[250 U.S. 473, 474] Mr W. L. Welborn, of Roanoke, Va., for petitioner.
Messrs. G. A. Wingfield and H. T. Hall, both of Roanoke, Va., for respondent.
Mr. Justice McREYNOLDS delivered the opinion of the Court.
Claiming under the federal Employers' Liability Act (Act Ar il 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 8657-8665]), petitioner sued the Virginian Railway Company in the United States District Court, Western District of Virginia, for damages on account of personal injuries suffered by him July 27, 1915
At conclusion of the testimony the railway company moved for a directed verdict; after consideration the trial judge read to counsel an opinion giving reasons and announced his purpose to grant the motion.
Judgment thereon was affirmed by the Circuit Court of Appeals. 244 Fed. 397, 157 C. C. A. 23. Petitioner there urged that the trial court erred (1) in directing a verdict for the defendant, and (2) in denying the plaintiff's request to take a voluntary nonsuit. Both claims were denied and are renewed here. [250 U.S. 473, 475] We think refusal to permit the requested nonsuit was error and for that reason the judgment below must be reversed. This makes it unnecessary to consider the other point.
The Act of June 1, 1872-the Conformity Act (R. S. 914, c. 255, 5, 17 Stat. 197 [Comp. St. 1537])-provides:
Construing the statute in Nudd et al. v. Burrows, Assignee (1875) 91 U.S. 426, 441 , 442 S. (23 L. Ed. 286), this court said:
See, also, Indianapolis & St. Louis R. R. Co. v. Horst, 93 U.S. 291 , 300.
At the common law, as generally understood and applied, a nonsuit could be taken freely at any time before verdict if not indeed before judgment. Confiscation Cases, 7 Wall. 454, 457; Derick v. Taylor, 171 Mass. 444, 445, 50 N. E. 1038; Bac. Abr. Nonsuit (D). And see Pleasants v. Fant, supra, 22 Wall. 122. The right is substantial. When and how it may be asserted we think are questions relating directly to practice and mode of proceeding within intendment of the Conformity Act.
Section 3387 Virginia Code (1904) provides:
Prior to this provision, a plaintiff there had the absolute right to take a [250 U.S. 473, 477] voluntary nonsuit at any time before verdict. Harrison v. Clemens, 112 Va. 371, 373, 71 S. E. 538. Chapter 27, Va. Acts 1912, directs:
And chapter 42, Idem, provides:
Citing Parks v. Ross, 11 How. 362, 373, and Richardson v. City of Boston, 19 How. 263 (see also Schuchardt v. Allen, 1 Wall. 359, 370), petitioner maintains that in the federal courts the practice of directing verdicts has superseded the demurrer to evidence and should be controlled by the same general principles. Therefore, it is said, the statutory rule which gives the judge discretion to allow or refuse a nonsuit after joinder in such a demurrer applies when there is a motion for directed verdict.
Obviously the laws of Virginia recognize a marked distinction between demurrer to evidence and direction of a verdict-the former is permitted; the latter is expressly prohibited. And the different nature and effect of the two things has been pointed out in Oscanyan v. Arms Co., supra, 103 U.S. 264 ; Central Transportation Co. v. Pullman's Palace Car Co., 139 U.S. 39 , 11 Sup. Ct. 478; and Slocum v. New York Life Insurance Co., 228 U.S. 364, 388 , 33 S. Sup. Ct. 523, Ann. Cas. 1914D, 1029. The conclusion announced in Parks v. Southern Ry. Co., 143 [250 U.S. 473, 478] Fed. 276, 277, 74 C. C. A. 414, that, because federal courts may in proper cases direct verdicts, therefore, in the exercise of sound discretion, they may deny an application for leave to take a nonsuit and direct verdict for defendant, is not well foundd .
Under the Virginia statute, in the absence of a demurrer to the evidence and joinder therein, the plaintiff may take a nonsuit at any time before submission of the case to the jury and their retirement. The conformity statute gives the same right in federal courts. This conclusion accords with opinions by the Circuit Courts of Appeals for the Sixth, Seventh, and Eighth Circuits. Knight v. Illinois Central R. R. Co., 180 Fed. 368, 103 C. C. A. 514; Meyer v. National Biscuit Co., 168 Fed. 906, 94 C. C. A. 335; Chicago, M. & St. P. Ry. Co. v. Metalstaff et al., 101 Fed. 769, 41 C. C. A. 669.
The judgment below must be reversed, and the cause remanded to the District Court, with direction to set aside the judgment in favor of respondent and sustain motion to enter a nonsuit. Knight v. Illinois Central R. R. Co., supra, 180 Fed. 374, 103 C. C. A. 514; Harrison v. Clemens, supra, 112 Va. 374, 375, 71 S. E. 538.