150 S.E. 2 | W. Va. | 1929
This case was before this Court upon the issue between the plaintiff in error and the defendant, James E. McMullin, *647
McMullin applied for and was awarded a writ of error by this Court directed to plaintiff, the Grocery Company and Croy, but said writ was not served on the last two named. They, therefore, have not been before this Court. On the former review, this Court found error as between plaintiff and McMullin and reversed and remanded the case. The present writ sued out by Evelyn Collar seeks to review the judgment of the trial court as between her and defendants, Bluefield Grocery Company and R. Lacy Croy.
There is a motion by Croy to dismiss the writ of error because the plaintiff in error took no bills of exceptions. It is urged that upon appellate proceedings a complaining party must rely upon his own bills of exceptions and cannot rely upon the record or points of error that have been preserved only by bills of exceptions of another party to the action; that such is the import of section 9, chapter 131, Code, which provides that "a party must except to any action or opinion of the court and tender a bill of exceptions." What is the purpose of a bill of exceptions? Its purpose as stated long ago by this Court "is to spread upon the record and preserve the facts of the case, that the party excepting may have them, and the court's action upon them, reviewed in the appellate *648
court." Seibright v. State,
Now as to instruction No. 2, given on behalf of defendant Croy and objected and excepted to at the time by both McMullin and the plaintiff. We held on the former review that this instruction was erroneous and that the giving of the same to the jury was prejudicial to McMullin. By the same token it is prejudicial to plaintiff in error. (See former opinion.) This alone is sufficient for reversal as to Croy.
The Bluefield Grocery Company interposes a more formidable defense. It will be remembered that on the trial, the court directed a verdict for the Grocery Company. This is assigned as error, the position being taken that the case should have gone to the jury as to the Grocery Company. It is urged that McMullin was acting within the scope of his actual or obtensible authority when the accident occurred. The evidence shows no express authority in McMullin to carry plaintiff's decedent or to carry passengers generally. Was there ostensible or implied authority? That must be determined in the light of the fixed law on the subject. In the case of Christie, Adm'r. v. Mitchell,
The plaintiff carried the burden of proof and having failed to show that McMullin had express authority from the Grocery Company to carry passengers when on his employer's business, or to carry plaintiff's decedent on the particular trip, or that he had been carrying passengers with the company's knowledge though without its consent, or that the course of conduct of the agent had been such as to raise the presumption that the company knew he was carrying passengers, there was therefore insufficient evidence to sustain a verdict against the defendant company and the court committed no error in directing a verdict in its favor.
At the trial the plaintiff excepted to the action of the court in refusing her instructions Nos. 1, 2, 3, 4, 7 and 8. These instructions, which were refused, as well as all instructions which were given, are set out in full in McMullin's bill of exceptions No. 1. On the presentation of the case before this Court on the present review, counsel for the plaintiff in error seem to waive their position as to all of said refused instructions except Nos. 1, 2 and 3. They are insisted upon. We shall not quote instruction No. 2 because it refers to the alleged liability of the Bluefield Grocery Company, and we have already disposed of that matter. Instruction No. 1 would have told the jury, in substance, that it might find against either McMullin or Croy if the jury believes from all *650 the evidence and circumstances in the case that either defendant separately proximately caused the injury to plaintiff's decedent. Instruction No. 3 would have told the jury that they might find against both McMullin and Croy if the jury believed from all the evidence and circumstances that each failed to exercise reasonable care and that such failure proximately caused or contributed to the injury of plaintiff's decedent. In our opinion these instructions correctly state the law, but there was no prejudicial error in their refusal because they are substantially covered by instructions Nos. 1, 2 and 3 prepared and given by the court.
For the foregoing reasons the judgment as to the Bluefield Grocery Company is affirmed, but the judgment in favor of Croy is reversed, the verdict set aside, and a new trial awarded as to him.
Affirmed in part; reversed in part.