De Bd. v. Camden Interstate Ry. Co

• Court: West Virginia Supreme Court
• Writing for the Court: POFFENBARGER
• Citation: De Bd. v. Camden Interstate Ry. Co, 57 S.E. 279, 62 W.Va. 41 (W. Va. 1907)
• Decision Date: 17 April 1907
• Parties: DE BOARD v. CAMDEN INTERSTATE RY. CO.

57 S.E. 279

62 W.Va. 41

DE BOARD

v.CAMDEN INTERSTATE RY. CO.

Supreme Court of Appeals of West Virginia.

April 17, 1907.

1. Writ of Error—Record—Authentication —Bill of Exceptions.

A paper, entitled "Bill of Exceptions, " signed and sealed by the judge of the court, and bearing the style of the case in which an order has been entered, stating that a bill of exceptions was tendered, signed, sealed, and made a part of the record, is sufficiently identified to make it a part of the record.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2705.]

2. Same—Incorporation of Evidence.

A certificate of evidence, marked for identification in a particular manner, and referred to as having been so marked in a bill of exceptions, which says "the plaintiff, to maintain the issue upon his part, introduced before the court and jury the following witnesses, who testified as follows: Here read evidence transcribed by stenographer, certified by her and for identification marked [giving the mark found on the certificate], and this was all the evidence offered, either by the plaintiff or the defendant, upon the trial of this case." is sufficiently incorporated in the bill of exceptions, in a legal sense, and identified, to make it a part thereof.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error. § 2713.]

3. Carriers — Passengers — Contract — Evidence.

A street railway ticket or transfer check, in the hands of a purchaser thereof for use on the car lines of the company issuing it, constitutes the complete evidence of the contract between the purchaser and the company, and the privileges evidenced by its terms are not subject to limitation by a mere rule of the company, knowledge of which the purchaser did not have, and could not conveniently have ascertained.

4. Same—Ejection—Damages.

Ejection of the holder of such ticket or transfer, by a conductor or other officer, from a car of the company by which it was issued, contrary to the terms thereof, and refusal to carry him, on his failure and refusal to pay an additional fare, is actionable, and the measure of damages is such sum as the jury believe the plaintiff entitled to recover, provided the amount be not so large or small that the action of the jury in awarding it must be attributed to passion, partiality, corruption, prejudice, or some mistaken view of the case.

5. Writ of Error — Disposition of Cause — Remand to Trial Court.

On reversing and setting aside an order, granting a new trial, on a writ of error perfected before the new trial was had, the appellate court will not render judgment on the verdict reinstated by its action on the writ of error, if the rendition of a final judgment in the court below, on a second verdict, obtained after the writ of error was perfected, be brought to its attention. Under such circumstances, the case will be remanded, for judgment by the court below, on the verdict reinstated by the appellate court, to the end that there may not be in force two judgments at the same time on one cause of action.

6. Same—Effect of Transfer of Cause—Jurisdiction of Appellate Court—Subsequent Proceedings in Trial Court.

The acquisition of a second verdict and judgment thereon, under such circumstances, does not deprive the appellate court of its jurisdiction, nor constitute a settlement and adjustment of the controversy, barring prosecution of the writ of error. (Syllabus by the Court.)

Error to Circuit Court, Cabell County.

Action by William J. De Board against the Camden Interstate Railway Company. From an order granting a new trial after verdict in favor of plaintiff, he brings error. Reversed and remanded.

Isbell & Perry, for plaintiff in error.

Vinson & Thompson, for defendant in error.

POFFENBARGER, J. In an action of trespass on the case for damages, for wrongfully refusing to carry him on its street car, and ejecting him therefrom, William J. De Board obtained, in the circuit court of Cabell county, a verdict against the Camden Interstate Railway Company, for the sum of $300, which the court, on the motion of the defendant, set aside. Under clause 9 of section 1 of chapter 135 of the Code of 1899 (section 4038, Code 1906), allowing, in any civil case, where there is an order granting a new trial, an appeal from such order, De Board obtained a writ of error.

As the verdict was set aside under the impression that the evidence did not sustain it, or that it was contrary to the evidence, the assignment of error involves a consideration of the evidence, and the point is made, in the brief filed for the defendant in error, that the evidence has not been made part of the record. The order, purporting to make the bill of exceptions part of the record, is the final order in which the verdict is set aside, and a new trial allowed. The portion thereof which relates to the bill of exceptions reads as follows: "Be it remembered that upon the trial of this case, after the jury was sworn, and before they had retired, and during the progress of the trial, the plaintiff objected and excepted to certain rulings, opinions, and actions of the court, made during the trial, and tendered his bill of exceptions thereto marked 'Exceptions, De Board v. Camden Interstate Railway Company, certificate of evidence, ' and prayed that the same be signed, sealed, and made a part of the record therein, which is accordingly done." What purports to be a bill of exceptions is printed in the record under the following heading: "Bill of Exceptions. William J. De Board v. Camden Interstate Railway Company, a Corporation. Trespass on the Case." It is what is known as a skeleton bill of exceptions, and so much of it as relates to the evidence reads as follows: "The plaintiff, tomaintain the issue upon his part, introduced before the court and jury the following witnesses, who testified as follows: Here read evidence transcribed by stenographer, certified by her, and for identification marked 'De Board v. Railway Company. Certificate of Evidence.' And this was all the evidence offered, either by the plaintiff or the defendant, upon the trial of this case." Following the bill of exceptions appears what purports to be the evidence in the case under the caption, "De Board v. Railway Company. Certificate of Evidence." Immediately after this caption appears the style of the case in the following terms: "William J. De Board v. Camden Interstate Railway Company. On Appeal." The order purporting to make a bill of exceptions part of the record was entered on the 9th day of February, 1906. The certificate of the stenographer to the evidence bears date February 14, 1906.

It is insisted that the bill of exceptions does not answer the descriptive terms of the order. It bears the style of the ease, and is signed and sealed by the judge of the court. Many decisions of this court require in the order a description sufficient to identify the paper referred to. Different methods of accomplishing this in common use by members of the profession and the courts, such as marking the bill by a number, a letter, or a name, have been mentioned and approved; but no particular mode of identification has ever been required. It suffices that a comparison of the bill of exceptions with the description given in the order makes its identity certain. What degree of certainty is required has never been very clearly defined; but it is difficult to see any reason for mere technical requirements. If there be mere trifling inaccuracies, such as reason demands must be due to nothing more than inadvertence, while the paper, in all material and substantial particulars, comes within the terms used so fully as to convince and satisfy any reasonable person that it is the paper referred to, the ends of justice would not be subserved by the rejection thereof. McKendree v. Shelton, 51 W. Va. 516, 41 S. E. 909, sustains this view. In determining what is deemed to be a part of a bill of exception, this court said: "It must be annexed to it, or so marked by letter, number, or other means of identification mentioned in the bill as to leave no doubt, when found in the record, that it is the one referred to in the bill of exceptions." The later cases of Tracy v. Coal Co., 57 W. Va. 587, 50 S. E. 825. Dudley v. Barrett, 58 W. Va. 235, 52 S. E. 100, Parr v. Currence, 58 W. Va. 523, 52 S. E. 496, Railroad Co. v. Joyce, 58 W. Va. 544, 52 S. E. 498, and Woods v. King, 59 W. Va. 418, 53 S. E. 605, have not qualified this rule in any respect. We think the bill of exceptions is sufficiently identified to be a part of the record.

It becomes necessary now to determine whether the certificate of evidence is a part of the bill of exceptions. The bill of excep tions says, "The plaintiff, to maintain the issue upon his part, introduced before the court and jury the following witnesses, who testified as follows, " and then directs the insertion of the evidence as transcribed by the stenographer, certified by her and for identification marked "De Board v. Railway Company. Certificate of Evidence." Turning to what is relied upon as the certificate of evidence, we find the caption thereof to correspond exactly with the means of identification set forth in the bill of exceptions. Nevertheless, it is said that the bill does not show that the evidence is annexed to it and made a part thereof. The phraseology employed in a bill of exceptions, in an attempt to make another paper a part of it, is immaterial, if the terms used logically do so. To require the bill to say, in so many words, the evidence hereto annexed or bearing certain marks is made a part hereof, would sacrifice substance to mere form, for that language would not be more certain or effective than the language employed in the bill under consideration, which says the witnesses introduced testified as follows, and then directs the insertion of the testimony, embodied in a paper, so marked and described as to leave no room for any mistake concerning it. When...