Steenson v. Robinson

389 P.2d 27, 385 P.2d 738, 236 Or. 414

Opinions

O’CONNELL, J.

This is an action brought by an automobile passenger against Robinson, the driver of the automobile in which plaintiff was riding, and against Prindel, the driver of another automobile with which it collided.

Plaintiff alleged that he was a paying passenger and based his action against Robinson on the theory of ordinary negligence. Robinson was a minor. As an affirmative defense he disaffirmed the contract. Plaintiff demurred to the affirmative defense. The demurrer was overruled. Defendant Prindel set up the defenses of contributory negligence and assumption of risk. Plaintiff’s demurrer to these defenses was overruled.

After the trial defendant Robinson moved for an involuntary nonsuit on the ground that the complaint alleged ordinary negligence only and the affirmative answer established plaintiff as a guest passenger. The motion was granted.

Plaintiff, being unwilling to proceed against Prindel alone and wishing to appeal the ruling on the de murrer to defendant Robinson’s affirmative defense, moved for a voluntary nonsuit as to defendant Prindel. The motion was granted. Plaintiff then filed a. new action against defendant Prindel. Plaintiff then appealed from the judgment of involuntary nonsuit and from the judgment of voluntary nonsuit.

Both defendant Robinson and defendant Prindel move to dismiss the appeal. Both defendants rely upon Martin v. City of Ashland, 233 Or 512, 378 P2d 711 (1963), and Collins v. Lantz, 234 Or 268, 381 P2d 213 (1963), which held that a judgment which affects some of the parties only is not a final judgment and is not appealable.

We shall first consider defendant Robinson’s motion. When the judgment of involuntary nonsuit was entered in favor of Robinson it left Prindel in the case. But when plaintiff took a voluntary nonsuit as to Prindel the cause before the trial court was completely terminated. The rule applied in Martin v. City of Ashland, supra, and Collins v. Lants, supra, is designed to prohibit piecemeal appeals, i.e., an appeal which affects one defendant only when the action as to the other defendant is still before the trial court. In the case at bar, after plaintiff took a voluntary nonsuit as to Prindel there was no subsisting action as to either defendant. Therefore, the appeal from the judgment in favor of Robinson could not be regarded as inconsistent with the policy underlying the rule applied in the Martin and Collins cases. We hold, therefore, that defendant Robinson’s motion to dismiss the appeal is denied.

Prindel’s motion presents a different problem. The judgment which disposed of the cause against Prindel was entered as a result of plaintiff’s motion for a nonsuit. It is the general rule that" a party may not appeal from a judgment which he voluntarily requested.

Footnotes

•

①

Plaintiff contends, however, that the nonsuit was not voluntarily requested hut was, in effect, forced upon him by the trial court’s ruling on plaintiff’s demurrer to Prindel’s affirmative defenses of contributory negligence and assumption of risk. If the plaintiff takes a nonsuit because of a ruling which precludes recovery, it has been held that the judgment is not in fact voluntarily requested and, therefore, does not bar an appeal.② This is not the situation in the case before us. The trial court’s action in over ruling the demurrer to Prindel’s defenses did not preclude recovery. Therefore, the general rule is applicable and the appeal as to defendant Prindel must be dismissed.

Cases are collected in 23 ALR2d 664. The basis for the rule is well stated in Francisco v. Chicago & A. R. Co., 149 F 354, 359-360 (8th Cir 1906):

“* * * Courts are established and maintained to settle and terminate controversies * * *. A practice which permits a plaintiff to experiment with the courts and to harass the defendant interminably at will runs counter to the basic purpose of legal tribunals * * *. Yet this is the practice which a grave review of such nonsuits as that in hand would establish. Under it a plaintiff could introduce his evidence and try the Circuit Court to see whether or not it would sustain his action. If it granted a motion to instruct a verdict against him, he could procure from the court an involuntary nonsuit, then sue out a writ of error and try the appellate court, and, if it would not sustain his action, he could pay the costs, bring another action for the same cause, and continue his actions and experiments interminably. * * * [A]nd the demands upon these [appellate] courts for the decision of real and important issues are too grave and pressing to permit them to devote their time to litigation so frivilous. * * *

“* * * plaintiff is not the only party to a lawsuit who has rights. The defendant [has the right], * * * not only to a fair and impartial trial of the action against him, but to a final adjudication of the alleged cause which the plaintiff presents and to a termination of the litigation upon it. This right he can * * * never secure under the practice here proposed, for there is no limit to the number of actions on the same cause, or on the want of it, which the plaintiff may bring, review, and dismiss under it.”

•

Cases are collected in 23 ALR2d 664.