McGovern v. Hitt, 5621.
| Decision Date | 06 March 1933 |
| Docket Number | No. 5621.,5621. |
| Citation | 62 App. DC 33,64 F.2d 156 |
| Parties | McGOVERN v. HITT et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
P. Michael Cook, of Washington, D. C., for appellant.
Walter C. Clephane, J. Wilmer Latimer, and Gilbert L. Hall, all of Washington, D. C., for appellees.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
In this case the trial court directed a verdict for the defendants on plaintiff's opening statement, which is the ground of this appeal.
Ordinarily, the opening statement of counsel is intended merely to advise the jury with regard to the questions involved and to inform them of the facts on which the plaintiff relies to recover, and generally the court would not be justified in stopping the trial unless it was clearly apparent that in no circumstances could the plaintiff recover in the action. The course which the court took in the present case is permissible only where the case of the plaintiff is stated fully and precisely, with opportunity to counsel, after the motion is made, to correct or add to his statement. If it then appears that the plaintiff is not entitled to recover, the motion to direct a verdict may be granted. The Supreme Court has announced this to be the rule in the case of Oscanyan v. Winchester Co., 103 U. S. 261, 26 L. Ed. 539. There Mr. Justice Field, speaking for the court, said (page 264 of 103 U. S.): "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."
In the present case the plaintiff sued to recover the reasonable value of his services as an expert consultant in handling a case before the Interstate Commerce Commission. The defendants averred that the services were rendered pursuant to a specific written contract. The plaintiff admitted entering into the written contract but averred that the defendants willfully breached one of its material provisions, requiring that the plaintiff's name should appear on a second and final brief filed in the case. The contract provided, first of all, compensation at the rate of $300 a month for plaintiff's services, and a contingent fee of $2,000 additional compensation in the event of the successful conclusion of the litigation. Paragraph 3 is as follows: (Plaintiff) "Agrees and obligates himself to prepare and write a first draft of the brief for account of the aforesaid short and weak lines represented by party of the first part, and to aid in its completion as far as may be desired." Paragraph 4: "Party of second part plaintiff to appear of record and on brief."
In the statement to the jury counsel for plaintiff said that the action grew out of the refusal of defendants to place plaintiff's name on a second brief filed with the Interstate Commerce Commission. It was not contended that plaintiff had not prepared the first brief as he agreed to do or that his name did not appear on that brief, but it is averred that after the main brief is filed and considered, the practice before the Commission is that the examiner advises counsel of the sort of report he intends to make, and it is allowable in such circumstances to file exceptions to the proposed report; that in this case the defendant Hitt filed exceptions to the proposed report of the examiner and plaintiff's name was not included as of counsel on this paper. In the opening statement, counsel for plaintiff said: "That was the breach which we are alleging, that his name was left off that second brief, the exceptions brief, filed with the Interstate Commerce Commission."
The court then asked counsel whether the plaintiff had done any work in the preparation of that brief, and counsel replied that plaintiff had consulted with and advised the defendant Hitt as to the preparation of the exceptions brief and that much of it "was lifted bodily from the original brief." The court then asked if pla...
To continue reading
Request your trial
-
Alexander v. Jennings
...324. Though by leave of the court counsel for the plaintiffs could have been permitted to amend his opening statement, McGovern v. Hitt, 62 App.D.C. 33, 64 F.2d 156, certiorari denied, 290 U.S. 637, 54 S.Ct. 54, 78 L.Ed. 554, Jones v. Hicks, 358 Mich. 474, 100 N.W.2d 243, Scammon v. Page, 1......
-
Hudson v. Ashley
...pleadings and the oral proffers made to the court. E. g., Niosi v. Aiello, D.C.Mun.App., 69 A.2d 57, 59, 61 (1949); McGovern v. Hitt, 62 App.D.C. 33, 34, 64 F.2d 156, 157, cert. denied, 290 U.S. 637, 54 S.Ct. 54, 78 L.Ed. 554 (1933); see also Jones v. Baltimore & Ohio Railroad, 5 Mackey (16......
-
Hanna v. Fletcher
...invitee is injured when the landlord gratuitously agrees to repair, does so, and is negligent in so doing. 1 See McGovern v. Hitt, 62 App.D.C. 33, 64 F.2d 156 (D.C.Cir. 1933), certiorari denied 290 U.S. 637, 54 S.Ct. 54, 78 L. Ed. 554 (1933). 2 See, e. g., Ford Motor Co. v. Wolber, 32 F.2d ......
-
Rose v. United States
...Corporation, 1939, 70 App.D.C. 277, 105 F.2d 800, 803; Stuthman v. United States, 8 Cir., 1933, 67 F.2d 521, 523; McGovern v. Hitt, 1933, 62 App.D.C. 33, 64 F.2d 156, 157. The point is made that the evidence adduced at the trial was not sufficient to justify the verdicts of guilty. It is ap......