King v. Hercules Powder Co.

LENNON, P. J.

This is an appeal by the plaintiff from a judgment for a nonsuit. The action was brought for conversion of two Perdieron mares, and for injuries inflicted, resulting in the death of one and permanent damage to the other. The action was originally brought against the present defendant and against the Hercules Water Company, J.

[224]

O’Neill, J. Fassler, and certain fictitious defendants. None of the defendants, other than the Hercules Powder Company, were ever served, and at the time of the trial, plaintiff dismissed as to all the other defendants. The defendant, Hercules Powder Company, filed an answer denying that it had ever taken and used the mares, or in any way injured them. At the conclusion of plaintiff’s case, defendant moved for a non-suit, which motion was denied. After all the evidence was in, the defendant again moved for a nonsuit, which was this time granted on the ground that if the horses were used, they were used by one O’Neill, or his agents, and that O’Neill was an independent contractor.

The appellant contends that the case should have been submitted to the jury, and that the granting of the nonsuit was error. We think the motion was properly granted. It is settled law in this state that such a motion oan be granted at the end of all of the testimony in a case.

(Geary

v.

Simmons,

39 Cal. 224;

Estate of Morey,

147 Cal. 495, [82 Pac. 57].)

The rule is expressed in

Geary

v.

Simmons, supra,

where it is said that a court is justified in granting defendant’s motion for nonsuit after the evidence on both sides has been heard in a case, where, if the motion had been denied and a verdict found for plaintiff, it would have been set aside as not supported by, but contrary to, the evidence. Indeed, in the case of