Slowke v. Altermatt

• Decision Date: 03 June 1940
• Docket Number: No. 23.,23.
• Citation: 293 Mich. 360,292 N.W. 330
• Parties: SLOWKE v. ALTERMATT et al.
• Court: Michigan Supreme Court

293 Mich. 360

292 N.W. 330

SLOWKE

v.ALTERMATT et al.

No. 23.

Supreme Court of Michigan.

June 3, 1940.

Action by Julius Slowke, adminitrator of the estate of Paul Slowke, against Robert Altermatt and another, to recover damages for injuries resulting in decedent's death. Judgment for defendants, and plaintiff appeals.

Judgment vacated, with direction.

Appeal from Circuit Court, Macomb County; James E. Spier, judge:

Argued before the Entire Bench.

Roy W. Bonam, of Detroit (Crawford S. Reilley, of Detroit, of counsel), for plaintiff and appellant.

Nunneley & Nunneley, of Mount Clemens (Bert V. Nunneley, of Mount Clemens, of counsel), for defendants and appellees.

NORTH, Justice.

Plaintiff's decedent, Paul Slowke, while crossing on foot Gratiot Avenue in the city of Detroit, was struck by an automobile owned by defendant Clarence Altermatt and driven with his knowledge and consent by his son, the defendant Robert Altermatt. Slowke was instantly killed. At the close of plaintiff's proofs and during the absence of the jury the defendants made a motion for a directed verdict. Among the reasons assigned in support of defendants' motion were the following: That plaintiff's decedent was guilty of contributory negligence, and that plaintiff brought his suit solely under the survival act (Comp.Laws 1929, § 14040; Stat.Ann. 27.684), and there was no evidence of survival. After hearing arguments by the respective counsel and directing that the jury should be returned to the court room, the trial judge in reply to an inquiry by plaintiff's counsel announced that he had decided to direct a verdict in favor of defendants. Thereupon plaintiff's counsel stated: ‘Under those circumstances I wish to make a motion for non-suit in this case.’ Argument followed as to plaintiff's right to move for a nonsuit after the trial judge had announced his decision on defendants' motion to direct a verdict and the judge ruled as follows: ‘I am inclined to deny the motion (for nonsuit) with the right to reconsider it on further motion or argument.’ Verdict for defendants was directed and judgment entered thereon. Thereafter plaintiff moved the court to set aside the verdict and judgment and to grant plaintiff's motion for entry of an order for nonsuit. The ruling was adverse to plaintiff and he has appealed.

The sole question presented by this appeal is plaintiff's contention that the trial court committed error in denying the motion for nonsuit. In support of his contention plaintiff asserts that since his motion for nonsuit was made before the defendants had entered upon their defense on the merits and before the trial judge had actually directed a verdict for defendants, he was entitled as a matter of right to an order for nonsuit.

The pertinent rule and statutory provisions are as follows:

‘Plaintiff may at any time, upon notice to the defendant or his attorney, and on payment of costs, discontinue his suit by order filed in court, except where recoupment or set-off is asserted by the defendant; and except where a defendant shall have entered upon his defense in open court, unless with the consent of the defendant. * * *’ Court Rule (1939) No. 38.

‘That in any civil action hereafter commenced in this state, whenever the defendant shall have entered upon his defense to the action in open court, the plaintiff shall not be allowed to discontinue his suit or submit to a non-suit without the consent of the defendant.’ Comp.Laws 1929, § 14,335; Stat.Ann. 27.1081.

Because there has been a material change in Court Rule No. 38 since our decision in Pear v. Graham, 258 Mich. 161, 241 N.W. 865, that case, which was...