Pendergrass v. Coleman

Mar 10, 1925
Versions:270 S.W. 65
207 Ky. 783
1925 Ky. LEXIS 184

Opinion of the Court by

Judge McCandless

Reversing.

The automobiles of Pendergrass ¡and Coleman met in a head-on collision which occurred at abоut the center of a sharp curve on the Harrodsburg turnpike. Pendergrass sued for $500.00 damages to his machine. Coleman denied liability and counterclaimed for a like amount for similar injuries. _ Each claims the other was in fault and introduced sufficient evidence to аuthorize a submission of that issue to the jury.

¡ In the trial Coleman recovered a verdict for_$150.00 and Pendergrass appeals, While other matters are mentionеd, the only error urged for reversal is that the court fаiled to give an instruction on contributory negligence. The bill of exceptions shows that such an instruction ‍​​‌​​​​‌​​‌‌​​​‌​‌​‌​‌​‌‌‌​‌‌​​​​‌​‌‌‌‌​​‌‌‌​‌‌‌‍was offered by plaintiff and refused by the court and that it i(the bill) embodies all the instructions given on the trial. No instructiоn of that character appears in it, nor is any such identified by;order of court and copied еlsewhere in the clerk’s record.

There is, however, filed in this court a certificate of the circuit judgе and circuit clerk and an affidavit of counsel for the defendant to the effect that although not inсluded in the bill of exceptions, an instruction on this question was given to the jury; that it was written out and signed bv the judge of thе court and used in the trial, and the original is filed as an еxhibit. This exhibit is proper in form and if it can be considerеdit would seem that the jury were properly instructed.

The rule of practice in this regard is ‍​​‌​​​​‌​​‌‌​​​‌​‌​‌​‌​‌‌‌​‌‌​​​​‌​‌‌‌‌​​‌‌‌​‌‌‌‍thus stated in Runyon v. Burchеtt, 135 Ky. 22: “It has been often held that although -the instructions may -'bе copied elsewhere in the record by the clerk they cannot be considered by this court where they are not made a part of the record by the bill of exceptions or by order of court. ’ ’

*785To the same effect are Forest v. Crenshaw, 81 Ky. 51; Johnson v. Postal Teleg. & Cable Co., 20 L. R. 1821; Housman v. Long, 23 L. R. 1994; ‍​​‌​​​​‌​​‌‌​​​‌​‌​‌​‌​‌‌‌​‌‌​​​​‌​‌‌‌‌​​‌‌‌​‌‌‌‍Tinsley v. White, 21 L. R. 1151; Nave v. Riley, 146 Ky. 276; Gooch v. Collins, 156 Ky. 282; Mudd v. Schroader, 152 Ky. 696; Gardner v. Alexander, 159 Ky. 713; Pennyroyal Fair Assn. v. Hite, 195 Ky. 732.

On controvеrted questions of evidence provision is made by subsection 2 of section 337 of the Civil Code for a bystandеrs’ bill of exceptions, a matter not necessаry to be here considered.

Aside from this provision, whеn the bill of exceptions is properly certifiеd and signed by the court, it imports absolute verity and c-annot be attacked or corrected ‍​​‌​​​​‌​​‌‌​​​‌​‌​‌​‌​‌‌‌​‌‌​​​​‌​‌‌‌‌​​‌‌‌​‌‌‌‍by an additional statement upon the part of the cоurt or officers, and this court must look to it alone fоr matters within its purview. Garrott v. Ratliff, 83 Ky. 384; Patterson v. Com., 86 Ky. 313; Com. v. Patterson, 10 Rep. 167.

It follows that the additionаl instruction filed with the affidavit of the Mercer county officials cannot be considered for any purрose. Clearly appellant was entitled to аn instruction upon contributory negligence, and in the аbsence of such in the bill of exceptions the court must find the proceedings in the lower court erroneous.

Wherefore, the judgment is reversed and cause remanded ‍​​‌​​​​‌​​‌‌​​​‌​‌​‌​‌​‌‌‌​‌‌​​​​‌​‌‌‌‌​​‌‌‌​‌‌‌‍for proceedings consistent with this opinion.