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CHARLES L. MITCHELL, d/b/a MITCHELL REAL ESTATE v. JAMES M. RAWLS AND KERRY M. RAWLS

AUGUST 20, 1986

CHARLES L. MITCHELL, d/b/a MITCHELL REAL ESTATE
v.
JAMES M. RAWLS AND KERRY M. RAWLS



BEFORE DAN LEE, ROBERTSON AND GRIFFIN

GRIFFIN, JUSTICE, FOR THE COURT:

This is a suit for a real estate commission appealed from the Chancery Court of Marshall County. At the

conclusion of the complainant's case, the appellees moved to dismiss on the ground that the complainant had not made out a case. The chancellor agreed and, near the end of his ruling, he made the following statement:

 I feel that under the terms of the contract and the listing agreement that he prepared, the terms of which were used on his form of which he had full knowledge and understanding, that he is not entitled to recover in this instance. Therefore, the Defendant's motion for a directed verdict under Rule 50 will be sustained. (emphasis added)

 Appellant argues here that the chancellor erred in that he did not follow the accepted standard for direction of a verdict. The general rule is that on a motion for directed verdict the court should consider the evidence in the light most favorable to the party presenting it, and indulge in all favorable inferences to be drawn therefrom, and, if either be sufficient to support a verdict, overrule the motion. Edwards v. Cleveland Food, Inc., 437 So.2d 56 (1983); King v. Dudley, 286 So.2d 814 (Miss. 1973); Paymaster Oil Mill Company v. Mitchell, 319 So.2d 652, 655 (Miss. 1975).

 The chancellor inadvertently cited Rule 50. Actually the Rule applicable is Rule 41(b), Miss.R.Civ.P., the pertinent part of which reads as follows:

 After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court may then render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court may make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any other dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an

 adjudication upon the merits.

 We have heretofore considered this question in Davis v. Clement, 468 So.2d 58, 61-62 (Miss. 1985), wherein we said:

 We emphasize that this motion was presented to a trial judge sitting without a jury. In such a setting, the trial court is not required to look at the evidence in the light most favorable to the plaintiff, giving the plaintiff the benefit of all reasonable favorable inferences. Notions emanating from Paymaster Oil Co. v. Mitchell, 319 So.2d 652 (Miss. 1975), and many other similar cases - whether arising in the context of a motion for a directed verdict, a request for a peremptory instruction or a motion for judgment notwithstanding the verdict - have no application here.

 . . . .

 If, considering the evidence fairly, as distinguished from in the light most favorable to the plaintiff, the trial judge would find for the defendant - because plaintiff has failed to prove one or more essential elements of his claim, because the quality of the proof offered is insufficient to sustain the burden of proof cast upon the plaintiff, or for whatever reason - the proceeding should be halted at that time and final judgment should be rendered in favor of the defendant. [footnote omitted]

 Obviously, when there is doubt, the trial judge generally ought to deny the motion to exclude and dismiss but such is the exercise of sound discretion, not obligation imposed by law.

 The construction we here give Rule 41(b), Miss. R. Civ. P., is wholly consistent with that given Federal Rule 41(b) upon which our rule has been patterned. See, e.g., Hersch v. United States, 719 F.2d 873, 876-877 (6th Cir. 1983); Cox v. C. H. Masland & Sons, Inc., 607 ...


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