Opinion
47259
September 20, 1991
ORDER
VIRGINIA
In the Supreme Court of Virginia held at the Supreme Court Building in the City of Richmond on Friday the 20th day of September, 1991.
Present: Carrico, C.J., Compton, Stephenson, Russell, Whiting, Lacy, and Hassell, JJ.
Justice Russell participated in the hearing and decision of this case, and prepared the dissenting opinion, prior to the effective date of his retirement on July 1, 1991.
Record No. 901353 Circuit Court No. CL88-1015/F-49777
Upon an appeal from a judgment rendered by the Circuit Court of the City of Virginia Beach on the 13th day of July, 1990.
Upon consideration of the record, the briefs, and the arguments of counsel, the Court finds no reversible error in the judgment of the circuit court. The plaintiff suffered a voluntary nonsuit before the court sustained the defendant's motion to strike the evidence, Code Sec. 8.01-380(A). Newton v. Veney Raines, 220 Va. 947, 265 S.E.2d 707 (1980); Berryman v. Moody, 205 Va. 516, 137 S.E.2d 900 (1964).
Accordingly, the Court affirms the order of the circuit court granting the plaintiff a nonsuit. The appellant shall pay to the appellee thirty dollars damages.
In this negligence case tried to a jury, the plaintiff introduced her evidence and rested. The defendant made a motion to strike the plaintiff's evidence, which the court denied. The defendant then rested, without introducing any evidence, and renewed its motion to strike. After counsel argued the motion extensively, the court recessed the trial and retired to chambers to read certain cases cited by counsel.
The judge, having decided to grant the motion, then returned to the bench and began to explain his ruling, applying the applicable law to the facts in evidence. After this discussion had run to such length as to occupy three pages of the transcript, plaintiff's counsel interrupted the court in mid-sentence to say, "I'm going to take a nonsuit, Your Honor." The defendant objected on the ground that the nonsuit came too late, but the court granted the nonsuit and we awarded the defendant an appeal. This Court now, by order, affirms the trial court's ruling on the authority of Berryman v. Moody, 205 Va. 516, 137 S.E.2d 900 (1964) and Newton v. Veney Raines, 220 Va. 947, 265 S.E.2d 707 (1980).
Code Sec. 8.01-380(A) provides, in pertinent part:
A party shall not be allowed to suffer a nonsuit as to any cause of action . . . unless he does so before a motion to strike the evidence has been sustained or before the jury retires from the bar or before the action has been submitted to the court for decision.
In the present case, the jury had not "retired from the bar" because the case had not yet been submitted to the jury for decision. The final statutory provision applies only where the parties have submitted the case to the court, without the intervention of a jury, for final determination. Moore v. Moore, 218 Va. 790, 240 S.E.2d 535 (1978). It is inapplicable here because the jury had not been discharged at the time of the court's ruling, and if the motion to strike had been denied, the case would have gone to the jury for determination. Accordingly, we must focus only upon the first part of the statute, which prevents nonsuit after a motion to strike has been granted.
I must agree with the majority's conclusion that the rule in Berryman, which we followed in Newton, dictates an affirmance in this appeal. In Berryman, plaintiff's counsel interrupted the trial judge, who was announcing his ruling on a motion to strike, before the judge could utter such magic words as "the Page xv motion is granted." We held that a nonsuit was timely because the court had not yet pronounced the magic words. Berryman, 205 Va. at 519, 137 S.E.2d at 902. I part company with the majority because I consider Berryman to be poorly reasoned, and I would overrule it.
It is very helpful to counsel, litigants, and appellate courts when trial judges give careful, patient, and reasoned explanations of their rulings. It is not conducive to a good public perception of the administration of justice when rulings are made peremptorily and without explanation. Even if such rulings have been carefully considered, they may appear to be arbitrary snap judgments to litigants and spectators.
Berryman, however, penalizes a judge who attempts a rational explanation before making a ruling. The judge who does so may be subjected to the indignity of interruption, followed by the necessity of trying the case a second time. To avoid those risks, the judge must either utter the magic words at once, preferably speaking so rapidly as to preclude the possibility of interruption, appending an explanation later, or rule in swift monosyllables, omitting any explanation whatever.
When, in 1954, the proviso concerning motions to strike was added to the nonsuit statute, Acts 1954, c. 333, it is highly unlikely that the General Assembly intended to put a premium on the discourtesy of counsel interrupting judges in the course of rulings from the bench. Yet Berryman rewards counsel who interrupt judges and penalizes those who patiently await an appropriate opportunity to be heard. The race is to the swift.
This unfortunate rule encourages counsel to leap to their feet with a cry of "nonsuit" during a patient and thoughtful explication of a judicial ruling. It contributes to the public perception of a judicial proceeding as a sporting event rather than a reasoned search for truth under the rule of law. It is altogether unnecessary. The rule is based solely on the unfortunate interpretation given to former Code Sec. 8-220 by this Court in Berryman.
I would correct the rule by holding that the first proviso of Code Sec. 8.01-380(A) becomes effective, precluding a nonsuit, whenever the trial judge begins the articulation of a ruling on a motion to strike the evidence. No magic words should be required, and the form of phraseology selected by the judge should be immaterial. Interjections and interruptions would not be rewarded because they would be ineffectual.
True, the statutory proviso employs the present perfect tense: it precludes a nonsuit unless it is sought "before a motion to strike the evidence has been sustained," (emphasis added). Read literally, that language might imply that the court's ruling must have finality before a nonsuit would be precluded, contrary to the interpretation just suggested. But if this interpretation is at odds with a literal reading of the statute, so is Berryman. A court of record speaks only through its written orders; only written orders are final. Hill v. Hill, 227 Va. 569, 578, 318 S.E.2d 292, 297 (1984). An oral pronouncement from the bench does not have the effect of a written order, id., it is merely a direction to counsel or the clerk to prepare an appropriate written order for later entry. Berryman requires no written order, but merely the oral pronouncement of some unspecified magic words. We have made it abundantly clear, in Berryman, and particularly in Newton, that the statute is not to be read literally, and that an oral pronouncement of magic words will bar the right to a nonsuit. I would make no change except to eliminate the magic.
One cannot escape admiration for this Court's faithful adherence to the principle of stare decisis, which lends so much stability and predictability to the law. But even this Court has not hesitated to overrule its prior decisions when time has shown them to be ill-adapted to present conditions, unworkable in practice, or ill-considered. See, e.g., Watkins v. Commonwealth, 238 Va. 341, 351, 385 S.E.2d 50, 55-56 (1989), cert. denied, 494 U.S. ___, 110 S.Ct. 1797 (1990) (overruling Plymale v. Commonwealth, 195 Va. 582, 79 S.E.2d 610 (1954) and Wheeler v. Commonwealth, 192 Va. 665, 665 F.2d 605 (1951)); Wingate v. Coombs, 237 Va. 501, 507, 379 S.E.2d 304, 307 (1989) (holding that Henderson v. Hudson, 15 Va. (1 Munf.) 510 (1810)) and Walker v. Herring, 62 Va. (21 Gratt.) 678 (1872) had been overruled by Miller v. Ferguson, 107 Va. 249, 57 S.E. 649 (1907); Lentz v. Morris, 236 Va. 78, 82, 372 S.E.2d 608, 610 (1988) (overruling Short v. Griffitts, 220 Va. 53, 225 S.E.2d 479 (1979) and Crabbe v. School Board and Albrite, 209 Va. 356, 164 S.E.2d 639 (1968)); Holt v. Holt, 174 Va. 120, 131, 5 S.E.2d 504, 509 (1939) (conditionally overruling Hampton v. Hampton, 87 Va. 148, 12 S.E. 340 (1890)).
There is no valid reason why an error, once committed, should be enshrined forever, to the detriment of future generations, like Sir Francis Bacon's proverbial fly in amber. Therefore, I would overrule Berryman and Newton and reverse the order of nonsuit.
"Whence we see spiders, flies, or ants, entombed and preserved for ever in amber, a more than royal tomb, although they are tender substances and easily dissipated." F. Bacon, 1561-1626, "Historia Vitae et Mortis" 156 (J. Spedding trans. The Works of Francis Bacon vol. X 1872).
This order shall be certified to the said circuit court.