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Roberts v. Morgan , 1973 Tex. App. LEXIS 2784 ( 1973 )


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  • 502 S.W.2d 31 (1973)

    Burton ROBERTS, Appellant,
    v.
    Wayne F. MORGAN et al., Appellees.

    No. 17464.

    Court of Civil Appeals of Texas, Fort Worth.

    November 16, 1973.
    Rehearing Denied December 7, 1973.

    Kelsey & Wood, and Curtis M. Loveless, Denton, for appellant.

    Lancaster Smith, Dallas, for appellees.

    LANGDON, Justice.

    Suit was instituted on September 5, 1972, by the plaintiff, appellant, in the County Court at Law of Denton County, Texas, to recover damages incurred in a collision. After the case proceeded to trial before a jury the defendants, appellees, moved for a directed verdict after appellant rested his case. The appellant was then permitted by the court to put on additional testimony, after which he moved for a non-suit. The court first granted and then denied appellant's motion for a non-suit and then entered a directed verdict for defendants, appellees, herein. This appeal is from the action of the court in refusing to grant a non-suit.

    We reverse and render.

    Rule 164, Texas Rules of Civil Procedure, provides that, "At any time before the jury has retired, the plaintiff may take a non-suit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief. When the case is tried by the judge, such non-suit *32 may be taken at any time before the decision is announced."

    In the case at bar the appellees did not seek any affirmative relief.

    It is settled law in Texas that when a suit is tried before a jury and the motion is made for an instructed verdict that the rule governing non-suit is the same as that applied in a case tried before the court without a jury, i. e., that non-suit may be taken at any time before decision is announced. Smith v. Columbian Carbon Co., 196 S.W.2d 660 (Beaumont Civ.App., 1946, reversed on other grounds at 145 Tex. 478, 198 S.W.2d 727).

    The rule in a case tried before a judge is liberally construed in favor of the right to take a non-suit. Luck v. Welch, 243 S.W.2d 589 (Fort Worth Civ.App., 1951, ref., n. r. e.).

    In the case at bar the appellant exercised his right for a non-suit before the announcement of the court's decision to grant the motion for directed verdict. Kinney v. Wiley, 224 S.W.2d 348 (Galveston Civ.App., 1949, no writ hist.). See also 20 Tex.Jur.2d 178, Sec. 3, et seq., and the cases cited thereunder. Also in this connection see Vol. 4, McDonald Texas Civil Practice (1971 Revised Volume) § 17.16.1, et seq., and the cases there cited.

    Since the record in this case reflects that the appellant exercised his right to take a non-suit prior to any decision being announced by the court the action of the trial court refusing to grant the motion for non-suit is reversed and judgment here rendered for the appellant.