Butler v. National Home for Disabled Volunteer Soldiers/Dissent Brown

Mr. Justice BROWN, dissenting.

I am unable to see wherein the court failed to give the defendant a proper opportunity of putting his case before the jury. After the plaintiff had rested its case defendant moved for an instruction that a verdict be returned in his favor, which was denied. The defendant thereupon made a long and elaborate opening to the jury, claiming in substance two defenses: First, that he had duly accounted for the money; and, second, that he was entitled, by way of set-off, to compensation for his services as treasurer of the Home. In support of his first defense he made a statement of facts which, as I understand, were not disputed, but which had no tendency to show that he had duly accounted for the money; and put a witness upon the stand to give testimony, which the court held was not relevant to the issue, and made out no defense. The court thereupon ruled that the statement of facts made in the opening to the jury, assuming them to be true, did not constitute a defense to the action, and suggested that, if the defendant wished to offer any testimony as to matters of fact beyond and outside of the opening, he would hear his statement of what those facts were, and pass upon them; but, if there were nothing beyond that which had already been offered, he would hold that they were irrelevant, and constituted no defense. In reply to this defendant stated that he proposed to show that the moneys charged against him were duly accounted for and paid over, and in reply to a suggestion of the court that he ought to state what substantial facts he expected to prove, which were not recited in his opening, said: 'I do not offer any fact except the fact which I opened to the jury,-that I had accounted for and paid over every dollar of money, including this money.' This the court held, under the facts above set forth, to be irrelcvant, and then stated that the only question for the jury was as to the credibility of the plaintiff's testimony.

It was held by this court in Oscanyan v. Arms Co. that, where it is shown by the opening statement of the plaintiff's counsel that he has no case, the court may direct the jury to find a verdict for the defendant without going into the evidence. I know of no reason why the same rule should not apply to the defendant, who assumes in his opening to state a defense. If the facts stated in such opening do not constitute a defense, the court is at liberty to rule out the evidence, and either direct a verdict for the plaintiff or submit the case to the jury upon the plaintiff's testimony. In this case the defendant offered simply to show that he had accounted for the money. This was clearly not a statement of fact, but of a legal conclusion. It was as if, in an action of ejectment, the defendant should state that he proposed to show that he had the title to the lands in question; or, in an action for breach of contract, that he had not broken the contract. In such case, while the defendant may elect whether to make an opening or not, if he does not make a statement of facts upon which he relies, and such facts are not, in the opinion of the court, relevant, I think the court may properly call upon him to state any further facts that he intends to prove, and, if he declines to make a statement other than he has already made, he may lawfully assume that these constitute his entire defense. The facts stated by the defendant in this case in support of his defense that he had accounted for the money were simply calculated to confuse the jury, without tending in any way to show that he should not be charged with the sum in controversy.

I am wholly unable to see that any injustice was done to the defendant upon this trial, and think the judgment should be affirmed.