Ferrera v. Parke

Strahan, J., delivered tbe opinion of tbe court. Tbe journal entry disposing of this cause in tbe court below recites tbat after tbe plaintiff bad introduced bis evidence in chief, and tbe defendants their evidence in chief, and tbe plaintiff bis evidence in rebuttal, and the plaintiff having announced tbat be bad no more evidence to offer, tbe defendants filed their written motion for judgment of non-suit, which was duly argued and submitted to tbe court, and by tbe court sustained, and then follows tbe usual judgment of non-suit which awards costs to tbe defendants. Tbe practice on this subject in this State is regulated by section 246, Hill’s Code, which pro vides: “A judgment of non-suit may be given against tbe plaintiff as provided in this title— * * * 3. On motion of tbe defendant, when tbe action is called for trial, and tbe plaintiff fails to appear, or when after tbe trialbas begun, and before tbe final submission of tbe cause, tbe plaintiff abandons it, or when upon tbe trial tbe plaintiff fails to prove a cause sufficient to be submitted to tbe jury.” Under this section of tbe Code tbe test is, whether or not tbe plaintiff’s evidence tends to prove a cause sufficient to be submitted to a jury; and in passing on this question [144] the evidence submitted by the defendant, if any, cannot be considered for any purpose, for the reason that if it is necessary for the defendant to meet the plaintiff’s case by evidence, then the case becomes one for the jury and could not be withdrawn from them in this summary manner. This view has been steadily maintained by this court in every case in which the question has arisen. In Grant v. Baker, 12 Or. 329, this court said: “To authorize the court to non-suit a plaintiff, the latter must fail to prove a cause sufficient to be submitted to a jury It must be such a case, that if the jury were to find a verdict for the plaintiff, the court would be required to set it aside for the want of evidence to support it. Civil Code, §§ 243, 244. It would have to be a case where there was a total failure of proof of some material allegation of the complaint.” * * * So in Salmon v. Olds, 9 Or. 488, it was held that a defendant was not entitled to a non-suit, where, upon the pleadings and evidénce introduced, a prima facie case has been made out against him. So also in Tippin v. Ward, 5 Or. 454. it was held that a case should be submitted to the jury, unless there is an entire lack of evidence tending to maintain the issues on the part of the plaintiff; or unless upon the whole case made by the plaintiff himself it appears beyond doubt that the plaintiff has no right to recover; and the same principle was applied in Southwell v. Beezley, 5 Or. 459. Prima facie the plaintiff made a case sufficient to be submitted to the jury. He showed the delivery of his property to the defendants for a particular purpose, gave testimony tending to prove its value, a demand on the defendants for its return, and their failure to return it. The jury had the right to pass on this evidence and to say under proper instructions of the court whether or not the plaintiff was entitled to a verdict. He was, unless the effect of this evidence was countervailed in some way by the defendants, and they presented another question proper for the jury to consider. The defendants set up that the property was lost while it was in their custody. Whether the [145] defendants bad the right to send said property to San Francisco, whether it was lost, and if so was it under such circumstances as would exonerate the defendants from all liability, were all questions presented by the defendants, and they were for the jury under proper instructions by the court. The learned counsel for the respondents, in support of the practice adopted in the court below, cites Jansen v. Acker, 23 Wend. 481; Rudd v. Davis, 3 Hill, 287 S. C. 7 Hill, 529; People v. Cook, 8 N. Y. 67;1 Somer v. Meeker, 25 N. Y. 361; Geary y. Simmons, 39 Cal. 224. These authorities certainly do tend very strongly to support the respondents’ contention, but they are at variance with what has already been settled in this court. The particular statutes under which these cases were decided, if any, were not brought to our notice ; and if there were no statutes governing such practice, and those cases simply announced the general course of procedure in those States, the cases could not be accepted as controlling authority in this State. 4. Respondents’ counsel has criticised the complaint, and doubtless it would have been more in harmony with the spirit of code pleading if it had alleged, amongst other things, the delivery of this property to the defendants, and the object of such delivery, etc., and the defendants’ failure to return it; but the defendants have supplied that by an “express aider” in their answer. Bliss Code Pl. § 437. These allegations are contained in the defendants’ answer, with the further matter designed to excuse such failure. These are questions which should have been tried out before that jury, upon the merits of which we indicate no opinion at this time, but reverse the judgment and remand the cause for a new trial. Footnotes [1] (1) 59 Am. Dec. 451.