Upload 100 files

w_va/10234542.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/11076780.json

@@ -0,0 +1 @@
+"{\"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\"}"

w_va/11077712.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/11114951.json

@@ -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.\"}"

w_va/11506456.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/11626681.json

@@ -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.\"}"

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.\"}"

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.\"}"

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.\"}"

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.\"}"

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.]\\\").\"}"

w_va/2384103.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/3840235.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/3841024.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/3843075.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/3848087.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/7344936.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8160135.json

@@ -0,0 +1 @@
+"{\"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))).\"}"

w_va/8338759.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8367559.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8368426.json

@@ -0,0 +1 @@
+"{\"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).\"}"

w_va/8368509.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8387638.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8575100.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8576224.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8576340.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8577035.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8577399.json

@@ -0,0 +1 @@
+"{\"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; .\"}"

w_va/8579274.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8579310.json

@@ -0,0 +1 @@
+"{\"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.\\\"\"}"

w_va/8580508.json

@@ -0,0 +1 @@
+"{\"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).\"}"

w_va/8580810.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8580974.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8581636.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8581752.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8581882.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8582476.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8582559.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8582791.json

@@ -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.\"}"

w_va/8582841.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8582925.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8583667.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8583703.json

@@ -0,0 +1 @@
+"{\"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,\"}"

w_va/8584762.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8629184.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8630599.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8630635.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8630881.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8631424.json

@@ -0,0 +1 @@
+"{\"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.\"}"

w_va/8631540.json

@@ -0,0 +1 @@
+"{\"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.\"}"