Given v. Diamond Shoe & Garment Co

• Decision Date: 30 September 1919
• Docket Number: (No. 3840.)
• Citation: 101 S.E. 153
• Court: West Virginia Supreme Court
• Parties: GIVEN. v. DIAMOND SHOE & GARMENT CO.

101 S.E. 153

GIVEN.

v.DIAMOND SHOE & GARMENT CO.

(No. 3840.)

Supreme Court of Appeals of West Virginia.

Sept. 30, 1919.

Rehearing Denied Dec. 8, 1919.

(Syllabus by the Court.)

Error to Circuit Court, Kanawha County.

Action by Robert A. Given against the Diamond Shoe & Garment Company. Verdict and judgment for plaintiff, and defendant brings error. Affirmed.

M. M. Robertson and W. E. R. Byrne, both of Charleston, for defendant in error.

A. M. Belcher, of Charleston, for plaintiff in error.

MILLER, P. For well known reasons we at once put out of view and away from further consideration two supplemental records certified by the circuit court since this case was originally docketed here, on March 27, 1919. The first of these purports to have been made up on July 3, 1919, by a so-called nunc pro tunc order, whereby the court over plaintiff's objection undertook to sign and seal and make part of the record as of February 13, 1919, what is identified as defendant's bill of exceptions number five. It was not found by the court that any such order had been directed on February 13, 1919, and inadvertently omitted from the record, but only that defendant was entitled to have the instructions given and refused made a part of the record and certified by the court. The bill of exceptions so identified as number five certifies that it was made to appear not that these instructions had at any time prior to that time been made a part of the record, but that through the inadvertence of counsel for defendant they had not theretofore been made a part of the record, and for that reason the court undertook then to certify them as part of the record.

The second supplemental record consists of certain instructions to the jury, styled in the case numbered from 1 to 4 inclusive, accompanied by the certificate of the clerk of the circuit court, dated September 15, 1919, to be true copies of the instructions given on behalf of the plaintiff, and to which is also attached the certificate of the circuit judge, of the same date, identifying them as the four instructions given at the instance of plaintiff over the objection of the defendant, but not undertaking to give them the status of a bill of exceptions. The final judgment was entered January 17, 1919; the order making up and filing defendant's original bills of exceptions was actually entered on the record March 19, 1919, but by memorandum thereto, it was entered nunc pro tunc as of February 12, 1919, the date said bills of exceptions were presented to the court, signed and sealed, and saved to the defendant.

We take judicial notice that between the date of the final judgment and the orders purporting to make up the new bills of exceptions, the February term, 1919, intervened, and that the thirty days given from the adjournment of the preceding term at which the final judgment was entered, to make up and have certified bills of exceptions, had long since elapsed, and that the court was thereafter without jurisdiction to amend or to add to the record by signing new or additional bills of exceptions. A bill of exceptions signed after thirty days from the close of the term of final judgment is no part of the record and cannot be considered. Section 9, chapter 131 (sec. 4913), Code 1913, and notes; Jordan v. Jordan, 48 W. Va. 600, 37 S. E. 556. In Virginia it was held that even consent to an extension of time longer than thirty days, not entered of record at the time, cannot be shown by a nunc pro tunc order. Ratliff v. Meadows, 116 Va. 975, 83 S. E. 395. At the end of the thirty days prescribed by our statute the record is closed and cannot be thereafter opened to let in additional matter. So we must decline to consider the supplemental records.

This action by plaintiff was to recover damages for personal injuries sustained by being struck by defendant's automobile or delivery truck in charge of its servant, the result of his alleged negligence and reckless driving. On the trial upon the issue joined on defendant's plea of not guilty, the plaintiff obtained a verdict and Judgment for $3,333.33 1/3 an amount which at once attracts our attention, and invites some speculation as to how the jury arrived at this particular sum. There was evidence that defendant carried a policy of accident insurance for $10,000.00. The verdict of the jury is exactly one-third of that sum. But the manner in which the jury arrived at the amount of the verdict is perhaps not a proper subject of inquiry.

The first and second points of error assigned and relied on to reverse the judgment, both involving the sufficiency of the evidence to justify the verdict, are (1) that the court should have sustained defendant's motion to strike out the plaintiff's evidence, and (2) that at the close of the evidence the court should have sustained defendant's motion to direct a verdict in its favor. These points are urged with considerable vigor by counsel for defendant. His position is that the physical facts overcame all the theories and claims of plaintiff that he was injured at the place and in the way he and some of his witnesses swore. The plaintiff's evidence is that he was standing on the sidewalk on Kanawha street, Charleston, in the vicinity of the court house, engaged in conversation with his witness Moore, both safely within the curb line, near a telephone pole, the plaintiff with his left hand resting against the pole, and a yard stick in his right hand which he used in tapping the pole, and that Moore stood facing him on the opposite side of the pole. There is much evidence to show that these were the relative positions of the two men on the sidewalk. The theory of defendant is that plaintiff was standing in the street opposite thetelephone pole, not at a street crossing, but about midway in the block, where he had no right to be, and that if he was standing wholly on the sidewalk as he claims, he could not have thus sustained his injuries. On this theory the evidence shows that defendant's delivery...