Hutchings v. Royal Bakery & Confectionery Co.

• Decision Date: 10 October 1911
• Citation: 118 P. 185,60 Or. 48
• Parties: HUTCHINGS v. ROYAL BAKERY & CONFECTIONERY CO.
• Court: Oregon Supreme Court

118 P. 185

60 Or. 48

HUTCHINGS v. ROYAL BAKERY & CONFECTIONERY CO.

Supreme Court of Oregon

October 10, 1911

Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.

Action by George Hutchings against the Royal Bakery & Confectionery Company. From an order granting a voluntary nonsuit defendant appeals. Affirmed.

McBride J., dissenting.

This is an action for damages for personal injuries. From an order granting plaintiff a voluntary nonsuit, defendant appeals. The defendant filed a demurrer to the complaint, and upon the same being overruled issues were joined, and the cause came on for trial before a jury. Three witnesses were sworn and testified on behalf of plaintiff. To the question as to whether or not plaintiff's injuries were permanent propounded to Dr. A.W. Moore, one of the witnesses defendant's counsel objected, for the reason that the complaint did not allege permanency of plaintiff's injuries. Upon a ruling thereon adverse to the plaintiff, he moved the court for an order granting him a voluntary nonsuit, which was allowed, over defendant's objection upon the ground that the law did not authorize the same.

Thomas Mannix (Wilbur & Spencer, A.M. Dibble, and W.E. Farrell, on the brief), for appellant.

T.J. Hewitt (A.R. Mendenhall, T.J. Hewitt, and Charles Stout, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

The defendant contends, first, that the plaintiff was not entitled to a voluntary nonsuit after a trial upon the demurrer, unless he filed an amended complaint; second, that he was not entitled to the same after the commencement or during the trial of the cause. L.O.L. § 182, provides that a judgment of nonsuit may be given against the plaintiff (1) on motion of plaintiff, at any time before trial, unless a counterclaim has been pleaded as a defense; (2) on motion of either party upon the written consent of the other; (3) on motion of the defendant, when the action is called for trial, and the plaintiff fails to appear, or when, after the trial has begun, and before the final submission of the cause, the plaintiff abandons it, or when upon the trial the plaintiff fails to prove a cause sufficient to be submitted to the jury.

At common law the plaintiff could, as a matter of right, take a nonsuit at any time during the progress of the trial, and this right continued until after the verdict. Currie v. Southern Pacific Co., 23 Or. 400, 31 P. 963, wherein Mr. Chief Justice Lord quotes Justice Black as saying: "There is no case which decides that the plaintiff may not become nonsuited on his own motion, or that he may not, if he pleases, discontinue or withdraw his action"--citing Blair v. McLean, 25 Pa. 77. "Under the earlier English decisions, plaintiff might become nonsuit even after verdict, if dissatisfied with the damages awarded by the jury. But the rule was changed by 2 Hen. IV, c. 7, providing that 'after verdict a plaintiff shall not be nonsuit.' " 14 Cyc. 400.

Statutes differ, and the practice varies in the different states. In many of the states the statutes provide that plaintiff, if he desires to suffer a nonsuit, must do so "before the cause is finally submitted to the court or jury," or "before the jury retire," or "before the final submission of the cause." This right being one given by statute is believed to be absolute, and one which the court has no right to deny. Both of these classes of statutes are very generally construed to mean that the plaintiff is not entitled as of right to take a nonsuit after the cause has been submitted to the jury or the court. It is held, however, that after the legal right on the part of plaintiff has ended the court may, in its discretion, permit plaintiff to recall such submission, and dismiss without prejudice; and in such case the action of the court, unless it has abused its discretion, is no ground of error. 14 Cyc. 402, 403.

In commenting upon the matter of a nonsuit, in Re Petition of Butler, 101 N.Y. 307, at page 309, 4 N.E. 518, Mr. Justice Finch says: "Ordinarily a suitor has a right to discontinue any action or proceeding commenced by him and his reasons for so doing are of no concern to the court. A party should no more be compelled to continue a litigation than to commence one, except where substantial rights of other parties have accrued, and injustice will be done to them by permitting the discontinuance. In such a case, through the control which the court exercises over the entry of its order, there is discretion to refuse; but where there are no such facts, and nothing appears to show a violation of the right or interest of the adverse party, the plaintiff may discontinue, and a refusal of leave becomes merely arbitrary and without any basis upon which discretion can exist"--citing In re Anthony Street, 20 Wend. (N.Y.) 618, 32 Am.Dec. 608; Carleton v. Darcy, 75 N.Y. 375, 377.

As a general rule, the granting or refusal of leave to take a nonsuit is considered a matter of practice resting in the discretion of the court, which discretion is to be exercised with reference to the rights of both parties. After the proper time has passed for taking a nonsuit, it is necessary in all cases for plaintiff to obtain leave of the court. See 14 Cyc. 396, 397; Adderton v. Collier, 32 Mo. 507; Schafer v. Weaver, 20 Kan. 294; Washburn v. Allen, 77 Me. 344. It is held in some jurisdictions that an interlocutory judgment does not deprive plaintiff of the right to dismiss. 14 Cyc. 400, citing Piedmont Mfg. Co. v. Buxton, 105 N.C. 74, 11 S.E. 264, Lacroix v. Macquart, 1 Miles (Pa.) 156, and Gordon v. Goodell, 34 Ill. 429; the last case holding that where a judgment had been confessed, but defendant permitted to plead, the judgment being for plaintiff's benefit, the latter might take a nonsuit, notwithstanding the judgment upon a motion to that effect previously submitting the cause.

It has also been held by this court that an error in refusing a motion for a nonsuit is not waived by offering testimony after the motion has been overruled. Carney v. Duniway, 35 Or. 131, 57 P. 192, 58 P. 105. In Ferguson v. Ingle, 38 Or. 43, 62 P. 760, it was held that the demurrer to the counterclaim presented an issue of law, which, when considered by the court, was a trial, within the meaning of the statute; but, the demurrer having been sustained, no counterclaim existed, and the plaintiffs, having eliminated from the record the original complaint by filing an amended pleading by leave of court were entitled, upon their motion therefor, to a voluntary nonsuit, in denying which the court erred. In St. Louis Southwestern Railway Co. v. White Sewing Machine Co., 69 Ark. 431, 64 S.W. 96, under a statute providing that an action may be dismissed without prejudice by the plaintiff before final submission of the cause, and that in all other cases upon the trial of the action the decision must be upon the merits, it was held that in the interests of justice the court might permit a plaintiff to withdraw a submission of his case and take a nonsuit without prejudice. Mr. Justice Wood said: "The plaintiff under the statute may not demand as his right what is within the discretion of the court, in the interest of justice, to permit." In Ashmead v. Ashmead, 23 Kan. 262, the court says that: "After a case has been finally submitted to the jury or the court, the plaintiff has no right to dismiss the action without prejudice to a future action; but, while all legal right on the part of the plaintiff has ended, the court may, in its discretion and to prevent injustice and wrong, permit the plaintiff to recall such submission, and dismiss without prejudice; and in such case the action of the court, unless it has abused its discretion, is no ground of error."

The provisions of the statutes of Arkansas and Minnesota are more like those of our own statute than any others which come to our notice. The statute of Minnesota, in addition to its provisions for a nonsuit, similar to those contained in subdivisions 1, 2, and 3, § 182, L. O.L., provides that "all other modes of dismissing an action by nonsuit or otherwise,...