BARRETT V. VIRGINIAN RY. CO.
Decision Date | 09 June 1919 |
Citation | 250 U. S. 473 |
Court | U.S. Supreme Court |
CERTIORARI TO TUE CIRCUIT COURT OF APPEALS
FOR THE FOURTH CIRCUIT
The right to take a voluntary nonsuit is substantial, and when and how it may be asserted are questions relating directly to practice and mode of proceeding within the intendment of the Conformity Act. P. 476.
Under the law of Virginia, in the absence of a demurrer to the evidence and joinder therein, the plaintiff may take a nonsuit at any time before the retirement of the jury. P. 477.
A motion by defendant for a directed verdict at the conclusion of the testimony, when made in a federal court in Virginia, is not equivalent to a demurrer to the evidence, and the making of such a motion and its impending allowance do not place the plaintiff's right to take a nonsuit at the sound discretion of the court. Id.
244 F. 397 reversed.
The case is stated in the opinion.
Claiming under the Federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65), petitioner sued the Virginian Railway Company in the United States District Court, Western District of Virginia, for damages on account of personal injuries suffered by him July 27, 1915.
At conclusion of the testimony, the railway company moved for a directed verdict; after consideration, the trial judge read to counsel an opinion giving reasons and announced his purpose to grant the motion.
Judgment thereon was affirmed by the circuit court of appeals. 244 F. 397. Petitioner there urged that the trial court erred (1) in directing a verdict for the defendant, and (2) in denying the plaintiff's request to take a voluntary nonsuit. Both claims were denied, and are renewed here.
We think refusal to permit the requested nonsuit was error, and for that reason the judgment below must be reversed. This makes it unnecessary to consider the other point.
The Act of June 1, 1872 -- the Conformity Act -- provides:
"The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceedings existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding."
Construing the statute in Nudd v. Burrows, (1875) 91 U. S. 426, 441-442 (23 L.ed. 286), this Court said:
See also Indianapolis & St. Louis R. Co. v. Horst, 93 U. S. 291, 300.
Bowditch v. Boston, 101 U. S. 16, 18; Pleasants v. Fant, 22 Wall. 116, 89 U. S. 122; Oscanyan v. Arms Co., 103 U. S. 261, 265; Randall v. Baltimore & Ohio R. Co., 109 U. S. 478, 482; District of Columbia v. Moulton, 182 U. S. 576, 582; Hepner v. United States, 213 U. S. 103, 113. And this rule is not subject to modification by state statutes or Constitutions. Indianapolis & St. Louis R. Co. v. Horst, supra; St. Louis, Iron Mt. & Southern Ry. v. Vickers, 122 U. S. 360, 363; Lincoln v. Power, 151 U. S. 436, 442.
At the common law as generally understood and applied, a nonsuit could be taken freely at any time before verdict, if not indeed before judgment. Confiscation Cases, 7 Wall. 454, 74 U. S. 457; Derick v. Taylor, 171 Mass. 444, 445; Bac.Abr. Nonsuit (D). And see Pleasants v. Fant, supra, 89 U. S. 122. The right is substantial. When and how it may be asserted we think are questions relating directly to practice and mode of proceeding within intendment of the Conformity Act.
Section 3387 Virginia Code (1904) provides: "A party shall not be allowed to suffer a nonsuit, unless he do so before the jury retire from the bar." Prior to this provision, a plaintiff there had the absolute right to take a
voluntary nonsuit at any time before verdict. Harrison v. Clemens, 112 Va. 371, 373. Chapter 27, Va.Acts 1912, directs: "That in no action tried before a jury shall the trial judge give to the jury a peremptory instruction directing what verdict the jury shall render." And c. 42, idem, provides:
"In all suits or motions hereafter, when the evidence is concluded before the court and jury, the party tendering the demurrer to evidence shall state in writing specifically the grounds of demurrer relied on, and the demurree shall...
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