The practice of directing a verdict in advance or the introduction of evidence upon opening statement of one or the other party is a dangerous one to be exercised with great caution and not to be encouraged; and even in those jurisdictions recognizing the practice it can be upheld only where it is clear and conclusive that under no circumstances and in no view of testimony that might be adduced can the cause of action or defense prevail after allowing all favorable inferences and interpretations. Rock River Inv. Co. v. Mountain Fin. Corp., 94 Colo. 539, 31 P.2d 914; Bias v. Reed, 169 Cal. 33, 145 P. 516; Stuthman v. United States, 8 Cir., 67 F.2d 521; Anderson v. Missouri St. Life Ins. Co., 6 Cir., 69 F.2d 794; Paul v. Layne Bowler Corp., Cal.App., 64 P.2d 488; Reiman v. Moore, 30 Cal.App.2d 306, 86 P.2d 156; Berry's Sons Co. v. Monark G. O. Co., 8 Cir., 32 F.2d 74, 64 A.L.R. 110; Diglio v. Rosoff Subway Const. Co., 242 App. Div. 643, 272 N.Y.S. 137; Charada Inv. Co. v. Trinity Univ. Ins. Co., supra; Best v. Dist. of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882; Malcolm v. Thomas, 207 App. Div. 230, 201 N.Y.S. 849, affirmed 238 N.Y. 577, 144 N.E. 899; Gross v. Bennington, 52 Wn. 417, 100 P. 846. Hugh A. Locke, Pres. of Birmingham Bar Ass'n, of Birmingham, Richard T. Rives, Pres. of Ala. Bar Ass'n, of Montgomery, and Francis Hare, of Birmingham, for appellees.
" Even more pointed was our statement in Rock River Investment Co. v.Mountain Finance Corp., 94 Colo. 539, 31 P.2d 914 , where we stated that "* * * a motion for a directed verdict, or as here, a directed judgment, based on the opening statement alone should not be granted, unless exceptional circumstances, not present in this record, imperatively require it. * * *" (Emphasis added.) To meet the test of the Rock River, case defendants rely on Union Pacific R.R. Co. v. Larson, 153 Colo. 354, 386 P.2d 583. Such reliance, however, is misplaced.
"Motions for judgment based upon opening statements of counsel should be considered with extreme caution; should be granted only where it is clearly apparent that counsel has included in his opening statement every element possible to come within the scope of his proof; and that having done so, it is manifest that his client is entitled to on relief or judgment in his favor. Rock River Investment Company v. Mountain Finance Corporation, 94 Colo. 539, 31 P.2d 914; Iacino v. Brown, 121 Colo. 450, 453, 217 P.2d 266; Best, Administrator v. District of Columbia, 291 U.S. 411, 54 Sup Ct. 487, 78 L.Ed. 882; Wasmer v. Missouri Pacific Railway Co., 116 Mo. App. 215, 148 S.W. 155."
s verdict the district attorney asked leave to amend his opening statement, and this right being denied him, error likewise was committed. It is well-settled law, we believe, that the purpose of an opening statement is merely to advise the jury of the question and facts involved in the matter before it. Before the court is warranted in terminating a case after opening statement of plaintiff's counsel, it must affirmatively be established that plaintiff has no right, under any circumstances, with all inferences considered in a most favorable light to him, to recover, and, further, after the plaintiff has been given full opportunity to correct, amend or embellish his opening statement subsequent to the defendant's motion to dismiss or direct a verdict. A careful reading of the following decisions will furnish ample support for the position taken by this Court in disapproving of the ruling of the trial court and its disposition of the case: People v. Webber, 149 Calif. 325, 86 Pac. 671; Rock River Investment Co. v. Mountain Finance Corporation, 94 Colo. 539, 31 P.2d 914; Shore v. Building Council, 128 Colo. 424, 263 P.2d 315; United States v. Dietrich, 126 Fed, 676; McGovern v. Hitt, 64 F.2d 156; Stuthman v. United States, 67 F.2d 521; Rose v. United States, 149 F.2d 755; McGuire v. United States, 152 F.2d 577; Best, Administrator v. District of Columbia, 291 U.S. 411; 83 A.L.R 221; 129 A.L.R. 557; 53 Am. Jur., 371, et seq. p. 302; 23 C.J.S. sec. 1085, p. 526, et seq., sec. 1145 (5), p. 670, et seq. The trial court erred in granting defendant's motion for a directed verdict at the conclusion of the prosecuting attorney's opening statement, and its action in so doing is disapproved.
Motions for judgment based upon opening statements of counsel should be considered with extreme caution; should be granted only where it is clearly apparent that counsel has included in his opening statement every element possible to come within the scope of his proof; and that having done so, it is manifest that his client is entitled to no relief or judgment in his favor. Rock River Investment Company v. Mountain Finance Corporation, 94 Colo. 539, 31 P.2d 914; Iacino v. Brown, 121 Colo. 450, 453, 217 P.2d 266; Best Administrator v. District of Columbia, 291 U.S. 411, 54 Sup Ct. 487, 78 L. Ed 882; Wasmer v. Missouri Pacific Railway Co., 116 Mo. App. 215, 148 S.W. 155. [2, 3] From the record in the present proceeding it would appear that confusion resulted during the trial due to inability to properly interpret our opinion announced when the matter was previously before us on the injunction phase.