¶1dissenting in part:
¶2I respectfully dissent in relation to that portion of the majority opinion which is summarized in the twenty-third point of the syllabus. I believe that the Court has made a wholly unwarranted construction of Code, 1931, 55-7-6, as amended by Chapter 1, Acts of the Legislature, Regular Session, 1955. A statement of my views calls for a brief review of the statute and the amendments thereof.
¶3Since the early days of the state’s history to the present our wrongful death statutes have contained the following language: “In every such action the jury may give such damages as they shall deem fair and just, not exceeding … Some of the history of the West Virginia statute is stated in Pegram v. Stortz, 31 W. Va. 220, 316, 317, 6 S. E. 485, 537, 538. Our first statute (Acts, 1863, Chapter 98) limited a jury to an award of damages “with reference to the pecuniary injury resulting from such death.” In 1868 the statute was amended to include its present language which authorizes the jury to award “such damages as they shall deem fair and just”, but not exceeding $5,000 and the restriction to “pecuniary injury” was eliminated. In 1882 the statute was amended so as to increase the maximum award to $10,000. The foregoing history of the statute is stated in Kelley v. Ohio River Railroad Co., 58 W. Va. 216, 223, 224, 52 S. E. 520, 523, in which case the second point of the syllabus points out that under the language then and now in the statute a jury, in awarding damages, is no longer *604“confined, to compensative damages for mere pecuniary injury, but may consider the sorrow, the mental distress and bereavement of the” beneficiary of the award. The language of the statute remained unchanged from 1882 until 1955.
¶4The point I am undertaking to make is that the 1955 amendment did not add a new element of damages in the form of “financial or pecuniary loss sustained by a distrib-utee or distributees of such deceased person.” On the contrary, such items of damage were recoverable at all times from 1868 to the effective date of the 1955 amendment. This construction which even prior to 1955 permitted a recovery of damages to include financial or pecuniary loss to dis-tributees has been followed and adhered to by the Court in many subsequent decisions. Wigal, Adm’x v. City of Parkersburg, 74 W. Va. 25, pt. 6 syl., 81 S. E. 554; Yeater, Admr. v. Jennings Oil Co., 75 W. Va. 346, 349, 350, 84 S. E. 904, 905; Morris’ Adm’x v. The Baltimore and Ohio Railroad Co., 107 W. Va. 97, 108, 147 S. E. 547, 551; Black, Administrator v. Peerless Elite Laundry Co., 113 W. Va. 828, pt. 3 syl., 169 S. E. 447; Stamper v. Bannister, 146 W. Va. 100, 118 S. E. 2d 313, 317. The 1955 amendment did not broaden or otherwise alter the basic cause of action or the right to recover. It did not add a new element of damages proper for jury consideration. It merely increased the maximum amount recoverable in a restricted situation which is defined in the language of the amendment. Our inquiry leads logically, therefore, to an examination of the restricted situation in which such additional sum may properly be recovered. We need not cite authority for the obvious proposition that a plaintiff in a wrongful death action can have no right, except as authorized by statute.
¶5The 1955 amendment included a proviso in the following language: “Provided, however, If the plaintiff in such action shall prove by a preponderance of the evidence financial or pecuniary loss sustained by a distributee or distributees of such deceased persons in an amount exceeding the sum of ten thousand dollars, the jury may give such damages as shall equal such financial or pecuniary loss, not exceeding twenty thousand dollars as the total of all damages recoverable in such, action, … (Italics supplied).
¶6*605In what restricted circumstances may the jury return a verdict in excess of the basic sum of $10,000? The statute in clear and unmistakable language states that such additional recovery is permissible only if the plaintiff proves by a preponderance of the evidence financial or pecuniary loss sustained by a distributee or by distributees of such deceased person “in an amount exceeding the sum of ten thousand dollars.” (Italics supplied). It is clear beyond all question from the statutory language that the right to recover an additional sum does not accrue except upon proof of a financial or peuniary loss “in an amount exceeding the sum of ten thousand dollars.” If a plaintiff proves by a preponderance of the evidence that he is entitled to recover a sum in excess of the basic sum of $10,000, to what amount is the recovery restricted by the statutory language? The statute in clear and unmistakable language states that the sum recoverable in such a situation shall be restricted to “such damages as shall equal such financial or pecuniary loss, not exceeding twenty thousand dollars as the total of all damages recoverable in such action, … (Italics supplied) . It is clear beyond question from such statutory language that in no situation can the recovery in excess of $10,000 be in a sum greater than the total amount of the financial or pecuniary loss proved.
¶7In an opinion handed down by this Court simultaneously with the majority opinion in this case, the Court stated: “When a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the court, and in such case it is the duty of the court not to construe but to apply the statute.” J. D. Moore, Inc. v. C. Howard Hardesty, Jr., State Tax Commissioner, pt. 1 syl., (decided February 26, 1963). The principles stated in that syllabus point have been reiterated by this Court in cases almost without number. Similar rules of construction have been applied in cases involving written contracts of various sorts and cases involving constitutional provisions. Cotiga Development Co. v. United Fuel Gas Co., 147 W. Va. 484, 128 S. E. 2d 626; In re Hillcrest Memorial Gardens, Inc., 146 W Va. 337, 119 S. E. 2d 753, 759.
¶8*606While I feel that the statutory language in question is clear and unambiguous and that therefore we are not permitted to construe it but must apply it in accordance with its plain terms, it is interesting to note that the legislature in 1961 apparently regarded the language of the statute as I do. In amending the statute now under consideration by Chapter 2, Acts of the Legislature, Regular Session, 1961, the legislature, after reenacting the provision pertaining to the basic sum of $10,000, provided that a jury “may give such further damages as shall equal such financial or pecuniary loss … (Italics supplied). The word “further” is new by virtue of the 1961 amendment and apparently was designed to accomplish by statutory enactment a portion of that which the majority has accomplished, as I believe, by unwarranted judicial construction. The 1961 amendment also provides: “In every case in which the jury shall give damages for financial or pecuniary loss in such action, the jury shall state in their verdict the part thereof given for such financial or pecuniary loss.” This portion of the amendment obviates' a difficulty I perceive in relation to the majority opinion in this case which involves the statute as it existed prior to the 1961 amendment.
¶9I find no language in the opinion in Stamper v. Bannister, 146 W. Va. 100, 118 S. E. 2d 313, at variance with the views I have expressed herein; otherwise I would have dissented at that time, because I then held and expressed the same views as I now entertain and have undertaken herein to express. The fourth point of the syllabus of that case merely states that if the distributee or distributees will suffer or have sustained a financial or pecuniary loss “evidence of such elements of damage is admissible in such actions.” The latter part of the opinion contains the following language: “… and if proved by a preponderance of the evidence, the jury could give such damages for such pecuniary loss not exceeding the total of twenty thousand dollars for all damages recoverable in such actions.”
¶10For reasons stated, I believe that it appears unmistakably from clear and unambiguous language of the statute that under no circumstances is a jury warranted in returning a *607verdict for a Siam in excess of $10,000 unless “the plaintiff in such action shall prove by a preponderance of the evidence financial or pecuniary loss sustained by a distributee or distributees of such deceased person in an amount exceeding the sum of ten thousand dollars;” and even in such a situation the maximum verdict may be only “such damages as shall equal such financial or pecuniary loss.” Apparently this is the construction which, at the trial, was placed on the statute by the court and by counsel for the plaintiff. Plaintiff’s Instruction No. 6A, with emphasis supplied, concludes as follows: “… not to exceed the amount of $10,000.00, unless you believe from a preponderance of the evidence that the plaintiff [the husband and sole distrib-utee] has suffered a pecuniary loss in excess of $10,000.00, then you may award the plaintiff the amount so proved not to exceed the amount sued for $20,000.00.” The twenty-third point of the syllabus would authorize a verdict in excess of $10,000, if plaintiff proved financial or pecuniary loss in any amount whatsoever.
¶11When the language of a statute is clear and unambiguous, we are not at liberty to indulge in speculation as to what the legislature may have meant to express but did not express. The majority opinion, in a process of reasoning which I am unable to follow, seems to proceed from the basic premise that, prior to the 1955 amendment, a jury was warranted in awarding a verdict for $10,000 in the absence of proof of any financial or pecuniary loss to a distributee. Beyond question that was true; but the statute did not guarantee such sum or any other sum to a plaintiff. The discretion of the jury as to the amount of the award was almost absolute and uncontrollable, regardless of damages, pecuniary or otherwise, the plaintiff might prove. Legg, Adm’r v. Jones, 126 W. Va. 757, 30 S. E. 2d 76. Proceeding from its major premise, and in an effort, as I view it, to discern the legislative intent apart from the plain language itself, the majority opinion states: “If it was now held that it is necessary to prove pecuniary loss in order to recover any damages in the part pertaining to the $10,000.00 limit of recovery, it would decrease the right of recovery heretofore *608allowed under the exact wording of this part of the statute and would be contrary to the prior decisions of this Court.”
¶12As stated earlier herein, the concluding portion of plaintiff’s Instruction No. 6A authorized the jury to determine whether plaintiff had proved pecuniary loss in excess of $10,000 and to award a verdict equal to the total of such pecuniary loss, not exceeding $20,000. Counsel for Blankenship, defendant, objected to the instruction on the ground that there was no proper proof of financial or pecuniary loss sustained by the husband as distributee. The court refused an instruction offered in behalf of Blankenship which would have told the jury that “they cannot return a verdict in excess of the sum of $10,000.” From statements made by the trial judge and by counsel for the plaintiff at the time instruction 6A was offered, the only evidence tending to show financial or pecuniary loss was testimony that the decedent was employed at the time of her death and that she and her husband placed their earnings in a common bank account. In support of that portion of the instruction, counsel for plaintiff states in his brief: “… the plaintiff testified that he and the deceased were putting their money in an account so as to pay for their trailer and other debts.” It was stipulated by counsel that all parts of the record designated as not to be printed may remain in the office of the clerk of this Court while this case is pending where the same may be referred to by counsel in argument “and by the Court in deciding this case, if it so desires.” By the same stipulation, counsel stated that they “designate that the complete record in this case be sent to the Supreme Court of Appeals … In these circumstances, the majority opinion states in relation to such alleged proof of financial or pecuniary loss: “… but such evidence, which was apparently given by the plaintiff, was omitted from the printed record by stipulation.”
¶13The testimony discloses that the decedent, immediately prior to her death, was earning $46.06 per week. The husband testified that he and his wife pooled their earnings in pursuance of their plan to buy a trailer. It does not appear that the husband was to become the owner of the contem*609plated trailer. It does not appear that the two persons placed their funds in a joint bank account with rights of survivorship. Counsel for Blankenship pointed out in the trial court and in this Court that Code, 1931, 48-3-1, provides that all property and income owned or acquired by a married woman “shall be and remain her property in all respects as if she were a single woman, and the same shall in no way be subject to the control or disposal of her husband, nor liable for his debts.”
¶14In these circumstances, I believe that there was no proper evidence to authorize the jury to determine whether the plaintiff suffered pecuniary or financial loss in excess of $10,000 or in any other sum, and such evidence should not have gone to the jury on the question of damages. Since the proof discloses that the plaintiff husband had remarried prior to the time of the trial, it is reasonable to assume that a considerable portion of the $10,000 verdict represented that which the jury believed to be a financial or pecuniary loss to the husband.
¶15It is error to give an instruction which is not supported by the evidence. State v. Morris, 142 W. Va. 303, pt. 7 syl., 95 S. E. 2d 401. There was no reasonable basis for a finding that the recently married housewife would have continued indefinitely to be gainfully employed and no reasonable basis for finding that the plaintiff would have become the owner, during her lifetime, of such earnings. A jury will not be permitted to base its findings or the amount of its verdict on conjecture or speculation. Payne v. Ace House Movers, Inc., 145 W. Va. 86, 91, 112 S. E. 2d 449, 451; State ex rel. Shatzer v. Freeport Coal Co., 144 W. Va. 178, pts. 4 and 5 syl., 107 S. E. 2d 503; Ritz v. Kingdon, 139 W. Va. 189, pts. 20 and 21 syl., 79 S. E. 2d 123; Oates v. Continental Insurance Co., 137 W. Va. 501, pt. 1 syl., 72 S. E. 2d 886; LaBris v. Western National Insurance Company, 133 W. Va. 731, pt. 1 syl., 59 S. E. 2d 236. The giving of an erroneous instruction is presumed to be prejudicial and warrants a new trial unless it clearly appears that the complaining party was not prejudiced thereby. Preston County Coke Co. v. Preston County Light & Power Co., 146 W. Va. 231, pt. 14 syl., 119 S. E. 2d 420.
¶16*610For reasons stated I would reverse the judgment, set aside the verdict and award a new trial. It may be that the views expressed herein as to financial or pecuniary loss will soon be rendered purely academic, except as they relate to this case, by reason of a proposal now pending in the legislature to eliminate from the statute all the provisions relating to financial or pecuniary loss.
¶17Incidentally, I am troubled by one thing which appears in this case and which I have observed in one or more instances heretofore in cases coming from circuit courts to this Court. The record indicates that this trial commenced on August 29, 1960, and that the jury returned its verdict on September 2, 1960. It does not appear from the record that any order was entered on the date the trial commenced to show such court action as the selection and swearing of the jury and the commencement of the trial. From the printed record at least it does not appear that any court order was entered on any of the days during which the trial was in progress. About eleven months later, on July 28, 1961, thex-e was entered a single composite order setting forth the trial proceedings on a day-to-day basis, including joinder of issue, selection and swearing of the jury, the taking of testimony, the making of certain motions, arguments of counsel, the verdict of the jury, the discharge of the jury, a motion to set aside the verdict, the overruling of the motion to set aside the verdict, the entry of judgment, and the stay of execution in order to permit appeal. I believe the law contemplates a contemporaneous, daily recordation of court proceedings. It is fundamental that a court of record speaks only by its record and that, legally speaking, that which does not appear from the record did not occur. A court reporter’s shorthand notes do not constitute a court’s record, nor does a transcript thereof. Until it can be made clear to what extent, if any, the Rules of Civil Procedure have changed Code, 1931, 51-3-4, as amended, I would certainly want a contemporaneous, daily court record of any circuit court proceedings in which I might be vitally interested.