Hogan-Sunkel, Heating Co. v. Bradley

• Decision Date: 25 May 1928
• Docket Number: No. 26271.,26271.
• Citation: 7 S.W.2d 255
• Parties: HOGAN-SUNKEL HEATING COMPANY, Appellant, v. JOHN T. BRADLEY ET AL.
• Court: Missouri Supreme Court

7 S.W.2d 255

HOGAN-SUNKEL HEATING COMPANY, Appellant, v. JOHN T. BRADLEY ET AL.

No. 26271.

Supreme Court of Missouri, Division Two.

May 25, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Robert Hall, Judge.

DISMISSED.

Jourdan & English for respondents.

The appeal should be dismissed because: (1) An appeal will not lie from the refusal of the circuit court to set aside a voluntary nonsuit. (2) There can be no involuntary nonsuit unless the court gives and reads to the jury an instruction in the nature of a demurrer to the evidence, and the mere indication as to what the court will rule in the future does not form a basis for an involuntary nonsuit. Segall v. Garlichs, 313 Mo. 406; McFarland v. O'Reilly, 308 Mo. 322; Gray v. Ward, 234 Mo. 291; McClure v. Campbell, 148 Mo. 96; Greene County Bank v. Gray, 146 Mo. 568; Schmelzer v. Mfg. Co., 219 Mo. App. 389.

Wardeman, Stevens & Hoester for appellant.

The case of Segall v. Garlichs, 313 Mo. 406, cited by respondent, is probably the latest utterance of this court on the question of whether a nonsuit is voluntary or involuntary, and differentiates from the instant case in a very material particular. The record in the Segall case showed that the court indicated that it would give the instructions in the nature of a demurrer to the evidence, but Judge Otto in his opinion lays particular stress upon the fact that no objections or exceptions to the indication given by the court were made or saved by the plaintiff. To the same effect is the ruling of this court in McFarland v. O'Reilly, 308 Mo. 322, cited by respondent, where the court also emphasizes the fact that no objection or exception was saved by plaintiff at the time the demurrer was offered, and the court indicated its intention of giving the instruction. In this case the plaintiff not only took an involuntary nonsuit, but the court by its solemn judgment "declared an involuntary nonsuit," and the record further recites that "to which action and ruling of this court plaintiff, by counsel, then and there duly excepted and still excepts." The judgment of involuntary nonsuit appealed from in this case was the act of the court and not the act of plaintiff. It was a final determination of the case and an adverse ruling and judgment made by the court, to which plaintiff at the time duly excepted, and no other recourse was left to plaintiff except to appeal from that judgment. Appellant maintains that the motion to dismiss the appeal should be overruled.

WALKER, J.

This is a suit brought by the plaintiff against the defendants, consisting of individuals and corporations, for damages alleged to have been incurred by the plaintiff through the instrumentality and active interference of the defendants, individually and collectively, in preventing the plaintiff from complying with and performing certain contracts entered into by the plaintiff in the sale, construction and installation of heating and power plants in the city of St. Louis. The defendants are engaged in the same line of business as the plaintiff and are members of a voluntary organization known as the Heating & Power Contractors Association. It is alleged that the defendants, acting through this voluntary organization, conspired and confederated together to prevent and did prevent the plaintiff from the employment of the labor necessary to enable him to perform the contracts he had entered into and which conspiracy and interference have caused him great loss and deprived him of much legitimate business, as set forth in the different counts of his petition. In view of the necessary disposition of this case under the record, a further statement of the facts becomes unnecessary.

Called for trial in the Circuit Court of the City of St. Louis upon the issues joined before a jury, the plaintiff introduced testimony in his own behalf. "At the close of the same the defendants requested the court to give and read to the jury an instruction in the nature of a demurrer to the evidence, directing a verdict in favor of the defendants. The court indicated to counsel that it was about to give and read to the jury the instruction requested by the defendants, whereupon plaintiff's counsel elected to take an involuntary nonsuit with leave to set the same aside. Thereupon the jury was discharged and the court declared an involuntary nonsuit and duly entered the same of record. To which action and ruling of the court the plaintiff by counsel then and there excepted and still excepts."

The plaintiff thereupon filed a motion to set aside the nonsuit as follows:

"Now comes plaintiff and moves the court to set aside the nonsuit taken by it during the trial of the above-entitled cause on the 29th day of April, 1924, and to grant it a new trial therein: leave to file this motion having been given by the court at the time of the taking of said nonsuit. And plaintiff alleges as grounds for this motion:

"That the court erred in finding and ruling that plaintiff had not made a prima-facie case against defendants and that under the law and the evidence plaintiff was not entitled to recover against the defendants and in sustaining defendants' demurrer to the evidence at the close of plaintiff's case."

This motion was...