Miller v. Harris

• Decision Date: 24 December 1975
• Docket Number: No. 40090,40090
• Citation: 195 Neb. 75,236 N.W.2d 828
• Court: Nebraska Supreme Court
• Parties: Mary Kay MILLER, Appellant, v. Lyle D. HARRIS and Wilford Harris, Appellees.

Page 828

236 N.W.2d 828

195 Neb. 75

Mary Kay MILLER, Appellant, v. Lyle D. HARRIS and Wilford Harris, Appellees.

No. 40090.

Supreme Court of Nebraska.

Dec. 24, 1975.

Syllabus by the Court

1. The right of a plaintiff to dismiss a cause of action before submission to the court is a statutory right and is not a matter of judicial grace or discretion.

2. A final submission of an action, within the purview of section 25--601, R.R.S.1943, contemplates its submission upon both law and fact.

3. A plaintiff cannot dismiss his action without prejudice after there has been a final submission of it either to the court or jury.

4. When a case has been submitted upon a motion for directed verdict, plaintiff's absolute right to dismiss without prejudice is lost.

5. When a motion for directed verdict has been overruled, there is no longer a final submission to the court where issues remain to be determined by the jury and have not been submitted to it.

6. Where a dismissal by the plaintiff is intended as a retraxit or abandonment of his cause, the facts supporting that conclusion must be affirmatively and clearly shown by the record.

7. Good practice would indicate that when a plaintiff dismisses his petition he specify whether the dismissal is 'with' or 'without' prejudice.

Philip T. Morgan, Fullerton, for appellant.

Cronin, Shamberg & Wolf, John A. Wolf, Grand Island, Knapp, Tarrell, State & Yeagley, Marmion Yeagley, Kearney, for appellees.

Heard before WHITE, C.J., McCOWN, NEWTON, and CLINTON, JJ., and KUNS, Retired District Judge.

CLINTON, Justice.

The single issue in this case is whether a voluntary dismissal by the plaintiff of a previous action founded upon the same facts as in the present case, i.e., the identical cause of action, is res judicata of the present cause, or whether the dismissal of the previous action comes within the purview of section 25--601, R.R.S.1943, which permits the plaintiff to dismiss his action without prejudice 'before the final submission of the case to the jury, or to the court where trial is by the court.'

The question arises under the following facts. Plaintiff, in the previous action, sued to recover for personal injuries incurred in an automobile accident when an automobile in which she was a passenger, operated by the defendant Lyle D. Harris and owned by the defendant Wilford Harris, collided with an automobile driven by LaMoine C. Arends. At the close of the plaintiff's evidence Lyle D. Harris moved for a directed verdict. The court overruled the motion. Immediately thereafter the plaintiff dismissed the action as to the Harrises. Defendant Arends then moved for a directed verdict. The court sustained that motion and its action was affirmed by this court on appeal. Miller v. Arends, 191 Neb. 494, 215 N.W.2d 891. Thereafter the plaintiff filed the present action against the Harrises. The Harrises pled res judicata on the ground that the dismissal in the previous action was with prejudice. The trial judge found the defense of res judicata good and dismissed the plaintiff's petition. She appeals, relying upon section 25--601, R.R.S.1943, and the principle that the right of the plaintiff to dismiss a cause of action without prejudice before submission to the court is a statutory right and not a matter of judicial grace or discretion. Giesler v. City of Omaha, 175 Neb. 706, 123 N.W.2d 650; Gebhart v. Tri-State G. & T. Assn., 181 Neb. 457, 149 N.W.2d 41. We reverse and remand.

The defendants Harrises argue (1) that a plaintiff may not dismiss without prejudice after a motion for a directed verdict has been made and submitted, or after such a motion has been argued and the court expressed an opinion on it, and (2) the dismissal was with prejudice because the plaintiff did not expressly reserve her right to bring a future action, and the record discloses an intention on the part of the plaintiff to dismiss with prejudice. In support of the first grounds, the defendants cite Spies v. Union P.R.R. Co., 250 F. 434, 162 C.C.A. 504; Rhode v. Duff, 208 F. 115, 125 C.C.A. 343; Bee Building Co. v. Dalton, 68 Neb. 38, 93 N.W. 930; Fronk v. Evans City Steam Laundry Co., 70 Neb. 75, 96 N.W. 1053; Harbert v. Mueller, 156 Neb. 838, 58 N.W.2d 221. Those cases support the general proposition first asserted. However, in each of those cases the motion by the plaintiff to dismiss was made either while the court was considering the motion of the defendant for a directed verdict, or after the court had indicated its intention to grant the directed verdict. In each of those cases the directed verdict was, in fact, granted.

In the case at hand the situation is different and distinguishable because here the motion for directed verdict was overruled and the plaintiff did not move to dismiss until after that ruling was announced. At that time the matter was then no longer under submission either to the court on the legal sufficiency of the evidence or to the jury for determination of issues of fact. The plaintiff had rested her case and the defendants' case was yet to be presented. The situation was not then any different for purposes of voluntary dismissal than if the defendant had never made the motion for a directed verdict.

We find no Nebraska cases precisely on point, but believe the decision here is controlled by the rather clear import of statements made in prior opinions. In Plattsmouth Loan & Bldg. Assn. v. Sedlak, 128 Neb. 509, 259 N.W. 367, this court set forth by quotation of authority from several other jurisdictions the common law genesis of and the reasons for the statutory rule governing the right of the plaintiff to dismiss without prejudice. At common law the rule was broader and the plaintiff could dismiss at any time before the matter was decided, even after final submission. In Plattsmouth Loan & Bldg. Assn. v. Sedlak, supra, the first syllabus is: 'A final submission of an action, within the purview of section 20--601, Comp.St.1929, contemplates its submission upon both law and fact.' The opinion in Bee Building Co. v. Dalton, supra, and other cases point out that the request for a directed verdict is a final...