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JOHNSON, PRESIDENT:
The plaintiff gave the defendants a notice in these words:
“To "Ward'Parsons, late sheriff of the county of Tucker, State of West Virginia, and S. B. Wamsley and S. W. Bowman his sureties upon the school bond of said sheriff.
“Gentlemen — Whereas you, Ward Parsons, was on the — day of-, 1876, duly elected, and on the — day of-, 1876, duly declared elected to the office of sheriff, of the county of Tucker, State of West Virginia, for the term of office commencing January 1, 1877, and ending December 31, 1880. And you, Ward Parsons, as such sheriff elect, on the — day of-, 1877, entered into, as required by law, with you S. B. Wamsley and S. W. Bowman as sureties therein, and the county court of said county took from you and approved and ordered to be filed and recorded, as required by law, a bond known as the school bond in the penalty of ten thousand dollars with a condition thereunder written, in these words, to-wit: ‘Now if the said Ward Parsons shall faithfully discharge the duties of his office of sheriff as aforesaid, and account for and pay over, as required by law, all money which may come to his hands by virtue of the said office, then the above obligation to be void, otherwise of force.’ And you, the said Ward Parsons, entered upon the discharge of the duties of your said office on the 1st day of January, 1877, and continued to discharge the duties of your said office until the expiration of your term of office, and by virtue of your said office collected all school-levies made for the teachers’ fund in the district of St. George in said county during your term of office.; and you on the — day of-, 1881, having made a settlement with the proper officers oí said county, as required by law, whereby it is properly made to appear, that you,- as sheriff aforesaid, was at that time indebted to the ‘teachers’ fund’ of St. George district in said county in the sum of three 'hundred and twenty-seven dollars and thirty-five cents, which said settlement was the last one made by you of school-moneys, which went into your hands, during your said term of office; and we having entered an order upon our order-book on the — day of-, 188-, and caused a copy of said order so entered by us to be delivered to you, whereby you was directed to pay the amount in your hands, due said district, to A. 0. Minear, present sheriff and ex officio treasurer of said county and the several districts therein; and you, the said Ward Parsons, having failed and refused to account for and pay over the said sum of money and any part thereof according to law and according to said order so passed by us, nor has any one else paid the said sum oí money, or any part thereof for you, but to pay the same you and every one having the right to pay the same for you have heretofore and still neglect and refuse so to do; by reason whereof the condition of your said bond has been broken, and an action hath accrued to us to ask, have and demand of and from you, and each of you, the said sum of three hundred and twenty-seven dollars and thirty-five cents, above mentioned, with proper interest thereon, and damages thereon at ten per cent, and costs. Notice therefore is given to you and to each of you, that on the first day of the May term, 1882, of the circuit court of Tucker county, West Virginia, we by our attorney, will move said court'for judgment against you on our behalf for the sum of three hundred and twenty-seven dollars and thirty-five cents, the same being the amount due by you to the ‘teachers’ fund’ of St. George district of Tucker county, with proper interest on said sum of money and damages thereon at ten per cent, and costs.”
The notice is signed by the said Board of Education, by counsel,
On the. 15th clay of May, 1882, the defendants moved to quash the notice, which motion the court sustained and quashed said notice and gave costs to defendants.
To this judgment the plaintiff in the motion upon the notice obtained a writ of error.
It is insisted that the notice is insufficient. I can do no better than to quote what Professor Minor says on the sufficiency of a notice, in which he reviews the Virginia authorities on the subject; and we approve what he says as the law applicable to notices of the character of that before us.
“Its purpose is to acquaint the defendant with the grounds, on which he is to be proceeded against, and if it be so plain, that the defendant cannot mistake the object of the motion, it suffices, however wanting it may be in form and technical accuracy. Being usually drawn not by a lawyer, but by the party plaintiff himself, it is viewed with indulgence; and although, if too vague and indefinite to warrant the interposition of the court, it will be fatal, (Coffman v. Sangston, 21 Gratt. 267) yet it is to be construed with favor, the court striving to apply it according to the truth of the case, so far as its terms will admit. 1 Rob. Pr. (1st ed.) 589; Graves v. Webb, 1 Call. 443; Segouine v. The Auditor, 4 Munf. 398; Steptoe v. Same, 3 Rand. 221; Supervisors v. Dunn, 27 Gratt. 612. But if it descend to particulars as to dates, sums and' names, the documents 'referred to, when produced, must cor-' respond with the notice or no judgment can be given. 1 Rob. Pr. (1st ed.) 590 ; Drew v. Anderson, 1 Call. 51; Cookes v. Patriotic Bank, 1 Leigh 433. A few instances will serve to illustrate the general rule. In Lemoigne v. Montgomery, 5 Call. 528, a notice for a motion on a forthcoming bond, signed by the plaintiff, was held to be sufficient, although it did not state to whom the bond was payable, the defendant being obliged in reason to conclude that it was payable to the plaintiff. So in Booth v. Kinsey, 8 Gratt. 560, a notice on a forthcoming bond was held to be not defective for omitting the Obligors, to whom the notice wais not designed to be given. Aud in Segouine v. Auditor, 4 Munf. 398, a notice for' a motion for a judgment against a sheriff for the amount due on executions for fines put into the sheriff’s hands, ‘as appears by a copy of his receipt,’ was deemed sufficient without men tioning the aggregate sum due, the amount of each execution or the time of delivery to to the sheriff. So in Hendricks v. Shoemaker, 3 Gratt. 197, a joint notice to a constable and his sureties for defaults of the constable in several cases, in respect to the same plaintiff, set forth in an accompanying list, was held sufficient. Bart. L. Pr. 331-2. So in Montieth v. Commonwealth, 15 Gratt. 172, it was held that a notice against a sheriff for failure to pay taxes collected need not state on what bond of the sheriff the motion will be made. And in Supervisors, &c. v. Dunn, 27 Gratt. 612, a notice against a sheriff (D) and his sureties, of a motion for judgment for four thousand eight hundred and forty dollars and three cents, ‘the same being the amount of the said D’s deficiency and default for county-levies for the year 1869, that went into the said D’s hands as sheriff, and which he failed to account for and pay over, &c.,’ was determined to be sufficiently specific and definite to warrant a judgment thereon.” 4 Minor’s Inst, (part II) 1091. See also White v. Sydenstricker, 6 W. Va. 46. The notice in this case is much more formal and definite than some of those above referred to.
But it is insisted, that the notice in this case does not show on its face, that the plaintiff is entitled to recover, because it does not show that the sheriff refused to pay out money standing to the credit of the Board of Education upon an order of said board signed by its president and secretary, specifying the sum to be paid and the fund, to which it is to. be charged, or that the sheriff refused to pay out said money upon a certified copy of a judgment or upon decree of a court or a judgment of a justice against the said board for a sum of money therein specified, or upon the order of a county superintendent.
By section 46 of chapter 15 of the Acts of 1881, the sheriff is required to collect and disburse all school-moneys. Pie is required to keep the accounts, one ot the “building fund” and one of the “teachers-fund.” It provides, that “he shall pay out no money standing to the credit of the Board of Education except upon an order signed by the secretary and president thereof, specifying the sum to be paid and the fund to which it is to be charged; or upon a certified copy of a judgment, or a decree of a court, or justice, against the said board, tor a sum of money therein specified, or upon an order of the county superintendent.”
It is clear, that this provision of the statute has no reference to a case like this. The sheriff is ex officio treasurer of the several school-districts in the county; and this provision • shows how he shall disburse the moneys, which he holds in his hands as such treasurer. The board makes its order upon him, which order he is required to pay. "Where there is a judgment against the board, it does not require the order of the hoard to authorize him to pay it. This is a case, where the party ordered to pay the money is an ex-sheriff and ex-treasurer. While it is his duty to settle up his business and honor all drafts made upon him, while he is treasurer, yet it is clearly his duty at the end of his term upon the order of the board, to whose credit the money stands, to pay it to the sheriff, who is their treasurer, so that the board may make proper orders thereon. In this case such an order was made, if the notice be true, and served upon said late sheriff, and unless he could show, that he did not owe the money, or had legally disbursed it, or there was some other legal reason why he should not pay it over, it was his duty to pay it.
It is claimed, that if he was legally liable, Minear, the present sheriff, should have sued. There is nothing in this; it was the money stan ding to the credit of the Board, and itwould stand to the credit of the Board on the books of the new sheriff and treasurer, and all that the new sheriff would be required to do would be to receive the money from the old sheriff and give him a receipt therefor.
It is claimed, that the notice should have been in the name of the State for the use of the Board of Education. This motion was properly in the name of the Board, as the money was due the Board. Sec. 5, ch. 104, Acts 1872-3.
The notice in this case was sufficient, and showed valid grounds for judgment on the motion. The judgment of the circuit court is reversed with costs; and the motion to quash overruled; and the case is remanded.
The Other Judges CoNcurred.
JudgmeNt Beversed. Case Bemahded. | [
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Brannon, Judge:
The bill in this case exhibited in the Circuit Court of Cabell county by Wood, Brown & Co. and other firms against Emma L. Harmison and others, alleged among other things, that the firm of Harmison & Hill was indebted to the plaintiffs; that Harmison & Hill had been composed of Frank J. Harmison, deceased, and A. E. Hill, deceased; that Frank J. Harmison by his will gave all his property to his widow, Emma L. Harmison; that when Harmison died the business of the firm of Harmison & Hill was going on under the control of A. E. Hill, as manager, and the business was, by permission of Mrs. Harmison, continued for some time after Harmison’s death; that the goods sold by the plaintiffs to Harmison & Hill before II ar-mison’s death were sold on the credit of the firm as then constituted, and those sold after his death were sold under the faith inspired by certain statements of Hill that Mrs. Harmison, who had large means, was then a partner, and that she was in fact such partner; that Hill had since died, leaving no estate, and that, as claimed by Mrs. Harmison, her husband left no estate at his death; that Harmison, in life, purchased valuable real estate, and paid large sums thereon, and had conveyed it to his wife, Emma L. Ilarmi-son, subject to some unpaid purchase money duo from Ilar-mison; that when he so conveyed said real estate to his wife, said Frank J. Ilarmison was insane, and incapable of executing such conveyances, and that she had procured such conveyances by taking advantage of his condition, and that the conveyances were void as to said creditors for that reason, and also because without valuable consideration, and taken by her with intent to hinder, delay, and defraud creditors, and that the real estate was liable to their debts; that there were some assets in the hands of Hill’s administrator, as representative of a surviving partner, arising from assets of the firm of Ilarmison & Ilill. And the prayer of the bill was that the plaintiffs’ debts be decreed them, that Emma L. Ilarmison be decreed liable therefor, that the accounts of the administrators of Ilarmison and of Ilill be settled, that the real estate conveyed by Ilarmison to his wife be charged with the debts, and the conveyances to her held void and annulled as to them, and for general relief.
A decree was pronounced which declares fraudulent and void the transfers of real estate of Frank J. Ilarmison to his wife, to the extent of certain sums which ho had paid in the purchase of the estate, so far as the transfer affected debts of the firm of Ilarmison & Ilill incurred in the lifetime of Frank J. Ilarmison; and the decree declares that the creditors, to that extent, have right to charge the property in Emma L. Ilarmison’s hands. The decree absolves her from personal liability for debts contracted by Ilill, the surviving partner of Ilarmison & Ilill, after IJar-rnison’s death. Tire decree then declares that in order to make a final decree, a reference was necessary, and it referred the case to a commissioner to ascertain and report what debts Frank J. Ilarmison owed, and what debts Ilar-mison & Hill owed, at the dates of the conveyances by Ilar-mison to his wife; what portion of the debts yet remained unpaid, what portions of the debts existed when Ilarmison died, and what portion had been incurred since his death; what liens for purchase money yet remained on the said realty—and to settle the accounts of A. E. Hill, administrator.
As a prerequisite to the decision of the matters brought before us for decision, we must determine whether we have jurisdiction to decide them, as this question is raised. Is the decree appealed from such a decree as will warrant an appeal? At one time in Virginia only a final decree would support an appeal. To this rule there were objections. It was difficult to say what were final decrees. And further why, after a decree settling the real principles of the case, leaving nothing to be done but to execute it, let it go on, at cost of time and money, and, after all was done, reverse all? Would it not be better to at once test that decree by appeal? But it would not do to allow an appeal from any decree or order just because it settled something in the case, though important, leaving important subjects yet untouched; for that would greatly delay the lower court, by repeated appeals, and fill the appellate court with innumerable appeals. In the Code of 1849, and by prior legislation, the field of appeals was considerably enlarged by allowing them to certain decrees and orders, not final, but interlocutory in character, mentioning certain specific ones, and adding any decree or order ‘■adjudicating the principles of the cause.” Our Code, in chapter 135, section 1, lias enlarged upon the Virginia Code, and continued the appeal-ability of “decree or order adjudicating the principles of the cause.” No provision in that statute will sustain this appeal, unless the decree he one adjudicating the principles of the cause, within the true moaning of that provision. Not every decree that adjudicates principles of the cause is ground for appeal. It might warrant one as falling under some specified character giving a right of appeal, as, for instance, that it dissolved or refused to dissolve an injunction, or required money to be paid, or the possession or title of property to be changed, or real estate to be sold; hut if coming under no other head, and seeking shelter under the clause quoted, it must still have a certain character, as adjudicating the principles of the cause—not part of them, but all of them, as it was not intended that a dozen decrees, disposing of the matters in controversy by piecemeal, should each be appealed. In Shirey v. Musgrave 29 W. Va. 131 (11 S. E. 914) it was held that this statute authorizes an appeal under this clause only when the des-cree adjudicates all questions raised in the cause by pleading or otherwise, and that, if any one of a number of questions involved is left undetermined, it is not appealable. That case does not settle this case, however. It was not appealable because it left some questions undisposed of, while in this case the question is whether, though the decree does pass on all the questions in controversy, does it so far pass upon them as to enable us to say that it adjudicates the principles of the case? This decree ascertains no certain deists, decrees none against the property, sells no property, settles no accounts of administrators, but leaves those matters for the future, upon the return of the commissioner’s report. Clearly, that deprives it of the character of a final decree; but does it still sufficiently decide the principles involved in the case to call for an appeal? I think it does, because it holds the conveyance to Mrs. Harmison from her husband void as to creditors with debts established by the record, and holds the land liable in her hands to their payment. The cardinal questions in the suit are whether the deeds are void as to certain debts, and the land liable therefor, and whether Mrs. Harmison is personally liable, and they are adjudicated, and all other matters are hut subsidiary or sequential to those matters. It only remains to apply the principles so adjudicated, and the case is ended. The decree lays out the way for further adjudication. Upon the same clause we have Virginia cases which sustain this view. Reed v. Cline's Heirs, 9 Gratt. 136, was a suit to enforce specific execution of a title bond for the sale of land, and the statute of limitations was pleaded, and the circuit court only directed an issue to try whether the title bond had been executed, and assigned and lost; thus impliedly deciding that, if it had been so executed and assigned, the plaintiff was entitled to relief over the statute of limitations. Held an appealable case, though it only impliedly decided the principles of the case, and gave no decree of performance. In Garrett's Adm'x. v. Bradford, 28 Gratt. 609, it is held that a decree which overrules exceptions to a commissioner’s report, and confirms the report as to questions involved in the exceptions, is a decree settling the principles of the cause, as to them, so as to sustain an appeal, though the report be recommitted as to other matters. Jameson v. Jameson’s Adm’x, 86 Va. 51 (9 S. E. 480) holds that a decree that adjudicates the principles of a case is appealable, though leaving something yet to be done by the court. In Lancaster v. Lancaster, 86 Va. 201 (9 S. E. 988) the ride is stated—and it fits this case—that an order adjudicating the principles of a cause is one which so far determines the rules or methods by which the rights of the partners are to be worked out finally that it is only necessary to apply these rules or methods to the facts, in order to ascertain the relative rights of the parties with regard to the subject-matter of the suit. I think the Virginia cases hold that, if a decree only adjudicate one of the questions, that is enough. I prefer the rule of Shirey v. Musgrave, because it prevents repeated appeals from interlocutory decrees. It will be understood that what is said on this subject above relates to chancery proceedings, not to those at law.
I now come to the merits. Are the two conveyances from Ilarmison to bis wife fraudulent as to the creditors of the firm of ilarmison & Hill, who assault them, and seek on that ground to sell the land for their debts? By one of these conveyances, dated March 20, 1893, Ilarmison conveyed to his wife various lots in Huntington and Central City. All these lots, except three of small value, as compared with others, were under purchase-money liens, which the deed required Mrs. Ilarmison to pay. By the other of said conveyances, Ilarmison on 17th April, 1893, assigned to his wife all his right to two lots in Huntington which he liad purchased at a judicial sale, and on which rested an unpaid balance of over one thousand one hundred dollars purchase money, which this conveyance required the wife to pay, and then obtain a deed from the commissioner of the court.
The evidence shows that Mrs. Ilarmison owned a very considerable (in fact, a large) separate estate in Maryland, derived from her father and brother; that Ilarmison had been an active, sober, capable business man, engaged some time back in mercantile business at several points; that he owed no individual debts, save those for said property, at the date of these conveyances, and had been thought to be well off—in fact, a man of large business and means; that he was a member of the firm of Ilarmison & Hill, carrying on a large store at Parkersburg, managed by Hill, while Ilarmison took no active part in it, but resided in Baltimore, engrossed in business transactions there and at other points, and trusting the management and control of the business of Ilarmison & Hill to Hill, and that to all outward appearances that firm was doing a large business and was prosperous—the wholesaler s ever ready to sell to it. But after Harmison’s death some indebtedness was disclosed, and when, in November, 1893, Mrs. Ilarmison, who was the Maryland executrix of her husband, and the sole devi-see and legatee under his will, went to Parkersburg, with her brother-in-law, to look into the business of the firm in the hands of Hill, the surviving partner, it was found greatly embarrassed, owing upward of sixteen thousand dollars, and the assets ten thousand, one hundred and one dollars and sixty cents for stock and fixtures, sixty one dollars and eighty five cents cash, and six hundred and sixty five dollars and twenty nine cents bills receivable—total, ten thous- and, eight hundred and twenty eight dollars and seventy four cents. But it is of import to know what was the financial condition of the firm when the conveyances were made to Mrs. Ilarmison, in March and April, 1893, for we want to know whether she had knowledge then of an indebtedness of that firm. She did not know of any indebtedness of her husband individually, save what he owed for his unfortunate, improvident purchases of the properties in Huntington and Central City; for no such debts appear, save those, and it is shown there were none. But, I repeat, it is important to know whether she was aware of a large indebtedness of her husband as one of the partners in the firm of Ilarmison & Hill, because this enters materially into the question of her good faith in taking these conveyances from her husband; for if she got this property from her husband in consideration of her relieving him from large personal indebtedness, and the property from liens which would engulf it, and honestly believed it would leave no creditor unpaid, she would stand as a bona fide purchaser, untainted of fraud; whereas, if she then knew that her husband was under heavy liability for debts of llarmison & Hill, she might not stand as a bona fide purchaser, untainted of fraud. Then the pivotal question is, did she know it ? Was there anything to tell her of it ? Here we first naturally ask what was then the condition of llarmison & Ilill? We do not exactly—can not exactly—know. We do know that when llarmison died, 25th June, 1893, his widow required the surviving partner to close up the business, and he spread broad east circulars of a sacrifice sale to close up the business, and did sell the goods at reduced prices— greatly reduced prices—up to Hill’s death, 6th November, 1893; the sales from 16th April to 25th of June being seven thousand, one hundred and fourteen dollars and forty five cents, and from 25th of June to 6th November, seven thousand, two hundred and sixty two dollars and eighty four cents, and very few goods bought after Harmison’s death (only domestics, to help dispose of stock)—thus showing sales between 16th of April, the date of the last deed from llarmison to his wife, to 6th November (nearly all old stock) to the large sum of fourteen thousand, three hundred and seventy seven dollars and twenty nine cents, leaving it fair to say that at the date of that deed the assets were over liabilities. Statements made up from the books by two clerks of the firm make the assets, 16th April, twenty six thousand, one hundred and seventy seven dollars and two cents—very largely7 over any pretended indebtedness at that date. A hasty7 look at the accounts in this suit shows that they are about seven thousand dollars, and that of this about two thousand, seven hundred dollars was incurred after the date of that deed, and that at the date of the earlier deed, conveying the bulk of the property to Mrs. Har-mison, not more than about one thousand two hundred dollars had been incurred. Adding this one thousand two hundred dollars to two notes of four thousand dollars and five thousand dollars, later referred to—if both ought tobe added—and, at most, we do not see more than ten thous- and two hundred dollars indebtedness; and most certainly the assets were very decidedly more, even saying that the counsel for plaintifis is right when he claims that fifteen thousand dollars was the average stock on hand. Thus, this firm was not insolvent, but solvent, at the dates of these conveyances, though indebted; and this justifies us to say that it is probable Mrs. IIarmison not only did not know of any insolvency which did not exist, uor of any in-detedness of the firm, but had reason to suppose that all was well with the firm, and that it was able to take care of itself. It was then in the height of business and success, so far as any one but Hill could see. Why should Mrs. IIarmison know to the reverse ? She was hundreds of miles away. Indeed, did her husband know of any bad condition? Did any one but Ilill? IIarmison was far away, engaged in other fields, and trusted to his partner. If he did not know, surely his wife would not; and not likely so, even if he knew. It is thus not probable, from the condition and apparent thrift of the firm, that she knew of or suspected any of its indebtedness; and it is not proven she did, and she says on oath she did not, but regarded the firm prosperous. There was a note of four thousand dollars of the firm. What its date, we do not know. Mrs. IIarmison indorsed it, at Hill’s request, in July, and this is the first she knew of it. She paid it. There, was a note of five thousand dollars, but it is not shown whether it was the firm’s or Harmison’s. Likely it was Harmison’s, as he provided for its payment, through his wife, out of coal stock. We do not know what this stock was worth. There is no definite showing about it. It cost the wife five thousand dollars. This much is sure. There is no showing that she knew of it earlier than 10th April, 1893. She indorsed it —when, we do not know; but she, in consideration of a transfer of coal-company stock (not involved in this suit, save so far as it may bear as evidence on the question of fraud) assumed to pay and did pay it, by two checks of April 10,1893, and August 5, 1894, for two thousand dollars and three thousand dollars, which I understand went on this note. Of one of these notes she did not know till Hill revealed it to her after her husband’s death, and she indorsed and paid it. That was long after the conveyances. If the other note was a firm note, and she knew of it before they were made, she undertook its payment; and it lias no force here to convict her of fraud, unless we shall say that it ought to have moved her to suspect other unpaid indebtedness; and this would be going far in the line of supposition and suspicion. Had she taken the deeds, leaving this note unprovided for, we might say it was strong against her; but, as she provided for it, it argues that she was acting honestly, assuming what indebtedness she knew of, and did not know of any more. She may have known of it, if there was any of an amount compared with the assets, and this docs not appear; but, if she did know7 of it, it is not shown. We can not convict her of fraud, without evidence, though she be the debtor’s wddow. Fraud must be proven, and can not be presumed. At this point I ask, where is the evidence to fix fraud? That Mrs. Harmison paid valuable consideration for the conveyance is clear, because she assumed debts on the land then amounting to about ten thousand dollars. Of this large debt she has paid more than half, and can not help paying the balance. Though wife, she is entitled, in a court of justice, to hold the defense of a purchaser, unless fraud is fixed upon her. Were she without separate estate amounting to thousands of dollars, we might say her payment came from her husband, and her defense is fictitious; but this estate is most abundantly shown, and is not a question in the case, and her payments are shown by bank checks. If not proven guilty of fraud, equity ought not to cause her to lose what she paid, which she must do, if guilty, even if the court would prefer the purchase money not yet paid by her to the debts of creditors, if subjecting the land.
There is no evidence that Harmison intended fraud; much less any that the wife did. Both our Code and decisions say that, though the grantor designed fraud, yet if the grantee is a fair purchaser, in good faith, without notice of the grantor’s fraudulent purpose, the purchaser’s title can not be affected. Goshorn v. Snodgrass, 17 W. Va. 717. And a wife, if a fair, bona fide purchaser, comes under this rule. Bump, Fraud. Conv. 306; Wells, Mar. Worn. 151. Point 5, Burt v. Timmons, 29 W. Va. 441 (2 S. E. 780) admits this. If Harmison did know of any indebted ness of the firm, is it likely be would communicate it to his wife? The probability is that ho would not. If it be said these parties are man and wife, and this shifts the burden of proof on the wife, as in cases like Burt v. Timmons, 29 W. Va. 441 (2 S. E. 780) the answer is that this wife has proven, beyond even question, that she had separate estate, and actually paid, and has purged her conscience of fraud on oath, and guilt is not proven on her. What more can be demanded? To demand more, under the circumstances of tins case, would demand impossibility.
There is > popular impression that a husband can not convey to the wife. That is a mistake. At common-law he could not, the deed being void, but in equity it was good. Section 8, chapter 66, as last amended by chapter 3, Acts 1893, keeps uj3 the common-law disability of the wife to take from her husband by giving her capacity to take property from any person other than her husband, but this does not afiect the validity of the deed in equity. It is good between the parties there. Humphrey v. Spencer, 36 W. Va. 11 (14 S. E. 410). But, though good between the parties, it may be void as to creditors. As to creditors, it is a question of good or bad faith, fraud or honesty. If it be a case of entirely good faith, based on a valuable consideration paid by the separate estate of the wife, or some other person than her husband, it is good. Owing to the relation of the parties, a court will scan the transaction with the utmost scrutiny, and require the wife to show the valuable consideration, and that it came from her separate estate, and not covertly from her husband. If these things resting on her to show are shown, fraud must be shown by the creditor, under the general rule; but, where the transaction bears on its face any suspicion or badge of fraud, it raises a presumption of it, which she must meet by proof of circumstances attesting good faith. Hutchinson’s Ex’x v. Boltz, 35 W. Va. 754 (14 S. E. 267). Point 6, Livey v. Winton, 30 W. Va. 554 (4 S. E. 451) might seem to impose on the wife the burden of showing also good faith, and not on the creditor to show the lack of it. This may be the safer rule, considering the relation of husband and wife. It may be but the practical application of point 5 in that case, and point 2 in Burt v. Timmons, 29 W. Va. 441 (2 S. E. 780). But if we suppose that the wife has shown payment out of her separate estate of a fair consideration, is that not logically enough to call for proof of that which is a moral offense, and not presumed against any one—fraud? When she has shown that, lias she not shown good faith, 'prima faciei When the transaction is between husband and wife, it takes appreciably less evidence to establish fraud than between strangers. Livey v. Winton, 80 W. Va. 554 (4 S. E. 451). This case is favorable to the wife, over many past cases in this Court, in the fact that she paid largo sums out of a separate estate; and the case seems fair on its face, without badge of fraud. She had no knowledge of her husband’s insolvency, if we can say he wras insolvent; for though, as it was revealed at his death for the first time to even his wife, he had no substantial estate, yet he had an interest in the large Parkersburg store. He was a man of extensive business. True, his wife admits that he stated to her in August that he needed some money to pay on the Huntington purchase, as he had not realized some he expected; yet that is not uncommon, and she no doubt believed him then solvent. If she knew of embarrassment, it was only of that arising from his Huntington purchases» and this she assumed to pay.
I now reach another feature of the case. Ilarmison had already paid on the property conveyed to his wife thirteen thousand one hundred and eighty six dollars and sixteen cents, and the creditors ask: “Shall his wife be allowed to take the property by paying only the balance of purchase money, only about ten thousand dollars, and we get nothing—get nothing for the large sum which our debtor invested in it? Is this justice to us?” These questions seem grave, and hard to answer at first view, but there are answers. We have shown that so far there is no evidence of fraud in the wife, arising from a knowledge of indebtedness of her husband, either individually or as a partner. If an honest purchaser, she can not be deprived of her defense as such. We cannot say that, though free of fraud, yet the large sum which her husband had paid on the property was a gift, and is liable as a voluntary conveyance, because it is not a voluntary conveyance, as she paid valuable consideration. But it is said the property’s prime cost was twenty two thousand dollars, and she gets it for ten thousand dollars. That makes no difference, unless the price is so grossly inadequate as to warrant the presumption of fraudulent design, and half price has been held not gross. Lallance v. Fisher, 29 W. Va. 512 (2 S. E. 775). The same rule as to disparity between the price paid and the real value does not, it is true, prevail where the contest is between a creditor and an alleged fraudulent alienee, as between a vendor and vendee; but, when fraud is sought to be raised on inadequacy alone, it must be so great as to strike the understanding with the conviction that such a sale never could have been made in good faith. Bump Fraud. Conv. 45. “The court has not been very particular,” said Sir Thomas Plumer, “as to the sufficiency of the consideration, if the contract was bona fide”; that is, where there is no other indication of fraud than inadequacy. 2 Bigelow, Frauds, 500. Where are the other indications in this case? I think however, as a matter of law, that, where the contest is between the wife and creditors of her husband, there is stronger reason to demand fair full consideration than when the conveyance assailed is to a stranger.
Is the sum paid by Mrs. Ilarmison so inadequate as to justify the imputation of fraud? Let us refer to the facts. In August, 1892, Ilarmison’s mind was very seriously affected. lie was on the verge of insanity. He died of paresis June 25, 1893. In such condition of mind, in August, he went to Huntington and Central City, when properly and speculation there were at the flood tide— when the “boom” was prevailing. He had been a man of business, active and zealous in the pursuit of wealth, and he was imbued with the belief that he could there soon make a fortune out of real estate, lie fell in with a real-estate agent who cultivated his mania in this line. lie bought various properties—bought recklessly and improvidently. He was so inspired with the spirit of speculation that he telegraphed his brother-in-law, a bank president of Washington, to come to join in the wealth making. ITe purchased the Florentine Hotel at thirty thousand dollars and gave a check which was not honored; and his brother-in-law, seeing his mental condition, his utter incapacity in his unfortunate mental condition, and his improvidence and recklessness, induced the party who sold him the hotel to cancel the contract. But in other contracts he had already become bound, and had paid large sums on his purchases. A witness says he would have bought the whole of Huntington, if he could have gotten the money. All the while this real-estate agent plied him until he exclaimed, “These real-estate men have set me crazy!” Under their influence, especially7 a particular one, he purchased these properties at inflated, fictitious prices. That autumn prices declined, say some witnesses; and if, that autumn and winter and spring, there was not an actual decline in values of property, it was only because there was no sale for it, which is worse than depreciation, when, as in this case, it was the presage of that terrible panic which laid its weight of stagnation, depression, and disaster on the whole country. All the witnesses say that from early fall of 1892 there was no sale for property in Huntington and Central City. A boom raised there temporally by a few real-estate agents from abroad, burst. All say this was followed from June, 1893, by actual great depreciation, and it continued when the evidence in this case was taken. When would it lift so that the property7 w'ould bring more than Mrs. ITarmison put in it, if we were to take it from her and sell it for creditors? If we were to say that what her husband put in it wars a voluntary7 settlement upon her, and that that sum ought to go to creditors, and, treating her as not guilty of fraud, say that she and her husband having both contributed in the acquisition of the property, they should share ratably in its proceeds, it would not realize the shares of both, by a great deal; but we could not adopt this theory, because she, having lifted prior liens valid against creditors, if free of fraud, would have to be subrogated to them, and given a preference, which, upon the evidence, we may fairly say, would leave nothing for creditors. And to do that, even for creditors, we would have to find her guilty7 of fraudulent intent, and remove her from the position of bona fide purchaser, which I think she is entitled to bo considered, for reasons above stated. There is a difference among numerous witnesses as to the value of the property. Some think Harmison paid only the fair value then. Many think he paid fictitious prices, and that the burden Mrs. Harmison assumed when she took it oft'her husband’s hands was its fair, full value What would it be worth to creditors now? All concur in a great decline. Knowing when it was, through what agency it was bought, the excitement then prevailing, and ITarmison’s aberration and frenzy of mind, it is only safe to say that the sums he paid were entirely unreal values. How much too high, we can but estimate. ’And just here remember that when dealing with a purchaser otherwise not chargeable with fraud than in small consideration, the law does not weigh the price in scales that weigh diamonds, because men differ in opinion in few matters more than values; and it will not convict the purchaser, on this ground, of fraud, unless the consideration be so grossly inadequate as to shock the moral conscience. We cannot say that such is the case here. And just in this connection, when we are inquiring whether Mrs. Harmison is guilty of fraud for having paid too little for her husband’s property, we must not omit a fact in her favor—ttiat she furnished her husband two thousand seven hundred and forty dollars that summer that went on the purchase money, besides the ten thousand dollars which she assumed when she received the conveyance from him. She swears it wont on his purchases. We can not read her evidence of transactions and communications between her and her husband in a contest between lur and her husband’s creditors. Smith v. Turley, 32 W. Va. 14 (9 S. E. 46). But we do not need her evidence to prove that she furnished this money, or that it went into the property; for there is her check in his favor, deposited for collection in the Drovers’ & Mechanics’ National Bank, Baltimore, where he kept his account, and collected by it, dated 26th August, 1892, and there is his check four days after for seven thousand three hundred and sixty nine dollars and eighty two cents to attorneys having charge of the purchase money collection, and, thus the conclusion is fair and reasonable that it went into this purchase. Bo it ought to be added to the ten thousand dollars she assumed when she took the deeds, in ascertaining what she really has paid for the property. She says this two thousand seven hundred and forty dollars was a loan. We could not take her evidence, under the law, to prove it a loan, under the authority just cited, because it is a personal transaction between her and her deceased husband; and as settled by repeated decisions of this and other courts, in a contest between the wife and the husband’s creditors, where it is shown merely that she furnished her husband money, it is presumed to be a gift, not a loan, unless she clearly prove, by note or otherwise, a promise of repayment. Bank v. Atkinson, 32 W. Va. 203 (9 S. E. 175); Zinn v. Law, 32 W. Va. 447 (9 S. E. 871); Bennett v. Bennett, 37 W. Va. 396 (16 S. E. 638); Miller v. Cox, 38 W. Va. 747 (18 S. E. 960). But a competent witness says that when Mrs. Harmison advised with him about taking a deed for the property, while that transaction was going on, she stated that the two thousand seven hundred and forty dollars was a loan, which may be evidence of the loan, as part of the res gestee of the later transaction. But that is not material. We know, outside of her evidence or declarations, that she furnished the money, and that it went on the purchase; and we can credit it to her, in considering whether she is guilty of fraud from inadequacy of consideration. More purchase money became due in early spring, 1893, and Harmison was pressed, and had nothing to pay with; for a few months later he died, utterly destitute of means, real or personal, except the firm store; and an uncertain interest in an estate on which a few hundred dollars lias been realized, which Mrs. Harmison holds ready for creditors. His wife swears that he was greatly worried, and said lie could pay no more, and would have to let the property bo sold, unless she would take it and pay for it, and that after consulting friends, in order to try to save her two thousand seven hundred and forty dollars, she reluctantly concluded to do so, and not because she wished to make money. But we reject her evidence, for reasons stated. We know that purchase money was due; that he almost surely had no money to meet it; that Mrs. Ilarmi-son Consulted a brother-in-law, and hesitated about taking the property, telling him of her husband’s inability to pay, and that she already had two thousand seven hundred and forty dollars of her money in it; and that her brother-in-law advised her to take the property, as the only means of saving that. This evidence of her declarations, evincing her motive and design in taking the property, seems admissible, under the principle of res gestee, as a part of the transaction of these deeds, they having been made while the matter was in progress.
The deed of March 20, 1893, states that its consideration is five dollars and love and affection. It is said this is an estoppel upon the wife from showing other consideration. This is not law. The consideration may be shown. Casto v. Fry, 33 W. Va. 449 (10 S. E. 799). But there c an not be anything in this, when this very deed shows that to be only a formal statement of the draftsman, as it provides that Mrs. Harmison shall pay the incumbrances. Rogers v. Verlander, 30 W. Va. 619 (5 S. E. 847) is relied on by appel-lees. It holds that if a person largely indebted, owning no personalty, gives away more than two-thirds of his realty, leaving a balance estimated to bo worth very little more than his debts, thus imposing on creditors the risk of losing a portion of their debts, the transfer is one with fraudulent intent, as to existing creditors, and therefore also fraudulent as to subsequent ones. But that was a voluntary conveyance from son-in-law to mother-in-law, and no evidence to show that the alleged debt to her, constituting the consideration, ever liad existence, or that any valuable consideration was paid; while here, saying nothing of the two thousand, seven hundred and forty dollars, the wife assumed a debt of nearly ten thousand dollars—paid the fair value.
In Rogers v. Verlander, by a deed purely voluntary', between close relatives, the grantor removed from existing creditors a materia] part of his estate; while in this case Harmison owed no individual debts, and he did not know, and certainly Mrs. Harmison is not shown to have known, of debts yet unpaid of the firm, and swears she did not. I will add that I do not impugn Rogers v. Verlander, on its facts. Judge Lucas, in Greer v. O’Brien, 36 W. Va. 277 (15 S. E. 74) discusses in a lucid manner how far a voluntary conveyance goes to show actual fraudulent intent; holding very properly, accordantly with the very letter of our statute, that because a deed is voluntary, and therefore merely in law void as to existing creditors, it is not from that fact alone fraudulent in fact as to subsequent creditors, without other circumstances in someway shown, which, added to the force of the voluntary conveyance, show the presence of fraud in fact; and he calls attention to the fact that the language of point 4 in Rogers v. Verlander seems inconsistent with the true rule, and he qualifies it, I may say, as a statement of a general rule, by saying that, as applied to the particular facts, it was correct, as I say also.
Mrs. Harmison’s conveyance was not a voluntary conveyance, but cost her ton thousand dollars, besides the two thousand, seven hundred and forty dollars. She left no individual debt of her husband unpaid. The firm was not then largely indebted, so far as we know—a large part of the indebtedness accruing later. She then knew of no firm indebtedness, unless it bo the five thousand dollar note. We do not know whether it was a firm or individual debt, and if we can say that she knew of it when she took the conveyance, it is because—only because—she indorsed it and thus provided for it. We see no act of corruption in the wife, unless we infer it from unpaid indebtedness, unknown to her, and from the fact of the conveyance to her; forgetting wdjat she had paid in the two thousand, seven hundred and forty dollars and the ten thousand dollars further burden she assumed. We see her assuming the five thousand dollar debt, assuming later the four thousand dollar debt of the firm, at Hill’s solicitation, when her husband was dead, with no knowledge yet that further liability rested on the firm, though, if she then first knew, it was too late to impeach the conveyances. We see her letting her husband have two thousand, seven hundred and forty dollars, too, on this property, and then assuming ten thousand dollars more; and for conduct which I interpret as evincive of honesty, and of a desire to do more than was incumbent on her, even as a wife, to save the good name and credit of her husband, and relieve him of worry and distress when his mind was in danger of collapse, we are asked to brand her with sedate and deliberate fraud. There are no badges of fraud sufficient to do this. The case is too weak, in the face of her payment out of a separate estate, fully shown, which no one questions, of so much money, payment shown by deeds, checks, and evidence, so that their payment, or the source of payment, is not questioned. It still remains the law that fraud in fact is not imputed or presumed, and must bo proven, and that by the party asserting it. Greer v. O'Brien, 36 W. Va. 277 (15 S. E. 74). The scales must be made to preponderate clearly against the party charged. Mere suspicion will not do. Greer v. O'Brien, supra; Harden v. Wagner, 22 W. Va. 356, point 9. The decisions on fraudulent conveyances are very numerous and varied, often apparently conflicting. General rules can not be universally applied. Each case turns mostly on its own facts and hue. They control the application of the principles found in the decisions.
Something is Said, but not urged, as to the mental condition of Harmison when he made these transfers. It is clear that he was in bad mental condition when making purchases at Huntington, and he had an attack that fall, but took a long vacation in a trip to the West, came back greatly improved, and is proven by his attending physician and other evidence to have been competent at the date of those deeds, though not in good health. So I think it can not be predicated that owing to his condition, his wife made easy prey of him. The evidence shows she took the deeds reluctantly. She says under oath she did, and, unless I mistake the cast of the case, it will turn out a very doubtful step for her, in a pecuniary way. She has yet received nothing in return, and one can see, from her long deposition, that she wishes she were out of it, and had her money back.
The counsel for appellees, without expressly cross assigning it as error, argues that that feature of the decree absolving Mrs. Harmison of personal liability, as if a partner after her husband’s death, is erroneous. The chief ground for this is that, after her husband’s death, Hill, the surviving partner, put out handbillsuf a sacrifice sale of the goods, saying in it, “This, remember, is no advertising dodge, but a sale by order of the administrator of F. J. Harmisou, deceased, to close up the business.” She was foreign administratrix and legatee. Had she not a right, under the law, to demand that the partnership be closed up? The law required her to do so. From this she is to be made a partner. To the reverse, her order to close up the business shows that she did not inteud to coutinue the business, and shows that any further transaction was one of the old firm in closing out. Another ground relied on to bind her as a partner is that on cross-examination she said she left the closing up to Hill, and did not know what steps he took; that Hill had said to her that he was not buying any goods, only a few samples, such as calicoes and mus-lins, in order to help close out the stock, and, when asked if she was willing for this,she said yes. This in truth intimates that she had signified to him a wish that he should not buy much. Is it to be said that, just because she did not protest against buying a few articles necessary to close out the stock, she became a partner ? I think not. Nobody credited these small items on the faith that she was a partner, and several of these creditors, on oath, say they did not do so on that faith, but on the faith of the old firm. The evidence is wholly insufficient to charge her personally, and the circuit court properly so decided.
We reverse the decree, and dismiss the bill and petitions of creditors, so far as they seek to render Mrs. Ilarinison personally liable for the debts of Ilarinison & Hill, and so far as they seek to avoid said two deeds from Harmisou to his wife, and to render the realty therein conveyed liable for said debts, and deny the relief so asked; leaving to the plaintiffs and petitioning creditors the right, if they wish, to further prosecute the suit to administer the personal estate of Harmisou and Hill for their benefit. | [
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MILLER, Chief Justice:
This certified question from the Circuit Court of Nicholas County asks whether W.Va.Code, 55-2-6a, which bars the filing of a suit for design or construction defects against architects, builders, and others ten years after the construction project is complete, violates the constitutional guarantees of substantive due process, equal protection, and access to the courts. We find this statute to be constitutional.
I.
FACTS
On December 8, 1987, the plaintiffs, Janet L. Gibson and Carol L. Holcomb, were injured when the vehicle they were riding in collided with a truck at an intersection known as the Irish Corner on U.S. Route 19 in Summersville, West Virginia. The plaintiffs sued, among others, the West Virginia Department of Highways (DOH), claiming that the highway was extremely hazardous at this intersection because of improper construction. The DOH filed a motion for summary judgment because the suit was filed more than ten years after the highway was completed; thus, it was barred by W.Va.Code, 55-2-6a.
II.
STATUTES OF REPOSE
Briefly summarized, W.Va.Code, 55-2-6a, limits the time period in which a suit may be filed for deficiencies in the planning, design, or supervision of construction of an improvement to real property to ten years. This period commences on the date the improvement is occupied or accepted by the owner of the real property, whichever occurs first.
The time period operates independently of when the injury actually occurs. Some courts refer to this type of statute as one of repose, as distinguished from a statute of limitations. A statute of limitations ordinarily begins to run on the date of the injury; whereas, under a statute of repose, a cause of action is foreclosed after a stated time period regardless of when the injury occurred. The Virginia Supreme Court explained the difference between the two types of statutes in Hess v. Snyder Hunt Corp., 240 Va. 49, 52, 392 S.E.2d 817, 819 (1990):
“A ‘statute of repose’ differs from a ‘statute of limitations.’ Generally, the time limitation in the latter begins to run when the cause of action accrues. The time limitation in a statute of repose, however, ‘begins to run from the occurrence of an event unrelated to the accrual of a cause of action.’ School Bd. of the City of Norfolk v. U.S. Gypsum, 234 Va. 32, 37, 360 S.E.2d 325, 327 (1987). Furthermore, the expiration of the time extinguishes ‘not only the legal remedy but also all causes of action, including those which may later accrue as well as those already accrued.’ Id. at 37, 360 S.E.2d at 327-28.”
See also Turner Constr. Co. v. Scales, 752 P.2d 467 (Alaska 1988).
Recently, in Shirkey v. Mackey, 184 W.Va. 157, 399 S.E.2d 868 (1990), we discussed whether the time period in W.Va. Code, 55-2-6a, was tolled until the construction defect was discovered. There, the plaintiffs’ home sustained severe damage to its foundation because improper fill material had been used. The Shirkeys did not discover the construction defect until twelve years after the house was built. We determined that the discovery rule did not toll the statutory time period because the provision had a substantive quality in that it applied “regardless of the date of injury” 184 W.Va. at 159, 399 S.E.2d at 870.
III.
DUE PROCESS AND EQUAL PROTECTION
The plaintiffs contend that W.Va. Code, 55-2-6a, is unconstitutional because it violates both substantive due process and equal protection guarantees. We begin by recognizing that where a statute solely affects economic rights, we accord considerable deference to the legislative enactment. We applied this principle in Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., 174 W.Va. 538, 328 S.E.2d 144 (1984). Hartsock-Flesher alleged that Wheeling Wholesale was selling cigarettes below cost, in violation of W.Va.Code, 47-11A-2. Wheeling Wholesale moved to dismiss the case claiming that the Unfair Trade Practices Act, W.Va.Code, 47-11A-1, et seq., violated substantive due process and equal protection principles.
Initially, we reviewed the history of substantive due process and narrowed the holding in our leading case of State v. Wender, 149 W.Va. 413, 141 S.E.2d 359 (1965). We indicated that despite its discretionary language, the Wender court failed to understand that in matters of economic legislation, the legislature must be accorded considerable deference under a due process standard. This statute involves a procedural bar as to a civil action to collect damages for personal injuries. The fact that there is court involvement does not alter the economic basis underlying the right to sue.
A similar deference is given to statutes affecting economic rights under an equal protection analysis. As we explained in Syllabus Point 4 of Hartsock-Flesher:
“ ‘Where economic rights are concerned, we look to see whether the classification is a rational one based on social, economic, historic or geographic factors, whether it bears a reasonable relationship to a proper governmental purpose, and whether all persons within the class are treated equally. Where such classification is rational and bears the requisite reasonable relationship, the statute does not violate Section 39 of Article VI of the West Virginia Constitution.’ Syllabus Point 7, Atchinson v. Erwin, 172 W.Va. 8, 302 S.E.2d 78 (1983).”
The reference in Syllabus Point 4 of Hartsock-Flesher to the equal protection clause stated to have been found in Article VI, Section 39 of the West Virginia Constitution has since been clarified. In Israel v. West Virginia Secondary Schools Activities Commission, 182 W.Va. 454, 460, 388 S.E.2d 480, 486 (1989), we acknowledged that the precise “phrase ‘equal protection’ is not found in our constitution, [although] its principles are an integral part of our constitutional law.” (Citations omitted). Moreover, we admitted that our cases “have not been uniform as to where [the equal protection] principle reposes in our constitution.” 182 W.Va. at 460, 388 S.E.2d at 486. We also observed that the same problem exists in the United States Constitution because the words “equal protection” appear only in the Fourteenth Amendment, which applies exclusively to the states. Despite this omission, the United States Supreme Court “has traditionally found that the concept of equal protection is embodied in the Due Process Clause of the Fifth Amendment.” 182 W.Va. at 460, 388 S.E.2d at 486. Thus, “to finally settle where our state’s constitutional equal protection principle is located, we hold that it is a part of our Due Process Clause found in Article III, Section 10 of the West Virginia Constitution[.]” 182 W.Va. at 461, 888 S.E.2d at 487. (Footnote omitted).
In light of our holding in Israel, we now modify Syllabus Point 4 of Hartsock-Flesher and Syllabus Point 7 of Atchinson to remove the reference to Article VI, Section 39 of our Constitution and substitute Article III, Section 10:
“ ‘Where economic rights are concerned, we look to see whether the classification is a rational one based on social, economic, historic or geographic factors, whether it bears a reasonable relationship to a proper governmental purpose, and whether all persons within the class are treated equally. Where such classification is rational and bears the requisite reasonable relationship, the statute does not violate Section 10 of Article III of the West Virginia Constitution, which is our equal protection clause.’ Syllabus Point 7, [as modified,] Atchinson v. Erwin, [172] W.Va. [8], 302 S.E.2d 78 (1983).” Syllabus Point 4, as modified, Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., supra.
Our standards for substantive due process and equal protection analyses are similar to those used in other states. In those jurisdictions whose legislatures have enacted architect and builder statutes of repose similar to ours, a majority of courts have upheld the enactments when they have been challenged on substantive due process or equal protection grounds. Even those jurisdictions that have found a statute of repose unconstitutional have concluded that there are no suspect classes or fundamental rights involved. Consequently, a strict scrutiny test for equal protection analysis is unnecessary. These courts have found a statute of repose unconstitu tional because the protected class selected, i.e., builders and architects, was too exclusive. As a result, there was no rational basis for not affording the same protection to suppliers of material used in the construction or owners or tenants of the real property.
These courts have failed to recognize that under the rational basis test, the determination of the group or class to be protected by the statute is peculiarly a legislative judgment. The Supreme Court expressed this point in Schweiker v. Wilson, 450 U.S. 221, 234, 101 S.Ct. 1074, 1083, 67 L.Ed.2d 186, 198 (1981), quoting Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520, 525 (1976):
“ ‘This inquiry employs a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classification is neither possible nor necessary.’ ” (Citation omitted).
United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980). See also Village of Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S.Ct. 1536, 1542, 39 L.Ed.2d 797, 803-04 (1974) (“But every line drawn by a legislature leaves some out that might well have been included. That exercise of discretion, however, is a legislative, not a judicial, function.”).
The purpose of this type of statute of repose is to protect architects and builders from the increased exposure to liability as a result of the demise of the privity of contract defense. See, e.g., Cheswold Vol. Fire Co. v. Lambertson Constr. Co., 489 A.2d 413 (Del.1984); Klein v. Catalano, 386 Mass. 701, 437 N.E.2d 514 (1982); Walsh v. Gowing, 494 A.2d 543 (R.I.1985); Comment, Limitation on Action Statutes for Architects and Builders — Blueprints for Non-Action, 18 Cath.U.L.Rev. 361 (1969). Without a statute of repose, a party injured because of a latent design or defect could sue an architect or builder many years after a construction project was completed. This could result in stale claims with a distinct possibility of loss of relevant evidence and witnesses. See Zapata v. Burns, 207 Conn. 496, 542 A.2d 700 (1988); Cheswold Vol. Fire Co. v. Lambertson Constr. Co., supra; Klein v. Catalano, supra.
Because architects and builders were the ones primarily exposed to increased liability when privity of contract was abolished, we cannot fault our legislature for protecting this group. Furthermore, our statute is not so narrowly drawn as some in other jurisdictions. W.Va.Code, 55-2-6a, has a ten-year limitation and bars recovery in three general areas. The first relates to damages “for any deficiency in the planning, design, surveying, observation or supervision of any construction[.]” The second involves damages arising from “the actual construction of any improvement to real property[.]” The third area is “for an injury to a person or for bodily injury or wrongful death arising out of the defective or unsafe condition of any improvement to real property[.]”
In analyzing a statute of repose, consideration must be given to the time period after which the cause of action is barred. Obviously, this time period must bear some rational relationship to the goal sought to be achieved by the statute. We addressed a similar concern in O’Neil v. City of Parkersburg, 160 W.Va. 694, 237 S.E.2d 504 (1977), where we struck down W.Va.Code, 8-12-20 (1969) on both equal protection and due process grounds. This statute provided that a plaintiff had to give written notice to a municipality within thirty days after he was injured because of the negligence of municipality employees, otherwise his suit was barred. We held that such an abrupt notice period was unconstitutional.
In addressing this concern, several courts have considered evidence from a study presented at congressional hearings. This study analyzed a group of cases to determine how long after a construction project was completed that a suit was filed against architects and builders. The cases were from jurisdictions without a statute of repose. The study revealed that 93 percent of claims brought against architects or builders for design defects were brought within six years of the project’s completion and 99.6 percent were filed within ten years. We conclude that the ten-year period in W.Va.Code, 55-2-6a, strikes a reasonable and rational balance between the rights of an injured plaintiff and the need to fix some outer time limit on liability for those engaged in designing and constructing improvements to real property.
IV.
RIGHT OF CERTAIN REMEDY UNDER ARTICLE III, SECTION 17 OF THE WEST VIRGINIA CONSTITUTION
The certain remedy provision is one of three rights contained in Article III, Section 17. The first right provides that the “courts of this State shall be open[.]” For convenience, we term this the “open-court” provision. The second right is embodied in the language “every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law[.]” For simplicity, we term this the “certain remedy” provision. The third right is that “justice shall be administered without sale, denial or delay.”
Although we have previously explored both the open-court provision and the sale of justice provision, we have not addressed the history of the certain remedy provision in Article III, Section 17. It is similar to provisions contained in a number of other state constitutions. Commentators have traced the origin of this provision to Chapter 40 of the Magna Charta of 1215. Despite this provision’s ancient origins, little analysis has been made of either its scope or its fundamental purpose. It does appear that the certain remedy provision of the Magna Charta had almost no impact on the English court system as a limitation on Parliament’s power to legislate. Despite its minimal impact in England, the certain remedy provisions of state constitutions have been used as a basis to challenge statutes of repose in state courts.
Several theories have evolved. One approach finds that the certain remedy provision applies only to vested rights. Under this theory, a statute of repose only bars suits filed a stated number of years after an event. While this period is open, there is a right to sue. Once the statutory period has expired there is no vested right to sue because the right to sue has been extinguished by the enactment of the statute of repose. Consequently, as to injuries arising after the period of repose, there is no vested right. One of the leading cases on the “vested rights” theory is Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 279-80, 382 A.2d 715, 720 (1978), where the Pennsylvania Supreme Court stated:
“In interpreting this constitutional provision, we should remember that no one ‘has a vested right in the continued existence of an immutable body of negligence law_ [T]he practical result of a [contrary] conclusion would be the stagnation of the law in the face of changing societal conditions.’ Singer v. Sheppard, 464 Pa. 387, 399, 346 A.2d 897, 903 (1975)[.]”
In Lamb v. Wedgewood South Corp., 308 N.C. 419, 444, 302 S.E.2d 868, 882 (1983), the North Carolina Supreme Court adopted the vested rights approach and held that “since plaintiff’s cause of action had not accrued at the time this legislation was passed, no vested right is involved.” The court also found that its certain remedy provision gave the legislature authority to define the scope of the remedy.
Another interpretation of this provision acknowledges that the legislature has the right to alter or abolish a common law right of action. Courts adhering to this view decline to use their state certain remedy provision to find statutes unconstitutional. As explained in Olsen v. J.A. Freeman Co., 117 Idaho 706, 717, 791 P.2d 1285, 1296 (1990): “It is well established that the ‘open courts’ provision governing access to courts of justice does not prohibit the legislature from abolishing or modifying a common law right of action.” (Citations omitted). See also Klein v. Catalano, supra.
Several other courts recognize that the legislature can place reasonable limits on the parties’ rights to have their claims adjudicated in the courts. These courts, however, hold that since a statute of repose bars access to the courts after the specified period as to a cause of action arising after the limiting period, it violates their certain remedy provision. For example, in Kennedy v. Cumberland Engineering Co., Inc., 471 A.2d 195, 198 (R.I.1984), the court found a ten-year statute of repose on products liability actions unconstitutional:
“The total denial of access to the courts for adjudication of a claim even before it arises, however, most certainly ‘flies in the face of the constitutional command found in art. 1, § 5,’ Lemoine v. Martineau, 115 R.I. [233,] 240, 342 A.2d [616,] 621 [ (1975) ], and to hold otherwise would be to render this constitutional protection worthless. To prohibit court access absolutely for a generally recognized claim to a class of plaintiffs merely because they were injured by a product more than ten years old not only is irrational, in our opinion, but also flies in the face of even minimal constitutional protection mandated by art. I, sec. 5.”
See also Overland Constr. Co., Inc. v. Sirmons, 369 So.2d 572 (1979); Health v. Sears, Roebuck & Co., 123 N.H. 512, 464 A.2d 288 (1983).
Finally, some courts, while recognizing the latitude of the legislature to enact legislation altering the common law, have held that the abolition or substantial impairment of an existing remedy may violate the state’s certain remedy provision. However, if the legislation is designed to eliminate a clear social or economic evil and the elimination of the existing remedy is not an arbitrary means of achieving that goal, the statute will be found constitutional. This test was expressed in Horton v. Goldminer’s Daughter, 785 P.2d 1087, 1093 (Utah 1989), quoting Berry v. Beech Aircraft Corp., 717 P.2d 670, 680 (Utah 1985):
“In Berry, we rejected those approaches also and held that it would be an inexcusable enfeeblement of an express constitutional right to allow the abolition of an existing remedy necessary to secure an important constitutional right without providing an injured person ‘an effective and reasonable alternative remedy,’ unless there is ‘a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable means of achieving the objective.’ ”
The Supreme Court of Alabama uses a similar test, but begins its analysis with a presumption that the statute is unconstitutional if it abolishes or alters a common law cause of action. This formulation was explained in Lankford v. Sullivan, Long & Hagerty, 416 So.2d 996, 1000 (Ala.1982), which quoted from a concurring opinion in Fireman’s Fund American Insurance Co. v. Coleman, 394 So.2d 334, 352 (Ala.1980):
“ ‘Legislation which abolishes or alters a common-law cause of action, then, or its enforcement through legal process, is automatically suspect under § 13. It is not, however, automatically invalid. Grantham, [v. Denke, 359 So.2d 785 (Ala.1978)], itself restates the established rule that such legislation will survive constitutional scrutiny if one of two conditions is satisfied:
“1. The right is voluntarily relinquished by its possessor in exchange for equivalent benefits or protection, or
“2. The legislation eradicates or ameliorates a perceived social evil and is thus a valid exercise of the police power.’ ”
(Emphasis in original).
Finally, one state court, Arizona, has concluded that the rights afforded in the state constitutional provisions involve fundamental rights. For example, Arizona has a constitutional provision which it deemed more specific and stronger than most certain remedy provisions. Another constitutional provision mentioned makes the “defense of contributory negligence or assumption of risk ..., in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.” Based on these provisions, the Supreme Court of Arizona in Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984), found that a three-year statute of repose on medical malpractice claims would be analyzed on a strict scrutiny standard.
This survey provides a backdrop to analyze the certain remedy provision found in Article III, Section 17 of our Constitution. Our only case which mentions the certain remedy provision is Wallace v. Wallace, 155 W.Va. 569, 184 S.E.2d 327 (1971), overruled on other grounds, Belcher v. Goins, 184 W.Va. 395, 400 S.E.2d 830 (1990), where we upheld the right of the legislature to enact W.Va.Code, 56-3-2a, the statute abolishing the common law cause of action of breach of promise to marry and alienation of affections. After mentioning Article III, Section 17, we pointed out that there was no provision in our constitution that “guarantees the existence of [these] common law cause[s] of action[.]” 155 W.Va. at 579, 184 S.E.2d at 333.
In Wallace, we also referred to Article VIII, Section 13, which provides: “Except as otherwise provided in this article, such parts of the common law, and of the laws of this State as are in force on the effective date of this article and are not repugnant thereto, shall be and continue the law of this State until altered or repealed by the legislature.” We concluded by citing several cases where we recognized the right of the legislature to alter the common law and to act in an almost plenary fashion, so long as it did not violate the constitution. E.g., State v. Farmers Coal Co., 130 W.Va. 1, 43 S.E.2d 625 (1947); State Road Comm’n v. Kanawha County Court, 112 W.Va. 98, 163 S.E. 815 (1932).
We decline to hold that the certain remedy provision in Article III, Section 17 of our Constitution has no meaning when it comes to legislative enactments. We begin with the premise that there is a presumption of constitutionality with regard to legislation. However, when a legislative enactment either substantially impairs vested rights or severely limits existing procedural remedies permitting court adjudication of cases, then the certain remedy provision of Article III, Section 17 is implicated.
The term “vested right,” as used in the certain remedy provision, means that an actual cause of action which was substantially affected existed at the time of the legislative enactment. The United States Supreme Court has acknowledged that an accrued cause of action is a vested property right and is protected by the guarantee of due process. See Gibbes v. Zimmerman, 290 U.S. 326, 54 S.Ct. 140, 78 L.Ed. 342 (1933). On the other hand, where the cause of action has not yet accrued, the Supreme Court has held that due process principles do not prevent the creation of new causes of action or the abolition of old ones to attain proper legislative objects. See Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929). See also Burmaster v. Gravity Drainage Dist. No. 2, 366 So.2d 1381 (La.1978); Lamb v. Wedgewood, supra. Here, the cause of action had not accrued and, therefore, was not vested at the time the statute of repose limitation period ended.
The second inquiry is whether the enactment severely limits existing procedural rights. As earlier noted, a statute of repose does alter the traditional concept of a tort statute of limitations which begins to run when the injury occurs. In determining whether there has been a severe limitation, the inquiry is directed at the reasonableness of the time period imposed by the statute of repose, in this case ten years. We follow much the same analysis that we made in the equal protection and due process discussion. The determination is whether there is a rational basis for the period imposed. We found this to have been met because the ten-year period seemed a reasonable term in view of an empirical study showing most case filings had occurred within this period. Consideration was also given to the fact that the longer the period, the more danger of loss of relevant evidence regarding the initial construction.
Consequently, we conclude that W.Va. Code, 55-2-6a, does not violate the certain remedy provision of Article III, Section 17. For all of the foregoing reasons, we answer the certified question in the negative, and find that W.Va.Code, 55-2-6a, is not unconstitutional.
The certified question having been answered, this case is ordered dismissed from the docket.
Certified question answered and dismissed.
. This certification is made pursuant to W.Va. Code, 58-5-2 (1967).
. The certified question provides: "Does W.Va. Code 55-2-6a containing the ten year Statute of Limitations apply to this civil action, or is said Code section unconstitutional?”
. The plaintiffs also sued both drivers and the company which owned the truck. Since this action was filed, the plaintiffs have settled their claims against these three defendants.
. The highway was completed in June of 1975 and accepted by the DOH on July 21, 1975.
. W.Va.Code, 55-2-6a, provides:
“No action, whether in contract or in tort, for indemnity or otherwise, nor any action for contribution or indemnity to recover damages for any deficiency in the planning, design, surveying, observation or supervision of any construction or the actual construction of any improvement to real property, or, to recover damages for any injury to real or per sonal property, or, for an injury to a person or for bodily injury or wrongful death arising out of the defective or unsafe condition of any improvement to real property, may be brought more than ten years after the performance or furnishing of such services or construction: Provided, that the above period shall be tolled according to the provisions of section twenty-one [§ 55-2-21] of this article. The period of limitation provided in this section shall not commence until the improvement to the real property in question has been occupied or accepted by the owner of real property, whichever occurs first.”
The DOH did not raise the defense of governmental immunity because the plaintiffs’ suit sought recovery solely against the State’s insurance carrier; thus, the constitutional bar to suits against the State did not apply. W.Va. Const. VI, § 35. See Pittsburgh Elevator Co. v. West Virginia Bd. of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983).
. In Stevens v. Saunders, 159 W.Va. 179, 220 S.E.2d 887 (1975), we used the term "statute of repose” when referring to our statute of limitations for personal injuries. One of the main purposes of a statute of limitations is to require the filing of suits within the time stated, and, in this regard, a statute of limitations does put an end, or repose, to litigation. However, a true statute of repose operates independently from the date the cause of action arises.
. In Syllabus Point 1 of Wender, we held:
“The legislature is vested with a wide discretion in determining what the public interest requires, the wisdom of which may not be inquired into by the courts; however, to satisfy the requirements of due process of law, legislative acts must bear a reasonable relationship to a proper legislative purpose and be neither arbitrary nor discriminatory.”
. Our analysis under substantive due process and equal protection principles is identical to that used by the United States Supreme Court. See, e.g., Rice v. Norman Williams Co., 458 U.S. 654, 665, 102 S.Ct. 3294, 3302, 73 L.Ed.2d 1042, 1053 (1982) ("There can be little doubt but that the designation statute is rationally related to the statute’s legitimate purposes.”); Usery v. Turner Elkhom Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752, 766 (1976) ("[L]egislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and ... the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.”).
. In note 13 of Israel, 182 W.Va. at 460, 388 S.E.2d at 486, we listed several cases where we have identified different constitutional provisions as embodying the concept of equal protection:
"Robertson v. Goldman, [179 W.Va. 453, 369 S.E.2d 888 (1988) ] (art. IIIl, § 10, due process clause); State v. Memorial Gardens Dev. Corp., 143 W.Va. 182, 101 S.E.2d 425 (1957) (art. III, § 10, due process clause); State ex rel. Longanacre v. Crabtree, [177 W.Va. 132, 350 S.E.2d 760 (1986) ] (art. VI, § 39, special laws prohibited); Peters v. Narick, [165 W.Va. 622, 270 S.E.2d 760 (1980)] (art. III, § 17, right to equal protection is guaranteed); Linger v. Jennings, [143 W.Va. 57, 99 S.E.2d 740 (1957) ] (art. Ill, § 17, denial of justice and open courts).”
.In Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), the respondents argued that because the Fifth Amendment did not have an "equal protection” clause, segregation was permissible in the public schools of the District of Columbia. The United States Supreme Court rejected this argument, finding that "the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive." 347 U.S. at 499, 74 S.Ct. at 694, 98 L.Ed. at 886. Since Bolling was decided, the United State Supreme Court’s "approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.” Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228 n. 2, 43 L.Ed.2d 514, 519 n. 2 (1975). (Citations omitted).
. Article III, Section 10 of the West Virginia Constitution provides: "No person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers.”
. See Cournoyer v. Massachusetts Bay Transp. Auth., 744 F.2d 208 (1st Cir.1984); Hartford Fire Ins. Co. v. Lawrence, Dykes, Goodenberger, Bower & Clancy, 740 F.2d 1362 (6th Cir.1984); Adair v. Koppers Co., 541 F.Supp. 1120 (N.D.Ohio 1982), aff'd, 741 F.2d 111 (6th Cir.1984); Cudahy Co. v. Ragnar Benson, Inc., 514 F.Supp. 1212 (D.Colo.1981); President & Directors of Georgetown Coll. v. Madden, 505 F.Supp. 557 (D.Md.1980), aff'd in part, dismissed in part, 660 F.2d 91 (4th Cir.1981); Smith v. Allen-Bradley Co., 371 F.Supp. 698 (W.D.Va.1974); Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970), appeal dismissed, 401 U.S. 901, 27 L.Ed.2d 800, 91 S.Ct. 868 (1971); Bamhouse v. City of Pinole, 133 Cal.App.3d 171, 183 Cal.Rptr. 881 (1982); Yarbro v. Hilton Hotels Corp., 655 P.2d 822 (Colo. 1982); Cheswold Vol. Fire Co. v. Lambertson Constr. Co., 462 A.2d 416 (Del.Super.1983), aff’d, 489 A.2d 413 (Del.1984); Mullis v. Southern Co. Servs., Inc., 250 Ga. 90, 296 S.E.2d 579 (1982); Twin Falls Clinic & Hasp. Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982); Matayka v. Melia, 119 Ill.App.3d 221, 74 Ill.Dec. 851, 456 N.E.2d 353 (1983); Beecher v. White, 447 N.E.2d 622 (Ind.App.1983); Burmaster v. Gravity Drainage Dist. No. 2, 366 So.2d 1381 (La.1978); Whiting-Turning Contracting Co. v. Coupard, 304 Md. 340, 499 A.2d 178 (1985); Klein v. Catalano, 386 Mass. 701, 437 N.E.2d 514 (1982); O’Brien v. Hazelet & Erdal, 410 Mich. 1, 299 N.W.2d 336 (1980); Calder v. City of Crystal, 318 N.W.2d 838 (Minn.1982); Reeves v. Ille Elec. Co., 170 Mont. 104, 551 P.2d 647 (1976); Rosenberg v. Town of North Bergen, 61 N.J. 190, 293 A.2d 662 (1972); Howell v. Burk, 90 N.M. 688, 568 P.2d 214 (App.), cert. denied, 91 N.M. 3, 569 P.2d 413 (1977); Lamb v. Wedgewood South Corp., 308 N.C. 419, 302 S.E.2d 868 (1983); Freezer Storage, Inc. v. Armstrong Cork Co., 234 Pa.Super. 441, 341 A.2d 184 (1975); Leeper v. Hillier Group, Architects Planners, P.A., 543 A.2d 258 (R.I.1988); Harmon v. Angus Jessup Assocs., Inc., 619 S.W.2d 522 (Tenn.1981); Sowders v. M.W. Kellogg Co., 663 S.W.2d 644 (Tex.App.1984); Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co., 81 Wash.2d 528, 503 P.2d 108 (1972).
. See, e.g., Turner Constr. Co. v. Scales, supra; Henderson Clay Prods., Inc. v. Edgar Wood & Assocs., Inc., 122 N.H. 800, 451 A.2d 174 (1982); Broome v. Truluck, 270 S.C. 227, 241 S.E.2d 739 (1978); Funk v. Wollin Silo & Equip., Inc., 148 Wis.2d 59, 435 N.W.2d 244 (1989).
. Syllabus Point 1 of O’Neil states:
"A legislative act which arbitrarily establishes diverse treatment for the members of a natural class results in invidious discrimination and where such treatment or classification bears no reasonable relationship to the purpose of the act, such act violates the equal protection and due process clauses of our federal and state constitutions."
In State ex rel. S.M.B. v. D.A.P., 168 W.Va. 455, 284 S.E.2d 912 (1981), we found W.Va.Code, 48-7-1 (1969), which provided for a three-year statute of limitations for bringing a paternity action, unconstitutional. Statutes whose classifications are premised on legitimacy or illegitimacy must be substantially related to an important government objective. See Shelby J.S. v. George L.H., 181 W.Va. 154, 381 S.E.2d 269 (1989).
. See Hearings on H.R. 6527, H.R. 6678, and H.R. 11544 before Subcommittee No. 1 of the House Committee on the District of Columbia, 90th Cong., 1st Sess. 34 (1967). See, e.g., Klein v. Catalano, supra.
. This information is tabulated in Comment, Limitation of Action Statutes for Architects and Builders — Blueprints for Non-Action, 18 Catholic U. of Amer.L.Rev. at 367.
. Article III, Section 17 provides: "The courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay.”
. We discussed the open-court provision at length in State ex rel. Herald Mail Co. v. Hamilton, 165 W.Va. 103, 267 S.E.2d 544 (1980), and observed that this provision is common in other state constitutions. Its primary purpose is to permit the public to attend both civil and criminal trials:
"The uniform interpretation of the mandate that the courts 'shall be open’ by those state courts called upon to construe the provision in their constitutions is that this language confers an independent right on the public to attend civil and criminal trials, and not simply a right in favor of the litigants to demand a public proceeding.” 165 W.Va. at 110, 267 S.E.2d at 548. (Citations omitted).
. In State ex rel. Shrewsbury v. Poteet, 157 W.Va. 540, 202 S.E.2d 628 (1974), we held that a statute allowing a justice of the peace to charge a $5.00 fee for each civil case was the sale of justice in violation of Article III, Section 17.
. In footnote 1 of Note, Constitutional Guarantees of A Certain Remedy, 49 Iowa L.Rev. 1202 (1964), these states are listed:
"Okla. Const. art. 2, § 6. See Ala. Const. art. 1, § 13; Ark. Const. art. 2, § 13; Colo. Const. art. 2, § 6; Conn. Const. art. 1, § 12; Del. Const. art. 1, § 9; Fla. Const., Declaration of Rights § 4; Idaho Const. art. 1, § 18; Ill. Const. art. 2, § 19; Ind. Const. art. 1, § 12; Kan. Const., Bill of Rights § 18; Ky. Const. § 14; La. Const. art. 1, § 6; Me. Const. art. 1, § 19; Md. Const., Declaration of Rights art. 19; Mass. Const. pt. 1, art. 11; Minn. Const. art. 1, § 8; Miss. Const. art. 3, § 24; Mo. Const. art. 1, § 14; Mont. Const. art. 3, § 6; Neb. Const. art. 1, § 13; N.H. Const. pt. 1, art. 14; N.C. Const. art. 1, § 35; N.D. Const. art. 1, § 22; Ohio Const. art. 1, § 16; Ore. Const. art. 1, § 10; Pa. Const. art. 1, § 11; R.I. Const. art. 1, § 5; S.C. Const. art. 1, § 15; S.D. Const. art. 6, § 20; Tenn. Const. art. 1, § 17; Tex. Const. art. 1, § 13; Utah Const. art. 1, § 11; Vt. Const. ch. 1, art. 4; W.Va. Const. art. 3, § 17; Wis. Const. art. 1, § 9; Wyo. Const. art. 1, § 8."
. In Comment, Section 13: Constitutional Armor for the Common Law, 35 Ala.L.Rev. 127, 128 (1984), the following statement was made:
"So-called ‘certain-remedy’ provisions, such as that found in section 13, have their origin in the Magna Charta. In Chapter 40 of the 1215 document, King John promised that '[w]e will sell to no man, we will not deny or defer to any man either justice or right.’ Sir Edward Coke concluded that these words meant that ‘every subject of this realme, for injury done to him ... may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay.’ The similarity between Coke’s language and section 13 is obvious; in fact, it has been suggested that Coke is more directly responsible for the certain-remedy language in provisions such as section 13 than the text of the Magna Charta itself.” (Footnotes omitted).
. In I W. Holdsworth, A History of English Laws 58 (7th ed. 1956), the author states that this provision in the Magna Charta was primarily designed to prohibit the Crown from charging exorbitant fees for access to the courts. Another English commentator suggests that the Magna Charta of 1215 had little practical effect on the English legal system of its day, and this is why it had to be frequently reconfirmed. 1 F. Pollock & F.W. Maitland, The History of the English Law 172-73 (2d ed. 1968). In note 2 of 8 Halsbury’s Laws of England 521-22 (4th ed. 1974), the author makes this observation:
"Although the Magna Carta of Edward I (25 Edw. 1) (1297) and other constitutional documents of the same kind, such as the Petition of Right (1627) and the Bill of Rights (1688), are sometimes regarded in the light of a written constitution they are not complete, and are not immune from change by the ordinary process of legislation. ‘Magna Carta has not remained untouched; and, like every other law of England, it is not condemned to that immunity from development or improvement which was attributed to the laws of the Medes and Persians’: see Chester v. Bateson [1920] 1 KB 829 at 832, DC, per Darling J. Thus the Magna Carta of Edward I has, with the exception of cc. 1, 9, 29 and 37, been repealed by a long series of Acts[.]"
The lack of reference to the Magna Charta of 1215 is somewhat puzzling because, according to another English commentator, the "Magna Carta at once took the place, which it occupied right up to the eighteenth century, as the most important, the most fundamental part of the enacted law." II W. Holdsworth, A History of English Laws 218-19 (4th ed. 1936). See generally 18 Encyclopedia Americana 92-94 (1990).
.According to 8 Halsbury’s Laws of England at 531, the English "courts recognize no limit to Parliament’s legislative power, and will not seriously entertain any attack on the validity of a public or private act. Moreover, there is no doubt that a statute can alter or abrogate rules of common law or equity.” (Footnotes omitted).
.Freezer Storage is noted for this policy statement which has been quoted by several courts:
"This Court would encroach upon the Legislature’s ability to guide the development of the law if we invalidated legislation simply because the rule enacted by the Legislature rejects some cause of action currently preferred by the courts. To do so would be to place certain rules of the ‘common law’ and certain non-constitutional decisions of courts above all change except by constitutional amendment. Such a result would offend our notion of the checks and balances between the various branches of government, and of the flexibility required for the healthy growth of the law.” 476 Pa. at 281, 382 A.2d at 721.
. The statement in Lamb, 308 N.C. at 444, 302 S.E.2d at 882, was:
“The ‘remedy’ constitutionally guaranteed ‘for an injury done’ is qualified by the words “by due course of law.’ This means that the remedy constitutionally guaranteed must be one that is legally cognizable. The legislature has the power to define the circumstances under which a remedy is legally cognizable and those under which it is not.”
However, the court cautioned: "We refrain from holding ... that the Legislature may constitutionally abolish altogether a common law cause of action.” 308 N.C. at 444, 302 S.E.2d at 882.
. In Leeper v. Hillier Group, Architects Planners P.A., supra, the Rhode Island Supreme Court upheld a statute of repose protecting builders and architects.
.Article XVIII, Section 6 of the Arizona Constitution provides: "The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.”
. Ariz. Const, art. XVIII, § 5.
. In Morningstar v. Black & Decker Manufacturing Co., 162 W.Va. 857, 253 S.E.2d 666 (1979), we discussed the historical origins of this constitutional provision and held that it did not restrict this Court’s ability to alter the common law.
. State ex rel. Frieson v. Isner, 168 W.Va. 758, 285 S.E.2d 641 (1981); State ex rel. Kanawha County Bldg. Comm’n v. Paterno, 160 W.Va. 195, 233 S.E.2d 332 (1977). | [
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HayMOND, Judge,
delivered the opinion of the court:
On the 8th day of April, 1873, the plaintiff brought his suit, in chancery, in the circuit court of the county of Fayette, against the defendant, L’Hommedieu. Afterward at the rules for the following May, the plaintiff filed, in the clerk’s office of said court, his bill against the said defendant.
The plaintiff’s said bill is as follows, viz:
“ Humbly complaining, your orator, L. L. Abbott, respectfully shows unto your honor, that on the 11th day of December, 1858, your orator’s father, Isaac H. Abbott, entered into an agreement, in writing, with the above named defendant, Charles L’Hommedieu, which agreement is signed by the said defendant, by which the said defendant covenanted and agreed, upon payment to him of the sum of $464.00, with legal interest thereon from September 5, 1853, to convey to the said Isaac H. Abbott a tract of land containing 509 acres, on Laurel creek, in Fayette county, West Virginia; that under the said agreement there has been paid to the said defendant, two sums of money on account of the said sum of $464.00, aforesaid, viz: $200.00 on July 1, 1859, and $72.83 on November 1, 1860 ; that subsequent to the agreement aforesaid, the said Isaac H. Abbott, for a valuable consideration, assigned, transferred and conveyed his interest in the aforesaid agreement to your orator, which assignment is in writing, and together with the first agreement hereinbefore described, is recorded in the office of the clerk of the county court of Fayette county, West Virginia; that this complainant, by virtue of the aforesaid agreement and assignment, is in possession of the said tract of 509 acres; that he is entitled to a deed therefor ; that he has been ready and has offered to pay to the said defendant the balance due him, according to the tenor and effect of the said original agreement; that he has paid the taxes on the whole tract for many years, and for the defendant’s proportion thereof he is entitled to a credit — (he files an account of *he taxes as a part of this bill, marked taxes); that he has ma(^e a legal tender of the actual amount due thereon to the said defendant, but the said defendant has hitherto, and still continues to refuse to receive and accept the same, and to convey to your - orator the said tract of land. Inasmuch as your orator is remediless except in a court of equity, he prays for a specific performance of the said agreement; that a decree be made by your hon- or requiring the defendant to convey to your orator the tract of land in said agreement specified; which agreement, with the assignment aforesaid, are herewith filed, marked A and B, and prayed to be read as part hereof; and that such other orders and decrees be entered as your orator’s cause may require. And as in duty, &c.
This bill appears to have been sworn to by the plaintiff therein, the agreement or contract between the defendant, L’Hommedieu, and Isaac H. Abbott, and the endorsements thereon and alleged assignment to plaintiff, referred to in the bill, are as follows, viz : “ Memorandum of agreement, made and entered into this 11th day of December, 1858, between Charles L’Hommedieu, of the one part, and Isaac H. Abbott, of the other part, both of the county of Fayette, and State of "Vucinia, witnesseth: That we have this day agreed upon a division line through the tract of land which I, said L’Hom-medieu, bought of Samuel McD. Reed, agent for Magda-line Reed, which land lies on Laurel creek, in the said county and state aforesaid, joining the land of Jackson Burgess, T. S. Robson, Cassady and others. It is hereby agreed that the division line begins at two spruce pines and gum on the west bank of Laurel creek, below the mouth of the branch running down from the “ old house” in which Brogan now lives, and running north 84 degrees west 476 poles to two chestnut oaks on top of a mountain, at the head of the Orchard branch. It is hereby agreed that the said L’Hommedieu is to have tbe land on tbe south side of said line, joining Tatum Cassady and Myles, and that tbe said Isaac H. Abbott is to have the land north of the said line, joining Jackson Burgess, T. S. Robson, Landige and William Grinsted ; the said line was run and marked through on the line by T. S. Robson, surveyor, on the 4th of July, 1857, which marked line is the one we are to abide by. And the said Charles L’Hommedieu further' binds himself to make unto the said I. H. Abbott a general warranty deed to the said land on the north side of said line upon the payment (by the said Abbott) of $464.00, with interest from the 3d day of September. 1853, till paid.
In testimony whereof, we, Charles L’Hommedieu and Isaac H. Abbott, do hereunto set our hands and seals, this the day and year first above written.
“Chas. L’Hommedieu. [Seal.]
“Isaac H. Abbott. [Seal.]
“Teste:
“Thos. S. Robson.”
“ Received of Isaac H. Abbott, his note for the within amount of $464.00, payable one day after date^ with interest from 5th September, 1853, agreeably to the within article, this the 11th day of December, 1858.
“Charles L’Hommedieu.”
“Fayette County, Va., July 1, 1859.
“$200.00. — Received of Isaac H. Abbott, $200.00, on the note held by me, of which the above is a memorandum.
“ Charles L’Hommedieu.”
“Fayette County, Va., Nov. 1, 1860.
“$72.83. — Received of Isaac H. Abbott, $72.83, on the note held by me, of which the above is a memorandum.
“Charles L’Hommedieu.”
“State op WestVirginia, Fayette CouNty, 1 Recorder’s Oppice, August 29, 1872.1& j
“1, G. M. Blume, recorder for .the county and state aforesaid, do certify that Thos. S. Robson, of the parties whose names are signed to the foregoing title bond, bearing date on the 11th day of December, 1858, personally appeared before me, in my office, and made oath that Charles L’Hommedieu, whose name is also signed to said writing, signed and sealed the same before them, to be his act; and Isaac H. Abbott, in his own proper person acknowledged before me, the said writing to be his act, and the same is thereupon admitted to record.
“Teste: “G. M. Blume, Recorder
“This assignment, made this 17th day of August, 1867, between Isaac H. Abbott, of the county of Fay-ette, and State of West Virginia, party of the first part, L. L. Abbott, of the same place, party of the second part, witnesseth : That the said party of the first part, for and in consideration of the sum of $1,500.00, lawful money oí the United States of America, to him in hand paid by the party of the second part, at or before the en-sealing and delivery of these presents, and the receipt ■whereof is hereby acknowledged, hath assigned, transferred and set over, and by these presents doth assign, transfer and set over to the party of the second part, his heirs, executors, administrators and assigns, all his right, title and interest in and to a certain agreement and title bond, executed to the party of the first part by Charles L’Hommedieu, on the 11th day of December, 1858, to sell and convey to the said party of the first part, a certain tract of land lying on Laurel creek, in the county aforesaid, and on which the said Isaac H. Abbott now resides — the said tract containing 509 acres, be the same more or less, and which said title bond is hereto annexed; and the said party of the. second part hereby binds himself, his heirs, executors, administrators and assigns to release the said party of the first part from any further payments on said land.
“In witness whereof the parties have hereunto set their hands and seals, the day and year first above written.
“Isaac H. Abbott. [Seal.]
“L. L. Abbott. [Seal.]”
“ Witness:
“W. F. Bahlman,
“J. H. Abbott.”
“State of West Virginia, CouNty of Fayette, \ Recorder's Office, August 29, 1872. j
I, G. M. Blume, recorder for the county of Fayette, state aforesaid, do certify that Isaac H. Abbott and L. L. Abbott, parties whose names are signed to the foregoing assignment, bearing date 17th day of August, 1867, personally appeared before me, in my office, and ac-knowleged the same to be their act, and the same being-stamped, $1.50 cents, is admitted to record.
“Teste : “G. M. Blume, Recorder.”
On the 14th day of September, 1873, it appears that defendant, L'Hommedieu, appeared in court and with leave of the court filed his answer to plaintiff's bill, to which the plaintiff replied generally. The answer of said L’Hommedieu is as follows: “Respondent, for answer to so much of said bill as he is advised it is material for him to answer, says, that it is true that he, to-wit: on the 11th day of December, 1858, sold to Isaac H. Abbott, not five hundred and nine acres of land, but one-half of a tract previously purchased by respondent of Samuel McDowell Reed, agent of Magdaline Reed, which last mentioned tract contained eight hundred and forty-eight acres, more or less, and divided said eight hundred and forty-eight acre tract so as to give to said Isaac H. all that portion of the latter tract lying north of a certain line agreed upon by the parties for the one-half of the said Isaac H. Said Isaac H. Abbott executed a bond for $464.00 for said one-half, and made the two payments upon said bond specified in said bill. At the time of said sale to said Isaac H. Abbott, said respondent was embarrassed pecuniarily, and made the last mentioned sa^e raise money to assist him to pay for said eight hundred and forty-eight acre tract, the greater portion Pul’chase money of which was then in arrear. Said Isaac H. Abbott, however, never paid anything more than is mentioned above, but on the contrary thereof, became so involved in debt, and so straitened for means to support himself and family, the said respondent, notwithstanding his own embarrassments, was prevailed upon by the earnest and repeated solicitations of said Isaac H. Abbott to furnish and advance, and did furnish and advance, to him large sums of money, tobacco and. other valuables, amounting in the aggregate to the sum of $1,635.60 . The particulars of said advancements will more fully appear by reference to an account thereof, herewith filed, marked B, and prayed to be taken as part of this answer. The claim against respondent for said eight hundred and forty-eight acres of land was transferred to Morris Harvey, and he brought suit for the same in the circuit court of Fayette county against respondent and said Isaac H. Abbott. Respondent was then very much embarrassed financially, growing in great part out of the advances aforesaid, and he complained to said Isaac H., and threatened to sue upon the $464.00 bond aforesaid, and compel payment thereof; and thereupon said Isaac H. made and signed a certain writing, bearing date on the 8th day of June, 1870, and now to the court here showm, whereby he agreed that if he should not pay the balance of said .bond before said eight hun-dredand forty-eightacresshouldbelegallybroughtto sale, then so much of said one-half of said eight hundred and forty-eight acres should be sold as should be necessary to pay the balance aforesaid upon the bond aforesaid, as well as one-half of the costs of said suit; and finally, to-wit: on the 19th day of February, 1871, said Isaac H. Abbott having become hopelessly insolvent and wholly unable to pay respondent any part of the advances aforesaid, and unable to pay even the balance aforesaid of Said bond, except by sale of the one-half of said eight him- dred and forty-eigbt acre tract of land purchased by said Isaac II. Abbott as aforesaid, the said Isaac H. Abbott declared his purpose to abandon his said purchase, and thereupon said respondent and said Isaac H. Abbott, to-wit: on the day and year last aforesaid, mutually agreed that said respondent should remit to and abandon in favor of said Isaac H. all claim upon the bond aforesaid, and all claim and demand for and upon said account of $1,635.60, and that said Isaac H. should surrender and remit to said respondent all claim upon said one-half of the tract of eight hundred and forty-eight acres of land aforesaid, and that said Isaac H. should deliver to said respondent the title bond in said bill mentioned, and that said respondent should deliver said account and $464.00 bond to said Isaac H.: said title bond and $464.00 bond and $1,665.60 account were never delivered, but said respondent relying upon the last mentioned agreement, forebore to sue upon the $464.00 bond aforesaid, as well as upon the account of $1,635.60, until the latter would be barred by the statute of limitations in any suit that could now be brought for it. And said respondent also relying upon said agreement, with much trouble and great pecuniary sacrifice, raised money and paid for said eight hundred and forty-eight acre tract of land without any aid from said Isaac H., except as above set forth, as will more fully appear by reference to a copy of said suit of said Harvey. And said plaintiff well knew all the foregoing facts when the assignment of the title bond mentioned in said bill was made to him, but the said one-half of said eight hundred and forty-eight acres of land has greatly appreciated of late, and, therefore, said plaintiff, who is a son of said Isaac H., combined and confederated with the latter to defraud respondent of the enhanced value of said one-half of said eight hundred and forty-eight acres of land, as well as of said $1,635.60 formerly due on account as aforesaid. Respondent avers that the assignment of said title bond to said plaintiff was made by said Isaac H. long after the date of said assignment, was made without consideration, and was made by said Isaac H. and accepted by said plaintiff, to defraud respondent as above indicated. And having fully answered, respondent prays to be hence dismissed,” Ac.”
The writing alleged to be signed by said Isaac H. Abbott, and referred to in the foregoing answer, is as follows: .
“Suit has been brought in the circuit court by Morris Harvey to satisfy a bond given by Charles I/Hommedieu, in the purchase of a tract of land, bought of Samuel McD. Reed, as agent of Magdaline Reed. And as the said Charles L’Hommedieu has since sold to me a part of the land, and holds my bond for the purchase money, and would have brought suit at the August term for the payment of said bond, this is to certify that, to avoid the expenses of suit, should the bond held by the said L’Hommedieu not be satisfied by the time the land is brought to sale, I agree that a portion of my land shall be sold, sufficient to pay the balance due on said bond, and half the cost that' may accrue by the action taken by the said Morris Harvey.
“Witness my hand and seal.
“Isaac H. Abbott, [Seal].
“Fayette County, June 23, 1870.”
This last quoted writing is alleged, in L’Hommedieu’s answer, to have been made on the 8th day of June, 1870. The account of $1,635.60 referred to in the answer of defendant, Charles L’Hommedieu, is as follows:
“Amount of bond, dated Dec. 11, 1858, and drawing interest from September 5, 1853; principal.S 464 00
Interest' to July 1, 1859 -five years, nine months, twenty-six days. 162 09
Principal and interest...,.$ 626 09
Deduct first payment.J. 200 00
Principal.$ 426 09
Interest to November 1, 1860 — one year'four months. 34 08
Principal and interest.$ 460 00
Deduct second payment. ..... 2 837
Principal...5 387 34
Interest to February 3,1871 -- ten years, three months, twenty-two days. 239 63
Amount of bond at the time of sale.$ 626* 97
One-half Cost of suit. 75 00
$ 701 97
I. H. Abbott, in account with 0. L’Hommedieu.
Amount of note dated May 1,1850.$ 150 00
Interest to February 23,1871 - twenty years, nine months, twenty-two days. 187 30
Amount for horse, November 1,1861. 100 00
Interest to February 23, 1871 — nine years, three months, twenty-two days. 55 86
Amount loaned August 20, 1862.675 00
Interest to February 23, 1871 — eight years, six months three days. 344 58
One third crop tobacco, May 1, 1867. 100 00
Interest to February 23,1871 - three years, nine months, twenty-two days. 22 86
$1,635'60
On the 4th clay of September, 1873, the court made this order in the. cause, viz:
“This cause came on this day to be heard, upon the bill, answer and exhibits, and by consent of parties, the court, without passing upon the issues presented by the pleadings, doth adjudge, order and decree, that this cause be referred to G. M. Blume, Esq., who is appointed a commissioner for that purpose, to take, state and report the following accounts:
“1st. What quantity of land the defendant agreed to convey to Isaac H. Abbott, by the contract set out in, and filed with the bill.
“2d. How much money the said Isaac H. Abbott agreed to and did in part pay thereon.
“3d. How much of the land agreed to be conveyed to the said Isaac H. Abbott, by defendant, the said defendant has, since the date of such contract, conveyed to other parties, and to whom.
“4th. What abatement, if any, the plaintiff is entitled to on the balance due on said contract by reason of such conveyances or sales by the defendant or others,and also by reason of the payment of taxes, by complainant, on the whole of the tract described in the bill.
“5th. At what time Isaac H. Abbott assigned the contract in the bill mentioned to the complainant, and what was the consideration for such assignment. In taking such account the said commissioner shall give the parties to this suit at least ten days’ notice.”
The commissioner made his report to the court, and he reports :
“1st. That by the said agreement, or contract, of the 11th day of December, 1858, the defendant, L’Hommedieu, agreed to convey to Isaac H. Abbott, one-half of the land purchased by the said defendant from Samuel McD, Need, agent for Magdaline Need, supposed to contain-acres, and by subsequent survey found to contain 1,020 acres, and that the defendant, L’Homme-dieu, and Isaac H. Abbott agreed upon a division of said land, giving unto Isaac H. Abbott 509 acres as his portion out of the said survey of 1,020 acres.” The commissioner reports :
“2d. It appearing by said contract that there was a settlement between Isaac H. Abbott and said L’Hom-medieu up to the 11th day of December, 1858, whereupon said Isaac H. Abbott executed to the defendant his bond for $464.00, that being the balance then due to the defendant, I take this as the basis of this settlement for balance due.
The commissioner then proceeds thus, to-wit:
“Bond executed by I. H. Abbott to Charles L’Hommedieu, 11th December, 1858, consideration in title bond.$464 00
Interest on same from September 5, 1853, to July 1, 1859... 162 09
$626 09
Subject to credit, July 1,1859. $200 00
Taxes paid by I. H. Abbott on whole tract for the years 1858 and 1859, $26 23; Abbott’s one-half. 13 10H&213 09jS
$412 87i
Interest on same from July 1, 1859, to March 1, 1860. 38 02^
$446 00
Taxes paid by Abbott for 1860, $20 00; Abbott’s one-half.--¡f 10 00
'Credit on title bond, November 1,1860. 71 83 — $ 82 83
$ 363 17
Interest on same from November 1, 1860, to March 1,3 865.. 108 95
$ 472 12
By taxes by Abbott for the years 1861,1862; 1863, 1864 and 1865, $58 86; Abbott’s one-half. 29 43
$ 442 69
Interest on same from November 1, 1865, to November 1, 1866 . 26 66
$ 469 25
By taxes paid by Abbott for 1866, $33 06; Abbott’s one-half 16 53
$ 452 72'
Interest on same from November 1, 1866, to November 1, 1867. 27 16
$ 479 88
By taxes paid by Abbott for the year 1867, $41 99; Abbott’s one-half... 20 99
$ 458 89
Interest on same from November 1, 1867, to November 1, 1868.. 27 53
$ 486 42
By taxes paid by Abbott for 1868, $42 79; Abbott’s one-half 21 39
$ 465 03
Interest on same from November 1, 1868, to November 1, 1869. 27 90
$ 492 93
By taxes paid by Abbott for 1869, $20 95 : Abbott’s one-half 10 47
$ 482' 46
Interest on same from November 1,1869, to November 1, 1870. 28 94
$ 511 40
Taxes paid by Abbott for 1870, $28 03; Abbott’s one-half— taxes refunded by Board Supervisors to C. L’Homme-dieu, defendant, for the years 1861,1862,1863 and 1864, $43 61; Abbott’s one-half $21 80 (see order Board Supervisors, marked P, herewith filed). 35 81
475 59
Interest on same from November 1,1870, to November 1, 1871. 28 53
$ 504 12'
“Showing a balance due upon bond executed by Isaac H. Abbott to defendant, with interest thereon to November 1, 1871, amounting to $504.12.
3d. And that on or from the 1st to 25th May, 1871, the defendant conveyed to one J. S. Davis 12 acres of land out of the boundary contracted to be conveyed to I. H. Abbott by said title bond, and for which he received the sum of $10.00 per acre, amounting in all to $120. And that in the latter part of the spring, or early part of the summer, of 1873, the defendant conveyed out of said boundary to George A. Burnside and Stephen Arthur, 4 acres of land, for the sum of $100, and as your commissioner cannot get the date of the sale of said land to said Davis and others, interest is brought up to November 1, 1871, on the balance due the,defendant upon the land. The above amount found due November 1, 1871,. is subject to a credit of $120.00, May or June, 1861, and also a credit of $100.00, May or June, 1873.
To balance as above due November 1, 1871.$504 12
Credit by land sold to J. S. Davis.. 120 00
$384 12
Interest on same from November 1,1871, to June 1, 1873...., 36 48
$420 60
Credit by land sold Burnside. 100 00
Showing a balance due defendant up to June 1, 1873.$320 60
The commissioner reports also that of the land agreed to be sold by the defendant L’Hommedieu, to said Isaac H. Abbott, the defendant has sold and conveyed, since the date of said contract, to other persons the two parcels stated in number three of his report. And he also reports, that on the 17th day of August, 1867, Isaac H. Abbott assigned to the plaintiff, the title bond filed and referred to, for, and in consideration of the sum of $1,500. Several exceptions were filed to this report by the counsel of defendant L’Hommedieu, which it is un necessary to notice at this place. On the 4th day of April, 1874, the cause came on to be heard upon the papers formerly read therein, together with the report commissioner G. M. Blume, depositions taken by the commissioner and exceptions taken to said report and also depositions of defendant. And the court being of opinion that the commissioner erred in closing said depositions, and basing his acconnt thoreon, without compelling the deponents to answer proper questions, adjudged, ordered and decreed that the cause be again referred to the commissioner, who was directed to hear such further evidence as either party should produce, requiring the witnesses to answer all proper .questions, and excluding all improper questions from the witnesses if any should be propounded, and to report specially upon the matters referred to him by the former decree of reference, and also upon any proper question or matters in which either party should require a report on what are raised by the pleadings, and that he might take the depositions of witnesses who declined fully to answer. The said commissioner made another report in pursuance of the last named decree, in which he says: “During the taking of said account and report, both parties were present in person, and' represented by counsel. All the witnesses who had previously refused to testify, were recalled and required to answer the questions formerly propounded, and examined to the full satisfaction of both parties. The depositions of all other witnesses produced by either party were taken by me, and all the testimony thus taken, is herewith returned as a part of this report. After both parties had produced before me all evidence they desired, and announced that they had closed this case, I proceeded to re-examine the case upon all the evidence before me, and upon such examination find no reason to change or modify the conclusion at which I arrived in my former report. I, therefore, adopt and make said report a part of this, and respectfully refer the court to that report for my decision upon the ques- ^ions referred to me. Exceptions were filed to this report by the counsel of defendent, L’Hommedieu. Alarge number of depositions were taken in the cause, many by the commissioner and some by others. To some of the depositions taken by each party, exceptions were filed. The depositions and exceptions thereto will be hereinafter considered, so far as deemed material or necessary. On the 7th day of April, 1875, the cause again came on to be heard and the court rendered a decree therein as follows, viz:
“ I. H. Abbott was this day made a party defendent, to this suit, and thereupon appeared and filed his answer to which the plaintiff replies generally. And this cause came on this day to be heard upon the plaintiff’s bill, answer of defendant L’Hommedieu, answer of I. H. Abbott, plaintiff’s replications to said answers, exhibits filed, depositions and exceptions thereto, reports of commissioner G. M. Blume, and exceptions thereto, and orders heretofore entered, and upon arguments of counsel. Upon consideration whereof, and plaintiff having withdrawn all his exceptions, the exceptions to the deposition of Bahlman is overruled, and all the other exceptions taken by defendant to depositions are sustained. And the court is of the opinion that the plaintiff, L. L. Abbott, as the assignee of the defendant, I. H. Abbott, is entitled to a specific execution of said contract, and to a conveyance from defendant Charles L’Hommedieu of the legal ¡title to the tract of land of five hundred and nine acres in the bill and proceedings mentioned, except the one acre sold to G. A. Burnside, and the twelve acres sold to Davis, upon the payment to the defendant, Charles L’Hommedieu, of the balance of the purchase money; but to ascertain what that balance is, this cause is again referred to commissioner G. M. Blume, without passing upon the exceptions taken to his report, and said commissioner is directed to ascertain and' report said balance of said purchase money still due and unpaid on said tract of land, together with such other matters specially stated, touching said bálance as he may deem pertinent or any party requires.” '
The defendant, Isaac H. Abbott, in his answer says that it is true as stated in the bill, that he and his co-defendant purchased the tract of land in the bill mentioned of S. McD. Reed, agent, &c.; that they afterwards made the partition of the tract as charged and that they then made a settlement of their just indebtedness up to that time, and they held in severalty ever after, each claiming up to that partition line and occupying up to that line, and no further; that he sold his said land to his son, the plaintiff, and transferred the benefit of his title to him, who has held and claimed the same ever since. He also admits that the said sale to plaintiff was made for a fair and full consideration without fraud, and the consideration has been paid. He also admits the facts, generally to be true as charged in the bill. The commissioner made his report to the court in pursuance of said last named decree, and ascertains the balance due the defendant L’Hommedieu, on the first day of September, 1875, for said lands to be $284.462. This report is made up in a good dergee of the'same items as his first reports, if not entirely so, although he ascertains the balance due to be, less than in the former reports. To this report of the commissioner, the defendant L’Hommedieu, filed several exceptions as follows, to-wit: 1st. Because the commissioner did not allow said defendant credit for note' bearing date on-1st May, 1840; 2d. Because he does not credit for horse of said L’Hommedieu, taken off by Abbott; 3d. Because he did not allow credit for amount loaned August 20th, 1862; 4th. Because he does not allow credit for interest of defendant in tobacco crop.
On the 5th day of April, 1876, the cause was again heard by the court and a decree rendered therein as follows :
“This day this cause came on again to be’further heard upon the papers formerly filed, and the proceedings for merly had therein; also on the third report of commis- ' sioner G. M. Blume made in this cause, and filed in the , office of the clerk of this court, on the 12th day of August, 1875, and the several exceptions endorsed on said report by the defendant, L’Hommedieu, and was argued by counsel. Upon consideration, the court is of opinion to, and doth accordingly, overrule the said exceptions, and each of them, and doth approve and confirm said report. And being further of opinion that on the payment of the sum of $284.46, with interest thereon from Sept., 1, 1875, until paid, which is the amount due from complainant to the defendant, L’Hommedieu, on the contract between said defendant and Isaac H. Abbott, set out in the bill and proceedings herein, which sum has heretofore been tendered by complainant to said defendant, but which was refused, the complainant is entitled to a deed for the land in said contract described, it is adjudged, ordered and decreed that James H. Nash, who is hereby appointed a special commissioner for that purpose, do, on the payment to him of the. sum aforesaid, with interest as aforesaid, execute and deliver for record to the complainant in this cause an apt and proper deed, conveying to the said complainant the land and estate which by the terms of the contract between Charles L’Hommedieu, and Isaac H. Abbott, described in the bill, the said L’Hommedieu agreed to convey to- said Abbott; but said L’Hommedieu may execute said deed in person, if he do the same within the next thirty days. And it is further decreed that out of the said sum of money the said Nash shall retain $5.00 as an allowance for making said deed, if he execute the same, and the balance he shall apply — first, in payment of the costs of this suit, including an atlowance of $20.00 to complainant’s attorney, and the residue he shall pay'to the defendant, L’Hommedieu, or his attorney. Before receiving any money under this decree, the commissioner shall giveibond in the penalty of $400 before the clerk of this court, with' condition according to law.”
From tbe said decrees rendered in this cause on the 7th day of April, 1875, and the 5th day of April, 1876, the defendant, Charles L’Hommedieu, obtained an appeal from this Court. And it must now be determined upon review of the cause whether there is such error in the said decrees or either of them, as to authorize this Court to reverse the same. The appellant assigned error in the said decrees of the court as follows, to-wit:
“The Court should have refused a specific execution of the contract of sale made December 11, 1858, because—
“1. The plaintiff and his father, Isaac H. Abbott, had for fifteen years neglected and refused to execute said contract on their part, or offer to do so.
“2. Isaac H. Abbott, the vendee, having become utterly insolvent as early as 1862, the contract ceased to be mutual. After this time it could not have been enforced by the defendant, and therefore, a court will not compel its execution for an assignee of the vendee, especially after such great delay, and when the land has enhanced to twice its value at the time of the sale.
“3. The vendee, Isaac H. Abbott, voluntarily abandoned and cancelled the contract. Had it not been for this abandonment the defendant would have allowed the land to go to sale under the decree in favor of M. Harvey, and purchased it for the balance due under the agreement with Abbott," of June 23, 1870, but upon the faith of said cancellation of the purchase, the defendant prevented said sale to his own prejudice. To allow Abbott or his assignee to repudiate this agreement, would be to reward him for his own fraud.
“The court should have required the plaintiff or his assignor to pay the account due the defendant, as well as the balance due on the land purchased. The said account was created upon the faith of said bond as security, ■ and the defendant desisted from suing upon the solemn agreement of the said Isaac H. Abbott that the land should be the property of the defendant. The said Ab bott is now insolvent, and said account barred by the statute of limitations.
“The Court should have sustained the second exception to the deposition of the witness, "W. F. Bahlman, upon the ground that there was no affidavit filed of his non-residence.”
For the sake of convenience I will consider the third assignment of error made by the appellant, before considering the others. This assignment presents an interesting question in practice, and one, it must be admitted, is not devoid of difficulty, owing to the language employed in the 34th section of chapter 130 of the Code, and a manifest intent in the Legislature by that section and the 33d section of same chapter, to change the law upon the subject, as it existed for a long time previous, and as contained in the Code of Virginia, of 1860, in section 30, chapter 176 thereof. The 30th section of chapter 176 of said Code of 1860, so far as it relates to the subject under consideration, provides as follows: “ On affidavit that a witness resides out of the state, or is out of it, in the service thereof, or of the United States, a commission to take his deposition may be issued bv the clerk of the court wherein the case is pending, directed, if the deposition is to be taken out of this state, but within the United States, to any commissioner appointed by the governor of this state, or to any justice or notary public of the state wherein the witness may be, and directed, if the deposition is to be taken in a foreign country, to such commissioner or commissioners as may be agreed upon by the parties or appointed by the court, or if there be none such, &c., * * any person, or persons, to whom a commission is so directed may administer an oath to the witness, and take and certify the deposition with his official seal annexed; and if he has none, then the genuineness of his signature shall be authenticated by some officer of the same state or country, under his official seal, unless the deposition is taken by a justice out of this state but in the United States, in which case his certifi cate shall be received without any seal annexed, or other authentication of his signature.5’ The 31st section of' said chapter 176, provides that: “ Reasonable notice shall be given to the adverse party of the time and place of taking every deposition.55 And the 28th section of same chapter provides, that: “ In any suit an affidavit that a witness or party resides out of this state, or is out of it, shall be prima facie evidence of the fact, although such affidavit' be made by a party, and without previous notice.55 The 32d section of chapter 130 of the Code of 1868, is identical in substance and language with said section 28 of chapter 176 of the said Code of 1860. The 33d section of chapter 130 of the code of 1868, is as' follows : “ In any pending case the deposition of a witness, whether a party to the suit or not, may, without any commission, be taken in or out of the state, by a justice or notary public, or by a commissioner in chancery ; and if certified under his hand may be received without proof of the signature of such certificate.55 And the 34th section of said chapter 130, provides, that: “ on affidavit that a witness resides out of this state, or is out of it iii the service thereof, or of the United States, his deposition may be taken by or before any commissioner appointed by the governor of this state, or any justice, notary public or other officer authorized to take depositions in the state wherein the witness may be, or if the deposition is to be taken in a foreign country, &c. * * Any person, or persons, taking such deposition may administer an oath to the witness, and take and certify the deposition with his official seal annexed; and if he has none, the genuineness of his signature shall be authenticated by some officer of the same state or country, under his official seal, unless the deposition is taken by a justice out of this state, but in the United States, in which case his certificate shall be received without any seal an- ' nexed, or any other authentication of his signature.55 The 3-")th section of same chapter provides, that “ Reasonable notice shall be given to the adverse party of the time and place of taking every deposition.” Under the provisions of the Code of 1860, section 30, chapter 176, the deposition of a witness “ who resides out of the state, or is out of it, &c.,” could be taken by virtue of a commission issued by the clerk of the court wherein the case is pending, directed, if the deposition is to be taken out of this state, but within the United States, to any commissioner appointed by the governor of this state, or to any justice or notary public of the state wherein the witness may be, &c. The commission, under this section, is the authority for the officer to whom directed to take the deposition, and the affidavit required is necessary to authorize the clerk to issue the commission. The required affidavit might be made without notice to the adverse party, and so the commission might issue without said notice, under the 28th and 30th sections. But the 31st section, reqires that, reasonable notice shall be given to the adverse party of the time and place of taking the deposition. The 33d and 34th sections of the 130th chapter of the Code of 1868, by dispensing with a commission also dispenses with the necessity of the affidavit required by the 30th section of chapter 176 of the Code of 1860, except, perhaps, so far as such affidavit might be prima facie evidence that the witness resides out of this state, or is out of it, in the service of the state, &c, at the time his deposition was taken. Section 32 and 36, chapter 130, Code of 1868, sections 28 and 32, chapter 176, Code of 1860. Section 34 of chapter 130 of the Code of 1868, does not designate or require that the affidavit therein named shall be filed in the clerk’s office of the court in which the case is pending, or any other place, before the deposition of the witness is taken; nor is it required that the adverse party shall have previous or any notice of the time or place of making the affidavit, or any notice whatever in . relation thereto. What, then, was the reason, intent and purpose of the Legislature in providing for an affidavit at all, in said 34th section ? It seems to me that it was intended, that there shall be at least prima fade evidence, ordinarily, that tbe witness resided out of tbe state, or is out of it, in tbe service of tbe state, &c., at the time the deposi tion is taken, before the deposition can be read as evidence, if objected to. This affidavit may be made by a party to tbe suit. If it does not mean this, then it seems to me that it is meaningless, and was retained in the said 34th section inadvertently or by mistake. If, then, the object and intent of the Legislature was as I have suggested in this respect, that object and purpose is attained just as well by the deposition of the witness, if it prove the fact that the witness resides out of the state, or is out of it, in the service of the state, &c., at the time' his deposition is taken, as by an affidavit, and in fact is more satisfactory, because the deposition is required to be taken on reasonable notice of time and place of taking the same to the adverse party. I am of opinion for the reasons stated, that the true purpose and intent of said 34th section, in providing for an affidavit, is complied with if it appears by the deposition of the witness whose deposition is taken, or other evidence that the witness resided out of the state, or was out of it, in the service, &c., at the time the deposition was taken. Perhaps the party objecting to the reading of the deposition should be permitted to show, in support of his objection by evidence to the court, that the witness, whose deposition is offered, did not in fact reside out of the state at the time his deposition was taken, or went out of the state for the purpose of having his deposition taken, &c. But as these questions do not arise in this case, I do not give any opinion upon that subject. The exceptions iiled by the counsel of L’Hommedieu to the deposition of William F. Bahlman are: 1st, No sufficient notice was given. 2d. The notarial certificate of the taking thereof is not sufficient. 3d. The evidence is immaterial. And lastly. Because the deposition was taken without any affidavit of the non-residency of the witness. No insufficiency in the notice, or the certificate of the tak- hng of the deposition, has been brought to our attention, and I see none of a substantial nature. The evidence con-tailed in the deposition is clearly not immaterial. Said witness,William F. Bahlman, deposes in his said deposition that he is thirty-seven years of age, that he resides in the city of Lexington, county of Lafayette, and state of Missouri, and that he is employed as principal of the high school in said city of Lexington. ' Under the views stated above, I am of opinion that the circuit court did not err in overruling the exceptions of the defendant, L’Hommedieu’s counsel filed in the cause to the reading of said deposition, and that the appellant’s third and ‘last assignment of error is not well taken.
I will now proceed to consider the appellant’s first assignment of error, which seems to be divided into three de-visions. Before considering the facts disclosed by the record in this cause, I deem it proper to ascertain and state, at least, some of the settled law which governs courts of equity with us in compelling the specific execution of contracts for the sale of land. The exercise of this whole branch of equity jurisprudence, respecting the recision and specific performance of contracts is not a matter of right in either party, but it is a matter of discretion in the court; not, indeed, of arbitrary or capricious discretion dependent upon the mere pleasure of the Judge, but of that sound and reasonble discretion which governs itself, as far as it may, by general rules and principles; but at the same time which grants or withholds relief according to the circumstance of each particular case, when these rules and principles will not furnish any exact measure of justice between the parties. 2d vol. Story’s Eq. Jur., §742, and authorities there cited, §693 and §769 of same book. “When, indeed, a contract respecting real property is, in its nature and circumstances, unobjectionable, it is as much a matter of course for courts of equity to decree a specific performance of it as it is for a court of law to give damages for a breach of it. And generally, it may be stated, the courts of equity will decree a spe cific performance when the contract is in writing, and is certain, and is fair in all its parts, and is for an adequate consideration, and is capable of being performed, but not otherwise.” Same author and book, §751, and authorities there cited. Hale v. Wikinson, 21 Gratt., 75; see opinion of Judge Moncure, in this case at pages 83, 84; Story’s Eq. Jur., §769, 770, and authorities there cited. It is quite manifest from the evidence in this cause that the said agreement between Isaac H. Abbott and the defendant, L’Hommedieu, of the 11th day of December, 1858, is not the first contract made between them in relation to one-half of the land purchased by L’Hommedieu of Samuel McD. Reed, agent of Magde-line Reed, in said agreement mentioned. For it seems that prior to 1852, and perhaps in 1851, the said L’Hom-medieu sold to Isaac H. Abbott an undivided half of said land, purchased by L’Hommedieu from said Reed, and that the contract price was some $892.52, to be paid in equal installments, in September, 1852 and 1853, and that said Isaac H. Abbott did pay. on said purchase money, in 1852, about $472, and perhaps a few cents more. And this doubtless accounts for the said agreement of the 11th of December, 1858, stating at its be-gining, “that we have this day agreed upon a division line through the tract of land which I, said L’Homme-dieu, bought of Sam’l McD. Reed,” &c. Thus it appears that there were, in fact, two contracts between said Isaac H. Abbott and L’Hommedieu, in relation to the land, and that the said contract made between them on the 11th of December, 1858, was the second contract and was made after they had agreed upon a division line between them as stated in said last named contract, and after said Isaac H. Abbott had paid a large amount of the purchase money, and that the $464.00 of purchase money in said last named contract mentioned, was, in fact, the balance of purchase money then due from Isaac H. .Abbott to said LTTommedieu, for that part, to-wit: the part north of said division line, 'which fell to said Isaac . H. Abbott on the said division and in said last named 'contract mentioned. It appears that on the said 11th day of December, 1858, the said Isaac H. Abbott made to L’Hommedieu his note for $464, the said balance of purchase money in said second contract mentioned, with interest from the 5th day of September, 1853, the time the last installments of purchase money became payable from Isaac H. Abbott to said L’Hommedieu under their first contract in relation to the land. It further appears that on the 1st day of July, 1859, Isaac H. Abbott paid on the said $464.00, and its interest, for which he gave his note to L’Hommedieu, the sum of $200.00; and also, on the 1st day of December, 1860, the further sum of $72.83. It further appears in this case, that Isaac H. Abbott and the plaintiff paid the taxes for a number of years on the whole of the said eight hundred and forty-eight acres of land, which amounted to a considerable sum of money, for which the commissioner allowed credit in his reports. It also appears by the said contract of the 11th-of December, 1858, that the said division line1 in said contract mentioned was run out and marked by T. S. Hobson, surveyor, on the 4th of July, 1857. I infer from the evidence that Isaac H. Abbott was residing on the land which fell to him on said division at the date of the contract of the 11th of December, 1858, and that he and his family have continued to reside thereon from that time to the present, with the exception of the time, that they and L’Hom-medieu were absent during the war. L’Hommedieu says, in his deposition first taken, that “in July the male portion of the family went to Montgomery county, Virginia, and. returned in September; and in November, when General Floyd left ' Fayette county, we all, the male portion of the family, went to the east again, and when General Loring left the valley in 1862, the family went and remained during the war.” Further on he says: “ After the war we returned in August, 1865.” L’Hommedieu in his an swer, does not deny the making of the assignment by Isaac H. Abbott, to the plaintiff, L. L. Abbott, but be denies that it was made at its date, but was in fact made long after its date, and after 1871, and he avers that it was made without consideration, and was made by said Isaac H., and accepted by the plaintiff to defraud him (L’Hommedieu). He also denies having any notice thereof until after it was recorded. The said L’Hom-medieu does not controvert the allegation contained in plaintiff’s bill, that he (plaintiff) had made a legal tender of the actual amount, due on said purchase money to said L’Hommedieu, and that he has hitherto and still continues to refuse to receive ánd accept the same, nor does L’Hommedieu controvert the allegation in the bill that plaintiff is in possession of the land in question. These allegations must then, under the law, be taken for confessed for the purposes of this suit. William F. Bahlman in his deposition, swears that he has been acquainted with the plaintiff, L. L. Abbott, since the 4th day of May, 1855, and- with said L’Hommedieu since the summer of 1857, or 1858, and with Isaac H. Abbott since May, 1855 ; that on the 17th day of August, 1867, he was at the residence of Isaac H. Abbott, on Laurel creek, in the county of Fayette, and state of West Virginia ;■ and that on the said 17th day of August, 1867, and at the said place, “the said L. L. Abbott and Isaac H. Abbott were engaged in settling their business affairs, and at their request he drew up an assignment of a certain memorandum agreement, or titte bond — a copy of which said agreement, or title bond, is hereto annexed, marked exhibit B; and a copy of which said assignment is also hereto annexed, marked exhibit A; that he drew up said assignment as aforesaid, and witnessed it on the day therein expressed. J. H. Abbott, a son of said Isaac H. Abbott, and a brother of the plaintiff, in his deposition swears that he was at his father’s on the 17th day of August, 1867, and L. L. Abbott and Isaac H. Abbott, were settling up some accounts, and for the amount of some $ 1,500.00 or $1,660.00 due to L. L. Abbott, upon said settlement Isaac H. Abbott executed to L. L. Abbott a title bond tor five hundred and nine acres of land, where he then and now resides, it being the same land in controversy in this suit. Isaac H. Abbott swears substantially that the consideration of the assignment by him to L. L. Abbott of the title bond, or contract aforesaid, was $1500.00, and that the transfer was made August 17th, 1867. The plaintiff, in his deposition, swears that $1,500.00, was the consideration for the transfer from Isaac H. Abbott of the title bond filed in this cause, and the 17th day of August, 1867, was the time said transfer was made. The said assignment on its face, purports to have been witnessed by ~W. F. Bahl-man and J. H. Abbott. Here then are four witnesses, who testify expressly to said assignment, on the day of its date, and three to the consideration of$l,500.00, therefor. It is true that defendant, L’Hommedieu has filed the depositions of some twenty-five witnesses or more, whose evidence tend to prove that the general character of the said Abbott’s for truth and veracity is bad, and that they are not to be relied on upon oath’ where they are interested. On the other- hand, the plaintiff has filed the depositions of a number of witnesses (though not so many as defendant, L’Hommedieu) tending to prove that the general character of said Abbott’s for truth and veracity is good, and that from such character they are entitled to credit upon oath. But the.defendant, L’Hom-mediueu has not succeeded in impeaching the character of the witness, Balhman for truth and veracity, or his title to credit upon oath. And this witness in his deposition, strongly tends to corroberate and sustain the evidence of the said Abbotts in most material particulars. From the evidence touching said assignment in the bill mentioned, I feel bound to conclude that the said assignment from Isaac H. Abbott to the plaintiffs, L. L. Abbott, was made on the 17th day of August, 1867, and that it was made for a valuable consideration, but whether the consideration was tbe full value of the land at that time, I do not feel able to determine; nor do I deem it material ; nor do I feel authorized to determine that the full amount of the $1,500,00, consideration named in the assignment from Isaac H. Abbott to the plain tiff, has been fully paid by the plaintiff, or was paid at the date of the said assignment; I feel authorized to infer that at least so much of said $1,500.00, as was sufficient to pay the balance of purchase money due to the defendant, L’Hommedieu has not been paid. But under the view I take of this case ■it is immaterial whether the whole of said $1,500 has been paid or not. The defendant, L’Hommedieu, in order to avoid the ordinary force and effect of the said contract of the 11th day of December, 1858, and the said assignment thereof by Isaac H. Abbott to the plaintiff, avers and sets up in his answer, that “ on the 19th day of February, 1871, said Isaac H. Abbott, having become hopelessly insolvent and wholly unable to pay respondent any part of the advances aforesaid, and unable to pay even the balance aforesaid of said bond, except by sale of the one-half of said eight hundred and forty-eight acre tract of land purchased by said Isaac H. Abbott, as aforesaid, the said Isaac H. Abbott declared his purpose to abandon his said purchase, and thereupon said respondent and said Isaac H. Abbott, to-wit: on the day and year last aforesaid, mutually agreed that said respondent should remit to and abandon in favor of said Isaac H., all claim upon the bond aforesaid, and all claim and demand for and upon said account of $1,635.60, and that said Isaac H. should surrender and remit to said respondant all claim upon said one-half of the tract of eight hundred and forty-eight acres of land aforesaid, and-that said Isaac H. should deliver to said respondent the title bond in said bill mentioned, and that said respondent should deliver said account and $464.00 bond to to said Isaac H.; said title bond and $464.00 bond and $1,665.60 account were never delivered, but said respondent, relying upon the last mentioned agreement, forebore to sue upon the $464.00 bond aforesaid, as well as upon the account of $1,635.60, until the latter would be barred by the statute of limitations, in any suit that could now be brought for it.” And he further avers that he had no notice of said assignment to said plaintiff until sometime after said assignment was admitted to record in the recorder’s office, and that said assignment, under the circumstances, cannot effect the parol contract and recision made between him and said Isaac H., as aforesaid, to his prejudice in a court of equity. Story, in his work on equity jurisprudence, §770, 2d vol., says: “But courts of equity do not stop here, for they will let in the defendant to defend himself by evidence to resist a decree, when the plaintiff would not always be permitted to establish his case by the like evidence. Thus for instance, courts of equity will allow the defendant to show, that, by fraud, accident, or mistake, the thing bought is different from what he intended; or that material terms have been omitted in the written agreement; or that there has been a violation of it by parol; or that there has been a parol discharge of a written contract. The ground of this doctrine is that which has been already alluded to, that courts of equity ought not to be active_ in enforcing claims, which are not under the actual circumstances, just as between the parties.” It must be borne in mind that the defendant, L’Hommedieu, says in his answer that “ the claim against respondent for said eight hundred and forty-eight acres of land was transferred to Morris Harvey, and he brought suit against respondent, and said Isaac H. Abbott. Respondent was then very much embarrassed financially, growing in great part, out of the advances aforesaid, and he complained to said Isaac H. and threatened to sue upon the $464.00, bond aforesaid, and compel payment thereof, and thereupon said Isaac H. made and signed a'certain writing, beariag date the 8th day of June, 1870,. and now to the court here shown, whereby he agreed that if he should not pay the balance of said bond before the said eight hundred and forty- eight acres should be legally brought to .sale, then so much of said one-half of said eight hundred and forty-eight acres should be sold as should be necessary to pay the balance aforesaid upon the bond aforesaid, as well as one-half the costs of said suit.” By reference to the said writing referred to above, which I have hereinbefore incorporated into this opinion, it will be seen that the true date of said writing is the 23d. day of June, 1870. Here the defendant, L’Hommedien, clearly shows, in my judgment, that neither he nor the said Isaac H. considered the said contract of December 11, 1858, as being abandoned. And as in the said writing of Juné, 23, the said Isaac H. says : “ And as the said Charles L’Hommedieu has since sold to me a part of the land,'and holds my bond for the purchase money, and would have brought suit at the August term for the payment of said bond, this is to certify that to avoid the expenses of suit should the said bond, held by L’Hommedieu, not be satisfied by the time the land is brought to sale, I agree that a portion of my land shall be sold, sufficient to pay the balance due on said bond, and half the cost that may accrue by the action taken by the said Morris Harvey,” it is clear to my mind that neither said L’Hommedieu, nor the said Isaac H., at the date of said writing, contemplated an abandonment or recision of said contract of the 11th day of December, 1858, but, only if the bond of the said Isaac H. to said L’Hommedieu, should not be satisfied by the time the whole land, that is the eight hundred and forty-eight acres, should be brought to sale, that a portion of the said land sold to said Isaac H., should be sold, sufficient to pay the balance due on his purchase money bond, and one-half the cost that should or might accrue in the Harvey suit. It also seems to me, that from the terms of said writing of June 23d, 1870, that it is fairly inferable that it was comtemplated by said L’Hommedieu and Isaac H., that if the said eight hundred and forty-eight acres of land was brought to sale in said Harvey suit, that defendant, L’Hommedieu, _ should, or would purchase the same, and that then the ~ said L’Hommedieu might sell a sufficient amount of the land sold by him to said Isaac H., to pay the balance of the purchase money due on said $464.00 bond, and one-half of the cost of said Harvey suit; and this may account for sales of said land by surveyor Eobson, who seemed to be acting for the parties after the said 23d day of June, 1870, and also after the 19th day of February, 1871, L’Hommedieu in his first deposition, says “on the 19th day of February, 1871, one- day before the sitting of the' circuit court, at which time the land was to be sold, Mr. Eobson went as my agent to see Mr. Abbott, with instructions if he did not get the title bond, to notify Mr. Abbott that I would have him summoned next morning before Judge Gillespie to testify in open court to the assurances he had given that he had no claim Pn the land; he said he would send the title bond, but he did not have it, but he would go before the court and testify to said facts, that he had nothing to do with the land; he also said that I had let him have more money than he had ever let me have; I had done more for him than the boys had done; the boys had acted very badly, and he never intended they should have anything to do with the land; he said he was not very well, but if I insisted, he would go.” It is evident that L’Hommedieu is not here stating a conversation between himself and said Isaac H., but what said Isaac H., said to his agent Eobson, in his absence, and what said Eobson reported to him, said Isaac H. said. But the defendant, L’Hommedieu, before giving his deposition, took the deposition of his said agent, Eobson, and attempted to prove what he (L’Hommedieu) stated as above, and he asked said Eobson this question : “ Please state whether, or not, you at any time was requested by the defendant to go to I. H. Abbott and have him, Abbott, relinquish all his claim to the land in controversy. State the time and all the circumstances attending .the whole transaction in regard to Abbott’s giving up the title papers and claim to said land.” To this question said Robson made this answer: “At the request of defendant, I went' to see I. H. Abbott a few days before the sale of the land, relative to making some arrangements as to how the debt against the land should be paid. Mr. Abbott stated to me that the boys, his sons, had told him they would try and send the money before the day of sale, and that they ought to have done it. He told me further, that Lent L. • Abbott had all the papers, and that he could do nothing unless he came to attend to it, and if they did not send the money, he knew no other way but to sell the land, as he had nothing to do with it; and never having read any of the papers, receipts or transfers, or anything relative to the whole transaction,, except the title bond.from defendant, L’Hommedieu, to I. H. Abbott, which I wrote myself, and having no knowledge of the said title bond having been transferred to L. L. Abbott, I may have told the defendant that I understood from the said I. H. Abbott’s talk to me, that he was willing to give up the land to him to do what he thought best with it in case L. L. Abbott or his sons did not come forward on or before the day of sale, to satisfy the debt against it.” Thus, it appears by the plaintiff’s witness, Robson, that said Isaac H. did not state to him what L’Hommedien says in his deposition Robson stated to him said Isaac H. said to him (Robson), and the said Robison says he went to see said Isaac H. for L’Hom-medieu, relative to making some arrangements as to how the debt against the land should be paid, but he does not state he went for the purpose which L’Hommedieu says he sent him. It seems that after February, 1871, and in the year 1871, the said L’Hommedieu conveyed to one J. S. Davis, twelve acres of land within the boundary contracted to be conveyed to I. H. Abbott, for which he received $10.00 per acre, amounting to $120.00, the said twelve acres being part of a larger tract conveyed by said L’Hommedieu to said Davis; and that some time year 1873, or recently before that year, he, L’Hom-medieu, also sold or conveyed a small parcel of the land in controversy, to George A. Burnside and Stephen Arthur, for which he, L’Hommedieu, received $100.00. And it appears by the deposition of said T. S. Hobson, taken by plaintiff, that the commissioner, after the defendant, L’Hommedieu, had concluded his examination of the witness, asked the said Hobson this question : “State, if you know any and what agreement or understanding was between the parties about the land sold off to Davis and Burnside; how was this to be settled, or accounted for between the parties? Also state the date of any such conversation between the parties?’’ To which question the said Hobson made answer as follows: “ I know of no understanding made when both parties were present together with me, but each left it to me to run off the land in selling, so as not to injure the sale of what might be left on either side of the division line. I supposed and understood that the purchase money would be divided in proportion to the land claimed by each, or they could so arrange it as to exchange land, yet unsold, so as to suit each party. I don’t remember the date, .but it was about the time that James and John Little bought the land, they bought the land of defendant, which was before the sale and on up to the sale to Burnside and Arthur.” Burnside in his deposition, was asked by the commissioner this question: “Was you notified by I. H. Abbott that the plaintiff, L. L. Abbott, was the owner of the land,” to which he made answer: “It was before I purchased the mill seat; we did not know what to.do, both parties claiming the land; we went to Mr. Hobson for information; he told me I was to buy of L’Homme-dieu ; it seems from the run of the discourse between the parties, that the money to be, paid for the mill seat was to go to Mr. L’Hommedieu to pay or finish paying the purchase money.” It does not clearly appear that L’Hommedieu had notice of the said assignment from said Isaac- H. to plaintiff, until about the time it was admitted to record. It will be seen that defendant, L’PIommedieu, filed with his answer an account specifying the items, of which the $1,635.60 is made up, from which and his own evidence, it seems that all the items of that account, except the amount of purchase money due from Isaac H. Abbott and the one-half of costs of suit, and the $100.00 for one-third of tobacco crop, were barred by the statute of limitations long prior to the year 1871. And it seems to me from his own deposition if he has a just claim on any person for said $100.00 for tobacco it is against Joel Abbott, and not against Isaac H. Abbott, or the plaintiff. Upon the whole without specifying further, after examining and considering the evidence, I don’t think the defendant L’Hommedieu, has satisfactorily established his defense as to the abandonment or recision of said contract as set up in his answer. I by no means feel authorized to hold from the evidence that said contract of 11th day of December, 1858, ever was abandoned or rescinded by I. H. Abbott, either before or after the assignment thereof by plaintiff. This case can in no wise be assimilated to the case of Bowles v. Woodson, 6 Gratt., 78, cited by appellant’s counsel, which may readily be seen by referring .to the statement of the case contained in the report. It is true that Judge Story, in the 2d vol. of his Eq. Jur., §771, says: “In general, it may be stated, that to entitle a party to a specific performance, he must .show that he has been in no default in not having performed the agreement,, and that he has taken all proper steps towards the performance on his own part. If he has been guilty of gross laches, or if he applies for relief after a long lapse of time, unexplained by equitable circumstances, his bill will be dismissed, for courts of equity do not, any more than courts of law administer relief to the gross negligence of suitors.” But in the same paragraph he further says, “but this doctrine is to be taken (as we will presently see), with some qualifications. For, although courts of equity will not encourage laches; yet, if there has not been a strict legal compliance with the terms of ' the contract, and the non-compliance does not go to the essence of the contract, relief will be granted.” “Equity follows the law in holding that time does not run against one who is in possession in the exercise or assertion of a right, and hence a vendee who enters upon land and holds the land with vendor’s consent and acquiescence will not be barred by the mere lapse of time, nor until he is put in default by a notice to surrender the premises or pay the price. DuBois v. Baum, 10 Wright, 537; Williams v. Staake, 2, B. Monroe, 196; Schmidt v. Livingstone, 3 Edw., 213; Ely v. McKay, 12 Allen.” White and Tudor’s Leading Cases in Equity, part 2, vol. 2., 4th Amer. Ed., page 1137. In same vol. page 1135, it is said:
“ A contract cannot be rescinded by one party, nor without the mutual consent which gave rise to the obligation, where nevertheless a purchaser or vendor is so far in default as to have lost the legal right to enforce the agreement, justice requires that the opposite party should have the privilege of naming a reasonable time within which, if the agreement be not fulfilled, all right under it shall cease. This modification is of comparatively recent growth, and reduces the doctrine that time is not of the essence of the contract to the reasonable proportions, which are not inconsistent with the justice that should not be lost sight of in administering equity; Remmington v. Kelly, 7 Ohio, 432; Kirby v. Harrison, 2 Ohio N. S., 326, 332; Brasher v. Gratz, 6 Wheat., 528; Jackson v. Ligon, 3 Leigh, 161; Wisnell v. McGowan, 1 Hoffman, Ch. 125; Thompson v. Dulles, 5 Richardson’s Eq. 370; Smith v. Lawrence, 65 Mich., 489; Hatch v. Cobb, 4 Johnson, Ch. 559.” In same book, page 1,056, it is said, “if one of two parties, concerned in a contract respecting lands, gives the other notice that he does not hold himself bound to perform, and will not perform the contract between them, and the other contracting party to whom the notice is given, makes no prompt assertion of’his right to enforce the contract, equity will consider bim as acquiescing in the notice, and abandoning any equitable right he might have had to enforce the performance of the contract, and will leave the parties to their remedies and liabilities at law. Guest v. Hemphrey, 5 Ves., 818; Heaphy v. Hill, 2 S. & S., 29; Watson v. Reid, 1 Russ. & M., 236; Walker v. Jeffreys, 1 Hare, 341.” Time is not ordinarily of the essence of a contract for the sale of land. It is clear to my mind that neither of the parties to the contract of the 11th day of December, 1858, regarded the prompt payment of the purchase money as of the essence of'the contract. They certainly have not so stipulated. In the volume last cited, at page 1,110, it is said: “it results from the principle above stated, that as the immediate effect of the contract is to vest the ownership of the land in the vendee, and that of the purchase money in the vendor, so the right thus acquired will not be forfeited by a failure to execute a conveyance or pay the price at the appointed time, unless the circumstances or the terms employed are such as to take the case out of the general rule. In other words, the contract, although executory in form, is regarded by a chancellor as executed in fact, and consequently within the rule which would be applied at law if the vendor had given a deed.” In the case of DeCamp v. Feay, 5 S. & R., Gilson, Judge, said : “ Where time admits of compensation, as it perhaps always does where the lapse of it arises from money not having been paid at a particular day, it is never an essential part of the agreement.” The plaintiff has offered to perform the contract of the 11th day of December, 1858, by tendering to defendant, L’Hommedieu, the full amount of the balance of said purchase money, before the commencement of this suit, but the defendant, LTIommedieu, refused to receive the same and to execute a deed for the land, as clearly appears by the record before us. And the plaintiff avers that he is still ready and willing to pay said balance of of purchase money,
For the foregoing reasons, after examination of the case, and considering the whole subject, it seems to me three divisions of the appellant’s first assignment of error are each not well taken under the circumstances of this case and the authorities applicable thereto, and that they must each be overruled. The appellant’s second assignment of error is not well taken for obvious reasons, and is fully covered by what has preceded. The appellant has filed some evidence showing that the land in question has, within the last few years, and between 1867 and the commencement of this suit, increased in value materially, because, in part at least, from the construction of the Chesapeake and Ohio railroad within a few miles of it. In Williard v. Taylor, 8 Wall., 558, 571, Field, Judge, observed: “The question in such cases always is, was the contract, at the time it was made, a reasonable and fair one ? If such were the fact, the parties are considered as having taken on themselves the risk of subsequent fluctuations in the value of the property, and such fluctuations are not allowed to prevent its specific performance.” Cady v. Gale, 5 W. Va. But see Fry on Specific Performance of Contracts, 2d American ed., §252, 256. I have considered all the questions covered by the appellant’s assignment of error contained in his petition, or suggested in the brief of the appellant’s counsel, or suggested in argument, and it seems to me that neither of the errors assigned are well taken or well grounded.
But it appears that the defendant, L’Hommedieu, in 1871, sold, and perhaps conveyed, then or afterwards, to one John S. Davis a boundary of land, including about twelve acres of the land embraced by the contract or agreement of said L’Hommedieu and Isaac H. Abbott, dated the 11th day of December, 1858, at the price of $10.00 per acre, or, in other words, about twelve acres of said tract or boundary so sold by L’Hommedieu to said Davis, lies on the north side of the division line in said contract or agreement. (See printed record. of this case, deposition of T. S. Robson, p. 28; deposition of defendant, L’Hommedieu, pp. 50, 115 and 116; first report of commissioner Blume, pp. 60, 61; also last report of same commissioner, p. 126.) It also appears that defendant, L’Hommedieu, in 1872, sold, and perhaps then or thereafter conveyed, to George A. Burnside and Stephen Arthur, about three or four acres of the land, including a mill seat, embraced by the said contract or agreement of the 11th of December, 1858, and on the north side of said division line, at the price of |100.00. (See same pages of printed record last above referred to.) The purchase money for these parcels of land seems to have been paid or arranged by ■ said purchasers to or with said defendant, L’Hommedieu, which, in the aggregate amounts to $220.00, exclusive of interest, and it will be seen by reference to the last report made in the cause by said commissioner Blume, at pages 126, 127, of printed record, that the plaintiff was allowed, and received a credit upon the purchase money due defendant, L’Hommedieu, upon the land in controversy, for the amounts, and interest thereon, received by said L’Hommedieu for the purchase money for said two parcels of said land so sold to said Davis, Burnside, and Arthur. And that the sum of $284.46-!, with interest thereon from September 1,1875, until paid, which the court, by its decree of the 5th day of April, 1876, ascertained to be the amount due said L’Hommedieu, on the 11th of December, 1858, aforesaid, is the balance of said purchase money due upon said contract, after deducting, among other credits, the price for which said L’Hommedieu sold said two several small parcels of land to said Davis, Burnside and Arthur. It will also be seen by reference to the decree of the court of the 7th day of April, 1875, rendered in this cause, that among other things said decree declares: “ And the court is of opinion that the plaintiff, L. L. Abbott, as the assignee of the defendant, I. H. Abbott, is entitled to a specific ■ execution of said contract, and to a conveyance from defendant, Charles L’Hommedieu, of the legal title to fíie tract of land of five hundred and nine acres in the bill and proceedings mentioned, except the one acre sold to G. A. Burnside, and the twelve acres sold to Davis, upon the payment to the defendant, Charles L’Hommedieu, of the balance of the purchase money,” &c. The exception made as above as to the one acre sold to G, A. Burnside, is not accurate, but should have been and should now be corrected by this court, so as to read, “ except the parcel of three or four acres of land sold to G. A. Burnside and Stephen Arthur, and the twelve acres sold to John S. Davis,” &c. It will be seen by reference to the said decree of the.5th of April, 1876, that the court in that decree ascertains and determines that on the payment of $284.46, with. interest from September, 1875, the balance of purchase money due defendant, L’Hommedieu, the plaintiff is entitled to a specific execution of said contract in the bill and proceedings mentioned, and directs that the special commissioner appointed for the purpose “do, on the payment to him of the sum aforesaid, with interest as aforesaid, execute and deliver for record to the complainant in this cause an apt and proper deed, conveying to the said complainant the land and estate which by the terms of the contract between Charles L’Hommedieu and Isaac H. Abbott, described in the bill, the said L’Hommedieu agreed to convey to said Abbott.” There is an error in this decree in'not excepting from the direction to the commissioner to convey said land and estate to the complainant the twelve acres thereof sold by the defendant, L’Homme-dieu, to John S. Davis, and the three or four acres thereof sold by said L’Hommedieu to George A. Burnside and Stephen Arthur, embracing a mill seat. This error in said last named decree should now be corrected by this Court, so that said two several parcels of land sold by said L’Hommedieu, as aforesaid, to the said John S. Davis, G. A. Burnside and Stephen Arthur, should be excepted from the conveyance directed in said last- n^mecl decree to be made tojthe complainant. These corrections of said decrees of the 7th of April, 1875, and 5th of April, 1876, might have been made by the court below upon notice, to thus correct them, and it is competent for this Court now to so correct said decrees in the respects above indicated, and to confirm the same as thus corrected. Entertaining these views and opinions for the reasons above stated, the said decrees of the circuit court of the county of Fayette, rendered in this cause, on the 7th day of April, 1875, and on the 5th day of April, 1876, must be corrected in the particulars and respects above indicated, and being so corrected they must each be affirmed with costs and $30.00 damages in favor of the appellees against the appellants.
Decrees Affirmed. | [
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BAKER, JUDGE:
Claimant brought this action to recover damages for personal injuries and the loss of a tractor-trailer which occurred in a single vehicle accident on Route 60 near Rainelle, West Virginia. Claimants allege that the proximate cause of the accident was the failure of respondent to properly maintain the berm of Route 60 at the accident site. .
Respondent contends that the berm of the road was maintained in proper condition and that the accident occurred when claimant George Meisenhelder drove his tractor-trailer too close to the edge of the berm and the vehicle rolled over the side of the mountain.
The evidence established that the incident occurred on August 28, 1986. claimant George Meisenhelder, owner of a 1978 Freightliner tractor-trailer, was self-employed as an independent connecting carrier. He had picked up a load of Ford engines in Indianapolis, Indiana, under a contract with P. Y. Transport. The engines were bolted on an apparatus which was in turn bolted onto the inside of the trailer. His wife, claimant Nancy Meisenhelder, was traveling with him to Norfolk, Virginia. They left Indianapolis and stopped overnight in Winfield, West Virginia. The next morning (August 28, 1986) they left Winfield and were traveling on Route 60 toward Rainelle, West Virginia. As claimants approached Rainelle, they were traveling down Sewell Mountain. Claimant George Meisenhelder decided to pull his rig to the side of the road to check the brakes. There was no emergency. He noticed a wide area on his right and pulled off the road. As he was stepping out of the tractor, he felt the trailer move. He jumped back into the tractor as the rig began to roll over the side of the mountain. The rig made a full turn and ended up on its side with the passenger side of the tractor toward the ground leaning against some trees. Emergency personnel took the claimants to different hospitals. Claimant George Meisenhelder suffered broken ribs. He has since recovered from his injuries. He was unable to work for approximately six to eight weeks due to his injuries, and his tractor-trailer outfit was a total loss. Claimant Nancy Meisenhelder suffered injuries to her back, neck, and hip. She also sustained cuts on her legs. She has received sporadic treatments for her back injury and still experiences back pain.
The testimony revealed several pertinent facts describing Route 60 at the vicinity of this accident. Route 60 is a paved, curvy two-land highway. It proceeds downhill at the site of this incident. There is a wide berm and a grassy area beyond the berm which is not considered by respondent to be a part of the berm. Beyond the grassy area, there is a drop off over the mountain. The width of the berm over a 100-foot section of the road extends from 11 feet with an additional 4 feet of grassy area to as wide as 16 feet with 4 feet of grassy area or a total of 20 feet wide in some places. There is also a culvert located approximately 6 to 10 feet below the road surface which protrudes from the bank on the mountain side. The ground surrounding the culvert is eroded. There is an indentation in the bank at the ground level as evidenced by a "half-moon" shape in the bank above the culvert. At the area of the culvert, the berm is approximately 11 feet and the grassy area beyond the berm is approximately 4 to 5 feet for a total area of 15 to 16 feet of ground. The tractor-trailer in which claimants were riding is approximately 8 feet in width.
Claimants contend that the bank at the area of the culvert gave way beneath the weight of the trailer when claimants were parked on the berm of Route 60 causing the rig to go over the mountain.
There is some confusion in the record as to exactly where the tractor-trailer went over the mountain. However, the Court is of the opinion that there was no evidence to support claimants' theory that the bank gave way beneath the weight of the trailer in the area of the berm and grassy area where the culvert is located. There were many photographs in evidence, as well as testimony from a law enforcement officer who was at the scene. No part of the shoulder or gravel area (the actual berm) had eroded, broken down or caved in any manner, but it is evident from the photographic exhibits that the berm sloped away from the paved portion of the road. The edge of the mountain does not appear to have broken away. To the contrary, it appears that the read right tires of the trailer may have been off the stabilized area, too close to the edge of the grassy area, and the rig, which weighed 75,000 or 76,000 pounds, tipped over the edge of the mountain of its own momentum. There was an area beyond the surface of the road at least 15 feet in width, and the rig was 8 feet in width. The berm area was wide enough in and of itself at a width of 11 feet to accommodate the tractor-trailer, and claimant, George Meisenhelder, would not have had to park the tractor-trailer on the grassy area beyond the berm. Therefore, the tractor-trailer would not have been near enough to the bank to tip over unless the rig was parked in the grassy area and at the edge of the bank.
The law of this Court in berm bases has been very consistent. Where a claimant uses the term of the road in an emergency situation, he may be entitled to recover damages if the berm is not maintained property by respondent. See Blankenship v. Dept. of Highways, 14 Ct.Cl. 194 (1982) and Cecil v. Dept. of Highways, 15 Ct.Cl. 73 (1984). Where a claimant proceeds onto the berm of his own accord, he takes the berm in the condition he finds it. See Sweda v. Dept. of Highways, 13 Ct.Cl. 249 (1980) and Cole v. Dept. of Highways, (Opinion issued Jan. 17, 1986). In the claim herein, claimants proceeded onto the berm by choice. There was no emergency. The Court is of the opinion that the berm on Route 60 at the location of the accident herein was maintained properly by respondent.
There being no finding of negligence on the part of the respondent, the Court is of the opinion to, and does, deny this claim.
Claim is disallowed. | [
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MILLER, Chief Justice:
Floyd Dolin was convicted by a jury in the Circuit Court of Kanawha County of first degree sexual assault. His main contentions are that the trial court erred in admitting evidence of collateral sexual offenses committed by the defendant upon the same victim and erred in its instruction to the jury on this evidence.
In the indictment returned in September, 1982, the defendant was charged with two counts of first degree sexual assault and one count of incest. The first count charged the defendant with forcing his daughter, who was then less than eleven years old, to perform oral sex on him. This count did not identify any specific dates, but merely alleged the acts had been committed within ten years prior to the date of the indictment. The second count charged the defendant with forcing his daughter to perform oral sex on him in January, 1981. The third count charged that the defendant had committed incest with his daughter under W.Va.Code, 61-8-12 (1931), within three years prior to the date of the indictment.
The trial court directed a verdict in favor of the defendant on the second count because of a variance between the facts alleged in the indictment and the evidence presented at trial. The jury acquitted the defendant on the third count, but convicted him on the first count of first degree sexual assault.
Prior to trial, the parties and the trial court agreed that the relevant time period under the first count which charged sexual intercourse with a person under the age of eleven years was between August, 1976, and August, 1978. This agreement was based on the fact that the sexual assault provision, W.Va.Code, 61-8B-3 (1976), did not become effective until June, 1976. Consequently, the defendant could not be charged with acts committed prior to its effective date. The outer limit of August, 1978, resulted from the fact that his daughter’s eleventh birthday was August 31, 1978.
The only evidence presented against the defendant was the uncorroborated testimony of his daughter, who was sixteen years old at the time of the trial in 1984. She related to the jury her version of the sexual activity forced upon her by her father. Generally, the daughter was unable to recall specific details as far as the time and the place of the sexual encounters relevant to the first count of the indictment.
The daughter was asked by the prosecutor whether she had performed oral sex on her father at any time between August, 1976, and August, 1978. In response to this question, she stated, “Maybe once or twice every three months. I can’t say just exactly, you know.” She also explained that during this time period the defendant ordinarily did not force her to perform oral sex, but usually rubbed his sex organ on her. During cross-examination, the daughter was unable to recall any specific instance during the relevant time period when the defendant forced her to perform oral sex on him.
The daughter testified in more detail regarding an incident that occurred in her home in January, 1981, when she was thirteen years old. She testified that before noon on that date, the defendant entered the house and forced her to join him in one of the bedrooms. The defendant penetrated her sex organ with his sex organ, rubbed his sex organ on her stomach, and ejaculated. The daughter stated this was the last time the defendant sexually assaulted her.
The defendant’s former wife testified that they were divorced November 9, 1977, and that the defendant was granted the right to visit his daughter. She also verified that the defendant did take their daughter to Parkersburg on one occasion and also verified another trip where the defendant was alone with their daughter. The daughter informed her mother for the first time on April 9, 1981, of the defendant’s sexual activity with her. After the former wife testified, the State rested its case..
The defendant took the stand and denied each specific instance of sexual activity alleged by his daughter. He also testified that he was at work on the occasion in January, 1981, when the daughter testified he had vaginal intercourse with her. This alibi was also supported by another defense witness. Furthermore, he denied the general allegation that he had forced his daughter to perform oral sex on him between August, 1976, and August, 1978. The defendant testified that he had never made any advances of a sexual nature toward his daughter.
The defendant’s chief complaint is that the trial court erred in permitting the daughter to testify about additional sexual offenses allegedly committed by the defendant on her which were collateral to the charges contained in the indictment. Once again we are presented with the difficult issue of whether evidence of collateral crimes should have been presented to the jury.
The general rule, as summarized in Syllabus Point 11 of State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974), is that subject to certain exceptions evidence of collateral crimes is inadmissible:
“Subject to exceptions, it is a well-established common-law rule that in a criminal prosecution, proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times, even though they are of the same nature as the one charged, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged, unless such other offenses are an element of or are legally connected with the offense for which the accused is on trial.”
In State v. Harris, 166 W.Va. 72, 76, 272 S.E.2d 471, 474 (1980), we explained some of the policy reasons behind this general rule:
“The rationale for the rule announced in Thomas is that when one is placed on trial for the commission of a particular offense, he is to be convicted, if at all, on evidence of the specific charge against him. The purpose of the rule excluding evidence in a criminal prosecution of collateral offenses is to prevent a conviction for one crime by the use of evidence tending to show that the accused engaged in other legally unconnected criminal acts, and to prevent the inference that because the accused engaged or may have engaged in other crimes previously, he was more liable to commit the crime for which he is being tried.”
Another reason underlying this rule is that the admission of collateral crime evidence is highly prejudicial and can result in a jury convicting a defendant based on his past misdeeds rather than on the facts of the present offense with which he is charged. Such evidence of past misconduct “cannot be used to demonstrate the character of ... the accused, in order to show that he has acted in conformity with his past acts.” F. Cleckley, Handbook on Evidence for West Virginia Lawyers § 6.3(A) at 343 (2d ed. 1986).
We acknowledged in Thomas that there are exceptions to the general rule prohibiting evidence of collateral crimes, which most jurisdictions, including our own, recognize. In Syllabus Point 12 of Thomas, we summarized some of these exceptions:
“The exceptions permitting evidence of collateral crimes and charges to be admissible against an accused are recognized as follows: the evidence is admissible if it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; and (5) the identity of the person charged with the commission of the crime on trial.”
Although we attempted to summarize the exceptions in Syllabus Point 12 of Thomas, we stated in its text “ ‘that there are so many exceptions to the rule [barring collateral crimes] that it is difficult to determine which is more extensive — the rule or its acknowledged exceptions.’ ” 157 W.Va. at 654-55, 203 S.E.2d at 455. (Citations omitted). Many federal courts have similarly held that in applying Rule 404(b) of the Federal Rules of Evidence, the exceptions to the admission of collateral crimes listed in the rule are not meant to be exhaustive. E.g., United States v. Lewis, 701 F.2d 972 (D.C.Cir.1983); United States v. Morris, 700 F.2d 427 (1st Cir.), cert. denied, 461 U.S. 947, 103 S.Ct. 2128, 77 L.Ed.2d 1306 (1983); United States v. Hinton, 543 F.2d 1002 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976); United States v. Woods, 484 F.2d 127 (4th Cir.1973), cert. denied, 415 U.S. 979, 94 S.Ct. 1566, 39 L.Ed.2d 875 (1974); 2 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 404[08] (1985); McCormick on Evidence § 190 (3d ed. 1984).
Before a trial court can determine that evidence of collateral crimes is admissible under one of the exceptions, we have established a procedure that should be followed. In State v. Nicholson, 162 W.Va. 750, 252 5.E.2d 894 (1979), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980), we pointed out that an in camera hearing is necessary to allow a trial court to carefully consider the admissibility of collateral crime evidence. Furthermore, we explained in Nicholson that an in camera hearing enables a trial court to properly balance the probative value of such evidence against its prejudicial effect, as stated in Syllabus Point 15 of Thomas:
“In the proper exercise of discretion, the trial court may exclude evidence of collateral crimes and charges if the court finds that its probative value is outweighed by the risk that its admission will create substantial danger of undue prejudice or confuse the issues or mislead the jury or unfairly surprise a party who has not had reasonable ground to anticipate that such evidence would be offered.”
In the present case, the trial court did hold an in camera hearing prior to trial to consider the admissibility of the collateral crime evidence. However, at the hearing, the specific collateral sexual offenses the State planned to present at trial and the possible applicable exceptions were simply discussed in general terms. The in camera hearing is rendered meaningless if a trial court is not informed specifically of the details surrounding each collateral offense and is not informed of which excep tion is applicable. A trial court needs such information so that it can examine the similarities and differences between the collateral offenses and the present offense and can apply the balancing test to determine whether the probative value outweighs the prejudicial effect of such evidence.
A further procedural point made by many courts is that a collateral crime need not be proven beyond a reasonable doubt, but must be proven by clear and convincing evidence. See, e.g., Manning v. Rose, 507 F.2d 889 (6th Cir.1974); United States v. Wormick, 709 F.2d 454 (7th Cir.1988); United States v. Wilford, 710 F.2d 439 (8th Cir.1983), cert. denied, 464 U.S. 1039, 104 S.Ct. 701, 79 L.Ed.2d 166 (1984); State v. Spargo, 364 N.W.2d 203 (Iowa 1985); State v. Ohnstad, 359 N.W.2d 827 (N.D.1984); State v. Parton, 694 S.W.2d 299 (Tenn.1985). We believe this is a sound rule and hereby adopt it.
Finally, in examining the similarities and differences between collateral crimes and the present offense charged, we have emphasized that the collateral crimes must have occurred reasonably close in point of time to the present offense. See, e.g., State v. Messer, 166 W.Va. 806, 277 S.E.2d 634 (1981) (per curiam); Syllabus Point 7, State v. Withrow, 142 W.Va. 522, 96 S.E.2d 913 (1957); Syllabus Point 3, State v. Gargiliana, 138 W.Va. 376, 76 S.E.2d 265 (1953); Syllabus Point 2, State v. Evans, 136 W.Va. 1, 66 S.E.2d 545 (1951); Syllabus Point 4, State v. Lewis, 133 W.Va. 584, 57 S.E.2d 513 (1949).
In examining the more narrow question of whether prior sexual offenses committed on the victim can be shown in the State’s case in chief, we find that our case law is not entirely harmonious. In several of our earlier cases, which involved rape against a female under the age of consent, we indicated, without any extensive discussion of the legal rationale, that such testimony was permissible to show an improper or lustful disposition toward the victim. Syllabus Point 3, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944); State v. Lohm, 97 W.Va. 652, 661, 125 S.E. 758, 761 (1924); Syllabus Point 8, State v. Driver, 88 W.Va. 479, 107 S.E. 189 (1921). In Syllabus Point 3 of Beacraft, the Court noted that the acts had to be “identical or closely similar” and were admissible to show an “improper disposition toward pros-ecutrix and to corroborate evidence of the. particular act relied upon.” It should be noted that in none of these cases did the Court discuss the rule prohibiting the introduction of collateral crimes.
In several later cases, we held without referring to these earlier cases that the introduction of such evidence was inadmissible under the general rule prohibiting the admission of collateral crimes. State v. Simmons, 175 W.Va. 656, 337 S.E.2d 314 (1985) (per curiam); State v. Moubray, 139 W.Va. 535, 81 S.E.2d 117 (1954); State v. Gargiliana, supra. In these cases, the collateral crimes did not fall into any of the exceptions permitting the admission of collateral crimes and, therefore, were found to be inadmissible. The improper or lustful disposition of the defendant toward the victim is not mentioned in these cases.
In other jurisdictions, cases can be found where courts have created what basically amounts to a sexual propensity exception under which other sexual acts not necessarily with the same person or dealing with the same type of sexual offense are permit ted to be introduced. We believe this approach contradicts the fundamental premise upon which the collateral crime rule is based.
To recognize a sexual propensity exception in addition to the numerous exceptions to the collateral crime rule would provide a convenient path to damage a defendant’s character and would sweep additional sexual offenses into evidence which would obviously prejudice and confuse a jury in its consideration of the crime charged in the indictment. What renders the reasoning of those courts which have adopted a sexual propensity exception so anomalous is their failure to acknowledge that sexual crime cases are by their very nature likely to be highly offensive to the average jury. Thus, the ability to further prejudice the jury by admitting additional collateral sexual offenses is even more apparent.
Bearing on this problem is the fact that the guilt of a defendant in a sexual offense case can be based solely on the uncorroborated testimony of the victim. We held in Syllabus Point 5 of State v. Beck, 167 W.Va. 830, 286 S.E.2d 234, 31 A.L.R.4th 103 (1981), that the uncorroborated testimony of the victim in a sexual offense case is sufficient to uphold a conviction, unless the testimony is inherently incredible. See also Syllabus Point 4, State v. Green, 163 W.Va. 681, 260 S.E.2d 257 (1979); State v. Golden, 90 W.Va. 496, 111 S.E. 320 (1922). For this reason, courts should be particularly wary of collateral sexual offense evidence and should be cautious in admitting such evidence.
For the foregoing reasons, we conclude it is impermissible for collateral sexual offenses to be admitted into evidence solely to show a defendant’s improper or lustful disposition toward his victim. This holding is not only in accord with our decisions in Simmons, Moubray, and Gargiliana, but also is supported by many commentators in the evidence field. Furthermore, several other courts have refused to adopt this propensity exception in sexual offense cases, choosing instead to analyze evidence of collateral sexual offenses under the general exceptions to the collateral crime rule. See People v. Tassell, 36 Cal.3d 77, 679 P.2d 1, 201 Cal.Rptr. 567 (1984) (in bank); State v. Moore, 440 So.2d 134 (La.1983); State v. Curry, 43 Ohio St.2d 66, 330 N.E.2d 720 (1975); Commonwealth v. Shively, 492 Pa. 411, 424 A.2d 1257 (1981).
We have consistently adopted a restrictive approach in admitting evidence of collateral crimes in criminal trials. For example, although the commentators contend that courts generally are quite liberal in admitting collateral crime evidence in narcotics cases, we have refused to admit such evidence in a number of narcotics cases. See, e.g., State v. Ruddle, 170 W.Va. 669, 295 S.E.2d 909 (1982); State v. Underwood, 168 W.Va. 52, 281 S.E.2d 491 (1981); State v. Messer, supra; State v. Harris, supra.
In a related area, we have held that a criminal defendant who testifies at trial may not be impeached by evidence of prior criminal convictions unless the convictions were for perjury or false swearing or making false statements with intent to deceive, which relate to his capacity for truthfulness. Syllabus Point 9, State v. Clements, 175 W.Va. 463, 334 S.E.2d 600, cert. denied, 474 U.S. 857, 106 S.Ct. 165, 88 L.Ed.2d 137 (1985); Syllabus Point 1, State v. McAboy, 160 W.Va. 497, 236 S.E.2d 431 (1977). This position is more restrictive than Rule 609 of the Federal Rules of Evidence. See generally 3 J. Weinstein & M. Berger, supra, 11 609[04].
It is apparent that if we are to remain consistent with the restrictive view we have adopted with regard to collateral crime evidence, we must not permit a defendant’s character to be assailed by broadening the exceptions to the collateral crime rule. To the extent that Beacraft, Lohm, and Driver allow collateral sexual offenses to be admitted into evidence to show an improper or lustful disposition toward the victim, they are overruled.
It must be remembered that from a procedural standpoint evidence admitted under one of the collateral crime exceptions is thought to be relevant to some aspect of the State’s case. Such evidence is not admitted as proof of the ultimate guilt of the defendant. For this reason, it is customary to give the jury a limiting instruction with regard to its consideration of a collateral crime. This instruction generally provides that the evidence of a collateral crime is not to be considered as proof of the defendant’s guilt on the present charge, but may be considered in deciding whether a given issue or element relevant to the present charge has been proven. When a defendant requests this limiting instruction, it must be given. State v. Pancake, 170 W.Va. 690, 694, 296 S.E.2d 37, 41 (1982).
In the present case, the basis for admitting the evidence of the collateral sexual offenses was to show intent, motive, and system. Each of these words carries a distinct and separate meaning and must not be used as blanket passports permitting the introduction of all collateral crime evidence. The term “intent” refers to the criminal intent of the defendant which is a material element of proof in many crimes. However, it is quite clear that there are certain crimes where criminal intent is not an element of the crime.
We have held this to be the case under our former incest statute, W.Va.Code, 61-8-12 (1931), which was one of the charges in this case. State v. Moubray, supra. Similarly, no specific showing of criminal intent was necessary as an element for the crime of rape since proof of doing the acts that constituted the offense was all that was required. See generally State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979); 75 C.J.S. Rape § 9 (1952). Furthermore, criminal intent is not a necessary element of our first degree sexual assault statute, W.Va.Code, 61-8B-3 (1976), under which the defendant was indicted in two separate counts.
Thus, we believe that in the present case, the evidence of collateral crimes should not have been admitted on the issue of intent because intent was not an element of any of the crimes charged in the indictment.
A good summary of the motive exception to the collateral crime rule can be found in 2 J. Weinstein & M. Berger, supra, ¶ 404[14] at 404-108 through -111, supported by a number of cases:
“Motive has been defined as ‘supply[ing] the reason that nudges the will and prods the mind to indulge the criminal intent.’ Two evidentiary steps are involved. Evidence of other crimes is admitted to show that defendant has a reason for having the requisite state of mind to do the act charged, and from this mental state it is inferred that he did commit the act. Evidence of another crime has been admitted to show the likelihood of defendant having committed the charged crime because he needed money, sex, goods to sell, was filled with hostility, sought to conceal a previous crime, or to escape after its commission, or to silence a potential witness.” (Footnotes omitted).
This motive exception sometimes arises in cases involving a charged offense that is not sexual in nature, such as kidnapping or murder, where the underlying motive was to obtain some sexual favor. E.g., United States v. Bradshaw, 690 F.2d 704 (9th Cir.1982), cert. denied, 463 U.S. 1210, 103 S.Ct. 3543, 77 L.Ed.2d 1392 (1983); United States v. Free, 574 F.2d 1221 (5th Cir.), cert. denied, 439 U.S. 873, 99 S.Ct. 209, 58 L.Ed.2d 187 (1978); United States v. Weems, 398 F.2d 274 (4th Cir.1968), cert. denied, 393 U.S. 1099, 89 S.Ct. 894, 21 L.Ed.2d 790 (1969). In State v. Miller, 175 W.Va. 616, 622 n. 8, 336 S.E.2d 910, 916 n. 8 (1985), we recognized that authority existed under kidnapping statutes similar to ours, which refer to taking the victim for any concession or advantage, that “sexual gratification is a sufficient ‘concession or advantage’ or ‘thing of value’ to satisfy the kidnapping statute.” (Citations omitted). In this situation, the collateral crime, i.e., the sexual offense, would be admissible.
However, where, as here, the main offense charged is sexual in nature, we do not believe that motive can be inferred from the fact that on prior occasions the defendant committed similar sexual acts with the same victim. Therefore, we conclude the collateral sexual offenses should not have been admitted to show motive.
The final theory on which the collateral crimes were sought to be introduced was to show a “system.” This term is too broad to permit any rational analysis. In Syllabus Point 12 of Thomas we used the phrase “a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others.” We discussed this exception at some length in State v. Frasher, 164 W.Va. 572, 265 S.E.2d 43 (1980), which involved an embezzlement scheme where several of the defendant’s personal checks used in the embezzlement scheme had been shown to be worthless. We concluded that while worthless checks might constitute a separate crime, this did not violate the collateral crime rule because the checks were introduced as an integral part of the proof of the embezzlement scheme.
We also pointed out in Frasher that proof of a collateral crime could occur in situations in the greater and lesser included offense area. The State in proving the greater offense could collaterally show the lesser offense and this would not violate the collateral crime rule simply because the State may ultimately decide to go to the jury on the lesser included offense. This was recognized in Syllabus Point 11 of Thomas, where we said “unless such other offenses are an element of or are legally connected with the offense for which the accused is on trial.” See also State v. Wallace, 175 W.Va. 663, 337 S.E.2d 321 (1985).
We think Thomas’s phraseology of “common scheme or plan” is the more appropriate terminology and conclude the collateral sexual offenses introduced in this case, varying as they do as to time and manner of the acts committed, should not have been admitted to show a common scheme or plan.
Based on the grounds urged for the admissibility of the collateral crimes in this case, we conclude they were not admissible. We recognize, however, that trial counsel may not have made a sufficiently particularized objection when this matter was brought before the trial court in the defendant’s motion in limine.
However, we conclude the trial court committed reversible error in improperly instructing the jury on this issue. The defendant offered an instruction informing the jury that any collateral sexual offenses committed by the defendant could only be considered in relation to the relevant considerations listed in Syllabus Point 12 of Thomas. Over the defendant’s objection, the trial court amended this instruction so that not all of the collateral offenses were covered.
We find this instruction to be flawed because the trial court cited only the collateral sexual offenses that occurred in Tennessee, Parkersburg, and prior to August 30,1976, as falling into this collateral crime category.
The problem with limiting the instruction to these specific collateral sexual offenses is that the jury was not told for what purposes the remaining instances of collateral crimes were to be considered. This error was particularly egregious because the jury might have considered the fifth incident, where the daughter was forced to perform oral sex when she was twelve or thirteen years old, as being included in the acts charged in count one of the indictment. By failing to limit all of the collateral crimes, the trial court confused the issue and left the jury free to consider the acts not mentioned as proof of the substantive charges. We believe that this constituted reversible error.
Therefore, because the trial court incorrectly' instructed the jury on the evidence of collateral sexual offenses, we reverse the defendant’s conviction in the Circuit Court of Kanawha County and remand this case for a new trial to be held in accordance with the principles discussed herein.
Reversed and Remanded.
. The relevant text of W.Va.Code, 61-8B-3(a)(3) (1976), provided:
“(a) A person is guilty of sexual assault in the first degree when:
******
“(3) He, being fourteen years old or more, engages in sexual intercourse with another person who is incapable of consent because he is less than eleven years old."
The term "sexual intercourse" is defined in W.Va.Code, 61-8B-1(7), to include oral sex.
. The daughter was able to recall six relatively specific instances of sexual activity, which were collateral to the crimes charged:
1. When she was seven years old, the defendant drove her in a van to a quarry, where he forced her to perform oral sex on him;
2. When she was eight or nine years old, after shopping for a new bicycle, the defendant took her to a motel in St. Albans and rubbed his sex organ on her stomach until he ejaculated;
3. In August of 1977, when she was ten years old, the defendant drove her to a remote location in South Charleston and rubbed his sex organ on her;
4. When she was twelve years old, the defendant took her on a shopping trip to Parkersburg, where they spent the night in a motel. During that night, the defendant rubbed his sex organ on her;
5. When she was twelve or thirteen years old, the defendant drove her to a hollow in South Charleston and forced her to perform oral sex on him; and
6. When she was twelve years old, the defendant drove her to Tennessee, where they stayed in a motel and he rubbed his sex organ on her.
As previously discussed, the first count of the indictment was limited to acts of oral sex committed between August, 1976, and August, 1978. The second count dealt with a specific incident of oral sex in January, 1981. The third count dealt with incest, which was defined in W.Va. Code, 61-8-12 (1931), in relevant part: “If any male person shall have sexual intercourse with his mother, sister or daughter." (Emphasis added). Consequently, under the former incest statute, none of the foregoing incidents of sexual activity would constitute incest. In 1984, the incest statute was broadened to include oral sex in the definition of sexual intercourse.
. In 2 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 404[04] at 404-28 through -29 (1985), this thesis is expressed as follows:
"Central to the Anglo-American system of criminal law is the concept that the accused must be protected against forcible inculpation — either through his words or proof of his past misdeeds. Closely analogous is the familiar rule that a man is innocent until proven guilty. One form of protection is constitutional — the privilege against self-incrimination. A second — which may not be constitutionally guaranteed but which is accepted by all American jurisdictions — is the exclusionary rule embodied in Rule 404; it renders inadmissible, as part of the prosecution’s evidence in chief, character evidence offered solely to show the accused’s propensity to commit the crime with which he is charged.” (Footnotes omitted).
. Rule 404(b) of the Federal Rules of Evidence is identical to our Rule 404(b), which became effective February 1, 1985, after the trial of this case, and states:
“Other Crimes, Wrongs, or Acts. —Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
. The applicable language from Nicholson, 162 W.Va. at 757, 252 S.E.2d at 898, is: "[T]he trial court should require the state to disclose in advance, in camera, any evidence of collateral crimes it intends to introduce at the trial. This disclosure is designed to permit the court to make the above determination relative to the probative value of such evidence.” See also State v. Headley, 168 W.Va. 138, 282 S.E.2d 872 (1981); State v. Messer, 166 W.Va. 806, 277 S.E.2d 634 (1981) (per curiam); State v. Haverty, 165 W.Va. 164, 267 S.E.2d 727 (1980); State v. Bush, 163 W.Va. 168, 255 S.E.2d 539 (1979).
. This same type of balancing test is now required under Rule 403 of the West Virginia Rules of Evidence, which provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” See F. Cleckley, supra, § 6.3(B)(2).
. The entire text of Syllabus Point 3 of Beacraft is: "In a prosecution for rape, evidence of acts prior and subsequent, identical or closely similar, to that upon which conviction is sought, is admissible to show that defendant entertained an improper disposition toward prosecutrix and to corroborate evidence of the particular act relied upon."
. Syllabus Points 1 and 2 of Moubray state:
"1. The general rule is that the State, in a criminal case, may not introduce evidence of a substantive offense committed by the defendant which is separate and distinct from the specific offense charged in the indictment.
“2. Upon the trial of an indictment for incest evidence of the commission by the defendant of other separate and distinct offenses of the same type or nature as the specific offense with which he is charged is inadmissible.”
. E.g., State v. Jerousek, 121 Ariz. 420, 590 P.2d 1366 (1979) (in banc); Jenkins v. State, 474 N.E.2d 84 (Ind.1985); State v. Spaulding, 313 N.W.2d 878 (Iowa 1981); State v. Craig, 219 Neb. 70, 361 N.W.2d 206 (1985); State v. Bernier, 491 A.2d 1000 (R.I.1985); Annot., 77 A.L.R.2d 841 (1961).
. Many of the commentators in the following list of articles are critical of the sexual propensity exception while others in this list attempt to explain how such evidence should be analyzed. See IA J. Wigmore, Evidence § 62.2 (Tillers rev. 1983); Gregg, Other Acts of Sexual Misbehavior and Perversion as Evidence in Prosecutions for Sexual Offenses, 6 Ariz.L.Rev. 212 (1965); Slough & Knightly, Other Vices, Other Crimes, 41 Iowa L.Rev. 325 (1956); Weissenberger, Making Sense of Extrinsic Act Evidence: Federal Rule of Evidence 404(b), 70 Iowa L.Rev. 579 (1985); Comment, Admitting Evidence of Prior Sex Offenses — A New Trend, 58 Nw.U.L.Rev. 108 (1963); Comment, Defining Standards for Determining the Admissibility of Evidence of Other Sex Offenses, 25 U.C.L.A. L.Rev. 261 (1977); Note, Admissibility of Other Offense Evidence in Abnormal Sex Crime Cases, 39 Calif.L.Rev. 584 (1951).
.See generally, 2 J. Weinstein & M. Berger, supra, ¶ 404[12]; 22 C. Wright & K. Graham, Federal Practice & Procedure § 5239 at’466 (1978).
. The McAboy restriction has been incorporated into Rule 609(1) of the West Virginia Rules of Evidence. In Syllabus Point 2 of McAboy, we also held: "Where a defendant elects to place his good character and reputation in issue at a criminal trial, prior convictions may then be introduced to impeach character and reputation."
. We need not for the purposes of this case survey the other sexual offense statutes contained in W.Va.Code 61-8B-1 through -12, to determine if criminal intent is an element. E.g., State v. Mitter, 168 W.Va. 531, 285 S.E.2d 376 (1981). It would appear that prior to the enactment of our present sexual offense law in 1976, we held that for a conviction of the crime of assault with intent to commit rape, it was necessary to prove an intent to rape. State v. Garten, 131 W.Va. 641, 49 S.E.2d 561 (1948).
Obviously, where a collateral offense tends to prove a necessary element of the sexual offense, such evidence should be admitted for that purpose. For example, in Syllabus Point 4 of State v. Pancake, supra, we held: “Evidence that a defendant committed violent or turbulent acts toward a rape victim or toward others of which she is aware, is relevant to establish her fear of her attacker that is a major element of proof of first-degree sexual assault. W.Va.Code, 61-8B-1(1)(b).” See also State v. Miller, 175 W.Va. 616, 623, 336 S.E.2d 910, 917 (1985). Because the sexual assault conviction in the present case was based upon the age of the victim rather than the victim’s fear of her attacker, this element of first degree sexual assault is not applicable to the present case.
. We recognize, but find inapplicable to the facts in this case, the theory that where a defendant commits a series of crimes which bear a unique pattern such that the modus operandi is so unusual it becomes like a signature, then evidence of such other crimes may be admissible. See, e.g., United States v. Medina, 761 F.2d 12 (1st Cir.1985); United States v. Hamilton, 684 F.2d 380 (6th Cir.), cert. denied, 459 U.S. 976, 103 S.Ct. 312, 74 L.Ed.2d 291 (1982); People v. Golochowicz, 413 Mich. 298, 319 N.W.2d 518 (1982); 2 J. Weinstein & M. Berger, supra, ¶ 404[16] at 404-128.
. Although we find the evidence of collateral sexual offenses to be inadmissible under the three exceptions argued below, we do not preclude the State from seeking to admit this evidence for some other valid reason if the State is able to establish that another exception is applicable.
. This instruction read as follows:
“The Court instructs the jury that any evidence of wrongdoing or of any similar act to the acts accused in the indictment may be considered by the jury but only in a limited form. The jury may not consider any similar acts, such as the alleged events of Nashville, Tennessee, the Parkersburg-Vienna, West Virginia area, or any alleged wrongdoing previous to August 30, 1976, for any purpose other than consideration of motive, intent, or propensity of improper disposition towards [the victim]. In all events, whether you believe the similar acts to have occurred or not, you may not convict the defendant unless you believe beyond a reasonable doubt of his guilt as accused in counts one and three of the indictment, consistent with the other instructions of the Court.”
. The instruction failed to cover the third and fifth collateral offenses which are described in note 2, supra.
. In view of our refusal to expand the collateral crime exceptions to include a sexual propensity exception, the language in the court’s limiting instruction referring to the right of the jury to consider the collateral sexual offenses to show the defendant’s propensity of improper disposition toward his daughter is disapproved.
. Because of our reversal of this case, we decline to address the defendant's argument with regard to the sufficiency of the evidence. | [
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Brannon, Judge:
J. M. Bingham, Edmund Ery, and David Elaherty were jointly indicted in the Circuit Court of Cabell county under section 10, chapter 148, Code 1891, called the “Red Men’s Act”, the indictment charging that they conspired together to inflict bodily injury upon R. B. Yowell, and did, in pursuance of the conspiracy, beat, wound, and greatly injure him. Bingham was tried separately, convicted, and sentenced to the penitentiary for three years, and has brought his case here.
Brief of counsel for the defendant specifies error in the rejection of certain evidence, but no bill of exception was taken on this specific ground, nor was it pointed out as a ground for a new trial when a new trial was asked; and, though I find the matter in the stenographer’s report of evidence? no finger pointed the judge to it, either by call for bill of exceptions on that point, or by specification in the motion for new trial, and we do not consider it. Brown v. Pt. Pleasant, 36 W. Va. 290 (15 S. E. 209); Gregory's Adm’r v. Railroad Co., 37 W. Va. 606 (16 S. E. 819); Halstead v. Horton, 38 W. Va. 727 (18 S. E. 953). The particular evidence must be specified out of the great mass.
Complaint is made that the two instructions following were given at the state’s request: Instruction No. 1: “If the jury believe from the evidence that the prisoner, Bingham, in pursuance of an understanding and combination between himself and Edmund Ery and David Elaherty, or either of them, assaulted R. B. Yowell in the night-time, on the street, in the city of Huntington, in this county, for the purpose of whipping him or doing him an injury, and did then and there inflict any punishment or bodily injury upon said Yowell, and the said Ery and Elaherty, or either of them, were present when said assault was so made and injury inflicted by said Bingham, and that they, or either of them, aided or abetted said Bingham in said assault, either by word or action, then they must find the prisoner guilty as charged in the indictment.” Instruction No. 2: “The court further instructs the jury that if they believe from the evidence in this case that the prisoner assaulted and beat R. B. Yowell, and inflicted upon him injury, in this county, on or about the night of November 25, 1895, and that David Flaherty and Edmund Fry were present when said assault was so made by said Bingham upon said Yowell, and that they aided and abetted said Bingham in said assault and battery, either by preventing others from interfering to prevent or stop said assault, or by assisting in administering punishment to said Yowell themselves, then they must presume that said assault was made and such injury inflicted in pursuance of a combination and conspiracy between said prisoner, Fry, and Flaherty; and the burden of proving that such combination and conspiracy did not exist, and that such assault was not made and such injury inflicted in pursuance thereof, is upon the prisoner, and unless he shows by clear, satisfactory, and convincing proof that such combination and conspiracy did not exist, or it appears from the whole evidence and circumstances of the case, then they must find the prisoner guilty.”
It is urged against those instructions that they assert the legal proposition that if oneperson assaults and injures another, and other persons are present, aiding and abetting, the jury may therefore find the fact that they had combined and conspired to do the wrongful act — in other words, find the fact of conspiracy, without other independent proof of conspiracy — whereas there should be proof first of the conspiracy, and then the acts done will be presumed to be done in pursuance of it, and the existence of the conspiracy can not be found merely from the presence of the parties, and the doing of the act by one, and the aiding and abetting by others. It is said that section 9 speaks of a conspiracy, and that section 10 says that if certain acts be done it shall be presumed that they were “in pursuance of such combination or conspiracy” — that is, such a conspiracy as by proof has been established under section 9 — and that it does not say it shall be taken to be in pursuance of a conspiracy. I do not think such a construction is the true construction of the statute. The position would do under the common-law, but the statute intended a change. As stated in State v. Porter, 25 W. Va. 685, when this act was passed, bands of men under the name of “Red Men,” “Regulators,” and “White Caps,” assuming to take the law into their own hands, and inflict punishment of the most grave character (even death) on those falling under their arbitrary bar of condemnation, afflicted certain sections of the state, and a desperate remedy was needed. They organized in secret, and appeared often in disguise. It was impossible often to establish their conspiracy. It was thought necessary, and not unwise, when these men were found together, engaged in these acts of lawless outrage, to assume that they were executing a prearranged programme — a reasonable and natural presumption. The last two clauses of section 10 plainly show this aim and intent. I do not understand that any question is raised of the constitutionality of those clauses declaring that if two or more persons unite in the acts specified in that section, it shall be taken that they are conspirators acting in pursuance of a formed conspiracy, but only a question of their construction is intended to be raised. I shall not, therefore, discuss the constitutional question. An examination has satisfied me that no objection to the act on that score can be raised, as I think will appear form Board v. Merchant, 103 N. Y. 143 (8 N. E. 484); People v. Cannon, 139 N. Y 32 (34 N. E. 759); Id., 36 Am. St. Rep. 668, and full note; Wooten v. State (Fla.) 1 L. R. A. 819 (5 South. 39;) State v. Beswick (contra) 13 R. I. 211; Com. v. Williams, 6 Gray, 1; State v. Higgins, 13 R. I. 330; State v. Mellor, Id. 667; 1 Bish. Cr. Proc. § 1090; Whart. Cr. Ev. § 715; Cooley, Const. Lim. 367. In the absence of a statute provision, it might be argued that when several persons unite in violence to another, it is in pursuance of a conspiracy, as it may be argued that the recent possession of stolen goods shows their possessor to be the thief; and these two arguments would rest on principles of logic or probability in the particular cases, and, if ajury should find in favor of those arguments, they would be instances of presumption of fact, not of law — that is, the fact of joint attack or recent possession afforded grounds of presumption that there was conspiracy, or that the possessor of the goods stole them. This presumption would be one of fact, and not of law. State v. Heaton, 23 W. Va. 773, 782. Tbe legislature may-convert a presumption of fact into one of law, and has done so by this statute, in section 10. Whart. Cr. Ev. §§ 714, 715. But for this conversion of a presumption of fact into a presumption of law, instruction No. 2 would be bad, because it makes what at most would be a presumption of fact a presumption of law,aud would make the court invade the province of the jury, by instructing it to give particular effect to particular evidence, as held in State v. Heaton, supra; but, the law having given it a certain effect, the court may, as a matter of law, tell a jury it has that effect. That it has that effect is, by force of the statute, now a presumption of law. But it is of that class of presumptions of law called provisional or rebuttable presumptions — not conclusive. Other circumstances of the state’s case, or evidence adduced by the defendant, may repel that presumption. The door is open to such circumstances or such evidence to repel the presumption of combination or conspiracy. By no provision found in it can we say that it intended to make such presumption conclusive. If we were to construe it as making the presumption conclusive, it would be unconstitutional; but, not so construing it, it is valid. Vought v. State, 124 Ind. 358 (24 N.E. 680); State v. Thomas, 47 Conn. 546. These cases and authorities cited above show that such statutes are construed as creating only a rebuttable presumption of law, allowing the defendant to repel it. In general, presumptions of law are rebuttable. 1 Greenl. Ev. § 33; Whart. Ev. §§ 711, 713. And between two constructions we must give that which avoids the conflict with the constitution. State v. Workman, 35 W. Va. 367 (14 S. E. 9). Objection is made to the words, “satisfactory and convincing proof,” in instruction No 2. I would not hold it bad for that cause. Still they intensify the degree of proof, perhaps, and, as the statute uses the word “satisfactory,” that would be sufficient.
State’s instruction No. 3 is challenged as bad. Instruction No. 3: “If the jury believe from the evidence in this case that J. M. Bingham and Ery and Flaherty, or either Fry or Flaherty, assaulted and injured E. B. Yowell,in said derstanding entered into by them, either before they reached the place where said assault was committed, or after they reached there, to do said Yowell bodily harm or injury, then it is immaterial who was the aggressor in said conflict, or who brought on said assault and conflict.” We hold it bad. Such a conspiracy merely as that charged in the indictment would be indictable under section 9, without acts of execution, and, if the instruction had been limited to a conviction for a misdemeanor, it would he good; but the party was being tried for felony, under section 10. Now, parties may conspire to do a crime, yet not do it. If, under this statute, they stop before its commission, there is no felony. If Bingham and his alleged confederates were on the ground, full bent on executing the alleged conspiracy, yet, before overt act, Yowell in fact made an assault on Bingham justifying self defense, I do not see how Bing-ham would be guilty of the felony contemplated by the statute. I do not see how the wrong of forming a conspiracy would go so far as to taint his whole action with felony, and take away the right of self defense born of Yowell’s act before any overt act of Bingham’s towards executing the plan of conspiracy. You could not attribute .Bingham’s acts, under such circumstances, solely to the conspiracy, and not to the exercise of the right of self defense. Bingham’s evidence was that Yowell made the first assault, and delivered a blow with his cane; and it was error to tell the jury as a matter of law, that if even Yowell did so the fact was immaterial. The instruction ought not to have been given.
I think there is no error in refusing defendant’s Nos. 4,5, and 6. No. 4 is bad because ittells the jury that, if not satisfied that a conspiracy existed, they must find not guilty, which would be true as to felony, but not true as to assault and battery, which was a minor offense well charged within the major pífense alleged in the indictment. I do not say that Nos. 5, and 6 are bad, but all they contemplated or postulated was covered by Nos. 1, 2, and 3 given for the defendant. A court need not — ought not to — give innumerable instructions. They produce confusion of mind in the jury. Even expert lawyers and judges are scarcely able county, in pursuance of a combination, conspiracy, or unto discriminate between numerous ones, when properly given. Good cases are often lost in the circuit and appellate courts by instructions better out of them. When instructions given, no matter on which side, fairly and clearly lay down the law of the case, it is not error to refuse others on the same points, though good. Nicholas’ Case, 91 Va. 742 (21 S. E. 364). An instruction need not be repeated, if substantially already given. Kerr v. Lunsford, 31 W. Va. 659 (8 S. E. 493).
Without indicating any opinion on the merits, on the evidence, we reverse the judgment, set aside the verdict, and remand the case for a new trial. | [
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Snyder, Judge,
announced the opinion of the Court:
The appellant insists that there was no error on the face of the report, and, consequently, so much of it as was not excepted to by either party is presumed to be admitted by them, respectively, to be correct, and that it was, therefore, error for the court to remodel and restate the whole account without reference to the position taken and occupied by the parties in relation to said report.
The party complaining of a commissioner’s report must point out the error of which he complains by exceptions thereto so as to direct the mind of the court to it, and when he does so the parts not excepted to are presumed to be admitted to be correct, not only as regards the principles but also as to the evidence on which such parts are founded.— McCarty v. Chalfant, 14 W. Va. 531; Chapman v. P. & S. R. R. Co., 18 Id. 185.
A commissioner’s report, if erroneous on its face, may be objected to on the hearing, though not excepted to; but without such exception it cannot be impeached by adult parties on grounds and in relation to matters, which may be affected by extraneous testimony. McCarty v. Chalfant, supra; Hyman v. Smith, 10 W. Va. 298. When adult defendants fail to except to a repoi-t of a commissioner they are deemed to acquiesce therein, and they will not be permitted to impeach it either at the hearing of the cause or in the appellate court except for errors apparent upon its face. Wyatt v. Thompson, 10 W. Va. 645; Laidley v. Kline, 8 Id. 218; Penn v. Spencer, 17 Gratt. 85; Ogle v. Adams, 12 W. Va. 213.
In Perkins v. Saunders, Tucker, Judge, in delivering the opinion of the court says: “ I have considered it as a settled principle that this court will not enter into an examination of accounts referred to a commissioner, and settled by him, unless an exception to them has been taken in the court of chancery, nor then, unless the exception be so stated as that this court may decide upon the equity, or legality, of the principle only, upon which the article is admitted or rejected, without wasting their time in adjusting the particulars of a long and intricate account — a business which is the peculiar province of a commissioner and accountant — and which, if this court were to admit themselves to be bound to engage in, would in a year or two put a total stop to the administration of justice in civil causes in this commonwealth.” 2 H. & M. 422; 14 W. Va. 559.
The foregoing principles, for the most part, have reference to appellate courts, but it seems to me the same reasons, which make them proper and necessary for the disposal of the business in those courts, would require their observance in courts of original jurisdiction, the judges of which have as little and, perhaps, less time and fewer facilities for making calculations and unravelling tedious details of complicated accounts. The main object of referring a cause to a commissioner is to relieve the court of such labors. In almost every settlement a large portion of the items are undisputed, and the commissioner having the parties before him can more readily than the court ascertain and eliminate the undisputed from the controverted matters, and then report upon the whole according to his best judgment, leaving it to any party dissatisfied with any part of the report to except thereto, so as to direct the mind of the court to the precise subject of dispute. In some instances the controversy is confined wholly to questions of law and in others to matters of fact. In either case, if the parties are sui juris, and no error appears on the face of the report, it is taken to be 'prima fade correct, and, if no exception is taken thereto, it is confirmed as of course without an examination of the proofs by the court. This is done upon the presumption that the parties by making no objection concede the correctness of the report. And for the same reason, if any part of the report, or separate items thereof, remains unexcepted to such part, or such items, will be regarded by the court, and may be treated by the parties as admitted to be correct. The court will not permit any party to impeach a report, correct on its face, as to any matter which may be affected by extraneous evidence unless notice has been given thereof by exception before the hearing. The evident purpose of this rule is to prevent surprise and require the parties to deal frankly with each other and not permit the laying of a trap to obtain an.undue advantage at the last moment when all explanation is precluded. It is just as essential to the ends of justice and the due administration of the law that the court should observe this rule as it is for the court to require its observance by the parties. If the court can at the hearing ignore the report and disregard the effect thereof as to the parts not excepted to, the surprise upon the parties may be as great and the result as detrimental as if the court, at the instance of a party, had permitted objections to be taken at the hearing as to matters not excepted to and which might be affected by extraneous evidence. It seems to me, therefore, that the report of a commissioner on the face of which no error appears, and which is made in a cause rightly referred, must be treated by the court as well as the pai’ties, at the hearing, as correct, not only so far as it settles principles, but, also, in regard to the sufficiency of the evidence upon which it is founded, except in so far, and as to such parts thereof, as ob jection may have been taken by proper exceptions filed by any party; and the court is as much bound by the report so unexcepted to, in whole or in part, as are the parties themselves, and it is error for the court, at the hearing, to remodel and restate the whole account without reference to the report or the action of the parties in excepting or not excepting thereto. If in any case the court is not satisfied with the report in regard to matters not excepted to and which might be affected by. evidence aliunde, it should recommit it with instructions indicating its opinion, so that the respective parties might have an opportunity of meeting any new phase of the matters thus suggested.
In the case at bar I am of opinion, that the complicated condition of the accounts between the parties and the voluminous and contradictory character of the testimony in relation thereto fully warranted the reference to a commissioner. The parties are all sui juris; and they having availed themselves of their legal rights by excepting to such parts of the report, as they deemed to be erroneous, the parts not excepted to -were presumed to be admitted by them to be correct. In this condition of the cause the court made a statement oi the accounts between the parties which it made the basis of the decree of December 6, 1879. This statement was obviously made without reference to the report or the exceptions filed thereto. It seems to be founded entirely upon the court’s estimate of the proofs in the cause, because it introduces items not allowed by the commissioner and not excepted because not allowed, and it excludes others allowed by the commissioner and not excepted to by any party. The parties, in the absence of any exception had a right, as we have seen, to rely upon the sufficiency of the evidence to sustain such parts of the report as were not excepted to; consequently, the court erred in disregarding the report and entering a decree lounded on its own statement of the accounts between the parties without reference to said report or the implied admissions therein of the parts not excepted to, especially as the facts might have been explained or changed by extrinsic evidence.
Proceeding now to dispose of the exceptions to the report of Commissioner Jones as the circuit court should have done, this Court is of opinion that the plaintiff’sj/irsi, second, fourth and fifth exceptions and the seventh in part, are well taken and must be sustained. The first, because the rule upon which the commissioner computed the interest on the balances therein specified amounts to compounding and is, therefore, illegal and erroneous. The proper rule for computing interest, where partial payments have been made, is to deduct the payment from the aggregate sum of principal and interest, computing the latter to the date of the payment, and the balance forms a new capital; on that interest is to be computed from that time to the next payment, and so on for each payment; but with this caution, that the new capital be not more than the former, so that if the payment be less than the interest due at the time, the excess of interest must not augment the remaining capital, because that would be to give interest upon interest which would be unlawful. 'When the payment is less than the interest accrued on the principal at the date of the payment, no stop should be.made, but the interest should be computed until the payments, whether one or more, are sufficient to absorb the whole of the interest and then the same should be deducted from the sum of principal and interest — Lightfoot v. Price, 4 H. & M. 431; Hurst v. Hite, 20 W. Va. 183.
The second, and fourth because Washington G. Ward in his answer to the plaintiff's bill expressly admits that the plaintiff paid for him thirty-seven dollars and fifty cents to Caleb Boggess and sixty-five dollars to R. S. Ward.
The fifth, because the one thousand dollars referred to in this exception was charged on the account presented to said Washington G. Ward in 1869, when a settlement was attempted between said Ward and the plaintiff, and it was, also, asserted in the plaintiff's bill and charged on the account filed therewith, and its correctness was not questioned except by implication, in the answer of said Washington Gr. Ward to plaintiff’s bill, although he specifically and expressly disputed many other items of said account of smaller'amounts and less importance. Nor was its correctness disputed by said Ward at said attempted settlement or objected to so tar as can be ascertained from the testimony of A. Hutton and the defendant Jacob Gr. Ward both of whom were present on that occasion. The sum is so large that it is not at all probable it would have been allowed to stand without objection on these occasions, while a number ot smaller items were objected to and declared erroneous, unless it had been a proper charge. I am very much inclined to believe that this one thousand dollars represents the payment referred to in the deposition of IT. Snyder as paid by him for the plaintiff to said Ward. The sum is not precisely the same hut the small difference may be readily accounted for by the interest which accrued between the date at which it is charged and the time of the actual payment by Snyder. The title-bond given but a few weeks before required a payment in excess of this sum at the date of this charge. It is not likely that the plaintiff’ would wholly fail to meet any part of such a large payment upon a contract so recently made. It is more likely the arrangement to meet it had been made at the time the contract was entered into. I think, therefore, this item of one thousand dollars, paid November 1, 1857, should be allowed.
The seventh exception, except as to the item of ten dollars, alleged to have been paid in October, 1865, should be sustained. The said item of ten dollars was disputed in the answer of Washington G. Ward and is proved to be incorrect by <T. G. Ward to whom it is alleged it was paid. Neither of the other items in said exception are expressly denied by said W. G Ward in his answer to plaintiff’s bill, nor does it appear that he objected to any of them when presented to him by Hutton for settlement in 1869, although other items on the account were then disputed.
The pffaintiff’s third, sixth and eighth exceptions must be overruled. The third, because the two hundred and fifty dollars therein referred to was denied and declared erroneous by W. G. Ward when presented to him by Hutton, and there is no evidence to sustain said item or controvert said denial.
The sixth is not well taken for the reasons hereinafter stated in considering the defendant’s exception. And the eighth is simply an assertion in regard to the evidence and is too general and indefinite to constitute a sufficient exception to a report. Sandy v. Randall, 20 W. Va. 244.
The defendant’s exception to said report must be sustained, because tbe proof, if it has any relation whatever to the one thousand five hundred dollars excepted to, is wholly insufficient to establish it as a proper charge. The circumstances tend strongly to cast suspicion upon this item and the seven hundred dollars mentioned in the plaintiff's sixth exception, if they do not fully condemn them. It is shown conclusively that neither of these large items was charged on the account of the plaintiff, which was furnished to A. Hutton in 1869 to settle by, nor was either on the account as originally filed with 'the plaintiff’s bill. They were not on said account when Washington Gf. Ward answered the bill; and they were never claimed or asserted until after the death of said Ward, who was, perhaps, believed to be the only person that could show their injustice. After the death of the original defendant they seem to have been surreptitiously added to the account filed with the bill at the foot of the other charges. In the answer subsequently filed by the executor, Jacob G. Ward, he positively denies the correctness of both these items. The testimony by which they are attempted to be supported is altogether too vague and conjectural to establish such large items which, if correct, it may well be presumed could be proved with more certainty. J. W. Marshall, by whom it is alleged the one thousand five hundred dollars was paid, proves nothing in support of any such payment. His testimony may relate to a different transaction and with equal propriety might be invoked to prove any other charge on the plaintiff’s account. Much of the other testimony is very improbable and much discredited if not successfully impeached by the defendants’ proof and the circumstances in the cause. Hpon a careful consideration of all the evidence I am clearly of opinion that the said items of seven hundred dollars and one thousand five hundred dollars should each be disallowed.
I am, therefore, of opinion, for the errors aforesaid, that the decree of December 6, 1879, should be reversed with costs to the appellant against the appellee, Jacob G. Ward, executor of Washington G. Ward, deceased, to be levied of the goods of his testator in his hands to be administered, and that the cause be remanded to the said circuit court of Han-dolph county with directions to said court to recommit the report of Commissioner Jones to him or some other commissioner with instructions to such commissioner to reform said report and account and ascertain the balance between the plaintiff and the estate of said Washington G. Ward, deceased, according the principles of this opinion and report to said court; and that the cause be further proceeded in in said circuit court in accordance with the rules and practice in courts of equity.
Judges Johnson and Green Concurred.
Decree Reversed. Cause Remanded. | [
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Fox, Judge:
On April 20, 1937, an election was held in the City of Clarksburg, to select a member of the Water Board and a member of the council from each of the nine wards of the city. In the election of the member of the Water Board, the voters of the entire city participated. Members of the council were selected by the voters of their respective wards. The term of the members of the council then in office was to end April 30th, following the election, and that of the new council to begin on the next succeeding day. Under the charter, the council in office constituted the Board of Canvassers to determine and declare the result of the election. In the seventh ward of the city, E. L. Simpson, the petitioner, and Paul W. McKinney, appellant herein, were candidates of the Democratic and Republican parties, respectively, for the office of councilman, and their names appeared on the ticket voted in that ward. Immediately under each of their names was the name of the candidate of their party for a member of the Water Board. No other names appeared on the ticket. At the head of the ticket were the respective party emblems, and immediately below each, the circle in which the voters might make a cross and vote a straight ticket, and the tickets were then designated as “Democratic” and “Republican” tickets. To the left of the name of each candidate was placed a square in which the voters could put a cross, indicating their intention to vote for a certain candidate. The vote in the seventh ward was close. A canvass of the returns showed 871 votes for Simpson and 867 votes for McKinney. A recount was demanded by McKinney, during the progress of which questions were raised as to several ballots with the result that, as these questioned ballots were counted or rejected, it appeared that Simpson and McKinney had each received 869 votes. To reach this result the Board of Canvassers rejected as void and of no effect a ballot cast by a voter who placed a cross in the circle under the Republican emblem, and also placed a cross in the square before the name of Simpson and the Democratic candidate for member of the Water Board in the Demcoratic ticket. Simpson contended that the voter intended to vote for him; that the ballot should have been counted for him and if counted, would have shown his election.
The recount was not completed until early in the morning of April 30th and the Board of Canvassers recessed until six o’clock in the evening of that day. When convened, notice was served on the members of the Board that the petitioner herein would apply to the judge of the circuit court of Harrison County for a mandamus. The notice did not state the character of the writ sought, but along with it was delivered a copy of the petition which was afterwards filed, and which appears in the record of this proceeding, and which did set out that a writ would be asked to compel the Board to count for Simpson the disputed ballot above described, and declare his election. Later in the evening said petition was filed and a rule in mandamus (improperly termed in the record an alternative writ) was issued, returnable to 10:30 o’clock P. M. of that day. In the meantime, after the service of the notice and petition, and before the issuance of the rule in mandamus, the majority of the council met and declared the election of McKinney by the process of breaking the alleged tie as the city charter provided could be done. The defendants in the petition were nine councilmen then in office and who made up the Board of Canvassers, the city manager, the acting city clerk, and the appellant herein, Paul W. McKinney. An attempt was made to serve the rule on the defendants named therein. For some reason a majority of them were absent from their usual haunts that evening. Three of the eouncilmen appeared and waived service of the writ; no return of service was made as to two of them; two were served by delivery of the process to their respective wives; and the remaining two by the posting of the writ on the front door of their usual place of abode. It was served on the wife of the city clerk, and Paul W, McKinney, the party especially affected by the proceeding, appeared to the writ as will hereafter be developed.
At 10:30 P. M. McKinney made a special appearance by counsel and moved to quash the rule. The grounds for this motion are not set out in the record, but it is stated in the brief of appellant that one of the grounds was the failure to secure personal service of the rule on a majority of the Board of Canvassers. This motion to quash the writ was overruled, and McKinney, without waiving the benefit of his special appearance, then appeared generally and asked the court for a reasonable time in which to prepare and file his written demurrer and answer. By this time it was 11:50 P. M. and within ten minutes of the expiration of the term of office of the members of the council constituting the Board of Canvassers and who were named as defendants in the proceeding. The court refused McKinney’s request for time to prepare and file his demurrer and answer, and entered an order awarding a peremptory writ of mandamus commanding the casting of the disputed ballot for Simpson and a declaration that he was elected as a member of the council from the seventh ward, thus depriving McKinney of the office to which he had been declared elected. The reason for the court’s order, as it appears therefrom, is “* * * that after the notice of the petition for a writ of mandamus was served upon the Board of Canvassers of the city of Clarksburg, West Virginia, and other defendants, and after the time said notice was returnable, but before the alternative writ was entered by the undersigned judge, the said Board of Canvassers did declare Paul W. McKinney elected to the office of councilman of the seventh ward of the city of Clarksburg, and the undersigned judge further assigning as his reason that the present personnel of the said Board of Canvassers would change immediately after midnight of this day, and that it was then within ten minutes of midnight. * * * .”
To this order this writ of error is prosecuted in this court.
In view of the course which this case must take, the question of service of. the rule of mandamus on the individual members of the Board of Canvassers becomes moot, because such members are no longer in office, and any action which may be taken on the merits of this controversy must be carried out by the council now in office. However, the case of State ex rel. Lorentz v. Pierson, 86 W. Va. 533, 103 S. E. 671, is strongly persuasive to the effect that substituted service is sufficient unless it is sought to be made the basis of contempt proceedings, in which case personal service is necessary. The adoption of this rule is more easily justified where the person who is substantially affected by the controversy has been served with process or appears in the case to defend his rights.
On the record presented, two questions remain for consideration. First, the practical question of how the disputed ballot should have been counted and, second, whether or not Paul W. McKinney, the appellant herein, had an opportunity in the court below to have his contentions heard and passed upon by that court. We think the practical question as to the validity of the disputed ballot is secondary in gravity to the question which involves the privilege of every person to a reasonable opportunity to be heard in defense of his rights.
One of the treasured principles of our system of government is that no citizen shall be deprived of life, liberty or property without due process of law. These rights are guaranteed by the fifth and fourteenth amendments to the Federal Constitution, one prohibiting any encroachment thereon by the national government, the other acting upon the states. Our own constitution provides that “No person shall be deprived of life, liberty or property without due process of law and the judgment of his peers.” Section 10, Article 3, Constitution. These constitutional provisions are broad enough to embrace all character of rights, whether or not they may technically be called property rights. In Moore v. Strickling, 46 W. Va. 515, 33 S. E. 274, 50 L. R. A. 279, it was held that a public office is not property within the meaning of our state constitutional provision above quoted, in which case contention was that the defendant was entitled to a jury trial, but the broader and more accepted view is as held in Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595, 46 L. R. A. (N. S.) 796.
“The right to an office, though not a vested property right, is property in that broad sense which includes everything of pecuniary value to its possessor; but whether property in the broad sense, or merely a privilege, it is within the protection of the foregoing rule and within the constitutional guaranty of the state Constitution and guaranties of due process of law and equal protection of the laws of the Federal Constitution.”
Among the fundamental rights enforced by courts in all jurisdictions, and from time immemorial, are those of notice and hearing, and equally as much stress is laid upon one as the other. Notice without opportunity to be heard would be a vain thing. The office of notice is to afford an opportunity for hearing, and the two must necessarily go together. There can be no due process of law without a fair and reasonable opportunity for a hearing on the matter in dispute. These principles are clearly stated in 6 Ruling Case Law, 446.
“The essential elements of due process of law are notice, and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. In fact one of the most famous and perhaps the most often quoted definition of due process of law is that of Daniel Webster in his argument in the Dartmouth College case, in which he declared that by due process of law was meant ‘a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.’ Somewhat similar is the statement that it is a rule as old as the law that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is fairly administered.”
The above quotation embraces the familiar and classic definition of due process of law used by Daniel Webster in the Dartmouth College case, and is the generally accepted definition of that invaluable safeguard. Further reference is made to Ekern v. McGovern, supra:
“The established principles of justice, except as otherwise constitutionally provided by statute, secures to every person the right, before being condemned, as to his person or his property, as to anything materially affecting his constitutional right to life, liberty, and the pursuit of happiness, to reasonable notice of a hearing in respect of the matter, reasonable notice of the charges against him, reasonable opportunity to be heard by himself, his witnesses and his counsel, to know the opposing evidence and oppose it with evidence according to the principles of fair judicial investigation, and to have the final determination grounded on evidence in some reasonable view supporting it.”
The following authorities still further illustrate the principle. Brannon, Fourteenth Amendment, p. 188; Kinney v. Beverley, 2 Hen. & M. (Va.) 318. See also Underwood v. McVeigh, 23 Gratt. (Va.) 409, wherein Judge Christian, speaking for the court on the question of opportunity for defense, said:
“It lies at the very foundation of justice, that every person who is to be affected by an adjudication should have the opportunity of being heard in defence, both in repelling the allegations of fact, and upon the matter of law; and no sentence of any court is entitled to the least respect in any other court, or elsewhere, when it has been pronounced ex parte and without opportunity of defence. An examination of both sides of the question, and deliberation between the claims and allegations of the contending parties, have been deemed essentially necessary to the proper administration of justice by all nations, and in every stage of social existence.”
These are only a few of the authorities selected to show our adherence to these fundamental principles and further discussion is not considered necessary. No one, we think, will question the soundness of this position; and only seeming emergency at the time of the entry of the order in the court below refusing McKinney time in which to prepare and file his demurrer and answer could have appealed to that court as warranting entry of said order. The order was not justified by the situation then existing. The fact that the term of office of the members of the then existing Board of Canvassers would expire at midnight, and within ten minutes from the time of the entry of the order complained of, would not and could not have destroyed whatever right the petitioner had to have cast for him the disputed ballot, in the event the court should have been of the opinion that he was entitled to that ballot. As a practical matter, the action commanded by the court below could not have been carried out within the term of office of those against whom the writ was directed, but it could only have been carried out by those who would succeed these officials as councilmen, and who would ex officio assume the duties of a Board of Canvassers and be required to carry out whatever action the court might command. The court below had taken jurisdiction of this matter and was entitled to enforce its judgments regardless of any change in the personnel of the Board of Canvassers. The fact that the members of the Board of Canvassers and of the city council, after receiving notice that a mandamus would be applied for to require them to count the disputed ballot for Simpson, ignored this notice and proceeded to declare the election of McKinney, while possibly arbitrary on their part, furnishes no sufficient excuse to deprive McKinney of his right to be heard in defense of his claim to hold the office which the council had attempted to give him. From the record here presented, it would appear that whether or not Simpson was elected depends upon how one ballot is disposed of; but it is contended that other questions were involved in the controversy over this office, that in the recount other ballots were questioned and, of course, we Cannot say what other questions would have arisen had McKinney been permitted to file his demurrer and answer. We cannot say what his rights were because he •was not permitted to assert them, and in refusing this permission, he was deprived of a right guaranteed to him by the common law and by the provisions of our state and national constitutions. Holding these views, we are not disposed to consider the question raised on the particular ballot described in the petition until the appellant is given an opportunity in the circuit court of Harrison County to present his answer to the petition in this case and have a hearing thereon in that court.
If, upon a proper hearing, that court should be of the opinion that McKinney was legally elected, the declaration to that effect, made by the former council, will stand, unless appealed from and reversed. If, on the other hand, that court be of the opinion that the discarded ballot should have been counted for Simpson, and that he should have been declared elected, it has undoubted power to require that declaration on the part of the council now in office, subject, of course, to the right of appeal, and this controversy will in that manner be settled, according to the principles of the common law and our constitutional provisions guaranteeing to the parties involved that due and orderly process of law which is the cherished safeguard of every citizen against undue encroachments upon his rights and liberties.
The case is therefore remanded to the circuit court of Harrison County with instructions to permit the filing of such matters of defense as the appellant, McKinney, may be advised to file, and for the purpose of having a full hearing on the matters in controversy herein.
Reversed and remanded. | [
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McHUGH, Justice:
This case is before this Court upon appeal from the declaratory judgment order entered on October 17, 1983, by the Circuit Court of Kanawha County, West Virginia. This Court has before it the petition for appeal, all matters of record, and the briefs and oral argument of counsel.
I
On or about January 16, 1977, the appellant, Clarence Shamblin, d/b/a Shamblin’s Mobile Cleaning, purchased an automobile liability insurance policy from the appellee, Nationwide Mutual Insurance Company. At all times relevant herein, the insurance policy remained in effect. In addition to covering other vehicles, the policy specifically covered the appellant’s three vehicles mentioned herein. For each of these vehicles the appellant paid a separately computed premium, and coverage for each vehicle under the one policy included the following: automobile bodily injury liability— $100,000 limit for each person, $300,000 limit for each occurrence; automobile property damage liability — $50,000 limit for each occurrence.
On or about April 10, 1979, the appellant’s employees, Messrs. Owens, Beller, and Haynes, were driving three of the appellant’s vehicles in the scope and during the course of their employment. There was evidence that during the trip together these three drivers had communicated with each other by citizens band (“CB”) radios to signal each other as to when it was clear to pass other vehicles. At a certain point during their trip Owens was advised over his “CB” radio by another driver, allegedly one of his fellow employees (Beller or Haynes), who had already passed another truck, that it was safe for Owens to pass the same. In attempting to pass the other truck Owens collided with the same and another vehicle. The driver and passenger in the latter vehicle were injured in the collision, and the driver brought a civil action for the injuries in the Circuit Court of Kanawha County, West Virginia. The jury in that action awarded the plaintiff therein $775,000.00 in damages and apportioned 90% of the liability for the same to the appellant herein.
During the pendency of the personal injury action against the appellant, the appel-lee informed the appellant that the automobile liability insurance policy limits for bodily injury and property damage for each vehicle would not be available to the appellant even if it were determined that more than one of the appellant’s vehicles contributed to the accident. The appellant consequently commenced a declaratory judgment proceeding in the Circuit Court of Kana-wha County, West Virginia, for the court to construe the insurance policy and to declare that the liability limits for each vehicle contributing to the accident were available to the appellant.
The trial court ruled that there was one “occurrence” within the meaning of the insurance policy and, thus, the appellee’s liability to the appellant was limited to $100,000.00 for bodily injury to one person (and to $300,000.00 for bodily injury to two or more persons) for the one “occurrence.”
II
On this appeal the appellant asserts that the “occurrence clause” of the insurance policy is ambiguous and must be construed against the insurer as preparer of the document and as the party better able to sustain the financial burden. In addition, the appellant argues that the allegedly two separate acts of negligence by two of the appellant’s drivers in two covered vehicles for which separately computed premiums were paid require a conclusion that there was an “occurrence” for each of the appellant’s vehicles. We disagree and affirm the trial court’s order.
III
The pertinent provisions of the comprehensive automobile liability insurance policy are set forth in the footnote.
The threshold inquiry is whether the insurance policy’s definition of “each occurrence” (“one occurrence”) is ambiguous. We conclude that it is not ambiguous, at least not in the sense meant by the appellant in this case.
In syl. pt. 1, Surbaugh v. Stonewall Casualty Co., 168 W.Va. 208, 283 S.E.2d 859 (1981), this Court, quoting syl. pt. 1, Prete v. Merchants Property Insurance Co., 159 W.Va. 508, 223 S.E.2d 441 (1976), set forth the test to determine whether an insurance policy provision is ambiguous so as to warrant judicial construction of the provision: “ ‘Whenever the language of an insurance policy provision is reasonably susceptible of two different meanings or is of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning, it is ambiguous.’ ” If ambiguity is found to exist, we stated in syl. pt. 2 of Surbaugh:
“Ambiguous and irreconcilable provisions of an insurance policy should be construed strictly against the insurer and liberally in favor of the insured, although such construction should not be unreasonably applied to contravene the object and plain intent of the parties.” Syllabus point 2, Marson Coal Co. v. Ins. Co. of State of Pa. [158] W.Va. [146], 210 S.E.2d 747 (1974).
On the other hand, if ambiguity is not found to exist, the following well settled principle applies: “ ‘Where provisions in an insurance policy are plain and unambiguous and where such provisions are not contrary to a statute, regulation, or public policy, the provisions will be applied and not construed.’ [Syl.,] Tynes v. Supreme Life Insurance Company of America, [158] W.Va. [188], 209 S.E.2d 567 (1974).” Syl., Farmers’ & Merchants’ Bank v. Balboa Insurance Co., 171 W.Va. 390, 299 S.E.2d 1 (1982).
The appellant contends that the occurrence clause in this case is ambiguous in that it is reasonably susceptible of a meaning different from that found by the trial court, specifically, two “occurrences,” not one, result from allegedly two negligent acts of an insured which together cause an accident (and injuries or damage). The parties have not cited, nor has our research disclosed, any cases precisely on point.
The annotation at 55 A.L.R.2d 1300 (1957 and Later Case Service), entitled “What constitutes ‘each,’ ‘a single,’ ‘one,’ ‘any one,’ ‘any,’ or ‘an’ accident or occurrence, within liability policy limiting insurer’s liability to specified amount,” contains a thorough analysis of the classic dichotomy, cause v. effect; that is, some eases approach the question of whether one, or more than one, occurrence is involved from the standpoint of the insured whose action (or inaction) caused the claims to flow, while other cases view each resulting claim from the standpoint of the injured person^), with the latter approach, of course, more apt to find more than one occurrence. For an excellent discussion of the two approaches see the leading case of Saint Paul-Mercury Indemnity Co. v. Rutland, 225 F.2d 689, 692 (5th Cir.1955). See also American Casualty Co. v. Heary, 432 F.Supp. 995, 997 (E.D.Va.1977).
Nearly all of the reported cases, however, appear to involve either multiple impacts or multiple persons’ injuries or damages from a single impact. See Slater v. United States Fidelity & Guaranty Co., 379 Mass. 801, 804-08, 400 N.E.2d 1256, 1259-61 (1980). Very few of the cases appear to analyze the subject situation, that is, the allegedly concurrent negligence of two employees of an insured which together constitute the proximate cause of an accident involving one impact and one person being injured.
The following language is pertinent to the subject situation: “[W]hen ordinary people speak of an ‘accident’ in the usual sense, they are referring to a single, sudden, unintentional occurrence. They normally use the word ‘accident’ to describe the event [emphasis in original], no matter how many persons or things are involved.” Saint-Paul Mercury Indemnity Co. v. Rutland, 225 F.2d 689, 691 (5th Cir.1955).
Also pertinent'is this insightful test suggested in § 3[c] of the annotation at 55 A.L.R.2d 1300 (1957), set forth in the foot note. Thus, as stated in the annotation, the important point to be remembered when analyzing a factual situation to determine whether one, or more than one, “occurrence” is involved is the relative closeness of the connection in time and space between cause and result.
The subject insurance policy’s definition of “one occurrence” — injury or damage “arising out of continuous or repeated exposure to substantially the same general conditions” — is consistent with this emphasis on closeness in time and space. This same definition was included in the liability insurance policy in Champion International Corp. v. Continental Casualty Co., 546 F.2d 502 (2nd Cir.1976), in which defectively manufactured panelling was installed in 1,400 mobile homes. The court concluded that this definition was unambiguous and held that there was only one “occurrence,” albeit 1,400 claims, because of the “continuous or repeated exposure.” While we agree that the policy’s definition of “occurrence” was unambiguous, we, like the dissent in Champion, believe that the incorrect result was reached on the facts therein, and, as observed by the dissent, attribute the majority’s decision to a strained application of the plain terms to provide greater coverage to the insured for a series of small claims, each falling below the deductible amount if there were more than one “occurrence.”
In the case before this Court there may or may not have been two antecedent negligent acts but there was only one resulting “occurrence,” the event from which liability arises, namely, the collision. The subject matter of the insurance is not “cause[s]” but “liability” and the basis for liability is an event (the collision) resulting in bodily injury or property damage. “[A]n occurrence means one event, not several events, and the question here is which event is the occurrence contemplated by the policy definition. The cases have consistently construed ‘occurrence’ or ‘accident’ in liability policies to mean the event for which the insured becomes liable, and not some antecedent cause of the injury.” Champion, supra, 546 F.2d at 508 (Newman, J., dissenting), citing, for example, Hamilton Die Cast, Inc. v. United States Fidelity & Guaranty Co., 508 F.2d 417, 419-20 (7th Cir.1975) (policy does not cover an alleged “occurrence” of negligent manufacture without resulting “property damage,” but does cover negligent manufacture that results in “an occurrence” of property damage, with the damage, not the earlier inclusion of a defective component, triggering the insurer’s liability to the insured).
Another case equating “occurrence” with a single liability-triggering “event,” regardless of the details of how or why the event happened, is Hartford Accident & Indemnity Co. v. Wesolowski, 33 N.Y.2d 169, 350 N.Y.S.2d 895, 305 N.E.2d 907 (1973). The court therein held that there was only one “occurrence,” not two occurrences, within the meaning of an automobile liability insurance policy, when an insured vehicle struck one oncoming vehicle and then ricocheted off and struck a second vehicle more than 130 feet away. The court recognized three approaches to determining whether there was one or more than one “occurrence” for liability insurance purposes: (1) looking to the proximate cause of the injuries or damages, (2) looking to the number of persons suffering a loss, and (3) looking to that one event of an unfortunate character that takes place without one’s foresight or expectation and which is objectively descriptive of what happened. The court concluded that the third approach was the most practical of the three approaches. In applying this “event” test the court examined the closeness in time of the two impacts (only instants apart) and stated: “We think in common understanding and parlance there was here but a single, inseparable ‘three-car accident.’ ” 33 N.Y.2d at 174, 350 N.Y.S.2d at 899-900, 305 N.E.2d at 910.
In like manner, there was only one “event” or “occurrence” here, the collision, both in common parlance and under the policy’s definition of “occurrence.” If there were two negligent acts of two of the appellant’s drivers in this case, the two acts, (1) signalling to pass and (2) passing, happened, according to the jury’s answer to the special interrogatory, at or about the time of the accident, and, due to the closeness in time, as concurrent negligence proximately caused the one “occurrence,” the collision. Any two antecedent negligent acts do not constitute two “occurrences.” The term “occurrence” in a limitation of liability clause within an automobile liability insurance policy refers unmistakably to the resulting event for which the insured becomes liable and not to some antecedent cause(s) of the injury.
The appellant’s reliance on Loerzel v. American Fidelity Fire Insurance Co., 281 A.D. 735, 118 N.Y.S.2d 180 (N.Y.App. Div.1952), is misplaced. In that case the plaintiff was injured in a collision between the car in which the plaintiff was riding and two trucks owned by the defendant insurance company’s insured. The plaintiff first brought an action for personal injuries against the trucking company and obtained a verdict awarding damages to the plaintiff. The plaintiff thereafter brought an action directly against the trucking company’s insurer for recovery of most of the verdict. The defendant paid up to the limits of liability for one person in one accident but denied liability for the remaining damages. The trial court ruled that the insurance company was liable for the remaining damages and its ruling was affirmed. The appellate court noted: “The record in this case clearly reveals that the jury found two trucks of the trucking company were involved in the accident, and both drivers were guilty of negligence in the operation thereof.” 281 A.D. at 735, 118 N.Y.S.2d at 181. The court also emphasized that the “policy in question was a fleet policy, and ... was intended to cover each vehicle the same as though a separate policy had been issued therefor.” Id. Finally, the court held that an ambiguity existed between the clause covering each vehicle and the clause limiting liability, and resolved the ambiguity against the insurer. Id.
Loerzel is clearly distinguishable from the present case. Here, the record does not clearly reveal the negligence of more than one of the insured’s drivers. Furthermore, in this case there is no “fleet” policy making each vehicle covered by a separate policy. To the contrary, the policy herein expressly provides that the limitations of liability apply regardless of the number of automobiles covered by the policy.
This clear policy language also precludes ambiguity in this case arising from a purported conflict between the payment of separately computed premiums for each vehicle and the limitation of liability clause. When two or more automobiles are insured under a policy of liability insurance, the terms of the policy may be stated to apply separately to each automobile. That is to say, the so-called separability provision assures the policy shall apply to whichever automobile is involved in the accident and it does no more. 1 R. Long, The Law Of Liability Insurance § 2.10 (1985). See also annot., 37 A.L.R.3d 1263 (1971), entitled, “Limitation Of Amount Of Coverage Under Automobile Liability Policy As Affected By Fact That Policy Covers More Than One Vehicle.” In each case in this annotation the claimant contended that an ambiguity in the policy was created by inclusion of both the separability clause and the clause limiting the amount of coverage, and that coverage was not limited to the stated amount per person, but was that amount multiplied by the number of vehicles insured. In most of the cases, other than those involving uninsured motorist coverage (which are sui generis), the insured’s argument to this effect (called “stacking" coverages) was rejected and liability was held limited to the amount expressly stated in the policy.
Certainly, “stacking” is to be denied when, as in the present case, there is express “anti-stacking” language (“regardless of the number of automobiles to which this policy applies”) in the limitation of liability clause. Compare Lemoi v. Nationwide Mutual Insurance Co., R.I., 453 A.2d 758, 760 (1982) (denied “stacking” of medical-payment benefits under one policy covering two vehicles for which separate premiums were paid, where policy’s limitation of liability clause stated: “The affording of insurance to more than one person or to more than one automobile ... shall not operate to increase the limits of the Company’s liability.”), with Virginia Farm Bureau Mutual Insurance Co. v. Wolfe, 212 Va. 162, 164-65, 183 S.E.2d 145, 147 (1971) (allowed “stacking” of medical-payment benefits under one policy covering three vehicles for which separate premiums were paid, where separability and limitation of liability clauses together created ambiguity to be resolved against insurer, but recognizing that opposite holding would have been reached if limitation of liability clause had contained “anti-stacking” language identical to that in this case).
When an automobile liability insurance policy contains language limiting the insurer’s liability as the result of any one occurrence, “[rjegardless of the number of ... automobiles to which this policy applies,” the insured is not entitled to “stack” liability coverages for each vehicle for which the insured has paid a separate premium. In light of the explicit “anti-stacking” language, the payment of a separate premium for each vehicle does not create an ambiguity in the insurance policy which should be resolved against the insurer.
Lemoi, supra, also disposes of the appellant’s public policy argument to the effect that an insurer should not be permitted “unjust enrichment” by allowing it to limit its liability coverage available to an insured to the limit for one vehicle when separate premiums have been paid for more than one vehicle:
Nationwide should not be required to pay twice simply because it collected two ... premiums. The greater the number of vehicles, the greater the risks incurred. That the insurer charged twice for the [coverage] cannot warrant our ignoring the specific language of the limitation clause. A legislative policy may result in the control or regulation of such limitations or premiums charged, but there is no judicial policy that prevents an insurer from charging more when it assumes a greater risk. Carter v. Boston Old Colony Insurance Co., 581 F.2d 1123, 1126 (4th Cir.1978).
453 A.2d at 761. A limitation of liability clause within an automobile liability insurance policy which limits coverage for any one occurrence, regardless of the number of covered vehicles, does not violate any applicable insurance statute or regulation, and there is no judicial policy that prevents an insurer from so limiting its liability and yet collecting a premium for each covered vehicle because each premium is for the increased risk of an “occurrence.”
IY
Based upon all of the above, the order of the trial court is affirmed.
Affirmed.
. The proceeding below was brought under the Uniform Declaratory Judgments Act, W. Va. Code, 55-13-1 et seq., as amended.
. On this record virtually all of the facts were stipulated.
. After setting forth in a schedule the dollar amounts mentioned in the text as the limits of liability for "each person" and “each occurrence” for the respective coverages, section I provides:
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage C. bodily injury or
Coverage D. property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use ... of any automobile, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, ... but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.
In section III are the following "limits of liability":
Regardless of the number of ... (4) automobiles to which this policy applies, the company’s liability is limited as follows [emphasis added]:
Coverage C — The limit of bodily injury liability stated in the schedule as applicable to “each person" is the limit of the company’s liability for all damages ... because of bodily injury sustained by one person as the result of any one occurrence [;] but subject to the above provision respecting “each person”, the total liability of the company for all damages ... because of bodily injury sustained by two or more persons as the result of any one occurrence shall not exceed the limit of bodily injury liability stated in the schedule as applicable to "each occurrence.”
Coverage D — The total liability of the company for all damages because of all property damage sustained by one or more persons or organizations as the result of any one occurrence shall not exceed the limit of property damage liability stated in the schedule as applicable to “each occurrence".
Coverages C and D — For the purpose of determining the limit of the company’s liability, all bodily injury and property damage arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence. (emphasis added)
Also, in the general "definitions" section of the policy, the term “occurrence” is defined to mean “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the Insured[.]’’
. The record does not establish the negligence of the appellant’s driver who signalled by CB radio that it was safe for Mr. Owens, the insured’s driver involved in the collision, to pass the other truck. Instead, the record contains only a stipulation that there was an affirmative jury response to the following special interrogatory at the personal injury trial against the appellant:
Do you, the jury, find from a preponderance of the evidence at or about the time of the accident one or the other two Shamblin drivers, Robert Beller or Jon Haynes, told the Shamblin driver, Eddie Owens, by means of CB radio that the roadway was clear and it was all right to pass the Buske Lines, Inc. truck? (emphasis added)
Note that the jury did not find negligence on the part of Beller or Haynes but only that, at or about the time of the accident, Beller or Haynes told Owens that it was all right to pass. Whether such communication was negligence and contributed proximately to the accident would be questions of fact for the jury, and the record does not contain the answers to these questions. See syl. pt. 1, White v. Lock, 175 W.Va. 227, 332 S.E.2d 240 (1985). Thus, the foundation of the appellant’s argument that there were two "occurrences” due to two negligent acts of two of the appellant’s drivers is not upon solid ground. Nonetheless, even assuming arguendo that there were two negligent acts of two of the appellant’s drivers, there was, at the most, concurrent negligence which was the proximate cause of one event, for which event liability was incurred by the appellant.
. On this appeal only the one impact injuring the one plaintiff in the personal injury action against the appellant is involved.
. If, on the basis of the present cases, an attempt is made to reconcile the decisions regardless of the rationes decidendi [underscoring added] advanced in the respective opinions — simply on the facts presented— such a reconciliation can be achieved on the basis of the closeness of connection in time and space between the individual items of injury or damage. If cause and result are simultaneous or so closely linked in time and space as to be considered by the average person as one event, the courts have invariably found that a single accident within the meaning of the accident clause of the policy has occurred, while if enough time has elapsed between the injuries or damages to the various items involved or if the latter are widely separated in space, the courts have been inclined to allow separate claims even though they sprang from the same cause. Generally speaking, it may therefore be stated that the aggregate of events resulting from insured’s negligent act, such as several collisions, constitutes one accident, provided there is a close connection in time and place and a single sequence of cause and effect embracing the entire aggregate of events. If, on the other hand, the times or places and detailed causes of each instance of injury or damage are different, there are separate accidents although each contains a common causal factor. This test, by necessity, does not suggest a fixed and arbitrary rule of a certain permissible time interval or difference in location. It does not attempt to answer in the abstract how much time must elapse or how far apart the items must be in space before the courts will recognize the existence of separate accidents. All this test can do is to point out the relevant factors which in the past seem to have influenced the courts, at least unconsciously, in reaching their decisions, (emphasis added)
. The record here does not indicate any express separability provision for the comprehensive automobile liability coverage. The appellant relies, instead, on the fact that separate premiums were paid for each covered vehicle. The effect of payment of separate premiums on the limitation of liability clause is discussed in some of the cases.
. The appellant's argument that two of his vehicles, not just one, were "involved in the accident” is, as shown above, not established factually and is invalid as a matter of law because only one vehicle was involved in the collision, the event which is the "accident" or "occurrence” for purposes of limitation of liability.
.Thus, Bell v. State Farm Mutual Automobile Insurance Co., 157 W.Va. 623, 207 S.E.2d 147 (1974), is distinguishable. It involved uninsured motorist coverage and more than one policy. In addition, it involved a limitation of liability clause conflicting with the applicable insurance statute. Here, in contrast, comprehensive automobile liability coverage, one policy, and a limitation of liability clause not in conflict with any insurance statute are involved. | [
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SNYDER, President :
At the March term, 1889, of the Circuit Court of Barbour county, the grand jury found an indictment in which it is charged that J. 0. Gilman, in said county, did unlawfully, and without a license therefor, “sell, offer, and expose for sale, and solicit and receive orders for, and keep in his possession for another, spirituous liquors, wine, porter, ale, beer, and drink of a like nature,” etc. The defendant moved the court to quash the indictment; which motion being overruled, he pleaded not guilty, and thereupon the case was tried by a jury. There was a verdict of.guilty, on which the court entered judgment, fining the defendant $20.00. A motion to set aside the verdict was made and overruled by the court, and an exception taken by the defendant, in which all the facts are certified. These facts are as follows:
“John Thompson, witness for the state, testified that he did not buy whiskey of defendant within one year next pre ceding the finding of this indictment, but that on the 15th day of October, 1888, he got whiskey of defendant, which defendant was keeping in his possession for another person, James E. Heatherly, who was at the time a candidate for sheriff of Barbour county; and that said whiskey was kept by defendant in his possession at his hotel in the town of Phillippi in Barbour county, to be distributed free by defendant to such persons as said Heatherly should give order for or send there for it; and witness for the state had, at the time the liquor mentioned in the indictment was delivered to him by said defendant, within one year next preceding the finding of the indictment, an order from said Heatherly on said defendant for a quantity of said intoxicating liquor less than five galloiis; and that upon said order, within said year, said defendant did deliver to said witness a quantity of said intoxicating liquor of less than five gallons. Defendant admits that he had no state-license to sell, solicit, or receive orders for, or keep in his possession for another, spirituous liquors, wine, porter, ale, beer, and drink of a like nature.”
This indictment is framed under the provisions of section 1, c. 32, Code 1887, and is in the precise language of the statute. It is in legal form, and, as no extrinsic facts were shown to invalidate the finding of it, I think the motion to quash was properly overruled.
The said statute was amended by chapter 29, Acts of 1887, and then, for the first time, the words, “or solicit or receive orders for, or keep in his possession for another,” were made a part of the statute. Prom the facts proved, it is apparent the conviction in this case must be sustained, if it is done at all, under that provision which I have italicised, “keep in his possession for another.” It will be observed that this provision has no reference to the intent or purpose for which the liquor is kept in possession, but it denounces as a crime the simple fact that the liquor is kept in possession for another, however innocent the act or commendable the purpose. Has the legislature of this State the constitutional power to make such an act a crime ?
The fourteenth amendment to the constitution of the United States declares: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;” and the same amendment makes all persons born of naturalized in th.e United States citizens thereof. It is conceded that the “privileges and immunities” here protected are such only as are in their nature fundamental; such as belong of right to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States of,the Union, from the time of their becoming free, independent, and sovereign. What these fundamental rights are, it is not easy to enumerate, the courts preferring not to describe and define them in a general classification, but to decide each ease as it may arise. The following, however, have been held to be embraced among-them: “Protection by the government; the enjoyment of life and liberty with the right to acquire and,possess property of every kind, and to pursue and obtain happiness and safety, subject to such restraints as the government may justly prescribe for the general .good of the whole.” Washington, J., in Corfield v. Coryell, 4 Wash. C. C. 380; Conner v. Elliott, 18 How. 591; In re Parrott, 6 Sawy. 349, (1 Fed. Rep. 481); 6 Myer, Fed. Dec. § 1000; Landing Co. v. Slaughter-House Co., 111 U. S. 746, (4 Sup. Ct. Rep. 652). These are inalienable and indefeasible rights, w'hich no man, or set of men, by even the largest majority, can take from the citizen. They are absolute and inherent in the people, and all free governments must recognize and respect them. Therefore it is incumbent upon the courts to give to the constutional provisions which guaranty them a liberal construction, and to hold inoperative, and void all statutes which attempt to destroy or interfere with them. Cooley, Const. Lim. (35) 44. It can hardly be questioned that the right to possess property is one of these rights, and that that right embraces the privilege of a citizen to keep in his possession property for another. It is not denied that the keeping of property which is injurious to the lives, health, or comfort of all persons may be prohibited under the police power.
The maxim, sic utere tuo ut alienum non Icedas, being of universal application, it must, of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others. But it does not follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exercise of the police power of the State ; and much less is such the case when the statute is merely claimed by its defenders to be intended for that purpose. The U. S. Supreme Court, in its opinion in Mugler v. Kansas, says : “The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute pui’porting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge,- and thereby give effect to the constitution.” 123 U. S. 661, (8 Sup. Ct. Rep. 273).
The keeping of liquors in his possession by a person, whether for himself or for another, unless he does so for the illegal sale of it, or for some other improper purpose, can by no possibility injure or affect the health, morals, or safety of the public; and, therefore, the statute prohibiting such keeping in possession is not a legitimate exertion of the police power. It is an abridgement of the privileges and immunities of the citizen without any legal justification, and therefore void. . .
But it seems to me the said provision of the statute is in violation of that provision of our State constitution which declares that “laws may be passed regulating or prohibiting the sale of intoxicating liquors within the limits of this State.” Article VI. § 46. While it is admitted to be a well-settled principle that the legislature has the same unlimited power in regard to legislation which resides in the British parliament, except where it is restrained either by the State or Federal constitution, still, it is equally true that those constitutional limitations are not confined to express inhibitions, for there are but few positive restraints upon the legislative power contained in the constitution. The third article, or “bill of rights,” lays down the ancient limitations which- have always been considered essential in a constitu tional government, whether monarchical or popular; and there are scattered through the instrument some other express provisions in restraint of legislative ■ authority. But the affirmative prescriptions and the general arrangements of the constitution are far more fruitful of restraints upon the legislative power. Every positive direction contains an implication against everything contrary to it, or which would frustrate or disappoint the purpose of that provision. The frame of the government, the grant of legislative power itself, the organization of the executive authority, and the erection of the principal courts of justice, create implied limitations upon the law-making authority as strong as though a negative was expressed in each instance. Cooley, Const. Lim. 87; People v. Draper, 15 N. Y. 543.
If the people had not made the provision above quoted a part of the constitution, the legislature would, so far as that instrument is concerned, have had plenary and unrestricted authority to deal with liquors in any manner it chose to do. But the people, by declaring that “laws may be passed regulating or prohibiting the sale of intoxicating liquors,” according to the principles we have announced, imposed a restraint upon this plenary power. Bj' granting an express authority to the legislature to regulate or prohibit the sale, there is an implied inhibition to the exercise of any authority in respect to that subject which is not embraced in the grant. This rule is simply an application of the old maxim, expressio unius est exclusio alterius, which Lord Bacon concisely explains by saying: “As exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated.” The express power hero given to regulate or prohibit the sale of liquors, unless it was intended to limit the legislative authority, would render this provision of the constitution wholly nugatory and useless ; because, as we have seen, without'this provision the legislature would have had plenary power over the whole subject. It could not only have legislated in respect to the prohibition and sale of liquors, bu.t in all other respects; It seems to me-, therefore, that the purpose and effect of this constitutional provision was and is to restrict and limit the legislative authority to the powers expressly granted therein —that is, to the power to regulate or prohibit the sale of liquors; and, consequently-, a legislative act not within the legitimate scope of this express grant, unless it is a fair and reasonable exercise of the police power, must be held unconstitutional and void.
From what we have already said, it is apparent that the provision of the statute under consideration is not a fair and reasonable exercise of the police- power, nor has it any reference to the prohibition or sale of liquors. It is simply an attempt to make the possession of liquor for any purpose a crime. A very different question would be presented if the act had made it unlawful for any person to keep intoxicating liquors in his possession, either for himself or for another, for the purpose of selling it, or as a device to evade the revenue laws. But this provision has nothing in it of that kind. It makes the mere possession for another; without regard to the intent or purpose of either the possessor or of the person for whom it is kept, a crime. It would seem that, if it is a crime, or in contravention of the revenue laws, for one person to keep liquor in his possession for another, it would be equally so for him to keep it in his possession for himself; but under this act the latter is no offence; and, e converso, it would seem that, if the keeping of liquor, or any other property, by a person for himself, is lawful, it would be equally lawful for such person to keep it in his possession for another.
Upon the whole case, it seems to me plain, that that part of said statute which inhibits a person to “keep in his possession, for another, spirituous liquors,” etc., is in conflict with both the Federal and State constitutions, and therefore void. This provision of the statute being void, the evidence in .this case fails to prove that the defendant was guilty of any legal offeuce, and, per sequence, the judgment of the Circuit Court must be reversed, and the defendant discharged.
REVERSED. | [
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Miller, Judge:
The first error assigned is the overruling of defendant’s motion to strike out certain parts of the first count, and his demurrer to the second count of the declaration.
Originally, the demurrer was general, and not to a particular count; and on the former hearing here, 63 W. V a. 541, 548, we held that the insufficiency of the second count did not vitiate the declaration as a whole. When the case went back for a new trial defendant then interposed his motion, and his demurrer to the second count, and the question now is presented whether the judgment of the court thereon was error prejudicial to the defendant calling for reversal.
The motion was to strike out of the first count the words, “when he lost his life as a consequence of the unlawful acts of the said defendant as hereinafter set forth”; also the words, “and prior to said mentioned day, and thence thereafter until his death occurred”; also tire words, “up until his said death,” the purpose being to eliminate all reference to the death of plaintiffs husband, and to limit the evidence strictly to the question of damages to plaintiffs person and means of support, by reason of the unlawful sales made to him prior to his death. The grounds of the court’s ruling upon said motion and demurrer, as stated in its order and certified in the bill of exceptions was, “ that the questions presented thereby could and would be acted upon by the court at the trial of the ease,” and that the plaintiffs attorney had stated that he would not offer any evidence under the second count. If the court had stricken out these words of the first count, there remained other words alleging the date of the death of plaintiff’s husband, and that defendant continued to sell him intoxicating liquors up to that time — words equally as objectionable as those covered by the motion. With-those words in how could defendant have been prejudiced by the action of the court on his motion? Besides, it clearly appears that these allegations were intended simply to fix the date of the death of deceased, and not as a foundation of recovery, and' in as much as on the trial the court, by its rulings on the evidence and on instructions given the jury, limited plaintiff in her recovery to injuries sustained prior to the death of her husband. .We see no reversible error in this action of the court.
But the ruling on the demurrer presents a more serious question. Clearly the second count is bad, and the demurrer should have been sustained. But has tire defendant been prejudiced thereby? Very high authority says: “Confusion frequently results from applying the settled rule, that a ruling sustaining a demurrer to one of several paragraphs of a pleading is harmless in a case where there are other paragraphs of a pleading under which all of the facts can be proved, to a case where a demurrer is overruled to one of several paragraphs. The cases are radically different. It can not possibly do the party whose demurrer is overruled any good to hold that there are other paragraphs under which all the evidence is admissible, although it may do his adversary a vast deal, of good to so hold. It is no benefit to the party who demurs that his adversary may give evidence under other paragraphs, although to the adversary the benefit may be very great. In holding a defective paragraph good the court adjudges that if the party by whom it is pleaded proves it he will be entitled to recover. No such thing is’ ad judged where a demurrer is sustained to one paragraph of several. It is true that it is adjudged that the paragraph is insufficient, but no harm can result from such a ruling, if, in fact, no competent evidence is excluded, and it is not excluded if other paragraphs are left standing which entitle it to admission. It is far otherwise where an insufficient paragraph is adjudged sufficient, for there is nothing to aid the party who demurs.” Elliott on Appellate Proc., section 669. The doctrine of this text is supported, not only by the authorities cited, but by our own cases of Van Winkle v. Blackford, 28 W. Va. 670, and Bank v. Kimberlands, 16 W. Va. 557; also by University v. Snyder, 100 Va. 567, as well as by sound reasoning. We have concluded, however, without thereby approving the action of the court below, that if we had not found other errors requiring reversal, we would not reverse the judgment solely on this ground. The evidence was limited, and the jury by instructions given were limited in their verdict to the first count of the declaration.
Defendant's motion to exclude the plaintiff's evidence, overruled, is next relied on. We think this motion ivas without merit. Besides, the defendant after the ruling on his motion introduced his evidence; and, as heretofore ruled by this Court, he thereby waived his motion to exclude. Carrico v. Railway Co., 35 W. Va. 389; Overby v. C. & O. R. R. Co., 37 W. Va. 524; Poling v. Ohio River R. Co., 38 W. Va. 646; Fuller v. Magaret Mining Co., 64 W. Va. 437.
After defendant’s motion to exclude the whole of plaintiff's evidence was overruled, he undertook to apply the same motion specifically to the evidence of plaintiff claimed to relate to the death of plaintiff's husband as an injury to her means of support. We are referred to no specific evidence of that kind, and we find none. The court below, while admitting evidence of the fact and date of death, limited recovery to loss of support occurring prior thereto, and though the motion was overruled, the evidence of death, being so limited, resulted in no apparent injury to defendant and the point is without merit.
The other errors relied on relate to the giving and refusing of instructions to the jury, and to the refusal of the court below to submit to the jury special interrogatories numbered 3 to 7, inclusive, propounded by defendant.
First, as to plaintiff’s instruction number one, given. This instruction is identical with her number one on the former trial, except the last clause added, limiting recovery to damages arising from sales made prior to July 23, 1905, being one year prior to the date of the suit. This was the one defect to which the court’s attention was called on the former hearing. But that defect being cured, the defendant on this hearing claims that this instruction is bad for another reason, namely, that it does not limit plaintiff’s recovery to damages accruing prior to June 26, 1906, the date of Pennington’s death. According to our former decision this is the law of this case, and it was so conceded during the trial. No instruction given on behalf of plaintiff strictly limits recovery to that date, but number 6 substantially does so. ' Besides, defendant’s instructions numbered 10', 11 and 12, given, three times allude to this date as fixing the time within which any damages sustained must be limited; and while we think instruction number one should have contained such limitation, yet as on the trial that date appears to have been conceded as limiting the recovery, and as the defendant’s instructions numbered 10, 11, and 12, substantially did so, we would not be disposed to reverse the judgment for this error alone. But is not this instruction bad for submitting to the jury the question of injury to plaintiff’s person? We think it is, for reasons which will be given in disposing of the objections to instruction number 4, erroneous for the same reason.
Plaintiff’s instructions numbers 2 and 3, assailed, are identical with her instructions numbers 4 and 5, given on the former trial. As the court understood the objection to these instructions then was that they were predicated on damages resulting from sales mad'e by defendant’s bar-tender, as well as sales by defendant personally, not covered by specific allegation in the declaration. This objection we then regarded groundless.
But more serious objections are now urged. The first is that there is no evidence on which to found the facts assumed in these instructions. This objection we think groundless. There was certainly some evidence of illegal sales, the only fact assumed. The second objection is that it was error to tell the jury, as was done in number 2, that if they should find that illegal sales had been made to plaintiff’s husband, they should find they were willfully and wantonly made, and that they might find exemplary damages. The third objection is that it was im proper to tell the ¡jury, as was done in number 3, that they should find “exemplary damages,” in addition to actual damages to plaintiff’s means of support. The second objection we think as groundless as the first. Cases arising under our civil damage law are sui generis. If sales be made illegally, in violation of the express command of the statute, whether made by principal or agent, in the eye of the law, as heretofore construed, they are deemed to have been made willfully and wantonly. The illegality thereof, the violation of the law, by principal or agent, supplies all the elements, necessary in other cases to show fraud, malice, oppression, or wanton, willful or reckless conduct or criminal indifference to civil obligation on the part of defendant, and justifies the jury in imposing on the wrongdoer, for his.infraction of the law, exemplary damages. Mayer v. Frobe, 42 W. Va. 246, 264-5; McMaster v. Dyer, 44 W. Va. 644, 648. An illegal sale implies knowledge of the facts rendering it illegal, and a willful and wanton disregard of the rights of those affected thereby. 23 Cyc. 330. But it is earnestly insisted that Mayer v. Frobe, supra, is not applicable in an action against the principal where the sale is made by a bar-tender or agent without his knowledge or approval. Our answer is that the statute makes him so liable. This question will be considered in connection with defendant’s instruction number 14.
But was it proper to tell the jury in instruction number 3 that they should find exemplary damages? We had occasion in the recent case of Fink v. Thomas, not yet reported, to carefully consider this subject of exemplary damages, with reference to instructions to the jury thereon. We held in that case that exemplary or punative damages in' an action of tort are not matter of right, it being with the jury to say whether or not they shall be given, and that “an instruction binding the jury to give exemplary damages is erroneous.” This law would render this instruction bad as an original proposition. Whether, because approved on the former hearing, it must be regarded as the law of this case is a question to be considered later.
But are these instructions so approved by this court on the former hearing res judicata, or as the law books sometimes say, the law of this ease, binding us on this hearing, and the court below upon another trial to be awarded? We should settle this question in order to promote justice and to- avoid further litigation. On the former hearing we passed only on the particular point presented and considered, and then perceived no other errors in the instructions. The point on which our opinion now turns was not considered, or disposed of, except in the general way stated, and is not made a point of the syllabus. The court below, on the second trial was necessarily bound by the mandate of this Court, and we think ourselves also bound thereby on this hearing if no other errors are found requiring a reversal of the judgment now under review, for the general rule is that if it appear from the record that the point in controversy was necessarily decided in the first suit, it can not be again considered in any subsequent suit between the same parties or their privies. McCoy v. McCoy, 29 W. Va. 795, 807. For other cases, see 6 Ency. Dig. Va. & W. Va. Rep. 341 et seq. And it is also the general rule, subject to few, if any, exceptions, that a question of law or fact once definitely settled and determined by this Court, on remanding the case for further proceedings, is conclusive on the parties and privies thereto, and upon the court below, and upon this Court upon a second appeal or writ of error. Henry v. Davis, 13 W. Va. 230; Seabright v. Seabright, 33 W. Va. 152; Wick v. Dawson, 48 W. Va. 469; Butler v. Thompson, 52 W. Va. 311, 314. On this subject Mr. Van Fleet, 2 Van Fleet’s Former Adjudication, section 664, says: “If a cause is reversed in a higher court the lower one is bound to proceed in accordance with the opinion sent down. The parties are compelled to retry the case on the new rules laid down, and to shape their respective causes of action or defense accordingly. Having done so, and in many cases having irretrievably changed their positions, it would work injustice to overturn these rules on a second appeal, and these again on a third, and so on, ad infin-itum. The suit might never end. Besides, it would be very undignified, and tend to bring the courts into merited disrespect, if the lower court should be compelled to retrace its steps on one appeal, and then to trace them back again on a second, and so on. Hence, with a few exceptions, it is a rule that a matter decided on appeal becomes,, in effect, res judicata in that cause; or, as it is frequently expressed, it becomes the ‘law of the case’ in all its subsequent proceedings.” . But this writer, in the same section, approves the doctrine of Cluff v. Day, 141 N. Y. 580. The New York court says: “There is no iron rule which, precludes a court from correcting a manifest error in its former judgment, or which requires it to adhere to an unsound declaration of the law. It may, for cogent reasons, reverse or qualify a prior decision, even in the same case. But the cases in which this will be done are exceptional, and the power should be sparingly exercised.” The same doctrine, as this writer shows, was advanced in Texas, Missouri, Tennessee and Iowa, in Bomar v. Parker, 68 Texas 435 (4 S. W. R. 599, 606); Bird v. Sellers, 122 Mo. 23 (26 S. W. R. 668); Bynum v. Apperson, 9 Heisk. (56 Tenn.) 632, 644; Barton v. Thompson, 56 Iowa 571 (9 N. W. R. 899). The Missouri case of Bird v. Sellers, supra, says: “This is not an inexorable rule without exceptions, but has been frequently departed from, when such adjudication has been found to be wrong, not in harmony with other decisions of the court, and no- injustice nor hardship would result from overruling the former decision!’ In Barton v. Thompson, the Iowa court says: “As the court below followed the rule originally adopted in this case, we would not feel justified, under the authorities above referred to, in adopting a different rule upon this appeal, which would lead to a reversal of the ease. But, as it becomes necessary to reverse this case upon other grounds, and as the rule originally adopted has been overruled in another case, and is no longer the law of the State, it will be the duty of the court in the further prosecution of this case to follow the rule adopted in Welch v. Jugenheimer, supra.” We think this case precisely in point, involving as it does a ruling on an erroneous instruction to the jury, and that it is good law. It does not impugn the general rule, followed in our own cases, and as no injustice will be done, and a modification of our former ruling will not lead to a reversal, we think we should so far modify our former ruling on these instructions as to hold them bad in the particulars pointed out, and that if offered on another trial they should be modified as now indicated.
Plaintiff’s instruction number 4, complained, of, is a modification of her number 6, held erroneous on the former hearing. As propounded on the original trial it contemplated damages for future support, and was held bad, along with other instructions disapproved for the same reason. The instruction as given on the second trial, except the words in parenthesis which were stricken out, the words italicized having been inserted, is as follows: “The court instructs the jury that in determining whether the plaintiff was injured in her means of support, or in her person, by the act or acts of the defendant, they should consider whether as a result of the act or acts of the defendant as charged in the declaration, the means of the plaintiff’s (future) .support (have been cut off, or) were diminished below what (is) was reasonable and competent for a person in her station in life and below what they would otherwise have been; and as to injury to her person, whether as a consequence of such act or acts, she suffered humiliation or grief. And (that) the plaintiff, in order to entitle her to damages to her means of support, is not required to show that she has been at any time in whole or in part without present means of support in order to entitle her to damages to such means of support.” The only objection urged to this instruction, as given on the second trial, is that it told the jury they might assess damages for humiliation and grief, not by the statute made a ground of recovery. For this we are cited to Calloway v. Laydon, 47 Iowa 456. And 7 Ency. of Ev. 709 is also cited for the same proposition. These authorities do not fully support the proposition as stated. Section 26, chapter 32, Code 1906, authorizes recovery of actual damages on three grounds, and on three grounds only, namely: (1) Injury to the person, (2) injury to property, and (3) injury to means of support. All the authorities, including those cited by counsel, hold that under a statute like ours an action for injury to the person can not be sustained without showing actual physical violence, or physical harm or suffering sustained by the plaintiff at the hands of the intoxicated person, and that mental suffering, that is plaintiff’s sorrow, fear, or anxiety, or mortification, or disgrace, caused by the publicity of his degradation or estrangement or loss of his society and companionship, will not alone entitle her to recover, without proof of actual injury to person, property or means of support. 23 Cyc. 311, 313, and cases cited in notes; Black on Intox. Liquors, section 306. The possible suggestion in the last authority that assault alone would do is not supported by Mulford v. Clewell, 21 Ohio St. 191, the only ease cited therefor. 'We think that case implies the contrary, and that some physical violence or injury is required. The instruction under consideration is predicated on two of the grounds for actual damages, viz: In jury to the person, and injury to plaintiffs means of support. It assumes there is evidence to support both theories, justifying the instruction in its dual form, but, impliedly at least, if not in express terms predicates right of recovery for humiliation and grief on the theory of injury to plaintiffs person, rendering the instruction bad for this reason, and for submitting to the jury the question of injury to the person, unless there is evidence on which that theory could properly be predicated. There is some evidence of injury to plaintiffs means of support, justifying the instruction on that theory, but we fail to find <a particle of evidence of any actual physical injury to the person of the plaintiff. There is evidence that her husband, on one ox more occasions, while intoxicated on somebody’s liquor, threw a cup or two at her, but they did not hit her, and she does not claim to have sustained any physical injury therefrom nor is it proven by any witness that plaintiff sustained any impairment of health from the acts or conduct of her husband, so as to bring the case within the rule. We think this instruction clearly bad, therefore, and should not have been given. If it had limited plaintiff’s recovery for actual damages to injury to her means of support, and had told the jury that if they found she had sustained injury thereto, they might- consider, in ascertaining exemplary damages, if any, her humiliation and grief, if any, resulting from illegal sales of liquor by defendant to her husband, we think the instruction would have been g.ood. It is only when a foundation for actual damages has been laid that humiliation and grief and like elements of injury to the susceptibilities may be taken into account as a ground for awarding exemplary damages. 23 Cyc. 313, 329, and cases cited; Black on Intox. Liquors, section 309; Pegram v. Stortz, 31 W. Va. 220; Lucker v. Liske, 111 Mich. 683; 7 Ency. of Ev. 708; Calloway v. Laydon, supra; Mayer v. Frobe, supra.
Plaintiff’s instructions numbers 5 and 6 are also objected to. Number 5 defines the words of the statute, “means of support.” It is defective, as are numbers 1, 2 and 3, in not limiting recovery for actual damages to damages to plaintiff’s means of support accruing within one j^ear prior to the date of the suit and prior to the date of the death of Pennington; and also in telling the jury, as it in effect does, that they should find exemplary damages, and both number 5 and 6, like number 4, are erroneous in submitting to the jury, without evidence justifying it, the question of injury to plaintiff’s person.
Now as to defendant’s instructions. There was no reversible error in rejecting his instructions numbered 2 and 7. They are substantially the same as numbers 1, 3, 4 and 6, given, telling the jury in 'a little different language that they could find no damages against defendant by reason of the death of the plaintiff’s husband, and there was no error in not reiterating this proposition.
Instructions numbers 8 and 9 are substantially the same. Number 8 would have told “the jury that if they believe from the evidence that the plaintiff’s means of support derived from her husband for the year preceding June 26, 1906, was as much and as adequate as had theretofore been, then the jury should find for the defendant.” This instruction we think did not propound the law correctly. The jury might have been told with the same consistency, that if they found plaintiff had been as well provided for in the year prior to the death of her husband as during the first or second years of her marriage, she could not recover. Plaintiff was entitled to the best support, consistent with her station in life, during that last year of her husband’s life, as he was capable of giving her, and the jury would not be authorized to limit their findings by any such comparisons. Number 9 would have told the jury that plaintiff could not recover if they found her husband had at all times retained within the year prior to June 26, 1906, sufficient money or property to properly support her according to her station in life — in effect that if he had retained sufficient land, or other property, already accumulated, which, by selling, and reducing to money, he could have maintained her during the year as indicated, she would be barred of recovery for loss of means of support. We do not think this is the law. Men are slow to so use their accumulated property. Support usually, natural■ly and properly comes from the earnings of the husband, and the wife has at all times the right to such means of support, and she is not obliged to look to the money or property accumulated by her husband, to shield the liquor seller from the consequences of his unlawful acts. This instruction we think was also properly rejected.
Complaint is made on acount of the rejection of defendant’s instruction number 13. It would have told the jury that before they could assess exemplary or punative damages against defendant they must find that the sales complained of were unlawfully made, and were willfully, wantonly, maliciously or with criminal indifference to the civil right of plaintiff. As we have seen the law is that if a sale be unlawful it is by force of the statute willful, wanton, malicious and criminal. No other element except the unlawfulness of the sale is required to render it so, and to justify the jury in imposing exemplary damages. As proposed this instruction was misleading. It implied that something more was required besides the illegal sale to render the act of selling willful and wanton, and for this reason was properly refused.
Defendant’s instruction number 14 was also rejected, and he’ complains of that. It is predicated on the theory that a liquor seller is not liable for illegal sales made by his bartender or agent without his knowledge, consent or permission, and would have told the jury that if they found the sales complained of had been so made by the bartender or agent of defendant, and that plaintiff had been injured thereby in her means of support, they should award her only such real and actual damages as they might find from the evidence she had sustained thereby. This is not the law. On the authority of numerous judicial decisions, cited, the general rule is thus stated in Black on Intox. Liquors, section £98: “In accordance with the general principles governing the relation of master and servant, it is held that a liquor-dealer is responsible for actionable injuries under the civil damage laws, caused by sales of liquor made by his agents or servants within the general scope of their employment, though the particular sale in question was made without the knowledge or consent of the master, and even though it was made in disobedience of his general or -specific orders.” The same law is laid down in 23 Cyc. 320. In Illinois, as Mr. Black observes, an exception to the general rule, not in harmony with our cases, has been ingrafted upon it. We think the instruction was rightly rejected.
The rejection of defendant’s instruction number 16 is also assigned as error. We think it erroneous, and that it was properly refused, for the reasons given for sustaining the ruling below rejecting defendant’s instructions numbers 8 and 9. This instruction would have told the jury that if they should find from the evidence that plaintiff’s support derived from her husband during the year prior to his death was as adequate as it had been before that time, and that such support was according to her station in life, they should find for defendant. The plaintiff could not be limited in her recovery by any such comparisons.
Defendant’s instruction number 17 was given as modified by the court. He complains that it was not given as propounded. As proposed the instruction was as follows: “The court instructs the jury that it is the duty of the plaintiff to prove her case by a preponderance of the evidence, and if the jury believe that tire evidence considered as a whole is equally balanced or weighs or preponderates in favor of the defendant, then the jury should find for the defendant; and the court further instructs the jury that they may arrive at this conclusion not from the number of witnesses who may have testified on either side of the case, but from the demeanor, character, reputation or credibility of the witnessesThe court struck out the clause in italics. Was this error? Of course the instruction was good as given, but if good as proposed defendant was entitled tó its benefit. We think it technically bad. If it .had contained the word “alone” or “merely”, after the word “not” in the part stricken out, it would, in our opinion, have been good. Oxley, Inst, to Jur. 231. But as proposed the instruction would in effect have told the jury that the number of witnesses was not to be considered. This was calculated to mislead them.
Lastly defendant complains of the refusal to submit certain interrogatories to the jury. Seven were asked, but only the first and second were approved, and the record fails to show that the two approved were actually submitted to the jury, or that they made any response thereto. The approved interrogatories were as follows: (1) “Did the plaintiff sustain any injury to her means of support from the 23rd day of July, 1905, to the 26th day of June, 1906, by reason of sales made of intoxicating drinks by the defendant to her husband, A. J. Pennington ?” (2) “Was there any illegal or'unlawful sales of whiskey within the time above stated made to A. J. Pennington by the defendant or his bar-tender?” The general verdict we think was a substantial answer to these interrogatories, and under the evidence import an affirmative answer to both. The other interrogatories were as follows: (3) “If the jury find in the affirmative to the first of these two interrogatories, then how much actual damages did she sustain to her means of support ‘by reason of illegal and unlawful sales of intoxicants being made to her husband by the defendant or his bar-tenders from the 23rd of July, 1905, to the 26 day of June, 1906?” (4) “Were any such illegal and unlawful sales made wantonly, willfully, maliciously and in total disregard of the plaintiffs civil right?” (5) “If the jury find in the affirmative to the above interrogatory, then how much exemplary damages do they assess, if any, against the defendant?” (6) “Is any part of the jury’s findings for damages for liquor procured by the husband of the plaintiff at places other than the defendant’s saloon within said period?” (7) “Is any part of your verdict assessed as damages for injury to the means of support of the plaintiff by reason of the death of the plaintiff’s husband?”
The fourth interrogatory was improper for the reasons given in approving the rejection of defendant’s instruction number 13. The fifth would have been immaterial if the third had been given and answered, or vice vwsa,, for if the amount" of actual damages included in the verdict had been found in response to the third interrogatory, or the exemplary damages found in response to the fifth interrogatory the amount called for in both interrogatories would have been easily ascertainable by subtraction from the total amount of the verdict, and defendant would not have been prejudiced. We are of opinion, therefore, that the court erred in refusing to submit to the jury both of these interrogatories. The defendant was entitled to have the jury say what amount was included in their verdict for actual damages. Before exemplary damages can be found, actual damages for injury to the person, property or means of support, supported by evidence, must be found. The amount of such actual damages depend on the evidence, not upon the mere caprice or imagination of the jury. The amount of actual damages found depended on the evidence and was subject to the control of the court below, on a motion for a new trial, and if within tlie jurisdiction of this Court, by us on writ of error. The same is true also as to exemplary damages, for we think such damages should bear some reasonable proportion to the actual damage done else they would be ■ unreasonable and excessive, evincing partiality and prejudice on the part of the jury, so as to justify the court in setting the verdict aside. 23 Cyc. 327-331; Stevens v. Friedman, 58 W. Va. 78.
It may be said that if the interrogatories had not been rejected the court would not be justified by the amount found in disturbing the verdict, the defendant not appearing to be prej1 udieed thereby. Our answer is that the question of actual damages was the primary issue in the cause, and we think defendant had the right to test the correctness of their verdict by requiring the jury to say how much they had included! therein for actual damages, for if more actual damages were found than the evidence justified, their special finding would cbntrol their general verdict, and set it aside. This we understand to be the purpose of the statute. Section 26, chapter 32, Code 1906; Peninsular Land &c. Co. v. Franklin Ins. Co., 35 W. Va. 666. While the subject of submitting special interrogatories.is largely in the discretion of the trial court, this is not an arbitrary discretion, and is subject to review by this Court, for error therein. If the answers thereto would control the general verdict the interrogatories should be submitted to the jury. Bridge Co. v. Bridge Co., 34 W. Va. 155; Andrews v. Mundy, 36 W. Va. 22; Kerr v. Lunsford, 31 W. Va. 659.
We do not think defendant was prejudiced by the rejection of his interrogatories number six and seven. The jury was told by instructions given that they could find no damages for liquor procured by Pennington at places other than the saloon of defendant, and that they could not find any damages against defendant by reason of the death of plaintiff’s husband, and it is not to be presumed they disobeyed these instructions in arriving at their verdict.
We regret to again reverse the judgment in this case. But after eliminating, as we have tried to do, all errors founded on mere technicalities, our duty seems plain. We are unable to overlook the fact that while the statute under which this suit was brought was designed, along with the criminal statute, to suppress the evils of intemperance, yet it contemplates that substantial damages be shown by legal and competent evidence, before a jury will be justified in adding ®the punishment of exemplary damages. The statute was not intended to give damages where there are none, in order to furnish a basis for mulcting a defendant with exemplary damages, and the enrichment of another, not specifically effected by the unlawful act complained of. The criminal laws provide for punishment of the lawbreaker.
Our opinion is to reverse the judgment, and award the defendant a new trial, and it will be so ordered.
Reversed, and New Trial Awarded.
Note by
Brannon, Judge:
I would set aside the verdict for the additional reason that the evidence does not prove loss of support with legal certainty. It gives no data on which to base compensatory damages, that is to measure and fix the amount. This being so any punative damages cannot be allowed. - | [
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Woods, Judge:
Petitioner seeks by mandamus to require tbe state compensation commissioner to grant bim a rebearing under section 43, c. 71, Acts 1929, from an order of said commissioner refusing bim further compensation for an injury to bis leg, which be alleges to be total and permanent in nature. A demurrer to tbe petition and motion to quash tbe alternative writ awarded thereon were interposed on behalf of tbe commissioner, who for return denied tbe extent of injury set up in tbe petition, alleging that 25 per cent, partial total disability is tbe full measure of the injury, and in support thereof refers to tbe record made before tbe commissioner, which is incorporated in and made a part of said return.
In tbe case of State ex rel. Meeks v. Commissioner, 108 W. Va. 68, 150 S. E. 230, it was held that a bearing by tbe com pensation commissioner at tbe request of an employer, employee, or dependent, as provided for by'section 43 of chapter 71 of tbe Acts of 1929, applies only to matters going to tbe basis'of tbe claimant’s or employer’s right, and not to amounts or duration of awards. So, we are met at tbe outset with tbe question of whether or not tbe supplemental claim set up herein goes to tbe “basis of claimant’s right” within tbe meaning of said section.
It appears from tbe examination of February 15,1929, made by one of tbe commissioner’s medical aids, after claimant had been paid compensation at tbe rate of $16 per week for one hundred weeks on a finding of 25 per cent, partial permanent disability, that “there is no change in claimant’s condition over former examination.” There is no evidence to indicate that this report does not properly state the facts.
Claimant argues that the commissioner’s denial of additional compensation amounts to a new finding — a new ease — and therefore goes to the basis of his right. But does this necessarily follow? Such would undoubtedly be true if he had shown a more aggravated condition of- the injury, or a new claim arising therefrom. This position is taken on the ground that the condition relied on was unforseen at the time of the prior finding, and therefore not passed on. Were we to hold, as contended for by relator, that all supplemental claims go to the “basis of claimant’s right,” we would, in effect, be opening up the question of the sufficiency of the amounts and duration of awards, a matter within the discretion of the commissioner. Such matters are not appealable under the statute. State ex rel. Meeks v. Commissioner, supra; McShan v. Heaberlin, 105 W. Va. 447, 143 S. E. 109.
We are of opinion that the relator has not shown that clear legal right to have performance of the act he seeks to coerce performance of, and the plain duty to perform it on the part of the respondent, essential to invoke the aid of mandamus. State ex rel. Ferrel v. Commissioner, 108 W. Va. 477, 151 S. E. 706.
Writ denied. | [
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Woods, Judge:
Claimant, a coal loader, was seriously injured by falling slate. An examination at the Beekley Hospital shortly after the accident showed a fracture of the skull on the left side running to the base through mastoid region, fracture of occipital bone near foramen magnum, crushed index finger of right hand with several lacerated wounds of hand, one large scalp wound and several smaller wounds on face and forehead. The injury to hand necessitated amputation of index finger just behind knuckle joint. An award of $16.00 per week for 40 weeks was increased to 25%. A further increase was refused at the end of the 100 weeks. However, the claim was again re-opened in December, 1929, and claimant directed to Dr. McCulloch of the Beekley Hospital for re-examination. This report of Dr. McCulloch referred to a former examination made by him just prior to the 25% award in which he had stated that “complaint at this time is pain in head, partial loss of hearing, partial loss of sight, double vision and dizziness ’ ’; and ends with the statement that ‘ ‘ The change in this man’s condition since the above examination has been some improvement in vision, improvement in hearing and the additional symptoms of pain and swelling in right hand and wrist, hot and cold sensations and attacks of numbness in lower ex- trentities. The writer has seen this claimant on numerous occasions since his injury and I believe he is honest in his statements and that he has the symptoms he complains of. We know that this man sustained very serious injuries, we know he has considerable loss of vision, we know he has reduced hearing in right ear and we know that the train of symptoms that he complains of are those very frequently following serious head injuries that he had. I still am of opUvion that this claimant should be awarded a 50% permanent disability and claim elosed.” Claimant was notified, by letter of January 7, 1930, of the award of 50% disability.
On request of the employer, received just after notice of a 50% award had gone out to claimant, the Commissioner directed one of his inspectors to inquire into the earnings of complainant since the 25% award, and held up payment under the new award during such inquiry. After a consideration of the inspector’s report, which disclosed that claimant’s monthly earnings as slate picker on tipple and as trackman were averaging but slightly less than his earnings as coal loader (which was due to the fact that he had worked more days per month since the injury), the Commissioner set aside the 50% award.
It is contended by claimant that the matters set up in the report were not sufficient to warrant such action.
We have held in a number of cases that the finding of fact by the Compensation Commissioner should be treated as the finding of a judge, or a verdict of a jury, and will not, as a general rule, be set aside if there is substantial evidence- to support it. Kincannon v. Ott, Com., 108 W. Va. 428, 151 S. E. 311; Heaton v. Comp. Com’r., 106 W. Va. 563, 146 S. E. 368. Following this analogy, a finding, once made, should not be set aside by the Commissioner, except for good cause. The mere fact that the Commissioner’s jurisdiction is “continuing ’ ’ should not be interpreted as a license to set aside a finding on insufficient evidence. Once having acted, his finding must stand in the absence of some good reason for setting it aside. In State ex rel. Bunch v. Fortney, et al., 93 W. Va. 292, 116 S. E. 753, this Court held that once the Road Commission had determined to grant a permit, it could not change its finding, even though the permit had not been actually issued.
This brings us to a consideration of the evidential value of the inspector’s report. As already noted, it pertained to the wages being paid by the company, in whose employ the claimant was when injured. In order to.determine its evidential value, we must determine whether or not wages earned since an accident can be relied on in arriving at the percentage of disability. Our statute reads: “If the injury causes permanent disability, the percentage of disability to total disability shall be determined and the award computed and allowed as follows: * * * for a fifty per centum disability, fifty per centum of the average weekly earnings for a period of two hundred weeks.” Chapter 15P, section 31(c). “Disability” as used in a somewhat similar section in the New Jersey Act, which in many respects seems to parallel our Act, was held to refer to impairment of one’s physical efficiency. Burbage v. Lee, (1915) 87 N. J. L. 36, 93 Atl. 859; De Zeng Standard Co. v. Pressey, (1914) 86 N. J. L. 496, 92 Atl. 278, 279. In the last named case the point was urged that there cannot be a statutory “disability” when it appears that the earnings of the claimant had not been impaired. In answer the New Jersey court said: “It may well be that for a time an injured employee might be able to earn the same wages as before the accident; but, as we read the act, the disability intended thereby is a disability due to loss of a member or part of a member or a function, rather than the mere loss of earning power. Even if this were not so, it does not follow that the injured employee had not sustained a distinct loss of earning power in the near or not remote future and for which the award is intended to compensate. If it were a question of damages at common law, the elements of- damage would consist of present loss of wages, probable future loss of wages, pain and suffering, and temporary or permanent disability, which loss the jury would be at liberty to assess quite independently of the fact that the plaintiff was earning the same wages, except so far as that fact might be evidential with regard to the extent of the disability. ’ ’ In the Burbage case it was held that the mere fact that a claimant was employed at the same work and the same wages as before the injury will not disentitle him to compensation under the act if his physical efficiency has been substantially impaired. A somewhat similar position was taken by the Kansas Court in the case of Gailey v. Peet Bros. Mfg. Co., (1916) 98 Kan. 53, 157 Pac. 431, although the statute in that state makes use of the expression “partial incapacity for work” instead of “disability”. In that case the employee, who, as a result of an injury to his fingers, could not tightly close them in his hand, and was thereby rendered less able to perform his work, was held to be partially incapacitated from performing labor. The case also held that the employee did not lose his right to compensation under the act by remaining in the employment of his master at his former wages.
From a consideration of the above eases, we find that, regardless of the expression used, in cases not coming within a specific percentage rating, both the New Jersey and Kansas acts have been construed so that the claimant might receive compensation commensurate with his actual disability — keeping in view the effect of the injury upon his future ability to work. In other words, in determining the percentum of injury in such cases, the courts have recognized the fact that a laborer, in an endeavor to adequately provide for his family, may earn the same wages for a time after the injury as he did before, but that the injury will in due time exact its toll. A desire to work and get ahead should not work to the disadvantage of a worthy claimant. He must look to the future. The fact that claimant was fortunate enough to get in more days work per week (though at less pay) than he had prior to the injury, and thereby earn something near what he had prior to the accident, should have no bearing on the case, in so far as determining the percentum of “disability” is concerned.
An added reason for such position appears in section 40, Chapter 71, Acts 1929, providing that a claim in such cases cannot be re-opened after the expiration of one year from the date of the last payment of any given award. While employment is purely optional with the employer, if wages were indicative of the degree of disability, he could, in many cases, afford to take the injured employee back and possibly pay him a little more than his services were actually worth, and later dispense with such services altogether. While the record in the instant case does not disclose such action on the part of the employer, a letter does appear therein to the effect that the employee, shortly after the setting aside of the award, was without work and unable to get work.
In ascertaining the degree of the physical impairment, the occupation'to be considered in making a disability rating is usually that at which the employee was engaged at the time of the injury. 1 Honnold on Workmen’s Comp. 597.
It also appears from the record that the facts set forth in the inspector’s report were substantially the same as those which were before the Commissioner at the time of his finding of a 50% permanent disability, the only difference being a slight increase in the earnings per month, due to an advance in daily wages.
In view of the foregoing principles, and the language used in our statute, which seems to grant compensation on “disability ’ ’, or the impairment of one’s physical efficiency based on employment in which the applicant was performing service at the time of his injury, we feel that the report was insufficient to warrant the Commissioner’s action.
The action of the Commissioner will be reversed, and the case remanded with directions to pay the compensation under the 50% permanent disability award.
Reversed; judgment here. | [
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Dent, President:
This is a controversy between the town of Weston, defendant, and Er Ralston, plaintiff, over the right to a public easement in a small strip of land thirteen and one-half feet by seventy-two and one-half feet, being a part of Water street, as originally laid off and dedicated to public-use at a very early date, almost beyond the memory of man, by Maxwell and Stringer, who sold lot 12, adjacent to such strip, to those under whom plaintiff claims title. While plaintiff raises the question of dedication and acceptance, as is usual in similar cases, his main reliance is on adverse possession under a claim of title for a much longer period than the .statute of limitations. From the evidence this case clearly comes within the rules of law and principles determined in the case of Taylor v. Philippi, 35 W. Va, 554, (14 S. E. 130), and Jarvis v. Town of Grafton, 44 W. Va. 453, (30 S. E. 178); for the reason that the original occupation of the strip in controversy, and the continuance thereof, was under the sufferance and permission of the municipal authorities, and no claim was made thereto, under the statute of limitations, until it was supposed that, under the decision in the casé of City of Wheeling v. Campbell, 12 W. Va. 36, as followed in the cases of Forsyth v. City of Wheeling, 19 W. Va. 318, and Teass v. City of St. Albans, 38 W. Va. 1, (17 S. E. 400), the public easement therein was barred, and could not be regained except by recourse to the right of eminent domain. The original occupation not being adverse, it could not become so until the defendant had positive notice that the plaintiff was going to set up a claim of title perfected by adverse possession. Hutson v. Putney, 14 W. Va. 561; Industrial Co. v. Schultz, 43 W. Va. 470, (27 S. E. 255); Creekmur v. Creekmur, 75 Va. 430; 1 Am. & Eng. Enc. Law (2d Ed.) 798. If tbe plaintiff bad at any time during bis long possession given tbe defendant notice that be intended to bold tbe land adversely, there is no doubt be would at once bave been dispossessed, and no lapse of time, and no possession of a portion of a street not required by tbe present necessities of tbe public, could raise the presumption of such notice; for the reason that there is nothing inconsistent with a public easement for tbe authorities to allow an abutting landowner tbe temporary occupation of a public highway not demanJdled for tbe present use of tbe public. It requires great labor and expense to grade, curb, and pave tbe streets of a town, and it is never done until tbe exigencies of tbe town demand it, and unused streets are allowed to lie idle until such requirement, and in tbe meantime there is no good reason why abutting lot owners may not use unoccupied portions of such street for private purposes, so long as such use does not interfere with, but is entirely subordinate to, tbe public use thereof. Such has long been the custom, and would continue so, to tbe benefit of individuals and without hurt to tbe public, were it not for tbe baneful effect of tbe conclusion arrived at by this Court in tbe case of City of Wheeling v. Campbell, cited.
Tbe question of dedication and acceptance is hardly worthy of consideration, from tbe fact that plaintiff is not tbe original owner of tbe land, but claims under a deed and plat by which such street was dedicated to tbe public, and, it being inconsistent with bis title papers, be is estopped from denying such dedication. Such dedication was not an act of bis, but was long prior to bis deed, which recognized and adopted the same. Tbe same may be said of tbe acceptance by tbe defendant. It was perfect before bis title accrued, in subordination thereto. Jarvis v. Town of Grafton and Taylor v. Philippi, before cited; Riddle v. Town of Charlestown, 43 W. Va. 796, (28 S. E. 831); Taylor v. Com., 29 Graft. 780; Depriest v. Jones, (Va.) 21 S. E. 478; Button v. City of Danville, 93 Va. 200, (24 S. E. 830); 9 Am. & Eng. Enc. Law (2d Ed.) 46.
Although, on tbe question of adverse possession, plaintiff has failed to make out bis title, yet as this question is of such general importance, and has been so ably and ex haustively argued by the attorneys of both parties, the Court would be derelict in its duty not to squarely meet the issues raised, and fearlessly settle them for the public good. The point is at once presented whether the law justifies the Court in reviewing, disapproving or modifying the doctrines enunciated, and conclusion reached, in the case of City of Wheeling v. Campbell, followed in the cases of Forsyth v. City of Wheeling and Teass v. City of St. Albans, and recognized in the case of Taylor v. Philippi and Jarvis v. Town of Grafton,, all heretofore cited.
The case of City of Wheeling v. Campbell, while ably considered in following the supposed weight of authority, is a plain and palpable misapplication of the statute of limitations to the sovereign rights of the people. That the statute of limitations applies to municipal corporations there can be no question; that it now applies to the State in like manner as to individuals, by express statutory provision, there can be no question; but it does not apply to the sovereign rights of the people, except as they are restricted in the constitution by their manifest will therein contained. In the case of Levassas v. Washburn, 11 Grat. 576, quoted and approved by Judge Johnson in the case of City of Wheeling v. Campbell, Judge Lee says: “It is a maxim of great antiquity in the English law that no time runs against the crown, or, as is expressed in the early law writers, 'Nullum tempus occurrit regi.’ The reason sometimes assigned why no laches shall be imputed to the king is that he is continually busied for the public good, and has no leisure to assert his rights within the period limited to his subjects. A better reason is the great public policy of preserving public rights and property from damage and loss through the negligence of public officers. This reason certainly is equally, if not more, cogent, in a representative government, where the power of the. people is delegated to others, and must be exercised by these, if exercised at all; and accordingly the principle is held to have' been transferred to' the sovereign people of this country, when they .succeeded to the rights of the king of Great Britain, and formed independent governments in their respective states. And, though it has sometimes been called a prerogative right, it is, in fact, nothing more than an exception or reservation introduced for the public bené- fit, and equally applicable to all governments.” The constitution of this State clearly shows in whom all sovereign rights reside. Section 2 of Art. II. declares: “The powers of government reside in all of the citizens of the State and can be rightfully exercised only in accordance with their will and appointment.” Section 2, Art. III. declares: “All power is vested in and consequently derived from the people. Magistrates are their trustees and servants and'at all times amenable to them.” The people, in their collective capacity, are sovereign. To them all so-called “prerogative rights” belong, and from them they cannot be taken, ■ or in any wise diminished except in accordance with their own appointment. This State has no so-called “crown lands” or public domain, except its public highways, including roads, streets, alleys, and other thoroughfares devoted to the use of the general public, and also probably a few public squares and buildings. There are no parks which belong exclusively to the general public. State lands are only held temporarily, until they can pass into the hands of private individuals, who will pay the taxes thereon. So that we can wmll say that its highways are the only property the people of West Virginia hold in their sovereign capacity, and in these every individual has the -same right, from the least to> the greatest, and from which no one, however weak or small or mean, can be excluded. These are dedicated to the public business of the country, to its traffic and commercial' interests, and without which the same could not thrive, if even exist. They are the pathways of communication from house to house, town to town, city to city. They are absolute necessities for the happiness, comfort, and _well being of the people. The man who would destroy them, if he could, is an enemy to the community, fit only “for treason, stratagem, and spoils.” It matters not whether they be in the town or country, the same protecting egis watches over them, and this is the sovereignty of the people. The public do not hold the title in fee. It may be in the original owner, the abutting lot owners, the municipality, or State, and there it rests in abeyance as long as the land is needed by the public, who hold only an easement therein. This easment is more potent because of its sovereign character, and while it exists entirely suspends the title, or renders it tern- porarily nonexistent, for no man dare assert it. The word “state” i's generally used to denote three different things, and often without discrimination: First, the territory within its jurisdiction; second, the government or governmental agencies appointed to ¡carry out the will of the people; and, third, the people in their sovereign capacity. The State is not the sovereign in this country. The people who make it are sovereign, and all its officers are but their servants. So, statutes of limitations, which are made to apply to the State, do not apply to the people or their public rights. But they only apply to the State in the same cases that they apply to individuals. The entry' upon, or recovery of, lands held for sale, suits on bonds, contracts, evidences of debt, or for torts, — all these, though the State is a party, are subject to bar. As to all such things, there is no reason why the State should have any longer time than an individual. Such is not the case with the rigiht of taxation, the right of eminent domain, the right to use the public highways, and other rights, which pertain only to the sovereignty of the people. None of these can ever be lost by the negligence of the public servants, who have no power of disposal over them in any way whatever, except according to the express will of the people. It would be a strange thing for an individual to plead the statute in bar of the right of eminent domain, which is said to be the right of the people to take private property for public use. The right to keep it for public use should be'as extensive as the right to take it; for one would be useless without the other. The former is said to be an attribute of sovereignty, and why not the latter? Some law writers, at least, estimate that the State, as representative of the people, may both take, hold, and control property for public use, under the right of eminent domain, “as the public safety, necessity, convenience, or welfare demand.” Cooley, Const. Lim. 524. Others limit the meaning of “eminent domain” in its application to the appropriation by a sovereign State of private property for particular uses, for the benefit of the public. “All other exercises of power over private property, and.every species of right in, and control and regulation over, property of a public nature, may properly be referred, as we have shown, to some other of the sovereign powers of the State.” Lewis, Em. Dom. section 2. Tbis author refers the bolding of property to tbe sovereign right of proprietorship for the public good. In all cases where the sovereign rights of the State are referred to, the State is spoken of as representative of the people, and not of the territory or the government, or its agencies. The State, in its governmental capacity, has no right to alien, or authorize the alienation, of the public highways, except for the public good; but it may provide subagencies to control, make, repair, and otherwise exercise complete supervision over such highways, and make such agencies responsible for the good condition thereof, through their servants. Such it has done, by turning the roads, streets, alleys and other thoroughfares over to the counties, district and municipalities, being the political divisions in which they are respectively located, and has authorized such agencies to close, vacate, change, alter, or discontinue any of them no longer of benefit to the public. But such agencies have no right to sell, alien, or dispose of such highways in any manner, except as provided by statute. Nor can any individual destroy the public easement in such highway by any act of his own. It is a new quality given to land, when dedicated to the use of the public as a highway. And it is one that an individual can neither acquire nor enjoy by himself. When land ceases to be a highway, this quality no longer attaches to it, but it is utterly destroyed or becomes extinct. It belongs to the public, and not to the State, county, or municipality that may in their governmental capacities, under their police and administrative powers, regulate and control it in such manner as will conduce to the public welfare, and may destroy it if in accord with the sovereign will of the people, but not otherwise. If the easement is destroyed by the proper agency of the people, the title is revived, and the land reverts to the owner of the fee, whether it be the municipality, the abutting owners, or the original owner who first dedicated it to public use. If the easement is interfered with by an individual while it is alive, such interference is a public nuisance, and it matters not how long it is continued, it can never destroy the easement; for it is under the ban of the law, and subject to abatement at any time. A nuisance can never oust a public easement, no more than an individual can take away the sovereignty of the people. He may for- feifc bis property and rights to them, but they can never, in a popular government, forfeit their sovereignty to him. He may cease to be a part thereof, but cannot enjoy more than his equal .share therein. His nuisance must yield to their sovereignty, whenever they see fit, through their proper agencies, to exercise it. Once a' nuisance, always a nuisance; once a highway, always a highway, until legally discontinued, changed, or altered. Norfolk City v. Chamberlaine, 29 Grat. 534; Taylor v. Com., Id. 780; Yates v. Town of Warrenton, 4 Va. 337, (4 S. E. 818); Depriest v. Jones (Va.) 21 S. E. 478; Buntin v. City of Danville, 93 Va. 200, (24 S. E. 830); Board of Sup'rs of Logan Co. v. City of Lincoln, 81 Ill. 156; Driggs v. Phillips, 103 N. Y. 77, (8 N. E. 514); City of Vicksburg v. Marshall, 59 Miss. 563; Rae v. Miller, 99 Iowa, 650, (68 N. W. 899); Wolfe v. Pearson, 114 N. C. 621, (19 S. E. 624); Crocker v. Collins, 37 S. C. 327, (15 S. E. 951); Williams v. City of St. Louis, 120 Mo. 403, (25 S. W. 561); Ulman v. Charles Street Ave. Co., 83 Md. 130, (34 Atl. 366); Coleman v. Thurmond, 56 Tex. 514; Webb v. City of Demopolis, 95 Ala. 116, (13 South. 289); City of Visalia v. Jacob, 65 Cal. 434, (Pac. 433); Wolfe v. Town of Sullivan, 133 Ind. 331, (32 N. E. 1017); City of Quincy v. Jones, 76 Ill. 231; Elliott, Roads & S. 668.
The reason given by Judge Johnson why the maxim of linullum tetnpus" etc., cannot apply to municipalities, ■is ‘‘that it only applies to sovereignty, and the sovereign cannot transmit it to persons or corporations. A municipal corporation cannot claim exemption under it, any more than a natural person, although it may hold property in tru.st for the public.” In short, that if a sovereign Intrusts his property to a trustee to take care of for him, when one of his subjects presents himself and wrongfully proposes to appropriate the sovereign’s property to his own use, the trustee cannot defend it as the property of the sovereign, but must let it go. So it may be said of the county, so it may be said of the State, and every public officer or agency; for they are all merely trustees and servants of the people. And, if such trustees are powerless to protect the rights of the sovereign people, then such sovereign has no rights that can be protected from individual encroachment, for the reason that the sovereignty of the people must be asserted through such gov ernmental agencies or not asserted at all. Judge Johnson invests the State with sovereignty which belongs alone to the people, and of which the State is the mere trustee, except when the word is used in a broad sense, to designate the people, and not governmental agencies. The people have the power to impose the duty of protecting their sovereign rights on any public agency or individual officer or person they may see fit and proper, and the fact that they do impose such duty on trustees or agents cannot possibly destroy such rights without their consent. And it is the duty of every man, woman and child in this State, who enjoys the protection of the laws of the land, including the use of its highways, to aid in preserving such public sovereign rights intact, instead of seeking to overthrow and destroy them. The king of England intrusted his highways to supervisors and local authorities, yet it never entered even the imagination of his subjects that by reason thereof they could acquire rights against him in his highways by means of nuisances maintained therein for any length of time. The people of this country succeeded to all his rights, and more than he are compelled to transact their business through local agencies, and there is no more reason that they, by so doing, should lose their rights than he. Their sovereignty is far more pervading than his, for it has representation of pure blood in every household throughout the length and breadth of their domain. The oversight in the learned Judge’s opinion, and the numerous decisions on which he places his reliance, is his failure to distinguish the municipality in its private, ministerial, and local governmental capacities from the municipality in its higher governmental capacity as the agent of the public, charged with the duty of preserving the sovereign rights of the people. The municipality, though it may own the fee, is not the owner of the public easement in the land. This, as heretofore shown, belongs to' the people, and cannot exist apart from them. This the municipality cannot alien or dispose of in any manner except in accordance with the express will of the people, for thei'r benefit. The statute of limitations, as relied on by the plaintiff, is not to bar any right the municipality has in the street, but to destroy the public easement. It is not a plea against their trustee, but a plea against the people in their sovereign capacity. If sustained, it does not oust the municipality, for its governmental control thereover still remains, but it ousts the people, even taking away their ■own right to use the street as a public highway. The same argument would deprive the people of any highways in the State if its governmental agencies are only neglectful of their duties; for all their highways are intrusted to local agencies. The doctrine of “nulle tempus," etc., must apply to the rights of the people as the sovereign, it matters not what agency is intrusted with their care, or it must be altogether discarded in a popular form of government. And the people must be known as the uncrowned king, without a kingdom. Such sovereignty would be as helpless as Gulliver when staked to the ground by Lilliputians with hairs from his own head. The argument that municipalities should be specially diligent in looking after the rights of the people, or the people should suffer the loss thereof, is applicable to any public agency as well as municipalities, in England, as well as in America, and it was the want of such diligence, and the negligence of such agencies, that furnished the most reasonable foundation for the doctrine nullum tempnsetc. To repeat Judge Lee’s language: “A better reason is the great public policy of preserving public rights and property from damage and loss through the negligence of public officers.” It does not matter whether such officers belong to a municipality, district,, or a county, they are all public officers, so far as the public highways are concerned, and their negligence has the same disastrous effect on the public. City of Charleston v. Beller, 45 W. Va. 44, (30 S. E. 152.) The only logical conclusion that can possibly be reached is that the public easement in all the highways of the State, wherever situated, is sacred from individual encroachment, and all interference therewith, by private interests, is a continuing public nuisance, subject to abatement whenever the growing necessities of the people require such easement for the uses to which the land to which it attaches was originally dedicated. O’Connor v. Pittsburg, 18 Pa. St. 187. This conclusion, though adverse to City of Wheeling v. Campbell, is sustained by a vast and increasing weight of authority, including England, Canada, the United States, the states of Alabama, California, Colorado, Indiana, Illinois, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, New York, New Hampshire, North Carolina, New Jersey, Ohio, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Washington, Wisconsin, 'and Virginia. Many of the authorities have been heretofore cited. See, also, 1 Am. & Eng. Enc. Law (2d Ed.) 878-880, where the authorities pro and con are collected. Whenever a decision of this Court is found, on careful consideration, to be illogical, opposed to public policy, and subversive of the supreme law of the land, the public welfare, and the sovereignty of the people, and, while not a nuisance per se, is the bulwark of nuisances and defense of unconscionable private demands, the source of continual local strife and litigation, and destructive of the peace of whole communities, it is the solemn duty of this Court to disapprove it and end its evil influences. Lieb. Herm. 208; 23 Am. & Eng. Enc. Law, 36; Mayer v. Frobe, 40 W. Va. 246-262, (22 S. E. 58). The decision in the case of City of Wheeling v. Campbell, instead of being a matter of repose, appealing, as it does, to the cupidity of human nature, has opened wide the door to numerous encroachments on the rights of the people by those whose selfish covetousness blind their eyes to the greater obligation they owe to the sovereign power in this land, which secures to them the blessings of liberty protected by law. Every law-abiding citizen, who loves, respects and cherishes the institutions of his country, is charged with the patriotic duty, through fealty to the people, to preserve all public rights intact. If there are those whose sentiment to public obligation is so weak as to cause them, through their promptings of private gain, to become exploiters of public rights, they should find no countenance in the decisions of the courts. The law can never be made the instrument of its own destruction in the hands of lawbreakers, nor .should it afford protection where allegiance is wanting. The doctrine of stare decisis cannot be invoked to perpetuate public nuisances or destroy the sovereignty and welfare of the -people. The cases of City of Wheeling v. Campbell, Forsyth v. City of Wheeling, and Teass v. City of St. Albans, in -so far as they hold that public ease ments in the public highways can be destroyed by private individuals contrary to the sovereign will of the people, are hereby disapproved as erroneously propounding the law.
Nor does the doctrine of estoppel apply in such cases. Roper v. McWhorter, 77 Va. 214, 222; 1 Dill. Mun. Corp. sections 96, 381, 749; Green’s Brice, Ultra Vires, 42, 597; Mayor v. Ray, 19 Wall. 468; Williamson v. Jones, 43 W. Va. 562, 574, (27 S. E. 411;) Webb v. City of Demopolis, 95 Ala. 116, 13 South, 289; 1 Am. & Eng. Enc. Law, 882. The statute of limitations is a mere legal estoppel, and, if not applying to legalize a public nuisance, neither does equitable estoppel; for equity follows the law, and will grant no relief to a lawbreaker or wrongdoer. Clean hands and a clear title are always equitable requirements. Bell v. City of Burlingtou, 68 Iowa, 296, (27 N. W. 245;) Cheek v. City of Aurora, 92 Ind. 107. In 2 Dill. Mun. Corp. (4th Ed.) section 675, it i's said: “Such a corporation does not own, and cannot alien, public streets or places, and no mere laches on its part, or on that of its officers, can defeat the right of the public thereto; yet there may grow up in' consequence private rights of more persuasive force in the particular case than those of the public. * * * The author cannot assent to the doctrine that, as respects public rights, municipal corporations are impliedly within ordinary limitation statutes. It is unsafe to recognize such a principle. But there is no danger in recognizing the principle of an estoppel in Jais as applicable to exceptional cases, since this leaves the courts to decide the question, not by mere lapse of time, but upon all the circumstances of the case, to hold the public estoppel or not, as right and justice may require.” In this the rights of the people are confounded with the rights of the'municipality. How can equitable estoppel, any more than the statute of limitations, deprive a sovereign of his rights, and permit his subjects to destroy them by their wrongful conduct? The use of their highways is a sovereign right, common to all the people, and of which they cannot be devested, except in accordance with their will and appointment for the public weal. The law is best enunciated in the case of Webb v. City of Demopolis, 95 Ala. 116, 13 South. 289, where it is held that “a ciity or town has no alienable interest in the public streets thereof, but holds them in trust for its citizens and the public generally; and neither its acquiescence in an obstruction or private use of a street by a citizen, or laches in resorting to legal remedies to remove it, nor the statute of limitations, nor the doctrine of equitable estop-pel, nor prescription, can defeat the right of a city to maintain a suit in equity to remove the obstruction.” The words, “holds them in trust,” are objectionable; for the reason that the people generally hold them and own the public'easement, and the municipality merely has authority to supervise and keep them in repair and free from obstructions for the benefit of the whole people and the stranger within their gates. There may arise cases of particular hardship, where, through the negligence or mistake of the public officers, valuable permanent improvements, under a bona fide claim of right, may be erected by the abutting lot owners, invading and destroying, without wrongful intent, the public easement in- a portion of the adjacent street. Such mistakes are often occasioned by different surveyors, with different instruments. Such invasion is sometimes slight in comparison with the improvements made, and at other times it is much more serious, not only destroying the public easement, but interfering with the regularity and symmetry of the street. To1 abate such .structures as an ordinary nuisance would be a tyrannical act of governmental power, which finds no lodgment in the breasts of a free and just people. The mistake having been mutual or occasioned by the negligence of the public, and the property owner being free from evil intent, the loss should fall on the people, as most able to bear it, rather than on the individual, who may be rendered bankrupt if he must endure it. Such cases are provided for in section 9, Art. III. of the Constitution in these words: “Private property shall not be taken or damaged for public use without just compensation.” This is a limitation put on the sovereignty of the people by the .sovereign itself. It is intended for the public good, and to prevent oppression and injustice. Whenever private property is taken or damaged for public use, it must be done through the public officers, acting as the agents of the people. And for these same officers to mislead, either by acts of omission or commission, a private person into building a costly structure over the line of a public highway, in the belief that he was within the limits of his own property, and then demolish or remove it as a public nuisance, would be taking and damaging private property for public use without just compensation. Hence, to regain the use of the highway lost in this manner, they must do so under the right of eminent domain, in so far as the intrusive structure is concerned. The land need not be condemned, but the damage to the structure, by the removal thereof, should be paid. Such exception does not apply to one who knowingly invades a highway. He must bear the loss occasioned thereby, and not the public. It is his own injury, and he must endure it alone. In the present case, the plaintiff, fully informed by his title papers, of his rights, wilfully invaded the street. In the case of Spencer v. Railroad Co., 23 W. Va. 406, Judge Green, on page 422, intimates that the abutting lot owner’s title extends to the middle of the highway. If such be the law, the title to the land in controversy is in plaintiff, subordinate, however, to the public easement; and, so long as he did not interfere with the public, he had the right to use this land for his private purposes, but, as soon as the necessities of the public required, he should have yielded it without controversy. This would have been in accord with his higher duty to the public, and would have .showed that, in occupying the land, he was not actuated with any unlawful motive. But when he refused to surrender his possession, on demand of the proper legal authorities, he became guilty of maintaining a public nuisance, subject to abatement, either by the municipal authorities, under their statutory powers, or by an appeal to a court of equity. This cause having been instituted in a court of equity, it will not be dismissed without doing complete justice between the parties. Hotchkiss v. Plaster Co., 41 W. Va. 367, (23 S. E. 576.) The decree complained of is reversed, and this cause is remanded to the circuit court, with direction that the plaintiff’s injunction be dissolved, and that a mandatory injunction be awarded the defendant, at the plaintiff’s costs, directing the plaintiff to abate the nuisance maintained by him thereon, and that the strip of ground in controversy be restored to Water street, and made .subject to the public easement therein, and to be further disposed of according to the principles of equity.
Reversed. | [
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Dent, Judge:
The West Virginia & Pittsburg Railroad Company obtained a writ of error to the judgment of the circuit court of Harrison county confirming the judgment of a justice of the peace in favor of Lavernia E. Young, administratrix, for the sum of one hundred and twenty dollars. The only error relied on is that the verdict of the jury was contrary to the law and the evidence. The plaintiff’s intestate and his horse were killed, and his buggy was badly damaged, at a crossing in the county of Harrison, a few miles from Clarks-burg. This suit was to recover the damages occasioned by the loss of the horse and injury to the buggy. The negligence insisted on against the company was that the train was running one hour late, at an unusual speed, and the engineer and fireman were negligent in not keeping a proper lookout at this known to be dangerous crossing, and in not giving the proper signals required by statute. The defense was contributory negligence on the part of the deceased. The evidence of numerous witnesses was taken, which is plainly conflicting as to whether the signals were given, while all the circumstances show that a proper lookout for this crossing was not being kept. The fireman testifies that the deceased, on seeing the train coming, whipped up his horse, and endeavored to cross ahead of the train, while there are some facts and circumstances tending to contradict him, and the jury hearing his evidence and seeing him testify refused to credit his statement. In the absence of the deceased, the evidence being so conflicting, and dependent to some extent on the manner, beaifing, and conduct of the witnesses, this Court is unable to say that the jury did not properly weigh the evidence, and fairly determine the credibility of the witnesses. It is therefore impossible to hold that the evidence manifestly and decidedly preponderates against the verdict. As to questions of fact dependent on oral testimony, the verdict of a jury is entitled to great consideration and weight, and it should not be lightly set aside because the evidence, as contained in the record, may apparently, in comparing the number of witnesses, be against the finding, for there are many thing's besides the testimony of the witnesses as taken down by a reporter that the jury is permitted to consider, and of such character that they cannot be made to appear in the record for the inspection of this Court. Akers v. Dewitt, 41 W. Va., 229, (23 S. E. 669); Sisler v. Shaffer, 43 W. Va., 769, (28 S. E. 721). Ia accordance with the former rulings of this Court in similar cases, the judgment is affirmed. | [
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McHUGH, Justice:
The appellants, Asbestospray Corporation, Pfizer, Inc., and W.R. Grace & Co., appeal the September 14, 1998 order of the Circuit Court of Monongalia County which vacated the jury’s verdict, for the appellants and granted a new trial. This case arose as an asbestos property damage case in which the appellees, the State of West Virginia, the City of Spencer and the Monroe County Commission, sought monetary relief for the removal and/or management of asbestos from its public buildings.
I.
The appellants were the manufacturers of the asbestos-containing building materials that may have been installed in twenty-six buildings throughout the State between 1958 and 1973. The appellees filed an action seeking monetary relief for the removal and/or management of the asbestos from its public buildings against the appellants.
After a six-month trial, in which a tremendous amount of evidence was presented to the jury, the trial judge instructed the jury that the asbestos-containing products involved in this case are defective as a matter of law. Therefore, the jury only was to consider whether the appellants’ products were present in one or more buildings, and if their products were present, the amount of damages which should be awarded to the appellees, including past and future costs for in-place management and/or removal.
The jury returned a verdict finding that the appellees were entitled to no damages. Thereafter, the trial judge vacated the jury verdict in a September 14, 1993 order stating:
The Court DIRECTED LIABILITY as a matter of law that asbestos-containing products are inherently dangerous products. This left for the jury the issue of whether the plaintiffs proved that the respective defendants had such products in the buildings at issue, and, if so, the damages resulting from their presence. Therefore, the Court did not direct liability as to any one or more specific defendants. However, during the trial, on the issue of product identification, the existence of a defendant’s product was admitted to be in several of the plaintiff’s [sic] buildings by more than one of the defendants. Additionally, there was more than substantial evidence that all defendants had products in one or more of the subject buddings. There was also an abundance of evidence on the cost of maintenance, removal, and/or repair relating to the products. Nevertheless, the jury returned a verdict of ‘0’ damages. This verdict is manifestly inadequate given the proof presented in the trial of this matter.
The trial judge went on to state that the jury verdict was a “type 1” inadequate award under Freshwater v. Booth, 160 W.Va. 156, 233 S.E.2d 312 (1977); therefore, he vacated the jury’s verdict and awarded a new trial only on the issues of product identification and damages.
The appellants have asked us to review the trial judge’s September 14, 1993 order. After arguments before this Court on May 4, 1994, this Court requested the parties to provide additional information to assist it with its examination of the voluminous record. Thereafter, the parties reargued the case before this Court on November 2, 1994.
II.
The first issue is whether the trial judge improperly vacated the jury’s verdict and awarded a new trial. In order to resolve this issue, it is necessary to establish the appropriate standard of review of the trial judge’s decision.
A trial judge has the authority to vacate a jury verdict and award a new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure which states, in relevant part: “A new trial may be granted to all or any of the parties and on all or part of the issues ... in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law[J” Rule 59 merely recognizes the common law principle that a judge may vacate a verdict of the jury. 11 Charles Aan Wright and Arthur R. Miller, Federal Practice and Procedure § 2801 at 27 (1973).
Athough the trial judge should rarely grant a new trial, the trial judge, nevertheless, has broad discretion to determine whether or not a new trial should be granted: “Courts do not grant new trials unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done.... Ultimately the motion invokes the sound discretion of the trial court, and appellate review of its ruling is quite limited.” Wright & Miller, supra at § 2803 at 32-33 (footnotes omitted). However, it has been pointed out:
There are few subjects in the entire field of procedure that have been subject to so much change and controversy in recent years as the proper scope of review of an order granting or denying a motion for a new trial. The trial court has very broad discretion and the appellate courts will defer a great deal to his exercise of this discretion. This much is settled.
Wright & Miller, supra at § 2818 at 118.
On several occasions this Court has addressed the standard of review to be accorded to the decision of the trial judge to set aside a jury verdict and award a new trial. In syllabus points 4 and 5 of Kesner v. Trenton, 158 W.Va. 997, 216 S.E.2d 880 (1975), this Court held:
4. ‘The judgment of a trial court in setting aside a verdict and awarding a new trial is entitled to peculiar weight and its action in this' respect will not be disturbed on appeal unless plainly unwarranted.’ Syllabus point 3., Young v. Duffield, 152 W.Va. 283, 162 S.E.2d 285 (1968).
5. The test in reviewing a judgment setting aside a jury verdict and awarding a new trial is whether the trial court’s discretion in supervising verdicts, so as to prevent a miscarriage of justice, has been abused.
Additionally, in syllabus points 2 and 4 of Young v. Duffield, 152 W.Va. 283, 162 S.E.2d 285 (1968) this Court further provided:
2. ‘It takes a stronger case in an appellate court to reverse a judgment awarding a new trial than one denying it and giving judgment against the party claiming to have been aggrieved.’ Point 1, Syllabus, The Star Piano Co. v. Brockmeyer, 78 W.Va. 780 [, 90 S.E. 338 (1916)].
4. An appellate court is more disposed to affirm the action of a trial court in setting aside a verdict and granting a new trial than when such action results in a final judgment denying a new trial.
Another syllabus by this Court emphasizes the legal principle that this Court will not review an order setting aside a jury verdict and awarding a new trial unless it was an abuse of discretion for the trial judge to enter such order:
A trial judge is not merely a referee but is vested with discretion in supervising verdicts and preventing miscarriages of justice, with the power and duty to set a jury verdict aside and award a new trial if it is plainly wrong even if it is supported by some evidence, and when a trial judge so acts, his decision, being in discharge of his power and duty to pass upon the weight of the evidence to that limited extent, is entitled to peculiar weight and will not be disturbed on appeal unless clearly unwarranted.
Syl. pt. 1, Cook v. Harris, 159 W.Va. 641, 225 S.E.2d 676 (1976).
This Court, however, has previously interjected itself into the analysis of whether a new trial was properly granted by setting forth standards regarding how the evidence should be weighed:
‘In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.’ Syllabus point 3, Walker v. Monongahela Power Company, 147 W.Va. 825, 131 S.E.2d 736 (1963).
Syl. pt. 3, McNeely v. Frich, 187 W.Va. 26, 415 S.E.2d 267 (1992). However, this type of analysis is misleading in light of the purpose of Rule 59.
Under Rule 59, the trial judge has the authority to weigh the evidence as if he or she were a member of the jury. 3 Charles Alan Wright, Federal Practice and Procedure § 553 at 247 (2d ed. 1982). As Charles Wright explains:
[O]n a motion for a new trial — unlike a motion for a directed verdict or for judgment notwithstanding the verdict — the judge may set aside the verdict even though there is substantial evidence to support it. He is not required to take that view of the evidence most favorable to the verdict-winner. The mere fact that the evidence is in conflict is not enough to set aside the verdict. Indeed the more sharply the evidence conflicts, the more reluctant the judge should be to substitute his judgment for that of the jury. But on a motion for a new trial on the ground that the verdict is against the weight of the evidence, the judge is free to weigh the evidence for himself. Indeed it has been said that the granting of a new trial on the ground that the verdict is against the weight of the evidence ‘involves an element of discretion which goes further than the mere sufficiency of the evidence. It embraces all the reasons which inhere in the integrity of the jury system itself.’
11 Wright & Miller, supra at § 2806 at 43-45 (1973) (footnotes omitted). After all, “[t]he trial judge was on the spot and is better able than an appellate court to decide whether the error affected the substantial rights of the parties.” Id. at § 2818 at 119-20. Similarly, this Court has recognized when addressing the trial judge’s authority to award a new trial that “[t]he trial court has opportunities to observe many things in the course of a trial which the printed record presented to an appellate court does not disclose[.]” Browning v. Monongahela Transport Co., 126 W.Va. 195, 203, 27 S.E.2d 481, 485 (1943). The United States Court of Appeals of the Fourth Circuit has best explained the standard of review:
A motion for a new trial is governed by a different standard from a directed verdict motion.... Under Rule 59 of the Federal Rules of Civil Procedure, a trial judge may weigh the evidence and consider the credibility of the witnesses and, if he finds the verdict is against the clear weight of the evidence, is based on false evidence or will result in a miscarriage of justice, he must set aside the verdict, even if supported by substantial evidence, and grant a new trial.
Poynter v. Ratcliff, 874 F.2d 219, 223 (4th Cir.1989) (citations omitted).
Therefore, to the extent that we have drifted in the past from the proper standard of review to be accorded to a trial judge’s order which vacated the jury verdict and awarded a new trial, we clarify and hereafter emphasize that the role of the appellate court in reviewing a trial judge’s determination that a new trial should be granted is very limited. Accordingly, we hold that a motion for a new trial is governed by a different standard than a motion for a directed verdict. When a trial judge vacates a jury verdict and awards a new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure the trial judge has the authority to weigh the evidence and consider the credibility of the witnesses. If the trial judge finds the verdict is against the clear weight of the evidence, is based on false evidence or will result in a miscarriage of justice, the trial judge may set aside the verdict, even if supported by substantial evidence, and grant a new trial. A trial judge’s decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion.
In light of these principles, did the trial judge abuse his discretion when he awarded a new trial? The trial judge’s order indicates that he evaluated the evidence and credibility of the witnesses when making his decision. For example, the trial judge stated that, not only did some of the appellants stipulate that their products were in the appellees’ buildings, but also “there was more than substantial evidence that all [appellants] had products in one or more of the subject buildings.” As we stated previously, a trial judge, unlike this Court, is in a unique position to evaluate the evidence and determine whether or not the evidence indicates that the appellants’ products were in the building. Therefore, even though it may appear that the evidence was controverted as to whether or not the appellants’ products were located in the appellees’ buildings, we do not find the trial judge abused his discretion when he set aside the verdict and granted a new trial.
Additionally, the trial judge determined that the verdict was manifestly inadequate because there was “an abundance of evidence on the cost of maintenance, removal, and/or repair relating to the products.” As we stated previously, the jury awarded no damages to the appellees. The appellants argue that they presented evidence that there would be no harm from their asbestos-containing products in the future.
A similar argument was made in City of Greenville v. W.R. Grace & Co., 827 F.2d 975 (4th Cir.1987). In Greenville, the Court of Appeals of the Fourth Circuit affirmed the lower court’s judgment which awarded compensatory and punitive damages to the City of Greenville for the presence of an asbestos-containing product in the city hall. The defendant, W.R. Grace & Company, argued that it was error for the jury to rely on the National Emission Standards for Hazardous Air Pollutants [“NESHAPS”] because there was no evidence that Greenville actually planned to renovate or demolish the city hall in the future; therefore, there would be no harm to the City of Greenville. The Fourth Circuit stated:
This strikes us as a specious argument. It is obvious that the city hall will not last forever. It will have to be renovated or demolished at some time in the future, and when that day arrives, Greenville will be required to remove the [asbestos-containing product] from the building, if it has not already done so.
Id. at 982. Cf. Beavercreek Local Schools v. Basic, Inc., 71 Ohio App.3d 669, 595 N.E.2d 360, 368 (1991) (“We agree ... that the jury’s failure to award more than the cost of maintaining the asbestos is inexplicable in view of the uncontroverted testimony that Beavercreek [the plaintiff] would be faced with the necessity of removing the asbestos at the end of the life of the buildings[.]”) In the case before us, the trial judge, in its unique role of being able to evaluate the evidence, could have found that the jury’s failure to award any damages was “manifestly inadequate.”
Lastly, the trial judge noted that “it appears to the Court that either the jury was not clearly instructed by the Court, or that the jury totally mis-comprehended the evidence.” We agree with the trial judge. Our reading of the record revealed that there was confusion in the jury instructions as to whether the jury was to determine if the product was located in the building and if so, the amount of damages; or whether the jury was to also determine whether or not the product caused damage.
Indeed, we grant more deference to the trial judge who awards a new trial than we do to a trial judge who denies a new trial because “there is, ordinarily, lack of finality in the action of setting aside a verdict and granting a new trial.” Browning, supra, 126 W.Va. at 203, 27 S.E.2d at 485. Accordingly, based on our discussion above, we hold that it was not an abuse of discretion for the trial judge to vacate the jury verdict and award a new trial.
III.
The appellants raise additional issues for this Court to address in the event that we do not reinstate the jury verdict. Specifically, the appellants raise issues regarding (1) whether a statute of limitations is applicable to the State; (2) whether the trial judge could find as a matter of law that the asbestos-containing products of the appellants are defective and, therefore, direct a verdict on liability against the appellants; (3) whether the trial judge should have disqualified himself from the trial; (4) whether the trial judge erred in striking the defense of assumption of risk; and (5) whether the trial judge erred in determining that appellant W.R. Grace & Co. is responsible for its predecessor’s liabilities.
A.
The first additional issue, which could be dispositive of the case, is whether a statute of limitations runs against the State in an asbestos case. The appellants argue that the appellees’ claim is barred pursuant to W.Va Code, 55-2-12 [1959] which states that a tort claim must be brought “[w]ithin two years next after the right to bring the same shall have accrued[.]” The trial judge rejected this argument and applied the common law doctrine of nullum tempos occurrit regi (“time does not run against the King”) and found that the statute of limitations does not run against the State in spite of the fact that W.Va.Code, 55-2-19 [1923] states: “Every statute of limitation, unless otherwise expressly provided, shall apply to the State.”
W.Va.Code, 2-1-1 [1923] provides, in relevant part: “The common law of England, so far as it is not repugnant to the principles of the constitution of this state, shall continue in force within the same, except in those respects wherein it was ... altered by the Legislature of this state.” Furthermore, in the syllabus of Perry v. Twentieth Street Bank, 157 W.Va. 963, 206 S.E.2d 421 (1974), this Court stated “[b]y virtue of the authority of Article VIII, Section 21 of the Constitution of West Virginia and of Code, 1931, 2-1-1 it is within the province of the Legislature to enact statutes which abrogate the common law.” The legislature had the authority to enact W.Va. Code, 55-2-19 [1923]. Therefore, we conclude that W.Va.Code, 55-2-19 [1923] abrogates the common law doctrine of nullum tempus occurrit regí thereby making statutes of limitations applicable to the State.
Because the trial judge applied the doctrine of nullum tempus occurrit regi against the appellees, the trial judge did not reach the issues of whether the two-year statute of limitations found in W.Va.Code, 55-2-12 [1959] barred the appellees’ claim or whether the discovery rule applies. Therefore, we decline to address these latter two issues on appeal. See syl. pt. 1, Shackleford v. Catlett, 161 W.Va. 568, 244 S.E.2d 327 (1978) (“ ‘In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken.’ Syllabus Point 1, Mowery v. Hitt, 155 W.Va. 103 [, 181 S.E.2d 334] (1971)”).
B.
Second, we address whether the trial judge could find as a matter of law that the asbestos-containing products of the appellants are defective and, therefore, direct a verdict on liability against the appellants. The appellants argue that there was evidence which indicated that the products are not defective. Therefore, the appellants conclude that the issue of whether the asbestos-containing products are defective should have gone to the jury. Furthermore, the appellants contend that liability could not have been directed since the jury had to determine whether the products caused damage. The resolution of this issue is important in determining whether the trial judge may find that the asbestos-containing products are defective as a matter of law and direct liability when this case is remanded for further proceedings, including a new trial.
The record before us is unclear as to how the trial judge came to his determination. It appears the trial judge took judicial notice that asbestos-containing products are defective as a matter of law. If this is the case, we assert that “[w]hile courts are permitted to take judicial notice of certain facts, it is well settled that a trial judge is not permitted to base a finding upon facts which are merely matters of his personal knowledge as distinguished from proof of such facts.” Boggs v. Settle, 150 W.Va. 330, 338, 145 S.E.2d 446, 451 (1965). See also 1 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers, § 2-l(G) (3rd ed. 1994) (“A judge may not take judicial notice of adjudicative facts that are open to reasonable dispute, even if the judge is personally convinced of the correctness of a particular conclusion.”)
Furthermore, the appellants contend that the trial judge applied the wrong standard when he stated in the September 14, 1993 order that the asbestos-containing products are defective as a matter of law because they are inherently dangerous. In Morningstar v. Black & Decker Manufacturing Co., 162 W.Va. 857, 888, 253 S.E.2d 666, 683 (1979), this Court concluded that “in this jurisdiction ... the general test for establishing strict liability in tort is whether the involved product is defective in the sense that it is not reasonably safe for its intended use.” In the present case, it is unclear what standard the trial judge applied to determine when a product is defective.
The trial judge appears to have relied upon his own knowledge when he determined that asbestos-containing products are defective as a matter of law. We emphasize that if the tidal judge makes the same decision on remand with regard to the products being defective as a matter of law, then the trial judge must clearly indicate on the record how he came to that conclusion.
In this respect, a trial judge may take an issue from the jury if there are no questions of fact to be decided by the jury, but the trial judge may not remove a question of fact from the jury. 88 C.J.S. Trial § 208(b) (1955). This Court has stated:
the most fundamental rule of our system of jurisprudence is that questions of fact are to be determined by a jury and questions of law by a court.... [I]t is just as well established in our law that where there is no evidence to support a verdict, or where it is against the plain preponderance of conflicting evidence, or the governing facts are not in dispute so that reasonable minds could draw but one conclusion therefrom, the questions ... are for judicial determination as a matter of law.
Fitzwater v. Spangler, 150 W.Va. 474, 478, 147 S.E.2d 294, 296 (1966) (citing Petros v. Kellas, 146 W.Va. 619, 122 S.E.2d 177 (1961) which held in syllabus point 4: “ ‘When the material facts are undisputed and only one inference may be drawn from them by reasonable minds the questions of negligence and contributory negligence are questions of law for the court.’ Point 3, syllabus, Graham v. Crist, 146 W.Va. 156 [, 118 S.E.2d 640 (1961) ].” citing also Wood v. Shrewsbury, 117 W.Va. 569, 186 S.E. 294 (1936).
Furthermore, our review of the record indicates it is not clear as to whether or not the trial judge directed a verdict on liability, although the order to which we refer previously in this opinion states “[t]he Court DIRECTED LIABILITY as a matter of law[.]” We acknowledge that a trial judge may direct a verdict:
‘Where the evidence given on behalf of the defendant is clearly insufficient to support a verdict for him so that such verdict, if returned by a jury, must be set aside, and the evidence of the plaintiff is clear and convincing, it is the duty of the trial court, when so requested, to direct a verdict for the plaintiff.’ Point 5 Syllabus, Sommerville v. The Pennsylvania Railroad Co., 151 W.Va. 709 [, 155 S.E.2d 865 (1967)].
Syl. pt. 4, Jones, Inc. v. W.A. Wiedebusch Plumbing and Heating Co., 157 W.Va. 257, 201 S.E.2d 248 (1973).
In the case now before us, however, the jury instructions are not clear as to whether liability was directed. At one point, the jury instructions indicate that, although the asbestos-containing products are defective as a matter of law, the jury still must determine whether the products caused damage and, if so, what the amount of damages are. At another point, the jury instructions indicate that if the jury finds that the product is located in the appellants’ buildings, then the jury must award damages. These conflicting instructions need to be resolved.
In Morningstar, supra, this Court explained that in a product liability case, the initial inquiry is whether the product is defective and, if so, did it cause damage. The next inquiry is the amount of monetary damages. Therefore, on remand, if the trial judge directs a verdict on liability, he must clearly explain in the record the reasons for his decision.
C.
Third, we address whether the trial judge erred in refusing to disqualify himself after announcing, prior to the presentation of the appellants’ case, that in-place asbestos-containing products are defective as a matter of law and as a matter of fact. The appellants argue that the trial judge violated Canon 3C of the West Virginia Judicial Code of Ethics which states, in relevant part: “A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned[.]”
Although the appellants raise this issue as an assignment of error, this issue is more appropriately disposed of pursuant to Rule XVII of the West Virginia Trial Court Rules for Trials of Record (Rule XVII outlines the proper procedure for disqualifying a judge). Therefore, we decline to address this issue.
However, we note that our review of the record indicates that there were statements made by the trial judge which may have been intemperate. Although a trial judge need not be muzzled, we caution the trial judge to exercise more restraint in making comments with regard to the merits or lack of merits of a party’s position without proper support. Obviously, impartiality in a judge is of the utmost importance to instill confidence in the judiciary.
D.
Fourth, we address whether the trial judge erred in striking the defense of assumption of risk. At the outset, we note:
The defense of assumption of risk is available against a plaintiff in a product liability case where it is shown that the plaintiff had actual knowledge of the defective or dangerous condition, fully appreciated the risks involved, and continued to use the product. However, the plaintiff is not barred from recovery unless his degree of fault under assumption of risk equals or exceeds the combined fault of the other parties to the accident.
Syl. pt. 3, King v. Kayak Manufacturing Corporation, 182 W.Va. 276, 387 S.E.2d 511 (1989). Additionally, we have stated:
‘“Where [in a trial by jury] there is competent evidence tending to support a pertinent theory in the case, it is the duty' of the trial court to give an instruction presenting such theory when requested to do so. McAllister v. Weirton Hospital Co., 173 W.Va. 75, 81, 312 S.E.2d 738, 744 (1983) (citations omitted).” Syl. pt. 2, Brammer v. Taylor, 175 W.Va. 728, 338 S.E.2d 207 (1985).’ Syllabus Point 2, Ven-tura v. Winegardner, 178 W.Va. 82, 357 S.E.2d 764 (1987).
Syl. pt. 6, King, supra.
The appellants state the evidence indicates that as early as 1946 the State issued a respiratory equipment bulletin designed to protect West Virginia workers from exposure to asbestos and silica. The record discloses the bulletin lists approved respiratory devices to protect against the inhalation of asbestosis. However, this does not in and of itself indicate the State had actual knowledge of a dangerous or defective condition.
The appellants also assert that in 1951 the State adopted regulations regarding threshold limits of exposure to asbestos. However, the appellants do not indicate where in the record it states the appellees had actual knowledge that the asbestos levels in the state buildings were above the threshold limits. Accordingly, we conclude, based upon the above information, the trial judge could determine that the evidence was not sufficient to support an instruction on assumption of risk. We find no error in the trial judge’s ruling.
E.
Finally, we address whether the trial judge erred in refusing to grant a directed verdict or to charge the jury on the issue of successor liability. W.R. Grace & Co. (hereinafter “Grace”) is the only appellant raising this issue.
In syllabus points 2 and 3 of Davis v. Celotex Corporation, 187 W.Va. 566, 420 S.E.2d 557 (1992) this Court held:
2. At common law, the purchaser of all the assets of a corporation was not liable for the debts or liabilities of the corporation purchased. This rule has since been tempered by a number of exceptions and statutory provisions.
3. A successor corporation can be hable for the debts and obligations of a predecessor corporation if there was an express or implied assumption of liability, if the transaction was fraudulent, or if some element of the transaction was not made in good faith. Successor liability will also attach in a consolidation or merger under W.Va. Code, 31-l-37(a)(5) (1974). Finally, such liability will also result where the sueees-sor corporation is a mere continuation or reincarnation of its predecessor.
With this in mind, we address Grace’s contentions.
Grace purchased certain assets of the Zonolite Company on April 10, 1963, pursuant to an Agreement and Plan of Reorganization. Grace contends that under the agreement it assumed only the debts and liabilities of Zonolite which existed at the closing of the purchase of Zonolite. Therefore, it is not responsible for claims caused by asbestos-containing materials manufactured and sold by Zonolite prior to the closing of the purchase of Zonolite.
However, as we stated above, a company may be liable if it impliedly assumes liability or is a mere continuation or reincarnation of its predecessor. The appellees assert that Grace acquired all of Zonolite’s assets and continued to manufacture the same products as Zonolite. Therefore, the trial judge could conclude that Grace impliedly assumed responsibility or that it is a mere continuation or reincarnation of its predecessor. Accordingly, we cannot conclude that the trial judge erred on this issue.
IV.
Accordingly, we affirm the September 14, 1993 order of the Circuit Court of Mononga-lia County to the extent the trial judge vacated the jury verdict and awarded a new trial. The case will be remanded and further proceedings will be held in accordance with the principles set forth in this opinion,
Affirmed, in part, reversed, in part, and remanded.
BROTHERTON, C.J., and MILLER, Retired J., did not participate.
CLECKLEY, J., concurs and files a concurring opinion.
. The Court in Freshwater described a type I case as follows:
The easiest type of inadequate jury award is where the plaintiff would have been entitled to a directed verdict on liability as a matter of law, and the damages are inadequate even when viewed most strongly in favor of the defendant. In this type of case an appellate court need not agonize about reversing and remanding for a new trial on the issue of damages alone and that is the proper course.
Freshwater, supra, at 160, 233 S.E.2d at 315. Additionally, although it does not affect a type I analysis, Freshwater was overruled, in part, in Linville v. Moss, 189 W.Va. 570, 433 S.E.2d 281 (1993).
. Rule 59 of the Federal Civil Judicial Procedure and Rules states, in relevant part: "A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States[.]”
Although there are language differences between W.Va.R.Civ.P. 59 and Rule 59 of the Federal Civil Judicial Procedure and Rules, the purpose behind the two rules is substantially the same. Therefore, we will examine explanations regarding the federal counterpart to W.Va.RCiv.P. 59 in order to aid our understanding of Rule 59.
. In McNeely, this Court relied on syllabus point 3 from Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963). In Walker, this Court was required to determine whether the trial court’s decision not to grant a new trial was proper. The analysis in Walker is different from the analysis which should have been used in McNeely in order to determine whether this Court could reverse the trial court's order granting a new trial. We note that McNeely, supra, is a per curiam opinion. In syllabus point 2 of Graf v. West Virginia University, 189 W.Va. 214, 429 S.E.2d 496 (1992) we held: “A per curiam opinion that appears to deviate from generally accepted rules of law is not binding on the circuit courts, and should be relied upon only with great caution.”
. A directed verdict is a final judgment. Therefore, our standard of review is different for a directed verdict than for an order awarding a new trial:
‘ " ‘Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence. Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85 [, 163 S.E. 767 (1932)].'” Point 1, Syllabus, Jenkins v. Chatterton, 143 W.Va. 250 [, 100 S.E.2d 808] (1957).’ Syllabus Point 1, Jividen v. Legg, 161 W.Va. 769, 245 S.E.2d 835 (1978).
Syl. pt. 1, Cale v. Napter, 186 W.Va. 244, 412 S.E.2d 242 (1991).
Similarly, a judgment notwithstanding a verdict is a final judgment which, therefore, warrants a different standard of review than that for a new trial:
In reviewing a trial court's ruling on a motion for a judgment notwithstanding the verdict, it is not the task of the appellate court reviewing facts to determine how it would have ruled on the evidence presented. Its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, in ruling on a motion for a judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the nonmoving party. If on review, the evidence is shown to be legally insufficient to sustain the verdict, it is the obligation of this Court to reverse the circuit court and to order judgment for the appellant.
Syl. pt. 1, Mildred L.M. v. John O.F., 192 W.Va. 345, 452 S.E.2d 436 (1994).
. The appellants correctly assert that this Court has adopted the discovery rule in product liability claims for personal injuries. See Hickman v. Grover, 178 W.Va. 249, 252, 358 S.E.2d 810, 813 (1987).
. Currently, the comparable section can be found in Canon 3E(1) of the West Virginia Code of Judicial Conduct. The West Virginia Code of Judicial Conduct became effective on January 1, 1993.
. Similarly, other courts have found that Grace is responsible for the obligations of Zonolite. See Harashe v. Flintkote Co., 848 S.W.2d 506, 509 (Mo.Ct.App.1993) (the court held that "[w]hile the [Grace-Zonolite Agreement] was delineated as a reorganization through a purchase of assets it contained all the elements of a de facto merger.”) and T.H.S. Northstar Assocs. v. W.R. Grace & Co.-Conn., 840 F.Supp. 676, 679 (D.Minn. 1993) (The court found that the elements of a de facto merger were present since Grace assumed the obligations of Zonolite, the Zonolite shareholders became Grace stockholders, and Grace paid for Zonolite assets solely with shares of its own stock rather than with cash.) But see East Prairie R-2 School District v. U.S. Gypsum Co., 813 F.Supp. 1396 (E.D.Mo.1993) (Grace held not to be responsible for its predecessor's (Zonolite) liabilities.)
. The appellants also raised the following issues: whether a new trial should be granted with respect to buildings for which product identification was not conceded and whether a new trial should be granted on punitive damages. However, because of our holding in part II, supra, there is no need to address these issues. | [
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JOHNSON, PRESIDENT :
On the 4th day of June, 1885, John B. Henderson was in the Circuit Court of Upshur county indicted for forgery. On the 17th day of February, 1886, the prisoner demurred to the indictment, which demurrer was overruled; and thereupon the prisoner pleaded not guilty. On the 11th day of January, 1886, the trial of the prisoner before a jury commenced; and on the 23d day of the same month the jury rendered a verdict of “ guilty as charged in the indictment.” Whereupon the prisoner moved the court to set aside the verdict and grant him a new trial on the ground of erroneous rulings by the court during the trial as set forth in twenty-four bills of exceptions, which motion the court overruled; and the defendant excepted. The court then sentenced the prisoner to be confined in the penitentiary of the State for the term of two years.
To this judgment the prisoner obtained a writ of error.
Neither the evidence nor the facts are certified. The errors, of which the prisoner complains, are saved in his several bills of exceptions, which will be considered se ■ riatim.
The first error assigned is the overruling of the demurrer to the indictment. The indictment is good. The same particularity in the framing of indictments, that was required at common-law, is not now required. Sec. 6 of chap. 158 of the Code provides, that “ in a prosecution for forgery or uttering or attempting to employ as true any forged instru ment or other thing, and in a prosecution for any of the of-fences mentioned in chapter one hundred and fifty-six, it shall not'be necessary to set forth any copy or fac-simile of such instrument or other thing; but it shall be sufficient to describe the same in such manner, as would sustain an indictment for stealing such instrument, or other thing, supposing it to be the subject of larceny.” The indictment here answers all the requirements of this statute. It charges— “ that John B. Henderson, to-wit, on the 3d day of February in the year 1835, in said county feloniously did utter and attempt to employ as true a certain forged writing purporting to be a receipt purporting to be subscribed by one Ebenezer Leonard, which said writing is of the following purport and effect, to-wit: — '‘John B. Henderson this day paid me seven hundred and sixty-two dollars and twenty cents, which is payment in full of a note given by said Henderson to me on the 23d day of June, 1869, calling for seven hundred and forty dollars and payable one day after its date, I not being able now to produce said note. — Witness my hand this 24th day of December, .1869. — Ebenezer Leonard’ — with intent to defraud and with prejudice of the right of said Eben-ezer Leonard, he, the said John B. Henderson, at the time he so uttered and employed as true said forged writing purporting to be a receipt, &c., well knowing the same to be. forged,” &c. This would certainly be a sufficient description of the receipt, if the indictment had been for the larceny thereof. (State v. Jackson, 26 W. Va. 250; State v. Hurst, 11 W. Va., 54; State v. Poindexter, 23 W. Va. 811). It is objected that the indictment is bad, because there is no averment therein, that the accused was indebted to Leonard. Such an averment never was under any rule of law necessary in an indictment for forgery. The court properly overruled the demurrer.
The first bill of exceptions is to the refusal of the court to quash the indictment, on the ground that Alexander Higgs, one of the grand-jurors, who found the indictment, was not a freeholder, at the time the indictment was found. The prisoner in support of his motion offered to introduce evidence to establish that fact; but the court overruled the mo tion and refused to permit the evidence to be offered. This was not error. The 12th section of chapter 138 of the Acts of 1882 provides, that “No presentment or indictment shall be quashed or abated on account of the incompetency or disqualification of any one or more of the grand-jurors, who found the same.” But it is insisted by 'counsel for plaintiff in error, that sections 2,3 and 4 of the same chapter require, that grand-jurors shall be freeholders, and that section 12 does not apply, as it would be in conflict with the said previous sections and destroy their effect. Section two, which provides, that the list, from which the grand-jurors shall be drawn, shall contain only freeholders, is clearly modified by section 12, which says in effect, that, if one drawn on the grand-jury is not a freeholder, that fact shall not vitiate an indictment found by him. This is a wise provision, because it would be very detrimental to the public interests, if perhaps a hundred indictments should be liable to be quashed- or abated, because one, who was not a freeholder, happened to be placed on the list and was drawn as a grand-juror.
The court did not err to the prejudice of the prisoner in examining on oath the juror, Crawley, touching his citizenship. It seems from the exception, that, after the jury was sworn, the State moved the court to examine Crawley on oath to ascertain, whether he was a citizen of the State, which the court did and being satisfied of his citizenship pei% mitted him to remain on the jury. This could not possibly have prejudiced the prisoner. What would have been the effect, if the court had been satisfied, that he was not a citizen of the State, and had required him to stand aside and had filled his place with another, is not raised and will not be decided.
The third bill of exceptions is to the admission of a copy of the deed from J. B. Henderson to Ebenezer Leonard for a tract of one hundred and seventy-three acres of land. This deed seems to be the one described in the bill of J. B. Henderson, which is set out in exception No. 11 and will be considered, when we discuss that bill of exceptions.
The fourth bill of exceptions is to the admissiomof the note described in the receipt set forth'in the indictment. This exception is not insisted on here; and the evidence was manifestly proper.
The fifth bill of exceptions refers to the deed set out in bill No. 3 and the note in bill No. 4 and states, that the witness, Ebenezer Leonard, was asked the question — •“ How was that money to be applied?” — (meaning the money named in the note ) ; and against the objection of the prisoner the witness answered — “ It was to be applied on the land specified in the deed.” The sixth bill of exceptions sets forth the same facts, question and answer, and the further question — ■“ How was the money called for in that note to be applied ?” — to which against objection he answered — “ It was applied as a payment on the land,”' — {the land mentioned in said deed). The counsel for the plaintiff in error insists, that these questions and answers ought not to have been permitted, because they tended to contradict a writing, and because they were leading. They certainly did not tend to contradict the note. Ruckman v. Lightner, 24 Gratt. 19, is relied on. That case has not the slightest application. There the note was signed by Ruckman and Glendy; and they offered to prove, that they were only agents for the Confederate government. The court held, that parol evidence was not admissible to prove, that Ruckman was acting as the agent of the Confederate States’ government, and that the note was given for the price of cattle purchased for that government. But it is farther objected, that the questions were leading. A question is not open to the objection of being leading, unless it in some manner indicates to the witness the answer desired. (Remmerer v. Edelman, 23 Pa. St. 143; Spear v. Richardson, 37 N. H. 23; Floyd v. State, 30 Ala. 511; Floyd v. Buford, 17 Tex. 152). These questions do not indicate the answers sought and are unobjectionable.
The seventh bill of exceptions sets out the facts, questions and answers, as they appear in the fifth and sixth bills, and then this further question asked of the same witness — “State whether or not a settlement was made between you and John B. Henderson, the prisoner,in which the money on this note (meaning said note) was applied on the purchase-money of the land (meaning said land). If so, when and where?”— which question against the objection of the prisoner the witness answered- — “It was a settlement we made at Walter Philips’s store and closed same day at M. A. Darnall’s on the 7th day of September, 1872. Dr. J. J. Morgan made the calculation.” It is objected, that this was irrelevant and prejudicial to the plaintiff in error, and that the question was leading.
It was not irrelevant nor prejudical ■; for, it is evident, it tends to show, that Henderson had settled for the very note, which, he afterwards tries to show, that he paid. It is one of the steps tending to show, that he had uttered the forged receipt, when he knew it was forged. The question certainly was not leading for the reasons already stated. A question to a witness in the words — “Whether or not” — is not ordinarily objectionable as leading. It may be so, if it be otherwise in such terms, as from the nature of the question in connection with its subject-matter suggest to the witness the answer desired. (Bartlett v. Hoyt, 33 N. H. 151; Leman's Case, 6 Gratt. 684.) In the Virginia case the questions were — “State whether or not you examined the horse-tracks towards Origan’s” — “State whether or not you had any difficulty in following the tracks.” In the New Hampshire case the question proposed was — “State whether or not the hay, which you saw Demarett’s team hauling to the Denham depot, was a part of the lot, you have described as sent by the plaintiff to your brother, N. Nute, in Boston.” The court said, this was not a leading question, and further : — -“It would be difficult perhaps to propose the question in terms better adapted to avoid leading the mind of the witness to the answer, without making it so general, as to fail to direct his attention to the particular, in relation to which his information was sought.”
The eighth exception is to the admission of the receipt, which was alleged to have been forged, and the purport of which is set o.ut in the indictment. It is insisted, that there is a variance between the receipt and that described in the indictment. The only particulars, in which it can be pretended, that there is a variance, are the following : The receipt is dated — “this 24th of December, 1869” — while the description in the indictment is — “this 24th December, 1869”— and the description in the indictment omits entirely these words, which appear in the receipt — “Witness—Susan M. Armstrong.” There is no material variance in the date, even if it were required, as it is not, to set out the receipt literally. (Burress's Case, 27 Gratt. 984). In Perkins's Case., 7 Gratt. 654, Lomax, J., said : “The court is of opinion, that, as this prosecution was only for forging the writing, which purported to be a negotiable note, there was no necessity, that the indictment should set out the endorsements or any other matter upon the same paper constituting no part of the note itself and not entering into the essential description of that instrument. It is enough to set out in the indictment the note itself without any other extrinsic marks or-writings on the same paper. (Commonwealth v. Ward, 2 Mass. 397; Simmons v. The State, 7 Ham. (Ohio) Pt. 1, p. 116). When the paper with these unessential marks and writings is offered in evidence for the purpose of sustaining the prosecution for the forgery of the note, there will be no valid objection on the ground of variance between the proofs and the charges laid in the indictment.”
In Burress's Case, 27 Gratt. 934, it appeared that the indictment was for the forgery of an order; and on the order was written : “Richmond, March 5th, 1875, received of T. A. Parker & Co. forty-seven 23-100 dollars in full of this order- — Thomas Moore. ” — Moncure, P., for the court said: “Certainly the receipt at the foot of the said paper, and the absence of such receipt at the foot of said order constitute no variance. The receipt is not charged to be forged. In fact it is a genuine instrument.”
In Poindexter's Case, 23 W. Va. 811, this Court said: “This couut of the indictment did not jn'ofess to set out the tenor, which imports a verbatim copy of the check, but only its purport and effect, which means the legal effect of the instrument as a whole.”
The statute, which we have before quoted, declares : “It shall not be necessary to set forth any copy or fac-simile of such instrument or other thing ; but it shall be sufficient to describe the same in such manner, as would sustain an indictment for stealing such instrument or other thing, supposing it to be the subject of larceny.” The indictment does not profese to giv§ a copy of tjie receipt but describes it as “of the following purport or effect.” Now it does seem to us, that, if it were the subject of larceny, it is sufficiently described. (Even where by the statute of limitations there is a difference in the time when a note witnessed, and one that is not, is barred, it is not necessary to notice in the declaration on such note, that the note was witnessed.) After plea of the statute of limitations the fact, that there was a witness to the note, can be set up by way of replication. (Smith v. Dunham, 8 Pick. 246.) The variance was not material; and the court did not err in admitting the receipt.
Bills of exceptions Nos. 9,10,11,12 and 13 are to the admission in evidence of parts of the record in a chancery suit of J. B. Henderson against Ebenezer Leonard and others. Bill No. 9 is to the admission of the bill in said cause — No. 10 to the answer of Leonard and order filing the same — No. 11 sets out the bill, answer of Leonard, the general replication to the answer, the special replication of Henderson to the answer, to the introduction of which special replication the prisoner excepted. No. 12 is to the admission of the order of reference in said cause. No. 13 is to the deposition of Susan M. Armstrong taken in said cause. This bill among other things alleges the sale of a tract of land by Henderson to Leonard and the execution by Leonard of certain purchase-money-notes ; that on the 1st day of April, 1869, he conveyed to Leonard a tract of 173 acres of land retaining a vendor’s lien, which deed purports to be filed marked Exhibit “0.” He says, for this sale no bonds or notes were delivered to him by Leonard. He prays that a survey of the two tracts of land may be had in order that their true boundaries may be ascertained, and that the metes and bounds of said land may be corrected, and that the land may be sold to pay the purchase-money. The answer of Leonard among other things after averring the payment of large sums of the purchase-money says : “That on the 7th day of September, 1873, he held against the plaintiff the following. notes, bonds and claims other than those herein mentioned, to-wit: A note executed by plaintiff to defendant dated the 2Sd day of June, 1869, calling for $740.00 payable one day after its date,” &c. He then sets up a settlement made between them, in which, he says, it was agreed, that, his claims against Henderson amounting to $3,036.03 should be applied as a payment on the land; and on the day, the deed dated April 1st, 1872, was acknowledged, to wit, on the 7th day of September, 1872, it was so ajrplied. lie admits, that $200.00 only of the purchase-money remains due, and states, that he has been ready and willing to pay that, whenever it should be ascertained, to whom it ought to be paid, and tenders the $200.00 with his answer. The plaintiff, Henderson, was permitted to file a special replication to the answer, in which he denies, that he agreed, that said money should be applied on the land, and denies, that it was so applied. He also in said special replication says, that “the cause of action on the note for $740.00 executed by the plaintiff to said Ebenezer Leonard dated June 3,1869, and due one day after date in the answer mentioned accrued more than ten years before the institution of this suit; that the same is barred by the statute of limitations, and the plaintiff relies on said statute.”
The case was referred to a commissioner on the 13th day of June, 1882, among other things to ascertain and report; “ What balance of purchase-money remains due from said Leonard to the plaintiff after applying payments and sets-off, to which he is legally entitled.” On the 11th day of January, 1885, a notice of Henderson to Leonard to take the' deposition of Susan M. Armstrong was served. Pursuant to-said notice her deposition was taken on the 26th day of January, 1885, before Phil. A. Lorentz, a justice, who certified the same. The receipt described in the indictment with the words thereon — ■“ Witness — Susan M-. Armstrong,” was shown to the witness ; and she was asked to examine it and state, whether she witnessed it or not. She answered: — “I have examined said writing and recognize my signature as- a witness thereto and remember of seeing the receipt drawn and seeing Ebenezer Leonard sign his name to the same.” The next question was : — “ At whose instance did you witness said wilting ?” She answered: — “ I don’t remember, at whose instance I witnessed the said writing; but I remember Mr. Ebenezer Leonard and my brother, John B. Henderson, were both present, when I witnessed said writing; and I here file said writing as part of my deposition marked Exhibit S.”— It was shown at the trial of Henderson on the indictment by the evidence of said justice Lorentz, who took the deposition, that Henderson Avas not present at the taking of the deposition ; hut the questions in said deposition were found by the justice at his house, on the day the same Avas taken, having been left there. The replication further shows, that Susan M. Armstrong, a witness for the prisoner on the trial, stated in her evidence, that Henderson and his counsel had been there the day before and left said questions to be pro-imrnded to her.
It must be remembered, that the indictment is not for forgery but for “ feloniously uttering and attempting to employ as true ” the forged receipt knowing it to be forged. Of course in the trial of the prisoner the State Avould have to prove beyond a reasonable doubt, that the receipt Aras a forgery. It must be supposed, that that was done, as neither the facts nor the evidence is certified. The State Avas also bound to prove beyond a reasonable doubt, that the prisoner knowing, that the said receipt was forged “ feloni-ously uttered and attempted to employ it as true.” The record objected to was evidence tending to prove, that Henderson did utter and attempt to employ as true said receipt. This is shown by the deposition of Susan Armstrong taken in the chancery suit. She swears, that the receipt was genuine in answer to questions written by the prisoner. He had the receipt filed with her deposition and returned thereAvith and filed in the chancery cause. If the State could not use this record, it might entirely fail to elicit the truth. W e can see no objection to the evidence. It Avas an act of the defendant deliberately done, which tends to prove the very fact in issue. Every thing said or done by the accused in the prosecution of said attempt to utter the receipt and employ it as true with the knowledge of its forgery'for the purpose of obtaining credit for the money mentioned in the receipt was “an attempt to employ as true” such writing within the meaning of the statute. (Cahoon’s Case, 20 Gratt. 794). In Sands’s Case, 20 Gratt. 800, there was a forgery of the name of Haunstein, a foreigner, to a bond payable to one Thompson. Suit Avas brought on the bond after Haunstein’s death, and judgment Avas recovered. A chancery suit Avas instituted to have the money paid out of Haunstein’s estate, and the court held, that both the record in the law court and that in the chancery court were admissible against the prisoner charged with forgery and with uttering and attempting to employ as true the forged bond. The court held the records admissible to show the uttering of the forged papers and the complicity of the prisoner in the uttering.
The court below did not err in admitting the several portions of the record excepted to, nor in admitting the deed mentioned in the Bill of Exceptions No. 3. It was referred to in Henderson’s bill and was so connected with the charge, as to be relevant and proper evidence.
Bills of Exceptions Nos. 14,15,16 and 17 are to the permission given by the court to witnesses J. J. Morgan, Levi Leonard, Ashley Gould, and Wealthy Leonard respectively to write the letter “ L ” in the presence of the jury, as they, the witnesses, thought Ebenezer Leonard wrote it, and show it to the jury, and for the jury to compare the letter written by each of these witnesses with the “ L ” in Leonard’s name signed to the receipt alleged to be a forgery. The objection urged to this is, that it is a comparison of handwriting by the jury, which, it is alleged, is not allowable, and the following authorities are cited: Rowt v. Kile, 1 Leigh 216; Burress's Case, 27 Gratt. 946; Clay v. Alderson, 10 W. Va. 50. It is true, as these cases hold, that it is not allowable to lay other proved but not admitted specimens of the party’s handwriting before the jury for the purpose of permitting them to judge by a comparison thereof with the signature in question, whether the said signature is not genuine. But here no such thing was permitted. The jury was not asked to compare different signatures of Leonai’d with his name signed to the alleged forged receipt. The witnesses were only asked to write an L” as they thought Leonard wrote it, so that the jury could the better understand the testimony. If a jury do not have a clear idea of the location of aplace, where an act is alleged to have been done, no one doubts the right of a party to have a witness describe the place and by a word-painting of it and its surroundings make its location clear to the minds of the jury. What objection then can there be to the permitting of the witness to make in the presence of the jury a diagram of the place to enable the ,j ury the better to understand the witness ? There can then be no valid objection to the permitting of the witnesses in their attempt to describe how Ebenezer Leonard wrote the letter “ L ” to illustrate their meaning by writing the letter themselves, so that the jury could see whether or not it was in fact different from the alleged simulated “ L.” ,
The bills of exceptions Nos. 18 and 19 were to the refusal of the court on cross-examination to- allow the following question to be propounded to and answered by the witnesses, Simpson and Levi Leonard: — “Are you indebted to the prosecuting witness, Ebenezer Leonard?” — Mr. Wharton (Grim. Ev. § 477) says: — “A witness may be compelled to answer questions concerning his relationship to the prosecution or defence, his interest in the suit, his capacity of discernment and expression, his motives and his prejudices. He may thus be required to explain whatever would show bias on his part or incapacitate him to testify correctly.” — In 2 Hale E. 0. 276-7 it is said : — “Exceptions to the credit of the witness do not at all disable him from being sworn but yet may blemish the creditability of his testimony; and in such case, the witness is to be allowed to testify, but the credit of his testimony is left to .the jury, who are judges of the fact and likewise of the probability or improbability, credibility or incredibility of the witness and his testimony; and these exceptions are of that great variety and multiplicity, that they can not easily be reduced under rules or instances.”
It is well settled, that on cross-examination a witness may be examined as to his animus towards the party, against whom he is giving testimony, and as to any statements made by him indicating feelings of hostility to the party, against whom he is called; and, if he denies making any such statements, they may be proved by other witnesses. (Newton v. Harris, 2 Seld. 345; Drew v. Wood, 6 Foster 363; Martin v. Farnham, 5 Foster 195; Atwood v. Welton, 7 Conn. 66; Long v. Lamkin, 9 Cush. 361; Harris v. Tippett, 2 Campb. 537; Day v. Stickner, 14 Allen 255; Bixby v. The State, 15 Ark. 395; Fincher v. The State, 58 Ala. 215; Blessing v. Hope, 8 Md. 31.) If there is peculiar friendship for the party, for whom he is called, that may be shown on cross-examina tion. (Drew v. Wood, 6 Foster 363). It has been held, that a witness on cross-examination may be asked: — “Were you not then under the influence of ardent spirits?” — (Pool v. Pool, 33 Ala. 145). It has been held, that the witness maybe asked, whether or not he has made a bet, that the party ealling him, would recover. (Kellogg v. Nelson, 5 Wis. 125). In that casp Whiton, O. J., said: — “On the cross-examination of a witness anything, which shows his friendship pr enmity to either of the parties, is commonly a proper subject of inquiry. So also is anything, which tends to show, that in the circumstances, in which he is placed, he has a strong temptation to swear falsely. It is to be remembered, that the jury are the sole judges of the credibility of the witness, and whatever tends to assist them to form a judgment upon this subject should not be withheld from them. * '* * The right of counsel to cross-examine a witness upon these subjects must of course be restrained within reasonable limits and must commonly be exercised subject to the discretion of the judge, before whom the case is tried; but, where a question is propounded with a view to show, that the witness has conducted himself very improperly in relation to the suit, in the trial of which he is called to testify, we think, the ruling of the judge, by which inquiry into the subject is prevented, is so erroneous, as to justify a reversal of the judgment.
In Hutchinson v. Wheeler, 35 Vt. 330, it was held, that, where a witness on the part of the plaintiff 'was asked on cross-examination, if the plaintiff had not assisted him in a lawsuit, which the witness had had with the defendant, it was not only held competent, but also that the defendant could contradict the answer of the witness, that he had not had such assistance from the plaintiff.
Where in the trial of several defendants on an indictment for riot it appeared, that a secret society had been organized for the purpose of repressing the class or sect, to which the de fendant belonged, it was held to be competent to require a witness, who had been called and testified on the part of the prosecution, to answer on his cross-examination, whether he was a member of such secret society. (The People v. Christie, 2 Park. Cr. Rep. 579.)
In general terms in Ray v. Bell, 24 Ill. 444, it was held, that great latitude is permitted on the .cross-examination of a witness, and- questions calculated to elicit answers, which will be likely to affect the standing of the witness, should be allowed. The question in that case was as to what the witness had sworn on a former trial.
It of course is competent to show on cross-examination, that the witness is interested in the result of the suit. (- v. Bonnell, 33 Wis. 180.)
In Winston v. Cox, 38 Ala. 268, it was held, that in cross-examining a witness for the purpose of testing his credibility it is permissible to investigate his situation in reference to the subject-matter o'f the suit, his relations towards the parties, his interests, prejudice and motives ; and if it appears, that his testimony tends to relievehim of the imputation of negligence in connection with the subject-matter of the suit .and was in conflict with the testimony of other witnesses, the appellate court will not reverse on account of the latitude allowed in the cross-examination, unless the record plainly shows, that an improper indulgence was given. To same effect is Stondenmeier v. Williamson, 29 Ala. 558.
In Newcomb v. The State, 37 Miss. 383, it was held, that it is a general rule, that anything legitimately tending to show, that a witness is under undue feeling or bias for or against a party to the issue, may be shown to the jury to enable them properly to weigh his testimony; and that this rule applies to statements made and acts done by the witness in relation to the subject-matter of the issue, and which shows bis bias or feeling towards a person involved in the transaction, which gave rise to the issue; and hence in a trial for murder a witness for the defendant may be asked by the State, if she did not say to a person designated and at a time men-tionedthat, if the accused did not Mil the deceased, she would not own him. for her son.
It was said by the Supreme Court of California : “ We are inclined to agree, that courts are apt to take a too narrow view of the rights of the examiner in such cases and to give too extended a scope to the rule, that a cross-examination is to be confined to the subject-matter of the evidence in chief. Undoubtedly the cross-examination can not go beyond the matter ; but it ought to be allowed a very free range within it. In order to do this the witness may be sifted as to every fact touching the matter, as to which he testifies, so that his temper, leanings, relations to the parties and the cause, his, intelligence, the accuracy of his memory, his disposition to tell the truth, his means of knowledge, his general and particular acquaintance with the subject may be fully tested. Much must be left to the discretion of the counsel on this, subject.” (Jackson v. Feather River Water Co., 14 Cal. 24; Harper v. Lamping, 33 Cal. 648).
We have made quite an extensive review of the authorities on this subject and have discovered upon what Mr. Wharton founded his text; yet we have"failed to find a single adjudicated case, in which it has been held, that, even where a witness in a civil case has been examined, the question has been asked on cross-examination, whether the wit-, ness was indebted to the person calling him. There might be a case, in which such a question under the general rule would be proper. If an action were brought against a per-: son to recover a large sum of money on a note or bond, and the defendant pleaded non est factum, and a witness was called for the defendant, to whom the defendant owed a large sum of money, the collection of which might be very doubtful, unless the plea was sustained, we do not say, it would not be proper in such a case to permit the witness to be asked on cross-examination, whether the defendant did not owe him a large sum of money, which he would be in danger of losing, if the plaintiff recovered. But even in a case like that, I cannot see, how the witness would be liable to bias in the defendant’s favor because he owed the defendant, nor what good purpose would be promoted by asking the witness on cross-examination, if he owed the defendant. If it would be proper in such a case, could it be extended to a criminal prosecution, and he be asked, if he owed another witness, to-wit, the prosecuting witness. If such a question were proper, and the wfitness should answer, that he was indebted to him, then of course it would be proper for the other party to ask him, how much he owed, and whether he had the means of immediate payment, &c., so as to show, that his embarrassment from the debt could have no effect on the testimony he might give. It seems to me, that such evi- deuce would have entirely too remote a bearing upon the issue; and, if the rule should be extended so far, it would subserve no good purpose and would only needlessly pro- ■ long criminal trials.
In this case Ebenezer Leonard can not with any propriety be called the prosecuting witness. For aught that appears in the bill of exceptions, Leonard was entirely indifferent as to the result of the prosecution. For aught that appears in these two bills of exceptions, it may have been the desire of Leonard, that the defendant should be acquitted. We can not look to any other bill of exceptions to aid us in deciding the question raised in these two, as no others are referred to therein. Leonard was not the prosecutor and in a felony-case could not be.- He was not responsible for costs; and the conviction of Henderson could not aid him in his civil .suit, if he had one. He may have received all the satisfaction in such suit, that he desired. In certain misdemeanor cases the party complaining may be required to enter himself as prosecutor. The Code, sec. 2, chap. 158, provides: “In a prosecution for a misdemeanor the name of the prosecutor, if there be one, and the county of his residence shall be written at the foot of the in-eseiitment or indictment, when it is made or found ; and for good cause the court may require a prosecutor to give security for the costs, and, if he fails to do so, dismiss the prosecution at his costs.”
There can be no requirement for a prosecutor or any security for costs in a felony-case. Therefore Leonard stands in this case like any other witness. He is not a party to the prosecution and has no pecuniary interest in it; and from the facts disclosed in the two bills of exceptions we can see no propriety whatever in permitting him to be asked, whether or not he was indebted to another witness in the case. In the light of the authorities the words of Mr. Wharton (Grim. Ev., §477): — “A' witness may be compelled to answer questions concerning his relationship to the prosecution or the defence” — must be understood to mean not the prosecuting witness but the State, which is always the party prosecuting a felony-case.
The general rule evolved from the cases, which we have cited, is applicable to bias &c. towards one of the parties to a suit. In a felony-case the State is tbe plaintiff, and the accused is the defendant; and all the interest, bias, &c., is in favor of one or the other. It might be in a prosecution-for a felony, that the prosecuting witness is the most unwilling witness called. It sometimes happens, that the accused is on trial for forging the name of his lather, who has been forced to appear before a grand-jury to give evidence against him and tiren before the petit-jury to testify against him there, and has all the feelings and bias, which can exist in a father’s heart, in favor of his son. He is in no sense a prosecutor. Tire general rule, as we have seen, does not apply to the witnesses in a cause, who are not parties to the suit. One exception to this occurs to me, there may be others : — Where one of the witnesses is being impeached for bad character, and thus a sort of side-issue is made, the witnesses may be asked on cross-examination as to their feelings, bias, &c., for or against the witness, whose character is the subject of inquiry. If such a case exists, it must appear in the bill off exceptions, before we would inquire, whether the general rule applied to the case. Such a'case does not appear in these two bills of exceptions. The court did not err in excluding-the question.
Bill of exceptions No. 20 is to the following-question asked witness Vincent: — “On or before the 24th day of December,. 1869, what was John B. Henderson’s pecuniary condition?” —and to the following answer by Vincent: — “In 1868 he” (meaning John B. Henderson) “owed me some money, that he said he could not pay me; but in March he paid me a little. He told me in 1869, he had no money.” — December 24, 1869, is the date of the alleged forged receipt. In Chahoon's Case, 20 Gratt. 733, and in Sands's Case, Id. 800, it was held on the trial for the forgery of a bond of one, who was then dead, that it was competent to prove, that he, whose name was alleged to have been forged to the bond, was prompt in the payment of his debts, and that he owned large property real and personal and was doing a good business. For the same reasons it was competent in this case before us to prove, that he, in whose favor the alleged forged receipt was drawn showing the payment by him of a large sum of money, was at. the date thereof in such embarrassed circumstances,, that it is improbable, he could have paid so large a sum. The evidence was competent and was properly allowed to go to the jury to be by them weighed, for what it was worth, with the other evidence in the case.
Bill of exceptions No. 21 was to the evidence of Henry J. Heffner admitted against objection. The question propounded was : — “State, whether, during the time you have been acquainted with the handwriting of Ebenezer Leonard, it has always been the same, or whether there has been a change in it.” The reply was : — “I say, he has always written the same hand. It has always been the same kind of a hand.” — The circumstances, in which this evidence was admitted, are not set forth in the bill of exceptions. It may be, that evidence had been introduced on behalf of the prisoner tending to prove that the handwriting of Leonard had changed. If so, there can be no doubt of the propriety of the evidence excepted to in this bill of exceptions. Nothing in the record shows, that the prisoner was or could have been prejudiced by its admission.
Bill of exceptions No. 22 was to the refusal of the court to admit the evidence of John L. Hurst. The prisoner proposed to prove by Hurst, that some time in the fall of 1885 the witness was in the office of A. M. Poundstone, prosecuting attorney of Upshur county, and in the presence of said Poundstone and Ebenezer Leonard, the prosecuting witness, was shown the alleged forged receipt and another paper-writing with said Leonard’s signature thereto, which said Leonard then and there admitted was his signature ; and he, the witness, was asked then and there to compare the two signatures, which he did, and they were almost exactly alike, so nearly alike, that one could not be distinguished from the other. — The proposed evidence was clearly incompetent. We have seen, that the same could not have been made by the jury. Certainly a witness could not be permitted to testify, that he had at another time made the comparison, and to detail such comparison to the jury.
Bill of exceptions No. 23 was to the evidence of Jonathan Heffner as to the reputation of John B. Henderson for honesty. The bill shows, that the prisoner had introduced evidence to show, that- his reputation for honesty was good; and the following question was propounded to Heffner: — ■ “Are you acquainted with the general reputation for honesty of John B. Henderson among his neighbors and acquaintances ?” — To this question the prisoner objected ; and the court overruled his objection. A controversy then arose between the counsel for the State and the counsel for the prisoner as to the definition of the phrase “neighbors and acquaintances and the counsel asked the court to define the same. Thereupon the court defined the phrase as follows : — “Neighborhood means the neighborhood, in which the party resides, which includes where he moves and circulates and transacts his business, and attends church, stores, mills and mixes generally with the people in the usual'calls of life, and is best knoivn, not extending to any great number of miles, and not extending beyond the same immediate section of his residence, and such acquaintance must be within that limit.” — To this definition the prisoner objected, which objection was overruled and the definition read to the witness, who then answered : — “I am. I live twelve miles from where John B. Henderson lives. He lived in my neighborhood about seventeen years ago and lias not lived there since. He frequently passes backward and forward through my neighborhood. I don’t know his general reputation for honesty, where he now lives; but I know some people on that side of Buckhannon river, and he transacts business within my neighborhood and associates with them, and they are well known to him and he to them, and has been for many years, and he owns a farm four or five miles from my neighborhood and is frequently there.”— Thereupon the counsel for the State asked the witness :— “What is John B. Henderson’s general reputation for honesty among his neighbors and acquaintances?” — To which he answered : — “It is not very good.”
The regular mode of examining into general reputation is to inquire of the witness, whether he knows the general reputation of the person in question among his neighbors, and what that reputation is. In the English courts the course is further to inquire, whether from such knowledge the witness would believe that person upon his oath. In the American courts the same course has been pursued. In answer to such evidence the other party may cross-examine the witnesses as to their means of knowledge and the grounds of their opinion, or may attack their general character, and by fresh evidence support the character of his own witness. The inquiry must he made as to his general reputation, where he is best known. It is not enough, that the impeaching witness professes merely to state what he has heard “others say”; for those others may be but few. He must be able to state, what is generally' said of the person by those, among whom he dwells, or with whom he is chiefly conversant; for it is only this, that constitutes his general reputation. And ordinarily the witness ought to come himself from the neighborhood of the person, whose reputation is in question. If he is a stranger sent thither by the adverse party to learn his reputation, he will not be allowed to testify as to the result of his inquiries; but otherwise the court will not undertake to determine by a preliminary inquiry, whether the impeaching witness has sufficient- knowledge of the fact to enable him to testify, but will leave the value of his testimony to be determined by the jury. (Greenl. Ev. § 461).
I do not see, how it is possible, that the definition by the .court of the phrase “neighbors and acquaintances” could have prejudiced the prisoner. It is not necessary for us to determine, whether said definition is or is not entirely correct. The manifest object of the rule is to find out the general reputation of the person sought to be impeached or sustained ; and certainly where a man is well known, he has a reputation either for honesty or dishonesty. Any one, who is well acquainted with those, with’ whom such a person .associates, and who knows him well, is competent to speak of the reputation, he has among them. Heffner had this knowledge and states what Henderson’s reputation was among those, with whom he associated. Suppose the witness had answered the first question — Yes—and then stated, what the reputation was, and on cross-examination had stated the game means of knowledge, which he stated on his direct examination, his evidence would not have been excluded. It would have been left to the jury to say, what weight it ghould have. Under the circumstances shown in the bill the .court did not err in admitting the evidence.
Bill of exceptions No. 24 was to the admission of the evidence of Dr. Newlon. _ He was asked the same question propounded to Heffner. He answered: — “ I live in the town of Buckhannon six or seven miles from where John B. Henderson lives — I am not so well acquainted with his reputation there as in Buckhannon. I rode deputy sheriff includ-' ing that section from 1877 to 1880, inclusive, and practiced medicine in that county. He frequently conies to this place, transacts business, attends court. He is well known to the people of this place and has been for many years. I know Ms general reputation for honesty at this place.” — Being asked: — “What is that reputation” — He answered: — “Not very good.” — Dr. Newlon showed, that John B. Henderson had a reputation for honesty in Buckhannon; and it was competent for him to tell the jury what it was. It would be a very narrow view of the subject to say, that a man had no reputation for honesty except in the immediate vicinity of his residence. He might not have much dealing with his immediate neighbors but might do all his dealing a dozen miles away. Many merchants in cities spend only the nights and Sundays at their homes, which are many miles away from their places of business, and they are not as well known as to their honesty, where they reside, as where they do business. It would be absurd to say, that no inquiry could be made about their reputation except in the immediate vicinity of their homes. The best evidence of a man’s reputation is the opinion of him expressed by the community, who know him best.
We see no error in the judgment of the Circuit Court; and it is affirmed.
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Green, Judge,
announced the opinion of the Court:
There are so far as appears no errors in the proceedings in this case unless, the court below erred in refusing on the motion of the prisoner to allow him. to offer evidence to prove, that the word “feloniously” had been interlined in said indictment after the same had been returned by the grand jury and after the grand jury had been discharged, but prior to the prisoner’s pleading “not guilty.” The record on its face shows, that the word “feloniously” had been inserted by interlineation in the indictment; but of course it does not appear, whether this vras done before or after the grand jury acted upon this indictment; and the only question really in this case is, whether the circuit court erred in refusing to permit the prisoner to prove bj^ witnesses, that this interline-ation was made after the grand jury had acted upon the indictment and had been discharged and in refusing to arrest the judgment. It seems to me, that it would he a reproach to our jurisprudence if a material allegation could be inserted in an indictment after it had been found by a grand jury to the prejudice of a party, and that such alteration of an indictment could because it is a part ot record in no manner be considered, as this would amount to depriving the accused of the protection given him by the Constitution, that the indictment must be found by a grand jury.
It is certainly a rule invariably recognized by the courts, that a record imports such absolute verity, that no person against whom it is pronounced will be permitted to aver or prove anything against it. This rule is well established, and we- now here refer to but a few of the many cases, in which this doctrine has been held. See Rex v. Carlile, 2 Barns. Ad. 971; 23 Eng. Ch. R. 226; Reitzenberger v. Braden, 18 W. Va. 280; Carper v. McDowell, 5 Gratt. 212, 226; Harkins v. Forsyth, 11 Leigh 24; Taliaferro v. Pryor, 12 Gratt. 277; Vaughn el als. v. The Commonwealth, 17 Gratt. 386; Quinn et als. v. Commonwealth, 20 Gratt. 138. "Whatever therefore on the face of .a book of record has been duly authenticated by the signature of the judge, must he held to he an absolute verity, and it cannot be contradicted; and so also any paper actually referred to on the record-book as filed or as constituting a part of the record is to be regarded as a part of the record, and is as much a verity as if it had been spread out at length as a part of the record. But it is only that which was actually on the record-book, when thus authenticated or that is actually contained in some paper so made a part of the record by reference, that is thus held to he au absolute verity. And therefore if after a record is made up and duly authenticated by the signature of the judge, any addition is made to such record fraudulently by any interlineation made by another, this false and fraudulent interlineation constitutes in fact no part of the record, and evidence introduced to prove, that such interlineation was falsely and fraudulently made by one not authorized to make the same, is really not an impeachment of the verity of the record, but is simply proving, that such fraudulent interlineation was really never a part of the record. The absolute verity attributed to a record cannot be used to give sanction to a forgery or to a fraudulent erasure of the record. And accordingly the authorities show, that where a record has been falsified by erasure or interlineation it may on motion be amended, or more properly speaking it may be restored to its original condition. The reason assigned for this in the old books is, “because the wickedness of any person in completing the records of the courts ought not to obstruct its justice or prejudice any of the parties.”
The authorities sustaining these views are most of them very ancient. The first case I find is, Whiteing v. Abbington, 2 Roll. N. 80-81 decided about 1620, in which judgment was rendered against Abbington and Mary, his wife, but after-wards the word Mary was erased from the records. Nevertheless execution was issued on the judgment, as it was originally, and Mary Abbington brought a writ of error in the exchequer chamber alleging, that there was no judgment against her. But when this writ of error was pending amotion was made in the court below to amend the record, or more properly speaking, to make in the record-book an entry stating what had been erased from the original record, and that the court had changed the erased record by restoring the words which had been erased; and this was done and approved by the appellate court, and it had corrected accordingly the transcript of the record, which had been sent and certified to it, before it had been corrected in the court below on motion.
Judge Tucker in Bias et al. v. Floyd, Governor, 647-648, reviews this case, and I think correctly deduces from it these principles : First, that if a record has been altered by erasure or interlineation by some unauthorized person, the court will upon motion restore it to its original and true form; Second, that this correcting of the record can only be made in the court whose record it is, and not in the appellate or any other court; Third, that when a record has been thus interlined or erased its verity cannot be questioned, in cidentally in any other proceeding, but the verity of what is an apparent record can only be brought in question directly by a motion to correct it, or more properly to restore the record to its original condition; and lastly, when it has been thus corrected or restored to its original form in any other proceeding, it will be taken in its corrected or original form and not in its falsified form. These principles were recognized in our ancient books and decision as correct, and seem to have been almost undisputed, nor have they been controverted so far as I have discovered in the more modern decisions.
The modern decisions firmly maintain the ancient rule laid down by Lord Coke in 1 Inst. 260, "that the rolls being the records or memorialls of the judges of the courts of record, import in them such incontrollable credit and oeritie, as they admit no averment, plea or proofe to the contrarié.” But the record, which is thus held to be an absolute verity is the record as it was originally authenticated by the signature of the judge. And there is nothing in the principles laid down in Whiteing v. Abbington, 2 Roll. 80, that is in conflict with this principle laid down by Lord Coke, and universally followed in the modern decisions. For the principles established in the decision in Rolle’s Reports do not permit the original record, authenticated by the judge’s signature, to be altered by proof that its statements are-false, but simply allows it to be proven, that what is this original record apparently authenticated by the signature of the judge was not in point of fact the record, which had been so authenticated by the judge, but that by a forgery, an interlineation or erasure that is now falsely made to appear to be such record, which never was in fact a record, aud never had been so authenticated by the signature of the judge. The principles laid down in said case reported in Rolle’s Report are recognized as correct. See Roll. Abr. title Am. § 5, 209, and in Vin. Abr., under title Am. and Jeofails; 2 Vin. Abr. 312; also in Bacon’s Abr. vol 1 title Am. and Jeofails (4) p. 259.
In Foster and Taylor’s Case, Poph. R. 196, it was decided in an action of ejectment the court below amended a record which had been altered without proper authority though when so amended the case was pending in an appellant court on writ of error the character of the alteration made in this case does not appear in this report of the case but it does appear in Bacon's Abr. vol. 1 p. 259, title Am. and in Jeofails p. 259, where it is thus stated: “In ejections firmes the leave was made the 10th of May; after verdict for the plaintiff it was made the 11th of May by a rasure; and it appearing to the court, that the declaration was vitiated by the said rasure they amended it both in O. B. and B. B.” I understand from this, that the declaration in the suit was after verdict changed by erasing May 10 and substituting May 11, which resulted in vitiating the judgment of the court. After a writ of error had been taken to this judgment, the record was amended in the court below by restoring the true date of the leave as it was originally in the declaration, May 10; and this was approved by the appellate court. This case shows, that the rules we have stated as deducible from the case of Whiting v. Abbington, 2 Roll. 80, 81, are as applicable to a change made fraudulently in a declaration or indictment as they are to those made on the record-book, for such declaration or indictment is as much a part of the record when referred to in it, as are the entries on the record-book itself. So it is stated in 2 Vin. Abr. 312, and in Bacon’s Abr. vol. 1 p. 225, that where it appeared in a venire facias, that Ghumbry was erased and made Iienily the record was amended and restored to its original state. Bacon in his Abridgment vol. 1 p. 259, thus states the law: “If any part of the record be vitiated by rasure the court will restore it by amendment, because the wickedness of any person in corrupting the records of the court, ought not to obstruct the justice of the court or prejudice any of the parties.” And he inclines to the opinion though it is doubted, that the person who makes such fraudulent erasure is guilty of felony, even though it be afterwards corrected by the court making such amendment and the record is then restored to its original state.
These view's expressed by the old law waiters and in the reports were approved by the court of appeals of Virginia in Bias et al. v. Floyd, Governor, 7 Leigh 640. In that case the State issued a seieri facias to enforce the amount due on a recognizance conditioned, that one Hagar should appear on the first day of the next term oí the superior court of law of Kanawha county to do and receive what should be enjoined him by said court on a charge of having feloniously passed certain counterfeit money and for having counterfeited the same, which recognizance had been broken and forfeited. A plea of no such record was filed, and the oyer was prayed of the recognizance and the scieri facias demurred to. And then a rule was awarded on certain affidavits to show cause why the recognizance should not be suppressed and held void, and the further prosecution of the scieri facias discontinued. This rale was discharged, the demurrer overruled and j udgmont given against the defendant on the plea of no such record. The affidavits showed, that the words above italicised or words equivalent to them had been interlined in the recognizance after it had been taken by the justice of the peace, and that after such interlineation it had not been acknowledged or seen by the defendants, who were not informed that such interlineation was made. The court of appeals reversed the judgment discharging the rale, and the judgment on the scieri facias, and remanded the cause to said circuit court with directions to amend the recognizance according to the right of the case, and then to proceed to a new trial of the scieri fcaías upon the defendant’s plea of nul tiel record. The court treated the recognizance as a record, and held, that on the rule or on a motion it could by an order of the court be amended, or more properly restored to its original form before its interlineation, and if it was in fact interlined after the recognizance was taken in the manner claimed, the recognizance should be restored to its original form and when so restored, it being materially different from the recognizance described in the scieri facias, the judgment would have to be rendered for the defendant on the plea of md tiel record. The views taken by the court were those hereinbe-fore expressed, and Judge Tucker, who delivered the opinion of the court referred to and approved the old English authorities, which I have cited.
This case meets our approval, and especially the four deductions drawn by Judge Tucker from the case in 2 Roll. R. p. 80, 81, which we have in substance stated. It may be said, that in this case there was no distinct motion made to correct the indictment or to restore it to the condition in which it was before the alleged intei-lineation of it. But the record as we have set it out discloses substantially, that the court below was asked to hear the evidence to prove, that this indictment was interlined, after it was proved by the. grand jury, in a material matter indicated, and the court refused to hear such evidence. And this motion of the defendant was in connection with a motion in arrest of judgment, which motion must have been sustained provided the court on hearing the evidence had ordered the indictment to be corrected by striking out the interlined portion, as being-no j>art of the indictment found by the grand jury, it having been interlined subsequently.
Ve therefore consider, that there was as shown by this record substantially a motion to strike out of the indictment this interlined portion, as constituting no part of the indictment or record; and therefore, that the correct mode of proceeding has been substantially adopted by the defendant in this case, and we may remark here, that in the case of Bias et al. v. Floyd, Governor, 7 Leigh 640, there was, as in this case, no formal motion to strike out the interlineation as constituting no part of the record and restore the recognizance to its original condition, yet the court of appeals proceeded just as if there had been such formal motion. The irregularity in this respect is no greater in the case before us than it was in the case in 7 Leigh, and we shall disregard it as was done by the court of appeals of Yirginia in that case. This formal motion to restore this indictment to its original form and to make an entry of such restoration in the record-book could be even now made in the circuit court of [Randolph, as we have seen, and this Court could not decide this ease till an opportunity was afforded to make such formal motion. But we think, this motion has been substantially made already, and that the circuit court of Randolph has substantially refused to entertain such motion or to hear hny evidence in support of the same, and has substantially dismissed it; and therefore we consider, that there is no necessity for postponing the decision of this case in order that such iormal motion may be made.
It is very obvious that the interlineation in this case, that is the words “feloniously,” made a most material alteration in the indictment, if such interlineation was really made after the grand jury found the indictment and had been discharged; and that unless these words were in the indictment as found by the grand jury, the indictment is fatally defective, and the judgment on the verdict of the jury must be arrested, as on such an indictment no judgment could- be rendered against the defendant. Tbe fact, that the record-book says, that “the grand jury presented an indictment against Charles Yest for a felony” would not properly speaking, be contradicted by proving, that that the word “felo-niously” was interlined, after the grand jury bad found this indictment, but it would thus be shown, that the indictment upon which be was tried was inconsistent with the original indictment as actually found by the grand jury; and this original indictment, as so found and endorsed by the foreman of the grand jury, is as much a part of the record as is the entry on the record-book signed by the judge. The calling of the offense set out in the indictment a felony on the record-book is stating a legal deduction not a fact; and if the word “feloniously” was not used in the original indictment, even this legal deduction was erroneously drawn by the court.
Tbe judgment of the circuit court rendered on this verdict must therefore be set aside, reversed and annulled; and this case must be remanded to tbe circuit court of Randolph county with instructions to bear any testimony, which may be introduced to prove, that the word “feloniously” bad been interlined after the indictment bad been found by tbe grand jury and after they bad been discharged, and after hearing all the evidence on each side in reference to the alleged alteration of the indictment after it was found, the court shall by an entry of record correct tbe indictment so as to make it correspond with the indictment as found by tbe grand jury; or if in its present form tbe indictment is tbe same as that found by tbe grand jury, and it has not since such finding been so interlined or altered, then it shall make, an entry on its record to that effect; and tbe court after it has thus restored tbe indictment to tbe form, in which it was when, found by the jury or has determined, that it is now in such form it shall proceed to determine the motion of the defendant in arrest of judgment regarding the indictment as of the form, which the court upon this evidence shall determine it to have been, when the indictment was found by the grand jury.
The Other Judges Concurred.
Judgment Reversed. Cause Remanded. | [
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Gbjsek, Judge :
The only question argued by the counsel for the defendant in error is: — Has this Court jurisdiction to review the judgment of the Circuit Court? He insists, that it has not, and urges the following reasons :-Ast, because it was discretionary with the Circuit Court either to award or refuse the certiorari, and when that court has a discretion, its judgment can not be reviewed; and 2d, because the order sought to be reviewed was not a final judgment, if it can be called a judgment at all, there having been but one party, the plaintiffs in error, before the court, when the order was rendered.
It was anciently held, that whatever rested in the discretion of the court could not be reviewed. This was applied to amendments of or the refusal to amend pleadings or the record in any part, — to the continuance or the refusal to continue common-law suits to another term&wkey;to the granting of or the refusal to grant new trials, and to a great variety of questions arising, while the case was being tried, and which were Regarded as questions of practice under the control of the court below and not subject to review. But in most of the courts this doctrine has been for some time and is gradually changing; and in some of the States a very great change has taken place. In other States on the contrary it has been only slightly or not at all modified. There has been scarcely a perceptible change in this doctrine in the practice of the English courts' or in the Supreme Court of the United States or in the Federal Circuit Courts, as will appear from the following cases : — Meelish v. Richardson, 23 E. C. L. 276; The Marine Ins. Co. v. Hodgson, 6 Cranch 206; Tolland v. Sprague, 12 Pet. 300; Walden v. Craig, 9 Wheat. 576; Chiral v. Reinicher, 11 Wheat. 280; U. S. v. Buford, 3 Pet. 12; Pickett v. Legerwood, 7 Pet. 144; Bridlove v. Nicolet, 7 Pet. 418; Shier v. Bank, 16 How. (U. S.) 571; Spencer v. Tapsley, 20 How. (U. S.) 494; Wright v. Hollingsworth, 1 Pet. 165; Sime v. Hundley, 6 How. (U. S.) 1; Barrow v. Hill, 13 How. (U. S.) 54; Thompson v. Selden, 20 How. (U. S.) 196; Campbell v. Strong, Hump. (U. S. C. C.) 265; Welch v. Manderville, 7 Cranch 152; Day v. Woodworth, 13 How. (U. S.) 363; Young v. Black, 7 Cranch 565; Barr v. Graby, Wheat. 213; Blunt v. Smith, 7 Wheat. 248; Doswell v. De la Longa, 20 How. (U. S.) 29; Warner v. Morton, Id. 448; Schunchardt v. Allen, 1 Wall. 371; U. S. v. Gibert, 2 Sumn. 20; Henry v. Ricketts, 1 Cranch (U. S. C. C.) 545.
Many of the States have adopted the ancient, doctrine and followed the English cases and the above cited cases of the U. S. Supreme Court. In other States, while the anciendoctrine has professedly not been repudiated, it has in fact been substantially modified, and cases have been reviewed, which would not have been reviewed by the English courts or by the Supreme Court of the United States. (Powell v. Jopling, 2 Jones 400; Pendleton v. Pendleton, Id. 136; Campbell v. Barnhill, 1 Jones 557; Golloway v. McKeethan, 5 Ired. 112; Bradhurst v. Pearson, 10 Ired. 157; Green v. Cole, 13 Ired. 425; Caldwell v. Remington, 2 Whart. 132; Newlin v. Palmer, 11 Serg. & R. 98). There are other decisions and some in the States, in which the above decisions were rendered, which apparently adopt the ancient doctrine. [Tassey v. Church, 4 Watts. & S. 141, (39 Am. Dec. 65); Bedell v. Powell, 13 Barb. 184; Dibble v. Rogers, 2 Mich. 407; Warren v. McNulty, 2 Gilman 355, (43 Am. Dec. 58); Seaburg v. Stewart, 22 Ala. 207, (58 Am. Dec. 254)].
Again in a number of States decisions have been rendered, which amount to a repudiation of the ancient doctrine, and from which the inference to be drawn is, that, wherever a subject of discretion is decided by the court below, the decision must bein accordance with sound judicial discretion, governed by established rules and principles, or at least it must not be palpably, in violation thereof; and, if it is, such decision though on a subject within the discretion, as it has been called, of the court below, will nevertheless be reviewed and reversed by the appellate court. (Vanblaricum v. Ward, 1 Blackf. 50; Goldsby v. Robertson, Id. 21; Jones v. Cooper, Id. 47; Fuller v. State, Id. 63; Davis v. Gray, 3 Litt. 451; Maxwell v. McIlroy, 2 Bibb 211; White v. Hart, 35 Ga. 269; Avery v. State, 26 Ga. 233; McDonald v. Railroad Co., 26 Ia. 124; Mansfield v. Wilkerson, Id, 482; Shumaker v. Howeler, 22 Wis. 43; Dobbins v. State, 14 Ohio St. 304; Hook v. Nanny, 4 H. & M. 157, note; Syme v. Montague, Id. 180; Milstead v. Redman, 3 Munf. 219; Higginbotham v. Chamberlaine, 4 Munf. 557; Jacobs v. Sale, Gilmer 123; Anthony v. Lawhorne, 1 Leigh 1; McAlexander v. Hairston, 10 Leigh 486; Power v. Tinnie, 4 Call 411; Shanks v. Fenwick, 2 Munf. 478; Keys v. McFatridge, 6 Munf. 18; Rohr v. Davis, 9. Leigh 30; Fisher v. Vanmeter, Id. 18; Slaughter v. Tutt, 12 Leigh 147; Brugh v. Shanks, 5 Leigh 598; Grayson's Case, 6 Gratt. 712; Wormley's Case, 8 Gratt. 712; Kates’s Case, 27 Gratt. 561; O'Neal's Case, Id. 582; Hewitt v. Comm, Id. 627; Blosser v. Harshbarger, 21 Gratt. 214; Brown v. Speyers, 20 Gratt. 308; Bank v. Mathews, 3 W. Va. 26; Ressett v. Gardner, Id. 531; Davis v. Walker, 7 W. Va. 447; Wilson v. Wheeling, 19 W. Va. 328: Tefft v. Marsh, 1 W. Va. 41; Hoover v. State, Id. 336; Ott v. McHenry, 2 W. Va. 72; Campbell v. Lynn, 7 W. Va. 665; Shrewsbury v. Miller, 10 W. Va. 115; Lucas v. Locke, 11 W. Va. 81; Miller v. Ins. Co., 12 W. Va. 116; Sweeny v. Baker, 13 W. Va. 168; State v. Williams, 14 W. Va. 852; Shelf v. Huntington, 16 W. Va. 308).
But when the subject, upon which the inferior court has acted, is within its absolute or pure discretion, its action can not be reversed. (Craig v. Sabrell, 9 Gratt. 132; Boggess v. Robinson, 5 W. Va., Syll. pt. 3, p. 402 and p. 413; Ex parte Yeager, 11 Gratt. 655; French v. Noel, 22 Gratt. 454; Hein v. Smith, 13 W. Va., Syll. pt. 1-p. 358). Such cases of pure discretion according to the views of the courts, who claim the right generally to review the decisions of inferior courts in reference to discretionary subjects, are comparatively few in number and relate to subjects, which, when not based on statute-law, are governed by no fixed rules and precedents and do not involve the essential rights of parties but pertain more to the convenient management of the business of the inferior court; or, when they do involve the substantial rights of parties, they are regulated by some statute, and by its terms or from the nature of the subject it .is obvious, that neither the legislature nor the constitution never intended the action of the inferior court in these particular matters to be reviewed, or from their peculiar character- they were not properly reviewable by an appellate court. With a few exceptions of this character the spirit, which pervades these decisions last above cited including the Virginia and West Virginia cases, is, that when a matter is to be decided by an inferior court, though it be called a subject of discretion, as the awarding of a new trial or the granting of a continuance, amendments of pleadings and many other matters, and this discretion is so exercised as to prejudice the substantial rights of a party, it may be reviewed at his instance by an appellate court and corrected by such court, when the inferior court has not exercised a sound judicial discretion in accordance with established rules and principles. This seems to me right.
Formerly these questions were doubtless matters of pure discretion and then properly not the subjects of review ; but they are no longer so, as the rules and principles governing them with the few exceptions, to which I have referred, have now become, so settled and fixed, that these subjects are really no longer matters of mere discretion, though still so called, the decision of the court in such cases being now really not the exercise of discretion proper but rather the application by the court below to the case before it of well known rules and principles of law; and if it errs in the performance of this judicial duty, its errors should be corrected by the appellate court, just as any other errors of law committed by it are corrected.
The above cited cases show, that the State-courts have made different degrees of progress in ridding themselves of the fetters put upon the appellate courts by this ancient doctrine. In some States scarcely any progress has been made. In Massachusetts for instance the ancient doctrine has been generally followed. Yet even there it has sometimes been questioned. (Strong, Petitioner, 20 Pick. 384; Carpenter v. Bristol, 21 Pick. 258). The difficulty in ancient times Avas, that in all such cases, when the subject was said to be in the discretion of the court, the principles governing them were so unsettled, that they could not' have been regarded other than as matters of pure discretion. There was no controlling rule or principle; and of course there could be no error, when no rule or principle was violated. But now in most of the cases formerly called matters of discretion rules and principles have been laid down ; and in many cases these rules are definitely and firmly fixed. In such cases these subjects should no longer be called matters of discretion; and, to distinguish them from what were anciently so -called, they are now often called matters of sound judicial discretion, distinguishing them thus from matters, in which no rules or principles have been laid down to govern the discretion of the court, and which are now frequently spoken of as matters of pure discretion or matters belonging to the arbitrary discretion of the court. But, as I have said above, there are not many matters, which affect the substantial interests of parties, in regard to which rules and principles have not been laid down to govern the discretion of the court. In such cases the exercise of the discretion of the court must be a sound judicial exercise of such discretion, not an abuse of it; for it may be reviewed by an appellate court, and, if if has been obviously abused to the prejudice of the party complaining,'such abuse may be corrected. Powers in his work “Appellate Proceedings” Appendix, Note II, p. 406, after reviewing the subject at some length reaches a conclusion, which he expresses as follows :
“Upon consideration of the whole subject both as to principle, and what has been said and done by the courts in this country, we can come to no other conclusion, but that the rule, that matters of discretion are not subject to review and error, must be confined to cases, which are purely matters of discretion or in their result not injurious to the party complaining of them. But whenever in the exercise of dis* cretionary powers it manifestly appear, that the discretion has been perverted and abused, or that the decision is contrary to well established rules and principles and to the injury of the party, then it must be subject to review in the appellate court like any other decision that is in violation of law and principle.”
Whatever may be the law elsewhere, this correctly states the law in Virginia and West Virginia, as wall appear on an examination of the numerous decisions in these States above referred to; and many other cases might be cited in both States, which are based on the law thus laid down by Powders, and which are in direct opposition to many of the decisions of the Supreme Court of the U. S. as well as many decisions in other States. We could not, if we were so disposed, change the law, as we have above stated it; for it may' be regarded as settled by a long train of decisions both in Virginia and in West Virginia. But, as I have said it seems to me clear, that these Virginia and West Virginia decisions are based on correct views, which must ultimately be universally adopted. The progress of law can not be arrested by holding on to the ancient doctrine, which has become entirely unsuited to the law, as it now is throughout the United States.
The counsel for the defendant insists, that the writ of certiorari is not a writ of right at common-jaw (except at the suit of the sovereign) and cites to sustain the position 2 Bac. Abr. Art. “ Certiorari/” Haine v. Campion, 4 Halst. 22; Duggen v. McGruder, Walker (Miss.) 122, (12 Am. Dec. 527 and note); Matter of Highway, 3 N. J. Law 579. There is no question, but this is the law. Thus it is clear, the writ ■■of eertiorari ought not to issue but should be denied, where there is other adequate remedy, or, if it be a matter of no serious complaint or injury; but it is equally clear, that the ■allowance of a writ of eertiorari is a matter of sound judicial discretion, not a matter of pure or arbitrary discretion. [People ex rel. Onderdonk v. Supervisors, 1 Hill (N. Y.) 195.] But that the granting of the writ of eertiorari is not a matter within the pure and arbitrary discretion of the court is so fully shown by the note to the case of Duggens v. McGruder in 12 Am. Dec. referred to by counsel for the defendant in error, that it is hardly necessary to do more than quote, what is there said on the subject.
“The proposition asserted in the foregoing decision, that certiorari is not except upon the application of the king or the people a writ of right, .is abundantly sustained by the -authorities both at common law and under the practice in the United States. It is everywhere styled a discretionary writ. By this we do not understand, that the court or judge has the right to grant or refuse the writ capriciously; but that all the circumstances disclosed to the court are to be -taken into consideration, and writ is to be refused or, if im-iprovidently granted-is to be quashed, unless substantial justice and equity will be promoted by the exercise of the supervisory authority of the superior tribunal (Bannister v. Allen, 1 Black 414; Erwin v. Erwin, 3 Dev. 528; Bridge Co. v. Magoun, 8 Greenl. 293; Drown v. Stimpson, 2 Mass. 445; Less v. Childe, 17 Mass. 352; Hun v. Grimes, 2 N. H. 210; Marc v. Baker, 2 Cow. 396; People v. Supervisors, 15 Wend 198; Trustees of School v. School-Directors, 10 Chicago L. N. 380; Flournoy v. Payne, 28 Ark. 87; Railroad Co. v. County Comm'rs, 112 Mass. 206; Keys v. Marine Co., 47 Cal. 252; People v. Andrews, 52 N. Y. 445; Waldridge v. Waldridge, 46 Vt. 617; Knapp v. Hill, 32 Wis. 467; 18 Albany L. J. 142). The discretion of the court is to be exercised as in other cases not from outside rumor nor from the representations of parties made out of court but from the petition and return or such other 'matters, as under- fije, practice of the. particular State -are .proper and compefeW, fpr judicial consideration. (Scroggins v. State, 55 Ga. 380.) If the pro? ceedings objected to are merely 'informal, they will not be set aside, if substantial justice has been done. If however the action of the board or tribunal sought to be reviewed is wholly void for want of jurisdiction, it must be vacated, although the action taken would be equitable and meritorious, if proceeding from a tribunal having authoiv ity to take it.”
There can be no question, but that, while the writ of cer-tiorari is discretionary in the sense above explained and not a writ of right, still the discretion to be exercised is clearly not a pure and arbitrary discretion but one regulated by precedent and established principles; and therefore, whatever may be the law elsewhere, in Virginia and West Virginia a decision would be reversed, which awarded the writ of certiorari, when according to precedents and principles laid down as governing in such cases no writ should have been awarded; and on the other hand if a writ had properly been awarded and was afterwards improperly quashed as improvidently awarded, the appellate court would reverse such decision ; and we will presently see, that the decision would be reversed also, if the court had improperly refused to grant such writ of certiorari, when the applicant had a right to have it awarded in accordance with precedents and principles laid down as regulating the issuing of such writ, and he had no other redress except such review and reversal of such decision. The authority to review a certiorari case, when the case has been heard, both parties being before the court below, is unquestionable, though the writ be a discretionary writ in the sense we have explained. Under the numerous authorities both-in Virginia and this State, which I have cited, there could be no hesitancy on the part of this Court to review a case of certiorari decided in the court below. Such a cáse is undistinguishable from the numerous cases, which the Virginia and West Virginia Court of Appeals have reviewed, when the error complained of was the refusal to award a, new trial or grant, a continuance to the plaintiff in error, whereby he was improperly forced to try the case, when he was unprepared. These are obviously matters within the discretion of the court.below in the same sense as the issuing of a writ, of certiorari is discretionary.In all these cases the discretion is regulated by precedent and established principles; and if such discretion is in any case abused, according to the decisions in this State and in Virginia such abuse would be corrected by an appellate court on review, though there are States, in which such abuse would not be reviewed. The following are certiorari cases, which have been the subject of review in this Court: — Dryden v. Swinburn, 15 W. Va. 234; Board, &c., v. Hopkins, 19 W. Va. 84; Fowler v. Thompson, 22 W. Va. 106; Poe v. Machine Works, 24 W. Va. 517; Chenowith v. Commissioners, 26 W. Va. 230.
All of these cases were brought before us by writ of error, that having been decided in the first case to be the only proper way under our statute-law, though they could not have been brought before us in that way but for the statute. But in no case has a doubt as-to our right to review such-cases, because the writ of certiorari was not a writ of right but a discretionary writ, been suggested until the suggestion now made in argument by the counsel for the defendant. The numerous cases both in-this State and in Virginia, which we have cited, show beyond question, that, whatever doubts may have been raised in other States or elsewhere as to the right to review' a certiorari case, because it was discretionary with the court below to give the writ, there never could have been any question of the sort raised in this State or in Virginia. Though our jurisdiction in such cases was-disputed in Board, &c., v. Hopkins, 19 W. Va. 84, it was on entirely different grounds, which were applicable to that particular case. But if our general right to review cases of certiorari, where no special objection could be raised to our jurisdiction, had been questionable, it was settled beyond all possible dispute by the amendment to our constitution, which took effect on October 12,1882. Article VIII, section 3, provides, that this Court shall have appellate jurisdiction “in cases of quo warranto, habeas corpus, mandamus and certiorari(Warth’s Am. Code 23; Board v. Hopkins, 19 W. Va. 84; Fowler v. Thompson, 22 W. Va. 106.)
But it is insisted, that, though this Court may have jurisdiction by writ of error to review certiorari cases, there are special reasons, why this Court can exercise no such jurisdiction in this case. These reasons are, that on the 10th of February, 1885, when the order of the Circuit Court of Wet-zel county complained of, that none of the proceedings or orders of the County Court of Wetzel should be reviewed and refusing to grant a writ of certiorari asked and dismissing the plaintiff’s petition, was made, no defendant was before the court but only the plaintiffs ; and it was therefore not a case, to which a writ of error could properly be granted ; nor was said order a final judgment, the defendant having had no opportunity to be heard. Now it seems to me, that the true principle to be deduced from the authorities as well as from reason is, that, when a court refuses to grant a writ of error or mandamus or writ of prohibition or writ of certiorari or other proper writ to remedy the wrong; complained of, and the person asking said writ has no other remedy, though it is a discretionary writ, the appellate court will by the appropriate writ review the order refusing to grant such writ, though, when such order was made, no one was before the court but the party complaining, and though the other party had not been heard in the court below.; for,, if such order can not be reviewed by the appellate court, there is a total failure in the law to furnish a remedy for a wrong, a state of things, which it is the boast of the common-law can not exist; and because such order refusing to award such writ, when the plaintiff has a right to have it awarded and has- no other remedy for the wrong-, though not technically a final judgment, is, so far as the plaintiff is concerned, in its operation and effect a final judgment against him just as really, as if the writ had been awarded and on the hearing the case had been decided against him. No injustice or wrong is done to the defendant, as in such a case, if the order of the court below refusing to- grant such writ is reversed, the order of the appellate court will be only-, that the writ shall be issued, and he will have his hearing, after it is issued, before the lower court and has his hearing, before the appellate court on the question of the propriety of issuing such writ, when the writ prayed for in the court below is a discretionary writ and not a writ of right. The following authorities sustain this position :
In Yates v. The People, 6 Johns. 338, it was decided, that-a writ of error would lie to the judgment of an inferior court on a writ of habeas corpus, though it was urged that it was not a judgment, and therefore error would not lie; that habeas eorpus is a writ of privilege merely for' the enlargement of the prisoner without touching his case ; that it does not touch the merits. Spencer, Judge, refers among other authorities to Coke upon Littleton. On page-403 he says: — “Coke in his Commentaries on Littleton says: ‘A writ of error lieth, when a man is grieved by an error in the foundation proceedings-.’ ” He concludes by saying on page 407: — “Finally it appears to me to involve the highest absurdity to conceive, that the framers, of our constitution and laws meant to create this high tribunal to correct the-errors of our highest courts of judicature in civil cases and to leave the still greater and more valuable right of personal liberty unprovided for and unprotected by appeal to the highest court in a case, when in fact a judgment has been given.”
In the case of Etheridge v. Hall, 7 Porter 56, Goldthwaite,, Judge, says: — “It is said by Chancellor Walworth in the case of Ex parte Negus, 10 Wend. 34, that a writ of error would-not lie on the denial of mandamus or prohibition ; and it is only by virtue of a statute, that the judgment rendered on such writs can be reviewed for error in the English, courts ; and that it is yet an open question in these courts,, whether the same rule does not prevail as to writs of habeas-eorpus.” In New York it has been held, that a writ of error' will lie on the refusal to grant a writ of habeas corpus-(Yates v. The People, 6 Johns. 402). Whatever may be the rule adopted by the English courts on this subject, we feel-warranted by the decision last cited in deciding, that there-is no reasonable distinction between the judgment of the court refusing to grant a writ and the one rendered on it;: for the right of the citizen may be as much prejudiced by refusing to render him the means of attaining justice as by an incorrect judgment.
In the case of The State v. Commissioners of Taledega, 3 Porter 416, there was a denial of a mandamus, and on writ of error the case was reviewed without objection. But ini another mandamus case the Appellate Court gave its reasons-for taking jurisdiction in the following language:
“If the judgment of the Circuit Court is to be considered as final on the subject matter of the petition, there can be no doubt of the authority of this court to reverse its determination; and we can arrive at no other con-' elusion. We are daily in the practice of reversing judgments rendered on motion to quash ordinary writs of attachments, which are certainly not more final in their character, than is the one we are considering. We conclude then, that the judgment rendered in this case is such a final judgment, as to give this court jurisdiction on a writ of error; and this judgment must be reversed and the cause remanded with directions to the Circuit Court to proceed in the cause and issue the writ prayed for, unless sufficient cause-be shown by the defendant against it.”
In Mayo v. Clark, 2 Call. 276, it, was decided, that, when-' a District Court refused to grant a supersedeas to the County Court, the Court of Appeals will award a supersedeas to-said order of the District Court. The Court of Appeals iu that case very properly declined to award a mandamus to the District Court commanding it to award a supersedeas to the judgment of the County Court. In that case there was no party before the District Court but the plaintiff, and the judgment of the District Court was not technically a final judgment; but it was practically a final judgment, as the-judgment- of the County Court would necessarily remain in. force, if no supersedeas was granted by the District Court;, for it alone was authorized .to grant such supersedeas. And this granting of a supersedeas was discretionary with the District Court in precisely the same sense, in which the-awarding of a writ of certiorari was discretionary with the Circuit Court in this case. -There is in my judgment no difference in principle between the case before us and Mayo v. Clark.
There are other decisions precisely like the above. Thus in Williams v. Bruffy, 12 Otto 248, it was decided, that in a case, in which the Supreme Court of the United States had jurisdiction to review a case decided by the Court of Appeals of Virginia because of the character of the case when .ever they had. a right to review a case, in which there had been a final decree rendered by the Court of Appeals on a writ of error, they would have the saíne right to review, if the Court of Apjieals had made an order refusing to award a writ of error. The syllabus on this point is: — “Jurisdiction attaches, whenever the highest court of a State by any de- . cisión, which involves a Federal question, approves or denies the validity of the judgment of an inferior court, over which it can by law exercise appellate authority, whether the decision after the examination of the record of that judgment be by refusing a writ of error or by dismissing a writ previously awarded.” The ground upon which the Supreme ■Court of the United States regarded this refusal of the Court of Appeals of Virginia to award a writ of error to a judgment of the Circuit Court of Rockingham dismissing the plaintiff’s action is stated by the court on pages 249, 250 as follows:
“By the law of Virginia the application is made to the .Supreme Court of Appeals for a writ of supersedeas. The court looks into the record of the case and only allows the writ, when of the opinion, that the decision complained of .ought to be reviewed. Its action upon the record is in effect a determination, whether or not it presents a sufficient question for the consideration of the court. If it deem the judgment of the court below plainly right and reject the application on that ground, and its order of rejection so state, no further application for the writ can be presented. The judgment of the court below is thenceforth irreversible. So in .effect its refusal of the writ on the ground is equivalent to an affirmance of the judgment, for the reason that the record .discloses no error.”
This decision and reasoning appear to me to cover exactly the case before us, so far as the jurisdiction of this Court to review the order of the Circuit Court made February 10,1885, is concerned. If that order had been based on the failure of the plaintiff, to notify the County Court of Wetzel, that they intended to apply to the Circuit Court of Wetzel for this writ of certiorari the case might have been different, as after the making of such order the Circuit. Court of Wetzel might :still have granted a writ of certiorari on the presentation by the same plaintiffs of another like petition, after they had given such notice to the County Court; but this order on its face gives the following as its basis :■ — -“After consideration by the court of the matters alleged and complained of in said petition the court is of opinion, that none of the orders and proceedings of the County Court ought to be reversed or annulled on account of any supposed error set out in said petition ; therefore the court doth refuse to grant the writ of ■certiorari prayed for and doth dismiss said petition.” The ■court after this order could not grant a writ of certiorari on .another petition presented by the same parties ; for in such .a presentation the court would hold, that the matter complained of by them was res adjudicata; and as under our law the Circuit Court of Wetzel has the exclusive jurisdiction to review the proceedings of any sort of the County Court, it is evident we can properly apply the language of the Supreme Court of the United States above quoted to this case “So in effect its refusal of the writ on that ground is equivalent to an affirmance of the judgment for the reason that the record discloses no error.”
The counsel for the defendant in his argument in this case admits, that the plaintiffs in error have no redress left, and insists, that this judgment of the County Court complained of is now forever irreversible. If the decision and reasoning of the Supreme Court of the United States is sound, for that very reason we should take jurisdiction and decide the writ of error, which we have awarded, and not dismiss it as-improvidently awarded.
There have been recent decisions by our Court obviously based on the reasoning of the Supreme Court of the United. States above quoted. In Brazie v. Commissioners, 25 W. Va. 213, this Court entertained a writ of error to an order of a judge in vacation refusing to award a writ of prohibition to' restrain the County Court of Fayette county from proceeding in a certain manner to ascertain and certify the result of’ an election for county-officers. The jurisdiction of this Court' to hear and determine the writ of error appears to have been conceded, though there was a protracted controversy on the merits. Chenowith v. Commissioners, 26 W. Va. 230, was a case altogether similar', to the case before us. It is a writ of error awarded by this Court to the refusal of the judge of the Circuit Court of Randolph county to award a certiorari to the County Court of said county in certain proceedings before that court, which had led to an election-case, which had resulted in finding and declaring, that the petitioner had received the same number of votes for sheriff, as his opponent. We took jurisdiction in the case and decided, that the facts alleged in the petition were sufficient to entitle the petitioner to a writ of certiorari, and therefore reversed the order of the circuit judge refusing to award such a writ, and remanded the case to the said Circuit Court with directions to award the writ and proceed in the case according to the views of this Court stated in its opinion. In that case too, although it was contested hot only on its merits but also on technical points, the jurisdiction of this Court seems to have been conceded; and for this reason we have reviewed the principles, upon which we then acted, and we find, that that decision was sustained not only by Yirginian authorities but also by the .weight of authority elsewhere.
There is a case in 11 Gratt. whieh in principle sustains the position, that this Court has jurisdiction in such a case as the one before us. I refer to Morris, ex parte, 11 Gratt. 292, in which it was decided, that, “ if a Circuit Court refuse to issue a mandamus in a proper case, the party may apply to the Supreme Court of Appeals for a supersedeas .or writ of error and have the action of the Circuit Court reviewed and corrected.” Judge Lee delivering the opinion of the court said on page 294:
“I think, there can be no question as to the power of this court to review the action of the Circuit Court in refusing to award a mandamus upon an appeal from or writ of error or supersedeas to the order refusing the same. The order is final, and in a case involving a civil right, not a matter of controversy merely pecuniary, and the case is thus within the general terms of the law providing the appellate jurisdiction. * * * * The review of an order refusing a mandamus is in entire conformity with the long settled previous practice of this court in similar cases. In Mayo v. Clark, 2 Call 276, a District Court had refused to grant a superser deas to an order of a County Court concerning a road. The Oourt of Appeals refused to grant a mandamus to compel the District Oourt to grant a supersedeas; but did grant a supersedeas to the order of the District Oourt refusing it. * * * Several other cases may be found in which the court of appeals has allowed wits of supersedeas to orders of inferior courts refusing to grant writs of mandamus. (Dawson v. Thurston, 2 H. & M. 132; Dew v. Judges of Sweet Springs District Court, 3 H. & M. 1; Manns v. Givens, 7 Leigh 689.)”
These cases cited differed from the one then before the Virginia Oourt of Appeals in this, that in the case before the court the Circuit Oourt as in our case refused the writ and dismissed the petition, when it was presented, while in the other cases it refused the writ after a rule to show cause had been issued and returned. But it is obvious, that the Oourt of Appeals considered, that this made no difference, £ind that the cases were substantially the same.
It seems to me therefore, that the able counsel for the defendants in error in Chenowith v. Commissioners, 26 W. Va. 230, while contesting the case, wherever a contest could be made, very properly conceded the jurisdiction of this Oourt in that case, which was a case like the one now before us. Upon these Virginia cases Judge Lee says: — “There can be no question of the power of the court to review the action of the Circuit Oourt in refusing to award the writ.” The Virginia cases are binding authority upon us and independent of our own decisions settle our right to take jurisdiction in this case. There is also another decision rendered by this Oourt, which, if we had no other authority, would justify us in holding, that this order of the Circuit Court refusing to grant a writ of certiorari and dismissing the plaintiff’s petition was in effect a final judgment, from which a writ of error lies to this Oourt. I refer to the decision in Henen v. Railroad Co., 17 W. Va. 881, in whichit was decided, that the order of a Circuit Oourt removing a case at law to the Circuit Oourt of the United States is reviewable by the Supreme Oourt of Appeals of this State by writ of error. In rendering that decision we followed the decisions of the Courts of Appeals of several States. (Askesby v. Villas, 24 Wis. 165; Stat. ex rel. v. Judge, &c., 23 La. Ann. 27 (8 Am. Rep. 583); Stoker v. Leavenworth, 7 La. 390; Burson v. Bank, 40 Ind. 173 (13 Am. Rep. 285).
There is really less difficulty connected with the taking of jurisdiction by this Court in such a case as this one now bo fore us, than there was in the assumption of jurisdiction by the Court of Appeals of Virginia in like cases, because we have changed our law and. no longer require the judgment of the Circuit Court to be final in order to authorize the Supreme Court, to review it, but only require it to settle the principles of the case. While I think, the judgment, which we are called on to review, might well be treated as in effect final, as such judgments have often been, yet, it seems to me, it clearly settles the principles of the case; for it is admitted, that if the judgment stands, the judgment and action of the County Court will be irreversible and final. The principles of the case therefore are clearly as well settled by •the order of the Circuit Court appealed from, as if the order had been made after the return of the County Court of Wet-zel to a writ of certiorari, and the order had been in affirmance of the judgment of the County Court; for the ordei actually made is in effect such an affirmance. There is under our law no place for the exercise of ingenuity in settling, whether this judgment or order of the Circuit Court is technically a final judgment. The counsel for the defendant in •error has devoted most of his argument to endeavoring to show, that this order of the Circuit Courtis not technically a final judgment, and he insists it is no judgment, or at any rate not a judgment which can be reversed. To sustain this he refers to State v. Wood, 1 Zab. 682. This simply decides, that “A writ of error will not lie to Supreme Court for refusing to allow a certiorari?'' The reason given for this decision is simply that “the refusal to allow a writ of certiorari is a matter of discretion.” This case simply shows, that iíew Jersey is one of the States, in which the decisions* which are called discretionary, can not be reviewed. We have seen that West Virginia is a State, in which these discretionary decisions can be reviewed. The same case is reported at greater length in 3 Zab. 560. The syllabus is: “A writ of error will not lie to reverse the decision of an inferior court refusing to allow a certiorari, such allowance not be ing a matter of right hut. resting on the discretion of the court.” The reason here given would, we have seen, be regarded in West Virginia as no reason, this Court-habitually reviewing decisions “resting on the discretion of the court below.” There is in the opinion of the court a long and' learned description by Chief Justice Green as to what “ini any technical and appropriate sense may be denominated a final decision;” and this is the basis of the argument of the defendant’s counsel. I do not deem it necessary to review it. Enough has been said to show that in this State as well as in many other States such an order refusing to award a writ of certiorari or other writ,, though it be a discretionary writ, would be regarded, when this judgment could not be set aside in any other way,, or the wrong complained of redressed, as in substance and effect a final judgment.
The case of Allen v. Tyler, 3 Vroom 501, is also relied on by the defendant.. This decision was a refusal to award a writ of error to a decision of a court denying the application of the defendant to be discharged from arrest in a civil suit on contract, when arrest was founded on affidavits, that the debt had been fraudulently contracted, because this was not a final order or judgment. I suppose this decision was right but it seems-to me to throw no light on what should be our decision in this case. The case of Scott v. Burton, 6 Texas 322 (55 Am. Dec. 782) is also relied on by the defendant. The syllabus of the case is: “ The form of the final judgment is immaterial; but in substance it must show intrinsically and distinctly .and not inferentially, that the matters in the record have been determined in. favor of one of the litigants, or that the rights of the parties, have been adjudicated. Therefore a judgment, that a defendant recover his- costs, without an order, that the plaintiff take nothing by his suit, or some order equivalent, thereto,.is not a final judgment and an appeal from such judgment must, be dismissed at the cost of the appellant.” In the case before us the court in its order dismissed the- plaintiff’s' petition. This-was certainly the equivalent of, “'an order, that the plaintiff take nothing by his suit,” and clearly distinguishes the case before us from thé Texas case. This case is relied on, as- were the New Jersey cases, to show, what is technically a final judgment. I do not deem it necessary to go into the discussion of this point; hut I will say, that it is considered and discussed in my judgment more learnedly and accurately in the casé of Yates v. The People, 6 Johns by Spencer J. 398-405.
In the investigation, which I have made, 1 have come across several cases apparently opposed to the case of ex parte Morris, 11 Gratt. 292, above cited. These cases hold, that the refusal to allow a writ of mandamus can not be reversed. It was so held in State v. Cappeller, 37 Ohio St. 121; but the reason given is', that after the refusal of mandam%t,s by the inferior court the proper remedy is to apply for the writ to the Supreme Court of Appeals. When this can be done, the refusal of the writ by the inferior court would not either inform or in effect be a final decree, nor would it settle the principles of the case. It would then be like the refusal, of an inferior court to award an injunction, which for a like reason could not be appealed from in this State. See McDaniel v. Ballard, 4 W. Va. 196. So it has been held in Missouri that a refusal of the court to award a mandamus can not be reviewed. See Shreor v. Livingston Co., 9 Mo. 195; Ex parte Shagg, 19 Mo. 399. But in these cases the court assigns no reasons for its conclusion, and the opinions are very brief amounting to little more than an announcement of their conclusion. These cases can have very little weight or influence out of Missouri, where they are binding authority. So in New York the same has been held in two cases for special reasons. See 13 Wend. 130 and People ex rel. v. Insurance Co. But in these cases the court regards the proceeding as not the regular and proper proceedings in a mandamus case, and that the plaintiff had waived rights even in the last case, as it was presented ; and it was held, that under the circumstances the application for the alternative writ of mandamus as addressed to the discretion of the court, and the decision was therefore not reviewable. None of these cases, it seems to me, can properly influence our decision in this case, because of the diversity of our law’ from the law elsewhere. I conclude therefore, that we clearly have jurisdiction to decide this case and ought not to dismiss the writ of error as improvidently awarded.
Tbe merits of this case liave not been argued by the counsel for tho defendant in error. We will examine its merits by considering in succession each ground of error assigned by the plaintiff in his petiti >n for a writ of error. The first ground of error assigned is, that tho County Court oi'Wetzel county had no jurisdiction in the matter of directing a vote on the question of the re-location of the county-seat, because by the special act of the general assembly of Virginia creating Wetzel county (Acts of 1846, ch. 65, § 17,) it is provided, that the permanent seat of the county shall be atNew Martinsville; and therefore the whole proceedings in the County Court of Wetzel in reference to the removal of the county-seat were illegal and unauthorized. The counsel for the plaintiff in error claim, that the county-seat of Wetzel county and those of a few other counties, where a like provision were made, when the counties were formed, can be relocated, if at all, only by an act of the legislature ; that tho legislature has claimed and exercised this power, but that they have not considered, as their action shows, that tho county-seats of these few counties could be changed by a vote of the people under the general law ; that the first law of this State was passed in 1883, (Acts of 1883, p. 69, § 8); that Calhoun county was established by the Acts of 1855-6, ch. 108, § 2, with -a.permanent county-seat as in the case of Wetzel county, and was obviously not regarded by the legislature as subject to the general law, whereby county-seats could be changed by a vote of the people; for four years after the passage of this general law an act was passed changing the county-seat of Calhoun county. (See Acts of 1887, page 3.)
The case of Hamilton v. Michels, 7 Ohio St. 79, is referred to as showing what constitutes a county and the object of its creation, that it is a local sub-division of a State created by the sovereign power of the State, of its own will, without the solicitation, consent or concurrent action of the people who Inhabit it, but superimposed on them by a sovereign and paramount authority; that it is created almost exclusively with a view to the policy of the State at large, for the purpose of political organization and civil administration in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and. especially for the general administration of jus'.-'ce. This being the definition of a county given by the counsel for the plaintiff, they argue that this unusual provision in the act creating the county of WetzJ, that its permanent county-seat is fixed, must be regarded as fixing it for the convenience of the State in the administration of justice and of the government, and there can be no change of the location of the county-seat except by the power which fixed it. This is unquestionably true ; and the question for our consideration in this case is : Has it not been changed by the power, which created it, or what is the same thing in effect, under its direction and in the manner provided by it ? It seems to me, that the legislature has prescribed a mode, by which the county-seat of Wetzel or that of any other county in the State may be changed by a vote of the people. Thus the 15th sec. of ch. 39 of Warth’s Amended Code provides : “Whenever the citizens of any county desire the re-location of their county-seat they may file a petition, &c.” The section then prescribes the details of the manner, in which a county-seat may be re-located by a vote of the people of a county.
This language is as broad and comprehensive, as it can well be, and in terms applies to all counties. I can see no reason, whv it. should not apply to Wetzel as well as to any other county. The fact, that in the act of 1816, which established Wetzel county, instead of simply saying, that the county-seat should be at New Martinsville the act said the permanent county-seat should be there, it seems to me, can have no effect upon the meaning of this 15th sec. of ch. 39 of the amended code of W. Ya. The truth would seem to be, that this declaration of the legislature of Virginia in 1846, that New Martinsville should be the permanent county-seat of Wetzel, never did have anjr meaning or effect. The ordinary mode of fixing a county-seat in an act upon organizing a county would have fixed the seat of the county then as permanently, as the organizing of Wetzel county did. In neither case could the county-seat be changed except by or under the authority of an act of the legislature, and by such an act or under such authority it could be just as well changed, when the legislature, which formed the county, declared that a designated place should be the permanent county-seat-, as when it did not. In either case the legislature might have changed the county-seat by a special act designating, where the new county-seat should be, or by a general act authorizing it to be changed by a vote of the people. It is perfectly true, as claimed by the plaintiff’s counsel, that the county-seat of Wetzel was located by the legislature at New Martinsville without the consent or concurrent act of the people of Wetzel; and, because this was so, there can be no pretence, that the people of Wetzel, one or all of them, can make objection to the re-location of the county-seat made in any manner the legislature may choose to adopt. There is no contract or pretence of contract with them, that the county-seat shall be permanently located at New Martinsville; nor can one legislature by declaring it shall be prevent another from changing it in any manner it may choose. The legislature has, it seems to me, very wisely concluded, that the voters of a county can more wisely determine, where the county-seat of any county should be with reference to the convenience of the people of the State including themselves in the administration of the government and of justice, than can the legislature, who necessarily are in a larger degree ignorant of the location in a particular county and of other facts, which should have influence in the location of a county-seat. Hence the legislature has very wisely left it to the voters of each county in a prescribed manner to re-locate a county-seat. There is therefore nothing in the first assignment of error, for which the order of the Circuit Court complained of should be reversed.
The second assignment of error is, that the County Court of Wetzel county did not ascertain, that the petition had been signed by the requisite number of legal voters in the manner prescribed by law, that is, by allowing one vote for every six persons in the county as shown by the last census. There is, it seems to me, nothing in this assignment of error. The number of- voters required to sign this petition is by 15th sec. of ch. 39 of Warth’s Amended Code, p. 255, fixed at one-fifth at least of all the legal voters of the county, to be estimated by allowing one vote for every six persons in the county as shown by the last census. There were according to the petition presented to the Circuit Court asking for the -writ of certiorari 803 voters, signers of the petition to the County Court, that is, one-fifth' of 4,015 ; and if the population of Wetzel county he estimated as six times this number, it amounted to 24,090. That this is largely more than the population of Wetzel county by the census of 1880, this Court as well as the Circuit Courttakes judicial notice. It follows then, that 803 voters, who signed the petition to the County Court of Wetzel in reference to the re-location of its county-seat, were largely more than the number required by the law; and it is entirely immaterial, how the County Court ascertained this tobe so, as they as well as the Circuit Court and this Court can take judicial notice of the population of Wetzel county at the last eensus and can then in the mode prescribed by this law ascertain, whether the actual signatures to the petition were enough. In this case the number of petitioners greatly exceeded the number required by the law.
The third assignment of error is, that the clerk of the County Court of Wetzel did not make out and certify in the manner prescribed by law and deliver to the sheriff to be posted copies of said order of election but delivered instead printed copies, no part of which, not even the signature of the said clerk, was in writing, and such copies and no other were posted by the sheriff. The 15th sec. of ch. 39 of Amended Code, page 255-6 of Warth’s Amended Code, provides: “The clerk of said court shall upon the adjournment of the court make out and certify as many copies of the order (the one requiring a vote to be taken on the re-location of the county-seat) as there are voting places in the county and deliver the same to the sheriff thereof, whose duty it shall be to post one of said copies or cause it to be done at each of said places of voting at least forty days before the day of such election.” The usual mode, in which this provision of the law is executed, is for the clerk to make out a copy of this order and certify the same as a copy, and then for the sheriff to cause to be posted a printed copy of this certified copy of this order including the certificate of the clerk at the foot of it at least forty days before the day of such election. From the statements in the petition for a certiorari to the Circuit Court of Wetzel I presume, that this was the mode, in which this portion of the law was executed in this case. If so, there was no error committed in its execution; for, while it would not appear to he a literal compliance with the law above quoted, it is obviously a substantial compliance; and indeed the voters of the county would be much better notified of the question, which they were asked to vote upon at the next ■election, by such printed copies including the printing of the signature of the. clerk, than they would be by written copies certified and signed by the clerk, as the printed copies would be much more easily read than written copies. There was therefore nothing in this third assignment of error to justify the Circuit Court in awarding a writ of certiorari, or that would justify this Court in reversing the order of Circuit Court refusing to award a writ of certiorari.
There'was one ground, upon which the petition to the Oir-Ocuit Court for a writ of certiorari was based, which was not assigned as a ground of error in the petition to this Court for a writ of error, and which appears to have been abandoned by the counsel for the plaintiff. I.t was, “that said petition to the County Court was not presented to or the order of election made by said County Court at a regular sesl sion duly named and appointed. The law (15 sec. of ch. 39 of the Amended Code) provides, that said petition shall be presented, and order made, “at a regular session of the County Court of such county.” It does not require such session to be named or appointed for such purpose.
The only other assignment of error is, that the commissioners of the election did not make out, sign and return separate certificates of the result of this election at any of the precincts of the county. The statute (ch. 39, § 15 of Am. Code) provides, “That the commissioners of election of each place of voting shall make out and sign a separate certificate of the result of said vote and deliver the same to the clerk of the County Court, and said clerk shall lay the same before the County Court at its next session thereafter.” This, the petition to the Circuit Court of Wetzel for a certiorari says, the commissioners of election at every voting place utterly failed to do. The Circuit Court bearing in mind, that a writ of certiorari is a discretionary writ and not a writ of right, arid that it should be refused, unless substantial justice and equity requires it to be granted, and that all merely technical objections to the regularity of the proceedings of the inferior court should be disregarded, doubtless held this objection to be like all the others, which had been presented in this petition, merely technical, and this law requiring the commissioners of election at each place of voting to make out, sign and return to the Oounty Court clerk a separate certificate of the result of said vote on the re-location of the county-seat, as merely directory and intended simply for the convenience of the Oounty Court, refused to grant the writ of certiorari.
I must confess, that, when I first read this record, I was of that opinion; and I was confirmed in it, when after examining the other grounds of error in the proceedings of the Oounty Court alleged by the plaintiff, I found them to be frivolous, and the petition for a writ of certiorari so worded as to be well calculated to mislead the court. It is probably true, that these commissioners did not wholly neglect to certify the result of the vote on the re-location of the county-seat at each of their several places of voting, but that they included the statement of this result in the same certificate with their statement of the result of the voting for the various officers, who were elected at the same election. The petition does not state this, but it does not say the contrary, nor does it say anything to induce us to think the contrary. The Circuit Court in view of the character of this petition doubtless assumed, that this was the fact; and regarding this as a substantial compliance with the law, it refused to award a writ of certiorari. The Gircuit Court doubtless regarded the failure to make out a statement of the result at each precinct of the vote on the re-location of the county-seat in a separate certificate as not a failure to perform their duty substantially, provided a statement was made and certified by them in the certificate of the result of the voting at each precinct for different officers then voted for. This, it seemed to me at first, was true; but a more careful examination of our statute-law has caused me to change my opinion on this point.
The voting on the re-location of a county-seat and the election of a large number of State and county officers under the law occur at the same time at a general election, and are conducted by the same officers, and each voter uses one ballot, on which are the names of the several persons for whom he votes, and the office which each is to fill, and also the words “for re-location” or “against re-location.” But there is an essential difference under our present law as to the time and manner, in which the result of election of officers and the result of the vote on the re-location of a county-seat is ascertained and declared.'
The mode in reference to the election of officers is to be found in ch. 3, secs. 20 and 21, and is as-follows: The commissioners at each precinct make out at the close of the Yoting and sign two certificates, the form of which is given,, stating how many votes at that precinct were given for each candidate for each office. The ballots are all sealed up by the commissoners, who or one of whom within four days-thereafter deliver the ballots-so sealed up, one set of poll-books- and one of their certificates to the clerk of the County Court and the other certificate and set of poll-books to the clerk of the Circuit Court. On the 5th day after the election the commissioners of the County Court meet in special session at the-court-house, and these clerks lay before them the bailots, poll-books and certificates which have been left with them by the different commissioners at the different precincts, and they may require the attendance before them of these precinct commissioners of election or any other person present at the election at any precinct and examine them on oath and make all proper orders necessary to procure correct returns and ascertain the true result of such election. And they may upon the demand of any candidate open and examine any of the sealed packages of ballots and re-count the same, after which they must re-seal them up in another en-Yelope. When they have made their certificate as to each of the"officers elected in a prescribed form, they are required to deposit the sealed packages of ballots in the County Court clerk’s office, and he is required to carefully preserv e them and the poll-books for one year, and, if there be no contest for any office, they are then to be destroyed without opening the sealed packages ; and if there be such contest they are to be destroyed at the close of the contest.
The mode of proceeding, when at such election there has been a vote taken on the re-location of the county-seat, is prescribed in sec. 15, ch. 39 of Warth’s Amended Code, pp. 255-6. The vote is taken, superintended, conducted and returned in the same manner as in the election of officers had at the same time; but the commissioners of election at each place of voting are required -to make out and sign a separate certificate of the result of the vote on the re-location of the county-seat and are not to put the result of the vote on this question in the other certificate made out by them as to the result in their precinct of the voting for the several officers. This separate certificate of the result of the vote on this question of the re-location of the county-seat these commissioners at each precinct are required to deliver to the clerk of the County Court within four days after the election, and he is required to lay the same before the County Court at the next session, and they are thereupon required to ascertain and declare the result of said vote and enter the same of record.
The question is, whether this provision, that the certificate of the result of the vote on the re-location of the county-seat made out and signed by the commissioners at each precinct or voting place shall be a separate certificate and not be inserted in the certificate as to the result of the vote for each officer, is mandatory or simply discretionary. It is obvious, that these certificates might be tampered with and altered, after they had been signed by the commissioners at the different precincts, and, to prevent this, the legislature has made several provisions, which, so far as the 'certificates of the commissioners at the several voting places are concerned, will render it difficult to alter them, after they are signed, and, if any alteration be made, easy to detect the fraud and prevent it from being successful. In the first place in the election of officers the certificate is made out in duplicate, one of which is delivered to the clerk of the County Court-, and the other to the clerk of the Circuit Court, who each keep them but for a few days, when they present them to the commissioners of the County Court, who are to meet-in five days (Sundays excepted) to determine the result of the election. The difficulty of successfully altering these certificates is much increased by the fact, that they are in duplicate and that one of them is placed in the custody of each of two officers, the clerk of the County Court and the clerk of the Circuit Court, and secondly, bjr the very short time, in which such alterations must be made, if the' fraud is attempted. In the next place, to increase still further the difficulty of altering these certificates of the votes cast for officers, after they have been signed, the commissioners of election are required to write out in words the number of votes cast for each officer, it being much more difficult to change a written word than a figure. But if despite these precaution any of these certificates should be altered, after it was signed by the precinct commissioners, the law has made provisions for detecting and defeating the fraud. The precinct commissioners are required to seal up in an envelope all the original ballots cast at the precinct and write their names across the place or places where it is sealed, &c., so as to increase the difficulty of successfully opening these envelopes and tampering with the ballots; and then they or one of them is to deliver these sealed packages in person in four days (Sundays excepted) after the election to the clerk of the County Court; and within five days after the election (Sundays excepted) he is to deliver them to the County Court assembled to declare the result of the election of officers. And at the request of any candidate for office, if any fraudulent tampering with the certificates be suspected, the commissioners of the County Court are required to open the sealed envelopes containing the ballots and re-count them, when such fraud will probably be detected. Still further to facilitate such detection,should the ballots too despite all this precaution have been tampered with, the County Court is authorized to examine on oath the commissioners of election or any other person present at the election. When further it is borne in mind, that all this is done within five days after the election, it would seem, that the legislature has been very anxious to defeat attempted frauds whether by altering the certificates or otherwise in the election of officers.
The legislature has made less provisions to prevent the alteration of the certificate of the precinct commissioners of the result of the voting on the re-location of a county-seat; but this renders it the more incumbent on the courts to see, that no provision tending to prevent such frauds shall be neglected or dispensed with by the commissioners at the different precincts.
In this case the law does not require the number of votes cast for and against the re-location of the county-seat to be written out in words by the commissioners in their certificates, nor does it require duplicate certificates to be made out and one delivered to the clerk of the County Court and one to the clerk of the Circuit Court. Almost the only precaution against a fraudulent alteration of the certificate is that, requiring the precinct commissioners to deliver their certificates of the result of such vote within four days after the election (Sundays excepted) to the clerk of the County Court in pierson, and requiring him to keep it in his custody and care till the next session of the County Court, when he shall produce it before the court, who shall ascertain and declare the result of the vote and enter it of record. It will be seen at once, that the liability to a fraudulent alteration of the certificate of the precinct commissioners on this question would be much increased, if it should not remain all the time in the custody of the clerk'of the County Court from the time it may be delivered to him, till the time it be laid by him before the County Court at its next session. If then the precinct commissioners were allowed to insert the result of the vote on the re-location of the county-seat in the certificate of the result of the vote on the election of officers and make out no separate certificate, this certificate would under the law be delivered by the clerk to the County Court on the fifth day after the election (Sundays excepted) and would remain in their charge, till they had declared the result of the vote on the election of all the officers voted for, which in some cases might be more than a week, and then this certificate would be returned to the clerk of the County Court. It is obvious, that there wnuld be much more probability of a fraudulent alteration while it was thus out of the hands of the clerk than while in bis care and custody.
But it may be said, that, if the certificate of the precinct commissioners in this case were not made out separately, but the result of the vote was inserted in the certificate of the result of the vote for officers in the manner required by law in such certificate, that is, by writing out the number of votes cast for and against re-location in words instead of figures and by the making out of duplicate certificates, the risk of fraudulent alteration of the certificate would be less, than if thelaw had been complied with literally by the making out of a separate certificate. Perhaps this may be so, but if we dispense with the making out of a separate certificate, we can not without usurping legislative powers require, that there shall be two certificates of the vote on re-location, or require the number of votes for and against to be written out in words, and the insertion of the vote on re-location in figures in the certificate of the result of the vote for officers returned to the clerk of the county court would suffice.
Again it may be said, that the ascertainment of the true result of the vote on re-location, to be made by the County Court at its next session, would prevent any injury resulting from such attempted fraud more effectually, for the reason that the investigation of this question by the County Court in reference to the election of officers had been made five days after the election. If this were so, I do not see how it can effect the question under investigation; but it does not seem to me to be so. It is true in ascertaining the result of the vote on the re-location of the county-seat the County Court could exercise all the powers of any other court in making any investigation with possibly the exception of opening the sealed ballots, which the statute-law seems to forbid, except in case of contested election, though it may be too literal a construction of the law to say, that they could not be opened by the County Court in detérmining the question, whether the county-seat had been by the vote of the qualified voters relocated. But be this as it may, the opening of them by the County Court at its next session, perhaps 60 days after the election, and after they may have been once before oi>ened by the County Court five days after the election on the demand of some candidate, would certainly be a far less efficient mode of detecting such a fraud, than it was, when they were first opened. For the very lapse of time itself ■would greatly increase the danger of fraud; and as the County Court could in their special session five days after election summon witnesses and examine them on oath, I do not see, that their investigation then t would not he even more efficient in defeating fraud than an investigation perhaps, two months afterwards.
I am for these reasons of opinion, that we can not regard the law requiring a separate certificate of the precinct commissioners of the result of the voting at their precinct on the re-location of the county-seat as directory, but must regard it as mandatory. Of course, if they had failed to make out any certificate, they would probably have violated the law in a most important matter, and the County Court could not decide, that the county-seat was re-located at such an election. As it was expressly alleged in the petition to the Circuit Court for a writ of certiorari to bring before that court the proceedings of the County Court, in which said court declared, that the county-seat of said county was removed, that the commissioners of election at the several precincts did not make out, sign and return separate certificates of the result of the election on this question, as required by law, and as this petition was sworn to, in this preliminary stage it must be treated as true. The Circuit Court ought therefore to have awarded the writ of certiorari prayed for in the petition; and after the return of the County Court to this writ and proper investigation have decided the case.
For these reasons the order of the circuit court of Wetzel; made Feby. 17th, 1885, must be reversed, set aside and annulled; and this Court proceeding to render such judgment, as should have been rendered, doth remand this cause to the Circuit Court of Wetzel with, directions to award the writ of certiorari prayed for by the plaintiffs in their petition, and further to proceed with this case according to the principles laid down in this opinion, and further according to the principles governing courts of common-law. No costs are awarded the plaintiffs in this case, as, when the order complained of was entered by the Circuit Court, no persons.other than, the plaintiffs were before that court.
Eeveesed. Remanded. | [
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JOHNSON, PRESIDENT,
announced the opinion of the Court:
D. S. Cox on the 2d day of March, 1882, obtained an injunction against the defendant, Andrew Douglass. The bill alleges, that the plaintiff is the owner of one hundred and ninety-five acres of land in Ritchie county, describing it by reference to a deed filed as exhibit “A;” that there was a dispute as to the title; and that Andrew Douglass has entered upon the said land and claims title thereto; that plaintiff has instituted in the circuit court of Ritchie county an action of ejectment against said Douglass to settle the title to said land, which, suit is still pending and undetermined; that there is valuable timber growing on said land, which said defendant, Douglass, is cutting and destroying and removing from said land, which, if permitted, will injure the value of said land; and that said Douglass is insolvent. The bill prays an injunction restraining said Douglass from cutting and destroying the timber growing on said land and from removing any that is cut, until the said ejectment suit is heard and determined.
The deed filed as exhibit “A” is in substance as follows: “ This deed made this fourth day of February, 1875, between Elijah Iserman, and Mollie C. Iserman, his wife, of the city of Parkersburg, of the county of 'Wood and State of West Virginia, of the first part, and Mrs. Mary M. Cox of the county of Wood and State of West Virginia, of the second part, witnesseth: That for and in consideration of five hundred and twenty dollars in hand paid, the receipt whereof is hereby acknowledged, said party of the first part cloth grant, bargain and sell and convey unto the said party the following described property to-wit:” Then follows the description, and the concluding part is as follows: “To have and to hold the same unto the said D. S. Cox, heirs and assigns forever with covenants of special warranty, together with all the appurtenances thereto belonging. Witness the following signatures and seals,” and is signed and sealed by the grantees.
The answer of Douglass denies, that Cox is the owner of the land; hut avers, that he is the owner of said land under a grant from the commonwealth of Virginia. It denies the chai’ge, that defendant is cutting and destroying the timber on said land and removing it therefrom, and also denies the charge of insolvency; hut admits that the plaintiff has instituted an ejectment suit against him in the circuit court of Ritchie county to recover said land and try the title thereto, and that the same is still pending and undetermined. He prays, that the injunction may he dissolved, and the hill he dismissed.
In chambers on the 11th day of March, 1882, the judge made an order, which, after stating the title of the cause, and that it was heard on a motion to dissolve the injunction, says: “This motjon came on this day to he heard before me Thomas J. Stealcy, judge of the fourth judicial circuit of West Virginia, in chambers in the town of Ilarrisville, W. Va., upon motion to dissolve the injunction heretofore awarded in this cause, which notice was duly executed upou the plaintiff, the hill of complaint, the answer of Andrew Douglass, which was filed at the hearing of said motion, and exhibits filed with the said hill, and was argued by counsel for complainant and defendant. On consideration whereof, the court is of the opinion, that the said injunction awarded in open court on the 2d day of March, 1882, in this case ought not to he dissolved ; it is therefore adjudged, ordered and decreed, that the motion to dissolve said injunction awarded in this case be and the same is hereby overruled.”
Ought the injunction to have been dissolved ?
An injunction is not granted to restrain a mere trespass to real property, when the bill does not on its face clearly aver good title in the plaintiff; nor even then, as a general rule, where the injury complained of is not destructive of the substance of the inheritance, of that which gives it its chiel value, or is not irreparable, but is susceptible of complete pecuniary compensation, and for which the party may obtain adequate satisfaction in the ordinary course of law McMillan v. Ferrell, 7 W. Va. 223. But a court of equity will enjoin a mere trespass to real property, where good title in the plaintiff is alleged, and it is also alleged in the bill, that the trespasser is insolvent; because in such case the party could have no adequate remedy at law.
The bill in this cause does not allege good title. The plaintiff alleges, that lie is the owner of the land, and vouches as proof thereof a deed, which is made a part of the bill, by which it appears, that the land, on which the alleged trespass was committed, was thereby granted to another person, Mrs. Mary M. Cox. It is true, that it says in the conclusion, “To have and to hold unto said D. S. Cox, heirs and assigns forever;”'but D. S. Cox was not before named in the deed at all, and there certainly was no land by said deed granted to him; with respect to the habendum its office is only to limit the certainty of the estate granted; therefore no person can take an immediate estate by the habendum of a deed, where he is not named in the premises; for it is in the premises of a deed that the thing is really granted. If land be given to J. S. habendum to him and a stranger for a certain estate, this is void as to the stranger, because he was not mentioned in the premises; and when J. S. dies there will be no occupancy; for the grant to the stranger in the habendum was intended as an estate to him and not as a limitation of the estate of J. S. There are however some exceptions to this rule. “ 1. A person not named in the premises may take an estate in remainder by the habendum. 2. If no name whatever be mentioned in the premises then a person named in the habendum may take. * * * In declarations of uses a uso may Re declared in the habendum to a person, to whom no estate is granted in the premises,” 2 Lomax. Dig. 215. It certainly cannot he claimed this is a declaration of _a use; it would rather seem to he a clerical mistake of the scrivener.
This defect in Hie hill was of itself sufficient to require the court to dissolve the injunction, unless the court had jurisdiction hy the mere allegation of the fact, that an ejectment suit hy plaintiff against defendant to secure the land on which the alleged trespass was committed, was pending and undetermined, which question we will presently consider. Besides this detect in the hill the answer denied every allegation oí the hill except the pending of the ejectment suit.
It is a general rule in equity, that an injunction will be dissolved at the hearing of a motion to dissolve on the hill and answer sworn to, if the answer fully, fairly, plainly, distinctly and positively denies the allegations of 'the hill on which the injunction was granted, and if tho material allegations of the hill are not supported hy proof other than the affidavit verifying the truth of. its allegations, Hayzlett v. McMillan, 11 W. Va. 464. Every allegation of the hill in this case was fully, fairly, plainly, distinctly and positively denied hy the answer. The court therefore erred in refusing- to dissolve the injunction, unless the mere fact of the pendency of the ejectment suit gave the court jurisdiction and required it to continue the injunction in force until the determination of said-ejectment suit. It is insisted hy counsel for appellee, that the denial of the plaintiff’s title in-tlie answer does not warrant the dissolution of an injunction agaiust waste, pending an ejectment suit between the parties as to the same land; and he cites Duval v. Waters, 1 Bland’s Chy. 569. That ease I think fully sustains tho position of the counsel. In that case tho chancellor says, 18 Am. Dec. 363:
“The writ of injunction in case of this kind to stay waste, pending a suit to try the right, has, in Maryland, taken the place, and performs the office in all respects, of the ancient writ of est-repement. • It is an injunction not founded on any privity of title or contract, whatever; it is an attendant upon, and an auxiliary of, the action at common law, or the suit in this court, in which the title has been or may he called in question; it follows and shares the fate of that suit, and can not be dissolved upon an answer, in any way denying the plaintiffs title, until that suit has been fully determined in favor ot the defendant. * *' It must however be recollected, that there is no instance of this court’s ever having interfered by air injunction, to prevent a mere trespass not instant, and irreparable, when no suit has been instituted, here or in a court of common law involving the title.”
The chancellor does not claim, that an injunction was ever granted for such cause in England, and cites no authority outside of Maryland to sustain him, that does so, except Shubrick v. Guerard, 2 Des. Eq. 616. He relies on the practice and decision of Maryland, from a very early period. The case in South Carolina supra was much like the one at bar, and Mr. Desaussure, resisted the application, and said: “This is the common case of trespass and a dispute about the title between persons claiming by adverse titles where there is a plain and adequate remedy at law. The defendant is in possession and the actual cultivation of the land; and the right is triable at law. That the complainant has brought a suit to try the title which is now depending; and if the court should interfere in this case to restrain the defendant, from cutting down timber and cultivating the land, till the legal title should be established at law, it might as well do so in every case of trespass and a disputed title, which would be a very injurious interference with the rights of property.”
The reporter, Judge Desaussure, says : “Chancellor Rub ledge granted the injunction in this case restraining the defendant from cutting timber or committing other waste till the trial and determination at law of the rights of the parties. Ho note has been preserved of the grounds of the decree. The defendant afterwards filed a demurer, but is was never argued, the parties having compromised. This is the only case, which is remembered, of the court of equity in this State having ever granted an injunction to restrain a defendant in possession, and claiming by an adverse title, from cutting down timber, or exercising other act of ownership, over his' property, till the trial and determination of the right, at law.” In a note to the report he reviews many English cases, none oí which countenance such a practice, and says at the close of Ms review : “The only case, which I find decided in America on this'point is that of Stevens v. Beekman and others, 1 Johnson Ch. Rep. 318. It was argued before Chancellor Kent of ÍTew York, who refused to grant the injunction against the repetition of the trespass, by defendants who claimed under an adverse title, or had no title. That eminent judge said it was the case of an ordinary trespass on land and cutting down timber, the plaintiff was in possession, and had complete and adequate remedy at law. And if the precedent were once set, it would load to a revolution in practice, and would bo productive of public inconvenience. There was nothing special or peculiar in the case to call for .this particular relief.”
He concluded his able note as follows: “It appears from this review of the decided cases, that the court has relaxed the ancient strictness of the rule, and has granted injunctions to restrain the commsion of trespass in certain specified cases. These are where irreparable damage might be the consequence, if the act continues, or where the trespass has grown into a nuisance; or where the principle of the prevention of a multiplicity of suits among numerous claimants was applicable; or where the persons cutting timber got possession under articles to purchase as in 15 Ves. 138; or whore the trespasser colluded with the tenant. But that without the special circumstances which have induced the relaxation, the rule remains in force, to-wit, that in case of trespass committed by a person who is a mere stranger, or claims under an adverse title, the court will not enjoin but leave the plaintiff to his remedy at law.”
We have searched the Virginia Reports in vain for any countenance given the Maryland decision on this subject; and, so far as I know, the Maryland practice has not obtained in the other States. We can see no reason for an injunction to restrain the cutting of timber on land pending a suit to try the title to the land, unless the defendant is insolvent, or it appears, that if the injunction is not granted, the plaintiff will suffer irreparable damage. Where there is a complete and adequate remedy at law, a court of equity will not interfere. When the party invokes the aid of a court of law to try his title to land, that is no reason in itself, why a court of equity should restrain the defendant from cutting timber on the land pending the suit. It would be very inconvionient to adopt sueli a practice; and in many cases it would work the grossest injustice. A man owns or thinks he owns 1,000 acres of timber-land; he has made a contract to deliver at a certain time 1,000,000 staves to be taken therefrom, he has hired his men and has nine-tenths of the staves manufactured; Ire is worth ten thousand dollars over and above the value o'r the land. Is it not unjust to permit a man, who has not any claim of title to the land, and who has instituted an action of ejectment against him for the recovery of the land, to obtain an injunction to prevent him from cutting any more timber or taking off the land the staves already manufactured, until his suit at law is determined, without any charge in the bill, that the defendant is insolvent, or that the plaintiff would suffer irreparable damage ? The man might be ruined by such an injunction, and the plaintiff not injured by its refusal.
We think the same allegations must accompany the bill to authorize an injunction to restrain the cutting of timber on land, whether there is or is not an action at law ponding between the parties to try the title to the land.
The circuit court of Ritchie erred in refusing to dissolve the injunction. The order refusing to dissolve the injunction is reversed with costs to the appellant; and this Court proceeding to make such order as the judge of the circuit court of Ritchie county should have made upon the hearing of the motion to dissolve said injunction made in chamber, the said injunction is dissolved; and this cause is remanded to the circuit courtof Ritchie county for further proceeding therein to be had.
The Otiieii Judges CoNourred. ■
Order Reversed. Cause RemaNded. | [
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Dent, Judge:
Dewing & Sons appeal from a decree- of the circuit court of Randolph County in a chancery suit wherein they were plaintiffs and Elihu Hutton and others were defendants.
This suit was here before with the shoe on the other foot, and is reported in 40 W. Va. 521, where the origin of the litigation is fully detailed, and it is not necessary to repeat it. At that time Dewing & Sons had a decree against Hutton for the sum of thirty-nine thousand dollars, and Hutton was dissatisfied. This time Hutton has a decree against Dewing & Sons for ninety-eight thousand sixty-four dollars and ninety-eight cents, and the latter are not satisfied. It is claimed that this difference in result alone is so great as to furnish evidence for impeachment of the last conclusion. This, however, is not true in any sense, no more than that the former verdict of a jury set aside can be used to impeach a later verdict confirmed by the trial court. The last verdict is conclusive • of the errors of those set aside that preceded it. And so the last commissioner’s report founded on additional evidence and a fuller and more careful examination of the facts under the direction of this Court as to the law is conclusive as to the erroneous character of the former finding, and it can in no wise be impeached thereby, although the difference between them may be entirely irreconcilable. The last report and decree in accordaance therewith must stand or fall on merit alone without regard to any divergence therein from any former report which has been set aside and annulled. The rules therefore governing the consideration of this cause are the same as though there was no other than the one commissioner’s report had therein, on exceptions to which it now comes to this Court. The rule in such cases is that “The conclusions of a commissioner in chancery on-purely questions of fact referred to him for ascertainment and involving the weight of conflicting testimony should have every reasonable presumption in their favor, and should not be set aside unless it plainly appears they are not ■ warranted by any reasonable view of the evidence.” Haymond v. Camden et als., decided at this term. And especially is this true when the finding has been confirmed by the circuit court. Cann v. Cann, 45 W. Va. 563; Fitzgerald v. Windmill Co., 42 W. Va. 570; Hartman v. Evans, 38 W. Va. 670; Fry v. Feamster, 36 W. Va. 454; Rogers v. O'Neal, 33 W Va. 159; Handy v. Scott, 26 W. Va. 710; Graham v. Graham, 21 W. Va. 698; Boyd v. Gunnison, 14 W. Va. 1. These principles have been so well settled by the repeated decisions of this Court that no longer can they be controverted, and they should be continually kept in mind during the consideration of this cause, that there be no departure therefrom. And as this cause involves the doctrine of agency, there is another principle of equity which must wield peculiar potency in the determination of the various questions raised, and this is that where a principal enjoys the benefits resulting from a reputed agent’s agreements, such principal cannot repudiate the agency in whole or in part without first surrendering all the benefits derived therefrom. He cannot separate and enjoy the profits and repudiate and refuse to bear the expenses and losses. If he declines the burdens with one hand, with the other he must surrender the gains. There can be no rescission in part at his instance, but the rescission must be in toto. As an example a principal cannot send out an agent to buy white oak timber, and when the agent buys all the timber of a certain owner on a certain tract of land, at one dollar per tree, repudiate such contract as to all the timber except the white oak, but if he accepts the contract made by the agent in part, he must accept it as a whole, otherwise the owner is entitled to a rescission, for in fixing the price of the white oak he took into consideration the sale of the residue of the timber. “A ratification in part will not be allowed, but to be effective, there must be a ratification of the whole act, for the law will not allow a principal to claim that which benefits him and repudiate the rest.” 1 Am. & En. En. Law (2 Ed.) 1192, 1193, 1194, and the numerous authorities cited in this greatest and crowning legal work of the departing century. He who accepts a contract entered into on his behalf by an unauthorized agent assumes its burdens as well as its benefits. Owens v. Boyd Land Co., 95 Va. 560; N. Y. Life Ins. Co. v. Taliaferro, Id. 522; Harvey v. Steptoe, 17 Grat. 303; Crump v. U. S. Mining Co., 7 Graf. 369; Story on Agency, 239, 249; Curry v. Hall, 15 W Va. 867; State v. B. & O. R. R. Co,, 15 W Va. 362; Detwiler v. Green, 1 W. Va. 109. In tlie present case Winchester acting as agent for plaintiffs entered into a contract with Hutton at first in writing and afterwards continued by Yerbal agreement and understanding to purchase certain large tracts of timber land at a certain price and fixed compensation, Winchester assisting him in doing so. Dewing & Sons cannot repudiate this arrangement between Hutton and Winchester so long as they continue to hold and enjoy the benefits thereof, and thus avoid any necessary burdens entailed thereby, but if they would escape such burdens- they must forego the benefits, rescind the purchase obtained through the arrangement between Hutton and Winchester and restore the property to Hutton subject fb the moneys and interest thereon invested therein by them. If they decide to retain the properties they must fully carry out the agreements made by Winchester under which they were secured. The plaintiffs’ original instructions to Winchester were, “You know what we want, and how to do the business better than we do, and you may go on and do it to suit yourself, and we will be satisfied. You had better keep it secret.” The latter sentence referring to the agency. Winchester obeyed this injunction to the letter, and went on and did the business to suit himself, and now the plaintiffs are not satisfied except as to benefits and seek to repudiate the responsibilities, which they could not do even though Winchester acted entirely without authority, unless they first surrendered the benefits arising therefrom. Keeping in view these general principles, this controversy determines itself.
The plaintiffs took many exceptions to the commissioner’s report, and have assigned numerous grounds of error, which are so redundant in character it is wholly unnecessary to encumber this opinion with a literal transcript thereof, but all the material points raised will be fully considered.
The first objection is the vacation substitution of commissioner Wilson for commissioner Ward without notice to the plaintiffs. The plaintiffs knew of this- appointment, acquiesced in it, and raised no objection thereto before the case was fully heard and determined adversely to them by this commissioner. Such a technical objection to his appointment comes too late, even had it not been afterwards ratified and confirmed by the court in term. He who fails to speak when he should will not afterwards be heard when he would, for such would be contrary to the orderly administration of justice, and is failing with the court. In the case of Whipkey v. Nicholas, 47 W. Va. 35, (34 S. E. 751), this Court held that “A litigant who without objection joins in the selection of a special judge to hear and determine his ease will not be permitted to raise mere technical objections to the selection and qualification of such judge after he had decided against such litigant.” The same rule applies to the appointment of a commissioner when made by the court either in term or vacation, if the case is fully heard and determined on the merits, a defeated litigant will not be permitted to raise mere technical objections to such appointment, but his acquiescence in such appointment will be held to waive all technicalities. As Judge BRANNON says in Hebb v. Cayton, lately disposed of by this Court, agreeing to disagree, “we decide substance, not technicalities.”
Plaintiffs farther object to the commissioner's report for dis-allowance of certain charges against Hutton in their favor amounting to the sum of six thousand eighty-two dollars and eighty-nine cents. The plaintiffs having discharged Winchester as their agent and seeking to repudiate his transactions in so far as not favorable to themselves refuse to introduce him as a witness. So that as to any matter in controversy which might have been made clear by his evidence, and with regard to which he was not called upon to testify, it must be presumed that his testimony if given would have been adverse to their pretensions. Union Trust Co. v. McClellan, 40 W. Va. 405. A litigant cannot refuse to introduce an important and competent witness as to a disputed point without enduring the legal consequences of such refusal. The plaintiffs failing to introduce Winchester, their agent who kept the account for them against Hutton, the latter was compelled to do so as to certain matters he wished to establish, and also to introduce the books kept by him as containing the account between the parties. These books when introduced were only prima facie evidence of the charges therein contained, and either had the right by better evidence to explain or rebut any item. Their introduction was a matter of necessity on the part of Hutton to prove items not otherwise susceptible of proof, and this does not preclude him from disproving any item concerning which there was other or more satisfactory testimony, nor did it prevent plaintiffs from introducing Winchester to sustain any such disputed item. Books of account are not admissible as evidence of items entered therein when it appears from the testimony of the parties or the nature of the transaction that more satisfactory evidence exists. 9- Am. & En. En. Law (2 Ed.) 929, 934. These item» were disputed by Hutton in his evidence in so far as not allowed by the commissioner. The plaintiffs could have introduced Winchester to sustain or explain them or show to what extent they were'correct. This they failed to do. The commissioner therefore committed no error in finding against them. The testimony of Winchester as to the books being correct was a mere general statement, and he was not interrogated as to the disputed items. The weight and sufficiency of the books as evidence is peculiarly a question of fact for the commissioner, as in a common law court it is a question for the jury. 9 Am. & En. En. Law, (2 Ed.) 936. The plaintiffs object to the allowance of the following -sums on account of what are known as the Cheat purchases, to-wit, eight thousand four hundred and fourteen acres known-as the C. & 0. land, one thousand six hundred acres known as the Butcher Land, two thousand six hundred and eighty-nine acres known as Hutton Land, one thousand four hundred and seventy-six acres known as the Arnold & Yokum Land, three hundred and forty-eight acres known as the Crick-ard & Phillips Land, six hundred and eighty acres known as the Warwick Hutton Land, three hundred and eighty-six acres known as the Barlow Bussell Land, five hundred and sixty-six acres known as J. W. Wamsley Land, nine hundred and one-half acres known as the McGee Land, two hundred and five acre» known as the Curry’s heirs’ Land, and nineteen thousand seven hundred and sixty acres known as the Pardee-Curtin Land, and also eleven thousand eight hundred and eighty acres known as the Bich Pardee Land. All these lands Winchester testifies were included under his agreement with Hutton, and that therefore Hutton is entitled to pa3nnent for the same according to such agreement. The plaintiff insists that Winchester made the purchases himself, and Hutton is not entitled to compensation therefor. Winchester’s evidence concludes the plaintiff on this subject. He was their agent and knows what lands were included in his contract with Hutton, and no one else does. Plaintiffs accepted these lands and now that they are fully advised as to the arrangement between Plutton and Winchester, they desire to retain the lands and repudiate the agreement under which they were secured, and escape fulfilment thereof. This the law will in no wise permit them to do. If they want to escape from and repudiate Winchester’s arrangement with Hutton, they must yield up the benefits accruing to them under such arrangement. Otherwise if they cling to the benefits they must assume the burdens. The plaintiffs imagine that by discharging Winchester as their agent and repudiating his agreement with Hutton that they have not only destroyed his competency as a witness, against them, but that they have thereby relieved themselves from performing his contracts made in the purchase of the lands, the title to which they still retain. This is only imagination and not law. Dor by accepting and retaining the lands they are bound to carry out all contracts made by Winchester in procuring the same, and he is the best evidence as to what those contracts were and what lands were covered by them. Hot only so, but the law requires them to introduce him as a witness as to the agreement with Hutton in the controversy between them as to the lands included thereunder, or admit that his evidence if introduced would sustain Hutton’s pretensions. They fail to introduce him, but Hutton does and' he sustains Hutton’s claims as to the agreement. They say we have repudiated both him and his agreement. The law says, before you-'can do this return the benefits you are now enjoying by virtue of such agreement, otherwise carry it. out to the letter. Disgorge or pay up. You can choose either horn of the dilemma. But you must choose one or the other. They further claim a deficiency of some of these tracts of land, to-wit: Rich, Pardee Land, and the Butcher School Lands. A great part of the former land they -claim to have been lost while a suit is pending affecting a portion of the latter land. There is nothing to show that Hutton was to warrant the title to these lands. On account of the former, a large deduction was made in the compensation by arrangement between Winchester and Hutton and a satisfactory compensation agreed upon, and the plaintiffs accepted and still retain the deeds for the same. As before said, the plaintiffs cannot repudiate these contracts in part, but if they repudiate they must do so as a whole. The commissioner seems to have examined all these matters carefully and arrived at an apparently just conclusion, and the court is unable to say that any of his findings are manifestly contrary to the evidence. He closely follows the testimony of Winchester, and the plain tiffs Raye manifested, no disposition to surrender any of their purchases, but cling to them with an unrelenting grasp.
Objection is made to the munificence of Hutton’s compensation. The plaintiffs purchased all these lands at the low'rate of two dollars per acre, and had Hutton been of sufficient ability to purchase and hold them himself it is altogether probable that the plaintiffs would have not been able to have secured them at any such price. So it is only Hutton’s pecuniary condition that caused him to secure the lands for plaintiffs at such a.reduced compensation. There is no doubt but if they would agree to cancel their purchases and surrender the lands to Hutton, he would be willing to restore them their purchase money with interest and costs. This under the law they have the right to do if Winchester exceeded his authority, but they must do so in whole and not in part. Sillman v. Gillespie, decided at this term. The two questions raised with regard to the Gauley purchase, to-wit, two hundred dollars on the Williams land and the Craig land are matters governed bjr the evidence. As to the two hundred dollars the commissioner follows the evidence of the plaintiffs’ witness Mills. The plaintiffs claim the Craig land was sold for taxes. Hutton denies this, and says if it was and became irredeemable, it is the plaintiffs’ fault. The commissioner’s finding is in favor of Hutton. The court is unable to say that this finding is wrong, from the evidence.
Plaintiffs also call attention to the fact that from the Gauley purchase of fifty-three thousand acres they have lost thirteen thousand acres to J. H. Camden, and yet they are required 16 pay Hutton six thousand five hundred dollars compensation for securing the thirteen thousand acres thus lost, and if they fail to recover the amount thereof from Camden, it will be lost to them. The result in the other case establishes conclusively that they secured title to this land to hold it in trust for Camden, and then wrongfully set up adverse claim to it. The litigation was of their own making and the costs thereof the legitimate result which they can place on no one else. If they had permitted their agent to have transferred this land direct to Camden they would have avoided all litigation with regard to and all liability to Hutton for his share of the profit arising there’ from. Hutton in such an event would have had to look to Camden for his compensation, if any. As it now stands he has no one to look to but plaintiffs, and plaintiffs must look to Camden under his contract with Winchester. This is a matter that was not brought to the attention of the lower court or commissioner, and is therefore improperly presented to this Court at this time and in this way. It is without jurisdiction to consider the same. Hutton's profits in this Gauley matter appear to nave greatly dwindled. In the former ease of Hutton v. Dewing, 42 W. Va. 691, it is conceded to have been at least twenty-five thousand dollars, a sum that Judge BRANNON considered magnificent and with which Hutton should have been satisfied instead of wanting to be admitted to partnership in any further profits from such lands, the value of which appeared then to be highly speculative and improbable although Dewing & Sons insisted on taking all risk thereof entirely alone. They at least did not ‘indicate that they were willing to surrender the lands and receive their investment, interest and expenses. If Hutton's profits are reduced down to what they claim they should be he would receive less than ten thousand dollars, while their attitude in the other suit was that he would receive nearly thrice this sum. Then they were casting him overboard as a partner with his fair snare of profits. Now they are trying to get from him these profits, and have so far succeeded very well, and if they could manage to have their way m this suit, they would not only have been able through the management of their efficient agent Winchester to deprive him of all profit, but of all his property besides, and still bring him out in their debt to a magnificent amount. If such could possibly be the result, it would have been far better for him never to have heard of the plaintiffs. He would be as a lamb shorn in the bleak winter months, with a body untempered to the cold north winds.
The last and most important question for the consideration of this Court is the Arbogast store. The commissioner reports that exclusive of the Arbogast business Dewing & Sons would owe Hutton eleven thousand four hundred and twenty dollars and forty-seven cents which with five thousand two hundred and ninety dollars and seventy-six cents interest thereon would amount January 1, 1898, to the sum of sixteen thousand seven hundred and eleven dollars and twenty-three cents, all the residue of his compensation and profits having been absorbed by Winchester in the Arbogast business. The commissioner found that a partnership existed between Dewing & Sons and Hutton as to this business. That to make Dewing & Sons equal to Hut ton in the loss incurred thereby they should pay him four thousand two hundred and forty-one dollars and sixteen cents, which added to the thirty-three thousand one hundred and fifteen dollars and ninety-four cents, ascertained to be due Hutton on account of the Cheat and Gauley transactions, and augmented by twenty thousand five hundred and seventy-seven dollars and seventy-one cents interest thereon from the time the same should have been paid, aggregate the sum of fifty-seven thousand nine hundred and thirty-four dollars and eighty-one cents which Hutton should recover in this suit. He further finds that if the Arbogast business is Hutton’s that Hutton owes Dewing & Sons on account thereof the sum of twenty-one thousand six hundred and ninetj^-five dollars and forty-seven cents which would reduce Hutton’s recovery to eleven thousand four hundred and twenty dollars and forty-seven cents with its interest as aforesaid. But if the Arbogast business belongs to Dewing & Sons he finds that on account thereof they will owe Hutton thirty thousand one hundred and seventy-seven dollars and eighty cents, which added to his unpaid profits and commission would make his recovery sixty-three thousand two hundred and thirty-three dollars and seventy-four cents, which with interest thereon to January 21, 1898, to-wit, thirty-four thousand eight hundred and thirty-one dollars and twenty-four, cents, would aggregate the sum of ninety-eight thousand sixty-four dallors and ninety-eight cents. On this question the circuit court overruled the commissioner and held that the Arbogast business belonged to Dewing & Sons and decreed against them accordingly. This Court is compelled to decide between the commissioner and the circuit court, and if from any reasonable view of the evidence the commissioner’s finding was right, the circuit court erred, and the decree must be reversed. But if the commissioner’s finding was contrary to the plain preponderance of evidence, the circuit court committed no error in setting, it aside. Viewing the evidence as a whole, and in the absence of Winhes-ter’s evidence, which bears most severely against the plaintiffs, this Arbogast business has none of the elements of a partnership business, for it was wholly under the sole control and management of Winchester. It is true that both Dewing & Sons and Hutton furnished funds and property willing or unwilling for this business, but there was no agreement or understanding between them or with their agent Winchester that they were'to share in its profits and losses. While apparently it might be an equitable adjustment of the matter to hold it a partnership, the commissioner was not justified by a preponderance of the evidence in finding it to be such. Nor could the commissioner have found it to be Hutton’s property. It was never in his possession, and he exercised no control thereover or management thereof, either in person or by agent. In short, he had no indicia of ownership whatever, and Winchester holding and controlling it through Arbogast denied him any such ownership. The plaintiffs insist, however, that because they induced him to execute to them a deed of trust securing their indebtedness including this business, that he is by this solemn act under seal estopped from denying the truth with regard thereto. If such deed could thus operate as an estoppel against him, this Court from the evidence would be justified in holding that the same was obtained from him by the plaintiffs b3 deceitful and fraudulent representations for the purpose of thus unjustly setting it up as an estoppel against him. For as shown in evidence the plaintiffs obtained this deed from Hutton by representing to him +hat their sole object in getting it was for the purpose of ridding themselves of their agent Winchester, who was running such business disastrously, especially as it now turns out that Hutton did not owe the plaintiffs twenty-five thousand dollars or any other sum at the time of the execution of such deed independent of such Arbogast business. This deed, however, operates as no estoppel upon Hutton except in so far as it prevents him from afterwards claiming that he did not thereby part with any possible interest he might have in the Arbogast business. The doctrine of estoppel is that a grantor in any deed cannot deny his title thereby conveyed and set up any other title to the injury of the grantee, but it does not prevent him from showing that the title was already in his grantee, and the object of the deed was merely to confirm the grantee’s title, for thereby no injury can occur to such grantee. To confirm a title when doubt may attach to it does not injure it. In this case if Dewing & Sons were the true owners of the property a conveyance thereof by Hutton for their benefit could not possibly injure them, although Hutton had no interest therein,' and he could not be estopped from saying that he had no interest therein, for the reason that they had already the whole title thereto, and he had only a possibly contingent interest therein whieh he was willing on their importunity to surrender to them. The title to this property as heretofore determined by this Court on the former appeal in this case, 40 W. Va. 533, was “in abeyance apparently in Arbogast under the control of Winchester as the agent of the plaintiffs,” and was so to remain as shown by Winchester’s letter to the plaintiffs March 15, 1888, until a final settlement between plaintiffs and Hutton, and if the amount due Hutton was sufficient to cover the same the business was to be his, but on the contrary if there was nothing due him the business was to be plaintiffs. Under this arrangement of Winchester’s communicated as a special report to his principals, and of which there is no positive evidence showing that Hutton knew of or acceded thereto, plaintiffs and Hutton appeared to be partners in adverse contingencies. In one event it was to be Hutton’s business, in another it was to revert entirely to plaintiffs. So when plaintiffs obtained the deed of trust from Hutton they undoubtedly believed and had reason therefor that Hutton had no interest in this business, for he was not to have it until he was out of their debt, and as they were claiming that he owned them twenty-five thousand dollars, his contingent right of property had ceased' to exist, and as they represented to him the only effect of his deed would be to take away Winchester’s excuse for continuing to hold such property by reason of Hutton’s non-existent contingent interest therein. This is further confirmed from the fact that plaintiffs did not consider the Arbogast business a sufficient security for their indebtedness, which it would nave been had Hutton still an existent contingent interest under Winchester’s arrangement, hut required him to include in such trust deed a large amount of other property. So this deed, and the same may be said of the Arbogast deed, is plainly opposed to plaintiff’s pretensions, that Hutton was the true owner of the Arbogast business. In addition we have the positive refusal of Winchester to surrender possession of the property by virtue of such deeds on the grounds that Hutton had no interest therein and no right to dispose of the same to a trustee or otherwise for the benefit of plaintiffs or anyone else, and he afterwards executed a deed as trustee disposing of the property to which all parties were compelled to assent, and-which the court in its former decision upheld. As before said, there is no positive proof that Hutton knew of or assented to the arrangement communicated by Winchester to his princi pals, the plaintiffs, that he, Hutton, was to have the Arbogast business provided on a settlement with plaintiffs there was enough money due from them to him to cover such business. On this point Winchester is a necessary witness for plaintiffs, for he could have shown if true that-Hutton knew of and acceded to his arrangement with regard to this business. His silence must be construed unfavorably to plaintiffs. They could and should have made this matter clear, and their hostility to Winchester cannot excuse them, for even if he had testified againsi them on this point, his positive evidence could not have been held any stronger against them than his silence. There is nothing in the case impeaching his integrity as a witness. The fact that plaintiffs have ceased to trust him as their agent does not do so, especially after they have secured through him all that they ex'pected to secure, and they axe engaged in attempting to hold the benefits but repudiate the responsibilities through which he accomplished his labors in their behalf. Through want of Winchester’s testimony the court is left to grope its way in the dark without other guide than the dim light of meagre circumstantial evidence tó a proper conclusion with regard to the Arbogast business. The plaintiffs deny it was their business, the defendant does likewise, while Winchester in his report says that he holds it in trust contingently for both parties. This contingency never happened as to Hutton, hut did happen as to plaintiffs. Winchester was sent to West Virginia as the agent of the plaintiffs under the injunction of secrecy to purchase timber lands for them, with full power and authority to usé all proper legal means to accomplish the purpose of his mission. Being unacquainted with the State and its residents^ he found Hutton actively engaged in dealing in such lands to the full extent of his means. He thereupon immediately secured his services to purchase lands for him alone. Hutton entered earnestly into the work, and directly and indirectly wiih Winchester’s assistance secured something over one hundred thousand acres. Dewings appear on the scene during the progress of the negotiations, and it becomes fully known that they are the power behind Winchester, but the extent of his agency is still kept a secret. In addition to the land purchases Winchester enters into the saw mill and timber business for the plaintiffs then under the theory that plaintiffs are going to embark largely in the timber and lumber business and will need all kinds of stores, including horses, cattle, grain and feed, Winchester starts the Arbogast business with the'funds furnished by plaintiffs to buy lands and carry on their timber operations. He takes into this business all of Hutton’s personal property and even his lands for grain and grazing purposes. He reports the matter to the plaintiffs without Hutton’s knowledge. Hutton so far as the evidence discloses believes and has reason to believe that in this business Winchester is still continuing to act as the agent of the plaintiffs. The plaintiffs fully informed by Winchester that he is carrying on the business for their benefit, as a means of finally paying Hutton, seemingly acquiesce therein, and do not disclose to anyone the extent of Winchester’s agency for them until they have secured the lands they desire to purchase and find that Winchester is carrying on a losing business, then they endeavor to shift all responsibility' therefor onto the shoulders of Hutton. They begin to repudiate Winchester’s agency so far as the Arbogast business is concerned and to seek indirectly to oust him of its possession. They finally accomplish this and place it in the hands of trustee Harding, who proceeds to manage it for the best interests of all parties concerned. They again become dissatisfied with this arrangement, and have the court to take the property out of the hands of Harding, and place it in the hands of a receiver to be at once disposed of and the business closed. • The property in this manner is sacrificed and the small amount of proceeds so used up in costs and expenses that.it fails to pay even the Arbogast creditors, although the plaintiffs had twenty-one thousand six hundred and ninety-five dollars and forty-seven cents and Hutton thirty thousand one hundred and seventy-seven dollars and eighty cents invested therein. In other words it proves a complete loss. Undoubtedly Winchester in starting this business and in investing the plaintiffs’ money therein exceeded his authority, but this was not known to Hutton, and could not be because the extent of Winchester’s authority was a secret known only to Dewing & Sons and himself. Hence Hutton was led to trust him with full confidence in his agency as to such business. Winchester reported by letter to his principals on the 12th day of March, 1888, and informed them just how, so far. as they were concerned, he was holding the Arbogast property as their agent and for their benefit. Yet they make no effort by letter or otherwise until the 16th of November, 1888, over nine months after he notified them, to repudiate these acts as done in their behalf and as their agent when they are led to do so from the fact that they find that Winchester is carrying on a losing business. They do not act as principals should towards a trusted agent who has served them to the best of his skill and judgment, but indirectly try to get rid of him and deprive him of the possession of property he was holding subject to their orders. Had they acted openly, squarely and fairly with him much of the loss afterwards entailed would have been avoided and a much better feeling would have prevailed among the parties to this litigation. In 1 Am. & En. En. Law, (2 Ed.) 1206, the law is well stated to be, “When a delay might mislead the agent or other parties upon notice from the agent informing his principal of the transaction, it is the duty of the latter to repudiate promptly the act, if he wishes to avoid liability.” And further, “A principal should within a reasonable time examine his agent’s report and disavow such acts as are unauthorized, and if he fails to do so his silence will be deemed good evidence of a ratification. So it has been held that a ratification may be inferred where the agent has informed his principal of his acts by letter and received no reply.” Had Dewing & Sons acted promtply with regard to the Arbogast business and notified Hutton and Winchester that they never authorized the same and would have nothing to do therewith, Hutton might have recovered his property before it was lost. In so far as the plaintiffs are concerned Winchester was Hutton’s superior and Hutton had every reason to believe that all his acts were ratified by his principals who continued to furnish him all the money he required. It is well settled that of two parties equally innocent the loss must fall on the one whose act or omission to act occasioned it. McConnell v. Rowland, decided at this term. It would certainly be highly inequitable to visit this loss upon the .sub-agent Hutton, and there is but one other alternative, and that is to permit it to rest on the plain-iffs as principals where the circuit court has placed it.- This is not the irony of fate but of repudiation too late, due to trust and confidence too great. There is not a particle of evidence to show that Hutton when he turned his property over to Winchester did so on the strength of Winchester’s credit alone, but plaintiffs knew from Winchester’s statement that it was done on the credit they had given him by furnishing him with their funds and allowing him to act as their agent. Plaintiffs’ repudiation came too late and with bad grace. Having secured the timber lands they were after and holding on thereto, with firm grasp, they begin by repudiating Winchester’s agency with regard to the Arbogast property but not until Hutton’s property has been hopelessly involved therein. Next they repudiate Winchester as longer their agent or a competent witness in their behalf. Then they repudiate Camden’s contract but fail to sustain themselves. They select out nearly every tract of land included in the Cheat purchases and seek to repudiate the arrangement between Hutton and Winchester with regard thereto. They successfully repudiate Hutton as a partner in the Gauley purchases. They set up defects in title and deficiency in lands, but never once intimate in all their repudiations of the acts of their agent a willingness to have their deeds cancelled, their money refunded, and a restoration in statu quo. It is hard for them to be responsible for the losses arising out of the Arbogast business, but they permitted their agent to start it without protest, acquiesced therein until others were misled thereby, and then proceeded to destroy the business and augment the losses in an unjust though legal manner. Having sowed tares themselves they should reap them, and not Hutton. If they will not forego the benefits arising from their agent’s transactions authorized or not, they must endure the losses occasioned thereby.
The decree is affirmed.
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Woods, Judge:
On May 23, 1884, John C. Flanagan was indicted in the circuit court of Randolph county for the murder of Frances Summerfield, on the — day of December, 1883.
The indictment was in the form prescribed by sec. 1 of ch. 118 of the Acts of the Legislature of 1882. To this indictment the defendant pleaded “Not guilty.” The case was continued until the September term, when it was tried, and the jury on September 27, 1884, returned their verdict finding him guilty of murder in the first degree, and that he be punished by confinement in the penitentiary.
The defendant moved the court to set the verdict aside and grant him a new trial, on the ground that the verdict was contrary to the evidence, which motion the court overruled, and the prisoner excepted, and filed his bill of exceptions, wherein the court certified all the evidence which was before the jury on the trial, and entered a judgment upon the verdict, that the prisoner be confined in the penitentiary, during the period of his natural life. To this judgment the prisoner obtained a writ of error.
Four grounds of error are assigned by the prisoner’s counsel, but all taken together, they amount in substance to this, that the verdict was not supported by the evidence. One of the prisoner’s counsel suggests in his brief, that the indictment was insufficient, because it did not “fully and plainly inform the prisoner of the character and cause of the accusation against him.” This question has been twice before this Court, and in both cases it has been held that an indictment in the form prescribed in sec. 1 of ch. 118 of the Acts of the Legislature of 1882 is sufficient, and we regard this as a settled question. Schnelle v. State, 24 W. Va. 767; Smith v. State, Id. 814.
The only remaining question is that presented by the pris-
oner’s bill of exceptions, viz : Is the evidence sufficient to sustain the verdict ? It is evident upon inspection of the bill of exceptions, that while it purports to certify the facts proved, it amounts to nothing more than a certificate of the evidence given by the several witnesses at the trial. Whatever doubts may have .heretofore existed as to the sufficiency of a bill of exceptions, which certifies all the evidence adduced at the trial instead of the facts proved thereby, it is now well settled that the appellate court, upon a bill of exceptions certifying all the evidence, will review the opinion of the trial-court in granting or refusing a new' trial, on the ground that the verdict is contrary to the evidence, in all cases -where it is not compelled to decide upon the degree of credibility to which the witnesses or any of them, were entitled; but that- in all cases where the appellate court,-in order to grant relief, is required to pass upon the credibility of the witnesses, it will decline to interfere with the verdict which has been approved by the trial-court, for the very good reason, that no certificate of the evidence, of witnesses whose testimony is conflicting, can afford the appellate court an opportunity of judging of the credibility of the witness, equal to that possessed by the court and jury -which tried the cause. The testimony given by two witnesses when reduced to writing, may seem equally truthful, yet the conduct and demeanor of one of these -witnesses before the jury may have convinced both court and jury that the witness was wholly unworthy of credit, while that of the other, may have carried, conviction to the mind of every one who heard his testimony. In all cases therefore where the appellate court is asked to determine the degree of credibility, to -which the witnesses are entitled, it will decline, because it is unable to do so. But in cases where the evidence, and not the facts, is certified, the appellate court will review the opinion of the trial-court granting or refusing a new trial on the ground that the verdict is contrary to the evidence, whenever the court by excluding all the conflicting parol evidence of the exceptor, and by giving full faith and credit to all the evidence of the adverse party can see that the verdict is plainly contrary to, and unsupported by the evidence. Carrington v. Bennett, 1 Leigh 340; Ewing v. Ewing, 2 Leigh 337; Green v. Ashby, 6 Leigh 135; Rohr v. Davis, 9 Leigh 30; Slaughter’s Administrator v. Tutt, 12 Leigh 147; Parly v. English, 5 Grat. 141; Vaiden v. Commonwealth, 12 Grat. 717. This question, has been considered by this Court in the cases of Smith v. Townsend, 21 W. Va. 486, Black v. Thomas, Id. 709, and State v. Thompson, Id. 741. In the case last cited this Court laid down the rule in such cases to be, that, “where the evidence and' not the facts is certified in the bill of exceptions, the appellate court will not reverse the judgment unless after rejecting all the conflicting parol evidence of the exceptor, and giving full faith and credit to that of the adverse party the decision of the trial-court still appears to be wrong.” But the appellate court will not interfere with the verdict of the jury, on the ground that it is contrary to the evidence, merely because, if upon the jury it would, upon the evidence, have given a different verdict. To justify the court in granting a new trial, the evidence should bo plainly insufficient to warrant the finding of the jury. Grayson’s Case, 6 Grat. 712, and Vaiden’s Case, supra. Applying these rules to the case under consideration, all evidence introduced by the prisoner, which is in conflict with that offered by the State must be disregarded. If therefore upon giving full faith and credit to all the evidence introduced by the State, and disregarding all evidence in conflict therewith, offered by the prisoner, the same was plainly insufficient to warrant the verdict, the judgment of the circuit court overruling his motion to set the same aside, must be reversed, otherwise, it must be affirmed.
All the evidence introduced by the State against the prisoner was circumstantial; aud it is insisted by the Attorney General in argument, that the circumstances set forth in the bill of exceptions, are not only sufficient, to establish the corpus delicti, but to fix upon the prisoner the crime of murder, and that ho was induced to commit the crime “by a jealous woman who felt outraged by the conduct of her husband.” It may be remarked here, that where a crime has been committed, and the accused has been proved either by direct or circumstantial evidence to be the guilty party, it becomes wholly immaterial to inquire what motive induced him to commit the crime; but when the perpetrator is unknown, and an effort is made to tasten upon the accused the guilt ot the crime, then the motive, which may probably have induced him to commit the crime, may become a matter of the most earnest inquiry, for if the alleged motive be such as usually leads to the commission of such a crime, proof of its existence in the mind of the accused before or at the time of the commission thereof may possibly in some degree, tend to connect the accused with it. But if on the other hand, there is a total absence of all motive to commit such a crime, or if a motive of a wholly different character is shown to have existed in the mind of the accused, these facts would tend to relieve the accused from the charge preferred against him. If one was found murdered, between whom and the accused a deadly feud had previously existed, and the destruction of the deceased would remove a hated and dangerous foe ; or if the deceased was one from whose death great profit might accrue to the accused, and he was discovered under such circumstances, as gave him safe opportunity to commit such crime, a motive therefor might be found in the existence of such feud, or in the hope of such gains, tending to fix upon him strong suspicion of guilt; but if the deceased was the wife, or child, or the intimate friend of the accused, between whom and the accused none but the most friendly relations had ever existed; or if the deceased was one upon the continuance of whose life depended the welfare or happiness of the accused, and he was discovered under similar circumstances, the absence of all motive to destroy, or the existence of the motive to preserve the life of the deceased, would as strongly tend to relieve him from all suspicion of guilt. It-is not to be denied that circumstantial evidence may afford the strongest possible proof of guilt, but in order to do this, the several circumstances relied on to connect the accused with the commission of the offence must be established by full proof, and they must each be of a conclusive nature and tendency, consistent with each other, with the hypothesis of his guilt, and inconsistent with that of his innocence.
In every criminal ease the guilt of the accused must be established by full proof, that is, by evidence which satisfies the mind of the jury to the exclusion of every reasonable doubt, and “neither a mere preponderance of evidence nor any weight of preponderant evidence is sufficient for the purpose unless it generate full belief of the fact to the exclusion of any reasonable doubt.” 1 Stark. Ev. 478; 3 Greenl. Ev. sec. 29. As guides to the safe administration of justice in criminal cases where the guilt of the accused is to be ascertained and determined upon circumstantial evidence, courts and text-writers have laid down the following rules, which meet with our approval. “First. It is essential that all the circumstances from which the conclusion is to be drawn shall be established by full proof, and the party upon whom the burden of proof rests, is bound to prove every single circumstance which is essential to the conclusion, in the same manner and to the same extent as it the whole issue had rested upon the proof of each individual and essential circumstance.”
“Second. All the facts and circumstances, when established by full proof must be consistent with the hypothesis of the guilt of the accused.”
“Third. It is essential that the circumstances should be of a conclusive nature and tendency. Evidence is always indefinite and inconclusive when it raises no more than a limited probability in favor of the fact, as compared with some definite probability against it, whether the precise proposition can, or can not be ascertained. It is, on the other hand, of a conclusive nature and tendency, when the probability in favor of the hypothesis exceeds all limits of an arithmetical or moral nature. Such evidence is always insufficient where assuming all tobe proved which the evidence tends to prove, some other hypothesis may still be true; for it is the actual exclusion of every other hypothesis, which invests mere circumstances with the torce of proof. Whenever therefore the evidence leaves it indifferent which of sveral hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence can not amount to proof, however great the probability may be.”
“Fourth. It is essential that the circumstances should to a moral certainty actually exclude every hypothesis but the one proposed to be proved.” 1 Stark. Ev. 507-513, and 3 Greenl. supra; Commonwealth v. Webster, 5 Cush. 295. From these, another rule results in criminal eases : — that the coincidence of circumstances tending to indicate guilt, however strong and numerous they may he, amounts to nothing unless the corpus delicti, thefact that the crime has been actually perpetrated, be established by full proof, — for so long as the least reasonable doubt exists as to the act, there can be no certainty as to the agent.
It is a fundamental and inflexible rule of legal procedure, of unusual obligation, that no person shall be Required to answer, or be involved in the consequences of guilt,'without satisfactory proof of the corpus delicti, either by direct evidence or by cogent and irresistable grounds of presumption, for where there is no sufficient legal proof of crime, there can be no legal criminality. Rex v. Burdett, 4 B. & Ald. 123, Wills Cir. Ev. ch. 7, sec. 1. This principle requires that upon a charge of homicide even when the body has been found, and although indications of a violent death be manifest, it shall still be fully and satisfactorily proved, that the death was neither occasioned by natural causes, by accident, nor by the act of the deceased himself. 1 Stark Ev. 513.
While the discovery of the -body necessarily affords the best evidence of the fact of the death, and the identity of the individual, and most frequently also, the cause of the death, yet in such cases the corpus delicti can not be said to be proved until it be fully and satisfactorily proved that such death was not caused by natural causes, accident, or by the act of the deceased. Wills Cir. Ev. p. 207; 3 Greenl. Ev. sec. 30; 1 Stark. Ev. 573.
The prisoner at the bar, John C. Flanagan is charged with the wilful murder of Frances Summerfield. This charge divides itself into two principal questions, to be resolved by the proof: First, whether Frances Summerfield came to her death by an act of violence inflicted by any pei’son ; and secondly, if she did, whether that act was committed by the accused? Under the first head we are to enquire and ascertain from the evidence in this record, whether Frances Summer-field is actually dead; and if so, whether the evidence is such, as to exclude beyond reasonable doubt the supposition, that her death was occasioned by accident or suicide, and to show that it must have been the result of an act of violence,
To resolve these questions let us examine the evidence set forth in the prisoner’s bill of exceptions. It will he unnecessary to recite all the evidence offered on the part of the State, and from the rule we have laid down w'e are compelled to reject all the evidence offered by the prisoner which conflicts with that offered hy the State. Giving full faith and credit to the evidence offered by the State, it appears that Frances Sum-merfield, a single woman, who had never been married, before and on the 16th of December 1883, with her illigitimate child then about two years of age, was living on the farm, and in a house belonging to Job Ii. Parsons, on the east side of the top of Rich Mountain, about three hundred yards from the public road, and about one mile from his residence which was on the west side of the top of said mountain; that the house in which she lived was a log house, about sixteen or eighteen feet square, built two or three years before that date, with one door and one window, the door on the north, the window on the south side, and a chimney built of rock at the west end of the house ; that three of the State’s witnesses testified that the chimney was about as high as the house; another that it was not as high as the house, and another, that it was an old chimney to which the house had been built; that on Thursday, December 13, the prisoner had been at the house of the State’s witness David B. Wyatt surveying; that on the next day he again came to his house, and left about one o’clock, p. m. of that day, having borrowed said witness’s gum coat, as it was raining, and wore it to the house of said Parsons where he stayed all night, and all the next day, mending his children’s shoes and feeding his stock, until four of five o’clock in the evening, when he left the house, and sometime after dark on the same evening, went to the house of Frances Summerfield with whom he spent the night, leaving her house about three o’clock on Sunday morning, December 16, 1883, and went in the direction of his home, which by the shortest route was eleven miles distant from her house, and by the route he said he traveled, it was seventeen or eighteen miles; that he reached his home about the first “ chicken crow ” on Monday morning, December 17, 1883, and remained there until he attended the coronor’s inquest on the following Sunday, wheu he was arrested and committed to jail; that Frances Summerfield and her child spent nearly all day of Sunday December 16, 1883, at the house of her cousin Aaron White, who lived about one quarter of a mile from her house, and left late in the evening, but afterwards returned to get fire; that on Monday morning December 17, 1883, said White arose two or three hours before day, looked east and west and it was very light: it was snowing and blowing, could see things all around it was so light; his wife got up and saw the light; it was so bright she could see fences, and bushes, and the bulk of the stable that stood' near the burnt house, but could not see the house on account of a little ridge; his wife thought it a light in the sky; said to her husband, “ Can it be possible that it is Frances Summerfield’s house ?” and he said “no, as they could see no sparks or smoke;” that on Sunday, December 16, the State’s witness Ray, was returning from Pen-dleton county, with the wagon and team of Parson and a load of corn for him; came up the east side of Rich Mountain, and was overtaken by nightfall, just opposite the house of Frances Summerfield, where he turned out and fed his horses, except the one ridden by himself, and another which was ridden away by the witness Lambert who lived' with said Parsons and who had come to meet the load of corn, and he left the wagon in the road; that after Lambert left, Ray rode up to the house of Frances Summerfield, and asked to stay all night with her, and she refused ; that he heard a child crying in the house, and after feeding the stock below the house, returned by the house, he saw a light through the window, he then went to his own house, about a mile north of the residence of Parsons; that early on Monday morning December 17, 1883 he returned for the wagon load of grain left the evening before, by way of Parsons’ house. Saw Lambert there, and traveled the public road to the place he had left the wagon, but saw no tracks except one horse track made by one of his team horses that had come over in the night; considerable snow had fallen in the night; that when the wagon was left on Sunday night the snow was three or four inches deep, and on Monday morning the snow was at least a foot; deep, and tracks made by the loaded team the night before were completely obliterated ; but if tracks had been made after twelve o’clock on Sunday nigut, they would not have been more than “half snowed up,” if made before that they would have been entirely “snowed up.” It further appears that the fact that the house of Frances Summerfield was burnt, was first discovered about eight o’clock on Tuesday morning, December 18, 1883, by Noah Jordan and John Summerfield both of whom were examined on the part of the State. The material part of the testimony of Jordan is, that about eight o’clock in the morning of December 18, 1883, he and John Summerfield started on foot to Collett’s store, and to go a near way, they went by the place where Frances Summerfield’s house had stood. When they got near the place they discovered that it was burnt down, nothing remaining but the naked chimney; that they saw in the ashes of said house the burnt remains of a small person whom they thought was said Frances Summerfield, about three feet from the hearth, her head lying toward the window; that he took hold of a leg and it broke off about the knee; that he saw her head and teeth, and he took hold of her head and it fell to pieces; that the bed stood twelve or fifteen feet from the fireplace in one corner of the house; the lock lay about three feet irom the door when it was shut, and the bolt was out as if it had been locked, and a crow-bar was lying a little back from the middle of the house; the hinges lay immediately below where they had been screwed to the door and the facing, aud they were closed up, as they would be when the door was shut; that witness and John Summerfield were the first persons that were at the spot after the house was burnt, and although there was a deep snow on the ground, there were no tracks or indications that any person had been there before them'; that after leaving the burnt house about two hundred yards, he saw depressions in the snow a little way at a time, but he could not tell, whether they were low places in the ground or the tracks of man or beast. John Summerfield, who was with the witness Jordan when the burnt house was first discovered, testifies that he and Jordan were the first persons at the burnt house; that he saw the remains of a person lying on the right side, left arm extended; the skull was whole except from the eyes up, it seemed to be broken or burned up ; a crow-bar lay about the middle of the house; the lock lay about three feet from the door; that neither witness nor Jordan picked up the lock; did not at that time see the remains of the child ; saw no tracks of anything about the house place; that as he passed up the path towards the top of Rich mountain after they got into the woods, they saw “dents” in the snow; could see them on up to the public road in places only, but could not tell what they were; the snow was nearly knee deep; witness Avas the first to discover the remains of the dead child; they were found where they said the bed had stood; that the fore part of the child’s head seemed to be broken up whilé the hinder part of the head seemed to be whole; and that a pot lid lay near the remains.
Lafayette Elza, another witness for the State testified, that he Avas at the inquest, saw the burnt remains of the woman ; saAv some dry blood in one side of her heart, and in both sides of the child’s heart; there was no flesh upon or about the remains of the woman; all was consumed by fire except the heart, the liver and “ the lights,” some portions of the en-tráis, and what appeared to be some l’oasted flesh about the chest, as though the person had had a breast or breasts; the remains of the child Avere entirely consumed; the front part of its head seemed to have been broken in. He further testified that on December 3, 1883, he helped Job W. Parsons butcher a sheep at Prances Summerfield’s; that Avitness got one quarter of it, and the remainder he salted in a trough and put it on the loft, and placed the crowbar under the side of it to keep it from turning over, and after the house was burned the crowbar lay about two or three feet from where it would have laid had it fallen perpendicularly down; that witness was one of the guards that conducted the prisoner from the inquest to the jail at Beverley, that on the way there, they stopped at the house of David B. Wyatt for prisoner to write a letter home; that while there he heard prisoner say, that “ it he had to suffer, others would have to suffer with him.” Witness did not hear all the conversation, but they were talking on the charge against the prisoner. Another witness heard the prisoner at the inquest say, that he wanted his father and brother Eben sent for; that they would satisfy the jury that he had stayed all night on Sunday night at his brother Eben’s; that prisoner seemed to think he Avas ac cused — and said : “ If this charge caused him trouble others would see trouble with him;” that witness could not tell exactly how it was said, but it was about that way; that every one was trying to find out who knew anything about the burning; the prisoner said a good deal there but witness can not remember all he said. Another witness for the State testified that he was the constable, who summoned the prisoner as a witness to attend the inquest; that prisoner attended the inquest, that after the inquest was over, he took the prisoner to jail atBeverley; that on the way to Beverley prisoner said that “ it seemed his best friends had turned their backs on him ; that some of them had sworn wrong against him; that if he had to suffer innocently, things would be revealed that would make people open their eyes;” that at the time witness summoned the prisoner to attend the inquest as a witness, he had in his pocket a warrant for his arrest, but he did not inform him of it; that he summoned the prisoner as such witness on Friday after the burning.
The State’s witness Lambert, who lived with Job W. Parsons, who had gone out on Sunday evening, December 16, 1883, to meet Ray with the load of corn, further testified on behalf the State, that after he had left Ray and the wagon in the road, as he passed up Rich mountain on his way to said Parsons, while on the east side of the top of the mountain, about three hundred yards from the top, and fifteen or twenty steps below the path that led down to Frances Sum-merfields, he met a man dressed in dark clothes, with a dark overcoat and a medium sized hat, whom he took for the defendant, John C. Flannegan; that he bid him the time of night and the man did the same ; that he had seen the prisoner three times before; that Sunday night was snowy and there was no moon, but the snow gave some light; that he was not well acquainted with the prisoner, knew him when he saw him, that he recognized him by the sound of his voice; witness admitted that at the inquest over the remains, he swore, that from his partial acquaintance with Flanagan, he could not recognize his voice, but when Flanagan came to the inquest, and said “Good morning, gentlemen,” he thought it like the wire he had heard on the mountain that Sunday evening; and that he never took any thought about his voice until he came to the inquest.
Emma Sehmithey, another witness on behalf oí the State, testified that she was living at Job W. Parsons in December, Í883; that on Saturday, December, 15, 1883, the prisoner was at Parson’s mending shoes, and left there that evening, lie was there on the preceding Thursday. He wanted paper. Mrs. Parsons gave him some. She thinks she saw the prisoner there on Sunday afternoon following, in the kitchen, and he went from the kitchen into Mrs. Parson’s room; he did not stay very long as I saw, if he was there at all. Mrs. Parsons was in the room all the afternoon, except that she was out three or four times; that she was also out of her room several times during the forenoon, and she came in one time and sat close to the fire and said she was almost frozen; that witness was in Mrs. Parsons’.room with Miss Knntti and the children reading to them; that there was no fires in the house except in Mrs. Parsons’ room, and in the stove; Mrs. Parsons built a fire in the stove to get dinner and told witness to read to the children; that the witness was then twelve years old. Mrs. Parsons is post-mistress; the mail comes and goes each way twice a week; that witness cannot say for certain that the prisoner was at Parsons’ on Sunday evening, but thinks he was; that she just thinks prisoner was there on Sunday and she cannot tell why she thinks so.
Emanuel White and A. S. Pogers were also examined by the State. White testified that last fall (1883) the prisoner told him, at David P. Wyatts, that he heard that Mrs. Job W. Parsons had said, that she would give $50.00 to see Job W. Parsons and Frances Summerfield together, and if he knew the money was sure, she could see them together; and witness further stated that he had heard the same rumor about the $50.00. Said Pogers testified that one or two weeks before the Summerfield house was reported burnt, he met the prisoner in the public road at Ped Creek; that he did not recognize the prisoner until he told him who he was 1 that they traveled together on horse-back about four miles and talked about the war and other matters; that prisoner said there were many loose women on Dry Eork, and that Frances Summerfield was one of that kind, and it was a shame that Job W. Parsons was keeping her on his place because he had a nice woman for a wife, and if the thing was not stopped, something like the “Red Creek affair” would likely happen again; that witness understood the “Red Creek affair” was the burning up of some persons years ago; that witness had seen prisoner and talked to him but once before, and that was two months before that time.
Eben. Flanagan, the brother of the prisoner, examined as a witness for the State testified, that the prisoner came to his house on Monday morning, December 17, 1883, about seven o’clock and borrowed some meal; that he was there again on Wednesday following in the afternoon, and before he went away, made a present to witness of a pistol, for which witness had previously offered him $5.00, and said that he would not sell it to anybody but would give it to witness,'who told the prisoner that he would give him something for it, but prisoner said, “ Ho, I may want a favor of you some time.” Witness asked prisoner for a chew of tobacco and he gave him a piece and told him to keep it; that he saw the prisoner again on the next Friday at his own house, and he said to witness: “Have you heard the news ?” Witness replied, “ no, what news ?” and prisoner then said that the word had come to him through his children from the school-house the evening before, that Fanny Summerfield and child were burnt up, and he supposed it was true because George W. Summer-field’s children had brought the word to the school-house the day before; that witness went to chop wood for prisoner, who went away and after a -while returned and told him by himself, a short distance from the prisoner’s boy, where they were chopping wood, that constable Bennett had just summoned him as a witness to appear before the coroner’s jury and prisoner said, “ they would be scouring the country to find out every man’s whereabouts, and he told witness that if anybody enquired where he, the prisoner, was on Sunday night December 16,1883, to tell them he stayed at witness’s house on that night and to tell his father and witness’s wife, and the prisoner’s son, who was staying at witness’s house, to tell the same thing if enquired of; that he wanted it understood thathe stayed at witness’s house that Sunday night that prisoner did not stay at witness’s house that night; that witness testified before the coroner’s jury on Sunday follow ing ; that he was not allowed to talk to prisoner until Monday; that after witness had so testified and before he talked to prisoner he wrote to witness on a chip, “ Did you state at your house on Sunday night ?” and motioned for witness to come to him, and as witness passed by prisoner handed him the chip; that witness read it, and prisoner looked at him for an answer, and witness shook his head; that after the jury had rendered their verdict, prisoner took witness and his father around the house ot Q-. W. White where the inquest was hold, and remarked to witness: “ By your not understanding me I am afraid you have got me in a bad box.”
The gum coat borrowed by the prisoner from Wyatt on December 14, 1883 and worn by the prisoner on that day was produced on the trial, and two physicians who had examined it between the 15th of September 1884, and the time of the trial proved there were eight or ten drops of blood upon it, mostly on the right side and sleeve, and some on the left side and sleeve but they could not tell whether it was human blood or not; that they found a light golden colored hair wrapped around one of the buttons of the coat, and hanging down from four to six inches from the button; that the hair was lighter than that of the prisoner; and it was further proved by another witness for the State that Frances Sum-merfield had light hair, lighter than that of prisoner. Job W. Parsons was twice examined by the State and testified that he left home on Saturday morning December 15, 1883 and was in Grafton on the Mouday following; that as he left home Saturday morning he went by Frances Summerfield’s house, and stopped there; that the catch on the lock of the door was broken so that the door could only be held shut by locking; that there was a stone hearth to the fire-place about two feet wide; that he had a pistol, a five-shooter small., having a home-made rod to hold the cylinder, which he had found in the road; that the last time he saw it was on April 22,1883, that he did not know it was gone until July following ; that the prisoner came to witness’s house late on Friday evening and asked to stay all night, and witness consented ; that prisoner had on him a gum coat and he thinks light clothes; that witness does not feel kindly towards prisoner, and had helped to employ counsel to assist the prosecuting attorney to prosecute him; that he wanted justice dealt out because his house was burnt; that witness had gone twice to see the prisoner’s wife in search of evidence for the State since the prisoner was in jail, and had sent a written order by a sister of Frances Summerfield to the prisoner’s wife for the gum coat, but did not get it; that he wanted it as an i instrument of evidence for the State on the trial. The prisoner introduced various witnesses, who contradicted material portions of the testimony above recited, which under the rule laid down can not be considered. But he also introduced the testimony of other witnesses, showing that the gum coat had remained at prisoner’s house until May 6, 1884, when it was taken away, and left at Mrs. Oallott’s, at Beverly, until September 15, 1884, when it was taken away from her by the sheriff of Randolph county, and left at the office of Dr. Yokum, where it remained until brought into court during the trial. David B. Wyatt who owned the coat testified on behalf of prisoner, that he had owned it for more than two years before he loaned it to the prisoner; had frequently lent it before that time to others, (or as he expressed it, to “ Tom, Dick and Harry”) until it was about worn out; that he had hunted squirrels and pheasants and killed them with that gum coat on, and carried them in his hand with his arm up over the gun when on his shoulder ; that a short, time before he lent the coat to prisoner, he lay by a ’coon tree until day light in company with his boy, who shot the ’coon, and that witness undertook to catch it as it fell to keep it out of the fire and from the dogs; that he failed to catch it; the ’coon falling about four feet from him, and the dogs got it and shook it around some time before lie could get it away from them; that he either had that gum coat on upon that occasion, or it lay close by the fire near the place where the ’coon fell, and it bled a good deal, but he can not say whether blood got on the coat on these occasions or not. Mrs. Mary J. Parsons, the wife of Job W. Parsons, andMiss Knutti, were also examined as witnesses for the prisoner. Mrs. Parsons testified that the prisoner stayed at her house on Friday night, December 14, 1883, and left there on Saturday evening about four or five o’clock, and never returned, and was not there on Sunday, December 16, 1883; that he had been mending shoes on Saturday for Miss Knutti and the children ; that Mr. Parsons was absent and witness got him to feed the cattle before he left on Saturday evening; that she has been post-mistress for eight or nine years past; that prisoner came to her house on Thursday, December 13, 1883, got some papers, wrote a letter and mailed it in her office. Miss Knutti testified that she was living at Parsons’ during the month of December, 1883, and was at Parsons’ house all day Saturday and Sunday, December 15 and 16, 1883; that prisoner left Parsons’ on Saturday evening, December 15, 1883, about four or five o’clock; that he was not and could not have been at that house on Sunday, December 16, 1883, without her seeing him, for she was in every part of that house on that Sunday ; that he was mending shoes on that Saturday evening; and the last time she saw him on that evening, he was in the kitchen, where he got some apples and went away. •
Applying to the evidence in this record the rules of law, which are hereinbefore laid down, the necessity and propriety of adhering to them become apparent.
The first great fact to be established in this case, without full proof of which no rightful conviction could be had is, that Prances Summerfield is dead; for a conviction of murder is never allowed to take place until the body has been found or there is equivalent proof of death by circumstantial evidence to that result. The finding of the remains of a dead body, is not equivalent to finding the body of the person alleged to have been murdered, unless the remains be identified by full proof, which may also be supplied by direct or circumstantial evidence; for unless the remains be so identified, the party supposed to be dead may still be alive. Many lamentable instances in the history of judicial proceedings have occurred, where innocent persons have been tried, condemned and executed, for the murder of persons who suddenly disappeared and who afterwards were ascertained to be alive. Sir Matthew Piale on account of these cases says: “I will never convict any person of murder or manslaughter unless the fact were proved to be done, or at least the body found. 2 Pls. Cr. ch., 39; Wills Circum. Ev. 207. In the case under consideration the jury by their verdict necessarily found that 'Frances Summerfield was dead, and that the burnt remains of one of the persons found in the ashes of her burnt dwelling, where she and her child were living the night before, were her remains, and we are of opinion that the jury from all the surrounding circumstances, detailed in this evidence, were fully warranted in finding that Frances Summerfield was dead, and that her burnt remains were found among the ruins of her dwelling. Another important inquiry still remains to be answered: “Did she come to her death by an act of violence inflicted by any person ? Does the evidence exclude beyond a reasonable doubt the supposition that her death was occasioned by accident? If it does not, then the corpus delicti is not proved, and if not proved, then as we have already seen, however strong and numerous may be the co-incidences of circumstances tcindicate guilt, they will avail nothing; for so long as the least reasonable doubt exists, as to the criminal act, there can be no certainty as to the criminal agent. 1 Stark Ev.; 5 Cush, supra.
So far from the evidence in this record excluding beyond all reasonable doubt, the supposition that Frances Summer-field came to her death by accident, it seems to us that all the surrounding circumstances indicate that she perished by the accidental burning of her dwelling house, and not by her own voluntary act, or by any act of violence inflicted by any other person. She, with her little child lived alone in a little log house a quarter of a mile from her nearest neighbor— three hundred yards off the public oad; the house built to an old chimney, how old, or how long disused before her house was built to it, does not appear; believed to be safe, but not reaching higher than the roof, perhaps not as high as the comb of the roof by two feet; the house small, heated by one fireplace Avarming the whole house; the Aveather cold and stormy, no fire in it until late in the evening, then doubtless a large fire; haAnng had the prisoner with her all the night before, until three o’clock Sunday morning, she doubtless slept soundly; the door locked, as shown by its condition, and the condition of the hinges of the door AAdien the ruins were first discovered; suoav three or four inches deep on Sunday evening; a foot deep on Monday morning, most of Avhieh had fallen before midnight on Sunday night, and no tracks of man or beast, about or near tbe burnt house, on Tuesday morning, at eight o’clock when Jordan and Sum-merfield first saw them; all these facts tend to make it probable, nay almost -cértain, that her house had accidentally caught fire from the chimney, or from burning logs or embers rolling over the narrow hearth, and that awakened from her sleep she perished in the ruins of her blazing dwelling, either by being smothered by the flames or caught by the falling loft or rafters; or in the terror of the moment she may have, even become so bewildered as to be unable to reach or unlock the door, and perished in the vain effort to reach the window. Eo sign of violence upon her remains was discovered, all were consumed except the heart, liver, lungs and apart of the entrails; the bones were burnt to cinders, the leg bone broke off about the knee, when lifted up, the skull was whole, except from the eyes up, it seemed broken up, or burned up, and when witness Jordon took hold of the head it fell to pieces; the presence of the crowrbar, which was suggested in argumentastheinstrument with which the murder was committed, and which was found near the middle of house, is fully accounted for by the witness Elza, who on December 3, 1883 placed it under the trough, in which he had salted three quarters of a sheep, butchered there on that day, and which lay in the ruins within two or three feet from where it would lie, if it had fallen perpendicularly down, from where he then placed it. So far as this evidence shows, nothing that the prisoner ever had or owned, or that any other person ever had or owned, was found on or near the burnt premises — nor was anything ever had or owned by the deceased found on or near the prisoner or any other person. The precise time when this house was bunrt is not known, as it was not discovered until Tuesday morning December 18,1883 about eight o’clock. The evidence however, of Aaron White and his wife would indicate that the the house was in flames on Monday morning December 17, 1883, two or three hours before day, which at that day of the month was between four and five o’clock in the morning.
Considering all these circumstances, and giving full faith and credit to the State’s witnesses, we are of opinion they are insufficient to exclude the supposition that Frances Sum- mcrfielcl perished by the accidental burning of her dwelling, and that they are insufficient to prove that she came to her death by any act of violence from the prisoner or any other person.
Nor is the force of this testimony in any degree strengthened by the other circumstances detailed by the State’s witnesses, which were introduced for the purpose of connecting the prisoner with the alleged murder.
These circumstances, are — the presence of the prisoner at the house of Job W. Parsons on Sunday afternoon of the 16 of December, 1883; of being seen by the witness Lambert, on his way home that Sunday night from the place where the wagon load of corn was left in the road; the conversation had with the prisoner in the fall of 1883, by the witness Emanuel White, about the rumor in regard to the $50.00 — ; the conversation had with the prisoner by the witness Rogers; the blood and the hair on the gum coat; the statements of the prisoner at and after the inquest, “that if he had to suffer others would have to suffer with him,” &c.; and the effort made by the prisoner to falsely make it appear that he had stayed at his brother Eben Flanagan’s house on that Sunday night. All these circumstances are relied upon by the prosecution as sufficient to connect the prisoner with the alleged murder. Now if any one, or all of these circumstances be essential for that purpose, then it follows, that every such essential circumstance, must be proved in the same manner and to the same extent as if the whole issue had rested upon proof of that particular circumstance.
In Commonwealth v. Webster, 5 Cush, supra., Shaw, C. J. delivering the opinion of the court, says, that “the several circumstances upon which the conclusion depends must be fully established by proof.” They are facts from which the main fact is to be inferred, and they are to be proved by competent evidence, and by the same weight and force of evidence, as if each one itself were the main fact in issue. Under this rule every circumstance relied upon as material is to be brought to the test of strict proof. 1st Stark. Ev. 510. If any of the essential circumstances, the proof of which is necessary to establish the guilt of the accused, is con sistent with the hypothesis of his innocence, then that circumstance ought not to have any influence in establishing the main fact to be proved. 3rd Greenl. Ev. sec. 29, note 2; Summers v. The State, 5 Blackf. 579.
Whether the prisoner was at the house of Job W. Parsons on the Sunday afternoon of December 16, as testified to by the witness, Emma Schmithey; or was in the that neighborhood on that Sunday evening, as testified by the witness Lambert, is involved in doubt and uncertainty, and them testimony is so greatly weakened when taken in connection with that of the witness Mrs. Parsons and Miss Knutti, that if we had been on the jury we might not have been able to concur in . their verdict, which necessarily found that the prisoner was seen on that Sunday by one or both of said witnesses. But the jury have passed on this question, and according to the rules we have laid down, we can not say that the jury were not justified in so finding, for they necessarily passed upon the credibility of these witnesses, which we are unable to do, without invading the province of the jury. The conversation of the prisoner with Emanuel White, as well as that with A. L. Rogers, were introduced by the prosecution for the purpose of furnishing some probable ground of attributing to the prisoner some motive, which might have moved the prisoner to destroy the deceased. The motive suggested in the argument of the Attorney General, is that “ he was induced to commit this crime by a jealous woman, who felt outraged by the conduct of her husband.” This suggestion assumes that the husband and wife are guilty of gross crimes, of which they were never accused, and of which this record fails to furnish a single scintilla of proof. It discloses no such misconduct or even a suspicion of such conduct against Job W. Parsons, and no such jealousy, or-cause of jealousy on the part of the wife; no fact tending to show such misconduct of the husband or jealousy of the wife, is disclosed by this record, and the assumption that such cause existed is wholly unsupported by the testimony. Neither is there any evidence to show that Mrs. Parsons ever mentioned the name of Frances Sum-merfield to the prisoner, or that the prisoner ever had any unkind feeling towards her. On the contrary according to the testimony, the prisoner was the one of all others least likely to seek her destruction. The conversation had with White was the repetition of a course rumor, of which the best and purest of women may be the subject in the mouths of the low and vulgar; and this particular rumor, that she liad told somebody she would give $50.00 to see her husband and Frances Summer-field together was not sufficient to cast the slightest suspicion upon the fair fame of any respectable woman, much less, to brand her as a murderess. No such shadow of sin falls upon her pathway; and such an idle rumor can not connect the prisoner with such a crime. Neither does the conversation with Rogers in any manner tend to implicate the prisoner in the alleged murder. The fact of having such a conversation with a man whom he had never seen but once before, would rather tend to show, that such a criminal purpose had never entered his mind. If his allusions to the impropriety of Parsons keeping Fanny Sum-merfield on his farm, were considered by the witness as impugning the purity of P.’s character, it is nevertheless susceptible of a construction entirely consistent with the proprieties of life, for he may have only intended to say that as it was known that Fanny Summerfield was a loose woman, he ought not to permit her to reside on his farm, as it was calculated to annoy his wife. The prisoner did not tell this witness what he meant by another “Red Creek affair,” and the “understanding” of the witness can not in any manner tend to convict the prisoner with this alleged crime. Neither of these conversations can have any conclusiveness in their character, as both may be true, and the prisoner free from the slightest suspicion of guilt. The blood on the coat has been accounted for. Who wore the gum coat or how it was used from December 17, 1883, until May 6, 1884, when it was taken to Beverley at Mrs. • Collets, or where or how it was kept while at her house from May 6 to September 15, 1884, does not appear, and the circumstance of a hair hanging to a button, can have no significance, as no one has pretended to say, when it was firstfound there, or whose it was — as a circumstance it has no conclusiveness ; there is nothing to connect it with deceased, and its presence is entirely consistent with the hypothesis of the prisoner’s innocence. The same remarks apply with equal force to the statements alleged to have been made by the prisoner, that if he had to suffer, or to suffer innocently, others would suffer, &e. All these statements were made after the prisoner knew he was suspected, and all but one of them after he was in custody. There was nothing said to cause any other person to be suspected, or implicated, no effort to deny that he had been with the deceased, all Saturday night, or when he left, or the route by which he returned home, such statements had no significance when made nor did they acquire any by anything which afterwards oocurred. They are perfectly consistent with the hypothesis oí his innocence. The only circumstance that could have any criminal significance against the prisoner was in trying to have his brother Eben to tell that he had stayed at hisliouse on Sunday night, December 16, 1883, and to induce his father and son to tell the same, to any person who might enquire where the prisoner had stayed that night, Avhen in fact he had not stayed there. The prisoner at this time was already summoned as a witness to attend the coroner’s jury, and the constable at that time had in his pocket a warrant for his arrest; and although-the officer did not then inform him of that fact, it is altogether probable he had heard from others, that he was suspected, and would probably be arrested, and he doubtless thought he would escape trouble and expense if he could successfully create the impression that he was at his brother’s house that night, and thereby avoid the necessity ot telling where he did spend Sunday and Sunday-night. No reason is offered by the prisoner for this attempted falsification of fact, except that he said “they would be scouring the country to find every man’s whereabouts.” ITe evidently did not want any' one to know where he stayed that night. He could have made this plain, but until the State had proved the corpus delicti, and other evidence to connect him with the alleged homicide, he was under no greater obligation to show where he was on that Sunday and Sunday night, than was the witness Ray, or Lambert, or any other man in that neighborhood. Where-ever he may have been, it is clear from the evidence that he returned to his own house, on Monday morning about “thq first chicken crow.” It is equally certain that the house was in flames between four and five o’clock, and that the shortest distance between the hurt house and the prisoner’s home was eleven miles, and by the path he said he traveled it was seventeen or eighteen miles, by a mountain path with new fallen snow nearly knee deep. The prisoner was on foot, and it would seem under all the circumstances, it would have been impossible to have traveled from the burnt house to his home by the shortest route between the time the house first took fire, and first chicken crow. In the absence of all evidence connecting the prisoner with the alleged homicide, or the burning of the house, and the absence of all motive on the part of the prisoner to do so, and in view of the friendly relations existing between him and Frances Summer-field, we cannot regard the fact, that he endeavored to create the false impression that he stayed with his brother that night, as a circumstance connecting him with the alleged homicide, when it is possible he may merely have desired to conceal from his wife and children, that he had spent that Sunday with some other loose woman on Dry Fork, as he had the Saturday night before with Frances Summerfield. The prisoner’s conduct may be entirely consistent with his innocence of the crime alleged against him, and his conduct is not inconsistent with the hypothesis of his innocence.
We are, therefore of opinion, that the evidence in the case under consideration is insufficient to warrant the verdict of the jury, and that the circuit court of Randolph county erred in overruling the prisoner’s motion to set aside the verdict and award him a new trial. The judgment of the circuit court is reversed ; and the verdict of the jury set aside; and this cause is remanded to the said circuit court for a new trial to be had therein ; and to be further proceeded in according to law.
ReveRsed. Remanded, | [
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Shyder, Judge:
At a circuit court held for Harrison county, on November 29, 1873, A. P. Sturm, by leave of said court, filed therein what is styled his petition, in the words following:
“The petition of AsburyP. Sturm, a citizen and resident of the State of West Virginia, filed in the circuit court of said county against Solomon S. Fleming, plaintiff1, and Charles McEntire, Selden M. Ogden, John M. Fortney, administrator of Joshua Robinson, deceased, William Monroe, Emory-Strickler, George W. Martin jr., Charles E. Billingsley, Van B. Ogden and Abel Bartlett, defendants, in a chancery cause lately pending on the docket of the circuit court of said county of Harrison, and John Chalfant.
“The petitioner respectfully represents that he is a citizen and resident of the State of West Virginia; that heretofore, to-wit, at November rules, 1864, one Solomon S. Fleming instituted an action of trespass against your petitioner and one Charles McEntire in the circuit court of Harrison county, to recover damages for the taking and carrying away, as alleged, by your petitioner and others of certain goods, wares and merchandise, and an attachment was sued out in said cause and levied upon two tracts of land belonging to petitioner, one of sixty-one and the other of thirty acres, lying upon Robinson’s run, in said county, and also upon the interest of .Charles McEntire in the lands of Enoch McEntire, deceased, lying upon the "West Fork river and JBingamon; that at the December term, 1864, of said court, the said Fleming recovered a judgment against.your petitioner and the said McEn-tire for the sum of eight hundred and seventy-seven dollars and seventy-two cents with interest thereon from April 30,1863, until paid, and fourteen dollars and thirty-two cents costs; that at July rules, 1864, one Selden M. Ogden instituted an action of trespass on the case in said court against petitioner/Charles McEntire and Granville McEntire, to recover damages for an alleged taking and carrying away of three head of horses, and sued out an attachment therein, and caused the same to be levied on ‘one tract of land containing sixty-one acres, also one other tract of land containing thirty acres;- also two acres of land, also upon the interest of Charles McEntire in the lands of Enoch McEntire’s heirs, and at the September term, 1864, the said Ogden recovered a judgment -against petitioner and Chas. McEntire for three hundred and ten dollars, with interest thereon from April 30, 1863, and twenty-two dollars and seventy-seven cents costs; that at August rules, 1864, one Chas. E. Billingsley institutedhis action of trespass on the case against petitioner, Charles McEntire and Peter B. Righter in said court, sued out an attachment thereon, and caused the same to be levied upon thirty acres of land and sixty-one acres of land belonging to the petitioner, on Robinson’s run, also upon the interest of Charles McEntire in the lands of Enoch McEntire, deceased; also upon one hundred and thirty-four acres of land belongingto Peter B. Righter, and at the September term, 1864, obtained a judgment against petitioner and Charles McEntire for twenty dollars, with interest thereon from April 29,1864, and thirty-five dollars and eighty-nine cents costs; that John . M. Fortney, administrator of Joshua Robinson, deceased, at August rules, 1864, instituted an action of trespass against petitioner and Charles McEntire to recover damages for the alleged taking and carrying away of five head of horses, in which an attachment was sued out and levied upon sixty-one acr.es and thirty acres belonging to petitioner, and the interest of Charles McEntire in the lands of Enoch McEntire, deceased; and at the September term, 1864, recovered a judgment for five hundred dollars, with interest from April 30, 1863, and twenty-two dollars and eightty-one cents costs; that at August rulés, 1864, one Emory Stride!er instituted his action of trespass in said court against petitioner, Charles McEntire and Peter B. Bighter, to recover damages for the alleged taking and carrying away of one horse, two hundred bushels of corn, and various articles of provision, and for destruction to the grain field, buggy and gearing belonging to said Strickler, in which suit an attachment was sued out and levied upon sixty-one acres and thirty acres of land belonging to said petitioner, the interest of Charles McEntire in the lands of Enoch McEntire, deceased, also upon one hundred and twenty-five acres of land belonging to Peter B. Bighter; and at the September term, 1864, he recovered a judgment against petitioner and Charles McEntire for two hundred and twenty-five dollars, with interest from April 30, 1864, and nineteen dollars and twenty-four cents costs; that William Monroe, at the August rules, 1864, instituted his action of trespass in said court against petitioner and Charles McEn-tire, to recover damages for the alleged taking away of two head of horses, in -which an attachment was sued out 'and levied upon sixty-one- acres and thirty acres of land belonging to petitioner, and the interest of Charles McEntire in the lands of Enoch McEntire, deceased; and at the September term, 1864, recovered a judgment against petitioner and said McEntire for the sum of four hundred dollars, with interest thereon from April 30, 1863, and nineteen dollars and twenty-seven cents costs; that at the August rules, 1864, one George W. Martin, jr., instituted his action of trespass against petitioner, Charles McEntire and Peter B. Bighter in said court, to recover damages for the alleged taking and carrying away of two horses, one saddle and one bridle, and in said suit sued out an attachment, and caused the same to be levied on sixty-one acres and thirty acres of land belonging to the petitioner, and the interest of Charles McEntire in the lands of Enoch McEntire, deceased; and at the September term, 4864, recovered a judgment against petitioner and Charles McEntire for two hundred and twenty dollar's, with interest from April 30, 1863, and eighteen dollars and four cents costs.’ Your petitioner avers that the several attachments sued out in the said several causes, were founded upon the affidavits of said several plaintiffs of'the taking and carrying away by the petitioner and said McEntire and their confederates of the goods and chattels in the several declarations in the said several causes mentioned, and upon the further allegations in said sovei’al affidavits, that the defendants were non-residents of the State; that the process in the said several canses and the attachments therein, respectively, bear the same date, that said several processes in said several causes were executed by delivering copies thereof to the wives of petitioner and said McEntire, respectively, at the usual places of abode of petitioner and said McEntire, and explaining the purport thereof to their said wives respectively, the said petitioner and McEntire not being found at their said respective places of abode.
“And your petitioner here further avers that at the time said several processes were so executed as aforesaid, he was a citizen and resident of the county of Harrison,in the State of "West Virginia; that he was temporarily absent from his home within the so-called Confederate lines of the armies of the so-called Confederate States of America, and in. the regular military service thereof; that he was not there and in said service by his own voluntary act, but, on the contrary, was arrested at his home in said county of Harrison by armed men and conveyed to a military prison, and by the military forces and authority of the United States, sent against his will and without his consent within the lines of the armies of the so-called Confederate States of America, where he remained until the close of the late war. And your petitioner here avers that all said properly in said several causes mentioned was liable to capture, seizure and appropriation, according to the rules of civilized warfare, by belligerent forces in the prosecution of the war; and that the said several trespasses, and the taking and carrying away oí said property, alleged to have been done and committed by petitioner, for which said several judgments were rendered, were acts done according to the usage of civilized warfare in the prosecution of the war between the so-called Confederate States of America and the government of the United States.
“Your petitioner further avers that after said judgments were obtained as aforesaid, to-wit, gt the February rules, 1865, the said Solomon S. Fleming instituted his suit in chancery in said court against your petitioner, Charles McEn-tire, Seklen M. Ogden, Jolm M. Fortney, administrator of Joshua Robinson, dee’d, William Monroe, Emory Strickler, George W. Martin, jr., Charles E. Billingsley, Van B. Ogden and Abel Bartlett, for the purpose of subjecting the lands levied upon by the said several attachments to the payment of the said several judgments, as well as to the payment of a judgment recovered by the said Van B. Ogden against Charles McEntire at the September term, 1864, of the said court, for the sum of two hundred and twenty-seven dollars and fifty cents, with interest from the 30th day of April, 1863, until paid, and $-, costs; that in said bill the plaintiff claimed that said several attachments and judgments constituted liens on said lands.
“Petitioner further shows that at the time of the institution of said chancery cause, and at the time of the pretended execution of the summons therein, he was still within the military lines of the so-called Confederate States of America; that said summons was executed as to petitioner by delivering a copy thereof to his wife at his usual place of abode; that such proceedings were had therein as that on the 17th day of March, 1865, a decree was rendered, adjudging the said several judgments to be liens on the said several tracts of land, and directing a sale thereof by Burton Desparcl and Edwin Maxwrell, who were thereby appointed special commissioners for the purpose, unless the said petitioner and Charles McEntire should pay to the parties, respectively, whose judgments were provided for by said decree, the amounts thereof within twenty days; that by virtue of said decree, said Despard and Maxwell, commissioners as aforesaid, on the 2d day of June, 1865, sold the tract of thirty acres of land at eight hundred and forty dollars, and the lot of two acres and sixteen poles at four hundred and six dollars and fifty cents, both the property of petitioner, to the said John Clialfant, lie being the highest bidder therefor; that said commissioners also sold on the same day to Thomas McEntire, who became the purchaser thereof, the undivided interest of said Charles McEntire in the tract of three hundred and ninety acres and one hundred and twenty-nine and one-half acres, at the price of eight hundred and one dollars, which sale was reported to and confirmed by said court on the 12th day of June, 1865; that said Despard and Maxwell were directed by said decree to withdraw the bonds of the purchasers as they severally became clue, and disburse the same as required by a former decree in said cause, and convey said land to said purchasers, respectively. And the petitioner avers that said commissioners collected the proceeds of the sale of said lands, and out of the same did fully pay the said several judgments and costs of said chancery cause.
“Youo petitioner further avers that said decrees so rendered were to enforce the payment of said judgments rendered, for acts done as aforesaid, and the same should be set aside and reversed, and restitution made to the petitioner of his said property, or of the proceeds thereof, with interest thereon from the clay of sale thereof.
“Petitioner further shows that said decree of the 17th of March, 1865, and the decree of the 12th day of June, 1865, should be set aside and reversed, for the following reasons also:
“First. Because the" judgment of the said Solomon S. Fleming and the other judgments mentioned in said bill and decrees, were rendered upon attachments, and it did not appear, nor was it true, that either at the time of filing thesaid Fleming’s bill, or at the time of said decree, or either of them, the said judgment-debtors had appeared or been served with copies of the attachments, or either of them, nor had thesaid Fleming, or either of the said judgment-creditors who -were defendants in said suit, given bonds, as requied by law before they could have the benefit of said judgment.
“Secondly. Because it appearing from the said bill that there was the sum of two thousand four hundred and six dol lars and twenty-six cents arising from the sale of the sixty-one acre tract subject to the payment of the said Fleming’s and the other judgments, after the payment of a decree in favor of Bassil Lucas, Jeremiah Shinn, J. B. Denham and "Waldo P. Goff, and the costs of the suit of the said Lucas, there was, without ascertaining the amounts of the said last named decree, or the residue of said sum of two thousand four hundred and six dollars and twenty-six cents, after payment of the said decrees and making application of the same, a sale of other lands ordered and made.
“Third. Because after directing the application of the residue of the two thousand four hundred and six dollars and twenty-six cents (without ascertaining what it was), and also the proceeds of the sales of the-other land, to the payment of the several liens named in said bill, the decree directed the payment of the balance into court.
“Fourth. Becausept is not alleged, nor is it proven, that said several judgments were unpaid, nor does it appear whether the personal property attached had been disposed of before said decree or sale.
“Your petitioner here refers to the papers of all said actions at law, and to said chancery cause, as parts of this petition. Your petitioner therefore prays that said chancery cause be re-heard, the decrees therein made, and every of them, be set aside and reversed, and that restitution of said property, or of the proceeds of sale thereof, be made to your petitioner, and grant to him such other, further and general relief as the nature of his cause requires and to equity appertains, &ci And he will ever pray, &c.
“A. P. SturM.”
This petition is sworn to in due form by the- said A. P. Sturm. Subsequently, on July 13, 1874, the defendants appeared in court and demurred, generally, to said petition, in which demurrer the plaintiff joined and the court, upon consideration, sustained the same and dismissed said petition with costs; and from said decree the plaintiff has appealed to this Court. The sole question presented here is, did the court err by sustaining said demurrer ?
No reasons are assigned in the record for the action of the court and no counsel have appeared for the appellees in this Court; consequently, the labor of discovering as well as considering objections to said petition is imposed upon this Court.
As a preliminary observation, it may be proper to notice that- the said complaint of the plaintiff is styled a petition and not a bill. I do not deem it necessary to enter upon any extended review of the authorities to prove that the form of chancery pleadings has in England, and, perhaps, to a greater degree in this country, ceased to be of any practical importance. Such pleadings in both countries have been greatly simplified. An informal claim or complaint is substituted in many cases for a bill. And the bill, when used, is only a concise narrative or statement of the material parts of the complainant’s case, with a prayer for the appropriate relief, or for general relief which will be sufficient in most cases. A rigid and technical construction of bills and other pleadings is exploded. Mayo v. Marchie, 3 Munf. 384. Mauj' of the old forms, names and technical distinctions of bills are abolished, and all that is now required is that the materia] allegations should be put in issue by the pleadings so that the parties may be duly apprised of the essential enquiry and be enabled to meet it by testimony. The name and -the form are immaterial. Substance is all that is required. In Virginia the practice of courts of equity, which is the rule of practice in this State, allows the greatest liberality with respect to pleadings. Sometimes a petition for a re-hearing is treated as a bill of review and we versa, a notice to correct a decree on bill taken for confessed may be treated as a petition for a re-hearing. Kendrick v. Whitney, 28 Gratt. 646. A bill of review may be regarded as an original bill or a petition in the nature of an original bill. Hill v. Bowyer, 18 Gratt. 364. In Laidley v. Merrifield, 7 Leigh 346, it was declared that an application of a party is not to be rejected altogether because he has given it the form and name of a bill of review, instead of a petition or a supplemental bill in the nature of a bill of review. Judge Cabell said, the court should regard its substance, and treat it accordingly as a petition or a supplemental bill in the nature of a bill of review. In Mettert v. Hagan, 18 Gratt. 231, an answer was held sufficient for all the purposes of a cross-bill. Kendrick v. Whitney, 28 Graft. 654; Sands v. Lynhaven, 27 Id. 291.
These cases show the disposition and practice of com'ts of equity to regard substance rather than mere form or uame, and to so mould and treat the pleadings as to attain the real justice of the case.
The petition in the case before us has all the elements of an original bill in the nature of a lull of review. It was filed by the leave of the court. It has the necessary parties, plaintiff and defendants, and assigns errors in the decrees and judgments therein mentioned and described. It. also sets out the grounds upon which it is alleged that said judgments and decrees should be sot aside and declared void. It sets out formally and distinctly the plaintiff’s complaint and contains a special as well as a general prayer for relief. It has every element of a hill, and in all respects, except in name, it is a carefully prepared and well drawn bill in equity. I think, therefore, according to the authorities before cited and the established practice of courts of equity the said stjded petition may be appropriately regarded and treated as an original bill in the nature of a bill of review claiming relief against the decrees and judgments therein mentioned and for the restitution to the plaintiff of his property therein mentioned. Considering it as such bill and admitting its allegations to be true, the enquiry raised by the demurrer of the 'defendants is, .are the facts therein stated sufficient to entitle the plaintiff to relief?
In Grinnan v. Edwards, 21 W. Va. 247, this Court held, that a decree pronounced, during the late civil war, by the circuit court of Kanawha county, within the Union lines, in a suit instituted in said court by a party residing in said county against parties residing within the. military lines of the Confederate States who never appeared nor were summoned to appear in the cause, except by order of publication which they could not lawfully see or obey, was absolutely void and must be treated as a nullity in any subsequent collateral suit.
Also, in Haymond v. Camden, supra, just decided by this Court, itwas held that, “Judicial proceedings, during the late war, taken within the Union lines against defendants who were absent in the Confederate lines, and who did not appear or have any notice thereof, except the publication of a notice to them in a newspaper which they could not lawfully see, are absolutely void. And it is immaterial in such case whether such defendants were permanent residents of the disloyal States or left their homes in the loyal States and went and voluntarily remained there during the war.”
In the same case it was further held that, “In an attachment proceeding the jurisdiction acquired by the seizure of the property attached is not to pass absolutely upon the rights of the parties, but to pass upon those rights after opportunity has been afforded its owner to appear and be heard. To this end the notice by publication prescribed by the statute is indispensable. Any decree, pronounced in such ease without such publication and opportunity to the defendant to appear and make defense, is not a judicial sentence and will be deemed, ex directo in rem and collaterally, void.”
Applying these principles to the allegations contained in the complaint of the plaintiff in this case, assuming those allegations to be true as we must do in considering the defendant’s demurrer, there can, it seems to me, be no question as to their sufficiency. It is alleged in said complaint that at the several dates, at 'which the actions at law and suit in equity therein mentioned were instituted in the circuit court of Harrison county and the alleged service of the several processes in said actions and suit on the wife of the plaintiff took place, the plaintiff was within the military lines of the Confederate States and in tlie regular military service thereof, and that he remained there until the close of the war. It is, also, alleged therein that said actions at'law were instituted in the year 1864, and the said suit in equity in February, 1865, and it is judicially known to this Court that the late civil war thércin referred to commenced in the year 1861, and continued until after February, 1865, and that Harrison county was during the whole of said war within the Union lines. These allegations of themselves, if true, are sufficient to entitle the plaintiff to the relief prayed for in his complaint. The service of process on his wife, when the plaintiff was absent and forbidden by international law as well “as positive acts of Congress and the proclamations of the Presi dent of the United States to correspond or in any manner communicate with her, was but a vain and idle form, and even if the service of such process on his wife had been communicated to him he was forbidden to appear in said court or defend said actions and suit.
But it may be supposed that, as at the time the plaintiff, appellant here, exhibited his complaint in the circuit court, more than three years having elapsed since the proceedings sought to be effected took place, it was too late to file a bill of review or an original bill in the nature of a bill of review to correct or set aside said proceedings. To this the act of the Legislature, passed April 6,1873, is a sufficient answer. This act was passed obviously to meet and provide for just such cases as this, and excludes, as to the class of persons therein embraced, from the computation of the time within which any civil suit, proceeding or appeal shall be brought, instituted or taken, or petition filed to have proceedings re-heard, the period from the 28th day of February, 1865, to the passage of said act. If this period is excluded the lapse of time is much less than three years, and the plaintiff’s right was not barred at the time lie. instituted his suit or proceeding unless the said act is unconstitutional or the plaintiff is not one of the class of persons embraced therein. That the said act is constitutional was decided by this Court in Huffman v. Alderson, 9 W. Va. 616. And the class of persons embraced in the act, is those persons who could not truly make the affidavit (the test oath) prescribed by section 27 of chapter 106 of the Code. It is alleged by the plaintiff that he was in the military service of the Confederate States. This is sufficient to establish that he could not truly make the' prescribed affidavit and, therefore, he clearly comes within the class of persons embraced by said act. In addition to this, it is shown by the record of the suit of Fleming against, the plaintiff and others, which record is referred to and made part of the plaintiff’s bill in this cause — Craig v. Sebrell, 9 Gratt. 131 — that in December, 1867, the appellant did move the circuit court to set aside the decrees in said suit upon notice, but the defendant in said notice, the appellee, Fleming, filed his affidavit under the act of February 28, 1865, and required the court to dismiss the appellant’s said notice unless lie should make and file the affidavit, known as the “suitor’s test oath,” prescribed by the act of February 11, 1865, in the cause by the first day of the then next term of said court. The appellant, being unable to make and file said affidavit, in consequence thereof, the said court, on June 4, 1868, dismissed the appellant’s said notice. It is true that said act requiring said “suitor’s test oath,” has since been declared unconstitutional and void by this Court and the Supreme Court of the United States — Kyle v. Jenkins, 6 W. Va. 371; Cummings v. Missouri, 4 Wal. 320; Ex Parte Garland, Id. 333. But at that time the courts of this State held said act constitutional and valid and said holding was, in 1870, affirmed by the Appellate Court — Peerce v. Carskadon, 4 W. Va. 234. By reason of said “test oath” and the action of the appellee, Fleming, in requiring it to be made, the appellant was obstructed in the prosecution of his right, and under the provisions of section 18 of chapter 104 of the Code, amended by section 18 of chapter 112 of the Acts of 1872-3, the time such obstruction continued must be excluded in the computation of the time prescribed by the statute of limitations — 2 Kelly’s Rev. Stat. 762.
There is another and independent ground upon which the allegations of the plaintiff’s bill are sufficient to entitle him to relief, and this ground was not affected by the statute of limitations or lapse of time, in any view, at the time the bill was filed. The Constitution of this State — sec. 35 art. 8— declares that, no citizen of this State shall be held liable, civilly or criminally, nor shall his property be seized or sold under judgments recovered for acts done, during the late war, according to the usage of civilized warfare in the prosecution of said war by either of the parties thereto. In Peerce v. Kitzmiller, this Court declared that as this “provision of the Constitution without legislation, the mandate of the provision being explicit, of its own vigor is in full force, a court of equity under its ordinary powers has full control over the subject, on the ground that such a judgment or decree, if rendered for the acts specified in the provision, is void, just as judgments rendered through fraud, accident or mistake will, upon the showing of such facts, by a court of equity be declared void. * * * * Here is a new ground declared to exist for setting aside of j udgments or decrees, to-wit, if they were rendered for acts doné according to the usages of civilized warfare in the prosecution of the war. If the fact appears, that they were so rendered, that is the end of them ; they are void, and no judgment or decree could ever be rendered in such case" 19 W. Va. 581; White v. Crump, Id. 583. The law and mode of proceeding thus declared have since been incorporated in our statute law. Acts 1883 chap. 40, see. 4 p. 57.
The appellant alleges in his bill, or petition as he styles it, that all the property for which the alleged judgments, therein mentioned, were recovered against him, was liable to capture and appropriation by the army, and that the said several trespasses, and taking and carrying away of said property, alleged to have been committed and done by him, for which said several judgments were rendered, were acts done according to the usage of civilized' warfare in the prosecution of the late civil war.
Under the decisions above cited and the equity practice in this State, it was clearly the duty of the circuit court to have overruled the defendants’ demurrer, treated his petition as an original bill or as an original bill in the nature of a bill of review and required the defendants thereto to answer the same, and in default of such answer, or if, after answer, the matei’ial allegations of the bill should be established by proof or the admissions of the defendants, the relief appropriate to the case, should have been granted.
Upon either of the aspects in which I have presented the case, I am clearly of opinion that the circuit court erred in sustaining the defendants’ demurrer to the plaintiff’s said petition or bill, and that the decree of said court of July 13, 1874, sustaining said demurrer and dismissing said bill, must be reversed and annulled with costs to the appellant against the appellees, Solomon S. Fleming, Selden M. Ogden, John M. Fortney as administrator of Joshua Robinson, deceased, William Monroe, Emory Strickler, George W. Martin and Charles E. Billingsley.
And this Court proceeding to render such decree as the said circuit court should have rendered, it is ordered that the defendants’ demurrer to the plaintiff’s petition, vvhich shall be treated, as it is in substance, an original bill in the nature of a bill of review, be and the same is hereby overruled with leave to the defendants to answer the same. And this cause is remanded to the said circuit court with directions to said court that it shall give to the defendants such reasonabletime as it may deem proper to answer the plaintiff’s bill, and upon their failure to answer, or if, upon such answer, the material facts alleged in the said bill are established by proof or the admissions of the defendants, then to set aside the decrees and declare void as to the plaintiff the judgments therein mentioned, set aside and annul the sales of the plaintiff's property made under said void judgments and decrees and restore him to the possession thereof, and otherwise proceed in this cause according to the principles announced in this opinion, and further according to the rules and practice of courts of equity.
DecRees Reversed. Cause Remanded. | [
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Lucas, President :
This suit was originated by a hill filed by Minter A. Jackson against James D. Wilson, clerk of the County Court of Randoph county, Leland Kittle, the purchaser, and John S. Pisher, the former owner of a tract of one thousand three hundred and seventy five acres, which was sold by the sheriff at a sale of delinquent lands on the 27th of November, 1887, or, as the bill alleges, on the 28th of said month. In pursuance of a decree of the Circuit Court of TTpshur county rendered in certain suits in equity pending and heard together, C. C. Higginbotham and G. M. Pleming, commissioners, sold to the plaintiff a certain tract of one thousand three hundred and seventy five acres of land situate in Randolph county, and by a decree of the Circuit Court of TTpshur county pronounced in said causes on the 14th day of Octobei', 1886, the said sale was confirmed, and the said commissioners were directed to convey said tract of land to the plaintiff'. At a sale of delinquent lands made by the sheriff of Randolph county on the 28th day of November, 1887, eight hundred and ninety acres of said tract of land were sold to one Leland Kittle for the non-payment of taxes charged thereon for the year 1885 in the name of John S. Pisher, the owner thereof, before the said sale by the commissioners ; and before said Leland Kittle obtained a deed for the land so purchased by him, towit, on the 28th day of February, 1889, the plaintiff'presented his bill in equity against Leland Kittle, John S. Pisher, and James D. Wilson, clerk of the County Court of said county of Randolph, to the Honorable W. G. Bennett, judge of the eleventh judicial circuit of West Virginia, and obtained an injunction inhibiting said clerk of the County Court from making a deed to said Kittle etc., and thereupon on the 1st day of March, 1889, the plaintiff filed said bill in the clerk’s office of the Circuit Court of said county of Randolph, gave the bond required by said injunction-order, obtained process- on defendants to answer said bill, and matured the same for hearing.
The general object of said bill was to set aside the sale of eight hundred and ninety acres of the said tract of land so made by the sheriff of Randolph county to the said Kit-tle for irregularities, defects and omissions in the proceedings, by which the said sale was made, and after the sale. At the May rules, 1889, in the clerk’s office of the Circuit Court of Randolph county, the defendant Leland Kittle appeared, entered his demurrer to said bill and filed his separate answer thereto, and thereafter both the plaintiff aud the said Kittle took and filed depositions in the cause. .
By deed bearing date on the 18th day of February, 188.7, the plaintiff sold and undertook to convey the said tract of one thousand three hundred and seventy five acres of land to the Welsh Land Association, John B. Lodwick, presi-ident, and W. R. Thomas, secretary, and retained a vendor’s lien on the face of said deed to secure the payment of the unpaid purchase-money due plaintiff; and for fear it might be held that they as well as other parties, to whom said John B. Lodwick afterwards undertook to convey certain parcels of said tract of land by deeds, were necessary parties to said suit, the plaintiff, on the 27th day of September, 1889, in the Circuit Court of Randolph county filed his amended and supplemental bill to his original bill, by which he sought to make new parties defendants to said cause and alleged some newly-discovered grounds, as he thought, for setting aside said tax-sale, and thereupon moved the said Circuit Court for leave to remand said amended and supplemental .bill to rules, for the purpose of suing out process against the defendant therein named, and maturing the same for hearing, to which the defendant Leland Kittle by counsel objected, and the court sustained said objection and refused to remand said amended and supplemental bill to rules for the purpose aforesaid.
On said last-named day, the defendant, Leland Kittle, entered his demurrer in writing to the said original and amended and supplemental bills, and filed his separate answer to the amended and supplemental bill, and moved the court to dissolve the injunction theretofore awarded in said cause; and thereupon the court heard the cause upon the pleadings, proofs and motion to dissolve the injunction, and after considering the same -overruled the demurrer, dissolved the injunction and dismissed the bills with costs to the defendant Leland Kittle.
The object of this suit is to remove a cloud from the title of the tract in question by enjoining and restraining the purchaser at the tax-sale from obtaining his deed; and by setting aside, annulling and declaring void said sale.
There can be no doubt- that a court of equity has authority to remove a cloud from the title to realty by setting-aside tax-deeds and tax-sales under proper circumstances. The exercise of the jurisdiction, however, depends mainly upon two conditions : —the plaintiff must have a sufficient interest in the subject-matter, and the remedy at law must he inadequate. Simpson v. Edmiston, 28 W. Va. 675; 3 Pom. Eq. Jur. § 1899, with notes; Blackw. Tax-Titles, c. 34; Barr v. Glayton, 29 W. Va. 256 (11 S. E. Rep. 899). In the case last cited (Barr v. Clayton) the owner had sold all of her interest, retaining a lien for the purchase-money, and had subsequently died. The suit was instituted by her heirs, and her personal representative was no party, and it was held, the heirs had no sufficient interest to enable them to maintain the suit.
In the present case the plaintiff, when he instituted his suit, had sold the land in controversy, although he had not at the time of sale any deed himself, and his deed would pass nothing but his equitable title together with a right to, demand a deed. In his conveyance to the Welsh Land Association ; he reserved a vendor’s lien, and covenanted to warrant generally the title. It appears further, that he subsequently acquired the legal title, and also that he released his lien for the purchase-money. These facts are introduced into the case by amended and supplemental bill, and the answer thereto.
The first question in the case is : Did the complainant have such an interest in the subject.of controversy as would authorize him to maintain suit ? If he had, the jurisdiction of chancery to entertain his bill to remove a cloud is quite clear, because, having only an equitable title, and there being no adversary possession, it is obvious, he had no adequate remedy at law. The only interest which he had in the premises was the fact, that he had conveyed them with a covenant of general warranty. In the case of Bissell v. Kellogg, 60 Barb. 617, it was held that “a party can not maintain an action to remove a cloud upon the title to land, in which he has no interest, upon the sole ground that he has warranted the title. ” In the opinion of the court it is said:
“¥e have been referred to no authority, and have discovered none, giving countenance to the idea that a párty can maintain a suit to remove a cloud upon the title' to land in which he has no interest, and upon the sole ground that he has warranted the title; and we do not think such an action can be maintained. Equity interferes to remove clouds upon title because they embarrass the owner of the property clouded, and tend to impede his free sale and disposition of it. A cloud upon title is a title or incumbrance, apparently valid, but in fact invalid. A party whose only interest is that he has given a covenant of warranty can not be embarrassed or inconvenienced by the existence of a cloud. lie can only be called upon oh his covenant of warranty where there has been an eviction under valid and paramount title. ”
This reasoning seems quite clear and' conclusive so far as it goes ; but the opinion is qualified, as it 'proceeds, by tacitly admitting that there are exceptions. If the present were a case in which a tax-deed had been actually executed and delivered, and the object were'to set it aside, we might well hesitate to do so at the instance of one who had no other interest than his general warranty of title. But -in this case no actual deed had been made, and the object was to interpose between the tax-sale and the execution of the deed, and to prevent the latter. Our Code cures -certain irregularities, if not taken advantage of before the execution of the deed, but which might nevertheless invalidate the tax-sale, if so taken advantage of before the clerk consummates the transaction by giving the purchaser his deed. Eor example, it is provided in section 25, c. 31, p. 220, Code 1887, that “no irregularity, error, or mistake in tbe delinquent list, or the return thereof, or in the affidavit thereto, or in the list of sales filed with the County Court, or in the affidavit thereto, or in the recordation of such list or affidavit as to the manner of laying oft’ any' real estate so sold, or in the plat, description, or report thereof, made by the surveyor, or other person, shall, after the deed is made, invalidate or affect the sale or deed. ”
The question, therefore, is: Where such defects, as are cured by the making of the deed, have characterized the sale, must one, who has warranted generally the title, lie by and suffer himself to be placed in a worse position ? I think the cáse analogous to one where the evidence is about to be lost. In such case I do not think the vendor, whose inertia would result in perfecting a title, which would oust his vendee, must lie by and thus most materially impair, or suffer tobe destroyed, his defence of the title, in case his vendor notify him to defend, or his own defence in an action on his covenant of warranty. For these reasons, I think the plaintiff Lad sufficient interest to maintain his bill, and the demurrer was properly overruled.
I come now to consider the irregularities in the tax-sale, which it is claimed invalidated it and justified the interposition of the court of chancery. There is no question of a right to redeem involved here, since it is admitted on all hands, that the year, within which redemption was authorized by law, had long expired, when suit was instituted. So also the tender made on the 2d of January, 1889, was beyond the limit of time fixed by law.
The irregularities in the proceedings ' attending the sale are claimed to have been the following: (1) Prior to said sale of land said sheriff did not post one of the copies of the list of said delinquent lands received from the auditor on the front door of the court-house' of said county of Randolph, with a notice appended thereto, nor did any other person post .said list and notice on said front door. (2) The caption of said list is not in compliance with section 12 of chapter 31 of the Code of 1887, as it should be. (3) The oath of said sheriff' of Randolph county is not in compliance with section 13 of said chapter of Code, as it fails to show the list of real estate redeemed, and the names of the persons who redeemed the same, and fails to show that said sheriff was never at any time directly or indirectly interested in the purchase of said real estate. (4) Said list does not leave therein a column for amount of school-district and independent school-district taxes etc., as the law requires. (5) Said sheriff’s affidavit is not in form or effect as required by the statute, for the reason that, in addition to the defects hereinbefore set forth, it fails to set forth that said list contains a true account of all the real estate within his county which had been sold by him, said sheriff. (6) No list of redemptions was made. (7) No local descriptions of lands sold are given in the list so published.
In regard to the first objection it is sufficient to say, that the evidence does not sustain the omission as alleged.
So also in regard to the second charge the caption of the delinquent list was substantially in the form by law prescribed.
As to the third alleged irregularity there is exhibited with the answer of the defendant a “list of real estate in the county of Kandolph redeemed from the sheriff'prior to the date of sale in the month or months of October and November, 1887, by payment to him of delinquent taxes due thereon, for the years 1885 and 1886,” and the oath of the sheriff appended thereto seems to be unimportant so far as regards lands redeemed. See Code 1887, c. 31, s. 13.
The fourth objection does not seem to be sustained by the record, evidence and exhibits.
The fifth objection is that the sheriff’s affidavit to his list of lauds sold as delinquent lands is not in form or effect as required by statute. The form required by the statute (see chapter 31, §§ 12, 13, Code 1887) is as follows : — '“I, A. B., sheriff ” etc., “do swear” etc., “and that I am not now, nor have I at any time been, directly or indirectly interested in the purchase of any of said real estate, so help me God.” In the affidavit objected to in this case, the words, which I have italicized in the prescribed affidavit, were omitted, and the sheriff has sworn that he is not interested in the purchase of the lands sold by him, but fails to swear that he lias not at any time been so interested. So far as this affidavit shows, he might have been interested at the time of sale, and the affidavit still he true. It is evidently neither in form nor substance the affidavit required by law. If there were any doubt upon this subject, it would be removed by the fact that the affidavit is in the old form prescribed by the Acts of 1872-73, and 1882, while the act that was passed February 5, 1887, and went into effect May 5th, of the same year, abolished the old affidavit, and substituted the new by an amendment. To say that the amendment was not material or substantial would be to impeach the intelligence of the legislature. Compare section 13, c. 5, p. 8, Acts 1887, with same section of chapter 130, p. 393, Acts 1882. It is such a defective execution of the demand and intention of the amended statute as to amount to no affidavit at all; and we may discuss the importance of the omission as if the sheriff’had appended no affidavit whatever to his list of sales.
Our statute provides: “And no irregularity, error or mistake in the delinquent list, or the return thereof, or in the affidavit thereto, or in the recordation of such list or affidavit, or as to the manner of laying off’ any real estate so sold, or in the plat, description or report thereof made by the surveyor or other person shall, after the deed is made, invalidate or affect the sale or deed.” Code, p. 220, c. 31, s. 25. All of the defects in the return of sales which are mentioned in this section had been held fatal in the courts of this State and other states to the validity of the tax-sale. Thus, in Jones v. Dils, 18 W. Va. 763, it is said : “How, if there are omitted from the list some of the positive requirements of the statute, can it be called a mere irregularity which will not affect the sale ? To say that the legislature has enacted that certain proceedings are necessary to the sale of real estate for taxes, and at the same time to say that the omission of any of such proceedings is mere irregularity, is absurd. If any of such proceedings may be omitted, why not all? IIow can we say which is material, and which is not? The legislature prescribes the rule, not the courts; and we must regard all the requirements of the statute alike essential.” See, also, Dequasie v. Harris, 16 W. Va. 360.
Again, in McCallister v. Cotrille, 24 W. Va. 173, it was decided that “it is the official duty of the clerk of the county court to note in his office the day on which the sheriff returned his list of the sales of lands sold for delinquent taxes; and if he fails to make such note, or his office shows that such list was not returned and filed therein for more than ten days after the completion of such sales, this, in either case, is such an omission and irregularity as materially to prejudice the rights of the owner of land sold at such sale, and therefore vitiates any deed made to a purchaser of the land by said clerk or a commissioner appointed for that purpose.” In the same case, on page 176, it is said: “The affidavit of the sheriff is an essential part of his report.” See, also, Barton v. Gilchrist, 19 W. Va. 223.
In Simpson v. Edmiston, 23 W. Va. 675, it was held that the omission by the clerk of the county court to note in bis office the day on which the sheriff' returns to his office the list of lands sold for delinquent taxes is good ground to set aside the tax-deed as invalid.
In his work on Tax Titles, Mr. Blackwell says : “Where the law requires the officer who made the sale to return a history of his proceedings, it must be done at the time and in the manner prescribed, or the sale is invalid. The return must show the description of the land, the name of the purchaser, the time of the sale, and all other particulars connected with it, which the law requires.” Blackw. Tax-Titles, 304.
How, the legislature must be presumed to have known the law, when they passed the curative act of 1882, which we are now considering (see Acts of the Legislature, 1882, p. 401, c. 130, § 25); and the fact that they expressly limit its remedial efficacy to the period after the purchaser shall have obtained his deed renders it certain that they did not mean to prevent the owner from availing himself of these errors and irregularities as against the equitable title of the purchaser, before his deed is obtained. The clerk has no power to make a deed, unless the sale has been perfectly fair; and the record evidence to him of.that fact is the affidavit of the sheriff to the return of sales, and, if this is wanting, the clerk can be restrained by injunction from making the deed. I have not overlooked the very comprehensive clause with which the section (25, c. 31, Code) concludes, which is as follows :
“But no sale or .deed of any such real estate under the provision of this chapter shall he set aside, or in any manner affected, by reason of the failure of any officer mentioned in this chapter to do or perform any .act or duty herein required to be done or performed by him after such sale is made, or by illegal or defective performance, or attempt at the performance, of any such act or duty after such sale, or by reason of the conveyance by the deed hereinbe-fore mentioned and prescribed of a less quantity of real estate than that mentioned in the lists of sales made out and returned as provided in the twelfth, thirteenth, and fourteenth sections of this chapter, if the real estate so conveyed by such deed be in fact the same which was sold as delinquent.”
If this concluding paragraph is to be given the force of a sweeping indemnity against all defects in the return of the officer making the sale, then the preceding paragraph, which I have quoted, would be entirely useless or repugnant. Such a construction will be avoided if possible. Conflict and repugnance in statutes should always be avoided by construction, if possible. Indeed a statute ought upon the whole to be so construed that, if it can be prevented, no clause, sentence or word should be superfluous, void or insignificant. Where a general intention is expressed, and' the act also expresses a particular intention incompatible with the general intention, the particular intention will be regarded as an exception, and will prevail. Dwar. St. (9 Laiv Lib.) 658.
By applying these principles to the section we are discussing, and construing the concluding sentence quoted above as referring to attacks upon the deed, or upon the sale after the deed is made, all conflict will be avoided, and the remedial effect of the statute not materially diminished. Inasmuch, however, as the complainant below has offered to pay to the defendant Kittle the same amount which he would owe were this a case for redemption, I think he should comply with that offer, and upon his doing so the tax-sale should be set aside, and the injunction perpetuated. For these reasons, the decree rendered by the Circuit Court of Randolph county must be reversed, and the cause remanded.
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Berry, President:
This is an appeal by Vitro Corporation of America, a corporation, from a final judgment of the Circuit Court of Berkeley County, West Virginia, of January 13, 1967, in a declaratory judgment proceeding in which the trial court construed a contract between the plaintiff and defendant and held, among other things, that the defendant, Vitro Corporation of America, was obligated to pay to the plaintiff, Berkeley County Public Service District, the minimum sum of $275 per month for potable water for industrial and sanitary purposes, whether used or not, for a period of 40 years beginning August 1, 1959, and ending July 31, 1999, and rendered judgment against the defendant in the amount of $23,595 for said minimum payments due the plaintiff which accrued after the defendant notified the plaintiff that its plant was closed and that it no longer required any water to be furnished to it.
An appeal and supersedeas were granted by this Court on November 6, 1967, and the case was submitted for decision on arguments and briefs of both parties at the April Special Docket of the January, 1968, Regular Term.
The water contract involved in this case grew out of a projected and actual industrial development in Arden District in Berkeley County, West Virginia, near the City of Martinsburg. In 1952, Thieblot Aircraft Corporation built a plant at or near the Martinsburg Airport worth about $800,000, which was served by water obtained from a well. However, this water was corrosive and not satisfactory for the use of the defendant and a better water supply was desired. In 1956 the Thieblot plant became a division of Vitro Corporation of America and Armand Thieblot, president of Thieblot, became the head of the Thieblot division of the Vitro Corporation when they merged. Around 1954, efforts were made to establish a water service district in the area outside the City of Martinsburg where the municipal airport was located, and where the Thieblot plant had been built. An adequate unutilized supply of good water from a private source was located a few miles from this area, and the City of Martinsburg did not desire to serve the area through its municipal water works. Consequently, action was taken to obtain the output of this private water supply known as LeFevre Springs, which was owned by the descendants of one of the early settlers in that area. Other plants were also located in this area, such as the C. H. Musselman Company dealing in apple products, which were potential customers of the water service district.
Negotiations of water contracts with Thieblot and other companies and the organization of a water service district were made and undertaken at about the same time. The evidence indicates that the public service district was initially motivated by the prospect of a long-term water contract with Thieblot as well as others and would not have come into being if this prospect had not existed. The plaintiff claims that the resulting contract binds the defendant to pay for water used by it since it ceased operation of its plant in that area in 1960.
The contract which was introduced in the evidence is dated November 18, 1958, was executed by the Vitro Corporation of America on that date and executed by the Berkeley County Public Service District on November 20, 1958, was substituted for a prior contract dated May 1, 1958, which was cancelled by the November 18, 1958, contract, and provided that not later than May 31, 1959, at least some of the water provided for in said contract would be furnished. However, the evidence is uncontradicted that water was not furnished under the contract in question until August 1, 1959. The contract in question contains two conditions upon which charges under the contract were to be made: (1) Available water for fire protection at the rate of $400 per month, and, (2) water which Vitro “shall require” for industrial and drinking purposes at rates to be fixed by the Public Service Commission of West Virginia. Both the water services for fire and industrial and drinking purposes were to continue for a period of 40 years but the charge for the available water for fire protection purposes was subject to an adjustment at the end of ten years from the date of the contract, and every five years thereafter. The water for industrial and drinking purposes was to be furnished to Vitro as it shall require at the rates from time to time approved by and on file with the Public Service Commission of West Virginia. The evidence indicates that Vitro understood it was to pay a minimum charge for available water for fire protection purposes with such water to be furnished at 50 pounds pressure, with immediate availability of 1000 gallons a minute; but as to the clause concerning payments for industrial and drinking water the evidence indicates that Vitro did not understand that it was bound to pay for forty years at a minimum rate, whether water was used or not and regardless of whether or not it remained connected as a customer to the public utility. The contract appears to have been negotiated at Martinsburg by both local and non-resident negotiators, after which it was forwarded to other offices for approval. Considerable evidence as to "what the parties intended was introduced by both the plaintiff and the defendant, and each claimed it was entitled to introduce the evidence to settle an incorrect interpretation insisted upon by the other, or that the evidence so introduced was not an interpretation but was merely establishing a collateral fact which caused the contract to be negotiated and executed.
An unusual situation exists in which each party insists that the contract is not ambiguous but is clear, although they came to opposite conclusions as to how to charge under the contract. The trial court judge stated that if the parties were unable to agree as to the conditions of the contract he would consider it ambiguous. This, no doubt, accounts for the numerous objections made throughout the trial by each party to the introduction of evidence by the other touching in any manner on the negotiations of the contract.
The case was tried by the judge in lieu of a jury and the plaintiff introduced considerable evidence showing that after the contract was negotiated a loan was approved by the United States of America Housing and Home Financing Agency to establish the district and that an investment banker sold bonds of the public service district; that neither of these acts would have taken place according to the testimony and documents of the agency and banker except that they, after examination of the contract, concluded that it bound Vitro to pay $400 a month for fire protection and $275 a month for industrial and sanitary water, making a total of $8100 a year to last for 40 years. This evidence was objected to by the defendant on the ground that it was interpreting the contract, which was the prerogative of the court and not the witness. An examination of such evidence indicates that the witnesses were not connected with the negotiations of the contract but took collateral steps based upon an interpretation of what they thought the contract meant.
Inasmuch as the interpretation of the conditions contained in the contract in question are matters for the court to determine, considered with any proper evidence, the entire contract is hereby quoted:
“THIS AGREEMENT made and entered into in quadruplicate this 18th day of November, 1958, by and between Vitro Corporation of America, a Delaware corporation (hereinafter called ‘Vitro’), and Berkeley County Public Service District, a public corporation created under Article 13A of Chapter 16, West Virginia Code of 1955 (hereinafter called ‘Berkeley’),
“WHEREAS Vitro owns, and operates through its Thieblot Aircraft Company Division, a plant located near Martinsburg, Berkeley County, West Virginia (hereinafter called the ‘Plant’), and is desirous of obtaining for said Plant an adequate source of potable water for fire protection purposes and for industrial and sanitary uses, to be supplied through a public supply and distribution system; and
“WHEREAS, Berkeley is presently engaged in financing the construction of a public water supply and distribution system within Berkeley County, West Virginia, by the issuance of revenue bonds and the execution of contracts for the construction thereof; and,
“WHEREAS the parties hereto entered into an agreement dated the 1st day of May, 1958, providing for certain water service to said Vitro and it is now desired by each of said parties to cancel and annul said agreement and enter into a new agreement relative to such service:
“NOW, THEREFORE, THIS AGREEMENT, WITNESSETH, That for and in consideration of the mutual covenants and premises hereinafter set forth, the parties hereto agree as follows:
“1. The contract and agreement entered and executed by and between the parties hereto dated the 1st day of May, 1958, is hereby cancelled, annulled and declared to be of no effect and benefit to either of the parties hereto and in place and instead thereof, the parties hereto mutually agree and represent as hereinafter set forth.
“2. (a) Not later than May 31, 1959, Berkeley shall make water available to Vitro for fire protection purposes only, at a rate of flow of not less than 1,000 gallons per minute and at a flow pressure of not less than 50 pounds per square inch, such water to be made available at Vitro’s line and/or lines located at the easterly end of a permanent right of way along West Virginia Secondary Route No. 19/1 in Arden District, Berkeley County, West Virginia (said right of way having been perpetually deeded to Thieblot Aircraft Company, Inc., and assigned by the latter to Vitro.)
“ (b) For -the water made available under paragraph 2 (a) hereof, Vitro shall pay to Berkeley the sum of Four Hundred Dollars ($400.00) monthly in advance on the first day of each month during the term hereof; provided, however, that such sum shall be eligible for adjustment at the end of ten (10) years from the effective date hereof and at the end of each five (5) year anniversary date thereafter upon the approval of the Public Service Commission of West Virginia.
“3. Berkeley shall further furnish to Vitro, at a 6x3x3/4 inch meter located at said Plant, such amounts of potable water for industrial and sanitary purposes as Vitro shall require at Berkeley’s normal flow and pressure for which Vitro shall pay Berkeley at the rates from time to time approved by and on file with the Public Service Commission of West Virginia.
“4. (a) The term of this contract for water for fire protection shall be deemed to begin on such date Berkeley shall first make available to Vitro the water service referred to in paragraph 2 (a) hereof, and shall continue in force and effect for a period of forty (40) years, thereafter.
“ (b) The term of this contract for water service for industrial and sanitary purposes referred to in paragraph 3 hereof shall be deemed to begin on such date Berkeley shall first make available to Vitro its water service for these purposes, and shall con tinue in force and effect for a period of at least forty (40) years thereafter.
“5. This agreement shall be binding upon Vitro and Berkeley and their respective successors and assigns. If any person, firm or corporation shall succeed to the ownership of the Plant by purchase, merger or consolidation, then such successor shall be entitled to the rights and be subject to the obligations of Vitro hereunder and Vitro shall have no further obligation or liability hereunder.
“WITNESS the signature of Vitro Corporation of America, a Delaware corporation, by J. Carlton Ward, Jr., its President, and its seal duly affixed this 18th day of November, 1958, and the signature of Berkeley County Public Service District, a public service corporation of West Virginia, by D. M. Wageley, Chairman of Berkeley County Public Service Board, and its seal duly affixed this 20th day of November, 1958.” ([Emphasis supplied.]
Under the terms of this contract Vitro continued to pay the fire protection charge and was not in arrears of this charge at the time of the trial. However, after June 30,1960, it refused to pay for water under the industrial and sanitary provision for which, up until that time, it had been billed at a minimum rate of $275 a month as the Public Service District interpreted certain Public Service Commission’s orders to allow it to charge. The evidence shows that during the time Vitro operated it only used about 800,000 gallons of water a month which, if charged for at bracketed rates set by the Public Service Commission, was still a little under the minimum charge provided for in such rates and charges fixed by the Public Service Commission.
After gradually closing its plant in May and June, 1960, Vitro refused to pay for the industrial and drinking water on the ground that it did not require any water, and as a result thereof this suit was instituted by the Public Service District against Vitro on November 29, 1962, for a declaratory judgment to construe the contract, declare the rights and obligations thereunder and give judgment for the money claimed due to the plaintiff, the Public Service District.
Apparently, the case remained inactive except for certain pleadings up until 1966 when Vitro forced the Public Service District to answer certain interrogatories which disclosed that the plaintiff intended to use witnesses concerning the period during which the contract was being negotiated. It also appeared that the Circuit Judge had been attorney for the City of Martinsburg when the sale of the ground was negotiated for the Thieblot plant which was later constructed on such real estate formerly owned by the City. Because of the negotiations stated above, counsel for Vitro moved that the judge “recuse” himself, which he stated he would do, but upon objection by counsel for the plaintiff he remained on the bench and heard the case. This is assigned as error by the defendant.
A motion for summary judgment was made by Vitro in 1964 on the ground that the contract was clear and unambiguous but the motion was overruled by the court and such ruling is also made an assignment of error. At the close of the plaintiff’s evidence and at the close of all the evidence in December, 1966, the defendant moved that the court find in its favor, which court refused to do. The court then dictated an opinion from the bench finding in favor of plaintiff. The defendant then moved, January 3, 1967, for a new trial, which was within 10 days of the entry of the final judgment, in compliance with Rule 59(b), R. C. P. An amended motion for a new trial and a request for additional findings of the fact and conclusions of law were also made by the defendant on January 6, 1967, and the court granted the motion for additional findings and conclusions but refused the motion for new trial. On January 12, 1967, defendant filed a “supplemental amended motion for a new trial”, which court overruled by its final order of January 13,1967.
It will be noted that the contract, which is quoted verbatim herein, provides that the plaintiff shall furnish to the defendant at a 6x3 x % inch meter located at defendant’s plant such amount of potable water for industrial and sanitary purposes as the defendant shall require at plaintiff’s normal flow and pressure for which defendant shall pay to the plaintiff at the rates from time to time approved by and on file with the Public Service Commission of West Virginia. An order of the Public Service Commission dated January 28, 1958, entered about 11 months before the contract in question was executed by the parties, sets up the following rates and charges:
“On December 7, 1957, Berkeley County Public Service District filed an application, duly verified, for (1) a certificate of public convenience and necessity to construct and operate a public water supply system in the County of Berkeley and for (2) authority to place in effect the following schedule of rates and charges:
First 5,000 gallons used per month $2.00 per thousand gals
Next 10,000 gallons used per month 1.50 per thousand gals
Next 35,000 gallons used per month .80 per thousand gals
Next 950,000 gallons used per month .30 per thousand gals
MINIMUM CHARGES
5/8 Inch Meter $4.00 per month
1 -Inch Meter 25.00 per month
2 -Inch Meter 120.00 per month
6x3x3/4 Inch Meter 275.00 per month
8x4xl-l/2 Inch Meter 500.00 per month
MULTIPLE SERVICE
“Where multiple service is rendered through one meter, the minimum shall be multiplied by the number of families, apartments, and/or business establishments served.
INDUSTRIAL SERVICE
“For industrial users, the minimum shall be established by negotiation of individual contracts.”
íJí Hí %
“The applicant is hereby granted a certificate of public convenience and necessity authorizing the construction and operation of a water treatment and distribution system in the district area served by the Berkeley County Public Service District.
“The schedule of rates and charges requested by the applicant for such service and as hereinbefore set forth is approved, provided, however, that the applicant shall provide the Public Service Commission of West Virginia with a copy of any contract negotiated with any industrial user in the event that the terms of such contract differ in any respect from the rates hereinbefore set forth.
“The applicant will file with this Commission a tariff in the form prescribed by the Commission setting forth said rates and charges.” [Emphasis supplied.]
Two weeks after this first order the Public Service Commission under date February 11, 1958, made the following changes:
“Whereas, by order entered herein on January 28, 1958, the rates and charges for water service which the applicant, Berkeley County Public Service District, had sought authority to place in effect were approved by the Commission, and whereas, the Commission had intended to make certain changes in said rates and charges, but the said changes were inadvertently omitted.
“Now, therefore, it is ordered that said order entered herein on January 28, 1958, be, and it hereby is, amended to provide that the rate of thirty cents (300) per thousand gallons shall apply to all water over 50,000 gallons used per month instead of the next 950,000 gallons as stated in said application; and that the provision ‘After one month from the date of thereof a penalty of not less than ten per cent (10%) shall be added to all water bills for each additional month or part thereof between the date of the bill and the date of its payment’ be changed to ‘After one month from the date thereof a penalty of ten per cent (10%) shall be added to all water bills’; and it is further ordered that in all other respects said order of January 28, 1958, shall remain in full force and effect.”
Again, on April 10, 1958, 7 months before the contract between the plaintiff and defendant was executed, the Public Service Commission made another correction specifically set out as follows:
“Whereas, by order entered herein on January 28, 1958, the rates and charges for water service which the applicant, Berkeley County Public Service District, had sought authority to place into effect were approved by the Commission, and whereas, the schedule of said rates and charges contained the provision ‘For industrial users the minimum shall be established by negotiation of individual contracts’ when the provision should have read ‘For industrial users the rate shall he established hy negotiation oj individual contracts.’
“Now, therefore, it is ordered that said order entered herein on January 28, 1958, be, and it hereby is, amended to provide that ‘For industrial users the rate shall be established by negotiation of individual contracts’ instead of ‘For industrial users the minimum shall be established by negotiation of industrial contracts’; and it is further ordered that in all other respects said order of January 28, 1958, as amended by an order entered herein on February 11, 1958, shall remain in full force and effect.” [Emphasis supplied.]
Another order entered by the Public Service Commission dated March 13, 1961, changed the limits of the Public Service District but has nothing to do with the contract in question. It should be noted that the additional order of April 10, 1958 of the Public Service Commission, just quoted, making a correction in its order of January 28, 1958, casts the burden of negotiating individual contracts •with reference to rates on the industrial users. This privilege was not utilized as to industrial and sanitary waters in the contract now before the Court to vary the schedules set up by the Public Service Commission, and from an inspection of the contract itself it would have been impossible to ascertain any amount which could be the foundation of a monetary judgment. The specific question before the Court is, even if liability extends for forty years what, if any, is the amount of liability. One must look beyond the face of the contract to find any rates or charges that may be made.
The only minimum or maximum charge provided for in the contract is $400 a month for available water for fire purposes, and there is no mention of minimum charges in the contract for the use of industrial and drinking water that shall be required by the defendant except that the amounts due for such water used by the defendant as required shall be paid to the plaintiff at rates from time to time approved by and on file with the 'Public Service Commission of West Virginia. Those rates are subject to change at any time by order of the Public Service Commission which has continuing jurisdiction to control rates and charges for public utilities.
After the Public Service District was set up certain reconstruction work around the area of the airport was undertaken in such manner that if the large line from the Public Service District to Vitro was not first laid its later installation would be more costly and inconvenient. Inasmuch as the Public Service District did not have enough money on hand, Vitro, in order to obtain water from it at the earliest possible time, loaned the Public Service District $16,500 with which to build the line. This was later paid off by the Public Service District. The line to the Vitro plant, before the plant used water, served only two small residential customers at that time. The 6x3x3/4 inch meter called for in the contract was then installed and water was furnished to the plant on August 1, 1959.
The continued operation of the Vitro plant did not prove feasible for reasons that are not clear in the record. However, a prolonged strike no doubt had some bearing on the matter and it never realized full operation. Apparently, there were never more than 300 men employed at its operation whereas it was contemplated that it would employ about 700. The estimated water consumption for the initial employment of 300 people was about 9,480,000 gallons a year. The testimony of the consulting engineer for the Public Service District was that the fire protection feature determined the size of the pipe line built to the plant. Vitro apparently never used industrial and drinking water in sufficient amounts to exceed the minimum charge for which it was billed for several months and paid during the time the water was used by it when it was in operation. Vitro was separately billed for the amount for fire protection over which there is no dispute in the present case. It continued to pay each of these charges up until June, 1960, when it ceased operations and the water was cut off by the chairman of the Public Service District at Vitro’s request. The defendant continued to pay the $400 per month but ceased to pay the $275 at that time.
Before the defendant ceased to pay the $275 a month, objection had been made to the continuation of the minimum charge of $275 for industrial and drinking water. Certain correspondence was had in April, 1960, by the officials of the defendant company requesting information as to why they were being billed and were paying for water they were not using, at the rate of $275 a month. On June 21, 1960, local counsel in Martinsburg for the defendant addressed a certified letter to Mr. Gail W. Updike, Chairman of the Public Service District, notifying him that the defendant would not pay for any more industrial and sanitary water because none was required and requesting that valves be turned off leading into the plant. Mr. Updike turned off the valve as requested on June 30, 1960. He testified that he had the authority to do so, although other witnesses connected with the Public Service District denied that he had such authority. There is no evidence in the record indicating any corporate action prohibiting the chairman of the Public Service District from having such authority, and it may be presumed that he had authority to take such action. The turning off of the valve on the line furnishing water to defendant’s plant resulted in complicating events. The line which went to the remainder of the property around the area of the airport came off the same valve that, led to the defendant’s plant. The closing of this valve would have cut off the water to other places where no dispute existed. The chairman of the Public Service District discussed this matter with the East Coast Flying Service which was subleasing a part of the premises from the defendant, and it was decided by them that a new two inch line should be built to the East Coast Flying Service with a new separate meter in order that it could obtain water through its own line after the large pipe line into the defendant’s plant was closed. This was accordingly done under the supervision of the chairman of the Public Service District and the East Coast Flying Service was billed separately from that time on for water used by it through its own meter. Defendant’s plant was locked and not thereafter entered by any representative of the Public Service District for about three years and it was believed by all that the defendant was receiving no water. A caretaker was employed by the defendant to look after its closed plant, and he assumed that no water was in the defendant’s pipes; and in order to keep the fire protection pumps and water fines, which were still available for use, from freezing, he maintained a low level of steam boiler heat by the process of having water hauled into the plant in tanks, placed on a higher level, and allowed to run down by garden hose into the boilers.
After a considerable period of time, perhaps in 1963, both the caretaker and a representative of the Public Service District, who for some unknown reason was in the defendant’s plant with the caretaker, happened to turn a spigot in the building and discovered that to their surprise it had water in it under pressure. The only way this could be explained by witnesses familiar with the aspect of the property was that a small water line apparently existed from the East Coast Flying Service building to the main building of the defendant which may have been buried there before even the Public Service District was organized at a time when other water was used by the defendant. This line was apparently forgotten and it still fed water from the East Coast Flying Service meter over to the next building which was approximately 100 feet away. It was admitted by all of those familiar with the matter that this water if used in the Vitro plant would have been charged to the East Coast Flying Service account. As a result a confused situation exists in which the plaintiff is attempting to collect for water as if left connected that its chairman had cut off at the main valve leading to the defendant’s plant in such manner that he believed that no water could have been used, although the plaintiff now questions his right to take such action; but the actual situation was that the water was still on from another meter which was unknown to the defendant. Consequently, we have a situation in which the physical facts were the exact opposite of what each party thought they were.
The trial court also found and declared over the objection of counsel for the defendant and carried into the judgment order, the statement that the defendant was required to pay the minimum charge of $400 a month for the next forty years for the fire protection water referred to in the contract unless adjusted in accordance with the contract. The defendant assigns this action as error on the part of the trial court because no request was made for such decision and such matter was not before the court.
The mere fact that parties do not agree to the construction of a contract does not render it ambiguous. The question as to whether a contract is ambiguous is a question of law to be determined by the court. Whiting Stoker Co. v. Chicago Stoker Corporation, 171 F. 2d 248. See In the Matter of the Estate of Elmer Resseger, Deceased, Mary E. Resseger, etc. v. G. Thomas Battle, etc., 152 W. Va. 216. (Decided by this Court 5-28-68).
Extrinsic evidence may be used to aid in the construction of a contract if the matter in controversy is not clearly expressed in the contract, and in such case the intention of the parties is always important and the court may consider parol evidence in connection therewith as to conditions and objects relative to the matters involved. Jackson Hill Coal & Coke Co. v. Merchants Heat & Light Co., 193 Ind. 422, 140 N. E. 532; Ruth-Hastings Glass Tube Co. v. Slattery, 266 Pa. 288, 109 A. 695. However, where the language of a contract is clear the language cannot be construed and must be given effect and no interpretation thereof is permissible. State ex rel. Ashworth v. Road Commission, 147 W. Va. 430, 128 S. E. 2d 471.
This matter is succinctly stated in the fourth point of the syllabus in the case of Cotiga Development Company v. United Fuel Gas Company, 147 W. Va. 484, 128 S. E. 2d 626, wherein it is stated: “The rule relating to practical construction of provisions of a written instrument by the conduct of the parties thereto, like other rules of construction, may be resorted to by a court only when the parties have failed to express their intent in clear and unambiguous language; and such rule of construction can never be used to change the legal effect of clear and unambiguous language.” The type of contract involving purchases of amounts “as required”, “as necessary”, and synonomous expressions are called in law “requirements contracts”. The present case illustrates one of that category.
Requirement contracts are approved by the authorities but must be administered and complied with in good faith. Annotation 7 A. L. R. 498 et seq.; Annotation 26 A. L. R. 2d 1099 et seq.; Smoot v. United States, 237 U. S. 42, 35 S. Ct. 540, 59 L. Ed. 829; Mathieson Alkali Works v. Virginia Banner Coal Corp., 147 Va. 125, 136 S. E. 673; Elk Refining Co. v. Falling Rock Cannel Coal Co., 92 W. Va. 479, 115 S. E. 431. In construing a requirement contract the test, as Justice Holmes once said, is what is the “obviously dominant measure”, and if the language of such contract clearly makes it a “requirement” contract then the only thing for which parol evidence can be introduced is to establish what are the requirements. Smoot v. United States, 237 U. S. 42, 35 S. Ct. 540, 59 L. Ed. 829; Mathieson Alkali Works v. Virginia Banner Coal Corp., 147 Va. 125, 136 S. E. 673.
In the West Virginia case of Elk Refining Co. v. Falling Rock Cannel Coal Co., 92 W. Va. 479, 115 S. E. 431, the contract in effect was for the furnishing of a certain product that might he needed by the Refining Company. However, it referred to a period of ten years and also to the quantity needed for certain purposes. Although the contract did not use the words requirement or shall require, by implication its place was in that category and the reason for parol evidence was to ascertain whether or not more than the quantity referred to in the contract had to be supplied and in that case it was held that the extrinsic evidence introduced by the parties established their interpretation of the agreement because the defendant continued to supply over a long period of time many times more than the quantity of the product mentioned.
The pleading in the declaratory judgment proceeding in the case presented here is clearly limited to the provisions of paragraphs 3 and 4(b) of the contract entered into by the parties on November 18,1958, because the pertinent part of the allegations in the complaint, after referring to the contract, reads as follows:
“* * * 4. Defendant has paid to the plaintiff all sums of money due and owing to plaintiff, up to and including the 30th day of June, 1960, from which time, to date, defendant refuses to comply with the terms of said agreement, in this, that it refuses to pay to the plaintiff the minimum monthly charge for water, required by the terms of paragraphs 3 and 4(b) of said agreement, which is the monthly sum of $275.00 and although often demanded and requested of it, defendant refuses to pay any further sum or sums of money under the aforesaid paragraphs of said agreement to plaintiff. * * *
“WHEREFORE, plaintiffs demands judgment:
“1. That the aforesaid agreement, to-wit, Exhibit ‘A’, be construed and interpreted.
“2. That the rights and obligations of the parties hereto, under said agreement, and in particular under paragraphs 3 and 4 (b) be declared and fixed.
“3. Against the defendant, in favor of the plaintiff in an amount equal to the sum of money due and owing to the plaintiff, in accordance with the declaration and determination of the rights and obligations of the parties hereto, as aforesaid, at the time of such determination or declaration, with interest and costs.”
No reference is made to any provisions of the contract except by paragraphs 3 and 4(b), and no sum of money was due and owing to the plaintiff at the time the complaint was filed, except under paragraphs 3 and 4(b), and there was no controversy with regard to any other provisions of the contract as the parties had apparently agreed with regard to the other provisions. The trial court therefore returned a declaratory judgment for more than was requested by the plaintiff over the objections of the defendant.
Inasmuch as the only provisions of the contract in controversy at this time are paragraphs 3 and 4(b), they are again quoted as follows:
“3. Berkeley shall further furnish to Vitro, at a 6x3x3/4 inch meter located at said Plant, such amounts of potable water for industrial and sanitary purposes as Vitro shall require at Berkeley’s normal flow and pressure for which Vitro shall pay Berkeley at the rates from time to time approved by and on file with the Public Service Commission of West Virginia.
“ (b) The term of this contract for water service for industrial and sanitary purposes referred to in paragraph 3 hereof shall be deemed to begin on such date Berkeley shall first make available to Vitro its water service for these purposes, and shall continue in force and effect for a period of at least forty (40) years thereafter.” [Emphasis supplied.]
In plain language, these provisions provide for the plaintiff to furnish potable water for industrial and sanitary purposes to the defendant, as it shall require, for a period of 40 years, and the defendant agreed to pay for such water at the rates from time to time fixed by the Public Service Commission of West Virginia. There is no minimum rate fixed in the contract for the industrial water as is fixed for the water for fire purposes, and the only reference to a minimum charge is contained in the Public Service Commission order of January 28, 1958, after the rates for the furnishing of such water were set out. This order of the Public Service Commission was proper to be proved by parol evidence in the trial of this case because it was incorporated by reference in the contract. Mathieson Alkali Works v. Virginia Banner Coal Corp., 147 Va. 125, 136 S. E. 673. The provisions of the contract contained in paragraph 3 allowed the rates to be changed at any time by the Public Service Commission of West Virginia and the order of the Public Service Commission dated January 28, 1958, as amended by the order of April 10, 1958, allowed such rates to be negotiated by the parties at any time. The clear and unambiguous language contained in paragraph 3, which needs no construction or interpretation, is that the plaintiff shall furnish industrial water to the defendant as it shall require. This last phrase is the “obviously dominant measure” contained in the contract with regard to the matter in controversy. The provision for the payment for such water is subservient or incidental and if the defendant required no water there would be no charge, minimum or otherwise. However, under the terms of the contract contained in paragraph 4 (b) if the defendant required water it would have to pay for it at the agreed rate for a period of 40 years unless otherwise negotiated and the plaintiff would have to furnish it for such period of time if it remained in the business of furnishing water. Annotation 7 A. L. R. 498; Mathieson Alkali Works v. Virginia Banner Coal Corp., 147 Va. 125, 136 S. E. 673.
Under a requirement contract there is no duty on the part of the buyer to have any requirements and when a buyer’s plant is closed or his activities changed in good faith for valid business reasons there are no requirements for water or whatever commodity is being sold; and there can be no recovery under a requirement contract for furnishing water where there is no water required and none furnished. Annotation 7 A. L. R. 498, 507; Drake v. Vorse, 52 Iowa 417, 3 N. W. 465; Fort Wayne Cor. Paper Co. v. Anchor Hocking Glass Corp., 130 F. 2d 471. Inasmuch as it clearly appears that the requirement ■ provision in the contract in the case at bar is a dominant provision, and this has been held to be the guiding rule in the decisions of such cases, there is no need for any construction or interpretation of the contract and the plain words of the contract must be applied. There being no requirement by the defendant for any water after it closed, there can be no recovery for any minimum charge or any other charge for unused water. Annotation 26 A. L. R. 2d 1099, 1123; Smoot v. United States, 237 U. S. 42, 35 S. Ct. 540, 59 L. Ed. 829; Mathieson Alkali Works v. Virginia Banner Coal Corp., 147 Va. 125, 136 S. E. 673.
The fact that the defendant paid the minimum charge of $275 a month for almost a year would have no effect on the right of recovery by the plaintiff where there was absolutely no requirement for the furnishing of water. However, because of the fact that the defendant paid the $275 a month without protesting for several months and did not use the minimum requirement it may well be that by virtue of acquiescence in such payments it would be bound to continue paying the $275 a month if it continued to require water at its plant. Elk Refining Co. v. Falling Rock Cannel Coal Co., 92 W. Va. 479, 115 S. E. 431.
The fact that the trial judge was attorney for the City of Martinsburg when negotiations were made for the sale of the property to the defendant, or its predecessor, did not disqualify him from sitting in the case at bar because such negotiation had nothing to do with the issue presented before him in this case. Therefore, there was no merit to defendant’s motion or request for him to disqualify himself. 48 C. J. S., Judges, §79; 30 Am. Jur., Judges, §§101, 102; 11 M. J., Judges, §14; State ex rel. Ashworth v. State Road Commission, 147 W. Va. 430, 128 S. E. 2d 471; Cotiga Development Company v. United Fuel Gas Company, 147 W. Va. 484, 128 S. E. 2d 626.
It was clearly error for the trial court to allow the witnesses who testified on behalf of both the plaintiff and defendant to give their interpretation, or construction, of the contract. This is a matter of law for the court to decide. The extrinsic evidence relating to the background and negotiations with regard to the forming of the Public Service District would only be proper where the language of the contract upon which the decision is necessary is ambiguous; but where, as in the case at bar, the language is clear and unambiguous that the plaintiff shall furnish water as the defendant shall require, there is no need for such extrinsic evidence. State ex rel. Ashworth v. State Road Commission. 147 W. Va. 430, 128 S. E. 2d 471; Cotiga Development Company v. United Fuel Gas Company, 147 W. Va. 484, 128 S. E. 2d 626. It was, of course, proper to introduce evidence of the order of the Public Service Commission which was incorporated by reference in the contract. Mathieson Alkali Works v. Virginia Banner Coal Corp., 147 Va. 125, 136 S. E. 673.
It was not error for the trial court to admit evidence that the defendant had loaned the plaintiff $16,500 to facilitate the laying of pipe to the defendant’s plant in order to furnish it with water. This evidence had little bearing on the issue and, in such case, has been held to be proper in showing the background of the contract. Mathieson Alkali Works v. Virginia Banner Coal Corp., 147 Va. 125, 136 S. E. 673.
It is noted from the opinion of the trial court contained in the record which can be considered by this Court in order to determine the basis or reason for the court’s decision, that it recognized at the time the summary judgment was disposed of that the only issue involved was the construction of paragraphs 3 arid 4 (b) relative to the payment of the minimum charge of $275 per month for industrial water. Sargent v. Malcomb, 150 W. Va. 393, 394, 146 S. E. 2d 561; Work v. Rogerson, 152 W. Va. 169, 160 S. E. 2d 159, (decided by this Court March 26, 1968). It therefore appears from the record in the case at bar that the defendant’s motion for a summary judgment of March 26, 1964, based on the complaint and contract which was filed as Exhibit A at the time the summary motion was made should have been granted by the trial court since the answer to the complaint and the motion itself clearly showed that the plant was closed and there was no need for industrial water. See Rules 12c and 56c, R. C. P.; Aetna Casualty and Surety Co. v. Fed. Insurance Company of New York, 148 W. Va. 160, 133 S. E. 2d 770; Employers’ Liability Assurance Corp. v. Hartford Accident and Indemnity Co. and Jewell Ridge Coal Corp., 151 W. Va. 1062, 158 S. E. 2d 212, (decided by this Court December 21, 1967).
For the reasons stated herein, the judgment of the Circuit Court of Berkeley County is reversed and a new trial is awarded to the defendant.
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Woods, Judge:
On a former appeal in this case, we held that the declaration stated a good cause of action for an action of trespass on the case to recover damages sustained in the purchase of coal stock, at the instance and on the false and fraudulent representations of the defendant. Horton v. Tyree, 102 W. Va. 475. The grounds and facts upon which the ease was predicated were therein set out at length in the opinion of the court, making further recital thereof unnecessary here. The ease was tried to a jury, resulting in a verdict for the plaintiff. This verdict on motion of the defendant was set aside by the court and a new trial awarded. The plaintiff challenges the correctness of this action by the present appeal. The major errors assigned are that the court erred (1) by setting aside the verdict, and (2) in refusing to render judgment in favor of the plaintiff against the defendant on said verdict.
The issues involved were sharply drawn by the instructions submitting the case to the jury. At the instance of the plaintiff the jury were told in instruction No. 3, if they believed from the evidence in the case that the plaintiff subscribed for and became the purchaser of the 89 shares of capital stock in the Mountain State Coal Corporation, from C. T. Benton at the price of $8,900.00, and believed further from the evidence that in the negotiations leading up to the purchase of said stock the defendant Tyree, in substance represented' and stated to the plaintiff that said stock was a good buy; that the engineer’s reports on the property showed it to be worth six for one, and,if they believed said statements and representations were false, and that the plaintiff believed them to be true and relied thereon, and on account thereof was induced and led to subscribe for and become the purchaser thereof, then the plaintiff was entitled to recover from the defendant the difference between what the stock was actually worth at the time of the purchase and the amount which the plaintiff paid therefor, together with interest thereon to date. The vice of this instruction, maintains the defendant, is that it fails to state that the defendant knew his representations were false at the time of his making them, or that they were made by him with reckless disregard of the truth.
This question has been settled in this court by numerous adjudications. These cases announce the rule to be that where one to whom a representation has been made as an inducement to enter into a contract, he has the right to rely upon it as true quoad the maker and need make no further inquiry. If he does so rely upon it, and it turns out to be untrue, and he is injured thereby, the party making the representation is liable for the damages, which may be recovered in an action of deceit. Hervey v. Crouch, 97 W. Va. 161; Osborne v. Holt, 92 W. Va. 410; Staker v. Reese, 82 W. Va. 764. The essential elements of such action, as announced in the Hervey case, are: (1) that the act claimed to be fraudulent was the act of defendant or induced by him; (2) that it was material and false; that plaintiff relied upon it and was justified under the circumstances in relying upon it; and (3) that he was damaged because he relied upon it. Whether the defendant made the. statement imputed to him, knowing it to be materially untrue, and for the fraudulent purpose of deceiving the plaintiff as charged in the declaration, we need not inquire, for it is not, in order to maintain this action, indispensable that the defendant be shown to have known the statement was false. For it is elementary doctrine that a false representation may be made scienter, so as to afford a right of action in damages, in contemplation of law, in any of the following ways: (1) with actual knowledge of its falsity; (2) without knowledge either of its truth or falsity; or (3) under circumstances in which the person making it ought to have known if he did not know of its falsity. State v. Berkeley, 41 W. Va. 458; 1 Biglow, Frauds, 509. A representation in respect to a matter, with the intent to influence the conduct of another, implies necessarily the belief of the party making it that the statement is true. If the fact be within his means of knowledge, and he have no knowledge of the fact, a jury would be authorized to believe that the statement was knowingly false. The question of whether the defendant should know the falsity of his representations was squarely met in Osborne v. Holt, supra. It was there held that one who represents that a certain condition exists with the expectation that another will act thereon, when in fact he has no knowledge'and regard thereto, will be as liable to another who deals with him on the basis of such representation, should it turn out to be' false, as though he knew of the falsity thereof at the time it was made. ‘ ‘ He' is under a duty to know”, said the court, “that the things he represents as facts are" in fact true at the time he makes the representation. It is no excuse for him to say that he did not know they were false,” citing in support thereof the decided eases of Stout v. Martin, 87 W. Va. 1; James v. Piggott, 70 W. Va. 435; Tolley v. Poteet, 62 W. Va. 231; Crislip v. Cain, 19 W. Va. 438.
The defendant makes the further objection to the instructions that the plaintiff’s right is based upon the supposed statement that the stock “was a good buy”, as well as upon the statement that the investment “would pay a dividend of 25% ”. The point made is that these quoted statements were opinions and not statements of fact. Ordinarily this is true when men are dealing at arms length, but there are exceptions to this rule, as where a seller misrepresents the quality or value of the thing sold to be other than it is, in some particulars, which the buyer has not equal means with himself of knowing. Camicia v. Iafollo, 89 W. Va. 422; Vernon v. Keys, 12 East. 637; 20 Oyc. p. 58, and cases cited in Notes 51 and 52. But, it is often a close question whether a statement or representation put forward by the seller to induce •a purchase is a statement' of fact or the mere expression of an opinion as a consideration of the decided cases amply show. The modern cases show a strong tendency to refuse to extend the rule further than it has been carried by previous decisions with respect to “dealer’s talk”; the courts generally taking the view that a vendor guilty of a representation made with intent to deceive should not be heard to say that the purchaser ought not to have believed him. 20 Cyc. 62; Cottrill v. Krum, 100 Mo. 397; Speed v. Hollingsworth, 54 Kan. 436; Riley v. Bell, 120 Iowa 618; Watson v. Molden, 10 Idaho 570; Arnold v. Teel, 182 Mass. 1; Schumaker v. Mather, 333 N. Y. 590; Roberts v. Holliday, 10 S. D. 576; Wright V. Mortgage Company, (Civ. App. 1897 Tex.) 42 S. W. 789; Tacoma v. Light Company, 17 Wash. 458. The representation that the stock was a “good buy” in the third instruction was coupled with the statement of a fact by a person presumably familiar with the coal property. Such representation would be regarded with reason as an honest appraisal, and according to all business experience it would usually be received as a circumstance of great weight. A like statement may be made concerning the expression that the investment “would pay a dividend of 25% on the stock of said corporation” contained in instruction No. 4. The statements made, which the defendant complains as being matters of opinion, are linked together, each with a plain statement of a misrepresentation of fact, and the jury’s finding is dependent upon their belief in the truth of both. The first statement was merely introductory to the statement of fact declared on in the first instance, while the second statement was a conclusion of a representation of fact. Neither instruction authorizes recovery alone upon the statement maintained by the defendant to be merely opinion. Hence it is unnecessary to determine their legal status here.
The defendant urges the same objections to instruction No. 4. It contains all the elements of the instruction just discussed. But it is merely based on the other representation in the declaration that the defendant “in substance represented and stated to the plaintiff that a contract had been made for a sale of the output of the coal from the mining operations on the property of the said corporation for the year 1921 at $6.50 a ton, and that this would pay a dividend of twenty-five per cent, on the stock of said corporation,” charging their falsity and that the plaintiff acted upon them to his hurt. The reasons we have given for holding instruction No. 3 good, apply also to this instruction.
Instruction No. 8 is assailed. It told the jury in effect that if they believe from the evidence that the defendant made the representations claimed by the plaintiff in his declaration for the purpose of inducing the plaintiff to purchase the stock mentioned, or under such circumstances that the defendant must have known sueb representation would likely be relied upon by the plaintiff, and if they believe such representations were untrue, that the plaintiff, without knowing that such representations were untrue, relied upon them, to his disadvantage, then the plaintiff was entitled to recover the damage suffered by him, notwithstanding the defendant, in making the representations, had no actual knowledge of the real conditions, at the time, but if they believe he made such representations, then he was under a duty to know that the things he represented as "facts were in fact true at the time he made such representations, and that it was no excuse for him to say that he did not know that they were false. This instruction very clearly states the law as we have already shown. Osborne v. Holt, supra.
The issue of whether Horton acted upon the representations of Tyree or relied on the written contract made by Benton in which he agreed to take back Horton’s stock at the end of ninety days at $1.10 per share is dealt with in instruction No. 9 for the plaintiff. The jury were advised that it would not preclude a recovery, even though they may believe that the plaintiff also relied upon such written contract. The converse of this proposition was given to the jury that, if the defendant made the representations, yet if the plaintiff did not rely upon such representations, and that the inducement for the purchase of said stock by the plaintiff was the written agreement of Benton to re-purchase, then they should find for the defendant. Thus the issue was clearly defined. It is not necessary that the fraudulent representations complained of should be the sole consideration or inducement moving the plaintiff. If the representation contributed to the formation of the conclusion in his mind, that is enough, although the agreement operated in bringing him to the same determination. 12 B. C. L. 358; Iron Company v. Trout, 83 Va. 397. It has been held that, even where one would not have entered into a contract without a guaranty covering the matters as to which representations had been previously made, this constituted no waiver of his right to rely upon such representations. Busch v. Wilcox, 82 Mich. 336. The court there, in speaking of a guaranty that had been made, said: “The testimony is very strong in that direction. But Busch (plaintiff) also testifies that he relied upon the representations made by Mr. Hall (defendant’s agent), and we cannot say that he did not rely upon both. It does not seem to us that because he would not have entered into the contract without Hall’s guaranty, such fact was a waiver of his right to rely upon the prior representations made by Hall, whatever may have been the value of such verbal guaranty in a legal point of view.” This is on all fours with the ease here. The jury were properly instructed on this point.
The action of the court in refusing to give defendant’s instructions Nos. 1, 2, 3, 4 and 5 is complained of. The first of these instructions stressed the point that the defendant must have knowledge of the falsity of his statements and in the remainder that the statements complained of were matters of opinion and not actionable. These questions already have been determined in our- consideration of plaintiff’s instructions. It was not error to refuse them. Defendant’s instruction No. 6 was to the effect that if the jury believed that any of the witnesses testified falsely as to any material fact, they have a right to disregard all the testimony of such witness so testifying falsely, or to give his testimony, or any part thereof, such weight only as in their opinion the same may be entitled to. While this instruction has been often given it is open to criticism, according to State v. Lee, 103 W. Va. 631; 138 S. E. 324, because it fails to limit the words “testified falsely” with some qualifying word such as “wil-fully”, “knowingly”, or “corruptly”. Still its- giving has never been held to be reversible error. However, instruction No. 9, offered by defendant, states the same proposition of law, using the qualifying word “wilfully”. So, a proper instruction was refused. However, we find the court gave on its own motion an instruction to the effect that in weighing the evidence the jury had a right to take into consideration the interest-of any witness in the result of the suit; the bias or prejudice of any witness, if any be shown upon the witness stand; the demeanor of the witness upon the stand; the reasonableness or the unreasonableness of the statements of the witnesses; and -give to the evidence of each and every witness such weight as a jury may believe it justly entitled to. While this does not reach the precise point aimed at by the defendant in the instructions he offered, in a general way it achieved the purpose. It focused the attention of the jurors on the weakness or strength of the testimony of the individual witness. Considering the issues and the evidence, we are not convinced that the failure of the court to give this instruction affected the verdict to the prejudice of the defendant.
The defendant cites as error the court’s refusal to admit evidence going to show his general good character. It will be observed that such evidence was not limited to his reputation for truth and veracity, but the inquiry required the witness to respond to what his reputation was as “to truth and veracity, honesty and integrity”- — general in character. The rule in England, and in the courts of this country, generally is that such evidence is admissible only in criminal cases where the question of criminal intent is one to be found by the jury. Hess v. Marinari, 81 W. Va. 500, is cited by defendant in error as supporting his claim that such evidence was admissible here. This case holds that it -is only admissible in civil cases where it is necessary to plaintiff’s recovery that he prove against the defendant facts which constitute a crime, and that in order to such recovery the defendant must have had criminal intent when he did the acts complained of. Such is not the case we have under consideration. So, it will be observed that it was admitted in the Hess ease for the purpose of overcoming the proof offered to show criminal intent — the very reason for which the boohs hold it to be admissible in criminal cases. It is generally held inadmissible, by way of defense, in civil actions for damages for making false representations. 12 R. C. L. 429. This rule is held to extend to civil actions in which.a party is charged with specific fraud. Fowler v. Aetna Ins. Co., 6 Cow. 673; Norris v. Stewart’s Heirs, 105 N. C. 455; Simpson v. Westenberger, 28 Kan. 756; Stone v. Hawkeys Ins., 68 Iowa 737. Defendant’s counsel say that the character of the defendant is put in issue here, because the plaintiff accused him of fraud. Tilghman, C. J., in Anderson v. Long, 10 Serg. & R. 61, said: ‘ ‘ But that is not putting character in issue." By the same mode of reasoning, the defendant’s character is put in issue, in every action of assumpsit, because the declaration charges him with an intent to deceive and defraud the plaintiff. * * * But it has never been supposed that character is put- in issue merely by the charge of fraud, made by one party against the other.” If such evidence is proper, then a'person may screen himself from punishment due to fraudulent conduct till his character becomes bad. Such a rule of evidence would be fraught with danger. Every man must be answerable for every improper act; and the character of every transaction must be ascertained .by its own circumstances, and not the character of the parties.
Other questions raised relate to the introduction of evidence. In its essence Horton’s action is a common law action for deceit. His complaint, in substance, is that he . has been led into the purchase of 100 shares in the Mountain State Coal Corporation, which has proven a most ruinous- investment, and that he was induced to buy through reliance upon the certain false representations made by the defendant, whereby he lost his money. Benton was the guiding spirit of the corporation. He was introduced to Horton -by the defendant Tyree on the day the representations were made (on which Horton was led to subscribe for the stock) as “my friend, Mr. Benton, who owns 2690 acres of coal land, which I (Tyree) sold to him cheap, which by engineer’s report it had been found that the land was worth six for one.” (Meaning, that it was worth six times what Benton paid for it). Benton had executed an agreement with Horton that, if he was not satisfied with his purchase, he would return Horton’s note at the end of ninety days, and take the stock back at $1.10 a share. Horton testified that a short time thereafter he went back to Tyree and asked him about Benton. Thereupon there was introduced in evidence the following testimony: “Q. What did he tell you? A. I asked Mr. Tyree where Mr. Benton got all of this money, and he said that Mr. Benton was a coal operator, that he was an expert accountant, that he audited the books for large coal companies and got large fees, as high as $5,000 or $10,000 as a fee for straightening out these books, and that,he was also a trader, and I said, ‘What is Mr. Benton worth?’ and he said ‘A quarter to half a million dollars’. Q. How did you feel about this transaction after getting this additional information from Mr. Tyree? A. I felt perfectly satisfied. Q. Did you believe that statement -to be true? A. I did. Q. Did you rely upon it? A. I did.” The relevancy of the foregoing testimony is questioned. Tyree denies in toto having made the statements charged in the declaration to be false representations. Horton claims that the memorandum Benton gave to him to repurchase the stock provided he was not satisfied with it, was given in the presence of Tyree, who had told Horton on the day it was given that from his investigation he considered Benton’s contract good.. As a general rule evidence of the subsequent acts and dealings of a party charged with fraud is admissible .if it tends to establish the fraud charged, or as a circumstance to show fraudulent intent. 27 C. J. 50; 12 R. C. L. 430; Salmon v. Richardson, 30 Conn. 360; Lowance v. Johnson, 75 W. Va. 784; Osborne v. Holt, supra; Staker v. Reese, supra. Great latitude is permitted in the introduction of evidence in such cases. The last cited case was such a ease as we have here, but based upon fraudulent misrepresentations made by a director of a corporation inducing another stockholder to sell his stock at less than its worth. There the seller went back to the defendant, upon whose statements he had relied in making the sale of his stock, and asked him further about the negotiations leading up to the sale. On this occasion, subsequent to the alleged fraudulent transaction, Reese “reiterated the statement that he had told him the entire truth in that regard”, i. e., the first representations he had made in regard to the stock. So, we believe it was not error to admit this testimony.
The other exception by the def enddnt to testimony admitted by the court relates to the introduction of the record in the receivership case, whereby the property of the Mountain State Goal Corporation was sold; the basis for this exception being that such documentary evidence was irrelevant. According to Horton, the complained of transaction took place on November 15th, 1920. Before the ninety day note he gave as a consideration for the stock purchased became due Benton had disappeared. A creditors’ suit thereupon was instituted against said corporation, and on December 24, 1920, the property of this company was put in the hands of a receiver. ■The cause was referred to a commissioner whose report showed a large indebtedness of the company, and a decree was entered directing the sale of the property to satisfy such indebtedness. This is the record introduced in testimony. The declaration contains a statement of all the facts touching the alleged fraudulent transaction. The record of the receivership case adverted to is set out therein. • Properly construed, the declaration authorized proof' of the transaction from the. inception to the final consummatidn 'of it. Averill v. Boyer, 76 W. Va. 642. The chief objection to the record is to that part of it showing the amount for which the property was sold — $25,000.00. However, this was met before the jury by evidence introduced by the defendant to the effect that it was purchased by those who had an equity in the property to the extent of over $200,000.00; that since the time of the sale of the stock to Horton, a soaring coal market had broken and coal bringing from $6.00 to $20.00 a ton then became a drug on the market at any price. Of course, the jury were limited by the instruction of the court in fixing the value of the stock to the difference between what said stock was actually worth at the time Horton ’ acquired it, and the amount which he actually paid therefor. 12 R. O. L. 456. In view of the wide scope of the evidence admitted by the court, we cannot see that the jury were misled into believing the property of the said corporation sold for its real value at the receiver’s sale. What it brought there was only a circumstance to be considered along with all the other evidence of the case as to the real value at the time of making the alleged misrepresentation. In Osborne v. Holt, supra, evidence of the foreclosure oí a deed of trust, and sale thereunder, was offered, admitted and considered by the jury. The'evidence there went, as here, to show the full extent of the loss of the plaintiff from his investment.
While the testimony taken in this ease is quite voluminous and very conflicting- in regard to such issues as the defendant’s knowledge of the facts, his representations, etc., yet a careful consideration of the same discloses sufficient evidence to support every material allegation of plaintiff’s declaration (see Horton v. Tyree, supra, regarding sufficiency of declaration). It was purely a matter for jury determination. So, in view of the fact that the jury, under proper instructions, have found for the plaintiff, and the further fact that the trial court committed no substantial error in the rejection or admission of evidence, we reverse the judgment of the circuit court, reinstate the verdict of the jury, and enter judgment here for the plaintiff.
Reversed; judgment here. | [
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Riley, Judge:
This is an action at law of trespass on the case instituted by Walter M. Meyn against the Dulaney-Miller Auto Company, a corporation, and Bart Scanlon, to recover damages for personal injury growing out of an automobile accident. To a judgment based on a verdict in the amount of $28,000.00, rendered in favor of the plaintiff and against both defendants, the defendants obtained this writ of error.
About 11:55 P. M., July 13, 1934, the plaintiff was struck and injured by an automobile driven by the defendant, Scanlon, and owned by the defendant, Dulaney-Miller Auto Company. The accident occurred on Market Street, one of the main streets in the City of Wheeling, between Twelfth and Eleventh Streets. At the time of the accident, the plaintiff,' according to his own story, was proceeding across Market Street from the easterly to the westerly pavement in a diagonal direction at an angle of about thirty degrees north of west. At this place, there was no crosswalk. The traffic ordinances then in force in the City of Wheeling provided:
“ (a) Pedestrians shall cross streets at crosswalks or at end of block; and where there is no traffic officer, traffic light or other traffic controlling device, and where full view of the crosswalk is not obscured from the view of the on-coming vehicular traffic, the pedestrian shall have the right of way; provided, however, that this right is restricted to mean that the pedestrian shall exercise all due precaution in crossing and be heedful of the difference in distance covered by a mechanical-driven vehicle and a pedestrian in the same period of time.
“(b) Every pedestrian crossing a roadway at any point other than within a marked or unmarked crosswalk shall yield the right-of-way to vehicles upon the roadway, provided that this provision shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of pedestrians.”
The Dulaney Company was engaged in the business of selling automobiles, new and used. Scanlon was in charge of, and also a salesman in, the company’s used car department. He was paid a salary of $100.00 per month to operate the department with commissions of two per cent on sales made by him personally, and one per cent on sales made by salesmen under him. He could sell used cars, including the car in which he was driving at the time of the accident, at all times of the day or night, although his regular hours of employment were between 8:00 A. M. and 9:00 P. M. The used car department, according to custom, closed at 9:00 P. M. This department was located at the defendant company’s regular place of business at Twenty-third and Market Streets, a number of blocks directly south of the place of the accident. Scanlon had the right to use the car in question in going to, and returning from, his work. He also had the right to use it and other used cars for his company’s business and his own pleasure. However, he was expected to purchase his own gasoline when he used such cars for pleasure. At the time of the accident, Scanlon lived in the “Out the Pike” section of Wheeling, a residential section some distance from the defendant company’s location, the place of accident being on the route between the company’s place of business and Scanlon’s home.
On the night in question, Scanlon used the car to attend a Shriners’ picnic at Wheeling Park. From Wheeling Park, he took two young women, whom he met there, to their homes in Martin’s Ferry, and then returned to the Washington Restaurant in Wheeling, which restaurant is situated on Market Street a short distance south of the place of accident. He left the restaurant about 11:30 P. M., and drove south on Market Street in a direction opposite from his home to the street in front of the Delaney Company’s place of business for the purpose of assuring himself that the used cars belonging to the company had been removed from the street to their proper place of storage for the night. While there, he did not leave the car, but satisfied himself by a view from the driver’s seat. After he had assured himself, he drove north on Market Street toward his home, and incidentally, to the place of accident.
From its intersection with Twelfth Street to a point some distance north of the place of the accident, Market Street has an even width of approximately thirty-seven and one-half feet. It has sidewalks on each side, having a width of about thirteen and one-half feet. Approximately in the center of Market Street at the place where the accident occurred, there was a street car track. The eastern rail of this track was about sixteen and one-half feet west of the eastern curb of Market Street. On the west, the track was double rail. The distance, as shown by the map in evidence, from the northerly intersection line of Twelfth and Market Streets to the place where the plaintiff’s body was found immediately after the accident is approximately 140 feet, and to the place where the plaintiff testified he was struck by the defendant’s car, 120 feet. Although Market Street is a busy street of the City of Wheeling, it appears from the record that at the time of the accident, the traffic was light.
The plaintiff testified that when struck, he was proceeding across Market Street from the easterly to the westerly pavement in a diagonal direction at an angle of about thirty degrees; that he was proceeding in a northwesterly direction, and therefore had his back slightly to northbound traffic; that he looked south as he stepped off the curb to see about the traffic light at Twelfth and Market Streets, and found it réd for north and south traffic; that he walked slowly due to an operation which he had had some months before; that from the time he first stepped from the curb until he reached a point between the center of the car track, he kept his head turned southward watching the traffic; that in the center of the car track, he again glanced at the traffic light and found it still red; then he glanced to the north, and instantly was hit, knocked down, became unconscious and recalled nothing further about the accident. He further testifies that he did not see the defendant’s automobile approaching nor did he know what had hit him. The evidence showed that he had defective vision, which was corrected in one eye only. Plaintiff further testified that there was one automobile parked along the eastern curb of Market Street in front of the' Postal Telegraph Company’s office, a short distance to the north of him; but from the place where he first stepped off the curb to the intersection of Twelfth and Market Streets, there were no automobiles parked along said eastern curb. He is supported in this statement by the testimony of several witnesses, although he is contradicted by the testimony of the defendant and a number of other witnesses.
On the other hand, Scanlon’s account of the accident differs widely from that given by the plaintiff. Scanlon says that after leaving the Dulaney Company’s place, he proceeded northward along Market Street toward Twelfth Street; that at Twelfth Street, he was stopped by the traffic light being red; that he waited there until the light turned green, when he placed his car in low gear and proceeded in low gear for a distance of about fifteen feet north of the intersection line of Twelfth and Market Streets; tha.t he then shifted to, and continued in, second gear until he struck the plaintiff; and that when he struck the plaintiff, he was going at a speed of about fifteen miles an hour and the western wheels of his car were about three feet east of the eastern rail of the street car company’s tracks. He further testified that the plaintiff suddenly stepped from behind a car parked along the eastern curb of Market Street into his car, and was struck by its right fender; that he did not see the plaintiff until he was within fifteen feet of him; that upon seeing the plaintiff, he turned his car to the left in an effort to avert the accident; that at the time he saw the plaintiff, he saw the light of a car passing him in a southerly direction; that when he struck the plaintiff, he saw a dark, heavy object fall over the front fender of his car on the right; that he did not identify this object as being the body of the plaintiff. He further testified that when he saw the plaintiff, he turned his car to the left in order to avert the accident; that he did not see the plaintiff after he first saw him; and that “it might have been better if I had tried to stop, I might have cleared him then, I don’t know.”
The defendants claim that from the time the plaintiff stepped from the front of the parked car, Scanlon did not have time to stop or to avert the accident; that the plaintiff was dressed in a dark suit; that the lighting conditions were poor; and that it would be impossible, under the circumstances, to see a person dressed like the plaintiff at a distance of more than thirty-five feet. Plaintiff, however, produced evidence to the effect that lighting conditions were good; that a person could be seen crossing the street for a distance of one block, and upon cross-examination, Scanlon was caused to testify that he could see a person crossing the street for a distance of 150 to 200 feet. Scanlon also testified that with deflected beam, he could see 75 feet, and with bright lights he could see 150 feet.
The defendants further contend that the defendant, Scanlon, was driving at the rate of fifteen miles an hour. However, Scanlon’s testimony as to speed is contradicted by the testimony of one Ford, a defense witness, who testified that he was standing at the northeastern corner of Twelfth and Market Streets when Scanlon’s car passed north, and that the same was being driven at the rate of twenty-five to thirty miles per hour. The statement made to police officers by Scanlon that he was going from fifteen to twenty miles an hour was confined by the instruction of the court only to Scanlon’s liability.
The position is also taken that there was no negligence on the part of Scanlon. Defendants say that there is not sufficient evidence for the jury to consider on the issue of whether Scanlon failed to keep a proper lookout and whether he was going at an improper rate of speed. On both these questions, we have the conflict of testimony, as has been narrated just above. However, there are certain physical facts which should also be considered and which it was proper for the jury to consider. When the accident occurred, there were street lights along Market Street at intervals, every other light being lit, though their candlepower had been reduced by the city. The traffic at that time was comparatively light; the view up the center of Market Street, at least along that part of Market Street on which Scanlon said he was driving, was unobstructed. Immediately after being struck, Meyn’s body was found about twenty-four feet north of the place where he testified he was struck; and Scan-lon’s car was from three to twenty feet to the north of the body. In addition, the right headlight and the cross-bar in the front of Scanlon’s car were broken. Also, the accident caused a dent to be made on the right side of the hood. Several witnesses testified that a loud noise was created by the collision.
Undoubtedly, it was within the province of the jury to have accepted Scanlon’s version of the accident. Had they done so, their verdict would have been for the defendants. Such a verdict would have been warranted by the evidence. That, however, is not the situation which confronts this court. Here, we have a conflict of the evidence and a verdict in favor of the plaintiff. In determining whether this verdict should be sustained or set aside, it is necessary for us to consider whether or not there is sufficient evidence of probative force upon which, if taken as true, a jury composed of twelve reasonable men would be justified in sustaining the plaintiff’s theory of the case.
The question of the Dulaney Company’s liability is raised by the defendants. Counsel cite as error the action of the trial court (1) in submitting to the jury the question as to whether or not Scanlon was acting within the scope of his authority or employment; and (2) in instructing the jury that Scanlon was not an independent contractor. Immediately after plaintiff rested, J. M. Miller, vice-president and manager of the Dulaney Company, and Scanlon testified for the defendants. These witnesses at this time were examined and cross-examined only as to Scanlon’s relation to the company. Before any other testimony was introduced, the company rested its case.
The stipulation as to the company’s ownership of the automobile created a rebuttable presumption that he was acting within the scope of his employment. Ercole v. Daniel, 105 W. Va. 118, 141 S. E. 631; Jones v. Cook, 90 W. Va. 710, 111 S. E. 828; Shahan v. Jones, 115 W. Va. 749, 177 S. E. 774; 5 Am. Juris., 711, 844, secs. 373, 615; 74 A. L. R. 944. We need not restate in detail the circumstances bearing upon Scanlon’s relation to the company’s business. The jury, having decided that, at the time of the accident, Scanlon was acting within the scope of his employment, we are now concerned with the law of the case. Ordinarily, the owner of an automobile is not liable for injuries caused by a servant, while operating the car on his own business or pleasure, though the servant had the owner’s consent. 5 Am. Juris., 711, 713, secs. 373, 375; Reilly v. Connable, 214 N. Y. 586, 108 N. E. 835, L. R. A. 1916A, 954, Ann. Cas. 1916A, 656; Gardner v. Farnum, 230 Mass. 193, 119 N. E. 666, L. R. A. 1918E, 997; Weber v. Allen Co., 64 Cal. App. 274, 221 P. 663; Lund v. Olson, 183 Minn. 515, 237 N. W. 188. (See also cases cited, 22 A. L. R. 1397; 45 A. L. R. 478; 68 A. L. R. 1052; 80 A. L. R. 726.) This was Scanlon’s exact situation when he went to the Shriners’ picnic at Wheeling Park, and then took the young women home. The fact that he had a right to sell the automobile at the picnic and while there, was incidentally advertising the company’s business, did not bring him within the scope of his employment. He was on a “frolic of his own”. Kitz v. Scudder Syrup Co., 199 Ill. App. 605; Reynolds v. Buck, 127 Iowa 601, 103 N. W. 946; Lotz v. Hanlon, 217 Pa. 339, 66 A. 525, 10 L. R. A. (N. S.) 202, 118 Am. St. Rep. 922, 10 Ann. Cas. 731; Marsal v. Hickey, 225 Mass. 170, 114 N. E. 301; 5 Am. Juris., 718, sec. 380. But the situation changed when he left the Washington Restaurant and proceeded in a direction away from his home to his company’s place of business. While not directed specifically to inspect the used car department after it closed at nine o’clock in the evening, the record does not sug gest that he was prohibited from doing so. As the head of the used car department, he was responsible for its well-being. Nothing in the record suggests his responsibility ceased or was curtailed after the customary closing time. When he left the restaurant and started toward the company’s place of business, he left his own pleasure and was proceeding upon his master’s business. Clearly, while at the place of business and inspecting it, he was acting within the scope of his employment. If the accident had occurred while he was making the inspection, without doubt the company would have been liable. But what is the company’s liability when, having left the place of business, he started toward his home and had passed the Washington Restaurant on his way home? He had the right to use the car from the place of business to his home and back. Generally, where a servant has permission to use a car in order to better execute his business to go to and from his meals and home, he is acting within the scope of his employment. 5 Am. Juris., 718, sec. 379; 45 A. L. R. 490; 68 A. L. R. 1058; 80 A. L. R. 732; Goff v. Clarksburg Dairy Co., 86 W. Va. 237, 103 S. E. 58; Fisick v. Lorber, 95 Misc. 574, 159 N. Y. Supp. 722; Depue v. Salmon Co., 92 N. J. L. 550, 106 A. 379; Brennan v. White Motor Co. et al., 210 App. Division 533, 206 N. Y. Supp. 544; Kish v. California State Automobile Ass’n., 190 Cal. 246, 212 P. 27. Whether the driver of an automobile using his employer’s car to go to and from work is acting within the scope of his employment, is a question of fact for the jury. Goff v. Clarksburg Dairy Co., supra; Zondler v. Foster Mfg. & Sup. Co., 277 Pa. 98, 120 A. 705; Puccia v. Sevigne, 258 Mass. 234, 154 N. E. 765; Moore v. Roddie, 103 Wash. 386, 174 P. 648, modified, 106 Wash. 548, 180 P. 879; Wrightsman v. Glidewell, 210 Mo. App. 367, 239 S. W. 574; Ferris v. McArdle, 92 N. J. L. 580, 106 A. 460; Brennan v. White Motor Co. et al, supra; Butler v. Hyperion Theater Co., 100 Conn. 551, 124 A. 220; Dunbaden v. Castle Ice Cream Co., 103 N. J. L. 427, 135 A. 886. Likewise, it is generally a jury question-where an employee driving his employer’s automobile diverts from his master’s business and is in volved in an accident upon returning towards the master’s business. Reynolds v. Denholm, 213 Mass. 576, 100 N. E. 1006; Rooks v. Swift & Co., 210 Ala. 364, 98 So. 16; Good v. Berrie, 123 Me. 266, 122 A. 630; Bloodgood v. Whitney, 235 N. Y. 110, 139 N. E. 209; Gibson v. Dupree, 26 Colo. App. 324, 144 P. 1133; Riley v. Standard Oil Co., 231 N. Y. 301, 132 N. E. 97, 22 A. L. R. 1382; Cummings v. Republic Truck Co., 241 Mass. 292, 135 N. E. 134; Samuels v. Hiawatha Holstein Dairy Co., 115 Wash. 343, 344, 197 P. 24; Dale v. Armstrong, 107 Kan. 101, 190 P. 598; Edwards v. Earnest, 206 Ala. 1, 89 So. 729, 22 A. L. R. 1387. Under these authorities and sound logic, we think that if at the time of the accident Scanlon was going from his work immediately after regular working hours to his home, the jury would have been entitled to determine that he was working within the scope of his employment. But, on the night of the accident, while at the company’s place of business inspecting it, clearly, he was within the scope of his employment and the fact the accident occurred outside regular working hours factually did not alter the situation. We think that under all the circumstances, it was the clear province of the jury to determine whether or not at the time of the accident, Scanlon was acting within the scope of his employment.
Did the trial court err in refusing to submit to the jury the question whether or not Scanlon, at the time of the accident, was an independent contractor? We think not. For the defendant, it is suggested that the fact that Scanlon was also manager of the used car department did not make him a servant of the company so far as his duties as a salesman were concerned. When, however, he went to inspect the used car department, he was acting in his capacity as the head of that department and as such, was the company’s employee and not an independent contractor. One of the tests of distinction between an independent contractor and an agent or employee is “whether the employer retained the right, or had the right under the contract, to control the mode or manner in which the work was to be done.” 5 Am. Juris., 727, sec. 392; Dishman v. Whitney, 121 Wash. 157, 209 P. 12, 29 A. L. R. 460; Rogers v. Boyers, 114 W. Va. 107, 170 S. E. 905.
“The test of the relation between one having-work done and the workman consists in the employer’s right or lack of right to supervise the work. If that right exists, the relation is that of master and servant. If that right does not exist, the relation is that of employer and independent contractor.” Rogers v. Boyers, supra.
“An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.” (Italics supplied.) Restatement, 1 Agency, sec. 2 (3).
Thus the test is not the exercise of control, but the right to control. While the record contains some elements of Scanlon’s freedom, nothing therein suggests that the company did not have the right to control or supervise Scanlon’s work. We think it was not the province of the jury in the instant case to pass on the question whether or not Scanlon was an independent contractor. The trial court held, as a matter of law, that he was not. In so holding, there was no error.
Defendants contend, that the plaintiff, according to his own story, was walking between intersections across Market Street in a diagonal direction in violation of the city ordinance, and, therefore, was guilty of negligence which contributed proximately to his injury. Of course, if this is true, the plaintiff, except for the intervention of the last clear chance doctrine, is precluded from recovery. We cannot, however, say as a matter of law that the violation of the ordinance proximately was negligence which contributed to the accident. Plaintiff’s story must be taken as true, because it is most favorable to him, and was considered by the jury in reaching its verdict. Wiseman v. Ryan, 116 W. Va. 525, 182 S. E. 670. Therefore, we assume that the plaintiff, as he testified, looked constantly for traffic as he proceeded across the stréet.
It is not negligence per se, in the absence of an ordinance, for a pedestrian to cross a street between intersections. Generally, a motorist must keep a lookout for pedestrians, not only at street crossings, but between intersections. Huddy, Automobiles, section 435, and note; 2 Ruling Case Law, 1186; 14 A. L. R., p. 1183; 67 A. L. R., p. 320, and cases cited. This court has held (Walker v. Bedwinek, 114 W. Va. 100, 170 S. E. 908; Ritter v. Hicks, 102 W. Va. 541, 135 S. E. 601, 50 A. L. R. 1505) that a pedestrian struck by an automobile between crossings, after looking in both directions without observing the approach of an automobile, is not guilty of contributory negligence as a matter of law for failing to look after entering the street. Plaintiff’s violation of the ordinance, in attempting to cross the street between intersections, is negligence; but to preclude recovery, it must naturally and proximately result in his injury. Oldfield v. Woodall, 113 W. Va. 35, 166 S. E. 691.
There is a great diversity of American decisions on the question as to whether the violation of the ordinance constitutes negligence per se which will preclude recovery, or is simply evidence of negligence. 12 Va. Law Review, 503. Almost uniformly, however, the courts have held that to preclude recovery, the plaintiff’s violation of the ordinance must be the proximate cause or contribute proximately to the injury. This question, under the great weight of American authority, is a question of fact for the jury. McKeon v. Delbridge, 55 S. D. 579, 226 N. W. 947, 67 A. L. R., p. 311, note 333; Ivy v. Marx, 205 Ala. 60, 87 So. 813, 14 A. L. R. 1173 (note p. 1197, and cases cited); Ensley Mercantile Co. v. Otwell, 142 Ala. 575, 98 So. 839, 4 Ann. Cas. 512, and note; Day v. Duluth St. R. Co., 121 Minn. 445, 141 N. W. 795; Lerette v. Director General of Railroads, 306 Ill. 348, 137 N. E. 811; Freeborn v. Holt, 100 Okla. 50, 227 P. 136; St. Louis, etc., R. Co. v. Price, (Tex. Com. App.) 269 S. W. 422, Id. (Tex. Civ. App.) 244 S. W. 642.
Under the ordinance in question, the plaintiff and Scanlon both, had the duty to use due care. Paragraph, (b) of the ordinance provides that a pedestrian crossing at a point other than a crosswalk shall yield the right-of-way to vehicles; and that such ordinace expressly does not relieve the driver of the vehicle from the duty to exercise due care for the safety of the pedestrian crossing between intersections. The legislative intent underlying this ordinance was to place a higher degree of care on the pedestrian crossing streets at places other than crosswalks than at the regular crosswalk, without relieving the motorist of his duty to use due care. Such an ordinance should be construed reasonably, and should require pedestrians to yield their right to the street only when necessity requires it to prevent stopping a vehicle. Green v. Ruffin, 141 Va. 628, 125 S. E. 742, 127 S. E. 486.
In Knutson v. McMahan et ux., 186 Wash. 518, 58 P. (2d) 1033, the Supreme Court of Washington had under consideration an ordinance similar to the one in the instant case. There, the plaintiff’s decedent was hit while crossing a street between intersections in violation of an ordinance which provided:
“Pedestrians shall not cross any street in the city except at crosswalks, and that vehicles shall have the right-of-way between intersections and pedestrians at crosswalks.”
The court held that the decedent was guilty of contributory negligence as a matter of law, but that it did not defeat recovery. Syllabus 3 reads: “Pedestrian’s negligence as matter of law, in attempting to cross street between intersections in violation of ordinance, does not defeat recovery for injuries inflicted by automobile, unless such negligence materially contributed to accident.”
Because the ordinance in the instant case did not relieve Scanlon from his duty to use due care toward pedestrians crossing the street between intersections, the case of Ritter v. Hicks, supra, is a strikingly similar case. There, this court affirmed a judgment in favor of a pedestrian against the driver of an automobile. The plaintiff was proceeding between cross streets from one side of the street to the other. At the place of accident, the street measured 33,7 feet. In the instant case, the street measured slightly over 32 feet. The court held that the plaintiff was not guilty of contributory negligence. If the plaintiff’s story is true, and we must view it in the light of the verdict of the jury, it seems to us that it was reasonable for the jury to say that the plaintiff, having looked constantly as he was crossing the street, was not guilty of negligence which contributed proximately toward the accident. Because, however, the plaintiff technically violated the ordinance, the trial court properly submitted the question of contributory negligence to the jury. To do so is in line with the great weight of American authority. Maneff v. Lamer, 152 Ore. 619, 54 P. (2d) 287; Nelson v. Malcolm, 11 Cal. App. (2d) 352, 53 P. (2d) 1014; Newcomb v. Boston Protective Department, 146 Mass. 596, 16 N. E. 555, 4 Am. St. Rep. 354; Ensley Mercantile Co. v. Otwell, supra; Wall v. King, 280 Mass. 557, 182 N. E. 855; Hall v. Hepp, 210 App. Div. 149, 205 N. Y. Supp. 474; Kelly v. Huber Baking Co., 145 Md. 321, 125 A. 782; Jackson v. Geiger, 100 N. J. L. 330, 126 A. 438; Ivy v. Marx, supra.
We have examined the instructions dealing with contributory negligence, and find no prejudicial error. However, defendants’ counsel say that the court erroneously instructed the jury to determine if the defendants were negligent before determining whether the plaintiff was negligent — when plaintiff’s own evidence showed negligence on his part. They refer us to a part of the court’s charge, and cite Culp v. Virginian Railway Co., 77 W. Va. 125, 87 S. E. 187; Barrickman v. Marion Oil Company, 45 W. Va. 634, 32 S. E. 327, 44 L. R. A. 92. These cases, although correct in principle, do not apply to the instant case. It is true that an instruction on contributory negligence should not assume that defendant was primarily negligent. However, the trial court, in his charge, told the jury, in effect, that the burden of proving negligence rested upon the plaintiff, and that until the plaintiff established defendants’ negligence, they should not consider the question of contributory negligence. From a careful reading of this charge, we find there is no assumption in it of negligence on the part of the defendants. On the contrary, the jury were fully instructed as to the negligence of the plaintiff and then they were instructed that if they found the defendants negligent, they were at liberty to consider contributory negligence.
Defendants’ counsel strenuously maintain that this case does not admit of the application of the doctrine of last clear chance. They say the plaintiff stepped suddenly from behind the front of a parked car into Scanlon’s car; that plaintiff’s dark clothing, coupled with poor lighting conditions and visibility, made it difficult for Scanlon to see the plaintiff; that Scanlon did not see the plaintiff until he was fifteen feet away, and then he had no time to avert the accident. If these were the only facts in the case, there would be grave doubt as to the right of the jury to consider the application of the' doctrine. However, the jury had a right to disregard this testimony, and accept the testimony supporting the plaintiff’s theory of the case. Key v. Charleston & W. C. Ry. Co., 144 S. C. 164, 142 S. E. 336. And the plaintiff’s account clearly admits the application of the last clear chance doctrine. When the plaintiff crossed the street, the street was dry and the night clear. According to some witnesses, people could be seen walking the street for a distance of one block. Scanlon himself testified that when he first saw the plaintiff, he was walking with his head down.
It is unnecessary at this point to state in further detail Scanlon’s or plaintiff’s stories. The jury had' a right to infer from the evidence not only that Scanlon, by the exercise of due care, could have seen the plaintiff, but as a matter of fact, he actually did see the plaintiff walking diagonally across the street in the middle of the block with his back partly toward traffic, which, of itself, was a perilous position. And having seen the plaintiff in this position, he was, under the weight of authority, in duty bound to realize plaintiff’s peril, and to take steps to avert the accident.
Here, the jury had a right to say, taking the plaintiff’s story as true, that the defendant actually saw the plaintiff’s position, and therefore was under a duty to realize his peril. The jury had a right to say this, although Scanlon testified that he did not see the plaintiff until he was fifteen feet away. Key v. Charleston & W. C. Ry. Co., supra. This being so, under the great weight of authority, the last clear chance doctrine should apply, provided there was sufficient interval of time after Scanlon saw the plaintiff’s position for him to avert the accident. Chunn v. City & Suburban Ry. of Washington, 207 U. S. 302, 52 L. Ed. 219, 28 S. Ct. 63; Godfrey v. Vinson, 215 Ala. 166, 110 So. 13; Missouri P. R. Co. v. Skipper, (1927) 174 Ark. 1083, 298 S. W. 849; Harrington v. Los Angeles Ry. Co., 140 Cal. 514, 74 P. 15, 63 L. R. A. 238, 98 Am. St. Rep. 85; United Rys. & Electric Co. v. Sherwood Bros., 161 Md. 304, 157 A. 280; Morrison v. Rhode Island Co., 41 R. I. 474, 104 A. 71; Leftridge v. Seattle, 130 Wash. 541, 228 P. 302; Restatement of the Law of Torts, Vol. 2, section 480. Therefore, it is immaterial, in the instant case, whether or not plaintiff’s claimed negligence had terminated before the accident or had concurred with Scanlon’s negligence. Wilson’s Admx. v. Virginian P. R. Co., 122 Va. 160, 94 S. E. 347; Leftridge v. Seattle, supra; Morrison v. Rhode Island Co., supra; Smith v. Gould, 110 W. Va. 579, 159 S. E. 53, 92 A. L. R. p. 28.
In Smith v. Gould, supra, syllabus one reads:
“The last clear chance doctrine is properly extended to a case where an automobilist, by reason of failure by him in his plain duty to maintain a lookout for the persons and property of others on the highway, commensurate with the danger indicated by attendant facts and surrounding circumstances known to him, and which are such as to have put him on the alert, causes injury to another (though such other was himself concurrently negligent), where the peril should have been seen and comprehended by the automobilist and the injury avoided in the exercise of reasonable care commensurate with the situation. Such case constitutes an exception to the general rule which precludes recovery by a plaintiff whose negligence has concurred with the defendant’s.”
The last sentence of that point of the syllabus should be taken to mean that a negligent plaintiff, oblivious of impending danger, or unable to extricate himself, may nevertheless recover for injuries, where the defendant knew of the plaintiff’s situation, and, under the circumstances, in the exercise of reasonable care, should have realized the plaintiff’s peril, and, on such realization, could have avoided the injury.
The submission to the jury of the last clear chance doctrine by plaintiff’s instructions Nos. 5, 8 and 15 is also assigned as error. Under these instructions, the jury was permitted to find for the plaintiff, though himself negligent and in a position of peril, if in the exercise of reasonable care the defendant could have seen the plaintiff in said position in sufficient time to avert injuring him and failed to do so. Where a plaintiff cannot escape from his position of peril, it is immaterial whether the defendant had actual knowledge of plaintiff’s position and was under a duty to realize the peril, or by the exercise of reasonable care could have seen and realized plaintiff’s peril. 2 Restatement, Torts, sec. 479.
In the absence of actual knowledge by defendant of plaintiff’s position of peril, a negligent plaintiff in a position of peril from which he can escape cannot recover under the last clear chance doctrine unless oblivious of his impending danger, and the defendant knew of the plaintiff’s situation, and, under the circumstances, in the exercise of reasonable care, should have realized the plaintiff’s peril, and, on such realization, could have avoided the injury. McLeod, Admr., etc. v. Charleston Laundry Company, 106 W. Va. 361, 145 S. E. 756; Emery v. Monongahela West Penn Public Service Company, 111 W. Va. 699, 163 S. E. 620; Smith v. Gould, supra; 2 Restatement, Torts, sec. 480. But are these instructions cured by defendants’ instructions Nos. 13 and 26? The defendants’ instruction No. 13 instructs the jury that “the plaintiff cannot recover unless the defendant, Bart Scanlon, is shown to have had actual knowledge, or should have had by the exercise of reasonable care actual knowledge of, the plaintiff’s position of peril, and also that the defendant, Bart Scanlon, was aware, or by the exercise of reasonable care should have been aware, of the plaintiff’s unconsciousness of or inability to avert the peril.” If plaintiff’s instructions 5, 8 and 15 were simply incomplete instructions, they could be cured by other instructions. Adams v. Virginian Gasoline & Oil Company, 109 W. Va. 631, 156 S. E. 63. However, they are binding on the application of the last clear chance doctrine. They permit recovery by a negligent plaintiff in a position of peril, though plaintiff’s danger was not actually discovered by the defendant but ought to have been and plaintiff was aware of his peril and able to escape therefrom. Such a theory of the last clear chance doctrine is not consonant with the holdings of this court. McLeod, Admr., etc. v. Charleston Laundry Company, supra; Emery v. Monongahela West Penn Public Service Company, supra; Smith v. Gould, supra. These instructions being complete and erroneous, they are not cured by the other instructions. State v. Ringer, 84 W. Va. 546, 100 S. E. 413; Liston v. Miller, 113 W. Va. 730, 169 S. E. 398.
The court’s refusal to give defendants’ instructions Nos. 20 and 21 on concurrent negligence is assigned as error. These instructions improperly exclude the application of the last clear chance doctrine and ignore the fact that concurrent negligence will not preclude recovery unless there is a proper causal connection between it and the plaintiff’s injury.
Of course, the doctrine of last clear chance “implies a sufficient interval of time for both appreciation of the dangerous situation and effective effort to relieve it.” Milby v. Diggs, 118 W. Va. 56, 189 S. E. 107; Juergens v. Front, 111 W. Va. 670, 163 S. E. 618. In the first mentioned case, the plaintiff stepped off the curb suddenly and directly in front of the defendant’s automobile, which was going at a speed in violation of a city ordinance. If the jury, in the instant case, had accepted Scanlon’s version of the accident to the effect that the plaintiff stepped suddenly from behind a car, Milby v. Diggs, supra, would apply. However, here again, we must take plaintiff’s version of the accident. Wiseman v. Ryan, supra. From curb to curb, at the point where plaintiff says he first stepped off the sidewalk, the street, as shown by the map in evidence, is slightly over 32 feet. On this map, the distance along the diagonal line from the curb to the place where the plaintiff says he was struck measures about 25 feet. Plaintiff says he walked slowly. Clearly, the jury had a right to say that Scanlon had time to avert the accident.
Defendants’ counsel assign as error the trial court’s action in overruling the demurrer to the declaration. They say the declaration states two inconsistent causes of action: (1) that Scanlon’s negligence caused the injury and that plaintiff was using due care; and (2) that Scanlon saw plaintiff was in danger in time to avert the accident and did not do so. The declaration, we think, is sufficiently broad in its allegations to permit recovery on the ground of plaintiff’s primary negligence, as well as on the ground that Scanlon failed to avert the accident after he saw the plaintiff’s danger. It presents both of plaintiff’s theories, but that does not render it demurrable. At common law duplicity was a mere formal defect constituting ground of special demurrer, and, as the special demurrer has been abolished by statute in this state, such defect now cannot be reached by demurrer. Code 56-4-37; Collins, Administratrix, etc. v. Dravo Contracting Co., 114 W. Va. 229, 171 S. E. 757; McMechen et al. v. Baltimore & Ohio Railroad Co., 90 W. Va. 21, 110 S. E. 474; Huff v. The Lanes Bottom Bank, 110 W. Va. 389, 158 S. E. 380; Farmers’ & Merchants’ Bank v. Kingwood Nat’l. Bank, 85 W. Va. 371, 101 S. E. 734.
Under assignment of error 8, defendants’ counsel complain that medical experts were permitted to give their opinions in the presence of other medical experts in violation of a stipulation providing otherwise. Clearly, a misunderstanding occurred between counsel. This misunderstanding was unfortunate. We, however, find in it no prejudicial error in view of the fact that defend ants’ counsel themselves placed medical witnesses on the stand, who, in turn, gave their opinion covering the whole scope of plaintiff’s claimed injury. Whatever legal effect the stipulation may have had in the first instance was waived by defendants’ counsel. In making this statement, we have in mind that the stipulation was made prior to the calling of Dr. Clovis, whose testimony dealt largely with the reading of X-ray pictures, and necessarily was concerned with matters of expert opinion; and while Dr. Clovis was testifying, Dr. Weiler, a defense witness, was also present in court and heard this testimony. Upon being called by defendants’ counsel, he was examined in chief concerning his opinion of the nature and effect of plaintiff’s injury.
Defendants’ counsel rely upon thirty-two main and sub-assignments of error. We have considered all of them in the light of the record. Time will not permit us to discuss them in detail. With the exception of plaintiff’s instructions Nos. 5, 8 and 15, we find no error in the record.
Because of the error in said instructions, the judgment is reversed, the verdict of the jury set aside and a new trial awarded.
Judgment reversed; verdict set aside; new trial awarded. | [
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Caplan, Judge:
Elizabeth Ann Roberts, an infant, who sues by her mother and next friend, Ruth Roberts, instituted this action against the defendant, Richard O. Gale, a physician, for damages which she alleges she sustained as a result of the defendant’s negligence in administering certain medical treatment. In the trial of this case the court, at the conclusion of the plaintiff’s evidence, directed the jury to return a verdict for the defendant, entered a judgment for the defendant and dismissed plaintiff’s cause of action.
The plaintiff here complains that such action of the trial court constitutes error. Although several assignments of error are relied upon for reversal of this ease, full consideration of such assignments presents for determination a single issue. Did the plaintiff, in the presentation of her evidence, establish a prima facie case of negligence against the defendant, upon which the jury properly could have returned a verdict in her favor?
The plaintiff’s primary allegation is that the improper application of dry ice to her face constituted negligence. She also claims that the defendant was negligent in failing to further treat her or advise that additional treatment was necessary. In order to determine the validity of the plaintiff’s position it is essential to consider the evidence adduced at the trial.
Ruth Roberts, the mother of the plaintiff, testified that the plaintiff was born in the City of Welch on November 15, 1951; that at the time of her birth she appeared to be a normal, healthy baby; that approximately three weeks thereafter a small red spot about the size of a “pin scratch” appeared on the left side of the infant’s face; and that over the period of the next few weeks she observed that the red spot was growing. Being concerned with this blemish on her child’s face, she took her to see Doctor Saunders, who ad vised her to have the child examined by Doctor Gale, the defendant herein.
Her further testimony reveals the following: When the plaintiff was approximately three months of age she, accompanied by her father, took the child to Doctor Gale’s office. Doctor Gale looked at the child and told Mrs. Roberts that the red spot was a small blood tumor and that he would bum it off with dry ice. Upon obtaining a piece of dry ice, he shaved it to a point in preparation for its use on the child’s face. After telling her that this treatment would result in a bad burn, the defendant applied the dry ice to the spot on the baby’s cheek. It was applied with some force for over a minute, during which time the child cried and apparently suffered great discomfort. This treatment caused the plaintiff’s cheek to become discolored over an area estimated to be the size of a quarter and a depression or hole in the tissue of her cheek became apparent. Also, a sore developed inside the child’s cheek. Within a few days after this treatment the child’s face began to swell and continued to swell for a period of approximately fourteen months. During this period she took her child to Doctor Gale several times but the defendant did not further treat the child, saying that “mother nature would take it off”.
Describing the condition of the child, Ruth Roberts testified that “Elizabeth Ann’s face was blue, every vein in her eyes was broken, across her mouth, up in here and a big one behind her ear. Q. Was her face swollen. A. Yes, sir. Q. Had it continued to swell or had it reached a point where it was stopped? A. No, sir. It was still breaking.”
Mrs. Roberts’ father also testified as to the application of the dry ice by the defendant. His testimony was similar to that of his daughter, although he estimated that the dry ice may have been applied for as long as two minutes. The testimony of other lay witnesses supported that of Mrs. Roberts as to the condition of the plaintiff after she had been treated by the defendant.
When it became apparent that the child’s condition was not improving, her mother took her to Cincinnati, Ohio, where she was examined and treated by Doctor Esther C. Marting of that city. Doctor Marting, a radiation therapist, whose deposition has been made a part of the record, described the child’s condition as follows: “Well, this lesion consisted of a large puffy swelling on the left cheek, extending up onto the bridge of the nose and down into the upper lip. It had a bluish color. On the surface there was some splotches of bright red coloring. I think there was about, as I remember it, there was some scarring along the cheek, the lower part of the cheek.” She described the condition as a thick, cavernous type of hemangioma.
In her deposition she stated that she could not have known the condition of the child’s face when Doctor Gale treated her; that the use of dry ice is an accepted method of treatment of a capillary hemangioma; that the growth on the child’s face could not have been caused by the dry ice treatment; that there was no hole or perforation in the cheek when she saw her; that the only evidence of former treatment was some scar tissue on the cheek, but that the amount of scarring was not unusual; and that, in her opinion, the child had both the surface and cavernous types of heman-gioma at the time she was brought to her for treatment.
It further appears from the deposition of Doctor Marting that she administered radium treatments to the plaintiff nine times between May 5,1953 and March 30,1956. These treatments caused considerable regression of the growth and, as a result thereof, the lesion was about one half of its original size. Doctor Marting then told the child’s mother that- she had accomplished as much as could be hoped for with radium and advised her to take the plaintiff to a plastic surgeon.
In accordance with this advice, Mrs. Roberts contacted Doctor Clyde Litton, a plastic surgeon in Charleston, and arranged to have plastic surgery performed on her daughter. The operation was performed on August 17, 1956. Mrs. Roberts testified that the operation resulted in a great improvement in the appearance of her child’s face, but that two additional operations will be required.
During the trial several physicians were called as witnesses by the plaintiff. Also, the deposition of Doctor Mar- ting, of Cincinnati, was read to the jury. The matters to which Doctor Marting testified have been related above. None of the other physicians called as witnesses had treated or examined the plaintiff. They were queried, on the basis of a hypothetical question, as to the propriety of the treatment administered to the plaintiff by Doctor Gale.
In response to the hypothetical question which set out many of the facts of this case and particularly those dealing with the actual dry ice treatment, Doctor Stephen Mamick stated that, in his opinion, the treatment was adequate and that other doctors in the area “would probably do it in a similar fashion”. This witness had never treated a capillary hemangioma but said that the use of dry ice was an accepted method of treatment.
Doctor F. L. Johnston, upon being asked the same hypothetical question, testified as follows: “It is my opinion that the treatment you describe is acceptable and that the result you describe is to be expected if you expect to cure the tumor. Q. So that we may be sure we understand you, Doctor, you are referring not only to the use of the dry ice but the method in which it was applied in this case? A. Yes. Q. For a surface capillary hemangioma? A. Yes.”
Doctor A. J. Villani testified that he had treated several patients who had capillary hemangiomas and that his method of treatment was the application of dry ice. While his testimony indicated that he may use the dry ice in treating a patient in a manner different from that employed by the defendant, he did not say that the defendant’s treatment constituted negligence. He stated that he never timed the application of dry ice but applied it until the lesion became “blanched and looked like frost”. Furthermore, he said that one could not say how long the treatment should last because it was dependent upon the condition of the hemangi-oma. This witness said that the hypothetical question could not be answered with a yes or no. He did, however, upon further questioning, say that “If it comes to the question as to holding the dry ice on the baby’s face until a hole is produced, I think any medical opinion would be that is not the proper procedure”.
Doctor Jorge Ribeiro testified that he had used dry ice in the treatment of capillary hemangiomas; that the application of dry ice should not last for more than thirty seconds but may be longer depending upon the size of the lesion; and that such application must cause a depression in the skin because it has to be applied with some force. In response to the hypothetical question, this witness stated that the manner and method of treatment were proper. Counsel for the plaintiff claimed surprise and was permitted by the court to examine him as a hostile witness. Upon further examination Doctor Ribeiro refused to assume as true the facts stated in the hypothetical question.
On avowal, Doctor Ribeiro persisted in his position that the treatment by dry ice could not produce a hole in the child’s face as described in the hypothetical question. He testified: “A. As I said before, I don’t believe that can happen. Q. But assuming that it did happen, it was not proper treatment or not? A. Assuming that it did happen, it was not proper treatment, but I don’t believe and don’t think it could happen. Q. I understand that, but assume it could happen, which you must do for the purpose of this question, was it proper or not? A. If it happened, it would not be the proper treatment.” The court did not permit this testimony to go to the jury. We think it was properly within the discretion of the court to withhold such testimony. It did not unequivocally assume the truth of the facts and could do nothing but confuse and mislead the jury.
The complaint in this case relates to the puffy and swollen condition of the child’s face which developed after the treatment administered by the defendant. The testimony of Doctor Marting, the only expert witness who examined the plaintiff, clearly reveals that the child’s affliction was a cavernous hemangioma. This is an unnatural growth of blood vessels deep beneath the surface of the skin as opposed to a capillary hemangioma which involves veins at the surface of the skin. The evidence is undisputed that Doctor Gale was employed to treat a capillary hemangioma, not the cavernous type which developed later. Furthermore, all of the expert testimony establishes that the treatment adminis tered to the plaintiff by the defendant could not produce a cavernous hemangioma or cause its development.
This brings us to the consideration of whether the defendant was negligent in his treatment of the capillary hemangi-oma. The plaintiff seeks to establish through certain lay witnesses that the defendant’s treatment constituted negligence. Although the plaintiff also produced expert witnesses, none of them testified that the treatment administered by the defendant for the capillary hemangioma was in any manner improper. There is no medical evidence which would indicate negligence in the administration of the treatment for which the defendant was employed.
In an action for damages against a physician for negligence and want of professional skill in the treatment of an injury or disease, the burden is on the plaintiff to prove such negligence or want of professional skill and that it resulted in the injury of which complaint is made. Dye v. Corbin, 59 W. Va. 266, 53 S. E. 147; White v. Moore, 134 W. Va. 806, 62 S. E. 2d 122. In such case the plaintiff must not only prove negligence but also must show that such negligence was the proximate cause of the injury. In this respect actions involving medical malpractice do not depart from the ordinary rules of negligence. The evidence in this case falls short of showing that the defendant’s act was the proximate cause of the plaintiff’s ultimate condition. To the contrary, Doctor Marting and Doctor Ribeiro testified that the treatment administered by the defendant could not produce or cause the development of a cavernous hemangioma.
In the instant case the only proof of negligence offered was that of lay witnesses. None of the medical testimony supported the charge of negligence in the treatment administered to the plaintiff by the defendant. It is the general rule that in medical malpractice cases negligence or want of professional skill can be proved only by expert witnesses. White v. Moore, supra; 41 Am. Jur., Physicians and Surgeons, Section 129; 70 C.J.S., Physicians and Surgeons, Section 62d(2). This rule has been qualified to permit negligence to be established by lay witnesses in cases where negligence or want of professional skill is so obvious as to dis pense with the need for expert testimony. Buskirk v. Bucklew, 115 W. Va. 424, 176 S. E. 603; Howell v. Biggart, 108 W. Va. 560, 152 S. E. 323. We are of the opinion, however, that the rule set out in the two latter cases has no application to the instant case. Here the plaintiff’s condition required specialized treatment. To prove negligence or want of professional skill in such treatment the testimony of one with special knowledge is essential. An examination of the record reveals that no such testimony was adduced in the presentation of the plaintiff’s case.
Although not strongly urged in the argument or brief made and submitted on her behalf, the plaintiff alleges in her complaint that the defendant was negligent in failing to treat her condition or to advise her that further treatment was necessary. In the circumstances of this case we think that this contention is without merit.
The evidence in the record clearly shows that Doctor Gale was employed to remove a small red spot from the plaintiff’s face; that he undertook only the removal of that blemish; that he did so in an approved manner; and that the portion of the plaintiff’s face which he treated, that is, the capillary hemangioma, healed in the usual and expected manner. The medical testimony revealed that the scar tissue which resulted from the treatment by dry ice was not unusual.
There is no showing in the record which would in any manner indicate that the defendant caused the condition of which the plaintiff complains. The medical evidence expressly reveals that the dry ice treatment could not cause the condition which developed. The swelling on the plaintiff’s cheek was the result of a cavernous hemangioma, an ailment entirely separate and apart from that which the defendant treated. He was under no duty to treat this new condition which developed, not as a result of his treatment, but entirely independent thereof. Furthermore, there is no showing that the defendant ever undertook treatment of the cavernous hemangioma. Clearly one can not be negligent for the existence of a condition which he did not undertake to treat.
We come now to the consideration of the principal ques tion presented in this case, that is, whether the plaintiff established a prima facie ease of negligence upon which the jury could have returned a verdict in her favor. The well settled rule requires the plaintiff in making his case to present evidence which, when considered in the light most favorable to him, establishes a prima facie right of recovery, and if he fails to do so the defendant is not required to offer any evidence and a verdict will be directed in favor of such defendant. White v. Moore, 134 W. Va. 806, 62 S. E. 2d 122; Dye v. Corbin, 59 W. Va. 266, 53 S. E. 147; Hi Williamson & Co. v. Nigh, 58 W. Va. 629, 53 S. E. 124. See also Prettyman v. Hopkins Motor Co., 139 W. Va. 711, 81 S. E. 2d 78; Howell v. Biggart, 108 W. Va. 560, 152 S. E. 323; Buskirk v. Bucklew, 115 W. Va. 424, 176 S. E. 603; Diddle v. Continental Casualty Co., 65 W. Va. 170, 63 S. E. 962, 22 L.R.A., N. S., 779; 88 C.J.S., Trial, Section 208; 53 Am. Jur., Trial, Section 162, et seq.
Upon consideration of all of the evidence in the record of this proceeding we are of the opinion that the plaintiff did not establish a prima facie case of negligence against the defendant. Therefore, the judgment of the Circuit Court of McDowell County is affirmed.
Affirmed. | [
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McGRAW, Chief Justice:
This is an appeal by Curtis and Karen Lee Robertson from an order entered by the Circuit Court of Wayne County granting the motion of Norfolk & Western Railway Company for a directed verdict, and dismissing the appellants’ action on the merits. The appellants’ civil action sought to hold liable Tony K. LeMaster, his mother, Arthonia, and the Norfolk & Western Railway Company for damages resulting from an automobile accident that occurred on October 12, 1978. The appellants’ claim against Tony and Arthonia LeMaster was compromised and settled prior to trial. Consequently, the action proceeded solely against the appellee, Norfolk & Western Railway Company.
The evidence adduced by the appellants at trial showed that on October 11, 1978, Tony K. LeMaster, then nineteen years old, was employed by the appellee as a section laborer. LeMaster reported for work at 7:00 a.m. at the appellee’s Nolan section office, approximately 50 miles from his home in Fort Gay. After working three hours in the Nolan area, LeMaster’s section was called in to work at a derailment that had occurred near Kermit, approximately half-way between the appellee’s section office in Nolan and LeMaster’s home in Fort Gay. LeMaster and his fellow workers were transported to the derailment site in a truck owned by the appellee.
Upon arriving at the derailment site, the section foreman, Ruben VanHoose, instructed his men to eat lunch. When they finished eating, the section crew began the work of removing debris and repairing the track that was damaged by the derailment. The derailment had completely blocked the appellee’s single railway track between Fort Gay and Nolan, and thus was deemed an emergency under the railroad’s contract with its union employees. Much of the work of removing the derailed train and the damaged track was performed by heavy equipment furnished by the appellee. However, the work performed by LeMaster and his co-workers was heavy manual labor which included lifting railroad ties and shoveling coal. The work was continuous, except for intermittent periods when the workers were required to step back out of the way of the heavy equipment. The work continued long past LeMaster’s normal 3:30 p.m. quitting time.
At approximately 10:00 p.m. that night, LeMaster told his foreman, VanHoose, that he was tired and wanted to go home. Van-Hoose told LeMaster that he could not go home, but told him to speak with Bill Rowe, the road master in charge. LeMaster did not speak with Rowe at this time, but continued working.
At approximately 1:00 a.m. on the morning of October 12, 1978, LeMaster was given his first chance to eat since lunch the previous day. LeMaster ate in a dining ear provided by the appellee. When he was finished eating, LeMaster left the dining car and sat down outside to rest. LeMas-ter testified that this was his first opportunity to rest since beginning work on the derailment. After sitting down, LeMaster was approached by Rowe and told to return to work.
LeMaster resumed working. Several times during the night he told his foreman that he was tired and wanted to go home. Each time the foreman told LeMaster that he should ask Rowe. LeMaster testified that he did not speak with Rowe for fear of being fired. Apparently, LeMaster and Rowe were involved in a work related dispute several months before, which resulted in LeMaster being laid off for a week. At 5:00 a.m. LeMaster ate breakfast in the dining car. After breakfast he again resumed work.
At 9:00 a.m. or 9:30 a.m. LeMaster talked with Les Conn, the assistant foreman, about going home. Shortly thereafter, Le-Master told VanHoose that he was too tired to work, and VanHoose then told him to talk with Rowe. LeMaster finally spoke with Rowe, telling him that he was too tired to continue working. Rowe told Le-' Master that if he wouldn’t work, he should get his bucket and go home. LeMaster asked for a ride to his car in Nolan.
An employee of the appellee drove Le-Master to his car. During the drive from the derailment site to Nolan, LeMaster fell asleep with a lighted cigarette in his hand. Upon arriving at Nolan, LeMaster got into his car and began the 50 mile trip to his house in Fort Gay. He decided to stop en route at the derailment site at Kermit to speak with Rowe and determine if he had been fired. When he arrived at the derailment site, LeMaster threw his hard hat at Rowe, told him to find some other person to work, and then asked if he was fired. Rowe told LeMaster that he was not fired and to “just go on home.” They then shook hands, and LeMaster left in his car.
On the way home LeMaster claims that he fell asleep at the wheel and the accident with the Robertsons resulted. LeMaster has no memory of the details of the accident. Benjamin Jude, a witness to the accident, testified that he was travelling from Kermit to Louisa at approximately 10:45 a.m. when LeMaster passed his car. Jude was travelling 65 to 70 miles per hour at the time. He estimated that LeMaster was travelling about 75 miles per hour. Jude testified that LeMaster turned his head and looked at him when he passed, and that LeMaster appeared normal and his eyes were open.
After passing Jude’s vehicle, LeMaster came upon the appellants’ vehicle travelling in the same direction as LeMaster, but at a much slower speed. Jude testified that it appeared that LeMaster was attempting to pass the appellants’ vehicle when the right front end of LeMaster’s car struck the left rear end of the appellants’ car, causing the accident. After the accident, Jude approached LeMaster’s car to see if he was injured. Jude testified that it took approximately a minute for LeMaster to regain consciousness. LeMaster told Jude that he was “all right except I must have fallen asleep.”
The section crew of which LeMaster was a member had worked throughout the night without rest breaks. Some of the men did slip away and go to sleep. One member of the section crew blacked out, fell over an embankment and slept for approximately an hour. LeMaster worked approximately 27 hours before Rowe gave him permission to quit work. The section crew, other than LeMaster, worked for 37 hours on the derailment. The appellee railroad company offered to drive all members of the crew, other than LeMaster, to their homes, rather than taking them back to Nolan to their vehicles.
The appellants’ cause of action sounds in tort. They allege in their complaint that the appellee, Norfolk & Western Railway Company, “illegally, willfully, wantonly, negligently, and with a conscious disregard for the rights and safety of others, ordered, forced and required ... LeMaster, its employee, to work for ... 32 hours straight without rest, and then to leave the ... place of employment without providing either rest or transportation home when it knew or should have known that its employee constituted a menace to the health and safety of the public.” The appellants further allege that these acts of the appel-lee were the proximate cause of the automobile accident in which they were injured.
At the close of the plaintiffs case, the appellee moved for a directed verdict on the issue of liability. As grounds for the motion the appellee asserted that the appellants had made no factual showing to demonstrate that a duty of care existed on the part of the appellee towards the appellants, or to demonstrate that the conduct of the appellee was the proximate cause of the accident. The trial court agreed that the elements of duty and proximate cause had not been established, and granted the ap-pellee’s motion. We reverse.
I.
“In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission in violation of a duty owed to the plaintiff. No action for negligence will lie without a duty broken.” Syllabus Point 1, Parsley v. General Motors Acceptance Corporation, 167 W.Va. 866, 280 S.E.2d 703 (1981). See Hinkle v. Martin, 163 W.Va. 482, 256 S.E.2d 768 (1979); Morrison v. Roush, 110 W.Va. 398, 158 S.E. 514 (1931); Uthermohlen v. Bogg’s Run Min. & Mfg. Co., 50 W.Va. 457, 40 S.E. 410 (1901). The appellee contends that it owed no duty of care to the appellants, and therefore the trial court correctly directed a verdict against the appellants. We disagree.
Throughout the history of Anglo-American jurisprudence the concept of duty in tort law has evolved in response to the social aims of civilized society. When tort law first emerged as a separate legal entity from criminal law, the duty existed to act with care towards all others. See W. Pros-ser, The Law of Torts supra §§ 4, 53 (4th ed. 1971); Note, The Death of Palsgraf: A Comment on the Current Status of the Duty Concept in California, 16 San Diego L.Rev. 793, 794 (1979). During the industrial revolution of the nineteenth century, this broad concept of duty was transformed by courts into a device by which the liability of defendants could be limited. See W. Prosser, supra § 53; Note, The Origin of the Modem Standard of Due Care in Negligence, 1976 Wash.U.L.Q. 447; Sulnick, A Political Perspective of Tort Law, 7 Loy.L.A.L.Rev. 410 (1974); Green, The Thrust of Tort Law Part I The Influence of Environment, 64 W.Va.L.Rev. 1 (1961). With the advent of the twentieth century, however, this pro-defendant bias has steadily eroded, and the emphasis on duty has been shifted towards the goal of compensating victims of tortious conduct. See Hodel, The Modern Concept of Duty: Hoyem v. Manhattan Beach City School District and School District Liability for Injuries to Truants, 30 Hastings L.J. 1893, 1906 (1979); Fleming, The Role of Negligence in Modern Tort Law, 53 Va.L.Rev. 815 (1967).
The California Supreme Court has been the vanguard of the modern trend to expand the concept of duty in tort eases. In two landmark cases, Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal.Rptr. 72 (1968), and Rowland v. Christian, 69 Cal.2d 108, 443 P.2d 561, 70 Cal.Rptr. 97 (1968), the California Court retreated from the concept of duty as a means of limiting the defendant’s liability and returned to the fundamental tort law principle, stated in Heavener v. Pender, [1883] 11 Q.B.D. 503, that all persons are required to use reasonable care to prevent others from being injured as a result of their conduct. See Murphy, Evolution of the Duty of Care: Some Thoughts, 30 DePaul L.Rev. 147, 164-168 (1980); Note, The Death of Pals-graf: A Comment on the Current Status of the Duty Concept in California, supra.
In West Virginia, our counterpart to this principle is stated in syllabus point eight of Blaine v. Chesapeake & O.R.R. Co., 9 W.Va. 252 (1876): “The liability to make reparation for an injury, by negligence, is founded upon an original moral duty, enjoined upon every person, so to conduct himself, or exercise his own rights, as not to injur another.” This basic expression of policy is a restatement of the general duty which all actors in an organized society owe to their fellow persons. However, in order to form the basis for a valid cause of action, this duty must be brought home to the particular plaintiff, for “a duty owing to everybody can never become the foundation of an action until some individual is placed in position which gives him particular occasion to insist upon its performance ...” T. Cooley, Law of Torts § 478 (4th ed. 1932).
The appellee argues that as a matter of law it owed no duty to control an employee acting outside the scope of employment. We recognize that under traditional principles of master-servant law an employer is normally under no duty to control the conduct of an employee acting outside the scope of his employment. See Restatement (Second) of Torts § 317 (1965); Annot, 52 A.L.R.2d 287 (1957). The issue presented by the facts of this case, however, is not the appellee’s failure to control LeMaster while driving on the highway; rather it is whether the appellee’s conduct prior to the accident created a foreseeable risk of harm.
It is well established that one who engages in affirmative conduct, and thereafter realizes or should realize that such conduct has created an unreasonable risk of harm to another, is under a duty to exercise reasonable care to prevent the threatened harm. See Restatement (Second) Torts § 321 (1965). As Professor Prosser succinctly states: “ ‘[Duty]’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in light of the apparent risk.” W. Prosser, supra § 53. The issue raised by the appellants is whether the appellee’s conduct in requiring LeMaster to work over 27 hours and then setting him loose upon the highway without providing alternate transportation or rest facilities to its exhausted employee created an unreasonable risk of harm to others that was foreseeable. The appellants contend that the appellee’s conduct amounts to primary negligence; they do not rely on the doctrine of respondeat superior.
In determining the scope of the duty which an actor owes to another, the court in Dillon v. Legg, supra, focused on the foreseeability of injury. A significant number of courts have since followed this approach. See Keck v. Jackson, 122 Ariz. 117, 593 P.2d 671 (1978); D’Amicol v. Alvarez Shipping Co., Inc., 31 Conn.Sup. 164, 326 A.2d 129 (1973); Kelley v. Kokua Sales and Supply Ltd., 56 Haw. 204, 532 P.2d 673 (Haw.1975); Rickey v. Chicago Transit Authority, 101 Ill.App.3d 439, 57 Ill.Dec. 46, 428 N.E.2d 596 (1981); Barn-hill v. Davis, 300 N.W.2d 104 (Iowa 1981); Culbert v. Sampson’s Supermarkets, Inc., Me., 444 A.2d 433 (1982); Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295 (Mass.1978); Okrina v. Mideastem Corp., 282 Minn. 400, 165 N.W.2d 259 (Minn.1969); Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (N.H.1979); Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 652 P.2d 318 (Or.1982); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1975); Shelton v. Russell Pipe & Foundry Co., 570 S.W.2d 861 (Tenn.1978); Landreth v. Reed, 570 S.W.2d 486 (Tex.Ct. of Civ.App.1978). In these jurisdictions foreseeability that harm might result has become a primary factor in determining whether a duty exists. As Harper and James state:
[T]he obligation to refrain from particular conduct is owed only to those who are foreseeably endangered by the conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous. Duty, in other words, is measured by the scope of the risk which negligent conduct foresee-ably entails.
2 F. Harper & F. James, The Law of Torts § 18.2 (1956) (footnote omitted).
Beyond the question of foreseeability, the existence of duty also involves policy considerations underlying the core issue of the scope of the legal system’s protection. See D’Ambria v. United, States, 114 R.I. 643, 338 A.2d 524 (R.I.1975); Thode, Tort Analysis: Duty-Risk v. Proximate Cause and the Rational Allocation of Functions Between Judge and Jury, 1977 Utah L.Rev. 1, 27. Such considerations include the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant. See, e.g., Lance v. Senior, 36 Ill.2d 516, 224 N.E.2d 231 (1967); see also Rowland v. Christion, 69 Cal.2d at 113, 70 Cal.Rptr. at 100, 443 P.2d at 564; Donohue v. Copiague Union Free School District, 64 App.Div.2d 29, 33, 407 N.Y. S.2d 874, 877 (1978). Other broader policy considerations also enter the equation, but they are not so readily articulated. See, e.g., Green, Duties, Risks, Causation Doctrines, 41 Tex.L.Rev. 42, 45 (1962); W. Prosser, supra at § 53.
Although we have never explicitly addressed the question of the existence of duty as a product of foreseeability of injury, we have held in the past that “[a]ctionable negligence necessarily includes the element of reasonable anticipation that some injury might result from the act of which complaint is made.” Matthews v. Cumberland & Allegheny Gas Co., 138 W.Va. 639, 653, 77 S.E.2d 180, 188 (1953). In a similar vein, we have held that “[d]ue care is a relative term and depends on time, place, and other circumstances. It should be in proportion to the danger apparent and within reasonable anticipation.” Syllabus Point 2, Johnson v. United Fuel Gas Co., 112 W.Va. 578, 166 S.E. 118 (1932); see also State ex rel. Cox v. Sims, 138 W.Va. 482, 77 S.E.2d 151 (1953). And in syllabus point one of Dicken v. Liverpool Salt & Coal Co., 41 W.Va. 511, 23 S.E. 582 (1895), we held that “[njegligence is the violation of the duty of taking care under the given circumstances. It is not absolute, but is always relative to some circumstances of time, place, manner, or person.” These past decisions implicitly support the proposition that the foreseeability of risk is a primary consideration in establishing the element of duty in tort cases.
“Upon a motion for a directed verdict, all reasonable doubts and inferences should be resolved in favor of the party against whom the verdict is asked to be directed.” Syllabus Point 5, Wager v. Sine, 157 W.Va. 391, 201 S.E.2d 260 (1973); see also Jividen v. Legg, 161 W.Va. 769, 245 S.E.2d 835 (1978); Lambert v. Goodman, 147 W.Va. 513, 129 S.E.2d 138 (1963). In this case the appellee required its employee LeMaster to work for over 27 hours at hard labor without rest, despite repeated requests that he be permitted to go home. When the appel-lee finally permitted LeMaster to cease work, it did not provide him sleeping quarters to rest before driving. Neither did the appellee offer to provide LeMaster transportation home, as it later did all its other employees who worked on the derailment. Rather, the appellee provided LeMaster transportation to his car at Nolan, approximately twenty-five miles farther from his home than the derailment site. On the way to Nolan, the obviously exhausted LeMas-ter fell asleep with a lighted cigarette in his hand in the presence of another of the appellee’s employees.
Viewing these facts in the light most favorable to the appellants, we believe that the appellee could have reasonably foreseen that its exhausted employee, who had been required to work over 27 hours without rest, would pose a risk of harm to other motorists while driving the 50 miles from the appellee’s office to his home. Indeed, it could be said that the appellee’s negligent conduct under these facts was not merely a failure to exercise appropriate precautionary measures, but includes an element of affirmative conduct in requiring LeMaster to work unreasonably long hours and then driving him to his vehicle and sending him out on the highway in such an exhausted condition as to pose a danger to himself or others. When such affirmative action is present, liability may be imposed regardless of the existence of a relationship between the defendant and the party injured by the incapacitated individual. See Restatement (Second) of Torts § 321, Comment a (1965); Leppke v. Segura, 632 P.2d 1057 (Colo.App.1981). See also Clark v. Otis Engineering Corp., 633 S.W.2d 538 (Ct. of App.Tex.1982).
The appellee’s reliance on Pilgrim v. Fortune Drilling Co., Inc., 653 F.2d 982 (5th Cir.1981), is misplaced. In Pilgrim, where the plaintiffs claim was based on the employer’s negligence in failing to prevent an employee from driving 117 miles to his home after completing a 12 hour shift, there was no evidence that the employee was incapacitated, or that the conduct of the employer involved an affirmative act which increased the risk of harm. Indeed, it appears that the issue raised by the appellants in this proceeding was specifically not addressed in Pilgrim.
Accordingly, we conclude that the trial court erred in ruling that the appellee owed no duty to the appellants. We are unable to say as a matter of law that the appel-lee’s conduct in requiring its employee to work such long hours and then setting him loose upon the highway in an obviously exhausted condition did not create a foreseeable risk of harm to others which the appellee had a duty to guard against.
II.
The appellant next contends that any negligence on the part of the railway company was not the proximate cause of the appellants’ injuries, and therefore the trial court correctly directed a verdict against the appellants. The thrust of the appellee’s argument, and the basis upon which the court below posited its ruling, is that the negligence of LeMaster constituted an independent intervening cause of the accident which broke the chain of causation to the appellee.
We recently discussed the nature of an intervening cause which relieves a negligent defendant of liability in Perry v. Melton, 171 W.Va. 397, 299 S.E.2d 8 (1982). We held in syllabus point one of Perry: “An intervening cause, in order to relieve a person charged with negligence in connection with an injury, must be a negligent act, or omission, which constitutes a new effective cause and operates independently of any other act, making it and it only, the proximate cause of the injury.” Quoting Syllabus Point 16, Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963); see also Evans v. Farmer, 148 W.Va. 142, 133 S.E.2d 710 (1963); Smith v. Penn Line Service, Inc., 145 W.Va. 1, 113 S.E.2d 505 (1960); Hartley v. Crede, 140 W.Va. 133, 82 S.E.2d 672 (1954); Wilson v. Edwards, 138 W.Va. 613, 77 S.E.2d 164 (1953).
The theory advanced by the appellants at trial was that LeMaster’s negligent conduct was a direct result of the mental fatigue and physical exhaustion attributable to the appellee’s negligence in requiring him to work over 27 hours straight and then failing to provide rest or transportation home. In essence the appellants claim that “[t]he Defendant Railway’s negligence reduced the capability of its employee to think and act as a reasonable person.” If this is a reasonable conclusion to be drawn from the evidence presented, LeMaster’s conduct would not constitute an intervening cause so as to relieve the railway company of liability. See Perry v. Melton, supra. Moreover, if the intervening cause is one which is to be reasonably anticipated, the defendant may be liable, for “[t]he risk created by the defendant may include the intervention of the foreseeable negligence of others.” W. Prosser, supra at § 44.
These issues are questions for the jury. We have consistently held that “[t]he questions of negligence and contributory negligence are for the jury when the evidence is conflicting or when the facts, though undisputed, are such that reasonable men may draw difficult conclusions from them.” Syllabus Point 3, Davis v. Sargent, 138 W.Va. 861, 78 S.E.2d 217 (1953). See Danta v. Harper, 168 W.Va. 237, 283 S.E.2d 921 (1981); Brown v. Bluefield Municipal Building Commission, 167 W.Va. 318, 280 S.E.2d 101 (1981); Board of Ed. of Ohio County v. Van Buren and Firestone Architects, Inc., 165 W.Va. 140, 267 S.E.2d 440 (1980); Wise v. Crown Construction Co., Inc., 164 W.Va. 393, 264 S.E.2d 463 (1980); Bradley v. Sugarwood, Inc., 164 W.Va. 151, 260 S.E.2d 839 (1979); Sullivan v. Billey, 163 W.Va. 445, 256 S.E.2d 591 (1979); Bourne v. Mooney, 163 W.Va. 144, 254 S.E.2d 819 (1979); Burgess v. Jefferson, 162 W.Va. 1, 245 S.E.2d 626 (1978); Utter v. United Hospital Center, 160 W.Va. 703, 236 S.E.2d 213 (1977); Wager v. Sine, supra. See also Restatement (Second) of Torts § 434 (1965). We believe that on the evidence, reasonable persons could draw differing conclusions regarding the appellee’s responsibility for the appellants’ injuries. Accordingly, the trial court erred in directing a verdict for the appellee.
For the foregoing reasons, the order of the Circuit Court of Wayne County which grants the motion of Norfolk & Western Railway Company for a directed verdict is reversed, and the case is remanded for proceedings consistent with this opinion.
Reversed and remanded.
. But see Justice Andrew's dissent in Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 349, 162 N.E. 99, 102 (1928) ("Due care is a duty imposed on each one of us to protect society from unreasonable danger, not to protect A, B, or C alone.").
. The genesis of this approach can be found in Justice Cardozo’s classic opinion in Palsgraf v. Long Island R.R. Co., supra, note 1, where he states: "The risk reasonably to be perceived defines the duty to be obeyed." 248 N.Y. at 344, 162 N.E. at 100.
. The court in Pilgrim framed the issue in this manner:
In their brief plaintiffs argue that "[i]t is negligent to allow a fatigued employee to drive on the public highways.” They then suggested that "[t]he duty is to furnish transportation to exhausted employees, furnish sleeping quarters near the work site, reduce working hours, or otherwise supply alternatives to exhausted employees driving on public roads.” We are not concerned here whether it is negligent for an employer to fail to furnish transportation to exhausted employees, to fail to provide sleeping quarters near the work site so exhausted employees can rest before driving, to fail to reduce working hours, or to otherwise fail to supply alternatives to exhausted employees driving on public roads. We are only concerned with whether it was negligent for this employer to permit its employee to drive home in an exhausted condition. That is the legal theory involved in the special issue submitted to the jury. We express no opinion on whether an employer could be negligent by failing to provide transportation to exhausted employees, to furnish sleeping quarters to them, etc. since we do not have the question before us.
653 F.2d at 982, fn. 8 (emphasis in original).
The appellants’ complaint, on the other hand, alleges that the appellee was negligent in requiring LeMaster “to work for ... approximately thirty-two (32) hours straight without rest, and then to leave the ... place of employment without providing either rest or transportation home when it knew or should have known that its employee constituted a menace to the health and safety of the public." Thus, the issue raised by the appellants is precisely that unaddressed by the Fifth Circuit in Pilgrim v. Fortune Drilling Co., Inc., supra. | [
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McWhorter, Judge:
Thomas B. Harness and Anna K. Harness, his wife, executed the following lease:
“In consideration of the sum of twelve hundred and fifty dollars, the receipt of which is hereby acknowledged, Thomas B. Harness and Anna K. Harness, his wife, of Pleasants County, West Yirginia, first parties, do hereby grant unto M. Finnegan, of Pittsburg, second party, his heirs and assigns all the oil and gas in and under the following described premises, together with the right to enter thereon at all times for the purpose of drilling and-operating for oil, gas or water, and to erect and maintain all buildings and structures and lay all pipes necessary for the production and transportation of oil, gas or water taken from said premises, excepting and reserving, however, to first parties the one-eighth part of all oil produced and saved from said premises, to be delivered in the pipe line with which second party may connect their wells, namely: All that certain tract of land situ-are in the district of Grant, county of Pleasants in the State of West Yirginia, bounded and described as follows, to-wit: on the north by the Ohio river; on the east by lands of W. S. Harness, Sarah A. Bumgardner and Bell Bros.; on the south by lands of Bell Bros, and 0. Williamson and Bull Creek; on the west by lands of Coffin, Alimass & Co. and' Ambrozine Boss, known as the river farm of one hundred and fifty-two acres, belonging to T. B. Harness. And the back lands of thirty-five and one-half acres belonging to Anna K. Harness, containing one hundred and eighty-seven and one-half acres more or less, to have and to hold the above premises on the following conditions: Term of lease two years and as much longer as oil or gas is found in paying quantities. If gas only is found, second party agrees to pay two hundred and fifty dollars each year, quarterly in advance for the product of each well while the same is being used off the premises. Gas free for dwelling house purposes. No well shall be drilled nearer than ten rods to any building now on said premises, without the consent of first party. In case no well is completed within sixty days from this date, then this grant shall become null and void, unless second party shall pay to said first party one hundred dollars for each month, thereafter such completion is delayed. Rentals payable at the Second National Bank of Parkersburg. The second party shall have the right to use sufficient gas, oil or water to run all necessary machinery for operating said wells, and also the right to remove all its property at any time. And all conditions between the parties hereto shall extend to their heirs, executors, administrators and assigns forever. It is hereby agreed and understood that if the well now drilling on the Angus farm should make twenty-five barrels of oil per' day for thirty days after completion then second party shall pay to first party an additional bonus of seven hundred and fifty dollars, if the first well on these premises shall produce twenty-five barrels of oil for thirty days after completion an additional bonus of five hundred dollars shall be paid. Now it is also understood that if the Angus well should produce less than twenty-five barrels of oil per day, and the second well on these premises should produce- twenty-five barrels of oil per day, for thirty days after completion then second party shall pay to the first party seven hundred and fifty dollars, making the additional contingent bonus not to exceed twelve hundred and fifty dollars. And it is further agreed that the second party, his heirs or assigns shall have the right at any time to surrender up this lease and be released from all moneys due, and conditions unfulfilled, then and from that time this lease and agreement shall be null and'void, and no longer binding on either party, and the payments which shall have been made be held by the party of the first part as the full stipulated damages for the non-fulfillment of the foregoing contract.
In witness whereof, the parties hereto have hereunto set their hands and seals this 25th day of January, A. D. 1896.
ThoMAs B. Harness, [Seal]
Annie K. HARNESS, [Seal]
M. Finnegan. [Seal]”
“Witness: R. W. Wallace.”
Which was duly acknowledged and recorded. By a writing dated February 4, 1896, duly acknowledged and recorded, M. Finnegan, in consideration of nine hundred and thirty-seven dollars and fifty cents, assigned, transferred and set oyer to the Eastern Oil Company, its sneeessors and assigns an undivided three-fourths part of said lease, and by another writing dated January 1, 1898, acknowledged and recorded, said M. Finnegan, in consideration of two thousand and fifty dollars paid, transferred and assigned to Charles 0. Amsler, among other leases, his remaining undivided one-fourth interest in said Harness lease, ‘‘ together with all wells, casing, rigs, tanks, pipe connections and anything thereto belonging, subject however, to all the terms, conditions, royalties, rents and payments as far as the one-fourth (%) interest is concerned, in said leases contained, reserved and provided, to be observed, performed and paid by the lessees therein.” The lessees entered into possession under the lease, and drilled two wells, one being a strong gas well and producing a small quantity of oil, but not sufficient quantity to make any further bonus payable to the lessors under the terms of the lease. The lessors paid the gas rental of'sixty-two dollars and fifty cents per quarter, and it is stipulated and agreed in the record as a fact to which proof was waived, that the sum of one thousand two hundred and fifty dollars bonus mentioned in the lease of January, 1896, was paid in fact, and further that the quarterly installments for rental for gas from the Harness well No. 1, being sixty-two dollars and fifty cents each quarter had been paid in full up to that time (March 27, 1900), and that no such gas rentals were in default. At the June rules, 1899, of the circuit court of Pleasants County, Thomas B. Harness and Anna K. Harness, filed their bill against the Eastern Oil Company, a corporation, and M. Finnegan, alleging the fraudulent assigmnent of a part of said lease by Finnegan to the Eastern Oil Co., that the Eastern Oil Co. was operating extensively on a property adjacent to the leased premises and was using the gas 'from the well No. 1 on leased premises in the pumping and production of oil on the adjacent premises, and failed to test first well, which was a gas well and sprayed some five barrels of oil per day, and abandoned the second well and thereby forfeited their lease; that plaintiffs’ premises, or the greater part thereof, was very valuable for oil, if properly developed would produce oil in paying quantities,- but the premises were being drained by developments on contiguous and adjoining properties; that defendants made no attempts to develop the thirty-five and one-half acre tract and that the lease as to that was absolutely forfeited, and that the lease was a cloud on plaintiffs’ title that should be removed by decree of the court; that defendants were not protecting the lines of the leased premises and prayed for the cancellation of said leases as to both tracts of thirty-five and one-half and one hundred and fifty-two acres as a cloud upon plaintiffs’ title; that a special receiver be appointed with direction to take immediate possession of the premises and protect the lines and make such developments as the court shall deem necessary; that defendants be enjoined from any trespass or developments on said premises and for general relief.
Defendant Eastern Oil' Company demurred to the bill, and filed its answer, denying any construction of the lease inconsistent with its terms, and the improper or fraudulent .assignment of a part of the lease by Finnegan to the Eastern Oil Company, and refer to the sworn answer of plaintiffs in the case of Bettman v. Harness, decided in this Court in November, 1896, where the plaintiffs join with Finnegan and the Eastern Oil Co. in maintaining the said assignment of Finnegan to said Company. Alleging that Finnegan had assigned his remaining one-fourth interest to Charles Amsler and that Finnegan had no further interest in the lease; admitting and charging that it had put down two wells on the one hundred and fifty-two acres, that it was done in connection with said Finnegan, that gas was obtained in paying quantities in the Berea grit sand in the first well, and that the well sprayed at the start some five barrels of oil per day, but denied that it could have been made a producer of oil or gas in the Cow run sand, and denies that it was a producer of gas in the big Injun said; charges that it made a show of oil in the Cow run sand, and that nothing was found in the big Injun sand except salt water; that the most advantageous use both to the lessors and lessee of the first well was to case off liquids, from the big Injun sand, and to use the gas from the Berea grit, at the same time preserving what oil could be produced from the Berea, which was done after the well had been fairly tested, and that from the time the well was completed in the spring of 1896, until the present time oil had been produced as well as gas from that well, one-eighth of the oil had been delivered to and received by said Thomas B. Harness and Anna K. Harness, and respondent had further used the gas from that well off the premises, and had regularly and promptly paid in quarterly installments tlie sum of two hundred and fifty dollars per year for such gas, and gas and oil were both at that time being produced from that well; that respondent drilled and completed a second well with said Finnegan, but failed to find oil in paying quantities, that well was tested, but respondent was unable to get any production therefrom, except gas upon which respondent paid at the rate of two hundred and fifty dollars per year as long as the gas continued to flow. Respondent tested both said wells in order to obtain the best results, in which respondent was more interested than plaintiffs, and denied every statement in the bill to the contrary; that respondent was, in connection-with said Amsler still producing both oil and gas from the well known as Ho. 1, and still had some casing in well Ho. 2, but denied anything had been done by it to avoid drilling on the property, or that any wrong towards plaintiffs had arisen under said lease. Denied oj>erating on adjacent lands, except it drilled two wells on the Ross land, that the two drilled on plaintiffs’ land offset them, being same distance from the line dividing the two properties, that one of the Ross wells at its maximum produced not over fifteen barrels per day and was then producing two barrels per day, that the other Ross well never-produced more than five barrels per day, and at that time was producing about and not exceeding one barrel of oil per day; that respondent had seven wells of an aggregate or about thirty barrels per day about one-fourth mile from line of the Harness land, in no case being less than one thousand one hundred feet; denied that it had at any time abandoned the property or any part of it, or that it had forfeited any rights under its lease, or that the lease had expired, or that it had cased off any oil in either of the said wells or that it had abandoned any rght acquired under said lease; that in connection with said Finnegan it bored two wells at the cost of drilling and equipping over eight thousand dollars, and the two hundred and fifty dollars per year gas rental paid by defendant was more than the benefit received from gas from the property, but had been paid along with royalty from oil in hope and expectation that some line or some indication might be given on the property justifying the expenditure of further sums in the development and production of oil; alleging that the territory is what is known in the oil business as “spotted,” and while defendant believed probably that some oil existed in plaintiffs’ land, had been unable to find same in paying quantities, and still engaged in developments in that neighborhood, not close enough to drain plaintiffs’ land which might show the probable direction of oil lines not then ascertained, and filed as exhibit a plat of plaintiffs’ land and contiguous territory showing what it was doing; that respondent was engaged in no other business except production of oil and gas and employed only such agents and experts in their respective lines as were known to be competent for such business, charges that said one hundred and eighty-seven and one-half acres were leased as one tract, and denied that the lease was forfeited as to the thirty-five and one-half acres for non-development, but had several times proposed and stated to plaintiffs that it would at any time turn over and release the thirty-five and one-half acres if any person would in good faith drill a well on it and test it for oil, and again offered to do so, on condition that it should be drilled and thereby help to develop and demonstrate the value of the one hundred and fifty-two acres from which respondent was then producing oil and paying gas rent. Denied that it had made default in development of the property, and charged that it had fully protected the lines of the lands. Denied that there was any well in the neighborhood of plaintiffs’ land that was draining it, or against which any wells needed to be drilled for protection of the lands, and denied there was any ground for appointment of a receiver to take away defendant’s property to make developments thereon, and submits that if plaintiffs knew or if the court could in any manner ascertain where a well or wells should be bored on the leased premises, then a reasonable opportunity should be given to defendant to bore such wells and to produce oil therefrom before its rights under the lease are disturbed, and denies that its lease is any cloud upon plaintiffs’ title or of that of either of them.
Plaintiff at April rules, 1900, filed an amended and supplemental bill, making Charles 0. Amsler, P. Langton, P. J Langton and Eureka Pipe Line Co., a corporation, parties, making the original bill a part thereof, alleging that Eastern Oil Co. and Charles 0. Amsler by contract in writing dated December '28, 1899, pretended to convey a one-half interest in said lease to P. and P. J. Langton, except in wells 1 and 2 already drilled on the premises, for whcih interest said Langtons were to begin at once and drill a well to completion on said premises, and to further develop the premises if it was found to be profitable territory, and exhibited said contract; that said matters of transfer Rad come to plaintiffs’ actual knowledge since the filing of the original bill; that nothing was done by Eastern Oil Co. except as alleged in original bill until long a'fter the institution of the suit, when it contrary to directions and express notice of plaintiffs, undertook to put down a well on a portion of the land and pretended it was dry,- all of which actions were done against the protest of plaintiff Thomas B. Harness, one whose portion of land the said well was pretended to he put down; that subsequently under the agreement with Langtons they put down another well on said plaintiffs’ portion of land where Thomas B. Harness always claimed oil could be found in paying quantities; that said well was drilled against plaintiffs’ express notice and protest; that oil in paying quantities has been found in said last mentioned well; demonstrating beyond question that the original wells as alleged in plaintiffs’ original bill were in fact paying, oil producing wells, but were abandoned by the said company, which abandonment worked a forfeiture, of the entire lease for oil purposes, that all the drilling last mentioned had been done by aid Eastern Oil Co. long after defendant had forfeited the same, and every part of it; alleging that the last clause in said lease o'f January 26, 1896, in relation to the surrender of the lease by the lessee at his pleasure, was not mentioned' and that by that provision after the cessation of payment of rental on said lease, and after plaintiffs had ceased to receive rental, plaintiffs had the right at any time to terminate the lease; that defendants had no right to bore said last two wells, having had notice of the expiration and forfeiture of said lease; that'plaintiffs have always since the date of cheir title to said land, and especially date of said lease been in the peaceable and uninterrupted possession of said premises, and entitled to the exclusive possession for ail purposes since the expiration of the two years in which defendants had right to comply with the terms of the lease, and since said two years expired defendants have been trespassers and said lease constitutes a cloud upon their title, which in view of the fact o'f plaintiffs’ possession, they have a right to have removed by a court of equity; that defendant’s acts in extracting the oil without authority is a destruction of the inheritance for which there is no adequate remedy at law; that defendants were there pumping said well and delivering the oil therefrom to the Eureka Pipe Line Co., a common carrier of oil, defendants were getting the benefit of the oil while plaintiffs were entitled to the whole of it, and again alleges tbe necessity of a receiver, and prays for an injunction to restrain defendants from pumping, boring for or producing oil, the Pipe Line Co. from delivering them the oil, and that the lease be cancelled, set aside and annulled as a cloud upon the title o'f plaintiffs and for general relief.
All the defendants except the Eureka Pipe Line Company demurred to the amended and supplemental bill, and filed their answer thereto, adopting the answer of the Eastern Oil Co., to the original bill as far as the same was pertinent, and charge the same was true as of the time it was filed; admit the contract with the Langtons of December 28, 1899; that in September, 1899, they commenced a well on the one hundred and fifty-two acres and completed the same to and through the Cow run sand, that when completed it was absolutely dry and produced no oil or gas, said well marked No. 3, admit that a well had, within the then past sixty days, been completed under the contract with Langtons on the Harness land north of No. 1, and marked No. 4, that said well since about the 1st of March, 1900, had been and was then producing about twenty barrels of oil per day; one-eighth of which had been delivered into the pipe lines of the Eureka Pipe Line Co. to credit of plaintiffs according-to terms of lease of January 26, 1896; deny that either No. 1 or No. 2 were oil producing wells except as to No. 1, the production of which had been regularly paid as to the royalty according to the terms of said lease; deny the abandonment of the lease or any right thereunder, but allege it to be in full force and effect, and had been fully complied with; aver that the lease was executed upon a bonus and actual payment of one thousand two hundred and fifty dollars, paid to plaintiffs and within a year from the date of lease some oil was produced in No. 1, the royalty of which had been regularly paid to plaintiffs. In addition to that the Eastern Oil Co. had paid two hundred and fifty dollars in quarterly installments from August, 1896, to that time to plaintiffs for the use of gas from that well, and that since about August, 1896, plaintiffs had received and used as fuel in their home and residence the free use of gas from well No. 1, and were still using it. Admits that wells 3 and 4 were drilled after this suit was commenced, and after said defendants were notified by Harness not to drill further on the premises, but submit that they or their assignees were entitled to drill said wells, and that said well No. 4, as well as No. 3, was drilled under the terms of the original lease, and while the same was in full force and effect; that while some formal expression of dissent was given by said T. 33. Harness against the drilling of said wells 3 and 4, in fact the minor son of Harness, residing with his father and under his control, worked upon the drilling of both of said wells Nos. 3 and 4, and that Thomas B. Harness himself assisted in work necessary to the drilling of No. 4. [Respondents say the last clause of the lease does not make the same voidable at the option of the plaintiffs; deny that the lease expired in two years after its date, and charge that gas and oil had been produced in paying quantities from said premises and were yet being produced, and this had resulted from the operations and expenditures made by the defendants thereon; aver that twenty barrels of oil per day was then being produced from the property and being delivered to the Eureka Pipe Line Company, one-eighth to the credit of plaintiffs and seven-eighths working interest to credit of lessees, to whom it belonged; deny that plaintiffs were entitled to the whole production ; and deny that plaintiffs have any good cause or reason to complain of defendants or any.of them; allege the solvency of all the defendants; that all the oil produced is being run into the hands of the Eureka Pipe Line Co., which is a solvent and responsible corporation; that the oils produced are being regularly gauged and accurately measured and no part wasted, and there is no cause for an injunction against defendants or for a receiver of said property; admit that plaintiffs are in possession of the premises, but subject to the terms of the lease of January, 1896, and that defendants are in possession of the premises and have been for years, and operating the same in good faith and paying to lessors everything that was agreed or required under said lease, and deny all allegations of the several bills, except so far as same are expressly admitted.
Depositions were taken and filed in the cause for plaintiffs and defendants, and the cause submitted on the 20th of June, 1900, on the bills, demurrers, answers and replications, the depositions and exceptions to the depositions. On motion of plaintiffs the suit was abated as to the Eureka Pipe Line Company. The court overruled the demurrer as to the supplemental bill,' and was of the opinion and so decreed that as to all the territory embraced in the lease of January 25, 1896, said lease being a lease for the purpose of development save and except as to wells Nos. 1, 4, 5 and well No. 6, said to be drilling in said lease, and a reasonable acreage surrounding the same for the protection thereof had expired at the date o'f the institution of this suit, and was declared a cloud upon plaintiffs’ title and removed as such, but as to wells 1, 4, 5 and 6, defendants were permitted to take the production thereof and use the premises as provided in said lease of January 25, 1896, subject to the rights of plaintiffs to receive their royalty in the oil and the payment for the gas as provided for in said lease, and enjoined defendants from any other operation upon the premises, except as aforesaid. From which decree the defendants Eastern Oil Co., Charles O. Amsler, P. J. Langton and P. Langton appealed, and say the court erred in overruling the demurrers; that plaintiffs neither averred nor proved any equity; that if plaintiffs had cause of action their remedy was at law; that it was error for the court to decree that the lease of January 25, 1896, had in any manner expired or become inoperative, either at the time of the commencement of the suit, or at the time of the rendition of the decree; that it was error to cancel the said deed of January 25, 1896, as to any portion of the territory embraced or covered thereby; it was error to hold or to decide that said lease had expired or ceased to operate, when the lessors at the very time of the decree were in the receipt of benefits under the lease according to its stipulated terms, and while gas was being found, furnished and paid for unto the lessors, and while oil was being found in paying quantities; that it was error to enjoin defendants from enjoyment of any part of the territory embraced in the said lease, and from operating the entire one hundred and eighty-seven and one-half acres set forth in said lease according to its ■terms, and that it ivas error to entertain the suit upon a mere ejectment bill.
The first and sixth assignments are to the same effect. Ap-pellees insist mat the lease should be cancelled in any event as to the thirty-five and one-half acres belonging to planitiff Anna K. Harness, because it is conceded and defendants do not pretend that they have done anything whatever looking to the development of that tract. An inspection of the lease will show that the two tracts are leased as one tract of one hundred and eighty-seven and one-half acres jointly by the two owners, they were mentioned separately merely for convenience of description, then described as “containing one hundred and eighty seven and one-half acres, more or less, to have and to hold the above premises,” etc. The royalty of one-eighth of all oil produced and saved from said premises was reserved to the “first parties” to be delivered in the pipe line with which the second party might connect their wells. The payments of the gas rentals were paid to and receipted for by the lessors jointly, and the oil royalty was run into the pipe line to their joint credit. The lease shows on its face to be a joint lease of a single tract, and the lessors and lessees have so treated, it all the way through. Appellees rely largely upon Bettman v. Harness, 42 W. Va. 433, and Steelsmith v. Gartlan, 45 W. Va. 27, in support of their contentions. The leases in both those causes were different from this. In the former cause the same parties who are plaintiffs in this cause leased the same one hundred and eighty-seven and one-half acres in controversy here to Gilbert L. Watson “in considerauon of the covenants and agreements hereinafter mentioned,” granted, demised and let unto the party of the second part, his heirs and assigns for the purpose and with the exclusive right to explore for oil and gas, to lay pipes, etc., * * * to have and to hold the said premises for the said purpose only to the said lessees, etc., for the term of two years from the date of the lease, and as much longer as oil or gas is found in paying quantities, or the rental paid thereon, and in consideration of said grant the lessee was to deliver to the lessors in pipe lines one-eighth of the oil obtained from the premises and two hundred and fifty dollars for the gas from each well, so long as the same should be sold off the promises. Operations wore to be commenced and a well completed within one month, and on failure to complete, lessee was to pay fifteen dollars per month in advance after the time for completing, which was to be received by lessors in full pajunent for such delay until the well should be completed. No operations were begun within the two years and it was .properly held that lessee could not continue the lease after the end of the two years by the payment of fifteen dollars per month, the lease having ended with the two years. While in Steelsmith v. Gartlan, the lessor in consideration of one dollar and other valuable considerations granted to lessee all the oil and gas in and under the leased premises for the purpose and with .the exclusive right of operating it for gas and oil with right of way, to lay pipes, etc., for term of five years and so much longer as oil and gas should be found in paying quantities, paying to the lessor one-eighth of all the oil produced and saved and two hundred dollars per year for the gas which might be sold therefrom, lessee to complete a well within one month from date of lease in default of which the lease was to become null and void unless lessee should pay for further delay at the rate of fifty dollars per month in advance thereafter until a well should be completed. The lessee went into possession and drilled a well, completed it three months after the time for completion, paying and satisfying the lessor for the delay. The well completed was a “dry hole.” Lessee removed his machinery and property from the leased premises and abandoned the lease, after drilling the well at large expense. Mrs. McGregor, the lessor having an opportunity to re-lease the premises notified the lessee several times of her desire and opportunity to lease to other parties, giving lessee the preference to devlop the property under his lease, but he still failing to do so, she leased to other parties, and it was held, syl. 1: “A lease for the purpose of operating for oil and gas for the period of five years, and so much longer as oil or gas is found in paying quantities, on no other consideration than prospective oil royalty and gas rental, vests no present title in the lessee except that the mere right of exploration; but the title thereto, both as to the period of five years and the time thereafter remains inchoate and contingent on the finding, under the explorations provided for in such lease, oil and gas in paying quantities.” And it was further held, syl 2: “The completion of a non-productive well, though at great expense, vests no title in the lessee,” and syl. 3: “Such lease must be construed as a whole, and if there is no provision therein contained requiring the boring of another well after the first unsuccessful attempt is completed and abandoned, the lease becomes invalid, and of no binding force as to any of its provisions.” The lease in the case in hand is on a very different footing from either of those just mentioned. Here the lessee paid in cash for the oil and gas on the premises, one thousand two hundred and fifty dollars — being six dollars and sixty-six cents per acre for the whole leased premises, one hundred and eighty-seven and one-half acres, and proceeded to drill and complete a well in a short time after the time it was to be completed under the contract, the lessee paying and satisfying the lessors for the time of delay as provided in the contract. The well proved to be a good gas well, which furnished lessors heat and light for domestic purposes and being used off the premises the lessees paid the lessors two hundred and fifty dollars per annum in quarterly installments. Said well also furnished some oil, which has been pumped and saved from the completion of the well, to the present which was run into the pipe lines, one-eighth to the credit of lessors. Another well' was also drilled before the completion of said producing well, which proved a failure, furnishing neither gas nor oil in paying quantities, except a little gas for a short time which was used to complete the well No. 1, which has always been operated since its completion, paying the lessors as before stated two hundred and fifty dollars a year for the gas, and their one-eighth of the oil, besides gas for their home purposes, gas rental was paid on well No. 2 some forty days until it ceased to flow. In the fall of 1899, defendants drilled another well designated No. 3, which T. B. Harness says was finished about October 21, 1899, upon which well the minor son of T. B. and Anna K. Harness, who lived with his parents, worked, and which T. B. Harness says he served notice on the defendants to “shoot the well and put it to pumping.” He further says that No. 4 was drilled into the sand on the 17th day of February, 1900, and No. 5 drilled in on April 26, 1900; that No. 4 was put to pumping March 1, 1900. When well No. 4 was being bored, notwithstanding Harness notified lessees not to bore, his minor son, Bobert Harness, worked on the well as one of the tool dressers, and the father Thomas B. Harness was present much of the time. P. H. Langton, a witness, and one of the contractors for drilling the well, says, “He was there most of the time, for curiosity, I suppose.” “State whether or not he took a hand in matters at all.” “Yes, sir, he did directly and indirectly. He helped us one- day to put a smoke stack together directly, and furnished us a monkey-wrench to fix an engine one night.” 4 Am. and Eng. Dec. 349. “One who receives the benefit of a contract cannot deny that he made it or assert its invalidity, whether on the ground that it was ultra vires, or that it was made by an unauthorized agent, or that it was not executed as required by law, nor on any other ground,” and cases there cited. The territory embraced in the lease in this case is clearly shown to be what is known as “spotted territory.” Well No. 1 proved to be a good gas well, and furnished constantly a little oil, which was pumped and saved; the plaintiffs (the lessors) believing it to be good oil territory were exceedingly anxious to have it developed, and nothing is more natural than that they should be, and this accounts for the interest taken by Harness in the drilling of wells three and four on his land, and that although he had notified lessees not to drill, yet he wanted his territory developed, and took part in the drilling and completion of the .wells, by notifying them to “shoot No. 3 and put it to pumping/’ as stated by him, and was present assisting with No. 4, which came in a twenty barrel well, and continued a good producer, one-eighth of the product being run into the pipe line to credit of T. B. and Anna K. Harness, and the oil here began to flow into the pipe line so freely that the old gentleman concluded it would pay him better and be more satisfactory if he could receive not only the one-eighth but the eight-eighth as it was being pumped from wells four, five and six. The most unaccountable feature of it is that he would ask to enjoin the lessees from multiplying wells for his use, as it is a costly proceeding to drill an oil well. The lessees having like territory on the Ross lease adjoining this were at the same time testing its value as an oil field, and the evidence shows that neither was given a special preference over the other by the lessees. The two wells, one and two, on the Harness, were equidistant from the division line with wells five and seven on the- Ross lease, drilled about the same time. No. 5 for the first thirty days made thirteen barrels and No. '1 about three barrels, and had decreased to two and one barrels per day respectively, and No. 10 well on the Ross lease, about eight hundred feet from the line at its best about five barrels a day, had decreased to one barrel. These were the only wells that could at all probably interfere with the Harness interests, while “dry holes,” dotted all around the Harness and the Ross. Including other wells on the Ross one thousand one hundred and more feet away, thirty barrels a day in the aggregate was the most that was being taken, and only the three barrels from five and seven on the Ross which might possibly affect the Harness interests in any degree, and this was offset to some extent by the production from Harness No'. 1, was all there could likely be on the drainage theory, upon which point plaintiffs utterly fail in proof. But was there any default under the conditions of the lease, which is for “term of two years and as much longer as oil- or gas is found in paying quantities?” It is not only admitted but alleged in plaintiffs’ bill that gas was found in paying' quantities, and has been constantly produced and paid for as stipulated up to the time of and since bringing this suit two hundred fifty dollará per year in quarterly payments. The moment oil or gas was found and produced in pay ing quantities, title thereto vested in the lessee under the lease, which must be taken as a whole and construed together. It cannot be separated. Both oil and gas are.produced from the same well. Both are drilled for at the same time in the same well, and the production of either in paying quantities preserves the lease. Suppose in well No. 1, oil in paying quantities had been .produced, and no gas, do plaintiffs contend that the lease is forfeited for that reason ? With the same propriety they could have brought their suit to remove the lease as a cloud upon their title because gas was not produced. Gas is just as distinctly an article of commerce and trade as is oil. And if lessees fail to reasonably develop the leased territory or fail to protect the lines of the premises by boring other wells to prevent drainage to the prejudice of lessors’ rights, their remedy, as held in Ammons v. So. Penn Oil Co., 35 S. E. R. 1004, “is not by way of forfeiture of lessees’ right to bore or drill for oil on the land or any part of it, but by an action or proceeding for damages caused by said breach.” Colgin v. Oil Co., 194 Pa. St. 234; Young v. Oil Co., Id. 243.
The appellees in bringing their suit evidently were relying upon Klepner v. Lemon, 176 Pa. St. 502, but after the institution of their suit, and about the time it was heard, the cases of Colgin v. Oil Co., and Young v. Oil Co., supra, were decided, holding that under the decision in the Klepner-Lemon case the court only had equity jurisdiction because of the fraud on the part of the lessee, who had oil and gas leases on adjoining properties, upon which he had put down wells' near the boundaries of plaintiff’s land with the express purpose of securing the oil under plaintiffs’ lands through these wells, in which case the -lessee was required to drill another well to protect the lines of the lessor in default of which the leasehold estate should be deemed to be abandoned except as to the well actually drilled on plaintiff’s land, and a certain specified space around it. In that case Judge Mitchell dissented, and in his dissenting opinion said: “I would reverse this judgment as a flagrant violation of the liberty and sanctity of contracts by raising a purely factitious equity to enable the complainant now to make a better bargain at the defendant’s expense than he chose or was able to make for himself at the time.” The cases of Colgan and Young, 194 Pa. St., virtually overrule Klepner and Lemon. In case at bar, there is an attempt to have their claim for relief on fraud in order to give the court jurisdiction. The first charge of fraud in the bill is the assignment by Finnegan of an interest in the lease to the Eastern Oil Company, contrary to an alleged oral agreement on the part of Finnegan at the time of taking the lease not to so assign it; -the answer to that is that there is nothing in the lease to that effect, and there is in it authority by plain implication to assign it, being made to Finnegan, his heirs and assigns, and no parol evidence can be introduced to vary the terms of a written contract. Glass Co. v. Friedlander, 84 Wis. 53; Irwin v. Irwin, (Pa.) 29 L. R. A. 292; Landers v. Cooper, 115 N. Y. 279, (5 L. R. A. 638) 5 L. R. A. 677; Tuttle v. Burgett (O. St.) 30 L. R. A. 214. Their further charge of fraud is the wilful destruction of wells by the shutting off oil by casing when it was found in paying quantities. This is both unreasonable and improbable, that men spending large sums of money in search of oil when they find it, should smother it and shut it off when it is the very thing they are seeking at large expense. The only evidence we have of this, is that of. Thomas B. Harness, who doubtless believed that his land was underlaid with a sea of oil, and all that was necessary was to bore a hole and pump it up. Others speak of a little show of oil in the course of the work of drilling, which lesees admit they had, but he is the only one who.found it in large quantities. He was not a pracitcal oil man, and knew nothing about the business, and on this matter he is contradicted by all the operators whose interest in getting large quantities of oil was even much greater than that of Harness, they all stating unequivocally that everything possible was done to make the wells productive, and that the interests of the lessees would be subserved by the production of the oil in large quantities, and one of the strongest witnesses on this point is Finnegan, who at the time of testifying had no interest in the matter whatever. As stated in the answer of defendent Eastern Oil Co. by its vice president, Howard A. Forman, to the original bill, the territory was “spotted,” and while the gas rental paid of two hundred and fifty dollars per year was more than the benefit received from the gas from the property, but the same had been paid along with the royalty from oil in the hope and expectation that some line or some indication might be given on the property justifying the expenditure of further sums in the- development and production of oil, and for that purpose.was still engaged in developments in that neighborhood not close enough to drain plaintiffs’ land, which might show the probable direction of oil lines not then ascertained. In Colgan v. Oil Co., 194 Pa. St., it is held that “A court of equity will not assume jurisdiction to enforce specifically covenants in an oil and gas lease which are merely implied, and whose extent depends altogether on oral evidence of opinions, unless it appear that the lessee is fraudulently evading his obligations to the lessor,” which case, as well as that of Young v. Oil Co., 194 Pa. St., is approved in Ammon v. So. Penn Co., 35 S. E. R. 1004. But the principle of actual fraud shown which governed in the Klepnar-Lemon Case, the court giving the lessee a time in which to drill a well to further develop, could not apply here, because other wells were drilled, and good producers of oil before any decree was entered in the cause. It is clearly shown that defendants were acting in good faith, and had in no wise abandoned their lease, and the plaintiffs have not been defrauded out of any oil they were entitled to. The lessees at very large expense in addition to the first sum of one thousand two hundred and fifty dollars paid for the oil and gas have developed the lands of plaitniffs, who are now getting, or are entitled to get the proceeds of several oil wells, which are being run into the pipe lines, and would be probably getting more, but for the injunction granted in the cause, as at least one or two other wells were being bored by lessees. The provision in the lease that in case the well being then drilled on the Angus farm should make twenty-five barrels a day for thirty days, then there should be an additional sum of seven hundred and fifty dollars paid to plaintiffs, and if the first well drilled on the Hamp farm should produce a like quantity, they should be paid five hundred dollars additional, and if the Angus well should produce less than twenty-five barrels per day and the second well drilled on the premises leased should produce twenty-five barrels per day, then they were to be paid seven hundred and fifty dollars was of no value to plaintiffs, as none of the wells mentioned came up to the quantity prescribed. Appellees insist that under the ruling of this Court in Eclipse Oil Co. v. So. Penn Co., 34 S. E. R. 923, and Cowan v. Iron Co., 3 S. E. R. 120, 83 Va. 347, by reason of the last clause of. the lease, “And it is further agreed that the second party, his heirs or assigns shall have the right at any time to surrender up this lease and be released from all moneys due and conditions unfulfilled, then and from that time this lease and agreement shall be null and void, and no longer binding 'on either party, and the pay ments which shall have been made he held hy the party of the first part as the full stipulated damages for the non-fulfillment of the foregoing contract/’ they had the right to terminate the lease for want of mutuality. The ruling in the Eclipse Oil Co. Case holds that “An executory gas and oil lease, which provides for its surrender at any time, without payment of rent or fulfillment of any of its covenants on the part of the lessee, creates a mere right of entry at will, which may be terminated hy the lessor at any time before it is executed by the lesseeIn that case the lessee had paid nothing, had done nothing and could not be made to do or pay anything and it was properly held to he voidable for want of mutuality, hut it was only so until the lessor should void ot or until the lessee should begin work under it in good faith. The lessee having done nothing to carry out his agreement, not having entered upon the premises to develop the same, from the 11th day of May, 1897, the date of the lease, and having paid no consideration Cor the lease, on the 18th of June, 1898, the lessor leased the promises to another person, thereby terminating the lease. The case of Cowan v. Iron Co., was a mining lease, the ore and minerals sold to the lessee, and the purchasers invested with the usual mining rights, which were enumerated, and were to pay fifteen cents per ton for the ore as it was removed. They entered upon the premises and removd some two hundred tons and paid for it, and then abandoned the lease, removing all their machinery and property, and refused to release or cancel the agreement, though they had abandoned the business, either with or without consideration and announced their claim and asserted their right to hold the agreement as a deed by which they had purchased the ore, under which they were under no binding obligation to operate nor to pay any consideration, until it should comport with their own views of their interest in the matter; that they did not.propose to mine iron ore at a loss, nor would they allow others to operate this iron ore at a profit. The court held that the contract should be rescinded and cancelled. The principles of equity would not permit the lessees, without consideration, to hold the lease indefinitely for speculative purposes, to the prejudice of the interests of the lessor. Appellees here contend that under the lease “if oil in paying quantities had been found lessees would not have paid anything for the gas even though they used it off the premises.” It is true they did not bind themselves to pay for gas un less it was used off the premises. The gas used in developing the leased premises was not to he paid for, hut appellees for their purposes would construe the words “if gas only is found,” to mean that if oil as well as gas was found in paying quantities, that lessees could use all the gas they chose off the premises, and not pay for it. No court of equity would so construe it. The lease is for gas as well as for oil. Gas is useful for purposes of development, and while being so used on the premises, it is for the benefit alike of the lessees and lessors, but the lease must be taken us a whole and construed together, and whatever might be found on the premises in the way of gas and oil, lessees would be required to pay for gas used off the premises. Appellees contend by way of cross error that the court erred in giving in the decree to defendants wells Nos. 4, 5 and 0, and a sufficient acreage around each for the protection thereof, and refusing to cancel the lease as to these wells. If the court erred in cancelling the lease, as I think it did, of course it follows that the cross assignment is not well taken.
For the reasons herein given, the decree will be reversed, and the bill dismissed.
Reversed. | [
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SaNders, Judge:
This case is here on a writ of error to the judgment of the criminal court of Fayette county, convicting the defendant of embezzlement.
We are asked by the Attorney General to dismiss the case, for the reason that application for the writ of error should first have been made to the circuit court, or judge thereof, and upon the refusal of the court or judge to grant the writ, or upon the affirmance of the judgment by the circuit court after granting the same, then application could be made to this Court for such writ. The printed record does not show that the prisoner’s application for a writ of error was acted upon by the circuit court, but this is a clerical error, for the original transcript of the record shows that the defendant did present his petition to the judge of the circuit court for such writ, and that it was refused. Therefor, the law in this respect, has been complied with.
The conviction is sought to be upheld under section 19, chapter 18, Acts 1903, amending and re-enacting section 19, chapter 145, of the Code, which provides: “If any officer, agent, clerk or servant * * * of any incorporated bank, or other corporation * * * embezzle or fraudulently convert to his own use, bullion, money, bank notes, security for money, or any effects or property of any other person, which shall have come into his possession or been placed under his care or management, by virtue of his office, place pr employment, he shall be guilty of larceny thereof. In the prosecution of any such officer, agent, clerk or servant, charged with such embezzlement, fraudulent conversion or larceny, if it appear that the possession of such bullion, money, bank notes, security for money or other property is unlawfully withheld by such officer, agent, clerk or servant, from the person or persons entitled thereto, and that such officer, agent, clerk or servant has failed or refused to restore or account for such bullion, money, bank notes, security for money or other property, within thirty days after proper demand has been made therefor, such accused officer, agent, clerk or servant shall be presumed to be guilty of such offense; but the accused may rebut such presumption by disproving any such facts or by other competent testimony germane to the issue, upon the trial.”
The defendant is charged with having entered into a contract with the Prudential Insurance Company of America, a corporation, to solicit and write life insurance for it, and that he entered upon his employment thereunder as such agent, and solicited and received various applications for life insurance policies, and collected the premiums therefor, and fraudulently converted the amount thereof to his own use. The defendant admits the employment, and the collection by him of the various sums of money as premiums on said policies, but claims that he made a true accounting thereof to his emplo3Ter.
Embezzlement is purely a statutory offense. It was unknown to the common law, and the statute was enacted for the purpose of supplying what were regarded as defects in the common law of larceny, so as to reach and punish for the fraudulent conversion of money or property which could not be reached by the common law. And while our statute denominates the offense larceny, and concludes by providing that the person so committing an act of embezzlement shall be deemed guilty of larceny, yet embezzlement is generally regarded as a separate and distinct crime, and is so treated. The distinction between embezzlement and larceny is that embezzlement is the wrongful conversion of property without trespass, or where the original taking and possession is lawful. In order to constitute the offense, it is necessary that the property embezzled should come lawfully into the hands of the party embezzling, and by virtue of the position of trust he occupies to the person whose property he takes. Under our statute, referred to, it is necessary to show, first, the trust relation of the person charged, and that he falls within that class of persons named; second, that the property or thing claimed to have been embezzled or converted is such property as is embraced in the statute; third, that it is the property of another person; fourth, that it came into the possession, or was placed in the care, of the accused under and by virtue of his office, place or employment; fifth, that his manner of dealing with, or disposing of,. the property, constituted a conversion and appropriation of the same to his own use; and, sixth, that the embezzlement or fraudulent conversion of the property to his own use was with the intent to deprive the owner of his property.
A mere detention of money belonging to another, without a fraudulent intent to convert it to the use of the one by whom it is detained, and to deprive that other person'of such property, does not constitute embezzlement. The appropria tion of money held by an agent is not, under our statute, larceny, unless it be done with the fraudulent intent to deprive the owner of his property, or the use and benefit thereof. The mere fact of the appropriation or use of property may be an innocent exercise of dominion, if the intention exists to repay or restore it. It is the fraudulent intent that constitutes the offense — the intention to make an absolute appropriation, as contradistinguished from a temporary use without any design to defraud the owner or deprive him of his property. If the Legislature intended to make the mere use of money or other property mentioned an offense, it shoulclpiot have used the language in the act, which says, to “embezzle or fraudulently convert to his own use.”
Now applying the facts to this case. It is established, in fact, it is not otherwise contended, that the accused was the agent of the insurance company, and as such agent he solicited and wrote for it certain life policies, and received the premiums therefor. The persons for whom the policies were written, and the amount of the premiums paid therefor, need not be given, because there is no material difference, if any at all, upon this question. But while the State contends that thesejpremiums have not been paid to the insurance company, yet the defendant claims to have paid all the premiums collected by him, and in addition, that the company was indebted to him at the time he ceased to work for it. Therefore, upon this question, there is a direct conflict between the defendant and the witness, Carter, who was the agent of the company to whom the defendant was authorized to make these payments. The defendant claims that he made all these payments to Carter, while Carter denies this statement. These witnesses stand, in this case, with equal interests, because if Carter did receive the money, he is liable to his company the same as the defendant would be, if he has not made such payments. But, inasmuch as this was a question of fact, and the jury found that fact against the prisoner, the next question is, was there a fraudulent conversion of the money by the prisoner to his own use, with the intention of depriving the owner of his property; but if there has been a conversion of any kind shown, and if so, whether or not it is shown to have been done with fraudulent intent, so as to come within the foregoing definition, we will not say, inasmuch as the case must be reversed for another reason; neither will we refer to the evidence, es cept in so far as may be necessary in dealing with the other questions involved.
• The defendant complains that the court refused to permit him to introduce evidence showing the amount of money he had on deposit in the bank when he quit the employment of the company. In a prosecution for embezzlement, the law does not presume, merely because money has been entrusted to an individual, he has embezzled it; but when the State makes such charge, it must prove its truth. It does not devolve upon the defendant to disprove it, or to show what disposition he made of the money. “Since the crime of embezzlement depends upon the existence of a fraudulent intent in the mind of the person by whom the money or property is alleged to have been converted, a wide scope is given to the evidence which may be introduced by the State to show a fraudulent or criminal intent, or on behalf of the defense to show the absence thereof.” 10 Am. & Eng. Enc. Law, (2 Ed.), 1032, and cases cited. “Since from its nature intent is incapable of direct proof, great latitude is necessarily allowed in proving this element of the offense. Broadly speaking, any evidence is admissible which has a tendency, even the slightest, to establish fraudulent intent on the one hand, or on the other to show the bona fides of the accused.” 15 Cyc. 529.
On the question of fraudulent conversion and criminal intent, it is competent to prove the financial condition of the defendant. Proof of solvency would be admissible to show the improbabilty of the act, and all evidence and circumstances, how'ever slight, which tend to prove the improbability of the commission of an offense, should go to the jury, as the question of criminal intent is for the jury to pass upon, from all the facts and circumstances before them. “On the other hand, the fact that a person was in possession of money, tends to negative a desire to obtain it by crime or by borrowing, and is always admissible.” 1 Wig. on Ev., p. 476; and in U. S. v. Camp, 2 Idaho, 215, the Court held: . “On atrial for embezzlement, evidence is competent of defendant’s pecuniary condition immediately prior to and during the time the offense is alleged to have been committed.”
It is true that Moore, a witness for the State, testified that the defendant had in bank $205.15, but this does not con- elude the defendant. He is not bound by this statement, but, on the other hand, he had the right to contest it, if he so desired.
Then, again, the court instructed the jury that if at the time the defendant left the service of the company he had enough money in the bank to discharge anything that he might have owed the company, that they should consider the fact in determining whether he had an intention to embezzle the funds. If the jury were to take this fact into consideration, it certainly was proper for them to hear evidence on this point, and it should not be confined to the .State giving evidence of this character, but the defendant should have been permitted to show what funds he had there. He may have had many times the amount of the company’s claim, which was about $150.00, and if so, he had the right to put this fact before the jury. Motive is generally an important inquiry in a criminal prosecution. It would be improbable that a man of much means would embezzle a very small sum of monej'-, and the jury should have all such facts before them in passing upon the question of fraudulent conversion and criminal, intent.
The defendant excepted to the ruling of the court in refusing to permit certain questions propounded by him to witnesses in an effort to prove good character, to be answered. Evidence of previous good character of a person charged with crime is always admissible. It is a fact which he is entitled to have submitted to the jury, the same as any other fact or circumstance favorable to him. Justice Cooley, in People v. Garbutt, 17 Mich. 9, 97 Am. Dec., 162, in calling attention to the importance of this class of testimony, said: “Good character is an important fact with every man; and never more so than when he is put on trial charged with an offense which is rendered improbable in the last degree by a uniform course of life wholly inconsistent with any such crime. There are cases when it becomes a man’s sole dependence, and yet it may prove sufficient to outweigh evidence of the most positive character.” So, also, in Hanney v. Commonwealth, 9 Atl. (Pa.), 339, in holding that evidence of good character is a substantial fact, like anjr other fact tending to establish defendant’s innocence, and that it should be so regarded by both the court and jury, observed that: “Character is of importance in this: it may of itself, in spite of all evidence to the contraiy raise a reasonable doubt in the minds of the jury, and so produce an acquittal. An honest man may, through malice or otherwise, be charged with crime, and his life or liberty be endangered by fallacious circumstances or perjury, and he may be able to produce no evidence to prove his innocence except his own oath; and if, in such case, a blameless life and unstained character are of no avail — are a mere makeweight in a doubtful case — his condition is a sad one.”
It is so fundamental that every man charged with a criminal offense has the right to prove his previous good character, that it is not necessary to say more on the subject; but the evidence should be confined to the trait of character involved in the prosecution. As in this case, the trait of character in issue is one of honesty and fair dealing, evidence that the defendant is a peaceable, quiet and law-abiding citizen, or that he is a man of sober and industrious habits, would not be admissible, because these questions do not bear upon the defendant’s character for honesty. The questions asked may be too general in form, but as to that we do not say, because they can be corrected upon the next trial.
It is claimed that the court erred in giving certain instructions for the State, and in refusing two instructions offered by the defendant. The first instruction given for the State is as follows: “The court instructs the jury that if a person is an officer, agent, clerk or servant of a corporation, and receive money for or on account of such corporation, and he fraudulently converts the whole sum to his own use, he will be guilty of embezzlement though he may be entitled to a share of such money as commission.” This instruction involves the question as to whether or not an agent who collects money under a contract to retain a certain amount thereof as commission, and to turn over the remainder to his principal, has such an interest in the fund that he cannot be convicted of embezzlement of the whole. This question is presented by the instruction, yet it does not arise in this case, because, by the contract under which the defendant was employed, he was not given the right to retain his commission, but the contract provides that he shall not be entitled to commissions except when the premiums have been paid to the company in cash, and, also, he is required each week to make a true account of all moneys received by him, and to return, at the same time, all moneys whatsoever received by him, and that he is to receive a salary amounting to a certain per cent, of his collections. Therefore, the instruction, without the concluding words, “though he may be entitled to a share of such money as commissions,” is good, and if good without these words, the fact that they are added does not, in any way, prejudice the defendant.
Instruction No. 2, complained of, is as follows: “The court instructs the jury that if they believe from the evidence beyond a reasonable doubt that the prisoner, Wm. C. Moyers, was an officer, agent, clerk or servant of the Prudential Insurance Company of America, a corporation, from the 1st day of April, 1903, to the 1st day of January, 1904, and as such officer, agent, clerk or servant of said corporation that the money or any portion of the money mentioned in said indictment came into his hands for and in behalf of the said The Prudential Insurance Company of America, and that the prisoner fraudulently converted the said money or some portion of the same to his own use, then the said prisoner would be guilty of the embezzlement thereof as charged in the indictment.” Complaint is made against this instruction as telling the jury that if the defendant embezzled any portion of the money mentioned in the indictment, that he would be guilty of embezzling the whole sum charged. I do not think it subject to this criticism, because it says if the money or any portion of the money mentioned in the indictment came into the defendant’s hands, and that he converted the same, or some portion thereof, to his own use, then he would be guilty of the embezzlement thereof, as charged in the indictment. This evidently means that he would be guilty of embezzling that portion of the money which came into his hands, and which he fraudulently converted to his own use, and would not mean that he embezzled the whole amount, as charged in the indictment.
To the other four instructions given on behalf of the State, we see no objection, and think there was no error in giving them.
Instruction A, which the court refused to give for the defendant, presents the question as to whether or not it was necessary for the company to have demanded payment of the money by the defendant, and refusal on his part, before he could be found guilty of embezzlement. It is held by some of the courts that it is neeessary to make demand upon the defendant to pay the money or return the property, only when the statute makes such demand and refusal elements of the crime. 7 Ency. PI. & Pr., 404, and cases cited; Eidelhoff v. State, 26 Pac. Rep., 627. “Whether proof of a demand is necessary to show the conversion depends wholly upon the language of the statute.” Underhill on Crim. Ev., sec. 284. 15 Cyc., 495, says: “However, the weight of the authority is to the effect that a demand for the money or other property alleged to have been embezzled need not be made by the prosecution, in the absence of statute to the contrary, except under the peculiar circumstances of the particular case.” Our statute does not require a demand and refusal to be shown, and as to whether or not a demand is necessary, depends upon the circumstances of the particular case. But, in a prosecution under the statute, if it appears that the possession of the money or property alleged to have been embezzled is unlawful^ withheld by the defendant from the person lawfully entitled thereto, and that the defendant has failed or refused to restore or account for the same within thirty days after proper demand has been made therefor, such accused officer, agent, clerk or servant shall be presumed to be guilty. But this presumption is not conclusive, and may be rebutted by any competent evidence. This statute is not designed to require a demand to be made before one can be convicted of embezzlement, but it affords a cumulative remedy; that is, if the State can show that the money or property is unlawfully withheld, and that the statutory demand has been made therefor, and that the money has not been paid or the property restored within the time named in the statute, then the defendant will be presumed to have converted it to his own use, without other proof of a fraudulent conversion. But while the statute provides for such demand, and raises a presumption of guilt against the accused when the same is shown to have been made and not complied with within the statutory period, it does not change the rule so as to dispense with a demand when, under the peculiar circumstances of the case, it should be given. In this case, under the contract, the defendant agreed to make weekly reports, and to remit all money received by him'every week, and, inasmuch as a definite time is fixed by the contract for the payment of the money, it would seem from the authorities that no demand for its payment is necessary, but the fact of conversion can be proved by other evidence. In all cases for embezzlement or fraudulent conversion, evidence of demand for a return of the money or property, and its refusal by the defendant, is competent for the purpose of tending to show conversion; but while it is always admissible, yet it is not always necessary. In the case of Reynolds v. State, 47 Atl. Rep., (N. J.), 644, the court, speaking upon this subject, and in reference to the case of Fitzgerald v. State, 50 N. J. Law. 475, says: “This assignment is undoubtedly grounded upon what this court said on the subject of a demand in Fitzgerald v. State, 50 N. J. Law, 475, (14 Atl. 476). That case has given some misapprehension as to the law on this subject, although a careful reading of it seems to leave it free from any uncertainty. That case does not hold that it is necessary in all cases where money comes lawfully into the hands of an agent or other person within the statute to make demand before criminal proceedings may be instituted. All that was held there was that the mere neglect to pay over will not justify a conviction for fraudutent conversion where funds have come lawfully into the hands of the defendant. A demand is only one class of evidence for proving fraudulent conversion. Other classes are: (1) Where, by statute, a public officer is required to pay over funds at a definite time, and fails to do so, and there is proof that he has not done so, and has applied the same to his own use, that is evidence from which a jury may find a fraudulent conversion, even without a demand; or (2) where, by the rules and regulations or agreement under which the defendant is employed, and to which he is required to conform, a time is definitely fixed for him to account for moneys received, and it appears that he has lawfully received moneys of his employer, but has not paid over same in accordance with such rules, regulations or agreement, but has converted the same to his own use, this is also evidence from which the jury may find that there was a fraudulent conversion of such funds without formal demand; or (3) where it appears by the evidence that the embezzler has fled after the alleged embezzlement, and that his act and conduct were of such a character, in connection with his flight, as to indicate that his intent was to fraudulently take or convert the funds which he retained, there the jury may also find from such facts a fraudulent conversion, even without a demand. In all cases not coming within any of the classes above mentioned, but which are of an uncertain, or general, or special agency, where the time for the return of the funds collected is indefinite, or not fixed, or which is at the pleasure of the agent or servant, there a demand or other evidence of a fraudulent intent to convert may be neceassary to put the defendant in a position of having fraudulently converted the money to his own use. It should be said, however, that a demand and refusal does not of itself, in any case establish fraudulent conversion, or conversion by a defendant to his own use, but that it is only evidence to go to the jury upon the question of the defendant’s fraudulent conversion!” Therefore, we think it was not error to refuse to give the instruction in this case.
The defendant’s instruction, B, presenting the theory of joint ownership, was properly refused, for the reason, as stated in the discussion of instruction No. 1 for the State, under the contract of the defendant -with the company, he was not entitled to any part of the money collected by. him until he had paid it over to the company, and, therefore, he could not have been a joint owner, with the company, of the fund.
It is assigned as error that the court permitted the State to introduce evidence of a number of distinct transactions, in order to make up the aggregate sum alleged to have been embezzled. It is true the evidence shows that the money which the defendant is charged with having embezzled was collected by him at different times and from different persons, but the collection of these several sums by the defendant was lawful, and in the due course of his employment, and if there was shown to be a conversion, it was not a distinct and independent conversion of each sum, but the conversion of each sum as one transaction. “On atrial of a charge of embezzlement, the fact that the money alleged to have been embezzled by the defendant was received in several sums at different times and from different persons, affords no ground for requiring the prosecutor to elect on which sum he will rety for conviction.” Gravatt v. The State, 25 Ohio St. 162.
• We do not think the court erred in this respect. For the reasons given herein, the judgment of the criminal court is reversed, the verdict of the jury set aside, and a new trial awarded the defendant.
Reversed. | [
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POFFENBARGER, JUDGE:
Frederick J. Emsweller sentenced, by a justice of the peace to imprisonment in the county jail of Monongalia County for a period of sixty days, and further punished by the infliction of a fine of $100.00 and costs including an attorney’s fee of $10.00, all to be worked out on the public roads, as for a violation of chapter 13 of the acts of the Legislature of 1913, known as the Yost' Law, sought a discharge, in the circuit court of said county, on a writ of habeas corpus. To the judgment refusing- to discharge him and remanding him, he obtained this writ of error. He was also denied an appeal from the justice’s- judgment to the circuit court, and obtained a writ of error here to the judgment of that court refusing an appeal. Joseph J. Jenkins, punished.at the same time and in like manner and upon the same kind of a charge, also obtained a writ of error to a judgment refusing him an appeal.
The complaint, made by the chief of police of the city of Morgantown and ex-officio a constable of the county, charged that he had cause to believe intoxicating liquors were “being manufactured, sold, offered, exposed, kept or stored for sale, or bartered in said county aforesaid in that certain suit case, trunk or other container in the possession of one F. J. Ems-weller in the roads, streets, alleys or room in said county contrary to the laws of the State of West Virginia,” and prayed a warrant for seizure of “all liquors found therein, together with all vessels, bar fixtures, screens, glasses, bottles, jugs and other appurtenances apparently used in the sale, keeping or storing of liquors contrary to law,” and the arrest of “all parties or persons found in said room or place.” The warrant recited the substance of the complaint and then commanded entry of “that certain room or place in said county aforesaid,” and search and seizure of “all liquors found therein, together with all vessels” etc., and the arrest of “all parties or persons found in said premises.” The return of the officer shows the arrest of Emsweller and seizure of six pints of beer in “said room.” 'The entry on the justice’s docket recites arraignment of the accnsed and his plea of guilty.
The statute under which the complaint is said to have been made is sec. 7 of ch. 13 of the Acts of 1913, as amended by ch. 7 of. the Acts of 1915 providing as follows: “It shall be unlawful for any person to keep or have for personal use or otherwise, or to use, or permit another to have, keep or use, intoxicating liquors at any restaurant, store, office building, club, place where soft drinks are sold (except a drug store may have and sell alcohol and wine as provided by sections four and twenty-four), fruit stand, news stand, room, or place where bowling alleys, billiard or pool tables are maintained, livery stable, boat house, public building, park, road, street or alley. It shall also be unlawful for any person to give or furnish to another intoxicating liquors, except as otherwise hereinafter provided in this section. Any one violating this section shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one hundred dollars, nor more than five hundred dolars, and be imprisoned in the county jail not less than two nor more than six months; provided, hotvever, that nothing contained in this section shall prevent one, in his home, from having and there giving to another intoxicating liquors when such having or giving is in no way a shift, scheme or device to evade the provisions of this act; but the Avord “home” as used herein, shall not be construed to be one’s club, place of common resort, or room of a transient guest in a hotel or boarding house.”
Sec. 31 of ch. 13 of the Acts of 1913, added by ch.. 7, Acts of 1915, makes it unlawful for any person to bring or carry into the State, or from one place to another within the State, even Avhen intended for personal use, liquors exceeding in the aggregate one-half of one gallon in quantity, unless there is plainly printed or written on the side or top of the suit case, trunk or other container in large display letters, in the English language, the contents of the container or containers, and the quantity and kind of liquors contained therein.- Violation of this section is made a misdemeanor punishable by fine and imprisonment. It also says the liquors not labeled may be seized and shall be conclusive evidence of unlawful keeping, storing and. selling, against the person having them in his possession..
Sec. 9 of the Act. authorizes a warrant for the search of any house, building or other place in which it is charged the manufacture, sale, offering, keeping or storing for sale or barter of liquors contrary to law, is carried on, seizure of fixtures and arrest of persons found therein. The complaint and warrant here involved treat a suit case,.trunk or other container as a place of manufacture, sale, offering, keeping or storing for sale or barter within the meaning of that section. They proceed upon the theory that the mere possession of intoxicating liquors in a suit case, trunk or other container in any road, street, alley or room is an offense. Sec. 9 contemplates a^ house, building, boat or place in which persons may be and perform the forbidden acts of manufacture, sale, etc. A suit case, trunk or other small container of liquors or packages of liquors is not such a-place. Although the warrant commands a search of “that certain room or place,” it is to be observed that no particular room or place is designated in either paper. Hence, it, too, must intend “that certain suit case, trunk or other container in the possession of one P. J. Emsweller in the roads, streets, alleys or- z’oom. ’ ’
Read in the light of'the three sections of the statute here .referred to, the complaint and warrant obviously attempt to charge one offense or numerous offenses under all three. It takes “road,” “streets,” “alleys” and “rooms” from sec. 7, “suit case,” “trunk” and “other container” from sec. 31 and the search and seizure clause from sec. 9. The act prohibited by sec. 31 and pertaining to suit cases, trunks and other containers is a distinct substantive offense, and is not alone proof nor evidence, of unlawful keeping, offering, storing or selling. Nor is possession of intoxicating liquors in a suit ease, trunk or other container always an offense or evidence of guilt. It depends upon the quantity, the presence or absence of a label, the place and other circumstances. The legislature evidently did not conceive the possibility of the manufacture, sale, etc. of liquors in a suit case, trunk or other container, or occupancy of such a thing, as a bar-room with all of its fixtures and paraphernalia, for it made no provision for warrants for search thereof. To charge an offense under sec. 7, it is unnecessary to mention any suit case, trunk or other container. It suffices to charge the having, keeping, using of, or permission to use intoxicating liquors in any of the forbidden places.
Prom the terms of the complaint and warrant, it is manifest that the officers proceeded under the misapprehension of law that characterized the procedure, and led to erroneous results in State v. Sixo, 77 W. Va. 243 87 S. E. 267. In that case, so much of sec. 31 of ch. 7 of the Acts of 1915, as made the mere possession of intoxicating liquor "conclusive evidence of unlawful keeping, storing and selling, ’ ’ was declared to be unconsitutional. It was also held here that the mere possession of such liquors properly labeled is not prima facie evidence of guilt of an offense under the statute. This necessarily means that the legislative act not forbidding the carrying for personal use, of two quarts of liquor or less, without a label, permits it by Implication, and also the carrying of a larger quantity for such use, if properly labeled. Sec. 7 of the Act likewise impliedly permits a citizen to keep liquors in his home for his personal use. When this proceeding took place, the impression that a citizen could not carry along a highway or elsewhere, liquors in any quantity, for his personal use, in his pocket, or in a package, or hand-bag or otherwise,, prevailed extensively in Monongalia County. Just what the very broad language of sec. 7 of the Act as amended means, it is not necessary to inquire, but it certainly does not deny to a citizen the right to carry along a highway to his home, what he is allowed to keep there. Its terms import no such intention. A plain purpose is to exclude the deposit or maintenance and use of liquors from public places and places to which the public resort.' Whether it goes beyond this, there is no occasion now to inquire; but it obviously does not forbid transportation in a lawful manner, of liquors for personal use in the home, over the public highways, or in places not included in the enumeration made by the statute, and there are many of them.
To charge an offense under sec. 31, it would be necessary only to aver the carrying óf more than one-half of one gallon of intoxicating liquors into the State, or from one place to another within the State, in a suit case, trunk or other container., without the prescribed label. To institute a proceeding under sec. 9, the affidavit should charge the manufacture, sale, offering, keeping or storing for sale or barter or all of such acts, in a certain house, building or other place therein described. The complaint must name the place and the warrant must command search of that place, not such places as the officer executing it may deem liable to search.
The effort to formulate a general charge under all three sections has resulted in failure to make one under any of them. It is not averred that Emsweller or any other certain person had manufactured, sold, offered, exposed, kept or stored-for sale or barter, any liquors. The charge is that some of these numerous unlawful things had been done in a suit case, trunk or other container in his possession, but not that he did them there or elsewhere, and he might lawfully have had such liquors in such a container in a road, street, alley or room. Moreover, the complaint did not pray for the arrest of Ems-weller or any other certain person, nor does the warrant command such an arrest. The complaint sought a warrant to search a suit case, trunk or other container and the arrest of parties and persons found therein. It was identified as one in the possession of Emsweller, but no road, street, alley or room was named. As to them it was general, going to all the roads, streets, alleys and rooms in Monongalia County. Departing from it, the Avarrant commanded search of some room not identified nor in any way indicated, and the arrest of persons found therein. Emsweller’s arrest was incident to an indefinite- search. The return of the officer shows it was. To - charge him under sec. 9, a complaint specifying the house, building or place was necessary. Neither the complaint nor the warrant pointed out any.
No court has poAver or jurisdiction to convict upon facts that do not constitute an offense. As to power to determine, upon a writ of habeas corpus or otherwise, the existence or non-existence of an offense in the acts charged, there is no doubt a distinction between superior and inferior courts, on account of the presumption in favor of jurisdiction in the former and against it in the latter. But, if the record of a court of either class discloses the facts and the acts upon which the prosecution or judgment rests do not constitute an offense, there is no power to prosecute, in the one instance, and the judgment is necessarily void in the other. Want of jurisdiction in such cases is firmly asserted in State ex rel. Morley v. Godfrey, Mayor, ,54 W. Va. 54 and Judy v. Lashley, 50 W. Va. 628. That sustains habeas corpus as well as prohibition. Church, Habeas Corpus, sec. 351. “In imprisonment for criminal offenses the court can act upon it in only one of three manners: 1. If it appears clearly that the fact for which the -party is committed is no crime; or that it is a crime, but he is committed for it by a person who has no jurisdiction, the court discharges. 2. If doubtful whether a crime or not, or whether the party be committed by a competent jurisdiction; or if it appears to be a crime, but a bailable one, the court bails him. 3. If an offense is not bailable, and committed by a competent jurisdiction, the court remands or commits him.” Wilmot’s Opinion, p. 106; Iiurd, Habeas Corpus, 2 Ed., 325.
The common law jurisdiction by habeas corpus in cases of commitment by justices of the peace by way of execution, commitments under conviction, not merely to await indictment, was very broad. “The power of a justice of the peace is in restraint of the common law, and in abundance of instances is a tacit repeal of the famous clause in the great charter, that a man should be tried by his equals, which also was the common law of the land long before the great charter, even from time immemorial, beyond the date of histories and records. Therefore, generally, nothing shall be presumed in favor of the office of a justice of the peace, but the intendment will be against it. * * * * Therefore, where a trial by jury is dispensed withal, yet he must proceed, nevertheless, according to the course of the common law, in trials by juries, and consider himself only as constituted in the place both of judge and jury. Therefore there must be an information or charge against the person, then he must be summoned or have notice of such charge, and have an opportunity to make his defence, and the evidence against him must be such as the common law approves of, unless the statute specially directeth otherwise; then if the person is found guilty, there must be a conviction, judgment and execution, all according to the course of the common law, directed and influenced by the special authority given by the statute; and in the conclusion there must be a record of the whole proceedings, wherein the-justice must set forth the particular manner and circumstances, so .as if he shall be called to account for the same by a superior court, it may appear that he hath conformed to the law and not exceeded the bounds prescribed to his jurisdiction.” 1 Burns’ Jus. 409, quoted in Hurd, Hab. Cor., 400. ‘ ‘ In describing the offence, a mere compliance with the terms of the statute will not suffice, for if a magistrate merely states the facts of the offence in the language of the act, when the evidence does not warrant the conclusions, he subjects himself to a criminal information. The particular circumstances which conduce the opinion of the magistrate must be set forth, and not the mere result or conclusion from them. * * .* * That the design of the conviction is not merely to record the fact of the judgment, but to show that the proceedings required by justice had been regularly observed and the sentence legally supported by evidence, is everywhere evinced by the language and sentiments of the ablest judges from the time of Lord Holt, who himself, on all occasions, regarded the obligation of recording the whole proceeding as a necessary counterpoise against the liability to error or misapplication to which a private and discretionary tribunal is naturally exposed.” Paley and Hulton on Convictions and Nun and Walsh on Justices, quoted in Hurd. Hab. Cor., 401, 403.
All of this proceeded upon the legal presumption against the jurisdiction of an inferior court. It had to be affirmatively shown at every step; but, when shown, there was a presumption in favor of proper exercise thereof. As evidence of guilt was essential to a conviction, even though the process was perfect and the offense alleged was within the jurisdiction of the court and sufficiently charged, the court, on a writ of habeas corpus, looked to the record for findings of the facts constituting the offense, the specific acts proved, in the •opinion of the magistrate; and, if the record did not disclose them, or enough of them to constitute the offense, it seems the prisoner was deemed not to have been legally convicted. Whether it was the practice to discharge him, when the court found this state of the record, but also found evidence of guilt, _ or to remand him for proper procedure, it is not nec-•esary to inquire.
Our statute, Code, eh. 50, secs. 176 to 179, inclusive, seems impliedly to have eliminated some of the formality required by the ancient law. Its prescription of the docket to be kept by justices and the contents thereof, omits the requirement of any recital of facts found. As to the judgment, it requires no more than that it shall be “stated,” with the items of costs included therein. Sec. 182 of the chapter makes the docket or a transcript thereof evidence of the judgment or other proceeding, but declares it “shall not be conclusive if errors or omissions be shown.” The obvious result of this legislation is that the judgment of a justice entered in his docket proves the jurisdictional facts, in the absence of proof of lack thereof. In other words, it is prima facie evidence, and the judgment is not void for want Of a full recital thereof. But, whether recited or not, the judgment is open to contradiction and impeachment on questions of fact going to the jurisdiction. In this respect, it differs from the judgment of a superior court, which is conclusive, unless the lack of jurisdiction appears on its face, or by matter of record, not contradictory of. the judgment itself. One jurisdictional question is, whether there was any evidence of the perpetration of acts constituting an offense. If there was, the justice had jurisdiction to determine its sufficiency and to resolve doubts In cases of conflict; and the ease, as well as the prisoner, was within his power and jurisdiction. When a prisoner- is within the jurisdiction of a court in all respects, he is.not illegally deprived- of his liberty. For mere errors in procedure or judgment, he is not entitled to a discharge, and, for correction thereof, he is limited to an appeal, writ of error or cer-tiorari ; perhaps in this State, to an appeal only, in the case of an erroneous judgment of a justice.
For an offense of which a -justice has jurisdiction, committed in his presence or the presence of a constable, an arrest may be made without a warrant. Code, ch. 50, sec. 221, ser. sec. 2775. In other cases, there must be a warrant and it can be issued only on information under oath of a credible person; and it must describe the offense alleged to have been committed, “as heretofore required in such eases by law.” Code, ch. 50, see. 223, ser. see. 2777. State v. Harr et al., decided at this term. A search warrant must also be founded upon a -showing of probable cause, supported by an oath of affirmation, and it must particularly describe the place to be searched. Constitution, Article III, sec. 6; Acts, 1913, ch. 13, sec. 9; Code, ch. 155, secs. 1 and 2, ser. sees. 5513, 5514.
Examined in the light of these requirements, the complaint and warrant were utterly insufficient, as has been indicated. There is no direct allegation of any offense by Emsweller. “So it must appear >:;! * * # that the offence was directly charged, and not by implication, and contained in express terms every ingredient necessary to constitute the crime described by the statute. ’ ’ Hurd, Hab. Cor. 2 Ed., pp. 401 and 102; R. v. Thompson, 2 T. R. 18; R. v. Pearce, 9 East. 358; R. v. Davis, 6 T. R. 171; Ardry v. Hoole, Cowp. 825: He was not liable to arrest as an inmate of any place searchable under the warrant, as the officer’s return shows he was arrested, because the warrant, as a search warrant, was void by both the statute and the constitution, for lack of description of any place to be searched. There is no charge .that he had carried intoxicating liquors in such manner as to constitute an offense under sec. 31 of ch. 13, Acts, 1913 added by ch. 7, Acts, 1915; nor that he had, kept or used such liquors in any of the forbidden places. If the warrant had Sufficiently charged any offense, his plea of guilty would conclude him, but such a plea to a void charge, did not authorize a judgment of conviction. The fact is that the liquor was found in Emsweller’s pockets. He had four pints of beer and Jenkins, arrested with him, had three, which they say they were carrying to their homes for personal use. There was no proof of any of the circumstances before the justice, but the affidavits filed in support' of the writ state them as here given and they are not contradicted by the officer who made the arrest and seized the liquor, or any other person.
As the warrant is void for lack of allegation of facts constituting an offense, and the conviction is not shown to have been for an offense alleged to have been committed in the presence of the justice or constable, the judgment is illegal and void. If, under such circumstances, the prisoner could be remanded for proper prosecution, on evidence of guilt, it would not be proper to remand in this case, because there is no such evidence. The prisoner could lawfully carry four pints of intoxicating liquor, to his home for his personal use, without a label.
Reversal of the judgment refusing to discharge the prisoner and remanding him, and his discharge here, in the exercise of appellate authority to do what the trial court should have done, terminates the controversy involved in Emsweller’s writ of error to the judgment refusing an appeal, and reduces that proceeding to a moot ease, wherefore that writ of error will be dismissed.
But it is necessary to determine whether the court erred in refusing to grant Jenkins an appeal.
The judgment was rendered against him, June 23, 1915. He filed his petition in the circuit court, praying for an appeal, July 20, 1915. In it, he protested his innocence of any offense, charged error in the procedure, illegality of his conviction and refusal of an appeal by the justice. Proceeding upon the theory of right to take an appeal at the hands of the justice, within ten days after the judgment, and, on a showing of good cause for failure so to obtain it, to have it granted by the circuit court or the judge thereof in vacation, within ninety days, he alleged an application therefor to the justice within ten days and his refusal to grant it. Resistance by the prosecuting attorney, to the application to the court, was permitted, and he denied the existence qf the cause shown for failure to obtain the appeal from the justice. In support. of this denial, he filed the affidavits of the justice and another person, saying no such demand had been made. The Attorney General argues that an appeal from the judgment of a justice can be demanded only at the rendition of the judgment.
The statute allows an appeal in any criminal case, under certain regulations, and does not, in terms, limit the right as to time, as it does in civil eases. Code, ch. 50, sec. 230, ser. see. 2785. Whether the time limitation provided in civil cases, Code, ch. 50, secs. 167 and 174,- ser. secs. 2721 and 2728, is to be applied on the principle of analogy, it is not necessary to decide; but there is no manifestation of legislative intent to require the demand for an appeal to be made at the very hour or day of the rendition of the judgment. As time for applications for appellate relief is allowed in all. other cases, denial of it in those instances in which the liberty of a citizen is involved, would be manifestly inconsistent with established public policy as well as reason. On the face of the statute, the right of appeal in such eases is unlimited and it is a constitutional right which the legislature may regulate, but not wholly deny, nor unduly burden. Vetock v. Hufford, 74 W. Va. 785. A statute of Virginia somewhat similar to ours has been construed as requiring an immediate demand for an appeal, Combs v. Com., 95 Va. 88, but the reasoning of the court in that case does not convince us of the correctness of the conclusion.
We are of the opinion that an appeal in such a case, demanded within ten days, a clearly reasonable period, should be granted.
On the issue as to whether a demand was made within that time, we think the doubt should have been resolved in favor of the petitioner. The justice and W. E. Cobun, who deny that the application was made, both admit the presence of the fathers of the two boys at the justice’s office on July 1, 1915, and a demand by them for a transcript of the docket. They also admit that the justice did not make the transcript, and that he promised to make it on a- later day, if he should have time to do so. The justice admits these men returned on July 3, 1915, Saturday, and he asked them to wait until Monday, and that the interview ended in a threat of coercion by them and an absolute refusal on his part to make it, until compelled to do so. Later, July 5, or 6th, they returned with an attorney and demanded a jury trial. To the oaths of Samuel Emsweller and the petitioner that the application was made, these circumstances showing efforts to obtain some sort of relief are added by the admission of the justice and witness Co-bun. A doubt about an application for an appeal in a case involving liberty should be resolved in favor of the applicant. As has been noted, the right is a high one guaranteed by the constitution of the State, and is given as a matter of right. To obtain it, no bond or recognizance is necessary, unless the prisoner is to be liberated, during the pendency of the appeal. Vetock v. Hufford, cited. His desire to avail himself of it is shown by his petition, supported by his oath. It is resisted by the justice on the ground of lack of an application therefor to him. The prisoner and another witness swear the application was made. A doubt so created ought not to be allowed to defeat this high and sacred right.
A plea of guilty to a warrant sufficiently charging an offense, might preclude right to an appeal. City of Edina v. Beck, 47 Mo. 234; Philot v. State, 65 N. H. 250. But a plea of guilty to a void warrant stating no facts constituting an 'offense, has no such effect. 12 Cyc. 801.
For the reasons stated the judgment of the circuit court refusing the appeal asked for July 20, 1915, will be reversed, the appeal prayed for in the petition allowed and the case remanded with direction to admit the prisoner to bail, on a good and sufficient recognizance, conditioned for his appearance for trial of the case on the appeal, if he shall demand it.
Writ dismissed, reversed and remanded. | [
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McHUGH, Justice.
This action is before this Court upon the appeal of Robert Kopa, appellant and defendant below, from his conviction in the Circuit Court of Hancock County for first degree murder. The appellant was convicted of committing such murder while in the commission of a burglary upon the home of the victim, Edna Virginia Karver, and was sentenced to life imprisonment with mercy. This Court has before it the petition for appeal, all matters of record and the briefs and oral argument of counsel.
The record indicates that in the early morning hours of September 15, 1981, at approximately 4:30 a.m., Edna Virginia Karver was found slain in her home in Weirton, Hancock County, West Virginia. The victim was found by members of the local rescue squad and Weirton police while lying face down in her bed with her hands tied behind her back and a gag in her mouth. An autopsy of the victim revealed that she had died from a series of six stab wounds in her back which had punctured her lungs and liver. The victim had also been severely beaten about the head and face. The time of death was placed anywhere from midnight to 4 a.m. on September 15, 1981. The victim was last seen alive at approximately 11:35 p.m. by a boarder of the victim as he was leaving for work.
The home in which the victim lived was found in a condition of disarray. Entry onto the premises was discovered to have come from a window that had been removed from the garage of the victim. Outside the window, footprints were discovered that allegedly belonged to one of the perpetrators and a footprint was also found in the blood lying next to the victim’s bed. Photographs were taken of the footprints and later submitted for comparison with the tennis shoes of the appellant. Other pieces of physical evidence such as hair were collected at the scene and subjected to scientific analysis.
During the trial of the appellant, neighbors of the victim testified that they had seen a black and gold four-wheel-drive Plymouth Trailduster around the rear of the Karver residence at approximately 11:30 p.m. on the evening of September 14, 1981. One such neighbor, Michael Harris, was returning home at the time and testified that he noticed two people in the front seat of the Trailduster as it was leaving the alley which was located behind the victim’s house and what he thought was movement in the back seat. At a later time, Harris identified the Trailduster that the appellant had borrowed from a friend earlier in the day as the one he saw that evening near the Karver residence.
On October 4, 1981, a man that lived across the street from the victim, William “Buddy” White, was arrested by the Weir-ton police for possession of a controlled substance. During his subsequent interrogation, White offered information on the murder of Mrs. Karver in exchange for immunity from prosecutions on the drug charge and the murder of the victim. Based upon the information supplied by White, the Weirton Police Department eventually arrested the appellant and two companions, William Joseph Gallo and Franklin V. Tesack, and charged them with the slaying of Edna Karver. A Hancock County Grand Jury indicted the appellant, along with Gallo and Tesack, for first degree murder and felony murder. The trials of the three co-indictees were severed and the appellant was tried and convicted for felony murder.
White was granted immunity from prosecution and became the prosecution’s chief witness. At trial, he testified that it was common knowledge in the neighborhood that Mrs. Karver kept $30,000 to $40,000 cash in her home and stored it in various appliances such as televisions, toasters and radios. White stated that he had told this to other persons who, in turn, informed the appellant, Gallo and Tesack. Arrangements were made with White to inspect the house of the victim for the possible commission of a burglary. In the early evening of September 14, 1981, the neighbor took the appellant, Gallo and Tesack to the Karver residence, at which time the three men extensively questioned White about Mrs. Karver’s habits and those of her other neighbors. The inspection of the victim’s house took place from a black and gold four-wheel-drive Plymouth Trailduster that the appellant and Gallo had borrowed from a friend earlier in the evening. Upon returning to the bar where they had met, White left the three men only to meet them again later in the evening. At this time, Gallo indicated to White the burglary would take place that evening.
The State offered additional evidence of a footprint found outside the point of entry of the victim’s house that an expert testified could have been made by the right tennis shoe of the appellant, however, he could not do so conclusively. In addition, a speck of blood was found on the right tennis shoe of the appellant as well as on the cuff of a glove found in the Trailduster. Through scientific analysis, the blood found on these items was determined to be human but the amount was insufficient to define its type. A small knife was also found in the vehicle which experts could not rule out as the murder weapon, however, the knife was not admitted into evidence.
The appellant asserted the defense of alibi with various witnesses who testified that he and his co-indictees were in a local bar for most of the evening of September 14, 1981, and until 3:30 a.m. on September 15, 1981. The appellant and his alibi witnesses testified that at approximately 7:30 p.m. on September 14, the appellant and Gallo picked up Tesack in the Trailduster and then proceeded to a local bar. The appellant remained outside the bar and slept in the back of the vehicle. The appellant testified that he was awakened only when Gallo drove the vehicle to take a friend home. Upon their return to the bar at midnight, after only a 20 minute absence, the appellant and Gallo stayed at the tavern until their departure at 3:30 a.m. At this time the appellant and Gallo drove to the trailer of Pam Glasure, the appellant’s girlfriend, and then went to sleep.
Testimony indicates that at approximately 4:00 a.m. on September 15, 1981, a local rescue squad received an anonymous telephone call instructing them to send an ambulance to the residence of the victim. The rescue squad member who received the call testified that the caller was female and the conversation consisted of the words: “Send an ambulance to 136 Pine Street and hurry.” In an original statement given to police by Pam Glasure, the appellant’s girlfriend, Glasure claimed responsibility for making the telephone call at the direction of the appellant. However, Glasure, during the appellant’s preliminary hearing and before the Hancock County Grand Jury, denied ever making the anonymous telephone call. In any event, the prosecution called Glasure as one of its witnesses and upon her denial of the truth of the original statement, the prosecution impeached her with the prior inconsistent statement.
The appellant was convicted by a jury of first degree murder with a recommendation of mercy and was sentenced to life imprisonment with mercy. In subsequent trials, William Joseph Gallo and Franklin V. Tes-ack were acquitted of the murder of Edna Karver.
The principal assignments of error are as follows: (1) the trial court erred when it instructed the jury that the appellant had the burden of proving his alibi defense to the extent that it created a reasonable doubt in the mind of the jury as to his guilt; (2) the trial court erred when it instructed the jury that it could return a verdict of first degree murder with a recommendation of mercy; (3) the trial court erred when it allowed the prosecution to impeach its own witness with a prior inconsistent statement that was unsworn and which the prosecution knew would be refuted at trial; (4) the trial court erred when it refused to admit into evidence the taped results of an out-of-court voice experiment conducted by defense counsel; (5) the trial court erred when it allowed a knife to be displayed in the courtroom upon the assurance of the prosecution that it would be connected to the crime, only to have it later excluded from evidence; and (6) the trial court erred when it denied the appellant’s pre-trial motion to exclude from evidence certain items, some of which were bloodstained, and testimony surrounding the identification of that blood.
I
A. THE ALEXANDER INSTRUCTION
The primary issue for resolution by this Court is whether the appellant is entitled to a new trial based upon the giving of an alibi instruction to the jury that the appellant contends unconstitutionally shifted the burden of proof from the prosecution to the appellant. The questioned instruction reads as follows:
The Court instructs the jury that where the State of West Virginia has established a prima facie case and the defendant relies upon the defense of alibi, the burden is upon the defendant to prove it, not beyond a reasonable doubt, nor by a preponderance of the evidence, but by such evidence, and to such a decree of certainty, as will, when the whole evidence is considered, create and leave in the mind of the jury a reasonable doubt as to the guilt of the defendant.
In substantially identical form, the above instruction was approved by this Court in State v. Alexander, 161 W.Va. 776, 245 S.E.2d 633 (1978). In Alexander we stated that although in West Virginia “[ajlibi is an affirmative defense ... [it] ... does not relieve the prosecution of proving beyond a reasonable doubt the actual presence of the accused at the time and place of the commission of the crime when personal presence is essential thereto.” 161 W.Va. at 781, 245 S.E.2d at 637. We therefore held that it was not improper for a trial court to instruct a jury “that defendant had a burden to prove his [alibi] defense sufficiently to create a reasonable doubt.” Id., citing State v. Pendry, 159 W.Va. 738, 227 S.E.2d 210 (1976), overruled on other grounds, Jones v. Warden, West Virginia Penitentiary, 161 W.Va. 168, 241 S.E.2d 914, 916 (1978).
Approximately two weeks after the appellant in this case was convicted, the United States Court of Appeals for the Fourth Circuit in the case of Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.), cert. denied, 459 U.S. 853, 103 S.Ct. 119, 74 L.Ed.2d 104 (1982), determined that the Alexander instruction was invalid. In so holding, the court in Adkins criticized this Court’s characterization of alibi as an affirmative defense stating that it improperly shifts the burden of persuasion from the prosecution to the defendant with respect to alibi contrary to the definition of an affirmative defense as set forth in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). It appears that the court in Adkins, therefore, invalidated the Alexander instruction because it is contrary to the doctrines of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), inasmuch as the court concluded that it unconstitutionally shifts the burden of proving every element of a crime beyond a reasonable doubt from the prosecution to the defendant. However, the court in Adkins also made reference in a footnote that the challenged instruction should be struck down, in any event, “[b]ecause the alibi instruction could mislead reasonable jurors in the proper allocation of the burden of persuasion_” 674 F.2d at 282 n. 7, citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). See also Simmons v. Dalsheim, 543 F.Supp. 729 (S.D.N.Y.1982), aff'd, 702 F.2d 423 (2d Cir.1983); Stump v. Bennett, 398 F.2d 111 (8th Cir.), cert. denied, 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466 (1968).
The instructions in the case before us, when read as a whole, clearly informed the jury that the prosecution had the burden of proving every element of the crime with which the appellant was charged beyond a reasonable doubt and that the appellant was presumed to be innocent. See infra note 9. In addition, as we noted in Alexander, supra, historically such a burden has always been upon the prosecution regardless of whether the defendant raises alibi as a defense. See supra note 2. The prosecution in the case before us was not relieved of its legal burden to prove every element of the crime beyond a reasonable doubt as required by In re Winship, supra, nor was any portion of that legal burden shifted to the defendant in violation of Mullaney v. Wilbur, supra, nor could it create confusion under Sandstrom, supra.
In deference to the United States Court of Appeals for the Fourth Circuit, we will follow the result reached in Adkins. For reasons we have stated in this opinion, we believe that it reached an incorrect result when it held the alibi instruction contained in Alexander to be constitutionally defective under either the Mullaney approach or the Sandstrom approach. In any event, if we choose to disregard the opinion of the court in Adkins, we would create the problem of sustaining convictions in the state court with predictable release through ha-beas corpus in the federal court.
Accordingly, we hold that because of the holding in Adkins v. Bordenkircher, supra, State v. Alexander, supra, is overruled to the extent that it permits the giving of an instruction that places the burden upon the defendant to prove his alibi defense so that it creates a reasonable doubt in the mind of the jury as to his guilt.
B. RETROACTIVITY
Our invalidation of the Alexander instruction presents us with another practical problem. Many habeas corpus petitions may be filed in the state court system by prisoners in whose trials such an instruction was given. In the case now before us the appellant objected to the invalid alibi instruction at trial on the basis that it unconstitutionally shifted a portion of the prosecution’s burden to the appellant. Therefore, he preserved his error on appeal. Inasmuch as the court in Adkins failed to address the retroactivity of its decision with respect to the Alexander instruction, we must determine whether our holding in the present case will be given full retroactive application.
The most recent pronouncement by this Court concerning the retroactivity of decisions invalidating instructions given in a criminal trial is found in Bowman v. Leverette, 169 W.Va. 589, 289 S.E.2d 435 (1982). In Bowman, we held, inter alia, that the invalidation of instructions under the concepts contained in Sandstrom v. Montana, supra, and State v. O’Connell, 163 W.Va. 366, 256 S.E.2d 429 (1979), was not to be given full retroactive application. In so holding, the threshold step of the analysis in Bowman was to distinguish the type of instruction invalidated under Sandstrom with those instructions invalidated under the landmark cases of Mullaney v. Wilbur, supra, and State v. Pendry, supra. The holdings of Mullaney and Pendry were given full retroactive effect in the cases of Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), and Jones v. Warden, West Virginia Penitentiary, supra, respectively.
We made several distinctions between the Sandstrom type of instruction and those invalidated under the holdings of Mullaney and Pendry. First, we pointed out that the Sandstrom v. Montana type instruction did not have the “detailed recitation of facts that is found in the instructions in the Mullaney line of cases.” 169 W.Va. at 600, 289 S.E.2d at 441. Second, it was determined that “in the Mullaney line of cases the burden of proof was explicitly shifted to the defendant, i.e., the jury was instructed that there was an obligation on the part of the defendant to disprove some aspect of the case or else a presumption would provide that element of the State’s case.” Id. This was found not to be the case in the Sandstrom line of cases where “the jury was forcefully instructed that the defendant had no burden whatsoever and that the State had it all.” 169 W.Va. at 600, 289 S.E.2d at 442. We found it relevant that “[t]he instruction in Sandstrom v. Montana, unlike the one in Mullaney v. Wilbur, did not explicitly shift the burden of proof to the defendant; nor was the Sandstrom instruction held to be a conclusive presumption_” Id. (citations omitted). As we noted in Bowman, the United States Supreme Court based its decision in Sandstrom upon the fear that the jury could misinterpret the instruction as opposed to the actual wording of the charge to the jury.
If we must hold that the Alexander instruction is unconstitutional as a result of Adkins v. Bordenkircher, then in the case now before us we further conclude that the alibi instruction that was given to the jury is dissimilar to the instructions in the Mul-laney line of cases in much the same manner as the Sandstrom type of instruction. First, it is clear that under the distinctions drawn by this Court in Bowman between the Sandstrom type instructions and those invalidated by Mullaney, the instruction in this case does not have a “detailed recitation of the facts” as was found in Mullaney. Second, there is no explicit shifting of the burden of proving each element of the crime from the prosecution to the appellant nor does it reallocate any burdens contrary to those imposed by law. In State v. Alexander, supra, this Court only approved the challenged alibi instruction as long as it “does not relieve the prosecution of proving beyond a reasonable doubt the actual presence of the accused at the time and place of the commission of the crime when personal presence is essential thereto.” 161 W.Va. at 781, 245 S.E.2d at 637. Moreover, as we found relevant in Bowman, the jury was otherwise “forcefully instructed that the defendant had no burden whatsoever and that the State had it all.” 169 W.Va. at 589, 289 S.E.2d at 442. For a discussion by the United States Supreme Court of current retroactivity tenets see United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).
Because the instruction in the case before us is distinguishable from the Mullaney v. Wilbur type instruction, the retroactivity principles as set forth in Bowman must be applied to determine whether our decision with respect to the invalidation of the Alexander instruction should be given full retroactive effect.
In Bowman, after an extensive historical survey of United States Supreme Court precedent, we utilized the retroactivity doctrine as set forth in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and its progeny. Review of the cases that followed Linkletter revealed that “[generally, in all those cases the test has been essentially the same_” Bowman, 169 W.Va. at 604, 289 S.E.2d at 444. With subsequent variations in application, the United States Supreme Court in Link-letter
announced a three-pronged test by which it would decide whether a criminal decision based on the constitution would be given retroactive application: ‘[W]e must look to the purpose of the [new] rule; the reliance placed upon the [old] doctrine; and the effect on the administration of justice of a retrospective application of [the new rule].’ 381 U.S. at 636, 85 S.Ct. at 1741.
Bowman, 169 W.Va. at 604, 289 S.E.2d at 444, quoting Linkletter v. Walker, supra.
The first prong of the Linkletter test, known as the “major purpose rule,” has three aspects: “(1) the major purpose of the new rule must be to (2) correct a flaw that substantially impairs the truth-finding function of trial and (3) thereby raises serious questions about the reliability of past verdicts.” Bowman, 169 W.Va. at 606, 289 S.E.2d at 444-45, citing Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971). As we noted in Bowman, “[a]ll three aspects of the Williams test must be satisfied before the need to apply the second two prongs of the Linkletter v. Walker test is obviated....” Bowman, 169 W.Va. at 606, 289 S.E.2d at 445. “A new rule that merely collaterally enhances the integrity of the truth-finding process will not be applied retroactively for that reason alone.” Id. Furthermore, “[t]he question of whether a displaced rule has substantially impaired the truth-finding process requires the application of a balancing test.” Id.
The reasons offered in Bowman for declining to apply the rules in Sandstrom v. Montana and State v. O’Connell retroactively, are equally applicable to our invalidation of the Alexander instruction. We determined in Bowman that the “major purpose” of the Sandstrom rule is not to correct a substantial impairment of the truth-finding process because the “jury was not told that the State had a lesser burden of proof than that constitutionally required. Nor was it told that the defendant had any burden on any material element of the crime.” Bowman, 169 W.Va. at 611, 289 S.E.2d at 447. Rather, the rule in Sandstrom is “to further effectuate the Winship doctrine by reducing the risk of possible jury misinterpretation of instructions that could lead to an In re Winship, or a Mullaney v. Wilbur, type of error.” Id. Moreover, unlike Mullaney type instructions, retroactivity of Sandstrom and O’Connell would have resulted in “windfall benefits” in some cases in which the presence of a Sandstrom type instruction would have caused no unfairness to the defendant.
Similarly, as we noted above, the Alexander instruction does not lessen the burden upon the prosecution to prove every element of the crime beyond a reasonable doubt nor does it shift any portion of that burden to the defendant. Assuming, ar-guendo, that the Alexander instruction is unconstitutional, as we previously stated, its infirmity is more closely related to a Sandstrom type instruction rather than those of the magnitude invalidated under Mullaney. The decision in the case before us is also one intended to “further effectuate” the doctrine of In re Winship and Mullaney. As we stated in Bowman: “Our system of criminal justice could not operate if the effective presumption was that juries consistently misinterpret the instructions given to them by the court.” 169 W.Va. at 612, 289 S.E.2d at 448. Inasmuch as we find that the major purpose of our decision with respect to the Alexander instruction is not to “correct a flaw that substantially impairs the truth-finding function of trial and ... thereby raises serious questions about the reliability of past verdicts,” 169 W.Va. at 606, 289 S.E.2d at 444-45, further inquiry into the three-pronged test of Linkletter v. Walker, supra, is unnecessary.
However, the reliance that courts have placed on the use of the Alexander instruction “also militates against the retroactive application of the rule announced in that case.” Bowman, 169 W.Va. at 614, 289 S.E.2d at 448. The law of West Virginia, as it was stated in the Alexander instruction with respect to alibi, has been used by this jurisdiction since before the turn of the century. See 1 H. Lee, The Criminal Trial in the Virginias §§ 357 & 369 (2d ed. 1940). See also supra note 2. More importantly, to give full retroactive application to our holding in the case now before us would have a severe detrimental effect on the administration of justice as courts would attempt to determine whether the presence of such an instruction in the many cases in which it must have been given, constituted harmless error. Bowman, 289 S.E.2d at 449. Cf. Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983) (the United States Supreme Court has split as to whether the giving of a Sandstrom type instruction could ever be harmless error).
Therefore, the invalidation of the instruction approved in State v. Alexander, supra, that places the burden upon the defendant to prove his alibi defense to the extent that a reasonable doubt is created in the mind of the jury as to his guilt is only applicable to those cases currently in litigation or on appeal where the error has been properly preserved at trial. The holding we reach in the case now before us will not be given full retroactive effect.
II
INSTRUCTION ON POSSIBLE VERDICTS
The appellant further contends that the trial court erred when it instructed the jury that it could return the following possible verdicts: first degree murder, first degree murder with a recommendation of mercy and not guilty. The appellant argues that the inclusion of the verdict of first degree murder with a recommendation of mercy in the face of his objection to such an instruction gave the jury a compromise verdict in violation of W.Va.Code, 62-3-15 [1965].
The record indicates that during the discussion of the proposed instruction the appellant advocated a bifurcated proceeding so that the jury could consider a recommendation of mercy only after it had come to a determination of the appellant’s guilt. We find this to be without merit under the principles set forth in State ex rel. Leach v. Hamilton, W.Va., 280 S.E.2d 62 (1980). In Leach, this Court specifically approved the “unitary trial procedure” of W.Va.Code, 62-3-15 [1965], to determine a defendant’s guilt and the applicable punishment for first degree murder.
Moreover, this Court has made it mandatory for a trial court to instruct a jury that it may add a recommendation of mercy to a first degree murder verdict. As this Court stated in syllabus point 3 of State v. Lindsey, 160 W.Va. 284, 233 S.E.2d 734 (1977):
In a case in which a jury may return a verdict of guilty of murder of the first degree, it is the mandatory duty of the trial court, without request, to instruct the jury that to such verdict it may add a recommendation of mercy, that such recommendation would mean that the defendant could be eligible for parole consideration only after having served a minimum of ten years and that otherwise the defendant would be confined to the penitentiary for life without possibility of parole.
See also syl. pt. 3, State v. Loveless, 139 W.Va. 454, 80 S.E.2d 442 (1954).
We hold that it is the mandatory duty of the trial court to instruct the jury that it may add a recommendation of mercy to a verdict of murder of the first degree and such duty shall be fulfilled by the trial court over the objection of the defendant unless it affirmatively appears from the record that the defendant understands the consequences of his action. See W.Va. Code, 62-3-15 [1965]. We perceive few, if any, circumstances under which a defendant would not want the jury to consider a recommendation of mercy during its deliberations in a trial for first degree murder. In the case before us, the trial court did not err when it included first degree murder with a recommendation of mercy among the possible verdicts and instructed the jury to that effect.
Ill
IMPEACHMENT OP ONE’S OWN WITNESS
The appellant further asserts that the trial court erred when it permitted the prosecution to impeach its own witness with a prior inconsistent statement that was unsworn and which the prosecution knew would be refuted at trial. During trial the prosecution called as one of its own witnesses the appellant’s girlfriend, Pam Glasure. In her original statement made to the police, Glasure stated that she was the one who placed the anonymous telephone call to the local rescue squad directing them to send an ambulance to the address of the victim. She stated that she made the telephone call upon the instructions of the appellant. Glasure, however, at the preliminary hearing and before the grand jury, denied the truth of that portion of her statement as she did at the trial of the appellant. The trial judge then permitted the prosecution to impeach her testimony with the prior inconsistent statement over the objection of the appellant.
In West Virginia, “[t]he general rule is that one may not impeach his own witness absent entrapment, hostility or surprise.” State v. Wayne, 162 W.Va. 41, 245 S.E.2d 838, 841 (1978). See also syl. pt. 5, State v. Ferguson, 165 W.Va. 529, 270 S.E.2d 166 (1980); syl. pt. 11, Hartley v. Crede, 140 W.Va. 133, 82 S.E.2d 672 (1954); syl. pt. 2, State v. Blankenship, 137 W.Va. 1, 69 S.E.2d 398 (1952), overruled on other grounds, State v. McAboy, 160 W.Va. 497, 236 S.E.2d 431, 432 (1977); syl. pt. 2, Lambert v. Armentrout, 65 W.Va. 375, 64 S.E. 260 (1909); syl. pt. 2, Stout v. Sands, 56 W.Va. 663, 49 S.E. 428 (1904). See generally 3A Wigmore on Evidence §§ 896-918 (Chadbourn Revision Supp.1981). Pursuant to this well founded principle, the trial judge determined that the appellant’s girlfriend had become hostile toward the prosecution during her direct examination and allowed the prosecution to impeach her with the prior inconsistent statement. At the request of the appellant, however, the jury was admonished by the trial judge that the prior inconsistent statement of the girlfriend could only be considered for credibility purposes and not for the truth of the matter asserted.
The appellant cites many cases to support the proposition that a party may not impeach his own witness, however, we believe that the better rule is embodied in Rule 607 of the Federal Rules of Evidence which simply states: “The credibility of a witness may be attacked by any party, including the party calling him.” The purpose for the rejection of the previous rule is set forth in the Notes of the Advisory Committee which state:
The traditional rule against impeaching one’s own witness is abandoned as based on false premises. A party does not hold out his witness as worthy of belief, since he rarely has a free choice in selecting them. Denial of the right leaves the party at the mercy of the witness and the adversary.
Fed.R.Evid. 607 advisory committee notes. See United States v. Freeman, 302 F.2d 347 (2d Cir.1962) (criticizing the traditional rule). See generally F. Cleckley, Handbook on Evidence for West Virginia Lawyers § 22 (Cum.Supp.1983).
It should be noted that the adoption of Rule 607 does not free either party to introduce otherwise inadmissible evidence into trial under the guise of impeachment. See United States v. Miller, 664 F.2d 94 (5th Cir.1981), cert. denied, 459 U.S. 854, 103 S.Ct. 121, 74 L.Ed.2d 106 (1982); United States v. Morlang, 531 F.2d 183 (4th Cir.1975); United States v. Crowder, 346 F.2d 1 (6th Cir.1964), cert. denied, 382 U.S. 909, 86 S.Ct. 249, 15 L.Ed.2d 161 (1965). This Court stated in syllabus point 1 of State v. Spadafore, 159 W.Va. 236, 220 S.E.2d 655 (1975):
In a criminal case prior out-of-court statements made by a witness cannot be admitted into evidence for the truth of the matter asserted unless they were made under oath in a judicial atmosphere during the taking of a deposition or at a former trial and were subject at that time to cross-examination by the opposing party’s counsel.
As we noted above, the trial judge admonished the jury to only consider the prior inconsistent statement of the appellant’s girlfriend for credibility purposes and not for its truth. Therefore, the trial court did not violate the standards set forth in State v. Spadafore, supra. See also State v. Cochran, 172 W.Va. 715, 310 S.E.2d 476 (1983).
With respect to the impeachment testimony of the appellant’s girlfriend by her prior inconsistent statement, we hold that the trial court did not err when it allowed the prosecution to impeach its own witness with a prior inconsistent statement and limited the statement’s value to the credibility of the witness. To the extent that prior cases expound a rule contrary to Rule 607 of the Federal Rules of Evidence they are overruled.
IV
THE OUT-OF-COURT EXPERIMENT
The appellant further asserts that the trial court erred when it refused to admit into evidence the taped results of an out-of-court voice experiment conducted by defense counsel. The experiment was calculated to demonstrate that the rescue squad member who received the anonymous telephone call directing him to send an ambulance to the address of the victim, could not identify the voice of the caller as that of Glasure, the appellant’s girlfriend. The State argues that the trial court did not abuse its discretion when it refused to admit the results of the experiment because the conditions under which the experiment was conducted were not similar to the conditions of the actual telephone call.
The results of an out-of-court experiment will not be admitted into evidence unless the party seeking to admit such evidence demonstrates that the conditions under which the experiment was conducted were substantially similar to those of the original conditions sought to be recreated and the question of whether to admit such evidence for consideration by the jury is within the sound discretion of the trial court. Syl. pt. 6, Spurlin v. Nardo, 145 W.Va. 408,114 S.E.2d 913 (1960); syl. pt. 3, State v. Newman, 101 W.Va. 356, 132 S.E. 728 (1926). See also syl. pt. 5, State v. Taft, 144 W.Va. 704, 110 S.E.2d 727 (1959); syl. pt. 2, McClain v. Marietta Torpedo Co., 84 W.Va. 139, 100 S.E. 87 (1919); See generally 22A C.J.S. Criminal Law § 645(1) (Cum.Supp.1983). However, “[w]hile there is no fixed standard of determining the degree of similarity required, the general rule is that the conditions should be substantially or proximately similar, and that the similarity need extend only to those conditions which govern or substantially affect the result.” Syl. pt. 4, State v. Newman, supra.
At the trial, the rescue squad member testified that at approximately 4:00 a.m. on the morning of September 15, 1981, he was awakened by a telephone call while on voluntary duty at the rescue squad. He indicated that during the seven to eight second telephone conversation, a female voice directed him to dispatch an ambulance to 136 Pine Street, the street address of the victim.
The experiment in question was conducted on January 8, 1982, at approximately 11:30 a.m. from the office of the defense counsel. The defense counsel’s secretary placed a telephone call to the rescue squad office at which time the rescue squad member consented to listen to the voices of five different women, including Glasure’s. He then attempted to identify one of them as the voice of the anonymous caller who had made the call some four months earlier. In addition to the five women, both defense counsel and a private investigator were present for the experiment.
Each woman spoke the following words over a telephone: “Send an ambulance to 136 Pine Street and hurry.” The women were instructed to speak those words in a manner “as if they were actually calling an ambulance.” At the conclusion of the experiment the rescue squad member requested a repeat of two of the voices and after compliance, he chose a voice other than Glasure’s as the one most similar to that of the anonymous caller.
The trial court did not err when it refused to admit into evidence the taped results of the out-of-court voice experiment proffered by the appellant. The validity of the results are questionable due mainly to the fact that they were not conducted under substantially similar circumstances as the anonymous telephone call of the early morning hours of September 15, 1981. In addition, the lack of participation by the prosecution and the late hour of its offering to the trial court all cast an aura of unreliability over the results. Therefore, the trial court did not abuse its discretion when it excluded the taped results of the out-of-court voice experiment from consideration by the jury.
V
OTHER EVIDENTIARY ERRORS
The appellant assigns additional errors that are also evidentiary in nature and involve discretionary rulings by the trial court as to their admissibility. It is well established in West Virginia that “[rjulings on the admissibility of evidence are largely within a trial court’s sound discretion....” State v. Louk, 171 W.Va. 639, 301 S.E.2d 596, 599 (1983). Consequently, this Court has held:
“ 'The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.’ Syl. pt. 5, Casto v. Martin, 159 W.Va. 761, 230 S.E.2d 722 (1976) citing Syl. pt. 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955).” Syllabus Point 2, State v. Rector, 167 W.Va. 748, 280 S.E.2d 597 (1981).
Syl. pt. 3, State v. Oldaker, 172 W.Va. 258, 304 S.E.2d 843 (1983). See generally 1 Wigmore on Evidence § 16 (Chadbourn Revision Supp.1981); 5 C.J.S. Appeal and Error § 1556 (Cum.Supp.1983); 5 Am. Jur.2d Appeal and Error § 881 (Cum. Supp.1983).
The appellant contends that the trial court erred when it allowed a knife to be displayed in the courtroom upon the assurance of the prosecution that it would be connected to the murder of Edna Karver. The knife in question had been found in the Plymouth Trailduster that the appellant and Gallo had borrowed the night of the murder. The owner of the Trailduster, Joyce Cooper, testified that the knife was not in the vehicle prior to loaning it to the appellant. Sergeant William Beatty of the Weirton Police Department testified that he discovered the knife in the vehicle shortly after its impoundment.
The record indicates that scientific analysis revealed no blood on the knife. At the trial, the medical examiner testified that the knife could have been the murder weapon, however, on cross-examination the appellant established through the testimony of the medical examiner that five knives from the courthouse kitchen could also have inflicted the deadly wounds of the victim. Upon motion of the prosecution to admit the knife into evidence the appellant objected and the knife was excluded from the trial. The trial court later denied the appellant’s motion for a mistrial based upon the prosecution’s use of the knife.
We find that the trial court did not abuse its discretion when it allowed the knife to be displayed in the courtroom but later excluded it from evidence.
The appellant further argues that the trial court erred when it denied the appellant’s pre-trial motion to exclude certain evidence from trial. Specifically, the appellant sought to exclude the pair of gloves found in the Trailduster, one of which had a bloodstain “the size of a thumbnail,” a pair of the appellant’s tennis shoes, one of which had a speck of blood on it, and the expert testimony surrounding the identification of that blood.
The appellant contends that the prejudicial effect of those items outweighs their probative value and therefore, renders them irrelevant. The appellant also contests the relevance of the expert testimony identifying the bloodstains because the expert indicated that the amount of blood found on these items was only sufficient to identify it as human and was too limited in its amount to specify its type or group. We hold that the trial court did not abuse its discretion when it denied the appellant’s motion to exclude such evidence.
For the foregoing reasons, the judgment of the Circuit Court of Hancock County is hereby reversed and this case is remanded to that court for further proceedings consistent with this opinion.
Reversed and remanded.
. The balance of the appellant's assignments of error are without merit and do not warrant further discussion: the prosecution failed to timely provide the appellant with exculpatory materials, see syl. pt. 5, State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982) (non-disclosure by prosecution must be shown to be prejudicial to the extent that defendant is surprised and it hampers preparation of his case); the trial court erred when it admitted into evidence certain hearsay statements between White and Gallo, see State v. Louk, 171 W.Va. 639, 301 S.E.2d 596, 599 (1983) (admissibility of evidence generally within sound discretion of the trial court); the trial court erred when it denied the appellant’s request for a second jury view of the Trailduster, see W.Va.Code, 56-6-17 [1931], syl. pt. 5, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944), see generally 88 C.J.S. Trial § 47 (Cum.Supp.1983) (granting or refusal of motion for jury view of object involved in criminal prosecution is within the sound discretion of the trial court); the trial court erred when it allegedly abandoned individual voir dire of the jury panel, see syl. pt. 2, State v. Pendry, 159 W.Va. 438, 227 S.E.2d 210 (1976), overruled on other grounds, Jones v. Warden, West Virginia Penitentiary, 161 W.Va. 168, 241 S.E.2d 914, 916 (1978) (the methods and procedures used during voir dire are within the sound discretion of the trial court); the trial court erred when it denied the appellant’s motion for a change of venue, see syl. pt. 4, State v. Hall, 171 W.Va. 212, 298 S.E.2d 246 (1982) (granting of motion for change of venue is within the sound discretion of the trial court); the trial court erred when it questioned various alibi witnesses of the appellant, see syl. pt. 4, State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979) (trial court may intervene in trial process but may not "intimate any opinion” on a material issue); the trial court erred when it commented upon the relevancy of certain testimony in front of the jury, see syl. pt. 5, State v. Wotring, 167 W.Va. 104, 279 S.E.2d 182 (1981) (not reversible error if comment does not go to material issue bearing on witness’ credibility); the trial court erred when it failed to exclude from evidence the out-of-court identification of the vehicle alleged to have been used in the commission of the crime, see State v. Louk, supra; the appellant is entitled to acquittal because the trial court ruled inconsistently in the subsequent trials of the appellant’s co-indict-ees and because his co-indictees were acquitted, see Keith v. Leverette, 163 W.Va. 98, 254 S.E.2d 700, 702 (1979), see generally 24 C.J.S. Criminal Law § 1452 (Cum.Supp.1983) (acquittal of co-indictees on merits may affect the appellant only on a conspiracy charge); the trial court erred when it denied the appellant’s motion for a new trial based upon the insufficiency of the circumstantial evidence and based upon newly discovered evidence, see syl. pts. 1-4, State v. Meadows, 172 W.Va. 847, 304 S.E.2d 831 (1983) (evidence must be "manifestly inadequate” with "consequent injustice” being done to warrant reversal upon insufficiency of evidence and in the case of circumstantial evidence, guilt must be proved to the exclusion of every reasonable hypotheses of innocence), syllabus, State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979) (new evidence must be, inter alia, such as to bring about an opposite result at a second trial and not merely cumulative); and, the cumulative effect of all the above assignments of error warrant reversal of the appellant’s conviction by this Court, see syl. pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972) (cumulative effect of assigned errors must be such as to deprive the defendant of a fair trial).
. In West Virginia, although alibi has long been characterized as an affirmative defense, the prosecution has always had the burden of proving every element of the charge beyond a reasonable doubt. See syl. pt. 1, State v. Withrow, 142 W.Va. 522, 96 S.E.2d 913 (1957); syl. pt. 2, State v. Young, 134 W.Va. 771, 61 S.E.2d 734 (1950); syl. pt. 1, State v. Peterson, 132 W.Va. 99, 51 S.E.2d 78 (1948); syl. pt. 2, State v. Aliff, 122 W.Va. 16, 7 S.E.2d 27 (1940); syl. pt. 3, State v. Lowry, 42 W.Va. 205, 24 S.E. 561 (1896). See generally 1 H. Lee, The Criminal Trial in the Virginias §§ 357 & 369 (2d ed. 1940). However, this Court recognizes that this characterization of alibi as an affirmative defense places West Virginia in the minority. See, e.g., Doisher v. State, 632 P.2d 242 (Alaska App.1981); Harkness v. State, 267 Ark. 274, 590 S.W.2d 277 (1979). See generally 1 C. Torcia, Wharton’s Criminal Law § 43 (Cum.Supp.1983); 22 C.J.S. Criminal Law § 40 (Cum.Supp.1983); 22A C.J.S. Criminal Law § 574 (Cum.Supp.1983).
. The landmark cases of Mullaney v. Wilbur, supra, and In re Winship, supra, dictate that it is the duty of the prosecution to prove beyond a reasonable doubt every element of a crime with which a defendant is charged in a criminal prosecution and that such a burden may never be shifted to the defendant. However, in Patterson v. New York, supra, the United States Supreme Court held that the burden of persuasion may be shifted to the defendant when the defendant asserts an affirmative defense. The definition of an affirmative defense, as set forth in Adkins v. Bordenkircher, supra, is one that ‘“does not serve to negative any facts of the crime which the State is to prove in order to convict of [the crime charged.]’” 674 F.2d at 282, quoting Patterson v. New York, 432 U.S. at 207, 97 S.Ct. at 2325, 53 L.Ed.2d at 290.
. We note that regardless of whether a jurisdiction characterizes alibi as an affirmative defense, courts are not in agreement as to the extent to which a defendant must carry the burden of persuasion with respect to the defense of alibi since the United States Supreme Court’s decision in Patterson v. New York, supra. We do not dispute, as some jurisdictions admonish, that "alibi instructions should contain adequate safeguards against jury confusion and should indicate that the burden of proof remains on the government despite disbelief of the alibi witnesses.” United States v. Fortes, 619 F.2d 108, 123 (1st Cir.1980). The "alibi defense frequently poses the risk that if the alibi evidence is disbelieved, the defense will backfire, leading the jury to convict because of the failure of the defense rather than because the evidence introduced by the government has satisfied the jury of the defendant’s guilt beyond a reasonable doubt.” Wright v. Smith, 569 F.2d 1188, 1191 (2d Cir.1978).
Some courts, however, have not adhered to such a strict rule. In Smith v. Anderson, 505 F.Supp. 642, 644-45 (E.D.Mich.1980), aff’d, 689 F.2d 59 (6th Cir.1982), the United States District Court for the Eastern District of Michigan approved an alibi instruction that informed the jury it could consider the fact that the defendant had presented no alibi witnesses to corroborate his alibi defense but if it had a reasonable doubt as to his guilt he should be acquitted. See also Whalen v. Johnson, 438 F.Supp. 1198, 1203 (E.D. Mich.1977) (the instruction that "an alibi is sometimes easy to prove and hard to disprove” was not burden shifting). Furthermore, the District of Columbia Court of Appeals in Forbes v. United States, 390 A.2d 453 (D.C.1978), held that the following instruction was not burden shifting: "If this evidence of the defendant, considered in its entirety, is sufficient to cause you to have a reasonable doubt as to whether the defendant was present at the time and place alleged, you must find the defendant not guilty.” 390 A.2d at 458.
. Full retroactivity is defined in syllabus point 2 of State v. Gangwer, 168 W.Va. 190, 283 S.E.2d 839 (1981), as follows:
The concept of “full retroactivity” in a criminal case ordinarily means that the new rule is available not only for those cases in litigation or on appeal where the point has been preserved but is also available by way of collateral attack on a final judgment through a writ of habeas corpus.
. The instruction that was at issue in Bowman v. Leverette, supra, reads as follows: ‘"The Court instructs the jury that the law is that a person is presumed to intend that which he does or which is the natural and necessary consequence of his own act.’ ” 169 W.Va. at 599, 289 S.E.2d at 440. Very similar instructions had been struck down in Sandstrom v. Montana, supra, and State v. O’Connell, supra, therefore, the issue for resolution in Bowman was whether to give Sandstrom and O’Connell retroactive application.
. The instruction invalidated in State v. Pendry, supra, states as follows:
The Court instructs the jury that the law is that a man is taken to intend that which he does, or which is the natural and necessary consequences of his own act; and therefore, if they believe from the evidence that Parker Lee Pendry shot and killed the deceased, Cecil Hagerman, by the deliberate use of an instrument likely to produce death, under the circumstances, then the presumption of the law, arising in absence of proof to the contrary, is that he intended the consequences that resulted from said use of said deadly instrument.
159 W.Va. at 749, 227 S.E.2d at 218.
In Mullaney v. Wilbur, supra, the United States Supreme Court invalidated an instruction that emanated from Maine which stated:
"In all cases where the unlawful killing is proved beyond a reasonable doubt, and where there is nothing in the circumstances of the case to explain, qualify or palliate the action, the law presumes it to have been done with malice aforethought. And if the accused, that is the defendant, would reduce the crime below the degree of murder, the burden is upon him to rebut the inference which the law raises from the act of killing, by evidence in defense_ It means that from all the evidence in the case he must be able to satisfy you by a fair preponderance of the evidence that ... although he killed and although he killed unlawfully, if such is the case, he killed in the heat of passion upon sudden provocation.”
Bowman v. Leverette, 169 W.Va. at 597-598 n. 5, 289 S.E.2d at 440 n. 5, quoting Wilbur v. Mullaney, 473 F.2d 943, 944 (1st Cir.1973).
. As we also noted above, in Adkins v. Bordenkircher, supra, the United States Court of Appeals for the Fourth Circuit at least partially relied upon the holding in Sandstrom v. Montana, supra, when it concluded that the Alexander instruction was invalid.
. During the appellant’s trial, the jury was extensively instructed on the burden of the prosecution. Some of these instructions, as contained in the charge to the jury, are as follows:
The burden is on the State of West Virginis [sic] to prove the guilt of the defendant beyond a reasonable doubt. The defendant is not required to prove his innocence. ******
The burden is on the State to prove the guilt of the defendant beyond a reasonable doubt and the defendant, Robert Kopa, is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
******
The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to a defendant for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.
. See generally comment, Bowman v. Leverette: Retroactivity of Criminal Procedure Decisions, 85 W.Va.L.Rev. 273 (1983), for an analysis of Bowman v. Leverette, supra.
. In Bowman we noted that the United States Supreme Court has refused to grant retroactive application to some of its most important criminal procedure decisions by use of the balancing test. For example, in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the Court declined to grant retroactive application to "the new rules" established in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although the Court in Johnson recognized the importance of these decisions, protecting rights under the Fifth Amendment to the United States Constitution, it declined retroactive application because they "‘encompass situations in which the danger is not necessarily as great as when the accused is subjected to overt and obvious coercion_’ ” Bowman, 169 W.Va. at 607, 289 S.E.2d at 445, quoting Johnson v. New Jersey, 384 U.S. at 730, 86 S.Ct. at 1779, 16 L.Ed.2d at 890.
. W. Va.Code, 62-3-15 [1965], provides that if a person is found guilty by a jury of first degree murder he shall be sentenced to life imprisonment in the penitentiary without a possibility of parole. However, the statute further provides "that the jury may, in their discretion, recommend mercy_” | [
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English, Judge:
On the 27th day of September, 1881, the West Virginia Central & Pittsburg Railroad Company leased to Elias Mc-lntire a certain lot in the town of Elk Garden, which is fully described in said lease, being No. 9, for the term of ninety-nine years, which lease contained the following clauses : “He, the said party of the second part, his executors, administrators, or assigns, yielding and paying unto the said W. Va. C. & P. R. R. Co., or assigns, the rent or yearly sum of $24, and that in even equal semiyearly installments, accounting from the 27th day of Sept., 1881, over and above all deductions for taxes and assessments of every kind levied or assessed, or to be levied or assessed, on said demised premises, or the rent issuing therefrom.” The company also leased to said Mclntire lot No. 118, in said town, by a written lease containing similar provisions ; and to J. J. Green lot No. 18 by a similar deed, who assigned his' lease to said Mc-lntire ; and to Anna McKinley lot No. 8 by a similar deed, which last-named lease said Mclntire acquired by purchase from F. M. Reynolds, trustee, under a deed of trust to secure a debt due from said Anna McKinley to said Mc-lntire, — which lots said Mclntire entered upon and occupied by virtue of said assignments or sales. On the 2d day of August, 1894, said company brought an action of as-sumpsit in the circuit court of Mineral county against said Elias Mclntire to recover from him the taxes which had accrued upon said lots, amounting in the aggregate to two hundred and ninety-three dollars and eighteen cents. The defendant pleaded non assumpsit, and the statute of limitation of five years, on which pleas issue was joined, and the case was submitted to the court upon an agreed statement of facts,- which is set out in the defendant’s bill of exceptions ; whereupon the court found for the plaintiff three hundred and forty-five dollars and ninety-five cents, with interest from date of the judgment; whereupon defendant moved the court in arrest of judgment and for a new trial; which motion the court overruled, to which ruling the defendant excepted, and took a bill of exception, and applied for and obtained this writ of error.
The first three assignments of error suggested by the plaintiff in error are to the same effect, claiming that the buildings erected upon said lots were personal property, and should have been so assessed, and not placed upon the land books. Now, that the lots, with their improvements, were properly assessed upon the land books of Mineral county, is apparent by referring to section 40 of chapter 29 of the Code, where it is provided that “as to real property the person who, by himself or his tenant, has the freehold in his possession, whether in fee or for life, shall be deemed the owner for the purpose of taxation.” There can be no question but that the plaintiff was in possession of these lots by its tenant, and therefore the lots were properly assessed to it. There is no contention in the brief of the plaintiff in error that these town lots, and the buildings on them, were persosal estate, and should have been placed on personal property books. Counsel for plaintiff does contend that there is nothing on the face of the lease from said company to Mclntire (and it is agreed that the same provisions were contained in the other leases) to require said tenants to pay the taxes on said property. Now, in addition to the clause above quoted from said lease, it contains the following : “And the said Elias Mclntire, for himself, heirs, executors, administrators, and assigns, covenants with the said W. Va. Central & Pittsburg R. R. Co. and its assigns to pay the aforesaid rent, taxes, and assessments when legally demandable.” This lease appears to have been offered in evidence before the court, and my construction of said first clause is that said Mclntire covenanted to pay for tbe rent of said lot twenty-four dollars in addition to tbe taxes and assessments of every kind levied or assessed on said demised premises. It could never have been intended that the taxes and assessments should be deducted out of the rent, as that construction might consume the entire rent in the payment of taxes, if g-ood houses were erected on the lots. The intention was that the tenants should pay the taxes as part of the rent of said lots, and this intention is made clear by 1he latter clause in the lease.
This lease was entered] into by the parties thereto with the law in regard to assessments before them, and the law formed a part of their contract. They knew thht no part of these taxes under our statute would be charged to Mc-lntire, and therefore it was not their intention, by the provisions of said lease, that these tenants should only pay such taxes as were assessed against them, as is claimed in the fifth assignment of errors. Section 38, chapter 29, Code, provides, in so many words, how town lots shall be assessed, as follows : “In the table of town lots he shall enter separately each lot, whether improved or unimproved, and shall set forth in as many separate columns as may be necessary, the name of the person and his estate, as in the table of tracts of land, charging lots leased for a term of years onground rent including all improvements thereon, not to the lessee, but to the tenant for life or fee simple owner under whom the lessee holds.” Thus there could be no mistake in referring to the law as to whom said lots would be properly assessed.
The eighth assignment of error is that the court erred in deciding that said Mclntire, as assignee or owner of the buildings on said lot, was bound by the stipulations of said leases as to taxes, when not signed by him. It appears, however, from the agreed statement of facts, that Mcln-tire accepted both of the leases executed to him, placed them on record, and took possession of the lots thereunder. He also took possession of the lot assigned to him by Green as well as the one purchased from Reynolds, trustee, accepted the assignment, and had it placed on record. It is contended by counsel for the defendant in error, I think correctly, that the acceptance of said deeds has the effect to bind said Mclntire to the covenants therein contained. This contention is sustained by the law as stated in 2 Devi. Deeds, § 1074, as follows : “A grantee, by accepting a deed which provides that he shall assume a mortgage, is as much bound as he would be if he had executed a special contract for that purpose. The principle is well settled that where one, by deed poll, grants land, and conveys any right, title, or interest in real estate to another, and where there is any money to be paid by the grantee to the grantor, or any other debt or duty to be performed by the grantee to the grantor, or for his use and benefit, and the grantee accepts the deed, and enters on the estate, the grantee becomes bound to make such payment or perform such duty, and, not having sealed the instrument, he is not bound by it as a deed, but, it being a duty, the law implies a promise to perform it, upon which promise, in case of failure, assumpsit will lie, ”• — citing numerous authorities.
The ninth assignment of error claims that the court erred in holding that the covenant to pay taxes in said leases ran with the land. Now, as to the two leases made directly to the defendant, Mclntire, this assignment would not apply. The leases, it is agreed, were all alike, and on the face of the paper the parties contract, for themselves, executors, and assigns, to perform the covenants, etc. In 12 Am. & Eng. Enc. Law, 1022, we find it said that “a covenant to pay taxes is a covenant which runs with the land,” —citing numerous authorites. Also, in Id. 1034, the law is stated thus : “An assignment of the term bythe lessee creates a privity of estate between the lessor and the as-signee after the acceptance of the leasehold estate by the latter.” See, also, Gas Co. v. Johnson, 123 Pa. St. 576, (16 Atl. 799), where it is held that an assignee of the lease is fixed with notice of its covenants, and takes the estate of his assignor cum onere; and that “each successive as-signee of a lease, because of privity of estate, is liable upon covenants maturing and broken while the title is held by him,” etc. 10 Am. St. Rep. 553. See note to the case.
The tenth assignment of error claims that the court erred in holding that the statute of limitations of five year? did not apply to this case. This assignment, we think, is not well taken, for the reason that, although the action is assumpsit, the obligation upon which the action was founded was in writing, and, as I think, the statute of limitations does not apply. In support of this conclusion, I ask, where do we look for the contract of the lessee, Mclntire ? Surely, to the face of the writing; and looking to the lease, we find he covenants with the lessor to pay the rent, taxes, and assessments when legally demandable. The only evidence outside of this lease is that said lessee accepted the property and took possession under the lease, which appears in the agreed statement of facts. Devlin on Deeds in section 1074, in addition to what is quoted above from that section, says, (speakingof the acceptance of a deed on the face of which it is covenanted that the grantee is to pay any debt or perform any duty): “Such an undertaking is a contract in writing, binding upon the grantee, just as the acceptance by a lessee of a lease in writing, signed by only the lessor, makes it a written contract binding upon such lessee, and suit can be instituted upon it, and the same rights maintained as though it were signed by the grantee.” So, in the case Schmucker v. Sibert, 18 Kan. 105 (a case in which the opinion was prepared by Brewer, X), it was held : “The acceptance of a deed which in terms provides that the g-rantee is to assume a certain in-cumbrance on the granted premises makes a contract in writing by such grantees to pay that incumbrance, upon which contract the holder of the incumbrance may proceed directly against the grantee, and recover.” Also that “such a contract is not a mere waiver of the statute of limitations by promise or acknowledgment, and therefore necessarily to be signed by the party to be charged thereby, but it is an original contract, by which the grantee creates a liability that had no existence before.” This doctrine is sustained by the case of Dock Co. v. Leavitt, 54 N. Y. 35, where it is held: “The acceptance of a deed, and the enjoyment of the estate granted, estops the grantee, and all persons claiming under him, from denying his covenants, and from denying that the seal attached is his as well as that of the grantor.” The court in its opinion quotes from Trotter v. Hughes, 12 N. Y. 74. Judge Denio says: “The acceptance of a conveyance containing a statement that the grantee is to pay off an incumbrance binds him as effectually as though the deed had been inter partes, .and had been executed by both grantor and grantee.” Also from Spaulding v. Hallenbeck, 35 N. Y. 206, where it is said: “The grantee, having accepted the deed, and taken possession under it, is bound-by the covenants •therein contained as effectually as if he had signed them.” Shep. Touch. 177, is also quoted as saying: “If feoffment or lease be made to two, and there are divers covenants in the deed to be performed on the part of the feoffees or lessees, and one of them doth not seal, and he that doth not seal doth notwithstanding accept of the estate and occupy the lands conveyed or demised in these cases as touching all inherent covenants, they are bound by these covenants as much as if they do seal the deed.” So, also, Platt, Cov. p. 18, says : “The acceptance of a deed is considered equivalent to an actual execution by the lessee.” The statutes of limitation are regarded as statues of repose, and receive their sanction from the fact that their tendency is to place contracts upon a firmer footing than the uncertainty of human memory, and, where they are to run for any considerable period, to require them to be in writing, if the parties expect to enforce them with certainty ; yet where parties accept a lease, and enjoy its benefits, and the great weight of authority indicates that, as to the covenants contained in the lease, the lessees’ contract is evidenced by the writing, it would seem that the statute of limitations which applies to contracts in writing should control, and the bar of such contracts should be ten years, and this is my conclusion upon the question. The other members of the court do not concur with me upon this point, but hold that the strict letter of the statute should be applied, and that the covenants in such a lease are barred in five years, unless the lease is signed by the lessee. The amount of taxes excluded by this ruling would be ninty-one dollars and sixty-six cents, which would not be sufficient to bring the error within the jurisdiction of this Court. The judgment complained of is therefore affirmed. | [
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BROTHERTON, Justice:
This is a certified question from the Circuit Court of Mingo County which asks this Court whether a medical malpractice insurance company is required to defend and pay á judgment on a claims-made policy where a claim was made against the insured more than a year after the policy had expired. The Circuit Court answered this question in the affirmative. We reach the opposite conclusion for the reasons set out below.
On May 25, 1980, Dr. Alfredo R. Soliva contracted with Evanston Insurance Company (“Evanston”) for a policy of malpractice liability insurance on a “claims-made” basis for a period of one year, ending May 25, 1981. For unknown reasons, he chose not to renew the Evanston policy and instead contracted with Aetna Life and Casualty (“Aetna”) for a malpractice insurance policy beginning June 1, 1981. The Aetna policy was an “occurrence” policy. On June 1, 1981, Evanston sent a certified letter to Dr. Soliva, offering an “optional extension period” as provided for in the Evanston policy. Dr. Soliva chose not to avail himself of this offer.
On June 12, 1982, Dr. Soliva was sued for malpractice which allegedly occurred between August 8, 1980, and November 24, 1980. Because the action was not filed prior to May 25, 1981, Evanston denied coverage on the basis that a claim was not made during the policy period. Aetna denied coverage because the alleged malpractice occurred before the effective date of the Aetna policy.
Dr. Soliva, finding himself apparently without insurance coverage, then instituted suit against both insurers and Shand, Mor-ahan & Co., Inc., the insurance agent for Aetna. Both Evanston and Aetna moved for summary judgment. The court below sustained Aetna’s motion but denied the summary judgment for Evanston. Upon its own motion the court then entered an order of certification pursuant to W.Va. Code § 58-5-2 (Supp.1985), requesting that this Court consider the following question:
Is defendant, Evanston Insurance Company, required to defend and pay judgment, if any, on behalf of Dr. Soliva when the claims made medical malpractice insurance policy written by defendant had expired more than one year before the claim or demand received by the plaintiff for money or services was first made against him?
The circuit court answered this question in the affirmative.
In stating his case to this Court, Dr. Soliva makes several contentions, which include:
(1) The claims-made language of the policy was ambiguous.
(2) Dr. Soliva’s reasonable expectations were not fulfilled; and
(3) West Virginia law prohibits a claims-made insurance policy which does not include a tail provision of at least two years duration;
We now address these points.
I.
Interpreting contracts of insurance is a problem often seen by this Court. Like any other legal problem, there is no automatic answer when one party claims that there is an ambiguity. Instead, to determine whether a provision in an insurance contract is ambiguous, we look to four rules of construction.
(1) The contract should be read as a whole with all policy provisions given effect. See generally 2 Couch on Insurance 2d § 15:29 (rev. ed. 1984). If the policy as a whole is unambiguous then the insured will not be allowed to create an ambiguity out of sections taken out of context.
(2) The policy language should be given its plain, ordinary meaning. See, e.g., Adkins v. American Casualty Co., 145 W.Va. 281, 285, 114 S.E.2d 556, 559 (1960). In no event should the plain language of the policy be twisted or distorted. See Green v. Farm Bureau Mut. Auto. Ins., 139 W.Va. 475, 477, 80 S.E.2d 424, 425 (1954). A doubt which would not be tolerated in other kinds of contracts will not be created merely because the contract is one of insurance. See- generally 2 Couch on Insurance 2d § 15:86 (rev. ed. 1984).
(3) A policy should never be interpreted so as to create an absurd result, but instead should receive a reasonable interpretation, consistent with the intent of the parties. See, e.g., Thompson v. State Auto. Mut. Ins., 122 W.Va. 551, 554, 11 S.E.2d 849, 850 (1940).
(4) If, after applying the above rules, reasonably prudent and intelligent people could honestly differ as to the interpretation of the contract language, then an ambiguity will be said to exist. See syl. pt. 1, Prete v. Merchants Property Ins., 159 W.Va. 508, 223 S.W.2d 441 (1976); 2 Couch on Insurance 2d § 15:84 (rev. ed. 1984). Any ambiguity in an insurance contract will be interpreted against the insurer un less it would contravene the plain intent of the parties. See, e.g., syl. pt. 2, Marson Coal Co. v. Insurance Co. of Pa., 158 W.Va. 146, 210 S.E.2d 747 (1974).
In this case, the policy, when read as a whole, clearly states that coverage was limited to claims made during the policy period. The claims-made language was stated in several places in the policy, including a page to itself which stated in bold type: .
Claims Made Policy
This policy is limited to liability for only those
CLAIMS THAT ARE FIRST MADE' AGAINST THE INSURED DURING THE POLICY PERIOD.
Please review the policy carefully.
The plain meaning of this warning is clear, and after reading it no reasonable man could have honestly believed that the policy would cover a claim made a year after the policy expired. Therefore, no ambiguity existed, and the plain language of the contract controls. “Where the provisions of an insurance policy contract are clear and unambiguous they are not subject to judicial construction or interpretation, but full effect will be given to the plain meaning intended.” Syl. pt. 1, Christopher v. United States Life Ins. Co., 145 W.Va. 707, 116 S.E.2d 864 (1960).
II.
Dr. Soliva contends that the requirement that the courts give a reasonable interpretation of the contract means the court should fulfill his reasonable expectations as to coverage. We agree. An insurance contract should be given a construction which a reasonable person standing in the shoes of the insured would expect the language to mean. See Thompson v. State Auto. Mut. Ins., 122 W.Va. 551, 554, 11 S.E.2d 849, 850 (1940); 2 Couch on Insurance 2d § 15:16 (rev. ed. 1984).
This definition of the “reasonable expectations rule,” however, does not aid the plaintiff. Instead plaintiff suggests a minority view taken by several courts that an insured’s “reasonable expectations” are to be given effect despite unambiguous language to the contrary. See, e.g., Stordahl v. Government Employees Ins. Co., 564 P.2d 63, 66 (Alaska 1977). See generally, A. Windt, Insurance Claims and Disputes § 6.03 (1982).
We disagree with the holdings of these cases. A party to a contract has a duty to read the instrument. See, e.g., Reddy v. Community Health Found. of Man, 171 W.Va. 368, 298 S.E.2d 906, 910 (1982). Therefore, where the instrument clearly and unambiguously denies coverage, a man could not, having read this provision, reasonably expect the contract to provide such coverage. See generally Standard Venetian Blind Co. v. American Empire Ins., 503 Pa. 300, 469 A.2d 563, 567 (1983). Because the contract in this case limited coverage to claims made during the policy period, Dr. Soliva could not reasonably have expected Evanston to defend and pay a claim made more than a year after the policy had expired.
III.
Dr. Soliva further claims that insurance policies without a “tail” provision of at least two years are prohibited by W.Va. Code § 33-6-14 (1982), which provides in pertinent part:
No policy ... covering a subject of insurance ... located ... in West Virginia, shall contain any condition, stipulation, or agreement... limiting the time within which an action may be brought to a period of less than two years from the time the cause of action accrues in connection with all insurances other than marine insurances....
To succeed in his argument, the appellant must equate a claim being made with an action being brought. The two are different. A “claim” is defined in the policy as a demand to the insured for payment, while an “action” contemplated by § 33-6-14 is a legal proceeding in court. A claim, therefore, could have been made against Dr. Soliva within the policy period, and an action brought to enforce that claim two years later, and the policy would have provided coverage. The claims-made provision of the insurance policy defined the coverage of the policy. It did not limit the time in which to bring an action under the policy.
For the reasons set forth above, we answer the certified question presented to us by the Circuit Court of Mingo County: “No, Evanston Insurance Company is not required to defend and pay a judgment on behalf of Dr. Alfredo R. Soliva, when the claims-made insurance policy had expired more than one year before a claim or demand was received by Dr. Soliva,” and remand the case to the circuit court for disposition.
Certified question answered; remanded for disposition.
. Other points of error raised by Dr. Soliva we found to be groundless and dismiss summarily.
. Dr. Soliva cites the case of J.G. Link & Co. v. Continental Casualty Co., 470 F.2d 1133 (9th Cir.1972) as precedent for his position. In Link the court held that language in an architect’s errors and omissions policy which provided coverage only “if claim ... is first made against the insured during this policy period” was ambiguous where the insured had been informed about a potential problem before the policy expired. See 470 F.2d at 1135. The case is distinguishable, because the ambiguity found in the phrase was due to the failure of the policy to define what constituted a claim. See 470 F.2d at 1137. The policy in the present case provided a clear definition of "claim" and other terms.
We further note that the Link case is a controversial one which on one occasion was distinguished by the same circuit on an almost identical fact situation. See Hoyt v. St. Paul Fire & Marine Ins. Co., 607 F.2d 864 (9th Cir.1979).
. See generally W.Va.R.Civ.P. 2. | [
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BraNNON, Judge :
Oscar E. Riley brought assumpsit in the Taylor county Circuit Court, and, judgment having been rendered against the defendants, Claude B. Jarvis and Granville E. Jarvis, they bring the case here.
The defendants demurred to the declaration and each count, and the court sustained the demurrer and gave judgment upon such demurrer upon all the counts except the first, and overruled it as to that count. The first count is the ordinary -indebitatus assumpsit for goods, wares, and merchandise sold and delivered. The second is a special count, alleging that defendants and plaintiff made a written contract whereby Claude ¡S. Jarvis agreed to pay individually, out of his own funds, to plaintiff', ten dollars per month, so long as they should continue in business together, or so long as the plaintiff should run the business in a business like and profitable manner, as part consideration for his time and labor about the business; that Granville E. Jarvis executed the writing and bound himself equally with (-laude B. Jarvis, as security for him; and that the plaintiff, under the writing, carried on the business for a certain specified time, for wliicli the defendants became bound to pay him one hundred and twenty dollars, but they refused and failed to do so, etc. The third count was in debit a tus assumpsit, containing a clause for goods and chattels sold, horses sold, work done, and material therefor provided, and other common clauses.
Appellants’ counsel contends that there is a misjoinder of counts, and this on the idea that the liability stated in the second count is against Granville E. Jarvis only as surety, while other counts charge both Olaude tí. and Granville E. Jarvis with joint liability. I think there is nothing in this contention. Where two parties, by written obligation, bind themselves to pay another a given sum, though one sign with the word “surety” annexed to his name, or it be stated in the writing that he is surety, or binds himself as surety, both are equally bound as principals, so far as it concerns the creditor’s right, as they both promise to pay him. It is a mere memorandum to evidence the fact that the one is surety as between the parties bound. Hunt v. Adams, 5 Mass. 358; Id., 6 Mass. 519; Humphreys v. Crane, 5 Cal. 173; opinion. Harris v. Brooks, 21 Pick. 195; Wilson v. Campbell, 1 Scam. 493. Where the surety does not sign the note, but puts a memorandum at its foot that he binds himself as surety for payment of the note, it is the same. The obligation is joint and several. Hunt v. Adams, 5 Mass. 358; Wilson v. Campbell, 1 Scam. 463. I do not think the declaration need have noticed the suretyship feature, as its omission would have been no variance, because immaterial; and, being in the declaration, it does not have any effect, the count charging a joint liability notwithstanding its presence.
The defendants moved the court to strike out the plaintiff’s evidence, but the motion was refused. The only evidence the plaintiff offered was the written contract, and of service under it by the plaintiff'. That evidence could not sustain the action, because it presented a case of variance between alley at a and probata, as the only count of the declaration remaining after action on the demurrer was that one for goods sold and delivered, the first count, and thus there was no count to justify evidence of service, performed, and the plaintiff’s evidence should Lave been stricken out. The case was tried, likely, under a misconception that it was the second or special count, for service under the written agreement, that was left standing after the court’s action on the demurrer; whereas, it is said, and is likely, by mistake in making up the record, it was the Jirst count only that was left. We. must go by the record. We have no knowledge of fact by which to correct it, and no power to correct it. The account tiled with the declaration spec-iiies, as the ground of the plaintiff’s claim, service performed under the contract; Jmt when the court, upon demurrer, struck out all of the declaration under which that account was provable, the account went out with‘the count to which it related, or became improvable under the count remaining. The account is no part of the declaration. You cannot plead to it. There must be a count in the declaration for it to rest upon, — one suiting its nature under which it may be proved. Ho that specification of account cannot shelter this evidence. It is said, in brief of counsel, that the defendants offered evidence in defence, and that this would justify the action of the court in refusing to strike out the plaintiff’s evidence. The record contains not a scintilla of any evidence given by defendants. Whatever the fact may have been on the trial, we know only the record. Moreover, had there been such evidence, it would not sustain the court’s action ; for, while it. is true that a motion to exclude the plaintiff’s evidence, must be made before the defendant offers any, I suppose the case is different where it is one of total variance between allegata- and probata, as there is no count at all to rest the evidence on. Though you have ever so strong a case for recovery under the evidence, you cannot recover without a declaration to admit that evidence.
Again, it is said that the defendants waived their demurrer as to the second count on the theory that they pleaded to it. The court gave final judgment upon the demurrer in favor of the defendants on that second count, and how even a plea to that specific, count at a subsequent term could bring back that count to the declaration I can- ' not see, or how they could waive their demurrer. But there was no plea to that second count specifically. The plea of payment relied on as such waiver was made at a term after that at which the court acted on the demurrer, and that plea, so far from being applicable to the second count, was applicable only to the declaration as it then stood — that is, to the. first count.
It is argued that the plea of payment is to the account filed as a specification of the plaintiff’s claim, and that is for service, thus treating the demand specified in it as before the court. (1) The plea is in terms to the debt demanded in the declaration. (2) There can be no plea to a bill of particulars. Abell v. Insurance Co., 18 W. Va. 400. (3) There could be no such account without a count to support it. But it is said that, even if the second count, be treated as out of the case, the plaintiff should have recovered under the first count for goods sold and delivered, as there was no other plea than payment, which acknowledges the plaintiff’s demand. This position loses its force when we see that the plea- of non-a.xxtt.mpxit to the whole declaration was put in at the same time the demurrer was entered.
Appellants complain of the rejection of two pleas. One was a plea of rex jad-imta, based on a judgment of a justice for some cause in favor of defendants. It is faulty, because it does not in any way show that the dismissal of the suit before the justice was on the merits, so as' to be a bar to a second suit; for, if it was a nonsuit or any other of many causes not precluding another suit, it would not bar. 1 Bart. Law Prac. 534, 535; 7 Rob. Prac. 221; 1 Greenl. Ev. § 530; Burgess v. Sug, 2 Stew. & P. 341. A plea should aver that the decision was on the merits, or it should at least appear by the record vouched. This plea does not vouch the record of the judgment or so aver.
The other rejected plea is that, in another action for the same cause before a justice, there was a submission to arbitration yet pending. The plea is bad, as not stating and describing formally the action in which the submission took place. It wants legal certainty on that point. Does it present good cause for abating this action — that is, does the submission to arbitration bar another action for the same cause? It seems well settled at common-law that a mere agreement to submit to arbitration will not preclude a new suit. Refusal to comply with it is only a ground of action for damages. Corbin v. Adams, 76 Va. 58; Morse, Arb. 79; Smith v. Compton, 20 Barb. 262; Tobey v. County of Bristol, 3 Story, 800, (Fed. Cas. No. 14,065); Knaus v. Jenkins, 40 N. J. Law, 288; 1 Bart. Law Prac. 581, note; note in Nettleton v. Gridley, 56 Am. Dec. 1388; Haggart v. Morgan, 55 Am. Dec. 350, 354. The agreement is revocable until actual award; but then it is not, and the award may be pleaded in bar of another action. Martin v. Rexroad, 15 W. Va. 512; Morse, Arb. 90; Corbin v. Adams, 76 Va. 58. Until the award the agreement is revocable, as will appear from authorities above, and cases cited as to its revocability in Nettleton v. Gridley, 56 Am. Dec. 383. And when the agreement has been made a rule of court, it is no longer revocable. Leonard v. House, 15 Ga. 473; Brickhouse v. Hunter, 4 Hen. & M. 363; Haskell v. Whitney, 12 Mass. 47; Frets v. Frets, 1 Cow, 335; note to Nettleton v Gridley, 56 Am. Dec. 383. While the rule at common-law is that an agreement to arbitrate will be revocable before award, and will not bar another action for the same cause, hew is it under our statute? It is different. The very purpose of our statute provisions on the subject was to render arbitration more effective than it had been. The reason vThy the agreement, was revocable under common-law was, not that arbitration was not favored by it as tending to end litigation, and not for want of consideration, as the ending of litigation was strong consideration, but, because of that principle of law that parties could not, by agreement, oust the courts of the jurisdiction assigned them by law, and could not debar themselves from appealing to the law'and tribunals of the laud; but our legislation has legitimated such agreements, and thus the reason of the old principle has been abrogated.
Our Code (chapter 108) provides that, whether a suit is pending about a controversy or not, parties may submit it to arbitration, and agree that such submission be entered of record in any court, and, on proof of such agreement out of court, or by agreement in court, the submission shall be entered in court, and a rule made on the parties that they shall submit to the award under it, and that such mere submission, either entered or agreed to be entered, shall not be revocable without, leave of court. This is at once seen to go further than common-law, since by it not until award was the submission irrevocable, but under statute the submission by agreement in court, or by agreement out of court that it be entered in court, is not revocable. Under it, do you let the party ignore the submission and bring a new suit? If so, where is the sense of making the submission not revocable? This Oourt, under this statute, has held that an agreement to arbitrate, providing that the award shall be entered as the judgment of the court, cannot be revoked without leave of court. Stiringer v. Toy, 38 W. Va. 86, (10 S. E. 26). The justice’s law (Pode, e. 50, s. 92) provides, as I understand it, that, in a pending action, the parties may by agreement submit to arbitrament, and section 98 provides for judgment on the award. Now, when such submission is made by order in the case, it is not revocable for two reasons: (1) Recause section 96 says that, if no award be returned in fourteen days, the justice may set it aside, but not without notice to the other party, thus giving him right to contest, and showing that it cannot be revoked at the mere pleasure of one pai'ty; and (2) because, when the .submission is entered in the docket, it is a recognition by the court of the arbitration, and is in itself a rule, or equivalent to a rule, upon the parties to submit to the coming award, which, we have seen, renders the submission at common-law even irrevocable. Their agreement implies a consent that the submission shall be made a rule of court. The rule is idle form. Morse, Arb. 80.
But how, in a second suit, is the submission in the first to be availed of? Not by a plea in bar, for the mere submission does not, like an award, pass on the merits. You can plead an award in bar, but not a mere submission, or a pending arbitration. You must use a plea in abatement, as the fact the plea sets up does not bar the cause of action, but only abates the second suit. It is the same as the plea of another suit pending for the same cause, which must be a plea in abatement. 1 Bart. Law Prac. 290; Robrecht v. Marling's Adm'r 29 W. Va. 765, (2 S. E. 827); Morse, Arb. 79. The plea in this case was tendered after a plea of iwii-asstunpsit, and came too late, and was for that reason rightly rejected.
Judgment reversed, verdict set aside, new trial granted, and remanded. | [
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McGRAW, Chief Justice:
This is an original proceeding in mandamus. The petitioners, Cebert M. Meadows, Martha E. Reichard, and Gerald R. Manning, are three workers who suffered injuries in the course of and resulting from their employment. They seek to compel the State Workers’ Compensation Commissioner, Gretchen Lewis, to fulfill the statutory duties of her office. Specifically, the petitioners charge that the commissioner consistently disregards and fails to perform the mandatory duties prescribed by W.Va.Code §§ 23-4-lc; 23-1-13; 23-4-16; and 23-5-1 (1981 Replacement Vol.) We find that the commissioner has not fulfilled the mandatory duties prescribed by statute, and accordingly, we grant the writ.
I.
MEADOWS CLAIM
On November 7, 1977, Cebert M. Meadows was employed by International Electrical Contractors, Inc., of Miami, Florida, and was working as an electrician in Wheeling, West Virginia, when he tripped over a cable and injured his left knee. Meadows filed an application for workers’ compensation benefits on November 10, 1977. The next day, his employer filed its report. The initial physician’s report, completed by Dr. Murphy of Glendale, West Virginia, was filed on November 28, 1977. The injury was diagnosed as a sprain or a meniscus tear of the left knee. Dr. Murphy indicated that Meadows had stopped work on November 10, 1977 (also the date of first treatment), and would be able to return to work on November 17, 1977. The employer’s report and a subsequent report from Dr. Glass of the Wheeling Clinic indicated that Meadows had not stopped working.
On February 4, 1978, the injury was ruled compensable on a no-lost-time basis. The notification letter requested that Meadows inform the commissioner immediately if he were disabled for four or more days. There is no record of any response by Meadows to this notice.
During the two years following the commissioner’s initial ruling of compensability, various physicians submitted reports, all of which indicated that Meadows continued to have problems with his injured knee. In early 1979, Meadows moved to Ashland, Kentucky. In April of that year, Dr. Tou-ma made a diagnosis of degenerative arthritis. A report dated July 6, 1979, from Dr. Craythorne of Huntington, West Virginia, to whom Meadows was referred by the commissioner, indicated that the claimant had not reached his maximum degree of improvement. In July of 1979, Meadows moved to Tennessee. Dr. Williams of Johnson City diagnosed Williams as suffering from “severe osteoarthritis, tricompart-mental left knee.” Dr. Williams further stated that the claimant was totally disabled for any manual labor from September 11, 1979 until January 21, 1980.
The commissioner was informed on February 11, 1980, that Meadows had not worked since May 16, 1979, and had received unemployment compensation from May 21, 1979 until November 1, 1979. Meadows, by counsel, requested payment of TTD benefits from November 1, 1979. On April 4, 1980, the commissioner awarded the claimant TTD benefits from February 18, 1980 to, but not including, March 28, 1980. Meadows was given thirty days to submit additional evidence to justify keeping the claim open. On May 9, 1980, the claim was closed on a TTD basis by order of the commissioner, on the ground that no attending physician’s report (WC-219) had been received within thirty days of the date of the previous order.
Meadows filed a timely objection to the order closing his claim and submitted a WC-219 completed by Dr. Williams on May 22, 1980. The return-to-work date was listed in the report as “unknown” and the date of next examination was shown as July 21, 1980. Dr. Williams also indicated that additional hospitalization would be required. On May 30, 1980, Meadows’ counsel petitioned to reopen the claim. However, on June 2, 1980, the commissioner set aside the May 9, 1980 order, explaining that sufficient medical evidence had been timely submitted and that the claim had been closed due to a clerical error. Although the order closing the claim was “set aside and held for naught,” the petition to reopen the claim was processed. On July 16,1980, the commissioner acknowledged receipt of the reopening petition, and stated that the request established a prima facie case for reopening. Meadows was notified that unless his employer protested within thirty days, the claim would be reopened on a TTD basis.
On July 21, 1980, counsel wrote to the commissioner stating that benefits had been paid through May of 1980. Benefits were requested from May 22, 1980 to July 21,1980. In response to the July 21 letter, an “Inquiry Specialist” wrote to Meadows’ counsel that “[tjemporary total disability benefits cannot be paid unless the physician states exact dates.” Because Dr. Williams had written “unknown” as the anticipated period of disability on the most recent WC-219, the report would not be used as the basis for paying TTD benefits.
On August 6, 1980, the TTD claim was closed for the second time because medical evidence had not been submitted showing that Meadows was still disabled and unable to work. On August 14, 1980, Meadows petitioned to reopen the claim. One week later, the process which had been set in motion by the petition to reopen, submitted May 30, 1980, culminated in the commissioner’s order reopening the claim. On September 2, 1980, TTD benefits were awarded from May 22, 1980 through July 21, 1980, the latter date coinciding with the next scheduled examination reported on Dr. Williams’ WC-219, submitted May 22, 1980.
The reopening did not stop the protest process. On October 1, 1980, the commissioner acknowledged the receipt of Meadows’ protest to the May 9, 1980 order. Meadows was informed that he was “entitled to a hearing which shall be held at a time and place to be later fixed.” The protest hearing was scheduled for December 1, 1980, in Wheeling, West Virginia, and respondent informs us that only the hearing examiner showed up.
On November 5, 1980, the TTD claim was closed again, and on November 21, 1980, Meadows protested. On December 1, the November 5 order was set aside and held for naught, having been entered through clerical error. However, the protest survived the setting aside of the order, and Meadows was notified on January 30, 1981, that “a hearing ... shall be scheduled at a time and place later to be fixed.” Meadows withdrew the protest on February 17, 1981.
Meanwhile, on November 11,1980, Meadows’ counsel wrote to the commissioner, expressing his “befuddlement” at the apparently contradictory correspondence which he and his client had received. Counsel also wondered why a hearing was scheduled since the protested order had already been set aside, and, in a separate action, the claim had been reopened.
On December 2,1980, TTD benefits were awarded from July 22 through January 30, 1981. TTD benefits for the period January 6 through February 4, were further awarded on January 14,1981. Benefits were not paid for any period after February 5, 1981, but no order closing the claim and terminating TTD benefits was entered until December 22, 1981.
On March 9,1981, a request was made to reinstate TTD benefits. On March 12, the commissioner informed Meadows that additional medical evidence would be required. A WC-219 had been submitted on January 28, 1981, by Dr. Williams, who ambiguously reported that Meadows had reached his maximum degree of improvement, but would require additional hospitalization; that he would be disabled for three months and would be able to return to work on January 28, 1982. The commissioner requested an operative report, as well as hospital admission and discharge summaries. There was no operative report because although Meadows had been scheduled for surgery, he had twice postponed it. Dr. Williams reported on February 25,1981 that Meadows was “unable to do heavy work or assembly line type work,” and that he would continue to receive treatment. A second request to reinstate TTD benefits was made on May 6, 1981.
On August 6, 1981 a hearing was held on the protest (which had previously been withdrawn) to the November 5, 1980 order (which had been set aside on December 1, 1980). Nevertheless, Meadows and his attorney appeared at the hearing to formally move for reinstatement of TTD benefits. Meadows testified that he had a sixth grade education and had worked in the mines for approximately ten years starting when he was 13 years old. Thereafter he worked as an electrician in the construction trade for about 40 years until his injury. He further stated that he had decided not to undergo surgery in January of 1981, after Dr. Williams advised him that the arthoplasty was elective and that, despite a likelihood of some success, there was a chance that regardless of the operation he might not be able to return to work again.
At the close of the hearing, motions were made to immediately reinstate TTD benefits, and to leave the claim open for submission of additional medical reports. The hearing examiner stated that the reinstatement motion would be submitted for decision, and that the claim would be continued until the next available Charleston docket. Subsequently, on September 18, 1981, Dr. Williams submitted a report in which he stated: “[Meadows’] symptoms have progressed over the last 2 years, and I have recommended a total knee arthroplasty and joint surface replacement. Mr. Meadows has now agreed to have this surgery done, and would like to have this scheduled.” The surgery was performed on October 7, 1981.
On December 22, 1981, the commissioner entered an order closing the claim and terminating TTD benefits, as of February 5, 1981. The reasons given were: (1) “sufficient evidence to justify the payment of additional temporary total disability benefits after February 4, 1981, has not been received by the Fund,” and (2) “the claimant has repeatedly elected to delay the surgery.” This order was protested by Meadows’ counsel on January 20, 1982. In response to the protest, the commissioner once again informed Meadows that he was “entitled to a hearing which shall be held at a time and place to be later fixed.”
Meadows was ultimately granted a 35% award for permanent partial disability (PPD) on July 27, 1982, based on an examination performed by Dr. Robert G. Smith of Huntington, West Virginia. This award was protested on August 9, 1982, and a combined hearing was held on the two pending objections on September 28, 1982. The protest to the PPD award was continued and is not contested here. The TTD claim was also continued. Meadows’ counsel requested that the case file be evaluated to determine whether TTD benefits ought to be paid, or, alternatively, what further evidence would be required to prove entitlement to the benefits. Inexplicably, the request was denied on December 28, 1982. A further hearing was held on March 3,1983, at which time, counsel again requested payment of TTD benefits. We do not have a transcript of this most recent hearing, nor do we have a subsequent record of a decision in the matter.
II.
REICHARD CLAIM
Martha E. Reichard, an employee of the Piece Goods Shop in Beckley, West Virginia, injured her right forearm, right wrist, and left knee on July 31, 1979, while unloading material from a delivery truck. She was treated initially on August 2, 1979 in the emergency room of the Raleigh General Hospital. In early August of 1979, her employer transferred her to North Carolina, where she continued under a physician’s care.
Ms. Reichard applied for workers’ compensation benefits on August 22, 1979. Medical reports were filed on August 23 and August 27, 1979. An employer’s report was filed on September 25, 1979, indicating that Ms. Reichard stopped working on August 2 and returned to work on August 13. The claim was ruled compensable on October 5, 1979, and benefits were paid for a period ending August 13, 1979. Thereafter, TTD benefits lapsed due to the information in the file that Ms. Reichard had returned to work. She was unable, however, to continue working, and on October 3, 1979, underwent knee surgery.
After some delay, during which Ms. Reichard and her employer corresponded with the commissioner in an effort to supply information regarding her work and medical status, the commissioner, in two orders dated March 14, 1980, awarded TTD benefits from October 2, 1979 to, but not including, March 18, 1980. The commissioner explains that the delay in the payment of these benefits was the result of the use of forms supplied by the Industrial Commission of North Carolina.
In March of 1980, Ms. Reichard moved to Pennsylvania, and thereafter, her benefits again lapsed. Dr. Kraynick, of Allentown, Pennsylvania, informed the commissioner on March 20, 1980 that he would be Ms. Reichard’s physician. Dr. Kraynick was notified by letter, dated April 16,1980, that Ms. Reichard must herself make a written request for a change of physicians. On April 21, 1980, Reichard made such a request. A second request was made in August of 1980 and was received by the commissioner on August 16, 1980. By letter dated September 12, 1980, Dr. Kraynick was authorized to treat Reichard's compen-sable injury. A second authorization bears the date September 24, 1980.
Office notes of Reichard’s treating physician in North Carolina were filed with the commissioner on March 24,1980. The final entry, dated December 27, 1979, reports “degenerative changes” and obesity. An exercise program was recommended, and her doctor stated that she was not to work until she had lost weight. Dr. Kraynick submitted a report on April 15, 1980, in which Reichard's medical history was reviewed. Dr. Kraynick found her to be in need of an extensive program to rehabilitate her quadriceps muscle. Anti-inflammatory medication was also recommended. Dr. Kraynick concluded: “I felt she was definitely too heavy for her degenerate knees and I further felt she should be on a strict weight reduction program. I feel if she does lose 35 to 40 lbs. she would be in much better position to return to work.” The report noted that Reichard commenced an active exercise program. On April 21 and May 6, 1980, Reichard was referred by the commissioner to two physicians in North Carolina for independent medical evaluation. The examinations were not performed because Reichard had already moved to Pennsylvania.
On May 7, 1980, the claim was closed on a TTD basis, for the reason that no physician’s report had been received within thirty days of the April 2, 1980 order. Dr. Kraynick submitted a WC-219 form on May 23, 1980, reporting that Reichard had not reached maximum improvement and that both the length of disability and return to work were “indefinite.” On May 29,1980, Ms. Reichard herself petitioned to reopen her claim. The commissioner’s answer states that the petition was never acted upon. However, receipt of the petition was acknowledged in a letter dated October 22, 1980, in which Reichard was notified that her petition established a pri-ma facie case for reopening. The employer was given ten days to show cause why the claim should not be reopened. No objection was made by the employer. Payment of TTD benefits for a three-month period beginning March 18,1980, was made on February 19, 1981. The commissioner admits that there is no explanation for the delay in payment of these benefits.
On September 22,1980, the commissioner was notified that Reichard had moved to New Mexico and continued to be unable to work. She requested a change of physicians. However, this request was refused because Reichard’s treating physician in New Mexico, Dr. Goodman, was not an orthopedic surgeon. A request to authorize a second physician, Dr. Preator, was made on March 2, 1981.
The TTD claim, which had been reopened on February 19, 1981, was closed on April 23, 1981. On May 7, 1981, Reichard submitted a report prepared by Dr. Rosen-baum and petitioned to reopen the claim. Reichard also requested authorization for Dr. Rosenbaum as her treating physician. On May 11, 1981, Dr. Preator was authorized to treat Reichard, despite a reported difficulty in obtaining medical information from Preator. The authorization letter informed Dr. Preator that in completing the required forms, he should indicate a specific period of disability — “unknown” would be insufficient for payment of benefits. Authorization for Dr. Rosenbaum was requested again on May 19, 1981. Ms. Reich-ard’s New Mexico attorney informed the commissioner that his client preferred the more conservative treatment of Dr. Rosen-baum, who opposed the surgery recommended by Dr. Preator. Dr. Rosenbaum reported on June 25, 1981, that Ms. Reich-ard remained “totally disabled for gainful employment.” On July 3, 1981, authorization to Dr. Rosenbaum was denied on the ground that Reichard was being referred to Dr. Barnham “for his recommendations of disability to that caused by the injury and superimposed on the preexisting condition namely obesity.”
Dr. Barnham reported his findings on November 9, 1981, as follows: “[S]he has quite swollen knees ... marked crepitus and winces with pain when the patella is moved ... some marked degree of degenerative arthritis.” He believed that Reich-ard had reached maximum degree of improvement, foreseeing deterioration of her condition, and he further stated that Reich-ard was 100% disabled. In Bamham’s opinion, Reichard might be able to perform a maximum of a half day’s work at a sedentary job. He recommended that she use a cane or two for walking, and that she avoid climbing, prolonged standing, and carrying or lifting of heavy objects. Finally, he concurred with Dr. Rosenbaum’s diagnosis and treatment: “[Gjouty arthritis ... is probably the ultimate cause of her problems and has been exacerbated by the injury and has made her symptomatic.” On December 15, 1981, Ms. Reichard’s attorney forwarded Dr. Bamham’s report to the commissioner and noted in a cover letter that all doctors were in agreement that Reichard was totally disabled. A request was made for advice on what additional information was needed in order to obtain past due compensation. It appears from the record that no response to this request was ever received.
On January 18, 1982, the commissioner referred Reichard to Dr. Pushkin of Charleston, West Virginia, for a permanent partial disability evaluation. On February 1, 1982, Reichard’s attorney in West Virginia informed the commissioner that he advised his client not to appear for examination by Dr. Pushkin. Counsel felt that travel to West Virginia would be an unreasonable burden, and that Dr. Barnham, an orthopedic surgeon to whom the commissioner had made a referral, had already found Reichard to be totally disabled.
On February 3, 1982, Dr. Barnham was again contacted by the commissioner, and was asked for his “opinion regarding treatment, maximum degree of improvement, and permanent partial disability in accordance with the American Medical Association Guide to whole man impairment in relation to the compensable injury.” In his response, dated March 29, 1982, Dr. Barn-ham restated his belief that Reichard was totally and permanently disabled. He found problems with both legs: “I believe it is conceivable that she could have damaged one knee and then over-stressed the other to the point that it has degenerative changes in it.”
On June 28, 1982, Reichard’s current attorney made a written request to the commissioner for action on his client’s claim, since there had been no ruling or order for approximately one year and Ms. Reichard faced serious financial hardship due to her disability and lack of income. Counsel notified the commissioner that if no order were entered by July 12, 1982, he would seek a writ of mandamus. On August 16, 1982, Reichard’s attorney filed a petition for a writ of mandamus in the Circuit Court of Kanawha County to compel the commissioner to enter an order rating Reichard’s permanent disability. A rule to show cause was issued August 18, 1982, returnable on August 31, 1982. There is no indication in the record before this Court of the disposition of the mandamus proceeding below.
Also on August 16, 1982, a medical claims specialist of the commissioner’s claims management division forwarded Dr. Bamham’s March report to Dr. Rosenbaum and asked Rosenbaum for a detailed medical report. Dr. Rosenbaum responded on August 23, 1981, stating that he did not know Ms. Reichard’s current condition because the commissioner had refused to authorize him to continue treatment. He had not seen Reichard since May 7,1981. However, he estimated that the period of dis ability resulting from the knee injury would be approximately two years.
On August 24, 1982, the claim was reopened on a TTD basis. This action was taken in response to the petition for reopening which had been filed on May 29, 1981. On August 26, 1982, an order was entered granting Ms. Reichard TTD benefits from October 28, 1981 to, but not including, March 29, 1982. The order contained a notice that benefits would be suspended if no medical evidence was submitted prior to the last pay date, and that there would be a 60 day suspension period in which to submit additional medical evidence. The order also stated that TTD benefits would be suspended on the date of the order and the claim would be closed on October 28, 1982. On September 10, 1982, another order was entered, awarding TTD benefits from June 18, 1980 to, but not including, July 16, 1981. Again Ms. Reich-ard was notified of the suspension of benefits as of the last pay date, but she was also notified that benefits would be suspended on the date of the order and that the claim would be closed on November 13, 1982.
On September 16,1982, the commissioner entered an order granting Reichard a 10% PPD award. The commissioner noted that Reichard “by counsel, has refused to report to a physician duly appointed by the commissioner to perform an independent medical examination as [the commissioner’s] advising physician ....” The 10% award was based on The Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment published by the American Academy of Orthopedic Surgeons. The commissioner found that any disability greater than 10% did not arise from, nor was aggravated by, the compensable injury-
Reichard, by counsel, protested the PPD award on September 20,1982. This protest was acknowledged on October 6, 1982. Counsel was notified that a hearing would be scheduled. On October 28, 1982, by order of the commissioner, the TTD claim was closed. This order was protested on November 8,1982, and counsel was notified on November 19, 1982, that a hearing would be scheduled.
A combined hearing on both protests was held in Charleston, West Virginia on December 16, 1982. Medical reports and correspondence were submitted at that time. Counsel noted that reports in the file showed that Reichard had not reached her maximum degree of improvement, that knee surgery was necessary, and that she would be temporarily disabled for a three-month period beginning October 8, 1982. At the close of the hearing, both protests were submitted for decision. On February 16, 1983, the commissioner affirmed her prior rulings granting 10% PPD and closing the TTD claim. An appeal was taken to the Workers’ Compensation Appeal Board on February 18, 1983.
III.
MANNING CLAIM
Gerald R. Manning suffered a severe head injury on November 15, 1978, as a result of an automobile accident on the West Virginia Turnpike. At the time of the accident, he was employed by Miami Valley Contractors, Inc. of Dayton, Ohio, and was travelling in a company-owned pickup truck on company time, between two job sites. The pickup was struck head-on by a stolen car. Physicians’ reports indicate that Manning sustained a concussion in the accident. His condition was diagnosed as “left hemiparesis secondary to cerebral contusion.”
Manning’s claim was ruled compensable on December 22, 1978, and TTD benefits were paid from the date of the injury until May 12, 1979. Manning returned to work on June 11, 1979, but was unable to continue working after June 25, 1979. On December 6, 1979, the commissioner granted TTD benefits for the period October 23, 1979 to February 6, 1980. The claim was closed on February 14, 1980.
In the original petition filed with this Court, Manning asserted that he had received no TTD benefits from the date of the injury until October 23, 1979. It appears from respondent’s answer and peti tioner’s reply brief that benefits for much of that time were in fact paid. The transcript of a July 31,1981 hearing shows that Manning testified that he received TTD benefits from the date of the injury up to February of 1980. Whether payments were made for the period from June 25 to October 23, 1979 remains in dispute. Manning claims that he has not received TTD benefits for the period, and the commissioner claims that the benefits have been paid. Sufficient evidence to resolve this factual dispute has not been presented to us. However, we take the commissioner’s assertion that benefits for the period in question have been paid as an admission that Manning was entitled to such benefits.
On October 7, 1980, the commissioner granted Manning a 30% PPD award. The award was based on a report of Dr. Lobo of Huntington, West Virginia, to whom Manning was referred by the commissioner. Dr. Lobo concluded that “the patient’s condition has reached a plateau, and it appears to me that he is entitled to a 30% permanent partial disability of the body as a whole as far as the head injury is concerned.” There is no evidence on the record before this Court of a timely objection to the PPD award. However, there is further evidence concerning the extent of Manning’s disability. A medical report was submitted on October 31, 1980, which showed a deterioration of Manning’s condition.
Manning’s employer wrote to the commissioner on February 25, 1981, to protest the 30% PPD award. The employer contended that Manning was 100% permanently disabled as a result of his injury, that he was incapable of functioning in his job as superintendent, that his injury diminished his mental capacity to the point where his judgment was impaired, and that the residual phsyical effects (paralysis, epilepsy) created safety problems and made it impossible for Manning to operate tools and train new employees.
On April 27, 1981, Manning’s counsel received a letter from the commissioner’s senior counsel, informing him that the commissioner had denied a motion made at a December 23, 1980 hearing to set aside the February 14, 1980 order which closed the TTD claim. Reference was made to the 30% PPD recommendation of Dr. Lobo, and the subsequent 30% PPD award. The letter closed with a notice that “[t]he claim will be rescheduled for additional hearing to give you an opportunity to offer medical evidence.”
On July 23, 1981, a hearing was held in Charleston, apparently related to the protest of the February 14, 1980 order closing the TTD claim. Testimony by Manning and his wife, in addition to medical evidence showing a continuous course of treatment for dizziness and convulsive seizures, was submitted. At the close of the hearing, counsel moved for payment of TTD benefits for a period of time in 1980 when Manning was unable to work. This motion was granted on February 19, 1982, and on February 24, 1982, the commissioner ordered that benefits be paid for the periods from February 14 to February 28, 1980, and from August 15 to October 7, 1980.
At the hearing counsel also requested that the commissioner grant a permanent total disability award. Although the claim was submitted for decision, respondent did not rule on the motion with respect to permanent disability. Additional medical evidence was subsequently submitted by the claimant. A psychological report, dated November 9, 1981, concludes “that the lack of coordination, balance, and loss of memory, plus seizures would render Mr. Manning unable to perform his previous work _ Important to note that Mr. Manning’s automobile accident has resulted in a significant brain dysfunctioning, resulting in poor integration of movements and thoughts, making him a poor risk for work.” A report from Manning’s treating physician on April 16, 1982 indicated that his disability was permanent. Medication and psychotherapy were recommended.
The TTD claim, which had been reopened for the limited purpose of paying benefits back to 1980, was closed by order of the commissioner on April 28, 1982. Manning's counsel protested on April 30, 1982 and requested a hearing “at your earliest convenience.” Counsel was notified of the right “to a hearing which shall be held at a time and place later to be fixed.” Counsel wrote a second letter of protest on May 24, 1982, contending that numerous medical reports had been submitted showing that Manning was unable to work and therefore entitled to benefits.
Meanwhile, Manning had been referred for a psychiatric evaluation. On May 3, 1982, Dr. Weise reported that there was an injury-related psychiatric impairment and that Manning had reached maximum improvement. The doctor recommended a 10% “partial-permanent psychiatric impairment.” On May 26, 1982, the commissioner granted a 10% award for permanent partial psychiatric disability, based on Dr. Weise’s recommendation. This award was in addition to the 30% PPD already granted for physical disability. On June 1, 1982, Manning, by counsel, objected to the combined PPD award, noting the pendency of the petition to reopen the claim and reinstate TTD benefits.
The most recent hearing in this claim was held on June 14, 1982, where counsel contended that Manning was entitled to TTD benefits for a longer period than granted in the February 24, 1982 order. Counsel also reiterated the objection to the April 28, 1982 order which closed the claim on a TTD basis. Finally, it was argued that the evidence supported a permanent total disability award. The claim was then “submitted for a prompt final ruling.” On October 14,1982, counsel wrote to the commissioner, requesting a ruling on his objections.
A letter from the commissioner to Manning’s counsel, dated November 23, 1982, acknowledged receipt of the protests to the April 28 and May 26, 1982 orders, and, despite the fact that a hearing had been held June 14, 1982, further notified him that “a hearing ... shall be held at a time and place to be later fixed.” By order of the commissioner, dated February 7, 1983, the orders of February 24 (granting TTD benefits retroactive to 1980), April 28 (rec-losing the TTD claim), and May 26 (granting a PPD award) were all affirmed. The February 7 order was appealed on February 11, 1983, and the matter is now before the Workers' Compensation Appeal Board.
IV.
Our criteria for entitlement to relief through mandamus are well established.
Before this Court may properly issue a writ of mandamus three elements must coexist: (1) the existence of a clear right in the petitioner to the relief sought; (2) the existence of a legal duty on the part of the respondent to do the thing the petitioner seeks to compel; and (3) the absence of another adequate remedy at law.
Syllabus Point 3, Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981). See also Smith v. West Virginia State Bd. of Ed., 170 W.Va. 593, 295 S.E.2d 680 (1982); United Mine Workers of America v. Miller, 170 W.Va. 177, 291 S.E.2d 673 (1982); Perry v. Barker, 169 W.Va. 531, 289 S.E.2d 423 (1982); State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).
In this case the relief sought by the petitioners is threefold. First, they seek to compel the commissioner to comply with time limitations contained in W.Va.Code §§ 23-4-lc, 23-4-16 and 23-5-1, and to promulgate rules and regulations as contemplated by W.Va.Code 23-1-13. Second, they seek to compel the commissioner to pay temporary total disability (TTD) ben efits and to raise permanent partial disability (PPD) awards to become permanent total disability awards. Finally, the petitioners seek reimbursement from the commissioner for costs and request an award of reasonable attorney fees.
The commissioner contends that the petitioners are not eligible to relief in mandamus because this proceeding is an attempt to circumvent the “adversarial” hearing and appeal process below. Specifically, the commissioner contends that the petitioners’ complaints are moot “because of their posture in the hearing or appeal stage.”
We do not believe that the procedural posture of the petitioners’ claims below renders moot the issues raised here. We note in this regard that, at the time of the filing of the petition herein, Meadows’ claim for TTD benefits remained before the commissioner awaiting adjudication. While Reichard’s and Manning’s claims are before the Workers’ Compensation Appeal Board, W.Va.Code § 23-5-3 (1981 Replacement Yol.) authorizes the board to remand cases to the commissioner for supplemental hearings. Thus, the matters raised by the petitioners are clearly capable of repetition below. Moreover, the failure of the commissioner to comply with statutory time requirements is not an issue which can adequately be addressed at the appeal board level. “While it is true that mandamus is not available where another specific and adequate remedy exists, if such other remedy is not equally as beneficial, convenient, and effective, mandamus will lie.” Syllabus Point 4, Cooper v. Gwinn, supra. See Snyder v. Callaghan, 168 W.Va. 265, 284 S.E.2d 241 (1981); State ex rel. Lemley v. Roberts, 164 W.Va. 457, 260 S.E.2d 850 (1979); Walls v. Miller, 162 W.Va. 563, 251 S.E.2d 491 (1979); State ex rel. Smoleski v. County Court, 153 W.Va. 307, 168 S.E.2d 521 (1969); State ex rel. Bronaugh v. City of Parkersburg, 148 W.Va. 568, 136 S.E.2d 783 (1964). See also State ex rel. White v. Narick, 170 W.Va. 195, 292 S.E.2d 54 (1982); Rissler v. Giardina, 169 W.Va. 558, 289 S.E.2d 180 (1982).
The commissioner’s characterization of workers’ compensation proceedings as “adversarial” is not consistent with the purpose of the West Virginia Workers’ Compensation Act, nor the facts of this case. No employer protests were lodged in connection with the three claims before us here. Under our statutes, the commissioner’s role is that of a referee only when disputes arise between contestants. Otherwise, the commissioner serves in an administrative fact-finding capacity that is not bound by the traditional rules operative in an adversary system. The Act is designed to compensate injured workers as speedily and expeditiously as possible in order that injured workers and those who depend upon them for support shall not be left destitute during a period of disability. The benefits of this system accrue both to the employer, who is relieved from common-law tort liability for negligently inflicted injuries, and to the employee, who is assured prompt payment of benefits.
In his respected treatise, Professor Larson addresses the underlying social philosophy of workers’ compensation systems.
The ultimate social philosophy behind the compensation liability is belief in the wisdom of providing, in the most efficient, most dignified, and most certain form, financial and medical benefits for the victims of work-connected injuries which an enlightened community would feel obliged to provide in any case in some less satisfactory form, and of allocating the burden of these payments to the most appropriate source of payment, the consumer of the product.
A. Larson, Workmen’s Compensation § 2.20 (Desk Ed.1980) (emphasis added).
This philosophy finds substance in our statutes establishing the West Virginia state workers’ compensation system. For example, W.Va.Code § 23-5-3a (1981 Replacement Vol.) provides that it is the policy of our law that:
The rights of claimants for [workers’] compensation be determined as speedily and expeditiously as possible to the end that those incapacitated by injuries and the dependents of deceased [workers] may receive benefits as quickly as possible in view of the severe economic hardships which immediately befall the families of injured or deceased [workers].
Moreover, W.Va.Code § 23-4-7 (1981 Replacement Vol.) specifically declares that a “primary objective of the [workers’] compensation system established by this chapter [is] to provide benefits to an injured claimant promptly.”
Accordingly, we have consistently held in the past that one of the primary objectives of the Legislature in establishing the workers’ compensation system is to provide prompt and fair compensation to injured workers, and that “[l]ong delays in processing claims for [workers’] compensation is not consistent with the declared policy of the Legislature to determine the rights of claimants as speedily and expeditiously as possible.” Syllabus Point 1, Workman v. State Workmen’s Compensation Comm’r, 160 W.Va. 656, 236 S.E.2d 236 (1977). See also Mitchell v. State Workmen’s Compensation Comm’r, 163 W.Va. 107, 256 S.E.2d 1 (1979). State ex rel. Conley v. Pennybacker, 131 W.Va. 442, 48 S.E.2d 9 (1948); Poccardi v. Ott, 82 W.Va. 497, 96 S.E. 790 (1918).
It cannot be disputed that the petitioners, all workers injured in the course of and resulting from employment, have a constitutional right to the benefit of the statutes establishing our system of workers’ compensation. As we stated in Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781, 786 (1981):
By terms of our organic law the people are entitled to the benefit of law enacted by their legislative representatives. The responsibility to see that the law enacted by the people is enforced rests primarily upon the executive department. When, however, the executive department fails to expedite the will of the people as expressed by the Legislature, the people may petition the courts by way of extraordinary proceedings such as mandamus ... to require the executive branch to comply with the law enacted by the Legislature.
The respondent State Workers’ Compensation Commissioner is the executive officer charged with the faithful execution of the workers’ compensation statutes enacted by the Legislature. See W.Va. Code § 23-1-1 (Cum.Supp.1983). Included among the commissioner’s statutory duties are the requirements of W.Va.Code §§ 23-4-lc, 23-1-13, 23-4-16, and 23-5-1, which provide that the commissioner shall act within certain specified periods of time with respect to the processing of claims. These statutes speak in mandatory language that precludes the exercise of discretion on the part of the commissioner. It is well established that mandamus will lie to compel the workers’ compensation commissioner to perform nondiscretionary statutory duties. See, e.g., Wilson v. Lewis, 166 W.Va. 273, 273 S.E.2d 96 (1980); Wnek v. Blizzard, 163 W.Va. 489, 256 S.E.2d 772 (1979); State ex rel. Games v. Hanley, 150 W.Va. 468, 147 S.E.2d 284 (1966); State ex rel. Island Creek Coal Co. v. Hanley, 149 W.Va. 107, 138 S.E.2d 848 (1964); State ex rel. Myers v. Straughan, 144 W.Va. 452, 108 S.E.2d 565 (1959).
V.
The petitioners’ first complaint focuses on the statutes which impose time limits within which the commissioner must act when processing workers’ compensation claims. The petitioners complain that the commissioner fails to act within the statutory time limits. Second, they contend that the commissioner has failed to promulgate rules and regulations which reflect the time limits prescribed by statute.
The relevant statutes are W.Va.Code §§ 23-4-lc, 23-4-16, and 23-5-1. These statutes govern the initial processing of claims as well as determining the merits of petitions to reopen or otherwise adjust claims, scheduling dates for hearings on objections and rendering final decisions.
The procedural history of these claims is a tangled web of benefit payments, claim closures, objections by the claimants, petitions to reopen closed claims, medical reports and “final” decisions by the commissioner. The prevalent theme, however, which emerges from a review of the procedures employed in these claims has been the commissioner’s rudimentary failure to meet the statutorily prescribed time limits. If we desired, we could cite example after example demonstrating the commissioner’s failure to obey the law. For the sake of brevity, however, we cite one example per statute to illustrate that the commissioner frequently fails to act as required by statute.
W.Va.Code § 23-4-lc, inter alia, authorizes the commissioner to “immediately commence payment of temporary total disability benefits” when the employer’s report shows that the employee’s injury will last more than three days. Alternatively, the commissioner “shall commence such payment [of TTD benefits] within 15 days of receipt of the employee’s or employer’s report of injury, whichever is received sooner, and receipt of either a proper physician’s report or any other information necessary for a determination.”
Petitioner Meadows’ claim demonstrates the commissioner’s failure to adhere to this schedule. Meadows filed his claim November 10, 1977, and his employer filed an injury report the next day. The commissioner could have exercised her discretion and awarded TTD benefits at this point, but chose not to do so. The commissioner received a physician’s report November 28, 1977. Upon receipt of this report, the commissioner had until December 12, 1977, to act (15 days after receipt of the physician’s report). However, the commissioner did not rule upon the claim until February 4, 1978, 54 days after the statutory deadline and 85 days after the commissioner received the employer’s report. It is obvious that the commissioner failed to meet the 15-day time limit mandated by W.Va.Code § 23-4-le.
A claimant is allowed 30 days to file an objection to an order of the commissioner. Pursuant to W.Va.Code § 23-5-1, once an objection is filed, the commissioner is given 15 days to set a time and place for a hearing on the objection. Generally, the hearing must be held within 30 days after the filing of the objection, unless the parties agree to postpone the hearing or it is postponed by the commissioner for good cause shown. After the hearing, the commissioner must issue a final decision within 30 days. Thus, if the maximum time period is used for each action, the commissioner, in the absence of a continuance, should rule on objections within 90 days of the filing of the order protested.
On April 28, 1982, the commissioner closed petitioner Manning’s TTD claim. Manning’s counsel filed an objection two days later. The commissioner then had until May 15, 1982, to set a time and place for a hearing on the objection. Although the commissioner informed Manning of his right to a hearing, she failed to specify the time and place. Manning renewed his objection May 24, 1982. The commissioner finally conducted the hearing on June 14, 1982, two weeks past the 30-day time limit prescribed by W.Va.Code § 23-5-1.
The commissioner then had 30 days to render a decision on Manning’s objection. The commissioner once again failed to act, and on October 14,1982, Manning’s counsel requested a ruling by the commissioner. A decision was eventually issued on February 7, 1983, more than six months after the expiration of the 30-day decision period. Thus, it is clear that the commissioner failed to observe the time limits set forth in W.Va.Code § 23-5-1, even though this failure to act was brought to the commissioner’s attention.
Likewise, the commissioner failed to act promptly on petitions to reopen closed claims. W.Va.Code § 23-4-16 states that the “Commissioner shall pass upon and determine the merits of such application [for adjustment] within thirty days after the filing thereof.” Petitioner Reichard filed a petition to reopen her claim May 29, 1980, after the commissioner closed the claim for lack of a physician’s report. The commissioner did not even acknowledge the petition until October 22, 1980, almost four months after the 30-day time limit had expired. The commissioner awarded TTD benefits February 19, 1981, presumably after reopening the claim. Thus, a process which is designed to take no more than 30 days took almost nine months to complete.
The commissioner admits that she “does not always comply with the time provisions [dictated by statute].” The commissioner’s defense to this failure is that “it is impossible to consistently do so, considering the availability of funds, personnel, and space ... limitations.” This is no excuse for the failure of the commissioner to faithfully execute the duties of her office. The Workers’ Compensation Act authorizes the commissioner to employ sufficient staff to administer the workers’ compensation system, see W.Va.Code § 23-1-6 (1981 Replacement Vol.), and to pay their salaries and “[a]ll expenses peculiar to the administration of [the system],” out of the workers’ compensation fund. W.Va.Code § 23-1-2 (1981 Replacement Vol.). Accordingly, any deficiencies in this regard are a failure of management attributable to the commissioner’s failure to staff the agency in the manner necessary to administer the system created by the Legislature.
The time limits found in W.Va.Code §§ 23-4-lc, 23-4-16, and 23-5-1 all contain the word “shall.” We have repeatedly held that, “use of the word ‘shall,’ in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation.” Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781, 789-90 (1981) (cases cited). Therefore, we conclude that the commissioner must act on workers’ com pensation claims within the statutorily prescribed time limits found in W.Va.Code §§ 23-4-lc, 23-4-16 and 23-5-1.
Additionally, the petitioners allege that the commissioner has failed to comply with W.Va.Code § 23-1-13 (1981 Keplacement Vol.). That statute directs that the commissioner “shall adopt reasonable and proper rules of procedure ... and prescribe the time within which adjudications and awards shall be made.”
The petitioners contend that the commissioner has failed to promulgate rules and regulations governing “the time within which adjudications and awards shall be made” as required by W.Va.Code § 23-1-13. A review of the regulations promulgated by the commissioner reveals a clear failure to specify specific time limits. The commissioner contends that the promulgation of regulations specific time periods would be surplusage in light of the time requirements set forth in W.Va.Code §§ 23-4-lc, 23-4-16, and 23-5-1. We do not read W.Va.Code § 23-1-13 as requiring such a redundant act. Rather, we read the statute, inter alia, as existing in aid of the temporal requirements found elsewhere within the Worker’s Compensation Act. Consequently, W.Va.Code § 23-1-13 should be read as the Legislature’s direction to the commissioner to establish by regulations time frames for internal procedures by which the mandatory time limits contained in W.Va.Code §§ 23-4-lc, 23-4-16, and 23-5-1 may be met. Any other interpretation of the statute would contradict the duty of this Court to avoid whenever possible a construction of a statute that leads to absurd, inconsistent, unjust, or unreasonable results. See State ex rel. Simpkins v. Harvey, 172 W.Va. 312, 305 S.E.2d 268 (1983) (cases cited). Accordingly, we conclude that the commissioner is required by W.Va.Code § 23-1-13 to promulgate regulations specifying, inter alia, internal procedural time limits through which adjudications and awards are made.
VI.
TTD AWARDS
Each of the claimants seeks payment of TTD benefits for specific periods. A review of the record before this Court, however, indicates that the claimants have not established the clear right to TTD benefits necessary for relief in mandamus.
A.
Meadows seeks TTD benefits for three specific periods: (1) from September 11, 1979 to February 17, 1980; (2) from March 28, 1980 to May 21, 1980; and (3) from February 5, 1981 to December 22, 1981. We do not address Meadows’ entitlement for the first period because no objection was made below to the commissioner’s order which awarded benefits commencing February 18, 1980. It appears from the record that Meadows did, in fact, receive TTD benefits for the second of the three periods. The commissioner contends that benefits have been paid from February 18, 1980. Although Meadows asserts that TTD benefits were not paid from March 28 to May 21, 1980, this assertion is contradicted by a letter, dated July 21,1980, from Meadows’ counsel to the commissioner, stating that benefits had been received through May of 1980. We are unable to make a determination with respect to the third period for which Meadows seeks TTD benefits as a result of the incompleteness of the record before the court.
B.
Reichard seeks TTD benefits for the period of March 29, 1982 to October 28, 1982. The claimant was granted a PPD award on September 16, 1982, and is not entitled to TTD benefits following this date. See W.Va.Code § 23-4-7a(c) (1981 Replacement Vol.). She may, however, be entitled to TTD benefits for some or all of the period from March 29 to the entry of the order granting the PPD award. Although it appears from the record that the commissioner may have arbitrarily chosen March 29, 1982 as the cut-off date for TTD benefits, we are unable to ascertain from the record the proper date for the termination of benefits. This question is currently before the Workers’ Compensation Appeal Board and we therefore express no opinion on the issue. The appeal board will benefit from an examination of the entire record of Reichard’s claim, which we do not have before us. Accordingly, we decline to invade the appeal process. It is important to note, however, that the appeal board is subject to certain statutory time limitations similar to those imposed upon the commissioner. The board must meet monthly for “as long as may be necessary for the proper and expeditious transaction of the hearings, decisions and other business before it.” W.Va.Code § 23-5-2. The board is also subject to the statutory requirement that “the rights of claimants for [workers’] compensation be determined as speedily and expeditiously as possible_” W.Va. Code § 23-5-3a. In a proper case, mandamus would lie to compel a prompt determination by the board of the merits of a claim before it for consideration. Given the length of time Reichard’s case has been before the appeal board, it should be mature for appeal to this Court if she is not satisfied with the disposition below.
C.
Manning seeks TTD benefits from June 25 to October 23,1979, and from October 7, 1980 to April 28, 1982. There is no dispute that the claimant is entitled to benefits for the first period from June 25 to October 23, 1979. However, a controversy exists as to whether Manning did, in fact, receive benefits for this period of disability. We are unable to resolve this dispute upon the record before us. The commissioner granted Manning a PPD award on October 7, 1980, and he therefore is not entitled to the payment of TTD benefits beyond that date. See W.Va.Code § 23-4-7a(c).
VII.
PPD AWARDS
Claimants Reichard and Manning both challenge their PPD awards, alleging that they are permanently and totally disabled, and are therefore entitled to permanent total disability (PTD) awards.
A.
The commissioner granted Reichard a 10% PPD award based on the Manual for Orthopedic Surgeons. In granting the award, the commissioner relied on the manual to compute Reichard’s percentage of disability because the claimant had refused to travel to West Virginia from New Mexico for an independent medical examination. Although we find the commissioner’s reliance upon the manual to be questionable, we note that there remains a bona fide dispute concerning the extent of the claimant’s permanent disability attributable to her compensable injury. Again, this issue is currently before the appeal board, which has the duty to determine the merits of the appeal as speedily and expeditiously as possible. It has not been shown that review by the board constitutes an inadequate remedy. Accordingly we decline relief in mandamus on this issue.
B.
Manning was granted a 30% PPD award for physical disability on October 7, 1980. A further 10% PPD award for psychiatric disability was granted on May 26, 1982. It is apparent on the record that this combined 40% PPD award is inadequate compensation for this claimant’s permanent disability attributable to his head injury. The undisputed evidence indicates that Manning suffers continued convulsive seizures, loss of balance, dizziness, blackouts, loss of memory, and paralysis. Manning’s employer contends that the claimant is permanently and totally disabled and incapable of functioning in his previous work, as is demonstrated by his unsuccessful attempts to return to his job. The Ohio Rehabilitation Services Commission has determined that the claimant cannot be rehabilitated for substantial gainful employment. Indeed, the commissioner concedes that “it would appear that at this point this man is probably permanently and totally disabled.” There is no serious dispute as to the nature, cause, and extent of Manning’s disability. The evidence indicates that Manning cannot perform his customary work or any type of employment requiring similar skills and abilities. See W.Va.Code § 23-4-6(n) (1981 Replacement Vol.); Cardwell v. State Workmen’s Compensation Comm’r, 171 W.Va. 700, 301 S.E.2d 790 (1983). In view of this evidence, we conclude that Manning has established a clear legal right to a PTD award. We do not believe that review by the appeal board, with its attendant delay, is an adequate remedy for this claimant. Where a claimant clearly shows permanent total disability a proper award should be promptly made. A primary objective of the workers’ compensation system established by the Legislature is “to provide benefits to an injured claimant promptly _” W.Va. Code § 23-4-7. Accordingly, we conclude that Manning is entitled to a PTD award, and we direct the commissioner to enter an appropriate order immediately granting Manning such an award.
VIII.
Finally, the petitioners in this case request an award for court costs and attorney fees. In Nelson v. Public Employees Insurance Board, 171 W.Va. 445, 300 S.E.2d 86, 92 (1983), a mandamus proceeding in which the commissioner was a party respondent, this Court held that, “[i]n mandamus proceedings where a public officer willfully fails to obey the law, attorney fees will be awarded.” The rationale for the award of attorneys fees in Nelson, 171 W.Va. at 451, 300 S.E.2d at 92, applies with equal force in the present case:
Our statutory law does not contemplate that officers of the executive branch of government, after taking their oath, ... will knowingly disregard their duty to faithfully execute the law.... [T]he constitution explicitly contemplates and mandates that public officers “shall perform such duties as may be presented by law.” (Emphasis added.) W.Va. Const, art. 7, § 1. Citizens should not have to resort to lawsuits to force government officials to perform their legally prescribed non-discretionary duties. When, however, resort to such action is necessary to cure willful disregard of law, the government ought to bear the reasonable expense incurred by the citizen in maintaining the action. No individual citizen ought to bear the legal expense incurred in requiring the government to do its job. [citations omitted]
Attorneys for the petitioners in this case were forced by bureaucratic indifference to lead their clients on a Kafkaesque journey through a labyrinth of administrative bungling. Petitions were processed and hearings scheduled for matters upon which determinations had already been made, consequently resulting in proceedings at which only the hearing examiner appeared. Claims were periodically opened, closed, reopened, reclosed, etc., for no cognizable reason other than the commissioner’s repeated justification of “clerical error.” In Meadows’ case, one of the two reasons given for termination of TTD benefits at one point was his failure to submit to surgery which had already been performed over two months prior to entry of the termination order. In Reichard’s case, the commissioner inexplicably took almost five months to acknowledge receipt of a petition to reopen which the commissioner subsequently determined established a prima facie case for reopening. It is apparent that the commissioner has acted unlawfully, in utter disregard not only of mandatory duties imposed by law, but also of the plight of injured workers who desperately need the prompt resolution of their claims. We believe the commissioner’s clear and systematic failure to abide by statutory mandate satisfies the willfulness requirement imposed by Nelson. We therefore hold that the petitioners are entitled to reasonable attorney fees and costs expended in the prosecution of this mandamus proceeding in accordance with the standard set out in Nelson. They should submit a detailed bill to the commissioner for the prompt payment of their fees and costs.
The petitioners are also entitled to payment of attorney fees expended for representation rendered below. The conventional thinking regarding attorney fees in compensation cases “is the same as that for any other case: Each party pays his own lawyer, win or lose.” 3 A. Larson, The Law of Workman’s Compensation § 83.11 (1983). The application of this view is complicated in the context of compensation cases and poses special problems. As Larson notes,
When ... this practice is super-imposed upon a closely calculated system of wage-loss benefits, a serious question arises whether the social objectives of the legislation may to some extent be thwarted. The benefit scales are so tailored as to cover only the minimum support of the claimant during disability. There is nothing to indicate that the framers of the benefit rates included any padding to take care of legal and other expenses incurred in obtaining the award.
Id.
In response to the failure of compensation systems which make no allowance for the recoupment of attorney fees by prevailing claimants to fulfill the income maintenance objectives of workers’ compensation, an increasing number of states have adopted unambiguous statutory provisions which increase a successful claimant’s award by an amount sufficient to allow for reasonable attorney fees. See, e.g., Ark. Stat.Ann. § 81-1332 (Supp.1981); Conn. Gen.Stat.Ann. § 31-300 (West Supp.1983); Del.Code Ann. tit. 19, § 2127 (1979); Fla. Stat. § 440.34(3) (1981); Me.Rev.Stat.Ann. tit. 39, § 110 (Supp.1982); Minn.Stat.Ann. § 176.511 (West Supp.1983); Mont.Code Ann. § 39-71-612 (1981); N.J.Rev.Stat. § 34: 15-64 (Supp.1982); N.M.Stat.Ann. § 52-1-54 (1981); Or.Rev.Stat. § 656.382 — .388 (1981); 77 Pa.Stat.Ann. § 996 (Purdon Supp.1983); R.I.Gen.Laws § 28-35-32 (Supp.1982). Additionally, in 1972, the Longshoremen’s Act joined the growing list of statutes with add-on attor ney fees. P.L. 92-576, § 13, 86 Stat. 1259, codified at 33 U.S.C. § 928 (1976 & Supp. V 1981).
The West Virginia provision recognizing the need for attorney fees in compensation cases is contained in W.Va.Code § 23-5-5 (1981 Replacement Vol.), which provides:
[N]o attorney’s fees in excess of twenty percent of any award granted shall be charged or received by an attorney for a claimant or dependent. In no case shall the fee received by the attorney of such claimant or dependent be in excess of twenty percent of the benefits to be paid during a period of two hundred eight weeks.
This provision is a limitation on the amount of attorney fees which may be received by an attorney representing a compensation claimant. It does not address who shall pay a successful claimant’s attorney fees. W.Va.Code § 23-4-6 (1981 Replacement Vol.), however, provides, “where compensation is due an employee under the provisions of this chapter for personal injury, such compensation shall be ... provided .... ” We have consistently held that workers’ compensation statutes are remedial and are to be liberally construed in favor of claimants for workers’ compensation benefits. See, e.g., Zackery v. State Workmen’s Compensation Comm’r, 162 W.Va. 932, 253 S.E.2d 532 (1979); Workman v. State Workmen’s Compensation Comm’r, supra; Dunlap v. State Workmen’s Compensation Comm’r, 160 W.Va. 58, 232 S.E.2d 343 (1977); Hughes v. State Workmen’s Compensation Comm’r, 156 W.Va. 146, 191 S.E.2d 606 (1972); Johnson v. State Workmen’s Compensation Comm’r, 155 W.Va. 624, 186 S.E.2d 771 (1972). When we read W.Va.Code §§ 23-5-5 and 23-4-6 together in light of this rule of construction, we find nothing which indicates that workers’ benefits should be reduced by the amount of reasonable attorney fees expended in securing their payment.
Our compensation law does not contemplate that benefits paid to disabled workers for personal injuries suffered in the course of employment, which are designed to maintain workers and their families during periods of disability, will be reduced by legal costs incurred in securing those benefits to which workers are entitled by law. “[O]ne of the essential purposes of the Workmen’s Compensation Act as conceived by the Legislature ... is to provide a simple and expeditious method of resolving the question of disputed claims arising from injuries occurring in the workplace.” Mitchell, supra 163 W.Va. at 117, 256 S.E.2d at 9. The act is designed to reduce the necessity for legal representation of injured workers. Claimants cannot be penalized by a reduction in their benefits for attorney fees resulting from the failure of the commissioner to comply with statutory duties. Indeed, no better case could be made for an instance in which fee shifting is more appropriate than the present one.
The objective of our compensation law “is beneficent and bountiful, its provisions broad and generous. The intention and design of its enactment is to establish a mode for the prompt redress of grievances and secure restitution commensurate with the loss of the services of those upon whom depend for support and maintenance the persons named in the statute as its beneficiaries.” Poccardi v. Ott, 82 W.Va. 497, 501, 96 S.E. 790, 791 (1918) (emphasis added). Accordingly, we conclude that where a claimant for workers’ compensation benefits is required to hire an attorney to contest unlawful acts of the commissioner, the claimant should be reimbursed for attorney fees incurred in vindicating his statutory entitlement to benefits. Attorney fees are to be paid by the commissioner who fails to comply with statutory duties. The proper amount of the attorney fee award sought for contested proceedings below should be determined by reference to the factors set out in Disciplinary Rule 2-106 of the Code of Professional Responsibility, see Nelson v. W. Va. Public Employees Ins. Bd., supra; Farley v. Zapata Coal Corp., 167 W.Va. 630, 281 S.E.2d 238 (1981), as limited by the provisions of W.Va.Code § 23-5-5. Counsel should present a detailed statement to the commissioner to facilitate this determination.
Of the three claimants involved in this proceeding, only petitioner Manning has, at this stage, prevailed in his protests to the commissioner’s order awarding permanent disability benefits. Accordingly, as contemplated by the Act, the commissioner shall award Manning attorney fees incurred below in connection with the protest of his PPD award. Manning’s claim for past TTD benefits, as well as the claims raised by the other two petitioners have yet to be resolved on the merits. Should the petitioners ultimately prevail, however, they will be entitled to an award of reasonable attorney fees from the commissioner.
For the foregoing reasons, we grant a writ of mandamus ordering the respondent: (1) to comply with the temporal provisions of W.Va.Code §§ 23-4-lc, 23-4-16, and 23-5-1; (2) to promulgate rules and regulations prescribing the time limits for internal procedures through which adjudications and awards are made; (3) to immediately enter an order granting petitioner Manning a permanent total disability award; (4) to pay the petitioners’ costs and reasonable attorney fees expended in this mandamus proceeding; and (5) to pay petitioner Manning’s attorney fees expended below in the protest of his permanent disability award.
Writ granted.
. With the exception of W.Va.Code § 23-1-13, ' all the aforementioned statutes require the commissioner to act either immediately or within a certain period of time. W.Va.Code § 23-4-lc provides, inter alia, that the commissioner shall determine the compensability of a claim and may commence payment of TTD benefits immediately upon receipt of the employer’s report of injury, and shall in any case commence payment of benefits for a compensable injury within 15 days of receipt of the employee's or employer’s report, whichever is received sooner, and receipt of a physician's report and any other necessary information. Upon a finding that a claimant whose previous claim has been closed, has suffered further TTD or requires further treatment, the commissioner shall immediately commence payment of TTD benefits. W.Va.Code § 23-4-16 provides that the commissioner shall rule upon the merits of an application for adjustment to a claim within 30 days after the filing of the application. W.Va.Code § 23-5-1 establishes a timetable with regard to hearings on objections made to the commissioner’s findings. Within 15 days of the receipt of an objection the commissioner is required to set a time and place for the hearing of evidence. Both the employer and the claimant must be given notice of the hearing 10 days in advance thereof, and the hearing must be held within 30 days of the filing of the objections. The commissioner shall render his decision within 30 days after final hearing. Pursuant to W.Va. Code § 23-1-13, the commissioner is granted rule-making authority. The commissioner is required to adopt rules which, among other things, “prescribe the time within which adjudications and awards shall be made.”
. Dr. Williams was first authorized to perform the arthroplasty on February 1, 1980. Meadows was informed on September 19, 1980, that TTD benefits would be withheld if he refused the recommended treatment.
. The record is unclear, but the second order may have been dated April 2, 1980.
. See footnote 3, supra, and accompanying text.
. The petitioners further request that the commissioner be compelled to create an advisory body to draft regulations contemplated by W.Va.Code §§ 23-1-13 and 23-4-7a (1981 Replacement Vol.). We note that the Legislature has already created “the workers’ compensation advisory board," which, although not a party to this proceeding, has the duty “to advise the workers’ compensation commissioner on matters pertinent to the administration of the workers’ compensation fund.” W.Va.Code § 23-1-18 (Cum.Supp.1983). However, the advisory board’s recommendations are not binding on the commissioner. Thus, the responsibility for complying with the statutory requirements of the Act lies first with the commissioner, and, ultimately, with the governor, who as the State’s chief executive officer has the constitutional duty to "take care that the laws be faithfully executed." W.Va. Const, art. VII, § 5.
. The petitioners also request that the Court "take such action as [it] deems necessary to assure that counsel of record receives copies of correspondence and orders sent to or from [the commissioner].” The commissioner does not address this request in her answer or note of argument. However, in the "Claims Summary” for petitioner Manning, the commissioner does admit that "we are still wrestling with the problem of how to get copies of computer generated orders to parties of the claim other than the employer and the claimant." We agree with the petitioners that the failure to provide copies of orders and other correspondence to counsel of record can have substantial adverse effects on claimants’ rights, and could, in the proper circumstances, constitute an effective denial of due process. It appears from the record that the commissioner recognizes this problem, is taking steps to correct it, and that counsel for the petitioners has been provided with recent orders and correspondence involving the claimants. Accordingly, we do not further address this request for relief.
. The commissioner is given authority by W.Va. Code § 23-1-13 to promulgate special rules of procedure and evidence to govern the administrative process.
. Originally, W.Va.Code § 23-4-lc contained no specific provision regarding time requirements. 1973 W.Va. Acts ch. 141. One year after its adoption, however, the Legislature amended the statute to include the current 15 day limitation on compensability determinations. 1974 W.Va. Acts ch. 145. Similarly, the 30 day adjustment determination requirement now found in W.Va. Code § 23-4-16 is of fairly recent origin. In 1935, the Legislature added a 90 day requirement limiting the period within which the commissioner is to decide applications for claim adjustment. 1935 W.Va.Acts ch. 78. Four years later, the Legislature further reduced this period for adjustment determinations to the present 30 days. 1939 W.Va.Acts ch. 137. Concern with administrative delay has also evidenced itself in the legislative history of W.Va.Code § 23-5-1. Until 1935, there were no time restrictions on the commissioner (1) with regard to setting a time and place for the hearing of evidence on objections to commissioner decisions; (2) with regard to the time within which hearings must be held on objections to commissioner decisions; and, (3) with regard to the period of time within which the commissioner must make a determination after final hearing on objections to commissioner decisions. In 1935, the Legislature enacted a 30 day requirement within which the commissioner must set a time and place for the hearing of evidence on objections to commissioner decisions. 1935 W.Va.Acts ch. 78. In 1973, the Legislature reduced this period to 15 days. 1973 W.Va.Acts ch. 141. In 1937, a provision was added to the act requiring that hearings be held on objections to commissioner decisions within 60 days after the filing of objections. 1937 W.Va.Acts. ch. 104. In 1973, the Legislature reduced this period to 30 days. 1973 W.Va. Acts ch. 141. In 1935, a 60 day time requirement was enacted within which the commissioner must render his or her decision after a hearing on objections. 1935 W.Va.Acts ch. 78. In 1971, the Legislature reduced this period to 45 days. 1971 W.Va.Acts ch. 177. Then, in 1973, the Legislature reduced this period even further to 30 days. 1973 W.Va.Acts ch. 141. The history of these statutory time limitations clearly demonstrates a growing legislative concern with the expeditious handling of injured workers’ claims. This constriction of administrative discretion has been necessary to ensure that the benevolent purposes of our workers’ compensation system are adequately served.
. See footnote 1, supra.
. We wish to make clear that we are here concerned only with the time limitations placed upon the commissioner by W.Va.Code §§ 23-4-lc, 23-4-16, and 23-5-1, and not time limitations placed upon claimants and employers which are not before us. See Bailey v. State Workmen's Compensation Comm’r, 170 W.Va. 771, 296 S.E.2d 901 (1982).
. The petitioners allege that the commissioner has failed to issue or update regulations since they were issued effective January 5, 1976. The commissioner contends that she "clarified” the regulations with the Secretary of State. However, these regulations still bear on effective date of January 5, 1976. The “clarification" made by the commissioner apparently consisted of deleting regulations first issued in 1976.
.The record does not contain a copy of the commissioner’s order of January 14, 1981, which awarded Meadows TTD benefits from January 6 through February 4, 1981. Accordingly, we are unable to determine whether such order constituted sufficient advance notice of termination of benefits pursuant to Mitchell v. State Workmen’s Compensation Commissioner, 163 W.Va. 107, 256 S.E.2d 1 (1979), as applied in Honaker v. State Workmen’s Compensation Commissioner, 171 W.Va. 355, 298 S.E.2d 893 (1982). Although it appears from the limited record we have before us that the commissioner’s order of December 22, 1981, which closed Meadows’ claim, may have been arbitrary and an abuse of discretion, this matter is currently at the hearing stage below, where a full factual development of the issues can be made, and a decision rendered thereon.
. March 29, 1982 is the date of Dr. Barnham’s report which stated that Reichard was permanently and totally disabled. However, Dr. Barn-ham also reported that Reichard might benefit from surgery, which indicates that the claimant had not reached her maximum degree of improvement.
. When the claimant received notice that she was to be examined by Dr. Pushkin in Huntington, her lawyer notified the commissioner that he was advising Reichard not to appear. The commissioner then referred Reichard to Dr. Barnham in New Mexico, and also sought information from Dr. Rosenbaum, the physician who had previously treated the claimant. Nothing in the record before the Court suggests that the commissioner did not acquiesce in the claimant's refusal to travel to West Virginia for examination by Dr. Pushkin — nothing, that is, until the PPD award letter in which the claimant’s refusal was cited by the commissioner as a justification for reliance on the Manual for Orthopedic Surgeons rather than on the opinions of qualified physicians to determine the percentage of permanent disability. Moreover, reliance on the manual itself may pose additional questions if provision for its use is not authorized by statute or regulation, giving parties no notice of this practice by the commissioner.
. In several of the cited states the law requires payment by employers who make “frivolous” or "unreasonable” protests to commissioner determinations in favor of claimants when those claimants ultimately prevail. In the present case, there were no employer protests. | [
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Dent, Judge:
Lando Lane, indicted for killing William Vance, in the circuit court of Mingo county, was found guilty of murder in the second degree, and sentenced to ten years’ imprisonment. He here relies on the following assignment of errors:
“First. .The court erred in overruling your petitioner’s motion for a continuance. Second. The court erred in not furnishing compulsory process for his witnesses. Your petitioner showed, in support of said motion, that he had made an effort to procure counsel, and believed that he had, until the day preceding the calling of his case for trial; that then he learned that the attorneys he believed he had employed would not appear for him; that he then had to procure other counsel, which he did, but who was,' from the short space of time allotted him, unable to prepare for said trial; that.his counsel had demanded attachments for certain witnesses that were material, which had been ordered by the court, and directed to be issued and served, but the clerk of said court did not issue said attachments, or, if issued, no officer of the court would execute, and the fact that such failure of the clerk and sheriff had occurred was not known to the prisoner or his counsel until his case was called for trial, and then the court refused to furnish said compulsory process, or postpone his trial until such witnesses could be procured. The materiality of such witnesses are shown by affidavit subsequently filed, and made part of the record, upon your petitioner’s motion to set aside the verdict and grant him a new trial. Third. The court erred in overruling- motion for continuance upon the ground that the prosecuting- attorney had discharged a witness summoned for the State, which he knew was material for the defense, and sending him away from the court house surreptitiously, without the knowledge or consent of the court, the prisoner, or his attorney. Fourth. The court erred in permitting the State to prove the character of the prisoner, when it had not been put in issue by the defense. Fifth. The court erred in permitting other improper evidence to go before the jury, as will appear from bill of exceptions No. 2. Sixth. The court erred in passing sentence upon petitioner, there being no judgment of guilty pronounced on the verdict of the jury. Seventh. The court erred in passing sentence upon petitioner without having first asked him what, if anything-, he had to say why the court should not proceed to pass the sentence of the law upon him. Eighth. The court erred in refusing to set aside the verdict and granting petitioner a new trial, because the after-discovered and new evidence showed that he was entitled to it, and because the same was contrary to the law and evidence, as shown by bill of exceptions No. 2.”
On a careful examination of these various assigmments of error in the light of the record, there appears no just ground presented iti any of them for the interference of this Cotir t. In his affidavit for continuance the prisoner does not show such due diligence and preparation for trial as would entitle him to such continuance. The rule laid down in the case of State v. Harrison, 36 W. Va. 730, (15 S. E. 982), must govern in such cases, to wit: “A motion for continuance is addressed to the sound discretion of the court, under all the circumstances of the case; and, though an appellate court will supervise the action of an inferior court on such motion, it will not reverse the judgment on that ground, unless such action was plainly erroneous.” The indictment was found at the May term, 1897, and the trial did not occur until September, and after the prisoner was arrested he had ample time to get ready for trial. There is nothing in the record showing that the court refused compulsory process for the prisoner’s witnesses, or refused to postpone the trial until such witnesses could be obtained. Apparently, no such application was made direct to the court, but only a motion for a continuance-, which, in its sound discretion, was refused; and such action does not appear plainly erroneous. The prosecuting attorney had the right to discharge any of the State’s witnesses he might see fit, and, while his surreptitiously sending them away might not be professional, yet it is not a matter of which the prisoner can complain; for, if he wished such witness, he should have had them summoned.' There was no error in admitting the proof touching the character of the prisoner, as he had opened up the matter himself; nor in the admission of the other evidence complained of, which was a part of the res gestee. The sixth and seventh assignments relate to mere formal matters, which have been abandoned or become obsolete in the courts of this State, unless it be a case where capital punishment is about to be inflicted; for the prisoner is afforded every opportunity to move for a new trial, or in arrest of judgment, without this final inquiry, and he was fully afforded such opportunity in this case. 21 Am. & Eng. Enc. Law, 1068, 1069. The eighth and last assignment of error relates to the refusal of the court to grant a new trial because the verdict was contrary to the law and evidence, and because of newly-discovered evidence. The evidence newly discovered is merely accumulative, and could not possibly change the result. On a careful examination of all the evidence, including the affidavits for a continuance, it is not only impossible to say that the prisoner has been unjustly convicted, but it is possible to say that the verdict is a just one, and should be maintained. The killing with a deadly weapon is not denied, but it is claimed by the prisoner to have been in self-defense. The-evidence and circumstances, other than the prisoner’s own testimony, clearly show that the killing could have been avoided by the prisoner, had he been so minded, and that on very slight provocation he unnecessarily took the life of a fellow man; and for so doing his sentence is none too harsh. The judgment will therefore be affirmed.
Affirmed. | [
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Miller, Justice:
In this original habeas corpus proceeding the relator contends that his life sentence under our recidivist statute, W. Va. Code, 61-11-18 and -19, is void. He further urges that his conviction for second degree sexual assault be set aside in that he was compelled to wear prison clothes at the time of the trial, in violation of the principle of Estelle v. Williams, 425 U.S. 501, 48 L. Ed. 2d 126, 96 S.Ct. 1691 (1976). Finally, he states this same principle applies to his witnesses, who were brought to the trial in prison garb and handcuffs.
The State admits that the life imprisonment sentence is void under the principles stated in the Syllabus of State v. McMannis, _ W. Va. _, 242 S.E.2d 571 (1978), which requires the State to prove “that each penitentiary offense, including the principal penitentiary offense, was committed subsequent to each preceding conviction and sentence.” We agree, and therefore do not discuss this assignment of error.
McMannis was confined in the State Penitentiary on a previous felony conviction. At the time of the present trial, he was returned to Mineral County to be tried for a sexual offense which allegedly occurred in the Mineral County Jail while he was awaiting a hearing on a writ of habeas corpus relating to a previous felony conviction. Throughout the present trial he was clothed in prison issue bearing the inscriptions “West Virginia Penitentiary” and “WVP” both on the seat of the pants and the back of the shirt.
Relator’s counsel did not object to this attire until after he had examined the first defense witness and had called his second witness, Ray Hott. At this point Hott, along with Robert Kerns, another defense witness, both of whom were inmates of the Penitentiary and had been fellow jail inmates with the defendant at the time the sexual assault occurred, were brought into the courtroom. Each was dressed in prison garb identical to that of the defendant and each was handcuffed.
At this juncture, defense counsel moved for a mistrial on the ground that the appearance of Hott and Kerns in prison garb identical to that worn by the accused, and in handcuffs, raised “an unfavorable opinion” and “inference” in the jurorV minds about the defendant.
Interpreting this contention as in part an assertion that the defendant himself ought not be wearing prison clothing, the trial court stated that “it’s been noted all through the trial that, and I assume that [it is] Richard Ray McMannis’ choice, in the best sense of the word, but it is his choice that he is here in prison garb. * * *” As to witnesses Hott and Kerns, the court ordered that the guards put on and remove their handcuffs outside the presence of the jury during the remainder of the trial. Thereupon, the trial resumed and Hott and Kerns testified.
I
Estelle v. Williams determined that a criminal defendant may not be compelled to wear prison attire at his trial. The basis of this rule was found to rest on the principle that “[T]he presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” 425 U.S. at 503, 48 L. Ed. 2d at 130, 96 S.Ct. at 1692.
Estelle involved a Texas state trial where the defendant, who had been held in j ail because he was unable to make bond, was brought to the trial in prison garb. He had asked for his civilian clothes before trial, but this was denied by the jail authorities. At the trial during the voir dire, his attorney made reference to his attire, but did not make objection to the court that his client was compelled to attend the trial in prison attire.
Obviously, since it was dealing with a state conviction, the Court had to utilize the Due Process Clause of the Fourteenth Amendment to apply the constitutional standard to the states: “The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment.” 425 U.S. at 503, 48 L. Ed. 2d at 130, 96 S.Ct. at 1692.
After setting the issue on the constitutional pedestal, the Court indicated that it was not a fundamental right such that a knowing and intelligent waiver of the right must be shown, and concluded:
“Accordingly, although the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.” [425 U.S. at 512-13, 48 L. Ed. 2d at 135, 96 S.Ct. at 1697]
We recognize that Estelle differs factually from the present situation, in that the defendant in Estelle was not being tried, as was the defendant McMannis, for a crime committed while he was in jail. Estelle noted that in this latter situation, courts have concluded that being tried in prison garb is not prejudicial, since the jury will learn of the defendant’s confinement in the course of the development of the evidence:
“In other situations, when, for example, the accused is being tried for an offense committed in confinement, or in an attempted escape, courts have refused to find error in the practice. In United States ex rel. Stahl v. Henderson, 472 F2d 556(CA5), cert denied, 411 U.S. 971, 36 L Ed 2d 694, 93 S Ct 2166 (1973), the Court of Appeals declined to overturn a conviction where the defendant, albeit tried in jail clothes, was charged with having murdered another inmate while confined in prison. ‘No prejudice can result from seeing that which is already known.’ 472 F2d, at 557. In the present case, the Court of Appeals concluded:
“ ‘A different result may be appropriate where the defendant is on trial for an offense allegedly committed while he was in prison, because the jury would learn of his incarceration in any event.’ 500 F2d, at 209 n 5.
“Contra: People v Roman, 35 NY2d 978, 324 NE2d 885 (1975).” [425 U.S. at 507, 48 L. Ed. 2d at 132, 96 S.Ct. at 1694]
Here, there is no question that during the course of the trial on the sexual offense committed against a fellow prisoner, ample evidence was developed to show that the defendant McMannis was incarcerated at the time the offense was committed and at the time of his trial. Under United States ex rel. Stahl v. Henderson, 472 F.2d 556 (5th Cir. 1973), cert. denied, 411 U.S. 971, 36 L. Ed. 2d 694, 93 S.Ct. 2166, we can conclude that any prejudice arising from the prison garb was substantially diminished by the jury’s hearing the evidence that the offense was committed while the defendant was incarcerated. See, e.g., Shuman v. State, 578 P.2d 1183, 1187 (Nev. 1978).
We are not involved with a pure Estelle situation, where the defendant is compelled to wear prison attire in a trial which is unconnected with a prison offense. Here, the doctrine of harmless constitutional error can be applied. Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065 (1967); State v. Kirtley, -W. Ya. -, _ S.E.2d _ (No. 13912, November 28, 1978); State v. Thomas,_W. Va. _, 203 S.E.2d 445 (1974).
We, therefore, hold that a criminal defendant has the right under the Due Process Clause of our State and Federal Constitutions not to be forced to trial in identifiable prison attire. However, where a criminal defendant is tried in identifiable prison attire without any initial objection, and the offense for which he is tried is prison-related such that the jury necessarily knows from the evidence that he was in prison at the time of the commission of the offense, the error will be deemed not prejudicial under the doctrine of harmless constitutional error.
II
When we turn to the defense witnesses, Hott and Kerns, we find that objection was made to their appearance in prison attire and their being handcuffed as they were brought into the courtroom.
We do not extend Estelle’s constitutional principle to a defendant’s witnesses. The reason is simple: Estelle is bottomed on the defendant’s constitutionally sanctioned presumption of innocence, across which prison attire can cast a substantial shadow, since the attire communicates a condition of guilt. The defendant’s witnesses are not cloaked in his presumption of innocence, nor do they derive such shelter independently.
While the subject of the defendant’s witnesses attending court attired in prison clothes has not received extensive consideration, at least one court has indicated some Estelle implications contrary to our analysis. State v. Yates, 174 Conn. 16, 381 A.2d 536 (1977), after citing Estelle, went on to state:
“The logical extension of that principle applies to incarcerated witnesses who are required to testify while dressed in prison attire. [Footnote omitted] In the minds of the jurors the credibility of such witnesses can be affected in the same manner as the presumption of innocence can be diminished by the defendant’s appearance in prison garb. ..[174 Conn, at_, 381 A.2d at 537]
It seems apparent, however, that Yates did not elevate the defendant’s right to have his witness appear in civilian attire to a constitutional level as set in Estelle, since the court did not discuss the presumption of innocence, but merely rested its decision on the possible prejudice flowing to the defendant by having his witnesses appear in prison garb.
In United States v. Carter, 173 U.S. App. D.C. 54, 522 F.2d 666 (1975), the defendant objected to his co-conspirator being dressed in prison attire, and the court indicated that this could have a prejudicial impact on the defendant’s case. The court did not deem it necessary to consider the point as reversible error, but did condemn the practice and indicated that under some conditions it might be reversible error. Carter’s discussion was on the basis of affecting the credibility of the defendant’s case, on the ground that the co-conspirator is linked to the same crime committed by the defendant. We do not read Carter as elevating the issue to a constitutional level.
The few other courts which have considered this issue recognize that the defendant’s case may be prejudiced if his witnesses are forced to appear in prison attire, since this may substantially impair the credibility of their testimony in the jury’s mind. See, e.g., Eaddy v. People, 115 Colo. 458, 174 P.2d 717 (1946); Collins v. State, 70 Okla. Crim. 340, 106 P.2d 273 (1940); A.B.A. Advisory Committee on the Criminal Trial, Standards Relating to Trial by Jury (Approved Draft 1968), Standard 4.1(b). Again, there is no suggestion in these cases that a constitutional right is implicated where a prison witness other than the defendant is involved.
Consequently, because there is no constitutional right accorded to a defendant to have his prison witnesses appear at his trial in civilian attire, the relator is not entitled to attack his conviction on this basis in the present habeas corpus proceeding. We have consistently stated that “[a] habeas corpus proceeding is not a substitute for a writ of error or other appellate process .. Pyles v. Boles, 148 W. Va. 465, 490, 135 S.E.2d 692, 707 (1964), cert. denied, 379 U.S. 864, 13 L. Ed. 2d 67, 85 S.Ct. 130; State ex rel. Housden v. Adams, 143 W. Va. 601, 605, 103 S.E.2d 873, 875 — 76 (1958); State ex rel. Browning v. Tucker, 142 W. Va. 830, 833-34, 98 S.E.2d 740, 743 (1957). By this we mean that ordinary trial error not involving constitutional violations will not be reviewed in a habe-as corpus proceeding.
This is not to say, however, that the matter may not, in an appropriate case, constitute reversible error on appeal if a timely objection is made. The foregoing authorities plainly suggest this result.
Ill
The question of the prejudicial effect of the defendant’s witnesses appearing in the courtroom in handcuffs or shackles has received more attention. The traditional rule is that a criminal defendant has the right, absent some necessity relating to security or order, to have his witnesses appear at trial free of shackles. Kennedy v. Cardwell, 487 F.2d 101, 105 n. 5 (6th Cir. 1973), cert. denied, 416 U.S. 959, 40 L. Ed. 2d 310, 94 S.Ct. 1976 (1974); United States v. Esquer, 459 F.2d 431 (7th Cir. 1972), cert. denied, 414 U.S. 1006, 38 L. Ed. 2d 243, 94 S.Ct. 366 (1973); State v. Chavez, 98 Ariz. 236, 403 P.2d 545 (1965); State v. Crawford, 99 Idaho 87, 577 P.2d 1135, 1146 (1978); Jessup v. State, 256 Ind. 409, 269 N.E.2d 374 (1971); Commonwealth v. Brown, 364 Mass. 471, 305 N.E.2d 830 (1973); State v. Coursolle, 255 Minn. 384, 97 N.W.2d 472, 75 A.L.R.2d 755 (1959); McVey v. State, 541 P.2d 273 (Okla. Crim. 1975); Annot., 75 A.L.R.2d 62 (1961).
Prior to Estelle, most if not all of the courts had evolved the same rule with regard to the defendant appearing at trial in shackles. The basis for the rule as to both the defendant and his witnesses was that physical restraints marked the person as a violent criminal, which would seriously affect his credibility in the jury’s mind.
We have not been cited nor have we found any case subsequent to Estelle which has held that the defendant has a constitutional right, based on the presumption of innocence, not to be tried in physical restraints. In this case we are not required to determine whether Estelle’s constitutional principle applies to a defendant tried in physical restraints. The defendant was not so tried, but complains that his witnesses in handcuffs were brought into the courtroom in the presence of the jury and that this affected their credibility and prejudiced his case.
Again, we do not elect to apply Estelle’s constitutional principle to the defendant’s witnesses, since they are not entitled to the benefit of his presumption of innocence. A criminal defendant has no constitutional right to have his witnesses appear at trial without physical restraints or in civilian attire.
As we have stated with respect to the witness prison garb issue, there may be occasions when forcing the defendant’s witnesses to testify in physical restraints may create sufficient prejudice that reversible error will occur. This type of trial error, as we have previously noted, is not reachable by a writ of habeas corpus. Pyles v. Boles, supra; State ex rel. Housden v. Adams, supra; State ex rel. Browning v. Tucker, supra.
We conclude that the recidivist portion of relator’s sentence is void under principles set out in State v. McMannis, _W. Va._, 242 S.E.2d 571 (1978), but that the underlying sexual offense sentence is not invalid. We have previously held that the void portion of a judgment can be attacked in a habeas corpus proceeding, but if there remains a valid portion of the sentence yet to be served, the relator is not entitled to a discharge. State ex rel. Bonnette v. Boles, 148 W. Va. 649, 654-55, 136 S.E.2d 873, 876-77 (1964); State ex rel. Robb v. Boles, 148 W. Va. 641, 647-48, 136 S.E.2d 891, 894-95 (1964).
The writ of habeas corpus is therefore discharged and the relator is remanded to serve the valid portion of his sentence of confinement.
Writ discharged; prisoner remanded.
For a summary of the pve-Estelle law with respect to prison garb, see Note, “Estelle v. Williams and the Waiver of Due Process Trial Protections,” 14 San Diego L. Rev. 1252, 1253-57 (1977).
Standard 4.1(b) reads:
“An incarcerated defendant or witness should not be required to appear in court in the distinctive attire of a prisoner or convict.”
Because prison witnesses do not appear in court without some prior arrangement with the custodial authorities, we believe that it is incumbent upon defense counsel, if he wishes to obtain prison witnesses, to make voluntary arrangements with the custodial authorities for them to appear in civilian attire. If a voluntary arrangement cannot be made, he should move the court for an order in advance of trial. Cf., e.g., Commonwealth v. Brown, 364 Mass. 471, 306 N.E.2d 830 (1973).
The term “shackles” is taken in its broadest sense to include all types of physical restraints.
Kennedy v. Cardwell, 487 F.2d 101 (6th Cir. 1973), cert. denied, 416 U.S. 959, 40 L. Ed. 2d 310, 94 S.Ct. 1976 (1974); United States v. Samuel, 431 F.2d 610, 614-16, 433 F.2d 663 (4th Cir. 1970), cert. denied, 401 U.S. 946, 28 L. Ed. 2d 229, 91 S.Ct. 964 (1971); Woodards v. Cardwell, 430 F.2d 978, 982 (6th Cir. 1970), cert. denied, 401 U.S. 911, 27 L. Ed. 2d 809, 91 S.Ct. 874 (1971); Loux v. United States, 389 F.2d 911, 919-20 (9th Cir. 1968), cert. denied, 393 U.S. 867, 21 L. Ed. 2d 135, 89 S.Ct. 151; Commonwealth v. Brown, 364 Mass. 471, 478-80, 305 N.E.2d 830, 836-37 (1973); State v. Roberts, 86 N.J. Super. 159, 206 A.2d 200 (1965); People v. Mendola, 2 N.Y.2d 270, 159 N.Y.S.2d 473, 140 N.E.2d 353 (1957).
Kennedy v. Cardwell, supra, involved the defendant being tried in shackles and suggested that the Due Process Clause might be implicated. It also cited several historical reasons advanced against shackling which related to the physical pain caused the defendant such that he could not effectively consult with counsel or could not calmly use his faculties.
Most courts prior to Estelle which considered the right of the defendant to be tried free of physical restraints (see note 4 supra) recognized that there might be occasions where courtroom security and order would require it. Illinois v. Allen, 397 U.S. 337, 25 L. Ed. 2d 353, 90 S.Ct. 1057 (1970), recognized that in an extreme situation a disorderly defendant could be tried while bound and gagged. The Court, however, suggested other alternatives, such as removal, and acknowledged that the defendant’s constitutional rights to confrontation and counsel could be affected. Estelle did not cite Illinois v. Allen, but obviously there is some tension between the presumption of innocence theory and the premise that for purposes of security a defendant may be tried in physical restraints.
Obviously the same type of procedural problem exists for the trial court as occurs when witnesses appear in prison attire. Most courts that have addressed the procedural problem recommend that a pretrial hearing be held if voluntary arrangements cannot be made on the use of physical restraints. The purpose of the hearing is to settle the issue in advance of trial so that the court is not suddenly confronted with the witnesses being brought into the courtroom in physical restraints. See, e.g., Kennedy v. Cardwell, supra; Commonwealth v. Brown, supra. The A.B.A. Advisory Committee on the Criminal Trial, Standards Relating to Trial by Jury (Approved Draft 1968), at 96 n. 9, sets forth the following factors that have been considered in determining whether to use physical restraints:
“(1) [TJhe seriousness of the present charge, (2) the person’s character, (3) the person’s past record, (4) past escapes by the person, (5) attempted escapes by the person, (6) evidence the person is planning an escape, (7) threats of harm to others, (8) threats to cause disturbance, (9) evidence the person is bent upon self-destruction, (10) risk of mob violence, (11) risk of attempted revenge by victim’s family, (12) other offenders still at large, * * *” [Citations omitted]
For reasons stated in note 3 supra, we believe it places no undue burden on defendant’s counsel, who is familiar with the status of the defendant and his witnesses, to initiate such hearing. | [
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Haymond, Judge:
This is an appeal by the employer, Hutchinson Coal Company, from an order of the Workmen’s Compensation Appeal Board of June 11, 1949, affirming an order of the State Compensation Commissioner' of February 25, 1949, which awarded the claimant, William Walk, fifty per cent permanent partial disability for an injury which he sustained as an employee of the company on January 29, 1946. Upon the petition of the employer this appeal was granted by this Court on October 3, 1949.
The claimant was injured in the course and as a result of his employment while operating an electric drill in the mine of his employer in Logan County on January 29,1946. An appliance on the machine caught in his clothing and severely lacerated and injured his genitals. The claim was promptly reported and the claimant was hospitalized and treated for his injury. He was discharged from the hospital on May 13, 1946, and returned to his regular work on June 1, 1946. For the period of January 29, 1946, to June 1, 1946, when he resumed his regular work, the claimant was awarded and paid total temporary disability benefits.
The questions presented for decision upon this appeal are: (1) Whether the injury is compensable; and, if so, (2) whether the evidence justifies an award of fifty per cent permanent partial disability. No question is raised with respect to the award and the payment to the claimant of total temporary disability benefits between the date of his injury and the date he resumed work.
The claimant was examined by several doctors and the medical reports show that the injury has resulted in pain to the claimant in the normal use of his sex organs, the permanent loss of the mechanical ability to engage in sexual intercourse, and a psychological condition the ultimate effect of which is presently undetermined with respect to his capacity to work. The medical reports also indicate that the injury, which is permanent except the pain which in time will probably disappear, has resulted in no permanent disability which will prevent, or has prevented, in any substantial degree, the claimant from performing any kind of work.
The evidence produced at hearings held at Logan and Charleston in 1947 and 1948 is brief and consists of a statement of the earnings of the claimant from his regular employment from June 1, 1946, when he resumed his former work, to June 24,1947; a stipulation of facts agreed to by the representative of the claimant and the attorney for the employer; and the testimony of a doctor who examined but did not treat the claimant. The statement shows that the claimant worked regularly upon his return to the same employment after his injury, that he earned $4,538.46 during the period June 1, 1946, to June 24, 1947, or $4,192.92 for one year’s work from June 1, 1946, and indicates that his earning capacity had not been impaired during that time. The stipulation constituted proof that the record of work and earnings by the claimant represented his share of the labor performed by a group of four or five men in loading coal at the mine where he worked as a member of the group; that, because of his injury, the other men with whom he worked performed most of the hard labor; that he is unable to drag rails or do any heavy work, but that he does shovel coal when he is on his knees. The testimony of the doctor was that the claimant, as a result of the injury, had lost the ability to engage in the sexual act but there was no disability with respect to his capacity to work and earn a living. On cross-examination the doctor did not give any positive answer relative to the effect of the injury upon the mental attitude of the claimant. To the only question asked on that subject: “Doctor, does an injury such as he suffered causing such a result as you find have any effect upon his mental attitude?”, the doctor replied: “That is a hard question to answer correctly. Some men it may, others it may not.”
As grounds for reversal of the orders of the Workmen’s Compensation Appeal Board and the State Compensation Commissioner awarding compensation to the claimant, the employer insists that the injury is not compensable but that if it is compensable the award of fifty per cent permanent partial disability is not supported by any evidence disclosed by the record.
In support of the first contention of the employer it is asserted that inasmuch as no loss of earning capacity, present or future, has been established, and the injury is not specifically provided for in any schedule set forth in Code, 23-4-6, the claimant is not entitled to an award of compensation for any permanent disability. Though the principal object of workmen’s compensation statutes is to compensate an injured employee for loss of earning capacity, this Court has said that the purpose of the workmen’s compensation statute of this State is to compensate an employee for impairment of his physical efficiency, Ashworth v. State Compensation Commissioner, 117 W. Va. 73, 183 S. E. 912; and that the language of the statute grants compensation for disability or impairment of the physical efficiency of an employee. Johnson v. State Compensation Commissioner, 109 W. Va. 316, 154 S. E. 766. Though loss or impairment of earning capacity is, of course, an important element in the determination of the compensability of an injury, neither can properly be held to be the sole consideration upon which such compensa-bility depends. In a number of cases this Court has recognized the rule that the right of an injured employee to compensation on a permanent disability basis is not defeated by his return to work and his receipt of wages even though his earnings, after such injury, may equal those previously received by him. See Blosser v. State Compensation Commissioner, 132 W. Va. 112, 51 S. E. 2d 71; Burgess v. State Compensation Commissioner, 121 W. Va. 571, 5 S. E. 2d 804; Gay Coal and Coke Company v. Workmen’s Compensation Commissioner, 121 W. Va. 200, 2 S. E. 2d 265; Johnson v. State Compensation Commissioner, 109 W. Va. 316, 154 S. E. 766.
Compensation is intended to take the place of ability to work and ability to work should always be considered in fixing compensation. Burgess v. State Compensation Commissioner, 121 W. Va. 571, 5 S. E. 2d 804. “The terms ‘disability’ and ‘incapacity’, as used in workmen’s compensation statutes, seem to be regarded as practically synonymous. The term ‘disability’, as so used, ordinarily means loss or impairment of earning power, and has been held not to mean loss of a member. However, as used in some statutes, the word ‘disability’ is not restricted to mere loss of earning power; and the mere fact that an injured workman is employed at the same work and at the same wages as before the injury will not disentitle him to compensation under the act, if his physical efficiency has been substantially impaired.” 58 Am. Jur., Workmen’s Compensation, Section 282. See also 71 C. J. 814; Quillen v. Wichita Gas Company, 128 Kan. 9, 275 P. 1075; Sauvain v. Battelle, 100 Kan. 468, 164 P. 1086; Woodcock v. Dodge Bros., 213 Mich. 233, 181 N. W. 976, 17 A. L. R. 203; Rice v. Denny Roll and Panel Company, 199 N. C. 154, 154 S. E. 69; Burbage v. Lee, 87 N. J. L. 36, 93 A. 859. Receipt of the same or larger wages after his injury does not necessarily defeat the right of an injured employee to compensation under the workmen’s compensation statute of this State. Notwithstanding the receipt of such wages the capacity to earn of the injured workman may be diminished; and under various statutes it has been held that his incapacity is not to be measured solely by the wages or the earnings received by him after his injury. 58 Am. Jur., Workmen’s Compensation, Section 284.
Though the evidence consisting of the medical reports and the testimony of a doctor indicate no impairment of the ability of the claimant to work and earn a living, the evidence in the form of the stipulation is that he can not perform heavy work such as moving rails, which he was able to do before his injury. It also indicates that he is required, in shoveling coal, to assume the irregular posi tion of being on his knees and that he is unable, because of the injury, to work with the same ease and competency with which he worked before he was injured in discharging that task. The effect of the finding of the commissioner in awarding compensation, affirmed by the Workmen’s Compensation Appeal Board, is that the injury sustained by the claimant has substantially impaired his physical efficiency to work.
The appeal board is a fact finding agency and its findings will not be disturbed by this Court unless they are clearly wrong. Burgess v. State Compensation Commissioner, 121 W. Va. 571, 5 S. E. 2d 804; Moore v. Workmen’s Compensation Appeal Board, 118 W. Va. 578, 191 S. E. 292; Rasmus v. Workmen’s Compensation Appeal Board, 117 W. Va. 55, 184 S. E. 250. By numerous decisions of this Court the workmen’s compensation statute of this State must be given a liberal interpretation in order that its beneficent purposes may not be defeated by a strict construction of its terms. Burgess v. State Compensation Commissioner, 121 W. Va. 571, 5 S. E. 2d 804; Martin v. State Compensation Commissioner, 111 W. Va. 420, 162 S. E. 486; Vandall v. State Compensation Commissioner, 110 W. Va. 61, 158 S. E. 499; Bonner v. State Compensation Commissioner, 110 W. Va. 38, 156 S. E. 847; Kincannon v. State Compensation Commissioner, 107 W. Va. 533, 149 S. E. 665; McVey v. Chesapeake and Potomac Telephone Company, 103 W. Va. 519, 138 S. E. 97. In the light of the evidence and the findings of both the commissioner and the appeal board, the physical efficiency of the claimant has been impaired by the injury to the extent that he can not perform his work with the same ease and competency with which he performed it before he was injured or do the same heavy work which he previously was able to do; and the statute, properly construed, applies to his injury and fenders it compensable.
The award of fifty per cent permanent partial disability, however, is not supported by the evidence. There was no attempt to determine or develop any psychological effect of the injury upon the ultimate ability of the claimant to work at his present or any other occupation. It is not entirely unlikely that it will not eventually seriously impair his capacity to work; but the evidence on that feature of the injury and the evidence which establishes the present impairment of his physical efficiency to the extent heretofore indicated and described, with no actual loss, as yet, in his earnings, do not justify an award of compensation on the basis of fifty per cent permanent partial disability. In consequence, the findings with respect to the percentage of disability, under the evidence, are clearly wrong. A finding of the Workmen’s Compensation Appeal Board which, upon the proof taken before the commissioner and acted upon by the board, is plainly wrong, will be set aside by this Court. Miller v. State Compensation Commissioner and McCoy Brothers, 130 W. Va. 771, 45 S. E. 2d 249; Rasmus v. Workmen’s Compensation Appeal Board, 117 W. Va. 55, 184 S. E. 250. As stated in the Miller case, in which an award of twenty five per cent permanent partial disability was set aside as inadequate under the evidence in that proceeding, this Court will not direct or indicate the amount or the percentage of an award which should be made in the first instance by the commissioner upon the evidence produced before him, for the reason that upon a remand of this proceeding different or additional facts may be established.
The order of the appeal board of June 11, 1949, and the order of the commissioner of February 25, 1949, in so far as they hold the injury to be compensable, are affirmed, but to the extent that they award the claimant compensation on the basis of permanent partial disability of fifty per cent they are reversed and set aside; and this proceeding is remanded to the commissioner for further consideration and development, with directions to award the claimant permanent partial disability in such amount or on such percentage basis as may be established and justified by the evidence.
Affirmed in part; reversed in part; remanded with directions. | [
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Browning, Judge:
The petitioners, in these original proceedings in mandamus, seek writs commanding the respondent, Edgar B. Sims, Auditor, to issue warrants for the payment in full of their salaries for the month of October, 1958. Patrick C. Graney is the State Road Commissioner, a public officer of this State whose salary is fixed by statute, and Martha Ford is an employee of the Department of Finance and Administration of West Virginia. These are companion cases and the issues presented will be dealt with in a single opinion. They will be identified herein as the Graney proceeding or the Ford proceeding when necessary. Graney alleges that a requisition in proper form, based on payrolls attached thereto, was submitted to the respondent on October 23, 1958, and Ford avers that a similar requisition was delivered to respondent on October 28, 1958, which requisitions respondent refused to honor as not properly filed.
The petitions were filed in this Court on November 1, 1958, and on November 7, 1958, a rule was issued against respondent in each case, returnable November 18, 1958, requiring him to appear and show cause why writs should not issue against him. The respondent appeared on the last mentioned date and filed his answer in each of the proceedings, to which answers petitioners demurred. Counsel for all parties filed briefs and presented oral arguments on that day.
In both petitions it is alleged that for more than fifteen years the respondent has honored requisitions submitted to him prior to the end of the calendar month, and issued warrants dated on the last day of the month for the payment of salaries of officials and employees for such month under the same laws applicable thereto as are now in force. In the Graney petition it is further alleged that petitioner, being a public officer of the State whose salary is fixed by statute, the payment of his monthly salary is not dependent upon the nature or quantum of the services performed by him. Graney states that he has a clear legal right to the payment of his salary for the month of October, 1958, “at the end of said month, as soon as said month has expired and within thirty-one days of his last monthly installment payment on September 30, 1958.” Ford alleges a similar, right to her salary for the month of October, 1958, “at the end of said month, as soon as said services have been performed, and within thirty-one days of her last monthly installment payment on September - 30, 1958.” In his answers the respondent does not deny the administrative practice of the past fifteen years as alleged by petitioners, but states that he has refused to honor the requisitions for the month of October, 1958, for the reason that petitioners’ salaries were not “justly due” at the time' the requisitions were certified, inasmuch as petitioners had not fully performed the services required of them by law to entitle them to their salaries for the entire month of October. He further states that the requisitions were not honored because the petitioners have failed to comply with a rule promulgated by him on August 11, 1958, which he maintains was made pursuant to authority given him by Chapter 67, Acts of the Legislature, Regular Session, 1943, as amended by Chapter 116, Acts of the Legislature, Regular Session, 1945, which appears in Michie’s Code of West Virginia, 1955, as Section (13a) of Article 3, Chapter 12. Hereinafter it will be referred to as Section (13a). This act authorized the Auditor of the State of West Virginia to deduct and withhold sums from the salaries of State officials and employees “to purchase United States government bonds and other United States government obligations, or to pay taxes as may be required by an act or acts of the congress of the United States of America.” In other words, it provided for the withholding of portions of the salaries of State officials and employees for the purchase by installment payments of United States government securities and for the payment of social security and income taxes. The last paragraph of Section (13a) was not affected by the 1945 Amendment. It reads: “To promote efficiency and economy in making such deductions as provided herein, the auditor is authorized to promulgate rules and regulations and to designate the time for the presentment of the payroll requisitions for state officials and employees and requisitions for other claims against the State: Provided, that all officials and employees shall be paid at least once every thirty-one days. All officials and employees of the State shall comply with the rules and regulations promulgated by the auditor under this section.” This, in so far as pertinent, is the rule promulgated on August 11, effective October 1, 1958, by respondent:
“Payrolls shall not be prepared by any division of the State government for submission to the office of the Department of Finance and Administration until after the last day of a pay period has expired. All payrolls should have the following certificate affixed or written on the transmittal sheet in the following language:
“I hereby certify that the payroll or payrolls attached hereto were prepared in my office on the _day of_, 19_
“The above certificate should be signed in pen and ink by the head of the division.”
This rule of August 11, was preceded by a memorandum, Exhibit B with Respondent’s Answer in the Graney proceeding, dated March 28,1958, which was sent by respondent to all of the departments of the Executive branch of the State government, to which reference is made in the answers of respondent. The comprehensiveness of the rule of August 11, and the reasons for its promulgation necessitates quotation at some length from the memorandum of March 28:
“In order to avoid the necessity of re-deposits, the drafting and submission of supplemental payrolls, corrective monthly payrolls made necessary by reason of death of employees; hiring of new employees; firing of old employees; absence of employees beyond earned time off for sickness, etc.; the pay day of all state divisions should he changed from the last day of the calendar month until the 15th day of the month following. Payrolls should not be prepared in any division until after the pay period has expired. The fiscal offices (Budget office, Auditor’s office and Treasurer’s office) in the Capitol are having difficulty due to the fact that payrolls for a calendar month are prepared by the 18th or 19th day of the month in the payroll office of each division and started through the mill at least ten days in advance of pay day. The time involved is necessary on account of the procedure that must be followed in obtaining payroll checks by pay day.
“The Treasurer’s office distributes the checks to all divisions of the State Government either on the day before or on pay day, which is always the last day of the month. When these checks are received by the division a great many changes have taken place in its personnel that require the re-deposit of a number of employees’ checks; redeposit of social security tax checks and the re-deposit of withholding tax checks; supplemental payroll is then drafted including such changes that have occurred in the staff or personnel in the division since the day the payroll was originally prepared.
“The volume of this particular type of corrective supplemental payrolls has reached the point where it is a large part of the volume of work handled in the fiscal offices. It is believed that by deferring pay day fifteen days, and, requiring that payrolls are not to be processed by the payroll offices until after the last day of the pay period, that we will entirely eliminate this great mass of superflous transactions. * * *
«* * *
“8. Upon the receipt of a properly drafted payroll, certified to as required, the Auditor’s Office will issue payroll warrants for the month of October and subsequent months in the sequence of their receipt. The Treasurer’s Office will do likewise. This will result in a variation in pay day throughout the State Government each month. However, every effort will be made to have pay checks in the payroll department offices by not later than the 15th day of each month.” (Italics supplied.)
On October 16, 1958, another memorandum was sent by respondent to all departments of the Executive branch of the State government, a copy of which is filed with the answer as Exhibit C in the Graney proceeding. It reads:
“TO: Payroll or Accounting Division — Each Department or Division of the State Government
“State Auditor Edgar B. Sims today stated that he has always recognized the right of the heads of the various state departments and institutions to set the pay day for their respective employees, and he will honor requisitions providing for a two weeks pay period for all state governmental agencies as long as such requisitions contain the certification as set forth in his recent order that the payroll covered by said requisition is for ‘services rendered to the State.’
“This makes “a two weeks pay period for all state agencies due at the présent time upon proper presentation of a requisition bearing the certification required by law as the head of any department or institution can now truthfully certify that the ‘services have already been rendered to the State.’ ”
The respondent quoted the provisions of Code, 12-3-13, in his rule or directive of August 11, and urges its per-tinency in these proceedings. It reads: “No money shall be drawn from the treasury to pay the salary of any officer or employee before his services have been rendered.” However, particularly pertinent to the Graney proceedings are the provisions of Code, 6-7-1: “The salary and allowances of all state officers payable out of the state treasury shall be paid in equal monthly installments at the end of each month.”
Although not cited or discussed in briefs of counsel the following provisions of Code, 12-3-10, must be given consideration: “It shall be unlawful for any state officer to issue his requisition on the state auditor in payment of any claim unless an itemized account is filed in the office of the officer issuing the requisition. If the account is for services, it shall show the kind of service, dates when performed and names of persons performing the service; if the account is for materials or supplies, it shall show in detail the kind of material or supplies, the quantity, dates of delivery and to whom delivered; * * * .” (italics supplied.)
The respondent relies upon the language of Section (13a) wherein “the auditor is authorized to promulgate rules and regulations” for authority to promulgate his rule of August 11, relating to the time when the heads of the Executive departments of the State government shall prepare and submit payroll requisitions. It is the contention of petitioners that the authority given the Auditor by this section to promulgate rules is limited to rules pertaining to deductions from the salaries of officials and employees of the State “under this section”, and does not empower him to promulgate a rule fixing the time for the submission of payroll requisitions. They further contend that if this section be construed to give the Auditor such power then the act is invalid as being in contravention of Article VI, Section 30, of the Constitution of this State: “No act hereafter passed, shall embrace more than one object, and that shall be expressed in the title. * * *” The respondent contends that Section (13a) and Code, 6-7-1, are in irreconcilable conflict, therefore, since Section (13a) is the later expression on the subject, the older statute is repealed by implication by the later enactment. The petitioners maintain that they may be reconciled and force should be given to both. These questions will be discussed, but not necessarily in that order.
The title of Chapter 67, Acts of the Legislature, Regular Session, 1943, is in this language: “AN ACT to amend article three, chapter twelve of the code of West Virginia, one thousand nine hundred thirty-one, as last amended, by adding thereto a new section to be designated section thirteen-a, relating to salary deductions allowed by the auditor.” This Court is not concerned with whether the title to this bill is sufficient to meet the test of Article VI, Section 30, of the Constitution of this State with regard to the authority given the Auditor to promulgate rules and regulations “To promote efficiency and economy in making such deductions as provided herein.” The power of the Auditor to fix the time for submission of payroll requisitions is expressed by the specific language of the act. Therefore, it is unnecessary to determine whether respondent has indirect authority to do that which the plain language of the statute gives him direct authority to do. It provides that: “To promote efficiency and economy in making such deductions as provided herein, the Auditor is authorized to promulgate rules and regulations and to designate the time for the presentment of the payroll requisitions for state officials and employees and requisitions for other claims against the State: * * *.” (Italics supplied.) The italicized words are clear and unambiguous. Thus the important question is raised as to whether the provision in the act authorizing the Auditor to designate the time for pre sentment of payroll requisitions is repugnant to Article VI, Section 30, of the Constitution of this State. The “object” of this act was to empower the Auditor of this State to make deductions from the salaries of officials and employees of this State for certain purposes. The power to supervise the time of the filing of payroll requisitions was only a detail of the object stated in the title. The title of the act was such that it should have provoked a reading of the act by a person interested in its subject matter. That is the test of the sufficiency of a title to a statute. City of Wheeling, etc. v. American Casualty Co., 131 W. Va. 584, 48 S. E. 2d. 404; State ex rel. Dyer v. Sims, 134 W. Va. 278, 58 S. E. 2d. 766. It is the duty of the courts, in considering whether the object of the act is expressed in the title, “to lean in favor of” sustaining the validity of the act, and to declare its validity, unless its unconstitutionality is established, and made manifest and clear beyond all reasonable doubt. Chesapeake, etc. R. Co. v. Patton, 9 W. Va. 648. “Auxiliary objects” may be included in the act without being expressed in the title. Casto v. Upshur County High School Board, 94 W. Va. 513, 119 S. E. 470; City of Wheeling, etc. v. American Casualty Co., supra. The act, in so far as it authorizes the Auditor “to designate the time for the presentment of the payroll requisitions for state officials and employees”, is valid. The issue of the validity of the provision relating to “requisitions for other claims against the State” is not before this Court in these proceedings.
“All statutes in pari materia should be read and construed together, as if they formed parts of the same statute and were enacted at the same time, and where there is a discrepancy or disagreement among them such interpretation should be given as that all may, if possible, stand together.” 17 M.J., Statutes, §40. Many decisions of this Court are cited in support of this statement. . The provisions in Section (13a) “Provided, that all officials and employees shall be paid at least once every thirty-one days.”, and Code, 6-7-1, relate to the same subject matter, and are not in substance inconsistent with each other. Therefore, they are in pari materia. The rule that the repeal of a statute by implication is not favored by the courts, and the presumption is against the intention to repeal where express terms are not used is too elementary for the citation of authority in support of it. We are of the view that both of these statutes and the other provisions of Section (13a), giving the Auditor authority to designate the time for the presentment of a payroll requisition, were intended by the Legislature to operate in harmony, and not in contravention of the general subject matter to which they were directed. Therefore, there is a limitation imposed upon the power of the Auditor to fix the time for the submission to him of payroll requisitions. Not only must officials and employees of the State, who are not compensated by hourly wages, be paid at least once every thirty-one days, they must be paid on or about “the end of each month.” Officials, and particularly employees of the State, like persons employed in private industry, have financial obligations that must be met about the first of every month. While the pleadings in these proceedings do not show the number of officials and employees of this State who are compensated for their services by monthly checks, the members of the Legislature are aware of the approximate number each year when it passes the budget bill, and this Court may take judicial notice of all Acts of the Legislature and thereby obtain the same information. That number is such that it is not possible for the fiscal officers of the several departments of the State government to prepare payroll requisitions on the last day of the month, to have them processed by the Department of Finance and Administration, to send them to the Auditor for the issuing of warrants, to deliver the warrants to the Treasurer of the State where they are converted into checks, to send the checks to the proper departments and to deliver them to the payee at the precise end of the month.
Code, 2-2-4, provides that: “In a statute the word ‘month’ shall mean a calendar month, and the word ‘year’ a calendar year; * * However, in Phillips v. Com mercial Credit Co., 121 W. Va. 234, 3 S. E. 2d. 836, it was held that: “Unless the contrary appears from the context of a statute or contract, wherein reference is made to months, a month is to be deemed a calendar month. * * * ” In view of the consummate respect that this Court has for the legislative branch of the government of this State, we ascribe to it the legislative intention to authorize deductions from the salaries of officials and employees of the State by enacting Section (13a) without working a manifest injustice upon the Auditor and the employees of his office, or the person who receives monthly salary checks from the State. By giving the Auditor the authority to designate the time for the presentment of payroll requisitions, it imposed upon him the responsibility of guarding against the violation of the applicable statutory provisions, and the duty of fixing the time for the different departments of the State government to submit payroll requisitions so that officials and employees shall be paid at least once every thirty-one days on or about the end of each calendar month though not necessarily for services rendered for a calendar month.
It is obvious when the applicable statutes are read together that it was not the intention of the Legislature, by the provisions of Section (13a), to give the respondent authority to delay payment to officials and employees of the State government for services rendered during the month of October until the 15th day of November, as indicated by his memorandum of March 28, 1958. From the following allegation in his verified answer, it would appear that respondent found it unnecessary to attempt to promulgate such a regulation: “Respondent avers that in past years two days constituted the normal processing period for payroll requisitions; however, under the new procedure the processing period may be considerably less, perhaps only a day, due to the priority now given to payroll requisitions.”
Mandamus is an extraordinary remedy by which a petitioner may enforce a clear legal right, but the right must exist when the proceeding is instituted. It cannot be established in the proceeding itself; the proceeding is merely the vehicle by which it is enforced. The rights which petitioners allege in these cases could come only from the Legislature. Under the division of powers provision of the Constitution of this State, the authority to make a law is within the exclusive province of the legislative branch of the government. This Court exists and functions as a part of the judicial branch of the government, and is empowered to construe and interpret the law, but not to enact it. If any of the parties to these proceedings are aggrieved by the applicable statutes, relief can come only from the Legislature.
The petitioners having failed to show a clear legal right to the relief prayed for, the writs will, therefore, be denied and the rules heretofore issued in these proceedings will be discharged.
Writs denied: | [
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JOHNSON, Judge,
announced the opinion of the Court.
The first question presented is: Could tbe widow of the testator in her own right prosecute this appeal ? The widow had no right to contest her husband’s will, for she was not bound by it. She might have had her statutory dower and her statutory share of his personal estate, if she did not like the will; and she must leave it to her husband’s heirs to dispute the will. She had the power to renounce the will, and so far as it affected her rights her will was stronger than his, and as to her rights she might have set it aside by a simple election. McMasters v. Blair, 29 Pa. St. 298. She elected not to renounce the will, as she might have done, and therefore she in her own right was only interested in sustaining the will. .But her children, who were the heirs, who would have taken the entire property after the widow’s share was taken out, had the undoubted right by their mother as next friend to take the appeal from probate, and if they could, prevent the probate of the will; and that the widow in her own right was improperly joined with them in the appeal, in no wise affects their rights. The appeal as to the widow might properly by the circuit court have been dismissed, and that dismissal could not affect the rights of the infants by their mother their next friend, in the appeal.
This disposition of the right of the widow to take the appeal will assist us in deciding, whether her evidence as to conversations had with her husband were improperly admitted in evidence. There was certainly nothing in the communications themselves of such a confidential character, as would make them improper evidence at common law. White v. Perry, 14 W. Va. 66. One of the communications had, which will show their character was: “ He asked me to put him into another room on the opposite side of the hall.” The conversations were not ex'cluded by the statutes. Section 23, chapter 130 of the Code among other things declares, that “a party shall not be examined in his own behalf in respect to any transaction' or communications had personally with a deceased person, against parties, who are the executors, administrators, heirs at law, or next of kin, or assignees of such deceased person, where they have acquired title to the cause of action from or through such deceased person, or have been sued as such executors, administrators, heirs at law, next of kin, or assignees.” The italics are mine. The statute had with certain restrictions taken away the obstacle to a party testifying, where he was interested in the subject, upon which he was called to testify.
Syllabus 4.
syllabus s.
It has been held in New Tork upon the construction of a statute similar to ours, that the devisees of real estate are the assignees of the testator within the meaning of their statute, and we think properly so; and therefore the devisees of the real estate under the will of Shepherd McMeehen are the assignees of said Shepherd McMeehen within the meaning of section 23, chapter 130 of our Code. Buck v. Staunton, 51 N. Y. 624; Cornell v. Cornell, 12 Hun. 314.
Mrs. McMeehen was testifying against some of the devisees under the will. But, to exclude her evidence of conversations with her husband, her evidence must not only be against such devisees, but must be in her own behalf. The object of the exceptions to the statute permitting interested witnesses to give evidence was to prevent false swearing and its consequences to .other parties interested in the suit; and it was supposed, that this object would be obtained by preventing the witness from swearing in his own interest or behalf, wbicb is the same thing. The witness by the statute in such a case is not prevented from giving evidence against his interest.
Syllabus 6.
Syllabus 7.
Mrs. McMechen declining to renounce the will, moving for the appointment of an administrator with the will annexed, and the will itself providing so liberally for her, as the evidence shows, convinces my mind, that it was her individual interest to have the will sustained; her evidence therefore was not in her. own behalf, but against her interest. It is no answer to say that her evidence was in favor of her children. That is not prohibited by the statute, but expressly allowed, notwithstanding the witness may be interested in the suit. This is not one of those cases, where a party may choose his side of the controversy. Mrs. McMechen, as we have seen,,could not contest the will of her husband, and she was not therefore at liberty to choose her side. She had elected by failing to renounce the will to be a devisee thereunder; and while she had an interest in the will, by her own choice that interest was in favor of and not against the will; and she ought therefore to have been made an appellee. But her being made so would not compel her to use any exertion to sustain the will. She could, as the next friend of her children carry on the appeal in their name even against herself, and as we have seen, her evidence being against the will is competent.
Should the testimony of the medical expert, Dr. G. W. Bruce, have been excluded ? The bill of exceptions raising this question shows, that Dr. Bruce was a graduate of a medical college and had been a practicing physician for over twenty-five years. It seems, that he did not hear the testimony pf the witnesses at the trial, but that he had heard Dr. Frissell’s evidence read, and that of Dr. Ford. After testifying in a general way as a medical expert with regard to the effect of physical disease upon the mind, &c., the following question was propounded to him : “ Please state, whether in your opinion a person, who was suffering, as Mr. McMechen was, as testified to by —-wbo was conditioned as Mr. McMechen was, as testified to by Doctors Ford apd Frissell and Carter McMechen, and who was cold to the elbows and knees at five o’clock and at e,leven o’clock, and who died at or about five o’clock of the same night, whether he would be physically able to write his name or not ?” To which question the witness answered as follows : “ I believe it was testified here, that he was cold at five o’clock in the afternoon — testified by Dr. Ford — and at eleven o’clock — by Dr. Frissell, and at five o’clock in the morning died. You asked me the question, if a short time before he died he would be able to — ” and the counsel for contestants then interrupting the witness said : “ No I ask this question ! ‘If a person in the condition he was at these two times, as testified by these two medical gentlemen, and who was cold to the elbows, and cold to the knees, and did die at about five o’clock, would be physically capable of writing his name twenty or thirty minutes before his death ?’ ” The answer is: “ It is not likely that he would have been able to have done it.”
Dr. Bruce was asked also the following question: “Please state if a person conditioned as Mr. McMechen was on the night of his death, and who was, as testified to by Dr. Frissell, when he visited him’at eleven o’clock, practically dying, and who did die at or about five o’clock that same night, whether or not in your opinion he would be mentally capable of transacting important business twenty or thirty minutes before he died?” The answer to this question is as follows: “It is presumed here, that I heard Dr. Ford’s testimony. I have heard it, and I shape my answer in accordance. Taking into consideration Dr. Ford’s evidence to the effect, that he was in such a condition at five o’clock, and Dr. Fris-sell at ten or eleven o’clock, 1 would say, that he was not mentally capable of transacting important business. I refer particularly and attach a great deal of consequence to what Dr. Ford said on the subject of his being in that comatose condition — that is, in the absence of its being from the effects of opium.”
Syllabus 7.
There seems to be no conflict of authorities on the law applicable to the testimony of medical experts. The law bearing upon the precise question we are now considering may be thus correctly stated : When a medical expert is asked to give his professional opinion to a jury not upon matters within his own knowledge but upon a hypothetical case founded upon the testimony of witnesses previously examined in the case, the questions to him must be so shaped, as to give him no occasion to mentally draw his own conclusions from the whole evidence or a part thereof, and from the conclusion so drawn express his opinion, or to decide as to the weight of evidence or the credibility of witnesses; and his answers must be such, as not to involve any such conclusions so drawn, or any opinion of the expert, as to the weight of the evidence or credibility of the witnesses. Butler v. St. Louis Life Insurance Co., 45 Ia. 93; State v. Bowman, 78 N. C. 509; Livingston’s Case, 14 Gratt. 592; Cincinnati Insurance Co. v. May, 20 Ohio 223; Commonwealth v. Rogers, 7 Met. 505; Woodbury v. Obear, 7 Gray 471; The People v. Lake, 12 N. Y. 362; Reynolds v. Robinson, 64 N. Y. 395; Carpenter v. Blake, 2 Lans. 206; Fairchild v. Bascomb, 35 Vt. 398; Spear v. Richardson, 37 N. H. 23.
Ip State v. Bowman, the first question propounded to the expert was : “ Have you heard the statements of the witnesses, as to the circumstances immediately preceding her being taken sick, the appearance of the body immediately after death, its appearance subsequent and before interment, the condition of her limbs and members, the account given by the deceased of her manner of death, her asking to have her feet uncrossed, and the manner in which she gripped him and her child, and have you heard the testimony of Mr. Kedd, as to his analysis and its results, and from them can you as a physician form an opinion as to tbe cause of her death?” The witness answered, “ Yes.”
Syllabus 8
“ In giving answer do you exclude from your consideration the evidence of other circumstances in the nature of moral evidence in the case?” The witness answered, “ I do.”
“ What in your opinion was the cause of her death ? ” The witness answered, “ I believe it was stricbnine.”
It was held by the court, that the evidence was improper, as it invaded the province of the jury in drawing their own conclusions from the testimony, of the credibility of which they alone must judge.
In Woodbury v. Obear, Shaw, Chief Justice, said : “We think the question put to Dr. Williams as an expert, asking his opinion, whether having heard the evidence he was or was not of opinion, that the testator was of sound mind, was not admissible in that form. This would be especially irregular, where the evidence is conflicting, because it puts it in the power of the expert to give an opinion upon the credibility of the testimony, and the truth of the facts, which is purely a question for the jury, and then upon the value and efficacy of the facts and circumstances in his opinion thus proved upon the question of soundness of mind. We think the question as modified by the court and then admitted was correct, to put the case hypothetically, as thus, ‘ If certain facts assumed by the question to be established by the evidence should be found true by the jury, what would be his opinion upon the facts thus found true on the question of soundness of mind?’”
The first question propounded to the expert is manifestly improper, because it required the witness to draw his own conclusions as to how Mr. MeMeehen was suffering, as testified to by-, how he was conditioned as testified to by Drs. Ford, Frizzell and Carter Mc-Mechen. The jury are not informed in the question of the basis, upon which the expert is asked to express his opinion. The expert is left to draw his own conclu sions from the evidence of certain witnesses, whose evidence is not stated to him, nor the conclusion of fact from the evidence by the counsel and put hypothetically in the question of the extent of the suffering of, or the condition of Mr. McMechen at the time supposed. The expert in his attempted answer, which was interrupted, undertook to state the supposed condition, but counsel for contestants interrupted him, and said, “ No I ask this question': If a person in the condition he was at these two times, as testified.by those two medical gentlemen, and who was cold to the elbows and cold to the knees and did die about five o’clock, would be physically capable of writing his name twenty or thirty minutes before his death ?” To which he answered : “It is not likely, that he would have been able to have done it.” The counsel was not content with asking the expert the question, which would not have been objectionable, “ If a person who was at five o’clock and eleven o’clock cold to the elbows and knees, and who died at five o’clock the next morning, would be physically capable of writing his name twenty or thirty minutes before his death ?” but in addition to this he asks, “ if a person in the condition he was at these two times, as testified to by these two medical gentlemen, and who was cold,” &c. In what condition ? What did these two gentlemen testify was his condition at these two times ? It is left for the medical expert, to draw his own conclusions from the testimony of “ these two medical gentlemen,” as to what was the testator’s condition at these two times, and holding it in his mind to form his opinion and express it upon the condition oí the testator ■ thus ascertained, when neither the jury nor the court know or can know what that basis was.
It is for the jury to find what the testator’s condition was at these two times, and not for the witness. The counsel might in his question, or the expert in his an^ swer might, have assumed from any evidence in the case, what that condition was, and assuming it to be true might have asked the expert for, or he might have given his opinion on that assumed state of facts; and then the jury would have known, upon what he based his opinion ; but here they could not know, every individual juror might form an opinion from the testimony of the two witnesses, as to what the condition of the testator was at the specified times, and they might all differ from each other, and each differ from the expert, and yet each of them might suppose, that the expert understood from the evidence of “ the two medical gentlemen,” the condition to be the same he understood it to be. This will not do. It is just as unreasonable, as to ask an expert, who has heard all the evidence, “from the evidence, in your opinion was the testator sane or not, when the will was executed ?”
The same objection exists to the last question propounded to the expert and to the answer given thereto. In the answer to the last question, w'hich did not mention Dr. Ford’s name, the expert says: “It is presumed here, that I heard Dr. Ford’s testimony.” How was it presumed? He evidently thought, that he was not confined in the question to Dr. Frissell’s evidence, as that would not permit him perhaps to give an answer satisfactory even to himself, and he therefore bases his answer partly on Dr. Ford’s testimony,' which is not slated, and of which the expert says: “I refer particularly and attach a great deal of consequence to what Dr. Ford said on the subject of his being in a comatose condition, that is, in the absence of its being from the effect of opium.” Here again it is impossible to tell, upon what assumed state of facts the expert gave his opinions. He was permitted by the question, to gather from the evidence without stating it, “the condition” of Mr. McMeehen on the night of his death. The opinion of the medical expert founded on testimony already in the case, can only be given upon a hypothetical case, and not on every hypothetical case even. The hypothesis must be clearly stated, so that the jury may know with certainty, upon precisely what state of assumed facts the expert bases his opinion.
The testimony of the expert, ought to have been rejected; and the court erred in admitting it.
It is insisted by counsel for proponents, that the court erred in giving to the jury at the instance of contestants instructions, numbers one, five, six, seven and eight, and in modifying instructions, numbers fifteen and sixteen, asked by proponents. Instruction number one is as follows:
“The jury is instructed, that the burden is on the proponents of the will in question, to prove the due execution thereof, and that the same is the last will of a free and capable testator.”
It seems to be conceded in the argument of counsel for proponents, that the burden is on the proponents of the will to prove, that it was the will of a capable or competent testator; but it is denied, that the burden is on them to prove, that it is the will of a free testator. The word free as used in the instruction must be understood to mean, that no fraud was practiced on the testator, and no undue influence was exercised to induce him to execute the will.
In Dean v. Heirs of Dean, 27 Vt. 746, there was an appeal from a decree admitting a will to probate. The court in its opinion says: “ It is also insisted, that no testimony appears in the case, showing that the will was ever published by the testator, or that he was of sound and disposing mind at the time of its execution. That the testator was of a sound and disposing mind is a legal presumption. It is for those who object to the will to show such an incapacity, if it exist.”
Perkins v. Perkins, 39 N. H. 163, was an appeal from the decision of the judge of probate disallowing a will. The court held, that “ every man is presumed to be of sane mind, until the contrary is proved. In the proof of a will the presumption of sanity is sufficient to support the will, till some evidence to the contrary is of fered.” To the same effect is Zimmerman v. Zimmerman, 23 Pa. St. 375. But these authorities do not state the correct rule. At common law a man could not make a will. But by the English statute, 32 Hen. VIII, persons might dispose of their property by will. There was nothing in this statute to change the rule of the common law as to the legal presumption, that a man is ot sound mind, until the contrary appears. But a few years after the statute of 34 and 35 Hen. VIII was passed, and ch. 5, sec. 14 of that statute provides, that “ wills, &c., made, &o., by any person de non sane memory shall not be taken to be good or effectual in law.” The effect of this statute was, in the proof of a will not only to require that it was executed as the statute required, but that at the time of its execution the testator was sane. And so the English courts seem to have regarded it. Harris v. Ingledew, 3 P. Wms. 91; Willis v. Hodgeson, 2 Atk. 56. In this case Lord Hardwick said : “ It had been determined over and over in this court, that you must show the person to be of sound and disposing mind, where a will is to be established as to real estate, and especially if there are infants in the case ; proving it to be well executed according to the statute of frauds and perjuries is not sufficient.” See also Barry v. Butlin, 1 Curt. 637, in which Baron Parke said : “ The strict meaning of the term ‘ onus probandi’ is this, that if no evidence is given by the party, on whom the burden is'east, the issue must be found against him. In all cases this onus is imposed on the party propounding a will. It is in general discharged by the proof of capacity, and the fact of execution.”
Syllabus 9
syllabus 10.
The effect therefore of the English statute requiring, that a man could not execute a will, unless he was of sound mind, was in that case to take away the common law presumption of sanity, and throw the burden of proof upon the propounder of the will, not only to show the due execution of the will, but the additional fact, that at the time of the execution the testator was of sound mind.
The statutes of wills of all the States, so far as I know, declare, that the testator must be of sound mind, before he can make a will. This is the Massachusetts statute, which is similar to ours, and Thomas, Judge, in Crowningshield v. Crowningshield, 2 Gray 527, said : “ When therefore a will is offered for probate, to establish it, to entitle it to such probate, it must be shown, that the supposed testator had the requisite legal capacities to make the will, to wit, that he was of full age and of sound mind” (these being statutory requirements) “and that in the making of it the requisite formalities have been observed. The heirs at law rest securely upon the statutes of descents and distribution, until some legal act has been done, by which their rights under the statutes have been lost or impaired. Upon whom then is the affirmative? The party offering the will for probate says in effect: ‘ This instrument was executed with the requisite formalities by one of full age and of sound mindand he must prove it; and this is to be done by showing not merely, that the instrument was in writing, that it bears the signature of the deceased, and that it was attested in hi-s presence by these witnesses; but also that it was signed by one capable of being a testator, one to whom the law had given the right of making disposition of his property by will.”
The current of the American authorities is in accord with the case last cited, and the rule is, that when a will is propounded for probate, the burden is on the pro-pounder to prove, that the will was duly executed according to the requirements of the statute, and that at the time of the execution thereof the testator was of sound mind and authorized under the statute to make a will. Cilley v. Cilley, 34 Me. 162; Comstock et al. v. Hadlyme, 8 Conn. 254; Robinson v. Adams, 62 Me. 369; Delafield v. Parish, 25 N. Y. 9; Hawkins v. Grimes, 13 B. Mon. 257; Evans v. Arnold, 52 Ga. 169; Taff v. Hosmer, 14 Mich. 309.
The reason of the rule of law, as laid down in the foregoing authorities, is that the heir at law ought not to be disinherited without every requirement of the statute having been complied with. Wills are often admitted to probate in common form, no one is present except the proponnder and the subscribing witnesses ; and it seems to me to be a salutary rule to require proof, before the heir is to be disinherited, that not only were all the forms of law observed in the execution of the will, but that the testator was authorized by statute to execute the will and was of sound mind. Wills are often made by persons in extremis, and it is but right, that proper safeguauds should be thrown around a testator under such circumstances. But while the burden is on the propounder of the will to prove what we have stated,it does not follow, that the burden is on him to prove, that the will was executed by a free testator. The burden of proof of fraud or undue influence exercised to induce a testator to execute a will, is on him, who alleges it; it is not on the propounder of the will. And the rule laid down to the contrary in Riddell et al. v. Johnson’s ex’r et al., 26 Gratt., and in Evans v. Arnold et als., 52 Ga. 169, is not the law. In the case of Riddell et al. v. Johnson’s ex’r there is some reason for the language used by Judge Anderson in delivering the opinion of the court, because he must be understood, as laying down the rule in reference to the circumstances of that case. In that case it appeared, that the scrivener, who wrote the will, took a benefit under it. But in the Georgia case there was no such fact, and it seems to me, there is not the slightest warrant in the uniform current of authorities for such a broad rule as is adopted in that case. The courts in both cases seem to have been misled by the rule laid down by Baron Parke in Barry v. Butlin, 1 Curt. 637. But Baron Parke is there discussing a case, in which the party, who wrote the will, took a benefit under it, and his language must be understood as applying to such a case. In the long list of anthorities I have cited it never seems to have occurred to the courts, that the bur den of proof was on the propounder of a will to show that .the testator was free from fraud or undue influence, when the will was executed. The very reason, which places the burden on the propóunder to show, that the will was executed by a competent testator, excludes the idea, that it is on him to show, that it was the will of a free testator. The only reason, why the burden is on him in the one case, is, because the statute requires certain prerequisites to a val id will, which must be shown prima facie by the propounder of the will; that the testator was free when he executed the will is not among them. Of course the common law, before it would hold the heir bound by the will, would require that the will like any other instrument should not have been procured by unfair means. But the common law presumes that all men are honest and demean themselves properly, until the contrary appears, and therefore he, who would allege that a will or other instrument was procured by fraud or other unfair means, must prove it; the burden is on him to show it. But. in the interest of the heir, who but for the will would inherit the property, the statute requires, that it shall appear, that the testator was competent to execute the will. The statute in this particular shifts the presumption from where the common law laid it; but it does not touch the .presumptiop, that all men are honest, but leaves it in the cases of the execution of wills as in other cases, where it was at common law. The instruction did not therefore propound the law correctly.
Syl,abus 11'
The instruction was erroneous for another reason ; it was inconsistent with instruction number twelve, given at the instance of the proponents. That instruction is as follows: “ Fraud or undue influence in the procurement of a will is not to be presumed, but the burden of the proof lies upon the party, who alleges it, to establish the same by evidence. It is not required, that there be direct and positive proof of such fraud or undue influence, but it may be deduced from the established facts and circuniT stances of a given case. At the same time it will not be inferred from opportunity and interest merely on the part of those, to whom the fraud or undue influence may be attributed.”
„ „ ,
1S_
It is error to give inconsistent instructions to the jury, for it is calculated to confuse and mislead them ; it leaves the jury at liberty to decide according to the correct rule of law or the contrary, and renders it impossible for the court to determine, upon what legal principle the verdict was founded. Illinois Central Railroad Co. v. Moffit, 67 Ill. 431; Kingen v. State, 45 Ind. 518; Clay v. Miller, 3 T. B. Mon. 146; Sears v. Lay, 19 Wis. 96; Imhoff v. Chicago, &c., R. Co., 20 Wis. 344; Southern R. Co. v. Hudrick, 40 Miss. 374; Va. Central R. Co. v. Sanger, 15 Gratt. 231; Pendleton Street R. Co. v. Stallman, 22 Ohio St. 2; Pound v. Turk, 5 Otto 461.
It appears in evidence in this ease, that J. II. Good, a nephew of the testator, wrote the will in question, that a bequest was made therein to his infant children. The rule as to this matter, we think, is correctly stated by Baron Parke in Barry v. Butlin, supra, that if a party writes or prepares a will, under which he takes a benefit, that is a circumstance, which ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favor of which it ought not to pronounce, unless the suspicion is removed.
In discussing the subject Baron Parke says : “ If it is intended to be stated as a rule of law, that in every case, in which the party preparing the will derives a benefit under it, the onus probandi is shifted, and that not only a certain measure but a particular species oí proof is therefore required from the party propounding the will, we feel bound to say that we conceive the doctrine to be incorrect. The strict meaning of the term ‘onus probandi’ is this, that if no evidence is given by the party, on whom the burden is cast, the issue must be found against him. In all cases this onus is imposed on the party propounding a will; it is in general discharged by proof of capacity and the fact of execution; from which the knowledge of, and assent to, the contents oi the instrument are assumed, and it cannot be, that the simple fact of the party, who prepared the will, being himself a legatee, is in every case and under all circumstances to create a contrary presumption, and to call upon the c'ourt to pronounce against the will, unless additional evidence is produced to prove the knowledge of its contents by the deceased. A single instance of not unfrequent occurrence will test the truth of this proposition : a man of acknowledged consequence and habits of business worth £100.000, leaves the bulk of his property to his family, and a legacy of £50.00 to his confidential attorney, who prepared the will, would this fact throw the burden of proof of actual cognizance by the testator of the contents of the will on the party propounding it, so that if such proof were not supplied, the will would be pronounced against ? The answer is obvious, it would not. All that, can be truly said is, that if a person, whether attorney or not, prepares a will with a legacy to himself, it is at most a suspicious circumstance of more or less weight according to the facts of each particular case; in some of no weight at all, as in the case suggested, varying according to circumstances, for instance, the quantum of the legacy, and the proportion it has to the property disposed of, and numerous other contingencies ; but in no case amounting to more than a circumstance of suspicion demanding the vigilant care and circumspection of the court in investigating the case, and calling upon it not to grant probate without full and entire satisfaction, that the instrument did express the real intentions of the deceased.”
From this examination of Baron Parke’s opinion it is manifest, that he unadvisedly used the word free in the first rule he laid down, as it is inconsistent with his whole opinion.
In Drake’s Appeal from probate, 45 Conn. 1, it ap_ ■peared, that a testator having an estate of $14,000.00 with no family made a will five days before his death and while suffering from severe disease, by which will after giving two of his brothers $1,000.00 each, $1,000.00 to certain other relatives and $1,000.00 to a friend, be gave the residue of his estate to a church in the town where he lived. It appeared, that the will was drawn by H., who was a vestryman of the church, and who was also made sole executor; that three brothers and a sister of the testator lived within a few miles of him, and were not notified of his being dangerously ill, until shortly before his death, and after the will was executed; that H. was deeply interested in the welfare of the church, and a liberal contributor to its support; that he and another vestryman were two of the witnesses to the will, and a brother-in-law of H. was the third witness; and that the will described certain half nephews and a half niece of the testator, as his brothers and sister. It was held, that the circumstances were such as to create a suspicion of undue influence, which might be considered by the jury without any direct proof of such influence, and such as to require explanation on the part of the persons propounding the will.
Notwithstanding the fact, that the infant children of Mr. Good took a benefit under the will, yet that fact might be explained, and if it appeared, that the amount received by them was small in proportion to the testator’s property, that Mr. Good himself was a nephew of the testator, that he had not been with his uncle during his sickness, until he answered the summons to be present on the night of the death of the testator, that he was not then with him alone, and that he declined a legacy to himself and made no request, that one should be left to his children, the jury might well consider, that such facts and circumstances would fully meet any suspicion, that might be raised by the fact, that he prepared the will, and his infant children took a benefit under it.
Syllabus 14.
Syllabus 15.
Did-the court err in modifying proponents’ instructions numbers fifteen and sixteen ?• Instruction number fifteen is as follows: “If after the writing offered for probate was written by the draughtsman, the signature 'Shepherd McMechen,’ which appears at the end of said writing, was put there by said Shepherd McMechen himself, or by another person in the presence of the said Shepherd McMechen, and with his knowledge and assent, and the intention on his part that the said writing should be his will, then it is wholly immaterial, that said signature was written in full instead of being abbreviated in the usual manner, in which he may have been in the habit of writing it.” The court refused to give to the jury the said instruction as moved for by proponents, but modified the same by adding at the end thereof the following: “ But it is proper for the jury to consider all the evidence including the mode of spelling the name, in determining whether it was intended by the testator to be his signature to said paper.”
It is true, as contended for by the counsel for proponents, that it is improper for a court in instructing a jury to single out certain facts and instruct the jury, that if they are true, they should find for either of the parties in accordance with such facts, when there are other facts in the case bearing upon the subject. Fine v. St. Louis, &c., 39 Mo. 67; McCortney v. McMullen, 38 Ill. 240. The jury should consider all the evidence bearing upon the particular subject, upon which the instruction was asked. What was that subject in this case to which the instruction related ? Whether the testator, at the time the signature to his will was affixed, was conscious of what he was doing; whether the signature was written by a conscious testator himself, or by another for him in accordance with his instruction. The court is asked to charge the jury, that if he wrote the signature himself, or if it was written by another in his presence with his knowledge and assent and the intention on his part, that the writing, to which it was affixed, should be his will, it was wholly immaterial, that it was written in full, or abbreviated as he was in the babit of writing it.
Syllabus 17.
It is proved in the case, that the usual mode, in which the testator wrote his name, was “ Shep’d McMechen,” and the signature to the will is “ Shepherd McMechen.” There was much testimony before the jury as to his mental Und physical condition, at the time the will was prepared and during that night both before and after. It was contended on the one hand, that his mind was clear, until after the subscribing witnesses attested the will, and that after that time he lived twenty or thirty minutes, and though his hand was steadied by another, yet he wrote the signature himself, and afterwards distinctly acknowledged it; and there was evidence tending to prove all this. On the other hand it was contended, that the testator was in a dying condition, when the will was executed; that the signature was not the act of the testator at all, but of another, who held his hand and wrote the signature for him; that at the time the testator was unconscious of anything that was being done ; and that he did not acknowledge the signature to be his; and there was evidence tending to prove this state of facts also.
Under these circumstances it was peculiarly the provence of the jury to determine, what the real fact was, and whether the making of the will was the act of a competent testator, whether he had consciousness at the time, and whether he was in such a condition as to know and understand what was being done. Every circumstance, that tended to throw any light upon these questions, it was proper for the jury to consider including the mode of spelling the name. Whatever light, be it little or much, that circumstance might- shed upon the question of his mental capacity at that critical time, the jury were entitled to have.
It is true, that if one having testamentary capacity, is unable from any physical cause to write his name to his will, another person may steady his hand and aid him in so doing, and it is not necessary to prove an express request from the testator for such assistance; it may be inferred from the circumstances of the case. Vandraff et al. v. Rinehart, 29 Pa. St. 232. But upon the question of testamentary capacity, if the name thus signed is written differently from the testator’s usual mode of writing it, that is a circumstance proper to" be considered by the jury.
Syllabus 18.
The court properly modified the instruction, as without such modification it was calculated to mislead the julT-
The sixteenth instruction for proponents was : “.It is not necessary, that the subscribing witnesses to a will should see the testator sign, or that he should acknowledge to them the subscription of his name to be his signature, or even that the instrument is his will. If the testamentary capacity exist at the time, it is enough, that he should acknowledge in their presence, that the act was his, he having at the time a knowledge of the contents of the instrument and the design, that it should be the testamentary disposition of his property. If the jury believe from the evidence, that the paper-writing here offered for probate was subscribed by Shepherd Mc-Mechen himself, and that such acknowledgment of said paper-writing was made by him, the jury are instructed, that such an acknowledgment is a recognition and ratification of his signature. If the jury believe from the evidence, that the name of Shepherd McMechen was subscribed to said paper-writing by another, ^nd that such an acknowledgment of said paper-writing was made by said Shepherd, the jury are instructed, that such acknowledgment is a recognition and ratification of the signature, as having been made for him, in his presence and by his direction; and in that state of facts, it is wholly immaterial, that said signature was written in full instead of being abbreviated in the usual manner, in which said Shepherd may have been in the habit of writing it.”
Syllabus 16.
The court refused to give the iustruction as asked,but modified it as follows: “But in considering the question of ratification the jury are to consider all the evidence in the cause relating thereto, including the mode of spelling the signature.”
All we have “kaid in considering instruction number fifteen with the modification applies to this : Did he ratify the signature? In this question is involved his mental capacity; and we think the jury would be in danger of being misled by the instruction without the modification, as it might induce them to believe that on the question of “ ratification,” which was put to them, the circumstance of the signature being written in a different manner from his usual mode of writing it should have no weight with the jury ; when it should have just such weight and no more as a jury would under the circumstances give to it. We think the court did not err in modifying this instruction.
The proponents excepted to the giving of instruction number seven, asked by contestants, which is : “That if the jury shall find from the evidence, that the paper-writing of October 24, 1874, here offered for probate was signed by Shepherd McMechen himself or by some other person in his presence and by his direction, in the presence of the attesting witnesses to said paper-writing, and was then and there shortly afterwards acknowledged by said Shepherd McMechen before said attesting witnesses as his last will, such acknowledgment made as aforesaid is not required by law, and does not add to the legal validity of said paper-writing as a will.”
For what purpose did the contestants ask this instruction ? As an abstract legal proposition it is undoubtedly correct; but it seems inappropriate in this case. The contest was, whether at the time of the signing of the will and of the acknowledgment of the signa■ture, if both were done, Shepherd McMechen, the testator, was of sound mind and conscious of what he was doing. On this question the jury certainly had the right to con sider tbe acknowledgment of the signature, as well as .the signing thereof; and it seems to me, that the'instruction as given was calculated to mislead them by withdrawing their minds from the true issue in the case and by inducing them to direct their attention more to the signing of the will, than to the acknowledgment of the signature, when' upon the question of capacity or undue influence they should regard all the evidence as to both. Without modification, I think the-instruction was improper under the circumstances of the case. But the majority of the court think, that taken in connection with the other instructions given to the jury, the giving of this instruction was not an error for which the case should be reversed; but a majority of the court, I among them, agree, that it would have been better under the circumstances appearing in the record to have modified the instruction so as read as follows : “ That if the jury shall find from the evidence, that the paper-writing of October 24, 1874, here offered for probate was signed by Shepherd McMechen himself, or by some person in his presence, and by his direction, in the presence of the attesting witnesses to said paper-writing, and he was then of sound mind, and it was then and there shortly afterwards acknowledged by Shepherd McMechen before said attesting witnesses as his last will, and that the said paper-writing shortly after' such acknowledgment was signed by the attesting witnesses in his presence, and that the testator, at the time said attesting witnesses signed the same, was of sound mind and physically able to assent to or dissent from such attestation, said acknowledgment made as aforesaid is not required by law and does not add to the legal validity of the will; but the jury in considering the state of mind of the said Shepherd McMechen should consider all the evidence in the case bearing upon that subject.”
Counsel for proponents insist, that the court erred in . giving at the instance of contestants instructions numbers five, six and eight.
The fifth instruction is: “The jury is instructed, that if they find from the evidence, that at the time of the execution of the paper-writing here offered for probate as Shepherd McMechen’s will/ the testator was not able to write his own name, and that William M. List did, without the testator’s request or consent, take hold of the testator’s hand and so write the testator’s name thereto, that such signing of the testator’s name to said paper is not in law, without more, a sufficient signing to make the same the true last will of Shepherd McMechen, deceased; but if the said McMechen, after-wards acknowledged the said paper as his will, as contemplated by number nine of proponent’s insfructions, such acknowledgment is a ratification of such signature.”
It is said by counsel in support of this alleged error, that “there was nothing in the evidence to justify the supposition, that the aid given to the testator by William M. List in making the signature to the will was without the testator’s consent. On the contrary the subsequent acknowledgment of the testator afforded clear and un-contradicted affirmative evidence, that it was done with his consent.” This is a proper argument for the jury upon the weight of the testimony, blit it cannot avail here, because there is certainly evidence in the record tending to show, that the testator was very weak physically, at the time the signature was written, and one of the questions was, whether he was not physically incapable of writing his name even with aid; and it was also disputed, that he acknowledged the signature at all. It was exclusively for the jury to say what the fact was. The instruction was properly given.
The sixth instruction for contestants is: “ The jury is instructed, that if they are satisfied from the evidence in this case, that the paper-writing of October 24, 1874, here offered for probate as the will of Shepherd McMechen, deceased, was made by him by reason of an undue influence exercised upon his mind and will, and would not have been made by him but for such influence, then they should find,- that the same is not his last will.” The objection to this instruction by counsel is, that it is an instruction upon a supposed or conjectural state of facts, of which there was no evidence. It is true, that it is error to instruct the jury upon a conjectural state of facts, of which no evidence has been offered. (Improvement Co. v. Morrison, 14 Wall. 447; United States v. Britting, 20 How. 254; Michigan Bank v. Eldred, 9 Wall. 553; Railroad Co. v. Houston, 5 Otto 703; St. Louis, &c., R. Co. v. Manly, 58 Ill. 300). But if the evidence in the case tends to prove certain facts it is proper to give instructions to the jury based thereon. (Parley v. English, 10 Gratt. 242; Reas’s adm’r v. Trotter, 26 Gratt. 585). There is evidence in the case tending to prove undue influence. Testimony is in the case of declarations, shortly before the testator was taken sick, that indicate an aversion to make a will, and one witness testified, that on the night of the death of the testator he said, “he did not want to make a will, but those people tormented and worried him so, that he had made up his mind to do it.” Then the circumstance of the guiding of the hand by William M. List, and the controversy as to whether the signature was not written wholly by Mr. List, instead of by the testator; and the further fact, that the scrivener’s children took a benefit under the will, and other circumstances that might be mentioned, however little or much weight there may have been in them, or however they may have been contradicted or explained, were all tending to show undue influence and were sufficient, upon which to base the instruction.
Syllabus 19.
Contestants instruction number eight to the giving of which the proponents excepted is as follows: “ If the jury believe from the evidence, that at the time the attesting witnesses were requested to sign said paper, and at the time they were engaged in signing the same, the said Shepherd did not possess sufficient consciousness to hear and understand and assent to said request, or dissent from the same, if he had wished, or that he did not pos sess sufficient consciousness to recognize and understand what said attesting witnesses were doing, and to assent to their acts, or that he did not .possess sufficient consciousness and sufficient physical strength to have dissented from the said attestation, and to have arrested and prevented the same by indicating his dissent or disapproval, if he had desired to do so, then the jury must find, that the said paper is not the will of the said Shepherd McMechen.”
syliabas 20.
gyllalms 21.
The attestation oí a will is necessary to its execution, and if before this important part of the execution of the instrument, and while it is being done, the testator by reason either of unconsciousness or physical inability, was unable to dissent from the attestation and to arrest and prevent the same by indicating his dissent or disapproval, if he had desired to do so, the will is not valid. It is not necessary, that the testator shall actually assent to the attestation, but when the attestation is made, he must be in a mental and physical condition, which will enable him to dissent from the attestation, if he desires ; and if his condition is such, that he could give such dissent or disapproval, if he chose to do so, but does not, his assent will be implied. The instruction propounds the law correctly, and was properly given,
The motion for a new trial in this case is based in part upon the exclusion of a part of Mrs. Good’s testimony. The following appears by the record : “State if your brother Shepherd did or did not get the largest share of your lather’s, estate ? Answer — Yes sir.” The question and answer objected to. “Answer continued. He did, more than all of us.” The record shows, that counsel for proponents proposed to show by the testimony, that Benjamin McMechen, the father of “the testator, Shepherd McMechen, had at his death left the larger portion of his estate to his son, Shepherd McMechen^ having some nine or ten children surviving; that Shepherd McMechen was properly#sensible of the inequality perhaps of the distribution of the property, which had been made; that he expressed himself to that effect, and that in consequence of this state of affairs he felt under an 0bligati0ri to his brothers and sisters and their children, and felt, that it was his duty in some measure at least to restore the property which fell to his lot in the distribution of the estate; the question, which is asked Mrs. Good, being merely introductory to further testimony, which plaintiff expects to offer on that point.”
Syllabus 22.
Syllabus 23.
Syllabus 24.
“The court — I think you may prove what he said on that subject, but I don’t think this testimony is proper.”
Then Mr. Morrow, counsel for contestants, asked to have that testimony stricken out, and the court ruled out the question and answer, and the proponents excepted.
Standing alone, evidence, that the testator had by his father’s will received the largest portion of his father’s estate, would be inadmissible. But upon the question of testamentary capacity evidence is admissible of declarations by the testator, that he had received the largest portion of his father’s estate, and that he intended by his will to restore a part thereof to his brothers and sisters, where the will shows, that he had made his brothers and sisters, or their children, beneficiaries thereunder. And after such declarations have been proved, it is proper to admit evidence, that the testator had in fact received the larger portion of his father’s estate, and the extent of the inequality. Whether the evidence excluded should-have been admitted depends upon the fact, whether evidence was before the jury as to such declarations of the testator. It is natural for a testator to provide for those nearest him, and to give them the whole of his property. When there is any doubt of his competency to make a will, the fact, that he has'devised a very considerable portion of his property to others of his relations, or to strangers, is proper to be considered by the jury; also it is proper for the proponents of the will, if they can, by proper and relevant testimony explain, why it was, that the testator disposed of his property in the manner he did.
The first clause of Shepherd MeMechen’s will provides for the payment of his debts; the second provides for his wife and children; the third for his brother James H. and his children except two, who are provided for in the fourth clause; thQ fifth for his nephews, William M. List and Jesse L. McMechen; the sixth for his two nephews, Benson Caldwell, and Benson McMechen, son of James H. McMechen; and the seventh gives all his personal property to his wife and the children of J. H. Good; one half to his wife, the other half to the said children. These are all the provisions of the will disposing of his property. The second clause of the will is as follows: “ I give and devise to my wife, Alcinda C. McMechen, for and during her natural life all that portion of my home-farm lying between the Baltimore and Ohio railroad and the Ohio river, and the property of John Morrow on the south and Aaron Kelly on the north, with remainder over to my two children, Mary L. McMechen and Shepherd V. McMechen, share and share alike.” The evidence shows, that a large portion of the estate was given to the other devisees.
When the court excluded the testimony of Mrs. Good, it seemed to have forgotten, that evidence bad already been given as to declarations of the testator as to his having received the largest share of his father’s estate, and that he would distribute it properly among his relatives. Thomas P. Shallcross in his evidence, which was introduced before the testimony of Mrs. Good was excluded, says, that some time, not earlier than the summer of 1872, among other things the testator said to him, “ that in the division of the estate of his father he had received more than his share, but that he intended to distribute it properly among his relatives.” J. H. Botsford testified to a conversation with the testator, in which he said to him : “ How came it that your father gave you so much larger a share than the balance ?” Witness thought his answer was that he didn’t know. Then witness said : u Yon have more than all of them.” He said : “ Well, he didn’t know whether more than all, but he had the largest share.” Witness made some remark, to which he replied : “ If I live, I shall make it all right with the heirs.” This is, it seems to me, sufficient to show the propriety of admitting the testimony of Mrs. Good. It was for the jury to say, whether he referred to making a will, when he said, “ that he intended to distribute his estate properly among his relatives,” and that “ifhe lived he would make it all right with the heirs.” The court erred in excluding the testimony.
We deem it improper to decide in a case like this, whether the verdict should or should not have been set aside as contrary to the evidence, where a new trial must be had.
The sentence and judgment of the circuit court of Marshall county in this appeal pronounced on the 1st day of February, 1879, rejecting the will of Shepherd McMeehen, deceased, is reversed at the costs of Alcinda C. McMeehen, next friend, &c.; and this Court proceeding to lender such judgment as the circuit court of Marshall county should have rendered, the verdict of the jury is set aside, and a new trial awarded the proponents and appellees, the costs to abide the result of the appeal; and the said appeal as to Alcinda C. McMeehen, widow of the testator, in her own right, is dismissed but without costs, and she is directed to be summoned in this appeal as an appellee ; and this cause is remanded to the circuit court of Marshall county, for further proceedings to be had therein, according to the principles herein set forth.
The Other Judges Concurred.
JUDGMENT KEVERSED. CAUSE E.EMANDED. | [
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Woods, Judge :
Three grounds of error are assigned :
First. The refusal of the court to exclude from the jury the plaintiff's evidence.
Second. The refusal of the court to admit the record of the district court in evidence as a bar to the plaintiffs action, and
Third. The refusal of the court to set aside the verdict, and grant the defendants a new trial.
We will first consider, the second and third errors assigned. The circuit court was pleased to assign as the reason for excluding the use of said record of the district court as a bar to the recovery of the plaintiff’s demand, that from the inspection of the said record, Wandling had not been served with process in said cause and not having appeared and pleaded, thereto, the record was not. binding and conclusive on him. It is evident that the court could not have intended to say, that it appeared from, the record, that Wandling had not appeared and pleaded, for it does clearly appear on the face of the record, that the defendants, (that is Wandling and Triplett), did appear to said action “by their attorney and there relinquished their former plea, and acknowledged the plaintiff’s action.” Having heard the plaintiff testify before the jury, that he never had been served with process, nor appeared in the case, the court must bo understood as saying that it appeared from the evidence, that the plaintiff had never appeared to the said action, and that from the record it appeared he had not been served with process, in the action and that he had not pleaded thereto, as no plea appears by the record to have been filed therein. We are thus brought face to face with the important question, whether in an action at law, the verity of the record of a court of competent jurisdiction made in a judicial proceeding in regard to a subject, and between parties subject to its jurisdiction, can be impeached by extraneous evidence? In the case under consideration the circuit court permitted the plaintiff to prove by his own testimony that the fact recited in the record that the defendants, (that is Wandling and Triplett,) “by their attorney relinquished their former plea, and acknowledged the plaintiff’s action,” was not true, and that he never appeared to said action. It will not be denied that the general rule is that the record of a court of general jurisdiction made in a judicial proceeding determined before it between parties over whom it has acquired jurisdiction, impoi’ts such perfect verity as not to admit of averment, plea or proof to the contrary, and is therefore conclusive upon the parties thereto. 1 Coke Lift. 260. The same is equally true as to inferior courts of record in all cases within their jurisdiction. The general rule for jurisdiction is that nothing shall be intended to be out of the jurisdiction of the superior courts, but that which specially appears to bo so, and on the contrary nothing shall be intended to be within the jurisdiction of an inferior court, but that which is so expressly alleged. While the district courts of the United States are its inferior courts of limited jurisdiction, they are not on that account inferior courts, in the technical sense of those words, whose judgments taken alone, are to be disregarded. If the jurisdiction be not alleged in their proceedings, their judgments or decrees will be erroneous, and may upon a writ of error or appeal be reversed for that cause but they are not nullities. 7 Rob. N. Pr. 60-61; 2 Oran oh p. 126. If a court of general jurisdiction had jurisdiction to render the judgement which it did render, no error in its proceeding which did not affect its jurisdiction will render the proceeding void, nor can such errors be considered when the judgment is collaterally brought in question. Bermingfield v. Reed & Sunderland, 8 B. Mon. 102; McGoonn v. Scales, 9 Wall. 154; Cox, &c. v. Thomas’s administrator, 9 Grat. 323.
But in order that the record may have such conclusive validity between the parties thereto, the defendant in such judgment or decree must have been before and subject to the jurisdiction of the court. This jurisdiction of the person may be acquired by the service of process upon him, or by his voluntary appearance to the proceeding either in person or by attorney; and if he appears to the action for any purpose except to take advantage of the defective execution, or the non-execution of the process, he places himself precisely in the situation in which he would he, if process were executed upon him, and he thereby waives all objections to the defective execution of the process. If he appears for any other purpose, his appearance will authorize a personal judgment against him. Bank of the Valley v. Bank of Berkeley, 3 W. Va. 386; Mahany v. Kephart and B. & O. R. R. Co., 15 W. Va. 609; Burlew v. Quarrier, 16 W. Va. 108; Hany v. Skepwith, 16 Grat. 410. If then, the plaintiff in this case appeared to the action in the said district court against him and Trip-lett, and relinquished his plea, or acknowledged the plaintiff’s action, he thereby submitted himself to the jurisdiction of said court, and authorized it to render a personal judgment against him for the amount justly due from him not exceeding the penalty of his bond. This he certainly did, unless he is authorized in this collateral proceeding to contradict the record by evidence wholly outside of it. If he appeared in person or by attorney it was immaterial whether he pleaded or not,if he “acknowledged the plaintiff’s action.” This could properly be done, and it is often done, and then the plaintiff has nothing to do except to execute the writ of enquiry as was done in that case.
It has been contended, by eminent jurists, and many adjudicated cases have given color of authority to the proposition insisted upon by the defendant in error here, that where there has been no service of process on the defendant, and he has not personally appeared to the action or proceeding, and the record shows that the defendant “appeared by his attorney,” in a collateral proceeding founded upon such judgment, or in a proceeding wherein the effect of such judgment properly comes in question, such defendant may in such collateral proceeding impeach such judgment by proving that he did not in fact so appear by attorney, and that the attorney who assumed authority to appear for him, had no authority to do so. Starbuck v. Murray, 5 Wend. 148; Holbrook v. Murray, Id. 161; Shumay v. Stettman, 6 Id. 447. In the cases cited and in many others that might be cited, this position has been strongly maintained, because it seemed unreasonable and unjust that any person should be thus bound by the unauthorized act of a third party, and because the record can not have, and ought not to have, any degree of couclusiveness, for until the party is before the court, it can make no adjudication upon any fact necessary to give the court jurisdiction. If however, the appearance by attorney which may in one case give the court jurisdiction over the person of the defendant, when he has not been served with process, can be disproved by extraneous evidence, why shall a defendant in another case, who from the record appears to have been served with process, be precluded from showing by similar testimony that he was not in fact so served, or that thepi’ocess was served upon some other person ? The same reason that will admit the proof in the first case, would be equally good in the latter case; and if good in both cases no judgment or decree in any case can be said to be the end of controversy. The better opinion in the later cases, now held in States where the former rule at one time prevailed, is, that where the record shows, that the “ party appeared by his attorney,” it can not be contradicted by extraneous evidence; and it.has been held that a court of general jurisdiction is not bound to set forth, on the record the facts upon which its jurisdiction depends, and that whenever the subject matter is a controversy at law between individuals, the jurisdiction is presumed, from the fact that it has rendered the judgment, and the correctness of such judgment can be inquired into only by some appellate tribunal. Cox, &c. v. Thomas’s Administratrix, 9 Grat. 323.
In Andrews v. Bernhardt, 87 Ill. 365, it was held that where a decree for the sale of land of a deceased person to pay his debts recites that due notice was given, the finding as to jurisdiction, will in a collateral proceeding be conclusive, and can only be rebutted by evidence in the record, and not by extraneous proof. In Brown v. Nichols, 42 N. Y. 26, decided in 1870, the court held, that judgment recovered against a defendant, who was not served with process, and had no knowledge of the suit, but for whom an attorney appeared without authority, cannot be attacked for want of jurisdiction in any collateral proceeding, and is binding on such defendant.
In Reed v. Pratt, 2 Hill 64, it was held by the court of errors in New York, in 1841, that a judgment of a domestic court of record, importing that the defendant appeared by attorney cannot be avoided collaterally by showing that the appeai’ance was without authority, the party’s sole remedy being by motion to the court which rendered the judgment.
In Harshey v. Blackmarr, 20 Iowa 161, it was held that, although an attorney can not without special authority to do so, admit service of jurisdictional process upon his client, yet it will be presumed in all collateral proceedings, and perhaps, on appeal or in error, that a regular attorney-at-law who appeared for a defendant not served with process, had authority to do so; and to enable a party who has been represented by au authorized attorney to be relieved, he must negative the presumption of authority in the attorney, and ordinarily this must be done by motion, or by bill in equity. In this case, Judge Dillon in delivering the opinion of-the Court, says that it is now settled, both in the Federal and State courts with respect to foreign judgments, that a judgment debtor in au action against him on the judgment of another State may successfully defend by showing that the attorney who entered the appearance for him had no authority to do so. It has been held otherwise as to domestic judgments, but the soundness of the ruling is doubted. In the ease of Carpenter v. The City of Oakland, 20 Cal. 439, it was held, that in an action at law upon a judgment of a court of general jurisdiction, the defendant can not show as a matter of defence at law, that the court did not acquire jurisdiction of the defendant, or that its jurisdiction was fraudulently acquired except by an examination of the record; and that if an attorney appears for a defendant in a court of general jurisdiction, this appearance gives the court jurisdiction of the defendant, and if the attorney appeared without authority, that fact can not be shown as a defence at law, in a suit upon the judgment. Sanderson, Justice, delivering the opinion of the court in the case just cited, discussing the question whether at common law in an action of debt upon a judgment (domestic) of a court of general jurisdiction, the defendant could, show fraud or want of jurisdiction by extraneous evidence, said: “ The question is in our judgment too well settled by authority to require any argument founded on prin ciple. Mr. Chitty states the rule to be that neither the defendant himself, nor his bail or sureties can plead that the judgment was obtained against him by fraud, though it may be pleaded that a judgment against a third person was so obtained (1 Oh. Plead. 486.) The validity of the judgment can notbe collaterally attacked on the ground of fraud, nor on the ground that the court had no jurisdiction, whether the supposed want of jurisdiction is alleged as an element of fraud or not, unless the want of jurisdiction appear upon the face of the record. The maxim of the law is, that the judgment of a coui’t of general jurisdiction, imports absolute verity, and its truth can not be questioned, either by showing otherwise than by the record itself, that the court had no jurisdiction, or that its jurisdiction was fraudulently procured. Both upon the merits of the cause of action, and upon all jurisdictional facts, the record imports absolute verity in law, and is to be tried by the court upon inspection of the record only. Hence at law, the validity of the judgment can be put in issue by the plea of nul tiel record only, and if on inspection it turns out that the plea is not true, there ’ is an end of the controversy. If its validity is to be impeached from without, some other appropriate remedy must be found.” The same doctrine is laid down in Freeman on Judgments, sections 128 and 131. The case of Warren & Dallon v. Lusk, decided in 1852, reported iu 16 Mo. 102,was an action of debt,brought in Missouri against the defendants upon a judgment recovered agaiut them in Illionis, and the defence was that the defendant had never been served with process, and had never appeared or authorized any one to appear for him in the original cause, but the record in that cause stated that the defendants hied their demurrer, and at a subsequent day the record recited, that “ this day came the parties by their solicitors, the defendants having hied their demurrer to the plaintiff’s bill,” &c. The demurrer was overruled and plaintiffs nad leave to amend their bill, and J. II. Lusk failing to answer, the bill as to him was taken for confessed, and he was adjudged to pay the plaintiff $3,238.00, but the court held “ that under the act of Congress of May 26,1790, in a suit upon a judgment of another State, whose laws as to the effect of judgments are the same as our own when it appears from the face of the record that the defendant appeared by his attorney, evidence to show that the attorney had no authority to appear, was inadmissible.
The rule ol law laid down in these cases, must apply with equal force to judgments of the district court of the United States for the district of West Virginia, on subjects, and between parties subject to its jurisdiction, in the same manner and to the same extent as to the judgments of the circuit courts of this State, in all cases where they have concurrent jurisdiction, and to that extent at least, the judgment of said district court must be held to he a domestic judgment of this State.
We are therefore of opinion that in an action founded upon a judgment of the district court of the United States, for this State, or in any other proceeding at law between the parties to such judgment wherein the same may be used, and it appears by the record in said cause that the defendant had “appeared by attorney” in the original action or proceeding in which the judgment was recorded, such defendant can not show as a matter of defence at law to invalidate such judgment, that the said attorney appeared without authority; and that such a judgment is a domestic judgment of this State, and as to all matters within the jurisdiction ot said district court, its judgments are entitled to all -the legal presumptions arising in favor of the judgments of the circuit courts of this State.
The circuit court erred in refusing to admit the trans-script of the record of the suit in the district- court, as a bar to the plaintiff’s demand, so far as the evidence might show, that the items of his account, had been in fact adjudicated in that judgment, and also in permitting evidence to be introduced to- show that the plaintiff had not in fact appeared by attorney to the said action, and “acknowledged the plaintiff’s action” therein. Let us now inquire whether the plaintiff’s demand in this case was in any respect, or to any extent barred by the proceedings had in the action of defendant against him and his surety, Triplett, in said district court. The liability of Wandling to the plaintiffs in error, grew out ot his agreement made with them on September 8,1870, and consisted of the amounts due to them for sewing machines delivered to him, for moneys received from the sales thereof and not paid over to them, or for the notes taken from purchasers and not paid by them for which by the express terms of bis agreement, he became personally responsible as guarantor or endorser, or for machines unsold, and not returned to them, and the bond of $500.00 executed by him and his surety Triplett, was only a security tor the performance on his part of that agreement, and the plaintiffs in error were only entitled to recover thereon, so much money as they were able on the trial to prove was due to them upon that agreement. In order to recover in their action they were obliged to allege and prove on their part, that they had fulfilled and performed all the terms and conditions on their part to be performed, which included the furnishing of the horse, wagon and harness, and the payment of the stipulated compensation to Wandling for his service, and in addition the amount due to them from him still remaining unpaid. The transcript of the record in that case, contains an itemized statement of machines and fixtures, furnished to Wandling under said agreement, with the prices affixed to each item, and all moneys and notes received and the notes so received, which were unpaid by the makers, and justly chargable to him under the terms of said agreement, and on the trial such proof was introduced as warranted the jury to find by their verdict, that by reason of these matters, Wand-ling was indebted to them in the sum of $500.00, for which the court eutered judgment in favor of the plaintiff iu error, against Wandling and Triplett on their said bond.
The defendant in error filed with his declaration a bill of particulars, containing the items of his claim against the plaintiffs in error, which he desired to prove on the trial of his action. IJpon examination of the items of his account we find an item of $75.00, for the use of horse and wagon, another of $70.00 for a machine alleged to have been returned and another of $12.00 for commission on one machine, all the other items of his account appear on the account which the plaintiffs in error filed with their declaration in their action in said district court. It is thus apparent from the face of the bill of particulars, that every item thereof grew out of and formed part of the account sued upon, in the district court, and they were necessarily passed upon by the jury in that case. But if there ever was any room to doubt the correctness of this conclusion, it is entirely removed by the testimony of Wandling himself contained in the certificate of the evidence made by the circuit court, in the third bill of exceptions; for he deposes, “that the judgment they (i. e. the plaintiffs in error) obtained in the United States Court against Burr Triplett on my bond was for many items in my account here, which I did not owe them, and if he should have to pay it I would have to re-pay him. The suit in the Federal court was on the bond executed by me with Triplett as security ; attached to it, was the contract between myself and said Straw & Morton. This suit is not brought on the contract but for the purpose of collecting or obtaining judgment for my account, for money already paid the defendants under said contract, and for what they subsequently obtained a judgment against Burr Triplett as my security and myself in the district court of the U nited States for the district of West Virginia, in which j udgment they have not allowed me credits for my account, and if they collect said judgment off Triplett, as my security, I will be compelled to re-pay him.” Admitting everything to which Wandling has testified to be true, as stated, has ho shown any cause of action against the plaintiff in error ? Has he not on the contrary, clearly shown, that whatever claim he might have once had, for the items of his account, they have been finally adjudicated by the judgment of a court of competent jurisdidtion.
It has been held that the effect of a judgment as a bar or estoppel against a prosecution of a second action upon the same claim or demand rendered on the merits, constitutes an absolute bar to a subsequent action. It is a finality to the claim or demand in controversy concluding parties and those in privity with them not only as to every matter which was offered or received to sustain or defeat the claim, but as to any other admissible matter, which might have been offered for that purpose. Thus, for example, a judgment on a promissory note, is conclusive as to the validity of the instrument, and the amount due upon it, although it be subsequently alleged that perfect defences actually existed of which no proof was offered, such as forgery, want of consideration or payment. The judgment is as conclusive so far as the future proceedings at law are concerned, as though the defences never existed. Such a judgment estops not only as to every ground of recovery or defence actually presented in the action, but also as to any ground which might have been presented to the demand or claim in controversy, and such demand or claim having passed into judgment cannot again bo brought into litigation between the parties in proceedings at law upon any ground whatever. Cromwell v. County of Sac, 4 Otto. 350; Loring v. Mansfield, 17 Mass. 394; Marriott v. Hampton, 17 Tenn. 265; Benttz v. Morse, 14 Johns. 468, 2 Rob. (N. P.) 476; Blair v. Bartlett, 75 N. Y. 150; Davis, &c. v. Talcot, 12 N. Y. 184. From a review of these authorities, we are of opinion, that the evidence introduced on the trial of this action is clearly insufficient to sustain the verdict rendered herein, and the same for this reason ought to have been set aside, and that for the same reason the motion of the plaintiff in error, to exclude from the jury the testimony offered by the defendant in error, ought to have been sustained.
We are therefore further of opinion, that for the errors aforesaid the judgment of the circuit court of Wood county reudered herein, on January 18, 1884, must be reversed with costs against the defendant in error. And this Court now proceeding to render such judgment as the said circuit court should have rendered, it is considered that the verdict of the jury be and the same is hereby set aside, and this cause is remanded to the said circuit court for a new trial to be had therein in accordance with the principles settled in this opinion, and further according to law.
Reversed. RemaNded. | [
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RULEY, JUDGE:
This case involves a claim for damages in the sum of $450,000.00 growing out of performance of a contract requiring the claimant to construct approximately 190,000 linear feet of fence along the right of way of Interstate Route 64 in Kanawha, Cabell, Putnam, and Wayne Counties. Several items of the claim were eliminated by the Order heretofore entered on September 1, 1976, sustaining the respondent’s motion to dismiss. Subsequently, the case was tried insofar as it related to the remaining items of the claim, viz.: (1) a claim for labor and material allegedly furnished incident to providing extra terminal posts; and (2) a claim for relief from liquidated damages asserted by the respondent.
To facilitate understanding of the claim relating to extra terminal posts, it must be understood that all fence posts may be classified as line posts (which require no bracing member) or as terminal posts (which require at least one bracing member). Terminal posts may be sub-classified as end posts (which require one bracing member), pull posts (which require two bracing members), or corner posts (which require two bracing members). All terminal posts and their bracing members were required to be set in concrete and were larger and heavier than line posts, the purpose of the latter being only to support the fence between the terminal posts. The importance of the distinctions insofar as cost is concerned is apparent without further explanation.
The respondent’s plans and drawings, which were incorporated into the contract, showed 854 terminal posts. The claimant’s bid was based on a projected installation of 925 terminal posts, the increase representing an allowance for additional terminal posts at points where either the horizontal or vertical angle of the fence was 15° or more. In that connection, the preponderance of the evidence clearly established the trade practice or custom of not installing terminal posts at points where an angle in a fence is less than 15°. Based on the calculation of 925 terminal posts, the claimant’s successful unit price bid was $1.79 per linear foot of fence — one cent lower than the respondent’s estimate of $1.80. As the fence was constructed, the respondent required the claimant to install 1,927 terminal posts.
The contract specifications in the last two paragraphs of §2.131.3 (F), apparently intending to relate to line posts and terminal posts, respectively, provided:
“Posts shall be spaced in the line of fence as shown on the plans with tolerances of minus two ( — 2) feet. Spacing of post shall be as uniform as practicable under local conditions. Additional posts shall be set at each abrupt change in grade.
Pull posts, as defined in these specifications, shall be placed approximately three hundred thirty (330) feet apart in straight runs and at each vertical angle point, all as directed by the engineer. Corner posts shall be placed at each horizontal angle point.”
The patent inconsistency and ambiguity of these provisions (which literally would require both a line post and a pull post at each vertical angle point) must be construed and resolved in the light of the proven trade practice and custom and common sense. Raleigh Lumber Co. v. Wilson & Son, 69 W.Va. 598, 72 S.E. 651 (1911); Bragg v. Lumber Co., 102 W.Va. 587, 135 S.E. 841 (1926). In addition, broad delegations of power must be exercised in a reasonable manner under the particular circumstances of each case, and not in an arbitrary or capricious manner. Tri-State Stone Corp. v. The State Road Commission of West Virginia, 9 W.Va. Ct. Cl. 90, at 106 (1972). The evidence demonstrates that the claimant was required to install 641 terminal posts at horizontal or vertical angle points of less than 15°, with the vast majority at angles of less than 10° and a very substantial number at angles under 5° — none of these were points where end posts or maximum spacing terminals were necessary. From a preponderance of the evidence, it appears that those 641 terminal posts were unnecessary (that is, that line posts would have served just as well), and that their requirement was arbitrary. The undisputed evidence is that the additional cost to the claimant, above the cost of a line post, of each terminal post was $131.33. Accordingly, it appears that the claimant should be awarded the sum of $84,182.53 for extra terminal posts.
Turning to the matter of liquidated damages, it appears that the respondent assessed and imposed (withholding the sum from the claimant’s final payment) $25,900.00 in liquidated damages calculated pursuant to the contractual formula at the rate of $100.00 per day for 259 days of alleged delay in performance of the contract. It is undisputed that the claimant failed to complete its work under the contract until 286 days after the contract completion date. The respondent granted an extension time of 27 days, leaving 259. days for which liquidated damages were assessed. Evidence respecting several reasons for the delay was offered by the claimant as bearing upon the issue of whether the delay should be excused, but the Court does not need to consider that issue because of the general rule enunciated in 22 Am. Jur. 2d “Damages”, §233, p. 319, as follows:
“The plaintiff cannot recover liquidated damages for a breach for which he is himself responsible or to which he has contributed, and as a rule there can be no apportionment of liquidated damages where both parties are at fault. Hence, if the parties are mutually responsible for the delays, because of which the date fixed by the contract for completion is passed, the obligation under which another date can be substituted, cannot be revived.” (emphasis supplied)
It could not be contended that the installation of 641 extra terminal posts did not contribute to cause the delay. In addition, there is no evidence as to the amount of actual damage, if any, sustained by the respondent as a result of the delay in constructing the right of way fence. For that reason, this case would seem to fall within the purview of the rule enunciated in J. I. Hass Co., Inc. v. State Road Commission, 7 W.Va. Ct. Cl. 209, at 212 (1969). Accordingly, the assessment by the respondent of liquidated damages must be rejected and the claimant awarded the additional sum of $25,900.00.
Award of $110,082.53. | [
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SnydeR, Judge:
In April, 1884, Samuel Couch died at his home in Mason county, the owner of a valuable estate, consisting of both real and personal property, all of which he disposed of by his last will. The will is dated May 15th, 1879, and was duly probated in said county, May 13th, 1884. The. first clause of the will is in the following words:
“First. I give and devise unto my son, Peter S? Couch, the farm on which I reside in Mason county, West Virginia, com taming about nine hundred and fifty acres ; but it being my desire to divide my property as near equally as may be between my two children, Peter S. Couch and Sarah Frances Eastham, I direct my said son, Peter S. Couch, to pay to his sister. Sarah Frances Eastham, the sum of four thousand dollars, and I hereby make the said sum of four thousand dollars a lien and charge upon the real estate aforesaid devised to said Peter S. Couch until the same is paid to said Sarah F. Eastham or her heirs; but in the event that said Peter S. Couch shall die, leaving no lawful children surviving him, (but leaving his wife, Mary Catharine Couch, surviving him) it is my will and desire that the title to' all of my real estate aforesaid, shall pass to and be vested in my daughter, Sarah Frances Eastham, or her children if she be not then living, upon the payment by her, or her said children, to Mary Catharine Couch of the sum of four thousand, dollars, but in the event that said Mary Catharine Couch shall not then be living, it is my will and desire that said real estate shall pass to and vest in my said daughter, Sarah F. Eastham, and in case of her death, to her children, without the payment of anything in consideration therefor.”
The -testator by the second clause' of his will gave his daughter, Sarah Frances Eastham, all of his personal estate with the exception of some specific legacies which he gave to others.
By a codicil dated September 8th, 1880, the testator modified said first clause by substituting the words, “two thousand dollars,” for the words “four thousand dollars,” which I have italicised in said clause. This is the only change made in the will by the codicil. (Couch v. Eastham, 27 W. Va. 796.)
In April, 1886, Peter S. Couch brought the first of these suits in the Circuit Court of Mason county against his sister, Sarah Frances Eastham, and her children and others, for the purpose of having the said will construed. In this suit the plaintiff claims that by the first clause of the will he takes an estate in fee in the farm of 950 acres, defeasible upon his dying without leaving children surviving him, and that if he so dies without children then living, his fee is defeated, and the farm passes to and vests in his sister, if living, and if not, then in her children, and in that event neither he nor the farm is chargeable with the four thousand dollars therein mentioned in favor of his sister. But if he dies, leaving children, and his fee thus becomes absolute, then, when this fact is determined by his death, leaving children, and not till then, does the four thousand dollars in favor of his sister become a fixed charge on the fee of the farm. In other words, the plaintiff contends that if the contingency happens, which by the provisions of the will reduces his interest to a Tife estate only, then there is no charge in favor of his sister, and that it is only when and in the event he dies, leaving children, that the charge takes effect and becomes payable.
The said Sarah Frances Eastham also filed her bill in said court against the said Peter S. Couch, her children and others, to have said farm of 950 acres rented to pay the legacy of $4,000 chargéd thereon in her' favor, or to have so much thereof sold as may be required to pay said legacy. In this suit the plaintiff claims, that the plain intent of the first clause of the will is, that the $4,000 is to be paid to her unconditionally; and is to be so paid, whether the said Peter dies leaving children or not, or whether his estate in the farm happens to be an absolute fee or an estate for life only, and that she has a present right to collect and enjoy the same.
There was a demurrer to the bill in the first cause which the court overruled. Answers were filed to each bill, ex-hibís filed and depositions taken by the respective parties; and on March 12,1887, the two causes were heard together, and the court entered a decree by which it sustained the claim of the plaintiff in the first cause and dismissed the bill in the second cause, thereby deciding that there is no charge on the farm in favor of the sister unless and until, by the death of Peter, leaving children, it shall be determined that he takes a fee simple estate in the farm, and in that event and then only is there such charge. Prom this decree Sarah P. Eastham has appealed.
No portion of the will of Samuel Oouch, except what has been before given, furnishes any aid in the interpretation of the clause in controversy. The following facts appear in the record: The testator left two children, Peter S. Oouch and Sarah P. Eastham. The latter is the wife of Wellington Eastham and the mother of seven children, all of whom are infants and still living. The former was married to his present wife, Mary 0. Oouch, in the year 1868, eleven years before the date of the will and sixteen before the death of the testator. At the time of his father’s death he was about 42 years of age and had no children then nor has he had any since. The wife of the testator died 12 years before he did, and from the time of his wife’s death until his own death, the testator and the son Peter lived together on the farm of 950 acres. The value of said farm according to the testimony is about $18,000, and its annual rental value from $800 to $1,000. The net value of the personal estate paid over to the daughter under the provisions of the will was $9,719.
The only controverted question before this Court is the true interpretation and effect of said first clause of the will, and even that is narrowed down to the simple enquiry, whether or not the $4,000 therein given to the daughter, is an absolute gift and charge on the farm or merely contingent upon the son taking the farm in fee simple ?
The following rules for the interpretation and construction of wills have been fully settled by the Courts of "Virginia and of this State
I. When the language of the testator is plain and his meaning clear, the courts have nothing to do but to carry the expressed will of the testator into effect, if it is not inconsistent with some rule of law. (Whelan v. Reilly, 5 W. Va. 356; Graham v. Graham, 23 Id. 36; Rayfield v. Gaines, 17 Gratt. 1.)
II. In the interpretation of a will, the true enquiry is, not What the testator meant to express, but what the words used do express. (Burke v. Lee, 16 Va. 386.)
III. Where the will affords no satisfactory clue to the real intention of the testator, the court must from necessity resort to legal presumptions and rules of construction. But such rules yield to the intention of the testator apparent in the will, and have no application where the intention thus appears. (Tebbs v. Duval, 17 Gratt. 349.)
IV. To aid in- ascertaining the true construction of the will, evidence may be received of any facts .known to the testator which may reasonably be supposed to have influenced him in the disposition -of his property, and also as to all the surrounding circumstances at the time of making the will. (Wootton v. Redd, 12 Gratt. 196; Atkinson v. Sutton, 23 W. Va. 197.)
In Burke v. Lee, the court says: “If there be found a subject which satisfies the disposition of the property as contained in the will, evidence can not be received to show that the testator intended a greater or a different subject or estate. The only exception to the rule excluding parol testimony of the intention of the testator is in case of latent ambiguity.” (76 Va. 389; Avery v. Chappel, 6 Conn. 270, S. C. 16 Am. Dec. 53.)
The provision or clause of the will now under considera, tion is expressed in plain, unambiguous terms. The objects of the testator’s bound as well as the subject disposed of are fully identified. According to the rules before stated, it seems to me, there is very little room for any attempt to construe this will. To undertake to do so, can bejiittle more than to repeat its provisions. In clear and positive terms the testator devises to his son, Peter, his farm of 950 acres less $4,000.00. He bequeaths to his daughter, Sarah, his personal estate and $4,000.00 out of the farm. In making this charge on the farm the testator explains why he does it. He says he did it in order to make the division of his property between his two children as nearly equal as may be. The context clearly shows, that his purpose in using the words, “it being my desire to divide my property as near equally as may be between my two children,” was to declare or explain why he required Peter to pay his daughter the $4,000.00. These words were not used in any -substantive sense. But if they were employed to declare 'an intention or purpose to divide the estate equally, still they can not be construed to mean that the testator intended to delegate the authority to make this division to his executor or his neighbors. He made the division himself, and whether he did so correctly or not, it was his absolute right to do it in any way he might choose, and therefore there is no appeal from his judgment, or power in the courts to change it. We have already decided in reference to this same will, that if the testator made a mistake and did in fact what he did not intend to do, we can not go beyond the will itself to correct such mistake. (Couch v. Eastham, 27 W. Va. 796.)
There is, however, no complaint as to this portion of the will. It is conceded by the appellee, if this were all, that the division of the property would be about equal, and it would be his duty to pay the $4,000 at once. But the inequality it is contended may possibly result from the subsequent provision which devises the remainder in the farm to Sarah or her children in the contingency, that Peter dies without leaving children surviving him. It is said, that if the fee of the farm less $4,000 is equal to the personal estate plus $4,000, it is manifest that a life estate only in the farm less the $4,000 must of necessity be greatly less than the personal estate plus the $4,000, plus the fee in remainder in the farm. That in this latter event the division, would be grossly unequal and Peter would in fact get little or nothing instead of one half the estate.
If we conclude this to be true, unless we can find in the will itself a different purpose, we have no power to change it. When a testator has the legal capacity to make a will, he has the legal right to make an unequal, unjust or unreasonable will. Voluntas stat pro rations. (Boylan ads. Meeker, 28 N. J. 274.) The courts may construe and enforce a will, but they can neither make nor change one. That is the province of the testator alone.
But in reply to this position it is contended by the ap-pellee, that the testator has on the face of his will declared his intention to divide his property equally between his two children; and that therefore he could never have intended or assented to such an unjust and unequal division as the one above suggested. We have already shown, as we think, that this declaration of the testator was not the manifestation of a substantive disposition of his property, but simply the reason for a particular provision in his will. If, however, it be conceded, that this general declaration may be considered as the manifestation by the testator of a purpose to divide his property equally, and that this purpose should have a substantive operation in the interpretation of the will, still that would not warrant us in imposing conditions, which are not only not contained in the will, but which are in positive contradiction of. other portions of the same clause of the will. • The express command of the testator in his will is : “ I direct my said son, Peter S. Oouch, to pay to his sister, Sarah Prances Eastham, the sum of four thousand dollars, and I hereby make said sum of four thousand dollars a lien and charge upon the real estate aforesaid, devised to said Peter S. Oouch, until the same is paid to said Sarah .E. Eastham or her heirs.” This is an absolute and unqualified direction to Peter to pay to his sister $4,000 without any condition or contingency of any kind, and to make the command and requirement, if possible, still more absolute the said sum is made an express lien and charge upon the farm until it is paid. There is no word or sentence in the will, that, by any just construction, can make the payment of this legacy dependent upon the dying of Peter leaving children ; nor is there any intimation, that it is not to be paid until Peter dies leaving children, or in the event, he dies without leaving children, that it is not to be paid at all. "Whether Peter will die leaving children surviving him can not be determined until the death of Peter occurs, and then it will be impossible for him to pay it. Yet the positive command is, that Peter shall pay it, and not his heirs or personal representative. It seems to me, therefore, that the Circuit Court plainly erred in deciding, that said legacy should not be paid unless and until Peter should die leaving children surviving him.
Even if this conclusion should be made to appear by extrinsic evidence to be in positive conflict with any notion or opinion, this Court, or the witnesses, who testified in these causes, might have of what would be an equal division of the testator’s property in any possible contingency, we •would still be bound to adhere to it, because it is the judgment or opinion of the testator as what shall be considered an equal division, and not that of us or the witnesses, which is to control our decision. But if we were permitted to enter upon the forbidden enquiry, and attempt with the aid of the extrinsic evidence before us to reconcile the judgment of the testator with our own and that of the witnesses, it does not necessarily follow, that there would be any very decided difference of opinion. Putting ourselves, therefore, in the place of the testator at the time he made his will, and having regard to the surrounding facts and circumstances of which he must have been cognizant, was the judgment of the testator, that he had made, as near as may be, an equal division of his property between his two children plainly erroneous if the interpretation we have given the will is to prevail ?
According to the scheme of the will, the objects of the testator’s bounty were divided into two classes: On the one side were Peter and his wife and his children if he left any, and on the other were Sarah and her children. Between these two classes he divided his estate equally. The ap-pellee admits that such would be the fact if he dies leaving children. Such would be equally the fact if the testator had limited the bequest to Sarah as he did the devise to Peter; that is, if he had provided cross remainders in favor of the other in the event that either one of his two children died without leaving children. But from the standpoint of the testator such a limitation upon the bequest to Sarah in favor of Peter would have been of no actual benefit to Peter, because Sarah had then a number of children and there would be nó probability of her dying without leaving children. In that case Peter could not have disposed of the farm devised to him, hut could only have had the use of it as he now has. Peter would then have had to pay the legacy of $4,000 at the death of the testator in order to make the estate of Sarah equal to his. For, the estate given to him is worth at least $8,000 more than that given to his sister. So it is now, if Peter is permitted to retain the $4,000 until he dies he will have in his possession $4,000 of the portion of his sister and an estate worth $4,000 more than she has received beside. This would clearly not be an equal division, tor Peter would during his life have the use of a property worth $18,000 while his sister would have but $9,000 or one half as much.
But it was known to the testator, that Peter had no children and would probably have none; and therefore while he was willing to provide for Peter and any children he might leave and make them equal to Sarah and her children, he was unwilling to provide for strangers such as Peter might make his devisees. He wanted to keep his property in his own blood, hence after providing for Peter and any possible children he might have just as he had done for Sarah and her children, he declared that after Peter had enjoyed his bounty as long as he lived then in the event he left no children the farm should pass to Sarah or her children subject to a charge of $2,000 in favor of Mary O. Couch, the wife of Peter, should she survive him. This is the whole scheme of the will as is apparent upon its face, and in no contingency was it intended to postpone the payment of the legacy to Sarah until the death of Peter; because to do so would not only be to disregard the plain mandate of the will, but make the division of the estate grossly unequal. It does not seem to me, therefore, that the will is either unnatural or unjust to Peter even in view of all the facts in these causes.
It is very common in wills for testators to provide limitations and cross remainders in the event, that any of the dev-isees should die without children, and it has never been supposed, that the fact, that some of the devisees had children while others had not at the time the will was made, would make the portions of the devisees unequal, The following-are such cases: Norris v. Johnson, 17 Gratt. 8; Tebbs v. Duval, Id. 349; see 3 Jarm. on Wills 347; Abbott v. Essex, 18 How. 202.
We are referred by counsel for appellee to 3 Jarm. on Wills, 22, where the anthor says, “It has long been settled that when a devisee, whose estate is v/ndeimed, is directed to pay the testator’s debts or legacies, or a specific sum in gross, he takes an estate in fee, on the ground that if he took an estate for life only he mght be damnified by the determination of his interest before reimbursement of his expenditure.”
This rule has no application to the devise in this instance. Here, as we have seen, the devise to Peter S. Couch is defined and fixed by the will. It is only in cases where the estate of the devisee is doubtful or undefined by the terms of the will that this rule can be invoked. (Abbott v. Essex, 18 How. 202; Mooberry v. Marye., 2 Munf. 453.)
At the time the testator died the farm devised to Peter was held by him under a lease from his father which did not expire until January 1st, 1886, and it is therefore claimed that the legacy of $4,000.00 charged upon the farm and which Peter is directed to pay to his sister, should not be made to bear interest until the time at which the lease terminates. This claim can not be sustained. The devise of -the farm to Peter merged and extinguished the lease and from the time the devise took effect he held the farm in all respects as if it had not been leased to him. (2 Pom. Eq. Jur. 244, § 787; Little v. Bowen, 76 Va. 724.)
There is also a question as to the time at which this legacy of $4,000.00 shall commence to bear interest. A legacy, for the payment of which no other period is assigned by the will, is not due till the end of the year after the testator’s death; and as interest, in the absence of an express contract, can only be claimed for non-payment of a demand actually due, it is an undisputed general rule, that although a legacy vests, where no special intention to the contrary appears, at the death of the testator, it does not begin to carry interest until a year afterwards, unless it be charged solely on lands. (2 Chitty’s Bla. Com. 514, note; Bradford v. McConihay, 15 W. Va. 732.)
This legacy is made a charge upon land, but not solely so charged. It is also made a personal demand against the devisee. (3 Pom. Eq. Jur., 224, § 1,246; Brown v. Knapp, 79 N. Y. 136.) The legacy here, under the special facts and circumstances, I think should bear interest from the death of the testator notwithstanding the fact, that it is not charged solely on land. It is a. bequest to a. child of the testator and is in effect a gift to her out of land. The devisee of the .land is required to pay this sum to his sister in order, that her portion of the estate may be equal to his; and inasmuoh as the son took the land at the death of the testator it seems to be right and reasonable, that he should be required to account to his sister for this legacy as of the time he commenced to enjoy the land.
For the forgoing reasons, I am of opinion, that the decree of the Circuit Court should be reversed, the bill in the first pf these causes dismissed and the second cause remanded to said court for further proceedings there to be had in accordance with the principles announced in this opinion.
Peveesed. Remanded. | [
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GARDEN, JUDGE:
On January 7, 1975, claimant Mary Lou Cole, wife of claim ant Wilson R. Cole, was operating a 1973 Plymouth Road Runner owned by him on West Virginia Route 21 near Beckley, Raleigh County, West Virginia. A single vehicle accident occurred in which she suffered severe injuries, two children of the claimants were killed, and the vehicle was destroyed. The claimants contend that the respondent was negligent in permitting a layer of ice to accumulate on the highway at the place of the accident. When Mrs. Cole drove onto the ice, she lost control of the vehicle, crossed the center line into the opposite lane of travel, ran up and then down an embankment and then crossed both lanes of travel and proceeded over a hill into a pond where the vehicle turned over in the water.
Trooper Bradford Vaughan investigated the accident. He testified that the surface of this particular section of State Route 21 is shaded by a high embankment on the west side of the highway adjacent to the southbound lane for a distance of “at least a hundred feet” and, if there is any ice on that portion of the highway, it does not thaw until mid-afternoon.
Trooper A. W. Maddy testified that he had passed the accident scene twice on the day of the accident. On his way to his office he had noticed that all of the road were covered with a thin layer of frost or ice and this spot was no different from the surface of the roads elsewhere. However, on his way through the accident scene later at about 11:00 a.m., he noticed that the ice was still present there, whereas the surface of the other roads was clear of the ice. He pulled off the highway immediately after he struck the ice and radioed the Beckley dispatcher to call the Department of Highways to send a cinder truck to that spot. He testified that he had not called earlier in the morning because
“As I previously testified, when there is a hazard in a general area, people have to live with it and they — everyone knows to be careful when it’s cold and when they know that the road is slick and everyone is careful. But I was especially concerned about it at 11 o’clock, because at that time the road was dry everywhere else. People were just zooming along there at the posted speed limit * * * and possibly beyond, but I knew that an accident was going to happen. One had already happened and I was highly suspicious that another one was going to happen because the roadway was dry from Beckley all the way to there and it was dry from the other end of the icy spot south. That was the only slick spot and it was just over the crest of the hill as you’re going north and I was concerned that there was going to be an accident because no one suspected it at that time of day with the sun out shining.”
Mrs. Cole testified that she was driving at approximately 35 miles per hour. She did not see the ice. She could not remember doing anything mechanically to the automobile. She stated that she had driven through this area on previous occasions and had noticed slick spots there.
Other witnesses for the claimants and for the respondent corroborated the fact that ice existed on the surface of the road where the accident occurred.
Corporal A. C. Bartlect, a member of the Department of Public Safety, testified about the scene where this accident occurred as follows:
Q “Was that a known bad spot along the highway in Raleigh County?
A Yes, it was.
Q And had you ever notified the Department of Highways yourself, personally, about that bad spot?
A No. I had been there for years and the spot had always been there.
Q Are you saying it was common knowledge?
A Yes.
Q And what was common knowledge about it?
A Well, whenever the weather —• when it got cold, it usual ly froze there, and it was always even in a little dry weather, there was still some water or something coming out through there, through the blacktop.
Q You don’t know — do you know where the water was coming from?
A No, I don’t. There’s a pond on one side and, of course, the hill on the other side, and I don’t have any idea.”
Following the decision in the case of Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947), this Court has repeatedly held that the State is not a guarantor of the safety of the travelers on its roads. “The State is not an insurer and its duty to travelers is a qualified one, namely, reasonable care and diligence in the maintenance of a highway under all circumstances.” Parsons v. State Road Comm’n., 8 Ct.Cl. 35 (1969). The State can neither be required nor expected to keep its highways absolutely free of ice and snow at all times, and the presence of an isolated ice patch on a highway during winter months is generally insufficient to charge the State with negligence. See 39 Am. Jur.2d Highways, Streets, and Bridges §506. See also Woofter v. State Road Comm’n., 2 Ct.Cl. 393 (1944); Christo v. Dotson, 151 W.Va. 696, 155 S.E.2d 571 (1967).
The facts of this claim reveal a common occurrence which exists throughout the mountainous terrain of West Virginia. Roads accumulate frost during cold winter nights. The frost remains on the surface of roads until it thaws. In areas shaded from the sun the surface of the roads naturally remain slick longer than unshaded areas. This condition is common on many of this State’s highways. Accordingly, the Court is of the opinion that the respondent was not negligent in the maintenance of Route 21. Although the Court is very sympathetic to the claimants, the Court is constrained to hold that, as there was lack of negligence on the part of the respondent in the maintenance of the highway, the claims must be denied.
Claims disallowed. | [
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HatcheR, Judge :
This is an action broughth by a Wholesale merchant against its. traveling salesman to recover of him advances, in excess of earned commissions. The contract between the parties stated a schedule of commissions the salesman was to receive, and then provided: “It is understood and agreed that you are to pay all expenses. We agree to advance weekly expense account, which amounts are to be charged against earned commissions. We agree to pay a drawing account of $200.00 per month, payable semi-monthly, which is to be charged against your earned commissions.” The 'employment continued for four years. Accounts of his expenditures were turned in weekly by defendant, which were promptly paid by plaintiff. The advances consistently exceeded the earned commissions throughout the entire period. No demand for the excess was ever made of defendant until his relation with plaintiff terminated.
Plaintiff sued for $5,232.73. This amount is composed of the excess with interest, and $160.50 admittedly due plaintiff on a note of defendant. Upon a demurrer to the evidence by the defendant, the jury found for the plaintiff the amount demanded, if tbe law be for it as to tbe excess, and $160.50 for it, if tbe law be for tbe defendant tbereon.
Tbe law supported by tbe weight of authority in respect to such contracts is stated in Labatt’s Master and Servant (2d ed.) 2 Vol., sec. 461, pages 1358-9: “Such contracts do. not, in tbe absence of an express stipulation to that effect, impose upon tbe employee a personal obligation to return tbe sums advanced to or withdrawn by him, in tbe event of bis not earning enough in commissions to off-set them. Accordingly if tbe amount of the advances or withdrawals exceeds tbe amount of the commissions earned by him, an action will not lie against him to recover tbe excess.” A like statement of this law is made in 2 C. J. Title “Agency,” sec. 452, page 787. It is restated with larger annotation in 39 C. J., Title “Master and Servant,” sec. 207, pages 153-4. Leading cases upholding this rule are Nelson v. Am. Bus. Bureau, 241 Ill. App. 432; Schlesinger v. Burland, 85 N. Y. S. 350; Luce v. Plantations Co., 195 Mass. 85; Newton W. & W. Co. v. Hocker (Tex.) 220 S. W. 233; Leiberman v. Weil, 141 Wis. 635; Arbaugh v. Shockney, 34 Ind. 268; Roofing Sales Co. v. Rose (N. J.) 137 Atl. 211. A few decisions are not.in harmony with the rule: Straus v. Cohen Bros. 160 Ill. A. 337; Martinez v. Cathey (Tex.) 215 S. W. 370; Clarke v. Eastern Adv. Co. 160 Me. 59 and Snellenberg v. Levitt, 282 Pa. 65. The first three may be differentiated from the general rule under the terms of the contract or the facts of each case. However, the Pa. decision bluntly held the employee personally liable for the excess of advances over commissions, for the reason that the contract failed to exonerate him from personal liability. The silence of a contract in this respect is regarded quite differently by proponents of the majority rule. Their view is forcefully expressed in N. W. Ins. Co. v. Mooney, 108 N. Y. 118 (123-4) as follows: “There is no express agreement on the part of Mooney to pay back the money; there is no agreement that its advance shall create an indebtednes on his part; no word signifying that he is to be a borrower, nor that the plaintiff will lend to him any money. * * *. It would have been much more natural to insert words signifying that to be the true character of the transaction, if it was so intended, than omit them. * * * It would have been a simple matter to have said that Mooney would repay the money, if that was the agreement, and that such or similar words were not used is one proof, among others, that the parties never intended to enter into such an agreement.”
Counsel for the plaintiff relies upon the statement in the contract that defendant is to pay all expenses. The course pursued by the parties does not indicate that they considered the defendant to be personally obligated. He did pay the expenses in the first instance, thereby doing what the strict letter of the contract exacted. But upon receipt Of his expense accounts, the plaintiff reimbursed him. These repayments quite evidently constitute the advances referred to in the contract. Personal responsibility is not consistent with the explicit covenant in the contract that the advances were to be charged, not to defendant, but against Ms earned commissions. We might treat the expression of that covenant as merely casual were it not repeated in the next sentence of the contract which charges the drawing account also against the earned commissions. In no place does the contract refer to personal liability. The earned commissions are the only source of reimbursement mentioned. Twice it stipulates that the advances are to be charged against them. The expression must be taken as intentional. In construing a somewhat similar contract, it was held: “The reiteration is impressive.” Clarks v. Eastern Adv. Co., supra, page 62.
We cannot construe this engagement to imply that all the risk was taken by the employee. We regard it rather as signifying a joint enterprise in which the employee furnished his time and ability and the employer furnished the money necessary to enable the employee to devote himself thereto. Both expected the adventure to produce a fund (the earned commissions) from which each would be fully compensated— the one for his time and labor, and the other for his money. The advances are therefore not regarded as loans to the employee but as speculations in a common enterprise. “In'its strictly etymological significance, the ‘advance’ of money would not imply a loan. Century Dictionary; 'Advance1; 1 Am. & Eng. Ency. of Law (2d ed.) 757. We speak of an advance of wages and an advance of salary, yet no one would regard this as a loan of so much money to the employee, which he has promised or is expected to repay. Again, for the purposes of a joint adventure, one agrees to give his services, and the other to* advance the capital required. No one would consider the former bound to repay the capital advanced out of his own means. Hence, without a promise to repay, express, or fairly to be implied from the agreement under which the advances were made, a promise to advance money for a particular purpose — as here, the- furtherance of the defendant’s business — does not import an expectation of its return personally by the person to whom the money was advanced.” Schlesinger v. Burland, supra, p. 351. See also Arbaugh v. Shockney, supra, p. 275.
No reason appears why this case should be excepted from the majority rule. We find no implication in the contract that the defendant is personally liable for the excess advanced. We therefore hold that the law is with the defendant on the demands of the plaintiff, except as to the item of $160.50 due on defendant’s note. The judgment of the lower court will be modified accordingly, and as modified affirmed.
Modified and affirmed. | [
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POFEEXBARGER, JUDGE :
This appeal from an order dissolving an injunction awarded to prevent the cutting of timber on a tract of land, the title to which is in dispute, pending an action, of ejectment to determine the title, would necessarily and inevitably fail under a rule or principle often declared by this Court, if we should adhere to it. Unless the trespass itself constitutes irreparable injury none is shown, for there is no allegation of insolvency of the trespasser nor of any other circumstance, precluding recovery of such compensation in money as the law gives, for the injury done and threatened, by an action.
In 1874, in the case of McMillan v. Ferrell, 7 W. Va. 223, this Court prescribed, as being essential and indispensable to a bill to prevent the cutting of timber, averments of good title in the plaintiff, trespass by the defendant and the insolvency of the latter or some other circumstance, rendering an action for damages futile or unavailing, and that doctrine has been uniformly maintained ever since. Curtin v. Stout, 57 W. Va. 271; Marcum v. Marcum, 57 W. Va. 285; Stephenson v. Burdett, 56 W. Va. 110; Burns v. Mearns, 47 W. Va. 744; Cresap v. Kemble, 26 W. Va. 603; Schoonover v. Bright, 24 W. Va. 698.
However, this rule seems not to have commanded uniform approval by the public, nor by the members of the legal profession, and, in later years, under conditions greatly enhancing the value of 'timber and altering, to a considerable extent, the method of handling R, the dissatisfaction has grown in extent and intensified in degree. Out of the great disfavor into which the rule has thus fallen, an insistent demand for its abolition has brought forth earnest, able and laborious inquiry as to the soundness of the reasoning upon which it was established, resulting in increased dissatisfaction, which has extended even to members of this Court, as will appear from official expressions of personal disapproval of the doctrine or principle of the line of decisions just mentioned.
Under these circumstances, we feel it our duty to.re-examine the proposition and thoroughly test its soundness by the application of legal and equitable principles. The chief restraint or limitation upon the overruling of decisions is the inexpediency and injustice of disturbing property rights. Hence, it has been said that a line of decisions enunciating a principle which has become a rule of property, or under which property rights have vested by reason of its observance and adoption in contracts, will not be overruled. Here, there is no such limitation. To abolish the rule or principle under consideration neither destroys nor impairs any property right or incident. On the contrary, the abolition thereof will conserve and protect such rights and incidents, 'for, no man can be said to have a property right in that which amounts to a trespass against his neighbor or a stranger. The effect will be to give the admitted and acknowledged property owner a more' complete remedy for the vindication of his property rights. We regard the rule as one pertaining to remedy only as regards the trespasser who is the sole beneficiary thereof. Hence, if the application of the test above mentioned shall disclose its unsoundness we shall feel entirely free to abrogate it. ' Having created or ordained it, this Court may consistently discard it, without injury to any person and to the great relief of property owners.
■ Supposed inadequacy of the -legal remedy for the cutting of timber, regarded as a mere trespass upon land, constitutes the basis of the rule. If the legal remedy is not adequate, the whole doctrine necessarily fails. Whether it is, must be determined by reference to the general policy of the law as disclosed by its application in analagous and related cases. In other words, we must see to what -extent the remedies afforded by courts of law and equity protect and vindicate the right of an owner of property to keep it in such condition as he desires. If we find the general object to be the maintenance of this right, respecting all other kinds of property, we must necessarily say it ought to extend to the right of an owner of timber to allow it to stand upon his land in its natural state as long as he desires it to do so. Timber cut down and converted into mere logs and lumber is plainly not the same thing as standing timber. It is equally manifest that the legal remedies are wholly inadequate to re-convert logs and lumber into live, standing grow-' ing trees. Our rule permits a mere trespasser. to utterly destroy the forest of his neighbor, provided he is solvent and able to respond in damages to the extent of the value thereof. It can neither restore the forest, nor prevent its destruction It allows the property to be wholly altered in nature and character or converts it into a mere claim for damages. After the timber has been cut, the owner may recover possession thereof by an action of detinue,- or, waiving that, may recover its value, but this does not, in either ease, restore the property to its former state, nor replace it by the return of an equivalent. The general principles of English and American jurisprudence forbid such a result. They guarantee to the owner of property the right not only to the possession thereof and dominion over it, but also its immunity from injury,' unless it be of such character that it may be substantially replaced. On the theory of adequacy of the legal remedy, an injunction to prevent the sale or destruction of certain kinds of personal property will be refused, but the principles upon which this conclusion stand cannot be extended to all forms of property either real or personal, and the courts do not attempt so to extend it. Compensation in damages is adequate in all those instances in which the property injured or destroyed may' be substantially replaced with the money recovered as its value. For instance, the world is full of horses, cattle, sheep, hogs, lumber and many other articles. Ordinarily, one of these may be re-placed by another just as good. This principle is applied in a proceeding for specific performance of contracts for the sale of corporate stocks. If the stock belongs to a class found generally in the market for sale, equity refuses specific performance of the contract, because other stock of the same kind can be purchased with the-money recovered as damages. If, on the other hand, the stock is limited and unobtainable in the market, specific performance will be enforced. Similarly, as no two pieces "of land can be regarded as equivalent in value and character in all respects, equity will always enforce specific performance of a valid contract for the sale thereof. If personal property possesses a value peculiar to its owner, or, as it is generally expressed, has a prelium affeclionis, equity will vindicate and uphold the right to the possession thereof and immunity from injury, by the exercise of its extraordinary powers. We observe also that the law gives a remedy for the possession of personal property, however trivial its value or character may be. It does not limit the owner to a claim for damage, unless the property has gone beyond the reach of its process. As equity follows the law, and, as far as possible, supplies omissions therein, so far as may be necessary to the effectuation of substantial justice, it vindicates the right of an owner to enjoy his property without injury or molestation by the exercise of its preventive powers; but, harmonizing with the great Divine rule of help to those who help themselves, equity goes no further than is necessary. Therefore, if a man threatens to take away or kill his neighbor’s horse a court of equity will not interfere by injunction, because the owner may recover the value of that horse and buy another in the general market of substantially the same kind or value. For the same reason, it refuses to enforce specific performance of a contract of sale of a horse. But, if a man is about to destroy his neighbor’s heirlooms, things having a peculiar value and insusceptible of re-placement by purchase in the market, the legal remedy is not adequate and a court of equity will, therefore, protect the possession and title of the owner by the exercise of its extraordinary power. Again, the owner of a fund, misappropriated or diverted by a trustee or other custodian thereof, or the owner of a fund representing the proceeds of property wrongfully taken from him, may in equity follow that fund up and charge the amount thereof upon property into which it has been' invested,'even though he has a right of action at law against the trustee, custodian or wrong-doer. So a creditor, having a lien upon a particular fund or particular property for his debt, may charge that fund in equity, and will not be turned away, merely because he has the right of action in a court of law against the debtor. In all these cases, the remedy by law is inadequate, because it does not enforce the right of the injured party to the full extent thereof. Such being the general policy of the law, do we not violate it by denying to the owner of standing timber his clear and indisputable legal right to have it remain upon his land until such time as he shall see fit to convert it into a different kind of property? Moreover, standing timber is everywhere regarded as part of the real estate upon which it grows. The cutting thereof converts it into personal property and wholly changes its legal nature and incidents. Being a part of the land itself, it has no legal equivalent in nature or value, for no two pieces of land are alike in all respects, nor is a piece of land, stripped of its timber, with a right of action for the felled timber or for damages, the equivalent of the same land with the timber on it. Courts universally hold that all contracts relating to real estate are subjects of equitable cognizance, because they relate to real estate. A distinction is made between contractual rights respecting real estate and liability growing out of trespasses thereon. Because of the relation of landlord and tenant, a court of equity will always prevent such misuse of the property by the tenant as amounts to waste and injury to the freehold. Nevertheless, this Court and others have denied the same sort of relief in cases of like injury by trespassers. The wrong-done by a tenant and that done by a stranger, being of the same character and of equal gravity, courts of equity grant' relief in the one ease and deny it in the other, .upon the theory of adequacy of the legal remedy in the one and inadequacy thereof in the other. This difference rests, to some extent, upon reason and legal principle. A landlord cannot sue his tenant in ejectment or unlawful detainer and recover possession while the term lasts. In the case of a stranger, he may sue at any time. It does not follow, however, that the legal remedy against the stranger is adequate. The argument amounts only to this, that there is a legal remedy in the one case and none in the other. It does not extend to the question of adequacy of the remedy in the case in which there is one, for the reasons we have stated. Of course the legal remedy is adequate, if the trespass amounts to nothing more than the trampling of the grass or throwing down of the fences, acts in no way affecting the substance of the estate, but the adequacy of the remedy in such eases does not argue efficacy in those cases in which part of the real estate is actually severed and carried away to the injury and detriment of the inheritance. In Whitehouse v. Jones, 60 W. Va. 680, 690, Judge Bean-kw condemned the rule now under consideration in the following terms: “It seems to me that this doctrine is now, always has been, unsound. Timber is of such inestimable value for building and repairing houses and fences, for fuel and other purposes. It takes half a century of more to regrow it when once removed. A trespasser, without title, cuts it to-day, tomorrow and on. Must you sue him in suit after suit for each day’s or week’s .depredation? Or will you wait until he gets through, then have a long law suit? The timber is gone forever, the party has become insolvent. The remedy is not full and adequate.”
Upon the principles and considerations here stated, we are of the opinion that the adoption of this rule was a deviation from fundamental principles of our jurisprudence. It is no doubt attributable to a lack of appreciation of tire true character of timber, due to its former abundance and comparative worthlessness. In early days, it was regarded as an encumbrance and burden upon lands. Having nothing but forests, the chief object or purpose of land owners everywhere was to get rid of the forests and prepare their lands for agriculture. There was an abundance of timber and no market for it. The soil was untillable because of the timber. Hence, it was a common practice for owners to cut down the finest of timber, faultless oak, poplar, pine, walnut and hickory, and burn it upon the premises in log heaps, upon the theory of a disposition of an encumbrance and obstacle to the growth and development of agriculture as a pursuit. Anybody who desired to cut a tree on his neighbor’s land, in the pursuit of wild animals or the search for' deposits of honey, had a tacit permission to do so. Forest fires were not regarded as evils unless they happened to destroy fences, buildings or other improvements or agricultural implements or products. Timber was not regarded as anything more than an ordinary commercial article and almost worthless because of its abundance. The prevalence of this estimate of its character was naturally calculated subtlely to influence the minds of the judiciary, for the judges were men then as they now are and always have been, mingling with the populace and insensibly and unconsciously absorbing, to a greater or less extent the prevailing sentiment of the people. The error, thus born, has been revealed by the great chahge of conditions. Tiniber having become scarce and of great value, the layman, lawyer and judge has, in recent years, given the subject more careful, critical and profound consideration, with the result that the error is practically admitted everywhere.
Violative of principle,- as we think, the rule is also contrary to the great weight of authority. In the general ■ struggle for relief from it, courts have, in some instances, based distinctions upon the relative values of the timber and the land, saying- the cutting of the timber, constituting the chief value of the land, will be enjoined, but we think a clear case of trespass by the cutting of timber should always be enjoined. In one sense, a small quantity of timber on land is more indispensable to its enjoyment than a large quantity. As to the weight of authority, see 5 Pom. Eq. Jur., sec. 495; 22 Cye. 832; High Inj., secs. 671 to 679.
Our conclusion, treating growing timber as part of the real estate and placing it on the basis of minerals, applies the law enunciated in Freer v. Davis, 52 W. Va. 1, allowing an injunction to prevent irreparable injury, pending the determination of a dispute as to title by an action at law. This suit for an injunction was ancillary to an action of ejectment pending between the parties for that purpose.
On the motion, to dissolve the injunction, a verdict in favor of the defendants in the action of ejectment was read, and it is here invoked in justification of the decree appealed from. In our opinion, it has not such force and effect. The order recording it is interlocutory. Though the verdict constitutes a basis for judgment, it is not a judgment. Besides, it may be set aside and thus wholly fail. It is said a'motion to set this verdict aside was pending, but that, as it was not incorporated in this record, it cannot be considered. Deeming nothing short of a judgment conclusive of the question of title, we refrain from discussion of the question of practice. We know, as matter of law, the verdict alone is not a final adjudication and are not at liberty to forecast the final action of the trial court. Presumptively the verdict is right, but, to be effective as a mater of adjudication, it must be carried into judgment.
Por the reasons here stated, the decree complained- of will be reversed, the injunction re-instated and the cause remanded.
Reversed and Remanded.
BRannon, Judge:
This note does not evince any dissatisfaction with the opinion prepared by Judge PofeenbaegeR. I write it only to give a short personal reason why I agree to overrule many decisions denying equity jurisdiction by injunction against cutting timber, in addition to those given by Judge PoeeenbaRGER. I am averse to overrule decisions; but the rule of those decisions is so bad that it ought not to stand. I expressed my dissatisfaction with the rule denying injunction on page 690 of 60 W. Va. in case of Whitehouse v. Jones. 1 write this note to say that a strong rule or argument to justify a court in overruling . an erroneous decision is this, that when the continued operation of the erroneous decision will do more harm than would its overruling, it should be overruled. I referred to this rule in any opinion in Weston v. Ralston, 48 W. Va., page 180. I find the case of Calhoun Co. v. The Ajax Co., 27 Colo. 1, laying down that position. It holds: “A. wrong decision should, not be followed unless it has been a rule of action so long, and relied upon to such an extent, that greater injustice and injury will result from a reversal, though wrong, than to observe and follow it.” The erroneous decisions overruled in this case have been running on doing mischief all the time. Overruling them will avoid that mischief and do no harm, especially as it only relates to remedy. | [
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Snyder, Judge:
Suit in equity brought in the Circuit Court of Mason county" in July, 1883, by Michael Gallagher against Hugh Gallagher and others to compel the specific performance of an alleged parol contract for the sale of real estate. The defendants answered the bill. Depositions and exhibits were filed on which the cause was heard, and on February 17,1885, the court entered a final decree ordering the specific execution of said contract, and directing a conveyance of the real estate by the defendant, Hugh Gallagher, to the plaintiff. From this decree said defendant has obtained this appeal.
The plaintiff’s bill alleges that some time in the year 1878 the appellant, Hugh Gallagher, who is the father of the plaintiff, purchased a house and lot in Hartford City, Mason county, which is fully described, from the Hartford City Goal & Salt Go., and paid a part of the purchase money thereon, but finding he would be unable to pay the balance, agreed with the plaintiff that if he would pay said balance of the purchase-money the deed therefor should be made by said company to him, the plaintiff, thereby selling his equitable interest in said property to the plaintiff; that in pursuance of said agreement the plaintiff took possession of the property, made valuable improvements upon it, and paid to said company about $500 in full of the balance due on the original purchase; that said company is ready and willing to make the plaintiff a deed for the property, but the appellant refuses to permit it to do so.
The appellant, in his answer, positively denies that he ever sold said property to the plaintiff, or made any such contract with him as is alleged in the bill; he denies that the plaintiff was ever put in possession of the property, or that he made any improvements thereon ; he also denies that the plaintiff ever had any interest, legal or equitable, in the property, or that he paid $500 on the purchase thereof.
The proofs in the cause show that in the year 1859 or 1860 the appellant purchased from said company a part of the lot in controversy at the price of $100; that he was put in possession of the same, and built a house and made other improvements thereon, and has lived in said house ever since; that soon after the first purchase he agreed to purchase the residue of the lot, constituting the whole of lots Nos. 23 and 24 of said town, at the price also of $100, making $200 for the whole; that before the year 1878 he had paid in full for said first purchase, but still owed the price of the second purchase with its accumulated interest; that in the fall of 1878, about the time his son, the plaintiff, became of age, he made an arrangement with the president of said company, by which his son should work for it, and that the balance due on the property was to be taken out of the son’s wages. The books of the company show that from March, 1879, to October, 1880, the plaintiff’s wages are credited with the aggregate sum of $300, on account of this property. At the time these wages were earned the father and son were both living together in the house on the property as they had been before and after the alleged purchase by the son was made. The father was engaged in cultivating some rented land, raising corn and hogs, and butchering.
About these facts there is no room for controversy; but there is a direct and irreconcilable conflict between the testimony of the plaintiff and appellant as to whether or not there ever was any contract or agreement for the sale of the property to the plaintiff, and also in regard to the arrangement by which the wages of the plaintiff were used to pay the balance due on the property. The appellant testifies positively that no such contract was ever made, and in regard to the use of the plaintiff’s wages to pay the balance due from him on the property, he testifies that it was agreed between him and the plaintiff that the latter should work for the company and pay the debt on the property, and he, the appellant, would board and pay him an equal amount in money out of the sale of his hogs and other means, and that he did so pay him the full amount of the wages so used and much more; and there is other evidence to prove that he sold hogs at diffei’ent times and received money therefor to an amount more than sufficient to repay the plaintiff the sum taken from his wages to pay on the property, and that a large part of this money was in fact paid over to the plaintiff. On the other hand, the son testifies that there was a positive contract that the property was to be conveyed to him, and that the hogs which his father sold and the proceeds of which were paid to him were his own hogs and not his father’s.
On these controverted matters there is little or no corroborating testimony, though the attendant facts and circumstances tend to sustain the father rather than the son. But I do not deem it necessary to refer to these, because in a suit of this character, unless the contract stated in the bill is established by a clear preponderance of evidence, the court will not enforce it. If the evidence is conflicting, and it is not clear that a contract was in fact made, a bill for specific performance will be dismissed. Haskin v. Insurance Co., 78 Va. 700; Graham v. Hendren, 5 Munf. 185; Baldenberg v. Warden, 14 W. Va. 397.
But if it were admitted not only that there was a contract of sale, but also that the purchaser had paid the purchase-money, still the plaintiif would not be entitled to relief in this suit. The principles, upon which courts of equity will avoid the statute of frauds on the ground of part pei’formance of a parol contract for the sale of land, are now as well settled as any of the acknowledged doctrines of equity jurisprudence. To entitle a party to relief in such cases it must appear — 'first, that the contract relied on is certain and definite in its terms; seeond, the acts proved in part performance must refer to, result from or be made in pursuance of, the contract proved; and, third, the contract must have been so far executed that a refusal of full execution would operate a fraud upon the purchaser, and place him in a situation which does not lie in compensation. Campbell v. Fetterman, 20 W. Va. 398, 304; Wright v. Puckett, 22 Gratt. 370; Lead.Cas.Eq. (2d Amer. Ed.)top pp.557-574. It is now settled that the payment by the purchaser to the vendor of the whole or a part, whether substantial or unsubstantial, of the purchase-money is not an act of part performance which will take the parol contract out of the statute. Jackson v. Cutright, 5 Munf. 308; Fry. Spec. Perf. § 403; 2 Story Eq. Jur. 760.
The fraud, which will entitle the purchaser to a specific performance, is that which consists in setting up the statute against the performance, after the purchaser has been induced to make expenditures, or a change of situation in regard to the subject-matter of the agreement upon the supposition that it was to be carried into execution, and the assumption of rights thereby to be acquired ; so that the refusal to complete the execution of the agreement is not merely a denial of rights which it was intended to confer, but the infliction of an unjust and unconscientious injury and loss. In such case the vendor is held by force of his acts or silent acquiescence, which have misled the purchaser to his harm, to be estopped from setting up the statute of frauds; therefore, a purchaser seeking the performance of such agreement must be able to show clearly not only the terms of the contract, but also such acts and conduct of the vendor as a court would hold to amount to a representation that he proposed to stand by his agreement, and not avail himself of the statute to escape its performance; and also that the purchaser, in reliance on this representation, has proceeded, either in performance or pursuance of this contract, to so far alter his position as to incur “ an unjust and unconscientious injury and loss,” in case the vendor is permitted after all to rely upon the statutory defence. Browne, St. Frauds, § 457a ; Glass v. Hulbert, 102 Mass. 34; Swain v. Seamens, 9 Wall. 254. From this it is apparent that the payment of the purchase-money is not such part performance as would entitle the purchaser to specific execution, because the money may be recovered back at law, and the parties be thus restored to their original position-; and therefore it does not put the purchaser in such a position that he will suffer “ an unjustice and unconscientious injury and loss” if the contract is not enforced. 2 Story Eq. Jur. § 761.
Possession is an important element in the enforcement of such contracts. Possession alone will, under some circumstances, entitle the purchaser to a decree for specific performance. Harris v. Crenshaw, 3 Rand. 14; 2 Story, Eq. Jur. § 761. In all cases in which possession, either as delivered by the vendor, or assumed by the purchaser, is relied upon, it must appear to be a notorious and exclusive possession of the land claimed, and to have been delivered or assumed in pursuance of the contract alleged, and so retained or continued. Where the purchaser moves upon the premises and remains there in company with the previous occupant, not as the ostensible and exclusive px-oprietor, or where the metes and bounds of the land alleged to be purchased are not fixed and recognized and the purchaser occupies it in common with adjacent land of his own, such possession, as an act of- part performance, will not be sufficient to entitle the purchaser to specific performance. Fry v. Shepler, 7 Pa. St. 91; Haslet v. Haslet, 6 Watts, 464; Browne, St. Frauds, §§ 467-486.
It is always regarded as strongly confirmatory of the rights of a purchaser seeking the specific execution of a verbal contract for an estate in land that he has proceeded, upon the faith of the contract and with a knowledge of the vendor, to expend money in the improvement of the land. But the improvements relied upon must be of a character permanently beneficial to the land, and involving a sacrifice to the purchaser who made them. Although the improvements are required to be beneficial to the land, a court of equity will not inquire whether the expenditures have been judiciously or injudiciously made, or whether the money has been well or ill laid out. Davenport v. Mason, 15 Mass. 85; Whitehead v. Brockhurst, 1 Brown Ch’y 417. It must appear, however, that the loss of his improvements would be a sacrifice to the purchaser. If, therefore, he had gained more by the possession and use of the land than he has lost by his improvements, or if he has been in fact fully compensated for the improvements, they will not be avail able to him as a ground for specific execution. Browne St. Frauds, §§ 487-491.
In the case at bar, the plaintiff has wholly failed to prove either that he ever had the exclusive possession of the property in controversy, or that he made any permanent improvements upon it. In respect to these matters, the plaintiff, in answer to the question, “ State how the defendant, Hugh Gallagher, was living there after you took possession of the property,” testifies, “ we were both living there together on what I made until 1 became of age. After I became of age, the contract for the land was made, and we have lived in the same condition ever since up to October 10, 1882. I went off and boarded for a couple of months before I was married, and then I went there to live. He lived some three or four months with us, and then to himself, in the same house.” And in reply to the question as to what improvements he had put upon the property since he took possession, the plaintiff testifies as follows : “ I paid for the stripping the doors and for locks for same and built a well frame on the premises and put a bucket in the well or to a rope.” This is the only evidence in the record in regard to the character of the possession of the property by the plain tiff and of the improvements made thereon by him. It clearly shows that the appellant never surrendered the possession, and that the plaintiff never had the exclusive possession as ijurchaser or otherwise. The alleged improvements were merely repairs of the most trifling character and not improvements at all.
According to the principles herein before announced and the authorities cited, the plaintiff has had no such possession of the property nor had he made such improvements thereon as would entitle him to a specific execution of his alleged contract of purchase, even if he had clearly shown, as he has not, that a contract of sale had been actually made, and in pursuance of it he had paid the purchase-money in full, for the reason that he has an ample remedy at law to recover back his purchase-money, and thus he could be fully compensated and restored to his original position. I am therefore of opinion that the decree of the Circuit Court should be reversed, and the plaintiff’s bill dismissed.
REVERSED. | [
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Berry, Judge:
This action was instituted in the Circuit Court of Mon-ongalia County by the plaintiffs, Joe Konchesky and Anna Konchesky; against S. J. Groves and Sons, Inc., a Corporation, and two other defendants, to recover’ damages to property owned by the plaintiffs, alleged to have been caused as the result of blasting operations at the Morgan-town Airport in Monongalia County,’ West Virginia, in an area known as “the Mileground”, located near the City of Morgantown. The buildings owned by the plaintiffs were located quite some distance from the airport and the damage in question was allegedly caused by vibration as a result of the blasting. Two of the defendants were dismissed from this action by stipulation of the parties under Rule 41 (a), (I), (II), Rules of Civil Procedure.
The case proceeded to trial against the defendant Groves and at the completion of the plaintiffs’ evidence upon motion of the defendant for a directed verdict, which was resisted by the plaintiffs, the trial court sustained said motion and the jury returned a verdict in favor of the defendant and judgment was entered thereon September 29, 1962. The order recording the directed verdict and the judgment did not contain specific objection by the plaintiff to such action by the court, although the record indicates that said order was entered on the same day after the attorney for the plaintiffs resisted the motion. This argument, which is contained in the record, clearly indicates objection on behalf of the plaintiffs as to the granting thereof.
Upon application to this Court by the plaintiffs, an appeal and supersedeas was granted on June 24, 1963, to the judgment of the Circuit Court of Monongalia County of September 29, 1962.
The plaintiffs owned four houses designated in the record as “pink house”, “brick house”, “Gray house”, and “green house”, as well as a store building known as “Joe’s Place”, all of which were located in the area known as “the Mileground”, and across the road from where the airport was being constructed, the location of the buildings varying in distance of about 400 feet to about 1750 feet from said construction. There were other buildings in this area located at similar distances from the airport. Witnesses who testified on behalf of the plaintiffs, and who lived in some of the houses alleged to have been damaged by the blasting, testified that there were some cracks in the buildings and walks before the blasting.
Only one of the plaintiffs, Anna Konchesky, testified during the trial of this case. This plaintiff testified that there was nothing wrong with any of the buildings before the blasting, but that within a short time thereafter cracks and defects appeared in the buildings. However, other witnesses had said there was previous damage, and contractors who testified on behalf of the plaintiffs with regard to the cost of repairing the damages to the buildings were unable to separate the old damage from any new damage, testifying generally as to the cost of repairing all the damage of any nature to the four houses. The estimated damage done to the business building known as “Joe’s Place” was the cost of reconstructing a completely new building, without any attempt being made whatsoever at estimating the value of the building either before or after the alleged damage caused by the blasting. No attempt was made to introduce testimony as to the market value of any of the buildings involved before and after the damage in question. The entire proof of damages done to the four houses was based on the oral testimony of the contractors as to the total amount of cost to repair the damaged areas of the buildings. No attempt was made during the trial to submit itemized estimates of the cost of repairs of such damages.
The trial court directed the verdict to be returned in favor of the defendant because damages had not been properly proved by the plaintiffs during the trial so as to warrant recovery.
The errors assigned in this Court by the appellants, the plaintiffs below, can be consolidated into one assignment, that is, that the trial court erred in directing a verdict in favor of the defendant on the grounds that it was contrary to the law and evidence. The appellee, defendant below, cross assigned error in this Court asserting that the appeal was improvidently granted because of the failure of the plaintiffs below to request that a specific objection be inserted in the final order of September 29, 1962, wherein judgment was entered against them.
It will be necessary to consider the cross assignment of error by the appellee first, because if it prevails it would then be necessary to dismiss the appeal as improvidently awarded, and the assignment of error by the appellants would not be reached.
It is true that it has always been necessary for a party to object or except in some manner to the ruling of a trial court, in order to give said court an opportunity to rule on such objection before this Court will consider such matter on appeal. Town of Oceana v. Cook, 63 W. Va. 296, 60 S. E. 145; Hinton Milling Company v. New River Mill ing Company, 78 W. Va. 314, 88 S. E. 1079; State v. John, 103 W. Va. 148, 136 S. E. 842; Oil Service Company v. Detroit Fidelity & Surety Company, 105 W. Va. 130, 141 S. E. 626; Bell v. Huntington Development & Gas Company, 106 W. Va. 155, 145 S. E. 165; Harmon v. Spurlock, 121 W. Va. 633, 5 S. E. 2d 797; State v. Cruikshank, 138 W. Va. 332, 76 S. E. 2d 744.
This matter is now governed by Rule 46 of the West Virginia Rules of, Civil Procedure, which reads as follows:
“Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.”
It will be noted that this Rule clearly shows that formal exceptions are unnecessary, but parties must still make it clear that they object to the ruling or order of the court in order to preserve such matter for appeal. Exceptions to the action of the trial court may now be made by the parties under this Rule by making it known to the court the action which is desired of the court or by an objection being made to the action taken by the court and the grounds therefor; and, if a party has no opportunity to object to the ruling or order at the time it is made, the absence of an objection is not prejudicial on appeal. Rule 46 of the West Virginia Rules of Civil Procedure is in the identical language as Rule 46 of the Federal Rules of Civil Procedure governing such matters, and the authorities construing Federal Rule 46 hold that although exceptions are unnecessary by this Rule, it is still necessary for objections to be made. Pfau v. Whitcover, 139 F. 2d 588; Monaghan v. Hill, 140 F. 2d 31; United States v. Vater, 259 F. 2d 667.
However, this Rule provides that it is sufficient if a party against whom a ruling is made opposes the action taken by the court at the time and indicates the action which he desires, or, if such party did not have an opportunity to object at the time any ruling or order was made by the trial court on a motion of the opposing party, no objection or exception is required, and an appellate court may consider the alleged error even though no formal objection or exception was made or taken. 2b, Barron and Holtzoff, Federal Practice and Procedure, (1961 Ed.), §1021; Hasselbrink v. Speelman, 246 F. 2d 34. Of course, the safest procedure to avoid the argument that has arisen in this case is to insist upon an unmistakable objection or exception on behalf of the losing party to be placed in every order deciding a point on which the parties have disagreed if such party has the opportunity to do so.
It will therefore be seen that under the circumstances involved in the case at bar, wherein the record clearly indicates that a full discussion on the motion to direct a verdict was had in which the attorney for the appellants, plaintiffs below, stated his grounds in objection to said motion and to the ruling of the court in sustaining said motion, there was no necessity for a formal objection to be contained in the order of the court sustaining the motion and rendering judgment on the verdict directed by the court. Under this interpretation of the Rule in question, which is supported by the authorities construing the Federal Rule and which is in the same language and copied into the West Virginia Rule, it is considered that an objection had been made and the court had an opportunity to make a correct ruling on the legal question involved, and the reason for such objections to be made, as indicated in the prior decided cases relative to such matters, is preserved. 2b, Barron and Holtzoff, Federal Practice and Procedure, (1961 Ed.), §1021; 5 Moore’s Federal Practice, 2nd Edition, §46.02. For these reasons, the cross assignment of error by the appellee, defendant below, is not well taken and the appeal was properly granted.
We will now discuss the assignment of error by the appellants, plaintiffs below, that the court erred in directing a verdict in favor of the defendant, that the verdict was contrary to the law and evidence, because there was not proper proof of damages to submit the case to the jury.
Liability in blasting cases, if properly proved, has been held to be absolute. Whitney v. Ralph Myers Contracting Corporation, 146 W. Va. 130, 118 S. E. 2d 622. However, without proper proof of damages, no recovery can be had in any case. 5 M.J., Damages, Section 92; Steel v. American Oil Development Company, 80 W. Va. 206, 92 S. E. 410, L.R.A. 1917E 975; Chesapeake & Ohio Railway v. Allen, 113 W. Va. 691, 169 S. E. 610; Turk v. McKinney, 132 W. Va. 460, 52 S. E. 2d 388; Ripley v. C. I. Whitten Transfer Company, 135 W. Va. 419, 63 S. E. 2d 626. In the instant case the evidence is wholly inadequate to support any verdict or judgment for damages. The plaintiffs evidence indicated that there was old and new damage to the buildings in question, that some of the damage claimed was present before the blasting was done and no separation of such damage was attempted to be made. No itemized estimate of the alleged damage was introduced into evidence and only the total amount of the cost of repairs to all of the damage, with general statements as to areas relating to the four houses in question, was contained in the estimates.
The general rule in determining the amount of damages for injury to real property in a case of this kind is to allow the difference between the market value of the plaintiff’s premises before the injury happened and the market value immediately after the injury, taking into account only the damages which had resulted from the defendant’s acts. 15 Am. Jur., Damages, Section 109; Stewart v. Baltimore and O. R. Co., 33 W. Va. 88, 10 S. E. 26; Swick v. Coal and Coke Co., 122 W. Va. 151, 7 S. E. 2d 697; Stenger v. Gas Co., 139 W. Va. 549, 80 S. E. 2d 889. The reasonable cost of repairs, if properly proved, can be considered as evidence in determining the market value of property, after it has been damaged, but the jury in any case of this nature is not warranted in awarding damages where the evidence is speculative, conjectural or uncertain as to the amount of damages. Ripley v. C. I. Whitten Transfer Company, supra. The actual existence and the amount of damage must be disclosed with reasonable cer tainty. Stone v. Gillbert, 133 W. Va. 365, 56 S. E. 2d 201. Where proof of damage, considered on general statements rather than on actual estimates of the cost to repair the damage in any given case is vague, indefinite and speculative, no recovery can be had thereon. Tingler v. Lahti, 87 W. Va. 499, 105 S. E. 810; Ripley v. C. I. Whitten Transfer Company, supra. Thus, it can be readily seen that the proof as to the alleged damage done to the four houses was not properly proved in order to warrant recovery therefor.
The evidence with regard to the damage done to the building housing the business known as “Joe’s Place” was the cost to construct a new building which it was claimed would cost about $16,000. The evidence of the plaintiffs’ witnesses was that this building was completely destroyed, and there was no attempt to prove the market value of the building at the time of its destruction. Nor was there any attempt made to furnish an itemized statement of the cost to repair the building. If the cost to restore buildings is more than the value of the building at the time of the injury, damages cannot be recovered in such case on the cost to repair the building. The proper method of proving damages in this instance is clearly set out in point 9, syllabus, of the case of Mullins v. Baker, 144 W. Va. 92, 107 S. E. 2d 57, which reads as follows: “ ‘When property is completely destroyed, the amount of recovery is measured by the market value at the time of the destruction. Stenger v. Gas Co., 141 W. Va. 347.’” The evidence as to this building completely failed to meet the proper measure of damages necessary in a case of this kind. Stenger v. Gas Co., 141 W. Va. 347, 90 S. E. 2d 261; Mullins v. Baker, 144 W. Va. 92, 107 S. E. 2d 57; Butler v. Smith’s Transfer Corp., 147 W. Va. 402, 128 S. E. 2d 32.
For the reasons stated herein, the judgment of the Circuit Court of Monongalia County is affirmed.
Affirmed. | [
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Cox, Judge:
This is a writ of error by the Colonial Fire Insurance Company to a judgment of the circuit court of Wood county, for one thousand dollars rendered against it in favor of J. W, Tucker, in an action of assumpsit upon a fire insurance policy. The declaration is in statutory form. The first of the many errors assigned, is the admission in evidence of the policy sued on, or rather a copy of the policy, the original being so charred by the fire that to have opened it would have resulted in its destruction. The objection is not on the ground that a copy was introduced, but on the ground that the copy when produced, varied from the statement of the nature of the plaintiff’s claim, filed under section 62 of chapter 125 of the Code. The statement is as follows:
“The Colonial Fire Insurance, to J. W. Tucker Dr.
To amount of the policy on stock of goods in the store at Burning Springs, Wirt County, West Virginia. $1,000.00
To amount of goods and fixtures in the store at Burning Springs, Wirt County, West Virginia, covered hy the policy at the time of loss, to-wit: On the 16th day of September, 1901... $6,900.00.”
The policy sued on covered only the stock of merchandise and not the fixtures. The policy is a part of the declaration and discloses this fact. The statement filed includes more than the policy by charging also for the fixtures. This statement ivas filed without objection on the part of the defendant and the parties went to trial upon it. Statements under sections 62 and 64 of this chapter are not pleadings but are in the nature of bills of particulars. Cappellar v. Queen Ins. Co., 21 W. Va. 576; Rosenthal v. Scottish Union Ins. Co., 46 S. E. Rep., 1021. Such statements are sufficient if they in effect give to the party reasonable notice of the nature of his adversary’s claim, or defense, as the case may be. The objection here is not that the statement is too vague, but that it includes too much. It is apparent that the defendant by this statement was notified that the plaintiff would claim to the extent of the face of the policy, the amount of the stock of merchandise covered by the policy, and, in addition, the amount of the fixtures not covered by the policy. The defendant being notified that it would be held for everything covered by the policy, it was entirely proper to admit the policy in evidence, and no variance resulted. The addition of the words “and fixtures,” should be considered immaterial and treated as surplusage.
The defendant filed a plea denying liability, and also a statement under section 64 of chapter 125 of the Code, specifying that plaintiff had failed to perform certain clauses of the policy, whereby defendant claimed that plaintiff had forfeited all claims under the policy, and was barred from recovering. The statements and specifications of defense are as follows:
“The defense in the above cause, being with other things, that the action cannot be maintained because of the failure to perform and comply with and for the violation of certain clauses, conditions and warranties, provisions and stipulations in the policy sued on. The defendant here specifies the particular clauses, conditions, warranties, specifications and stipulations, in respect to which such failure or violation is claimed to have occurred, which are as follows:
“First. ‘It is expressly stipulated that the assured shall take an inventory of the stock hereby covered, at least once a year, during the life of this policy, and shall keep books of account correctly detailing purchases and sales of said stock, and shall keep said inventory and books securely locked in an iron safe, or away from building and at a safe distance during the hours that said store is closed for business. Failure to observe these conditions, shall work a forfeiture of all claims under this policy. ’ It is contended (a) that no inventory of stock covered by said policy was taken during the life of said policy; and (b) that no books of account, correctly detailing purchases and sales of said stock-, were kept by the plaintiff, as required by such policy.
“Second. ‘The insured as often as required, shall exhibit to any person designated by this company all the remains of any property herein described, and submit to examination, under oath, by any person named by this company, and subscribe the same, and as often as required shall produce for examination all books of account, bills, invoices and other vouchers, or certified copies thereof if the original be lost, at such reasonable place as may be designated by this company or its representative, and shall permit extracts and copies thereof to be made. ’ It is claimed by the defendant that on, to-wit, November 23rd, 1902, Chas. W. Blair, a person designated by the 'defendant company within the meaning of said provision, of said policy, by letter dated Huntington, West Virginia, November 23rd, 1902, required the plaintiff to comply with the foregoing provision of said policy, and to submit to the said Chas. W. Blair for examination, at the Florentine, Huntington, West Virginia, all books of account, bills, invoices and other vouchers, and certified copies of the same if originals be lost, in order to ascertain the exact amount of stock on hand at the time of fire, which place so mentioned was a reasonable place and town, and it will be shown that said plaintiff, J. W. Tucker, failed to comply with said requirement, in this, that he failed to produce the bills, invoices and other vouchers, or certified copies of the same where originals were claimed to be lost, and failed to produce books of account which showed the exact amount of stock on hand at the time of said fire, so that the liability of this company under the provision of said policy could be ascertained.
“Third. ‘No suit or action on this policy for the recovery of any claim shall be sustained in any court of law or equity, until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months after the fire. ’ It will be claimed on the trial of said cause, that said plaintiff by this provision of the policy, is not entitled to maintain this suit thereon, for the reason that he has failed in the particulars mentioned in the first and second above specifications.”
To this statement and these specifications of defense, the plaintiff filed a statement of matters relied upon by him in waiver or estoppel on the part of defendant. These statements and specifications limited the extent of the issue in this case. The plaintiff was not put upon proof of compliance with any clause, condition or warranty of the policy which the defendant had not specified plaintiff’s failure to perform. Rosenthal v. Scottish Union Ins. Co., supra. It will be observed that the whole of the “Iron Safe Clause,” was quoted in the statement, but the only parts of it which defendant specified that plaintiff had failed to perform, were two: (a) That no inventory of stock covered by said policy was taken during the life of said policy; and (b) That no books of account correctly. detailing purchases and sales of said stock, were kept by the plaintiff as required by such policy.
We desire first to notice the specifications as to the failure to take an inventory. This policy bears date on the 15th day of June, 1901. The fire occurred on the 16th day of September, 1901, three months and one day from the date of the policy. The inventory, by the terms of the policy, was required to be taken at least once a year. Shall we say that plaintiff did not have a whole year to take an inventory? Clauses, conditions and warranties contained in a policy of fire insurance, will be construed most strongly against the insurer, where it may fairly be done, in order to avoid a forfeiture or to permit a recovery; in case of doubt fairly arising, the doubt will be resolved against the insurer; and where a clause, condition or warranty admits of two interpretations, equally reasonable, the one most favorable to the insured will be adopted. Liverpool & London & Globe Ins. Co. v. Kearney, 180 U. S. 132; National Bank v. Ins. Co., 95 U. S. 673, 678-9, Moulor v. Am. Life Ins. Co., 111 U. S. 335-41; 16 Am. & Eng. Enc. Law, 863 and the authorities cited in notes 2 and 3. In the case of Liverpool, etc., Ins. Co. v. Kearney, Justice Harlan, in delivering the opinion of the Court, says: “To the general rule there is an apparent exception in the case of contracts of insurance, namely, that where a policy of insurance is so framed as to leave room for two constructions, the words used should be interpreted most strongly against the insurer. This exception rests upon the ground that the company’s attorneys, officers or agents prepared the policy, and it is its language which must be interpreted.” Not only do the words in question give to the plaintiff a year in which to take an inventory, but if there were a doubt fairly arising, it would be resolved in favor of the insured. Clauses similar to the one in controversy were passed on in the oases of McCollum v. Niagara Ins Co., 61 Mo. App. 352: Forehand v. Niagara Ins. Co., 58 Ill. App. 161; and Citizens Ins. Co. v. Sprague, 8 Ind. App. 275. These cases expressly hold that the insured is entitled to a full year from the date of the policy within which to take an inventory, notwithstanding the policy runs for one year only. It seems clear to us that the insured had a full year from the date of the policy within which to take an inventory, although the policy ran for one year only.
We will now notice the specification that no books of account correctly detailing purchases and sales of stock, were kept by plaintiff as required by the policy. Some weeks after the fire which consumed plaintiff’s store at Burning Springs, C. W. Blair, the adjuster for the defendant, and the other companies which had issued policies on the same stock of merchandise, called upon plaintiff, and, after securing the execution of a non-waiver agreement, proceeded to investi gate the amount of the loss. The plaintiff turned over all of his books of account and inventories and all duplicate bills he had then received, to Blair, the adjuster. The books consisted of a journal, two ledgers and two inventories. Certain bills of purchases had not been entered on the books at the time of the fire, and were burned. It does not appear that there had been any unreasonable delay in entering these bills on the books. Two pencil blotters also were burned. The books, etc., turned over, were examined by Blair at Parkers-burg and then taken by him to Huntington and there kept several days, until after the plaintiff went to Huntington, and after having a conference with Blair, brought the books, etc., back with him. In the meantime, plaintiff had sent to Blair more duplicate bills. No settlement having been made, plaintiff made proof of loss under the policy. After proof of loss was made, Blair, the adjuster, by letter, dated November, 23rd, 1901, to plaintiff, took exceptions to the proof of loss and demanded that plaintiff submit to him for examination at the Florentine Hotel, Huntington, W. Va., all books of accounts, bills, invoices and other vouchers, or certified copies of same if originals be lost. Hater the plaintiff went to Huntington with all his books and papers, including duplicate bills for nearly all of the purchases not entered on the books. Some of them — in fact, nearly all of them — were not certified, but no objection was made by Blair because of that fact, and no further demands were made for certified bills. A long consultation between plaintiff and Blair, the adjuster, took place on this occasion at Huntington, in the presence of Casto, attorney for plaintiff. At this last meeting at Huntington a statement of the wholesale bills not entered, and which were destroyed by fire, was present, and a footing thereof was made by Blair. No settlement was made. About seven hundred pages of this massive record are taken up with the books and papers of the plaintiff. There is practically no conflict in the evidence as to what books were kept by the plaintiff or as to what they disclosed. The question is whether or not these books in legal effect, constituted a compliance with the clause of the policy requiring plaintiff to keep books of accounts, etc.
In the absence of bad faith, the law requires of the insured only a reasonable and substantial compliance with the clauses, conditions' and warranties of a policy of fire insurance. Liverpool & London & Globe Ins. Co. v. Kearney, 180 U. S. 132; McNutt v. Va. Fire & Marine Ins. Co., 45 S. W. Rep. 61; Am. Central Ins. Co. v. Ware, 65 Ark. 336; Meyer Bros. v. Ins. Co., 73 Mo. App. 166; Standard Fire Ins. Co. v. Willock, 29 S. W. Rep. 218; Liverpool, etc., Ins. Co. v. Sheffy, 71 Miss. 919; Liverpool, etc., Ins. Co. v. Ellington, 94 Ga., 785; Western Assurance Co. v. McGlathery, 115 Ala. 213; Morris v. Imperial Ins. Co., 103 Ga. 567; Jones v. Southern Ins. Co., 38 Fed. Rep. 19; Sun Ins. Co. v. Jones, 54 Ark. 376; Brown v. Pallatine Ins. Co., 89 Tex. 590; Pa. Fire Ins. Co. v. Brown, 36 S. W. 590; E. Tex. Fire Ins. Co. v. Harris, 25 S. W. Rep. 720; Home Ins. Co. v. Cohen, 20 Grat. 312. We are aware that bhere are some authorities holding that a literal compliance is necessary, but the decided weight of authority is the other way.
In the case of Liverpool, etc. v. Kearney, supra, Justice Harlan says: “The covenant and agreement to keep a set of books showing a complete record of business transacted, including all purchases and sales both for cash and credit, together with the last inventory of said business, should not be interpreted to mean such books as would be kept by an expert book-keeper or accountant in a large business house in a great city. That provision is satisfied if the books kept were such as would fairly show to a man of ordinary intelligence, all purchases and sales both for cash and credit.”
In the case of McNutt v. Va. Fire & Marine Ins. Co., a part of the syllabus is as follows: “In a suit on such policy it appeared that complainant had, in good faith, kept books showing all his accounts, the main defect being that the cash account contained entries of monies received on collections ' and on deposit, as well as for sales of goods. Complainant had also taken an inventory, which it had been his habit to keep in his safe. On the day before the fire he had been engaged in' taking a new inventory in the same book, which was not completed, and it had been inadvertently left out of the safe, and, together with his current invoices, destroyed. Complainant supplied all deficiencies in the proofs by producing duplicate invoices and showing beyond question the true status of Ms accounts and of the stock destroyed. Held, that complainant was entitled to recover on the ground that he had shown a substantial compliance with every reasonable requirement of such policy.”
.In the case of Liverpool etc. Ins. Co. v. Ellington, 94 Ga. 785, it was held, that where the policy required that the assured should keep a set of books showing a complete record of business transacted, including all purchases and sales both for cash and credit, “it was not indispensable that the set of books kept should embrace what is usually termed a cash book, or that the book should be kept on any particular system, or in a manner to render it easy rather than slow and difficult to ascertain the amount of purchases and sales, and distinguish cash transactions from those of credit. It was enough that these matters would be ascertainable from the boons, with the assistance of those who kept them, or who understood the system on which they were kept.”
In the case of Western Assurance Co. v. Redding, 68 Fed. Rep. 708, the first point of the syllabus is as follows: “Plaintiff, the keeper of a country store, held a policy of insurance on his stock of goods, issued by the defendant company, which contained a clause providing that it was one of the conditions of the policy that plaintiff should keep a set of books showing a complete record of his business, purchases and sales, take an itemized inventory at least once a year, keep such books and inventory in a fire-proof safe, and produce the same in case of loss; and that failure to comply with such conditions, should avoid the policy. Plaintiff’s store and stock were destroyed by fire, and, in an action subsequently brought against the insurance company, it appeared that he kept a set of books in a primitive and unskilful manner, which books were all in the safe and were produced, except a cash sales book covering twentj'-one days before the fire, which had been inadvertently left out of the safe and burned, and such books showed plaintiff’s purchases and credit sales and some of his cash sales; as well as the result of an inventory taken a short time before the fire. Held, that the promissory warranty contained in the safe clause aforesaid, was a condition subsequent only, and that the facts shown were sufficient to justify a finding of compliance therewith.”
In the case of Home Ins. Co. v. Cohen, 20 Grat. 312, it was held that “In an action on a policy of insurance against fire, all that can be required of the plaintiff is a reasonable and substantial compliance with the conditions of the policy. ” This case was approved by this Court in the case of Bryan v. Insurance Co., 8 W. Va. 605. Judge Moore delivered the opinion in the following language: “As held in Home Ins. Co. v. Cohen, 20 Grat. 312, a reasonable and substantial compliance with the terms of the policy is all that is required.”
The clause of the policy under consideration, constituted a promissory warranty on the part of the plaintiff, and a reasonable and substantial compliance therewith, in good faith, is shown by the practically uncontradicted and uncon-troverted evidence in this record. The authorities we have cited meet every objection to the books of account kept by the plaintiff. These books were produced on the trial and were copied in the record. A full statement was made of the wholesale bills not entered. The plaintiff testified that from these books and papers he could and did ascertain the purchases and sales. The adjuster, Blair, testified that “It is not difficult to take books of this kind and arrive at a conclusion, because they were simply single entry books— simply a debit and a credit.” A statement of the wholesale bills not entered amounting to about $1,300.00, was produced, and duplicates of nearly all of said bills were also produced. Adjuster Blair testified that he made up a statement from these books and papers of the amount of goods on hand at the time of the fire. Plaintiff and Blair arrived at different conclusions, but Blair rejected items which the plaintiff included.
We will now consider the specification that plaintiff failed to produce at Huntington, West Virginia, pursuant to the letter of November 23rd, 1901, all books of accounts, bills, invoices and other vouchers, or certified copies of same if original be lost. Defendant had a right to demand the production, for examination, of all books of account, etc., but in so doing it must be prompt and reasonable in its demands. Kerr on Ins, 543, and cases cited in note 309.1 The provision of the policy requiring the insured to, produce for examination all books of account, etc., was a promissory war ranty on bis part and a condition precedent to his right to recover on the policy. In the case of Murphy v. Northern British & Mercantile Co., 61 Mo. App. 323, a clause almost identical with the one under consideration, was construed and it was there held that “The provision of an insurance policy requiring the insured to produce his books, etc., for examination when required, at a reasonable place, means a reasonable place in the locality or town where the insured property is situated.” To the same effect are the cases of Am. etc. Ins Co. v. Simpson, 3 Ill. App. 98; Fleisch v. Ins. Co., 58 Mo. App. 598. See also Elliott on Insurance, section 313. This seems to be the only reasonable construction of this clause, in the absence of conditions rendering a place in the locality where the insured goods were situated, unreasonable, and we hold it to be the law.
In the case at bar, the demand was made to produce for examination all books of account, etc., at the’ city of Huntington, one hundred and forty miles or more from the place where the insured property was situated. The city of Huntington was not a reasonable place within the meaning of this clause of the policy sued on, and the plaintiff was under no duty to produce such books, etc., at that place, and can be charged with no violation of this clause because he did not do so,
It is obvious that there was no failure of the plaintiff to comply reasonably and substantially with the clauses specified by the defendant. In our judgment it would have been the duty of the court, upon motion, under the rule laid down in case of Ketterman v. Dry Fork R. R. Co., 48 W. Va. 606. and other cases decided by this Court, to have directed a verdict for the plaintiff and an assessment of damages by the jury. If a verdict had been rendered for defendant, it would have been contrary to the law and evidence. This being true, the question of waiver and the evidence and instructions in relation thereto, were eliminated and were wholly immaterial. The single question remaining for the jury, and as to which there was a conflict in the evidence, was the quantum of damages to be as sessed to the plaintiff; or, in other words, the amount of loss and damage.
The defendant complains of the refusal of the court to give a number or instructions asked for by it; but there being no failure to comply with the provisions of the policy by the plaintiff, as specified by the defendant, most of these instructions were not applicable, and defendant was not prejudiced by the refusal to give any of them. Some of them were offered on the theory that it was the duty of plaintiff to show compliance with the clause requiring the books, etc., to be kept in an iron safe; but as we have already said, the defendant did not specify such failure and could not have the benefit thereof. Defendant also complains that improper instructions were given for the plaintiff. The instructions complained of were wholly immaterial and had no bearing on the question of the amount of loss and damage with which the defendant should have been asssesed. The rule is that the Court will not reverse a judgment merely because the trial court misinstructed the jury, when all the facts in the case are in the record, and it appears thereby that the appellant could not have been injured by the misin-struction. Clay v. Robinson, 7 W. Va. 348; Corder v. Talbott, 14 W. Va. 278; Taylor v. Boughner, 16 W. Va, 327; Edgell v. Conaway, 29 W. Va. 747; Beatty v. B & O. R. R. Co., 6 W. Va. 388; Carrico v. W. V. C. & P. Ry. Co., 39 W. Va. 86. The instructions complained of were not prejudicial to the defendant upon the question of the ascertainment of the amount of loss and damage.
Defendant also complains of the admission of certain evidence on the trial over its objection. The proof of loss made by the plaintiff under the policy, was admitted, but, as the record shows, only for the purpose of proving that it had been made, as required bj*- the policy. A copy of the proof of loss is admissible to show compliance with the policy but not to prove loss. Mays on Ins. section 579, note 7. See also Schwartsbach v. Protective Union, 25 W. Va. 622. As we have seen, there was no issue involving this matter, but for the purpose for which the proof of loss was admitted, it was harmless and did not prejudice the defendant. Evidence tending to prove defendant’s refusal to appraise, as provided bjr the policy was admitted. This evidence was likewise immaterial upon the question of loss and damage, and was not prejudicial. The statement of the wholesale bills not entered, was admitted, which was proper in connection witli plaintiff’s evidence, whether the statement had ever been presented to adjuster Blair or not, The evidence of Casto, in rebuttal to Blair’s testimony, as to amount ascertained by Blair to be the loss and damage, was proper. The evidence of Yan Alstine, Owens, O’Brien and Depue, as to the value of the stock of merchandise consumed by the fire, was proper, Three of these witnesses had been clerks in plaintiff’s store and the other a merchant. These witnesses show sufficient knowledge on the subject to enable them to testify intelligently upon the question of value, and the weight to be given to their testimony is for the jury.
Mr. Elliott in his work on Evidence, section 685, says: “Witnesses who are not strictly experts, as well as expert witnesses, may testify as to the value of property, real or personal, or as to the value of services, in a proper case. They must, however, have some knowledge on which to base their opinion. If they have such knowledge, the fact that it is slight will go to the weight of their testimony rather than to its competency. ” See also section 616. Bearing directly upon the competency of the testimony of these witnesses, see the following authorities: Buckley v. U. S., 4 How. (U. S.) 251; Enos v. St. Paul F. & M. Ins. Co., 46 Am. St. Rep. 796; Sirrine v. Briggs, 31 Mich. 443; Walker v. Collins, 50 Fed. Rep. 737. We do not find that defendant was prejudiced by the admission of improper testimony, although much testimony was admitted which was immaterial to the question of the amount of loss and damages. Mr. Barton in 2 Barton’s Law Practice, 735, says in relation to setting aside a verdict of a jury on the ground of the admission of improper testimony, that “The court will not grant a new trial although there has been an error in the admission or rejection of evidence, or in the direction of the Judge, if it appear to the court on the whole matter that the verdict ought to be confirmed.” See also 2 Tucker’s Com., 302; 4 Minor Ins. 937; Taylor v. R. R. Co., 33 W. Va. 39; Hall v. Lyons, 29 W. Va. 410; State v. Hull, 45 W. Va. 767; Jones v. Singer Mfg. Co., 38 W. Va. 147; Flowers v. Fletcher, 40 W. Va. 103; State v. Yates, 21 W. Va. 761.
The evidence on the question of the amount of loss and damage, while somewhat conflicting, was sufficient to support the verdict.
We find no reversible error in this record, therefore the judgment of the circuit court is affirmed.
Affirmed. | [
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GreeN, President,
delivered the opinion of the Court:
The first question presented by the record in this case is : Did the circuit court, err in overruling the demurrer to the declaration ? There was no necessity for the declaration to specify the acts of omission or commission which constituted, the negligence of the defendant, which is the basis of the action. The degree of certainty i*e-quired by the rules of pleading was met by the allegation that “the defendant negligently, carelessly and wrongfully caused a train of cars on its railroad to be propelled and driven upon the fat cattle of the plaintiff, whereby three of them were killed and seven others greatly bruised and injured.” It is neither usual nor necessary to specify the acts or omissions of the defendant which constitute the negligence. This is a matter of proof, and need not be specified in the declaration. It was not specified in the declaration in the case of Blaine v. The Chesapeake and Ohio Railroad Company, 9 W. Va. 252, and Baylor v. The Baltimore and Ohio Railroad Company, Id. 270. The declarations which were held good by this court on demurrer in these cases did not in any way specify the acts of omission of the defendants, which constituted the basis of the action in each of these cases.
But stated in the manner these acts are in the declaration in this case, they can not be regarded as surplusage. The declaration says that this injury to the cattle of the plaintiff was “solely by the said negligence and careless ness of the defendant, in this, that the said defendant seeing the plaintiff’s fat cattle upon its said railroad, and well knowing the said cattle were upon said railroad without am fault, negligence or carelessness of the plaintiff, the said defendant recklessly, carelessly, negligently and wrongfully, propelled and drove its, locomotive engine and train of cars upon and over said fat cattle, and did not sound the whistle of said locomotive, nor slack the speed of said train of cars, nor used other precaution or means to prevent the injury aforesaid, but on the contrary the said defendant did wantonly, carelessly and negligently commit the injury and wrong aforesaid in the manner aforesaid.” This amounts to an allegation that the defendant after it saw the plaintiff’s cattle on its track did wantonly and negligently propel its.locomotive upon them and did not use any precaution to prevent the injury.
The appellant’s counsel insists that the plaintiff in this part of his declaration, to make it good, was bound to allege that the injury could have been prevented by the use of proper precaution, as without this allegation the injury may have been the result of inevitable accident. But the above allegation does expressly negative such supposition as it alleges that it “negligently and wrongfully propelled and drove its locomotive over said fat cattle.” Had it been an inevitable accident, it could not have been alleged that the act was done “negligently and wrongfully,” as this is the only specific objection urged to this declaration, and as I s,ee no valid objection to it I conclude the court did not err in overruling the demurrer.
The next enquiry is : Did the court err in permitting the witness, Wood, to give to the jury the statement ma(^e by ^e engineer about an hour after the killing and injury of the cattle, and some distance therefrom when he was on the engine after it had run off the track ? The engineer was sufficiently identified to permit this statement to go to the [jury, if it had been otherwise proper to permit it to go to tbe jury. Unless this statement of the engineer was a part oí the res gesta, it must be excluded; for the defendant can not be bound by the statements or admisáions of its agent made after the injury complained of had been committed, when regarded merely as admissions. A railroad company is not responsible for the declarations and omissions of any of its servants beyond the immediate sphere of their agency and during the transaction of tbe business in which they are employed. Thus'the declaration of a conductor of a railway train, as to the mode in which an accident occurred, made after its occurrence, or those of an engineer made under similar circumstances are not admissible. Redfield's edition of Greenleaf, p. 135 §114 (a); Va. and Tenn. R. R. Co. v. Sayers, 26 Grat. 351, Griffin v. Montgomery R. R. Co., 26 Ga. 111; Robinson v. Fitchburg R. R. Co., 7 Gray 92.
It is true the declarations of an agent like his acts, if made at the time the act is done, will bind the principal, as constituting a part of the m gestae. It the railroad company is bound at all by the declarations of an engineer 'in this case, it is only bound because they constitute a part of the res gestae-. Did they constitute a part of the res gestee f They were made about an hour after the accident which is the basis of this suit happened, but while the engineer was still on the engine, it having been thrown off the track by this accident.- Were these declarations a part of the res gescet, or were they a narrative merely of a past occurrence? It the first they were evidence ; and if the last they were not, no matter how soon after the occurrence they were made. See Corden v. Talbott, 14 W. Va. 277; Brown v. Lusk, 4 Yerg. 240; Commonwealth v. Harwood, 4 Gray 41.
It sometimes happens that the declaration is made so soon after the occurrence, that the court has great difficulty in determining whether it is a part of the res gestae- or not; and sometimes a difficulty arises infixing a limit to what constitutes the occurrence, with reference to which ifc is claimed that a declaration or act is a part othe res gestee. Thus in The Insurance Company v. Mosley, Wall. 397, the question in controversy was whether Mosley had died by reason of injuries which had arisen from an accident. His wife proved that he got up and went down the stairs about midnight. When he came back he said he had fallen down the stairs and almost killed himselt; that in falling he had hit and hurt the back of his head ; his voice trembled, and he was faint and vomited. He continued to suffer and died on the third day after. The majority of the coui’t thought these declarations made to the wife were under these circumstances a part of the res gestos, and admissible as such in evidence to prove the accident. The court says: “ Here the principal fact is the bodily injury. The resgestoeare thestate-ments of the cause made by the assured almost contemporaneously with its occurrence, and those relating to the consequences made while the latter subsisted ’and were in progress.” But from this opinion Judge Clifford dissented in a long and able opinion, in which Judge Nelson concurred.
In the case of Hanover Railroad Co. v. Coyle, 55 Pa. St. 402, where a peddler’s cart had been overthrown by a railroad car and a suit instituted by him for the injury, the plaintiff was permitted by the court below to prove the declarations of the engineer at the time of the accident, for the purpose of showing the train was behind time, and thus show carelessness and negligence as a part of the res gestes. The Supíneme Court say: “The record shows no bill of exceptions to this evidence; but if it did, we cannot say that the declaration of the engineer was no part of the res gestee. It was made at the time of the accident, in view of the goods strewn along the road by the breaking up of the boxes ; and it seems to have grown directly out of and immediately after the happening of the fact. The negligence complained of being that of the engineer himself, we cannot say that his declaration, made upon the spot, at the time, and in view of the effects of his, conduct, are not evidence against the company as a part of the transaction itself.”
Whatever may be the difficulty in some cases of determining what declarations are a part of the res gestee, and what merely the relation of a past occurrence, I do not think there is much difficulty in determining in this case, that the statement of the engineer, made an hour after the occurrence which is the basis of this suit, that is, after the killing and injuring of the cattle, and made some three hundred yards from where the accident occurred, cannot be regarded as a part of the res gestee. They must, it seems to me, be regarded as a relation of past events merely, as much so as if the statements had been made the next day. The fact that the engine which had been thrown from the track when the accident occurred was still off the track when these declarations were made, it seems to me, has no bearing, on the question ; for the throwiug of the engine off the track was not the principal fact to be shown. Indeed it had nothing to do with the subject of enquiry before the jury, the manner in which the cattle had been killed. It was, it is true, one .of the consequences which followed the killing of the cattle. But if it had been so injured that it could never have been again put on the track, it would hardly be said that this would authorize the declarations of the engineer, made at an indefinite period afterwards, to be received as evidence, because the engine was still off the track because of this accident.
This conclusion is, I think, fully sustained by the authorities. Thus in Laly v. The Hudson River Railroad Company, where the suit was for alleged negligence in running against the plaintiff, the plaintiff was allowed to prove by a policeman, who was present when the accident occurred, that he being called on by the crowd then present arrested the driver of the car, and while getting out of it and out of the crowd being asked wRy he did not stop the car, he said that the brake was out of order. And the Court of Appeals reversed the case, be cause this evidence "was admitted, holding that this declaration of the driver was not a part of the res gestee. It was no part ot the driver’s act for which the company was sued. The court say : “It was not made at the time of the act so as to give it quality and character. The alleged wrong was complete, when he made the statement, and the driver was only endeavoring to account for what he had done.”
So in The Belfontaine Railroad Company v. Hunter, adm’r, 33 Ind. 335, the court decided that in an action against a railroad company by an administrator to recover damages for the death of his decedent, occasioned by the collision of a locomotive and train of cars and a wagon in which the decedent Avas crossing the track, that the declarations of the fireman employed on the lo-motive at the time of the collision, made on the arrival of said train bearing the body of the deceased at a station one mile from the place of the accident, were not admissible as a part of the res gestee. And in Lum v. Bryant, 9 Gray 245, in an action to recover damages sustained by a collision between the defendant’s and the. plaintiff’s carriage, evidence that the defendant’s servant, who had charge of his carriage, immediately after the collision, and while the defendant was being taken from his carriage, and while the crowd was about, said the plaintiff was not to blame, yet the court held that this declaration of 'the defendants was not admisible as a part of the res gestee. The court say: “It was made after the accident occurred and the injury to the plaintiff’s carriage had been done. It did not accompany the principal act or tend in any way to elucidate it. It was only the expression of opinion about a past occurrence and not a part of the res gestee.” It is not more competent because made immediately after the accident than if made a week or a month afterwards. See Land v. Tyngoborough, 9 Cush. 36.”
The court therefore erred in the case before us in ad mitting these declarations of the engineer made an hour after the accident as a part of the res gestee.
The next enquiry is: Did the court err in tbeinstrnc-] tions it gave the jury ? The only objection urged by the appellant’s counsel to the first instruction given by the court is, that under the declaration filed in this case the plaintiff could only recover, if the defendant’s servants were guilty of wrong and negligence after they saw the plaintiff’s cattle on the track; and under this instruction the jury are directed to find for the plaintiff, if the injury might have' been avoided by the exercise of proper and reasonable care and caution on the part of the defendant’s servants, as well before ás after they saw the cattle on the road. We have seen, that the plaintiff by his declaration has specifically stated, that the negligence of the defendant on which he bases his action occurred after the defendant'saw the cattle of the plaintiff on the railroad. Under such a declaration he .cannot- recover, if there was no negligence or wrongful act done by the defendant’s servants after they saw the cattle on the road, no matter how negligent they may have been before, and though the accident was caused by negligence occurring before the cattle were seen on the road. There was no necessity for the plaintiff to allege in his declaration what were^the negligent acts of omission or commission of the defendant, or when they took place, specifically; but having done so, his proof must correspond with his allegations in his declaration, or he cannot recover.
Had the plaintiff not made these unnecessarily specific allegations in his declaration, this first instruction would have been entirely unobjectionable; but under this declaration it was calculated to mislead the jury, and to lead them to infer that they could find for the plaintiff, though they believed the accident inevitable after the cattle were seen, if it was occasioned by the negligence of the defendant’s servants before the cattle were seen, and could by proper care before that time have been avoided. This instruction should not therefore have been given.
The second instruction given is also objectionable, as under it the jury would be justified in finding for the plaintiff, if the defendant did not use any care in or caution to avoid the injury, though the facts proven might satisfy the jury that the accident was unavoidable, and could not have been prevented by anything the defendant’s servants could have done. If it was unavoidable by any amount of care, the failure to use any care or caution to avoid-the injury would not make the defendant liable. See Flutes v. Chicago & Rock Island Railroad Co., 85 Ia. 191. This instruction should have been qualified so as to read: “ If the jury believe from the evidence the plaintiff ’s cattle wandered on the defendant’s railroad without his knowledge, and being there were killed or injured by a passing train of cars in charge of the defendant’s servants; and if they further believe from the evidence that the servants of the defendant in charge of the train^could by the exercise of proper and reasonable care and caution, after they saw the cattle of the plaintiff on the railroad track, have avoided injury to them,' and they failed to use such reasonable care and caution, the jury should find for the plaintiff.”
If the plaintiff had not by his declaration confined himself to the proof of negligence after the cattle were seen on the railroad track, these words in this instruction, “After they saw the cattle of the plaintiff on the railroad track” should have been omitted. I have purposely omitted in this modification of this instruction the words, “That whilst the plaintiff was exercising ordinary care over his cattle mentioned in the declaration they temporarily escaped from his enclosure,” because by the decision of this court his permitting his cattle to run at large would not be such contributory negligence as would preclude him from recovering in this action if the case was made by him stated in this instruction. See Blaine v. Chesapeake and Ohio Railroad Company, p. 252. The first clause of the defendant’s instruction propounds the law of this case correctly; but it would obviously have been erroneous if the plaintiff had not by the manner in which he has drawn his declaration confined himself to the proof of negligence after the defendant seen the cattle on the railroad.
The latter part of this instruction was clearly wrong. The general rule is that what constitutes negligence is a question of fact to be submitted to the jury, unless where the facts are undisputed and the results of those facts unquestionable, either as proving or disproving, negligence. If the facts are conceded, or if in an instruction they be hypothetically assumed, still if the inference in regard to negligence or want of negligence from such facts is doubtful, and would depend on the general knowledge and experience of men, the court cannot decide whether such facts constitute negligence, or not; but it must be left to the decision of the jury. Gaynor v. The Old Colony and Newport Railway Company, 100 Mass. 208. The court, therefore, could not properly instruct the jury that under the circumstances stated in the instruction asked for by the defendant’s counsel, that the turning of the steam from the “stop cock” of the cylinder was all that that was required of the defendant, and if this were done, the defendant was not guilty of negligence; nor would the court give a contrary instruction. The jury must determine upon such a state of facts, whether the defendant was, or' -was not, guilty of negligence; and the court could not properly instruct the jury that they were bound to take the experience of the engineer as to what was the best means of frightening cattle as correct. The jury must5 without the interference of the court, give to the testimony of the engineer, and to his experience, the weight to which in their judgment they are justly entitled. The court of course erred in not granting a new trial.
For the reasons above stated we express no opinion as to the weight of evidence, as this case must be tried over de novo by a jury. Of course when this ease is remanded to the circuit court, it must permit the plaintiff to amend his declaration, if he asks so to do.
The court also erred in giving judgment for interest on damages found by the jury prior to the day the judgment was actually entered, that is, the 7th day of May, 1878. The judgment entered by the circuit court erroneously gave interest from the first day of the term at which the judgment was entered, that is, from April 18, 1878. The 18th section of chapter 131 of the Code of W. Va. page 628 provides that every judgment or decree for the payment of money, except when it is otherwise provided by law, shall bear interest from the date thereof. If this section stood alone it might perhaps be argued that as a judgment or decree, whenever rendered, for some purposes is regarded as though it were rendered on the first day of the term, this interest should be under this statute from the first day of the term. But the 14th section of the same chapter page 627 shows clearly that this was not the meaning of the law; for this section provides that in an action on a contract the jury may allow interest on the principal due, or any part thereof, and in all cases shall find the aggregate of the principal and interest due at the time of the trial, and judgment shall be entered thereon with interest from thedate of the judgment. This obviously does not mean with interest from the first day of the term ; for the jury had already been directed to aggregate the principal and interest to a day, which must generally be subsequent to the first day of the term. Its meaning is obviously that the judgment shall be with interest from the day it is actually rendered; and we must construe the same words in the 18th section to have the same meaning, that is, the judgment in any action, unless it is otherwise provided by law, should bear interest only from the day it is actually entered of record.
The judgment of the circuit court of Marion county of May 7, 1878, must therefore be reversed and annulled • and the plaintiff in error must recover of the defendant in error his costs in this Court expended; and this Court proceeding to render such judgment, as the circuit court ought to have rendered, doth sustain the defendant’s mo tion to set aside the verdict of the jury rendered May 4, 1878, and to award it a new trial; and the said verdict is hereby set aside and a new trial awarded the defendant^ and this case is remanded to said circuit court to be further proceeded with according to the principles laid down in this opinion and further according to law.
The Other Judges Concurred.
Judgment Reversed. Cause Remanded. | [
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Snyder, President :
The Wheeling & Harrisburg Railway Company, a corporation chartered under the general railroad law of this State, by an ordinance adopted by the council of the city of Wheeling on January 18, 1889, obtained the consent of said city to construct a branch railroad in and upon certain streets of said city. The ordinance among other things authorizes said company to use for the construction and operation of its road a portion of Twentieth street in the city. This street runs east and west near the foot of a high hill. It is constructively sixty feet wide, but owing to the character of the ground on which it is located only thirty feet or less on the north side of it has been graded and opened as a street, leaving a high and almost perpendicular bluff on the south side of this grade near the center of the projected street. On the north side of this street and abutting upon it are two lots of land owned by the plaintiff", John Arbenz, and upon each of these lots there is a brick building constructed and used for manufacturing purposes. These lots also abut on public alleys at their respective ends and on Eoff street, which runs between them at right angles to Twentieth street. The ordinance provides, that the railroad company may construct its road in a cut or excavation along the bluff in said street, and thus occupy a small portion of the graded part of the street in front of the plaintiff’s property. The excavation to begin at nothing at the eastern end of said property and' gradually increase in depth going westward, until at a point beyond the said property it will be of sufficient depth to admit of its being covered by a roadway, under which defendant’s cars can pass. In front of the plaintiff’s buildings the excavation will be an open cut in the street inclosed at the top by an iron railing, thereby separating the railroad track from the remaining graded portion of the street. The facts in the record show the present graded portion of Twentieth street along the front of this property is only about twenty four feet in width, and that after the railroad is constructed there will still remain open twenty two feet of this street between plaintiff’s property and the said iron railing on the side of the railroad track; thereby making it appear that but two feet of the traveled and graded pai’t of the street will be occupied by the excavation and rail road track. The heavy grade of the street at this point renders it impracticable to construct the railroad track on the surface grade of the street; and therefore, in order to construct the railroad along this street, the excavation is a necessity.
The said railway company having commenced the construction of its road along said street in the manner aforesaid, and under the authority of the aforesaid city ordinance, the plaintiff' tiled his bill in the Circuit Court of Ohio county alleging the aforesaid facts among others, and praying an injunction to restrain the defendant, the said railway company, from constructing its road along said Twentieth street in frout of his property in the manner authorized by the said ordinance, upon the ground that the ordinance ivas unauthorized by law and void. The court on March 2, 1889, awarded a preliminary iujunction. The defendant promptly answered the bill, and upon notice to the plaintiff the defendant moved the court to dissolve the injunction. This motion was fully heard, and on March 9, 1889, the court entered an order overruling it and refusing to dissolve the Injunction. The defendant thereupon moved the court to modify the injunction so as to permit the railroad company to proceed with the construction of its road upon giving bond with security to pay all damages and costs, which the plaintiff may sustain or incur by the construction of its road etc. This motion the court sustained, and the injunction was modified accordingly.
The plaintiff then moved the court for a rehearing of that part of the order modifying the injunction; which motion the court granted, and postponed the argument and the consideration thereof to a future day. Afterwards, on April 6, 1889, the court sustained said mption of the plaintiff and set aside that portion of its order of March 9,1889, allowing the defendant upon giving bond to continue its work. From the said order of March 9, 1889, refusing to dissolve the injunction, and also from said order of April 6, 1889, setting-aside the order authorizing the defendant to give bond and continue its work, the defendant has appealed to this Court.
No depositions were taken in the cause, and consequently the only facts before us are those contained in the exhibits filed, the admissions in the answer, and the allegations of the bill not denied or controverted by the answer.
The plaintiff alleged in his bill several grounds for relief, but one or more of them seem to have been abandoned, and those argued and insisted upon in this Court may be considered as resting upon a single proposition, viz., that the council of the city of Wheeling had no legislative authority to pass the said ordinance of January 18, 1889, giving to the defendant, in the manner before stated, the exclusive occupancy of a portion of Twentieth street. It is insisted— First, that such occupancy without legislative authority would constitute a nuisance, and that such occupancy in the absence of legislative authority was not and could not be legalized by the city-ordinance; and, second, if it should be held, that the city had the right, as between the public and the city, to pass said ordinance, then this appropriation of a portion of the street to the exclusive use of the defendant would constitute an abandonment by the city of that portion of the street, and the same would revert to the plaintiff as the owner of the fee.
1. It may be conceded as a settled legal principle, that in the absence of legislative authority empowering it to do so a city or other municipal authority can not authorize by ordinance or otherwise a private person or corporation to appropriate a street or any part of it, so as to exclude the general public from its free and unobstructed use; and that this principle applies to railroads as well as to other corporations. The material question then to be now determined is, whether or not the city of Wheeling had legislative authority to grant to the defendant the use of the street in the manner it did by said ordinance of January 18, 1889.
The forty-fifth section of the act of March 11, 1836, incorporating the city of Wheeling, provides as follows : “The council shall have authority within said city to lay out and cause to be opened any streets, walks, alleys, * * * and to graduate any street, walk, alley, * * * which is or shall be established within said city * * * and generally to ordain and enforce such regulations respecting the same, or any of them, as shall be proper for the health, interest, or convenience of the inhabitants of said city.” In addition to this power granted to the city of Wheeling by its charter the legislature, in section 50 of chapter 54 of the Code of this state, has granted certain general powers to the defendant and other railroad corporations, among which are the following:
“To lay out its road not exceeding one liuudred feet in width, and to construct the same; and, for the purpose of excavations and embankments, to take as much more land as may be necessary for the proper construction, repair, and security of the railroad. * * * To change the grade or location, * * * and to adopt a new line, location, or route for the same, for the purpose of avoiding annoyance to public travel, or dangerous or difficult curves or gi’ades, or unsafe, impracticable, or unsubstantial, or expensive or otherwise undesirable locations, routes, grounds, or foundations, or for other reasonable cause. * * * To construct its railroad across, along, or upon any stream of water, watercourse, street, highway, road, turnpike, or canal which the route of such railroad shall intersect or touch; but such corporation shall restore the stream, water-course, street, highway, road, turnpike, or canal, thus intersected or touched, to its former state, or to such state as not unnecessarily to have impaired its usefulness, and to keep such crossing in repair. Nothing in this chapter 'contained shall be construed to * * * authorize the construction of any railroad upon or across any street in the inhabited portion of the city, or incorporated town or village, without the assent of the corporation of such city, town, or village.”
It will be observed, that the same section of this statute, which provides for the construction of a railroad along or upon a street and the establishment of its grade, also provides for the making of excavations and embankments, where “necessary for the proper construction, repair and security of the railroadand also contains the provision which declares, that the street intersected or touched shall be restored “to its former state, or to such state as not unnecessarily to have impaired its usefulness.” The clear and necessary implication of this language is that the legislature intended to authorize the construction of a railroad along or upon a street in such manner that it would be impracticable to restore the street to its former state. Unless such was the purpose, the alternative provision limiting the duty of restoring the street would be without meaning or effect. In such cases the requirement is simply, that there shall be no unnecessary impairment of the usefulness of the street. Any necessary impairment, whether much or little, which is required for the proper construction of the railroad, is authorized by the statute. The only limitation is, that there must be no unnecessary impairment or interference with the street.
The facts in the case before us certainly do not show, that the power granted to the defendant by the city of Wheeling authorizes it to unnecessarily impair or interfere with the usefulness of Twentieth street. The evident purpose of this provision is, that the ordinary use of the street or highway should not be stopped by the railroad, but that its continuance should be provided for, when necessary, by alteration in the street itself, which should increase the impediment and inconvenience of travel upon it as littleas possible. It is obvious, that in many cases this would be necessary, because from the nature of the work it is important and often necessary, that the railroad should be kept on a given level and not be raised so as to adapt it to the existing levels of the street. Turnpike Corp. v. Railroad Co., 23 Pick. 326; Railroad Co. v. Railroad Co., 17 W. Va., syllabus 17, pp. 813, 852.
It is insisted for the appellee, and it is unquestionably true, that corporations, whether railroad or municipal, have only the powers conferred upon them by their charters or the general statutes applicable to them; and these powers are only sucl) as are granted in express words, those necessarily and fairly implied in the powers expressly granted and those indispensable to the declared objects of the corporation. Charleston v. Reed, 27 W. Va. 681; Gas Co. v. Parkersburg, 30 W. Va. 435, 439, (4 S. E. Rep. 650.)
While this is the established rule in respect to the powers or corporations, it is equally -true and well established, that power to do an act carries with it the authority to do it in a mode, that is just, reasonable and practicable, taking into consideration the peculiar circumstances of each case. Railroad Co. v. Railroad Co., 84 Ala. 570, (3 South Rep. 286.)
The legislature may well be careful in delegating powers to corporations; but when it does grant powers, it must be presumed to grant them with confidence in the judgment and discretion of the corporation, allowing all that freedom in the choice of means proper to attain the desired end, which is needed to insure success. In respect to the limited powers of Congress under the federal constitution, the Supreme Court of the United States held : “If the end be legitimate, and -within the scope of the constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may be constitutionally employed to carry it into effect.” McCulloch v. Maryland, 4 Wheat. 316; Gibbons v. Ogden, 9 Wheat. 1. Every graut of power is intended to be efficacious and beneficial, and to accomplish its declared object carries with it such incidental powers as are requisite to its exercise. If then the exercise of the power granted draw’s after it a necessary consequence, the law contemplated that consequence. Inhabitants v. Railroad Co., 4 Cush. 63, 72.
It must be conceded, that the legislature by the statute above quoted has in express words granted to railroad companies the power to construct roads along or upon the streets of a city. It must also be conceded as facts well known to the legislature, and of which we may take judicial notice, that West Virginia is á mountainous state, and that many of the streets of its cities, towns, and villages are upon hilly ground, and their grades uneven and steep. The grade of a railroad necessarily embraces considerations of convenience, expense and facility of construction and operation, and is fixed at a particular point with reference to grades at other points. It is therefore not only proper and reasonable but almost indispensable, that railroad companies should be allowed a very large discretion in the location and fixing of the grades of their roads. It seems to me to be a fair presumption, that, when the legislature granted to railroad companies the right to occupy and use the streets of cities, towns and villages of this state, it intended, that they should have the privilege of constructing their roads to a large extent in their own way, and of passing along and upon or crossing the street, over, under, or at grade, provided they shall not unnecessarily impair the usefulness of the street. People v. Railroad Co., 74 N. Y. 302; Adams v. Railroad Co., 11 Barb. 414, 450.
This construction of our statute is greatly strengthened by the qualification therein, which prohibits railroads from occupying any street without the assent of the municipal authorities. It is very safe to assume that the city authorities will be careful to protect their streets from any improper use by a railroad company; and that in giving their assent for the use of a street they will provide, that its usefulness shall be impaired in the least possible degree. It is certainly possible, that uuder some circumstances it may be more practicable and cause less inconvenience to the public, and do less injury to the abutting lot-owners, to allow the railroad to occupy a portion of the street at a grade below or above the grade used by the general public. Therefore, unless it clearly appears, that the municipal authorities have abused their discretion by allowing such occupation of the street, as will unnecessarily impair its usefulness, it seems to me, it would be very unwise and improper for the courts to undertake to supervise their action. Plant v. Railroad Co., 10 Barb. 26.
It is contended however for the appellee, that by the use of the words “across, along or upon” in the statute the legislature intended to limit and restrict the graut, so that the railroad should bo upon the surface at a common level with the rest of the street, in order that the public may use the entire street at all times, except when trains are passing; and that this restriction was designed to prohibit the railroad from the exclusive occupation of any part of the street. It is claimed that the words “across, along, and upon” must be applied distributively to the words “stream of water, water-course, street, highway” etc.; that the word “along” should be referred to a “stream of water or water-course,” and means along the side of the stream; while the word “upon” must be referred to a “street or highway,” and means upon the surface of the street. In support of this construction we are referred to the case of Stevens v. Railway Co., 21 N. J. Eq. 259, 34 N. J. Law, 532. These authorities simply show, that the context of the New Jersey statute authorizing a railroad company to construct its road along a river did not authorize it to construct its road in or upon the river, but along-side of it; because to construct the road in the river would require the filling in of the river-bed, which it had no authority to do. There were other considerations in that case that controlled the action of the court which are wanting in the case at bar. The word “along,” used with reference to a street, could not, in our Statute, mean “along the side” of the street, because such meaning would confer no right whatever in respect to the street, but would leave the railroad to make its way through the adjoining lots owned by private individuals without the consent of the city, or any aid from this statute. Heath v. Railway Co., 61 Iowa, 11 (15 N. W. Rep. 573). The word “upon,” in this statute, does not necessarily mean upon the common grade of the street. In order to thus confine its meaning, we must ii'nply the words “level with the surface.” There is nothing in the context to require or even to justify this implication.
Eor the reasons before stated, I am of opinion that the words “along or upon” employed in th§ statute must be construed with reference to the context and the subject in controversy, and when so fairly construed in respect to a ease such as the one now under consideration, they mean along in the street, at, above, or below the common level of the existing or changed surface of the street, as the particular facts and circumstances may require. But I am of opinion, that this statute does not authorize the occupancy by a railroad'for its exclusive use of the entire street or of such considerable portion of it, as would substantially prevent the use of it by the general public, notwithstanding such exclusive use may be expressly authorized by the city authorities. Where the railroad occupies a different grade, either in an excavation below or upon an embankment above the general surface or grade of the street, it necessarily has the exclusive use of the portion of the street so occupied by it. The use of the word “unnecessarily,” in the statute, clearly implies that the usefulness of the street may be to some extent impaired; but this certainly does not mean that the street should be rendered useless.
The streets of cities are public highways and as such under the control of the State alone, and the State may grant the use of them against the will of the municipality. The city alone can not grant to a railroad the privilege of using its streets, as the power is in the legislature. The legislature may discontinue the use of streets without restraint from private citizens claiming to be interested in the continuance of the street as adjoining owners or otherwise. The control of city-streets may bo properly delegated to the city-authorities with discretion to impose conditions on the use of the street; but the power is not in the city, unless expressly delegated. Mills, Em. Dom. § 202; Railway Co. v. City of Covington, 9 Bush, 127.
In the case before us it appears, that Twentieth street is not materially obstructed, nor is its usefulness unnecessarily or unreasonably impaired. The facts show, that the present width of the graded portion of the street in front of the plaintiffs property is only twenty four feet, and that after the proposed excavation is made for the defendant’s railroad, the unobstructed portion of the street will still be twenty two feet;, thus showing that but two feet of the present open and graded part of the street will be occupied by the railroad. As before stated, there is nothing in the record of this case to show, that this is either an unnecessary or unreasonable appropriation or use of the street; and therefore we must hold, that it is authorized by the statute, and that the use and occupation of it by the railroad company in the maimer aforesaid will not constitute a nuisance. Perry v. Railroad Co., 55 Ala. 413; 2 Dill. Mun. Corp § 711, (564.)
2. After what has been said in the preceding portion of this opinion, very little discussion is required to show the untenability of the second proposition of the appellee, viz., that the appropriation of a portion of Twentieth street by the city to the exclusive use of the railroad constitutes an abandonment by the city of its easement in that portion of the street, and consequently the title reverts to the plaintiff as the owner of the fee. It might be a sufficient answer to this claim to urge, that the record does not show, that the plaintiff is the owner of the fee in this street. It is true, his bill avers, that he is such owner; but the answer of the defendant denies this averment, and there is no proof to sustain it. But for present purposes we will assume, that the plaintiff'is the owner of the fee in the street subject to the easement in the public.
The use by a railroad under legislative authority of the street of a city in its ordinary use as a means of travel and transportation is not an abandonment or perversion of the street from its original purposes. Time, the unerring testin the utilization of new discoveries, has demonstrated, that long and connecting lines of railroad greatly facilitate and cheapen transportation. To construct and operate such lines, it is necessary, that cities shall be traversed by them. The city is necessarily traversed by and through its streets, and by laying a railroad track through or along a public street the use and comfort of the latter as a highway must be somewhat impaired. When this is done under proper authority, it is but the assertion of so much of the sovereign power and discretion, by which the enjoyment of one right or easement is abridged, that the public may have another deemed to be ofgreater value. Perry v. Railroad Co., 55 Ala. 413, 424; Porter v. Railroad Co., 33 Mo. 128. This doctrine is especially true in this State, because our constitution (article XI, § 9) expressly declares, that all railroads shall be public highways free to all persons for the transportation of their persons and property. The use of a street therefore in this State by a railroad for its track is not an abandonment of the easement, but simply the imposition of an additional servitude for the benefit of the public.
All the questions involved in this case were necessarily decided by this Court in Spencer v. Railroad Co., 23 W. Va. 406. In that case however no question was raised as to the right of the railroad company to occupy the street; and therefore in deference to the very earnest and ingenious argument of the counsel for the appellee I have deemed it proper to consider, as I have done, the grounds upon which that right is founded. But while the right was conceded and not discussed in that case, it was.involved, and of necessity decided. There the l’ailroad company with the consent of the municipal authority constructed along in the center of one of the public streets of the town an approach to a railroad bridge, consisting of trestle-work and masonry upon which the track of the railroad was laid several feet above the surface or common level of the street. Spencer, an abutting lot-owner, sought by injunction to restraiu the railroad company from constructing its approach in front of his lot, until compensation should first have 'been made to him as the owner of the foe in the street. This Court decided, that such use and occupation of the street by the railroad company was not a taking of the plaintiff’s property, and that he was not entitled to an injunction to prevent the construction of said approach, until the damages, he might sustain, should be ascertained and paid. The second and sixth points in the syllabus of that case are as follows :
“(2) If a railroad company without taking the land damages it by the construction of its road, the owner of such land can not as a matter of right enjoin said company so proceeding with the construction of its road, till such damages are ascertained and paid; for section 9 of ai’ticle III. of our constitution, while it gives a right in such cases to recover of a railroad company such damages in an action at law, does not give a right to such injunction, as it does not require such damages to be paid or secured to be paid, before such damages actually arise by the construction of the road.”
“(6) But such lot-owners, whether they own such fee in the street or not, may, by an action at law, recover of such railroad company such damages as they might have recovered in a common-law suit, had the railroad company built its road in said street without proper authority; for while such railroad company has built its road by proper authority, con ferred directly by the legislature, or by a town-council authorized so to do by the legislature, it can not be regarded as committing a nuisance in so building its road, and using it in a careful and proper manner. Yet, under section 9 of article NI. of our constitution, said railroad company is liable .for thé permanent damages it inflicts on such adjoining lots, in the same manner as if it had built its road without such proper authority; but, after it has-been once sued for such damages, it is not liable to be sued for the nuisances which necessarily result from the running of its cars through such street, for, in so doing, it is only exercising its rights, and is not committing a nuisance.”
The only qualification of the general rule thus announced is, that, when the property of the lot or land owner, though not actually appropriated by the railroad company for its uses, is nevertheless as effectually destroyed in value, as if it had been in fact taken by the company for the construction of its road, the owner of the property so destroyed may obtain an injunction to restrain- the company, until the damages are paid or secured to be paid. Mason v. Bridge Co., 17 W. Va. 396.
In the case before us, whatever may be the character and extent of the damage to the property of the plaintiff by the construction and operation of the railroad in the manner proposed by the defendant, it is quite certain, that it will not amount to such an absolute destruction of the value of the property, as will be equivalent to a virtual taking of it; and therefore according to the decision of this Court in the aforesaid case of Spencer v. Railroad Co., the plaintiff was not entitled to an injunction to restrain the defendant from the construction of its road along Twentieth street in the manner it claims the right to do in its answer, and consequently the Circuit Court erred in refusing to wholly dissolve the injunction.
The questions as to whether or not the plaintiff is entitled to damages for the injury, if any, done to his property by the construction and operation of the defendant’s railroad along Twentieth street, or the extent of said injury, and the amount of said damages, do not arise in this suit; because for the reasons before stated his redress for such injury and the recovery for such damages must be sought by him in a proper action at law, after he has sustained the damages by the actual construction of the railroad.
It necessarily follows from this conclusion, that the Circuit Court also erred by its order of April 6, 1889, setting aside the order of March 9, 1889, modifying the injunction so as to allow the defendant to proceed' with the construction of its road upon giving bond etc. The injunction itself being improper, every act or order suspending its operation or destroying its effect would diminish the error; while the setting aside of such order would of course prejudice the right and increase the wrong,
For the reasons aforesaid I am of opinion, that so much of the aforesaid order of March 9, 1889, as overruled the defendant’s motion to dissolve the injunction, and the whole of said order of April 6, 1889, should be reversed; and, this Court proceeding to enter such order and decree as the Circuit Court should have entered, it is ordered, that the injunction awarded the plaintiff on March 2, 1889, be wholly dissolved, and the plaintiff’s bill be dismissed, with costs.
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SNYDER, President:
On .December 18, 1888, the attention of the Circuit Court of Mercer county, then in session, was called to an article published in the Wheeling Intelligencer, over the signature of D. W. McOlaugherty, a member of the bar of said court; and the said McOlaugherty then present, admitted in court, that he was the author of said article, and declining to disclaim that it was his purpose in writing said article to reflect upon the court, the court thereupon awarded a rule against him to appear before it on December 19, 1888, to answer for his contempt and show canse, why he should not be attached and fined for writing, and causing the said article to be published ; and further .to show cause why the privilege theretofore granted him to practice as an attorney in said court should not be revoked on account of said publication. On the return day of said rule the'defendant appeared and moved the court to dismiss the rule, which motion the court overruled, and thereupon the defendant tendered h'is answer, which the court adjudged .insufficient and gave him until the next day to tender another answer. On the following day the defendant, by leave of the court, filed his answer to said rule, in which he denied, that the writing and publication of said newspaper article constituted misbehavior in the presence of the court or so near thereto as to obstruct or interfere with the administration of justice. Ho also denied that it constituted any of the offences specified in the second, third and fourth clauses of section 27 of chapter 147, Code, and hence it was not such a contempt as could be summarily punished under the said 21th section of said statute. , The defendant further answered, that no contempt or disrespect to the court was intended by said writing and publication, or that it had reference to any matter then pending before the court. Thereupon the court, on consideration of certain facts, a part of them appearing of record in said court, found that said publication was false and libellous, and that the defendant was guilty of a contempt of the court, and also of a flagrant and willful abuse of his privilege as an attorney and officer of the court, and ordered an attachment to issue against the. defendant. And the defendant being in court waived the formal issuance and service of the attachment; thereupon the court adjudged and ordered that the defendant for his contempt, pay to the State a fine of $50.00, and directed a capias pro fine-to issue agaiust him for the costs; and further, that the privilege theretofore granted to the defendant to practice as an attorney in said court be revoked. To this order and judgment the defendant obtained this writ of error.
' The first error assigned by the plaintiff in error, is that the court erred in overruling his motion to dismiss the rule. The question presented by this motion may- be divided as follows : First, Do the facts alleged in the rule constitute a contempt such as is mentioned and classified in any of the provisions of section 27 of chapter 147 of the Code? Second, Is said section of the statute constitutional and valid in respect to cases such as the one now before us ? And, Third, Does the rule show grounds for disbarring the defendant?
The newspaper article, complained of is made a part ,of the rule. In respect to the article, it is sufficient to say, that it is a personal attack on the judge of the court in his- official-conduct, and, if false as the court found it was, it was clearly a contempt and liable to be punished as such. But conceding this to be true, if the aforesaid statute is valid, the court had no power to issue the rule, unless the contempt charged is one of those specified in the said statute; because it is therein declared, that the courts and judges thereof shall issue attachments for contempts and punish them summarily only in the cases therein mentioned.
The cases mentioned are as follows:
“First. Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice.
“Secondly. Violence or threats of violence to a judge or officer of the court, or to a juror, witness, or party going to, attending or returning from the court, for or in respect, of any act or proceeding, had, or to be had, in such court.
“ Thirdly. Misbehavior of an officer of the court, in his of-, ficial character.
“Fourthly. Disobedience or resistance of any officer of the court, juror, witness, or other person, to any lawful process, judgment, decree, or order of said court,” Code 1887, p. 895.
The contempts here mentioned and specified are of the class known and designated direct contempts as contradistin-guished from constructive contempts. Direct contempts are such as are committed in the presence, or such as obstruct or interrupt the proceedings, of the court. These may under the statute be punished summarily by the. presiding judge. All other contempts are constructive, and under our statute are made misdemeanors punishable by indictment. § 30, chap. 147, Code 1887. State v. Frew, 26 W. Va. 214.
The following quotations contain the most direct charges made in the said publication in respect to the official acts of the judge:
“A few days before the commencement of the Circuit Court, the judge thereof publicly desired the prosecuting attorney to have summoned before the grand jury all persons most likely to know of offences against the election laws. He was answered, ‘I am endeavoring to do so.’ Thereupon he replied, ‘If you are not going to do so, I shall have some one who will.’ He received the reply ‘that is my duty and none of yours.’ To some extent he should be excused for this, because of the depressing effect the result of the election had upon him, so forcibly - expressed by his careworn and haggard expression. * * * The charge to the grand jury was not so lengthy upon offences commonly brought to their attention, but in the charge upon offences against the election laws, the dignity of the bench was forgotten and remarks were made by those present that the election was to be contested in the grand jury room. * * * The grand jury was charged by the court, that unless the names of the voters appeared upon the assessor’s books, and it was not proven before them that these voters had a permanent residence in the county, it was a prima fade case of illegal voting and to indict them. * * * Upon testimony of this character 260 persons were indicted. These all voted at the two strongest Republican precincts in the county. Howhere else was the vote questioned in this way, although the number of votes cast at the other precincts in the county were largely in excess of the number of names upon the assessor’s books. The 260 indictments above mentioned were returned by the grand jury on the 6th day of December, but the Democratic State Executive Committee seems to have been apprised of the fact six days before, to wit, on the 80th day of November, which may be seen by reference to their address. At that date no indictments had been returned by the grand jury and not more than three or four had been made for this offence, and these against Democrats, which fact it would have-been impossible to have been known at Charleston except by telegram. Where were the ‘conspiracy and fraud,’ and who were the ‘conspirators ?’ Evidently in Mercer there were accessories, lienee the effort to induce the grand jury to indict many persons for illegal voting. Was not this promised to the Executive Committee before the 30th day of November? Ou that day these indictments had not been made, and the records of the Mercer Circuit Court show that this is true. It is nothing but a conspiracy • of their own, and the charge of fraud and conspiracy charged in the address is but to hide their own rascality.”
The rule avers, that these charges are false aud contemptuous, and directly tend to impair the respect due to the authority of the court, and to degrade, insult and bring it into disrepute, and to destroy its efficiency in the administration of justice. Admitting that said charges are all false and contemptuous, none of them constitute a contempt of the character specified in the statute above quoted. They do not come under the first class, because neither the charges nor the averments of the rule indicate that there was any misbehavior in the presence of the court, or so near it as to interrupt the administration of justice. They do not come within the second class, because there is no pretense of any violence or threats of violence to the judge or any one connected with the court or in respect to any act or proceeding either in or out of court. They do not come within the third class, because the misbehavior was not that of an officer of the court in his official capacity, but of an individual in his private character. Nor do they come under the fourth class, because there is no claim that there was any disobedience or resistance of any officer or other person to any process or action of the court. The rule does not, therefore, show any such direct contempt as can be punished summarily by the court under said statute. But, I think, the offence charged in the ruléis plainly one within the provisions of the 30th section of the statute, and therefore punishable only as a misdemeanor by indictment. JSx. Parte Robinson, 19 Wall, 505.
But it is insisted for the State, that the aforesaid statute is unconstitutional and void; It is said, that, if the legislature can limit the courts in their jurisdiction of contempts and regulate their practice therein, or in relation to the control of attorneys, it can wipe out that j urisdiction altogether, or render it useless for practicable purposes.. The statute is, it seems to me,, simply a regulation of the proceedings and not a limitation upon the jurisdiction of the courts in contempt cases. In Ex Parte Frew & Mart, 24 W. Va. 416, this Court held, that this statute was not intended to apply to contempts committed against the Supreme Court of Appeals and that that Court had the power to punish summarily both direct and constructive contempts. But the opinions of the Court in that case draw a distinction between contempts in that Court and in the Circuit Courts. In the former the power to punish summarily both direct and constructive contempts is a necessity while such is not the case in the latter courts. “In the class of .constructive contempts mentioned in section 30, the punishment of which in any manner is, as we have shown, absolutely denied to the Appellate Court, the inferior courts still have, under the statute, an efficient means of punishing. They have the right at any time to call before them both grand and petit juries, and under the statute they may with but little delay — almost as summarily as before the statute— punish such contempts. The statute as to such courts may well be regarded as a regulation and, perhaps, a necessary and proper limitation. Deskins Case, 4 Leigh. 685; Ex Parte Robinson, 19 Wall. 505. But this is very different in regard to the Appellate Court. It is deprived of all power to punish such. contempts in any manner as contempts or otherwise.” 24 W. Va. 476, 477. For these reasons and upon the authorities cited,-we hold the said statute constitutional and valid as a regulation of the manner by which coutempts shall be punished.in the Circuit Courts of this State. From this conclusion, it follows that the Circuit Court had no power to issue the rule for the alleged contempt of the defendant in this case.
It remains to determine whether or not the court erred in revoking the privilege of the defendant as an attorney of that court.
The fifth and sixth sections of chapter 119, Code 1887, are as follows : • “5. Any court before which an attorney has been qualified, on proof made to it, that he has been convicted of any felony, may supersede his license.
“6. If the Supreme Court of Appeals or any Circuit or County Court observe any malpractice therein, or if complaint be made to any of said courts of malpractice by any attorney therein, such courts shall order the attorney to be summoned to show cause why his license shall not be suspended or annulled, and upon the return of the summons executed, if the attorney appear and deny the charge of malpractice, a jury shall be impannelled to try the same ; and if the attorney be fouud guilty, or if he fail to appear and deny the charge, the court may either suspend or annul the license of such attorney as in its judgment may seem right.”
It is very apparent that this statute is intended to apply only to eases the object of which is to suspend or annul the license of an attorney absolutely and in all courts, and not to proceedings for the revocation of the privilege of an attorney to practice in the particular court revoking such privilege. That such is the proper interpretation of the statute appears from the decision in Fisher’s Case, 6 Leigh. 619, rendered in 1835, under a statute from which ours was taken and as to the question here presented identical with ours. The case before as must, therefore be determined upon the general principles of law and the practice of the courts independently of the statute. Walker v. State, 4 W. Va. 749; Mills Case, 1 Mannings R. 392.
When Rice’s Case, 18 JB. Mon. 473, was decided by the Court of Appeals of .Kentucky there was a statute in force in that state very similar to ours, aud the court in that case affii’med the judgment of the Circuit Court striking the name of an attorney from the roll of its attorneys by a summary proceeding. The court in its opinion, says : “The defendant in the rule was an attorney at law, and an officer of the court. All courts have the power to control and regulate, to a certain extent, the conduct of their officers, and to inflict on them for their official misconduct, • such punishment as the law prescribes. If a court have knowledge of the existence of such official misconduct on the part of any of its officers, it not only has the power, but it is its duty to institute an appropriate proceeding against the officer, and to bring him, if guilty, to condign punishment. And it is much to be regretted that this duty which the law devolves upon the courts of the country is so little regarded, and that the obligations which it imposes are so frequently overlooked or neglected. The official misconduct of an attorney at law may be inquired into in a summary manner by the court, and if guilty of such misconduct his name may be stricken from the .roll of attorneys admitted to the practice of law at the bar of the court. 1 Bac. Abr., title attorney, 306.” And in the same case on page 484, the court further says : “The power to remove an attorney from the bar ought to be exercised with great caution and discretion, but it is a power incidental to all courts, and unless if be clearly exceeded or abused by a Circuit Court this Court should not interpose, as it can not decide with the same means of information that the court below was in the possession of. Ex Parte Barr, 9 Wheat. 529 ; (19 Iiow. 9).”
In Ex Parte Secombe, 19 Iiow. 9, the last case above cited, the Court says: “It has been well settled by the rules and practice of the common law courts, that it rests exclusively with the court to determine who is qualified to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed. The power, however, is not an arbitrary and despotic one, to be exercised at the pleasure of the court, or from passion, prejudice, or personal hostility ; but it is the duty of the court to exercise and regulate it by a sound and just judicial discretion, whereby the rights and independence of the bar may be as scrupulously guarded and maintained by the court, as the rights and dignity of the court itself.”
Our statute requires, that a person desiring to obtain a license to practice law in the Courts of the State must appear before the County Court of his county and “prove to the satisfaction of such court that he is a person of good moral character” etc. Sec. 1, ch. 119 Code.
If the evidence of such moral character must be produced in order to obtain the license, it is equally essential that this character should be retained; and when an attorney commits an act, whether in the discharge of his duties as such or not, showing such want of professional or personal honesty as renders him unworthy of public confidence, it is not only the province but the duty of the court, upon this fact being made to appear, to strike his name from the roll of attorneys. Nor is it necessary that the offence should be of such a nature as would subject him to an indictment. He has by his own misconduct divested himself of qualifications that are indispensable to the practice of his profession; and while he may regard the judgment depriving him of that right as a punishment for the offence, the action of the court is based alone upon the ground of public policy and for the public good. It would be carrying the doctrine too far to hold, that an attorney must be free from every vice, and to strike him from the roll of attorneys because he may indulge in irregularities affecting to some extent his moral character, when, such delinquencies do not affect his personal or professional integrity. To warrant a removal his character must be bad in such respects as show him to be unsafe and unfit to be entrusted with the powers and duties of his profession; and it is not essential that this misconduct or bad character should be in respect to some deceit, malpractice or misdemeanor practiced or committed in the exercise of his profession only; but in the exercise of a sound discretion the court-should only entertain such charges as are in their nature gross, and unfit a person for an honest discharge of the high and responsible trust reposed in an attorney. It would be unjust to the profession, the purity and integrity of which it is the duty of all courts to preserve, and a disregard of the public welfare to permit an attorney, who has forfeited his right to public confidence, to continue the practice of his profession. The doctrine here announced is fully sustained by the authorities. Baker’s Case, 10 Bush 592; Leighs Case, 1 Munf. 481; People v. Turner, 1 Cal. 144; Mills Case, 1 Mich. 894; In Re Wooley, 11 Bush 95; Austin’s Case, 5 Bowie 191; Jackson v. Steele, 21 Tex. 668; Ex Parte Bradley, 7 Wall 364; Sharon v. Hill, 24 Fed. Rep. 726; Smith’s Case, 1 Yerg. 228.
The next inquiry is, do the facts in the case at bar warrant the action of the Circuit Court in revoking the privilege of the defendant as an attorney of that court. The court below, as it was competent for it to do, found that the charges against the judge contained in the newspaper article set out in the rule were false, scandalous and libelous, and directly tended to impair the respect and authority of the court, and to degrade and insult and bring it into dis repute and destroy its efficiency in the due administration of justice. If it could be considered at all doubtful, whether or not this is the true, purport and meaning of the article, we may-safely assume, that it meant to charge, and does charge, that the judge of said court had as such judge, for partisan purposes, corruptly combined and conspired with the Executive Committee of the Democratic party, and other persons, to unjustly and improperly induce the grand jury of his court to indict many persons for alleged illegal voting in Mercer county. This charge being false, we have no hesitation in pronouncing the publication to be a gross libel on its face, and one which no person of character and a proper sense, of his duty as an attorney would make. If one private citizen should make such a false accusation against another it would be a base act, and when it is made against a judge, in respect to his official conduct, by an officer of his court the offence is greatly aggravated and intensified, and manifests a much greater degree of turpitude and depravity. To call such an act misconduct simply, is to express but little of its vileness. The disclaimer of the defendant, in his answer, of intentional disrespect to the judge, or design to embarrass the administration of justice is no excuse, where the contrary appears on a fair interpretation of the language used. People v. Wilson, 64 Ill. 195.
It seems to me, therefore, clearly, according to the principles and authorities hereinbefore announced and referred to, that the said publication, was, under the circumstances, such gross misconduct on the part of the defendant as to justify the judgment of the court in revoking his right to practice in said court. The misconduct was at least of such a nature as that for which the Court might remove him, and having, in its discretion, done so, this Court ought not to reverse its action.
JEx Parte Steinman, 95 Pa. St. 220, was a case in many respects just like the one before us. The Supreme Court reversed the judgment of the inferior court in that case, but the reversal was put upon the express ground, that the judgment was in violation of the seventh section of the JBill oí Eights in the constitution of that State,-which declares, that “ no conviction shall be had in any prosecution for the pub- lieation of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information where the fact that such publication was not maliciously or negligently made, shall be established to the satisfaction of the jury.” The Court, in its opinion in that case, says: “ This is a new and very important provision introduced into the Bill of Bights by the Constitution of 1873. It would be a clear infraction of the spirit if not of the letter of this article to hold that an attorney can be summarily- disbarred for .the publication of a libel on a man in a public capacity, or where the matter was proper for public investigation or information.” We have no such provision in our constitution, and therefore we, as the Supreme Court of Pennsylvania, evidently, would have done iu the case cited but for said constitutional provision, refuse to reverse the judgment iu this case.
The only other question to be considered is, whether or not the proceedings in the Circuit Court were such as allowed the defendant a proper defence, and such as are in accordance with law and the practice of the courts in such cases. The same rule was the foundation of this proceeding as well as 1hat for the contempt. There was no specific motion made in the court below to quash the rule on the grouud that it charged two distinct offences. The same act constituted both offences, and the defendant filed his answer to the whole rule and defended on the merits. It is unnecessary at this stage of the case, after it has proceeded in the court below on the merits, to decide whether or not, if the proper objection had been taken in the lower court, this Court would reverse the judgment, simply because the two offen-ces had been united in one proceeding. The material question now is, ought the judgment to be set aside by this Court, under the circumstances, for that reason only. It seems to me it should not. The rule as to the alleged contempt having been, as wre have seen, held insufficient to authorize any judgment for that offence, so much of the rule and proceedings as relate to the contempt, may now be properly treated as surplusage, and therefore of no effect according to the maxim, Utile per inutile non vitiatur. Broom’s Max. 627.
Accordingly, so regarding the matter relating to the con tempt, it seems to me the proceeding against the defendant was such as is usual in such cases. In Ex Parte Steinman, 95 Pa. St. 220, the Court decided, that “Courts have jurisdiction and power, upon their own motion, without formal complaint or petition, in a proper case, to strike the name of an attorney from the roll, provided he has had reasonable notice and an opportunity to be heard.” Wall’s Case, 107, U. S. 265; State v. Frew, 24 W. Va. 416.
The defendant here was duly summoned, appeared before the court, answered the rule and made a full defence. I cau discover no defect in the mode of proceeding for which the judgment should be set aside. For the reasons before stated, I am of opinion, that so much of the judgment and proceedings of the Circuit Court as holds the defendant guilty of a contempt of the court and imposes a fine upon him must be reversed and that iu all other respects the said judgment must be affirmed. But the plaintiff in error having prevailed in this Court as to that part of the proceeding relating to the contempt, the State is not entitled to costs against him in this Court.
AeEIRMED IN PART. REVERSED IN PART. | [
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Eeglish, Judge:
This was an action of trespass on the case, brought by Ira Ward against Taylor Ward, his brother, in the circuit court of Barbuur County, on the 26th of December, 1896, claiming damages to the amount of twenty-five thousand dollars on account of certain defamatory words alleged to-have been uttered by the defendant in regard .to the plaintiff’s pecuniary condition. The words alleged to have been tittered by the defendant, as set forth in plaintiff’s declaration, are as follows: “That he (meaning plaintiff) was broke up (meaning that tne plaintiff had become so involved financially as not to be able to continue as theretofore his business, and that he had become insolvent, and unable to pay his debts); that he (meaning plaintiff) was-broke up, and could not pay his debts (meaning that plaintiff had become insolvent); that he (meaning plaintiff) was broken up worse than Joe Smith, and could never pay his debts (meaning that plaintiff had failed in business, become more insolvent than Joe Smith, and would never, by reason of their magnitude, be able to pay his debts); that be (meaning plaintiff) was broke up (meaning that he bad failed in business, and' become insolvent), and he (meaning himself, — defendant) intended to put him (meaning plaintiff) in the road (thereby meaning that the defendant intended selling out by legal process the property, real and personal, of plaintiff, and, by depriving him of his home and property, require him to leave the same in abject poverty); that if he (meaning plaintiff) had known that the iBank of Buckhannon was going to get out that attachment (meaning a certain execution issued from the circuit court of Upshur County against Joseph Smith, Jane Smith, and plaintiff, as surety, for nine hundred and sixty-six dollars and sixty-eight cents, with interest from February 12, 1894, and fourteen dollars and one cent costs,) he (meaning plaintiff) would have put all his (meaning plaintiff’s) property out of his (meaning plaintiff’s) hands (thereby meaning and intending that, if plaintiff had known beforehand that said execution would issue, that he, plaintiff, would have fraudulently and corruptly disposed of his property for the purpose of cheating and defrauding said bank and his other creditors out of payment of their debts against him).” On the 4th of March, 1898, the defendant appeared, and pleaded not guilty, and issue was thereon joined. On June 3, 1898, the cause was submitted to a jury, and later resulted in a verdict for the plaintiff for seven thousand five hundred dollars damages. The defendant, by his counsel, moved the court to set aside the verdict, and grant a new trial, which motion was overruled, and judgment rendered upon the verdict. The defendant •excepted, and took a bill of exceptions.
During the trial, the court at the instance of the plaintiff, .gave the jury the following instructions: “No. 1. The court instructs the jury that slander is the defamation of .a man with respect to his character, or his trade, profession, or occupation, and in this case has reference only to his trade and business, by word of mouth; and if they believe, from the evidence, that the defendant, Taylor Ward, uttered any or all of the slanderous words charged in the plaintiff’s declaration, maliciously intending to damage the plaintiff, Ira Ward, in his trade, profession, or occupation, and that said Ira Ward was damaged by said slanderous utterances from Taylor Ward, they should find for the plaintiff. No. 2. The court instructs the jury that if they believe, from the evidence, that the slanderous words, or any of them, charged in the plaintiff’s declaration, were uttered by the defendant, Taylor Ward, against and about the plaintiff, Ira Ward, the law will presume that the said words were uttered maliciously, and with intent to injurb the plaintiff, and the burden is on the defendant to show that the words were privileged; and if the jury further believe, from the evidence, that the defendant has failed to show that said words were privileged, then they should find for the plaintiff.” “No. 6. The court instructs the jury that if they believe, from the evidence, that the defendant, Taylor Ward, spoke and published the slanderous words or any of them charged in the plaintiff’s declaration mentioned in the manner and for the purpose charged therein against him, and that said slanderous words so spoken damaged the plaintiff in his trade or occupation, then they should find for the plaintiff; and the court further instructs the jury that they are the -judges of the amount’of damages to which the plaintiff would be entitled under the evidence.” “No. 10. The court instructs the jury that if they believe, from the evidence, that the defendant, Taylor Ward, uttered the slanderous words, or any of them, as laid in the plaintiff’s declaration, or any of them in response to private inquiries made of him concerning the plaintiff, such replies or answers made to such inquiries do not excuse the defendant from liability to the plaintiff, unless the jury believe, from the evidence, that the defendant, •Taylor Ward, honestly believed in the truth of the said charges made by him at the time he made them, and unless the jury further believe from the evidence'that his said charges were in direct response to the said injuries, and were not irrelevant information gratuitously volunteered on the part of the said Taylor Ward.” All of these instructions were objected to bjr the defendant; the objection overruled, and the instructions given to the jury, the defendant excepting theretu.
Can we sustain the action of the court in giving to the jury said instruction No. 1? In it the court omits any ref erence to the question whether the utterances attributed to the defendant in the averments of the declaration were or were not privileged. A glance at the evidence shows that almost every witnéss who testifies to the fact that the plaintiff was broken up, or would be unable to meet his liabilities, was a creditor of the plaintiff, and was in a confidential manner consulting with the defendant, also a large creditor, in reference to the solvency of his brother, the plaintiff. Under the head of “Libel and Slander,” 13 Am. & Eng. Enc. Law, p. 429; we find the law thus stated: “Although evidence tending to prove the truth of the words spoken is inadmissible under the plea of not guilty, yet facts which induced the mistaken belief in the mind of the defendant that the charge was well grounded are admissible to rebut malice. The judge must decide whether the occasion is or is not privileged, and also whether such privilege is absolute or qualified. If he decide that the occasion was one of absolute privilege, the defendant is entitled to a judgment, however maliciously and treacherously he may have acted. If, however, the privilege was only qualified, the onus lies on the plaintiff of proving actual malice.” Turning to the testimony of Crirn, it appears that this witness for the plaintiff was president of the Tygarts Valley Bank; that the defendant was security for the plaintiff on a note at the Grafton Bank,, and came into Crim’s office at the bank several times to see it the note had been paid, and they consulted together as .to plaintiff’s liabilities, and ascertained them to be twenty-eight thousand dollars to thirty thousand dollars, and that is the way the conversation occurred. The bank was interested in knowing the plaintiff’s pecuniary condition, and the defendant was a creditor, and this was surely a privileged communication. Newell, in his work on Slander (page 389), in speaking of qualified privilege, says: “It. extends to all communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to a person having a corresponding interest or duty; and the privilege embraces cases where the duty is not a legal one, but where it is a moral or social character of imperfect obligation;” citing many authorities. Other parties, relatives of the defendant, who had business relations with the plaintiff, and to whom he was indebted, held confidential communications with the defendant as to the solvency of plaintiff, and, if such communications are not to be legall}'- and properly classed as privileged, a signal check will be given to those confidential business relations in every day’s transaction which tend so largely to promote the prosperity of the State. The first ands ixth instructions, above quoted, single out certain facts which the evidence may have a tendency to prove, and omit the facts so prominently shown that the words uttered, from the circumstances immediately attending their utterance, might well be considered and believed by the court and jury to be privileged communications. In the case of Woodell v. Improvement Co., 38 W. Va. 23, (17 S. E. 386), this Court held that “when the court instructs the jury that if they believe, from the evidence, certain hypothetical facts mentioned in the instructions, they must find for the party plaintiff or defendant, as the case may be, but omits from such statement of facts a material fact, which, being believed from the evidence, would require a different verdict, such instruction is erroneous, and, if excepted to and not cured,, is ground for reversal.” And in Osborne v. Francis, 38 W. Va. 312, (18 S. E. 591), it was held that “an erroneous instruction on a material point is presumed to be to the: prejudice of the party appealing against whom it is given,, and will cause reversal unless it clearly appears from the record that it was harmless.” In the case under consideration, the fact that the words claimed to have been slanderous were privileged communications was strongly relied on by the defendant. In McCreery's Adm'x v. Railroad Co., 43 W. Va. 110, (27 S. E. 327), it was held that: “When contributory negligence is relied on in defense of an action for wrongful injury or death, a hypothetical instruction directing a finding in favor of plaintiff, which omits any reference to the facts tending to establish contributory negligence, and entirely ignores such defense, is erroneous. Nor can such error be cured by other instructions given in behalf of either partj’’.” As to this last proposition, see McKelvey v. Railway Co., 35 W. Va. 501, (14 S. E. 261), where it is held that instructions must not be inconsistent with each other, and that a bad instruction is not cured-by a good one, though they be given on the motion of adverse litigants. “The bad instruction, should be with drawn.” As to hypothetical instructions, see Industrial Co. v. Shultz, 43 W. Va. 471, (27 S. E. 255).
Instruction No. 2 is erroneous in that it tells the jury that “if tbey believe, from the evidence, that the defendant has failed to show' that said words were privileged, then they should find for the plaintiff. The error consists in the fact that the question as to whether the words uttered were privileged was not a question for the jury, but was one of law for the court upon the facts proven. See quotation above given from 13 Am. & Eng. Ene. Law, p. 429. The utterance in the case at bar comes within the purview of what the law considers a qualified priviledge. Newell, Defam. p. 389. The onus lies on the plaintiff of proving actual malice, and the court erred in telling the jury, in instruction No. 2, that “if they believed, from the evidence,. that the slanderous words, or any of them, charged in plaintiff’s declaration, were uttered by the defendant against or about the plaintiff, the law will presume'that the said words were uttered maliciously, and with intent to injure the plaintiff,” without at the same time telling them that said presumption would be overthrown if the circumstances showed that the utterances were privileged, and in such case the onus of proving malice would be upon the plaintiff.
Instruction No. 6 is erroneous in that it fails to inform the jury as to the result of the words charged in the declaration to have been uttered were privileged. Whenever, in answering an inquiry, the defendant is acting bona fide in the discharge of any legal, moral, or social duty, his answer will be privileged. Id. p. 494, § 88. The defendant may, under the general issue, show that the alleged defamation consisted in a communication on matters of business made by or to persons interested in the subject-matter of the communications, although they affect the character or credit of the plaintiff. Id. p. 788. Green-leaf on Evidence (volume 2, § 421), under “Defense under the General Issue,” says: “So, if a person having information materially affecting the interests of another, hon estly communicates it privately to such other party in the full and reasonably grounded belief that it is true, he is justified in so publishing it, though he has no personal interest in the matter, and though no inquiry has been made, of him, and though the danger to the other party is not imminent.”
Having reached the conclusion that instructions Nos. 1, 2, and 6, for the above reasons, were erroneous, and should not have been given to the jury, I consider it unnecessary to discuss the testimony, or the questions raised by the action of the court in overruling the motion to set aside the verdict. The judgment is reversed, the verdict set aside, and a new trial awarded.
Reversed. | [
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BrannoN, Judge :
Jedediah W. Bartlett, administrator c. t. a. of John Ryan, ■brought assumpsit in the Circuit Court of Harrison county against John Patton, executor of Sarah Ryan, to recover the value of certain personal property which John Ryan had bequeathed for life to his widow, Sarah Ryan, and which had been in part sold and converted by her to her own' use and in part sold by her executor as part of her estate. The case was tried by a jury on the issue raised by the general issue, a verdict rendered in favor of plaintiff' for $477.50, and the court, overruling a motion for a new trial, entered j udgment on the verdict; and John Patton, executor, sued out the writ of error now in hand. Other rulings upon the trial will appear in this opinion. ■
The main point of controversy in this case is whether, under the will of John Ryan, Sarah Ryan took an absolute or only a life estate in the personalty therein bequeathed. Plaintiff, contending that she took only a life-estate, after her death sued her estate to recover the value of the personalty which she in her lifetime, or her executor after her death, sold; and the defendant contends that her estate is not liable, because she took under said will an absolute estate.
The will says: “Second. I bequeath to my loving wife all my land or farm which I now live on, and all my personal property and money and bonds' and household and cichin furniture and farming utensils, as long as she livs, I desire at the death of my wife, Sarah, that my farm which I now live on shal be sold, and one-half the money be devided equally between the heirs of my daughter Olive Bartlett, deceased, and the other to be divided equally between the heirs of my daughter Hannah Bartlett, deceased. I leave my wife my executor to live out my bequeath.”
Originally we know that by our law there could be nolim- itation over of a chattel, hut that a gift carried the absolute interest. Then a distinction was taken between the use and the property. The use might be given to one for life, and the property afterwards to another. In Randall v. Russell, 3 Mer. 195, Sir William Grant, after adverting to the former rule, says : “A gift for life of a chattel is now construed to be a gift of the usufruct only; but when the use and the property can have no separate existence it should seem that the old rule must still prevail, and that a limitation over after a life-interest must beheld to be ineffectual.” He conceived that a gift for life of thiugs quae ipso usu eonsumuntur was a gift of the property, and that there could not be a limitation over after a life-interest in such articles. 2 Bob. Pr. (Old) 97; 2 Bl. Comm. 398; 2 Lomax, Ex’rs. 69. How, there is no question but a life-estate to one with remainder to another in personalty may be given, as recognized in a large number of cases. Houser v. Ruffner, 18 W. Va. 253, and cases cited; Frazer v. Bevill, 11 Gratt. 9; Chisholm v. Starke, 3 Call. 25, and cases below.
In Madden v. Madden, 2 Leigh, 377, it was held that under the will the wife took an estate for life in such of the movables as were capable of being used and returned in kind, and a qucere was left whether the wife or her estate was accountable to the legatees in remainder for such of the movables as were consumable in their use, such as grain or money or debts.
In Dunbar v. Woodcock, 10 Leigh, 628, a will gave the residuum of the estate, real and personal, to testator’s wife for life, and after her death gave the same, as well the land as all other property remaining at her decease, to D. and wife, the residuum consisting of farm, slaves, live-stock thereon, furniture, farming utensils, crops of grain on hand, money, and debts due; and the wife took and held in kind during her life the slaves, live-stock, furniture, and farming utensils, and she appropriated the whole of the crops on hand to her own use. It was held that the will gave the legatee for life no absolute power of disposal of any of the property, and as to it all the limitation in remainder was valid ; that as to grain on hand the legatee for life was entitled to so much as was necessary for consumption in her family for the year following tes tator’s death, but her estate was accountable to the remainder-men for the value of the surplus thereof; that as to horses, farming utensils, and the like, such as were forthcoming at the life-tenant’s death were to be returned in kind in their then state, though worn; such as died or were worn out were not to be charged to her; that her estate was to be charged with the principal of what she had sold, unless other articles of same kind were substituted; that brood-mares, flocks of sheep, and the like, the life-tenant must try to keep up in kind, and her estate was accountable for them accordingly, unless destroyed or impaired by casualty. But it is to be noted that that was under a bequest of the residuum, and as to chattels falling under a residuary bequest even those which are consumed in the use are not vested as absolute property in the legatee for life, and his estate must account for them ; but they should be sold and the interest paid to the legatee for life and the principal kept for the remainder-man. 2 Kent. Comm. 353; 2 Lomax, Ex’rs, 71; Schouler, Ex’rs, § 342.
But as to those chattels consumed in the use, to give the legatee for life an absolute property in even them, the gift of them must be specific, not general. Kent says : “In the case of a bequest of specific things, as, for instance, corn, hay, and fruits, of which the use consists in the consumption, the gift of such articles for life is, in most cases, of necessity, a gift of the absolute property, for the use and the property can not exist seperately. If not specifically given, but generally, as goods and chattels, with remainder over, the tenant for life is bound to convert them into money and save the principal for the remainder-man.” So, also, says Lomax, supra. In Madden v. Madden, 2 Leigh, 389, Judge Green leaned strongly against the legatee for life having any absolute property even in specific bequests of such consumable articles.
Now, in the will in this case there is no specific bequest of such articles. Its language is, “all my personal property and money and bonds and household and kitchen furniture and farming utensils.” If the testator bequeathed any goods of a nature to be consumed in the use they must fall under the words “all my personal property,” which is a general, not a specific, bequest, as if he had said, “my wheat, rye, bacon, flour,” and the other words do not import property of that nature. . Money ■ and bonds are there named, but they are not of that nature, but are .capable of being given for life, with remainder over. Says Kent: “This limitation over in remainder is good as to every species of chattels of a durable nature, and there is no' difference in that respect between money and any other chattel interest.” Therefore, unless this will gave Sarah Ryan an absolute property in all the personal property, it gave it to her in no part of it, and I am of opinion that, in all of it she had only a life-estate. The language, “I. give to my loving wife, all my land or farm which I now live on, and all my personal property and money and bonds and household and kitchen furniture, as long as she lives,” is plain, and both in grammatical structure and common sense gives her a life-estate in both land and personal property. Had it- stopped there, there could be no question of that. What is to change it ? The suggestion in the petition for the appeal is made (for we have no argument or brief for appellant) that the balance of the will gives a remainder over in the real estate after the termination of the life-estate, but does not as to the personalty, and giving no remainder as to it would make the testator die intestate as to it if Mrs. Ryan took only a life-estate, which is against the presumption of law that, in the absence of evidence to the contrary, when one makes a will he is taken to intend to dispose of the whole estate.
It has again and again been said that the intention of -the testator is the polar star to steer us in reaching the true construction of his will, and this intention is, if possible, to be reflected by its language. As was said by Judge Tucker, in Miars v. Bedgood, 9 Leigh, 375, that intent will be “carried into effect whether the will be drafted with technical accuracy or not. The consequence of these principles seems. to be that in the construction of wills .which carry evidence upon their face that they have been the work of ignorant testators, and not of experienced and enlightened scriveners, (such is the case with the will of Ryan,) adjudicated cases can afford us little aid. As has been truly said by the great luminary of this Court, ‘adjudged cases upon wills have more frequently been produced to disappoint than to illustrate the intention.’ ” The remark here referred to is one of Pres. Pendleton in Shermer v. Shermer, 1 Wash. (Va.) 271.
It has been well said in the United States Supreme Court that‘it may be “doubted if any other source of enlightenment in the construction of a will is of much assistance, than the application of natural reason to the language of the instrument under the light which may be thrown upon the intent of the testator by the extrinsic circumstances surrounding its execution, and connecting the parties and the property devised with the testator and with the instrument itself.” Clarke v. Boorman's Ex’rs, 18 Wall. 493; Cole v. Cole, 79 Va. 255. We must look at the will, the relative situation of the parties, and decide on the circumstances of each case. 2 Minor, Inst. 963.
It seems to me, when we reflect that Ryan was aged, and his wife aged and frail, that his only heirs and distributees were eight grandchildren, three being children of his daughter Olive and five of his daughter ITannah, all his own children dead, his general design and intent was to give all his property, real and personal, to his wife for life, and after her death to these grandchildren. This was his reasonable, natural duty. Hi3 old wife would want his estate as long as she lived, and no longer; his grandchildren, with all of life before them, would need it all after her death. By the first part of the second clause of his will he in plain words did give his wife such life-estate. He did not expressly declare a remainder in the personalty in favor of his grandchildren, but did so as to the land. He knew that the law would pass the personalty to his grandchildren after his wife’s death without any words in his will. He also knew that, if he did not otherwise provide, the land would on her death go to the grandchildren ■per capita, not per stirpes, thus giving the five children of one daughter more than three children of the other daughter, whereas he desired the children of each daughter to take just their mother’s share; and he desired, also, that the land should not be partitioned, but sold, and the proceeds divided; and he was compelled to make a direction how the proceeds should go, to avoid such distribution, and in so doing he made this limitation in remainder as to the land. This is why he made such express limitation in re mainder as to the land. The personalty being small, the difference between its division per capita and per stirpes would be small, and perhaps he did not deem ,it essential to provide such a division as to it, or, more probably still, the unprofessional scrivener did not think of it, and its omission comes from a slip of his memory. Any-how, there is the language of the will.
Now, this absolute estate in Mrs. Ryan is to be raised by mere implication. That there are bequests by implication is true. 2 Redf. Wills, § 14, p. 201. But such implication must be a pregnant one, necessary to execute manifest intention, without which such intent would fail. Here to raise it would defeat such real intention. The theory of the defendant is to raise such absolute estate by implication, because the will does not expressly create a remainder to the grandchildren, and that, too, against the words of the will giving Sarah Ryan the personalty “as long as she lives.” May it not with greater reason be urged that we should raise by implication a remainder to the grandchildren ? To do so would not be against the words of the will, would give the property to distributees pointed out by law and those equally dear to the testator, his dead children’s issue, who in the long life before them would need it after his widow had done with it. They, however, need no implication, as they take by law. As I have said, the intention was to give all his property to his wife for life, then to'his grandchildren. We must'not defeat this purpose by theory or conjecture, by the technical presumption that when a man makes a will he is presumed to intend to dispose of all his estate, and not die partially intestate. There is such a rule, having a salutary influence in proper cases. But there is another rule, certainly as well settled, that the heir is not tobe disinherited except by plain language. The rule insisted upon has, in this case, to combat the other rule just stated. Here I quote, as apt, the language of the opinion of this Court by Johnson, P., in Graham v. Graham, 23 W. Va. 40.
“It was held by this Court in Houser v. Ruffner, 18 W. Va. 244, that, in construing wills, words and expressions of doubtful meaning will not be construed, if it can be avoided, so as to create an intestacy. The testator, having made his will, will be presumed to have intended to dispose of his whole estate unless the contrary plainly .appear. 'While this is true there is another rule quite as binding on the court in the construction of a will, viz., that the heir must not be «disinherited unless it is done by express terms of the will or by necessary implication. Irwin v. Zane, 15 W. Va. 646. The heir at law never takes by the act or intention of the testator. His right is paramount to and independent of the will, and no intention of the testator is necessary to its enjoyment. On the contrary, such right can only be displaced or precluded by direct words or plain intention, evincing a desire upon the part of the testator that he shall not take, etc. He needs no argument or construction showing intention in his favor to support his claim. They belong to the party claiming under the will, and in opposition to him. Augustus v. Seabolt, 3 Metc. (Ky.) 155. In Creswell v. Lawson, 7 Gill & J. 227, it was held that the heir being favored in law there should be no strained construction to work a disherison where the words are ambiguous. * * * The intention of the testator must be gathered from the will itself whenever it is possible to do so. Every word is to have its effect, provided an effect can be given to it not inconsistent with the general intent of the whole will when taken together. * * * Where a former clause is express and particular, no subsequent clause shall be permitted to enlarge it if the two clauses can stand together. When a testator, in the disposal of his property, - overlooks a particular event or matter which, had it occurred to him, he would probably have guarded against, the court will not employ or insert the necessary clause for the purpose of supplying the omission, and, though the inference of intention be more or less strong, yet, if-not necessary or indubitable, the court will not aid the supposed intention by adding or supplying words.”
We are asked here to insert words to give Sarah Kyan an absolute estate, whereas the will gives her only a life-estate, on a conjecture or hypothesis that such was his intention. This Court adopted, in Graham v. Graham, several points bearing on this case. Point 14 is here quoted: “When implications are allowed, they must be such as are necessary, or at least highly probable, and not merely possible. In construing a will conjecture must not be taken for implication. Necessary implication means so strong a probability of intention that an intention contrary to that imputed to the testator can not be supposed. The whole will, taken together, must produce the conviction that the testator’s intention was to create the estate raised by implication.”
A clearly expressed intention in one part of a will is not to yield to a doubtful construction in another part. Bell v. Humphrey, 8 W. Va. 21. Clear and unambiguous provisions in a will expressly made can not be controlled by mere inference and argument from general and ambiguous provisions in other parts of a will. Rayfield v. Gaines, 17 Gratt. 1. Sarah Ilyan took only a life-estate in said personalty. Therefore, upon her death, a right of action existed against her estate for the same, or the value of it, as she and her representative-converted it. Madden v. Madden, supra; Dunbar v. Woodcock, 10 Leigh, 628; Cross v. Cross, 4 Gratt. 263; Moorman v. Smoot, 28 Gratt. 80; Tabb v. Cabell, 17 Gratt. 172; Pettyjohn v. Woodruff, 77 Va. 507.
So far, then, as concerns the contention that the court erred in refusing a new trial because Sarah Ryan had an absolute estate in this personalty, it is untenable. The defendant’s complaint that the court refused to allow him to give in evidence the will of Sarah Ryan is not well founded. This will gave her grandchildren (children of said Olive and Hannah) one dollar each, and to other persons various legacies. I can'not see that it is relevant to the matters involved in this cause. If the personalty did not belong to her estate, if she only had her life-estate, her will could not pass it; and if she had an absolute estate, the plaintiff could not recover from her representative anything on account of it, and this regardless of her will.
As to the assignment of error in rejecting the personal property books for 1872 and 1873, showing with what property Sarah Ryan was assessed, no assesssment for 1872, but only as-to 1873, was offered as to her. The book was not offered, but only a certificate from the clerk of the County Court “that the following is an abstract showing the kind and amount of personal property with which Sarah Ryan is charged on the property books of said county for the year 1873,” giving the assessments under the several heads. No statute is cited to authorize the introduction of • such certificate or abstract. If the act found in Code, c. 130. § 5a, sub-sec.l, is relied on, it applies only to certificates of non-entry and entry of land, and requires them to be filed, and notice of the intention to use them to be given twenty days before the term. The personal property book was itself the primary evidence. I do not see, however, that the assessment book itself would be admissible.
There is no assignment of error for refusal of the court to admit certificates of the clerk as to assessment of property of John Ryan in 1872, and the non-assessment in 1873, unless there is an unintentional error in drawing the assignment.using the name Sarah instead of John, which is probable. Passing, then, upon this action of the court, the same objection applies to them, they being in the same form of certificates stated in reference to the certificate as to Sarah Ryan. Besides, it is questionable whether the book itself would have been admissible as to John Ryan’s assessment. Moreover,these certificates show that in 1872,-John Ryan was assessed with $775.00, in 1873 nothing; and that Sarah Ryan was assessed in 1873 with $845.00. Had they been introduced, they would have tended to show that John Ryan about the time of his death (which was in 1873) had personal property greater in amount than the verdict, and that in the next year Sarah Ryan was charged with a greater amount than the verdict: So I can not see how the rejection of the evidence hurt the defendant. All her property at his death was, in law, his, for there is no proof sufficient to show that he ever consented to any of her property, so called, being held as separate estate to bind even himself. Lanham v. Lanham, 30 W. Va. 222, (4 S. E. Rep. 273.)
Another assignment of error is as to the refusal of the court to set aside the verdict because of misbehavior of a juror, John Flint. Affidavits of two jurors state that Flint, after the jury retired to consider the case, stated in their presence that he knew John Ryan, and that he had more personal property than he, (Flint,) and he (Flint) was assessed with $800.00. “It is settled in this state as a general role, with but few, if any, exceptions, that the testimony of jurors will not be received to impeach their verdict.” Probst v. Braeunlich, 24 W. Va. 356. I simply refer to this case, and add the remark that there is no reason for making this instance an exception to that rule.
As to the error assigned for the admission of Hickman’s evidence. After testifying that Stephen Ratliff was dead, he was asked to state whether shortly after John Ryan’s death he heard Ratliff say anything about owing John Ryan any money at the time of his (Ryan’s) death, and he stated that shortly after Ryan’s death he heard Ratliff say he owed John Ryan $100.00 and Mrs. Ryan had called on him for it, and said if he did not pay it soon, she would sue him and make him pay; that Ratliff died, and he (Hickman) was his administrator, and Mrs. Ryan never called on him for payment. Plaintiff had a right to show a debt due to John Ryan. A debt may be shown in favor of one man against another by the latter’s admission of its existence. John Ryan’s administrator, in a suit against Ratliff, could show Ratliff’s written admission or promissory note, or prove his oral admission of a debt. As an item or a step in the establishment of his demand, the plaintiff had right to establish the same point, namely, the existence of such debt from Ratliff to Ryan. Does the difference of parties preclude him from using the same evidence which could be used in the suit supposed ? A declaration, though made by a stranger to the suit, may sometimes be used when the fact which it tends to establish is relevant to the ease, and the declaration is against the interest of the party making it, and he is dead. Men do not falsely admit debts against themselves ; and it is this presumption which induces the law to admit such a declaration. 1 Greenl. Ev. § 147.
The statement of this witness that,as administrator of Ratliff he had never been called on for payment of the debt is not. objectionable; but the statement that Ratliff told him that Sarah Ryan had demanded payment of the debt, and threatened to sue him, is improper. It may have prejudiced the defendant as proving a circumstance tending to show that Mrs. Ryan had collected the debt. Taking the whole case, should the verdict be set aside for that cause ? The evidence is clear that when John Ryan died he owned a considerable personal property, though no inventory of it was made. Shortly after his death his widow sold $500.00 of it. Shortly before his death he had some money. He and Sarah Ryan kept their money in two separate “pokes.” A witness counted that in her poke at $200.00 but did not count that in his. His house consists of a front building of four rooms, and a hack building, all pretty well furnished, there being seven beds, a set of chairs, cooking-stove, metal for kitchen, a cupboard filled with dishes, and a vast amount of bed-clothing, each one claiming a portion. Another witness says there were seventy two quilts and blankets. Ryan sold some cattle the year he died. He had three or four horses, three cows and left some cattle on the place. Hone of the furniture was included in the sale of the $500.00 worth made by the. widow. A witness, Golden, proves that Ryan had this note on Ratliff and a debt on William Bumgardner. He speaks in his will of having money and bonds. Mrs. Ryan’s appraisement bill is quite long, containing a great deal of furniture and other property, and notes, and foots up over $1,900.00. She carried on business some after his death, probably made something. On the whole, besides this $100.00 debt on Ratliff, and anything that could be allowed for chattels which would be consumed in the use, if any, there was clearly ample and abundant property to more than equal the amount of the verdict. Clearly so. This improper evidence could only tend to induce the jury lo include this $100.00 debt on Ratliff inthe property chargeable to Mrs Ryan, and therefore we say it might have entered into the verdict; but it touched only the amount of the verdict, and when we know by another witness that this debt existed, that she took charge of the whole estate, and that Ratliff, administrator, did not pay it, and further, especially, that she was chargeable with an amount of other property clearly sufficient to equal this verdict, it would seem improper to set it aside for that cause. Hall v. Lyons, 29 W. Va. 410, (1 S. E. Rep. 582); Kerr v. Lunsford, 81 W. Va. 66, (8 S. E. Rep. 493); More v. City of Huntington, 32 W. Va. -, (8 S. E. Rep. 512); Taytor v. Railroad Co., supra, p. 39; 4 Minor, Inst. 874.
Erom what has been said it follows that there is no error in refusing to- set aside the verdict because contrary to or without sufficient evidence. The judgment of the Circuit Court is affirmed, with damages and costs to the appellee.
. AFFIRMED. | [
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POFFENBARGBR, PRESIDENT :
On this appeal from a decree of divorce from bed and board, the appellant, the wife, relies upon her demurrer to the bill and each charge made therein, and insufficiency of the evi- . deuce to sustain the decree in favor of her husband.
The fourth paragraph charges wilful desertion and the sixth adultery on the part of the wife, specifying the party with whom the act is alleged to have been committed and the time and place. It is useless to consume time in the demonstration of the sufficiency of these two paragraphs.
As to the fifth and seventh paragraphs the demurrer should have been sustained. The former makes a general charge of extreme and repeated cruelty, but specifies no facts sufficient to warrant the conclusion set forth. The’ specifications are that the defendant repeatedly struck and assaulted the plaintiff, used violent and abusive language toward him, falsely charged him with having committed adultery, endeavored to get his employer to discharge him and resorted to legal proceedings to compel him to support her. These 'acts do not amount to cruel and inhuman treatment, as it is defined in the law. No imminence or even probability of personal injury by violence or loss of health by reason of annoyance and vexation is in any form alleged. “What merely wounds the feelings, without being accompanied by bodily injury or actual menace, does not amount to legal cruelty.’’ Latham v. Latham, 30 Gratt. 307; Goff v. Goff, 60 W. Va. 9, 16. “Actual violence to constitute- ground for divorce must be attended with danger of life, limb, or health, or be such as to cause reasonable apprehension of danger. It is not every slight violence committed against the wife by the husband, even in anger, which will authorize a divorce. Much less will slight acts of violence by a wife from which the husband can easily protect himself constitute cruelty entitling him to a divorce.” 14 Cyc. 602. The seventh paragraph, charging vulgar, indecent and unnatural conduct of the defendant and her solicitation of the husband to engage in such conduct with her, obviously fail to set forth any ground of divorce. Acts of mere degradation and degeneracy in one of the parties to the marriage contract are not grounds of divorce, unless made so by statute, and those charged in this paragraph are not mentioned in it. To obtain a divorce in this state, a party must bring his case within a statutory ground. Chapman v. Parsons, 66 W. Va. 307; Cariens v. Cariens, 50 W. Va. 113.
The charge of desertion is wholly unsustained by proof. The plaintiff himself admits his refusal to cohabit and live with his wife for reasons and causes not constituting grounds for a divorce, those already described in the disposition of the' demurrer to the fifth and seventh paragraphs of the bill. Under some circumstances, the innocent party may, by leaving the other, put the latter in the position of having abandoned him in the legal sense of the term. In other words, the conduct of one of the parties may justify separation from him by the other and confer right upon the leaving party to obtain a divorce upon the ground of wilful desertion. But, to justify such separation, the conduct of the guilty party must be such as to afford ground for a divorce a mensa et thoro. Alkire v. Alkire, 33 W. Va. 517; Martin v. Martin, 33 W. Va. 695.
Nor is there any proof of the charge of adultery. The plaintiff introduced as a witness the party with whom the bill alleges the defendant committed it, and he admitted the failure of his efforts to obtain her 'consent to sexual intercourse with him, though he does testify that she went with him on two occasions to a secluded place in which the act might have been performed and with evident intent on her part to engage in it with him. On the first occasion, there was no effort to induce her to do so because of the presence of a third party. On the second occasion, he says she emphatically refused, giving as the reason her belief that he was endeavoring to put her husband in a position to obtain a divorce from her. He charges her with conduct highly improper, lascivious, but not criminal, and was obviously not unfriendly in his testimony to the plaintiff. The defendant emphatically denies the conduct imputed to her by him, and explains her association with him on the occasion to which he refers. She says he had told her on a former occasion he had information to give her, and she met him on the evening to which she refers, while walking along the railroad tract, and asked him to tell her what it was. Then, for the ostensible purpose of communicating to her some secret, he induced her to walk a short distance up the hill into the woods from the railroad, and, when there, he had nothing to tell her and made an improper proposal which she indignantly rejected. This is the only effort on the part of the plaintiff to prove any act of adultery. Other evidence charges her with having associated with lewd women. She admits having left the two places successively provided for her by her husband, one because the landlady had closed her house and the other because the inmates of the house had made it unpleasant for her, 'and gone to a boarding house where she associated more or less with two women of bad repute, but she says she had been so degraded by the conduct of her husband as to make it impossible for her to associate with more desirable persons. The testimony of the manager of the restaurant at which she had a room and where she is said to have associated with the two lewd women, was taken, and, while he testified as to the bad character of the two women and the association of the defendant with them, he does not give any instance of the association of the defendant with men and he says he never saw anything suspicious in or about her room. He further says the plaintiff was taking his meals at his place, when the defendant became an inmate of the honse, and shortly thereafter paid his hill and went elsewhere. In view of the persistent efforts of the defendant to renew conjugal cohabitation with the plaintiff, it is not too much to say she probably went there in the first instance because he frequented the place. However that may be, there is no proof of any adultery on her part at that place or elsewhere. If her association with the two women who are said to have been of bad character raises a suspicion of evil mindedness on her part, that is not enough to prove the charge of adultery. Martin v. Martin, cited; Latham v. Latham, cited; Throckmorton v. Throckmorton, 86 Va. 768. To establish it, direct and positive evidence of the criminal act is not required, but the circumstantial evidence must be sufficient to establish it clearly.
In support of the decree, it is said the findihg of the trial court rests upon conflicting oral testimony. But there is no conflict in the evidence offered to prove desertion or justification of the act of the plaintiff in separating himself from his wife. As to this, the facts are admitted. The only conflict found in the testimony introduced to prove the charge of adultery relates to the reputation of the defendant for chastity. There is no direct evidence of any adulterous act, as has been shown, and there is conflict as to her reputation. Several witnesses say she obtained a bad reputation by her association with two evil minded women, but perhaps an equal number deny the aspersion upon her character and reputation. Thus the conflict in the testimony narrows down to facts and circumstances which, if established, do no more than raise a suspicion. The defendant’s conflicting evidence as to these matters may be rejected and still there is lack of sufficient evidence of adultery. Moreover, the trial court evidently did not find her guilty of adultery, since the decree was from bed and board, and adultery would have authorized one a vinculo.
The denials of the answer, putting in issue all the material allegations of the bill, are followed by matter upon which there is predicated a prayer for an allowance-of alimony by way of affirmative relief, and the trial court, notwithstanding the decree of divorce in favor of the plaintiff, required him to pay the defendant alimony in the sum of $25.00 per month for two years. In view of Ms -unjustifiable desertion of her and refusal to support her, she is entitled, upon principles declared in Purcell v. Purcell, 4 H. & M. 507, and Almond v. Almond, 4 Rand. 662, to an allowance of alimony for her maintenance, until such time as a reconciliation may be effected or'until the right to it may be barred in some legal way. In our opinion, the monthly allowance decreed by the trial court is large enough under the circumstances. The plaintiff seems to have little or no estate. He is a railroad engineer making good wages out of which he ought to be able to pay the. $25.00 per month without embarrassment. The defendant herself has considerable property and is not wholly dependent upon her husband for support.
The decree for alimony is erroneous in two respects, however. It limits the period of payment to the 7th day of February, 1912. It further provides that, the acceptance by the defendant of any portion thereof shall be an acquiescence in the decree of divorce and bar and preclude her right to an appeal from it, and that an application for an appeal from the decree shall render the provision for alimony ineffectual, inoperative and void. The latter provisions are coercive in their operation and effect and unduly restrain the liberty and right of the appellant as a litigant. After the appeal was allowed, the error of the court in the insertion thereof in the decree was confessed here.
As the decree is clearly erroneous in almost every respect, it will be reversed and a decree will be entered here upon the prayer in the answer for cross relief, requiring the- plaintiff to pay to the defendant the sum of $25.00 per month from the 14th day of September, 1910, the date of the decree appealed from, until the parties become reconciled and renew cohabitation, or the allowance becomes in some way barred by the conduct of the defendant, or until the further order of the circuit court of McDowell county, and the cause will be remanded for execution of the decree.
Reversed and Remanded. | [
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CLECKLEY, Justice:
This case was originally submitted for decision at the September, 1994, term of this Court, arid an opinion was filed on December 8, 1994. Thereafter, the plaintiff below and appellee herein, Mary Jane Barefoot, Admin-istratrix of the Estate of Grace Lambert, petitioned for a rehearing and said petition was granted. On April 4,1995, this case was reheard and the Court, thereafter, withdrew the original opinion. We now issue the following opinion.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The defendant below and appellant herein, Sundale Nursing Home, appeals the decision of the Circuit Court of Monongalia County upholding a jury verdict awarding Mary Jane Barefoot, Administratrix of the Estate of Grace Lambert, $32,000 because of Sundale’s alleged discriminatory discharge of Ms. Lambert. On appeal, the defendant asserts several assignments of error including the plaintiffs failure to establish a prima facie case showing discrimination or, in the alternative, the plaintiffs failure to prove the defendant’s business excuse was a pretext for discriminatory purposes.
On June 14, 1991, Theresa L. Ratcliffe, a nursing assistant employed by Sundale, reported Ms. Lambert (the decedent), another nursing assistant employee, struck the patient with whom they both were working, causing a skin tear on his arm. The matter was reported to Nancy Edgell, the Director of Nursing. After informing Jerry Bair, Sundale’s administrator, and other adminis trators, Ms. Edgell interviewed Ms. Ratcliffe, the floor nurse who examined the patient, and Ms. Lambert. Ms. Edgell also reviewed the patient’s medical records, visited the patient, and observed the skin tear on his arm. According to Ms. Edgell, Ms. Lambert said “she didn’t cause the skin tear but she did not refute the fact that she had struck the resident.” In an unrelated matter before a State Employment Security Administrative Law Judge, Ms. Lambert gave the following testimony:
“ ‘I did not put the skin tear on the man and all I did was tap him on the top. He had his fist like this. So, this is the way that he comes into my stomach; and I just tapped him on the top of the hand. I did not hurt the man. He never even said “ouch” and that was just to calm him down from hitting me the fifth time in the stomach and if I had of put a skin tear on him, I would have gone straight to the nurse but I did not put a skin tear on the man.’ ”
According to the defendant’s personnel manual, the first offense penalty for “[ajbuse of resident, use of obscene or abusive language, striking, threatening, or harassing a resident” is discharge. Ms. Lambert’s personnel file contained a receipt acknowledging that Ms. Lambert received Sundale’s personnel manual and read and understood Sun-dale’s personnel policies. Following an investigation of the alleged incident, Sundale dismissed Ms. Lambert for striking a resident.
Following her June 14,1991, dismissal, Ms. Lambert filed suit on January 24,1992, alleging she was discharged because she was female, over forty years old, and a Native American. On January 31, 1992, while this suit was pending, Ms. Lambert died of cardiac arrest ; Ms. Barefoot was substituted as plaintiff.
At trial, the plaintiff presented evidence supporting a prima, facie case of both disparate treatment and disparate impact by the defendant. The plaintiff also attempted to establish that the decedent’s discharge was discriminatory by presenting evidence that other employees who had struck patients were not fired and the defendant fired all five of its Native American employees within a six- to eight-month period.
After the jury returned a verdict against Sundale awarding the plaintiff $32,000, the circuit court denied the defendant’s motion for judgment notwithstanding the verdict or, in the alternative, granting a new trial. Sun-dale then appealed to this Court.
II.
SUFFICIENCY OF EVIDENCE
A. Standard of Review
Sundale challenges the sufficiency of the evidence to support the verdict and judgment entered in this case. Essentially, Sundale argues it was entitled to judgment as a matter of law for failure of the plaintiff to meet her burden of proof at trial.
Rule 50(b) of the West Virginia Rules of Civil Procedure allows a defendant to move for a judgment notwithstanding the verdict if, with respect to an issue essential to a plaintiffs case, there exists no legally sufficient evidentiary basis for the jury to find in favor of the plaintiff. 5A James W. Moore, Moore’s Federal Practice ¶ 50.08 at 50-76 (2nd ed. 1994). Under this rule, a circuit court may enter a favorable ruling for the movant if, after examining the evidence and all reasonable inferences therefrom in the light most favorable to the nonmovant, it determines the evidence could lead a reasonable person to only one conclusion favorable to the movant. Powell v. Time Ins. Co., 181 W.Va. 289, 382 S.E.2d 342 (1989).
If there is reasonable doubt, that is evidence of such quality and weight that reasonable and fair minded jurors might reach a different conclusion, then the motion should be denied. In Syllabus Point 1 of Mildred L.M. v. John O.F., 192 W.Va. 345, 452 S.E.2d 436 (1994), this Court stated:
“In reviewing a trial court’s ruling on a motion for a judgment notwithstanding the verdict, it is not the task of the appellate court reviewing facts to determine how it would have ruled on the evidence presented. Its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, in ruling on a motion for a judgment notwithstanding the. verdict, the evidence must be viewed in the light most favorable to the nonmoving party. If on review, the evidence is shown to be legally insufficient to sustain the verdict, it is the obligation of this Court to reverse the circuit court and to order judgment for the appellant.”
Thus, a circuit court’s denial of a motion under Rule 50 of the Rules of Civil Procedure will be reversed only if the facts and inferences point so strongly and overwhelmingly in favor of the movant that a reasonable jury could not reach a verdict against the movant. In performing this analysis, the credibility of the witnesses will not be considered, conflicts in testimony will not be resolved, and the weight of the evidence will not be evaluated. In other words, we will reverse the circuit court’s ruling denying such a motion if, after scrutinizing the proof and inferences derivable therefrom in the light most hospitable to the plaintiff, we determine that a reasonable factfinder could have reached but one conclusion: Sundale was entitled to judgment. A denial of a motion for j.n.o.v. is reviewed de novo, which means the same stringent decisional standards that control circuit courts are used. While our review of this motion is plenary, it also is circumscribed because we must review the evidence in the light most favorable to the plaintiff. See Singer v. Dungan, 45 F.3d 823, 827 (4th Cir.1995). Against this backdrop, we examine the claim that the circuit court improperly denied the defendant’s motion below.
B. Disparate Treatment
We have consistently held that cases brought under the West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq., are governed by the same analytical framework and structures developed under Title VII, at least where our statute’s language does not direct otherwise. E.g., West Va. University v. Decker, 191 W.Va. 567, 447 S.E.2d 259 (1994); Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986). Under the burden-shifting McDonnell Douglas-Burdine framework for analyzing pretext claims, a plaintiff must first create an inference of discrimination by establishing a pri-ma facie case. See St. Mary’s Honor Center v. Hicks, — U.S. -, -, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407, 416 (1993); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207, 214-15 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677-78 (1973), receded from by Hazen Paper Co. v. Biggins, — U.S. -, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). The burden of production then shifts to the defendant to proffer a legitimate, nondiscriminatory reason for the challenged employment action. See St. Mary’s Honor Center, — U.S. at -, 113 S.Ct. at 2747, 125 L.Ed.2d at 416 (employer must produce evidence of a nondiscriminatory reason to rebut the presumption of discrimination created by the prima facie case). See also Burdine, 450 U.S. at 253, 101 S.Ct. at 1093, 67 L.Ed.2d at 215; McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at 677-78. Finally, the plaintiff then is accorded an opportunity to demonstrate that either age, gender, or ancestry was a determinative factor in the defendant’s employment decision or the defendant’s articulated rationale was merely a pretext for discrimination. See St. Mary’s Honor Center, — U.S. at -, 113 S.Ct. at 2747-48, 125 L.Ed.2d at 416; Burdine, 450 U.S. at 253, 101 S.Ct. at 1093, 67 L.Ed.2d at 215; McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825, 36 L.Ed.2d at 678-79. Pretext may be shown through direct, or circumstantial evidence of falsity or discrimination. The plaintiff’s failure to come forth with evidence rebutting the defendant’s explanation may entitle the defendant to judgment. See Burdine, 450 U.S. at 255-56, 101 S.Ct. at 1094-95, 67 L.Ed.2d at 216-17.
As a threshold matter, the defendant argues this Court should reverse the circuit court’s decision because the plaintiff did not meet her initial burden of proving a prima facie case of gender, ancestry, or age discrimination. Under one accepted view, we could decide this appeal without resolving whether the plaintiff proved a prima facie case. “Where the defendant has done everything that would be required of [it] ... if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.” United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403, 410 (1983). See also E.E.O.C. v. Ethan Allen, Inc., 44 F.3d 116, 119 (2nd Cir.1994); Bhaya v. Westinghouse Electric Corp., 832 F.2d 258, 260 (3rd Cir.1987), cert. denied, 488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989); E.E.O.C. v. Century Broadcasting Corp., 957 F.2d 1446, 1455 (7th Cir.1992). Here, Sun- dale failed to persuade the circuit court to grant the motion for a directed verdict at the close of the plaintiffs case-in-chief. The defendant then responded to the plaintiffs proof by offering evidence of its nondiscriminatory reasons for the dismissal of the decedent. As a result, we may affirm if there existed sufficient evidence for a jury to find the decedent’s termination discriminatory within the meaning of the West Virginia Human Rights Act. See Athens, 460 U.S. at 715, 103 S.Ct. at 1481, 75 L.Ed.2d at 410.
Because the jury found the plaintiff bore her burden, we can reverse the circuit court only if we find the jury’s decision was unsupported by the evidence. Mildred L.M. v. John O.F., supra. For reasons expressed below, we believe the plaintiff did present a legally sufficient evidentiary basis from which a reasonable jury could find the defendant discriminated against the decedent under the West Virginia Human Rights Act.
Athens notwithstanding, an alternative disposition could turn on a plaintiff’s success or failure in proving the prima facie case. If the plaintiff failed in that effort, in the sense that no reasonable jury could find a prima facie case, then we would have to reverse because the defendant would necessarily have some legitimate explanation for making the adverse employment decision. Moreover, if we conclude that the plaintiff did offer sufficient evidence from which a reasonable jury could find a prima facie case, then, as explained below, the circuit court as a matter of law had to submit the case to a jury, and we, therefore, have to affirm the jury verdict. For these reasons, and to clarify our case law on both the prima facie case and the proof of pretext, we will assess the evidence in this case under the traditional McDonnell Douglas-Conaway framework.
At the outset, we note some confusion about the prima facie case may have developed from the third prong of the analysis we set forth in Conaway that “[b]ut for the plaintiff’s protected status, the adverse decision would not have been made.” 178 W.Va. at 170, 358 S.E.2d at 429. Use of the “but for” language in that test may have been unfortunate, at least if it connotes that a plaintiff must establish anything more than an inference of discrimination to make out a prima facie case. But the Conaway decision itself disavowed any desire to require more: “What is required of the plaintiff is to show some evidence which would sufficiently link the employer’s decision and the plaintiffs status as a member of a protected class so as to give rise to an inference that the employment decision was based on an illegal discriminatory criterion.” 178 W.Va. at 170-71, 358 S.E.2d at 429-30. Moreover, the majority in Conaway expressly noted it was not overruling our decisions in either Shep-herdstown Volunteer Fire Department v. State ex rel. State of West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983) (applying the federal test formulated in McDonnell Douglas, supra), or State ex rel. State of West Virginia Human Rights Commission v. Logan-Mingo Area Mental Health Agency, Inc., 174 W.Va. 711, 329 S.E.2d 77 (1985) (applying a variation of the McDonnell Douglas standard). Rather, Conaway said its general test was inclusive of the analyses in those cases. To further clarify, we now hold the “but for” test of discriminatory motive in Conaway is merely a threshold inquiry, requiring only that a plaintiff show an inference of discrimination.
When Conaway is read in this context, it becomes clear the plaintiff in this case offered a prima facie case; in fact, depend- mg upon how one wants to break down the facts, she may have offered two. The plaintiff alleged a discriminatory discharge and adduced evidence that: (1) the decedent was a member of a protected class (Native American) ; (2) the decedént provided competent, capable, and loyal service to her employer; (3) the decedent was discharged; and (4) the decedent was replaced by someone not of her protected class. These facts, standing alone, create an inference of discrimination. If the decision is not explained, we would suspect the employer had an illicit motive; a fair and rational employer does not fire an employee who is performing adequately and then hire someone totally new to replace the discharged worker. Of course, the employer might have a rational explanation for its action. When that explanation is offered, a function of the prima facie case is served; it is designed to allow a plaintiff with only minimal facts to smoke out a defendant — who is in control of most of the facts— and force it to come forward with some explanation for its action. E.g., Conaway, supra; Burdine, supra In this case, the plaintiff supported the skeletal prima facie case with evidence that the employer also purged all other members of the decedent’s class from its workforce over a period of six to eight months. Thus viewed, the plaintiff clearly established an inference of discrimination, and the circuit court was correct in requiring the defendant to offer a legitimate, nondiscriminatory reason for its discharge decision or face a directed verdict.
The defendant responded. It contended the decedent was terminated because she hit a patient at the nursing home. Undoubtedly, that is (if believed by the jury) a legitimate, nondiscriminatory reason. But that explanation also gave rise to a second possible prima facie case when the plaintiff offered evidence that other employees who were not members of the decedent’s protected class hit patients and were not discharged. This meets the prima facie case outlined in Syllabus Point 2, in part, of Logan-Mingo Mental Health Agency, supra, which Conaway expressly reaffirmed:
“A complainant in a disparate treatment, discriminatory discharge case ... may meet the initial prima facie burden by proving, by a preponderance of the evidence, (1) that the complainant is a mem ber of a group protected by the Act; (2) that the complainant was discharged, or forced to resign, from employment; and (3) that a nonmember of the protected group was not disciplined, or was disciplined less severely, than the complainant, though both engaged in similar conduct.”
Accord McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). This prima facie burden is precisely what the plaintiff offered in this case.
In an attempt to rebut the plaintiffs prima facie case, the defendant responded to the plaintiffs evidence of inconsistent treatment of comparison employees by asserting the plaintiffs evidence was not only inconclusive, but the comparison employees were actually members of the decedent’s protected class. Thé first comparison employee was a black female — not a Native American. Unless a comparison employee and a plaintiff share the same disputed characteristics, the comparison employee cannot be classified as a member of a plaintiffs class for purposes of rebutting prima facie evidence of disparate treatment. Therefore, so long as the employee in this case was not a Native American, it is irrelevant whether she was black, white, yellow, or purple.
The defendant also claims the second comparison employee, Ms. Edgell, was a member of a protected class because she testified, without substantiation, that she was of “Native American heritage” from her grandmother’s side “back about six generations.” It is not clear whether that is six generations back from her grandmother or from Ms. Edgell. Here, the defendant fails to consider that an employer could discriminate against an individual who is obviously and predominantly a member of a racial minority, but not discriminate against one who is somewhere between 1/64 and 1/256 minority blood (depending upon where those six generations start). Proof that an employer disciplined the former but not the latter when both engaged .in similar conduct is prima facie evidence of racial or ancestral discrimination; unless it is explained, such disparate treatment violates the Human Rights Act.
Moreover, the jury may very well have disbelieved Ms. Edgell that she, too, was of Native American ancestry. Certainly, the defendant offered no evidence to support Ms. Edgell’s ancestral claim. Although we cannot tell from the record, the jury also may have taken into account the witnesses’ (ie., Ms. Barefoot’s and Ms. Edgell’s) physical appearances. The record fails to justify a conclusion that no reasonable jury could disbelieve Ms. Edgell.
The record also fails to warrant the conclusion that no reasonable jury could conclude there had been a discriminatory discharge. One could reasonably argue from the record (which is all it takes to sustain a jury verdict) that: Ms. Edgell was not believable; the decedent did not abuse the patient by “tapping” him; the decedent acted in necessary self-defense; the incident was conveniently (and pretextually) blown way out of proportion; the decedent was a very conscientious and loyal employee; an employee with the decedent’s work history would normally be given the benefit of a doubt; the defendant failed to meaningfully investigate the charge and merely seized the opportunity to get rid of the decedent; the defendant’s failure to discipline others for similar conduct evidenced pretext; and the defendant was on a mission to purge Native Americans from its workforce.
This line of reasoning does not follow inexorably from the record, but it does follow reasonably. And under the appropriate standard of review that is enough. It must be remembered the question for this Court is whether the record evidence reasonably supports an inference that Sundale did not act for nondiscriminatory reasons and not whether the evidence necessarily leads to the conclusion that Sundale did act for dis criminatory reasons. On the other hand, the plaintiff need not show more than that the defendant’s articulated reasons were implausible and, thus, pretextual. After the employer has articulated a nondiscriminatory justification for its employment decision, to defeat a motion for a directed verdict, a plaintiff need not show more than the articulated reasons were implausible and, thus, pretextual. A finding of pretextuality allows a juror to reject a defendant’s proffered reasons for a challenged employment action and, thus, permits the ultimate inference of discrimination. See DeMarco v. Holy Cross High School, 4 F.3d 166, 170 (2nd Cir.1993) (“[pjroof that the employer has provided a false reason for its action permits the finder of fact to determine that the defendant’s actions were motivated by an improper discriminatory intent, but does not compel such a finding”), citing St Mary’s Honor Center, — U.S. at -, 113 S.Ct. at 2748-49, 125 L.Ed.2d at 417-19.
When the evidence is read in the light most favorable to the plaintiff, a jury could reasonably find that Sundale terminated the decedent not because of the alleged assault, but rather because of her age, gender, and/or ancestry. The plaintiffs attack on Sundale’s stated reasons for the discharge leaves this Court with the classical and paradigmatic case in which each party has produced testimony and evidence that conflicts on the ultimate issue — whether the decedent was discharged for her abusive conduct or for other factors violative of the Human Rights Act. This resulting conflict must be resolved by a jury and not by a circuit court as a matter of law. Indeed, reversing this case violates the limitations imposed on judges by the right to trial by jury in Section 13 of Article III of the West Virginia Constitution. Zambelli v. House, 188 W.Va. 423, 424 S.E.2d 768 (1992) (error to grant motion in light of multitude of factual issues which require jury resolution).
C. Disparate Impact
In addition to alleging intentional discrimination, the plaintiff advanced a disparate impact claim based on evidence that over a period of six to eight months, the defendant fired all five of its Native American employees, beginning with the decedent. Recently, in Syllabus Point 1, in part, of West Virginia University v. Decker, supra, we stated:
“In view of the language and purpose of the Human Rights Act, W.Va.Code[,] 5-11-1 [1967] et seq., as it now stands, and the language of this Court in Guyan Valley Hospital, Inc. v. West Virginia Human Rights Comm’n, 181 W.Va. 251, 382 S.E.2d 88 (1989), we now hold that there is a cause of action for ‘disparate impact’ that applies equally to all claims arising under W.Va.Code, 5-11-1 [1967] et seq.IT
“Unlike disparate treatment analysis, which turns on illegal motive, disparate impact turns on discriminatory effect.” West Va. Univ. v. Decker, 191 W.Va. at 572, 447 S.E.2d at 264. (Emphasis in original).
In Decker, we noted that the 1991 amendments to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., shifted the burden of production and persuasion to the employer to show that an employment practice, which had a disproportionate adverse impact on a protected trait, is “both ‘job related’ and ‘consistent with business necessity1. [Footnote omitted.]” 191 W.Va. at 572, 447 S.E.2d at 264. Based on the 1991 amendments, we abandoned the disparate impact test of Guyan Valley, supra and in Syllabus Point 3 of Decker held:
“In proving a prima facie case of disparate impact under the Human Rights Act, W.Va.Code[,] 5-11-1 [1967,] et seq., the plaintiff bears the burden of (1) demonstrating that the employer uses a particular employment practice or policy and (2) establishing that such particular employment practice or policy causes a disparate impact on a class protected by the Human Rights Act. The employer then must prove that the practice is ‘job related’ and ‘consistent with business necessity.’ If the employer proves business necessity, the plaintiff may rebut the employer’s defense by showing that a less burdensome alternative practice exists which the employer refuses to adopt. Such a showing would be evidence that employer’s policy is a ‘pretext’ for discrimination.”
In this case, the plaintiff attempted to show the alleged discriminatory effect of the defendant’s practice or policy through a witness who testified about the decedent’s discharge and three other discharges, two discharges allegedly for union activity and the witness’s dwn discharge allegedly for patient abuse. The witness acknowledged that only one of the persons allegedly discharged for union activity was a Native American and did not provide any information about the fifth discharge. The plaintiff did not present any evidence comparing the discharge rate of the Native Americans to the general discharge rate of non-Native Americans.
The defendant’s administrator, Jerry Bair, testified that Sundale did not discharge all its Native American employees and that three Native Americans were currently employed at Sundale. Mr. Bair acknowledged one Native American was discharged for insubordination in the heat of a union organizing campaign, one was a temporary summer employee who left at the end of summer, and one was fired for excessive absenteeism.
In Syllabus Point 2 of Dobson v. Eastern Associated Coal Corp., 188 W.Va. 17, 422 S.E.2d 494 (1992), we stated:
‘“Disparate impact in an employment discrimination case is ordinarily proved by statistics[.]’ Syl. pt. 3, in part, Guyan Valley Hospital, Inc. v. West Virginia Human Rights Commission, 181 W.Va. 251, 382 S.E.2d 88 (1989).”
See also Syl. pt. 3, in part, Dobson (“it is not an abuse of discretion for the circuit court to allow the use of such statistical evidence if the defendant has the opportunity to rebut the same”). In this case, the plaintiff did not meet her burden of establishing the defendant’s policy caused a disparate impact on a protected class. The plaintiff offered no statistical evidence comparing the protected class to the non-protected class and her anecdotal evidence concerning the other discharges was insufficient as a matter of law.
Thus, we fully' agree with the defendant’s conclusion that the plaintiff failed to establish a claim of disparate impact. The plaintiffs contention that the defendant’s discharge decisions had a disparate impact does not adequately focus on a particular employment practice or policy. Moreover, even if the claim is narrowed to challenge only the defendant’s rule that hitting a patient is per se a dischargeable offense, the plaintiff failed to show a disparate impact. There is no basis in the record, logic, or common experience to suggest that a rule requiring automatic discharge of employees for hitting a patient would adversely affect Native Americans. In fact, it is so absurd that merely stating the contention gives cause to reject it.
D. Summary
We find the plaintiff offered sufficient evidence of intentional discrimination for this case to be sent to the jury. While the evidence presented by the defendant might well demonstrate the decedent was terminated for reasons not related to gender, age, or ancestry, “this is a question better left for the jury to resolve.” E.E.O.C. v. Ethan Allen, Inc., 44 F.3d at 120. Accordingly, we conclude the circuit court properly denied the defendant’s Rule 50 motion.
III.
OTHER ASSIGNMENTS OF ERROR
The defendant assigns several other errors: (1) the use of a special verdict form that failed to require the jury to make specific findings of discrimination, to separate economic and non-economic damages, and to permit damages for reasons other than for discriminatory discharge; (2) various instructional errors including improperly instructing the jury on the measure of damages, not instructing the jury on the defendant’s right to discharge the decedent for violations of the defendant’s personnel policy, and improperly instructing the jury on what constitutes discrimination; (3) improperly permitting the introduction of evidence on unsafe working conditions, discriminatory hiring, and affirmative action; and (4) the improper and prejudicial behavior of plaintiff’s counsel during trial.
After conducting a careful review of the record and the briefs of the parties, we find only one of the defendant’s remaining errors merits discussion. The defendant contends that under the circumstances of this case the circuit court was required to submit a special verdict form to the jury, and the failure to do so constitutes reversible error. We disagree.
As a general rule, a trial court has considerable discretion in determining whether to give special verdicts and interrogatories to a jury unless it is mandated to do so by statute. See Syl. pt. 15, Carper v. Kanawha Banking & Trust Co., 157 W.Va. 477, 207 S.E.2d 897 (1974) (“[i]n absence of statutory requirement, whether a jury shall be compelled to answer special interrogatories before arriving at a general verdict, is a matter resting in the sound discretion of the trial court.”); Torrence v. Kusminsky, 185 W.Va. 734, 745, 408 S.E.2d 684, 695 (1991) (“[a]s is evident by the use of the permissive word may in ... [Rule 49(b) ], whether to give special interrogatories to the jury is within the trial court’s discretion”). Moreover, in Teter v. Old Colony Co., 190 W.Va. 711, 720, 441 S.E.2d 728, 737 (1994), we quoted C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2506 at 498-500 (1971), for the following proposition with regard to Rule 49(a):
“ ‘The court has considerable discretion about the nature and scope of the issues to be submitted to the jury under Rule 49(a) so long as they present the case fairly. All material factual issues should be covered by the questions submitted. The court need not and should not, however, submit an issue that can be properly resolved as a matter of law. It is not error to refuse to put an issue that is adequately covered by other questions that have been put.’ (Footnotes omitted).”
Thus, while we recognize there is a distinction between Rule 49(a) and Rule 49(b), this Court clearly has granted trial courts discretion in determining matters under both parts of the rule.
As a related matter, although we do not specifically cite Rule 49 in the opinion, we held in Syllabus Point 6 of Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984):
“Where a jury returns a general verdict in a case involving two or more liability issues and its verdict is supported by the evidence on at least one issue, the verdict will not be reversed, unless the defendant has requested and been refused the right to have the jury make special findings as to his liability on each of the issues.”
See also Casteel v. Consolidation Coal Co., 181 W.Va. 501, 383 S.E.2d 305 (1989). We further stated in Orr that a trial court is not required to submit a special interrogatory or verdict form in every case where there are multiple causes of action. Such special interrogatories or verdict forms may be refused “[i]f the judge believes there is sufficient evidence to support jury consideration of the various causes of action[.]” 173 W.Va. at 350, 315 S.E.2d at 608. We concluded “only when the trial judge is specifically requested by the defendant to submit special findings and refuses to do so, and on appeal we conclude that one of the causes of action given to the jury is insufficient as a matter of law that a reversal will occur.” 173 W.Va. at 350, 315 S.E.2d at 608.
In West Virginia, there appear to be three expansions to the general rule that special verdicts and/or special interrogatories are within the complete discretion of the trial court. The first is where special interrogatories are compelled by statute, e.g., Mandolidis v. Elkins Indus., Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978), superseded by statute/rule as stated in Handley v. Union Carbide Corp., 804 F.2d 265 (4th Cir.1986), and its progeny. See Syl. pt. 2, Smith v. Perry, 178 W.Va. 395, 359 S.E.2d 624 (1987) (“[w]here not required by statute, special interrogatories in aid of a general verdict should be used cautiously and only to clarify rather than to obfuscate the issues involved” (Citation omitted)). The second is in cases involving multiple causes of action where at least one of the causes of action is not supported by sufficient evidence to make it a legitimate jury issue. The third expansion involves punitive damage eases. At oral argument, the defendant made it clear it was the second expansion upon which it relies. We do not believe any of the expansions apply to this case.
This is not a case where the plaintiff presented three claims or causes of action, e.g., intentional discrimination, a Harless claim, and breach of contract. Rather, it is a case in which the plaintiff used a combination of motives to prove one claim or cause of action. What the defendant overlooks is that in cases such as this one the jury need not agree on a single legal theory or motive of intentional discrimination when more than one has been charged and submitted to it. The jury merely found the defendant guilty of intentional discrimination. Arguably, there was some evidence in support of all three motives. It certainly is not error to permit the plaintiff to use three different motives to prove the same thing, ie., intentional discrimination. That is especially true when a jury could reasonably find, as in this case, that the adverse employment decision resulted from a combination of illegal motives.
Thus, the , relevant question is whether it is acceptable to permit the jury to reach one verdict based on a combination of alternative findings. We are cited no authority suggesting that in civil rights cases where a general verdict is sought, the jurors should be required to agree on a single means by which the defendant committed intentional discrimination. To the contrary, we believe in employment discrimination cases a general verdict is valid so long as it is legally supportable on one or more of the theories submitted, even though that gives no assurance that a valid theory rather than an invalid one is the basis for the jury’s action. Although it would be preferable to give special verdict forms in multiple theory employment discrimination cases, which would remove doubt as to the jury’s consideration of any alternative basis of liability that does not have adequate evidentiary support, the refusal to do so does not provide an independent basis for reversing an otherwise valid judgment.
What the defendant seeks is an expansion of Orr v. Crowder, supra, which was itself an expansion of the general rule. As we stated previously, the rule announced in Orr v. Crowder, supra, applies only to multiple causes of action and does not apply to cases where a combination of illegal motives are asserted to prove intentional discrimination. To the extent that a per se reversible error rule was announced in that case, we believe it should be limited to that specific situation and expansion of this rule is unwarranted. If we followed the logic of the argument of the defendant, there would be no instances in which several acts or motives in the conjunctive are asserted as the basis for a claim that a special verdict form could be denied by the trial court. As the Supreme Court stated in Griffin v. United States, 502 U.S. 46, 59, 112 S.Ct. 466, 474, 116 L.Ed.2d 371, 382-83 (1991), “£j]urors are not generally equipped to determine whether a particular theory ... is contrary to law ... [but] are well equipped” to determine whether a particular theory is supported by the evidence. (Emphasis in original). In Griffin, the Supreme Court acknowledged it generally would be preferable to give the requested verdict forms, but the refusal to provide these to the jury is not alone a ground for reversal.
Concededly, there are some circumstances where a general verdict may so obscure the basis upon which a jury considering multiple theories finds liability that fundamental fairness will not permit upholding a verdict possibly based upon the unsupported theories. Under harmless error analysis, however, a verdict generally will be upheld even where the general verdict issue has been raised if by careful scrutiny of the record it is possible to ascertain with a high degree of probability that the jury did not rely upon the arguably unsupported theories. See Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). In the present case, the defendant failed to convince the circuit, court that the jury was misled by its instructions on intentional discrimination or that special verdict forms were necessary to prevent the jury from wrongfully deciding the case on improper grounds. Similarly, deference is appropriate because the trial court is better able than an appellate court to decide whether the refusal to submit this case by special verdict forms affected any substantial rights of the defendant. We conclude the decision was the circuit court’s call, and we find no abuse of that discretion.
We do not say today that a circuit court cannot give special verdict forms which would help eliminate any doubt as to the basis of a jury’s verdict. Indeed, we believe the giving of a special verdict form to the jury would have been preferable, but the refusal to do so does not provide an independent basis for reversing an otherwise valid judgment. Our holding is a limited one: When a jury returns a verdict based on a party’s evidence charging several acts in the conjunctive, the verdict will stand if the evidence is sufficient with respect to any one of the acts charged even though a more specific verdict form was asked for and denied.
V.
CONCLUSION
For the aforementioned reasons, the judgment of the Circuit Court of Monongalia County is affirmed.
Affirmed.
. Ms. Lambert filed this suit about six months after her discharge from Sundale. Upon Ms. Lambert’s death, Ms. Barefoot, her daughter and the administratrix of her estate, was substituted as plaintiff. Under W.Va.Code, 55-7-8a(b) (1959), when an action has been filed by an injured party and the injured party subsequently dies, the action "may be revived in favor of the personal representative of the injured party[.]”
. Ms. Ratcliffe moved to Florida and did not testify at trial. According to her notarized statement introduced at trial, Ms. Ratcliffe saw Ms. Lambert strike the patient.
.The record contains testimony that before Ms. Lambert tapped or struck the resident, he punched her several times in the lower abdomen, which was alleged to have caused the pain that led to Ms. Lambert’s final hospitalization. However, no workers’ compensation claim was filed and no private cause of action exists under the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678, for an allegedly unsafe working condition. See Handley v. Union Carbide Corp., 804 F.2d 265, 266 (4th Cir.1986).
. Hereafter, Ms. Lambert will be referred to as the decedent and Ms. Barefoot will be referred to as the plaintiff.
. At the conclusion of the plaintiff's evidence, a directed verdict was granted on behalf of Ms. Edgell and Mr. Bair.
. The standard for granting a judgment notwithstanding the verdict is the same as for a directed verdict, i.e., after considering the evidence in the light most favorable to the nonmovant, only one reasonable verdict is possible. Huffman v. Appalachian Power Co., 187 W.Va. 1, 415 S.E.2d 145 (1991); Fleming James, Jr., Geoffrey C. Hazard, Jr., & John Leubsdorf, Civil Procedure § 7.30 at 406-07 (4th ed. 1992). Under this standard, a judgment notwithstanding the verdict should be denied if the evidence is conflicting or is insufficient to establish the movant's case.
. The abbreviation stands for judgment non ob-stante verdicto. In federal courts, j.n.o.v. is also known by another label. Amendments to Rule 50 of the Federal Rules of Civil Procedure abandoned the terms "directed verdict” and "judgment n.o.v.," which were commonly associated with the former rule, in favor of the phrase "judgment as a matter of law.” See generally Fed.R.Civ.P. 50 advisory committee’s note. The amendment did not, however, affect either the standard by which a trial court reviews motions under the rule or the standard by which an appellate court reviews a trial court’s ruling.
. In Syllabus Point 6 of McClung v. Marion County Commission, 178 W.Va. 444, 360 S.E.2d 221 (1987), this Court stated:
" ‘In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.’ Syl. pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984).’’
. Where, however, there are substantive distinctions between the language used by the two statutes, we have inferred a State legislative intent to diverge from the federal law and have ruled accordingly. E.g., Chico Dairy Co. v. W.Va. Human Rights Comm'n, 181 W.Va. 238, 382 S.E.2d 75 (1989); W.Va. Human Rights Comm’n v. United Transp. Union, Local 655, 167 W.Va. 282, 280 S.E.2d 653 (1981).
. We emphasize this analysis is not necessarily a three-step minuet for ordering the proof at trial. Rather, it provides a framework for analyzing the evidence and facilitating a trial court’s rulings on motions to dismiss and for directed verdicts. As a practical matter, the plaintiff's case-in-chief will often include evidence on the prima facie case, the defendant's explanation for the adverse employment action, and pretext. See note 20, infra.
. In Aikens, the parties on appeal argued whether the district judge, ruling after a bench trial, used the wrong elements for a prima facie case of discriminatory failure to promote. Because the case "was fully tried on the merits,” the Supreme Court thought it "surprising to find the parties and the Court of Appeals still addressing the question whether Aikens made out a prima facie case.... [B]y framing the issue in these terms, they have unnecessarily evaded the ultimate question of discrimination vel non." 460 U.S. at 714, 103 S.Ct. at 1481, 75 L.Ed.2d at 409. (Footnote omitted).
We concur with the United States Supreme Court’s standards and hold that when a trial court has overruled a defendant’s motion to direct a verdict for failure to establish a prima facie case and the defendant presented evidence sufficient for the trier of fact to make an adequate ruling on the merits, the question of whether the plaintiff made a prima facie case is not a necessary consideration for the disposition of the case on appeal.
. There is precedent in retaliation cases for using a formula for the prima facie case similar to Conaway’s. E.g., Jennings v. Tinley Park Community Consol. School Dist. No. 146, 864 F.2d 1368 (7th Cir.1988); E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008 (9th Cir.1983). In that context, courts describe the prima facie showing as evidence that the plaintiff engaged in protected activity, that the plaintiff suffered an adverse employment decision, and that there was a causal link between the protected activity and the adverse decision. As we have said, that link “can be proven by direct or circumstantial evidence, or by inferential evidence, or by a combination of evidence.” Fourco Glass Co. v. State Human Rights Comm'n, 179 W.Va. 291, 293, 367 S.E.2d 760, 762 (1988). (Emphasis added). In any event, these retaliation cases reinforce the point: a plaintiff's burden in making a prima facie case is merely to establish an inference that a discriminatory motive entered into the decision.
. For purposes of simplicity and because racial or ancestral discrimination appears to be the plaintiff's strongest claim, we will limit our analysis to this ground as the basis for the alleged discrimination.
. The ensuing discussion in the text could also be analyzed as proof of pretext. See, e.g., McDonnell Douglas, supra. Whether the evidence is assessed as a separate prima facie case or as pretext does not really matter. Either characterization enlightens what is the only real issue: whether the plaintiff sustained her burden of proving that decedent’s race or ancestry entered into the defendant’s decision to discharge her.
. Indeed, Conaway described the Logan-Mingo formula as "a very useful, workable test for unequal treatment of employees.” 178 W.Va. at 171 n. 16, 358 S.E.2d at 430 n. 16.
. This part of the Logan-Mingo analysis, which requires a plaintiff to prove the prima facie case by a preponderance of the evidence, could be misleading. As described above, whether a plaintiff has established a prima facie case is critical on motions to dismiss or for directed verdicts. A circuit court may not grant a defendant’s motion to dismiss if the plaintiff has alleged the elements of a prima facie case (assuming there are no other defects in the pleadings). Nor may a circuit court grant a defendant’s motion for a directed verdict if.a reasonable jury could find the existence of a prima facie case. Thus, in ruling on those motions, the circuit court would not be assessing the evidence by a preponderance of the evidence standard.
On the other hand, in a bench trial, the circuit could use the Logan-Mingo formula, as written, to analyze the facts. In addition, to assist a jury in its analysis of the facts, a circuit court could instruct the jury by explaining the Conaway three-step analysis (prima facie case — legitimate, nondiscriminatory reason — pretext). In that context, the circuit court's instructions would appropriately require the plaintiff to prove the prima facie elements by a preponderance of the evidence. Alternatively, the circuit court could simply instruct the jury that the plaintiff's burden is to prove by a preponderance of the evidence that the alleged illicit motive contributed to the employer’s adverse action against the plaintiff. If that is proved, the plaintiff must prevail unless the defendant can show by a preponderance that the same decision would have been made in the absence of the discriminatory motive. Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), superseded by 1991 Civil Rights Act. See Adams v. Nolan, 962 F.2d 791 (8th Cir.1992); Stender v. Lucky Stores, Inc., 780 F.Supp. 1302 (N.D.Cal.1992); Hodgdon v. Mt. Mansfield Co., Inc., 160 Vt. 150, 624 A.2d 1122 (1992).
. Having found the plaintiff has established a prima facie case and Sundale has offered rebuttal evidence, we must now examine the record for evidence of inconsistencies or anomalies that could support an inference that Sundale did not act for its stated reasons.
. Indeed, the plaintiff is not required to show that the defendant’s proffered reasons were false or played no role in the termination, but only that they were not the only reasons and the prohibited factor was at least one of the "motivating” reasons. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion) (where employer shows a legitimate motive, the plaintiff need not show the prohibited factor was the sole or principal reason or the "true reason”).
. A plaintiff who makes a prima facie case may defeat a judgment as a matter of law by either, through circumstantial or direct evidence, (1) discrediting the proffered reasons or (2) adducing that discrimination was more likely than not a motivating or determinative cause of the adverse employment action. Fuentes v. Perskie, 32 F.3d 759, 764 (3rd Cir.1994). Although the plaintiff's ultimate burden may be carried by the presentation of additional evidence showing "the employer’s proffered explanation is unworthy of credence," Burdine, 450 U.S. at 256, 101 S.Ct. at 1095, 67 L.Ed.2d at 217, as we stated above, it may often be carried by reliance on the evidence comprising the prima facie case, without more. See St. Mary’s Honor Center, - U.S. at -, 113 S.Ct. at 2749, 125 L.Ed.2d at 419. Thus, unless the employer comes forward with evidence of a dispositive, nondiscriminatory reason as to which there is no real dispute and “which no rational trier of fact could reject, the conflict between the plaintiff’s evidence establishing a prima facie case and the employer’s evidence of a nondiscriminatory reason reflects a question of fact to be resolved by the factfinder after trial.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2nd Cir.1995).
. There is another reason why the this case cannot be decided on a j.n.o.v. motion. Once a prima facie case is established under McDonnell Douglas, the burden of production passes to the defendant. Under St. Mary's Honor Center, supra, a prima facie case creates a presumption of discrimination in favor of a plaintiff and, thus, a plaintiff is entitled to the benefit of Rule 301 of the West Virginia Rules of Evidence (the federal rule is identical).
Under Rule 301, once a presumption enters the case, the case cannot as a matter of law be dismissed. Rather, it is incumbent on a circuit court to submit the case to the trier of fact for final resolution. The legislative history of Rule 301 supports this interpretation. The final Conference Report explaining Rule 301 states: “Under the Senate amendment, a presumption is sufficient to get a party past an adverse party's motion to dismiss made at the end of his case-in-chief.” Eric D. Green & Charles R. Nesson, Federal Rules of Evidence at 42 (1994). Properly interpreted. Rule 301 precludes a circuit court from granting a judgment as a matter of law against the party the presumption favors. See I Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers § 3-2(B) at 174 (3rd ed. 1994).
To this extent, the parties appear to agree. The defendant argues, however, that once it rebutted the presumption, it was incumbent on the plaintiff to offer independent evidence showing intentional discrimination. In effect, the defendant argues that, once the presumption was met by defendant’s evidence of a nondiscriminatory explanation for the adverse treatment of the decedent, the presumption lost its evidentiary force and, for the plaintiff to win, she must point to other record evidence to satisfy her ultimate burden of persuasion. What is overlooked by the defendant is that intentional discrimination could be inferred from the basic facts that gave rise to the McDonnell Douglas presumption. Congress, in its discussion of Rule 301, suggested "the court may ... instruct the jury that it may infer the existence of the presumed fact from proof of the basic facts.” Eric D. Green & Charles R. Nesson, Federal Rules of Evidence at 42. The Supreme Court in Burdine made the same point:
"In saying that the presumption drops from the case, we do not imply that the trier of fact no longer may consider evidence previously introduced by the plaintiff to establish a prima facie case. A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiff’s initial evidence. Nonetheless, this evidence and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant’s explanation is pretextual. Indeed, there may be some cases where the plaintiff's initial evidence, combined with effective cross-examination of the defendant, will suffice to discredit the explanation.” 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10, 67 L.Ed.2d at 216 n. 10.
Finally, the majority’s opinion in St. Mary’s Honor Center, — U.S. at -, 113 S.Ct. at 2749, 125 L.Ed.2d at 418-19, elaborated:
"The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct when it noted that upon such rejection, '[n]o additional proof of discrimination is required [.]’ ” (Emphasis in original; citation and footnote omitted).
We believe the existence of the presumption reviewed in light of the totality of circumstances in this case, even after being met by a legitimate, nondiscriminatory reason, precluded the circuit court from entering a directed verdict and " ’no additional proof of discrimination ... [was] required ’ ” to justify the jury’s verdict for the plaintiff. St. Mary's Honor Center, — U.S. at -, 113 S.Ct. at 2749, 125 L.Ed.2d at 419. (Emphasis in original; citation omitted). See also Sempier v. Johnson & Higgins, 45 F.3d 724, 730-31 (3rd Cir.1995) ("[^ejection of the employer’s nondiscriminatory explanation does not compel a verdict in favor of the employee, but it permits the trier of fact to infer discrimination and find for the plaintiff on the basis of the allegations of discrimination in her prima facie case”).
. The defendant also argues that even assuming the plaintiff established a disparate impact, Sun-dale proved a business necessity defense. While the defendant's proffered reason for the discharge — that the decedent hit a patient — is clearly a nondiscriminatory reason and is job related, we do not think this record warrants a conclusion that a per se discharge rule is necessary. A defendant can sustain the business necessity defense only by bearing the burden of proving through evidence (and not merely judicial intuition) that its challenged employment practice is not only related to its employees’ ability to do the job in question, but also is necessary to achieve an important employer objective.
. In some instances, we are unable fully to evaluate the defendant’s arguments because the record is incomplete. Our prior decisions indicate the importance of a properly designated record. See State v. Honaker, 193 W.Va. 51, 454 S.E.2d 96 (1994); State v. Flint, 171 W.Va. 676, 301 S.E.2d 765 (1983); State v. Nuckols, 152 W.Va. 736, 166 S.E.2d 3 (1968); State ex rel. Scott v. Boles, 150 W.Va. 453, 147 S.E.2d 486 (1966). In fact, in note 4 of State v. Honaker, 193 W.Va. at 56, 454 S.E.2d at 101, we "serve[d] notice on counsel that in future appeals, we will take as nonexisting all facts that do not appear in the designated record and will ignore those issues where the missing record is needed to give factual support to the claim.” Such is the case here.
. Rule 49(a) of the Rules of Civil Procedure states:
"Special verdicts. — The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.”
’. "In most states and in the federal courts, the general rule is that the trial court has complete discretion whether a general or special verdict is to be returned and to answer interrogatories along with a general verdict. This discretion includes the determination of the form of the special verdict, provided it fully and fairly presents to the juiy the issues of the case.” Fleming James, Jr., Geoffrey C. Hazzard, Jr., & John Leubsdorf, Civil Procedure § 7.23 at 379-80 (4th ed. 1992). (Emphasis added).
. Harless v. First Nat’l Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978).
. In a criminal context, the prosecutor is allowed some choice of theory, although the choice may be burdened with consequences, including those incident to the law of double jeopardy. Likewise, in a civil context, parties may be allowed some choice of motives or theories. But the choice in the civil context, although not as severe, also may be burdened with consequences. Because procedural law allows alternative contentions, parties to a civil action involving an array of factual and legal motives or theories should be allowed to defer their choice at least until late stages of the proceedings in the trial court. For example, both plaintiffs and defendants in a civil case may be allowed to maintain alternative contentions at least until the evidence is closed, when the circuit court should require a choice to be made as to the form of verdict to be used in submitting the case to the jury and instructions to the juiy.
In fact, we believe the best way for a defendant such as Sundale to challenge the use of multiple theories or motives to support a single claim is by a motion requiring the plaintiff to elect which particular theory or motive the plaintiff wishes to pursue. When a party does not make a motion to elect, the party also makes a choice that has the associated consequence of almost certainly precluding the assertion of the assignment of error raised here. To be specific, the law (a procedural rule, in this instance) allows alternative theories or motives to be asserted, but, rather than allowing complete freedom of choice, the same rule also grants the trial court authority to make the plaintiff elect which theory or theories are worthy of jury consideration. Thus, when a motion to elect is properly and timely made, the circuit court not only has the authority to, but also has an obligation to require the plaintiff to make a choice as to which theory or theories he or she wants to present to the jury and have reviewed for sufficiency purposes on appeal. See John S. Ewart, Waiver or Election, 29 Harv. L.Rev. 724 (1916).
. A trial court may in some circumstances allow submission to a jury of two or more theories, with appropriate instructions explaining the factual elements the jury must find to return a verdict sustaining each theory. The different theories submitted to a jury may be factually compatible — that is, a verdict sustaining all theories submitted may be permissible. For example, as in the present case, a plaintiff may claim the termination was triggered by a combination of motives. It is not unreasonable to believe that an employee could be terminated because she was an elderly Native American female. However, the evidence and the different theories of intentional discrimination submitted to a jury in a particular case may be so factually incompatible that the jury’s choice is limited to finding one or another of the theories supported, but not all. We find no such incompatibility in this case.
. Because the special verdict form throws off the "cloak of secrecy” surrounding the jury process and enables the parties to see exactly what the jury has done, Edson Sunderland, Verdicts, General and Special, 29 Yale LJ. 253, 259 (1920), the liberal use of Rule 49(a) has been widely praised and condemned. Those who oppose it say the jury system should not be a scientific process:
"Rather, the juiy's greatest value is that it applies the strict and sometimes harsh principles of law with the sense of justice of the 'man on the street.’ Justices Hugo L. Black and William 0. Douglas went even further, calling for the rejection of Federal Rule 49, and describing it as ‘but another means utilized by courts to weaken the constitutional power of juries and to vest judges with more power to decide cases according to their own judgments.' "
Jack H. Friedenthal, Mary Kay Kane & Arthur B. Miller, Civil Procedure § 12.1 at 534 (2nd ed. Hornbook Series 1993). Considering the point expressed above, we believe a much more deferential approach is necessary when the challenge made is different than the one suggested in Orr v. Crowder, supra. Such deference to the trial judge is particularly appropriate in intentional discrimination cases where a combination of motives may be considered as the basis for liability. Indeed, giving the jury the requested special verdict forms could well have caused unnecessary confusion.
. The giving of special verdict forms is quintessentially a judgment call by the circuit court. Because the dynamics of a particular case "may be difficult to gauge from the antiseptic nature of a sterile paper record,” United States v. Passmore, 984 F.2d 933, 937-38 (8th Cir.1993), our review must take into account " ‘the ... [trier’s] superior feel for the case.' ” 984 F.2d at 936. (Citations omitted). Accordingly we will not lightly second-guess the extent of a circuit court’s ruling under Rule 49(a) of the West Virginia Rules of Civil Procedure. | [
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Dent, Judge:
The city of Charleston prays a prohibition against the judge of the Circuit Court of Kanawha County, prohibiting the enforcement of a judgment for costs entered against the petitioner, in favor of one George Beller, in a prosecution for a violation of the ordinances of the petitioner originally instituted before the mayor, and appealed by the accused from his judgment to such circuit court. It is admitted that the petitioner would not be liable for costs at common law, and that they can only be imposed by virtue of statutory enactment. The statutes of this State have clearly provided for the allowance of costs in all civil proceedings to the party substantially prevailing; but in criminal proceedings they only allow costs to be recovered against the accused in case of conviction, and in some cases in his favor on aquittal against a private prosecutor, but never against the public, the State, or its authorized representative. A controversy is thus raised as to whether prosecutions for violations of the ordinances of municipalities are civil or criminal proceedings. The legal definition of crime at common law was a capital offense, and all other offenses were misdemeanors. It is now sought to limit the definition, not alone to capital offenses, but to such offenses as are declared to be criminal by positive legislative enactment, known as “felonies” and “misdemeanors,” excluding therefrom offenses against the ordinances of municipalities,although imposed by legislative authority. The true definition of the word “criminal,” however, as distinguished from the wmrd “civil,” as recognized by the laws of this State, beginning with section 3, Art. VIII, of the Constitution, defining the powers of this Court, and ending- with section 232, chapter 50, of the Code, relating- to the duties of justices under town and village ordinances, is a violation of any law or ordinance of man subjecting the offender to public punishment including fine or imprisonment, and excluding redress for private injury, punitive or compensatory. Because section 232 provides that “the proceeding- in such case shall be by summons in the corporate name of the town or village as plaintiff, and shall conform so far as practicable, to the regulations respecting civil actions before justices,” the criminal character of the offense involved is not converted into a demand of a civil nature, for th'e reason that criminal proceedings, so far as practicable, and not repugnant thereto, always correspond to civil proceedings, unless otherwise provided. Proper process, unless otherwise ordered.by the court, in all misdemeanor cases, is a summons, to be followed by a capias when necessary (section 14, chapter 158, Code), and in the name of the State as plaintiff. Imprisonment for debt, or arrest in civil cases, except for fraud, has become obsolete. So that section 232, in providing for summons in the name of the municipality as plaintiff, to be converted into a capias by indorsement when necessary, complies strictly with criminal procedure; the name of the municipality being merely substituted for the State, to distinguish the prosecutions from each other, and control the disposition of the fines and costs when recovered. Nor is a mayor of any city, town, or village governed by section 231 to 233, inclusive, of chapter 50, Code. Being cx officio a justice, he has the right to conform his proceedings to these sections if he chooses so to do. Ridgway v. Hinton, 25 W. Va., 554; Jelly v. Dils, 27 W. Va., 282. His authority is not derived from these sections. Their only purpose, notwithstanding the mistakes of punctuation, which do notap-pear in Acts 1881, c. 8, nor Acts 1885, c. 36, was to confer on justices, strictly speaking, — not mayors, — the authority to try offenses against town and village ordinances, where the punishment was limited to not exceeding ten dollars fine or ten days' imprisonment. The reason that section 230 was not expressly included in section 233 was because it was self-acting, and in a proper case did not need the aid of another section to make it applicable, its wording-being-as follows: “Every person sentenced to impiisonment under this chapter by the judgment of a justice, or to the payment of a fine of ten dollars or more (and in no case shall a judgment for a fine of less than ten dollars be g-iven by a justice if the defendant, his agent or attorney object thereto), shall be allowed an appeal to the circuit court; * * * and the court shall proceed to try the case as upon an indictment or presentment, and render such judgment without remanding the case as the law and the evidence may require. If the judgment be against the accused, it shall include the costs incurred in the proceedings before the justice, as well as in the said court, including a fee of ten dollars for the prosecutingattorney,andthe jailer’s fees, if any.” By the use of the words “under this chapter,” this section is made applicable to the offenses included in section 231, when the punishment inflicted -is imprisonment or a fine of ten dollars and the fine, if so fixed by ordinance, may always be ten dollars if the accused so require. The authority of a mayor of a city, town, or village is not derived from section 231, but exists independent of such section, by virtue of chapter 47, Code, or the special charter of incorporation granted by the legislature. By section 31, c. 58, Acts 1895, the mayor of the city of Charleston is made a justice of the peace within the city, and authorized to exercise all the powers and duties vested in justices, except jurisdiction in civil cases; thus clothing him with the full criminal jurisdiction of a justice, under sections 219 to 230, inclusive, of chapter 50 Code. But neither these sections nor section 231 invest justices or the mayor with any authority or jurisdiction over violators of the ordinances of the city. The mayor, thus being clothed with the jurisdictional powers of a justice in criminal offenses against the laws of the State, has such jurisdiction increased so as to include violations of the city ordinances by section 22, chapter 58, Acts 1895, which is as follows, to wit: “To carry into effect these enumerated powers, the council shall have power to adopt and enforce all needful orders by laws and ordinances not contrary to the laws and constitution of the state, and to prescribe, impose, and enforce reasonable fines and penalties, includ ing imprisonment,under judgment and order of the mayor or recorder of said city, or the persons lawfully exercising their functions. * * *” This is not an increase of civil, but an increase of criminal jurisdiction; and the mayor, in exercising it properly, conforms his proceedings in all respects, so far as applicable, to the provisions of sections 219 to 230, inclusive, of chapter 50, or, when applicable, he may, at his option, conform to the provisions of section 232. The manner of the procedure, whether by summons or warrant in the name of the town or State, cannot change the nature of the offense from a public crime to a private wrong. Section 230, chapter 50, governs as to costs in all such cases; and there is no provision as to the recovery of costs by the accused in case of acquittal, which conforms to both the common and statute law. Section 163 to 175, inclusive, of such chapter 50, and sections 4 to 11, inclusive, of chapter 138, are applicable alone to civil cases, and therefore this case is clearly exempt from the provisions thereof. The provisions of section 13, chapter 161, Code, that “in no case shall there be a judgment against the state for costs,” is a precautionary enactment on the part of the legislature, declaratory of the common law, made necessary from the fact that the chapter provided that certain criminal charges should be paid out of the State treasury; and, through fear from this concession that inference and implication might give rise to a liability on the part of the State for costs, this negative enactment was adopted to settle the question beyond dispute or quibble.
In its governmental capacity, a municipality is strictly a branch of the State government, within the extent of its limitations, both as to territory and powers granted. And in the discharge of their duties, governmental and discretionary, its officers are public officers, for whose acts the municipality is in no wise liable. Gibson v. City of Huntington, 38 W. Va., 177, (18 S. E. 447); Brown’s Adm’r v. Town of Guyandotte, 34 W. Va., 299, (12 S. E. 707); Thomas v. Town of Grafton, 34 W. Va., 282, (12 S. E. 478); Mendel v. Wheeling, 28 W. Va., 233; Orme v. City of Richmond, 79 Va., 86; City of Richmond v. Long's Adm'rs, 17 Grat., 375; Barnes v. District of Columbia, 91 U. S., 540. The en forcement of fines, penalties, and imprisonment under the ordinances of the municipality is a governmental duty for the protection of society against the lawless, and the preservation of peace and g-ood order, and is purely a State or public function; and, while it is done in the name of the municipality, it is by the sovereignty of the State or the people; and therefore, in whatever case the State is exempt from liability for costs, the municipality is likewise. To hold otherwise is to make the municipality liable for the governmental acts of its officers, and subject it to a fine in all cases in which they fail to sustain prosecutions against alleged offenders of its ordinances, and thus subject it to imminent bankruptcy. While costs in civil cases are not penal, in criminal cases they partake of the nature of a fine. Code, chapter 161, section 11. The present case is a clear and effective illustration of what great harm could be done to the public if it were held liable for costs in the case of the failure of prosecutions for criminal violations of law. It is claimed by the respondent that this prosecution and all others similar are an abuse of the mayor’s authority, and directly contrary to the resolutions of the common council of the city; and so the circuit court seenjingly held, and yet mulcted the city in a fine, at least in effect, for the illegal and unauthorizedacts of the mayor in his discretionary and judicial governmental capacities, — just such acts as the city in no event can be held responsible for; otherwise, it could be made liable for the governmental acts of two opposing factions, both claiming to be the legally constituted authorities thereof, and its increased burdens occasioned by such lawlessness would render municipal government unbearable to the public. Instead of being a protecting shield against crime in its manifold and insidious forms, it becomes a mere instrument for revenue only in the hands of its designing manipulators, without regard to the public service or the interests of the people. The corporate nameof the “City of Charleston”is a mere nonentity, representative of the people residing-in its corporate boundaries; and there is neither law nor justice in inflictiug upon them the costs occasioned by public officers instituting- public prosecutions without sufficient cause, or failing to sustain them by neglect, oversight, or incapacity when properl}' instituted. As a part of the State sovereignty, they are entitled to immunity from such costs.
The palpable error of this Court in allowing costs against a town, as in the case of Ridgway v. Hinton, 25 W. Va., when they should have been awarded the town as not responsible therefor in any event, — for it was neither guilty of the error complained of nor liable for costsin such cases, —does not furnish a binding rule on this Court or any in-inferior tribunal. When the attention of this Court is called to such mistakes, — the result of mere oversight, — it feels irresistibly impelled to correct the same forthwith, that the future baneful effects thereof may be prevented. The judgment of the circuit court being without law to sustain it, prohibition is the proper remedy to prevent its execution. Norfolk & W. R. Co. v. Pinnacle Coal Co., 44 W. Va., 574, (30 S. E. 196); Wilkinson v. Hoke, 39 W. Va., 559, 403, (19 S. E. 520); Manufacturing Co. v. Carroll, 30 W. Va., 532, (4 S. E. 782); West v. Ferguson, 16 Grat., 270. Therefore the motion to quash is over-ruled, and a prohibition is awarded in accordance with the prayer of the petitioner.
Writ Awarded. | [
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Lynch, Judge :
The main question presented upon this certificate relates to the sufficiency of the contract set forth in the declaration, demurrer to which was overruled, to constitute a binding obligation upon the defendant county court of Mercer County. According to the averments of the declaration, plaintiff was employed to act in the capacity of manager of the farm recently purchased by the county court for the care of the poor of the county, for the full term of three years, beginning on the 1st day of October, 1918, and ending on the 1st day of October, 1921, at an annual salary of $900, payable in twelve" equal monthly installments. And plaintiff, relying upon the promise and undertaking of the said defendant, entered upon and performed the duties incident to such employment, and continued to perform such duties until the 1st day of March, 1919. when defendant “refused to suffer or permit the said plaintiff to continue in its said service and employment, and then and there discharged him;” whereby plaintiff has lost and been deprived of all the wages, profits and advantages for himself and his family which he otherwise would have received from a continuance of the service and employment.
The first ground assigned in support of the demurrer is the failure of the declaration to aver that, before the institution of this suit, plaintiff had presented to the county court of Mercer County, or had filed with the clerk of such court for presentation, an itemized account or statement of his claim, and that the court had disallowed such claim in whole or in part, or had neglected or refused to act thereon by the close of the first session after that at which it was so presented, or by the close of the second session after it was filed with the clerk for presentation to them. Such is the procedure prescribed by statute (sections 40 and 41, ch. 39, Code 1918) as a condition precedent to the claimant’s right to sue, where his demand is for a specified sum of money founded on contract, except an order on the county treasury. For prudential reasons the legislature deemed it necessary to require this method for the disposition of claims properly chargeable to county courts. The evident purpose was to prevent the waste of public funds under their control in the payment of costs in unnecessary and useless litigation. This it sought to effect by prescribing the condition found in the statute, and made compliance with that condition a prerequisite to the right to sue to enforce payment of the claim. As to this requirement the statute made but one exception, thereby indicating a legislative intent to preclude all others. Hence, if suit is brought against a county court for the recovery of any claim or demand founded upon contract, the declaration must substantially aver that the same has been so presented and disallowed in whole or in part, or that the court has neglected or refused to act thereon. Unless such averments substantially appear upon the face of the declaration, it will be for that cause demurrable. Chapman v. County Court, 27 W. Va. 496; Yates v. County Court, 47 W. Va. 376. This requirement of the statute must in all cases be complied with, except where the claim falls within its exception, or where the demand is one not founded upon contract. Chancey v. County Court, 51 W. Va. 252.
The second and more important ground urged in support of the demurrer questions the validity of the contract set forth in the declaration as being beyond the authority and power of the county court to make, in view of section 23, ch. 46, Code 1918, which provides: “Every officer or other person appointed or employed by the county court under the provisions of this chapter, shall hold his office or appointment at its pleasure, and receive for his services such compensation as it may deem reasonable.”
Plaintiff was appointed pursuant to the authority conferred by section 4 of that chapter, which empowered the county court to employ a manager to take care of the poor, and hence he falls within the express provisions of section 23. The legislative policy evidenced by the enactment of the latter section and clearly deducible from its terms was that the county court should be in a position to exercise constant supervision and control over its appointees, with a view to effective and efficient service. For that reason the legislature provided that the tenure of office of those appointed or employed under the provisions of chapter 46 should be at the pleasure of the court. It did not desire or contemplate the lying of the hands of the court by a contract entered into possibly before one or more of its members were .elected, but meant that the court should at all times be free and unfettered in its supervisory control over such eleemosynary 'institutions. To adopt plaintiffs contention that the county court, by entering into a contract of employment for a term of three years, has exercised its pleasure in the premises, is to bestow upon such governmental bodies power to extend through contracts the period of their control long beyond the terms for which they were elected, and thus to deprive their regularly elected successors of the important right to exercise some of the functions normally incident' to the office. Such was not the legislative intent as we construe the statute.
Nor does section 1, ch. 39, Code, operate to validate a contract such as this. It merely makes the county court of every county a corporation, and in general terms empowers it to contract and be contracted with. Its specific authority, however, is only sucho as the Constitution and legislature of the state have seen fit to bestow upon it. “The county court is a corporation created by statute, and can only do such things as are authorized by law, and in the mode prescribed.” Goshorn’s Ex’rs v. County Court, 42 W. Va. 735, pt. 5, Syl. It has only such powers as are expressly conferred by the legislature, and such as are necessarily implied in the full and. proper exercise of those powers expressly given. Keatley v. County Court, 70 W. Va. 267, 275. The Constitution and Code of this state (section 24, Art. 8, Const.; section 9, ch. 39, Code), after an enumeration of certain powers not important here, provide: “They (county courts) shall also, under such regulations' as now are or may be prescribed by law, have the superintendence and administration of the internal police and fiscal affairs of their counties * * * Thus, with respect to the internal police affairs, such as the supervision and care of the poor of the county, the powers of the county courts are not inherent, but are limited and restricted by regulations prescribed by law, of which section 23, ch. 46, Code, is an example. Because of that restrictive statute the county court of Mercer County exceeded its authority in making the contract set forth in the declaration, thereby voiding it.
The case of Helmick v. County Court, 65 W. Va. 231, which holds that a county court cannot remove from office a road surveyor appointed by it under section 1392, Code 1906, is clearly distinguishable from the cage now before us. In the former the appointment was made under a statutory provision designating two years as the term of office, thereby constituting a road surveyor a public officer holding for a fixed term. Here the statute authorizing the appointment expressly provides that the tenure of office shall be at the pleasure of the county court— a distinguishing feature recognized by the court in the Helmick case as material. Where a statute conferring the power to appoint fixes no definite term of office, but provides that the tenure shall be at the pleasure of the appointing body, the power to remove such appointee is discretionary (Town of Davis v. Filler, 47 W. Va. 413; see also Hartigan v. Board of Regents, 49 W. Va. 14), and cannot be contracted away so as to bind the appointing body to retain him in such position for a definite,'fixed period. Darrah v. Wheeling Ice & Storage Co., 50 W. Va. 417; Long v. United Savings & Annuity Co., 76 W. Va. 31.
No question is raised respecting the right of plaintiff to receive the salary specified in the contract for the months during which he served as manager of the poor farm, and we -express no opinion as to that.
The court below erred in overruling the demurrer to the declaration, and, therefore, we reverse the ruling, and recertify the case.
Reversed. Demurrer sustained. | [
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0.030924461781978607,
-0.07196135818958282,
0.05... |
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