Spies v. Union Pac. R.

250 F. 434 | 8th Cir. | 1918

SANBORN, Circuit Judge.

Mr. Spies, the plaintiff below, the driver of an automobile, brought this action for damages which he alleged he sustained by reason of a collision of the automobile at a street crossing with a motor passenger car which the railroad company was running across the street on one of its tracks. He averred that the collision and his damages were caused by the negligence of the company ; the latter denied this allegation, and insisted that the negligence of the plaintiff was the cause of the collision and injury. The case came on for trial before a jury, and Mr. Oldham, one of the counsel" for the plaintiff, made his opening statement of the facts of the case to them. At the close of that statement the court first said to him that his impression, from the statement he had made, was that he could not maintain the action, that the duty of the court was to order the case dismissed, but that, if he was wrong, he would like to be shown. Thereupon Mr. Doyle, another of the counsel for the plaintiff, and Mr. Oldham, again stated the facts and argued their sufficiency to constitute a cause of action. But the court again expressed the opinion that the facts were insufficient, whereupon Mr. Oldham replied that, in view of the statement of the court, he would dismiss the cause without prejudice. The court, however, denied the plaintiff permission to dismiss his case in that way, and, after hearing further discussion of the sufficiency of the facts stated, directed the jury, over the objection and exception of the plaintiff, to return a verdict for the defendant. The judgment challenged by this writ of error is based upon the rulings which have been recited.

[1] The first question presented by this case is: Was the refusal of the court to permit the plaintiff to dismiss his case without prejudice to a subsequent action for the same cause erroneous? The statute whicli conditions the answer to this question is section 7654, page 2095, Revised Statutes of Nebraska 1913, and the part of it relevant to the issue here presented reads in this way:

“7051. See. 95. Dismissal Without Prejudice. — An action may be dismissed without prejudice to a future action:

“First By tile plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court.”

If, after considering the statement to the jury by counsel for the plaintiff of the latter’s cause of action, and after giving counsel an opportunity to1 explain or modify it, the court was of the opinion that, the statement did not set forth facts sufficient to constitute a cause of action, it had the power to dismiss the case without prejudice to another action, or to direct a verdict for the defendant on the statement, and it was the approved practice for it so to do. Oscanyan v. Arms Co., 103 U. S. 261, 263, 264, 26 L. Ed. 539; Butler v. National Home for Soldiers, 144 U. S. 64, 12 Sup. Ct. 581, 36 L. Ed. 346.

[2, 3] It is too late for a plaintiff to dismiss or to move to dismiss his case without prejudice to a subsequent action for the same cause, after a motion for a directed verdict has been made and submitted, or after such a motion has been made and argued, and the court has expressed its opinion upon it. Rhode v. Duff, 208 Fed. 115, 118, 125 C. C. A. 343, 346; Whitted v. S. W. Telegraph & Telephone Co. (D. C.) 217 Fed. 835, 837; Bee Building Co. v. Dalton, 68 Neb. 38, 39, 40, 41, 42, 93 N. W. 930, 4 Ann. Cas. 508; Fronk v. Evans City Steam Laundry Co., 70 Neb. 75, 96 N. W. 1053. But counsel for the plaintiff announced his dismissal of this case, or, if that be too strong a statement, moved to dismiss it, before any motion for a directed verdict had been made by the defendant, and before any suggestion had been made by the court that it was considering or intending to make such a direction. It was not until after plaintiff’s counsel had announced that, in view of the statement: of the court, he would dismiss the case without prejudice, that the first suggestion of a directed verdict was made. The only intimation prior to that announcement was the statement of the court that the impression he received from counsel’s statement of his case was that the only duty the court had to perform was to order the case dismissed; and the conclusion is that the motion of counsel for the plaintiff to dismiss his case without prejudice was made in due time/ and that it was error to deny it. This result renders the other question in the case immaterial.

Let the judgment below be reversed, and let the case be remanded to the court below, with directions to grant a new trial.