Fenner Beane v. Nelson , 64 Ga. App. 600 ( 1941 )

I concur in the conclusion that it appears from all the evidence that the plaintiff is not entitled to recover, and that there appears no error in the direction of the verdict for the defendant. In reply to the suggestion that a nonsuit would lie only at the completion of the plaintiff's evidence, and therefore would not lie after the defendant had introduced evidence and the case had been closed, there appears no authority to the effect that a nonsuit may be granted only at the end of the introduction of the plaintiff's evidence, but in decisions of the Supreme Court it seems to be recognized that a nonsuit may be granted upon the introduction of all testimony in the case, both by the plaintiff and by the defendant, if it appears from all the testimony that the plaintiff has not proved his case as laid. See Battle v. Royster Guano Co., 155 Ga. 322 (118 S.E. 343); Murphy v. Ga. Ry. El. Co.,4 Ga. App. 522 (61 S.E. 1133). In the latter case it was said: "In the usual progress of a trial the time for the moving and for the granting of a nonsuit is when the plaintiff first rests his case; but when, as in the present instance, nonsuit has not been granted at that time, and the subsequent course of the trial retains or takes on such shape and condition that the evidence remains or becomes wholly and absolutely in conflict with the pleadings, the court may, without error, refuse the plaintiff the privilege of going to the jury, and may end the case by a judgment of dismissal, in the nature of a nonsuit." In Grand Rapids School Furniture Co. v.Morel, 110 Ga. 321 (35 S.E. 312) it was held: "If when a plaintiff closed his testimony it appeared that he had failed to make out a prima facie case, a motion to nonsuit should have been granted. Where, however, such a motion was made and erroneously overruled, and the defendant then introduced testimony which the plaintiff met with other testimony in rebuttal, and it still appeared, in view of all the evidence, that the plaintiff was not entitled to recover, and the court thereupon recalled its original decision on the motion to nonsuit and dismissed the plaintiff's action, the judgment will not be reversed, though the better practice would have been to direct a verdict in favor of the defendant."

It is thus conceded that a nonsuit may be granted after all the evidence is in. See also Kelly v.Strouse, 116 Ga. 872, 894 (43 S.E. 280); Watson v.Barnes, 125 Ga. 733 (54 S.E. 723); Gowen v. New OrleansNaval Stores Co., 157 Ga. 107 (120 S.E. 776); Cook v.Attapulgus Clay Co., 52 Ga. App. 610 (184 S.E. 334), and cit.; 9 Rawle C. L. 203-205, § 20. In Massoud v.Lamar, Taylor Riley Drug Co., 18 Ga. App. 398 (89 S.E. 442), which had reference to a case coming out of the municipal court of Atlanta, wherein it was stated that it was "not proper to award a nonsuit after both the plaintiff and the defendant have introduced evidence" and that the award of a nonsuit in that court was erroneous, the ruling that it was not proper to award a nonsuit after the plaintiff and defendant had introduced evidence was obiter in that it was error under any circumstances to grant a nonsuit in the municipal court of Atlanta. See Shippey v. Owens,17 Ga. App. 127 (86 S.E. 407), cited in the Massoud case, where it was held: "The municipal court of Atlanta is without express authority to award a nonsuit, and there is nothing in the act creating that court from which the grant of the power to award a nonsuit is necessarily to be implied."

While the plaintiff also contended before the court, and in assignment of error in the bill of exceptions, that the verdict for the defendant was improperly directed, because the evidence authorized a verdict for the plaintiff, the plaintiff also, on the trial, as appears in the motion for new trial, objected to the motion of the defendant to direct a verdict for the defendant, upon the ground that the plaintiff's case should be dismissed, and assigns error in the bill of exceptions upon the direction of a verdict, on the ground that the court should have either granted a nonsuit or dismissed the case. It does not appear that the verdict for the defendant was directed without an opportunity having been afforded the plaintiff to voluntarily dismiss the case. Had it appeared that such opportunity had not been given to the plaintiff, a different question would be presented, and it might be that the court erred in directing a verdict for the defendant instead of granting a nonsuit. In Gowen v. NewOrleans Naval Stores Co., 157 Ga. 107 (120 S.E. 776), the Supreme Court, on exceptions by the plaintiff to the direction of a verdict for the defendant, made at the close of the plaintiff's evidence, where the verdict was directed without the plaintiff having been given an opportunity to dismiss the case, affirmed the judgment with direction that the plaintiff "have leave to vacate the verdict and substitute therefor a judgment of nonsuit." While this ruling was made in a case in which a verdict was directed at the close of the plaintiff's testimony, it would be equally applicable to a case where after the introduction of testimony by the defendant the case had closed, if under the law a nonsuit should have been granted rather than a verdict for the defendant directed. However, it does not appear in the present case that the court erred in directing a verdict for the defendant.