Clason v. Bird

4 S.C.L. 370

Opinion

Waties, J.,

delivered the opinion of the whole court, except

Smith, J., who dissented, and Geimke, J., who was absent,

The court is not authorized to nonsuit a plaintiff, unless he will consent to it, where there is any evidence to support the action, however feeble and unsatisfactory it may seem. The jury have a right to consider of, and pronounce upon its sufficiency. But where there is no evidence given, which can be legally applied in support of the action, the court ought to interpose, and prevent the jury from deciding on it; or rather relieve the jury from the trouble of investigating, and making up an opinion on such irrelevant and immaterial evidence. The case is the same where some evidence is given which is pertinent and proper as far as it goes, but which cannot be deemed sufficient to authorize the jury to find a verdict for the plaintiff, though the evidence should be most favorably understood for the plaintiff. As for example : where the action is tro-ver, and evidence is given of property in the plaintiff, but no evi. dence whatever to prove a conversion.

Motion rejected.