Degraff v. Smith

(dissenting). — I cannot agree with the majority members of the court. Their decision is based upon the premise that the dismissal of Mundee amounted to an adjudication that he was not guilty of any negligence. A reading of the record discloses that the dismissal was conditional. There appears to have been no intent upon the part of the attorneys for the plaintiff to dismiss with prejudice. The excerpt from the transcript of the evidence quoted in the opinion discloses that counsel for defendant simply moved for a dismissal. Under the rule pertaining to dismissal, sec. 21-915, sub. (2),…