Wilkey v. State ex rel. Smith, 6 Div. 603.

• Decision Date: 21 December 1939
• Docket Number: 6 Div. 603.
• Citation: 192 So. 588,238 Ala. 595
• Parties: WILKEY ET AL. v. STATE EX REL. SMITH.
• Court: Alabama Supreme Court

192 So. 588

238 Ala. 595

WILKEY ET AL. v. STATE EX REL. SMITH.

6 Div. 603.

Supreme Court of Alabama

December 21, 1939

Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.

Proceeding in nature of quo warranto by the State of Alabama, on the relation of Jim C. Smith, and Jim C. Smith, against J. L Wilkey and J. L. Wilkey, Adjuster, Incorporated. From a judgment for plaintiffs, defendants appeal.

Reversed and remanded.

GARDNER J., dissenting.

Lange Simpson, Brantley & Robinson, James A. Simpson, and Herbert J. Ward, all of Birmingham, for appellants.

Hugh A Locke, Pres. of Birmingham Bar Ass'n, of Birmingham, Richard T. Rives, Pres. of Ala. Bar Ass'n, of Montgomery, and Francis Hare, of Birmingham, for appellees.

THOMAS Justice.

The several assignments of error challenge the action of the trial court in giving to the opening statement of appellants' counsel, defining the issues of fact to the jury, evidential effect authorizing the general affirmative charge against appellants.

Appellants thus state the question: A jury having been impaneled and sworn and the issue of fact formed by the pleadings, the court was without authority to conclude the case without the introduction of the evidence (and to do this against defendants' objection) merely on counsel's opening statement to the jury.

Such statement is merely to advise the jury concerning the issues of facts involved. Constitution of Alabama, § 11; Code of 1923, §§ 8593, 8594, 8595 and 9498; Temple v. Cotton Transfer Company, 126 Neb. 287, 253 N.W. 349; Pietsch v. Pietsch, 245 Ill. 454, 92 N.E. 325, 29 L.R.A., N.S., 218; Fisher v. Fisher, 5 Wis. 472; Haley v. Western Transit Co., 76 Wis. 344, 45 N.W. 16; Smith v. Commonwealth Ins. Co., 49 Wis. 322, 5 N.W. 804; Cohen v. Hurwitz, Sup., 127 N.Y.S. 341; Fletcher v. London & N.W. R. Co., 1892, 1 Q.B. 122.

The opening statement of counsel, under Alabama practice, is not evidence and does not necessarily contain all or even a major part of defendant's case. It is merely intended to indicate the issues of fact to the jury. A defendant is at liberty to present evidence of facts which were not mentioned or foreshadowed in defendant's opening statement to the jury. This is the well-considered announcement in leading cases. Brashear v. Rabenstein, 71 Kan. 455, 80 P. 950; Martin Emerich Outfitting Co. v. Siegel C. & Co., 108 Ill.App. 364; DeWane v. Hansow, 56 Ill.App. 575; Fillingham v. St. Louis Transit Co., 102 Mo.App. 573, 575, 77 S.W. 314; Charada Inv. Co. v. Trinity Universal Ins. Co., 188 Wash. 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, 24 Am.Rep. 575; 1 Thompson on Trials, § 267.

The procedure followed by the trial court presents a case of first impression in this court, in the trial court's directing a verdict upon the alleged admissions of defendants' counsel in his opening statement to the jury.

A search of our cases brings to light only one decision involving the effect of opening statements to the jury as admissions of fact. The pertinent decision was in Southern Railway Co. v. McCants, 26 Ala. App. 442, 163 So. 363, wherein the Court of Appeals stated that weight should be given to opening statements of counsel. The decision involved an appeal from judgment rendered upon the evidence after a trial including the testimony of witnesses for the parties. The question on appeal was whether the verdict was against the weight of evidence in the light of the testimony and the opening statement of counsel. The court held that an opening statement, in itself, was not sufficient to support a directed verdict, and that such statement was not conclusive. Certiorari was denied on said theory, 231 Ala. 22, 163 So. 365.

The question for decision is illustrated by our cases hereinafter noted.

In Loeb v. Webster, 213 Ala. 99, 104 So. 25, to unduly limit the opening statement of counsel was held to be error. In Birmingham Baptist Hospital v. Branton, 218 Ala. 464, 118 So. 741, it was held not to be improper to state the facts or to remark that the mother would suffer by baby's death. In Brown v. Leek, 221 Ala. 319, 128 So. 608, it was held that immaterial and prejudicial matter may not be introduced in opening statement of counsel, that the time, manner and character of said statement was within the discretion of the trial court. In Atlanta Life Ins. Co. v. Canady, 225 Ala. 377, 143 So. 561, it was held that opening statements may disclose the basis of the suit and the source of title. In Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837, it was held that counsel may, in good faith, show the theory on which the proceedings were had and state the facts of the res gestae.

In Atlanta Life Ins. Co. v. Ash, 228 Ala. 184, 188, 153 So. 261, 264, this Court said: "The right of counsel to make a preliminary or opening statement to the jury is fully recognized in this jurisdiction, but this right is not unlimited. The purpose and function of such a statement is to advise the jury of the facts relied upon to make up his right of action or defense, 'to define the nature of the questions involved, and advise them of the issues to be tried so as to enable them to understand the case to be tried.' Counsel, of course, may, in a reasonable way, outline what he expects to prove, unless it is manifest that such proof would be incompetent, or the offer or statement is made for the purpose of improperly influencing the jury. * * *"

The English rule is stated as follows:

"I am of the opinion that the learned judge struck too soon. I will state the proposition in its broadest form. In my opinion a judge has no right, without the consent of the plaintiff's counsel, to non-suit the plaintiff upon his counsel's opening statement of the facts. The opening of counsel may be incorrect in consequence of his having had wrong instructions. Owing to some accident, even with the greatest care, the evidence of the witnesses when they are called may differ from that which has been opened by counsel. It is for that very reason that a right of reply is given to the plaintiff's counsel, and in recent times a right to sum up the evidence has been given to the plaintiff's counsel, and the defendant's respectively, after his witnesses have been called. The experience of judges and of practitioners shews that the evidence often turns out to be some-what different from that which appears in the instructions given to counsel. Therefore I state this proposition in its full extent--a judge has no right to non-suit a plaintiff upon his counsel's opening without the consent of the counsel. That is what the learned judge has done in the present case. There was no assent on the part of the plaintiff's counsel. On the contrary, the plaintiff's counsel insisted upon his right to have the plaintiff's witnesses called, but, notwithstanding this, the learned judge persisted in non-suiting the plaintiff on his counsel's opening. I think he was wrong in so doing, and the case must go down for trial." Fletcher v. London and North Western Railway Company, 1892, 1 Q.B. 122.

The Supreme Court of Illinois in the case of Pietsch v. Pietsch, 245 Ill. 454, 92 N.E. 325, 326, 29 L.R.A.,N.S., 218, reversed the trial court for directing a verdict on the opening statement of defendant's counsel, and held:

"When the jury had been sworn to try the issues and render a verdict according to the evidence, it was the privilege of the attorney for each party, if he saw fit to do so, to make an opening statement of what he expected to prove. Such a statement is not intended to take the place of a declaration, complaint, or other pleading, either as a statement of a legal cause of action or a legal defense, but is intended to advise the jury concerning the questions of fact involved, so as to prepare their minds for the evidence to be heard. How full it shall be made, within reasonable limits, is left to the discretion of the attorney, but the only purpose is to give the jury an idea of the nature of the action and defense. To relate the testimony at length will not be tolerated. 1 Thompson on Trials, 267. A party is entitled to introduce evidence and prove a cause of action or to defend against evidence tending to sustain a cause of action if no statement at all is made, and is not confined in the introduction of evidence to the statement made in the opening, if one is made. The opening statement may be wrong as to some facts, and there is no requirement that it shall give all the facts of the case, which may turn out to be different from the statement. The argument that a court may direct a verdict, not upon the evidence or the want of evidence but upon the statement of an attorney, rests mainly upon the power of an attorney to make admissions binding upon his client and to waive his rights. There is no dispute about the authority of an attorney to admit facts on the trial and waive the necessity of introducing evidence as to such facts, but the authorities cited relate to such admissions in the trial of the case. That the opening statement to the jury cannot be treated as an admission of facts binding upon the client was decided in Lusk v. Throop, 189 Ill. 127, 59 N.E. 529.

"The decision chiefly relied upon in support of the ruling of the court was made in Oscanyan v. Winchester Repeating Arms Co., 103 U.S. 261, 26 L.Ed. 539, but that was a case where the statement disclosed a contract that was void, as being corrupt in itself and prohibited by morality and public policy. [ [Italics supplied.]"

In the case of Temple v. Cotton Transfer Co. et al., 126 Neb. 287, 253 N.W. 349, 350, the court well...