Danville Bank v. Waddill

• Decision Date: 20 April 1876
• Parties: DANVILLE BANK v. WADDILL.
• Court: Virginia Supreme Court

68 Va. 448

DANVILLE BANK v. WADDILL.

Supreme Court of Appeals of Virginia.

April 20, 1876

I. In an action of assumpsit, on the plea of the statute of limitations, the time from the 2d of March 1866, to the 1st of January 1869, is to be left out of the computation.

II. To an action of assumpsit there is a plea of payment and of the statute of limitations. On the trial the plaintiff asks the court to instruct the jury that in passing upon the plea of the statute they must leave out of the computation of time all the period extending from the 2d of March 1866 to January 1st, 1869. The court refuses to give the instruction and plaintiff excepts. The jury find a general verdict for the defendent, and there is judgment accordingly: HELD:

1. That the appellate court will reverse the judgment for the error in refusing the instruction, and send the cause back for a new trial.

2. This will always be done, unless the appellate court can see from the whole record, that even under correct instructions a different verdict could not have been rightfully found, or unless it is able to see that the erroneous ruling of the trying court could not have influenced the verdict. The onus is upon the appellee to show this, and where there are distinct issues a general verdict is not sufficient in general to show it.

This was an action of assumpsit in the circuit court of the town of Danville, brought in March 1872 by the Danville Bank against Pleasant Waddill. The declaration contained the common counts, and also a special count, in which it was alleged that in April 1865 the Danville Bank delivered to Waddill $4,865 in gold, to be by him kept and to be delivered to the plaintiff when demanded.

The defendant appeared and filed the pleas of payment, and the statute of limitations; on which issues were made up.

On the trial of the cause the plaintiff moved the court to instruct the jury as follows:

Evidence having been introduced before the jury at the trial of this cause, tending to show that the right of action set forth and relied on in the plaintiff's declaration, first accrued on the 30th of May 1865, on motion of the plaintiff by counsel the court instructs the jury that in passing upon the issue raised in the cause by the plea of the statute of limitations pleaded by the defendant, they shall leave out of the computation of time all the period extending from the 2d of March 1866 to the 1st of January 1869. But the court refused to give the instruction.

The jury found a verdict in the following words: " We the jury find a verdict for the defendant." The plaintiff thereupon moved the court to set aside the verdict and grant a new trial; but the court overruled the motion, and rendered a judgment in favor of the defendant; and the plaintiff excepted. The exception contains the instruction asked by the plaintiff and refused by the court, as above stated. On the application of the plaintiff this court awarded a supersedeas.

E Barksdale, Flournoy and Dabney, for the appellant.

Ould & Carrington, for the appellee.

STAPLES J.

In an action of assumpsit brought in the circuit court of Pittsylvania by the Danville Bank against Waddill, the issues were made up on the pleas of non assumpsit, and the statute of limitations. On the trial the plaintiff asked the court to instruct the jury, " that in passing upon the issue raised by the statute of limitations, they shall leave out of the computation of time all the period extending from the 2d March 1866 to the 1st day of January 1869." The court refused to give this instruction; and the plaintiff excepted. Thereupon the jury rendered their verdict in the following words: " We the jury find a verdict for the defendant; " which verdict the plaintiff moved the court to set aside, and grant it a new trial: but the motion was overruled; and the plaintiff again excepted.

There is no doubt but that the court erred in refusing to give the plaintiff's instruction. Indeed, this is not seriously controverted by the counsel for the defendant. The only question, then, we have to consider is, whether a new trial is to be granted. The rule almost universally recognized is that a misdirection of the trying court is always a ground of reversal, unless it can be plainly seen from the bill of exceptions that the error did not and could not affect the verdict. Kincheloe v. Tracewells, 11 Gratt. 587; Noyes v. Shepherd, 30 Maine R. 173; Graham and Waterman on New Trials, 869.

In Wiley et als. v. Givens, 6 Gratt. 277, 285, this court went much farther. In that case, an erroneous instruction having been given in the court below, it was argued that this court ought not to reverse on that ground if upon the whole record it appeared that the judgment was substantially correct. But it was held, that the appellate court could look no farther than to the propriety of the instruction given; and if it was erroneous, the judgment would be reversed and a new trial granted. That decision was followed by this court in Rea's adm'x v Trotter, 26 Gratt. 585. Whatever may be said of the ruling in these two cases, it will not be disputed, that whenever an erroneous instruction is given, or what is the same thing, a correct one refused, the judgment will be reversed, unless the appellate court can see from the whole record, that even under correct instructions a different verdict could not have been rightly...