Schaffer v. Deemer Mfg. Co.

• Decision Date: 07 December 1914
• Docket Number: 16842
• Citation: 108 Miss. 257,66 So. 736
• Court: Mississippi Supreme Court
• Parties: SCHAFFER v. DEEMER MANUFACTURING COMPANY

66 So. 736

108 Miss. 257

SCHAFFER v. DEEMER MANUFACTURING COMPANY

No. 16842

Supreme Court of Mississippi

December 7, 1914

APPEAL from the circuit court of Neshoba county. HON. C. J. DOBBS Judge.

Suit by Eddie Schaffer by his next friend, Moses Schaffer, against the Deemer Manufacturing Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Robert S. Hall, for appellant.

We submit to the court that taking this entire record and the circumstances of this boy's injuries into consideration it is a case warranting the invoking of the doctrine of res ipsa loquitur. M. J. K. C. R. R. Co. v. Mary Hicks et al., 91 Miss. 273; A. & V. R. R. Co. v. Groome, 97 Miss 201.

We submit that the refusal of the trial court to submit this case to the jury, or in granting the peremptory instructions asked for by the defendant is serious error, and for which error we respectfully ask the case to be reversed.

After the motion found on page 83 for peremptory instructions was presented to the court by the defendant, the case, as the court will note, was re-opened by permission of the trial court, and on page 86, after taking additional testimony, and the trial court having manifested its intention of giving the defendant a peremptory instruction plaintiff's attorney in open court, as will be seen from the record, asked the trial court to permit the plaintiff to take a nonsuit after expressing to the trial court that plaintiff's attorney did not agree with his honor in his opinion as to the peremptory instruction, but the motion for nonsuit was denied and the peremptory instruction granted; and this act of the trial court is the second ground for the assignment of error in this case.

It has always been our understanding of the law that a nonsuit can be had before the jury retires for the consideration of its verdict; in fact section 802 of the Code of 1906, so provides; and the records shows that this motion was made before the rendition of any verdict by the jury, made immediately after the close of the plaintiff's testimony. And for this serious error of the trial court counsel for appellant submit that the case should be reversed.

Wells May & Sanders, for appellee.

It is insisted by counsel for appellant that section 802, Code of 1906, was violated by the action of the court in refusing a nonsuit. Said section reads as follows: "Every plaintiff desiring to suffer a nonsuit on trial shall be barred therefrom unless he does so before the jury retire to consider of its verdict."

Under the facts disclosed by the record in this case, that statute cannot avail appellant, for the reason that the case was withdrawn from the consideration of the jury. There was no verdict for the jury "to consider of." Intervention of the jury was peremptorily dispensed with. Even though the jury might go through the perfunctory performance of retiring and returning a verdict, they would have no voice as to the kind of verdict to render, having been stripped of their discretion and power by the exercise of the lawful right conferred upon the trial judge. Our court, speaking through CAMPBELL, C. J., in the case of Mississippi & Yazoo River Packet Co. et al. v. Charles J. Edwards, 62 Miss. 536, says: "The only evidence of the defendant (appellant) was so plainly insufficient to sustain a verdict in favor of defendant if rendered, that the court properly excluded the evidence. This practice is to be commended in cases in which it is manifest that a verdict resting upon the evidence proposed to be excluded could not stand. The power to exclude should be cautiously exercised, but in plain cases of insufficiency of evidence, accepted as absolutely true, to maintain an issue, there should be no hesitation to employ it. It saves time and the useless intervention of a jury."

Thus it will be noted that counsel should have applied to the trial court for his nonsuit before the judgment upon the motion was pronounced. He could not speculate with the court until his case was lost and then save his right to further speculate with the court and further harass defendant by reclaiming his right to file another suit. The announcement of the court was the equivalent of a jury verdict, as far as the disposition of plaintiff's case was concerned.

We will not undertake to discuss the evidence in the record, which the trial court held was insufficient to carry plaintiff's case to the jury, for this court will inevitably be impressed with the fact in reviewing the testimony that there is no evidence tending to establish plaintiff's claim, that is actionable negligence on the part of the defendant which was the proximate or contributing cause to the plaintiff's injuries.

OPINION

SMITH, C. J.

This suit was filed in the court below to recover of the Deemer Manufacturing Company, a corporation engaged in the sawmill business, damages for injuries alleged to have been sustained by the plaintiff while in the employ of the defendant, by reason of the negligence of one of its servants. The plaintiff, on the occasion in question, was assisting in loading logs upon one of the defendants' logging trains, and while so engaged a tree, cut by some one near where the plaintiff was standing, fell on him and broke his leg. At the close of the plaintiff's evidence the court, on motion of the defendant, excluded it from the jury, and granted the defendant a peremptory instruction. The court committed no error in excluding this evidence and in granting this instruction, for the reason that plaintiff's evidence wholly failed to show that the tree was cut by anyone in defendant's employ, or that the defendant was in any way responsible therefor; all that the evidence disclosed with reference thereto being that some of the defendant's employees were cutting timber in that vicinity shortly after plaintiff was injured.

After the court had granted this instruction, the plaintiff requested the court...