once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.

(3) Directed verdict

CURRAN v. STEIN.

COURT OF APPEALS, KENTUCKY. 1901.

110 Kentucky 99.

[ACTION for compensation for personal services. Defense that the plaintiff's contract was made with one who was not the defendant's agent. At the close of the plaintiff's evidence, the defendants moved the court to instruct the jury peremptorily to find for them, which motion was denied. At the close of all the evidence, this motion was renewed by the defendant, and granted by the court.] 1 HOBSON, J.2

As soon as the court had given the jury the peremptory instruction to find for appellees, a number of the jurors in their seats severally declined to sign a verdict for appellees, and thereupon the court ordered the jury to retire to the jury room, and said to them that, if they did not return a verdict as directed, he would send them somewhere else. The jury retired, and thereupon appellant moved the court to discharge the jury from the further consideration of the case. The court overruled the motion. After some time the jury returned into court, and by their foreman reported the following verdict: "In obedience to the peremptory instruction of the court, we, the jury, find for the defendants."

It is insisted for appellant that the court erred in giving the jury a peremptory instruction, or in interfering with the freedom of their deliberation by requiring them to return a verdict which they were unwilling to render. There was no error of the court in requiring the jury to obey his instructions. The peremptory instruction of the court to the jury, like any other order the court may make in the case, must be obeyed. The verdict, though in form the act of the jury, is really the act of the court. The court determines the case. The verdict of the jury is merely a form of putting of record the judgment which the court has given. To hold that the jury may disobey the peremptory direction of the court would be to vest the jury with power to review the decision of the court on the law of the

1 This statement of facts is condensed from the opinion.

2 The court's statement of the pleadings and evidence is omitted.

1

In some jurisdictions the practice is for the court to discharge the jury and enter the judgment. The substance is the same when the jury find a verdict by the peremptory direction of the court. It is proper that the verdict, as in this case, should show on its face that it is made under the order of the court, for this relieves the jury of all responsibility for it. As to the propriety of the action of the court in giving the peremptory instruction, there is more question.1

[Reversed.] 2

BERRY v. DRYDEN.

SUPREME COURT, MISSOURI. 1842.

7 Missouri 324.

SCOTT, J. Francis Berry brought an action of slander against William Dryden. The declaration contained four counts, of which the plaintiff relied on the first two. In these, the words charged to have been spoken, were the following: "He (meaning the plaintiff,) had sworn a lie in Kentucky, and that it was in him, for he had sworn what he could prove to be a point blank lie, this day, before Squire Davis. He, (meaning the plaintiff,) had sworn a lie in Kentucky, and that it was in him, for he had sworn what he could prove to be a point blank lie, this day, before Squire Davis." 3

On the trial it was proved that the defendant had said of the plaintiff, that he had sworn off a just account, before Squire Davis, and that he would, or could prove it, at the circuit court by a witness; that he had been had up for perjury in Kentucky, and the records would show it.

The defendant's counsel moved the court to instruct the jury, that the words laid in the declaration were not supported by the proof. This instruction was given and excepted to, and is now assigned for

error.

The plaintiff has made a preliminary objection to the instruction, and insists, that it is the province of the jury and not of the court,

1 The remainder of the opinion, in which the court held that the trial judge should not have given a peremptory instruction, is omitted.

2 See Grimes Dry Goods Co. v. Malcolm, 164 U. S. 483, 490-492 (1896). As to the effect of the refusal of a juror or jurors to join in a directed verdict, see Cahill v. Chicago, M. & St. P. Ry., 74 Fed. 285, 289 (C. C. A. 7th, 1896); Cherniak v. Prudential Ins. Co., 339 Pa. 73 (1940).

As to motions to strike out the plaintiff's evidence as a substitute, in effect, for a directed verdict, see Barksdale v. Southern Ry. Co., 152 Va. 604 (1929) (direction of verdict prohibited by statute). As to motions to exclude the plaintiff's evidence, see Potts v. Union Traction Co., 75 W. Va. 212, 214 (1914). 3 Repetition in original report.

to determine whether there is such an identity between the words proved, and those laid in the declaration, as will support the action. This position cannot be maintained. Whether a variance exists or not, between the declaration and proof, is a question exclusively for the determination of the court. The jury ascertains what words were spoken, and if there is a variance between them and the words contained in the declaration, will look to the opinion of the court, in order to be informed, whether it is of such a nature as will defeat the action.

After the many decisions that have been made on the subject of variance, in actions of slander, no authority will be required, to show that the words proved to have been spoken, are not substantially the same as those laid in the declaration. The rule is stated in the books, that the slander proved must substantially correspond with that charged in the declaration. By this, it is not to be understood, that if certain words are employed to convey a slanderous imputation, those words will support a declaration containing the same imputation in different words. The meaning of the rule seems to be, that, if the words charged to have been spoken are proved, but with the omission, or addition of others not at all varying, or affecting their sense, the variance will not be regarded. Although the words proved are equivalent to the words charged in the declaration, yet not being the same in substance, an action cannot be maintained; and although the same idea is conveyed in the words charged and those proved, yet if they are not substantially the same words, though they contain the same charge, but in different phraseology, the plaintiff is not entitled to recover. In Maitland v. Goldney, 2 East, 438, it is said, "Though the plaintiff need not prove all the words laid, yet he must prove so much of them, as is sufficient to sustain his cause of action, and it is not enough for him to prove equivalent words of slander." It is necessary that this rule be adhered to, in order to let the party know what he has to defend, and that he may not be held responsible for the misunderstanding of the witnesses, as he might, if they were permitted to testify as to the import of his words. 2 Phil. Evidence, 97.1 ..

1 The remainder of the opinion, dealing with another point, is omitted. 2 Compare Cooper v. Seaverns, 97 Kan. 159, 160 (1916). On variance, see Stephen, Pleading (Williston ed. 1895) *93-*95. Numerous cases where variances were held fatal at common law are collected in 1 Tidd, Practice (9th ed. 1828) 434, n. f. On variance in criminal cases, see 63 U. Pa. L. Rev. 804 (1915).

Plaintiff's declaration alleges a contract to carry certain goods safely to Dover. At the trial plaintiff proves a contract to carry the goods safely to Dover, fire and robbery excepted, and that the goods were not lost due to fire or robbery. Is defendant entitled to a directed verdict? See Latham v. Rutley, 2 B. & C. 20 (K. B. 1823).

Declaration in slander alleging a false charge of felony before Baron

STATUTE 3 & 4 WILLIAM IV, c. 42 (1833).1

XXIII. "And whereas great Expense is often incurred, and Delay or Failure of Justice takes place, at Trials, by reason of Variances as to some Particular or Particulars between the Proof and the Record or setting forth, on the Record or Document on which the Trial is had, of Contracts, Customs, Prescriptions, Names, and other Matters or Circumstances not material to the Merits of the Case, and by the Mis-statement of which the opposite Party cannot have been prejudiced, and the same cannot in any Case be amended at the Trial, except where the Variance is between any Matter in Writing or in Print produced in Evidence and the Record: 2 And whereas it is expedient to allow such Amendments as herein-after mentioned to be made on the Trial of the Cause;" be it therefore enacted, That it shall be lawful for any Court of Record, holding Plea in Civil Actions, and any Judge sitting at Nisi Prius, if such Court or Judge shall see fit so to do, to cause the Record, Writ, or Document on which any Trial may be pending before any such Court or Judge, in any Civil Action, or in any Information in the Nature of a Quo warranto, or Proceedings on a Mandamus, when any Variance shall appear between the Proof and the Recital or setting forth, on the Record, Writ, or Document on which the Trial is proceeding, of any Contract, Custom, Prescription, Name, or other Matter, in any Particular or Particulars in the Judgment of such Court or Judge not material to the Merits of the Case, and by which the opposite Party cannot have been prejudiced in the Conduct of his Action, Prosecution, or Defence, to be forthwith amended by some Officer of the Court or otherwise, both in the Part of the Pleadings where such Variance occurs, and in every other Part of the Pleadings which it may become necessary to amend, on such Terms as to Payment of Costs to the other Party, or postponing the Trial to be had before the same or another Jury, or both Payment of Costs and Postponement, as such Court or Judge shall think reasonable; and in case such Variance shall be in some Particular or Particulars in the Judg

Waterpark of Water fork, a justice of the peace. Plaintiff proves such a charge before Baron Waterpark of Waterpark. Is defendant entitled to a directed verdict? See Second Report Made to His Majesty by the Commissioners Appointed to Inquire into the Practice and Proceedings of the Superior Courts of Common Law (1830) 35-42.

1 Section 23 of this statute was enacted pursuant to the recommendations of the Common Law Commissioners. See Second Report Made to His Majesty by the Commissioners Appointed to Inquire into the Practice and Proceedings of the Superior Courts of Common Law (1830) 35-42.

2 This statute was preceded by Lord Tenterden's Act, 9 Geo. IV, c. 15 (1828), which allowed amendments at the trial in cases of variance between the pleadings and "any Matter in Writing or in Print produced in Evidence."

3 €f. p. 286, supra.

ment of such Court or Judge not material to the Merits of the Case, but such as that the opposite Party may have been prejudiced thereby in the Conduct of his Action, Prosecution, or Defence, then such Court or Judge shall have Power to cause the same to be amended upon Payment of Costs to the other Party, and withdrawing the Record or postponing the Trial as aforesaid, as such Court or Judge shall think reasonable; and after any such Amendment the Trial shall proceed, in case the same shall be proceeded with, in the same Manner in all respects, both with respect to the Liability of Witnesses to be indicted for Perjury, and otherwise, as if no such Variance had appeared; and in case such Trial shall be had at Nisi Prius or by virtue of such Writ as aforesaid, the Order for the Amendment shall be indorsed on the Postea or the Writ, as the Case may be, and returned together with the Record or Writ, and thereupon such Papers, Rolls, and other Records of the Court from which such Records or Writ issued, as it may be necessary to amend, shall be amended accordingly; and in case the Trial shall be had in any Court of Record, then the Order for Amendment shall be entered on the Roll or other Document upon which the Trial shall be had; provided that it shall be lawful for any Party who is dissatisfied with the Decision of such Judge at Nisi Prius, Sheriff, or other Officer, respecting his Allowance of any such Amendment, to apply to the Court from which such Record or Writ issued for a new Trial upon that Ground, and in case any such Court shall think such Amendment improper, a new Trial shall be granted accordingly, on such Terms as the Court shall think fit, or the Court shall make such other Order as to them may seem meet.

NEW YORK CIVIL PRACTICE ACT (1921).

§ 434. Variance between pleading and proof. A variance between an allegation in a pleading and the proof is not material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. Where the variance is not material, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs. Where, however, the allegation to which the proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, it is not a case of variance, within this section, but a failure of proof.1

1 But cf. N. Y. Rules of Civil Practice (1921) Rule 166, allowing amendment of the pleadings at the trial to conform to the proof. See Clark, Code Pleading (1928) § 118.