Darby v. Pidgeon Thomas Iron Co.
| Decision Date | 24 June 1921 |
| Citation | 232 S.W. 75 |
| Parties | DARBY v. PIDGEON THOMAS IRON CO. |
| Court | Tennessee Supreme Court |
Certiorari to Court of Civil Appeals.
Action by H. W. Darby against the Pidgeon Thomas Iron Company. Motion by plaintiff for nonsuit denied, and verdict for defendant directed. On petitions for certiorari by both parties to review action of Court of Civil Appeals, reversing case on the facts and affirming the action of the court in declining to permit a nonsuit. Reversed and remanded for purpose of entering nonsuit.
Wilson & Armstrong, of Memphis, for plaintiff in error.
Ewing, King & King, of Memphis, for defendant in error.
Mr. Darby sued the Iron Company for damages resulting from an automobile collision.
At the conclusion of the plaintiff's evidence a motion for a directed verdict was made by the defendant company. Thereupon plaintiff introduced other evidence, at the close of which the court remarked: Whereupon the plaintiff announced that he would take a nonsuit, to which the court replied: "It is too late now, Brother Hays." To this action of the court the plaintiff duly excepted.
The jury was out of the courtroom during all of the foregoing proceedings.
After declining to permit the plaintiff to take a nonsuit, the court had the jury brought into the courtroom, and thereupon directed them to return a verdict in favor of the defendant, which they did.
Upon appeal, the Court of Civil Appeals reversed the case upon the facts. That court also affirmed the trial court in declining to permit a nonsuit — Justice Wilson dissenting as to the latter holding.
Both parties have filed petitions for certiorari in this court.
If the plaintiff had a right to take a nonsuit, the case will have to be remanded, and in that event it will be unnecessary for us to pass upon the merits of the case.
Section 4689 of Shannon's Code is as follows:
"The plaintiff may, at any time before the jury retires, take a nonsuit or dismiss his action as to any one or more defendants, but if the defendant has pleaded a set-off or counterclaim, he may elect to proceed on such counterclaim in the capacity of a plaintiff."
The plaintiff's right to take an involuntary nonsuit is absolute, and cannot be denied him when applied for within the time prescribed by the statute. Partlow v. Eilliott, Meigs, 547.
In a jury case the plaintiff may take a nonsuit "at any time before the jury retires" — that is, before the jury has begun "to consider of their verdict" — but not thereafter. Railroad v. Sansom, 113 Tenn. 683, 84 S. W. 615; Donaghy v. McCorkle, 118 Tenn. 77, 98 S. W. 1050; Dodd v. Railroad, 120 Tenn. 446, 110 S. W. 588; Cunningham v. Terminal Co., 126 Tenn. 356, 149 S. W. 103, Ann. Cas. 1913E, 1058.
Certainly in this case the jury had not begun to consider of their verdict when the motion for a nonsuit was made. The jury were out of the courtroom and had not been charged by the court. We are of the opinion that the plaintiff's motion for a nonsuit was in season and should have been granted.
Before the passage of the above statute a nonsuit could be taken after the verdict and before it was recorded. Hendrick v. Stewart, 1 Overton, 476; Railroad v. Sansom, supra; Dodd v. Railroad, supra.
In the case of Brackin v. McGannon, 137 Tenn. 207, 192 S. W. 922, a motion for a directed verdict had been made. After the motion had been argued at some length, the court suggested that he was of the opinion that the motion would have to be sustained, but adjourned court until another day of the term, in order to give counsel an opportunity to examine authorities and to further consider the motion. Upon the reconvening of court, and before the court had acted on the motion of defendant, the plaintiffs moved the court to permit them to take a nonsuit, which motion was disallowed by the trial judge, and upon appeal this court said:
"It will be observed that section 4689, supra, provides that plaintiff may, at any time before the jury retires, take a nonsuit or dismiss his action. * * * It is also settled by the decisions of this court that a motion for peremptory instructions, even where made by both parties to the suit, does not operate to withdraw the case from the jury. Such a motion simply has the effect of...
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