diff --git a/w_va/10234542.json b/w_va/10234542.json
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index 0000000000000000000000000000000000000000..0c13c12b91470b722cef32b66c46d16b05da1f36
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+"{\"id\": \"10234542\", \"name\": \"KENNETH R. MASTON VS. DIVISION OF HIGHWAYS\", \"name_abbreviation\": \"Maston v. Division of Highways\", \"decision_date\": \"2008-08-04\", \"docket_number\": \"CC-08-0110\", \"first_page\": \"123\", \"last_page\": \"124\", \"citations\": \"27 Ct. Cl. 123\", \"volume\": \"27\", \"reporter\": \"Report of the West Virginia Court of Claims\", \"court\": \"West Virginia Court of Claims\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T00:35:29.278161+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"KENNETH R. MASTON VS. DIVISION OF HIGHWAYS\", \"head_matter\": \"OPINION ISSUED AUGUST 4, 2008\\nKENNETH R. MASTON VS. DIVISION OF HIGHWAYS\\n(CC-08-0110)\\nClaimant appeared pro se.\\nJason C. Workman, Attorney at Law, for respondent.\", \"word_count\": \"486\", \"char_count\": \"2844\", \"text\": \"PER CURIAM:\\nClaimant brought this action for vehicle damage which occurred when his 1989 Honda Civic struck a hole on Pennsylvania Avenue in Charleston, Kanawha County. Pennsylvania Avenue is a road maintained by respondent. The Court is of the opinion to make an award in this claim for the reasons more fully stated below.\\nThe incident giving rise to this claim occurred at approximately 2:00 p.m. on March 17, 2008. Pennsylvania Avenue is a three-lane, paved road. At the time of the incident, claimant was traveling from the west side of Charleston to his home in Mink Shoals. As claimant was driving at less than twenty-five miles per hour, his vehicle struck a hole in the road. Mr. Maston testified that the hole was situated between Washington Street and Women & Children's Hospital and was approximately eight to ten inches long, four or five inches wide, and six inches deep. Claimant testified that he travels this road almost daily and had tried to avoid the holes on this road on prior occasions. Although claimant was aware of the road condition, he took this road because it was the main route to his home rather than driving on the interstate. As a result of this incident, claimant's vehicle sustained damage to its right, front tire, and the vehicle's wheels had to be re-aligned. Thus, claimant incurred damages in the amount of $ 120.17.\\nThe position of the respondent is that it did not have actual or constructive notice of the condition on Pennsylvania Avenue. The respondent did not present any witnesses at the hearing.\\nThe well-established principle of law in West Virginia is that the State is neither an insurer nor a guarantor of the safety of travelers upon its roads. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). In order to hold respondent liable for road defects of this type, a claimant must prove that respondent had actual or constructive notice of the defect and a reasonable time to take corrective action. Chapman v. Dep't. of Highways, 16 Ct. Cl. 103 (1986).\\nIn the instant case, the Court is of the opinion that respondent had, at the least, constructive notice of the hole which claimant's vehicle struck and that the hole presented a hazard to the traveling public. The size of the hole and the time of year in which this incident occurred leads the Court to conclude that respondent had notice of this hazardous condition. Thus, the Court finds respondent negligent and claimant may make a recovery for the damage to his vehicle.\\nIn accordance with the findings of fact and conclusions of law stated herein above, the Court is of the opinion to and does make an award to the claimants in the amount of $ 120.17.\\nAward of $120.17.\"}"
\ No newline at end of file
diff --git a/w_va/11076780.json b/w_va/11076780.json
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index 0000000000000000000000000000000000000000..6b9384f6e0aade63f681011cafeb3e93e0201415
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+"{\"id\": \"11076780\", \"name\": \"BUCKY'S LIMITED AUTO BODY, INC. VS. DIVISION OF HIGHWAYS\", \"name_abbreviation\": \"Bucky's Ltd. Auto Body, Inc. v. Division of Highways\", \"decision_date\": \"1998-01-23\", \"docket_number\": \"CC-96-585\", \"first_page\": \"39\", \"last_page\": \"40\", \"citations\": \"22 Ct. Cl. 39\", \"volume\": \"22\", \"reporter\": \"Report of the West Virginia Court of Claims\", \"court\": \"West Virginia Court of Claims\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T22:48:00.110149+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BUCKY\\u2019S LIMITED AUTO BODY, INC. VS. DIVISION OF HIGHWAYS\", \"head_matter\": \"OPINION ISSUED JANUARY 23, 1998\\nBUCKY\\u2019S LIMITED AUTO BODY, INC. VS. DIVISION OF HIGHWAYS\\n(CC-96-585)\\nClaimant represents self.\\nAndrew F. Tarr, Attorney at Law, for the respondent\", \"word_count\": \"507\", \"char_count\": \"2966\", \"text\": \"PER CURIAM:\\nClaimant Regina Hess brought this action for damage to her 1987 Mercedes 300 after encountering an area of broken pavement on US Route 11 in Berkeley County.\\nMs. Hess and her husband together own Bucky's Limited Auto Body, Inc., which is the titled owner of the vehicle. The Court, on its own motion, amended the claim to reflect the proper parties.\\nThe incident giving rise to this action occurred on October 2, 1996, at approximately 6:30 p.m. Ms. Hess was driving northbound on US Route 11 between Inwood and Barkesville. The evidence adduced at hearing was that as Ms. Hess proceeded around a turn, her vehicle encountered an area of broken pavement along the edge of the road along the berm and shoulder. Both passenger-side wheels and tires were damaged as a result. Ms. Hess submitted into evidence a repair estimate, generated from her own company, in the amount of $1,190.80 together with a towing bill of $90.00. The claimant's insurance deductible was $1,000.00.\\nMs. Hess testified that the vehicle caught the edge of the pavement as she came around the bend in the road. She estimated her speed at between 35 and 40 miles per hour. There was no evidence that she was forced onto the berm because of oncoming traffic. Route 11 in this area in a two-line paved road that is first priority in terms of maintenance. Photographs introduced by the claimant showed that the drop-off from the pavement to the gravel berm was approximately four to five inches deep and proceeded along the road for several yards. The evidence established that the respondent was aware that other vehicles had failed to negotiate the turn and had crossed onto the berm and shoulder. It was the respondent's position that the principal cause of these accidents was excessive speed. The posted speed limit as 40 miles per hour. The shoulder area wa; subsequently paved.\\nIt is the general rule that in order to hold the respondent liable for damage caused by a roac defect, the claimant must prove by a preponderance of the evidence that the respondent had act\\u00faa or constructive notice. Pritt vs. Dept. of Highways, 16 Ct. Cl. 8 (1985), Hamon v. Dept. q Highways, 16 Ct. Cl. 127 (1986). It is also well established that where a claimant proceeds ontc the berm of his own accord, that he takes the berm in the condition he finds it. Mesisenhelder vs Dept. of Highways, (CC-88-149), unpublished opinion issued August 10, 1990. The evideno established that the respondent was aware of the road defect giving rise to this claim. However the Court is also on the opinion that Ms. Hess was 40 percent at fault for failing to maintai. control of her vehicle. Accordingly, based on the principles of comparative negligence, the Coui does hereby make an award in the amount of $600.00\\nAward of $600.00\"}"
\ No newline at end of file
diff --git a/w_va/11077712.json b/w_va/11077712.json
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index 0000000000000000000000000000000000000000..e6f10b5ddd9d9095cb11ae68304d44a329e6be4c
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+"{\"id\": \"11077712\", \"name\": \"WENDI MORRIS VS. DIVISION OF HIGHWAYS\", \"name_abbreviation\": \"Morris v. Division of Highways\", \"decision_date\": \"1998-08-10\", \"docket_number\": \"CC-97-25\", \"first_page\": \"89\", \"last_page\": \"90\", \"citations\": \"22 Ct. Cl. 89\", \"volume\": \"22\", \"reporter\": \"Report of the West Virginia Court of Claims\", \"court\": \"West Virginia Court of Claims\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T22:48:00.110149+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WENDI MORRIS VS. DIVISION OF HIGHWAYS\", \"head_matter\": \"OPINION ISSUED AUGUST 10, 1998\\nWENDI MORRIS VS. DIVISION OF HIGHWAYS\\n(CC-97-25)\\nClaimant represents self.\\nAndrew F. Tarr, Attorney at Law, for the respondent.\", \"word_count\": \"397\", \"char_count\": \"2330\", \"text\": \"PER CURIAM:\\nThe claimant brought this action for damage to her vehicle after she encountered an area of broken pavement on Interstate 79 in Marion County.\\nThe incident giving rise to this action occurred on December 13; 1996. The claimant was driving her 1995 Mazda Miata southbound on 1-79 just north of the Pleasant Valley Road exit near Fairmont at approximately 10:00 p.m. The weather was cold and rainy. The evidence adduced at hearing was that the claimant was driving approximately 65 miles per hour when her vehicle struck a large hole in the traveled portion of the right-hand lane. The claimant's vehicle sustained a flat tire and a cracked rim. The claimant submitted repair bills in the amount of $555.09. The claimant's insurance deductible was $250.00.\\nThe hole was described as approximately two feet in breadth and width. Another motorist traveling in front of the claimant also struck the hole, but his vehicle sustained no damage. The respondent's evidence established that there was a hole near the 136 mile marker, which was repaired with cold mix on December 14, 1996.\\nIt is well established that the state is neither an insurer nor a guarantor of the safety of motorists on its roads. Adkins vs. Sims, 46 S.E.2d 81 (1947). It is the general rule that in order to establish liability for road defects of this type, the claimant must prove that the respondent had actual or constructive notice of the defect. Hamon vs. Dept. of Highways, 16 Ct. Cl. 127 (1986). The Court is of the opinion that the size of the hole in question is indicative of its presence for a substantial period of time and that the respondent had reason to know of this road hazard. Accordingly, the Court is of the opinion that the State has a moral obligation to compensate the claimant for her loss. It is furthermore the general rule of this Court that moral obligations of the State do not include, or encompass, those losses otherwise covered by the claimant's insurance coverage.\\nTherefore, in view of the foregoing, the Court is of the opinion to and does hereby make an award in the amount of $250.00, the amount of the claimant's insurance deductible.\\nAward if $250.00.\"}"
\ No newline at end of file
diff --git a/w_va/11114951.json b/w_va/11114951.json
new file mode 100644
index 0000000000000000000000000000000000000000..0026c7c20941a5d5a9b6ceea67ab1072c5bfa26e
--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"11114951\", \"name\": \"Robert D. DIEHL, Plaintiff Below, Appellee v. Georgianna B. LILLER, Defendant Below, Appellant\", \"name_abbreviation\": \"Diehl v. Liller\", \"decision_date\": \"2000-11-09\", \"docket_number\": \"No. 27624\", \"first_page\": \"518\", \"last_page\": \"520\", \"citations\": \"208 W. Va. 518\", \"volume\": \"208\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T22:38:27.604033+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert D. DIEHL, Plaintiff Below, Appellee v. Georgianna B. LILLER, Defendant Below, Appellant.\", \"head_matter\": \"541 S.E.2d 608\\nRobert D. DIEHL, Plaintiff Below, Appellee v. Georgianna B. LILLER, Defendant Below, Appellant.\\nNo. 27624.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted Sept. 20, 2000.\\nDecided Nov. 9, 2000.\\nV. Alan Riley, Keyser, for Appellant.\", \"word_count\": \"1499\", \"char_count\": \"8726\", \"text\": \"PER CURIAM:\\nThis case is before this Court upon appeal of a final order of the Circuit Court of Mineral County entered on June 28, 1999. In that order, the circuit court denied a motion to set aside a default judgment entered against Georgianna B. Liller, the appellant and defendant below in a civil action filed by Robert Diehl, the appellee and plaintiff below. On appeal, Ms. Liller contends that the default judgment should be set aside pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure. We disagree, and for the rea sons set forth below, affirm the final order of the circuit court.\\nI.\\nOn May 14, 1998, Mr. Diehl filed a complaint in the Circuit Court of Mineral County against Ms. Liller alleging that he had given her $9,500.00 for storage and safekeeping and that she now refused to return his money. Ms. Liller was served a copy of the complaint on July 23, 1998. Within a few days of receiving the compliant, Ms. Liller became ill and was hospitalized with severe pancytopenia, anemia, and bronchitis. Ms. Liller remained hospitalized for two weeks and was released on August 14,1998.\\nAccording to Ms. Liller, due to her illness, she had no recollection of having been served with the complaint. Thus, she did not understand why she was later served with a Suggestion resulting from a default judgment entered against her on August 28, 1998. Finally, on September 13, 1998, Ms. Liller wrote letters to the circuit court, the sheriff of Mineral County, and the attorneys involved in this matter. Ms. Liller's letter to the circuit court was treated as a motion to set aside the default judgment, and a hearing on the motion was scheduled for December 15, 1998. Shortly before the hearing, Ms. Liller obtained counsel to represent her.\\nDuring the hearing on the motion to set aside the default judgment, Ms. Liller presented her medical records showing that she was ill and was hospitalized shortly after she was served with the complaint. The circuit court took the motion under advisement and ordered Ms. Liller to submit additional affidavits.\\nAccording to counsel for Ms. Liller, two affidavits were supplied to counsel for Mr. Diehl on January 28, 1999, three weeks after the date set by the circuit court. However, Mr. Diehl's counsel indicated that he did not receive the affidavits until April 1999. In any event, the circuit court denied the motion to set aside the default judgment on June 9, 1999, without any further hearing. This appeal followed.\\nII.\\nThe sole issue in this ease is whether the circuit court erred by denying Ms. Liller's motion to set aside the default judgment entered against her on August 28, 1998. Pursuant to Rule 55(a) of the West Virginia Rules of Civil Procedure, a default judgment may be entered \\\"when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend[.]\\\" However, Rule 55(c) states that the court may set aside the default judgment \\\"in accordance with Rule 60(b).\\\" Rule 60(b) provides:\\nOn motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, excusable neglect, or unavoidable cause; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.\\nIn Syllabus Point 3 of Intercity Realty Co. v. Gibson, 154 W.Va. 369, 175 S.E.2d 452 (1970), this Court held that: \\\"A motion to vacate a default judgment is addressed to the sound discretion of the court and the court's ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion.\\\" This Court further held in Syllabus Point 3 of Parsons v. Consolidated Gas Supply Corp., 163 W.Va. 464, 256 S.E.2d 758 (1979):\\nIn determining whether a default judgment should be entered in the face of a Rule 6(b) motion or vacated upon a Rule 60(b) motion, the trial court should consider: (1) The degree of prejudice suffered by the plaintiff from the delay in answering; (2) the presence of material issues of fact and meritorious defenses; (3) the significance of the interests at stake; and (4) the degree of intransigence on the part of the defaulting party.\\nIn this case, Ms. Liller contends that her medical records show that she became ill and was hospitalized shortly after she was served with the complaint thereby establishing \\\"excusable neglect\\\" as set forth in Rule 60(b). However, the circuit court's final order states that the \\\"the Defendant has not shown why she failed to act upon the Complaint herein, nor has she shown why she failed to act upon said Complaint in a timely manner!.]\\\"\\nAs discussed above, the record indicates that Ms. Liller's first response in this action was a letter written to the circuit court on September 13, 1998. The letter was treated as a motion to set aside the default judgment which had been entered on August 28, 1998. A hearing on the motion was scheduled for December 15,1998.\\nMs. Liller appeared at the hearing on December 15, 1998, with counsel. During the hearing, Ms. Liller, by counsel, introduced her medical records showing that she became ill and was hospitalized a week after she was served with the complaint. Ms. Liller stated that she was unable to find counsel and file an answer to the complaint before she was hospitalized. After she was hospitalized and for a brief period of time thereafter, she was not able to attend to her affairs. Consequently, the time period for responding to the complaint expired. When Ms. Liller finally realized that she needed to take action, she wrote the letter to the circuit court indicating that she did not agree with Mr. Diehl's allegations.\\nAfter considering Ms. Liller's argument and the response from Mr. Diehl's counsel requesting additional information, the circuit court stated:\\nNo, I am not going to set the judgment aside today, but I'm going to give you until, being the time of the year and the month it is, until the end of the first week in January.... January the Eighth to send to me and to Mr. Rogers [Mr. Diehl's counsel] affidavits, an affidavit of the defendant stating the specificity, the reasons that Mr. Rogers is asking for as to why she failed to act in a timely manner, she, I want to know why she failed to act and why she failed to act timely, and you can attach anything you want and Mr. Rogers can have a week to answer that after you get it, and after I've received both of those and read them, I'll decide whether I'm going to set it aside or not[.]\\nThe parties next appeared before the circuit court on June 9, 1999, for a status conference. At that time, Ms. Liller stated that she had filed the affidavits requested by the court on January 28, 1999, three weeks after the date specified by the court in the prior hearing. However, Mr. Diehl's counsel indicated that he had not received the affidavits until April. Thereafter, the circuit court denied Ms. Liller's motion to set aside the default judgment.\\nGiven these circumstances, we do not find that the circuit court abused its discretion by denying the motion to set aside the default judgment. Not only did Ms. Liller fail to file a timely answer to the complaint in this case, she also failed to timely respond to the circuit court's request for additional information regarding why she failed to timely respond in the first instance. In Hinerman v. Levin, 172 W.Va. 777, 782, 310 S.E.2d 843, 848 (1983), this Court stated that \\\"although this court is quite willing to review default judgments and to overturn them in cases where good cause is shown, a demonstration of such good cause is a necessary predicate to our overruling a lower court's exercise of discretion.\\\" Ms. Liller simply did not demonstrate \\\"good cause\\\" within the parameters set by the circuit court. Accordingly, the final order of the Circuit Court of Mineral County entered on June 28,1999, is affirmed.\\nAffirmed.\"}"
\ No newline at end of file
diff --git a/w_va/11506456.json b/w_va/11506456.json
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index 0000000000000000000000000000000000000000..55ccec45cfd4dbd048d6fe9923153ac4096713fb
--- /dev/null
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+"{\"id\": \"11506456\", \"name\": \"STATE of West Virginia ex rel. Carolyn SHREWSBERRY and Herndon Processing Company, a West Virginia corporation, Petitioners, v. Honorable John S. HRKO, Judge of the Circuit Court of Wyoming County, West Virginia, and Bobbie Shrewsberry, Respondents\", \"name_abbreviation\": \"State ex rel. Shrewsberry v. Hrko\", \"decision_date\": \"1999-07-14\", \"docket_number\": \"No. 25806\", \"first_page\": \"646\", \"last_page\": \"654\", \"citations\": \"206 W. Va. 646\", \"volume\": \"206\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T20:30:21.685895+00:00\", \"provenance\": \"CAP\", \"judges\": \"Justice McGRAW, deeming himself disqualified, did not participate in the decision of the Court.\", \"parties\": \"STATE of West Virginia ex rel. Carolyn SHREWSBERRY and Herndon Processing Company, a West Virginia corporation, Petitioners, v. Honorable John S. HRKO, Judge of the Circuit Court of Wyoming County, West Virginia, and Bobbie Shrewsberry, Respondents.\", \"head_matter\": \"527 S.E.2d 508\\nSTATE of West Virginia ex rel. Carolyn SHREWSBERRY and Herndon Processing Company, a West Virginia corporation, Petitioners, v. Honorable John S. HRKO, Judge of the Circuit Court of Wyoming County, West Virginia, and Bobbie Shrewsberry, Respondents.\\nNo. 25806.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted March 9, 1999.\\nDecided July 14, 1999.\\nConcurring Opinion of Chief Justice Starcher Oct. 15, 1999.\\nH.F. Salsbery, Esq., William S. Druekman, Madonna C. Estep, Esq., Salsbery & Druck-man, Charleston, West Virginia, Attorneys for Carolyn Shrewsberry.\\nWarren R. McGraw, II, Esq., Prosperity, West Virginia, Attorney for Respondent Bobbie Shrewsberry.\\nAncil Ramey, Esq., H. Toney Stroud, Esq., Steptoe & Johnson, Charleston, West Virginia, Attorneys for Herndon Processing Company.\", \"word_count\": \"4334\", \"char_count\": \"27261\", \"text\": \"PER CURIAM:\\nIn this petition for a writ of prohibition we are asked to address a situation where two individuals have been appointed, in two separate counties, as administrators of the estate of a decedent. The petitioner, the ex-wife of the decedent, was appointed by the Raleigh County Commission, while the respondent, the decedent's mother, was appointed by the Wyoming County Commission.\\nThe appointment decision of the Raleigh County Commission was appealed to the Circuit Court of Raleigh County. The Circuit Court of Raleigh County subsequently issued a final order affirming the petitioner's qualifications to act as administrator of the decedent's estate, and the order was not appealed. The petitioner then sought to void the respondent's appointment in the Circuit Court of Wyoming County. The Circuit Court of Wyoming County declined to void the appointment, and declined to give preclu-sive effect to the order of the Circuit Court of Raleigh County. The petitioner then sought relief from this Court to prohibit the Circuit Court of Wyoming County from continuing to act in excess of its jurisdiction.\\nAfter consideration of the arguments of the parties, we find that the order of the Circuit Court of Raleigh County constitutes a final adjudication on the merits of the peti tioner's qualifications to act as administratrix of the decedent's estate. Any attempt by the respondent to collaterally challenge those qualifications in Wyoming County is barred by principles of res judicata.\\nWe therefore grant the requested writ of prohibition.\\nI.\\nThe petitioner, Carolyn Shrewsberry, and Eddie Dean Shrewsberry were married in 1980, and were divorced on July 17, 1996. The petitioner is the biological mother and custodian of eight of Mr. Shrewsberry's nine children. She resides in Raleigh County, West Virginia. A ninth child of Mr. Shrews-berry allegedly lives in McDowell County, West Virginia.\\nOn February 6, 1997, Mr. Shrewsberry sustained fatal injuries in an accident at his place of employment in Wyoming County and was taken to a Raleigh County hospital where he was pronounced dead on arrival. Mr. Shrewsberry's death certificate and an obituary in a local newspaper indicated his place of residence was in Raleigh County.\\nThe petitioner, on February 13, 1997, appeared before the Raleigh County Commission. In the Administrator's Bond and Fiduciary Record filed with the Raleigh County Commission, the petitioner represented that she was the wife, next of kin, and sole heir to Mr. Shrewsberry. On that date the Raleigh County Commission appointed the petitioner as the administratrix of Mr. Shrewsberry's estate.\\nThree weeks later, on March 7, 1997, Mr. Shrewsberry's mother, respondent Bobbie Shrewsberry, appeared before the Wyoming County Commission and sought to be appointed as administratrix of Mr. Shrewsber-ry's estate. The respondent is a resident of Wyoming County. On the paperwork filed with the Wyoming County Commission, the respondent listed Mr. Shrewsberry's nine children as the heirs and distributees of his estate. The respondent was also appointed as the administratrix of Mr. Shrewsberry's estate.\\nThe respondent then challenged the petitioner's appointment as administratrix by filing objections with the Raleigh County Commission. The objections were referred to a fiduciary commissioner, who on October 14, 1997 issued a report finding that the petitioner was not Mr. Shrewsberry's wife at the time of his death, and that she was not his sole heir. The fiduciary commissioner concluded that the petitioner had sworn falsely to wrongfully obtain her appointment as the administratrix of Mr. Shrewsberry's estate, and recommended that the appointment be voided.\\nIn response to the fiduciary commissioner's findings, the petitioner sought permission to amend her Administrator's Bond and Fiduciary Record. The petitioner contended that she had not sworn falsely, but rather that she had made mistakes in completing the paperwork presented to her by a clerk for the Raleigh County Commission. In an affidavit filed with the Raleigh County Commission, the petitioner indicated that she had no memory of being asked any questions about her relationship to Mr. Shrewsberry, but that she provided the clerk with a copy of her divorce papers. She indicated that her habit was to refer to herself as the \\\"ex-wife\\\" of Mr. Shrewsberry. The petitioner also stated that two of her children were with her at the time she completed the paperwork, and while the clerk commented on \\\"how cute\\\" her children were, she was never asked any questions about Mr. Shrewsberry's heirs. In sum, the petitioner argued that she did not purposely misrepresent herself as the wife and sole heir to Mr. Shrewsberry.\\nOn November 4, 1997, the Raleigh County Commission granted the petitioner leave to amend, finding that \\\"the distributees [of Mr. Shrewsberry's estate] are minor children residing with their natural mother\\\" and that she was \\\"appropriate to serve as Administra-trix.\\\"\\nThe respondent appealed the Raleigh County Commission's findings to the Circuit Court of Raleigh County. By order dated June 9, 1998, the circuit court held that the Raleigh County Commission had not abused its discretion in finding that the petitioner was qualified to be the administratrix of Mr. Shrewsberry's estate. The circuit court further held that the respondent did not have standing to challenge the petitioner's appointment, because she was not herself a distributee of Mr. Shrewsberry's estate. The respondent did not appeal the circuit court's order.\\nConcurrent with the respondent's appeal in the Circuit Court of Raleigh County, the petitioner filed objections with the Wyoming County Commission seeking to void the respondent's appointment for lack of jurisdiction. The petitioner contended that Mr. Shrewsberry was not a resident of Wyoming County, and did not own any real estate in Wyoming County, at the time of his death. A copy of the order from the Circuit Court of Raleigh County, affirming the petitioner's appointment by the Raleigh County Commission, was later filed with the Wyoming County Commission.\\nBy a letter dated June 23, 1998, the Wyoming County Commission allowed the respondent to continue as the administratrix of Mr. Shrewsberry's estate. The petitioner then appealed the decision to the Circuit Court of Wyoming County.\\nOn November 5, 1998, 'the respondent judge, the Honorable John S. Hrko, issued an order affirming the decision of the Wyoming County Commission. Judge Hrko found that the Wyoming County Commission had not abused its discretion in appointing the respondent as the administratrix of Mr. Shrewsberry's estate.\\nThe petitioner, on January 7, 1999, filed the instant petition for writ of prohibition with this Court. The petitioner asks that we prohibit Judge Hrko from allowing the Wyoming County Commission to act in an extra-jurisdictional fashion.\\nII.\\nThe petitioner in this case seeks a writ of prohibition against the Circuit Court of Wyoming County, and indirectly, against the Wyoming County Commission. \\\"The rationale behind a writ of prohibition is that by issuing certain orders the trial court has exceeded its jurisdiction, thus making prohibition appropriate.\\\" State ex rel. Allen v. Bedell, 193 W.Va. 32, 36, 454 S.E.2d 77, 81 (1994) (Cleckley, J., concurring). As such, \\\"writs of prohibition . provide a drastic remedy to be invoked only in extraordinary situations.\\\" 193 W.Va. at 37, 454 S.E.2d at 82. More specifically,\\n. this Court will use prohibition . to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.\\nSyllabus Point 1, in part, Hinkle v. Black, 164 W.Va.. 112, 262 S.E.2d 744 (1979).\\nThe jurisdiction of- a county commission over an intestate estate is established by W.Va.Code, 44-1-4 [1923] which states:\\nWhen a person dies intestate the jurisdiction to hear and determine the right of administration of his estate shall be in the county court [now county commission], or clerk thereof during the recess of the regular sessions of such court, which would have jurisdiction as to the probate of his will, if there were one. Administration shall be granted to the distributees who apply therefor, preferring first the husband or 'wife, and then such of the others entitled to distribution as such court or clerk shall see fit. If no distributee apply for administration within thirty days from the death of the intestate, such court or clerk may grant administration to one or more of his creditors, or to any other person.\\nW.Va.Code, 41-5-4 [1923] establishes the places whejje a will may be probated, and states in part:\\nThe county court [now county commission] shall have jurisdiction of the probate of wills according to the following rules:\\n(a) In the county wherein the testator, at the time of his death, had a mansion house or. known place of residence!.]\\nIn this case the Raleigh County Commission found, based upon the evidence then in the record, that the petitioner was qualified to act as the administratrix of Mr. Shrewsberry's estate. The respondent then appealed that determination to the Circuit Court of Raleigh County. The circuit court found that the decision of whether the petitioner \\\"intentionally misrepresented critical information\\\" was a matter committed to the discretion of the Raleigh County Commission. The circuit court found that no abuse of discretion had been shown and affirmed the Raleigh County Commission's determination.\\nThe Circuit Court of Raleigh County issued its final order on June 9, 1998. The respondent did not appeal that order, and the petitioner asserts that the principles of res judicata prevent the respondent from collaterally challenging that order in the Circuit Court of Wyoming County. We agree.\\n\\\"Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action.\\\" Porter v. McPherson, 198 W.Va. 158, 166, 479 S.E.2d 668, 676 (1996) (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552, 559 n. 5 (1979)) (footnote omitted). The doctrine of res judicata is applied to avoid \\\"the expense and vexation attending relit-\\nigation of causes of action which have been fully and fairly decided.\\\" Sattler v. Bailey, 184 W.Va. 212, 217, 400 S.E.2d 220, 225 (1990). In other words, \\\"a man should not be twice vexed for the same cause.\\\" Hannah v. Beasley, 132 W.Va. 814, 821, 53 S.E.2d 729, 732 (1949) (citations omitted).\\nWe have made clear that, even if a circuit court reaches an incorrect result in on an issue, the doctrine of res judicata bars relitigation of the issue. We stated, in Syllabus Point 1 of Sayre's Adm'r v. Harpold, 33 W.Va. 553,11 S.E. 16 (1890), that:\\nAn adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in a former suit, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits. An erroneous ruling of the court will not prevent the matter from being res judicata.\\n(Emphasis added.)\\nWe apply a three-part test in determining whether an action is barred by the doctrine of res judicata:\\nBefore the prosecution of a lawsuit may be barred on the basis of res judicata, three elements must be satisfied. First, there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings. Second, the two actions must involve either the same parties or persons in privity with those same parties. Third, the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved, had it been presented, in the prior action.\\nSyllabus Point 4, Blake v. Charleston Area Medical Center, 201 W.Va. 469, 498 S.E.2d 41 (1997).\\nApplying these three factors to the instant case, we find that the respondent's attempts to collaterally attack the petitioner's qualifications in the Circuit Court of Wyoming County are barred by principles of res judi-cata. First, there has been a final adjudication in the Circuit Court of Raleigh County on the merits of whether the Raleigh County Commission abused its discretion in appointing the petitioner as administratrix of Mr. Shrewsberry's estate. Second, the two actions involve the same parties. Third, the cause of action identified for resolution in the Wyoming County proceedings is substantially identical, namely, whether the Raleigh County Commission could find the petitioner qualified to act as the administratrix of the Estate of Mr. Shrewsberry.\\nThe respondent's attempts to collaterally attack the decision of the Circuit Court of Raleigh County are precluded by the doctrine of res judicata. We therefore find that the Circuit Court of Wyoming County, by failing to acknowledge the preclusive effect of the final decision of the Circuit Court of Raleigh County, was acting in excess of its jurisdiction. A writ of prohibition is therefore warranted.\\nIII.\\nFor the reasons set for forth above, we grant the requested writ of prohibition.\\nWrit Granted.\\nJustice McGRAW, deeming himself disqualified, did not participate in the decision of the Court.\\nJudge FRED RISOVICH, II, sitting by special assignment, dissents.\\n. While the record in the court below is unclear, it seems that no representative has made an appearance for this ninth, allegedly illegitimate, child. The petitioner, however, steadfastly claims that Mr. Shrewsberry fathered only eight children.\\n. Mr. Shrewsberry's death certificate lists \\\"multiple crushing injuries\\\" as a consequence of being \\\"struck by boom [of a crane] at worksite.\\\" The \\\"approximate interval between onset and death\\\" was listed as \\\"seconds.\\\"\\nIt appears that, as a result of this workplace accident, both the petitioner and the respondent have filed \\\"deliberate intent\\\" actions against Mr. Shrewsberiy's employer. See W.Va.Code, 23-4-2 [1994],\\n. The respondent disputes these factual contentions. The respondent takes the position that Mr. Shrewsberry lived in Wyoming County in a home next-door to the respondent and her husband. Mr. Shrewsberry allegedly received his mail at this residence, and considered the Wyoming County house to be \\\"home.\\\" Furthermore, Mr. Shrewsberry's on-the-job accident \\u2014 and therefore his death \\u2014 occurred in Wyoming County-\\n. The issue before the Circuit Court of Raleigh County was whether the petitioner, in light of her alleged misrepresentations to the Raleigh County Commission, was qualified to act as the adminis-tratrix of Mr. Shrewsberry's estate. The issues of whether the Raleigh County Commission had subject-matter jurisdiction over Mr. Shrewsber-ry's estate based upon his residency, whether the petitioner might be a creditor of Mr. Shrewsber-ry's estate as a result of entitlement to alimony, and the interests Mr. Shrewsberry's allegedly ninth illegitimate child were not addressed by either the Raleigh County Commission or the Circuit Court of Raleigh County.\"}"
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diff --git a/w_va/11626681.json b/w_va/11626681.json
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@@ -0,0 +1 @@
+"{\"id\": \"11626681\", \"name\": \"STATE of West Virginia ex rel. UNITED STATES FIDELITY & GUARANTY COMPANY, Petitioner, v. Honorable Robert B. STONE, Judge of the Circuit Court of Monongalia County; Honorable A. Andrew MacQueen, III, Special Judge of the Circuit Court of Monongalia County; and Monongalia Mass II Plaintiffs Represented by Theodore Goldberg, Esq., and Scott S. Segal, Esq., Respondents\", \"name_abbreviation\": \"State ex rel. United States Fidelity & Guaranty Co. v. Stone\", \"decision_date\": \"1998-12-07\", \"docket_number\": \"No. 25147\", \"first_page\": \"557\", \"last_page\": \"560\", \"citations\": \"203 W. Va. 557\", \"volume\": \"203\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T17:13:11.512655+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice DAVIS and Justice STARCHER, deeming themselves disqualified, did not participate in the decision in this case.\", \"parties\": \"STATE of West Virginia ex rel. UNITED STATES FIDELITY & GUARANTY COMPANY, Petitioner, v. Honorable Robert B. STONE, Judge of the Circuit Court of Monongalia County; Honorable A. Andrew MacQueen, III, Special Judge of the Circuit Court of Monongalia County; and Monongalia Mass II Plaintiffs Represented by Theodore Goldberg, Esq., and Scott S. Segal, Esq., Respondents.\", \"head_matter\": \"509 S.E.2d 598\\nSTATE of West Virginia ex rel. UNITED STATES FIDELITY & GUARANTY COMPANY, Petitioner, v. Honorable Robert B. STONE, Judge of the Circuit Court of Monongalia County; Honorable A. Andrew MacQueen, III, Special Judge of the Circuit Court of Monongalia County; and Monongalia Mass II Plaintiffs Represented by Theodore Goldberg, Esq., and Scott S. Segal, Esq., Respondents.\\nNo. 25147.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted Sept. 9, 1998.\\nDecided Dec. 7, 1998.\\nBoyd L. Warner, Esq., Waters, Warner & Harris, Clarksburg, West Virginia, Attorney for the Petitioner.\\nTheodore Goldberg, Esq., Goldberg, Per-sky, Jennings & White, Pittsburgh, Pennsylvania, Scott S. Segal, Esq., The Segal Law Firm, Charleston, West Virginia, Attorneys for Monongalia Mass II Plaintiffs.\", \"word_count\": \"1385\", \"char_count\": \"8529\", \"text\": \"PER CURIAM:\\nThis case is before this Court upon a petition for writ of prohibition filed by the petitioner, United States Fidelity & Guaranty Company [hereinafter \\\"USF & G\\\"], against the respondents, the Honorable Robert B. Stone, Judge of the Circuit Court of Monon-galia County, and the Honorable Andrew A. MacQueen, III, Special Judge of the Circuit Court of Monongalia County. USF & G seeks to prohibit the respondents from enforcing a February 17, 1998 order permitting the plaintiffs in the underlying asbestos action known as \\\"Monongalia Mass II\\\" to perfect service of process upon defendant Earl B. Beach Company [hereinafter \\\"Beach\\\"], by serving its insurer, USF & G. We issued a rule to show cause and now grant the writ and remand this case for reconsideration by the circuit court.\\nI.\\nThe underlying case arose from personal injuries allegedly sustained by the respective plaintiffs through exposure to products containing asbestos which were allegedly manufactured, produced, sold, installed, or supplied by Beach and other defendants. Beach was incorporated in and maintained its principal place of business in the state of Pennsylvania until it was dissolved on July 2, 1987.\\nOn August 20,, 1997, the plaintiffs in the underlying case filed a petition to enter judgment against Beach and its insurers. However, Beach, as a defunct corporation, was never served in the asbestos action,\\\" nor had service been made on any of Beach's former officers and directors. A hearing was held on September 5, 1997 to consider the plaintiffs' petition. By order entered September 11, 1997, the circuit court granted the plaintiffs leave to serve the complaints upon Beach by making service upon its alleged insurance carrier, USF & G.\\nThereafter, the plaintiffs attempted to perfect service upon Beach by serving USF & G via certified mail. On October 10,1997, USF & G filed a Motion to Quash Service of Process upon Beach. A hearing was held regarding the motion on November 7, 1997. Subsequently, by order entered February 17, 1998, the circuit court denied the motion finding service of process upon USF & G, as an agent of Beach, was proper. USF & G then filed this petition for writ of prohibition.\\nII.\\nInitially, we note that \\\"[prohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for [a petition for appeal] or certiorari.\\\" Syllabus Point 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953). See also W.Va.Code \\u00a7 53-1-1 (1923).\\nIn determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.\\nSyllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). With these general rules in mind, we now consider whether a writ of prohibition should be granted.\\nThe issue presented is whether service of process upon a defunct corporation can be effectuated by serving its liability insurance carrier. Recently, in Robinson v. Cabell Huntington Hosp. Inc., 201 W.Va. 455, 498 S.E.2d 27 (1997), we addressed the propriety of serving a defendant through its insurer. Robinson was a medical malpractice action brought by a minor who allegedly sustained brain damage at birth. The action was filed against the estate of Dr. Carmelo L. Terlizzi. Dr. Terlizzi had delivered the plaintiff in 1977 while he was practicing medicine in West Virginia. He later moved to Florida where he died before the action was filed. One of the issues raised in Robinson was whether the plaintiff could perfect service on Dr. Terlizzi's estate by serving his insurance carrier in West Virginia.\\nWe determined in Robinson that in order for the liability insurer to receive service on behalf of the defendant doctor's estate, the liability insurer must have been authorized to do so pursuant to a statute or by agreement. We reached this conclusion based on provisions of Rule 4 of the West Virginia Rules of Civil Procedure pertaining to service of process on an individual when the individual cannot be personally served. Ultimately, we determined that there was no evidence that Dr. Terlizzi's insurer had been authorized to receive service of process on his behalf. Therefore, the appellants were not permitted to serve the liability insurer in lieu of the estate.\\nClearly, Robinson applies to the case sub judice. Unfortunately, Robinson was decided after the circuit court denied USF & G's motion to quash. Therefore, we grant the writ of prohibition, but remand this case to the circuit court for further consideration in light of our decision in Robinson,\\nWrit granted; remanded with directions.\\nChief Justice DAVIS and Justice STARCHER, deeming themselves disqualified, did not participate in the decision in this case.\\nJudge BERGER and Judge KIRKPATRICK, sitting by special assignment.\\nJustice McGRAW did not participate in the decision of this case.\\n. If a corporation has been dissolved, \\\"process may be served upon the same person who might have been served before dissolution.\\\" Lynchburg Colliery Co. v. Gauley & Eastern Railway Co., 92 W.Va. 144, 149, 114 S.E. 462, 464 (1922) (citation omitted).\\n. Rule 4(d)(1) provides that service of process shall be made on an individual:\\n(A) by delivering a copy of the summons and of the complaint to him personally; or by delivering a copy of the summons and of the complaint at his dwelling house or usual place of abode to a member of his family above the age of sixteen (16) years and giving to such person information of the purport of the summons and complaint; or by delivering a copy of the summons and of the complaint to an agent or attorney in fact authorized by appointment or statute to receive or accept service of process in his behalf [.] (emphasis added).\\n. Like Rule 4(d)(1)(A), Rule 4(d)(8) provides:\\nForeign corporations and business trusts not qualified to do business. \\u2014 Upon a foreign corporation, including a business trust, which has not qualified to do business in the State, (A) by delivering or mailing in accordance with paragraph (1) above a copy of the summons and of the complaint to any officer, director, trustee, or agent of such corporation; or (B) by delivering or mailing in accordance With paragraph (1) above copies thereof to any agent or attorney in fact authorized by appointment or by statute to receive or accept service in its behalf (emphasis added).\\n.We note that plaintiffs would not be prevented from attempting some other method of service of process such as service upon the Secretary of State, a designated agent, or any officer, director, trustee or agent of the corporation. See note 1, supra.\"}"
\ No newline at end of file
diff --git a/w_va/11646318.json b/w_va/11646318.json
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index 0000000000000000000000000000000000000000..ebf034b63098e4a20920e4921571d2aefc67ab1d
--- /dev/null
+++ b/w_va/11646318.json
@@ -0,0 +1 @@
+"{\"id\": \"11646318\", \"name\": \"W.J. CLARK SEPTIC TANK SERVICE, INC. VS. DEPARTMENT OF HEALTH\", \"name_abbreviation\": \"W.J. Clark Septic Tank Service, Inc. v. Department of Health\", \"decision_date\": \"1989-12-20\", \"docket_number\": \"CC-89-240\", \"first_page\": \"28\", \"last_page\": \"28\", \"citations\": \"18 Ct. Cl. 28\", \"volume\": \"18\", \"reporter\": \"Report of the West Virginia Court of Claims\", \"court\": \"West Virginia Court of Claims\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T21:03:35.815442+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"W.J. CLARK SEPTIC TANK SERVICE, INC. VS. DEPARTMENT OF HEALTH\", \"head_matter\": \"OPINION ISSUED DECEMBER 20, 1989\\nW.J. CLARK SEPTIC TANK SERVICE, INC. VS. DEPARTMENT OF HEALTH\\n(CC-89-240)\\nNo appearance by claimant.\\nLowell D. Greenwood, Assistant Attorney General, for respondent.\", \"word_count\": \"122\", \"char_count\": \"741\", \"text\": \"PER CURIAM:\\nThis claim was submitted for decision based upon the allegations in the Notice of Claim and the respondent's Answer.\\nClaimant seeks $910.00 for sanitary facilities which were destroyed by patients at Huntington State Hospital, a facility of the respondent. The respondent admits the validity and amount of the claim but states that it was unable to pay for the loss of the sanitary facilities as it does not have a fiscal method to do so.\\nIn view of the foregoing, the Court makes an award in the amount sought.\\nAward of $910.00.\"}"
\ No newline at end of file
diff --git a/w_va/11647109.json b/w_va/11647109.json
new file mode 100644
index 0000000000000000000000000000000000000000..bf399b10d1efa9f3bb95f0dc3d7207ee5cd23132
--- /dev/null
+++ b/w_va/11647109.json
@@ -0,0 +1 @@
+"{\"id\": \"11647109\", \"name\": \"JANEY N. QUICK VS. DEPARTMENT OF HIGHWAYS\", \"name_abbreviation\": \"Quick v. Department of Highways\", \"decision_date\": \"1988-02-19\", \"docket_number\": \"CC-87-157\", \"first_page\": \"104\", \"last_page\": \"105\", \"citations\": \"17 Ct. Cl. 104\", \"volume\": \"17\", \"reporter\": \"Report of the West Virginia Court of Claims\", \"court\": \"West Virginia Court of Claims\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T01:10:45.871916+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JANEY N. QUICK VS. DEPARTMENT OF HIGHWAYS\", \"head_matter\": \"OPINION ISSUED FEBRUARY 19, 1988\\nJANEY N. QUICK VS. DEPARTMENT OF HIGHWAYS\\n(CC-87-157)\\nClaimant appeared in person.\\nNancy J. Aliff, Attorney at Law, for respondent.\", \"word_count\": \"342\", \"char_count\": \"2077\", \"text\": \"PER CURIAM:\\nThe claimant was operating her 1982 Subaru on Route 7/19, Monongalia Boulevard, Monongalia County, when her vehicle struck two rocks. Cost of repair to the vehicle amounted to $257.46. The rocks had rolled from a hill over a retaining wall onto the highway. The incident occurred on May 19, 1987, at approximately 5:00 a.m. The claimant was driving to her place of employment at Internal Medicine Associates in Morgantown. She testified that she was travelling at between 40 and 45 mph. She stated that she had observed rocks on the shoulder of the road on previous occasions, but not on the highway itself. She travelled this route on a daily basis.\\nWilliam L. Fieldhouse, County Maintenance Superintendent for Monongalia County, testified that he was familiar with the hillside in the area of the roadway in question. He described the roadway as being a four-lane highway with very wide berms. He stated that the hillside is a very steep slope along the edge of the road; it is not a benched cliff. The witness mentioned that the back side of this particular retaining wall is checked regularly. Prior to the claimant's accident, he had not been advised of any complaints of rocks in the roadway itself.\\nThe State is neither an insurer nor a guarantor of the safety of motorists travelling on its roadways. The unexplained falling of a rock or boulder onto a highway, without a positive showing that respondent knew or should have anticipated damage to property is insufficient to justify an award. Hammond vs. Dept. of Highways, 11 Ct.Cl. 234 (1977). William L. Fieldhouse, County Maintenance Superintendent for Monongalia County, with respondent, testified that there had been no complaints of rock in the roadway immediately prior to claimant's action. The Court concludes that claimant has not shown any negligence on the part of respondent to justify an award in this claim.\\nClaim disallowed.\"}"
\ No newline at end of file
diff --git a/w_va/11648076.json b/w_va/11648076.json
new file mode 100644
index 0000000000000000000000000000000000000000..7df3ebbdbf4e5ffc30764bcc00156ba63b00c401
--- /dev/null
+++ b/w_va/11648076.json
@@ -0,0 +1 @@
+"{\"id\": \"11648076\", \"name\": \"JUDY BAILEY VS. DIVISION OF HIGHWAYS; PAULINE LUCION VS. DIVISION OF HIGHWAYS\", \"name_abbreviation\": \"Bailey v. Division of Highways\", \"decision_date\": \"1994-01-21\", \"docket_number\": \"CC-92-324; CC-92-335\", \"first_page\": \"55\", \"last_page\": \"57\", \"citations\": \"20 Ct. Cl. 55\", \"volume\": \"20\", \"reporter\": \"Report of the West Virginia Court of Claims\", \"court\": \"West Virginia Court of Claims\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T23:44:04.286574+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JUDY BAILEY VS. DIVISION OF HIGHWAYS PAULINE LUCION VS. DIVISION OF HIGHWAYS\", \"head_matter\": \"OPINION ISSUED JANUARY 21, 1994\\nJUDY BAILEY VS. DIVISION OF HIGHWAYS PAULINE LUCION VS. DIVISION OF HIGHWAYS\\n(CC-92-324)\\n(CC-92-335)\\nLacy A. Wright, Attorney at Law, for claimants.\\nGlen A. Murphy, Attorney at Law, for respondent.\", \"word_count\": \"630\", \"char_count\": \"3856\", \"text\": \"STEPTOE, JUDGE:\\nJudge Bailey and Pauline Lucion, who are sisters living in separate, side-by-side dwellings in McDowell County, filed separate claims against the respondent for real and personal property damages which they separately incurred as a result of two rock and earth slides which descended upon their respective homes on 21 July 1992 and 27 July 1992, from a nearby embankment above their homes, which supported West Virginia Secondary Route 7, in McDowell County, at the town of Hensley.\\nRespondent denied negligence on its part. The cases were consolidated for hearing, which took place on 5 August 1993.\\nIt appears from the evidence that the residence of each claimant had been constructed many years before the slides of July 1992; that the rear of each home was within a few feet of the foot of a steep highway embankment which rose as much as thirty feet from the level on which the residences rested; that the slides took place after a period of heavy rains; and that the embankment material which came to rest against the houses was largely mud and rock, the level of which eventually rose to about five feet against the Lucion house. Extensive damage was done to each house, in the case of the Bailey property caused by a tree which had been displaced and fell against her house.\\nIt further appears from the evidence that prior to 21 July 1992 complaints had been lodged with respondent about the surface water coming over the road and down the embankment and under the claimants' homes.\\nIf further appears from the evidence that the instability of the embankment immediately before the slide which caused the damage to claimant's homes was due to respondent's failure to prevent large quantities of surface water originating from the upper side of Route 7, from crossing the road and entering upon and permeating the embankment immediately above claimants' homes; that there was a ditch on the upper side of the road, but it was frequently obstructed and infrequently cleared by the respondent, so much so that one of the claimants herself took it upon herself, from time to time, to try to clear it. It may well be, moreover, that respondent's action in driving new guardrails into the embankment, several months before the slide, contributed to the instability of the embankment.\\nIn any event, respondent was on notice of instability of the embankment and failed to take effective measures to deal with the problem, and its failure to do so was negligence which proximately caused the damage to the claimants' homes.\\nDamages proximately caused by such negligence were:\\n1.) to Judy Bailey:.\\nElectrical work, materials and labor $3,700.00\\nFloor covering for dining room 500.00\\n19-inch Samsun TV set 166.00\\nNintendo set 129.00\\nAM-FM cassette 60.00\\nClock radio 29.95\\nClean-up expense 200.00\\ninconvenience and loss of use of home 1,000,00\\nTOTAL $5,784.95\\n2.) to Pauline Lucion:\\nFurnace re-work, repair of cracks in foundation, replacement of concrete sidewalk, vinyl siding,\\nroof over-hang and guttering and spouting $2,100.00\\nLabor employed by claimant 680.00\\nClean-up materials 50.00\\nGravel and lime 111.29\\nReplacement of Rainbow Cleaner 639.40\\nPaint 42.35\\nDamage to water softener 100.00\\nDamage to lawn mower 50.00\\nDamage to antique furniture 500.00\\nDamage to bicycle 60.00\\nLoss of Christmas ornaments 100.00\\nLoss of old clothing 100.00\\nLoss of books 100.00\\nLoss of building materials purchased in 1991 210.00\\nLoss of school supplies 100.00\\nInconvenience and loss of use of home 1,000.00\\nTOTAL $5,943.04.\\nAward to Judy Bailey in the amount of $5,784.95.\\nAward to Pauline Lucion in the amount of $5,943.04.\"}"
\ No newline at end of file
diff --git a/w_va/11651973.json b/w_va/11651973.json
new file mode 100644
index 0000000000000000000000000000000000000000..78b5dc6191f554f6961c038a5ce01f8f9e286806
--- /dev/null
+++ b/w_va/11651973.json
@@ -0,0 +1 @@
+"{\"id\": \"11651973\", \"name\": \"JACOB C. MILLER VS. DIVISION OF CORRECTIONS\", \"name_abbreviation\": \"Miller v. Division of Corrections\", \"decision_date\": \"1993-02-05\", \"docket_number\": \"CC-90-391\", \"first_page\": \"215\", \"last_page\": \"216\", \"citations\": \"19 Ct. Cl. 215\", \"volume\": \"19\", \"reporter\": \"Report of the West Virginia Court of Claims\", \"court\": \"West Virginia Court of Claims\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T18:23:53.847405+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JACOB C. MILLER VS. DIVISION OF CORRECTIONS\", \"head_matter\": \"OPINION ISSUED FEBRUARY 5, 1993\\nJACOB C. MILLER VS. DIVISION OF CORRECTIONS\\n(CC-90-391)\\nRepresents self.\\nLarry M. Bonham, Assistant Attorney General, for respondent.\", \"word_count\": \"142\", \"char_count\": \"873\", \"text\": \"PER CURIAM:\\nClaimant, an employee of the Anthony Center Education Unit, brought this action to recover back wages in the amount of $34,076.08. The Anthony Center Education Unit is part of the Anthony Center facility of the respondent in Greenbrier County. A portion of this claim was paid to claimant by the Department of Education as the claimant was at one time employed within the Department of Education although he was working at the Anthony Center.\\nRespondent in its Answer admitted the allegations and facts in the claim and that claimant is entitled to the sum of $30,512.79 for the back wages.\\nAccordingly, the Court makes an award to the claimant in the amount of $30,512.79.\\nAward of $30,512.79.\"}"
\ No newline at end of file
diff --git a/w_va/11910846.json b/w_va/11910846.json
new file mode 100644
index 0000000000000000000000000000000000000000..fc48ac0ced087ba5777ffced09da8a8b85e5d94a
--- /dev/null
+++ b/w_va/11910846.json
@@ -0,0 +1 @@
+"{\"id\": \"11910846\", \"name\": \"CLAY COUNTY CITIZENS FOR FAIR TAXATION, et al., Appellants, v. The CLAY COUNTY COMMISSION, in its Capacity as a Local Governmental Entity of the State of West Virginia; Jerry Bird, in His Capacity as President of the Clay County Commission; Ronald R. Haynes, in His Capacity as a Member of the Clay County Commission; and R.T. Sizemore, in His Capacity as a Member of the Clay County Commission, Appellees\", \"name_abbreviation\": \"Clay County Citizens for Fair Taxation v. Clay County Commission\", \"decision_date\": \"1994-12-14\", \"docket_number\": \"No. 22256\", \"first_page\": \"408\", \"last_page\": \"412\", \"citations\": \"192 W. Va. 408\", \"volume\": \"192\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T17:29:25.068309+00:00\", \"provenance\": \"CAP\", \"judges\": \"BROTHERTON, C.J., did not participate.\", \"parties\": \"CLAY COUNTY CITIZENS FOR FAIR TAXATION, et al., Appellants, v. The CLAY COUNTY COMMISSION, in its Capacity as a Local Governmental Entity of the State of West Virginia; Jerry Bird, in His Capacity as President of the Clay County Commission; Ronald R. Haynes, in His Capacity as a Member of the Clay County Commission; and R.T. Sizemore, in His Capacity as a Member of the Clay County Commission, Appellees.\", \"head_matter\": \"452 S.E.2d 724\\nCLAY COUNTY CITIZENS FOR FAIR TAXATION, et al., Appellants, v. The CLAY COUNTY COMMISSION, in its Capacity as a Local Governmental Entity of the State of West Virginia; Jerry Bird, in His Capacity as President of the Clay County Commission; Ronald R. Haynes, in His Capacity as a Member of the Clay County Commission; and R.T. Sizemore, in His Capacity as a Member of the Clay County Commission, Appellees.\\nNo. 22256.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted Nov. 1, 1994.\\nDecided Dec. 14, 1994.\\nMichael C. Farber, Sutton, for appellants.\\nJeffery A. Davis, Pros. Atty., Clay County, Clay, for appellees.\", \"word_count\": \"2146\", \"char_count\": \"13086\", \"text\": \"NEELY, Justice:\\nIn the circuit court, the appellants challenged the constitutionality of W.Va.Code 7-15-17 [1975] which allows county commissions to impose a Special Emergency Ambulance Service Fee. The circuit court concluded that the Special Emergency Ambulance Service Fee Ordinance was constitutional and this appeal followed. We affirm the circuit court.\\nOn 13 May 1991, the Clay County Commission enacted the Special Emergency Ambulance Service Fee Ordinance and imposed a $25 annual fee upon \\\"any bona fide owner or occupant of a living unit within the geographic boundaries of Clay County, West Virginia.\\\" The ordinance defines \\\"living unit\\\" as \\\"any personal property and real property owner and taxpayers in any place of residence as classified by the records of the Clay County Assessor which include residential homes, mobile homes, apartments, personal care facilities, nursing homes and correctional facilities.\\\" The Special Emergency Ambulance Service Fee was defined as \\\"a specified uniform fee charged to each living unit that ambulance service is made available to and entitles the resident user to necessary 911 emergency transport calls to the nearest medical facility and includes the services set forth in 'Ambulance Rates' below-\\\" Essentially this ordinance assesses a fee on each Clay County household to support the provision of ambulance services.\\nThe appellants' challenge to the service fee ordinance is twofold: (1) the ambulance service fee confounds the equal and uniform property taxation requirement of W.Va. Const, art. X, \\u00a7 1 because the fee is imposed only upon occupants of residential property and not upon mineral owners and other owners of raw land; and, (2) the gross underas- sessment of natural resource property in Class III imposes an unfair burden on the homeowners in Class II such that \\\"even though homeowners in Class II are taxed at a lower levy rate they actually paid more in property taxes in 1992 than all Class III owners.\\\"\\nI\\nW.Va.Code 7-15-17 [1975] states:\\nA county commission may, by ordinance, impose upon and collect from the users of emergency ambulance service within the county a special service fee, which shall be known as the \\\"special emergency ambulance service fee.\\\" The proceeds from the imposition and collection of any such special service fee shall be deposited in a special fund and used only to pay reasonable and necessary expenses actually incurred and the cost of buildings and equipment used in providing emergency ambulance service to residents of the county. Such proceeds may be used to pay for, in whole or in part, the establishment, maintenance and operation of an authority, as provided for in this article.\\nAs used in this section, \\\"users\\\" means any person to whom emergency ambulance service is made available under the provisions of this article.\\nThis Code section authorizes a county commission to impose and collect a special emergency ambulance service fee from the \\\"users of emergency ambulance service.\\\" According to W.Va.Code 7-15-17 [1975], \\\"'users' means any person to whom emergency ambulance service is made available under the provisions of this article.\\\"\\nIn their first challenge, the appellants argue that the ambulance fee is essentially an ad valorem tax, which violates the \\\"equal and uniform\\\" taxation requirement of W.Va. Const, art X, \\u00a7 l. However the record shows that the ambulance fee is reasonably related to the service's use and is not imposed as an additional ad valorem tax. In City of Fairmont v. Pitrolo Pontiac-Cadillac, Co., 172 W.Va. 505, 308 S.E.2d 527 (1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2169, 80 L.Ed.2d 553 (1984), this Court held that fees assessed for fire service by the City of Fairmont constituted an ad valorem tax and not a service fee because the city used assessments made by the county assessor for the general property tax to determine the value of the property subject to charge and set the charge in proportion to the property value. Consequently, we held that because the tax rate was based on the value of property and the city was already at maximum authorized levy rate, the tax violated our constitutional levy provisions. W.Va.Const. art. X, \\u00a7 1; W.Va.Code 8-13-13 [1971] (authorizing fees for municipal services); W.Va. Code ll-8-6d [1949] (maximum levies on each property classification). Accord Hare v. City of Wheeling, 171 W.Va. 284, 298 S.E.2d 820 (1982).\\nIn McCoy v. City of Sistersville, 120 W.Va. 471, 199 S.E. 260 (1938) this Court held invalid ordinances relating to (1) street lighting; (2) sanitary sewerage; (3) garbage collection; and, (4) street cleaning. The basis of the McCoy decision was that such ordinances imposed, in violation of the predecessor of W.Va.Code 8-13-13 [1971], a burden upon the owners of property, rather than upon all users of the services. However, a fire protection ordinance was upheld in McCoy upon the theory that property owners were the primary users of the fire protection service. Nonetheless, with respect to the fire protection ordinance, this Court noted that had the entire value of the real estate and the assessed value of personal property been used as a basis for the fire protection charge, \\\"a serious question would have been raised as to a violation of the limitation amendments_\\\" 120 W.Va. at 478, 199 S.E. at 263.\\nThen, in City of Moundsville v. Steele, 152 W.Va. 465, 164 S.E.2d 430 (1968), this Court upheld an ordinance that imposed a charge for street maintenance upon occupiers of improved property abutting the streets of the city. We concluded that a 25 cents per front foot of improved property abutting the street was a valid and reasonable classification for the imposition of a street maintenance user fee.\\nConsequently, this Court \\u2014 exactly contrary to the appellants' contention \\u2014 has consistently held that user fees must be imposed in a way reasonably related to use of the service and cannot be imposed in such a way as simply to add to the ad valorem property tax. In the case at bar, each \\\"residential living unit\\\" is assessed a $25 fee.\\nThe Clay County Special Emergency Ambulance Service Fee is imposed under a scheme similar to fees imposed under W.Va. Code 8-13-13 [1971] which authorizes special charges for municipal services and the imposition \\\"upon the users of such service reasonable rates, fees and charges.\\\" See Nine v. Grant Town, 190 W.Va. 86, 88, 437 S.E.2d 250, 252 (1993) (noting the purpose of W.Va. Code 8-13-13 [1971]); Ellison v. City of Parkersburg, 168 W.Va. 468, 473, 284 S.E.2d 903, 906 (1981) (initial billing of the municipal fees to the property's owner is not \\\"inherently unreasonable\\\"). At oral argument, the appellants asserted that the fee scheme is inequitable because a single person living in an apartment pays the same $25 that the head of a ten-child household pays while the owner of a hunting camp that is used only occasionally pays nothing.\\nWe recognize that perfect equity is impossible to achieve in any tax scheme, but perfect equity is not the test. The fee enacted by the Clay County Commission succeeds in imposing upon and collecting \\\"from the users of emergency ambulance service within the county a special service fee_\\\" Obviously, owners of raw land do not use ambulance services; owners of mineral interests do not use ambulance services; and owners of huge farms do not use ambulance services any more frequently than renters of apartments. Given the administrative difficulties of collecting the fee on any basis other than a per household basis, we find that the fee imposed is sufficiently related to the use of the special service for which the fee is imposed that the scheme survives constitutional challenge. An emergency ambulance service fee that taxes each household regardless of the number of members $25 a year to support ambulance services succeeds in tying the burden of the fee to the usage of the service in a sufficiently reasonable way to satisfy the requirements of W.Va.Code 7-15-17 [1975] and it is valid, lawful and enforceable under W.Va.Code 7-15-17 [1975].\\nThus we find that the Clay County Special Emergency Ambulance Service Fee Ordinance enacted pursuant to the authority of W.Va.Code 7-15-17 [1975] does not deny residents of the county due process of law or equal protection of the laws because it fails to tax non-resident landowners who are not regular users of ambulance services.\\nII\\nThe appellants also assert that imposing this special service fee upon ordinary residents of Clay County is unconstitutional because the Clay County Commission has systematically underassessed the natural resource property in Clay County. Appellants argue that because W.Va.Const. art. X, \\u00a7 1 requires \\\"equal and uniform taxation\\\" on its face, the gross underassessment of natural resource property in Clay County is a direct violation of this constitutional mandate. One part of the second argument (which admittedly is difficult to follow) is that the collection of a user fee from each residential unit in Clay County violates due process and equal protection because the ordinance does not apply to out-of-county landowners. Thus a small homeowner is required to pay a fee, while a large out-of-state coal owner has no obligation to support this public service.\\nOur earlier discussion of the constitutional limits of ad valorem taxation as set forth in Pitrolo, supra, along with our discussion of McCoy, supra, should have put to rest any notion that nonusers of a public service can be taxed a fee dedicated to the support of that service. The larger issue that appellants argue, however, is that fees of this type would not be necessary if the West Virginia Legislature, the West Virginia Tax Commissioner, the West Virginia Board of Public Works, and the Clay County Assessor \\u2014 all officials who have something to do with the taxation of public utility and mineral property \\u2014 would do their jobs and assess mineral interests \\\"in proportion to its value,\\\" W.Va. Const, art. X, \\u00a7 1. Were this done, appellants argue, there would be sufficient revenue available to the Clay County Commission that special service fees on ordinary citizens would not be necessary.\\nThe issue of the proper assessment of mineral lands, public utility lands and large tracts of land held for speculation or to harvest timber is constantly debated, and few subjects command as much public attention as taxation. See e.g., Colman McCarthy, A Fighter in W. Va., Wash. Post, Oct. 29, 1994, at A19 (W.Va. Sec. of State Ken Hechler discussing ways \\\"to bring fairness to our tax system\\\"). In the case before us, the appellants invite us to do no less than use the Clay County Special Emergency Ambulance Service Fee as a fulcrum upon which to rest the lever that would completely overhaul (by judicial fiat) the tax system of this State. We have discussed the need for fair taxation of all property in this State on numerous occasions in the last 15 years and see no reason to restate those principles here. See, e.g., Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859 (1979); Tug Valley Recovery Center, Inc. v. Mingo County Comm'n, 164 W.Va. 94, 261 S.E.2d 165 (1979); Killen v. Logan County Comm'n, 170 W.Va. 602, 295 S.E.2d 689 (1982).\\nAlthough in a given case we will decide whether a particular parcel of property has been taxed in proportion to its value, we are judges and not legislators, assessors or tax commissioners. Furthermore, we are sure that if we were to accept the appellants' invitation to reassess all of the Class III and IV property in West Virginia \\u2014 or even just in Clay County \\u2014 we would do no better job of it than the tax commissioner and the assessors. In addition, we would cease being judges and become publicans.\\nAccordingly, for the reasons set forth above, the judgment of the Circuit Court of Clay County is affirmed.\\nAffirmed.\\nBROTHERTON, C.J., did not participate.\\nMILLER, Retired Justice, sitting by temporary assignment.\\n. The appellants include the Clay County Citizens for Fair Taxation, an unincorporated association, its officers, board members and other individuals.\\n. W.Va.Const. art X, \\u00a7 1, begins with the basic and fundamental premise that \\\"taxation shall be equal and uniform through out the State....\\\"\\n. See City of Charleston v. Bd. of Educ. of County of Kanawha, 158 W.Va. 141, 144, 209 S.E.2d 55, 57 (1974) (\\\"a charge by a municipality for services rendered or for conveniences provided is not a tax. [Citations omitted.]\\\").\"}"
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+"{\"id\": \"2384103\", \"name\": \"STATE of West Virginia ex rel. Laura MEADOWS and Danny Martin, Petitioners, v. Ken HECHLER, Secretary of State of West Virginia; Earl Ray Tomblin, President of the Senate of West Virginia; and Robert C. Chambers, Speaker of the House of Delegates of West Virginia, Respondents\", \"name_abbreviation\": \"State ex rel. Meadows v. Hechler\", \"decision_date\": \"1995-07-19\", \"docket_number\": \"No. 22875\", \"first_page\": \"11\", \"last_page\": \"20\", \"citations\": \"195 W. Va. 11\", \"volume\": \"195\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T21:40:25.445096+00:00\", \"provenance\": \"CAP\", \"judges\": \"BROTHERTON, J., did not participate.\", \"parties\": \"STATE of West Virginia ex rel. Laura MEADOWS and Danny Martin, Petitioners, v. Ken HECHLER, Secretary of State of West Virginia; Earl Ray Tomblin, President of the Senate of West Virginia; and Robert C. Chambers, Speaker of the House of Delegates of West Virginia, Respondents.\", \"head_matter\": \"462 S.E.2d 586\\nSTATE of West Virginia ex rel. Laura MEADOWS and Danny Martin, Petitioners, v. Ken HECHLER, Secretary of State of West Virginia; Earl Ray Tomblin, President of the Senate of West Virginia; and Robert C. Chambers, Speaker of the House of Delegates of West Virginia, Respondents.\\nNo. 22875.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted June 27, 1995.\\nDecided July 19, 1995.\\nDaniel F. Hedges, Charleston, for Petitioners.\\nDaynus Jividen, Assistant Attorney General, Charleston, for Respondent Secretary of State.\\nMichael R. Crane, Jennifer Bailey Walker, Charleston, for Respondent Tomblin.\\nM.E. Mowrey, Charleston, for Respondent Chambers.\", \"word_count\": \"5469\", \"char_count\": \"35187\", \"text\": \"WORKMAN, Justice:\\nPetitioners Laura Meadows and Danny Martin seek a writ of mandamus to compel the filing of certain agency regulations pertaining to personal care homes by Respondent West Virginia Secretary of State (\\\"Secretary\\\"). As grounds for the requested relief, Petitioners aver that West Virginia Code \\u00a7 29A-3-12(b) (Supp.1994) is unconstitutional in that it violates the separation of powers provision of Article V, Section 1 of the West Virginia Constitution by enabling the Legislature to prohibit the implementation of specifically mandated regulations through purposeful languishment in legislative committees. Upon careful consideration of this issue, we conclude that West Virginia Code \\u00a7 29A-3-12(b) is unconstitutional.\\nDiscussion of this case requires a recitation of certain factual and procedural matters that impelled the filing of the instant action. In 1988, the Legislature substantially amended chapter sixteen of the West Virginia Code as it pertained to licensure, standards, and enforcement procedures for personal care homes. See W.Va.Code \\u00a7 16-5C-1 to -18 (1995). One of the revised sections mandated that the Board of Health propose legislative rules establishing certain minimum standards for the operation and licensure of personal care homes for promulgation pursuant to the West Virginia Administrative Procedures Act (\\\"APA\\\"), West Virginia Code \\u00a7 29A-3-1 to -17 (1993 & Supp.1994). See W.Va.Code \\u00a7 16-5C-5. The Legislature delegated responsibility for developing the proposed regulations to the Office of Health Facility Licensure and Certification.\\nIn 1992, Petitioners' counsel instituted a class action in the United States District Court for the Southern District of West Virginia based on the lack of state regulations governing West Virginia's personal care homes. Through the complaint filed in that action, it was averred that the absence of adequate regulations, standards, and enforcement provisions violated the federal Keys Amendment as well as the prohibition against handicap discrimination. See Wolford ex rel. Mackey v. Lewis, 860 F.Supp. 1123 (S.D.W.Va.1994). By order entered on March 21,1994, the district court granted the Wolford plaintiffs' motion for summary judgment. The order granting summary judgment includes findings that the West Virginia regulations governing personal care homes do not comply with the applicable Keys Amendment provisions or state law mandating that new regulations be implemented. Because of this lack of compliance with state and federal law, the district court ordered that a remedial plan be submitted to and approved by it within ninety days. Id. at 1137.\\nThe DHHR timely submitted the West Virginia Comprehensive Long-Term Care Plan (\\\"Plan\\\") required by Wolford with the district court in June 1994. According to the timetable included in the Plan, all of the substantive standards pertaining to personal care homes were to be in effect and implemented by June 1, 1995. The Plan further required that regulations regarding enforcement procedures were to be drafted by July 1, 1994, and to be finalized by July 1, 1995. Petitioners assert that the proposed regulations had to be filed in August 1994 to allow for legislative approval during the 1995 regular legislative session.\\nOn August 15, 1994, the DHHR filed the proposed legislative rules regarding personal care homes with the legislative rule-making review committee (\\\"Committee\\\") and the Secretary. On January 1,1995, the proposed rules were approved, with minor modifications, by the Committee. As required by West Virginia Code \\u00a7 29A-3-ll(c), the Committee filed notice of its approval of the proposed rules in the state register and the modified proposed rules were filed with the Secretary of State on January 16, 1995. In accordance with West Virginia Code \\u00a7 29A-3-11 and -12, bills authorizing the promulgation of the proposed rules were introduced in the Senate on January 20,1995, and in the House of Delegates (\\\"House\\\") on January 23, 1995.\\nThe President of the Senate triple referred the Senate bill to the Committees on Health and Human Resources, Finance, and the Judiciary. On February 10, 1995, the Senate Committee on Health and Human Resources recommended passage of the bill and sent the bill to the Finance Committee. Then on February 28, 1995, the Senate Finance Committee tabled the bill by voice vote.\\nPrior to the recommendation of passage by the Senate Committee on Health and Human Resources, the House Committee on Health and Human Resources had already rendered the same recommendation on February 2, 1995. The House bill, however, did not proceed to the House Judiciary Committee for consideration when it was learned that the Senate version of the bill had died in the Finance Committee. No farther consideration of the bill was made by either the Senate or the House.\\nThis original proceeding was initiated to determine whether West Virginia Code \\u00a7 29A-3-12(b), which permits proposed administrative regulations to \\\"die\\\" if the Legislature fails to take action on them, is a violation of our constitutional separation of powers requirement found in article V, section l. The language of West Virginia Code \\u00a7 29A-3-12(b) provides that:\\nIf the Legislature fails during its regular session to act upon all or part of any legislative rule which was submitted to it by the legislative rule-making review committee during such session, no agency may thereafter issue any rule or directive or take other action to implement such rule or part thereof unless and until otherwise authorized to do so.\\nId. Petitioners argue that the broad legislative veto power created by West Virginia Code \\u00a7 29A-8-12(b) upsets the balance of power required between the executive and legislative branches of state government by invasively intruding into executive function.\\nThe separation of powers doctrine expressly stated in our constitution is a core principle of our system of government, whose roots can be traced back to the founding of this country. See Hodges v. Public Serv. Comm'n, 110 W.Va. 649, 652-54, 159 S.E. 834, 835-36 (1931) (discussing the origin of the separation of powers principle and noting \\\"that the very first resolution passed in the convention which framed our national Constitution called for a separation of governmental powers\\\"); see generally Buckley v. Valeo, 424 U.S. 1, 120-24, 96 S.Ct. 612, 682-85, 46 L.Ed.2d 659 (1976). In State ex rel. State Building Commission v. Bailey, 151 W.Va. 79, 150 S.E.2d 449 (1966), we discussed this fundamental precept of government:\\n'The Constitution, in distributing the powers of government, creates three distinct and separate departments \\u2014 the legislative, the executive, and the judicial. This separation is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital, namely, to preclude a commingling of these essentially different powers of government in the same hands. .\\nIf it be important thus to separate the several departments of government and restrict them to the exercise of their appointed powers, it follows, as a logical corollary, equally important, that each department should be kept completely independent of the others \\u2014 independent not in the sense that they shall not cooperate to the common end of carrying into effect the purposes of the Constitution, but in the sense that the acts of each shall never be controlled by, or subjected, directly or indirectly, to, the coercive influence of either of the other departments____'\\nIn considering the importance of provisions relating to the separation of the departments of government, the Supreme Court of the United States in Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377, said: 'It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to government, whether State or national, are divided into the three grand departments, . It is . essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other.'\\n151 W.Va. at 85-86, 150 S.E.2d at 453 (quoting, in part, O'Donoghue v. United States, 289 U.S. 516, 530, 53 S.Ct. 740, 743, 77 L.Ed. 1356 (1933)) (citation omitted) (emphasis supplied).\\nWe crystallized the significance of the separation of powers doctrine in syllabus point one of State ex rel. Barker v. Manchin, 167 W.Va. 155, 279 S.E.2d 622 (1981):\\nArticle V, section 1 of the Constitution of West Virginia which prohibits any one department of our state government from exercising the powers of the others, is not merely a suggestion; it is part of the fundamental law of our State and, as such, it must be strictly construed and closely followed.\\nId. at 155-56, 279 S.E.2d at 624.\\nWest Virginia Code \\u00a7 29A-3-12(b) grants, in effect, an outright veto power to the Legislature by permitting that branch to block the implementation of proposed agency regulations \\\"[i]f the Legislature fails during its regular session to act upon all or part of any legislative rule . submitted to it by the legislative rule-making review committee.\\\" The question before us is whether this unchecked legislative veto power over administrative agency rules impermissibly encroaches upon the functioning of the executive branch in violation of the separation of powers provision of our constitution.\\nRespondents Tomblin and Chambers (hereinafter the \\\"legislative Respondents\\\") plenarily deny the existence of a separation of powers issue. They argue that the executive branch and the attendant concerns of separation of powers are not introduced into the rule-making equation until the Legislature actually approves of proposed agency rules. The legislative Respondents premise their reasoning upon the postulate that rule-making \\\"at its essence, [is] a legislative function\\\" which only becomes executive in function upon an express delegation of authority by the Legislature. Specifically, the legislative Respondents contend that: \\\"The agency was never authorized to act, only to propose a rule. The agency has no power to promulgate the rule until such time as the Legislature . has authorized the promulgation.\\\" Based on this view that the executive branch lacks authority to promulgate regulations, the legislative Respondents deny the existence of a legislative veto arising from the, provisions of West Virginia Code \\u00a7 29A-3-12(b). In other words, until the Legislature approves of proposed regulations, no delegation of executive authority has occurred and therefore, no separation of powers problem comes into existence.\\nNot only do we find this argument to be spurious, but as Petitioners observe, such a position \\\"is the most extreme assertion of legislative authority.\\\" As we explained in Barker, \\\"When the Legislature delegates its rule-making power to an agency of the Executive Department, as it did here ., it vests the Executive Department with the mandatory duty to promulgate and to enforce rules and regulations.\\\" 167 W.Va. at 169, 279 S.E.2d at 631. Contrary to the argument advanced by the legislative Respondents, the rule-making function comes under the executive department's bailiwick upon the delegation of the duty to propose rules for promulgation. See id. at 168, 279 S.E.2d at 631 (recognizing Legislature's option to delegate to the Executive its power to enact rules and regulations to protect the welfare, safety and health of the public); accord Nonintoxicating Beer Comm'r v. A & H Tavern, 181 W.Va. 364, 366, 382 S.E.2d 558, 560 (1989); see also Consumer Energy Council of America v. Federal Energy Regulatory Comm'n, 673 F.2d 425, 471 (1982), aff'd sub nom. Process Gas Consumers Group v. Consumer Energy Council, 463 U.S. 1216, 103 S.Ct. 3556, 77 L.Ed.2d 1402 (1983) (recognizing that United States \\\"Supreme Court has held that rulemaking is substantially a function of administering and enforcing the public law . [and] [a]s such, Congress may not create a device enabling it, or one of its houses, to control agency rulemaking\\\"); General Assembly of New Jersey v. Byrne, 90 N.J. 376, 448 A.2d 438, 443 (1982), superceded by statute/rule on other grounds as stated in Kimmelman v. Burgio, 204 N.J.Super. 44, 497 A.2d 890 (1985) (recognizing that \\\"administrative agencies are the arms of the executive branch of government through which it executes the laws\\\").\\nIn the Barker case, we examined the provision of the APA which previously permitted the legislative rule-making review committee to veto rules and regulations otherwise validly promulgated and concluded that such provision violated the separation of powers doctrine. 167 W.Va. at 166-78, 279 S.E.2d at 630-36. In reaching that conclusion, we stated:\\nWhat the Legislature has attempted to do here is to invest itself with the power to promulgate rules having the force and effect of law outside the constitutional limitations imposed upon the legislative branch in the exercise of that power. In effect, the Legislature abdicates in favor of the executive its power to make rules and then asserts that because the rule-making power so delegated is legislative in nature, it may step into the role of the executive and disapprove or amend administrative regulations free from the constitutional restraints on its power to legislate---Such a mechanism for legislative review of executive action may properly be called an 'extra-legislative control device' for it permits the Legislature to act as something other than a legislative body to control the actions of the other branches. This is in direct conflict with our constitutional requirement of separation of powers. The power of the Legislature in cheeking the other branches of government is to legislate. While the Legislature has the power to void or to amend administrative rules and regulations, when it exercises that power it must act as a legislature through its collective wisdom and will, within the confines of the enactment procedures mandated by our constitution. It cannot invest itself with the power to act as an administrative agency in order to avoid those requirements.\\nId. at 172-73, 279 S.E.2d at 633 and Syl. Pt. 2 (citation omitted). The Legislature responded to Barker by amending West Virginia Code \\u00a7 29A-3-11 to delineate the Committee's review function and further, to limit the Committee's power concerning passage or denial of proposed regulations to making a recommendation to the Legislature.\\nThere is very little to distinguish between what we found to be unconstitutional in Barker and what is at issue here. In Barker, we found a separation of powers violation resulting from the provisions of the APA which authorized the legislative rule-making review committee to veto proposed administrative rules and regulations. Id. at 178, 279 S.E.2d at 636 and Syl.Pt. 3. Borrowing from the reasoning articulated by H. Lee Watson in his article, Congress Steps Out; A Look at Congressional Control of the Executive, 63 Cal.L.Rev. 983 (1975), we identified in Barker the inherent shortcomings of permitting direct legislative review of executive action without the countervailing safeguards of the enactment process:\\nWatson concludes that the legislative committee veto is the most clearly constitutionally invalid of the legislative control devices, rendered invalid per se by virtue of its impact on the process. By placing the final control over governmental actions in the hands of only a few individuals who are answerable only to local electorates, the committee veto avoids the concept of 'constitutional averaging' foreseen by the framers of the constitution as a means of balancing the dual role given legislators. While Watson views this consequence to our system of government as the most significant constitutional deficiency of the committee veto, he also considers it infirm in that it gives a small portion of the legislative membership a continuing role in governmental decision making once the formal lawmaking processes have been completed. The legislature vests the members of the committee with a post-legislative discretionary power, the exercise of which impermissibly fosters legislative dominance and expansion of power in several ways. First, by providing that the executive exercises discretion only at the pleasure of the reviewing committee, the legislature usurps the traditional role, of the executive to fill in the interstices left by flexible statutory standards by exercising legislatively delegated discretionary power. In effect the executive exercise of discretion is replaced by committee exercise of discretion, increasing the role of the legislature at the expense of the executive.\\n167 W.Va. at 177, 279 S.E.2d at 635-36.\\nPetitioners argue that the proposed regulations were prevented from being approved by the full Legislature because of one or two individuals who were acting at the behest of special interest groups. Since the legislative Respondents do not dispute Petitioners' contention that the tabling of the proposed regulations can be and was effectuated by one or two individuals, the separation of powers concerns that Watson, supra, described are obviously present here. Moreover, this ability of a few individuals to curb further consideration of proposed regulations illustrates the very abuse of power that our country's forefathers sought to prevent by requiring a separation of the three branches of government.\\nIn the case of Byrne, the New Jersey Supreme Court reviewed a legislative veto statute which permitted \\\"the Legislature to veto by a concurrent resolution of both houses '[e]very rule hereafter proposed by a State agency,' with certain limited exceptions.\\\" 448 A.2d at 439. The court ruled that the statute violated the separation of powers principle\\nby excessively interfering with the functions of the executive branch. The Legislature's power to revoke at will portions of coherent regulatory schemes violates the separation of powers by impeding the Executive in its constitutional mandate to faithfully execute the law. The legislative veto further offends the separation of powers by allowing the Legislature to effectively amend or repeal existing laws without participation by the Governor.\\nId.\\nThe full impact of legislative veto was realized in Byrne:\\nEven where the Legislature is not using its veto power to effectively change the law, the veto can illegitimately interfere with executive attempts to enforce the law. The chief function of executive agencies is to implement statutes through the adoption of coherent regulatory schemes. The legislative veto undermines performance of that duty by allowing the Legislature to nullify virtually every existing and future scheme of regulation or any portion of it. The veto of selected parts of a coherent regulatory scheme not only negates what is overridden; it can also render the remainder of the statute irrational or contrary to the goals it seeks to accomplish____ Moreover, the Legislature need not explain its reasons for any veto decision. Its action therefore leaves the agency with no guidance on how to enforce the law.\\nBroad legislative veto power deters executive agencies in the performance of their constitutional duty to enforce existing laws. Its vice lies not only in its exercise but in its very existence. Faced with potential paralysis from repeated uses of the veto that disrupt coherent regulatory schemes, officials may retreat from the execution of their responsibilities. They will resort to compromises with legislative committees aimed at drafting rules that the current Legislature will find acceptable.\\nId. 448 A.2d at 443-44.\\nIn our case, the Legislature delegated a broad responsibility to the Executive branch for the purpose of establishing standards and enforcement mechanisms concerning personal care homes. After the Executive branch developed the regulations necessary to implement the comprehensive regulatory scheme, implementation was thwarted by legislative veto. The veto amounted to an intrusion into the Executive branch's ability to effectuate its mandated responsibilities. Accordingly, we determine that the legislative veto contained within the APA is unconstitutional based upon the same reasoning expressed in Barker and Byrne. West Virginia Code \\u00a7 29A-3-12(b) violates the separation of powers requirement of Article V, Section 1 of the Constitution of West Virginia in that the legislative veto created through such section impermissibly encroaches upon the executive branch's obligation to enforce the law.\\nEspecially troubling regarding the legislative veto which occurred in this case is the resulting noncompliance with a federal court order. It is significant to note that Respondents raise no substantive objections to implementing the proposed regulations. The eighty-nine pages of modified proposed regulations, as recognized by the Committee, are necessary to fully accomplish the objectives of the statute under which the proposed regulations were promulgated. Yet, because of the possible involvement of special interests and because of a statutory provision that permitted legislative veto through committee inaction, the long-overdue regulations regarding personal care homes have not been implemented and West Virginia remains out of compliance with federal law.\\nWhile it remains for the Legislature to draft a new provision for the APA regarding the approval or disapproval of administrative regulations, we observe that several states permit regulations to automatically go into effect if the Legislature fails to reject the proposed regulations within a specified number of days. See Conn.Gen.Stat.Ann. \\u00a7 4\\u2014 170(c) (West 1988) (providing that failure of joint legislative committee to act upon proposed regulations within sixty-five days after submission results in automatic approval); Ohio Rev.Code Ann. \\u00a7 119.03(1) (1994) (providing that rule-making agency may adopt proposed rule if legislature fails to invalidate proposed rule during sixty-day period following filing of original version of rule); Okla. StatAnn. tit. 75, \\u00a7 3081 (West 1995) (providing that automatic approval occurs if legislature fails to disapprove proposed rule within thirty legislative days); cf. Mich.Comp.Laws Ann. \\u00a7 24.245(10)(a) (West 1994) (stating that failure of joint legislative committee to approve of proposed administrative rule within sixty days requires approval by general assembly for implementation).\\nAt least two states have codified exceptions to compliance requirements for legislative approval of administrative regulations in certain circumstances. Ohio does not re quire that its administrative procedures be followed with regard to:\\nAny proposed rule, amendment, or rescission that must be adopted verbatim by an agency pursuant to federal law or rule, to become effective within sixty days of adoption, in order to continue the operation of a federally reimbursed program in this state, so long as the proposed rule contains . (a) A statement that it is proposed for the purpose of complying with a federal law or rule; (b) A citation to the federal law or rule that requires verbatim compliance.\\nOhio Rev.Code Ann. \\u00a7 119.03(H)(2). Similarly, Michigan has a special exemption for \\\"a rule that is promulgated under the Michigan occupational safety and health act, that is substantially similar to an existing federal standard that has been adopted or promulgated under the occupational safety and health act of 1970.\\\" Mich.Comp.Laws Ann. \\u00a7 24.245(13) (West 1994) (citations omitted).\\nThe Ohio statute, which provides for implementation of administrative regulations without adherence to typical approval procedures where compliance with federal law is at issue, illustrates a need for consideration of analogous legislation in this state. A statutory provision similar to that of Ohio might eliminate the procedural quagmire in which this state is now ensnared \\u2014 noncompliance with federal law due to unimplemented regulations, that were otherwise validly promulgated. While the Ohio statute's premise is tied to losing federal funds for noncompliance, the absence of lost federal funds does not negate the need for an alternate statutory method by which regulations necessary for compliance with federal and state mandates can be implemented.\\nAs we explained in Barker, we do not advocate the elimination of all legislative review of administrative rule-making:\\nLegislative rule-making review has purpose and merit and may be beneficially exercised and employed when contained within its proper and constitutional sphere . We do not question that some procedure for review of agency rules and regulations may well be warranted, but we must require that it be done within the limits of the separation of powers doctrine and according to the system of checks and balances in our governmental framework.\\n167 W.Va. at 175-76, 279 S.E.2d at 634-35 (footnote omitted).\\nBased on the foregoing, the writ of mandamus is granted insofar as we determine that the legislative veto scheme encompassed within West Virginia Code \\u00a7 29A-3-12(b) is unconstitutional. In Barker, we ordered the Secretary of State to file as approved and to place in force and effect the regulations at issue there. 167 W.Va. at 178, 279 S.E.2d at 636. We hesitate to order the filing of the regulations in the instant case without their having had legislative review, although we could do so. As a matter of comity to the Legislature, we decline to do so at this time in order to give the Legislature the opportunity in its next regular session to consider the regulations. Further, we direct the Legislature to promptly draft legislation to replace the unconstitutional section of article 29A and additionally, to consider passage of legislation that would exempt certain administrative regulations from conformance with APA implementation requirements, such as where compliance with federal law is mandated. Should the Legislature fail to exercise its proper prerogative to consider these reg ulations and to consider such recommended legislation, then this Court will be required to fill these legal voids.\\nWrit granted as molded.\\nBROTHERTON, J., did not participate.\\nJudge FOX sitting by temporary assignment,\\n. Both of these individuals are residents of the Kate Boone Personal Care Home in Oak Hill, West Virginia.\\n. Original jurisdiction is asserted under West Virginia Code \\u00a7 53-1-2 (1994) and pursuant to Article III, Section 3 of the state constitution.\\n. Also named as respondents to this action are Earl Ray Tomblin as President of the Senate and Robert C. Chambers as Speaker of the House of Delegates. They are named as parties pursuant to this Court's admonition in Common Cause of West Virginia v. Tomblin, 186 W.Va. 537, 539, 413 S.E.2d 358, 360 n. 2 (1991).\\n. The Secretary maintains that he was improperly joined as a party to this proceeding as the petition fails to aver that he did anything improper, illegal, or unconstitutional. Petitioners obviously included the Secretary as a party to this action with the hope that the Court would ultimately direct the Secretary to file the proposed regulations as approved in the state register. We concur with the Secretary's observation that his joinder was not required to effectuate any prospective filing of the regulations at issue, as he would be required by law to file any approved regulations. See W.Va.Code \\u00a7 29A-2-1 to -5 (1993).\\n. Personal care homes are defined by statute as:\\nany institution, residence or place, or any part or unit thereof, however named, in this state which is advertised, offered, maintained or operated hy the ownership or management, whether for a consideration or not, for the express or implied purpose of providing accommodations and personal assistance and supervision, for a period of more than twenty-four hours, to four or more persons who are dependent upon the services of others by reason of physical or mental impairment who may require limited and intermittent nursing care, including those individuals who qualify for and are receiving services coordinated by a licensed hospice____\\nW.Va.Code \\u00a7 16-5C-2(e).\\n. The Board of Health is now the Department of Health and Human Resources.\\n. The suit was also filed on behalf of all present or future residents of West Virginia residential board and care facilities and nursing homes. See Wolford ex rel. Mackey v. Lewis, 860 F.Supp. 1123, 1126 (S.D.W.Va. 1994).\\n. The Keys Amendment is an amendment to the Supplemental Security Income Program, 42 U.S.C. \\u00a7 1382e, which \\\"is designed to insure that Supplemental Security Income benefits are not used to pay for substandard living arrangements.\\\" Wolford, 860 F.Supp. at 1126.\\n. The district court order approving the plan was entered on October 4, 1994.\\n. Article V, section 1 provides:\\nThe legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the legislature.\\nW.Va. Const, art. V, \\u00a7 1.\\n. Petitioners also contend that the exercise of legislative veto in the context of an express legislative delegation pertaining to a comprehensive regulatory scheme is unconstitutional because it prevents compliance with substantive law and thereby interferes with execution of the law. Petitioners further posit that, even if legislative veto were constitutionally permissible in limited scenarios, it could never be exercised via legislative inaction and be consistent with legislative function as mandated by article VI, section 1 of the state constitution and could never be exercised without presentment to the governor as required by article VII, section 14 of the constitution. Because we find West Virginia Code \\u00a7 29A-3-12(b) to be unconstitutional on the original separation of powers argument raised by Petitioners, we do not address these alternate grounds.\\n. As noted in Consumer Energy Council of America v. Federal Energy Regulatory Comm'n, 673 F.2d 425 (1982), aff'd sub nom. Process Gas Consumers Group v. Consumer Energy Council, 463 U.S. 1216, 103 S.Ct. 3556, 77 L.Ed.2d 1402 (1983),\\nJustice Brand\\u00e9is' famous quotation still stands as the most concise statement of this objective: 'The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of inevitable friction incident to the distribution of governmental powers among the three departments, to save the people from autocracy.'\\n673 F.2d at 471 (quoting Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926)) (Brandeis, J., dissenting).\\n.In contrast, the United States Constitution does not contain an express separation of powers provision.\\n. See supra note 3.\\n. Petitioners' counsel notes that \\\"in the many . cases striking down legislative veto, such a contention of the breadth of permissible legislative authority has never been made,\\\"\\n. The version of West Virginia Code \\u00a7 29A-3-11 in effect at the time of Barker provided, in pertinent part, that the legislative rule-making committee \\\"shall study all proposed rules or regulations and . [w]ithin six months after the proposed rule or regulation is presented to the committee, the committee shall either approve, approve in part and disapprove in part, or disapprove the proposed rule or regulation____\\\"\\n. In response to the Barker decision, the Legislature amended West Virginia Code \\u00a7 29A-3-11 to delineate the review and recommendation functions of the Committee. Pursuant to subsection b of West Virginia Code \\u00a7 29A-3-11, the Committee's review of a proposed legislative rule\\nshall include, but not be limited to, a determination of: (1) Whether the agency has exceeded the scope of its statutory authority in approving the proposed legislative rule; (2) Whether the proposed legislative rule is in conformity with the legislative intent of the statute which the rule is intended to implement, extend, apply, interpret or make specific; (3) Whether the proposed legislative rule conflicts with any other provision of this code or with any other rule adopted by the same or a different agency; (4) Whether the proposed legislative rule is necessary to fully accomplish the objectives of the statute under which the rule was proposed for promulgation; (5) Whether the proposed legislative rule is reasonable, especially as it affects the convenience of the general public or of persons particularly affected by it; (6) Whether the proposed legislative rule could be made less complex or more readily understandable by the general public; and (7) Whether the proposed legislative rule was proposed for promulgation in compliance with the requirements of this article and with any requirements imposed by any other provision of this code.\\nSubsection c of West Virginia Code \\u00a7 12A-3-11 requires that\\n[ajfter reviewing the proposed legislative rule, the committee shall recommend that the Legislature: (1) Authorize the promulgation of the legislative rule, or (2) Authorize the promul gation of part of the legislative rule, or (3) Authorize the promulgation of the legislative rule with certain amendments, or (4) Recommend that the proposed rule be withdrawn.\\n. The court observed in Wolford that \\\"regulations governing personal care homes have not changed significantly in over twenty years____\\\" 860 F.Supp. at 1128.\\n. Under 42 U.S.C. \\u00a7 1382e(e)(4) (1988), the penalty for noncompliance with the Keys Amendment requires that supplemental security income '[p]ayments made under this subchapter with respect to any individual shall be reduced by an amount equal to the amount of any supplementary payment . (1) to such individual as a resident or an inpatient of such institution if such institution is not approved as meeting the standards____\\\" Id. Petitioners argue that the funds which stand to be lost are federal in nature, whereas the legislative Respondents maintain that the funds emanate from the state. We take no position on this issue.\\n. The approval of those regulations was a matter of some urgency, as they dealt with mine safety regulations.\"}"
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+"{\"id\": \"3840235\", \"name\": \"Michelle ISAACS, Plaintiff Below, Appellant v. Daniel P. BONNER, Defendant Below, Appellee\", \"name_abbreviation\": \"Isaacs v. Bonner\", \"decision_date\": \"2010-05-06\", \"docket_number\": \"No. 35284\", \"first_page\": \"460\", \"last_page\": \"467\", \"citations\": \"225 W. Va. 460\", \"volume\": \"225\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T22:00:15.358750+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Michelle ISAACS, Plaintiff Below, Appellant v. Daniel P. BONNER, Defendant Below, Appellee.\", \"head_matter\": \"694 S.E.2d 302\\nMichelle ISAACS, Plaintiff Below, Appellant v. Daniel P. BONNER, Defendant Below, Appellee.\\nNo. 35284.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted March 31, 2010.\\nDecided May 6, 2010.\\nAndrew C. Skinner, Esq., Stephen G. Skinner, Esq., Skinner Law Firm, Charles Town, WV, for the Appellant.\\nChristopher J. Prezioso, Esq., Luttrell & Prezioso, Martinsburg, WV, for the Appellee.\\nDarrell V. McGraw, Jr., Esq., Attorney General, Elizabeth G. Farber, Esq., Assistant Attorney General, Charleston, WV, for the West Virginia Division of Labor, Amicus Curiae.\\nLonnie C. Simmons, Esq., DiTrapano, Barrett & DiPiero, Charleston, WV, for the West Virginia Employment Lawyers Association, Amicus Curiae.\", \"word_count\": \"3952\", \"char_count\": \"24400\", \"text\": \"PER CURIAM:\\nThis wage payment and collection matter is before this Court upon the appeal of Michelle Isaacs, a dental hygienist, from the March 21, 2008, and July 31, 2008, orders of the Circuit Court of Berkeley County, West Virginia, awarding her former employer, Dr. Daniel P. Bonner, $35,504.12 in damages. The award was based upon the Circuit Court's determination, following a bench trial, that Isaacs filed and pursued a fraudulent administrative Request for Assistance against Dr. Bonner for unused, accrued paid vacation leave. The award consisted of $1,016.60 in compensatory damages, $5,000.00 in punitive damages, plus $29,487.52 in costs and attorney fees designated by the Circuit Court as additional punitive damages.\\nThis Court has before it appellant Isaacs' petition for appeal, Dr. Bonner's response, the entire record of the proceedings below and the briefs and argument of counsel. In addition, amicus curiae briefs have been filed in this Court by the West Virginia Division of Labor and the West Virginia Employment Lawyers Association.\\nUpon review, this Court is of the opinion that, under the unambiguous provisions of Dr. Bonner's paid leave policy concerning his employees, the claim filed and pursued by Isaacs was proper. Therefore, the filing and the pursuit of the Request for Assistance were not fraudulent as a matter of law. Moreover, Dr. Bonner settled the claim with appellant Isaacs, and the matter was closed by the Wage and Hour Section of the Division of Labor. Accordingly, the Circuit Court orders of March 21, 2008, and July 31, 2008, are reversed, and the $35,504.12 damage award is set aside.\\nFinally, relief upon Dr. Bonner's cross-appeal is denied, and each party shall bear his or her own costs and attorney fees with regard to this appeal and all proceedings below.\\nI.\\nFactual Background\\nThe appellant, Michelle Isaacs, a registered dental hygienist, worked for the appellee, Dr. Daniel P. Bonner, at his dental office in Inwood, West Virginia, from November 1, 2000, until she left voluntarily on July 14, 2004. The appellant typically worked a four-day work week, eight hours per day.\\nIn late 1979 or early 1980, Dr. Bonner established a written policy for his employees concerning paid vacation leave. The policy provided that there would be no paid leave for the first year of employment, one week of paid leave for the second and third years of employment and two weeks of paid leave for the fourth and subsequent years. The number of days in a week of paid leave was equal to the number of days that an employee was required to work each week. For each day of paid leave, an employee would receive eight hours of pay at the employee's regular rate of pay. For example, under the policy, an employee in the fourth year of employment would be entitled to two weeks of paid leave (a total of eight days, representing two work weeks) multiplied by eight hours per day. The product (sixty-four hours) would then be multiplied by the employee's regular rate of pay. The policy provided that active employees were required to take paid leave in full-day units.\\nThe policy was silent with regard to the accrual of paid vacation leave while on maternity leave. The appellant took two maternity leaves while employed by Dr. Bonner. The first maternity leave occurred early in the appellant's employment, and during that leave she was given a full week of paid leave. No paid leave, however, was given to the appellant as to her second maternity leave occurring in her last year of employment. Dr. Bonner testified that the allowance or accrual of paid vacation leave, in relation to maternity leave, was within his discretion. In awarding extra paid leave or giving bonuses to his staff, Dr. Bonner considered employee performance as well as financial need.\\nThe evidence of record indicates that Dr. Bonner's policy concerning paid vacation leave remained unchanged throughout the appellant's employment. In May 2004, the policy was incorporated in a comprehensive office manual or handbook. Subsequently, however, the manual was misplaced and has never been found. Consequently, the paid leave policy in effect during the appellant's employment with Dr. Bonner could not be produced during the proceedings below. The parties, however, agree that the language concerning paid leave pertaining to the appellant was preserved in a revised policy completed after the appellant's separation from employment. That language states:\\nWe encourage you to take your vacation in one-week blocks. (Vacation time may not be taken in blocks of less than one day.) Unused vacation days may not be carried over to subsequent years. Employees who leave our practice will be paid for unused vacation time accrued for their calendar year, which is calculated from each individual's date of hire.\\nIn addition to the manual, Dr. Bonner, in 2002, began using an accounting software program known as QuickBooks for payroll data. The program routinely produced a pay stub for each employee which included a line for \\\"used\\\" and \\\"available\\\" paid vacation leave. Dr. Bonner, however, did not use the QuickBooks program to track vacation leave. Instead, he kept vacation leave records by hand and, later, by means of a elock-in, clock-out system. As a result, the QuickBooks program printed zeroes on the line designated for \\\"used\\\" and \\\"available\\\" paid vacation leave. Beginning with the April 23, 2004, payroll, however, information concerning paid vacation leave inexplicably began appearing on the pay stubs of each employee. According to Dr. Bonner, everyone in the office, including the appellant, knew that the information on the pay stubs printed by the QuickBooks program was not accurate.\\nIn her fourth, and last, year of employment, the appellant worked for Dr. Bonner for eight months and fourteen days. During that time, the appellant took three days of paid leave. Nevertheless, when she separated from employment, the pay stub of her final paycheck indicated sixty-four hours of unused paid vacation leave (representing two weeks, or eight days, of accrued leave multiplied by eight hours per day). The final paycheck, however, did not include any payment for unused, accrued paid vacation leave.\\nII.\\nThe Wage and Hour Proceedings\\nIn an attempt to collect her unused vacation pay, appellant Isaacs filed a Request for Assistance form with the Wage and Hour Section of the Division of Labor. Indicating that Dr. Bonner had no written paid leave policy in existence, the appellant alleged that he failed to pay her $1,472 for unused paid leave (representing the sixty-four hours shown on the appellant's final pay stub multiplied by her regular rate of pay of $23 per hour).\\nUnder W.Va.Code, 21-5-1 (1987), of the Wage Payment and Collection Act, the term \\\"wages\\\" is defined as including \\\"fringe benefits\\\" which, in turn, includes vacation and personal leave and incentive bonuses. As W.Va.Code, 21-5-1 (c) (1987), states, in part: \\\"[T]he term 'wages' shall also include then accrued fringe benefits capable of calculation and payable directly to an employee: Provided, That nothing herein contained shall require fringe benefits to be calculated contrary to any agreement between an employer and his employees which does not contradict the provisions of this article.\\\" Syl. pt. 5, in part, Meadows v. Wal-Mart Stores, Inc., 207 W.Va. 203, 530 S.E.2d 676 (1999) (whether fringe benefits have accrued, are capable of calculation, and payable to an employee are determined by the terms of employment and not by the provisions of W.Va.Code, 21-5-1(e)).\\nThe appellant's Request for Assistance was assigned to Mary Beth McGowan, a compliance officer with the Wage and Hour Division. McGowan determined that Dr. Bonner owed the appellant forty hours of unused, accrued paid vacation leave for a total of $920 (representing the sixty-four hours, minus twenty-four hours for the three days of paid leave previously taken, multiplied by $23 per hour). By letter dated January 12, 2005, from the Director of the Wage and Hour Section, Dr. Bonner was notified that he owed the appellant $920.\\nIn a letter dated January 21, 2005, Dr. Bonner stated that the appellant, \\\"after calculations, is entitled, at the very most, to 4.20 hours in paid vacation.\\\" Dr. Bonner enclosed a cheek for $96.60 (representing 4.20 hours multiplied by $23 per hour). The letter quoted the following provision of Dr. Bonner's paid leave policy: \\\"Employees who leave our practice will be paid for unused vacation time accrued for their calendar year, which is calculated from each individual's date of hire.\\\" As the letter concluded: \\\"If [this] check does not close this case then I request a hearing.\\\" Soon after, a subpoena duces tecum from the Division of Labor was issued requesting records from Dr. Bonner covering the appellant's entire period of employment. In response, Dr. Bonner submitted a cheek in the amount of $920 to conclude the settlement of the claim, and the Wage and Hour Section considered the matter closed.\\nDr. Bonner contends that he voluntarily settled the dispute concerning the appellant's accrued leave upon assurances by the Wage and Hour Section that the case would be completely resolved. Appellant Isaacs, how ever, maintains that the settlement did not resolve the question of liquidated damages.\\nIII.\\nThe Circuit Court Proceedings\\nOn March 4, 2005, the appellant filed a pro se complaint in the Magistrate Court of Berkeley County, for liquidated damages. The appellant cited W.Va.Code, 21-5-4(e) (1975), which provides, in part:\\nIf a person, firm or corporation fails to pay an employee wages as required under this section, such person, firm or corporation shall, in addition to the amount due, be liable to the employee for liquidated damages in the amount of wages at his regular rate for each day the employer is in default, until he is paid in full, without rendering any service therefor: Provided, however, That he shall cease to draw such wages thirty days after such default.\\nDr. Bonner filed an answer contending the matter was settled by the payment and acceptance of $1,016.60 (representing the $96.60 and the $920 checks). In addition, he filed a counterclaim denying any liability to the appellant and alleging that, through the Request for Assistance, the appellant \\\"falsely and fraudulently\\\" claimed that he failed to pay her for unused paid vacation leave. Dr. Bonner's counterclaim sought $5,000 in compensatory damages, plus punitive damages. Appellant Isaacs obtained counsel, both sides sought attorney fees, and the case was removed to the Circuit Court of Berkeley County. See, W.Va.Code, 50-4-8 (1978) (providing for removal to circuit court).\\nThe Circuit Court conducted a bench trial in 2007 followed by an order entered on March 21, 2008, dismissing the appellant's suit for liquidated damages and holding in favor of Dr. Bonner on his counterclaim. Finding the appellant's filing for, and pursuit of, unused paid leave to be fraudulent, the Circuit Court awarded Dr. Bonner compensatory damages in the amount of $1,016.60 (representing the $96.60 and $920 previously paid) and punitive damages in the amount of $5,000.00. The Circuit Court also ruled that Dr. Bonner's request for costs and legal fees would be addressed in a subsequent proceeding. The March 21, 2008, order stated:\\nBecause the Plaintiff was not owed for any unused, accrued days of paid leave at the time of her departure from the Defendant's employ, the Defendant did not owe her any payment for leave in her last paycheck. [T]he Defendant also does not owe her the liquidated damages that the Plaintiff seeks in this civil action. The Court concludes that the Plaintiff took a pay stub record she knew to be erroneous and used it to extract money from the Defendant that she knew he did not owe her. The evidence is clear and convincing that Plaintiff knowingly made a false claim by which she successfully obtained a payment from Defendant that was not owed.\\nIn June 2008, the Circuit Court conducted a post-trial hearing concerning Dr. Bonner's request for reasonable costs and attorney fees, and on July 31, 2008, the Circuit Court awarded him $29,487.52. The $29,487.52 award was in addition to the compensatory and punitive awards granted in the order of March 21, 2008. As the Circuit Court stated:\\nBecause the Court concludes that the Defendant's prayer for attorney fees should be considered pursuant to its finding of fraudulent conduct, the award sought must be considered pursuant to the prevailing principles governing awards of punitive damages[.] Had the Court considered fees and costs in the initial award, the punitive damages would have been considerably higher, but the Court consciously kept them low so as to accommodate the post-trial proceedings anticipated.\\nAppellant Isaacs' appeal to this Court was granted on October 28, 2009.\\nIV.\\nDiscussion\\nThe general standard of review concerning a bench trial conducted by a circuit court is set forth in syllabus point 1 of Public Citizen, Inc. v. First National Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996), as follows:\\nIn reviewing challenges to the findings and conclusions of the circuit court made after a bench trial, a two-pronged deferential standard of review is applied. The final order and the ultimate disposition are reviewed under an abuse of discretion standard, and the circuit court's underlying factual findings are reviewed under a clearly erroneous standard. Questions of law are subject to a de novo review.\\nSyl. pt. 2, Timberline Four Seasons Resort Management Co. v. Herlan, 223 W.Va. 730, 679 S.E.2d 329 (2009). See, Rule 52 of the West Virginia Rules of Civil Procedure concerning trials without a jury.\\nThe matter now contested may be resolved by looking at the language of Dr. Bonner's paid leave policy. On the one hand, the policy states that vacation time for active employees \\\"may not be taken in blocks of less than one day.\\\" (Emphasis added.) On the other hand, the policy states that, upon separation from employment, employees \\\"will be paid for unused vacation time accrued for the calendar year, which is calculated from each individual's date of hire.\\\" (Emphasis added.) According to Dr. Bonner and the Circuit Court, inasmuch as paid vacation could only be taken or compensated for in blocks of one day, appellant Isaacs was not owed for any accrued hours, equaling less than one day, at the time of her departure on July 14, 2004. In other words, if time could not be exercised as paid leave, then it is not compensable when an employee separates from employment. Appellant Isaacs contends, however, that where the policy specifies time, it means any amount of time, and, under the policy, paid vacation leave was earned in units of time, not in units of days. Moreover, the appellant emphasizes the testimony of Dr. Bonner who stated that the requirement of taking paid leave in full-day increments helped eliminate scheduling problems concerning the office and staff. Consequently, according to the appellant, such a requirement would not be relevant to an employee who leaves the practice permanently-\\nWhether a contract is ambiguous, or how a contract should be interpreted, involves a question of law to be determined by the court. Berkeley County Public Service District v. Vitro Corporation of America, 152 W.Va. 252, 267, 162 S.E.2d 189, 200 (1968) (The question as to whether a contract is ambiguous is a question of law to be determined by the court.); Wood v. Acordia, 217 W.Va. 406, 411, 618 S.E.2d 415, 420 (2005) (interpretation of contract language is a question of law). In the area of employment law, syllabus point 6 of Meadows v. Wal-Mart Stores, Inc., supra, holds: \\\"Terms of employment concerning the payment of unused fringe benefits to employees must be express and specific so that employees understand the amount of unused fringe benefit pay, if any, owed to them upon separation from employment. Accordingly, this Court will construe any ambiguity in the terms of employment in favor of employees.\\\" Syl. pts. 1 and 2, Lipscomb v. Tucker County Commission, 206 W.Va. 627, 527 S.E.2d 171 (1999).\\nIn the case to be determined, this Court concludes that the paid leave policy was unambiguous. The provision of the policy requiring the taking of vacation by the day and the provision for payment, upon complete separation from employment, for unused vacation time accrued are not inconsistent. As the policy made clear: \\\"Employees who leave our practice will be paid for unused vacation time accrued for their calendar year, which is calculated from each individual's date of hire.\\\" As Dr. Bonner himself stated in the January 21, 2005, letter to the Division of Labor, appellant Isaacs, \\\"after calculations, is entitled, at the very most, to 4.20 hours in paid vacation\\\" i.e., less than a day. Consequently, the ruling of the Circuit Court, that the appellant could only be compensated for unused full-days of accrued leave, had the effect of depriving the appellant of accrued vacation time that even Dr. Bonner acknowledged she had earned. Nothing in the paid leave policy suggested that an employee was required to simply forego compensation for any accrued leave that was less than a day.\\nSyllabus point 1 of Cotiga Development Company v. United Fuel Gas Company, 147 W.Va. 484, 128 S.E.2d 626 (1962), stands for the principle that a valid, unambiguous written instrument is not subject to judicial construction or interpretation \\\"but will be applied and enforced\\\" according to the intent of the parties. Moreover, syllabus point 3 of Cotiga holds that \\\"[i]t is not the right or province of a court to alter, pervert or destroy the clear meaning and intent of the parties as expressed in unambiguous language in their written contract or to make a new or different contract for them.\\\" Syl. pt. 3, Heitz v. Clovis, 213 W.Va. 197, 578 S.E.2d 391 (2003).\\nIn this matter, the Circuit Court committed error in altering the plain terms of the paid leave policy by overlooking the provision that departing employees were entitled to be paid for unused, accrued leave in units of time, rather than in units of days.\\nAnother aspect of the case overlooked by the Circuit Court was the inaccurate manner of keeping records of accrued leave for Dr. Bonner's staff. Dr. Bonner initially kept paid leave records by hand and, later, by means of a clock-in, clock-out system. At the same time, the QuickBooks software program printed incorrect information concerning paid leave on the employees' pay stubs. In some instances, the pay stubs indicated zeroes for available paid leave, and in other instances, the pay stubs showed sixty-four hours of available paid leave (representing two weeks, or eight days, of accrued leave multiplied by eight hours per day). The appearance on the pay stubs of sixty-four hours, beginning in April 2004, rather than the previous zeroes, was inexplicable. The resulting confusion is not surprising: (1) Dr. Bonner stated that, \\\"at the very most,\\\" he owed appellant Isaacs 4.20 hours, (2) the appellant stated that she was owed sixty-four hours, and (3) the Wage and Payment Section of the Division of Labor stated that the appellant was owed forty hours.\\nThe language of Meadows v. WalMart Stores, Inc., set forth above, is compelling: \\\"Terms of employment concerning the payment of unused fringe benefits to employees must be express and specific so that employees understand the amount of unused fringe benefit pay, if any, owed to them upon separation from employment.\\\" That language, of course, is a restatement of principles expressed in the legislative and regulatory mandates concerning the Wage Payment and Collection Act. As W.Va.Code, 21-5-9(3) (1975), provides: \\\"Evei'y person, firm and corporation shall: . (3) Make available to his employees in writing or through a posted notice maintained in a place accessible to his employees, employment pr-actices and policies with regard to vacation pay, sick leave, and comparable matters.\\\" Furthermore, \\u00a7 42-5-4.2 of the Code of State Regulations concerning the Wage Payment and Collection Act states that \\\"[t]he written record or records with respect to each and every employee shall contain . (g) Hours worked each workday and total hours worked each workweek; [and the] (h) Method of calculating the percent of fringe benefits owed to an employee at any given time.\\\" In addition, \\u00a7 42-5-14.1 and 14.2 provide, in part, that \\\"[a]ll employers shall at the time of hire notify their employees . [of the] method of computing fringe benefits[,] . [and the] employer shall furnish to each employee an itemized statement of wages[.]\\\"\\nAlthough the paid leave policy was unambiguous concerning appellant Isaacs' right, upon leaving the practice, to be paid in units of time for her unused, accrued paid leave, Dr. Bonner failed, throughout the period of the appellant's employment, to comply with the requirements of the Wage and Hour Act for providing accurate information concerning fringe benefits to his employees. The appellant was entitled to an accurate pay stub.\\ny.\\nConclusion\\nUnder the unambiguous provisions of the paid leave policy pertaining to Dr. Bon ner's staff, the administrative claim filed and pursued by appellant Isaacs was not fraudulent. Appellant Isaacs, the Wage and Hour Section and Dr. Bonner agreed that the appellant was entitled to some amount of accrued leave. The hours appellant Isaacs submitted through the Request for Assistance were the subject of a legitimate dispute. The dispute was precipitated by Dr. Bonner's poor record-keeping practices. The orders of March 21, 2008, and July 31, 2008, are, therefore, reversed, and the $35,504.12 award, consisting of compensatory and punitive damages, is set aside, and judgment is awarded to appellant Isaacs on the counterclaim of Dr. Bonner.\\nAs the record clearly shows, while this matter was pending before the Wage and Hour Section of the Division of Labor, Dr. Bonner responded by paying $1,016.60 for the unused, accrued vacation leave as a complete settlement of the appellant's claim. This Court reinstates the settlement and dismisses the appellant's complaint for liquidated damages.\\nEach party shall bear his or her own costs and attorney fees with regard to this appeal and all proceedings below. See, W.Va.Code, 21 \\u2014 5\\u201412(b) (1975), and syl. pt. 3, Farley v. Zapata Coal Corporation, 167 W.Va. 630, 281 S.E.2d 238 (1981), (indicating that attorney fees may be awarded but are not mandatory), and syl. pt. 2, Sally-Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986) (\\\"As a general rale each litigant bears his or her own attorney fees absent a contrary rule of court or express statutory or contractual authority for reimbursement.\\\").\\nReversed.\\n. The West Virginia Wage Payment and Collection Act, W.Va.Code, 21-5-1 (1987), et seq., is enforced through \\u00a7 42-5-1 (1990), et seq., and \\u00a7 42-20-1 (1992), et seq., of the Code of State Regulations, as well as enforced through the State Administrative Procedures Act, W.Va.Code, 29A-1-1 (1982), etseq.\\n. In 2006, the West Virginia Legislature amended the statute to provide for treble damages. As W.Va.Code, 21-5-4(e), currently provides in part: \\\"If a person, firm or corporation fails to pay an employee wages as required under this section. such person, firm or corporation shall, in addition to the amount which was unpaid when due, be liable to the employee for three times that unpaid amount as liquidated damages.\\\"\\n. Dr. Bonner's cross-appeal concerning the Circuit Court's characterization of his award of atlorney fees as an element of punitive damages is denied.\"}"
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+"{\"id\": \"3841024\", \"name\": \"Vernon THOMPSON, Plaintiff Below, Appellee v. Robert HATFIELD, Defendant Below, Appellant\", \"name_abbreviation\": \"Thompson v. Hatfield\", \"decision_date\": \"2010-04-16\", \"docket_number\": \"No. 35128\", \"first_page\": \"405\", \"last_page\": \"408\", \"citations\": \"225 W. Va. 405\", \"volume\": \"225\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T22:00:15.358750+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Vernon THOMPSON, Plaintiff Below, Appellee v. Robert HATFIELD, Defendant Below, Appellant.\", \"head_matter\": \"693 S.E.2d 479\\nVernon THOMPSON, Plaintiff Below, Appellee v. Robert HATFIELD, Defendant Below, Appellant.\\nNo. 35128.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted March 2, 2010.\\nDecided April 16, 2010.\\nJason A Poling, Esq., Waters Law Group, PLLC, Huntington, WV, for Appellant.\\nJames E. Spurlock, Esq., Spurlock Law Office, Huntington, WV, for Appellee.\", \"word_count\": \"1839\", \"char_count\": \"11334\", \"text\": \"PER CURIAM:\\nThe appellant and defendant below, Robert Hatfield, appeals a final order of the Circuit Court of Cabell County entered on December 29, 2008, in this partition suit filed by the appellee and plaintiff below, Vernon Thompson. The circuit court ruled that Mr. Thompson has a two-sevenths interest in the subject property and that the remaining five-sevenths interest is owned by Mr. Hatfield. The circuit court also ordered that Mr. Thompson be afforded a right-of-way by necessity to access his two-sevenths interest in the real estate. Finally, the circuit court ordered that the property be surveyed and that the parties split the costs of the survey and establishment of the right-of-way in proportion to their respective interests.\\nIn this appeal, Mr. Hatfield maintains that he owns the entire parcel of land in fee simple. He contends that the circuit court's order fails to set forth sufficient factual findings to permit meaningful appellant review; that he was entitled to have his adverse possession claim considered by a jury; and that genuine issues of material fact exist concerning who has an interest in the property. Assuming, arguendo, that the circuit court did not err in dividing the real estate, Mr. Hatfield contends that the court erred by summarily determining that the real estate should be surveyed and divided with the costs split by the parties in accordance with their respective interests, and further, that the court erred by determining that Mr. Thompson has a right-of-way by necessity and that the costs associated with the establishment of said righbof-way should also be split by the parties in accordance with their respective interests.\\nThis Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the final order is reversed, and this case is remanded for the circuit court to include in its final order the legal and factual basis for its decision.\\nI.\\nFACTS\\nThe property at issue in this case consists of approximately forty-two acres and is located on the waters of Madison Creek in Cabell County, West Virginia. According to Mr. Hatfield, he and his brother, Johnny C. Hatfield, obtained interests in the subject real estate from their father, Odie Hatfield, by separate deeds dated October 23, 1969. On July 18, 1973, Mr. Hatfield purchased his brother's interest in the property. Mr. Hab field claims that he began exercising acts of possessing the property on October 23, 1969, including upkeep of the buildings, mowing the fields, and maintaining the roads. Mr. Hatfield began residing on the property in 1972. He constructed a cabin on the property in the early 1980's.\\nMr. Hatfield states that on three occasions, third parties have completed title examinations and concluded that he possesses record title to the subject real estate. Two of the examinations were completed when he used the property as collateral to obtain a loan. The third instance involved him leasing the minerals on the property. Mr. Hatfield says that he posted the land in 1988 and has controlled access to the land since 1969, only permitting certain relatives, neighbors, and friends to use the property for various activities.\\nIn contrast, Mr. Thompson claims that he inherited a two-sevenths interest in the property. According to Mr. Thompson, the subject property was initially acquired by Thomas Hatfield by two separate deeds: one deed conveying thirty acres in 1891 and a second deed conveying twelve acres in 1905. Thomas Hatfield and his wife both died intestate leaving the property to their seven children: Herbert, Ben, Shem, Odie, Edith, Ethel, and Lillie. Each child had a one-seventh interest in the property. Thereafter, Odie purchased the interests of Ben, Shem, and Lillie, giving him a total interest of four-sevenths. Herbert purchased Ethel's interest from her only child and sole heir. Herbert then left his entire estate including his two-sevenths interest in the subject property to his wife, Hazel. She left the two-sevenths interest in the property by will to her son, Mr. Thompson.\\nMr. Thompson claims that the remaining one-seventh interest owned by Edith Hatfield Vance was passed on to her six children. Mr. Thompson does not claim any part of this one-seventh interest. Notice of this partition suit was given to the Vance children and some of them have apparently ceded their interest to Robert Hatfield.\\nMr. Thompson filed his complaint on October 25, 2004, seeking to have the land partitioned. A lengthy discovery period followed. On January 5, 2006, Mr. Thompson filed a motion for summary judgment; however, discovery continued. Finally, following a status conference on October 11, 2007, the circuit court entered an order directing the parties to submit memoranda setting forth their respective positions. Thereafter, the final order was entered. This appeal followed.\\nII.\\nSTANDARD OF REVIEW\\n[1] In ascertaining our standard of review, the content of the final order must be considered. Although the order states that \\\"this Court hereby denies Plaintiffs Motion for Summary Judgment and Denies Defendant's Motion for Summary Judgment,\\\" the order, nonetheless, grants relief to Mr. Thompson and dismisses the ease from the circuit court's active docket. A review of the record shows that no evidentiary hearing was held below, and the only motion pending before the court was Mr. Thompson's motion for summary judgment. This Court has explained that '\\\"we are not bound by the label employed below, and we will treat the [matter] as one made pursuant to' the most appropriate rule.\\\" Kopelman and Associates, L.C. v. Collins, 196 W.Va. 489, 494 n. 6, 473 S.E.2d 910, 915 n. 6 (1996) (quoting Murphy v. Smallridge, 196 W.Va. 35, 36 n. 4, 468 S.E.2d 167, 168 n. 4 (1996)). Accordingly, the final order in this case will be treated as a grant of summary judgment.\\nHaving determined that the final order grants summary judgment, we note that our standard of review is de novo. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).\\nIII.\\nDISCUSSION\\nAs set forth above, Mr. Hatfield has asserted several assignments of error; however, the only issue that is necessary for this Court to address is his contention that the circuit court's order contains insufficient findings of fact and conclusions of law to permit meaningful appellate review. The December 29, 2008, final order entered by the circuit court consists of one and one-half pages and sets forth the manner in which the property is to be divided and the costs of the survey and right-of-way split by the parties. The order merely states that the decision is based \\\"upon review of the pleadings filed herein and hearing the arguments of counsel.\\\" There are no findings of fact and no conclusions of law. The order is simply devoid of any legal authority for the circuit court's decision.\\nIn Syllabus Point 3 of Fayette County National Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997), this Court held:\\nAlthough our standard of review for summary judgment remains de novo, a circuit court's order granting summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which the circuit court finds relevant, determinative of the issues and undisputed.\\nIn Lilly, it was explained that \\\"[tjhis Court's function, as a reviewing court is to determine whether the stated reasons for the granting of summary judgment by the lower court are supported by the record.\\\" 199 W.Va. at 353, 484 S.E.2d at 236. Obviously, \\\"[tjhis Court cannot perform its function unless the circuit court's order contains both the factual and legal basis for its ultimate conclusion.\\\" Nestor v. Bruce Hardwood Flooring, L.P., 206 W.Va. 453, 456, 525 S.E.2d 334, 337 (1999). See also Ayersman v. West Virginia Div. of Environmental Protection, 208 W.Va. 544, 546, 542 S.E.2d 58, 60 (2000) (\\\"[A] summary judgment order must set forth findings substantial enough to allow this Court to make an informed judgment on the propriety of the lower court's actions.\\\").\\nThe circuit court's final order in this case clearly does not comply with this Court's holding in Lilly. The order is completely silent with regard to the basis for the circuit court's decision. Accordingly, we find that the circuit court committed reversible error by granting summary judgment without including findings of fact and conclusions of law sufficient for meaningful review by this Court.\\nIV.\\nCONCLUSION\\nFor the reasons set forth above, the final order of the Circuit Court of Cabell County entered on December 29, 2008, is reversed, and this ease is remanded for the circuit court to include in its final order the factual and legal basis for its decision.\\nReversed and remanded.\\n. As previously noted, Odie was Mr. Hatfield's father.\\n. Mr. Hatfield never filed a written motion for summary judgment but his counsel has indicated that he may have orally moved for summary judgment during a hearing. While the final order references a summary judgment hearing held on September 19, 2006, there is no transcript in the record.\\n. The entire text of the order is as follows:\\nOn the 19th day of September 2006, came the Plaintiff, Vernon Thompson, by and through counsel, James E. Spurlock and the Defendant, Robert Hatfield, by and through counsel, Jason A. Poling for a hearing on Plaintiff's Motion for Summary Judgment and Defendant's Motion for Summary Judgment. Upon review of the pleadings filed herein and hearing the arguments of counsel, this Court hereby Denies Plaintiff's Motion for Summary Judgment and Denies Defendant's Motion for Summary Judgment. This Court finds that the subject property shall be divided as follows: a 2/7 interest to Vernon Thompson; and a 5/7 interest to Robert Hatfield. This Court further finds that Mr. Thompson shall be granted a right of way by necessity to access his two-sevenths interest in the subject property. Finally the Court finds that the parties shall split the costs of surveys and road improvement in proportion to each parties' respective interest in the subject property (Mr. Thompson shall be responsible for 2/7 of the costs and Mr. Hatfield shall be responsible for 5/7 of the costs). The Court Orders and directs that each party is responsible for their own attorneys fees and costs in this matter. As all matters are now resolved in this Action, this Court hereby Orders that this matter is dismissed from its active docket.\\nWHEREFORE, this Court hereby ORDERS that Plaintiff's Motion for Summary Judgment and Defendant's Motion for Summary Judgment are DENIED and this matter is DISMISSED from the Court's active docket.\\nThe parties' objections and exceptions to this ruling are noted and preserved.\\n(Emphasis in original).\\n. In the final order, the circuit court attributed the one-seventh interest allegedly owned by the Vance children to Mr. Hatfield.\"}"
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+"{\"id\": \"3843075\", \"name\": \"STATE of West Virginia ex rel. Jay M. POTTER, Petitioner, v. OFFICE OF DISCIPLINARY COUNSEL OF the STATE of West Virginia, Respondent\", \"name_abbreviation\": \"State ex rel. Potter v. Office of Disciplinary Counsel\", \"decision_date\": \"2010-04-01\", \"docket_number\": \"No. 35337\", \"first_page\": \"1\", \"last_page\": \"6\", \"citations\": \"226 W. Va. 1\", \"volume\": \"226\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T00:58:46.298535+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of West Virginia ex rel. Jay M. POTTER, Petitioner, v. OFFICE OF DISCIPLINARY COUNSEL OF the STATE of West Virginia, Respondent.\", \"head_matter\": \"697 S.E.2d 37\\nSTATE of West Virginia ex rel. Jay M. POTTER, Petitioner, v. OFFICE OF DISCIPLINARY COUNSEL OF the STATE of West Virginia, Respondent.\\nNo. 35337.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted Feb. 10, 2010.\\nDecided April 1, 2010.\\nJay M. Potter, Pro se, Petitioner.\\nRachael L. Fletcher Cipoletti, Office of Disciplinary Counsel, for the Respondent.\", \"word_count\": \"3170\", \"char_count\": \"19819\", \"text\": \"PER CURIAM:\\nThis is an original proceeding in mandamus filed by Jay M. Potter (\\\"Petitioner\\\"), against the Office of Disciplinary Counsel (\\\"Respondent\\\"). Petitioner seeks an order from this court directing that Respondent remove from its files two copies of a compact disc (\\\"CD\\\") and two copies of the transcript thereof, which were obtained by Respondent in connection with an ethics complaint filed by Petitioner against his estranged wife, a lawyer practicing in the State of West Virginia. As discussed in more detail below, Petitioner avers that the CDs and transcripts are the products of a cassette tape which recorded a personal and private communication between Petitioner and a third party and which, Petitioner argues, are not relevant to the ethics complaint he filed against his estranged wife.\\nThis Court issued a rule to show cause and, upon careful consideration of the parties' written and oral arguments and the relevant law, concludes that relief in mandamus is not warranted and is, therefore, denied.\\nI. Factual and Procedural Background\\nFor the most part, the relevant facts which precipitated the present petition are undisputed.\\nA.\\nOn or about May 4, 2006, Petitioner filed an ethics complaint with the Lawyer Disciplinary Board (\\\"LDB\\\") against his estranged wife, Maria Marino Potter, a lawyer. The parties were in the midst of divorce proceedings. According to the ethics complaint, two years earlier, on May 4, 2004, Ms. Potter appeared at the law firm where Petitioner, who is also a lawyer, is employed. Petitioner alleged that although Ms. Potter knew he was out of town and would not be in the office that day, she went into Petitioner's office and rifled through unmarked boxes, some of which contained confidential client information. Ultimately, Ms. Potter removed only items that were personal to Peti tioner. Ms. Potter later returned the items to Petitioner after he contacted her and demanded that she return them.\\nTwo years later, on May 4, 2006, Petitioner filed with the LDB an ethics complaint against her pursuant to Rule 8.3 of the Rules of Professional Conduct.\\nPursuant to Rule 2.5 of the Rules of Lawyer Disciplinary Procedure, Ms. Potter filed a verified response to the complaint which included two copies of a CD and two copies of the transcript thereof produced from a cassette tape recording of a personal communication between Petitioner and a third party. According to Respondent, Ms. Potter filed the CDs and transcripts as part of her defense to the ethics complaint. More specifically, according to Ms. Potter, they supported her theory that Petitioner filed the complaint because he was angry with her over events related to their divorce and unrelated to the fact that Ms. Potter took personal items from Petitioner's office two years earlier. Thus, Respondent argues, Ms. Potter believed the CDs and transcripts to be relevant to her defense.\\nFollowing an investigation into the ethics complaint, the Investigative Panel of the Lawyer Disciplinary Board ordered the complaint closed. Accordingly, no formal charges were filed against Ms. Potter.\\nB.\\nOn or about February 11, 2008, Petitioner filed a second ethics complaint against Ms. Potter and also filed a complaint against the lawyer representing her in the parties' divorce. The allegations in both complaints related primarily to the CDs and transcripts which are the subject of the present petition before this Court. Petitioner alleged, inter alia, that while Petitioner, Ms. Potter and their respective lawyers were at the marital residence for a scheduled personal property appraisal, Ms. Potter snuck into Petitioner's car and took from it the cassette tape described above. For her part, Ms. Potter claimed that Petitioner inadvertently left the tape at the marital home. In any event, it is undisputed that Ms. Potter proceeded to have the tape transcribed and copied onto CD.\\nBy letters dated February 21, 2008, Respondent advised Petitioner that the ethics complaints he filed against Ms. Potter and her lawyer do not constitute violations of the Rules of Professional Conduct and the matters were closed without further action.\\nC.\\nOn or about May 18, 2009, Petitioner learned that Ms. Potter had previously filed copies of the CD and transcript with Respondent in support of her defense to the first ethics complaint filed by Petitioner in May 2006. By letters to Respondent dated July 22, 2009, and August 17, 2009, Petitioner requested, inter alia, that the CDs and transcripts be removed from Respondent's files. The Investigative Panel denied Petitioner's request and, by letter of September 29, 2009, advised Petitioner that \\\"disciplinary files in the possession of the Office of Disciplinary Counsel are confidential. Therefore, the written response and evidence previously submitted by Ms. Potter in response to the complaints remain sealed.\\\"\\nOn October 30, 2009, Petitioner filed with this Court a petition for writ of prohibition, which, as indicated above, this Court considers as a petition for writ of mandamus. See n. 1, supra. Petitioner seeks an order requiring Respondent to remove the CDs and transcripts from its files. Petitioner further requests that they be destroyed or given to him. By order entered November 24, 2009, this Court awarded a rule to show cause and oral argument was conducted on February 10, 2010.\\nII. Standard of Review\\nThis Court's original jurisdiction in mandamus proceedings derives from Art. VIII, \\u00a7 3, of The Constitution of West Virginia. Its jurisdiction is also recognized in Rule 14 of the West Virginia Rules of Appellate Procedure and W.Va.Code \\u00a7 53-1-2 (1933). The purpose of mandamus is to enforce \\\"an established right\\\" and a \\\"corresponding imperative duty created or imposed by law.\\\" State ex rel. Ball v. Cummings, 208 W.Va. 393, 398, 540 S.E.2d 917, 922 (1999). It \\\" 'is a proper remedy to require the performance of a nondiscretionary duty by various governmental agencies or bodies.'\\\" Id. Moreover, \\\" '[mjandamus lies to control the action of an administrative officer in his discretion when such action is arbitrary or capricious.' \\\" Vieweg, 205 W.Va. at 693, 520 S.E.2d at 860.\\nFinally, we held in syllabus point 1 of State ex rel. East End Ass'n. v. McCoy, 198 W.Va. 458, 481 S.E.2d 764 (1996), that\\n\\\" ' \\\" '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 respondent to do the thing the petitioner seeks to compel; (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).\\\" Syl. pt. 1, Meadows v. Lewis, 172 W.Va. 457, 307 S.E.2d 625 (1983).' Syl. pt. 2, State ex rel. Blankenship v. Richardson, 196 W.Va. 726, 474 S.E.2d 906 (1996).\\\"\\nAs we shall explain below, Petitioner has failed to satisfy that he has either a clear right to the relief sought or that Respondent has a legal duty to perform that which Petitioner seeks. Accordingly, a writ of mandamus will not issue.\\nIII. Discussion\\nThe duties, responsibilities and overall authority of Respondent were established by this Court and are set forth in the Rules of Lawyer Disciplinary Procedure. Among other things, Respondent is charged with the investigation, prosecution and administration of ethics complaints. See Rules 4, 4.4 and 4.6 of the Rules of Lawyer Disciplinary Procedure. In the instant matter, Respondent represents, and Petitioner does not dispute, that Respondent thoroughly complied with the Rules of Lawyer Disciplinary Procedure (\\\"Rules\\\") upon the filing of the ethics complaint by Petitioner against Ms. Potter in May 2006.\\nAccording to Respondent, it evaluated and investigated the complaint pursuant to Rule 2.4(a). Pursuant to Rule 2.5, Respondent notified Ms. Potter of the nature of the complaint and directed that she file a verified response by a certain date.\\nThereafter, Respondent reported the matter to the Investigative Panel at its May 12, 2007, meeting, pursuant to Rule 2.4(b)(2). As required by Rule 2.8(a), following an investigation, Respondent reported its findings to the Investigative Panel. The Investigative Panel determined there was no probable cause and issued its Lawyer Disciplinary Board Investigative Panel Closing report, on May 15, 2007, pursuant to Rule 2.9(b). The report and a copy of the initial complaint were placed in Ms. Potter's public file, pursuant to both Rule 2.9(b) and syllabus point 6 of Daily Gazette Co., Inc. v. Committee on Legal Ethics, 174 W.Va. 359, 360, 326 S.E.2d 705, 706 (1984), which held that \\\"[o]nce a complaint of unethical conduct in an attorney disciplinary proceeding is dismissed for lack of probable cause, the public has a right of access to the complaint and the findings of fact and conclusions of law which are presented in support of such dismissal.\\\"\\nRespondent further represents, and Petitioner does not dispute, that the remainder of Ms. Potter's complaint file, including the CDs and transcripts, was filed and secured in Respondent's closed file room. As required by Rule 2.6, the details of the investigation into the complaint conducted by Respondent (including the CDs and transcripts) were, and have remained, confidential.\\nAdditionally, Respondent is charged with preserving the records relating to ethics complaints filed with the LDB. Specifically, Rule 4.4(10) authorizes Respondent to \\\"maintain permanent records of discipline and disability matters[.]\\\"\\nThe relief Petitioner seeks is the removal of the CDs and transcripts from Ms. Potter's closed file. He further requests that they be destroyed or given to him. Petitioner argues they consist of a \\\"personal and private\\\" communication to a third party and as such, are not relevant to the ethics complaint he filed against Ms. Potter. In contrast, Respondent contends that Ms. Potter filed the CDs and transcripts with the LDB because she believed they supported her position that Petitioner did not file the complaint in good faith or for a legitimate purpose, but in retaliation over events related to the parties' divorce. In Ms. Potter's view, Petitioner's own words on the CDs and transcripts were proof of his impure motives.\\nThe CDs and transcripts are a part of the permanent record relating to the ethics complaint filed against Ms. Potter by Petitioner. The Rules do not authorize Respondent to remove any portion of the records relating to disciplinary matters. Indeed, Respondent may not exercise authority other than that which is conferred upon it by the Rules of Lawyer Disciplinary Procedure as promulgated by this Court. See Syl. pt. 2, in part, Coll v. Cline, 202 W.Va. 599, 505 S.E.2d 662 (1998) (\\\"Administrative agencies and their executive officers are creatures of statute and delegates of the Legislature. Their power is dependent upon statutes, so that they must find within the statute warrant for the exercise of any authority which they claim.\\\" (internal quotations omitted)).\\nBased upon the foregoing, it is apparent to this Court that Respondent acted in complete conformity with the Rules of Lawyer Disciplinary Procedure in this matter. Furthermore, there is no provision in the Rules which requires or authorizes Respondent to remove any portion of Ms. Potter's file. We conclude, therefore, that Petitioner does not have a clear right to the removal of the CDs and transcripts from Ms. Potter's closed file, nor does Respondent have some corresponding legal duty to remove them. Syl. Pt. 1, McCoy, 198 W.Va. at 460, 481 S.E.2d at 766. Petitioner has thus failed to establish that a petition for writ of mandamus should issue. Accordingly, we deny the writ.\\nIV. Conclusion\\nFor the reasons discussed herein, the petition for writ of mandamus is hereby denied.\\nWrit denied.\\n. This case was presented as a petition for writ of prohibition. However, this Court has clearly indicated that \\\"prohibition lies not only to judicial tribunals, but to inferior ministerial tribunals possessing incidentally judicial powers and known as quasi-judicial tribunals. This includes administrative tribunals having quasi-judicial power when acting in a quasi-judicial capacity.\\\" State ex rel. Affiliated Const. Trades v. Vieweg, 205 W.Va. 687, 692, 520 S.E.2d 854, 859 (1999) (internal citations omitted). Under the Rules of Lawyer Disciplinary Procedure, as established by this Court, the duties, responsibilities and authority of the Office of Disciplinary Counsel, the respondent herein, are, in relevant part, prosecutorial in nature and are neither judicial nor quasi-judicial. See e.g., Rules 4 and 4.4 of the Rules of Lawyer Disciplinary Procedure. Thus, a remedy in prohibition does not lie in this proceeding and, consequently, the requested writ of prohibition will not be issued. However, even though Petitioner did not plead in the alternative, this Court has, in past cases, treated a request for relief in prohibition as a petition for writ of mandamus if so warranted by the facts. See Vieweg, 205 W.Va. at 692, 520 S.E.2d at 859; Carr v. Lambert, 179 W.Va. 277, 278 n. 1, 367 S.E.2d 225, 226 n. 1 (1988). Accordingly, we consider the present petition as a request for mandamus relief.\\n. Ordinarily, a party who files an ethics complaint against a lawyer does not allege specific violations of the Rules of Professional Conduct. However, in his ethics complaint against Ms. Potter, Petitioner alleged that she violated Rule 8.4 of the Rules of Professional Conduct, \\\"misconduct,\\\" which provides, in relevant part:\\nIt is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;\\n(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation^]\\n. Rule 8.3 of the Rules of Professional Conduct, \\\"reporting professional misconduct,\\\" provides, in relevant part:\\n(a) A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.\\n. Respondent originally requested that Ms. Potter send a copy of her response directly to Petitioner. However, we note that there is nothing in the Rules of Lawyer Disciplinary Procedure which requires a respondent lawyer to serve a copy of his or her response to the complaining party. Thereafter, Ms. Potter indicated to Respondent that she did not wish to send a copy of her response to Petitioner in light of their contentious and ongoing divorce proceedings.\\n. According to Petitioner, he and a friend with whom he served in the military have communicated via cassette tape for more than thirty years. Petitioner explained that after one of them records a message, it is mailed to the other, who then listens to the message, records his own message over it, and mails it back. According to Petitioner, neither he nor his friend have ever shared the recorded messages with another person. Petitioner further explained that Ms. Potter was well aware of the cassette exchange, which occurred approximately once a month.\\nPetitioner alleged that Ms. Potter was also aware that Petitioner routinely recorded the letters to his friend in the privacy of his automobile and that she unlawfully obtained the tape from his car. However, Ms. Potter claimed that she took the tape from the parties' marital home. See Discussion, infra.\\n. A copy of Ms. Potter's response to the ethics complaint is not a part of the record before this Court. However, according to the Lawyer Disciplinary Board Investigative Panel Closing report, entered May 15, 2007, Ms. Potter asserted that she arrived at Petitioner's law office in order to speak with him, unaware that he was not going to be there. She further alleged that\\nshe was not in [Petitioner's] law office for any extended period of time, contrary to [Petitioner's] assertion that she was in his office long enough to 'conduct a systematic search' of the boxes contained therein. However, [Ms. Potter] did admit that she removed a folder from [Petitioner's] office that contained personal information but later returned it. [Ms. Potter] stated she did not copy the material in the file folder and only reviewed it briefly. [Ms. Potter] finally stated that the issue of her taking the file from [Petitioner's] office was not an issue until [Petitioner] became angry with [Ms. Potter] over unrelated events and that this ethics complaint is in retaliation of the same.\\n(Emphasis added) Lawyer Disciplinary Board Investigative Panel Closing, May 15, 2007, at pp. 3-4.\\n. In its May 12, 2007, report, the Investigative Panel concluded that \\\"[d]espite the motivation behind filing the complaint, knowingly and wrongfully removing files from a lawyer's office for use in any proceeding is a serious matter.\\\" Lawyer Disciplinary Board Investigative Panel Closing, May 12, 2007, p. 4. The Investigative Panel acknowledged, however, that \\\"the parties are involved in contentious divorce proceedings[,]\\\" which mitigate in favor of Ms. Potter. The Investigative Panel further reported that \\\"in reviewing [Ms. Potter's] history as a member of this Bar, her conduct in this case appears to be an isolated incident of poor judgment.\\\" Ms. Potter was \\\"strongly cautioned about her conduct in this matter and warned that similar conduct in the future may result in disciplinary action.\\\" Id.\\n. Respondent further advised Petitioner that the allegations regarding the cassette tape involve \\\"factual and legal issues that are beyond the jurisdiction of this office to decide. This is a dispute regarding the acquisition, use and return of your personal property in your divorce proceeding. Moreover, you state that a March hearing is currently scheduled with regard to this matter.\\\" February 21, 2008, letter from Respondent to Ms. Potter.\\n. Rule 4 of the Rules of Lawyer Disciplinary Procedure states, in relevant part, that \\\"[t]he Supreme Court of Appeals does hereby establish an Office of Disciplinary Counsel[.]\\\"\\n. This Court has consistently declared that \\\" 'attorney disciplinary proceedings are primarily designed to protect the public, to reassure it as to the reliability and integrity of attorneys and to safeguard its interest in the administration of justice.' \\\" Lawyer Disciplinary Bd. v. Roberts, 217 W.Va. 189, 197, 617 S.E.2d 539, 547 (2005) (quoting Committee on Legal Ethics v. Keenan, 192 W.Va. 90, 94, 450 S.E.2d 787, 791 (1994)). As set forth above, when an ethics complaint is dismissed for lack of probable cause (as in the case of Petitioner's complaint against Ms. Potter), only the initial complaint and Investigative Panel's report closing the matter are publicly accessible. See Rule 2.9(b) of the Rules of Lawyer Disciplinary Procedure and syl. pt. 6, Daily Gazette, 174 W.Va. at 360, 326 S.E.2d at 706. The remainder of the record in such cases is sealed. The sealed record includes details of the investigation, exhibits and other evidence supporting the Investigative Panel's decision to dismiss the matter. The Rules of Lawyer Disciplinary Procedure do not allow the removal or destruction of any portion thereof. Thus, the public can be assured that such records, though not open to their inspection, nevertheless remain intact and unaltered.\"}"
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+"{\"id\": \"3848087\", \"name\": \"STATE of West Virginia ex rel. Gregory SMITH, Petitioner v. MINGO COUNTY COMMISSION, Jim Hatfield, Mingo County Clerk, and Lonnie Hannah, in his Official Capacity as Mingo County Sheriff, Respondents\", \"name_abbreviation\": \"State ex rel. Smith v. Mingo County Commission\", \"decision_date\": \"2011-11-21\", \"docket_number\": \"No. 100916\", \"first_page\": \"474\", \"last_page\": \"482\", \"citations\": \"228 W. Va. 474\", \"volume\": \"228\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T00:36:47.987942+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of West Virginia ex rel. Gregory SMITH, Petitioner v. MINGO COUNTY COMMISSION, Jim Hatfield, Mingo County Clerk, and Lonnie Hannah, in his Official Capacity as Mingo County Sheriff, Respondents.\", \"head_matter\": \"721 S.E.2d 44\\nSTATE of West Virginia ex rel. Gregory SMITH, Petitioner v. MINGO COUNTY COMMISSION, Jim Hatfield, Mingo County Clerk, and Lonnie Hannah, in his Official Capacity as Mingo County Sheriff, Respondents.\\nNo. 100916.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted Oct. 19, 2011.\\nDecided Nov. 21, 2011.\\nJohn A. Kessler, Esq., David R. Pogue, Esq., Michael W. Carey, Carey, Scott, Douglas & Kessler, PLLC, Charleston, WV, Attorneys for Petitioner.\\nLeah Macia, Esq., Spilman Thomas & Battle, PLLC, Charleston, WV, Attorney for Respondent Mingo, County Sheriff Lonnie Hannah.\", \"word_count\": \"4636\", \"char_count\": \"28888\", \"text\": \"WORKMAN, Chief Justice:\\nPetitioner Gregory Smith, a Commissioner on the Mingo County Commission, appeals the denial of his petition for a writ of mandamus by the Circuit Court of Mingo County, West Virginia. After successfully defending against a Petition for Removal, Petitioner Smith filed a complaint with the circuit court, seeking a writ of mandamus directing the Mingo County Sheriff and the Mingo County Commission to reimburse him for his costs and attorney's fees incurred in his defense. The circuit court denied his petition, finding that Petitioner Smith did not meet the standard for the issuance of such a writ. For the reasons that follow, this Court reverses the circuit court's order and remands the case for further consideration.\\nI. FACTS AND PROCEDURAL HISTORY\\nOn December 15, 2006, the Assessor of Mingo County (at that time David Baisden ) and the Sheriff of Mingo County, Lonnie Hannah (\\\"Respondent Hannah\\\"), filed a Petition for Removal pursuant to West Virginia Code \\u00a7 6-6-7 (2010), seeking to remove Petitioner Smith from his position as a commissioner on the Mingo County Commission. Among other things, the petition contained allegations that Petitioner Smith had illegally delegated his duty to auction county property, failed to sign all checks issued by the county commission, voted to fund entities which were later indicted for defrauding Mingo County, wasted public funds and employed a convicted felon in a position in Min-go County. Pursuant to the governing statute, this Court empaneled a three-judge court to consider and rule on the Petition for Removal. W. Va.Code \\u00a7 6-6-7.\\nAfter conducting a two-day hearing, the three-judge court issued a written order on October 2, 2007, denying the Petition for Removal. In its order, the court concluded that although Petitioner Smith had committed \\\"technical\\\" violations of two statutes, the petitioners had failed to prove, by clear and convincing evidence, that the violations justified removing Petitioner Smith from office. Accordingly, the three-judge court ordered that the case be dismissed from the court's docket. The three-judge court was not asked to consider, nor did it consider, any issues regarding reimbursement of costs or attorney's fees to Petitioner Smith. Respondent Hannah appealed the three-judge court's ruling and this Court denied that appeal on May 22,2008.\\nOn July 23, 2008, Petitioner Smith filed a Petition for a Writ of Mandamus in the Circuit Court of Mingo County, seeking to compel the Mingo County Commission to reimburse him for $53,548.81 in attorney's fees and costs that he spent in defending against the unsuccessful removal petition. Petitioner Smith's mandamus action named the Mingo County Commission, Jim Hatfield (the Mingo County Clerk), and Respondent Hannah as defendants.\\nOn March 24, 2010, the circuit court entered an order denying Petitioner Smith's complaint, finding that Petitioner Smith had failed to meet the three factors required for the issuance of a writ of mandamus. The circuit court focused primarily on the first factor, finding that Petitioner Smith had failed to establish a clear legal right to the relief requested. It found that Petitioner Smith could have, and should have, requested reimbursement of fees from the three-judge court that considered the removal petition. The circuit court found that the three-judge court \\\"clearly\\\" could have addressed the issue, \\\"since the three-judge court is statutorily { e.g. Code (e) ]} empowered and mandated to issue a final order containing '. such findings of fact and conclusions of law as the three-judge court shall deem sufficient to support its decision of all issues presented to it in the matter.'\\\" The circuit court distinguished the instant ease from this Court's opinion in Powers v. Goodwin, 170 W.Va. 151, 291 S.E.2d 466 (1982), which authorized the use of mandamus to obtain reimbursement of attorney's fees following a successful defense in a removal action on the basis that the statutory scheme relating to removal actions has been modified since Powers was issued.\\nThe circuit court further determined that Petitioner Smith had failed to meet the criteria for the second and third factors required for the issuance of mandamus as well. As to the second factor, it found that Petitioner Smith had failed to establish that the Mingo County Commission had a clear legal duty to pay the attorney's fees and costs. Because it found that the three-judge court could have awarded costs and attorney's fees, the circuit court finally concluded that there was no absence of another adequate remedy. It is from this order that Petitioner Smith now appeals.\\nII. STANDARD OF REVIEW\\nThis case comes before the Court as an appeal of a denial of a writ of mandamus. \\\"A rife novo standard of review applies to a circuit court's decision to grant or deny a writ of mandamus.\\\" Syl. Pt. 1, Harrison Cnty. Comm'n v. Harrison Cnty. Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008).\\nBefore 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.\\nSyl. Pt. 3, Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981).\\nIII. DISCUSSION\\nIn his appeal, Petitioner Smith contends that all three criteria required for the issuance of a writ of mandamus are met in this case. He relies substantially on Powers, 170 W.Va. at 160, 291 S.E.2d at 475, in which this Court found that mandamus is an appropriate method by which to resolve questions concerning the reimbursement of attorney's fees to public officials who have successfully defended against removal petitions. The circuit court, however, found that Powers had been\\nconsidered by our Supreme Court under the old law authorizing the use of a single-judge proceeding involved in a removal proceeding, and prior to the 1985 amendments to West Virginia Code \\u00a7 6-6-7[ (e) ], which codified changes authorizing the three-judge court to preside over such removal cases, as presently outlined in the statute.\\nThus, the circuit court declined to afford any weight to the Powers decision, instead holding that under the current statutes, Petitioner Smith should have sought reimbursement for his attorney's fees from the three-judge court that ruled on the removal petition. This Court, therefore, turns first to the current statutory framework to determine whether the circuit court erred in holding that the three-judge panel could have, and should have, ruled on the issue of attorney's fees.\\nA.\\nIn 1985, the Legislature amended West Virginia Code \\u00a7 6-6-7, which governs the removal of public officials from office. Prior to this amendment, removal petitions were heard by the circuit judge in the county in which the officer resided. W. Va.Code \\u00a7 6-6-7 (1919). Pursuant to the 1985 amendments, however, such petitions are now heard by three-judge courts empaneled by the Chief Justice of the West Virginia Su preme Court of Appeals. W. Va.Code \\u00a7 6-6-7(e) (2010).\\nSuch three-judge court shall, without a jury, hear the charges and all evidence offered in support thereof or in opposition thereto and upon satisfactory proof of the charges shall remove any such officer or person from office and place the records, papers and property of his office in the possession of some other officer or person for safekeeping or in the possession of the person appointed as hereinafter provided to fill the office temporarily. Any final order either removing or refusing to remove any such person from office shall contain such findings of fact and conclusions of law as the three-judge court shall deem sufficient to support its decision of all issues presented to it in the matter.\\nId. Thus, the three-judge court must consider the allegations contained in the removal petition, together with all evidence, and issue a final order complete with findings of fact and conclusions of law ruling upon \\\"all issues presented to it in the matter.\\\" Id.\\nRelying upon this statutory language, the circuit court determined that Petitioner Smith could have and should have presented his request for reimbursement of attorney's fees to the three-judge court. It found that, by failing to do so, Petitioner Smith had failed to utilize a remedy which was available to him. The circuit court further found Petitioner Smith failed to establish a clear legal right to the relief sought through a writ of mandamus, because \\\"there is no explicit statutory bases [sic] for the granting of attorney's fees and costs under these facts and circumstances.... \\\"\\nContrary to the circuit court's findings, however, a statute does exist governing the reimbursement of attorney's fees to public officials who have successfully defended against a petition for removal. Indeed, in the same legislative Act that amended the procedures for hearing a removal petition, the Legislature also enacted West Virginia Code \\u00a7 ll-8-31a (2008), which provides, in relevant part:\\nThe governing body of the governmental entity of which a person is an official is hereby authorized to reimburse such person for the reasonable amount of such person's attorney fees in any case:\\n<a) Wherein such person has successfully defended against an action seeking his or her removal from office, or\\nIn either case such governing body shall have authority to determine if such reimbursement is warranted and the reasonableness of the amount sought to be recovered.\\n(Emphasis added.) Thus, at the same time it established the three-judge court system for hearing removal petitions, the Legislature also specifically delegated the authority to reimburse attorney's fees in such eases to \\\"[t]he governing body of the governmental entity of which a person is an official.\\\" Id.\\nThis Court has previously recognized that\\n[statutes which relate to the same persons or things, or to the same class of persons or things, or statutes which have a common purpose will be regarded in pari materia to assure recognition and implementation of the legislative intent. Accordingly, a court should not limit its consideration to any single part, provision, section, sentence, phrase or word, but rather review the act or statute in its entirety to ascertain legislative intent properly.\\nSyl. Pt. 6, Cmty. Antenna Serv., Inc. v. Charter Commc'ns VI, LLC, 227 W.Va. 595, 712 S.E.2d 504 (2011) (quoting Syl. Pt. 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W.Va. 14, 217 S.E.2d 907 (1975)). When West Virginia Code \\u00a7 6-6-7 and 11-8-31a, which both relate to the removal of public officials from office and which were enacted at the same time in a singular Act of the Legislature, are read in pari materia, it is clear that the Legislature intended to vest local governing bodies, not the three-judge courts, with the authority to reimburse a public official for a reasonable amount of attorney's fees incurred in the course of suc cessfully defending against a removal action. The circuit court, therefore, erred in holding that Petitioner Smith could have requested such reimbursement from the three-judge court.\\nB.\\nBoth Petitioner Smith and Respondent Hannah agree that the circuit court erred in finding that the three-judge court had the authority to reimburse Petitioner Smith for his attorney's fees. The parties disagree, however, about whether Petitioner Smith could utilize a petition for mandamus pursuant to Powers, or whether he was required to seek reimbursement from the Min-go County Commission.\\nUnder the plain language of West Virginia Code \\u00a7 ll-8-31a, \\\"[t]he governing body of the governmental entity of which a person is an official is . authorized to reimburse such person for the reasonable amount of such person's attorney fees,\\\" in cases in which the public official \\\"has successfully defended against an action seeking his or her removal from office.\\\" In the instant case, the \\\"governing body of the governmental entity\\\" of which Petitioner Smith is a member is the Mingo County Commission. See id. The Mingo County Commission is made up of three members, including Petitioner Smith and Commissioner Baisden, one of the individuals who filed the original petition for removal against Petitioner Smith. Given the obvious personal interest that both Petitioner Smith and Commissioner Baisden have in this matter, Petitioner Smith contends that both would have to disqualify themselves from considering his request for reimbursement of attorney's fees. Such disqualifications would prevent the Mingo County Commission from deciding the matter, however, as a quorum of at least two commissioners is required for the Commission to act. W. Va.Code \\u00a7 (2010) (\\\"A county commission shall consist of three commissioners as provided in section nine, article IX of the Constitution of the State of West Virginia, any two of whom shall constitute a quorum for the transaction of business.\\\").\\nRespondent Hannah, on the other hand, argues that the Mingo County Commission is the only body authorized to consider a reimbursement of attorney's fees, and contends that Petitioner Smith should have sought reimbursement from the Commission before filing his Complaint for Mandamus. Notably, in his Answer to Petitioner Smith's Complaint for Mandamus, Respondent Hannah admitted that a quorum could not be achieved on the Commission for this matter. Nevertheless, during oral argument before this Court, he argued for the first time that the Commission can achieve a quorum because Commissioner Baisden is not required to recuse himself as he has no financial interest in the attorney's fee decision.\\nWest Virginia Code \\u00a7 7-l-5a (2010), which governs the recusal of county commissioners from particular votes, provides that\\n[e]ach county commissioner present during any county commission meeting when any question is put shall vote unless he is immediately and particularly interested therein. Before such question is put, any member having a direct personal or pecuniary interest therein should announce this fact, and request to be excused from voting. The disqualifying interest must be such as affects the member directly, and not as one of a class.\\n(Emphasis added.) While Commissioner Ba-isden may not have a pecuniary interest in a vote over whether to reimburse Petitioner Smith for his attorney's fees, he most certainly has a direct personal interest therein, given that Commissioner Baisden was one of the individuals who filed the original petition seeking to remove Petitioner Smith. For this reason, and because Respondent Hannah admitted as much in his Answer to the Complaint for Mandamus, the Court finds that the Mingo County Commission would not be able to achieve a quorum to vote on the issue of whether to reimburse Petitioner Smith for a reasonable amount of attorney's fees expended during his successful defense of the petition for removal.\\nC.\\nThe remaining issue, therefore, is how a public official who has successfully defended against a petition for removal should go about seeking reimbursement of attorney's fees, when the governing body of the governmental entity of which he is an official is unable to consider the issue. See W. Va. Code \\u00a7 ll-8-31a. The statute giving such authority to governing bodies of governmental entities, West Virginia Code \\u00a7 ll-8-31a, is silent on this point. As Petitioner Smith contends, however, this issue has already been addressed by this Court in Powers.\\nIn Powers, a petition for removal and criminal charges had been filed against a member of the Boone County Commission, James Goodwin, alleging that Mr. Goodwin misused a county commission telephone credit card. 170 W.Va. at 154, 291 S.E.2d at 469. Mr. Goodwin successfully defended against both actions, incurring $14,547.64 in attorney's fees in the process. Id. The Boone County Commission, with Mr. Goodwin abstaining, voted to reimburse Mr. Goodwin for the expended fees. Id. Thereafter, a group of plaintiffs filed a petition to remove all three members of the Boone County Commission, including Mr. Goodwin. Id. The circuit court, which was tasked with presiding over the removal petitions at that time, found that the vote to reimburse Mr. Goodwin constituted an \\\"unlawful expenditure of county money for an unauthorized purpose,\\\" but found that the vote was made in good faith and, thus, was not a removable act. Id. It did, however, order that Mi'. Goodwin repay to the county commission the reimbursement of his attorney's fees and further ordered that, should Mr. Goodwin default on his debt, the remaining two members of the county commission would be secondarily liable. Id. The circuit court's rulings were based on its interpretation of the relevant statutes in effect at that time. Id.\\nOn appeal, this Court concluded that the circuit court had misinterpreted the relevant statutes and reversed and remanded the ease. Id. Specifically the Court found that under the statutes in effect at that of which have subsequently been amended\\u2014 \\\"a county commission member can be removed from office upon a lower standard of proof than that required to make him personally liable for misappropriated funds.\\\" Id. Consequently, the circuit court had erred in finding the commissioners personally liable for the funds, but not sufficiently culpable to be removed from office. Id.\\nThe Court then addressed several issues relating to the reimbursement of attorney's fees to public officials who have successfully defended against removal actions, a topic which was not addressed by any statute in effect at that time. Specifically, the Court explained that \\\"[t]he expansion of personal liability on the part of government officers during the last twenty years and the concurrent restriction of the defense of sovereign immunity has made the question of the indemnification of government employees for the expenses of litigation one of increasing public concern.\\\" Id. at 155, 291 S.E.2d at 470. It further noted that \\\"West Virginia has no statutes directly relating to whether an officer should be reimbursed for attorneys' fees that he incurs in defending actions against himself personally as a result of his official conduct.\\\" Id. at 155-56, 291 S.E.2d at 470-71. It therefore looked to the majority view from other jurisdictions to find that\\n[t]he rules governing whether a public official is entitled to indemnification for attorneys' fees are the same in both the civil and criminal context. In order to justify indemnification from public funds the underlying action must arise from the discharge of an official duty in which the government has an interest; the officer must have acted in good faith; and the agency seeking to indemnify the officer must have either the express or implied power to do so.\\n170 W.Va. 151, 291 S.E.2d 466, Syl. Pt. 3. Thus, the Court created a three-part test for determining when a public official should be indemnified for attorney's fees.\\nThe Court additionally recognized that problems can arise when a decision regarding indemnification is made by the body on which the person seeking indemnification sits. Id. at 159, 291 S.E.2d at 474. It therefore found that \\\"it is possible to get an advance determination of the legality of indemnification through . a mandamus proceeding similar to the one that we traditionally employ to test the validity of bond issues.\\\" Id. at 159-60, 291 S.E.2d at 475. It acknowledged that such a mandamus proceeding may be \\\"admittedly artificial in terms of a true adversarial confrontation,\\\" but found that such course of action \\\"succeeds in getting the question before a neutral arbiter in a comparatively expeditious fashion.\\\" Id. at 160, 291 S.E.2d at 475.\\nConsequently, when a county commission or other fiscal body is in doubt about whether it is appropriate to expend county funds to indemnify itself for legal fees incurred as a result of the good faith discharge of its duties, it can bring a mandamus action against the sheriff or other appropriate ministerial officer to require him to issue the check for that purpose.\\nId.\\nFinally, the Court in Powers recognized that an important public interest is served by indemnifying public officials who have successfully defended against petitions for removal. It found that \\\"the voters have a legitimate interest in protecting their duly elected officials from being hectored out of office through the constant charge of bankrupting attorneys' fees on their own personal resources.\\\" Id. at 161, 291 S.E.2d at 476. Thus, the Court concluded that indemnification in such circumstances is actually necessary to promote democracy:\\ncontinued service in an elected position is not a question in which only the officeholder has a personal concern; in a democratic government predicated upon the competition of polices and ideas through different candidates for elected office, the public itself has an interest in seeing persons elected by a majority continue in office.\\nId.\\nAs previously noted, the circuit court in the instant case found that the 1985 amendments to West Virginia Code \\u00a7 6-6-7 rendered Powers obsolete, because the circuit court found that the amendments to \\u00a7 6-6-7 delegated the authority to reimburse attorney's fees to a prevailing public official to the three-judge panel. As already explained, however, this Court disagrees with that interpretation of \\u00a7 6-6-7. Indeed, nothing in the amendments to \\u00a7 6-6-7 in any way implicate the reimbursement of attorney's fees.\\nThe passage of West Virginia Code \\u00a7 11\\u2014 8-31a, on the other hand, does have some bearing on the Powers opinion. As previously noted, when this Court issued Powers, no statute then in existence in any way governed the reimbursement of attorney's fees to a public official following a successful defense of a removal petition. Three years after Powers was issued, the Legislature enacted \\u00a7 ll-8-31a, which explicitly governs the issue. Nevertheless, upon close consideration, it is clear that the holdings of Powers and the language of \\u00a7 ll-8-31a are not mutually exclusive, but rather \\u00a7 ll-8-31a appears to build on the framework established in Powers.\\nImportantly, West Virginia Code \\u00a7 31a does not address situations, such as in the instant case, in which the governing body of the governmental entity of which a public official is a member cannot make a determination regarding attorney's fees. Thus, the plain language of the statute is insufficient to resolve the issue in this case.\\nThe Powers decision, on the other hand, addresses this type of situation precisely. Notably, this Court in Powers appears to have presumed that a governmental official or governing body of a governmental entity, such as a county commission, would consider reimbursements of attorney's fees to public officials who have successfully defended against removal petitions in most cases; it did not presume that all cases would be decided by a court. 170 W.Va. at 159, 291 S.E.2d at 474 (\\\"The problem [of what method to use to indemnify a public official for attorney's fees] is comparatively simple when there is a neutral official or fiscal body that can pass upon the request for indemnity by one of its own employees or even by another elected or appointed official.\\\"). Thus, the language in Powers indicating that indemnification of attorney's fees may be determined through the issuance of mandamus has always been limited to those situations in which the relevant governing body could not, or would not, make that decision itself. Id. at 159-60, 291 S.E.2d at 474-75.\\nAccordingly, because West Virginia Code \\u00a7 ll-8-31a does not provide a method for awarding attorney's fees in cases such as this, and because Powers does address this particular type of situation, the Court holds that a writ of mandamus is an appropriate method by which to determine whether a public official is entitled to reimbursement of reasonable attorney's fees following a successful defense to a petition for removal, when the governing body of the governmental entity of which such person is an official is unable to consider the issue.\\nD.\\nAs a final matter, the Court finds that West Virginia Code \\u00a7 ll-8-31a requires reliance on Powers in an additional respect. Specifically, that statute grants to governing bodies, such as a county commission, the \\\"authority to determine if such reimbursement is warranted_\\\" W. Va.Code \\u00a7 11-8-31a. The statute, however, provides no criteria on which to base such a determination. On the other hand, such guidance is provided in syllabus point three of Powers, which sets forth factors to consider in determining this exact issue. As previously stated, that syllabus point creates a three-part test for when a public official is entitled to indemnification for attorney's fees:\\n[i]n order to justify indemnification from public funds the underlying action must arise from the discharge of an official duty in which the government has an interest; the officer must have acted in good faith; and the agency seeking to indemnify the officer must have either the express or implied power to do so.\\n170 W.Va. 151, 291 S.E.2d 466, Syl. Pt. 3, in part. The Court, therefore, now holds that, in determining whether reimbursement for attorney's fees is warranted under West Virginia Code \\u00a7 ll-8-31a (2008), a governing body should apply the three-part test established in syllabus point three of Powers v. Goodwin, 170 W.Va. 151, 291 S.E.2d 466 (1982). Where a public official can meet the three elements of the Powers test, that official has established a clear legal right to the reimbursement of reasonable attorney's fees and, therefore, has met the first element required for the issuance of a writ of mandamus.\\nIV. CONCLUSION\\nFor the reasons stated herein, the Court reverses the March 24, 2010, order of the Circuit Court of Mingo County, West Virginia. The circuit court erred in finding that Petitioner Smith could have sought reimbursement of attorney's fees from the three-judge panel which ruled on the petition for removal, and erred in determining that Powers is no longer good law. The Court remands this case for reconsideration by the circuit court of whether Petitioner Smith has established the three necessary elements entitling him to a writ of mandamus. See Cooper, 171 W.Va. 245, 298 S.E.2d 781, Syl. Pt. 3. In considering the first element, whether Petitioner Smith has a clear legal right to the relief sought, the circuit court must determine if Petitioner Smith has met the three-part test set forth in syllabus point three of Powers. The case, therefore, is reversed and remanded for further proceedings consistent with this opinion.\\nReversed and remanded.\\n. David Baisden is now a commissioner on the Mingo County Commission.\\n. Neither the Mingo County Commission nor Jim Hatfield responded to Petitioner Smith's petition for appeal.\\n.The three factors required for the issuance of a writ of mandamus are set forth in Section II of this opinion, infra.\\n. 1985 W.Va. Acts c. 144.\\n. Paragraph fourteen of Respondent Hannah's Answer to the Complaint for Mandamus states \\\"Defendant Sheriff Hannah admits that because there can be no quorum of the Mingo County Commission, the Mingo County Commission cannot act.\\\"\\n. The statutes considered by the Court in this portion of the opinion, i.e. those regarding the correct standard of proof to apply to removal proceedings, have since been amended. See W. Va.Code \\u00a7 11-8-26 (Supp.2011) (amended in 2009); W. Va.Code \\u00a7 11-8-29 (2008) (amended in 1985); W. Va.Code \\u00a7 (2008) (amended in 1985). Thus, to the extent that syllabus point one of Powers, which addresses these standards of proof, has been superseded by statute, it is no longer controlling law.\\n. As will be discussed further herein, this statement is no longer valid because the Legislature has subsequently passed a statute which addresses this issue specifically.\\n. The test established in syllabus point three of Powers has been cited by this Court in a variety of cases involving the reimbursement of attorney's fees to public officials, most recently in State ex rel. Hicks v. Bailey, 227 W.Va. 448, 711 S.E.2d 270 (2011). Consequently, there Is no question that this portion of the Powers opinion has remained sound law.\"}"
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+"{\"id\": \"7344936\", \"name\": \"CHRISTOPHER BLACKWELL V. DIVISION OF CORRECTIONS\", \"name_abbreviation\": \"Blackwell v. Division of Corrections\", \"decision_date\": \"2011-01-18\", \"docket_number\": \"CC-09-0175\", \"first_page\": \"190\", \"last_page\": \"192\", \"citations\": \"28 Ct. Cl. 190\", \"volume\": \"28\", \"reporter\": \"Report of the West Virginia Court of Claims\", \"court\": \"West Virginia Court of Claims\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T21:37:51.423285+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CHRISTOPHER BLACKWELL V. DIVISION OF CORRECTIONS\", \"head_matter\": \"OPINION ISSUED JANUARY 18, 2011\\nCHRISTOPHER BLACKWELL V. DIVISION OF CORRECTIONS\\n(CC-09-0175)\\nClaimant appeared pro se.\\nJohn Boothroyd, Assistant Attorney General, for Respondent.\", \"word_count\": \"1168\", \"char_count\": \"7184\", \"text\": \"PER CURIAM:\\nClaimant, an inmate at Mount Olive Correctional Complex, a facility of the Respondent, brought this claim to recover the value of certain personal property items that he alleges were lost by the Respondent. Claimant was serving a term of confinement in lock-up for thirty (3 0) days. When he was released from lockup and returned to the mainline population, several items of his personal property were missing. Claimant placed a value of $429.99 on his personal property. The Court is of the opinion to make an award in this claim for the reasons stated more fully below.\\nA hearing was conducted by the Court in this claim on October 21, 2010, at which time the Claimant testified as to the facts and circumstances giving rise to the claim. On or about October 1, 2008, Mr. Blackwell was transferred from his single-cell in the mainline prison population to segregated lock-up. Mr. Blackwell testified that when a single-cell inmate is transferred to lock-up it is prison procedure for state shop workers to enter the inmate's cell, inventory and collect the inmate's personal property, and transfer the property to the state shop for storage while the inmate is in lock-up. It is Mr. Blackwell's allegation that contrary to Respondent's procedure a correctional officer entered his cell to retrieve paint for another inmate and allowed at least one inmate to enter his cell and steal his personal property. Mr. Blackwell testified that upon re-entering the mainline population he realized that certain items of personal property where missing, including: one pair of Wolverine boots ($150.00), one pair Reebolc high top basketball shoes ($60.00), one set of Sony headphones ($20.00), one Play Station II game - Supreme Commander II ($29.99), one Play Station II memory card ($25.00), one pair of Oakley sunglasses ($35.00), two velour blankets ($40.00), one large trash can ($10.00), and one Sony CD/AM/FM Walkman ($60.00). After he was released from lock-up, Mr. Blackwell was informed by another inmate that some of his property had been sold in the yard by other inmates. Claimant stated that the inmate who was accused of stealing his property, George Watts, admitted to Claimant that he entered Claimant's cell to retrieve and hold onto property for Claimant, but that he was afraid of getting into trouble and sold it.\\nEdwin Mack Taylor, an inmate at Respondent's facility, testified that around January or February of 2010, he was placed in lock-up one cell away from Claimant. Mr. Taylor stated that around that time he overheard a conversation between the Claimant and an inmate located one cell above him, wherein the other inmate (unknown to Mr. Taylor) admitted to entering Claimant's cell and stealing a blanket, a rug, and other personal property, and then selling it.\\nJoshua Vaughn Ward, Unit Manager for Respondent, testifying on behalf of Claimant, stated that Counselor Crowder informed him that Claimant's Sony CD Walkman was stolen out of storage and that it should be replaced for Claimant. Unit Manager Ward stated that to his knowledge Claimant has not received a replacement portable CD player or compensation for his loss.\\nClaimant filed at least one \\\"G-l\\\" grievance concerning his missing personal property, which Respondent denied as without merit on the grounds that no one other than the state shop workers entered Claimant's cell after he was sent to lock-up. Claimant also filed a \\\"G-2\\\" grievance appeal, which was denied as untimely and without merit.\\nClaimant asserts that Respondent was responsible for his personal property once he was removed from his single-cell and sent to lock-up, and that a bailment relationship existed at the time when he no longer had control or possession of his property.\\nRespondent contends that it was not responsible for Claimant's property and that it followed proper procedures in removing his property from the cell to the state shop. Respondent submitted into evidence three \\\"Resident's Personal Property Form(s),\\\" respectively dated March 7,2008; March 10,2008; and October 6,2008. The first and second property forms corroborate Claimant's testimony that prior to being locked-up on October 1, 2008, he was in possession of at least one blanket, Wolverine boots, Sony headphones, Play Station II accessories, five (5) Play Station II games, a trash can, and a Sony CD Walkman. The third property form, applicable to this incident, is dated six days after Claimant was sent to lock-up. According the October 2008 property form, Claimant no longer possessed any boots or blankets, and only possessed four (4) Play Station II games. The third property form does, however, indicate that Claimant still possessed Sony headphones and a Sony Walkman CD player. Claimant testified that although he signed the third property form when he was released from lock-up on October 31, 2008, he was not given an opportunity to look over his property to make sure it was all there before signing the form.\\nThis Court has held that bailment exists when Respondent records the personal property of an inmate and takes it for storage purposes, and then has no satisfactory explanation for not returning it. Page v. Division of Corrections, 23 Ct. Cl. 238 (2000); Heard v. Division of Corrections, 21 Ct. Cl. 151 (1997). In the present claim, the evidence adduced at the hearing establishes that the Claimant had, at the least, one pair of Wolverine boots, one blanket, Sony headphones, Play Station II accessories, five (5) Play Station II games, a trash can, and a Sony CD Walkman in his possession while an imnate at Mt. Olive. However, when Claimant was released from lock-up none of these items were found and returned to him. The property was in the control and possession of Respondent while the Claimant was in lock-up, and Respondent has no plausible explanation for what happened to the missing property items. Respondent was in a position to safeguard Claimant's property once he was removed from his cell and should have secured the property immediately after the Claimant was removed from his single-cell. However, the October property form indicates that Respondent waited six days before securing and inventorying Claimant's property. The Court finds that Respondent was responsible for securing the Claimant's property and failed to take the appropriate action to do so. Therefore, the Court is of the opinion to make an award to the Claimant for the value of his Wolverine boots, one (1) blanket, Sony headphones, Play Station II memory card, one (1) Play Station II game, trash can, and Sony CD Walkman. No evidence was presented that Claimant had a pair of Reebolc basketball shoes, a second blanket, or Oakley sunglasses in his possession while an inmate at Mt. Olive. The Court is of the opinion that $314.99 represents a fair and reasonable reimbursement to Claimant for the lost property.\\nAccordingly, the Court is of the opinion to and does malee an award to the Claimant in the amount of $314.99.\\nAward of $314.99.\"}"
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+"{\"id\": \"8160135\", \"name\": \"STATE of West Virginia, Plaintiff Below, Appellee, v. David Gabriel STAMM, Defendant Below, Appellant\", \"name_abbreviation\": \"State v. Stamm\", \"decision_date\": \"2008-05-23\", \"docket_number\": \"No. 33505\", \"first_page\": \"276\", \"last_page\": \"284\", \"citations\": \"222 W. Va. 276\", \"volume\": \"222\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T01:21:33.642853+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of West Virginia, Plaintiff Below, Appellee, v. David Gabriel STAMM, Defendant Below, Appellant.\", \"head_matter\": \"664 S.E.2d 161\\nSTATE of West Virginia, Plaintiff Below, Appellee, v. David Gabriel STAMM, Defendant Below, Appellant.\\nNo. 33505.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted April 15, 2008.\\nDecided May 23, 2008.\\nGreta L. Davis, Public Defender Corporation, Clarksburg, for the Appellant.\\nKurt W. Hall, Assistant Prosecuting Attorney, Harrison County Prosecuting Attorney\\u2019s Office, Clarksburg, for the Appellee.\", \"word_count\": \"4427\", \"char_count\": \"26253\", \"text\": \"DAVIS, Justice:\\nIn this criminal appeal, David Gabriel Stamm, appellant, and defendant below (hereinafter \\\"Mr. Stamm\\\"), was convicted of the felony offense of failure to meet an obligation to provide support to a minor in violation of W. Va.Code \\u00a7 61-5-29 (1999) (Repl. Vol.2005). On appeal, Mr. Stamm argues that W. Va.Code \\u00a7 61-5-29 unconstitutionally shifts the burden of proof to the defendant with respect to a material element of the offense. We agree, and therefore reverse his conviction and sentence, and remand this case for a new trial.\\nI.\\nFACTUAL AND PROCEDURAL HISTORY\\nIn March 2004, the Family Court of Harrison County, West Virginia, rendered a \\\"Child Support and Custody Order\\\" in which it found that Mr. Stamm had acknowledged that he is the father of E.S., who was born on August 15, 2000, and further concluded that Mr. Stamm is, in fact, the father of E.S. The order further directed Mr. Stamm to pay monthly child support in the amount of $167.52. Thereafter, on October 30, 2005, Rebecca Roth, the mother of E.S. and Mr. Stamm's former girlfriend, filed a complaint with the Harrison County Sheriffs Department alleging that Mr. Stamm had not paid his monthly child support obligation during the period from October 1, 2004, through the date of the complaint.\\nMr. Stamm was arrested on December 22, 2005, and charged with the offense of failure to meet an obligation to provide support to a minor in violation of W. Va.Code \\u00a7 61-5-29. In May 2006, he was indicted on the same charge. Prior to trial, Mr. Stamm filed a \\\"Motion to Dismiss Indictment\\\" arguing that W. Va.Code \\u00a7 61-5-29 is unconstitutional. The trial court denied the motion, and a jury trial followed. Mr. Stamm asserted, as an affirmative defense, his inability to reasonably provide the required support. At the close of the State's ease in chief, Mr. Stamm made a motion for judgment of acquittal arguing that the State had failed to demonstrate that he had the ability to pay his court-ordered child-support obligation. The trial court denied the motion. Mr. Stamm then presented evidence in his defense to establish his inability to pay. At the end of all the evidence, Mr. Stamm again made a motion for judgment of acquittal. This motion was also denied by the trial court.\\nThe jury ultimately returned a verdict finding Mr. Stamm guilty of the sole felony count of the indictment, i.e., failure to meet an obligation to provide support to a minor. On July 28, 2006, Mr. Stamm was sentenced to a prison term of not less than one nor more than three years. He was also ordered to pay the costs of the proceedings, to make restitution to the State of West Virginia in the amount of $1,864,00, and to make restitution to Rebecca Roth in the amount of $7,386.00. The sentencing order was entered on August 11, 2006. Subsequently, Mr. Stamm's trial counsel left the employ of the Public Defender Corporation, and new counsel was assigned. On November 9, 2006, Mr. Stamm filed a motion to extend his time to file an appeal. The trial court granted the motion. Then, in December 2006, Mr. Stamm's counsel discovered that a \\\"Notice of Intent to File Appeal\\\" had not been filed in this matter. Accordingly, counsel filed a motion asking the trial court to resentence Mr. Stamm. The motion was granted, and Mr. Stamm was resentenced by order' entered December 13, 2006. This appeal followed.\\nII.\\nSTANDARD OF REVIEW\\nIn this criminal case, we are asked to determine the constitutionality of W. Va. Code \\u00a7 61-5-29. This presents a question of law, which we review de novo. \\\" Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.' Syllabus point 1, Crystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).\\\" Syl. pt. 1, State v. Paynter, 206 W.Va. 521, 526, 526 S.E.2d 43 S.K.2d 43 (1999).\\nIll\\nDISCUSSION\\nMr. Stamm argues that W. Va.Code \\u00a7 61-5-29 unconstitutionally shifts the burden of proof to the defendant with respect to the material element of the offense requiring an ability to pay, thereby violating his right to due process. We agree.\\nWe have previously observed that \\\"[i]t is a foundation of criminal law that '[t]he State must prove all the elements of a crime beyond a reasonable doubt.' \\\" State v. Joseph, 214 W.Va. 525, 529, 590 S.E.2d 718, 722-23 (2003) (quoting State v. Less, 170 W.Va. 259, 264, 294 S.E.2d 62, 66 (1981); and citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Pinkerton v. Farr, 159 W.Va. 223, 220 S.E.2d 682 (1975)).\\nAdditionally, \\\"[t]his Court, as well as the United States Supreme Court, has made clear that 'a defendant can be required to prove the affirmative defenses that he [or she] asserts.' \\\" State v. Cook, 204 W.Va. 591, 600, 515 S.E.2d 127, 136 (1999) (citing State v. Daniel, 182 W.Va. 643, 652, 391 S.E.2d 90, 99 (1990), and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)). However, the requirement that a defendant prove an affirmative defense is not without limitation. \\\"A defendant is required to present evidence on the affirmative defenses asserted as long as the State does not shift to the defendant the burden of disproving any element of the State's case.\\\" Syl. pt. 5, State v. Daniel, 182 W.Va. 643, 391 S.E.2d 90 (1990) (emphasis added). In this way, the burden properly remains on the State to prove the elements of the crime charged beyond a reasonable doubt:\\nIt is well established that the prosecution must prove every element of the crime charged beyond a reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Therefore, . placing] any part of this burden upon a criminal defendant is an improper shifting of the burden of proof.\\nState v. Daniel, 182 W.Va. 643, 652, 391 S.E.2d 90, 99 (1990). See also State v. Pendry, 159 W.Va. 738, 753-54, 227 S.E.2d 210, 220 (1976) (\\\"We are content to say that Mullaney [v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975),] stands for the following general propositions: (1) In a criminal case, the State is required to carry the burden of proving beyond a reasonable doubt every material element of the crime with which the defendant is charged; (2) In carrying its burden of proof beyond a reasonable doubt, the State is not entitled to an instruction which requires a jury to accept as proved beyond a reasonable doubt any element of the criminal offense charged, and this concept embraces presumptions (more properly inferences) as to which the jury may be instructed; and (3) A defendant in a criminal case cannot be required to present evidence either in terms of going forward with the evidence or in terms of bearing the burden of persuasion in connection with any material element of the crime charged.\\\"), overruled in part on other grounds by Jones v. Warden, West Virginia Penitentiary, 241 S.E.2d 914, 161 W.Va. 168 (1978).\\nThe crime of which Mr. Stamm was convicted is found at W. Va.Code \\u00a7 61-5-29, which states in relevant part:\\n(2) A person who persistently fails to provide support which he or she can reasonably provide and which he or she knows he or she has a duty to provide to a minor by virtue of a court or administrative order and the failure results in: (a) An arrearage of not less than eight thousand dollars; or (b) twelve consecutive months without payment of support, is guilty of a felony and, upon conviction thereof, shall be fined, not less than one hundred dollars nor more than one thousand dollars, or imprisoned for not less than one year nor more than three years, or both fined and imprisoned.\\n(3) In a prosecution under this section, the defendant's alleged inability to reasonably provide the required support may be raised only as an affirmative defense, after reasonable notice to the state.\\n(Emphasis added).\\nAs Mr. Stamm correctly observes, the foregoing statute includes a reasonable ability to provide support not only as an element of the crime, but also as an affirmative defense. A statute similar to this was addressed by the Court of Criminal Appeals of Texas in the ease of Lowry v. State, 692 S.W.2d 86 (1985). The relevant portion of the statute involved in Lowry provided\\n\\\"(a) An individual commits an offense if he intentionally or knowingly fails to provide support that he can provide and that he was legally obligated to provide for his children younger than 18 years, or for his spouse who is in needy circumstances.\\n(f) It is an affirmative defense to prosecution under this section that the actor could not provide the support that he was legally obligated to provide.\\\"\\nId. at 86 (quoting V.T.C.A. Penal Code, \\u00a7 25.05) (emphasis added). After reviewing the United States Supreme Court's holdings in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508, along with relevant state law, the Texas court concluded:\\nIn the instant case, \\u00a7 25.05 requires that, as an element of the offense, the State must prove the defendant's ability to provide support. Subsection (f) then requires the defendant to prove his inability to provide support as an affirmative defense. Despite the statute's use of the term \\\"'affirmative defense,'\\\" \\u00a7 25.05(f) serves to shift to the defendant the burden of disproving an element of the offense, thereby depriving the defendant of his right of due process.\\nLowry, 692 S.W.2d at 87.\\nIn deciding the constitutionality of W. Va.Code \\u00a7 61-5-29(2) & (3), we are mindful that \\\"[i]n considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches_\\\" Syl. pt. 1, in part, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965). Furthermore, \\\"[a]cts of the Legislature are always presumed to be constitutional, and this Court will interpret legislation in any reasonable way which will sustain its constitutionality.\\\" State ex rel. City of Charleston v. Coghill, 156 W.Va. 877, 883, 207 S.E.2d 113, 118 (1973). See also State v. Flinn, 158 W.Va. 111, 129, 208 S.E.2d 538, 548 (1974) (\\\"The general rule, promulgated both by the Supreme Court of the United States and this Court, requires resort to every reasonable construction to sustain constitutionality.\\\" (citing United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); Fox v. Washington, 236 U.S. 273, 35 S.Ct. 383, 59 L.Ed. 573 (1915); and Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967))).\\nThe forgoing principles of statutory construction notwithstanding, based upon our review of prior case law as set out above, and our consideration of W. Va.Code \\u00a7 61-5-29(2) & (3), we find that, like the statute at issue in Lowry, W. Va.Code \\u00a7 61-5-29(3) unconstitutionally shifts to a defendant the burden of disproving an element of the offense defined therein, and therefore violates the due process clauses found in Article III, Section 10, of the Constitution of West Virginia, and the Fourteenth Amendment to the United States Constitution.\\nHaving determined that W. Va.Code \\u00a7 61-5-29(3) violates due process, we must now consider principles of statutory severability in order to decide whether the entire statute, or merely subsection (3), must be declared unconstitutional.\\nWith respect to the issue of severability, this Court has held,\\nA statute may contain constitutional and unconstitutional provisions which may be perfectly distinct and separable so that some may stand and the others will fall; and if, when the unconstitutional portion of the statute is rejected, the remaining portion reflects the legislative will, is complete in itself, is capable of being executed independently of the rejected portion, and in all other respects is valid, such remaining portion will be upheld and sustained.\\nSyl. pt 6, State v. Heston, 137 W.Va. 375, 71 S.E.2d 481 (1952). Accord Louk v. Cormier, 218 W.Va. 81, 96-97, 622 S.E.2d 788, 803-04 (2005); Syl. pt. 3, Frantz v. Palmer, 211 W.Va. 188, 564 S.E.2d 398 (2001); Syl. pt. 7, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538.\\nWith respect to the foregoing analysis, this Court has explained that\\n[t]he most critical aspect of severability analysis involves the degree of dependency of statutes. Thus, \\\"[wjhere the valid and the invalid provisions of a statute are so connected and interdependent in subject matter, meaning, or purpose as to preclude the belief, presumption or conclusion that the Legislature would have passed the one without the other, the whole statute will be declared invalid.\\\" Syl. pt. 9, Robertson v. Hatcher, 148 W.Va. 239, 135 S.E.2d 675 (1964).\\nLouk v. Cormier, 218 W.Va. 81, 97, 622 S.E.2d 788, 804. We find that W. Va.Code \\u00a7 61-5-29 does not meet the foregoing criteria that would require us to declare the entire statute unconstitutional. Rather, subsections (1) and (2) of W. Va.Code \\u00a7 61-5-29 set out complete criminal offenses that are independent from the affirmative defense established in W. Va.Code \\u00a7 61-5-29(3). See Lowry v. State, 692 S.W.2d at 88 (\\\"[W]e hold that \\u00a7 25.05 is unconstitutional only insofar as it shifts the burden of disproving an element of the offense to the defendant vis-a-vis subsection (f). We therefore sever from the statute the offending provision.\\\" (footnote omitted)). Accordingly, we now hold that, insofar as W. Va.Code \\u00a7 61-5-29(3) (1999) (Repl.Vol.2005) shifts to a defendant the burden of disproving a material element of the State's case, in violation of the due process clauses found in Article III, Section 10, of the Constitution of West Virginia, and the Four teenth Amendment to the United States Constitution, that individual provision, severed from the remainder of W. Va.Code \\u00a7 61-5-29, is unconstitutional and unenforceable. W. Va.Code \\u00a7 61-5-29(1) and (2) remain fully enforceable.\\nThe State responds that, even if the statute is unconstitutional, the error in this instance was harmless because the jury instruction did not shift the burden of proof. Indeed, this Court has held that \\\"[fjailure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt.\\\" Syl. pt. 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975) (emphasis added).\\nThe jury in this case was instructed, in relevant part, as follows:\\nThe Court instructs the jury that where a person is charged with and on trial for an offense of failure to meet an obligation to provide support to a minor, and that person offers in his defense evidence for the purpose of providing [sic] that he lacked the ability to reasonably provide the support at the time the offense is alleged to have been committed, such a defense in law is called inability to pay. The court instructs the jury that where the accused relies upon an inability to pay in his defense, the jury should consider such evidence. If the evidence of inability to pay creates a reasonable doubt in the minds of the jury whether the accused could reasonably provide the support obligation at the time alleged in the Indictment, then the jury must return a verdict of not guilty.\\nAs the State points out, this instruction is not phrased in the same manner as W. Va.Code \\u00a7 61-5-29(3) in that it does not expressly identify the defense of inability to pay as an affirmative defense. The instruction also informs the jury that the defendant's burden is merely to create a reasonable doubt. Nevertheless, we do find the instruction troubling. Although the juiy was advised in separate instructions that \\\"it must be satisfied of the defendant's guilt beyond a reasonable doubt,\\\" and that the State was required to prove each element of the offense beyond a reasonable doubt, the instruction pertaining to the defense of inability to pay did not make absolutely clear that the burden remained on the State to prove, beyond a reasonable doubt, Mr. Stamm's ability to pay. Therefore, we believe that the instruction could have misled the jury into believing that Mr. Stamm bore the burden of proof as to his ability to pay support.\\nIn the case of Montana v. Price, 312 Mont. 458, 59 P.3d 1122 (2002), the Supreme Court of Montana reached a similar conclusion. In Price, the court was asked to determine whether an instruction containing the following language had impermissibly shifted the burden of proof on an essential element of the offense to the defendant: \\\" 'If a defense to the charge of nonsupport is inability to pay, the person's inability must be the result of circumstances over which the person had no control.\\\" 312 Mont. at 466-67, 59 P.3d at 1128. After observing that \\\" 'whether a defendant has been accorded his constitutional rights depends on the way in which a reasonable juror could have interpreted the instruction,' \\\" the court stated\\n[w]hile the District Court's Instruction No. 7 did not expressly shift the burden of proving those facts to Price, we conclude that its wording and specifically its reference to inability as a \\\"defense\\\" could have been misleading regarding the State's burden and, therefore, direct that on re-trial Instruction No. 7 not be given in its current form.\\n312 Mont, at 467, 59 P.3d at 1128 (quoting Sandstrom v. Montana, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979)).\\nBecause we believe that the instructions provided in this case could have misled the jury into believing that Mr. Stamm bore the burden of proof as to his ability to pay support, we reject the State's argument that the instruction cured the unconstitutional burden-shifting of W. Va.Code \\u00a7 61-5-29(3), and rendered that error harmless. See State v. Jenkins, 191 W.Va. 87, 99, 443 S.E.2d 244, 256 (1994) (\\\"It cannot be said beyond a reasonable doubt that the unconstitutional instruction could not have contributed to the verdict of first degree murder without a recommendation of mercy.\\\"); Angel v. Mohn, 162 W.Va. 795, 798, 253 S.E.2d' 63, 66 (1979) (\\\"[A]n instructional error which unconstitutionally shifts the burden of proof of an essential element of the crime to the defendant, causing a serious question about the accuracy of the guilty verdict, is not an error that did not contribute to the guilty verdict.\\\"). Therefore, Mr. Stamm's conviction and sentencing are reversed, and this case is remanded for a new trial. See, e.g., State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983) (remanding for new trial where alibi instruction improperly shifted burden of proof to defendant). See a,Iso Illinois v. Pomykala, 203 Ill.2d 198, 271 Ill.Dec. 230, 784 N.E.2d 784 (2003) (affirming appellate court judgment remanding for new trial where burden of proof had been unconstitutionally shifted to defendant); Iowa v. Quinn, 691 N.W.2d 403 (2005) (remanding for new findings and conclusions after burden improperly shifted to defendant during bench trial); New York v. Chester, 50 N.Y.2d 203, 428 N.Y.S.2d 639, 406 N.E.2d 455 (1980) (acknowledging that defendant would be retried in case where burden of proof had been impermissibly placed on defendant with respect to affirmative defense).\\nIV.\\nCONCLUSION\\nFor the reasons stated in the body of this opinion, Mr. Stamm's conviction and sentence are reversed, and this case is remanded for a new trial consistent with this opinion.\\nReversed and Remanded.\\n. \\\"As is our customary practice in cases involving minors, we will refer to the [child] by [his] initials rather than by [his] full name[ ]. See. e.g., In re Cesar L\\\" 221 W.Va. 249, 252 n.l, 654 S.E.2d 373, 376 n.l (2007).\\\" Soulsby v. Soulsby, 222 W.Va. 236, 239 n.2, 664 S.E.2d 121, 124 n.2 (2008).\\n. The case number designated on the support order is 03-D-544-4.\\n. We summarily reject Mr. Stamm's argument that the circuit court erred by denying his motions for judgment of acquittal made at the close of the State's case and again at the end of the evidence. See W. Va. R.Crim. P. 29(a). We find that the evidence presented by the State , was sufficient to submit this case to the jury.\\n. This due process requirement has been summarized thusly:\\nThe prosecution may not pass to the defendant die burden of proving a material element of the offense. In Morris [v. Maryland, 715 F.2d 106 (4th Cir.1983) ], the court stated that the Fourteenth Amendment requires that the state shoulder the responsibility and burden of proving beyond a reasonable doubt all of the elements of a crime. Specifically, the court found that the defendant has no burden of proving mitigation, excuse, or justification in a first degree murder case. The prosecutor's comment indicating the defendant failed to prove a point raised by the defendant did not imper-missibly shift the burden of proof to the defendant.\\nNeither Pendiy nor Mullaney should be construed as suggesting that the due process clause imposes a constitutional limitation on the state or federal government to require the defendant to bear the burden of proving affirmative defenses. In Pendiy, the court specifically held that the burden of proof of affirmative defenses such as insanity, alibi, and self-defense could be placed on tlte defendant as long as the jury is told that this burden does not relieve the prosecution from the obligation to prove every material element of the crime beyond a reasonable doubt. Specifically, the court in Pendiy stated:\\n[T]hese and other defenses are not invalidated by Mullaney so long as the Slate is not relieved of the ultimate burden of proving beyond a reasonable doubt every material element of the crime. If a defendant is not put in the position of being required to rebut the State's case by the introduction of evidence, he cannot claim any constitutional infirmity. When, however, he elects to take advantage of any authorized defense under the law of this State, he may be required to carry' a burden of going forward with the evidence and carrying a burden of persuasion to a degree not greater than by a preponderance of the evidence. The State is entitled to define the burden which he must carry if his particular defense is to be sustained, provided that this does not lessen the burden of the State to prove every material element of the crime beyond a reasonable doubt.\\nFranklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers \\u00a7 12 \\u2014 2(A)(3), at 12-19 & 12-20 (4th ed.2000) (footnotes omitted) (quoting State v. Pendry, 159 W.Va. 738, 756, 227 S.E.2d 210, 221 (1976)).\\n. Pursuant to Article III, Section 10, of the Constitution of West Virginia, \\\"[n]o person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers.\\\"\\n. The Fourteenth Amendment to the United States Constitution states, in relevant part,\\nAll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States: nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.\\n. This analysis is proper even in the absence of a statutory severability clause. See State ex rel. State Bldg. Comm'n v. Bailey, 151 W.Va. 79, 93, 150 S.E.2d 449, 457 (1966) (\\\"The principle is well settled by many decisions of this Court that a statute . may contain both constitutional and unconstitutional provisions which in substance are distinct and separable so that some may stand though others must fall. And this is tme whether or not the statute in question contains a separability clause.\\\" (emphasis added) (citations omitted)).\\n. W. Va.Code \\u00a7 61-5-29(1) sets out the misdemeanor offense of failure to provide support to a minor as follows:\\nA person who: (a) Persistently fails to provide support which he or she can reasonably provide and which he or she knows he or she has a duty to provide to a minor; or (b) is subject to court order to pay any amount for the support of a minor child and is delinquent in meeting the full obligation established by the order and has been delinquent for a period of at least six months' duration, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars, or confined in the county or regional jail for not more than one year, or both fined and confined.\\n.W. Va.Code \\u00a7 61-5-29(2) sets out the felony offense of failure to provide support to a minor as follows:\\nA person who persistently fails to provide support which he or she can reasonably provide and which he or she knows he or she has a duty to provide to a minor by virtue of a court or administrative order and the failure results in: (a) An arrearage of not less than eight thousand dollars; or (b) twelve consecutive months without payment of support, is guilty of a felony and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned for not less than one year nor more than three years, or both fined and imprisoned.\\n. Accord State v. O'Connell, 163 W.Va. 366, 370, 256 S.E.2d 429, 431 (1979) (\\\"The timely Sand-strom decision reinforces our conclusion by establishing the following guiding principle: 'Whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction,' and '[t]hat determination requires careful attention to the words actually spoken to the jury.' \\\" (quoting Sandstrom v. Montana, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979))).\"}"
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+"{\"id\": \"8338759\", \"name\": \"JOE ZIRK VS. STATE RAIL AUTHORITY\", \"name_abbreviation\": \"Zirk v. State Rail Authority\", \"decision_date\": \"2003-10-30\", \"docket_number\": \"CC-03-419\", \"first_page\": \"56\", \"last_page\": \"56\", \"citations\": \"25 Ct. Cl. 56\", \"volume\": \"25\", \"reporter\": \"Report of the West Virginia Court of Claims\", \"court\": \"West Virginia Court of Claims\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T00:49:36.680709+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOE ZIRK VS. STATE RAIL AUTHORITY\", \"head_matter\": \"OPINION ISSUED OCTOBER 30, 2003\\nJOE ZIRK VS. STATE RAIL AUTHORITY\\n(CC-03-419)\\nClaimant appeared pro se.\\nJohn S. Dalporto, Senior Assistant Attorney General, for respondent.\", \"word_count\": \"158\", \"char_count\": \"974\", \"text\": \"PER CURIAM:\\nThis claim was submitted for decision based upon the allegations in the Notice of Claim and respondent's Answer.\\nClaimant seeks $1,765.00 forpersonal property damage caused when respondent was using a tamper on a railroad near claimant's home and a hydraulic hose burst on the machine and sprayed hydraulic fluid on claimant's property located in Moorefield, Hardy County.\\nIn its Answer, respondent admits the validity of the claim and that the amount is fair and reasonable. The Court is aware that respondent does not have a fiscal method for paying claims of this nature; therefore, the claim has been submitted to this Court for determination.\\nIn view of the foregoing, the Court is of the opinion to and does make an award to claimant in the amount of $1,765.00.\\nAward of $ 1,765.00.\"}"
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+"{\"id\": \"8367559\", \"name\": \"Samantha SELLS, Plaintiff Below, Appellant, v. Arnold Ray THOMAS, Kenneth R. Chittum, and State Farm Mutual Automobile Insurance Company, Defendants Below, Appellees\", \"name_abbreviation\": \"Sells v. Thomas\", \"decision_date\": \"2006-11-09\", \"docket_number\": \"No. 32969\", \"first_page\": \"136\", \"last_page\": \"141\", \"citations\": \"220 W. Va. 136\", \"volume\": \"220\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T17:07:06.279964+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Samantha SELLS, Plaintiff Below, Appellant, v. Arnold Ray THOMAS, Kenneth R. Chittum, and State Farm Mutual Automobile Insurance Company, Defendants Below, Appellees.\", \"head_matter\": \"640 S.E.2d 199\\nSamantha SELLS, Plaintiff Below, Appellant, v. Arnold Ray THOMAS, Kenneth R. Chittum, and State Farm Mutual Automobile Insurance Company, Defendants Below, Appellees.\\nNo. 32969.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted Sept. 6, 2006.\\nDecided Nov. 9, 2006.\\nFrank Venezia, Esq., Shaffer & Shaffer, PLLC, Madison, for Appellant.\\nGregory S. Matney, Esq., Tazewell, VA, for Appellee.\", \"word_count\": \"2909\", \"char_count\": \"17730\", \"text\": \"PER CURIAM.\\nIn the instant case, the appellant, Samantha Sells, appeals the Circuit Court of Mercer County's May 11, 2005, order granting summary judgment in favor of the appellee, Kenneth Chittum. Ms. Sells filed a legal malpractice action against Mr. Chittum following his representation of her in a personal injury case. The circuit court found that Ms. Sells was unable to prove that she suffered a loss as a result of Mr. Chittum's actions. Thus, the circuit court granted Mr. Chittum's motion for summary judgment.\\nIn this appeal, Ms. Sells contends that because of Mr. Chittum's conduct, she was forced to settle her underinsured motorist claim in the underlying personal injury action which limited her recovery of damages. Therefore, she argues that the circuit court's summary judgment order was improper. After reviewing the facts of the case, the issues presented, and the relevant statutory and case law, this Court reverses the decision of the circuit court.\\nI.\\nFACTS\\nOn April 21, 2000, the appellant, Samantha Sells, was a guest passenger on a motorcycle driven by Billy Ray Lewis Jr., traveling on Route 102 in Mercer County, West Vix-ginia. The motorcycle was involved in an accident with a Ford F-150 truck driven by Arnold Thomas, when Thomas cut across and in front of the motorcycle. As a result of the accident, Ms. Sells suffered multiple injuries and was left with a permanent limp. Soon thereafter, Ms. Sells retained the appellee, Kenneth E. Chittum, to represent her for her claims against Mr. Lewis and Mr. Thomas. Ms. Sells settled her claims with Mi-. Thomas' insurance carrier, Nationwide Insurance Company, for $24,300 while the other claimants split the balance of Mr. Thomas' $50,000 liability policy limits.\\nOn July 6, 2000, with Mr. Chittum present, a Nationwide insurance adjuster interviewed Ms. Sells wherein she told the adjustor she was also covered by her father's insurance. Mr. Chittum was also informed by a claims representative for State Farm Insurance Company that Ms. Sells was entitled to medical payments coverage under a policy issued to her parents. Mr. Chittum later received a check from State Farm for medical payments benefits under Ms. Sells' parents' policy. Ms. Sells, however, contends that Mr. Chit-tum failed to investigate or pursue an under-insured motorist claim on her behalf under her parents' State Farm policy which contained underinsured motorist coverage in the amount of $75,000.\\nOn January 23, 2001, Mr. Chittum completed the settlement with Mr. Thomas' insurer, and on February 6, 2002, Ms. Sells terminated her representation by Mr. Chit-tum and retained her current counsel, Frank Venezia. On March 14, 2002, on behalf of Ms. Sells, Mr. Venezia filed an action against Mr. Chittum for professional negligence and against State Farm for underinsured motorist coverage. At that time, the statute of limitations on further claims had not run. While her parents' underinsured policy limit was $75,000, Ms. Sells settled her claim for $50,000. Ms. Sells maintains that she was forced to settle for a lesser amount than she was entitled due to the professional negligence of Mr. Chittum in failing to investigate and determine whether she was eligible for underinsured motorist benefits under her parents' policy prior to settling her claim against Mr. Thomas.\\nOn May 11, 2005, the Circuit Court of Mercer County granted Mr. Chittum's motion for summary judgment. Ms. Sells subsequently appealed the circuit court's order.\\nII.\\nSTANDARD OF REVIEW\\nMs. Sells contends that the circuit court erred in granting summary judgment to Mr. Chittum. In Syllabus Point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), this Court stated that \\\"[a] circuit court's entry of summary judgment is reviewed de novo.\\\" Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, summary judgment is required when the record shows that there is \\\"no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\\\" In Syllabus Point 3 of Aetna Casualty & Stirety Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963), this Court held: \\\"A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.\\\"\\nMoreover, \\\"[s]ummary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.\\\" Syllabus Point 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). In addition, \\\"[i]f the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure.\\\" Syllabus Point 3,Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). With these standards in mind, we proceed to consider Ms. Sells' arguments.\\nIII.\\nDISCUSSION\\nThe issue in this appeal is whether the circuit court's granting of Mr. Chittum's motion for summary judgment was appropriate. Ms. Sells argues that summary judgment was not proper. She believes that Mr. Chit-tum's settlement on her behalf with the tort- feasor necessarily prejudiced her pursuit of underinsured motorist coverage and resulted in a denial of her ability to receive a fair adjudication in her underlying case. She contends that genuine issues of material fact exist which must be resolved by a jury.\\nMs. Sells explains that she was forced to settle her underinsured coverage claim with State Farm Insurance for less money than she was entitled to receive due to Mr. Chit-tum's negligence. Mr. Venezia, who replaced Mr. Chittum as Ms. Sells' counsel, filed the subsequent lawsuit in this case against Mr. Chittum. In that lawsuit, Mr. Venezia included a declaratory action against State Farm asking the circuit court to determine that State Farm was required to provide Ms. Sells with underinsured motorist coverage. State Farm then filed a motion for summary judgment in which it argued that Ms. Sells was not entitled to coverage due to Mr. Chittum's breach of contract in settling Ms. Sells' earlier claim with Nationwide in violation of State Farm's policy exhaustion clause.\\nState Farm maintained in its motion for summary judgment that Mr. Chittum's settlement and subsequent release of the tort-feasor prejudiced its subrogation rights. State Farm also argued that Virginia law should have applied to Ms. Sells' underin-sured motorist claim because the State Farm policy was executed in Virginia, to be performed in Virginia, and the principal risk was garaged in Virginia. State Farm declared that under Virginia's laws, the settlement of the underlying claim against the tortfeasor by Mr. Chittum without notifying State Farm of the settlement was not only a violation of the policy exhaustion clause, but it prejudiced State Farm's subrogation rights and destroyed its duty of coverage whether there was any prejudice to the insurer or not.\\nDuring the hearing on State Farm's motion for summary judgment, the circuit judge stated that if he determined that Virginia law was to be applied to Ms. Sells' case then State Farm's motion would be granted denying any coverage to Ms. Sells. Soon after that hearing, Ms. Sells settled her claim with State Farm for $50,000, which was $25,000 less than the policy limit. Ms. Sells argues that she was forced to settle because she ran the risk of receiving an adverse ruling from the circuit court on State Farm's summary judgment motion which would have resulted in no coverage for her injuries. She further points out that this would not have been an issue had it not been for Mr. Chittum's negligent handling of her ease due to his failure to investigate and determine whether she was eligible for underinsured motorist benefits prior to completing his settlement with Nationwide.\\nConversely, Mr. Chittum responds that the circuit court correctly granted his motion for summary judgment and properly determined that Ms. Sells was required to prove her loss beyond simple speculative assertions. He states that the circuit court explained that Ms. Sells settled her claim for $50,000 under a policy with a limit of $75,000 and that it was beyond the court to speculate whether a jury would have awarded her the full policy limits. Mr. Chittum further maintains that Ms. Sells was not forced to settle her claim against State Farm. He explains that on February 6, 2002, Ms. Sells signed a release of Mr. Chittum as counsel in her case, and in that release, in bold print, he plainly urged her to seek legal counsel prior to the running of the statute of limitations for any other claims that she may have had surrounding the accident. Mr. Chittum points out that Ms. Sells could have easily refused to sign the release provided to her. Likewise, Mr. Chittum contends that Ms. Sells' argument is without merit because she terminated his employment and hired Mr. Venezia before her claim was barred by the statute of limitations. Accordingly, Mr. Chittum states that there is no evidence that he committed professional negligence.\\nAfter fully reviewing the evidence, we believe that the circuit court erred in granting summary judgment to Mr. Chittum. In Syllabus Point 1 of Calvert v. Scharf, 217 W.Va. 684, 619 S.E.2d 197 (2005), we explained that: \\\"Generally, in a suit against an attorney for negligence, the plaintiff must prove three things in order to recover: (1) the attorney's employment; (2) his/her neglect of a reasonable duty; and (3) that such negligence resulted in and was the proximate cause of loss to the plaintiff.\\\" See also Keister v. Talbott, 182 W.Va. 745, 748-749, 391 S.E.2d 895, 898-899 (1990) (citations omitted); Sheetz, Inc. v. Bowles Rice McDavid Graff & Love, PLLC, 209 W.Va. 318, 333 n. 13, 547 S.E.2d 256, 271 n. 13 (2001) (same); Armor v. Lantz, 207 W.Va. 672, 681, 535 S.E.2d 737, 746 (2000) (same); McGuire v. Fitzsimmons, 197 W.Va. 132, 136-137, 475 S.E.2d 132, 136-137 (1996) (same).\\nMoreover, we have held that \\\"[i]n an attorney malpractice action, proof of the attorney's negligence alone is insufficient to warrant recovery; it must also appeal' that the client's damages are the direct and proximate result of such negligence.\\\" Syllabus Point 2, Keister v. Talbott, 182 W.Va. 745, 391 S.E.2d 895 (1990). Thus, in order to prevail in a malpractice action against a lawyer, the plaintiff must establish not only his or her damages, but must additionally establish that, but for the negligence of the lawyer, he or she would not have suffered those damages.\\nIn Syllabus Point 3 of Keister we further explained that \\\"[djamages arising from the negligence of an attorney are not presumed, and a plaintiff in a malpractice action has the burden of proving both his loss and its causal connection to the attorney's negligence.\\\" 182 W.Va. 745, 391 S.E.2d 895. Without the requisite causal connection between an attorney's malpractice and a loss to the client, a malpractice case simply cannot go forward. See, e.g., Harrison v. Casto, 165 W.Va. 787, 271 S.E.2d 774 (1980) (finding no error in lower court's dismissal of case alleging malpractice against an attorney who failed to file a complaint on behalf of client upon finding that, although the attorney did not file a complaint, the client had not been harmed by the failure since the statute of limitations on that action had not run at the time the malpractice action had been instituted).\\nIn this case, the attorney's employment is not an issue. Ms. Sells directly hired Mr. Chittum to represent her. Secondly, Ms. Sells has presented evidence to prove that Mr. Chittum neglected a reasonable duty when he settled with Nationwide Insurance without investigating or pursuing an underinsured motorist claim on her behalf. In that regard, the evidence shows that Mr. Chittum was aware of the State Farm policy prior to settling Ms. Sells' claim with Nationwide against the tortfeasor. Moreover, it is undisputed that the settlement with Nationwide was in violation of State Farm's policy exhaustion clause. Thus, Mr. Chittum's release of the tortfeasor when he executed the settlement with Nationwide prejudiced State Farm's subrogation rights. Such action necessarily affected a later settlement with State Farm due to the fact that Ms. Sells was in violation of State Farm's policy the moment Mr. Chittum settled the claim with the tortfeasor.\\nFinally, Ms. Sells must prove that she suffered loss that was caused by Mr. Chit-tum's actions. In that regard, Ms. Sells contends that by settling her claim against Mr. Thomas, Mr. Chittum jeopardized her claim against State Farm. As a result, in order to secure some recovery, she settled her under-insured motorist claim for $50,000, $25,000 less than the policy limit. Thus, she reasons that she suffered a loss as a result of Mr. Chittum's conduct.\\nBy contrast, Mr. Chittum argues that Ms. Sells' claims are speculative and that she cannot prove that she would have received a greater damage award had the underinsured claim been pursued prior to settlement with Mr. Thomas. Mr. Chittum says that given Ms. Sells' settlement with State Farm, there is simply no way to prove any negligence on Lis part that caused Ms. Sells to suffer a loss.\\nWe disagree. In Better Homes, Inc. v. Rodgers, 195 F.Supp. 93 (N.D.W.Va.1961), the District Court, applying West Virginia law, discussed the compelling reasons why damages of this type are not speculative. Better Homes was an action against the plaintiffs former attorneys who lost a property damage negligence case brought by a customer and failed to appeal within the applicable time period. The attorneys argued that the plaintiffs loss was too speculative. In rejecting this argument the court held:\\nIf it should be the law that the necessity of undertaking the functions of the Supreme Court of Appeals, in the limited sense hereinbefore outlined, renders the proof of damages too remote, speculative and uncertain to receive cognizance, it is apparent that no lawyer can ever be held financially responsible for admitted negligence in fading to perfect an appeal from a judgment adverse to his client. I do not believe that this is or should be the law.\\nHaving reviewed the record in this case, we believe that genuine issues of material fact exist with regard to whether Mr. Out-turn's failure to pursue the underinsured motorist claim prior to settlement with the tortfeasor caused Ms. Sells to suffer a loss constituting legal malpractice. It is undisputed that Ms. Sells was seriously injured in this accident. She demonstrated approximately $85,000 in medical expenses and was left with a permanent limp. It is clear that she suffered multiple injuries including back injuries, multiple contusions, a severely com-minuted open knee laceration with disruption of the quadriceps, and an intra-articular fracture of the right ankle. We believe that given the opportunity, Ms. Sells may have been able to present compelling evidence to State Farm that her claim was worth $75,000 in underinsured motorist coverage. Thus, as a consequence of Mr. Chittum's' handling of this case, Ms. Sells was denied the opportunity to present such evidence to a jury for a fair adjudication of her case. As such, the order of the circuit court of Mercer County is reversed, and this case is remanded for further proceedings consistent with this opinion.\\nIV.\\nCONCLUSION\\nAccordingly, for the reasons set forth above, the final order of the Circuit Court of Mercer County entered on May 11, 2005, is \\u2022 reversed.\\nReversed.\\n. The release signed by Ms. Sells provided the following:\\nI, Samantha Sells do hereby terminate the representation of Kenneth E. Chittum, Attorney at Law from representing me in my accident case that occurred on April 1st, 2000. Further, I have been advised that there may be a claim against other Insurance carriers for underinsured/uninsured claims/ these claims MUST BE FILED BEFORE APRIL 1ST 2002. Or these potential claims may never be filed. You will lose your right to file them. I have been STRONGLY ADVISED TO SEEK ANOTHER ATTORNEY IMMEDIATELY!\\nBy the termination of this Attorney client relationship I realize that Kenneth E. Chittum shall have no further responsibility in this case. I also acknowledge the receipt of my entire file on this 6 day of Feb. 2002.\\n. In a separate issue, Ms. Sells states that summary judgment was not appropriate due to the fact that she did not have adequate time for discovery. While we have reviewed the facts of this case and believe that there was adequate time for discovery for both parties, the issue is moot given the fact that we are reversing the circuit court's grant of summary judgment to Mr. Chittum.\"}"
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+"{\"id\": \"8368426\", \"name\": \"Nancy K. HUDKINS, Petitioner Below, Appellee, v. STATE OF WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD, Respondent Below, Appellant\", \"name_abbreviation\": \"Hudkins v. State Consolidated Public Retirement Board\", \"decision_date\": \"2007-06-13\", \"docket_number\": \"No. 33245\", \"first_page\": \"275\", \"last_page\": \"282\", \"citations\": \"220 W. Va. 275\", \"volume\": \"220\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T17:07:06.279964+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Nancy K. HUDKINS, Petitioner Below, Appellee, v. STATE OF WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD, Respondent Below, Appellant.\", \"head_matter\": \"647 S.E.2d 711\\nNancy K. HUDKINS, Petitioner Below, Appellee, v. STATE OF WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD, Respondent Below, Appellant.\\nNo. 33245.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted: May 9, 2007.\\nDecided: June 13, 2007.\\nFred F. Holroyd, Esq., Holroyd & Yost, Charleston, for Appellee.\\nErica M. Mani, Esq., Bowles Rice MeDa-vid Graff & Love, Charleston, for Appellant.\", \"word_count\": \"3867\", \"char_count\": \"23766\", \"text\": \"PER CURIAM.\\nThe West Virginia Consolidated Public Retirement Board (\\\"Board\\\") appeals a circuit court order which reversed the Board's administrative decision denying appellee Nancy K. Hudkins' right to convert unused sick leave to retirement service credit for purposes of calculating her pension benefits. For the reasons discussed in this decision, we affirm the circuit court.\\nI.\\nNancy K. Hudkins was a member of the Public Employees Retirement System (\\\"PERS\\\") by virtue of her employment with the West Virginia Department of Health and Human Resources (\\\"Department\\\"). Ms. Hudldns had worked for the Department for twenty-seven years and 217 days and had accumulated 1,752.2 hours of sick leave before she decided to separate from her employment on March 31, 2000. At the time of her separation from employment she was not yet fifty-five years of age and therefore was not eligible for immediate retirement benefits under PERS.\\nIn March of 2000, before deciding to separate from her employment, Ms. Hudkins undertook to determine if she could convert her unused sick leave to service credit which, if the conversion were allowed, would increase her retirement income when she reached retirement age on April 1, 2004. As a part of Ms. Hudkins' inquiry she contacted the Board to confirm her right to convert her accumulated sick leave to service credit. An employee of the Board assured Ms. Hudldns that she could freeze her sick leave and use it on April 1, 2004, as additional service credit when she filed for retirement benefits. In addition to the assurance given to Ms. Hud-kins by the Board employee, she was also given written assurance by the community services manager for the Department that she could freeze her unused sick leave and use the accumulated 1,752.2 hours to extend her service credit upon applying for retirement.\\nOn March 31, 2000, based upon the assurances given her by the Board and the Department community service manager that she could convert her unused sick leave to service credit upon her planned retirement, Ms. Hudkins resigned from her employment with the Department.\\nIn September 2002, more than two years following separation from her employment, Ms. Hudkins learned for the first time that she might not be permitted to convert her unused sick leave to service credit. In an attempt to determine the accuracy of what she had been told, Ms. Hudkins contacted the Board in writing and inquired about the Board's \\\"sick leave to service credit\\\" policy. In her inquiry she also indicated that she wanted to \\\"appeal\\\" any decision not to honor her original understanding of the policy. By correspondence dated October 4, 2002, the Board advised Ms. Hudkins that only employees who actually retire and begin drawing retirement benefits at the time of their termination of employment could convert unused sick leave to service credit, and that unused sick leave could not be converted to service credit by employees who terminated their employment before they become eligible for retirement benefits.\\nIn January 2003, prior to the date of her retirement eligibility, Ms. Hudkins initiated administrative proceedings seeking to secure the right to convert her unused sick leave to service credit \\u2014 as she had been assured prior to her decision to separate from her employment.\\nOn April 16, 2003, a hearing was conducted before a Board hearing officer. Subsequent to the hearing, the hearing officer recommended to the Board that Ms. Hudkins' appeal be denied. On May 28, 2003, the Board adopted the recommended decision and denied her appeal.\\nIn June 2003, Ms. Hudkins appealed the decision of the Board to the circuit court of Kanawha County under the judicial review provisions of the West Virginia Administrative Procedures Act. The circuit court, after a hearing, reversed the decision of the Board.\\nIt is from the circuit court decision reversing the Board that the appellant appeals.\\nII.\\nReview of appeals from circuit court orders in administrative appeals is governed by W.Va.Code, 29A-6-1 (1964), which provides as follows:\\nAny party adversely affected by the final judgment of the circuit court under this chapter may seek review thereof by appeal to the supreme court of appeals of this state, and jurisdiction is hereby conferred upon such court to hear and entertain such appeals upon application made therefor in the manner and within the time provided by law for civil appeals generally.\\nThe standard of review by this Court of an appeal of an administrative case from the circuit court is found in Syllabus Points 1 and 2 respectively of Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). We held in Syllabus Point 1 that:\\nOn appeal of an administrative order from a circuit court, this Court is bound by the statutory standards contained in W.Va. Code, 29A-5-4[g] and reviews questions of law presented de novo; findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong.\\nW.VaCode, 29A-5-4(g) and (h) (1998) provide as follows:\\n(g) The court may affirm the order or decision of the agency or remand the case for further proceedings. It shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decision or order are:\\n(1) In violation of constitutional or statutory provisions; or\\n(2) In excess of the statutory authority or jurisdiction of the agency; or\\n(3) Made upon unlawful procedures; or\\n(4) Affected by other error of law; or\\n(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or\\n(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.\\n(h) The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the supreme court of appeals of this state in accordance with the provisions of section one [\\u00a7 29A-6-1], article six of this chapter.\\nSyllabus Point 2 of Muscatell, supra, further provides:\\nIn cases where the circuit court has amended the result before the administrative agency, this Court reviews the final order of the circuit court and the ultimate disposition by it of an administrative law case under an abuse of discretion standard and reviews questions of law de novo.\\nInasmuch as the instant case presents a legal issue relating to the application of equi table estoppel, we find the issue appropriate for de novo review under W.Va.Code, 29A-5-4(g) (1998).\\nWith these standards in mind we proceed with our analysis.\\nIn this case we address a state employee's attempt to convert unused sick leave to extend service credit for the puipose of calculating retirement benefits. The statutory authority for an employee using unused sick leave to extend his or her service credit is found in W.Va.Code, 5-10-15a (1988), which states:\\nAny member accruing annual leave or sick leave days may, after the effective date of this section [June 27,1988], elect to use such days at the time of retirement to acquire additional credited service in this retirement system. Such days shall be applied on the basis of two workdays credit granted for each one day of such accrued annual or sick leave days, with each month of retirement service credit to equal twenty workdays and with any remainder of ten workdays or more to constitute a full month of additional credit and any remainder of less than ten workdays to be dropped and not used, notwithstanding any provisions of the code to the contrary, including section twelve [\\u00a7 5-16-12], article sixteen of this chapter. Such credited service shall be allowed and not deemed to controvert the requirement of no more than twelve months credited service in any year's period.\\nPrior to Ms. Hudkins' separation from employment and before the passage of W.Va. Code, 5-10-15a (1988), the West Virginia Department of Personnel had a provision in its rules which stated that \\\"Separation from Employment \\u2014 All accumulated sick leave shall be cancelled as of the effective date of separation of employment or last day worked during the notice period.\\\" WVSCR 143-1-16.04(e)(1) (1981). After the passage of W.Va.Code, 5-10-15a (1988), this particular language of the personnel regulations continued to be included in the West Virginia Department of Personnel rules and remained substantially the same as the version predating passage of W.Va.Code, 5-10-15a (1988).\\nIn 2002, over two years after Ms. Hudkins' decision to separate from her employment, the West Virginia Consolidated Retirement Board, for the first time, promulgated rules relating to service credit for unused sick leave. The rules and the timing of their adoption appear to be the result of the Board discovering the existence of the \\\"cancellation\\\" provision in the Division of Personnel rules. The new Board Rules read, in part, as follows:\\nService Credit for Accrued Unused Sick and Annual Leave. \\u2014 Members of the Public Employees Retirement System may elect to receive additional service credit in exchange for accrued and unused sick and annual leave at the time of retirement. Members who make this election are eligible for any additional service credit to which the member is entitled based upon the number of member's accrued unused sick and annual leave days which stand to the member's credit with the member's last participating public employer at the time of retirement....\\nWVCSR, 162-8-4.1 (2002). These \\\"service credit\\\" rules were amended in 2006, but the quoted language remained unchanged. See WVCSR, 162-8-4.1 (2006).\\nThe history of legislative and regulatory action that is relevant to the instant case suggests that upon the 1988 passage of W.Va.Code, 5-10-15a, the Board allowed employees to extend service credit for unused sick leave, regardless of whether the employee terminated his or her employment to immediately draw retirement benefits, or, as in the case of Ms. Hudkins, separated from employment before being eligible to draw retirement. This was confirmed at oral ar gument by counsel for the appellant. Appellant's counsel also indicated that a Board investigation is underway to determine how many other former employees, similarly situated to Ms. Hudkins, currently receive the benefit of extended service credit for unused sick leave.\\nWe believe that this case can be decided upon principles of equitable estoppel. The appellant, however, argues that the application of the doctrine of equitable estoppel should not be applied.\\nIn Syllabus Point 7 of Samsell v. State Line Development Company, 154 W.Va. 48, 174 S.E.2d 318 (1970) this Court acknowledged that the doctrine of estoppel may be applied against the State, but held that:\\nThe doctrine of estoppel should be applied cautiously, only when equity clearly requires that it be done, and this principle is applied with especial force when one undertakes to assert the doctrine against the state.\\nThe general rule prohibiting the application of the doctrine is not without exceptions. This Court in its prior decisions never intended to preclude the application of equitable estoppel against the State in every case. We therefore agree with the trial court's acknowledgment that the general rule that equitable estoppel does not apply against a governmental agency is not without exceptions.\\nThe trial court's findings are supported by 28 Am.Jur.2d Estoppel and Waiver \\u00a7 140 which states as follows:\\n\\u00a7 140. What must be shown to estop government.\\nIn recognition of the heavy burden bourne by one seeking to estop the government, courts have held that the doctrine of estoppel may be raised against the government only if, in addition to the traditional elements of estoppel, the party raising the estoppel proves affirmative misconduct or wrongful conduct by the government or a government agent. Likewise, courts have held an estoppel against the government may be raised only when -\\n\\u2014 the injury to the public interest if the government is estopped is out weighed by the injury to the plaintiffs personal interest or the injustice that would arise if the government is not estopped.\\n\\u2014 raising the estoppel prevents manifest or grave injustice.\\n\\u2014 raising the estoppel will not defeat a strong public interest or the operation of public policy.\\n\\u2014 the exercise of government functions is not impaired or interfered with.\\n\\u2014 circumstances make it highly inequitable or oppressive not to estop the government.\\n\\u2014 the government's conduct works a serious injury and the public's interest will not be harmed by the imposition of estop-pel.\\nSee also, Wisconsin Department of Revenue v. Moebius Printing Company, 89 Wis.2d 610, 279 N.W.2d 213 (1979) (taxpayer was entitled to claim the benefit of estoppel based upon tax representative's incorrect advice).\\nThat estoppel may operate against a state government with regard to unused sick leave is supported by Crum v. Stalnaker, 936 P.2d 1254 (Alaska 1997). In Crum, a retired teacher was denied his claim for unused sick leave credit in the Teacher's Retirement System after twenty-one years of teaching. The teacher had accumulated 183 days of unused sick leave credit, equivalent to about one year of service. The estimated value of the loss of the sick leave credit was more than $100.00 per month in retirement benefits. The evidence showed that the retirement system had failed to provide the teacher with the proper form with which to claim credit for his unused sick leave. As a result the teacher was denied his claim.\\nOn appeal the Alaska court stated in 0mm that:\\n. [Ejstoppel may apply against the government and in favor of a private party if four elements are present: (1) the government body asserts a position by conduct or words; (2) the private party acts in reasonable reliance thereon; (3) the private party suffers resulting prejudice; and (4) the estoppel serves the interest of justice so as to limit public injury. Wassink v. Hawkins, 763 P.2d 971, 975 (Alaska 1988).\\nCrum, 936 P.2d at 1256. In Crum the Alaska Supreme Court held that the four elements of Wassink were satisfied.\\nThis Court held in Syllabus Point 6 of Stuart v. Lake Washington Realty Corp., 141 W.Va. 627, 92 S.E.2d 891 (1956) that in disputes between private parties:\\nThe general rule governing the doctrine of equitable estoppel is that in order to constitute equitable estoppel or estoppel in pais there must exist a false representation or a concealment of material facts; it must have been made with knowledge, actual or constructive of the facts; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the intention that it should be acted on; and the party to whom it was made must have relied on or acted on it to his prejudice.\\nAfter a complete review of the record in this case, we are compelled to conclude that the elements of equitable estoppel have been met by Ms. Hudkins. It is not disputed that a Board employee made the representation that Ms. Hudkins was eligible to claim service credit for her unused sick leave given her years of service and age. Furthermore, as disclosed in oral argument, the Board has had a long history of extending service credit for unused sick leave without regard to whether or not the employee was separating from employment to immediately draw retirement benefits. The Board employee who advised Ms. Hudkins clearly had in her possession all of the facts necessary to correctly advise Ms. Hudkins as to her entitlement to convert her unused sick leave. We are also satisfied that the representations by the Board employee were made with the intention that Ms. Hudkins would act upon those representations, and that Ms. Hudkins did, in fact, act in reliance upon the representations of the Board employee.\\nFurthermore, it is also uncontroverted that Ms. Hudkins would not have separated from her employment with the Department but for the representations made by the Board employee and the representations made by Mr. Najmulski, the community service manager for the Department in which Ms. Hudkins was employed, that Ms. Hudkins could convert her unused sick leave to extended service credit for purposes of calculating her retirement benefits. That Ms. Hudkins relied upon these representations to her prejudice is clearly expressed in her September 13, 2002 letter to the Board when she stated, \\\"Since I have already resigned approximately 2^ years ago, I do not have the option of thinking it over.\\\" Her reliance upon those representations is uncontroverted.\\nWe also note that the Board employee upon whom Ms. Hudkins relied before her separation from employment was simply doing that which had apparently become a common practice of the Board, namely, allowing employees who separate from their employment to \\\"freeze\\\" their unused sick leave. Furthermore, we note that since the Board had not even addressed in their rules the matter of the unused sick leave credits until 2002 \\u2014 more than two years following Ms. Hudkins' separation from her employment, Ms. Hudkins could not have been aware of the methodology used by the Board even if she had thoroughly examined the Board's rules. Finally, we observe that the Board's staff was dedicated to the business of advising employees concerning retirement benefits. This is an activity that the Board undertakes everyday. We believe that Ms. Hudkins had every right to rely upon the advice of the Board representative regarding her right to \\\"freeze\\\" her unused sick leave for purposes of calculating her retirement benefits. This is especially true since the Board had apparently established the practice of giving the same advice to other employees both before and after Ms. Hudkins separated from her employment.\\nWe believe the principles set forth in 28 Am. Jur.2d Estoppel and Waiver \\u00a7 140 and in Syllabus Point 6 of Stuart v. Lake Washington Realty Corp., supra, and the cautious advice provided in Syllabus Point 7, Samsell v. State Line Development Company, supra, have been met. The record reflects that the financial impact of this decision is approximately $51.00 per month. Given the likelihood that Ms. Hudkins will be required to live on a fixed income for the remainder of her life, we find that the injury and injustice to Ms. Hudldns outweighs the public interest by estopping the Board in this case. We therefore conclude that by permitting estop-pel to operate in this case, we will prevent a manifest and grave injustice.\\nFinally, we do not believe that a strong public interest or operation of public policy will be defeated by this decision. By expressly limiting our decision to the specific facts of this case, we further find that the exercise of government functions will not be impaired or interfered with, nor will the public interest be harmed.\\nIII.\\nBased upon the foregoing, we affirm the decision of the circuit court.\\nAffirmed.\\n. The Board is a public body established pursuant to W.Va.Code, 5-10D-1, et seq. (2007) and serves as the statutory administrator of the West Virginia Public Employees Retirement System (\\\"PERS\\\").\\n. Retirement age under the Public Employees Retirement System is fifty-five years. See W.Va. Code, 5-10-21(2005).\\n. Ms. Hudkins was given a letter from John Najmulski, Community Service Manager, Department of Health and Human Resources, dated March 28, 2000, which states:\\nTO WHOM IT MAY CONCERN:\\nNancy K. Hudkins resigned from Department of Health and Human Resources effective March 31, 2000. This was her last working day and last day on payroll. She was paid a lump sum for her 358.5 hours annual leave. Her 1752.2 hours sick leave were frozen to use for extended service credit upon applying for retirement.\\nShould additional information, please do not hesitate to contact me.\\nSincerely,\\nJohn J. Najmulski, MSW\\nCommunity Service Manager\\n. Sometime during the period after Ms. Hudkins had terminated her employment and September 2002, the Board learned of a pre-existing West Virginia Division of Personnel regulation, which provided that if an employee separates from his or her employment for any reason other than retirement, then all unused sick leave is can-celled.\\n. The exasperation of Ms. Hudkins is demonstrated in her September 13, 2002, letter to the Board:\\nSeptember 13, 2002\\nAttn: Michael Adkins\\nState of West Virginia\\nConsolidated Public Retirement Board\\nBuilding 5, Room 1000\\nCharleston, WV 25305\\nDear Mr. Adkins:\\nMy name is Nancy Karleen Hudkins. I worked for the Department of Health and Human Resources for 27 years and 217 days. I resigned from my job 03-31-00. Prior to resigning I spoke to Jo Ann Edwards and was advised I could freeze my 1752.2 hours of sick leave and use it for extended service credit upon applying for retirement in 2004. Upon hearing this, I decided I would resign 03-31-00, freeze my time and sick leave and was paid a lump sum for my vacation and comp time.\\nYesterday I was informed this promise was not going to be honored by the Department of Personnel. I am very angry and disappointed as I was told I could use my sick leave for extended time and in good faith, believing I could trust the establishment that I worked for for so many years, I resigned. Since I have already resigned approximately 2 'k years ago, I do not have the option of thinking it over.'\\nI want to appeal the Department of Personnel's decision not to honor information I was given regarding my sick leave hours that were frozen to use for extended service credit upon applying for my retirement in 2004.\\nSincerely,\\nNancy Karleen Hudkins\\n.The October 4, 2002 letter received by Ms. Hudkins states, in part, as follows:\\nThe provision that does not allow for the \\\"banking\\\" of sick leave upon leaving employment with the State of West Virginia is not a new provision. It is my understanding that the rule regarding this matter have been effective for more that fourteen (14) years.\\nWest Virginia Administrative Rule, Division of Personnel, Section 14.4(e)(2) states:\\n\\\"2. All Other Separations \\u2014 All accumulated sick leave shall be cancelled as of the date of separation\\nThe only exception to the above rule is when the State of West Virginia employee leave activity employment and enters immediately into retirement....\\nSincerely,\\nJ. Michael Adkins\\nInterim Co-Executive Director\\n. See W.Va.Code, 29A-5-4 (1998).\\n. The circuit court order, as a basis for its decision, slates, in part, as follows:\\nAlthough generally, estoppel does not apply against a governmental agency in carrying out its statutory duties, there are exceptions. In this particular case, this Court finds estoppel does apply. To deny estoppel in this case would permit manifest injustice.\\n(Emphasis added.)\\n. The 1981 language in this personnel regulation was subsequently modified in 1987 and again in 1993. The language of the 1993 version was carried into later versions of the regulations and was the operative language of the regulation when Ms. Hudkins separated from her employment in March 2000, and retired on April 1, 2004, when she began receiving her retirement benefits. The 1993 operative language is as follows: \\\"All Other Separations \\u2014 All accumulated sick leave shall be cancelled as of the effective date of separation.\\\" WVSCR 143 \\u2014 1\\u201415.04(e)(2) (1993).\"}"
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+"{\"id\": \"8368509\", \"name\": \"Grace LONTZ and Beverly Pettit, Plaintiffs Below, Appellants, v. Joyce THARP; Elizabeth Doak; James Baish; Sandeep Thakrar; and Monical, LLC, d/b/a Holiday Inn Express, Defendants Below, Appellees\", \"name_abbreviation\": \"Lontz v. Tharp\", \"decision_date\": \"2007-06-13\", \"docket_number\": \"No. 33243\", \"first_page\": \"282\", \"last_page\": \"289\", \"citations\": \"220 W. Va. 282\", \"volume\": \"220\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T17:07:06.279964+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Grace LONTZ and Beverly Pettit, Plaintiffs Below, Appellants, v. Joyce THARP; Elizabeth Doak; James Baish; Sandeep Thakrar; and Monical, LLC, d/b/a Holiday Inn Express, Defendants Below, Appellees.\", \"head_matter\": \"647 S.E.2d 718\\nGrace LONTZ and Beverly Pettit, Plaintiffs Below, Appellants, v. Joyce THARP; Elizabeth Doak; James Baish; Sandeep Thakrar; and Monical, LLC, d/b/a Holiday Inn Express, Defendants Below, Appellees.\\nNo. 33243.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted: April 18, 2007.\\nDecided: June 13, 2007.\\nDissenting Opinion of Justice Stancher June 27, 2007.\\nPaul J. Harris, Esq., Wheeling, for the Appellants.\\nJohn R. Merinar, Jr., Esq., Steptoe & Johnson, Clarksburg, Mario R. Bordogna, Esq., Monte L. Williams, Esq., Steptoe & Johnson, Morgantown, for the Appellees.\", \"word_count\": \"4328\", \"char_count\": \"26599\", \"text\": \"PER CURIAM.\\nThis action is before this Court upon the appeal of Grace Lontz and Beverly Pettit from the May 11, 2006, order of the Circuit Court of Ohio County, West Virginia, dismissing their action for wrongful discharge filed against their employer, Monical, LLC, d/b/a Holiday Inn Express. The Circuit Court concluded that the action should be dismissed because it is preempted from State adjudication by the National Labor Relations Act. 29 U.S.C. \\u00a7 151 (1947), et seq. The appellants contend that the action should remain in the Circuit Court because they assert that their discharge from employment violated the West Virginia Labor-Management Relations Act for the Private Sector. W. Va.Code, 21-1A-1 (1971).\\nThis Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. Upon the applicable de novo standard of review and for the reasons expressed below, this Court is of the opinion that the Circuit Court was correct in concluding that the action is preempted by the National Labor Relations Act. Thus, appellants Lontz and Pettit may pursue their claims before the National Labor Relations Board. Accordingly, the May 11, 2006, order of the Circuit Court of Ohio County is affirmed.\\nI.\\nFactual and Procedural Background\\nAppellants Lontz and Pettit worked at the Holiday Inn Express located in the Dallas Pike area of Ohio County, West Virginia. The controversy resulted when various employees at the Inn sought to unionize in 2003. Soon after, the employment of Lontz and Pettit ceased. Lontz and Pettit then filed an action in the Circuit Court of Ohio County alleging wrongful discharge. In addition to Monical, the named defendants included the following individuals who held management positions connected with the Holiday Inn Express: Joyce Tharp, Elizabeth Doak, James Baish and Sandeep Thakrar.\\nAn amended complaint, filed in November 2003, alleged that the management at the Holiday Inn Express was \\\"adamantly opposed to any union organizing activities and used legal and illegal means in an attempt to defeat the employees' efforts to unionize.\\\" Specifically, Lontz alleged that she was constructively discharged because she \\\"refused to engage in unlawful conduct to have a union organizer arrested.\\\" Pettit alleged that she was wrongfully discharged because her employer blamed her for \\\"commencing the union activity.\\\" According to Pettit, the defendants (the appellees in this appeal) engaged in a conspiracy to discharge her based on their belief that she assisted, cooperated and encouraged \\\"certain employees to engage in union organizing activities.\\\" The amended complaint concluded by asserting that the conduct of the defendants violated the public policy of West Virginia.\\nThe appellees filed a motion to dismiss asserting that the action is preempted by the National Labor Relations Act. 29 U.S.C. \\u00a7 151 (1947), et seq. However, prior to a ruling thereon, the appellees filed a notice that the action had been removed to the United States District Court for the Northern District of West Virginia. 28 U.S.C. \\u00a7 1446 (1996). On July 1, 2004, the District Court dismissed the appellants' wrongful discharge action, concluding that it is subject to the National Labor Relations Act and, therefore, should be pursued before the National Labor Relations Board.\\nUpon appeal, the United States Court of Appeals for the Fourth Circuit vacated the ruling of the District Court and held that the question of preemption was for the Circuit Court of Ohio County, West Virginia, to decide, rather than the District Court. Lontz v. Tharp, 413 F.3d 435 (4th Cir.2005). In so ruling, the Court of Appeals observed that removal to District Court is appropriate: (1) where there is diversity of citizenship, (2) where the complaint reveals a federal question essential to the plaintiffs cause of action or (3) where the \\\"complete preemption\\\" doctrine displaces state-law claims in a federally regulated area, such as in matters of federal concern under the Employee Retirement Income Security Act and the National Bank Act. 413 F.3d at 441. Focusing on complete preemption, the Court of Appeals stated that the sine qua non of the doctrine \\\"is a preexisting federal cause of action that can be brought in the district courts.\\\" 413 F.3d at 442.\\nApplying those principles herein, the Court of Appeals in Lontz determined that, although the wrongful discharge action involves ostensible violations of sections 7 and 8 of the National Labor Relations Act, 29 U.S.C. \\u00a7 157 (1947) and 29 U.S.C. \\u00a7 158 (1974), those sections do not, in themselves, create jurisdiction in the federal courts. Thus, removal to the District Court under the complete preemption doctrine was error, and the proper forum to decide the question of preemption was the Circuit Court of Ohio County. See State ex rel. Orlofske v. City of Wheeling, 212 W.Va. 538, 543, 575 S.E.2d 148, 153 (2002) (indicating that when a state proceeding presents a preemption issue the proper course is to seek resolution of that issue by the state court). As the Court of Appeals made clear: \\\"Even though their ordinary preemptive power is great, sections 7 and 8 do not on their own terms confer federal jurisdiction and therefore cannot be the basis of removal through complete preemption.\\\" 413 F.3d at 444. Consequently, the Court of Appeals, in Lontz, acknowledged that, even though a defendant might ultimately prove that the action is preempted under the National Labor Relations Act, that does not establish that the action is removable to a federal district court. 413 F.3d at 443.\\nUpon remand, the Circuit Court conducted a hearing and, pursuant to the order of May 11, 2006, dismissed the appellants' action. The Circuit Court concluded that the National Labor Relations Act \\\"preempts the plaintiffs' allegations in this case of wrongful and/or constructive discharge because of union activity\\\" as set forth in the amended complaint. The dismissal did not include the claim alleged by Lontz under the West Virgi-. nia Wage Payment and Collection Act. See, n. 1, supra. This appeal is from the May 11, 2006, order.\\nII.\\nStandards of Review\\nThe issue before this Court is whether the Circuit Court committed error in granting file appellees' motion to dismiss upon the ground that the wrongful discharge action is preempted by the National Labor Relations Act. As the motion states, the appellees rely on two provisions of Rule 12(b) of the West Virginia Rules of Civil Procedure: subsection (1), lack of jurisdiction over the subject matter, and subsection (6), failure to state a claim upon which relief can be granted. See Lugar & Silverstein, West Virginia Rules of Civil Procedure p. 100-03 (Michie 1960), discussing the history of Rule 12(b).\\nIn syllabus point 2 of State ex rel. McGraw v. Scott Runyan Pontiac-Buick, 194 W.Va. 770, 461 S.E.2d 516 (1995), this Court observed: \\\"Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo.\\\" Syl. pt. 1, Rhododendron Furniture & Design v. Marshall, 214 W.Va. 463, 590 S.E.2d 656 (2003); syl. pt. 1, Bowers v. Wurzburg, 205 W.Va. 450, 519 S.E.2d 148 (1999). Moreover, citing Kollar v. United Transportation Union, 83 F.3d 124, 125 (5th Cir.1996), this Court confirmed, in Hartley Marine Corp. v. Mierke, 196 W.Va. 669, 673, 474 S.E.2d 599, 603 (1996), that \\\"preemption is a question of law reviewed de novo.\\\" State v. Quintero Morelos, 133 Wash.App. 591, 137 P.3d 114, 118 (2006); Galvez v. Kuhn, 933 F.2d 773, 776 (9th Cir.1991).\\nIII.\\nDiscussion\\nIn remanding the appellants' action to the Circuit Court, the Court of Appeals in Lontz emphasized that the question of preemption under sections 7 and 8 of the National Labor Relations Act should be viewed under the \\\"Garmon preemption\\\" as set forth in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). In Garmon, the Supreme Court of the United States held that a California action brought by an employer for damages caused by union picketing was preempted because the action fell within the purview of sections 7 and 8 of the Act. As the Supreme Court stated: \\\"When an activity is arguably subject to \\u00a7 7 or \\u00a7 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.\\\" 359 U.S. at 245, 79 S.Ct. at 780, 3 L.Ed.2d at 783.\\nAlthough the Supreme Court indicated in Garmon that not all cases touching on sections 7 and 8 of the Act are preempted, the Court suggested that any doubt should be resolved in favor of the authority of the National Labor Relations Board. Thus, the Court explained:\\nAt times it has not been clear whether the particular activity regulated by the States was governed by \\u00a7 7 or \\u00a7 8 or was, perhaps, outside both these sections. But courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Boai'd.\\n359 U.S. at 244-45, 79 S.Ct. at 779, 3 L.Ed.2d at 783.\\nCiting Garmon, this Court, in syllabus point 5 of United Maintenance and Manufacturing v. United Steelworkers of America, 157 W.Va. 788, 204 S.E.2d 76 (1974), held: \\\"Where a labor dispute is subject to National Labor Relations Board jurisdiction, a state is preempted from acting to enforce private or public rights.\\\"\\nAccordingly, this matter differs from Greenfield v. Schmidt Baking Company, 199 W.Va. 447, 485 S.E.2d 391 (1997), wherein this Court held in syllabus point 4 that the application of State law is preempted by \\u00a7 301 of the Labor Management Relations Act, 29 U.S.C. \\u00a7 185 (1947), \\\"only if such application requires the interpretation of a collective bargaining agreement.\\\" Subsection (a) of \\u00a7 301 concerns \\\"[sjuits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commeree[,]\\\" and the issue in Greenfield was whether the action of the employee against his employer for defamation, invasion of privacy and the intentional infliction of emotional distress was preempted by that federal statute. In contrast, the action now before us involves a consideration of sections 7 and 8, 29 U.S.C. \\u00a7 157 (1947), and 29 U.S.C. \\u00a7 158 (1974), as to which the \\\"Garmon preemption\\\" specifically applies. Nevertheless, the implication found in Greenfield, that the preemptive effect of federal law should be examined on a case-by-case basis, is helpful in this matter. Greenfield, 199 W.Va. at 453, 485 S.E.2d at 397. See also, General Motors Corporation v. Smith, 216 W.Va. 78, 85, 602 S.E.2d 521, 528 (2004).\\nHere, the appellants allege in their amended complaint that the management at the Holiday Inn Express used both legal and illegal means in an attempt to defeat the employees' efforts to unionize. Lontz alleges that she was constructively discharged because she refused to engage in unlawful conduct to have a union organizer arrested. Pettit alleges that she was wrongfully discharged because she was blamed for commencing union activity. Specifically, Pettit asserts that the appellees engaged in a conspiracy to discharge her based on their belief that she assisted, cooperated and encouraged various employees to participate in union organizing activities. Plainly, those allegations implicate the scope and reach of sections 7 and 8 of the National Labor Relations Act, 29 U.S.C. \\u00a7 157 (1947), and 29 U.S.C. \\u00a7 158 (1974), in that they suggest both a violation of the right to form, join or assist labor organizations as protected under section 7 and a violation of section 8 concerning unfair labor practices. Consequently, the allegations of transgressions of State public policy notwithstanding, this Court is of the opinion that the Circuit Court was correct in concluding that the appellants' wrongful discharge action is preempted by the National Labor Relations Act.\\nNor is this result altered by the appellants' assertion that they were supervisors at the Holiday Inn Express and, as such, cannot pursue charges before the National Labor Relations Board. Using comparable statutory language, supervisors are excluded from the term \\\"employee\\\" under both the National Labor Relations Act, 29 U.S.C. \\u00a7 152(3) (1978), and the West Virginia Labor-Management Relations Act for the Private Sector, W.Va. Code, 21-1A-2(a)(3) (1971). It should be noted, however, that the original and amended complaints filed in the Circuit Court do not describe the appellants as supervisors. Rather, those pleadings allege that the appellants \\\"were employed at the Holiday Inn Express.\\\" Nor did the appellants describe themselves as supervisors in their response in opposition to the motion to dismiss. The response was filed in the Circuit Court following the decision of the Court of Appeals to remand the action to State court.\\nIn the Lontz opinion, however, the Court of Appeals referred to the appellants as \\\"hotel supervisors,\\\" and they were so described in the earlier charges before the National Labor Relations Board, which charges the appellants withdrew. See, n. 3, supra. Nevertheless, the issue of whether the appellants were supervisors has never been resolved.\\nIn view of the nexus between the appellants' allegations concerning their discharge and sections 7 and 8 of the National Labor Relations Act, this Court concludes that the National Labor Relations Board is the appropriate forum to determine the supervisor issue \\\"in the first instance.\\\" Garmon, supra. As stated by the appellees: \\\"It is for the NLRB to look at the provisions of the NLRA, to perform a factual inquiry into the nature of [the appellants'] responsibilities and then come to a conclusion as to whether they are entitled to the protection of the NLRA.\\\"\\nIV.\\nConclusion\\nFor the reasons expressed above, the Circuit Court correctly determined that the appellants' action for wrongful discharge is preempted by the National Labor Relations Act. Thus, appellants Lontz and Pettit may pursue their claims before the National Labor Relations Board. Accordingly, the May 11, 2006, order of the Circuit Court of Ohio County, West Virginia, is affirmed.\\nAffirmed\\n. In addition to wrongful discharge, appellant Lontz alleges that her employer violated the West Virginia Wage Payment and Collection Act. W. Va.Code, 21-5-1 (1987), et seq. As reflected in the May 11, 2006, order, the Circuit Court ruled that, although the wrongful discharge action of Lontz and Pettit is preempted, the Wage Payment and Collection claim would remain before the Court. The parties do not contest that ruling, and the ruling was later confirmed by the federal Court of Appeals. As a result, this appeal falls within the context of Rule 54(b) of the West Virginia Rules of Civil Procedure which provides that, when more than one claim for relief is presented in an action, the circuit court may direct the entry of a \\\"final judgment\\\" as to one or more of the claims for purposes of appeal.\\n. The West Virginia Labor-Management Relations Act for the Private Sector, W. Va.Code, 21-1A-1 (1971), et seq., is not cited in the complaint or the amended complaint filed by the appellants. However, the appellants equate the public policy they refer to with W. Va.Code, 21-1A-1(a) (1971), of the Act which states in part: \\\"It is hereby declared to be the public policy of this State . to encourage the practice and procedure of collective bargaining.\\\"\\n. The notice of removal filed in the District Court stated that appellants Lontz and Pettit had previously filed charges with the National Labor Relations Board \\\"alleging that the same matters complained of before the Circuit Court of Ohio County, West Virginia, are violations of federal law, specifically the NLRA.\\\" The record indicates, however, that the charges, case no. 6-CA-33788 (Lontz) and case no. 6-CA-33789 (Pettit), were withdrawn by the appellants prior to a decision by the Board on the merits.\\n. Section 7 of the National Labor Relations Act, 29 U.S.C. \\u00a7 157 (1947), concerns the right of employees to form, join or assist labor organizations and \\\"to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining[.]\\\" Section 8 of the Act, 29 U.S.C. \\u00a7 158 (1974), concerns unfair labor practices and provides, for example, that it shall be an unfair labor practice for an employer to interfere with employees in the exercise of their rights under section 7.\\n. According to the May 11, 2006, order, the hearing conducted by the Circuit Court took place on April 28, 2006. A transcript of that hearing is not included in the record before this Court.\\n. In National Labor Relations Board v. Broyhill Company, 514 F.2d 655, 658 (8th Cir.1975), the Court of Appeals noted that the determination of who is authorized to act as a supervisor in the interest of the employer is a fact question and a matter of practical application by the National Labor Relations Board to the infinite gradations of authority within a particular industry. See also, Goldies, Inc., v. National Labor Relations Board, 628 F.2d 706, 710 (1st Cir.1980). In National Labor Relations Board v. Whitin Machine Works, 204 F.2d 883 (1st Cir.1953), for example, an assistant supervisor in his employer's accounting department was, upon a consideration of the nature of his work, determined not to be a supervisor for purposes of litigating his discharge from employment, and, therefore, he was entitled to the protections of the National Labor Relations Act. 204 F.2d at 886.\\nAn exception to the exclusion of supervisors, however, was recognized in National Labor Relations Board v. Oakes Machine Corporation, 897 F.2d 84 (2nd Cir.1990). In Oakes Machine, the Court indicated that an exception to the statutorily imposed exclusion of supervisors from the protection of the National Labor Relations Act is that an employer may not discharge a supervisor in retaliation for his testimony or his threat to testify in NLRB proceedings. 897 F.2d at 92.\"}"
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+"{\"id\": \"8387638\", \"name\": \"STATE of West Virginia, Plaintiff Below, Appellee v. Danny L. CECIL, Defendant Below, Appellant\", \"name_abbreviation\": \"State v. Cecil\", \"decision_date\": \"2007-11-21\", \"docket_number\": \"No. 33298\", \"first_page\": \"495\", \"last_page\": \"505\", \"citations\": \"221 W. Va. 495\", \"volume\": \"221\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T20:25:29.217381+00:00\", \"provenance\": \"CAP\", \"judges\": \"Justice MAYNARD dissents.\", \"parties\": \"STATE of West Virginia, Plaintiff Below, Appellee v. Danny L. CECIL, Defendant Below, Appellant.\", \"head_matter\": \"655 S.E.2d 517\\nSTATE of West Virginia, Plaintiff Below, Appellee v. Danny L. CECIL, Defendant Below, Appellant.\\nNo. 33298.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted Sept. 12, 2007.\\nDecided Nov. 21, 2007.\\nJames M. Cagle, Mark McMillian, Charleston, for Appellant.\\nMark A. Sorsaia, Prosecuting Attorney, Angela M. Hanks, Assistant Prosecuting Attorney, Winfield, for Appellee.\", \"word_count\": \"5132\", \"char_count\": \"30742\", \"text\": \"PER CURIAM:\\nThis case is before this Court upon appeal of a final order of the Circuit Court of Putnam County entered on April 28, 2006. Pursuant to that order, the appellant and defendant below, Danny Lee Cecil, was sentenced to a term of one to five years in the penitentiary for his conviction of the felony offense of sexual abuse in the first degree; a concurrent term often to twenty years for his conviction of sexual abuse by a custodian; and a consecutive term of ten to twenty years for his second conviction of sexual abuse by a custodian. In this appeal, the appellant presents several assignments of error. First, he contends that the circuit court improperly limited the testimony of one of his witnesses. Secondly, he asserts that the circuit court erred by not granting his motion for judgment of acquittal. Third, the appellant contends that one of the jurors lacked the requisite statutory qualifications to serve on the jury. Fourth, the appellant claims that there was misconduct and bias on the part of certain jury members. Finally, the appellant argues that his sentence is disproportionate in contravention of Article III, Section 5 of the West Virginia Constitution.\\nThis Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. Because we find that there was misconduct on the part of certain jury members, we vacate the appellant's convictions and remand this case for a new trial.\\nI.\\nFACTS\\nIn November 2005, a Putnam County grand jury returned a four-count indictment against the appellant charging him with one count of sexual abuse in the first degree, one count of sexual assault in the second degree, and two counts of sexual abuse by a custodian. The alleged victims were two young adolescent females, S.D. and K.J.\\nIt was alleged that on or around July 3, 2005, K.J., a thirteen-year-old female who was a friend of the appellant's daughter, spent the night at the appellant's residence. According to K.J., she awoke during the night when she felt a hand on her \\\"bottom.\\\" At the time, she was laying on her stomach and when she turned over, she said she saw the appellant standing over her bed. K.J. testified that the appellant then placed his hands inside her shorts and inserted his finger into her vaginal area while at the same time putting his tongue on her lips. K.J. said that she pretended to be asleep while also rolling over to get away from the appellant. She said that the appellant then left the room. According to K.J., after a short period of time, she went to the adjacent bedroom where the appellant's daughter was sleeping and told her what happened. K J. testified that the appellant's daughter went downstairs and told her mother. K.J. said that the appellant and his wife came upstairs to talk to her about her accusations and then called her mother to come and get her. Thereafter, K.J.'s mother took her to the hospital for a sexual assault exam and later filed a complaint with the police.\\nAs the investigation began concerning K.J.'s allegations, S.D. came forward and alleged that she had been a victim of the appellant in 2002. S.D. testified that in March of 2002, when she was thirteen-years-old, she spent a night at the Cecil residence. S.D. said that she and her family knew the Cecils through church and that she was a friend of the appellant's son. S.D. testified that a sleep over was arranged between her parents and the Cecils and that she slept in a guest bedroom. According to S.D., during the night she was awakened by the appellant who had his hand down her shirt touching her breasts. She testified that the appellant moved his hands down to her pants and that she defended herself from his advances by holding her legs together. The appellant then left the room. S.D. testified that she told her sister and an uncle what happened but did not tell her parents because she did not want to damage their relationship with the appellant or hurt the appellant's children.\\nA jury was empaneled to hear the appellant's case on January 31, 2006, and trial continued through February 3, 2006. The jury returned its verdicts on February 7, 2006. The appellant was found guilty of one count of the felony offense of sexual abuse in the first degree of S.D. The appellant was further found guilty of two counts of the felony offense of sexual abuse by a custodian as related to both S.D. and K.J. The appellant was found not guilty of sexual assault in the second degree of K.J.\\nThereafter, the appellant f\\u00edl\\u00e9d several post-trial motions and alleged that there had been misconduct on the part of certain jury members. A hearing was held on March 23, 2006. Subsequently, the circuit court denied the appellant's motions and proceeded with sentencing. This appeal followed.\\nII.\\nSTANDARD OF REVIEW\\nAs set forth above the appellant has raised several assignments of error. In Syllabus Point 1 of State v. Paynter, 206 W.Va. 521, 526 S.E.2d 43 (1999), this Court held that, \\\" 'Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.' Syllabus point 1, Chrystal RM. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).\\\" This Court has further held that, \\\"A trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard.\\\" Syllabus Point 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). Finally, this Court has noted that,\\nA motion for a new trial on the ground of the misconduct of a jury is addressed to the sound discretion of the court, which as a rule will not be disturbed on appeal where it appears that defendant was not injured by the misconduct or influence complained of. The question as to whether or not a juror has been subjected to improper influence affecting the verdict, is a fact primarily to be determined by the trial judge from the circumstances, which must be clear and convincing to require a new trial, proof of mere opportunity to influence the jury being insufficient.\\nSyllabus Point 7, State v. Johnson, 111 W.Va. 653, 164 S.E. 31 (1932). With these standards in mind, we now consider the issues presented in this case.\\nIII.\\nDISCUSSION\\nAs set forth above, the appellant has presented several assignments of error which he contends warrant the reversal of his convictions. We will address each of the alleged errors below.\\nA. Limitation on Expert Testimony\\nThe appellant first contends that the circuit court improperly restricted the testimony of Dr. Christina Cooper-Lehki who testified on his behalf. Dr. CooperLehki is a faculty psychiatrist and assistant professor at West Virginia University (\\\"WVU\\\"). Dr. Cooper-Lehki also does forensic evaluations. At trial, Dr. CooperLehki testified to a reasonable degree of medical certainty that evaluations of the appellant completed at WVU showed him to be a normal adult heterosexual male who exhibits no signs of sexual deviance. The appellant wished to have Dr. Cooper-Lehki also testify about an interview of K.J. which was filmed by a social worker for Family Services. The court held an in-camera hearing to determined whether Dr. Cooper-Lehki should be permitted to give this testimony. During the in-camera hearing, Dr. CooperLehki stated that \\\"she had never seen anything like this\\\" referring to the taped interview and explained that the assessment should have been completed by an unbiased examiner. Dr. Cooper-Lehki also testified during the in-camera hearing that accepted studies show that 5% to 35% of accusations of sex crimes are fabrications. She stated that false reporting can be about the details or the accusation may be completely made up and could be the product of poor therapy techniques, therapist influence, or coaching.\\nAt the conclusion of the in-camera hearing, the circuit court ruled that Dr. Cooper-Lehki could rebut the social worker's assessment if it was offered as evidence but that she could not testify about incidents of false reporting or the reasons why the victims might make up such accusations. In this appeal, the appellant contends that the circuit court's limitation on Dr. Cooper-Lehki's testimony contravened Rule 702 of the West Virginia Rules of Evidence. The appellant points out that Rule 702 favors expert testimony if it will assist the trier-of-fact to understand the evidence and determine a fact in issue. The appellant argues that in cases of \\\"he said-she said\\\" such as this one, the jury would quite naturally wonder why someone would fabricate such an accusation. He maintains that Dr. Cooper-Lehki's testimony would have addressed this question and thus should have been admitted.\\nAfter carefully reviewing the record and pertinent authorities, we do not find that the circuit court erred in limiting Dr. Cooper-Lehki's testimony. The circuit court was clearly willing to allow Dr. Cooper-Lehki to give rebuttal testimony had the State presented the social worker's assessment as evidence. Since the State did not present this evidence, Dr. Cooper-Lehki's testimony in that regard was properly excluded. The circuit court also properly excluded the statistical evidence that Dr. Cooper-Lehki was going to relate to the jury. This evidence was clearly being offered by the appellant to attack the credibility of the alleged victims. Such evidence is clearly not admissible pursuant to Rule 608 of the West Virginia Rules of Evidence.\\nIn Syllabus Point 4 of State v. Roy, 194 W.Va. 276, 460 S.E.2d 277 (1995), this Court explained that,\\nThe credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to certain limitations. The evidence may refer only to character for truthfulness or untruthfulness. A fair reading of Rule 608(a) of the West Virginia Rules of Evidence provides that a witness may be impeached by proof that the witness is untruthful. Under this rule, no distinction is made between nonparty witnesses and party witnesses. The rule applies with equal force to the defendant in a criminal case. The form of proof may be either \\\"reputation\\\" or \\\"opinion\\\" evidence.\\nIn this instance, the appellant was seeldng to show that the alleged victims were lying using statistical information that could not be specifically related to them or even the facts of this case. Rule 608 clearly does not contemplate this type of evidence being used to attack the credibility of a -witness. Furthermore, if such evidence were admissible, no defendant could ever be found guilty beyond a reasonable doubt when the only evidence presented by the State is the testimony of the alleged victim. Thus, we are unable to find that the circuit court erred in limiting Dr. Cooper-Lehki's testimony.\\nB. Denial of Motion for Judgment of Acquittal\\nThe appellant next argues that the circuit court erred by denying his motion for judgment of acquittal on Counts 2 and 4 of the indictment which charged him with sexual abuse by a custodian of K.J. and S.D. The appellant first contends that he was entitled to a judgment of acquittal on these charges because there was insufficient evidence that he was a custodian of either K.J. or S.D. as defined by W.Va.Code \\u00a7 61-8D-1 (1988). The appellant maintains that the circuit court improperly relied upon this Court's holding in Syllabus Point 1 of State v. Stephens, 206 W.Va. 420, 525 S.E.2d 301 (1999), which provides that:\\nA babysitter may be a custodian under the provisions of W.Va.Code, 61-8D-5 [1998], and whether a babysitter [is] in fact a custodian under this statute is a question for the jury.\\nHe contends that he was plainly not a babysitter in the usual and customary sense.\\nUpon review of the record, we find that there was sufficient evidence presented from which the jury could have reasonably concluded that the appellant was a custodian of S.D. and K.J. at the time the alleged offenses occurred. K.J., her mother, and the appellant's daughter each testified that K.J. and the appellant's daughter frequently spent nights at each other's houses. They lived on the same street. In addition, S.D. testified that the decision for her to stay at the appellant's house in 2002 was \\\"discussed between her parents and the Cecils.\\\" Moreover, the appellant testified himself that, \\\"I believe that when a child is in my home that I am supposed to look after that child. I believe that if anything happens to that child, I'm to immediately notify their parents.\\\" Thus, we find no merit to the appellant's argument that there was insufficient evidence that he was a custodian of the alleged victims.\\nThe appellant next argues that he was entitled to a judgment of acquittal because the elements necessary to convict a person under W. Va.Code \\u00a7'61-8B-7 (1984) for sexual abuse in the first degree and W.Va. Code \\u00a7 61-8D-5 (1998) for sexual abuse by a custodian are the same. The appellant maintains that the principles of double jeopardy prevent him from being convicted of both offenses for a single act. Likewise, he argues that the elements are the same under W.Va.Code \\u00a7 61-8B-4 (1991) for sexual as sault in the second degree and W.Va.Code 61-8D-5 for sexual abuse by a custodian. The appellant argues that because he was acquitted of sexual assault in the second degree of K.J., his conviction for sexual abuse by a custodian of K.J. cannot stand since it was based on the same act.\\nAgain, we find no merit to the appellant's arguments. In Syllabus Point 9 of State v. Gill, 187 W.Va. 136, 416 S.E.2d 263 (1992), this Court explained:\\nW.Va.Code, 61-8D-5(a) (1988), states, in part: \\\"In addition to any other offenses set forth in this code, the Legislature hereby declares a separate and distinct offense under this subsection[.]\\\" Thus, the legislature has clearly and unequivocally declared its intention that sexual abuse involving parents, custodians, or1 guardians, W.Va. Code, 61-8D-5, is a separate and distinct crime from general sexual offenses, W.Va. Code, 61-8B-1, et seq., for purposes of punishment.\\nWith respect to inconsistent verdicts, this Court has observed that generally, appellate review is not available. State v. Hall, 174 W.Va. 599, 602, 328 S.E.2d 206, 210 (1986). Furthermore, we cannot say that the jury's verdicts with regard to Counts 3 and 4 were inconsistent. Sexual assault in the second degree requires proof of sexual intercourse or sexual intrusion whereas sexual abuse by a custodian only requires sexual contact. The jury could have found that only sexual contact occurred.\\nC. Juror Disqualification\\nThe appellant next argues that his convictions must be reversed because one of the jurors was not a resident of Putnam County and therefore, was disqualified from serving on the jury pursuant to W.Va.Code \\u00a7 52-l-8(b) (1993). The appellant contends that a member of the jury was improperly deemed qualified for jury service in Putnam County because he was actually living in Kanawha County at the time of the appellant's trial. The juror indicated on the juror questionnaire that he was currently residing in a rented house in Charleston, Kanawha County, but that he considered his permanent address to be his parents' house in Scott Depot, Putnam County.\\nThis Court has held that, \\\"In order to receive a new trial, a party challenging a verdict based on the presence of a juror disqualified under W.Va.Code \\u00a7 52-l-8(b)(6) must show that a timely objection was made to the disqualification or that ordinary diligence was exercised to ascertain the disqualification.\\\" Syllabus Point 4, Proudfoot v. Dan's Marine Service, Inc., 210 W.Va. 498, 558 S.E.2d 298 (2001). Obviously, our holding also applies to a person disqualified under W.Va.Code \\u00a7 52 \\u2014 1\\u20148(b)(1). In this case, the record shows that with reasonable diligence, the appellant could have discovered the questionnaire completed by this juror as well as copies of correspondence that was sent to him concerning whether he was qualified to serve on the jury. The record further shows that this issue was not raised by the appellant below during post-trial motions, but instead has been presented for the first time in this appeal. Accordingly, this juror's possible disqualification does not provide grounds for setting aside the appellant's convictions.\\nD. Juror Miacouduct\\nThe appellant next argues that there was misconduct and bias on the part of certain jury members. During the hearing on the appellant's post-trial motions, counsel for the appellant advised the circuit court that he had learned that the jury foreman had contacted another attorney and informed that attorney that two other jurors had engaged in external investigations during the appellant's trial. In particular, it was asserted that these jurors had looked at the website MySpace.com after testimony was presented during the trial that at least one of the alleged victims in this case had maintained an account on the website. The circuit court was further informed that one of these jurors discussed the website with her daughter who was a fellow student with S.D. and knew her family. The circuit court was also advised that the jury foreman had indicated that a third juror had made comments to other members of the jury concerning how certain evidence should be viewed. This third juror, who was an employee of the Department of Health and Human Resources (\\\"DHHR\\\"), advised other jury members that her experience required that the jurors place more weight on the children's testimony than that of the adults.\\nIn Syllabus Point 2 of State v. Scotchel, 168 W.Va. 545, 285 S.E.2d 384 (1981), this Court observed that, \\\"Courts recognize that a jury verdict may be impeached for matters of misconduct extrinsic to the jury's deliberative process.\\\" The independent investigation by jurors in this case concerning the website discussed during the appellant's trial constitutes misconduct extrinsic to the jury's deliberative process. Upon review of the record, we conclude that if this were the only misconduct at issue, we would be hesitant to find that it was sufficiently prejudicial to warrant setting aside the verdict. It appeal's that public access to the website information specifically maintained by K.J. was restricted or removed prior to trial and, therefore, could not have been viewed by these jurors. The fact that one of the jurors may have discussed the website with her daughter who knew S.D. and her family is more troubling. However, we are most concerned with the fact that one of the jurors may have misled the jury with regard to the weight to be given to the testimony of the witnesses.\\nBy advising the other jurors that the testimony of the children had to be given greater weight than that of the appellant, the juror in question directly contradicted the circuit court's instructions. In effect, this juror, who worked for the DHHR, told other members of the jury that an incorrect legal standard should be applied to the testimony of the alleged victims in this case. This Court has long held, \\\"it is the duty of the jury to take the law from the court and to apply that law to the facts as it finds them from the evidence.\\\" Nesbitt v. Flaccus, 149 W.Va. 65, 77, 138 S.E.2d 859, 867 (1964). Simply put, \\\"[t]he [jury] instructions are the law of the case.\\\" Id. Any suggestion by an employee of the State, and not just any State employee but an employee of the DHHR, the very agency which investigates child abuse and neglect, that a different standard should be applied to the alleged victims' testimony was inherently prejudicial to the appellant. \\\"The jury in a criminal case is not the judge of the law . but must follow the instructions of the court upon the law.\\\" Syllabus Point 3, State v. Dickey, in part, 48 W.Va. 325, 37 S.E. 695 (1900).\\nClearly, the juror in question had her own preconceived notions as to the weight that should be given to the testimony of the alleged victims and shared her views with the jury during its deliberations. In Syllabus Point 1 of Scotchel, this Court recognized that, \\\"A jury verdict may not ordinarily be impeached based on matters that occur during the jury's deliberative process which matters relate to the manner or means the jury uses to arrive at its verdict.\\\" However, in State v. Strauss, 187 W.Va. 84, 415 S.E.2d 888 (1992), this Court reversed the defendant's conviction where a juror talked to one of the State's key witnesses during a recess at trial and then vouched for that witness' credibility during jury deliberations. In State v. Sutphin, 195 W.Va. 551, 557, 466 S.E.2d 402, 408 (1995), this Court explained that:\\nWe do not take lightly our responsibility in reviewing a verdict that is returned by a jury, one of whose members may have either prematurely reached a decision based on information not presented during the trial, or introduced into the jury room extrinsic information upon which other jurors may have based their decision. Any challenge to the lack of the impartiality of a jury assaults the very heart of due process. Irvin v. Dowd, 366 U.S. 717, 721-722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755 (1961). \\\"The inevitable result, of misconduct on the part of a juror is to cast suspicion on the impartiality of the verdict rendered by a jury of which he is a member.\\\" Legg v. Jones, 126 W.Va. 757, 763, 30 S.E.2d 76, 79 (1944).\\nThis Court has held that, \\\"Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.\\\" Syllabus Point 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972). Having carefully reviewed the record, we conclude that the cumulative effect of each of the instances of juror misconduct discussed above made it impossible for the appellant to receive a fair trial. We are mindful that the independent investigation conducted by two of the jurors did not bear fruit, which arguably lessens the prejudicial effect, but notwithstanding that fact, the mere fact that members of a juiy in a serious felony ease conducted any extrajudicial investigation on their own is gross juror misconduct which simply cannot be permitted. Without meaningful censure, failure to properly punish such behavior would encourage or allow its repetition. Given the independent investigation by these jurors and the fact that another juror advised that the alleged victims' testimony should be given more weight than that of the appellant contrary to the judge's instructions and our law, we have no choice but to vacate the appellant's convictions.\\nIV.\\nCONCLUSION\\nAccordingly for the reasons set forth above, the final order of the Circuit Court of Putnam County entered on April 28, 2006, is reversed. The appellant's convictions are vacated, and this case is remanded for a new trial.\\nReversed and remanded.\\nJustice MAYNARD dissents.\\n. We follow our traditional practice in cases involving sensitive facts and use initials to identify the alleged victims rather than their full names. See In the Matter of Jonathan P., 182 W.Va. 302, 303 n. 1, 387 S.E.2d 537, 538 n. 1 (1989).\\n. The exam showed no physical evidence that K.J. had been sexually assaulted.\\n. The case was submitted to the jury on a Friday, but the jury did not begin deliberations until Monday. A verdict was reached on Tuesday afternoon.\\n. The State never called the social worker as a witness.\\n. Rule 702 of the West Virginia Rules of Evidence states:\\nIf scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.\\n. It is noted that the trial transcript shows that there was some discussion about allowing the appellant to present the social worker's assessment during his case-in-chief, and then offering Dr. Cooper-Lehki's testimony as rebuttal. Eventually, counsel for the appellant decided that this would not be good trial strategy.\\n.We note that in addressing this issue the circuit court also relied upon this Court's holding in Syllabus Point 5 of State v. Harman, 165 W.Va. 494, 270 S.E.2d 146 (1980), which provides that,\\nEvidence of psychiatric disability may be introduced when it affects the credibility of a material witness' testimony in a criminal case. Before such psychiatric disorder can be shown to impeach a witness' testimony, there must be a showing that the disorder affects the credibility of the witness and that the expert has had a sufficient opportunity to make the diagnosis of psychiatric disorder.\\nWe do not find Harman applicable in this case because there was no evidence that either victim suffered from a psychiatric disability. Further more, Dr. Cooper-Lehld never met with the victims.\\n. W.Va.Code \\u00a7 61-80-1(4) (1988) defines \\\"custodian'' as,\\n[A] person over the age of fourteen years who has or shares actual physical possession or care and custody of a child on a full-time or temporary basis, regardless of whether such person has been granted custody of the child by any contract, agreement or legal proceeding. \\\"Custodian\\\" shall also include, but not be limited to, the spouse of a parent, guardian or custodian, or a person cohabitating with a parent, guardian or custodian in the relationship of husband and wife, where such spouse or other person shares actual physical possession or care and custody of a child with the parent, guardian or custodian.\\n. W.Va.Code \\u00a7 61-8B-7 (1984) provides, in pertinent part:\\n(a) A person is guilty of sexual abuse in the first degree when:\\n(1) Such person subjects another person to sexual contact without their consent, and the lack of consent results from forcible compulsion[.]\\nIt is noted that this statute was amended in 2006, but this subsection of the statute was not altered.\\n. W.Va.Code \\u00a7 61-8D-5 (1998) provides, in pertinent part:\\n(a) In addition to any other offenses set forth in this code, the Legislature hereby declares a separate and distinct offense under this subsection, as follows: If any parent, guardian or custodian of a child under his or her care, custody or control, shall engage in or attempt to engage in sexual exploitation of, or in sexual intercourse, sexual intrusion or sexual contact with, a child under his or her care, custody or control, notwithstanding the fact that the child may have willingly participated in such conduct, or the fact that the child may have consented to such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct, then such parent, guardian or custodian shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary not less than ten nor more than twenty years, or fined not less than five hundred nor more than five thousand dollars and imprisoned in the penitentiary not less than ten years nor more than twenty years.\\nThe 1998 version of the statute applies to the appellant as it was in effect at the time of the alleged offenses. However, it is noted that this statute was amended in 2005 to also apply to a \\\"person in a position of trust in relation to a child.\\\"\\n.W.Va.Code \\u00a7 61-8B-4 (1991) provides, in pertinent part:\\n(a) A person is guilty of sexual assault in the second degree when:\\n(1) Such person engages in sexual intercourse or sexual intrusion with another person without the person's consent, and the lack of consent results from forcible compulsion!)]\\n.We note that upon remand, the appellant cannot be retried on the charge of sexual assault in the second degree. \\\"The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused.\\\" Syllabus Point 1, in part, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977).\\n. W.Va.Code \\u00a7 52 \\u2014 1\\u20148(b) (1993) provides, in pertinent part:\\nA prospective juror is disqualified to serve on a jury if the prospective juror:\\n(1) Is not a citizen of the United States, at least eighteen years old and a resident of the county[.]\\nThis statute was amended in 2007; however, this provision was not altered.\\n. While it appears that this juror was disqualified because of the residency requirement, we do not reach that issue given the appellant's lack of diligence and untimely objection with respect to this matter.\\n. It appears that the jury foreman contacted an attorney who was a friend of his family seeking advice concerning what had happened during jury deliberations in the appellant's case. This attorney who was otherwise not involved in this case called the appellant's attorney and relayed this information. This attorney was then presented as a witness at the hearing on the appellant's post-trial motions.\\n. The appellant alleged that K.J. had a MySpace account and had posted a comment stating \\\"remember my face because I'm going to be famous someday.\\\" The appellant further contended that K.J. used the website to communicate with older boys contrary to her mother's testimony that K.J. was now withdrawn and did not like to be around older boys or men. This evidence was presented to the juiy through the testimony of a private detective hired by the appellant's counsel.\\n.With regard to the credit and weight to be given to the testimony of witnesses, the circuit court instructed the jury as follows;\\nA person accused of a crime should never be convicted on mere suspicion and conjecture. You are the sole judges of the credibility of the witnesses and the weight of the evidence. As used in these instructions the credibility of a witness means the truthfulness of the witness. The weight of the evidence means the extent to which you are or are not convinced by the evidence.\\n[Y]ou may give to the testimony of the witness such credit and weight as you believe such evidence is entitled to receive.\\n. As noted previously, the appellant also argues that his sentence is disproportionate in contravention of Article III, Section 5 of the West Virginia Constitution. Having found that the appellant's convictions must be vacated, we need nol address this issue.\"}"
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+"{\"id\": \"8575100\", \"name\": \"John Edward AMICK, et al., Plaintiffs Below, Appellees, v. C & T DEVELOPMENT CO., INC., a West Virginia Corporation, Elk River Sewell Coal Company, a Corporation, et al., Defendants Below, Appellant\", \"name_abbreviation\": \"Amick v. C & T Development Co.\", \"decision_date\": \"1992-04-02\", \"docket_number\": \"No. 20267\", \"first_page\": \"115\", \"last_page\": \"119\", \"citations\": \"187 W. Va. 115\", \"volume\": \"187\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T00:09:10.420191+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John Edward AMICK, et al., Plaintiffs Below, Appellees, v. C & T DEVELOPMENT CO., INC., a West Virginia Corporation, Elk River Sewell Coal Company, a Corporation, et al., Defendants Below, Appellant.\", \"head_matter\": \"416 S.E.2d 73\\nJohn Edward AMICK, et al., Plaintiffs Below, Appellees, v. C & T DEVELOPMENT CO., INC., a West Virginia Corporation, Elk River Sewell Coal Company, a Corporation, et al., Defendants Below, Appellant.\\nNo. 20267.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted Jan. 22, 1992.\\nDecided April 2, 1992.\\nWilliam W. Talbott, Webster Springs, for appellees.\\nHarry A. Smith, III, Busch, Jory, Smith & Talbott, Elkins, for appellant.\", \"word_count\": \"2111\", \"char_count\": \"12611\", \"text\": \"PER CURIAM:\\nThis is an appeal by Elk River Sewell Coal Company from an order entered by the Circuit Court of Webster County on January 22, 1991. That order awarded a number of former employees of C & T Development Company, Inc., a contractor which had worked for Elk River Sewell Coal Company, judgment against Elk River for $60,000 and attorney fees. The judgment was predicated on the fact that the contractor had not paid its employees for work performed on Elk River Sewell Coal Company's property, and that the employees, under West Virginia mechanic's lien statute, had a lien against the owner's property. Among other points, on appeal the appellant, while not challenging the mechanic's lien generally, claims that the court erred in awarding liquidated damages, that the court erred in holding that the plaintiffs below were entitled to attorney fees, and that the court erred in not considering the bankruptcy of C & T Development Company, Inc., as a factor which would mitigate its damages.\\nThe facts of this case show that on February 10, 1988, the appellant, Elk River Sewell Coal Company, entered into a contract with C & T Development Company, Inc., which provided that C & T would mine coal on property owned by the appellant. The appellant retained the right to designate the areas to he mined as well as the tonnages to be supplied. It also retained the right to specify the mining plans.\\nAfter entering into the contract, C & T commenced mining operations. Thereafter, however, C & T failed to pay its employees for the pay period ending May 19, 1989. As a consequence, the employees, except for one Michael Vandal, gave notices of mechanic's liens to C & T and the appellant, and the notices were filed in the office of the Clerk of the County Commission of Webster County in July, 1989. Michael Vandal filed a notice of a lien on August 16, 1989.\\nSubsequently, on September 14, 1989, the employees of C & T who had not been paid filed an action in the Circuit Court of Webster County to recover wages due, overtime pay, and liquidated damages. The liquidated damages claim was predicated on W.Va.Code, 21-5-4, which provides:\\n(e) If a person, firm or corporation fails to pay an employee wages as required under this section, such person, firm or corporation shall, in addition to the amount due, be liable to the employee for liquidated damages in the amount of wages at his regular rate for each day the employer is in default, until he is paid in full, without rendering any service therefor: Provided, however, that he shall cease to draw such wages thirty days after such default. Every employee shall have such lien and all other rights and remedies for the protection and enforcement of such salary or wages, as he would have been entitled to had he rendered service therefor in the manner as last employed; except that, for the purpose of such liquidated damages, such failures shall not be deemed to continue after the date of the filing of a petition in bankruptcy with respect to the employer if he is adjudicated bankrupt upon such petition.\\nParagraph 4 of the complaint set forth that wages and benefits, including liquidated damages, were due as itemized in the mechanic's or laborer's liens which were attached to the complaint as an exhibit. The prayer of the complaint sought to recover for each plaintiff the sums which were itemized, which included liquidated damages. The complaint also prayed for interest, attorney fees, and such other relief as justice would require.\\nOn February 15, 1990, an evidentiary hearing was held on the issues presented, and later, memoranda were submitted detailing the parties' positions. Subsequently, on April 2,1990, the court entered judgment in favor of the plaintiffs for $37,-329.07, the amount of wages actually due. This was not challenged by the appellant and was paid in full. The court, however, in the April 2,1990, order, held in abeyance the questions of liquidated damages and attorney fees.\\nOn January 22,1991, the court ruled that the plaintiffs were entitled to liquidated damages in the amount of $60,000 (including $2,400 for Michael Vandal), plus prejudgment interest. The court also ruled that they were entitled to attorney fees.\\nOn appeal, the appellant's first contention is that the circuit court erred in awarding liquidated damages.\\nAs previously indicated, the workmen's claims for liquidated damages in this case are predicated upon the provisions of W.Va.Code, 21-5-4, which allows liquidated damages when wages are not paid as provided by law. In Farley v. Zapata Coal Corp., 167 W.Va. 630, 281 S.E.2d 238 (1981), a case which is factually very similar to the one under consideration, the Court recognized that a proceeding for enforcement of a mechanic's or laborer's lien brought under W.Va.Code, 38-2-31, could properly be used for enforcement of a lien for liquidated damages under W.Va.Code, 21-5-1 et seq. Indeed, in syllabus point 2 of Farley, the Court said:\\nW.Va.Code \\u00a7 38-2-31 (1966) is properly used in aid of the enforcement of a lien for liquidated damages granted under W.Va.Code \\u00a7 21-5-4(e) (1978 Replacement Vol.).\\nIn reaching this conclusion, the Court noted, in the Farley case, that W. Va. Code, 21-5-4(e), explicitly provides that an employee shall have the same lien and other rights and remedies for the enforcement of his claim for liquidated damages as he would have been entitled to had he actually rendered service therefor in the manner as last employed. The Court reasoned that had the appellants actually performed labor for the employer for the period for which they claimed liquidated damages, they could have enforced a lien for their unpaid services against the employer pursuant to W. Va. Code, 38-2-31. The Court concluded that the effect of W.Va.Code, 21-5-4(e), was to create, by operation of law, a fictitious additional thirty days of employment, and to grant the employee the same remedies and procedures for enforcing his lien for the fictitious days that he would have had for the value of work actually performed.\\nCertainly, a fair reading of the complaint and Exhibit A would notify the appellant that the claimants were seeking to enforce whatever rights they had that were embodied in the liens. Given this and the overall circumstances in the present case, the Court believes that the claimants were seeking to enforce their liens when they instituted this action, and that under the rule set forth in syllabus point 2 of Farley v. Zapata Coal Corp., supra, they were entitled to collect liquidated damages in the proceeding. The Court further believes that the circuit court did not err in so ruling.\\nThe appellant also claims that the circuit court erred in awarding attorney fees to the claimants in the case.\\nAs previously indicated, this Court believes that the decision in Farley v. Zapata Coal Corp., supra, applies in this case. Syllabus point 3 of Farley specifically provides:\\nAn employee who succeeds in enforcing a claim under W.Va.Code Chapter 21, article 5 should ordinarily recover costs, including reasonable attorney fees unless special circumstances render such an award unjust.\\nIn the present case, this Court believes that the attorney fees awarded by the circuit court appear to be neither unreasonable nor unjust.\\nNext, the appellant claims that the trial court erred in not considering the bankruptcy of C & T Development Company, Inc., as a factor which would mitigate damages under W.Va.Code, 21-5-4(e).\\nAs previously indicated, W. Va. Code, 21-5-4(e), provides, in part:\\nEvery employee [an employee who has not been paid] shall have such lien and all other rights and remedies for the protection and enforcement of such salary or wages, as he would have been entitled to had he rendered service therefor in the manner as last employed; except that, for the purpose of such liquidated damages, such failures shall not be deemed to continue after the date of the filing of a petition in bankruptcy with respect to the employer if he is adjudicated bankrupt upon such petition.\\nThis Court has recognized that generally the words of a statute are to be given their ordinary and familiar significance and meaning, and regard is to be had for the general and proper use of such words. Further, the words are to be given their ordinary acceptance and significance and the meaning generally attributed to them. State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959).\\nIn examining W.Va.Code, 21-5-4(e), the Court notes that the language provides that failure to pay wages \\\"shall not be deemed to continue after the date of the filing of a petition in bankruptcy with re spect to the employer if he is adjudicated bankrupt upon such petition.\\\" The plain meaning of these words is that the limitation is to be applied only to the employer and that the limitation is to be applied to him only in the event that he has been adjudicated bankrupt.\\nThis Court believes that W. Va. Code, 21-5-4(e), would preclude the claimants from seeking wages from their immediate employer, C & T Development Co., Inc., after the date it applied for bankruptcy in the event that it is, in fact, adjudicated bankrupt. The Court, however, does not believe that the language of the statute was intended to include parties who contracted with the employer or that, under the circumstances, Elk River Sewell Coal Company should be relieved of liability simply because its contractee, C & T Development Co., Inc., filed a petition for bankruptcy.\\nLastly, the appellant claims that the trial court erred in finding that Michael Vandal, who had not perfected his laborer's lien, was entitled to liquidated damages.\\nWest Virginia Code, 38-2-32, requires that a party who obtains a lien against a corporation for work or labor must perfect that lien within ninety days by filing a notice of it with the clerk of the county court of the county in which the work was performed. It further provides that if such perfection does not occur, the lien is discharged. The specific language of the statute states:\\nSuch lien shall be discharged unless the person desiring to. avail himself thereof, within ninety days from the time he shall have ceased to work or labor for such incorporated company or for such contractor, shall file with the clerk of the county court [county commission] of the county in which such work or labor was performed, or in which the principal office, works, real estate or personal property of such incorporated company is situated, a notice of lien containing the amount due him after allowing all credits, which notice shall be sworn to by the person claiming such lien, or by someone in his behalf.\\nIn interpreting this statute, the Court has specifically indicated that the lien involved in it is discharged unless a notice thereof is filed with the clerk of the county court of the county in which such work or labor was performed. Sturgill v. Lovell Lumber Co., 136 W.Va. 259, 67 S.E.2d 321 (1951).\\nThe record of the present case shows that Michael Vandal last performed work in conjunction with the present matter on May 12,1989, and that he did not file a notice of his lien until August 16, 1989, more than ninety days after the work was performed. Given this fact, given the language of W.Va.Code, 38-2-32, and given the holding in the Sturgill case, this Court believes that the failure of Michael Vandal to file the appropriate notice of his lien within the time provided by law resulted in a discharge of that lien and that, under the circumstances, the appellant is correct in asserting that the trial court erred in finding that the said Michael Vandal was entitled to liquidated damages.\\nFor the reasons stated, this Court believes that the judgment of the Circuit Court of Webster County, insofar as it relates to an award of damages for Michael Vandal, should be reversed, and that the judgment in all other regards should be affirmed.\\nThe judgment of the Circuit Court of Webster County is, therefore, reversed insofar as it relates to the award of damages for Michael Vandal and is otherwise affirmed.\\nReversed in part; affirmed in part.\"}"
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+"{\"id\": \"8576224\", \"name\": \"STATE of West Virginia ex rel. Mario J. PALUMBO, Attorney General, Plaintiff Below, Appellant, v. GRALEY'S BODY SHOP, INC., an Ohio Corporation; Geer Brothers Body Shop, Inc., a West Virginia Corporation; Keaton's Body Shop, Inc., a West Virginia Corporation; Huntington Chrysler-Plymouth, Inc., a West Virginia Corporation; Galigher Ford, Inc., a West Virginia Corporation; Olen L. Doddridge, dba East End Body Shop; Jimmie Graley; Donald R. Graley; David Lynn Geer; Royce Dale Geer; Rick L. Keaton; Frank Horney; Jacob C. Rardin, IV; and other persons whose names and identities are not yet known to the plaintiff, Defendants Below, Appellees\", \"name_abbreviation\": \"State ex rel. Palumbo v. Graley's Body Shop, Inc.\", \"decision_date\": \"1992-12-14\", \"docket_number\": \"No. 21301\", \"first_page\": \"501\", \"last_page\": \"510\", \"citations\": \"188 W. Va. 501\", \"volume\": \"188\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T23:01:56.042437+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of West Virginia ex rel. Mario J. PALUMBO, Attorney General, Plaintiff Below, Appellant, v. GRALEY\\u2019S BODY SHOP, INC., an Ohio Corporation; Geer Brothers Body Shop, Inc., a West Virginia Corporation; Keaton\\u2019s Body Shop, Inc., a West Virginia Corporation; Huntington Chrysler-Plymouth, Inc., a West Virginia Corporation; Galigher Ford, Inc., a West Virginia Corporation; Olen L. Doddridge, dba East End Body Shop; Jimmie Graley; Donald R. Graley; David Lynn Geer; Royce Dale Geer; Rick L. Keaton; Frank Horney; Jacob C. Rardin, IV; and other persons whose names and identities are not yet known to the plaintiff, Defendants Below, Appellees.\", \"head_matter\": \"425 S.E.2d 177\\nSTATE of West Virginia ex rel. Mario J. PALUMBO, Attorney General, Plaintiff Below, Appellant, v. GRALEY\\u2019S BODY SHOP, INC., an Ohio Corporation; Geer Brothers Body Shop, Inc., a West Virginia Corporation; Keaton\\u2019s Body Shop, Inc., a West Virginia Corporation; Huntington Chrysler-Plymouth, Inc., a West Virginia Corporation; Galigher Ford, Inc., a West Virginia Corporation; Olen L. Doddridge, dba East End Body Shop; Jimmie Graley; Donald R. Graley; David Lynn Geer; Royce Dale Geer; Rick L. Keaton; Frank Horney; Jacob C. Rardin, IV; and other persons whose names and identities are not yet known to the plaintiff, Defendants Below, Appellees.\\nNo. 21301.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted Oct. 6, 1992.\\nDecided Dec. 14, 1992.\\nMario J. Palumbo, Donald Darling, Donna S. Quesenberry, Office of the Atty. Gen., Charleston, for appellant.\\nDavid Lockwood, Lockwood, Egnor, Gardner & Cyrus, Huntington, for Graley\\u2019s Body Shop, Inc., appellee.\\nWilliam D. Levine, St. Clair & Levine, Huntington, for Geer Brothers Body Shop, Inc., appellee.\\nLafe Chafin, Barrett, Chafin & Lowery, Huntington, for Keaton\\u2019s Body Shop, Inc., appellee.\\nHelen M. Morris, Baer, Colburn & Morris, Huntington, for Huntington Chrysler-Plymouth, Inc., appellee.\\nJames Allan Colburn, Baer, Colburn & Morris, Huntington, for Olen L. Doddridge, appellee.\\nFred B. Westfall, Jr., Huddleston, Bolen, Beatty, Porter & Copen, Huntington, for Galigher Ford, Inc., appellee.\", \"word_count\": \"5284\", \"char_count\": \"33348\", \"text\": \"McHUGH, Chief Justice:\\nThe Attorney General, Mario J. Palumbo, on behalf of the State of West Virginia, seeks review of an order of the Circuit Court of Cabell County which dismissed, with prejudice, a complaint filed by the Attorney General against the appellees, Graley's Body Shop, Inc., et al., alleging that they violated the West Virginia Antitrust Act (Antitrust Act), W.Va.Code, 47-18-1 to 47-18-23, as amended, by participating in a price-fixing scheme. Upon review of the case before us, we conclude that the order of the circuit court should be reversed.\\nI\\nThe Attorney General represents that, in early 1991, he received information that certain auto body repair shops in the Huntington, West Virginia area were engaged in price-fixing activities. After evaluating this information, the Attorney General concluded that there was probable cause to believe that the Antitrust Act had been violated, and initiated an investigation un der the provisions of W.Va.Code, 47-18-6 [1978] and 47-18-7 [1978].\\nPursuant to the investigation, the Attorney General caused subpoenas containing requests for production of documents and written interrogatories, and subpoenas for oral testimony to be issued to the appellees. After taking the statements of the individual appellees and reviewing the results of the investigation, the Attorney General filed a complaint against the appellees alleging price-fixing, refusing to deal, and unfair methods of competition.\\nOn April 1, 1992, one of the appellees, Olen L. Doddridge, d/b/a East End Body Shop, filed a motion to dismiss the complaint on the grounds that the State had failed to fully advise him of his rights and had breached its duty to deal with individuals with the \\\"utmost good faith.\\\" The other appellees later joined in the motion to dismiss, and raised other grounds which they alleged warranted dismissal of the complaint.\\nA hearing on the motions to dismiss was held on May 15, 1992. After hearing the parties' arguments, the circuit court ultimately found that: (1) the Antitrust Act was quasi-criminal in nature; (2) the appel-lees had the right to know they were the target of an investigation, the right to know the nature of the allegations against them and the right to know they could have counsel; (3) the State did not afford the appellees their rights; and (4) the State did not conduct itself in accordance with its duties, and its actions in this case were \\\"disgraceful, outrageous and not consistent with the standards of that office[.]\\\" The circuit court dismissed the complaint with prejudice. The Attorney General appeals that order on behalf of the State.\\nII\\nThe State first contends that the trial court erred in finding that the Antitrust Act is quasi-criminal in nature. In support of its assertion that the Antitrust Act is not quasi-criminal in nature, the State relies on a test adopted by the United States Supreme Court in United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980). The appellees, however, maintain that the trial court correctly concluded that the Antitrust Act was quasi-criminal in nature.\\nIn the Ward case, the United States appealed a decision of the United States Court of Appeals for the Tenth Circuit which held that a proceeding for a civil penalty under the Federal Water Pollution Control Act is a criminal case within the meaning of the Fifth Amendment's guarantee against compulsory self-incrimination. In reversing that decision, the Supreme Court pointed out that the question of whether a particular statutorily defined penalty is civil or criminal in nature is a matter of statutory construction. 448 U.S. at 248-49, 100 S.Ct. at 2641, 65 L.Ed.2d at 749. The Court then followed a two-level inquiry:\\nFirst, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. See One Lot Emerald Cut Stones v. United States, supra, [409 U.S. 232,] at 236-237, 93 S.Ct. [489,] at 492-493 [, 34 L.Ed.2d 438], Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.\\nAs part of the second level of the inquiry, the Supreme Court tested the statutory scheme against the following standards set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644, 661 (1963), a case involving the issue of whether statutes which imposed automatic forfeiture of citizenship were penal in character:\\nWhether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment \\u2014 retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned^]\\nApplying the first inquiry of the Ward test in the present case, we believe that the provisions of the Antitrust Act clearly reflect an intent by the legislature to have the Act serve as a civil remedy. To begin with, the legislature did not label either the investigation or the proceedings under the Antitrust Act as criminal. Although W.Va. Code, 47-18-7(a) [1978], which sets forth the Attorney General's authority under the Antitrust Act, does not refer to the proceedings as criminal or civil, other. provisions, specifically W.Va.Code, 47-18-10 [1978] and W.Va.Code, 47-18-12 [1978], refer to the State's action under the Antitrust Act as a civil proceeding. Moreover, other sections of the Antitrust Act are clearly civil in nature, such as the provisions for: (1) injunctive relief, W.Va. Code, 47-18-8 [1978]; (2) damages, attorney's fees and treble damages, W.Va. Code, 47-18-9 [1978]; (3) the four-year statute of limitations for bringing actions, W.Va.Code, 47-18-11 [1978]; and (4) the antitrust enforcement fund, W.Va.Code, 47-18-18 [1978] and 47-18-19 [1978]. Thus, we find that the Antitrust Act is comprised of provisions which clearly show the legislature's intention to establish a civil remedy for antitrust violations.\\nHaving determined that the legislature intended the Antitrust Act to be a civil remedy, we must next consider, using the Mendoza-Martinez factors, whether its sanctions are so punitive as to transform it into a criminal penalty. Applying the Mendoza-Martinez factors to the statute on its face, we first find that the sanctions under the Antitrust Act do not involve an affirmative disability or restraint. Next, as to whether the Antitrust Act has historically been considered as a punishment, we observe that monetary penalties under the Antitrust Act \\\"are traditionally a form of civil remedy[.]\\\" Ward, 448 U.S. at 256, 100 S.Ct. at 2645, 65 L.Ed.2d at 754 (Blackmun, J., concurring). See Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 527 A.2d 1368, 1373 (1987). Furthermore, there is no mention under our Antitrust Act that a finding of scienter must be made in order for the sanctions to \\\"come into play.\\\" As to the fourth factor, although the imposition of monetary sanctions could be used to \\\"promote traditional aims of punishment\\u2014retribution and deterrence,\\\" the fact that all money received by the State is placed in the antitrust enforcement fund to cover the costs incurred by the State in the enforcement of the Antitrust Act is another persuasive indication that the statute is civil. Ward, 448 U.S. at 256, 100 S.Ct. at 2645, 65 L.Ed.2d at 754 (Blackmun, J., concurring) (the fact that collected assessments under the Federal Water Pollution Control Act are deposited in a revolving fund used to defray the cost of cleanup operations is a strong indicator of the civil thrust of the statutory scheme). Finally, with respect to the sixth and seventh factors, the sole purpose of this statute thus far has been to restrain violations of the Antitrust Act, and we have not been presented with any set of facts which would indicate that it is excessive.\\nIn the present case, only the fifth factor, which relates to whether the behavior under the Antitrust Act is already a crime, might support the appellees' argument that the Antitrust Act is quasi-criminal. Under our Antitrust Act, there are no provisions recognizing violations of the statute as a crime, or providing for forfeiture of property or imprisonment upon violating the statute. Thus, a violation under our Antitrust Act only gives rise to a civil penalty.\\nThe federal Antitrust Act, on the other hand, has separate sections providing for both civil and criminal violations. A violation under our state antitrust laws could possibly give rise to a violation under the federal civil and criminal antitrust laws. However, the fact that the conduct which results in a violation of our Antitrust Act could also potentially be a violation of the criminal provisions under the federal Antitrust Act does not automatically render our state Antitrust Act quasi-criminal. Under our Antitrust Act, the legislature has specifically directed that the statute \\\"be construed liberally and in harmony with ruling judicial interpretations of comparable federal antitrust statutes.\\\" W.Va.Code, 47-18-16 [1978] (emphasis added); see also syl. pt. 2, Gray v. Marshall County Board of Education, 179 W.Va. 282, 367 S.E.2d 751 (1988) (The courts of this state are directed by the legislature in W.Va. Code, 47-18-16 [1978] to apply the federal decisional law interpreting the Sherman Act, 15 U.S.C. \\u00a7 1, to our own parallel antitrust statute, W.Va.Code, 47-18-3(a) [1978]). However, because the federal criminal antitrust provisions are not comparable to our state civil antitrust provisions, the rights afforded under the federal criminal antitrust provisions would not be applicable to our state civil antitrust statute.\\nIn summary, we hold that the question of whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction, and requires the application of a two-level inquiry adopted by the United States Supreme Court in United States v. Ward, 448 U.S. 242, 100 S.Ct. 2686, 65 L.Ed.2d 742 (1980). First, courts must determine whether the legislature indicated, either expressly or impliedly, a preference for labelling the statute civil or criminal. Second, if the legislature indicates an intention to establish a civil remedy, courts must consider whether the legislature, irrespective of its intent to create a civil remedy, provided for sanctions so punitive as to transform the civil remedy into a criminal penalty. As part of the second level of the inquiry, courts should be guided by the following factors identified by the United States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644, 661 (1963):\\nWhether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment \\u2014 retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned^]\\nIn the present case, we are not persuaded that any of the Mendoza-Martinez factors indicate that the West Virginia Antitrust Act is quasi-criminal. Therefore, we conclude that the proceedings conducted and the monetary penalties imposed under the West Virginia Antitrust Act, W.Va. Code, 47-18-1 to 47-18-23, as amended, are civil, and not quasi-criminal in nature.\\nIll\\nThe State next contends that the trial court erred in finding that the Antitrust Act and the Constitution afford a defendant the right to be apprised of the nature of the allegations against him, the right to know whether he is a target of an investigation, and the right to know that he should have counsel. Appellee Doddridge contends that the Antitrust laws are so criminal in nature as to trigger the self-incrimination clause of the Fifth Amendment. Appellees Galigher Ford, Inc. and Jacob C. Rardin argue that the same constitutional guarantees and safeguards provided under the Federal Antitrust Civil Process Act should also apply to proceedings under our state Antitrust Act. David Lynn Geer, Royce Dale Geer and Geer Brothers Body Shop, Inc., charge that the Attorney General and his staff dissuaded the appellees from seeking legal counsel, and failed to advise the appellees that they were targets of an investigation.\\nFirst, with respect to whether a defendant in an antitrust case has the right to be apprised of the nature of the allegations against him or her, we can find no provisions under our Antitrust Act which give individuals who are the subject of a civil antitrust investigation such a right. We recognize, however, that under the federal Antitrust Civil Process Act, specifically 15 U.S.C. \\u00a7 1312(b) (1988), the Attorney General is required, when issuing a civil investigative demand, to state in the demand the nature of \\\"the conduct constituting the alleged antitrust violation, . which are under investigation and the provision of law applicable thereto[.]\\\" The test as to whether the civil investigative demand complies with 15 U.S.C. \\u00a7 1312(b) (1988) is \\\"whether the statement in the demand as to the nature of the conduct under investigation is sufficient to inform adequately the person being investigated and sufficient to determine the relevancy of the documents demanded for inspection. \\\" Gold Bond Stamp Company, 221 F.Supp. 391, 397 (D.Minn.1963), aff'd, 325 F.2d 1018 (8th Cir.1964) (emphasis in original). See also Material Handling Institute, Inc. v. McLaren, 426 F.2d 90 (3rd Cir.1970), cert. denied, 400 U.S. 826, 91 S.Ct. 50, 27 L.Ed.2d 55 (1970); Lightning Rod Manufacturers Ass'n v. Staal, 339 F.2d 346 (7th Cir.1964).\\nIn the present case, the subpoenas issued by the Attorney General for documents and interrogatories contained the following closing paragraph:\\nThis subpoena is being issued pursuant to the authority granted to the Attorney General by W.Va.Code \\u00a7 47-18-7 (1986) in furtherance of an investigation into alleged anticompetitive practices in the automobile body repair services business. Such conduct may be violative of W.Va. Code \\u00a7 47-18-3 (1986).\\nThe subpoenas issued by the Attorney General requesting the appellees to appear for oral deposition stated:\\nThis subpoena is being issued pursuant to the authority granted to the Attorney General by W.Va.Code \\u00a7 47-18-7 (1986) to assist him in an investigation of possible contracts, combinations, or conspiracies to restrain trade or commerce in the autobody [sic] repair business in Cabell County, West Virginia, in violation of W.Va.Code \\u00a7 47-18-3 (1986).\\nNotwithstanding the fact that our state Antitrust Act does not have a requirement similar to 15 U.S.C. \\u00a7 1312(b), which requires the civil investigative demand to state the nature of the conduct constituting the alleged violation of the antitrust laws, we believe that the foregoing paragraph adequately informed the persons and corporations being investigated of the nature of the conduct constituting the violation.\\nNext, as to whether the appellees had the right to be informed that they were the target of an investigation, once again we find no provision under our Antitrust Act which requires the Attorney General to inform them that they are the subject of an investigation. Furthermore, while there is a requirement under the federal act to state the nature of the conduct constituting the alleged violation in the civil investigative demand, there does not appear to be a provision which would require the civil investigative demand to state that the party is under investigation. See Lightning Rod, supra (no requirement under the act that the civil investigative demand state that the addressee is under investigation); Hyster Company v. United States, supra (civil investigative demand which stated that it was issued pursuant to the provisions of the Antitrust Civil Process Act was not required to state that corporation, on which demand was served, was under investigation). Thus, there is no requirement under either the state or federal antitrust statutes which would require the Attorney General to advise a party that he or she is the target of an investigation.\\nWith respect to the appellees' arguments that they were entitled to be informed that they had a right to have counsel, we find that our Antitrust Act contains no such requirement. The federal Antitrust Civil Process Act, specifically 15 U.S.C. \\u00a7 1312(i)(7)(A) (1988), does provide, however, that \\\"[a]ny person compelled to appear under a demand for oral testimony pursuant to this section may be accompanied, represented, and advised by counsel.\\\" (emphasis added). That provision does not, however, require the Attorney General to inform any person compelled to appear for oral testimony that he or she may have counsel present.\\nTherefore, based on the discussion above, we conclude that the proceedings conducted and the monetary penalties imposed under the West Virginia Antitrust Act, W.Va.Code, 47-18-1 to 47-18-23, as amended, are civil, and not quasi-criminal in nature, and therefore, suspected violators of the Antitrust Act do not have the right to be informed that they are targets of an investigation nor do they have the right to be informed that they may have counsel present at oral deposition. In subpoenas issued pursuant to an investigation under the Antitrust Act, the Attorney General should \\u2022 adequately inform suspected violators of the conduct constituting a violation of the Antitrust Act. We find that the subpoenas issued to the appellees in the present case by the Attorney General adequately informed them of the conduct constituting a violation of the Antitrust Act.\\nIV\\nWe conclude that the circuit court erred in dismissing this case with prejudice. Thus, for the reasons set forth herein, we reverse the order of the circuit court and remand this case for further proceedings.\\nReversed and remanded.\\n. Appellees David Lynn Geer, Royce Dale Geer and Geer Brothers Body Shop, Inc., acknowledge in their brief that the State Antitrust Act \\\"has no criminal provisions with all of the attendant procedural safeguards.\\\"\\n. We note that the actions taken by the Attorney General prior to the filing of any civil antitrust complaint are investigatory. Perhaps the investigatory power of the Attorney General under W.Va.Code, 47-18-7(a) [1978] is best compared to the authority of an administrative agency to investigate prior to making any charges of a violation of the law. For example, in United States v. Morton Salt Co., 338 U.S. 632, 642, 70 S.Ct. 357, 364, 94 L.Ed. 401, 410-11 (1950), the United States Supreme Court discussed the duty of the Federal Trade Commission to inform itself and protect commerce against continued or renewed unlawful practice:\\nThe only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so. Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the [Investigative] Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because, it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, too, may take steps to inform itself as to whether there is probable violation of the law.\\n. W.Va.Code, 47-18-10 [1978] provides:\\nA final judgment rendered in any civil proceeding brought by the State for violation of this article to the effect that a defendant has violated said article shall be prima facie evidence against such defendant in any proceeding brought by any other party against such defendant pursuant to section eight [\\u00a7 47-18-8] of this article, as to all matters with respect to which said judgment of decree would be an estoppel as between the parties thereto: Provided, That this section shall not apply to consent judgments or decrees entered before any testimony has been taken.\\n(emphasis added).\\n. W.Va.Code, 47-18-12 [1978] provides, in relevant part: \\\"Whenever any civil proceeding shall be commenced by the State to prevent, restrain or punish a violation of this article, the running of the statute of limitations . shall be suspended during the pendency thereof and for one year thereafterf.]\\\"\\n. We note that the United States District Court for the Southern District of Iowa held, in State of Iowa v. Union Asphalt & Roadoils, Inc., 281 F.Supp. 391 (S.D.Iowa 1968), that an action for treble damages under the antitrust statutes is quasi-criminal in nature.\\nHowever, in contrast, the United States Supreme Court has held, in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485-86, 97 S.Ct. 690, 696, 50 L.Ed.2d 701, 710 (1977), that the treble damages provision under the Clayton Act, which makes awards available only to injured parties in private antitrust actions, is designed primarily as a remedy. West Virginia's Antitrust Act, specifically W.Va.Code, 47-18-9 [1978], also allows private individuals to recover treble damages when injured by a violation of the Act.\\nFurthermore, other courts have recognized that treble damages do not constitute a criminal penalty. The Court of Appeals for the Eighth Circuit in Crary v. Porter, 157 F.2d 410, 414 (8th Cir.1946) explained the nature of treble damages:\\n[m]ere increased or multiple damages, whether they be for exemplary or other public-interest purposes, whose allowance is dependent upon the recovery of actual damages, have never been regarded as constituting a criminal penalty. See 15 AmJur., Damages, \\u00a7 267, p. 703. A penalty in a sense they may well be, in their practical significance perhaps and to the defendant's mind no doubt, but in legal concept their allowance is simply an incident or part of the remedial sanction of damages. Stockwell v. United States, 13 Wall. 531, 547, 80 U.S. 531, 547, 20 L.Ed. 491, put it thus: 'There are many cases in which a party injured is allowed to recover in a civil action double or treble damages. It will hardly be claimed that these are penal actions requiring the application of different rules from those that prevail in other actions for indemnity.' To whatever extent, therefore, that it may be argued that double or treble damages in a civil action amount to a penalty, they are, unless the statute otherwise indicates, a mere remedial sanction and do not in any way make the action subject to the rules or privileges of a criminal prosecution.\\n.The sanction's only \\\"restraint\\\" would involve injunctive relief to prevent or restrain violations of the Antitrust Act. W.Va.Code, 47-18-8 [1978]. The courts may also \\\"grant injunctions reasonably necessary to restore and preserve competition in the trade or commerce affected by a violation of this article.\\\" W.Va.Code, 47-18-8 [1978].\\n. In Kimmelman, the Supreme Court of New Jersey, relying on the Ward decision, held that its per diem penalty for companies' participation in a price-fixing scheme under its Antitrust Act was civil, and not criminal, in nature.\\n. As for the damages received by private plaintiffs, see n. 5, supra.\\n. We point out that this factor alone would not be sufficient to render the statute quasi-criminal in light of the fact that the other factors support its characterization as a civil penalty. See Ward, 448 U.S. at 257, 100 S.Ct. at 2645, 65 L.Ed.2d at 755 (Blackmun, J., concurring).\\n. Under the Sherman Act, specifically 15 U.S.C. \\u00a7 1 (1988), \\\"[e]very person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony[.]\\\" Furthermore, under 15 U.S.C. \\u00a7 2 (1988), \\\"[ejvery person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony[.]\\\"\\n. The United States District Court for the Southern District of West Virginia pointed out in Anziulewicz v. Bluefield Community Hospital, Inc., 531 F.Supp. 49, 53 (S.D.W.Va.1981): \\\"Federal antitrust law is obviously directed toward interstate commerce. West Virginia's antitrust law is directed towards intrastate commerce.\\\" (emphasis in original).\\nThus, we note that a violation of West Virginia's Antitrust Act may not necessarily give rise to a violation of the federal antitrust laws.\\n. Olen Doddridge stated in his deposition that he asked the assistant attorney general, Donna Quesenberry, if he needed to have a lawyer present for his deposition, and that she responded \\\"You can if you want, but you don't have to have.\\\"\\n. We note that it does not appear from the record before us that any of the appellees invoked their Fifth Amendment privilege against self-incrimination, or that they were compelled to testify against themselves. However, we point out that some of the appellees in this case are business entities which have no privilege against self-incrimination. Hyster Company v. United States, 338 F.2d 183 (9th Cir.1964). See also Shim v. Kikkoman International Corp, 509 F.Supp. 736 (D.N.J.1981). We further point out that the fifth amendment privilege does not extend to the contents of documents which are obtained by compulsory process where such documents have been voluntarily prepared. Syl. pt. 9, Marano v. Holland, 179 W.Va. 156, 366 S.E.2d 117 (1988).\\nThe United States Court of Appeals for the Fifth Circuit best explained the privilege against self-incrimination in antitrust cases in In re Corrugated Container Anti-Trust Litigation, 620 F.2d 1086, 1091-92 (5th Cir.1980):\\nThe fifth amendment provides that '[n]o person . shall be compelled in any criminal case to be a witness against himself.... ' This privilege against compulsory self-incrimination 'can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory....' Kastigar v. United States, 406 U.S. 441, 444, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972). A witness may properly invoke the privilege when he 'reasonably apprehends a risk of self-incrimination, . though no criminal charges are pending against him, . and even if the risk of prosecution is remote.' Wehling v. Columbia Broadcasting System, 608 F.2d 1084, 1087 n. 5 (5th Cir.1979) (citations omitted).\\nThe Wehling test indicates that a court must ordinarily make two inquiries to determine whether a witness is entitled to assert the privilege and refuse to respond to questioning. First, the court must determine whether answers to the questions might tend to reveal that the witness has engaged in criminal activities. If the answers could not be incriminatory, the witness must answer. Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972). If answering the questions might incriminate the witness, the court must next ask whether there is a risk, even a remote risk, that the witness will be prosecuted for the criminal activities that his testimony might touch on. As the Seventh Circuit recently observed:\\n[This determination does not depend] upon a judge's prediction of the likelihood of prosecution. Rather, . it is only when there is but a fanciful possibility of prosecution that a claim of fifth amendment privilege is not well taken.... When a witness can demonstrate any possibility of prosecution which is more than fanciful he has demonstrated a reasonable fear of prosecution sufficient to meet constitutional muster.\\nIn re Folding Carton Antitrust Litigation, 609 F.2d 867, 871 (7th Cir.1979) (citations omitted).\\nThe Sixth Circuit further pointed out, however, that even if a witness establishes a reasonable fear of self-incrimination and prosecution, he or she may be compelled to testify if he or she is granted \\\"use\\\" immunity pursuant to 18 U.S.C. \\u00a7 6001-6003. See 15 U.S.C. \\u00a7 1312(i)(7)(B) (1988).\\n. We note that Galigher Ford, Inc. and Jacob C. Rardin, IV, assert that \\\"it is obvious that the State Attorney General used this particular civil litigation as a forum for his unsuccessful bid for the Democratic gubernatorial candidacy.\\\" (emphasis added). We find nothing \\\"obvious\\\" in the record to support this bald assertion of conjecture.\\n. David Lynn Geer, Royce Dale Geer and Geer Brothers Body Shop, Inc. alleged in their brief that\\n[b]ecause autobody [sic] repairs are underwritten by insurance companies, it is suspected that the Attorney General had become a 'tool' of the insurance companies, who was being used by them to benefit their 'bottom lines' at the expense of the autobody [sic] repair industry. In their zeal to perform this function for the insurance industry, the Attorney General and his assistants ignored their ethical obligations as attorneys and trampled the rights of the small, relatively unsophisticated businesses involved.\\n(emphasis added). The record is devoid of any evidence to support these speculative assertions.\\n. The Antitrust Civil Process Act empowers the Attorney General or the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice, to issue, prior to the initiation of any civil or criminal proceeding, a demand for documentary material relevant to a civil antitrust investigation. United States v. International Business Machines Corp., 83 F.R.D. 97 (S.D.N.Y.1979); 15 U.S.C. \\u00a7 1312 (1988). The purpose of the civil investigation demand procedure under the Antitrust Civil Process Act is to allow the antitrust division to investigate antitrust violations without prematurely becoming involved in a full-blown litigation. Associated Container Transportation (Australia) Ltd. v. United States, 502 F.Supp. 505 (S.D.N.Y.1980).\\n. The court also held in Gold Bond that the power granted the Attorney General under the federal antitrust statute did not violate the search and seizure clause of the Fourth Amendment to the Constitution. The Ninth Circuit reached the same conclusion in Hyster Company v. United States, 338 F.2d 183 (1964) (civil investigative demand under Antitrust Civil Process Act is not unreasonable search and seizure in violation of Fourth Amendment to the Constitution ).\\n. It is not clear to this Court why the circuit court dismissed this case with prejudice, although the circuit court sharply criticized the Attorney General's conduct during the investigation. The motions before the circuit court were not for summary judgment pursuant to W.Va.R.Civ.P. 56, which would be a dismissal with prejudice. However, the State points out that, although the motions were designated as motions to dismiss, they brought in matters outside the pleadings and therefore, became motions for summary judgment. We point out that a judgment sustaining a motion to dismiss under W.Va.R.Civ.P. 12(b) would be a dismissal without prejudice.\\n. Because we are reversing this case, we do not address the issue raised by the State regarding the circuit court's consideration of certain affidavits.\"}"
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+"{\"id\": \"8576340\", \"name\": \"Ruth PERRY v. Charles MILLER, Commissioner of West Virginia Department of Highways\", \"name_abbreviation\": \"Perry v. Miller\", \"decision_date\": \"1989-04-13\", \"docket_number\": \"No. 18664\", \"first_page\": \"192\", \"last_page\": \"193\", \"citations\": \"181 W. Va. 192\", \"volume\": \"181\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T21:59:13.772679+00:00\", \"provenance\": \"CAP\", \"judges\": \"McHUGH, J., deeming himself disqualified, did not participate in the decision of this case.\", \"parties\": \"Ruth PERRY v. Charles MILLER, Commissioner of West Virginia Department of Highways.\", \"head_matter\": \"382 S.E.2d 29\\nRuth PERRY v. Charles MILLER, Commissioner of West Virginia Department of Highways.\\nNo. 18664.\\nSupreme Court of Appeals of West Virginia.\\nApril 13, 1989.\\nRehearing Denied July 20, 1989.\\nCharles R. Garten, Charleston, Mike Kelly, Williamson, for appellant.\\nFrank S. Curia, Legal Div., DOH, Charleston, for appellee.\", \"word_count\": \"855\", \"char_count\": \"5358\", \"text\": \"PER CURIAM:\\nThis is an appeal by Ruth Perry from an order of the Circuit Court of Kanawha County entered on July 31, 1987. That order affirmed a decision of the Commissioner of the West Virginia Department of Highways terminating the appellant's employment with the Department for insubordination. On appeal the appellant, among other points, claims that the decision was clearly wrong in view of the reliable, probative, and substantial evidence in the record. This Court disagrees and affirms the decision of the Circuit Court of Kanawha County-\\nThe appellant was employed as a Clerk II with the Department of Highways and in 1977 was working in the Mingo County Maintenance Division of the Second District of the Department. On October 28, 1977, she was discharged from her position for insubordination.\\nAt the time of the discharge the appellant was an at-will employee and was not under civil service coverage. Also, at the time the Department of Highways had not promulgated rules or regulations relating to the discharge of employees, and the appellant had not been given any type of tenure right to employment with the Department. The Department, however, allowed her to prosecute a grievance under a State personnel grievance procedure adopted by the Department for certain of its employees. In accordance with the grievance procedure, a board of employees appointed by the district engineer for the Second District was set up, and a hearing was conducted.\\nThe record before the Court as to what happened before the grievance board is very incomplete. However, it appears that in initiating the grievance the appellant claimed that she was the victim of political or sex discrimination.\\nOn April 11, 1979, the board issued a decision holding that the appellant's termination was unwarranted because the evidence showed that she had previously been suspended for a period of two and one-half days for the same infraction and that no further activity on her part warranted augmentation of the sanction.\\nAfter the board issued its decision, Charles Miller, Commissioner of the West Virginia Department of Highways, reviewed the board's findings and entered a decision reversing the board's conclusions. Mr. Miller essentially upheld the appellant's termination on the ground that the review board did not address the discrimination questions raised in the appellant's original grievance.\\nThe appellant appealed the Commissioner's decision to the Circuit Court of Kana-wha County. She alleged that Mr. Miller's reversal of the board's decision denied her due process of law in that it was made without a thorough review of the r\\u00e9cord and without prior notice and without opportunity for a response. She also claimed that Mr. Miller's action was clearly wrong in view of the reliable, probative, and substantial evidence in the case.\\nBy order dated July 31, 1987, the circuit court affirmed the decision of the Commissioner of the West Virginia Department of Highways. The court stated that, based upon its review of the file, the petitioner was i properly terminated for insubordination. It is from the circuit court's conclusion that the appellant now appeals.\\nIn syllabus point 2 of State ex rel. Staley v. Wayne County Court, 137 W.Va. 431, 73 S.E.2d 827 (1953), this Court stated that:-\\nIn the absence of evidence to the contrary public officers will be presumed to have properly performed their duties and not to have acted illegally, but regularly and in a lawful manner.\\nIn the present case, it appears to the Court that the appellee, Charles Miller, Commissioner of the West Virginia Department of Highways, properly referred the appellant's grievance relating to her dismissal to a board of employees set up to conduct a hearing. That Board did conduct a hearing and concluded that the appellant's dismissal was unwarranted. Subsequently, appellee Miller refused to follow the board's findings and affirmed the dismissal. It appears that he did so because the board refused to address issues which he considered relevant to the proceeding and which the briefs suggest were raised. The circuit court affirmed Commissioner Miller's decision.\\nAs indicated in the Staley case, supra, public officers are presumed to have acted in a proper manner, and it is incumbent upon the party challenging their actions to show that the actions were improper. In the present case there is some indication that the appellant predicated her action on some sort of discrimination. Commissioner Miller concluded that she failed to present evidence supporting her claim.\\nGiven the nature of the record, this Court cannot say that that conclusion was improper, and in view of the rule that an officer's acts will be presumed to have been properly performed, the Court cannot conclude that the circuit court erred in affirming Commissioner Miller's decision.\\nThe judgment of the Circuit Court of Kanawha County is, therefore, affirmed.\\nAffirmed.\\nMcHUGH, J., deeming himself disqualified, did not participate in the decision of this case.\"}"
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+"{\"id\": \"8577035\", \"name\": \"Mary Margaret DOWNEY, Plaintiff Below, Appellant, v. Gordon Chris KAMKA, Defendant Below, Appellee\", \"name_abbreviation\": \"Downey v. Kamka\", \"decision_date\": \"1993-03-25\", \"docket_number\": \"No. 21188\", \"first_page\": \"141\", \"last_page\": \"145\", \"citations\": \"189 W. Va. 141\", \"volume\": \"189\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T22:24:41.108429+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mary Margaret DOWNEY, Plaintiff Below, Appellant, v. Gordon Chris KAMKA, Defendant Below, Appellee.\", \"head_matter\": \"428 S.E.2d 769\\nMary Margaret DOWNEY, Plaintiff Below, Appellant, v. Gordon Chris KAMKA, Defendant Below, Appellee.\\nNo. 21188.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted Jan. 19, 1993.\\nDecided March 25, 1993.\\nRobin Jean Davis, Charleston, for appellant.\\nJohn J. Charonko, Charleston, for appel-lee.\", \"word_count\": \"2365\", \"char_count\": \"14347\", \"text\": \"PER CURIAM:\\nThis action is before this Court upon an appeal from the October 1, 1991, order of the Circuit Court of Kanawha County, West Virginia, which granted the parties a divorce upon the grounds of irreconcilable differences. The circuit court awarded custody of the parties' child, Caitlin Chris Downey, who was bom on July 29,1989, to the appellant, Mary Margaret Downey. The appellee is Gordon Chris Kamka. The appellant raises four issues on appeal: (1) the date the child support award is to become effective; (2) whether the appellant is required to pay one-half of the tax debt indebtedness incurred by the appellee prior to the parties' marriage; (3) whether the appellant is further required to pay one-half of the outstanding taxes due and owing to the State and one-half of an accounting bill which were incurred during the marriage; and (4) whether the appellant is entitled to one-half of the equity in certain farm equipment which accrued during the marriage.\\nThe parties to this action were married on May 9, 1987, and separated on April 4, 1989. The civil action seeking the divorce was filed in the Circuit Court of Kanawha County, West Virginia on October 24, 1989.\\nOn February 13, 1990, the parties entered into an agreed temporary order with regard to issues concerning custody, child support and exclusive use and possession of certain marital assets. In her recommended decision, on March 25, 1991, the family law master utilized the child support formula and recommended an increase in child support from $800.00 per month, as stated in the agreed temporary order, to $1,148.50 per month. Furthermore, the family law master recommended that outstanding taxes due and owing to the State is a marital indebtedness to be divided equally between the parties, and that the farm equipment is the appellee's separate property.\\nOn October 1, 1991, the circuit court judge affirmed the findings of fact and conclusions of law as recommended by the family law master on March 25, 1991.\\nThis Court has before it the petition for appeal, all matters of record and the briefs of counsel. For the reasons stated below, the judgment of the circuit court is affirmed, in part, and reversed, in part.\\nThe appellant's first contention is that the appellee should be required to pay the increase in the child support retroactively to the date of the recommended decision of the family law master. Specifically, the appellant seeks approximately $2,440.00 in child support between March 25,1991, the date of the recommended decision, and October 1,1991, the date the final order was entered.\\nThe appellant primarily argues that it is not in the best interest of the child to be deprived of child support payments because of delays in our judicial system. We have recognized the importance of considering the best interest of the child when determining the date the child support award is to become effective. See Marsh v. Marsh, 183 W.Va. 279, 282, 395 S.E.2d 523, 526 (1990). However, it is well established that \\\"questions relating to alimony and to the maintenance and custody of the children are within the sound discretion of the trial court and its action with respect to such matters will not be disturbed on appeal unless it clearly appears that such discretion has been abused.\\\" Syl., Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977).\\nThe record is unclear as to what caused the delay. The appellee suggests that the delay was based upon a combination of the trial judge failing to timely receive income information he requested, and the parties filing numerous motions and pleadings after the hearing before the judge. On the other hand, the appellant asserts that much of the paperwork was a result of the appel-lee's failure to comply with various orders entered by the circuit court. Yet, these petitions, as the appellant argues, had no effect on the speed of the decision on exceptions before the judge.\\nFurthermore, the record has not been developed to show any abuse in discretion by the trial judge in not granting the child support retroactively to the recommendation of the family law master. Moreover, it is important to note that there is nothing in the record to indicate that the retroactivity issue was ever raised below.\\nWe, therefore, find that the record is void of any clear-cut evidence that would tend to prove that the circuit court's delay and setting the date of the child support payments on the date of its order was an abuse of its discretion. Thus, we affirm the ruling of the circuit court.\\nNext, the appellant contends that she is entitled to be reimbursed for one-half of the pre-marital tax debt, incurred by the appellee prior to the parties' marriage, which was later paid with marital funds. We agree with the appellant.\\nThe appellee admitted that he paid all of his 1985-86 tax liabilities, totalling $27,-595.00, during the parties' marriage. The amount of indebtedness was obviously reduced through the expenditure of marital assets. See W.Va.Code, 48-2-l(e)(l) & (2) [1992].\\n\\\"In a divorce suit the finding of fact of a trial chancellor based on conflicting evidence will not be disturbed on appeal unless it is clearly wrong or against the preponderance of the evidence.\\\" Syl. pt. 3, Taylor v. Taylor, 128 W.Va. 198, 36 S.E.2d 601 (1945). In this case, we are of the opinion that the circuit court erred in requiring the appellant to pay one-half of the appellee's tax indebtedness of $27,595.00, incurred by the appellee prior to the parties' marriage. We reverse the ruling of the circuit court and find that the appellee shall reimburse the appellant for one-half of the premarital tax debt which was paid with marital funds, or $13,797.50. See syllabus, Spielman v. Spielman, 181 W.Va. 178, 381 S.E.2d 377 (1989).\\nThe third issue before us is the appellant's contention that she should not be required to pay one-half of the $5,784.00 in outstanding taxes due and owing to the State, or $2,892.00, plus one-half of the appellee's $3,000.00 marital accounting bill, or $1,500.00, for a total of $4,392.00. We disagree.\\nMr. Luther Hanson, the parties' accountant, provided information to the circuit court regarding the $5,784.00 in West Virginia state taxes still due and owing for the years 1987, 1988, and 1989, during which the parties were married.\\nThe appellant argues that during the marriage, the parties filed separate tax returns, and the appellant paid her taxes in a timely fashion, unlike the appellee. The appellant further argues that it is unfair to require her to pay $4,392.00 or one-half, respectively, of the outstanding taxes and accounting bills which were the direct result of the appellee's failure to timely pay his share of the taxes. The fact that the parties filed separate tax returns during their marriage is irrelevant, because the tax liability incurred was a marital debt.\\nSimilarly, the marital accounting bill was incurred during the marriage for the benefit of the parties and is also a marital debt. Mr. Ira Sugar preceded Mr. Luther Hanson as the parties' accountant, but part of Mr. Sugar's bill remained unpaid.\\nIn a divorce action, the parties must comply with the discovery rules pursuant to Rule 81(a)(2) of the West Virginia Rules of Civil Procedure. The court may also require each party to furnish information pertaining to all assets owned by the parties including all debts and liabilities owed by the parties. W.Va.Code, 48-2-33 [1992]. See also syllabus point 1, Hamstead v. Hamstead, 178 W.Va. 23, 357 S.E.2d 216 (1987), overruled on another point, syl. pt. 4, Roig v. Roig, 178 W.Va. 781, 364 S.E.2d 794 (1987). This information is necessary to enable the circuit court to carry out the equitable distribution process. More specifically, equitable distribution allocates the assets and liabilities between the parties.\\nEquitable distribution under W. Va. Code, 48-2-1, et seq., is a three-step process. The first step is to classify the parties' property as marital or nonmari-tal. The second step is to value the marital assets. [W.Va. Code, 48-2-32(d)(1) [1984]]. The third step is to divide the marital assets between the parties in accordance with the principles contained in W.Va.Code, 48-2-32.\\nSyl. pt. 1, Whiting v. Whiting, 183 W.Va. 451, 396 S.E.2d 413 (1990). In the instant case, we are concerned with step two. \\\"For purposes of equitable distribution, W.Va.Code, 48-2-32(d)(l) [1984], requires that a determination be made of the net value of the marital property of the parties.\\\" Syl. pt. 2, Tankersley v. Tankersley, 182 W.Va. 627, 390 S.E.2d 826 (1990). Specifically, \\\"[i]n computing the value of any net asset, the indebtedness owed against such asset should ordinarily be deducted from its fair market value.\\\" Syl. pt. 3, in part, LaRue v. LaRue, 172 W.Va. 158, 304 S.E.2d 312 (1983).\\nIn the case before us, the record indicates that the family law master appropriately considered the value of all the parties' assets against the debts and liabilities of the parties in arriving at an equal distribution of the same. This includes the equitable distributions of the outstanding tax debt and accounting bill incurred during the marriage. Thus, the ruling of the circuit court that the parties assume equal responsibility of the outstanding tax and accounting debts incurred during the marriage is affirmed.\\nThe final issue before us deals with the appellant's contention that she is entitled to one-half of the equity in the farm equipment which accrued during the parties' marriage. It is undisputed that the farm equipment was acquired by the appellee prior to the marriage and that marital assets were used to make payments on the farm equipment during the marriage. A payment schedule was introduced into evidence by the appellant which reflects that the total equity paid on the equipment during the marriage was $6,000.00.\\nThe appellant correctly argues that she is entitled to her equity in the farm equipment in the amount of $3,000.00. Pursuant to W.Va.Code, 48-2-l(e)(2)(A) [1992], marital property, as relevant herein, is:\\nthe amount of any increase in value in the separate property [separate property means property acquired by a person before marriage. W.Va.Code, 48-2-l(f)(l) [1992].] of either of the parties to a marriage, which increase results from an expenditure of funds which are marital property, including an expenditure of such funds which reduces indebtedness against separate property, extinguishes liens, or otherwise increases the net value of separate property[.]\\n\\\"In the absence of a valid agreement, the trial court in a divorce case shall presume that all marital property is to be divided equally between the parties[.]\\\" Syl. pt. 1, in part, Somerville v. Somerville, 179 W.Va. 386, 369 S.E.2d 459 (1988). To assist in the equitable distribution, W.Va.Code, 48-2-32(d)(7)(C) [1984] provides, in part:\\nTo make such equitable distribution, the court may: direct either party to pay a sum of money to the other party in lieu of transferring specific property or an interest therein, if necessary to adjust the equities and rights of the parties, which sum may be paid in installments or otherwise, as the court may direct[.]\\nWhen the factors outlined above are considered, it is clear that the circuit court erred in holding that the farm equipment is the appellee's sole and separate property. Therefore, we find that the appellant is entitled to $3,000.00, or one-half of the equity in the farm equipment which accumulated during the marriage.\\nAccordingly, we find that the record has not been sufficiently developed to determine that the circuit court's delay in ruling upon this case was an abuse of the court's discretion, and, furthermore, there is nothing in the record to indicate that the re-troactivity issue was ever raised below. The effective date of the child support award will therefore remain October 1, 1991. However, the circuit court did err in requiring the appellant to pay one-half of the appellee's tax indebtedness which was incurred prior to the marriage, and thus, the appellee shall reimburse the appellant for one-half of the premarital tax debt which was paid with marital funds, or $13,-797.50. We further find that the circuit court was correct in its decision that the appellant be required to pay $4,392.00, which is one-half of the $5,784.00 in outstanding taxes due and owing to the State, or $2,892.00, plus one-half of the $3,000.00 accounting bill incurred during the marriage, or $1,500.00. Finally, the circuit court's decision is reversed insofar as we find the farm equipment to be marital property, and as a result of its new status, the appellant is entitled to $3,000.00, or one-half of the equity which accumulated in the farm equipment during the marriage.\\nThus, for the reasons set forth herein, this Court is of the opinion that the final order of the Circuit Court of Kanawha County should be affirmed, in part, and reversed, in part.\\nAffirmed, in part; reversed, in part.\\n. During evidentiary hearings, the testimony focused on custody and visitation issues relating to the parties' child. The appellant filed a petition for contempt on June 5, 1991, for the appel-lee's failure to comply with the visitation schedules. In reply, the appellee filed a counter petition for contempt on June 26, 1991, for the appellant's failure to comply with previous visitation orders of the circuit court.\\n. Rules for Practice and Procedure for Family Law tire now being considered for adoption by the Court. These rules are being designed to govern the procedures applicable to actions filed pursuant to chapters 48 and 48A (48-1-1, et seq. and 48A-1-1, et seq.) of the W.Va.Code before family law masters and circuit court judges. Chapter XI, section 43(c) of the rules addresses the date the child support orders are to become effective. The rule states that unless a circuit judge or family law master expressly states otherwise, the effective date of the order establishing support is the date the child support pleading was filed.\"}"
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+"{\"id\": \"8577399\", \"name\": \"Betty KOSEGI, Administratrix of the Estate of Kathryn Katic, Deceased, Plaintiff Below, Appellant, v. Charles M. PUGLIESE and Thelma M. Pugliese d/b/a the Rogers Hotel, Defendants Below, Appellees\", \"name_abbreviation\": \"Kosegi v. Pugliese\", \"decision_date\": \"1991-07-09\", \"docket_number\": \"No. 19554\", \"first_page\": \"384\", \"last_page\": \"388\", \"citations\": \"185 W. Va. 384\", \"volume\": \"185\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T02:44:48.723990+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Betty KOSEGI, Administratrix of the Estate of Kathryn Katic, Deceased, Plaintiff Below, Appellant, v. Charles M. PUGLIESE and Thelma M. Pugliese d/b/a the Rogers Hotel, Defendants Below, Appellees.\", \"head_matter\": \"407 S.E.2d 388\\nBetty KOSEGI, Administratrix of the Estate of Kathryn Katic, Deceased, Plaintiff Below, Appellant, v. Charles M. PUGLIESE and Thelma M. Pugliese d/b/a the Rogers Hotel, Defendants Below, Appellees.\\nNo. 19554.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted May 7, 1991.\\nDecided July 9, 1991.\\nMarc B. Chernenko and William J. Ihlen-feld, Wheeling, for appellant.\\nWilliam T. Fahey, Weirton, for appellees.\", \"word_count\": \"2005\", \"char_count\": \"12617\", \"text\": \"WOKKMAN, Justice:\\nAppellant Betty Kosegi, administratrix of the estate of Kathryn Katie, appeals from an adverse summary judgment ruling in the wrongful death civil action which she initiated on behalf of her deceased mother's estate. Appellees are the owners of The Kogers Hotel (\\\"hotel\\\"), the place of Mrs. Katie's employment and the location of her death. Based on its determination that the hotel was not in default of its obligation to pay workers' compensation premiums, the Circuit Court of Ohio County ruled that appellant was not entitled to bring a common-law negligence action against the hotel pursuant to applicable workers' compensation statutes. Our review of the applicable statutes convinces us that the hotel was in default of its obligation to the West Virginia Workers' Compensation Fund (\\\"Fund\\\") and accordingly the circuit court erred in granting summary judgment in favor of appellees.\\nDuring the early morning hours of December 23,1982, the now-deceased Kathryn Katie was a seventy-year-old employee at the hotel which is located in Wheeling, West Virginia. As the night maid, Mrs. Katie's various duties included registering new guests, cleaning the lobby, and performing routine inspections of the hotel's various floors. Her normal hours of employment were from 11:00 p.m. to 7:00 a.m. On December 23, 1982, a hotel guest discovered Mrs. Katie's body on the floor of the hotel's elevator at approximately 3:00 a.m. Mrs. Katie had been stabbed to death.\\nBased on her position that the volume of crimes which had occurred on the premises during the ten years prior to Mrs. Katie's murder rendered the hotel a dangerous place of employment, appellant initiated a cause of action against the hotel predicated on theories of common-law negligence and Mandolidis. When summary judgment was granted, the common-law negligence claim was the only remaining cause of action because appellant had voluntarily dismissed the Mandolidis claim.\\nThe parties concur that appellant's negligence claim can only be pursued if the hotel was in default of its obligation to remit workers' compensation premiums and therefore subject to a common-law negligence cause of action pursuant\\\"to W.Va. Code \\u00a7 23-2-6 (1985). That statutory provision provides, in pertinent part, that\\n[a]ny employer subject to this chapter who shall subscribe and pay into the workmen's compensation fund the premiums provided by this chapter . shall not be liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring . during any period in which such employer shall not be in default in the payment of such premiums or direct payments and shall have complied fully with all other provisions of this chapter.\\nThe clear import of this statutory provision is that an employer who is in default of its obligation to remit workers' compensation premiums to the Fund is not entitled to immunity from common-law liability.\\nWorkers' compensation premiums are required to be paid on a quarterly basis \\\"on or before the last day of the month following the end of the quarter.\\\" W.Va.Code \\u00a7 23-2-5(a) (1985). Appellees do not dispute that the quarterly premium and payroll report due for the quarter preceding the death of Mrs. Katie, i.e., July 1 to September 30, 1982, were not paid or filed respectively with the Fund. Appellees' admit, additionally, that the workers' compensation premium and payroll report due for the quarter in which Mrs. Katie was killed, i.e., October 1 to December 31, 1982, were likewise not paid or filed pursuant to the time schedule established by W.Va.Code \\u00a7 23-2-5(a).\\nThe hotel ultimately paid its workers' compensation premiums for the third and fourth quarters of 1982 on March 22, 1983. Appellant maintains that appellees' failure to timely submit workers' compensation premiums for the second two quarters in 1982 rendered them in default with respect to the state's workers' compensation laws and thereby stripped appellees of their entitlement to immunity from common-law liability. See W.Va.Code \\u00a7 23-2-6. Appel-lees take the position that notwithstanding their delinquent payments for the second two quarters in 1982, they were not in default with respect to the payment of such premiums and are therefore still exempted from common-law liability.\\nAppellees' sole basis for contesting that they were statutorily in default for failure to remit premium payments is the 1984 amendment to W.Va.Code \\u00a7 23-2-5. The provisions of W.Va.Code \\u00a7 23-2-5 as in effect in 1982 required that an employer who was delinquent in the payment of workers' compensation premiums \\\"shall be deprived of the benefits and protection af forded by this chapter, including section six [\\u00a7 23-2-6] of this article, and shall be liable as provided in section eight [\\u00a7 23-2-8] of this article, as well as for all benefits paid to said employee as provided by this chapter.\\\" Pursuant to the 1982 statute, an employer whose failure to timely remit premiums rendered him delinquent within the scheme of the workers' compensation system was thereby mandatorily subjected to common-law negligence liability.\\nUnder the 1982 statute, the workers' compensation commissioner was not required to notify an employer that its delinquency rendered it in default and consequently deprived it of the benefits and protection afforded by Chapter twenty-three. When W.Va.Code \\u00a7 23-2-5 was amended in 1984, the amendments included a provision which required the commissioner \\\"in writing, within sixty days of the end of each quarter [to] notify all delinquent employers of their failure to timely pay premiums, to timely file a payroll report, or to maintain an adequate premium deposit.\\\" W.Va. Code \\u00a7 23-2-5(b) (1984). The amendments further provided that \\\"[fjailure by the employer, who is required to subscribe to the fund and who fails to resolve his delinquency within the prescribed period [before the end of the third month following the end of the preceding quarter], shall place the account in default and shall deprive such defaulting employer of the benefits and protection afforded by this chapter....\\\" W.Va.Code \\u00a7 23-2-5(d) (1984).\\nNotwithstanding the fact that statutory amendments are commonly viewed as operating prospectively rather than retroactively, appellees contend that the 1984 amendments to W.Va.Code \\u00a7 23-2-5 should be applied retroactively to preclude the hotel from being declared in default. See Maxwell v. State Compensation Director, 150 W.Va. 123, 125, 144 S.E.2d 493, 495 (1965), overruled on another point by Sizemore v. State Workmen's Compensation Comm'r, 159 W.Va. 100, 219 S.E.2d 912 (1975). This Court recognized in Maxwell that:\\n[workmen's compensation statutes, or amendments of such statutes, which affect merely the procedure may be construed to have a retroactive operation; but any such statute or amendment which affects the substantial rights or obligations of the parties to the contract arising from the employment relationship or which impairs the obligation of such a contract cannot be construed to operate retroactively.\\nId. at Syl. Pt. 3. The amendment to W.Va. Code \\u00a7 23-2-5 which now requires the commissioner to advise an employer of its delinquent status with respect to premium payments is certainly procedural in nature. Nonetheless, because appellant would be denied the right to bring a common-law negligence civil action under the 1984 version of the statute while she is clearly entitled to bring that type of action under the 1982 version of the same statutory provision, the retroactive application of this amendment would clearly affect appellant's substantive rights. Accordingly, the 1984 amendments cannot be applied retroactively under this Court's holding in Maxwell. See 150 W.Va. at 126, 144 S.E.2d at 496; see also Pnakovich v. SWCC, 163 W.Va. 583, 590, 259 S.E.2d 127, 130 (1979) (fundamental principle controlling retroactive application of statute is \\\"whether the individual has changed his position in reliance upon existing law, or whether the retrospective act defeats the reasonable expectations of the parties it affects\\\").\\nAppellees' argument for retroactive application of the 1984 amendments to W.Va. Code \\u00a7 23-2-5 is even less convincing in light of the facts of this case. Notwithstanding the fact that the commissioner was not required to notify appellees of their delinquency under the 1982 statute, appellees admit that they did in fact receive the following notice:\\nFAILURE TO FILE QUARTERLY REPORTS OR TO PAY PREMIUMS BY THE LAST DAY OF THE MONTH FOLLOWING THE QUARTER COVERED BY THIS REPORT, OR TO DEPOSIT AMOUNTS REQUIRED BY THE COMMISSIONER, WILL RESULT IN PENALTIES AND TERMINATION OF YOUR PROTECTION BY THE WORKERS' COMPENSATION FUND.\\nThis notice was boldly imprinted on the premium form supplied by the Fund for use during the fourth quarter of 1982. That same form bore the additional notation \\\"DELINQUENT\\\" in the upper right-hand corner. Given these additional facts, we fail to see how appellees can place any significance on the 1984 notice-related amendments to W.Va.Code \\u00a7 23-2-5 as they clearly were apprised of both their delinquent status and the deleterious effects of such status.\\nFinally, appellees' contention that W.Va.Code \\u00a7 23-2-5, as effective in 1982, was ambiguous is simply not tenable. The statute clearly provided in no uncertain terms that an employer who failed to timely remit workers' compensation premiums was delinquent within the meaning of the statutory scheme and was mandatorily deprived of immunity from common-law liability. As we recognized in Cummins v. State Workmen's Compensation Comm'r, 152 W.Va. 781, 166 S.E.2d 562 (1969), \\\"[w]hen a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.\\\" Id. at Syl. Pt. 1. Given the lack of any ambiguity regarding the mandatory imposition of common-law liability as an automatic penalty for an employer delinquent within the meaning of the 1982 statute, we find appellees' argument on this point to be groundless.\\nBased on the foregoing, the decision of the Circuit Court of Ohio County is hereby reversed.\\nReversed.\\n. See Mandolidis v. Elkins Indus., Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978).\\n. Pursuant to the statutory payment schedule set forth in W.Va.Code \\u00a7 23-2-5(a), the hotel's premium for the third quarter of 1982 (July 1-September 30, 1982) was due to be filed on or before October 31, 1982. The premium for the fourth quarter of 1982 (October 1 \\u2014 December 31, 1982) was required to be paid no later than January 31, 1983.\\n. West Virginia Code \\u00a7 23-2-8 (1985) states, in pertinent part, as follows:\\nAll employers required by this chapter to subscribe to and pay premiums into the workmen's [workers'] compensation fund, . and who do not subscribe to and pay premiums into the workmen's compensation fund as required by this chapter and have not elected to pay individually and directly or from benefit funds compensation and expenses to injured employees or fatally injured employees' dependents under the provisions of section nine [\\u00a7 23-2-9] of this article, or having so subscribed or elected, shall be in default in the payment of same, or not having otherwise fully complied with the provisions of section five or section nine [\\u00a7\\u00a7 23-2-5 or 23-2-9] of this article, shall be liable to their employees (within the meaning of this article) for all damages suffered by reason of personal injuries sustained in the course of employment caused by wrongful act, neglect or default of the employer or any of the employer's officers, agents or employees while acting within the scope of their employment and in the course of their employment and also to the personal representatives of such employees where death results from such personal injuries, and in any action by any such employee or personal representative thereof, such defendant shall not avail himself of the following common-law defenses: The defense of the fellow-servant rule; the defense of the assumption of risk; or the defense of contributory negligence; .\"}"
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+"{\"id\": \"8579274\", \"name\": \"State Of West Virginia v. Eldred Gene Goff\", \"name_abbreviation\": \"State v. Goff\", \"decision_date\": \"1980-12-02\", \"docket_number\": \"No. 14151\", \"first_page\": \"47\", \"last_page\": \"56\", \"citations\": \"166 W. Va. 47\", \"volume\": \"166\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T02:44:27.707551+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State Of West Virginia v. Eldred Gene Goff\", \"head_matter\": \"State Of West Virginia v. Eldred Gene Goff\\n(No. 14151)\\nDecided December 2, 1980.\\nDavid M. Finnerin for plaintiff in error.\\nChauncey H. Browning, Attorney General, Gregory W. Bailey and Homer A. Speaker, Assistant Attorneys General, for defendant in error.\", \"word_count\": \"3506\", \"char_count\": \"20377\", \"text\": \"Miller, Justice:\\nIn this appeal from a conviction of breaking and entering, the defendant Eldred G. Goff assigns several grounds of error. The first relates to the seizure of the title to a 1969 Ford automobile which was found in the glove compartment of his pick-up truck. The second and third errors relate to the State's instructions on intent and burden of proof.\\nLate in the evening of December 22, 1976, a police officer noticed a 1969 Ford automobile being driven across a used car lot in Parkersburg, West Virginia. Since the lot was closed and the car was being driven without lights, the officer stopped the car. When the driver of the car gave false responses to the officer's questions, he was arrested. His name was William Vandal.\\nThe officer then observed broken glass in front of the car lot office and a pick-up truck parked on the lot in which the defendant Goff was seated. By this time a second police officer arrived at the scene and both proceeded to investigate the broken glass and Goffs presence in the pick-up truck. They arrested Goff and transported him along with Vandal to jail.\\nAn hour or so later, the police in conducting a further investigation of the breaking and entering searched the defendant's truck without a warrant, while it was still parked on the used car lot. In the course of what they termed an inventory search, they opened the glove compartment and found a title to a 1969 Ford automobile. This title was introduced into evidence over the defendant's objection.\\nI.\\nWe have not had occasion to consider the parameters of an inventory search of a vehicle. The United States Supreme Court in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), recognized that under certain circumstances an inventory search could be made of a vehicle without a warrant. The predicate for such a search does not arise because the police suspect the vehicle contains contraband or evidence of a crime. Rather, it is based on several practical considerations which Opperman identified: (1) the protection of the owner's property while it remains in police custody; (2) the protection of the police against claims or disputes over lost or stolen property; and (3) the protection of the police from potential danger. (428 U.S. at 369, 96 S.Ct. at 3097, 49 L.Ed.2d at 1005.)\\nWe do not view Opperman as extending a blanket authorization to make an inventory search of a vehicle anytime its owner has been arrested and separated from his vehicle. Opperman's facts which were stressed by the Court in its concluding language show that (1) there was an initial lawful impoundment of the vehicle; (2) the driver was not present at the time of the impoundment to make other arrangements for the safekeeping of his belongings; (3) the inventory itself was prompted by a number of valuables in plain view inside the car; and (4) there was no suggestion that the inventory search was a pretext for conducting an investigative search.\\nWhile it may be argued that these conditions are not an integral part of the Opperman holding, we consider them to be. Even if they are not required by the Fourth Amendment, they comport with our view of the prerequisites of an inventory search under Article III, Section 6 of the West Virginia Constitution. In a number of jurisdic tions since Opperman, courts have had difficulty in determining whether the foregoing conditions are predicates for a valid inventory search and have either concluded that they are or resolved the issue by setting standards under their own constitutional provisions as permitted by Oregon v. Haas, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). See e.g. Altman v. State, 335 So.2d 626 (Fla. App. 1976); Wagner v. Commonwealth, 581 S.W.2d 352 (Ky. 1979); State v. Rome, 354 So.2d 504 (La. 1978); State v. Goodrich, 256 N.W.2d 506 (Minn. 1977); State v. Sawyer, 174 Mont. 512, 571 P.2d 1131 (1977); State v. Slockbower, 79 N.J. 1, 397 A.2d 1050 (1979); Drinkard v. State, 584 S.W.2d 650 (Tenn. 1979).\\nIn the present case, the record is unclear as to whether the State attempted to show any lawful impoundment of the truck. After the driver was arrested and removed to the police station, his truck was left parked on the used car lot. It appears that the inventory search was made an hour or two later while the truck was still parked on the used car lot. There is no evidence in the record as to whether the truck was ever later removed from the used car lot and taken into custody by the police.\\nIt seems clear from Opperman and cases that proceeded and followed it, that the right to an inventory search begins at the point where the police have a lawful right to impound the vehicle. Brown v. Superior Court, 119 Ariz. 205, 580 P.2d 343 (1978); State v. Boster, 217 Kan. 618, 539 P.2d 294 (1975); Wagner v. Commonwealth, 581 S.W.2d 352 (Ky. 1979); State v. McDaniel, 156 N.J. Super 347, 383 A.2d 1174 (1978); State v. Thirdgill, 46 Or. App. 595, 613 P.2d 44 (1980); Annot. 48 A.L.R.3d 537, 551 (1973). This initial step must be taken otherwise there is no rationale for the inventory search since it is based on protection of the owner's property, as well as the police against claims that property has been lost or stolen from the vehicle, while it is in police custody. Most courts that have considered this point have held that if the car is never taken into police custody then there is no basis for an inventory search. State v. Creel, 142 Ga. App. 158, 235 S.E.2d 628 (1977); State v. LaRue, 368 So.2d 1048 (La. 1979); Manalansan v. State, 45 Md. App. 667, 415 A.2d 308 (1980); State v. Gluck, 83 Wash.2d 424, 518 P.2d 703 (1974).\\nEven if we were to assume that there had been an actual lawful impoundment of the truck, the inventory search would not be proper in this case because there was no showing that the police saw any items of personal property in the interior of the vehicle, which would warrant the initiation of an inventory search. Although there is some divergence of opinion in this area, we believe that the more reasoned view requires a sighting of some personal property within the motor vehicle before an inventory search can be initiated. United States v. Mitchell, 458 F.2d 960 (9th Cir. 1972); United States v. Fuller, 277 F. Supp. 97 (D. D.C. 1967), conviction aff'd, 433 F.2d 533 (1970); Mozzetti v. Superior Court, 4 Cal.3d 699, 484 P.2d 84, 94 Cal. Rptr. 412 (1971); People v. Counterman, 192 Colo. 152, 556 P.2d 481 (1976); State v. Boster, 217 Kan. 618, 539 P.2d 294 (1975); State v. Achter, 512 S.W.2d 894 (Mo. App. 1974); State v. All, 17 N.C. App. 284, 193 S.E.2d 770 (1973), cert. denied, 414 U.S. 866, 94 S.Ct. 51, 38 L.Ed.2d 85 (1973); State v. McDougal, 68 Wis.2d 399, 228 N.W.2d 671 (1975).\\nThe basis for this rule is that unless some personal property is seen in plain view in the vehicle there is little, if any, basis for an inventory search. The purpose for a routine police inventory search is to secure personal property from being stolen or lost while the car is in custody but without any visible personal property there is a diminished likelihood that the car will be broken into. On the other hand, it must be remembered that once the vehicle has been impounded the police have the right to secure it by rolling up the windows and locking the doors. Any personal property seen in the course of this action can lead to a fuller inventory search. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).\\nWe conclude under the foregoing law that the State failed to prove the prerequisites for a valid inventory search. There was no proof that the vehicle was in fact ever impounded nor was there any demonstration that there were articles of personal property in plain view inside the truck. Therefore, the 1969 Ford title should not have been admitted as evidence.\\nII.\\nThe next error raised addresses a jury instruction that utilized the following language: \\\"The law does not require, however, proof amounting to an absolute certainty nor proof beyond the possibility of mistake.\\\" In State v. Byers, 159 W. Va. 596, 224 S.E.2d 726 (1976), we held the State's reasonable doubt instruction to be erroneous because it permitted the jury to impose their own personal standard instead of a common legal standard as to what constitutes a reasonable doubt. The instruction in Byers contained language similar to the portion above quoted. In Byers, we declined to hold the \\\"proof amounting to absolute certainty nor proof beyond the possibility of mistake\\\" erroneous standing alone.\\nIn State v. Starr, 158 W. Va. 905, 216 S.E.2d 242 (1975), we stated that instructions which vary the reasonable doubt standard or attempt to explain it \\\"are strongly discouraged, because they certainly confuse the jury as to the meaning of reasonable doubt and may by themselves be prejudicial to the defendant for the obvious reason that the jury is invited to convict on a lesser standard of proof.\\\" A similar admonition can be found in State v. Powers, 91 W. Va. 737, 113 S.E. 912 (1922).\\nWe, as well as the United States Supreme Court, have recognized the fundamental right to have a presumption of innocence and burden of proof instruction in a criminal case. Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468, (1978); cf. Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481 (1895); State v. Cokeley, 159 W. Va. 664, 226 S.E.2d 40 (1976). Because of the crucial significance of such instructions, most appellate courts have cautioned against altering the form of such instruction. United States v. Bridges, 499 F.2d 179 (7th Cir. 1974), cert. denied, 419 U.S. 1010, 95 S.Ct. 330, 42 L.Ed.2d 284; Scurry v. United States, 347 F.2d 468 (D.C. Cir. 1965); State v. Boyken, 217 N.W.2d 218 (Iowa 1974); Commonwealth v. Ferreira, 373 Mass. 116, 364 N.E.2d 1264 (1977); State v. Flippin, 280 N.C. 682, 186 S.E.2d 917 (1972); Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974). Since this case must be retried, we offer a standard instruction on the presumption of innocence and burden of proof.\\nIn the present case, we hold that the quoted language standing alone will not constitute reversible error but when coupled with other language which is at substantial variance with the standard instruction on the presumption of innocence and burden of proof, such deviant instruction may constitute reversible error.\\nIII.\\nThe final ground of error centers on a part of the charge to the jury which advised the jury \\\"that a person is presumed to intend that which they do.\\\" The United States Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), condemned a similar instruction as constituting an impermissive burden shifting presumption relating to intent under its prior decision of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed. 2d 508 (1975).\\nWe have followed the mandate of Sandstrom in State v. O'Connell, 163 W. Va. 366, 256 S.E.2d 429 (1979), where we held that an instruction which was virtually identical to the one in this case violated the Sandstrom principle and stated this Syllabus Point:\\n\\\"In a criminal prosecution, it is constitutional error to give an instruction which supplies by presumption any material element of the crime charged.\\\"\\nThe State, in its brief, acknowledges that the instruction is bad under Sandstrom and O'Connell because it creates a presumption of criminal intent which the defendant must then rebut. This is impermissible since the element of intent must be proved by the State beyond a reasonable doubt.\\nFor the foregoing reasons, the judgment of the Circuit Court is reversed and the case is remanded for a new trial.\\nReversed and Remanded.\\nThe court in Opperman put to rest the question of whether a police administrative inventory was in fact a search falling within the Fourth Amendment prohibition against unreasonable searches finding that routine police inventory searches were not unreasonable. Compare People v. Sullivan, 29 N. Y.2d 69, 272 N.E.2d 464, 323 N.Y.S.2d 945 (1971) with Mozzetti v. Superior Court, 4 Cal.3d 699, 484 P.2d 84, 94 Cal. Rptr. 412 (1971).\\nThus, an inventory search differs from the \\\"automobile exception\\\" or Carroll doctrine, where probable cause exists to believe the vehicle is carrying contraband or evidence of the commission of a crime. See State v. Moore, 165 W. Va. 837, 272 S.E.2d 804 (1980).\\nIn Opperman the court specifically stated:\\n\\\"The inventory was conducted only after the car had been impounded for multiple parking violations. The owner, having left his car illegally parked for an extended period, and thus subject to impoundment, was not present to make other arrangements for the safekeeping of his belongings. The inventory itself was prompted by the presence in plain view of a number of valuables inside the car. As in Cady, there is no suggestion whatever that this standard procedure, essentially like that followed throughout the country, was a pretext concealing an investigatory police motive.\\\" (428 U.S. at 375-76, 49 L.Ed.2d at 1009, 96 S.Ct. at 3100.)\\nCommentators are not in agreement either as to the validity of the theoretical underpinnings of the inventory search or the permissible scope of an inventory search. Moylan, The Inventory Search of an Automobile: A Willing Suspension of Disbelief, 5 U. of Bal. L. Rev. 203 (1976); Anderson & Clark, Inventory Searches: A Reappraisal, 30 JAG J 181 (1978); Note, The Inventory Search: The Supreme Court Spins A More Intricate Web, 22 So. Dakota L. Rev. 142 (1977); Note, Inventory Searches of Motor Vehicles: The Effect of South Dakota v. Opperman, 6 Capital U. L. Rev. 315 (1976).\\nThe pertinent portion of the record regarding the inventory search was:\\n\\\"Q Prior to the time you searched the motor vehicle, what if anything had happened to the defendant, Mr. Goff?\\n\\\"A He was transported to the Wood County Correctional Center.\\n\\\"Q What was the purpose in searching the truck driven by Mr. Goff?\\n\\\"A I conducted an inventory search of the vehicle which is departmental policy.\\n'Q When you say inventory search, what do you mean by that?\\n\\\"A Well, it is not actually a search. It is a check of all items in the vehicle. It is done for safekeeping of the person's property who has been arrested.\\n\\\"Q Were there any other reasons, to your knowledge, why it is done?\\n\\\"A No, that is the primary purpose of it.\\n\\\"Q What did this inventory reveal, if anything?\\n\\\"THE COURT: Mr. Richardson, I think I would like to know where the truck was at the time this was done.\\n\\\"By Mr. Richardson:\\n\\\"Q Where was the truck at the time this inventory was done?\\n\\\"A It was located in the parking lot at Fort Neal Motors.\\n\\\"Q Had it been removed from its original location, that is the location you first observed it?\\n\\\"A No, sir.\\\"\\nThe issue of whether the police had a lawful right to impound the vehicle has not been raised in this case. In State v. Singleton, 9 Wash. App. 327. 511 P.2d 1396, 1399-1400 (1973), the court after surveying a number of other cases made this summary:\\n\\\"Reasonable cause for impoundment may, for example, include the necessity for removing (1) an unattended-to car illegally parked or otherwise illegally obstructing traffic; (2) an unattended-to car from the scene of an accident when the driver is physically or mentally incapable of deciding upon steps to be taken to deal with his property, as in the case of the intoxicated, mentally incapacitated or seriously injured driver; (3) a car that has been stolen or used in the commission of a crime when its retention as evidence is necessary; (4) an abandoned car; (5) a car so mechanically defective as to be a menace to others using the public highway; (6) a car impoundable pursuant to ordinance .or statute which provides therefor as in the case of forfeiture.\\\"\\nWe have recognized that impoundment of a vehicle was permissible where its occupants were arrested for intoxication in a public place and its owner could not be located. State v. Craft, 165 W. Va. 741, 272 S.E.2d 46 (1980). Most courts hold that the mere fact that the driver is arrested does not give automatic grounds for impoundment of the vehicle if there exist readily available arrangements for the vehicle's disposition. Dunkum v. State, 138 Ga. App. 321, 226 S.E.2d 133 (1976); People v. Von Hatten, 52 Ill. App.3d 338, 10 Ill. Dec. 168, 367 N.E.2d 556 (1977); City of Danville v. Dawson, 528 S.W.2d 687 (Ky. 1975); State v. Stockbower, 79 N.J. 1, 397 A.2d 1050 (1979); State v. Goodrich, 256 N.W.2d 506 (Minn. 1977); State v. Singleton, 9 Wash. App. 327, 511 P.2d 1396 (1973).\\nWhile there is a divergence of authority as to whether an inventory search authorizes exploration of sealed containers or into a locked trunk or other secured portions of the vehicle, we believe the better view is that it does not. United States v. Lawson, 487 F.2d 468 (8th Cir. 1973); State v. Daniel, 589 P.2d 408 (Alaska 1979); People v. Minjares, 24 Cal.3d 410, 591 P.2d 514, 153 Cal. Rptr. 224 (1979), cert. denied, 444 U.S. 887, 100 S.Ct. 181, 62 L.Ed.2d 117; State v. Gwinn, 301 A.2d 291 (Del. 1972); Jones v. State, 345 So.2d 809 (Fla. App. 1977); People v. Grana, 185 Colo. 126, 527 P.2d 543 (1974); State v. Parker, 153 N.J. Super. 481, 380 A.2d 291 (1977); State v. Downes, 285 Or. 369, 591 P.2d 1352 (1979); State v. McDougal, 68 Wis.2d 399, 228 N.W.2d 671 (1975).\\nThe instruction in Byers was:\\n\\\"'The Court instructs the jury that the accused is presumed to be innocent and that such presumption goes with him through all stages of the trial until the State, upon which the burden of proof rests, has shown beyond a reasonable doubt that the defendant is guilty. A doubt engendered by sympathy or by a dislike to accept the responsibility of convicting the defendant is not a reasonable doubt. The law does not require proof amounting to absolute certainty, nor proof beyond all possibility of mistake. If, after having carefully and impartially heard and weighed all the evidence, you reach the conclusion that the defendant is guilty with such degree of certainty that you would act upon the faith of it in your own most important and critical affairs, then the evidence is sufficient to warrant a verdict of guilty.' (emphasis added)\\\" 159 W. Va. at 607, 224 S.E.2d at 733-34 (Emphasis in original).\\nThe law presumes a defendant to be innocent of crime. Thus a defendant, although accused, begins the trial with a \\\"clean slate\\\" \\u2014 with no evidence against him. And the law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused. So the presumption of innocence alone is sufficient to acquit a defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all the evidence in the case.\\nIt is not required that the government prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense \\u2014 the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it.\\nThe jury will remember that a defendant is never to be convicted on mere suspicion or conjecture.\\nThe 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.\\nSo if the jury, after careful and impartial consideration of all the evidence in the case, has a reasonable doubt that a defendant is guilty of the charge, it must acquit. If the jury views the evidence in the case as reasonably permitting either of two conclusions \\u2014 \\u2022 one of innocence, the other of guilt \\u2014 the jury should of course adopt the conclusion of innocence.\\nThis instruction is almost identical to the widely used federal instruction, 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions \\u00a711.14.\"}"
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+"{\"id\": \"8579310\", \"name\": \"Paul J. PITROLO, et al., etc. v. COMMUNITY BANK & TRUST, N.A., et al.\", \"name_abbreviation\": \"Pitrolo v. Community Bank & Trust\", \"decision_date\": \"1982-12-14\", \"docket_number\": \"No. 15337\", \"first_page\": \"317\", \"last_page\": \"320\", \"citations\": \"171 W. Va. 317\", \"volume\": \"171\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T02:29:41.468035+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Paul J. PITROLO, et al., etc. v. COMMUNITY BANK & TRUST, N.A., et al.\", \"head_matter\": \"298 S.E.2d 853\\nPaul J. PITROLO, et al., etc. v. COMMUNITY BANK & TRUST, N.A., et al.\\nNo. 15337.\\nSupreme Court of Appeals of West Virginia.\\nDec. 14, 1982.\\nRobert M. Amos, Fairmont, for appellant.\\nFurbee, Amos, Webb & Critchfield, Stephen R. Brooks and Hays Webb, Fairmont, for appellees.\", \"word_count\": \"2022\", \"char_count\": \"12178\", \"text\": \"PER CURIAM:\\nThis is an appeal by Paul and Janice Pitrolo, husband and wife, from a final order of the Circuit Court of Marion County entered on September 15, 1981. That order denied the appellants' petition for a preliminary injunction to prohibit the appel-lees from selling certain real estate owned by the appellants under a \\\"Notice of Trustee's Sale.\\\" For the reasons set forth below, we affirm the circuit court.\\nOn November 21,1979, a business loan in the amount of $400,000.00 was made by Community Bank and Trust, N.A. to Pitro-lo Pontiac Cadillac Company. The promissory note was executed by Paul Pitrolo, as President of Pitrolo Pontiac Cadillac Company. On the same date, Mr. and Mrs. Pitrolo executed a \\\"Guarantee of Payment\\\" of the loan and a deed of trust to secure the obligation created by the promissory note. The deed of trust gave as security six acres of land owned by Mr. and Mrs. Pitrolo in Marion County. The purpose of the loan was originally for working capital; however, the use of the money was later amended so that a portion of it could be used to pay an existing debt owed by Pitrolo Pontiac Cadillac Company to Community Bank.\\nPitrolo Pontiac Cadillac Company subsequently defaulted in repayment of the loan. On July 22, 1981, Community Bank and Trust filed a civil action in the amount of $389,401.30 plus interest against the company and Mr. and Mrs. Pitrolo as guarantors of the obligation. The company and the Pitrolos answered denying that they owed the alleged amount to Community Bank and Trust and also filed various counterclaims against the Bank. Pursuant to the default, appellee Alfred Lemley was instructed by the Bank to foreclose under the deed of trust. The date of the foreclosure sale was set for September 14,1981 and the required notice was published. Before the sale could be held, the appellants filed a petition for an injunction in the Circuit Court of Marion County to prohibit the sale. The three grounds alleged in support of the petition were set forth in the circuit court's memorandum of opinion:\\n\\\"(1) No note or bond establishing a debt owed by plaintiffs to defendants was requested or executed, hence the Deed of Trust . is defeated as collateral.\\n\\\"(2) The rate of interest charged and shown on the Deed of Trust is usurious.\\n\\\"(3) The defendant bank, in instituting a civil action . against the plaintiffs herein, has made an election of remedies, and is thus barred from proceeding by sale under the Deed of Trust.\\\"\\nAfter hearing limited evidence the court made findings of fact and conclusions of law. Judgment was entered denying the appellants' petition for injunction. It is from this final order that appeal is now taken.\\nThe appellants' principal assertions on appeal appear to be that since the promissory note in question was made by Pitrolo Pontiac Cadillac Company, they cannot be personally liable for the debt and that their deed of trust was executed by them without consideration, the loan proceeds having gone to the corporation.\\nThe appellants' assertion that they are not liable on the note since it was primarily a corporate note misconceives our commercial law. The note is contained in the record and appellants' status is plainly that of accommodation guarantors. In First National Bank of Ceredo v. Linn, 168 W.Va. 76, 282 S.E.2d 52 (1981), we dealt with two individuals who had indorsed a note which their corporation had guaranteed. Because of the ambiguous character of their indorsement we concluded they were accommodation indorsers. Here, the quoted language of the guarantee of payment as appended to the note clearly demonstrates that they were sign ing as guarantors. Linn, supra, S.E.2d at 55-56 that: We pointed out in 168 W.Va. at 82-83, 282\\n\\\"W.Va.Code, 46-3-415, sets out the contract of an accommodation party. The official comment under this section makes it clear that in order to determine the exact nature of the liability of an accommodation party, it is first necessary to determine the capacity in which he signed the instrument since there can be accommodation makers, guarantors, indorsers, etc:\\n'His obligation is therefore determined by the capacity in which he signs. An accommodation maker or acceptor is bound on the instrument without any resort to his principal, while an accommodation indorser may be liable only after presentment, notice of dishonor and protest.' \\\"\\nThe fact that a party signs an instrument but does not receive any direct renumeration or consideration for signing does not relieve him of liability; it merely establishes him as an accommodation party under W.Va.Code, 46-3-415. His precise obligations and rights are then determined by the further inquiry discussed in the above quotation from Linn, supra, by the capacity^ in which he signs. This principle was summarized in syllabus point 3 of Linn:\\n'In order to determine the exact nature of the liability of an accommodation party, it is first necessary to determine the capacity in which he signed the instrument.\\\"\\nFrom the foregoing it is clear that appellants are liable as accommodation guarantors, see W.Va.Code, 46-3-416, and the bank could properly proceed against them as well as the corporation.\\nThe appellants' assertion that they are not liable because there was no consideration for the execution of their deed of trust is meritless. The well-established rule is that the liability of an accommodation maker is supported by the consideration which flows from the creditor to the principal debtor and the fact that no consideration flowed directly to the accommodation indorser [guarantor] is irrelevant. See, e.g., Gavin v. Hinrichs, 375 So.2d 1063 (Ala.1979); Lewis v. Citizens & Southern National Bank, 139 Ga.App. 855, 229 S.E.2d 765 (1976); Burke v. Burke, 89 Ill. App.3d 826, 45 Ill.Dec. 71, 412 N.E.2d 204 (1980); Guaranty Bank & Trust Co. v. Carter, La.App., 394 So.2d 701 (1981); Hybertsen v. Reimann, 262 Or. 116, 496 P.2d 917 (1972).\\nIn his treatise on the Uniform Commercial Code, Anderson interprets \\u00a7 3-415 as follows:\\n\\\"The fact that an accommodation party did not receive any consideration is immaterial. The fact that the maker of the note and not the accommodation maker received the consideration is not a defense to the accommodator.\\n\\\"An accommodation party cannot claim that there is no consideration for his accommodation as the value received by the principal debtor, the person accommodated, is the consideration for which the accommodation party lends his credit.\\\" 2 Anderson, Uniform Commercial Code \\u00a7 3-415:8, p. 1002 (2d ed. 1971).\\nIn Carlisle v. Commodore Corp., 15 N.C.App. 650, 190 S.E.2d 703 (1972), the North Carolina court held that a deed of trust executed contemporaneously with a contract to secure performance of the contract obligation, need not be supported by additional consideration. The facts of Car-lisle are very similar to those in the case before us. Mr. Carlisle was the principal stockholder and President of Diversified Mobile Homes, Inc. which executed a $250,-000.00 promissory note to Commodore Corporation. At the time of execution, Mr. and Mrs. Carlisle signed a guaranty. The Carlisles subsequently (four months later) executed a deed of trust for further guarantee of the loan to Diversified and when Diversified declared bankruptcy, foreclosure proceedings were begun by the trustee. On appeal, the Carlisles sought to permanently prohibit such foreclosure on the grounds that, inter alia, the deed of trust was executed without consideration.\\nThe court dismissed this argument and held that \\\"a pre-existing contingent obligation as guarantor on a note is sufficient consideration to support the execution of a mortgage or deed of trust to secure performance of the contingent obligation.\\\" 15 N.C.App. at 654, 190 S.E.2d at 706.\\nThis Court used much the same reasoning in the case of Jolliffe v. First National Bank of Grafton, 126 W.Va. 273, 27 S.E.2d 710 (1943). There George G. Jolliffe, son of George L. Jolliffe, executed a note and deed of trust securing the same on his own property as security for a loan made to his father by the First National Bank of Grafton and the Reconstruction Finance Corporation. The father had already given certain collateral for the loan. His son's note and deed of trust were merely additional security. The note and deed of trust from George G. Jolliffe were made to one O.E. Wyckoff who the Court determined was acting for the Bank simply as a formal intermediary payee. When the father subsequently declared bankruptcy and was unable to repay the loan the Bank forwarded the son's note and deed of trust to the Reconstruction Finance Corporation for enforcement of the same.\\nOn appeal the son and his wife argued that there was no valuable consideration moving to them from O.E. Wyckoff, the payee of the note and agent of the Bank, or from the Bank itself. In syllabus point 1 the Court disposed of this argument:\\n\\\"Where it is understood between the maker and the payee of a negotiable note to be secured by deed of trust that the payee is acting as agent on behalf of a bank and that credit is being extended by the bank at the request of the maker to a third person with the understanding that the note will be transferred by the payee to the bank and used as collateral to secure the loan, it is not necessary that a consideration move from the payee of the note to the maker, the credit advanced by the bank to the third person at the request of the maker being sufficient to support the note and deed of trust.\\\"\\nSyllabus point 2 of Jolliffe is also relevant:\\n\\\"The extension of credit to a third person is sufficient consideration to support the enforceability of a promissory note, the understood purpose of which is to furnish collateral security for the credit so extended.\\\"\\nWe adopt this reasoning and applying it to the case before us, we conclude that there was adequate consideration for the execution of the Pitrolos' deed of trust and that they are liable as guarantors of the note executed by Pitrolo Pontiac Cadillac Company.\\nThe appellants assign numerous other errors in their brief, but having reviewed the same, we find them to be without merit. Accordingly, the judgment of the Circuit Court of Marion County denying the appellants' petition for an injunction is affirmed.\\nAffirmed.\\nII\\n. The relevant portion of the \\\"Guarantee of Payment\\\" as appended to the promissory note is:\\n\\\"GUARANTEE OF PAYMENT\\n\\\"I/We hereby guarantee to\\n\\\"COMMUNITY BANK AND TRUST, N.A.\\n\\\"FAIRMONT, WEST VIRGINIA 26554\\n\\\"the prompt payment, when due, of each and every claim and demand now existing or hereafter arising owing to said\\n\\\"COMMUNITY BANK AND TRUST, N.A. against Pitrolo Pontiac Cadillac Company\\n\\\"in consideration of the extension of credit by said bank at my/our request to said debtor(s).\\n\\\"This is an absolute, unconditional and continuing guarantee of payment and shall remain in full force and effect until revoked by written notice received by said bank.\\\"\\nW.Va.Code, 46-3-415, provides:\\n\\\"(1) An accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.\\n\\\"(2) When the instrument has been taken for value before it is due the accommodation party is liable in the capacity in which he has signed even though the taker knows of the accommodation.\\n\\\"(3) As against a holder in due course and without notice of the accommodation oral proof of the accommodation is not admissible to give the accommodation party the benefit of discharges dependent on his character as such. In other cases the accommodation character may be shown by oral proof.\\n\\\"(4) An indorsement which shows that it is not in the chain of title is notice of its accommodation character.\\n\\\"(5) An accommodation party is not liable to the party accommodated, and if he pays the instrument has a right of recourse on the instrument against such party.\\\"\"}"
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+"{\"id\": \"8580508\", \"name\": \"Wheeling Dollar Savings & Trust Co., Trustee, etc. v. Karen Stifel Hanes and Donna Stifel Stengel\", \"name_abbreviation\": \"Wheeling Dollar Savings & Trust Co. v. Hanes\", \"decision_date\": \"1977-06-28\", \"docket_number\": \"No. 13732\", \"first_page\": \"711\", \"last_page\": \"719\", \"citations\": \"160 W. Va. 711\", \"volume\": \"160\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T01:13:25.529462+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Wheeling Dollar Savings & Trust Co., Trustee, etc. v. Karen Stifel Hanes and Donna Stifel Stengel\", \"head_matter\": \"Wheeling Dollar Savings & Trust Co., Trustee, etc. v. Karen Stifel Hanes and Donna Stifel Stengel\\n(No. 13732)\\nDecided June 28, 1977.\\nRehearing Denied October 10, 1977.\\nBachmann, Hess, Bachman & Garden, Gilbert S. Bach-man, for Karen Stifel Hanes and Donna Stifel Stengel.\\nGalbraith, Seibert & Kasserman, James F. Seibert, for Arthur C. Stifel, III.\", \"word_count\": \"2926\", \"char_count\": \"17289\", \"text\": \"Neely, Justice:\\nThe Court granted this appeal for the purpose of reviewing the law annunciated in Syllabus Point 2 of Security National Bank & Trust Co. v. Willim, 151 W. Va. 429, 153 S.E.2d 114 (1967) concerning the treatment of adopted children under testamentary and inter vivos trusts executed before 1959 when the Legislature enacted W. Va. Code, 48-4-5 [1959]. Syllabus Point 2 of the Willim case says:\\n\\\"In a case involving the construction of a will made in 1900 by a testatrix who died in 1908, and particularly involving construction of language by which certain property was devised in trust for the benefit of a granddaughter of the testatrix for life and, upon her death, if she should leave a child or children surviving her, to such child or children, and the further provision that if the granddaughter should die without issue surviving her, the property should pass to other specified persons, a child adopted by the granddaughter, the life tenant, after the death of the testatrix cannot take such property under the will as a child or as issue of the granddaughter, the life tenant.\\\"\\nIn light of the dramatic changes which have been made in the organization of society in the last 20 years and the pervasive tendency of modern adults to adopt minor children who then become both emotionally and financially indistinguishable from their own children, today we overrule Syllabus Point 2 of Security National Bank & Trust Co. v. Willim, supra, as well as Syllabus Point 1 of Wheeling Dollar Savings & Trust Co. v. Stewart, 128 W. Va. 703, 37 S.E.2d 563 (1946). We hold today that any testamentary or inter vivos trust governed by the laws of the State of West Virginia, regardless of the date of its execution, including by way of example and not by way of limitation, all trusts executed before 1959, shall be construed under the provisions of W. Va. Code, 48-4-5 (1969) and adopted children shall take under any provision which uses the words \\\"child\\\" or \\\"children\\\" or any general words which are loosely, if not technically, synonomous with the words \\\"child\\\" or \\\"children,\\\" including again by way of example and not by way of limitation, such words as \\\"natural children,\\\" \\\"descendants,\\\" \\\"heirs,\\\" \\\"issue,\\\" or any other similar words. Further, we hold that adopted children under the provisions of such inter vivos or testamentary trusts may only be excluded from the operation of such trusts if the trustor or testator has specifically excluded them by unambiguous explicit language.\\nI\\nIn the case before us Karen Stifel Hanes and Donna Stifel Stengel appeal a judgment of the Circuit Court of Ohio County entered on the pleadings in a declaratory judgment action brought by the Wheeling Dollar Savings & Trust Company for aid in construing an inter vivos trust agreement under which Wheeling Dollar is trustee. The question below was whether adopted children are \\\"children\\\" within the meaning of the trust instrument and entitled to share in the distribution of the trust estate upon the death of their adoptive father, the trust's life beneficiary. The circuit court excluded the adopted children from sharing in the distribution of the trust estate.\\nOn March 31, 1938, Arthur C. Stifel executed an irrevocable inter vivos trust agreement designating his son, Arthur C. Stifel, Jr., as income beneficiary for life. The trust instrument provided for distributions of income, and ultimately principal, to designated beneficiaries upon the death of Arthur C. Stifel, Jr. Persons entitled to such trust distributions included the life beneficiary's surviving \\\"widow who was living with him at the time of his death\\\" and the life beneficiary's \\\"children and/or descendants of the deceased child or children.\\\"\\nArthur C. Stifel, Jr. died November 29, 1974, survived by his second wife, Niki C. Stifel, a son by a former marriage, Arthur C. Stifel, III, and by two adopted daughters, Karen Stifel Hanes and Donna Stifel Stengel. There is some question concerning whether Niki C. Stifel was living with Arthur C. Stifel, Jr. at the time of his death, so as to qualify for a share of the trust distribution. That question was not resolved below and is not before us now. We are concerned solely with the rights of the adopted daughters who were excluded from the trust distribution as the result of the circuit court's granting the motion of appellee, Arthur C. Stifel, III, for judgment on the pleadings. As matters stood below at the time of this appeal, Arthur C. Stifel, III was the only child entitled to a trust distribution.\\nThe provisions of the trust relevant to our consideration of this matter are as follows:\\nSECOND: The net income of the Trust shall be paid not less frequently than quarter-annually in as nearly equal instalments [sic] as practicable to Arthur C. Stifel, Jr., a son of the Trustor, during his lifetime, and thereafter:\\n(1) If said Arthur C. Stifel, Jr. should leave surviving him a widow who was living with him as his wife at his death, and a child or children and/or descendants of a deceased child or children, then one-half (1/2) of said net income shall be paid to such widow and the other half thereof, or, if he should leave no such widow, the whole thereof, shall be paid to such child or distributed among such children and/or descendants of children, in equal shares per stirpes.\\n(2) If said Arthur C. Stifel, Jr. should leave surviving him such a widow but no child nor descendant of any child, then the entire net income shall be paid to such widow.\\n(3) If said Arthur C. Stifel, Jr. should die leaving no widow nor issue of any degree, or upon the death of any such widow and such children and descendants of children prior to the termination of this Trust, then such income shall be paid to or distributed among William Flaccus Stifel, a son of the Trustor, and/or Joan A. Stifel, a daughter of the Trustor, and/or their children and descendants of children in equal shares per stirpes.\\n(4) During any period in which there is no person within any of the foregoing classes entitled to receive the income, it shall be accumulated.\\nTHIRD: Upon the termination of any estate hereunder, accrued income shall belong to the next estate.\\nII\\nThere is extensive conflicting authority throughout the United States on the issue now before us. Our own reading of the cases, however, indicates that the clear direction of the law is in favor of parity for adopted children in all matters, including the right to take under family trusts executed long before adoption became a pervasive phenomenon. Although the West Virginia Legislature was silent with regard to this problem when it enacted W. Va. Code, 48-4-5 [1969], it is the clear policy of the Legislature of this State that adopted children shall be on a par with natural children. W. Va. Code, 48-4-5 [1969] is as follows:\\n\\\"Upon the entry of such order of adoption, the natural parent or parents, any parent or parents by any previous legal adoption, and the lineal or collateral kindred of any such parent or parents, except any such parent who is the husband or wife of the petitioner for adoption, shall be divested of all legal rights, including the right of inheritance from or through the adopted child under the statutes of descent and distribution of this State, and shall be divested of all obligations in respect to the said adopted child, and the said adopted child shall be free from all legal obligations, including obedience and maintenance, in respect to any such parent or parents. From and after the entry of such order of adoption, the adopted child shall be, to all intents and for all purposes, the legitimate issue of the person or persons so adopting him or her and shall be entitled to all the rights and privileges and subject to all the obligations of a natural child of such adopting parent or parents.\\n\\\"For the purpose of descent and distribution, from and after the entry of such order of adoption, a legally adopted child shall inherit from and through the parent or parents of such child by adoption and from or through the lineal or collateral kindred of such adopting parent or parents in the same manner and to the same extent as though said adopted child were a natural child of such adopting parent or parents, but such child shall not inherit from his or her natural parent or parents nor their lineal or collateral kindred, except that a child legally adopted by a husband or wife of the natural parent shall inherit from the natural parent of such child as well as from the adopting parent. If a legally adopted child shall die intestate, all property, including real and personal, of such adopted child shall pass, according to the statutes of descent and distribution of this State, to those persons who would have taken had the decedent been the natural child of the adopting parent or parents.\\\"\\nWe are not unmindful of W. Va. Code, 41-1-10 (1923) which provides in part:\\n\\\"The validity and effect of wills executed prior to the time this Code becomes effective [January 1, 1931] shall be determined by the laws of this State in force at the time of their execution.\\\"\\nOf course this provision, which influenced the result in the Willim case, would not be applicable to the inter vivos trust under consideration; however, since our rule also applies to testamentary trusts, we must give careful consideration to W. Va. Code, 41-1-10 [1923] and to the principle that a will speaks as of the date of its execution.\\nThe cardinal rule in the construction of testamentary or inter vivos instruments is that a court should give effect to the intent of the trustor or testator. Farmers & Merchants Bank v. Farmers & Merchants Bank, _ W. Va. _, 216 S.E.2d 769 (1975). This has always been the law, both before and after the enactment of W. Va. Code, 48-4-5 [1969]. Accordingly, while we recognize that use of such words as \\\"issue,\\\" \\\"descendants,\\\" and \\\"child\\\" could be interpreted to exclude adopted children, we also recognize that adoption was not as pervasive in the early part of this century as it is today. Therefore, it is fair to assume that the question of adopted children did not stand out in the minds of most testators or trustors until more recently. The language of most trusts or wills is little help here, since the language rarely indicates whether trustors and testators gave serious thought to the question of children adopted by their beneficiaries. Accordingly, the meaning to be assigned to such words as \\\"issue,\\\" \\\"descendants,\\\" and \\\"child\\\" is usually ambiguous and, therefore, subject to construction or interpretation. We find the issue well stated and resolved by Mr. Justice Weintraub of the Supreme Court of New Jersey in the case of In The Matter of The Estate of Coe, 42 N. J. 485, 201 A.2d 571 (1964) where he said:\\n\\\"We cannot believe it probable that strangers to the adoption would differentiate between the natural child and the adopted child of another. Kather we believe it more likely that they accept the relationships established by the parent whether the bond be natural or by adoption and seek to advance those relationships precisely as that parent would. None of us discriminates among children of a relative or friend upon a biological basis, [citations omitted] We ought not impute to others instincts contrary to our own. Nor should be [sic] think we are different from our ancestors of 1877. As we have said, the adoption act of that year did not amend human nature; it yielded to it.\\\"\\nIt appears to the Court that most testators and trus-tors establish trusts for the benefit of those persons they love and for the benefit of those persons yet unknown and yet unborn whom such testators and trus-tors infer that their loved ones will eventually love. While there may be testators and trustors who are so concerned with medieval concepts of \\\"bloodline\\\" and \\\"heirs of the body\\\" that they would truly be upset at the thought that their hard-won assets would one day pass into the hands of persons not of their blood, we cannot formulate general rules of law for the benefit of eccentrics. While a person may still exclude adopted children from the benefits of an inter vivos or testamentary trust in the same way that he may exclude any other person or class of persons from such benefits, the exclusion must be accomplished by explicit language. Such exclusion may not be done by implication or by any general interpretation of words which generations of careless draftsmen have taught are frequently used synonymously with \\\"child\\\" or \\\"children.\\\"\\nAccordingly, in the case before us the judgment of the Circuit Court of Ohio County is reversed and the case is remanded with directions to enter an order consistent with this opinion permitting the appellants, Karen Stifel Hanes and Donna Stifel Stengel, to share as children in the benefits conferred by the trust of Arthur C. Stifel.\\nReversed and remanded.\\nW. Va. Code, 48-4-5 was originally enacted in 1882 as Chapter 132, \\u00a7 4 Acts of the Legislature, Regular Session, 1882, and was amended on numerous occasions, including the recent years of 1925, 1943, 1959, 1967, and 1969. The 1959 version of the statute, which was involved in Security Nat. Bank & Trust v. Willim, 151 W.Va. 429, 153 S.E.2d 114 (1967), stated in pertinent part:\\n\\\"From and after the entry of such decree of adoption, the adopted child shall be, to all intents and for all purposes, the child of the person or persons so adopting him or her and shall be entitled to all the rights and privileges and subject to all the obligations of a natural child of such adopting parent or parents.\\\"\\nThis remains the Legislature's basic statement that adopted children are to be accorded equal treatment in law with that accorded natural children. In 1967 the Legislature emphasized this principle by substituting \\\"legitimate issue\\\" for the word \\\"child\\\" appearing second in the above-quoted portion of the statute. This amendment prevents courts from defeating the purpose of the statute by drawing artificial semantic distinctions between \\\"children\\\" and \\\"issue\\\" or related words. The 1969 amendment made only technical changes, substituting \\\"order\\\" for \\\"decree\\\" throughout the statute.\\nFor convenience in this opinion we refer to W. Va. Code, 48-4-5, [1969] although we recognize that the basic legislative policy with which we are concerned dates from 1959.\\nWheeling Dollar Savings & Trust Co. v. Stewart, 128 W. Va. 703, 37 S.E.2d 563 (1946), Syllabus Point 1, today overruled, provides as follows:\\n\\\"In the absence of an intention to do so, explicitly set forth in a will creating a trust for a named beneficiary, or clearly shown by circumstances surrounding its execution, the terms \\\"descendant\\\", \\\"descendants\\\", \\\"direct descendants\\\", and words equivalent thereto, do not include children adopted by the beneficiary of such trust.\\\"\\nThe complaint below alleged that Arthur C. Stifel, Jr. was survived by another adopted daughter, Sylvia de Cuevas. Sylvia de Cuevas did not appear in the proceedings below, although she was joined as a party defendant. The order of the circuit court held that Sylvia de Cuevas was not an adopted child of Arthur C. Stifel, Jr., and that part of the order is not before us in this appeal. Accordingly we limit our discussion of the rights of adopted children to appellants Karen Stifel Hanes and Donna Stifel Stengel, who, it is admitted, are the adopted children of Arthur C. Stifel, Jr.\\nThere is a trend among courts to give retroactive effect to legislatures' public policy declarations with respect to adopted children, as the following statement, in re, Trust Under Will of Holden, 207 Minn. 211 at 224, 291 N.W. 104 at 110 (1940), indicates:\\n\\\"Adoption statutes providing that an adopted child shall have the status of a natural one are intended to repeal and supersede statutes and rules of law under which the adopted child did not enjoy such status and the rights incident thereto. There simply can be no justification for measuring the rights of an adopted child under a statute conferring on it the status of a natural one by statutes or rules of law which withhold or deny such status.\\\"\\nOur decision today brings us into accord with this trend. See also, Breckinridge v. Skillman's Trustee, 330 S.W.2d 726 (Ky. Ct. App. 1959); Brown v. Trust Company of Georgia, 230 Ga. 341, 196 S.E.2d 872 (1973); and Haskell v. Wilmington Trust Company, 304 A.2d 53 (Del. Sup. Ct. 1973).\\nOrdinarily a will takes effect as of the date of the testator's death, but if the language of the will shows that the testator intended that a testamentary disposition made in the will should be effective at a different date, the intention of testator controls, if no positive rule of law is violated by giving effect to the testator's intent. Guthrie v. First Huntington Nat'l. Bk., 155 W. Va. 496, 184 S.E.2d 628 (1971); Mauzy v. Nelson, 147 W. Va. 764, 131 S.E.2d 389 (1963); and Tharp v. Tharp, 131 W. Va. 529, 48 S.E.2d 793 (1948).\"}"
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+"{\"id\": \"8580810\", \"name\": \"Frank A. Wallington v. Kermit Zinn, et al.\", \"name_abbreviation\": \"Wallington v. Zinn\", \"decision_date\": \"1961-03-07\", \"docket_number\": \"CC 858\", \"first_page\": \"147\", \"last_page\": \"155\", \"citations\": \"146 W. Va. 147\", \"volume\": \"146\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T01:13:19.647568+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Frank A. Wallington v. Kermit Zinn, et al.\", \"head_matter\": \"Frank A. Wallington v. Kermit Zinn, et al.\\n(CC 858)\\nSubmitted January 11, 1961.\\nDecided March 7, 1961.\\nClarence E. Martin, Jr., Carroll W. Casto, G. V. Wehner, for plaintiff.\\nJames T. Dailey, Jr., for defendants.\", \"word_count\": \"2886\", \"char_count\": \"17094\", \"text\": \"GtveN, Judge:\\nPlaintiff, Frank A. Wallington, a duly licensed osteopathic physician and surgeon, instituted this proceed ing in the Circuit Court of Preston County, against Kermit Zinn, Archie Rogers, A. L. Reed, Berlin Wilhelm and Cramer W. Gibson, Trustees of the Preston Memorial Hospital, and The Joint Commission on Accreditation of Hospitals, an Illinois corporation, for the purpose of having adjudicated his rights to use the facilities of the Preston Memorial Hospital, a hospital created and organized pursuant to the provisions of Chapter 43 of the 1951 Acts of the Legislature, and praying for an injunction prohibiting defendants from taking any action which would tend to deny the plaintiff the full use of such facilities. The trial court awarded a temporary injunction against the board of trustees, prohibiting it from denying the use of such facilities to the plaintiff during the period of probation theretofore granted him, which allowed him the right to use such facilities and the right to practice in the hospital during the probationary period, sustained a demurrer to the bill of complaint, and certified its action to this Court. The probationary period granted plaintiff by the trustees having expired before the certification, the questions related thereto are not now involved.\\nAbout November 19, 1959, the board of trustees of the hospital granted plaintiff the privilege to practice in the hospital, and the right to the use of its facilities for a probationary period of six months. The hospital had theretofore been accredited by the defendant, The Joint Commission on Accreditation of Hospitals, which corporation examined, approved and accredited hospitals throughout the United States, and especially in West Virginia. About December 14, 1959, the corporation rescinded its accreditation of the hospital, apparently for the sole reason that the board of trustees had granted the use of the hospital facilities to an osteopathic physician and surgeon, the plaintiff, and refused further accreditation to the hospital unless the right granted plaintiff was rescinded, which the board of trustees did, January 6, 1960. The effective date of such revocation was February 6, 1960.\\nPlaintiff alleges, in effect, that he is a resident and taxpayer of Preston County; that many of his patients are taxpayers and citizens of that county; that many of his patients require medical treatment that can he given only in a hospital; that no other hospital exists in the county, or reasonable vicinity, which is equipped to render such treatment; that he can not render proper care and treatment of his patients in the event the use of the facilities of the hospital is denied him; that the denial of such use would cause him irreparable damages; that his patients are \\\"entitled to a free choice of their physician\\\", without limitation or discrimination; and that such denial \\\"constitutes discrimination in favor of the practice of one school of medicine ' \\\\\\nThe Preston Memorial Hospital was organized pursuant to provisions of Chapter 43 of the 1951 Acts of the Legislature, now included in Article 3, Chapter 7 of Michie's 1955 Code of West Virginia. Section 15 of Article 3 provides that \\\"The administration and management of any county public hospital acquired, equipped, furnished, improved or extended under section fourteen of this article shall be vested in a board of hospital trustees, consisting of not less than five members appointed by the county court Such board of trustees shall provide for the employment and shall fix the compensation and remove at pleasure all professional, technical and other employees, skilled or unskilled, as it may deem necessary for the operation and maintenance of the hospital; and disbursement of funds in such operation and maintenance shall be made only upon order and approval of such board. The board of trustees shall make all rules and regulations governing its meetings and the operation of the hospital. ' ' Section 16 of Article 3 requires that \\\" # the hospital and all appurtenances shall be operated and maintained on a revenue producing and self-sustaining basis\\nIn Shaffer v. Monongalia General Hospital, 135 W. Va. 163, 62 S. E. 2d 795, the hospital involved ex isted by virtue of Chapter 112 of the 1943 Acts of the Legislature, very similar in effect to the statute here involved. In that case we held that the hospital was \\\"a public hospital\\\". Insofar as the question is here material, we think the classification there made is controlling as to the hospital here involved, that is, it must be considered as a public hospital. See Hogan v. Clarksburg Hospital Co., 63 W. Va. 84, 59 S. E. 943.\\nIn Vest v. Cobb, 138 W. Va. 660, 76 S. E. 2d 885, a proceeding wherein plaintiffs sought an injunction prohibiting the defendant, a duly licensed osteopathic physician and surgeon, from administering or prescribing medicines or narcotics for his patients, and from performing surgery, this Court held that defendant was, by virtue of provisions of Code, 30-14-9, as amended, entitled to the same rights to the practice of his profession as were physicians and surgeons of other schools of medicine, and had the right to treat any human ailment or infirmity by any method authorized or used by the so-called regular physicians and surgeons. The holding, however, had no relation to the right of an osteopathic physician and surgeon, or of any medical practitioner, to practice his profession in any hospital, private or public.\\nThe controlling question which we must decided relates to the right or power of the board of trustees of the Preston Memorial Hospital to deny petitioner, or any other physician or surgeon, the use of the facilities of the hospital, that is, deny him the right to practice therein, or to be and remain a member of the staff of the hospital. The question has troubled the Courts, and they are divided in authority. We believe, though, they almost uniformly agree that the matter is one resting within the control or power of the Legislature. As has been noticed, our statute, in its application, is very broad and inclusive. The entire \\\"administration and management\\\" is \\\"vested in a board of hospital trustees\\\". Such board has power to \\\"provide for the employment and shall fix compensation and remove at pleasure all professional, technical and other employees, skilled or unskilled, as it may deem necessary for the operation and maintenance of the hospital\\\", and it \\\"shall make all rules and regulations governing # the operation of the hospital\\\"; and the hoard of trustees is admonished that the hospital shall he operated and maintained on a \\\"self-sustaining basis\\\".\\nThough a license to practice a profession is a valuable right, one that will he protected by the law, it is not a constitutional or inherent right of a citizen. In Re Application of Adkins, 83 W. Va. 673, 98 S. E. 888; In re Application for License to Practice Law, 67 W. Va. 213, 67 S. E. 597; Annotation, 24 A.L.R. 2d 850. In the granting of a license to practice a profession, the State's interest and concern extend beyond the initial licensing. Barsky v. Board of Regents of the University of the State of New York, 347 U. S. 442, 74 S. Ct. 650, 98 L. ed. 829; Newton v. Board of Commissioners of Weld County, 86 Colo. 446, 282 P. 1068; Richardson v. City of Miami, 144 Fla. 294, 198 So. 51.\\nThe case cited by counsel most factually similar to the instant one, having practically the same problems, is Duson v. Poage (Tex. Civ. App.), 318 S. W. 2d 89. There two osteopathic physicians and surgeons sought the right to use the facilities of a county hospital. A rule of the hospital required that only members of the hospital staff could use the facilities of the hospital, and that an applicant for membership ' ' shall be a graduate of a school of medicine approved by the American Medical Association\\\", which had the effect of excluding from practicing in the hospital all osteopathic physicians and surgeons. The trial court granted the relief sought, but on appeal it was held that the rule was reasonable, and was within the power of the county hospital board. After examining and analyzing the applicable statute, and noting the power vested in the Board of Management, the Court stated: \\\"This enjoined upon the Board the duty of adopting such rules as are reasonably necessary to carry out the purposes of the Act. The purpose of the Act was to enable a county to establish a hospital and operate it in a manner that would best serve the greatest number in the community. The Act recognizes there will be problems in -discipline, both with respect to patients and doctors. It authorizes the Board to adopt rules relating to discipline. One of the age-old problems is the conflict between osteopaths and allopaths. If in a given community the hospital can best be operated by the exclusion of osteopaths, we find no inhibition in law' to such- exclusion. We do not mean to say that in this case the appellees did anything to occasion any disciplinary action toward them. In fact, we feel the record shows to the contrary. It is, however, within the power of the Board to determine what rules are necessary to maintain discipline in a manner that will enable them to successfully operate the hospital. The Board might well not agree with the precipitate action of the allopaths, but still feel in the light of the problem thus presented that it was necessary to get them back on the job in order to adequately care for the health of the people in the community. From the record in this case, we feel that this was the position of the Board.\\\" Though in the cited case the Board of Management was faced with the indicated pending difficulty, we think the trustees in the instant case would be as justified in attempting to avoid the happening of such a situation, the impossibility of operating and maintaining the hospital, as they would be in finding a remedy after the situation had actually arisen. If the right or power existed in the trustees in the one case, it would exist in the other. In Newton v. Board of Commissioners of Weld County, 86 Colo. 446, 282 P. 1068, the Court held: \\\"2. Resolution of board of county commissioners barring osteopathic physicians from practicing their profession in the two county hospitals, erected pursuant to Laws 1925, p. 410, c. 143, held neither arbitrary nor unreasonable, nor does it deprive an osteopathic physician of his rights under the privileges and Immunities clause of state and federal Constitutions, and the due process and equal protection clauses of Const. U. S. Amend. 14.\\\"\\nIn 41 C.J.S., Hospitals, Section 5, it is stated: \\\"All hospitals have the power to prescribe reasonable rules for the conduct of the institution. Accordingly a hospital may prescribe reasonable rules concerning the qualifications of physicians allowed to practice in the hospital. The governing body of a hospital may properly permit all licensed practitioners to practice therein, and it has been held that any licensed physician, as long as he stays within the law, has the right to practice in the public hospitals of the state. The governing body of a hospital ordinarily may refuse to permit physicians professing a certain system of medicine to practice in the hospital There are many authorities to the same effect. Hamilton County Hospital v. Andrews, 227 Ind. 217, 84 N. E. 2d 469; Selden v. City of Sterling, 316 Ill. App. 455, 45 N. E. 2d 329; Lambing v. Board of Commissioners of Twin Falls County, 45 Idaho 468, 263 P. 992; Bryant v. City of Lakeland, 158 Fla. 151, 28 So. 2d 106; Group Health Cooperative of Puget Sound v. King County Medical Society, 39 Wash. 2d 586, 237 P. 2d 737; Hayman v. City of Galveston, 273 U. S. 414, 47 S. Ct. 363, 71 L. ed. 714.\\nThough there is authority to the contrary, see 26 Am. Jur., Hospitals and Asylums, Section 9, we are of the view that in the instant case the action of the board of trustees of the Preston Memorial Hospital, complained of, was within the power vested in the board by the statute quoted above. The power, of course, does not relate to , is not limited to, any particular licensed practitioner or to any school of medicine, but to the overall duty and responsibility of the board in the efficient operation or management of the hospital, for the purpose for which created, the best service for the greatest number of people in the community. Duson v. Poage (Tex. Civ. App.), 318 S. W. 2d 89. In the exercise of that discretion by the board, without arbitrariness, caprice or discrimination, the Courts can not interfer.\\nPlaintiff further contends that though the action of the board of trustees is found to fall within the power granted by the statute, the exercise of such power by the board was unreasonable, discriminatory, and constituted an abuse of discretion. We are not of that view, however. The question appears to be fully answered by the above quotation from Duson v. Poage. We are not saying, of course, that the board of trustees has the right to act arbitrarily or capriciously in any circumstance. We are merely saying that the action of the board, as it relates to plaintiff, was not unreasonable, but was reasonably related to the efficient management and operation of the hospital and to the duties and responsibilities imposed on the board of trustees by statute. See Newton v. Board of Commissioners of Weld County, 86 Colo. 446, 282 P. 1068; Lambing v. Board of Commissioners of Twin Falls County, 45 Idaho, 468, 263 P. 992; Findlay v. Board of Supervisors of County of Mohave, 72 Ariz. 58, 230 P. 2d 526; Bryant v. City of Lakeland, 158 Fla. 151, 28 So. 2d 106; Selden v. City of Sterling, 316 Ill. App. 455, 45 N. E. 2d 329; Group Health Cooperative of Puget Sound v. King County Medical Society, 39 Wash. 2d 586, 237 P. 2d 737, Annotation 24 A.L.R. 2d 850.\\nThe basic problem is not whether a certain practitioner, or practitioners of a certain school of medicine, may be allowed or denied the use of the facilities of such a hospital, or the right to practice therein. The real problem is one of practicality, the best manner of operating and maintaining a particular hospital in such a way that the health of the greatest number of people entitled to benefits therefrom will receive the same. In the instant ease, to illustrate, the board of trustees has decided that the proper and best way to operate the hospital, in the circumstances involved, is to deny the use of the facilities thereof to a particular practitioner, the plaintiff. That the plaintiff happens to be a practitioner of the osteopathic school of medicine is only incidental. If the situation and circumstances were the reverse we would have no hesitancy in saying that a practitioner of any other school of medicine could be denied the right to the use of such facilities.\\nPlaintiff further argues that the action of the hoard denying plaintiff the right to use the hospital facilities, for the reason that the defendant The Joint Commission on Accreditation of Hospitals refused to grant accreditation to the hospital, amounts to an unwarranted and unlawful delegation of the duties of the hoard of trustees to a private corporation not responsible or accountable to the State. We think, however, that the allegations of the hill of complaint, here on demurrer, do not fairly raise the question of the delegation of authority by the board of trustees. True, the action of the board complained of was probably the result of the refusal of The Joint Commission on Accreditation of Hospitals to grant accreditation to the Preston Memorial Hospital. That action of the board, nevertheless, was its own, and no delegation of authority appears from the allegations of the bill of complaint. See, however, Duson v. Poage, supra; Hamilton County Hospital v. Andrews, 227 Ind. 217, 84 N. E. 2d 469, certiorari denied 338 U.S. 831, 70 S. Ct. 73, 94 L. ed. 506.\\nA further argument of plaintiff relates to the contention that Code, 16-5B-8, as amended, relating to the licensing of hospitals, and providing that no license shall be refused \\\"solely by reason of the school or system of practice employed or permitted therein\\\", necessarily precludes the right of the board of trustees of Preston Memorial Hospital to deny plaintiff the right to practice in the hospital. We think, however, that the statute relates only to the question of licensing of a hospital, not to the question of what practitioners shall be entitled to practice in a licensed hospital, and does not attempt to control or limit the powers specifically vested in the board of trustees by Chapter 43 of the 1951 Acts of the Legislature.\\nWhat has been said, we think, sufficiently answers each of the several questions certified. The rulings of the Circuit Court of Preston County must be affirmed.\\nRulings affirmed.\"}"
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+"{\"id\": \"8580974\", \"name\": \"Sandra WITT v. CLENDENIN LUMBER and Ray Nicholes\", \"name_abbreviation\": \"Witt v. Clendenin Lumber\", \"decision_date\": \"1987-12-09\", \"docket_number\": \"No. 17279\", \"first_page\": \"672\", \"last_page\": \"673\", \"citations\": \"178 W. Va. 672\", \"volume\": \"178\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T02:44:36.551222+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Sandra WITT v. CLENDENIN LUMBER and Ray Nicholes.\", \"head_matter\": \"363 S.E.2d 749\\nSandra WITT v. CLENDENIN LUMBER and Ray Nicholes.\\nNo. 17279.\\nSupreme Court of Appeals of West Virginia.\\nDec. 9, 1987.\\nBelinda S. Morton, Fayetteville, for plaintiff.\\nCharles E. Hurt, Charleston, for defendants. .\", \"word_count\": \"509\", \"char_count\": \"3146\", \"text\": \"PER CURIAM:\\nThe plaintiff, Sandra Witt, appeals from a summary judgment of the Circuit Court of Fayette County entered on April 16, 1986, in favor of the defendant, Clendenin Lumber. The plaintiff asserts that there were sufficient disputed facts to avoid the summary judgment. The key issue is one of agency, and we affirm the summary judgment.\\nThe gist of the plaintiff's cause of action was that she had in June of 1983 noticed advertisements placed in the Charleston newspapers by Clendenin Lumber giving prices of Heil air conditioning units as installed by \\\"professional Heil dealers.\\\" Another advertisement identified mobile home air conditioning \\\"installed by Ray Nicholes Heating and Air Conditioning Heil Dealer.\\\" She alleged in her complaint that she contacted Ray Nicholes who, after checking her home, gave her an estimated price and then installed an air conditioning unit which she claimed came from Clendenin Lumber. After the unit was installed, she was informed by a local maintenance technician that the unit was not properly installed. She claimed that Clendenin was liable because its advertisement suggested Nicholes was its agent.\\nIn its motion for summary judgment, Clendenin, through its president, filed an affidavit denying any agency with Ni-choles. The affidavit pointed out that Clendenin was an authorized distributor of Heil units and that Nicholes was simply one of several authorized dealers to whom it sold Heil units. It also noted that the complaint contained no allegation that Ni-choles represented, either expressly or impliedly, that he was an agent of Clendenin.\\nThe plaintiff filed no counter affidavits, but took the position in her brief as she does here that the advertisements alone created an implied agency. We agree with the lower court that advertisements do not imply an agency relationship. In Thompson v. Stuckey, 171 W.Va. 483, 487, 300 S.E.2d 295, 299 (1983), we addressed the concept of implied agency and indicated the acts must be \\\"within the apparent authority that the principal has knowingly permitted the agent to assume. General Elec. Credit Corp. v. Fields, 148 W.Va. 176, 133 S.E.2d 780 (1963).\\\" Here the advertisements spoke only to installation by \\\"professional Heil dealers.\\\" There is nothing to suggest that they were Clendenin's agents.\\nIn the face of the affidavits of Clendenin and the failure of the plaintiff to file any counter affidavit to raise an issue of knowing permission, we find no genuine issue of material fact and apply the traditional test found in Syllabus Point 4 of Aetna Cas. and Surety Co. v. Federal Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963):\\n\\\"If there is no genuine issue as to any material fact summary judgment should be granted but such judgment must be denied if there is a genuine issue as to a material fact.\\\"\\nFor the foregoing reasons, the judgment of the Circuit Court of Fayette County is affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"8581636\", \"name\": \"Henry Justice, Administrator, etc. v. Amherst Coal Company\", \"name_abbreviation\": \"Justice v. Amherst Coal Co.\", \"decision_date\": \"1958-02-18\", \"docket_number\": \"No. 10906\", \"first_page\": \"353\", \"last_page\": \"360\", \"citations\": \"143 W. Va. 353\", \"volume\": \"143\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T17:22:08.834072+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Henry Justice, Administrator, etc. v. Amherst Coal Company\", \"head_matter\": \"Henry Justice, Administrator, etc. v. Amherst Coal Company\\n(No. 10906)\\nSubmitted January 14, 1958.\\nDecided February 18, 1958.\\nJackson, Kelly, Holt & O\\u2019Farrell, W. T. O\\u2019Farrel, James K. Brown, for plaintiff in error.\\nMartin C. Bowles, Toney E. Cline, for defendant in error.\", \"word_count\": \"2097\", \"char_count\": \"11957\", \"text\": \"Riley, Judge:\\nThis action of trespass on the case was instituted by Henry Justice, who sues as administrator of the estate of Dallas Ray Justice Deceased, in the Court of Common Pleas of Kanawha County, against Amherst Coal Company, a corporation, for the alleged wrongful death on April 16,1955, of the decedent, Dallas Ray Justice, an infant ten years of age. The Court of Common Pleas of Ka-nawha County entered judgment in favor of the plaintiff and against the defendant, based upon a verdict of the jury in the amount of ninety-five hundred dollars.\\nThereupon the defendant timely sought a writ of error and supersedeas to the judgment from the Circuit Court of Kanawha County, which was refused by the circuit court by order entered on the 11th day of May, 1957. To this order the defendant coal company prosecutes writ of error to this Court.\\nPlaintiff's declaration charges that on its leasehold the defendant maintained a recreation hall known as the \\\"Scout Hall\\\"; that to the knowledge of the defendant children in the defendant's coal camp, where the Scout Hall was located, were accustomed to play on the premises in, around and adjacent to the Scout Hall; and that defendant \\\"did dump, left or cause to be dumped in the trash, rubbish and refuse on the ground near the Scout Hall, a place where children of tender years customarily and usually played and frequented, a certain container, filter, or object which contained or was saturated with a highly inflammable, combustible and explosive substance, the said defendant having knowledge that such container, filter, or object would be a source of great danger to said children\\nThe declaration further charges that \\\" his decedent, Dallas Ray Justice, aged 10 years after the aforesaid container, filter or object was dumped, thrown and left at the aforesaid dump by an employee and agent of said defendant, to-wit, went with his youthful companion to play behind the said Scout Hall; that while so engaged in play the youths saw the said container, filter, or object left by the Coal Company; that Dallas Ray Justice, being wholly without knowledge of its danger, and without warning from anyone of its inflammable and explosive nature proceeded to handle the said container, filter, or object as a play thing; that the substance contained therein dripped, leaked, or poured from the container, filter or object and became ignited, inflamed, and exploded with great force and violence and as a proximate and direct result thereof the clothing of the said Dallas Ray Justice was caught on fire\\nPlaintiff's evidence showed that Arthur Gartin, an employee of the defendant, engaged in cleaning up defendant's coal camp, at some time prior to the date of the death of plaintiff's decedent, collected a load of trash from \\\"the lower end of the truck garage\\\", belonging to the defendant, and dumped it over the creek bank behind Scout Hall, which hall consisted of a quonset hut. In this trash were an oil filter and two cardboard boxes of the kind or variety in which \\\"oil filters\\\" were kept. Gartin identified the oil filter, which he admitted was similar to the one which was introduced into evidence as \\\"Defendant's Exhibit 1A\\\". Gartin testified without contradiction that he did not know when the filter in question was dumped, stating only it was some time before the decedent's death, which occurred shortly after the explosion.\\nPlaintiff's witness, Clyde Hale, ten years of age, testified that he was with Dallas Ray Justice when the explosion occurred; that while the two boys were gathering pop bottles they found \\\"this can\\\" and a match box; that plaintiff's decedent \\\"got this can and poured some out and told me to try the match to it\\\"; and that the can or filter blew up with a sound like a \\\"cannon\\\", as a result of which Dallas Justice caught on fire.\\nOn direct examination Hale was asked if the thing which was used to pour out the liquid looked like either of the oil filters which had been identified, and which were subsequently introduced in evidence, to which Hale answered, \\\"No\\\". This witness testified further that he thought that the liquid which was poured out was lamp oil.\\nOn cross-examination Hale testified that a can introduced as \\\"Defendant's Exhibit No. 3\\\", resembled the can from which the liquid was poured; that the can from which the substance was poured had two holes in it, similar to those in the can introduced as \\\"Defendant's Exhibit No. 3\\\"; and that the liquid in question was poured from these holes.\\nPlaintiff's witness, Ruth Price, testified that after the explosion she went behind the Scout Hall and found a burned area on the ground and an oil filter similar to \\\"Defendant's Exhibits Nos. 1A and 2A\\\", which oil filter had been .burned. This filter gave no evidence of having exploded. Being referred to \\\"Plaintiff's Exhibit No. 1\\\", a photograph showing several tin cans lying in the rear of the quonset hut, this witness testified that there were such cans lying around immediately following the explosion; and that people in the camp threw cans and other trash there, and also that children brought cans there. This witness further testified that the area behind the Scout Hall was a sort of loafing place for the public, which had access to it.\\nPlaintiff's witness, Paul Price, testified that after the explosion he saw a silver oil filter that had been burned, which was lying some ten or twelve feet from the burned spot; and that he threw this filter into the nearby creek. This witness also testified that children were accustomed to play on the property upon which the alleged explosion occurred; that such property was under defendant's control; that the public generally had access to the premises and used them day and night; and that at the time of the explosion there were tin cans lying about the premises.\\nThe record discloses that the explosion occurred upon what would generally be regarded as a recreation center, in fact, a basketball board had been erected on the premises.\\nTony Bevino, a witness for plaintiff, testified that after the explosion he found an oil filter \\\"at the lower end from the burned area\\\", which was similar to the one introduced in evidence. This filter, he testified, was full of little holes, and was similar to the oil filters used in defendant's bulldozers. This witness also testified that there were different sizes and kinds of tin cans lying behind Scout Hall immediately after the explosion.\\nDefendant's witness, W. G. Beddow, general manager of Amherst Coal Company, testified that the defendant did not have oil and gas rights on the property comprising the recreation center, but that another company had such rights and had used tractors incidental to operating for oil and gas; that other firms built pipe lines over the premises and used tractors incidental thereto; that defendant did not own the timber on the land, but that another company removed the timber in 1954, using tractors, caterpillars, bulldozers and similar equipment in such lumbering operations; and that this witness had seen gasoline and kerosene poured out of tin can on a fire, which caused the container to explode and shoot a distance of twenty or thirty feet.\\nDefendant's witness, H. C. Taylor, a mechanic employed by the coal company, testified that at the direction of counsel for the defendant he removed from a diesel truck and from a bulldozer the filters introduced into evidence as \\\"Defendant's Exhibits 1A and IB\\\"; that he had determined that it took the filters about fifteen minutes to drain; that when the filters are in use diesel fuel is pumped through them; that these were the types of filters in use when plaintiff's decedent was burned; that at the time of the explosion the defendant was using in its vehicles diesel fuel; that witness had handled and been around diesel fuel for the past ten years; and that such fuel does not bum easily, but only bums when subjected to a hot fire.\\nDefendant's witness, James E. Neff, testified that he had done mechanical work; that he had had occasion to burn diesel fuel; and that it was not highly inflammable, but on the contrary was difficult to ignite. This witness also testified that the fuel could not be ignited with a match; and that the usual method of igniting diesel fuel was to use a torch. He also stated that diesel fuel was burned in open cans or salamanders for heating purposes.\\nOn the record it was stipulated that : (1) Henry Justice was duly and legally appointed administrator of the estate of Dallas Ray Justice, deceased, by the County Court of Logan County; (2) he is the duly acting administrator of his son's estate; and (3) the death of Dallas Ray Justice was caused by burns he received on April 16, 1955.\\nThe issues are: (1) Did the evidence justify a finding by the jury that the defendant was guilty of primary negligence, which proximately caused the decedent's death; (2) was the verdict inconsistent with and contrary to the plain preponderance of the evidence; (3) did the trial court err in refusing defendant's motion for a directed verdict; and (4) did the Circuit Court of Ka-nawha County err in refusing to grant the defendant a writ of error and supersedeas to the judgment of the Court of Common Pleas of Kanawha County.\\nIn this jurisdiction the doctrine of attractive nuisances is not recognized. Ritz v. City of Wheeling, 45 W. Va. 262, 31 S. E. 993, 43 L. R. A. 148; Uthermohlen v. Bogg's Run Min. & Mfg. Co., 50 W. Va. 457, 40 S. E. 410, 55 L. R. A. 911, 88 Am. St. Rep. 884; Conrad v. Baltimore and Ohio Railroad Co., 64 W. Va. 176, 61 S. E. 44, 16 L. R. A. (N.S.) 1129; Martino v. Rotondi, 91 W. Va. 482, 113 S. E. 760, 36 L. R. A. 6; Adams, Admr. v. Virginian Gasoline & Oil Co., 109 W. Va. 631, 156 S. E. 63; White v. Kanawha City Co., 127 W. Va. 566, 34 S. E. 2d 17. In Rine v. Morris, 99 W. Va. 52, 127 S. E. 908, this Court held: \\\"One leaving an instrumentality dangerous to children at a place where they have a right to be, is charged with notice of its attraction to them. It is his duty to use ordinary care to prevent injury to a child thereby.\\\" See Reed, Sheriff, Adm'r., etc. v. Janutolo, 129 W. Va. 563, 42 S. E. 2d 16; Wellman v. Fordson Coal Co., 105 W. Va. 463, 143 S. E. 160; and Colebank, Admr. v. Nellie Coal & Coke Co., 106 W. Va. 402, 145 S. E. 748.\\nHowever, in the case at bar the plaintiff has wholly failed to prove by substantial evidence that the can or filter containing a substance of explosive nature had been dumped on or near the playground by the defendant Coal Company.\\nIn an action at law to recover damages either for wrongful death or for personal injuries, a verdict in favor of the plaintiff, or in the case of an action of wrongful death in favor of a plaintiff administrator, which is wholly unsupported by evidence on a point essential to the finding, or is based upon mere speculation or conjecture, should be set aside and a new trial awarded. Miller v. United Fuel Gas Co., 88 W. Va. 82, 106 S. E. 419; State v. Hurst, 93 W. Va. 222, 116 S. E. 248; Burk v. Huntington Development & Gas Co., 133 W. Va. 817, 58 S. E. 2d 574; Ritz v. Kingdon, 139 W. Va. 189, 79 S. E. 2d 123; Stenger v. Hope Natural Gas Co., 139 W. Va. 549, 80 S. E. 2d 889; Bower v. Brannon, 141 W. Va. 435, 90 S. E. 2d 342; and Keefer v. Logan Coca-Cola Bottling Works, 141 W. Va. 839, 93 S. E. 2d 225.\\nFor the foregoing reasons, this Court will reverse the judgments of the Circuit Court and the Common Pleas Court of Kanawha County, set aside the verdict of the jury, and remand this cause for a new trial in the Common Pleas Court of Kanawha County.\\nJudgments reversed; verdict set aside; new trial awarded.\"}"
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+"{\"id\": \"8581752\", \"name\": \"Pete Michael Meadows, An Infant, etc. v. Lawrence Stickler, et al\", \"name_abbreviation\": \"Meadows v. Stickler\", \"decision_date\": \"1959-10-06\", \"docket_number\": \"No. 11027\", \"first_page\": \"644\", \"last_page\": \"652\", \"citations\": \"144 W. Va. 644\", \"volume\": \"144\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T01:13:20.527479+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Pete Michael Meadows, An Infant, etc. v. Lawrence Stickler, et al\", \"head_matter\": \"Pete Michael Meadows, An Infant, etc. v. Lawrence Stickler, et al\\n(No. 11027)\\nSubmitted September 23, 1959.\\nDecided October 6, 1959.\\nDodrill, Barrett, Dunbar & Chafin, for plaintiff in error.\\nJenkins & Jenkins, John E. Jenkins, John E. Jenkins, Jr., for defendants in error.\", \"word_count\": \"2709\", \"char_count\": \"15046\", \"text\": \"H\\u00e1ymond, Judge :\\nIn this action of trespass on the case, instituted in the Circuit Court of Cabell County, the plaintiff, Pete Michael Meadows, an infant, seeks to recover damages from the defendants, Lawrence Stickler and Billie Jo Stickler, husband and wife, for personal injuries alleged to have been caused by the negligence of the defendants.\\nThe case was tried upon the declaration of the plaintiff and the plea of not guilty filed by the defendants. After a motion by the defendants to strike the evidence in behalf of the plaintiff made at the conclusion of the evidence was overruled, the jury returned a verdict in favor of the defendants. The court overruled the motion of the plaintiff to set aside the verdict and grant him a new trial, entered judgment that the plaintiff recover nothing from the defendants, and awarded costs against the plaintiff and his next friend. To this judgment, rendered March 7, 1958, this Court granted this writ of error and supersedeas on October 10, 1958, upon the application of the plaintiff.\\nThe plaintiff, an infant about four years of age and about three and one-half feet in height, residing at the home of his parents on the east side of 25th Street in the City of Huntington, was severely and permanently injured when struck by an automobile owned by Lawrence Stickler and operated by his wife, Billie Jo Stickler, while the plaintiff was attempting to cross that public street about 4:45 o'clock in the afternoon of May 13, 1957. 25th Street extends in a southerly direction from its intersection with 10th Avenue, curves to the left near the place where the plaintiff was injured, and is nineteen feet in width from curb to curb. At the time of the accident at least two automobiles, each approximately seven feet in width, were parked near the curb on the east side of 25th Street and their position left about twelve feet of the street between the parked automobiles and the west curb for vehicular traffic.\\nWhen the automobile driven by the defendant Billie Jo Stickler, moving south at a speed of between fifteen and twenty miles per hour, reached a point to the right of the rear end of the automobile parked in front of the home of the plaintiff, a station wagon, which appears to have been the second of the parked' automobiles, the driver, who until that moment had not seen or discovered the presence of the plaintiff in the street, saw his head immediately in front of its left front fender. The automobile driven by the defendant Billie Jo Stickler was seventeen feet in length, about seven feet in width, and the top of its left front fender was about three feet above the surface of the street. The front end of the automobile struck the plaintiff and knocked him to a point on the right side of the street about three feet from the west curb. The driver immediately applied the brakes, steered the automobile to the right or west curb of the street, and brought it to a stop at a distance variously estimated at thirty to eighty feet south of the point at which the plaintiff was struck.. None of the wheels of the automobile passed over the body of the plaintiff but the force with which the front of the automobile struck and knocked him to the hard surface of the street rendered him unconscious, and he remained on the street in that condition until carried from the scene within a few minutes after he was injured. He was taken to a hospital and there confined for nine days for treatment which included surgery to relieve him from the effects of a severe fracture of the skull.\\nThe only witness who saw the automobile strike the plaintiff was its driver the defendant Billie Jo Stickler.\\nOne witness in behalf of the plaintiff,, a woman who lived near the home of the plaintiff on the east side of 25th Street, saw the plaintiff going from the east side of the street behind the station wagon and also saw him in the street after he had passed behind it but she did not see the plaintiff when he was struck by the automobile driven by the defendant Billie Jo Stickler. This witness, who was standing on the sidewalk near her automobile which was parked on the east side of the street about two and one-half car lengths north of the point at which the plaintiff was struck, also saw the automobile driven by the defendant Billie Jo Stickler when it passed her automobile at the time she saw the plaintiff go behind the station wagon and from behind it into the street. This witness testified that when the automobile passed the parked automobile of the witness its driver was looking to the left and toward the witness; that she did not know in which direction the driver was looking at the time the automobile struck the plaintiff; and that the driver of the automobile because of the curve in the street and the parked automobiles could not see the plaintiff in the street when the automobile driven by her passed the parked automobile of the witness.\\nAnother witness in behalf of the plaintiff, a man who lived in a house on the west side of 25th Street opposite the home of the plaintiff, was sitting on his front porch, heard a noise, looked and saw the plaintiff fall to the pavement of the street and the car pass over him. He did not see the automobile strike the plaintiff but saw him lying in the street about three feet from the west curb and the automobile when it came to a stop about eighty feet south of the point where the plaintiff lay in the street.\\nAnother witness in behalf of the plaintiff, a girl fifteen years of age, who was standing on the west side of 25th Street north of the scene of the accident heard but did not see the automobile strike the plaintiff and saw the plaintiff lying in the street after he was struck by the automobile.\\nThe defendant Billie Jo Stickler, the only witness produced in behalf of the defendants, testified that as she drove the automobile south on 25th Street she saw a line of parked automobiles on the left side of the street; that as she entered the curve and approached the station wagon she was looking straight ahead; that she did not recall that she looked to the left at any time; that she did not see the plaintiff or any other children in or near the street; that when her automobile was even with the rear of the station wagon she suddenly saw the plaintiff's head and \\\"heard the thud of the car.\\\"; that she saw the plaintiff's head in front of the left front fender of the automobile and heard the \\\"thud\\\" simultaneously and that these incidents happened instantly; that the plaintiff was moving from left to right; that she immediately applied the brakes and steered the car to the right to avoid running over the plaintiff; that none of the wheels passed over the plaintiff; and that she brought the automobile to a stop within a distance of a length and a half of the automobile or approximately thirty feet.\\nUpon the foregoing evidence the question of negligence on the part of the defendants was a question for the jury. The evidence is conflicting as to whether the defendant Billie Jo Stickler was looking to the left or forward as the automobile approached the station wagon and as to whether she should have seen the plaintiff in the street before the automobile came to the rear of the station wagon; and the evidence does not definitely disclose whether the plaintiff was running or walking or how far he had traveled in crossing the street when he was injured. The facts shown by the evidence are such that reasonable men may draw different conclusions from them as to the negligence of the defendants. When the evidence is conflicting or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them the questions of negligence and contributory negligence are for the jury. Prettyman v. Hopkins Motor Company, 139 W. Va. 711, 81 S. E. 2d 78; Davis v. Sargent, 138 W. Va. 861, 78 S. E. 2d 217; Wilson v. Edwards, 138 W. Va. 613, 77 S. E. 2d 164; Thrasher v. Amere Gas Utilities Company, 138 W. Va. 166, 75 S. E. 2d 376; Daugherty v. Baltimore and Ohio Railroad Company, 135 W. Va. 688, 64 S. E. 2d 231; Isgan v. Jenkins, 134 W. Va. 400, 59 S. E. 2d 689; Davis v. Pugh, 133 W. Va. 569, 57 S. E. 2d 9; Gilkerson v. Baltimore and Ohio Railroad Company, 129 W. Va. 649, 41 S. E. 2d 188; Yuncke v. Welker, 128 W. Va. 299, 36 S. E. 2d 410. In an action to recover damages for personal injury caused by the negligence of the defendant it is the peculiar providence of the jury to determine the questions of negligence and contributory negligence when the evidence is conflicting, or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them. Davis v. Sargent, 138 W. Va. 861, 78 S. E. 2d 217; Yuncke v. Welker, 128 W. Va. 299, 36 S. E. 2d 410; Taylor v. City of Huntington, 126 W. Va. 732, 30 S. E. 2d 14. When a case involving conflicting testimony and circumstances upon the questions of negligence and contributory negligence has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless it is plainly contrary to the weight of the evidence or is without any evidence to support it. Davis v. Sargent, 138 W. Va. 861, 78 S. E. 2d 217; Davis v. Pugh, 133 W. Va. 569, 57 S. E. 2d 9; Yuncke v. Welker, 128 W. Va. 299, 36 S. E. 2d 410; Dangerfield v. Akers, 127 W. Va. 409, 33 S. E. 2d 140; Webb v. Brown and Williamson Tobacco Company, 121 W. Va. 115, 2 S. E. 2d 898; Ware v. Hayes, 119 W. Va. 585, 195 S. E. 265.\\nThe plaintiff assigns as error the action of the circuit court in giving, over objection, Instruction No. 1 and Instruction No. 2 offered by the defendants.\\nInstruction No. 1 told the jury that if the jury believed the defendant Billie Jo Stickler, through no fault of her own, was suddenly confronted by an emergency when the plaintiff proceeded into 25th Street in front of the automobile and that she was compelled to act instantly in an effort to avoid striking him, she was not guilty of negligence if she made such choice as a person of ordinary prudence should have made even though she did not make the wisest choice, and that whether she used reasonable care in the circumstances was a question for the jury. The plaintiff does not complain of the form of the instruction but challenges it as erroneous on the ground that it is not supported by the evidence. There is no merit in this contention of the plaintiff. According to the testimony of the defendant Billie Jo Stickler she was operating the automobile at a reasonable rate of speed, was looking forward and did not see the plaintiff until he suddenly came from behind the parked station wagon immediately in front of the automobile, and that when he appeared in front of the automobile, which was when she first saw him, it struck him at that instant. This testimony, which the jury believed as indicated by its verdict, established a sudden emergency which was not caused by her but was caused by the sudden presence of the plaintiff and the jury found, that by immediately applying the brakes and steering the automobile to her right to avoid passing over the plaintiff, she exercised the care of a reasonably prudent person in such circumstances. The absence or presence of a sudden emergency is ordinarily, as here, a question of fact for jury determination. Matthews v. Cumberland and Allegheny Gas Company, 138 W. Va. 639, 77 S. E. 2d 180; Somerville v. Dellosa, 133 W. Va. 435, 56 S. E. 2d 756.\\nIt is well established that the rule of law which applies to the conduct of a person in a sudden emergency created by another person is that if the person so confronted acts according to his best judgment or, because of insufficient time in which to form a judgment, fails to act in the most judicious manner, he is not guilty of negligence if he exercises the care of a reasonably prudent person in like circumstances. Mulroy v. Co-Operative Transit Company, 142 W. Va. 165, 95 S. E. 2d 63; Matthews v. Cumberland and Allegheny Gas Company, 138 W. Va. 639, 77 S. E. 2d 180; Laphew v. Consolidated Bus Lines, 133 W. Va. 291, 55 S. E. 2d 881; O'Dell v. Universal Credit Company, 118 W. Va. 678, 191 S. E. 568; Robertson v. Hobson, 114 W. Va. 236, 171 S. E. 745; Warth v. County Court of Jackson County, 71 W. Va. 184, 76 S. E. 420; Dimmey v. Wheeling and Elm Grove Railroad Company, 27 W. Va. 32; Jones v. Hanbury, 158 Va. 842, 164 S. E. 545; 38 Am. Jur., Negligence, Section 41. As Instruction No. 1 contained a correct statement of law and was based upon the evidence the action of the circuit court in giving it was proper..\\nInstruction No. 2 told the jury that if the jury believed from the evidence that the plaintiff suddenly and unexpectedly proceeded into 25th Street in front of the automobile driven by the defendant Billie Jo Stickler, which resulted in the injury, and if the jury found that the defendant Billie Jo Stickler used ordinary and reasonable care for the safety of the plaintiff, kept the automobile under control to avoid striking the plaintiff and did not know and could not have known that the plaintiff was in a perilous position in the path of the automobile in sufficient time to bring it under control to avoid striking the plaintiff, the plaintiff could not recover and the jury should find for the defendants. The plaintiff attacks the instruction on the ground that the statement in the instruction that the plaintiff suddenly and unexpectedly proceeded into 25th Street is not supported by the evidence. As already indicated it is clear from the testimony of the defendant Billie Jo Stickler, and from the circumstances in which the plaintiff was injured, that he suddenly appeared in front of the automobile driven by the defendant Billie Jo Stickler and that she could not, in the circumstances, have reasonably expected his presence in that position at that time. As there is sufficient evidence to support Instruction No. 2 and as it does not misstate the law, the circuit court was justified in giving that instruction.\\nAn instruction which correctly states the law and is based upon evidence is a good instruction and, if not repetitious or misleading, should be given by the trial court when requested by the party who offers such instruction. See Foster v. Brennan, 113 W. Va. 122, 166 S. E. 845; Wilson v. McCoy, 93 W. Va. 667, 117 S. E. 473; State v. Medley, 66 W. Va. 216, 66 S. E. 358, 18 Ann. Cas. 761; Morrison v. Fairmont and Clarksburg Traction Company, 60 W. Va. 441, 55 S. E. 669; Jordon v. City of Benwood, 42 W. Va. 312, 26 S. E. 266, 36 L.R.A. 519, 57 Am. St. Rep. 859; State v. Evans, 33 W. Va. 417, 10 S. E. 792.\\nAs the record does not disclose error prejudicial to the plaintiff the judgment of the Circuit Court of Cabell County is affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"8581882\", \"name\": \"State of West Virginia v. Melvin Loveless\", \"name_abbreviation\": \"State v. Loveless\", \"decision_date\": \"1954-03-09\", \"docket_number\": \"No. 10617\", \"first_page\": \"454\", \"last_page\": \"474\", \"citations\": \"139 W. Va. 454\", \"volume\": \"139\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T23:40:08.506874+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judge Lovins has authorized me to say that he joins in this concurrence.\", \"parties\": \"State of West Virginia v. Melvin Loveless\", \"head_matter\": \"State of West Virginia v. Melvin Loveless\\n(No. 10617)\\nSubmitted January 19, 1954.\\nDecided March 9, 1954.\\nCapehart, Miller & Capehart, for plaintiff in error.\\nJohn G. Fox, Attorney General, Robert E. Magnuson, Assistant Attorney General, for defendant in error.\", \"word_count\": \"7071\", \"char_count\": \"40681\", \"text\": \"Browning, Judge:\\nMelvin Loveless was indicted at the May, 1953 Term of the Circuit Court of Logan County on two counts: Murder, and accessory before the fact of murder. Subsequently, on June 8, 1953, at the same term, a special grand jury met and indicted Loveless as an accessory before the fact of murder. The case was set for trial on June 15, 1953, upon a plea of not guilty, and on that day a written motion for a continuance was filed, assigning as grounds: (1) The hostile attitude of the court at that time due to the fact that at a previous trial of another involved in the murder, a witness, Beatty, in whose home the offense was committed, assaulted one of the attorneys for the defense; (2) that said Beatty would be a witness at the trial and should have time to cool off; (3) that newspaper articles had been highly prejudicial to Loveless; (4) that trial was set for one week after the return of the June 8 indictment, which did not allow a reasonable time in which to secure the presence of witnesses; and (5) counsel had had no opportunity to consult or talk to the persons theretofore tried or who had pleaded guilty to the same offense. The motion then set out that there had been no other continuance on behalf of Loveless, and recited several newspaper articles which were alleged to be highly prejudicial and inflammatory.\\nThe motion for a continuance was overruled, the case proceeded to trial, and a verdict of guilty, without recommendation, was returned by the jury. Judgment was entered on the verdict, sentencing the defendant to be executed, to which this Court granted a writ of error and supersedeas on September 1, 1953.\\nNumerous errors have been assigned as grounds for reversal, but in the briefs and argument, counsel have apparently abandoned all except the following: (1) The court erred in overruling defendant's motion to quash the indictment; (2) the court erred in overruling defendant's motion for a continuance; (3) the court erred in giving to the jury State's Instruction No. 2; (4) there is a fatal variance between the indictment and the evidence introduced by the State; (5) the verdict of the jury required the imposition of a heavier penalty upon the defendant as an accessory before the fact than was imposed upon the principals; and (6) the court erred in not properly instructing the jury as to the effect of its verdict should it find the defendant guilty of murder in the first degree.\\nThe defendant relies upon the court's charge to the grand jury as reported in the press to sustain the first assignment, but this record does not disclose that such a motion was made to the trial court, nor was the point assigned as error in the motion for a new trial. The question can not be raised for the first time in this Court, inasmuch as an accused waives secondary defects in an indictment when neither demurrer nor motion to quash is interposed. However, he does not thereby waive primary defects therein, that is, he does not waive the objection that the'facts stated do not constitute an offense, but that point is not urged by counsel, and an examination of the indictment in this case shows that it clearly meets the requirements of the Constitution that the defendant be advised therein of the character and nature of the accusation against him.\\nOn the morning of defendant's trial, his counsel submitted to the court a written motion for a continuance. A discussion of this motion and assignment of error as to the court's ruling thereon requires a more detailed recitation of the facts. The crime for which the defendant was convicted was committed on the morning of April 29, 1953, and at the regular term of the Logan County Circuit Court, which convened on May 12, 1953, Albert K. Puckett, Douglas Eugene Sherman, James R. Jones and Charles Edward Ford were indicted as principals, and the defendant was indicted both as principal and accessory before the fact to the murder. A sixth man, Davis Jefferson Williams, apparently also was indicted by the regular grand jury, but whether as a principal or an accessory is not clear from this record, he having been committed to an institution, and has not yet been arraigned. On the 15th \\u2022 day of May, trials were set for those indicted for the Reed murder, the date of defendant's trial being fixed for May 28, subsequent to all the others. Thereafter, and prior to the 28th, Jones and Ford were tried jointly by a jury and convicted of murder in the first degree with a recommendation of imprisonment, and Puckett and Sherman subsequently pleaded guilty to murder in the first degree, and all four were sentenced to a term of life in the penitentiary. In view of alleged contradictory statements made by the four men, whose cases had already been disposed of, the prosecuting attorney requested the court to convene a special grand jury for the purpose of re-indicting Loveless. Such a special grand jury was called for June 8, 1953, and an indictment was returned against the defendant similar to the previous one, but different in that an additional person was named as being a principal in the murder. The written motion recites, in support of the defendant's contention that a hostile atmosphere existed against him, an altercation that occurred at the trial of two of the defendant's alleged accomplices during the same term of court between Nelson Beatty, in whose apartment the murder took place, and Ira P. Hager, an attorney of Logan, and of defense counsel in that case. The motion states that Hager was assaulted by Beatty during the trial, and that when Hager rushed into the courtroom to report the altercation that there was a stampede of spectators in the courtroom, and officers were required to draw their revolvers to restore order. The principal reliance for a continuance, however, is based upon several newspaper articles which had appeared in the Logan Banner, a daily newspaper with general circulation in Logan County; The Charleston Gazette, likewise a daily newspaper with a large circulation in that county; and the Bluefield Daily Telegraph, which it was alleged had a small circulation in certain sections of the county. Shortly before the date of defendant's trial, an article of May 28 in the Logan Banner gave considerable details of the opening of the trial on that day of Ford and Jones. Reference is made to the fact that \\\"four other men implicated in the holdup-murder will follow today's trial. They are Melvin Loveless, Charleston numbers operator, who is reported to be the instigator of the crime, The article related in some detail the opening statement to the jury by the prosecuting attorney in which the defendant Loveless was depicted as the leader of the group of men charged with the offense. Mr. D. Boone Dawson, also of counsel for the defense in that case, was quoted as telling the jury that: \\\" Loveless had been planning the robbery for sometime and that he was familiar with Beatty's habits. He added that Loveless contacted Puckett and Williams in Martinsville, Virginia, and then asked Ford and Jones to join in the proposed robbery. He said the two young men on trial today got into the thing before they knew what they were getting into and that when things turned out as they did there was nothing for them to do but to tell the truth.\\\"\\nAn article from the Charleston Gazette of June 9, under an associated press heading, referring to the re-indictment of the defendant, said \\\" Six men, including Loveless, were rounded up within a few days of the slaying. Co-defendants of Loveless, identified by Mayor John T. Copenhaver of Charleston as a numbers racketeer, said he organized the robbery in the belief that Beatty had $45,000 in the apartment. \\\"\\nAn article from the Logan Banner, under date of June 8, and under a headline which stated. \\\"SPECIAL GRAND JURY CONVENES MURDER INDICTMENT IS SOUGHT BY STATE.\\\", quoted excerpts from the judge's charge to the jury:\\n\\\" 'Some have been tried,' the judge said, referring to five other men who were indicted by the regular session of the grand jury in connection with the Reed case, 'and some have pleaded.'\\n\\\" 'It is imperative that these cases be completed this term of court.' Judge Chambers added. T have called this special grand jury in order to offer the man a speedy trial. I believe that a man should have a trial as soon as possible.' \\\"\\nThe article further states that the judge told the jurors that if the prosecuting attorney had other cases to present they should consider them and remain in session as long as it was necessary to complete the work that was to be done. An article of similar import was quoted from the Bluefield Daily Telegraph.\\nThe prosecuting attorney produced seven witnesses, residents of different sections of Logan County, who orally testified that they had neither heard nor observed anything to indicate that the public generally was inflamed or prejudiced against the defendant to the extent that he could not get a fair trial. At the end of this testimony; the defendant, by counsel, orally asked the court to consider one additional ground in support of the written motion for a continuance. Counsel informed the court that, deputy sheriffs were stationed at the two entrances to the courtroom, and that they were searching \\\"or pet (sic) down each of the men spectators and witnesses who come in, and search the pocketbooks of the women spectators, and this is done in view of the assembled jurors, and indicates to some degree the state of tension and uneasiness which surrounds this trial.\\\" The court stated upon the record that the altercation between Beatty and Ha.ger was a personal one with reference to some remark Hager had made during argument of the former case, and that, although some commotion was created in the courtroom when Hager announced in the presence of the crowd that he had been assaulted, shortly thereafter the court room was settled and the trial proceeded. The court further stated that it did not order the searching of spectators as they entered the courtroom, but that it had instructed the sheriff to keep the aisles and halls clear so that the trial could be carried on in an orderly manner. The judge said that he assumed that the reason the sheriff was searching the people as they entered the courtroom was because the court had received a letter \\\"from some 'crack pot' containing a warning or threat, not against the defendant at bar, but against the Court or officials of the court, if anybody, advising him not to try the Loveless case on Monday, saying any other day would be O.K.\\\" The court said further \\\"that is perhaps the reason the sheriff is taking the security measure to see that the Court, counsel, witnesses or anybody are not shot in the court room. The Court feels there is no danger.\\\" The motion for a continuance was overruled.\\nCounsel for defendant rely upon the case of Delaney v. U. S., 199 F. 2d. 107, (1st Cir. 1952), in support of their contention that it was reversible error not to grant a continuance upon the showing made. In that case the Circuit Court of Appeals of the 1st Circuit reversed the conviction of a former collector of internal revenue who was indicted and tried upon charges that he had received payment to influence his decision and action regarding the collection of income taxes, and for making false certificates of the discharge of tax liens, upon the ground that the defendant had made a proper showing for a continuance. In the Delaney case, subsequent to the indictment, and prior to the trial, a congressional investigating committee conducted public hearings concerning defendant's activities. These hearings received nation-wide publicity. The court in setting aside the conviction and awarding a new trial said: \\\"This is not a case of pretrial publicity of damaging material, tending to indicate the guilt of the defendant, dug up by the initiative and private enterprise of newspapers. Here the.United States, through its legislative department by means of open committee hearings held shortly before the trial of a pending indictment, caused and stimulated this massive pre-trial publicity, on a nation-wide scale. \\\" No decision of this Court can be found involving the precise ground for a continuance offered in this case, although the question has been dealt with often upon a motion for change of venue. The defendant did not ask for a ch\\u00e1nge of venue, stating in the motion, that he had no reason to believe that he could not get a fair trial in Logan County at the succeeding term of the court, but that for the reasons here-inbefore stated, he could not get -such a trial at the time the case was to be heard.\\nThe defendant relies upon information contained in newspaper articles and the oral statement regarding the searching of courtroom spectators to sustain his motion for a continuance, and also relies upon statements alleged to have been made by the court, subsequently quoted in newspaper articles for purposes other than a continuance. There is no further showing in the record as to what transpired upon the prior days of the term of court when the cases of the four alleged accomplices were disposed of. The statement attributed to the Circuit Judge by the Logan Banner article of June 8, heretofore quoted, wherein he was alleged to have stated that it was imperative that the cases arising out of the murder of Sarah Reed be completed at that term, and that he was calling a special grand jury to offer the man a speedy trial, as he believed that a man should have a trial as soon as possible, can not be considered upon defendant's Assignment of Error No. 1, but only upon the question of whether or not a sufficient showing had been made for a continuance.\\nOn June 8, when the special grand jury was convened and instructed by the court, there was no reason for the defendant or his counsel to be present, and the court's charge to the jury, if thereafter reduced to writing, is not a part of this record. It is presumed that if the statements attributed to the court were made to the special grand jury at that time, that the venire of petit jurors then in attendance, and from which a panel was later selected 'to try the defendant, was excluded from the courtroom and did not hear the remarks attributed to the court. It is not necessary to speculate upon the view that this Court might take upon this assignment of error if the record disclosed that the alleged statements of the court to the special grand jury were made in the presence of the venire of petit jurors. The record is silent upon that matter. Furthermore, the record does not disclose the interrogation of the panel of petit jurors upon their voir dire. Again, we can only presume that a panel of qualified jurors was selected, and that counsel for the defendant had an. opportunity at that time to inquire as to what effect, if any, the newspaper articles and prior proceedings involving the other alleged accomplices of the defendant, had upon the prospective jurors.\\n\\\"It is a well settled rule, and one already stated previously in this title, that a motion for a continuance is addressed to the sound, but not arbitrary, discretion of the court under all the circumstances of the case, and that the appellate court will not reverse a judgment or decree because of the action of the lower court on such motion, unless the action is plainly erroneous. Abuse of discretion and prejudice to the complaining party are essential to reversal. But the appellate court will review and reverse the action of an inferior court, if, in the exercise of its discretion, it has harshly or unjustly refused a continuance, especially where there is nothing in the circumstances to warrant the conclusion that the real purpose in moving for a continuance is to delay or evade and not to prepare for it.\\\" 4 M. J., Continuances, \\u00a7 50. State v. Lucas, 129 W. Va. 324, 40 S. E. 2d. 817, and State v. Whitecotton, 101 W. Va. 492, 133 S. E. 106. Also, in State v. Alie, 82 W. Va. 601, 96 S. E. 1011, this Court said: \\\" A motion for a continuance is always addressed to the sound discretion of the court. Of course this discretion is one not to be abused, but before this court will reverse a judgment because of the refusal to grant a continuance it must affirmatively appear that the party seeking it was injured thereby. \\\" The defendant has not shown by this record that the trial court abused its discretion in denying the motion for a continuance, and, therefore, its ruling upon that point will not be disturbed.\\nIn the giving of State's Instruction No. 2 by the court, the jury was not erroneously instructed. The instruction reads as follows:\\n\\\"The Court instructs the jury that an accessory before the fact is one who is absent at the time of the actual perpetration of the crime, but who procures, counsels, commands, incites or abets another to commit the crime.\\n\\\"And, you are further instructed that the accessory need not necessarily have intended the particular crime committed by the principal; an accessory is liable for any criminal act which, in the ordinary course of things, was the natural or probable consequence of the crime that he procured, advised or commanded, although such consequence may not have been intended by him.\\\"\\nThis instruction clearly and properly defines an accessory before the fact. The defendant objects to the instruction principally because of its use of the word \\\"abet\\\" contending that, the word indicates that the defendant was present at the commission of the alleged crime, and, therefore, was a principal. The word is defined in Black's Law Dictionary, Third Edition, as follows: \\\"To encourage, incite, or set another on to commit a crime. This word is always applied to aiding the commission of a crime. To abet another to commit a murder is to command, procure, or counsel him to commit it,\\nThe defendant contends that there is a fatal variance between the indictment and the evidence introduced by the State to sustain it because each of the principals who testified at the trial denied that he fired the shot which caused the death of Sarah Reed, and no one testified as to who fired such shot. The evidence shows that Sarah Reed fired one shot through a latched screen door, and that thereafter approximately eleven shots were fired by the four members named as principals in this indictment, and it is not denied by the principals that several shots were fired by them. The defendant does not contend that there was not sufficient evidence offered by the State to support the verdict, and there is no assignment of, error upon that point. There was- sufficient evidence presented by the State from which the jury could have believed, beyond all reasonable doubt, that, pursuant to a plan conceived by the defendant, he and the other five men traveled to Logan on the night of the crime for the express purpose of burglarizing the Beatty apartment; that the party stopped a short distance from Logan and the defendant, using one of the two cars in which they were traveling, made a reconnaissance to ascertain if all was clear at the scene of the subsequent crime, and upon returning, reported such to be; that the defendant remained at that place while the other five members of the group proceeded to the Beatty apartment where the robbery took place, and Mrs. Reed was killed; and that these five men returned to the place where the defendant waited, and all traveling in two cars returned to the Loveless Hotel in Charleston where the fruits of the robbery, amounting to six hundred dollars, were distributed between the six persons.\\nWhile it is true that there can be no accessory to a crime not committed by a principal, as this Court held in State v. Lilly, 47 W. Va. 496, 35 S. E. 837, this evidence clearly, and beyond all reasonable doubt, establishes that one of the four principals fired the shot which killed Sarah Reed, and, inasmuch as her murder occurred during the commission of and resulting from the robbery, the principal participants were equally guilty of murder in the first degree, and the evidence fully supported the charge against the defendant of being an accessory before the fact of murder. The State having proved that the death of the deceased resulted from a shot fired by one of the principals, it was immaterial which of the four actually fired the fatal shot.\\nThere is no merit to the contention that the verdict of the jury mandatorily required the imposition of a more severe penalty upon the defendant as an accessory than was imposed upon the actual perpetrators of the homicide. It is true that four of the alleged accomplices of the crime,whose cases were disposed of prior to that of the defendant, received sentences of life imprisonment, while the defendant was sentenced to be executed.\\nSyllabus Point 3 in People v. McCaudle, 14 N. E. 2d., 683, relied upon by the defendant to sustain his position upon this assignment of error, reads as follows: \\\"An accessory.before the fact can be indicted and convicted as a principal but penalty assessed against such accessory can in no event be greater than punishment that could be inflicted upon principal.\\\" That case has no application to the present one, inasmuch as the principals could have been punished by execution. The test is not whether the principals received a more severe penalty than the accessory, but whether or not the former could, under the law, have received a penalty equal to that imposed upon the accessory.\\nChapter 61, Article 11, Section 6 of the West Virginia Code, provides for the punishment of an accessory before the fact as follows: \\\"In the case of every felony, every principal in the second degree, and every accessory before the fact, shall be punishable as if he were the principal in the first degree. \\\"\\nUpon his final assignment of error, the defendant maintains that it was the mandatory duty of the court to instruct the jury that, unless they recommended in their verdict that the accused should be confined in the penitentiary, in the event it found him guilty of murder in the first degree, it would be mandatory upon the court to impose a sentence of death. It is not contended by the defendant that the court erred in instructing the jury upon the evidence adduced that it could return only one of two verdicts, murder in the first degree or not guilty.\\nChapter 61, Article 2, Section 2 of the Code, provides: \\\"Murder of the first degree shall be punished with death, except as provided in article three, chapter sixty-two of this Code.\\\" Chapter 62, Article 3, Section 15, to which reference is made, provides for the verdict and sentencing in a murder case as follows: \\\"If a person indicted for murder be found by the jury guilty thereof, they shall in their verdict find whether he is guilty of murder of the first or second degree. If they find him guilty of murder of the first degree, they may, in their discretion, further find that he be punished by confinement in the penitentiary. If such further finding be not added to their verdict, the accused shall be punished with death, but,,if added, he shall be punished by confinement in the penitentiary during his life. If the accused plead guilty of murder of the first degree, sentence of death or confinement in the penitentiary for life shall be pronounced upon him by the court, as may seem right, in the same manner and with like effect as if he had been found guilty by the verdict of a jury.\\\"\\nAt common law, there were no degrees of murder, and all murder was punishable by death. It is only by statute that murder has been divided, as it has in this State into murder in the first degree and murder in the second degree. In State v. Cobbs, 40 W. Va. 718, 22 S. E. 310, Syl. Pt. 1, this Court held that: \\\"It is not error for a court to omit to instruct a jury that it may punish murder in the first degree with either death or confinement in the penitentiary, unless asked to do so.\\\" The opinion in that case was written by Judge Brannon, and the Cobbs case was affirmed on this point in State v. Beatty, 51 W. Va. 232, 41 S. E. 434, in an opinion written by Judge Poffenbarger. 'However, in State v. Chaney, 117 W. Va. 605, 186 S. E. 607, the rulings in the Cobbs and Beatty c\\u00e1ses were specifically overruled. The only syllabus point of the opinion is as follows: \\\"It is the duty of the trial court, in prosecutions for murder, to inform the jury, without request, of their authority under Code (1931), 62-3-15, to determine whether the accused, if found guilty of murder in the first degree, shall be .punished by death or confinement in the penitentiary for life. The rulings in State v. Cobbs, 40 W. Va. 718, 22 S. E. 310, and State v. Beatty, 51 W. Va. 231, 41 S. E. 434, in so far as they may be in conflict with this decision, are overruled.\\\" The decision in the Chaney case was reaffirmed in State v. Goins, 120 W. Va. 605, 199 S. E. 873, in which a conviction of murder in the first degree, without a recommendation that the defendant be punished by confinement in the penitentiary, was set aside, and the Court in its opinion said: \\\"Concerning the assignment of the failure of the trial court to instruct the jury that it was. its duty to find, in the event of a verdict of guilty of murder in the first degree, whether the accused should be hanged or sentenced to the penitentiary for life, there can be no question but that this constitutes reversible error. Without suggestion or request, this is the trial court's duty. This Court, in State v. Chaney, 117 W. Va. 605, 186 S. E. 607, emphatically so held. It does not appear from the record that the trial court had its attention directed to this duty, but that fact does not correct the error.\\\"\\nThe attorney general, on behalf of the State, contends that the trial court did properly instruct the jury in accordance with the decisions in the Chaney and Goins cases in the giving of State's Instruction No. 1 which is as follows:\\n\\\"The Court instructs the jury that murder by poison, lying in wait, imprisonment, starving, or by any wilful, deliberate and premeditated killing, or killing in the commission of, or in the attempt to commit arson, rape, robbery, or burglary, is murder in the first degree.\\n\\\"The Court further instructs the jury that murder in the first degree is punishable by death or confinement in the penitentiary of this State for life, as the jury shall find in their verdict.\\\"\\nThis instruction follows the statute heretofore quoted, but only in a general way. The instruction that is usually given in homicide cases where, under the indictment a verdict of murder in the first degree may be returned, is set forth in Lee, The Criminal Trial in the Virginias, Second Edition, Section 1342, which reads in part as follows: \\\" If you should find the defendant guilty of murder in the first degree you may, in your discretion, further find that he be punished by confinement in the penitentiary, and if such finding be not added to your verdict the judgment rendered thereon by the Court would be that the prisoner be punished with death, and if such finding is added, the judgment rendered thereon by the Court would be that he be confined in the penitentiary during his life. \\\" This instruction, or one similar to it, following the provisions of the statute, is certainly sufficient. The principal issue confronting this Court in reviewing this case is to determine whether State's Instruction No. 1 sufficiently informed the jury concerning the effect of the verdict they should return if they found the defendant guilty of murder in the first degree, inasmuch as it finds no reversible error elsewhere in this record.\\nThe verdict of the jury reads as follows: \\\"We, the jury, agree and find the defendant Melvin Loveless guilty of Accessory before the fact to Murder in the first degree as charged in the within indictment.\\\" The jury by their verdict found neither that the defendant should be punished by death nor by confinement in the penitentiary. It is quite true, under the provisions of Code, 62-3-15, with no further finding added to such a verdict, that the punishment shall be death. However, the jury are the triers of the facts, and there is no presumption that they are familiar with the law. The law applicable to the case must come from the trial court in the form of instructions. It may be that counsel for the State and defendant in their arguments to the jury explained in detail the effect of their returning the verdict which they did, and the manner by which they could have returned a verdict which would have resulted in life imprisonment for the defendant. The arguments of counsel are not contained in this record, and, even if they were, and if they did show such explanation it would be of no consequence, inasmuch as the jury looks not to counsel for guidance as to the law of the case, but to the trial court. They may disregard all-that is said by counsel in argument, but they are not at liberty to disregard the law of the case as outlined to them in the court's instructions. If the jury had responded to State's Instruction No. 1 telling them that \\\"murder in the first degree is punishable -by death or confinement in the penitentiary of this State for life, as the jury shall find in their verdict.\\\", it would have been necessary for them to add to the verdict a further provision that the defendant be punished either by death or confinement in the penitentiary. This jury was not instructed that if they found the defendant guilty of murder in the first degree and remained silent thereafter that by virtue of the law of this State it became the mandatory duty of the trial court to sentence the defendant to death by electrocution. Under the provisions of Code, 61-2-15, the penalty for rape, upon a verdict of a jury without recommendation for mercy, does not impose upon the trial court the mandatory duty of sentencing the prisoner to death, but in such case discretion is vested in it, not the jury, as to which of the two penalties, life imprisonment or death, shall be imposed. The exact opposite is true upon a verdict of murder in the first degree. If the effect of the jury's verdict is to require the court to impose the death penalty, then the jury should be so informed. We are of the opinion that State's Instruction No. 1 did not--inform the jury with sufficient clarity as to the legal significance of such a verdict as it later returned. If it could be said that the trial court discharged the duty imposed upon it by the decisions in the Chaney and Goins cases, supra, by the giving of this instruction, then the verdict is still not responsive for it fixes the penalty at neither death nor life imprisonment, as the incomplete and misleading instruction informed them they were required to do. The verdict can be validated only by invoking the pertinent provisions of Code, 62-3-15, the import of which was never revealed to the jury by any instruction that was given by the court. A verdict whose solemnity requires the taking of the life of a human being should not be predicated upon presumption or probability that such a result was contemplated by the jury which returned it.\\nIt is the mandatory duty of a trial court when a case is submitted to a jury, in which a verdict of murder in the first degree may be returned, to instruct the jury that in the event such a verdict is returned that they may further find that the accused be punished by confinement in the penitentiary, in which case the defendant will be sentenced to life imprisonment, and that in the absence of such finding, a sentence of death must be pronounced by the court. It was reversible error for the trial court in this case not to give to the jury, without request, such an instruction.\\nThe judgment of the Circuit Court of Logan County is reversed, the verdict of the jury set aside, and the case remanded for a new trial.\\nReversed and remanded.\"}"
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+"{\"id\": \"8582476\", \"name\": \"Hall v. McLuckey, et al.\", \"name_abbreviation\": \"Hall v. McLuckey\", \"decision_date\": \"1951-05-29\", \"docket_number\": \"CC 779\", \"first_page\": \"864\", \"last_page\": \"877\", \"citations\": \"135 W. Va. 864\", \"volume\": \"135\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T02:42:59.078200+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hall v. McLuckey, et al.\", \"head_matter\": \"Hall v. McLuckey, et al.\\n(CC 779)\\nSubmitted April 10, 1951.\\nDecided May 29, 1951.\\nScherer, Bowers & File and Clay S. Crouse, for plaintiff.\\nJ. W. Maxwell, Kermit A. Locke, for defendants.\", \"word_count\": \"3965\", \"char_count\": \"23897\", \"text\": \"Lovins, Judge:\\nThe Circuit Court of Raleigh County, West Virginia, sustained demurrers to plaintiff's amended bill of complaint, and certified the rulings made thereon to this Court.\\nThe original bill of complaint in this suit by Hall, plaintiff, against McLuckey and Beckley Music & Electric Co., a corporation, hereinafter designated \\\"McLuckey\\\" and \\\"company\\\", respectively, prayed for an injunction restraining McLuckey from managing the business of the company and from applying the funds of the company to his own use, the appointment of a special receiver to operate the business, an audit of the business of the company, certain items of discovery, a decretal judgment against McLuckey for any sum due from him, dissolution of the company, and sale of its assets.\\nA final decree entered by the Raleigh County Circuit Court granting the greater portion of the relief sought in the original bill of complaint has heretofore been before this Court upon appeal. The decree of the trial chancellor was reversed, and the case was remanded with directions to sustain the demurrer to the bill of complaint with leave to plaintiff to amend the bill. This Court held that although plaintiff had a right to maintain a suit for the appointment of a receiver of the assets of the company and its ultimate dissolution under Code, 31-1-81, 82, the allegations of the original bill of complaint were insufficient to warrant the drastic relief prayed for in the bill; that Cecil W. Lovell and Edith Gamble Basham, hereinafter designated \\\"Lovell\\\" and \\\"Basham\\\", respectively, allegedly holding shares of stock in the company, issued to them without authority, were necessary parties to the suit; and that there was a fatal omission on the part of plaintiff to aver that he had applied to the stockholders or the board of directors of the company for relief prior to the commencement of suit, or to show that such prior application would have been useless. Hall v. McLuckey, et al., 134 W. Va. 595, 60 S.E. 2d 280.\\nUpon remand to the trial court, plaintiff filed an amended bill of complaint. It is unnecessary for the purposes of this opinion to restate in detail the proceedings formerly reviewed. Accordingly, our attention and discussion are principally concerned with the record as developed since the filing of the amended bill.\\nThe original bill of complaint is made a part of the amended bill by reference. In addition to the relief orig inally sought, for which there is a renewed prayer, the amended bill prays that Lovell and Basham be made defendants to the amended bill; that Lovell and Basham be permitted to assign their stock to the company and the company be required to reimburse them to the extent of their investments therein; and that McLuckey be required to assign to the company sixty shares of stock allegedly issued to him without proper authority and contrary to the parol agreement as to ownership.\\nPlaintiff bases his claim for relief upon allegations of the violation by McLuckey of an oral agreement entered into between them prior to incorporation of the company, providing for equal and exclusive stock ownership, a $300.00 monthly s\\u00e1lary for McLuckey as manager of the business, an equal sharing of the net profits of the business; and upon acts of mismanagement consisting of the application of the property and funds of the company to the personal use of McLuckey, and in his failure to provide for the holding of meetings of the stockholders and directors at the times and in the manner required by the by-laws of the company and- the laws of the State of West Virginia.\\nPlaintiff alleges that although the by-laws, the pertinent provisions of which he sets forth in his bill, require annual meetings of the stockholders and directors on the second Wednesday of September in each year, none have been held since the first stockholders' meeting on October 19, 1944, an organizational meeting at which the plaintiff, defendant and L. L. Scherer were elected directors; that-although notice of the regular monthly meetings of the board of directors is not required, notice is not dispensed with in regard to special meetings of the directors. Plaintiff alleges that he has not been notified of any meetings of the directors or the stockholders; that he had no actual knowledge of the holding of such meetings; that he had not waived notice thereof; and that he had not given anyone his proxy.\\nPlaintiff avers that the minutes of pretended meetings, which he was permitted to inspect, show that several of such meetings of the stockholders and directors have taken place. The minutes of such a meeting of stockholders held on July 6, 1945, attended only by McLuckey and Lovell, recited that L. L. Scherer had defaulted in the payment of Stock Certificate No. 4, and that he would not fulfill the duties of secretary. C. W. Lovell was asked to assume the duties of secretary and treasurer at a salary commensurate with the work. McLuckey's salary as manager was set at $416.67 until an increase in salary was warranted by increased business. There is no allegation as to whether McLuckey and Lovell abstained from voting on the matters in which they had a personal interest. Minutes of one allegedly spurious meeting of the board of directors on July 8, 1946, do not show who was in attendance, but they are signed by McLuckey as president and Lovell as secretary and treasurer. At a similar meeting of the board on July 8, 1947, the minutes being signed by Lovell and McLuckey, Mc-Luckey was commended for his service and his annual salary was increased to $6200. Attendance at the last mentioned meeting was not shown and plaintiff does not allege whether McLuckey abstained from voting on the action taken by the directors. At a pretended meeting on July 5, 1948, the board of directors purportedly increased defendant McLuckey's annual salary to $10,000, contingent on an anticipated gross business of $200,000 for the ensuing year. A minimum annual salary of $300.00 was voted for the acting secretary and treasurer. It is not alleged whether McLuckey and Lovell participated in this action.\\nPlaintiff charges that all of the meetings, hereinabove referred to, were improperly held because of lack of notice to him, and that the actions of the Board of Directors were invalid for the further reason that Lovell participated therein as a director when he had not been properly elected to that office, the plaintiff not having been legally notified of the stockholders' meeting at which such election occurred, and that there was an insufficient number of directors for legitimate action by the board, the by-laws requiring a minimum of three directors. In this connection, plaintiff alleges that L. L. Scherer had not paid for the stock certificate which was issued to him, the certificate had not been delivered to him, and that therefore he had never been a stockholder in the company, which is a qualification set by the by-laws for membership on the board of directors. Thus plaintiff contends that he and McLuckey are the only lawful directors of the company.\\nPlaintiff alleges that the stock certificate book of the defendant company shows several issues of stock certificates which he charges are illegal for the reasons that authority for their issuance was not given at a proper meeting of the board of directors and that he had been denied his preemptive right to purchase such issues. Such certificates are: Certificate #1, for 10 shares, issued to Lovell; Certificate #2, for 10 shares, issued to Basham; Certificate #3, for 30 shares, issued to McLuckey; Certificate #4, for 10 shares, issued to L. L. Scherer; and Certificate #7, for 30 shares, issued to McLuckey. Plaintiff contends that a certificate for 104 shares, issued to him, and a certificate for 104 shares, issued to McLuckey, are the only lawful issues of stock, in view of the parol agreement with reference to equal and exclusive stock ownership, and that in violation of such agreement, defendant now holds more than 50% of the outstanding common stock of the company, possessing 164 shares out of 288 shares allegedly outstanding.\\nThe plaintiff, upon information and belief, avers a number of transactions, which he contends constitute mismanagement by McLuckey, namely: That during the month of October, 1944, McLuckey borrowed from A. J. Adams the sum of $3,000, and that although such loan was McLuckey's personal obligation and was repaid by him in June, 1949, the interest thereon was paid by the delivery to Adams of certain merchandise, including a dishwasher, radio, disposall, and other goods; that during the Christmas season, 1948, the company delivered to Samuel Thompson of Beckley, West Virginia, a Magna-vox Radio-Phonograph of the value of approximately $875.00, and that payment for such merchandise was made by Thompson to McLuckey personally, none of the purchase money going to the company; that in 1949, several kitchen cabinets belonging to the company were delivered to the residence of J. M. Coram, a physician, and that McLuckey received payment from the physician for the same either in cash or as a credit against Mc-Luckey's personal account owing the physician, the company receiving nothing in payment therefor; that in September, 1948, the sum of approximately $318.06 was paid out of the company's funds to the Geiger Upholstery for certain materials furnished and work performed for McLuckey; that during the months of January and February, 1949, certain electrical appliances were installed in the kitchen of Charles Levine, Jr., payment for which, in the amount of $1200.00, was made to McLuckey personally and not to the company; that in July, 1948, the company purchased two radiators from the Bluefield Supply Company for the sum of $131.58, which were installed in the home of McLuckey; that on various other occasions since 1944 certain articles of merchandise were delivered and installed in the home of McLuckey; that in the latter part of 1948, McLuckey was paid a bonus of $1200.00 out of the company's funds without proper authority; and that on other occasions similar bonuses have been paid to McLuckey without proper authority. Plaintiff charges that all such acts by the company, through McLuckey as its president and general manager, herein-above stated, have unlawfully reduced capital assets of the company.\\nPlaintiff alleges upon information and belief that on several occasions and in particular on one occasion in 1948 or 1949, McLuckey cursed prospective customers and unlawfully assaulted one or more of such customers without justification and in a manner that would incur civil liability upon the company.\\nPlaintiff avers that it would have been useless for him to apply to the shareholders of the' company for relief from the wrongs complained of since McLuckey holds a majority of the outstanding stock, and that he could not appeal to the board of directors because only he and McLuckey are lawfully elected directors.\\nMcLuckey and the company filed a joint and several demurrer to the amended and supplemental bill of complaint, on the grounds that it does not appear that the alleged misappropriations were without the apparent and actual scope of authority of McLuckey as manager of the corporation; that it is not alleged that the claimed acts of misappropriation were illegal transactions and were not done by the general manager in promotion of the general welfare of the company; that the bill is multifarious for the reason that it seeks in the same suit to have a partnership settlement between plaintiff and Mc-Luckey in matters between themselves as individuals, with which the company has no interest, and at the same time seeks a dissolution of the company; that the alleged oral contract between the plaintiff and McLuckey cannot be pleaded or sustained because it is in conflict with the articles of incorporation; and that the allegations in the bill are insufficient to warrant the discovery prayed for.\\nLovell and Basham filed their joint and several demurrer to the amended and supplemental bill of complaint on the grounds that the bill of complaint involves them as stockholders in expensive litigation to adjudicate a personal controversy between plaintiff and McLuckey; that the oral agreement between plaintiff and McLuckey is in conflict with the corporate charter and therefore cannot be enforced in this suit to the prejudice of the demurrants; that the bill of complaint admits the issuance to the demurrants of their stock certificates and therefore the plaintiff and the company are estopped from denying the ownership thereof; that such bill wholly fails to set up any reason for dissolution of the corporation, there being a mere disagreement between stockholders; and that it does not appear from the bill that the corporation is insolvent and not exercising its franchise in a perfectly lawful manner without any damage to the plaintiff.\\nAn additional demurrer of McLuckey and the company was filed, charging that the amended bill fails to disclose any breach or denial of any preemptive right existing in favor of the plaintiff to purchase the stock of the company; and that the bill fails to show an exhaustion of remedies available to the plaintiff through action by the company's board of directors.\\nThe trial court sustained the demurrers to the amended bill of complaint, with leave to further amend the bill, and directed that the case be certified to this Court. The trial chancellor set forth his rulings as follows: (1) that it was questionable whether the total amount alleged to have been misappropriated constituted a material part of the funds or property of the defendant corporation; (2) that it was not sufficiently factually alleged in the plaintiff's amended and supplemental bill of complaint that proper application by the plaintiff to the stockholders or board of directors of the defendant corporation, for relief from the acts complained of, would have been useless; (3) that the other grounds of demurrer are not tenable.\\nThe question of whether the total amount alleged to have been misappropriated is a material part of funds or property of the company is not determinative of the questions presented on this certificate. Plaintiff charges the misappropriation of the company's assets of the value of approximately $2500.00. If these allegations are sustained by proof, such acts of misappropriation would constitute mismanagement of the company and would justify the relief authorized by Code, 31-1-81, 82, under which the principal relief is sought herein. Moreover, we bear in mind that on demurrer facts well pleaded are treated as true.\\nThe trial court erred in holding that facts are not sufficiently alleged in the amended bill to show that appli cation by plaintiff to a stockholders' meeting or the board of directors of the company for relief prior to the commencement of the suit would have been useless. The plaintiff is not required to seek redress through the regularly constituted agents and officers of a corporation in circumstances disclosed by the amended bill of complaint. Crumlish v. Railroad Co., 28 W. Va. 623; Rathbone v. Gas Co., 31 W. Va. 798, 8 S.E. 570; Moore v. Railway Co., 80 W. Va. 653, 93 S.E. 762. The amended bill charges that plaintiff and McLuckey are the only lawfully elected directors of the company, and that the by-laws prohibit a director from voting on any matter in which he is interested. If the plaintiff and McLuckey are the only lawfully elected directors of the company, it is a foregone conclusion that such situation would result in a tie vote in the board on the question'of granting plaintiff relief. Hence plaintiff is not required to apply to the board of directors for relief. It is also alleged that it would be useless to apply to the stockholders for relief since McLuckey owns a majority of the outstanding stock of the company. If the view is taken that the 80 shares of common stock were illegally issued, 'then Hall and Mc-Luckey would own an equal number of shares of the common stock of the company, and an application by plaintiff to a stockholders' meeting, after the 80 shares of illegal stock have been eliminated, would likewise result in a stalemate. It follows, therefore, that the allegations of the amended bill of complaint satisfy the requirements discussed in the opinion of this Court when the case was here upon the former appeal. Hall v. McLuckey, supra.\\nIn determining whether the amended bill is bad for-mullifariousness, there is no general and inflexible rule by which we can be governed. In cases involving that question, decisions have largely rested upon the circumstances of each particular case. Miller's Hogg's Equity Procedure, Third Edition, Sec. 156; Park v. Adams, 114 W. Va. 730, 173 S.E. 785; Scott v. Realty Co., 106 W.Va. 304, 145 S.E. 586; Crummett v. Crummett, 102 W.Va. 151, 135 S.E. 16; Boom & Lumber Co. v. Reger, 90 W.Va. 252, 110 S.E. 709; Arnold v. Knapp, 75 W.Va. 804, 84 S.E. 895; Depue v. Miller, 65 W.Va. 120, 64 S.E. 740; Sult v. Hochstetter Oil Co., 63 W.Va. 317, 61 S.E. 307. \\\"Whether a bill in equity is multifarious often depends on the particular circumstances of the case, rather than upon any fixed rule of procedure; and when the subject matter is single and all the parties directly interested in it, the objection for multifariousness will be overruled, though the bill asserts two or more grounds of relief and tends to raise two or more issues, affecting the parties in divers ways.\\\" Suit v. Hochstetter Oil Co., supra; Ross' Admx. v. Ross, 72 W.Va. 640, 78 S.E. 789; Coal & Coke Co. v. O'Neal, 82 W.Va. 186, 95 S.E. 822. If the joinder of causes for relief does not result in injury to any of the parties thereto, so as to make it unjust for the suit to be maintained in such form, the bill is not bad for multifariousness. Boom & Lumber Co. v. Reger, supra. Wherever possible, the cost and delay attendant upon a multiplicity of suits will be avoided by permitting the joinder of demands for relief in one suit. Park v. Adams, supra.\\nApplying the foregoing principles to the amended bill in the case at bar, we are of the opinion that the bill should not be characterized as multifarious. It is true that the grievances which plaintiff asserts arise in large measure from the parol agreement which allegedly existed between Hall and McLuckey prior to incorporation of the company, the terms of which contract do not appear in the articles of incorporation. But the circumstances surrounding the relationship of the plaintiff and McLuckey are so closely interwoven with the affairs of the company, it is impossible to exclude such circumstances from consideration in determining the right to the relief sought herein. Plaintiff and McLuckey are the principal shareholders and are directors of the company. McLuckey, as president and manager, has been in complete control of the company's activities; If the plaintiff sustains by proof his assertion that Lovell, who holds ten shares of the company's stock, was illegally elected to the board of directors, the only two lawfully constituted directors are plaintiff and McLuckey. Moreover, if the allegations of an irregular issue of stock to Basham and Lovell are established by proof, ownership of the corporation's stock will be reduced to the plaintiff and McLuckey. A determination, therefore, of any rights plaintiff may have under the parol agreement relating to the ownership and management of the company can be appropriately and conveniently made in the present suit.\\nThe contention that the prayer for-cancellation of the stock of Lovell and Basham and the allegedly unlawful issue of stock to McLuckey makes the bill multifarious is also untenable. Suits for rescission and cancellation of stock present an independent ground for equity jurisdiction. Kimmell v. Twigg, 88 W.Va. 531, 107 S.E. 206; Cox v. Coal & Oil Investment Co., 61 W.Va. 291, 56 S.E. 494. But in the circumstances presented in this case it is appropriate if not necessary to dispose of that question in this' suit. Any adjustment of the ownership of the corporate stock decreed by the trial court would vitally concern a special receiver if one should be appointed, and, in the event of dissolution of the .company, would be determinative of the rights of the legal stockholders.\\nWe conclude that the several grounds for relief, though distinct, are not of such an independent nature as to render a bill joining them in one suit bad on demurrer.\\nThe allegations of the amended bill with reference to mismanagement and misappropriation are sufficient to support the prayer for discovery. It has been shown by these allegations that the evidence to be obtained thereby is material and essential to the main purpose of the bill. \\\"Bills for relief may also contain prayers for the discovery of facts which are essential to the relief prayed for in the bill.\\\" Wick v. Dawson, 42 W.Va. 43, 24 S.E. 587. The contention that discovery is not warranted by the allegations of the bill is untenable.\\nThe doctrine of ostensible authority cannot be asserted in the instant case as a ground of demurrer. Such doctrine is sometimes invoked in transactions between an officer of a corporation and an innocent third party. 13 Am. Jur., Corporations, Sec. 890. The main controversy in the present suit, however, is between two stockholders and directors as well as the corporation. 'As between these parties, such principle is inapplicable. Upon further development of this case, by the introduction of evidence, the principle of apparent authority may be applicable to the sale of stock to Lovell and Basham. But its applicability will depend upon facts which must be established by proof. It was not necessary that plaintiff in his bill negative the theory of apparent authority' to do the acts which he alleges were done without authority.\\nThe plaintiff is not estopped by acquiescence and laches, from asserting the invalidity of the stock issue to Basham and Lovell. The burden of proving estoppel rests on Lovell and Basham, and it must appear affirmatively by clear, precise, and unequivocal evidence. Campbell, et al. v. Lynch, et al., 88 W.Va. 209, 106 S.E. 869; Water Co. v. Browning, 53 W.Va. 436, 44 S.E. 267. \\\"Every estoppel must be certain to every intent and is not to be taken by argument or inference; and the facts upon which it is based must be clearly proven and not capable of bearing any other construction.\\\" Campbell, et al. v. Lynch, et al., supra.\\nThe allegations with reference to the denial of plaintiff's preemptive right to purchase additional issues of stock are sufficient. Plaintiff avers that 80 shares of stock of the company were issued without his knowledge or authority. Failure by plaintiff to make demand or protest, in such circumstances, would not be a waiver of the right. Riverside & D. Cotton Mills Co. v. Thomas Branch & Co. (Va.), 137 S.E. 620. See Annotations, 52 A.L.R. 220.\\nThe acts which the plaintiff contends were instances of mismanagement are alleged upon information and belief. But we think that the amended bill, when viewed as a whole, meets the req\\u00fairement laid down by the decisions of this Court that a bill of complaint, if sufficient to apprise a defendant of what he is called upon to meet in defense of the case, suffices. Railroad Co. v. Traction Co., 56 W.Va. 18, 48 S.E. 746; Zell Guano Co. v. Heatherly, 38 W.Va. 409, 18 S.E. 611.\\nThe decree of the Circuit Court of Raleigh County, sustaining the demurrers, is reversed and.the case remanded to that co\\u00fart with directions to overrule the demurrers to the amended bill of complaint.\\nReversed and remanded with directions.\"}"
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+"{\"id\": \"8582559\", \"name\": \"State of West Virginia v. Morris S. Wender\", \"name_abbreviation\": \"State v. Wender\", \"decision_date\": \"1965-04-13\", \"docket_number\": \"No. 12347\", \"first_page\": \"413\", \"last_page\": \"420\", \"citations\": \"149 W. Va. 413\", \"volume\": \"149\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T01:13:14.026466+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State of West Virginia v. Morris S. Wender\", \"head_matter\": \"State of West Virginia v. Morris S. Wender\\n(No. 12347)\\nSubmitted January 19, 1965.\\nDecided April 13, 1965.\\nC. Donald Robertson, Attorney General, William F. Carroll, Assistant Attorney General, for plaintiff in error.\\nPat R. Hamilton, for defendant in error.\", \"word_count\": \"2270\", \"char_count\": \"13295\", \"text\": \"Browning, President:\\nMorris S. Wender, the defendant, was arrested on five several warrants issued by a justice of the peace of Fayette County, West Virginia, on April 22, 1963, charging him with the sale and delivery of cigarettes at retail for a price below the minimum established by Regulation CSA-2 promulgated by the Tax Commissioner of the State of West Virginia. The defendant entered pleas of not guilty to each complaint but was found guilty by the justice and fined one hundred dollars and costs on each offense. An appeal was taken to the Circuit Court of Fayette County and, on appeal, the defendant demurred to the charges against him on the ground that Code, 47-13-13, as amended, \\\"The Cigarette Sales Act\\\", on which the charges were based, is unconstitutional. The demurrer was sustained by the Circuit Court of Fayette County and,' on application of the state, this Court granted a writ of error and super-sedeas on June 22, 1964.\\nChapter 10, Acts of the Legislature, Regular Session, 1961 (Code, 47-13, as amended), created what is known as \\\"The Cigarette Sales Act\\\". Section 3 thereof provides:\\n\\\"It shall be unlawful and a violation of this article:\\n\\\" (a) For any retailer or wholesaler with intent to injure competitors or destroy or substantially lessen competition:\\n\\\" (1) To advertise, offer to sell, or sell, at retail or wholesale, cigarettes at less than cost to such a retailer or wholesaler, as the case may be.\\nThe section then provides that any violation of the above is a misdemeanor i punishable by a fine of not more than five hundred dollars for each such offense. Section 2, subsection (11) (a) provides:\\n\\\"The term 'cost to the retailer' shall mean the 'basic cost of cigarettes' to the retailer plus the 'cost of doing business by the retailer', as evidenced by the standards and methods of accounting regularly employed by him in his allocation of overhead costs and expenses, paid or incurred, and must include, without limitation, labor (including salaries of executives and officers), rent, depreciation, selling costs, maintenance of equipment, delivery costs, all types of licenses, taxes, insurance and advertising: Provided, That any retailer who, in connection with the retailer's purchase, receives not only the discounts ordinarily allowed upon purchases by a wholesaler but also shall, in determining 'costs to the retailer', pursuant to this subsection, add the 'cost of doing business by the wholesaler', as defined in section two, subpara-graph ten of this section, to the 'basic cost of cigarettes' to said retailer, as well as the 'cost of doing business by the retailer'.\\n\\\" (b) In the absence of the filing with the commissioner of satisfactory proof of a lesser or higher cost of doing business by the retailer making the sale, the 'cost of doing business by the retailer' shall be presumed to be eight per centum of the 'basic cost of cigarettes' to the retailer.\\n\\\" (c) In the absence of the filing with the commissioner of satisfactory proof of a lesser or higher cost of doing business, the 'cost of doing business by the retailer', who, in connection with the retailer's purchase, receives not only the discounts ordinarily allowed upon purchases by a retailer but also, in whole or in part, the discounts ordinarily allowed upon purchases by a wholesaler, shall be presumed to be ten per centum of the sum of the 'basic cost of cigarettes' and the 'cost of doing business by the wholesaler'.\\\"\\nSection 2, subsection (9) defines \\\"Basic cost of cigarettes\\\" as the invoice cost of the cigarettes to the retailer or the replacement cost whichever is lower, less all trade discounts except the customary discounts for cash plus the value of any tax stamps if not included by the manufacturer in his list price.\\nStatutes such as the one under consideration have been enacted in a majority of the states, beginning in South Carolina in 1902. The bulk of them, however, apparently stemmed from the depression of the early 1930's, were given impetus by the Robinson-Patman Act of 1936, 15 U.S.C.A., \\u00a7 13, et seq., and were intended to alleviate the situation existing in many fields of competition by eliminating the tendency of certain individuals and corporations to sell below cost in order to force their competitors out of business. The constitutionality of these statutes has been tested many times, the majority of the courts upholding their validity under the police power of the state and, concomitantly, that such statutes are not violative of the due process and equal protection clauses of the federal and of their respective state constitutions. Borden Co. v. Thomason, 353 S. W. 2d 735 (Mo., 1962); Rocky Mountain Wholesale Co. v. Ponca Wholesale Mercantile Co., 360 P. 2d 643 (N. M., 1961); Simonetti, Inc. v. Gallion, 132 So. 2d 252 (Ala., 1961); State v. Consumers Warehouse Mkt., 329 P. 2d 638 (Kan., 1958); Louisiana Wholesale Dist. Ass'n. v. Rosenzwieq, 36 So. 2d 403 (La., 1948); Moore v. Northern Ky. Independent F. D. Ass'n., 149 S. W. 2d 755 (Ky., 1941); State v. Sears, 103 P. 2d 337 (Wash., 1940); Wholesale Tobacco Dealers Bureau of So. Cal. v. Nat'l Candy & Tobacco Co., 82 P. 2d 3 (Cal., 1938); Nebbia v. N. Y. (1933), 291 U. S. 502, 54 S. Ct. 505, 78 L. Ed. 940, 89 A.L.R. 1469. Other decisions are collected and analyzed in 128 A.L.R. 1126; 118 A.L.R. 506; 57 Yale L. J. 391 and 21 Va. L. R. 336. The general principle derived from these cases is that the prohibition of sales below cost lies within the police power of the state and the legislature is vested with a wide discretion in determining whatever economic policy may be deemed to promote the public welfare, which policy the courts are powerless to override provided the laws passed hear a reasonable relationship to the legislative purpose and are neither arbitrary nor discriminatory.\\nWhile conceding the soundness of the general rule, the courts in the following cases have struck down similar statutes on the ground that the act under consideration was discriminatory, vague, bore no reasonable relationship to the legislative purpose or concerned an item or commodity not \\\"affected with a public interest\\\". Williams v. Hirsh (Ga., 1955), 87 S. E. 2d 70; Gambone v. Commonwealth (Pa., 1954), 101 A. 2d 634; Harris v. Duncan (Ga., 1951), 67 S. E. 2d 692; Lane Distributors v. Tilton (N. J., 1951), 81 A. 2d 786; Serrer v. Cigarette Service Co. (Ohio, 1946), 74 N. E. 2d 841; Commonwealth v. Zasloff (Pa., 1940), 13 A. 2d 67; Great A & P Tea Co. v. Ervin (1938), 23 F. Supp. 70.\\nIn the instant case it will be noted that the warrants obtained against the defendant do not charge the defendant with having sold cigarettes at less than cost as defined by the statute but only with having sold cigarettes below the minimum price prescribed by the Regulation CSA-2 promulgated by the tax commissioner and do not allege the intent with which such sales were made, but in view of our ultimate holding that the act is unconstitutional we need not discuss the sufficiency of the warrants as charging any crime under the act. It was stipulated by the defendant that sales were made below the prescribed price but it was not stipulated that such sales were below his cost as defined by statute.\\nAdverting to Code, 47-13-11 (a), as amended, heretofore quoted, the cost to the retailer is defined as the \\\"basic cost of cigarettes\\\" plus the \\\"cost of doing business by the retailer\\\", as evidenced by a numerous array of expenses constituting \\\"overhead costs\\\" and provides \\\"That any retailer who, in connection with the retailer's purchase, receives not only the discounts ordinarily allowed upon purchases by a wholesaler but also shall, in determining 'costs to the retailer', pursuant to this subsection, add the 'cost of doing business by the wholesaler', as defined in section two, sub-paragraph ten of this section, to the 'basic cost of cigarettes' to said retailer, as well as the 'cost of doing business by the retailer'.\\\" (Italics supplied.) This proviso is incomprehensible. Subsection (b) provides that in the absence of filing of proof of a lesser or higher cost of doing business the \\\"cost of doing business by the retailer\\\" shall be presumed to be eight per centum of the \\\"basic cost of cigarettes\\\". Subsection (c) then provides that, in the absence of proof of a lesser or higher cost the \\\"cost of doing business by the retailer\\\" who received not only the discounts ordinarily allowed upon purchases by retailers but also in whole or in part the discounts ordinarily allowed by a wholesaler shall be presumed to be ten per centum of the \\\"basic cost of cigarettes\\\" and the \\\"cost of doing business by the wholesaler\\\". Section 7 of the act provides that a retailer may sell cigarettes \\\"at a price made in good faith to meet the price of a competitor who is selling the same article at cost to him as a retailer.\\\" The above provisions are so vague and uncertain as to prevent any ordinary retailer from determining the price at which he may legally sell cigarettes without contravening the provisions of the statute. He must therefore rely upon the prices fixed, arbitrarily or otherwise, by the state tax commissioner as apparently was done in Regulation CSA-2, the basis for which is not shown by this record. Upon this ground alone the quoted provisions of the statute under consideration would fall.\\nIn General Electric Co. v. A. Dandy Appliance Co., 143 W. Va. 491, 103 S. E. 2d 310, this Court held unconstitutional and void that portion of the so-called \\\"Fair Trade Act\\\" of this state, Code, 47-11-6, as amended, which provided that the seller of trade-marked items at a price less than that stipulated by the manufacturer was a violation of the act whether or not the seller was a party to the stipulated price contract. The Court, after reviewing several cases from other jurisdictions in which such a provision was upheld, quoted with approval this language from the case of Cox v. General Electric Co., 211 Ga. 286, 85 S. E. 2d 514, 519: \\\". . . We are here, however, dealing with the statutes of this State and with the question of whether or not they violate the Constitution of the State of Georgia. What the courts of other States have decided is not controlling, and this is one of the few powers left to States to decide for themselves regardless of what the Supreme Court of the United States may or may not have decided. We are also familiar with the modern trend to allow the government to encroach more and more upon the individual liberties and freedoms. So far as we are concerned, we will not strike down the Constitution of our State for this purpose; neither will we follow the crowd. The scheme described in the petition now under consideration permits a manufacturer, under the guise of protecting his property rights in a trade name and trade-mark, to control the price of his product down through the channels of trade into the hands of the ultimate consumer, and into the hands of persons with whom he has no contractual relation whatever. This statute clearly violates the provisions of the due process clause of the Constitution of the State of Georgia.\\\" In Harris v. Duncan, 67 S. E. 2d 692 (Ga., 1951), the Supreme Court of Georgia struck down a milk control law establishing a minimum price for the selling of milk though recognizing that the Supreme Court of the United States in Nebbia v. New York, 291 U. S. 502, 54 S. Ct. 505, 78 L. Ed., 940, had upheld a New York milk law as not being violative of the due process and equal protection clauses of the Federal Constitution, the Court stating that \\\"Before the General Assembly can authorize price fixing without violating the due process clause of our Constitution, among other requirements, it must he done in a business or where property involved is 'affected with a public interest,' and the milk industry does not come within that scope.\\\" In a subsequent case of Williams V. Hirsch, 87 S. E. 2d 70, the Georgia Court again struck down an act similar to that involved here on the ground that the business of selling cigarettes is not one affected with a public interest and hence the act was offensive to the due process clause of the Georgia Constitution. We are in agreement with the Georgia Court that the business of selling cigarettes is not one \\\"affected with a public interest\\\" and that \\\"The Cigarette Sales Act\\\" under consideration is violative of Article III, Section 10, of the Constitution of West Virginia, which provides that \\\"No person shall be deprived of life, liberty, or property without due process of law, and the judgment of his peers.\\\" In so holding we are not unmindful of the decisions above cited to the contrary. However, in construing our State Constitution, we are not bound by the decisions from other jurisdictions or those of the United States Supreme Court construing the Federal Constitution. See: In re Assessment of Kanawha Valley Bank, 144 W. Va. 346, 109 S. E. 2d 649.\\nThe judgment of the Circuit Court of Fayette County, entered April 24, 1964, is affirmed.\\nAffirmed.\"}"
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diff --git a/w_va/8582791.json b/w_va/8582791.json
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@@ -0,0 +1 @@
+"{\"id\": \"8582791\", \"name\": \"Otie Prince, Widow etc. v. Compensation Commissioner et al.\", \"name_abbreviation\": \"Prince v. Compensation Commissioner\", \"decision_date\": \"1941-02-25\", \"docket_number\": \"No. 9143\", \"first_page\": \"67\", \"last_page\": \"76\", \"citations\": \"123 W. Va. 67\", \"volume\": \"123\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T18:26:46.804716+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Otie Prince, Widow etc. v. Compensation Commissioner et al.\", \"head_matter\": \"Otie Prince, Widow etc. v. Compensation Commissioner et al.\\n(No. 9143)\\nSubmitted February 4, 1941.\\nDecided February 25, 1941.\\nJ. W. Maxwell, for appellant.\\nHillis Townsend, for appellee.\", \"word_count\": \"3237\", \"char_count\": \"18890\", \"text\": \"Lovins, 'Judge:\\nThe State Compensation Commissioner awarded death benefits to the widow of W. K. Prince. An appeal was taken to the State Compensation Appeal Board by the employer, and the finding of the Commissioner was affirmed, from which action of the Board the employer appealed.\\nPrince, a coal cutting machine operator for the C. H. Mead Coal Company, a subscriber to the Workmen's Compensation Fund, was killed by a fall of slate occurring on October 3, 1939. The employer had certain rules regarding the setting of props and timber, which rules had been amended a short time before Prince was killed. It does not appear that the amendment had been approved by the State Compensation Commissioner. The amendment follows:\\n\\\"Machine men will set safety post on right as soon as machine cuts beyond that point. Also as many more as necessary to make the place safe.\\\"\\nPrince went to the place where he was killed in company with his helper, A. D. Lilly. Before the cutting machine was unloaded, the top was examined. Lilly says he told Prince that the roof was \\\"loose or heavy,\\\" and that Prince said, \\\"Maybe we can cut it.\\\" The machine was unloaded, and after having cut about six feet Lilly says he noticed that the slate was giving down from the main roof, and small particles were falling. Lilly also says that he shut down the machine and began to watch a piece of slate, and made some other comments, to which Prince replied that he had been there fifteen years and that this helper could not tell him anything about the top. He then told Lilly to start the machine, and had cut about two feet more, when the slate fell. It is further shown that under the rules and practice at this mine, machine operators determined the safety or danger in working conditions, in the absence of section foremen.\\nThe employer invokes the provisions of Code, 23-4-2, as amended by Chapter 104, Acts of the Legislature, 1937, to defeat this claim for death benefits, and contends that decedent was guilty of willful misconduct in that Prince did not set safety posts as required by the amended rule hereinabove quoted, and that he violated the provisions of Code, 22-2-32, 59 and 60, wherein certain safety measures are required.\\nThe Workmen's Compensation Law was enacted for salutary purposes. It is proper that employers should be called upon, in accordance with its provisions and meaning, to pay indemnity for accidents involving the loss of life or injury to persons in their employ, as employers are protected from burdensome litigation by its provisions. The law must be given a liberal construction to accomplish the purpose and intent. McVey v. C. & P. Telephone Co. 103 W. Va. 519, 138 S. E. 97.\\nAs stated, an examination of the record fails to show that the amended rule of the employer had been approved by the Compensation Commissioner. Such approval is obviously necessary before a violation thereof, without more, can be successfully invoked to defeat a claim for compensation. Code, 23-4-2. Sections 32, 59 and 60, article 2, chapter 22, Code, refer to the examination and timbering of the roof. Willful violation by an employee of a statute designed for his protection is willful misconduct under Code, 23-4-2. Carbon Fuel Co. v. Comp. Com'r., 112 W. Va. 203, 164 S. E. 27. However, before such a violation can be asserted as a bar to benefits under the Compensation Law, it must be shown that the employee had actual notice thereof and disregarded the same. Carbon Fuel Co. v. Comp. Com'r., supra; King v. Empire Collieries Co., 148 Va. 585, 139 S. E. 478, 58 L. R. A. 193. No such showing appears in this record. Furthermore, the statute under consideration in Carbon Fuel Co. v. Comp. Com'r., supra, prohibited the employee from doing a specific act, while sections 32, 59 and 60, referred to above, leave room for the exercise of judgment on the part of the employee.\\nIt is argued that the conduct of Prince just before his death amounted to willful misconduct in that Prince must have known, as an intelligent and experienced miner, that he was engaging in a dangerous practice; that he knew that the practice was disapproved by his helper; and because of the admonition given to him by the mine foreman and company officials urging him to set posts as required by the rules of the company. The case of Red Jacket Consolidated Coal Co. v. Compen sation Commissioner, 111 W. Va. 425, 162 S. E. 665, is cited in support of this argument. In that case, it appears that the employee was killed by using \\\"short fuses\\\" and by undertaking to set off more than one shot at a time. He had been threatened by the mine foreman with discharge because he was using short fuses, and had also been fined by a local \\\"safety club\\\" for the same offense. No such facts appear herein. The situation in which Prince found himself called for the exercise of his judgment as to the danger or safety of the roof, and his judgment was different from that of his helper, Lilly. Furthermore, it is clear that the judgment of Prince was bad, and his action negligent, but does the mere exercise of bad judgment and negligent conduct pursuant thereto constitute willful misconduct? We answer this question in the negative. Bradley v. Compensation Commissioner, 110 W. Va. 89, 157 S. E. 42.\\n\\\"Willful misconduct\\\" has been variously defined in opinions dealing with facts similar to those established in this case. In Glass v. Sullivan, 170 Tenn. 230, 94 S. W. (2d) 381, it is said that willful misconduct means more than negligence and carries the idea of deliberation and intentional wrongdoing. \\\"Willful misconduct includes all conscious or intentional violations of definite law or rules of conduct, as distinguished from inadvertent, unconscious, or involuntary violations.\\\" Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 150 S. E. 208. See generally, Tyree v. Commonwealth, 164 Va. 218, 179 S. E. 297; Sloss-Sheffield Steel & Iron Co. v. Greer, 216 Ala. 267, 113 So. 271.\\nThe Compensation Commissioner and the Workmen's Compensation Appeal Board are fact-finding agencies. The order of the board affirming the finding of the Commissioner will not be reversed on appeal, unless it is clearly wrong.\\nIn accordance with the foregoing principles, we affirm the finding of the Workmen's Compensation Appeal Board.\\nAffirmed.\"}"
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diff --git a/w_va/8582841.json b/w_va/8582841.json
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+"{\"id\": \"8582841\", \"name\": \"George H. Lacewell, Admr., etc. v. J. G. Lampkin et al.\", \"name_abbreviation\": \"Lacewell v. Lampkin\", \"decision_date\": \"1941-03-04\", \"docket_number\": \"No. 9112\", \"first_page\": \"138\", \"last_page\": \"144\", \"citations\": \"123 W. Va. 138\", \"volume\": \"123\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T18:26:46.804716+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"George H. Lacewell, Admr., etc. v. J. G. Lampkin et al.\", \"head_matter\": \"George H. Lacewell, Admr., etc. v. J. G. Lampkin et al.\\n(No. 9112)\\nSubmitted February 18, 1941.\\nDecided March 4, 1941.\\nJ. Harper Meredith, for plaintiff in error.\\nShowalter & Boggess, for defendant in error.\", \"word_count\": \"1777\", \"char_count\": \"10383\", \"text\": \"KENNA, PRESIDENT:\\nIn an action for death by wrongful act, George H. Lace-well, administrator of the estate of Geneva Lacewell, recovered a judgment for seven thousand dollars against J. G. Lampkin and Pittsburgh Provision & Packing Company in the Circuit Court of Marion County, and J. G. Lampkin was awarded this writ of error, the other defendant below submitting to the judgment of the circuit court.\\nOn the morning of June the first, 1939, between eight-thirty and nine o'clock in the morning, Geneva Lacewell and Fannie Fortune, both of whom taught in the public schools at Grant Town, distant approximately ten miles from Fairmont on Route 17, a secondary road, were waiting at 26 Pennsylvania Avenue in Fairmont to be driven to Grant Town where their pupils were to assemble for a picnic commencing at ten o'clock. Their expected means of transportation failed to materialize, and Fannie Fortune hailed Loenza Nunn who was passing in a Packard sedan and whom she had known for several years, and with whom Geneva Lacewell was acquainted, and asked him to drive them to Grant Town.\\nNunn was an embalming apprentice in the undertaking establishment of the defendant Lampkin, receiving no regular compensation and being given two or three dollars a week as spending money. He speaks of his employment as working as an assistant and states that he drove automobiles for Lampkin \\\"in funerals and other business.\\\" Lampkin says that part of his duties was to keep the passenger cars, of which there were four, clean and supplied with gasoline.\\nWhen Fannie Fortune hailed Nunn and asked him to drive them to Grant Town, he told them that he would be obliged to go to the undertaking establishment and get the permission of Lampkin, he then being engaged in having the tank of the car he was driving filled with gasoline pursuant to Lampkin's definite instruction. Upon reaching the place of business, Nunn was told by Lampkin that it would be \\\"all right\\\" to take the two teachers to Grant Town but he, Lampkin, desired to use the car Nunn had been driving so that the Grant Town trip should be made in a seven-passenger Packard sedan, also owned by Lampkin.\\nNunn took the large Packard and went at once to fulfill his conditional promise, Fannie Fortune getting in the front seat with him and Geneva Lacewell occupying the right side of the back seat. Nunn's passengers purchased two gallons of gasoline, the estimated amount to fuel the Packard to Grant Town and return, and proceeded on their way toward Grant Town. It was drizzling and the road was wet.\\nAfter passing through Rivesville and while on one of the turns of a compound curve, the Packard and a ton and a half refrigerator truck of the defendant, Pittsburgh Provision & Packing Company, loaded with fifty-five hundred pounds of meat, collided. Geneva Lacewell sustained injuries that rendered her unconscious, was taken to a Fairmont hospital where she died several weeks later without regaining consciousness. This action was brought against the owner of the Packard car and of the truck, charging that the servant of each had been negligent and that their combined negligence was the proximate cause of the death of plaintiff's decedent. The petition assigns fifteen reasons for contending that the trial judge erred, including six instructions in one single assignment and six in another. Forty-eight instructions were offered. There are what is tantamount to twenty-five alleged erroneous and prejudicial \\u00b0 rulings of the trial judge. It would seem quite apparent that they cannot all be fully discussed and separately passed upon here, so that, after having made a full examination of the record, this Court will confine its comments to what it considers the salient features that it believes may constitute reversible error.\\nThe jury viewed the scene of the accident prior to the introduction of testimony, and there were a number of demonstrations by the use of different articles before the jury that are not clarified of record, so that this Court, if it so desired, could not pass upon the weight of the entire evidence. The plaintiff below had a civil engineer measure certain dimensions and distances and prepare what may be called a road map, together with a profile, and introduce it as \\\"Plaintiff's Exhibit No. 1,\\\" the point of impact being admittedly fixed in so far as the direction of the highway is concerned, but not its transverse location, by a mark on the plat showing the location of a six or eight-inch gash one-half inch wide in the black top of the roadbed, apparently made by a broken part of the underpinning of one of the wrecked vehicles. The truck of the packing company was going south toward Rives-ville and its right side of the highway was the outside of the curve. At the point of impact there was a very slight downgrade in the direction the truck was proceeding of 1.65 degrees. There was a berm on the road, the estimated width of which varies, but at the point of collision is shown by the plat to be at least twice the width on the inside of the curve as on the outside, or the truck's side.\\nWhere the accident took place, the outside berm is a few inches lower than the surface of the roadway and beyond the berm not more than four feet is a steep embankment extending ten feet to the creek bottom. The left front of the truck struck the Packard at its left rear door. After the contact the Packard made skid marks ten or fifteen feet in length at an abrupt angle to the right, running forward only about three feet. The truck continued in a southerly direction, its driver being unable to control it due to its damaged condition, went over the bank and turned over on its side.\\nSo far as the circumstances under which plaintiff's decedent was injured are concerned, we believe that we have outlined all of the uncontradicted testimony. Both the examination and cross-examination of witnesses were exhaustive and painstaking, and, including the minutia of the slightest detail, there is unaccountable disagreement in their statements, due, perhaps, to the fact that in addition to the contention, between the plaintiff and the two defendants there is a very pronounced conflict between the defendants themselves. Without attempting to discuss the detail which could not be done free from confusion, we can say only that so far as the negligence of the participants as disclosed by the testimony is concerned, we believe that the trial judge correctly submitted that to the jury, and that there is no showing that would warrant our disturbing the verdict.\\nThe plaintiff in error asserts that the deceased was guilty of contributory negligence because of the fact that she failed to admonish the driver of the car she was in when the truck was seen approaching and \\\"weaving\\\" across the road while several hundred feet away. This point is predicated upon the assumption that a person sitting upon the back seat of a seven-passenger Packard sedan is in a situation to observe an approaching vehicle and should exercise the same vigilance to do. so as a person riding on the front seat. In passing over that question, we must not lose sight of the fact that there were two guest passengers in the Packard, and that Fannie Fortune, who was riding on the front seat with Nunn, testified without contradiction that she did comment upon, and call his attention to, the approaching truck. Assuming the plaintiff's decedent did observe the approaching truck, we believe it is necessary also to assume that she heard the driver of her car cautioned, and that being so, we are of the opinion that decedent was not obligated to repeat that caution.\\nAs we view the record, the decision of this review rests solely upon the question of whether it is a proper instance in which to apply the doctrine of respondeat superior predicated upon the relationship of master and servant, or, in other words, conceding that Nunn was generally employed as the servant of Lampkin, did the collision occur as a result of the performance of Nunn's duties as servant and within the scope of his employment, or was he at that time acting in carrying out a mission of his own? That query and the further determination of whether its answer rests upon a finding of fact at the hands of the jury, we believe, are the deciding factors of this review.\\nThere is no controversy of material fact in determining the nature of Nunn's employment. His duties restricted him to Lampkin's place of business and to driving in funeral processions and on Lampkin's business. The trip to Grant Town plainly was not on Lampkin's business, nor in furtherance thereof. True, before Nunn would leave Fairmont and use Lampkin's automobile, he very properly obtained Lampkin's approval or permission. We do not believe it can be said that he received Lampkin's direction or that the trip from Fairmont to Grant Town amounted to the supervision or direction by Lampkin of Nunn's activities. The two guest passengers purchased two gallons of gasoline in order to defray the actual expense of the trip, and to our mind, that fact coincides with what strikes us as being the undisputed fact that Nunn did not venture upon the disastrous enterprise under the direction, control or supervision of Lampkin, but that he only procured Lampkin's permission to take \\\"time off\\\" and to use Lampkin's car. True, in West Virginia, there is a prima facie presumption that the driver of an automobile is acting as the agent of the owner, but that presumption rests upon the owner being in full possession of, and possibly controlling, the information concerning possession and control of the car, and does nothing more than shift the burden of proof. Malcolm v. American Service Co., 118 W. Va. 637, 191 S. E. 527; Jenkins v. Spitler, 120 W. Va. 514, 199 S. E. 368. We are of the opinion that that burden has been overcome by the only defendant below who is now before us.\\nFor the foregoing reasons, we reverse the judgment of the Circuit Court of Marion County as to the defendant, J. G. Lampkin, set aside the verdict of the jury and award the named defendant a new trial.\\nReversed as to J. G. Lampkin; verdict set aside; new trial awarded.\"}"
\ No newline at end of file
diff --git a/w_va/8582925.json b/w_va/8582925.json
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index 0000000000000000000000000000000000000000..120dbab0b347951a7acb3cbaa3f18c662f8f1d09
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+"{\"id\": \"8582925\", \"name\": \"Olive L. Fisher v. Ohio Valley General Hospital Association\", \"name_abbreviation\": \"Fisher v. Ohio Valley General Hospital Ass'n\", \"decision_date\": \"1952-12-22\", \"docket_number\": \"CC 794\", \"first_page\": \"723\", \"last_page\": \"733\", \"citations\": \"137 W. Va. 723\", \"volume\": \"137\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T17:57:10.517648+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Olive L. Fisher v. Ohio Valley General Hospital Association\", \"head_matter\": \"Olive L. Fisher v. Ohio Valley General Hospital Association\\n(CC 794)\\nSubmitted September 23, 1952.\\nDecided December 22, 1952.\\nGoshom & Goshom, John L. Goshom and D. J. Savage, for plaintiff.\\nO\\u2019Brien & O\\u2019Brien, for defendant.\", \"word_count\": \"3351\", \"char_count\": \"20172\", \"text\": \"Browning, Judge:\\nThis action of trespass on the case was instituted by Olive L. Fisher in the Circuit Court of Ohio County, on August 7, 1951, against the Ohio Valley General Hospital Association. The declaration consisted of two counts, the first count alleging that the defendant was the operator of a hospital; that while the defendant was so operating such hospital, the plaintiff's physician caused her to be entered as a paying patient at the said hospital for treatment, and that it then and there became the duty of the defendant to take due and proper care of the plaintiff in the treatment of her illness; but, that, the defendant, disregarding its duties in that behalf, did so unskillfully and negligently conduct itself by and through its servants, that plaintiff, in the course of her treatment, was allowed to fall to the floor of the hospital and sustain serious injuries.\\nThe second count of the declaration is substantially similar to the first count except that it alleges the duty of the defendant to use reasonable care in the selection and retention of its servants, agents and employees, and especially one Phyllis A. Bahanna, a nurse's aid, whose negligence it was alleged caused the plaintiff's injury; the negligent breach of that duty and the consequent injury to the plaintiff.\\nThe defendant filed its special plea to the declaration in which it alleges that it is a nonstock, nonprofit association; that, by reason of its charitable work it has, at all times, operated at a loss; that its deficits are made up or offset by charitable donations, and that, while not admitting any negligence, it has no funds out of which any judgment in this action could be paid except those funds which are administered by it as a charitable trust.\\nThe plea further alleges that the defendant used reasonable care in the selection and retention of its agents and employees to whose care plaintiff, as a paying patient, was committed at the time she sustained the injuries alleged.\\nThe plaintiff filed a demurrer to the defendant's special plea on the ground that a charitable hospital corporation is liable for the torts of its agents and employees in the same manner as a corporation organized for profit, and filed a special replication in which she alleges that the defendant carried liability insurance out of which a judgment could be paid.\\nThe defendant demurred to plaintiff's special replication, assigning four separate grounds, the substance of which is to the effect that the coverage afforded by a liability insurance policy does not create liability in instances such as this, where the policy holder is immune from liability by reason of its charitable nature, and moved to strike plaintiff's special replication from the record.\\nThe trial court overruled plaintiff's demurrer to defendant's special plea, sustained defendant's demurrer to plaintiff's special replication, granted defendant's motion to strike plaintiff's special replication, and, upon its own motion, certified the following questions to this Court:\\n(1) Whether a charitable hospital is liable to a paying patient for negligence of its servants, agents and employees in the same manner as a corporation organized for profit?\\n(2) Assuming that said charitable hospital organization is immune from liability for the negligence of its servants, agents and employees, where reasonable care was used by said organization in the selection, training and retention of said servants, agents and employees, nevertheless, does the fact that said charitable hospital carried liability insurance create liability where, under the assumption, none existed before?\\nThe trial court answered both of these questions in the negative.\\nThere is a wide divergence of opinion among the various states upon the subject of liability of a charitable hospital to its patients for negligent injuries by its servants, agents and employees. At one extreme, we find the doctrine laid down in the states of Massachusetts and Illinois which hold that a charitable hospital is immune from liability for the negligent act of its servants, agents and employees, whether directed toward a patient of the hospital or a stranger at a place remote from the institution. Foley v. Wesson Memorial Hospital, 246 Mass. 363, 141 N. E. 113, and Simon v. Pelones, 263 Ill. App. 177.\\nWe find on the other hand that at least two states have gone to the opposite extreme and have completely repudiated the doctrine of the immunity of charitable hospitals, and place them in the same category as private institutions operating for profit. The majority of the states, however, with some qualifications, have adopted a middle view and exempt the charity from liability as to beneficiaries, though imposing liability in the case of strangers. The many theories upon which the courts have upheld the immunity of charitable hospitals from suits by beneficiaries may be generally summarized and enumerated as follows:\\nFirst: The trust fund doctrine based upon the theory that if funds from the trust could be used to compensate persons for the negligence of the servants, agents and employees of the charitable organization, the trust fund would be diverted to purposes never intended by the donor, and the charitable purposes of the creators of the trust frustrated. It was upon this theory that the non-liability of charitable institutions was first declared in Feoffees of Heriot's Hospital v. Ross, 12 Clark & Fin. 507, 8 English Reprint 1506. This English case was decided in 1846, but exactly twenty years later the doctrine of the Ross case was specifically overruled in Mersey Docks and Harbor Board Trustees v. Gibbs, L. R. 1, H. L. 93, 11 English Reprint 1500. The English courts have not since the decision in the latter case recognized the trust fund theory as a ground of immunity in this type of case. However, in McDonald v. Massachusetts General Hospital, 120 Mass. 432, 31 Am. Rep. 529, decided in 1876, and apparently the first American decision upon the question, the court chose to follow the Ross case rather than the Gibbs case. There have been numerous American decisions in accord with the McDonald ruling. 10 Am. Jur., Charities, \\u00a7 146; 14 C. J. S., Charities, \\u00a7 75; and annotations thereunder.\\nSecond: Implied waiver. It has been stated in applying this doctrine that the charitable organization is exempt from suit on the ground that a person who accepts the benefits of a private or public charity impliedly enters into a relationship which exempts his benefactor from liability for the negligence of his servants, agents and employees for administering the charity, particularly if the benefactor has used due- care in selecting those servants. In other words, there is an assumption of risk by the person who seeks and receives the services of such a charity.\\nThird: The inapplicability of respondeat superior to charitable organizations is based on the ground that medical attendants do not, in a true sense, assume the relationship of master and servant.\\nFourth: Public policy.\\nThere has been no attempt, nor do we consider it necessary, to cite all of the case law under each of these headings, either in support of the position or in criticism of it. For a comprehensive discussion of the subject see 10 Am. Jur., Charities, \\u00a7 140, et seq., and 14 C. J. S., Charities, \\u00a7 75.\\nThis Court first passed upon this question in 1925 in the case of Roberts v. Ohio General Hospital, 98 W. Va. 476, 127 S. E. 318; 9 M. J., Charitable Hospitals, 474. In that case, the plaintiff filed a declaration for damages, alleging an injury due to the negligent and unskillful treatment of one of the defendant's nurses while the plaintiff was at the defendant's hospital as a paying patient. The decision in that case committed this Court to the principle of conditional immunity, and held that a charitable hospital is liable to patients for injuries due to the negligence of its physicians, nurses and attendants only in instances where it has been negligent in the selection and retention of such employees. If the hospital uses reasonable care in the selection and retention of such employees, then it is immune from liability for their negligent injury to a patient of the hospital. It would appear from the language of the opinion in the Roberts case that the decision granting qualified immunity to a charitable hospital was based upon public policy. Cf. Shaffer v. Monongalia General Hospital, 135 W. Va. 163, 62 S. E. 2d 795.\\nThe trial court, relying upon the authority of the Roberts case, answered the first question certified to this Court in the negative, and the second question similarly upon the assumption that the added fact, not present in the Roberts case, that the defendant here carried liability insurance would not change the result. We are urged by the plaintiff in error to abandon the doctrine of the Roberts case, or in the alternative to extend the liability of charitable hospitals beyond the specific ruling in that case, and impose liability upon the factual situation present in this proceeding.\\nAs before stated, the theory of trust fund immunity has been disapproved and severely criticized by several American courts, and is completely discredited in the English law. The principal arguments raised against the trust fund theory of immunity are to the effect that those who contribute to the creation of such a fund for the establishment of a hospital, or thereafter contribute for its maintenance, do so with the realization that some of such funds may be expended for causes other than the immediate services to indigent patients, and that the purity of the aims of a charitable trust should not justify its torts.\\nThe implied waiver theory likewise has been attacked upon many grounds, principally that it is a violent assumption to say that one entering a hospital unconscious or delirious, or too young to understand the meaning of a contract, impliedly entered into a relationship which would exempt the administrator of the charitable institution from liability for the negligence of its servants in administering the charity. There has been little support for exempting charitable hospitals from liability on the basis that they are performing a public function, and, therefore, performing a public duty. The view that medical attendants in hospitals are not servants of the institution, but rather the servants of the patients, so long as they are in attendance upon the patient, is primarily based upon the doctrine of the Roberts case that the hospital is liable only if negligent in the employment and retention of its personnel.\\nThe criticism to the exemption from liability of charitable hospitals of the doctrine of respondent superior is to the effect that the master and servant rule applies almost universally whether the master is engaged in an enterprise which requires him to have employees for profit or otherwise.\\nWe are aware of and have carefully considered the criticism that has been directed against the doctrine of exempting charitable hospitals from liability to a beneficiary upon the ground of public policy. The principal argument in support of this criticism is to the effect that while the public has an interest in the maintenance of a public charity, it also has an interest in requiring every person and corporation which undertakes a performance of a duty to perform it carefully, and to that extent it has an interest against exempting any person and any such corporation from liability for its negligence. It must be observed, however, that the Roberts case does not grant complete immunity to such institutions, but rather a qualified immunity which requires that those who operate the institution must use due care in the selection of its personnel, and if negligent in that regard may be liable. The fact that a patient in such an institution pays the usual fee for services rendered, and perhaps a fee comparable to that required of him in a hospital operating for profit, is a feature that has caused several courts to depart from the principle of immunity, and is another source of criticism of the doctrine of the Roberts case. We do not believe that any division of immunity as between paying patients and those who accept charity of an institution should be established. It would be preferable to remove the immunity of the hospital to all of its patients rather than to place the paying ones in a separate and favored position over their less fortunate fellow patients.\\n\\\"The fact that patients who are able to pay are required to do so does not deprive a corporation of its eleemosynary-character, nor permit a recovery for damages on account of the existence of contract relations. The amounts thus received are not private gain, but contribute to the more effectual accomplishment of the purpose for which the charity is founded.\\\" 10 Am. Jur., Charities, \\u00a7 151.\\nIt may be argued with some degree of reason that all persons who administer a charitable trust fund are agents or servants of the trust, and that there is no more reason to impose liability on a charitable hospital because of the negligence of one class of servants, i.e., the trustees, or those who administer the affairs of the hospital, than there would be to impose liability for the negligence of another class of servants, i.e., the physicians, nurses and attendants who are employed by those who govern the institution. On the other hand, there is no opportunity for detailed or direct supervision of the personnel of such an institution by those who select a staff, and after due care has been used in selecting them, and no negligence has been shown in retaining them, the reason for the doctrine of qualified exemption is apparent whether one agrees or disagrees with it.\\nWe quote from the body of the opinion in the Roberts case:\\n\\\"Public policy demands that charitable institutions be fostered and preserved. To this end, the law should deal with them more leniently than with institutions conducted solely for private gain. No human endeavor of any magnitude is immune from mistakes. No matter how strict a rule might be enforced against institutions of this nature, mistakes in treatment would occasionally happen. Employees and servants selected with ordinary care, however, will execute the charity with but few mistakes. If no care be had in their selection, mistakes will necessarily multiply. The purpose of the founders of a charity is to help those who need assistance. They propose not unskillful or incompetent aid, but humane and efficient treatment. The subject of an employee's negligence is harmed instead of helped by the charity. The will of the donors is thwarted instead of served when an object of their beneficence suffers from such neglect. When administered by incompetent servants, charity, instead of being a great boon to humanity, may become a menace. One who enters a hospital expects and has a right to expect, more skillful treatment than is obtainable in the home. If such institutions be not held to reasonable care in the selection of their employees, confidence in their efficacy will be shaken. Many who need, will fear to accept hospital treatment, and those who do apply therefor, will lack the faith therein that is so frequently half the battle in the contest with disease.\\n\\\"In order that the high purpose of the donors of a charitable hospital may be best served, that those who need aid may not hesitate to accept the charity, and to prevent as far as may be human suffering from acts of negligence or incompetence, it would seem imperative to require of those in charge reasonable care in the selection and retention of the employees.\\n\\\"The fact that one is a paying patient does not alter the rule. Such patient is the recipient of the donors' gratuity only in a lesser degree than one who makes no payment. The hospital building, with its equipment, management, and its great possibilities for the alleviation of suffering, was provided by charity. In using the organization made possible and supported by that charity, a paying patient, to that extent, benefits by the charity. \\\"\\nThe doctrine of the Roberts case has been the law of this jurisdiction for more than a quarter of a century, and we believe it is in accord with the weight of authority in this country. \\\"With regard to American jurisdictions, as a matter of general consideration (although subject to the exception already discussed that a few jurisdictions recognize liability in all situations), the rule is well settled that a person who receives an injury from the negligent acts of the servants of a charitable corporation at a time when he is accepting the benefits of the charity cannot recover for such injury, provided the corporation used due care in selecting its servants. The corollary to this general proposition is also observed, by American courts. The clear inference from the general rule as to immunity of charitable organizations from liability for injuries due to torts of their agents or employees is that there is liability if due care is not exercised in such selection, and this is in line with the weight of authority. \\\" 10 Am. Jur., Charities, \\u00a7144. The Roberts case and many from other jurisdictions are cited in the footnote.\\nIn the case under consideration, we have a factual situation not present in the Roberts case, to which the second question certified by the trial court is directed, and that is that the defendant carried liability insurance which protected the institution from any judgment that might be rendered against it as a result of injury to a patient by the negligence of employees of the institution. A number of courts have withdrawn immunity from charitable hospitals in cases where the institution carried liability insurance. In Wendt v. Servite Fathers, 332 Ill. App. 618, 76 N. E. 2d 342, the court said: \\\"We hold that where insurance exists and provides a fund from which tort liability may be collected so as not to impair the trust fund, the defense of immunity is not available.\\\" To the same effect is Morton v. Savannah Hosp., 148 Ga. 438, 96 S. E. 887; O'Conner v. Boulder Colorado Sanitarium Assn., 105 Col. 259, 97 P. 2d 835; and others.\\nWe do not elect to follow the doctrine of the cases last cited, although we recognize that under the rule of the Roberts case it may be necessary for charitable hospitals to carry liability insurance to protect them against injuries that may result from the negligent employment or retention of its personnel. However, we believe that the established precedent in this State, which represents the weight of authority elsewhere, should be adhered to and that to make an exception, in the case of one institution which has such insurance and deny in others that do not, would constitute the beginning of a descent into a quagmire of judicial confusion into which many courts have been plunged on this subject, and from which they have, with difficulty, extricated themselves, if, indeed, they have extricated themselves at all. The New York court, prior to 1937, subscribed to the theory of immunity, but in that year in Sheehan v. North County Community Hospital, 273 N. Y. 163, 7 N. E. 2d 28, repudiated the doctrine. Then, in 1940, in Dillin v. Rockway Beach Hospital & Dispensary, 284 N. Y. 176, 30 N. E. 2d 373, that court again adopted a policy of conditional immunity.\\n10 Am. Jur., Charities, \\u00a7 152, citing many cases in the footnote, recites what we believe to be the majority view on this particular question: \\\"The fact that a charitable institution carries indemnity insurance indemnifying it from liability to a recipient of its bounty does not create liability, in instances where such charitable organizations are immune from liability.\\\"\\nWe are of the opinion that the ruling of the trial court upon each of the questions certified was correct, and, therefore, that ruling is affirmed.\\nRuling affirmed.\"}"
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+"{\"id\": \"8583667\", \"name\": \"Charles Eubank v. Harold D. Price, Clerk, etc.\", \"name_abbreviation\": \"Eubank v. Price\", \"decision_date\": \"1938-05-24\", \"docket_number\": \"No. 8765\", \"first_page\": \"205\", \"last_page\": \"207\", \"citations\": \"120 W. Va. 205\", \"volume\": \"120\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T23:08:19.066288+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Charles Eubank v. Harold D. Price, Clerk, etc.\", \"head_matter\": \"Charles Eubank v. Harold D. Price, Clerk, etc.\\n(No. 8765)\\nSubmitted May 11, 1938.\\nDecided May 24, 1938.\\nDaugherty & Daugherty, for relator.\\nT. L. Read and E. C. Eagle, for respondent.\", \"word_count\": \"793\", \"char_count\": \"4379\", \"text\": \"Fox, Judge:\\nThis is a proceeding in mandamus under the original jurisdiction of this Court.\\nFrom the allegations of the petition, it appears that Lillie Nunally, the aunt of the petitioner, was a former resident of Summers County, West Virginia, and the owner of real estate in that county, which she attempted to devise by her will; that early in the year 1931, she removed to Huntington, in Cabell County, and, until her death in September, 1931, wa>s a bona fide and legal resident of that county; that prior to the year of her removal from Summers County, on December 4, 1928, she executed a will, to which she added a codicil on February 11, 1929, which will and codicil were, as appears from the answer of the respondent, admitted to probate by the county court of Summers County on September 23, 1931; that on July 20, 1931, she executed a paper, alleged to be a will, purporting to devise real estate in Summers County, and this paper was admitted to probate in the county court of Cabell County on the 27th day of May, 1937; and that recordation of a certified copy thereof was refused by the clerk of the county court of Summer s County, the respondent herein, when the same was presented to him for that purpose. Petitioner seeks to compel the recordation of the paper so presented.\\nThe respondent clerk defends his action in refusing to admit to record the paper probated as a will in Cabell County, on the ground that the county court of that county did not have jurisdiction to admit to probate any will of Lillie Nunally, for the reason that her domicile was, at the date of her death, in Summers County; that the county court of that county had, on September 23, 1931, admitted to probate the will of Lillie Nunally; that probate of the alleged will of July 20, 1931, had been sought in the county court of Summers County by the petitioner herein, as late as March, 1937; and that the purported probate of the said paper as a will by the county court of Cabell County was improper, and not a basis for the admission of a certified copy thereof in Summers County.\\nIt will be observed that the question of which of the two papers admitted to probate as wills \\u2014 one in Summers County and the other in Cabell County \\u2014 is the true will of the testatrix, is not before the court, nor can that question be considered in a proceeding of this char acter. The statute provides the methodsi by which that question may be determined. Code, 41-5-11. The only question is whether or not, the county court of Cabell County having admitted to probate one of the alleged wills, and the same purporting to devise real estate in Summers County, the claimant thereunder isi entitled to have a certified copy thereof admitted to record in that county.\\nCode, 41-5-18, would seem to settle the question. It is therein provided, in effect, that a duly certified copy of a domestic will, when admitted to probate, may be recorded in any other county of the state wherein there is any real estate devised thereby, and it isi made the duty of a personal representative to record such will in each such county. As stated by the Code Revisers, the purpose of the statute is to make the record of the county show the chain of title to real estate passing under the will. The purpose, as stated, is commendable, the statute is clear, and no discretion appears to have been vested in the clerk as to his duty in the premises. Under the statute, he cannot say that a duly certified copy of a paper, such as a will probated in another county and which the statute says may be recorded in other counties, shall not be recorded. It is not for him to pass upon the legality of the probate of the paper in question by the county court of Cabell County. The decision on that point involves the domicile of the testatrix and possibly other questions. The courts are open for a test of those questions. It was the duty of the clerk to follow the plain provisions of the statute, admit the paper to record, and leave to interested parties the settling of the effect of the probate, as wills, in the courts of different counties, of the two papers set out in the record.\\nThe writ prayed for will be awarded.\\nWrit awarded.\"}"
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diff --git a/w_va/8583703.json b/w_va/8583703.json
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+"{\"id\": \"8583703\", \"name\": \"Clara W. Stanton, Admx., etc. v. Ruthbell Coal Company\", \"name_abbreviation\": \"Stanton v. Ruthbell Coal Co.\", \"decision_date\": \"1945-05-29\", \"docket_number\": \"No. 9650\", \"first_page\": \"685\", \"last_page\": \"699\", \"citations\": \"127 W. Va. 685\", \"volume\": \"127\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T00:25:43.240659+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Clara W. Stanton, Admx., etc. v. Ruthbell Coal Company\", \"head_matter\": \"Clara W. Stanton, Admx., etc. v. Ruthbell Coal Company\\n(No. 9650)\\nSubmitted April 25, 1945.\\nDecided May 29, 1945.\\nF. E. Parrack, for plaintiff in error.\\nFrancis M. Shea, Assistant Attorney General, Arnold\\nLevy, Special Assistant to Attorney General,' and Harry I. Rand, Attorney Department of Justice, and Martin J. Cole, Attorney, Solid Fuels Administration for War, for the United States as amicus curiae.\\nRichard E. Davis and Clarence Roby, for defendant in error.\", \"word_count\": \"4299\", \"char_count\": \"25665\", \"text\": \"Riley, Judge:\\nClara W. Stanton, administratrix of Ernest L. Stanton, deceased, instituted this action of trespass on the case in the Circuit Court of Preston County, to recover damages for her decedent's death while he was employed as a coal miner in a mine alleged to have been owned and operated by the defendant, Ruthbell Coal Company. This writ of error is prosecuted to a judgment in the amount of sixty-five hundred dollars in plaintiff's favor based upon a jury verdict.\\nThe declaration avers that on August 27, 1943, the day of the accident, decedent was employed by defendant in its coal mine in Preston County. It sets forth that defendant was negligent in that it did not operate the mine with reasonable safety and ordinary care and subjected decedent to extraordinary risks and hazards; that it failed to instruct decedent in the dangers of his employment and failed to provide tools, appliances, props and machinery reasonably safe and necessary for decedent's use; that it employed negligent and incompetent employees and failed to keep a sufficient number of experienced employees; that it did not provide decedent with a safe place in which to work; that it did not elect to become a subscriber to the Workmen's Compensation Fund; and that it negligently permitted slate, coal and earth to hang loosely in and about the roof of the mine.\\nThe defendant pleaded the general issue and filed three other pleas, one a plea in abatement and two special pleas in bar, asserting that the Government of the United States under an Executive Order issued by the President of the United States, was, on August 27, 1943, decedent's em ployer and in complete possession and control of the mine and its operation, and therefore defendant was under no liability whatsoever.\\nThe trial court sustained plaintiff's demurrers to the plea in abatement and the two special pleas in bar. On the trial defendant again attempted to set up as a defense under the general issue the fact of Government control 'and offered in evidence a telegram sent to defendant's president, C. W. Craig, by Harold L. Ickes, Solid Fuels Administrator for War, dated May 1, 1943, appointing Craig as the operating manager for the United States of defendant's coal mine, a copy of the Executive Order of . the President, dated May 1, 1943, authorizing said Ickes to take charge of any and all coal mines in which a strike or stoppage of work has occurred or is threatened, and a copy of the Regulations for the Operation of Coal Mines under Government Control, dated May 19, 1943, promulgated by the Secretary of the Interior of the United States under the Executive Order. The court ruled that defendant was precluded from such defense by the court's rulings upon the demurrers to the pleas and rejected the evidence.\\nPursuant to the President's Order, Government control over defendant's mine was established on May 12, 1943, and maintained until it was terminated by an order of September 3, 1943. The Regulations, dated May 19, 1943, for the Operation of Coal Mines under Government Control, promulgated by the Secretary of the Interior under the Executive Order of May 1, 1943, recite that the primary object of Government intervention in the operation of coal mines \\\"is the maintenance of full production of coal for the effective prosecution of the war.\\\" They provide that: (1) Wherever the cooperation of the coal company and its personnel can be secured, the existing organization of the company will be utilized, and the company will continue operation in its regular course of business conforming with such directions as the Government may issue; (2) title to the properties is to remain in the mine owners, the Government \\\"having temporarily taken possession or custody\\\" and asserting \\\"only such rights as are necessary to accomplish the national purpose of continued and maximum production\\\"; (3) that operating managers for the mines are to be appointed upon nomination by each company and may be removed at the company's request; (4) that the operating manager and the other officers and employees of the mining company, subject to their responsibilities to the Government and Orders and Regulations of the Solid Fuels Administrator \\\"shall serve as agents and employees of the company with respect to all actions which they would have been empowered to take on behalf.of the company in the absence of Government control of its property\\\", and nothing in the Regulations shall be construed as recognizing the personnel as officers and employees of the Federal Government within the statutes relating to personnel, and that the mining company's personnel and property shall \\\"remain subject during the period of Government control to all Federal and State laws and to actions, orders, and proceedings of all Federal and State courts and administrative agencies.\\\"\\nOn August 25, 1943, plaintiff's decedent was employed to work in defendant's mine by one Peter Titchenell, who testified that he was defendant's assistant foreman at Ruthbell Coal Company Mine No. Three. Titchenell was experienced in timbering mines. Decedent was injured in the early evening of August 27, 1943, and died as a result of his injuries on August 28, 1943. At the time injured, decedent, together with David W. Morgan, a fellow-employee who had been employed on the same day with decedent, went to work at two o'clock in the afternoon in driving a cross entry through one heading to a cross entry leading from another heading, being driven by two other employees, Samuel Forman and Robert Hornby. After the cross entry in which decedent and Morgan were working had been driven a considerable distance toward the opposite entry, a fault was encountered. It then became necessary for the workers to go back some distance and drive along the left of the fault.\\nLate in the afternoon or early in the evening the break through was accomplished. Stanton was the first to step through the opening into the other cross entry. He then came back through the hole and was fatally injured by the fall of a large rock from the roof of the heading which he and Morgan had been driving. Just before the rock fell,,Morgan said to decedent, \\\"You had-better look out, there's a crack in there.\\\" The rock was near or at the place where the cross entry was turned to the left for the purpose of avoiding the fault. When Morgan went to work that day he noticed a large rock overhead. Shortly before Stanton was injured, and'almost immediately before the rock came down, he looked up, saw the crack in the roof and warned decedent, \\\"Do you see that crack up there in the roof?\\\". Morgan was so close to Stanton when the latter was injured that the draft caused by the fall of the rock extinguished his light.\\nThere were no props or cross bars supporting the roof at the place where Stanton and Morgan were working when the break-through was accomplished, though a safety post had been placed under one end of the rock by Norman J. Field, a timber-man, who testified that he set the post at the end of the rock, \\\"where I found it needed it.\\\" This witness, over objection, was permitted to express the opinion that from his experience as a \\\"skilled tim-berman\\\", the roof could have been supported. He testified that the opening where Stanton was injured was too narrow to permit the laying of tracks, but was wide enough to be timbered on each side with cross bars overhead and permit the men to work. Witnesses testified variously as to the width of the opening at the point where the'rock fell, their estimates varying from 6 to 12 feet. Titchenell estimated that the cross cut was six feet, three inches at the narrowest place.\\nTitchenell inspected the place three times on August 27: in the morning, in the afternoon about one o'clock, and again about eight o'clock in the, evening, a few minutes before the rock fell. He was present about the time of the break-through, but left before Stanton was injured. He saw the rock, noticed the crack in the roof which was at- the end of the rock and wide enough to permit the insertion of a human finger. He saw Field install the safety post. He testified that on the occasion of his last inspection, he told the men working there, \\\"Now, men, if the cut shows any break or anything after you get it through timber it up so it will be safe; if there is any crack.\\\" He admitted.he talked to Field.in the morning and told him, \\\"We'll set a heavier [one] as soon \\u00bfs we can get the post in\\\", but the record does not affirmatively show that a heavier post was substituted before the rock fell, though there is evidence indicating that on the day following there was a post standing at or near the place where the safety post had been installed by Field, which may or may not have been the same post.\\nBoth Morgan and decedent evidently had little mining experience and none in mine timbering. The former had no miner's certificate, and as to whether decedent did the evidence conflicts.\\nPlaintiff's witness, George McIntyre, a district mine inspector for the State of West Virginia, who had worked in the mines for forty-five years, been mine inspector for ten years, and timbered in mines about forty years, made an inspection of the place where Stanton was injured at the instance of the State Mining Department. He testified that he did not notice any props of cross bars on the occasion of his inspection. Over objection, he was permitted to testify that from his experience it was practicable to support by means of cross bars the stone which injured decedent; that the place could have been made safe by cross bars, if the condition had been known to the mine foreman and that the cross cut should have been cross barred, if the crack earlier in the day had been pointed out to the mine foreman.\\nThe allegation contained in the declaration that defendant did not elect to become a subscriber to the Workmen's Compensation Fund was admitted by defendant on the record.\\nThe United States lodged for filing a brief as amicus curiae, to the filing of which defendant objected. 'The brief was not timely filed in accordance with the practice prevailing in this Court, so that counsel for defendant would have an opportunity to answer it. Leave to file the brief is refused. Such matter lies within the discretion of this Court.\\nThe defendant assigns four grounds for reversal: (1) That plaintiff has not established that defendant was guilty of primary negligence proximately resulting in decedent's death; (2) that the court erred in permitting the witness, Norman J. Field, to testify that as a \\\"skilled timberman\\\" and experienced in timbering mines, he was of the opinion that the roof of the opening could have been reenforced and should have been timbered, and the witness McIntyre to give his opinion testimony as hereinbefore set forth; (3) defendant's instruction No. 4 should have been given; and (4) the court improperly rejected defendant's pleas setting up Government control as a defense, and the documentary evidence in support thereof. For convenience these grounds will be considered seriatim.\\nDecedent and his co-worker had little mining experience and no experience as timbermen. Both had been employed at defendant's mine for the first time on August 25, 1943. They had been hired by Titchenell, defendant's assistant foreman, an experienced timberman, who was in charge of the mine in which decedent was injured. Titchenell inspected the place of work on three occasions on August 27, the last time immediately before the rock fell. In the morning he saw Norman Field install the safety post at the end of the rock and observed the crack in the roof. He told Field that a heavier post should be substituted for the one then being installed. On cross-examination he admitted that cross bars could have been set, and we cannot say from this record that, as a matter of law there was insufficient room for such installation. Witnesses testified variously as to the width of the cut, their estimates ranging from six to twelve feet, and Titchenell himself admitted that at the .narrowest place the cross cut was six feet, three inches. The cut was wide enough for men to work in after cross bars had been installed, according to Field, but not wide enough for the laying of tracks. If the opinion testimony of Field and McIntyre is admissible, a matter which will be discussed later in this opinion, the failure to install cross bars under the roof where the rock was located and the crack appeared might have caused plaintiff's injuries. At least the jury was entitled to find that such failure rendered the place where decedent was working dangerous and unsafe, as alleged in the declaration. Code, 22-2-53, charges Titchenell, as defendant's assistant mine foreman, with the duty to visit and carefully examine each working place in the mine each day while the miners in such place are at work, and further to see that the working place is secured by props or timbers to the end that it may be made safe. Under this statute, he was also charged with the duty, if he found the place in which decedent was working to be in a dangerous condition, not to leave it until it was made safe or to remove persons working therein until the place was made safe. Whether Titche-nell's failure to carry out his statutory duty and to cause the installation of cross bars proximately resulted in decedent's injuries is for jury determination. If he was negligent in this regard, his negligence is to be charged to defendant. He was decedent's immediate superior. As such he was in charge of the place in which decedent was working at the time he was injured. The control which he had over decedent would render defendant responsible for his negligence. Waldron v. Garland Pocahontas Coal Co., 89 W. Va. 426, 437, 109 S. E. 729; Wilson v. Valley Improvement Co., 69 W. Va. 778, 785, 73 S. E. 64. And the fact that there was a concomitant duty upon decedent, under Code, 22-2-59, to \\\"thoroughly examine the roof and general conditions of his working place before commencing work, and if he finds loose rock or other dangerous conditions, he shall not commence work in such place until it has been made safe, or unless it be for the purpose of making such place safe,\\\" is no defense to this action. The defendant having failed to become a subscriber to the Workmen's Compensation Fund, the defense of contribu tory negligence, as well as other c\\u00f3mmon law defenses, is not available to defendant under Code, 23-2-8.\\nDefendant's objection to the admission of the opinion testimony of Field and McIntyre is without substantial merit. Field testified \\\"as a skilled timberman\\\", experienced in timbering minqs, that the roof could have been supported. Defendant's counsel says that the question addressed to Field assumed his skill and experience, but the record discloses that he had had at least one year's experience in the practical work of timbering. McIntyre had had about forty-five years' experience working in coal mines; he had timbered for about forty years; and had been state mine inspector for ten years. The testimony of these witnesses was properly admitted.\\nDefendant's complaint of the trial court's action in refusing defendant's instruction No. 4 will not be heard here for the reason that Rule VI (e) of the Rules of Practice for Trial Courts was not complied with. The defendant did not except to the trial court's ruling in this regard.\\nFinally, defendant complains of the trial court's action in sustaining plaintiff's demurrers to the plea in abatement and the two special pleas in bar, setting forth Government control and possession of defendant's mine and in refusing to admit into evidence the Executive Order of the President providing for Government possession and control of coal mines, acting through the agency of the Secretary of the Interior of the United States as Solid Fuels Administrator, the Proclamation of the Administrator purporting to effectuate Government control, and the \\\"Regulations for the Operation of Coal Mines under Government Control\\\", issued on May 19, 1943, and amended on July 29, 1943, and August 13, 1943. The President's Order provides that the Secretary of the Interior shall take over such control of coal mines as he may deem necessary to accomplish the primary object of government possession, which is set forth in the Regulations as \\\"the maintenance of full production of coal for the effective prosecution of the war.\\\"\\nThe Regulations, in our opinion, clearly indicate that, except and only if necessary to effect the primary object of Government control, such control would be nominal. In Warner Coal Corp. v. Costanzo Transp. Co., 144 F. 2d 589, (certiorari denied by United States Supreme Court, 65 Sup. Ct. 432) the United States Circuit Court of Appeals for the Fourth Circuit in holding that notwithstanding Government control of coal mines, under the Executive Order of May 1, 1943, and the Regulations \\\"there was no interference with the operation of the Coal Company's mines\\\". In this regard, this case must be distinguished from those involving the complete and exclusive Government control of railroads and communications systems during World War I, under the Federal Control Act (March 21, 1918, C. 25, 40 Stat. 451). In Missouri Pacific Railroad Company v. Ault, 256 U. S. 554, 41 Sup. Ct. 593, 65 L. Ed. 1087, Mr. Justice Brand\\u00e9is succinctly stated: \\\"By the establishment of the Railroad Administration and subsequent orders of the Director General, the carrier companies were completely separated from the control and management of their systems. Managing officials were 'required to sever their relations with the particular companies and to become exclusive representatives of the United States Railroad Administration.' The railway employees were under its direction and were in no way controlled by their former employers.\\\" In Virginian Railway Co. v. Mullens, 271 U. S. 220, 46 Sup. Ct. 526, 70 L. Ed. 915, the Supreme Court of the United States held that a railroad company is not liable for floodings of private land resulting from a condition of the railroad structure amounting to a nuisance, where the nuisance was created by its predecessor in title, and where the injurious consequences occurred when the railroad had been taken over and was being operated by the Government under the Federal Control Act. The Court in arriving at its decision relied in part upon General Order No. 50, issued October 28, 1918, by the United States Railroad Administration (Bulletin No. 4, Revised, 334), which directed that actions and suits based on claims for injuries to persons, damage to property, etc., growing out of the possession, use, control or operation of any railroad by the Director General should be brought against that officer and not otherwise. In North Carolina Railroad Co. v. Lee, Admx., 260 U. S. 16, 43 Sup. Ct. 2, 67 L. Ed. 104, the Supreme Court held that a railroad corporation whose line, while leased to another, was taken over by the Government, under the Federal Control Act, cannot be held liable for personal injuries occasioned during Federal control, under the local rule making lessor railroads liable for the negligence of their lessees. And in Davis v. O'Hara, 266 U. S. 314, 45 Sup. Ct. 104, 69 L. Ed. 303, the same Court held that an action by an employee of the Director General for personal injuries, sustained in the operation of a railroad under Federal control, is against the United States, and the sovereign immunity from suit is waived only to the extent clearly indicated by the Federal Control Act and the Orders of the Director General. From these cases it can be readily seen that under the Federal Control Act and subject to the provisions thereof, the Director General of Railroads was liable for personal injuries, death, or property damage, resulting from the negligent operation of the railroads, though the carriers themselves had no such liability.\\nOn the contrary a person injured during Government control, or his personal representative, if he is killed, cannot under the Executive Order of May 1, 1943, the Solid Fuels Administrator's Proclamation, and the Regulations have any recourse against the United States or the Administrator. The Regulations provide, among other things, that \\\"he [operating manager] and all other officers and employees shall serve as agents and employees of the company with respect to all actions which they would have been empowered to take on behalf of the company in the absence of Government control\\\". Such officers and employees are not to be considered employees of the United States within the meaning of the statute governing personnel. Section 24 of the Regulations provided that, \\\"The mining companies, their personnel and their property are deemed to remain subject during the period of Government control to all Federal and State laws and to actions, orders, and proceedings of all Federal and State courts and administrative agencies. The mining companies are deemed to remain subject to suit as heretofore.\\\" (Italics supplied.) In our opinion, these Regulations expressly provide against Government liability and the relief of the mining companies subject to Government control from the liability which it had in the absence of Government control. There being no recourse against the Government for personal injuries or death of mine workers resulting from the operation of coal mines held under Government control, such as existed under the Federal Control Act governing railroads and communications systems during the last war, a construction of the Regulations that would relieve the defendant coal company from liability in this action on the basis of Government control would create a grave injustice. It would not be consonant with justice and fair dealing for this Court to hold, as we must, that there is no liability against the Government, because it has not consented- to be sued; and at the same time say that because of Government control a defendant, who has failed to become a subscriber to the Workmen's Compensation Fund, is relieved from liability for negligence in the operation of its mine. To so hold would render a worker in a coal mine helpless against the negligence or wrongdoing of his employer where the employer, as in the instant case, has failed to protect its employees by subscribing to the Workmen's Compensation Fund. In the case of Quinn v. Southgate Nelson Corp., 121 F. 2d 190, decided by the United States Circuit Court of Appeals for the Second Circuit, certiorari in which was denied by the Supreme Court of the United States (314 U. S. 382), which involved the death of a bridge tender, due to negligence of the master, officers, and crew of a ship, which was a part of a fleet owned by the United States Maritime Commission, operated by the defendant, pursuant to a contract with the commission, the Court held the defendant corporation liable for decedent's death, notwithstanding the contract under which the ship was being operated at the time decedent was killed, provided that the commission retain a power of veto over defendant's selection of licensed officers, and in return for services to be rendered, consisting of managing, operating and conducting the business of the steamship line, and commanding, equipping, victualing, supplying, and operating of the vessels, the defendant was to receive from the Commission all of its operating costs and its overhead expenses, but was to receive no share of the profits and bore no part of the losses. That case, in our opinion, is sound. A fortiori, in the instant case, where defendant company was operating a coql mine, subject to Government control on defendant's own account and for its own profit, it should not be relieved from liability for the negligence of its officers and agents in the operation of its mine. The circuit court's rulings, in our opinion, were proper in sustaining plaintiff's demurrers to defendant's plea in abatement and special pleas and refusing to admit the documentary evidence in support thereof. For cases illustrative that the Executive Order of May 1, 1943, and the Regulations promulgated thereunder did not effectuate a virtual control of the operation of coal mines, see Warner Coal Corp. v. Costanza Transp. Co., supra; Consagra Coal Co. v. Borough of Blakely, 55 F. Supp. 76, holding that the operating manager of a mining company, appointed under Government control of coal mines, together with the mining company, could not bring a suit for the United States to enjoin an alleged illegal and tortious interference with the operation of a coal company's mines; and Glen Alden Coal Co. v. National Labor Relations Board, 141 F. 2d 47, in which the United States Circuit Court of Appeals for the Third Circuit held that notwithstanding government control of coal mines, the right of mine workers to bargain collectively and engage in concerted activities was not abridged, and the coal company remained obligated to comply with the order of the Labor Board.\\nFor the foregoing reasons, we \\u00e1re of the opinion that the judgment of the Circuit Court of Preston County should be affirmed.\\nAffirmed,\"}"
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+"{\"id\": \"8584762\", \"name\": \"Barbara Sanford et al. v. The First City Company et al.\", \"name_abbreviation\": \"Sanford v. First City Co.\", \"decision_date\": \"1937-06-08\", \"docket_number\": \"No. 8541\", \"first_page\": \"713\", \"last_page\": \"728\", \"citations\": \"118 W. Va. 713\", \"volume\": \"118\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T02:41:29.702365+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Barbara Sanford et al. v. The First City Company et al.\", \"head_matter\": \"Barbara Sanford et al. v. The First City Company et al.\\n(No. 8541)\\nSubmitted May 11, 1937.\\nDecided June 8, 1937.\\nCowden & Cowden and Peyton, Winters & Hereford, for appellants.\\nHogsett & Smith, for appellees.\", \"word_count\": \"5211\", \"char_count\": \"30082\", \"text\": \"Kenna, President:\\nBy their bill of complaint filed in the Court of Common Pleas of Cabell County the plaintiffs, Barbara Sanford, William D. Sanford, and Cora Gibson, as the owners of Lot 11, Block 120 in the City of Huntington, sought to compel the defendants, The First City Company, Huntington Realty Corporation, C. & D. Company and Jackson Building & Loan Association, to transfer to them a wall constructed along the east line of that lot and covering a strip of land seven and three-fourths inches wide lying immediately outside the east line of Lot 11, and to construct a building wall upon Lot 11 and along its west line as well as to remove an interior partition wall standing entirely upon Lot 11 in a building that covers Lots 10 and 11 in Block 120. Each of the lots fronts thirty feet on Third Avenue and extends back a distance of one hundred sixty feet. The building now standing is approximately sixty feet wide and covers Lots 10 and 11 to their full depth of one hundred sixty feet, having its western wall entirely on Lot 10 touching and parallel with its western property line, and its eastern wall on the seven and three-fourths-inch strip lying just east of the eastern line of Lot 11.\\nThe suit was for the purpose of compelling performance of a building covenant contained in a twenty-year lease for Lot 11 dated December 10, 1919, from Nathan Sanford, immediate predecessor in title of the plaintiffs, to Azel Meadows, whom, the plaintiffs allege, the defendants succeed in title and to the obligation of the covenant, by which Azel Meadows bound himself and his assigns \\\"as additional rental\\\" to \\\"erect a brick building on said lot, 30x100 feet two-story front and pay for the same, said building to begin May 1, 1920.\\\" The bill of complaint contained the usual prayer for general relief.\\nThe cause was transferred to the Circuit Court of Cabell County and there proceeded, after proof, to a final decree denying to the plaintiffs the relief prayed for, and from that decree they prosecute this appeal.\\nThe showing depended upon by the plaintiffs below to entitle them to the relief sought by their bill of complaint is as follows:\\nOn December 10, 1919, Nathan Sanford, since deceased, with the plaintiffs surviving him as his sole heirs-at-law, leased Lot 11 to Azel Meadows. By the terms of the lease the lessee covenanted to pay a rental of sixty dollars per month for the term of twenty years from January 1, 1920, and, by way of and as additional rental or consideration, \\\"to erect a brick building on said lot 30 x 100 feet two story front\\\", the erection whereof was to start May 1, 1920. The lease contained an option under which the lessee might purcha.se the lot for $35,000.00 at any time during the term.\\nOn March 12, 1920, Azel Meadows obtained a lease from Lucy Van Bibber covering Lot 10, adjoining Lot 11 on the west, and. in that lease, by the use of language almost identical with that used in the Sanford lease, Meadows covenanted that he would, within four years from the first day of April, 1920, erect upon Lot 10 a two-story brick building thirty by ninety feet. This lease also contained an option to the lessee to purchase, the price to be $20,000.00.\\nMeadows, the lessee in both of the leases just described, did not erect separate buildings upon each of the lots in conformity to the separate covenants. Instead, he constructed a building fronting approximately sixty feet on Third Avenue covering both lots and divided it into three storerooms, each approximately twenty feet wide, so that one storeroom and one-half of the middle storeroom (with a variation of some seven and three-fourths inches on account of the wall arrangement hereinafter de scribed) lies within the confines of each of the two lots. A three-story building had theretofore been erected upon Lot 12, and its western wall, for the purposes of this case, may be regarded as extending along the eastern line of Lot 11 for its entire depth. Rather than construct a new wall for the building that he intended to build, Meadows purchased outright from the owners of Lot 12 the seven and three-fourths-inch strip lying east of and along the eastern boundary line of Lot 11 with the wall standing on it. It will be observed that this arrangement caused the eastern wall of his building to be entirely outside the property line of Lot 11. It will further be observed that, whereas Meadows' covenant required him to-place on Lot 11 a building one hundred feet deep, the building which he constructed under this arrangement was in fact one hundred sixty feet deep. In the construction of his sixty-foot-front building, Meadows built the western wall entirely upon Lot 10 and along its western line. This wall, instead of being ninety feet deep, as his covenant with Lucy Van Bibber required, was built by Meadows one hundred and sixty feet deep. The building was completed sometime after June 15, 1920, since the deed granting to Meadows the seven and three-fourths-inch strip bears that date.\\nThe proof does not disclose that this arrangement by which Meadows departed from his undertakings to construct separate buildings upon Lots 10 and 11 was ever made a matter of express agreement between him and Nathan Sanford, who was then living, but we think that the circumstances disclosed by the evidence warrant no other conclusion than that it was done with the full knowledge and consent of Sanford.\\nOn April 5, 1926, Azel Meadows and wife assigned the Sanford lease, as well as the Van Bibber lease, to Azel Meadows Realty Company, the lease containing no assumption by the assignee of the lessee's covenants. It is to be noted that this assignment does not transfer to the Azel Meadows Realty Company the ownership of the seven and three-fourths-inch strip to the east of Lot 11 upon which one wall of the building stood.\\nOn November 5, 1927, the Azel Meadows Realty Company transferred the two leases to Jackson Building & Loan Association. The transfer contains no assumption of covenants oh the part of the assignee, and, of course, transfers no interest in the seven and three-fourths-inch strip.\\nOn September 25, 1928, Jackson Building & Loan As-' sociation transferred the two leases to The First City Company. There is no assumption of covenants in this transfer.\\nThe Jackson Building & Loan Association had become the owner of all of the capital stock of The First City Company and that corporation was, to all intents and purposes, its wholly owned subsidiary.\\nOn March 31, 1930, pursuant to the exercise of the option to purchase contained in the Van Bibber lease, The First City Company received a deed from Lucy E. Van Bibber for Lot 10.\\nOn the ninth day of February, 1932, The First City Company bought from the trustee in bankruptcy of Azel Meadows and Azel Meadows Realty Company the seven and three-fourths-inch strip upon which the east wall of the Meadows building stood.\\nOn the eighth day of August, 1934, The First City Company transferred the fee ownership in Lot 10, as well as the ownership in the seven three-fourths-inch strip, to the Huntington Realty Corporation.\\nOn the tenth day of August, 1934, The First City Company transferred to the C. & D. Company all of its rights in the Sanford lease upon Lot 11.\\nBoth the Huntington Realty Corporation and the C. & D. Company were organized as liquidating agencies of Jackson Building & Loan Association and the capital stock of each was issued pro rata to the stockholders of the association, The C. & D. Company took from the building association only assets of doubtful value, the assets considered good going to the Huntington Realty Corporation and to other companies organized to receive them. '\\nThe position of the plaintiffs is that the covenant to build made by Azel Meadows in the lease from Nathan Sanford was expressly entered into as additional rental and that since the building- that Meadows agreed to construct was not to be built at any particular time, performance of the covenant could be exacted at any time \\u2022and against any tenant who might hold under the lease at the time demand for performance of the covenant was made; that Azel Meadows bought the seven three-fourths inches to the east of Lot 11 for the sole purpose of performing his covenant with Nathan Sanford, and that by so doing and by building the remainder of the wall on the seven three-fourths-inch strip, he complied in part only with his covenant. The plaintiffs contend that this part compliance with his covenant on the part of Azel Meadows had the effect of binding Meadows to cause the seven three-fourths inches to be vested, along with the wall standing thereon, in Nathan Sanford or his successors in title, and that the remaining part of his covenant required him to build a building which would have its west wall extending one hundred feet, inside of and along the western boundary line of Lot 11. The plaintiffs contend that this unperformed part of the covenant can be enforced against The First City Company and Jackson Building & Loan Association in spite of the transfer of the seven and three-fourths-inch strip to Huntington Realty Corporation and of the Sanford lease to C. & D. Company, because the latter corporations have stockholders and directors that are practically identical and the transfers were made to them for the known purpose of taking an unfair advantage of the plaintiffs and for that reason the corporate entities of the two latter corporations will be ignored in a court of equity.\\nWe confess that we cannot follow this reasoning of the plaintiffs in its entirety. In the first place, while it correctly takes the position that the building of the thirty by one hundred foot building was stipulated for as additional rental in the Sanford lease to Azel Meadows, it ignores entirely the fact that the covenant required the building to be commenced on or before May 1, 1920. We cannot agree that this covenant constituted a stipulation for additional rental to be paid at any time during the term of the lease, thus causing its obligation to fall upon successive tenants until it was fully discharged. While it may rightly be said that time is not necessarily of the essence of this covenant in the strictest sense, we think that it is plain from a reading of the lease that the parties thereto contemplated that the building should be begun on or before May 1, 1920, and completed within a reasonable time thereafter, and that Nathan Sanford and his successors in title should have the right to exact substantial performance of it on that basis. It follows from the position that we have just stated that the covenant to build cannot be regarded as having been partially complied with when Azel Meadows acquired the seven and three-fourths-inch strip and partially built and partially acquired the wall along its entire depth of one hundred and sixty feet, and at the same time partially breached by his failure to construct a two-story wall upon Lot 11 along its western boundary. We think that the covenant to build was either performed or breached, or modified by an additional implied contract brought about by the conduct of the parties, within a reasonable time after May 1, 1920.\\nOn the other hand, defendants contend that when Azel Meadows acquired the seven and three-fourths-inch strip along the eastern boundary of Lot 11 and built a part of the wall thereon so that there was a brick wall along its entire depth of one hundred and sixty feet, he obligated himself in no way to convey the strip of land with the wall on it to Nathan Sanford or his successors in title, and that his conduct did not create an easement in the wall and strip of land in favor of the owners of the Sanford lot. The defendants' position is that the conduct of Azel Meadows in not commencing his building on or before May 1, 1920, and, when he did construct it, departing radically from the terms of his covenant, constituted a breach of that covenant and, since a broken covenant ceases to run with the land, there is neither privity of contract nor privity of estate respecting the covenant on the part of any later tenant that requires it to perform this obligation. Defendants contend that if there should be found any obligation on the part of tenants after Azel Meadows to perform the covenant, or any part thereof, such an obligation can rest only upon privity of estate and is only enforceable as such against each successive tenant during his tenancy. They say that the circumstances shown by the proof do not amount to fraud, and that there is no warrant for ignoring the separate corporate entities of Huntington Realty Corporation and C. & D. Company even though the assets they received from The First City Company and Jackson Building & Loan Association were assigned to them for the very purpose of relieving the Jackson Building & Loan Association and The First City Company of any obligations under the Sanford lease.\\nWhile we freely admit the difficulties that exist in attempting to-apply correct legal principles to this rather unique state of facts, we are of the opinion that the solution lies between the conflicting contentions of the parties litigant. There can be no doubt as to what the undertaking of Azel Meadows was under the covenant of the lease that he took from Nathan Sanford. He undertook, as additional rental, to construct a building of brick, thirty by one hundred feet, with a two-story front. This he did not do. Instead of doing what his covenant required him to do he constructed a building, not entirely upon Lot 11 but covering the entirety of both Lots 10 and 11. No wall of this building actually constructed by Meadows was upon Lot 11, excepting a partition wall approximately twenty feet west of its eastern line. For the eastern wall of the building that he actually constructed, he acquired seven and three-fourths inches of land lying outside of and along the eastern line of Lot 11 upon which there already stood a brick wall for about one hundred twenty feet, and he completed the wall on the seven and three-fourths-inch strip for the remainder of its entire depth of a hundred and sixty feet, so that he provided for his building a one hundred and sixty-foot wall to the east. He constructed no other building wall on Lot 11 as, of course, his original covenant to build would have required had he literally-performed it. The Sanfords , with either actual or imputed knowledge of what was taking place upon and concerning their property, stood by and acquiesced in this conduct of Meadows. We are of the opinion that the circumstances shown by testimony in which there is little conflict require the inference to be drawn that they impliedly consented and agreed to it, and that the conduct of Azel Meadows, acquiesced in and agreed to by the Sanfords constituted the partial substitution of a new contract for the contract represented by the original covenant in the lease from Sanford to Meadows. A written contract may be modified by the subsequent conduct of the parties thereto relating to the same subject matter. Azure v. Hunter, 101 W. Va. 191, 132 S. E. 726. But the new contract will be held to depart from the first to the extent only that its terms are inconsistent therewith. Myers v. Carnahan, 61 W. Va. 414, 57 S. E. 134; Poteet v. Imboden, 77 W. Va. 570, 88 S. E. 1024.\\nIt follows from the foregoing conclusions that when Azel Meadows acquired and built the wall standing upon the seven and three-fourths-inch strip to the east of Lot 11 in order to carry out his modified understanding with the Sanfords, it was necessary for him to accord to them whatever rights in the wall thereon were necessary to carry out the fundamental purpose of the original covenant, and of the new agreement substituted in lieu of it. It is perfectly plain that the original covenant, requiring the lessee to construct a building upon the property of the lessor the value of which was to constitute additional rental, contemplated that the building should pass back to the lessor or his successors in title with the reversion at the end of the lease. Other wise, of course, the lessor would receive nothing in addition to the money rental stipulated, while the covenant clearly contemplates that the lessee should construct a building as further consideration for the lease. Therefore, we are of opinion that the understanding between the Sanfords on the one hand and Azel Meadows on the other, evidenced by their conduct in modifying the original covenant and undertaking in its place the construction that resulted in the present building, necessarily contemplated that there should vest in the lessors at the termination of the lease whatever rights in the seven and three-fourths-inch strip were necessary to give them the full use of the wall that stood upon it. Azel Meadows, of course, had contracted to construct a building. He had not contracted to acquire additional land that should vest in his lessors in fee. Neither do we find room in the proof to sustain the inference that the implied contract which modified the original covenant contemplated more than that the ownership of the east wall, together with whatever rights in the land upon which it stood that were necessary for the full enjoyment of such ownership, should pass to the lessors in lieu of the reversion in the building which they otherwise would have received, and in lieu of the construction of the west building wall to the depth of one hundred feet. We do not believe that it is necessary to imply from the conduct of the parties, as shown by this record, that it was the purpose of Azel Meadows to transfer the seven and three-fourths-inch strip in fee to the Sanfords. The building that the Sanfords would have received in reversion, had the original covenant been fully complied with by Azel Meadows would, it is true, have reverted to the lessors in absolute ownership. The additional consideration, however, which they would have received from performance of the covenant would have been the enjoyment of the building, or of the walls thereof, for the life of the building. As we have already stated, the implied contract, represented by the conduct of the parties, we think, necessarily contemplated that some rights in the seven and three-fourths-inch strip at the termination of the lease should be substituted for the rights in reversion that the lessor would have received under the original covenant. The least that could be substituted would be an easement in the seven and three-fourths-inch strip and the ownership of the wall standing thereon. It is at once apparent that a mere easement in the east wall itself for the maintenance of the present building, would not work substantial justice because the lessor (Sanford) and his successors in title can exercise no control over the west wall of the present building which stands upon the Van Bibber lot. It lies within the power of the owners of the Van Bibber lot to end the life of the present building by devoting their lot to some other purpose. We must assume that the implied contract of the parties contemplated an adjustment that would be substantially fair and reasonable to both the contracting parties. The use, therefore, of the east wall on the seven and three-fourths-inch strip, to which the present owners of Lot 11 are entitled, must extend beyond a sustaining of the present structure and must include the present or any future structure in which the present wall standing upon the seven and three-fourths-inch strip can be utilized. We think that there is no need to go beyond this because any building constructed under the original covenant would have given the lessors in reversion no more enjoyment in its walls than that which is co-extensive with the existence of those walls. This, we think, is imposing the least burden upon the seven and three-fourths-inch strip that can fairly and reasonably be implied from the conduct of the parties.\\nSo, we are of opinion that the original covenant contained in the Sanford-Meadows lease was subsequently modified by the conduct of the parties with reference to the subject matter of that covenant. Considering the covenant itself and the modification thereof by the subsequent conduct of the parties as constituting together the contract between them, we believe that contract required Azel Meadows to furnish for the use of the San-fords in sustaining the present or any future building to be placed by them upon Lot 11, the entire one hundred sixty-foot wall lying on the seven and three-fourths-inch strip just to the east of Lot 11 and an easement in the seven and three-fourths-inch strip to the extent necessary to protect .their enjoyment of their rights in the wall. There can be no doubt but that the Sanfords, under the contract as so modified, had fully performed on their part. For all of the years that it has been in effect, they have accepted a rental of sixty dollars a month and have accepted the conduct of Azel Meadows as having constituted a compliance with the covenant of their lease as modified by the subsequent arrangement.\\nThe next question which arises, of course, is whether under the circumstances the written covenant of the lease, as modified by the subsequent understanding by parol, is enforceable.\\nThis brings us into a field where there is much conflict among the decided cases. It has to do with the distinctions, either real or supposed, that have been drawn between mere naked licenses, licenses said to be coupled with an interest, and easements, and the effect of the statute of frauds upon all of them. A large number of cases have been examined but it would be impossible within the scope of this opinion to discuss and to undertake to discriminate among the conflicting .principles that they lay down. In our opinion, many of the .cases confuse what is called an irrevocable license with an. easement. An exhaustive note upon the revocability of licenses is published with the West Virginia case of Pifer v. Brown, as it appears in 49 L. R. A. at page 497. Particularly, that part of the note under the heading \\\"Equitable Exceptions\\\" beginning at page 507, is of interest in this case. This note was followed by one on the same general subject appearing in 13 L. R. A. (N. S.) at page 991, and by another in 19 L. R. A. (N. S.) at page 700, and by still another in 25 L. R. A. (N. S.) at page 727. The West Virginia case of Pifer v. Brown, 43 W. Va. 412, 27 S. E. 399, 49 L. R. A. 497, referred to above, in an opinion written by Judge English, affirmed a finding arrived at on conflicting proof that the right to lay and maintain a drain pipe upon adjoining land was a mere license, and held that as such it was revocable at the will of the licensor. This case was cited and followed in the later West Virginia case of Dickinson v. Foster, 81 W. Va. 739, 95 S. E. 196. It is true that in the Pifer case the right was conferred by parol, but it is submitted that if, in fact, it was a mere license the manner of its creation was immaterial.\\nBut in Tufts v. Copen, 37 W. Va. 623, 16 S. E. 793, in which the opinion was also written by Judge English, this court had held that an easement for the right-of-way for a tramroad based upon a parol contract that had been executed by the claimant of the easement entering into possession and expending a considerable sum of money upon the construction of the tramroad, after having fully paid and discharged the consideration for the easement, was enforceable in a court of equity. In the Pifer case, Judge English does not refer to the Tufts case and, so far as we have been able to discover, at no place in our decisions is the distinction between them commented upon. The rule deducible from these two West Virginia cases is that whereas a mere license is revocable (this would seem to be true whether it was created by parol or by writing), nevertheless a verbal contract for the creation of an easement which has been fully or partly performed by the party thereto who seeks to establish the easement will be enforced by decreeing specific performance of the contract notwithstanding the statute of frauds when to refuse to enforce the contract would be tantamount to a fraud upon the party seeking to establish the easement. Some of the cases which sustain this principle are Rindge v. Baker, 57 N. Y. 209, 15 Am. Rep. 475 (the decision in this case enforces a parol party wall agreement which was partly performed, and discusses principles analogous to those before the court here. Three majority opinions were filed, and there were two dissents, although no dissenting opinions seem to have been published); Hazelton v. Putnam, 3 Pinney, 107, 3 Chandler 117, 54 Am. Dec. 158 (this case discusses parol licenses, both those said to be revocable and those said to be irrevocable and attempts to distinguish them) ; Wynn v. Garland, 19 Ark. 23, 68 Am. Dec. 190; Rhea v. Forsyth, 37 Pa. St. 503, 78 Am. Dec. 441. See also the authorities cited at page 692 of 136 Am. St. Rep. in the note to the case of Smith v. Garbe, 86 Neb. 91, 124 N. W. 921, 136 Am. St. Rep. 674, 20 Ann. Cas. 1209. In addition to regarding this rule as having been established in West Virginia by the Tufts case and as having never since then been overruled, we believe that it conforms to and is entirely consistent with that line of cases holding that executed parol gifts of land where the donee has expended money upon substantial improvements are specifically enforceable in our courts of equity. See Frame v. Frame, 32 W. Va. 463, 9 S. E. 901, 5 L. R. A. 323.\\nOur conclusion, therefore, is that the original covenant contained in the Sanford-Meadows lease as modified by the parol contract subsequently entered into, evidenced by the conduct of the parties, is specifically enforceable in a court of equity due to the fact that the parties seeking its enforcement have fully performed the undertakings of the contract on their part, and that it would be tantamount to a fraud upon their rights to hold that under the statute of frauds the contract is not enforceable.\\nAs to the west wall which the bill of complaint prays the defendants may be required to build upon Lot 11, we are of the opinion that the proof is insufficient to entitle the plaintiffs to this relief. We are deciding the case upon the basis of an implied contract which we believe the proof shows may fairly and reasonably be said to arise from the conduct of the parties. This modification, we think, was intended by the parties to completely take the place of the building requirement of the original covenant. We do not believe that we can reasonably say that the parties intended the substitution of the seven and three-fourths-inch strip and the wall standing upon it as a partial performance of the original covenant which left the original covenant broken with respect to the wall one hundred feet deep to be erected along the west line of Lot 11. The covenant to construct a complete build ing not being divisible, we believe cannot be regarded as having been partly performed and partly breached. As we have already pointed out, we do not believe that it was either performed or breached. The waiver of the building terms of the original covenant was the consideration that moved from the Sanfords to sustain the new implied agreement. The performance of the new implied agreement on the part of Azel Meadows was the consideration that moved from him to the Sanfords to sustain this waiver. Wei think that it is fair and reasonable to suppose that the Sanfords were willing to accept one wall one hundred and sixty feet deep and the widening by seven and three-fourths inches of the room upon their lot in lieu of the two walls one hundred feet in length that they would have been entitled to under their original covenant. Certainly it would not be reasonable to suppose that Azel Meadows would enter into a new contract which would require him to furnish a wall on the east one hundred and sixty feet deep and to construct a wall one hundred feet deep on the west, thus requiring him to furnish two hundred and sixty feet of wall when the original covenant called for but two hundred, and in addition, to furnish seven and three-fourths inches of land to broaden the room upon Lot 11, unless this record clearly showed that it was to his advantage to do so. The record contains proof as to what the seven and three-fourths-inch strip and the wall standing thereon cost Azel Meadows. It contains no proof whatever of the cost of that part of the east wall which Azel Meadows constructed upon the seven and three-fourths-inch strip. Therefore, there is no basis for comparison from which it can be deduced either that Azel Meadows did or that he did not save money by purchasing the seven and three-fourths-inch strip.\\nSince it is apparent that the subsequent purchasers of the seven and three-fourths-inch strip took it with full notice of the burdens imposed upon it, it is subject in their hands to the easement imposed upon it.\\nIn accordance with what has already been said, we are of the opinion to reverse the decree of the Circuit Court of Cabell County and to remand the case with direction that a decree be entered according to the plaintiffs the ownership of the wall now standing upon the seven and three-fourths-inch strip lying to the east of and parallel with the east line of Lot 11, in Block 120, together with an easement in that strip itself for the maintenance of that wall in connection with its use in the building at present standing in part upon Lot 11 and any future building that may be erected thereon by the plaintiffs and their successors in title, and that the plaintiffs be denied the further relief prayed for.\\nReversed and remanded.\\nWhere opinion speaks of \\\"the Sanfords\\\", Nathan Sanford and his successors in title are meant.\"}"
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+"{\"id\": \"8629184\", \"name\": \"Washington National Building & Loan Association v. Conley et al.\", \"name_abbreviation\": \"Washington National Building & Loan Ass'n v. Conley\", \"decision_date\": \"1907-04-18\", \"docket_number\": \"\", \"first_page\": \"65\", \"last_page\": \"66\", \"citations\": \"62 W. Va. 65\", \"volume\": \"62\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T20:07:47.070354+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Washington National Building & Loan Association v. Conley et al.\", \"head_matter\": \"CHARLESTON\\nWashington National Building & Loan Association v. Conley et al.\\nSubmitted February 12, 1907.\\nDecided April 18, 1907.\\nTiujstr \\u2014 Bill to Enforce.\\nTne syllabus in Washington National Building and Loan Association, v, Baser, decided at this term, approved and affirmed, (p. 66.)\\nAppeal from Circuit Court, Tucker County.\\nBill by the Washington National Building & Loan Association against William G. Conley and others. Decree for defendants, and plaintiff appeals.\\nReversed.\\nForuestW. Brown, for appellant.\\nChas. D. Smith, for appellees.\", \"word_count\": \"236\", \"char_count\": \"1499\", \"text\": \"McWhoiiteR, Judge:\\nThis was a bill in chancery filed in the circuit court of Tucker county by the Washington National Building and Loan Association, a corporation, against William G. Conley, Josiah C. Stoddard and Addison G. Dubois, trustees, and S. D. Few, to which bill the defendants Conley and Few filed their demurrer which being considered by the court was sustained and the plaintiff declining to amend its bill the same was dismissed by the court and a decree for costs entered against-the plaintiff. From which decree the plaintiff appealed.\\nThe questions involved in this cause were considered in the case of Washington National Building and Loan Association v. Buser and others in a decision rendered at the present term of court. For the same reasons there assigned the decree in this case is reversed, the defendants' demurrer to the bill is overruled and the cause remanded to the circuit court to be there further proceeded in.\\nReversed.\"}"
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diff --git a/w_va/8630599.json b/w_va/8630599.json
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+"{\"id\": \"8630599\", \"name\": \"Shires v. Boggess\", \"name_abbreviation\": \"Shires v. Boggess\", \"decision_date\": \"1910-11-01\", \"docket_number\": \"\", \"first_page\": \"137\", \"last_page\": \"141\", \"citations\": \"68 W. Va. 137\", \"volume\": \"68\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T17:16:31.339232+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Shires v. Boggess.\", \"head_matter\": \"CHARLESTON.\\nShires v. Boggess.\\nSubmitted March 25, 1909.\\nDecided November 1, 1910.\\n1. Assault' and Batteky \\u2014 Pleading\\u2014Defense of Son Assault Demesne.\\nThe defense of son assaxilt demesne must be pleaded specially, and cannot avail under the general issue, in an action for damages from an assault and battery.\\n2. Same \\u2014 Pleading\\u2014Matters in Justification.\\nMatters in justification of an assault and battery, as defense to a suit for damages, must be pleaded specially. They cannot be given in evidence under the general issue.\\n3. Same \\u2014 Issues\\u2014Confession of Valid Defense.\\nIf a proper plea averring matters which legally justify the assault and battery made the basis of an action for damages is not replied to .or controverted, a valid defense stands confessed, and no issue exists.\\n4. Judgment \\u2014 On Trial of Issues \\u2014 necessity for Issues.\\nIt is the established law of this state that a judgment based on trial without joinder of issue is erroneous and reversible from want of issue alone.\\nError to Circuit Court, Monroe County.\\nAction by Minerva Shires against W. E. Boggess. Judgment for plaintiff, and defendant brings error.\\nReversed, verdict set aside, and remanded.\\nBoggess & Boggess and T. N. Bead, for plaintiff in error.\\nJohn W. Arbuclcle, John Osborne, and R. L. Keadle, for defendant in error.\", \"word_count\": \"1849\", \"char_count\": \"10490\", \"text\": \"LOBINSON, PRESIDENT :\\nIn this action for damages from an assault and battery, the plaintiff, upon the verdict of a \\u00bf1117, has judgment against the defendant for two hundred dollars. We are asked to review the case and to reverse the judgment upon the ground that the case was tried without issue, and for other alleged errors.\\nThe defendant pleaded the general issue and two special pleas of justification \\u2014 son assault demesne. The two special pleas were not replied to or traversed by the plaintiff in any particular. No issue was joined on either of them. The special pleas admitted he assault and battery but justified the alleged wrong. But, it is said that there was joinder on the general issue, that the matters of justification were triable under it, and that, therefore, the special pleas 'were immaterial and demanded no reply. Clearly, if the matters of justification were not 'within the general issue, the special pleas were proper. And if those pleas were material to assert matters of justification, there was no denial of the justification alleged, and there was, therefore, no issue to try. F'or, the defendant admitted the assault and battery, and the asserted justification under the law of self defense was a complete bar to the action so long as there was no reply in that regard. Without reply \\u2014 without issue on the special pleas \\u2014 tire cause of action was completely answered. The plaintiff's suit was at an end until those pleas were controverted. Then, were the matters in justification only plead-able specially? Or did the general issue include those matters and bring them to trial ?\\nIt is well settled that matters in justification of an assault and battery are not within the general issue and must be pleaded specially, in an action for damages. Hogg's PI. & Forms, section 245; Shipman's Common Law Pleading 290. The following expressions from other authorities are in point: \\\"In all cases of justification, the defendant must plead the matter of defense specially. Thus he must always plead the defense , of son assault demesne, and however justifiable he may have been in the battery, be cannot, on the plea of not guilty, give evidence of Ms-justification; for that admits the act which his plea denies.\\\" 2 Tucker's Com. 54. \\\"Under a mere general denial, the defendant cannot introduce evidence tending. to prove a justification of the assault.\\\" 2 Enc. PL and Pr. 862. \\\"Matters of justification cannot be given in evidence under the general issue but must be pleaded specially.\\\" 3 Cyc., title Assault and Battery, 1084.\\nSo we observe that the general issue did not suffice to put the alleged matters of justification to trial, and that proper special pleas alleging these matters stood confessed, because those pleas were not controverted. Since the matters of justification stood confessed there was nothing to try. The alleged wrong.'was excused. There was no issue in the case. There could be no legal trial Therefore, the judgment cannot stand.\\nThe plaintiff's brief characterizes as technicality the point that there was no issue, since the parties proceeded to trial as though on an issue joined. Whatever the overthrow of a judgment on the ground that there was no issue may be rightly termed, it is certainly the established law of this state that a judgment without joinder of issue will be reversed and set aside, because of the want of issue alone. It may be true that parties who acquiesce in trial without a formal issue should be estopped from raising the point after verdict, as is held in some jurisdictions. But that is not our law. The decisions of this Court, and of Virginia prior to the formation of this state, recognize the doctrine that any judgment without issue is reversible, regardless of acquiescence in the trial or fault for the absent issue, and though the point is raised only after verdict. It is our province to declare the law as we find it. We would not be warranted in overturning a long existing rule, founded on principles of the common law, as this one is. The Legislature may do so. But we are guided not by policy as that law-making body is. We must look to what the law actually is, not to what it ought to be.\\nThe rule, that a judgment based on trial without joinder of issue is erroneous and reversible from 'want of issue alone, is firmly fixed in our jurisprudence. In 8 Enc. Dig. Va. & W. Va. Eep. 295, the many cases involving the rule are cited, and there it is said: \\\"Where trials by jury have been had without issue joined they have invariably been set aside as wholly unauthorized by-law. This has been repeatedly held in Virginia before and in West Virginia since its formation, and must be regarded as settled law, correctly announcing the common-law rule on that subject.\\\" In Bennett v. Jackson, 34 W. Va. 62, it is stated by Judge SstydeR: \\\"In numerous eases, both in Virginia and this State, it has been decided that a judgment entered upon the verdict of a jury sworn to try the issue joined, when no issue is in fact joined or where there 'were more than one plea, and no issue had' been joined on some one of such pleas, such judgment will for that, reason only be set aside by the appellate court.\\\" In Brown v. Cunningham, 23 W. Va. 111, Judge G-REEN cites numerous cases and says: \\\"It is well settled, that if a verdict has been rendered without \\\"any issue being joined, it is a mere nullity, and no judgment can properly be rendered upon it whether it be in a civil or criminal action.\\\" And in Ruffner v. Hill, 21 W. Va. 152, Judge GReen discusses the subject, as follows: \\\"It is said, the only issue -which could be made up, is the one actually tried, and it would be too technical to reverse, because the formality of entering the plea of not guilty was omitted. But these cases abundantly show, that the Court has not reversed judgments entered upon such verdicts, because there was any doubt as to the real issue which the jury tried, nor because. the defendant might have made up some other issue, if he had pleaded. The reasons for these decisions are entirely different from what this argument presumes. The real ground on which these decisions rest is, that by the common la'w the court has no right to make up the issue and empanel a jury to try it; hut the parties by their pleadings must first come to an issue, and then it is tried by a jury. When therefore the record shows, that the parties by their pleadings have not come to any issue but nevertheless the record shows that the issue was tried, this issue must either have been illegally - made up by the court or by a blunder it must have been assumed to have been made up bjr the parties, when in fact it was not. In some of the cases we have cited, the record shows distinctly what was the exact issue tried by the jury, and also that the verdict was distinctly responsive to such issue; and that it was the only issue the parties in the particular case could have made, had1 they by the pleadings made any issue. Yet the judgments were reversed, because no issue so far as the record showed had been formed. It has been held as absolutely necessary in every case, that an issue shall be made up by the pleadings, before a jury can be empaneled to try the ease.\\\" Later expressions of this Court emphatically recognize the same principle. In Stevens v. Friedman, 53 W. Va. 19, it is held: .\\\"It is a settled rule of the common law strictly adhered to by this Court that before a trial can be had by a jury it a common law suit on issue joined, the defendant must put in or file his plea, and the record must show this fact and the character of the plea on which the issue is joined.\\\" Only recently the rule was declared in Good v. Town of Chester, 65 W. Va. 13. Therein we held: \\\"The record must affirmatively show a plea and issue on it; otherwise a judgment on a verdict will for that cause alone be reversed.\\\"\\n' Particularly applicable to the case at hand is the'decision in Curry v. Mannington, 23 W. Va. 14, wherein the judgment was reversed and the verdict set aside because the case was tried without replication or issue joined, on the plea of the statute of limitations. So, \\\"if a special plea is filed requiring a replication that an issue may be raised, there can be no trial until such replication is pleaded to and issue joined between the parties.\\\" Hogg's PL & Porms, sec. 290. \\\"It is error to proceed to trial.and judgment while a good and valid plea, or one of several pleas, remains unanswered and not in any way disposed of.\\\" 23 Cyc. 771. \\\"The pleadings in a cause must evolve an issue of law or fact before a judgment can be rendered; and a judgment rendered without issue joined is at least erroneous, if not void.\\\" 11 Enc. Pl. & Pr. 864.\\nIt becomes unnecessary to notice the other errors assigned. If issue is joined and the case is brought to trial, \\\"the circuit court on rehearing may correct all such, errors if any.\\\" Stevens v. Friedman, supra.\\nThe judgment will be reversed, the verdict set aside, and the case remanded with leave to the plaintiff to take issue on the defendant's special pleas, or to take such step in the case as may be advised.\\nReversed, Verdict Set Aside and Remanded.\"}"
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diff --git a/w_va/8630635.json b/w_va/8630635.json
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+"{\"id\": \"8630635\", \"name\": \"Reed v. Bachman\", \"name_abbreviation\": \"Reed v. Bachman\", \"decision_date\": \"1907-03-05\", \"docket_number\": \"\", \"first_page\": \"452\", \"last_page\": \"468\", \"citations\": \"61 W. Va. 452\", \"volume\": \"61\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T00:29:12.828727+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Reed v. Bachman.\", \"head_matter\": \"CHARLESTON\\nReed v. Bachman.\\nSubmitted June 9, 1905.\\nDecided March 5, 1907.\\n1. Joint Tenant ob Tenant in Common \\u2014 Adverse Possession as to Go- Tenant\\u2014 When.\\nTo enable 01115 joint tenant or tenant in common in exclusive possession of land to effect an ouster against his cotenant; so as to defeat the right of such cotenant by adverse possession under the statute of limitations, such cotenant must have notice or knowledge of such hostile claim. Mere silent possession ever so long, by one taking rents and profits, without notice or knowledge of such adverse claim on the part of the other, will not be adverse possession under the statute, (p. 455.)\\n2. Joint Tenant \\u2014 Exclusive Possession \\u2014 Ouster\\u2014Statute of Limitation.\\nWhere one joint tenant is in exclusive possession under the common title, a co-tenant cannot lose his right by. mere laches in failing to demand admission into joint possession or share of the rents and profits. There must be an ouster operating to give title under the statute of limitations, (p. 455.)\\n3. Joint Tenants'Ob Tenants-in Common \\u2014 Land Of \\u2014 Sold Under Deed of Trust \\u2014 Title Acquired by Joint Tenant \\u2014 When.\\nWhere one joint tenant or tenant in common acquires title from a sale under a deed of trust made by all the cotenants for a debt binding all, and the sale is caused by his failure to pay his share of the debt, he cannot,under his right so derived, hold the land against his cotenants, (p. 4C0.)\\nAppeal from Circuit Court, Pleasants County.\\nSuit by Joseph S. Reed against Margie E. Bachman et aL Bill was dismissed' on demurrer and Reed appeals.\\nReversed.\\nH. P. Camden; R. E. Bills; Gr. D. Smith; and Edward A. Bi\\u00edannon, for appellant.\\nVan Winkle & Ambler; Clyde B. Johnson; J. H. W. Simpson; and John F. BaRRON, for appellees.\", \"word_count\": \"6839\", \"char_count\": \"38271\", \"text\": \"Beannon, Judge:\\nIn November, 1903, Joseph S. Reed began a suit in equity against the administratrix and heirs of Bachman, the Ves-pertine Oil Company and others. Numerous demurrers were filed by Bachman's representatives, and other defendants, relying upon want of equity in the bill, laches, staleness of demand and the statute of limitation. The bill was dismissed on demurrer, and Reed appeals.\\nAs appears from the bill in 1870, Paterson, Doutt and Braford conveyed a tract of 1500 acres of land in Pleasants county to Reed, Reno, Reeves and Bachman for the consideration of $5,500, of which $3,500 was paid cash, and for the residue Reed, Reno, Reeves, Bachman and Swope united in a deed of trust conveying the land to Hall, trustee. Swope was- not included in the deed, but intended to take a fifth interest. Reed advanced for Swope his share of the down payment, but Swope never repaid Reed in money. Soon after said parties acquired said land Reed, Reno, Reeves, Ba\\u00f3hman and Swope entered upon the manufacture of lumber from the timber on the land. Bachman was placed by the parties in exclusive management and control to carry on the work as trustee and agent of his cotenants. In the panic of 1873 the business failed and was abandoned. In July, 1874, Reeves conveyed his interest to Reed and Bach-man, and they made a deed of trust on the Reeves interest to secure payment of the purchase money going to Reeves. Reno transferred his fifth to Reed, but made him no deed for it. Reed claimed also the Swope interest, having paid for it. Reed claimed seven-tenths. Bachman is conceded to own his original fifth interest and half the Reeves fifth, making a three-tenths interest in the tract. In 1877 the Reeves fifth was sold under the deed of trust made by Reed and Bachman to secure Reeves its purchase money, and Cain and Doutt became1 purchasers, and took a deed from the trustee for said fifth, and a few days thereafter Cain and Doutt conveyed the said Reeves fifth to Bachman. Bach-man never paid any part of the purchase money on the original purchase. Reed paid more than his fifth. He paid fully his share of the deferred purchase money. A few days after Bachman had so acquired the Reeves fifth, Doutt, one of the creditors of the Reeves interest, and also a creditor in the original deed of trust given to Hall in 1870 by Reed and others, on the 1,500 acres to secure its purchase money, executed a release to Bachman releasing the lien as to two undivided fifths of the tract of 1,500 acres. A few days after this release sale was made by the said trustee under the trust deed given in 1870 on the 1,500 acres to secure its purchase money, the sale being the three-fifths of the said tract and Doutt became the purchaser, and took from the trustee a deed for the three-fifths, and a few days later Doutt conveyed said three-fifths to Bachman. Bachman has been in the sole exclusive possession of the land since about 1870, when the joint lumber business began. He went upon the land into a house built on it by the joint owners about 1870, and after the abandonment of the lumber business by the joint owners in 1873 Bachman remained in sole possession. From 1870 to 1885, when he died, Bachman was in sole possession, cutting timber from the land, using the land, taking all its rents and profits and rendering no account thereof. Since Bachman's death his widow and heirs have continued such possession,- taking the rents' and profits, leasing to various'ones for oil,' and they developing oil, and paying shares of it to the Bachmans, and the Bachmans rendering no account thereof. No'demand was ever made by Reed on Bachman or his heirs for an account of rents and profits. Reed resided in Pennsylvania, and as the bill states still trusting Bachman as his cotenant, agent and trustee in possession of the land and ignorant of the sales under the trust deeds until 1884. Reed had not seen Bachman from 1874 to 1884, and had had no communication with him. The bill says that in 1884 Reed met Bachman in Pittsburgh, and Bachman told Reed that in order to protect their joint interests he had certain' interests in the land sold under the deeds of trust, and had bought them in for the joint benefit of Reed and himself, and that Bachman by agreement with Reed then made was to remain in possession of the whole tract as Reed's cotenant and trustee and use and occupy the dwelling house in consideration of payment of all taxes. The bill says that Reed knew nothing of Bachman's death until the year 1900 or 1901. The bill states that when the lumber business failed Reed was without means of support from insolvency, and at the age of sixty years was beginning life over again, andpaid no attention to the land, because he regarded it valueless to him so long as he was without money to improve and cultivate it, and for the further reason that he had placed Bachman in full charge and control of the land as his agent and cotenant, and trusted implicitly to him to protect Reed's interest. The bill charges that Bachman derived from the land much money, amply sufficient to discharge the said deeds of trust, and more; the bill charges that Bachman had plenty of money in his hands belonging to himself and Reed to pay off the trusts, but that he refused to pay them in order to have sales made under them, so that he might buy in the land and hold it in sole ownership; that 'to that end he fraudulently and wrongfully colluded and conspired with the trustees under said \\u2022 deeds of trust, and with Doutt and Cain, purchasers under the sales under said trusts, to accomplish the end aforesaid. The bill states that Reed became embarrassed in 1873 and in 1876 made an assignment to Dick-en of his property, including his interest in this land, for the payment of his creditors; but that his other property discharged his debts, and that Dicken reconveyed his interest in this land to him by deed, 25th September, 1903. The bill further states that Bachman's heirs had by certain oil companies as lessees caused large quantities of petroleum oil to be taken from the land, and that large amounts of money had been received therefrom by said heirs in. the way of rentals and royalties, and by the lessees under the Bachman right, without any account therefor to Reed. The nature of character of the estates conferred by these leases is not specilied in the bill. The bill set up the title claim of Bachman, and claimed that the said purchases by Bachman derivatively from said trust deeds were for the common benefit of Reed and Bachman as cotenants, and that Bachman could not claim under them for his sole ownership, and prayed that Bachman's heirs and their lessees who had taken oil from the land be required to account for Reed's interest therein, and that the land be partitioned between him and Bachman's heirs according to their respective rights.\\nIn our conception of this case the question is, Is Reed barred by adverse possession under the statute of limitations? \\\"An actual ouster of one tenant in common cannot be presumed, except where the possession has become tor-tious and wrongful by the disloyal acts of the cotenant, which must be open, continuous and notorious, so as to preclude all doubt of the character of his holding or the want of knowledge thereof by his cotenant. This conduct must amount to a clear, positive and continued disclaimer and disavowal of his cotenant's title, and an assertion of an adverse right; and a knowledge of this must be brought home to his cotenant.\\\" Boggess v. Meredith, 16 W. Va. 1. \\\" The possession of one parcener is ordinarily regarded as the possession of all his coparceners, and such possession being subordinate and not adverse cannot, however long continued, operate as a bar to his co-parceners. A parcener in possession may disseize his coparcener; and from the time of such disseisin his possession will be adverse. Where one parcener occupies the common property notoriously as the sole owner, using it exclusively, improving it and taking to his own use the rents and profits, or otherwise exercising over it such acts of ownership as manifest unequivocally an intention to ignore and repudiate any right in his coparce-ners, such occupation or acts and claim of sole ownership will amount to a disseisin of his coparceners, and his possession will be regarded as adverse from the time they have knowledge of such acts or occupation and claim of exclusive ownership.1 It is the intention of the tenant or parcener in possession to hold the common property in severalty and exclusively as his own, with knowledge or notice to his co-tenants of such intention, that constitutes the disseisin. The notice or knowledge required must be actual, as in the case of a disavowal or disclaimer of any right in his cotenants; or the acts .relied on, as in the case of expulsion, making costly improvements and exercising exclusive ownership, must be of such an open notorious character as to be notice of themselves. \\\" Cooey v. Porter, 22 W. Va. 120. These old time doctrines have been uniformly held by this Court in many decisions, among them Justice v. Lawson, 46 W. Va. 163 and Cochran v. Cochran, 55 Id. 178. Parker v. Brast, 45 W. Va. 399, says: \\\"As the possession of one cotenant is the possession of all, laches, acquiescence, or lapse of time cannot bar the right of entry of a cotenant until the actual disseisin has been effected by some notorious act of ouster brought home to his knowledge.\\\" Upon these principles, and under the facts stated in this bill it is impossible to say that Reed's right has become barred by adverse possession. There has been no adverse possession. The parties were co-tenants and there has been no legal ouster. They started out as joint tenants in the year 1870. After several years of joint ownership, with Bachman in exclusive possession, Bachman acknowledged a continued joint tenancy with Reed, because in 1874 Bachman joined with Reed in acquiring the Reeves fifth interest. Thus he acknowledged the continued joint right in a most decisive manner. The two joint tenants, Reed and Bachman, united in acquiring the interest of a third joint tenant. Three years later Bachman acquired interests sold under the deeds of trust. Seven years after he had acquired such interests he met Reed and told him that he had caused the sales under the deeds of trust; admitted that he had caused such sales to be made; but stated to Reed that he had done so to save the interests of Reed and himself jointly, and had purchased for their joint benefit. Thus, a year before his death Bachman, in good faith to his brother tenant, admitted that brother's continued right, and Reed and he made the furth\\u00e9r agreement that Bachman should remain in possession of the land as he had done for years, and use it and keep the taxes paid. The law required Bachman, if he intended to claim to his exclusive ownership, to say so to Reed. Instead of doing that he expressly told him that he made no hostile claim acquired under the said deeds of trust sale. A year before Bach-man's death by this interview and contract for continued friendly possession Bachman lulled Reed into sleep and a feeling of security, and it would be a gross wrong and against law to allow Bachman or his heirs to have prevailed under the theory of ouster when there was no ouster, and when Bachman recognized Reed's right. Can it be said that Bachman's taking the rents and profits can operate as ouster? Such taking will not alone amount to ouster of one joint tenant by another; but the facts stated in the bill show that Bachman did not intend that his taking the rents and profits should so operate, because in 1884, by the conversation and contract stated, he conceded that his taking rents and .profits prior to that date had been without intent to set up adverse claim to the land; and by it also he agreed that his taking the rents and profits in future should not so operate, because such taking of rents and profits was but in pursuance of the agreement that their estate was one of joint ownership and that Bachman, should continue in possession and take the rents and profits and pay the taxes. And, moreover, by this agreement between Reed and Bach-man in 1884, as well as in 1870, Bachman agreed to hold in trust, made himself a trustee, if it were necessary to say so, as it is not, because he was a cotenant in joint tenancy, which is enough. A trustee cannot deny the trust and plead the statute without a disavowal of the trust with notice to the beneficiary. Nease v. Capehart, 18 W. Va 95. It will be seen from the law above quoted from West Virginia decisions that mere silent possession by one joint tenant, however long continued, will not work an ouster and cause the statute to bar another joint tenant. There must be some overt, open notorious act of a character to indicate an intention of adverse claim, so as to preclude all doubt of the character of his adverse holding, whereas taking profits by one cotenant in possession is but the exercise of a legal right, subject to-an accounting to another for his share. There must be clear, positive, continued disclaimer of his co-tenant's right and an assertion of his own adverse right. And that is not enough. Iiis cotenant must know of such adverse claim and tortious acts. He is not bound to inquire, because he can repose in confidence of his cotenant's good faith. That cotenant must notify him of his adverse claim, or at any rate, he must know of it. The burden is on Bachman to show that Reed knew of both the purchase and adverse claim under it. Buchanan v. King, 22 Grat. 414. No matter what the acts of one cotenant may be, whether by taking deed for the whole or by taking rents and profits, or what not. That will not do; for our decisions say with emphasis that such knowledge or notice of hostile claim on the part of the co-tenant must be shown. There is not a particle of appearance on the face of this bill, which we must take to be true on demurrer, that Reed, living in a distant place, had notice or knowledge of any adverse claim. The bill distinctly states that Reed had no such notice of any adverse claim by Bachmam. That would be enough to repel the idea of ouster. But, more than that, the bill states that in 1884 'Bachman told Reed that he had purchased the interests sold under the deeds of trust for their joint benefit and would continue in possession as cotenant and trustee and take rents and pay taxes, holding thus for the benefit of both. Thus an indispensable element to constitute ouster of one joint tenant by another is absent in this case, namety, notice or knowledge of adverse claim; on the contrary the bill states acts showing an assurance by Bachman to Reed of continued joint ownership. There was in fact no adverse claim to call for notice.\\nIn view of what has been said, there being no adverse claim under the deeds taken by Bachman from the purchasers under the deeds of trust, and no notice of adverse claim, but, on the contrary, a disavowal of adverse claim under them bjr Bachman, it is hardly necessary to advert to the principle that when .one joint tenant purchases an outstanding title to the common property, he cannot set it up against his cotenant, because the law makes the purchase for the benefit of the common title. This is spoken by many decisions. In Parker v. Brast, 45 W. Va. 399, it is held that where a cotenant permits the common property to be sold for taxes, and directly or indirectly secures the title in his own name, his deed will be avoided at the instance of his cotenant, or he will be held to be a trustee holding the title for their mutual benefit. The late case of Clark v. Beard, 59 W. Va. 669, so holds. For that additional reason Bach-man cannot set up a claim under those deeds, nor can his heirs. His heirs hold as he held; they hold under his contract of 1884, bound by it. Gilchrist v. Beswick, 33 W. Va. 168; 30 Id. 716; Forer v. Forer, 29 Grat. 134; 17 Amer. & Eng. Ency. L, (2d Ed.) 676.\\nBut it is- said that the creditor under one of those deeds of trust for purchase money made in 1870 released the lien of such deed as to Bachman's interest, and that would justify Bachman's acquirement of the title sold under the deed of trust. Plainty this is not so. The debt was common to all the joint tenants; they all owed, it; the land was the common property of all. What part of the land did that release ref er to ? What two-fifths? Not simply Bachman's. It only released the lien as to two-fifths of the entire tract, not any particular two-fifths. Why so? Because they were joint tenants. One of the unities of joint tenants is unity of title. Both Bachman and Reed held title. Another unity is that of possession. \\\" Joint tenants are said to be seised per my et per tout, by the half or moiety, and by all; that is, they each of them have the entire possession, as well of every parcel as of the whole. They have not, one of them a seisin of one half or moietjq and the other of the other moiety; neither can one be exclusively seised of one acre, and his companion of another; 'but each has an undivided moiety of the whole, and not the whole of an undivided moiety.\\\" 2'Blackstone's Commentaries, 182. Reed had in law possession of every inch and every acre, and Bachman had possession of the self same inch and acre. The release did not break the unities. It did not cease the joint tenancy. After it that joint tenancy remained the same as before. Hence, Bachman could not so purchase, as a stranger could, and' get rid of the rule that purchase by one joint tenant of an adverse claim affecting the common property, enures to the benefit of all. And that release was for the benefit of all. It was only a release, not a deed conveying title to Bachman. Reed's interest yet continues in the interests released.\\nIt cannot be said that Reed to get the benefit of Bachman's purchase must contribute to its cost. Bachman made no such demand in his interview with Reed in 1884. Besides Bachman had money in his pocket, derived from -the land, belonging to Reed to reimburse his outlay. Furthermore, before Reed could be said to have abandoned the benefit of the purchase it must appear, not only that he knew of it, but knew of \\\"an adverse claim set up by his co-tenant. He may reasonably presume that the purchase was to support, not defeat, the common title.\\\" Cecil v. Clark, 44 W. Va. 660. He may be in debt for contribution, but the purchase does not constitute ouster and hostile possession. And for whose debt were the deed of trust sales made? Bachman's. Reed had, paid his share of the debts, Bachman none. The idea is not to be tolerated that Ba\\u00f3h-man could hold against Reed under a sale made for Bachman's debt. He caused the \\u2022 sale by his non-payment of his own debt. Could he in a court of equity take advantage of his own wrong? Reed could-say \\\"I did not cause the sale, you did.\\\" Freeman on Cotenancy, section 158, says that where the cotenant purchasing at a sale is himself in default for not making payment there is no doubt that' his purchase cannot be enforced against his companion, except for fair contribution. Purchase at a tax sale by one under duty to pay the taxes, is only payment. The purchaser gets no estate against the owner. Williamson v. Russell, 18 W. Va. 613.\\nAnd then there is another consideration repelling adverse claim to Bachman on the title acquired under the deed of trust sales. It has been a question whether a purchase by one joint tenant of the entire property, and entry into possession under it, is an ouster; but all admit that \\\"a conveyance alone, without possession taken under it can never amount to an ouster.\\\" Ereeman, Cotenancy, section 226. So holds Hannon v. Hannah, 9 Grat. 146. Now, Bachman never made any fresh entry under these deeds, but simply continued on as before. And moreover, he did not purchase the whole, but only an undivided interest, and being owner of other interests he would be presumed in law, if he had for the first time entered 'after his purchases, to have entered under his own former interests. Martin v. Thomas, 56 W. Va. 220; Prescott v. Neavers, 4 Mason C. C. 330; Culler v. Motzer, 13 Serg. & R., 359. But why speak of this when Bachman was already in possession and took no new possession after his deeds? It.is like the doctrine of part performance under oral contract. The purchaser's possession must be clearly under and in execution of the contract. No prior possession will do. Putting a tax deed for the whole tract on record is no ouster of a cotenant unless he knows of the adverse claim. Cocks v. Simmons, 29 Am. St. 28. In this connection I will remark that any purchasers or lessees under Bachman or his heirs would likewise be bound by the rule that when Bachman purchased from the purchasers under the trust deeds he purchased for the benefit of the common title. Every one must look back and notice things in the chain of title under which he acquires. Williamson v. Jones, 43 W. Va. 562. .The original' deed showed that it was a joint tenancy and the deeds of trust were made by joint tenants, and Bachman's title under purchases .under the deeds of trust came from that source, and persons acquiring rights under Bachman must know the law, and it would constitute notice of the rights of a coton ant. For these reasons, there can be nothing in the claim that Reecl is barred by the statute of limitation. And it does not appear from the bill that they were complete purchasers or how they became such purchasers, whether by oral or written executory contract, or by deed of conveyance.\\nLaches and staleness of demand. Manifestly this defense does not apply to the case. If Reed's right is not lost by the statute, it is not lost by laches. Waldron v. Harvey, 54 W. Va. 608. But I have said that laches has no application in this case. Why? Because Reed was a joint tenant with Bachman. We have seen from lary quoted above that the possession of one joint tenant is the possession of another, and that no mere silent possession by one for any length of time will alone devest the right of a brother tenant; that brother tenant may be in any part of this earth distant from the land, and he may repose in silence and confidence that his fellow's occupation will not destroy his right. He may assume this and sleep in composure. It is for the occupying tenant to let Mm know that he claims in hostility. The burden of showing this rests on him. Diligence is not required of the absent brother. Where there is a deed procured by fraud and mistake, for instance, diligence after notice is required, and suit must soon be brought; but not so as to joint tenants. That brother is put by the law under no duty of inquiry or diligence. If he chooses to let a cotenant retain possession and take the profits, he can do so. He is guilty of no negligence if he does not inquire. He may sleep in restful confidence of the good faith of his cotenant under the law of cotenancy. A co-tenant cannot lose his right by mere silence. That does not show acquiescence in loss of his estate. Justice v. Lawson, 46 W. Va. 163.\\nIt is suggested that there is no jurisdiction in equity; but I do not think it is seriously suggested. This is a suit for partition. Secondly, it is a suit by one joint tenant against another and those acting under him for an account of rents and profits, and it is very well settled that one cotenant can go into equity to make another cotenant liable for taking more than his share of the profits while occupying the whole of the common property. Rust v. Rust, 17 W. Va. 901. And a person who has without lawful right, under one cotenant, taken oil may be held accountable therefor in equity. Williamson v. Jones, 43 W. Va. 562. Thei'e is no question of equity jurisdiction.\\nOur decision is to reverse the decree, overrule the demurrers to the bill, and remand the case with leave to answer,^and for further proceedings.\"}"
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+"{\"id\": \"8630881\", \"name\": \"Norvell v. Kanawha & Michigan Railway Co.\", \"name_abbreviation\": \"Norvell v. Kanawha & Michigan Railway Co.\", \"decision_date\": \"1910-05-03\", \"docket_number\": \"\", \"first_page\": \"467\", \"last_page\": \"474\", \"citations\": \"67 W. Va. 467\", \"volume\": \"67\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T00:03:25.048064+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Norvell v. Kanawha & Michigan Railway Co.\", \"head_matter\": \"CHARLESTON.\\nNorvell v. Kanawha & Michigan Railway Co.\\nDecided May 3, 1910.\\n1. Carkieks \\u2014 Injury to Passenger on Platform, \\u2014 Negligence.\\nIt is negligence in a passenger, under ordinary circumstances, 'to stand upon an open platform of a rapidly moving railroad car. If one voluntarily and unnecessarily takes such position and is injured in it lie cannot recover damages.\\n2. Same \\u2014 Passenger Riding an Platform \\u2014 Negligence.\\nTo ride on a car platform is not always a negligent act. If the train is so crowded that one cannot reasonably enter a ear, it is not negligent to ride on the platform when the carrier acquiesces in the use of such accommodations by collecting fare for the same or some other indicative act.\\n3. Same \\u2014 Carriage of Passengers \\u2014 Duty Towards Passenger Riding on Platform.\\nThe carrier owes to a passenger unvoluntarily, necessarily and rightfully riding on the platform the high degree of care commensurate with the circumstances and its act m undertaking to carry him there.\\n4. Same \\u2014 Injury to Passenger on Platform \\u2014 Negligence.\\nInjury to a passenger while excusably riding on the platform because of the overcrowding of the train usually constitutes a prima facie case of negligence on the part of the carrier.\\n5. Same \\u2014 Carriage of Passengers \\u2014 Duty Towards Passenger Riding on Platform.\\nThe liability of the carrier to one excusably riding on the platform is not absolute. If it used reasonable diligence to provide cars for his safe carriage, and, with fair excuse for failing to provide them, exercised the increased care demanded by the passenger\\u2019s enforced position on the platform, it is not liable for injury to him.\\n6. Same \\u2014 Carriage of Passengers \\u2014 Injury to Passenger on Platform \\u2014 -Liability of Carrier.\\nIf a railroad company negligently and unreasonably fails to provide sufficient cars so that passengers are compelled, to ride . on the platforms and then accepts passengers for carriage in such hazardous places, it is liable for damages to one injured therein, unless he has contributed to the injury by negligence on his pari.\\n7. Same \\u2014 Liability of Carrier for Conductor\\u2019s Acts.\\nThe conductor of a train-represents the railroad company in relation to the transportation of passengers on his train, and his acts in receiving and carrying passengers on the platforms when the train is overcrowded binds the company.\\n8. Tjsiai. \\u2014 Direction of Verdict.\\nThe court cannot properly direct a verdict in a case turning on a conflict of evidence which makes the material facts so doubtful that a verdict for either party would be sustained.\\n9. Release \\u2014 Release Executed Through Fraud.\\nA written release or acquitance of a claim for personal injury will not sustain a plea of accord and satisfaction in the premises if its execution was obtained by deception and fraud.\\nError to Circuit Court, Mason County.\\nAction by J. C. Norvell against the Kanawlia & Michigan Eailway Company. Judgment for defendant, and plaintiff brings error.\\nReversed, and New Trial Granted.\\nCharles E. Hogg and Somerville & Somerville, for plaintiff in error.\\nBrown, Jackson <& Knight, for defendant in error.\", \"word_count\": \"3022\", \"char_count\": \"17699\", \"text\": \"EOBINSON, PRESIDENT:\\nNorvell, the plaintiff, riding on a platform of a crowded train, fell therefrom and was injured. He sued the railroad company for damages. The company defended upon the ground that there was no negligence oh its part; that plaintiff's injury was caused by his own negligence; and that, at any rate, full accord and satisfaction for the injury had been made. The case came on for trial and all the evidence was adduced before the jury. The defendant moved the court to direct a verdict in its favor. The motion was granted, verdict for the defendant was returned, and judgment upon the same was entered. The plaintiff asks a reversal of that judgment.\\nWas the ease one for jury determination?' It is contended that the evidence was conflicting and that therefore the case should have been submitted to the jury. The pleadings made the case to involve two main inquiries \\u2014 whether negligence on the part of defendant in the overcrowding of its cars caused plaintiffs injury, and, if so, whether accord and satisfaction therefor had been made. -A conflict of evidence as to each of these propositions is claimed.\\nIt is negligence in a passenger, under ordinary circumstances, to stand upon an open platform of a rapidly moving railroad car. If one voluntarily and unnecessarily takes such position and is injured while there he cannot recover damages. His contributory negligence bars recovery. ' But to ride in such place is not always a negligent act. Whether it is negligent to ride on the platform may depend on circumstances. If the train is so crowded that one cannot reasonably enter a car, and no safer place on the train is reasonably obtainable, it is not negligent to ride on the platform when the circumstances thus forces the'passenger to do so and the carrier acquiesces in the use of such accommodations by collecting fare for the same or by some other indicative act. What other choice has a passenger but to- ride on the platform 'when the carrier, negligently or unavoidably, fails to provide safer accommodations for him ? Must he forego his journey and the engagements dependent upon it, or his return to home at the expected time? It is not reasonable to say that he is obliged to do so. ' He may accept such \\u2022 accommodations when they are the best offered to him and rely upon the carrier to take the greater care and diligence in transporting him which are commensurate with the increased dangers of the situation in which it has placed him as a passenger. The carrier's duty to him in such situation is to use the high degree of care which its act in undertaking to carry him on the platform demands. If it fulfills that duty, and is free from negligence in other particulars, it may be absolved from damages if he is injured. Its liability for injury to him in the premises is not absolute. But injury to him in such dangerous situation, if hd is obliged to take that place of carriage for want of a safer one, may make a prima facie case of liability. The liability will not exist, however, when the carrier shows that it exercised reasonable diligence to provide cars for-his safe carriage, and, with a fair excuse for failure to provide them, used the increased care demanded by the lack of a safer place for his transportation. Nor will the liability exist' when it appears that the passenger, by not conducting himself with the care and prudence which his position on the platform required, did that which was the proximate cause of his injury. Baldwin on American Railroad Law, 309; Moore on Carriers, 856; Hutchinson on Carriers, (3d Ed.) sections 1197, 1198; 6 Cyc.'623, 653.\\nIf a railroad sees fit to earn a revenue by offering to the public hazardous accommodations on the platform, why should it not assume liability for the dangers incident to its own act in so doing? In justice and reason it must do so, unless it shows that it- provided the best accommodations that it could under all the circumstances attending the running of its train and then exercised the degree off care that it owed to those it undertook to carry in those accommodations. This is neither a- strict nor an unjust rule. If the carrier is taken unawares by unusual and unexpected demand for passage and has not safe accommodations to offer, it may justly and without liability'decline to take on board more than the room within its cars will admit. The conductor in charge of the train may refuse to receive passengers that by reason of unavoidable circumstances cannot be given safe places of carriage. To do this is surely within the line of his authority. He is in charge, of the train and must necessarily represent the carrier .in the transportation of passengers thereon. On the other hand, when he permits passengers to ride on the platform because there is no room for them inside, and recognizes them as passengers and not trespassers by accepting fares for such carriage, or by doing some other act indicative of the fact, he also indeed represents the company. It is within the line of his duty and authority, and he binds the company by the act. Baldwin on American Railroad Law, 311. What weight can be given the notice which is usually posted on the ears that \\\"passengers are not allowed to stand on the platform\\\" if in fact passengers are allowed to stand there for the convenience- of the company ? Surely none. The company waives this notice and the rule which it recites when, fox its own convenience and gain, it receives passengers as sneb on tbe platform \\u2014 uses tbe platform to earn a revenue. It is nonsensical to give force to such rule when tbe company does not enforce tbe same, but violates tbe rule for its own purposes. Of course tbe question whether in a particular case tbe rule is violated for tbe convenience or gain of tbe carrier is always an important question to be considered and determined.\\nA railroad company knows .the usual amount of travel on any one of its trains. Tbe sale of tickets, and tbe reports by the conductor or train auditor give it accurate basis of information upon which it can furnish cars to meet all usual demands for passage. And when it is advised of an occasion that will make'demand upon any of its trains for more than tbe usual accommodations, it owes a duty to tbe public to take reasonable precaution to furnish tbe same. Particularly is this so when' excursion occasions are advertised by tbe railroad company and excursion tickets sold. If it is made to appear that an overcrowding of ears was so great that passengers were compelled to ride on tbe platforms, that tbe lack of sufficient room was due to tbe negligence of the company itself, that the passengers were accepted for carriage on tbe platforms, and that such conditions and acts caused injury to a passenger, why should not the company be liable in tbe premises ? Kailroad companies seek and demand much from tbe public. They are entitled to tbe goodwill and fair consideration which tbe people through right views and just laws should always give them. They are tbe great commercial arteries which indeed feed our prosperity and give life and vitality to our riches and comfort. But they owe a reciprocal relation to the public. They are in duty bound to render good and reasonable service and at all times to refrain from neglect, carelessness and imposition in their operations. They peculiarly owe a duty to provide safe and sanitary accommodations for passengers \\u2014 to refrain from imposing conditions that cause the inconvenient and dangerous overcrowding of trains and the unhealthy and barbarous use of filthy stations.\\nSince it depends upon the circumstances of each particular case whether the act of a passenger in using the platform as a place of carriage is negligence on his part, the question is usually one for jury determination. 6 Cyc. 654. It is always a question for the jury, and is not determinable by file court as a matter of law, when circumstances reasonably excusing tbe passenger for riding there are not admittedly shown. If the alleged necessity for riding on the platform is based on an overcrowding of the train and evidence supporting the fact of overcro'wding is' introduced which is met with other evidence tending to disprove the fact, a conflict is presented which it is the province of the jury to settle. Again, if there are conflicting facts and circumstances in relation to the excuse of the carrier for its alleged failure to provide ample places of safe carriage, or in relation to the degree of care which it used for the transportation of one necessarily on the platform, the jury should pass upon them. It is the province of the jury to pass upon conflicting oral testimony of witnesses which is given in their presence, and that province should not be invaded. 'But when the evidence, though orally given in the presence of the jury, and though conflicting as a whole, embraces uncon-tradicted facts or circumstances which cause the case admittedly to turn in favor of one of the parties so that a verdict against him would be set aside, the court may properly direct a verdict in his favor. The court cannot properly direct a verdict, however, in a ease turning on a conflict of evidence which makes the material facts so doubtful that a verdict in favor of either party would ba sustained. Ketterman v. Railroad Co., 48 W. Va. 606; White v. Brewing Co., 51 W. Va. 259; Coalmer v. Barrett, 61 W. Va. 237; and other cases.\\nNow, in the case before us, the first pertinent inquiry in relation to the alleged negligence of the railroad company is whether a safe place of carriage was provided for plaintiff. Was plaintiff, as he claims, compelled by insufficient passenger accommodations to ride on the platform? Or, did he voluntarily and unnecessarily ride there so that his own act in thus doing was the proximate cause of his injury? Then, if the overcrowding was so great that plaintiff was excusable for talcing passage on the platform, was that overcrowding the fault of the railroad company in failing to provide ample accommodations? Or, was the overcrowding so unexpected and unusual that provision reasonably could not be made to prevent it? Did the company accept and receive plaintiff as a passenger on the platform of its train for lack of space in the cars ? If so, and if it was excusable \\u2022therein, did it then exercise the degree of care that was due. to plaintiff in tlie hazardous position in which he was permitted to ride ? Beadily is it to be seen that a charge of negligence involving so many questions of fact must make, in practically every instance, a case fo.r the jury. The determination of any of these questions would usually and naturally turn upon a mass of conflicting facts and circumstances. So it is in this case. A substantial conflict of testimony is involved. No decisive facts are so admittedly shown as to make the general issue.determinable as one of law, Many facts and circumstances tend to prove that plaintiff made a reasonable effort to enter the cars, that he was prevented by the overcrowding from doing so, and that he was thus compelled to ride on the platform. Other facts and circumstances tend to prove that there was ample room in the cars and that he took passage on the platform from choice. If this primary issue should be determined in favor of plaintiff, then conflicting facts and circumstances appear which must be settled in order to determine whether the company was negligent by an inexcusable failure to provide ample cars; and, if not so negligent, whether it then failed to take the degree of care that it owed plaintiff because of the unsafe position in which he was obliged, through unforeseen and unavoidable circumstances, to ride. It is not our purpose to multiply words by a recital of the particular facts pertaining to this case. It suffices to say that witnesses as to controlling facts and circumstances on the proposition of negligence are in direct contradiction.\\nTo. support its plea of accord and satisfaction the defendant railroad company introduced a receipt for seventy-five dollars, signed by the plaintiff, which recites in substance that the sum is paid by the company and accepted by plaintiff in full payment of any liability for his injury. Plaintiff admitted that the signature thereto is his own. He, however, introduced evidence tending to prove that he was deceptively induced to sign the receipt by -representatives of the company, at a time when he was in the hospital suffering from the injury, lying on his back, with his senses deadened by pain and narcotic medicines; that he 'was made to understand and believe that the company was gratuitously giving him the amount for the purpose of paying the hospital charges and for none other; that the paper which he was asked to sign was falsely represented to him as a check for that purpose; and that the paper was so folded when presented to his reclining position for signature that he was deceived, excusably on his part, as to its real character and purport. The evidence' of his witnesses in this behalf is flatly contradicted by the company's physician, in whose hospital he was, and who was present at the time the receipt was obtained. Thus we have a conflict of testimony in this branch of the case also. If the paper was obtained by deception and fraud it cannot sustain the plea of accord and satisfaction. If the receip't was fraudulently obtained it is no bar to this action. 24 Amer. & Eng. Enc. of Law, 308, 309. While it is admitted that plaintiff did not read the paper before signing it, yet there is evidence tending to prove that he used as much prudence and circumspection as a man ordinarily would under the circumstances stated as existing at the time. Whether he did exercise such prudence and circumspection, whether he was incapacitated so that he was thrown off his guard, were questions to be determined by the jury. The disputed questions of fact relating to the validity and binding force of the terms of the-paper claimed to be a release should have been submitted to the jury under proper instructions by the court as to the law in the premises.\\nThe ease was improperly taken from the consideration of the jury. It involved in its material points such disputed questions of fact that a ease was not presented for the court's action in directing a verdict.' Jury trial in cases to which it rightly belongs is sacredly guaranteed to all. \\u2022 This fundamental -right must not be curtailed. -The judgment will be reversed, the verdict set aside, and a new trial granted.\\nReversed and New Trial Granted.\"}"
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+"{\"id\": \"8631424\", \"name\": \"Burton v. War Eagle Coal Company\", \"name_abbreviation\": \"Burton v. War Eagle Coal Co.\", \"decision_date\": \"1915-12-07\", \"docket_number\": \"\", \"first_page\": \"319\", \"last_page\": \"324\", \"citations\": \"77 W. Va. 319\", \"volume\": \"77\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T19:04:11.101060+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Burton v. War Eagle Coal Company.\", \"head_matter\": \"CHARLESTON.\\nBurton v. War Eagle Coal Company.\\nSubmitted November 30, 1915.\\nDecided December 7, 1915.\\n1. Master and Servant \\u2014 Assumption of Bisk \\u2014 Miner.\\nWhere an adult miner, skilled and intelligent, sees, understands and appreciates that the place in which he is requested to work by another servant is dangerous and unsafe and that what he is requested to do will render the place continually more dangerous, if he elects to - continue at work in such place he assumes all risk of personal injuries resulting therefrom and thereby negligently contributes to his injuries, precluding recovery therefor against the owner of the mine. (p. 320.)\\n2. Same \\u2014 Injury to Miner \\u2014 Contributory Negligence \\u2014 Assumption of Bisk \\u2014 Excuse.\\nNor will the promise of the owner, or of an unauthorized agent or co-worker, to furnish props in a reasonable time, or to make or assist in making the place safe, excuse his negligence in remaining and working in such dangerous place, and give him right of action against the owner for consequential personal injuries, (p. 320).\\n(Lynch, Judge, absent.)\\nError to Circuit Court, Mingo County.\\nAction by Samuel Burton against the War Eagle Coal Com-. pany. From judgment for plaintiff, defendant brings error.\\nReversed and entered here.\\nAnderson, Strother, Hughes & Curd and Sheppard, Goody-lioontz & Scherr, for plaintiff in error.\\nWiles & Bias, for defendant in error.\", \"word_count\": \"2203\", \"char_count\": \"12259\", \"text\": \"MillbR, Judge:\\nAction for personal injuries sustained by plaintiff from falling slate while employed in defendant's coal mine.\\nAfter plaintiff rested and defendant had also put in its evidence it demurred to plaintiff's evidence, and the jury rendered a conditional verdict in favor of plaintiff for seven thousand dollars.\\nFrom the judgment below on the demurrer to the evidence, in favor of plaintiff, and that he recover of defendant the sum so found by the jury with interest and costs, defendant sued out this writ of error.\\nThe declaration, we Ihink, good on demurrer, and that we need not further respond to the points of error made in relation thereto.\\nSection 24, chapter 15IT, serial section 483, . Code 1913, makes, it one of the statutory duties of the mine foreman, and, as construed by this court, a fellow servant of those employed in the mine, to see to it \\\"that all loose coal, slate and rock over head in the working places and along the haul Avays be removed or carefully secured so as to prevent danger to persons employed in such mines; and that sufficient props, caps and timbers, as nearly as possible of suitable dimensions, are furnished for the places where they are to be used, and such props, caps and timbers shall be delivered and placed at such points as the rules for the government of each respective mine provide for them to be delivered; and every workman in want of props, cap pieces and timbers shall notify the mine foreman, or such other person who may be designated for that purpose, at least one day in advance giving the length and number of props or timbers and cap pieces he requires; but in case of an emergency the timbers may be ordered im mediately upon the discovery of any danger; and it shall be the duty of each miner to properly prop and secure his place in order to make the same secure for him to work therein. ' '\\nAnd such being the statutory duties imposed on the mine foreman and miners, it is conceded that unless there is something alleged and proven in this case to take it out of the general rule, any failure to make the mine safe in the particulars covered by this statute, would be the negligence of the miner, or mine foreman, a fellow servant, and for which the master is not liable.\\nTo bring this case within the rule \\u00f3f our cases of Gartin v. Draper Coal & Coke Co., 72 W. Va. 405, and Sprinkle v. Big Sandy Coal & Coke Co., Id. 358, the same as that announced in Wolcutt v. Erie Coal & Coke Co., 226 Pa. St. 204, 75 Atl. 197, plaintiff undertook by allegation and proof to show that Coffey, the mine foreman, was also general superintendent, occupying inconsistent positions, as declared in those cases, and not eligible or competent as a strictly statutory mine foreman, and that because of its neglect to discharge its duty to employ a competent and eligible mine foreman his negligence is imputable to the defendant so as to render it liable for the injuries sustained by plaintiff on account thereof.\\nAnother of plaintiff's theories is that he was working under one Lambert, who had a contract with defendant, through its superintendent, to load and deliver coal to the parting in the mine, and that the mine foreman's duties to aid in making the mine safe as to overhanging slate, rocks, etc., by supplying props, etc., had been delegated to Lambert, not a competent mine foreman, and that for this reason the defendant was guilty of a breach of duty under the statute, as so construed in the cases cited, and was liable for the consequential injuries to plaintiff.\\nAs disclosed by the evidence, however, there seems to have been no negligence either on the part of the defendant or the mine foreman.in failing to supply timbers or props. The mine foreman says there were several props in the room where plaintiff was hurt, and that there were plenty of other props at the parting. Though plaintiff says he did not see any props in the room, he does not say positively that none were there. He admits there were props at the parting, and Lambert, his co-worker, and he had the means, a car and a mule, to get the props into the room. What duty then did the defendant owe them that it had not performed? It was not the defendant's duty, or that of its mine foreman, but the acknowledged duty of the miners, as they progressed with their work to set the props and make their working places safe.\\nBut we have concluded that it is unnecessary to go into these and numerous other questions presented by able briefs of counsel, for assuming negligence on the part of defendant, in the particulars referred to, contributory negligence and assumption of risk by plaintiff, a skilled and intelligent miner, after seeing, understanding and fully appreciating the danger to which he was subjected immediately before the slate or stone fell upon him, constitutes a complete defense to his action.\\nBoth these defenses, we think, are fully supported by plaintiff's own account of the situation in the mine, his own conduct there, and the manner in which he sustained his injuries. In answer to questions he said: \\\"A. There was some coal loose and slate already loose down, and we threw out that and loaded up what was around loose and then we loaded the car about two-thirds and we had got what loose coal there was and then we had to either dig or shoot it, and I decided on digging the coal, but I was afraid of this slate, I was satisfied that when I went to picking the top would go to working, and I wanted, to get that slate without digging, and I examined the slate and it seemed to be solid, and there is where the damage was, when I went to digging in the coal. Q. You say you were .satisfied that when you went to digging on this pillar that the top would go to working? A. There wasn't any timbers set, you know, and there is where the top, of course, will come down if a fellow gets to working and' I wanted to try to get that place timbered and that is where we wanted it. Q. You knew if you went to working on the pillar that the top would begin to work? A.. Personally, of course, it is like anything else you take, it is bound to be heavy. Q.. You knew that if you dug on that pillar that the top would begin to work ? A- Why, of course it will work; we all know that. Q. And you said a while ago that you were satisfied that it would work; that you were satisfied that if you dug on that pillar it would go to working, the top would begin to work; didn't you say that to the jury? A. Why, yes, I said that. Q. Apd you stick to that, don't you? I say you said that and you stick to that statement, don't you? A. Sure. Q. You knew that if you dug on that pillar and let the coal down that that top would come down, didn't you? A. Why, to some extent. I said it would go to working. Q. What do you mean by the top would go to working \\u2014 get loose? A. Get loose, I reckon. That is all I know about it. Q. You knew that if you dug out the coal out of that pillar, dig down in the pillar, that that would let down the top, didn't you? A. Sure.\\\"\\nBut it is contended that plaintiff cannot be charged with having assented to risk the dangers because of the extraordinary character thereof, and because props were promised by Lambert within a reasonable time, and being thus assured of a safe place, or the means of making it safe, he had the right to continue to work without assuming the risk of personal injuries. If defendant had been proven guilty of any negligence contributing in any degree to the injuries sustained there might be some basis for this contention. Lambert was not authorized by defendant to direct plaintiff to work in a dangerous place in the mine, or to continue working there without making it safe with props. No notice had been given to the mine foreman that props were needed or demanded, and, as we have seen, props were near at hand in the mine to make the working place safe. A safe place to work in a mine where the miners are at work and continually changing the conditions means, under our law, a safe place in the first instance. The owner is not an insurer against personal injuries in the mine. He cannot by himself or agent be present every moment to see that the miners do their duty to prop the roof as they progress at the face of the coal. True it is the duty of the mine foreman to perform the duties imposed upon him, and of the owner when required to provide the material as the law requires, but the miners also have duties to perform for their own safety. We have decided that a miner who takes orders from one not in authority cannot hold the owner responsible for personal injuries sustained in executing such unauthorized order, so that if Lambert did direct plaintiff to work in an unsafe place, being unauthorized, the defendant cannot be rendered liable for his act. In accepting orders from him plaintiff assumed the risk. McMillan v. Coal Co., 61 W. Va. 531; Dwyer v. Raleigh Coal & Coke Co., 68 W. Va. 741.\\nWas plaintiff guilty of contributory negligence? It follows that if he knowingly continued to work in a dangerous place, and by what he did, rendered it still more dangerous, he negligently contributed to his injuries precluding recovery. But it is said in rebuttal of this plain proposition that he was justified in remaining and working in the dangerous place by the promises of Lambert, representing the defendant, to make the place safe. This upon the principles of Parfitt v. Sterling Veneer & Basket Co., 68 W. Va. 438, 69 S. E. 985; Hesson v. Penn Furniture Co., 70 W. Va. 141. These decisions are inapplicable to cases involving safety if the place to work is constantly changing and being rendered more dangerous by the work being done by the servant. As held in those cases a servant may in some instances remain at work on request of and promise by the master to make repairs, or put the place in a safe condition in a reasonable time. But how could we apply those cases to cases like this, where every stroke of the servant is likely to pull the house down upon his head? Cases of this kind are governed by the exception to the general rule noted in Miller v. Berkeley Limestone Co., 70 W. Va. 643, where we said: \\\"The general rule which obliges the master to furnish his servant a reasonably safe place in which to work, does not apply to a quarry where the work to be done necessarily changes conditions and renders the place more or less dangerous as the work progresses.\\\" Plaintiff's own evidence fits his case into this exception to the general rule, and must defeat any recovery by him against the defendant.\\nThe judgment below must, therefore, be reversed, and judgment entered here on the demurrer to the evidence, for .defendant, and that plaintiff take nothing by his actidn, and that defendant recover its costs in this court as well as those incurred in the circuit court herein.\\nReversed and entered here.\"}"
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+"{\"id\": \"8631540\", \"name\": \"State v. Bailey\", \"name_abbreviation\": \"State v. Bailey\", \"decision_date\": \"1908-02-25\", \"docket_number\": \"\", \"first_page\": \"668\", \"last_page\": \"677\", \"citations\": \"63 W. Va. 668\", \"volume\": \"63\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T18:49:19.099838+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Bailey.\", \"head_matter\": \"CHARLESTON\\nState v. Bailey.\\nSubmitted February 18, 1908.\\nDecided February 25, 1908.\\n1. Laecbny \\u2014 Indictment\\u2014Description of Stolen Property \\u2014 Sufficiency.\\nIt is not necessary to the sufficiency of an indictment, charging larceny, to describe the stolen articles by reference to any mark of identification by which they can be distinguished from others of the same, or a similar, kind. (p. 672.)\\n2. Same \\u2014 Taking\\u2014Under Claim of Bight.\\nIf a person take property of another under an honest belief of right in himself to do so, he is not guilty of larceny thereof, even though he took it with knowledge of the adverse claim of such other person, and his own claim ultimately prove to be untenable, (p. 672.)\\n3. Same \\u2014 Questionfor Jury.\\nWhether a claim of right under which property has been so taken was tona fide or only pretended is generally a question of fact for the jury. (p. 672.)\\n4. Same.\\nFacts and circumstances indicating lack of confidence in the claim of right under which property has been taken and carried away, and determination to defeat the adverse claim by putting the property beyond the reach of legal process, such as concealment, disposition or destruction thereof, tend to prove lack of good faith on the part of the taker, (p. 672.)\\n5. Criminal Law \\u2014 Parties to Offenses.\\nThere can be no crime without a perpetrator, nor an accessory without a principal, (p.673.)\\n6. Same \\u2014 Principals in First Degree \\u2014 Commission of Offense by Innocent Agent \\u2014 \\u2018Principal. \\u2019 \\u2019\\nIf a person with felonious intent, through the instrumentality of an innocent agent, cause a crime to be committed, he, and not the-agent, is the principal, and is punishable accordingly, although he was not present at.the time and place of the offense either actually or constructively, within the meaning of the law of aider and abettor, operative between principal and accessory before the fact. As between him and the innocent agent, there is no such relation. He alone is the guilty party, (p. 673.)\\n7. Same \\u2014 Prosecution of Principals and Accessories.\\nUnder such circumstances, an exception to the rules applicable to principals and accessories, in the trial of criminal cases, arises ex necessitate legis. (p. 673.)\\n8. Same \\u2014 Accessories Before the Fact.\\nIf the actor, the person who performs the manual act incident to-the crime, had felonious intent in the performance thereof, or knew the act was criminal, he is a principal in the first degree; and the person at whose instigation he acted is either a co-principal in the first degree or a principal in the second degree, if he was actually or constructively present, but, if not present in either sense, he is an accessory before the fact. (pp. 673, 674.)\\n9. Same \\u2014 Question for. Jury.\\nOn the trial of one charged with having committed a crime through the instrumentality of an innocent agent, the guilt or innocence of the latter is a question for the jury, if there is evidence tending to prove criminal intent on his part. (p. 675.)\\n10. Same \\u2014 Instructions\\u2014Misleading.\\nIn such case, instructions to the jury, which, by reason of generality and indefiniteness, warrant the finding of guilt in both parties are misleading and improper, (p. 676.)\\nError to Circuit Court, Mingo County.\\nHalsey Bailey was convicted of larceny, and he brings error.\\nReversed. Remanded.\\nSteotheR, TayloR & Flanagan and Marcum & Marcum, for plaintiff in error.\\nClarice W. May, Attorney General, for the State.\", \"word_count\": \"3825\", \"char_count\": \"21921\", \"text\": \"POFEENBARGER, PRESIDENT:\\nOn his writ of error to a judgment of the circuit court of Mingo county, imposing upon him a sentence of two years imprisonment, for the larceny of four barrels of whiskey, Halsey Bailey assigns, as error, among other things, the overruling of his demurrer to the indictment, founded upon the lack of averment therein of any mark or number on the barrels by which they could be distinguished from others of the same or similar kind. The objection is not tenable. Under State v. Huff 31 W. Va. 355, the indictment is good. It charges the larceny of \\\"four barrels of whiskejr of the value of $300.00 of the goods and chattels of Sig Freiberg and Sol H. Freiberg.\\\" The case cited held it sufficient to charge the larceny of \\\"one keg of wine of the value of $15.00 of the goods and chattels of J. W. Hale.\\\" See also Bishop's New Crim. Pro., Vol. 11, section 700.\\nThe prisoner was jointly indicated with three other persons, G. G. Mabe, Joe Staley and Everett Atkinson, but, on his election, was tried separate^. Practically all of the other assignments of error, relating to the admission and rejection of evidence, instructions to the jury, given and refused, and the motion to set aside the verdict, depend upon the legal principle applicable to the facts proven and to the establishment of which the evidence tends. In other words, if, from the facts, the jury could properly have inferred that the prisoner was a principal in the first or second degree, some of the rulings complained of are correct, and others wrong; but, if, as matter of law, he was only an accessory before the fact, the rulings are all wrong and the evidence does not sustain the verdict.\\nThe following material facts might be found from the evidence: Sig and Sol H. Freiberg had thirty barrels of whiskey in the bonded warehouse of the Tug River Distilling Company at Williamson, Mingo county, on which they had paid the internal revenue tax at the rate of $1.10 per gallon, and four of which were hauled away by one James Blackburn, an employee of the Mingo Light and Ice Company, by direction of White Atkinson, one of the proprietors of that concern, pursuant to a request of the prisoner that he take them into his possession and care. At that time, the distilling company was in the hands of a receiver, and there was a controversy, between the receiver and the Freibergs, concerning the title of the property or the right of the latter to remove it. The prisoner was the president of the distilling company and, as such, was interested in the controversy. Blackburn left one of the barrels at a saloon owned by one Frank Meeks and took the others to a pop factory adjoining the Mingo Light & Ice Company plant, both of which concerns were owned and controlled by said Atkinson and his two brothers, Everett and George, and the team with which he hauled the whiskey away belonged to the Mingo Light & Ice Company. Meeks bought the barrel of liquor, left at his place, from Everett Atkinson at the price of $45.00, but, on discovering that it was claimed by the Freibergs, he refrained from opening or using it. Part of the other three barrels was consumed while in the pop factory by the employees of the Mingo Light & Ice Company and others, and the balance was shipped to Bluefied. The prisoner was not present at the time it was taken away, but was either at Huntington, about 100 miles distant, or on the road to that place. However, he does not deny having directed Atkinson to take it and he virtually admitted his knowledge of its whereabouts when the officers were searching for it. This admission, however, was coupled with the statement that he thought it belonged to him, and, if he found that it did not, he would return it. While at Huntington or on his way to that place, he did nothing concerning the property taken, nor did he, at any time, have any of it in his actual possession or aid in the removal of it from the distillery. The purpose of his visit to Huntington ivas the settlement of a claim he had against somebody at that place, and which had no connection whatever with the stolen property. He did not sustain toward Atkinson or Blackburn, the relation of employer or master in anjr sense nor were the Atkinsons interested in the distilling company. Having learned that Staley, the storekeeper and gauger, at the distillery, intended to stamp and set out the whiskey, he told Atkinson to go down and get it and look after it.\\nThe circumstances shown tended to prove that the claim of title or right to possession on the part of those who took away the whiskey was not bona fide. The concealment of its whereabouts after it had been removed evinced guilty intent. It signified a determination to defeat the claim of the Freibergs, i? ot by the establishment of superior title, but by putting out of reach of the process of the courts, the subject matter of the controversy. Such conduct was in the nature of an admission of knowledge that the claim was groundless and untenable. If a person in good faith take the property of another believing it to be his own, he is not guilty of larceny, even though his claim turn out ultimately to have been unfounded, because of lack of intent on his part to deprive another of his property. This is so notwithstanding knowledge of the adverse claim at the time. State v. Flanagan, 48 W. Va. 115, 120; 18 Am. & Eng. Ency. Law 523, 524. In State v. Hanagan, a wife, claiming title to certain fruit deposited in her husband's cellar, instigated a third -party to get possession of it and ship it to her without the knowledge of her husband. He did so, under the belief that it belonged to the wife, and, on prosecution for the larceny thereof, this Court held the evidence would not sustain a verdict of guilty. But the claim of title must be asserted in good faith. It must be more than a mere colorable pretense to obtain possession, and whether it was set up in good faith is usually a question for the jury. State v. Caddle, 35 W. Va. 73, 78; Baras v. State, 41 Tex. 527; Thompson v. State, 43 Tex. 268; 18 Am. & Eng. Ency. Law 524.\\nSince the jury could have found a larceny of the whiskey, and also, that some of the parties above named were guilty, they were bound to determine which of them was the principal; for there can be no crime without a perpetrator nor an accessory without a principal. If Atkinson and Blackburn, the parties who actually took the whiskey, had no criminal intention in doing so, and took it by direction, or at the instance, of another party, such other party is, ex necessitate legis, the principal, though he was not present at the time and place of the taking either actually or constructively. The law does not justify or excuse an act which makes the intentional perpetrator thereof guilty of a felony, by denying or withholding remedy for the vindication of the peace and dignity of the state, by reason of the peculiar circumstances under which, or the means by which, it was accomplished. If the party who actually did the act was innocent of intentional wrong, and the act on his part was by procure ment o\\u00ed another, it imputes the criminal intent to that other and makes him the guilty party, although he was not in any sense an accomplice, co-conspirator, or aider or abettor of the actor. The relation of the parties to one another and to the act is such as to create an exception to the general rules of law respecting principals and accessories. If the circumstances show that the crime has been committed and the actor was innocent of intention to do wrong, he is treated as a mere instrument or agency in the hands of him who procured or induced his act. He is neither principal nor accessory, nor guilty of any crime or offense. From necessity, therefore, the other party must be the perpetrator of the crime, no matter where he was. Bish. New Crim. Law, section 310 says: \\\"The doctrines of this sub-title explain how it is that the books speak of the crimes being committed through an 'innocent agent.' Such an agent is one who does the forbidden thing moved by another person, yet incurs no legal guilt because either not endowed with mental capacity or not knowing the inculpating facts.\\\" At section 649, the same author says: \\\"There may be more principals than one, but there must be at least one. Consequently a man from whose sole and unaided will comes a criminal transaction is principal, whatever physical agencies he employes, and whether he is present or absent when the thing is done.\\\" At section 651, he says: \\\"Since there must always be a principal, one is such who does the criminal thing through an innocent agent while personally absent. For example, when a dose of poison, or an animate object like a human being, with or without general accountability, but not criminal in the particular instance, inflicts death or other injury in the absence of him whose will set the force in motion, there being no one but the latter whom the law can punish, it of necessity fixes upon him as the doer. But if the agent employed incurs guilt, then the employer is simply an accessory before the fact.\\\" A good illustration is found in Gregory v. State, 20 O. St. 510, (20 Am. R. 774.) Gregory had induced Bevis's daughter to sign her father's name to a promissory note, by false pretenses and representations which led her to believe that she had authority to do so, and the court held that the evidence warranted the jury in finding the daughter innocent of wrong-intention and the defendant, Gregory, guilty of forgery. In that instance,the defendant was present when the criminal act was done, but did not participate in it otherwise than by requesting the signing of the note and representing authority in the daughter to sign it. But, in Adams v. The People, 1 Comst. (N. Y.) 173, a resident of Ohio obtained money from a firm in New York by causing certain fraudulent and fictitious receipts to be exhibited to it by a third party. The receipt was drawn and signed in Ohio and the offense committed in the City of New York, through the instrumentality of an innocent agent, who obtained the money for his principal by presenting tire fictitious receipt, under the belief that they were genuine. The agent was innocent and his principal was held guilty, although the offense was committed in New York and he was, at the time, in the state of Ohio. The same principal was applied in Regina. v. Bannen, 1 C. & K. 295, in which the defendant had procured a die-sinker to make 'dies with which shillings could be counter-fitted, by representing to him that they were for use in whist clubs. In Regina v. Bleasdale, 2 C. & K. 765, the defendant was convicted of the larceny of coal from the premises of other persons, which, by his direction, his servants and agents had severed and carried away, and the syllabus in that case declares as follows: \\\"If a man does, by means of an innocent agent, an act which amounts to a felony, the employer, and not the agent, is accountable for that act.\\\" In Regina v. Clifford, 2 C. & K. 202, an innocent agent, at the request of the prisoner, had written \\\"William Smart\\\" to a receipt on a postoffice money order, believing he had authority to do so. Platt, Baron, said: \\\"We agree in thinking, that, as Bartlett was an innocent agent, the signing the name William Smart by him is just the same as if it had been signed by the prisoner himself, and that it is therefore a forgery.\\\" The law relating to this subject is comprehensively stated in Sharwood's Blk. Comm., Book IV., p. 33, as follows: \\\"In case of murder by poisoning, a man may be a principal felon by preparing- and laying the poison, or persuading another to drink it who is ignorant of its poisonous quality, or giving it to him for that' purpose, and yet not administer it himself, nor be present when the very deed of poisoning is committed. And the same reasoning will hold with regard to other murders committed in the absence of the murderer by means which he had prepared beforehand, and which probably could not fail of their mischievous effect. As by laying a trap or pitfall for another, whereby he is killed, letting out a wild beast, with an intent to do mischief, or exciting a madman to commit murder, so that death thereupon ensues; in every one of .these cases the party offending is guilty of murder as a principal in the first degree.\\\"\\nThe evidence leaves the case dark and incomplete as to the connection or relationship of these parties. What motive the Atkinsons had for guilty participation is not disclosed, and yet the circumstances tend to prove intention on their , part to appropriate this property to their own use. Meeks testifies to having purchased one barrel of the whiskey from Everett Atkinson, a partner or business associate of White Atkinson, to whom the prisoner gave the direction to take possession of the property. The other three barrels were deposited on premises under the control of the Atkinsons, and employes of these parties, together with others, consumed a part of it, and, after the indictment had been found, the residue was shipped away to Bluefield, West Virginia, at whose instance or by whose direction, the record does not disclose. It does not appear that the prisoner gave any direction whatever except to take possession of the property and look after it. These facts called upon the jury to say whether the Atkinsons and Blackburn were felons or mere innocent agents of the prisoner, and, if guilty, they or some ' of them were the principals and the prisoner only an acces-sorjL Since he was not present either actually or constructively, provided the real actor was guilty of offense, he must be regarded as an accessory before the fact. He did nothing but advise or direct the taking of the property. Nothing further is established except his admission of knowledge of the whereabouts of the property. These acts are not sufficient to make him a principal in the second degree. If there was another person who was principal in the first degree, the prisoner could have been nothing more than an accessory before the fact. If the Atkinsons took the property with felonious intent, they were principals in the first degree. They did not with their own hands remove the property, it is true, but Blackburn, the teamster, may have been an innocent agent in their hands. If so, and they had criminal intent in what they did, they, or some of them, are principals in the first degree. If Blackburn, on the other hand, the teamster, was cognizant of the facts and knew the Atkin sons had no right to take the property, and that they had feloni'ous design in causing him to take it, and they did not in any way aid in the actual taking, then he was the principal. The prisoner denies that he ever received in any way benefit from the property or participated in the disposition made of it, and there is no evidence that he did. On the contrary, it appears that the Atkinsons did derive benefit from it and make the disposition of it.\\nIn view of this evidence tending to show actual guilt on the part of persons other than the prisoner, the absent instigator of the taking, the court could not, by any instruction given, preclude inquiry by the jury as to their guilt or innocence, without injury to the prisoner. It may be insufficient to warrant the court in saying, as matter of law, the latter ivas an accessory before the fact and not a principal, but it was amply sufficient to call for the deliberation and action of the jury upon the hypothesis of guilt in those who did the actual taking or some of them, and consequent innocence of thq prisoner as a principal. It becomes necessary, therefore, to ascertain whether the action of the trial court in giving and refusing instructions was in accord with the principles here stated.\\nThe State's instruction No. 1 is clearly bad. It told the jury the prisoner was guilty, if he had \\\"by himself, or through the agency of some other person or persons, fraudulently\\\" taken and carried away the property. It ignored the requisite of innocence on the part of the agent. Its instruction No. 2 was, to say the least, misleading for it proceeds upon the hypothesis of possession of the property by the prisoner and felonious conversion thereof to his own use, in the absence of evidence tending to prove actual possession; and does not propound the theory of constructive possession by means of an innocent agent. Its instruction No. 3 is too general and indefinite in saying felonious intent could be shown by the testimony of witnesses or inferred from all the facts and circumstances of the case. The principles applicable under the peculiar circumstancesTof this case rendered it necessary to make the instructions specific and clear. The jury could not safely deallwith itpinder instructions calculated to confuse or mislead them by reason of the generality of the terms, though, under other conditions, such generality might be unobjectionable and harmless. The fiction of actual presence, dependent upon the innocence of the agent, an element not often involved in crimifial trials, cannot be ignored in any instruction declaring the law upon the entire evidence in this case.\\nDefendant's instruction No. 4 was properly refused. Its object is not very clear. In fact, it is almost unintelligible. It sought exoneration of the prisoner on the ground of his guilty knowledge of the taking of the property and his derivation of benefit therefrom. His instruction No. 6 was improperly refused. It propounded the theory of a taking under belief in good faith that the property was not that of the Freibergs, but that of the Tug River Distilling Company. In the refusal of instruction No. 7, in the form in which it had been requested, and the giving thereof as modified by the court, there was no error. As requested, it would have told the jury the prisoner could not be convicted, unless they found there had been a felonious taking of the property from the possession of the Freibergs. The court modified it by inserting the words \\\"actual or constructive\\\" before the word \\\"possession.\\\" In its original form, it might have been misleading, since the property was not in the actual possession of the Freibergs. Their constructive possession was sufficient to make the taking a trespass, a necessary element of common law larceny.\\nFor the reasons stated, the judgment will be reversed, the verdict set aside and the case remanded for a new trial.\\nReversed. Remanded.\"}"
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+"{\"id\": \"8631788\", \"name\": \"Hurst Hardware Co. v. Goodman\", \"name_abbreviation\": \"Hurst Hardware Co. v. Goodman\", \"decision_date\": \"1910-12-20\", \"docket_number\": \"\", \"first_page\": \"462\", \"last_page\": \"470\", \"citations\": \"68 W. Va. 462\", \"volume\": \"68\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T17:16:31.339232+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hurst Hardware Co. v. Goodman.\", \"head_matter\": \"CHARLESTON.\\nHurst Hardware Co. v. Goodman.\\nSubmitted January 19, 1910.\\nDecided December 20, 1910.\\n1. Frauds, Statute of \\u2014 Promise to Answer for Debt of Another.\\nIf property be delivered or services rendered to one person upon an oral promise of payment by another, and charged only to the person to whom delivery was so made or for whom services were so rendered, and an effort made to collect the purchase money or compensation from the person against whom the charge was made, such promise is'eollateral and, if not in writing, void.\\n2. Same.\\nIf the main purpose of an oral promise by one person to pay a sum of money for which another is liable or may become liable is to secure a direct, personal and pecuniary benefit to the promisor, the promise is original and not within the statute of frauds, though such third person remain liable for the debt.\\n3. Same \\u2014 Promise to Pay the Debt of Another.\\nIf the benefit, derived by the promisor in return for such a \\u2022 promise is remote, indirect and not personal, the promise is collateral and within the statute.\\n4. Same \\u2014 Payment of Corporate Debts \\u2014 Oral Promise of Stockholder.\\nThe oral promise of an officer and stockholder of a corporation, who is liable a? an endorser on its paper and for debts or obligations, assumed by the corporation, to pay for goods sold and delivered to it, is collateral and within the statute, the benefit, accruing to him from such sale and delivery, being remote and indirect.\\nError to Circuit Court, Mingo County.\\nAction -Dy the Hurst Hardware Company against A. Goodman. Judgment for defendant, and plaintiff brings error.\\nAffirmed.\\nStolces & Bronson and Sheppard, Goodylcoontz & Scherr, for plaintiff in error.\\nCampbell, Brown & Davis, for defendant in error.\", \"word_count\": \"3401\", \"char_count\": \"19684\", \"text\": \"POEEEUBARGER, JUDGE :\\nAlleged error in the rulings of the trial court on a demurrer 'to evidence constitutes the ground of complaint on this writ. The Hurst Hardware Company instituted the action to recover a sum due it for merchandise sold and delivered to a corporation, known as the Goodman Coal & Coke Company, amounting to $900.85, and also a sum due it, as assignee of the Williamson Grocery Company, for goods sold and delivered to the-same corporation; on the theory that the defendant, A. Goodman, had bound himself by verbal promises to pay said debts, not within the statute of frauds.\\nThe facts disclosed by the uncontradicted testimony are substantially as follows: The defend\\u00e1nt and one Sampsell took a coal lease on a tract of land known as the Stepp land, providing for the payment of a heavy minimum annual royalty. ' The Goodman Coal & Coke Co. was organized to develop the property and said lease assigned to it. Goodman 'was a heavy stockholder in that corporation and its president and treasurer. He was also obligated with others, by endorsements, for some of its debts. The plaintiff and its assignor had been furnishing it merclian- ' dise. As it failed to pay its bills promptly and seemed to be embarrassed, each of these companies declined to fill some of its orders for goods. Thereupon the defendant made to each of them the promises relied upon here as binding him personally. At that time, the corporation owed the Williamson Grocery Co. a considerable sum, which the defendant paid by a check of the corporation. He then talked to the manager of the grocery -company who says lie told him he would be personally responsible for the amounts to become due on all future purchases by the company. Thereafter it delivered or furnished the corporation goods to the amount of $1,642.50, charging them to it and rendering it statements for the same. At or about the same time, the corporation, was indebted to the hardware company to the extent of about $600.00. Its manager called upon the defendant, who promised to make a substantial payment on the . old account and ordered shipment of such goods to the corporation as should be thereafter needed or wanted, and promised to pay for them himself. Afterwards, he sent the corporation's check for $100.00. Additional goods were furnished and charged to the corporation, until the balance due amounted to $900.85. Later the corporation went into the hands of a receiver and then into bankruptcy, and both the Hurst Hardware Company and the Williamson Grocery Company filed their accounts against it' in the bankruptcy proceeding, whence each received a portion of its debt.\\nIf the situation of the defendant as an officer and stockholder of the corporation, endorser on its paper, and principal in the obligation- for royalties, payment whereof was assumed by the corporation, did not make these debts for goods his own debts, founded^upon consideration moving to him, and the promises original, the judgment is right. By charging the goods to the corporation and demanding payment thereof from it, the vendors disclosed manifest, positive and unequivocal intent to hold it a debtor to them. In seeking now to hold Goodman also, they are attempting to make him pay the acknowledged debt of the corporation. In such cases, the decisive test is to whom credit was giren, and it must hare been giren to the promisor alone. If the creditor relies upon the person to whom the property is' delivered or for whom the service is rendered to any extent whatever the promise is collateral and void, if not in writing. Johnson v. Banh, 60 W. Va. 323; Mankin v. Jones, 63 W. Va. 373; 20 Cyc. 180, 181. Here the charging of the goods to the corporation, rendition of statements to it and assertion of claims therefor against it in the bankruptcy proceeding, all admitted by the plaintiff, effectually preclude a finding in its favor. A verdict for it, on this theory of the case, could not be sustained.\\nThe decision must turn, therefore, upon the inquiry as to the effect of the relation existing between Goodman and the Goodman Coal & Coke Co. If, in substance, effect and main purpose, the oral agreements were for his benefit, the promises were original and not collateral undertakings. It is not enough merely to say he was benefited by them. In ordinary contract law, a benefit to the prisoner or detriment to the promisee constitutes a sufficient consideration. The question we are called upon to determine goes beyond this. How far the policy which dictated the statute of frauds, and the terms in which the legislative will is expresed, must have weight in the solution thereof. In almost every instance of the assumption of one man's debt by another, there is some reason for the promise, some benefit accruing to the promisor as well as the debtor. The acknowledged and expressly declared purpose of the statute is to preclude the establishment of rights by oral testimony, when the situation of the parties is such as to constitute a strong motive for perjury and fraud in establishing a liability, or the false extension or amplification of conversations and transactions so as to make them impose obligations lying beyond their real scope and effect. To this end, it ordains and declares that no action shall lie to charge any person upon a promise to answer for the debt, default or misdoings of another, unless the promise or some memorandum or note thereof be in writing signed by the party to be charged thereby or his agent. Tested by its letter, the statute inhibits proof of an oral promise to pay the debt of a third person. That some benefits accrues to the promisor for the Service rendered, or the property sold and delivered, to such third person, does not necessarily make the debt that of the promisor or prevent it from being that of such third person. ' If the debt is that of another and not of the promisor, the terms of the statute include it, and an incidental benefit, accruing to the promisor cannot exclude it. If, on the other hand, the debt is that of the promisor, the promise is not within the statute though a third person may be incidentally relieved of an obligation in consequence of payment. If, for a consideration, the promisor has assumed the debt of another and made it his own, the promise lies beyond the terms and policy of the statute. Neither its terms nor policy relate exclusively to the subject of benefit or detriment. The subject matter is the mode of proof of the assumption by one man of another's debt. Therefore, whether the debt is that of another is the true test.\\nThis question has been the subject of much discussion and s\\u00f3mewhat varied judicial rulings. A divergence of opinion, respecting it, between Chief Justice Shaw, of Massachusetts, and Chancellor Kent, of New York, became manifest many years ago. In some states, the views of,one are adopted and in some the views of the other. New York has receded from the position taken by Chancellor Kent and substantially adopted that of the Massachusetts court. In Leonard v. Vredenburgh,. 8 Johns. 29, Chancellor Kent took the position that a promise to pay the debt of another, arising out of some new and original consideration of benefit or harm moving between the newly contracting parties, is not within the statute. As this practically eliminated all promises founded upon a consideration, sufficient under the rules of common law, it relieved from the operation of the statute a vast number of promises, such in character as to bring them clearly within the policy which dictated the enactment of the statute. For this reason, the New York court of appeals has limited it very greatly. It now holds that mere detriment to the promisee is not enough to take a promise out of the statute. Mallory v. Gillett, 21 N. Y. 412. In that case, it was held that the new consideration must move to the promisor and be beneficial to him. In Brown v. Weber, 38 N. Y. 187, it was observed that this did not sufficiently limit the exception from the statute, for the reason that a promise, made upon a new consideration, moving to the promisor and beneficial to him, may still be only collateral or conditional and therefore within the statute. Accordingly the court said: \\\"The test to be applied to every case is, whether the party sought to be charged is the prin cipal debtor, primarily-Hiable, or wbetlier be is only liable in case of tbe default of a third person; in other words, whether he is the debtor, or whether his relation to the creditor is that of surety to him for the performance, by some other person, of the obligation of the latter to the creditor.\\\" 'These principles were reasserted and applied in Ackley v. Parmenter, 98 N. Y. 425, and again in White v. Rintoul 108 N. Y. 222, which decisions bring the rule in New York more nearly into harmony with the views of Chief Justice Shaw, who declared an original promise to be one in which the leading object of the promisor is not to become the surety or guarantor of another's debt, but to subserve or promote some interest of his own, although its effect may be to pay the debt of another. As lias been stated, each of these views has been respectively adopted in some of the states, but the latter seems to prevail. Colgin v. Henley, 6 Leigh 85,. has been classed among those adhering to the former, .but, on this point, the reasoning of the Court in that case has not been fully set forth. All that was said on the subject is found in one short paragraph and the promise was in writing. The question presented was not exactly the one we have here. The Massachusetts rule has been adopted by the federal Supreme Court in two cases, Emerson v. Slater, 22 How. 28, and Davis v. Patrick, 141 U. S. 479. In the former, Emerson had a contract with a railway company to do certain bridge work by a certain date. The railway company became insolvent and unable to meet its engagements, in consequence whereof Emerson quit work and refused to continue it. Thereupon Slater, who was largely interested in the railway company, as a stockholder, and also as the holder of certain contracts, made between him and the company, entered into a written contract with Emerson whereby he bound himself to pay to Emerson certain sums of money in consideration of the promise of the latter to resume the work and complete it by a certain date. As Emerson was unable to complete the work within the time specified in said last contract, Slater extended the time of completion by an oral agreement. The defense was that said oral agreement of extension was within the statute of frauds, Slater's promise having been one for the payment of the debt of the railway company. The court, however, excepted the transaction from the statute upon the ground that Slater's promise was original and not collateral, because founded \\\"uijon a consideration moving to him and beneficial. The language of Mr. Justice Clifford was as follows: \\\"Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself, or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the' debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability.\\\" To sustain this proposition, he cited both the Massachusetts and New York cases. As it was held that the promise was made to subserve a pecuniary- or business purpose of the promisor, it becomes necessary to ascertain upon what peculiar circumstances this conclusion was based, in order to understand the application of the principle or rule. Slater's interest extended beyond that of stockholder and officer of the railway company. It is stated in the opinion in the following clear and concise terms: \\\"Prior to that date, (the date of Slater's contract), the railroad company had failed, and was utterly insolvent, owning nothing, it seems, except the securities transferred to the defendant for his indemnity in this transaction, and the franchise of the road. Unlike what was exhibited in the former record, it now ajDpears that the defendant had large interests of his own, separate from his relation to the company as a stockholder, which were to be promoted by the arrangement. He had leased to the company railroad iron for the use of the road, amounting in value to the sum of sixty-eight thousand dollars, and, as a security for payment, held an assignment of the proceeds of the road to that amount, with interest, which was to be paid in monthly installments of five thousand dollars. Now, unless the bridges were completed and the road put in a'condition for use, there would be no proceeds; and as he had already taken into his possession all the available means of the company to secure himself for this new liability, should the road not be completed, the company could not pay for the iron.\\\" The case of Davis v. Patrick was similar. Davis had promoted and organized an English company, to develop a silver mine in Utah and advanced to it five thousand pounds, which was to be repaid by the delivery to him, at a place distant from the mines, of a certain number of tons of silver ore. The plaintiff, Patrick, had been employed to trans port tbe ore. Tbe expectations of tbe parties were not fully realized. Tbe company became embarrassed. Thereupon Davis agreed to advance further sums of money, and the company executed a contract by which another man by the name of Patrick. was put in absolute control of its business, so as to continue the work and get out the ores, which were to be applied to the satisfaction of Davis's original debt and repayment of moneys thereafter to be advanced by him. This instrument virtually put all of the assets and business of the corporation in the hands of Patrick as trustee for the benefit of Davis. The plaintiff continued the work of transportation. Davis furnished money from time to time, but not enough to pay the cost of transportation in addition to other expenses. As an inducement to the plaintiff to go on and continue his work, he made numerous oral promises to pay him. Upon this state of facts, the court applied the doctrine and principles enunciated in Emerson v. Slater, and accordingly held the defendant's oral promises to have been original and not collateral. It is to be observed that the defendants in these two cases sought, by their contracts, to promote interests of their own, other than such as were attendant upon their rights as stockholders in the corporations; that each had in his own hands and for his own benefit practically all of the assets and property of the corporations whose debts they assumed; and that each, by virtue of the services rendered, obtained direct and immediate personal benefit under their contracts with the insolvent corporations. They are not eases of remote and indirect benefit, accruing to the promisor. That mere interest, as a stockholder of a corporation, receiving the direct and immediate benefit of the contract is not sufficient, has been several times decided.\\\" Bank v. Stettheimer, 101 N. Y. Supp. 513; Turner v. Lyles, 68 S. C. 392; Wyman v. Gray, 7 H. & J. (Md.) 409; Andover v. Flint, 54 Mass. 539; Searight v. Payne, 2 Tenn. Ch. 175; Walther v. Merrill, 6. Mo. App. 370. We repeat also that the benefit, accruing to the promisors in the two federal cases above analyzed, was direct and immediate. Each held a mortgage upon all the income of the corporation to secure the repayment of money advanced, and these special interests and rights were found to have been the moving cause of the promises made. The promisors were in a position to obtain the first fruits of the services rendered and to be rendered by the promisees. The doc trine of the Massachusetts court and the later doctrine of the New York court has been enunciated and applied by this Court in Mankin v. Jones, in which Judge B\\u00fcANNON said, after reviewing the authorities, \\\"In other words, the third party making the promise must derive benefit, to be bound. What else does the statute mean ? For what made, if the mere promise, without benefit to the man making it, binds him ? His protection against this was the very object of the statute. It is not a question of morality and justice, but public policy, to prevent perjury to sustain false demands. It means that he is not bound for a naked promise to pay a debt of another; but if he himself gets property or other pecuniary benefit he is not merely and only paying the debt of another, but his own.\\\" A late case decided by this Court, holding a promise to have been original and beneficial to him, is Howell v. Harvey, 65 W. Va. 310. There, the work done- for which the promisor bound himself to pay, was an improvement put upon his own property. The benefit was direct, immediate - and personal. For clear statements of the foregoing principles, well sustained by adjudications, see 29 A. & E. Enc. Law 922, 927, and 20 Cyc. 189, 190, 193.\\nIn this case, the goods the -defendant promised to pay for contributed to the development of the company's mine and kept it a going concern for the time being. Defendant had no lien upon the property or assets of the company nor any contract with it by virtue of which the delivery to it of the goods, constituting consideration of the debts, could enure to his direct, immediate and personal advantage. The benefit accrued directly to the corporation and no one else. Incidentally and remotely, the defendant and all other stockholders and creditors may be said to have been benefited, but not otherwise. We do not think this sufficient to bring the case within the rules and principles upon which promises of this kind are held to be original in consequence of benefit accruing to the promisor.\\nSeeing no error in the judgment, we affirm it.\\nAffirmed.\"}"
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+"{\"id\": \"8631977\", \"name\": \"Pendry v. Cozort et al.\", \"name_abbreviation\": \"Pendry v. Cozort\", \"decision_date\": \"1913-02-25\", \"docket_number\": \"\", \"first_page\": \"100\", \"last_page\": \"105\", \"citations\": \"72 W. Va. 100\", \"volume\": \"72\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T00:22:10.406728+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Pendry v. Cozort et al.\", \"head_matter\": \"CHARLESTON.\\nPendry v. Cozort et al.\\nSubmitted January 23, 1912.\\nDecided February 25, 1913.\\nDescent and Distribution \\u2014 Advancements\\u2014Effect.\\nWhere all of the heirs have severally received conveyances of land from the ancestor in his life time, each covenanting that the conveyance to him is in full of all that he is ever to have as heir, and the ancestor dies intestate leaving other land, no one of the heirs can cause the conveyances to he brought into hotch-pot as advancements, but all must share equally in partitioning the land of which the ancestor died seized, (p. 103).\\nAppeal from Circuit Court, Wyoming County.\\nBill in equity by Flora C. Pendry and another against Ma-nerva J. Cozort and others. From a decree for plaintiffs, defendants appeal.\\nReversed and Decree Here.\\nM. F. Matheny, for appellants.\\nJ. H. G\\u00fcmore, for appellees.\", \"word_count\": \"2139\", \"char_count\": \"11991\", \"text\": \"BobiNSON, Judge:\\nIn the year 1876, William G-. Phillips, then the owner of 529 acres of land, conveyed therefrom to his daughter and her husband, plaintiffs in this suit, in consideration of parental love and affection,.a certain boundary, supposed, as the deed recited, to contain 140 acres, more or less. The parcel conveyed was quite generally described by reference to natural monuments. Plainly the deed is for a particular body of land in gross and not for a specific number of acres. The deed contained this covenant1. \\\"It is further understood in this conveyance that the parties of the second part in this deed receive the property hereby conveyed as their entire interest as heirs to the estate of the parties of the first part, in and to the 529 acre survey of land, of which said conveyance is a part.\\\" So we observe that plaintiffs accepted the body of land conveyed by the deed as all that the daughter was ever to receive of the 529 acre tract as an heir.\\n\\\"William G. Phillips, who conveyed to plaintiffs as we have stated, had two other children \\u2014 a son and another daughter. In the year 1879, in consideration of parental love and affection, he conveyed to the son another portion of the 529 acre survey, described by reference to natural monuments, and, as the deed recited, supposed to contain 175 acres, more or less. This deed to the son contained exactly the same covenant which we have recited from the deed to plaintiffs. And in the year 1883, in consideration of parental love and affection, he conveyed to the remaining daughter and her husband another portion of the 529 acre survey, described by reference to natural monuments, and as the deed recited, supposed to contain 164 acres, more or less. This deed to the remaining daughter contained exactly the same covenant which the two other deeds contained.\\nThus, by the same manner of conveyance, for the same consideration, and under the same covenant that the land conveyed in each instance was received in full of the share of the son or daughter in the father's estate in the 529 acre survey, William G. Phillips gave each of his children and prospective heirs at law, all of them adults, such particular portions of the large body of land which he owned as he deemed the particular child or heir should have as his share of the same. And in each instance, the child or heir received the same as all that he was ever to receive therefrom. By the acceptance of the deed in each instance, the child or heir to whom the conveyance was made, es-topped himself ever to demand a different division of the 529 acre survey.\\nBut after all these conveyances had been made a small parcel of the-original tract remained in the ownership of William G. Phillips. He subsequently purchased from one Cook another parcel, so that he owned about 145 acres .at the time of his death in the year 1909. He died intestate, leaving to survive him a widow and the three children to whom we have referred, the latter his only heirs at law.\\nNow, by the conveyances to which we have referred, it is clear that William G. Phillips gave to his children before his death all that he ever intended them to receive from the 529 acre tract. The deeds in fact say so. He made his own division of the land among all his children in his life time, binding them that they were to receive no more therefrom. So it would seem that he did not intend the small remainder of the tract for them. It is only reasonable to presume that he meant to dispose of it by deed or will before his death. But he did not do so. He died intestate, as we have said, and title to the residue of the large tract, together with title to the parcel purchased from Cook, was by the law thrust upon the three children jointly as his heirs, subject only to dower of the widow therein.\\nSome time after the death of William G-. Phillips, plaintiffs brought this suit for a partition of'the real estate of which he died seized and possessed, subject to the assignment of dower therein to the widow, praying that the property conveyed by the deeds which we have mentioned be brought into hotchpot as advancemcents in the making of such partition. Plaintiffs alleged that they did not receive by the deed to them as much land as was conveyed to the others. So the evident object of the suit was that they might get more than the deed had given them. The cause on the bill, answers, and depositions proceeded to a decree directing an assignment of dower, sustaining the claim of plaintiffs that they had not received by the deed to them as much as the others, ordering the three parcels of land conveyed by the deeds to be brought into hotchpot as advancements and referring the cause to a commissioner for the purpose of carrying out the decree. From this decree the son and the other daughter and her husband have appealed. They maintain that the conveyances of land as made to his children by William G. Phillips can not be disturbed; that his heirs are entitled to share equally in the land of which.he died seized and possessed; but that in the division thereof no account can be taken of the conveyances made to' his children in his life time.\\nThe argument is made by plaintiffs, as appellees, that the decree is not an appealable one. They ask that the appeal be dismissed as improvidently awarded. This point must be overruled. The decree is dearly one adjudicating the principles of the cause.\\nWere the three conveyances such advancements as are contemplated by Code 1906, ch. 78, sec. 13, which provides for the bringing of advancements into hotchpot? Our answer is that this case does not come under that statute. Though we may denominate each of the conveyances as an advancement, still each of the heirs agreed that the conveyance to him was to be all that he should receive of the land. Every one of the heirs of William G. Phillips so took that which was advanced. All the heirs are on a footing as to the advancements made in the life time of the decedent. Here all the heirs shut themselves out from demanding more. An heir may so debar himself. \\\"If a child accept from a parent a deed of present conveyance of land, providing that it shall be in full discharge and satisfaction of the child's expectant share in the parent's estate, it will bar any further claim for participation by such child in such estate, though the child did not sign the deed.\\\" Roberts v. Coleman, 37 W. Va. 143; Coffman v. Coffman, 41 W. Va. 8. If William G. Phillips had left another heir to whom he had made no conveyance, these three that accepted the deeds would be obliged to let him take all the remaining land. Every one of the heirs is barred out from receiving more, if there was any one to receive it. However, there is no unbarred heir, and the law thrusts the remaining land jointly on all those who otherwise would be barred from receiving it. Then are they not each on the same footing ? Can one of them claim that another has been advanced over him? After having covenanted to take no more, are plaintiffs in a position to demand that the estate'be brought into hotchpot? May they thus ask more when they covenanted to receive no more ?\\nIt is true that William G. Phillips died intestate, and it happens that the law gave the heirs his remaining estate. But merely because of this, plaintiffs can not virtually cause a different division of that which was divided among them all by' the father in his life time. Indeed to allow them to do so would bo in .express violation of the covenant then made by them. The only equitable view that can be taken is that the division of the land made by 'William G. Phillips in his life time must stand as he made it and as each heir in accepting a deed then agreed to it, and that the other land thrust on the heirs by the law regardless of their covenant shall be divided as the law which gave it to them directs. That which William G. Phillips gave them in full of his land, he divided; that which the law gives them in full of his remaining land, it will divide.\\nIn Needles v. Needles, 7 Ohio St. 432, the principle which we apply.here is recognized. There it was held: \\\"The statutory provision as to advancements in the descent and distribution of estates, can have no just application, in a case where it is apparent that the testator, who, by his will, had distributed property in different amounts among his children, with the manifest intention of disposing of all his estate, unexpectedly, by the omission of a residuary clause in his will died intestate as to a residuum of his estate.\\\"\\nOur statute relating to bringing advancements into hotchpot contemplates the coming of an heir to whom an advancement has been mad\\u00e9, into an estate from which he has not barred himself by agreement or covenant, and as to which estate there are other heirs to whom no such advancement as he received has been made. But here all heirs have shared in the advancements, and all have barred themselves from further participation in the estate. It is plain from the deeds themselves that William G. Phillips never intended that the conveyances should ever after-wards be considered as advancements in a further division of his estate. He did not intend them for advancements, such as the statute contemplates. If he intended them to figure in a future settlement or division of his estate, why did he bind the heirs from participation in any future settlement or division P\\nIt is true that a conveyance of land to a child in consideration of love and affection is presumed to be an advancement. But that presumption may be rebutted by showing that it was intended otherwise. In this case the deeds themselves rebut the presumption. They expressly show that it was not intended that the property conveyed by them should ever afterwards figure in relation to a division of the grantor's estate.\\nThe contention of plaintiffs that they may bring the convey- anees into hotchpot seems to have arisen from the fact that, in these later days of coal surveys by accurate methods, the acreage of the tract conveyed plaintiffs by William G-. Phillips falls short to 77 acres, while one of the other tracts conveyed by him is alleged to have more than the supposed acreage named in the deed. Indeed the decree goes so far as to affirm that by mistake the three conveyances were not made equal. There is no basis in the case for this finding. No evidence of such mistake appears. The deeds made by William G. Phillips plainly are conveyances of bodies of land in gross, not conveyances by the acre-. Plaintiffs, as well as the others, knew, or must have known, what land they were taking under .covenant to ask no greater quantity. By such covenant and the character of their deed, plaintiffs, years ago, negatived claim of mistake or unfair division. Such claim is stale indeed.\\nThe decree, except as far as it provides for the assignment of dower in the 145 acres to the widow, will be reversed, and the cause will be remanded with directions to cause a partition of the 145 acres among the heirs, without reference to the lands conveyed to them by William G-. Phillips in his life time.\\nReversed and Remanded.\"}"
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+"{\"id\": \"8632583\", \"name\": \"Perry, Adm'r. v. Ohio Valley Electhic Ry. Co.\", \"name_abbreviation\": \"Perry v. Ohio Valley Electhic Ry. Co.\", \"decision_date\": \"1913-04-15\", \"docket_number\": \"\", \"first_page\": \"282\", \"last_page\": \"288\", \"citations\": \"72 W. Va. 282\", \"volume\": \"72\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T00:22:10.406728+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Perry, Adm'r. v. Ohio Valley Electhic Ry. Co.\", \"head_matter\": \"CHARLESTON.\\nPerry, Adm'r. v. Ohio Valley Electhic Ry. Co.\\nSubmitted January 16, 1912.\\nDecided April 15, 1913.\\n1. Master and Servant \\u2014 Assumption, of Risk \\u2014 Electricity.\\nA servant employed to reset electric poles, requiring Ms climbing amongst live wires for the purpose of attaching a pulley to the old poles, used in hoisting the new ones, assumes the risk of all ordinary dangers incident to so hazardous an employment, hut not the risk of unknown and abnormal dangers due to the master\\u2019s negligence, (p. 284).\\n2. Same \\u2014 Injury to Servant \\u2014 Actionable Negligence \\u2014 Electricity.\\nIt is negligence for which the master is liable to a servant, so employed, who is injured or killed on account thereof, to permit a joint, or connection, to he made in a highly charged electric wire and remain uninsulated, and so close to one of the metal braces supporting a cross-arm on the pole as to charge it. (p. 283).\\n3. Same \\u2014 Safe Place to WorJc \\u2014 Inspection by Servant \\u2014 Electricity.\\nThe master, acquiescing in the use which his servant makes of the old poles, in performing his work, is bound to see that the wires thereon are not in an abnormally dangerous condition. The rule in regard to reasonably safe appliances with which to work applies, and the servant is not required to make inspection, (p. 286).\\n4. Same \\u2014 Injury to Servant \\u2014 Contributory Negligence \\u2014 Question for Jury.\\nIn view of the evidence in this case, the question of contributory negligence is held to be a fact for the jury to determine, (p. 287).\\nError to Circuit Court, Cabell County.\\nAction by John W. Perry, administrator, etc., against the Ohio Valley Electric Eailway Company. From judgment for plaintiff, defendant brings error. \\u25a0\\nAffirmed.\\nVinson & Thompson, for plaintiff in error.\\nL. D. Isbell, J. W. Perry, and Holt \\u2022& Duncan, for defendant in error.\", \"word_count\": \"2427\", \"char_count\": \"13482\", \"text\": \"WilliaMs, Judge:\\nTrespass on the case by the administrator of Clifford E. Dug-ger, deceased, to recover damages for his unlawful death, alleged to have been caused by defendant's negligence. Verdict and judgment for plaintiff for $7,500, and defendant was awarded a writ of error.\\nDeceased was in the service of defendant as foreman of a gang of men engaged in erecting electric poles. Two methods are commonly employed in raising them. One is to lift them by means of spike-poles, and the other is, if they are being erected to take the place of old ones, to hoist them with block and tackle attached to the old pole. On. the 12th September, 1910, deceased was preparing to hoist a pole at the corner of 3rd Avenue and Seventh Street in the City of Huntington. He ascended the old pole, which was equipped with a primary wire carrying 2300 voltage, a transformer and telephone wires, and'had fastened the block and pulleys to the pole, just above the lower or third cross beam, and \\u00a1had begun to descend, when J. W. Sturgeon, defendant's general line foreman, who was standing near the foot of the pole, called to him that the \\\"fall\\\" line was not properly adjusted, that it should hang next to the pole instead of on the outside of the block, as it was. Deceased then returned, adjusted the rope and, in descending the pole, caught hold of one of the metal braces supporting the cross-arm. The brace being highly charged with electricity and his body coming in contact with one of the telephone wires, a short circuit was formed, and he was killed. There was an uninsulated joint, three inches long, in the primary wire, which, by contact with the brace, caused it to become charged with a deadly current of electricity.\\nWorkmen in climbing the pole were liable to come in contact with the exposed joint, and it was liable to come in contact with the, brace. It was negligence to leave it in such a condition. Mitchell v. Coal Co., 67 W. Va. 480; Thomas v. Electrical Co., 54 W. Va. 395; and Thornburg v. R. R. Co., 65 W. Va. 379. It is a common practice among pole climbers to take-hold of the metal braces, and if the wiring is normal, there is no danger in doing so.\\nBut non-liability is claimed on two grounds: (1) assumption of risk, and (2) contributory negligence. The availability of the first defense depends upon the scope of deceased's employment. If he was employed to do any and all kinds of work in repairing an old line which he knew was- abnormally dangerous, then he assumed the risk of all the dangers incident to that kind of work. If he knew the wires, as well as the poles, were out of repair, and was employed to put both in proper condition, while the current was on the wires, the cause of his death was one pf the assumed risks .and plaintiff can not recover. If such was his knowledge and such the scope of his undertaking, he must have expected to encounter-such dangers as the one that caused his death. \\u2022\\nBut if he was simply employed to set poles, and did not know that the wires were in an abnormally unsafe condition, he had a right to assume that they were no more dangerous than similar wires, in like use, ordinarily are. If such be the case, the exposed .wire was an extraordinary hazard which he did not assume because it is not reasonably to suppose he could have anticipated a condition so abnormal and unusual. The law does not burden the workman with the assumption of extraordinary risks. He assumes only such as an ordinarily prudent man knows are incident to the employment. However dangerous the employment, the workman is never held to assume risks not ordinarily incident thereto, and of which he has no knowledge. 1 Labatt, sec. 270. The scope of deceased's employment was a fact for jury determination, and we think they could very properly infer from the testimony of defendant's own witnesses that it was limited to setting poles. He had worked as a member of the same gang of which he was made foreman, under another foreman by the name of Shafer, from sometime in June to sometime in August, 1910, when Shafer quit. He then applied to W. W. Magoon, defendant's general manager, for the position of foreman and was employed as such. Mr. Magoon testifies that he then said to him: \\\"You must remember that this work down here takes a very careful man, a man who knows how to handle live wires, because that work has got to be done with live wires, in order to keep our service going in town. He said, T can handle that all right,' and I then gave him instructions. I said 'all right, go ahead,' and he took charge of the work.\\\" On cross-examination he said: \\\"Q. He was removing old poles and putting in new ones at the time ? A. He was working in the line of his work; yes, sir. Q. His duty was simply to put in new poles,, was it? A. No, sir, his duties were to make all corrections on that line, changing the wires and general line of work.\\\" But he had been working in this gang, either as a common laborer o\\u00ed-as foreman, from June to 12th September, and there is no proof that he ever transferred a single wire from an old pole to a new one.\\nJ. W. Sturgeon, who was the 'dine foreman,\\\" testified, on his examination in chief as follows, viz.: \\\"Q. Do you know who had charge of the work that was being done there at that place, Mr. Sturgeon? A. What do you mean, what time? Q. At the time this accident occurred? A. Mr. Dugger had charge of setting the poles. Q. Was there anything else being done ? A. Nothing only setting poles at that time.\\\" On cross-examination, he testified as follows: \\\"Q. Ton were foreman there, were yon, Mr. Sturgeon ? A. I was foreman over the whole line; yes, sir. Q. And Dugger was under you, was he? A. Yes sir.\\\"\\nThe rule in regard to a safe place and safe' appliances applies in this ease, because the old pole was a means or appliance which deceased used in the performance of his work, with the master's acquiescence. It was, therefore, defendant's duty to see that the wires on the pole were in a reasonably safe condition. Deceased was bound, of course, to take notice of whether the strength of the pole was sufficient for the purpose for which he was about to use it, because the new one was being erected to take its place, and that was sufficient to put him on guard as to any defect in the pole, but he was not chargeable with the duty to use extraordinary care to avoid unknown danger from imperfect wiring. There being no proof that the line was being repaired because the wires were bad, or imperfectly strung, deceased was not bound to use extraordinary caution. lie was not required to inspect the wiring to see if there were hidden dangers or late'nt defects. This case is distinguishable from Wheeling v. Lumber Co., 70 W. Va. 122, cited by counsel for defendant. In that case Whorley was assisting in installing machinery in a saw-mill and was injured by the bursting of a steam pipe while he was tightening a leaky joint in it. In the' present case deceased was killed while making use of an electric pole, an already completed appliance, as a proper means of accomplishing the work he was set to do. He was neither installing nor repairing the appliance that killed him. The case is more analogous to Madden v. Minneapolis &c. Ry. Co., 32 Minn. 303, 20 N. W. 317, in which Madden, a brakeman on a gravel train, was injured because of a defect in the old track over which gravel and ties were being hauled for the purpose of repairing it. The company was held liable. Says the court: \\\"The fact that the work in which plaintiff was employed was that of repairing or making preparations to repair the track did not diminish its duty to furnish safe and suitable means and instruments to do his work. As it required him in that work to use the old track, it should have had it reasonably safe for the purpose.\\\" That the appliance, the old pole in this case, was not erected and equipped with reference to its use as a means for erecting new poles, can make no difference in the application of the principle that it is tbe master's duty to furnish reasonably safe appliances, because defendant knew that the poles were constantly so used, and acquiesced therein. The proof is that block and tackle, attached to the old pole, was a usual, and customary means employed in raising poles. \\\"The master's acquiescence in the use of an appliance for some purpose other than that for which it was intended puts him in the same position as if the appliance had been originally furnished for that purpose.\\\" 1 Labatt, see. 28. The same rule was applied in the following cases which are very similar to the Madden case: Dunn v. New York &c. R. R. Co., 107 Fed. 666; Lauter v. Duckworth, 48 N. E. 864 (Ind. App.). The rule applied in cases of injury to a servant by falling platforms, erected by the master for the use of his servant, is the proper rule to be applied here. In such cases it is uniformly held: (1) That the servant is not bound to make inspection; (2) that the workmen who prepare the place or appliance are not fellow servants to those who are employed to work in the place or with the appliance; and (3) that the master is liable if the defect causing the injury was unknown to the servant. McLean v. Standard Oil Co. of Indiana, 21 N. Y. Supp. 874; Benzing v. Steinway & Sons, 101 N. Y. 547; Goldie v. Werner, 50 Ill. App. 297, affirmed in 151 Ill. 551; Hines Lumber Co. v. Ligas, 172 Ill. 315; Giles v. Diamond State Iron Co., (Del.) 8 Atl. 368; and Cole v. Warren M'fg. Co., 63 N. J. L. 626.\\nWhether deceased was guilty of negligence, contributing to his death, was likewise a question of fact for the jury. It is contended that his failure to see that the untapped joint in the primary wire rested against the metal brace was proof of his negligence It is proven that he was an experienced lineman, and that he climbed the pole in the usual manner. He ascended it on the side opposite the transformer, and the metal brace came between him and the exposed joint in the wire. There is evidence tending to prove that a person in his position could not see whether the wire came in contact with the brace or not; and, it being an unusual condition, he may not have been on.the lookout for it. He may have noticed that the insulation on other parts of the primary wire, which he could see, was sound and in good condition, and he may have supposed that the parts he could not see were equally good. He had a right to assume that defendant had performed its duty, and that the wires were normal, both as to place and condition, because the evidence is that it is the custom to tape such joints when made. The primary wire carried 2300 voltage, and the untapped joint; so close as 'to touch the -brace, made the position of deceased extraordinarily dangerous. He was not bound to anticipate such danger. A number of persons were present, around the pole, when deceased was killed, among them defendant's line foreman, and none of them knew that the primary wire was against the brace. It was not discovered until afterwards. That no other witness saw it, is evidence tending to disprove that deceased was negligent. And, that witness Rodg-_ ers climbed the pole a few minutes before, and found it charged and hot, is not conclusive that deceased was negligent. Why did not Rodgers discover the cause of its being charged ? Such evidence is a sword cutting both ways, and the jury considered it.\\nThere were two theories of the case, depending upon the scope of deceased's employment as affecting the risk which he had assumed, and both were fairly presented by the court's instructions to the jury. We find no error and affirm the judgment.\\nAffirmed.\"}"
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+"{\"id\": \"8632700\", \"name\": \"H. W. Vansenden v. Raymond E. Kerr\", \"name_abbreviation\": \"Vansenden v. Kerr\", \"decision_date\": \"1921-09-20\", \"docket_number\": \"\", \"first_page\": \"62\", \"last_page\": \"66\", \"citations\": \"89 W. Va. 62\", \"volume\": \"89\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T18:42:35.582284+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"H. W. Vansenden v. Raymond E. Kerr.\", \"head_matter\": \"CHARLESTON.\\nH. W. Vansenden v. Raymond E. Kerr.\\nSubmitted September 7, 1921.\\nDecided September 20, 1921.\\n1. Receivers \\u2014 Special Receiver Incurring Obligation Without Special Atithority is Personally Liable.\\nIf a special receiver, without special contract limiting his liability and without authority specially conferred or implied, enters into a contract with a third person, whereby he incurs money or other obligation, he is personally liable thereon, as in the case of executors, administrators an'd trustees on like contracts, (p. 64).\\n2. Same \\u2014 Declaration Against Special Receiver Individually 'for Money Advanced to Pay Interest on Receiver\\u2019s Certificate Held Demurrable. ,\\nA declaration against a special receiver in his individual right for money advanced'by plaintiff to pay interest on receiver\\u2019s certificates, which alleges want of authority in the receiver to borrow money to pay such interest, but does not aver want of authority to issue and negotiate such receiver's certificates hearing interest, is had on demurrer, the receipt given by the special receiver for such advancement showing that the money so advanced was to he paid out of the first money available for that purpose, (p. 65).\\n(Lyncui, Judge, absent).\\nCase Certified from Circuit Court, Monongalia County.\\nAction by H. W. Vansenden against Raymond E. Kerr. Demurrer to declaration sustained, and case certified.\\nAffirmed.\\nGlasscock & Glasscock,'for defendant.\", \"word_count\": \"1308\", \"char_count\": \"7810\", \"text\": \"Miller, Judge:\\nThe sufficiency of plaintiff's declaration being challenged by demurrer, the court below sustained the demurrer and certified the question to this court.\\nThe action was upon the following instrument, called a note in the pleading:\\n\\\"This is to certify that there is due and payable, out of the first funds available, to Thomas F. Barrett, or his assigns, fifteen hundred ($1500.00) dollars for money advanced to the undersigned Receiver to pay interest on the first issue of Receiver's Certificates for period October 1, 1918, to April 1, 1919.\\nMorgantown, W. Va., July 10, 1919.\\nRaymond E. KeRR,\\nSpecial Receiver.\\nMorgantown & Wheeling Railway Co.\\\"\\nThe averments of the declaration so describing and setting out the instrument are that the defendant thereby promised to pay Thomas F. Barrett, or his assigns, the sum of $1500.00; that he had no lawful authority as special receiver to make and execute the instrument, and thereby became personally liable for the payment of said sum so demanded, with lawful interest thereon; that at the time of the making and delivery of said note or certificate the defendant was not duly authorized as special receiver of said railway company to negotiate .any loan of money, and was not duly authorized to make, sign or deliver said note or certificate to said Barrett as such special receiver,' and had no authority whatsoever to bind or obligate the funds of the special receiver by accepting said loan or advancement, or by signing or delivering said note or certificate ; whereby it is alleged defendant is indebted to plaintiff, and is personally liable, in the full amount of said note or certificate, with interest from July 10, 1919, to date received, until paid; which sum, though often requested, he has not paid, to plaintiff's damages $10,000.00.\\nIn the written opinion of the judge of the circuit court the reason given for sustaining the demurrer is that the certificate may have been given before the receiver received the money, or it may have been advanced to him before the certificate was issued, and if the latter, it is clear, the opinion says, the purpose of the instrument was to give Barrett evidence of the fact that theretofore for some reason not stated he had seen fit to advance said sum to pay interest on the first issue of receiver's certificates for the period stated, and that the amount advanced was due Barrett and should be paid to him out of the first funds available, and if so the plaintiff had no cause of action against defendant personally.\\nNo brief or oral argument has been presented by counsel for plaintiff, nor is any authority cited in support of the ruling of the court upon the demurrer.\\nThe declaration in form is a nondescript and is very in-artistically drawn. But when analyzed, its affect is to aver that defendant, pretending to act as special receiver, but without authority in the premises, borrowed from said Barrett the sum of $1500.00 to pay interest on special receiver's certificates, and that being without such authority, he became liable to the assignee of the receipt declared on, as for money had and received for the use of Barrett and his assigns, for the sum so advanced. Unless in some way one so dealing with a special receiver acting without authority, and with knowledge of .the fact, binds himself to look to the estate or property in the hands of the receiver for payment of the obligation, the contract is primarily the personal obligation of the receiver. In such cases he has no responsible agent, whom he can bind by his contract. The law applicable to executors, administrators and trustees in like cases applies. Peoria Steam Marble Works v. Hickey (Iowa), 80 A. S. R. 296; Foland v. Dayton, 40 Hun. (N. Y.) 563; Kain v. Smith, 80 N. Y. 458; Brandt v. Siedler, 31 N. Y. Sup. 112; Haupt v. Vint, 68 W. Va. 657; New v. Nicoll, 73 N. Y. 127; Rogers v. Wendell, 61 N. Y. 540. In 1 Clark on the Law of Receivers, \\u00a7789 (h), p. 860-861, summarizing the rule in this country, it is said: \\\"If the receiver without the direct or explicit order of court, or without any implied power, yet under color of his office as receiver, enters into a contract with third parties, such contract is the contract of the receiver personally and individually, and he is primarily liable. If such contract is proper and beneficial to the estate, and if there are funds available, the liability maybe paid by order of the court out of such available funds. If there are no available funds, the receiver may have to pay such liabilities himself.\\\" No hardship is imposed upon the receiver by this rule, for if the contract has resulted beneficially to the estate in his hands, as the decisions say, he may report the matter and have the money paid out allowed him as a part of the expenses of his administration. Peoria Steam Marble Works v. Hickey, supra; Joost v. Bennett, 123 Cal. 424; New v. Nicoll, supra, 131.\\nBut it is not alleged that the defendant was not authorized to borrow money and issue interest bearing receiver's certificates therefor. Without such direct averment, must we not on demurrer, assume power in the receiver to issue such certificates and to borrow money thereon? If such certificates were authorized, the power, if not expressed, would be implied to make them bear interest, and if so, to pay interest thereon out of the funds in the receiver's hands available therefor. The certificate declared on shows on its face that Barrett had advanced $1500.00 to pay interest on the first issue of receiver's certificates, and that/ there was or would be due to him out of the first funds available the sum so advanced to pay interest. If there was power and authority in the receiver to issue and negotiate receiver's certificates, did that not amount to an agreement on the part of Barrett to look to the funds that might be thereafter available for payment of interest, and bring the contract within the exception to the general rule limiting liability of the special receiver, as stated in the authorities cited? We think the receipt must be so construed, and as protecting the special receiver from personal liability, provided, of course, the fact is, as presumed, that the receiver had authority to issue receiver's certificates bearing interest.\\nSuch being our view of the case, we affirm the ruling of the circuit court.\\nAffirmed.\"}"
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+"{\"id\": \"8633475\", \"name\": \"State ex rel. Roy J. Kelley v. City of Grafton et al.\", \"name_abbreviation\": \"State ex rel. Kelley v. City of Grafton\", \"decision_date\": \"1920-10-12\", \"docket_number\": \"\", \"first_page\": \"191\", \"last_page\": \"198\", \"citations\": \"87 W. Va. 191\", \"volume\": \"87\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T17:44:48.439376+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State ex rel. Roy J. Kelley v. City of Grafton et al.\", \"head_matter\": \"CHARLESTON.\\nState ex rel. Roy J. Kelley v. City of Grafton et al.\\nSubmitted September 21, 1920.\\nDecided October 12, 1920.\\n1. Municipal Corporations \\u2014 Without Police Power, Except as Expressly or Impliedly Delegated.\\nA municipal corporation possesses no inherent police power. It has only such regulatory authority as has been expressly or impliedly delegated to it by the Legislature, (p. 193).\\n2. Same \\u2014 Poioer to Grant License for Particular Purpose Governed, by State Law.\\nWhere a municipal charter confers upon the governing body of a city authority to license acts to be done or business to be carried on within its jurisdiction, but provides that the exercise of such authority shall conform to the laws of the state, its power to grant or refuse a license for a particular purpose is governed by the requirements of the law then in force, (p. 193).\\n3. Licenses' \\u2014 Statute Construed to Make Clerk of County Court Licensing Authority of County.\\nBy the enactment of chapter 102, Acts 1919, amending chapter 32, Code 1918, the Legislature has constituted the clerk of the county court the chief licensing authority of the county, (p. 195).\\n4. Same \\u2014 City Held Without Power to Refuse Permit to State Licensee.\\nSince the enactment of chapter 102, Acts 1919, the concurrent discretionary power which the law theretofore had conferred upon a municipal corporation in the granting of licenses for acts or business to be done or carried on within its jurisdiction no longer remains, and, though the city council or other governing body may still require the state licensee to obtain a municipal permit or license, and pay a fee therefor, as a condition of the lawful right to do the act or carry on \\u25a0such business, yet it no longer possesses authority to refuse to grant such license upon proper application therefor and tender of the requisite fee. (p. 197).\\n(WtiniAMs, President, absent.)\\nOriginal mandamus by the State, on relation of Eoy J. Kelley, against the City of Grafton and others.\\nWrit awarded.\\nO. F. WycTcoff and John T. Simms, for relator.\\nG. W. Ford, for respondents.\", \"word_count\": \"2551\", \"char_count\": \"14998\", \"text\": \"LyNCh, Judge:\\nThe corporate authorities of the city of Grafton^ being a mayor and two commissioners acting under the commission form of government, refused to issue to Eoy J. Kelley, after he had obtained a state license therefor, a municipal license or permit to operate pool tables at his place of business in the city upon his offer and tender of the required tax therefor, and to approve him as a person having the qualification necessary to be intrusted with the enjoyment of such privilege. To compel the grant of such privilege he obtained, at the suit of the state, a writ commanding respondents to comply with his petition therefor or show cause for refusing it. Disregarding the first alternative command, the mayor and commissioners attempt to justify their non-compliance (1) by invoking the provisions of an ordinance of the city of Grafton adopted May 1, 1911, and therefore prior to the date of the reorganization under the charter passed by the Legislature in 1913 (chapter 79,, Acts 1913); (2) by the disqualification of Kelley due to his association and connection with' other applicants, likewise refused because of conduct exhibited by them while engaged in the same business under a former license granted by them. The question presented relates to the power of a city to refuse to grant a license, for an act or business to be done or carried on therein, to one who already has obtained a state license authorizing him to do the thing in question.\\nConsidering these assignments in reverse order, we notice first that respondents' attempted justification of the refusal of the license is predicated upon the right to invoke for that purpose the police power of the city. But in that regard we call attention to and restate a rule, the frequent application of. which has made it a fixed principle of law in this state, that is, a municipal corporation possesses no essentially inherent power of that character but only such regulatory authority as has specifically been delegated to it by the state or is necessarily implied from powers expressly granted. Judy v. Lashley. 50 W. Va. 628; State v. Godfrey, 54 W. Va. 54; Improvement Co. v. City of Bluefield, 69 W. Va. 1; St. Mary's v. Hope Nat. Gas Co., 71 W. Va. 76; City of Benwood v. Public Service Commission, 75 W. Va. 127; State v. Porter, 84 W. Va. 398, 99 S. E. 508; and the recent case of Bissett v. Town of Littleton, 87 W. Va. 127, 104 S. E. 289, involving the validity of an ordinance purporting to regulate the closing hours of pool rooms. It is necessary, therefore, to examine the extent of the statutory authority, if any is conferred upon the city, from which it can lawfully justify its action.\\nThe ordinance invoked by the city council was passed in 1911 pursuant to the provisions of the charter then in force. Chapter 44, Acts 1899. Sections 11 and 12 of the ordinance, providing for the issuance of licenses such as the relator insists h-e is entitled to, make such right depend upon the assent of the city council, without which no such license shall be granted,'and not then unless the council \\\"shall be satisfied, and so enter upon its record, that the applicant for such license is not of intemperate habits, has not been convicted of a felony, and has not been convicted of selling intoxicating liquors on Sunday.\\\"\\nPor the.purposes of this decision it may be assumed, though not decided, that this ordinance lawfully was passed in accordance with the provisions of the charter then in force. Section 28, c. 44, Acts 1899, authorized the city council, whenever anything for which a state license was required was to be done in said citj1-, to require a city license therefor; and section 34, provided that \\\"the council shall prescribe, by ordinance, the manner in which licenses of all kinds shall be applied for and granted.\\\"\\n' The charter of 1913 (chapter 79, Acts 1913), which constitutes the present authority of the city, in section 3 provides that \\\"all by-laws, ordinances and resolutions lawfully passed and in force in the city of Grafton under its former organization, and not inconsistent herewith, shall remain in force until altered or repealed by the commission elected under the provisions of this act.\\\" This section requires, not only that the ordinances theretofore passed shall have been lawfully enacted, in order that they may continue in force and effect xinder the new charter, but that they shall not^be inconsistent with it. Section 19 of the charter of 1913 1 provides: \\\"The commission shall have the right to levy and collect taxes and grant licenses; provided, however, that the granting of such licenses shall not be repugnant to the constitution and laws of the United States or of this state.\\\"\\n' It may also fairly be assumed, for the purpose of this decision, that the power to grant, conferred by the first portion of the section, impliedly carries with it by necessary implication the power to refuse licenses. If it does not, then clearly respondents had-no right'to refuse the license applied for by petitioner. But if it does, the same implication applies to the second portion of the section quoted, thereby making the provision that the granting of licenses shall not be repugnant to the laws of this state equally applicable to the refusal to grant licenses. In other words, the procedure to be adopted with respect to the -granting of licenses is expressly made to depend for its validity tap\\u00f3n the laws of the state, and an ordinance passed under a prior charter, whose validity under the present is made to depend upon its consistency with it, likewise depends. upon the laws of the state, and in case of repugnancy the latter governs and controls. Hot only is this the express requirement of the charter of 1913, but it accords with the provisions of section 29, c. 47, Code 1918, relating to the authority of cities, towns and villages to enact ordinances for the purpose of carrying into effect their enumerated and implied powers.\\nTurning now to the general state law pertaining to the granting of licenses, it is apparent that prior to the enactment of chapter 102, Acts 1919, amending and re-enacting certain provisions of chapter 32, Code 1918,- and repealing others, it undoubtedly was the policy of the legislature to require, in many instances, both state and municipal licenses where the business to be carried on or the act to be done was within an incorporated city, town or village. For according to section 10, c. 32, Code 1918, \\\"the state license mentioned in the first section (including pool room licenses) shall be issued only when authorized by the county court of the county, except that when the act, occupation or business for which such state license is necessary is to be done or carried on in an incorporated city, village or town, the license shall be issued only when authorized under the charter of said city, village or town, by the council or license court thereof, as well os by the county court.\\\" This section, as disclosed by the portions which we have italicized, seems not only to require a double license, but from the use of the clause, \\\"only when authorized,\\\" to confer upon both the county court and municipal council a measure of discretionary power in the granting of such licenses. And doubtless relying upon this section, as well as upon the charter of 1899, the city of Grafton, in order to give effect to its discretionary power, passed the ordinance of 1911 prescribing the limits or measure of such discretion. Other sections of chapter 32, prior to the amendment of 1919, recognize this double authority and discretion.\\nBut section 10, as amended by chapter 102, Acts 1919, substitutes the mandatory \\\"shall\\\" for the clause, \\\"only when authorized,\\\" and omits all reference to city authority with respect to licenses. It reads: \\\"The state licenses mentioned in section one shall be issued by the clerk of the county court upon proper application filed with him.\\\" The legislative intent is clear to make the issuance of licenses a mandatory ministerial duty, not involving any element of discretion, and to constitute the clerk of the county court the chief licensing agent of the county. The intent to remove from the municipality the concurrent discretionary power which it could invoke under the old law is evidenced, not only by the significant omission of those parts of former section 10' conferring such power, but by the repeal of section 15 which expressly recognized the authority of municipalities to license acts and certain kinds of business within their borders; by the amendment of section 34 so as to give to the county court alone power to revoke a license for good cause, a power which theretofore had been vested in either the county court or council; and by the amendment of section 37, relating to assignment of licenses, by striking out all provisions relating to municipal powers. Most important, however, as showing the mandatory nature of the 1919 act respecting licenses, is the repeal of section 19, c. 32, Code 1918. Its provision was: \\\"No license for any purpose mentioned in the first section shall be granted unless the tribunal granting the same shall be satisfied, and so enter upon its record, journal or minutes, that the applicant for such license is not of intemperate habits, and has not been convicted of a felony, or who shall be convicted hereafter of selling intoxicating liquors on Sunday.\\\" It was this section apparently that served as the basis and model for the ordinance passed by the city of Grafton in 1911. Its repeal, read in connection with the modification or repeal of the sections above referred to, clearly shows* the legislative intent to constitute the county court clerk the state's chief licensing authority of the county, and to clothe him with no discretionary power, but to make it his mandatory duty to issue licenses upon proper application therefor, subject, however, to the right reserved to the county court by section 34, Acts 1919, to revoke such licenses for cause.\\nThis change in policy, however, does not prevent a municipality from requiring a municipal license for anything to be done within its borders, even though a state license for the same thing is also required. Tor 'whenever anything for which a state license is required is to be done within such city, town or village, the council may require a city, town or village license therefor, and may impose a tax thereon for the use of the city, town or village.\\\" Section 33, e. 47, Code 1918. But this, when considered in connection with chapter 102, Acts 1919, amenda-tory of chapter 32, Code 1918, evidently looks only to the financial interest of the city, town or village, and confers upon it an optional authority to require a license and impose a tax even though a state license also is required. The municipality, in the exercise of its discretion, may decline to require a license for such purpose, but if it does, it has no authority to refuse to grant it upon tender of the proper license fee and presentation of the state license granted by the clerk of the county court. The only restriction placed upon the municipality in requiring such license and tax is that the fee shall not be greater in amount than the state tax imposed for the same act, unless its charter reserves to the council the right to fix the rate of such license. Section 18, c. 32, Code 1918. Other provisions of the section last referred to, empowering the municipality, when authorized by its charter, to impose a penalty upon any person who, relying upon- his state license, attempts to do the thing therein licensed without first obstaning a license therefor from the municipality within whose borders the thing is to be done, are merely in aid of the collection by the municipality of its own license taxes, when it elects to require such a' license under the permissive statutes above referred .to.\\nFrom a consideration of these various statutes, the legislative intent to constitute the county court clerk the chief licensing authority of the county; to make the issuance of licenses by him a mandatory not a discretionary duty, subject only to the reserved power of revocation for cause: to give to a municipality authority, if it chooses to exercise it, to require licenses for the same things, where the act to he done or business to be carried on is within the borders of the city; and to empower it., when authorized by charter, to impose a penalty for failure to obtain such municipal license; is plainly apparent. But no authority is given to refuse to grant such license when properly applied for.\\nThe municipality is protected and safeguarded against disorder or disturbance of the peace1 through its power to abate nuisances by proper proceedings, and by its right to apply to the county court to revoke a license theretofore granted.\\nPor these reasons we award the writ.\\nWrit awarded.\"}"
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+"{\"id\": \"8633511\", \"name\": \"Mary J. Spriggs et al. v. James T. McCreery et al.\", \"name_abbreviation\": \"Spriggs v. McCreery\", \"decision_date\": \"1920-10-12\", \"docket_number\": \"\", \"first_page\": \"204\", \"last_page\": \"216\", \"citations\": \"87 W. Va. 204\", \"volume\": \"87\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T17:44:48.439376+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mary J. Spriggs et al. v. James T. McCreery et al.\", \"head_matter\": \"CHARLESTON.\\nMary J. Spriggs et al. v. James T. McCreery et al.\\nSubmitted October 5, 1920.\\nDecided October 12, 1920.\\n1. Estoppel \\u2014 Partitioners, Receiving ATlottments, Not Entitled Years After to Repudiate Partition.\\nIt after a \\u2019decree of partition is entered in a suit not 'brought for that .purpose hut by a creditor of one of the partitioners to subject his 'interest in the land partitioned to the payment of his debts, the several partitioners to whom allotments were so made take and hold in severalty the parts allotted to them respectively and thereafter sell, convey, and lease the land with reference to such partition, equity will not suffer them or their successors in title, years afterward, to repudiate \\u2022 such partition, (p. 213).\\n2. Trust \\u2014 Agent Fraudulently Acquiring Title to Principal\\u2019s Land Holds in Trust.\\nWhere an agent of one of such partitioners, during the agency, fraudulently and by false and fraudulent represen tations, and without consideration, acquires deeds and releases from Mm or others of a portion of the land 'allotted to his principal, the subject of his agency, he will toe treated as holding such land in trust for his principal, and required as such trustee to account for and convey the same to him. (p. 215).\\n(WiiiiAMS, President, absent.)\\nAppeal from Circuit Court, Raleigh County.\\nSuit by Mary J. Spriggs and others against James T. Mc-Oreery and others for partition and to set aside deeds as clouds on plaintiffs title. From a decree dismissing the bill as to defendants McCreery and Fuller, plaintiffs appeal.\\n.Reversed,; decree for plaintiffs.\\nG. M. Ward and James H. Guthrie, for appellants.\\nBumgardner & Preston, TF. H. Sawyers and Brown, Jackson & Knight, for appellees.\", \"word_count\": \"4966\", \"char_count\": \"27880\", \"text\": \"MilleR, Judge:\\nThis is a suit for partition brought by plaintiffs as heirs of the late Jackson Spriggs, who died in 1875, against the defendants, the principal object of which is to divide and partition among those entitled thereto a tract originally described as containing four thousand acres, but as claimed by plaintiffs containing by actual survey fifty-five hundred acres, situated in Raleigh County, and as incident thereto and necessary to a final disposition of the cause, to have set aside as fraudulent and void and as clouds upon plaintiffs' title; first, a deed from Joseph Soission 'and'wife to A. S. Fuller, dated December 1, 1896, purporting to convey to the grantee two thousand one hundred acres, part of the fifty-five hundred acre tract; second, a deed from A. S. Fuller and wife to James T. McCreery, dated December 15, 1896, purporting to convey to the grantee therein the said two thousand one hundred acres.\\nAnd likewise and for the same reason to have set aside and removed as clouds, first, a deed from James T. McCreery to A.' S'. Fuller, dated October 13, 1897, purporting to convey to the latter six hundred acres out of said larger tract; second, a deed from A. S. Fuller and wife to Frank M. Fuller, dated February 3, 1898, purporting to convey to the grantee therein said sis hundred acres; third,, what purports to be a deed from James S. Spriggs and others to James T. McCreery, dated March 8, 1907, purporting to convey to said McCreery the interest of the grantors therein in said two thousand one hundred acres.\\nThe decree below dismissed the plaintiffs' bill as to the defendants McCreery and Sarah M. Fuller, thereby adjudicating that the fifteen hundred acres of the land taken off the northwestern end or side of the tract claimed by plaintiffs and covered by said deeds, did not belong to the partitioners and that they were not entitled to have partition of that part of the land so claimed by them.\\nThe bill and proceedings show that the land of which partition is sought was acquired by plaintiffs' ancestor Jackson Spriggs from John Stewart and wife by deed of August 9, 1870, being described as one undivided third part of a tract of twelve, thousand acres, and being'parts of lots 5 and 9 of the Moore and Beckley survey, and which land was in 1871 returned delinquent, and later, in 1873, sold in the name of Charles Stewart's heirs, and purchased by one George 0. Bloomer; and it is alleged and proven that before the expiration of a year from the. date of sale Jackson Spriggs redeemed from Bloomer his interest in said land, as did also Soission and Wilhelm their interests therein,, leaving Bloomer possessed of the remaining interest in said tract. The land so returned delinquent and sold, and purchased by Bloomer in 1873, was a tract of about 15,733 acres, and considerable stress is laid by counsel for appellees upon the fact that the sales to Spriggs, and Soission and Wilhelm were of one undivided third of 12,000 not of 15,733 acres, but in the view we take of the case and the conclusion we have reached, this fact is not very important.\\nIn order to reach a correct conclusion upon the conflicting claims of appellants and appellees, we think it unnecessary to go back into the chain of title further than the decree of partition relied on by appellants, pronounced in 1880, in the suit of Francis and Dushane v. John Wilhelm and others, a suit by plaintiffs as creditors of said Wilhelm to subject his interest in said land to the payment of their debts. Strictly speaking that was not a partition suit; and most of the papers therein appear to have been lost, but the decrees therein have been produced in evidence, as well as a copy of the plat of the survey made therein for the purpose of such partition. It is considered by counsel that as that was not a suit between co-tenants or co-parceners for partition, but a creditors' suit, the court was without jurisdiction to decree partition, and that the decree was void, and that the immediate parties now engaged, in the .controversy may ignore that partition decree and return for a solution of the conflicting claims to the rights of their predecessors under the original contracts of purchase by which the undivided interests in the 12,000 acres were acquired from Stewart, and Bloomer, the tax purchaser; this upon the principles adjudicated and applied in Hoback v. Miller, 44 W. Va. 635, and Hull v. Hull, 26 W. Va. 1. The holding of these cases and others like them is simply that partition is only compellable by those entitled to partition. In those eases it was decided that a widow entitled to dower could not sue and have partition made between the parties rightfully entitled to partition.\\nBut we are here confronted with the fact that in that creditors' suit in 1880, the court determined by its decree that before the interest of the judgment debtor Wilhelm should be sold, a partition of the land should be made between the owm ers, wherefore on June 6, 1879, a decree was entered adjudging and ordering that three commissioners, of whom defendant James T. MeCreery was one, being first duly sworn, should proceed to lay off and .divide the real estate described in \\\"Exhibit D,\\\" having regard to quantity and quality, and assign one of the said three parts to George C. Bloomer, one to Joseph Spriggs' heirs, and the other to John Wilhelm and Joseph Soission, and to divide the latter third equally between the owners thereof. Said decree pronounced in said cause, on June D, 1880, upon the incoming of the report of the commissioners, James A. Hutchinson, surveyor, James T. MeCreery, and Robert Warden, unexcepted to, was that the report be confirmed, it appearing from s\\u00e1id report that the commissioners allowed to Jackson Spriggs' heirs 4000 acres off the south end of said land, and to John Wilhelm and Joseph' Soission 4000 acres next adjoining the lot assigned to- said Spriggs' heirs, and the remainder,, containing about 7733 acres, and being the northern and western portion thereof, to George C. Bloomer, and that they had made the division line between the Spriggs heirs and Wilhelm and Soission: \\\"Beginning at the south side of the original line of Jot No. 9 at the head of Seven Mile branch a branch of Pinch Gut a corner to Jas. Meadows, thence running North 25\\u00b0 East through lot No. 9 to the inner section of the out line on the north side of said lot and the division line between Wilhelm and Soission and George C. Bloomer, beginning on the south side of lot No. 5, 60 poles west of Robert Scott's corner on said line, and thence running North 50'\\u00b0 East to Qlade Creek near William Kidwell's lower corner, and thence down Glade Creek to the intersection of the original line.\\\" And the decree also shows that the division of the tract allotted to said Soission and Wilhelm, by boundaries designated and as described on the plat, had been -made in accordance with the direction in the decree of reference.\\nAfter this decree, according to the pleadings and proofs,- each of the partitioners took possession of the parcels allotted to them respectively and acquiesced in the partition thus made, without complaint from anyone then related to the title, for more than fifteen years. Indeed no one except the defendants not parties to that partition, up to the time of this suit, ever questioned the rights of the partitioners to the particular tracts awarded them. They all elected to take and hold in severalty according to the decree. They caused their respective tracts to be separately taxed and paid taxes thereon; they each leased the lands or parts thereof in severalty and took the rents, issues and profits thereof in the same way, and they and their successors in title have continued to do so down to the date of this suit, disturbed only by the defendant MoCreery in the manner alleged in the bill, after he became the trusted and confidential agent and friend .of plaintiffs for looking after their lands, paying taxes thereon, renting the lands and collecting the rents, and also for the purpose of making sale thereof.\\nThe bill alleges that defendant McCreery became such agent about the year 1890, and continued therein until the year 1915, shortly before the institution of this suit in 1917. And though McCreery in his answer, unsworn to, distinctly denies such agency, his own evidence admits the agency., substantially as alleged, and his letters and the documentary evidence, as well as the sworn testimony of numerous witnesses, establish the fact beyond any question..\\nThe bill alleged and the answer admits, that as partitioned in 1880, the dividing line of plaintiffs land as laid down on the plat of the surveyor ran from what is shown thereon as the western corner of James Meadows, on the south line of said lot No. 9, thence running N. 25\\u00b0 E. a straight line to the north side of said lot. That McCreery knew this line and its location, beginning at said corner^ is not only admitted by him but proven by his letters and by the leases he made as agent for plaintiffs, one of which leases covered a large farm within the boundary of the 1500 acres, to which he and the defendant Fuller are now laying claim. And that McCreery as agent fox plaintiffs took and had charge of all the lands claimed by plaintiffs up to said partition line from the beginning of his agency to about the time it terminated in 1915, there is no room for controversy, though in the meantime, as alleged and proven, he began as early as 1895, perhaps in 1893, to lay plans to acquire title surreptitiously to the 1500 acres in controversy. In 1893., as the record shows, he caused a survey of the plaintiffs' tract to be made by Milton Curtis, a surveyor, which disclosed that there were contained in the boundary about 5500 acres instead of 1000 acres as reported by the commissioners in the partition in 1880. Learning of this larger acreage he requested the surveyor to run a line parallel to the line run in 1880, beginning at or about the southeastern comer of the Meadows tract, so as to cut off the 1500 acres of the lot as partitioned and leave only 4000 acres. Curtis would not or did not do this, and later, in 1895, McCreery procured another surveyor, Lavender, to run or protract this new line, so as to cut off from those he was representing as agent 'the 1500 acres. After doing this, about December 1, 1906, he personally secured from Soission and wife, for a nominal con sideration., a quitclaim deed to A. S. Puller for the 1500 acres, and on December 15, 190'6, had Puller and wife, for a nominal consideration, execute to him a deed without any kind of warranty, for the same land ; and on October 13, 1907, McCreery, reconveyed to Puller an undivided six hundred acre interest in the southern part of the 1500 acres, the deed reciting a consideration of $20.00 and other valuable consideration. The manifest purpose of McCreery in procuring the deed from Soission and wife was to extinguish any claim they might have as owners of the tract partitioned to Soission and \\\"Wilhelm adjoining plaintiffs* land; and in procuring the deed from Puller and wife the evident purpose was to relieve the 1500 acres from any possible claim Fuller might assert as owner of the 7733 .acre tract allotted to Bloomer by the decree of partition. The purpose was not to correct any supposed error in the partition made in 1880, if any, but to clear the way for McCreery to get J 500 acres for nothing, or practically so, that had been allotted to and held by those with whom he stood in the relation of principal and agent. Having succeeded so far with his purpose, he then set out to get from his principals a quitclaim deed for the same land. They were then living, most of them, outside the state, and none of them knew anything about the land, unless it was Alexander R. Spriggs, one of the heirs, a lawyer it seems, and at one time attorney in fact for his coheirs, but who for the greater part of the time had been out of the state, a part of the time in Iowa. To all of them he falsely represented the facts and succeeded,' in March 1907, in inducing James C. Spriggs and wife, William Wallace and Margaret B. and Anna Vance, his daughters, and James Walter and Elvira J. Walker, his wife, a part of the heirs of the said Jackson Spriggs, to execute to him without consideration, except a mere nominal one, a quitclaim deed for said 1500 acres. This deed, however, was not executed in person by Anna M. Vance, but McCreery procured her sister Margaret to sign the same as attorney in fact, knowing she had no authority, and afterwards wrote Mrs. Vance, when she demanded a return of the deed, that it had gone to record and could not be withdrawn, and that she had better procure from her sister a power of attorney in order to protect herself. To procure this deed McCreery, about February 14, 1907, addressed letters to the heirs, and saw at least one of them in person, representing to them that it was necessary to sign the deed to clear up the title preliminary to a contemplated sale thereof; that, the surveyor's mistakes had included 1500 with the 4000 acres, which had not been discovered for several years thereafter, which had complicated matters; and to one of them at least he said: \\\"There are some parties trying to disturb the title on account of this mistake in the surveyor,\\\" which, he said, \\\"I will explain fully to you in my next letter.\\\" When Mrs. Walker, one of the heirs, received the letter, she answered, proposing to send her son-in-law out to look into the matter. McCreery protested that this was wholly unnecessary. And on one occasion, when a partition of the 4000 acres was suggested, he protested that this was unnecessary and would complicate things. On December 30, 1896? McCreery wrote Alexander E. Spriggs, then in Iowa, relating to a sale of the property: \\\"I am offering the 4000 acres for I know there will be trouble about the part that was cut off from Dushane and we cannot get a clear abstract of title. Fuller and Bloomer claim.that part but they cannot get it, for it belongs to Dushane. So make a deed for the 4000 acres at once as directed and I will notify you in what bank to deposit it as soon as the deed is ready. I can sell the other part as soon as it is decided who it belongs to.\\\" The purpose here disclosed was to induce the Spriggs heirs to make a deed for 4000 acres, exclusive of the 1500 acres, and thus commit themselves to that boundary. At the time McCreery wrote that letter, he had already procured the deed for the 1500 acres from Soission and Fuller, and from Fuller and wife to himself, and had the same on record. To give some color to his pretentions that persons were stirring up trouble about the title of the Spriggs heirs, he introduced a letter purporting to have been written to him by Col. James H. Huling, who had an option to buy the land, dated April 12, 1907, in which he purports to have said: \\\"In our investigation of the title to the 4000 acres of Jackson Spriggs heirs we find that by survey (only) that there has been tacked on to the Spriggs land 1500 acres of land or more or less by incompetent survey. We find the 1500 acres is part of the unsold land of Col. A. S. Fuller and belongs to him or his assignees and the Spriggs heirs have no claim on it except a color of title which may affect the title to the 4000' acres unless you at once get a quit claim from the heirs, this I advise you to do at once, or our people will be compelled to drop the 4000 acres out of the purchase.\\\" At the date of this letter McCreery had already procured from Fuller a deed for his supposed interest, and had also the quitclaim deed from part of the heirs of Spriggs, which is sought to be set aside by this suit. We can not say it is so, but this letter of Huling's has many earmarks of a fabrication, or was procured by McCreery for the purpose of bolstering up his fraudulent scheme and design to get from his principals this 1500 acres of land, then become very valuable, for no consideration whatever. Another piece of evidence showing intent to defraud is the suit of Sehon, a Stewart heir, against Bloomer, the tax purchaser, to set aside the tax deed. McCreery was made a party to that suit, and in his answer he denied the charge in the bill that the two tracts partitioned to the Spriggs heirs and to Soission and Wilhelm, and the other tract allotted to Bloomer, contained much larger acreage than therein mentioned. In that suit McCreery procured counsel to appear and to file an answer for the Spriggs heirs, which he relies on in this suit as an estoppel, in which they are made to admit that on March 8, 1907, they made a deed to McOfeery conveying said 1500 acres to him out of said 4000 acres so conveyed to them by Bloomer. Though named as parties to the bill, they knew nothing of it, and counsel was not authorized by them to make any such admission. But as there was no issue in that suit between them and McCreery, he can not successfully rely on that admission nor the decree dismissing the Sehon bill, as an estoppel upon them to contravene his rights to the 1500 acres.\\nThere are so many other matters showing McCreery's fraudulent purpose that they can not be detailed here. Enough has been said to show his relationship of agency and his fraudulent design upon plaintiffs' property. Much stress is placed by him in defense upon the fact that Alexander R. Spriggs gave some attention to the land, and that in some letters written by him to one Scott, who had called his attention to the fact that an effort was being made to rob him and the other heirs of a part of the land, and proposing to assist them, not naming anyone engaged therein, and in which Spriggs said in substance that the matters were in the hands of McCreery, and that his people h\\u00e1d their complement of the acreage and were protected by the decree of partition, and that there was no question about the title. Spriggs is shown to have had perfect confidence in McCreery, who had advised him that other persons were trying to stir up trouble, and advising against allowing himself to be disturbed thereby. That in this and other ways McCreery succeeded in deceiving Alexander R. Spriggs, as well as the other heirs, the record leaves us in no doubt whatever; and the record is wholly wanting in showing any disclaimer by Alexander R. Spriggs of any part of the 1500 acres. He is shown to have been on the land once in company with McCarthy, a sub-agent of McCreery; but McCarthy refused to say on the witness stand that Spriggs ever pointed out any line to which he claimed other than the line decreed in 1880. One of the. plaintiffs' tenants was-then living on that part of the tract covered by the 1500 acres, under a lease by McCreery as agent for the Spriggs heirs, and paid rent as such tenant.\\nIn the face of this record what does the defendant McCreery offer in defense of his title to the land claimed by plaintiffs? First, he would have, us go back to the original contract of Jackson Spriggs for the third of 12,000 acres, and the contract with Bloomer, the tax purchaser, redeeming the land from the tax sale, and to now correct the alleged mistake in the partition decree, for which, if a mistake, he as one of the commissioners of the court is in part responsible. In our view of the case it is wholly immaterial whether or not a mistake was made in laying off the Spriggs land in the Francis and Dushane suit. The fact is that, as therein allotted the Spriggs heirs, they claimed the land, and that McCreery as agent' claimed it for them up to the time and after he discovered le supposed excess of acreage by survey made by Curtis, sur veyor, in 1893. Although he shortly after this began to lay his plans to get that excess o\\u00ed acreage for himself, it was not until years afterwards that he in any way disclosed to his principals that there was any dispute about the title to the land allotted to them in 1880, and he never in fact disclosed to them until after he obtained the deed in 1907, from a part of them, that he was intending to acquire title to the 1500 acres without consideration, in the manner shown. Nor does it matter that the decree of'partition may have been pronounced without jurisdiction; the parties thereto elected to take and hold under it; it amounted at least to a parol partition of the land, and all the parties thereafter held and sold and conveyed with reference to that partition. A court of equity would not suffer the parties to such a partition, after so many years, to repudiate it, and certainly will not permit McCreery to do so in the interest not of the original partitioners but in consummation of his evil purposes to get from his principals what -belongs to them. Freeman on Cotenancy and Partition, sec. 402. Such \\u00e1 partition and possession under it will take the case out of the statute of frauds. 1 Tiffany on Real Property, sec. 203.\\nAnother proposition neutralizing defendants' theory of a void decree of partition is that plaintiffs' ripened their right into good title in -severalty as against their co-tenants, by color of title and adverse possession under it. In Bussell v. Tennant- et al.. 63 W. Va'. 623, point 4 of the syllabus, we held that, \\\"A tenant in common in sole possession of the land, may make his possession adverse to his fellow-tenant, by repudiating or disavowing the relation of tenancy in common between them and any act or conduct of his signifying intention to hold, occupy and enjoy the premises exclusively of which the tenant out of possession lias knowledge, or of which he has sufficient information to put him upon inquiry, amounts to an ouster of such tenant, and from the time when he has notice thereof the possession of the other party is adverse.\\\" And we held in that case that where adv\\u00e9rse possession is so established against \\u2022a cotenant the deed, will, patent or other intrument under which both had claimed originally operates in favor of the claimant by adverse possession as color of title so as to extend to unmclosed lands. And as affirming the same proposition we also refer to our other cases cited, of Adkins v. Spurlock, 46 W. Va. 139; Cochran v. Cochran, 55 W. Va. 178; Justice v. Lawson, 46 W. Va. 163; Cooey v. Porter, 22 W. Va. 120; and Randolph v. Casey, 43 W. Va. 289.\\nAnother theory relied on is that plaintiffs had abandoned the land west of the line run from the eastern comer of the Meadows tract, and between it and the original line of the partition decree of 1880. MeCreery had that line run for his own purposes, and there is not a particle of evidence justifying the conclusion of any such abandonment by any one ' of the parties with knowledge of the facts which were for years concealed from them by MeCreery. On the contrary the evidence shows that although MeCreery was in the meantime pursuing his purpose to acquire the land, he continued to rent it as the land of plaintiffs.\\nAnother proposition is that the deed from James C. Spriggs and others to MeCreery^ one of the deeds attacked for fraud in its procurement, should be treated as a correction of the supposed error in the decree of 1880. That deed does not purport to correct any error; besides it is not between the parties to the partition. It does not purport to disturb the partition; it leaves the original partition stand as to every party to it; its only purpose, so far as MeCreery is concerned, was to get all the land allotted to plaintiffs between the partition line laid down on the plat and the line which he had run for his own purposes from the eastern corner of Meadows' land.\\nAnother principle which entitles plaintiffs to relief against MeCreery is that an agent or attorney while standing in that relationship will not be permitted to deal with the subject of the agency so as to obtain any part of it for himself. And any interest therein obtained by him for the purpose of perfecting or clearing title thereto in himself will be treated as accruing to his principal, and he will be regarded in equity as holding it in trust for his principal. Keenan v. Scott, 64 W. Va. 137; Newcomb v. Brooks, 16 W. Va. 32; Dorr v. Camden, 55 W. Va. 226; Central Land Co. v. Obenchain, 92 Va. 130; Segar v. Edwards, 11 Leigh 213; Reilly v. Oglebay, 25 W. Va. 36.\\nA. S. Fuller and bis successors in title stand in no better position, in respect to the rights of plaintiffs, as to the 600 acres within the 1500 acre tract, than McCreery stands with reference to the residue. The record discloses such a state of facts and circumstances with regard to the transactions between McCreery and A. S. .Fuller that we may properly conclude that the latter had notice of McCreery's agency. No possession was ever taken under these fraudulent deeds. Nor does it appear from the record or other evidence that McCreery paid A. S. Fuller anything for his conveyance except a nominal consideration recited in the deed; nor did Fuller on the other hand pay McCreery anything for the re-conveyance to him of the 606 acres. So that there is no reason for withholding relief against him in favor of plaintiffs.\\nOur decision will reverse the decree below, and set aside and annul the deed from James S. Spriggs and others to James T. McCreery, of March 8, 1907; also the deed from said Me-Creery to A. S. Fuller, of October 13, 1897; and the deed from said Fuller and wife to their son F. M. Fuller^ of February 3, 1898; as fraudulent and void, and remove tire same as clouds upon the title of plaintiffs. But as to the deed from Joseph Soission to said A. S. Fuller, of December 1, 1896, and that of A. S. Fuller to said McCreery, of December 15, 1896, the decree will be that in so far as either of said deeds undertakes to vest title in said McCreery, that he took and holds the same in trust for plaintiffs, and that he shall make and execute a deed quitclaiming to them any and all interest in said land acquired thereby; and the cause will be remanded to the circuit court for further proceedings therein as directed herein, and further according to the rules and principles governing courts of equity.\\nReversed; decree for plaintiffs.\"}"
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+"{\"id\": \"8633792\", \"name\": \"Ashby Adams v. John L. Tilley\", \"name_abbreviation\": \"Adams v. Tilley\", \"decision_date\": \"1920-10-26\", \"docket_number\": \"\", \"first_page\": \"332\", \"last_page\": \"339\", \"citations\": \"87 W. Va. 332\", \"volume\": \"87\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T17:44:48.439376+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ashby Adams v. John L. Tilley.\", \"head_matter\": \"CHARLESTON.\\nAshby Adams v. John L. Tilley.\\nSubmitted October 19, 1920.\\nDecided October 26, 1920.\\n1. Fobcible Entry and Detainer \\u2014 Where Owner Peaceably Enters and Takes and Retains Possession the former Possessor Cannot Recover Possession.\\nIf an owner of land in possession of another having no title thereto, nor right of possession thereof, enters upon a portion of the same peaceably, that is, without violence or threat of violence, express or implied, to the occupant or his representatives, an'd retains possession thereof, the person whose \\u25a0possession has been so irrupted upon, is not entitled to recover from such owner possession of the land so taken by him. (p. 334).\\n2. Same \\u2014 \\u25a0True Oioner\\u2019s Peaceable Entry is Not Unlawful.\\nAn entry upon land by the true owner thereof is not unlawful, unless effected by force, (p. 334).\\n3. Same \\u2014 One Ousted by Forcible Entry by Owner May Recover Possession from Owner.\\nIn the case of a forcible entry upon land in the possession of another, having no title nor right of possession thereof, by the true owner, the party ousted by such an entry may recover the possession thereof from him, but not otherwise, (p. .334).\\n4. Same \\u2014 Owner\\u2019s Peaceable Entry on Land in Another\\u2019s Possession is Not a Forcible Entry.\\nAn entry upon land in the possesison of another, by the true owner, merely against the will of the former and in a peacable manner, is not a forcible entry, (p. 336).\\n5.Deeds \\u2014 Call for Description Held Admissible to Identify Land Granted \\\"With That Reasonably Within the Description.\\nA call in a description in a 'deed, susceptible of application to a tract of land owned by the grantor at the. date of execution -thereof, for monuments like some of those mentioned in the title papers under which he held such tract, is admissible evidence tending to prove identity of the land granted by the \\u2022 deed with so much of the land so owned as can be reasonably brought within the description, (p. 336)..\\n6. Same.\\nA description in a deed executed, upon a valuable and substantial consideration, by one having perfect title to a tract of land claimed under the grantee in the deed, which calls for monuments like some of those mentioned in such title papers and is clearly susceptible of application to some of the land so owned before the grant, as is shown by the testimony of an experienced surveyor, based upon his surveys thereof and of adjoining and neighboring tracts, is sufficiently definite and certain to include so much of the land so owned and claimed as can be reasonably brought within it, as aforesaid, and to make such deed a valid link in the claimant\\u2019s chain' of title thereto, in the absence'of opposing evidence, (p. 336) '.\\n(WmixiMS, Pbesident, absent).\\nError to Circuit Court, Wyoming County. \\u25a0\\nAction of unlawful entry and detainer by Ashby Adams against John L. Tilley. Judgment for plaintiff, and defendant brings error.\\nReversed and remanded.\\nA. W. Reynolds, Col. Childers \\u00e1nd M. P. Howard, for plaintiff in error.\\nR. D. Bailey, F. E. Shannon, M. F. McUhrny and R. F. Hughes, for defendant in error.\", \"word_count\": \"2505\", \"char_count\": \"14243\", \"text\": \"POEEENBARGER, jTJDGE :\\nThe judgment and practically directed verdict for the plaintiff, complained of in this action of unlawful entry and de-tainer between lessees, in which recovery of the possession of 11.2 acres of land is sought, stand upon the hypothesis of possession of the plaintiff, irrupted upon by the defendant, in the absence' of good title in his lessor. The plaintiff made no effort to prove title in his lessors. He relied solely upon his possession under leases to him from the First National Bank of Pine-ville and two individuals, Dottie Wikel and C. M. Wikel, dated, respectively, March 1, 1918 and March 1, 1919, and the theory of a wrongful entry on the land bjr the defendant.\\nHe invoked the doctrine of forcible entry and the trial court evidently applied it, by giving an instruction authorizing a verdict for him, if the jury believed the defendant had unlawfully entered upon the premises and withheld them from him even though they further believed the land belonged to the defendant's lessor. ' The defendant endeavored to prove title in his lessor and the instruction just mentioned implies that there was evidence of such title.\\nThe proposition asserted by that instruction does not accord with the law, unless the entry was forcible in the legal sense of the term; and, since there is no evidence at all of a forcible entry, it is manifestly wrong. If it be assumed that the entry was unlawful, for want of title in the defendant's lessor, the plaintiff being in possession at the time, and would have justified recovery upon that fact and possession in the plaintiff, it was not for those reasons forcible. Franklin v. Geho, 30 W. Va. 27, 35; Fisher v. Harman, 67 W. Va. 619; Feder v. Hagen, 64 W. Va. 452; Duff v. Good, 14 W. Va. 682; Olinger v. Shepherd, 12 Gratt. 462; Pauley v. Chapman, 2 Rob. 235. These decisions emphatically deny that an entry merely against the 'will of the occupant is forcible. It would be both useless and wasteful of time and space, to quote from them for confirmation of the interpretation here put upon them. The rule is different in some other states, but it is settled here as above stated, in accord with an overwhelming weight of authority.\\nThe plaintiff resided on a portion of the land covered by his leases lying on the south side of a stream, and the defendant entered into possession of another unenclosed portion thereof, lying on the north side of the stream, without violence or threat of violence. An agent of the lessor of the latter placed some fence wire on the ground, with which a space about one hundred feet square was fenced up by the lessee with some assistance, and then potatoes were planted in that space. There is not the slightest evidence of either violence in the entry or any threat of violence, express or implied, under which it may have occurred. The acts done on the land after entry are not evidence of force in the entry.\\nIf, however, the plaintiff's actual possession extended beyond the stream and covered the land in controversy and there was neither evidence nor proof of title thereto in the defendant's lessor sufficient to sustain a finding of such title, the error in the instruction given for the plaintiff was harmless. In substance and effect^ it was a direction to find for the plaintiff, and, if a verdict for the defendant could not have been sustained on the evidence, the court could have properly directed a verdict for the plaintiff. Hence, it is highly important to determine whether the defendant proved title in his lessor. If he did, the plaintiff had no shadow of right to recover, the entry having been peaceable.\\nThe title of the defendant's lessor starts with a patent from the Commonwealth of Virginia to John Mullins for 36 acres of land including the subject of this controversy. He conveyed that land together with 10 acres out of a 31 acre tract to his son, John W. Mullins, who conveyed by the. same description to John M. Sizemore. The next deed made by Wilson T. Gadd and wife and John M. Sizemore to Edward Lambert is the one in which, it is claimed, the chain of title breaks, by reason of indefiniteness and uncertainty of description. It admittedly does not convey any pa^t of the 36 acre tract lying south of' the stream running through it, the Big Fork of the Guvandotte River, nor call for any of its lines or corners south of the stream. But it calls for a \\\"black oak and mapl'e\\\" and \\\"4 pop-paws chestnut and birch,\\\" just as the patent calls for them. As to them, it uses the same terms. If it conveys the part of the Mullins patent lying north of the stream, agreeably to the claim made for it, these calls and others, \\\"the loer end said survey,\\\" and \\\"with the meanders of the river up,\\\" can be readily applied to it. The two Mullins 'deeds describe the \\\"black oak and maple\\\" as being a corner of the \\\"Sugar Run Survey,\\\" necessarily lying nearly east of a portion of the Mullins tract and north.of part of it. The Gadd-Sizemore deed calls for another corner of the Sugar Run Survey, farther east, and then for the lines of \\\"said survey\\\" to a \\\"black oak and maple.\\\" These lines must come down the river in the direction of the. \\\"black oak and maple\\\" corner of the Mullins patent, for the description proceeds thus: \\\"thence with the lines and comers (of a tract not named) to the loer end said survey to 4 pop-paws chestnut and birch thence with the meanders of the river up oppersit a corner of a 24 acre syrvey thence with the lines to a white oak on the bank thence crossin the river to the beginning.\\\" If they did 'not run down the river, it would be impossible to carry the description back up the river. Running in that direction and following lines of the Sugar Run Survey to a \\\"black oak and maple,\\\" it is reasonably certain that this description reaches the black oak and maple described in the Mullins deeds as a common corner of the Sugar Run Survey and the Mullins patent. There is no proof as to whetheT the Sugar Run Survey lies between the first line called for and the river or back of that line, but that is immaterial, as the lines would reach the corner of the Mullins survey in either case. From this point the description runs with lines to the lower end of a survey. The northern lines of the Mullins survey are the only disclosed lines that can answer this description and, following them., the paw-paw, chestnut and birch corner of the survey is reached. Support of this view is found in the fact that the first Mullins deed conveyed, with the 36 acre Mullins survey, 10 acres out of a 31 acre survey \\\"lying at the mouth of Sugar River,\\\" which is shown on the plat as a long narrow strip on the north side of. the Big Fork of Guyan-dotte River, the north lines of which correspond well with the description of the first lipes called for in the Gadd-Sizemore deed, Tested by the scale on the plat filed this strip is not over 750 feet wide at the western end, and narrows down in its course to less than 100 feet and then widens again. A 101 acre area out of it may not reach beyond the eastern corner of the Mullins survey and probably does not. Sizemore got this 10 acre lot with the Mullins survey. The deed in which Gadd joined him applies with reasonable certainty to it and so much of the Mullins survey as lies north of the river. An engineer who has surveyed the Mullins tract and all other around and adjoining it swears the plat correctly delineates the Gadd-Sizemore conveyance, and, as put on the plat, it includes the land in controversy.\\nBailey, who prepared the plat, had no personal knowledge of the land, lines or corners. Carr, who furnished him the information from which he made it, had surveyed many, if not all, of the adjoining and neighboring lands, as well as the tracts delineated on the plat, but he did not testify that he was able, from personal knowledge, to identify the lines and corners. If he had been, his evidence would have been much more satisfactory and valuable. Nevertheless! the location of the Mullins survey is not in controversy, and his surveying, as testified to by him, ties on to that survey, and is supported by the documentary evidence. The plat merely illustrates or delineates the documentary description and his work done upon the- ground, and he swears he was able, hv surveying, to bring the land in controversy within the description found in the Gadd-Sizemore deed, in the manner above indicated. The de scription in that deed agrees in part with the description of land conveyed to Sizemore. He owned the land in controversy, under a description found partly repeated in the deed in which he joined G-add in the conveyance to Lambert. His title papers extended up the river, from tire, land in controversy, just as the description in said last mentioned deed does, and as the testimony of the surveyor shows it may do with a high degree of consistency. The deed recites a valuable and substantial consideration, a fact from which it may be inferred the grantee expected to acquire title. As Sizemore had the legal title to the land in controversy and at least color of title to the additional 10 acres and his deed calls for monuments of exactly the same kind as are called for in his title papers, the jury could have found, in the absence of evidence to the contrary, that a conveyance of the land in controversy was intended by the parties to the deed. The state of the title, the apparent purposes of the parties to the deed, the calls for like monuments in this deed and the prior deeds and tire susceptibility of application of the description to the land in controversy, all combined, constitute very substantial evidence of the identity of the subject of the conveyance. Two patents calling for timber as monuments in the same terms, without other words of identity, are admissible on the question of identity. Camden v. Haskill, 3 Rand. 462. On a question of taxation of land, raised in an action of ejectment, proof of taxation of a tract of land corresponding in area and distance and direction from the court house, with the tract in controversy, is admissible. Sulphur Mines Co. v. Thompson's Heirs, 93 Va. 393. These, authorities clearly sustain the view that the facts and circumstances to which reference has been-made are admissible and probative evidence on the question of identity of the land in controversy with part of that conveyed by the\\\" Gadd-Sizemore deed. They 'make a prima facie case which is unopposed in any warq and the jury could not have properly found against it.\\nFrom this deed down to the Pocahontas Coal and Coke Company, the defendant's lessor, the chain of title is clear and unquestionable.\\nIt results from the conclusions above stated, that the court erred in giving plaintiffs instruction No. 2, wbicb bas been here interpreted and also in refusing to give an instruction asked for by the defendant, wbicb if given, would have directed a verdict for him. Two other instructions asked for by him and based upon the evidence of title and peaceable entry should have been given also.\\nThe judgment will be reversed, the verdict set aside and the case remanded for a new trial.\\nReversed and remanded-.\"}"
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+"{\"id\": \"8633809\", \"name\": \"Walker v. Gamble et al.\", \"name_abbreviation\": \"Walker v. Gamble\", \"decision_date\": \"1914-09-15\", \"docket_number\": \"\", \"first_page\": \"706\", \"last_page\": \"709\", \"citations\": \"74 W. Va. 706\", \"volume\": \"74\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T23:57:44.941280+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Walker v. Gamble et al.\", \"head_matter\": \"CHARLESTON\\nWalker v. Gamble et al.\\nSubmitted September 4, 1914.\\nDecided September 15, 1914.\\nJudgment \\u2014 Set-Off of Judgments \\u2014 Forthcoming Bond.\\nA forthcoming bond taken on an execution and thereafter forfeited, having under the- statute the force of a judgment, may, in a proceeding to obtain execution thereon, be the subject of set off by a judgment which has been rendered in favor of the principal obligor in the forthcoming bond against the obligee therein.\\nError to Circuit Court, Hardy County.\\nProceeding to obtain execution on a forthcoming bond by Frank Walker against H. L. Gamble and others. Judgment for plaintiff, and defendants bring error.\\nReversed and Remanded.\\nW. H. Gamble, for plaintiffs in error. \\u25a0\", \"word_count\": \"1151\", \"char_count\": \"6623\", \"text\": \"BobiNSON, Judge :\\nUpon a motion for the award of an execution on a forthcoming bond the principal obligor in the bond sought to set off against it two judgments in his favor against the' obligee in the bond. These judgments had been rendered subsequently to the rendition of the judgment out of which arose the forthcoming bond. The court would not entertain the. claim of set off. Should it have been entertained? ' That question alone is presented by the record.\\nIn 6 Enc. Dig. Va. & W. Va. Rep. 439, it is broadly stated that a forthcoming bond taken on an execution is not the subject of set off, and Allen v. Hart, 18 Grat. 722, is cited for the proposition. No doubt the proposition is true as to ordinary claims offered in set off against such forthcoming bond. The decision referred to, however, does not necessarily determine that it is so. The decision merely determines that a forthcoming bond taken on a distress for rent is the subject of set off. However, in principle it would seem that a forthcoming bond taken on execution, which by the statute has the force of a judgment, can no more be set off by ordinary claims than any other judgment. But the ease before us involves a wholly different principle.\\nThe proceeding under review was simply one to enforce a judgment. The plaintiff in the motion by statutory process sought the enforcement of a judgment against the defendant in the motion. The forfeited forthcoming bond was, virtually, a judgment which the law had given the plaintiff against the defendant. The former asked that he have execution on it. The latter asked to off set it by judgments which the law-had given him against the plaintiff. Could this not be done? There was certainly nothing in the form of the proceedings forbidding it. In other words, may not a judgment-be off set by a judgment? In reason it should be so, and in this instance we find the law conforming to reason, as it invariably should. The decisions in point are numerous. The generally accepted doctrine of the subject is thus stated by a leading author: ' ' The satisfaction of a judgment may be wholly or partly produced by compelling the judgment creditor to accept in payment a judgment against him in favor of the judgment debtor; or in other -words, by setting off one judgment against another. This is usually brought about by a motion in behalf of the party who desires to have his judgment credited upon or s.et off against a judgment against him. The court in a proper case will grant the motion. Its power to do this cannot be traced to- any particular statute, and exists only in virtue of its general equitable authority over its officers and suitors. This authority -was formerly restricted to courts of equity, but is now very generally exercised by courts of law. The judgments sought to be set off against each other may have been rendered in the same or in different courts. In the first case there can be no difficulty ; but in the latter it has been sometimes held that a court of law was inadequate to afford relief, and that resort to chancery was therefore unavoidable. This position is believed to be untenable. The court of law in wdiich the judgment is entered can give relief, by virtue of its equitable power, and may direct that the judgment of another court be credited upon or set off against its judgment, except when the rights of the parties are too intricate and complicated to be adjusted elso- where than in equity. The exception is, however, but a recognition of the general principle, every where conceded, that the setting off of one judgment against another rests in the sound discretion of the court, and will not be compelled except when by so doing the court can accomplish substantial justice between the parties. It is well settled, both in England and in this country, that judgments in cross-actions may be set off, the one against the other, when the parties in interest are the same, on motion addressed to the court in which one or both of the actions is pending.. If the amounts are equal, both will be satisfied. If the amounts are unequal, the smaller will be satisfied in full, and the larger to the extent of the smaller, and an execution will be issued for the balance. The party seeking the benefit of a set-off should make his motion therefore in the court in which the judgment against him was recovered.\\\" 2 Freeman on Judgments, sec. 467a.\\nIn this proceeding the person claiming the set off was the principal in the forfeited forthcoming bond. The fact that execution was sought against both the principal and surety in the bond would not make unavailing a claim of set. off by the principal alone, in view of the spirit of our statutory law of set off. The proceeding may well be considered a suit, within the contemplation of Code 1913, ch. 126, sec. 4. Indeed a proceeding for execution on a forfeited forthcoming bond is in fact, by the terms of the statute authorizing the same, Code 1913, ch. 142, see. 4, a suit for judgment on the forfeited bond \\u2014 a suit for a judgment on a judgment in order to obtain the execution which the preceding section giving the forfeited bond the force of a judgment does not allow. But, notwithstanding* all this, we conceive that the inherent powers of the court for the proper setting off of one judgment against another are broad enough equitably to allow the set off to the principal even though a surety is bound with him. Pierce v. Bent, 69 Me. 381.\\nNo reason appears for the rejection in this proceeding of the defendant's claim of set off. The court erred in- not entertaining the defendant's so-called plea, in substance the defendant's counter motion. The judgment will be reversed and the case remanded' with direction to entertain the motion of the defendant for an allowance of his judgments against the judgment sought to be enforced against him by the plaintiff.\\nReversed and Remanded.\"}"
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+"{\"id\": \"8633842\", \"name\": \"The City of Elkins v. Elkins Electric Railway Co et al.\", \"name_abbreviation\": \"City of Elkins v. Elkins Electric Railway Co.\", \"decision_date\": \"1920-11-23\", \"docket_number\": \"\", \"first_page\": \"350\", \"last_page\": \"357\", \"citations\": \"87 W. Va. 350\", \"volume\": \"87\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T17:44:48.439376+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The City of Elkins v. Elkins Electric Railway Co et al.\", \"head_matter\": \"CHARLESTON.\\nThe City of Elkins v. Elkins Electric Railway Co et al.\\nSubmitted October 26, 1920.\\nDecided November 23, 1920.\\n1. Ijnubmnity \\u2014 Bond Providing for Execution by Two Principals is Not Binding on Surety Unless so Executed or Unless Principal Not Executing it is Otherwise Bound.\\nA bond conditioned to pay to a municipal corporation such damages as may .be done to its streets by the removal ofi street railway tracks therefrom, providing on its face that it is to be executed by two principals and a surety, to be binding upon such surety must be executed by both- of such principals, unless the one not executing it is bound directly to the obligee therein by law or by contract to perform the obligation of the bond. (p. 353).\\n2. I1*rauds, Statute of \\u2014 Indorser's Belief from Corporations Debts by Fund Derived from Sale of its Property Held no Consideration for Sis Oral Promise to Secure Fund.\\nThe fact that one, who is a large stockholder of a corporation and an endorser on a large amount of its debts will be relieved as such endorser by the payment of said debts from a fund derived from the sale of certain property of the corporation, will not he sufficient consideration for an oral promise of such party to perform an obligation of the corporation necessary to be performed in order to secure the fund for the purpose of paying such debts. 'Such -promise is collateral, and the benefits arising are too remote to be a valid consideration for the same. (p. 354).\\n3. Indemnity \\u2014 'Service of Required Process on Principal on Bond Held Not Made With \\u201cDue Diligence\\u201d Within the Provisions of the Bond.\\nA provision in a bond given to indemnify a municipal corporation for any damages that may be sustained by reason of the failure of a street railway companay to replace city streets injured by it in removing its tracks therefrom, which requires any suit on such bond to be brought before a definite day therein mentioned, and the principal to be made a party thereto, and served with process before such date, if the same can be done by the exercise of due diligence, is valid and binding upon the parties, and the delivery of such process to the sheriff with directions to serve the same upon the principal within the time \\u2019does not constitute due diligence where such sheriff fails, to make such service, and it is shown that the same could easily have been made within the time provided by the contract, (p. 356).\\n(Wii\\u00fcams, Peesident, absent).\\nError to Circuit Court, Randolph. County.\\nAction by the City of Elkins against the Elkins Electric \\u2022Railway Company and others. Verdict and judgment for plaintiff, and defendants bring -error.\\nReversed and remanded.\\nW. B. <& E. L. Maxwell, and Iloffheimer & Templeman, for plaintiffs in error.\\nSamuel T. Spears, for defendant in error.\", \"word_count\": \"3000\", \"char_count\": \"16817\", \"text\": \"Ritz, Judge:\\nThe defendant, Elkins Electric Railway Company, for some reason not apparent, desiring to abandon a part or the whole of its system and remove its tracks from the streets of the city of Elkins, procured leave from the council of that city to do so upon condition that it execute a bond in the penalty of five thousand dollars, conditioned to replace the street paving and put the same in as good condition as it ivas before the removal of the tracks. One J. C. McSpadden was the president of the railway company and the owner of about ninety-five per cent, of its stock. All of the transactions with the council were conducted by him. The materials thus removed were sold by the railway company, and 'the proceeds of the sale applied to discharge debts for which, McSpadden was surety or endorser. Upon the leave being granted defendant to remove the tracks under the conditions aforesaid McSpadden offered himself as surety upon the bond, but the council refused to accept him as such, and required that the company either deposit five thousand dollars in money or give a bond with a surety company authorized to do business in the state as surety. A bond was thereupon prepared by the attorneys for the city in which the defendant Elkins Electric. Railway Company, a corporation, was made principal, and J. C. Mc-Spadden and a surety company, to be supplied, to be sureties. McSpadden applied to the defendant American Surety Company to become surety on this bond.- It declined to d\\u00f3 so, but agreed to become surety upon a bond in which the Elkins Electric Railway Company and J. C. McSpadden would be principals and it surety. The Elkins.Electric Railway Company and McSpadden thereupon made an application in writing to the surety company requesting it to become surety on such a bond, and both agreeing to indemnify it against any loss which it might sustain by reason of the suretyship. The surety company thereupon prepared* a bond of this kind, and by its proper officer executed the same under its seal as surety, and sent the same to McSpadden to be executed by the railway company and himself as principals. TJpon the receipt of the bond McSpadden went immediately to the city of Elkins and procured a special meeting of the council of that city for the purpose of accepting the bond and closing the transaction. He executed the bond in the name and under the corporate seal of the railway company as a principal, but did not execute it himself as such principal. The bond upon its face specified that the railway company and McSpadden were principals. Executed in this incomplete form McSpadden tendered the bond to the council of the plaintiff which accepted it. The railway company failed to perform the obligation it undertook to put the streets in good condition, and this suit was brought upon the bond to recover the damages sustained by the city by reason of its failure in this regard.\\nTwo defenses are relied upon to defeat this action, the first being that there is no liability upon the bond by reason of the fact that it was never executed by one of the principals, and second, that the bond by its terms provides that any suit brought upon it must be brought before a certain date, and that such suit must be brought against both the principals and the surety, and process served before a- day named in the bond, if such service can be made with due diligence, and that such service was not made upon the railway company prior to the day thus specified, nor was it shown that reasonable diligence had been used to make such service prior to that time, although the suit was brought within the period prescribed.\\nThe plaintiff seeks to avoid the defense based upon the failure of one of the principals to execute the bond, upon the theory that such principal was bound for the obligation undertaken to be performed by the railway company in any event, and that, this being true, under the decision of this court in Star Grocery Company v. Bradford, 70 W. Va. 496, the bond would not he invalid because of his failure to execute it. It is held in that case that the sureties in a bond are not released because of the omission of the principal to execute it if such principal is bound by law or a collateral contract recited in the bond for the performance of the duty thereby required. The principal in the case above cited was bound directly to the obligee in the bond, it being a bond conditioned for his accounting for money or property of the ob-ligee coming into his hands, and of course without any bond being given he would be liable to the owner of the property to account therefor by reason of his contract of agency. It is sought to show that McSpadden was bound to the city to perform the obligation of this bond by reason of the fact that he was practically sole owner of the railway company, and that the money derived from the sale of the rails taken up from the railway track was applied to the discharge of debts for which he was liable as endorser or surety, and further that he had agreed to be personally responsible for the obligation; and further that by reason of his joining in the application to the surety company for the bond, and agreeing together with the railway company to indemnify the surety for any. loss it might sustain he became liable within the meaning of the decision in the case of Grocery Company v. Bradford, supra.\\nDoes the fact that McSpadden would be benefited.by having the debts of the railway company paid for which he was liable as endorser or surety make him in fact the principal in the transaction, or, if not, is this a sufficient consideration for his oral promise to be liable to perform the obligation, conceding that he made such promise? It appears that the railway company was insolvent, and that McSpadden would have been required to pajr the debts which were paid by the sale of the material from the tracks removed had the permission to remove the same not been given, and further that he owned, as before stated, about ninety-five per cent, of the stock of the railway company. This did not create a liability upon his part as an individual to perform the railway company's obligations. It was a corporation formed for the very purpose of constructing and operating a street railway, and the contract was entered into, not with McSpadden, but with the corporate entity. The fact that its principal stockholder and president was the efficient agent on its behalf does not of itself impose any liability upon him to perform the obligation which he undertook on behalf of the company, nor is it a sufficient consideration for a verbal promise made by him to become liable, under our decision in the case of Hurst Hardware Company v. Goodman, 68 W. Va. 462.\\nDoes the fact that McSpadden was bound to indemnify the surety make it unnecessary for him to execute the bond as principal ? In the case of Star Grocery Company v. Bradford, supra, as before stated, the obligation of the principal who failed to sign the bond was direct to the obligee therein, and it was held that such an obligation of the named principal would take the place of his actual execution of the bond. In this case McSpadden is under no obligation to the city of Elkins. There was no' contract between him and the plaintiff which it could enforce. The only obligation which he undertook was to indemnify the surety in the bond in case it was injured or damnified by reason of its suretyship. This obligation could not arise until there was a bond executed upon which an obligation could arise independent of the collateral contract of indemnity. The surety agreed to be bound on a bond with the railway company and Mc-Spadden as principals, and in no other way. If McSpadden was already bound as a principal to the obligee, then it might be said that his execution of the bond would be a purely perfunctory matter, and the liability of the surety would not be affected by his failure to execute it, for the reason that his execution of the bond would not make him under any other or different obligation than he was already undei\\\\ But this cannot be said of his undertaking in the application for the bond to indemnify the surety in case it incurred any liability thereon. This made him in no way liable to the obligee in the bond. His relations to the defendant were exactly the same as they were before he signed that application. Many authorities, as appears from the opinion in the case of Grocery Company v. Bradford, supra, hold that even where the principal in the bond is directly bound to the ob-ligee, the surety will be discharged if the principal- fails to execute the instrument, but the better opinion, as we think, is that laid down in that case, and that is that where by law, or by a collateral contract recited in the bond, the principal is bound to the obligee therein, his failure to execute the bond will not release tire surety. This bond provided on its face that the railway company and McSpadden should both be principals, and it was apparent to the plaintiff when it accepted it that this was the ease. The surety company accepted the liability on these terms. It stated to the plaintiff that it would be bound to perform the obligation specified in the bond provided it was not performed by the railway company^ or by McSpadden, or both. It would not and did not undertake to perform that obligation in case of the failure of the railway company alone, and we are constrained to hold that, by accepting this bond without requiring it to be executed by one of the principals, the surety never became liable thereon: LaBelle Iron Works v. Quarter Savings Bank, 74 W. Va. 569.\\nIt is also contended that a recovery cannot b.e had in this case for the reason that the process commencing the suit was not served upon the railway company within the time limited in the contract. The bond provided that no claim, suit or action, by reason of any default, should be brought against the principal or surety after the 9th of October, 1911, and that service of writ or process commencing any such suit or action be made on or before such date, and that the principal be made a party, to any such suit or action, and be served with process commencing the same, if with reasonable diligence he can be found. This suit was instituted prior to the 9th day of October, 1911, and the process executed upon the surety prior to that date. The railway company was made a party to the suit as required by this condition. It had an attorney-in-fact resident in the city of Elkins upon whom service of process could have been had at any time. The process was placed in the hands of the sheriff of Randolph county, and he was directed by counsel for the city to serve the same before the 9th of October. The party upon whom service was to be made was a well known attorney resident in the city of Elkins, and well known to the sheriff. The sheriff states that when he got the process he called up the office of the attorney and found that he was out. He then called up his residence and found that he was not at home. It seems that he made no other effort to serve the process, although something like two weeks elapsed between that time and the 9th of October. The process was actually served on the 18th day of October. It is shown by the attorney-in-fact that he was not out of the county of Randolph between the time the process was issued and the 9th of October; that he might have been out of the city of Elkins during that time, but that he was at home or in the city of Elkins during most of the intervening time. It seems to be conceded by the plaintiff that such a stipulation as this contained in the contract is a valid and binding one, and the authorities hold that such a limitation, even though it provides a shorter term within which suit must be. brought than the Statute of Limitations, is valid and binding upon the parties. McFarland & Steele v. Ins. Co., 6 W. Va. 437; Riddlesbarger v. Ins. Co., 7 Wall. 386; Express Co. v. Caldwell, 21 Wall. 264; Railway Co. v. Harriman, 227 U. S. 657; Ins. Co. v. Aiken, 82 Va. 424; Ins. Co. v. Wells, 83 Va. 736. The plaintiff, however, says that it did exercise due diligence in this regard, and this question was submitted to the jury by an instruction. Its contention that due diligence was used is based upon the fact that the process was delivered to th\\u00e9 sheriff with directions to serve the same before a certain date. Did this relieve the plaintiff from the obligation to see that the process was actually served before that date? The undertaking is to serve the process before that date, if by due diligence the same can be done. There is not the slightest doubt but that with any sort of diligence the process could have been served. The sheriff does not give any satisfactory excuse for his failure to serve it after making the one effort on the day it was delivered to him and he found the attorney-in-fact away from his residence. The obligation of the city in this case was not to use diligence to deliver the process to an officer for service, but it was to serve the process, and this obligation could only be met by using, every reasonable effort that could be made to secure that end. When one undertakes by contract to do a certain thing he cannot be excused by failure of the agency which he employs to exercise the diligence required. He must go further and employ such agencies as will accomplish the purpose, or else accept the result of their failure. As before stated, there is no excuse offered for the failure to serve this process within the time stipulated in the contract, and the right to recover should have been denied upon this ground.\\nWhat we have said sufficiently indicates the proper procedure to be had upon a retrial of the case, and renders it unnecessary to consider the instructions given and refused upon the former trial. The judgment complained of is reversed, the verdict set aside, and the case remanded for a new trial.\\nReversed and remanded.\"}"
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diff --git a/w_va/8633926.json b/w_va/8633926.json
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+"{\"id\": \"8633926\", \"name\": \"Hudgens v. Southern Express Co.\", \"name_abbreviation\": \"Hudgens v. Southern Express Co.\", \"decision_date\": \"1914-09-22\", \"docket_number\": \"\", \"first_page\": \"760\", \"last_page\": \"763\", \"citations\": \"74 W. Va. 760\", \"volume\": \"74\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T23:57:44.941280+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hudgens v. Southern Express Co.\", \"head_matter\": \"CHARLESTON\\nHudgens v. Southern Express Co.\\nSubmitted September 2, 1914.\\nDecided September 22, 1914.\\n1. Intoxicating Liquors \\u2014 Shipment\\u2014Right to Receive.\\nThe statute, Code 1913, eh. 32A, see. 19, forbids an express company, when it shall have carried a shipment of intoxicating liquors to the point where consigned to the consignee, from delivering the shipment to anyone but the consignee in person, (p. 762).\\n.2. Same \\u2014 Shipment\\u2014Right to Receive \\u2014 Ca/rriers.\\nA. common carrier over whose lines a shipment of intoxicating liquors has not been consigned, but merely in whose care it has been consigned over other lines to a destination point, can not aet .-as the agent of the consignee in receipting for and accepting delivery of the shipment, (p.762).\\nOriginal proceedings in mandamus by Eobert Hudgens against the Southern Express Company.\\nWrit of mandamus denied.\\nAnderson, Strother & Hughes, and Sanders & Crockett, for petitioner.\\nF. 0. Blue and Stokes <& Sale, for respondent.\", \"word_count\": \"1031\", \"char_count\": \"5937\", \"text\": \"Eobinson, Judge:\\nEobert Hudgens seeks mandamus to compel the Southern Express Company to deliver to the Flat Top Express Company a shipment of intoxicating liquors consigned to him from .Pocahontas, Va., over the lines of the Southern Express Company, in care of the Flat Top Express Company, at \\\"Welch, W. Va. The Southern, in obedience to provisions of the new prohibitory laws of this State, as it avers, refuses to deliver the shipment to the Flat Top. Acts 1913, ch. 13; Code 1913, ch. 32A. It maintains that it can not legally deliver the shipment to anyone but Hudgens in person, and to him only after 'he shall have personally signed in receipt for the same the record which the law requires the carrier to keep in this re.gard. On the other hand Hudgens submits that the Flat Top Express Company is a common carrier and may therefore \\u2022act as his agent in taking over and receipting for the shipment. He refuses to receive it unless he may have it through \\u2022the agency of that company.\\nHud'gens lives in a suburb of Welch, about a mile from the office of the Southern Express Company. The office of the 'Southern at Welch is the nearest of its offices to him. It makes no deliveries therefrom to the residences or business places of consignees, as is the custom of express companies in some towns. The Flat Top Express Company is a newly organized corporation which proposes, at least among other things, to take from the office of the Southern Express Company at Welch shipments of liquors made to that office in its care and to deliver them to the persons whose names appear on them as consignees. In this it proposes to do a delivery 'business as contradistinguished from an ordinary carrier business; for, the shipments are not consigned over its lines, but simply in its care. A consignment is not made through it, but only to it over other lines.\\nPlainly in this case it appears that the contract of carriage was with the Southern Express Company only, and was for carriage of liquors from Pocahontas, Va., to the office of the Southern Express Company at Welch, W. Va. This contract \\\"the Southern Express Company fulfilled. It was at an end when the consignment reached Welch. True, there was a direction to the carrier by the consignor to deliver the shipment on the arrival of the same at Welch into the care of the Flat Top Express Company when it should request the \\u00e1same on behalf of Hudgens, the consignee. But if the carrier 'could not obey that direction without violating the laws of the State, it will not be compelled by mandamus to obey.\\nWe are of opinion that the law forbids an express company, when it shall have carried a shipment of intoxicating liquors to the point where consigned to the consignee, from delivering the shipment to anyone but the consignee in person. Such is the plain import of the statute. Code 1913, ch. 32A, sec. 19. It requires every express company, railroad company, or transportation company to keep a record of its deliveries of shipments of liquors. Following this, it provides that \\\"the consignee shall be required to sign his name in person to such record.\\\" It clearly contemplates the presence of the consignee himself, not any agent of his, at the time of the delivery. It means that the delivery shall be made by the carrier to the consignee in person. In all this there was reason. Were it otherwise, shipments of liquor would be so promiscuously and irresponsibly distributed as to tend to a defeat of the purpose .of the law.\\nHudgens maintains that any common carrier may act as agent in the handling of liquors. It is true that section 3 of the act excepts a common carrier from the terms which make it a violation for one to act as the agent of another in the unlawful handling of liquors. Was this meant to except common carriers other than in the ordinary carriage of liquors, duly consigned over their lines? We hold that it was not. The exception can not mean that a common carrier may receipt for a consignment that has not been consigned over its lines, but over other lines, merely in its care at the destination point. That would be inconsistent with the provision of section 19 which we have observed -requires the consignee to receipt in person at the destination point for the consignment. The exception in section 3 can not outdo the meaning and purpose of section 19. The last section too clearly provides that when a consignment has been carried to the point to which it was consigned, the consignee shall personally take it over and leave his personal signature on the book which the law requires the carrier to keep. No person or corporation can sign or receipt for him. The statute requires him to do it in person. Thus the liquors are traced directly to him, and re sponsibility for their presence in the State is not lost through the hands of one or more agents.\\nThe return is all sufficient to bar mandamus, and the writ will be denied.\\nWrit of mandamus denied.\"}"
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diff --git a/w_va/8634414.json b/w_va/8634414.json
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+"{\"id\": \"8634414\", \"name\": \"Hendricks v. Forshey et al.\", \"name_abbreviation\": \"Hendricks v. Forshey\", \"decision_date\": \"1917-11-06\", \"docket_number\": \"\", \"first_page\": \"263\", \"last_page\": \"265\", \"citations\": \"81 W. Va. 263\", \"volume\": \"81\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T18:55:03.027300+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hendricks v. Forshey et al.\", \"head_matter\": \"CHARLESTON.\\nHendricks v. Forshey et al.\\nSubmitted October 30, 1917.\\nDecided November 6, 1917.\\nConspiracy \\u2014 Torts\\u2014Breach of Contract.\\nPersons having similar, individual contracts with a third person, who conspire together to breach them, and do breach them in pursuance of such conspiracy, whether for personal gain or sinister motives, are liable therefor in an action for tort in the nature of a conspiracy.\\nError to Circuit Court, Wood County.\\nTrespass on the case by Henry Hendricks against Thomas S. Forshey .and others. Judgment for plaintiff and defendants bring error.\\nAffirmed.\\nB. E. Bills and G. M. Hanna, for plaintiffs in error.\\n. Wm. Beard, for defendant in error.\", \"word_count\": \"869\", \"char_count\": \"5114\", \"text\": \"Williams, Judge:\\nPlaintiff recovered a judgment against Thomas S. Forshey, Clarence E. Grew ell and M. W. Miller in the circuit court' of Wood county, and they have brought the case here on writ of error. '\\nThe action is trespass on the case and the declaration contains five counts. There was a'demurrer to the declaration and to each count, which demurrer the court overruled as to\\\" the entire declaration and also as to the fourth and fifth counts, and sustained as to the first, second and third counts. Plaintiff, by permission of court, amended his first count, and defendants again demurred to it as amended, which the court overruled. Defendants then pleaded not guilty and issue was joined.\\nIt is insisted the demurrer, to the declaration should have been 'sustained for the alleged reason that the fourth count avers a cause of' action for breach of contract, whereas the' other counts are in tort, and actions' ex contractu and ex delicio can not be joined. While the proposition embodies a well established rule of pleading, counsel have misconceived the true import of the fourth count. It avers' a cause of action in the nature of a conspiracy. It charges substantially that plaintiff had contracts with defendants and with others, severally, to haul their milk from their places of residence in the country to the City of Parkersburg, for a year, at ten cents per gallon, of which defendants had knowledge and that they unlawfully and maliciously confederated and combined and entered into a conspiracy to refuse to per mit plaintiff to haul their milk, and in pursuance thereof breached their several contracts, wherefore plaintiff's business as a hauler of milk has been destroyed and he greatly injured. These averments state a good cause of action on the case in the nature of a conspiracy. Porter v. Mack, 50 W. Va. 581. The contracts were several, not joint, and the wrong alleged is not simply the breach by each one of the defendants of his individual contract, but the breach of all of them in consequence of the unlawful combination and conspiracy. \\\"If one wantonly and maliciously, whether for his own benefit or not, induce a person to violate his contract with a third person to the injury of that third person, it is actionable.\\\" Transportation Co. v. Standard Oil Co., 50 W. Va. 611. Thacker Coal Co. v. Burke, 59 W. Va. 253.\\nThe first count is for slander, but the charge is not supported by the evidence, nor do plaintiff's counsel, in brief, contend that it is. But they do insist the verdict properly stands on the evidence supporting the charge in the fourth 'count.\\nPlaintiff testified that his contracts with the several defendants were made in the spring of 1915 and were for the period of a year, but defendants testified they were for no stated time, and they agree he was to receive ten cents per gallon. Plaintiff was discharged on July 11, 1915, and defendants admit they met at the home of Mr. Butcher on the evening before, and talked over the matter of discharging \\u2022 plaintiff and hauling their milk themselves, each taking it by turns. Defendant Miller says: \\\"We agreed to go trip about among ourselves.\\\" And defendant Forshey admits it was then agreed among them that he should call plaintiff on the 'phone the next morning and notify him not to come for the milk, that they were going to haul it themselves, which he did. He also admits he called up Mr. Thomas Hoffman, who he knew was plaintiff's customer, and solicited him to enter into the arrangement they had made to haul the milk in turns. This evidence supports the charge that defendants were induced to break their contracts by their concerted action and agreement among themselves to haul their own milk. The greater the number who could be induced to enter into that arrangement the easier it would be for each of them, as each would then be required to make fewer trips. Probably no one of defendants, acting independently of the others, would have been willing to break his contract with plaintiff if it necessitated his hauling his own milk, day after day.\\nPlaintiff proved he was earning about $50.00 a month by hauling cream for defendants and others in the neighborhood, independent of what he was hauling for himself, and lost these earnings as a result of the breach of their contracts by defendants. This evidence suports the jury's assessment of $263.83, as plaintiff's damages. The judgment is affirmed.\\nAffirmed.\"}"
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diff --git a/w_va/8634570.json b/w_va/8634570.json
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+"{\"id\": \"8634570\", \"name\": \"National Coal Company v. Overholt et al.\", \"name_abbreviation\": \"National Coal Co. v. Overholt\", \"decision_date\": \"1917-11-27\", \"docket_number\": \"\", \"first_page\": \"427\", \"last_page\": \"438\", \"citations\": \"81 W. Va. 427\", \"volume\": \"81\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T18:55:03.027300+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"National Coal Company v. Overholt et al.\", \"head_matter\": \"CHARLESTON.\\nNational Coal Company v. Overholt et al.\\nSubmitted November 13, 1917.\\nDecided November 27, 1917.\\n1. Miues and Minerals \\u2014 Construction of Lease \\u2014 Sale and Removal.\\nA deed of lease which, grants to the lessee for the term of ten years a particular tract of land and a specific vein of coal known to exist therein, with mining rights, together with plant and all improvements, fixtures, etc., thereon, with covenants of good title and quiet and peaceable possession, but without warranty of acreage or quantity of coal, and wherein and in consideration whereof the lessee covenants and agrees to pay the lessors during the term thereof a specified price per ton for the coal mined, and guarantees a minimum of at least $31,000.00' to be paid the lessors, $5,000.00 down upon execution of the lease, and for the first year $2,500.00, and for the succeeding- nine years a minimum royalty of $3,000.00, said payments to bo made semi-annually computed from the date of the deed of lease, and as therein otherwise specified, constitutes a sale of the coal in place upon condition that it be removed within the term of the lease, and after the expiration thereof, and payments so made in the absence of fraud, mistake, or misrepresentation on the part of the lessors, such lessee is not entitled because of a shortage in the estimated acreage or quantity of coal to an accounting with the lessors and a decree for payments made in excess of the actual amount of coal in the land. (p. .433).\\n2. Limitation of Actions \\u2014 Fraud.\\nKight of action predicated on fraud in such a case for alleged deficiency in acreage of coal would be barred by the statute of ' limitations after five years from the date of the deed, unless the prosecution of such right is in some way not alleged in this ease obstructed by grantor or lessor, (p. 435).\\n3. Same \\u2014 Fraud\\u2014Deficiency in Acreage of Coal.\\nAnd when such right of action for alleged deficiency of coal is predicated on facts which would constitute fraud and deceit on the part of the lessor inducing the lessee to enter into the contract, such action also would be barred after five years from the date of the perpetration of the fraud or mistake, unless the prosecution thereof was in some way obstructed by grantors or \\u2018lessors, (p. 435).\\n4. Mines and Minerals \\u2014 Lease or Sale \\u2014 Option for Extension \\u2014 \\u2022 Exercise.\\nWhen in such deed of lease an option is given to the lessee to extend or renew the lease beyond its term for the purpose only of mining and removing coal from adjoining or other lands over and through the mine and openings on the leased premises, and upon terms specified therein, the lessee must elect to exorcise such right within the term of the lease, and he cannot do so after the term of the original lease has expired, (p. 437).\\nAppeal from Circuit Court, Harrison County.\\nSuit by the National Coal Company against J. W. Overholt and others. Decree for defendants, and plaintiff appeals.\\nDecree affirmed.\\nSwartz & Temploman, and Warder & Robinson, for appellant.\\nSmith & Jackson, for appellees., \\u2022\", \"word_count\": \"4442\", \"char_count\": \"25552\", \"text\": \"Miller, Judge:\\nBy deed of lease dated December 5, 1904, defendants, Overholt and wife, as recited'therein, \\\"in consideration of the payment of the rents or royalties hereinafter provided, and the performance by the Lessee of all the terms, conditions and covenants of this lease by it to be performed\\\", thereby demised and leased unto the plaintiff, National Coal Company, its successors and assigns \\\"all the land, coal, coal mines, mining rights and privileges which were conveyed to the lessors\\\" by deed from John G-. Rogers and wife to said Overholt and wife, dated September 25, 1900, together with all the improvements, plants, fixtures, appliances, tools and implements acquired by said lessors and then on the described premises and used in connection therewith, and all easements, rights of way and appurtenances belonging to said land, and with habendum and conditions one, two, five, eight, and nine thereof, as follows:\\n\\\"TO HAVE AND TO HOLD unto the National Coal Company, its successors and assigns, for the full term of ten (10) years, counting from the fifth day of December, 1904, upon the following terms.and conditions, to-wit:\\n\\\"1. The lessee covenants and agrees to pay to the said lessors, their executors, administrators or assigns, during the continuance of this lease, as a rental for the coal and mining privileges, royalty of ten (10c) for each and every ton of 2240 pounds 'run of mine coal', mined from said leased premises, and guarantee a minimum of at least thirty-one thousand ($31,000) dollars, to be paid as follows, to-wit:\\n\\\"The sum of five thousand ($5000.00) dollars upon the signing and delivery of this lease, and the first year thereafter a minimum royalty in the sum of twenty-five hundred ($2500.00) dollars, and for the succeeding nine years thereafter a minimum royalty of three thousand ($3000.00) dollars; payments of the said yearly minimum royalties to be made semi-annually, to be computed from the date of the execution of this lease. As the future payments thus to be made will amount to twenty-nine thousand five hundred ($29,-500.00) dollars, and as it will require fifteen hundred ($1500.-00) dollars of the hand money payment of five thousand ($5000.00) dollars to make the thirty-one thousand ($31,000.-00) dollars, minimum above mentioned, leaving thirty-five hundred ($3500.00) dollars as an advance payment in the hands of the lessors, it is agreed that if there should be in any of the ensuing years an annual excess royalty beyond the minimum payments hereinbefore provided, such excess shall be deducted from the said sum of thirty-five hundred ($3500.00) dollars from time to time until it shall have been refunded to the said lessee without any interest, however, being allowed to the lessee therefor, and thereafter any excess royalty shall be paid, along with the semi-annual payments of the minimum royalties as hereinbefore provided; but if at the expiration of the term of this lease, the said thirty-five hundred ($3500.00) dollars shall not have been paid by excess royalties, then the balance unpaid shall be considered as forfeited to the lessors.\\n\\\"2. The lessee shall have the right aid privilege to mine, remove and carry any other coal from the lands it now owns or hereafter may acquire, through the lands and openings on' the premises hereby demised, and for this purpose this right shall continue for such' term as the lessee may desire, unless thi\\u00a7 lease is otherwise terminated by the default of the lessee. For said right or privilege the lessee agrees to pay to the said lessors, their executors, administrators or as-> signs, an animal rental of six hundred ($600.00) dollars, to be paid semi-annually from the time the said right or privilege shall have begun. The time when said, right or privilege shall begin shall be counted from the date of the first removal of other coal of the lessee through and across said demised premises, and shall continue for sixty days after written notice is given by the lessee to the lessors of their desire to terminate the use of said right or privilege and thereafter upon payment of whatever may then be due for said right or privilege, the same shall cease and determine.\\n' ' 5. The lessee covenants to mine said coal according to the most improved methods of mining, so that no part of the same may be lost or destroyed by leaving insufficient pillars for protection or support of any that may be unmined at any time, and to observe and perform all the conditions, limitations and covenants with reference to the mining of said coal contained in the deed under which the lessors hold title to the property hereby demised, and to save harmless the lessors from the breach of any such covenants, limitations or conditions.\\n\\\"8. The lessors covenant that they have a good title to and lawful right- to demise the lands, coal and mining rights hereby demised; that the lessees during the continuance of this lease shall peaceably and quietly hold and enjoy the demised property; that they will warrant and forever defend the title of the lessee to the demised premises under this lease against all persons whomsoever, during the continuance thereof and until default shall have been made, if made, as hereinbefore recited.\\n\\\"9. At the expiration of ten years, the term fixed by this lease, the lessee 'Covenants to pay the lessors, their executors, administrators of assigns, the sum of ten (10c) cents per ton for all the merchantable coal yet unmined on the demised property, the same to be estimated at eighty (80) pounds to the cubic foot; payment in cash to be made immediately upon the estimate of tonnage made by the lessors or their agent, and submitted to the lessee.\\\"\\nThe. deed from Rogers and wife to said lessors, referred to ' in said lease, for a description of the property covered there by, and exhibited with the bill, grants unto the parties of the second part \\\"all of the Pittsburg vein of coal upon and underlying the land\\\",\\\"described therein by metes and bounds as \\\"containing fifty-three and 14-100 acres of surface and the same amount of coal, together with the right to excavate, mine and remove all of said vein of coal upon or underlying said parcel of land without being liable for any injury done to the overlying surface or to anything therein or thereon, with the right to erect all necessary ventilating shafts, also the right to remove upon or under said plat of land the coal from and under adjoining, eo-terminous or neighboring lands, except that no opening,- except for ventilating purposes shall be made on all that part of said land lying to the south and east\\\" of a certain line. And for the same consideration certain other lands not involved herein were also conveyed by said deed.\\nBy the original bill, presented in March, 1915, the defendants' demurrer to which was sustained, and by the amended bill tendered and filed in January, 1916, and which by the decree appealed from was finally dismissed upon demurrer, plaintiff after referring to the specific terms, provisions and conditions in said lease and deed above recited, among other things alleged as grounds for the relief prayed for, that defendants at the time of entering into said contract assured and represented to plaintiff that there were in fact 53.14 acres of coal in said boundary of land, and that 345,000 tons of coal could be mined and obtained therefrom, and that thereby plaintiff was induced to believe and did believe that said tract contained such acreage and tonnage of coal, which could be obtained or mined therefrom, and that relying thereon, and on said' representations and assurances, plaintiff was induced to enter into said lease, and that after so doing it proceeded promptly to carry out in good faith its part of said agreement by digging, mining and- removing the coal described therein, and continued therein in a proper and workmanlike manner, and that up to about September, 1914, had paid in royalties to said lessors the sum of $33,000.00, and when on account of the practical exhaustion of the merchantable and obtainable coal, it ceased to mine coal from and under, said land; that the total amount of all the coal so mined by it during the entire period was but 198,323 tons, and that there was left therein but a very small quantity of coal, as plaintiff was advised, not more than 50,000 tons, and sufficient only to furnish props to the surface and to maintain the easement to the adjoining property, and that adding the 50,000 tons so estimated to the 198,323 tons mined and removed from the land there is a deficiency of 81,677 tons of coal which, at the rate per ton royalty reserved, amounts to $8,167.70; that because of the alleged representations, covenants and assurances made to plaintiff by defendants as to acreage and quantity of coal, and which the bill alleges were falsely and fraudulently made, defendants in equity and good conscience were indebted to plaintiff in the said sum of $8,\\u00cd67.70, but which they had not paid and refused to pay, although demanded of them.\\nAnd the bill further alleges that notwithstanding the payment of $33,000.00, and the deficiency in acreage and tonnage of coal in said land, which, though acting with due-diligence, it did not discover until about two years ago, plaintiff had declined to pay defendants the 'sum of $1,500.00, claimed as still due them on December 5, 1914, on account- of royalty, and payment of which had been demanded on or about January 14, 1915, and that by reason of plaintiff's declination to pay same they were threatening to forfeit said lease and plaintiff believed they would attempt to do so and would also attempt to take possession of said property unless enjoined.\\nPlaintiff further alleges that defendants are also under paragraph nine of said lease demanding of it payment of the sum of $9,278.70, for the unmined coal in said property, and unless paid they threaten to forfeit said lease on that ground also, and will do so unless restrained therein.\\nIt is also alleged that plaintiff is willing to pay into court to await final action thereon, the $1,500.00 balance claimed by defendants as royalty, and on like condition to also pay into court the taxes on said property for 1914, when ascertained, both of which sums it proffered in the bill.\\nIt is furthermore alleged that though,the term of ten years given by said lease for mining and removing the coal from the demised premises had expired, plaintiff should in equity have and be decreed the right, within a reasonable time, to remove from the premises such of the'unmined coal therein as can be removed, the royalty upon which had been already paid by it, and also that by virtue of paragraph two of said lease, giving it the right upon the terms, specified to mine and remove coal from other coal lands through the land and openings on said leased premises, and to continue for such term, as it as lessee might desire, unless the lease should be otherwise terminated by its default, defendants should not, as threatened, be permitted to declare a forfeiture of said l\\u00e9ase.\\nUpon these grounds the relief sought is: First, an accounting for royalties overpaid; second, a decree against defendants for said sum of $8,167.70, excess payments of royalty; third, an injunction prohibiting defendants from forfeiting said lease, and from interfering with plaintiff in the possession and enjoyment of said property, and for general' relief.\\nOn the showing thus made is plaintiff entitled to an ae-counting for royalties paid and a decree against defendants for alleged overpayments. The correct answer to this question depends in part, and independently of the statute of' limitations and other grounds of demurrer urged, on the proper construction of the provisions in the lease relating to payments of rents and royalties. They appear to be very strict and rigorous. While the royalty rate is ten cents per ton of 2240 pounds, the lessee guaranteed a minimum of at least $31,000.00 to be paid as stipulated, that is $5,000.00 down upon.the signing and delivery of the lease; and thereafter, for the first year, $2,500.00; and for each of the succeeding nine years a minimum royalty of $3,000.00 per an-num, payments thereof to be made semi-annually, computed, from the date of the lease. It is manifest that the $5,000,00 down payment constituted the price or bonus for the lease, but to go back to the lessee upon the conditions named in the-lease. It is clear from the provision relating to payments that the parties intended to stipulate for a minimum royalty -of $3,000.00 per amram for the entire term, regardless of the quantity of coal mined.\\nIf this is the correct construction of the lease, if indeed it needs construction, the legal effect was a sale of the Pitts-burg coal in place, and plaintiff would not be entitled to an accounting and recovery back, unless upon some theory of deficiency in quantity of coal guaranteed or warranted by the lessors. Certainly there are no words of warranty or .guaranty of quantity in the lease itself; there is warranty of title, and of quiet and peaceable enjoyment of the demised premises during the term of the lease, but not of quantity or tonnage of coal. It is said that the Pittsburg seam of coal in the vicinity of the leased land generally produces ten thousand tons of coal per acre; biit if material we could not, on demurrer, take judicial notice of that fact. When the parties contracted we may assume they both thought there was more than sufficient coal in the land to produce at ten cents per ton the minimum royalty of $31,000.00 guaranteed, but .the deed contains no warranty of quantity on the part of the lessors; nor do we think it can be said there was any implied covenant that the lease contained 310,000 or 345,000 tons of coal as contemplated by the parties. The authorities .generally agree that there is no such implied warranty in a lease of this kind and that in the absence of mistake, fraud .or misrepresentation there is no liability on the part of the lessor for deficiency in quantity or quality of coal. 1 Bar-ringer and Adams, Mines and Mining, 88.\\nThe English and many of the American decisions hold that when in a mining lease the parties contract with reference to a mineral known to exist,' but the quantity is unknown, and incapable of certain ascertainment, and the lessee covenants to mine and bring forth a minimum quantity of the product annually, or at other intervals, and to pay a minimum royalty therefor whether mined or not, the contract amounts to a. sale of the mineral in the land, and that the lessee is bound to pay the minimum price, whether mined or not, and whether it exists or not. Timlin v. Brown, 158 Pa. St. 606; Wharton v. Stoutenburgh, 46 N. J. L. 151; Marquis of Butte v. Thompson, 13 M. & W. 487; Ford v. Cotesworth, L. R. 4 Q. B. 127; Strelley v. Pearson, 15 L. R. Ch. Div. 113; Hill v. Sughrue, 15 M. & W. 252; McDowell v. Hendrix, 67 Ind. 513; Powell v. Burroughs, 54 Pa. Rep. 329; White on Mines and Mining Remedies, section 129. But when the contract relates to mineral supposed but not known to exist, and the covenant of the lessee is to produce and mine a minimum amount and pay a minimum royalty within and at stated intervals his covenant is for diligent prosecution of the work, and to produce the minimum quantity of the minerals if it exists, and not whether it exists or not. McCahan v. Wharton, 121 Pa. St. 424; Bannan v. Graeff, 186 Pa. St. 648; Diamond Iron Mining Co. v. Buckeye Iron Mining Co., 70 Minn. 500; Boyer v. Fulmer, (Pa.) 35 Atl. 235; Muhlenberg v. Henning, 116 Pa. St. 138; Reilly v. Daly, 159 Pa. St. 605; Fessler v. Love, 48 Pa. 407; White on Mines and Mining Remedies, section 130; Gowan v. Christie, 11 L. R. Scotch and Divorce Cases, 273; 27 Cyc. 718; Smith v. Morris, 2 Bro. C. C. 312; Ridgely v. Conewago Iron Co., 53 Fed. Rep. 988; 2 Barringer and Adams, Mines and Mining, 105. In the case at bar, however, the unconditional covenants or guaranty of the lessee was a minimum not of coal alone, but of $31,000.00, in money payable in Installments, as agreed. Certainly the parties were competent to make such a contract, and when so made the courts are powerless to prevent enforcement thereof as made.\\nBut as we have observed, the bill undertakes to allege fraudulent representation or assurances on the part of the lessors as to acreage and tonnage of coal and by which plaintiff was induced to enter into the contract on its part, and if not on other grounds rendering the bill good on demurrer. To this demurrants answer, (1) that the fraud is not well pleaded; (2) but if well pleaded, or if a case of mutual mistake as to acreage or quantity of coal, right of recovery for over payment or damages, is barred by the statute of limitations, and relief would have to be denied on that ground.\\nThere being no warranty of acreage or quantity of coal, but of title and quiet and peaceable possession only, right of action for excess payments of purchase money or royalty could be founded alone on fraud and deceit alleged, and would be barred by limitation, in five years from December 5, 1904, the date of the lease, and the date when the cause of action accrued, and by laches, unless the prosecution of that right was in some way, not alleged in the bill, obstructed by defendants; and if barred we need not go to the question of bad pleading also relied on by demurrants.\\nCounsel for plaintiff say action is not barred because the lack of tonnage was not discovered by proper mining until about 'two years before the date of the suit. But no reason is alleged why deficiency of acreage was or could not have been discovered before that time, and there is no allegation of obstruction by defendants therein. For deficiency of acreage at least the statute began to run from the date of the deed or lease to plaintiff, the date when the cause of action accrued. Burbridge v. Sadler, 46 W. Va. 39; Newberger v. Wells, 51 W. Va. 624, 629.\\nBut as to deficiency in quantity of coal. The alleged representation or assurances of the defendants that there were at least 310,000 or 345,000 tons of coal in the mine, from the very nature of the subject matter of the contract could have been but the expression of an opinion that that quantity of coal could be obtained from the min\\u00e9. No one in advance of the actual mining and removal of coal could do other than estimate the amount. If the allegation of the bill be true, that plaintiff proceeded promptly and pursued proper mining methods, it had the means and opportunity and must have learned early in the progress of the work the rate of production per acre, and it was better'qualified to determine the deficiency in quantity, if any, than defendants were or ever could have been, and as we have noted, there is no allegation of the absence of the Pittsburg vein of coal, the real subject matter of the contract. In argument, and as excuse for having been induced to guarantee the minimum royalty or price of $31,000.00, it was said that the Pittsburg vein of coal in the same vicinity averaged in quantity per acre enough if regular in this land to have produced at least 500,000 tons of coal. If so, how could the alleg\\u00e9d representation or estimate of defendants have defrauded \\u2022 or deceived plaintiff ? How could defendants have been possessed of superior knowl edge to plaintiff1? It was impossible, and from the relative positions of lessor and lessee, and the means of knowledge at hand it is impossible that the one should have been defrauded and deceived by the representation or assurance of the other. From anything that is averred in the bill and on the state of the pleadings, we have to ^assume that the parties were mutually mistaken as to quantity, if not in acreage. In such cases the statute of limitations begin to run from the date of the deed and not from the date of the discovery of the mistake, unless it be alleged and proved that the plaintiff was in some way obstructed therein, and the bill contains no such charge. Neiuberger v. Wells, supra, and cases cited. Our conclusion is that the action is barred and that the demurrer to the bill was properly sustained on this ground also.\\nBut what about the right to extend the lease beyond its term, and to take out the unmined coalf ' The time of .the lease had expired before suit was brought. Plaintiff was only given ten years to mine out the coal. Can we by construction or on principles of equity, and justice extend the term of the lease to enable the lessee to get out the product? By the terms of the lease he was to mine out the coal within the time given by the instrument. We do not see how, or upon what principles, we can extend the term. Though the lease amounted to a sale of the coal in place, it was upon condition that it should be removed within the term of the lease, and that all that should remain afterwards should be paid for at the rate per ton provided for in the lease. Whether under the facts and circumstances disclosed by the bill defendants will be entitled to recover the price of the coal remaining in the land we need not say; that will be a question for determination when presented in a proper forum having jurisdiction to decide it.\\nAnother proposition urged in support of the bill is that plaintiff is entitled to an injunction to restrain defendants from interfering with its possession of the property under paragraph two of the lease for operations under adjoining and other lands. Our conclusion on this proposition is that by analogy to the law of landlord and tenant, respecting options to renew and extend leases, the lessee must have elected within the term of the lease to exercise its rights, and that not having done so, it is too late to make snch election after the lease has expired. Such a rule is founded on principles of right and justice and nothing is alleged showing why this rule should not be applied in this case. 16 R. C. L. p. 892, section 396; 1 Taylor on Landlord and Tenant, (9th ed.) 423; McClintock v. Joyner, 77 Miss. 678, 27 So. 837; Murtland v. English, (Pa.) 112 Am. St. Rep. 747, note 752. Of course if no notice of such election is required by the lease none need be given, but the election must be made within the term, else the right is gone. The bill here does npt allege such election, by plaintiff.\\nThese holdings we believe dispose of all questions presented by the bill, and we are of opinion to .affirm the decree.\\nDecree affirmed.\"}"
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+"{\"id\": \"8634697\", \"name\": \"Great Eastern Refining Corp. v. Herman Shank, etc.\", \"name_abbreviation\": \"Great Eastern Refining Corp. v. Shank\", \"decision_date\": \"1925-05-05\", \"docket_number\": \"No. 5224\", \"first_page\": \"101\", \"last_page\": \"108\", \"citations\": \"99 W. Va. 101\", \"volume\": \"99\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T01:11:30.588985+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Great Eastern Refining Corp. v. Herman Shank, etc.\", \"head_matter\": \"CHARLESTON.\\nGreat Eastern Refining Corp. v. Herman Shank, etc.\\n(No. 5224)\\nSubmitted April 28, 1925.\\nDecided May 5, 1925.\\nJ. W. Terry, and Scott, Graham & Wiswell, for plaintiff in error.\\nDeegan & Hall, for defendant in error.\", \"word_count\": \"2550\", \"char_count\": \"14822\", \"text\": \"Hatcher, Judge:\\nThis is an action in assumpsit brought in the Circuit Court of Cabell County. From a judgment in favor of the defendant for $1,293.07, the case is here on error.\\nThe plaintiff is a manufacturer of gasoline in Kentucky, about twelve miles from Huntington, \\\"West Virginia. The defendant sells gasoline at both Avholesale and retail in Huntington, where he operates several service stations.' As part of his equipment for handling gasoline, he has two storage tanks with an aggregate capacity of about 30,000 gallons. The gasoline shipped to him in tank cars is unloaded' into these storage tanks.\\nThe suit of the plaintiff is for $6,775.65 due for gasoline sold to the defendant. Following notice of set-off and re-coupment, a stipulation was made by the defendant, and read to the jury in which he admitted the correctness of the plaintiff's account, but claimed an off-set against the plaintiff in the sum of $8,794.84. The stipulation further stated that the sole question for the jury to try was whether the defendant was entitled to the amount of the counterclaim. The plaintiff- denied the defendant's claim, and issue was joined thereon.\\nThe evidence of the defendant is that on June 6, 1922, his books indicated that there were 4,283 gallons of gasoline in his tanks. Prom June 6, 1922 until April 30, 1923, he purchased from the plaintiff 861,002 gallons of gasoline. During that same period, he purchased from other concerns 110,912 gallons of gasoline, which were emptied into the same tanks and sold in the same manner as that received from plaintiff. These two amounts, added to the quantity in his tanks on June 6, 1922, made 976,197 gallons, which should have been available to him during that period. According to Ms books, the amount of gasoline' sold from his stations and tank wagons during that period was 922,417 gallons. These figures were derived from slips for gasoline sold, which were returned daily to defendant's bookkeeper by employes in charge of his tank wagons and filling stations. He estimated a loss of 2,300 gallons through evaporation during that period. On April 30, 1923, there were 8,799 gallons in his tanks. The total amount sold and evaporated added to the quantity on hand at the end of the period made 933,516 gallons. This number, deducted from the amount purchased, etc., during the period showed a difference of 42,681 gallons. The defendant charged the entire amount of this shortage to the plaintiff. The purchase price of this alleged shortage represented the amount of the off-set.\\nDuring the period in which he complains of shortage, the defendant had no inspection of the tank cars made before unloading, and kept no record of the number of gallons of gasoline each car actually contained. No one for defendant testified to any actual shortage in the cars except a witness by name of Black, who worked for the defendant until December 24, 1922. Black unloaded all the tank cars that came to the defendant while in his service.' He stated that' when the cars of the plaintiff first commenced to come to the defendant, they were full, but \\\"along towards the last they were not full. ' ' He would not commit himself as to the number, or over how long a period the cars were not full. He said there were \\\"lots of them which lacked one to six inches of being full.\\\" . He never mentioned the shortage to the defendant while in his employment. The defendant testified- to having discovered a total shortage of 505 gallons in fourteen of plaintiff's cars after April 30, 1923, which shortage was reported to and adjusted by the plaintiff.\\nThe evidence of the plaintiff is that the tank cars shipped to the defendant were all stenciled with their capacity in gallons; that it was necessary to take the cap off the dome of a car to unload it, when one could see at a glance the amount of gasoline in the ear; that when the car was filled, the gasoline came up in the dome of the car; that if the car was full of gasoline, this fact was noted in the invoices, and if the gasoline did not reach the dome, the invoice would state how many inches it lacked of reaching the dome, and a deduction in contents noted accordingly; that all cars sent defendants were carefully inspected and correctly invoiced; that in addition to the number of gallons in the car, the invoices stated the temperature of the gasoline at the time of shipment; and that there was always some loss occasioned in shipping, gasoline. No complaint was received by plaintiff from defendant prior to April 30, 1923.\\nThe defendant offered no evidence whatsoever to show that the shortage in gasoline indicated by his books was not due in part or whole to the gasoline purchased from concerns other than the plaintiff, or to the conduct of his own'employes.\\nThe defendant paid plaintiff for gasoline as invoiced up to'April 30, 1923. Plaintiff's suit is. for shipments made after that time. Defendant's counterclaim is for shortage before that twne.\\nThe errors relied upon by the plaintiff, are that the court erred (a) in refusing to allow a witness for plaintiff to testify as to a certain custom of the gasoline trade; (b) in refusing to give plaintiff's instruction number 1; and (c) in refusing to set aside the verdict of the jury.\\nIn oral argument, counsel stated that the plaintiff did not rely, to any great extent, on the first assignment of error. We think the. lower court ruled correctly in regard thereto. The witness did not know that the custom. sought to be proven was a custom generally prevailing at Huntington.\\nPlaintiff's instruction number 1 would have told the jury that'it was the duty of the defendant to examine all cars of gasoline before unloading, and,- in case a shortage of gaso line was found, to notify the plaintiff: of the shortage before the car was unloaded. This would have been a very fair course for the defendant to have pursued, but we are not prepared to say that the law would necessarily cast that duty upon him under all situations. Suppose his tanks were low, and he needed the gasoline which the ear contained for his trade. Are we to say that he should allow his business to suffer and not unload the car while waiting to hear from the plaintiff as to the shortage? We think not. Inspection of the car by a- disinterested party would meet the demands of fair dealing in such case.\\nThe third assignment of error may be considered from two standpoints.\\n1. The burden was on the defendant to prove his counterclaim. His evidence must be weighed exactly as if he were plaintiff in a suit brought against the Great Eastern Refining Corporation to recover the shortage claimed. He must trace all of the shortage directly to plaintiff. He must show a clear right of recovery against the plaintiff.\\nHe bases his claim for. shortage on his books. The inaccuracy of his books is at once apparent upon consideration of the fact that if the consignments of gasoline to the defendant had been short on April 30th the number of gallons which his books showed, his tanks would have been dry at that time, instead of containing 8,799. gallons, as he admitted. Again, in a letter to the plaintiff, he stated that his books showed a shortage on certain cars shipped after April 30th amounting to 5,000 \\u2022 gallons. The actual shortage on these cars was only 505 gallons. The accuracy of defendant's books as to the quantity of gasoline sold, depends entirely on the accuracy of the sale slips turned in to his bookkeeper. He produced no evidence that they were' correct.\\nProm his statement that he had noticed no shortage in gasoline shipped him by concerns other than the plaintiff, he would have the jury infer that none existed in their shipments during the period in question. Because Mr. Black noticed cars from plaintiff not entirely full during the latter part-of. his employment by the defendant, and because fourteen cars from plaintiff after April 30, 1923, showed a slight shortage, he. would have the jury also infer that all of the shortage which he claims was therefore chargeable to the plaintiff.\\nThe employes of plaintiff who loaded and invoiced the cars during this period testified that they were invoiced correctly. On this matter, the evidence preponderates in favor of the plaintiff. To meet the evidence of the men who loaded and invoiced the cars, the defendant offers only inferences, the indefinite evidence of Mr. Black, and book records, the correctness of which depends on the accuracy and honesty of employes who are not put on the witness stand. The alleged shortage could have occurred in several ways not chargeable to the plaintiff. For example, gasoline could have been stolen from the cars while in charge of the railroad company; loss may have occurred through leakage in defendant's storage tanks; loss may have been occasioned by careless handling of the gasoline on defendant's tank wagons and at his filling, stations; gasoline may have been given away or otherwise disposed\\\"of by defendant's employes; or the shortage may be chargeable in whole or in part to consignments from refiners other than the plaintiff. The defendant has not made out a case. The facts proven ,do not warrant the inferences claimed. His evidence does not sustain the verdict. Distilling Co. v. Bauer, 56 W. Va. 249.\\n2. The evidence does not show what employe of the defendant unloaded the cars after Mr. Black quit work for him on December 24, 1922. If there was a shortage of gasoline in plaintiff's cars between- then and April 30, 1923, this employe would have observed it. The knowledge of Mr. Black and the knowledge of this other employe in this respect is attributed to the defendant. Information of the daily balances struck on his books showing a shortage must also be attributed to the defendant. The law imputes notice to him of these alleged shortages. 11 Mechem, Law of Agency, par. 1813; Buckeye, etc. Co. v. Rutherford, 65 W. Va. 395.\\nIn the case of Gamble v. Knott & Hollingsworth, 40 Ga. 199, the plaintiff sold to the defendants certain stock, provisions and agricultural implements on a farm, which he, at the time, leased them. The defendants took possession of the farm, made a crop, and paid part of the rent without any complaint. At- the end of the year, they claimed a deficiency in the quantity of stock and provisions purchased from plaintiff. The court held that the defendants\\n\\\"knew when they took possession of the place, or might have known by the exercise of ordinary diligence, what was on it, and if there was any material deficiency in anything represented to be on the place, then was the time for them to have repudiated the contract if they had desired to do so.\\\"\\nIn the ease of Higbie v. Rogers, a New Jersey case reported in 50 Atl. 366, the purchaser of a drug store tried to offset a portion of the purchase price thereof because of alleged deficiencies in certain articles called for in the bill of sale. The court, in that case, held:\\n\\\"Where the purchaser of a drug store does not call the attention of the seller to a deficiency in the number of bottles sold, within a reasonable time, in order to allow the seller to verify such deficiency, the deficiency cannot be set up as a deduction from the purchase price in a suit to redeem from a purchase-money chattel mortgage.\\\"\\nIn Bogue et al. v. Newcomb et al. 1 New York Supreme Court Reports, 251, the defendants received, without inspection, timber which the plaintiffs had agreed to furnish of a certain size. In that case, the court held:\\n\\\"Defendants could not, after having received the same and sawed it up without measuring, avoid payment on the ground that such timber was not in accordance with the contract.\\\"\\nThe same rule underlies each of these decisions. It is the duty of a purchaser to exercise ordinary care to examine the goods purchased and to notify the consignor within a reasonable time in case of any shortage or deficiency therein. If a buyer, after observing defects or deficiencies in purchases could legaUy delay claim therefor until all evidence thereof is lost except charges on his books, the seller would always be at the mercy of the purchaser. Justice requires that the seller be given an opportunity to investigate charges of shortage, at a time when an investigation would be fruitful. In Bartholomae v. Paull, 18 W. Va. 771, Thompson v. Douglass, 35 W. Va. 337, Ford v. Freidman, 40 W. Va. 177, and Linger v. Wilson, 73 W. Va. 669, this court lias reiterated the principle that a purchaser to whom is shipped more goods than ordered, must, within a reasonable time, return the goods or notify the seller that he will not accept them because of the excess of quantity; otherwise, the law will imply a ratification on his part. If it be the duty of a purchaser to act promptly in case of excess of quantity received, for equal reasons, should he act with promptness when there is a deficiency in the quantity of goods ordered.\\nThe plaintiff had placed its product in defendant's possession, and the invoices therefor in defendant's hands. There was no duplicity on its part. Every invoice stated the number of gallons which plaintiff said the car contained. The defendant then had the invoice, the tank car, and the means and the opportunity of ascertaining whether the invoice was correct. His conduct toward plaintiff should have been open and fair. Honest merchants welcome the opportunity to correct a mistake when an investigation shows that a mistake has been made. They rightly resent a charge of mistake where no opportunity of investigation is possible. This observation is well illustrated in this case. The shortage occurring after April 30th and to which plaintiff's attention was promptly called, was adjusted. As to the shortage between June 2, 1922 and April 30, 1923, a representative of the plaintiff said to the defendant \\\"To hell with your shortage.\\\" No complaint having been made within a reasonable time, the plaintiff assumed, and had the right to assume, that its invoices were correct.\\nFailure of the defendant to have the cars inspected, to have the shortage, if any, recorded at the time, and to have the plaintiff promptly notified, constitute such inattention and neglect of duty as the law will not palliate. In justice to plaintiff's rights, the defendant will not be permitted to delay until all opportunity of investigation is gone, and then maintain at law a claim for shortage.\\nThe judgment of the lower court will therefore be reversed, the verdict of the jury set aside, and the plaintiff awarded a new trial.\\nJudgment reversed; verdict set aside; new trial awarded.\"}"
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+"{\"id\": \"8634823\", \"name\": \"State v. Joe Costa\", \"name_abbreviation\": \"State v. Costa\", \"decision_date\": \"1926-04-20\", \"docket_number\": \"No. 5272\", \"first_page\": \"466\", \"last_page\": \"467\", \"citations\": \"101 W. Va. 466\", \"volume\": \"101\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T00:29:44.349833+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Joe Costa\", \"head_matter\": \"CHARLESTON.\\nState v. Joe Costa\\n(No. 5272)\\nSubmitted April 13, 1926.\\nDecided April 20, 1926.\\nShaw & Shaw, for plaintiff in error.\\nHoward B. Lee, Attorney General, and J. Luther Wolfe, Assistant Attorney General for the State.\", \"word_count\": \"366\", \"char_count\": \"2220\", \"text\": \"Lite, Pbesidbnt:\\nTbe defendant was tried and convicted in the criminal court of Marion county on an indictment charging him with the unlawful transportation of intoxicating liquors in violation of Section 31, Chapter 32-A, Code. No proof being offered by the defendant, the case was submitted to the jury on the evidence of- the 4 State.\\nOf numerous errors assigned for reversal, it is asserted that the trial court improperly permitted the assistant prosecuting attorney in violation of Section 19, Chapter 152, Code, to comment upon the failure of the defendant to testify in his own 'behalf. The assistant prosecuting attorney, in his argument of the case to the jury, referring to certain incriminating circumstances against the defendant, said: \\\"He (the accused) does not explain by his own testimony, or by any other means, these facts and circumstances\\\". Prompt objection by counsel for the defendant to this statement was overruled by the trial court.\\nThe argument complained of clearly violates the right of the defendant guaranteed to him under the statute and Section 5 of Article III. of the Constitution; and therefore constitutes reversible error. Discussing the object of this legis-Tative enactment, in State v. Taylor, 57 W. Va. 228, Judge POEEENBARGER Said:\\n\\\" It is designed to enforce the common law maxim, now embodied in section 5 of article 3 of the Constitution, called the Bill of Rights, which protects the citizen from being required, in any criminal case, to be a witness against himself. One of the most excellent principles of the common law was that the State took upon itself the burden of proving the guilt of the prisoner. * # * So the law, having brought the prisoner into, court against his will, \\u00e9id not permit his silence to be treated or used as evidence against him.\\\"\\nThe other assignments of error are without merit.\\nWe reverse the judment of the trial court, set aside the verdict of the jury, and grant the defendant a new trial.\\nReversed and remanded.\"}"
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diff --git a/w_va/8634868.json b/w_va/8634868.json
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index 0000000000000000000000000000000000000000..b3a11a1a407f6b72498d0209ac2c42cb37491069
--- /dev/null
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+"{\"id\": \"8634868\", \"name\": \"L. W. Brecht et al. v. The Bankers Security Company\", \"name_abbreviation\": \"Brecht v. Bankers Security Co.\", \"decision_date\": \"1926-04-27\", \"docket_number\": \"No. 5516\", \"first_page\": \"533\", \"last_page\": \"534\", \"citations\": \"101 W. Va. 533\", \"volume\": \"101\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T00:29:44.349833+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"L. W. Brecht et al. v. The Bankers Security Company\", \"head_matter\": \"CHARLESTON.\\nL. W. Brecht et al. v. The Bankers Security Company\\n(No. 5516)\\nSubmitted April 20, 1926.\\nDecided April 27, 1926.\\nJ. Raymond Gordon, for plaintiff in error.\\nWhitt <& Life, for defendants in error.\", \"word_count\": \"428\", \"char_count\": \"2491\", \"text\": \"Litz, President :\\nThe defendant, Bankers Security Company, a corporation, prosecutes error to judgment of the circuit court upon a verdict of the jury against it in favor of plaintiffs, L. \\\"W. Brecht and Myrtle Brecht, his wife, for $135.00, in an action tried on appeal from a justice.\\nThe plaintiffs Raving purchased from A. E. Fisher certain household furniture for $500.00, obtained from the defendant a loan to pay the purchase price. By deed dated July 29, 1924, the plaintiffs conveyed the furniture to W. L. Poling, Trustee, to secure the repayment of the loan at the rate of $45.00 per month. At the request of plaintiffs the defendant applied all of the loan, except about $150.00, to the discharge of certain claims against the furniture and to the payment of the purchase price to Fisher. Later, when a creditor of Fisher attached the property, the defendant was forbidden by -the plaintiffs (as they claim) to pay Fisher any more of the purchase price. The defendant having subsequently paid to Fisher the balance of the loan, this action was instituted to recover the amount so paid because, as it seems, the furniture was sold in the attachment proceeding as the property of Fisher.\\nAssuming that the defendant without ' authority, paid Fisher out of the loan an amount equal to or greater than the verdict, plaintiffs were not entitled to recover for the reason that more than this sum was at the time of the trial due to defendant by the plaintiffs for monthly payments in arrears on the loan.\\nThe judgment of the justice recites that the case was heard upon the complaint of plaintiffs and the answer of the defendant, and the order of the circuit court states that the jury was sworn to try the issue joined between the parties; but it nowhere appears what the issue between the parties, or the answer of the defendant, was.\\nAlthough the amount due the defendant by the plaintiffs exceeds that claimed by the plaintiffs, the defendant would not be entitled to recover the difference without filing a claim or set off, Longacre Colliery Company v. Creel, 57 W. Va. 347.\\nThe judgment of the circuit court will be reversed, the verdict of the jury set aside, and a new trial awarded defendant, in order that the case may be properly developed.\\nReversed and remanded.\"}"
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diff --git a/w_va/8634947.json b/w_va/8634947.json
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+"{\"id\": \"8634947\", \"name\": \"Edward G. Kimmell v. Eastern Coal & Mining Co. et al.\", \"name_abbreviation\": \"Kimmell v. Eastern Coal & Mining Co.\", \"decision_date\": \"1925-09-15\", \"docket_number\": \"C. C. 367\", \"first_page\": \"489\", \"last_page\": \"494\", \"citations\": \"99 W. Va. 489\", \"volume\": \"99\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T01:11:30.588985+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Edward G. Kimmell v. Eastern Coal & Mining Co. et al.\", \"head_matter\": \"CHARLESTON.\\nEdward G. Kimmell v. Eastern Coal & Mining Co. et al.\\n(C. C. 367.)\\nSubmitted September 8, 1925.\\nDecided September 15, 1925.\\nWilliam MacDonald, for plaintiff.\\nArthur Arnold and W. Elliott Nefflen, for defendants, Eastern Coal & Mining Company and James E. Cross.\", \"word_count\": \"1750\", \"char_count\": \"10373\", \"text\": \"Hatcher, Judge:\\nThis is a suit in chancery instituted in the Circuit Court of Mineral County. The original bill in this cause was certified to this court in 1924, and by us held insufficient on demurrer for the reason that the charges of fraud therein were too general. See Kimmell v. Coal & Mining Co., 97 W. Va. 154. Upon the return of the cause to the Circuit Court, an amended and supplemental bill was filed. A demurrer thereto having been sustained, a second amended and supplemental bill was then exhibited, which the lower court held to be sufficient; but upon the joint request of the parties, again certified the cause here.\\nThe original and first amended bills are made parts of the second amended bill, so it is now necessary to consider together the material allegations of all three pleadings. The careful digest of the original bill made by Judge Lively, when the case was here before, is as follows:\\n\\\"(1) That defendant is a foreign corporation with authorized capital stock of $1,000,000.00, of which from $250,000.00 to $300,000.00 has been sold, including $2,500.00 to plaintiff, on which it guaranteed 8% dividends, with the agreement that it would furnish its stockholders coal at cost of production plus thirty cents per ton, and would pay no salaries to its managing officers until all dividends were paid; (2) that plaintiff purchased 2,500 shares of stock of the par value of $2,500.00 and in payment therefor deeded to the corporation two valuable lots in the City of Keyser worth $2,500.00, being induced to do so by the express statements, representations and agreements as to the then value of the stock and the assurance that it would soon become very valuable; and with the understanding that the lots would be utilized for coal tipple, coal yard and offices in order to supply coal to its stockholders; (3) that the stock at that time did not have-any real value, a fact which the corporation knew; and in selling the stock to plaintiff withheld from him the true facts as to its financial ability, the amount of its property, the kind and character of its investments, with intent to deceive, but assured plaintiff that it was financially able to carry out its agreements, that its income was increasing from coal sales, and that defendant knew, or had reason to know, that its financial ability was such that it could not carry out its promises; and, relying upon said promises, representations and guaranties, the stock was purchased by plaintiff, and because of defendant's failure to make good its promises, guaranties and representations, the shares of stock are worthless and the consideration for the lots deeded has failed; (4) that as soon as plaintiff learned the real facts of the fraud perpetrated upon him he demanded a rescission of the contract and was refused; and from all the facts he has learned about the organization of defendant, the extent, character and value of its investments, its failure to sell all its stock and its failure to carry out its guaranties and agreements, he avers that the exchange of stock for his lots of land was in bad faith on the part of defendant and was for the purpose of defrauding him; (5) that he has received only $38.90 in dividends covering a period from October 10, 1921, to March, 1922, which is not what was promised in the way of dividends, and tenders the- dividends so paid, together with the stock, back to defendant; that the corporation has had no meeting of its stockholders since its organization and has given to its stockholders no statements or information relating to its standing and condition as required by law; (6) that defendant did not have coal mines sufficient to carry out its agreement to furnish coal to its stockholders, and was never able financially to carry out its agreements and representations, and its failure to do so is a fraud upon plaintiff; that defendant's president stated under oath to the Auditor of the State, in October, 1921, that all of its stock was sold to the Liberty Investment Company, of Cumberland, Maryland, which statement plaintiff says was not true, as the defendant sold stock direct to individuals and received payment tberefor; that before plaintiff discovered the falsity of defendant's representations he inquired of defendant why it was paying no dividends and why it did not erect its tipples and coal yard on plaintiff's lots, and why it was not carrying out its agreements, and was assured that the corporation was doing a large business, needed its moneys in the conduct of its business elsewhere, and that the value of its stock was increasing, which statements were false and made to prevent plaintiff from making investigations, and from proceeding to recover his lots. An averment is contained in the bill to the effect that defendant has executed a deed of trust on the lots to secure payment of a note to James E. Cross, which deed was made for the purpose of hindering and embarrassing plaintiff in the assertion of his rights, in which purpose all of the parties to the trust deed participated.\\nThe prayer is for a rescission of the contract because of the alleged fraud, cancellation of the trust cleed, and reconvejmnce of the title of the lots to plaintiff, and for general relief.\\\"\\nThe first amended bill contains much general averment of fraud, as well as charges of fraudulent representations which do not appear to have been made directly to the plaintiff. It contains, however, material supplementary allegations as follows :\\nThat the sale of the lots to the defendant corporation was made at the solicitation, negotiation, and upon the representations and statements of fact made to plaintiff by Howard Cross, who was at the time president of the company;\\nThat Howard Cross told the plaintiff during these negotiations (a) that the defendant company was then the owner of large and valuable areas of coal; (b) that it had coal mines in operation of capacity sufficient to supply all the stockholders, according to their guarantee, and had coal yards in various towns and cities throughout the country; (c) that the company had purchased and was then the owner in fee of a tract of 8,000 acres of coal situate just across the river from Hinton, West Virginia, extending as far as G-lade Creek in Raleigh County; (d) that, according to survey, tbe tract contained 90,000,000 tons of coal, and that a railroad was tben being constructed up Glade Creek, which would serve the company's mines; (e) that the defendant company was also the owner of coal lands free from debt in the county of Preston, which were being operated; (f) that the company guaranteed to plaintiff an annual dividend of 8% on his shares of stock; (g) that the company guaranteed the sale and delivery of coal to plaintiff from its mines at cost plus 30e per ton;\\nThat the plaintiff had no knowledge of th\\u00e9 company's affairs and that the statements so made by the president of the company were relied on by, and induced plaintiff to accept the certificate of stock in the company in exchange for his two lots;\\nThat all such representations of fact were false, were known, or should have been known, by defendant's president to be false, and that none of the guarantees of the company have been by it performed.\\nThe first amended bill also contains charges \\u00f3f fraudulent management against the officers of the company. As these charges relate to acts subsequent to the purchase of the stock by the plaintiff, we do not deem it necessary to detail them here.\\nThe second amended bill contains further charges of official mismanagement,' together with the general charge that, \\\"although frequently requested so to do, ' ' the company has never delivered to. its stockholders coal at cost plus 30c per ton.\\nThe specific averments in the second amended bill add but little, if any, weight to the plaintiff's plea. It is different, however, with certain facts alleged in the first amended bill, which are incorporated into the second amended bill. The representations alleged in the first amended bill, as detailed above, are clearly and affirmatively stated and contain all the essential elements of actionable fraud, in that, as pleaded, they were false, were of existing and essential matter, and induced th& making of the contract. These allegations, therefore, comply with the requirements of point 3 of the syllabus in Kimmell v. Coal & Mining Co., supra, as well as with'point 1 of Houston v. McNeer, 40 W. Va. 365, a case relied upon strongly by counsel for tbe demurrant.\\nCounsel also urge bere certain objections made before tbe Circuit Court to tbe filing of tbe first and second amended bills. These objections are based in part on failure of notice. So far as tbe objections do not lie to tbe sufficiency of tbe pleading, we can not now consider them, because tbe statute under wbieb tbis case was certified to us permits decision only upon tbe questions as to tbe sufficiency of the 'pleading. So far as the objections challenge tbe merits of the plea, our answer to them is tbe same as that to tbe demurrer.\\nDemurrants further contend that no facts are alleged showing that defendant, James E. Cross, is not an innocent third party, and a bona fide creditor of tbe defendant company. We bold that tbe allegation in tbe original bill relating to James E. Cross, when considered with tbe material allegations of tbe first amended bill, is sufficient to warrant, if true, a cancellation of tbe trust deed in bis favor.\\nCounsel also enumerate certain general averments of fraud made by plaintiff as to transactions subsequent to tbe purchase of plaintiff's stock, which they contend are not sufficient to sustain a charge of fraud. Admitting their' contention is well founded as to these general averments, nevertheless, we find sufficient misrepresentation properly pleaded to sustain tbe plea as a whole, and we treat as surplusage those allegations which are too general to be sufficient.\\nTbe demurrer to tbe second amended and supplementary bill was properly overruled, and tbe bolding of tbe Circuit Court thereon is therefore affirmed.\\nAffirmed.\"}"
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diff --git a/w_va/8635486.json b/w_va/8635486.json
new file mode 100644
index 0000000000000000000000000000000000000000..375d4ba919e10febdb41ba2ca08267b7370f24db
--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"8635486\", \"name\": \"State ex rel. W. M. Stone v. W. H. Sears, Justice et al.\", \"name_abbreviation\": \"State ex rel. Stone v. Sears\", \"decision_date\": \"1931-09-15\", \"docket_number\": \"No. 7161\", \"first_page\": \"42\", \"last_page\": \"43\", \"citations\": \"111 W. Va. 42\", \"volume\": \"111\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T01:11:13.421515+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State ex rel. W. M. Stone v. W. H. Sears, Justice et al.\", \"head_matter\": \"State ex rel. W. M. Stone v. W. H. Sears, Justice et al.\\n(No. 7161)\\nSubmitted September 8, 1931.\\nDecided September 15, 1931.\\nThos. P. Ryan, for petitioner.\", \"word_count\": \"473\", \"char_count\": \"2620\", \"text\": \"Litz, President:\\nRelator, W. M. Stone, seeks by writ of prohibition to prohibit respondents, W. H. Sears, a justice of the peace of Geary District, Roane county, and R. C. Cook, from enforcing a default judgment of $233.63 and costs rendered by said justice against him and Fred Stone in favor of said Cook, May 20, 1931.\\nThe process in the action before the justice was served upon the wives of the defendants therein. The returns of service recited, as justification for substituted service, that process was executed \\\"by delivering a true copy thereof to Mrs. W. M. Stone at home,\\\" and \\\"by delivering a true copy thereof to Mrs. Fred Stone at home. ' ' The statute authorizing substituted service, chapter 50, article 3, section 8, Code 1931, provides that if the defendant be not found the process \\\"may be served at his (or her) usual place of abode, by delivering a copy thereof, and giving information of its purport, to his wife (or her husband) or to any person found there who is a member of his (or her) family and above the age of sixteen years. ' ' It will be observed that the return as to each defendant fails to show, among other requirements, (1) that the defendant could not be found; (2) that the process was delivered to the wife at his usual place of abode; and (3) that she was given information of its purport.\\n\\\"In order that substituted service shall have the effect of actual service upon the party in person, the return must show that all essential provisions of the statute authorizing such substituted service have been strictly complied with.\\\" Jones v Crim, 66 W. Va. 301, 66 S. E. 367; Staunton Perpetual B. & L. Co. v. Haden, 92 (Va.) 201, 206, 23 S. E. 285; Midkiff v. Lusher, 27 W. Va. 439; King v. Davis, (Va.) 137 Fed. 198, 206. \\\"The return of service by leaving a copy of the notice or process should show that information was given by the officer to the person with whom it was left, of the purport of such notice or process.\\\" Vandiver v. Roberts, 4 W. Va. 493; Midkiff v. Lusher, cited; Douglass v. Kanawha, etc., R. Co., 44 W. Va. 267, 28 S. E. 705; Capehart v. Cunningham, 12 W. Va. 750. \\\"Service of a summons on a defendant by delivering a copy thereof to his wife is not sufficient where the officer's return fails to show that he gave her information of its purport, and a judgment by default on such service is void.\\\" Park Land, etc., Co. v. Land, 106 (Va.) 304.\\nThe peremptory writ is, therefore, awarded.\\nWrit awarded.\"}"
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diff --git a/w_va/8635605.json b/w_va/8635605.json
new file mode 100644
index 0000000000000000000000000000000000000000..72132c01571f5be3a5068b6f917d43734468743c
--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"8635605\", \"name\": \"State ex rel. Fred Saunders v. Luke Boyles, Justice, et al.\", \"name_abbreviation\": \"State ex rel. Saunders v. Boyles\", \"decision_date\": \"1932-04-12\", \"docket_number\": \"No. 7281\", \"first_page\": \"125\", \"last_page\": \"126\", \"citations\": \"112 W. Va. 125\", \"volume\": \"112\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T01:10:56.967875+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State ex rel. Fred Saunders v. Luke Boyles, Justice, et al.\", \"head_matter\": \"State ex rel. Fred Saunders v. Luke Boyles, Justice, et al.\\n(No. 7281)\\nSubmitted March 31, 1932.\\nDecided April 12, 1932.\\nWm. T. George, for petitioner.\\nHoward B. Lee, Attorney General, B. Dennis Steed and W. Elliott Nefflen, Assistant Attorneys General, for respondents.\", \"word_count\": \"275\", \"char_count\": \"1704\", \"text\": \"Litz, Judge:\\nPetitioner, Fred Saunders, seeks, by a writ of prohibition, to prohibit respondents, Luke Boyles, a justice of the peace, and Forest D. Poling, prosecuting attorney, of Barbour County, and C. P. Wilson, a member of the department of public safety, from further prosecuting petitioner upon the the charge of driving a motor truck, without a chauffeur's license, over an unfinished state road, not open to public travel, for the removal of material in the process of grading the right of way.\\nChapter 17, article 6, section 26, Code 1931, prohibits the operation of a motor vehicle upon a highway by any person without a chauffeur's license. The state contends that an unimproved right of way for a public road not open to traffic is a road within the meaning of the statute. We cannot concur in this view. Chapter 17, article 1, section 3, Code 1931, provides that tbe term \\\"road\\\" or \\\"public road\\\" shall be deemed to include the right of way, roadbed and all necessary culverts, sluices, drains, ditches, waterways, embankments, slopes, retaining walls, bridges, tunnels and viaducts necessary for the maintenance of travel, dispatching of freight and communication between individuals and communities. As the requirement of a driver's license to operate a motor vehicle is intended primarily to regulate traffic, it necessarily applied only to roads open to public travel.\\nThe writ is, therefore, granted.\\nWrit granted.\"}"
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diff --git a/w_va/8635761.json b/w_va/8635761.json
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index 0000000000000000000000000000000000000000..5b2c4467855d5fb94d3885629d019f3b055217fe
--- /dev/null
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+"{\"id\": \"8635761\", \"name\": \"State ex rel. City of Benwood v. Benwood & McMechen Water Company\", \"name_abbreviation\": \"State ex rel. City of Benwood v. Benwood & McMechen Water Co.\", \"decision_date\": \"1923-10-16\", \"docket_number\": \"\", \"first_page\": \"724\", \"last_page\": \"733\", \"citations\": \"94 W. Va. 724\", \"volume\": \"94\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T22:59:50.953894+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State ex rel. City of Benwood v. Benwood & McMechen Water Company.\", \"head_matter\": \"CHARLESTON.\\nState ex rel. City of Benwood v. Benwood & McMechen Water Company.\\nSubmitted September 18, 1923.\\nDecided October 16, 1923.\\n1. Municipal Cobpobations- \\u2014 May Regulate Use of Streets by Public Service Corporation.\\n.A municipal -corporation is vested' with, authority under its .police power reasonably 'to reg-ulate -the use of its streets and other ways- by public service corporations acting und-er -franchise from-the municipality, (p. 731).\\n2. Mandamus \\u2014 Will Not be Superseded hy Another Remedy, Unless Specific and Appropriate to Circumstances of Particular Case.\\nRelief by \\u2022mandamus will not be superseded by another remedy unless such remedy be specific and appropriate to the circumstances of 'the particular case, compelling performance of the duty in question, (p. 730).\\n3. Courts \\u2014 Mandamus\\u2014Supreme Court of Appeals has Original Jurisdiction, Where Existing at Common Law; Jurisdiction by Mandamus Exists at Common Law to Compel Municipal Corporation to Reasonably Regulate XJse of Streets by Public . Service Corporation.\\nThe iSupreme Court of Appeals has original jurisdiction in all cases of mandamus where jurisdiction ,by mandamus exists at common law; and such jurisdiction exists at common law \\u25a0for the enforcement of authority by a municipal corporation reasonably to regulate the use of its streets by a public service corporation acting under franchise from the municipality. Op. 729).\\nMandamus by the State, on the relation of the City of Benwood, to require Benwood & McMechen Water Company to remove and replace a water main.\\nPeremptory writ awarded.\\nA. W. Laas, for relator.\\nG. R. C. Wiles, for respondent.\", \"word_count\": \"3222\", \"char_count\": \"19308\", \"text\": \"Litz, Judge:\\nThe City of Benwood, a municipal corporation, seeks by petition to this Court a peremptory writ of mandamus, commanding Benwood & McMechen Water Company, a corporation, to remove its water main lying on, in and beneath Eighth Street of said city, and relay the same under and beneath the sidewalk bordering this street on the north.\\nThe petition states that the petitioner is a municipal corporation within the county of Marshall, State of West Virginia, and as such has power and authority granted to it, and reposing in its comition council, by its charter and by general law, to lay out and cause to be opened any streets, walks, alleys and public grounds, or to extend.'or widen the same; and to grade any street, alley, walk or public ground which is, or shall be established within the said city; to pave, or otherwise' improve the same; to cause them to be kept open and in good repair, and generally to ordain and enforce such regulations respecting the same, or any of them, as shall be proper for the health, interest and convenience of its inhabitants; that pursuant to franchise for thirty years granted by the common council of petitioner to respondent's predecessor in the year 1897, a system of pipe lines has been installed, and continuously maintained and operated in, on and beneath the streets and alleys of said city for the purpose of supplying water to the city, the inhabitants thereof, others doing business therein, and consumers in territory beyond; that the main of respondent's water system lies beneath Eighth Street, a very busy thoroughfare, \\\"from the alley between Main Street and Water Street, running in an eastern direction to Bessemer Street\\\"; that petitioner is about to improve, and relay Eighth Street with an eight-inch concrete surface, so that in repairing breaks or leaks frequently occurring in said main on that street, it would be necessary to break and remove-the concrete surface and dig up the street; thereby causing interference with traffic and entailing serious difficulty in replacing the concrete as originally constructed. The petition also avers respondent's refusal to comply with an ordinance directing removal and relocation of ,said main.\\nRespondent moved to quash the alternative writ awarded, and filed its return thereto, denying that the water main on Eighth Street is liable frequently to break or leak, and further denying that it would be difficult to restore the concrete surface of the street in event of removal for the purpose of repairing breaks or leaks in said main; or that traffic upon said street would be affected by the disturbed condition of the street incident to such work.\\nThe return further states that respondent by its said water plant and system furnishes water to the city and inhabitants of McMechen as well as to the city and inhabitants of Ben-wood; that its water service lines and fire hydrants were laid and installed in, along and under the streets and alleys and public ways of the city of Benwood in strict accordance with the terms and conditions of said franchise and under the supervision and direction of the municipal' authorities of the city; thht the water main on Eighth Street sought to be removed and relocated is of heavy cast iron pipe eight and ten inches in diameter, laid in first class, workmanlike manner five feet beneath the surface of the street; that this is the main line used by respondent for conveying water from its pumping station to its reservoir in South Benwood and to the adjoining town of MeMechen; that the removal thereof would involve' the expenditure of a large sum of money for labor and materials, interrupting water service to the cities of Benwood and MeMechen for many days, and leaving both of said cities without fire protection or water service during the time required for the removal and relocation; that it has no authority under its franchise to invade the space now occupied by the sidewalk on the north side of Eighth Street for the \\u2022purpose of relocating said water line; that under, the terms of its franchise respondent is required to maintain a pressure of eighty-five pounds per square inch on said line and when the water is being pumped to the reservoir in South Ben-wood,' this pressure rises to one hundred and ten pounds; that if required to remove and relocate said line respondent would also become involved in claims for damages by abutting property owners on the north'side of Eighth Street; and in event of a break in' said line at its new location, on account of the heavy pressure carried, much property loss and damage likely would ensue to adjoining property owners.\\nThe affidavit of J. W. Landers, member of the common council of the City of Benwood, filed in support of the petition, states: that the portion of Eighth Street occupied by respondent's main is approximately five hundred feet in length'with an average width of about forty feet from curb to curb; that the main on Eighth Street is located four feet South of the north curb line from the alley between Main and Water Streets to the alley between Main and MeMechen Streets, and thence-to Bessemer Street, it lies diagonally across Eighth Street; that Eighth Street in its' proposed improved condition will be narrowed by adding two feet to the' width'of the sidewalk on the north; that the pipes composing this -main are practically the same as those originally laid twenty-five years ago, and that within the last -year two serious breaks have occurred in said main on Eighth Street, in each instance necessitating the tearing up of the street for some distance and seriously impairing its use by the public for a considerable time.\\nRespondent files the affidavit of its superintendent, Michael Dolan, stating: that respondent's water main extends over Eighth Street for about six hundred feet, four hundred and fifty feet of the way being laid with heavy eight-inch cast iron pipe connected by leaded joints, and the remaining distance with heavy ten-inch cast iron pipe, similarly connected; that this main, located about five feet from the north curb line of the street at a depth of five feet below the surface, constitutes a part of the main lead line of 'respondent's water plant and system, through which water is pumped to the reservoir in Benwood and furnished to the adjoining town of McM\\u00e9chen; that said water system has been in operation for about twenty-six years, and that within the last past ten years, during which time he has been in respondent's employ, only two breaks have occurred in the main on Eighth Street, one about six years, and the other four years ago, each of which was repaired! in about twenty-four hours without interference with traffic; that there is no serious practical difficulty in cutting 'through the paving proposed to be laid on Eighth Street of eight-inch concrete and replacing the same as originally laid; that the relaying of said main under the sidewalk on the north side of Eighth Street would require the tearing up and replacing of the sidewalk constructed of brick and concrete; that the north side of Eighth Street is built up of residences and business houses and in many places the proposed location of the water line would be within four feet of the front of the houses along that side of the street, so that the construction of the water line under the sidewalk would interfere with the ingress and egress to and from such buildings, and in case of a break in the line at the proposed location great danger and inconvenience would result to adjoining property owners; that there is no sidewalk or passageway for pedestrians on the south side of Eighth Street and if the water line should be removed to the north side and placed under the sidewalk, while such work was in progress, all pedestrians on Eighth Street would be required to use the open street with constant danger from automobiles and other vehicles; that greater public inconvenience would be sustained in the event of a break in the main, if placed under the sidewalk, than would occur from permitting it'to remain in its present location; that to remove and relay it as proposed would require at least two weeks' work, with an expenditure of about $5,500.00, resulting in reduction of revenues to respondent of from $1,000.00 to $2,000.00 and in cutting off water from the city of McMechen, which has a population of about five thousand; and also prevent the transportation of water to the reservoir in Benwood, leaving both cities without fire protection.\\nThe grounds set forth in respondent's motion.to quash are;\\n(a) That this Court does not have original jurisdiction in cases of mandamus instituted pursuant to the provisions of Section 28-b (1) of Chapter 47 of the Code of West Virginia (Acts 1905, Chap. 49).\\n(b) That the facts alleged in said alternative writ are insufficient to constitute a cause of action against the respondent.\\n(c) That the facts alleged in said writ do not show the existence of any duty or obligation on the part of respondent, embodied in the ordinance, voluntarily assumed or imposed by law, to do or perform many of the matters and things sought to be compelled as against the respondent by the command of said writ.\\n(d) The averments of said writ do not show any clear legal obligation on the part of respondent to do and perform the acts sought to be compelled by said writ.\\n(e) That the petitioner has an adequate legal remedy in another forum under the express terms of the ordinance for redress against respondent in the event it shall sustain any injury or damage on account of the installation, maintenance and operation of respondent's water lines, or otherwise.\\nWe will consider them in the following order:\\n(1) Section 28-b (1) of Chapter 47 of the Code provides:\\n\\\"That in all cases where any individual, association of individuals or corporation has obtained or shall here after obtain any right, license, privilege or franchise to operate a street car line, lines or cars in whole or in part upon the public roads of any county, or the streets of any city, town or village, or to furnish to such county, city, town or village, or the inhabitants thereof water or gas or- electricity, or to construct or operate a telephone system in any such county J city, town or village, and the terms, conditions or manner of exercising such right, license, privilege, or franchise are embodied in the order of the county court of said county, or order, resolution or ordinance of said city, town or village conferring the same, or are otherwise, either voluntarily or by law, imposed upon, or assumed by said individual, association of individuals or corporation, that then and in each of such cases the circuit court of the county in which said city, town or village is sitiuated shall have power by mandamus to compel such individual, association of individuals or corporation, and their assigns, to use and exercise such right, privilege, license or franchise in accordance with the terms and conditions and in the manner so prescribed in said resolution, order or ordinance or otherwise lawfully so defined or assumed, and to do and perform each and every obligation and duty attached to said right, privilege, license or franchise, whether such obligation and duty be voluntarily assumed or by law attached thereto or imposed thereby.\\\"\\nSection 3, Article VIII of the Constitution, and Section 4, Chapter 113,* Code, each confers upon the Supreme Court of Appeals original jurisdiction in cases of mandamus. But we need not decide whether or not a statute creating in the circuit courts jurisdiction 'by mandamus, operating with Section 3, Article VIII of the Constitution, and Section 4, Chapter 113, Code, would vest like original jurisdiction in this Court. Section 28-b (1), Chapter 47, does not create a new jurisdiction but is simply declaratory of the common law. McQuillin Municipal Corporations, Section 1766. Then as jurisdiction in the case exists at common law, this Court has original jurisdiction under the constitutional provision.\\n(2) The fifth ground, that petitioner has adequate remedy by suit for damages, is equally unworthy. Treatment of effects will not remove causes. Another remedy, which supersedes relief by mandamus, must be specific and appropriate to the circumstances of the particular case, compelling performance of the duty in question. Pipe Line Company v. Riggs, 75 W. Va. 353; Hall v. County Court, 82 W. Va. 564; 2 Spelling on Injunction and Extraordinary Remedies, Section 1375.\\n(3) The second, third and fourth grounds may properly be combined and discussed with the merits of the case, as the proof in behalf of petitioner is confined to the allegations of the petition. The situation therefore resolves itself into a question as to whether a case justifying the relief sought has been established. There can be no question of the city's right to compel relocation of respondent's water main, although originally located under the direction and supervision of the municipal authorities, if warranted by the facts.\\n\\\"Pipes, conduits, rails, and structures erected or constructed in the city streets under a general grant of authority to use the streets therefor are subject to the paramount power and duty of the city to repair, alter, and improve the streets as the city in its discretion may deem proper, and to construct therein sewers and other improvements for the public benefit. This paramount power and duty of the city is clearly governmental in its nature, and in many cases at least, forms a part of the police power of the municipality. The decisions hold that the grantee of the franchise has no cause of action for any damage which it may sustain by acts of the city in reasonably performing its duty in these respects.\\\" Dillon Municipal Corporations, Fifth Ed., Sec. 1271.\\nSuch grant is always taken subject to the exercise by the municipality of proper general police powers. This is so for the obvious reason that a municipal corporation could not, if it would, make any grant of that kind which would disable itself from the exercise of just police powers, since they are governmental and therefore indispensable. Town of Mason v. Railroad Co., 51 W. Va. 183; Railroad Company v. Transportation Company, 25 W. Va. 234; Douglas v. Ky., 168 U. S. 488; Chicago etc. Co. v. Quincy, 29 Am. St. R. 334.\\nIn the recent case of City of Bluefield v. Public Service Commission, (West Va.) 118 S. E. 542, we approved the rule stated in Pond on Public Utilities, Section 410, as follows:\\n\\\"The proper exercise of the police power permits the municipality as well as the State, independent of any franchise grants or statutory authority that may be conferred either upon the public service corporation or the muncipality, to protect the interests of the public in the reasonable use and enjoyment of the streets and highways for which they were dedicated, and in the interest of the public to conserve the public health and the general welfare and convenience of the people. Under the rule which is universally accepted, the municipality has not the power to abridge or surrender its rights to perform its duties -to the public, especially in maintaining its streets for the advantage of the public as a means of transportation and communication, and the municipal officers cannot bind their successors in the proper discharge of such duties, because such powers are legislative, and cannot be abridged. ' '\\nDo the facts, under the city's authority reasonably to regulate the; use of its streets by public utilities acting under municipal franchises, warrant the relief sought? There is plausibility in the position of respondent, that owing to the liberal width of the street and close proximity to its northern border of the water main the work of repairing breaks and leaks in the pipes would not so encroach upon the street as to affect materially traffic thereon. (But petitioner asserts that at places the pipes lie diagonally across the street.)\\nRespondent also.makes claims, unchallenged by petitioner, that to relocate the water line would cost $5500.00, cause interruption for days of water service to the cities of Benwood and McMechen, and result in serious burdens to the respondent in maintaining the line at its proposed location. Must we accept these claims, though unanswered by petitioner, as facts ?\\nThe pipe line need not be disturbed until it has been uncovered and a new trench dug for its reception. Only a short time (relatively) then should be required to remove and reconnect it. The estimated cost of relaying the pipes also may have been strengthened for the purposes of the case. No analysis is given for its basis. The contention of respondent that the maintaining-of its water main at the proposed location would subject it to frequent claims for damages by abutting property owners, involves tacit admission that, by reason of the heavy pressure carried, the pipes are liable to break.\\nIn view of the long use of the pipes under heavy pressure, which will continue, it is, we think, fair to assume that they have broken, and are liable to break, frequently, as petitioner contends.\\nConsidering, then, the facts: that the street in question is a busy thoroughfare; that the pipe line, on account of its long use and continuous strain, is subject to frequent breaks and leaks; that a part of it lies diagonally across the street; and. that it would at least require great care in restoring the street in event of its disturbance resulting from the repairing of breaks or leaks in the pipe line, we are of opinion to award the peremptory writ as prayed for.\\nPeremptory writ awarded.\"}"
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+"{\"id\": \"8636445\", \"name\": \"A. G. & R. R. Flanagan v. C. C. Brown et als\", \"name_abbreviation\": \"Flanagan v. Brown\", \"decision_date\": \"1929-04-30\", \"docket_number\": \"No. 6409\", \"first_page\": \"315\", \"last_page\": \"317\", \"citations\": \"107 W. Va. 315\", \"volume\": \"107\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T01:09:22.793101+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"A. G. & R. R. Flanagan v. C. C. Brown et als.\", \"head_matter\": \"CHARLESTON.\\nA. G. & R. R. Flanagan v. C. C. Brown et als.\\n(No. 6409)\\nSubmitted April 23, 1929.\\nDecided April 30, 1929.\\nA. D. 'Daly, for appellants.\\nJames H. Miller, filed brief for appellees, but died prior to tbe bearing of tbe case.\", \"word_count\": \"854\", \"char_count\": \"4930\", \"text\": \"\\\"Woods, President:\\nA. G. and R. R. Flanagan instituted this suit to restrain tbe defendants from exercising any dominion over a certain plot of ground, designated as \\\"Central Park\\\", on tbe plat filed with tbe deed under which plaintiffs bold, and also to require tbe bouses built thereon to be removed, and that tbe deeds under which defendants claim be cancelled as clouds upon tbe title to the property of tbe plaintiffs and others enti- tied to tbe use of said park. Plaintiffs appeal from an order entered on tbe bearing denying tbe relief sought and dismissing tbeir bill.\\nSometime in 1908, thirty individuals were interested in a scheme to take over and make a summer resort out of what was then known as tbe Barger's Spring property, in Summers county, and incorporated in 1904 as tbe Greenbrier Springs Company. Bach stockholder paid in $300.00 to be used in purchasing and improving tbe property, with tbe understanding that each was to receive three shares of stock in tbe corporation and a lot to be drawn from tbe subdivided portions consisting of some sixty-eight or more lots. It was also tbe understanding that lots drawn could be exchanged for more desirable ones. In 1905, tbe several lots so drawn, or those taken on exchange, were transferred, by one deed, to tbe several stockholders as of that date. A plat, showing the location of the lots, streets, parks, etc., was referred to in the deed and made a part thereof, and was recorded along with the deed. In the description of A. G. Flanagan's lot the \\\"Central Park\\\" shown on, the plat was mentioned as contiguous thereto, and the plat likewise showed the same. A dance pavilion was erected on the park site, and remained there for some fifteen years. A deed of trust was executed on behalf of the corporation, in 1911, to secure a certain loan, and the property was later sold thereunder. Sometime thereafter the pavilion was moved further down the hill and across the road from \\\"'Central Park\\\". C. C. Brown, one of the defendants, in 1925, bought a part of the property, including \\\"Central Park\\\", from the purchasers under the trust deed. He, in turn, made sale of the same to the other defendants, who built thereon. Flanagan testified that he had no notice of any claim of ownership over the park property until he saw the houses thereon.\\nThe plaintiffs, while stockholders in the Greenbrier Springs Company, were in fact purchasers of the lots so transferred to them by the corporation. They took the same in reference to the plat filed as any other purchaser. It is well settled that where a purchaser of a town lot has purchased with reference to a plat and dedication, without reservation, he has acquired an express private easement in all tbe streets, alleys and parks, and may enjoin tbe closing or obstruction thereof by tbe owner, without waiting for'municipal acceptance of tbe dedication. All such streets and alleys are presumed to be appurtenant to bis lot, and, together with tbe parks, were considered in tbe purchase of bis lot as a part of tbe value. Rudolph v. Glendale Improvement Company, 103 W. Va. 81. Not only did tbe corporation file tbe plat, but it made reference in tbe deed to tbe tract contiguous to A. G. Flanagan as \\\"Central Park\\\" in describing tbe latter's property. There is evidence of user by tbe public. Tbe pavilion erected thereon was used for dancing, 'Sunday School, and tbe like.\\nTbe property rights of A. G. Flanagan in tbe park could not have been transferred by tbe deed of trust of 1911, or tbe deed made after tbe sale thereunder, even though tbe corporation bad attempted so to do, unless it could be shown that tbe parties interested consented thereto. 18 C. J. 61; 9 A. & E. Ency. 57, et seq. This deed of trust, under which defendants claim, reserved not only tbe lots and conveyances made to tbe individual stockholders, but tbe rights, privileges, franchises, passways, etc., as set forth in tbe former deeds, contract and conveyances. So a' waiver could not possibly be construed against Flanagan on account of bis being a stockholder in tbe enterprise. Tbe case of Briers v. Alderson, 101 W. Va. 662, relied on by tbe appellees, has no bearing on tbe situation thus presented. Tbe plat, under Rudolph v. Glendale Improvement Company, supra, was a part of tbe conveyance to Flanagan.\\nWhile it is contended that Flanagan ought to have known of tbe building on tbe \\\"Central Park\\\" adjoining him, there is no positive proof that be did. He denies any knowledge thereof until it bad been erected. Under tbe case made, tbe decree of tbe lower court must be reversed, tbe bill re-instated, and a decree entered here granting tbe relief prayed for.\\nReversed; decree entered.\"}"
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diff --git a/w_va/8636521.json b/w_va/8636521.json
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+"{\"id\": \"8636521\", \"name\": \"J. H. Myers v. State Compensation Commissioner\", \"name_abbreviation\": \"Myers v. State Compensation Commissioner\", \"decision_date\": \"1931-04-28\", \"docket_number\": \"No. 6899\", \"first_page\": \"425\", \"last_page\": \"430\", \"citations\": \"110 W. Va. 425\", \"volume\": \"110\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T19:19:37.993042+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. H. Myers v. State Compensation Commissioner\", \"head_matter\": \"J. H. Myers v. State Compensation Commissioner\\n(No. 6899)\\nSubmitted April 14, 1931.\\nDecided April 28, 1931.\\nB. E. Hughes, M. H. Bowyer, and J. B. Menager, for petitioner.\\nHoward B. Lee, Attorney General, and B. Dennis Steed, Assistant Attorney General, for respondent.\", \"word_count\": \"1887\", \"char_count\": \"11169\", \"text\": \"Litz, President:\\nThis is an appeal from the ruling of the state compensation! commissioner, denying tlie claimant, J. H. Myers, further compensation after the allowance and payment of a final-award.\\nMyers, at the age of 73 years, sustained an injury August-8, 1925, while employed as a blacksmith for the Campbell's: Creeld Coal Company in Kanawha County, by lifting a heavy-box of mining machine bits, causing inguinal hernia. He was treated at the McMillan Hospital at Charleston from August 32th to August 14th. His formal application for compensation was filed August 20th. September 8th, Dr. U. G-. McClure of the McMillan Hospital made an affidavit, at the instance of the compensation commissioner, stating that Myers: had a small reducible right inguinal hernia; and that because of his poor physical condition and advanced age, an operation was not attempted. On September 9th, Dr. W. L. Barbour,, in the service of the Coal Company, also made an affidavit at the instance of the commissioner stating that, in his opinion,, the claimant had, before the injury, a relaxed inguinal ring-which had caused hernia to develop from a sudden strain; that a suitable truss should give him proper support and that he found \\\"no physical impairment that would make an operation unadvisable, except his age.\\\" January 18, 1927, the-commissioner, in response to a letter from the claimant demanding compensation, replied that no compensation could be allowed in a case of hernia without an operation. Marclu 11, 1927, Dr. Russel Kessel, medical examiner for the compensation department, after examining the claimant reported5, to the commissioner: \\\"This man is 75 years of age, in fair physical condition, but on account of his advanced years in-life I would not recommend an operation.\\\" June 22, 1927, the claimant was awarded $80.00. Dr. Russel Kessel,'after reexamining the claimant, July 14, 1927, reported to the commissioner that the hernia had increased somewhat since his former examination and that. on account of the- age of the-claimant, he would not advise an operation-.. On July 15; 3927, the commissioner wrote the claimant:. \\\"T find that im looking over the file in your case that since you have returned to work you have worked with a fair degree of regularity, and do not seem to have any disability by reason of your injury. I take this occasion to advise that as the case stands at present further compensation does not ,seem to be due or payable.\\\" On September 17, 1927, Dr. Kessel advised the commissioner that he had found on another examination that the claimant was afflicted with a right hernia, \\\"enormous in size,\\\" extending into the scrotum; that, in his opinion, he would not be able to undergo an operation, and suggested that he be granted 25% permanent partial disability. Dr. Raymond II. Lewellyn, employed by the coal company, in a letter to the compensation commissioner of August 19, 1927, says: \\\"Mr. Myers of Putney has been under Imy care for the past thirteen or fourteen months. During this time his hernia has given him much discomfort and pain, and for many days at. a time he has been unable to work. At all times when working he suffered intensely and states he is unable to heed my advice and stay at home as it is necessary for him to attempt to work. In 'my opinion his hernia and physical condition are of such nature that he is unable to withstand an operation for the repair of it even under local anesthesia. ' '\\nNovember 10, 1927, Dr. Kessel again advised that the claimant, in his opinion, could not undergo an operation. In a letter dated November 28, 1927, addressed to the compensation commissioner, Dr. Lewellyn says: \\\"At your request, I am writing to you again in regard to the claim of Mr. J. H. Myers, No. 4330-32. I re-examined Mr. Myers on November-25, 1927,'and at that time I found his hernia to have increased in size and to be more painful. His general condition has-, not improved and I am more firmly convinced at this time that he is unable to withstand an operation for the repair of his hernia even under local anesthesia.\\\"\\nIn a letter to the commissioner of February 21, 1928, concerning Myers, Dr. 'Lewellyn further states: ' ' His condition at present time is virtually the same that it has been for the-past two years; that is, that he has large inguinal hernia which, at his age, 'is inoperable and will continue to increase in size and become more painful. He is unable to work as. be bas been for tbe past two or three years; although he attempted it to up to a few months ago. Since he ruptured himself his physical labor has always been painful.\\\"\\nMyerS having been granted allowances from time to time, between June 22, 1927, and September 26, 1928, on the.latter date the commissioner* wrote him: \\\"You are this day awarded compensation for one hundred weeks at the rate of $16.00 per week, or $.1,600.00, payment to commence as of October 1, 1927, your injury being determined a 25% diasibility. This award will expire as of July 26, 1929, you having been paid compensation for 57 2/7 weeks or $832.00, as an open claim, leaving balance due on the award of $758.00. Check for $84.57, paying compensation for 5 2/7 weeks to September 30, 1928, will be mailed to you in a few days, in care of your employer at the time of the injury.\\\" After payments had been completed under this award, the claimant applied for further compensation by reason of which, on October 7, 1929, the commissioner wrote him: \\\"After going over the files, I find that I must agree with my former ruling in which I stated to you that no further compensation could be paid in this claim.\\\" On November 21, 1929, the commissioner further advised the claimant by letter: \\\" I regret to inform you that no further compensation can be paid you on your claim.\\\" It seems that the claimant continued to importune the commissioner for further allowances, and, receiving no response, presented his case to the governor who called the matter to the attention of the commissioner. In explanation of his action in refusing to grant further compensation, the commissioner wrote the governor on January 18, 1930, in part, as follows: \\\"Myers is an old man about 75 years of age, has been a blacksmith by profession, and unfortunately has an old scrotal hernia of long standing. According to section 25 of the law, he should have never been on the Compensation Fund, but for some reason or other, he did get on without meeting the requirements of the law, which requirements are to the effect that cases of all hernia coming within the act, the patient must submit to radical operation. This has been explained to Mr. Myers on numerous occasions, and as I see it, Mr. Myers has no further compensation coming to him from the Department.\\\" Without further action having been taken on the part of the commissioner, this appeal was granted September 15, 1930.\\nThe record clearly shows that Myers has never been physically able to undergo the operation required by the commissioner; and that the commissioner's refusal to grant him further compensation is obviously due to a misconstruction of section 25 of the Compensation Act (Code 1923). This section, in part, reads as follows: \\\"In all claims for compensation for hernia resulting from personal injury received in the course of and resulting from the employee's employment, it must be definitely proven to the satisfaction of the commissioner: First, that there was an injury resulting in hernia; second, that the hernia appeared suddenly; third, that it -was accompanied by pain; fourth, that the hernia immediately followed an injury; fifth, that the hernia did not exist prior to the injury for which compensation is claimed. All hernia, inguinal, femoral or otherwise, so proven to be the result of an injury received in the course of and resulting from the employment, shall be treated in a surgical manner by radical operation. If death results from such operation, the death shall be considered as a result of the injury, and compensation paid in accordance with the provisions of section thirty-three. In non-fatal cases, time loss only shall be paid, unless it is shown by special examination that the injured employee has a permanent partial disability resulting-after the operation. If so, compensation shall be paid in accordance with the provisions in section thirty-one with reference to permanent partial disability. In ease the injured employee refuses to undergo the radical operation for the cure of said hernia, no compensation will be allowed during the time such refusal continues. If, however, it is shown that the employee has some chronic disease or is otherwise in such physical condition that it is considered unsafe for him to undergo said operation, he shall be paid as provided in section thirty-one.\\\"\\nThe compensation commissioner has moved to dismiss the appeal; contending that his action in fixing the percentage of disability is not reviewable, and, if reviewable, that Myers has lost his right of appeal by failing to object to the finding and to demand a hearing within ten days from notice thereof, and by failing to apply for an appeal within ninety days from an adverse ruling upon such hearing, as required by section 43, chapter 71, Acts 1929 (23-5-1, Code 1931). Counsel for claimant reply that the right of appeal is governed by the statute in force at the time of the injury. The situation, however, is not changed by adopting this theory, as the former statute . (sections 43, chapter 15-P, Code 1923), also required the application for an appeal to be presented within ninety days after final action of the commissioner.\\nA careful consideration of the record justifies the conclusion that the commissioner, by misinterpreting section 25 of the Compensation Act (23-4-7, Code 1931), has acted without legal authority, but the claimant, after failing to appeal within the time prescribed, cannot now, by treating his petition for an appeal as an application for a writ of mandamus, thereby obtain relief. \\\"The common law writ of mandamus is a prerogative writ invented for the purpose of supplying defects of justice, and issued where there was no-other means of obtaining justice within the reach of the petitioner. Its object, is not to supersede but to supply the want of a legal remedy; therefore to authorize its issuance, two facts must coexist, the right to have the particular act or duty performed and the want of an adequate or specific remedy at law. In order to bar the issuing of the writ, it is not necessary that the other remedy be available at the time of applying for the mandamus, but if the petitioner had a clear legal remedy, adequate to enforce his rights, of which he failed to avail himself and which he lost through his own neglect, the writ will not lie.\\\" 18 R. C. L. 131.\\nThe appeal is, therefore, dismissed as improvidently awarded.\\nDismissed.\"}"
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diff --git a/w_va/8636839.json b/w_va/8636839.json
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+"{\"id\": \"8636839\", \"name\": \"A. H. Legg v. Junior Mercantile Company\", \"name_abbreviation\": \"Legg v. Junior Mercantile Co.\", \"decision_date\": \"1928-03-06\", \"docket_number\": \"No. 6036\", \"first_page\": \"287\", \"last_page\": \"293\", \"citations\": \"105 W. Va. 287\", \"volume\": \"105\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T00:17:38.258390+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"A. H. Legg v. Junior Mercantile Company\", \"head_matter\": \"CHARLESTON.\\nA. H. Legg v. Junior Mercantile Company\\n(No. 6036)\\nSubmitted February 28, 1928.\\nDecided March 6, 1928.\\nBlue, Dayton \\u25a0& Campbell, Arthur S. Dcvyton and William F. Blue, for plaintiff in error.\\nDillon, Mahan & Holt and Wm. 8. Thompson, for defendant in error.\", \"word_count\": \"2401\", \"char_count\": \"13880\", \"text\": \"Lively, Judge:\\nPlaintiff below, A. H. Legg, obtained judgment for $300.00 against the Junior Mercantile Company on agreed facts submitted to the court in lieu of a jury; and the mercantile company prosecutes this writ of error.\\nPlaintiff's claim is based upon metal discs or \\\"scrip\\\" which he purchased for value from unknown persons and which discs or scrip had been issued by the mercantile company in various denominational amounts aggregating a total of $300.00. On one side is the following:\\n\\\"Master Metal Scrip 100 Ingle-Schierloh Co. Dayton, 0. Pat Pend In Mdse Only.\\\"\\nand on the other side is the following:\\n\\\"Junior Mercantile Company JMCo Redeemable in Mdse only 1.00\\\"\\nHaving purchased from persons who were unknown for value this scrip, plaintiff demanded payment from the mercantile company in cash and was refused. Suit was instituted before a justice of the peace where judgment was rendered for the plaintiff, and on appeal to the . circuit court judgment again was rendered for plaintiff by the court sitting in lieu of a jury on agreed facts. It is claimed by plaintiff that this scrip is payable in cash, notwithstanding the words thereon \\\"Redeemable in Mdse Only,\\\" and that the issuance and redemption thereof is controlled by section 80, chapter 15-H, of the Code, as amended by chap. 87, Acts 1925, which makes it unlawful for any corporation, company, firm or person engaged in any trade or business either directly or indirectly to issue to any person employed by such corporation, company, firm or person in payment of wages due' such laborer, or as advances for labor not due, any scrip, token, draft, check or other evidence of indebtedness, payable or redeemable otherwise than in lawful money; and if any such scrip be issued it shall be a promise to pay a sum specified therein in lawful money to the person named therein or to the holder thereof. The amendment to this statute in 1925-is not of importance in this case. It is agreed that the mercantile company did not issue the scrip involved in this controversy, or any other scrip, to any of its employees. But in order to bring this scrip within the purview and control of the statute, the substance of which is above set out, plaintiff claims that the mercantile company was in fact acting for and on'behalf of the \\\"West Virginia Coal & Coke Company, a corporation organized for the purpose of mining coal, and that the scrip involved in the controversy was issued to the eml ployees of the coal company and by them sold to plaintiff. The trial court evidently took that view, for in order to sustain the judgment it is necessary to hold that the mercantile company was in reality the coal company, and that the scrip was issued to the employees of that company and was transferred by them to plaintiff, the holder. It appears from the stipulation that the mercantile company was incorporated under the laws of this state in 1905 to conduct a mercantile business; that the coal company was incorporated under'the laws of this state in 1917 for the purpose of mining coal. The-coal dompany operates a coal mine near Glen Ferris in Fayette county, and the mercantile company conducted its mercantile business in the same town in the year 1926 when the scrip was issued. When the coal company was incorporated it acquired \\u00bf11 of the stock of the mercantile company and has at all times since owned that stock except shares sufficient to qualify the directors. It appears that the mercantile company in the conduct- of its business issued these metal discs to its customers indiscriminately, for instance, as change for cash, and the like. It was also a practice for it to issue scrip to those employees of the coal company who had assigned to it by written, assignment wages then due or to become due from the coal company and which assignment had been accepted by the coal company. When the assignment of wages had been made \\\"and accepted the employees of the coal company would make purchases on the strength thereof and for the balance these metal discs were delivered to the employees; and at the next pay-day of the coal company the mercantile company would collect the amount so assigned in cash. Plaintiff Legg was never an employee of either company. It is stipulated that \\\"the metal coin held by him (plaintiff), was issued by the Junior Mercantile Company either for change as to cash purchases, or upon assignment of wages as \\u00e1foresaid to persons other than the plaintiff, and the plaintiff obtained such metal coin directly or indirectly from such persons by purchase or assignment thereof for valuable consideration as aforesaid. The persons to whom the coin, now owned and held by plaintiff, was originally issued are now unknown and may, or may not have been employees of the West Virginia Coal & Coke Company.\\\" These are the material stipulated facts on which the judgment is based.\\nThe mercantile company argues that these facts do not bring the transaction within the scope of sec. 80, chap. 15-H, commonly known as the \\\"Scrip Law\\\", and therefore that statute has no application; whereas the plaintiff says^that by purchasing the entire stock of the mercantile company, the coal company was attempting to indirectly do that which it could not do under the statute, and falls within its purview. Plaintiff contends that although the two corporations were distinct and organized for different purposes, yet the legal fiction of distinct corporate existence should be disregarded under the stipulation of facts, and that the mercantile company should be considered merely an instrumentality or agent of the coal corporation for the purpose of conducting and facilitating its business; and cites therefor 14 C. J. p. 62, sec. 25, and authorities cited there, and numerous other cases; and Fletcher on Corporations, Vol. 1, p. 64, which says that: \\\"Where the corporate form of organization is adopted in an effort to evade the statute or modify its intent, courts will disregard the corporate concept, and look ^at the substance and reality of the matter.\\\" It is tacitly admitted by plaintiff that unless he can bring the scrip transaction within the purview of the statute, it is lawful for the mercantile company to issue scrip redeemable in merchandise only to persons other than its employees. Unless prohibited by statute, the issuance of tokens payable and redeemable in other than money, the common law and the courts will deny money recovery. Very v. Levy, 13 Howard 345, 14 L. ed. 173; 21 R. C. L. 53, 30 Cyc. 1187. On the other hand, the mercantile company argues that the fact that all of the stock of .the mercantile company is owned by the coal company is not sufficient to permit the court to disregard their separate corporate en tities, there being a complete absence of any element of fraud or oppression, and this case being cognizable in the legal fornm. Peterson v. Chicago etc. Ry. Co., 205 U. S. 364; Commodities Cases, 213 U. S. 366, 53 L. Ed. 836; P. & B. Co. v. Duncan, 232 Fed. 587. Cook on Corporations, Vol. 2, 8th ed., sec. -317, p. 1084, and nnmerons other cases to the effect that it requires a strong case to induce a court of equity to consider two corporations as one, on account of one owning all of the stock of the other. An inspection of the facts stipulated reveals that the closeness or intermingling of the affairs of the two corporations are very meager. The onty facts by which we could determine that the two corporations are the same, and one is a mere subsidiary or instrumentality of the other organized and incorporated for the purpose of facilitating the business of the latter, is that the coal company owns all of the stock except the qualifying directors' shares; that they operate in the same neighborhood; and that the mercantile company accepted assignments of money for wages from the employees of the coal company and collected the money so assigned from the coal company at its next pay-day. It does not appear whether the officers of the two companies are the same or what dictation or control the coal company exercises over the mercantile company. It is not shown that the mercantile company was formed for the purpose of facilitating the mining and sale of coal, or furnishing sustenance or supplies to the employees of the coal company, nor is it shown that the employees of the coal company .were required to deal with the mercantile company in purchasing their necessities. The inference is otherwise, because the mercantile company was located in a thriving town where other stores would likely be operated. Whether the mercantile company sold mainly to the coal company's employees or to the general public does not appear. But we do not deem it necessary for the purpose of this case to decide whether the two companies are one and the same. The briefs on that question are exhaustive and illuminative and counsel on both sides can be commended for their efforts to aid the court in a determination of that question. But, take it for granted for the purpose of this case that the two corporations are virtually the same, (a proposition not decided), and therefore that the transaction falls within the influence of the \\\"scrip statute\\\" referred to, we are met by the stipulation of fact which says that plaintiff was at no time employed by either the coal company or mercantile company, and that the metal discs or scrip was originally issued to parties unknown and' may, or may not have been employees of the coal company. If any of this scrip was issued to persons other than employees of the coal company or mercantile company and passed into the hands of plaintiff he could not recover a money judgment therefor. 'Ve are left to guess the proportion, if any, purchased by plaintiff from employees or non-employees. It is a matter of conjecture whether all of the scrip sued on was issued to the employees of the coal company or whether all was originally issued to persons other than employees. The two deductions which may be made are inconsistent for the purposes of recovery; for if persons other than employees transferred to plaintiff the scrip he cannot have money judgment ; if on the other hand the employees of the coal company sold them to him he can have money judgment, assuming that the two companies are one and the same. ' ' When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof. A verdict in favor of the party bound to maintain one of these propositions against the other is necessarily wrong.\\\" 10 R. C. L. p. 896, sec. 44. Nor does it appear from the stipulation of facts the proportion of scrip issued in the conduct of the business which went to employees of the coal company, or to strangers. It is simply stated that it was the practice of the mercantile company to issue scrip to persons who might be called strangers, and also to employees upon assignment of their wages accepted by the coal company. Which was the greater volume of business? We are left to conjecture. If it be taken for granted that some of each went into the hands of plaintiff, there is no basis on which a recovery can be had because we cannot even approximate it. Plaintiff has stipulated that the persons from whom he purchased the scrip are unknown. He does not attempt to say that any of them were employees of the coal company. It is basic law that a plaintiff must sbow by his evidence or by stipulation of fact in .lieu of evidence some reasonable basis on which to predicate a judgment, and not leave it to conjecture. Plaintiff relies upon the proposition established, that in reviewing a case tried by the lower court on agreed facts in lieu of a jury, this Court should treat it as a ease standing on a demurrer to the evidence. State v. Miller, 26 W. Va. 106; Board v. Parsons, 24 W. Va. 551; Rohrbough v. Express Company, 50 W. Va. 148. But in viewing the agreed facts as upon demurrer thereto and giving to the plaintiff all reasonable inferences which may be drawn therefrom, it is impossible to find any specific amount on which plaintiff is entitled to base his judgment. Surely it cannot be for all, for there is no reasonable ground-on which to base the assumption that all of the scrip' held by him was purchased from employees of the coal company; and as above stated it would be a wide conjecture to ascertain what portion was so purchased. Possibly some of it was; and there is like possibility that none was. There is .no reasonable evidence on which to base a judgment at all. Evidence to establish a debt should do more than produce a suspicion' of the fact, it should be sufficiently clear and definite in its character to satisfy the mind of the court of the fact to a reasonable certainty. Simms v. Bank, 8 W. Va. 274. \\\"A verdict based alone on mere conjecture, without evidence to support it, where the rule as to burden of proof requires some reliable affirmative evidence, should not be permitted to stand.\\\" Robinson v. Ry. Co., 40 W. Va. 583; Moore v. Heat & Light Co., 65 W. Va. 552. There is no basis for any calculation by which an approximate amount can be ascertained on which to base a recovery. The burden is on the plaintiff to produce evidence or facts on which a jury or court can with reasonable certainty base a verdict or judgment. Unfortunately for plaintiff, we do not find such basis in the agreed statement. The judgment should be for defendant; and proceeding to do what the lower court should have done, a judgment of -nil capiat will be entered here.\\nJudgment reversed; entered for defendant.\"}"
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+"{\"id\": \"8636872\", \"name\": \"Emma Brennan v. Charles Schad\", \"name_abbreviation\": \"Brennan v. Schad\", \"decision_date\": \"1928-11-20\", \"docket_number\": \"No. 6207\", \"first_page\": \"356\", \"last_page\": \"360\", \"citations\": \"106 W. Va. 356\", \"volume\": \"106\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T00:32:13.012681+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Emma Brennan v. Charles Schad\", \"head_matter\": \"CHARLESTON.\\nEmma Brennan v. Charles Schad\\n(No. 6207)\\nSubmitted November 13, 1928.\\nDecided November 20, 1928.\\nWm. B. Casey and Frank W. Nesbitt, for plaintiff in error.\\nHandlan, Garden & Matthews and O\\u2019Brien & O\\u2019Brien, for defendant in error.\", \"word_count\": \"1492\", \"char_count\": \"8685\", \"text\": \"Maxwell, Judge:\\nThis case involves a writ of error to a judgment of the circuit court of Ohio county based on a verdict in favor of the plaintiff and against the defendant for the sum of $5,028.75.\\nOn the 6th day of June, 1925, the Benwood Bank issued a cashier's check in the sum of $4,500.00 on the Citizens' Mutual Trust Company of Wheeling payable to Graner Realty Company. This check represented a part of the consideration being paid by the plaintiff in the purchase of certain resi dential property in the city of Wheeling. She had recently sold other property and had deposited $4,600.00 in the Ben-wood Bank.\\nThe trust company refused to pay the cheek on the ground of insufficient funds of the Benwood Bank on deposit with it to meet the check.' On being informed of this fact the plaintiff, her brother-in-law, T. W. Landers, and Carl J. Fischer, representative of Graner Realty Company, went to the Ben-wood Bank to look after the matter, and not being able to get any satisfaction there, they called into the conference the defendant, a prominent citizen and substantial merchant whose place of business was just across the street from the bank. The plaintiff had dealt at defendant's store, and they had been acquainted for many years. She and her companions thought he was a director in the bank. The fact proved to be that he was a stockholder and depositor, but not at that time a director, though he had been formerly. Mrs. Brennan was in much distress because of the seeming precarious condition of the bank, her inability to use the cashier's check or to withdraw her deposit, and, in consequence whereof, her incapacity to make a payment then required to be made on her pending real estate purchase in Wheeling. After some discussion the defendant said in effect that he did not know anything else to do than for him to draw his own check payable to the plaintiff in the sum of $4,500.00. This was readily assented to by the plaintiff. Fischer then procured the cashier's check which had been refused payment and returned to the Benwood Bank with it. The defendant first drew a check on the Benwood Bank. This was not accepted. Thereupon he drew a check on the South Side Bank of Wheeling in the sum aforesaid payable to Graner Realty Company. The cashier's check above mentioned was left at defendant's place of business though he testifies he had stated to Fischer that he did not want it. And he further says he did not know it had been left at his store until after Fischer and the other parties had departed. This was on the eighth day of June. That same evening defendant went to the home of plaintiff and requested and obtained her check in the sum aforesaid, drawn on the Benwood Bank, payable to defendant. The nest morning', after liaving learned that the affairs of the Benwood Bank were probably in worse plight than he had anticipated, defendant stopped payment on'the cheek which he had drawn on the South Side Bank. At a later date defendant returned to plaintiff the check which she had given to him as above narrated, but he failed to obtain the check which he had drawn on the South Side Bank though he requested its return. As to the .cashier's check defendant testified that a few days after the Benwood Bank failed he mailed it to the Graner Realty Company; that it was returned to him; that he then placed it in the hands of Mr. Casey, his attorney, who turned it over to the realty company ; but that company again returned it to defendant. He says he considered it worthless.\\nThis suit is based on the check for $4,500.00 drawn by defendant on the South Side Bank of 'Wheeling.\\nIn addition to the general verdict two special interrogatories were anwered by the jury as follows:\\n\\\"FIRST: Was there a mutual understanding or agreement between the plaintiff and defendant that defendant was to accept the cashier's check of the Bank of Benwood drawn on the Citizens' Mutual Trust Company in payment of or in exchange for defendant's check in the sum of Forty-Five Hundred ($4,500.00) Dollars drawn on the South Side Bank and Trust Company of Wheeling ?\\nThe above interrogatory was answered: 'Yes.'\\nSECOND: Did the defendant give his cheek in the sum of Forty-Five Hundred ($4,500.00) Dollars to the Graner Realty Company as an accommodation or loan for the Sole purpose of assisting Mrs. Brennan in the purchase of the real estate in evidence and without any valuable consideration ?\\nThe second interrogatory was answered: 'No.' \\\"\\nOne of the main points of error is that there is not sufficient evidence to support the jury's affirmative answer to interrogatory number one. Though the defendant denies that he accepted the cashier's cheek in exchange, both the plaintiff and Fischer testify unequivocally that this check was turned over to defendant in exchange for his check. The jury was warranted in resolving the finding \\u00abon this matter in favor of the plaintiff and of answering interrogatory number one in the affirmative.\\nNow, let us examine the jury's second finding, to-wit, that defendant's check for $4,500.00 payable to Graner Realty Company was not given by him as an accommodation or loan for the sole purpose of assisting plaintiff in the purchase of the real estate in evidence and without valuable consideration. It is true the defendant was befriending the' plaintiff. He acted through altruistic motives. He was desirous of assisting a woman in distress. Incidentally he was very properly interested in preserving the integrity of the Benwood Bank and of staving off the drastic action which plaintiff and her two male companions threatened if her matter was not promptly taken care of in some manner. This is entirely consistent with plaintiff's contention that there was an exchange of cheeks. It might also be consistent with defendant's theory that, he was merely making an accommodation loan to the plaintiff but for one outstanding fact, namely, defendant's stopping, payment of the South Side Bank check early next morning as soon as that bank had declined to receive for credit a check drawn by him in like amount on the Benwood Bank. If he had been endeavoring only to assist the plaintiff through a loan and not through an exchange of checks, it scarcely seems that his laudable undertaking in that particular would have come to such sudden termination. In our opinion the jury was warranted in its second special finding as well as the first.\\nThe point is made that by reason of the defendant's stopping payment of his cheek he was relieved from obligation to pay the plaintiff the amount thereof. This would probably be true if the transaction were a mere accommodation as defined by the law. 3 R. C. L., 1120; Grenville v. Ormand, 51 S. C. 663, 64 A. S. R. 663. But this privilege of an obligor does not obtain where the instrument involved is based on valuable consideration.\\nAnother point of error is the court's admission of the testi mony of Honorable Wright Hugus, counsel for the receiver of the Benwood Bank. Basing bis answer on bis intimate knowledge of the assets and liabilities of the bank be stated that the cashier's check was worth about fourteen per centum of its face value. If' so, it was not worthless as argued by the defendant! and to the extent of its actual worth it was valuable consideration for the issuance by defendant of the check in suit. For this purpose the admission of this testimony was not erroneous. Consideration, generally speaking, need not be full and adequate, there being no fraud. Ordinarily, consideration valuable though inadequate will suffice. McCary v. Traction Co., 97 W. Va. 306. Valuable consideration is embodied in an exchange of checks. 8 C. J. 227. And then, too, where there is a mutual exchange of commercial paper even if the paper on one side proves to be worthless, a defense on that ground will be unavailing. 1 Daniel Negotiable Instruments, sec. 187. \\\"In an exchange of checks each check is a consideration for the other; each is an independent obligation and not conditional on the payment of the other.\\\" Brannan's Neg. Inst. Law, (4th ed.) p. 228.\\nThe questions of law involved were carefully and correctly presented to the jury in the instructions. There is no complaint made of them. We find no prejudicial error of law in the record. It was the jury's province to determine the facts, and we cannot say that its findings were not warranted by the evidence. We therefore affirm the judgment.\\nAffirmed.\"}"
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+"{\"id\": \"8636916\", \"name\": \"Pauline M. Conley, Admx., etc. v. State Compensation Commisioner\", \"name_abbreviation\": \"Conley v. State Compensation Commisioner\", \"decision_date\": \"1929-09-10\", \"docket_number\": \"No. 6511\", \"first_page\": \"546\", \"last_page\": \"549\", \"citations\": \"107 W. Va. 546\", \"volume\": \"107\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T01:09:22.793101+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Pauline M. Conley, Admx., etc. v. State Compensation Commisioner\", \"head_matter\": \"CHARLESTON.\\nPauline M. Conley, Admx., etc. v. State Compensation Commisioner\\n(No. 6511)\\nSubmitted September 4, 1929.\\nDecided September 10, 1929.\\nRollo J. Conley and Joseph G. Conley, for appellant.\\nHoward B. Lee, Attorney General, and R. Dennis Steed, Assistant Attorney General, for the State.\", \"word_count\": \"1028\", \"char_count\": \"6106\", \"text\": \"Hatcher, Judge:\\nThis appeal involves the claim of H. P. Scranage for workmen's compensation. It is based on an alleged injury to his heart from the inhalation of carbon monoxide gas while in the course of his employment by the Maryland Coal Company. The company is a subscriber to the Workmen's Compensation fund. The claim was denied by the Compensation Commissioner, and an appeal taken to the Workmen's Compensation Appeal Board. Mr. Scrange died while his appeal was pending there. The Legislature abolished that board before it acted on the claim. Pauline M. Conley was appointed ad-ministratrix of his estate as well as guardian of his only child, and she prosecutes the appeal in this Court.\\nThe Commissioner moves to dismiss the appeal because application therefor -was not made to this Court within ninety days after notice of the final action of the Commissioner as provided by section 43, Chapter 15P, Code. The appeal to the Appeal Board was taken within the ninety days. While that Board was without jurisdiction to hear the cause (see Acts, 1925, Chapter 68, Section 57), the appeal thereto shows that the claimant had not abandoned his demand but was prosecuting it as best he knew how. We have held that the Workmen's Compensation Act should be construed liberally and not strictly. Caldwell v. Compensation Commissioner, 106 W. Va. 14, 18. We are, therefore, of opinion that the claimant should not lose his right of appeal here when in good faith he secured a timely appeal before the wrong tribunal.\\nThe Commissioner further contends that under Acts 1925, Chapter 68, section 31, the petitioner here has no right as administratrix to the fund claimed. That may be true, but she does have such right as guardian, which appointment she also holds.\\nMr. Scrange was soldering spouting with a gasoline soldering torch. He testified that on the first day he used the torch he experienced nervousness and headache, and on the second day he suffered so severely that he had to stop work. He was treated at the time by Dr. C. M. Eamage, of Fairmont, who testified that Mr. Scranage was suffering from carbon monoxide poisoning; that he had \\\"dilitation of the heart, poor action of the valves and weak and rapid beat of the heart\\\"; and that the injury was permanent. The doctor was of opinion that the injury was due to the carbon monoxide poisoning.\\nAfter the claim was filed, Mr. Scranage was examined by Dr. B. M. Chenoweth of \\\"Wendel, who is the physician for the Maryland Coal Company, and by Dr. D. C. Peck of Grafton. These physicians deposed that they found Mr. Scranage suffering from a mitral stenosis which is \\\"an infection of the mitral valve of the heart\\\". They attributed his condition to an attack of inflamatory rheumatism which he had when about eight years old, and were of opinion that such heart conditions as his were due to infections in the blood, and that carbon monoxide poisoning had nothing to do with them. Dr. Chenoweth acknowledged that he knew little of the effects of gas poisoning on the human body. Dr. Peek admitted that he was \\\"entirely unfamiliar with carbon monoxide poisoning\\\", and that he had never treated any case of gas poisoning and \\\"could not offer any expert opinion on that.\\\"\\nBussell Kessel, M.D., who is a member of the medical department of the Commissioner, considered the evidence in this ease and advised the Commissioner as follows: \\\"From our knowledge of monoxide poisoning, claimant may have a weakened heart as a result of same. However, due to the fact that claimant was working in a room which was not well inclosed, it is not our belief that he could have gotten enough carbon monoxide poisoning to cause affection of the heart. It is likewise our belief which is based on expert dependant judgment, that mitral stenosis is-not a resulting factor from carbon monoxide poisoning.\\\"\\nMr. Scrange was in no sense a malingerer. He was 46 years old and,while never a robust man, bad worked steadily prior to bis alleged injury with no apparent symptoms of organic heart trouble. After the injury this trouble was manifest. The evidence clearly proves that be was poisoned by carbon monoxide gas. Is the relation of the poisoning to the stenosis causative or coincident ? If causative, or if the stenosis was materially aggravated thereby, Scranage was entitled to compensation. In view of the testimony of Dr. Ramage we are of opinion that this claim should not be denied in the absence of convincing evidence to the contrary. It is true that Dr. Kessel believes that mitral stenosis does not result from such poisoning. But he bases that belief on \\\"expert dependant judgment.\\\" We have no definite idea what he means by that phrase. If he refers to the opinions of members of his profession who are competent to advise expertly on this matter, his belief is of course well founded. But if he refers to the judgment of Doctors Chenoweth and Peek on the effects of gas poisoning, his opinion is not determinative, as their own admissions disqualify them as experts thereon. It is therefore not clear whether competent evidence supports the finding of the Commissioner. It seems to us that the writings of standard medical authorities should definitely establish whether mitral stenosis may be a sequela to such poisoning. Counsel for the petitioner refers to Dr. Henderson of Scotland and Mr. Stressman of Germany as the leading authorities on this subject, and states that both support the opinion of Dr. Ramage. We cannot lightly disregard this statement. We therefore recommit this ease to the Commissioner with the recommendation that he have the medical department examine the works of Dr. Henderson and Dr. Stressman as well as other authorities on the effect of carbon monoxide poisoning on the heart, and then advise him accordingly.\\nReversed.\"}"
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+"{\"id\": \"8637654\", \"name\": \"Payne v. Staunton\", \"name_abbreviation\": \"Payne v. Staunton\", \"decision_date\": \"1904-03-01\", \"docket_number\": \"\", \"first_page\": \"202\", \"last_page\": \"220\", \"citations\": \"55 W. Va. 202\", \"volume\": \"55\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T22:18:36.435621+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judge MoWboeteR concurs in this opinion.\", \"parties\": \"Payne v. Staunton.\", \"head_matter\": \"CHARLESTON.\\nPayne v. Staunton.\\nSubmitted November 16, 1903.\\nDecided March 1, 1904.\\n1.- Elections' \\u2014 Toll Boojcs \\u2014 County Cleric.\\nPoll-books of a special election under a special act of tlie Legislature deposited in the office of the clerk of a county-court are public papers or documents under sections 3 and 5 of chapter 1X7. Code, and the clerk is under duty to allow inspection of them under proper circumstances to a person interested in them, though such special act he unconstitutional, (p. 204).\\n2. County Clerk \\u2014 Public Records \\u2014 Mandamus.\\nSeveral persons who make common application to. a clerk of a county court for inspection of public records, and are refused it, if entitled to such, inspection, may unite in mandamus to compel such inspection, (p. 208).\\n3. County Clerk \\u2014 Records.\\nA clerk of a county court has such interest as entitles him to refuse an inspection of records in his office when such inspection is not called for by law. (p. 209).\\n4. Ministerial Officer \\u2014 Unconstitutional Act.\\nMinisterial Officer. Can he refuse to perform an act required by an unconstitutional statute before it has been judicially declared invalid? (p. 210).\\n5. Mandamus \\u2014 Interested Persons.\\nA pecuniary interest in an individual in the act sought to be compelled by mandamus must exist to maintain it. (p. 210).\\n6. Mandamus \\u2014 Common Interest.\\nOne or more individuals may maintain mandamus to compel the doing of an act, in which the public at large, including them, have a common interest, (p. 211).\\n7. Public Records.\\nInspection of records and papers in a county clerk\\u2019s office is not a right vested in every person or under all circumstances. The person asking it must have an interest in the record or paper of which inspection is sought and the inspection must be for legitimate purpose, (p. 212).\\n8. Mandamus \\u2014 Pub He Records \\u2014 Interested Persons.\\nMandamus will not lie to compel inspection of records by a private individual for the sole purpose of learning evidence for the institution of criminal prosecution, (p. 214).\\nError to Circuit Court, Kanawha County.\\nAction by J. M. Payne and others against E. W. Staunton, county clerk. Judgment for defendant. Plaintiffs bring error.\\nAffirmed.\\nLiNN, ByrNe & Cato, P. G-. WalKer, and A. Buelew, for plaintiffs in error.\\nMollohaN, MoCliNtio & Mathews, for defendant in error.\", \"word_count\": \"7757\", \"char_count\": \"44238\", \"text\": \"BeaNNON, Judge :\\nThe Legislature of 1903 passed chapter 59 \\\"to authorize the county court 'of Kanawha county to fund the indebtedness of said county by issuing its bonds, and to authorize a special election for that purpose.\\\" Under that act an election was held upon the question whether bonds should be issued, and the returns of the election were made and canvassed, and the result ascertained, and the poll books and ballots were returned to the office of the clerk of the county court. J. M. Payne and others applied to E. W. Staunton, clerk of the county court, to be allowed to inspect the poll books of said election for all the precincts of the county but he refused to do so.\\nThen they demanded that said clerk made them certified copies of certain ones of said poll books, offering to pay for them, but said clerk refused to make such copies. Then said Payne and others applied to the circuit court of the county by petition for a mandamus to compel the clerk to allow them to inspect said poll books, and to make such copies as they should require. An alternative mandamus was awarded, and upon its return Staunton demurred to it and moved to quash the alternative mandamus, and the court gave judgment sustaining the demurrer to the petition, and quashing the alternative mandamus, and from this judgment the plaintiffs sued out a writ of error.\\nOne defense made by Staunton is, that the poll-books are not records or papers contemplated and provided for in section 5, chapter 111, Code, providing that \\\"the records and papers of every court shall be open to the inspection of any person, and the clerk shall, when required, furnish copies thereof.\\\" The reason given for such denial of the public character of these poll-books is, that the act of the Legislature under which the election was held vi\\u00f3lales Art. 6, section 39, of the constitution prohibiting special or local legislation in certain cases. Staunton claims that these poll-books are not more than waste paper in his office, and that no duty rests upon him to allow inspection or make copies of them, because of the unconstitutionality of the act. We will not pass upon the validity of the act, because we do not find it imperative upon us to do so. In deference to the Legislature, it is everywhere held by the courts that courts will not pass upon this question, unless a decision upon that very point is necessary to the determination' of the ease. Edgell v. Conaway, 24 W. Va. 747. Even if we say that the act is open to such objections, still we hold that these poll books are public papers on file in a public office subject to inspection, for the purpose of this case; they are such pro hoc vice. It is of primary import that public records and papers shall be of ready access to the public, and we must be reluctant io declare that a custodian of them can restrict this right incorporated in the cited provision of the Code. We must be slow to announce that a clerk, whose duties as to their inspection and making copies of them, are purely ministerial, not discretionary, can assume the dangerous power to hold an act of the Legislature invalid and for that reason deny to citizens the right to inspect papers deposited in his office and custody only for preservation and public inspection and use because merely they originated under such a statute. We do not say that any and every paper happening to be in the clerk's office is official, or that a.ny but legally public ones give the right to inspection; but that is not the case in this instance. These election papers have higher character. The election was held, the returns made, the result canvassed and declared and the poll-books put in the keeping of the clerk in the public office under color of law; they were actually in tire office. Section 3, chapter 117, Code, says, \\\"all papers returned to, or filed in the clerk's office shall be preserved therein until legally delivered out.\\\" This only requires that they be \\\"returned to or filed in\\\" the office. It does not draw the refined distinction that those filed under valid law are to be preserved, while those filed under an act turning out to be unconstitutional, though filed under color of law, are simply re fuse or waste in tbe office. Could tbey be thrown in the street, or altered or burned by the clerk with impunity ? If citizens favorable to or against the bonds, believing a recount would sustain or defeat the proposition, should ask inspection prior to demand of recount, could they not lawfully do so ?\\nA question of great practical importance comes up in this case. Can a clerk asked to do .a ministerial act refuse on the ground that the statute under which he is asked to do that act is unconstitutional ? Can he say that the Legislature has violated the constitution before the statute has been judicially declared void ? Merrill on Mandamus, section 65 says: \\\"But the courts will not consider the constitutionality of a law in a mandamus proceeding ai the instance of a ministerial officer. If he should be allowed to question the law of the land, the operations of the government would be thwarted and great confusion would result. If the law is void, the parties can appeal to the courts' for further protection. A mandamus will not be issued to compel the granting of a license under a law for a reason which, if valid, shows the law itself to be unconstitutional.\\\" Not much consistency or clear guidance is there in that section. Merrill cites Smyth v. Fitcomb, 31 Me. 272, holding that a ministerial officer, collecting and disbursing revenue, has no right to withhold' performance of ministerial acts, prescribed by law, merely because possibly the law may be unconstitutional.\\\" He cites People v. Soloman, 54 Ill. 39. In it an assessor refused to assess certain taxes on the ground that the law was invalid. The law was held valid; but the court broadly states the law to be that a ministerial officer cannot be allowed to decide upon the validity. \\\"It is the duty of a ministerial officer to obey an act of the Legislature directing his action, not to question or decide upon its validity,\\\" the court said. The fully considered case of State ex rel. v. Auditor, 47 La. Ann. 1679, holds, even against the State Auditor and Treasurer refusing to pay money under a statute allowing it, that \\\"Executive officers of the State government have no authority to decline performance of purely ministerial duties imposed upon them by a law, on-the ground that it contravenes the constitution. Laws are presumed to be and must be treated and acted upon by subordinate executive officers as constitutional and legal until their unconstitutionality has been judicially established.\\\" For the double purpose of showing that these poll-books are, for the matter involved, public papers properly in the office, and also the holding that a ministerial officer cannot refuse to file them because in his opinion, the act under which an election is held is unconstitutional, I refer to Franklin Co. v. State, 20 Am. & Eng. Corp. Cases, 60, (24 Fla. 55). The syllabus says: \\\"A statute which requires inspectors to canvass votes of an election and make return to the county commissioners imposes upon such commissioners the duty of receiving and keeping the returns in their official custody, as records. Neither the constitutionality of such statute nor the legality of the election held thereunder can be considered by the commissioners officially; nor can the same be raised by them as ground for not performing such duty in a mandamus brought to compel its performance.\\\" In State v. Commissioners, 18 Nebraska 506, a mandamus issued to compel commissioners to call an election, the court refusing to pass on the validity of the act, saying that the presumption is in favor of the validity of a statute, and that it is the duty of all ministerial officers to obey it until it is declared invalid. There the court by mandamus compelled an act going straight to the enforcement of the statute. The presumption that a statute is valid always operates, just how far is not clear. Some courts say that it operates until it is 'judicially declared to be void. The expression in point 2 in State v. Buchanan, 24 W. Va. 312, has this import. It is a very grave assumption of power for an officer exercising ministerial functions to say that the highest, the sole, law-making power has violated the constitution and he will therefore disobey its will. Great confusion and disorder might ensue from the exercise of such power. It should rarely be exercised \\u2014 very prudently \\u2014 only in plainest cases. I do not think that mandamus will go to compel an officer to do an act going directly to execute an invalid statute. I do not see that a court will take affirmative action to enforce it. But this is not a mandamus to enforce the statute. It is not to compel officers to hold, return, declare the result of, or issue bonds under, the statute. The demand upon the clerk did not call for an act on his part to enforce the statute in question; it was made under the Code, section given above, allowing inspection and copies, and the contested statute does not enter into the matter, except from the fact that the documents were created under it. And the poll-books did not go to the enforcement of that statute, as they were to be used only as evidence to punish frauds in elections. So, the court was not asked to enforce the statute condemned as invalid. In support of the position that mandamus will not be awarded to compel the direct enforcement of a statute against the constitution it may be useful to give some cases. A mandamus was sought to compel a town clerk to assess a tax; but the court, holding that the statute commanding it was unconstitutional, it was refused. State v. Tappan, 29 Wis. 664. A statute required supervisors to divide counties into districts. Mandamus refused to compel them. Van Horn v. State, 46 Neb. 62. Mandamus refused to compel canvassing board to count ballots as directed by the statute. Maynard v. Board, 84 Mich. 288, (11 L. R. A. 332). Mandamus refused to compel controller to draw warrant to pay a demand allowed by a statute. Patty v. Colgan, 97 Cal. 251. Mandamus refused to pay bond. Brandenstein v. Hoke, 101 Id. 131. Mandamus refused to compel payment of judge's salary. Madamount v. Dinie, 6 N. Dak. 278. So to compel issue of town bonds to build a railroad. People v. Bachellor, 58 N. Y. App. 128. These are the cases where mandamus would operate directly to execute the unconstitutional law. For this reason I do not doubt the text of 19 Am. & Eng. Ency. L. (2nd ed.) 1090, that \\\"it is the prevailing rule that ministerial officers charged by a certain act with a duty may urge the unconstitutionality of the act as a defense to mandamus to compel them to perform the duty.\\\" An officer surely can refuse to do an act not imposed upon him as a duty by law. \\\"An unconstitutional act is not a law; it confers no right; it imposes no duty; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.\\\" Norton v. Shelby County, 118 U. S. 425. Though in 1813 in Custis v. Lane, 3 Munf. 579, the eminent Judge Eoane said that it was a grave question whether action would lie against an officer acting in obedience to a legislative act found to be in conflict with the constitution, it is at this day fully settled that such an act is no law and affords no protection to a ministerial officer for an act doing harm to another. Norton v. Shelby County, 118 U. S. 425; Mechen on Pub. Offices, section 662; Fisher v. McGirr, 61 Am. D. 381; 23 Am. & Eng. Ency. L. 369, (2nd ed.) \\\"When an act is adjudged to be unconsititutional, it is as if it never had been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was made.\\\" Cooley, Con. Lim. 259, (7th ed.). It would seem to be logical and just that an officer has right to refuse to act under a void statute on the principle of self preservation. But in so doing he acts at his peril; for if he is mistaken, he is liable for non-feasance of duty. \\\"If it is unconstitutional no one is obliged to obey. If constitutional it binds every one to obedience. Disobedience on such ground is always at the peril of the party disobeying whether a private individual or a public officer.\\\" Clark v. Miller, 54 N. Y. 528. As he cannot be compelled to act, cannot be sued or punished for not acting, it follqws that he may refuse to do an act under a void statute. The case of the State v. Butler, 77 S. W. 560, is a well considered, elaborate case, based on this principle. An. indictment was found against a person for attempt to bribe an officcer to vote in a certain way in discharging a duty under a city ordinance, and the Supreme Court of Missouri held the ordinance void, and that it imposed no legal duty, and therefore there could be no bribery to do the act. Under this doctrine I would hold that if the duty asked of Staunton went to execute the act, and if the act were void, he could not be compelled to perform it.\\nIt is contended by Staunton that the plaintiffs cannot join in a mandamus; that each individual has a separate right, not joint, and cites 13 Ency. PI. & Prac. 645, reading: \\\"Those who have a common and joint interest\\\" may join in mandamus, and should join. Without strain, it may be said that all citizens have a common interest in seeing that records in a clerk's office are preserved and that proper inspection be granted, as it is that the county be supplied with a court house. Is this not a matter of common public right, and may not citizens unite to vindicate it ? But these plaintiffs united in a demand for inspection-; the demand was joint; the refusal to all in common; the wrong done, one single wrong to all alike.\\nThe plaintiffs say that Staunton could not refuse them inspection because he has no such pecuniary interest as will enable him to faise the question of the constitutionality of the act of the Legislature, and this upon the legal principle that courts do not hear \\\"an objection made to the constitutionality of an act by a party whose rights it does not effect, and who has therefore no interest in defeating it.\\\" Cooley Con. Lira 232; Lampsell v. Bell, 180 U. S. 276; 6 Am. & Eng. Ency. L. 1080. The plaintiffs say that all Staunton had to do was to> keep the records and allow inspection, and make copies for pay. So Judge JOHNSON remarked of the assessor in State v. Buchanan, 24 W. Va. 375. But it doe^ not strike me that an officer, as regards his individual interest, is compelled to spend time and labor to do a thing which the law does not impose upon him as a duty. He has an actual, we may say valuable or pecuniary interest in resisting. But then many cases, several cited above, allow an officer called on to exercise his office to resist mandamus by pleading the constitution against the statute. He is actually interested in the matter.\\nWe now encounter a question raised by Staunton's demurrer to the petition and motion to quash the mandamus nisi, which question is, whether the plaintiffs present to the court such interest in the documents and purpose in their inspection as entitles them to inspection and mandamus to secure it. \\\"The remedy by mandamus is restricted to cases where the relator is deprived of some pecuniary right.\\\" \\\"A mere abstract right, unattended by any substantial benefit to the relator, will not be enforced by mandamus.\\\" 19 Am. & Eng. Ency. L. (2nd ed.) 884, 758. \\\"To maintain his mandamus in such a case (private right) the relator must show some personal or special interest in the matter.\\\" Merrill on Mandamus, section 228. As to the private individual right of the plaintiffs. The election was over. They do not say that its result was unsatisfactory, or that it had been falsely declared, or that they sought by recount or contest to change it, or that they had been denied their votes, or that the election had already prejudiced them, or that they were harmed. They do not point out how they as individuals had any pecuniary interest, or sought by the documents to vindicate such interest. They do not say that they had suffered or would suffer a penny's loss because of the election, or that they had been, or would be detrimented thereby. Therefore, as individuals, they show no actual interest or loss or damaged right to be vindicated by the inspection of the writ. They say they are citizens, voters and taxpayers of the county; but it is not seen tbat the fact gives them any individual right over persons not such asking inspection of records. Could they sustain an action against Staunton for damages? They could not.\\nCan the plaintiffs sustain their case upon the theory that they represent and seek to vindicate the public right? They do not sue for themselves and others, but only as themselves citizens, taxpayers and voters. Where a clear public right common to the community at large is wronged and calls for vindication, some eases hold that it must be done by the public officer, others that citizens may do so. 13 Ency. Pl. & Prac. 630. Merrill on Mandamus, section 230 says: \\\"The great weight of American authority is to the effect that where relief is sought in a public matter or a matter of public right, the people at large are the real party, and any citizen is entitled to a writ of mandamus to enforce the performance of a public duty.\\\" This is likely the true rule, as otherwise often the public interest would deeply suffer. On this theory this Court has entertained mamdctmus to compel building of a bridge, a court-house, and to declare the result of an election upon change of county seat. Doolittle v. County Court, 28 W. Va. 158; Brown v. Randolph County, 45 Id. 727; State v. County Court, 47 Id. 672; Morgan v. Wetzel County, 53 Id. 372, (44 S. E. 182). Though not cases of mam-damns, as showing that citizens have such interest as enables them to prosecute proper proceedings in public matters, I refer to Osborne v. Staley, 5 W. Va. 85; Hamilton v. County Court, 38 Id. 71, and citations; Welch v. County Court, 29 Id. 63; Davis v. Brown, 46 Id. 716.\\nConceding the right of citizens, taxpayers and voters to judicial process to defend or promote the public weal or interest, still what is the public interest in this case that is to be defended, promoted, established? The election over; no recount asked; no objection made to its result; no future public interest to be advanced by interference with it. The petition says the proposition to issue bonds was defeated; and it is not proposed to contest that result. That is ended. The petition proposes to do nothing whatever to effect that election or any right dependent upon or arising from it. That petition sets forth only one purpose in view. It says that in certain precincts frauds and irregularities were committed by the officers of the election, in conducting it and declaring its result, that persons were recorded as voting who did not vote, and that the officers \\\"stuffed\\\" and \\\"padded\\\" the ballot-boxes, as would be shown by the poll-books; and that inspection and copies of them were sought in order to know whether such officers had honestly and lawfully performed their duties, and for the purpose of instituting criminal prosecutions against them, if the disclosure of the facts should warrant it. It would be a fishing writ. Will mandamus go for this purpose? I -repeat the rule that mandamus is restricted \\\"to cases where the relator is deprived of some pecuniary right.\\\" Where is the pecuniary interest in the plaintiffs or the public? \\\"Mandamus is applied to the protection of civil rights.\\\" Merrill on Mandamus, section 61. No criminal warrant is asked. In People v. Masonic, &c., 98 Ill. 635, a mandamus was asked to compel officers of a Masonic Society to declare the adoption of an amendment to the constitution of the body. The case holds: \\\"Pecuniary interest must be involved. Mandamus will not be awarded to a party until he shows that he has .a clear legal right, which is denied, and that the denial of the right affects his pecuniary interest. It will not be granted to settle a mere fancy question.\\\" In State v. St. Louis Paint Co. 21 Mo. App. 526, it is held that every application for this writ must state two essential requisites; first, the legal duty imposed upon the defendant to do the thing asked; second, a pecuniary interest not to be compensated in damages. The individuals must have this interest; or the public must have a substantial, actual right in having the act done. What interest had the public in the inspection, or in having copies? I have seen no case holding that mandamus will issue merely and only to glean evidence for criminal prosecution. Equity will not entertain a bill of discovery to do so.\\nIt becomes pertinent in this connection to see how far the right to inspect records goes. It is virtually claimed by the plaintiffs to be unlimited. True, the words of our statute are broad in saying that records shall \\\"be open to the inspection of any persons,\\\" and so State v. Long, 37 W. Va. 266 says, using the words of the statute. As Clark had a plain right of inspection for business, it was not necessary to go far in interpretation of the law. Does the statute mean that inspection is for every one for pastime, whim, fancy ? Is the right of inspection to be granted under all circumstances? An Alabama statute said: \\\"The records of the judge of probate's office must be free for examination of all persons.'' It was held that the right was \\\"limited to any person having an interest,\\\" and that it did not confer the right on those engaged in negotiating loans on mortgage to make abstracts to all land in the county for future business use. Randolph v. State, 60 Am. D. 761. Two former casse there cited held that examination was \\\"not the unqualified right of every citizen and the individual who claims access to the records can properly be required to show that he has an interest in 'the documents, and that the inspection is for a legitimate purnose. The qualification of the rule is that no person can demand the right save those who have an interest in the record.\\\" The right to make abstracts or copies for speculative purposes in compiling abstracts was denied in Weber v. Worth, 43 Mich. 534, (38 Am. R. 213). The right is not given \\\"to all indiscriminately who may, for curiosity or otherwise, desire the same, but is limited to those who have some interest therein.\\\" In Cormack v. Wolcott, 37 Kan. 391, the statute reads: \\\"All books required to be in their offices shall be open for the examination of any person.\\\" The court said that the common law gave inspection to only those having interest in the land or subject of the record. 4 Am. & Eng. Ency. L. 182, (2nd c-d.) The court said the inspection must be under the eye of the clerk and under reasonable rules made by him. \\\"The right claimed by the plaintiff for himself and every other person to inspect the records at will, and make copies, must of equal necessity be governed. If the right exists, it exists for all.\\\" The court said that under an unlimited right the office might be clogged, the use of the books engrossed for simply private ends, and they diverted from the public use designed. Eight to make general abstracts of title for business was denied. The Colorado statute said the books \\\"shall be open for the examination for all persons.\\\" The court refused mandamus to allow abstract makers to abstract the entire land titles of the county for sale. \\\"It matters not that relators require no aid from him; for he is charged with the safe keeping and preservation of the records, and is responsible for their truthfulness and freedom from mutilation. A single stroke of the pen, the erasure or addition of a single word, may change the character of a eon.Yeyan.ee, or destroy the most valuable property right. The clerk is unfaithful to his trust if he allows one of the record books to remain for an instant in the hand of a stranger out of his sight.\\\" Even where a statute gave a stockholder of a corporation right to examine its records, in mandamus it was required to plead and prove some property right involved, that some controversy existed, or that som\\u00e9 specific and valuable interest was in question, to settle which an inspection of the documents was necessary. Ellsworth, v. Borwart, 58 Am. St. R. 427.\\n\\\"Any person who has an existing interest in information to be obtained from public records in any county office has a right to make an examination to the extent of his interest,\\\" under an act saying that records \\\"shall be open for the examination for any person.\\\" Boylan v. Warren, 7 Am. St. R. 551. See 60 Am. R. 764, full note; 24 Am. & Eng: Ency. L., (2nd. ed). 183. Under the law, common and statute, I think we may say, that when it comes to the test, under strict law, when mandamus is asked to compel inspection, the plaintiff must have some legal right to have inspection for legitimate use. Mechen on Public Officers so regards the authorities. In section 687 we read: \\\"It is the duty of the clerk to permit persons having a present or prospective interest in the particular public records in his office to inspect and copy the same at reasonable times and under reasonable regulations. The performance of this duty may be enforced by mandamusThe case of Barber v. West Jersey, 53 N. J. Eq. 158, holds that \\\"every person has right of access to the public records of the county clerk's office, without payment of fees, to examine any title in which he is interested, subject to reasonable rules and regulations.\\\" It held that an abstracting company had right of inspection to examine title to a \\\"particular piece of property, but not to occupy the office to make a general abstract.\\\"\\nI think that the plaintiffs as citizens and taxpayers had right to inspection, it not appearing but that they desired a recount to change the result. I think people have right to inspect public papers, unless it appears that their object is an improper one, for whim or scandal, as the publication of indecent evidence in a divorce suit tending to degrade the parties and injure public morals, or any other improper or useless purpose. But when it does so appear, then there is no right of inspection. How far a clerk may inquire into the purpose we need not say. I have said SO' much on this point because State v. Long, 37 W. Va. 266, is relied upon as giving unlimited right of inspection, and because that case does not enter far into the subject, and I have thought the decisions here given may be of public use. What interest have the plaintiffs on which to predicate the demand? What object which the public interest or law can realize to sub-serve? \\\"The judicial records of the state should always be accessible to the people for all proper purposes, under reasonable restrictions as to the time and mode of examining the same, but no one has a right to examine or obtain copies from mere curiosity, or for the purpose of creating public scandal.\\\" In re Caswell, 49 Am. St. R. 814. I am not for a moment to be taken to intimate the slightest impeachment of the honest public motive of the worthy men who seek this mandamus. I do not doubt their motive; but I am stating legal principles as I see them.\\nAnd it is a fixed rule that if there be other remedy to accomplish the end sought, mandamus does not lie. The only end stated is to gather evidence for criminal prosecution. The grand jury is the medium of that end. It can send for persons and papers, and bring offenders to justice. Citizens cannot meddle in prosecutions save in the appointed modes, by becoming prosecutors or informants before grand juries or by recourse to criminal process. We do not think they can use mandamus for such purpose.\\nJudgement affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"8637730\", \"name\": \"Uhl v. Ohio River Railroad Company\", \"name_abbreviation\": \"Uhl v. Ohio River Railroad\", \"decision_date\": \"1902-03-08\", \"docket_number\": \"\", \"first_page\": \"106\", \"last_page\": \"121\", \"citations\": \"51 W. Va. 106\", \"volume\": \"51\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"\", \"parties\": \"Uhl v. Ohio River Railroad Company.\", \"head_matter\": \"CHARLESTON.\\nUhl v. Ohio River Railroad Company.\\nSubmitted June 6, 1901.\\nDecided March 8, 1902.\\n1. Weittbn Evidence \\u2014 Oral Declarations not Received.\\nIf a writing is not ambiguous, it must speak for tself by its words, without aid of any oral evidence; but if it is ambiguous, oral evidence is admissible to show the occasion of the contract, the situation of the parties, the circumstances surrounding them, their subsequent acts in executing the contract, in order to show their intention in making it; but evidence can not be received to show their declarations, conversations or in-terlocutions before or at the execution of the contract, (pp. 109, 110).\\n2. Right of Way \\u2014 Passes Easement Only.\\nThe words \\u201cright of way\\u201d in a grant to a railroad company, taken alone,, mean an easement only, and do not pass the very land itself, (p. 112).\\n3. Raileoad Risht of Way \\u2014 Buildings\\u2014Easement.\\nAn agreement grants to a railroad company \\u201cth\\u00e9 full and free right of way of the width of 50 feet * * * in, upon and through the lands of the said Uhl * * * . which right of way is hereby granted and conveyed, for the construction, building and use of the road of said company.\\u201d It also says, \\u201cAnd the said Uhl also hereby covenants and agrees to execute and acknowledge in due form of law, when required by said company, a deed conveying to said company in fee simple the land here-inbefore described.\\u201d Such agreement conveys only a right of way, an easement in fee simple, not the land itself and the oil in it. (p. 113).\\n4. Easement \\u2014 Conveyance\\u2014Covenant\\u2014Estate.\\nThe covenant in this agreement to execute a deed conveying the land in fee simple is a dependent covenant, and the estate or interest conveyed by the agreement being limited to the right of way, which is an incorporeal hereditament, the operation of said covenant is necessarily restricted and limited by the granting clause, and does not require the conveyance of a greater estate, (p. 114).\\n5. Conveyance \\u2014 Covenant\\u2014Deed.\\nThe covenant in a deed for further assurance means a covenant to execute a deed for further and better assurance of the estate passed in the granting clause, and does not enlarge that estate, (p. 115).\\n6. Deeds \\u2014 Construction\\u2014Intention.\\n. In the construction of deeds, as well as wills, the rule nowadays is that the intention of the grantor controls, and technical words of legal import must yield to plain intent, and the whole instrument, not merely and separately disjointed parts, is to be considered, (p. 116).\\nAppeal from Circuit Court;, Wood County.\\nAction by C. D. Ubl against the Ohio River Railroad Company and others. From an order refusing to dissolve an injunetion, defendant company appeals!\\nAffirmed.\\nI\\u00ed. P. CAMDEN and W. P. Hubbard, for appellant.\\nMoCluer & MoCluer and C. D. Foreer, for appellee.\", \"word_count\": \"6531\", \"char_count\": \"36027\", \"text\": \"Brannon, Judge:\\nAn agreement was made between Charles D. Uhl and The Wheeling, Parkersburg & Charleston Eailroad Company, the name of which was changed to The Ohio Eiver Eailroad Company, which agreement reads as follows: \\\"This agreement made this 13th day of April, 1882, between Charles D. Uhl, of the conntj'- of Wood, West Virginia, of the first part, and The Wheeling, Parkersburg & Charleston Eailway Company, a corporation under the laws of West Virginia, of the second part, Witnesseth: That whereas the said railway company proposes to construct and build its road through the said county of Wood, now in consideration of the advantages which said road will be to the said party of the first part, and to his propert}^ and of the premises, and the further consideration that the said' railroad company will make a good roadway or crossing where the private road of said Uhl crosses said railroad, and also put in or-build cattle stops wherever said railroad conies from one field to another, the said Charles D. Uhl does hereby grant and convey unto the said Wheeling, Parkersburg and Charleston Eailway Company the full and free right of way of the width of fifty feet with necessary grounds for cuts and fills for the road of said company in, upon and through the lands of the said Uhl, upon which he now resides, described substantially as follows, to-wit: Being the line surveyed by engineer Wharton which right of way is hereby granted and conveyed for the construction, building and use of. the road of said company. And the said Uhl also -hereby covenants and agrees to execute and acknowledge in duo form of law when required by said company, a deed conveying to said company in fee simple the land hereinbefore described. It is also agreed that said Charles D. Uhl hereby also grants and conveys to said railroad company the right of way, upon the same conditions'and with the same restrictions, through the tract of land containing 28 or 30 acres above the one upon which he resides, and adjoining the lands of John E. Uhl and John F. Creel, it being understood that the same conditions applies to this right of way as to the one on the land upon which he now resides.-\\\" Later the Ohio Eiver Eail-road Company made to Samuel Logan a lease of the said fifty foot strip of land for the purpose of boring for oil, and Logan erected a derrick for that purpose, when Uhl obtained an injunction in the circuit court of Wood County against Logan's operations, and the judge of that court, having refused to dissolve the injunction, the railroad company has appealed the case to this Court.\\nThe railroad company contends that the agreement confers upon it a right of absolute fee simple estate in the very corpus or body of the soil of the fifty foot strip, the very land itself, carrying with it all minerals, and consequently the right to extract oil from it, just as Uhl may do on his remaining land, and the company demanded of him a conveyance carrying the very land itself. On the other hand, Uhl contends that he conferred on the company only an easement, a right to construct and operate upon the land a railroad, and he denies the right to the company, or to any one claiming under its right, to carry on upon the land the business of the production of oil, and thereby damage his remaining land irreparably by draining from it the oil in it. This controversy thus calls for the construction of said agreement. If a written contract is not ambiguous, it speaks for itself, and courts must carry its written words into effect; but if it is ambiguous, we may consider the circumstances surrounding the parties at the time they executed it, their situation, the nature of the contract which they were making as to its purpose, in order to enable us to say what that situation or occasion called for, what was their intention, so that we may glean the intention of the parties, as that actual intention is the criterion, the key to unlock the meaning of the contract. Knowlton v. Campbell, 37 S. E. 581, 48 W. Va. 294; 1 Beach, Mod. Law of Contracts, 702; Nash v. Towne, 5 Wall. 687. This agreement is not, in a legal point of view, ambiguous. Its very face says that the motive and purpose inspiring it, the occasion for its execution, was the obtaining by the company of right of passage for a railroad through Uhl's farm, and to accomplish this purpose a \\\"right of way\\\" was granted \\\"in, upon and through lands of said Uhl.\\\" This is the core of the writing, its essence, its grant, and it speaks a purpose to concede simply a right of way, an easement, a passage for the road. It does not imply a grant of the very land itself, but only a right of way, \\\"in, upon and through the lands\\\" of Uhl. Those prepositions \\\"in,\\\" \\\"upon,\\\" \\\"through,\\\" speak this intent to concede mere passage. If the intent were to grant the land to all intents, why did not the paper do so then by the nse of the word \\\"land\\\" in connection with the word \\\"grant\\\" ? And treating it as an executory agreement, why did it not use the word \\\"land\\\" in its essential part P Why did it use the words \\\"right of way\\\" ? Take the words, \\\"right of way,\\\" prima facie, they legally imply only an easement. To give them other meaning, there must be other words so showing. True, when we speak incidentally of \\\"right of way,\\\" we may mean the land on which the right of way exists; but in a grant to a railroad it means only the easement. As this is strongly contested by able counsel in the elaborate argument which has taken place in this hotly contested case, I have for the second time examined this question, and I am confirmed in such opinion. \\\"The words Tight of way' in a grant describe the tenure, not the land granted.\\\" Atlantic & Pacific R. Co. v. Lesure, 37 Am. & Eng. Railroad Cas. 368. A deed conveyed to a railroad company a \\\"certain piece of land described as follows, to-wit: The right of way for a railroad running a strip of -land forty feet wide and nine hundred and fifty-two feet in length,\\\" with full covenant of warranty, and it was held that the deed conveyed an easement, not a fee in the land. Jones v. Van Bochove, 103 Mich. 98, 1 Am. & Eng. Railroad Cas. Annotated 664. \\\" CA right of way,' in its legaly and generally accepted meaning in reference to a railway, is a mere easement in the land of others obtained by condemnation or purchase.\\\" Williams v. W. N. Ry. Co., 50 Wis. 71, 5 Am. & Eng. Railroad Cas. 290; Calcasieu v. Harris, 43 Am. & Eng. Railroad Cas., Annotated, 570. In the first case cited the court said: \\\"It would be using the term in an usual sence by applying it to an absolute purchase of the fee simple of lands to be used for railroad purposes.\\\"- A railroad company owning land conveyed it \\\"reserving and excepting a strip of land :1! to be used for a right of way or other railroad purposes.\\\" Held, that the deed passed the whole fee to the purchaser, and that the company reserved only a right of way. Biles v. Tacoma R. Co., 5 Wash. 509. A deed said \\\"do grant and convey to said R. R. Co. the following piece or tract of land for the construction of said road; to have and to hold to said company forever,\\\" and it was held to convey \\\"a right of way simply,\\\" not a fee. Barlow v. C. R. I. Co., 29 Iowa 276. In Vermilya v. C. M. & St. P. R. Co., 66 Iowa 606, the court said that the words \\\"right of way\\\" meant an easement only. In Ottumwa v. McWilliams, 11 Iowa \\u2014 , an agreement to convey a strip of land in fee for railroad purposes was held to convey an easement only. A deed granted to a railroad company \\\"the right of way for so much of said railroad, being eighty feet wide, as may pass through the following land,\\\" was held to convey merely an easement, an incorporeal hereditament, the fee remaining in the grantor. Cincinnati, etc. Co. v. Geisel, 119 Ind. 77. \\\"A grant of a 'way' or the privilege of a highway, does not convey the soil or any interest in it.\\\" Jones on Basements s. 208. \\\"A-grant of right of way to a railroad company is the grant of an easement merely, and the fee remains in the grantor.\\\" Idem. s. 211. \\\"The grant of a right of way does not convey the soil.\\\" Home v. Richards, 4 Call 441. ' \\\"If the deed does not in terms convey the land or soil covered by the way, but merely a way in connection with the land conveyed, the grantee takes no interest or estate in the soil of such way.\\\" Jones on Basements s. 207. \\\"The conveyance of a right of way conveys an easement only.\\\" 2 Lewis, Emminent Dom., s. 291.\\nAs antagonizing this position as to the effect of the words \\\"right of way\\\" we are cited the case of I. P. C. Ry. Co. v. Rayl, 69 Ind. 429, and Chicago, T. & M. Ry. Co. v. Fitterington, 31 Am. St. R. 39, and Keener v. U. P. Ry. Co., 31 Fed. 126. These cases do not apply. No question arose in them as to the real title conferred, or the right to take minerals. In the first case the question was the width of the right of way; in the second, whether the title passed so as to be beyond defeasance by the condition of the deed; and in the third, as to whether the land or only the track should be taxed to the company. In the second case we do not know the words of grant or the subject granted, and the third was not a grant, but a condemnation. It is said that we announced contrary law in Watts v. Ry. Co., 39 W. Va. p. 204, by simply saying, \\\"The grant in this case was of the fee of the land.\\\" So it was there, the land itself being granted, but not in this case. This was said in speaking of damages to the owner's private way. It did not involve the right of the railroad 'Company to take oil or other minerals. Whether when a grant is in words a grant of the very land itself for the construction of a railroad, the company can take oil or other minerals not necessary in the operation of the road, is not involved in this case, and we do not decide that point, though speaking for myself, I think it cannot do so, to the prejudice of the grantor. In this case the question is whether the comjjany can, under a deed granting, not the land, but a right of way, take oil to the harm of the grantor's other land. It will be noted that most of the deeds above referred to contained language of actual grant of actual land, and yet the presence of the words \\\"right of way,\\\" or the declaration that the grant was for railroad purposes, induced the courts to hold that they conferred only an easement. The agreement in this case does not grant land in its granting clause, but only right of way.\\nAnother very influential consideration is that the agreement declares that the purpose of the concession is for the construction of a railroad, which shows that merely an easement was intended. Where the granting clause declares the purpose of the grant to be a right of way for a railroad, the deed passes an easement only, though it be in the usual form of warranty deed. J ones on Easement s. 212. Where the deed grants all the grantor's right, title and interest to land, \\\"for use of a plan!?; road.\\\" only an easement passes. Robinson v. Missisquoi R. Co., 59 Vt. 426, 30 Am. & Eng. Railroad Cas. 299. So where the conveyance was for a park. Flaten v. City, 51 Minn. 518. A grant of right of way for \\\"all purposes connected with the construction, use and occupation of said railway,\\\" was held not to pass a fee or give right to take sand'to build a roundhouse. Vermilya v. Railroad, 55 Am. R. 279, 66 Iowa 606.\\nThus, it seems clear that the face of the agreement plainly speaks the grant of a mere easement, without ambiguity. But suppose we could say that the instrument is ambiguous. When we place ourselves in the situation of the parties, and reflect that they met only to contract for a right of way, that such was the sole design of the company, that the paper so declares on its face, that such was the moving purpose, that the company did not dream of acquiring oil, or of using the land in the oil business, we cannot hesitate for a moment to conclude that merely a right of way was in the contemplation of the parties. We need no oral evidence for this; the writing itself so speaks. The law allows, requires us to take into consideration what all these circumstances show must have been the purpose of the parties. Nash v. Towne, 5 Wall. 689; Jones on Easements s. 289; Barlow v. Chicago, etc. Co., 29 Iowa 276; Robinson v. Missisquoi, 30 Am. & Eng. Railroad Cas. p. 301.\\nBut great and decisive import is given by counsel for the railroad company to the clause whereby \\\"Uhl agreed to \\\"execute in due farm of law a deed conveying to said company in fee simple the land hereinbefore described.\\\"\\nNow, this is to be explained on two plausible theories consistent with our holding. One is that the parties regarded the instrument as only a preliminary executory agreement, and contemplated a formal deed to more fully describe the strip of land, or with other consistent provisions. This is shown by the fact that they gave the name of \\\"agreement\\\" to the paper, and also by the words \\\"in due form of law.\\\" So viewing it, we would say that this provision looked forward to a deed for just what the agreement had already in its vital clause stipulated for. We would not make this clause enlarge the estate when both clauses can stand together in harmony. If there should be a future deed, it is true it would have to be in fee simple, that is, convey a fee in an easement, a right of way -in fee simple, an incorporeal hereditament; for \\\"a fee simple may be had in incorporeal as well as in corporeal hereditaments,\\\" by elemantary law. 1 Wash. Real Prop. 82. This document contains the word \\\"grant,\\\" and is all sufficient to pass title; but it was thought that a more formal instrument might in time be wanted, and it was for caution put in, that is the clause in question, as is frequently done. In conveyancing it is common, and is called a covenant for further assurance. The second theory is that if this paper were viewed as a conveyance, not simply an execu-tory instrument, then this clause would be regarded as the old common law covenant of further assurance, meaning that if any further deed should be needed to further or better assure what the instrument had already, in its granting clause, conferred, by reason of some informality, it would be executed. Discussing this covenant Rawle on Covenant for Title, 104, says that the purchaser's right under it may depend on the estate conveyed, and that when the estate conveyed is a limited estate, this covenant will not require the conveyance of a greater estate. Thus, as the prior clause, the vital operative one, had only given a right of way, this clause only contemplated a further deed for that. Our Code, chapter 72, section 18, limits such a covenant to the land conveyed in the granting clause. This is consistent with the well known law that a warranty is a dependent covenant, and applies only to the estate granted, and cannot increase it. Hull v. Hull, 35 W. Va. 155. We cannot say that one clause concedes one estate, the other another. If the intention was to pass the corpus, why not make the instrument do it then? Covenant for further assurance apply only to the estate granted. We must look at the whole paper to see what it means and cannot disregard the first clause passing only a right of way, and make the other clause pass the soil and all minerals in it. In deeds the .first clause prevails generally over the later, and surely, a later clause of more further assurance would not emasculate and predominate over the prior granting clause, but just the reverse. As to wills the rule has ever been that regardless of form or orderly parts, we must look at the real intention; but this has not been the case in the- construction of deeds. Deeds have orderly parts, technical words of precise legal signification, and in times gone by those parts and words, and the strict rule of construction of them, have been rigorously observed often defeating the manifest intention. Modern construction, however, has loaned towards the intention, overriding mere form and technical words, and nowadays it may be said that the intention must rule the construction in deeds as well as in wills. Humphrey v. Foster, 13 Grat. 633; Mauzy v. Mauzy, 79 Va. 537; Lindsey v. Eckels, (Va. 1) 901, show this to be the rule in Virginia; and Hurst v. Hurst, 7 W. Va. 289; and Goldsmith v. Goldsmith, 46 Id. 426; McDougal v. Musgrave, 46 Id. 509; and Bank of Berkeley Springs v. Green, 45 Id. 171, 174, show this to be the rule in West Virginia. The Supreme Court of New Hampshire in Webster v. Atkinson, 4 N. H. 21, says: \\\"The construction of a deed must be made upon the entire instrument, and be such that the whole deed and every part of it may take effect, and one part must be construed by another, so that all parts may agree.\\\" Such is the general law of the country. 1 Devlin, Deeds, s. 836; Bodine v. Arthur, 91 Ky. 53, 34 Am. St. R. 162; Bassett v. Budlong, 77 Mich. 338, 18 Am. St. R. 404. For instance, deeds generally require the word \\\"grant,\\\" or the words \\\"bargain and sell,\\\" or some technical word suitable to the character of the conveyance; such is formal conveyancing; but the word \\\"convey\\\" is now held to be equivalent to the word \\\"grant\\\" even at common law. Chapman v. Charte, 46 W. Va. 769; Lambert v. Smith, 9 Oregon 185; Patterson v. Carneal, 3 A. K. Marshall 618, 13 Am. Dec. 208; 4 Kent, Com. 491; 2 Lomax Dig. 81; 2 Minor's Inst. 780. Kent there says that any word to show intention will do. See Flaten v. City, 51 Minn. 521. As before stated., we must look at the whole paper, and not allow the words \\\"fee simple\\\" to defeat the plain intention spoken by the recital of the deed as to the occasion and aim of the deed, the construction of a railroad, and the language of the clause granting right of way. If. there were repugnancy in the parts of the instrument specified above, we would be compelled by law to make \\\"repugnant words yield to the purpose of the grant, where such purpose is clearly ascertained' from the premises of the deed.\\\" Goldsmith v. Goldsmith, 46 W. Va. 426. \\\"The effect of language in. a deed is to be gathered from the whole of it, not disjointed parts, so as to give effect to the whole. The intention of the grantor, as derived from the deed itself, should be sought after, and if discovered, should be carried into effect, if it can be done consistently with rules of law.\\\" Allemong v. Gray, 92 Va. 216; Hurst v. Hurst, 7 W. Va. 289; 17 Am. & Eng. Ency. L. (2 Ed.) 7.\\nBut in fact there is not the slightest conflict between the clauses in question, and this for the reason that reading the words \\\"fee simple\\\" with oth\\u00e9r parts .of the paper, they mean a \\u2022conveyance of a fee simple right, an easement in fee simple, an incorporeal fee.\\nThe authorities above given are ample to sustain this decision ; but we could dispense with them, and cite one single case as conclusively and fully supporting us, because it is a decision of our highest court upon an exactly similar deed to the same company. Pugh made a similar deed, or agreement, and the railroad company leased its right of way land to Logan, for the purpose of boring for oil, and he was boring for oil when Lockwood, to whom the Pugh land had been leased for oil purposes, asked an injunction against Logan in the Circuit Court of the United States for the District of West Virginia, to restrain Logan from operating for oil upon the right of way land, and thereby draining the adjoining land. The circuit court denied the injunction, and the case went to the Circuit Court of Appeals for the Fourth Circuit, which reversed the circuit court, and held that the deed intended to pass only a right of way, and that the company took only an easement in the land; that the agreement having been prepared by the railroad company, any doubt as to its true meaning should bo solved adversely to the company, and not be construed most favorably to the grantee under the general rule; and the covenant to execute a deed conveying the land in fee simple, being a dependant covenant, and the estate or interest conveyed by the agieement being limited to an incorporeal hereditament, the operation of said covenant is necessarily restricted by the granting clause, and cannot require the conveyance of a greater estate. Lockwood v. Ohio R. Co., 103 Fed. R. 243. Application was made to the United States Supreme Court for a certiorari, but it was refused. 180 U. S. 637.\\nIt is hardly worth while to refer to the argument that our statute law governs the case. The form of deed given in section 1, chapter 72, Code, is referred to, together with the provision of section 2, that \\\"every such deed conveying land shall unless an exception be made therein, be construed to include all the estate, right, title and interest whatever, both at law and in equity, of the grantor in or to such land/' That is so, provided the deed does convey the land itself; but if it convey only an easement, or other particular, limited or restricted estate, it is not so. The word \\\"grant\\\" in the form referred to must have a thing for it to operate upon, a thing in the objective case, and its operation is limited to the thing specified as granted, the thing shown by the whole, deed to have been intended to be granted, and if that is only a right of way, the word \\\"grant\\\" passes that only.\\nThis construction takes from the company nothing that justly belongs to it. Its right of way is full and complete. Practically its fee simple right of wajr shuts out Uhl, because it has sole and exclusive right to actual, physical possession for all railroad purposes, with which Uhl can in no manner interfere. Jackson v. Rutland, etc. 60 Am. Dec. 246; Troy & Boston R. Co. v. Potter, 1 Am. R. 325; Jones on Easements s. 393. But the company and Logan want to divert Uhl's grant to a purpose foreign to its use for railroad purposes. Authority holds that a railroad company cannot use its right of way for purpose foreign to its legitimate corporate business, to carry on other business. Jones on Easements s. 382. I do not intend to discuss or define on this point, and will only say that though strangers could not, but only the State could, object to a misuse of the charter to do business ultra viras, it is plain and just that Uhl, the owner of the body of the land covered by the right of way, and the full owner of the adjoining land, can object to a use of tbe right of way land for oil purposes, which, use will entail irreparable damage upon him by drainage of the oil from his adjoining land. He has such an interest in the proper use of the railroad strip as will enable him to avert such injury. Therefore, we affirm the order overruling the motion to dissolve the injunction, and remand the case for further proper proceedings.\\nAffirmed.\"}"
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+"{\"id\": \"8637984\", \"name\": \"Butler v. Thompson\", \"name_abbreviation\": \"Butler v. Thompson\", \"decision_date\": \"1902-12-20\", \"docket_number\": \"\", \"first_page\": \"311\", \"last_page\": \"317\", \"citations\": \"52 W. Va. 311\", \"volume\": \"52\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T18:27:07.503678+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Butler v. Thompson.\", \"head_matter\": \"CHARLESTON.\\nButler v. Thompson.\\nSubmitted September 9, 1902.\\nDecided December 20, 1902.\\n1. Decree \\u2014 New Tria\\\\ \\u2014 Reversal-Opinion.\\nWhere the court reverses a decree upon the merits and re mands the cause to the circuit court \\u201cfor. further proceedings therein to he had according to the rules and principles stated in the written opinion\\u201d filed in the cause, the findings of fact set forth in the opinion are binding upon the court1 below, and that court cannot permit new pleadings and: further evidence to be filed, touching any matter involved in the decision of the appellate court, but must enter a decree in accordance with the opinion, (p. 313).\\n2. Appellate Court \\u2014 Decisions\\u2014Appeal.\\nIf, in such case, the court below allows the cause to be reopened by new pleadings and evidence, and pronounces a decree contrary to the decision of the appellate court, the party aggrieved: thereby may appeal from the decree and have the same set aside and, on the second appeal, a mandate -will go to the court below to enter a decree in conformity with the decision on the first appeal, (p. 315).\\nAppeal from Circuit Court, Tucker County.\\nBill by I. P. Butler against J. P. Thompson and others. Decree for defendants, and plaintiff, appeals.\\nReversed.\\nCunningi-iam & Stallings, for appellant.\\nW. B. Maxwell and C. 0. Steieby, for appellees.\", \"word_count\": \"2390\", \"char_count\": \"13598\", \"text\": \"POEEENBARGER, JUDGE:\\nThis is a second appeal in the chancery cause of Butler v. Thompson, commenced in 1892, and, as decided by this Court, reported in 45 W. Va. 660, where a full statement of the matters involved and proceedings had may be seen. The suit was brought for the purpose of setting aside conveyances of real and personal property, as having been made by Thompson with intent to hinder, delay and defraud his creditors, and especially the plaintiff, I. P: Butler, who, at the time of the institution of said chancery cause, had a judgment against Thompson for four hundred and ten dollars and sixty cents. J. P. Thompson, the debtor, and P. E. Thompson, the alleged purchaser of the property in controversy, filed their answers to the bill, and depositions were taken and filed on their behalf. On the hearing upon the merits, the circuit court dismissed the bill. On appeal, this Court reversed the decree of the circuit court, dismissing the bill, and remanded the cause \\\"for further proceedings therein to be had, according to the rules and principles stated in the written' opinion aforesaid, and further, according to the rules and principles governing courts of equity.\\\" After the cause went back to the circuit court, the defendant, J. P. Thompson, was permitted to file an amended answer and depositions in his behalf, after which another decree was entered by the circuit court, again dismissing the bill.\\nThe former decision of this Court was clearly an adjudication upon the merits in favor of the plaintiff and it could not be reheard, of, in any way, altered by the circuit court. It was an adjudication upon tlie facts as well as upon the pleadings, and, therefore, covered the entire controversy. -Instead of accepting it as final and unalterable, as it was bound in law to do, the circuit court permitted the whole matter to be reopened, and additional pleadings and evidence to be filed, and entered a decree in exact conformity with its former decree which this Court had reversed and set aside. The very core of the controversy in this Court on the former appeal was the question, whether the deed made by Thompson was invalid, as having been made to defraud his creditors. It was really the hnly question decided by this Court, although the decree entered here did not say so in express terms. It set aside, reversed and annulled the decree of the circuit court and remanded the cause, without, in express terms, setting the deed aside. Evidently, the court below has proceeded upon the erroneous view that, as this Court did not expressly decree the 'deed to he fraudulent, set it aside and charge the plaintiff's debt upon the property, there was no adjudication as to those matters by this Court, and they were left open for adjudication by the circuit court. As the validity of the deed was the only real question presented and the decree of the circuit court was reversed, this Court must necessarily have reversed the finding of the court below on that question, and decided against the validity of the deed. If this Court had held the deed good, there could have been no reversal.\\nTire principle governing the case is announced in Koonce v. Doolittle, 48 W. Va. 592, decided long after the decree here complained of was entered, and holding that questions of fact determined in the opinions filed by the judges of this Court, when necessary to the decision of cases, are res adjucHcaia and not opear for review and readjudication by the circuit court in the further progress of litigation. The correctness of this decision is beyond question. The principle is as old as the law and rests not only upon reasons of sound public policy, demanding a cessatioir of a controversy at the end of oire full and fair trial, but upoir principles of logic as well. . Whether the final decision of the court of last resort is right or wrong, it is oin-alterable and must stand. \\\"If an appellate court has ever so erroneously decided that it has jurisdiction of a cause and then proceeds to determine it on its merits, the parties to the cause are bound as res adjudicaba by the decision of the court, that it has jurisdiction as well as by the decision of the court on its merits.\\\" Herman Est., 119, 120. \\\"A case finally decided in the Supreme Court of Appeals, has become res adjud\\u00edcala and is no longer a subject of review in that court.\\\" Camden v. Werninger, 7 W. Va. 528. \\\"The decree of the Supreme- Court of Appeals upon a question, decided by the court below, is final, and irreversible; and upon a second appeal in the cause, the question, decided upon the first appeal, cannot be reviewed.\\\" Henry v. Davis, 13 W. Va. 230. \\\"A fact, which has been directly tried and decided in a court of competent jurisdiction, cannot be controverted again between the same parties, in the same or any other court.\\\" Id. Campbell v. Campbell, 22 Grat. 649; Bank v. Craig, 6 Leigh 399; Hungerford v. Cushing, 8 Wis. 324; Matthews v. Sands, 29 Ala. 136; Miller v. Jones, 29 Ala. 174; Bradford v. Patterson, 1 & 2 Marshall (Ky.) 346.\\nIt is obvious that there is a distinction between decisions that are interlocutory and decisions upon the merits. Only that which has been adjudicated is concluded. Hence; if the only question presented is that of the sufficiency of a declaration, plea, bill, or answer, the court below holding it insufficient and this Court reversing and holding it good, there is no adjudication of questions of fact, ordinarily, because they are not raised nor in condition for determination. But it is well settled that where the facts and their legal effect are determined by the appellate court, by a mere reversal of the decree of the court below, nothing can be done in that court other than the entering up of a decree in accordance with the opinion of the appellate court filed in the cause. 3 Cyc. 486, n 5; Chicago v. Gregsten, 157 Ill. 160; Lynn v. Lynn, 160 Ill. 307; Smith v. Coleman, 59 Ala. 260; Soule v. Dawes, 14 Cal. 248; Whitney v. Traynor, 76 Wis. 628; Investment Co. v. Building Association, 51 Minn. 198; Washington v. Superior Court, 7 Wash. St. 234; Ex parte Story, 12 Peters, 339; Skillern's Exrs. v. May's Exrs. 6 Cranch 267. Most of these cases expressly hold that when there is a reversal of a decree on the merits, and the cause is remanded for further proceedings in conformity with the opinion, there can be no departure by the court below from the findings of the appellate court on questions of fact, and the lower court must be guided by the opinion delivered by the appellate court.\\nBut if we had no precedents directly in point, general prin ciples announced by tbe courts amply sustain the position taken by this Court in Koonce v. Doolittle. \\\"When a supreme court have executed their power in a case before them, and their final decree or judgment requires some further act to be done, it cannot issue an execution, but will send a special mandate to the court below to award it. Whatever was before the court and is disposed of, is considered finally settled. The inferior court is bound by the decree, as the law of the case; and must carry it into execution according to the mandate; they can examine it for no other purpose than execution; or give any other or further relief; or review it upon any matter decided on appeal, for error apparent; or intermeddle with it further than to settle so much as has been remanded. After a mandate, - no rehearing will be granted: and on a subsequent appeal, nothing is brought up but the proceeding subsequent to the mandate.\\\" Sibbald v. United States, 12 Peters 448; Himely v. Rose, 5 Cranch 313; The Santa Maria, 10 Wheat. 431, 442; Mackall v. Richard, 116 U. S. 45; Henry v. Davis, 13 W. Va. 230, 252.\\nIn the effort to sustain the action of the circuit court in re-adjudicating the cause, counsel for appellees rely upon Dait'by v. Henderson, 3 Munf. 115, holding that an appellate court ought not to reverse a judgment without proceeding to give such judgment as the inferior court should have given; and Mantz v. Hendley, 2 Hen. & Munf. 308, holding that a district court ought not merely to reverse the judgment of a county court in general terms, but should proceed to render such judgment as the county court ought to have rendered. Webb v. McNeill, 3 Munf. 184, holding that an order of a superior c'ourt merely reversing a judgment of a county court .on a summary motion, without the entering of a judgment that the plaintiff take nothing by his motion, is not a bar to another motion for the same cause of action, is also relied upon. It is to be observed that all these judgments of reversal were rendered by intermediate courts on appellate proceedings, in which no written opinions were reqtxired to be filed, and that none of the cases were remanded to the lower courts from which they had come into the appellate courts; and further, that these intermediate courts probably had no power to remand to the lower courts for further proceedings, they being courts provided with juries and able to proceed to final determination. Code of 1819, chapter 69, sections 12 and 60. Whether they had power to remand or not is immaterial for it appears that they, did not either remand or enter such judgment as the courts below should have rendered, leaving the whole matter still' pending, undetermined and without adjudication. Here, the decision was by the court of last resort and on the merits, and the cause was remanded for a decree by the lower court in conformity with the decision. -It was not left open and undetermined as in the cases cited. Thus, it is seen that these cases neither support the contention of counsel for appellees nor conflict with the decisions of this Court.\\nRurally, it is said that, if the lower court was without jurisdiction to readjudicate this cause, the decree appealed from is void, and from such a decree no appeal lies, because this Court, in Koon.ce v. 'DooliUU, has determined that mwndanius is the proper remedy in such case. An appeal does-lie from a void decree. McCoy v. Allen, 16 W. Va. 734; Cook v. Dorsey, 38 W. Va. 196; 2 Cyc. 590. A void decree could be vacated by the lower court on. motion at any time. Black on Judg., ss. 297, 307. Although there are at least two modes of proceeding to set aside a void decree, and mcaidamus is an extraordinary legal remedy which, ordinarily, can be had only when there is-no other remedy, our holding that an appeal is the proper remedy in a case like this, is not inconsistent with the decision in Koonce v. DooliUU on the question of remedy, even if the decree be void. Here, there are two matters involved. The court below has refused to comply with the mandate of this Court. To compel it to do so, mandamus is a proper remedy. The other matter is the entry of an erroneous or void decree against the appellant. For the correction of that an appeal is the usual remedy. Both of these matters stood on the record in Koonce v. Doolittle, and a peremptory mcaidamus' went to the lower court, commanding it to enter a decree in conformity with the- decision of this Court, and, incidentally, to correct its own error. Here, the direct and primary purpose -of the proceeding is to set aside the decree entered rather than to compel the court below to enter a proper decree. But, as the appeal gives the court jurisdiction for one purpose, it may go- on and do final and complete justice, as to all matters passed upon by the circuit court; by now ordering sncli decree to be entered. Whitney v. Traynor, 76 Wis. 628. An appellate court has jurisdiction to reverse a decree for want of jurisdiction in the lower court. Freer v. Davis, decided at this term.\\nAs the decree is clearly wrong, it must be reversed.and set aside, and the cause must be remanded to the circuit court with directions to enter a decree setting aside the deed made by J. 1?. Thompson to F. E. Thompson, as to the lot in the town of Davis, known as Lot Ho. 305, and the personal property conveyed by said deed, as to the plaintiff's debt, and subjecting the said property to the pajment thereof, and for further proceedings in conformity with the opinion delivered by this Court on the former appeal, and according to the rules and principles governing courts of equity.\\nFever sect.\"}"
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+"{\"id\": \"8638604\", \"name\": \"State v. Allen\", \"name_abbreviation\": \"State v. Allen\", \"decision_date\": \"1898-04-20\", \"docket_number\": \"\", \"first_page\": \"65\", \"last_page\": \"81\", \"citations\": \"45 W. Va. 65\", \"volume\": \"45\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T19:04:02.646909+00:00\", \"provenance\": \"CAP\", \"judges\": \"(Brannon, President, dissenting.)\", \"parties\": \"State v. Allen.\", \"head_matter\": \"CHARLESTON.\\nState v. Allen.\\n(Brannon, President, dissenting.)\\nSubmitted January 22, 1898\\nDecided April 20, 1898.\\n1. Criminal Law \\u2014 Trial\\u2014Prisoner in Manacles \\u2014 Court's Discre-, tion. I\\nWhile the practice of keeping- a prisoner manacled when on trial before a jury has always been held in disfavor in England, and also in this country, yet the trial court has a discretionary power therein, but a power which should not be exercised under ordinary circumstances, or in any case where the prisoner is not violent and obstreperous, or escape be threatened; and such restraint should not be imposed except in cases of immediate necessity. (p. 68).\\n2. Criminal Law \\u2014 Prisoner in Manacles \\u2014 Record\\u2014Court's Discretion.\\nWhen the record is silent as to whether there was or was not any valid excuse for retaining the irons upon the prisoner during trial, the appellate court will presume that the court below exercised a sound and reasonable discretion in not causing them to be removed, (p. 69). -\\n3. Criminal Law \\u2014 Pleading in Person \\u2014 Felony\\u2014Record.\\nA prisoner indicted for felony should be present in court, and should plead in person, and the record should show that fact. (p. 70).\\n4. Criminal Law \\u2014 Pleading in Person \\u2014 Record.\\nWhen the record shows that such prisoner was led to the bar of the court in the custody of the sheriff, and \\u201cthereupon the prisoner, for plea, says that he is not guilty in manner and form as the state in her indictment \\u00a1against him has alleged, and of this he puts himself upon the country, \\u201d it is sufficiently shown that he pleaded in person. (p. 70).\\n5. CRIMINAL Law \\u2014 Record\\u2014Presence of Prisoner.\\nWhere the record .shows that at the beginning; of the trial in any day\\u2019s proceedings the prisoner was set to the bar in the custody of the sheriff, it will be presumed that he was present during the proceedings in the case the whole day, although it does not show at the close of the day\\u2019s proceeding's that the prisoner was remanded to jail. (p. 71).\\n6. Argument ok Counsel\\u2014 Court\\u2019s Discretion \\u2014 Record.\\nCounsel necessarily have great latitude in the argument of a case, and it is, of course, within the discretion of the court to restrain them; but with this discretion, the appellate court will not interfere, unless it clearly appears from the record that the rights of the prisoner were prejudiced by such line of argument, (p. 74). -\\n7. Instructions \\u2014 Error.\\nWhen an instruction of the court assumes certain things as facts, and is in such shape as to intimate to the jury what the judge believes the evidence to be touching such facts, it is error to give such instruction, although it may propound the law correctly. (p. 75).\\nError to Circuit Court, Wyoming- County.\\nJames R. Allen was convicted of murder, and brings error.\\nReversed.\\nJohn M. McGrath, for plaintiff in error.\\nEdgar P. Rucker, Attorney General, for the State.\", \"word_count\": \"6732\", \"char_count\": \"37787\", \"text\": \"McWhorter, Judge:\\nJames R. Allen, indictedin the circuit court of Wyoming County for the murder of James Harvey Ferguson, other-wiseknown as Dr. James Harvey, was committed, and on the 27th day of March, 1897, the said court rendered judgment on the verdict of the jury, and.sentenced him to be hanged on the 30th day of June, 1897, from which judgment said Allen obtained from this Court a writ of error and super-sedeas, and assigned the following errors:\\n\\\"First. The court erred in setting prisoner to the bar, arraigning him, and putting him upon his trial, manacled with cuffs of iron. Second. The court erred in refusing to permit petitioner to cross-examine witnesses whose affidavits were filed in resistance to petitioner's motion to amend the record so as to show that he was absent from the bar of the court and the court room at the time the demurrer in this case was entered, considered, and overruled. Third. The record in this case does not show whether petitioner's plea of not guilty was pleaded by him in person or by attorney. Fourth. The record does not show the presence of petitioner on the 25th of March, 1897, at the conclusion of the proceedings of that day. Fifth. It does not appear from the record in this case how the twelve jurors who tried this case, or any of them, were selected and tried, or that they, or any of them, were selected from the twenty jurors who were examined and placed in the box. Sixth. It does not appear from therecord that the juror T. F. Shannon, Sr., who signed the verdict of the jury in the case, is one of the jurors sworn for the trial thereof. Seventh. The record does not show that the jury was brought into court on the 24th day of March, 1897, in the custody of the sheriff of the county, or any of his deputies; nor does it show when or how said jury came into court on that day. Eighth. The court erred in permitting improper evidence to go before the jury, as will appear from defendant's bill of exceptions No. 2. Ninth. The court erred in permitting counsel for the state, in his concluding argument before the jury, to make improper statements. See defendant's bill of exceptions No. 3. Tenth. The court erred in giving instructions Nos. 1 and 2 asked for by the State, and in declining and refusing to give to the jury instructions Nos. 4, 6, and 7 asked for by petitioner. Eleventh. The court erred in passing sentence upon petitioner, theie being no judgment of guilty pronounced upon the verdict of the jury in this case. Twelfth. The court erred in pronouncing the death sentence upon this petitioner without having first asked him what, if anything, hehadto say why the court shouldnot proceed to pass the sentence of the law upon him. Thirteenth. The court erred in passing sentence upon this petitioner, because it does not appear that the court had jurisdiction to try the case. The crime, if any was committed, is not shown to have been committed in Wyoming county. The venue has not been proved. Fourteenth. The verdict in this case is manifestly contrary to the law and evi- deuce therein. The court erred in overruling petitioner's motions in arrest of judgment, to set aside the verdict of the jury in this case, and to grant him a new trial.\\\"\\nFirst assignment', \\u2014 the prisoner was set to the bar with iron cttffs upon his wrists: While this practice has always been held in disfavor in England, and also in this country, yet it seems to be a matter largely in the discretion of the court; and I must say that it is a discretion that should not be exercised under ordinary circumstances, or in any case where the prisoner is not violent and obstreperous, or escape be threatened,*and such restraint should not be imposed except in cases of immediate necessity. Whart. Cr. Pl. & Prac. \\u00a7540a. In Lee v. State, 51 Miss., 566, Syl. point 2, it is held that \\\"a prisoner undergoing trial should be free from shackles; but, if the court or sheriff deem them necessary to prevent escape, may order him kept in irons during trial, and this will not be ground for reversal.\\\" In People v. Harrington, 42 Cal., 165, it is held to be error, and the judgment reversed; but in that case the defendants, when arrainged, asked that the irons be removed from their limbs while they were being tried, and \\\"the court refused to order the same to be done, and ruled that they should be tried while in irons, \\u2014 no circumstances or facts being shown to the court why a different rule should be enforced in this case than any other, \\u2014 the court being of opinion that no rights of defendants were violated by being tried in irons without their consent; to which ruling defendants excepted.\\\" In that case the syllabus is as follows: \\\"Any action of the court, during the progress of a trial for felony, which deprives the defendant of a substantial legal right in the premises, or, to his prejudice, to any extent, withholds or abridges a substantial, legal, or constitutional privilege of a defendant, and by him claimed on the trial, is a proper subject-matter of review on appeal. By the common law the prisoner is entitled to appear for trial, upon his own plea of not guilty, free from all manner of shackles or bonds, unless there is danger of his escape. To require a prisoner, during the progress of his trial, to appear and remain with chains and shackles upon his limbs, without evident necessity as a means of securing his presence for judgment, is a violation of the common-law rule, and of the thirteenth section of the criminal practice act.\\\" It will be seen that in this case the defendants asked to have their shackles removed, and the court refused to have it done. To my mind, the true rule on this point is laid down by Justice Bristol in delivering- the opinion of the court in the case of Territory v. Kelly, 2 N. M., 305: \\\"When the record is silent as to whether there was or was not any valid excuse for retaining- the irons upon the prisoner during trial, the appellate court will presume that the court below- exercised a sound and reasonable discretion in refusing to order the irons to be removed.\\\" In the case at bar, however it seems to have been an oversight that the prisoner was brought in manacled; for, the moment the matter was called to the attention of the court, the}- were ordered removed, and were at once removed, in the presence of the jury. And it would seem, too, that the prisoner as well as his counsel, either thought nothing of it, or concluded it would have a tendency to create sympathy in the minds of the jury for the prisoner, as they never mentioned the matter until , the State had rested and the most of defendant's witnesses had been examined, and the defendant himself was being cross-examined as a witness.\\nDefendant, in his brief, says: \\\"Believing the second assignment to be without merit, \\\" and passes on to discuss the third assignment. I quite agree with the defendant as to the second, and after a careful examination of the record, I think his remark would apply just as well to the third. There is no question raised as to the prisoner's personal presence in court at every stage of the trial, except under the said second assignment, and the record shows so conclusively his presence at that time that the said assignment is abandoned. Counsel for appellant cites many authorities to show that the record must show affirmatively, not only that the prisoner was present in person, but that he, in person, putin the plea of not guilty. This we admit to be the law well established, as laid down in Sherry's Case, 9 Leigh, 623, in Sutfin's Case, 22 W. Va., 771, in Younger's Case, 2 W. Va., 579, and numerous other authorities cited. It appears from the record that on the 23d day of March, 1S97, came the State by her attorney, and the prisoner was set to the bar of the couit, in the custody of the sheriff; and the pi'isoner demurred to, and moved the court to quash, the venire facias, which motion was overruled, to which ruling- the prisoner, by counsel, excepted; and the prisoner tendered, and asked leave to file, his special plea in writing-, in the nature of an abatement, to the filing of which the attorney for the State objected, which objection was overruled and the plea filed, and the attorney for the State replied generally thereto and the court proceeding to try the issue on said plea, after hearing the evidence, found for the State, to which ruling of the court the prisoner, by counsel, excepted. Thereupon the prisoner demurred to the indictment, in which the State joined, which the court overuled, and \\\"thereupon the prisoner, for plea, says he is not guilty in manner and form as the State in her indictment against him has alleged, and of this he puts himself upon the country; and the State doth the like.\\\" In Sperry's Case, supra, the record shows that on the 29th day of September, 1837, the accused was led to the bar in custody of the keeper of the jail, and thereupon was arraigned and pleaded, and on his motion the case was continued until the first day of the next term; and on the 27th day of April, 1838, \\\"came as well the attorney for the commonwealth, as the prisoner, by his attorney, and came a jury,\\\" etc. It was held that \\\"an appearance by attorney cannot imply that the prisoner was personally present in court, and therefore the record is deficient in what the law regards as essential to be stated in such a case,\\\" for which error the judgment was reversed. So in all the cases cited either the appearance or plea was by attorney. In the case at bar the prisoner was set to the bar of the court in the custody of the sheriff, which shows clearly his personal presence in court. The record further shows that \\\"the prisoner [not by attorney, but the prisoner,] for plea says he is not guilty.\\\" The prisoner, if the record can be relied upon (and we can look to no other source], speaks for himself, and says he is not guilty, \\u2014 a fact which could not' be more clearly expressed in words.\\nFourth assignment, \\u2014 that \\\"the record does not show the presence of the prisoner on the 25th of March, at the conclusion of the proceeding's of that day:\\\" On that day it appears that the prisoner was set to the bar of the court in the custody of the sheriff. It is claimed that,- because at the conclusion of the day's proceeedings the prisoner was not remanded to jail, he cannot be presumed to have been present during all the day's proceedings. When the record shows his appearance at the beginningof the trial for the day, it must be presumed that he was present all day, at least, when anything was done in his case. The record of his appearance is required but once on each day of his trial, and that in the beginning, before anything is done in the case. Were it otherwise, every time the prisoner had occasion to leave the court room for any purpose, in the custody of the court's officer, including- the recess taken by the court for the noonday meal, as is usual, the record would have to notice the prisoner's absence and his reap-p\\u00e9arance every time. When his personal appearance is entered at the beginning, he must be presumed to be present all the day while his case is being considered.\\nAs to the fifth assignment, it appears from the record that the drawing and summoning of the jury were regular, under the statute providing therefor; and the order impaneling the jury, after entering up the pleadings, says: \\\"Thereupon there was selected, examined and placed in the box, in the manner prescribed by law, twenty qualified jurors; and the prisoner moved the court to quash the ven-ire facias and array thus formed, which motion was overruled by the court, to which ruling of the court the prisoner excepted, and asked that said exceptions be saved to him. Thereupon the attorney for the State struck two jurors from said panel, and the prisoner, by counsel, struck six jurors from said panel, and the prisoner moved to quash said panel, which motion was 'overruled by the court; and the prisoner excepted to the ruling of the court, and asked that said exceptions be saved to him. Thereupon E. E. Cook C. F. Smoot, Elihu Green, W. H. H. Stewart, I. F. Cook,.Elisha Brown, Lee Bailey, Lewis Bailey, Dell Cook, J. R. C. Poe, T. F. Shannon, and J. H. Cozort were impaneled, selected, tried and sworn, in the manner prescribed by law, to well and truly try and true deliverance make between the State of West Virginia and James R. Allen, the prisoner at the bar, whom they should have in charge, and a true verdict render according to the evidence,\\\" etc. It will be seen that the prosecuting attorney first struck off two from the panel of twenty jurors in the box, and then the accused struck off six, as provided in section 3, chapter 159, Code; thus leaving the twelve jurors sworn.\\nSixth, \\u2014 that the verdict was signed, not by T. F. Shannon, the juror sworn in the case, but by T. F. Shannon, Sr.: And it is claimed the record does not show that he was one of the jurors sworn, and, in support of this assignment of error, petitioner cifes Younger's Case, 2 W. Va., 579, where it appears that P. B. Shively signed the verdict as foreman, who was a person altogether different from the name of any man sworn on the jury; and the court says: \\\"And if the record had shown that the jury had been properly sworn, and all the other prerequisites had likewise appeared yet still the fact appearing that the juror who signed the verdict was other and different from any of the jurors named as having been sworn, and there being no averment that this odd man had been sworn, this of itself would be sufficient to set aside the judgment and verdict.\\\" In the case at bar T. F. Shannon was sworn as a juror. The record shows that the jury was kept together in the custody of the sheriff, and the mere manner of signing the name is not sufficient to raise a question as to the identity of the juror. In the case of State v. Morgan, 35 W. Va., 260, (13 S. E. 385), a juror by the name of Jeremiah S. Peirpoint was sworn in the case, and the verdict was signed by P. S. Pierpoint. Judge Brannon in delivering the opinion of the Court in that case says: \\\"Are we to say that while the jury was in the custody of the sheriff, and kept together and secured, one of them escaped, atad another mata was substituted, or that another man got into the case? We think not, especially when an explanation of the apparent discrepancy so readily presents itself. The Younger Case, does not compel us to such an unreasonable decision, which would bring the administration of criminal justice into ridicule; for there the juror signed the verdict as P. B. Shively, while the sworn panel showed no such name, the nearest approach to it being- P. B. Smith.\\\" It is not at all unusual for men in the country, when writing- their names, to write them differently at different times; leaving- off the \\\"Jr.\\\" or \\\"Sr.\\\" sometimes, and at other times attaching- it. There can be no doubt about the identity of this juror Shannon.\\nSeventh assignment, \\u2014 thatfhe record fails to show that thejury wasbroug-ht into court on the 24th of March: While it may be said to be irregular, not showing their appearance at the calling of the case, the order does say that after hearing part of the evidence, and the hour of adjournment coming on, the jury was committed to the charge of the sheriff, etc., showing their presence at the court; and the order of the day before shows that they were committed to the care of the sheriff or his deputies, and their presence on the 24th is sufficient to show that they were brought into court in custody of the officers of the court. \\\"By a fiction of law, the whole term of the court is regarded as one day, though, when important, the particular day or even hour, may be shown. Hence the record need not specify the adjournment from day to day within the term.\\\" 1 Bish. Cr. Proc. \\u00a7 1352.\\nIt is unnecessary to discuss the eighth assignment, as it is immaterial.\\nThe ninth assignment, \\u2014 that the court erred in permitting counsel for the State, in his concluding argument before the jury, to make improper statements as set forth in bill of exceptions No. 3. It appears that Mr. Turley, for the defense, in his argument to the jury, said: \\\"There is not in the country 12 honest men who would find the verdict of guilty on the evidence in this case.\\\" Mr. Shumate, attorney for the State, in reply, made use of the following: \\\"Mr. Turley says there are not twelve honest men in the county who would find a verdict of guilty on the evidence in this case; but I say to you that there are not only twelve honest men, but many honest men, in the county, who would find a verdict of guilty on the evidence in this case,\\\" \\u2014 to which remarks the prisoner objected, and asked the court to say to the jury that said remarks were improper, but the court declined to do so, and the prisoner at the time excepted. The statement of .the prosecuting at- torncy was provoked by that o.f the attorney for the prisoner, and a reply to it. There was no argument either in the statement or reply. The statement of defendant's attorney was, of course, intended to have its effect on the minds of the jury7 favorable to the prisoner, while the reply was intended to counteract such effect, if it had been produced, and it was most natural and reasonable to so reply. Average jurors are men of reasonably sound judgment and discretion, and it is not presumed that such remarks by counsel on the one side or the other will influence or bias their judgment in weighing the evidence submitted to their consideration. In the case of State v. Shores, 31 W. Va., 491, (7 S. E. 413), on page 500, 31 W. Va., and on page 418, 7 S. E., the attorney for the State in the concluding argument, \\\"argued that if the prisoner and his associates were capable of committing the several offenses which the evidence showed that they had openly committed on the night of the 27th of February7, 1888, and as admitted by their counsel in his argument, then it followed that they were capable of committing openly the crime with which they stood indicted. The prisoner at the time objected to the argument of the counsel but th\\u00e9 court held the argument proper, and permitted him to proceed. The argument referred to was made in reply to argument of the prisoner's counsel of the unreasonableness of the State's theory, that the prisoner would commit the crime.charged against him in the indictment as shown by the evidence. To which ruling of the court the prisoner excepted, As to the statement of the first counsel, the court ruled it out as improper. That is all the court could do, and the prisoner was not prejudiced. As to permitting the second counsel to proceed, the court did not err. As the record shows, it was a proper reply to arguments of prisoner's counsel. Counsel necessarily have great latitude in the argument of a case, and it is of course, within the discretion of the court to restrain them; but with this discretion the appellate court will not interfere unless it cleaidy appears from the record that the rights of the prisoner were prejudiced by such line of argument.\\\" '\\nAs to tenth assignment: Instructions Nos. 1 and 2 given for the State, of which the prisoner complains, are as follows: \\\"(1) The court instructs the jury that previous threats or acts of hostility, however violent they may be, will not justify a person in seeking and'slaying- his adversary. (2) The court instructs the jury that, where a confession is received in evidence, the .jury may believe that which charges the prisoner, and reject that which is in his favor if they see sufficient grounds for so doing from the evidence in this case.\\\" The first instruction is in the exact words of point 9, Syl., Abbott's Case, 8 W. Va., 741, only substituting the word violent,\\\" in the instruction, for \\\"relevant,\\\" in the syllabus, and propounds the law correctly; but given as it was in this case, as a bare abstract proposition of law, it was calculated to mislead the jury, because the court seems to assume that it had been proved in the case that the prisoner sought and killed his adversarju At least the jury might have been led thereby to think that it was the court's opinion that it had been so proved. There was evidence tending to prove that the prisoner laid in wait for the deceased, and was seeking to slay him, but whether that fact was established by the evidence was a question solely for the jury; and the instruction should have been so qualified as to say that, if they believed from the evidence that the prisoner was seeking to slay his adversary, he was not justified therein by previous threats or acts of hostility, however violent they might be. In People v. Strong, 30, Cal., 151, it is held that \\\"it is for the jury in a criminal case to determine whether evidence introduced upon a given point amounts to proof of the fact sought to be proved.\\\" In Whitley v. State, 38 Ga., 50, it was held that \\\"when the charge of the court assumes certain things as facts, and is in such shape as to intimate to the jury what the judge believes the evidence to be and that they made defendant g'uilty, a new trial will be granted.\\\" No. 2 is a proper instruction. \\\"The court is not bound to give an instructionuponamere abstract question, and if it does so, under circumstances calculated to mislead the jury, such an instruction will be error, for which the judgment will be reversed.\\\" 1 Bart. Law Prac., 656. In Pasley v. English, 10 Grat., 236, point 3, Syl., it is held \\\"if an instruction is given, on an abstract question, which may mislead the jury, it is error for which the judgment will be reversed.\\\" If the courts are so careful in relation to giving instructions which may mislead the jury in trying a case when only property rights are involved, how much greater reason for such care when human life is involved! Instruction No. 4 asked by the prisoner and rejected by the court, is as follows: \\\"The court instructs the jury that if the State relies for a conviction in this case upon evidence in whole or in part circumstantial, then it is essential that the circumstances should, to a moral certainty actually exclude every hypothesis but the one proposed to be proved, and that unless they do, to a moral certainty, actually exclude every hypothesis but the one proposed to be proved, then they should find the prisoner not guilty.\\\" This instruction seems to propound the law properly, and should have been given. While the purposeof the prisoner is better expressed in points 3 and 4 of the syllabus in Flanagan's Case, 26 W. Va., 116, yet in Evans' Case, 33 W. Va., 417, (10 S. E. 792), it is held that \\\"a party has a right to have his instructions given in his own language, provided there are facts in evidence to support it; that it contains a correct statement of the law, and is not vague, irrelevant, obscure, ambiguous, or calculated to mislead.\\\" As to defendant's instruction No. 6, in the following words: \\\"The court instructs the jury that when one without fault is attacked by another in such a manner or under such circumstances as to furnish reasonable gi ounds for apprehending a design to take away his life or to do him some great bodily harm, and there 'is reasonable ground for believing the danger imminent that such design will be accomplished, and the person assaulted has reasonable ground to believe, and does believe, such danger is imminent, he may act upon such appearances, and, without retreating, kill his assailant, if he has reasonable grounds to believe, and does believe, that such killing is necessary in order to avoid the apparent danger; and the killing under such circumstances is excusable, although it may afterwards turn out that the appearances were false, \\u2014 that there was in fact neither design to do him some serious injury, nor danger that it would be done.\\\" The court did not err in refusing- to give the instruction without adding- thereto the words, \\\"but of all this the jury must judge from all the e vidence and 'circumstances of the case,\\\" in which form said instruction No. 6 was given by the court. See State v. Cain, 20 W. Va., 679; also State v. Hobbs, 37 W. Va., 812, (17 S. E. 380). Defendant's instruction No. 7, refused by the court, is as follows: \\\"The court instructs the jury that, if the State tises the declaration of a prisoner, he must take the whole of it together, and cannot select one part and leave another, and, if there be either no other evidence incompatible with it, the declaration so introduced in evidence must be taken as true. The court therefore further instructs the jury that unless they believe from the evidence in this case that there is other evidence, testified to by the witnesses, or from the circumstances in the case, incompatible with the confession of the prisoner in this case, then the declaration so adduced in evidence as a whole must be taken as true.\\\" If the confession of the prisoner had been introduced by the State, this instruction would be good, but being made by the prisoner as a witness upon the stand, offered by himself in his own behalf, \\u2014 he being a competent witness, \\u2014his testimony goes to the jury for what they think 'it is worth. It is not in the province of the court to instruct the jury, in regard to the testimony of any witness, that they shall or shall not believe all or none, or any part, of the evidence given by such witness.\\nThe prisoner's counsel admits that the eleventh assignment is without merit.\\nThe twelfth assignment is that the court erred in pronouncing the death sentence upon the prisoner 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. I think the order of the court made on the 27th day of March, 1897, fully answers this assignment, which order shows that: \\\"The prisoner was set to the bar of the court in the custody of the sheriff of this county. And the court; after maturely considering the motion of the prisoner to set aside the verdict of the jury upon the grounds assigned, doth overrule said motion, and refuses to set aside the verdict of the jury and grant to said prisoner a new trial. The court cloth also overrule the motion in arrest of judgment. To the overruling of said motions the prisoner excepted, and asked that said exceptions be saved to him; the prisoner showing no further reasons why judgment should not be pronounced against him, and asking that the execution of such judgment as may be pronounced against him, should be postponed until a reasonable time after the first day of the next term of the supreme court of appeals of this State, to enable him to apply for a writ of error herein.\\\" The court then proceeded to render its judgment. It appears from the record that, after the coming in of the verdict, the prisoner moved the court to set aside the verdict and grant him a new trial, and moved in arrest of judgment, both of which motions were overruled in the presence of the prisoner. Then the order g-oes on to state that the prisoner gave no .further reasons why judgment should not be pronounced against him, and asked that the execution of such judgment as might be pronounced against him should be postponed until after the first day of the next term of,the Supreme Court. In 21 Am. & Eng. Enc. Law, 1071, it is stated that \\\"although the presence of the defendant in court at the time of pronouncing sentence, and the inquiry of whether he has anything to say whyr sentence should not be pronounced, may be necessary to the validity of the sentence, an omission of these formalities, like a defect in the style of the sentence itself, will not be ground for a new trial, or the discharge of the prisoner, but the appellate court will remand the case, with instructions to render judgment according to law.\\\" I think it unnecessary further to discuss this assignment.\\nThe thirteenth assignment goes to the jurisdiction of . the court, claiming that the venue had not been proved. It is proved by all the witnesses who saw the deceased at the place where he was killed, including the prisoner himself, that the killing was at Road Branch Gap. And the witness Lafe Ellis, who saw the deceased at the place where he was killed, before his- death, said he saw Dr. Harvey lying on his side;-he seemed to be suffering. Witness remained there about ten minutes, went away and af-terwards returned, and, when he got back, L. Godfrey and two or three others were there. That the body of James Harvey Ferguson was still there. He was there dead. He says: \\\"I did not notice from what direction he had come. I found him in Wyoming County, West Virginia.\\\" This is sufficient proof of the crime being committed in Wyoming County. In Hobbs' Case, 37 W. Va., 816, (17 S. E. 382), the Court quotes from Whart. Cr. Ev. \\u00a7 108, with approval: \\\"It is not necessary that witnesses should be produced to testify that the offense was committed in the place charged. It is enough if the proof be inferential.\\\" State v. Poindexter, 23 W. Va., 805. And in Hobbs' Case, supra, point 4, Syl., it is held: \\\"It is not necessary that the proof should be direct that the crime was committed in the county charged. It is enough if the proof be inferential, but sufficient.\\\"\\nThe fourteenth assignment, that the verdict in this case is manifestly contrary to the law and evidence therein, I deem it unnecessary to pass upon.\\nFor the reasons herein given, the judgment is reversed, the verdict set aside, and a new trial awarded.\"}"
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+"{\"id\": \"8638760\", \"name\": \"The United Fuel Gas Company v. L. V. Koontz et al.\", \"name_abbreviation\": \"United Fuel Gas Co. v. Koontz\", \"decision_date\": \"1933-05-02\", \"docket_number\": \"No. 7513\", \"first_page\": \"611\", \"last_page\": \"616\", \"citations\": \"113 W. Va. 611\", \"volume\": \"113\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T19:03:01.891534+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The United Fuel Gas Company v. L. V. Koontz et al.\", \"head_matter\": \"The United Fuel Gas Company v. L. V. Koontz et al.\\n(No. 7513)\\nSubmitted April 19, 1933.\\nDecided May 2, 1933.\\nKoontz, Hurlbutt & Bevercomb and H. L. Carney, for appellants.\\nHarold A. Bitz and B. J. Pettigrew, for appellee.\", \"word_count\": \"1729\", \"char_count\": \"9606\", \"text\": \"Woods, Judge:\\nThis suit was brought for the purpose of enjoining L. V. Koontz and Columbian Carbon Company from proceeding further with the drilling of a certain gas well upon a tract of fifty-four acres, near Clendenin, Kanawha County, and to cancel certain purported title papers as clouds upon plaintiff's superior title to the oil and gas underlying said tract of land, upon the theory that the fifty-four acre tract is covered by plaintiff's 238-aere lease, executed on November 21, 1912, for a period of ten years by L. V. Koontz, in his own right, and as attorney-in-fact for L. K. Koontz, Ada Koontz, J. W. Koontz, Martha Koontz, J. A. Osborne and Sarah C. Osborne, as lessors. Plaintiff, on August 28, 1922, entered upon the premises covered by its lease (but not upon any part of said fifty-four acre tract) and drilled a producing gas well thereon, which has continuously since said date, produced gas in paying quantities. The circuit court, after finding that plaintiff's lease covered the acreage in question, decreed that plaintiff was entitled to the well, which Koontz, by agreement with United Fuel Gas Company, had been permitted to complete; with the further finding of the court that M. F. Osborne, who held an outstanding % in fee in the fifty-four acres, was entitled to % of the usual royalty. L. Y. Koontz, Sarah C. Osborne, M. F. Osborne and Columbian Carbon Company prosecute this appeal.\\nDoes equity have jurisdiction? We note in Gas Co. v. Cabot, 96 W. Va. 387, 391, 122 S. E. 922, 924, Judge Lively speaking for the Court, that \\\"Where there are a senior and junior oil and gas lease upon the same land from the same owner, equity has jurisdiction at the instance of the one in possession to remove and cancel one as a cloud upon the title of the other, to preserve the status pending the litigation, and to settle the equitable rights between the parties. Reserve Gas Co. v. Carbon Black Mfg. Co., 72 W. Va. 757, 79 S. E. 1002; Smith v. Root, 66 W. Va. 633, 66 S. E. 1005; Urpman V. Lowther Oil Co., 53 W. Va. 503, 44 S. E. 433; Eclipse Oil Co. v. South Penn Oil Co., 47 W. Va. 84, 34 S. E. 923.\\\" The fact that there was outstanding in fee, as to the fifty-four acres, at the time of the lease for 238 acres \\u2014 Duling and wife having a Ys, and M. F. Osborne a % \\u2014 does not deprive the plaintiff of the right to come into equity to remove cloud to the extent of its interest in the tract. The case of Gas Company v. Hays Oil & Gas Co., 107 W. Va. 255, 148 S. E. 76, is quite different in that the plaintiff did not have an established right, relying upon adverse possession. Gas Company v. Hays Oil & Gas Co., 111 W. Va. 596, 163 S. E. 443. The demurrer to the bill was properly overruled.\\nThe merits of the ease go mainly to the question of whether or not the fifty-four acre tract is in fact within the terms of the lease of 1912. The property leased is described as bounded on the north by \\\"lands of C. & C. Ry\\\"; on the.east by \\\"lands of Paul Lands\\\"; on the south by \\\"lands of Paul Lands\\\"; on the west by \\\"lands of Sarah C. Osborne\\\"; and \\\"containing 238 acres, more or less\\\". No reference is made therein to any title papers, nor to any former lease. However, witness Price, who took the lease of 1912, testified that it was in fact a renewal of the 1904 lease (for ten years), which after using the same adjoiners, continued \\\"and being same land conveyed to the first parties by John and James Samples by deed bearing date \\u2014 A reference to this deed shows that a'half interest was conveyed thereby to the aforesaid fifty-four acres, as well as the fee in two other parcels of land, admittedly within the terms of the lease. At the time of the 1912 lease the lessors held title to % of the fifty-four acre tract \\u2014 the Dulings and M. P. Osborne owning the %. The defendants object strenuously to reference to the lease of 1904, claiming that the plaintiff is thereby permitted to vary the express terms of the contract lease of 1912. It is apparent that the trial court considered such evidence, since he made a specific finding that the fifty-four acres were included in the lease of 1904, as well as that of 1912. But be that as it may, defendants' position likewise weighed heavily against their own interests. They contend that the adjoiners limited the lease on the east and south by the Work and Curren line, which runs approximately northeast and southwest. They point out that the predecessors of Paul owned a 50,000 acre tract to the east of the Work and Curren line, and that therefore when Paul lands are referred to it meant all lands east of and contiguous to said line. It must be remembered, however, that 54 acres of the James Adkinson patent for 100 acres, dated 1836, was to the east of the Work and Curren line, and that this fifty-four acres comprises the tract involved in this proceeding. The 50,000 acre tract aforesaid, 5,000 of which later came into Paul's hands, was forfeited to the State of Virginia for non-payment of taxes from 1832 to 1840, and 15,000 acres thereof was sold by commissioners of delinquent lands in 1849 to Lewis Ruffner, Paul tracing his title (purchased in 1888) back to Ruffner. It is alleged and testified to on behalf of defendants that taxes have been paid regularly on the Adkinson 100 acre patent; and, further, that they have held the fifty-four acre tract adversely and continuously for more than ten years. All this tends to negative the contention of defendants that the lands east of the line were always referred to as the Paul lands. The finding of the circuit court, according to our views,, was wholly proper in this respect.\\nThe King Land Company, which, as intervenor, set up a claim to the fifty-four acres through Paul, offered no proof in opposition to defendants' evidence of adversary possession. The prayers of its original and amended and supplemental intervening petitions were therefore properly denied.\\nThe trial court gave effect in its order to plaintiff's contention that L. V. Koontz' % interest, acquired from the Dulings in 1914, after the execution of the lease, inured to the benefit of the plaintiff. The lease carries a provision which amounts to an express waiver of any implied warranty of title as to any interest in the premises that may be outstanding. This provision reads: \\\"Said lessee shall not be required in any event to increase the rate of said gas well payments or said royalty of oil by reason of any royalty or interest in said oil or gas that may have been heretofore sold, reserved, or conveyed by said lessors, or their predecessors in title, or otherwise. And any such outstanding royalty or interest shall be first deducted from the royalties and rentals above provided to be paid or delivered.\\\" ~We do not see wherein the after-acquired Duling interest would inure to the lessee because there was no implied covenant of general warranty or quiet enjoyment in said lease. Western Mining etc. Co. v. Peytona, 8 W. Va. 406, 445-7.\\nAs to the % Duling interest, Koontz now stands on a parity with M. P. Osborne. In speaking of the trial court's ruling in regard to Osborne's % interest, the plaintiff takes the position that the rule of estoppel recognized in a number, of our cases applies. Paxton v. Benedum Trees, 80 W. Va. 187, 94 S. E. 472; South Penn Oil Co. v. Haught, 71 W. Va. 720, 78 S. E. 759; Cecil v. Clark, 49 W. Va. 459, 39 S. E. 202; Williamson v. Jones, 43 W. Va. 562, 27 S. E. 411. Also the recent case banded down by Circuit Court of Appeals, Third Circuit, of Germer et al. v. Donaldson, 18 Fed. (2d) 697, which is based upon the Haught case, supra. But do the -foregoing cases apply under the circumstances of the instant case ? This Court in the Haught ease recognized that one joint tenant of oil and gas, having no right to extract it from the earth without the consent of his co-tenant, cannot confer such right upon his lessee. And we have held that an injunction will be granted to restrain the lessee of one joint tenant from removing the gas from the jointly owned lands, where the element of drainage is not involved. Law v. Heck Oil Co., 106 W. Va. 296, 145 S. E. 601. Nor will a court compel a co-tenant to lease his interest. York v. Warren Oil & Gas Co., 191 Ky. 157, 229 S. W. 114; New Domain Gas Co. v. McKinney, 188 Ky. 183, 221 S. W. 245; Lanyon Zinc Co. v. Freeman, 68 Kan. 691, 75 P. 995; Gulf Refining Co. v. Carroll, (La.) 82 So. 277; Medina Oil Co. v. Murphy, (Tex.) 233 S. W. 333. It is the contention of the appellants that the decree giving Osborne % of the royalty or rental in effect places upon his interest a lease, making him a lessor, although he never joined in the lease. So far as the record discloses, the plaintiff never assumed any risk in the drilling \\u2014 had the well been a dry hole, it would not have lost anything. Therefore the question of estoppel, as set out in the cases cited by the plaintiff, does not enter into the case so far as Osborne's % interest is concerned. Such also applies to the after-acquired Koontz interest of %.\\nThe decree is reversed in so far as the after-acquired interest of Koontz and the interest of M. F. Osborne are concerned, and the case remanded for the purpose of fixing the interests of the several parties in conformity with the principles hereinbefore set out. In all other respects the decree is affirmed.\\nAffirmed in part; reversed in part; remanded.\"}"
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diff --git a/w_va/8639696.json b/w_va/8639696.json
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+"{\"id\": \"8639696\", \"name\": \"Kester et al v. Hill et al.\", \"name_abbreviation\": \"Kester v. Hill\", \"decision_date\": \"1896-12-05\", \"docket_number\": \"\", \"first_page\": \"611\", \"last_page\": \"633\", \"citations\": \"42 W. Va. 611\", \"volume\": \"42\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T18:48:06.944511+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kester et al v. Hill et al.\", \"head_matter\": \"CHARLESTON.\\nKester et al v. Hill et al.\\nSubmitted September 10, 1896\\nDecided Dec. 5, 1896.\\n1. Guardian and Ward \\u2014 Sale of Ward's Land \\u2014 Proceeds of Sale \\u2014 Guardian\\u2019s Bond.\\nWhere a party is appointed guardian of the estate of infants, and enters into bond as such, and during the continuance of his trust be tiles a bill under the statute for the purpose of obtaining a decree for the sale of real estate belonging to his wards, it is the duty of the court to see to the investment of the proceeds of sale for the use and benefit of the persons entitled to the estate; and before such sale is made the guardian shall in open court enter into bond with approved security in a penalty equal to double the value of the estate to be sold, conditioned for the faithful application of the proceeds of sale.\\n2. Guardian and Ward \\u2014 Sale of Ward\\u2019s Land \\u2014 Guardian\\u2019s Bond.\\nWhere such bond is given in open court, with approved secur ity, in a pending suit for the sale of his wards\\u2019 land, the sureties on his original bond as guardian are not liable for the faithful accounting for the proceeds of such sale, as the statute clearly intends that sufficient bond and security shall be taken by the court in which such suit is pending to protect those interested in its proper application; and it was no part of the duties of the guardian to sell the real estate of his wards until so directed by a decree of the court, and it is the duty of the court to protect the estate by proper security.\\nW. Scott and Davis & Davis for appellants.\\nW. Scott\\ncited Code, c. 10, ss. 1, 2, 3, 4; 9 Am. & Eng. Enc. Law', 141; Code, c. 83; 2 Brandt, Surety & Guar. 796; 3 Wait, Act. & Def. 261; 31 Ill. App. 483; 43 Mo. App. 16; 32 W. Ya. 529; 16 W. Va. 167; 33 W. Ya. 737; Code, c. 82, ss. 10, 11, 14.\\nL. C. LawsoN for appellees,\\ncited Code, e. 82, ss. 14,100; Code, c. 83, ss. 2,15; Code, c. 87, ss. 9,10; Code, c. 118, s. 1; Bart. Ch. Prac. 696; 1 Min. Inst. 505; Sands, Suit Eq. 539, 542; 16 W. Ya. 167, 205, 206; 33 W. Ya. 737; 32 W. Ya. 216, syl. pt. 5.\", \"word_count\": \"8778\", \"char_count\": \"49332\", \"text\": \"English, J udge:\\nA bill in equity was filed at April rules, 1894, in the clerk's office of the Circuit Court of Harrison county, by Cecil M. Kester, Sadie B. Kester, Hattie Kester, and William PI. Kester, who sued by Ella Kester, their next friend, against W. E. Hill, J. B. Sandusky, Henry C. Ross, and James Dunkin, administrator of Gideon Saudusky, deceased, praying that the defendant W. E. Hill be required to settle his accounts as guardian of said infant plaintiffs in the mode, prescribed by law, and seeking to surcharge and falsify certain settlements made by said guardian before Commissioner Werninger in certain particulars set forth in the bill, as well as in all other respects wherein the same might be erroneous and incorrect; that the same might be corrected, and the several items and charges allowed against the complainants might be disallowed; that said W. E. Hill might be removed as guardian of complainants, and another guardian be appointed in his stead, and required to give new and sufficient bond as such; that said W. E. Hill, and his sureties, J. B. Sandusky and Henry 0. Boss, may be compelled to account and pay over to said guardian so appointed instead of said Hill the amount in his hands of the estate due and belonging to the complainants; that the settlements of said J. B. Sandusky be set aside, and declared null and void; that his authority as such guardian likewise be declared null and void, and that said J. B. Sandusky and James Dunkin, as the administrator of the said G-ideon Sandusky, his surety, may be compelled to account for and pay over to said guardian so appointed herein all the funds or amount of the estate of the complainants which came into the hands of said Sandusky, and for which they, or either of them, were liable.\\nThe bill, after stating that said W. E. Hill was by the clerk of the county court of said county ofHarrison, in vacation, appointed guardian of Cecil M., Sadie B., Hattie, and William H. Kester, as shown by a copy of the order therein filed, marked \\\"No. 1,\\\" proceeds as follows:\\n\\\"He, the said Wm. E. Hill, qualified as the guardian of each of your complainants, and entered into four separate bonds as such in the penal sum of twenty five hundred dollars each, with said J. B. Sandusky and Henry C. Boss as sureties thereon, as evidenced by said order of appointment and copies of each of said bonds, filed herewith, as a part hereof, marked Exhibits Nos. 2, 3, 4, and 5. That immediately thereafter said guardian entered upon the duties of said office, and took control and possession of the estate, both real and personal, of bis said wards. That as such said guardian received large sums of money belonging to the estate of his said wards, as follows: Erom George W. Graves, administrator of the estate of William H. Kester deceased, who was the father of your complainants, a note of M. E. Kester for one thousand three hundred and thirty three dollars and forty six cents and cash four hundred and thirty five dollars and eighty three cents, received March 21, 1885, amounting in the aggregate on said date to the sum of one thousand seven hundred and sixty nine dollars and twenty nine cents, as is shown by an inventory made by said guardian, and recorded in the county clerk's office in Fiduciary Order Book No. 25, page 274, a copy of which is filed herewith, as part hereof, as Exhibit No, 6; from real estate of said wards, sold under decree of your honor's court entered on the 15th day of May, 1885, directing said guardian to sell their interest in one hundred and forty four acres of laud in said county, and two houses and lots in Bridgeport, in said county, which decree was entered of record in the clerk's office of your honor's court on such day in Chancery Order Docket No.' 18, page 280 to which reference is made and asked to be read in connection with this bill, and a copy of which is filed herewith as part hereof, and in pursuance of which said decree said guardian sold one-half of said one hundred and forty four acres to Castella Hester for the sum of eight hundred and eighty two dollars, and one house and lot in Bridgeport to Ella Hester for five hundred dollars, as is shown by a decree entered therein by your honoi''s court as of the 29th day of January, 1886, and recorded in said clerk's office in said Chancery Order Docket, on page 432, a copy of which is likewise filed herewith as a part hereof, marked 'Exhibit No. 7;' and said guardian sold the remaining lot in Bridgeport on the 1st day of May, 1886, to J. B. Sandusky, for the sum of three hundred and sixty five dollars, as is also shown by a subsequent decree therein entered on the 31st day of May, 1886, and recorded in said office and Chancery Order Docket, on page 490, a copy of which is filed herewith as part hereof, marked 'Exhibit No. 8'; the sales of said real estate amounting in all to one thousand seven hundred and forty seven dollars, as therein shown, and the receipt of which said three hundred and sixty five dollars is shown by an inventory made by said guardian, entered of record in said county court clerk's office in Fiduciary Order Book No. 23, page 184, a copy of which is filed herewith, marked 'Exhibit No. 9.'\\n\\\"Your complainants further charge and aver: That after said Hill had qualified as said guardian, and received the moneys aforesaid, he proceeded to settle his accounts as guardian of your complainants before A. Werninger, a commissioner of accounts in and for said county of Harrison, who made up settlements for each of said wards on the 1st day of June, 1886, and the same having been com pleted on said day, seem to have been filed in the county court clerk's office in October, 1886, and were confirmed by the county court. Copies of each of said settlements are filed herewith as a part hereof, marked 'Exhibits Nos. 10, 11, 12, and 13.' That on the 1st day of November, 1888, said commissioner again made up and settled the accounts of said guardian for each of your said complainants, which said reports seem to have been filed in said clerk's office on the 26th day of June, 1889, and were likewise confirmed by said county court, copies of which are filed herewith as part hereof, marked 'Exhibits 14, 15, 16, and 17'; and that.said guardian made no other settlements of his accounts with your complainants, but has failed, refused, and neglected to make the same, and doth continue so to do; and that there is now a large amount of money in the hands of said guardian, and J. B. Sandusky, his surety, belonging to the estate of each of your complainants, for which said guardian has failed and refused to account as provided and required by law.\\n\\\"Your complainants further charge and aver that after said guardian had made these last settlements aforesaid, he soon thereafter left the state of West Virginia, and thereby became a non-resident thereof, and remained away from and out of said state until recently, when he has again returned, and now resides in said county of Harrison; that during the absence of said guardian, that for many years before the estate of your complainants was wasted and neglected and allowed to drift into the possession and control of parties other than said guardian, and who had no right to or control over the same, and who should not have been permitted to have the same, but the same should have been invested or loaned out for the benefit of your complainants, as required by law; that while said Hill was absent from the state as aforesaid the said J. B. Sandusky, on the 26th day of March, 1891, appeared before the clerk of the county court of said county of Harrison in vacation, and made application to said clerk to be appointed guardian of your complainants instead of the said W. E. Hill, and thereupon an order was made and entered appointing said J. B. Sandusky the guardian of your complainants, and removing said W. E. Hill as sucb guardian, a copy of which order is filed herewith as part hereof, marked 'Exhibit No. 18'; that on said day said Sandusky, as such guardian, made and entered into four separate bonds with G-ideon Sandusky as his surety thereon, as evidenced by said applications, order, and bonds, recorded in said clerk's office, and. copies of which bonds are filed herewith as part hereof, marked 'Exhibits Nos. 19, 20, 21, and 22, and that since the execution of said bonds the said Gideon Sandus-ky has departed this life, and the said James Dunkin was appointed and qualified as the administrator of said San-dusky, deceased. Your complainants further charge and aver that after his said appointment said J. B. Sandusky, on the first day of July, 1898, made settlements as the guardian of your complainants before J. it. Adams, a commissioner of accounts for said county, which were in the following September presented to and confirmed by the county court of said county, copies of which are filed herewith as part hereof, marked 'Exhibits Nos. 28, 24, 25, and 26'; that from said settlements it doth appear that said J. B. Sandusky as the guardian of your complainants, received large sums of money belonging to their estate and still holds and controls the same.\\n\\\"Now your complainants further charge and aver that said clerk of the county court had no power or authority to remove the said W. E. Hill as the guardian of your complainants, as he so attempted, nor had he any right, power, or authority to appoint the said J. B. Sandusky guardian of your complainants instead of said W. E. Hill; that all such acts and conduct of said clerk in attempting to remove said Hill and to appoint said Sandusky as aforesaid are without authority or sanction of law, and therefore null and void; that the said J. B. Sandusky derived no power or authority from such acts and appointment by said clerk as the guardian of your complainants, and that .his said settlements as well as any and all other acts and transactions made and performed by him as such guardian are therefore illegal; and, though his said settlements were so confirmed by said county court, they were not prima facie correct or conclusive against your said complainants, but are likewise null and void, so far as tbe same in any wise pertains to the interest of your complainants respectively.\\n\\\"Your complainants further charge and aver that said one thousand seven hundred and sixty nine dollars and twenty nine cents so received from said George W. Graves as the administrator of said William II. Kester, deceased, was principal of personal estate from and after its receipt by said guardian Hill; that of the said one thousand seven hundred and forty seven dollars, the proceeds of the said real estate of your complainants, the said Ella Kester was by said decree, herein referred to, allowed the sum of three hundred and ninety one dollars and twenty two cents as and for her dower interest in said lands, she, the said Ella Kester, being the widow of said W. II. Kester, deceased, who was the father of your complainants; that your complainants were infants at the time their lands were sold by a decree of your honor's court as hereinbefore stated and referred to, and are still infants herein, suing by their next friend, Ella Kester, and that the residue \\u2014 one thousand three hundred and fifty five dollars and seventy eight cents \\u2014 of said purchase money for said real estate of your complainants is still real estate in the hands of said guardian Hill. Your complainants further charge and aver that said one thous- and seven hundred and sixty nine dollars and twenty nine cents, being the principal of personal estate, can not be reduced in amount by said guardian, except by an order of court as provided in section 8 of chapter 82 of the Code of this state; that no such an order as therein required was ever obtained by said guardian; that said residue \\u2014 one thousand three hundred and fifty five dollars and seventy eight cents \\u2014 can likewise not be reduced in amount by any action of said guardian, as to which said guardian was directed by your honor's court in said former decrees herein-before referred to, yet, notwithstanding these directions and provisions, said guardian Hill did reduce said respective amounts far below their original sums, and without authority or direction of court, as so required, appropriated a portion thereof to improper uses, and has wasted and neglected their respective estates. Your complainants further charge and aver: that by reference to said settle- meuts made before said Commissioner Werninger as of the 1st day of June, 1886, it may be seen that among numerous other false and erroneous charges and items allowed therein in favor of said guardian and against your complainants are the following: Two hundred and eighteen dollars and ninety one dollars and twenty five cents, as shown therein in settlement for each wTard as his just share or portion of the real estate so sold; thus making only one thousand two hundred and thirty seven dollars had and received by said guardian from the sale of said lands for all four of your complainants, when in fact said guardian, for said lands, received one thousand seven hundred and forty seven dollars; and, there being allowed to said widow out of the same as aforesaid the sum of three hundred and ninety one dollars and twenty two cents, there would still remain thereof one thousand three hundred and fifty five dollars and seventy eight cents, less the costs of said suit, in the hands of said guardian, belonging to your complainants, making to each ward the sum of three hundred and thirty eight dollars and ninety four cents, instead of three hundred and nine dollars and twenty five cents, as in said settlements shown. That among numerous other false and erroneous credits allowed said guardian therein in each of said settlements and against complainants are the following: The sum of forty dollars and ten cents, being five per cent. commission on eight hundred and one dollars and ninety cents, 'and five dollars for two days allowed guardian extra services and expenses'; making in all char'ged against your complainants as commission and for extra services and expenses the sum of one hundred and eighty dollars and forty cents, when in fact said guardian should not have been allowed any commission on said sums, or anything whatever, for extra services, for the reason that said settlements, nor none of them, were made within the time required by law, nor as provided by law. That the same is excessive, and should not have been allowed by said commissioner. That the said one thousand and three hundred and fifty five dollars and seventy eight cents, on which in part said commission was calculated, is real estate, and therefore said guardian was no more entitled to a part thereof in the form of a commis sion after the sale of said lands than be was to a part of the said lands before said sale. That a guardian can not utilise his office or the estate of his ward, or change the form or condition of that estate for his own benefit or advantage, and to the detriment of his ward. That the eight hundred and one dollars and ninety five cents credited to the estate of each of said wards are insufficient, and therefore incorrect, for the reason that the said guardian is not therein charged with all the estate of your complainants which came to his hands as above shown, and that the balance in said settlements shown to be due each of your complainants on the 1st day of June, 1886, are in fact less than was actually due to them, as said guardian was not charged with the proper amounts coming into his hands as such, and was unjustly credited therein with improper amounts in the way of commission, extra services, etc. Your complainants further charge and aver: That for further grounds for reasons for surcharging and falsifying these said accounts and settlements of said guardian Hill, by reference to these said settlements made by said guardian before said commissioner Werninger on the 1st day of November, 1888, it appears that among numerous other false and erroneous charges and credits allowed therein in favor of said guardian and against your complainant, are the following: These respective sums as balance due each of your complainants as of the 1st day of June, 1886, which, as therein charged against said guardian, are incorrect, and less than is properly chargeable, for reasous heretofore assigned. That the interest therein is likewise less than is just for the same reasons that among numerous other credits therein erroneously allowed said guardian are the following: The said three hundred and ninety one dollars and twenty two cents as having been paid to said Ella Kester as and for her said dower in said lands sold, when in fact said guardian is nowhere in any of his said settlements charged with his said money, although he received every dollar of said money for said lands, amounting to one thousand and seven hundred and forty seven dollars, and nowhere in any of said settlements accounts for over one thousand and two hundred and thirty seven dollars of the same. That in each of said set- tlemcnts said guardian is again allowed for extra services and expenses tbe sum of eighteen dollars and seventy five cents for seven and one half days at two dollars and fifty cents per day, and, in addition thereto, for commission, amounting to about four dollars and fifty cents, which are incorrect and erroneous, and should not have been allowed by said commissioner, for the reason, among other things, that said settlements were not made within the time and as provided by law, and the same is excessive and unwarranted. Your complainants further charge and aver: That by an inspection of each and all of said settlements so made by said guardian it may be observed that the same are incorrect in the following particulars: The said guardian having qualified on the 17th day of April, 1884, the annual balance due these complainants should have been found as of this date in each subsequent year, and the interest thereon charged to said guardian, which was not done in these said settlements; and that these balances so found by said commissioners as of the date therein given have been steadily diminished from the first year to the last; as therein shown, and thereby the principal of said estate was reduced without authority, and contrary to law: Your complainants further charge and aver the said guardian has not made a settlement of his accounts as such since said last above was so made as of the 1st day of November, 1888, and still fails and neglects and refuses to make the same; that both said guardian W. E. Hill and said surety Henry C. Ross are insolvent; that the estate of your complainants has been greatly neglected and wasted and is in great danger of being squandered and lost if allowed to remain in the possession and control of said guardian, and that the conduct of said guardian and the financial condition herein in relation to the estate of your complainants and each of them in the hands of said guardian is such that it is improper and detrimental to the interest of your complainants that their said estate remain longer in the hands of said guardian, or under his control or the security herein given. And they pray, as hereinbefore stated.\\n\\\"J. B. Sandusky in his own right, and as guardian of Cecil-M., Sadie B., Hattie and William H. Kester filed an answer to said bill, and W. E. Hill also filed his answer to the same, putting in issue the material allegations thereof, and thereupon the plaintiffs filed an amended bill, making Amaziah Hill and Edgar Hill, together with W. E .Hill, J. B. Sandusky, Henry C. Ross, and James Dunkin administrator of G-ideon Sandusky, deceased, parties thereto; and allege by way of amendment that though W. E. Hill was required to give bond in the penalty of two thousand and five hundred dollars, conditioned according to law before collecting any of the deferred installments of purchase money, and was required to execute bond in open court in the penalty of five thousand dollars for each ward, conditioned for the faithful application of said funds, and for the management and preservation of any property or securities in which the same might be invested, and for the protection of the rights of all persons interested therein, said W. E. Hill never gave the said bond in the penalty of two thous- and and five hundred dollars as so directed in said decree, with Amaziah Hill and Edgar Hill as sureties therein, nor did said W. E. Hill ever give said bonds so required of him in said subsequent decree of the 29th of January, 1886, or any of said bonds directed to be givien by him; that said Ama-ziah Hill and Edgar Hill, nor either of them, were the sureties of said W. E. Hill on his bond of two thousand and five hundred dollars, and that they and each of them are insolvent, and they pray as in their original bill they prayed. The defendants W. E. Hill and J. B. Sandusky filed a demurrer to the bill and amended bill filed as aforesaid in the following words:\\n\\\" Cecil M. Kester et als. v. W. E Hill et als. Demurrer. The defendants W. E. Hill and J. B. Sandusky say that the amended bill and also the original bill filed in this cause is not sufficient in law or in equity, because: Eirst. Said cause being a suit in equity, brought by the plaintiff'to charge Baid demurrants, viz. the said W. E. Hill, as guardian, and the said J. B. Sandusky, as said Hill's surety on said Hill's- bond as such guardian, with money alleged to be due the plaintiff's by virtue of the bond of said Hill, as guardian aforesaid, should have been brought in the name of the state of West Virginia, for the use of said plaintiffs, the bond upon which said cause of action is based being payable to the state of West Virginia. Second. Because the surety of said W. E. Iiill on his official bond as guardian of the plaintiffs can not be joined in a suit with the sureties of said Hill on a bond given by him as required by the order of the court in a chancery proceeding instituted by said Hill as guardian to sell the real estate of his wards. Third. Because the demurrant J. B-Sandusky is in noway responsible for the lands of the plaintiffs sold by said Hill under an order of the court directing said Hill to sell the same, and requiring him to give bond to account for the proceeds of said sale or sales, and can not, as the surety of said Hill on his bon das guardian, be charged with the proceeds of said sale of lands. Fourth. Because the demurrant Hill can not in this cause be charged with the proceeds of the sale of the lands sold by him under an order of the court in the chancery cause brought by him, for the sale of the real estate of his wards, the plaintiffs, but only with such moneys and personal estate as were realized and came into his hands as guardian of said plaintiffs. Fifth. Because, as far as the amended bill is concerned, or any other proceedings that may be or have been instituted in this cause, are concerned, the demurrants, Hill and Sandusky, can not be charged in this cause with the proceeds of real estate alleged to have been sold by the demurrant Hill under a decree of this court in a chancery suit by said Hill, as guardian, to sell the real estate of his wards, although said Hill may not have given the bond required by the court when it ordered such sale. Sixth. Because the demurrant Sandusky can not be charged with the proceeds of the sale of the real estate which this court directed said Hill to sell as said guardian, said court having required said Hill to give bond in the proceedings for the sale of said real estate instituted by said Hill. W. E. Hill, J. B. Sandusky by counsel. W. Scott, Att'y.\\\"\\nThe amended bill was answered by J. B. Sandusky and W. E. Hill putting in issue the allegations of the said amended bill.\\nOn the 15th day of May, 1885, a decree appears to have been entered by the circuit court of Harrison county di recting said W. E. Hill, as the guardian of said infants, to make sale of certain real estate either at public or private sale, as in his discretion should be most advantageous to the interests of said infants, free of the widow's dower, the undivided interest of said infants in a tract of one hundred and forty four acres of land, also two houses and lots in the town of Bridgeport, for one-third cash in hand and on a credit of six and twelve months as to the residue, with interest from the day of sale, taking from the purchaser bond with good security for the deferred installments, and requiring him, before making such sale or receiving any money under said decree, to execute bond in the penalty of two th iusan.1 and five hundred dollars, conditioned according to law. It further appears that in pursuance of the terms of said decree said \\\"W. E. Hill sold the undivided interest of W. H. Kester, deceased, in said one hundred and forty four acre tract of land to Castella Kester for the price of eight hundred and eighty two dollars or two dollars per acre, of which she paid in hand 'one hundred dollars, and complied with the terms of sale by executing bonds with security for the deferred installments, and that he sold on the same day the house and lot in Bridgeport, in which the defendant Ella Kester resides to said Ella Kester for five hundred dollars, of which sum she paid two hundred dollars, and executed her notes with security for the residue; and the court ascertained the dower interest of said Ella Kester to be three hundred and ninety one dollars and thirty two cents, with which sum said W. E. Hill was authorized to credit her as of the date of sale in her purchase, and before collecting any of the deferred installments of purchase money said W. E. Hill was required to execute in open court, bond with good security in a penalty of five hundred dollars, for each ward conditioned for the faithful application of said funds, and for the management and preservation of any property or securities in which the same may be invested, and for the rights of all persons interested therein. On the 31st day of May, 1886, said sale was confirmed, and said W. E. Hill was directed to loan out the money received by him until his wards became of age, and said \\\"W. E. Hill was appointed special commis sioner to make and deliver to said purchaser a deed for said lot. On the 19th day of May, 1894, the cause was referred to M. M. Thompson, one of the commissioners of the court, who was directed to state, audit, and settle the accounts of W. E. Hill as guardian of said infants, in the manner required, and that he report the real and personal property of said wards which came or ought to have come into the hands or under the management and control of said guardian, the value and amount thereof, the annual value of the real estate, if any, and the time of the receipts thereof, together with the rents and profits of the real estate which came into his hands as such guardian; what balance, if any, there is or ought to be in the hands of said guardian belonging to each of said wards; and that he specially report upon the foregoing items of credit allowed said guardian in his settlement made with A. Werninger as shown by Exhibits Nos. 10, 11, 12,13, 14, 15, 16, and 17 which are specially surcharged and falsified in the bill, etc.\\nSaid M. M. Thompson, as commissioner, returned his report in pursuance of said decree on the 13th day of December, 1894, which was excepted to as follows:\\n\\\"The defendant W. E. Hill excepts to the report of Master Commissioner M. M. Thompson: First. Because said commissioner erred in charging defendant with compound interest in making up the accounts of defendant with his wards, Cecil M., William H., Sadie B., and Hattie Kester. Second. Because said commissioner erred in charging defendant with compound interest on the note of M. E. Kes-ter, due the said wards. Third. Because said commissioner should have given defendant credit on account of the note of said M. E. Kester, with interest on the said note from its date, February 1, 1888, and, as said interest was payable semi-annually, the same should have been compounded, and said M. E. Kester is liable for said interest compounded. Fourth. Because it is not correct or legal to charge said defendant with the entire sum of the balance found due by A. Werninger, commissioner of accounts, iu the last settlement made before said commissioner, as said commissioner in said settlement charged defendant with the entire amount of the M. E. Kester note, but does not cred: it defendant witli said note as part of the assets of the estate of said wards in defendant's hands. Fifth. Because it is not true, as stated in the report of Commissioner Thompson, that there appears upon the face of the settlement made by A. Werninger, commissioner of accounts, completed November 1, 1888, 'a most glaring and detrimental error against defendant's wards,'in this: that 'said guardian is credited in the settlement with one-fourth of three hundred and ninety one dollars and twenty two cents so paid said Ella Kester, widow as aforesaid,' and defendant says that sum had not been deducted in said guardian's (this defendant's) first settlement with his wards as alleged and charged in Commissioner Thompson's report, and refers to said first settlement filed as an exhibit in this cause. Sixth. Because a fair settlement of the accounts of this defendant with his wards, the plaintiffs in this cause, will show that this defendant does not owe said wards the sum charged in Commissioner Thompson's report, and that his total indebtedness to them, as considered altogether, is less than five hundred dollars. Seventh. Because the items surcharged and falsified in plaintiffs' bill, and found so properly surcharged and falsified by Commissioner Thompson, and therefore charged against this defendant in said Thompson's report, are not errors, as charged by said bill and repoi't. Eighth. Because there is no evidence in this cause showing that this defendant has been guilty of such negligence or dereliction of duty to his wards as will justify charging this defendant with compound interest. Ninth. For other reasons apparent upon the face of said report and from the evidence and exhibits in this cause.\\\"\\nOn the 29th day of May, 1895, the case was heard upon the second report of M. M. Thompson, the amended bill of plaintiffs, the demurrer thereto of W. E. Hill and J. B. Sandusky, their answers to the original bill, replications, and the exceptions of said commissioner's report, and the court overruled the demurrers to said bill and amended bill, and also overruled the exception of said Hill and San-dusky to the report of Commissioner Thompson made at the September term, 1894, but recommitted said report to said commissioner for reasons stated in said decree. On the 21st day of August, 1895, said commissioner returned his second report, which was excepted to by W. E. Hill and J. B. Sandusky for the following reasons: \\\"(^Because said report is in effect an argument in favor of the contentions of the plaintiffs in the cause, and not such a report as is contemplated by the law creating and governing commissioners in chancery. (2) Because the finding and report of said commissioner that the defendant W. E. Hill did not give the bond of two thousand and five hundred dollars which he was directed to give by the decree of the circuit court made May 15, 1885, in the chancery cause of said Hill, Guardian v. Ella Kester et als., before making sale of the real estate in said cause described, or receiving money by virtue of said sale, is contrary to the evidence that was before said commissioner; the evidence of said W. E. Hill, which was in no way contradicted, or who was not impeached, showing conclusively that said bond was given and the legal inference being that said bond, having been required by the decrees in said cause, was necessarily given before the court would permit said Hill to make said sale or receive money by virtue thereof. (3) Also because the finding and report of said commissioner \\u2022 that the bond of five huudred dollars for each ward required by the decree of January 29, 1886, in the chancery cause of W. E. Hill Guardian v. Ella Kester et als., was not given is likewise contrary to the evidence before said commissioner. (4) Because said commissioner erroneously charges the defendant W. E. Hill and his sureties, J. B. Sandusky and Henry Ross, in his original bond, as guardian, with the proceeds of the sale of the real estate made by said Hill in said chancery cause of W. E. Hill, Guardian, etc., v. Ella Kester et als., when in fact, if said Hill had not accounted for the said proceeds of the sale of said real estate, his sureties, Amaziah Hill and Edgar Hill, in the bonds given in open court in said cause are liable, and not his sureties in his original and general bond as guardian. (5) Because said commissioner had no legal right and erred by charging the defendants J. B. Sandusky and Henry Ross with the proceeds of the sale of the real estate made by said Hill in the aforesaid chancery cause of W. E. Hill, Guardian v. Ella Kester et al. as surety on said. Hill's original bond as guardian for the plaintiffs in this canse. (6) Because said commissioner erred in charging the defendants W. E. Hill, J. B. Sandusky, and Henry Ross with the sum of two hundred and fifty seven dollars compound interest from May 1, 1886, to September 10, 1895, on five hundred and eighty one dollars and forty six cents; also because said commissioner erred in charging said defendants with one thousand one hundred and one dollars and ninety cents compound interest to September 1, 1895, on the M. E. Kester note for one thousand, three hundred and thirty three dollars and forty six cents. (7) Because said commissioner erred in charging the aforesaid W. E. Hill, as guardian, with the compound interest on the aforesaid M. E. Kester note, and therefore the said Sandusky and Ross, and Hill's sureties on his original bond as guardian. (8) Because said commissioner erred in charging defendants Hill, Ross, and San-dusky with three hundred and fifty eight dollars and forty eight cents compound interest to September 10, 1895, on four hundred and thirty five dollars and eighty three cents, 'amount received of W. H. Kester, Adm'r.' (9) Because said commissioner erred in charging said defendants with thirty one dollars and eighteen cents compound interest to September 10, 1885, on fifty dollars rent of real estate April 17, 1884, to January 29, 1886. (10) Because said commissioner erred in reporting that the defendants W. E. Hill and H. C. Ross are insolvent. (11) Because said commissioner erred in finding that the defendant J. B. San-dusky is ultimately liable for the aggregate sum of three thousand, six hundred and eighty five dollars and eighty three cents, as ascertained by said report. (12) Because said commissioner has not reported the facts to the court in this cause, as he is required by law so to do. J. J. Davis, W. Scott, Attorneys for Defendants.\\\"\\n\\\" Cecil M. Kester et als. v. W. E. Hill et al. Additional Exception to Com. Thompson's Report. In addition to the exception heretofore filed in this cause, the defendants W. E. Hill and J. B. Sandusky except to the report ot Commissioner Thompson for the following reasons: First. Because said Thompson has charged said Hill and San- dusky with the proceeds of real estate sold by Hill, iu proceeding instituted by him as guardian for the plaintiffs for the sale of said real estate, when it appears in this cause that iu said proceedings said Hill was required to give bond pursuant to the provisions of chapter 83 of the Code of West Virginia, and therefore the proceeds of said sale of real estate can not be charged agaiust said Hill, and his surety, J. B. Sandusky, on his bond as guardian, in the proceedings now instituted on said bond or in this cause. Second. Because said Hill is charged in said report with the proceeds of sale of real estate of his wards made by him in a suit brought by him to sell said real estate, iu which suit he was required by the court to give bond and good security for the I'aithful application of the fund that came into his hands from the sale of said real estate, and did give such bond with sureties other than the sureties on his bond as guardian. W. Scott, Attorney for Hill & Sandusky.\\\"\\nOn the 21st day of September, 1895, the cause was finally heard, and the court ascertained that said Hill as guardian, and his sureties, J. B. Sandusky and Henry C. Boss, were liable to the plaintiffs in the sum of three thousand six hundred and eighty five dollars and eighty three cents as of the 10th day of September, 1895; also ascertained the amounts due to said ward respectively, and decreed against the said Hill, and Sandusky and Boss for the amounts so found; held that said J. B. Sandusky was improperly appointed guardian of plaintiffs without the removal of said Hill; ascertained that a considerable amount of personal property, amounting on the 10th day of September, 1895, to one thousand four hundred and thirty seven dollars and sixteen cents, came into the hands of said J. B. Sandusky, and ascertained the amount thereof due to each of said plaintiffs; removed said Hill from the guardianship of plaintiffs, and revoked his authority as such, and appointed John J. Alexander in his room and stead; and from this decree the defendants W. E. Hill and J. B. Sandusky took this appeal.\\nThe appellants assign no less than sixteen grounds of error. The first is as to the action of the court in overruling the plaintiffs' bill and amended bill, and the sixth as to the action of the court in charging J. B. Sandusky and H. C. Boss, the sureties of W. E. Hill in his original bond as guardian, with the proceeds of the real, estate of Hill's wards sold by him under and by virtue of the decrees of the circuit court in the cause of W. E. Hill, guardian, etc., v. Ella Kester et al., a suit brought by said guardian to sell the real estate of his wards. As this point was assigned as one of the grounds of demurrer, we may properly consider these two assignments of error together. This suit was brought by W. E. Hill, guardian, under section 2 of chapter 83 of the Code of West Virginia, to obtain a decree for the sale of his wards' real estate. Sections 3, 4, and 5 provide the manner in which said suit may be proceeded in. Section 6 provides, neither the guardian nor guardian ad litem or committee or trustee shall be a purchaser, either directly or indirectly; and section 7 provides that the proceeds of sale shall be invested under the direction of the court for the use and benefit of the persons entitled to the estate; but, into whosesoever hands the said proceeds may be placed, the court shall take ample security, and from time to time require additional security, if necessary, and make other proper orders for the faithful application of the fund, and for the management and preservation of any property or securities in which the same may be invested, and for the protection of the rights of all persons interested therein, whether such rights be vested or contingent; and section 15 provides that, \\\"before such sale is made the guardian shall in open court enter into bond with approved security in a penalty equal to double the value of the estate to be sold, conditioned for the faithful application of the proceeds of sale; such bond shall be payable to the state and the court may thereafter order a new bond with other security to be given if deemed necessary,\\\" and section 16 provides that \\\"the provisions of section 7 shall govern as to the application of the proceeds of sale.\\\" Now, the sections above quoted of chapter 83 clearly indicate that the sale of real estate in pursuance of a suit instituted thereunder shall be made under the immediate supervision of the court, and that the court shall see to it that a proper bond is given to protect the proceeds of sale from waste, and conditioned for the faithful application of the proceeds of sale. It is manifestly the intention of the statute that the proper administration of the proceeds of the sale of real estate under this statute shall be provided for by the court, and protected under a bond entirely different from the guardian's bond. In the case under consideration we must presume .that the court did its duty, and in fact the decree shows that such bond was required by the court; and W. E. Hill, in his deposition, swears that he gave bond in open court before receiving any money, and that bis securities were Amaziah Hill and Edgar Hill, and that he always thought the bond was recorded, and that the bond was approved as sufficient by the court. Whose fault is it that the bond is lost, or not forthcoming, we can not say. Now, section 7 of chapter 82 provides that every guardian who shall be appointed as aforesaid, and give bond when required, shall have the custody of his ward, and the possession, care, and management of his estate, real and personal, and out of the proceeds of such estate shall provide for his maintenance and educa.tion, etc. This does not authorize him to sell the real estate, only to deal with the rents and profits. If he thinks a sale advisable, he must file his bill under chapter 83 of the Code, or proceed in a summary way, as provided in see-ion 12 of said chapter; and in both instances the proceeds shall be invested under the direction of the court, and, nto whosesoever hands the proceeds may be placed, the court shall take ample security, and require bond in open court of the guardian, with approved security, in a penalty double the value of the estate to be sold, conditioned for the faithful application of the proceeds before a sale is made, showing clearly that it is not the intention of the law that the guardian's bond is to be looked to; and this is reasonable, because the proceeds of the real estate might be greatly in excess of the value of the personalty and rents that would go into the guardian's hands. So in 9 Am. & Eng. Enc. Law, at page 141, it is said: \\\"Where a special bond for the sale of real estate of the ward has been given, the sureties on such bond, and not those on the guardian's general bond, are liable for the guardian's misuse of the proceeds of such sale.\\\" See Williams v. Morton, 38 Me. 47, where it is held: \\\"A sale and conveyance of the real estate of his wards by their guardian under a license of the probate court, without complying with the requirement of the statute as to giving bond, will vest no title in the grantee; and the money paid for such a deed may be recovered back in an action upon its covenants.\\\" \\\"The bond given by a guardian for the faithful performance of his duties is no security for the sale and avails of real estate of his wards sold under license, nor will the omission to give bond under such license be a breach of the conditions of the general bond.\\\" \\\"The condition in a guardian's bond that he shall render an account so often as required by the judge of probate is not broken where he has no personal estate of his wards, and had seasonably returned an inventory of their real estate, although he may have sold such real estate under a license, and been cited and neglected to render an account.\\\" See, also, Fay v. Taylor, 11 Metc. (Mass.) 529, and other authorities there cited; and also the case of State v. Harlbridge, 43 Mo. App. 16, where it is held: \\\"The statutes of this state require guardians and curators, upon their appointment, to give bond in the court appointing them (the probate court) in double the value of the estate or interest to be committed to their care. These statutes further authorize a guardian to sell the real estate of his ward on procuring an appropriate order of the circuit court therefor, and entering into bond to conduct the sale with fidelity to the interests of his ward, and faithfully account for the proceeds. Held that the sureties on the general bond of the guardian were not accountable for the proceeds of the realty thus sold, and that this was so notwithstanding that the guardian charged himself with these proceeds in his general accounts in the probate court.\\\" And in the recent case, decided by this Court, of Findley v. Findley, 42 W. Va. 372 (26 S. E. \\u2014 ) this Court held that: \\\"Where a guardian gives bond, and later land of his ward is sold under decree, and he gives an additional bond to secure its proceeds, and the latter bond is primarily liable for such proceeds.\\\" I, however, go further, and hold that the securities in the general bond, under such circumstances, are not liable for the proper application and accounting for the proceeds of the sale of the real estate. It was not a part of their undertaking. At the time they became sureties in the original guardian's bond, the gaurdian was not authorized to sell the real estate; and the statute provides that when he is so authorized by decree of court, before making sale or receiving the proceeds he shall give bond in double the amount, for the faithful application of the proceeds of sale; and section 7, chapter 83, provides that \\\"the proceeds of sale shall be invested under the direction of the court for the use and benefit of the persons entitled to the estate, and that, into whosesoever hands the said proceeds may be placed, the court shall take ample security, and from time to time require additional security, if necessary,\\\" etc. showing the intention that the proceeds of sale should be administered by the court, and not by the guardian under his original bond. For these reasons I think the demurrer to the plaintiffs' bill and amended bill should have been sustained so far as said bill and amended bill seek to charge the defendant W. E. Hill's sureties in his original bond as guardian with the proceeds of the sale of the real estate belonging to his wards, the plaintiffs in this suit; and for the same reason I am of opinion that the court erred in overruling the fourth and fifth exceptions to the last report of M. M. Thompson, commissioner; also in overruling exceptions Nos. 2 and 3, because the evidence shows that the bonds mentioned in said exceptions were given.\\nThe decree complained of is therefore reversed so far as it holds the sureties of W. E. Hill as guardian in the bond given at the time of his appointment as such liable for the proceeds of the sale of the real estate in the bills mentioned, and said decree is affirmed so far as it holds that J. E. San-dusky was improperly appointed as guardian of plaintiffs without the removal of said W. E. Hill as such guardian; and, it appearing that a considerable sum of money belonging to plaintiffs went into the hands of J. B. Sandusky after he was so improperly appointed guardian of plaintiffs, this cause is remanded to the circuit court of Harrison county, in order that it may be properly ascertained from what source the money was derived which went into the hands of said J. B. Sandusky as the property of these plaintiffs, and that proper decrees may be made as to its collection and investment for the benefit of plaintiffs, and for the settlements of the accounts of said W. E. Hill as guardian; with costs to the appellants.\"}"
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+"{\"id\": \"8639822\", \"name\": \"Battin v. Woods et al.\", \"name_abbreviation\": \"Battin v. Woods\", \"decision_date\": \"1885-11-21\", \"docket_number\": \"\", \"first_page\": \"58\", \"last_page\": \"75\", \"citations\": \"27 W. Va. 58\", \"volume\": \"27\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T23:48:09.124353+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges Green and Snyder concurred with Judge Woods.\", \"parties\": \"Battin v. Woods et al.\", \"head_matter\": \"CHARLESTON.\\nBattin v. Woods et al.\\nSubmitted June 17, 1885.\\nDecided November 21, 1885.\\n1. A suit brought to set aside a tax-deed, because the lands were redeemed, and because the party, to whom the deed was made, sustained such relation to the land, that he could not acquire a tax- . title thereto, and it does not appear that any adverse possession is claimed, is not barred by the statute of limitations, (p. 63.)\\n2. If one of several tenants in common purchases the land held in common at a tax-sale or from a stranger, who bought it at such tax-sale, such title so acquired will enure to the benefit of all the tenants in common, (p. 66.)\\n8. Where a number of persons purchase a tract of land, and the title is conveyed to two of them, who execute a declaration of trust that they hold in trust for themselves and the other purchasers, and two others of such purchasers buy a tax-title to the whole, this wili be regarded as a redemption of the land and will enure to the benefit of all'the eesiuis que trust, (p. 70.)\\n4. Where lands, have been sold for the non-payment of taxes and purchased by individuals, and the recorder or the clerk of the county court of the proper county has included the same in the list of redemptions required by sec. 16 of ch. 31 of the Code to be made by him, such list is primary evidence of the redemption of the lands specified therein ; and a copy thereof attested by the clerk of the county court, in whose office the same is, rqay be admitted in evidence in lieu of the original. \\u2014 Johnson, President, dissenting, (p. 74.)\\nJohn-A. .Hutchinson for appellant.\\nThomas IS. Davis for appellee.\", \"word_count\": \"6755\", \"char_count\": \"37344\", \"text\": \"Johnson, President :\\nIn April 1882 the plaintiff filed his bill in the circuit court of Ritchie, in which he alleged that in 1864 during the great oil excitement of West Virginia a number of parties bought from one Christopher Hobden a tract of 1,250 awes of land for the sum of $50,000; that the conveyance was made to the plaintiff and Henry Holdridge now deceased; that after-wards the said grantees, to whom the land had been granted in fee, carrying out the true intention of the purchasers made their, certaiu declaration of trust in due . and proper form, showing that they held the said, land in trust for themselves and the other purchasers, in proportion to amount of purchase-money paid by each; that among said purchasers were the defendant, William A. Bighter, who had paid one tenth of said pnrchase-mouey and was entitled to one tenth of said land, and also the defendant, William H. Fogg, who had paid one fifth of said purchase-money and was entitled to one fifth of said land; that according to instructions the said trustees-conveyed 416 67-100 acres of said land to the Ilasel-ton Petroleum Company; that the taxes on the land for the year 1865 were properly assessed against Hobden, the trustee having failed to have the deed recorded and transfer made before said taxes were assessed; that the trustees neglected to look after said land and pay the taxes, and the land was returned delinquent for the taxes of 1865, and on September 10, 1867, it was sold for taxes and purchased by J. P. Harris and M. M. Hitchcock, for $13.51; that in in 1868 the said Bighter, who was a non-resident, went to West Virginia and instead of redeeming said tract of land, took from, said purchasers an assignment of the sheriff's receipt to said purchaser; that within the time for redemption of said land plaintiffs and trustee Holdridge sent an agent J. W. Howe to West Virginia to look after said land and pay the taxes; when he arrived he was informed of the sale for taxes, and that the purchasers had assigned their interest to Bighter; that Bighter not being a resident of the county in which the land was sold, said Howe paid to the recorder $18.44, the amount necessary to redeem the land as appears by the records of said county of Bitchie, a copy of which record exhibited with the bill marked \\\"CC\\\" is as follows:\\nThe bill further alleges, that in the year 1870 J. M. Woods, then recorder oi the county of Ritchie, made a deed for said land, notwithstanding said redemption, to Horatio N. Twombley, as assignee of William A. Righter; that Twombley had knowledge from the records that the land had been redeemed within the time prescribed by the law, and the assignment made by Righter to Twombley was after the redemption of the land. The bill charges the said tax-deed is fraudulent and void; that it was made without authority of law. It also charges, that Twomb-ley has conveyed 416 67-100 acres of said land to Righter and exhibits the tax-deed; and that he has conveyed the residue of the tract to Wm. H. Fogg and charges that said Righter and Fogg being cesiuis que trust in said trust declared by the plaintiff and his co-trustee Holdridge, they .should under the circumstances and in a court of equity will be held as trustees for themselves and the other parties named in said declaration of trust and those to whom the trustees may have sold any of the land. The bill charges that said deed is a cloud on plaintiff's legal title to said land, and prays, that said tax-deed may be declared void and of no effect, and that the deeds made by Twombley to Righter and to Fogg may respectively be declared void, and for general relief. The bill does not allege that the plaintiff ever had actual possession of said land.\\nWilliam A. Righter and William H. Fogg answered the bill and admit most of the allegations and charges in the bill; but they deny that the land was redeemed; aver that the trustees did not within the time prescribed by law file in the proper office any certificates or writing, receipts or vouchers showing a redemption of said land, \\\"and that the fact is that the said Horatio N. Twombley was a purchaser of said certificate of sale, and the bona fide assignee thereof for a valuable consideration and without notice of any such supposed redemption, and is wholly unaffected by such attempted redemption of said land by said Baffin and Holdridge.\\\" The answer also avers that the plaintiff finding that the attempt to redeem was not in compliance with the law, voluntarily demanded and received said money so deposited with the recorder; and that the said recorder on January 22, 1870, repaid and refunded said money to the agent arid .attorney of said Battin and Holdridge and .thereby cancelled and annulled their attempted act of redemption, \\\"as will fully appear by reference- to the original papers on file in the clerk's office of the county court of Ritchie county.\\\" They deny that the tax-deed is null and void, deny they obtained the assignment after the alleged redemption, and aver that the deed .was not made, until after the redemption money had been withdrawn. They deny that they hold said lands for any parties other than themselves, aver-that they purchased their interest in said land for a valuable consideration without any notice'of any right or title in the plaintiff; that they had no partin causing the laud to be returned delinquent; that they have not occupied any fiduciary relation toward the plaintiff or other parties interested in said laud, and are not bound to convey to plaintiff said land. \\\"They plead in bar of the plaintiff's; suit in this behalf, that more than five years have elapsed, since the said deed was made by the recorder aforesaid to the said Horatio N. -Twombley for the said tract of 1,250 acres of land, and that if the plaintiff, as trustee or otherwise, ever at any time had any cause of action or suit' against these respondents or the said Twombley in relation to the said land or the title thereto, it arose more than five years before the institution of this suit,\\\" &c.\\nThey further aver that before he could be entertained in a court of equity lor such relief as he seeks, the plaintiff is required to tender and pay into court all the taxes, expenses, interest and charges, due and heretofore paid on said land, which he failed and neglected to pay, and which have in good faith been paid by said Twombley and the respondents, &c.\\nStephen D. Law and the Haselton Petroleum Company also separately answered the bill. The deposition of the plaintiff, Joseph Baffin, was taken, in which he sustains the material allegations of the bill. The only other deposition taken was that o\\u00ed S. D. Law, the secretary of the Haselton Petroleum Company,- in which he does not contradict the allegations of. the bill.\\nOn November ,14, 1882, the cause was heard upon the bill and exhibits, the answers of Law and of the Haselton Petroleum.. Company, and the answer of Righter and Fogg, with general replications thereto, and on the depositions filed ; and the court cancelled the several .deeds from the recorder to Twbmbley and also the deed from said Twombley to Bighter for a portion of said land, and also the deed from said Twombly to Fogg for the residue of said tract of land.\\nFx'om this decree William A. Bighter appealed.\\nBighter here insists,' that said decree is erroneous, because said suit is barred by the statute of limitations. The only statute of limitations of five years to a suit to set aside a tax-deed is sec. 27 of eh. 31 of the Code. That section provides : \\\" If the owner of any real estate sold for the nonpayment of taxes thereon, his heirs or assigns, claim that the taxes on account of which the sale was. made, were not in arrears, he may within five years after the deed shall have been obtained and admitted to record, institute a suit in equity to have said sale and deed declared void,\\\" &c. This is not a suit of that character. It is not pretended that the taxes, for the non-payment of which, the land was sold toere not in arrears. On the contrary it is admitted in the bill that they were unpaid. Then is there any statute of limitations barring a suit like this? In Bradley v. Ewart, 18 W. Va. 598, it was held, that sec. 27 of ch. 31 of the Code did not apply to a case like that, where the land was improperly on the assessor's books and sold in an improper name, and that in such a case at any time the sale and deed may be declared void.\\nHere it is alleged in the bill, that the land was redeemed and also that the defendants Bighter and Fogg being interested in the land corild not. acquire a title under a tax-sale, but such title so acquired would be regarded as a redemption of the land for all the parties interested therein. . There is here no claim of adverse possession, for the record does not disclose that there were any o\\u00ed the parties in the actual pos-. session of the land. The suit is not barred by limitation.\\nIt is further insisted that the record does, not show that the land was redeemed; that such redemption is not proved in the record. The bill charges that the land within the time prescribed by the statute was redeemed and vouches, not the receipt of the recorder for the redemption-money, but merely the list with the certificate thereto, as appears in the statement of the case. The answer most emphatically denies, that the land was redeemed. The appellant by his counsel claims, that, where the law requires a certain document or record to be kept by a public officer as a memorial of a fact, such document or record is the best evidence of such fact; and such fact can be primarily proved only by such document or record, and cites 1 Wharton Ev., secs. 60, 63, 65; 1 Greenl. Ev., secs. 82 to 86; Peterson v. Taylor, 15 Ga. 483; Phares v. State, 3 W. Va. 567. These authorities clearly sustain the proposition claimed, and it is settled law. Mr. Wharton, in sec. 60 supra gives the reason of the rule as follows: \\\" The policy of the law, independent of other reasons, requires that its original, if practicable, should be produced. For, (1) lex seripta manet, while memory as to words is treacherous ; and even though not memory but a written copy be offered, such copy has between it and the original the possibility of mistake or of falsification. Then (2) if a party be permitted to hold back the original, when he could produce it, and substitute for it a secondary proof, a door would be open to fraud. And (3) unless such a rule be inexorably applied an end would be put to that accurate and thorough presentation of facts, which is essential to the administration of justice. If no evidence is tobe rejected, because it is secondary, a single witness would be enabled to swear, either primarily or secondarily, either by first hand or second hand impressions, to a whole ease, documentary and oral; the testimony of a witness in such case would be a mere conclusion of law, derived from his own notions of facts, with this peculiarity, that the law would be made by himself for the occasion; and the functions of both judge and jury would be dispensed with.\\\"\\nIn 1 Greenl. Ev., sec. 84, it is said: \\\"The question whether evidence is primary or secondary has reference to the nature of the case in the abstract, and not to the peculiar circumstances, under which the party in the particular cause on trial may be placed. It is a distinction of law and not of fact; referring only to the quality, and not to the strength of the proof. Evidence which carries on its face no indication that better remains behind it is not secondary, but primary. And though all information must be traced to its source, if possible, yet if there are several distinct soui'ces of informa tion o\\u00ed the same fact, it is not ordinarily necessary to show that they have all been exhausted before secondary evidence can be resorted to.\\\"\\nIs the evidence relied on by the appellee primary or secondary? Sec. 15 of ch. 31 of the Code provides, that the owner of any real estate so sold may redeem, &c., by paying the amount specified in the sherifl's receipt and such additional taxes, as may have been paid by the purchaser with interest on the purchase-money and taxes at the rate of twelve per cent, per annum,. The money under this section is to be paid \\\"to the purchaser, his heirs, or assigns.\\\" Sec. 16 provides that: \\\"What is authorized to be paid by the preceding section may be paid by such person as is mentioned therein, within the said one year, to the recorder of the county, in any case in which the purchaser, his heirs or assigns, may refuse to receive the same, or may not reside, or can not be found in the county. And a, receipt therefor, shoiuing where and by whom the payment was made, and the. amount paid, shall be signed by the recorder, and a duplicate filed thereof by him in his office.\\\" Again in same section : \\\" One of said duplicate receipts or writings shall be filed with the recorder of the county in which said real estate was sold, on or before the day on which the right to redeem the same will expire, under the provisions of the said sec. 15; and the recorder shall endorse on both said duplicates, the fact and time of such filing. If the same be not so filed, such redemption shall be void, as to creditors and subsequent assignees of the benefit of the purchase of said real estate, from the purchaser thereof, his heirs, or assigns, for a valuable consideration without notice, at any time before the sam\\u00e9is so filed. The recorder of every county shall, in the mouth of June in each year in which real estate is required to be sold for the non-payment of taxes thereon, make a list of all real estate redeemed as aforesaid, not before included in a similar list.\\\"\\nIt is clear that the list referred to in the last part of the section is by the recorder made up from the duplicate receipts required to be filed, and are therefore not the best evidence of the redemption of the land. In making up such lists there is certainly the possibility of mistakes, because the recorder makes them up from receipts, which he has given. Such evidence therefore \\\"carries on its. face indications that better remain behind.\\\" It is therefore secondary evidence and is not admissible without showing the loss of the better evidence, or that for some reason it can not be produced. The deed from the recorder is prima facie evidence of all the material facts cited therein, and is valid and operative unless the prima fade evidence is rebutted. Duquasie v. Harris, 16 W. Va. 354.\\nOne of the material things stated in the deed is, that the land had not been redeemed within the time prescribed by law. This is not rebutted by showing the list above referred to merely. If the receipt for the redemption-money had been produced, that would have been sufficient; or if its execution had been proved, and its loss accounted for then secondary evidence might have been produced which would have been sufficient to rebut the prima fade evidence of the deed itself. In my opinion, it is not legally shown that the land was redeemed. But as to the conclusion that the list was secondary evidence my associates do not agree with me, but think it is primary evidence and shows that the land was redeemed.\\nBut it is insisted by appellee's counsel, that the defendants under the circumstances of this cause could not acquire a tax-title to the land, they being in equity interested therein as part owners, the plaintiff and his co-trustee merely holding the legal title in trust for themselves and the others including the defendants, who were as purchasers entitled to an interest in the land. This Court in Williamson v. Russell, 18 W. Va. 623-4, approved what Judge Cooley says in his work on Taxation 315, as follows : \\\"Some persons from their relation to the cause or to the tax are precluded from being purchasers at a tax-sale by the sheriff. The title to be transferred at such sale is one based on the default of the person who owes the government the duty to pay the tax. But one person may owe this duty to the government and another may owe it to the owner of the land. Such a case may exist where the land is occupied by a tenant, who by the lease has obligated himself to pay taxes. Where that is the relation of the parties to the land, it would cause a shock to the moral sense, if the law were to permit the tenant to neglect his duty and cut ofi the lessor's title by buying in the laud at a tax-sale. There is a general principle applicable to such cases; that a purchase made by one, whose duty it was to pay the taxes, shall operate as a payment only; he shall acquire no rights as against a third party by neglect of duty, which he owed to such party. This principle is universal and is so entirely reasonable as scarcely to need the support ot authorities to show the existence of the duty and the disqualification is made out in every instance. \\\" In carrying out this just rule it has been held, that owners o\\u00ed land must pay the tax. Kelsey v. Abbott, 13 Cal. 609.\\nIf a person is in possession of land claiming it as his own, it is bis duty to pay the tax, although he has no paper-title and is a trespasser; and under such circumstances he can not acquire an outstanding title by neglecting to pay the taxes and allowing the land to be sold for the same and purchasing it himself. Barrett v. Amerein, 36 Cal. 322.\\nOne, whose duty it was to pay the taxes on land, can not gain an advantage in respect to the title, by allowing the land to be sold for taxes and buying it in himself or buying it from a stranger, who bought it at the sale. Coppinger v. Rice, 33 Cal. 408; Mays v. Shear, 25 Cal. 45; Garwood v. Hastings, 38 Cal. 217.\\nIf one of several tenants in common purchase the land held in common at a tax-sale or from a stranger, who bought it at such tax-sale, such title so acquired will enure to the benefit of all the tenants in common. Floyd v. Lynch, 28 Pa. St. 419; Maul v. Rider, 51 Pa. St. 377; Page v. Webster, 8 Mich. 363; Butler v. Porter, 13 Mich. 292; Dubois v. Campan, 24 Mich. 360; Baker v. Whiting, 3 Sumn. 475; Downer v. Smith, 38 Vt. 464.\\nThis principle has been modified in Pennsylvania, where it has been held, that after a sale of laud for taxes to a strauger, and the time for redemption has passed, one of the tenants in common may purchase the land from the stranger, who has received his deed, and such purchase will not enure to the benefit of the other tenants in common. Kirkpatrick v. Mathart, 4 W. & S. 251; Reinbolt v. Improvement Co., 29 Pa. St. 139.\\nIt is also held that the heir can not acquire a tax-title to the land descended to Mmseli and others Irom his ancestors. Dubois v. Campan, 24 Mich. 360.\\nIt has been held that a mortgagee can not buy in lands under mortgage at a tax-sale of such land and defeat the mortgager. Fry v. Bank, 11 Ill. 367.\\nThe grantee of a mortgager of lauds under mortgage, can not take title as against the mortgagee by tax-deed for taxes, which the mortgager or those holding under him were in duty bound to pay. Avery v. Judd, 21 Wis. 264.\\nThe agent of the owner of laud can not acquire tax-title to the land for which he is ageut. Krutz v. Fisher, 8 Kans. 90; McMahon v. McGraw, 26 Wis. 614; Morris v. Joseph, 1 W. Va. 256; Franks v. Morris, 9 W. Va. 664.\\nA party, who sued out an injunction to restrain the enforcement of a mechanic's lien and, pending the injunction, obtained a tax-deed for the property, was held to be guilty of attempting an unconscientious advantage and was not allowed to use his tax-title to defeat the mechanic's lien, and the tax-title was held to inure to the benefit of the parties interested in thedand. McLaughlin v. Green, 48 Miss. 175.\\nIt has also been held uniformly, that a person leasing lands and bound to pay the taxes could not acquire a tax-title to the land during the continuance of the lease. Crithers v. Weaver, 7 Kan. 110; Williamson v. Russell, 18 W. Va. 612.\\nIn Cooley v. Waterman, 16 Mich. 366, it was held, that where the owner of a distinct tract of laud neglects to pay his taxes thereon, and the same is sold jointly with the land of others for the non-payment of taxes, and he becomes the purchaser of the whole, the sale is void, the purchaser being in default in not paying his own tax. In delivering the opinion of the court, Graves, judge, said: \\\"The counsel for the defendant endeavored to distinguish this case from Page v. Webster, 8 Mich. 263, and Butler v. Porter, 13 Id. 292. He took the position that these cases were both decided on the ground of ownership by the parties as tenants in common and the like. It will be seen however in recurring to the opinion of-the majority of the court in the last suit that such was not the case. At page 302 my brother Christiancy speaking for a majority of the court uses this language: \\\"But to say nothing of the tax-titles, he (Butler) had a good title to one undivided third of the lot; and the tax on one' third having been paid by Guild, it is evident his tax-purchase of two thirds for the taxes of the year 1852, must have included Ids own one third, for the non-payment of the tax upon which, he was himself in default to the State. This brings this sale precisely within the letter and spirit of the rule laid down by this court in Page v. Webster, 8 Mich. 263. As owner of the one third, it was his duty to have paid his portion of the tax before sale. It is insisted by counsel for the plaintiff in error (defendant below,) that this duty is only imposed by possession. This is not the ground of the decision in Page v. Webster. The duty springs from ownership. The sale is an entire thing based upon the delinquency in the payment of the taxes for which the sale is made, and the purchaser cannot be allowed to acquire the title of others in the property by a sale, based in part upon his own default. ~We are entirely satisfied with the principle. of that decision, and see no reason for departing from it. If the two parcels, separately owned by the parties, are so placed as to be involved in the same, default, and the same sale, as in this instance, the case must be governed by the rule applied under the like circumstances when the estates of the parties are in the same parcel.\\\"\\nIn Varney v. Stevens, 22 Me. 331, it was held that a life-tenant was bound to pay the taxes and could not acquire title of the land at a tax-sale. In that case it appeared, that Johnathan Varney by his will devised the whole of his real estate to his wife, Derothy. Varney, for life. The demandant, Jonathan Varney, was an heir at law of the testator. Borne time after the death of the testator, the defendant Isaac Stevens married the widow, who was the life-tenant. Stevens offered in evidence against the demand a deed for the demanded premises from Wood-bury,Collector of the United States direct tax to David Howe dated August 11, 1818, also a deed fronTHowe to Staples of same premises dated same day, and a deed from Staples to Isaac Stevens for same premises dated January 9, 1819. All the deeds were duly acknowledged and recorded. The deeds were ruled out by the trial-court, and the tenant thereby became defaulted, but the default was to be taken off, if the deeds ought to have been admitted in evidence and could have availed the tenant by way of defence or as a foundation for a claim for betterments made by him since the deed from Staples to him. In delivering the opinion of the court Shep-ley, J.,said:\\n\\\"The tenant offered certain deeds showing a sale of the premises by a collector of taxes and a release of that title to himself. If they had been admitted he would have taken under such re-lease according to his title, and the revers-ioners according to theirs. 'A re-lease of a right made to a particular tenant for life, or in tail, shall aid and benefit him, or them, in the remainder.' Co. Litt. sec. 453 and 267 b. It was moreover the duty of the tenant for life to cause all taxes assessed upon the estate, during his tenancy to be paid, and by neglecting it, and thereby subjecting the estate to a sale he committed a wrong against the reversioners. And when he received a release of the title, if any was acquired under that sale, he would be considered as intending to discharge his duty by relieving the estate from that incumbrance. To neglect to pay the taxes for the purpose of causing a sale of the estate to enable him to destroy the rights of the rever-sioners, would have been to commit a fraud upon their rights. This is not to be presumed. On the contrary he must be presumed to have intended by procuring that release, to extinguish the title under that sale.\\\"\\nBattin and IToldridge, as the record shows, were interested with the other parties mentioned in the declaration of trusts as purchasers of the 1,250 acres of land from Ilobden. The deed by agreement of the parties was made to them to hold the land in trust for themselves and the other purchasers. They held the naked legal title and executed a declaration of trust, that showed for what purpose they held it. If the deed had been made directly to the parties, who purchased, they would have been joint-tenants or tenants in common. In equity for the purposes of this suit they must be regarded as tenants in common, and the rule, which we have above referred to, well sustained by authority must govern. A tenant in common can not during such tenancy acquire a tax-title to the land so held, so as to defeat.the other tenants in common ; and such purchase of the land, either at the tax-sale or of a stranger is a redemption of the land and will enure to the benefit ot all the tenants in common. This rule will also include the ITaselton Petroleum Company, for the record shows, that by consent of the parties interested said company bought an undivided 416 67-100 acres in said tract of 1,250, thereby making said company also a tenant in common.\\nIn this case the question does not arise, that was decided in 4 S. & W. and 29 Pa. St., supra, that where land owned by tenants in common had been bought by a stranger at the tax-sale, and the time for redemption has passed, and the stranger receives his tax-deed, then one tenant in common might defeat the title of the others by buying the land from the stranger. The Pennsylvania cases, as far as I have found, are not in accord with the current of authority. But this is entirely a different ease. Here the sale was made to strangers, Harris and Hitchcock, for $ 13.51, on September 10, 1867. On the same day for the expressed consideration of $17.00, Harris and Hitchcock assigned the sheriff's receipt to William A. Bighter. At that moment the land was redeemed for the benefit of all the tenants in common. Bighter could not legally transfer that receipt to any one. The evidence from the exhibits filed is very strong, that Bighter and Fogg had conspired to possess themselves of the whole title to said land. After the time for redemption had expired, to-wit: on November 23-, 1869, instead of asking for a deed himself, Bighter assigned the receipt to Horatio N. Twom-bley, who on January 22, 1870, obtained the tax-deed. He held the said deed until June 7, 1881, when for the consideration of $1.00, he conveyed without general warranty by metes and bounds 416 68-100 acres of said laud to the defendant, William A. Bighter. The bill alleges he conveyed the residue of the land to the defendant Fogg, who admits it. The deed is not exhibited. Battin says in his deposition : \\\"He learned that Fogg claimed to have a tax-deed for that part of the land not claimed by Bighter, Twombley having parted with all his claim.\\\" The court did not err in cancelling said deeds, and declaring that Battin, as surviving trustee, held said lands for the parties interested therein.\\nIt is not clear under the circumstances of this case, whether the taxes ought to have been refunded to Bighter; it is not except as to the $17.00, shown that he paid any. Bor this of course the decree would not be reversed. Whatever taxes Righter and Rogg have paid, with any other legitimate expenses incurred by them, if any, for the benefit of all the tenants in .common, they may recover in a suit brought for that purpose. The purpose of this suit was to remove a cloud from the title to the land. We see no error in the decree for which it should be reversed, and it is therefore affirmed.\\nARRIRM\\u00c9D.\"}"
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+"{\"id\": \"8639869\", \"name\": \"Fry et al. v. Campbell's Creek Coal Co.\", \"name_abbreviation\": \"Fry v. Campbell's Creek Coal Co.\", \"decision_date\": \"1893-02-01\", \"docket_number\": \"\", \"first_page\": \"604\", \"last_page\": \"605\", \"citations\": \"37 W. Va. 604\", \"volume\": \"37\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T22:07:31.424599+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Fry et al. v. Campbell\\u2019s Creek Coal Co.\", \"head_matter\": \"CHARLESTON.\\nFry et al. v. Campbell\\u2019s Creek Coal Co.\\nSubmitted January 17, 1893.\\nDecided February 1, 1893.\\nRiparian Rights \\u2014 'Wharf\\u2014Landings\\u2014Navigable Rivers.\\nUnder the laws of this State, a person may acquire such qualified property in a landing or wharf on or along any of its navigable streams as will entitle such person to maintain a suit for damages against another for unlawfully or negligently obstructing or injuring the same.\\nTomlinson & Wiley and Hogg & JBelleR for plaintiffs in error\\ncited 22 W. Va. 52; 29 W. Va. 324; 1 Am. & Eng. Ency. L. 174, 175.\\nKnigiit & Couch for defendant in error\\ncited 22 W. Va. 52 ; 29 W. Va. 314 ; Id. 522.\", \"word_count\": \"662\", \"char_count\": \"3834\", \"text\": \"Dent, Judge :\\nThis is an action on the case, instituted by LI. Fry & Sons against tlicj Campbell's Creek Coal Company, for damages done to the plaintiffs, claiming to be the owners of a certain landing or harbor situated on the south side of the Great- Kanawha river. The defendant demurred to the declaration on the sole ground that the plaintiff could not have such ownership in a landing or harbor along such river, a navigable river being a public highway, as would entitle them to maintain a suit for damages done thereto. The Circuit Court sustained the demurrer and dismissed the suit, and the plaintiffs applied for and obtained a writ of error.\\nEor the purposes of the demurrer every material allegation of the declaration must be taken to be true. Ownership in the plaintiffs is plainly alleged, and also negligence on the part of the defendant. Chapter 43, ss. 40, 41, of the Code, provides for the establishment of such necessary aids to navigation outside of incorporated cities, towns, and villages, and even at a place where a public landing is al ready in use. Therefore there can be no question, that, while there can be no adverse or absolute ownership against the State, yet there may he such a qualified propei'ty acquired under the laws of the State in such landing, as will give the qualified owner thereof the right to maintain an action for damages against a wrongdoer who may unlawfully cause injury to the same; otherwise the proper navigation of such rivers would be greatly hindered.\\nIn what manner and whether such ownership has been acquired lawfully are .matters of proof. The lawful ownership or occupancy being established, it follows, as a matter of course, that the lawful owner or occupier of such landing or wharf is entitled to the enjoyment of his property undisturbed by the unlawful, overt or negligent acts or omissions of others. Any obstruction that renders the waters adjacent to such landing unnavigable deprives the owner thereof of the use of the same, and destroys the value of his property; and if such obstructions are placed there unlawfully, either by the overt act or negligence of another, the owner is entitled to compensation for the loss of his landing, or the expense of removing such obstructions.\\nIn the case of Brayton v. City of Fall River, 113 Mass. 218, 230, it was held: \\\"The owner of a wharf can maintain an action for an obstruction adjoining the wharf which prevents vessels from lying at it in the accustomed manner, this being a particular damage.\\\" *' \\\"He has a right to the water at its natural depth.\\\" \\\"Suppose a person had tipped stones off his wlxai'f, forming a pile which prevented any profitable use of it. It would be an obstruction to navigation, and to that extent the injury would be a common one to all the public. But the plaintiff wou'd suffer an injury, in the hindrance of the use of his property, to which no one else would be exposed.\\\"\\nWe therefore reach the conclusion that the Circuit Court erred in sustaining the demurrer, and for this reason the judgment is reversed, and demurrer overruled, and the case is remanded to be further proceeded in according to law.\\nREVERSED. Remanded.\"}"
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+"{\"id\": \"8639946\", \"name\": \"Miller v. Cox, et al.\", \"name_abbreviation\": \"Miller v. Cox\", \"decision_date\": \"1894-01-27\", \"docket_number\": \"\", \"first_page\": \"747\", \"last_page\": \"757\", \"citations\": \"38 W. Va. 747\", \"volume\": \"38\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T22:59:24.026653+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Miller v. Cox, et al.\", \"head_matter\": \"CHARLESTON.\\nMiller v. Cox, et al.\\nSubmitted January 11, 1894.\\nDecided January 27, 1894.\\n1. Tiujsts and Trustees \\u2014 Fraudulent Conveyances -Husband AND WIFE.\\nWhore during the pendency of a suit against an insolvent husband, instituted for the purpose of obtaining a judgment on a note executed by him, said husband executes a deed of trust on his real estate to a trustee, to secure to his wife the payment of a sum of money which he claims she had loaned to him, which he had used in his business, and which sum was barred by the statute of limitations when said trust was executed, and amounted to nearly .the value of the real estate, such trust-deed can not, as a lien, take precedence over judgments obtained by the bona fide creditors of said husband on debts created before said trust- was executed, on the unsupported testimony of the husband and wife as to it-\\u215d validity.\\n2. Husband and Wife \\u2014 Gift\\u2014JjOan\\u2014Tresumction\\u2014Evidenok\\nWhere money belonging to the wife as her separate estate is delivered to her husband, and used by him in his business, the law presumes it was intended as a gift, and not as a loan; and, in order to constitute such delivery a loan as against the husband, the wife must prove an express promise of the husband to repay, or establish by the circumstances that it was a loan, and not a gift.\\n3. Husband and Wife--Gift\\u2014 Loan--Presumption \\u2014 Evidence. Where the facts and circumstances tend to show that a gift was intended, and that the husband used and dealt witli the property as his own, the mere parol testimony of the husband and wife, of aprivato understanding between themselves that the transac-action was by them considered or intended as a loan to the husband by the wife, and not a gift, will not, as.against the creditors of an insolvent husband, rebut the presumption of a gift.\\n4. COMMISSIONJlUlS IN CHANCERY-NOTION.\\nTn taking an account the commissioner may take the depositions of witnesses to enable him to act upon the subject, under his general notice, and a special notice is not necessary.\\n5. Trusts and Trustees-Statute oe Limitations-Husband-WIee.\\nIf, at the date of said deed of trust, the claim thereby sought to be secured is barred by the statute ofliniitations, that fact lias a strong tendency to defeat said trust-deed as a lien in favor of the wife against tmna jicle creditors of her husband.'\\nC. E. Hogg, for appellant\\ncited Wood Lira. Act. 313, 314, 325; Id. 257; Code, c. 104, s. 6; 4 W. Va. 56; 23 W. Va. 651; 24 W. Va.-405, 408-410; 29 W. Va. 441 ; 1 Bart. Ch\\u2019y Pr. 163; Id. 226; 10 Leigh. 068; 1 Muni:. 118; 3 lYLunf. 29; 1 Bart. Cli\\u2019y Pr. 222; Bto. Eq. id. \\u00a7 224; 10 W. Va. 322; 4 W. Va. 56, 71; 23 W. Va. 65; Id. 197; 32 W. Va. 203; Id. 203; 5 G. & J. 432; 22 W. Va. 671; 23 W. Va. 479; 24 W. Va. 730 ; Id. 403 ; 11 W. Va.102; Id. 169 ; 24 W. Va. 199 ; 13 W. Va. 29; 2 \\u00a13. E. Hop. 780; 9 W. Va. 296; 14 W. Va. 211; 25 W. Va. 288; 1 Bart. Cli\\u2019y Pr. 346, 357, 358; 15 S. E. Hep. 997; 114 Ill. 304 ; 3 Chit. PL 1168.\\nWells & Pendleton for appellee\\ncited 20 W. Va. 351; 15 S. E. Rep. ~)7; Mit. Eq. P1. 14; 24 W. Va. 32; Sto, Eq. P1. 24 Eq. Fl. 92; ILl W. Va, 169, 173,1174; 16 \\\\\\\\T\\u2022 Va. 109; 24 W. Va. 541; 25 W. Va. 417 27 W. Va. 220; 20 W. Va. 50~); Id. 736; 27 W. Vu. 894; Li. 035; 31 W. Va. 418; W. A.\\nParsons for appellee cited Code,\\nc. 74, s. 1; 84 Ann Dec. 573; 1 Pars. Cont. 434; 3 Am. & Eng. Enc\\u2019y L. 840 & n. 5 ; 7 W. Va. 474; 16 YV. Va. 108; I<L 685 ; 12 W. Va. 402 ; 13 Pet. 359. English, Judge\", \"word_count\": \"4358\", \"char_count\": \"23514\", \"text\": \": On the\\n28th'day of November, 1888, J. S. Cox a resident Code, e. of Roano county, West Virginia, executed Ms note for one Multireel dollars payable to Charles E. Hogg, six months after date for value received at the Merchant's National Bank, of West Virginia, at Point Pleasant, which note was endorsed by said Chas. E. Hogg and delivered to W. II. T. Spencer and was also endorsed by W. II. T. Spencer and delivered to Rankin Wiley, Jr., and by Rankin Wiley, Jr., was endorsed and delivered to C. C. Miller.\\nOn the 3d day of September, 1889, said C. C, Miller obtained a judgment in the Circuit Court of Mason county upon said note against said J. S. Cox, Chas. E. Hogg and W. II. T. Spencer for onehundred and one dollars and sixty cents and costs.\\nAt the time said note was executed said J. S. Cox was the owner of a tract of land situated on Reedy creek, in Roane county, West. Virginia, containing one hundred and twenty five acres, and on the 19th day of August, 1889, said J. S. Cox conveyed said tract of land to one George C. Brown as trustee, to secure to his wife Margaret J. Cox the payment of a note for the sum of one thousand dollars payable one year after date which deed of trust was recorded on the 19th day of August, 1889, about fourteen days before said judgment was obtained upon said note.\\nAt the Eebruary Rules for the Circuit Court of Roane county, said C. 0. Miller tiled his bill in equity against said James S. Cox, George 0. Brown, trustee, and Margaret J. Cox, praying that said deed of trust might be declared voluntary and void, alleging that it was made with intent to hinder, delay and defraud the creditors of said defendant James S. Cox,' and because the same was without any consideration whatever deemed valuable in. law, that the same might be set aside and that the said tract of land might be sold to satisfy said judgment and costs, etc.\\nThe defendant Margaret J. Cox demurred to the plaintiff's bill which demurrer was sustained, the bill was amended at bar and thereupon said Margaret J. Cox filed her answer. Subsequent to the amendment of said bill no demurrer seems to have been interposed, by the defendants or either of them. It is however contended by counsel for the appellees that Charles E. Hogg and W. II. T. Spencer against whom the judgment was obtained jointly with J. S. Cox were necessary parties to the suit. This question was however, fairly presented in the case of Howard v. Stephenson, 33 W. Va. 116, and it was in that ease held that where a judgmeut had been obtained against R. & S. anda chancery suit was brought to enforce the lien of said judgment against the lands of S. it was unnecessary to make R. a defendant in said chancery suit as in it the plaintiff sought, no redress against him or his property.\\\" Green, J., in delivering the opinion of the Court says: \\\"It is also claimed, that the necessary parties defendant to this suit were never made parties defendant. First, it is claimed as the exhibits filed with the bill show that the judgments which the plaintiff socks to enforce were judgments not against the defendants only but also against others, these -others were necessary parties to this suit. The question as stated by Barton in his Chancery Practice 133-188 is, \\\"Ho one should be made a defendant against whom there can be no decree or relief granted in the suit\\\" and Sands in his suit in equity, 191, and this Court in Hill v. Proctor, 10 W. Va. 60, lay down the rule as follows : \\\"All persons materially interested in the subject of the controversy ought tobe made parties in equity',\\\" see page 78. But as Sands says on page 191, \\\"This rule however is restricted to those who are interested in the property which is involved in the issue, and does not extend to persons who have an interest in the point or question litigated.\\\" As in this suit the only decree asked for, or which could have been rendered was a decision against the land of Stephenson, the defendant and appellant to pay this plaintiff's two judgments. bTo decree was enten d or could have been obtained in this suit against any of the other defendants in these judgments in favor of the plaintiff in the chancery suit; and it was therefore unnecessary to make any of them defendants,\\\" and this ruling was followed and approved in the recent case decided by this Court in The State of West Virginia v. Alderson Bowen et als., which has not yet been reported, and we see no cause for departing from said ruling in this case.\\nThe questions raised by the first and second assignment of errors raise the question as to the correctness of the ruling of the Circuit Court in bolding the deed of trust given by James S. Cox to George C. Brown trustee, dated on tlie 19th day of August, 1889, to secure Margaret J. Cox bis wife the payment of one thousand dollars, a valid lien and giving it priority over the judgment lien of C. C.' Miller for one hundred and one dollars and sixty cents and these assignments of error may be considered together. Tn determining the bona, fides of this transaction and determining whether said deed of trust was executed with intent to hinder, delay and defraud the appellant, we are allowed to look at the circumstances which appear in the record. So far as appears therefrom this tract of land which the defendant J. S. Cox testifies was worth abouttwolvo hundred dollars, was all of the property real or personal possessed by the defendant J. S. Cox, an execution sued out upon the appellants judgment had been returned by the sheriff \\\"no property found.\\\" \\\" At the time the deed of trust was executed by said Cox to secure his wife the payment of one thousand dollars, suit was pending in the name of said C. C. Miller against him which resulted in the'judgment sought to be enforced in this case, about fourteen days after said deed of trust was recorded. A judgment had been rendered against him on the 22nd day of March 1889, for fifty dollars and costs amounting to eight dollars in favor of W. A. Parsons, and another judgment if favor of Wm. II. Wolf, cashier, was rendered against him in the Circuit Court of Jackson county on the 13th day of November, 1889, for the sum of one hundred and two dollars and eighty seven cents and costs amounting to eleven dollars and one cent, all of which debts existed at the date of said trust deed. The fact that the notes executed by said J. S. Cox to 0. E. Hogg were causing trouble and apprehension in the mind of said Cox is apparent from the fact that said Cox told C. P. Adams that the note held by him would have to be paid and that he was making arrangements to sell two horses to pay the TIogg notes, that ho would pay them as soon ashecotdd and that if he had to have the money when it became due, recpicsti d him to he as lenient with him as possible, that he did not obtain judgment enough against Ball, that he had expected that to pay Hogg \\u2014 and E. M. Iiiddle in his testimony, when asked wliat, if anything he heard said Cox say about the payment of. the Hogg notes, and wliat his intentions were with reference to the payment of them\\u2014 (this deposition was taken the 10th day of July, 1891) answered, \\\"As to dates I don't remember but it's been a year probably, in company with Mr. Cox he asked me if I knew he had made an assignment, and I told him I bad not heard it. lie said it was reported lie had made an assignment, but that he had not, but by way of a deed of trust \\u215b his wife to secure her iu some money that he had used of hers. Tie first stated that he did not do this to defraud any of his creditors out of his honest debts, but that lie had executed two notes to C. E. Hogg for attorney lees that, he considered unjust and that he did not think he had any right to, and would not pay them, that, there were other agreements between him and Hogg, that Hogg had not complied with.\\\"\\nThe plain and unmistakable inference to be drawn from this conversation with E. M. Kiddle is that said Cox did not regard the debt, evidenced by the notes executed to C. E. Tfogg as a just debt and that he had executed the deed of trust for the purpose of avoiding the payment of the same, \\\"he did not think he had any right to and would not pay them\\\" ho did not wish to defraud any of his creditors out of his honest debts, but he had given the deed of trust and he did not intend to pay those unjust, notes, and while it is true that in his deposition said Cox denies that the said note and trust were executed for the purpose or with the intention of hindering, delaying or defrauding the plaintiff or any of his other creditors or any other person, yet he does not deny the conversation detailed in the deposition of said E. M. Riddle as aboye set forth. In this conversation with the witness Riddle he indicates the motive which induced the execution of the trust-deed; and while it is true that the declarations of the grantor made subsequent to the conveyance are not admissible to affect the title of the grantee (see Casto v. Fry, 33 W. Va. 449) yet in cases of this character they muy ho considered as a circumstance to show the motive which actuated the grantor in making a voluntary conveyance. She says in her deposition, he would repay to me amounts, he would borrow it buck again after awhile, the last money he borrowed was about 1882 and was something over one thous- and dollars, some of which he used in buying cattle and horses and some in law suits.\\nSeven years had elapsed since the last money was loaned to her husband according to her own statement, and he had used the same in his-business transactions, but when suit has been instituted against him upon a claim which he regards as unjust, and judgment is about to be obtained against him, he seeks to shelter his property from the impending judgment which he regards as unjust, and which he tells Mr. Riddle he will not pay, by executing a note to his wife for money she had given him to use in his business more than seven years before and executes a deed of trust on his land to secure the same. In answer to the question why after waiting so long, it occurred to said J. S. Cox that it was his duty to execute this deed of trust for the benefit of his wife, the conversation detailed by Mr. Iliddle with said Cox, clearly indicates the motive and supplies the answer. In the case of Zinn v. Law, 32 W. Va. 447, this Court held first that \\\"where a wife delivers money or property of her own to her husband, which ho uses in his business, the presumption is that such delivery was intended as a gift, and in order to constitute such delivery a loan as against the creditors of the husband, the wife must prove an express promise of the husband to repay or establish by the circumstances than it was a loan and not a gift/'\\nSecond, .\\\"When the facts and circumstances tend to show that, a gift was intended, and that the husband used and dealt with the property as his own, the mere parol testimony of the husband and wife of a private understanding between themselves, that the transaction was by them considered or intended as a loan to the husband by the wife and not a gift will not as against the creditors of an insolvent husband rebut the .presumption of a gift,'* and this ruling as I think propounds correctly the law upon the facts stated. In the cases of Crawford et al. v. Carper et al., 4 W. Va. p. 56, a father-in-law appears to have advanced to his son-in-law at different times a considerable amount of money, the son-in-law afterwards becoming insolvent executed Ins note to bis father-in-law for the amounts so advanced, and immediately confessed judgment in favor of his father-in-law for the amount of said note, with the manifest intent of giving his father-in-law the first lien on his land, the debt for which said note was executed and judgment confessed was barred by the statute of limitations, and Ib'own, P., in delivering the opinion of the court said \\\"while it was all very right if the debt was just and real that it should be acknowledged and paid by the debtor as between the parties, yet still, the important question remains, whether under the circumstances of the case, it could he so done as above stated, seas to intercept the other bona fule, creditors whose debts were not so barred. And I am free to say I think it could not, because it comes clearly' within the first section of chapter 118, Code of 18(50 and is just such a case as it was the intention of the statute to prohibit.\\\" (This section corresponds precisely with section 1 of chapter 74 of our Code) and the ruling in the case of Crawford etc. v. Carper etc., supra, was approved and reaffirmed in the case of Knight v. Capito, 23 W. Va. 651. So also in the case of Bank v. Atkinson, 32 W. Va. 203, in which it. appeared that the wife allowed the proceeds of her real estatuto go into the hands of her husband, which pion-e.y was used by him in his business, and after several years the husband purchased real estate in the mime of his wife which purchase he claimed was made with the proceeds. It ivas held that \\\"Tf when such purchase is made any claim which she may have on him for such proceeds of her real estate is barred by limitation, that circumstance tends strongly to repel the wife's claim to exempt (he land against creditors, and in the same case it was held that the law will not from the mere delivering by the wife of her money'to the husband or from the permitted receipt by him of her separate estate imply a promise by' him to repay her, hut will require mor\\u00ed'. \\u2014 either an express promise, or circumstance to prove' that in such matters they dealt with each other as debtor and creditor.\\nTo thus raise a debt against him to the prejudice of creditors, the proof must be clear, full and above suspicion. Both J. S. Cox and Iuk wife state that the last money he borrowed from her was in 1882, which mast have been about seven years before the note for one thousand dollars was executed, which was secured by said deed of trust, they both state that a memorandum book was kept in her drawer by said Margaret J. Cox on which the amounts she loaned him, and the amounts lie repaid her were set down, but that this memorandum book had been lost about two years before said note was executed, and that for that reason they could not ascertain the exact amount, and she agreed to take the note for one thousand dollars secured by said trust-deed. The cause was referred to a commissioner who was directed to \\u00a1ascertain the liens existing against said, land, their nature and priority and in whose favor they existed, who ascertained and reported said trust-debt of one thous- and dollars to be the second lien upon said land, if the court should hold that said trust-deed was valid, a judgment in favor of W\\\". A. Parsons for fifty dollars with interest and costs, the first lieu, the judgment of plaintiff for one hundred and one dollars and sixty cents with interest and costs, the third lien upon said land, and the judgment of \\u00a5m. TI. Wolfe, cashier, for one hundred and two dollars and eighty seven cents with interest and costs, the fourth lien binding upon said land. The court, in acting upon said report excluded the depositions which had been taken before the commissioner by the plaintiffs because no special notice had been given by the plaintiff of the time and place of taking the same, decreed that said trust-deed was a valid and binding lion upon said land, confirmed the report of the commissioner as t-o the order and priority of said liens and directed a sale of said land to satisfy the same in accordance with the priority so ascertained, and from this decree this appeal was taken.\\nIt. is assigned as error that the court sustained the exception to the plaintiff's depositions for the reasons above stated, which point T regard as well taken, as it has for years been the practice in Virginia and in this state to take depositions before a commissioner in reference to a matter referred to him without giving any notice other than the general notice of the time and place of taking the account. Sands in his Suit in Equity p. 627, \\u00a7 586, says : \\\"Under the general notice given by the master commissioner when the order or decree is placed in his hands, the master or commissioner may take the depositions of witnesses without- giving special notice to the parties of their being taken, see also the case of McCandlish, Adm'r &c v. Edloe et als, 3 Gratt. 330, where it is held 3d point of syllabus that in taking an account the commissioner may take the depositions of witnesses to enable him to act upon the subject under his general notice, and a special notice is notneees-sary.\\\" See also Barton's Chancery Practice vol. 2. p. 641.\\nReturning again to the question as to the validity of the trust-deed executed by said J. S. Cox to secure his wife the note for one thousand dollars we call attention to the case of Maxwell v. Hanshaw, 24 W. Va. 405, where this Court held that \\\"A transfer of property either directly or indirectly by an insolvent husband to his wife during coverture is justly regarded with suspicion, and unless it clearly appears that it was entirely free from any wrong intent or purpose to withdraw the property from the husband's creditors it will not be sustained.\\n\\\"In such transfers there is a presumption against the wife in favor of the husband's creditors which she must overcome by aflirmative proof.\\\"\\nTn the case under consideration the circumstances which load us to the conclusion that said deed of trust was executed with intent to hinder, delay and defraud the creditors of said J. S. Cox may be summed up as follows:\\nFirst. The intimate relation of husband and wife existed between the grantor and the cestui que trust.\\nSecond. The claim was barred by the statute of limitations at the time said note and deed of trust were executed.\\nIn support of this proposition see Well's Separate .Property of Married Women, \\u00a7 662, where it is said, \\\"If the husband receives moneys of his wife under an agreement to refund them, it seems in New York that the statute runs at the time of the agreement in the absence of any specified time of repayment \\u2014 citing 3 Hun. New York Supreme Court 350, where the same is clearly held, and our statute expressly provides, section 15, c. 66, Code, that a married woman may sue without joining her husband, where the action is between herself anil husband, and where it concerns her separate property. As to this she is under no disability and the statute of limitations does not apply. See sec. 16, c. 104, which expressly excepts suits, in regard to her separate estate.\\nThird. The declaration of said grantor to E. M. Kiddle that he had not executed said trust to defraud any of his creditors out of his honest debts, but that he had executed two notes to O. E. Hogg for attorneys fees that he considered unjust and that he did not think he had any right to and would not pay them, that there wore other agreements between him and Hogg that Hogg had not complied with.\\\"\\nFourth. The deed of trust was executed during the pendency of the suit on one of said notes he had executed to stiid Hogg and said trust was recorded only fourteen days bofo re the judgment was obtained.\\nFifth. Although said J. S. Cox and his wife both state that an account was kept between them of the amount loaned to her husband, and returned to her by him at different times, said memorandum book was not produced.\\nSixth. Said money was used by the husband in trading in stock and in law suits and the law would presumo a gift instead of a loan.\\nApplying to these facts and circumstances the legal principles announced in the authorities above cited my conclusion is that while said deed of trust must be regarded as good enough between the parties thereto, it can not be allow'ed to take precedence over the claim of the plaintiff or the other boiut file creditors of said J. S. Cox and must be held void as to the judgment of the plaintiff C. C. Miller, the decree complained of must be reversed and the cause remanded, with costs to the appellant.\"}"
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+"{\"id\": \"8640676\", \"name\": \"Claflin & Co. v. Foley et als.\", \"name_abbreviation\": \"Claflin v. Foley\", \"decision_date\": \"1883-11-10\", \"docket_number\": \"\", \"first_page\": \"434\", \"last_page\": \"443\", \"citations\": \"22 W. Va. 434\", \"volume\": \"22\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T20:16:54.243660+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Claflin & Co. v. Foley et als.\", \"head_matter\": \"WHEELING.\\nClaflin & Co. v. Foley et als.\\nSubmitted June 26, 1883\\nDecided November 10, 1883.\\n1. A deed, conveying a stock of goods and merchandise and notes \\u25a0 and accounts of a merchant to a trustee to secure the payment of notes not then due, which provides that said conveyance shall cover \\u201csuch goods and merchandise as may be added to said stock, from time to time, by the grantor and brought into the store in course of business or to take the place of such goods as may hereafter be sold,\\u201d but does not authorize the trustee to take possession or control of said goods until the grantor has made default in the irayment of one or more of said notes and has been requested to do so by the holder or holders of such \\u2019 note or notes, is as against the unsecured creditors of the grantor fraudulent and void on its face, although it provides that the \\u201ctrustee, by himself or by his agent or attorney, shall at once take possession\\u201d of the notes and accounts transferred by such-deed and collect the same for the benefit of the trust-creditors, (p. 439.)\\n2. Nor is such deed validated or its character affected by the fact, that subsequent to its execution and on the same day a second trust-deed is made between the same grantor and grantee, conveying the same goods and merchandise, to secure other and differ- . ent cestuis que trust, which authorizes the trustee to take possession of said goods and merchandise at once, \\u201cand manage and control the same for the benefit and advantage of the parties secured and indemnified by the deed.\\u201d (p. 441.)\\n3. Three trust-deeds are made between the same grantor and trustee on the same property ; the second is declared tobe subject to the rights of the creditors secured in the first, and the third expressly refers to the first and mentions the creditors therein secured ; and the creditors secured are different in each deed ; and the first deed at the suit of unsecured creditors is declared \\\" to be fraudulent and void on its face as to the creditors of the grantor. Held :\\nI. That said second and third deeds convey only the equity of redemption in the property mentioned in the first deed ;\\nII. That the plaintiffs by their suit and charge thereby obtained on the trust-property acquired a preference over the creditors secured in said second and third deeds to satisfaction out of the trust-fund to the extent of the debts secured in the said first deed. (p. 442.)\\nThe facts of the case are sufficiently 'Stated in the opinion of the Court.\\nVan Winkle $ Ambler for appellants.\\nJohn A. Hutchinson and Cole Miller for appellees.\", \"word_count\": \"4020\", \"char_count\": \"22747\", \"text\": \"SNYDER,, Judge :\\nOn the 6th day of October, 1881, Hugh Of. Foley, of the city of Parkersburg, executed to \\\"John B. Speaker, of the city of Cincinnati and State of Ohio, trustee,\\\" a trust-deed by which, after stating therein that he \\\"is justly indebted to the firm of Speaker, Buddeke & Co, of the city of Cincinnati, in the sum of six thousand three hundred and forty-four dollars and thirty-six cents,\\\" and \\\"to the firm of Young, Kim-mell & Biggs, of Baltimore, in the sum of one thousand six hundred and twenty-seven dollars and twenty-seven cents,\\\" for which he has, as of the date of said deed, executed to the former firm his four notes, of one thousand five hundred and eighty-six dollars and nine cents each, and to the latter his four notes of four hundred and six dollars and eighty-two cents each, due respectively in fifteen, forty-five, seventy-five and one hundred and five days after date, with interest, and negotiable and payable at the First National Bank of Par-kersburg, the said Foley sold, assigned and conveyed to the said John B. Specker, trustee, \\\"all of the stock of goods and merchandise of and belonging to the said party of the first part, being and consisting of a stock or lot of dry goods and notions, hats and caps, boots and shoes, jewelry and cloaks, now contained in the store-room occupied by the pai*ty ot the first part in what is known as the 'Opera House Block,' on Market street, in the city of Parkersburg, and county of Wood and State of West Virginia, and also such goods and merchandise as may be added to said stock from time to time by the said party of the first part and brought into said store in course of the business or to take the place of such goods as may be hereafter sol'd; also all and singular the notes, books, accounts and bills receivable of and belonging to the party of the first part, a list or schedule of which is hereto attached and made part of this deed and marked 'Hugh G. Foley \\u2014 Schedule A.' \\u2014 in trust, however, to secure the payment of the said several notes hereinafter (hereinbefore) mentioned and described, and every one thereof as it may fall due, and any and all renewals thereof in case any one or more of them should be renewed, and if default be made by the said Foley in the payment of any one or more- of said notes, then it shall be the duty of the said trustee, when requested by the holder or holders of any such note or notes, to take possession of the said 'stock of goods^and make sale thereof at a public auction in all things as is required bylaw. And it is further stipulated and agreed that the said trustee, by himself or by his agent or attorney, shall at once take possession of the said notes, accounts and bills receivable hereby assigned and conveyed-, and collect the same in such manner as in his judgment he may think best for the interest of all parties interested in this trust, and he shall keep a strict and careful account of such collections and hold the same, or so much as may be necessary thereof, to meet the said notes as they may mature, deducting the reasonable charges and expense of this trust, and any surplus of or arising from said collections, if any, he shall pay to the said party of the first part.\\\"\\nThis deed, which for convenience I shall call \\\"deed No. 1,\\\" and also the schedule therein referred to, was duly recorded in Wood county on the day of its date.\\nBy another deed, which I shall call \\\"deed No. 2,\\\" of the same date and recorded in said county on the same day, the said Foley sold and conveyed the same stock of goods and merchandise to the said John B. Specker, trustee, in trust to secure the payment of certain unmatured notes, therein.described, due to the Parkersburg National Bank and to indemnify John O'Brien, Thomas Murphy and Thomas Hughes & Go. as his endorsers on said notes. By this deed \\\"the party of the second part (the trustee) is hereby authorized to take possession at once of the property hereby conveyed, and to manage and control the same for the benefit and advantage of the parties secured and indemnified by the deed, subject to the rights of the creditors secured by a former deed of trust which the parties of the first part have this day executed to the said John B. Specker, trustee, to the end that the said several notes herein mentioned may be paid at the maturity thereof out of the proceeds of the trust property hereby conveyed.\\\"\\nAnd by a third deed, \\\"No. 3,\\\" dated and recorded in said county, on October 7, 1881, the s,aid Foley conveyed to said John B. Specker, trustee, all the goods and merchandise, notes and accounts, conveyed by the said \\\"deed No. 1,\\\" in trust to secure the payment of certain other unmatured notes therein mentioned, due to the said Parkersburg National Bank on which said Foley is endorser.\\nAnd the said Foley, being indebted to H. B. Olaflin & Co. to an amount exceeding two thousand six hundred dollars lor goods purchased from them by him before the date of said \\\"deed No. 1,\\\" they, on November 5, 1881, brought this suit in the circuit court of Wood couirty against said Foley, John B. Specker, trustee, the eestuis que trust in said several deeds and others to set aside said \\\"deed No.-l,\\\" and to subject the property and choses in action therein mentioned to the payment of their debt. The plaintiffs charge in their bill that the debts due from, said Foley to the beneficiaries in said deed were, at the date of its execution, in fact, greatly less than the amounts therein secured to them; that the said deed was made with intent to delay, hinder and defraud the plaintiffs and other unsecured creditors of said Foley, and that the said John B. Specker, trustee, had notice \\u00f3f, and participated in, said intent, and that the said deed is, therefore, fraudulent and void as to them. They pray for an injunction to restrain the grantor, trustee and beneficiaries in said deed from disposing of, transferring or interfering with the property therein mentioned, and for the appointment of a receiver to take charge of said property, &c., and for general relief.\\nThe bill was sworn to and an injunction awarded as prayed for therein. The defendants, the grantor, trustee and eestuis que trust in said \\\"deed No. 1,\\\" appeared and filed their demurrer and several answers to the bill.\\nThe said defendants in their respective answers aver that the debts mentioned and the amounts secured to them respectively, in said deed, were, at the time of its execution, bona fide and justly due as therein stated, and they, each severally, positively,- directly and emphatically deny that said deed was' made yfith intent to delay, hinder and defraud the plaintiffs or any creditor of said Foley; and especially do the trustee and cestuis que trust deny that they or either of them participated in, or had any notice of such intent, if any such existed; and they specifically deny every allegation of fraud or eollu-. sion contained in the plaintiffs' bill.\\nThe cause was heard on December 12, 1882, upon the bill, demurrer thereto, answers and replications thereto, depositions and other proofs, and the plaintiffs not insisting then upon the appointment of a receiver, inasmuch as the property and goods had been disposed of and turned into money by the trustee, the court entered a decree overruling the demurrer to the bill and adjudged that the said \\\"deed No. 1\\\" was valid and binding and that the plaintiffs are not entitled to have the same set aside. The plaintiffs' injunction was then dissolved and the cause referred to a commissioner to settle the accounts of the trustee, &c. From and to this decree the plaintiffs obtained from this Court an appeal and supersedeas.\\nThe record is quite voluminous, containing much documentary evidence and many depositions filed' and adduced by the plaintiffs tending strongly to establish, independently of the stipulations in said \\\"deed No. 1,\\\" that the said deed was made by the grantor for the purpose and with the intent to delay, hinder and defraud his creditors, and that the trustee had notice of such intent. But this Court, being clearly of opinion that said deed is fraudulent and void as to creditors of the grantor on .its face, it is unnecessary to decide whether or not the facts and circumstances shown by the proofs in the cause, aside from the terms of the deed itself, conclusively establish such a fraudulent intent in the parties thereto as would make said deed void as to the plaintiffs and other creditors of said Foley. It may be remarked, however, that the trustee, was a non-resident of the State and a member of the firm of Specker, Buddeke & Co., the creditors holding nearly four-fifths of the debts secured therein; that the trustee was not only made such in the deed which secured the debt of his firm, but he was also made trustee in two other trust-deeds to secure resident creditors in whose debts he hadi no interest; that he, on behalf of his firm in person, and. Young, Kimmell & Diggs by their agent, were present at the time and actively participated in procuring the execution of the deed and evidently knew much about its object and purposes which they could have readily explained if the transaction had been fair and legitimate, yet notwithstanding the fact that the whole transaction was vigorously assailed and extraordinary conduct shown in the disposition of the trust-property, neither the grantor nor-the trustee, the said agent nor any member of either of the'firms therein secured testified in the cause, nor did they even produce, the original evidences of their debts or furnish any explanation of the transaction- or the reasons for the very questionable manner in which the trust-property was disposed of after the deed was executed, other than such as are contained in their several answers to interrogatories submitted with the plaintiffs' bill as to which they could not be cross-examined. These circumstances and this conduct furnish grounds for great suspicion if they do not constitute conclusive evidence of actual fraud and collusion \\u2014 Cramm v. Mitchell, I Sandf. Ch. 251; Goshorn v. Snodgrass, 17 W. Va. 717, 773; 2 Lom. Dig. 327; Bump, on Fr. Con. (3d ed.) 51, 376; Cox v. Platt, 32 Barb. 126; Pierce v. Merritt, 70 Mo. 275; Graham v. Fur-ber, 78 E. C. L. 410; Glenn v. Glenn, 17 Iowa 498; Smith v. Brown, 34 Mich. 455; Gay v. Parpart, 106 U. S. 679.\\nThe deed here in question conveys the stock ot goods and notes and accounts of the grantor, a merchant, to secure the payment of notes to become due fifteen, forty-five, seventy-five and one hundred and five days after the date of the deed, with a provision for the indefinite renewal of said notes. The trustee is not authorized to take possession of or sell the goods until the grantor has' made default in the payment of one \\u00f3r more of said notes, and not even then- unless requested by the holder or holders of such- note'or notes. It is further stipulated that the conveyance is to embrace \\\"such goods and merchandise as may be added to said, 'stock from time to time by the grantor and brought into the store in course of business, or to - take the place of such goods as may .be. hereafter sold.\\\" The clear intent and meaning of these provisions are that the grantor was to remain in possession of the goods and continue to prosecute his business by -selling the goods in the same manner that he did before the conveyance. And not only this, but he could purchase other goods to supply the place of such as he might sell, and then sell those in the same way. Thus by paying off the notes secured as they should become due, or renewing them, he could prevent even the creditors secured from taking possession of his goods or interfering with his business; and unless the secured creditors should request the trustee to take possession and sell the goods he could not do so, although the grantor failed to pay any part of the said notes. Thus of his own volition the grantor had the absolute disposal of the goods conveyed for fifteen days at least, and with the consent of his favored creditors, those secured by the deed, he could have such absolute control for an indefinite time; and in the meantime not only would the goods in the store at the date of the conveyance be protected from the pursuit of his unsecured creditors, but also such as he might thereafter bring into the store to take the \\u00a1olace of those sold by him in the course of his business. The deed does not even require the grantor while thus carrying on his business and selling the trust-property to keep any accounts or apply the proceeds of his sales to the payment of the debts secured. He is left in the absolute control of the goods without restriction, limitation or accountability to any one. What possible security does a deed encumbered with such stipulations furnish ? In the language of Carr, J., in Lang v. Lee: \\\"Is it not completely a felo de sel A security is taken on goods, and they are left in the possession of the debtor with a power to sell and dispose of them as he may think proper; no check whatever. Does not this resolve the whole matter into personal security ? And is the debtor more hound to account for the money than he was before the debt?\\\" \\u2014 3 Rand. 423. \\\"Can such a contract between debtor and creditor, the avowed purposes of which rest for their execution upon the good faith of the former, unguarded even by a single covenant, and which may he entirely frustrated by his imprudence or misfortune in trade, be regarded in legal contemplation, as constituting a valid security or specific lien on the property conveyed as against any creditor postponed by it?\\\" Sheppards v. Turpin, 3 Gratt. 399. Such a convey- anee is certainly more a protection to tlie debtor than it is a security to the creditor, aiid is therefore condemned as fraudulent and void as to the creditors of the grantor by numerous decisions in Virginia and this State \\u2014 Lang v. Lee, 3 Rand. 410; Barnes v. Janvey, 11 Leigh 100; Sheppards v. Turpin, 3 Gratt. 374 ; Spence v. Baywell, 6 Id. 444 ; Adding-ton v. Ethridge, 12 Id. 436; Kuhn v. Mack, 4 W. Va. 194; Garden v. Bodering, 9 Id. 121.\\nBut it may be supposed that inasmuch as said deed stipulates that the \\\"trustee, by himself or by his agent or attorney, shall at once take possession of the said notes, accounts and bills receivable, hereby assigned and conveyed, and collect the same,\\\" that the conveyance, though void as to the goods, is valid as to such notes, accounts and bills. Such is not the case. It has been settled by numerous decisions that, where by the terms of the deed it is rendered fraudulent on its face in any respect, the law will conclusively presume that all parties claiming under such deed had notice of and participated in such fraud; and the intention disclosed by its terms will be imputed to the whole instrument and all the \\u00a1parties connected with it and the deed will be declared void in toto._ Garland v. Rives, 4 Rand. 310; Henderson v. Henton, 26 Gratt. 926; Perry v. Shen. Nat. Bank, 27 Id. 755; Sands v. Codwise, 4 Johns. 536; S. C. 4 Am. D. 305; Bean v. Smith, 2 Mason 252-96; Clements v. Moore, 6 Wall. 313.\\nOn the same day that said deed was executed the grantor executed \\\"deed No. 2,\\\" conveying to the same trustee for the benefit of other creditors, the stock of goods and merchandise, but not the choses in action, conveyed by the first deed, and by the terms of the said second deed the trustee is \\\"authorized to take possession at once'of the property hereby conveyed and manage and control the same for the benefit and advantage of the parties secured and indemnified by the deed.\\\" Does the execution of this deed and the provision therein authorizing the trustee to take immediate possession of, and to manage and control the property, in anywise affect or validate said \\\"deed No. 1,\\\" which, as we have seen, taken alone, is void on its face? I think not. It appears that the grantor and the grantee as well as the subject conveyed are the same in both deeds. If, therefore, the two deeds are taken and considered as parts of one and the same contract or transaction, then the first being fraudulent and void on its face, the whole contract or transaction, according to the principle just announced and the authorities cited, must be held to be fraudulent and void; and the second deed being thus considered a part of that transaction it must share the fate of the first deed and in that view both deeds would be fraudulent and void. If, however, the more favorable and perhaps the more correct view be taken, that the two deeds constitute distinct and separate transactions, then the first can derive no aid from the second, and being void, as we have shown, when considered alone, it could not be validated .by the second which forms no part of it. As the said \\\"deed No. 2\\\" is not assailed by' the plaintiffs in their bill, it would be improper to express any opinion in regard to it, whether taken alone or in connection with said \\\"deed No. 1,\\\" and as a part of the same scheme or contract; and what I have said has no reference to that question.\\nThe.observations just made in regard to the effect, or rather absence of effect, of the execution of \\\"deed No. 2\\\" on the status of said \\\"deed No. 1,\\\" apply with equal force and propriety to the aforesaid \\\"deed No. 3.\\\"\\nBut, inasmuch as said \\\"deed No. 2,\\\" was expressly made \\\"subject to the rights of the creditors secured\\\" by \\\"deed No. 1,\\\" they, by their contract, acquired simply the equity of redemption in the goods and merchandise conveyed. When they took their conveyance they took it subject to the payment of the two sums of six thousand three hundred and forty-four dollars and thirty-six cents and one thousand six hundred and twenty-seven dollars and twenty-seven cents mentioned in said \\\"deed No. 1,\\\" and, although said deed was fraudulent on its face and the creditors therein named are not entitled to the benefit of said sums, still, as it was valid between the parties' thereto and the trustee and creditors in said second deed expressly excepted said amounts from their security, they are by their contract precluded from taking any benefit therefrom under the trust-deed to them. The said first deed, being fraudulent on its face, the law conclusively presumes that they knew that fact when they took their deed, and that it was their intention to except those amounts for the benefit of any persons who should in law show themselves entitled' thereto. Tate v. Liggat, 2 Leigh 84.\\nAnd while said \\\"deed No. 3\\\" contains no such reservation, in terms, in favor of the creditors secured in the said \\\"deed No- 1,\\\" it does expressly refer to said deed and mention the creditors secured in it. The grantor and trustee in the two deeds are the same. Tile implication, therefore, is equivalent, it seems to me, to an express agreement that said \\\"deed No. 3\\\" should operate only as a conveyance of the equity of redemption in the goods and dioses in action therein mentioned. It must, therefore, receive the same interpretation that we have placed upon said \\\"deed No. 2.\\\" And being so interpreted, the plaintiffs in this cause and other creditors of said Foley, if any such there be, who, by their superior diligence have made their debts charges on, or acquired liens upon, the trust-property or its proceeds, to the extent of their debts, not, however, exceeding the said sums of six thousand three hundred and forty-four dollars and thirty-six cents and one thousand six hundred and twenty-seven dollars and twenty-seven cents, mentioned in \\\"deed No. 1,\\\" are entitled to a preference over the cestuis que trust in said deeds No. 2 and No. 3 against the said trust-property or its proceeds. Wallace v. Treakle, 27 Gratt. 479; Hughes v. Hamilton, 19 W. Va. 367, 393.\\nFor the foregoing reasons the said decree of the circuit court of Wood county of December 12, 1882, is reversed with costs to the appellants against the appellees, Hugh G. Foley, Specker, Boddike & Co. and Young, Kimmell & Biggs; and this cause is remanded to said court for further proceedings to be had therein according to the principles announced in this opinion.\\nDECREE Reversed. Cause RbmaNded.\"}"
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+"{\"id\": \"8640712\", \"name\": \"Pennsylvania Lightning Rod Co. v. Board of Education of Cass Township\", \"name_abbreviation\": \"Pennsylvania Lightning Rod Co. v. Board of Education\", \"decision_date\": \"1882-10-14\", \"docket_number\": \"\", \"first_page\": \"360\", \"last_page\": \"369\", \"citations\": \"20 W. Va. 360\", \"volume\": \"20\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T19:27:43.801212+00:00\", \"provenance\": \"CAP\", \"judges\": \"The OtheR Judges Ooncueeed.\", \"parties\": \"Pennsylvania Lightning Rod Co. v. Board of Education of Cass Township.\", \"head_matter\": \"WHEELING.\\nPennsylvania Lightning Rod Co. v. Board of Education of Cass Township.\\nSubmitted June 12, 1882\\nDecided October 14, 1882.\\n1. Corporations created by statute must depend, both for their powers and the mode of exercising them, upon the true constrction of the statute creating them. (p. 365.)\\n2. The statute, quoad the corporation, is an enabling act, not only in regard to the powers conferred, but also as to the mode prescribed for exercising those powers, and unless the mode so prescribed is observed by the corporate body its acts will not bind the corporation, (p. 366.)\\n3. The members of a corporation aggregate cannot separately and individually give their, consent, or enter into a contract, in such a manner as to oblige themselves as a collective body or board, (p. 368.)\\n4. Under the provisions of chapter forty-five of the code of 1868, by which each board of education of the several townships of tlie counties of the State is created a corporation and its. duties prescribed, the members of such board, acting individually and separately and not as a board convened for the transaction of business, cannot make a contract or promise that will obligate or bind them as a corporation, (p. 368.)\\n5. As such board can be expressly bound only by joint and corporate acts, so it is only from such acts, done either by the board as a body, or by its duly authorized agents, that any implication can be made binding it in law. (p. 369.)\\nWrit of error and super se.de\\u00abs to a judgment of the circuit court of the county of \\\"Monongalia, rendered on the 20th day of March, 1878, in an action in said court then pending, wherein the Pennsylvania Lightning Pod Company was plaintiff, and the Board of Education of Cass township was defendant, allowed upon the petition of plaintiff.\\nHon. A. B. Fleming, judge of the second judicial circuit, rendered the judgment complained of.\\nThe facts of the case are fully stated in the opinion of the Court.\\nBerkshire Sturgiss for plaintiff in error\\ncited 2 Ahh. Big. 27, 28, 32 \\u2014 36, Id. 125 \\u00a7 21.\\n_P. IT. Keck for defendant in error\\ncited the following: Ang. Corp. p. 106 \\u00a7 4; Id. p. 177 \\u00a7 8; Ahh. Hat. Big. p. 13 \\u00a7 14; 11 Wheat. 392 ; Code ch. 45 \\u00a7 5; Ahh. Hat. Big. p 27 \\u00a7\\u00a7 124-128; Id. p. 27 \\u00a7 97; 1 Whar. \\u00a7\\u00a7 662, 663.\", \"word_count\": \"3640\", \"char_count\": \"20820\", \"text\": \"Sxydee, Judge,\\nannounced the opinion of the Court:\\nOn the 7th day of October, 1872, the plaintiff brought an action afussumpsit in the circuit court of Monongalia county to recover from the defendant, the Board of Education of Cass township, in said county, two liundred'hnd one dollars and fifteen cents, the price of lightning rods furnished and erected by it on the various school houses in said township at the request of the defendant. To this action the defendant pleaded non-as-sumpsit and issue was thereon joined. The case was continued on the record until the March term, 1878, at which a trial was had before a jury and a verdict found for the defendant. The plaintiff- moved the court to set aside the verdict upon the ground that it was contrary to the evidence, which motion the court overruled, and on the 27th day of March, 1878. entered judgment for costs against the plaintiff. Buring the trial the plaintiff took four several hills of exceptions which, were signed and made parts of the record. The first states, that, after the plaintiff had introduced evidence tending to prove a contract made by it, in 1871, with a majority of the members of the Board of Education of Cass township for the erection of lightning rods as in the declaration mentioned, but not at a meeting of said Board assembled for the transaction of business, but separately and apart from each other, the plaintiff moved the court to instruct the jury:\\n\\\"That a majority of the said Board, at the time of the alleged contract, were competent to make the same.\\\"\\nThe court refused so to instruct the jury, but gave the instruction with this addition thereto :\\n\\\"If made as a Board convened for the transaction of business.\\\"\\nTo so much of the instruction as contains the words added by the court, and to the giving of the instruction with said addition, the plaintiff excepted.\\nThe second bill of exceptions shows, that the plaintiff, after introducing evidence tending to prove the same facts set out in the first, moved the court to instruct the jury :\\n\\\" That the acts of a majority of a body politic (such as the Board of Education of Gass township was in 1871), are binding on the whole corporation when confined to its ordinary transactions and consistent with the original objects of its formation.\\\"\\n\\\"Which the court also refused to give, but gave the same with these words annexed thereto:\\n\\\" But such acts must be those of the Board convened for the transaction of business as a Board.\\\"\\nTo the adding of said words, and to the giving of the instruction with such addition, the plaintiff again excepted.\\nThe third bill of exceptions states, that after the plaintiff had introduced evidence tending to prove, that it by its duly appointed agent, in J-uly, 1871, contracted and agreed with all the members of the said Board, ^separately and apart from each other, except the secretary, and not in Board meeting, to furnish and erect, on eight public school houses in Cass township, the lightning rods, upon the terms set forth in the plaintiff's declaration, and that each of said members, except the secretary, agreed and consented when separate and apart as aforesaid that the plaintiff might so furnish and erect the said rods, and that it did accordingly furnish, and erect the said rods on said school houses according to said agreement twenty days or more prior to the 12th of August, 1871, and immediately afterwards delivered to the president of said Board a written guarantee as to the quality, &c., of said rods which it was required to do under its said contract with the members of said Board, and he received and accepted said guarantee on behalf of the Board -without objection, but which acceptance was not at a Board meeting nor in the presence of any other member of the Board; and then the defendant offered to read in evidence to the jury a copy of the proceedings of said Board at a special meeting held August 12, 1871, without proving that the plaintiff had ever been notified of the action of the Board at said meeting, to the reading of which the plaintiff' objected, but the court overruled said objection and said proceedings were read and the plaintiff excepted. The proceedings thus read are as follows:\\n\\\"At a special meeting of the Board of Education of Oass township, Monongalia county, West Va., officers present\\u2014 James A. Miller, president; A. J. Maple and A. Evans,' clerk A. S. Ilalfin, held at Stumptown, in Cass township, county and State aforesaid, on the 12th day of August, 1871, the following business was transacted:\\n\\\"On motion, it was ordered, that the Pennsylvania Lightning Rod Company be notified to remove the rods from the school houses in Cass township, as they had put them, on without consent of the Board. Ro business further being before the Board, they then adjourned.\\n\\\" A. S. Haldin, Secretary.\\n\\\" I certify that the above is a true copy of the proceedings of the Board of Education of Cass township at their meeting on the 12th day of August, 1882.\\n\\\"D. 'Wildman, Secretary.\\\"\\nThe fourth and last bill of exceptions, after giving a statement of the facts, which the evidence of the plaintiff tended to prove, substantially as that contained in the third exception, states that the defendant asked the court to instruct the jury:\\n\\\"That before the jury can find for the plaintiff, they must find from the evidence that the defendant, as a Board of Education of Cass township, contracted to and with the plaintiff'for the purchase and erection of the lightning rods in the declaration and bill of particulars mentioned, either by itself as such Board in session, or by an agent appointed by it in session to contract for the same, or that said Board, as such, afterwards ratified, assented to or accepted said rods and work.\\\"\\nTo the giving of which instruction the plaintiff objected, but the court overruled the objection and gave said instruction to the jury and the plaintiff excepted.\\nIn my view of the subject, the first, second and fourth bills of exceptions raise but a single legal question and may, therefore, be considered together. If the individuals, except the secretary, composing the Board of Education of Class township, as constituted in the year 1871, as such individuals, acting separately and apart from each other and not as a Board, could make a contract, binding upon the defendant, for furnishing and erecting lightning rods on the public school houses of said township, then the action of the court complained of by the plaintiff in each of said exceptions was erroneous, otherwise it was not.\\nIn ancient times, it was held that corporations aggregate could do nothing except by deed under their common seal. But this principal must always have been understood with many qualifications; and seems inapplicable to acts and votes passed by such corporations at corporate meetings. It was probably, in its origin, applied at common law and limited to such solemn proceedings as were usually evidenced under seal, and to be done by those persons who had the custody of the common seal, and had authority to bind the corporation thereby, as permanent oficial agents. Be this as it may, the rule has been broken in upon in a vast variety of cases in modern times, and cannot now, as a general proposition, be supported. A corporation, like a natural person, can grant or convey land only by deed; yet there are many things which it has power to do otherwise than by deed. It is now firmly established, both in England and America, that a corporation may be bound by promises, express or implied, resulting from the acts of its authorized agents, although such authority \\\"be conferred only by virtue- of a corporate vote unaccompanied with the corporate seal. Bank of U. S. v. Dandridge, 12 Wheat. 64; The Banks v. Poitiaux, 3 Rand. 136.\\nIn this country the authorities are uniform, that acts of a corporation evidenced by vote, written or unwritten, are as binding upon, and as complete authority to its agents, as acts done under the corporate seal; and that promises may as well be implied from its acts and the acts of its agents as in the case of individuals. Board of Education v. Greenebaum, 39 Ill. 609; Merrick v. Burlington, 11 Iowa 74; Petrie v. Wright, 14 Miss. 647; Buckley v. Briggs, 30 Mo. 452; Smith v. Proprietors, &c., 8 Pick. 178.\\nBut whatever may be the implied powers of aggregate corporations at common law, and the modes by which those powers are to be carried into operation, corporations, either private or public, created by statute must depend, both for their powers and their mode of exercising them upon the true construction of the statute creating them. They are precisely what the statute has made them; they derive all their powers from the statute; and are capable of exerting their powers only in the manner prescribed, or authorized by it. Head v. The P. Ins. Co., 2 Crunch 150; Perrine v. C. & D. Canal Co., 9 How. 182; People v. Utica Ins. Co., 15 Johns. 358.\\nThe alleged contract or promise in the case at bar, having been made in the year 1871, the provisions of chapter 45 of the Code of 1868, which was the only statute in force at that time, relating to the subject, must govern this case. This chapter provides: That the voters of each township shall elect three school commissioners \\u2014 sec. 1; that these commissioners and their secretary shall constitute the township Board of Education, and as such, they and their successors, shall be a corporation by the name of \\\"The Boaard of Education of the township of-,\\\" but the secretary shall have no vote as a member of said Board \\u2014 sec. 5; that said corporation shall be the owner of all the real and personal property belonging to the free schools in their township \\u2014 sec. 6; that at the first meeting and annually thereafter the Board shall organize by the election of a president from their number and a secretary. \\\"The secretary shall attend all meet ings of the Board, and record all their official proceedings in a book to be kept for the purpose, and attest such record by his signature; and the same shall at all seasonable times he open to the inspection of any person interested,\\\" &c. \\u2014 sec. 8 ; and that the said Board shall provide, by purchase, building or otherwise, suitable school houses and grounds in their township, and also such furniture, fixtures and appendages for the said school houses as the comfort, health and convenience of the scholars may require; and keep such grounds, school houses, furniture, fixtures and appendages in good order and repair \\u2014sec. 37.\\nThese are substantially the provisions of the statute materially hearing upon the question under consideration. And it will he observed that they make it the duty of the Board of Education to build and repair the school houses and provide the, necessary furniture and fixtures. This would, I apprehend, confer the power to purchase and erect on the school houses lightning rods; and thus the alleged contract, if made by the Board, was within its legitimate exercise of authority. But the serious enquiry still remains, and that is, can the individual members of the Board, acting separately and not as a body, make a contract that is valid and obligatory on the Board as a corporation ? To arrive at a proper solution of this enquiry, it must he kept in view that, upon the principles and authorities before referred to, the statute is the source not only of all the power possessed by the corporation, hut also of the mode and manner of exercising that power. The statute, as to the corporation, is an enabling act, and confers all the powers it possesses. Unless the Board or Education acts in the manner prescribed by the statute, it necessarily acts without authority. The grant which enables it to contract prescribes the mode of contracting and, unless that mode is observed, the act will no more create a contract obligatory on the corporation than if it had never been incorporated. Applying these principles, we find that the eighth section of the statute prescribes specifically the mode and manner in which the body shall conduct its proceedings. It provides that, \\\"the secretary shall attend all meetings of the Board and record all their official proceedings in a book to be kept for that purpose, and attest such record by his signa ture.\\\" This provision is imperative and requires the secretary to record all official proceedings. It does not require the secretary to attend the members of the Board, but only the meetings of the Board, and he is the only person commanded to record the proceedings. If the members could perform official acts, acting separately and apart from each other, then such acts must necessarily remain in pais and unrecorded, because there is no provision for recording such acts. It seems to me the proposition is too plain for discussion. The Legislature surely never contemplated that either a majority or all the individuals, composing the Board, acting separately and not in a body, should have the power to make contracts or perform other official duties. It seems to me that both the letter and spirit of the statute condemns such a construction. It is not necessary in this ease to decide whether or not, if the Board, regularly convened for the transaction of business, should, as such Board, make a contract within the legitimate powers conferred upon it by the statute, and no record of its action appeared on its books, the making of such contract might be proved by parol evidence. The policy and, perhaps, the Tetter of the statute would seem to preclude such evidence. The conduct and official acts of public officers and agents ought to be open to inspection, but if they are allowed to be proved by parol evidence their existence can only bo known by enquiry of those who did the acts. Such a principle would certainly be unwise, especially when applied to important acts. But as the question does not arise in this case it is not, therefore, decided.\\nIt may be proper to say further, in support of the construction hereinbefore claimed for this statute, that when a duty is conferred upon a body of two or more persons, it is a legal presumption that one, if not the principal, object is to have the concurrent counsel and deliberation of all, or at least a majority, of such persons, acting together and comparing views with each other in reference to the duty to be performed. If the persons or agents are permitted to act separately and apart from each other all the benefits of such concurrence are destroyed. Such separate action of the members of a Board of Education is not authorized by the statute, 1 Dill, on Mun. Oorp. \\u00a7 455.\\nThis conclusion is, also, sustained by authority in matters similar, as the following will show:\\n\\\"The act of the major part of the Board, is the act of the whole, and binds the corporation; but this must, on general principles, be done at one and the same time, and at a meeting held for the purpose.\\\" Kyd. on Corp. 309.\\n\\\"The members of a corporation aggregate cannot separately and individually give their consent in such a manner as to oblige themselves as a collective body; for in such case it is not the body that acts; and this is no less the doctrine of the common law than the Roman civil law.\\\" Ang. & Ames on Corp. \\u00a7 232, 229 and 239.\\nTherefore, upon reason and authority, we are of opinion, that the members of the Board of Education of Cass township, acting individually and separately and not as a Board, were not authorized by the statute to make a contract or promise that would bind them as a corporation, and that, as a result therefrom, the circuit court did not err in its action in the matter complained of in the plaintiff's first, second and fourth bills of exceptions.\\nThe plaintiff in error claims that it was obvious error to allow the defendant to read to the jury the proceedings of the Board contained in the third bill of exceptions; because the said proceedings were had subsequent to the time the cause of action arose and are in effect declarations of the defendant on its own behalf. Is this claim sustained by the record ?\\nIf this evidence could have had any influence on the case, it could only have done so as tending to show that the defendant had not accepted the work or ratified the alleged contract. It does not appear from the plaintiff's exception that it 'offered any evidence tending to prove such acceptance or ratification by the Board. It is true the exception shows that the plaintiff notified the the president of the Board, but this was after the work had been completed. It nowhere appears, aside from the evidence tending to prove the alleged contract which we have held did not bind the defendant, that the Board, or any member of it, had any knowledge or notice before the work was completed that it was being done; and so far as the record shows the resolution of August. 1.2,1871, may have been adopted by the Board at the first opportunity after it had notice that the plaintiff had done the work of putting the lightning rods on its school houses. If such is the fact, and as the contrary does not appear, this Court must in this case presume that it is such, then good faith to' the plaintiff and justice to the Board required it to pass said resolution, and it was proper evidence to repel any presumption of bad faith or ratification of the act by the defendant, and should have been admitted as evidence to the jury.\\nBut, as we have endeavored to show the members of the Board, acting individually, could not make a contract binding upon the Board as a corporation, it necessarily follows that no acts or assent by them as individuals could operate as a ratification of what had been done. They could not do indirectly what they had no power to do directly. \\\"As corporations can be expressly bound only by joint and corporate acts, so it is only from such acts, done either, by the corporation as a body, or by its authorized agents, that any implication can be made, binding it in law.\\\" Ang. & Ames on Corp. \\u00a7 239.\\nThus from any view taken of said evidence, it could not, so far as the record here discloses, have operated to the prejudice of the plaintiff; and consequently its admission by the circuit court furnishes no proper ground for the reversal of the judgment, whether proper evidence of itself or not.\\nTJpon consideration of the whole record we are, therefore, of opinion that the judgment -of the circuit court must be affirmed with costs to the defendant in error and thirty dollars damages.\\nThe OtheR Judges Ooncueeed.\\nJudgment Affiemed.\"}"
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+"{\"id\": \"8641548\", \"name\": \"Davis & Moore v. Walker\", \"name_abbreviation\": \"Davis v. Walker\", \"decision_date\": \"1874-03-02\", \"docket_number\": \"\", \"first_page\": \"447\", \"last_page\": \"453\", \"citations\": \"7 W. Va. 447\", \"volume\": \"7\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-11T00:17:08.182382+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other Judges concurred.\", \"parties\": \"Davis & Moore v. Walker.\", \"head_matter\": \"CHARLESTON.\\nDavis & Moore v. Walker.\\n\\u2022 March 2, 1874.\\nA motion for a continuance is addressed to the sound discretion of the court, under all the circumstances of the caso; and, although an appellate court will supervise the action of the court, on such \\u2022 \\u2022 * ' *\\u2022 a motion, it will not reverse a iuda-ment, on that e-round, unless . J 0 \\u2019 . \\u00b0 \\u2019 such action is plainly erroneous.\\nWrit of error and supersedeas to a judgment of tlie circuit court ef Kanawha county, rendered on the 26th day of May, 1873, in a suit therein pending, wherein Davis & Moore were plaintiffs, and Henry S. Walker, was defendant. The case was brought here by the defendant Walker. The only question involved in the case was as to the correctness of the decision of the court below, overruling the motion of the defendant for a continuance. The facts upon which the motion was based, were set out in two several bills of exception taken to the ruling of the court and sufficiently appear in the opinion of this Court.\\nThe Hon. Joseph Smith, judge of said circuit court, presided at the trial below.\\nLcddl.ey & Hogeman, for the appellant.\\nThomas B. 8wann and Mollohan & Nash, for the ap-pellees.\", \"word_count\": \"2442\", \"char_count\": \"13818\", \"text\": \"Haymokd, President:\\nThis is an action of trespass on the case in assumpsit, Brought by the plaintiffs against the defendant, in the circuit court of the county-of Kanawha. The declaration ^10 cause was filed on the-day of-, 1872. 29th day of March, 1872, the defendant'appeared court, to the action, and filed a general demurrer to the declaration, in which the plaintiff joined and the defendant pleaded non assumpsit and payment and set off on, each of which pleas issue was regularly joined. The defendant also filed an account with his pleas of payment and set offj but the account does not appear in the record. On the 30th day of March, 1872, the cause was continued, on motion of the defendant and at his costs. Afterwards, at another term of the court, held on the 26th day of July, 1873, the cause was again continued on motion of defendant and at his costs. At the October term of the court, held in 1872, the cause was continued generally. On the 26th day of May, 1873, plaintiffs and defendant appeared in court, and the demurrer filed to the declaration was overruled. The defendant, by leave of the court, withdrew his plea of sets off and specifications filed therewith, and a jury was duly empanelled and sworn to try the issues joined, and found a verdict in favor of the plaintiffs for $428.04, and the court gave judgment therefor against defendant. On the trial of the cause, .the defendant, by his attorney, excepted to certain rulings and orders of the court made in the cause, which .exceptions, being two in number, were signed, sealed and made part of the record.\\nThe cause is before us upon a writ of super-sedeas. From bill of exceptions, No. 1., it appears that when the cause was called for trial the defendant moved the court to continue the sanie at his costs-; and in support of his motion, read to the court his affidavit, which is, in substance, that Lewis Baker is a material witness' for him in the cause; that he has been duly summoned therein as a witness to this term; that he cannot prove by any other witness what he expects to prove by Baker; that said Baker is not. in attendance, although after receiving the subpoena, he sent word that he would be in attendance. This affidavit was sworn to, on the day of the trial, in Kanawha count}'. The defendant also proved, in port of his said motion, that a subpoena had been sent the witness Baker, by the defendant, by mail, and that the said witness had acknowledged receiving said subpoena, and had telegraphed the defendant that he would attend the court. The defendant also proved that the witness Baker had sent him word that he would be at the court on the Friday previous. But it was proved to the court that the case had been continued at two former \\u2022terms of the court, on the motion of the defendant, and each time on account of the absence of the witness Baker, who though summoned, had, at each of said two terms failed to attend; and that the defendant had, for each non-attendance, at said two former terms of the court, taken no rule or attachment against said witness to compel his attendance. It was also proved that the witness Baker resided in the city of Wheeling, county of Ohio, in this State; and the city of Wheeling was agreed and admitted to be more than one hundred miles distant from the place of holding the court, and that the defendant had taken no steps to procure the deposition of said witness. The defendant also proved that he had been advised, by his counsel, that it was important to have Baker's personal appearance on the trial. Upon this state of facts, the court overruled defendant's motion for a continuance and directed a jury to be empanneled,and the trial of the cause to proceed. The only question presented by this bill of exception is, did the court, under the circumstances stated, err in refusing to grant the defendant the continuance asked for. \\\"When a witness for either party fails to appear at the time appointed for the trial, if such party show that a subpoena for the witness has been returned executed, or that a subpoena was delivered to the proper officer of the county or corporation in which the witness resides, a reasonable time before the commencement of the term, and shall swear that the witness is material, and that he cannot safely go to trial- 'without his testimony, tbe court will generally grant a con^nuance Pai'ty h*8 costs.\\\" 1 Rob. Prac., (old) 250. In the case of Fiott v. the Commonwealth, 12 Gratt. 576, judge Allen, in delivering tbe opinion of tbe court says: \\\"Applications for continuances are addressed to tbe discretion of the court, and much must be left to the tribunal which has tbe parties before it, and must determine, from a variety of circumstances occurring in its presence, whether applications for continuances are made in good faith or are merely intended to protract the controversy : And even when made in good faith a reasonable degree of diligence should be exacted. The opposite party should not be kept in court and exposed to the risk of losing his testimony fby the negligence of the other sided \\\" In the case of Hewitt v. The Commonwealth, 17 Gratt. 627, it was held \\\"that a notice for acontinuance is addressed to the sound discretion of the court, under all the circumstances of the case ; and although an appellate court will supervise the action of an inferior court on such motion, it will not reverse a judgment, on that ground, unless such action was plainly erroneous. And that, as a general rule, where a witness for a party fails to appear at the time appointed for the trial, if such party show that a subpoena for the witness has been returned executed, or, if not so returned, was delivered to the proper officer of the county or corporation in which the witness resides, a reasonable time before the time of trial, and shall swear that the witness is material, and that he cannot safely go to trial without his testimony, a continuance ought to be granted, if there be reasonable ground .to believe that the attendance of the witness at the next term can be secured; especially if the case has not been before continued for the same cause.\\\" Courts of justice are maintained at great cost by the public for the convenience and benefit of suitors, or for the adjustment of controversies between men. And it is but reasonable and proper, ordinarily, that persons having- suits in court shall be held to the exercise of reasonable diligence by the courts, in prosecuting or defending their suits. In order that suitors may be able to get ready for trial, at the time for which their causes are set, they are given access to the jDrocess of the court to summon and compel the attendance of their witnesses. But if the suitor expects the indulgence of the court, he must be diligent in the use of its process. He must, generally, have exercised such diligence in the use of the process of the court, as will authorize the court, if the witness is not in attendance when the cause is called for trial, to take the legal course to compel the attendance of the witness. If the suitor is negligent and inattentive in this respect he cannot expect indulgence at the hands of the court. He must not simply rely upon the witness as to his attendance, especially where he has been in default, by disobeying\\\" the process of the court, but he can only safely rely upon the diligent and proper use of the process of the court in proper time. Justice to the public, and even to the suitors, demands, ordinarily, that reasonable diligence should be required of suitors in preparing for the trial of their causes. It is sometimes difficult to procure the attendance of witnesses, by the exercise of proper diligence, and sometimes it is very expensive to do so. To meet and obviate these difficulties and obstacles, the law has provided, in civil cases, that where the witness is not a resident of the State, or resides within the State, more than one hundred miles from the place of trial, and even in a different county from the place of trial, that the deposition of the witness may be taken and road as evidence, and, ordinarily, though perhaps not universally, in actions of account, the deposition of the witness accomplishes every purpose to be attained by his personal presence. In the case before us the witness Baker, though duty summoned to attend at the previous terms, failed to obey the process of the court, and by reason of his absence, the court granted the defendant, on his motion, a continuance each time; still the defendant took no steps, whatever, on either of these occasions, to compel attendance of the witness in the future. The defendant> before the trial, caused a subpoena to be issued for Baker to attend court as a witness in his behalf, but instead of sending the subpoena to an officer, or other person, in Ohio county, to be executed and so returned, he inclosed the subpoena in a letter, sent by mail, to Baker himself. How long this was done before court does not appear, and it does not appear that the subpoena was ever served, otherwise than that Baker acknowledged receiving it, and had telegraphed the defendant that he would attend the court at that term. From this it is clear that the defendant, without any sufficient reason, in point of law, trusted and relied, alone, upon Baker's willingness or convenience to attend the court as a witness, and not on the power and efficacy of process of law to compel his attendance. When the case was called for trial, defendant did not show to the court that the subpoena had been duty executed on Baker, and ask for a rule against him for disobeying the process of the court, but simply, upon the facts stated, as shown by the bill of exceptions taken to the opinion of the court refusing the continuance, asked the court to continue the cause. He did not take, or attempt to take. Baker's deposition in the cause, although he had ample time to have done so. True, the defendant proved that he had been advised by his counsel that it was important to have Baker's personal apj>earance at the trial. If defendant deemed it important to have the personal presence of Baker at the trial, instead of his deposition, it was his duty to have exercised reasonable diligence to have procured his attendance. The judge of the circuit court was of opinion, under the circumstan ces stated, that the defendant had not exercised reasonable diligence to procure the attendance of the witness Baker; and, according to the law, as settled by the cases above cited, we do not feel authorized or justified to declare that the judgment of the circuit court, in this respect was, or is, plainly erroneous. In cases of this kind we are not authorized to revise the judgment of the court below, except we are satisfied that the judgment is plainly erroneous.\\nThe bill of exceptions No. 2, is taken tothe opinion of the court overruling the motion of the defendant, made after verdict, for a new trial. The motion made for a new trial is not because the verdict is contrary to the law and evidence, or because of the discovery of new and material evidence since the trial, but because the court did not continue the cause, when it was called for trial, on account of the absence of the witness Baker. The defendant, in his affidavit filed in support of his motion for a new trial states some facts that were not proved to the court on the motion for a new trial, but no sufficient reason is shown why these facts were not proved to the court on the motion for continuance; and if they had been proved they do not materially change the case from what it was on the motion for continuance; all the other facts that appear by bill of exceptions No. 1, appear in bill of exceptions No. 2. Under the circumstances, as they appear by the record, and the law as applicable to those circumstances, we do not feel authorized to decide that the court below erred in overruling the defendant's motion for a new trial. If we were to reverse the judgment complained of, under the circumstances appearing in this case, we would establish a precedent which would most certainly exercise a pernicious infiuence upon the administration of justice in the inferior courts, and inflict a great injury upon the public.\\nIt was not insisted before us that the court erred in overruling the demurrer to the declaration. But we have examined the declaration, and do not see that the court below erred in its judgment in this respect.\\nFor these reasons the judgment of the court below must be affirmed with costs in this court and $30 damages in favor of the appellees.\\nThe other Judges concurred.\\nJ udgmert Affirmed\"}"
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+"{\"id\": \"8641780\", \"name\": \"Eleanor Currence et al. vs. Madison Daniels\", \"name_abbreviation\": \"Currence v. Daniels\", \"decision_date\": \"1872-07\", \"docket_number\": \"\", \"first_page\": \"418\", \"last_page\": \"426\", \"citations\": \"5 W. Va. 418\", \"volume\": \"5\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T18:16:56.835977+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other judges concurred.\", \"parties\": \"Eleanor Currence et al. vs. Madison Daniels.\", \"head_matter\": \"Wheeling.\\nEleanor Currence et al. vs. Madison Daniels.\\nJuly Term, 1872.\\n1. A legatee is compellable to sue lire personal representative of tlie testator for satisfaction of his legacy; and in such suit he cannot ordinarily make a debtor to the estate a party, because there is no privity between the legatee and the debtor. But there may be special cases where the debtor may be made a party.\\n2. The bill in this case alleges that the testator in his lifetime advanced to M., one of his sons, a certain sum which was separate and independent of the share which the said M. was to receive as one of the heirs; and that there was an agreement between the testator and M. that the latter should pay such person or persons as the testator should direct, by will or otherwise, the certain sum; and that the testator, by the eighth clause of his will, \\u201c devised and bequeathed \\u201d to the plaintiffs the certain sum. On demurrer it is held:\\nThat the allegations, if true, indicate r.ot only collateral circumstances sufficient, but also such special case as to justify the making of M. a party to the bill; because holding in his own hands the special funds, specifically bequeathed to the plaintiffs, he could, under those circumstances, be a trustee for the use and benefit of the plaintiffs. For that reason, and to prevent a multiplicity of suits, the demurrer was justly overruled\\nS. The allegations of the bill are not sustained, it appearing by the clause under which the bequest is claimed that the testator acknowledged that the certain sums so claimed were an absolute gift to M., in the lifetime of the former, without limitation, condition or circumstance. Nor does the proof sustain the allegation as to the agreement.\\nSuit in chancery in circuit court of Randolph county, commenced by summons issued 19th of June, 1866, in the names of Eleanor Currence and Mary Land, as plaintiffs, against Madison Daniels, defendant.\\nThe bill filed at August rules following alleged that on the 1st of May, 1858, William Daniels made his will, which, with a codicil thereto, dated the 22d of the same month, was admitted to probate on the 25th of July, 1859, in the county court of Randolph county, tbe said William Daniels having in the meantime died, possessed of a large estate, real and personal, which was disposed of by his said will; that by the eighth clause of the will the testator had given to his son, Madison Daniels, certain personal property and two hundred and fifty acres of land in Randolph county, and by the same clause gave to the plaintiffs one thousand dollars, equally to be divided between them, to he paid by the said Madison Daniels; and they claim that it was the testator\\u2019s intention to charge said legacy to them upon the land given to said Madison, and that, whether a charge or not, it was a legacy recoverable from the said Madison, and accordingly pray a decree against the said Madison for the sale of the land to raise the amount of said legacy; or, if the court should he of opinion that the legacy was not a charge upon the land, for a personal decree against the said Madison for the amount, and for general relief.\\nThe will of the said William Daniels is exhibited as part of the bill. The eighth clause thereof is in the following words:\\n\\u201c Eighth. I have heretofore given my son, Madison Daniels, three valuable horses, a saddle, bed, and good furniture, one hundred and fifty-five dollars in money, paid over by Samuel Morrison, and two hundred and fifty acres of land, which I consider his full share of my estate, and one thousand dollars more than his share, which said one thousand dollars due me by the said Madison Daniels I will to my daughters, Ellen Currence and Mary Land. If my said daughters should not be able to recover said one thousand dollars from said Madison, they are not to come on any other of my estate for the same.\\u201d\\nAt September rules, 1866, the defendant appeared and demurred generally to the bill, and the case was set for argument on such demurrer.\\nAt May term, 1867, the cause was remanded to rules for further proceedings, on motion of the plaintiffs.\\nAt January rules, 1868, the plaintiffs filed an amended bill, making quite a new and different case. After alleging that their respective husbands, whose names were given, were dead, and the making of the will and codicil of the said Wil liam Daniels, and the probate of the same after his death, they represent that by his said will one Elmore Daniels was named as executor, and that he having refused to act as such, one John N. Hughes was duly appointed administrator with the will annexed, and that he having died after his qualifi-fication, John N. Phares, sheriff of Randolph county, was appointed administrator de bonis non with the said will annexed. They then proceed to allege that the said William Daniels, in his life, had advanced to his son Madison the sum of one thousand dollars over and above the share which the said Madison was to receive as one of the heirs, and that it was agreed between the testator and the said Madison that the latter should pay said sum to such person or persons as the testator should, by will or otherwise, direct; and that the testator, by his will, had appointed the same to be paid to the plaintiffs, but that neither the said Madison nor any of the personal representatives of the testator had paid the same to them, nor had the said Madison paid the same to either administrator ; that the said Madison refused to pay the same to them, and that the personal representatives of the said William Daniels neglected and refused to institute proceedings at law against said Madison to enforce payment thereof. The bill made Madison Daniels and Phares, the committee administrator de bonis non, parties defendants, and prayed for the sale of the two hundred and fifty acres of land given to-Madison Daniels by his father, in his lifetime, to raise the amount claimed as a legacy to plaintiffs under the will, and for general relief.\\nWith this amended bill a deed is exhibited from William Daniels to Madison Daniels for two hundred acres of land in Randolph county, described by metes and bounds bearing date on the 31st day of January, 1857, and admitted to record on th'e same day. This deed purports to be in consideration of natural love and affection, and of one dollar in hand paid.\\nAnother deed is filed from the said William Daniels to the said Madison for fifty-nine acres of land on Files Creek, in Randolph county, also described by metes and bounds, bearing date on the 21st day of June, 1848, and admitted to record on the same day. This deed purports tobe in consideration of the sum of one hundred dollars in hand paid.\\nAt February rules, 1868, the defendant, Madison Daniels, demurred generally to the amended bill, and at the August term following, this demurrer, on argument, was overruled and the cause sent to rules.\\nAt the November term, 1868, Madison Daniels filed his answer. He admits that the plaintiffs are his sisters and that their husbands were dead. He also admits the will of their father as exhibited with the bill. He averts to the eighth clause of the will and alleges that nothing was given to him thereby, the terms of the clause merely expressing what was the fact, that the subjects therein mentioned had been theretofore given by the testator to the respondent, and that he then thought they amounted in value to one thousand dollars more than his share of the estate. He alleges that the deed of his father for the two hundred acres of land, made more than a year before \\u2022 the date of the will, requires nothing to be paid by him; that when he made his will his father had become old and childish, and for some cause was offended with him, and that for this reason he had desired by his will to take from him what he had previously given him and give it to the other children. He denies that there was any agreement between him and his father to pay th\\u00f3 plaintiffs, or either of them, any sum whatever, and he averts to the fact that the testator did not intimate in his will that there was any such agreement. He insists that the devise to the plaintiffs was an afterthought entirely.\\nThe depositions of sundry witnesses on each side were taken and filed in the cause.\\nJonathan Daniels, a brother of the plaintiffs and of the defendant Madison, swears to a conversation which he says took place not thirty, but twenty-five years previously, or it might be a little more or less, between William Daniels and the witness, in presence of Madison Daniels, in which William Daniels said that Madison was to have the Morrison land and the Brooks land and two big horses, and pay the girls (the plaintiffs) one thousand dollars at the old man\\u2019s death. He also swears to a subsequent conversation between himself and Madison, in which he says Madison stated that he was to pay the girls one thousand dollars at the death of the old man (his father.) He was not on friendly terms with Madison.\\nJacob Daniels, another brother, and who lived for forty years close by his father and his brother Madison, proves that what he got from the old man was worth from a thousand to twelve hundred dollars more than the shares of the other children.\\nDavid Lilly swears to a conversation which he says he had with Madison about the time of the death of William Daniels, in 1858, (thirteen years and upwards before giving his deposition,) in which he says Madison stated that he was to to pay five hundred dollars to Mary Land and the like sum to Mrs. Ourrence, on account of what he had got from his father. The witness stated that he had had a fight with Madison Daniels, and had brought a suit against him in I860, and that their relations had not been friendly since.\\nJohn B. Earle proves that the relations between Madison Daniels and Lilly seemed friendly; that in 1860 they had a fight.\\nAllison Daniels, a witness for defendant, proves that in 1858 an effort was made by William Daniels and Madison Daniels to have a settlement; that they could not agree ; that he then interposed and requested that the old man would give him the note he held on Madison and that the latter would give him the money he had; that Madison gave him the money and he gave it to the old man, and that the old man then gave him Madison\\u2019s note and he gave it to Madison; and that on the same day they all got on their horses and went to town to execute the deed to Madison ; that in the conversation between them on that day nothing was said about Madison\\u2019s paying anything to Mrs. Ourrence or Mrs. Land. He proves that the \\u201c Brooks\\u2019 Place \\u201d (the sixty acres conveyed by Stalnaker) was purchased by William Daniels and Madison Daniels jointly some thirty years previously, and that Madison was to have the land and to pay for it.\\nAdam Crawford proves that William Daniels told him the Brooks land was bought for Madison, and that he must pay for it; and that Madison did pay for it. This was about thirty years previously.\\nJohn B. Morrison proves that Jonathan Daniels and Madison Daniels were not on friendly terms.\\nDavid Goff proves that as attorney for the Stalnakers be collected the last payment of five hundred dollars for the Brooks land off Madison Daniels.\\nAllison Daniels proves that Madison Daniels and his father were not on friendly terms after the deed for the two hundred acres made by the old man in 1857. He heard the old man make threats towards Madison.\\nThe deed from William Daniels to Madison Daniels, dated 21st of June, 1848, for the fifty-nine acres called the \\u201c Brooks\\u2019 land,\\u201d the deed from same to same dated 31st of June, 1857, for the two hundred acres, and a deed from William Daniels to Samuel Morrison, dated 8th of June, 1849, are filed as evidence in the cause.\\nUpon this state of pleadings and proofs the case came on to be heard on the 30th of April, 1870, when the court pronounced its decree against Madison Daniels, personally, in favor of Mrs. Currence and Mrs. Land, for the sum of five hundred dollars each, with interest thereon from the 19th of June, 1866, until paid, and costs of suit.\\nFrom this' decree the defendant, Madison Daniels, appeals to this court for error in the_ same to be corrected.\\nLee, in support of said appeal,\\ncontended:\\n1. That the plaintiffs were not entitled to call the appellant in question in any court touching the matter alleged in the bill and amended bill, and the demurrers to the same should have been sustained. There was no privity between the plaintiffs and Madison Daniels. They claimed as legatees, and that the defendant was indebted to the estate of their testator. If so indebted he was liable to be sued by the executor or administrator only. His failure to sue could confer no right upon the plaintiffs to maintain a suit in their names, no fraud or collusion being alleged between the defendants. The remedy was against the administrator for neglect of duty or breach of his trust. Plaintiff must show a proper title to institute the suit. If be fail to do so a demurrer will lie, and a legatee cannot sue a debtor of the estate. Mitford\\u2019s Pleadings, 155, 156, 157, 158,. Coop. Eq. PL, 160,169, 171 to 176. Sto. Eq. PL, \\u00a7\\u00a7 227, 260, 261, 262, 503, 504, 508, 514. Brown, sioorcl vs. Edwards, 2 Yes., 247; Parker vs. Fearnley, 2 Sim. and Stu., 592; Alsager vs. Johnson, 4 Yes., 217; Burroughs vs. Elton, 11 Ves., 29; Long vs. Mojestre, 1 Jobn., cb. 305. See especially Sto. Eq. PL, \\u00a7\\u00a7 227, 262, 514, for authority directly in point.\\nThe agreement to pay the one thousand dollars alleged in the bill is not established by the proofs. It is expressly and positively denied in the answer of Madison Daniels. The only evidence tending to prove it is that of Jonathan Daniels and Lilly. Their evidence comes under circumstances entitling it to but little weight. They undertake to speak of what they heard Madison Daniels say from thirteen to twenty-five years before their depositions were taken. Such evidence is confessedly the weakest of all kinds of testimony. It is to be received with the greatest caution. Simon\\u2019s Case, 6 Carr & Payne, 541, per Alderson, B.; Earle vs. Pichen, 5 Carr <fc Payne, 542, per Parke, J.; 4 Black. Comm., 357. See the reasons for distrusting this kind of evidence given by Professor Greenleaf. 1 Greenl. Ev., \\u00a7 200. Moreover, both these witnesses were on unfriendly terms with Madison Daniels and were disqualified from speaking impartially. The pretended agreement is expressly disproved by Madison Daniels, whose testimony as a witness is taken in the case, and is also disproved by all the attending circumstances. The \\u201cBrook\\u2019s land \\u201d of fifty-nine acres is distinctly proven to have been paid for by Madison Daniels. In the deed for the two hundred acres made by \\\"William Daniels there is \\u2019no reservation of any purchase money to be paid to anybody and nothing said about any being unpaid, and this deed was not made until after the settlement brought about by' the intervention of Allison Daniels between William Daniels and Madison. He proves that the former held a note on the latter, which was delivered up on payment of the money by the latter, and that the parties then got on their horses and went to town to execute the deed: and nothing was said about anything to be paid to any other person. William Daniels, in his will, does not intimate that Madison had agreed to pay any sum of money to Mrs. Currence or Mrs. Land. All that can be deduced from it is that the testator considered what he had previously given Madison Daniels was more than his share of his estate by one thousand dollars, and therefore he chose to consider that sum as a debt due him from Madison Daniels, and to divide it equally between his two daughters. But apparently conscious that he had no valid legal claim against Madison, he takes good care to add, that if his daughters should not be able to recover the one thousand dollars from Madison, they are not to come upon his other estate for the same. All the circumstances of the case are utterly irreconcilable with the pretensions now put forth by the plaintiffs, and sought to be bolstered up by the unreliable and fallacious testimony of two unfriendly witnesses as to vague and loose statements made by Madison Daniels nearly a quarter of a century before.\\n8. The allegation of the bill is that William Daniels in his lifetime had advanced to Madison Daniels the sum of one thousand dollars , which sum \\u201c was separate and independent of the share which the said Daniels was to receive as one of the heirs of the said testator.\\u201d This allegation is no\\u2019t sustained by the evidence, but on the contrary is clearly disproved.\\n4. The bill alleges that Madison Daniels was to pay the one thousand dollars to such person or persons as the testator should, by will or otherwise, direct. The evidence of the two witnesses relied on is that Madison said he was to pay it to Mrs. Currence and Mrs. Land.\\n5. The pretended agreement is void under the statute of fraud. It was not to be performed until after the death of the old man. This did not occur until more than a year after the deed was made \\u2014 the latest period at which the agreement could have been made \\u2014 and there was no note or memorandum of the agreement in writing and signed by Madison Daniels or his agent. Code of Virginia, ch. 143, \\u00a7 1, p. 627.\", \"word_count\": \"3489\", \"char_count\": \"19608\", \"text\": \"Moore, J.\\nIt is .true, a legatee is compellable to sue the personal representative of the testator for satisfaction of his legacy; and in such suit he cannot, ordinarily, make a debtor to the estate a party, because there is no privity between the legatee and debtor. But there may be special cases where the debtor may be made a party. Story's Eq. Plead., \\u00a7 262, -514. The amended bill in this case alleges that the testator in his lifetime \\\" advanced to Madison Daniels, one of his sons, the sum of one thousand dollars, which said sum was separate and independent of the share which the said Daniels was to receive as one of the heirs of the said testator and \\\" that there was an agreement between the said testator and the said Madison, that the said Madison should pay to such person or persons as the said testator should, by will or otherwise, direct, the said sum of one thousand dollarsand that the testator, by the eighth clause of his will, \\\" devised and bequeathed \\\" to the plaintiffs the said sum of one thousand dollars, &c. If the allegations be true, it seems to me they indicate not only collateral circumstances sufficient but also such a special case as to justify the making of Madison Daniels a party, because holding in his own hands the special funds specifically bequeathed to the plaintiffs, he would under those circumstances be a trustee holding the legacy for the use and benefit of the plaintiffs. For that reason, and to prevent the multiplicity of suits, I think the court did right in overruling the demurrer.\\nBut the allegations of the bill are not sustained. The said eighth clause of the will is a positive declaration from the testator of a gift of personalty made in his lifetime to the said Madison, without limitation or condition, and the land is conveyed by deed in fee ; no limitation, no condition, no encumbrance whatever appears in the deed. The property had gone absolutely from the testator, it was an executed gift in his lifetime, and he could not dispose of it by his will, because it was no longer his property but Madison's. The proof does not sustain the allegation as to the agreement. It seems to me the decree is erroneous, and should be reversed, and the bills dismissed with costs.\\nThe other judges concurred.\\n.Decree reversed.\"}"
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+"{\"id\": \"8641850\", \"name\": \"William Cady vs. Mary Gale, et al.\", \"name_abbreviation\": \"Cady v. Gale\", \"decision_date\": \"1872-07\", \"docket_number\": \"\", \"first_page\": \"505\", \"last_page\": \"507\", \"citations\": \"5 W. Va. 505\", \"volume\": \"5\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T18:16:56.835977+00:00\", \"provenance\": \"CAP\", \"judges\": \"The other judges concurred,\", \"parties\": \"William Cady vs. Mary Gale, et al.\", \"head_matter\": \"Wheeling,\\nWilliam Cady vs. Mary Gale, et al.\\nJuly Term, 1872.\\nCady brought a bill against Gale to enforce a contract for the conveyance of land. The court below decreed in favor of G-ale. This court, on appeal, reversed the court below, andorded Gale to inalce a deed conveying his interest, which w as a life estate, to Cady. After this latter decree had been entered in the court below, Mary Gale, the wife of Gale, filed her petition alleging that she was the owner in fee, and that alt the issues, rents, profits and royalties, (it was oil producing territory,) were hors, and that she was no party to the suit of Cady against Gale. The Grant Oil Company also flltil a petition alleging that it was the lessee of Mary Gale and Gale before the sale of Gale to Cady ; that it was advised that the royalties, rents, &c., wore coming and due to the owner of the fee, and that Cady had notified it to pay and deliver the sam e to him iniuture, and that it was not a party to the suit of Cady vs Gale, &c, An Injunction, or suspending order, was granted on the petition. Prom this Cady appealed to this court. Held :\\n1. The decree rendered in the cause of Cady against Gale, is not binding upon, and does not in any way affect the interest of Mrs. Gale, or the Grant Oil Company, as they were not parties to the suit, and are not bound by the decree.\\n2. The petition of Mrs. Gale does not set up any matter but what has already been passed upon, In rendering tbe decree against Gale.\\n8. And if all the matters charged in the petition of the Grant Oil Company be true, it could not affect the liability of Gale in Ms contract with Cady,\\nThis cause arose upon the filing and recording in tbe circuit court of Wood county, on tbe 30fch of April, 1872, of tbe decree of this court, pronounced at the January term, 1872 in the cause of Cady vs. Gale. By that decree the defendant, Gale, was required to make a deed to plaintiff, Cady, for bis interest in a certain two hundred and fifty acres of oil land'. The interest of Gale was determined to be for life.\\nAfter that decree bad been entered, Mrs. Mary Gale, tbe wife of defendant, and the Grant Oil Company, filed their petitions, upon whicli injuctions, or suspending orders, to the-effect of the decree, were granted. Mrs. Gale alleges that the land which had been decreed to Cady, was hers, by virtue of a deed of conveyance in 1854 ; that she was not a party to the suit of Cady against Gale, nor were any of her tenants parties thereto, .and that the decree would seriously embarrass her in the future development of her oil territory, by casting a cloud on the title, &c. She asked that the court would decree the property to her as her sole property, together with the rents, issues and profits thereof.\\nThe petition of the Grant Oil Company alleged that they had leased and operated for oil, two lots of the ground in controversy, of Mrs. Gale and her husband, in 1858, before the sale of Cady; that the 250 acres decreed to Cady, was part of a large tract of 2,000 acres, and that by the terms of the decree it was located, not in the north-west corner thereof according to the terms of the original agreement .between Cady and Gale, but in the south-west corner of the larger tract, thus embracing the petitioner ; that the petitioner was an innocent purchaser for valuable consideration, and had no notice of the sale of Gale to Cady; that it was not a party to that suit, and had no opportunities to defend its interests, and show the im-proprietj1' of the location of the 250 acres, or the groundless claim of Cady to any conveyance from either Mary Gale or E. S. \\u2022Gale, her husband. And that Cady had notified tire Oil Company that, he was the owner of tlielandon which their leases were situated, and that he was entitled to the rents, issues, profits and royalties, arising from the same; therefore it was asked to he protected against Cady, as Mrs. Gale, it alleged, being owner of the fee, -was entitled to the royalties. And that Cady was greatly embarrassing it, &e.\\nCady appeals from the order suspending the operations, and oflect of the decree.\\nJohnson and Cole for appellant.\\nBoggess and Sands for appellees.\", \"word_count\": \"1169\", \"char_count\": \"6365\", \"text\": \"Maxwell J.\\nCady filed his bill in the circuit court of \\\"W ood county against Gale, to enforce specific execution of a. contract made by Gale, for the sale of a tract of 250 acres of land to Cady.\\nA decree was rendered by the said court in favor of Gale, from which Cady appealed to this court, which reversed the decree complained of, and directed the circuit court to enter a decree requiring the said Gale to convey all his interest in and to the said 250 acres of land, consisting of a life estate, to the said Cady. If Gale should fail to make a proper conveyance, a commissioner was to be appointed to make it for him. An account was also to be taken.\\nThe decree of this court was entered in the court below, and thereupon two petitions were filed in the said court, one by Mrs. Gale, wife of defendant, Gale, and the other by \\\" The Grant Oil Company,\\\" to review the said decree.\\nPetitioner also prayed that the effect of the decree be suspended until the questions raised by the petitioner should be determined.\\nThe circuit court made an order according to the prayer of the petitioner, suspending the decree of this court, and the case comes back here on an appeal from this order, and from the order allowing petitions to be filed.\\nThe decree rendered in the cause is not binding upon, and does not in any way affect the interest of Mrs. Gale, or of \\\"The Grant Oil Company,\\\" as they were not parties to the suit, and are not bound by the decree.\\nThe petition of Mrs. Gale does not set up any matter but. what has already been passed upon by this court in rendering the decree against Gale.\\nAnd if all the matter charged in the petition of \\\" The Grant Oil Company \\\" be true, it could not in any way affect the liability of Gale on this contract with Cady.\\nExparte Dubuque and Pacific Railroad, 1 Wallace 69; Sibbold vs. The United States, 12 Peters 488; Campbell vs. Price, 3 Munford 227; Price vs. Campbell, 5 Call 115; White vs. Atkinson, 2 Call 376.\\nThis court must therefore reverse the orders allowing the petitions to be filed, dissolve the injunction or suspending order, and dismiss the petitions, with costs to the appellant.\\nThe other judges concurred,\\nOrder reversed.\"}"
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+"{\"id\": \"8641934\", \"name\": \"Sarah Shepherd et al vs. Joseph Hammond\", \"name_abbreviation\": \"Shepherd v. Hammond\", \"decision_date\": \"1869-01\", \"docket_number\": \"\", \"first_page\": \"484\", \"last_page\": \"488\", \"citations\": \"3 W. Va. 484\", \"volume\": \"3\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T23:14:55.726225+00:00\", \"provenance\": \"CAP\", \"judges\": \"The remaining members of the court concurred.\", \"parties\": \"Sarah Shepherd et al vs. Joseph Hammond.\", \"head_matter\": \"Mijtelkg,\\nSarah Shepherd et al vs. Joseph Hammond.\\nJanuary Term, 1869.\\nH. agreed, in 1859, to buy up and compromise claims against the-estate of an intestate in consideration that he should have a certain part of the real estate of the decedent, supposed to contain 39 acres, which he took into possession, at a certain price per acre. On a refusal of the administra-trix, with whom he had made the agreement, to make a deed for the certain real estate, he filed a bill, in 1867, to have so much set off to him at the agreed price per acre, as would reimburse him for the sum paid out in liquidation of debts against the estate of the decedent, alleging also trouble and expense in time and money in gathering the debts. The court below decreed a sale of real estate of decedent to satisfy a vendor\\u2019s . lien, and to pay H. the amount of the sum disbursed by him with interest . from thetime of payment; and that as compensation for his time, troubleand expense in gathering up and paying off the claims, he would not be charged with rents and profits on the land, which he had taken into possession, from 1859 to April 1st, 1868. Held:\\nThat inasmnch as H. had paid off the debts, and thus relieved the ad-ministratrix from the trouble of so doing, that it was equitable he should have whatever commission could have been allowed her in such case; and as the law would allow her as much as ten per cent, in case of extra trouble, that H. ought to receive that amount on the amount paid out by him, in addition to legal interest from the time he gave up the land.\\nThe matters stated in the original bill in this case do not appear to have been considered by this court, and it is unnecessary to state them. The amended bill, which was filed in July, 1867, alleged that in 1858 or 1859, the complainant, Joseph Hammond, agreed with the widow and administra-trix, Sarah Shepherd, to settle and. compromise debts against the estate of the decedent, and to take for sums thus paid a certain piece of land, being a part of that of which the intestate died seized, belonging to the estate, supposed to contain 39 acres, but which only contained, on survey, 29 acres, at the price of 33 dollars per acre. That he paid off several debts and took possession of the land, and the widow refused to make a deed for it, and denied the agreement. It prayed that the orator might have sufficient land set apart to him at the value of 33 dollars per acre, to reimburse him for the money paid out by him. \\u25a0\\nSeveral depositions were taken in the cause, the substance of which are given in the opinion of the court.\\nThe court below decreed that \\u201cthe land on the south-east side of the \\\"Waynesburg road,\\u201d supposed to be about 50 acres of the whole tract of which the intestate died seized, be sold, and after paying a certain vendor\\u2019s lien thereon, that Hammond be paid the amount disbursed by him, which the commissioner reported at 1,348 dollars and 64 cents, with interest from the date of payment, and that to compensate him for his time, trouble and expense in gathering up and paying off the claims, he should not be charged with the rents aud profits of the land (which was proven to be worth about 75 dollars per year) occupied by him from 1859 to April 1st, 1868. The decree was rendered November 13th, 1867, by the circuit court of Marshall county.\\nFrom this decree-the defendants, Sarah Shepherd and the heirs of Jeremiah Shepherd, appealed to this court.\\nHolliday for the appellants.\\nStanton Allison for the appellee.\", \"word_count\": \"1631\", \"char_count\": \"8931\", \"text\": \"Berkshire, J.\\nIn the original bill the appellee, llam-'mond, claims the whole amount of the debts against the estate of Jeremiah Shepherd, which he had purchased at a large discount, without saying anything about the agreement between him aud said Shepherd's widow and admin-istratrix, about the purchase of the land; and asks that the real estate of which said Shepbead died seized, be sold, and that the complainant be paid the full amount of these debts and interest. In his amended bill, however, he admits that he had agreed with Mrs. Shepherd to purchase and take up these debts at whatever discount he could procure, and was to have a piece of land off of the Shepherd farm for the money he paid for said claims, at 38 dollars per acre. That a certain piece, supposed to ' contain 3D acres, was agreed on and taken possession of by the complainant in pursuance of the verbal agreement, the price agreed on being its full value: and prays that a sufficient quantity of land, at 83 dollars per acre, be decreed to him to reimburso for the amount paid out by him on the said claims.\\nFrom the evidence in the cause it is quite evident that the object had in view by Mrs. Shepherd, in making this arrangement with Hammond, was to try and save to herself and children a portion of the small estate left by her husband, and it is equally apparent, I think, that Hammond's desire and object was to purchase a part of the Shepherd land, which was convenient to and adjoined his own land. The depositions of a large number of the creditors of Jeremiah Shepherd, deceased, whose claims were paid and taken up by said Hammond, were taken in the cause; from which it appears that discounts were made on the debts so paid and taken up, and that the discounts were to be for the benefit of the widow and children of said Shepherd. That Hammond himself acknowledged and represented, at the -time of purchasing and taking up some of the claims, that he was to have no part of the discounts, but that they were for the benefit of the widow and children. It also appears that the widow exerted herself to effect this arrangement, and went to the State of Ohio and effected a compromise with one of the largest creditors, who came over to Moundsville, near where said Hammond resides, when and where the latter paid off the claim (it being a judgment) at a discount of some 30 per cent. It moreover appears, from the evidence of some of the creditors who made the most liberal discounts on their claim, that they were induced to do so on account of the widow and children, and but for the understanding and belief that they were to receive the benefit of the discount, they would not have made them.\\nIt is claimed by the appellee, Hammond,, in his amended bill, that he was at much- expense and trouble in buying in these claims. There is nothing in the record showing that he was compelled to or did in fact make any pecuniary expenditures in purchasing and taking up the debts over and above what he actually paid for them; nor does it appear that he was put to- any great or extra trouble in reference to them. In all there were only twenty'of the debts paid off by him. Of these six were in the hands of Mr. Holliday, an attorney, at Moundsville, in the immediate neighborhood of said Hammond, and the other creditors most likely resided in the same neighborhood or county.\\nFrom all the facts and circumstances of this case, therefore, I think the appellee, Hammond, stands on the same footing as if he had purchased the land of the administratrix, Mrs. Shepherd, and paid over to her directly the amount o\\u00ed money paid out by him on these claims, that being the amount of purchase money for the land as agreed on be< tween them, and thereby devolved on her the duty, and trouble of paying off the claims, with, however, the exception only of the time and trouble necessary and incident to the ascertaining and paying of the debts so- purchased and taken up by him. Bryan vs. Salyards, 3 Grat., 188. What then would be the measure of damage sustained by him?\\nIt is well settled that'in an ordinary case of a purchase of land which the vendee is unable to hold and which is taken away from him by reason of a failure of title- in his vendor, the measure of damages to the-vendee is the amount of purchase money paid by him, with interest from the time of eviction. In the case supposed, therefore, if Hammond had paid the amount paid out by him on said debts directly to Mrs. Shepherd, lie would have been entitled only to the amount so- paid, with interest on the same from the time he gave up possession of the piece of land agreed to be sold to him.\\nHut inasmuch as he- paid off the debts himself, and thus relieved the administratrix from the trouble of doing so, if the money had in fact been paid over to her, I think it equitable tliat he should have whatever commission could have been allowed to her in such case; and as the law would allow her as much as ten per cent, in case of extra trouble, it would not be unreasonable, as it seems to me, under the circumstances of this case, to allow the appellee, Hammond, that sum on the amount paid out by him in addition to legal interest from the time he gave up the land.\\nI think the decree should be reversed, with costs to the appellants here, and the cause remanded to the circuit court for further proceedings.\\nThe remaining members of the court concurred.\\nDecree reversed.\"}"
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diff --git a/w_va/8745123.json b/w_va/8745123.json
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+"{\"id\": \"8745123\", \"name\": \"CHARLES W. GROSE vs. DEPARTMENT OF HIGHWAYS\", \"name_abbreviation\": \"Grose v. Department of Highways\", \"decision_date\": \"1977-11-01\", \"docket_number\": \"No. CC-77-75\", \"first_page\": \"25\", \"last_page\": \"25\", \"citations\": \"12 Ct. Cl. 25\", \"volume\": \"12\", \"reporter\": \"Report of the West Virginia Court of Claims\", \"court\": \"West Virginia Court of Claims\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T22:43:27.568622+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CHARLES W. GROSE vs. DEPARTMENT OF HIGHWAYS\", \"head_matter\": \"Opinion issued November 1, 1977\\nCHARLES W. GROSE vs. DEPARTMENT OF HIGHWAYS\\n(No. CC-77-75)\\nCharles W. Grose, the claimant, in person.\\nGregory W. Evers, Attorney at Law, for the respondent.\", \"word_count\": \"209\", \"char_count\": \"1233\", \"text\": \"RULEY, JUDGE:\\nOn April 6, 1977, the claimant's automobile was damaged when it struck a loose piece of blacktop on New Hope Road near Elkview, West Virginia. The claimant alleges that the respondent was negligent and asks for damages in the sum of $358.04.\\nThe State is neither an insurer nor a guarantor of its roads. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947). The initial requirement to establish negligence in this case would be proof that the respondent either knew or, in the exercise of ordinary care, should have known about the defect in the road. See Frazier v. Department of Highways, 9 Ct. Cl. 171 (1972) and Jones v. Department of Highways, 9 Ct. Cl. 117 (1972). The sum of the testimony in this case revealed that the respondent occasionally blacktopped the road in question and that the road, at the place where the accident occurred, was in \\\"pretty good\\\" condition. This Court cannot conclude from that evidence that even the initial requirement of proof was met. Accordingly, the claim must be denied.\\nClaim disallowed.\"}"
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diff --git a/w_va/8746328.json b/w_va/8746328.json
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+++ b/w_va/8746328.json
@@ -0,0 +1 @@
+"{\"id\": \"8746328\", \"name\": \"ELEANOR F. CHARBENEAU & ELEANOR B. CHARBENEAU vs. DEPARTMENT OF HIGHWAYS\", \"name_abbreviation\": \"Charbeneau v. Department of Highways\", \"decision_date\": \"1978-01-06\", \"docket_number\": \"No. CC-77-73\", \"first_page\": \"67\", \"last_page\": \"68\", \"citations\": \"12 Ct. Cl. 67\", \"volume\": \"12\", \"reporter\": \"Report of the West Virginia Court of Claims\", \"court\": \"West Virginia Court of Claims\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T22:43:27.568622+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ELEANOR F. CHARBENEAU & ELEANOR B. CHARBENEAU vs. DEPARTMENT OF HIGHWAYS\", \"head_matter\": \"Opinion issued January 6, 1978\\nELEANOR F. CHARBENEAU & ELEANOR B. CHARBENEAU vs. DEPARTMENT OF HIGHWAYS\\n(No. CC-77-73)\\nThe claimants appeared in person.\\nRichard Carlton, Attorney at Law, for respondent.\", \"word_count\": \"379\", \"char_count\": \"2273\", \"text\": \"GARDEN, JUDGE:\\nThe claimants, Eleanor F. Charbeneau & Eleanor B. Char-beneau, mother and daughter, are the joint owners of a farm located in the rural area of Marshall County. The property was subjected to heavy snowfalls during January and February of 1977, to the extent that the State-maintained road which bisected their farm became unpassable. One day early in February, the claimants observed a bulldozer attempting to plow the road, and the man who was operating the bulldozer came to their home to inquire about the condition of other roads in the area. During the conversation that ensued, the claimants received the definite impression that he was employed by respondent.\\nLater the same day while walking out to the road to pick up their mail, the claimants observed that the bulldozer had driven off the right-of-way and onto their property, and, in so doing, had destroyed 227 feet of fencing, a 16-foot gate, and 30 fence posts. They presented an estimate in the amount of $253.45 for the repair of the damage. They also testified that as a result of the damage, they were unable to rent a portion of the farm to third parties for pasturing purposes, and thus lost income. They testified that they were not seeking recovery of this loss, but were seeking only sufficient funds to enable them to restore the fence line. Moreover, their testimony relating to the loss of income was too speculative to support an award for this item of damage.\\nArnold Rush, a foreman of respondent in the Marshall County area, testified that respondent had hired Mountaineer Excavation of Moundsville to assist respondent in bulldozing roads, and that, while he couldn't be sure, he was of the opinion that Mountaineer Excavation equipment did work in the area of the claimants' property.\\nUnder these facts, we are of the opinion that the claimants are entitled to an award in accordance with the Court's opinion in the recently decided claim of Hubbs v. Dept. of Highways, Claim No. CC-77-83, and an award is thus made to claimants in the amount of $253.45.\\nAward of $253.45.\"}"
\ No newline at end of file
diff --git a/w_va/8747139.json b/w_va/8747139.json
new file mode 100644
index 0000000000000000000000000000000000000000..df8134b99a4a2075efbbdbea7169eea4736b74b3
--- /dev/null
+++ b/w_va/8747139.json
@@ -0,0 +1 @@
+"{\"id\": \"8747139\", \"name\": \"JOHN KIPP, Claimant, v. STATE ADJUTANT GENERAL, Respondent\", \"name_abbreviation\": \"Kipp v. State Adjutant General\", \"decision_date\": \"1950-04-19\", \"docket_number\": \"Claim 686\", \"first_page\": \"108\", \"last_page\": \"109\", \"citations\": \"5 Ct. Cl. 108\", \"volume\": \"5\", \"reporter\": \"Report of the West Virginia Court of Claims\", \"court\": \"West Virginia Court of Claims\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T17:25:05.976973+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN KIPP, Claimant, v. STATE ADJUTANT GENERAL, Respondent.\", \"head_matter\": \"(Claim 686\\nJOHN KIPP, Claimant, v. STATE ADJUTANT GENERAL, Respondent.\\nOpinion filed April 19, 1950\\nClaimant, pro se.\\nW. Bryan Spillers. Assistant Attorney General, for the state.\", \"word_count\": \"434\", \"char_count\": \"2576\", \"text\": \"JAMES CANN, Judge.\\nClaimant John Kipp is the owner of a 1948 Buick automobile which on the 3rd day -of November, 1949, was legally parked in front of his home situate at 725 West Third Avenue, in the city of Huntington, Cabell county, West Virginia; on this same date, at or about four-thirty o'clock p.m., Sgt. Arthur Strank, a member of the West Virginia national guard, was operating a national guard truck, which was towing a 105 m.m. Howitzer. Sgt. Strank had left the national guard garage situate on said Third Avenue, near the home of claimant, for the purpose of delivering the Howitzer at the armory at 119 5th Avenue in said city of Huntington; he had proceeded east over Third Avenue about one-half a block when the Howitzer became detached from the truck, veered to the right and struck claimant's parked automobile, causing damages thereto in the amount of $78.39. From the evidence introduced and from the affidavits which were made part of the record, it appears to the satisfaction of the court that the Howitzer was either improperly fastened to the truck or that the spring lock on the truck that holds the latch down was weak and failed to hold. The operator of the truck attempts to indicate that because of the bumps and jarring caused by the ruts on the street over which he was travelling, caused the Howitzer to break loose. General Charles R. Fox, adjutant general of the state of West Virginia, testified substantially as follows: \\\"There must have been some present (negligence or carelessness) because these locks normally should not become loose even over exceptionally rough ground.\\\" Record p. 14..\\nGeneral Fox further testified substantially that the claim should be paid because he feels that the accident was entirely their fault. The position of the adjutant general is approved by the office of the attorney general, through its assistant. Under the circumstances and facts presented to us we conclude that the damages to claimant's automobile were caused by the independent and negligent act of the driver of the truck, agent of the state agency involved, in not properly securing the Howitzer to the truck in question; that this act was the proximate cause of the damages complained of and was in no way brought about by any fault or act of claimant. Therefore, we make an award to claimant in the sum of seventy-eight dollars and thirty-nine cents ($78.39).\"}"
\ No newline at end of file
diff --git a/w_va/8748169.json b/w_va/8748169.json
new file mode 100644
index 0000000000000000000000000000000000000000..ad50f052c13452dde2a745f4bb254ef3d27d5f8d
--- /dev/null
+++ b/w_va/8748169.json
@@ -0,0 +1 @@
+"{\"id\": \"8748169\", \"name\": \"LOGAN CORPORATION vs. DEPARTMENT OF HIGHWAYS\", \"name_abbreviation\": \"Logan Corp. v. Department of Highways\", \"decision_date\": \"1984-01-30\", \"docket_number\": \"CC-84-10\", \"first_page\": \"91\", \"last_page\": \"91\", \"citations\": \"15 Ct. Cl. 91\", \"volume\": \"15\", \"reporter\": \"Report of the West Virginia Court of Claims\", \"court\": \"West Virginia Court of Claims\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T23:56:00.874859+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LOGAN CORPORATION vs. DEPARTMENT OF HIGHWAYS\", \"head_matter\": \"Opinion issued January 30, 1984\\nLOGAN CORPORATION vs. DEPARTMENT OF HIGHWAYS\\n(CC-84-10)\\nFranklin L. Gritt, Jr., Attorney at Law, for claimant.\\nOlivia Cooper Bibb, Attorney at Law, for respondent.\", \"word_count\": \"115\", \"char_count\": \"725\", \"text\": \"PER CURIAM:\\nThis claim was submitted upon written stipulation to the effect that respondent is liable for damages in the amount of $1,089.50, based upon the following facts: On or about March 24, 1983, claimant rented a Sullair 750 DP Air Compressor, Serial No. 81808, to respondent. While in the possession of respondent, the air compressor was negligently damaged. As this negligence was the proximate cause of the damage suffered by claimant, the Court makes an award to claimant in the amount stipulated.\\nAward of $1,089.50.\"}"
\ No newline at end of file
diff --git a/w_va/8749333.json b/w_va/8749333.json
new file mode 100644
index 0000000000000000000000000000000000000000..311647e87e31ea22463c15435492a25fca24b29b
--- /dev/null
+++ b/w_va/8749333.json
@@ -0,0 +1 @@
+"{\"id\": \"8749333\", \"name\": \"A. M. FREDLOCK, II vs. DEPARTMENT OF HIGHWAYS\", \"name_abbreviation\": \"Fredlock v. Department of Highways\", \"decision_date\": \"1978-10-23\", \"docket_number\": \"No. CC-78-3\", \"first_page\": \"197\", \"last_page\": \"197\", \"citations\": \"12 Ct. Cl. 197\", \"volume\": \"12\", \"reporter\": \"Report of the West Virginia Court of Claims\", \"court\": \"West Virginia Court of Claims\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T22:43:27.568622+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"A. M. FREDLOCK, II vs. DEPARTMENT OF HIGHWAYS\", \"head_matter\": \"Opinion issued October 23, 1978\\nA. M. FREDLOCK, II vs. DEPARTMENT OF HIGHWAYS\\n(No. CC-78-3)\\nNo appearance by claimant.\\nHenry Haslebacher, Attorney at Law, for respondent.\", \"word_count\": \"108\", \"char_count\": \"663\", \"text\": \"PER CURIAM:\\nUpon written stipulation to the effect that the claimant, A.M. Fredlock II, was an employee of the respondent during the time of December 6, 1977 through December 10, 1977; that the claimant was sick during such period and had accumulated enough sick leave to cover that period; and that the respondent improperly deducted said period of absence from claimant's pay; the Court finds the respondent liable, and an award of $235.20 is hereby made to the claimant.\\nAward of $235.20.\"}"
\ No newline at end of file
diff --git a/w_va/8751908.json b/w_va/8751908.json
new file mode 100644
index 0000000000000000000000000000000000000000..a1dde24c97b347c0e8c36d1c5fd1d703411901d8
--- /dev/null
+++ b/w_va/8751908.json
@@ -0,0 +1 @@
+"{\"id\": \"8751908\", \"name\": \"WILLIAM B. McGINLEY vs. BOARD OF REGENTS\", \"name_abbreviation\": \"McGinley v. Board of Regents\", \"decision_date\": \"1982-12-01\", \"docket_number\": \"CC-81-20\", \"first_page\": \"271\", \"last_page\": \"272\", \"citations\": \"14 Ct. Cl. 271\", \"volume\": \"14\", \"reporter\": \"Report of the West Virginia Court of Claims\", \"court\": \"West Virginia Court of Claims\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T23:12:04.864745+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WILLIAM B. McGINLEY vs. BOARD OF REGENTS\", \"head_matter\": \"Opinion issued December 1, 1982\\nWILLIAM B. McGINLEY vs. BOARD OF REGENTS\\n(CC-81-20)\\nJames Casey, Attorney at Law, for claimant.\\nHenry C. Bias, Jr., Deputy Attorney General, for respondent.\", \"word_count\": \"499\", \"char_count\": \"3043\", \"text\": \"WALLACE, JUDGE:\\nClaimant seeks damages and attorney fees from the respondent for breach of contract.\\nThe claimant, after graduation from the College of Law at West Virginia University in May 1980, was interviewed for the position of Attorney for Students at the University. Of those interviewed, he was ranked second. The first choice accepted the position. The claimant then accepted a position with the Legal Services Plan in Beckley, West Virginia. In September 1980, the position of Attorney for Students became vacant, and Edmund Podeszwa of the Office of Personnel at West Virginia' University wrote the claimant advising him of the vacancy and asked if he wanted to apply for the position. The claimant advised that he was interested and was interviewed in Morgantown on September 25, 1980. After all interviews were completed, the claimant, on October 1, 1980, was offered the job at an annual salary of $16,776.00, which was accepted by claimant, and by agreement, he was to start work on October 20, 1980. After accepting the employment, the claimant resigned from his position with Legal Services Plan, cancelled his lease on his apartment in Beckley, and made preparations to move to Morgantown.\\nOn October 7, 1980, the claimant was notified by Mr. Podeszwa that the employment offer was withdrawn because the University had made a mistake concerning the affirmative action policy in their hiring policy.\\nThe claimant was unable to return to his job with Legal Services, and since he had no employment, he ar.d his wife returned to Morgantown where he entered the private practice of law.\\nThe position as Attorney for Students was not filled, and the University again sought applicants. The claimant was again offered the job on February 18, 1981, but declined the employment because he had accepted the position as Assistant Prosecuting Attorney of Mason County, West' Virginia at a salary of $14,300.00.\\nThe claimant contends in his complaint that he had a valid contract with the University which was breached; that the salary agreed upon was annual and, therefore, he was employed at least for a year. He seeks, as a part of his damages, attorney fees and travel expenses. Mr. Podeszwa testified that travel expenses to Morgantown were not to be paid by the University, which was confirmed in claimant's testimony. Mr. Podeszwa also testified that the first six months are considered as a probationary period of employment.\\nThere is no dispute of the facts in this claim. While it appears that the respondent did breach the contract which it made with the claimant, there is no evidence that the claimant sustained damage for reason of the breach inasmuch as his employment could have been terminated at any time during his probationary period. Accordingly, the Court is disposed to make an award in the sum of $500.00.\\nAward of $500.00.\"}"
\ No newline at end of file
diff --git a/w_va/8753441.json b/w_va/8753441.json
new file mode 100644
index 0000000000000000000000000000000000000000..d5f1362e07a55653fcea45a5e8d7a05b0649cb9b
--- /dev/null
+++ b/w_va/8753441.json
@@ -0,0 +1 @@
+"{\"id\": \"8753441\", \"name\": \"WEST VIRGINIA SCHOOL OF OSTEOPATHIC MEDICINE CLINIC, INC. vs. DEPARTMENT OF CORRECTIONS\", \"name_abbreviation\": \"West Virginia School of Osteopathic Medicine Clinic, Inc. v. Department of Corrections\", \"decision_date\": \"1983-01-25\", \"docket_number\": \"CC-82-306\", \"first_page\": \"349\", \"last_page\": \"350\", \"citations\": \"14 Ct. Cl. 349\", \"volume\": \"14\", \"reporter\": \"Report of the West Virginia Court of Claims\", \"court\": \"West Virginia Court of Claims\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T23:12:04.864745+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WEST VIRGINIA SCHOOL OF OSTEOPATHIC MEDICINE CLINIC, INC. vs. DEPARTMENT OF CORRECTIONS\", \"head_matter\": \"Opinion issued January 25, 1983\\nWEST VIRGINIA SCHOOL OF OSTEOPATHIC MEDICINE CLINIC, INC. vs. DEPARTMENT OF CORRECTIONS\\n(CC-82-306)\\nPaul'S. Detch, Attorney at Law, for claimant.\\nHenry C. Bias, Jr., Deputy Attorney General, for respondent.\", \"word_count\": \"140\", \"char_count\": \"878\", \"text\": \"PER CURIAM:\\nThis claim was submitted for decision upon the pleadings. The claimant seeks payment for medical services furnished to respondent's Anthony Center in the amount of $14,709.50.\\nThe respondent admits the validity and amount of the claim, but further alleges that sufficient funds were not available at the close of the fiscal year in question from which the obligation could have been paid.\\nThe Court finds that this claim should, in equity and good conscience, be paid, but an award cannot be made, based on the decision in Airkem Sales and Service, et al. v. Department of Mental Health, 8 Ct.Cl. 180 (1971).\\nClaim disallowed.\"}"
\ No newline at end of file
diff --git a/w_va/8900965.json b/w_va/8900965.json
new file mode 100644
index 0000000000000000000000000000000000000000..dbc238db4fb823ca90d834c3bc3d5ce3dcb13d52
--- /dev/null
+++ b/w_va/8900965.json
@@ -0,0 +1 @@
+"{\"id\": \"8900965\", \"name\": \"Juanita BUDA, James and Pamela Friend, James and Janice Polce, Harold and Donna Rehe, and Terry and Sharalyn Shreve, Plaintiffs Below, Appellants, v. TOWN OF MASONTOWN, Defendant Below, Appellee\", \"name_abbreviation\": \"Buda v. Town of Masontown\", \"decision_date\": \"2005-03-22\", \"docket_number\": \"No. 31779\", \"first_page\": \"284\", \"last_page\": \"291\", \"citations\": \"217 W. Va. 284\", \"volume\": \"217\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T23:54:17.348486+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Juanita BUDA, James and Pamela Friend, James and Janice Polce, Harold and Donna Rehe, and Terry and Sharalyn Shreve, Plaintiffs Below, Appellants, v. TOWN OF MASONTOWN, Defendant Below, Appellee.\", \"head_matter\": \"617 S.E.2d 831\\nJuanita BUDA, James and Pamela Friend, James and Janice Polce, Harold and Donna Rehe, and Terry and Sharalyn Shreve, Plaintiffs Below, Appellants, v. TOWN OF MASONTOWN, Defendant Below, Appellee.\\nNo. 31779.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted: Feb. 8, 2005.\\nFiled: March 22, 2005.\\nMelvin C. Snyder, III, Esq., Kingwood, for Appellants.\\nSheila Kae Williams, Esq., Kingwood, for Appellee.\", \"word_count\": \"4388\", \"char_count\": \"26815\", \"text\": \"The Opinion of the Court was delivered PER CURIAM.\\nPER CURIAM.\\nAppellants appeal the April 25, 2003, order of the Circuit Court of Preston County that denied Appellants' complaint for declaratory judgment and ruled that Appellee Town of Masontown complied with all notice requirements prior to its approval of a new sewer system to which Appellants are compelled to connect. For the reasons that follow, we affirm the circuit court.\\nI.\\nFACTS\\nAppellants and plaintiffs below are Preston County citizens who live a short distance outside of Appellee Town of Masontown (hereafter \\\"Appellee,\\\" \\\"Masontown,\\\" or \\\"Town\\\"). Appellee avers that Appellants are residents of an unincorporated area known as the Bretz area. Appellants, on the other hand, claim that they do not live in the Bretz area but that their area of residence is separated from Masontown by the Bretz area. The parties agree, however, that Appellants do not live within the corporate limits of Masontown. Appellants are not currently connected to any sewer system, but instead have individual septic systems.\\nOn December 21, 1999, Appellee filed with the Public Service Commission (hereafter \\\"PSC\\\") an application for a certificate of convenience and necessity for the construction of a new sewer system. On January 5, 2000, a legal notice of Masontown's application for a certificate of convenience and necessity appeared in The Preston County Journal, a weekly newspaper of general circulation. By final order dated January 23, 2000, the PSC approved Masontown's application. The certificate of convenience and necessity indicates that the sewer project is funded through revenue bonds and grants pursuant to W.Va.Code \\u00a7 16-13-1 et seq. The revenue bonds of Masontown were created by ordinance pursuant to W.Va.Code \\u00a7 16-13-5 (1933) and adopted by Mason-town's council on July 11,.2001. Pursuant to W.Va.Code \\u00a7 16-13-6 (1981), legal notice of the ordinance was published in The Preston County Journal on July 18, and July 25, 2001, and a public hearing was held on the ordinance on July 30, 2001.\\nIn July of 2002, Appellants filed a complaint for declaratory judgment in the Circuit Court of Preston County requesting the circuit court to declare that they could not be compelled pursuant to W.Va.Code \\u00a7 8-18-22 (1999) to connect to Masontown's new sewer system. Under W.Va.Code \\u00a7 8-18-22, the owner of a parcel which abuts on any street on which a municipal sewer is located may be compelled by the municipality to connect with the sewer even if the parcel of land is located outside of the municipality. In their complaint, Appellants argued that Mason-town failed to give proper notice under W.Va. Code \\u00a7 8-18-3 (1969), prior to the Town's resolution to apply to the PSC for a certificate of convenience and necessity, that Appellants' properties would be affected by the new sewer system.\\nAfter oral argument and the submission of legal memoranda with accompanying documents and affidavits, the circuit court of Preston County denied Appellants' complaint for declaratory judgment. Specifically, the circuit court found that Masontown did not fund its sewer system by an assessment on abutting landowners. As a result, the notice provision of W.Va.Code \\u00a7 8-18-3 does not apply. Instead, the circuit court found that the sewer system was funded with bonds and grants pursuant to W.Va.Code \\u00a7 16-13-1. Accordingly, the notice provision in W.Va. Code \\u00a7 16-13-6 (1981) is applicable. The circuit court concluded:\\nThe Town of Masontown complied with all notice requirements under its application for Certificate of Convenience and Necessity and Revenue Bond Ordinance. While the matter of notices to Plaintiffs could have been better handled and could have been more specific, the Court finds and concludes that the Plaintiffs did have notice of [Masontown's] application for Certificate of Convenieifce and Necessity, did have the right to protest to the PSC, and did receive all notices required by the PSC and the West Virginia Code.\\nShortly after the circuit court's ruling, Appellants received notices from Masontown that they must connect to the new sewer system. Appellants now appeal the circuit court's order denying them declaratory relief.\\nII.\\nSTANDARD OF REVIEW\\nThis Court has held,\\nIn reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.\\nSyllabus Point 2, Walker v. West Virginia Ethics Com'n, 201 W.Va. 108, 492 S.E.2d 167 (1997). With these standards in mind, we now review the circuit court's order.\\nIII.\\nDISCUSSION\\nThe sole issue before this Court is whether Masontown gave proper notice to Appellants, prior to approval of its new sewer system, that Appellants would have to connect to the system. Appellants first assert that they were due personal notice and an opportunity to be heard under constitutional due process principles. According to Appellants, they have a property interest which is affected by the requirement that they connect to the new sewer system. Specifically, they will lose the value of their existing septic systems and will be required to permanently pay monthly sewage fees over which they have little or no control. Therefore, Appellants claim that Masontown was required to provide them with personal notice and a hearing on the proposed sewer system prior to the Town's application to the PSC for a certificate of convenience and necessity.\\nWe find no merit to Appellants' constitutional argument. First, we do not believe that the mandatory connection to Masontown's new sewer system and the resulting abandonment of Appellants' septic systems constitute a taking for constitutional purposes. This Court long ago recognized that \\\"[u]ncompensated obedience to a regulation enacted for the public safety, or which may hereafter be enacted, under the police power of the state, is not a taking or damaging without just compensation of private property, or private property affected with a public interest.\\\" Syllabus Point 7, City of Welch v. Norfolk & W. Ry. Co., 104 W.Va. 660, 140 S.E. 839 (1927). Clearly, it is within the police power of the State to regulate sewer systems and to delegate this power to subordinate public entities such as municipalities. See West Virginia Water Service Co. v. Cunningham, 143 W.Va. 1, 98 S.E.2d 891 (1957) (holding that a municipal ordinance creating a sanitary board and authorizing this board to contract for the construction of a sewage system is within the police power of the State).\\nIn Kingmill Valley Public Serv. v. Riverview, 182 W.Va. 116, 386 S.E.2d 483 (1989), we addressed the question of whether the owner of a private sewer system who has been compelled to join the sewer lines of a public service district may claim that the disuse of its system constitutes a de facto taking and recover its value from the public service district. In Kingmill, the appellant mobile home park alleged that the forced abandonment of its privately owned sewage treatment facility constituted an unlawful taking of private property in violation of Article III, Section 9 of the Constitution of West Virginia and sought to recover from the public service district the value of its system which the parties stipulated to be worth $33,700.00. This Court concluded that the mandatory connection to the public sendee district's sewer system and the forced abandonment of the private system was not a taking and held in Syllabus Point 1 that \\\"[a]ll citizens hold property subject to the proper exercise of the police power for the common good. Even where such an exercise results in substantial diminution of property values, an owner has no right to compensation therefor.\\\" Accordingly, we find that Appellants' mandatory connection to Masontown's sewer system and the forced abandonment of Appellants' septic systems do not amount to a constitutional taking of Appellants' property.\\nSecond, we conclude that Appellants were not due personal notice and a hearing under constitutional principles prior to Masontown's approval of its new sewer system. In the Kingmill decision noted above, this Court discussed the case of Hutchinson v. City of Valdosta, 227 U.S. 303, 33 S.Ct. 290, 57 L.Ed. 520 (1913). In Hutchinson, the City of Valdosta, Georgia, passed an ordinance requiring owners of homes abutting upon any street along which sewer mains had been laid to install toilets in their houses and to connect the same to the public sewer lines within 30 days from the date of passage of the ordinance. In reviewing this ordinance, the Supreme Court found that it was a valid exercise of the police power and that it did not deny due process even though it afforded no prior personal notice or an opportunity to be heard. The Court explained:\\nIt is the commonest exercise of the police power of a State or city to provide for a system of sewers and to compel property owners to connect therewith.... It may be that an arbitrary exercise of the power could be restrained, but it would have to be palpably so to justify a court in interfering with so salutary a power and one so necessary to the public health.\\nHutchinson, 227 U.S. at 308, 33 S.Ct. at 292. \\\"Numerous state courts have followed [the Supreme Court's] holding that personal notice and a hearing are not required prior to ordering connection to a public sewer system.\\\" Alperstein v. Three Lalces Water & Sanitation, 710 P.2d 1186, 1189 (Colo.Ct.App. 1985), citing Nourse v. City of Russellville, 257 Ky. 525, 78 S.W.2d 761 (1935); Weber City Sanitation Commission v. Craft, 196 Va. 1140, 87 S.E.2d 153 (1955); Houpt v. County of Stephenson, 63 Ill.App.3d 792, 20 Ill.Dec. 851, 380 N.E.2d 1060 (1978). In Alperstein, the court relied on Hutchinson in rejecting the plaintiffs' claim that the due process clauses of the United States and Colorado Constitutions prohibit the sanitation district from compelling any owners of property located within its boundaries to connect to its sewer lines absent individual notice and the opportunity to be heard at a judicial-type hearing. See also McNeill v. Harnett Co., 327 N.C. 552, 398 S.E.2d 475 (N.C.1990) (concluding that statutes and ordinances which were passed without notice and an opportunity to be heard and which mandate connections to sewer lines as well as the payment of related connection charges and user fees are consistent with federal due process protections and are a valid exercise of the police power).\\nDuring oral argument before this Court, counsel for Appellants sought to distinguish Hutchinson from the instant ease on the basis that the plaintiffs in Hutchinson who were compelled to connect to the town's sewer system lived within town limits whereas Appellants live outside the corporate limits of Masontown. We believe that this distinction is legally insignificant. The Supreme Court in Hutchinson hinged its decision on the police power of a state or a city to provide for sewer systems and to compel property owners to connect to these systems. Our Legislature has expressly provided municipalities with the authority to construct sewer systems outside of their corporate limits and to compel property owners located outside of their corporate limits to connect to those systems. Accordingly, based on Hutchinson and the numerous decisions that follow Hutchinson, we find that Appellants had no constitutional due process right to personal notice and an opportunity to be heard before Masontown approved the construction of its new sewer system.\\nNext, Appellants assert that Mason-town failed to give notice to them pursuant to W.Va.Code \\u00a7 8-18-3 (1969), which provides, in part:\\nBefore the adoption of such ordinance or resolution of necessity or convenience, the governing body shall cause notice to be given to owners of abutting property that such ordinance or resolution will be considered before adoption at a public meeting of the governing body at a date, time and place named in the notice and that all persons shall at that meeting, or an adjournment thereof, be given an opportunity to protest or be heard concerning the adoption or rejection of said ordinance or resolution. Such notice to owners of property abutting on the portion of the street, alley, public way or easement, or sewer right-of-way or easement, to be improved may be by service on such owners in the manner in which process commencing a civil action under the laws of this State is permitted to be served at least ten days before said meeting. In lieu of such service of such notice, the following described notice, or one in substantially the same form, may be given, and shall be deemed to have been served on all such owners of abutting property, by publication of such notice as a Class II legal advertisement in compliance \\\"with the provisions of article three [\\u00a7\\u00a7 59-3-1 et seq.], chapter fifty-nine of this code, and the publication area for such publication shall be such municipality!;.]\\nAppellee responds, and the circuit court found, that the notice provisions in W.Va. Code \\u00a7 8-18-3, relied upon by Appellants, are not applicable here because these provisions apply only to sewer systems paid for by assessments on properties. Here, there are no such assessments. Rather, Masontown's new sewer system was paid for by grants and a bond issuance as provided for in W.Va. Code \\u00a7 16-13-1, et seq.\\nThe circuit court's construction of W.Va.Code \\u00a7 8-18-3 is correct. We have held,\\nA statute should be so read and applied as to make it accord with the spirit, purposes, and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law applicable to the subject-matter, whether constitutional, statutory, or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general puipose and design thereof, if its terms are consistent therewith.\\nSyllabus Point 5, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908). Chapter 8, article 18 of the West Virginia Code pertains to, in relevant part, assessments to improve sewer systems. Specifically, W.Va.Code \\u00a7 8-18-1 (1969) authorizes municipalities to construct sewer systems and to assess the cost on abutting property owners. According to W.Va.Code \\u00a7 8-18-10 (1969), the property abutting the sewer right-of-way shall be subject to a lien, from the date of the ordinance or resolution laying the assessment, which has priority over all other liens except for land taxes due the State, county, municipality or preexisting special assessments.\\nThe record shows that Masontown did not assess the cost of its new sewer system on abutting properties under W.Va.Code \\u00a7 8-18-1 et seq. Instead, it funded its sewer project through revenue bonds and grants pursuant to W.Va.Code \\u00a7 16-13-1 et seq. According to W.Va.Code \\u00a7 16-13-l(a)(2)(b) (2001), municipalities are authorized to pay for construction of sewer systems and to issue bonds to pay the cost of the systems. Pursuant to W.Va.Code \\u00a7 16-13-15 (1986), the payment of the bonds and interest thereon shall be paid from the revenues of the sewer system which have been placed in a special fund for solely that purpose. Therefore, because the cost of construction of Ma-sontown's sewer system was not paid for by assessment of the cost on Appellants, they are not due notice and a hearing as set forth in W.Va.Code \\u00a7 8-18-3. '\\nAppellants contend, however, that W.Va. Code \\u00a7 8-18-3 applies because even though Masontown did not directly assess the costs of the sewer system, it issued bonds for the project which are paid off by the fees charged the users of the new system. This argument must fail. The Legislature clearly set forth the statutory meaning of \\\"assessment\\\" for the purposes of Chapter 8, article 18 of the West Virginia Code and it does not include the issuance of bonds to pay for a new sewer system which, as noted above, is provided for in a separate section of the West Virginia Code.\\nIn sum, we determine that Masontown did not violate constitutional due process principles in failing to give Appellants personal notice and an opportunity to be heard prior to approval of the construction of Mason-town's new sewer system to which Appellants are compelled to connect. We also find that Masontown did not err in failing to give notice and an opportunity to be heard pursuant to W.Va.Code \\u00a7 8-18-3 inasmuch as that code section is not applicable to the financing of Masontown's sewer system.\\nFinally, we note that the issue herein is limited to the propriety and opportunity to be heard provided Appellants by Masontown. Appellants did not allege in their declaratory action below or before this Court that the Public Service Commission (hereafter \\\"PSC\\\") failed to give Appellants proper notice. The record shows that Masontown filed its application for a certificate of convenience and necessity on or about December 21,1999, and on January 5, 2000, th\\u00e9 PSC published the required legal notice of the application in The Preston County Journal. This legal notice, however, nowhere specifies that the construction of the new sewer system will affect areas outside of Masontown's corporate limits. We believe that in the future it would be preferable for such legal notices to state with greater specificity the areas that will be affected by the construction of new sewer systems. Specific notices by both the PSC and the municipalities seeking to construct new sewer systems will doubtless prevent the kind of misunderstandings and resulting litigation which occurred in this ease.\\nIV.\\nCONCLUSION\\nFor the reasons set forth above, we affirm the April 25, 2003, order of the Circuit Court of Preston County that denied Appellants' complaint for declaratory judgment.\\nAffirmed.\\n. Appellants herein are Juanita Buda, James and Pamela Friend, James and Janice Polce, Harold and Donna Rehe, and Terry and Sharalyn Shreve.\\n. The circuit court found that Appellants live in the \\\"Masontown-Bretz\\\" area.\\n. According to W.Va.Code \\u00a7 8-18-22 (1999), in effect when the matters in this case arose:\\nThe owner or owners of any lot or parcel of land abutting on any street, alley, public way or easement on which a municipal-sewer is now located or may hereafter be constructed and laid (whether constructed and laid under the provisions of this article or any other provisions of law) upon which lot or parcel of land any business or residence building is now located or may hereafter be erected, not connected with a public sewer, may be required and compelled by the municipality or by the board of health to connect any such building with such sewer. Notice so to connect shall be given by the municipality or by the board of health to the owner and to the lessee or occupant of such building. Each day's failure to comply with such notice and connect with such sewer by such owner or owners, after thirty days from the receipt of such notice, shall be a misdemeanor and a separate and new offense under this section, and each such offense shall be punishable by a fine of not less than five nor more than twenty-five dollars. Jurisdiction to hear, try, determine and sentence for any violation of this section is hereby vested in the police or municipal court thereof when the lot or parcel of land is within the municipality, or, where no police court or municipal court exists, in the mayor thereof: Provided, That if said lot or parcel is located outside of the municipality, then jurisdiction shall be vested in the circuit court of the county wherein the lot or parcel is situated.\\nThis code section was amended effective June 10, 2004. The amended version added, \\\"Regardless of whether a lot or parcel is within any municipality's geographical limits\\\" to the first sentence. Also, the new version deletes the third and fourth sentences concerning fines for failure to connect within specified time periods and who has jurisdiction to try the alleged violations for failure to connect. Finally, the new version adds the following:\\nThe owner or owners shall connect to the municipal sewer within thirty days after notice to connect has been sent by the municipality. Regardless of whether the owner or owners connect to such sewer, the municipality may bill the owner or owners of the lot or parcel and the owner or owners shall pay the municipality's charge based on the actual water consumption on the lot or parcel. If the lot or parcel is not metered, the municipality's charge shall be based on the municipality's good faith estimate of the consumption on the lot or parcel.\\nAppellants do not challenge the constitutionality of this code section.\\n. According to W.Va.Code \\u00a7 16-13-1 (2001), municipalities have the authority to own, acquire, construct, equip, operate and maintain sewer systems \\\"within and/or without\\\" their corporate limits. In addition, W.Va.Code \\u00a7 16-13-22 (2001), provides that municipalities have jurisdiction for the purposes of sewage and storm-water works 20 miles outside their corporate limits in areas from which stormwater affects or drains into the municipality. Appellants do not challenge the constitutionality of these provisions.\\n. Pursuant to W.Va.Code \\u00a7 16-13-5 (1933), before a municipality constructs a sewer system, it must enact an ordinance which, inter alia, directs that revenue bonds shall be issued in such an amount as may be found necessary to pay for the cost of the sewer system. Concerning notice of this ordinance, W.Va.Code \\u00a7 16-13-6 (1981) states:\\nAfter such ordinance shall have been adopted, an abstract of the ordinance, determined by the governing body to contain sufficient information as to give notice of the contents of such ordinance, together with the following described notice, shall be published as a Class II legal advertisement in compliance with the provisions of article three [\\u00a7\\u00a7 59-3-1 et seq.], chapter fifty-nine of this Code, and the publication area for such publication shall be the municipality. The notice shall state that said ordinance has been adopted, and that the municipality contemplates the issuance of the bonds described in the ordinance, and that any person interested may appear before the governing body upon a certain date, which shall not be less than ten days subsequent to the first date of publication of such abstract and notice which shall not be prior to the last date of publication of such abstract and notice, and present protests. At such hearing all objections and suggestions shall be heard and the governing body shall take such action as it shall deem proper in the premises: Provided, however, That if at such a hearing written protest is filed by thirty percent or more of the owners of real estate situate in said municipality, then the governing body of said municipality shall not take further action unless four fifths of the qualified members of the said governing body assent thereto.\\nThe circuit court found, and the record shows, that Masontown published a legal notice of the public hearing on tire bond ordinance in The Preston County Journal on Julv 18 and July 25, 2001.\\n. See n. 3 supra.\\n. In contrast, W.Va.Code \\u00a7 8-18-22, set forth in n. 3, supra, does apply to compel Appellants to connect to Masontown's sewer system because, according to its plain terms, it applies to any municipal sewer \\\"whether constructed and laid under the provisions of this article or any other provisions of law.\\\"\\n. Also, Appellants argue that if the notice requirements of W.Va.Code \\u00a7 8-18-3 are not applicable, Masontown had no statutory notice requirements which, they claim, is contrary to constitutional due process. We have previously disposed of Appellant's constitutional arguments.\\n. Appellants also contend that their right to present evidence was denied by the circuit court in this matter because the circuit court did not hold an evidentiary hearing for Appellants to establish that they did not receive actual or specific notice of the proposed sewer project. Because we have found no error in the circuit court's order, we do not deem it necessary to consider this issue.\\n.According to W.Va.Code \\u00a7 24-2-1 (2003), the PSC's jurisdiction extends to sewer systems servicing 25 or more persons or firms other than the owner of the sewer systems. No municipality shall construct a sewer system over which the PSC has jurisdiction until it obtains from the PSC a certificate of public convenience and necessity requiring construction of the new system. The PSC is to give notice of this application in the proposed area of operation by Class I legal advertisement which states that a formal hearing may be waived in the absence of protest, made within 30 days, to the application. See W.Va. Code \\u00a7 24-2-11 (1983).\\n. We emphasize that the PSC should be extremely careful to ensure that the notice required by W.Va.Code \\u00a7 24-2-11 is meaningful and effective. This means that the notice should indicate which persons in which areas will be affected by the proposed sewer project regardless of whether these persons are located inside or outside of the municipality applying for the certificate of public convenience and necessity.\\n. There are exhibits in the record that appear to suggest that at least some of the Appellants had actual notice that Masontown's proposed new sewer system would include areas outside of the Town's corporate limits. For example, there is a copy of the minutes of a July 10, 1997, Mason-town Town Council meeting in which it is recorded that Appellant Janice Poke and others who reside outside of Masontown questioned why their area had to be included in the proposed sewer project. There is also a copy of a petition which indicates that \\\"We, the people of Bretz and outlying areas do not wish to be included in Masontown's waste water treatment project.\\\" Signatures on the list include those of Appellants Terry and Sharalyn Shreve and Janice Polce. Finally, there is a copy of a legal notice which appeared in The Preston County Journal on February 24 and March 3, 1999, the stated purpose of which was to provide notice to Ma-sontown residents \\\"and residents of the Bretz area on the plans for the sewer project.\\\"\"}"
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+"{\"id\": \"8901627\", \"name\": \"William K. STERN, et al., Plaintiffs Below, Appellees Franklin Stump, Danny Gunnoe and Teddy Joe Hoosier, Appellants v. CHEMTALL INCORPORATED, a Georgia Corporation, et al., Defendants Below, Appellees\", \"name_abbreviation\": \"Stern v. Chemtall Inc.\", \"decision_date\": \"2005-05-31\", \"docket_number\": \"No. 31776\", \"first_page\": \"329\", \"last_page\": \"340\", \"citations\": \"217 W. Va. 329\", \"volume\": \"217\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T23:54:17.348486+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice ALBRIGHT and Justice STARCHER concur and file concurring opinions.\", \"parties\": \"William K. STERN, et al., Plaintiffs Below, Appellees Franklin Stump, Danny Gunnoe and Teddy Joe Hoosier, Appellants v. CHEMTALL INCORPORATED, a Georgia Corporation, et al., Defendants Below, Appellees\", \"head_matter\": \"617 S.E.2d 876\\nWilliam K. STERN, et al., Plaintiffs Below, Appellees Franklin Stump, Danny Gunnoe and Teddy Joe Hoosier, Appellants v. CHEMTALL INCORPORATED, a Georgia Corporation, et al., Defendants Below, Appellees\\nNo. 31776.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted Feb. 23, 2005.\\nDecided May 31, 2005.\\nOpinion of Chief Justice Albright July 6, 2005.\\nOpinion of Justice Starcher July 14, 2005.\\nR. Dean Hartley, J. Zachary Zatezalo, Michael P. Giertz, Hartley & O\\u2019Brien, P.L.L.C., Wheeling, and E. William Harvit, Harvit & Schwartz, L.C., Charleston, and Bradley 01-daker, Bailey, Stultz, Oldaker & Greene, P.L.L.C., Weston, for William K. Stem, et al.\\nScott S. Segal, Deborah L. McHenry, The Segal Law Firm, Charleston, and Theodore Goldberg, David B. Rodes, Goldberg, Persky, & White, Pittsburgh,- PA, for Franklin Stump, et al.\\nLanders P. Bonenberger, Jeffrey A. Holmstrand, McDermott & Bonenberger, Wheeling, for Chemtall, Inc.\\nRobert P. Martin, Todd M. Sponseller, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Charleston, for Zinkan Enterprises.\\nHarry G. Shaffer, Shaffer & Shaffer, Madison, and Mark P. Fitzsimmons, Theresa A. Queen, Steptoe & Johnson, L.L.P., Washington, DC, for Ciba Specialty Chemicals Corp.\\nC. James Zeszutek, Denise D. Klug, Thorp, Reed & Armstrong, Pittsburgh, PA, for Ondeo Naleo Co.\\nHeather Heiskell Jones, Spilman, Thomas & Battle, Charleston, for Cytee Industries, Inc.\", \"word_count\": \"6107\", \"char_count\": \"37826\", \"text\": \"PER CURIAM:\\nThis proceeding involves appellants, Franklin Stump, Danny Gunnoe, and Teddy Joe Hoosier, along with others (hereinafter, the \\\"Intervenors\\\") who appeal the Circuit Court of Marshall County's January 15, 2004, denial of their motion to intervene in a class action (hereinafter, the \\\"Stem litigation\\\") for medical monitoring for asymptomatic coal preparation plant workers arising out of the alleged chemical exposure to an industrial water cleaner. Subsequent to the Interve-nors' appeal to this Court, the class in which the Intervenors sought intervention was de-certified by this Court's decision in State ex rel. Chemtall, Inc. v. Madden, 216 W.Va. 443, 607 S.E.2d 772 (2004). The Intervenors are also the plaintiffs in a civil action currently pending in the Circuit Court of Boone County styled Denver and Debra Pettry, et al., v. Peabody Holding Company, et al., Case No. 02-C-58 (hereinafter \\\"the Pettry litigation\\\"), wherein they are seeking medical monitoring relief against some of the same defendants in the Stem litigation.\\nDuring the consideration of this appeal, a petition for a writ of mandamus and/or prohibition styled State ex rel. CIBA Speciality Chemical Corporation, et al. v. The Honorable E. Lee Schlaegel, Judge of the Circuit Court of Boone County, et al. and assigned Case No. 042100 was filed in this Court by several of the defendants in the Pettry litigation. The petitioners therein sought to compel the Circuit Court of Boone County to transfer and consolidate the Stem litigation with the Pettry litigation pursuant to Rule 42(b) of the West Virginia Rules of Civil Procedure. While we had not issued a Rule to Show Cause in Case No. 042100, we allowed the parties to argue the consolidation issue during oral argument of the Stem appeal because of the interrelatedness of the two matters.\\nBased upon the parties' briefs and arguments in this proceeding as well as the pertinent authorities, the Circuit Court of Marshall County's January 15, 2004, order is reversed to the extent it is inconsistent with this opinion. Moreover, given our reversal of the Circuit Court of Marshall County's order in the Stern litigation, we find that the issues raised in the petition for an extraordinary writ filed by the Pettry defendants are moot. Accordingly, we decline to issue a Rule to Show Cause in that matter.\\nI.\\nFACTUAL AND PROCEDURAL HISTORY\\nOn March 5, 2003, appellee, William K. Stern, (hereinafter \\\"Stern\\\"), filed an action in the Circuit Court of Marshall County on behalf of a class of coal preparation plant workers against the suppliers of acrylamide, a chemical to which they were exposed (hereinafter the \\\"Stem litigation\\\"). Some of the suppliers of acrylamide specifically named in the Stem litigation include appellees, Ondeo Naleo Co. (hereinafter, \\\"Ondeo\\\"), CIBA Specialty Chemicals Corp. (hereinafter \\\"CIBA\\\"), Cytec Industries, Inc., Chemtall, Inc. (hereinafter, \\\"Chemtall\\\"), G.E. Betz, Inc., Zinkan Enterprises, and Stockhausen, Inc.\\nAs previously noted, nearly one year earlier, on March 28, 2002, Intervenors Franklin Stump, Danny Gunnoe, along with several other individuals, filed a separate putative class action in the Circuit Court of Boone County on behalf of West Virginia coal treatment workers seeking medical monitoring re lief against several of the same defendants as in the Stem case, based on the same exposure to acrylamide with the same resulting risk for the same diseases (hereinafter the \\\"Pettry litigation\\\"). The Pettry litigants, however, alleged numerous additional claims such as personal injury, loss of enjoyment of life, emotional distress, and annoyance and inconvenience, all of which were not asserted by the current litigants in the Stem litigation.\\nOn September 26, 2003, the Circuit Court of Marshall County certified the Stem case as a class action, with a broadly defined class that included the Intervenors and the entire putative class from the Pettry case as well as coal preparation plant workers in West Virginia, Virginia, Illinois, Indiana, Pennsylvania, Ohio, and Tennessee. Following the class certification in Stem, on October 28, 2003, Intervenors Stump and Gunnoe moved to intervene on behalf of themselves and others similarly situated claiming that they had a right to intervene as class members whose interests were not adequately protected by the representative plaintiffs. In addition, In-tervenor Hoosier moved to intervene on behalf of water treatment workers with similar medical monitoring claims based upon exposure to the same chemical to prevent the duplication of effort and potential inconsistent results that would necessarily occur following uncoordinated simultaneous prosecution of overlapping class actions.\\nOn January 15, 2004, the Circuit Court of Marshall County denied the Intervenors' motion to intervene. The circuit court stated that under Rule 24(b) of the West Virginia Rules of Civil Procedure, the intervention sought was permissive and should not be allowed because such intervention would unduly delay the adjudication of the rights of the original parties. The circuit court also found with regard to Intervenor Hoosier and the water treatment workers, that they did not have a substantial interest in the Stem litigation.\\nOn June 24, 2004, we granted the Interve-nors' petition for appeal to this Court of the Circuit Court of Marshall County's January 15, 2004, denial of their motion to intervene. On December 2, 2004, this Court in State ex rel. Chemtall, Inc. v. Madden, 216 W.Va. 443, 607 S.E.2d 772 (2004), decertified the class in Stem in which the Intervenors seek to participate. Moreover, following a separate action filed by several of the defendants involved in the Pettry litigation, on June 17, 2004, the Circuit Court of Boone County denied the defendants' motion to transfer and. consolidate the Stem litigation with the Pettry litigation. On November 5, 2004, the Pettry defendants then filed in this Court the petition for a writ of mandamus and/or prohibition in Case No. 042100 seeking to compel the Circuit Court of Boone County to transfer and consolidate the Stem litigation with the Pettry litigation pursuant to Rule 42(b) of the West Virginia Rules of Civil Procedure.\\nThe subject of the appeal before this Court is the January 15, 2004, denial of the Interve-nors' motion to intervene by the Circuit Court of Marshall County. We are also called upon to consider the petition for a writ of mandamus and/or prohibition filed against the Circuit Court of Boone County in Case No. 042100.\\nII.\\nSTANDARD OF REVIEW\\nAs set forth above, the Intervenors are appealing an order of the Circuit Court of Marshall County denying their motion to intervene in the Stem litigation. In Syllabus Point 1 of Coordinating Council for Independent Living, Inc. v. Palmer, 209 W.Va. 274, 546 S.E.2d 454 (2001), we held that:\\n\\\"In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.\\\" Syllabus point 2, Walker v. West Virginia Ethics Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997).\\nAlso, as discussed above, we have considered the issue raised in the petition for a writ of mandamus and/or prohibition filed by the Pettry defendants. Since the petition seeks to have this Court enter an order directing the circuit court to grant various types of relief, we will treat it as a petition for a writ of mandamus seeking to compel the Circuit Court of Boone County to act accordingly. We have stated that a de novo standard of review applies to a circuit court's decision to grant or deny a writ of mandamus. McComas v. Board of Educ. of Fayette County, 197 W.Va. 188, 193, 475 S.E.2d 280, 285 (1996). This Court has also held that:\\nA writ of mandamus will not issue unless three elements coexist-(l) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.\\nSyllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969). Accord, Syllabus Point 5, Phillip Leon M. v. Greenbrier County Board of Education, 199 W.Va. 400, 484 S.E.2d 909 (1996), modified in part, Cathe A. v. Doddridge County Bd. of Educ., 200 W.Va. 521, 490 S.E.2d 340 (1997); Syllabus Point 2, State ex rel. Blankenship v. Richardson, 196 W.Va. 726, 474 S.E.2d 906 (1996); Syllabus Point 1, Hickman v. Epstein, 192 W.Va. 42, 450 S.E.2d 406 (1994); Syllabus Point 1, State ex rel. McGraw v. West Virginia Ethics Com'n, 200 W.Va. 723, 490 S.E.2d 812 (1997). Thus, with these standards in mind, we consider the parties' arguments.\\nIII.\\nDISCUSSION\\nThe Intervenors argue that the Circuit Court of Marshall County failed to allow them to intervene as of right under. Rule 24(a) of the West Virginia Rules of Civil Procedure. They argue that they have met the requirements as outlined by Syllabus Point 2 of State ex rel. Ball v. Cummings, 208 W.Va. 393, 540 S.E.2d 917 (1999), which provides:\\nWest Virginia Rule of Civil Procedure 24(a)(2) allows intervention of l'ight in an action if an applicant meets four conditions: (1) the application must be timely; (2) the applicant must claim an interest relating to the property or transaction which is the subject of the action; (3) disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect that interest; and (4) the applicant must show that the interest will not be adequately represented by existing parties.\\nThe Intervenors contend that their motion was timely filed and that although courts have denied intervention following class certification, there is no requirement that a motion to intervene must precede certification. Moreover, the Intervenors state that their need to protect their interests through intervention did not arise in Stem until the class was certified with respect to the same claims that were being litigated in the Pettry litigation. The Intervenors further declare that their interest relates to the subject of the action and is substantial because each class member's right to medical monitoring is definable, protectable, and specific.\\nAdditionally, the Intervenors point out that they will be bound by any judgment disposing of the Stem litigation unless it is determined upon collateral review that the representation was not adequate. The In-tervenors also say that their interests will not be adequately represented by the existing Stem plaintiffs who have conceded that those who have suffered no manifest injury are not eligible to represent a class of persons who allegedly suffered injury. ' Thus, the Intervenors argue that the interests of class members such as Intervenor Stump are not adequately represented as Stump and those similarly situated, who have already sustained physical injury attributable to chemical exposure, are likely to warrant different treatment at the remedial stages of the litigation.\\nThe Intervenors also argue that even if this Court determines that they do not have a right to intervene under W.Va.R.Civ.Pro. Rule 24(a), then they should be permitted to intervene under W.Va.R.Civ.Pro. Rule 24(b) which provides:\\nUpon timely application anyone may be permitted to intervene in an action: (1) when a statute of this State confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order adminis tered by a federal or State governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.\\nThe Intervenors contend that they have been parties to the Pettry action which was filed nearly one year prior to the Stem litigation, and that intervention is necessary to avoid duplicative litigation as both actions should be combined and managed by one court. The Intervenors say that almost every question raised by their claims is in common with the claims of the class in the Stem litigation. The Intervenors further argue that the objections by the Stem litigants are founded upon a misconception as to the nature of their proposed complaint. Thus, the Intervenors maintain that intervention will allow them to argue the same theories based upon the same facts and law to currently unrepresented or inadequately represented persons in the Stem litigation.\\nConversely, Stern argues that the Interve-nors do not satisfy the four requirements of intervention of right set forth in Rule 24(a). Initially, Stern says that Intervenors Stump and Gunnoe are symptomatic for certain injuries and seek individual damages from their exposure to 114 different chemicals,' only one of which is the chemical involved in the Stem litigation. Moreover, Stern maintains that Intervenor Hoosier is not currently named as a plaintiff in any civil action regarding chemical exposure nor does he meet the class definition of the class formerly certified in Stem. Additionally, Stern contends that the Intervenors have no \\\"direct and substantial interest\\\" in the Stem litigation as they have their own civil action in which they can seek damages including medical monitoring.\\nStern declares that the disposition of the Stem litigation will neither impair nor impede Intervenor Stump or Gunnoe's ability to protect their interests as they have not demonstrated how they might be disadvantaged by the disposition in the Stem litigation. Stern further avers that even if the Interve-nors could show that they would be disadvantaged, intervention should still be denied because the interests of the parties in the Stem litigation will be prejudiced by their intervention. Stern argues that the Intervenors are adequately represented by the Pettny litigation in Boone County.\\nStern further asserts that the Intervenors are not entitled to permissive intervention because none of them can satisfy Rule 24(b) of the West Virginia Rules of Civil Procedure. Stem says that intervention would cause the scope of the Stem action to become broadened. Stern also contends that the intervention by Intervenor Hoosier would create a wholly new and unrelated action for water treatment workers, which will greatly expand the scope of the class of asymptomatic coal preparation plant workers formerly certified in the Stem litigation. According to Stem, such unwarranted expansion of the class would subject the parties in Stem to substantial prejudice as the Stem plaintiffs would have to determine how to prove liability for two sets of incongruous classes while simultaneously having to maintain the commonality and typicality required of class actions under Rule 23. Stem argues that the claims of Intervenor Hoosier involve a different industry, products, exposures, and defendants.\\nAdditionally, Chemtall and Ondeo maintain that the fact that no class presently exists in the Stem action is not a technicality and that the Intervenors' motion to intervene has. been rendered moot by this Court's decision to decertify the Stem class in State ex rel. Chemtall, Inc. v. Madden, 216 W.Va. 443, 607 S.E.2d 772 (2004). Chemtall also contends that transfer and consolidation with the Pet-try action is not a viable alternative and no longer appropriate given the lapse of time. Chemtall argues that the Pettry litigation has remained effectively dormant for two years and eight months, while the Stem litigation has proceeded at astonishing speed with dozens of depositions taken, hundreds of requests'for admissions and interrogatories an swered, and tens of thousands of documents produced.\\nMoreover, CIBA argues that transfer of the Stem litigation from the Circuit Court of Marshall County to the Circuit Court of Boone County under Rule 42(b) of the West Virginia Rules of Civil Procedure is the superior procedure over the intervention sought by the Intervenors. W.Va.R.Civ.Pro. Rule 42(b) provides:\\nWhen two or more actions arising out of the same transaction or occurrence are pending before different courts or before a court and a magistrate, the court in which the first such action was commenced shall order all the actions transferred to it or any other court in which any such action is pending. The court to which the actions are transferred may order a joint hearing or trial of any or all of the matters in issue in any of the actions; it may order all the actions consolidated; and it may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. Whenever one of the actions is pending before a magistrate and a judgment is rendered by the magistrate for $15.00 or less, such judgment of the magistrate shall in no manner affect the other action pending in the court; the doctrine of res judicata shall not apply to such judgment, nor shall any such judgment of the magistrate be admissible in evidence in the trial of the other action pending in the court.\\nThe Stem litigants, however, argue against transfer and consolidation of both actions stating that the Stem and Pettry actions are significantly different in both scope and intent. Stern maintains that Pettry involves a limited class of West Virginia residents seeking monetary damage awards for individual injuries from chemicals used in and around a limited number of coal preparation plants in West Virginia, while Stem involves a class of asymptomatic coal preparation plant workers who worked in all parts of West Virginia or one of six other states seeking injunctive relief for exposure to acrylamide.\\nThe Intervenors did not state a position with regard to the petition for an extraordinary writ due to their pending appeal before this Court seeking intervention in Stem. They argue that if they are permitted to intervene in Stem, then the concerns of CIBA, Ondeo, and Cytec would be addressed rendering the petition for an extraordinary writ moot. We agree with the Intervenors that our decision today with regard to their appeal of the Circuit Court of Marshall County's denial of their motion to intervene in the Stem action renders the Pettry defendants' petition for an extraordinary writ moot and therefore, we deny to issue a Rule to Show Cause in that petition.\\nThe issues and the parties involved in both the Pettry litigation and the Stem litigation are numerous. The Pettry litigation includes claims for personal injury, loss of enjoyment of life, emotional distress, and annoyance and inconvenience, while the litigants in both the Pettry and Stem actions seek medical monitoring. Moreover, we recognize that as of the time of this appeal, not every party involved in either the Pettry or the Stem litigation is a party to both actions; however, most of the parties are involved in both cases.\\nAdditionally, as the Stem plaintiffs point out, there may be significantly different aspects to the actual remedies sought by the two different proposed class actions due to the fact that even though the actions are similar, they are not identical. Even so, we believe that the issues are similar enough that many of the same depositions, requests for admissions, interrogatories, and various other discovery requests -will be identical in nature. We further recognize that the litigants in the Stem action are clearly not in the same place with regard to the completion of discovery as those in the Pettry litigation, who we were advised may be two years behind the Stem litigants with regard to discovery.\\nIt is with these issues in mind that we believe we are called upon to exercise our inherent authority pursuant to the Constitu tion of West Virginia to transfer the entire Pettry litigation to the Circuit Court of Marshall County for further disposition of both causes of action. We further order that the Pettry litigants be permitted to intervene in the Stem action pursuant to W.Va.R.Civ.Pro. 24(b)(2).\\nIt is obvious to us that intervention should have been permitted due to the questions of law and fact in common between the parties. In Syllabus Point 3 of Bower v. Westinghouse Elec. Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999), we held:\\nIn order to sustain a claim for medical monitoring expenses under West Virginia law, the plaintiff must prove that (1) he or she has, relative to the general population, been significantly exposed; (2) to a proven hazardous substance; (3) through the tor-tious conduct of the defendant; (4) as a proximate result of the exposure, plaintiff has suffered an increased risk of contracting a serious latent disease; (5) the increased risk of disease makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of the exposure; and (6) monitoring procedures exist that make the early detection of a disease possible.\\nIn this case, the common questions necessarily include: whether acrylamide is a proven hazardous substance; whether the defendants' conduct in supplying acrylamidecontaining products was tortious; whether those exposed to acrylamide face an increased risk of contracting a serious latent disease; whether the increased risk makes monitoring reasonably necessary; and whether monitoring procedures are available. We recognized in Ball, 208 W.Va. at 403, 540 S.E.2d at 927, that: \\\"Doubts regarding the propriety of permitting intervention should be resolved in favor of allowing it, because this serves the judicial system's interest in resolving all related controversies in a single action.\\\" (citations omitted). We believe that the circuit court abused its discretion by not permitting the Pettry litigants to intervene.\\nMoreover, our Constitution provides that \\\"[g]eneral supervisory control over all intermediate appellate, circuit, and magistrate courts resides in the Supreme Court of Appeals. W.Va. Const., Art. VIII, \\u00a7 3.\\\" Syllabus Point 1, Carter v. Taylor, 180 W.Va. 570, 378 S.E.2d 291 (1989). See also, Rogers v. Albert, 208 W.Va. 473, 481, 541 S.E.2d 563, 571 (2000); Gilman v. Choi, 185 W.Va. 177, 406 S.E.2d 200 (1990); State ex rel. Canterbury v. Paul, 205 W.Va. 665, 672, 520 S.E.2d 662, 669 (1999); State ex rel. Farley v. Spaulding, 203 W.Va. 275, 299, 507 S.E.2d 376, 400 (1998). The purpose of this constitutional clause is to provide a unified court system and to centralize administrative authority in this Court. Thus, it is our task to supervise the administration of justice in the circuit courts to ensure that fair standards of procedure are maintained. To this end, we believe that it is imperative th\\u00e1t both the Pettry and the Stem actions be handled by one judge in one circuit court.\\nJudicial supervision and responsibility \\\"implies the duty of establishing and maintaining civilized standards of procedure and evidence.\\\" McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 613, 87 L.Ed. 819 (1943). See, Dimon v. Mansy, 198 W.Va. 40, 46, 479 S.E.2d 339, 345 (1996). We also recognize that \\\" '[a] court \\\"has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction.\\\" 14 Am. Juris., Courts, section 171.' Syllabus Point 3, Shields v. Romine, 122 W.Va. 639, 13 S.E.2d 16 (1940).\\\" Syllabus Point 1, State ex rel. Rees v. Hatcher, 214 W.Va. 746, 591 S.E.2d 304 (2003). While the underlying issues in Romine and Hatcher dealt with the exercise of authority within a circuit court, the principle necessarily applies to this Court as the inherent power of the judiciary has been well recognized in this jurisdiction. See e.g., Virginia Electric & Power Co. v. Haden, 157 W.Va. 298, 306, 200 S.E.2d 848, 853 (1973); Syllabus Point 2, Frazee Lumber Co. v. Haden, 156 W.Va. 844, 197 S.E.2d 634 (1973).\\nMoreover, in Daily Gazette Co., Inc. v. Canady, 175 W.Va. 249, 251-252, 332 S.E.2d 262, 264-265 (1985), we explained that such inherent power has been recognized in a variety of contexts at both the appellate and trial court levels including:\\nIn re Pauley, 173 W.Va. 228, 314 S.E.2d 391, 396 (1984) [1983] (provision and supervision of court personnel); Syl. pt. 4, Prager v. Meckling, 172 W.Va. 785, 310 S.E.2d 852 (1983) (imposition of sanctions to maintain a fair and orderly trial); In re L.E.C., 171 W.Va. 670, 301 S.E.2d 627, 630 (1983) (supervision, regulation, definition, and control of the practice of law); Perlick & Co. v. Lakeview Creditor's Trustee Committee, 171 W.Va. 195, 298 S.E.2d 228, 235 (1982) (elimination of dormant cases from judicial dockets); E.H. v. Matin, 168 W.Va. 248, 284 S.E.2d 232 (1981) (transfer of actions to lower tribunals for further proceedings); State v. Daggett, 167 W.Va. 411, 280 S.E.2d 545, 556 n. 3 (1981) (compulsion of attendance by witnesses); Sparks v. Sparks, 165 W.Va. 484, 269 S.E.2d 847, 848 (1980) (grant of custody of a child to a person outside jurisdiction of court or permission to one who has custody to take child to another state or foreign jurisdiction); Hendershot v. Hendershot, 164 W.Va. 190, 263 S.E.2d 90, 96-97 (1980) (imposition of civil contempt sanctions); State ex rel. Goodwin v. Cook, 162 W.Va. 161, 171-72, 248 S.E.2d 602, 607-08 (1978) (appointment of special prosecutor); Syl. pt. 3, State ex rel. Bagley v. Blankenship, 161 W.Va. 630, 246 S.E.2d 99 (1978) (determination of funding necessary for the effective operation of the judiciary); State ex rel. Moran v. Ziegler, 161 W.Va. 609, 614, 244 S.E.2d 550, 553 (1978) (disqualification of private prosecutor); Eastern Associated Coal Corp. v. Doe, 159 W.Va. 200, 208, 220 S.E.2d 672, 678 (1975) (enforcement of judicial orders); Corbin v. Corbin, 157 W.Va. 967, 980, 206 S.E.2d 898, 906 (1974) (modification of divorce decrees); Virginia Electric & Power Co. v. Haden, 157 W.Va. at 306, 200 S.E.2d at 853 (transfer of actions to administrative agencies for further proceedings); State v. Cowan, 156 W.Va. 827, 834, 197 S.E.2d 641, 645 (1973) (direction of pretrial discovery); Maxwell v. Stalnaker, 142 W.Va. 555, 563, 96 S.E.2d 907, 912 (1957) (adjudication of payment of costs); State ex rel. Chemical Tank Lines, Inc. v. Davis, 141 W.Va. 488, 493, 93 S.E.2d 28, 31 (1956) (prescription and enforcement of rules and regulations for the conduct of judicial business).\\nIn Mansy, we also wrote:\\nOf course, our supervisory and rulemak-ing authority is not a form of free-floating justice, untethered to legal principle. Attempts by an appellate court, for example, to use broad supervisory and rulemaking authority as a way to control the properly v\\u00e9sted discretion of the trial court should be squarely rejected. But, on occasion, and we think this is one, we must act to secure rights and fairness when we are persuaded a procedure followed in a trial court is wrong.\\nId. at 46, 479 S.E.2d at 345. We also explained in Mansy that \\\"we may require lower courts to adhere to procedures deemed desirable as a matter of sound judicial practice even though the procedures may not be directed either by statute or the Constitution.\\\" Id. at 50, 479 S.E.2d at 349 (1996). See also, In Interest of Tiffany Marie S., 196 W.Va. 223 n. 17, 470 S.E.2d 177 n. 17 (1996) (stating that: \\\"Under our supervisory authority over circuit courts, we may require the courts to follow procedures deemed desirable from the viewpoint of sound judicial policy and practice although they are not specifically commanded by the Constitution or the Legislature.\\\").\\nConsequently, we believe that it is in the best interest of all of the parties and in the interest of the administration of justice that these cases be tried in the same circuit court in front of the same circuit judge. Accordingly, we instruct the Circuit Court of Boone County to immediately transfer the Pettry case to the Circuit Court of Marshall County. In doing so, however, we are not ordering that the cases be consolidated. Instead, we specifically order that intervention be granted to the Pettry litigants. We leave any additional concerns of the parties to the Circuit Court of Marshall County to reconsider in light of this decision as we believe that the circuit court is in a better position to manage this litigation and to protect the interests of both the Pettry and Stem litigants. The circuit judge should manage the cases and the issues herein as he deems appropriate.\\nLitigating these eases in one circuit court in front of the same judge will help to ensure that none of the parties is prejudiced by the potential of duplication of efforts and possible inconsistent results. Of course, the circuit judge may in his discretion after consideration of all appropriate factors consolidate these cases or try them separately. We believe that allowing one circuit judge to handle both cases -will alleviate the concerns that some interests of potential class members are not adequately protected by the current representative plaintiffs and will help to prevent any unnecessary expenses or the possibility of adverse decisions that could occur in separate circuit courts.\\nWe also note that our decision to send the Pettry litigation to the Circuit Court of Marshall County should not be construed \\u00e1s a determination that we believe one circuit judge is more qualified to handle these cases than another circuit judge. We made the determination to send the Pettry litigation to the Circuit Court of Marshall County based solely upon the fact that the Stern litigation is much further along with discovery and therefore, the Circuit Court of Marshall County should necessarily be more familiar with the litigants and the surrounding issues.\\nIV.\\nCONCLUSION\\nBased upon the foregoing, we hereby reverse the Circuit Court of Marshall County's January 15, 2004, denial of the Intervenors' motion to intervene in the Stem class action for medical monitoring, and remand the matter to the Circuit Court of Marshall County for the immediate entry of an order as provided herein and for further proceedings consistent with this opinion. We further order that leave to intervene be granted to the Pettry litigants and that the Pettry litigation be transferred from the Circuit Court of Boone County to the Circuit Court of Marshall County and assigned to Judge John T. Madden for further disposition consistent with this opinion. In addition, we refuse to issue a Rule to Show Cause in Case No. 042100 as we find the issues therein to be fully disposed of by our decision with regard to the Intervenors' direct appeal.\\nReversed and remanded with directions.\\nChief Justice ALBRIGHT and Justice STARCHER concur and file concurring opinions.\\nJustice DAVIS and Justice BENJAMIN deeming themselves disqualified, did not participate in the decision of this case.\\nJudge PRATT and Judge WILSON sitting by temporary assignment.\\n. Hoosier sought to intervene on behalf of water treatment workers with similar medical monitoring claims based upon exposure to the same chemical at issue in Stern. At the time of this appeal, Hoosier was not a party to the Pettry litigation or any litigation arising out of the alleged exposure to any chemicals. Nonetheless, Hoosier maintains that while he is not a named member of the Stern class, he faces a similar risk of the same diseases and remains at an increased risk for cancer and other diseases and will be prejudiced if intervention is denied.\\n. The petition for writ of mandamus and/or prohibition in Case No. 042100 was filed in this Court after the Circuit Court of Boone County on June 17, 2004, denied a similar petition filed by the defendants to transfer and or consolidate the Stern litigation with the Pettry litigation.\\n. See footnote 1.\\n. CIBA, Ondeo, and Cytec seek this relief through a petition for a writ of prohibition and/or mandamus which was filed in this Court on November 5, 2004, in Petition Case No. 042100.\\n. The Reorganization Amendment rewrote Article VIII, substituting Secs. 1 to 15 for former Secs. ,1 to 30, amended Sec. 13 of Article III, and added Secs. 9 to 13 to Article IX.\"}"
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+"{\"id\": \"9368861\", \"name\": \"Bradley S. ROHRBAUGH, Plaintiff Below, Appellant, v. WAL-MART STORES, INC., A Delaware Corporation; Greg Sharp; John Wilshere; and Sherry Harper, Defendants Below, Appellees\", \"name_abbreviation\": \"Rohrbaugh v. Wal-Mart Stores, Inc.\", \"decision_date\": \"2002-10-11\", \"docket_number\": \"No. 30441\", \"first_page\": \"358\", \"last_page\": \"368\", \"citations\": \"212 W. Va. 358\", \"volume\": \"212\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T20:06:30.689801+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Bradley S. ROHRBAUGH, Plaintiff Below, Appellant, v. WAL-MART STORES, INC., A Delaware Corporation; Greg Sharp; John Wilshere; and Sherry Harper, Defendants Below, Appellees.\", \"head_matter\": \"572 S.E.2d 881\\nBradley S. ROHRBAUGH, Plaintiff Below, Appellant, v. WAL-MART STORES, INC., A Delaware Corporation; Greg Sharp; John Wilshere; and Sherry Harper, Defendants Below, Appellees.\\nNo. 30441.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted Sept. 17, 2002.\\nDecided Oct. 11, 2002.\\nMichael J. Florio, Esq., Florio Law Offices, Clarksburg, for Appellant.\\nSandra K. Law, Esq., Schrader, Byrd & Companion, Wheeling, for Appellees.\", \"word_count\": \"5845\", \"char_count\": \"35987\", \"text\": \"DAVIS, Chief Justice.\\nBradley Rohrbaugh, appellant/plaintiff below (hereinafter referred to as \\\"Mr. Rohr-baugh\\\"), appeals an order entered by the Circuit Court of Harrison County denying his motion for a new trial. Mr. Rohrbaugh filed an action against Wal-Mart Stores, Inc., appellee/defendant below (hereinafter referred to as \\\"Wal-Mart\\\"), alleging invasion of privacy, disability discrimination and workers' compensation discrimination. The jury returned a verdict in favor of Mr. Rohrbaugh on the invasion of privacy claim, finding that he was entitled to punitive damages even though he was not awarded compensatory damages. On the remaining two discrimination claims, the jury returned a verdict in favor of Wal-Mart. * Here, Mr. Rohrbaugh seeks a new trial on damages for the invasion of privacy claim. He also seeks a new trial on damages and liability for the disability discrimination and workers' compensation discrimination claims. After reviewing the briefs and record in this case, we reverse the denial of a new trial on damages for the invasion of privacy claim. However, we affirm the circuit court's denial of a new trial on the disability discrimination and workers' compensation discrimination claims.\\nI.\\nFACTUAL AND PROCEDURAL HISTORY\\nMr. Rohrbaugh was hired by Wal-Mart at its Clarksburg store, in August of 1997. Although he was first hired to work in Wal-Mart's lawn and garden department, Mr. Rohrbaugh ultimately worked as a \\\"stocker\\\" in the store's toy department.\\nAlthough Wal-Mart initially considered Mr. Rohrbaugh's work performance to be excellent, he nevertheless exhibited attendance problems. Following the back injury he incurred at work on February 9, 2000, Mr. Rohrbaugh's attendance problems worsened, and his excellent standing as a Wal-Mart employee declined. Several days after the injury, Wal-Mart referred Mr. Rohrbaugh to a physician for an examination and for drug and alcohol testing. Although there was no indication that Mr. Rohrbaugh used drugs or alcohol, Wal-Mart had a policy of having all injured workers undergo such testing. The physician reported that Mr. Rohrbaugh could, with certain limitations, return to work on February 19, 2000. Mr. Rohrbaugh could not lift anything heavier than fifteen pounds and could walk only four horns per day. The physician also reported that there was no indication of drug or alcohol use by Mr. Rohrbaugh. Also as a result of this injury, Mr. Rohrbaugh filed a workers' compensation claim, which was not contested by Wal-Mart. Nevertheless, Mr. Rohrbaugh was awarded no temporary or permanent partial disability benefits.\\nAfter Mr. Rohrbaugh's injury, he appears to have continued his pattern of attendance problems. On February 25, 2000, two of Mr. Rohrbaugh's superiors met with him and told him that he had one \\\"last chance\\\" to improve his attendance. Despite the warning, Mr. Rohrbaugh's work attendance did not improve to the satisfaction of Wal-Mart. Thus, on March 27, 2000, Mr. Rohrbaugh was terminated because of excessive lateness and absences.\\nFollowing his termination, Mr. Rohrbaugh filed the instant action against Wal-Mart alleging his right to privacy had been invaded by the requirement that he undergo blood and alcohol tests and that his termination constituted disability discrimination and workers' compensation discrimination. The case was tried before a jury on June 5, 2001. On June 8, a jury returned a verdict finding no disability discrimination or workers' compensation discrimination attended Mr. Rohrbaugh's termination. However, the jury concluded that Wal-Mart did invade Mr. Rohrbaugh's privacy by requiring the blood and alcohol tests. The jury also found that Mr. Rohrbaugh was not entitled to compensatory damages, but that he was entitled to punitive damages as a result of the inva sion of privacy claim. From this jury verdict, the trial court determined that because no compensatory damages had been awarded, a hearing on punitive damages was not required. Mr. Rohrbaugh filed post-trial motions, which the trial court denied. From these adverse rulings, Mr. Rohrbaugh now appeals.\\nII.\\nSTANDARD OF REVIEW\\nIn this proceeding we have been called upon to review the trial court's denial of Mr. Rohrbaugh's motion for a new trial as to damages on his invasion of privacy claim, and as to liability and damages on the disability discrimination and workers' compensation discrimination claims. This Court has held that,\\n[although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.\\nSyl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). We have also more succinctly held that, in examining an order denying a new trial, we review \\\"the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.\\\" Syl. pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). With these standards set forth, we now turn to the issues before us.\\nIII.\\nDISCUSSION\\nA. Awarding Punitive Damages Without Compensatory Damages\\nThe first issue we must address involves the verdict rendered by the jury on Mr. Rohrbaugh's cause of action for invasion of privacy. The trial court submitted a verdict form to the juiy which asked the jury to determine liability and compensatory damages, and to answer the question of whether or not Mr. Rohrbaugh was entitled to receive punitive damages for the invasion of privacy claim. The jury then rendered a verdict finding Wal-Mart violated Mr. Rohrbaugh's right to privacy by subjecting him to blood and alcohol tests. However, the jury determined that Mr. Rohrbaugh was not entitled to compensatory damages. In spite of failing to award compensatory damages, the jury responded that Mr. Rohrbaugh was entitled to receive punitive damages. Mr. Rohrbaugh moved the court for a new trial on the issue of such damages, which motion the trial court denied. In doing so, the trial court ruled that compensatory damages are not\\npresumed. The trial court further determined that, under this Court's decision in Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991), there could be no award of punitive damages when compensatory damages had not been awarded.\\nAlthough the trial court was correct in finding that Garnes prohibits an award of punitive damages when there has not been an award of compensatory damages, the trial court was wrong in holding that Garnes precluded a new trial on damages. Garnes involved a nuisance action, wherein a jury awarded the plaintiffs punitive damages, but not compensatory damages. Under the law existing at the time of the Garnes jury's verdict, this Court had held, in Syllabus point 3, in part, of Wells v. Smith, 171 W.Va. 97, 297 S.E.2d 872 (1982), that \\\"the failure of the jury to reten an award of compensatory damages against a particular defendant will not of itself allow that defendant to escape liability for punitive damages assessed against him.\\\" Garnes ultimately overruled Wells and held that a jury could not be allowed \\\"to return punitive damages without finding compensatory damages[.]\\\" Syl. pt. 1, in part, Garnes, 186 W.Va. 656, 413 S.E.2d 897.\\nUnlike the trial court's ruling in the case sub judice, the remedy provided in Garnes was not that of vacating the jury's award of punitive damages and granting judgment for the defendant. Rather, Garnes reversed, the judgment for the plaintiffs and awarded a new trial to the defendant. Here, however, the trial court, in effect, vacated the jury's determination that Mr. Rohrbaugh was entitled to punitive damages and granted judgment to Wal-Mart. Garnes does not support such a disposition.\\nMr. Rohrbaugh additionally argues that this Court's decision in Payne v. Gundy, 196 W.Va. 82, 468 S.E.2d 335 (1996), required the trial court to grant his motion for a new trial on damages. Payne involved a civil action for assault and battery that was brought by a woman against the man with whom she had cohabited. The jury returned a verdict awarding the plaintiff punitive damages, but not compensatory damages. The plaintiff moved for a new trial on damages, which the trial court denied, and from which the plaintiff appealed. This Court reversed and awarded the plaintiff a new trial on damages. In doing so, Payne relied upon Syllabus point 3 of Biddle v. Haddix, 154 W.Va. 748,179 S.E.2d 215 (1971), wherein we stated:\\nIn a civil action for recovery of damages for personal injuries in which the jury returns a verdict for the plaintiff which is manifestly inadequate in amount and which, in that respect, is not supported by the evidence, a new trial may be granted to the plaintiff on the issue of damages on the ground of the inadequacy of the amount of the verdict.\\nResponding to Mr. Rohrbaugh's argument, Wal-Mart contends that Payne is distinguishable because there was evidence of injury proven in Payne. In this regal'd, Wal-Mart asserts that Mr. Rohrbaugh failed to present any evidence of harm stemming from the invasion of privacy, and, consequently, he was not entitled to an award of damages. We disagree.\\nThe issue of damages for invasion of privacy is addressed in Section 652H of the Restatement (Second) of Torts (1977), which provides:\\nOne who has established a cause of action for invasion of his privacy is entitled to recover damages fol-\\nia) the harm to his interest in privacy resulting from the invasion;\\n(b) his mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and\\n\\u00a9 special damage of which the invasion is a legal cause.\\n(Footnote added). A majority of courts addressing the issue have adopted the Restatement's position on damages. See, e.g., Jonap v. Silver, 1 Conn.App. 550, 474 A.2d 800 (1984); Schmidt v. Ameritech Illinois, 329 Ill.App.3d 1020, 263 Ill.Dec. 543, 768 N.E.2d 303 (2002); Monroe v. Darr, 221 Kan. 281, 559 P.2d 322 (1977); Fischer v. Hooper, 143 N.H. 585, 732 A.2d 396 (1999); Leggett v. First Interstate Bank of Oregon, 86 Or.App. 523, 739 P.2d 1083 (1987); West v. Media Gen. Convergence, Inc., 53 S.W.3d 640 (Tenn.2001); Reid v. Pierce County, 136 Wash.2d 195, 961 P.2d 333 (1998). However, a minority of courts have not limited recovery to the Restatement's formulation of damages. These courts have held that if the plaintiff failed to prove actual injury, the plaintiff is nevertheless entitled to recover nominal damages. See, e.g., Doe v. High-Tech Inst., Inc., 972 P.2d 1060, 1066 (Colo.Ct.App.1999); Sabrina W. v. Willman, 4 Neb.App. 149, 540 N.W.2d 364, 371 (1995); Wecht v. PG Publ'g Co., 725 A.2d 788, 792 (Pa.Super.1999); Snakenberg v. Hartford Cas. Ins. Co., 299 S.C. 164, 383 S.E.2d 2, 6 (App.1989). See also Speiser, Krause & Gans, Torts, \\u00a7 30:8, at 872 (\\\"Nominal damages may be awarded when the evidence negatives any substantial harm.\\\").\\nIn the final analysis, we believe that the better rule to follow is that of allowing recovery for nominal damages when no actual injury is shown in an invasion of privacy action. We take this position for a fundamental reason. \\\"For every wrong there is supposed to be a remedy somewhere.\\\" Sanders v. Meredith, 78 W.Va. 564, 572, 89 S.E. 733, 736 (1916) (Lynch, J., dissenting). Indeed, \\\"the concept of American justice . pronounces that for every wrong there is a remedy. It is incompatible with this concept to deprive a wrongfully injured party of a remedy[.]\\\" O'Neil v. City of Parkersburg, 160 W.Va. 694, 697, 237 S.E.2d 504, 506 (1977). See also Gardner v. Buckeye Sav. & Loan Co., 108 W.Va. 673, 680, 152 S.E. 530, 533 (1930) (\\\"It is the proud boast of all lovers of justice that for every wrong' there is a remedy.\\\"); Syl. pt. 3, Johnson v. City of Parkersburg, 16 W.Va. 402 (1880) (\\\"When the Constitution forbids a Damage to private property and points out no remedy, and no statute gives a remedy for the invasion of the right of property thus secured, the common law, which gives a remedy for every wrong, will furnish the appropriate action for the redress of such grievances.\\\"). To permit a defendant to engage in conduct that constitutes an invasion of a plaintiffs privacy, but prevent the plaintiff from recovering damages because no compensatory damages are shown, is an illogical and unacceptable result. \\\"As for public policy, the strongest policy which appeals to us is that fundamental theory of the common law that for every wrong there should be a remedy.\\\" Lambert v. Brewster, 97 W.Va. 124, 138, 125 S.E. 244, 249 (1924).\\nThus, we hold that when a plaintiff has established liability for invasion of privacy, the plaintiff is entitled to recover damages for (1) the harm to his/her interest in privacy resulting from the invasion; (2) his/ her mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; (3) special damages of which the invasion is a legal cause; and (4) if none of the former damages is proven, nominal compensatory damages are to be awarded.\\nIn the instant proceeding, the jury found that Wal-Mart violated Mr. Rohrbaugh's right of privacy, but that there was insufficient evidence to award compensatory damages. Under our holding, the jury should have, at a minimum, awarded Mr. Rohrbaugh nominal compensatory damages. Therefore, the trial court committed reversible error in denying Mr. Rohrbaugh's motion for a new trial on damages for the invasion of privacy claim.\\nB. Evidentiary Rulings\\n1. Evidence regarding other injured employees. Mr. Rohrbaugh next argues that the trial court committed error by allowing Wal-Mart to introduce evidence of its treatment of other employees who had sustained back injuries. Wal-Mart contends that evidence of treatment of other similarly situated employees was necessary and admissible. In fact, Mr. Rohrbaugh actually introduced evidence alleging he was fired because he filed a workers' compensation claim. We agree that such evidence was admissible.\\nWe have held that \\\"[rjulings on the admissibility of evidence . are committed to the discretion of the trial court.\\\" McDougal v. McCammon, 193 W.Va. 229, 235, 455 S.E.2d 788, 794 (1995). In the instant ease, the trial court found that counsel for Mi. Rohrbaugh opened the door for the admissibility of evidence because Mr. Rohrbaugh presented evidence that other Wal-Mart employees with back injuries filed workers' compensation claims and were not fired. The trial court addressed the issue during a sidebar discussion:\\nTHE COURT: Well, I think what I'm going to do \\u2014 I think after hearing the evidence, the way its [sic] come out \\u2014 Mr. Florio, you presented evidence to show that the motive here, that the reason for the termination was the Workers' Comp injury, and that these managers, or at least Mr. Sharp, had a motive for that because when there's a Workers' Comp injury up to Fifteen Thousand Dollars ($15,000.00), the medical expenses can be charged as an expense to that store which reduces the profit, which, in turn, reduces his bonus.\\nSo I think that's been opened up and I think it's fair to ask him about other ones. And as far as the back injury is concerned, the way the evidence developed is that\\u2014 and I think the way you set this up in your Opening was that someone with a back injury is either going to have problems in the future and that's a reason why they want to get rid of a person like that, so I think I'm going to let that in with respect to the back injuries.\\nThe trial court's basis for allowing the evidence complained of was premised upon Mr. Rohrbaugh's counsel having opened the door for such evidence. Our review of the record supports the trial court's finding. Consequently, Mr. Rohrbaugh cannot now complain of error about matters he placed into evidence during his case-in-chief. \\\"'A judgment will not be reversed for any error in the record introduced by or invited by the party seeking reversal.' \\\" Syl. pt. 4, State v. Johnson, 197 W.Va. 575, 476 S.E.2d 522 (1996) (quoting Syl. pt. 21, State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 (1966)). See also In re Tiffany Marie S., 196 W.Va. 223, 233, 470 S.E.2d 177, 187 (1996) (\\\"[W]e regularly turn a deaf ear to error that was invited by the complaining party.\\\"); Shamblin v. Nationwide Mut. Ins. Co., 183 W.Va. 585, 599, 396 S.E.2d 766, 780 (1990) (\\\"[An] appellant cannot benefit from the consequences of error it invited.\\\").\\n2. Evidence of driver's license. The next evidentiary ruling complained of concerns Wal-Mart's elicitation, during trial, of testimony from Mr. Rohrbaugh that he did not have a driver's license. Mr. Rohrbaugh contends that the trial court committed error by allowing this evidence. Wal-Mart introduced this evidence on the issue of Mr. Rohr-baugh's mitigation of damages following his termination. That is, Wal-Mart argued that Mr. Rohrbaugh's \\\"lack of a driver's license would limit the number of jobs [he] would be able to obtain[.]\\\"\\nThis Court addressed the issue of mitigation of damages in Syllabus point 4 of Paxton v. Crabtree, 184 W.Va. 237, 400 S.E.2d 245 (1990), as follows:\\nOnce a claimant establishes a prima fa-cie case of discrimination and presents evidence on the issue of damages, the burden of producing sufficient evidence to establish the amount of interim earnings or lack of diligence shifts to the defendant. The defendant may satisfy his burden only if he establishes that: (1) there were substantially equivalent positions which were available; and (2) the claimant failed to use reasonable care and diligence in seeking such positions.\\nTo the extent that Wal-Mart sought to carry its burden under Paxton, the issue of Mr. Rohrbaugh's lack of a driver's license was relevant. This Court observed in Syllabus point 4 of Gable v. The Kroger Co., 186 W.Va. 62, 410 S.E.2d 701 (1991), that \\\"Rules 402 and 403 of the West Virginia Rules of Evidence direct the trial judge to admit relevant evidence, but to exclude evidence whose probative value is substantially outweighed by the danger of unfair prejudice to the defendant.\\\"\\nMr. Rohrbaugh contends that the evidence was prejudicial because it \\\"invited the jury to speculate regarding the underlying reason\\\" for not having a driver's license. We do not believe the cross-examination which brought out the fact that Mr. Rohrbaugh did not have a driver's license would lead to the prejudicial speculation Mr. Rohrbaugh suggests might have occurred. During cross-examination of Mr. Rohrbaugh, by Wal-Mart, the following testimony was elicited regarding the lack of a driver's license:\\nCOUNSEL: Where did you graduate from high school?\\nWITNESS: I didn't.\\nCOUNSEL: Do you have a GED?\\nWITNESS: No, ma'am.\\nCOUNSEL: Do you have a driver's license?\\nWITNESS: Exc\\u00faseme?\\nCOUNSEL: Do you have a driver's license?\\nWITNESS: Right now? No, ma'am.\\nCOUNSEL: You indicated that you had quit the job at Infoeision that you got after\\nWal-Mart, just recently, correct?\\nWITNESS: Yes, ma'am.\\nWe simply do not find any undue prejudice from the admission of this relevant evidence.\\n3. Evidence of conduct with other employer. Lastly, Mr. Rohrbaugh contends that the trial court committed error by allowing Wal-Mart to introduce evidence of his attendance record with Infoeision, an employer he worked for subsequent to his termination. Wal-Mart contends that this evidence was relevant to the issue of mitigation of damages. That is, Mr. Rohrbaugh's absences and lateness with Infoeision negatively impacted his income after being terminated by Wal-Mart. During cross-examination of Mr. Rohrbaugh, the following evidence was adduced regarding his work attendance at Infoeision:\\nCOUNSEL: Did you ever leave early while you worked at Infocision?\\nWITNESS: Yes, ma'am.\\nCOUNSEL: Did you ever leave early probably more than ten (10) times while you worked at Infocision?\\nWITNESS: Yes.\\nCOUNSEL: Did you ever come in late?\\nWITNESS: Yes.\\nCOUNSEL: Did you ever just not show up at all while you worked at Infocision?\\nWITNESS: Yes.\\nCOUNSEL: Did you ever call off while you were at Infocision?\\nWITNESS: Yes.\\nMr. Rohrbaugh contends that this evidence was irrelevant because he was not terminated by Infocision. Therefore, he continued to mitigate his damages. We believe Mr. Rohr-baugh misunderstands our law on the issue of mitigation of damages.\\nIn Syllabus point 2 of Mason County Board of Education v. State Stuperintendent of Schools, 170 W.Va. 632, 295 S.E.2d 719 (1982), this Court addressed the issue of mitigation of damages as follows:\\nUnless a wrongful discharge is malicious, the wrongfully discharged employee has a duty to mitigate damages by accepting similar employment to that contemplated by his or her contract if it is available in the local area, and the actual wages received, or the wages the employee could have received at comparable employment where it is locally available, will be deducted from any back pay award; however, the burden of raising the issue of mitigation is on the employer.\\nThe important language from Mason County concerns the deduction of mitigating wages the employee received or could have received. Mason County instructs that, for the purposes of a backpay award by a jury, a trial court may deduct from a verdict all wages a plaintiff could have received through reasonable efforts. See id. Consequently, it is not enough that Mr. Rohrbaugh was employed with Infocision and made \\\"X\\\" dollars. If Wal-Mart would have established that Mr. Rohrbaugh could have made \\\"Y\\\" dollars at Infocision if his attendance had been reasonable, such evidence also would have been relevant to the mitigation issue. As we said in Mason County, \\\"the wrongfully discharged employee . must be prepared to demonstrate that he or she did not make a voluntary decision not to work[.]\\\" Mason County, 170 W.Va. at 638, 295 S.E.2d at 725-26. Clearly Wal-Mart's cross-examination of Mr. Rohrbaugh, concerning his work attendance at Infocision, was relevant to establishing his \\\"voluntary\\\" decision not to fully mitigate his damages by attending work regularly. Therefore, we affirm the trial court's ruling in this regard.\\nC. Bifurcation\\nMr. Rohrbaugh finally argues that the trial court committed error by sua sponte bifurcating the issue of the amount of punitive damages. During the proceedings underlying the instant appeal, the trial court determined that the jury would first decide liability on the underlying claims, compensatory damages, and whether punitive damages should be awarded. If each of these determinations were favorable to Mr. Rohrbaugh, the same jury would then hear evidence involving the amount of punitive damages to be awarded.\\nGenerally, trial courts are permitted broad discretion in managing their cases and deciding bifurcation matters. Rule 42(c) of the West Virginia Rules of Civil Procedure provides that \\\"[t]he court, in furtherance of convenience or to avoid prejudice . may order a separate trial of any . separate issue[.]\\\" (Emphasis added). That is not to say, however, that bifurcation is appropriate in every instance. Rather, a showing must be made that a separation of litigation is warranted under the circumstances of the particular case:\\nparties moving for separate trials of issues ., or the court if acting sua sponte, must provide sufficient justification to establish for review that informed discretion could have determined that the bifurcation would promote the recognized goals of judicial economy, convenience of the parties, and the avoidance of prejudice, the overriding concern being the provision of a fair and impartial trial to all litigants.\\nBennett v. Warner, 179 W.Va. 742, 748, 372 S.E.2d 920, 926 (1988) (emphasis added). Once a trial court has so ruled, this Court \\\"will not interfere with a bifurcation decision in the absence of an abuse of . discretion.\\\" Id. (citation omitted).\\nIn the instant case, it appears that the trial court decided to bifurcate the amount of punitive damages issue in order \\\"to prevent the jury from being influenced on the substantive claim by evidence of Wal-Mart's enormous wealth, which data would have been introduced in order to enable the jury to gauge the amount of punitive damages to be awarded.\\\" We believe that the trial court's basis for granting bifurcation was consistent with its discretion under Rule 42(c). Accordingly, we find no abuse of the trial court's discretion.\\nIV.\\nCONCLUSION\\nWe reverse the trial court's denial of a new trial on damages for the invasion of privacy claim. However, we affirm the denial of a new trial on the disability discrimination and workers' compensation discrimination claims.\\nAffirmed, in part; Reversed, in part; and Remanded.\\n. The complaint also named three management employees of Wal-Mart as defendants.\\n. We are compelled to comment at this point on the brief filed by Mr. Rohrbaugh. The appel lant's brief herein contains approximately 22 pages devoted solely to a \\\"Statement of Facts\\\". In view of the nature of the assignments of error in this case, the facts relevant to this appeal could have been iterated in far fewer pages as the vast majority of Mr. Rohrbaugh's \\\"Statement of Facts\\\" has no relevancy to the resolution of the assignments of error he has raised. We comment upon litis matter because Mr. Rohr-baugh sought, and obtained, permission from this Court to exceed the page limit requirement for briefs. Had Mr. Rohrbaugh written his brief succinctly, however, he would not have exceeded this limitation. \\\" 'We do not wish to be perceived as \\\"sticklers, precisians, nitpickers, or sadists. But in an era of swollen appellate dockets, courts are entitled to insist\\\" on diligence and good faith efforts from the practicing bar so that the appellate decisional process can proceed as it should.' \\\" Coleman v. Sopher, 194 W.Va. 90, 96, 459 S.E.2d 367, 373 (1995) (quoting Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1224 (7th Cir.1995) (emphasis in original)).\\n.Prior to his injury, Mr. Rohrbaugh seems to have had some work attendance problems. On June 8, 1999, Wal-Mart imposed a \\\"Decision Making Day\\\" on Rohrbaugh, which meant that his attendance had to improve or he could be terminated. The record suggests that Rohrbaugh continued to have attendance problems; yet, Wal-Mart did not discipline him therefor.\\n. The physical restrictions appear to have been imposed for a period of two weeks.\\n. The blood and alcohol testing occurred on February 17, 2000, and involved the use of a needle to extract blood from Mr. Rohrbaugh. He was also required to provide a urine sample.\\n. Mr. Rohrbaugh's brief contends that the \\\"last chance\\\" warning was inappropriate because he was not absent for the two-day period that prompted the warning.\\n. Mr. Rohrbaugh also brought a Wage Payment and Collection Act claim against Wal-Mart, which has since been settled by the parties.\\n. The trial judge bifurcated the issue of punitive damages in the case, ruling that the jury would only hear evidence of punitive damages if a verdict was returned in favor of Mr. Rohrbaugh.\\n. Wal-Mart contends that Mr. Rohrbaugh waived this issue because he failed to raise the matter with the trial court. We disagree. The issue was raised before the trial court and tentatively resolved as follows:\\nTHE COURT: Unless you have some other thoughts, I think what I'm going to do is accept this verdict, discharge the Jury, and then give you some time to look at this issue as far as whether or not this might constitute a basis for The Court to set aside the verdict and grant a new trial based on this one (1) issue. I don't know, I mean, tire cases seem to say that there has to be an award of compensatory damages and that was my recollection of the law.\\n. The jury was not required to set an amount for punitive damages because that issue was bifurcated.\\n. This Court held in Syllabus point 1 of Twigg v. Hercules Corp., 185 W.Va. 155, 406 S.E.2d 52 (1990), that \\\"[i]t is contrary to public policy in West Virginia for an employer to require an employee to submit to drug testing since such test portends an invasion of an individual's right to privacy.\\\" The decision in Twigg set out the exception to this public policy as follows:\\nDrug testing will not be found to be violative of public policy grounded in the potential intrusion of a person's right to privacy where it is conducted by an employer based upon reasonable good faith objective suspicion of an employee's drug usage or while an employee's job responsibility involves public safety or the safety of others.\\nSyl. pt. 2, Twigg, id. Wal-Mart has not made a cross-assignment of error challenging the jury determination that it violated Mr. Rohrbaugh's right to privacy in this regard. Therefore, we will not review the record to determine whether the evidence supported the jury's determination of liability.\\n. The defendant filed the appeal in Garnes.\\n. Our decision in Garnes is distinguishable from our ruling in LaPlaca v. Odeh, 189 W.Va. 99, 428 S.E.2d 322 (1993) (per curiam). In LaPlaca, the plaintiff brought a battery action against an employee and an employer. The claim against the employer was based on vicarious liability. Additionally, the defendant employee filed a counterclaim against the plaintiff. The jury then returned a verdict for the employee, awarding him damages for his counterclaim. The jury also returned a verdict imposing punitive damages on the employer, but did not award compensatory damages. This Court reversed the award of punitive damages against the employer, stating that \\\"[s]ince the jury found [the employee] blameless from a legal point of view, and even entitled to a recovery, even if [the employer] had ratified his actions, that would have given rise to no imputation of liability to [the employer].\\\" LaPlaca, 189 W.Va. at 101, 428 S.E.2d at 324. In other words, the jury did not find liability against the employee, therefore the employer could not be held vicariously liable. Consequently no damages, punitive or compensatory, could be imposed against the employer.\\n.Other issues were involved in Payne that are not relevant to this case.\\n.It is generally recognized that 'Ldjamages suffered as a result of tortious invasion of one's right to privacy depend primarily on which particular element of privacy has been invaded.\\\" Stuart M. Speiser, Charles F. Krause & Alfred W. Gans, The American Law-of Torts, \\u00a7 30:8, p. 871 (1991). We have indicated that \\\"there are four types of invasion of privacy, any one of which may be the basis of a cause of action.\\\" Greenfield v. Schmidt Baking Co., Inc., 199 W.Va. 447, 460, 485 S.E.2d 391, 404 (1997). In Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 320 S.E.2d 70 (1983), this Court adopted the four types of invasion of privacy enumerated in the Restatement (Second) of Torts \\u00a7 652A-652-E (1977), as follows:\\nAn \\\"invasion of privacy\\\" includes (1) an unreasonable intrusion upon the seclusion of another; (2) an appropriation of another's name or likeness; (3) unreasonable publicity given to another's private life; and (4) publicity that unreasonably places another in a false light before the public.\\nSyl. pt. 8, Crump, 173 W.Va. 699, 320 S.E.2d 70. In the instant proceeding, it is clear that Mr. Rohrbaugh's cause of action involves the \\\"intrusion\\\" element of the tort of invasion of privacy.\\n. See note 18, infra, for the meaning of special damages.\\n. The Restatement has not affirmatively precluded recovery of nominal damages. In commentary \\\"c\\\" of \\u00a7 652H of the Restatement it states \\\"[w]hether in the absence of proof of actual harm an action might be maintained for nominal damages remains uncertain.\\\" The commentary then references to \\u00a7 620 of the Restatement, involving defamation, which expressly allows nominal damages.\\n. \\\"Special damages\\\" refers to any actual monetary loss that may have been suffered.\\n. A plaintiff \\\"may be entitled to recover punitive damages if he shows that he suffered at least nominal damage[.]\\\" Surrency v. Harbison, 489 So.2d 1097, 1105 (Ala.1986). However, \\\"[a]s a matter of fundamental fairness, punitive damages should bear a reasonable relationship to compensatory damages.\\\" Garnes, 186 W.Va. at 668, 413 S.E.2dat 909.\\n. Mr. Rohrbaugh's driver's license was suspended for DUI.\\n. This issue is presented in the context of Mr. Rohrbaugh's request for a new trial on his claims for workers' compensation discrimination and disability discrimination.\\n. Wal-Mart sought bifurcation of both aspects of the punitive damages issue. The trial court, however, bifurcated only the issue of the amount of punitive damages.\\n. During our consideration of the case sub judice, we have had occasion to revisit our discussion of the law of bifurcation in certain of our previous decisions. In Roberts v. Consolidation Coal Co., 208 W.Va. 218, 238, 539 S.E.2d 478, 498 (2000), we construed Justice Miller's dissenting opinion in Mooney v. Eastern Associated Coal Corp., 174 W.Va. 350, 355, 326 S.E.2d 427, 432 (1985). We observed, in Roberts, that the Mooney dissent's suggestion to establish a procedure whereby the liability and damages portion of a deliberate intention action would be bifurcated from the workers' compensation offset determination \\\"has not, however, been adopted as a required method of procedure in deliberate intention cases.\\\" Roberts, 208 W.Va. at 238, 539 S.E.2d at 498 (emphasis added). An examination of the Mooney dissent, however, suggests that the majority of the Court joined in Justice Miller's separate opinion, therefore giving credence to the notion that such a procedure, had, effectively, been embraced by this Court, albeit not through an official pronouncement of law in the Opinion's Syllabus. See W. Va. Const, art. VIII, \\u00a7 4, in part (\\\"No decision rendered by the [Supreme] court [of appeals] shall be considered as binding authority upon any court, except in the particular case decided, unless a majority of the justices of the court concur in such decision.\\\"). Compare Syl. pts. 1-3, Mooney, 174 W.Va. 350, 326 S.E.2d 427 (failing to establish procedure for bifurcating workers' compensation offset in deliberate intention actions) with Mooney, 174 W.Va. at 358, 326 S.E.2d at 435 (Miller, J., dissenting) (indicating that Chief Justice Neely joins in Justice Miller's dissent, and that Justices McGraw and McHugh concur in that portion thereof discussing the bifurcation issue). Nevertheless, our observation in Roberts was a technically accurate statement of the law in that, as of the writing of Roberts, there had been no formal recognition of such a standard in a Syllabus point by the Court. See, e.g., W. Va. Const. art. VIII, \\u00a7 4, in part (directing that \\\"it shall be the duty of the [supreme] court [of appeals] to prepare a syllabus of the points adjudicated in each case in which an opinion is written and in which a majority of the justices thereof concurred, which shall be prefixed to the published report of the case\\\"); Syl. pt. 2, Walker v. Doe, 210 W.Va. 490, 558 S.E.2d 290 (2001) (\\\"This Court will use signed opinions when new points of law are announced and those points will be articulated through syllabus points as required by our state constitution.\\\" (emphasis added)). Beyond this clarification of our prior discussion, however, we need not venture as the aforementioned point of law is not determinative of the resolution of the instant appeal.\"}"
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+"{\"id\": \"9370375\", \"name\": \"The BOARD OF EDUCATION OF THE COUNTY OF MARSHALL, Petitioner Below, Appellee v. David N. GAUDINO, Respondent Below, Appellant, William Stoehr, Intervenor Below, Appellee\", \"name_abbreviation\": \"Board of Education v. Gaudino\", \"decision_date\": \"2002-11-27\", \"docket_number\": \"No. 30363\", \"first_page\": \"640\", \"last_page\": \"647\", \"citations\": \"212 W. Va. 640\", \"volume\": \"212\", \"reporter\": \"West Virginia Supreme Court\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"West Virginia\", \"last_updated\": \"2021-08-10T20:06:30.689801+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The BOARD OF EDUCATION OF THE COUNTY OF MARSHALL, Petitioner Below, Appellee v. David N. GAUDINO, Respondent Below, Appellant, William Stoehr, Intervenor Below, Appellee\", \"head_matter\": \"575 S.E.2d 250\\nThe BOARD OF EDUCATION OF THE COUNTY OF MARSHALL, Petitioner Below, Appellee v. David N. GAUDINO, Respondent Below, Appellant, William Stoehr, Intervenor Below, Appellee\\nNo. 30363.\\nSupreme Court of Appeals of West Virginia.\\nSubmitted Nov. 6, 2002.\\nDecided Nov. 27, 2002.\\nDissenting Opinion of Justice Starcher Dec. 10, 2002.\\nGregory A. Gaudino, Esq., Petroplus & Gaudino, Wheeling, West Virginia, Attorney for Appellant David N. Gaudino.\\nGregory W. Bailey, Esq., Howard E. Seufer, Jr., Esq., Bowles Rice McDavid Graff & Love, Charleston, West Virginia, Attorneys for Appellee, The Board of Education of the County of Marshall.\\nWilliam B. McGinley, Esq., West Virginia Education Association, Charleston, West Virginia, Attorney for Intervenor and Appellee William H. Stoehr.\", \"word_count\": \"3231\", \"char_count\": \"21041\", \"text\": \"PER CURIAM:\\nThis ease is before this Court upon the appeal of the appellant, David N. Gaudino, from the final order of the Circuit Court of Kanawha County entered on July 12, 2001. Pursuant to that order, the Circuit Court reversed a Level IV decision of the West Virginia Education and State Employees Grievance Board and upheld the determination of the appellee, The Board of Education of the County of Marshall, that William H. Stoehr, rather than the appellant, is entitled to the position of guidance counselor at John Marshall High School in Marshall County.\\nThis Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons stated below, this Court is of the opinion that the Circuit Court and the Board of Education misapplied the statutory criteria set forth in W.Va.Code, 18A-4-7a (1993), applicable to the filling of the guidance counselor position. Therefore, the final order of the Circuit Court is reversed, and this case is remanded to that Court for the entry of an order directing that appellant Gaudino be instated as guidance counselor at John Marshall High School with back pay and other relevant benefits.\\nI.\\nFACTUAL BACKGROUND\\nThe facts are largely undisputed. In November 1999, The Board of Education of the County of Marshall posted a notice of vacancy in the position of guidance counselor at John Marshall High School. As stated in the notice, the minimum qualifications for the job included a master's degree and a West Virginia counselor certification \\\"endorsed to serve as a counselor at grade levels commensurate with assignment.\\\" Among the applicants for the position were appellant Gaudino and William H. Stoehr. The appellant had been employed by the Board for 23 years as a classroom teacher. Stoehr had been employed by the Board for 14 years which included 10 years as an elementary school guidance counselor and 4 years as a classroom teacher. Both had received satisfactory job evaluations.\\nAppellant Gaudino and Stoehr each possessed a master's degree in counseling. The appellant, in addition, had a doctorate degree in education from West Virginia University with 12 credit hours in counseling at that level. Although neither the appellant nor Stoehr had ever been employed as a high school guidance counselor, both held a West Virginia counselor certification for grade levels 5 through 12. Stoehr's certification included the additional grade levels K through 8. Both applicants asserted that, through their respective careers as employees of the Marshall County Board, they gained experience relevant to counseling at the high school level.\\nAs foretold in the notice, the Board utilized the criteria set forth in W.Va.Code, 18A-4-7a (1993), in selecting the successful applicant for the position of guidance counselor at John Marshall High School. The criteria applied to the filling of classroom teaching positions which, by definition, included \\\"counseling\\\" positions. W.Va.Code, 18A-1-1 (1997). As the parties agree, the criteria included:\\nAppropriate certification and / or licen-sure; total amount of teaching experience; the existence of teaching experience in the required certification area; degree level in the required certification area; specialized training directly related to the performance of the job as stated in the job description; receiving an overall rating of satisfactory in evaluations over the previous two years; and seniority.\\nPursuant to W.Va.Code, 18A-4-7a (1993), each criterion is entitled to equal weight in the Board's selection.\\nThe Marshall County Board determined that appellant Gaudino and Stoehr were tied as to the criteria relating to certification, degree level and evaluations. Specifically, with regard to degree level, the Board concluded that the appellant's doctorate degree in education and 12 credit hours in counseling would not be taken into account because W.Va.Code, 18A-4-7a (1993), provided that only the \\\"degree level in the required certification area\\\" would be considered. The appellant's highest degree level in the certification area in question, as was Stoehr's, was a master's degree in counseling. Therefore, the two applicants were tied as to that criterion. In addition, the Board determined that the criterion relating to \\\"specialized training\\\" did not apply since the notice of November 1999 failed to describe any such training specific to the guidance counselor position.\\nConsequently, the selection by the Marshall County Board turned upon the remaining three criteria: total amount of teaching experience, the existence of teaching experience in the required certification area and seniority. As the parties do not dispute, appellant Gaudino prevailed as to total amount of teaching experience in view of his 23 years as a classroom teacher employed by the Board. On the other hand, the Board of Education determined that, because of his employment as an elementary school guidance counselor, William H. Stoehr prevailed with regard to teaching experience in the required certification area. The criterion concerning seniority, therefore, became the deciding factor.\\nIn selecting Stoehr for the guidance counselor position at John Marshall High School, the Marshall County Board determined that, as between the appellant and Stoehr, seniority, as a criterion under W.Va.Code, 18A-4-7a (1993), concerned employment in counseling, rather than overall employment by the Board. Thus, Stoehr prevailed because he had been an elementary school counselor in Marshall County schools, whereas the appellant had been employed by the Board as a classroom teacher.\\nStoehr was officially selected by the Board on December 14, 1999, and began serving as guidance counselor at John Marshall High School during the 1999-2000 academic year.\\nII.\\nPROCEDURAL BACKGROUND\\nIn January 2000, appellant Gaudino filed a grievance pursuant to W.Va.Code, 18-29-1 (1992), et seq., concerning his non-selection for the guidance counselor position. Eviden-tiary hearings were conducted, and the grievance ultimately came before a Level IV hearing examiner of the West Virginia Education and State Employees Grievance Board for decision. On July 26, 2000, the hearing examiner granted the appellant's grievance and directed the Marshall County Board to instate the appellant as guidance counselor at John Marshall High School with back pay and other relevant benefits. Stoehr, thus, lost the position, and the appellant began working as a guidance counselor during the 2000-2001 academic year.\\nThe deciding factor in the Level IV decision, as was the case in the decision of the Marshall County Board, was seniority. Contrary to the determination of the Board, however, the hearing examiner was of the opinion that, under W.Va.Code, 18A-4-7a (1993), seniority, in the context of this case, related to overall employment by the Board, rather than to just employment in counseling. Therefore, in view of appellant Gaudino's 23 years with the Board, compared to Stoehr's 14 years, the appellant prevailed upon the criterion of seniority. Combining seniority with the appellant's \\\"total amount of teaching experience\\\" placed him ahead of Stoehr with regard to the criteria set forth in W.Va.Code, 18A-4-7a (1993).\\nUpon appeal, the Circuit Court of Kana-wha County, pursuant to a final order entered on July 12, 2001, reversed and restored Stoehr to the position of guidance counselor at John Marshall High School. The ease again turned upon the issue of seniority. In ruling in favor of the Marshall County Board, the Circuit Court noted that W .Va,Code, 18A-4-7a (1993), contains language, in addition to the criteria set forth above, indicating that guidance counselors employed by a county board of education acquire seniority in a manner separate from the seniority of classroom teachers. As W.Va.Code, 18A-4-7a (1993), states:\\nGuidance counselors and all other professional employees, as defined in section one, article one of this chapter, except classroom teachers, shall gain seniority in them nonteaehing area of professional employment on the basis of the length of time the employee has been employed by the county board of education in that ai'ea [.]\\nAccording to the Circuit Court, that language modifies the criterion of \\\"seniority\\\" set forth in W.Va.Code, 18A-4-7a (1993), to the effect that guidance counselors earn a type of special seniority which should be considered \\\"in the context of evaluating the qualifications of candidates for guidance counselor positions.\\\" Thus, Stoehr would have more seniority than appellant Gaudino with respect to the position at John Marshall High School since Stoehr had been employed by the Board as an elementary school guidance counselor, and the appellant had only been a classroom teacher.\\nAppellant Gaudino appeals to this Com\\u00ed; from the July 12, 2001, ruling of the Circuit Court.\\nIII.\\nSTANDARD OF REVIEW\\nAs stated above, appellant Gaudino initiated grievance proceedings pursuant to W.Va.Code, 18-29-1 (1992), et seq. The proceedings resulted in a Level IV decision. Pursuant to W.Va.Code, 18-29-7 (1985), circuit court review of such a decision concerns whether the decision:\\n(1) was contrary to law or lawfully adopted rule, regulation or written policy of the chief administrator or governing board, (2) exceeded the hearing examiner's statutory authority, (3) was the result of fraud or deceit, (4) was clearly wrong in view of the reliable, probative and substantial evidence on the whole record or (5) was arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.\\nSee, Parker v. Summers County Board of Education, 185 W.Va. 313, 316, 406 S.E.2d 744, 747 (1991), stating that circuit court review of a hearing examiner's decision in a grievance case is set forth in W.Va.Code, 18-29-7 (1985). The decision of the circuit court is, in turn, reviewed by this Court under the same standard as that by which the circuit court reviewed the decision of the hearing examiner. Baker v. Board of Education, County of Hancock, 207 W.Va. 513, 516, 534 S.E.2d 378, 381 (2000); Martin v. Randolph County Board of Education, 195 W.Va. 297, 304, 465 S.E.2d 399, 406 (1995).\\nIn syllabus point 1 of Cahill v. Mercer County Board of Education, 208 W.Va. 177, 539 S.E.2d 437 (2000), this Court held:\\nGrievance rulings involve a combination of both deferential and plenary review. Since a reviewing court is obligated to give deference to factual findings rendered by an administrative law judge, a circuit court is not permitted to substitute its judgment for that of the hearing examiner with regard to factual determinations. Credibility determinations made by an administrative law judge are similarly entitled to deference. Plenary review is conducted as to the conclusions of law and application of law to the facts, which are reviewed de novo.\\nSyl. pt. 2, Crock v. Harrison County Board of Education, 211 W.Va. 40, 560 S.E.2d 515 (2002).\\nAs stated above, the facts in this case are largely undisputed. Therefore, the review is de uovo. In that regard, this Court specifically held in syllabus point 1 of Cowen v. Harrison County Board of Education, 195 W.Va. 377, 465 S.E.2d 648 (1995), that \\\"[n]o deference is given to conclusions of law of an administrative law judge or a circuit court, so that the standard of judicial review by this Court is de novo.\\\" See also, Hazelwood v. Mercer County Board, of Education, 200 W.Va. 205, 207, 488 S.E.2d 480, 482 (1997), and Bolyard v. Kanawha County Board of Education, 194 W.Va. 134, 136, 459 S.E.2d 411, 413 (1995).\\nIV.\\nDISCUSSION\\nUnfortunately, the provisions of W.Va. Code, 18A-4-7a (1993), and related statutes, concerning the manner by which seniority is acquired by guidance counselors and classroom teachers, are inartfully drafted and confusing. Under W.Va.Code, 18A-4-7a (1993), guidance counselors are distinguished from classroom teachers with regard to the acquisition of seniority; yet guidance counselors and classroom teachers are defined as virtually synonymous in W.Va.Code, 18A-1-1 (1997). Pursuant to W.Va.Code, 18A-1-1 (1997), a classroom teacher is a professional educator who has met the certification or licensing requirements of this State and who has a \\\"direct instructional or counseling relationship with pupils, spending the majority of his time in this capacity.\\\" Guidance counselors are not separately defined.\\nIn fact, the statute under consideration, W.Va.Code, 18A-4-7a (1993), which attempts to distinguish guidance counselors from classroom teachers with regal'd to the acquisition of seniority, nevertheless expressly refers to the above statutory definition. As W.Va.Code, 18A-4-7a (1993), states:\\nGuidance counselors and all other professional employees, as defined in section one, article one of this chapter, except classroom teachers, shall gain seniority in their nonteaching area of professional employment on the basis of the length of time the employee has been employed by the county board of education in that area [.] (emphasis added)\\nIn view of that apparent inconsistency concerning seniority, the meaning of the criterion \\\"teaching experience in the required certification area,\\\" is also brought into question. An interpretation of \\\"teaching\\\" experience as including \\\"counseling,\\\" as those terms are defined in W.Va.Code, 18A-1-1 (1997), would arguably favor Stoehr who had counseling, i.e., \\\"teaching,\\\" experience at the elementary school level. However, if counseling is determined to be a \\\"nonteaching area of professional employment\\\" as mentioned in W.Va. Code, 18A-ri-7a (1993), then Stoehr's \\\"teaching experience in the required certification area,\\\" as a criterion under W.Va.Code, 18A-4-7a (1993), becomes questionable.\\nAlthough W.Va.Code, 18A-4-7a (1993), is in need of clarification by the West Virginia Legislature, this Court must consider that statute as written for purposes of this appeal. In syllabus point 3 of Meadows v. Wal-Mart Stores, 207 W.Va. 203, 530 S.E.2d 676 (1999), this Court recognized: \\\"A cardinal rule of statutory construction is that significance and effect must, if possible, be given to every section, clause, word or part of the statute.\\\" See also, Mitchell v. City of Wheeling, 202 W.Va. 85, 88, 502 S.E.2d 182, 185 (1998); Wilson v. Hix, 136 W.Va. 59, 68, 65 S.E.2d 717, 723 (1951).\\nHere, the Marshall County Board determined that Stoehr prevailed under the statutory criteria concerning the existence of teaching experience in the required certification area and seniority. However, Stoehr had never been a guidance counselor at the high school level, notwithstanding the fact that both he and appellant Gaudino held a West Virginia counselor certification for grade levels 5 through 12 and even though both he and appellant Gaudino asserted that, through their respective careers as employees of the Marshall County Board, they gained experience relevant to counseling at the high school level.\\nIn that regard, Stoehr's employment as a counselor at the elementary school level is somewhat deprived of significance with respect to the position at John Marshall High School by the fact that his counseling certificate, on its face, provides that he is certified at grade levels K through 8, and separately for grade levels 5 through 12. That grade level distinction was mirrored in the Board of Education's posted notice of November 1999 which stated that one of the minimum qualifications for the guidance counselor position at John Marshall High School was a West Virginia certification \\\"endorsed to serve as a .counselor at grade levels commensurate with assignment.\\\" That such a distinction between grade level certifications is significant, rather than artificial, was evidenced, in this case, by the testimony of Dr. Luise Savage before the Level IV hearing examiner. Dr. Savage, who held a doctorate in special education and who had been a high school guidance counselor, indicated that, although there are some common areas, there is a recognizable difference between elementary school guidance counselors and high school guidance counselors with regard to services provided to students. See, Karr v. Board of Education of Jackson County, 203 W.Va. 100, 506 S.E.2d 355 (1998), wherein this Court acknowledged grade level certification by noting that both of the parties contesting the filling of a teaching position had the certification to teach \\\"at the grade levels in issue.\\\" 203 W.Va. at 102, 506 S.E.2d at 357.\\nAccordingly, this Court is of the opinion that, although Stoehr acquired both experience and seniority in guidance counseling at the elementary school level, neither of those matters is dispositive of the statutory criteria \\\"teaching experience in the required certification area\\\" and \\\"seniority\\\" concerning the filling of the guidance counselor position at John Marshall High School. Nor would appellant Gaudino, whose 23 years with the Marshall County Board were devoted to classroom teaching, prevail upon those two criteria.\\nThis conclusion, that neither applicant prevails upon those two criteria, is not based entirely upon the fact that guidance counseling at the elementary school and high school levels are expressly differentiated upon the face of Stoehr's certification, although that fact is an important consideration. The result herein is also mandated by a construction of W.Va.Code, 18A-4-7a (1993), which gives the provisions of that statute the fullest effect. Syl. pt. 3, Meadows v. Wal-Mart Stores, supra.\\nSpecifically, the definitions found in W.Va. Code, 18A-1-1 (1997), notwithstanding, W.Va.Code, 18A-4-7a (1993), separates guidance counselors from classroom teachers and provides guidance counselors with seniority \\\"in them nonteaching area\\\" for the length of time they have been \\\"employed\\\" in that area. As indicated above, guidance counseling experience and seniority acquired by working at a particular certified grade level, does not infuse that person with experience and seniority when applying for a guidance counsel- or position at a separately certified grade level. In other words, Stoehr acquired experience and seniority pursuant to W.Va.Code, 18A-4-7a (1993), as an elementary school guidance counselor but did not thereby acquire experience and seniority in the area of high school guidance counseling as to which he was never employed.\\nThis Court notes, however, that this reasoning would not apply, in turn, to classroom teachers. Under W.Va.Code, 18A-4-7a (1993), classroom teachers are granted seniority based upon the length of time they have been employed as professional educators, and their seniority \\\"shall be granted in all areas that the employee is certified [.]\\\" Thus, seniority is more broadly granted in the case of classroom teachers under W.Va.Code, 18A-4-7a (1993), than in the case of guidance counselors.\\nConsequently, appellant Gaudino and Stoehr are tied upon six of the seven criteria listed in W.Va.Code, 18A-4-7a (1993): appropriate certification; the existence of teaching experience in the required certification area; degree level; specialized training; satisfactory evaluations; and seniority. However, inasmuch as appellant Gaudino unquestionably prevails upon the remaining criterion, \\\"total amount of teaching experience,\\\" he is entitled to the position. Hopefully, the West Virginia Legislature will revisit this area of the law and clarify the relevant statutory provisions.\\nV.\\nCONCLUSION\\nFor the reasons stated above, the final order of the Circuit Court of Kanawha County entered on July 12, 2001, is reversed, and this case is remanded to that Court for the entry of an order directing that the appellant, David N. Gaudino, be instated as guidance counselor at John Marshall High School with back pay and other relevant benefits.\\nReversed and remanded.\"}"
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