(58)

JAMES M. KERR.

Commonwealth's Appeal, 127 Pa. St. 438, 17 Atl. Rep. 1094; Lines' Estate, 155 Pa. St. 378, 26 Atl. Rep. 728; In re De Bourbon's Estate, 211 Pa. St. 623, 61 Atl. Rep. 244.

(59) In re Wharton's Estate, 14 Phila. (Pa.), 279; In re Christien's Estate, 2 Pa. Co. Ct. Rep. 91, 18 W. N. C. 88.

(60) In re Compton's Estate, 10 Pa. Co. Ct. 443; In re King's Estate, 11 Phila. (Pa., 26, 32 Leg. Int. Pa.) 74.

(61) In re Neiman's Estate, 131 Pa. St. 346, 18 Atl. Rep. 900.

The opening statement to the jury cannot be treated as an admission of facts binding upon the client, so as to justify a directed verdict.

It is otherwise where the opening statement shows that the cause of action is contrary to public policy and such as no court would entertain.

This is a suit in forcible detainer for the possession of a lot in Chicago, begun by Charles F. Pietsch, the appellee, by filing his complaint in the municipal court of Chicago against Otto E. Pietsch and Helen Pietsch, appellants. After a jury had been empaneled and sworn the attorney for plaintiff made an opening statement of the case to the jury, to the effect that the defendants, who are husband and wife, had made a mortgage or trust deed on the lot, which was foreclosed; that a sale was made under the decree, from which there was no redemption; that a deed was made in pursuance of the sale, to Charlotte L. Clark; that the property was bought from her by the plaintiff for $3,000 or $4,000, and a deed was made to him; that the defendants were in possession of the premises and re

fused to surrender possession after demand in writing; that the testimony might show there was some talk concerning an agreement that if the defendants would pay to the plaintiff the amount of money that was represented by his purchase of the property, with interest and costs, within a reasonable time, they might have the property and he would deed it to them; that if it should appear there was an agreement the plaintiff was still willing to perform it, but that he was claiming the possession of the property in the suit. An attorney for the defendants then stated to the jury, in substance, that the defendant, Helen Pietsch, being the owner of the premises occupied by the defendants as their home, made a mortgage on the same, which was foreclosed; that about the time when the redemption would expire she went to the plaintiff, her brother-in-law, and wanted him to loan her the amount of the mortgage and permit her to remain there; that he let her have the money as a loan, but said he would take the deed in his own name as security; that he put up something over $4,000; that the matter ran along and she paid him back $1,000 at one time, $150 at another and afterward $200 more; that it ran along for three or four years afterward, and she had another piece of property upon which there was a mortgage of $8,800, and he said he would loan her enough money to take that in. The attorney for the plaintiff objected to the statement relating to other property, and the attorney for the defendants said that he wanted to state to the jury that the plaintiff got his money back by means of a mortgage upon the other piece of property and this one, but the court sustained the objection and an exception was taken to the ruling. Continuing, the attorney stated that the amount was $4,283.98 upon which payments had been made, and that it was agreed that Mrs. Pietsch should remain in possession of the premises and was entitled to remain there. The court then said, "I assume you have stated all of your defense," and the attorney replied, "Yes, sir," whereupon the court instructed the jury to return a verdict finding the defendants guilty of unlawfully withholding possession of the premises and that the right of possession was in the plaintiff. The jury returned a verdict accordingly, and the court, after overruling a motion for a new trial, entered judgment on the verdict. Appellate Court for the First District affirmed the judgment and granted a certificate of importance and an appeal to this court.

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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 máy 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, where the refusal of an instruction that any statement made by the attorney for the plaintiffs in his opening statement, about what the evidence would show, was as binding upon the plaintiffs as if the plaintiffs themselves had made such statement, and as such should be considered by the jury in making their verdict, was endorsed by this court. If the jury could not treat statements of an attorney, in his opening statement, as to what the evidence would show as admissions of fact binding on the client and consider the same in making up their verdict, the same rule must necessarily be applied to the court, and it follows that there was no admission here of the cause of action or that there was no defense to it. Even if it could be said that the attorney admitted that the legal title to the lot was in the plaintiff and the title could not be tried in forcible detainer,, there was no attempt to try the question of title. title was not involved and could not be tried

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or determined, but it did not necessarily follow that the plaintiff was entitled to the possession of the property. The law in England is, that a court cannot take such action as was taken in this case upon an opening statement. In Fletcher v. London and Northwestern Railway Co., 65 L. T. Rep. 605, the judge nonsuited the plaintiff on the ground that the opening statement did not show any cause of action, and it was held that the judge at the trial had no right to non-suit a plaintiff upon his counsel's opening statement without the consent of his counsel. It was pointed out that a suitor might lose his case because his counsel had omitted or misstated something in the opening, and the course adopted in that case was condemned as most dangerous to the rights of litigants. The law is the same in Wisconsin. Fisher v. Fisher, 5 Wis. 472; Hadley v. Western Transit Co., 76 id. 344. The same argument was made to the Wisconsin court that is made here that it would be convenient and conduce to the speedy administration of the law and justice to permit the court to decide the case upon an opening statement; but while that was conceded by the court, the practice was considered too dangerous to the rights of clients to be sanctioned. It is undoubtedly true that the method adopted in this case would be expeditious, and if there were no omissions or defects in the statement, and it was certain that the evidence would turn out in accordance with it, the court might be enabled to do justice; but it would be a still more expeditious method and equally conduce to the ends of justice for the court to call up the attorneys and examine them and decide the case on what they say before calling a jury, whereby much time, labor and expense would be saved. But if parties have a right to a trial by jury of the issues made by the pleadings, the verdict must rest upon evidence or want of evi dence and not upon opening statements.

The decision chiefly relied upon in support of the ruling of the court was made in Oscanvan v. Winchester Repeating Arms Co., 103 U. S. 261, 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. The statement was that the plaintiff sued for commissions on a sale of arms to the Turkish government, of which he was then consul general at the port of New York, and no court would entertain any action upon such a contract. Counsel for appellee is unable to perceive any difference between stating a corrupt cause of action contrary to public policy and good morals and failing to state a good cause of action or defense, but the difference is quite apparent.

If a cause of action is such as no court would entertain, a court is bound to raise the question in the interest of due administration of justice and not for the benefit or in the interest of either party. Whether a claim of illegality is made by the pleadings or not, parties cannot compel a court to adjudicate upon alleged rights growing out of a contract void as against public policy or in violation of public law. Wright v. Cudahy, 168 Ili. 86; Crichfield v. Bermudez Asphalt Paving Co., 174 id. 466.

The judgments of the Appellate Court and the municipal court are reversed and the cause is remanded to the municipal court. Reversed and remanded.

NOTE-Opening Statement as Authorizing Disposition of Case.-There is no great amount of authority on the question presented by the principal case. one reason at least being the exceedingly rare occurrence of counsel doing what would be considered as destroying his own case by such a course. Furthermore, if his statement accords with his petition in showing no right of action this could be taken advantage of in various ways other than resorting to the statement. But the Oscanvan case is very strong authority for its being taken advantage of. We have deemed it of advantage to set forth fully the purport of the cases referred to in the principal case and such others as we have found.

The case of Lusk v. Throop, referred to in the principal case, did dispose, as stated, of an instruction to the effect stated, but the quotations from authority it makes in support of the ruling do not strongly support it. All that they show is that an attorney is not confined to the facts recited in the statement in his introduction of evidence, that is that he may prove other facts not detailed in the statement.

non

In Haley v. Western Transit Co., supra, it was said: "The practice of granting a suit, much less of dismissing the complaint, on the opening statement of the case by counsel for the plaintiff, does not prevail, and never has prevailed, in this state." The court fur

ther said that "We are not willing to depart in this case from an old and salutary rule of practice, even though counsel consent that we may do so." However, the court examined the statement and held the lower court in error in that it fell "short of relieving the defendant from liability."

Here it is seen the Wisconsin court merely frowns upon the practice, while at the same time it passes upon the legal effect of the statement, an useful course in advising the lower court in the conduct of the case remanded. It is not said that it was not within the power of the lower court to act upon a distinct unequivocal admission of a fact which would bar recovery.

The opinion in Oscanvan v. Winchester Repeating Arms Co., supra, by Justice Field, does not proceed on any such distinction as the principal case states, though the non-suit happened to be on a contract void for the reasons stated. The opinion says: "The power of the court to act in the disposition of a trial upon facts con

ceded by counsel is as plain as its power to act upon the evidence produced. The question in either case must be whether the facts upon which it is called to instruct the jury be clearly established. If a doubt exists as to the statement of counsel, the court will withhold its directions, as where the evidence is conflicting, and leave the matter to the determination of the jury." Then the opinion goes on, considering the opening statement precisely like any other admission, made by counsel in the course of the trial, giving as an illustration of opening statement, showing a pardon, upon which the trial would be stopped forthwith, and then instancing merely, as to civil cases, the fact of statement showing contracts void for their immorality. Then the opinion says: "Counsel should be allowed to explain and qualify it (the statement), so far as truth will perigit; 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." Further as showing the ruling made was broad and general, numerous cases are referred to of verdicts being directed after evidence has been received, and directing a verdict after statement is said to be upon a like footing. Certainly it would never be contended there was such limitation in respect to directing verdicts for insufficiency of evidence.

The English case of Fletcher v. London & Northwestern Ry. Co., supra, shows three opinions and their purport indicates, that the course taken by the trial court in non-suiting the plaintiff on the opening statement of his counsel, in a personal injuries case, was deemed very extraordinary. One of the judges says: "I was startled by the supposition, that a suitor might lose his case because his counsel has omitted or misstated something in his opening, which would induce a jury to find a verdict for the plaintiff. That would be a startling result in an English court of justice. This case ought to be tried." This judge thought there was nothing before the court so as to make its disposition a trial. The other two judges concur squarely in the proposition that the judge has no right to nonsuit plaintiff on his opening statement unless his counsel consents. Under this view it would seem that counsel could accept a non-suit thus based so as to obtain a ruling in an appellate court on its correctness. The difference between the federal court and the English court seems to be that the former holds the court has power to act upon the statement independently of counsel's consent while the latter holds it cannot. But does it not seem a little strange, that this question should have appeared to be entirely novel in English courts and that not a single authority is referred to by the English Court of Appeals in the opinions handed down in the Fletcher case?

Lindley v. Railroad, 47 Kan. 432, 28 Pac. 201, relies on the Oscanvan case for the proposition that "the court may dispose of the case upon the statement made by the plaintiff in opening his ase. Such a statement is a part of the procedure of the trial. The code provides that, when the jury is sworn, the plaintiff or party who has the burden of proof may proceed to state his case to the jury and the evidence by which he expects to sustain it. If the statements or admissions then made are such as to

absolutely preclude a recovery, it would be absolutely useless to consume further time or to prolong the trial."

In this case the bill of exceptions did not preserve the statement and the court considered there was nothing left but to affirm the judgment. The facts show that after plaintiff made his statement he offered in evidence a deposition, which was objected to on the ground that the petition did not state facts sufficient to constitute a cause of action and because the statement showed contributory negligence. The objection was sustained and the jury discharged.

It seems to us the court could have denied the motion on the latter ground, because defendant waived his right to rely on the statement, by not moving before anything else is done. For the same reason the ruling of Illinois Supreme Court in Lusk v. Throop was right whether a statement would, if taken immediate advantage thereof, authorize a non-suit or not. The defendant would not have the right to proceed along in the trial without objection and then go back to the beginning so as to save himself as to something, the importance of which he had waived, as well as its binding force. It is perceived here that the Kansas court speaks of admissions absolutely precluding recovery, not of the statement being merely defective.

A late case on this subject that of Sullivan v. Williamson, 21 Okl. 844. 98 Pac. 1001, deals, as it seems to us, merely with a defective statement and not where distinct admissions adverse to interest are made.

This case shows that "counsel for plaintiff made his opening statement to the court and jury, and thereupon counsel for defendants moved the court to render judgment in favor of the defendants upon the pleadings and opening statement of counsel, upon the ground that the facts stated in the pleadings and opening statement did not entitle the plaintiff to any relief." This motion was after argument of counsel taken under advisement, the case continued until the next term and then sustained. The bill of exceptions did not contain the opening statement. The Oklahoma court held that the petition having stated a good cause of action it was error to grant nonsuit or render judgment in defendant's favor.

The opinion is brief, citing Wisconsin case, supra, and Stewart v. Hamilton, 3 Rob. (23 N. Y. Super.) 672, and expressing the belief that "none of the code states, so far as we are aware, have adopted such practice." It concedes that the statement may be made a part of the record, if put in the bill of exceptions, but says: "It is rare indeed that the opening statement is ever preserved for the purpose of predicating error upon it." This, however, does not seem to us important, because, if it is not preserved, it is waived as being an admission and in no other way can it be claimed to be evidence. But we rather think, that despite its not being carried up in this case, the Oklahoma court was correct. The lower court did not profess to act merely in virtue of its power to take the statement as an admission of facts precluding a recovery, but upon the statement not showing sufficient facts for a recovery. Then the motion was double barrelled, too, on a petition that was sufficient, it was very defective. The cases do not seem

to go to the extent, where they non-suit on a statement, that its mere lack of fullness authorizes this course, but there must be a distinct ad- mission of facts,-in the way it may be of specific assertion of their existence-which precludes recovery. Thus in line with the cases we have referred to, supra, are Emmerson v. Weeks. 58 Cal. 382; Stewart v. Hamilton, 3 Rob. (26 N. Y. Super.) 672, which say in effect non-suit should not be granted on an opening statement unless it shows on its face that no case can be made out or there is an admission fatal to the case. Stewart v. Hamilton, cited by the Oklahoma court merely speaks of a failure in the statement to recite facts sufficient for recovery.

The majority of the few American cases found on this subject, seem to hold in favor of the right of the court to act upon a clear unambiguous admission fatal to recovery when that appears in a statement, but it is not bound to do so. It cannot look at a statement precisely as at a petition and dismiss for failure to state a case good against a demurrer. In the Oklahoma case the motion was like a demurrer to a petition and therefore the case below seems to have been properly reversed.

The caution to be used by the trial court before acting adversely on an opening statement is set forth with great particularity in the Oscanvan case. Justice Field saying counsel for plaintiff repeated over and again the facts in such plain and unambiguous terms that there could be no doubt on the subject. Therefore we conclude that mere lapse or inadvertence will never result disastrously to counsel, but why a distinct, square, unequivocal admission in a statement, if taken advantage of immediately, should not have as much effect as any other admission by counsel in the course of trial we do not see.

Melville Weston Fuller, Chief Justice of the Supreme Court of the United States, was born in Augusta, Me., February 11, 1833, and died at his summer home, "Mainstay," Sorrento, Me., July 4, 1910. He graduated from Bowdoin College in 1853, began the practice of law in 1855 in Augusta, forming a partnership with his uncle, Benjamin G. Fuller, and was also associated with his uncle in publishing a daily democratic newspaper, "The Age," filling the post of editor. In 1856 he was elected to the common council of Augusta, became its president and performed the duties of city solicitor. Before that year had ended he had resigned from his political office and moved to Chicago, Ill. He was twice married, his first wife being Calesto O. Reynolds, his second wife, Mary Ellen Coolbaugh. Eight daughters and a son were the issue of his married life.

Mr. Chief Justice Fuller was always known among his friends as a high-minded and scholarly gentleman, possessing a pleasing personality, being endowed with distinguished intellectual abilities. He was a brilliant orator and an able advocate. Like his immediate predecessor, Chief Justice Waite, he was com

he

when paratively unknown to the nation was appointed Chief Justice of the great court of last resort, to which his active and dominating influence has added luster and force; however, among the leaders of the bench and bar, especially of Chicago, he was recognized as an able lawyer, industrious, thorough, forceful and upright. Since his elevation to high judicial position it is remembered that he took part in many important cases of national interest. His knowledge of the law was general; he was an authority on ecclesiastical law, a master of commercial jurisprudence and the rules of real property and was a brilliant and logical constructionist of the constitution. By way of evidence of his success as a lawyer it might be mentioned that his name appears as counsel in more than a hundred volumes of the Illinois reports and several of the United States reports.

But it is as Chief Justice of the Federal Supreme Court that the venerable jurist is known to current thought and will be remembered by posterity. His tenure is third in length of service of the eight Chief Justices presiding in the Supreme Court during a century and third of its existence. Associate Justice Harlan, mighty in intellect and hale and hearty physically, alone remains of the personnel comprising the court on Chief Justice Fuller's accession. Justices have come and gone since he first donned the ermine and entered upon the arduous duties of his position. indefatigable labor, his loyal and efficient service, his accurate and discriminating mind, his courageous and righteous judgments, his clear cut and convincing decisions, rendered during a period of twenty-two years, constitute his greatest monument, permanently link his name with those of Marshall and Taney, peers of American jurisprudence, and, by the way, his only rivals in point of service.

His

His sudden death, on the nation's birthday, due to heart disease, came as a great shock to the country, and it seems unfortunate that he was summoned by death at a time when So many subjects of paramount importance were about to be decided by that court. He has gone to his last resting place sincerely mourned and honored by the people.

As he said at the centenary of the Supreme Court:

"Judges will be appointed and will pass. One generation rapidly succeeds another. But, whoever comes and whoever goes, the court remains, keeping alive, through many centuries ye shall not see, the light that burns with a constant radiance upon the high altar of American constitutional justice.

INDIANA BAR ASSOCIATION MEETING The Fourth Annual Meeting of the Indiana State Bar Association was held on July 6th and 7th, at the Indianapolis Country Club. Mr. Frederick Jessup Stimpson, of Boston, Mass., delivered the annual address, his subject being, "The Test of Legality in Combinations." The program also included the President's address, by Mr. John T. Dye, and a very timely paper Crude Legislation, by Mr. Geo. H. Clifford, of Tipton. 'Papers were also read by Mr. Geo. A. Cunningham, of Evansville, on The Everyday Lawyer; Conrad Wolf, of Kokomo, on Indiana Practice; Chas. W. Smith. Indianapolis, on and Lawyers. this occasion

on

of

Current Criticisms of Courts Among other speeches made

on

were those of Governor Thos. R. Marshall. on The Old-Fashioned Lawyer. and of the Hon. Francis E. Baker, of the U. S. Circuit Court of Appeals, on Relation of State and Federal Jurisdiction. The two days' meeting was concluded by a banquet at the Dennison Hotel. The meeting was the largest and best which has ever been held by the Indiana Bar Association.

BOOK REVIEWS.

WARE'S FROM COURT TO COURT 4th EDITION.

The well-known pamphlet under the above title by Mr. Eugene F. Ware, of the Kansas City Bar, sets forth the method of taking cases from a State Court to the United States Supreme Court.

The copyright of this work dates from 1906, and a new edition seems to appear almost, if not quite annually, but it amply justifies each appearance, it running from cover only 61 pages and bringing decision for the "educated practicing lawyer" down to date.

It is an exceedingly handy document for one to have on his desk, especially as the motion to dismiss or affirm is so very frequently fatal to cases which attempt the route to which this pamphlet refers, the percent thus falling by the wayside being stated by Mr. Ware to be as high as eighty-two.

We therefore see that every case attempted to be carried up to the federal supreme court is both attended with fear and trembling on the part of counsel for plaintiff in error, but his adversary is sure to look for an opening for the deadly motion above referred to. This pamphlet is printed Kansas City, 1910. Kan., by the author.

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