Rollins v. Daraban

• Decision Date: 27 June 1960
• Docket Number: No. 11064,11064
• Citation: 145 W.Va. 178,113 S.E.2d 369
• Court: West Virginia Supreme Court
• Parties: Paul ROLLINS v. Louie Louis DARABAN, Jr.

Page 369

113 S.E.2d 369

145 W.Va. 178

Paul ROLLINS v. Louie Louis DARABAN, Jr.

No. 11064.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 26, 1960.

Decided March 8, 1960.

Rehearing Denied June 27, 1960.

Syllabus by the Court.

1. 'The purpose of a bill of exceptions is to exhibit the supposed mistakes of the trial court which do not appear upon the record, and which cannot otherwise be brought before an appellate court for review and correction if erroneous.' Penix v. Grafton, 86 W.Va. 278, Pt. 1, Syllabus .

2. When the written opinion of a circuit court is made a part of the record by court order, it operates merely to point out the specific ground on which the trial court acted.

3. 'An Appellate Court will not reverse the judgment or decree of an inferior court, unless error affirmatively appear on the face of the record; and such error will not be presumed, all presumptions being in favor of the judgment or decree.' Richardson v. Donehoo, 16 W.Va. 685, Pt. 14 Syllabus.

4. 'A plaintiff in error assumes upon himself the burden of showing error in the judgment complained of.' Griffith v. Corrothers, 42 W.Va. 59, Pt. 2 Syllabus .

5. 'It makes no difference upon what ground the court below decided the case, or the particular matter complained of, it is not the reasons assigned upon which the court decided a question that is to be reviewed, but the action of the court itself; and the question always in the appellate court is, whether the judgment to be reviewed is correct.' Shrewsbury v. Miller, 10 W.Va. 115, Pt. 3 Syllabus.

6. 'The action of a trial court in setting aside a verdict for the plaintiff and granting the defendant a new trial will not be disturbed, unless clearly wrong.' McClaugherty v. Tri-City Traction Co., 123 W.Va. 112, Pt. 1 Syllabus .

Fletcher W. Mann, Beckley, for plaintiff in error.

R. D. Bailey, Pineville, for defendant in error.

CALHOUN, Judge.

The plaintiff, Paul Rollins, instituted this action in trespass on the case in the Circuit Court of Wyoming County against Louie Louis Daraban, Jr., to recover damages for personal injuries, including the loss of an arm, sustained by the plaintiff as a result of a collision upon a public highway involving an automobile operated by him and a truck operated by the defendant. To the action of the trial court in setting aside the verdict of a jury rendered on May 16, 1958, in favor of the plaintiff for the sum of $7,500, the plaintiff prosecutes this writ of error.

From the testimony it appears that the collision involving the two motor vehicles occurred at or near a bridge or culvert. W. C. Hersman, a member of the Department of Public Safety, who was called to the scene shortly following the accident, testified: '* * * there was a bridge, a small culvert there where the accident happened.'

After the defense rested its case in chief, the plaintiff recalled G. H. Rollins, father of the plaintiff, to the witness stand for further testimony. G. H. Rollins testified that, after the adjournment of court on the preceding day, he visited the scene of the collision and inspected the culvert. The portion of such testimony which has significance in connection with the action of the court in setting aside the verdict is the answer: 'Well, it has head walls on both ends of the culvert.'

After the trial the defendant obtained affidavits and photographs which were exhibited to the trial court in support of the motion to set aside the verdict. The photographs apparently were of the culvert and of the plaintiff's automobile which had been involved in the collision. It was on the basis of such affidavits and photographs that the verdict was set aside. In the petition and brief filed in this Court on behalf of the plaintiff, it is insisted, first, that the affidavits and photographs were improperly considered by the trial court, because they were never made a part of the record, and, second, that they were in any event insufficient to warrant the trial court's action in setting aside the verdict.

When the verdict of the jury was returned, the defendant by counsel promptly moved the court in arrest of judgment and to set aside the verdict and grant the defendant a new trial. The court order setting forth these proceedings states that the 'motions were received by the court and the defendant is granted a period of ninety days from the date of said verdict within which to file his grounds and reasons in support of said motions.'

The printed record contains that which appears to be a written statement of grounds assigned by counsel for the defendant in support of the motion to set aside the verdict and grant the defendant a new trial. It bears in the printed record the following caption or designation. 'Motion To Set Aside Verdict Filed July 28, 1958.'

Appearing in the printed record also are two affidavits made by Bud Daniels and James Gibson, respectively, which, along with the photographs, were obviously designed to be and actually were considered by the trial court in support of the motion to set aside the verdict and grant a new trial. The record fails to disclose that either of the affidavits was filed or marked filed, either by the trial court or the clerk thereof.

An order entered by the trial court on September 23, 1958, contains the following language: 'And the court having prepared a written memorandum of the reasons of his ruling in setting aside the verdict, on motion of the defendant said written memorandum is ordered made a part of the record in this action.' The written opinion of the trial court which was made a part of the record contains the following language:

'Error is assigned from the evidence taken without objection of G. H. Rollins who was recalled to give certain evidence about the existence of concrete head walls on a culvert at the scene of the collision. It is urged that photographs which have been filed and two affidavits which have been filed to the effect that there are no abutments sticking up above the level of the road are contrary to the evidence given by the said Rollins. There is some ambiguity in this testimony and since the argument of counsel for the plaintiff was not reported, just how this matter was put to the jury in the argument is not subject to strict ascertainment. The pictures and affidavits indicate that there are no head walls extending above the level of the road to any extent, but I am afraid that the evidence and the concluding argument were urged to the jury to the extent that they were of the opinion that said head walls did exist above the level of the road, which in effect would have discredited all of the defendant's evidence in the case.'

The affidavits and the photographs, upon which the court relied as a basis for setting aside the verdict, were not formally made a part of the record by a court order, nor have they been made a part of the record before this Court by bill of exception or certificate in lieu thereof. The eminent trial judge in his written opinion makes reference to argument of counsel for the plaintiff dealing with head walls on the bridge or culvert. Such remarks of counsel were not made a part of the record before this Court by bill of exceptions or certificate in lieu thereof. As has been stated, the affidavits were copied in the printed record, but the photographs are not before this Court physically or in any other sense.

Bills of exceptions and certificates in lieu thereof were unknown to the common law and are wholly creatures of statute. Burks Pleading and Practice (4th Ed.) page 539, Section 301. Code, 56-6-35, dealing with bills of exceptions, provides that a party 'may avail himself of any error appearing on the record, by which he is prejudiced, without obtaining a formal bill of exceptions, provided he objects or excepts on the record to the action of the court complained of, and provided it is such a matter as can be considered without a formal bill of exceptions.' (Italics supplied.) '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.' Hinton Milling Co. v. New River Milling Co., 78 W.Va. 314, syl. 4, 88 S.E. 1079, 1080; Penix v. Grafton, 86 W.Va. 278, syl. 1, 103 S.E. 106. Code, 56-6-36, provides for certificate in the form therein prescribed 'in lieu of' a bill of exceptions.

It is not necessary to detail what is embraced in the 'record' under the law of this State, except to state that the record itself does not include photographs, the written opinion of the trial court, oral arguments of counsel, written grounds assigned in support of a motion to set aside a verdict, nor even the testimony itself, unless made a part of the record by one of the methods prescribed by law. Burks Pleading & Practice (4th Ed.), Section 301, page 539. Instructions given and refused may be made a part of the record by proper notations appearing over the signature of the trial judge. Code, 56-6-20. The writ or process commencing an action at law or suit in equity is a part of the record. Code, 56-3-32. Affidavits, including affidavits urged in support of a motion to set aside a verdict and grant a new trial, are not a part of the record. State v. Jones, 128 W.Va. 496, syl. 2, 37 S.E.2d 103; Snodgrass v. Charleston NuGrape Co., Inc., 113 W.Va. 748, syl. 3, 169 S.E. 406; Townley Bros. v. Crickenberger, 64 W.Va. 379, syl. 4, 63 S.E. 320; 4 A C.J.S. Appeal & Error & 773, page 636. 'The mere filing of papers does not make them a part of the record. The rule book and the order book are the proper sources of information as to what constitutes the record.' Burks Pleading & Practice, (4th Ed.), Section 425, page 824. 'Nothing else that transpired during the trial in the court below will be considered a part of the record in the appellate court, unless made so by a bill of...