Chicago, M. & St. P. Ry. Co., v. Metalstaff

• Decision Date: 16 April 1900
• Docket Number: 1,289.
• Citation: 101 F. 769
• Parties: CHICAGO, M. & ST. P. RY. CO. v. METALSTAFF et al.
• Court: U.S. Court of Appeals — Eighth Circuit

101 F. 769

CHICAGO, M. & ST. P. RY. CO. v. METALSTAFF et al.

No. 1,289.

United States Court of Appeals, Eighth Circuit.

April 16, 1900

Frank Hagerman (Willard P. Hall, on the brief), for plaintiff in error.

Hugh C Ward (Herbert S. Hadley and R. D. Brown, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

In this case, which was a suit for personal injuries, after the conclusion of the plaintiff's testimony, the plaintiff in error, who was the defendant below, asked an instruction in the nature of a demurrer to the evidence directing the jury to return a verdict in favor of the defendant railway company. The trial court announced its intention to give the instruction; whereupon, before the jury had retired from the court room or returned a verdict, the plaintiff below through his counsel, asked leave to take a nonsuit. The trial court granted such leave, holding that it had no power to refuse the request. Thereupon the jury was discharged from further consideration of the case, and a judgment was entered that the defendant company go hence, and recover of the plaintiff its costs. The defendant company excepted to the allowance of a nonsuit after the court had granted its instruction, and it brings the case here for review insisting that the trial court should have required the jury to return a verdict, and denied the plaintiff leave to take a nonsuit. The action of the learned judge of the trial court was in strict accordance with a practice which has long obtained in the state of Missouri, from whence this case comes, and has been repeatedly approved by the supreme court of that state. Section 639, Rev.St.Mo. 1899, is as follows:

'Non-Suit, When Taken. The plaintiff shall be allowed to dismiss his suit or take a non-suit at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court, and not afterwards.'

This provision of the Code of Procedure has been in force in the state in its present form since 1865 (Gen. St. Mo. 1865, p 662, Sec. 47). The construction which has been invariably placed upon the statute, so far as the decisions show, is that after a demurrer to the plaintiff's evidence has been sustained, or after a peremptory instruction is given at the close of all the evidence directing the jury to return a verdict for the defendant, the plaintiff may then take a nonsuit before the jury has actually retired to consider of its verdict, and that he may take a nonsuit either with or without leave to subsequently move to set the nonsuit aside. It matters not that leave to take a nonsuit is not sought until after the law of the case has been fully declared by the court, since the plaintiff has the right under the aforesaid statute to take a nonsuit at any time before the jury has actually retired. Wood v. Nortman, 85 Mo. 298, 304; Templeton v. Wolf, 19 Mo. 101; Lawrence v. Shreve, 26 Mo. 492; Mayer v. Old, 51...