Southeastern Fire Ins. Co. v. Walton, 460

• Decision Date: 02 February 1962
• Docket Number: No. 460,460
• Citation: 256 N.C. 345,123 S.E.2d 780
• Parties: SOUTHEASTERN FIRE INSURANCE COMPANY v. Lewis Poteat WALTON and James Nickios.
• Court: North Carolina Supreme Court

Page 780

123 S.E.2d 780

256 N.C. 345

SOUTHEASTERN FIRE INSURANCE COMPANY v. Lewis Poteat WALTON and James Nickios.

No. 460

Supreme Court of North Carolina.

Feb. 2, 1962

Dupree, Weaver, Horton & Cockman and Jerry S. Alvis, Raleigh, for defendants-appellants.

Bailey & Dixon, Raleigh, for plaintiff-appellee.

MOORE, Justice.

The rule is uniformly observed in this State that a plaintiff, in an ordinary civil action, against whom no counterclaim is asserted and no affirmative relief is demanded, may as a matter of right, take a voluntary nonsuit and get out of court at any time before verdict, and his action in so doing is not reviewable, and it is error for the court to refuse to permit him to take the voluntary nonsuit. 4 Strong: N.C.Index, Trial, s. 29, p. 325; Hoover v. Odom, 250 N.C. 235, 108 S.E.2d 426; Everett v. Yopp, 247 N.C. 38, 100 S.E.2d 221; Sink v. Hire, 210 N.C. 402, 186 S.E. 494; Southern Cotton Oil Co. v. Shore, 171 N.C. 51, 87 S.E. 938; Graham v. Tate, 77 N.C. 120. Conversely, a nonsuit is not allowed after verdict. 'In actions where a verdict passes against the plaintiff, judgment shall be entered against him.' (Emphasis added.) G.S. § 1-224; Sharpe v. Sowers, 152 N.C. 379, 67 S.E. 1003.

In the instant case the jury agreed upon a verdict, answered the written issues, returned to the courtroom, and handed the written verdict to a deputy sheriff. While the deputy sheriff was on the way to the judge's bench to deliver the verdict to the judge, plaintiff requested that it be permitted to take a voluntary nonsuit. The judge refused to permit it to do so. We must therefore determine, initially, whether or not the request was made before the verdict passed. If so, it was error for the judge to accept the verdict and enter judgment based thereon.

In this jurisdiction the general rule has been repeatedly and consistently stated and applied, under widely differing circumstances, that before a verdict returned into open court is complete, it must be accepted by the court for record. State v. Gatlin, 241 N.C. 175, 84 S.E.2d 880; Edwards v. Hood Motor Co., 235 N.C. 269, 69 S.E.2d 550; Queen v. DeHart, 209 N.C. 414, 184 S.E. 7; Baird v. Ball, 204 N.C. 469, 168 S.E. 667; Allen v. Yarborough, 201 N.C. 568, 160 S.E. 833; State v. Bagley, 158 N.C. 608, 73 S.E. 995; State v. McKay, 150 N.C. 813, 63 S.E. 1059; State v. Godwin, 138 N.C. 582, 50 S.E. 277; State v. Arrington, 7 N.C. 571. Acceptance by the trial judge is a prerequisite for a complete, valid and binding verdict. It is the duty of the judge to examine the form and substance of a verdict so as to prevent a doubtful or insufficient finding from passing into the records. For that purpose the court can, at any time while the jury is before it and under its control, see that the jury amend its verdict in form so as to meet the requirements of the law. When the jury returns an informal, insensible, or a repugnant verdict or one that is not responsive to the issues submitted, they may be given further instructions by the court and directed to retire and reconsider the matter and bring in a verdict in proper form. State v. Gatlin, supra; Edwards v. Hood Motor Co., supra; Queen v DeHart, supra; Baird v. Ball, supra. But the power of the trial court to accept or reject a verdict is restricted to the exercise of a limited legal discretion, and if the verdict is determinative of the issues involved the court is without authority to reject it, provided the court at the time of the coming in of the verdict has authority to proceed with the trial. Edwards v. Hood Motor Co., supra; Allen v. Yarborough, supra. Of course, the court cannot amend or change the substance of a verdict without the consent of the jury, and cannot amend or change it in any way after it has been accepted and recorded. State v. Snipes, 185 N.C. 743, 117 S.E. 500.

In Cahoon v. Brinkley, 168 N.C. 257, 84 S.E. 263, the right of plaintiff to take a voluntary nonsuit is involved. The jury returned to the courtroom at the instance of the judge, stated that they had not reached a verdict, but, upon inquiry by the judge as to progress made, said they could agree upon an answer to the first issue within a few minutes. The judge directed the jury to retire for further deliberation. 'They started toward the jury room and the counsel for plaintiff arose and said the plaintiff would take a nonsuit.' The court refused to permit the plaintiff to do so. On appeal, this Court reversed the ruling and stated: 'It is to be noted that the jury in this case had not agreed on any one issue, and no verdict had been rendered on either issue. Under such circumstances, it is well settled, in the absence of a properly pleaded counterclaim, that plaintiff had a right to submit to a nonsuit and go out of court.' In Southern Cotton Oil Co. v. Shore, supra, seven of eleven issues had been answered, and the identity of the answered issues was known to the parties. At the direction of the court the jury retired to further consider the issues. Plaintiff's counsel announced that plaintiff would take a nonsuit, but the court would not permit it to do so. This ruling was reversed on appeal. 'The jury had delivered no verdict, and the court had not accepted what had been done as a verdict * * *.' (Emphasis added.) In a case in which the verdict had been accepted by the judge and the jury had retired at the court's direction to correct a mere informality in the verdict, the plaintiff had no right to take a voluntary nonsuit. Strause v. Sawyer, 133 N.C. 64, 45 S.E. 346.

'A plaintiff can at any time before verdict withdraw his suit, or, as it is termed, 'take a nonsuit' * * *. (A)ccording to the course of the court the plaintiff is at liberty to take a nonsuit by announcing his purpose to absent himself even after the judge has charged the jury and their verdict is made up; provided he does so before the verdict is made known. ' (Emphasis ours.) Graham v. Tate, supra.

'When the jury appear in court, the judge directs the clerk to take the verdict; he inquires if they have agreed, and the foreman responds that they have, and hands the issues with the answers to the clerk. These are then read, so that the judge may determine whether or not they are in proper form, and the clerk inquires whether all the jurors consent, 'so say you all,' to show that it is unanimous, and to give each juror an opportunity to express his dissent. ' McIntosh: North Carolina Practice and Procedure, (2d Ed.) Vol. 2, s. 1471, p. 79.

We conclude that a verdict 'passes,' when it has been accepted by the trial judge for record. And a plaintiff may take a voluntary nonsuit at any time before the verdict is accepted and before it is 'made known.' A verdict is accepted by the...