
    SPIES v. UNION PAC. R. CO.
    (Circuit Court of Appeals, Eighth Circuit.
    March 11, 1918.)
    
    No. 4984.
    1. Trial <g=>109 — Grounds por Direction op Verdict — Insufficiency op Opening Statement to Jury.
    If, after considering the statement to the Jury hy his counsel of plaintiff’s cause of action, and after giving counsel an opportunity to explain or modify it, the court is of opinion that the statement does not set forth facts sufficient to constitute a cause of action, It has the power to dismiss the case without prejudice, or to direct a verdict for defendant.
    2. Dismissal and Nonsuit <S=»7, 30 — Right to Dismiss Without Prejudice— Condition of Cause.
    A plaintiff may not dismiss without prejudice after a motion for a directed verdict has heen made and submitted, or after such a motion has been argued and the court has expressed its opinion upon it
    3. Dismissal and Nonsuit <S=>30 — Right to Dismiss Without Prejudice— Statutory Provision.
    Under Rev. St. Neb. 1913, § 7654, which provides that a plaintiff may dismiss an action without prejudice to a future action “before the iinal submission of the ease to the jury or to the court where the trial is by the court,” a plaintiff had the right to dismiss without prejudice, where the court had stated its opinion that the opening statement of counsel did not state facts sufficient to constitute a cause of action, but before any motion or suggestion for a directed verdict had been made.
    In Error to the District Court of the United States for the District' of Nebraska; Joseph W. Woodrough, Judge.
    Action at law by John J. Spies against the Union Pacific Railroad Company. Judgment for defendant, and plaintiff brings error.
    Reversed.
    W. D. Oldham, of Kearney, Neb. (T. J. Doyle, of Lincoln, Neb., on the brief), for plaintiff in error.
    A. G. Ellick, of Omaha, Neb. (Edson Rich, of Omaha, Neb., on the brief)', for defendant in error.
    Before SANBORN, Circuit Judge, and TRIEBER and YOU-MANS, District Judges.
   SANBORN, Circuit Judge.

The first question presented by this case is: Was the refusal of the court to permit the plaintiff to dismiss his case without prejudice to a subsequent action for the same cause erroneous? The statute whicli conditions the answer to this question is section 7654, page 2095, Revised Statutes of Nebraska 1913, and the part of it relevant to the issue here presented reads in this way:

“7051. See. 95. Dismissal Without Prejudice. — An action may be dismissed without prejudice to a future action:
“First By tile plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court.”

If, after considering the statement to the jury by counsel for the plaintiff of the latter’s cause of action, and after giving counsel an opportunity to1 explain or modify it, the court was of the opinion that, the statement did not set forth facts sufficient to constitute a cause of action, it had the power to dismiss the case without prejudice to another action, or to direct a verdict for the defendant on the statement, and it was the approved practice for it so to do. Oscanyan v. Arms Co., 103 U. S. 261, 263, 264, 26 L. Ed. 539; Butler v. National Home for Soldiers, 144 U. S. 64, 12 Sup. Ct. 581, 36 L. Ed. 346.

It is too late for a plaintiff to dismiss or to move to dismiss his case without prejudice to a subsequent action for the same cause, after a motion for a directed verdict has been made and submitted, or after such a motion has been made and argued, and the court has expressed its opinion upon it. Rhode v. Duff, 208 Fed. 115, 118, 125 C. C. A. 343, 346; Whitted v. S. W. Telegraph & Telephone Co. (D. C.) 217 Fed. 835, 837; Bee Building Co. v. Dalton, 68 Neb. 38, 39, 40, 41, 42, 93 N. W. 930, 4 Ann. Cas. 508; Fronk v. Evans City Steam Laundry Co., 70 Neb. 75, 96 N. W. 1053. But counsel for the plaintiff announced his dismissal of this case, or, if that be too strong a statement, moved to dismiss it, before any motion for a directed verdict had been made by the defendant, and before any suggestion had been made by the court that it was considering or intending to make such a direction. It was not until after plaintiff’s counsel had announced that, in view of the statement: of the court, he would dismiss the case without prejudice, that the first suggestion of a directed verdict was made. The only intimation prior to that announcement was the statement of the court that the impression he received from counsel’s statement of his case was that the only duty the court had to perform was to order the case dismissed; and the conclusion is that the motion of counsel for the plaintiff to dismiss his case without prejudice was made in due time/ and that it was error to deny it. This result renders the other question in the case immaterial.

Let the judgment below be reversed, and let the case be remanded to the court below, with directions to grant a new trial.  