
    JOHN STOCKWELL v. INTER-ISLAND STEAM NAVIGATION COMPANY, LIMITED, AN HAWAIIAN CORPORATION.
    Reserved Question from Circuit Court, First Circuit.
    Argued June 23, 1914.
    Decided July 3, 1914.
    Robertson, O.J., and "Watson, J.
    
      Judgment — nonsuit.
    A judgment of nonsuit is no bar to another action for tbe same cause. Yivas v. Aswan, 11 Haw. 282.
    
      Same — nonsuit—res adjudicata.
    
    A judgment of nonsuit is not an adjudication on tbe merits but leaves tbe parties in tbe same condition, so far as tbe cause of action is concerned, as tbougb no action bad been instituted, and bence cannot constitute res adjudicata.
    
   OPINION OP THE COURT BY

WATSON, J.

Action on the case to recover damages for personal injuries. Defendant pleaded (1) the general issue and (2) a judgment of nonsuit entered in a former suit upon the same cause of action by the plaintiff against the defendant. Demurrer to the second plea that the same is insufficient in law to constitute a defense or bar to plaintiff’s cause of action. Joinder in demurrer and the lower court reserved for the consideration of this court the question, should the demurrer be sustained. Mr. Justice Quarles being disqualified, it was stipulated in writing between the parties that the case should be submitted for decision to the two remaining justices and that their decision should be binding on the parties.

The question thus presented, whether or not a judgment of nonsuit constitutes a bar to another action between the same parties for the same cause of action, was passed on hy this court in the case of Vivas v. Aswan, 11 Haw. 282. There the court held unqualifiedly that a judgment of nonsuit is no bar to another action for the same cause, citing among other authorities Morgan v. Bliss, 2 Mass. 111; Bridge v. Summer, 1 Pick. 371; Ensign v. Bartholomew, 1 Met. 274. Defendant contends that the decision in the Aswan case should not be regarded as controlling in the case at bar for the reason that it did not appear in that case that the judgment of nonsuit was.granted on the merits, whereas in the instant case the plea in bar alleges that the judgment of nonsuit “was on the merits of said former action.” This court having adopted in the Aswan case the rule laid down by the Massachusetts cases, and that rule having become the general understanding of the profession in this jurisdiction, we should hesitate to depart therefrom unless it clearly appeared that the rule thus announced is erroneous. In at least two of the cases relied on by the court in arriving at its conclusion in the Aswan case the rule is expressly declared that a judgment rendered on a nonsuit on the merits is no bar to a future action for the same cause. Morgan v. Bliss, supra; Bridge v. Sumner, supra. The doctrine that a judgment of nonsuit is no bar to another action for the same cause is in harmony with the overwhelming weight of authority. 1 Freeman on Judgments, Sec. 261 . Mr. Black, in his work on Judgments, 2 ed., Sec. 699, says: “It is a settled and inflexible rule that a judgment of nonsuit is not a judgment upon the merits and therefore is no bar to another suit upon the same cause of action.” And again in section 703 lie says: “A judgment of dismissal may also be asked for on tbe trial at tbe conclusion of tbe plaintiff’s evidence in chief. And tbe granting of such a motion can have no greater effect upon tbe cause of action than an involuntary nonsuit entered at tbe same stage. * * * Hence, tbe cases bold that tbe dismissal by tbe court of an action at law, while tbe same is on trial and before its final submission, upon tbe ground that plaintiff has failed to establish bis cause of action, is not a final determination on tbe merits, and therefore not pleadable against another action for tbe same cause.” In 24 A. & E. Enc. Law, 2 ed. 801, this same rule is stated as follows : “It is well settled in tbe United States that a judgment of nonsuit or in tbe nature of a nonsuit is not an adjudication upon the merits, but leaves tbe parties in tbe same condition, so far as tbe cause of action is concerned, as though no action bad ever been instituted, and hence cannot constitute res judicata.” Tbe doctrine thus announced in tbe text is supplemented by a long list of authorities cited in tbe foot note which, we deem it unnecessary to reproduce here. For later cases supporting tbe same doctrine see 4 Suppl. A. & E. Enc. Law 613, note 1. See also Manhattan Life Ins. Co. v. Broughton, 109 U. S. 121; Gardner v. Michigan etc. R. R., 150 U. S. 356; case notes Lea v. Lea, 96 Am. Dec. 778; Cartin v. South Bound R. R. Co., 49 Am. St. Rep. 831. It has been held that a judgment of non-suit, even on an agreed statement of facts, cannot be pleaded in bar of a new suit. Derby v. Jacques, Fed. Cas. No. 3817; Homer v. Brown, 16 How. (U. S.) 354. “Tbe difference between a compulsory nonsuit and a directed verdict for tbe defendant is matter of form rather than of substance, except that in case of tbe former a new action may be brought, while in tbe case of a directed verdict and judgment thereon tbe action is ended unless a new trial is granted upon motion or on appeal.” Board of Com’rs. v. Home Sav. Bank, 200 Fed. 28, 35, and cases cited; Oscanyan v. Arms Co., 103 U. S. 261, 264. In support of bis contention that a judgment of involuntary nonsuit rendered, on the merits is a bar to a subsequent suit upon tbe same cause of action, counsel for tbe defendant relies strongly upon the case of Ordway v. Boston & Maine R. R., 69 N. H. 429. In 24 A. & E. Enc. Law, 2 ed. 801, supra, tbe Ordway case is tbe single case cited as at variance with tbe general rule laid down in tbe text that a nonsuit is not a bar to another action for tbe same cause. Erom a careful reading of that case we can but believe that tbe courtj if not controlled, was largely influenced by tbe statute of tbe State of New Hampshire then in force, referred to on page 436, it being conceded by tbe court (p. 431) that by tbe doctrine of authorities “it is a settled and inflexible rule of law that a judgment of nonsuit is not a judgment upon tbe merits, and therefore it is no bar to another suit upon tbe same cause of action.” We are of tbe opinion that tbe rule laid down in tbe Aswan case, supra, is correct and in accord with tbe great weight of authority. Eor that reason tbe reserved question should be answered in the affirmative, and it is so ordered.

L. Andrews for plaintiff.

E. W. Sutton (Smith, Warren, Hemenway & Sutton and J. W. Oathcart on tbe brief) for defendant.  