Steenson v. Robinson

• Decision Date: 08 October 1963
• Parties: Brian STEENSON, Appellant, v. Thomas V. ROBINSON and Merle W. Prindel, Respondents.
• Court: Oregon Supreme Court

Page 738

385 P.2d 738

236 Or. 414

Brian STEENSON, Appellant, v. Thomas V. ROBINSON and Merle W. Prindel, Respondents.

Supreme Court of Oregon, In Banc.

Oct. 8, 1963.

Karl T. Huston, Corvallis, on the motion for respondent robinson.

Weatherford, Thompson & Horton, Albany, on the motion for respondent Prindel.

Robert Mix, Corvallis, contra.

O'CONNELL, Justice.

This is an action brought by an automobile passenger against Robinson, the driver of the automobile in which plaintiff was riding, and against Prindel, the driver of another automobile with which it collided.

Plaintiff alleged that he was a paying passenger and based his action against Robinson on the theory of ordinary negligence. Robinson was a minor. As an affirmative defense he disaffirmed the contract. Plaintiff demurred to the affirmative defense. The demurrer was overruled. Defendant Prindel set up the defenses of contributory negligence and assumption of risk. Plaintiff's demurrer to these defenses was overruled.

After the trial defendant Robinson moved for an involuntary nonsuit on the ground that the complaint alleged ordinary negligence only and the affirmative answer established plaintiff as a guest passenger. The motion was granted.

Plaintiff, being unwilling to proceed against Prindel alone and wishing to appeal the ruling on the demurrer to defendant Robinson's affirmative defense, moved for a voluntary nonsuit as to defendant Prindel. The motion was granted. Plaintiff then filed a new action against defendant Prindel. Plaintiff then appealed from the judgment of involuntary nonsuit and from the judgment of voluntary nonsuit.

Both defendant Robinson and defendant Prindel move to dismiss the appeal. Both defendants rely upon Martin v. City of Ashland, 76 Or.Adv.Sh. 197, 378 P.2d 711 (1963), and Collins v. Lantz, 76 Or.Adv.Sh. 711, 381 P.2d 213 (1963), which held that a judgment which affects some of the parties only is not a final judgment and is not appealable.

We shall first consider defendant Robinson's motion. When the judgment of involuntary nonsuit was entered in favor of Robinson it left Prindel in the case. But when plaintiff took a voluntary nonsuit as to Prindel the cause before the trial court was completely terminated. The rule applied in Martin v. City of Ashland, supra, and Collins v. Lantz, supra, is designed to prohibit piecemeal appeals, i. e., an appeal which affects one defendant only when the action as to the other defendant is still before the trial court. In the case at bar, after plaintiff took a voluntary nonsuit as to Prindel there was no subsisting action as to either defendant. Therefore, the appeal from the judgment in favor of Robinson could not be regarded as inconsistent with the policy underlying the rule applied in the Martin and Collins cases. We hold, therefore, that defendant Robinson's motion to dismiss the appeal is denied.

Prindel's motion presents a different problem. The judgment which disposed of the cause against Prindel was entered as a result of plaintiff's motion for a nonsuit. It is the general rule that a party may not appeal from a judgment which he voluntarily requested. ¹

Plaintiff contends, however, that the nonsuit was not voluntarily requested but was, in effect, forced upon him by the trial court's ruling on plaintiff's demurrer to Prindel's affirmative defenses of contributory negligence and assumption of risk. If the plaintiff takes a nonsuit because of a ruling which precludes recovery, it has been held that the judgment is not in fact voluntarily requested and, therefore, does not bar an appeal. ²...