Our nonsuit statute is a remedial one, and should be liberally construed. In its early history it was so construed as against a similar contention upheld by the majority opinion here as is illustrated in the case of Blackburn v. Minter,22 Ala. 613, where counsel for appellee insisted (to use his language) "that the nonsuit contemplated by the Act of 1846 is one which the plaintiff is compelled to take" (italics supplied), and to which insistence the court replied as follows:
"The construction heretofore put upon the statute allowing a plaintiff to take a nonsuit, and have any question of law that may be ruled against him reviewed in that way * * * is adverse to the limited view of its operation urged upon us by defendant in error, in support of his motion to dismiss. We prefer to follow the construction and practice hitherto adopted." (Italics supplied.)
And in Duncan v. Hargrove, 22 Ala. 150, the statute was construed "to mean those cases in which the plaintiff, by the adverse ruling of the court on pleadings or evidence, has become satisfied that he cannot recover, and therefore takes a nonsuit to avoid a verdict against him," thus showing that the necessity referred to in the statute is one determined by the plaintiff. Other cases use the expression, referring to the adverse rulings as having "superinduced" the nonsuit.
This liberal construction has followed the statute through all the years until the instant case, as illustrated in the comparatively recent case of Bush v. Russell, 180 Ala. 590,61 So. 373, wherein the court said:
"The necessity contemplated was shown when it was made to appear * * * by reason of the adverse ruling that he could not recover, and therefore took a nonsuit, not voluntarily, but in order to avoid a verdict against him."
The authoritites cited in the majority opinion do not to my mind in the least tend to shake these decisions, and certainly were not intended as modifying in any manner the liberal construction of the statute recognized from the very earliest history of the statute, as shown by the above-cited authorities. The construction of the statute in the instant case is a very strict construction, the *Page 156 tendency of which is to narrow considerably its scope and effect. This statute, in my opinion, by this decision has been most seriously, if not fatally, wounded. I thought it a good statute, serving a useful purpose, and therefore respectfully dissent.
SAYRE and BOULDIN, JJ., concur in the foregoing dissent.