Shaffer v. Victoria Station, Inc.

Andersen, J.

(dissenting)—Of concern to me is that at the time this jury case was called for trial, the attorney for the injured plaintiff walked into the judge's chambers with a case—and then walked out without a case, a decision *823having been made therein based on colloquy between the court and counsel.

The rules as to when a trial court may prevent a case from going to the jury are basic:

While an action may ordinarily be dismissed upon motion at any stage of the proceeding when it is ascertained that the court has no jurisdiction, or at any time before verdict when the complaint fails to state facts sufficient to constitute a cause of action, and a motion for directed verdict on the opening statement of counsel may ordinarily be entertained at the conclusion of that statement, motions to take the case from the jury upon the ground of the failure or the insufficiency of the proof ordinarily cannot be made until the conclusion of the plaintiffs testimony in chief.

(Footnotes omitted.) 75 Am. Jur. 2d Trial § 428 (1974). See Mayflower Air-Conditioners, Inc. v. West Coast Heating Supply, Inc., 54 Wn.2d 211, 339 P.2d 89 (1959).

The dismissal of the plaintiff's case in chambers violated these principles and for that reason I dissent from the majority opinion which affirms the trial court. The case should not have been terminated for failure or insufficiency of the plaintiff's proof at the very outset of the trial in this fashion.

The trial court unquestionably had jurisdiction of the parties and of the action.

The plaintiff's complaint adequately pleaded a case, therefore, the defendant was not entitled to a judgment on the pleadings. CR 12(c).

While it is true that plaintiff's counsel did in chambers offer to stipulate to certain facts and issues, that offer was not accepted by opposing counsel so the facts may not be regarded as having been stipulated. CR 2A.

Similarly, the case is not an agreed case, since the parties did not submit an agreed statement of pll of the ultimate facts on which the controversy depends, leaving to the trial court and this court only the function of deciding questions of law. RCW 4.52.010.

*824No trial was held; hence, there is no testimony or evidence before us. Neither were the depositions that were taken in this case ever made a part of the record nor affidavits presented, since no motion for summary judgment was brought. CR 56.

With no testimony of any kind in the record, I, at least, am unable to determine from what is before us whether the jury might not have been able to find facts, or inferences fairly deducible therefrom, that under one of the legal theories pleaded would have entitled the plaintiff's case to go to the jury.

For these reasons, the record in this case does not provide a satisfactory factual basis on which to decide the substantive questions of law presented by the parties. As a building cannot be constructed on quicksand, I do not believe that a judicial decision involving factual issues should be based on the colloquy between the court and plaintiff's counsel in this case which took place in chambers.

Even if the statement of plaintiff's counsel were to be considered as equivalent to an opening statement made in open court, the trial court's power to dismiss on that basis is subject to strict limitations and conditions. In this case, such a motion could have been granted only where the statement of plaintiff's counsel affirmatively, or by admission, established the existence of facts which would have precluded the plaintiff from recovering, Hallum v. Mullins, 16 Wn. App. 511, 516, 557 P.2d 864 (1976), and that was not the situation here.

Notwithstanding that the parties have invited us to rule on the substantive legal issues, I would decline to do so for the reasons noted. As a court, we have a duty to notice sua sponte rule violations of the kind here involved and to reverse if need be in order to enforce compliance with the rules of court. Bitzan v. Parisi, 88 Wn.2d 116, 126, 558 P.2d 775 (1977).

*825I would reverse and remand the case. It should be tried on the complaint as filed,2 or otherwise decided in accordance with the Superior Court Civil Rules.

Petition for rehearing denied February 28, 1978.

Review granted by Supreme Court July 21, 1978.

During the in-chambers argument and colloquy referred to, plaintiffs counsel withdrew the negligence aspects of his complaint from the trial court's consideration. The judgment of dismissal provided that such withdrawal was pursuant to CR 41 and without prejudice. A reversal herein should therefore return the entire case to the status it occupied before the conference with the trial judge. See 5 Am. Jur. 2d Appeal and Error § 955 (1962).