Atlantic Ice & Coal Corp. v. Town of Decatur

Russell, C. J.,

specially concurring. I fully agree with the judgment of the court affirming the direction of a verdict by the trial judge. I dissent only from the ruling in the fifth headnote. What is said in the fifth headnote is not a ruling upon the merits of the case, but merely a directory order made as a matter of grace in the exercise of a discretion with which this court is clothed. That the Supreme Court has a right, in affirming a judgment upon a verdict, to give permission to a losing plaintiff to renew his suit as if it had been nonsuited instead of losing his case by verdict, is undoubted. Civil Code (1910), § 6205. Still, this undoubted power should be used with caution, sit finis litium; and I see no reason why the code section referred to should be applied in this case. We have sustained the action of the trial judge directing a verdict; but this judgment of the judge in directing a verdict can not be sustained (as we have sustained it) upon any other theory than that it was demanded by the evidence. The fact that a plaintiff may have failed to introduce evidence essential to recovery is not ordinarily considered a reason for granting him a second opportunity to make out his case. It is true that if evidence is introduced on'behalf only of the plaintiff, it would be more proper for the judge to award a nonsuit than to direct a verdict against the plaintiff. It is also true that in such a case complaint can properly be made that the verdict was directed, when merely a judgment of nonsuit should have been entered. However, there is no such complaint in any of the assignments of error in this case; and on the contrary the plaintiff insists that upon the evidence adduced a verdict should have been directed in its favor. There are many instances in which this court’s discretion to alter and remold a judgment which is affirmed may be wisely exercised so as to preserve the rights of the parties, and yet avoid the necessity of another trial. ■ In my opinion the power conferred on this court by the provisions of § 6205 should be sparingly applied even when the effect of a direction to the lower court will be to end litigation; and very much more rarely, if ever, should a litigant who “has had his day in court,” and has lost his case, be invited back to court at the expense of the taxpayers. I do not think this case presents such features as to invoke from this court relief dependent entirely upon the exercise of a purely discretionary power, and to the end that further litigation may be facilitated.