Cherniak v. Prudential Insurance Co., of America
| Decision Date | 24 June 1940 |
| Docket Number | 204 |
| Citation | 14 A.2d 334,339 Pa. 73 |
| Parties | Cherniak, by Gdn., Appellant, v. Prudential Insurance Company of America |
| Court | Pennsylvania Supreme Court |
Argued May 13, 1940.
Appeal, No. 204, Jan. T., 1940, from judgment of C.P. No. 3 Phila. Co., June T., 1938, No. 724 (tried in C.P. No. 1), in case of Sylvester Cherniak, by his guardian, David A Flacker, v. The Prudential Insurance Company of America. Judgment affirmed.
Assumpsit. Before PARRY, J.
The opinion of the Supreme Court states the facts.
Request for voluntary nonsuit refused. Verdict directed for defendant and judgment entered thereon. Plaintiff appealed.
Errors assigned, among others, were refusal of motions for leave to enter a voluntary nonsuit, for new trial and for judgment n.o.v.
The judgment is affirmed.
Cecil P. Harvey, for appellant.
Kendall H. Shoyer, with him Frederick J. Shoyer and Andrew C. Dana for appellee.
Before SCHAFFER, C.J., MAXEY, DREW, LINN, STERN, BARNES and PATTERSON, JJ.
This record presents the question whether the plaintiff in an action in assumpsit can take a voluntary nonsuit after the trial judge announces: "I shall have to direct a verdict."
Plaintiff as guardian of the insured brought an action on a policy of life insurance containing provisions for disability benefits in the event that the insured should become totally and permanently disabled while the policy was in full force and effect. At the trial each side introduced evidence, both oral and written, and at its close both sides submitted points for binding instructions. The trial judge requested oral argument on the points and at the close of these arguments made the statement above quoted. Counsel for plaintiff then said: "I will ask for a voluntary non-suit." The court replied: "It is too late." Then he said to the jury: "I direct you to bring in a verdict for the defendant." The jury thereupon returned a verdict for defendant. The matter was heard before the court in banc and it was held that the motion for a voluntary non-suit was properly overruled.
Section 2 of the Act of March 28, 1814, 6 Smith's Laws 208, provides that "whenever on the trial of any cause the jury shall be ready to give in their verdict, the plaintiff shall not be called nor shall he then be permitted to suffer a nonsuit." The Act of April 16, 1903, P.L. 216, provides as follows: "The plaintiff shall not be permitted to suffer a voluntary nonsuit after the jury have agreed upon their verdict, sealed the same and separated, unless such nonsuit shall be specially allowed by the court for cause shown."
The question before us is whether or not plaintiff's motion for a nonsuit was too late. Plaintiff contends that it was not, because the time had not arrived when "the jury shall be ready to give in their verdict." Defendant contends that the motion was too late, because when the trial judge announced his conclusion, the rendering of the verdict by the jury was a mere formal act to carry out the court's determination of the case and that therefore within the meaning of the statute first above quoted, i.e., the jury "was ready to give in their verdict" at the time the motion for a nonsuit was made.
Blackstone defines a trial to be "the examination of the matter of fact in issue": 3 Bl. 330. "A trial is an examination before a competent tribunal, according to the law of the land, of the facts or law or both, put in issue in a cause, for the purpose of determining such issue": Bassett's Cr. Pl. 327.
It is well settled that if the determination of an issue on trial rests on a question of law, the court determines it. In the instant case, each opposing litigant contended that he was entitled to binding instructions, i.e., that the issue was one of law. The trial judge held likewise and announced that the issue had been determined in his mind and that he would "direct a verdict [for the defendant]". Having reached that conclusion, the jury had no further function to perform except to do its formal part in registering the will of the trial judge. Under the law and procedure in Pennsylvania the jurors were then "ready to give in their verdict," for it is the duty of a jury to carry out promptly the directions of the trial judge when, as here, he acts within the scope of his authority. The issue having resolved itself into one of law and not of fact, the jury's function ceases to be deliberative and becomes ministerial. It was held in Pardee v. Orvis, 103 Pa. 451, that a trial judge acted within his rights in refusing to receive a jury's verdict in favor of one party and in sending the jury back with a direction to find for the other party. This court there said: "It would have been more regular to have given the jury binding instructions before sending them out, yet it was not substantial error if he did so instruct them when he discovered they were about to render a verdict contrary to the law of the case." See also Whiting & Co. v. Lake, 91 Pa. 349.
Should jurors refuse to carry out the instructions of a trial judge in a matter in which the court had jurisdiction, they would be guilty of contempt of court. See Cahill v. Chicago, etc., Railroad Co., 74 F. 285, and Albanell v. Cobian, 9 Porto Rico, Fed. 13. There is no doubt that if a jury refused to return a verdict as directed by the trial judge acting within the scope of his authority, the issue having become one of law, the judge could direct his agent, the clerk of the court, to enter the verdict he had directed the recusant jury to return.
It is true that the motion for a voluntary nonsuit was made before the court had formally directed a verdict for the defendant, but the court, having announced that it would "direct a verdict," the formal instruction followed as a matter of course upon the judicial conclusion already reached. We must hold that since it is a jury's duty to return a verdict as directed, the jury are in the eyes of the law "ready to give in their verdict" when they are judicially directed to return a certain verdict. We further decide that when the trial judge declares, as here, that "I shall have to direct a verdict," it would be absurd to hold that in the instant that elapses between the judge's declaration as to what direction he has decided to give and his actual giving of that direction, a plaintiff may take a voluntary nonsuit. This would reduce the trial of cases, in this feature of them at least, to a mere game of verbal "base running."
The appellant cites the case of McLughan v. Bovard, 4 Watts 308, 316, in which Chief Justice GIBSON, speaking for this court, said: "The right of the plaintiff [to take a nonsuit] ceases only when in reply to the usual inquiry of the prothonotary they have officially announced their readiness to the court [to...
To continue reading
Request your trial