Dobson v. Crews, E-202

• Court: Florida District Court of Appeals
• Writing for the Court: MASON; CARROLL, DONALD K., ACTING C. J., AND RAWLS
• Citation: Dobson v. Crews, 164 So.2d 252 (Fla. App. 1964)
• Decision Date: 07 April 1964
• Docket Number: No. E-202,E-202
• Parties: Walter DOBSON, Appellant, v. Gary Lamar CREWS, a minor by Harold Edward Crews, as his next friend, and Harold Edward Crews, individually, Appellees.

Page 252

164 So.2d 252

Walter DOBSON, Appellant, v. Gary Lamar CREWS, a minor by Harold Edward Crews, as his next friend, and Harold Edward Crews, individually, Appellees.

No. E-202.

District Court of Appeal of Florida, First District.

April 7, 1964.

Certified to Supreme Court of Florida May 11, 1964

James C. Rinaman, Jr., of Marks, Gray, Yates, Conroy & Gibbs, Jacksonville, for appellant.

Evans, Stewart & Proctor, Jacksonville, for appellees.

MASON, Associate Judge.

This is an appeal from a final judgment of nonsuit and for costs entered by the Circuit Court in and for Baker County, taken on March 11, 1963. Appellees brought a tort action against appellant and a codefendant seeking damages for personal injuries alleged to have been caused as a result of the negligence of appellant and his codefendant. The issues were raised by the pleadings, and extensive discovery procedures, including interrogatories and depositions, were taken between the parties over a year's period. The case came on for trial with counsel for all parties present, a jury was impaneled and sworn to try the issues of fact raised by the pleadings, and immediately thereafter appellees moved for a nonsuit. Thereupon appellant Dobson moved the court to enter judgment with prejudice against appellees. The motion was denied with the trial judge stating that he recognized the taking of the nonsuit by appellees-plaintiffs and declaring that he would enter a judgment for appropriate costs against them. He discharged the jury by announcing to it that a nonsuit had been taken. Thereafter appellant Dobson filed praecipe for the taxing of costs in the total amount of Three Hundred Fifty-five Dollars and Ninety-nine Cents ($355.99), which included expenses for the taking of certain depositions by him. The trial judge taxed costs against the appellees-plaintiffs in the sum of One Hundred Sixty-four Dollars and Fifty-six Cents ($164.56), but disallowed the expenses incurred in connection with the taking of the depositions. The assignments of error raise the question as to whether or not the lower court erred in permitting appellees-plaintiffs to take a nonsuit without judgment on the merits against them, and in denying appellant's motion for the entry of a judgment of dismissal with prejudice. The answer to this question is inherent in the answer to the question as to whether or not a plaintiff is entitled, as of right, to take a voluntary nonsuit under the 1954 Rules of Civil Procedure, 1962 Revision, and without prejudice.

This Rule as promulgated by the Supreme Court in 1954, and before it was revised in 1962, was identical with Common Law Rule 35, and contained the following language at the end of Paragraph (b) dealing with involuntary dismissals, viz.:----

'except, however, that nothing stated herein shall preclude a non-suit from being taken pursuant to any applicable statute.'

But, when the Rule was revised in 1962, this language was omitted entirely from it. Appellant argues that the omission of this exception from the Rule upon its revision indicates an intention on the part of the court to abolish all statutory nonsuits. It is evident, however, that this language of limitation upon the operation of Rule 1.35, 30 F.S.A., as included in the 1954 version, and in Common Law Rule 35, because of its position at the end of the paragraph of the Rule entitled '(b) Involuntary Dismissal; Effect Thereof,' is a limitation upon the operative effect of the Rule as it applies to the character of dismissals dealt with by that paragraph only, viz.: involuntary dismissals. It should not be construed to have been a limitation upon the operation of the Rule upon voluntary dismissals which are dealt with in Paragraph (a). Therefore, the removal of the quoted language from Paragraph (b) when the Rule was revised in 1962 cannot be construed as affecting other paragraphs of the Rule, and does not support appellant's claim that all statutory nonsuits are abolished for that reason.

We are importuned by appellant in this appeal to hold that all common law and statutory nonsuits have been abolished in Florida by Rule 1.35 as it now stands. He would have us to hold that such nonsuits, both of a voluntary and involuntary character, have been so abolished. However, we are concerned in this appeal only with a nonsuit of a voluntary character, and the sole question to be decided is whether the trial court erred in permitting the plaintiffs below to take a voluntary non-suit without order of court and subject to conditions fixed by the court. To decide this issue it is not necessary for us to pass upon the question as to whether all common law and statutory nonsuits have been eliminated by Rule 1.35, but only whether a nonsuit of the character involved in this appeal may be taken by a plaintiff without compliance with said Rule.

Perhaps it would be edifying to the members of the Bar for this Court to pontificate and express an opinion as to whether all common law and statutory nonsuits have been done away with, but any such expression beyond that necessary to decide the narrow issue involved in this appeal would be pure obiter dictum, and of no value to members of the Bar as a guide for future litigation. It is the view of the writer of this opinion that an appellate court should confine its opinion to those statements of legal principles necessary for the solution of the particular question or questions involved in the appeal under consideration. Courts of law are established for the sole purpose of deciding issues before them arising from litigated cases and should limit pronouncements of the law to those principles necessary for that purpose. They are not designed to render advisory opinions on abstract questions of law. Judicial pronouncements which are obiter dicta in character more often serve to confound than to clarify the jurisprudence of the State. We confine our decision herein to the determination of the questions as to whether the common law and statutory voluntary nonsuit has been abolished in Florida, and to whether the right of a plaintiff to a voluntary dismissal is governed solely by the provisions of Rule 1.35, 1954 Rules of Civil Procedure, 1962 Revision.

Prior to the adoption of these rules the right of a plaintiff to take a nonsuit was determined by the common law and by Section 54.09, F.S. 1963, F.S.A. The Florida statute is but a recognition of the existence of the common law right of a plaintiff to be nonsuited. This statute provides that 'No plaintiff shall take a nonsuit on trial unless he do so before the jury retire from the bar,' and under it the case law of Florida has established the rule that a plaintiff is entitled, as of right, to take not only a voluntary nonsuit but also a compulsory or 'involuntary' nonsuit, that is, one which is prompted by an adverse ruling of the court which is preclusive of a recovery by the plaintiff in the case at bar (Crews et al. v. Woods et al. Fla., 59 So.2d 526, and cases cited therein).

At common law, before the enactment of the statute of 2 Hen. IV. C. 7, a plaintiff had a right to be nonsuited at any stage of the proceedings he might prefer, and this right continued to the last moment of the trial, even after verdict rendered; or, where the case was tried before the court without the intervention of a jury, until the judge had pronounced his judgment. (Outwaite v. Hudson, 7 Exch. 380; Robinson v. Lawrence, Id. 123; Keat v. Barker, 5 Mod. 208). By the statute of 2 Hen. IV, supra, the right of the plaintiff to a nonsuit was taken away after verdict, but existed at all times before verdict. (National Broadway Bank of City of New York v. Lesley, 31 Fla. 56, 12 So. 525). This was the status of the common law rule when our statute (59.09, F.S.), was enacted in 1828, and which is found at page 835, Sec. 103 of McClellan's Digest. This statute recognized the existence of a right to a nonsuit at common law, but provided that it had to be taken before the jury retire. The Supreme Court of this State has repeatedly recognized the right of a plaintiff to take a nonsuit under this statute, limited only by such requirement that it must be taken before the jury retire. (See National Bank of City of New York v. Lesley, supra; Goldring v. Reid et al., 60 Fla. 78, 53 So. 503; Haile v. Mason Hotel & Investment Co., 71 Fla. 469, 71 So. 540; Tomasello v. Walton, 100 Fla. 710, 129 So. 840; State ex rel. L & L Freight Lines v. Barrs, 129 Fla. 668, 176 So. 756.) Some of the cases decided by that court involved voluntary nonsuits similar to the one announced by the appellees-plaintiffs herein, and others dealt with involuntary nonsuits. As the case law of Florida has developed under the statute, the principal difference between a nonsuit designated as volunary and one designated as involuntary is, the former is taken and granted in such situations as, for instance, when the plaintiff enters court unprepared or is not ready for trial, while the latter is prompted by a proposed adverse ruling of the court. It is evidence that the one we are concerned with on this appeal is a voluntary nonsuit, for the plaintiff, in effect, after the jury was sworn announced a nonsuit, picked up his hat and left the courtroom.

Under the common law and the statute, a plaintiff is entitled to a voluntary nonsuit as a matter of right and no leave of court is necessary (National Broadway Bank of City of New York v. Lesley, supra; Hartquist v. Tamiami Trail Tours, 139 Fla. 328, 190 So. 533).

Prior to the enactment of Sec. 59.05, F.S. (Ch. 3583, Laws of Fla., Acts of 1885, Sec. 1), no writ of error could be taken to an order of nonsuit because it was not a final judgment. However, this statute was adopted to provide the plaintiff with a review by an appellate court on bill of exceptions or an adverse ruling which necessitated the taking of the nonsuit. It is evident that this statute applies only to involuntary nonsuits and has no...