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RAYMOND v. COSTALLAS (01/03/50)

January 3, 1950

RAYMOND
v.
COSTALLAS, APPELLANT



Appeal, No. 157, Jan. T., 1949, from order of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1947, No. 3883, in case of Emidio Raymond v. Jack Costallas. Order affirmed.

COUNSEL

Thomas E. Comber, Jr., with him Pepper, Bodine, Stokes & Hamilton, for appellant.

Joseph G. Feldman, for appellee.

Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.

Author: Jones

[ 364 Pa. Page 88]

OPINION BY MR. JUSTICE JONES

This appeal arises out of an action for damages for personal injuries and raises the question whether the plaintiff's right to take a voluntary non-suit had expired when he sought to exercise it in the following circumstances.

When the jurors had returned to the court room after their deliberation on the case but before they had announced their readiness to render a verdict, the plaintiff moved for a voluntary non-suit. The learned trial judge refused to the motion, as having come too late, and noted the plaintiff an exception. Thereupon the clerk inquired, -- "Members of the jury, have you agreed on a verdict?" The foreman answered "Yes, we have" and, when asked by the clerk "Do you find for the plaintiff or for the defendant," he replied, -- "We find both equally guilty of negligence." The trial judge at once reinstructed the jury in pertinent regard, with specific reference to the form their verdict should take in case they found the plaintiff guilty of contributory negligence, and the jurors retired to deliberate further. Shortly thereafter they returned to the court room and, in response to the clerk's appropriate inquiries, gave a verdict for the defendant. The plaintiff then moved the court to set aside the verdict and included a renewal of his earlier

[ 364 Pa. Page 89]

    motion for a voluntary non-suit. Upon fuller consideration of the matter, the learned court granted the motion which is the action assigned for error by the defendant on this appeal.

Under existing law, the court below could not properly have done otherwise than it ultimately did with respect to the plaintiff's motion for a voluntary non-suit. The situation was governed by the Act of March 28, 1814, P.L. 248, 6 Sm. L. 208, Sec. 2 (12 PS ยง 649), which provides that "Whenever, on the trial of any cause, the jury shall be ready to give in their verdict, the plaintiff shall not be called, nor shall he then be permitted to suffer a non-suit." This enactment placed a restriction upon the rule at common law where a plaintiff could suffer a voluntary non-suit at any time before the jury's verdict had actually been recorded: see Evans's Administrator v. Clover, 1 Grant 164, 169 (1855).

The time when a jury is "ready to give in their verdict", within the intent of the statute, was early construed by Chief Justice GIBSON to be "... when, in reply to the usual inquiry of the prothonotary, [the jurors] have officially announced their readiness to the court" (Emphasis supplied): McLughan v. Bovard, 4 Watts 308, 315, 316 (1835). The learned Chief Justice cogently reasoned that a plaintiff's right to a voluntary non-suit could not justifiably be made determinable by a criterion so uncertain and of such varyingly difficult ascertainment as the exact point of time when the jurors actually become agreed upon their verdict. After specifying other compelling reasons in support of that view, Chief Justice GIBSON concluded by saying that it is highly important that the period of the termination of the right to a ...


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