126 P.2d 524 | Okla. | 1942
On the 10th day of August, 1940, Eileen Hubbard filed an action against her husband, Belton R. Hubbard, seeking to recover $20,000 *680 damages for personal injuries resulting from an automobile collision near Ardmore, Okla. The injuries were received when the automobile in which she was riding, driven by her husband, collided with one driven by B.D. Branum.
The defendant answered denying generally the allegations of the petition and pleading specially that Branum had paid defendant for any injuries sustained. Issues were made on the pleadings and the cause called for trial on May 21, 1941. After the jury had been selected the attorney for plaintiff made his opening statement in which he disclosed that plaintiff would rely upon testimony tending to show that defendant was under the influence of intoxicating liquor when the accident occurred. Thereupon, the trial judge having made some remarks, plaintiff moved to dismiss the case without prejudice, stating, among other things, that the witness Branum could not be obtained. The trial court refused to dismiss the action, and on motion of defendant's attorney entered judgment for the defendant.
We are of the opinion, and hold, that the court erred as a matter of law in denying the motion to dismiss. Chicago, R.I. P. R. Co. v. Reynolds,
The judgment and order of the trial court is reversed and the cause remanded, with directions to the trial court to vacate and set aside the judgment for the defendant and to enter an order sustaining the motion of the plaintiff to dismiss.
Reversed and remanded, with directions.
CORN, V. C. J., and OSBORN, BAYLESS, GIBSON, HURST, and DAVISON, JJ., concur. WELCH, C. J., and RILEY and ARNOLD, JJ., absent.