Daniel v. Laclede Gas Co., 38893
| Decision Date | 07 November 1978 |
| Docket Number | No. 38893,38893 |
| Citation | 575 S.W.2d 226 |
| Parties | Irene DANIEL, Plaintiff-Respondent, v. LACLEDE GAS COMPANY, Defendant-Appellant. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Paul B. Hunker, Jr., Morris E. Stokes, Silver & Suffian, Marvin Q. Silver, St. Louis, for defendant-appellant.
Cox, Moffitt & Cox, Dallas W. Cox, Jr., St. Louis, for plaintiff-respondent.
Laclede Gas Company, the defendant in the trial court, appeals from the order of the trial court sustaining the motion for new trial filed by the plaintiff, Irene Daniel, following an adverse jury verdict. 1 In sustaining the plaintiff's motion for new trial, the trial court did so on four stated grounds; however, inasmuch as one of the grounds for granting the new trial was the trial court's failure to grant plaintiff's motion for a voluntary non-suit, made during her case and prior to the submission of the cause to the jury, we find it unnecessary to consider whether there was any error in sustaining the motion on those other grounds, and we affirm.
This case is a suit for damages against the Laclede Gas Company arising out of a fire which damaged the plaintiff's mobile home in which the defendant converted a water heater from propane to natural gas and in so doing redrilled the orifice on the water heater to enlarge it so that a greater flow of gas would result. 2 On the same day this was accomplished, December 4, 1974, a fire occurred destroying the mobile home and all of the plaintiff's possessions.
During the trial, and during cross-examination of plaintiff's expert witness, John Edward Stuerwald, plaintiff's counsel requested that plaintiff be allowed to take a voluntary non-suit prior to closing plaintiff's case. The trial court, after some discussion, denied plaintiff's motion for a voluntary non-suit.
Rule 67.01 provides that after the introduction of evidence is commenced, a plaintiff may dismiss his action without prejudice only by leave of court or by written consent of the adverse party. Although this right is not absolute, it should be freely granted and not lightly abridged. Stubblefield v. Seals, 485 S.W.2d 126, 130(6) (Mo.App.1972); Wilkins v. Cash Register Service Company, 518 S.W.2d 736, 743(1, 2) (Mo.App.1975). "The right to voluntarily dismiss without prejudice before submission should be qualified to the extent that if there be a finding that the defendant will lose some right of defense, or the plaintiff will gain some undue advantage, leave to dismiss should not be granted." Kerr v. Grand Foundries, Inc., 451 S.W.2d 26, 29(3) (Mo.1970). ". . . (T)hat plaintiff would bring another action against defendant is not such an injury as would justify the court in denying plaintiff's request to take a voluntary dismissal." Stubblefield v. Seals, supra, 485 S.W.2d 126, l.c. 130; Smith v. Taylor, 289 S.W.2d 134, 140(8) (Mo.App.1956). Defendant has not demonstrated, either...
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