S. Mitchell v. New England Marine Insurance

23 Mass. 117

• Court: Massachusetts Supreme Judicial Court
• Decided: March 25, 1828
• Status: Published

Opinion

Per Curiam.

We are not clear that the judge had a right to order a nonsuit in the present case. When a nonsuit is d - rected, the party is called, and if he appears when called, how can he be nonsuited ? There is in such case no contempt of Court. We are not certain that the same difficulty does not occur in England. In Watkins v. Towers, 2 T. R. 281, where it was alleged that there was a deficiency of evidence on the part of the plaintiff, and a motion was made to nonsuit him, Grose J. said, “ I should think that we could not order a nonsuit to be entered against the consent of the plaintiff.” In Aylett v. Lowe, 2 W. Bl. 1221, it was decided by all the court, that it was impossible to order a nonsuit to, be entered, unless by consent, after the plaintiff had appeared and a verdict had been taken. We should think that nonsuits have been entered rather by consent, upon the recommendation of the judge, either with a view to raise a question of law, or because the counsel were satisfied that the action could not be sustained.¹ If the defendants considered the production of the survey indispensable to a recovery by the plaintiffs, they should have requested the judge to instruct the jury to that effect, and then the question might have been properly brought before the whole Court. A motion to nonsuit was not correct in point of form. But if there was substantial ground for such application, the defendants should have a remedy. That the survey is a very important paper, though not conclusive evidence, cannot be doubted; 2 Pick. 263; and it is to be considered, what shall be the effect of its non-production. In Haff v. Marine Ins. Co. 4 Johns. R. 132, the surve7 had not been shown to the underwriters before the actian was commenced, and the question was, whether there had nQt fieen a deficiency 0f preliminary proof of the loss, and not whether the non-production of the paper at the trial was fatal; but the case was determined upon a special clause in the particular contract. This seems to be, in effect, an application for setting aside the verdict for the want of evidence necessary to sustain the action. On the part of the defendants was the testimony of one. of the surveyors, tending to show that the ship went' to destruction from natural decay ; and there was evidence to the contrary on the other side. On which side the evidence preponderated, it is not material to inquire, since this is not an application to set aside the verdict as being against the weight of the evidence. But the question is,. whether the production of the survey was indispensable ; and we think it was not.¹ The defendants had seen that document, and they had the benefit of it, and perhaps to a greater degree than if the paper itself had been produced. We therefore cannot grant a new trial.

Judgment according to verdict.

1 See 1 Stark. Ev. (5th Am. ed.) 471 to 473; Ward v. Mason, 9 Price, 291; Elworthy v. Bird, 13 Price, 222. But see Perley v. Little, 3 Greenl. 97; Sanford v. Emery, 2 Greenl. 5. If the plaintiff proves all that is laid in his declaration he ought not to be nonsuited. The only ground of nonsuit at the trial is, that the proof is not sufficient to support the declaration Safford v. Stevens, 2 Wendell, 158.

1 See 2 Phillips on Ins. 439; Robinson v. Clifford, 2 Wash C. C. R. 1