Hayes v. Wills Dairy, Inc.

Grason, J., delivered the opinion of the Court. This case is an action for damage caused to the appellant’s touring car solely by the alleged negligent operation of the appellee’s trailer-tractor by its agent. A jury in the Superior Court of Baltimore City returned a verdict for appellant for the full amount of the damage claimed. At the close of all the evidence, appellee offered a prayer for a directed verdict, which was denied by the Court.

After the verdict was rendered by the jury appellee filed a motion for a judgment in its favor notwithstanding the verdict. The Court granted that motion and entered a judgment for appellee for costs. From this judgment the appellant brings this appeal. It may be stated at the outset that the adoption of Rule Eight of this Court, which provides for the practice of filing a motion for the entry by the trial court of a judgment notwithstanding a verdict has been rendered by a jury to the contrary, did not affect in any way the practice or the law theretofore obtaining concerning what is the record in a given case, or what it should contain, in cases where appeals are taken to this Court.

So, what was necessary in this regard before the adoption of Rule Eight by this Court is necessary now. If the appellee had not filed its motion for judgment notwithstanding the verdict, but had appealed from a judgment entered on the verdict of the jury, it cannot be doubted that it would have been required to have the trial court sign proper bills of exception. In such a case the absence of bills of ⁶⁷⁴ exception, even though a full copy of the testimony taken ■ at the trial had been filed with the clerk and transmitted to this Court, would have been fatal. This Court, in such state of a record, would not have the power or authority to consider the testimony not certified by the trial court by bills of exception, and hence it would have been impossible for it to say the lower court was wrong in not granting the prayer for a directed verdict.

In the face of such a record the appeal would have been dismissed. In considering the motion non obstante veredicto, the trial court was reconsidering its ruling made at the trial of the case on the demurrer prayer. It was considering the question of whether the appellant offered at the trial any evidence legally sufficient to be submitted to the jury. Of course, in acting on the motion non obstante veredicto it considered the evidence offered by appellant at the trial, and it came to the conclusion that no evidence had been adduced by appellant legally sufficient to be submitted to the jury to show primary negligence on the part of appellee.

We are asked to review that ruling and we find that the trial court has not certifiéd the evidence by the signing of bills of exception. It is well to bear in mind that this is a case that was tried before a jury, and under the circumstances here the evidence offered could not possibly be considered as a part of the record unless certified by the trial court by the signing of bills of exception. In times long past, the law did not provide for bills of exception, and hence the appellate court never had before it testimony given before the trial court. This worked great injustice.

It was corrected by the Statute of 2 Westminster (18 Edward I, Chapter 31) which is in force in Maryland. Alexander’s British Statutes (Coe’s Ed.) Vol. 1, Page 165. “Unless presented in this mode” (that is, the mode provided in the statute above mentioned) “the Court of Appeals has no power to review the ruling.” Pleading & Practice, Poe (Tiffany’s Ed.) Vol. 2, Sec. 310. See note 2 for cases. ⁶⁷⁵ The “mode” referred to is the signing of bills of exception by the trial judge. “The record, strictly speaking, consists of