Bobillot v. Clackamas County

• Decision Date: 15 April 1947
• Citation: 179 P.2d 545,181 Or. 30
• Parties: BOBILLOT <I>v.</I> CLACKAMAS COUNTY
• Court: Oregon Supreme Court

181 Or. 30

179 P.2d 545

BOBILLOTv.

CLACKAMAS COUNTY

Supreme Court of Oregon.

Argued February 19, 1947.

Reversed April 15, 1947.

Dismissal and nonsuit — Statutes — Construction

1. Statutes governing voluntary nonsuits, if they are in derogation of the common law, must be strictly construed and ordinarily they will not be extended to include cases not within their express terms.

Dismissal and nonsuit — Discretion of trial court

2. Under statute, allowance of voluntary nonsuit after introduction of evidence had been concluded and defendant had moved for directed verdict was discretionary with trial court.

Dismissal and nonsuit — Discretion of trial court

3. Where plaintiff suing county for injuries sustained when county highway bridge collapsed, failed to plead and prove freedom from contributory negligence and lack of knowledge of defective condition of bridge, his motion for voluntary nonsuit was properly granted, though introduction of evidence had been concluded and county had moved for a directed verdict, and subsequent action of court in entering directed verdict and judgment for county on theory that court lacked authority to grant the nonsuit was improper.

                  See 17 Am. Jur. 64, et seq.; time for taking nonsuit, notes 89
                A.L.R. 13; 126 A.L.R. 284; 27 C.J.S., Dismissal and Nonsuit, § 20
                

Appeal from Circuit Court, Washington County.

R. FRANK PETERS, Judge.

Larry Landgraver, of Portland (with Leo Levenson, of Portland, on brief), for appellant.

Leonard I. Lindas, Deputy District Attorney for Clackamas County, of Oregon City (with Stanley J. Mitchell, District Attorney for Clackamas County, of Oregon City, on brief), for respondent.

Before ROSSMAN, Chief Justice, and LUSK, BELT, BAILEY, HAY and WINSLOW, Justices.

REVERSED AND REMANDED.

BAILEY, J.

This action was brought by Marcel Bobillot against Clackamas county to recover damages for injuries suffered by him when the county highway bridge across Clear creek in Clackamas county collapsed, causing the truck in which he was a passenger to be overturned and precipitated into Clear creek.

The complaint charges the defendant with the following acts of negligence:

"That the defendant at this time was careless, reckless and negligent in the maintenance and operation of the said bridge in that they allowed the said bridge and county road to remain in an unsafe condition and in a condition unfit for safe vehicular traffic and travel across the bridge in that the timbers, uprights and supports of the bridge were rotten, defective, weakened and were wholly unsafe to support the weight of the vehicles traveling over the same and defendant well knew, or in the exercise of reasonable care should have known, of such dangerous condition and defendant failed to repair said bridge or to erect supports or to replace the rotted timber so as to make the bridge safe for vehicular traffic * * *."

At the conclusion of the introduction of evidence, defendant moved for a directed verdict on the ground that plaintiff had failed to allege and prove: (1) That he was lawfully on the bridge; (2) that he was not guilty of contributory negligence; and (3) that he was without knowledge of the defective or dangerous character of the bridge.

After the motion had been discussed at some length by counsel for the respective parties, the court stated:

"Our Supreme Court, in this case of Leesi v. Yamhill County [136 Or. 295, 298 P. 911.] * * * held that it was necessary to plead and to prove five distinct elements in a case of this kind. We are interested here with only two of them, as three of them are pleaded and two are not.

"The complaint does not plead that the plaintiff was without knowledge of the defect or danger, nor does he plead that he was free from contributory negligence. * * * therefore, the complaint being defective in those two particulars, and the testimony being defective, especially with respect to the fact that he did not have knowledge of the defects of the bridge, this Court is without any alternative in the matter except to grant the motion."

Then, according to the record, there was "further argument and discussion between the court and counsel" and the following:

"The Court: Well, the Supreme Court so held in this case and the 143 case [Gerber v. Multnomah County, 143 Or. 452, 22 P. (2d) 1103]. Of course, I am frank to tell you that if you wanted to move for a nonsuit so as to protect yourself and start over again, the Court would be inclined to grant you that privilege.

"Mr. Landgraver: All right, I will.

"Mr. Leonard Lindas: I think we have gone too far, if the Court please. We have put in a defense. He could ask for an involuntary nonsuit after his case is in, but after our case is in I don't see that he has a right to ask for an involuntary nonsuit.

"The Court: I will grant a nonsuit, but not a directed verdict."

On motion of plaintiff a judgment of voluntary nonsuit was thereupon entered. Thereafter and on or about October 22, 1946, the court, on motion of defendant, made and entered findings of fact, conclusions of law and judgment in defendant's favor. From this judgment plaintiff has appealed.

The circuit judge, at the time of signing the judgment in favor of defendant, rendered the following written opinion:

"The right to grant a judgment of nonsuit is governed by section 6-201, O.C.L.A., as amended by Chapter 313, Oregon Laws 1941.

"The Court had no authority to grant a nonsuit to the plaintiff after the taking of the testimony had been concluded and the defendant had moved for a directed verdict.

"The case made by the plaintiff being insufficient to submit to the jury and the defendant being entitled to a directed verdict it was the duty of the Court to grant the motion.

"This is the law as stated by our Supreme Court in the case of Treadgold vs. Willard, 81 Oregon 658-669, the Court states: `When a cause is finally submitted, if it appears from the evidence received that one of the parties is entitled, as a matter of law, to a particular finding of fact, it is incumbent upon the Court when so requested to direct a verdict to that effect.'

"Under the provisions of Chapter 149, Oregon Laws 1945, it is the duty of the Court to correct the error which it made in granting judgment of nonsuit and at this time to enter findings and a directed verdict.

"The Court has therefore signed and filed the findings and order for a directed verdict which were submitted by the defendant."

The principal question presented on this appeal is whether the circuit court had authority to grant a judgment of nonsuit under the circumstances existing at the time plaintiff's motion therefor was made. Plaintiff argues that the court had such authority and in support of his contention relies on § 6-201, O.C.L.A. as amended by chapter 313, Oregon Laws 1941, which in so far as material here reads as follows:

"A judgment of nonsuit may be given against the plaintiff, as provided in this chapter:

"1. On motion of the plaintiff, at any time before the issues have been joined and the trial of the facts has commenced unless a counterclaim has been pleaded as a defense; but if the issues have been joined and the trial of the facts has commenced the allowance of the motion shall be subject to the sound discretion of the court; * * *"

Subdivision 1 of § 6-201, prior to the above amendment, read as follows:

"On motion of the plaintiff, at any time before trial, unless a counter-claim has been pleaded as a defense".

Under the common law, prior to the Statute of 2 Henry IV, chapter 8, a plaintiff was entitled to a voluntary nonsuit even after verdict. After the enactment of that statute, a plaintiff could become nonsuited as of right at any time before verdict, and he could, in the discretion of the court, be nonsuited after the finding of a special verdict, and before judgment. 17 Am. Jur., Dismissal and Discontinuance, § 14, p. 64; Annotations, 89 A.L.R. 17; Hutchings v. Royal Bakery, 60 Or. 48, 118 P. 185.

1. Most jurisdiction in this country have statutes governing the granting of voluntary nonsuits and dismissals. These statutes generally limit or modify but do not abolish the common-law doctrine and, since they are in derogation of the common law, must be strictly construed. Ordinarily they will not be extended to include cases not within their express terms. 27 C.J.S., Dismissal and Nonsuit, § 8, p. 161; 17 Am. Jur., § 23, p. 70; State v. Lupton, 163 Md. 180, 189, 161 A. 393.

The wording of these statutes varies. If plaintiff desires to take a nonsuit as a matter of right, he must do so, depending on the jurisdiction, "before trial", "before final argument to the jury or court upon the facts", "before the final submission of the case", or "before the jury retires", etc. Annotations, 126 A.L.R. 292, et seq., 89 A.L.R. 50, et seq.; Hutchings v. Royal Bakery, supra. Under the Oregon law plaintiff is entitled to take a voluntary nonsuit as a matter of right "before the issues have been joined and the trial of the facts has commenced" if no counterclaim has been pleaded, but after trial of the facts has commenced, the allowance of a voluntary nonsuit is subject to the sound discretion of the court.

We have been unable to find any statute containing provisions similar to those added to § 6-201, supra, by the 1941 amendment. The statutes in most of the states provide under what conditions the plaintiff is entitled to a voluntary nonsuit as a matter of right, without reference to the discretionary power of the court. In many of those states the courts have held that they have the discretionary power to allow voluntary nonsuits in instances where the plaintiff would not be entitled thereto as a matter of right. Hutchings v. Royal Bakery, supra; 27 C.J.S. § 19, p. 173.

In Chicago, Rock Island, & Pacific Railway Company v. Annie Reynolds, Administratrix, 157 Okla. 268, 12 P. (2d) 208, 89 A.L.R. 5, the real controversy involved was "whether or not, after the ...