Dissenting Opinion
Achor, P. J.In my opinion the judgment of the trial court should be affirmed. Two major issues are involved. The first .relates to the sufficiency of the evidence; The second to. the overruling of appellant’s motion to dismiss. In my opinion there was no evidence or reasonable inference of negligence on the part of appellee. I am also of the opinion that pleadings and evidence do not establish an inference of negligence under the doctrine of res ipsa loquitur. The issue in dispute therefore became one of law and not of fact. It therefore became the duty of the court, on proper motion, to so inform the jury by a peremptory instruc*65tion. Holtz v. Elgin, etc., Ry. Co. (1951), 121 Ind. App. 175, 98 N. E. 2d 245.
The second major question is whether the court erred in overruling the motion to dismiss without prejudice. The proceedings, as they related to appellant’s motion to dismiss, are concisely stated in appellant’s brief as follows:
“At the close of all the evidence, defendant filed its written motion for peremptory instruction and retendered its instruction No. A. Thereupon the Court stated orally from the bench and in open court to the parties and their counsel, that defendant’s motion for peremptory instruction would be sustained. Counsel for plaintiffs requested the Court for permission to argue the motion and to submit legal authority against the sustaining of the motion. The Court summarily refused to hear the argument. Plaintiffs’ counsel thereupon and before the Court had entered its finding sustaining defendant’s motion, moved the Court for dismissal of the cause. Counsel for defendant objected to plaintiffs’ motion for dismissal. Thereupon and without further argument the Court entered of record its order sustaining defendant’s motion for peremptory instruction and let the record show chronologically that plaintiffs’ motion to dismiss was made after the ruling sustaining defendant’s motion for peremptory instruction. The Court then overruled plaintiffs’ motion to dismiss, summoned the jury and instructed the jury to return a verdict for defendant which was accordingly done.”
The majority opinion of the court, which holds that the court erred in overruling appellants’ motion to dismiss, is grounded primarily upon the case of Van Sant v. Wentworth (1916), 60 Ind. App. 591, 108 N. E. 975, and cases therein cited. In my opinion the decision in that case is neither supported by a reasonable construction of our statute (§2-901, Burns’ 1946 Replacement), nor is it grounded upon sound judicial principles, and should be reversed insofar as it constitutes precedent *66relative to the issues before us. The controlling statute is as follows:
“Section 2-901, Burns’ Anno. Statutes — Dismissal without prejudice. An action may be dismissed without prejudice — First. By the plaintiff, before the jury retires; or, when the trial is by the court, at any time before the finding of the court is announced.”
This was a trial by jury. However, the rule is now well established in this state that:
“. . . Where the court directs a verdict, it is not within the province of the jury to deliberate and determine what verdict shall be returned. In such case, its power is circumscribed by the court’s direction. McClaren v. Indianapolis, etc., R. Co. (1882), 83 Ind. 319. . . . Adams v. St. Louis, etc., R. Co. (1911), 137 S. W. 437 (Tex. Civ. App.), the court saying: ‘where a motion is made for an instructed verdict, as in this case, and the court decides that such motion should be sustained, the question of when the plaintiff can take a nonsuit must be determined by the provisions of the statute governing a case being tried before the court without a jury.’ ” Van Sant v. Wentworth, supra, page 593. (Our italics.) See also 53 Am. Jur. §1126, page 782, 112 A. L. R. 86.
It occurs to me that the Van Sant case, supra, having properly reached the above conclusion, proceeded thereafter to confuse the issue by discussing cases which were either not in point or were in conflict with the rule just affirmed. The Van Sant case seems to be grounded primarily upon the case of Adams v. St. Louis, supra. In that case the facts are almost identical to those in the case at bar, except that it does not appear that the judge stated his intentions, with regard to the motion for a directed verdict, to (1) both parties or their counsel, (2) in open court, (3) as a part of the regular proceedings in the cause, but, rather, it appears *67that the statement may have been made on the side to counsel for the plaintiffs only, merely as “. . . a preliminary statement by the judge indicating that his final decision would be, . . . elicited by an effort of her counsel to ascertain the mind of the court, . . . with a view of protecting the interest of his client. . . .” From these facts, it appears that neither the court nor the parties considered the statement in itself as constituting a binding announcement of the court’s decision but merely a “preliminary statement" as to the order the court would subsequently make.
Reference is made to Crafton v. Mitchell (1893), 134 Ind. 320, 33 N. E. 1032. In that case only special findings of fact and conclusions of law were made by the court. No general finding or conclusive decision was announced. Also, in the case of Mitchell v. Friedly (1891), 126 Ind. 545, 26 N. E. 391, by the same reasoning the motion to dismiss, after the general finding had been withdrawn, was proper. In the case of Gassman v. Jarvis (1899), 94 Fed. 603, the court held that an indication by the court of his intention to give a peremptory instruction to the jury was nqt such an announcement of its decision as to bar voluntary dismissal prior to the time they were actually “read to the jury.” If such an announcement was merely a voluntary expression of intention on the part of the court, not made as part of the regular proceedings in the case, then the decision might be entirely logical. However, if such an announcement is required, either by statute or by rule as in this state, and was so made in open court in the orderly .course of the trial, then, in my opinion, it was the announcement by the court of a decision which had the effect of withdrawing the case from the jury, and the fact that the jury had not yet been instructed was immaterial.
*68Cases from other jurisdictions are cited in the majority opinion which hold that the sustaining of a motion for directed verdict properly announced and recorded does not bar voluntary dismissal prior to the actual submission of the cause to the jury. Mullen v. Peck (1881), 57 Iowa 430, 10 N. W. 829; Vertrees’ Admr. v. Newport News, etc., Co. (1894), 95 Ky. 314, 25 S. W. 1; State v. Bridges (1946), 116 Ind. App. 483, 64 N. E. 2d 411; Chicago, M. & St. P. R. Co. v. Metalstaff (1900), 41 C. C. A. 669, 101 Fed. 769; Templeton v. Wolf (1853), 19 Mo. 101; Scott v. Reedy (1876), 5 Ohio Dec. Reprint 388, 5 Am. Law Review 367; Wood v. Norton (1884), 85 Mo. 298; Mutual Ben. Health & Acci. Asso. v. Tilley (1927), 174 Ark. 932, 298 S. W. 215. These cases are in conflict with precedent established in this state, that such a ruling withdraws the case from the jury and the-procedure is thereafter governed by the provision of the statute which refers only to trials by the court. McClaren, Admr. v. The Indianapolis and Vincennes Railroad Company (1882), 83 Ind. 318; Van Sant v. Wentworth, supra.
It occurs to me, therefore, that the remaining question we are required to adjudicate is whether or not the statement made by the court (1) constituted an announcement of a full and final “decision” upon all the issues affecting appellant’s right of recovery, or (2) was it merely an intimation or preliminary statement regarding what the decision would be when “the finding of the court is announced.” §2-901, supra. If made under the second set of facts it was admittedly ineffectual and appellant was entitled to dismiss his action without prejudice. On the other hand, if the announcement was made under the first set of circumstances, its effect was to put at rest all issues in the case. Except for prescribed perfunctory procedure and the *69formality of the record, the case was closed. Deliberation by both the jury and the court was at an end.
It is true that the court, in announcing his decision regarding appellee’s motion for peremptory instruction, used the language “I am going to sustain their motion for a directed verdict,” which is in the future tense. However, as heretofore stated, the announcement was made following the filing of a written motion, during the regular course of the trial, “from the bench in open court to the parties and their counsel.” The court refused to hear argument and without entertaining appellant’s oral motion to dismiss, “thereupon . . . entered of record its order sustaining defendant’s motion for peremptory instruction.” Although couched in language of the future tense, it seems apparent that under the circumstances in which it was made both the court and the parties considered it the statement of a present and final “announcement” of the decision of the court upon the motion for a directed verdict. This decision disposed of all the issues in the case.
It is a fundamental concept of Anglo American-law that each individual is entitled to a “day in court” for the settlement of his disputes and that the parties having been given that opportunity to present their cause are bound by the decision of the court as announced, that thereupon the issues shall be put at rest and that defendant, if successful in his defense of the action, shall not be harassed by or subjected to the loss and inconvenience of a subsequent trial on the same issues.
Thereafter to permit the plaintiff to withdraw his case without prejudice, with right to refile, would give him an advantage which would be manifestly unfair.
NOTE. — Reported in 114 N. E. 2d 887.