Bartel v. Brockerman

306 P.2d 237, 49 Wash. 2d 679, 1957 Wash. LEXIS 438

• Court: Washington Supreme Court
• Decided: January 22, 1957
• Docket: 33804
• Status: Published

Opinions

Finley, J.

This is an action for damages for personal injuries. The significant facts may be summarized as follows:

Shortly after one a. m., on February 15,1952, the plaintiff and two other persons were passengers in an automobile driven by defendant Donald W. Brockerman from a point in Seattle to a roadhouse, known as Frenchy’s, on the outskirts of town. Soon after they arrived at Frenchy’s, the plaintiff wanted to leave. He asked the defendant to transport him to Seattle. Defendant requested him to wait in the car, stating that he (defendant) would be out shortly. Plaintiff returned to the car and fell asleep.

About two hours later, defendant returned to the car. Allegedly, he was in an intoxicated condition. He was accompanied by his two other former passengers and three additional companions. All six persons got into the car, where plaintiff was still asleep. Defendant then proceeded to drive his car in a direction toward the Sand Point naval station. At one point on the return trip, the plaintiff managed to arouse himself sufficiently to warn the defendant of a certain turn in the road; but defendant failed to negotiate the turn, and the car proceeded straight ahead into a ditch. Allegedly, the injuries to the plaintiff for which he seeks damages were caused as a result of the accident.

Defendant’s demurrer to the complaint was overruled. Defendant then answered, alleging contributory negligence, and also alleged that, at the time of the accident, plaintiff was an invited guest, or licensee without payment for such transportation; that, therefore, his action was barred by the host-guest statute. RCW 46.08.080. With the issues thus joined, the matter proceeded to trial.

At the conclusion of plaintiff’s opening statement (which, substantially, was a statement of the facts as related and alleged in his complaint), defendant moved for dismissal of the lawsuit on the theory that plaintiff’s opening statement showed that plaintiff had no cause of action. When the trial judge indicated that he would grant defendant’s motion, plaintiff requested permission to amend his opening statement “to show the things that happened at so-called ‘Frenchy’s’ to terminate the host-guest relationship.” The trial judge refused to permit plaintiff to amend the opening statement, granted defendant’s motion for dismissal, and entered judgment accordingly. The plaintiff appealed.

A trial court may direct judgment of dismissal on the opening statement of counsel for plaintiff. Hamm v. Seattle, 156 Wash. 274, 286 Pac. 657; Carter v. King County, 120 Wash. 536, 208 Pac. 5; and cases cited therein.

The granting of a motion sustaining a demurrer to a complaint produces results not nearly so drastic to a plaintiff. Granting a motion attacking an opening statement results in a dismissal on the merits. The latter procedure is a summary and a final one, and the power of the trial court in this connection should be exercised sparingly, with great caution, and never without a fair opportunity for plaintiff’s counsel to explain and qualify his opening statement. Donnelly v. Paramount Organization, Inc., 109 N. J. L. 57, 160 Atl. 569, 83 A. L. R. 219; McGovern v. Hitt, 62 App. D. C. 33, 64 F. (2d) 156; Home Loan Co. v. Scanlon, 120 N. J. L. 544, 1 A. (2d) 23; 53 Am. Jur. 302, § 371. See, also: 83 A. L. R. 221; 129 A. L. R. 557.

The purpose of the particular procedure is to reasonably expedite litigation; i.e., to save time and effort on the part of the courts and all concerned which might otherwise be wasted in a useless continuation of a non-meritorious lawsuit. Strmich v. Department of Labor & Industries, 31 Wn. (2d) 598,198 P. (2d) 181.

In the instant case, the time necessary for counsel to amend his opening statement would probably have consumed no more than about five minutes. This could have been allowed by the trial judge without any serious violence being done to the underlying purpose of the procedure involved. Although it is beside the point in so far as this appeal is concerned, we will observe in passing that any amendment of the opening statement may or may not have resulted in a different ruling by the trial judge on the motion to dismiss.

We express no opinion one way or the other as to whether the plaintiff has or may be able to surmount the bar of the host-guest statute. However, in view of what we have said hereinbefore, and considering the reasoning of the above-cited authorities, we think that plaintiff’s counsel should have been granted an opportunity to amend his opening statement. The judgment should be reversed, and the case should be remanded for further proceedings in accordance with the views expressed herein. It is so ordered.

Donworth, Rosellini, and Foster, JJ., concur.