Carroll v. Grande Ronde Electric Co.

• Decision Date: 02 July 1907
• Parties: CARROLL v. GRANDE RONDE ELECTRIC CO.
• Court: Oregon Supreme Court

90 P. 903

49 Or. 477

CARROLL v. GRANDE RONDE ELECTRIC CO.

Supreme Court of Oregon

July 2, 1907

Appeal from Circuit Court, Union County; William Smith, Judge.

Action by Eliza Carroll, administratrix, against the Grande Ronde Electric Company. Judgment for defendant, and plaintiff appeals. Reversed.

For former report, see 47 Or. 424, 84 P. 389, 6 L.R.A. (N.S.) 290.

On August 28, 1905, Leonard Carroll was killed by an electric wire belonging to defendant company. The administratrix of his estate brought an action to recover damages on account of his death, alleging that it was caused by the negligence of defendant. The defendant answered, denying the allegations of the complaint, and, for a further and separate defense setting up contributory negligence on the part of deceased. The trial was begun before a jury on issues joined, and after the plaintiff had introduced her testimony and rested the defendant moved for a nonsuit, on the ground, among others, that the evidence showed that the death of her intestate was caused by his own negligence. This motion was allowed; the record of such allowance reciting "that the plaintiff's intestate, Leonard Carroll, at the time of the accident complained of, resulting in his death, was guilty of contributory negligence, which was the proximate and direct cause of the injury, resulting in his death." The judgment was subsequently affirmed. Carroll v. Grande Ronde Electric Company, 47 Or. 424, 84 P. 389, 6 L.R.A (N.S.) 290. Thereafter the plaintiff commenced this action on the same cause as is alleged in the action heretofore referred to. The defendant pleads the judgment in the former action as a bar, and, such plea being sustained, judgment was rendered in its favor, and plaintiff appeals.

Gustave Anderson, for appellant.

T.G. Hailey and Samuel White, for respondent.

BEAN C.J. (after stating the facts).

The statute, after providing that a judgment of nonsuit may be given against the plaintiff on motion of the defendant, when upon the trial the plaintiff fails to prove a cause sufficient to be submitted to the jury (section 182, B. & C Comp.), declares that, when such judgment is given, the action is dismissed, but it shall not have the effect to bar another action for the same cause (section 184, B. & C. Comp.). This statute would seem to leave no room for argument as to the effect of an involuntary judgment of nonsuit. But the defendant contends that because, in the case at bar, the entry of the order sustaining the motion contains a statement or finding that the contributory negligence of the plaintiff's intestate was the proximate cause of his death, it is a judgment on the merits, and therefore a bar to another action. The vice of this position lies in the fact that, on a motion for a nonsuit, the court has no jurisdiction or authority to pass upon the merits or adjudicate the rights of the parties, and an attempt to do so is a nullity. A motion by defendant for a nonsuit does not challenge the facts as shown by plaintiff, nor call upon the court to determine the rights of the parties, but only to decide as a matter of law whether upon the evidence of plaintiff, as it now stands, he is entitled to take the opinion of the jury on his case. It is a motion based on some defect or neglect of the plaintiff, and does not involve the merits. The plaintiff, therefore, is, under all the authorities, authorized, if the motion is sustained, to bring his action again. Black on Judg. (2d Ed.) § 699; Freeman on Judg. § 261; Reynolds v. Garner, 66 Barb. (N.Y.) 319; Lindvall v. Woods et al. (C.C.) 47 F. 195; Manhattan Life Insurance Co. v. Broughten, 109 U.S. 121, 3 Sup.Ct. 99, 27 L.Ed. 878; United States v Parker, 120 U.S. 89, 7 Sup.Ct. 454, 30 L.Ed. 601; Gardner v. Michigan Central Railroad Company, 150 U.S....