his usual clarity of diction and brevity of expression said:

'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 P. 1004. See, also, James v. Pearson, 64 Wash. 263, 116 P. 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...

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9 cases
  • Wilkey v. State ex rel. Smith, 6 Div. 603.
    • United States
    • Alabama Supreme Court
    • December 21, 1939
    ...325, 62 P.2d 722; Caylor v. Casto et al., 137 Kan. 816, 22 P.2d 417; Carter v. King County, 120 Wash. 536, 208 P. 5, 6; Frisell v. Surry, 99 Wash. 201, 169 P. 317; Schripps v. Reilly, 35 Mich. 371, 388, 389, Am.Rep. 575; 1 Thompson on Trials, § 267. The procedure followed by the trial court......
  • Strmich v. Department of Labor and Industries
    • United States
    • Washington Supreme Court
    • October 8, 1948
    ... ... no cause of action. Redding v. Puget Sound Iron & Steel ... Works, 36 Wash. 642, 79 P. 308; Frisell v ... Surry, 99 Wash. 201, 169 P. 317; Carter v. King ... County, [31 Wn.2d 601] 120 Wash. 536, 208 P. 5; ... Charada Inv. Co. v ... ...
  • Frisell v. Surry
    • United States
    • Washington Supreme Court
    • July 24, 1919
  • State v. Gallagher
    • United States
    • Washington Court of Appeals
    • April 19, 1976
    ...is expressly made, leaving only an isolated and determinative issue of law, the court may resolve that issue. See Frisell v. Surry, 99 Wash. 201, 169 P. 317 (1917); Strmich v. Department of Labor & Indus., 31 Wash.2d 598, 198 P.2d 181 (1948); Scott v. Rainbow Ambulance Serv., Inc., supra; H......
  • Request a trial to view additional results

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