*1 of a basis negligent Therefore, injury employee. insofar as the language “or otherwise in- wrongfully jures,” contained syllabus in the body in the of that view, indicates a contrary ex- language pressly disapproved.
The Court is not unmindful of the in Jones v. language Waterman S.S. Corp., F.2d 992 and in some texts other cases express counter to view noted above. however, We are the opinion, deny that to plaintiff’s action the instant case reflects the better reasoned view.
For the reasons stated herein the Cir- judgment cuit Court of Raleigh County is affirmed.
Affirmed. Crusenberry Grace L.
v. Railway et al. Company, Norfolk & Western Dyke Orland D. Van Railway etc. Company, Norfolk & Western (No. 12971) 26, January Submitted 1971. Decided March 1971. Dissenting Opinion April 2, 1971.
Petition Rehearing April 1971.
Rehearing Denied June 1971. *2 Crockett, Crockett, Crockett, for Tutwiler & J. Strother appellant. Jr., Griffith, Dyke.
Owen D. Van R. for Orland appellee H. Bal- Shinaberry, Shindberry, Ballard & F. W. Sterl lard, for Crusenberry. appellee Caplan, President: an appeal
This a on a motion to reinstate proceeding and granted by subsequently which had been dismissed as improvidently awarded. a
In Circuit Court civil action instituted in the in a verdict County McDowell a trial before resulted jury $15,000.00 in the amount the plaintiff, favor of D. Orland Grace and a in favor of Crusenberry, verdict Dyke, cross-bill, $5,000.00. After Van on the sum of his a motion and award new to set aside the verdicts and motion considered, trial was the court overruled An Norfolk &West- appeal sought by entered a final order. was ern the defendant Railway Company, this Court on June 1970. granted by receiving from the Upon Clerk this Court that supersedeas awarded, had been the appel- lees, July 14, on 1970, filed the appeal. motion dismiss matter This was heard on September 1970 and on September 14, motion 1970 the the appeal dismiss granted. 22, 1970, Subsequently, September the appel- lant filed its petition to reinstate the The matter appeal. for was set hearing and was for submitted deсision on January 26, 1971, on the briefs argument counsel for respective parties. ground for the motion to dismiss the was the
failure the appellant to give notice to the had filed the Circuit Court of County McDowell transcript of had taken at for trial purpose presenting Court, as required by Rule 80 Virginia West Rules of Civil Procedure. The appellees allege, in addition to failure to give such *3 notice, that they did not a of receive the copy transcript had no actual knowledge filed; that it had been that they were deprived by of the right (c), afforded Rule 80 R.C.P. to assign error оmission in of the transcript and testimony trial; taken they at the and that deprived were of the opportunity provided by Section II, of Rule the the Supreme Appeals, Rules of to file notes of argument opposition to the for petition appeal. Therefore, the appellees, reason this Court does have jurisdiction not to consider tran- appeal, this the script proceedings and evidence having not been prop- made a erly part of the record. appellant 80(c)
The Rule position takes that is jurisdictional not comply and that its failure to with the provisions thereof nothing more error than harmless the appellees can affirmatively they unless show that been prejudiced by its failure to notice of the give filing transcript. It by appellants is contended that the appellees prejudiced were not alleged this techni- cal omission. it, against entry judgment
Subsequent to Railway Company, & Norfolk Western appellant, Court, filed this with an seeking preparatory transcript County the Circuit Court of McDowell It is the trial. testimony taken at had and proceedings give it did not expressly admitted by Rule required as appellees nоtice of for the however, that counsel alleges, 80(c), R.C.P. It filed had for been appellees knew ordered. had been copy transcript and that a with compliance constitutes claims that substantial not appellees were rule and demonstrates that notice. required give failure to prejudiced its assumed they acknowledged by appellees It is an appeal appellants perfecting that the in the course did However, they would order copy transcript. prosecuted, actually know that would Clerk they had thereof from the knоwledge being first had been supersedeas this Court that a of error and writ of said granted. The assert reason they deprived failure to notice required to examine the errors opportunity to this Court. prior omissions submission (c), provides: Rule 80 filing transcript. “Notice —When had and taken at of the trial is filed to court, causing party all be filed shall promptly give other parties.” whether, issue here is the circumstances above, of the appellant described the failure *4 comply requirement of Rule 80 constitutes sufficient basis for heretofore the dismissal granted. allegatiоn support does not
that for the a for an counsel knew that a copy had been filed and ordered. no had showing appellees’ There is counsel
159 knowledge and mere assumption they did does not fact, suffice. In noted, as an showing, there is affirmative admitted appellants, that at time appellees given notice that a petition had been or filed transcript was ordered. 80(c)
We must now determine the character of Rule and decide literally whether it must be followed whether it merely procedure suggests which should obeyed. It is of utmost of this significance to the resolution issue that said rule is couched in mandatory language. not only provides party causing to be filed shall thereof, but he shall promptly give such notice to all parties. other The use of the word “shall”, any modification, without makes unquestionably the direction therein mandatory. The word use “promptly” strongly accom- urgency indicates plishment of such direction.
The word
com
“mandatory”
imperative
connotes an
mand. That
mandatory
which is commanded in a
statute
must be done or the
are
proceedings to
it relates
Siedschlag
void.
May,
538,
v.
Ill.
That the
N.E.2d 836.
Rides of
Procedure,
Civil
having
promulgated
been
adopted by
Court,
of a
the force
effect
statute
1931,
is unquestioned.
Code,
51-1-4a,
amend
See
as
ed;
Mann,
In re
644,
860;
Boggs
W.Va.
S.E.2d
Settle,
v.
330,
This occasions, numerous has held that word “shall”, com- imperative connotes mandatory mand. Sencindiver, In Terry v. S.E.2d 651, 171 W.Va. 480, the quoted Board Trustees Police- from men’s Pension or Huntington Fund City v. Relief City Huntington, 142 fol- 225, W.Va. 96 S.E.2d lows: “Axiomatic in statutory the law construction postulate ‘shall’, that the word in the absence of some- thing showing statute contrariwise on the intent Legislature, be construed in a manda- should Gore, tory In Baer sense.” S.E. L.R.A. 1917B,723, provisions “The said: enactment
160
are
They
positive
terms.
imperative
expressed
are
in con-
‘shall’,
used
Generally,
and
when
unequivocal.
for
open
statutes,
way
leaves
stitutions and
Mann,
In re
151
also
W.Va.
of discretion.” See
substitution
County
The
Staley
ex rel.
860;
State
v.
S.E.2d
827; and
431, 73
Wayne County,
S.E.2d
W.Va.
Dawson
The contention that Rule technicality comply bodies a mere and that the failure to error, show therewith is harmless unless merit. specifically they prejudiced, were is without how mandatory. This rule is The reason therefor is thereby, appellees, upon receiving required can rights. They can take certain their steps protect if there examine the so filed and determine could Further, were therein. they errors omissions They opposition appeal. file brief in action the appellant’s of these courses of deprived (c), required by failure to notice as Rule are considerations can procedural These material which appellee. of an rights affect the seriously its contention that in furtherance appellant, says that under Rule technicality, a mere omission is error. It relies R.C.P., constitutes harmless such omission “The rule: following language on the principally disregard must every stage court at any error or defect in the proceeding the substantial rights parties.” (Italics sup- affect plied.) While, We do not as indicated Rules agree. 61, R.C.P., designed the rules are expedite of civil actions and to obviate simplify determination *6 necessity the or actions for mere dismissing reversing of irregularities, against technical or guard defects we must con- oversimplification. of rule be The function the must sidered, rights” may and of the parties wherе “substantial affected, be to comply as noted in Rule the failure with waived, the of requirements rule, the unless should not be considered above, 80(c) harmless error. As Rule noted can importance appellee. appel- be vital the By lant’s failure to the notice mandatorily required therein, the appellee can suffer harm. An irreparable erroneous transcript may court; be in the appellate filed also opportunity the the afforded to under this appellee, rules, to to opposition Court’s file brief in the for appeal right by wаs lost. not afforded While this is (c) Rule 80 it is nonetheless in the significant consideration of that rule’s purpose.
It is shown the the instant case that pleadings the appellees deprived right “assign were of their to error or omission in the proceedings had taken at the trial.” The appellees’ they motion to that alleged dismiss also were appeal “unaware the for filing appellant’s petition deprived were Section opportunity provided by 1 of II, Rule Rules of Supreme the Appeals, file notes of argument opposition petition.” We believe thаt appellees have made a that their showing rights were prejudiced by appellant’s failure com- ply (c), with Rule 80
The appellant that appellees, by raising asserts not sooner, Rule 80 the requirements issue waived thereof and cannot It complain. says that counsel now for knew, the appellees period for the of time that this Court considering that petition, the notice in issue had rights appellees’ Their to assert not been failure given. a waiver. constitutes (c), says appellant, under Rule require- (c) is jurisdictional While Rule 80 not waived, are of the ments we record fail to support reflected circumstances only can act This Court contention waiver. record that of record. is revealed matters comply even appellant attempt did not comply (c). appellant requirement Rule alleged showing, There is contend otherwise. peti- counsel argument, knew fact, affirmatively In appeal tion had been filed. knowledge shown that the had no appellees until the Clerk of this they received notice from that an neither did granted; had been any knowledge their counsel ap- after the 'in the circuit office. Soon clerk’s granted, notified had been pellees they 80(c) by filing Rule rights asserted their under *7 In the this a motion to these circumstances dismiss. action of does not constitute waiver requirement 80(c). of Rule
Further 80 a mere contending that Rule embodies the tran- technical asserts that requirement, script Court, filed in satisfying procedur- has been this al requisites. do not with this While agree We assertion. Court, is on file in we believe that the transcript this rule in accordance contemplates such to be done with of the If this is not mandatory direction rule. and, done us аbsence properly is before by waiver not be appellees, it considered. will requirement The of Rule comply failure to (c), appeal. 80 not of preclude right R.C.P. does itself failure, however, preclude by Such consideration of the had and The Lia- Employers’ at the testimony taken trial. See Accident bility Corporation Assurance v. Hartford 212; Company, 158 Indemnity 151 W.Va. S.E.2d Pettry Company, v. and Ohio Chesapeake Railway 729; Davis Phillips, S.E.2d v. W.Va. 280, 83 in the S.E.2d 699. An examination of the record readily instant case the errors which upon reveals matters, the appellant evidеntiary concern relies pertinency only can which to be determined aby testimony. consideration Since above, such noted not before this transcript, as is Court, the of the appeal reinstatement would be useless. The reinstate, therefore, motion to is denied.
Motion denied. Calhoun, Judge, dissenting:
Respectfully, I dissent.
In order I to arrive at a proper decision believe it is beneficial legal principles to consider applicable exceptions bills of and certificates lieu prescribed which were authorized and Code, 1931, 56-6-35 and 36 before those statutes were superseded Procedure, by the of Civil particularly Rules (a). R.C.P. 80 of ex- jurisdictional of bills aspect ceptions or certificates in lieu thereof has been sometimes stated loosely, broadly, inaccurately. and perhaps many years excep-
This Court held ago bills tions statu- signed after the expiration prescribed tory “are and are no period signed jurisdiction, without Jordan, Jordan pt. the record.” v. 48 W.Va. that, syl., 37 S.E. held subsequent 556. In case it was statute, after expiration prescribed time bills; “there nor can jurisdiction sign juris- diction to do so Crowe parties.” be conferred consent Corpоration Town, 91, pt. syl., Charles *8 of Shelton, effect, S.E. 330. To the Hall v. same see 592, cases, course, 4 12. relate to pt. syl., 116 S.E. These of part of a trial court to make matters jurisdiction the record rather than of this Court. jurisdiction that, timely
It was held inasmuch as the this jurisdiction execution of involved exceptions bills 164 raised courts, jurisdictional question “may
trial
that
Webber,
by this Court of
motion.” Grottendick v.
own
798,
134
pt.
syl.,
recognized
W.Va.
1
In some of Court, the cases decided this held that a bill exceptions or a “is certificate lieu thereof necessary jurisdiction this to consider matters which must be madе a part proper bill of exceptions- certificate in lieu thereof.” (Italics Davis supplied.) 280, 283, Phillips, W.Va. S.E.2d I background, 700. In that if reason transcript of the trial proceedings has- not been made part of the record, “jurisdiction” the Court no- on this has appeal to consider matters contained in On transcript. hand, other I am of the firm that if tran- script trial properly has been made record, duty our constitutional and statutory to entertain and questions, decide the arising upon appeal is mandatory.
The legal principles previously referred to-in rеlation to Prather, of exceptions bills were discussed Pozzie v. Daraban, W.Va. S.E.2d Rollins v. 369. S.E.2d The Court recently made the following statement “* * * relation to the of R.C.P. 80 provisions (c): lack of notice of of the transcript deprive would not jurisdiction Court of grant from the judg- ment although upon this Court would not have jurisdiction to consider matters which must be made a *9 part record a proper transcript of the proceed- ings.” The Employers’ Assurance Liability Corporation v. Accident and Indemnity Company, 151 W.Va. Hartford 1062, 1075, S.E.2d 219-20.It be noted will that the foregoing quotation does not state or imрly that the giving of notice is in any a part sense of process of making transcript of part the record under R.C.P. 80.
Bearing mind that 'bills and certificates of exceptions have been abolished 80(f), R.C.P. it pertinent is consider the present method of making testimony other proceedings of a trial a of part the record. These provisions are 80(a) “(a) R.C.P. and are as follows: When transcript stenographically reported proceedings of part record.—When testimony had and proceedings of taken at a hearing trial before the court are stenograph- ically or mechanically reported by the official court or other authorized reporter, duly transcript certified becomes a part when it record action is with the during court civil pendency of the filed action or at any (Italics time In supplied.) afterward.” Rose, Lester v. 575, 587, 80, 89, 130 S.E.2d Court stated: “Under the provisions 80, R.C.P., of Rule is only necessary for duly the official court reporter certify the transcript and file it with the Court.”
It is obvious from the fact that bills of exceptions been abolished 80(a), and from language of R.C.P. which has been quoted above, immediately thаt where proceedings had taken at a in a trial trial court of record reported by duly are “a reporter, court certified thereof becomes a part * * the action when it is (Italics with the court *.” filed supplied.) 5(e) “Filing as is follows: — court The filing pleadings and other papers defined. with the court required by these rules shall be made them filing court, with the clerk of the note who shall date, thereon the filing except judge may that the permit the papers him, be filed with which event he shall note filing thereon the date and them forthwith transmit clerk; or the office of the thе notation the clerk
judge any constitutes paper date such filing and such then becomes a paper, paper the record in court.” the action order of the without (Italics clear from the of R.C.P. supplied.) language (a) (e) and R.C.P. 5 reporter’s the court *10 of the trial court involved in proceedings appeal, this by the including testimony, became a the record the proper mere thereof in form and in a proper manner.
It is not in by controverted the Court’s this opinion case the court reporter’s transcript became a part оf the record. No of trial court element jurisdiction was involved in the the process making a part of the record. The Court not under- take to that, reason, determine for some has ceased to a part be of that record. It is conceded in Court opinion jurisdic- its that “Rule 80 is not tional” and that “requirements” be waived. ! is not denied that clerk of trial court
transmitted to the clerk of a this Court record of the case as required Code, 1931, of him a official public as record, 58-5-6. The including the court reporter’s tran- script of the evidence and other proсeedings had at the trial, thereby became available for our inspection consideration. Even after record or the designated portion thereof is in printed any case, Court, by this reason of Section 10 of Rule Court, may IV of this consider other portion of an original duly certified clerk of the trial court and filed in the office of the clerk of this Court.
It is not contended appeal in was dismissed this case because of any jurisdiction lack of on the part of the trial court or of this Court. The had appellant constitutional statutory right and a to apply this Court this; and, for in a appeal having case such as an appeal been granted, the appellant had constitutional and stat- utory right to have considered and appeal decided VIII, Section Constitu- merits Court. Article this Code, process 58-5-1. Virginia; tion West denied that has been reasoning by appellant denial, are case, in and a basis for such right legal this to be way not stated the Court’s If under comprehensible to me. this were a timely bill practice, involving earlier failure to obtain exceptions, decision this case would question easy. I am Court сomprehend unable to basis the upon what case to any jurisdiction, authority had power dismiss the after had its properly granted properly pending before statutory pursuant right ap- his constitutional and pellate review.
The motion to that the appeal alleges dismiss does not have “jurisdiction” consider that, therefore, improvidently it should be dismissed “as *11 any awarded.” The Court in not assert does lack of jurisdiction. appeal not that the was does state “improvidently awarded.” It is obvious to me that Court studiously avoided assertions because making such it is cleаr that the it properly granted, was legally and properly was and that the Court did pending in any not sense “jurisdiction” lack when dismissed.
The solely ground was dismissed on the failure to comply of R.C.P. following language with (c): “When a had and proceedings of the testimony taken court, at trial is filed the party causing it to be filed shall notice thereof promptly give all parties.” to other We should be mindful of the fact giving thereby of the notice required part is or process procedure by the transcript which “becomes a part of the record” R.C.P. 80 pursuant (a). Such notice no рart (e), is of the or under process procedure, in transcript, which when filed the office of the court, clerk of the trial awith notation thereon of proper of the filing, date of the “becomes court.” order of the action without “Rule held that properly Court has Inasmuch as the “requirements” and that not 80(c) jurisdictional” is waived, necessarily follows it be merely pro rule is in that notice contained requirement not state in this case cedural in character. The Court dignity or any status enjoys notice requirement the1 decision entire other The procedural requirement. than accorded having the Court’s upon this case is based which significance inordinate wholly “shall” a word purpose at the basic spirit is variance with based That is major premise Rules of Civil Procedure. “con “shall” should proposition that the word mandatory in a Just how the mandatory strued sense.” or to warrant operates character word “shall” in this of an appeal properly pending authorize dismissal in the explained opinion. be at to me to present decision case seems Miller, 154 Piper the recent decision variancе with (173 662, in stated 173 S.E.2d all 666): that the defendant appear S.E.2d at “It would Rule undier practical had the purposes required a tech- (c) R.C.P., be considered although may notice of the nical error not to give separate jurisdictional it is not prejudicial (Italics supplied.) in such case.” error regard word
This Court has hesitated never mandatory than when rather merely directory “shall” as dictate appears common sense justice substantial of this Among done. decisions many that such should be *12 statute, a “shall”, used Court in the word when which are directory mandatory merely not to but was held be Nuckols, 736, 166 S.E.2d 152 following: State v. W.Va. 37, 158 S.E.2d Kessel, 152 3; rel. v. W.Va. Mynes State ex 142 Carduff, v. cited; State 896, and cases therein numerous 502. 18, 93 S.E.2d W.Va.
The word “shall” merely has also been di- construed rectory VIII, when used in Article 5 of the Con- Section stitution of West Virginia which is as follows: “When judgment supreme decree is reversed or affirmed court of appeals, the record every point fairly arising upon of the case shall rea- decided; be considered and and the sons therefor shall writing pre- be stated in and concisely served case; with the record of shall the duty be of the court to adjudiсated prepare syllabus points thereof, each case concurred in three of the judges shall prefixed report be to the published case.” (Italics For supplied.) construing cases word “shall” as thus used in the direc- merely Constitution tory Smith, rather than see State v. mandatory, W.Va. 347, pt. 573; Henshaw syl., Rutgers 193 S.E. v. Globe & Fire 556, 565, 15, Insurance Company, 112 W.Va. S.E. 19; Horner Amick, 40; v. 172, pt. syl., 61 S.E. Hall & Smith Virginia, v. Bank 3pt. syl.; W.Va. Davis, Henry 5pt. syl.
I am applied unable to the Court has comprehend why more strictly harshly and more the word “shall” when used in than the same the Rules Civil Procedure when word is used in and even in the Constitution. statutes R.C.P. 1 is as follows: all trial govern procedure “These rules suits, or other actions,
courts of record in all of a nature whether judicial proceedings civil any and in cognizable at or in equity, as eases law actions, suits, appellate review or other judicial proceedings, the qualifications shall be con- exceptions They stated in Rule 81. inexpensive strued just, speedy, to secure action.” every (Italics supplied.) determination of error, harmless is as follows: dealing with or the exclu- “No error in either the admission or defect in rul- sion of evidence and ing error anything done or omitted or order or in ground by any parties grant- court or or for setting trial or for aside verdict ing new disturbing vacating, modifying otherwise *13 judgment order, ac- refusal take such unless tion court inconsistent sub- appears The every stage at justice. stantial court must error or proceeding any disregard defect proceeding which does not the substan- affect tial rights parties(Italics supplied.) Rules It will be noted that R.C.P. states that and inex- be just, speedy “shall” construed to secure the action; R.C.P. pensive determination and that every or de- disregard states the court “must” error any in the affect fect which does not the substantial proceeding and the rights parties. word “shall” Certainly as as and as fully mandatory imperative word “must” are re- (c) the word as that word is used “shall” lating transcript. notice of giving Settle, of Boggs In the point syllabus second ap- “On 145 S.E.2d stated: the Rules involving an action covered peal case Procedure, disregard regard of Civil this Court will error, pro- in the irregularity defect or harmless not affect the sub- ceedings in the trial court parties.” rights stantial con- that the appellant The Court in its opinion states “em- of R.C.P. 80 requiremеnt tends that the notice I do understand technicality.” bodies mere Cer- for the makes such contention. counsel requirement proper, I I recognize do that the tainly not. conten- My and not technical. earnest purposeful merely made needlessly tion is the Court this case has unwarranted, application harsh “technical” rule. states, effect, ap-
The Court in its failure prejudiced by been pellee conceivably (c). Court, in notice of R.C.P. requirement resulting appellee, to the undertaking prejudice show fail- following “By makes statement: therein, required mandatorily ure to can appellee suffer harm. An tran- irreparable erroneous script may court; filed in the appellate oppor- also the tunity rules, afforded to the appellee, under this Court’s to file a brief in opposition (Italics
lost.” than During the of more supplied.) period Court, I I years twelve while have been a member opposi- have known few briefs filed in only relatively *14 tion to In relation to the petitions appeal. possibility tran- from of an erroneous prejudice resulting 80(b) I script, First, make four observations: R.C.P. provides re- that а the official court certified facie porter as therein be deemed prescribed prima “shall a correct statement of the had and Second, recall, taken at I any hearing or trial.” when the case argued, appellee, response counsel for the to a bench, from the question propounded stated inspection of the disclosed no error therein Third, omission therefrom. 60(a) provides correction of be made even any part may Code, Fourth, after the appeal. case is 58-5-8, and of the Rules of this Rule VIII provide рro- means this Court whereby require court duction before it of of the record of the trial any part which has been omitted. III,
Article Section 17 of the Constitution of Vir- West and ginia provides: open, “The courts of this State shall be him, person, for an done to in his every person, injury due course property reputation, remedy shall sale, law; and shall be administered without justice the Court in denial or delay.” my opinion technicality sacrifice sub- resort stance, denied to the its constitutional has decided its merits upon to have its statutory right and. properly legally perfected after the appeal was in the Court. pending stated, I mo- would sustain the
For reasons dis- having reinstated as been tion to have its to do legal authority so. this Court without missed