Penn v. Georgia Southern & Florida Railway Co. , 129 Ga. 856 ( 1908 )

Lumpkin, J.

(After stating the foregoing facts.)

After the evidence for the plaintiff had been introduced, and her counsel had announced her ease closed, a motion was made for a nonsuit, and the court stated that he would grant it. Before the order was signed, counsel for the plaintiff moved the court to allow him to introduce further evidence, stating what it was. The court held that the motion came too late, and thereupon signed the order granting the nonsuit.

1-3. In an early case (McColgan v. McKay, 25 Ga. 631), it was said that “It is almost a matter of course to let in new evidence on a point, to save a nonsuit.”. This ruling was approved in Parker v. Fulton Loan and Building Association, 42 Ga. 451 (4), 456; and these two cases were cited in Pitts v. Florida Central & Peninsular R. Co., 98 Ga. 655, 661, 666. In Cushman v. Coleman, 92 Ga. 772 (4), it was said that “It is discretionary with the presiding judge whether he will reopen a case for the reception of more testimony after the plaintiff has closed and a motion for a nonsuit has been made and argued.” In that case, after the evidence for the plaintiffs had been closed, a motion for. a nonsuit made, and the court had announced his intention to grant it, the plaintiffs asked leave to introduce further evidence to avert the nonsuit. The court inquired of plaintiffs’ counsel if they'knew of this evidence before they announced closed, and, upon receiving the answer that they did, refused to permit the evidence to be introduced. It was held, that, under the circumstances, the plaintiffs were not entitled, as matter of right, to introduce the proposed evidence at this stage of the proceedings, and that the court did not abuse his discretion in refusing to allow it to be introduced. No reference was made to the cases above cited. See also Freyermuth v. South Bound R. Co., 107 Ga. 31; Brooke v. Lowe, 122 Ga. 358; Davis v. Chaplin, 110 Ga. 322; Bridger v. Exchange Bark, 126 Ga. 821, 824. Among these decisions there is no conflict, but, construed together, they are in harmony, and make up a complete rule.

It is common practice for the presiding judge, where counsel for the plaintiff in error has omitted evidence by accident, inadvertence, or even because of a mistake as to the necessity for offering a particular witness or particular evidence, to allow the ease to be reopened and additional evidence introduced in order to prevent a nonsuit. But this is not matter of arbitrary right on the part of plaintiff or his counsel. The judge has .a considerable discretion in the matter. It may be that counsel for a defendant has dismissed witnesses or changed his position, relying on the judge’s announcement, so that it would be unjust to allow a reopening of the case. Or the judge may be of the opinion that counsel are needlessly consuming time and experimenting in the ease rather than developing it; or other reasons may influence him, in the exercise of a sound discretion, in refusing a motion to reopen the case and allow additional testimony.

In the present case the presiding judge did not apparently exercise his discretion in denying the motion to allow the case to be reopened and additional evidence for the plaintiff to be introduced, or base such ruling on the facts of the particular case. He seemed to think, that, as matter of law, after he had orally announced that he would grant a nonsuit, it was too late to entertain a motion to permit additional evidence to be introduced. When the motion was first made by counsel, the judge said, “1 think it comes too late now.” After counsel had stated what he expected to prove, named the witness whom, he desired to examine, and stated that he had not intended to trifle with the - court, but had made an honest mistake in thinking that the evidence introduced was sufficient to make out a case authorizing a recovery, and had urged his motion to be allowed to introduce further evidence, the judge again said, “I think it is too late, and I will sign the order.” We construe this to mean that the judge did not refuse the motion as an exercise of discretion, but because be thought it was too late for it to be made. In this he erred. Until he had signed the order granting a'nonsuit, he still had control of the ease. It was not too late, as matter of law, for a motion to be made to allow the case to, be reopened for the introduction of further evidence. He was not precluded, by his oral announcement, from entertaining the motion and passing upon it on its merits.

4. The evidence introduced did not prove the allegations of the plaintiff, or make out a prima facie ease under any of the counts in the petition.

Judgment reversed.

All the Justices concur, except Holden, J., who did not preside.