AYERS v. AMATUCCI

AYERS v. AMATUCCI
1949 OK 116
207 P.2d 788
201 Okla. 598
Case Number: 33596
Decided: 05/31/1949
Supreme Court of Oklahoma

Syllabus

¶0 PLEADING - TRIAL - Rule as to when petition deemed good as against defendant's motion for judgment on opening statement of counsel.
After the pleadings are made up and issues joined, if the petition is good against a demurrer, it is good against a motion for judgment in favor of defendant upon opening statement of counsel, unless it appears that such statement contravenes the material allegations of the petition, whether by conceding errors in the petition or failure of the proof to sustain the petition.

Appeal from District Court, Tulsa County; Horace D. Ballaine, Judge.

Action by James W. Ayers against Emil Amatucci and George Le Riche, partners, doing business under the firm name and style of Ideal Motor Company, for injuries.

From judgment for defendant upon opening statement of plaintiff's counsel, plaintiff appeals. Reversed and remanded.

Hughey Baker, of Tulsa, for plaintiff in error.

Hudson, Hudson & Wheaton, of Tulsa, for defendants in error.

JOHNSON, J.

¶1 This was an action brought by the plaintiff in error, plaintiff below, against the defendants in error, defendants below, for damages for personal injuries.

¶2 Defendants demurred to plaintiff's petition and the same was overruled by the court, and thereafter issues were joined, and the case came on for trial.

¶3 After a jury had been empaneled, counsel for the plaintiff stated his case to the jury, the facts he expected to prove and adopted all of the allegations of plaintiff's petition as a part of his opening statement, at the close of which defendants moved the court for judgment upon the pleadings and opening statement of counsel, which motion was sustained. The petition stated a good cause of action.

¶4 In McLaughlin v. Lagers et al., 99 Okla. 155, 225 P. 920, this court held:

"After the pleadings are made up and issues joined . . . . if the petition is good against a demurrer, it is good against a motion for judgment in favor of defendant upon opening statement of counsel, unless it appears that such statement contravenes the material allegations of the petition, whether by conceding errors in the petition or failure of the proof to sustain the petition."

¶5 We do not think the opening statement in this case was in contravention of the petition, and for that reason the trial court erred in sustaining the motion of the defendant for judgment on the pleadings and the opening statement of plaintiff's counsel.

¶6 For the reason stated, the judgment of the trial court is reversed, and the cause remanded.

¶7 DAVISON, C.J., and GIBSON, LUTTRELL, HALLEY, and O'NEAL, JJ., concur.