Shipley v. The Virgin Ian Ry. Co.

• Decision Date: 05 October 1920
• Docket Number: No. 4087.,4087.
• Citation: 87 W.Va. 139
• Court: West Virginia Supreme Court
• Parties: Stephen A. D. Shipley v. The Virgin ian Ry. Co.

87 W.Va. 139

Stephen A. D. Shipley

v.The Virgin ian Ry. Co.

No. 4087.

Supreme Court of Appeals of West Virginia.

Submitted September 21, 1920.

Decided October 5, 1920.

1. Courts Circuit Court of Kanawha County May Review: Order of Court of Common Pleas Awarding a New Trial in Advance of New Trial.

The Circuit Court of Kanawha County has jurisdiction by writ of error to review an order of the Court of Common Pleas of that county, awarding a new trial, in advance of the new trial and in the absence of a final judgment in the case. (p. 141).

2. Same Cause Transferred from-Court of Common Pleas of Kanawha Coun'ty to Circuit Court Thereof May be Heard Upon the Original Record.

The hearing of a case transferred from the Court of Common Pleas of said counly into the Circuit Court thereof, by writ of error, may, by virtue of the statute creating the former court, be heard upon the original record, and a transcript of the oral evidence taken in such case, certified by the official stenographer of the trial court, constitutes a part of such record, by express provision of said statute, (p. 141).

3. Exceptions, Bill oeSkeleton Bill Held to Make Evidence Certified by Its Stenographer a Part of Case.

A bill of exceptions taken in said Court of Common Pleas, which does not copy the evidence, but says the evidence and the proceedings were recorded by the official stenographer, "and are in the words and figures following to-wit", and, further, immediately afterwards, that "the foregoing was all the evidence" in the case, makes the evidence certified by the stenographer a part of it. (p. 141).

4. Appeal and Error Propriety of New Trial Granted by Special Judge Who Did Not Preside at Trial Depends Solely on the Record Thereof.

An award of a new trial by a special judge who did not preside at the trial of the case is tested, as to its propriety, solely by the record of the trial as preserved and is not aided or strengthened by any presumption arising from supposed personal or judicial knowledge of the character, appearance and demeanor of the parties, witnesses and jurors, (p. 143).

5. New Trial Verdict Cannot be Set Aside Because Inadequate Unless it Results from Jury's Prejudice, Corruption or Mistake.

To warrant the setting aside of a verdict on the ground of mere disparity between the amount thereof and what it might have been, the difference must be great enough to make it apparent that the meagerness of the award was the result of prejudice, partiality, passion, corruption or mistake on the part of the jury. (p. 145).

6. Same Verdict in Action Under Federal Employers' Liability Act Less Than Evidence Would Have Sustained Cannot be Disturbed as Inadequate.

If, in an action for damages for a personal injury, the evidence pertaining to the right of recovery is conflicting and sufficiently probative in each direction, to sustain a verdict for either plaintiff or defendant, a verdict for the plaintiff in which the damages are assessed at a sum very much less than the evidence, facts and circumstances would have sustained, if awarded, cannot be disturbed by the court on the ground of inadequacy, (p. 145).

7. Same In Action Under Federal Employers' Liability Act Held That Verdict Could Not be Set Aside as Inadequate.

If, in an action for damages for a personal injury, there is evidence tending to prove permanent and total deprivation of the earning power of the plaintiff and also evidence, facts and circumstances constituting a reasonable basis for jury belief that total disability will not be permanent, and the verdict is much smaller than it should have been, if founded upon the theory of permanent and total disability, the trial court is not warranted in granting a new trial on the theory of inadequacy of the verdict. (p. 145).

8. Same Verdict Much Smaller Than One Founded on Theory of Same Injury to Normal Person Held not Inadequate. If, in such an action, the evidence would sustain the theory of permanent and total disability, but would also sustain a finding of incurable disease in the plaintiff, which justifies the view that his expectation of life and earning power is far below that of a person whose physical condition is normal, a verdict therein very much smaller than one founded upon the theory of such an injury to a normal person should be, cannot be disturbed on the ground of inadequacy. (p. 152).

(Williams, President, absent).

Error to Circuit Court, Kanawha County.

Action by Stephen A. D. Shipley against the Virginian Railway Company. A verdict for plaintiff in the court of common pleas of Kanawha county was set aside, and plaintiff granted a new trial on the ground of inadequacy of the verdict. The circuit court on writ of error reversed such order, reinstated the verdict, and rendered judgment thereon for plaintiff, and plaintiff brings error. Affirmed.

Lon T. Pilchard, L. L. Dunbar and C'has. J. Hogg, for plaintiff in error.

Brown, Jackson & Knight, Williams, Loyall & Tunstall and Hall, Wingfield & Apperson, for defendant in error.

POFFEx ba rger, j c doe:

The ultimate purpose of this writ of error is retention of the benefit of an order of the Court of Common Picas of Kanawha County, setting aside a verdict for the sum of $5,000.00, rendered in an action for a personal injury, brought under the Federal Employers' Liability Act, and granting the plaintiff a new trial, on the ground of inadequacy of the verdict. On a writ of error from the circuit court of said county, that order was reversed, the verdict re-instated and a judgment rendered thereon in favor of the plaintiff. This writ of error goes to the judgment of the circuit court.

The writ of error from the circuit court was not prematurely awarded. In other words, there was jurisdiction in that court to grant a writ of error to the judgment of the court of common pleas, setting aside the verdict and awarding a new trial, before such trial occurred. Whatever the law may be in other states, there can he no question about the jurisdiction of the Circuit Court of Kanawha County, in this instance. The statute creating the Court of Common Pleas of Kanawha County expressly gives a right of review, in such cases. Acts of 1915, ch. 109, sec. 17, par. 9. The terms of that statute are express, clear and unequivocal and its validity is in no way questioned. It says the writ shall lie "without waiting for the new trial."

A presumption in favor of the correctness of the decision of the court of common picas would have sustained it in the circuit court and precluded right in that court to reverse it, if the evidence adduced on the trial in the former court had not been before the latter; for it is not pretended nor suggested that the verdict was set aside upon any ground other than inadequacy of the damages assessed, and the correctness of the verdict in that respect depended, of course, upon the evidence. To get rid of a verdict, it is necessary to show that it is wrong, and, ordinarily, that cannot be done without a test thereof by the evidence. Schwarzchild & Sulzberger Co. v. C. & 0. Railway Co., 59 W. Va. 640; Wood v. King, 59 W. Va. 418; Dudley v. Barrett. 58 W. Va. 235; Coal & Coke Railway Co. v. Joyce et al, 58 W. Va. 514; McKcndree v. Shell on. 51 W. Va. 516. Since the evidence in the case was before the circuit court and contstituted a part of the record brought up to that court by the writ of error, this legal proposition cannot be successfully invoked by the plaintiff in error. The record brought to this court contains the declaration and all of the orders entered in both of the lower courts and, in addition thereto, what may be termed, a skeleton bill of exceptions, designated "Bill of exceptions No. 1," and an order, entered in vacation of the court of common pleas, by the judge of that court, makes that bill a part of the record of the ease. It is signed by the special judge who passed upon the motion for a new trial, and it sots out in full all of the instructions given and refused and the proceedings had upon the motion to set aside the verdict, but the evidence is not set out in it at length. As to the evidence it says: "The evidence given to the jury and the proceedings had upon the trial were recorded by the official stenographer of the court, and are in the words and figures following to-wit." Though it contains no note or direction, saying: "'Here insert the evidence" or the like, as is usual in a skeleton hill of exceptions, the language quoted from it is followed by this sentence: "And the foregoing was all the evidence offered or heard on the trial of said case." As to all other matters it is full and complete, hut, as to the evidence, it is a, skeleton bill. To say it was not the intention of the judge who signed the bill of exceptions to have the evidence certified by the stenographer or reporter read into it at this point as a part of it, would deny to the terms of this paper their plain, ordinary and unequivocal meaning, as well as their force and effect. It says the evidence and the proceedings were reported, by the official stenographer of the court, and assumes that they are in it and immediately follow in order. The next sentence treats the evidence as having been written into it, for it says the foregoing was all the evidence. That it was not actually written in is immaterial, for the sufficiency of a skeleton bill of exceptions has been repeatedly declared by this court Wilson v. Shrader, 73 W. Va. 105; Marshall v. Stalnaker, 70 W. Va. 394; Rowland Land Co. v. Barrett, 70 W. Va. 703; Cable Co. v. Mathers el al., 72 W. Va. 807; Jackson v. Railway Co., 65 W. Va. 415; DeBoard v. Camden Interstate Railway Co., 62 W. Va. 41.

Though the evidence was obviously made a part of the record it was not necessary formally to make it such, in order to bring it before the circuit court. The statute creating the Court of Common Pleas, ch. 109, Acts of 1915, dispenses with the necessity of a bill of exceptions for the purposes of review on an appeal or...