Southern Cotton Oil Co. v. Shore

“WalkeR, J., after stating the case: There was a petition in this Court for a certiorari to bring up the evidence and the judge’s charge, which do not appear in the record, for the purpose of showing, as stated by counsel, the materiality of the 1th and 8th issues, if this Court failed to reverse the ruling upon plaintiff’s voluntary tender of a nonsuit. But in the view we take of the case it is unnecessary to consider the petition. A voluntary nonsuit is an abandonment of his cause by a plaintiff who allows a judgment for costs to be entered against him by absenting himself, or failing to answer when called upon to hear the verdict. 14 Cyc., 393. Plaintiff also may elect to enter a nonsuit, and this may be done at any time before the verdict is rendered. Under the early English practice the plaintiff had a right to be nonsuited at any stage of the proceedings he might prefer, and thereby reserve to himself the power of bringing a fresh action for the same subject-matter; and this right continued to the last moment of the trial, even till after verdict rendered, or, where the case was tried by the court without a jury, until the judge had pronounced his judgment; but this practice was not adopted here, and was abolished in England by 2 Henry IV., ch. 7, as early as the year 1400. See 6 A. and E. PI. and Pr., p. 836 and note 4; 14 Cyc., 400; Washburn v. Allen, 77 Me., 344. The rule with us has been that the nonsuit may be taken at any time before verdict. It was said by Pearson, C. J., for the Court, in Graham v. Tate, 77 N. C., 120, 123: “A plaintiff can at any time before verdict with'draw his suit, or, as it is termed, ‘take a nonsuit,’ by absenting himself at the trial term. If he does so, and fails to answer, when called, by himself or by his attorney, the court directs a nonsuit to be entered, the cost is taxed against him, and that is. an end of the case. Even when the plaintiff appears at the trial, takes a part in it by challenging jurors, examining and cross-examining witnesses, and by the argument of his counsel, if he finds from an intimation of the court that the charge will be against him, he may submit to a nonsuit and appeal. This is every day’s practice. It is based upon the idea that the plaintiff announces his purpose not to answer when called to hear the verdict, and the advantage is that the plaintiff can have his Honor’s opinion reviewed, and should the decision of the Supreme Court be against him, he can commence another action; whereas if he allows a verdict to be entered, *56 it is conclusive unless set aside. Nay, according to tbe course of tbe court, tbe plaintiff is at liberty to take a nonsuit by announcing bis purpose to absent himself even after tbe judge bas charged tbe jury and their verdict is made up, provided be does so before tbe verdict is made known.” Our ca,se is much like that of Cahoon v. Brinkley, 168 N. C., 257. There six issues were submitted to tbe jury. Tbe last three issues were answered by tbe court with tbe consent of the parties. Tbe jury returned to tbe courtroom and stated that they bad not agreed on tbe first three issues, but one of tbe jurors remarked that they bad agreed or could agree on tbe first issue. Tbe court directed tbe jury to retire to their room and answer tbe first issue, if they bad agreed as to it, or could agree. They started toward tbe jury room, when plaintiff announced that be would take a nonsuit; but tbe court refused to permit him to do so, and be excepted. Tbe jury returned with their answer to tbe first issue. Tbe court received the verdict, withdrew tbe second and third issues, and entered judgment on tbe verdict as thus reformed. We held that tbe court erred in refusing tbe nonsuit, Justice Brown saying that “tbe plaintiff bad a right to submit to a judgment of nonsuit, -inasmuch as no verdict bad been rendered,” and tbe judgment was reversed because of tbe erroneous ruling. This case is not essentially different from that one. Eleven issues were submitted to tbe jury. They returned with all tbe issues practically answered, except those numbered 7 and 8. Tbe court told tbe jury to retire and consider issues 7 and 8 and to return when they bad answered them, “if they wished no change in any others.” It was at this time that tbe nonsuit was taken, or rather tendered, and refused. It is evident that when plaintiff chose to be nonsuited there bad been no complete verdict rendered, because tbe jury bad not answered all tbe issues, as they bad been instructed to do; and the judge at that time apparently so regarded it, for be “concluded thereafter” that issues 7 and 8 were immaterial, and be sent tbe jury back to their room with tbe direction to complete their verdict by answering tbe 7th and 8th issues, and to change tbe answers to other issues if they were so minded. This left tbe entire verdict within tbe control of tbe jury, except, perhaps, tbe issues answered by tbe court. They had tbe power to change the answers to tbe last two issues and award substantial instead of nominal damages. Tbe plaintiff did not know what bad been tbe answers of tbe jury to tbe issues 10 and 11, when it elected to be nonsuited, and they were tbe vital issues. Tbe cause of-action or liability of defendants bad already been established, and tbe remaining inquiry related to tbe amount of damages. So that tbe plaintiff bad no advantage of tbe defendant in that respect, having no superior knowledge as to tbe contents of tbe verdict; but if it bad, tbe fact remains that there bad been no verdict at tbe time it tried to *57 withdraw from the court by a nonsuit. Because the court may have afterward.s stated its view as to the materiality of issues 7 and 8 can make no difference in the result. The jury bad delivered no verdict, and the court had not accepted what they had done as a verdict, otherwise they would not have been told to retire and fill out their verdict, or change it if they wished to do so. There was no reason at that stage of the ca.se why the plaintiff should have become frightened and run away from the verdict. He knew that his cause of action was secure, and he was ignorant of what would be the damages. So far as then appeared to him, he could have gone on with the case in perfect safety. From some undisclosed motive he decided that it was better to withdraw, as he had the right to do. No harm has come to the defendant, except delay, for the plaintiff must pay the costs. The mere prospect of ánnoyance from a second litigation is not considered as legally prejudicial to defendant. Pullman Palace Car Co. v. Cent. Tr. Co., 171 U. S., 138 (43 L. Ed., 108). It is worthy of serious consideration whether issues 7 and 8 were not material or, at least, proper issues in view of the averment in the answer that the Enters were “commercially worthless”; but we will express no opinion upon this question until it becomes necessary to do so. We merely decide -the single proposition that, without any regard to the real or legal merits of the controversy, there was error in refusing the non-suit, and there must be a reversal of the judgment for this reason, with a direction to enter judgment .below upon the voluntary nonsuit, with costs in that court against the plaintiff. Reversed.