Shipley v. Virginian Ry. Co.

• Court: West Virginia Supreme Court
• Writing for the Court: POFFENBARGER, J.
• Citation: Shipley v. Virginian Ry. Co., 87 W.Va. 139, 104 S.E. 297 (W. Va. 1920)
• Decision Date: 05 October 1920
• Docket Number: 4087.
• Parties: SHIPLEY v. VIRGINIAN RY. CO.

104 S.E. 297

87 W.Va. 139

SHIPLEY v. VIRGINIAN RY. CO.

No. 4087.

Supreme Court of Appeals of West Virginia.

October 5, 1920

Submitted September 21, 1920.

Syllabus by the Court.

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.

The hearing of a case transferred from the court of common pleas of said county 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.

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.

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.

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.

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.

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.

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.

Error to Circuit Court, Kanawha County.

Action by Stephan 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 Chas. J. Hogg, all of Charleston, for plaintiff in error.

Brown, Jackson & Knight, of Charleston, Williams, Loyall & Tunstall, of Norfolk, Va., and Hall, Winfield & Apperson, of Roanoke, Va., for defendant in error.

POFFENBARGER J.

The ultimate purpose of this writ of error is retention of the benefit of an order of the court of common pleas of Kanawha county setting aside a verdict for the sum of $5,000, rendered in an action for a personal injury brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), 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 reinstated 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 be 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 1915, c. 109, § 17, par. 9. The terms of that statute are expressed, 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 pleas 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. & O. Railway Co., 59 W.Va. 649, 53 S.E. 785; Woods v. King, 59 W.Va. 418, 53 S.E. 605; Dudley v. Barrett, 58 W.Va. 235, 52 S.E. 100; Coal & Coke Railway Co. v. Joyce et al., 58 W.Va. 544, 52 S.E. 498; McKendree v. Shelton, 51 W.Va. 516, 41 S.E. 909. Since the evidence in the case was before the circuit court and constituted 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 case. It is signed by the special judge who passed upon the motion for a new trial, and it sets 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 th e 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 bill 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, but 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, 79 S.E. 1083, Ann.Cas. 1916D, 886; Marshall v. Stalnaker, 70 W.Va. 394, 74 S.E. 48; Rowland Land Co. v. Barrett, 70 W.Va. 703, 75 S.E. 57; Cable Co. v. Mathers et al., 72 W.Va. 807, 79 S.E. 1079; Jackson v. Railway Co., 65 W.Va. 415, 64 S.E. 450; De Board v. Camden Interstate Railway Co., 62 W.Va. 41, 57 S.E. 279.

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 (chapter 109, Acts of 1915) dispenses with the necessity of a bill of exceptions for the purposes of review on an appeal or writ of error in the circuit court. Section 18 thereof provides for a hearing in that court on an appeal or writ of error upon the original papers and the recorded orders and decrees in lieu of a transcript, and in those instances in which oral testimony has been taken, upon a transcript of the evidence certified by the stenographer or other person taking the same, and expressly makes such transcript a part of the record. Its language is:

"A transcript thereof duly certified by the stenographer or other person taking the same, shall be held and treated as part of the original papers."

The defendant in error has caused...