Hinton Milling Co. v. New River Milling Co.

• Decision Date: 09 May 1916
• Court: West Virginia Supreme Court
• Parties: Hinton Milling Company v. New River Milling Company.

78 W.Va. 314

Hinton Milling Company

v.New River Milling Company.

Supreme Court of Appeals of West Virginia.

Submitted March 28, 1916.

Decided May 9, 1916.

1. Appeal and Error Presenting Questions in Trial Court Necessity.

If error or supposed error of any sort, except errors in the pleadings appearing on the record, are committed by a court during the the trial of a case by a jury, the appellate court will not review such rulings, unless they were objected to and excepted to when made, and a new trial was asked for and refused by the trial court and the rulings excepted to noted on the record and made part of it. (p. 317).

2. Same Presenting Questions in Trial Court Motion for New Trial Sufficiency.

A motion to set aside the verdict of the jury and grant a new trial which does not state the grounds upon which it is based, is not so defective as to deprive the person making the motion of the right to avail himself of such errors as he could have had the benefit of had they been stated in the motion, provided the errors complained of appear on the face of the record or are shown by special bills of exceptions, or by bill of exceptions certifying all the evidence and the rulings of the court in relation to the introduction or rejection of evidence on the trial, and that these errors are pointed out in the appellate court, (p. 318).

3. Same Presenting Questions in Trial Court Exceptions.

Where a bill of exceptions certifies all the evidence and shows in addition thereto the rulings of the trial court in admitting or refusing to admit evidence upon the trial, and the exceptions thereto taken at the time, this court will consider such exceptions without special bills of exceptions thereto, provided the particular questions are specified distinctly in the record on the motion for a new trial, or in an assignment of error, or brief of counsel in this court, so that this court may readily and safely find the particular questions or evidence to which the exceptions relate, but this court will not consider such exceptions without such specification, although the bill of exceptions certifying the evidence notes them. (p. 319).

4. Same Bill of Exceptions Purpose.

The purpose of a bill of exceptions is to exhibit on the record the supposed mistakes of the trial court which do not appear on the record and could not otherwise be brought before an appellate court for review and correction if erroneous. (p. 320).

5. Trial Instructions Applicability of Case.

Where an action of assumpsit is brought to recover damages for breach of a written lease of a mill and machinery therein, the property to be used by the lessee as a mill, and the lease contains no covenants as to the condition of the property at the time the lease takes effect, and there is no allegation in the declaration charging the defendant with damages on account of the defective conditions of the leased premises when the lease became effective, an instruction should not be given on motion of the plaintiff that, "The Court instructs the jury that if they believe from the evidence that the Hinton Milling Company was conducting a general milling business of which the defendant had knowledge and executed the lease with the knowledge that the machinery was in a defective and improper condition of repair by general wear and tear, and did not repair the same, and the plaintiff was thereby occasioned a loss, then the defendant would be liable for the damages resulting to plaintiff." (p. 327).

6. Damages-Breach of Lease Speculative Profits.

The defendant leased to the plaintiff its mill property and machinery for the term of five years and placed the plaintiff in possession. The lease contained a covenant requiring the lessor to repair "any breaks not the result of negligence or unskillful operation." In an action by the plaintiff against the defendant for damages for the breach of the said contract, the defendant cannot reduce plaintiff's demand by way of recoupment for "damages and injury to the trade and permanent business" of the defendant, '' by reason of the unskillful and inferior character of the operation of the mill" " whereby the permanent custom of the mill was destroyed and the customers permanently driven off." The admission of the evidence by the court, at the instance of the defendant against the objection of the plaintiff, to establish such recoupment, is reversible error. (p. 325).

Error to Circuit Court, Summers County.

Action by the Hinton Milling Company against the New River Milling Company. Judgment for defendant, and plaintiff brings error.

Reversed, and new trial awarded.

R. F. Dunlap and Wm. H. Sawyers, for plaintiff in error. T. N. Read, for defendant in error.

Mason, Judge:

The Hinton Milling Company, a corporation, instituted an action in assumpsit against the New River Milling Company, a corporation, in the circuit court of Summers County. There was a trial by a jury, and verdict for the defendant, and judgment on the verdict in favor of the defendant against the plaintiff for costs. The plaintiff brought the case to this court for review.

We are met upon the threshold of this investigation with an important question of practice. There was a motion for a new trial, which was overruled. The motion does not specify the grounds for the motion. The plaintiff simply moved to set-aside the verdict and grant it a new trial, and excepted to the ruling of the court in refusing it.

Under our judiciary system it is highly important that some efficient and practical method be adopted by which causes may be carried from the trial court to an appellate court to be therein reviewed. In suits heard upon writs of error no new matter can be introduced in the appellate court, and the same rule applies to appeals, except in that class of cases which are tried de novo in the appellate court. A party asking to have his case reviewed by an appellate court upon a writ of error, must present to the appellate court the entire record, or so much thereof as may be necessary to enable the appellate court to pass on the alleged errors complained of. The pleadings and all orders and rulings in relation thereto are parts of the record. No other rulings of the court made during the trial or occurrences mappenfing while the case is before the jury are parts of the record unless made so by some appropriate proceeding.

The first step in preparing a case for review upon writ of error in an appellate court, for erroneous rulings of the court while the case was before the jury, is the motion to set aside the verdict and grant a new trial. This is absolutely essential, unless the errors complained of relate to the pleadings. This is the well established law in this state, and so declared in numerous decisions of this court. In the case of State v. Pnares, 24 W.Va. 657, it is said: "In a case tried by a jury, no matter how many exceptions are taken to rulings of the court made during the trial, unless a motion is made before the trial-court to set aside the verdict, and that motion is overruled, all such errors saved will by the appellate court be deemed to have been waived." "A new trial for errors committed during trial can only be had after motion made in the trial-court and overruled; and this court will not ex mero motu grant a new trial in case no such motion was made in the court below" Judge Johnson in delivering the opinion of the court adds, "of course it is different if the error is in the pleading.'' This case is very fully discussed and approved in Danks v. Rodeheaver, 26 W. Va. 274. in which the court in syllabus No. 1, says: "If errors or supposed errors are committed by a court in its rulings during the trial of a case by a jury, the appellate court cannot review these rulings, unless, first, they were objected to when made and the point saved and a bill of exceptions taken showing these rulings during the term of the court, and unless, second, a new trial was asked of the court below and refused, and such refusal objected to in the court below, and this appear of record. If either of these essentials is omitted, the appellate court can not review the rulings. It can not review them, unless bills of exceptions were taken to them as above stated, and a new trial was asked and refused, and in this bill of exceptions these rulings of the court during the trial are fully stated, and it appears, that they, were erroneous, and that these erroneous rulings caused the jury to find the verdict, which they did find. Nor can the appellate court review such rulings by the judges during the trial in any case, though they were excepted to when made, and regular bills of exceptions were then taken, if no new trial was asked in the court below and refused, and such refusal objected to, and this be noted in the record."

These cases were decided before the act of the Legislature of 1891, amending the law in regard to certifying evidence, and as will be hereinafter noted, this amendment made radical changes in relation to bills of exceptions, but none as to the rulings requiring motions for new trials. It often happens that in the midst of a trial important and intricate questions of law are presented to the trial judge without time or opportunity for investigation, and as a consequence errors are committed. Upon a motion for a new trial, with time for reflection, and aided by the argument of counsel supported by authority, the judge would be able to correct a hasty opinion expressed by him in the progress of the trial, and save the delay, labor and expense of appealing to an appellate court. Then, as it is absolutely necessary in such cases to ask the trial court to set aside the verdict and grant a new trial before the case will be reviewed by the appellate court, what should the motion include? In the case at bar, the motion was simply to set aside the verdict and award a new trial, and the refusal of the court to do so excepted to. Is that sufficient?

It is well settled in this state...