Hoover v. Odom, 250 N.C. 235 (1959)

April 29, 1959 · Supreme Court of North Carolina

250 N.C. 235

COVA ELLEN HOOVER v. MARY BETTY THOMAS ODOM.

(Filed 29 April, 1959.)

Trial § 25—

In a civil action, ¡the plaintiff against whom no counterclaim is asserted and no affirmative relief demanded may take a voluntary nonsuit and get out of count at any time 'before ¡vardlict, and it is error for the court to refuse to permit him to take a voluntary nonsuit and to enter a judgment of involuntary nonsuit.

Appeal by plaintiff from Johnston, J., November, 1958 Term, RANDOLPH Superior Oourt.

Civil -action to recover for personal injuries alleged to have been caused ¡by the actionable negligence of the defendant while plaintiff was riding in an -automobile owned and driven by -the defendant. The defendant, by answer, denied negligence and pleaded contributory negligence as a bar to .the plaintiff’s action.

At the close of the plaintiff’s evidence the defendant made -a motion for judgment of nonsuit. During the argument on the motion and “while counsel for the plaintiff bad ithe floor, he abruptly stated that he would take a voluntary nonsuit.” The trial judge, however, refused to permit the plaintiff to take a voluntary nonsuit and entered a judgment of involuntary nonsuit. From the judgment, the plaintiff appealed.

Don Davis, Ottway Burton for plaintiff, appellant.

Smith, Moore, Smith, Schell & Hunter, By: Bynum M. Hunter for defendant, appellee.

Per CuRiAM.

The rule is uniformly observed in this State that a plaintiff, in an ordinary civil action, againist whom no counterclaim is asserted and no 'affirmative relief is demanded, may take a voluntary nonsuit and get out of court at any time before verdict. Everett v. Yopp, 247 N.C. 38, 100 S.E. 2d 221. The judgment of involuntary nonsuit is, therefore, set aside. The cause is remanded to the Superior Count of Randolph County where judgment of voluntary nonsuit will be entered. '

Reversed and Remanded.