Juhasz v. Barton

• Decision Date: 25 March 1941
• Citation: 1 So.2d 476,146 Fla. 484
• Court: Florida Supreme Court
• Parties: JUHASZ v. BARTON.

1 So.2d 476

146 Fla. 484

JUHASZ v. BARTON.

Florida Supreme Court

March 25, 1941

Rehearing Denied April 24, 1941.

En Banc.

Evan Evans, of Jacksonville, for plaintiff in error.

Austin Miller, of Jacksonville, for defendant in error.

BUFORD, Justice.

Writ of error is to review judgment on verdict rendered in favor of defendant in an action wherein the right of recovery comes within the purview of Chapter 18033, Acts of 1937, known as the Guest Statute.

Plaintiff poses two questions which we are asked to determine on the record here viz.:

'1. In the trial of a civil action does the attorney for the plaintiff have the right to make an opening statement to the jury?

'2. Where the evidence overwhelmingly preponderates in favor of the plaintiff, and the verdict for the defendant is supported by the testimony of only one witness whose testimony is a self evident issue of fabrication, is it not the duty of the trial Court to grant plaintiff's Motion for New Trial?'

The record shows that after the jury had been selected, empaneled and sworn counsel for plaintiff started to address the jury to delineate the nature of plaintiff's case. The court interrupted counsel, saying, in effect that counsel might read the pleadings to the jury but that counsel would not be allowed to make what is generally known as an opening statement. Then the following occurred:

'Mr. Evans: I would like to move the Court for permission to make an opening statement.

'The Court: I can't do it, because that is not our custom, and we have reasons why we think it better that the pleadings should be read to the jury, as they make up the issue which they are to try. Of course, that does not mean you have to read every word, but read the pertinent parts.

'Mr. Evans Your Honor, note my exception. 'The Court: Yes sir, but I am sorry to have to interrupt you, but that is the rule and I have never departed from it, and there are certain reasons why I think it is wise.

'Thereupon plaintiff's attorney read the declaration to the jury and thereafter defendant read to the jury the Pleas.'

There is much which might be said, pro and con, as to the efficacy of the practice of counsel making opening statements of the theory of the case from the standpoint of respective parties and outlining to the jury what each expects to prove. The exercise of such privilege may result in a clarifying of the issues so as to aid the jury in arriving at an intelligent and correct verdict, or it may result in confusing, misleading or prejudicing the jury so as to lead it away from the truth and into an unrighteous conclusion. It may well be that any unscrupulous attorney (if there be such) or one who must choose between suffering the pangs of conscience because of an infraction of the canons of professional ethics, and suffering the pangs of hunger, the realization of his family being in want, and the hounding of creditors may yield to the temptation to overstep the bounds of propriety where one who by fortuitous circumstances is faced with no such problem may experience no such temptation.

Professor Crandall discusses the question here involved in Section 202, page 289 of his Florida Common Law Practice, the reading of which we commend.

We have neither general rule of Court nor statute in this State touching opening statements, but the trend of decisions in this State and in other jurisdictions indicate that this is a matter which rests in the sound discretion of the trial court and the right to pursue such course must be determined upon a fair consideration of the circumstances of the case under consideration. See Allen v. Hooper, 126 Fla. 458, 171 So. 513; Lord v. Austin, Mo. App., 39 S.W.2d 575; De Nardi v. Palanca, 120 Cal.App. 371, 8 P.2d 220; F. L. Dittmeier Real Estate Co. v. Southern Surety Co., Mo.Sup., 289 S.W. 877; Inter-Ocean Casualty Co. v. Wilkins, 96 Ind.App. 231, 182 N.E. 252; Puterbaugh's Common Law, Pleading & Practice, Chapter 39, Section 1137, page 1309. On the whole the trial court in this regard should be liberally exercised.

So it is that when the denial of the privilege of making an opening statement is the basis of an assignment of error the question to be determined is whether or not the trial court abused his sound judicial discretion in that regard to the prejudice of the complaining party.

The rule appears to be that:

"The opening statements should not go into great detail as to the facts in the case, but merely state the general conclusions from these facts as they will develop at the trial. It should be the primary purpose of the opening statement to provide a pattern for the jury into which they may fit the facts as they unfold at the trial.' Schweitzer's Trial Manual for Negligence Actions, 569.

"The true office and function of an opening statement is, as we have seen, briefly to outliine what the party expects to prove in support of his cause of action or defense.' An Automobile Accident Suit (Anderson), page 276.'

In the instant case, as heretofore shown, counsel for plaintiff was allowed to read the declaration to the jury. The declaration in this case sets out in detail the alleged facts upon which plaintiff relied for recovery and, therefore, it portrayed the theory of plaintiff's case and gave the jury to understand the ultimate facts which the plaintiff proposed to prove. A properly limited opening statement could not have contained other matter. Argumentative and imaginative creations have no proper place in...