DeWane v. Hansow

Mb. Justice Habkeb delivered the opinion oe the Court. This suit was commenced before a justice of the peace by appellant, to recover for the board, care and nursing of ap: pellee’s minor son, furnished him while confined at appellant’s house with a broken leg. Appellant recovered before the justice, but appellee appealed to the Circuit Court. Upon the trial in the Circuit Court counsel for appellant, in his opening statement to the jury, stated in substance that the defendant’s minor son, who had been in the employ of the plaintiff, had his leg broken by the falling of a horse which he was riding, making it necessary that he should have immediate care and attention; that he was taken to plaintiff’s house, where he was boarded and nursed until his recovery; that on the day following the injury, plaintiff requested the defendant, who had consented to his minor son’s employment by the plaintiff, to come and care for his son, which the defendant refused to do, stating that the county would have to care for him; that he then told the defendant that if the boy continued to remain at his house he should care for him and nurse him and look to the defendant for payment,of the expense of doing so; that he, on other occasions afterward, while the boy was still under treatment at his house, requested the defendant to take him away and care for him, which defendant refused to do, and that this suit was to recover for the reasonable expenses for boarding, waiting upon and nursing of such son until the time of his recovery. Appellant was introduced as a witness, and after stating how the accident occurred, said that he acquainted appellee with the matter the next morning and requested him to take his son away and care for him, which appellee refused to do, saying that he would haye nothing to do with his son; that he cared for him twenty days and nursed him; but before his testimony was concluded, appellee moved to exclude .all the testimony which had been given. The court sustained the motion, remarking that he would hear no more of it, that the case had been stated and the motion should be sustained. Appellant then offered to produce further testi-. mony, which was refused. The court then directed a verdict by the jury for the defendant. • The court evidently was of the opinion that the plaintiff was bound by the opening statement made by his counsel to the jury, and that he did not state' such a case as entitled him to a recovery against the defendant. Such a view puts the opening statement in an appeal from a justice of the peace upon the same footing of a declaration in an original common law case, and it is contended by appellee that if the statement does not show a cause of action, the court should direct a verdict for the defendant. We are not inclined to take this view of the law. While the office- of a jury statement is to enlighten the jury upon the issues involved, so as to prepare their minds for the evidence to be heard, and the attorney making it should confine himself to the proposed proofs and make it sufficiently full for their understanding of -the case, the plaintiff is not confined to the facts recited in the statement. He would be entitled to introduce evidence and prove a case if no opening statement at all had been made. But the statement made in this case does show a cause of action. The parent is bound for necessaries furnished his minor child, if the parent refuses to furnish them when the child is living apart from the parent with his consent. McMillan v. Lee, 78 Ill, 443; Clark v. Gotts, 1 App. 454; Porter v. Powell, 79 Iowa, 151. Reversed and remanded.