17 S.E.2d 328 | W. Va. | 1941
Proceeding under Code,
At common law a plaintiff had the right to take a non-suit at any time before verdict, and by analogy we would say that where a case had been submitted to the court in lieu of a jury, the right to take a non-suit continued up to the time the court announced its decision thereon. Our statute, Code,
The case before us is not one submitted to the court in lieu of a jury. Here, there was a regular jury trial, and motion to direct a verdict for one of the defendants heard out of the presence of the jury. Such a motion did not operate to submit the matter to the court in lieu of a jury. Such a course could have been taken only by waiver of a jury, or other agreement of the parties. The motion was one which the defendant had the right to make, and which the plaintiff was helpless to prevent. The mere making of the motion did not require plaintiff to elect as to whether she would test her case thereon, or submit to a non-suit. She had a right to await the action of the court before determining her course. She did determine her course promptly when the court announced its decision to sustain the motion. She had no opportunity to make her motion for a non-suit prior to the court's announcement that he would sustain the motion. However, it seems to have been understood, at least by counsel for plaintiff, that something more was required of the court before its action became effective, because the request was that before a verdict was directed, the plaintiff be allowed to take a non-suit. We think it is common trial practice that a plaintiff may take a non-suit after a court has indicated an intent to direct a verdict against him; that the court, in this case, did something more than merely indicate its decision, should not, in the circumstances, deprive the plaintiff of her common law and statutory right to take a non-suit. The announcement by the court that at the end of the trial the jury would be directed to return a verdict for the defendant should not be held to prevent the plaintiff from dismissing her action through the process of taking a non-suit, when motion therefor was made before the verdict was directed. Up to that very moment, plaintiff had the right to rely on her right to submit the case to the jury *634 unhampered by a peremptory instruction to find against her.
The right to take a non-suit within the limitations prescribed by our statute has been upheld by this Court in numerous decisions. It was upheld in Wilkes Ins. Agency v.Damron,
In this case plaintiff having indicated her desire to take a non-suit at the first opportunity given, she had the right to do so after the court had indicated its view, and before the court had made its decision effective by a direction to the jury. We think it clear under our decisions that her motion for a non-suit should have been sustained. Not being sustained at that time, it should have been made effective later by the setting aside of the verdict in favor of Jarrett, and the entry of an order making the non-suit effective.
We are cited a number of cases from other jurisdictions which, at first blush, would seem to be in conflict with these views, but an inspection of these cases indicates to us that the conflict, if any, is more apparent than real. Four cases are cited from the State of Washington. In that state there was a statute providing "In all cases tried in the superior court with a jury in which the legal sufficiency of the evidence shall be challenged, the court shall decide as a matter of law what verdict should be found, the court shall thereupon discharge the jury from further consideration of the case, and direct judgment to be entered in accordance with its decision." In Dunkle v. Spokane Falls N. Ry. Co.,
The motion of the plaintiff to set aside the verdict of the jury in favor of S. Clyde Jarrett, and to permit her to suffer a non-suit should have been sustained; and accordingly, the judgment of the circuit court is reversed and the case remanded.
Reversed and remanded. *637