Hoss v. Palmer

Walker, J.

This case is governed by Merrick v. Bedford, 141 N. C., 504 , as will appear by the following language of the court in tbat case: “We tbink, furthermore, tbat according to plaintiff’s brief and argument 'the adverse ruling complained of related solely to the issue of damages and not to the cause of action, upon the establishment of which the right to recover damages depends. Under the ruling, the plaintiff would have recovered some damages, much more than nominal. Under the decisions of tbis court the plaintiff should have continued the trial, and, by noting exceptions properly, be would have been able to have tbis court review every ruling made in the court below. We tbink the nonsuit was voluntary, premature, improvidently taken, and tbat under our decisions an appeal from a nonsuit under such circumstances will not lie.” In Hayes v. Railroad, 140 N. C., 131 , we said tbat “in order to avoid appeals based upon trivial interlocutory decisions, the right thus to proceed has been said to apply ordinarily only to cases where the ruling of the court strikes at the root of the case and precludes a recovery by the plaintiff.” Tbis case is not like Davis v. Ely, 100 N. C., 283 , or Hayes v. Railroad, supra, which were decided upon special facts and circumstances. Tbe ruling of the court upon the evidence and the right to recover punitive or exemplary damages under the allegations of the complaint did not affect the plaintiff’s right to recover, but only the quantum of damages. Tbe judgment of nonsuit relates to the cause of action, and not to the amount of damages. If the court decides erroneously as to the law for assessing the damages, the plaintiff can except and have the ruling reviewed here upon an appeal from the final determination.

Midgett v. Manufacturing Co., 140 N. C., 361.

Tbe plaintiff’s cause of action was left intact *19 by the ruling of the court. A case could never be “tried out” or ended if, when an adverse ruling is made as to an item of damage, the plaintiff should be permitted to test its correctness in this court by a nonsuit and appeal.

The nonsuit was prematurely taken and, under the circumstances of this case, the appeal cannot be entertained.

We do not pass upon the question as to the competency of the testimony, for it may not again be presented, and certainly not in this case.

Appeal Dismissed.