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Milleh, Judge:
The controlling facts in this case are substantially the same as those involved in Tahaney v. Building Association, 59 W. Va. 296, and the principles there enunciated and applied rule this case, contrary to the contentions of appellant. The questions of pleading and practice presented and argued seem to be fully covered and decided adversely to appellant, in Martin v. Smith, 25 W. Va. 579, Darby v. Gilligan, 43 W. Va. 755, Dorr v. Dewing, 36 W. Va. 466, and Toledo Tie & Lumber Co. v. Thomas, 33 W. Va. 566. It is unnecessary, therefore, to reiterate the legal rules and principles so well established. We find no error in any of the decrees and proceedings below prejudicial to the rights and interests of appellant, and the decree appealed from will therefore be affirmed.
Affirmed. | [
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BRANNON, PRESIDENT :
Sam Honaker brought an action against New River & Pocahontas ■ Consolidated Coal Co., for personal injury and recovered one thousand dollars damages. Honaker was a boy twelve years and ten months old at the time he received his injury. The defendant was operating a coal mine and Honaker was employed by it in ‘'“’trapping” and “pig tailing.” His work in trapping was to open doors in the mine to let pass the motor engine hauling in and out of the mine coal cars. His duty in pig tailing was to connect rope, from winder on the motor, with ■coal cars to be hauled out of the mine. A motor was pushing into the mine four empty coal cars. Honaker was seated on the end of the fourth car from the motor with his feet on the bumper. There were some empty cars ahead on the track in the- mine and the cars, being pushed, collided with them. Honaker discovered them some seven feet ahead and tried to get back into the car, and in doing so one of his feet slipped and was caught between the bumpers of the ears and was mashed. The plaintiff gave evidence that on the day of his injury the brakemen was absent, and he was ordered by the mine foreman to act as brakeman.
Complaint is made that the court refused an instruction, saying that if Honaker had been instructed by the mine foreman not to ride on the mine cars, and that he disobeyed the instructions, and did ride in the mine on the front car of a number that were being pushed into the mine, contrary to instructions, and that the injury was occasioned thereby, the jury should find for the defendant. This instruction ignores the fact that TIonaker was under fourteen years of age. It does not put to ¡he jury to say whether that fact entered into the case. The instruction proposes to defeat the plaintiff on the ground of contributory negligence without talcing into consideration the age of Honaker. My own view, as expressed in my opinion in Norman v. Coal Co., 68 W. Va. 414, is that the employment in coal mining of a child under fourteen years of age is of itself contrary to law, and per se negligence, and that contributory negligence is not attributable to him. We do not so decide in this case. Under that decision we do say that the evidence does not show that this boy does not belong to the class of infants under fourteen, by reason of special mental attainment and capacity, so as to take him out of that class and put him in the adult class, and that, therefore, his employment is a violation of the statute against employing minors, found in Supplement Code of 1909, ch. 15T-T, sec. 17. Unless by evidence shown to possess special capacity to avoid danger the statute applies, and we cannot attribute to-him full capacity, regardless of age, as this instruction proposes to do. But, furthermore, we say that instruction 3, 4 and 6, given for the defense, substantially cover the ground of the instructions refused and were sufficiently favorable to the defendant. It is said that Honaker was told not to ride on the car, and especially it is said that he .had no right to sit on the front car with his feet hanging down. Evidence before the jury says that he was ordered to act as brakeman that day, and he did not go out of the line of his duty as trapper to act as brakeman, and there was evidence that it was needful for him to sit where he did to watch switches. There was no evidence that he was instructed how to act as brakeman or of its dangers, and upon that ground it can be said that the verdict is defensible. The ground of liability, as I myself would base it, is that Honaker was a child, exposed to danger by employment in violation of a statute; but all of ns unite in saying that being employed in violation of statute is prima facie negligence, and it not being proven that special intelligence and capacity in Honaker took him out of the class of infants under fourteen years, contributory negligence cannot be charged to him. This is a jury question. Moreover, it is proven that he was put to work, not of his own act, in leaving his usual line of duty, and had no experience or instruction as brakeman.
The plaintiff claims that the defendant was negligent in pushing its cars into the dark mine without a light on the motor to show ahead, and that if there had been a light there, it would have shown the presence of the empty cars ahead at such distance as would have enabled the boy to get into the car and save himself. The only light was a small mine lamp in the cap of the boy, which did not light but a few feet ahead; but probably the company would not be chargeable with this negligence, because it was an omission of duty by the mine boss, under principles stated in Squilache v. Tidewater Coal Co., 64 W. Va. 337, and other like cases. AVe think the Norman Case above, even without the latter consideration, calls for recovery.
Therefore, we affirm the judgment.
Affirmed. | [
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Miller, Judge;
In a suit to reform a deed so as to conform to the alleged prior contract, the bill alleges that the deed as recorded, instead of reserving to plaintiff, according to said contract, “all the oil and gas underlying and contained in the said land, together with all the rights and privileges thereto belonging, and for the removal, mining, boring, excavating and developing the same; except * * * * * one-eighth of the rentals accruing to the plaintiff from and during the life of a certain lease theretofore'given by the plaintiff, then and still in force,” and of which rentals during the life of said lease the bill alleges “defendant was to have one-eighth part, * * * and * * * should oil be obtained during the life of said lease, then * * * to have the one-eighth of plaintiff’s one-eighth royalty from all oil produced, and the one-eighth part of the plaintiff’s rentals from the gas produced,” it “purports to reserve * * * * said oil and gas and the rights and privileges thereto, only fduring the life of the lease on the said lands’ * * * * with the single and only exception that, •during” that time “defendant was to have certain parts of the rentals from said lease and, in the event oil or gas should be produced, during the term” thereof, “defendant was to have a portion of the money, or royalty accruing to this plaintiff, to-wit, the one-eighth part.” A further allegation is that this was the mistake of the scrivener who prepared the deed, as defendant well knew. The charge of the bill is that the deed as recorded is not the deed plaintiff agreed to make, and that defendant refuses to permit him to inspect the original deed, or to reform and correct it, so as to express the true terms and conditions of the contract. The prayer is that said deed he corrected and reformed, and made in accordance with the contract and agreement.
The answer of defendant substantially denies the material allegations of the .bill and puts the plaintiff on proof of the case as alleged. The decree appealed from denied plaintiff any relief and dismissed his bill.
Omitting immaterial parts, the exact language of the reservation in the deed as recorded is as follows: “There is hereby reserved, retained and excepted from the above conveyance during ihe life of the lease now on said lands all the oil and gas underlying the same together with the right to enter in” and upon said lands for the purpose of mining, exploring and boring * * * * *, but second party is to have and enjoy a one sixty fourth, part of all oil that may be produced and saved from said lands to be delivered to his credit to any pipe lines to which any well developed and producing oil may be connected and likewise second party shall be paid by first party his heirs or assigns a one sixty fourth part of all rentals that may be derived from airy gas derived from any well that may be-drilled on said lands the-produet of which is marketed off of sneli lands, and said lands are sold subject to the oil and gas lease now on said lands, but second party is to have a one eighth part of the commutation money to be derived thereunder until developments and then a one sixty fourth part of all the rents, issues, profits and royalties to be derived thereunder as above provided.”
The proof does not sustain the case made by the bill. According to the original contract, as alleged, the rights of the grantee in the royalty oil and rentals were to be limited to the life of the oil and gas lease then on the land.. The proof fails on this theory of the bill. The plaintiff in his testimony in chief swears that defendant was to have one-eiglith “interest in the rental and one sixty-fourth part of the whole of the oil and gas.” True, in response to a subsequent question as to how long the rights of the grantee were to continue, he does say: “That was to be determined by lease already on the land, which ran ten year from the time it was given.” But on cross-exami nation he was asked: “Would you please state what words in the deed as now recorded are different from the one which you delivered to Mr. Riley?” He answered: “These words ‘during the life of the present lease’ ”; referring to the words italicized in the reservation above quoted. By this we understand him to admit that with this exception the deed as recorded contains the contract made, and as was intended when the deed was delivered. If so, defendant’s one sixty-fourth interest in the royalty oils and rentals was not to be limited to the life of the lease then on the land. And this accords with defendant’s admission on the witness stand, that when he and plaintiff originally talked terms of the contract, plaintiff said he would like to reserve sixty-three sixty-fourths of the oil and gas for himself. Defendant’s contention, however, is that before the deed was made he imposed different terms, that by a letter to plaintiff before deed made he agreed to take the land only on the condition that the reservation be limited to the life of said lease, a fact, we think, not supported by the evidence. The only letter shown in evidence to have been received by plaintiff from him imposes no such condition. Furthermore, Martin, the scrivener employed by plaintiff to prepare the deed swears, that to the best of his knowledge the words italicized in the reservation quoted, were not in the deed when' it left his office; that he always used a regular form in drawing such deeds, and that 'he would not have used the words italicized, and thereby rendered the reservation inconsistent with itself, if it had been intended to limit that reservation to the life of the lease then on the land; that if that had been the object a much simpler form would have been appropriate and would have been employed by him. As we view the case the interpolation of these words constitute the strongest fact or circumstance tending to show that the deed must have been tampered with, certainly after it was originally drafted and had left the scrivener’s hands, and after it was executed and delivered to defendant. The original deed, though called for, was not produced in evidence by defendant. This neglect he excuses on the pretense that it had been delivered to his attorney on some occasion and could not be found. The original deed would no doubt have shed light on the controverted point. Its absence, a very suspicious circum stance, we do not think is sufficiently accounted for. The attorney for defendant, and the attorney in whose hands the deed was when it is said to have been lost or mislaid, on his cross-examination of plaintiff implied by some of his questions that he had some knowledge of an interlineation in the deed before it was executed and delivered, and was apparently laying the foundation to contradict the witness. However,'though himself a witness, he made no attempt to prove by himself or any other witnesses, that any such interlineation had been made. The testimony of defendant amounts to a concession that by the original agreement plaintiff was to reserve sixty-three sixty-fourths of all the oil and gas. But for the words in italics this is just what the reservation in the deed would accomplish-Defendant’s pretension that by letter to plaintiff he imposed other terms, limiting those rights to the life of the existing lease, is flatly contradicted by plaintiff; and his failure to produce any such letter or copies thereof, and the production by plaintiff of the only letter he ever received from defendant on the subject, dated March 10, 1908, the day before the deed was made and executed, acknowledging receipt of a letter from plaintiff of March 9th, and in which letter not one word is said about any modification of the terms of the reservation, strongly corroborates plaintiff's testimony that no such terms were ever imposed or agreed to.
But the fact, established, we think, by the proof, that the deed was tampered with after it was executed and delivered to -defendant, by the insertion in the reservation by some one of the words italicized, in fraud of the rights of plaintiff, is not the case made by the pleadings. We are of opinion, however, that the proof in the case shows plaintiff entitled to relief, and that on proper pleadings such Telief as indicated should be granted.
That a court of equity may reform a deed or contract where by fraud, accident or mistake of the scrivener, or by any other means, the same does not conform to the actual agreement between the parties, is well established. Knowlton v. Campbell, 48 W. Va. 294, 296; Null v. Elliott, 52 W. Va. 229, 231. But plaintiff can no more prevail on proof without allegation than on allegation without proof. Pusey v. Gardner, 21 W. Va. 476.
If possible, justice should be done. But in this condition of the pleadings and proofs what disposition should we make of the case ? Following Lamb v. Cecil, 25 W. Va. 288, and subsequent eases, we should reverse the decree and remand the cause, and do what we think the lower court should always do before dismissing a bill in this situation, give leave to plaintiff to amend his bill so as to present the case made by the proof. See Lamb v. Laughlin, 25 W. Va. 300; Doonan v. Glynn, 26 W. Va. 225; Gilchrist v. Oil Co., 21 W. Va. 115; Van Winkle v. Blackford, 33 W. Va. 573; Bigg v. Parsons, 29 W. Va. 522;. Ryan v. Nuce, 67 W. Va. 485, 490, and Hardman v. Brannon, 70 W. Va. 726, 735.
For this error we are of opinion to reverse the decree and remand the cause for further proceedings.
Reversed and Remanded. | [
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Milled, Judge:
The petition of plaintiff, a subsequent attaching creditor of Watson in the circuit court, filed before a justice, pursuant to sections 151 and 152, chapter 50, Code 1906, against Loeb Shoe Company, a prior attaching crédito]', of the same debtor, in an action begun before another justice, was dismissed, and on appeal to the intermediate court it was dismissed there, and the circuit court having denied an appeal from that judgment, the petitioner has brought the case here for review.
The first question is, is the matter in controversy, exclusive of costs, sufficient to give this Cort appellate jurisdiction? According to plaintiff’s original and amended petitions the amount for which defendant attached on August 19, 1901, was sixty dollars and twenty cents, with interests and costs.' Defendant insists that the jurisdiction must be tested by the original amount in controversy in his suit, exclusive of costs, and that it does not affirmatively appear from the record, as he insists it must to give appellate jurisdiction, that the principal and interest exceeds the sum or value of one hundred dollars. This was not' a suit to recover a specific sum of money, and the general rule in such cases is, that it is not necessary that the record should show the amount in controversy. That may be shown by affidavit or other evidence presented here. Hannah v. Bank, 53 W. Va. 82. This was properly done, by a certified copy of the final judgment in favor of the defendant in the intermediate court, with taxation of costs, exhibited with plaintiff’s petition. This shows judgment $60.20; interest to date of the judgment July 11, 1910, $31.75; costs before the justice, $14.70, total $106.65; to which, if we add, the costs incurred in the intermediate court on appeal, $27.40, the total would be $134.05. If as insisted the costs incurred on appeal by the garnishee can not be included, there still remains the original judgment, interest and costs incurred before the justice amounting to $106.65.
AVhat then is the real amount in controversy? If the Loeb Shoe Company succeeds in maintaining its attachment, as against petitioner, the fund in bank attached will he depleted by at least the sum of $106.65, and the petitioner deprived of that amount as a credit on its judgment. So we must say that the actual amount in controversy is that sum which the petitioner will lose if defendant prevails. If this were a writ of error to the judgment in the ease of Loeb Shoe Company against Watson, the contention of counsel 'would have force, but it is not. Though collateral it is to all intent and purposes an independent proceeding, and we think falls within the rule of Taney v. Woodmansee, 23 W. Va. 709, 713. In Castle v. Castle, 69 W. Va. 400, we decided that an appeal would lie to this Court to correct a decree for costs, when such costs had been the subject of a special agreement between the parties.
The next question is, is the petitioner a claimant, with right to' contest the validity of the attachment of the Loeb Shoe Company?' 11 is insisted that no one but the owner or one with title, and right’ of possesson of the property attached, can do this. This argument is based mainly on said section 151, saying, that upon the filing of the petition and giving the bond, the order of the justice-shall direct the officer “having such execution, order of sale, or attachment * ■ * * to deliver up the property to said claimant,”' and that this could not mean another attaching creditor. Opposed to this narrow construction it is insisted for the petitioner, first, that the language of section 151, specifying what the petition shall contain, indicates the intention of the legislature that anyone, who has “such a claim to or interest in the property levied on, or about to be sold, as entitles him to have the same released from such levy, or to prevent the sale thereof (as the case may be) ” may file such petition, and that this language is comprehensive enough to include a subsequent attaching creditor, with superior right. Another argument is based on analogy to section S3, chapter 106, Code 1906, relating to proceeding upon attachment in the circuit court. That section provides tfiat “Any person interested may file his petition at any time before the property attached, as the estate of a defendant, is sold under the decree or judgment, or if the proceeds of the sale have not been paid over to the plaintiff, or his assigns, within one year after such sale, disputing the validity of the plaintiff’s attachment thereon, or stating a claim thereto, or an interest in or lien on the same, under any other attachment or otherwise, and its nature, and upon giving security for costs, the court without any other pleading, shall impanel a jury to inquire into such claim, and if it be found that the petitioner has title to, or lien on, or any interest in such property or its proceeds, the court shall make such order as is necessary to protect his rights; the costs of which inquiry shall be paid by either party, at the discretion of the court.” A third point made is based on McCluny & Co. v. Jackson, 6 Grat. 96, a decision is binding us. That case holds, point 3 of the syllabus, that, “A subsequent attaching creditor may appear to the first attachment, and either in his own name or in the name of the absconding debtor, contest the right of the first attaching creditor to recover.” The decision of that casq turned on the proper construction of section 12, 1 Rev. Code, 478, providing that “in all cases of attachments, the defendant shall be permitted to make defence, and any other person claiming the property attached, may inter-plead, without giving bail: Provided, that the property attached .shall not thereby be replevied.” “This defence,” says the judge •delivering the opinion in that case, “may be made without a personal appearance; and I can perceive no good reason why a third person claiming a right to have his debt satisfied out of the attached property, should not be permitted to make it, either in the name of the debtor or in his own name. He cannot interplead as .a claimant of the property in his own right, because he is seeking to subject it to the payment of his debt as the property of the •debtor. Generally speaking, the subsequent attaching creditor is the only person having an interest to controvert the justness of the claim preferred by the first. The debtor is a fugitive, and unless the subsequent creditor is permitted to make defence, a claim which he could shew to be unjust, might consume the whole estate, and the real creditor would be without remedy. Such a construction might lead to gross injustice, and would violate the •spirit of the act which authorizes the defendant to make defence without giving bail. The reasons and necessity for extending the privilege to third persons seeking fqr payment of their debts out of the attached property, are stronger than for permitting third persons to replevy. The plaintiff in the first attachment, cannot object that this defence is made in the name of a creditor who will be liable for costs, rather than in the name of a fugitive, 'and generally an insolvent debtor.”
The language of said section 151, relating to the delivery of the property to the claimant, constitutes no obstacle to the practical application of section 152 to the case at bar. By proceeding under that section, without bond, the justice is not authorized to turn over the property attached to the claimant; under that section the justice makes no order as to the possession of the property until after the trial of the issue; then he may either “dismiss the claim or order the officer to deliver the property to the claimant, as the right shall appear.” And where, as in this case, the property or money is attached in the hands of a garnishee, under section 197, of chapter 50, Code, unless under section 198 the garnishee voluntarily surrenders the property attached to the officer, it remains with him until after the trial of the issue; and if plaintiff obtains judgment, then by proceeding according to sections 205, 200 and 207, he may have judgment against the garnishee for the property or money attached in his hands sufficient to satisfy his judgment as thereby prescribed. We see nothing in the language of section 151 calling for such a narrow construction as counsel would give it. Section 23, chapter 106, gives clear right to plaintiff in the circuit court to intervene and contest the validity of a prior attachment in the circuit court. No stronger reason can be assigned for limiting claimant of the property, under sections 151 and 153, to owner or title claimant, than for so limiting substantially the same language of the Virginia statute involved in M’Cluny v. Jackson supra, and the answer to the proposition made by the court in that case is applicable here. Indeed the language of our statute, considered in the light of the other sections referred to, presents a stronger case for its application than was presented in that case. We hold, therefore, that under said sections 151 and 152 a subsequent attaching creditor may contest the validity of a prior attachment, as claimant, or as one having right to have the property attached released from the prior attachment.
Being so authorized to intervene, and being properly in this Court, on a writ of error, we reach the next point, namely, is the summons of the justice, issued August 19, 1901, and made returnable August 24, 1901, at 9 o’clock A. M., in the Loeb Shoe Company Case absolutely void by section 26, of said chapter 50, requiring that such summons “be made returnable not less than ñve nor more than thirty days from its date ?” It is insisted that under this statute the earliest day to which this writ could have been made returnable was August 25; that the statute gives the defendant summoned five full days from- the date of the summons to appear, which in this case did not end until midnight of the twenty-fourth, wherefore the summons was absolutely void, and without appearance, gave the justice absolutely no jurisdiction whatsoever. Is this a correct interpretation of the statute? We think not. True the statute says “not less than five * * * days from its dated’ But five days from August 19, would be August 24. We think that the rule for computing time by excluding the first and including the last day, prescribed by section 12, chapter 13, Code 1906, and the general rule that the law recognizes no fractions in computing time, is applicable. This conclusion is fully supported by decisions from other states construing similar statutes, and by the obiter, at least, of Horner v. Huffman, 52 W. Va. 41, 45-6, 43 S. E. 132; Smith v. Force, 31 Minn. 119, 16 N. W. 704; Young v. Krueger, 92 Wis. 361, 66 N. W. 355; Womack v. McAhren, 9 Ind. 6; Martin v. Reed, Id. 180; Blair v. Davis, Id. 236; Blair v. Manson, Id. 357; Warner v. Bucher, 24 Kan. 478; Schultz v. American Clock Co., 39 Id. 334, 18 Pac. 221; Savings & Loan Society v. Thompson, 32 Cal. 347. True the question is not made a point of the syllabus in our case, but the point was involved, though not necessary, as therein stated, to a decision of the cases. The decisions cited for plaintiff, per contra, unless it be Adkins v. Moore, (S. C.) 20 S. E. 985, seem to us inapplicable. If that case is so interpreted we decline to follow it; it is opposed to the weight of authority and to our interpretation of our own particular statute:
The next point made against the validity of the summons is, that the manner of its direction and of its service, render it void on its face. It is directed as follows: “G. T. Grass. To H. C. Smith, or any Constable of said County.” Section 30, of chapter 50, Code 1906, in force at the time, and relied on, provides: “When it shall satisfactorily appear to a justice issuing a summons, attachment or warrant of arrest in a civil action, or a warrant in a criminal proceeding, that a necessity exists therefor, ho may appoint a special constable to execute the same, either by directing such process to such special constable by name as follows: ‘To A.B., who is hereby appointed a special constable to execute this process’, or bjr endorsing such appointment on said process.” No endorsement of the appointment is found on the process. But we see from the name of Grass written in the summons that there was an attempt to comply with the statute. The return on the process is signed “G. T. Grass, Special Constable, Kanawha County.” This return was accepted, and no doubt made the basis for the issuance of the second summons, pursuant to said section 202. Though directed in the manner stated wé can not hold the process void. Section 17, chapter 50, Code, says: “It may be directed to the constable by name or by his official designation without naming him.” It could have been executed by any constable, and the service would have been good; and it might even have been executed by any credible person, and service proven by his affidavit. The question is one relating to the proper execution of the power of appointment of the special officer, rather than to the validity of the writ. The writ is good, clearly. The writ with the return and acceptance of the return, clearly evidences an appointment. The writ and return we think sufficient to confer jurisdiction. Town of Point Pleasant v. Greenlee, 63 W. Va. 207; Alderson on Jud. Writs and Process. §§ 98 and 198. In section 98, at page 170, this writer says: “A writ may be directed to a person as ‘special constable,’ and the written appointment need not show the statutory facts on which the appointment was made; as that the justice was requested to make the appointment, or he was satisfied it was expedient to do so.” See Cowdery v. Johnson, (Vt.) 15 Atl. 188. Our statute, section 30, chapter 50, authorizes such appointment, where it appears to the justice “that a necessity exists therefor.” We hold that the irregularity of appointment does not vitiate the writ or return. The fact of appointment sufficiently appears, and we hold that the irregularity does not vitiate the writ. Our case does not fall within the strict rule of the Illinois cases of Illinois Land & Loan Co. v. McCormick, 61 Ill. 322; Filkins v. O’Sullivan, 79 Ill. 524; Noleman v. Weil, 72 Ill. 502, and Davis v. Hamilton, 53 Ill. App. 94.
The next question is, is the Loeb Shoe Company’s affidavit so defective as to render its attachment absolutely void, or merely Voidable? If void it may be collaterally attacked, and will com stitute no protection, even to the Charleston National Bank, garnishee. The defect pointed out, which it is claimed renders the attachment based thereon void, is that it fails to show the nature of plaintiff’s claim as required by section 193, chapter 50, Code 1906. The affidavit says: “That the claim of the said plaintiff against the defendant is for check not paid, protest fees and To Mdse, that the said claim is just, and this affiant believes that plaintiff ought to recover thereon Sixty 20-100 Dollars, with interest on the same from the.day of.189.” Is this sufficient? It is argued that it shows no right of recovery from anybody, and none from defendant Watson; that it does not show whose check it was, or to whom given, or the date or amount thereof; nor does the affidavit show what the rest of the claim is, nor by what right plaintiff claims to recover on account of either check or other claim, as against defendant Watson ; in other words, that no cause of action whatsoever is stated, against either Watson or any one else, and that this indefiniteness ought to quash the affidavit upon the principle laid down in Sommers v. Allen, 44 W. Va. 120, 28 S. E. 787. The affidavit held Rad in that case, and quashing the attachment for indefinite description of plaintiff’s claim, stated that the suit was to recover three hundred and ninety-six dollars “which sum will be due and payable on said 1st day of February, 1896, which sum the plaintiffs claim will be due on that day on a negotiable note signed by J. II. Allen and Kate M. Allen.” It was there held, point 2 of the syllabus, that, “An affidavit for an attachment not stating the nature of the plaintiff’s demand, so as to show a title or right in the plaintiff to such demand, is bad, and should be quashed on motion.” Certainly the case here falls within that rule. The rule of that case, and cases cited, which originated in the circuit court, was applied in an attachment proceeding originating like this one in a justice’s court, in Kesler v. Lapham, 46 W. Va. 293, 297-8. Other cases in this Court giving some color to defendant’s contention are Todd & Smith v. Gates, 20 W. Va. 464, and Lively v. Loan Ass’n., 46 W. Va. 180. But the cases cited for our conclusion, particularly Sommers v. Allen, are apt and on all fours with this case. The other cases must be differentiated and reconciled with these because of the difference in ttie character of the claims sued on, and the necessity in cases like this and the Sommers Case, for reasons stated in the latter, for more definiteness in the statement of the nature of the claims, than in those cases relied on by defendant- 'We think the nature of the claim ought to be so stated, not necessarily with formality, but with sufficient definiteness to show that the plaintiff has a cause of action against defendant. The nature of an attachment proceeding would seem to require this. We can not ignore all essentials even in a justice’s court. Chapter 50 of the Code, while not requiring formality, clearly calls for the substance. A reading of the sections relating to pleadings clearly evince this, and if in pleadings, certainly in the harsher remedy of attachment substance is demanded in the affidavit. Judge Holt in Crim v. Harmon, 38 W. Va. 596, gives some strong reasons for such a rule.
Now, may the validity of that attachment be assailed collaterally, as attempted in this case, or by a proceeding under sections 151 and 152 of chapter 50, Code? We hold that a subsequent attaching creditor may do so; that any creditor with title to or lien upon the property attached may do so. Miller v. White, 46 W. Va. 67; U. S. Baking Co. v. Bachman, 38 W. Va. 84, 3rd syl.; Pendleton v. Smith, 1 W. Va. 16. Independently of the statute where the attachment proceeding is purely ex parte, as in this case, the defendant not being personally served with process and not appearing to the action, the attachment may be collaterally impeached for jurisdictional defects in the affidavit, and unless the affidavit be lawfully sufficient to support the jurisdiction to pronounce judgment thereon it is void. Failure to state the nature of plaintiff’s claim, as required, is not, as we hold, a mere irregularity; it goes to the very life of the writ, rendering it void and quashable. Drake on Attachment (6th ed.), § 87a to § 89b, both inclusive. See on the subject of stating the nature of plaintiff’s claim, and supporting our cases cited, Van Fleet on Collateral Attack, § 263.
But the petitioner, a subsequent attaching creditor, claiming right to attack the prior attachment of defendant, must of course himself show a valid attachment. Without this he can have no standing in court. 4 Cyc. 646. A prima facie case is made, according to the authorities, by showing valid process and war rant of attachment and a sufficient affidavit. 4 Cye. 646, and cases cited in notes. This rule seems to be contemplated by onr statutes, especially section 23, chapter 106, Code 1906. Has petitioner alleged and proven a ease entitling it to attack defendant’s attachment? If not it should be denied any relief. Defendant insists it has not done so; that its affidavit is defective in the same particular in which his affidavit has been held bad, failure to state a good cause of action against Watson. The affidavit states the nature of petitioner’s claim to be: “That the said Watson on or about the 10th day of August, 1901, delivered to the said Bank a certain check order or draft for the sum of Fifteen Hundred pounds sterling of the Current money of the Kingdom of Great Britain; that said check, order or draft was at the request of said Watson forwarded for Collection through said Bank’s correspondent in the City of ISFe-w York, State of Hew York; that said Bank of Union was informed by its said correspondent that the proceeds of said check order or draft amounted to the sum of Seven Thousand Two Hundred and Seventy Eight and 75-100 Dollars which had been placed to the credit of the said Bank of Union; that thereupon said Watson gave sundry checks or orders on said Bank, many of which the said Bank paid on the faith of said information so received from its said correspondent in New York; but the said check order or draft so forwarded for collection as aforesaid was not paid when it was duly presented for payment, and the balance now due the said Bank of Union from said Watson by reason of said transaction amounts at least’ to the sum of Six Thousand Dollars.” The contention of defendant is that as the affidavit admits that petitioner received credit in the New York bank, for the full proceeds of the draft, this was the equivalent of payment to it of the draft, and that as there is no allegation or evidence of protest, it must be. assumed there was none, so as to bind petitioner, or-authorize the New York bank to charge back the draft or render it liable for the proceeds there-: of. It is quite true that to render the indorser of a note or bill liable it must be duly protested for non payment, as the authorities cited by defendant’s counsel hold; but we are of opinion that the omission to allege that the draft was duly protested is substantially covered by the averment that the draft was not paid when duly presented, and that the balance then due petitioner from Watson by reason of said transaction amounts to at least the ■sum sued for. We think the averment sufficient to let in proof in the trial of liability by notice of protest, or protest -waived, as it may have been, or liability incurred, as it may have been, by some other kind of waiver, or liability by special contract by petitioner with its New York correspondent. It is unnecessary to set out ip detail the evidential facts. We think this affidavit a substantial compliance with our statute, and the authorities on the subject. See 4 Cyc. 490, and decisions and precedents cited in notes.
The judgment complained of simply dismissed plaintiff’s petition, on motion of defendant. The case was not allowed to come to trial on its merits. Por the reasons given we think there is error in that judgment and that it must be reversed, and the case remanded to be further proceeded in according to the principles enunciated herein and further according to the rules and principles of law governing the trial of like casos, and we will so order.
Reversed and Remanded. | [
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RobiRtson, JUDGE:
The question in this case arises on a bill of interpleader. We are called on to say whether under the will of Uriah B. Kerney, late of the county of Jefferson, the income of a certain fund can he reached by creditors of James William Kerney, son of the testator.
The provisions of the will, relating to the estate involved, are as follows:
“4. All the remainder of my land, including my home farm, except the lots in town, I do hereby give and devise to my youngest son, James AYilliam Kerney, charged however with the annuity, etc.”
“10. In case of the death of my youngest son, James William Kerney, during his minority and without issue of his body, it is my will that his whole estate, real and personal, shall be equally divided between his brother, John K. Kerney, and his sister, Elizabeth Kerney, but after he arrives at the age of twenty-one years, whether he have'issue or not, he may dispose of his property hereby devised as he may think proper, subject only to the limitations and restrictions of Article 11,-as follows :
“11. If my youngest son, James William Kerney, sell his land, there shall remain in the hands of the purchaser and as a lien upon said land the sum of Twenty-Five Hundred Dollars for the sole use and support and for no other purpose, of the said James William Kerney during the term of his natural life, and my Executor, or his successor, is hereby appointed arid constituted a Trustee for the collection of the interest accruing on the above twenty-five hundred dollars in the hands of the purchaser of the said land, and I do direct that no part of the principal of the twenty-five hundred dollars shall be used for the support of the said James William Kerney, but the interest only during his natural life.”
After reaching his majority James William ICerney sold the land, and the sum of twenty-live hundred dollars was left at interest secured by a lien as provided in the will. The present owner of the land asks the court by his bill of interpleader to direct -him as to proper payment of the interest on the sum, since it is claimed both on behalf' of James William Kerney and on behalf of creditors to whom James William Kerney has given deeds of trust covering this income.
Do these provisions of the will establish a trust estate in the income from the twenty-five hundred dollars, beyond the reach of creditors ? The circuit court has held that they do. We are of the same opinion. A spendthrift trust is created. We can see no other intention manifested by the will. The testator very evidently intended to make a determination on the part of the son to desert a good source of income from the land a test of the taking effect of the spendthrift provision. The trust provision in relation to James William Kerney clearly comes within the following approved definitions: “Spendthrift trust is the term commonly applied to those trusts that are created with a view of providing a fund for the maintenance of another, and at the same time securing it against his own improvidence or incapacity for self-protection.” 26 Am. & Eng. Enc. of Law 138; Wagner v. Wagner, 244 Ill. 101. “A spendthrift trust is the term commonly used to designate a trust created for the maintenance of the cestui que trust, and to secure the fund against the improvidence of the cestui que trust." Kessner v. Phillips, 189 Mo. 515. It is not necessary that the beneficiary be denominated a spendthrift or that the testator or donor shall give his reasons for creating the trust; or 'that the instrument shall contain all restrictions and qualifications incident to such trust. Wagner v. Wagner, supra.
It is argued at great length that no such arrangement as that provided by the will can avail as against creditors; but we hold that the ease is ruled by Guernsey v. Lazear, 51 W. Va. 328. That case recognizes the validity as against creditors of such provisions as the one in question, whatever may be the law of some other jurisdictions. We are not disposed to review the principles so ably discussed by Judge BRA^non in that case. In a way, we gave further recognition to the same principles in Talley v. Ferguson, 64 W. Va. 328. It is true that in those cases there were direct words of prohibition against 'debts. It was directly stated in the instruments creating the estates that creditors should never subject those estates to the payment of debts. But do not the provisions of this will just as clearly do the same? This will says that the trust estate created is for the sole use and support of James William Kerney during his natural life and for no other purpose. Does not this bar out debts? Would not the money go for another purpose than use and support if it was allowed to go for debts? What use and support from the invested sum would James'William Kerney have if his creditors took the interest arising from it? Plainly the will manifests an intention that creditors shall not take this income provided for the support of James William Kerney. “It is not necessary that an instrument creating a spendthrift trust should contain an express declaration that the interest of the cestui que trust in the trust estate shall be beyond the reach of creditors, providing such appears to be the clear intention of the testator or donor as gathered from all parts of the instrument construed together in the light of the circumstances. The court will look to the intention disclosed by the whole instrument, rather than to the language employed in any particular clause of it.” 26 Am. & Eng. EnC. of Law 141-142. By the terms of the will the income of the money remaining in the land does not belong to James William Kerney. It belongs to an active trustee to be applied by that trustee to a sole and particular purpose. Kerney’s creditors can not reach it. Perry on Trusts, (Sixth Edition), sec. 386a, and notes thereto.
The argument that the trust was created by the beneficiary himself, by his selling the land, and that therefore it is not valid as against creditors, is not tenable. The testator created the trust. We can not see it in any different light than if he had directly created such trust in the first instance by directing twenty-five hundred dollars in the hands of a trustee to be put out at interest solely for the use and support of his son during life.
It is said that a part of one of the debts sought to be taken from this income was contracted by James William Kerney for the support of himself and family. Though that issue is raised by the pleadings, there is not a word of proof to substantiate the fact, even if it would alter the case.
It is not our province within the limits of this case to decide as to whom the twenty-five hundred dollars will belong at the death of James William Kerney. The interpleader has not asked for a disposition of that question, nor can he ask it until occasion therefor arises.
The decree is right. It will be affirmed.
Affirmed. | [
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POEEEUBAUGER, JüDGE t
Marion Peterson recovered a judgment for $15,000.00' against the Paint Creek Collieries Company, in the circuit court of Kanawha county, as damages for loss of an arm, alleged to have been caused by the negligence of the defendant. He was a motorman in the employ of the company and the arm was injured by a fall of stone, slate or shale at a place near the mouth of the mine while he was coupling cars. Shortly after the injury, it became necessary to amputate the arm in order to save his life.
The seven counts of the amended declaration, a demurrer to which and each count thereof was overruled, proceeds upon two theories, the assumption of the duties of the mine boss by the company itself through its manager, and failure of the defendant to supply timber and materials for shoring up the roof of the mine at the place at’which the accident occurred, so as to make it a safe place in which to work, after notice of its defective and dangerous condition. The first, third, fifth and sixth counts proceed upon the first theory, and the second, fourth and seventh upon the other. Those of each class vary somewhat in the mode of statement, but their purpose is to fix liability on the same ground. The first says the manager of the company examined the roof, of the main entry at the place at which the plaintiff was injured and found it loose and: liable to fall upon any one passing thereunder “and undertook-himself in the place and stead of the mine-boss of said mine to have said danger remedied”; the third that the mine boss “gave notice to the defendant of the dangerous condition of the roof of said mine in a place thereof at or near the drift-mouth thereof, and at the point or place where plaintiff was subsequently injured, and his reliance on the defendant to repair and put into a safe condition said point or place in said roof, which consisted of dangerous masses of rock, slate, earth, etc., insecurely attached to the roof thereof, and liable to fall at any moment, which duty was assumed by it, then and there and retained !by it up to and including the happening of the event of the injuring of the plaintiff”; the fifth that the manager or agent, finding the place in the roof of the main entry, within a few feet of the drift-mouth, the place at which the injury occurred, in a bad condition and dangerous because liable to fall, “undertook and did assume charge and control thereof in the stead and place of the mine boss of said mine, and completely ousted, him from any work at said place relating to said defect in said roof aforesaid, and all responsibility as to its condition, and as such manager or agent thereof overlooked the necessity of erecting props or supports at such point”; and the sixth that the manager examined the roof at the point in question “and found the same loose and in a condition liable to fall upon any one passing thereunder, and could have by the exercise of reasonable care in inspecting the same and acting on the knowledge-thereby disclosed, have kept said passageway reasonably safe for plaintiff and others.”
The second count charges bad condition of the place and that the mine boss reported to the operator his inability to comply with his duties, imposed by the statute, respecting measures, of safety of the haulway and failure of the operator to-take such action as was necessary, although a space of time intervened between the notice and the injury sufficient to permit the .taking down of all the bad roof or such other measure of safety as was necessary; the fourth, that the mine boss made a requisition or demand upon the manager of the company for timbers and material to be used to support a place in the roof at or near the point at which the injury occurred, which the mine boss had considered dangerous, and that the manager had promised to supply them; and the seventh, that the company negligently permitted the roof of the haulway of the main entry at the place of the injury to become unsafe and dangerous, which the mine boss was unable to remedy because the defendant failed to furnish suitable props, caps and timbers to secure the loose coal, slate and rock, and that the mine boss notified the defendant of the dangerous condition of the haul-way at that point and of his inability to remove the loose coal, slate and rock or safely to secure the same so as to prevent danger, and also that he did not have the necessary props, caps and timbers with which to do so, whereupon it became the duty of the defendant either to remove the loose coal, slate and rock, if practicable, or if not, to make the same secure or provide suitable props, with which the mine boss could have done so. These allegations were accompanied by averments of breaches of the duties alleged.
The third and sixth counts, showing no more than notice of the defective condition of the roof by the mine boss to the defendant, ignorance of this condition by the plaintiff and failure of the defendant to remedy the defect and consequent injury to the plaintiff, fails to show any ground of liability, since the statute makes it the duty of the mine boss to keep the haulways and working places in a safe condition, the mine owner furnishing the materials of course. They charge no neglect of duty on the part of the owner in this respect, nor show any demand or requisition for materials or any knowledge of the lack thereof on the part of the owner. The sixth avers defendant’s knowledge of the defective condition of the roof at a time some weeks prior to the injury and, upon that, charges duty to exercise reasonable care in inspecting the place and keep the passage way reasonably safe. This was the duty of the mine boss, and, for aught that is alleged in this count, the manager was justified in assuming that he would remedy the defect. jSTo requisition or demand for materials or tools, nor any lack of the same is averred. The second is equally defective. The mine boss’s notice of his inability to remedy a defect does not absolve him from further duty. It was still incumbent upon him to do the work or cause it to be done, if the operator furnished the necessary machinery, labor and materials. As to whether the operator furnished them, the count is silent. Its purpose is, upon such notice, to devolve all duty in the premises upon the owner, contrary to the express terms of the statute.
To first and fifth, charging usurpation of the duties of the mine boss by the operator and the exclusion of the former from his duties and functions in the mine stand upon a different footing. Under the statute, the owner or operator of a mine is absolved from certain duties and liabilities by his employment of a mine boss. In the operation of a mine without a mine boss, his status is that of an ordinary employer of labor and he remains subject to that general mass of law defining the rights, duties and liability, incident to the relation of master and servant. If, having employed a mine boss as the law requires, he oust him from the duties devolved upon him by the statute and undertakes to perform them himself, he stands logically and practically in the same situation as if he had not employed him at all. He does that which the statute forbids and fails to obey its command as to those things which he assumes to do in the place of the mine boss. Under such circumstances, the protection of the statute cannot be reasonably invoked, because the relation does not exist. It requires compliance with the statute in substance and effect to confer upon the mine boss the independence and superiority, accorded to him by the-decisions in Bralley v. Tidewater &c. Co., 66 W. Va. 278, Squilache v. Coal & Coke Co., 64 W. Va. 337, and other cases cited in the brief for the plaintiff in error, the doctrine of which is not at all questioned or impaired by this conclusion. As to these counts, we are of the opinion that the demurrer was properly overruled.
The fourth and seventh counts, charging notice of the defect, inability to remedy it on account of lack of materials, and demand for the same and non-compliance therewith, seem to make a clear case of negligence on the part of the operator under the express terms of the statute, making it the duty of the operator or his agent, under such circumstances, “to at once attend to the matter complained of by the mine foreman, so as to enable him to comply with the provisions hereof, if the same can be practically done.” Against this view nothing is urged except the general rule of non-liability, declared in so many cases for failure of duty on the part of the mine boss only. In every case of the application of this rule, the court has carefully distinguished between statutory duties of the operator and those of the mine boss. In no instance, has that rule been permitted to absolve the former from liability for injury resulting from his failure to do anything required of him. So we think these two counts are clearly good.
The evidence to sustain the two theories of liability, set forth in the declaration, goes back in date more than one month before the occurrence of the injury. None of it indicates usurpation of the powers of the mine boss in charge at the date of the injury nor any ouster or exclusion of that official by the operator or its agent. Neither is there any evidence of notice by that mine boss to his employer of his inability to remedy the defect in question or demand by him for machinery or materials necessary to enable him to remove or remedy the same. Evidence was adduced, tending to prove exclusion of a former mine boss or usurpation of his powers by the defendant’s manager and notice to the latter of the former’s inability to remedy the defect and a promise on the part of the manager to do the work himself, or cause it to be done, upon which the mine boss relied as matter of excuse for his failure to do so. This occurred in December, 1907, when one Parsell was the mine boss. On the last day of January or first day of February, 1908, Parsell ceased to be the mine boss and one Edward Morris took his place. Thereafter, on the 3rd day of March, 1908, the plaintiff was injured by the falling of rock or slate from the roof. As to the character of the defect, whether latent or apparent or discoverable by inspection, there is much conflict in the testimony, the . defendant claiming the rock which fell was what is known among miners as a “pot” or “kettle bottom,” supposedly a petrified stump imbedded in the shale or slate so firmly as to give no evidence of its presence when the roof is sounded, but falls by reason of exposure to the air; and the plaintiff claiming the substance which fell was ordinary slate or shale. Not a particle of evidence, tending to prove any interference with Morris’s powers and duties by the manager of the defendant company or any other representative thereof, after he entered upon the discharge of his duties, is disclosed by the record. There is considerable evidence tending to prove a defective and dangerous condition in the roof of the mine, both before and after the employment of Morris, and of the manager’s knowledge thereof, and there is some testimony tending to impeach the testimony of Morris as to what he did to improve its condition by the removal of loose slate and the placing of posts and timbers in the mine. His competency, however, is not attacked either in the declaration or by the evidence.
In this conclusion we'have not overlooked the effort to prove a demand by Morris upon Kern, the mine superintendent, for timbers and materials and Kern’s promise to supply them and his failure to do so, by the testimony of the plaintiff and witness Koontz. On cross-examination, Morris was asked whether he had not stated to Peterson and Koontz that he had notified Kern, the superintendent, that the place was dangerous and required timber to fix it and make it safe, and that Kern had told him he would send the timber and have the place made safe. Morris said he had not, but that he had had a conversation with Kern about timbering the mouth of the mine after the injury of Peterson, because the workmen, after that, had become nervous about it, — “suspicious of it,” to use his terms. He was also asked whether he had not, in the same conversation, said Kern had failed to supply the timber and he had himself gotten three posts and done the best he could before the accident. This Morris also denied positively. Peterson, in his rebuttal testimony, says Morris made the statements and had said he made the demand before the accident. Koontz also says he admitted he had notified Kern that the place was dangerous and Kern had said “Well, we will timber it,” or words to that effect. If adimssible at all, this evidence contradicts 'Morris and goes to Ms credibility, but it wholly fails to prove any demand upon Kern or any other managing agent of the company. Kern also positively denies that Morris ever made such a demand before the accident and no witness testifies of his own knowledge that it was made. Neither Peterson nor Koontz pretend to say they heard Morris tell Kern what they say he admitted to them, and there is not a scintilla of evidence tending to prove the actual demand or notice. It cannot be received to prove notice or demand. Morgan v. Insurance Co., 6 W. Va. 496; Forde v. Commonwealth, 16 Grat. 547; Charlton v. Unis, 4 Grat. 50.
As the case stood at the time, the evidence was inadmissible for the purpose of impeachment. Whether Morris had given such notice or made such a demand was not in issue in the sense of evidence pro and con. Morris had not then denied it and nobody had asserted it as matter of evidence. The question propounded to him was not inconsistent with anything he had said. At that time, it was wholly outside of any issue developed by the evidence, and brought before the jury a collateral matter in an effort to discredit the witness. Under principles declared in State v. Goodwin, 32 W. Va. 177, the plaintiff was bound by Morris’s answer as to his alleged admission and could not adduce evidence to contradict it. Whether the cross-examining party would be entitled to prove the matter inquired of as a part of his case determines its character as to materiality. If the cross-examining party cannot prove the matter as a part of his case it is collateral and not a subject of cross-examination for ground of impeachment, unless the witness has made it a subject of his testimony in chief. State v. Goodwin, cited. Morris had made no reference to his alleged admission in his testimony in chief, and the plaintiff could not have proved it as a part of his-case, for it was made, if at all, long after the accident and was no part of the res gestae. To bind his principal, the declaration of an agent must have been a part of the res gestae. Hawker v. Railroad Co., 15 W. Va. 628; Corder v. Talbott, 14 W. Va. 277; Clark & Skyles on Agency, pp. 1029-31, secs. 468, 469. Hence the trial court should have sustained the objections to the offers of proof of the admission.
Section 11 of chapter 154 of the Code makes it the duty of the mine boss to keep a careful watch over the ventilating apparatus, the air-ways, traveling-ways, pumps and drainagé; to cause all loose coal, slate and rock overhead in the working places and along the haulways to be removed or carefully secured so as to prevent danger to persons employed in the mine; and to cause sufficient props, caps and timbers, as nearly as possible of suitable dimensions, to be furnished for the places where they are to be used. Failure of duty on the part of the mine boss, respecting any of these matters, resulting in injury to any person working in the mine, imposes no liability upon his employer, because, under many decisions of this Court, so well known as to need no citation, he is held to be a fellow servant of the miners.
We are asked to re-examine and overrule this line of decisions, notwithstanding our recent re-examination thereof. Nothing is found in the brief, however, that has not been carefully and thoroughly considered. The variance of the terms of our statute from those of the Pennsylvania statute has been deemed insufficient to justify'a construction different from that adopted by the Pennsylvania court, and the reasoning of the Indiana and Illinois courts, leading to a different construction, has been carefully considered on former occasions, and held insufficient, in our opinion, to warrant the overruling of the decisions, complained of.
At the time of the injury and for a month prior thereto, Morris was in charge of the mine as mine boss, unrestrained by any limitation upon his powers and unexcused from duty, so far as the evidence discloses, by any promise or undertaking on the part of the manager to perform any of such duties for him, if, indeed, such an undertaking or promise would constitute an excuse for his neglect to perform them. He was no party to the conversation between the manager and his predecessor, Parsell, in the preceding December, nor does he appear to have had any knowledge of it. He says he made daily and thorough inspections of the roof and took down a great deal of slate in dangerous places and put up props in others. As to some of this his testimony is contradicted by alleged admissions, but, if it is false, there is proof of no more than neglect of duty, resulting in injury to a fellow servant for" which, under the law, there is no right of recovery against the employer.
A necessary sequence from this conclusion is the insufficiency of the evidence to sustain the verdict or justify the court in giving plaintiffs instruction No. 1, reciting hypothetically the danger, the mine boss’s notice thereof to the employer, his lack of sufficient props, caps and timbers, the duty of the defendant to provide them or cause the place to be made safe, and the injury resulting, and requiring a verdict for the plaintiff, in the event of findings in his favor upon the questions submitted. As these vital contentions were unsustained by any evidence at all, there was no warrant in law for the giving of the instruction. To warrant an instruction there must be some evidence, tending in an appreciable degree to prove the essential elements of right of recovery. For the same reason, plaintiff’s instructions No. 2, relating to the measure of damages, in the event of a finding for the plaintiff, (an impossibility for want of evidence), and No. 3, relating to the credibility of witnesses, (which did not properly arise at all since the evidence disclosed no issue), should have been refused.
Plaintiff, a motor runner, was injured while coupling cars in the absence of the man employed for that purpose. Defendant’s instruction No. 1 would have told the jury he could not recover, because he was injured while away from his post of duty. The evidence shows it was customary for the motor runner to couple cars in the temporary absence of the ear coupler. That alone justified the court in refusing the instruction. Defendant’s instructions Nos. 4, 8 and 9, absolving the defendant from liability from injuries resulting from neglect of duty on the part of the mine boss, were improperly refused. Defendant’s instruction No. 12, intended to advise the jury against right to find for the plaintiff on the theory of incompetency of the mine foreman was improperly refused, since there was no allegation of his incompetency nor any.evidence tending to prove it. Defendant’s instruction No. 14 was substantially the same as Nos. 4, 8 and 9 and should have been given. Defendant’s instruction No. 15 denying right of recovery unless the jury should find the place at which the accident occurred unsafe when the defendant took charge of the mine and began to operate it, was properly refused, it appearing that the defendant had bought out another company sometime prior to the action. The instruc tion would have been misleading and was inapplicable. Defendant’s instruction No. 17, reciting at length the purposes of the statute requiring employment of mine bosses, the reasons which impelled the legislature to enact it and its wholesome effect and operation, was properly refused because it was argumentative. Instruction No. 18, declaring a presumption of competency on the part of the mine bosses, Morris and Par-sell, was properly refused, since their competency was not put in issue. Incompetency was not alleged. Instructions Nos. 20 and 16, the latter a modification of instruction No. 15, were properly refused for the reasons stated in disposing of No. 15, as at first presented.
Pour of the ten special interrogatories asked for by the defendant were refused. The object of one of these was to obtain a finding as to when the roof of the haulway became unsafe, if at all, and what particular act of negligence was the proximate cause of the injury. Another asked for a finding as to whether mine boss Morris was relieved of any duty through the defendant’s general manager. Another was in substance the same as the one just described. Another was intended to ask the jury whether plaintiff was injured by reason of the incompetency of the mine foreman. The last three were properly refused because they relate to matters as to which there was no issue. The first one was properly refused because of its generality and inconclusiveness.
On cross-examination of witness Lavender, the court sustained an objection to a question as to the character of fallen slate in the mine. This was matter as to which he had not testified in chief. Hence, he was defendant’s witness and there was no showing as to what his answer would have been. Moreover, the defendant was not entitled to propound such a quest'on on cross-examination. He should have introduced the witness as his own for the elicitation of such evidence. On the cross-examination of Parsell, the court sustained an objection to a question as to why he did not call on the defendant’s agent in charge of timber and make him furnish such timber as he needed. In this, the court did not abuse its discretion. The witness had already repeatedly given his reason for not demanding timbers. The court struck out, over the objection of the defendant, an answer of its witness, Veazy, describing the character of the roof around the place from which the rock or slate had fallen. This was non-prejudieial because the witness, in response to other questions, was permitted to testify to the same thing. Objections were sustained to two other questions propounded to Veazy. As the record fails to show what his answers would have been, we are unable to say the court erred in sustaining the objections. For the same reason, we are unable to say whether it erred in sustaining objections to several questions propounded to the witness Rogers. An answer of this witness as to the condition of the mine at the place at which the injury occurred about a year after the accident was excluded on the motion of the plaintiff. The remoteness in time justified the action of the court in this instance. An objection to a question propounded to the witness Morris as to whether Rogers, the manager, had given him any instructions that hampered him in the discharge of his duties was properly sustained, because the witness had repeatedly testified to his freedom in that respect. Besides, it does not appear what the answer would have been had the objection been overruled. The court permitted a witness for the plaintiff to testify, over the objection of the defendant, to his opinion as to whether the fallen rock was a kettle bottom. He was an experienced miner and necessarily had knowledge on that subject superior to that of the jury. Moreover, like other persons, he was no doubt unable to describe the fallen substance as fully and thoroughly as it appeared to him on inspection. Hence, we think the court properly permitted him to answer the question.
For the errors noted, the judgment will be reversed, the verdict set aside and the case remanded for a new trial.
Reversed and Remanded. | [
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Robinson, Judge:
The writ of error herein lies to a judgment in habeas corpus proceedings, giving to Peter Hurley the custody of his infant son. It will serve no purpose to detail the fad» — sentimental and romantic though they be — out of which the proceedings arose. The story is an old one, of a marriage, a child, a separation, and a determined effort on the part of each parent to deprive the other of the custody of the offspring.
The writ issued against Mary Ellen Hurley, the mother of the child., and E. M. Ashcraft, its step great grandfather, who had been appointed its guardian, though the child had no estate. Both of these parties made due return to the writ. The mother disclaimed that she had the custody of the child and averred that it was in the custody of its duly appointed and qualified guardian. The guardian made return that the child was lawfully in his custody, averring that the father had abandoned the child, and that in any event he was wholly unfitted to have its custody by reason of immorality and other shortcomings on his part.
As to the matters arising on the writ and the returns thereto, the court heard verbal testimony of witnesses for both the petitioner and the guardian, together with one deposition for the latter. A decree of divorce and the record on which the same was based, in a suit by Mary Ellen Hurley against Peter Hurley, was also considered. The decree of divorce had been obtained shortly prior to the trial of the proceedings in habeas corpus. The grounds alleged for the divorce were cruel and inhuman treatment. The decree was obtained in the absence of the defendant and merely on order of publication. Though the custody of the child was sought by the mother in the divorce suit, the decree was silent in that regard.
Respondents submitted themselves to a trial of the matters arising on, the returns, notwithstanding those matters were not traversed by replications. How they insist that the facts alleged in the returns were conclusive because they were mot denied. Though the case was tried as if replications to the returns were in, they would have the court reverse merely for the want of the replications. We concede that the matters set up in the returns, without more, would suffice to deny the judgment. But the court heard more. It heard proof in denial of the matters on which respondents relied. If the case had rested on the returns simply, the judgment would be clearly wrong.. They were complete answers denying that which petitioner sought. Brand v. Swindler, 68 W. Va. 571. However, when the case has been tried as though the returns were denied, we should not be so technical as to reverse and remand merely for an opportunity to put in that which really was considered as in.
It is true that trial by jury without issue joined is error for which the judgment will be reversed. Shires v. Boggess, 68 W. Va. 137. We are not willing, however, to carry that common law principle further and apply it in proceedings like those under consideration. The principle did not originally apply in habeas corpus as it originally did, and still does, in ordinary trial actions. At common law the return in habeas corpus was conclusive ; .there was no call for issue and trial of fact. Church on Habeas Corpus, (2nd Ed.), sec. 149. By statute, habeas corpus has been liberalized. “In this State the court is not precluded by the return from inquiring into the truth of the matters therein alleged.” State v. Reuff, 29 W. Va. 751. The statute provides for trial of fact beyond the return. The court or judge may'hear “the matter both upon the return and any other evidence.” Code 1906, ch. Ill, sec. 6. The statute does not specifically provide for a replication to defensive matter in the return as a prerequisite for a hearing or trial thereon. Perhaps, it would be good practice to employ a replication so as to make an issue on .the return before the hearing. It would, at least, be promotive of regularity to do so. But neither by the common law nor by statute has a replication in such case ever been directly demanded.
The writ of habeas corpus as a remedy in cases pertaining to the custody of infants is of an equitable nature. Green v. Campbell, 35 W. Va. 698. Why should the technical rules of the common law be applied to it so far as to reverse for the mere failure to make a complete joinder of issue ? Habeas corpus proceedings in such cases are analogous to suits in equity. The want of a replication in a suit in equity where the defendant has taken proof as if there had been a replication can not be ground for reversal. Code 1906, ch. 134, sec. 4. Of course we do not mean to say that this statute applies to habeas corpus proceedings. It does, however, indirectly bear on all proceedings that are analogous to suits in equity. It shows the spirit of our jurisprudence in relation to the want of a replication in proceedings of an equitable nature where the parties have proceeded as if a replication was filed.
Some other technical objections to the proceedings are raised. They are plainly untenable and demand no further comment.
The law in relation to the rights of parents to the custody of their infant children is fully enunciated in former decisions of this Court. It needs no repetition at our hands. Mathews v. Wade, 2 W. Va. 464; Rust v. Vanvacter, 9 W. Va. 600; State v. Beuff, supra, Green v. Campbell, supra; Cunningham v. Barnes, 37 W. Va. 746. The case under consideration calls for the application of no new principle. Indeed the general principle applicable for the determination of the case is found in the statute itself, wherein it provides: “The father of the minor, if living, and in the case of his death, the mother, if fit for the trust, shall be entitled to the custody of the person of the minor, and to the care of his education.” Code 1Q06, ch. 88, sec. 7.
“The father is the natural guardian of his infant children, and in the absence of good and sufficient cause shown to the judge or court, such as ill usage, grossly immoral principles or habits, want of ability, etc., is entitled to their custody, care and education.” Rust v. Vanvacter, supra. In connection with this statement of the law, Judge Haymond said: “The custody of the minor will be assigned to the person having the right, unless it appears he is an improper person to take it. And when such person has not the custody, and is seeking to he restored to it, the court will exercise its discretion according to the facts, consulting the wishes of the minor, if of years of discretion; if not, exercising its own judgment as to what will be best calculated to promote the interest of the child, having due regard to the legal rights of the party claiming the custody.”
In the proceedings we have here for review, the father is seeking the custody of his infant son. The statute gives him the right to that custody if he is fitted for the trust. The case involves no considerations that affect the statutory rule, such as we find in Green v. Campbell, supra, and Cunningham v. Barnes, supra. Respondents met the demand of petitioner for the enforcement of his legal right to the custody of his child by alleging that he was unfitted for the trust by reason of neglect, immorality, bad temper, want of ability, and other considerations. The court that had the parties themselves and practically all the witnesses before it has ruled against the contention that the father is so unfitted as to be denied the custody of his son, or that the child’s welfare demands that the custody be left with the-step great grandfather.
A careful review of all the evidence in the case leads us to-the conclusion that respondents did not show that the father was-so unfitted for the trust as to be denied that which was his both by nature and by the terms of the statute. Certain it is that, we do not feel justified in disturbing the finding in that behalf' made by a considerate and just trial judge. It is not proved that the father is a bad man. He is shown to have some derelictions, as all human nature has. The age of the perfect man is-not yet at hand. Upon the whole, the evidence shows Peter Hurley to be a sober and industrious man. It shows that he is affec tionate toward his child. It shows that fortune has recently come to him so that he can well provide for his son. The charge that he abandoned the child to strangers is not sustained. Nor does it appear that the best interests of the child so demand that it be left where it is as to outweigh the legal right of the father to its custody. There are considerations in relation to the situation of respondents that must have weight in the determination of the serious question of the child’s welfare. No doubt these considerations controlled to some extent the finding made by the trial judge.
The legal rights of the father and the circumstances of the case in other respects lead us to an affirmance of the judgment.
Affirmed. | [
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"Robinson, Judge:\nBartholow performed labor and furnished material in the building of a house for I(...TRUNCATED) | [-0.003980358596891165,-0.02380792237818241,-0.018898045644164085,-0.010622651316225529,0.0394274406(...TRUNCATED) |
"Brannon, President :\nOn the 10th day of June, 1912, the council of the City of Martinsburg granted(...TRUNCATED) | [-0.02487947978079319,0.04196639358997345,-0.008313373662531376,0.02498663030564785,0.04208395630121(...TRUNCATED) |
"POFEENBARGER, PRESIDENT:\nExcept in 'so far as they pertain to the arrest of the petitioners outsid(...TRUNCATED) | [-0.04274337738752365,-0.0003172878932673484,-0.0452907532453537,0.004416447598487139,0.042598575353(...TRUNCATED) |
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