Midgett v. Branning Mfg. Co

• Decision Date: 27 February 1906
• Parties: MIDGETT. v. BRANNING MFG. CO.
• Court: North Carolina Supreme Court

53 S.E. 178

(140 n. c. 361)

MIDGETT.

v.BRANNING MFG. CO.

Supreme Court of North Carolina.

Feb. 27, 1906.

Trial—-Nonsuit—Voluntary Nonsuit.

Plaintiff may not take a voluntary nonsuit and appeal, on the court's intimating pending the argument that, if the jury believe the evidence of defendant on a certain matter, plaintiff cannot recover; the matter of fact being still left open for the jury.

Appeal from Superior Court Tyrrell County; Shaw, Judge.

Action by B. S. Midgett against the Bran-ning Manufacturing Company. Plaintiff took a nonsuit, and appeals. Dismissed.

Certain issues as to negligence, contributory negligence, assumption of risk, and damage were agreed upon and approved by the court for submission to the jury. Pending the argument the judge intimated what he would charge the jury upon a certain phase of the evidence. Whereupon the plaintiff took a nonsuit and appealed.

Aydlett & Ehringhaus and J. B. Leigh, for appellant.

W. M. Bond and Pruden & Pruden, for appellee.

BROWN, J. We are of opinion that the nonsuit was unnecessarily and prematurely taken, and without legal grounds to justify it. The right to suffer a nonsuit in an action like this at any time is undisputed. But the plaintiff cannot appeal unless it appears that he was justified in it, or driven to it, by an adverse opinion of the court which would practically bar a recovery. An intimation of an opinion by the judge adverse to the plaintiff upon some proposition of law, which does not "take the case from the jury, " and which leaves open essential matters of fact still to be determined by them, will not justify the plaintiff in suffering a nonsuit and appealing. Such nonsuits are premature, and the appeals will be dismissed. We suggest, however, to the judges of the superior courts, that it is advisable to refrain from giving such intimations in advance, as to what they will charge the jury, unless their opinions go to the "root of the case" and practically bar a recovery. Such intimations may tend to mislead the plaintiff and induce him to suffer a premature nonsuit. It is best to proceed to charge the jury and let all the alleged errors excepted to during the trial come up for review. If the plaintiff is permitted to take a nonsuit and appeal whenever an adverse ruling is made during the trial, not necessarily fatal to his case, it is possible the same case may be brought to this court for review repeatedly, and numerous and unnecessary trials had in the court below. It is best that the case be "tried out, " and then, if an appeal is taken, all the alleged errors excepted to during the trial may be reviewed here.

In this case the judge, after the conclusion of the first speech by the plaintiff's counsel, intimated that he would instruct the jury that, if they believed the evidence introduced by the defendant upon the question of the contract between Campen and the defendant company, they should find that Campen was an independent contractor, and that, if they find this to be true, the plaintiff could not recover. Upon this the plaintiff took a nonsuit and appealed. In this, the plaintiff was in error; he should have "gone to the jury" upon that disputed fact as well as upon the other important and material Issues in the case. Then, if the verdict should be against him, all his rights would be preserved by...