Lykens v. Jarrett

• Decision Date: 04 November 1941
• Docket Number: 9193.
• Citation: Lykens v. Jarrett, 123 W.Va. 631, 17 S.E.2d 328 (W. Va. 1941)
• Parties: LYKENS v. JARRETT et al.
• Court: West Virginia Supreme Court

17 S.E.2d 328

123 W.Va. 631

LYKENS v. JARRETT et al.

No. 9193.

Supreme Court of Appeals of West Virginia.

November 4, 1941

Syllabus by the Court.

The statute providing that a party shall not be allowed to suffer a nonsuit, unless he do so before the jury retire from the bar, means that a party has such right at any time before the jury retires. Code 1931, 56-6-25.

Under the statute providing that a party shall not be allowed to suffer a nonsuit, unless he do so before the jury retire from the bar, plaintiff who moved to take a nonsuit immediately after court, out of jury's presence, announced its decision to direct a verdict for one of the defendants but before jury was directed to return such verdict, was entitled to a nonsuit as a matter of right. Code 1931, 56-6-25.

Under Code, 56-6-25, a motion by a plaintiff to be permitted to take a non-suit, made immediately after the court, out of the presence of the jury, had announced its decision to direct a verdict for the defendant, and before the jury was directed to return such verdict, should be sustained.

H D. Rollins, of Charleston, for plaintiff in error.

B J. Pettigrew, Ritchie, Hill & Thomas, and Salisbury Hackney & Lopinsky, all of Charleston, for defendant in error.

FOX Judge.

Proceeding under Code, 55-7-5, as amended by Acts 1931, c. 20, Sadie M Lykens, ancillary administratrix of the estate of Maxine Wilburn Collier, instituted her action of trespass on the case against S. Clyde Jarrett and Edgar C. Bourne, in the Circuit Court of Kanawha County. The defendants filed their plea of not guilty, and on the issue joined, the court proceeded to try the case before a jury. At the conclusion of the plaintiff's evidence, the court and counsel retired to the court's chambers, where, out of the presence of the jury, a motion was made by counsel for the defendant, S. Clyde Jarrett, that a verdict be directed in his favor; and the court without any preliminary remarks, so far as the record discloses, then stated: "I will sustain the motion as to the defendant Jarrett." Counsel for the plaintiff immediately said, "Your Honor, before the court directs the verdict, I desire to take a nonsuit, as I have that right."; to which counsel for Jarrett replied, "No, not after the court has ruled; we don't think so."; whereupon the court said, "I will have to pass on that later, *** as to just what your rights are with regard to taking a nonsuit." Immediately following this colloquy in chambers, the trial of the case was resumed in the hearing of the jury, and the court stated to the jury the fact of the motion made to dismiss the case as to Jarrett, and stated his reasons for sustaining the motion, closing his remarks with this statement: "I would not feel warranted in sustaining the verdict against the defendant Jarrett, should one be found against him, and you will accordingly be directed at the conclusion of this case to return a verdict in his favor." The trial was resumed and, presumably, the evidence introduced was on behalf of the defendant Bourne. There is nothing in the record showing any further action in the case as to Jarrett, except the jury verdict which was, "We, the jury, find for the plaintiff against the defendant, Edgar C. Bourne, and assess her damages at Twenty-five Hundred ($2500.00) Dollars, and we, the jury, at the direction of the court find for the defendant, S. Clyde Jarrett." Subsequently, the plaintiff made a motion to set aside the verdict as to the defendant Jarrett, and to permit her to take a non-suit as requested in chambers, which motion the court took time to consider, but later overruled, and rendered judgment in favor of said defendant Jarrett. To such action of the court, the plaintiff prosecutes this writ of error.

At common law a plaintiff had the right to take a non-suit at any time before verdict, and by analogy we would say that where a case had been submitted to the court in lieu of a jury, the right to take a non-suit continued up to the time the court announced its decision thereon. Our statute, Code, 56-6-25, provides that "A party shall not be allowed to suffer a nonsuit, unless he do so before the jury retire from the bar," which, as we understand, is but another way of stating that he has such right at any time before the jury retires. Under this statute it has been held that, "Plaintiff in an action at law will not be permitted to suffer a nonsuit or dismiss his action without prejudice, after the case has been submitted for decision to the court sitting in lieu of a jury." International Bank v. People's Bank of Keyser, 103 W.Va. 597, 138 S.E. 745.

The case before us is not one submitted to the court in lieu of a jury. Here, there was a regular jury trial, and motion to direct a verdict for one of the defendants heard out of the presence of the jury. Such a motion did not operate to submit the matter to the court in lieu of a jury. Such a course could have been taken only by waiver of a jury, or other agreement of the parties. The motion was one which the defendant had the right to make, and which the plaintiff was helpless to prevent. The mere making of the motion did not require plaintiff to elect as to whether she would test her case thereon, or submit to a non-suit. She had a right to await the action of the court before determining her course. She did determine her course promptly when the court announced its decision to sustain the motion. She had no opportunity to make her motion for a non-suit prior to the court's announcement that he would sustain the motion. However, it seems to have been understood, at least by counsel for plaintiff, that something more was required of the court before its action became effective, because the request was that before a verdict was directed, the plaintiff be allowed to take a non-suit. We think it is common trial practice that a plaintiff may take a non-suit after a court has indicated an intent to direct a verdict against him; that the court, in this case, did something more than merely indicate its decision, should not, in the circumstances, deprive the plaintiff of her common law and statutory right to take a non-suit. The announcement by the court that at the end of the trial the jury would be directed to return a verdict for the defendant should not be held to prevent the plaintiff from dismissing her action through the process of taking a non-suit, when motion therefor was made before the verdict was directed. Up to that very moment, plaintiff had the right to rely on her right to submit the case to the jury unhampered by a peremptory instruction to find against her.

The right to take a non-suit within the limitations prescribed by our sta...