Majority
Headnote
A non-suit should not be granted on the ground that the plaintiff’s counsel has not stated in Ms opening sufficient facts to constitute a cause of action.I think it is not good practice to non-suit upon the plaintiff’s opening address to the jury, and for the reason alone that he has failed to state to them sufficient facts to constitute a cause of action, although I am aware that such a practice has obtained in some of our courts. In his opening, the plaintiff’s counsel may properly and usually does, state such facts only as he desires to impress upon the minds of the jurors. To hold him in his address to the exactness and certainty of a pleading, would, in many cases, be to impose upon him a duty which it would be exceedingly inconvenient if not impossible for him to perform orally. Indeed, I see no reason why he may not state to the jury, or refrain from stating just so much of the case as his judgment dictates.
I do not mean to say that a fatal admission made by the plaintiff’s counsel in his opening, may not entitle the defendant thereupon, to a judgment dismissing the complaint,