Worthington v. McGough

• Decision Date: 03 January 1912
• Docket Number: 2,139.
• Citation: 192 F. 512
• Parties: WORTHINGTON v. McGOUGH.
• Court: U.S. Court of Appeals — Sixth Circuit

192 F. 512

WORTHINGTON v. McGOUGH.

No. 2,139.

United States Court of Appeals, Sixth Circuit.

January 3, 1912

C. A Seiders, for plaintiff in error.

C. A Thatcher, for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

DENISON Circuit Judge.

The action below was brought by the administrator, as plaintiff against the receiver, as defendant, and we will refer to the parties according to their positions in the trial court. The plaintiff sought damages for the death of his decedent caused, as plaintiff claimed, by defendant's negligence. At the close of plaintiff's evidence, the defendant moved for a directed verdict. After argument, the judge announced his intention to sustain the motion. Then the plaintiff moved to withdraw a juror, in order that he might have an opportunity to dismiss the cause and bring another action upon the same facts in a state court. This motion was allowed, and a juror was withdrawn, the remainder of the jury discharged, and the cause dismissed upon plaintiff's motion, without prejudice to the bringing of another action in one of the courts of the state. The defendant, claiming that he was entitled to a verdict, and a final judgment in his favor, brings this proceeding, and assigns error upon the action recited.

The record contains no bill of exceptions, and does not show any exception to the action of the court in granting plaintiff's motion to withdraw a juror, or in allowing the case to be dismissed as it was. It is objected that, for lack of such exception, the error assigned cannot be considered. We think the case did not require any bill of exceptions. The entire action of the court is recited upon the face of the judgment entry, so that it fully appears upon the record, and no exception is required to raise the question whether the record in the case supports the challenged judgment. Chicago, R.I. & P. Ry. Co. v. Barrett, 190 F. 118, 123 (C.C.A. 6).

We recently quite fully considered the situation which arises when the court has announced its intention to direct a verdict against the plaintiff, and when the plaintiff then seeks voluntarily to dismiss. This was in Knight v. Ill Cent. R.R. Co., 180 F. 368, 103 C.C.A. 514. The statute of Kentucky, there considered, which declared that plaintiff had the right of dismissal at any time prior to final submission to the jury, is identical in language with the Ohio statute here involved (Ohio Gen. Code, Sec. 11,586). In that case we held that such a statute was applicable in the federal courts sitting in that state, and that the federal courts must follow the rule of construction adopted by the courts of that state. We are now told that the Supreme Court of Ohio, in Turner v. Pope Motor Car Co., 79. Ohio St 153, 86 N.E. 651, has construed this statute, and has held that under such circumstances the defendant is entitled to have judgment entered in his favor. If that is the ruling of the ...