296 P. 564 | Wash. | 1931
Plaintiff brought this action to recover damages for personal injuries. He prayed for judgment in the sum of ten thousand dollars. The case was tried to the court and jury, and resulted in a verdict in his favor in the sum of one thousand dollars. The verdict was filed of record September 9, 1930. Thereafter, defendant interposed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial. These motions came on for argument before the trial court on September 20, 1930, at which time the defendant waived its motion for a new trial, to which waiver the plaintiff consented, which *155 left, as the only matter pending, defendant's motion for judgment notwithstanding the verdict. Before argument on that motion, plaintiff made a motion for a voluntary nonsuit and dismissal without prejudice, and with costs to the defendant. Thereupon, the court entered a formal order dismissing the action without prejudice, and with costs to the defendant, from which order the defendant has appealed.
[1] The single question raised by this appeal is: Can the court, after verdict, on motion of the prevailing party, enter a nonsuit or dismissal of the action without prejudice? This precise question has not been presented to this court heretofore. The evolution of the principle or rule as to the right of a plaintiff to a voluntary nonsuit or dismissal after verdict, is treated rather exhaustively in Ann. Cas. 1913D 525. We quote:
"Under the early English law a plaintiff could take a nonsuit after a general verdict `if he did not like his damages,' Keatv. Barker, 5 Mod. 208; but subsequently by statute (2 Hen. IV, c. 7) it was ordained `that after verdict a plaintiff shall not be nonsuit,' Keat v. Barker, supra. Under the early English practice a plaintiff or complainant in an action or proceeding also had the right voluntarily to discontinue or dismiss his action even after trial and an adverse decision, Washburn v.Allen,
An examination of the cases there treated will disclose that the overwhelming weight of authority is to the effect that the prevailing party is not entitled, as a matter of right, after verdict, to a voluntary nonsuit. *156
The Session Laws of 1929, ch. 89, p. 172, provide:
"Sec. 1. An action in the superior court may be dismissed by the court and a judgment of nonsuit rendered in the following cases:
"1. Upon the motion of the plaintiff, (a) when the case is to be or is being tried before a jury, at any time before the court announces its decision in favor of the defendant upon a challenge to the legal sufficiency of the evidence, or before the jury retire to consider their verdict, . . .
"8. . . . In every case, other than those mentioned in this section, the judgment shall be rendered upon the merits and shall bar another action for the same cause."
This statute is plain, unambiguous, and obviates construction. The statute is decisive of the question here raised. It expressly provides that a nonsuit or dismissal may be taken by the plaintiff at any time "before the jury retire to consider theirverdict," but if a voluntary nonsuit is not taken before the jury retire to consider their verdict, then "judgment shall berendered upon the merits and shall bar another action for thesame cause."
In the case before us, the jury had returned a verdict in favor of the respondent. Feeling aggrieved, apparently with the amount of the award, respondent sought to evade or circumvent the verdict, and, over appellant's objections, obtained a dismissal without prejudice, with the hope that he might recover a greater amount in the future. To hold that the respondent, as a matter of right, was entitled to a voluntary nonsuit after verdict, would permit him to subject appellant to a second trial, and, if again dissatisfied with the verdict, then to a third trial, or any additional number of trials, until he succeeded in recovering a verdict for an amount he deemed to be sufficient. This would place in the hands of an eager and persistent litigant an *157 instrument to thwart and defeat justice. The statute was enacted to prevent just such a situation.
The law is well settled in this state that a party plaintiff may take a voluntary nonsuit at any time, either before or after a challenge to the sufficiency of plaintiff's evidence has been interposed, if taken before an adverse ruling is made by the court. But the law is equally well established that a party plaintiff loses his right to a voluntary nonsuit, after an adverse ruling by the court on a motion challenging the legal sufficiency of his evidence. Dunkle v. Spokane Falls NorthernR. Co.,
But respondent relies on the case of Studley v. Studley,
"In disregarding appellant's withdrawal of her cross-complaint and proceeding to grant the relief which she had originally asked, notwithstanding her change of position, and over her protest, the trial court was misled, and perhaps excusably so, by what was said by this court in Kosinski v. Hines,
For the reasons assigned, the order of the lower court is reversed and the cause remanded, with directions to dispose of appellant's motion for judgment notwithstanding the verdict. It is so ordered.
TOLMAN, C.J., MILLARD, BEALS, and FULLERTON, JJ., concur. *159