McNeal v. Hunnicutt

Jordan, Judge. Mrs. Donnie McNeal brought a negligence action against O. W. Hunnicutt and Jay Smith to recover damages for injuries sustained by her when the automobile in which she was a passenger collided with a truck driven by the defendant Smith. The petition alleged that at the time of the collision Smith was operating the truck as an employee of Hunnicutt and was acting within the course and scope of his authority. The case proceeded to trial, and at the close of the plaintiff’s evidence, the trial court granted a nonsuit as to the defendant Hunnicutt, and to this judgment the plaintiff excepted, bringing the case to this court for review. The defendant in error moved to dismiss the writ of error for the reason that, after the nonsuit had been granted, the plaintiff had acquiesced in said judgment by electing to proceed with the trial of the case against the other defendant, a jury verdict being returned in favor of said defendant. These facts were certified as true by the trial judge in his order approving the bill of exceptions. Held: When, after the grant of a nonsuit as to one of two defendants in a joint action, the plaintiff acquiesces in such adverse judg [699] ment by electing to proceed with the trial of the case against the remaining defendant, pending such adverse adjudication, he will be held to have thereby abandoned the suit as against the defendant in whose favor the nonsuit has been granted; and on motion of said defendant the writ of error to this court will be dismissed since the plaintiff cannot complain of the order of nonsuit to which, by his conduct, he had assented. Wood v. Stevens, 144 Ga. 518 (87 SE 658); Vandiver v. Ga. R. & Power Co., 38 Ga. App. 59 (143 SE 455), and the decisions therein cited. Decided April 3, 1962. Al Jennings, O. L. Crumbley, for plaintiff in error. Anderson, Walker & Reichert, David A. Handley, contra. Writ of error dismissed. Nichols, P.J., and Frankum, J., concur.