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+"{\"id\": \"12652193\", \"name\": \"AMFM LLC; Commercial Holdings, LLC ; Integrated Commercial Enterprises, Inc; Manzanita Holdings, LLC; Lifetree, LLC; Wineberry, LLC ; Hillcrest Health Care Center, LLC, d/b/a Hillcrest Health Care Center; Tammy Fortney; and Matthew Poorman, Petitioners v. Kimberly SHANKLIN, ON BEHALF OF the ESTATE OF Lena NELSON, Respondent\", \"name_abbreviation\": \"AMFM LLC v. Shanklin ex rel. Estate of Nelson\", \"decision_date\": \"2018-05-30\", \"docket_number\": \"No. 17-0096\", \"first_page\": \"882\", \"last_page\": \"895\", \"citations\": \"818 S.E.2d 882\", \"volume\": \"818\", \"reporter\": \"South Eastern Reporter 2d\", \"court\": \"Supreme Court of Appeals of West Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-27T21:05:58.740083+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"AMFM LLC; Commercial Holdings, LLC ; Integrated Commercial Enterprises, Inc; Manzanita Holdings, LLC; Lifetree, LLC; Wineberry, LLC ; Hillcrest Health Care Center, LLC, d/b/a Hillcrest Health Care Center; Tammy Fortney; and Matthew Poorman, Petitioners\\nv.\\nKimberly SHANKLIN, ON BEHALF OF the ESTATE OF Lena NELSON, Respondent\", \"head_matter\": \"AMFM LLC; Commercial Holdings, LLC ; Integrated Commercial Enterprises, Inc; Manzanita Holdings, LLC; Lifetree, LLC; Wineberry, LLC ; Hillcrest Health Care Center, LLC, d/b/a Hillcrest Health Care Center; Tammy Fortney; and Matthew Poorman, Petitioners\\nv.\\nKimberly SHANKLIN, ON BEHALF OF the ESTATE OF Lena NELSON, Respondent\\nNo. 17-0096\\nSupreme Court of Appeals of West Virginia.\\nSubmitted: January 10, 2018\\nFiled: May 30, 2018\\nMark A. Robinson, Esq., Ryan A. Brown, Esq., Flaherty Sensabaugh Bonasso, PLLC, Charleston, West Virginia, Counsel for Petitioners\\nJames B. McHugh, Esq., Michael J. Fuller, Jr., Esq., D. Bryant Chaffin, Esq., A. Lance Reins, Esq., Kendra R. Fokakis, Esq., McHugh Fuller Law Group PLLC, Hattiesburg, Mississippi, Counsel for Respondent\", \"word_count\": \"8114\", \"char_count\": \"50873\", \"text\": \"Justice Ketchum :\\nIn this case we examine whether a durable power of attorney (\\\"DPOA\\\") provided an adult daughter with the authority to enter into an arbitration agreement with a nursing home on her mother's behalf. After review, we conclude the DPOA granted such authority to the adult daughter. We therefore reverse the circuit court's December 29, 2016, order, and remand this matter to the circuit court for entry of an order granting the petitioners' (\\\"Hillcrest Nursing Home\\\" or \\\"nursing home\\\") motion to dismiss and to compel arbitration.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nIn 2010, Lena Nelson (\\\"Mother Nelson\\\") executed a DPOA that named her son, Stephen Nelson, as her attorney-in-fact:\\nKNOW ALL MEN BY THESE PRESENTS: That I, LENA NELSON, a widow of Darius Court on the Sycamore Branch Road, Lake, Logan County, West Virginia, have made, constituted, and appointed, and by these presents do hereby make, constitute and appoint my son, STEPHEN NELSON, of Lake, Logan County, West Virginia, my true and lawful attorney, for me and in my name, place and stead[.]\\nThe DPOA also stated: \\\"If, for any reason , STEPHEN NELSON cannot or will not serve as such, then I do hereby make, constitute, and appoint my daughter, KIMBERLY SHANKLIN, of Charleston, Kanawha County, West Virginia, my true and lawful attorney, for me and in my name, place and stead with all of the aforesaid powers.\\\" (Emphasis added).\\nOn February 15, 2013, Mother Nelson was transferred from Charleston Area Medical Center (\\\"CAMC\\\") to Hillcrest Nursing Home. It is undisputed that Mother Nelson was suffering from dementia and was unable to handle her own affairs when she entered the nursing home. Mother Nelson's daughter, Plaintiff Kimberly Shanklin (\\\"Kimberly\\\"), accompanied Mother Nelson to Hillcrest Nursing Home and signed all of the admission documents, including an arbitration agreement. Richard Osburn, the nursing home's admissions director, was also present during the admission process. Another daughter of Mother Nelson's, Regina Akers (\\\"Daughter Regina\\\"), met Mother Nelson and Kimberly at the nursing home on the day of Mother Nelson's admission. According to Kimberly, Daughter Regina worked at Hillcrest Nursing Home. Mother Nelson's son, Stephen Nelson, was not present at the nursing home during the admission process.\\nMother Nelson was a resident of the nursing home from February 2013 through March 2016. Approximately one month after leaving the nursing home, Mother Nelson died. In July 2016, Kimberly, on behalf of the estate of Mother Nelson, filed the instant lawsuit against Hillcrest Nursing Home. The complaint alleged numerous causes of action arising from the care and treatment Mother Nelson received during her residency at the nursing home. In response, the nursing home filed a motion to dismiss and to compel arbitration. Thereafter, the parties engaged in limited discovery regarding the formation of the arbitration agreement.\\nAs part of this limited discovery, Kimberly was deposed. Kimberly testified that she had extensive experience in the medical field-she has worked as a paramedic supervisor for five and a half years. Kimberly explained that her duties include supervising fourteen units and that, \\\"I run calls, make decisions, anything they need.\\\" Prior to her position as a paramedic supervisor, Kimberly was an EMT for approximately twenty years.\\nRegarding Mother Nelson's DPOA, Kimberly testified that she had exercised a number of rights granted to her under the DPOA prior to Mother Nelson's admission to the nursing home. In fact, Kimberly began exercising these rights in 2011, approximately two years before Mother Nelson's admission to the nursing home. These rights included endorsing checks and managing bank accounts for her mother. Kimberly also arranged and consented to medical treatment for her mother, including signing forms related to medical care and treatment her mother received at two different hospitals, Boone Memorial Hospital and CAMC.\\nPrior to Mother Nelson's admission to the nursing home, Kimberly completed and signed a \\\"Pre-Admission Screening\\\" form. The West Virginia Department of Health and Human Resources (\\\"DHHR\\\") requires this form to be completed prior to placing a person in a skilled nursing facility. In paragraph 18 of the \\\"Pre-Admission Screening\\\" form, \\\"Kim Shanklin\\\" authorized the release of her mother's medical information to the DHHR. Under the heading \\\"Relationship,\\\" Kimberly is listed as \\\"DPOA.\\\" This portion of the form is dated \\\"2/05/2013,\\\" ten days prior to Mother Nelson's admission to the nursing home.\\nKimberly testified that her mother was transferred directly from CAMC to the nursing home on February 15, 2013. She explained that the family chose Hillcrest Nursing Home over other potential facilities because Hillcrest \\\"was closer to home.\\\" During the admission process, Kimberly signed the arbitration agreement and all of the other admission forms on her mother's behalf. Kimberly testified that the admissions director, Richard Osburn, told her to write \\\"DPOA\\\" next to her signature on the admission forms. When asked whether she told anyone at the nursing home that she was her mother's DPOA, Kimberly stated, \\\"No, I mean, I would assume they had a copy of the Durable Power of Attorney paper.\\\"\\nRichard Osburn was also deposed as part of this limited discovery. He stated that when admitting a resident who was not competent, \\\"the first thing you would have to do, of course, would be to verify that who, whoever is signing on behalf of that patient has the legal right to do so.... And, of course, that person or persons had either presented Medical Power of Attorney papers, POA papers, Durable Power of Attorney papers, to either our social worker or someone in the facility.\\\" Mr. Osburn testified that Kimberly accompanied Mother Nelson to the facility and signed the admission forms on her mother's behalf, including the arbitration agreement. Mr. Osburn testified that Kimberly \\\"presented herself and the papers as a Durable Power of Attorney, not-I'm quite certain that that's what it was.\\\" Additionally, Mr. Osburn testified that Stephen Nelson was not present when Mother Nelson was admitted to the nursing home.\\nThe arbitration agreement that Kimberly signed included the following paragraph:\\nThe parties have reviewed the Arbitration Agreement, and have had an opportunity to ask questions of the Facility about this Agreement. The Resident further acknowledges that he/she fully understands the content of this Agreement and the limitations on the right to seek the resolution of any dispute in court. The Resident affirmatively states that he/she is the Resident or a person legally authorized by law or by the Resident to execute this Agreement and accept its terms.\\n(Emphasis added). Kimberly signed her initials (\\\"KDS\\\") in a line directly under this paragraph in the arbitration agreement.\\nAnother nursing home admission document produced during this limited discovery is entitled \\\"Admission Record Hillcrest Health Care Center.\\\" This document is dated February 15, 2013, the date of Mother Nelson's admission to the nursing home. Under a section labelled \\\"Contacts,\\\" the name \\\"Kim Shanklin\\\" is listed with the following description: \\\"Emergency Contact # 1, Responsible Party (Financial), Successor POA-Care.\\\" Also listed in the \\\"Contacts\\\" section are two of Mother Nelson's other daughters, \\\"Regina Akers\\\" and \\\"Judy.\\\" However, neither of these daughters were listed as \\\"responsible parties\\\" or as \\\"POA-Care.\\\" Mother Nelson's son, Stephen Nelson, is not listed as a contact on this document.\\nThis limited discovery also revealed that Kimberly continued to exercise the rights granted to her under the DPOA, including making medical decisions on her mother's behalf, throughout Mother Nelson's residency at the nursing home. Records from the nursing home demonstrate that Kimberly took part in a number of \\\"multidisciplinary care conferences\\\" and was regularly in contact with the nursing home regarding all aspects of her mother's care. Kimberly was listed on these various medical records from the nursing home as the \\\"responsible party.\\\"\\nAdditionally, Kimberly continued to serve as Mother Nelson's DPOA after Mother Nelson left Hillcrest. Kimberly is listed as Mother Nelson's \\\"MPOA\\\" in a medical record from CAMC dated December 1, 2015, which provides, \\\"Pt.'s [Mother Nelson's] daughter Kim is MPOA and states that she does not wish for PT. to return to Hillcrest and reports that she would like her mother to be moved to another facility.\\\" Further, after Mother Nelson left Hillcrest Nursing Home, she entered another facility, Montgomery General Elderly Care. Kimberly is identified as Mother Nelson's \\\"POA-Health Care\\\", \\\"POA-Financial,\\\" \\\"Agent,\\\" and \\\"Emergency Contact\\\" in documents from Montgomery General Elderly Care.\\nOne final note on the limited discovery period-Kimberly obtained an affidavit from Stephen Nelson that provided he was never contacted by Hillcrest Nursing Home about his mother's admission or about the arbitration agreement. In the affidavit, Stephen Nelson states \\\"I was at all times material hereto willing and able to perform my duties as Durable Power of Attorney for my mother.\\\"\\nAt the conclusion of this limited discovery period, Kimberly argued that the arbitration agreement was not enforceable because she did not have the actual authority to enter into an arbitration agreement on Mother Nelson's behalf. In essence, Kimberly argued that she was the \\\"alternate\\\" DPOA and, as such, did not have the authority to bind Mother Nelson to the arbitration agreement. The circuit court agreed with Kimberly and entered an order denying the motion to dismiss and to compel arbitration. The circuit court determined that the nursing home had the burden of demonstrating that Stephen Nelson \\\"could not or would not\\\" serve as the DPOA before it could rely on Kimberly's authority as the \\\"alternate\\\" DPOA. The circuit court's order explains:\\nThe Court . focuses on whether the Defendants have met their burden of demonstrating that [Kimberly] Shanklin had the requisite authority to waive [Mother] Nelson's right to a jury trial and enter into the arbitration agreement. In this regard, based on the DPOA executed by [Mother] Nelson, the Defendants would need to show that Stephen Nelson \\\"cannot or will not\\\" serve as her DPOA at the time of admission.\\nThe Court looks to see what, if any, evidence has been presented that Stephen Nelson \\\"cannot or will not\\\" serve as his mother's DPOA. This is where the Court finds that the Defendants have not met their burden. There is no evidence that anyone on behalf of the Defendants inquired about Stephen Nelson or whether he was able and available to act on his mother's behalf on February 15, 2013.\\nThe only evidence in the record is testimony from [Kimberly] Shanklin that her brother lived locally and was available and the affidavit of Stephen Nelson that no one attempted to contact him at the time of his mother's admission.\\nThe nursing home now appeals the circuit court's order denying its motion to dismiss and to compel arbitration.\\nII. STANDARD OF REVIEW\\nThe nursing home challenges the circuit court's denial of their motion to dismiss and to compel arbitration. In Syllabus Point 1 of Credit Acceptance Corporation v. Front , 231 W.Va. 518, 745 S.E.2d 556 (2013), we held that \\\"[a]n order denying a motion to compel arbitration is an interlocutory ruling which is subject to immediate appeal under the collateral order doctrine.\\\" Further, \\\"[w]hen an appeal from an order denying a motion to dismiss and to compel arbitration is properly before this Court, our review is de novo .\\\" Syllabus Point 1, W.Va. CVS Pharmacy, LLC v. McDowell Pharmacy, Inc. , 238 W.Va. 465, 796 S.E.2d 574 (2017).\\nIII. ANALYSIS\\nThe issue in this appeal-whether the circuit court erred by denying the motion to dismiss and to compel arbitration -requires us to examine our DPOA law. In general, \\\"[a] 'power of attorney' is 'an instrument granting someone authority to act as agent or attorney-in-fact for the grantor.' \\\" In re Richard P. , 227 W.Va. 285, 293, 708 S.E.2d 479, 487 (2010) (quoting Black's Law Dictionary 1290 (9th ed. 2009) ).See also , Vance v. Vance , 192 W.Va. 121, 123, 451 S.E.2d 422, 424 (1994) (\\\"[A] power of attorney creates an agency relationship, and this establishes a fiduciary relationship between the principal, or the party who granted the power, and the agent, or the party who receives the power.\\\"); Milner v. Milner , 183 W.Va. 273, 277, 395 S.E.2d 517, 521 (1990) (\\\"[W]hen a competent adult grants a power of attorney to another, an agency relationship between the two is created, and the principal and agent are ultimately responsible for the actions arising out of the power of attorney and not some third party who is without knowledge of any wrong doing.\\\"); Thompson v. Stuckey , 171 W.Va. 483, 487, 300 S.E.2d 295, 299 (1983) (\\\"A principal is bound by acts of an agent if those acts are . within the authority the principal has actually given his agent[.]\\\"); Kanawha Valley Bank v. Friend , 162 W.Va. 925, 928, 253 S.E.2d 528, 530 (1979) (\\\"A power of attorney creates an agency and this establishes the fiduciary relationship which exists between a principal and agent.\\\").\\nA durable power of attorney is a power of attorney that does not terminate by the principal's incapacity. \\\"The durable power of attorney is a deceptively simple document that allows one person to handle the affairs of an incapacitated person without court supervision. It is merely an agency relationship, established by a written document, that continues during the principal's incapacity.\\\" Karen E. Boxx, The Durable Power of Attorney's Place in the Family of Fiduciary Relationships , 36 Ga. L.Rev. 1 (2001).\\nOur Uniform Power of Attorney Act (\\\"UPAA\\\"), W.Va. Code \\u00a7 39B-1-101 et seq . [2012], defines the term \\\"durable\\\" as follows: \\\" 'Durable,' with respect to a power of attorney means not terminated by the principal's incapacity.\\\" W.Va. Code \\u00a7 39B-1-102(2) [2012]. Further, \\\"[a] power of attorney created under [the UPAA] is durable unless it expressly provides that it is terminated by the incapacity of the principal.\\\" W.Va. Code \\u00a7 39B-1-104 [2012].\\nThe instant case concerns whether the nursing home could rely on Kimberly to act as Mother Nelson's DPOA during the admission process. To resolve this question, we examine our UPAA.\\nWe begin with a review of our rules of statutory construction. This Court has held that in deciding the meaning of a statutory provision, \\\"[w]e look first to the statute's language. If the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed.\\\" Appalachian Power Co. v. State Tax Dep't of W. Va. , 195 W.Va. 573, 587, 466 S.E.2d 424, 438 (1995) ; see also Syllabus Point 2, Crockett v. Andrews , 153 W.Va. 714, 172 S.E.2d 384 (1970) (\\\"Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.\\\"); and Syllabus Point 2, State v. Epperly , 135 W.Va. 877, 65 S.E.2d 488 (1951) (\\\"A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.\\\").\\nAdditionally, this Court has held that \\\"[a] statute is open to construction only where the language used requires interpretation because of ambiguity which renders it susceptible of two or more constructions or of such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning.\\\" Sizemore v. State Farm Gen. Ins. Co ., 202 W.Va. 591, 596, 505 S.E.2d 654, 659 (1998) (internal quotations and citation omitted).\\nOur main inquiry is whether the nursing home could rely on Kimberly to act as Mother Nelson's DPOA during the admission process. The UPAA addresses when a person may accept and rely upon an acknowledged DPOA:\\nA person who in good faith accepts an acknowledged power of attorney without actual knowledge that the power of attorney is void, invalid or terminated, that the purported agent's authority is void, invalid or terminated, or that the agent is exceeding or improperly exercising the agent's authority may rely upon the power of attorney as if the power of attorney were genuine, valid and still in effect, the agent's authority were genuine, valid and still in effect, and the agent had not exceeded and had properly exercised the authority except as to a conveyance of interests in real property where the principal has previously filed a notice of termination of the power of attorney in the office of the clerk of the county commission in the county in which the property is located.\\nW.Va. Code \\u00a7 39B-1-119(c) [2012].\\nThe nursing home argues that pursuant to W.Va. Code \\u00a7 39B-1-119(c), it \\\"had no duty to question [Kimberly's] authority to act as successor agent. To the contrary, without actual knowledge that the durable power of attorney is in some way defective, Hillcrest [Nursing Home] can act in good faith on the representations made by [Kimberly] when she admitted her mother to the facility.\\\" Conversely, Kimberly argues that W.Va. Code \\u00a7 39B-1-119(c) does not apply to successor agents. Instead, according to Kimberly, the UPAA's exclusive provision governing successor agents is contained in W.Va. Code \\u00a7 39B-1-111(b). Thus, the first issue we must resolve is whether the term \\\"agent\\\" in W.Va. Code \\u00a7 39B-1-119(c), includes a successor agent.\\nKimberly was listed as the successor agent in Mother Nelson's DPOA. The UPAA addresses successor agents in W.Va. Code \\u00a7 39B-1-111(b) :\\n(b) A principal may designate one or more successor agents to act if an agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve. A principal may grant authority to designate one or more successor agents to an agent or other person designated by name, office or function. Unless the power of attorney otherwise provides, a successor agent:\\n(1) Has the same authority as that granted to the original agent; and\\n(2) May not act until all predecessor agents have resigned, died, become incapacitated, are no longer qualified to serve, or have declined to serve.\\nThe UPAA defines the term \\\"agent\\\" in W.Va. Code \\u00a7 39B-1-102(1) [2012] as follows:\\n(1) \\\"Agent\\\" means a person granted authority to act for a principal under a power of attorney, whether denominated an agent, attorney-in-fact or otherwise. The term includes an original agent, coagent, successor agent and a person to which an agent's authority is delegated.\\n(Emphasis added).\\nBecause this definition expressly includes a \\\"successor agent,\\\" we find that the term \\\"agent\\\" in W.Va. Code \\u00a7 39B-1-119(c) includes a successor agent. We find no support for Kimberly's argument that W.Va. Code \\u00a7 39B-1-111(b) is the sole provision that applies to a successor agent. Neither that code section, nor W.Va. Code \\u00a7 39B-1-119 include any such limitation and we decline to read into the UPAA that which it does not state. \\\"It is not for this Court arbitrarily to read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.\\\" Syllabus Point 11, Brooke B. v. Ray , 230 W.Va. 355, 738 S.E.2d 21 (2013). Instead, based on the clear, unambiguous definition of agent set forth in W.Va. Code \\u00a7 39B-1-102(1), we find that W.Va. Code \\u00a7 39B-1-119(c) applies to the instant case.\\nThe nursing home accepted the DPOA from Kimberly at the time of Mother Nelson's admission and relied on her authority. Pursuant to W.Va. Code \\u00a7 39B-1-119(c), the nursing home could rely on the DPOA as long as it was without actual knowledge (1) that the DPOA was void, invalid or terminated, (2) that Kimberly's authority was void, invalid or terminated, or (3) that Kimberly was exceeding or improperly exercising her authority. Upon review, we find that the nursing home could rely on Kimberly's authority to serve as her mother's DPOA.\\nFirst, it is undisputed that Mother Nelson's DPOA was not \\\"void, invalid or terminated\\\" at the time of her admission to the nursing home. The next two factors require an examination of whether Kimberly had the authority under the DPOA to enter into the arbitration agreement on her mother's behalf.\\nUnder W.Va. Code \\u00a7 39B-1-111(b), a successor agent may act once all of the predecessor agents have \\\"resigned, died, become incapacitated, are no longer qualified to serve, or have declined to serve.\\\" Kimberly argues that her authority to act as Mother Nelson's DPOA \\\"had to be triggered by Stephen Nelson's inability or unwillingness to continue to serve as his mother's attorney-in-fact.\\\" Because Stephen Nelson was not unable or unwilling to serve as his mother's DPOA, according to his affidavit, Kimberly argues that she did not have the actual authority to enter into the arbitration agreement on her mother's behalf. By contrast, the nursing home argues that Kimberly had the authority, under the plain language of the DPOA, to enter into the arbitration agreement. In fact, according to the nursing home, Kimberly exercised her rights and duties under the DPOA before, during, and after Mother Nelson's admission to the nursing home. After review, we agree with the nursing home.\\nThe record demonstrates that Kimberly consistently exercised the rights and duties granted to her under the DPOA on Mother Nelson's behalf before, during, and after the nursing home admission process. Conversely, the record is devoid of any instance of Stephen Nelson exercising any rights or duties granted to him under Mother Nelson's DPOA.\\nKimberly began exercising the rights and duties granted to her under the DPOA approximately two years prior to Mother Nelson's admission to the nursing home. These duties and rights included 1) managing Mother Nelson's financial affairs, 2) arranging medical treatment for her mother at two different hospitals, and 3) consenting to medical care her mother received.\\nThe most relevant instance of Kimberly exercising her authority under the DPOA prior to Mother Nelson's admission to the nursing home involved the \\\"Pre-Admission Screening\\\" form. Ten days before Mother Nelson's admission to the nursing home, Kimberly, rather than Stephen Nelson, completed and signed the \\\"Pre-Admission Screening\\\" form required by the DHHR prior to placing a person in a skilled nursing facility. Kimberly, rather than Stephen Nelson, is identified in this form as the \\\"DPOA.\\\" This form was sent to the nursing home prior to Mother Nelson's admission. Thus, at the time the nursing home relied on Kimberly to act as her mother's DPOA, it had this DHHR approved document that identified Kimberly, rather than Stephen Nelson, as Mother Nelson's DPOA. Additionally, the nursing home had the DPOA itself that provided in clear, unambiguous language that Kimberly was permitted to act on her mother's behalf \\\"[i]f, for any reason, STEPHEN NELSON cannot or will not serve[.]\\\"\\nNext, while our main inquiry concerns whether the nursing home could rely on Kimberly's authority at the time she signed the arbitration agreement, we note that subsequent to Mother Nelson's admission to the nursing home, Kimberly, rather than Stephen Nelson, continued to serve as Mother Nelson's DPOA. Throughout Mother Nelson's stay at the nursing home, Kimberly was in regular contact with the nursing home and made numerous medical care and treatment decisions on her mother's behalf. Further, Kimberly, rather than Stephen Nelson, is listed as Mother Nelson's \\\"MPOA\\\" in a medical record from CAMC dated December 1, 2015. This CAMC record provides \\\"Pt.'s [Mother Nelson's] daughter Kim is MPOA and states that she does not wish for PT. to return to Hillcrest and reports that she would like her mother to be moved to another facility.\\\" Also, after Mother Nelson left Hillcrest Nursing Home, she entered another facility, Montgomery General Elderly Care. Kimberly, rather than Stephen Nelson, is identified as Mother Nelson's \\\"POA-Health Care\\\", \\\"POA-Financial,\\\" \\\"Agent,\\\" and \\\"Emergency Contact\\\" in documents from Montgomery General Elderly Care.\\nIn sum, the record clearly establishes that Kimberly exercised her rights and duties under the DPOA 1) for two years prior to the nursing home admission, 2) during the nursing home admission process, 3) throughout Mother Nelson's residency at the nursing home, and 4) after Mother Nelson left Hillcrest and moved into Montgomery General Elderly Care. Conversely, there is no evidence that Stephen Nelson exercised any rights and duties granted to him under the DPOA-his inaction demonstrates that he declined to serve as Mother Nelson's DPOA. Because Stephen Nelson declined to serve, and because Kimberly acted as her mother's DPOA from 2011 through 2016, we conclude that Kimberly had the authority to enter into the arbitration agreement with the nursing home. Based on this conclusion, we find that when Kimberly signed the arbitration agreement, her authority was not \\\"void, invalid or terminated,\\\" nor was she \\\"exceeding or improperly exercising her authority.\\\" Therefore, under the plain language of W.Va. Code \\u00a7 39B-1-119(c), the nursing home was permitted to rely on Kimberly's authority as Mother Nelson's DPOA when Kimberly signed the arbitration agreement on her mother's behalf.\\nIV. CONCLUSION\\nThe circuit court's December 29, 2016, order is reversed and this matter is remanded to the circuit court for entry of an order granting the nursing home's motion to dismiss and to compel arbitration.\\nReversed and Remanded With Directions.\\nCHIEF JUSTICE WORKMAN dissents and reserves the right to file a dissenting Opinion.\\nThe plaintiff named a number of corporations as defendants in this lawsuit. The plaintiff alleged that these corporate defendants \\\"engaged in the custodial care of . individuals . in need of nursing care and treatment at Hillcrest Health Care Center.\\\" These corporations include Commercial Holdings, LLC; Integrated Commercial Enterprises, Inc.; Manzanita Holdings, LLC; Lifetree, LLC; Wineberry, LLC; and Hillcrest Health Care Center, LLC. The plaintiff also named two Hillcrest Health Care Center administrators as defendants, Tammy Fortney and Matthew Poorman. For ease of the reader, we refer to the petitioners collectively as \\\"Hillcrest Nursing Home\\\" or \\\"nursing home.\\\"\\nThe causes of action alleged in the complaint include corporate negligence, nursing home violations, medical malpractice, malice and/or gross negligence, fraud, premises liability, violations of the West Virginia Consumer Credit and Protection Act, and wrongful death.\\nThis Court has held that \\\"[w]hen a trial court is required to rule upon a motion to compel arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. \\u00a7 1 -307 (2006), the authority of the trial court is limited to determining the threshold issues of (1) whether a valid arbitration agreement exists between the parties; and (2) whether the claims averred by the plaintiff fall within the substantive scope of that arbitration agreement.\\\" Syllabus Point 2, State ex rel. TD Ameritrade, Inc. v. Kaufman , 225 W.Va. 250, 692 S.E.2d 293 (2010).\\nWest Virginia Code \\u00a7 39B-1-119(c), contained in our UPAA, is consistent with the model Uniform Power of Attorney Act which was adopted in 2006. The comment section of Section 119 of the Uniform Power of Attorney Act provides:\\nSection 119 permits a person to rely in good faith on the validity of the power of attorney, the validity of the agent's authority, and the propriety of the agent's exercise of authority, unless the person has actual knowledge to the contrary (subsection (c) ). Although a person is not required to investigate whether a power of attorney is valid or the agent's exercise of authority proper , subsection (d) permits a person to request an agent's certification of any factual matter (see Section 302 for a sample certification form) and an opinion of counsel as to any matter of law.... Subsection (f) states that for purposes of Sections 119 and 120, a person is without actual knowledge of a fact if the employee conducting the transaction is without actual knowledge of the fact.\\nUnif. Power of Attorney Act, \\u00a7 119 (2006) (emphasis added).\\nThis issue concerns whether Kimberly had the actual authority to enter into the arbitration agreement with the nursing home on her mother's behalf. There is no claim that this matter concerns apparent authority. In Syllabus Point 1 of General Electric Credit Corporation v. Fields , 148 W.Va. 176, 133 S.E.2d 780 (1963), this Court held the following with regard to apparent authority: \\\"One who by his acts or conduct has permitted another to act apparently or ostensibly as his agent, to the injury of a third person who has dealt with the apparent or ostensible agent in good faith and in the exercise of reasonable prudence, is estopped to deny the agency relationship.\\\" By contrast,\\nan actual agent is one who, expressly or by necessary implication, is authorized to act for the principal. Actual authority may be defined as the power which a principal intentionally confers upon the agent or intentionally or by lack of ordinary care allows the agent to believe he or she possesses. Thus, an agent's actual authority requires action by the principal, expressly or by implication granting the agent the authority to act on the principal's behalf. Such authority is created by written or spoken words or other conduct of the principal, reasonably interpreted.\\n2A C.J.S. Agency \\u00a7 145 (2018) (footnotes omitted).\\nAccording to W.Va. Code \\u00a7 39B-1-113 [2012], \\\"Except as otherwise provided in the power of attorney, a person accepts appointment as an agent under a power of attorney by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance.\\\" Notwithstanding Stephen Nelson's affidavit that he was \\\"at all times material hereto willing and able to perform my [DPOA] duties,\\\" the record does not contain any examples of Stephen Nelson exercising any duties or rights granted to him under the DPOA before, during, or after Mother Nelson's admission to the nursing home.\\nIf this Court accepted the argument that Kimberly was not permitted to act under the DPOA because Stephen Nelson was willing and able to perform his \\\"DPOA duties\\\", that would imply that all of the actions Kimberly performed under the DPOA in the two years prior to Mother Nelson's admission to the nursing home were improper. Stated another away, this would mean that two hospitals, various financial institutions, and the DHHR all erred by relying on Kimberly's authority to act under the DPOA.\"}"

va/1846526.json

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+"{\"id\": \"1846526\", \"name\": \"Collier v. Hiden\", \"name_abbreviation\": \"Collier v. Hiden\", \"decision_date\": \"1917-03-15\", \"docket_number\": \"\", \"first_page\": \"453\", \"last_page\": \"457\", \"citations\": \"120 Va. 453\", \"volume\": \"120\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:48:49.387938+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Collier v. Hiden.\", \"head_matter\": \"Richmond.\\nCollier v. Hiden.\\nMarch 15, 1917.\\n1. Boundaries \\u2014 Petition to Determine \\u2014 Parties.\\u2014Acts of Assembly of 1912, p. 133, provide, \\u201cthat any person having an interest in real estate upon petition filed in the court which would have jurisdiction in an action of ejectment concerning such real estate, shall have the right to have ascertained and designated by the said court, the true boundary line or lines to such real estate as to one or more of the coterminous landowners. All persons interested in the coterminous real estate shall be made parties to the said petition which shall be matured for hearing as provided for maturing an action of ejectment, except that it shall not be necessary to serve a copy of the petition.\\u201d Under this statute where the petitioner has only a life estate, he must either have the remaindermen unite with him as plaintiffs, or have them made defendants.\\n2. Jury \\u2014 Waiver\\u2014Boundaries.\\u2014Under section 3166, Pollard\\u2019s Code 1904, a trial by jury is waived if neither plaintiff nor defendant demand such trial. But Acts of 1912, p. 133, governing proceedings to determine boundaries specifically provides that a \\u201ctrial by jury may be waived by consent of parties,\\u201d and therefore requires a trial by jury in every case arising under it, unless such trial is waived by the consent of parties both plaintiff and defendant.\\nAppeal from a decree of the Circuit Court of Greene county. Decree for complainant. Defendant appeals.\\nReversed.\\nThe opinion states the case.\\nJohn S. Chapman, for the appellant.\\nE. M. Averill, for the appellee.\", \"word_count\": \"1490\", \"char_count\": \"8543\", \"text\": \"Sims, J.,\\ndelivered the opinion of the court.\\nThis case involves a proceeding by petition to have ascertained and designated by the court the true boundary lines of real estate under Acts of Assembly 1912, p. 133.\\nThe appellee was plaintiff and the appellant defendant in the court below, hereinafter referred to as plaintiff and defendant.\\nThe proceeding was erroneously had on the chancery side, instead of the law side, of the court, as the statute provides, but in the view we take of the case it is not necessary to consider the effect of that upon the validity of the process or otherwise.\\nThere was no appearance by the defendant until after final order or decree in the case.\\nThe plaintiff was the owner of a life estate only in his real estate, his wife and children being entitled thereto in remainder in fee. The latter were not made parties to the proceeding.\\nTrial by jury was not waived \\\"by consent of parties\\\" and the court below disposed of the case without a trial by jury.\\nThere are five assignments of error in the petition before us, praying that a new trial be awarded1, only two of which need be considered, which are in effect as follows:\\nFirst. That the statute aforesaid requires that all persons interested in the coterminous real estate shall be made parties to the petition; and that, therefore, the wife and children of the plaintiff were necessary parties to the pro-ceding, being the owners in remainder in fee of the land in which the plaintiff owned a life estate only. It is not denied that the plaintiff, as life tenant, could alone file his petition; but it is alleged that under the statute he should have either had the remaindermen unite with him as plaintiffs or have made them defendants.\\nSecond. That the said statute provides that, \\\"The trial by jury may be waived by consent of parties;\\\" that without such consent the questions involved must be tried by a jury; that the record shows no consent of parties to waive a trial by jury; and hence the final order or decree in the case was vdid for lack of jurisdiction in the court to enter it.\\nWe will consider these assignments of error in their order as stated above.\\nThe statute in question is as follows:\\n\\\"1. Be it enacted by the General Assembly of Virginia, That any person having an interest in real estate upon petition filed in the court which would have jurisdiction in an action of ejectment concerning such real estate, shall have the right to have ascertained and designated by the said court, the true boundary line or lines to such real estate as to one or more of the coterminous landowners. All persons interested in the coterminous real estate shall be made parties to the said petition which shall be matured for hearing as provided for maturing an action of ejectment, except that it shall not be necessary to serve a copy of the petition.\\n\\\"The trial shall be conducted as other trials at law and the same rules of evidence shall apply and the same defenses may be made as in other actions at law; the trial by jury may be waived by consent of parties, the judgment of the court shall be recorded in the common law order book and in the current deed book of the court, and indexed in the name of the parties to the petition. The court may, upon application of either party to the petition, by order in term time or in vacation, direct such survey or surveys to be made as may be deemed necessary. The judgment of the court shall, unless reversed, forever settle and determine and designate the true boundary line or lines in question, and be binding upon the parties to such petition, their heirs, devisees and assigns. The judgment of the court shall be subject to review by the Supreme Court of Appeals of the State upon writ of error.\\\"\\nFirst. With respect to the first assignment of error above mentioned.\\nWe are of opinion, that this assignment is well taken. The statute, it is true, allows \\\"any person having an interest in real estate\\\" to file the petition provided for thereby; but it further, in express terms, provides that, \\\"All persons interested in the coterminous real estate shall be made parties to the said petition \\\" The statute is not free from ambiguity with respect to the meaning with which it uses the word \\\"coterminous\\\" in the sentence here quoted, in view of its use of the same word in its designation of \\\"coterminous landowners\\\" in the preceding sentence. . The \\\"landowners\\\"' referred to in the former sentence are clearly meant by the statute to be the owners of the land on the opposite side of the boundary line from the plaintiff, to-wit, the defendants in the proceeding. When the statute, however, in the following sentence, does not designate those who shall be made parties to the petition as- all \\\"coterminous landowners,\\\" but \\\"all persons interested in the coterminous real estate,\\\" the language would seem to have a broader meaning, and to include the owners of the land on both sides of the boundary line in controversy, to-wit, both plaintiffs and defendants; and in view, of the policy of the law and of this statute to lessen litigation, we think this meaning must be given to it.\\nWe are, therefore, of opinion that the said parties entitled in fee in remainder to-the land in which the plaintiff owned only a life estate, were necessary parties to'the proceeding and should have been made parties plaintiff or defendant to the petition.\\nSecond. With respect to the second assignment of error above mentioned.\\nIt is true that the statute under consideration provides that the petition \\\"shall be matured for hearing as provided for maturing an action of ejectment, except that it shall not be necessary to serve a copy of the petition,\\\" and that \\\"The trial shall be conducted as other trials at law \\\" If the statute had stopped there with respect to its provisions touching the procedure under it, no express consent of both plaintiff and defendant to waiver of the trial by jury would be necessary; for in other trials at law, by virtue of section 3166 of the Code of Virginia (Pollard's Code, 1914) a trial by jury is waived if neither plaintiff nor defendant demand such trial. But the statute we have under consideration does not stop there, but goes on, and uses different language from said section 3166 with respect to the manner in which the trial by jury may be waived, namely: it provides that \\\"the trial by jury may be waived by consent of parties.\\\" (Italics supplied.) We must interpret the language of the legislature as we find it and give some meaning to this further provision of the statute. In doing so we cannot escape the conclusion that the statute requires a trial by jury in every case arising under it unless such trial is waived by the consent of parties both plaintiff and defendant.\\nWe are, therefore, of opinion that this assignment of error is also well taken.\\nFor the foregoing reasons, the order or decree complained of must be set aside and annulled and a new trial granted.\\nReversed.\"}"

va/1860972.json

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+"{\"id\": \"1860972\", \"name\": \"J. C. Harris v. Commonwealth\", \"name_abbreviation\": \"Harris v. Commonwealth\", \"decision_date\": \"1922-11-16\", \"docket_number\": \"\", \"first_page\": \"688\", \"last_page\": \"695\", \"citations\": \"134 Va. 688\", \"volume\": \"134\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T20:23:14.766741+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. C. Harris v. Commonwealth.\", \"head_matter\": \"Richmond.\\nJ. C. Harris v. Commonwealth.\\nNovember 16, 1922.\\n1. Assault and Battbby \\u2014 Malicious Shooting \\u2014 Homicide\\u2014What Constitutes Malicious Shooting with Intent to Kill. \\u2014 Whether a person in-dieted under section 4402 of the Code of 1919 is guilty of malicious shootihg with intent to kill depends upon whether, if he had killed the person at whom he shot, instead of only wounding him, he would have been guilty of murder, or would have been only guilty of manslaughter, or homicide hi self-defense. If he would have been guilty of murder had he killed the person at-whom he shot, he is guilty of malicious shooting with intent to kill; if he would only have been guilty of manslaughter, then he is guilty of unlawful shooting; and, if he shot in self-defense, he is not guilty of any offense.\\n2. Homicide \\u2014 Murder or Manslaughter--Malice \\u2014 Provocation\\u2014Passion \\u2014 Words as Provocation. \\u2014 Every unlawful homicide must be murder or manslaughter. Whether it is murder or manslaughter depends entirely upon whether or not the act was done with malice, express or implied. A reasonable provocation is always necessary to reduce a felonious homicide, committed upon sudden provocation, from murder to manslaughter. Words alone, however insulting or contemptuous, are never a sufficient provocation, where a deadly weapon is used, to have that effect. In order to so reduce the offense, it is necessary that there should be a reasonable provocation which pro- . duces a sudden passion, under the influence of which the offense is committed. Provocation without passion, or passion without provocation, will not do; but both must concur to reduce the offense to the grade of manslaughter.\\n3. Assault and Batteby \\u2014 Malicious Shooting \\u2014 Malice.\\u2014In a prosecution for malicious shooting, where it was shown that the shooting was unlawful and without reasonable provocation, and the evidence failed to disclose any circumstances of palliation, the jury were compelled to find, as a matter of fact, that the shooting was done with malice.\\n4. Instbuctions \\u2014 Party\\u2019s Right to Instruction upon his Theory of the Case\\u2014 Evidence to Support Instructions. \\u2014 While it is true that a plaintiff or defendant is entitled to an instruction upon his theory of the case, this does not mean that merely because a defendant has a theory of his case he is thereby entitled to an instruction upon that theory. It is only when such an instruction is supported by some appreciable evidence that the rule can be invoked, that the party is entitled to an instruction upon his theory of the case.\\n5. Instructions \\u2014 Party\\u2019s Bight to Instruction upon his Theory of the Case\\u2014 Evidence to Support Instructions \\u2014 Case at Bar. \\u2014 In the instant case, a prosecution for malicious shooting, defendant objected that in declining to give instructions asked by him on provocation, self-defeDse, and his intoxication at the time of the shooting, the court refused to present to the jury the law covering accused\\u2019s theory of the case.\\nHeld: That, as the record failed to disclose any evidence upon which the instructions could have been based, t-heir refusal was not error.\\n6. Appeal and Error \\u2014 Error in Instructions \\u2014 Where the Jury could not have Found a Different Verdict. \\u2014 Where, as in the instant case, the Supreme Court of Appeals can see from the entire record that the jury could not properly have returned a different verdict, it is unnecessary for the court to consider the propriety of the rulings of the trial court in giving and refusing instructions, and it will not, under such circumstances, reverse the judgment and set aside the verdict.\\nError to a judgment of the Circuit Court of Nelson county.\\nAffirmed.\\nThe opinion states the case.\\nJ. T. Coleman, Jr., L. G. Tucker and Jno. D. Easley, for the plaintiff in error.\\nJohn R. Saunders, Attorney-General, J. D. Hank, Jr., Assistant Attorney-General, and Leon M. Bazile, Second Assistant Attorney-General, for the Commonwealth.\", \"word_count\": \"2574\", \"char_count\": \"14864\", \"text\": \"West, J.,\\ndelivered the opinion of the court.\\nJ. C. Harris obtained this writ of error to a judgment sentencing him to the penitentiary for three years for maliciously shooting McCue Quick.\\nThe only assignment of error relied on is the action of the trial court in granting instructions Nos. 1 and 2 offered by the Commonwealth, and in refusing to give instructions \\\"A,\\\" \\\"B\\\" and \\\"C\\\" requested by the accused. The following are all the instructions given:\\n\\\"1. The court instructs the jury that on a charge of a malicious shooting malice is presumed from the fact' of shooting with a deadly weapon, and when the shooting is proved, and is unaccompanied by circumstances of palliation, the burden of disproving malice is thrown upon the accused.\\n\\\"2. And the court further instructs the jury that to constitute a malicious shooting, it is not necessary that malice should exist any particular length of time prior to the shooting, it is only necessary that such intention should come into existence for the first time at the time of the shooting, or any time previous.\\\"\\n\\\"D. The court instructs the jury that the law presumes every person charged with crime to be innocent until his guilt is established by the Commonwealth beyond a reasonable doubt, and this presumption of innocence goes with the prisoner through the entire case, and applies to' every stage thereof; and they are instructed that although they might have believed, when the Commonwealth closed its case, that the prisoner at the bar was guilty beyond a reasonable doubt, yet, if after having heard the evidence introduced on behalf of the prisoner, they have a reasonable doubt as to any fact or circumstances essential to prove the charge made against him in the indictment, it is their duty to give the prisoner the benefit of the doubt and find him not guilty.\\\"\\nThe following are the instructions tendered by the accused and refused by the court:\\n\\\"A. The court instructs the jury that if they believe from the evidence that Quick provoked the defendant, or brought on the difficulty, and thereby caused the defendant to shoot him in the heat of passion, then the jury cannot convict the accused of anything more than common assault.\\\"\\n\\\"B. The court instructs the jury that if they believe from the evidence that the defendant reasonably apprehended that Quick would do him bodily harm, then you are instructed that the defendant had the right to repel such assault or apprehension of bodily harm by all the force he deemed necessary, and that he was not compelled to retreat from said Quick, but might, in his turn, become the assailant, inflicting bodily wounds until his person was out of danger.\\\"\\n\\\"C. The court instructs the jury that' even though they may believe from the evidence that the accused shot and wounded Quick without just cause, but that at the time of said shooting the accused was so intoxicated as to be incapable of having or entertaining malice towards the said Quick, or an intention to wound the said Quick, they cannot find him guilty of malicious or unlawful shooting.\\\"\\nMcCue Quick was a tenant on a farm owned by the accused in Nelson county, and resided thereon in a house with another tenant, Robert Goolesby, who was Quick's father-in-law. The relations between Quick and the accused had always been very friendly. On the day of the shooting the accused, who lived on a nearby farm, visited the Quick home several times, enquiring for Robert Goolesby. Quick was away in the forenoon. When he returned between one and two o'clock he found the accused in his home and invited him to dinner. The accused accepted his hospitality and after dinner, Quick, at the request of the accused, played a violin, while one of the ladies of the family played the guitar and sang, for his entertainment.\\nQuick and the accused went into Mrs. Goolesby's cookroom where they engaged in friendly conversation, while Quick was drying some tobacco by the stove. Mrs. Goolesby came in and on being asked by the accused where her husband was, stated he was at the ball game. Tenant Goolesby had not finished planting his corn and the accused said to his wife: \\\"Tell the old man when he comes back he had better leave here before I do something desperate.\\\" Fannie Goolesby, the sister-in-law of Quick and the daughter of Mr. Goolesby, came in the room and said to the accused: Mr. Harris, you wait and tell papa that; if you got anything to say, say it to him and not to mamma. ' ' The accused replied: \\\"You damn little coxy b \\u2014 , what have you to do with it?\\\" Quick remonstrated with the accused about the language used by him to Miss Goolesby, saying: \\\"Mr. Harris, you ought not to talk to a child that way.\\\" . The moment these words were spoken the accused, who was seated behind Quick, shot at Quick three times, the first shot passing through and scorching the hair on his head, the second, fired just as he jumped up to leave the room, striking him in the back and coming out at his neck, and the third, fired up the steps, as Quick passed into another room, missed him and struck a little child. Quick did not have a knife in his hand at the time he was shot. After the shooting the accused walked out of the house and went home without offering any assistance to either of the persons he had wounded. Quick was taken to the hospital and remained there three weeks.\\nThe evidence introduced on behalf of the Commonwealth also tended to show that the accused was not under the influence of liquor the day of the shooting, and that neither Quick nor any member-of the Goolesby family furnished him any intoxicating liquor. The accused testified that he went to the Goolesby farm to see a colored man, and not finding him came by the Goolesby home where he purchased for one dollar a half-gallon jar of a concoction known as Old Hen, and drank freely of it. His account of the shooting does not differ materially from that of the Commonwealth's witnesses, above related. He testified that he and Quick had drunk about a quart of Old Hen; that he put the jar in a bag and placed the bag at the door; that some one came in and said the children had turned his whiskey over and he said, \\\"Good God, don't turn my whiskey over;\\\" that he and Quick were talking about a Mr. Lynch bringing a harrow across a piece of land, and kept arguing about it; and that all at once Quick said he didn't give a damn for any son-of-a-b\\u2014 with a pistol against his knife; that accused had his pistol in his front pocket and Quick had his knife, unopened, in his hand, when he made this remark; and that before he could open his knife he, the accused, shot him three times, the third shot being fired because he thought Quick was going to get a gun.\\nThe foregoing are the material facts in the case.\\nThe indictment was drawn under section 4402, Code 1919, and charged the accused with feloniously and maliciously shooting McCue Quick, with intent to maim, disfigure, disable and kill.\\nWhether a person indicted under this statute is guilty of malicious shooting, with intent to kill, depends upon whether, if he had killed the person at whom he shot, instead of only wounding him, he would have been guilty of murder, or would have been only guilty of manslaughter, or homicide in self-defense.\\nIf, in the instant case, the accused would have been guilty of murder had he killed Quick, then he is guilty of malicious shooting with the intent to kill, of which he was convicted; if he would have been guilty of manslaughter only, then he is guilty of unlawful shooting; and if he shot in the proper defense of himself he is not guilty of any offense.\\nEvery unlawful homicide must be murder or manslaughter. Whether it is murder or manslaughter depends entirely upon whether or not the act was done with malice, express or implied. A reasonable provocation is always necessary to reduce a felonious homicide, committed upon sudden provocation, from murder to manslaughter. Words alone, however insulting or contemptuous, are never a sufficient provocation, where a deadly weapon is used, to have that effect. In order to so reduce the offense, it is necessary that there should be a reasonable provocation which produces a sudden passion, under the influence of which the offense is committed. Provocation without passion, or passion without provocation, will not do; but both must concur to reduce the offense to the grade of manslaughter. Read v. Commonwealth, 22 Gratt. (63 Va.) 937.\\nThe accused's own statement of how the shooting occurred fails to disclose that Quick did any act which could be construed to constitute a reasonable provocation for the shooting; and the language used by him could not constitute a sufficient provocation. If Quick made the remark about a son-of-a-b\\u2014 with a pistol against his knife, supra, as claimed by the accused, it does not clearly appear that he had reference to the accused, as accused's pistol was then in his pocket and had not been mentioned.\\nThe shooting being unlawful and without reasonable provocation, and the evidence failing to disclose any circumstances of palliation, the jury were compelled to find, as a matter of fact, that it was done with malice.\\nThe accused complains that the court by its refusal to give instructions \\\"A,\\\" \\\"B\\\" and \\\"C\\\" declined thereby to present to the jury the law covering his theory of the case.\\nIt is true this court has said a plaintiff, or defendant, is entitled to an instruction upon his theory of the case. Small v. Va. Ry. & P. Co., 125 Va. 421, 99 S. E. 525. But by that language the court did not mean to say, merely because a defendant has a theory of his case, he is thereby entitled to an instruction upon that theory. Only when such an instruction is supported by some appreciable evidence can this rule be invoked. Realty Co. v. Burcum, 129 Va. 466, 106 S. E. 375.\\nA careful and painstaking examination of the record in the instant case fails to disclose any evidence upon which instructions \\\"A,\\\" \\\"B\\\" and \\\"C\\\" could be properly based, and we shall refuse to consider further the assignment of error as to granting and refusing instructions. Where, as in the instant case, the court can see from the entire record that the jury could not properly have returned a different verdict, it is unnecessary for this court to consider the propriety of the rulings of the trial court in giving and refusing instructions, and it will not, under such circumstances, reverse the judgment and set aside the verdict. Winfree v. Bank, 97 Va. 83, 33 S. E. 375; Burks' Pl. & Pr., sec. 267; Neal & Binford v. Taylor, 106 Va. 651, 56 S. E. 590; Fields v. Virginian Ry. Co., 114 Va. 558, 77 S. E. 501; Adams Express Co. v. Allendale, 116 Va. 1, 81 S. E. 42, Ann. Cas. 1916-D, 894; Wood v. Jefferies, 117 Va. 193, 83 S. E. 1074; Straus v. Fahed, 117 Va. 633, 85 S. E. 969; Standard, etc., Co. v. Monroe, 125 Va. 442, 99 S. E. 589.\\nFor the reasons stated, the judgment will be affirmed.\\nAffirmed.\"}"

va/1862470.json

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+"{\"id\": \"1862470\", \"name\": \"Julia Hite Gallagher v. Waynesboro Mutual Telephone Company\", \"name_abbreviation\": \"Gallagher v. Waynesboro Mutual Telephone Co.\", \"decision_date\": \"1925-11-12\", \"docket_number\": \"\", \"first_page\": \"383\", \"last_page\": \"392\", \"citations\": \"143 Va. 383\", \"volume\": \"143\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T18:15:43.665231+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Julia Hite Gallagher v. Waynesboro Mutual Telephone Company.\", \"head_matter\": \"Richmond.\\nJulia Hite Gallagher v. Waynesboro Mutual Telephone Company.\\nNovember 12, 1925.\\nThe opinion states the case.\\nCharles Curry and Rudolph Bumgardner, for the plaintiff in error.\\nS. D. Timberlake, Jr., and J. M. Perry, for the defendant in error.\", \"word_count\": \"2646\", \"char_count\": \"14832\", \"text\": \"Prentis, P.,\\ndelivered the opinion of the court.\\nThe plaintiff was injured while using a telephone furnished her at her residence by the defendant company, and sued for serious permanent injury affecting her hearing in the left ear. At the trial the defendant demurred to the plaintiff's evidence, in which demurrer the plaintiff joined, the court sustained the demurrer and entered judgment thereon in favor of the defendant, and the plaintiff is here assigning error.\\nThe pertinent facts are that the defendant owns and operates a telephone system in the town of Waynesboro, the plaintiff being one of its subscribers. There are certain telephone lines which appear to be privately owned and controlled by certain farmers of Augusta county. These farmers' lines are carried to the corporate limits of the town of Waynesboro and are there connected with the wires of the defendant which run into its switchboard. The defendant is required by law and in the public interest to connect with these lines and to interchange service therewith.\\nHoward Bush was one of some fifteen or sixteen farmers \\u2022who had grounded lines so coming into Waynesboro and was furnished service at the rate of $5.00 per year. These lines outside of the city limits were built and controlled exclusively by their owners, and the defendant company had no control whatever over them. In connecting these county lines (ground circuit) with its own line (metallic circuit) the defendant employed every known and improved device to protect its subscribers from any injury which might result from lightning or other dangerous currents of electricity. No negligence whatever is shown with respect to the equipment, maintenance and operation of the defendant's line, and the affirmative evidence negatives any such negligence. .\\nThe plaintiff, because partially deaf in her right ear, had the company install a telephone with an unusually large bell. On the occasion of her injury she called through the central office for connection with the telephone of Bush, to talk with Mrs. Bush. She pressed the receiver very tightly to her left ear, and then sustained the injury complained of. Mrs. Bush at the other end of the connection heard nothing unusual except the plaintiff's scream. There was no blowing out of any of the protective fuses on the defendant's lines, neither the telephone at the residence of the plaintiff nor that at the residence of Bush was in any degree injured or affeeted, both were used within half an hour afterwards and were then found to be in perfect condition.\\nAs to the Bush line, these facts appear: He lived within a mile of the corporate limits of Waynesboro, on the road running from Waynesboro to New Hope. He was one of the owners of the farmers' line, known as the Central Point line, which had been connected with the Waynesboro exchange for many years. His home was a quarter of a mile from the road, to which his lane extended. The 'wires of the Central Point farmers' line were on poles on one side of the Waynesboro \\u2014 New Hope road, but Bush built a pole line in his lane so as to connect with the Central Point wires on the highway. This line in his lane belonged to him. About two years before the plaintiff was injured, Bush, desiring to obtain electric lights at his house, put an electric light wire on poles in his lane so as to connect with the electric light line owned by the Staunton Light Company, and at some time before the injury he changed the location of his telephone wire and put it on the same poles that already carried the electric light wire. At one point he placed these wires only about seventeen inches apart. It is fairly apparent that these wires were so located at the time of the plaintiff's injury. There is nothing to indicate that the defendant company had any information whatever as to the location of these wires so improperly placed by Bush. Bush afterwards removed the telephone wire from these electric light poles because there had been considerable trouble and complaint about noises occasioned by the proximity of the telephone wire to the electric light wire.\\nThe sole suggestion as to the cause of the injury which can be found in the record is that in some way it was because of the dangerous proximity of this electric light wire to the telephone wire in Bush's lane.\\nIt is fundamental, of course, that a plaintiff in such an action can only recover by showing that the defendant's negligence is the cause of the injury, and unless this is sufficiently proved there can be no recovery. Some reliance appears to be placed by the plaintiff upon the doctrine of res ipsa loquitur, but this does not apply where the injury is due to a defective appliance which is neither managed, operated, owned or controlled by the defendant.\\nIn Peters v. Lynchburg Traction Co., 108 Va. 333, 61 S. E. 745, 22 L. R. A. (N. S.) 1188, in which the plaintiff was injured by a shock while turning off an incandescent electric light in his kitchen, it was held that he could not recover of the company which furnished the current of electricity, because he was himself the owner of the electric outfit on his premises. It was shown there that the defendant company had neither the ownership nor control of the appliances on the plaintiff's premises, the house having been wired by the owner, and the electric equipment being his own property.\\nIn Fickeisen, Adm'r, v. Wheeling Electric Co., 67 W. Va. 335, 57 S. E. 788, 27 L. R. A. (N. S.) 893, these were the salient facts: The Wheeling Company sold and delivered to the Bridgeport Company, at a point where the wires of the two companies joined, the electricity used by the latter company in lighting the streets of Bridgeport. A wire of the Bridgeport Company which carried the electric current along a street in Bridgeport was grounded, and one who came in contact with it was killed by the current. It was held that the Wheeling Company was not liable in the action for the death of such person; the reason therefor being that when the Wheeling Company delivered the electricity to the Bridgeport Company, its responsibility ceased because it had no ownership, management or control of any of the wires or appliances of the Bridgeport Company.\\nThis is clearly the actual and legal situation here, as is stated in the case of Commonwealth v. Staunton Telephone Co., 134 Va. 291, 114 S. E. 600, where this is said: \\\"In addition it was customary for many years for farmers located in Augusta county to build their lines and install their own telephones, and to have their private lines connected with the lines of the city company at the corporate limits of the city. The city company had no responsibility with reference to the maintenance of these lines outside of the corporate limits of the city.\\\"\\nThese cases illustrate and enforce the same rule: Perry v. Ohio Valley, etc., Co., 70 W. Va. 697, 74 S. E. 993; Pressley v. Bloomington, etc., Co., 271 Ill. 622, 111 N. E. 511; Sullivan v. New York Tel. Co., 157 App. Div. 642, 142 N. Y. Supp. 735; Scott v. Rome, etc., Co., 22 Ga. App. 474, 96 S. E. 569; Minneapolis Gen. Elec. Co. v. Cronon, 166 Fed. 651, 92 C. C. A. 345, 20 L. R. A. (N. S.) 816; Hoffman v. Leavenworth, Light, etc., Co., 91 Kan. 450, 138 Pac. 632, 50 L. R. A. (N. S.) 574; San Antonio Gas, etc., Co. v. Ocon, 105 Tex. 139, 146 S. W. 162, 39 L. R. A. (N. S.) 1046; 9 R. C. L. 1204, sec. 15.\\nIf we were to adopt the plaintiff's view and hold that the defendant company could be held responsible for negligence which in this instance occurred in Mr. Bush's lane, as his wires connected with the Central Point farmers' line over which the defendant has no supervision or control whatever, then to be consistent we would be driven also to hold that the owners of the Central Point farmers' line and its connections could be held, jointly or severally, liable for negligence of the defendant company occurring on its lines within the town of Waynesboro, in which they have no interest and over which they have no control. A defendant is responsible for his own negligence and for that of his agents and associates over whom he has control, but he cannot be held responsible for the negligence of another of which he is ignorant and which he has no power to foresee or prevent.\\nOur conclusion, therefore, accords with that of the trial court judge, Hon. Henry W. Holt, who has thus expressed his views:\\n\\\"This is an action by motion to recover damages for personal injury suffered by the plaintiff in 1921. She was a phone holder of the defendant company which operated in the town of Waynesboro. On said date she called a Mrs. Bush over the phone, who lived in Augusta county near Waynesboro, and who was herself a phone holder on a county line that ran into the plaintiff's (defendant's) switchboard or exchange. On page 13 of plaintiff's deposition is her account of the manner in which the accident occurred:\\n\\\" 'A. Well, I stepped to the phone, it was in my back hall, I was in the dining room and I stepped out into the back hall, where our phone is, and I called up Mrs. Howard Bush to ask if she was coming in that night, she had said several days before that she was coming and I stepped to the telephone and I said: \\\"Central, please give me 9 F 14 \\u2014 Mrs. Howard Bush,\\\" and I heard a click, just as you always hear it when your party takes her phone down, and I said: \\\"Hello, is that you?\\\" and she said: \\\"Yes,\\\" and just as I asked her if she was coming in that night there was a terrible roar, rumbling and jangling. I thought it had ruptured my ear, it was so painful, and I threw the receiver from me, and my sister who was standing there, caught me, or I would have fallen to the floor, and my ear hurt me so that I couldn't speak for fifteen minutes. It was a terrible report, I just felt as if something dreadful had occurred, I never felt anything like that before in my life.\\n\\\"'Q. It was a terrible roar?\\n\\\"'A. Just like a lot of chains and bells jangling; it made the most awful fuss and roar, just like machinery-crushing up, and I suffered from it intensely for several days. I don't suppose I would have suffered as much, if I had a perfect ear, but my hearing in this ear, the other one, had been impaired for a long while, and of course I pressed the receiver closer to my ear, I always do, in order to hear distinctly, and when this crash came, it was the worst experience I ever had in my life, and I suffered intensely several days from it.'\\n\\\"At page 34, she again described what occurred: 'I never heard anything like that before in my life. Of course you often hear noises on the phone when others ring off, but nothing in the world like this. I never heard such a crash and roar as this in all my life. I was simply dazed from it, and fell back from the phone.'\\n\\\"Dr. H. S. Hedges, a distinguished specialist, was called to testify on behalf of the plaintiff. He stated that he did examine her ear and that it was injured and that the injury probably occurred as she stated it had occurred, but that it was not possible to say if it was due to the roar and crash testified to or to a more direct electric current. It will be noted that the plaintiff attributes it to the roar and crash and no one has a better ease than the ease which she herself states. But in any respect, we have injury which may have been occasioned by one of two causes and we have a case in which there is no evidence to show that it was occasioned by an electric current as distinguished from the intermediate electrical phenomenon to which the roar and crash must be attributed, and it is always necessary before a recovery that the plaintiff place his hand upon some cause which occasioned the injury\\u2014 not upon two or more . causes which may have occasioned, for one of which the defendant is liable and for the other not.\\n\\\"These county lines go to the corporate limits. They are there taken over by the defendant and carried to its own switchboard. The evidence is that in doing this every device known to science is adopted for the protection of phone holders and the evidence further is that while it is possible to make phone users safe from direct electric currents, it is not possible in the present state of the art to prevent noises of the character of that complained of, just as it is not now possible to avoid 'static' in radio messages. Why in this particular instance it was unusual there is nothing to show. The probabilities are that the accident was due in a large measure to the fact that the plaintiff, because of her partial deafness, had the receiver pressed close against her ear.\\n\\\"The plaintiff's theory is that the cause from which the trouble came was the placing of a high power electrical line on the same poles that carried the Bush county telephone line and that by induction or direct contact the telephone wire took up power from the power line. The telephone line had been in operation about fifteen years. Long after it was installed the power wire was attached to the telephone poles. This was done without either the knowledge or consent of the defendant, and the defendant did not know that this had been done until after plaintiff's accident. These town and city switchboards are compelled to give connection to county lines. On the other hand they are given no control over them and when the connection in this case was made an actual inspection would have disclosed nothing, for the power line had not then been attached. It may well be that the tele phone company, when it brought into its switchboard a eounty line, could refuse the connection and is liable if it knew or even ought to have known, of any dangerous condition, but it cannot be that the city phone companies are liable for dangerous conditions which afterwards arise in the county without their knowledge, conditions for which they are not responsible or that they are charged with the duty of continuous inspection.\\n\\\"This, then, is the situation. The accident may have been occasioned by noise, * Tills noise appears to have been due to conditions on a county connecting line, which conditions did not obtain when that line was connected and which attached afterwards without the consent of the defendant and without its knowledge, and this status obtained up to the time of the accident; the defendant had installed all proper devices to prevent injury by direct electric shock, while it is not'possible to install any device that would eliminate noise or prevent such unusual accident as that set up here.\\n\\\"The demurrer to the evidence must be sustained.\\\"\\nAffirmed.\"}"

va/1862514.json

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+"{\"id\": \"1862514\", \"name\": \"J. R. Cover, etc. v. John Critcher\", \"name_abbreviation\": \"Cover v. Critcher\", \"decision_date\": \"1925-11-12\", \"docket_number\": \"\", \"first_page\": \"357\", \"last_page\": \"366\", \"citations\": \"143 Va. 357\", \"volume\": \"143\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T18:15:43.665231+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. R. Cover, etc. v. John Critcher.\", \"head_matter\": \"Richmond.\\nJ. R. Cover, etc. v. John Critcher.\\nNovember 12, 1925.\\nThe opinion states the case.\\nJohn T. Harris and Jos. A. Glasgow, for the plaintiff in error.\\nJohn Critcher and Hugh A. White, for the defendant in error.\", \"word_count\": \"2387\", \"char_count\": \"13501\", \"text\": \"Chichester, J.,\\ndelivered the opinion of the court.\\nThis is an action for damages by J. R. Cover, who sues for the benefit of A. B. Cover, liquidating partner of J. R. Cover, H. L. Cover, A. B. Cover, R. L. Cover and E. R. Cover, partners trading as J. R. Cover & Sons, against John Critcher, in which the jury found a verdict in favor of the plaintiffs for $10,000, which the trial court set aside on the ground that the matters at issue in the action had been theretofore adjudicated and decided against the plaintiffs in a chancery suit in the Circuit Court of Bath county, and that the issue in the instant action was therefore res adjud\\u00edcala. After setting aside the verdict, the trial court entered judgment for the defendant, Critcher.\\nThere were various pleas filed by the defendant, but for the purposes of this opinion it is only necessary to mention two of them:\\n1. Pleas of the statute of limitation, covering the one, three and five year periods;\\n2. A plea of res adjud\\u00edcala.\\nThe history of the controversy involved in litigation here is somewhat complicated and extends over a considerable period of time. By reason of the view we take of the case, it is not necessary to go into any very extended recital of the facts.\\nThe plaintiffs (the Covers) in 1917, and before that year, were engaged in the operation of tanneries in Augusta and Rockbridge counties. At the solicitation of John Critcher (the defendant) plaintiffs and defendant entered into a contract whereby they were to purchase jointly a large tract of land consisting of some 3,000 acres, known as the Firmstone tract, in Bath county, Va., for $16,500.\\nBy the terms of the contract, the plaintiffs were to pay the whole of the purchase price and take title to themselves. They were to have all the chestnut oak bark and the extract wood, and twelve years time in which to remove it.\\nThe defendant, under the contract, was entitled to the lumber and minerals on the tract, and title to the land when he had paid to the plaintiffs one-half the purchase price of the land, $8,250, the plaintiffs retaining title until this amount was paid in full. There were provisions for default in payment on the part of the defendant.\\nThe defendant bound himself to \\\"attend to all matters pertaining to obtaining a right of way or rights of way from said tract of land out to the railroad, free of cost to the party of the second part, that is, he is to pay the purchase price for said right of way or rights of way and the legal expense attached to obtaining them, but the cost of the construction of any road or roads from said property is to be borne equally by the party of the first part and the party of the second part.\\\"\\nThe Firmstone tract of land did not lie adjacent to the railroad, and plaintiffs contended that defendant represented to them that he owned, or had secured, rights of way across the lands between the Firmstone tract and the railroad to the railroad. Whether or not this was true, it transpired that defendant did not own the rights of way, and failed to secure them.\\nA temporary arrangement was made with the adjacent landowner for the moving across his land of bark and extract wood to the railroad, but a legal controversy arose between John A. Bloyd and the parties plaintiff and defendant, and between the parties to the contract, over the alleged verbal representations by defendant in regard to the right of way, which resulted, first, in the filing on April 8, 1918, in the Circuit Court of Bath county, of a bill in chancery by J ohn A. Bloyd, the owner of the land between the Firmstone tract and the railroad, against plaintiffs, denying that the owners of the Firmstone tract had any right of way over his lands and praying for an injunction. The plaintiffs filed their answer which they asked to be treated as a cross-bill as to the defendant, John Critcher, in which they charged Critcher with procuring the contract with plaintiffs for the purchase of the Firmstone tract of land by fraudulent representations as to rights of way, and praying for a rescission of the contract of March 14, 1917.\\nCritcher answered the cross-bill and denied the charge of fraud and deceit and relied upon his obligations in reference to the rights of way as set out in the written contract, as quoted heretofore. He further alleged that he was prevented from securing the rights of way as he agreed in his contract by Cover, the plaintiff, and Bloyd.\\nThe Circuit Court of Bath county, after depositions had been taken, perpetually enjoined Cover and Criteher from passing over the Bloyd land, and later, on September 21, 1920, dismissed the cross-bill filed by Cover against Critcher, filing a written opinion, in which the court stated that the plaintiff had failed to prove the charges of fraud and misrepresentations against defendant. The decree, however, dismissed the cross-bill because of laches on plaintiffs' part, but \\\"without prejudice to the said Cover to institute such other and further proceedings as he may be advised.\\\"\\n2. Nearly three years after the entry of this decree, to-wit, on August 7, 1923, Cover instituted his action (the case under review) by notice of motion for judgment against Critcher alleging damages in the sum of $51,000. The bases for damages in this action were identical with the grounds assigned in the cross-bill for the rescission of the contract. In the notice Cover alleges: \\\"You (Critcher) informed the undersigned and falsely and fraudulently represented to him that you had secured and owned a right of way or rights of way over the Randolph tract of land from the Firm-stone land to the railroad. You so positively made this false and fraudulent representation to the undersigned that the undersigned, after consideration, agreed to join with you in the purchase of said Firmstone tract of land, and on the 14th day of March, 1917, entered into a written contract with you in the following words and figures.\\\"\\nThe contract of March 14, 1917, is then set out in full in the notice of motion. As a result of the alleged misrepresentation as to rights of way by the defendant, plaintiff claims that he was induced to purchase the Firmstone tract; that by reason thereof he lost 3,800 cords of chestnut oak bark, 10,000 cords of chestnut wood, and was put to the expense of instituting proceedings to rescind the contract and enforce his lien.\\nAs heretofore stated, after the jury had returned a verdict for the plaintiffs for $10,000, the court set it aside and (holding that the matters at issue in the instant action had been adjudicated in the suit for rescission of the contract) entered judgment for the defendant.\\nWhether the trial court was right in its' conclusion it is not necessary, in our opinion, to decide, and we express no opinion as to its action, because clearly, we think, the one year statute of limitation applies in a case such as we have under review.\\nIt is conceded by plaintiff's counsel that if the one year limitation applies the present action was instituted too late, but counsel does contend that while defendant took exception to the action of the trial court in excluding the plea of the statute of limitation for the one year period, and tendered to, and had the judge sign, a bill of exceptions making the plea and the court's action thereon a part of the record in the case, yet this court cannot consider the question because no cross-error has been assigned by petition in this court. There is no merit in this contention. The statute of limitations was properly pleaded; the effect of the trial court's action was to reject the plea; and the exception to the.court's action and the bill of exceptions duly signed by the judge bring into the record and before this court for consideration the question of the applicability of the statute to the case and the correctness of the trial court's action thereon.\\nThe question of the applicability of the statute to the case at bar involves a consideration of sections 5818 and 5385 of the Code of 1919.\\nSection 5818 declares: \\\"Every personal action, for which no limitation is otherwise prescribed, shall be brought within five years next after the right to bring the same shall have accrued, if it be for a matter of such nature that in case a party die it can be brought by or against his representative; and, if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued.\\\"\\nIf the action we are here considering is one involving a matter of such a nature that, in case of the death of a party, the right of action would survive to his personal representative, then the five year period of limitation applies; if it is not of such a nature, then the one year period applies.\\nThe answer to this question is found in section 5385 of the Code, which declares: \\\"An action of trespass, or trespass on the case, may be maintained by or against a personal representative for the taking or carrying away any goods, or for the waste or destruction of, or damage to, any estate of or by his decedent.\\\"\\nThe answer, however, is not sufficiently clear to avoid the necessity for construction of this latter section.\\nThe statute declares that the right of action survives for the taking or carrying away of any goods, or for the waste or destruction of, or damage to, any estate of or by his decedent. It will be well to recall here that the instant case is one on which the'defendant is charged, through fraud and misrepresentation, with inducing the plaintiff to enter into a contract for the purchase jointly with defendant of a large tract of land, and that the alleged damages suffered by plaintiff resulted from these misrepresentations which resulted in the loss of the use of his property, 3,800 cords of bark, etc.\\nThe case of Mumpower v. Bristol, 94 Va. 737, 27 S. E. 581, was an action of trespass on the ease for maliciously, and without probable cause, suing out an injunction and thereby causing the plaintiff to lose the use of his mill and the profits therefrom for nearly two years. The action was instituted two years after the commission of the alleged wrong. The statute of limitations (one year) was pleaded. The court, in passing upon the question raised by the plea, said: \\\"The wrongful act which the defendant is alleged to have committed and for the injury resulting from which the plaintiff sues, consisted in maliciously, and without probable cause, suing out an injunction against the plaintiff whereby the operation of his mill was suspended. It is quite obvious that this injunction did not operate to take away the goods of the plaintiff, or cause the waste or destruction of, or inflict any damage upon, the estate of the plaintiff. It is true that the language of the statute is comprehensive and embraces damages of every kind of degree to the estate, real or personal, to the person aggrieved, but the damage must be direct and not the consequential injury or loss to the estate which flows from a wrongful act directly affeeting the person only. No part of the defendant's property was taken or carried away, no part of it was wasted or destroyed; the plaintiff's nse of his property and not the property itself was affected by the act of which he complains. We are of the opinion that such a right of action did not survive, and that it is barred by the limitation of one year.\\\"\\nThis case is not distinguishable from the ease at bar. Here, as in the case quoted from, the alleged misrepresentation as to rights of way did not operate to take away the goods of the plaintiffs or cause Avaste or destruction of, or inflict any damage upon, the estate of the plaintiffs. The damage is not direct, but if there was any injury, it was the consequential injury or loss to the estate which flowed from a wrongful act directly affecting the person only. The plaintiff's use of the property and not the property itself was affected by the act of which he complains. The conduct of Critcher in failing to procure the rights of way, if proven to have been wilful, only prevented Cover from using his property and exercising the right which he claimed to have, and did not directly injure the property itself, just as in the Mumpower Case the alleged malicious conduct of the city of Bristol simply prevented Mumpower from using his property, and did not injure the property itself.\\nSee also Henshaw v. Miller, 17 Howard (U. S.) 212, 15 L. Ed. 222, in which the United States Supreme Court, construing this section of the Virginia Code,after holding that it does not cover torts generally, says: \\\"And much less can it be made to cover an indirect and consequential injury to the welfare or property of decedent resulting from fraud practiced upon him.\\\"\\nThe statute has been added to since the decision in the Henshaw v. Miller Case, but the addition does not affect the holding so far as the instant case is concerned. See 3 Rob. New Pr., p. 292, et seq. See also Read v. Hatch, 19 Pick. (Mass.) 47; Lee v. Hill, 87 Va. 497, 12 S. E. 1052, 24 Am. St. Rep. 666.\\nFor the foregoing reasons we are of opinion that the plea of the statute of limitations should have been sustained and the action dismissed.\\nThe effect of this holding is to affirm the judgment of the trial court.\\nAffirmed.\"}"

va/1868943.json

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+"{\"id\": \"1868943\", \"name\": \"Morris v. Deane & Others\", \"name_abbreviation\": \"Morris v. Deane\", \"decision_date\": \"1897-04-15\", \"docket_number\": \"\", \"first_page\": \"572\", \"last_page\": \"574\", \"citations\": \"94 Va. 572\", \"volume\": \"94\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T19:02:30.189668+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Morris v. Deane & Others.\", \"head_matter\": \"Richmond\\nMorris v. Deane & Others.\\nApril 15, 1897.\\n1. Appellate Proceedings \\u2014 Error to the county court \\u2014 Bill of exceptions.\\u2014 Where a case is taken from a county court to a circuit court on a writ of error, it is unnecessary to take any bill of exceptions to the action of the circuit court. As that court hears the case on the record, if there be error in its rulings, the record will disclose it.\\n2. Unlawful Detainer \\u2014 Declarations in the judgment as to title. \\u2014 The only matter in issue in an action of unlawful detainer being the right of possession, the declaration by the county court in its judgment that the defendant had the fee-simple title to the land cannot prejudice the rights of the parties in any proceeding involving the title.\\nError to a judgment of the Circuit Court of Greene county, rendered November 11, 1893, reversing the judgment of the County Court of said county, pronounced in an action of unlawful detainer wherein the defendants in error were the plaintiffs, and the plaintiff in error was the defendant.\\nReversed.\\nUpon the trial in the County Court all matters of law and fact were submitted to the court which rendered judgment for the defendant. To the opinion and judgment of the court the plaintiffs excepted, and spread all of the evidence on the record by a proper bill of exceptions for that purpose. A writ of error was thereupon sued out from the Circuit Court for Greene county, which heard the case on the record made in the County Court, and reversed the judgment of that court. To the judgment of the Circuit Court this writ of error was awarded.\\nJohn E. Roller, for the plaintiff in error.\\nBeverly T. Crump and R. S. Thomas, for the defendants in error.\", \"word_count\": \"615\", \"char_count\": \"3475\", \"text\": \"Harrison, J.,\\ndelivered the opinion of the court.\\nThis action of unlawful detainer was tried in the County Court, all matters of law and fact being submitted to the court for its judgment, and, on a regular bill of exceptions embodying the evidence, was taken by writ of error to the Circuit Court, and from that court brought by writ of error to this.\\nThe court is of opinion that the contention of the defendant in error, here, that the case should be dismissed because no exception was taken to the judgment of the Circuit Court is not tenable. There was no necessity for a bill of exceptions to the judgment of the Circuit Court. That court reviewed the judgment of the County Court on writ of error, and could look at nothing except the record of the County Court brought up on the writ, and if the Circuit Court erred in its judgment, the error appears by the record of that court without any bill of exceptions.\\nThe court is further of opinion that the plaintiffs in the County Court wholly failed to show that they were entitled to the possession of the land in controversy, and therefore that court did not err in giving judgment in favor of the defendant. The only matter in issue, however, was the right of possession, and therefore the declaration by the County Court in its judgment that the defendant held the fee-simple title, cannot prejudice the rights of the parties in any proceeding involving the title to said land.\\nThe court is further of opinion that the Circuit Court erred in reversing the judgment of the County Court, and in giving judgment for the plaintiffs.\\nFor the foregoing reasons, the judgment of the Circuit Court must be reversed and set aside, and this court will enter such judgment as said Circuit Court should have entered.\\nReversed.\"}"

va/1879077.json

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+"{\"id\": \"1879077\", \"name\": \"Blanton v. Richmond, F. & P. Railroad Co.; Richmond, F. & P. Railroad Co. v. Blanton\", \"name_abbreviation\": \"Blanton v. Richmond, F. & P. Railroad\", \"decision_date\": \"1890-02-20\", \"docket_number\": \"\", \"first_page\": \"618\", \"last_page\": \"624\", \"citations\": \"86 Va. 618\", \"volume\": \"86\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:49:59.698373+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Blanton v. Richmond, F. & P. Railroad Co. Richmond, F. & P. Railroad Co. v. Blanton.\", \"head_matter\": \"Richmond.\\nBlanton v. Richmond, F. & P. Railroad Co. Richmond, F. & P. Railroad Co. v. Blanton.\\nFebruary 20th, 1890.\\n1. Railroad companies\\u2014Lateral branches.\\u2014Where by its charter, power is given railroad company to construct branch or lateral roads, such power includes authority to construct a branch line running in the same general direction as the main line; and the fact that the new line will . connect the main line with another railroad, makes it none the less a branch road.\\n2. Idem\\u2014Time of completion\\u2014Case at bar.\\u2014Section 34, charter R, F. & P. R. R. Co., requiring work thereby required of said company to be finished in ten years, refers to building the main track, for doing which within that period the company is promised, by sec. 38, immunity from competition for thirty years.\\n3. Idem \\u2014Section 1098, Code 1887, to promote railroad connections in cities, etc., is not applicable to the case at bar.\\nAppeal from decree and error to judgment of circuit court of Henrico county rendered Hovember 11 and 22,1889, respectively, in two cases, in the first whereof T. L. Blanton (the appellant here) was complainant, and the Richmond, Fredericksburg & Potomac railroad company was defendant; and in the last the said company (plaintiff in error here) was plaintiff and said Blanton was defendant.\\nOpinion states the case.\\nW. C. Preston, Leake & Garter, W. W. Gordon, and Meredith & Cocke, for the railroad company.\\nPollard & Sands, Courtney & Patterson, Staples & Munford, and Bradley T. Johnson, for T. L. Blanton.\", \"word_count\": \"2143\", \"char_count\": \"12306\", \"text\": \"Hinton, J.,\\ndelivered the opinion of the court.\\nThe above-entitled cases were heard and may be considered together. The first-mentioned case is an appeal from an order which restrained the Richmond, Fredericksburg and Potomac railroad company from further proceedings to condemn the land of T. L. Blanton, opon the line of road proposed to be constructed by said company to connect its main line with the Richmond and Petersburg railroad company. The second case is a writ of error to the judgment of the circuit court of Henrico, reversing the judgment of the county court in tlm condemnation proceedings, and dismissing the same. The great question in both cases, is whether the company has the power under its charter to build this branch or connecting road; and to this question, although there are one or two subjects of minor importance to be also considered, we will at once address ourselves.\\nThe seventh section of this charter, omitting the first proviso, reads as follows: \\\"The president and directors of the\\\" said company shall be, and they are hereby, invested with all the rights and powers necessary for the construction, repair, and maintaining of a railroad, to be located as aforesaid, with as many sets of tracks as they, or a majority of them, may deem necessary, and may cause to be made; and also to make and construct all works whatsoever which may be necessary and expedient in order to the proper completion of the said railroad; and they, or a majority of them, may make, or cause to be made, branches or lateral railroads, in any direction whatsoever, in connection with the said railroad, not exceeding ten. miles each in length; and shall have, possess, and may exercise, in the construction, use, and repair of the same, the same rights and powers, and shall be entitled, on the completion of any branch or lateral railroad, to the same rights} privileges, and immunities, and be subject to the same pains, penalties, and obligations in relation to the same, as are hereby prescribed in relation to their principal line of railroad; and provided, moreover, that no branch or lateral railroad exceeding two miles in length shall be commenced until the expediency of making the same shall have been determined on at a general meeting of the stockholders, by two-thirds of the votes which could be legally given in favor of the same.\\\" Then follow ample provisions for the condemnation and acquisition of all laud that may be needed for the main road and its branches.\\nISTow, here, it must be conceded, is as broad and unrestricted a grant of power to build branch or lateral railroads as could well have been devised, for the language is not merely that the company may build \\\"several branches\\\" or \\\"several branches in different directions,\\\" but the language is that the president and directors, or a majority of them, may make, or cause to be made, \\\"branches or lateral railroads\\\" (that is, an indefinite number of branch or lateral roads) in \\\" any \\\" (that is, in every) '\\\" direction whatsoever,\\\" thus placing it entirely within the 'power of the president and directors, where the branch or lateral roads are not more than two miles in length, and where the roads are of greater length within the power of the president and board of directors and two-thirds of the legal voters at any general meeting of stockholders, to say how many and in what directions branch or lateral roads shall be run. The only inquiry which would seem to be left open, then, is whether the contemplated road falls fairly within the designation of a branch or lateral railroad, or is excluded from this category by reason of the fact that it connects with another road. What is a lateral or branch road? The word \\\"lateral,\\\" \\u2022according to Webster, means, \\\"proceeding from the side; as, the lateral branches of a tree; lateral shoots; \\\" and this, we take it, is the sense in which this word is to be understood when we speak of branch or lateral railroads. A lateral railroad is nothing more nor less than an offshoot from the main line or stem. And this is the meaning attributed to it by the supreme court of Pennsylvania in the case of McAboy's Appeal, 107 Pa. St., 558. And, indeed, some of the cases go further, and hold that under the branching power, a branch road may be constructed from the terminus as well as from any other point on the main line of the road. Western Pa. R. R. Co.'s Appeal, 99 Pa. St., 162; Mayor v. Railroad Co., 48 Pa. St., 358; Howard Co. v. Bank, 108 U. S., 314. In this last cited case the supreme court of the United States says: \\\" The argument is that the main road of the company was established on a line south of the Pacific railroad; that Howard county could not, by subscription, aid in construction of the main line, and could not, by subscription, aid in the construction of a road from the junction of the main line northeasterly through that county, because such road would not be a branch road, but only an unauthorized extension of the main line. We are of opinion that the road constructed through Howard county was, within the meaning of the statute, a branch of the original or main line.\\\" This, however, is going much further than it is necessary for us to go in this case, and we shall therefore refrain'' from any expression of opinion upon the point. It seems to us, however, perfectly clear that we should hold, in accordance with the unbroken current of decision, as well as upon principle, that the mere fact that the contemplated road runs in the same general direction with the main track will not deprive it of the character of a branch or lateral road. A. & P. Railroad, Co. v. St. Louis, 66 Mo., 255; Volmer's Appeal, 115 Pa. St., 166; 1 Wood, Ry. Law, 544.\\nBut does the fact that the Richmond, Fredericksburg & Potomac railroad company was intended to be connected with the Richmond & Petersburg railroad by means of that branch, deprive it of its character as a branch road, and deprive the company of the right to construct it? It is earnestly insisted for Blanton that it does, and for two reasons\\u2014/\\u00edVs\\u00bf, because it will 'operate to change the southern terminus of the Richmond, Fredericksburg & Potomac railroad company from Richmond, where it is fixed by the charterand, second, because the company had no power under section 1098 of the Code of 1887 to build the proposed branch until it had been refused permission by the city of Richmond to pass through its limits for the purpose. But both of these views are based upon patent misconceptions, one of fact and the other of law. The company has no purpose of changing its terminus at Richmond. Indeed, the charter requires that one of the termini of the road shall be at Richmond, and it could not, therefore, change it if it would. But in point of fact, as the record shows, this is not its object. It simply proposes to build this branch for the purpose of carrying through business outside of the limits of the city, leaving the passengers and freight destined for Richmond to be delivered there. The supposition that section 1098 of the Code of 1887 has anything to do with this case is equally fallacious. The object of that- section, as the title to the original act (see Acts 1855-'56,p. 82, ch. 98) says in so many words, \\\" was to promote railroad connections in cities and in incorporated towns,\\\" and to give to railroad companies the right to connect outside of the limits of the city or town where they were refused the power to connect within such towns or cities. It was never designed to deprive these companies of any power to connect they might derive from their charters. Upon what principle, then, can we hold that because of the mere circumstance that this branch road connects those two railroads that it ceases to be a branch or lateral road, and is not authorized by the charter? We know of none. It may be that this light to make of a branch road a connecting link between two roads may have been one of the unforeseen results of the grant of power. But, as it does not change the termiuus, serves as a feeder to the main stem, assists the company to develop the country through which it passes, and tends to promote the public convenience both as to trade and travel, it cannot be regarded as obnoxious to any of the objections that have been urged against it. Mayor v. Pa. Railroad Co., 48 Pa. St., 355, and other eases cited supra.\\nBut, while it has heen deemed more satisfactory to discuss this question somewhat on principle, yet we hardly think that it can be regarded as an open question in this state; for in the case of Baltimore & Ohio Railroad Co. v. City of Wheeling, 13 Gratt., 42, decided as far back as 1856, this court settled the principles involved in such a question, and held, in express terms, that the Baltimore & Ohio railroad company had, under the power to build branch or lateral roads, the right to build a branch from Benwood, a point three or more miles from Wheeling, to connect with the Central Ohio road. That case must be regarded as decisive of this. The power to build roads like the one in question, being given in plain and unambiguous words, cannot be emasculated by this court by construction, merely because the framers of the law may not have contemplated that such a branch or lateral road might be made to connect the road of which it is an offshoot with some other road. But it is said that, conceding all this to be true, yet that the right granted by the seventh section of the company's charter to build branch lines is limited by the thirty-fourth section of that charter, which requires \\\"the works hereby required of the Richmond, Fredericksburg & Potomac railroad company\\\" should be \\\" finished within ten years.\\\" This, however, proceeds upon a misapprehension of the meaning of the words \\\"work required\\\" of the company. Manifestly, the works which were required of this company were the building and equipping of the main stem or track from Richmond to Fredericksburg, as may be seen from a glance at the thirty-eighth section of the charter, by which section the company is promised immunity from competition for thirty years, in the event of the completion of the said railroad from' the city of Richmond to the town of Fredericksburg within the time limited by this act. The right to build these branch or lateral roads was necessarily and properly left optional with the company, to be exercised as and when the exigencies rendering them necessary should arise. These views are decisive of these cases. It follows that the order of the circuit court in the second of the above-styled cases must be reversed, and the order of the county court be affirmed, and that the order of the circuit court in the first case must he affirmed.\\nReversed in part and aeeirmed in part.\"}"

va/1879113.json

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+"{\"id\": \"1879113\", \"name\": \"Western Union Telegraph Co. v. Williams\", \"name_abbreviation\": \"Western Union Telegraph Co. v. Williams\", \"decision_date\": \"1890-03-27\", \"docket_number\": \"\", \"first_page\": \"696\", \"last_page\": \"720\", \"citations\": \"86 Va. 696\", \"volume\": \"86\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:49:59.698373+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Western Union Telegraph Co. v. Williams.\", \"head_matter\": \"Richmond.\\nWestern Union Telegraph Co. v. Williams.\\nMarch 27th, 1890.\\n1. Constitution\\u2014Hlghvags\\u2014Telegraphs.\\u2014Condemnation of land for public highway gives only right of passage over it. The absolute property in the land remains in owner. Erection of telegraph poles and wires constitutes an additional servitude on the land. Act February 10,1880 (Code, secs. \\u00cd287-1290), authorizing construction of telegraph lines along any public road, if the use of the highway be not obstructed, without providing any compensation to the land owners, violates the constitutional intention when taking private property for public use without compensation.\\n2. Corporation\\u2014Xon-resident\\u2014Process.\\u2014There is no error in serving prey cess against a non-resident corporation on an agent thereof resident in the county wherein suit is brought.\\nError to judgment of circuit court of UewKont county, rendered October 30, 1888, in an action of trespass on the case wherein James U. Williams was plaintiff, and the plaintiff in error, the Western Union Telegraph company, ivas defendant.\\nOpinion states the case.\\nStaples & Manford and Robert Stiles, for the plaintiff in error.\\nPollard & Sands, R. T. Lacy, and W W. Gordon, for the defendant in error.\", \"word_count\": \"8819\", \"char_count\": \"49931\", \"text\": \"Lacy, J.,\\ndelivered the opinion of the eonrt.\\nThis is a writ of error to a judgment of the circuit court of New Kent county,' rendered on the 30th day of October, 1888. The plaintiff in error constructed its telegraph line upon the county road in New Kent county, where the said road ran over the lands of the defendant in error without his consent and without condemnation proceedings, and without tendering compensation, and refusing' to pay compensation therefor. As is alleged in the declaration \\\" against the will, of the plaintiff, .and violently against the protest of the plaintiff, entered upon the said lands and cut down and destroyed the trees and under-wood\\u2014fifty pine trees, twenty oak trees, and other trees of the value of $1,950 - and broke down and prostrated a great part of the fences of the said plaintiff, and dug holes in the land of the plaintiff, and put posts there and kept the same there, &c., and encumbered the lands and hindered the plaintiff in the free use and enjoyment thereof.\\\" The defendant pleaded not guilty, and moved the court to remove the case to the, federal court, which motion to remove the. case the court overruled, and the case proceeded to a trial; and upon the trial the jury rendered a verdict in favor of the plaintiff for the sum of $550, upon which judgment was rendered, accordingly. Whereupon the defendant, the plaintiff in error here, applied for and obtained a writ of error to this court.\\nThere were sundry exceptions taken at the'trial, which were assigned as error here. The first assignment which we will consider, is as to the refusal of the court to give to the jury certain instructions asked by the defendant, and the giving by the court of certain other instructions. The plaintiff\\\" moved the. court to instruct the jury to the following effect: That \\\"if the jury believe from the evidence that the defendant was at the time of the committing of the alleged trespass, in the declaration mentioned, and still is a telegraph company chartered by this or any other state, and that the road along which it has constructed, and maintained, and still is maintaining its telegraph line in the county of New Kent, was at said time and still is a county road, then the said defendant had, at said time, and still has the right to construct and maintain its said line along said county road, upon any part thereof, to the width or extent of thirty feet (whether the road-bed actually used by the public was and is of such width or not), provided the ordinary use of said road be uot thereby obstructed, and said defendant had at said time, and still has, the right to cut down and trim out such trees or limbs within such width or extent of thirty feet as might interfere with the proper and effective construction, maintenance, and operation of its said line. (2) Tor the exercise of such right as aforesaid the defendant is not required to obtain permission from, or to make compensation to, the owner or owners of the land upon which said road is located (whether the fee-simple title to the soil upon which the road is located, or the mere easement thereon, be vested in the public). (8) The jury are further instructed that, although the road-bed of sajd road actually used by the public may not he or have been of the width of thirty feet, and although the overseer of said road may not have compiled with the law, in keeping said road clear and smooth and free from obstructions to the legally required width of thirty feet) yet, under the laws and statutes of the commonwealth, the defendant eompany was authorized to use any part of said legal road of thirty feet to the same extent as if said overseer had strictly complied with the provisions of law requiring him to keep said road clear of timber and other obstructions to the required width, and the whole thirty feet been actually used by the public as a road.\\\"\\nBut the court refused to give these instructions of the defendant, and gave the following: (1) The court instructs the jury that the law presumes that the ownership of lands along-the side of a public road in Virginia extends to the middle of said road, and the burthen of proof is upon the party who claims otherwise to show that such is not the case along the road when the right is controverted, and the owner has the exclusive right to the soil, subject to its use for the purposes of the public, and to the right of passage of the public over the same, and being owners of the soil they have a right to all of the ordinary remedies for disturbing of, or injury to their freehold or possession, and any act of the legislature which divests such owners of their rights is unconstitutional and void. (2) The fact that a road is a public road, or highway, does not authorize the digging of holes for the purpose of erecting telegraph posts, and the erecting of posts, and the establishing a telegraph line over the land of a person without his consent, although the same may be erected or done on that part of his premises which is used as a public road.\\\" Tt thus appears that the claim of the defendant is that by reason of the act of assembly of February 10th, 1880 (Acts 1879-80, p. 53-54), it was authorized to construct its telegraph poles and lines along the lands over which the county road runs without making compensation therefor, and that it maintains its right to exercise as-to these lands the right of eminent domain therein, take and enjoy what belongs to another, in the exercise of the sovereign power, not only without making any compensation therefor, but without any formal proceedings looking to condemnation of this property under any of the forms of law whatever.\\nIf it is once conceded, or anywise established, that the land in question belonged to the plaintiff, it was his private property, his freehold, as entirely his own throughout all its parts, as the shelter which he had erected, around and over his hearthstone for his habitation and home, and as entirely under the protection of the laws, against, the intrusion as the very hearthstone itself. That these lands are the lands of the plaintiff unless he has lost them by the creation of a public road across them, is undeniable, is indeed not denied. Does the creation of a public road through the lands, divest, him of the fee in the same ?\\nAs to the extent, of the right acquired by the public upon opening a highway in Virginia, Mr. Minor in his Institutes. (vol. 1, p. 120,) says : \\\" The public acquires merely a right of passage, the freehold, and all the profits of the soil', (that is trees, mines, &e.,) belong still to the proprietor from whom the right of passage was acquired, he may therefore recover the freehold in ejectment subject, to the right of way, and may maintain an action of trespass for digging the ground. If it be unknowu from which of two adjacent proprietors a'highway was at first taken, or if the highway' be the boundary between them, they are understood to own, each ad medium filian viee.\\\" Citing Bac. Abr. Highways, (b); Bolling v. Mayor of Petersburg, &c., 3 Rand., 563; Home v. Richards, 4th Call, 441; Harris v. Elliott, 10th Pet., 25. And this subject is again referred to by Mr. Minor in his second volume, p. 20, as to the ownership of land adjacent, to highways, when he says: \\\" The ownership usually extends to the middle of the road, as in the case of a private stream; or, if the same party owns on both sides, the whole road belongs to him, subject to the public easement of the right of passage in either case.\\\" Citing 3 Kent, Comm., 432. In the case of Home v. Richards, supra, all the judges delivered opinions, and all held that the grant of a right of -way does not convey the soil, but only the right to. a way over. In the case of Bolling v. Mayor of Petersburg, supra, a case fully and ably argued in this court by the foremost lawyers of that day, Judge Carr delivered the unanimous opinion of the court. Speaking as to the public highway, he. said: \\\" Does this disable the demandant from recovering the land? It certainty would not, in England, as mauy cases shown\\\" Citing Lade v. Shepherd, 2 Strange, 1004. In that case the defendant rested one end of a bridge upon the highway. Upon trespass brought, the court, said: \\\" It is certainty a dedication to the public, so far as the public has occasion for it, which is only for a right of passage; but it. never was understood to transfer the absolute property in the soil.\\\" In Goodtitle v. Alker, 1 Burr, 143, in ejectment, a special verdict finding that the land was a public street, and public highway, Lord Mansfield says: 1 Kollo, Abr., 392, is express, that the king has nothing hut the passage for himself and his people, but the freehold, and all the profits, belong to the owner of thej; soil. So do all the trees upon it, and mines under it. Thejowner may get his soil discharged of this servitude or ease-' ment of a way over it. by a writ of ad quod damnum. It. is like the property in a market or fair. There is no reason why he should not have a right to all remedies for the freehold, subject still, indeed, to the servitude or easement. An action of trespass would lie for an injury done to it. I see no reason why the owner may not bring ejectment as well as trespass.\\\" 1 Wills., 107 ; 6 East, 154. But it is said that in this country we act- on a more liberal scale; that the court will look to the great principles of public policy, and give them effect; that the conveniences of the community requiring highways, they must be had; and, as a mere right- of way is not. sufficient for the full enjoyment of them, we must consider the commonwealth as vested with a base fee in all public highways.\\nOur business is with the law as it is; and where the power to be exercised is one of so important a character as the taking away the property of the citizen, divesting him of his eminent domain in the soil, I could not consent to take the step unless I saw myself justified by some clear principle of the common law or some plain enactment- of the statute. The English cases are pretty strong evidence that the common law confers no such power. I have looked into our statutes, and I can find nothing there to countenance the idea that where a road is established, the fee in the soil, either simple or base, is vested in the commonwealth. On the contrary, I think it is obvious that a right of way is all that the public requires, leaving the whole fee in the owner of the soil. It is for this use of the! land by the commonwealth that the owner is compensated-! There can be no question as to what the law is in this state, it is well .settled. In Warwick v. Mayo, 15 Gratt., 528, Judge Allen delivered the unanimous opinion of this court to the same effect. Speaking of a highway, he says, \\\" The easement comprehends no interest in the soil,\\\" and cites Judge Swift'as saying, in Peck v. Smith, 1 Conn. R., 103 : \\\"The right of freehold is not touched by establishing a highway, but continues in the original owner of the land in the same manner as it was before the highway was established, subject to the easement.\\\" He says, further : \\\"Notwithstanding the easement, the owner retains many and valuable interests. He may make any use of it not in consistent with the enjoyment of the casement.\\\" Hare & Wallace's notes to Dovaston v. Payne, 2 Smith's Leading Cases, 90, where the authorities are collected. After speaking of the English rule and the decisions of some of the states, he says: \\\" In Virginia the rule has been established by an authoritative decision upon the very point in accordance with the doctrine of the English courts,\\\" and refers to Bolling v. Mayor of Petersburg, supra. If these principles are thus settled in Virginia, as they certainly are, they are equally as firmly imbedded in the jurisprudence of numerous other states of this country. These are collected and cited by Mr. Angel in his work on Highways, p. 396, see. 301, et seq. and notes. At page 398, sec. 303, this author says : \\\" The principles of the common law, in this respect, have been recognized and adopted by the American courts,\\\" citing Perley v. Chandler, 6 Mass., 454. Under these principles, the plaintiff was entitled to maintain trespass against the defendant, when the said defendant stopped upon his land, instead of passing along, and dug up his soil, and cut down his trees, and tore down and scattered his fence, unless such taking of his property was by due process of law for public uses, upon just compensation. If .the use for which the land was taken was a private use, it could not be lawfully taken without his consent. But the use may be conceded to be a public use, and yet to take without just compensation, was unlawful; such taking, without authority of law, was a trespass\\u2014and such taking could find no justification in any act of the general assembly. (Art. 5, sec. 14, Const. of Va.) It is claimed that the act of assembly, passed February 10, 1880, (Acts 1879-80,) authorized this company to so construct its works upon the land of the plaintiff. That act should receive a reasonable construction, and he so construed, if possible, as to avoid repugnance to the constitution. And while by that act these companies are authorized to construct their lines and fixtures along the county roads, provided the ordinary use of the road was not obstructed, it is not I expressly provided that this may he done without compensa- f tion; hut the provision is so as not to obstruct, the ordinary use. The commonwealth had and has in these roads nothing) hut the irse\\u2014to pass over aud along; and the act provides that/ this use shall not be obstructed by virtue of that act. But at the conclusion of this paragraph, constituting the last words in it, are these words, \\\"upon making just compensation therefor;\\\" and then follow the provisions of the law, which provide for the proceedings necessary to ascertain what is just, compensation by condemnation proceedings. This was certainly the provision of the act as to lands of persons generally, and if the laud upon which the highway runs is the private property of the citizen, which it clearly is, should not this language be held to apply to such land as well as to others? Why not? The commonwealth has no more power to grant the one than the other. To grant either is to take private property, and this can only he done upon just compensation. If this is the true construction of this act, the same is in accordance with the constitution of the state; and the plaintiff ivas entitled to maintain his suit against a corporation which ueither took lawfully nor paid a just, compensation. But if the act does provide for the taking of this private property without compensation, then it. is void for repugnancy to the constitution of the state, and the plaintiff was entitled to recover, and the instruction of the court was right.\\nHowever, it is claimed by the plaintiff in error that, granting that the rights of the plaintiff are ivhat we have stated, and the commonwealth has only the right to use by going over, \\\\|still his ease is good, because his works are only a use of the Ijeasement and constitutes no new taking\\u2014no additional servitude. We will now briefly consider this argument.\\nThe right in the commonwealth is to use by going along-over; this is the extent of the right. If the right was granted to the defendant to go over simply to carry its messages, then the right granted was in existence before the grant, and the-right to go over is not only not disputed, but distinctly admitted. This is the servitude over the land fixed upon it by law, and the whole extent of it. If anything more is taken it is an additional servitude, and is a taking of the property within the meaning of the constitution. To take the whole subject, the land in fee, is a taking. This, however, is the meaning of the term only in a limited sense, and in the narrowest sense of the word. The constitutional provision, which declares that property shall not be taken for public use without just compensation, was intended to establish this principle beyond legislative control, and it is not necessary that property should be absolutely taken, in the sense of completely taking, to bring a case within the protection of the constitution. As was said by a learned justice of the supreme court of the United States : \\\" It would be a curious and unsatisfactory result if in construing a provision of constitutional law, always understood to ' have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely; can inflict irreparable and permanent injury to any extent; can, in effect, subject it to- total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law instead of the government, and make it an authority for invasion of private rights under the pretext of the public good, which had no warrant in the law and practice of our ancestors.\\\" Justice Miller in Pumpelly v. Green Bay Company, 13 Wall., 166.\\nTt is obvious, and it is so held in many cases, that the con-, struction of a railroad upon a highway is an additional' servitude upon the land, for which the owner is entitled to additional compensation. Cooley's Constitutional Limitations, 548; Ford v. Chicago and Northwestern R. R. Co , 14 Wis., 616; Pomeroy v. Chicago & M. R. R. Co., 10 Wis., 640. And the \\u2022power of the legislature to authorize a railroad to be constructed on a common highway is denied, upon the ground that the original appropriation permitted the taking for the purposes of a common highway and no other. The principle is the same when the land is taken for any other purpose distinct from the original purpose, and the reasoning in the two cases is applicable to each. In the case of Imlay v. Union Branch R. R. Co., 26 Conn., 255, it is said: \\\" When land is condemned for a special purpose, on the score of public utility, the sequestration is limited to that particular use. Land taken for a highway is not thereby converted into a common. As the property is not taken, but the use only, the right of the public is limited to the use, the specific use, for which the proprietor has been divested of a complete dominion over his owii estate. These are propositions which are no longer open to discussion.\\\" Nicholson v. N. Y. & N. H. R. R. Co., 22 Conn., 85; South Carolina R. R. Co. v. Steiner, 44 Ga., 546. In the case of a telephone company the chancellor, in the case of Broome v. New York New Jersey Telephone Co. (5th Central Rep., 814), held that, in order to justify a telephone company in setting up poles in the highway it must show that it has acquired the right to do so, either by consent or condemnation from the owner of the soil, saying: \\\" The complainant seeks relief against an invasion of his proprietary right to his land. The defendant, a telephone company', without any leave or license from or consent by him, but, on the other hand, against his protest and remonstrance, and in disregard of his warning and express prohibition, and without condemnation or any steps to that end, set up its poles upon his land.\\\" What has been said is sufficient of itself to establish the right of the complainants to relief: for in order to justify the defendant in setting up the poles, it is necessary for it to show that it has acquired the right to do so, either by consent or condemnation from the owner of the soil. As to these rights of the owner of the soil see American and English Encyclopaedia of Law, vol. 9, title \\\"Highways,\\\" vii., sec. 2; Board of Trade Tel. Co. v. Barnett, 107 Ill., 508; Southwestern R. R. Co. v. Southern & A. Tel. Co., 46 Ga., 43; Western Union Tel. Co. v. Rich, 19 Kansas, 517; Willis v. Erie Tel. & Co., 34 N. W. Rep., 337.\\nIS That the erection of a telegraph line upon a highway is an I''additional servitude is clear from the authorities. That it is such is equally clear upon principle in the light of the Virginia cases cited above. If the right acquired by the commonwealth in the condemnation of a highway is only the right to pass along over the highway7 for the public, then, if the untaken parts of the land are his private property, to dig up the soil, is to dig up his soil; to cut down the trees, is to cut down his trees; to destroy the fences, is to destroy his fences; to erect any7 structure, to affix any pole or post in and upon his land, is to take possession of his land; and all these interfere with his free and unrestricted use of his property. If the commouV] wealth took this without just compensation it would be a s violation of the constitution. The commonwealth cannot constitutionally7 grant it to another.\\nIt is true that the use of the telegraph company is a public use; that company is a public corporation, as to which the public has rights which the law will enforce. But these pub- lie rights can only be obtained by paying for them. The use, while in one sense public, it is not for the public generally ; it is for the private profit of the corporation. It is its business enterprise, engaged in for gain. Its services can only be obtained upon their being paid for. There is no reason either1'; in law or common justice why it should not pay for what itp needs in the prosecution of its business. Upon this burden being placed upon it, it can complain of no hardship; it is the common lot of all. If the said company has use for the private property of a citizen of this commonwealth, and it is of advantage to it to have the same, it is illogical to argue that the property is of small value to the plaintiff, and in the aggregate a great matter to the plaintiff in error. This argument is not worth considering; it cuts at the very root of the rights of property. It would apply with equal force to all the transactions of life. It is sufficient to say the Eegis of the constitution is over this as over all other private property rights, and there is no power which can divest it without j ust compensation.\\nWe think the instructions of the circuit court were clearly right, and there is no error therein.\\nThere is no error iu the process in the case. It was made as provided by law against a non-resident corporation having no officer or agent resident in the county.\\nThere was no error in the refusal of the court to remove the case from Kew Kent county. Hot the slightest ground is shown for it. And it may be remarked that the plaintiff in error selected its forum when it thus unlawfully invaded the property rights of one of the citizens of that county.\\nAs to the contention concerning the summoning of the jury by the sheriff, because he was interested in the suit, there is ho error in that action of the court below : (1) Because the sheriff does not appear to be in any way interested in the suit, and (2) because the sheriff did not in fact select the jury. Upon ohjec tion made, the judge made out the list and gave it to the deputy sheriff to summon the required venire.\\nUpon the whole ease, we are of opinion that there is no error in the judgment appealed from, and the same must be affirmed.\"}"

va/1879158.json

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+"{\"id\": \"1879158\", \"name\": \"Johns v. Johns\", \"name_abbreviation\": \"Johns v. Johns\", \"decision_date\": \"1889-09-26\", \"docket_number\": \"\", \"first_page\": \"333\", \"last_page\": \"336\", \"citations\": \"86 Va. 333\", \"volume\": \"86\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:49:59.698373+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Johns v. Johns.\", \"head_matter\": \"Staunton.\\nJohns v. Johns.\\nSeptember 26th, 1889.\\nWills \\u2014Construction\\u2014Case at bar.\\u2014Testator gave all his funds to his wife during her natural life, for the benefit of herself -and her children, \\u201c to be used as she may think proper: held, wife takes only a life estate, remainder to her children free from her debts.\\nAppeal from decree of circuit court of Augusta county, rendered June 6, 1887, in tlie chancery cause under the style of A. J. Johns\\u2019 administrator, against Rebecca Johns\\u2019s administrator and others. The decree being that Mrs. Rebecca Johns took under the will of her deceased husband, William Johns, an estate for her life only in the funds bequeathed, and had a life estate in the land purchased by her to the extent said funds entered into the purchase thereof, and that so far said land was not liable for her debts, the administrator of A. J. Johns, deceased, one of her creditors, appealed.\\nOpinion states the case.\\nCraig & Curry, for the appellant.\\nT. C. Elder, and White & Gordon, for the appellees.\", \"word_count\": \"1119\", \"char_count\": \"6211\", \"text\": \"Rauntleroy, J.,\\ndelivered the opinion of the court.\\nThe facts of the case presented by this record are, that William Johns died at his home, in the county of Augusta, in the summer of 1848, leaving his will, dated May 8, 1848, which was admitted to probate in the county court of Augusta county at the August term, 1848. The said will is very short, and after providing for the payment of the funeral expenses and the just debts of the testator, provides: \\\"I will and desire that my wife, Rebecca, shall have and hold all nay estate during her natural life, for the benefit of herself and children, to be used as she may think proper.\\\" The testator left surviving him his wife, Rebecca, and eight children\\u2014two sons and six daughters\\u2014 all infants, and most of them of tender age. He owned no real estate, and his personal property at his death, consisted of a fund of $900, which, as tenant of rented land, he had managed by industry and frugality, to save and accumulate over and above the maintenance of his large family. It was .the aim and desire of his life to purchase a home for himself and family, but called away by death before having done so, he enjoined it upon his wife to accomplish his purpose with the means which he had provided therefor. On the 16th day of March, 1849, less than a year after the death of William Johns, there was conveyed to his widow, Rebecca Johns, by an absolute fee-simple deed, a tract of land containing one hundred acres, situate in Augusta county, for the price of $1,500, receipted for in full in the said deed from Jacob Perry and wife to the said Rebecca Johns.\\nThe controversy between the appellant and the appellee is, whether this land, either wholly or in part, belonged to Mrs. Rebecca Johns in fee simple or for her natural life only, with remainder to the heirs-at-law of William Johns in fee?\\nThere are two questions involved in this appeal\\u2014one of fact and one of law. The question of fact, whether the whole of the $1,500 purchase money paid by Mrs. Rebecca Johns for this land was of the personal estate left by her husband, or how much thereof was so derived, was referred to a master commissioner, who made elaborate inquiry, and reported, upon evidence certified in the record, that the $900 left by William Johns, and only that much of his estate, went into the purchase and payment for the land, and the circuit court sustained the commissioner's finding and report as to this point.\\nWe think that the circuit court did not err as to this question of fact, and that it correctly overruled the exception of appellees to the master's report as to this.\\nThe question of law, involving the construction of William Johns' will, was' decided hy the circuit court, in the decree appealed from, that the widow, Rebecca Johns, took under the will of the testator, William Johns, only a life estate in the fund left hy him, which life estate was terminated by her death, and that the corpus of the said fund, embodied to the extent of $900 in the land in question, devolved, by law, upon the children and heirs-at-law of William Johns, free from the debts of the life tenant, Rebecca Johns, deceased.\\nWe think it plain, from the language of the clause of the will under construction\\u2014taken as an expression of the testator's intention\\u2014that it does not import an absolute estate to his wife, but does give to her, in express and apt words for the purpose, \\\" all my (the testator's) estate during her natural life, for the benefit of herself and children, to be used as she may think proper.\\\"\\nThe discretionary usufruct of the fund during life, means such a use as is consistent with the life estate expressly given; and the words used to express it cannot be seized upon by a technical finesse of the law, to enlarge the life estate given into an absolute estate, and thereby defeat the well-expressed and manifest intention of the testator. The added words, \\\" to be irsed as she may think proper,\\\" do not make or create a limitation over inconsistent with the first estate given; nor do they necessarily or reasonably mean or implicate such use of the property as would consume it or empower it to be disposed of beyond the life estate.\\nThis case does not fall within the ruling rationale of the cases of May v. Joynes, 20 Gratt., nor of Rhett v. Mason, 18 Gratt., 541.\\nIa the ease of Randolph v. Wright, 81 Va., Judge Lacy says that the case of May v. Joynes, is authority for itself alone, and commenting upon the cases of Riddick v. Cahoon, 4 Rand., 547; Burwell v. Anderson, 3 Leigh, 348; Nelson v. Cooper, 4 Leigh, 408; Brown v. George, 6 Gratt., 424; Cole v. Cole, 79 Va.; Carr v. Effinger, 78 Va., 147, he shows that in all these cases, either expressly or by necessary implication, authority was conferred 'on the first taker of the estate to consume it or dispose of it absolutely; but in the case under consideration, the words, \\\"to be used as she may think proper,\\\" are only apt and proper words to describe the use of the life estate given to Mrs. Johns by the clause of which they are a part.\\n\\\"We find no error in the decree of the circuit court of Augusta appealed from, and are of opinion to affirm the same.\\nDecree affirmed.\"}"

va/1967325.json

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+"{\"id\": \"1967325\", \"name\": \"Joe Benson v. City of Norfolk\", \"name_abbreviation\": \"Benson v. City of Norfolk\", \"decision_date\": \"1934-11-15\", \"docket_number\": \"\", \"first_page\": \"1037\", \"last_page\": \"1041\", \"citations\": \"163 Va. 1037\", \"volume\": \"163\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T02:00:15.112895+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Joe Benson v. City of Norfolk.\", \"head_matter\": \"Richmond\\nJoe Benson v. City of Norfolk.\\nNovember 15, 1934.\\nPresent, All the Justices.\\nThe opinion states the case.\\nErnest S. Merrill, for the plaintiff in error.\\nJohn N. Sebrell, Robert W. Shultice and Jonathan W. Old, Jr., for the defendant in error.\", \"word_count\": \"1108\", \"char_count\": \"6438\", \"text\": \"Browning, J.,\\ndelivered the opinion of the court.\\nThe plaintiff in error, Joe Benson, was arrested under a city warrant which charged him with violation of section 483 of the Code of the city of Norfolk. This section is as follows:\\n\\\"Section 483. Authority of police to require persons on street to move on.\\n\\\"Any person or persons, vending or hawking goods, wares, or merchandise, or loitering or standing on any of the streets or ways of the city, shall, when required so to do by any member of the police force, move on, or any group of persons standing shall separate and move on, and cease to occupy such position on the street or way, under penalty of not less than three nor more than fifty dollars for each offense, and in addition, in the discretion of the police justice, may be confined in jail not exceeding thirty days.\\\"\\nUpon the trial of the case Benson moved the court to quash the warrant alleging that the above section, upon which the warrant was founded, was unconstitutional. The motion was overruled. The jury found the defendant guilty as charged in the warrant and imposed upon him a fine of $50 and thirty days in jail. The verdict was sustained by the judgment of the trial court.\\nThere were two assignments of error but they deal with the single question before this court which is the constitutional validity of the city ordinance designated as section 483.\\nIn our opinion the ordinance is a valid exercise of the power of the city of Norfolk under its charter. The ordinance was passed in 1907 and has remained in the city code as the law ever since. It is to be noted that divers things are made offenses under its terms and are inhibited, among them. \\\"Any person loitering or standing on any of the streets or ways of the city, shall, when required so to do by any member of the police force, move on, .\\\"\\nThe warrant charged the defendant, Benson, with unlawfully violating the said section of the city Code, in failing to move on when told to do so by a police officer.\\nSubsection 11 of section 2 of the Norfolk charter of 1918 (Acts of Assembly 1918, chapter 34, page 31) provides that the city of Norfolk shall have the power:\\n\\\"To establish, open, widen, extend, and grade, improve, construct, maintain, light, sprinkle and clean public highways, streets, alleys, boulevards and parkways, and to alter or close the same; to establish and maintain parks, playgrounds and other public grounds; and to regulate the use of all such highways, parks, public grounds and works; to prevent the obstruction of such streets and highways and to do all other things whatsoever adapted to make said streets and highways safe, convenient and attractive.\\\"\\nSubsection 26 of section 2 of said charter empowers the city: \\\"To do all things whatsoever necessary or expedient for promoting or maintaining the general welfare, comfort, education, morals, peace, government, health, trade, commerce or industries of the city or its inhabitants.\\\"\\nSubsection 27 of section 2 of said charter empowers the city: \\\"To make and enforce all ordinances, rules and regulations necessary or expedient for the purpose of carrying into effect the powers conferred by this charter or by general law, and to provide and impose suitable penalties for the violation of such ordinances, rules and regulations, or any of them, by fine not exceeding five hundred dollars or imprisonment not exceeding six months, or both.\\\"\\nThe general power to regulate the use of the streets, and to do all things necessary or expedient for promoting the general welfare and peace of its inhabitants, and to make and enforce all ordinances would certainly seem to warrant the enactment of the ordinance in question.\\nThe warrant was inartificially drawn. It charges but a part of the crime committed under the ordinance, except by inference. No point is made of this by the plaintiff in error. He rests his case entirely upon the contended invalidity of the ordinance.\\nIn the case of Taylor v. Smith, 140 Va. 217, 124 S. E. 259, 263, it was claimed that an ordinance of the city of Roanoke, which provided that no one should operate a motor bus until he appeared before the superintendent of the police, and among other things, satisfied that officer of his character and qualifications. It was contended that this vested the head of the city police force with arbitrary powers aijdi furnished no rule for his guidance.\\nThe ordinance was sustained, the court saying: \\\"We are of opinion that a city may, in the execution of its police power, invest its administrative and executive officers with a reasonable discretion in the performance of duties devolved upon them to that end, whenever it is necessary for the safety and welfare of the public. Such a discretion is neither arbitrary nor capricious.\\\"\\nThe court quoted, with approval, from a note in 12 A. L. R. 1435, as follows: \\\"It is also well settled that it is not always necessary that the statutes and ordinances prescribe a specific rule of action, but on the other hand, some situations require the vesting of some discretion in public officials, as, for instance, where it is difficult or impracticable to lay down a definite, comprehensive rule, or the discretion relates to the administration of a police regulation and is necessary to protect the public morals, health, safety, and general welfare.\\\"\\nIt is, in our opinion, most salutary that the police officers of a municipality should have reasonable authority and discretion. Indeed, in exigencies, it is vital to the welfare of the community.\\nCourts should assume, initially, that they will exercise their discretion and authority in a fair and reasonable way.\\nSee State of Minnesota v. Sugarman, 126 Minn. 477, 148 N. W. 466, 52 L. R. A. (N. S.) 999; Com. v. Challis, 8 Pa. Super. 130; City of Chariton v. Fitzsimmons, 87 Iowa 226, 54 N. W. 146; People of N. Y. v. Galpern, 259 N. Y. 279, 181 N. E. 572, 83 A. L. R. 785.\\nThe above-cited cases deal somewhat with contentions similar to those urged by the plaintiff in error here. The conclusions are the other way.\\nWe think the trial court was clearly right in upholding the ordinance in question, and we affirm its judgment.\\nAffirmed.\"}"

va/1974590.json

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+"{\"id\": \"1974590\", \"name\": \"James T. Reid v. J. C. Boward, trading as Boward Truck Line and Charles Overcash\", \"name_abbreviation\": \"Reid v. Boward\", \"decision_date\": \"1943-06-14\", \"docket_number\": \"Record No. 2689\", \"first_page\": \"718\", \"last_page\": \"724\", \"citations\": \"181 Va. 718\", \"volume\": \"181\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T20:08:55.800511+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James T. Reid v. J. C. Boward, trading as Boward Truck Line and Charles Overcash.\", \"head_matter\": \"Wytheville\\nJames T. Reid v. J. C. Boward, trading as Boward Truck Line and Charles Overcash.\\nJune 14, 1943.\\nRecord No. 2689.\\nPresent, All the Justices.\\nThe opinion states the case.\\nAllen & Allen, for the plaintiff in error.\\nWayt B. Timberlake, fr., for the defendants in error.\", \"word_count\": \"1765\", \"char_count\": \"10082\", \"text\": \"Spratley, J.,\\ndelivered the opinion of the court.\\nThe proceeding arises out of a collision between an automobile in which James T. Reid, the plaintiff, was a guest passenger, and a tractor-trailer truck, owned by J. C. Boward and operated by his employee, Charles Overcash. Reid was painfully and seriously injured. On his motion for a judgment for damages against Boward and Overcash, there was a verdict for the defendants, which was approved by the trial judge and judgment entered thereon.\\nThe plaintiff assails the verdict as being contrary to the law and the evidence and without evidence to support it. He also contends that the trial court erred in the admission of certain testimony.\\nThis is another of those cases where the right of recovery is based solely on questions of fact. The two theories of the cause of the collision are irreconcilably different, and the pertinent evidence on behalf of the respective parties is wholly in conflict.\\nThe pl\\u00e1intiff, a student at the University of Virginia, was a guest passenger in a 1941 Ford convertible sedan, owned by a fellow student and operated by another student. There were five young men in the car. Reid and the owner of the car were on the front seat with the driver, the remaining two being seated in the rear. The accident occurred about one a. m., January 16, 1942, as the young men were returning to the University on main State highway No. 250, from a basketball game at William and Mary College. They were traveling towards the west.\\nThe defendant, J. C. Boward, is the owner of the tractor-trailer truck which was being driven eastwardly by his employee, Charles Overcash, at the time of the accident. The tractor is seventeen feet long, the trailer twenty-two feet long and eight feet wide. The tractor is slightly narrower in width. The trailer had removable sides forty inches in height, its entire height from the ground being slightly more than seven feet. The trailer was loaded with 16,000 pounds of flour, its top b,eing covered with a tarpaulin.\\nThe weather was clear on the night of the accident. The road extended through a hilly countryside. The collision occurred on a straight strip of the highway between two small hills. The road, at the point of the collision, is a hard asphalt surface, approximately nineteen feet wide, with dirt shoulders on each side three or four feet in width. There is a double line in the center, consisting of a broken fine on the south side and a solid line on the north side, the solid fine being next to the line of travel of the Ford car.\\nThe left front of the sedan, first scratching the tire of the left wheel of the tractor, came into slight collision with the left front corner of the defendants' trailer, and then continued along the side of the trailer and knocked off its left rear dual wheel. The broken axle of that wheel fell to the ground and made a cut in the surface of the highway, beginning nine inches to the defendants' right of the center of the road. The cut continued for about seventy-two feet near the center of the road, veering slightly towards the left, to the point where the truck was brought to a stop. The sedan rebounded from the trailer and came to rest upside down about one hundred and ten feet west of the point of the collision on the north side of the highway.\\nThe plaintiff and three of his companions testified that as they came to the crest of the hill, traveling about fifty miles an hour, they saw two sets of headlights in the road in front of them about three hundred yards distant on the top of another crest. They assumed that there were two cars traveling abreast towards them, or that one was passing another. Their car, said they, continued on its proper side of the road, close to the right edge, with slightly diminished speed, to the point of collision, where it collided with the left side of the tractor-trailer, which had not completely returned to its proper side of the road. They did not observe any dimension or marker lights on either the defendants' tractor-trailer or on another tractor-trailer, operated by E. G. Wiseman, showing the other headlights they had observed, and which was closely following the defendants' truck.\\nIn effect, their evidence was that the collision occurred because the defendants' tractor-trailer was to its left of the center of the highway, and failed to carry the lights required by Virginia Code, 1942, (Michie) section 2154 (141), that is, lights at the top corners of the trailer.\\nOvercash testified that his truck had passed the Wiseman truck one-half a mile west of the point of the accident, two hills removed to the west and that both his tractor and trailer had returned to his proper lane of travel, that is, entirely to the right of the center line of the highway before the collision; that, in addition to two front headlights and three marker lights across the top front of his tractor, there were marker lights on' each of the lower four corners of his trailer, amber in front and red in the rear; that the Ford sedan approached him at a high rate of speed traveling to its left of the center of the road with brilliant headlights and a spotlight turned on his truck; that realizing a collision was imminent, he turned to his right towards the shoulder of the highway, but only succeeded in getting the tractor out of the path of the oncoming sedan; and that the line of the cut made in the road by the broken rear axle was caused by the trailer plunging forward to its left as its rear wheel came off. The tractor-trailer was traveling between twenty-five and thirty miles an hour.\\nWiseman, the operator of the second tractor-trailer, fully corroborated the testimony of Overcash, that all of the latter's vehicle was entirely on the right side of the road when it was first struck, having fully cleared the Wiseman truck about one-half a mile from the scene of the collision; that the defendants', tractor-trailer bore the marker lights described by Overcash, all of which, except the one on the lower left front of the trailer which was torn off by the collision, were burning after the accident; and that the Ford sedan was proceeding so far to the left of the center of its proper lane of travel that if it had continued its course, without striking the defendants' truck, it would have come into collision with his, Wiseman's, truck, which was one hundred and twenty feet behind the defendants' truck, on its right side of the road.\\nIn effect, the evidence of the defendants was that the Ford sedan was traveling to the left of the center of the highway, and that notwithstanding the lights on both the tractor and the trailer it crashed into the left side of the tractor-trader, while the latter was traveling in its proper portion of the highway.\\nOver the objection of the plaintiff, Wiseman was permitted to testify that, in addition to two burning headlights on his truck, he had two marker lights on the front of his tractor cab; six amber lights on his trailer front, two on each top corner, one at each bottom corner; and four red lights, one on each side of the back of his trailer, top and bottom,\\u2014 a total of fourteen lights burning.\\nIn view of the testimony of the witnesses for the plaintiff that they saw no proper marker lights burning on either tractor-trailer, this testimony was admissible for the purpose of contradicting them and to set out the surrounding facts and circumstances attending the collision in determining the exercise of proper care under the existing conditions.\\n\\\"It may be stated generally that in an action growing out of an automobile accident any evidence of the conditions and circumstances leading up to and surrounding the accident which will throw light upon the conduct of the parties and the care or lack of care, exercised by them, is admissible.\\\" 5 Am. Jur., Automobiles, page 849.\\nOne question of fact was whether the defendants' lights conformed to the statute. Another essential question of fact was whether a breach of the statute caused or contributed to the collision. The violation of a statute, although negligence per se, will not support a recovery for damages unless such violation proximately causes or contributes to the injury complained cf. Kinsey v. Brugh, 157 Va. 407, 161 S. E. 41; Harris v. Howerton, 169 Va. 647, 194 S. E. 692; Hubbard v. Murray, 173 Va. 448, 3 S. E. (2d) 397; Gregory v. Daniel, 173 Va. 442, 4 S. E. (2d) 786.\\nThe jury was fully instructed, without objection or exception, on all questions. They were told that if they believed the defendant truck driver was negligent in the operation of his tractor-trailer, or in the failure to maintain proper lights thereon, and such negligence, in either case, caused or efficiently contributed to the collision, they should find for the plaintiff. They were also told that if they believed the operator of the Ford sedan drove his car to his left across the center line of the highway and struck the tractor-trailer while it was on its proper side of the highway, and that this was the sole proximate cause of the collision, they should find for the defendants.\\nThe questions of fact involved were peculiarly for the jury. The evidence of the defendants was positive and credible, and an impartial jury has accepted their version and rejected that of the plaintiff. Their verdict, under proper instructions, has settled all questions o'f fact. It has been approved by the trial court and, upon well settled principles in this jurisdiction, it cannot now be disturbed by us. Norfolk, etc., R. Co. v. Richmond Cedar Works, 160 Va. 790, 170 S. E. 5; Virginia Elec., etc., Co. v. Morgan's Adm'r, 162 Va. 123, 173 S. E. 373; Bristow v. Brauer, 175 Va. 118, 7 S. E. (2d) 93.\\nFor the foregoing reasons, the judgment of the lower court is affirmed.\\nAffirmed.\"}"

va/1984087.json

@@ -0,0 +1 @@
+"{\"id\": \"1984087\", \"name\": \"Lloyd C. Gilley, et als. v. Nancy J. Nidermaier\", \"name_abbreviation\": \"Gilley v. Nidermaier\", \"decision_date\": \"1940-09-05\", \"docket_number\": \"Record No. 2280\", \"first_page\": \"32\", \"last_page\": \"43\", \"citations\": \"176 Va. 32\", \"volume\": \"176\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T02:00:13.938869+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lloyd C. Gilley, et als. v. Nancy J. Nidermaier.\", \"head_matter\": \"Staunton\\nLloyd C. Gilley, et als. v. Nancy J. Nidermaier.\\nSeptember 5, 1940.\\nRecord No. 2280.\\nPresent, All the Justices.\\nThe opinion states the case.\\nS. H. Bond and E. H. Richmond, for the appellants.\\nPhilip M. Flanagan and J. E. Kelly, for the appellee.\", \"word_count\": \"3478\", \"char_count\": \"19167\", \"text\": \"Gregory, J.,\\ndelivered the opinion of the court.\\nThis appeal brings before us the construction of clause IV of the will of J. B. Gilley, who died on December 11, 1923. The will is set out at large in order that it may be considered as a whole in ascertaining the testator's intention. It was admitted to probate in 1923, and is in the following language:\\n\\\"I. I will and direct that my executor, hereinafter named, pay all my just debts, if I shall owe any, the costs of administration and my funeral expenses.\\n\\\"II. In the event my beloved wife, Mrs. Nannie E. Gilley, outlives me, I will and direct that she shall have a home at my residence in Gate City, Scott County, Virginia, and that she be properly and comfortably supported. Her proper and comfortable support is made a charge upon my estate. My intention is that she shall be properly and comfortably supported as long as she lived.\\n\\\"III. As to my real estate, I dispose of it as follows:\\n1. I will and devise to my daughter Myrtle O. Johnson, the house and lot where I now live, it is bounded on the north by the alley running to the cemetery, between my property and the M. T. Hash property, on the east by the street running north from Main Street and west of the Court House, on the south by the lot formerly owned by Mrs. J. M. Minnich and on the west by the cemetery.\\n2. I will and devise to my son Lloyd C. Gilley, the house and lots I bought of E. Thompson Carter and I refer to the deed from him to me for a description of the property.\\nAs there is a difference in value between the property devised to my daughter, Myrtle O. Johnson, and the property devised to my son, Lloyd C. Gilley, I will and bequeath to my son Lloyd C. Gilley, in order to make them equal, the stock of general merchandise, now at what is know as the Blue Store on Big Moccasin Creek in Scott County, Virginia, and my shares of stock in the First National Bank of Gate City, Virginia.\\n\\\"IV. I will and direct that my son, Lloyd C. Gilley pay to Effa Niedemeyer, formerly Effa Ratliffe the sum of One Thousand Dollars, which shall be paid within three years from the date of my death.\\nI will and direct that my daughter Myrtle O. Johnson pay to Lorraine Ratliffe the sum of One Thousand, which shall be paid within three years from the date of my death. If Lorraine is still a minor at my death, the money shall be paid to her gardian, if she has one. If she has not, then the money shall be placed in a good bank on a time certificate for her.\\n\\\"V. I will and bequeathe all my personal estate of whatever kind or description except what is necessary to pay my debts, costs of administration and funeral expenses, and except the stock of general merchandise and the bank stock hereinbefore will and requeathed to my son, Loyd C. Gilley, to my two children, Myrtle O. Johnson and Lloyd C. Gilley to be equally divided between them.\\n\\\"VI. I am now endorsing notes for both of my children and if I should have to pay anything for either of them then such sum or sums, whatever it may be, shall be deducted from his or her share of my estate, so as to make them equal.\\n\\\"VII. This is my will and there shall be no litigation over it. Any one seeking by litigation or other wise to set aside or annul my will or any part of it, shall not receive any thing and his or her share, bequest or devise shall go to the other party or parties in the manner herein provided, that is such share shall go back to and become a part of my estate to be disposed of as herein provided for the other parties.\\\"\\nThe testator left surviving him his widow and two children, Mrs. Myrtle O. Johnson and Lloyd C. Gilley. He also had two stepdaughters, Effa Nidermaier, formerly Effa Ratliffe, and Lorraine Ratliffe. His estate amounted to some $19,000, and consisted of personalty and realty. After the payment of the debts of the estate in accordance with the direction of the testator and the distribution of the personal property specifically bequeathed to the son, Lloyd C. Gilley, in clause III (2), there remained only $39.01 to be divided between the two children under clause V of the will.\\nIn 1931 Lloyd Gilley conveyed all of his property both real and personal to his wife Lois Gilley in consideration of love and affection. In 1933 Lois Gilley and her husband Lloyd conveyed the real estate to H. F. Addington for $2,500, payable by the cancellation and surrender of an interest-bearing note of $1,440.80 made by Lloyd Gilley and payable to Addington, and the balance was paid in cash.\\nThe legacy of $1,000 directed to be paid by the son Lloyd to the step-daughter Effa Nidermaier in clause IY was never paid. She died intestate in 1934, leaving a daughter, Nancy Nidermaier, as her sole heir at law. As such the latter filed a bill of complaint against Lloyd C. Gilley and Lois E. Gilley, his wife, and H. F. Addington, seeking to have the legacy made to her mother charged as a lien on the realty devised to the son Lloyd and now owned by Adding-ton,\\nIn 1937 Lloyd Gilley filed his petition in bankruptcy and listed as one of his obligations the $1,000 legacy due the mother of the appellee. The personal liability for the payment of the legacy was wiped out by a discharge in bankruptcy granted him in 1938. However, the discharge discloses that the claim that the legacy was a charge or lien on the land devised to him was not considered by the court of bankruptcy, it being advised that this matter was exclusively one for the State courts.\\nThe present suit was instituted April 25, 1938, some fifteen years after the death of the testator and about twelve years after the expiration of the three-year period fixed by the testator for the payment of the legacy.\\nThe defendants below, the appellants here, filed a demurrer and answer. The gist of their defense was that the testator created no charge upon the realty for the payment of the legacy, that it was only a personal obligation, and that in any event the legacy was barred by the statute of limitations.\\nThe court rejected the defenses and decided that the legacy was a lien upon the real estate, that the purchaser H. F. Addington had constructive notice of the lien, since the will had been properly recorded in the county where the land lay, and that the statute of limitations was not applicable.\\nThere are but two questions involved here: First, was the payment of the legacy made a charge upon the lands of the devisee; and, second, was the charge or lien, if created by the testator, barred by the statute of limitations? The personal obligation of Lloyd Gilley to pay the legacy has been discharged in bankruptcy and is not now before us.\\nIt is perhaps significant that the testator desired that his widow should have a home and be afforded proper and comfortable support. For the purpose of securing this benefit to her he made, in clause II of the will, her \\\"proper and comfortable support\\\" a charge upon his estate. This charge was not only upon his realty but also upon his personalty. In clause IV of the will the two legacies of $1,000 each were not expressly made charges against his estate. It is argued that inasmuch as the testator expressly made the support of his widow a charge upon his estate in the first instance and failed so to charge the estate passing to his two children with the payment of the two $1,000 legacies in favor of his step-children, this circumstance indicates that he did not intend to charge the realty devised to his children with the two legacies.\\nHowever, there is language in the will which, together with the attendant circumstances, is sufficient to charge the realty with these legacies. The legacy in favor of Lorraine Ratliffe, to be paid by the testator's daughter, Myrtle O. Johnson, is not in question in this case. However, the testator must have known that if his daughter were to pay this legacy out of her share of the estate, it would have to be paid from the sale of the realty, or from funds borrowed on it. No personalty was left to her from which payment of the legacy might be made. We therefore conclude that the testator contemplated that the legacy should be paid from the realty, and thus impliedly charged the legacy on the real estate left to his daughter.\\nSimilarly, the testator must have intended that the legacy over which the present litigation arose should be a charge on the realty left to his son. Both legacies are created in the same section of the will, and the testator expressed in clear language his intention that the step-children should receive legacies of equal value, just as he indicated, else where in the will, that his own children should receive equal shares in his estate.\\nWhen we apply the principle of equality between his children, and see that the daughter's portion of the realty was impliedly charged with the payment of a $1,000 legacy, we must conclude that the testator also intended to charge the son's portion of the realty with the $1,000 legacy payable to the appellee's mother. Both daughter and son were directed to pay a $1,000 legacy, and it is untenable to as-' sume that the testator intended to charge the daughter's realty in this respect and not to make a similar charge on the realty of the son.\\nClause VII is very significant. If the widow or either child or step-child should seek to set aside or annul the will or any part of it such person would forfeit his devise or legacy and receive nothing. In this case the son Lloyd will have \\\"set aside\\\" a portion of the will if he is permitted to evade the payment of the legacy. Of course the portion of the estate received by him cannot be forfeited, because he no longer has it, but the court can follow the realty and impress it with a lien in favor of the legatee as long as the realty is not in the hands of a bona fide purchaser. Here, as already stated, the purchaser had constructive notice of the legatee's claim.\\nThe devises and the legacies were inseparably joined in this will. When the devisees accepted their devises they at the same time became obligated to pay the legacies. If the devisees failed to pay the legacies as directed the testator intended their devises to be forfeited under clause VII.\\nOur Virginia court has not squarely passed upon the question presented here. However, in Armentrout v. Armentrout's Ex'rs, 112 Va. 660, 72 S. E. 721, and in Wenner v. George, 129 Va. 615, 106 S. E. 365, it has at least incidentally held that where property is devised and the devisee is directed to pay a legacy or legacies and he accepts the devise he not only becomes personally obligated to pay the legacy but it also becomes a, charge upon the land devised. It may be sold to enforce the payment of the legacy.\\nIn Armentrout v. Armentrout's Ex'rs, supra, the testator devised his estate to his wife for life with remainder in fee to five of his children. He directed these children to pay $400 each to his other three children. Suit was brought by the beneficiaries of the $400 payments against the five remaindermen during the lifetime of the life tenant. \\u2022 The court held that the payments were not due and payable until after the death of the life tenant and for that reason denied a recovery. However, the court observed, \\\"The will gives the appellees the estate in remainder, after the expiration of the life estate of their mother, and nothing more, and it requires the appellees to pay the appellants $400 each, thus making these sums a charge upon the estate in remainder of the appellees and upon no other estate.\\\" [112 Va. 660, 72 S. E. 721.]\\nIn Wenner v. George, supra, the testator devised lands to his son for life provided he would pay his sister $4,000 within ten years. He further provided that any legatee signifying an intention not to abide by the provisions of the will should forfeit his interest. The court held that the life tenant was personally obligated to pay the $4,000, he having accepted the devise. The court, speaking through Judge Prentis, concluded: \\\"It is perhaps immaterial in this case that the trial court failed to hold that the legacy constituted a charge against the life estate of Ashland C. George, because the record appears to indicate that Ashland C. George is financially able to pay the amount. The trial court, however, should have followed the precedents indicated by the cases of Jackson v. Updegraffe, 1 Rob. (40 Va.) [107], 114, and Cockerille v. Dale's Adm'r, 33 Gratt. (74 Va.) 45, and held that the life estate devised to Ash-land C. George was an auxiliary security for this legacy and charged therewith as the only property indicated by the testator for its payment.\\\" [129 Va. 615, 106 S. E. 367.]\\nBeyond the Virginia jurisdiction the authorities are overwhelming in holding that legacies similar to the one here involved are charges upon the land devised. The annotators and cases are almost in one accord. In 62 A. L. R., there is an exhaustive annotation. The annotator says (pp. 596, 597) : \\\"The courts have,- wherever possible, construed a provision for the payment of a legacy, or a sum of money, as a charge rather than a condition precedent, in order that the estate may vest in the devisee. Thus, where it appears from the language of the will that the testator intended to couple the payment of the legacy by the devisee with the devise of the land, so that the payment is to be made, because, or as a condition on which, the devise has been made, then the real estate is, in equity, chargeable with the payment of the legacy.\\\"\\nAgain, in 116 A. L. R. 22, the rule is reiterated in this language: \\\"By imposing upon a devisee of real estate the payment of a legacy, a charge is created against the devised land, which is therefore made primarily liable for the payment of such legacy. That is to say, when a legacy is charged on lands devised by the testator's will, it becomes a lien which may be enforced against the land itself.\\\" And 116 A. L. R. 22: \\\"The personal liability of the devisee does not discharge the real estate from the lien of the charged legacy. That is to say, the right to enforce the lien of a legacy charged on land against the land itself exists notwithstanding the devisee's personal liability.\\\" These quotations are supported by a host of cases from nearly every jurisdiction.\\nIn 69 C. J., section 2506 (pp. 1184, 1185), is this clear statement: \\\"Where, however, a devisee is expressly directed to pay certain legacies, although not expressly charged by the will, this will, as a general rule, charge the legacies on the land or interest devised, to the relief of the balance of the estate. This rule is particularly applicable where the will further provides that any beneficiary not accepting such condition should forfeit all interest under the will. And even if it is doubtful whether it was the intention of the testator to charge a legacy which the devisee is directed to pay upon the land devised, the construe tion should be in favor of charging the land, as it should be presumed that the testator designed that his estate, rather than the personal liability of his devisees, should stand as security for the fulfillment of his bequests.\\\"\\nTo hold that the legacy here is not a charge upon the realty devised would not only result in defeating the legacy but it would also defeat the expressed intention of the testator to forfeit the interest of anyone who sought to set aside any portion of the will. The very right and justice of this case demand that the real estate be charged with the legacy.\\nWe are not unmindful of the other rule so well established in Virginia to the effect that personalty is the primary source from which legacies must be paid and that they are not ordinarily charged upon the realty unless they are expressly or impliedly so charged by the testator. Cases such as Lee v. Lee, 88 Va. 805, 14 S. E. 534; Todd v. McFall, 96 Va. 754, 32 S. E. 472; and Smith v. Mason's Ex'r, 89 Va. 713, 715, 17 S. E. 3, 4, support that rule. By the decision of the present case we do not intend to change or modify the principle found in those cases, which are different from the present one.' Here the devisee is expressly charged with the payment of a legacy upon the pain of suffering a forfeiture of his devise if he refuses to pay it. Where the portion going to the devisee is composed largely of realty the testator in the absence of expressly charging the land with the payment of the legacy will be presumed to have intended it to be paid from the land.\\nWe have no statute of limitation particularly applying to a charge or lien of this nature. The appellants invoke Code, section 5818, which provides a limitation \\\"of actions not before specified.\\\" It is quite clear that this statute has no application here, because in express language it is limited to \\\"Every personal action, for which no limitation is otherwise prescribed \\\". Here we have no personal action, and no personal liability is sought to be enforced. This is purely an equitable suit for the enforcement of a charge or lien upon land. If the land is not sufficient to pay the charge the deficiency cannot he converted into a judgment in personam, against anyone.\\nThere being no applicable statute of limitation that might be invoked, the defense of laches, if made out, would bar the enforcement of the charge. But when we advert to the Virginia law upon this subject it clearly appears that the requisites of laches are not present. As stated in Michie's Digest, Laches, section 7, p. 605: \\\"Generally if the sum sought to be recovered is certain, the transaction has not become obscure, and there has been no such loss of evidence as will be likely to produce injustice, a court of equity will not refuse relief, merely because there has been delay in asserting the claim. Branner v. Branner's Adm'r, 108 Va. 660, 62 S. E. 952. See Davis' Adm'r v. Davis, 104 Va. 65, 51 S. E. 216; Selden's Ex'r v. Kennedy, 104 Va. 826, 52 S. E. 635 [4 L. R. A., N. S., 944, 113 Am. St. Rep. 1076, 7 Ann. Cas. 879]; Depue v. Miller, 65 W. Va. 120, 64 S. E. 740 [23 L. R. A., N. S., 775]; Adams v. Pugh's Adm'r, 116 Va. 797, 83 S. E. 370; Teter v. Moore, 80 W. Va. 443, 93 S. E. 342; Browning v. Browning, 85 W. Va. 46, 100 S. E. 860; Tidball v. Shenandoah Nat. Bank, 100 Va. 741, 42 S. E. 867.\\\"\\nAnd ibid, section 11, p. 609: \\\"It is a general rule in equity that mere lapse of time, unaccompanied by circumstances affording evidence of a presumption that the right has been abandoned, is not considered laches.\\\" It was held in Wingfield v. McGhee, 112 Va. 644, 72 S. E. 154, that it satisfactorily appeared that a legacy had never been abandoned or paid, though many years had elapsed since it became due, and that the claim therefor was not barred by laches, because no injury would result to anyone from subjecting the land to its payment.\\nMere delay without more will not constitute laches. The other essentials of laches nowhere appear.\\nThe decree is\\nAffirmed.\"}"

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+"{\"id\": \"1987120\", \"name\": \"Olga Hughes v. Newton E. Hughes\", \"name_abbreviation\": \"Hughes v. Hughes\", \"decision_date\": \"1939-09-13\", \"docket_number\": \"Record No. 2136\", \"first_page\": \"293\", \"last_page\": \"306\", \"citations\": \"173 Va. 293\", \"volume\": \"173\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T17:31:15.187720+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Olga Hughes v. Newton E. Hughes.\", \"head_matter\": \"Staunton\\nOlga Hughes v. Newton E. Hughes.\\nSeptember 13, 1939.\\nRecord No. 2136.\\nPresent, Campbell, C. J., and Hudgins, Gregory, Eggleston and Spratley, JJ.\\nThe opinion states the case.\\nFred B. Greear and Walter B. Phipps, for the appellant.\\nJ. C. Smith and S. H. & Geo. C. Sutherland, for the appellee.\", \"word_count\": \"3761\", \"char_count\": \"21207\", \"text\": \"Hudgins, J.,\\ndelivered the opinion of the court.\\nThis is a suit for divorce, instituted by Newton E. Hughes against his wife, Olga Hughes. The bill alleges that the wife was jealous, quarrelsome and nagging; that she falsely accused her husband of infidelity, and that as a result of continuous bickering his health became so impaired that he was forced to leave his home, resign as assistant cashier of a branch bank in Haysi, and secure employment at a reduced salary in Richmond. The husband prayed that the custody of their only child, a boy eight years of age, be given to him, or his father\\u2014W. E. Hughes, and that he be granted a divorce a mensa.\\nThe wife filed her answer and cross-bill. The answer denies each material allegation of the bill. The cross-bill alleges that the husband wilfully, and without just cause, deserted her; that she was without funds necessary to defend her rights in the suit, and that she had no separate means to support herself and her child. The prayer of the wife was that her husband be compelled to pay her temporary alimony pendente lite, suit money and attorney's fee, and permanent alimony, and that the custody of the child be awarded to her.\\nOn the final hearing the chancellor denied the parties any relief, but leave was given either party to apply to the court \\\"as future circumstances might require, for the care, custody, maintenance and education of the infant.\\\" To that decree the wife sought and obtained this appeal. The husband assigns cross-error. These contentions make it necessary to examine the evidence, in detail.\\nIt appears that the parties were married on May 17, 1924, and lived together, as man and wife, in Dickenson county until January 1, 1938. The only issue of this marriage is a son, Robert Edward Hughes, who was born in April, 1931. This couple was entirely dependent for their sustenance upon the earnings of the husband. Soon after the marriage, he acquired a lot in the town of Clintwood, and with the active cooperation of his wife, built thereon a modest home, which cost approximately $2,500.00. Prior to 1937, the parties seem to have lived together happily, peacefully and contentedly, without any substantial disagreements.\\nDuring most of the married life of the parties, the husband was connected with county politics in Dickenson county. He served as deputy clerk of the county for some four years. He then became deputy treasurer of the county, and continued as deputy treasurer until John M. Rasnick, the treasurer, was defeated for the office in the November election, 1935. Soon after this date he secured a position as assistant cashier of the Cumberland Bank & Trust Company, and was placed in charge of a branch of this bank at Haysi, in Dickenson county. For several months the parties continued to live at Clintwood. The husband drove twenty-two miles to the bank in Haysi each day to work. In May of the same year, the family moved into a rented house at Haysi, for which they paid $25.00 a month. The home in Clintwood was rented to third parties, for $20.00 per month. This latter sum was used by the wife, with the husband's consent, as spending money for herself and child, except a small part which was used for repairs upon the house in Clintwood.\\nSometime in the late summer or the early fall of 1937, the husband executed a deed of gift conveying the house and lot in Clintwood to his wife. He stated that this was done in an effort to stop her j ealous bickerings; she claims \\u2022that it was done without her suggestion, and that the deed was left among her papers unrecorded until sometime in January, 1938.\\nThe husband contends that he was forced to leave his wife in December, 1937, and states his reason for so doing was \\\"to get relief from the nagging and worries.\\\" The first and only specific instance found in his testimony as to this \\\"nagging and worry\\\" occurred in the fall of 1934. He stated that on this occasion \\\"he was accused of a woman in this town\\\" (Clintwood) ; that he was nagged and annoyed for a .period of two months; he then \\\"explained to her that there was no ground for such accusations. I don't know whether I convinced her I was innocent or not, but after we had discussed it and she made the statement that she wouldn't never bring it up again, I told her I wouldn't live with her again if she did.\\\" He does not claim that any other strain occurred in his marital life until July, 1937, in which month his wife again made false accusations .against him and repeated them at intervals the rest of the year. The substance of these alleged false accusations, as stated by the husband, was that his wife repeatedly said to him \\\"she knew more on me than I thought she knew. After admitting that she was jealous, I was never able to get her to point out any particular party, in order that I might adjust or clarify myself.\\\"\\nThis is the type of testimony which the husband claims seriously impaired his health and caused him to lose weight.\\nThe uncontradicted evidence is that the husband had a serious attack in June, 1937, thirty days before he claims she began for the second time to make accusations against him. Dr. F. H. Smith, a member of the staff of the Johnston Memorial Hospital in Abingdon, Virginia, made a detailed medical report on the condition of Newton E. Hughes. In this report it is stated that the patient was suffering from a severe attack of indigestion and that he had been subject to these attacks for four years prior to June 7, 1937, the date of the report.\\nNo witness other than the husband attributed his attacks of indigestion and nervousness to his wife's treatment of him. The friends and neighbors who testified in the case stated that so far as they could observe the wife was quiet, considerate and attentive of her husband's welfare. They never heard her quarreling with her husband, or saw any evidence of jealousy which her husband testified she exhibited because of his attentions to other women.\\nCode, section 5106, provides that a suit for divorce shall be instituted and conducted as other suits are, \\\"except that the bill shall not be taken for confessed, nor shall a divorce be granted on the uncorroborated testimony of the parties, or either of them; and, whether the defendant answer or not, the cause shall be heard independently of the admissions of either party in the pleadings or otherwise; \\\"\\nThe husband's testimony of his wife's ill treatment of him is very general, vague and indefinite. It is not corroborated. Hence, the trial court was clearly right in denying his prayer for a divorce a mensa.\\nThe husband contends that he had made ample financial provision for his wife and child, and that she is not entitled to any affirmative relief. These financial provisions were:\\n(1) A conveyance to her of the home in Clintwood, valued at approximately $3,000.00.\\n(2) That since the separation he has sent her $20.00 per month.\\n(3) That he has arranged, through his father, with merchants in Clintwood to extend $30.00 a month credit to his wife for food and clothing.\\n(4) That he gave her an automobile and other personal property, before instituting this suit.\\nIt seems that after the husband had definitely determined to leave his wife, he had his father, W. E. Hughes, and his lawyer, J. C. Smith, make her a proposition for the settlement of their marital difficulties. The wife understood this proposition to be that if she would return from Haysi to Clintwood, she would have the home and the furniture, free of debt, that the custody of the boy would be given to W. E. Hughes and that either she or her husband could visit him whenever they so desired, and that W. E. Hughes would not permit either her or the boy to suffer for food or clothing. In the event the wife accepted this proposition, she surrendered her right to the care and custody of her only child, the possession and title to a Chevrolet car registered in her name, and virtually transferred her marital right to look to her husband for maintenance, to his father, W. E. Hughes, who was under no legal obligation to provide such maintenance. This proposition Was declined by the wife.\\nIt appears that the husband, without consulting his wife, .notified the tenant in the home at Clintwood to vacate on January 1, 1938. The husband took his wife's car and kept it in Richmond. Knowing that her husband had left her, she moved her furniture from Haysi to Clintwood, and stored it in the home, and continued to live with one of her sisters. Early in 1938, she recorded the deed of gift from her husband, and rented the home (except two rooms in which her furniture was stored) for $22.50 per month. The father, W. E. Hughes, gave her $10.00 a month for January and Eebruary, and she received $20.00 a month for March, April .and May. She was not fully informed as to what arrangements, if any, had been made for her to obtain the necessities of life from the merchants in Clintwood, and as a matter of fact never bought one pennyworth from them. This arrangement for extending credit to the wife was made by W. E. Hughes, who is under no legal obligation to support and maintain Olga Hughes and her son, and therefore this extension of credit to the wife may be withdrawn at will. The inference from the testimony is that it has already been so withdrawn.\\nIt further appears that Newton E. Hughes owed the following obligations:\\n(1) He was accommodation endorser on a note for $800.-00 executed by John M. Rasnick, his former boss, held by the receivers of the Dickenson County Bank.\\n(2) He was maker of two notes, totalling $250.00, held by the Cumberland Bank & Trust Company.\\n(3) He owed an open account of $46.00 due the Haysi Motor Sales Company for automobile tires, repairs, and gasoline.\\nAfter his wife had refused to accede to her husband's unreasonable proposition, and after this suit was begun, he informed his creditors, either directly or indirectly, that he had conveyed his home to his wife, and suggested that they bring suit to set aside the deed and subject the home to the payment of the debts owed by him. In addition, he instructed Haysi Motor Company to charge the $46.00 account to him and his wife jointly, and obtain a joint judgment against her.\\nEvery creditor followed his suggestion, and receivers of the Dickenson County Bank filed a suit against N. E. and Olga Hughes to set aside the deed conveying the house and lot in Clintwood to the wife and subject that property to sale to satisfy the debt due and owing by her husband. The house and lot were thus sold by decree of court, at public auction, and brought approximately $1,900. All except about $200.00 will be used to pay the debts and costs of the proceedings.\\nIn addition, Newton E. Hughes gave a written order to W. E. Hughes, directing the father to go to the home of Olga Hughes, seize the furniture and sell it to pay a part of his obligations. Pursuant to these directions, W. E. Hughes, through his agents, broke into the rooms in which the furniture was stored, seized and sold a part of it, and retained the proceeds and unsold furniture in part payment of debts which W. E. Hughes claims the son owes him and his wife, Mrs. W. E. Hughes.\\nSometime in June, 1938, the wife obtained possession of the car in Richmond, and sold it for $180.00 net to her. She collected one or two months' rent before the home was sold. She received, within five or six months, $80.00 from her husband and his father, but most of the checks were earmarked for the benefit of the son. These sums, plus a small amount that she may receive from the proceeds of the sale of her home after her husband's debts and cost of litigation have been deducted, constitute her entire financial assets.\\nIt is to be noted that the suit to set aside the deed to the wife was not only instituted at her husband's suggestion, but the principal debtor, James M. Rasnick\\u2014his former employer\\u2014is now employed at a substantial salary by the same State department that employs Newton E. Hughes. The continued friendship between Rasnick and Hughes, together with other circumstances revealed in the record, indicate that if Hughes had really desired to prevent the sale and preserve his wife's home, he could have done so. However that may be, the course pursued by the husband has deprived his wife- of her home, furniture, and all other tangible assets save those enumerated above. The contention of the husband that he has made ample financial provision for his wife and child is not supported by the evidence.\\nBut even if he had entered into a voluntary, binding obligation to support and maintain his wife and child, and the court had found it insufficient under all the circumstances of the case, then it could have exercised its discretion and changed the amount set forth in the agreement.\\nIn Gloth v. Gloth, 154 Va. 511, 536, 153 S. E. 879, 887, 71 A. L. R. 700, we said: \\\"Prior to the institution of the suit for a divorce a mensa et thoro, the husband may in large measure decide for himself what he will contribute to the support of his wife, subject to the proviso that it must be reasonably sufficient considering his circumstances and her needs. But after the institution of the suit the amount which he will contribute to her support, or which she may demand that he contribute to her support, is no longer one for the determination of the parties but for the court, whose jurisdiction to regulate this subject having attached ousts the judgment and discretion of the parties.\\\"\\nIt is true that in the Gloth Case the wife had obtained a divorce a mensa. In this case, the trial court correctly ruled that Newton E. Hughes was not entitled to such a decree, and since the wife, in her cross-bill, did not ask for a divorce, no decree of divorce was granted. Since the date of opinion in the Gloth Case, Code, section 5111, has been amended and now, in part, reads as follows: \\\"Upon decreeing that neither party is entitled to a divorce, the court may make such further decree as it shall deem expedient concerning the estate and maintenance of the parties, or either of them, and the care, custody and maintenance of minor children.\\\"\\nThe trial court judicially determined that the husband had left his wife without legal cause. The evidence revealed that before and after the husband had begun this suit, by conduct and statement, he had fully determined to ignore all marital ties so far as Olga Hughes was concerned. The wife is living with a sister, who married an uncle of her husband, and at the present time is in a measure dependent upon the charity of her family. The husband, by his testimony and conduct, reveals an utter indifference to the distressing situation of his wife.\\nThe 1934 amendment to section 5111 gives the trial court discretion as to whether it will or will not enter a decree providing for the maintenance of either of the parties, when no divorce is awarded. This is a judicial discretion which a trial court, in the proper case, must exercise.\\nIn the case at bar, the proper parties are before the court. Apparently each side has fully developed all available pertinent evidence. As stated, this evidence establishes that the husband has wilfully, and without just cause, deserted his wife, and that at this time she has no reasonable expectation that her husband will ever be willing to resume marital relations with her. The wife appears to be an innocent party. Under these circumstances, failure to exercise the judicial discretion vested by the statute in the court constitutes reversible error.\\nNewton E. Hughes is not now in a position to accept the custody of his child. In fact, he contends that its custody should be awarded to W. E. Hughes, the child's grandfather. It is true that the grandfather is a suitable person, willing to assume the responsibility of rearing the child, but Olga Hughes, his mother, also wants the child. The evidence affirmatively shows that she is a fit and suitable parent to have the custody of her boy. So far as this record is concerned, she appears to be an innocent victim of her husband's breach of his marital ties. Under these circumstances, she is entitled to the custody of the child, and the trial court should have so declared.\\nThe trial court refused to allow the wife either temporary or permanent alimony, suit money, or counsel fee. This was error.\\nA husband \\\"is under a legal obligation to support his wife and children, and if, without fault upon their part, he renders it impossible for them to remain under his roof, he cannot by his misconduct escape the performance of the duty which the law imposes upon him.\\\" Owens v. Owens, 96 Va. 191, 195, 31 S. E. 72, 74. The wife asked that she be paid $50.00 per month for the support and maintenance of herself and child. The husband seemed to think that this sum was fair and reasonable, as he testified he had arranged for her to receive this sum in cash and credit. After the final decree dismissing the cause, the wife was left with no assurance that she would receive any sum in cash or credit for the living expenses of herself and child. The parties had submitted their respective contentions, presumably supported by all available evidence, to a court of equity\\u2014a court clothed with full power to settle the rights and equities of the parties. It was the duty of the chancellor to pass upon the question presented, and not force the parties at some future date to again litigate the same issue. The necessities of the wife and child were immediate. She should not have been left to depend for sustenance upon the charity of members of her family, or upon the whim of a husband who had deserted her without just cause.\\nWhere a wife has no separate estate and is a defendant in a divorce suit brought by her husband, \\\"it is proper that she should be allowed a reasonable sum, to be paid by her husband to counsel of her own choice.\\\" Colbert v. Colbert, 162 Va. 393, 174 S. E. 660.\\nCounsel for Olga Hughes filed a petition in this court asking that he be allowed the sum of $100.00 for legal services rendered the wife in this court. ' It is stated in the petition that this is the minimum sum fixed in the schedule of fees adopted by the \\\"Wise County Bar Association for obtaining an appeal and appearing in the Supreme Court of Virginia.\\\"\\nIn Craig v. Craig, 115 Va. 764, 80 S. E. 507, decided January, 1914, this is said:\\n\\\"Counsel for appellee have asked that an allowance for counsel fees be made for services rendered in this court. This we decline to do, being of opinion that the trial court is in a better position to inquire into and do what is right and just between the parties in the first instance than this court. We shall, therefore, affirm the decree and remand the cause, but with leave to counsel for appellee to prosecute their claim for compensation before the law and equity court in the first instance, with the right of appeal to this court if a proper case shall be made for its exercise.\\\"\\nSince the above opinion was published, the General Assembly, upon recommendation of the 1919 Code revisors, has amended Code section 6365, requiring this court to \\\"render final judgment upon the merits, whenever, in the opinion of the court, the facts before it are such as to enable the court to attain the ends of justice.\\\" Under this provision, we have, in cases where it was not necessary to remand the case for the trial court to determine any other issue, allowed counsel an attorney's fee for appearance in this court. See Allen v. Allen, 166 Va. 303, 186 S. E. 17.\\nCounsel is entitled to compensation to be paid by the husband for his appearance both in the trial court, and in this court. As the case will have to be remanded on other questions, we deem it advisable for the lower court to pass upon the total amount of counsel's fee to be allowed.\\nFor the reasons stated, we reverse the decree of the trial court, and remand the case, with the following directions: That the trial court\\u2014\\n(1) Award the custody of the infant to the wife, with leave to the father to see his child from time to time, upon reasonable conditions, to be determined by it;\\n(2) Determine what would be a reasonable and just amount of alimony to which the wife is entitled under the circumstances disclosed, payment of the same to be begun as of the date the decree was entered refusing an allowance of the same to her, the husband to be given credit for any monthly sum or sums he may have theretofore paid his wife;\\n(3) Fix a reasonable compensation to be paid counsel for the wife, for services rendered in the trial court and in this court.\\nIn determining the compensation of counsel, permanent alimony, and the conditions under which the husband may be allowed to see his child, the trial court, upon request, should permit the parties, or either of them, to introduce additional relevant evidence on these issues.\\nReversed and remanded.\"}"

va/2000626.json

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+"{\"id\": \"2000626\", \"name\": \"Kitchen v. Commonwealth\", \"name_abbreviation\": \"Kitchen v. Commonwealth\", \"decision_date\": \"1922-03-30\", \"docket_number\": \"\", \"first_page\": \"700\", \"last_page\": \"702\", \"citations\": \"132 Va. 700\", \"volume\": \"132\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:07:42.228844+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kitchen v. Commonwealth.\", \"head_matter\": \"Richmond.\\nKitchen v. Commonwealth.\\nMarch 30, 1922.\\n1. Appeal and Error\\u2014Neiv Trial\\u2014Verdict not Disturbed where Evidence is Conflicting.\\u2014Where the facts which the jury were justified in finding from, the evidence of the Commonwealth were sufficient to establish the commission of the alleged offense by the accused, although the accused denied every incriminating fact, the issue is determined by the verdict of the jury and will not be disturbed on appeal.\\n2. Instructions\\u2014Repetition\\u2014Reasonable Doubt.\\u2014The refusal of instructions for accused to the effect that the prisoner\\u2019s guilt must be proved beyond a reasonable doubt is not error, where other instructions which emphasized with unnecessary repetition the same rule were given by the court.\\n3. Indictment and Information\\u2014Misnomer\\u2014Amendment\\u2014Code of 1919, Sections 1875, 1878.\\u2014Where the identity of the accused was never at any time questioned or doubted, the action of ' the trial court in permitting the attorney for the Commonwealth to change the name in the indictment from R. A. Kitchen to Ira Kitchen, is fully authorized by Code of 1919, sections 4875, 4878.\\nError to a judgment of the Corporation Court of the city of Roanoke.\\nAffirmed.\\nThe opinion states the case.\\nJohn G. Challice, for the plaintiff in error.\\nJohn R. Saunders, Attorney General; J. D. Hank, Jr., Assistant Attorney General, and Leon M. Bazile, Second Assistant Attorney General, for the Commonwealth.\", \"word_count\": \"678\", \"char_count\": \"4022\", \"text\": \"Prentis, J.,\\ndelivered the opinion of the court.\\nThe accused has been found guilty of rape, and is here assigning four errors.\\n1. The facts which the jury were justified in finding from the evidence of the Commonwealth, are, that the crime was committed upon a female child under the age of fifteen years. The physical condition of the child, who was examined by a physician on the night of the occurrence, showed beyond peradventure that some one had committed the alleged offense, and her testimony that the prisoner ravished her is clear, positive and distinct. While the accused denied every incriminating fact, this issue was determined by the jury and will not be disturbed here; so that the motion to set aside the verdict as contrary to the law and the evidence was properly overruled.\\n2. Two other errors were assigned'\\u2014one the refusal of the court to give two instructions offered by the defendant, and the other the giving of two instructions offered by the Commonwealth. It is unnecessary to say anything as to those which were refused, both of which were to the effect that the prisoner's guilt must be proved beyond a reasonable doubt, except that as the court gave six other instructions which emphasized with unnecessary repetition the same rule, the refusal to give these was justified. The prisoner objects to the giving of two of the instructions offered by the Commonwealth, but no reason is suggested in support of the assignment, except the assertion that there was no credible evidence of the crime. As to this, what we have already said as to the evidence is sufficient in our opinion to justify the instructions, as they fully safeguard every right of the accused.\\n3. The other error assigned is that during the progress of the trial the court permitted the attorney for the Commonwealth to change the name in the indictment from R. A. Kitchen to Ira Kitchen. The identity of the accused was never at any time questioned of doubted, and the action of the court is fully authorized by Code 1919, sec. 4875, which among other things provides that no indictment shall be abated for any misnomer of the accused, but the court may, in case of misnomer, appearing before or in the course of a trial, forthwith cause the indictment or accusation to be amended according to the fact; and Code 1919, section 4878 provides for amending indictments, provided the amendment does not change the nature of the offense charged, with the right to the defendant to have a continuance of the ca,se if the amendment operates as a surprise to him.\\nWe find no reversible error.\\nAffirmed.\"}"

va/2002888.json

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+"{\"id\": \"2002888\", \"name\": \"Hill, Et Al., v. Bell, Et Al.\", \"name_abbreviation\": \"Hill v. Bell\", \"decision_date\": \"1922-06-15\", \"docket_number\": \"\", \"first_page\": \"114\", \"last_page\": \"121\", \"citations\": \"133 Va. 114\", \"volume\": \"133\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:09:31.012521+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hill, Et Al., v. Bell, Et Al.\", \"head_matter\": \"Mytheville.\\nHill, Et Al., v. Bell, Et Al.\\nJune 15, 1922.\\nl.if Adverse Possession\\u2014Wild and Uncultivated Land\\u2014Necessity of Actual Possession.\\u2014In the instant case, a proceeding to ascertain the true boundary line between the lands of plaintiff and defendants, both parties claimed title by adverse possession to the land in dispute, most of which had never been cultivated and was \\u201cgrown up.\\u201d Neither party had actual possession of the land in controversy, but each claimed title to the extent of his boundary wherever that might be.\\nHeld: That the claim of title by adverse possession failed for want of proof, as'to both plaintiff and defendants.\\n2. Boundaries\\u2014Verdict\\u2014Alteration of Verdict\\u2014Judgment of Appellate Court.-\\u2014In the instant case, a proceeding to ascertain the true boundary line between the lands of plaintiff and defendants, the jury returned a verdict for plaintiff, and agreed on the survey of the county surveyor. Plaintiff objected to the verdict as being uncertain and indefinite, and the court directed the jury to retire and find a verdict in proper form. Whereupon one of the jurors asked if the jury had the right to find any other line, and the court verbally instructed the jury that- they were not obliged to follow exactly the lines claimed by the plaintiff or the defendants, to which direction neither party excepted. The jury thereupon rendered a verdict in favor of the plaintiff, but fixed another line. The original verdict was abundantly sustained by the evidence. The corrected verdict took away from the plaintiff a part of the land given to him by the original verdict and also gave him a small triangular shaped piece of land which the original verdict had given to the defendants. Counsel for plaintiff intimated that they were willing to sustain the loss imposed by the corrected verdict, and would enter a disclaimer as to the small triangular piece of land given by the original verdict to the defendants.\\nHeld: That defendants could not be hurt by the acceptance of the amended verdict together with the suggested disclaimer. The case was therefore remanded to the lower court with direction to put the plaintiff upon terms to disclaim of record any right, title, or interest to this small triangular piece of land, or else submit to a new trial.\\nError to a judgment of the Circuit Court of Campbell county in a proceeding to ascertain boundary lines under section 5490 of the Code of 1919. Judgment for plaintiff. Defendants assign error.\\nRemanded.\\nThe opinion states the case.\\nJames H. Guthrie, for the plaintiff in error.\\nRobert A. Russell and W. M. Murrell, for the defendants in error.\", \"word_count\": \"2470\", \"char_count\": \"14064\", \"text\": \"Burks, J.,\\ndelivered the opinion of the court.\\nThis is a proceeding under section 5490 of the Code to ascertain the true boundary line between the lands of the plaintiff and the defendants. There was a verdict and judgment for the plaintiff, and the defendants assign error.\\nThe plaintiff (Bell) claimed in his notice that the true boundary line was as follows: \\\"Beginning at a point on Seneca creek, just below the mouth of Pheasant branch, thence in a southerly and southwesterly direction along an old fence row to a point on the Marysville and Long Island road near the Island Gate.\\\" The plaintiff claimed title both by his title papers and by adverse possession for the statutory period. The defendants, following the provisions of the statute, filed no plea, but filed a statement of their grounds of defense in writing. These grounds were (1) that the old fence row was not the line between the plaintiff and the defendant; (2) that the plaintiff has not had adverse possession for the statutory period, or any legal possession, but on tbe contrary tbe defendants have bad sucb possession; and (3) tbat tbe true line is tbat shown by tbe survey of tbe land made by Rufus A. Murrell about tbe year 1875, and tbat defendants and those under whom they claim bave bad adverse possession for a long time prior to tbat time, \\\"and since then to tbe present time.\\\" Upon these pleadings tbe parties went to trial; tbe statute providing tbat tbe parties should be deemed to be at issue upon filing tbe grounds of defense, and without any replication.\\nIn vacation, and before tbe issue was made up, tbe judge of tbe trial court, on tbe motion of tbe petitioner, directed tbe county surveyor of Campbell county to \\\"make such surveys in this boundary controversy as be may deem necessary, and within reasonable limits, sucb as may be required by any party in interest; tbat said survey be made after reasonable written notice to tbe above mentioned parties both petitioner and defendants,'and does further direct the said surveyor to report bis acts hereunder to tbe court in this cause by filing plat and report before tbe September term, 1920, in tbe clerk's office of this court.\\\" This survey was made and reported, to the court pursuant to tbe vacation order aforesaid.\\nTbe quantity of land in dispute is 19^ acres, which is described by tbe plaintiff in bis testimony, as follows: \\\"Most of tbe land in dispute is grown up and there is no sign tbat any of it has ever been cultivated, except what I bave cultivated; along the creek it is mostly bills and bluffs, only some very small flats.\\\" Neither party bad actual possession of tbe land in controversy, but each claimed title to the extent of bis boundary wherever tbat might ;be. jh\\nTbe claim of title by adverse possession failed for want of proof, as to both plaintiff and defendants. The lands of both parties abutted on Seneca creek, into which there flowed two branches 1,179 feet apart at the creek, and it became all important to determine which of the two was known as \\\"Pheasant branch,\\\" as that was one of the calls in the Murrell survey. Upon this subject the testimony was very conflicting, with probably the preponderance in favor of what is called the upper branch. The surveyor, therefore, could not use either as a fixed point, but had to start at some other point about which there was no dispute. Both parties accepted the Murrell survey as correct, and that is about the only question in the case upon which all parties agreed. On nearly all other questions the witnesses were far apart. This Murrell survey is also spoken of as the \\\"Bruce Island Plat.\\\" The two are the same.\\nIn order to get an undisputed point of beginning, the surveyor went upon another tract, and, using the Bruce Island Plat, took as his first station the point where Rocky branch flows into Seneca creek, and ran the line in accordance with that plat, thence up the meanderings of that branch to a point near its source, and thence still with the courses of said Bruce Island Plat to the Marysville road, but the distance given in said plat fell 442 feet short of said road; thence crossing the road near Island Gate and continuing the same course and distance given on said plat to a station, and thence with the course given on said plat to Seneca creek, but the distance given in the last call fell short of reaching the creek by 330 feet. Of this latter shortage, Farmer, a surveyor who testified for the defendant, says, this \\\"330 feet is one 'out' by a two pole chain, the kind that was formerly in general use by surveyors.\\\" It will be observed that in the above survey, the county surveyor in every instance followed the course given by the Bruce Island Plat, after making proper changes for variation in the magnetic needle, but in two instances the distances fell short. The lines thus run brought the survey to an end at Seneca creek at the point where the lower branch empties into it. In his report to the court, the surveyor says that this survey \\\"was made by the Bruce Island Plat under which C. Booker Bell holds title.\\\" In other words, this is the line as claimed by Bell. The surveyor also ran three other lines which are shown on his plat. They are designated, respectively, \\\"Line to which A. C. Davis has held possession before the survey,\\\" \\\"Line called for in deed from Hill & Nichols to A. C. Davis,\\\" and \\\"Bruce Island Plat run from birch just below mouth of Upper Branch.\\\" A. C. Davis is the defendant in possession of the land in controversy.\\nThe defendants offered in evidence E. R. Farmer, a surveyor from South Boston, and certain plats prepared by him to show that the \\\"Pheasant branch\\\" mentioned in the record was the upper branch and not the lower. But he took as his starting point the rock corner at the \\\"Island Gate\\\" on the Marysville road, because he says the plaintiff had told him that was his corner. He says, \\\"Mr. Bell told me that was his corner, and I took it to be the location of the stump in the Upton line on Marysville road called for in the notes of Rufus A. Murrell's survey, but the Murrell notes don't fit to the Island Gate, and I changed the courses to agree with the distances, which is the usual method of adjusting discrepancies of that character in surveys.\\\" The plaintiff testified, \\\"I don't know anything about a corner stump on the Marysville road. Never saw a line stump there: there is a hole in the ground near the Island Gate in which there is a rock, but I do not know that it is a stump hole, or the line or corner called for in the deeds.\\\" Farmer also assigned other reasons for thinking that the upper branch was \\\"Pheasant branch,\\\" and there were a number of other witnesses who testified that the upper branch was \\\"Pheasant branch.\\\"\\nWith all this evidence before them, the jury-brought in the following verdict: \\\"We, the jury, find for the plaintiff, and agree on the survey of Fred Kabler, September 10, '1920,\\\" which is the survey of the county surveyor hereinbefore referred to bearing the date last mentioned.\\nThe plaintiff objected to the verdict \\\"as being uncertain and indefinite and not in proper form,\\\" and thereupon the court directed the jury to retire to their room and find a verdict in proper form. Whereupon one of the jurors asked the court if the jury had the right to find any other line as the true line, and the court gave to the jury the following verbal instruction: \\\"You are not obliged to follow exactly the lines claimed by the plaintiff or the defendant, but should find such verdict and fix such line as the law and the evidence establishes as the true line.\\\" To which direction neither party excepted. Then the jury again retired to their room, and some time thereafter returned into court and rendered the following verdict, to-wit: \\\"We, the jury, find for the plaintiffs, and ascertain the true boundary line between the plaintiff C. Booker Bell and the defendants, the coterminous land owners, to be as follows: Beginning at the Island Gate, thence a straight line to 'hollow maple' on Seneca creek, as shown on the plat of Fred Kabler, filed with his report in this ease.\\\"\\nThe original verdict, though general, fixed as the true boundary line between the litigants the line marked on the Kabler survey, \\\"Bruce Island plat run from mouth of Rocky branch.\\\" This finding was abundantly sustained by the evidence. The corrected verdict, however, giving a straight line from Island Gate to hollow maple, while sustained by the testimony of the plaintiff and one of his witnesses, is not supported by the title papers. The verdict, as corrected and accepted by the court, took away from the plaintiff a part of the land given to him by the original verdict and also gave him a small triangular shaped piece of land which the original verdict had given to the defendants. During the oral argument, counsel for the plaintiff (Bell) stated that they were willing to sustain the loss imposed by the corrected verdict, and would enter a disclaimer as to the small triangular piece of land lying east of the straight line fixed by the corrected verdict which was given to the defendants by the original verdict.\\nIf the original verdict was correct as to the location of the dividing line (and we cannot say that it was not), the defendants cannot be hurt by the acceptance of the amended verdict and the disclaimer aforesaid, for in this way they get more than they would have gotten by the original verdict if it had specifically located the line found by the jury. The jury had the benefit of the testimony and drawings of the surveyors, one presenting the view of each side of the controversy, as well as the testimony of a number of witnesses, and it is not likely that any more light would be thrown on the subject by any further surveys. Their finding under these circumstances should not be disturbed if the rights of the parties will not be violated thereby. The plaintiff, as we have seen, has signified his willingness to accept the verdict and make the disclaimer aforesaid, and this action on his part will not be prejudicial to the rights of the defendants as ascertained by the first verdict. The case, therefore, will be remanded to the Circuit Court of Campbell county with direction to put the plaintiff upon terms to disclaim of record any right, title, interest, or estate, in and to so much of the land shown by the Kabler line, run from the mouth of Rocky branch, as lies east of the straight line fixed by the verdict of the jury, or else submit to a new trial. Fry v. Stowers, 98 Va. 417, 36 S. E. 482. If the plaintiff shall make the disclaimer, the circuit court shall cause the true boundary line as fixed by the verdict of the jury and the disclaimer aforesaid, to be clearly and distinctly marked before entering judgment, and then enter up judgment accordingly; and upon entering judgment it shall further direct such record thereof to be made as appears to be proper. If the plaintiff declines or fails to make such disclaimer, the said circuit court shall award the defendants a new trial.\\nThere are two minor assignments of error to rulings of the trial court on the admissibility of evidence. We are of the opinion that the defendants were not prejudiced by either of them, and that they are not of sufficient general interest to warrant discussion.\\nThe defendants in error will be awarded their costs in this court as the parties substantially prevailing.\\nRemanded.\"}"

va/2013093.json

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+"{\"id\": \"2013093\", \"name\": \"Hughes, Guardian, v. City of Staunton\", \"name_abbreviation\": \"Hughes v. City of Staunton\", \"decision_date\": \"1899-11-16\", \"docket_number\": \"\", \"first_page\": \"518\", \"last_page\": \"520\", \"citations\": \"97 Va. 518\", \"volume\": \"97\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:13:05.156212+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hughes, Guardian, v. City of Staunton.\", \"head_matter\": \"Richmond.\\nHughes, Guardian, v. City of Staunton.\\nNovember 16, 1899.\\n1. Taxation\\u2014Funds of Ward\\u2014Change of Residence of . Guardian and Ward After Qualification of Guardian.\\u2014Although a guardian qualify as such in one city of this State, and at that time he and his ward' reside there, and the funds \\\"of the ward are held there, and the guardian settles all of his ew parte accounts before a commissioner of the court of that city, yet if the guardian and ward subsequently remove to another city of this State, and the funds of the ward are invested in the latter city, such funds are properly taxable in the latter city and not in the former.\\nError to a judgment of the Corporation Court of the city of Staunton, rendered March 29, 1899, on a motion to correct an erroneous assessment of personal property, wherein the plaintiff in error ivas the plaintiff, and the defendant in error was the defendant.\\nReversed.\\nThe opinion states the case.\\nR. P. Bell, for the plaintiff in error.\\nCarter Braxton, for the defendant in error.\", \"word_count\": \"887\", \"char_count\": \"4968\", \"text\": \"Cardwell, J.,\\ndelivered the opinion of the court.\\nPlaintiff in error, as guardian for her infant children, G'. M. and Jeannie Alexander, on the 29th day of March, 1899, made application, in accordance with the statute providing for the correction of erroneous assessment of property for taxation, to the Hustings Court of the city of Staunton for relief against certain taxes erroneously assessed against her for the year 1898 by tbe city of Staunton, on tbe ground that tbe said city had no right to assess tbe funds in her- bands belonging to ber said infants, as both she and tbey lived in tbe city of Lynchburg, where tbe funds were invested and taxed, and tbe city tax levied by tbe city of Lynchburg thereon for tbe year 1898 bad been paid.\\nThe Hustings Court for tbe city of Staunton, being of opinion that tbe funds in question were properly assessable in tbe city of Staunton, because tbe guardian bad qualified there, and bad there made ex parte settlements of her accounts as such, dismissed ber application.\\nThere is no controversy as to tbe facts relied on by plaintiff in error in support of her application, and tbey are as follows:\\nPlaintiff in error, at the t\\u00fane she qualified as guardian for ber children, in tbe Hustings Court of Staunton, in tbe year 1893, resided in tbe city of Staunton, and there made ex parte settlements of ber guardianship accounts before tbe commissioner of accounts of that court, from time to time, which were recorded in its clerk's office, and from tbe last of which settlements it appears that she bad in her bands as such guardian a fund amounting to $9,105.05. This fund has been assessed for taxation in tbe city of Staunton each year since tbe guardian's qualification, although she and ber wards several years ago moved to tbe city of Lynchburg, where tbey have ever.since resided. Tbe funds in tbe bands of tbe guardian are invested in tbe city of Lynchburg for tbe most part, none of them being invested in tbe city of Staunton. -In tbe spring of 1898 these funds were placed on the personal property tax books of tbe city of Staunton, and a State tax, as well as a city tax in favor of tbe city of Staunton, was levied thereon, and the State tax, amounting to $36.43, paid to tbe collector of State taxes in Staunton; but plaintiff in error refused to pay tlie city taxes claimed by tlie city of Staunton, because tbe funds in her bands bad also1 been assessed, and properly, as she was advised, for city taxation in tbe city of Lynchburg for tbe year 1898, and this tax, amounting to $150, bad been paid by ber to tbe collector of city taxes in tbe city of Lynchburg.\\nSection 1043 of tbe Code provides that cities shall have the right to make their annual levy, for tbe purposes stated in tbe statute, upon any property therein, and on such other subjects as may at tbe time be assessed with State taxes against persons residing therein.\\nUnder this statute, it is clear that tbe city of Lynchburg bad tbe right to assess a tax for city purposes for tbe year 1898 upon tbe funds in tbe hands of plaintiff in error; and tbe funds having been properly assessed and taxed for city purposes in the city of Lynchburg, and the tax thereon paid, there was no1 right in tbe city of Staunton to levy and collect a like tax upon the funds.\\nWe are of tbe opinion, therefore, that tbe order of tbe Hustings Court of tbe city of Staunton dismissing plaintiff in error's application to have corrected tlie assessment of tbe funds in ber bands, belonging to ber wards, for taxation for city purposes in tbe city of Staunton for tbe year 1898, is erroneous, and should be reversed and annulled; and this court will enter such order as tbe Hustings Court of Staunton should have entered, directing that tbe assessment of tbe funds in tbe bands of plaintiff in error placed upon the personal property tax book of tbe city of Staunton, for city taxation for tbe year 1898, be stricken therefrom.\\nReversed.\"}"

va/2019197.json

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+"{\"id\": \"2019197\", \"name\": \"Griffin, Receiver, v. Woolford\", \"name_abbreviation\": \"Griffin v. Woolford\", \"decision_date\": \"1902-06-26\", \"docket_number\": \"\", \"first_page\": \"473\", \"last_page\": \"480\", \"citations\": \"100 Va. 473\", \"volume\": \"100\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T18:28:44.033940+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Griffin, Receiver, v. Woolford.\", \"head_matter\": \"Wytheville.\\nGriffin, Receiver, v. Woolford.\\nJune 26, 1902.\\n1. Stabe Decisis&emdash;Obiter Opinions.&emdash;An opinion expressed in one case is not to be regarded as binding authority in subsequent cases unless the case called for its expression.\\n2. Limitation op Actions&emdash;Non-Residence&emdash;Code, Section 2938.&emdash;The non-residence of the maker of note, who was never a of this State, does not prevent the running of the act of limitations on the note. Such non-resident is not within the of section 2933 of the Code, as it existed prior to the amendment of Acts 1897-\\u20198, page 441. Wilkinson v. Holloway, 7 Leigh, 277, explained and distinguished.\\n3. Residence.&emdash;Residence, within the meaning of the act of limitation, is the permanent abiding or dwelling in a place'for a length of time, as contra-distinguished from a mere temporary locality of existence.\\nError to a judgment of the Circuit Court of Roanoke city, rendered January 30, 1902, in an action of debt, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.\\nAffirmed.\\nThe opinion states the ease.\\nMalcolm Griffin and Scott & Staples, for the plaintiff in error.\\nEverett Perkins, for the defendant in error.\", \"word_count\": \"2395\", \"char_count\": \"13810\", \"text\": \"Whittle, J.,\\ndelivered the opinion of the court.\\nThe controversy in this case arises out of the following facts: On January 22, 1892, O. A. Woolford and the defendant in error, O. W. Woolford, made two notes to the Hew Lansdowne Land Company, which were dated and made payable at Roanoke, Va., one and two years after date, respectively. These notes were endorsed and delivered by the payee to the Lansdowne Improvement Company. Subsequently, plaintiff in error, having been appointed receiver of the latter company, recovered judgment upon the notes against C. A. Woolford and the endorser, the Hew Lansdowne Land Company. C. W. Woolford was made a defendant to that action, but was not served with process.\\nSo far 'as the record discloses, no further effort was made to collect these notes from C. W. Woolford until the fall of 1901, when Receiver Griffin instituted an action of debt against him, with an ancillary attachment against certain parties who were ascertained to be indebted to him, in the Circuit Court of Roanoke. Affidavit having been made that C. W. Woolford was a non-resident, he was proceeded against by an order of publication. To that action the defendant filed pleas of nil debet, and the statute of limitations.\\nThere was a special replication to the latter plea, that at the time of the execution of the notes in question the defendant was a resident of the State of Virginia, and by departing without the same, within less than twelve months thereafter, obstructed, and, by ever since remaining a non-resident of the State, had ever since obstructed the plaintiff in his right of action upon the notes. To that replication the defendant filed a special rejoinder putting in issue all its averments.\\nBy agreement of parties all matters of law and fact were submitted to the court, which rendered judgment for the defendant.\\nThe provision relied on to defeat the bar of the statute of limitations is found in section 2933 of the Code of 1887, which is as follows:\\n\\\"Where any such right as is mentioned in this chapter shall accrue against a person who had before resided in this State, if such person shall, by departing without the same, or by absconding or concealing himself, or by any other indirect ways or means, obstruct the prosecution of such right, the time that such obstruction may have continued shall not be computed as any part of the time within which the said right might or ought to have been prosecuted. But this action shall not avail against any other person than him so obstructing, notwithstanding another might have been jointly sued with him, if there had been no such obstruction. And upon a contract which was made and was to be performed in another State or country, by a person who then resided therein, no action shall be maintained after the right of action thereon is barred by the laws of such State or country.\\\"\\nThe plaintiff in error rests his case on the affidavit of the non-residence of the defendant in error, upon which the order of publication was awarded, and the inference that the notes were made in Virginia, to be drawn from the fact that they purport to have been dated at Boanoke.\\nOn the other hand, it affirmatively appears from the evidence, that the defendant in error was a resident of the city of Baltimore, in the State of Maryland, and had never resided in the State of Virginia. Indeed, it was shown that he had never been to Boanoke on more than three occasions, probably only twice, and then on business trips, neither of which lasted longer than a day. The dates of these visits are not fixed with accuracy, the witness expressing the opinion that they were during the years 1890, 1891, and 1892.\\nThe sole question submitted for decision is whether or not, under that state of facts, the plaintiff in error has brought his case within the provisions of the statute.\\nHe relies upon the case of Wilkinson v. Holloway, 7 Leigh, 277, as decisive of the question. That case arose under sec. 14, Ch. 128, 1 Rev., Code 1819, which, in the case of Ficklin v. Carrington, 31 Gratt. 219, was declared to be substantially of the same import as section 2933, though differing somewhat in phraseology. The last paragraph of the syllabus of that case is as follows:\\n\\\"A debt is contracted at Petersburg, in Virginia, for goods sold there. The debtor resides at the time, and continues to reside, in North Carolina. The creditor brings suit in a court of this State against the debtor, who pleads the statute of limitations in bar. Held, by the 14th section of that statute, 1 Rev. Code, ch. 128, p. 491, he is precluded from making such defence.\\\"\\nNotwithstanding that statement 'by the distinguished reporter, his report in the case does not clearly show whether Holloway was a resident of Virginia, or of North Carolina, at the time he contracted the debt with Wilkinson & Co., and at the time it became payable. Notbiug appears in the statement of the facts of the case as to his residence, and Judges Brockeubrough and Cabell do not discuss the subject in their opinions. Nor does the language of Judge Brooke remove the uncertainty. He says: \\\"As the debt of Holloway to the plaintiff was contracted in Virginia, and he soon afterwards went or returned to North Carolina, and has resided there ever since, I cannot see how he Pan avail himself of the statute of limitations.\\\"\\nJudge Carr, on the other hand, seems to have been of opinion that PIblloway was a resident of Virginia when the debt was contracted, for he says: \\\"He left Virginia as soon as he executed the instrument, and' resided in North Carolina., thereby obstructing the plaintiff's action.\\\"\\nMr. Johnson, of counsel for Holloway, in adverting to the question as to where the bond was executed, remarked that, -\\\"To say the least, the facts touching this point do not appear in the record with sufficient certainty.\\\"\\nAnd, in speaking of the case, the author' in 1 Kob. New. Pr., p. 620, observes: \\\"A plaintiff had the benefit of this provision in an action against a defendant who, soon after executing a note, went from Virginia to reside in another State, thereby obstructing the plaintiff's action.\\\"\\nThus it appears that the value of Wilkinson v. Holloway as a precedent to 'bring this case within the influence of sec. 2933 is greatly impaired, if not destroyed, by the uncertainty of the facts upon which the decision rests.\\nBut aside from these considerations, it is apparent that but little attention was paid by the judges to that phase of the case. That question was of minor importance, and not at all necessary to a decision of that case, in as much as Holloway's original liability was a bond debt, which was not barred at the date of the institution of the suit against him.\\nThe real question discussed and decided was that where an attorney at law, employed to collect a debt, took in satisfaction the debtor's assignment of a bond of a third .party, which was put in suit by the creditor, who paid the cost of the litigation, the creditor did not thereby ratify the act of the attorney in thus commuting the original debt, and, the recovery on the assigned bond having proved unavailable, the debtor's original liability continued.\\nIt is obvious that the remarks of the judges as to the residency of Holloway, if not obiter, were merely incidental, and had no bearing upon the decision of the case.\\nIn determining the weight to be attached to such observations, it would be well to bear in mind the remarks of Chief-Justice Marshall, in that connection, in Marbury v. Madison, 1 Cranch. 127 and 174:\\n\\\"It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very, point is presented. The reason of this maxim is obvious. The question actually before the court is investigated with care and considered in its full ex tent. Other principles which may serve to Al\\u00fastrate it are considered in their relation to the ease decided, hut their possible bearing on all other cases is seldom completely investigated. The eases of Ex-Parte City Bank, 3 How. 292, and Peck v. Jenness, 7 How. 612, are illustrations of the rule that any opinion given here or elsewhere, cannot be relied on as a binding authority, unless the case called for its expression. Its weight of reason must depend on what it contains.\\\"\\nIn Markle v. Burch, 11 Gratt. 29, the court said: \\\"In Wilkinson v. Holloway, 7 Leigh, 277, four of the five judges who decided that case held that the debt due to the attaching creditors was a bond debt, and that therefore the statute was no bar to the recovery.\\\"\\nMr. Barton, in 1 Bar. L. Pr. 71, remarks: \\\"The apparently conflicting opinion rendered in the case of Wilkinson v. Holloway, 7 Leigh, 277, is explained by the court in Markle's Administrator and Others v. Burch's Administrator, by the statement, that the former case was upon a bond, and the statute would not have constituted a bar independent of any question of the debtor's non-residence.\\\"\\nAnd in 4 Min. Inst., Pt. I. (2d ed.), 555, it is said: \\\"It will be observed that the statute contemplates that the defendant shall once have been a resident of Virginia, at some time before the cause of action accrued, and not simply that the cause of action arose in Virginia. Hence the case of Wilkinson v. Holloway, 7 Leigh, p. 297 (in which it was held that a resident of Morth Carolina who contracted a debt in Petersburg, Va., and immediately returned to his home in iSTorth Carolina, thereby obstructing the plaintiff's remedy, and thereby precluded the defence of the statute) is no- longer maintainable.\\\"\\nIt will thus be perceived that, while the learned author accepted the reporter's version of the facts in Wilkinson v. Holloway, that Holloway was a resident of isTorth Carolina, he entertained, no doubt, that a debtor's prior residence in Virginia is essential to bring a case within the provisions of sec. 2933.\\nIt may be further remarked that in the year 1898 the Legislature amended sec. 2933, so as to dispense with prior residence, an amendment which would have been wholly unnecessary, if the construction contended for by counsel for plaintiff in error is correct. Acts 1897-8, p. 441.\\nThe conclusion having been reached that Wilkinson v. Holloway does not sustain the position of plaintiff in error, there is no difficulty in arriving at a proper construction of the statute. It means, what it so plainly declares: That where a right of action accrues against a person who had resided in this State before such right accrued, and, after such right accrued, by departing without the same . . . obstructs the prosecution of such right, the time during which such obstruction continues is not to be computed as any part of the time, within which the right might or ought to be prosecuted. Ficklin v. Carrington, 31 Gratt. 220; Dorr v. Rohr, 82 Va. 361; Brown v. Butler, 87 Va. 625; Embrey v. Jemison, 131 U. S. 172.\\nAs to what constitutes residence under the Virginia statutes, Mr. Minor says: ' '\\n\\\"Residence or inhabitancy (for they seem to have the same meaning) is defined to be the place of abode, dwelling, or habitation for some continuance of time. To reside in a place is to abide or dwell there permanently for a length of time, as contradistinguished from a mere temporary locality of existence.\\\" 4 Min. Inst. (Pt. I.), p. 367.\\nMr. Barton gives the following definition: \\\"He is a resident who, though absent in person, has here his home and permanent abiding place; and 'he is a non-resident who, though present, has his home and permanent abiding place in some other State or country.\\\" 2 Bar. Law Pr. 915. Long v. Ryan, 30 Gratt. 720.\\nIn the light of the foregoing definitions, it is apparent from an analysis of the statute, that the case of the plaintiff in error falls under neither of its provisions (while a concurrence of both is essential to stop the running of the statute of limitations)-\\u2014 not under the first, because the defendant in error had not resided in the State before the right of action accrued; and not under the second, because he did not depart without the same, after such right had accrued, and his previous departure could not have obstructed the prosecution of the right of action.\\nIt will be remembered that Woodford's last visit to- Roanoke was in 1892, and the first note was not payable until January 2, 1893.\\nThere is no error in the judgment complained of, and it must be affirmed.\\nAffirmed.\"}"

va/2024614.json

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+"{\"id\": \"2024614\", \"name\": \"Richmond Passenger & Power Company v. Gordon\", \"name_abbreviation\": \"Richmond Passenger & Power Co. v. Gordon\", \"decision_date\": \"1904-03-10\", \"docket_number\": \"\", \"first_page\": \"498\", \"last_page\": \"508\", \"citations\": \"102 Va. 498\", \"volume\": \"102\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T19:15:53.276347+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Richmond Passenger & Power Company v. Gordon.\", \"head_matter\": \"Richmond.\\nRichmond Passenger & Power Company v. Gordon.\\nMarch 10, 1904.\\n1. Street Railways\\u2014Persons and Vehicles Crossing Track\\u2014Foresight.\\u2014A street-ear company owes the duty of foresight to persons and vehicles crossing its tracks in a city, and if the failure to keep a proper lookout was the proximate cause of an injury inflicted upon a person crossing its track, it is liable, notwithstanding the fact that the person injured was guilty of negligence in, going upon the track.\\n2. Negligence\\u2014Concurrent negligence of Plaintiff and Defendant.\\u2014If the proximate cause of an injury is the negligence of both plaintiff and defendant concurring and co-operating together, the plaintiff cannot recover.\\n3. Instructions\\u2014Conflicting Evidence\\u2014Different Theories of Case.'\\u2014\\u25a0 Where there is evidence tending to prove that the injury sued for was caused by the concurrent and co-pperative negligence of both plaintiff and defendant, and also evidence tending to prove that the defendant\\u2019s negligence alone was the proximate cause of the injury, each party has the right to have his view or theory of the case presented to the jury by proper instructions for that purpose.\\n4. Ordinary Care\\u2014Street Railways\\u2014Crossing Tracks.\\u2014While it is difficult to frame a perfectly clear and accurate definition of the term \\u201cordinary care,\\u201d a jury could not have been misled by an instruction which told them that it was not negligence as a matter of law for one about to. cross a street railway to omit to look and listen for cars, and that the question was whether men of ordinary prudence, exercising ordinary care and prudence, would have thought it unnecessary to do so.\\n5. Instructions\\u2014negligence\\u2014Burden of Proof.\\u2014In a case involving questions of negligence and contributory negligence, it is not error to instruct the jury as to who has the burden of proof.\\nError to a judgment of the Law and Equity Court of the city of Richmond in an action of trespass on the case, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.\\nReversed.\\nThe opinion states the case.\\nHenry Taylor, Jr., for the plaintiff in error.\\nMeredith & Cocke, for the defendant in error.\", \"word_count\": \"3681\", \"char_count\": \"21012\", \"text\": \"Buchanan, J.,\\ndelivered the opinion of the court.\\nThis action was instituted by John W. Gordon to Recover damages for injuries done him at a street crossing in the city of Richmond by the alleged negligent -running of an electric street railway car operated by the Richmond Passenger & Power Companv.\\nUpon the trial of the cause the plaintiff asked for eight instructions, and the defendant for three. All the instructions asked for were given as asked, or with such modifications as the court saw proper to make. Eo objections are made here to instructions numbered 2, 3, 4, 5, and 8, given for the plaintiff, nor to instruction \\\"a\\\" given for the defendant. The assignments of error chiefly relied on are the giving of the plaintiff's instruction Eb. 1, and the refusal of the court to give the defendant's instructions \\\"b\\\" and \\\"c\\\" as asked, and in giving them as modified by the court.\\nThe following is a copy of instruction ETo. 1:\\n\\\"If the jury find that the plaintiff was guilty of want of reasonable and ordinary care in attempting to cross the tracks of the defendant under the circumstances referred to, then he is not entitled to recover, unless they believe from the evidence that the motorman could have avoided the accident by the use of ordinary care after lie saw, or by the use of ordinary care might have seen, that the plaintiff was on the track, or very near thereto, and driving towards the same, and was in danger of being struck by the car; and, if they shall so believe, then they must find for the plaintiff.\\\"\\nThe objection made to that instruction is, first, that there was no evidence to show that the motorman could have avoided the accident by the exercise of ordinary care after he saw the plaintiff's peril; and second, that the proposition that they must find for the plaintiff if the jury believed that the motorman might, by the exercise of ordinary care, have seen the plaintiff's peril, and avoided the accident, is not law.\\nThere is no evidence that after the motorman saw the plaintiff's danger he could have avoided the accident; but there is evidence tending to prove that, if the motorman had been exercising ordinary care as his car approached the crosing, he could have seen the plaintiff's peril in time to have prevented the injury. There is evidence tending to show that the plaintiff, as he drove along Eloyd avenue towards the crossing where that avenue intersects Harrison or Beech street, stopped or checked the one-horse vehicle in which he, his wife, and son were riding about forty feet from the crossing at the time a north-bound street car crossed Eloyd avenue, and that he then proceeded towards the crossing; that the north-bound car passed the car going south, which did the injury, from sixty to seventy-five feet north of Eloyd avenue; that from that point there was nothing to prevent the motorman on the south-bound car from seeing the plaintiff's vehicle as it approached the street car track; that from the point where the cars passed each other to the point where the plaintiff's vehicle was struck was one hundred feet or more; that a car running at the rate of six or seven miles an hour, as the motorman said his.car was running, could, under favorable circumstances, be stopped in about a car length, which was shown to be about thirty-five feet, and that the car was actually stopped in about forty-five feet after tbe motorman saw the plaintiff's vehicle. This evidence was sufficient to justify the court in giving the instruction in question, under a long line of decisions of this court.\\nIn the case of R. & D. R. R. Co. v. Anderson, 31 Gratt. 812, 31 Am. Rep. 750, decided a quarter of a century ago, it was held, Judge Burks delivering the opinion of the court, that, though the plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse the defendant. To sustain the conclusion reached in that case the learned judge approved and followed the decision of the House of Lords in the case of Radley v. London etc. Ry Co., 1 App. Cases (Law Rep. 1875-'76), 754, 759, which cites and affirms Davies v. Mann, 10 M. & W. 545, and Tuff v. Warman, 5 C. B. (N. S.) 573.\\nIn the case of Marks etc. v. Petersburg R. R. Co., 88 Va. 1, 10, 13 S. E. 299, which was an action for damages for causing the death of a traveller at a street crossing by the defendant railroad company's cars, it was said by Judge Lewis, in discussing the subject of contributory negligence: \\\"If a person attempts to cross a railroad at a highway crossing without using his senses of sight and hearing, even though the company be negligent, the law, as well as common prudence, condemns his act as careless. But this is a mere presumption, which may be repelled by evidence showing that the case is within one or more of the exceptions to the general rule before mentioned. In the absence of such evidence, however, the contributory negligence of such person, when injured, will preclude a recovery, unless the company might, by the exercise of ordinary care on its part, have avoided the consequences of the plaintiff's negligence.\\\" \\\"This qualification of the doctrine of contributory negligence,\\\" he continues, \\\"is laid down in the leading case of Tuff v. Warman, 2 C. B. (N. S.) 740, and so often recognized by this court.\\\" After citing a number of the decisions of this court, he adds: \\\"Applying this test to the present case, we are of opinion that the plaintiff is not entitled to recover, for it is manifest that ordinary care on the part of the defendant could not have discovered the negligence of the deceased in time to avoid the accident.\\\"\\nIn the case of the Seaboard, etc., R. R. Co. v. Joyner, 92 Va. 354, 23 S. E. 773, this court, in considering the question of the duty of a railroad company to avoid injuring a trespasser, said: \\\"The law upon this subject is, we think, properly stated in the ninety-ninth section of Shearman & Redfield on the law of ISTegligence (4th Ed.), where it is said that: 'The plaintiff should recover, notwithstanding his own negligence exposed him to the risk of injury, if the injury of which he complains was approximately caused by the omission of the defendant, after having such notice of the plaintiff's danger as would put a prudent man on his guard, to use ordinary care for the purpose of avoiding such injury. It is not necessary that the defendant should actually know of the danger to which the plaintiff is exposed. It is enough if he have sufficient notice or belief to put a prudent man on the alert, and he does not take such precautions as a prudent man would take under similar notice or belief.' \\\" To the same effect is Tucker s case, in 92 Va. 549, 24 S. E. 229, and Dunnaway's in 93 Va. 29, 36, 37, 24 S. E. 698.\\nIn the ease of B. & O. R. R. Co. v. Few's Ex'r, 94 Va. 82, 89, 26 S. E. 406, it was held that a railroad company is liable for a personal injury inflicted on a traveller at a public crossing if its agents or servants in charge of a moving train saw him in a position of danger, or by the use of diligence might have seen him, and failed to stop the train, and prevent it from injuring him.\\nIn Blankenship's case, 94 Va. 449, 457, 27 S. E. 20, 22, it was said, in discussing this question and explaining what was meant by certain language used in Dunnaway's case, supra, that: \\\"By the use of the language Svhen the trespasser is discovered, or by ordinary care and caution might have been discovered/ it was not intended to say that under ordinary conditions it was the duty of the railroad company to keep a lookout for trespassers (for the question was not involved in that case), but to declare, where it had such notice or belief that some one might be in danger as ought to put a prudent man on the alert, it became the company's duty to be on the lookout, and it might be held responsible for injuries done a trespasser under such circumstances, not only after his danger was discovered, but where, by ordinary care and caution, it might have been discovered, unless it did all that could be done to avoid injuring him consistently with its higher duties to others.\\\"\\nIn Washington etc. R. Co. v. Lacy, 94 Va. 460, 476, 26 S. E. 834, 839, which was also a street crossing case, it was said, after declaring what the duty of a traveller was in approaching a street crossing over which a steam railroad was operated: \\\"If he fails to use these necessary precautions, and injury ensues, he cannot recover, unless the defendant company, by the exercise of ordinary care and diligence, might have prevented the injury after it discovered, or ought to have discovered, his peril.\\nIn C. & O. Ry. Co. v. Rodgers, 100 Va. 324, 325, 41 S. E. 732, where the party injured was walking on the defendant company's track at a point where persons were accustomed to walk, it was held that in such a case a defendant was liable for the injury inflicted upon the plaintiff, notwithstanding the latter's negligence, if, by the exercise of reasonable care, the plaintiffs danger could have been discovered in time to save him.\\nRichmond P. & P. Co. v. Steger, 101 Va. 319, 43 S. E. 612, and Richmond Traction Co. v. Martins Adm'x, ante p. 205, 45 S. E. 886, are to the same effect. In the last-named case, decided at the December term, 1903, it was said by Judge Whittle, speak ing for the court, that: \\\"The well-known rule in this class of cases is that a plaintiff seeking to recover damages for an injury caused by the negligence of the defendant must himself be free from negligence, and, if it appears that his negligence has contributed as an efficient cause to the injury of which he complains, the court will not undertake to balance the negligence of the respective parties for the purpose of determining which was most at fault. The law recognizes no gradations of fault in such case, and, where both parties have been guilty of negligence, as a general rule, there can be no recovery. There is really no distinction between negligence in the plaintiff and negligence in the defendant, except that the negligence of the former is called 'contributory negligence.'\\n\\\"The general rule adverted to is subject, however, to the qualification that, where the negligence of the defendant is the proximate cause of the injury, and that of the plaintiff only the remote cause, the plaintiff may recover notwithstanding his negligence; the doctrine in that respect being that the law regards the immediate or proximate cause which directly - produces the injury, and not the remote cause which may have antecedently contributed to it. From that principle arises the well-established exception to the general rule that if, after the defendant knew, or, in the exercise of ordinary care, ought to have known, of the negligence of the plaintiff, it could have avoided the accident, but failed to do so, the plaintiff can recover. In such case the subsequent negligence of the defendant in failing to exercise ordinary care to avoid injuring the plaintiff becomes the immediate or proximate and efficient cause of the accident, which intervenes between the accident and the more remote negligence of the plaintiff.\\\"\\nThese cases establish the doctrine that, where a railroad company or a street railway company knows or has reason to believe that persons are likely to be on their tracks at a particular point, such company owes two duties to such persons: First, to keep a lookout in approaching such point; and second, to avoid injury when it sees such persons in peril, if it can be done by the exercise of ordinary care. And if it fails to keep such lookout, and thereby fails to see such persons' peril, and inflict injury, it cannot escape liability on that ground, but its liability will depend not upon what it actually knew, but upon what it would have known if it had performed its duty in keeping a proper lookout. And this seems to be the rule generally.\\nShearman & Redfield, in their work on [Negligence (5th Ed. 484), say: \\\"The rule that a plaintiff is as a matter of law negligent if he fails to see what he was bound to look for and ought to have seen, is rigidly enforced; and the same rule must, in common justice, be applied to the defendant. And in fact it actually is in almost every court where the question is squarely presented.\\\" And in section 485c they say: \\\"The operator of a street car, especially if it is impelled by cable or electric power, is bound to keep a constant watch for persons and vehicles on the street; and although he is not bound to anticipate that foot passengers will attempt to cross otherwise than at regular crossings, and therefore need not maintain quite the same degree of vigilance elsewhere, he is always responsible for failing to see even persons crossing at other places, if he would have seen them, had he been in the exercise of ordinary care. The rule exempting railroads from responsibility -where train men do not in fact see a person on the track . . . certainly applies only against trespassers, and therefore does not apply to city streets or street cars.\\\"\\nThe court did not err in giving the instruction in question.\\nInstruction \\\"b,\\\" as offered, is as follows: and shall further believe that in the exercise of reasonable care, by looking or listening, he could have seen or heard the car approaching before getting into a position of danger, and failed to so ascertain the approach of the car, and that he thereby contributed to the accident, they must find for the defendant.\\\"\\n\\\"The court further instructs the jury that if they believe from the evidence that John W. Gordon slowed down his horse when about forty feet from the track to allow the north-bound car to pass, and shall further believe from the evidence that after the north-bound car had passed he quickened the pace of his horse,\\nInstruction \\\"b,\\\" as offered, stated the general rule on the subject of contributory negligence, but failed to state the exception to it. In that respect it was amended by the court. As offered, it was in conflict with instruction Ho. I, which, as we have seen, was properly given. There was no error either in refusing to give instruction \\\"b\\\" as offered or in giving it as modified by the court.\\nInstruction \\\"c,\\\" as asked for by the defendant, was in the following words:\\n\\\"The court further instructs the jury that if they believe from the evidence that this accident was caused by the concurrent negligence of the motorman and of John W. Gordon, due to each failing to keep a proper lookout, they must find for the defendant.\\\"\\nIf the proximate cause of the injury was the negligence of both plaintiff and defendant concurring and co-operating together, then the general rule as to contributory negligence, and not the exception to the rule, applied, and the plaintiff was not entitled to recover. Beach on Contributory Hegligence, section 56.\\nThe defendant therefore had the right to have that theory or view of the case submitted to the jury. Where there is evidence tending to prove that the case comes within the general rule as to contributory negligence, and also evidence tending to prove that the case comes within the exception to that rule, each party has the right to have his theory or view of the case presented to the jury by proper instructions. If any authority were needed for this statement, it will be found in the case of Richmond Traction Co. v. Martin's Adm'x, supra.\\nThe court therefore erred in refusing to give instruction \\\"c\\\" as offered, which presented the defendant's theory of the case, and which, if sustained by the evidence, would have entitled it to a verdict.\\nIn the modified form in which the court gave it, it was clearly erroneous. If the proximate and efficient cause of the accident was the concurrent negligence of both parties, the plaintiff could not bring himself-within the exception to the general rule, and he was not entitled to recover.\\nInstruction Ho. 1, as given by the court, is as follows:\\n\\\"The jury are instructed that travellers may walk, ride, or drive either across or along a street railway track just as freely as upon any other part of the street, so long as they do not obstruct the cars, or carelessly expose themselves to danger. And while generally speaking, one who is about to cross a street railway should both look and listen for cars, this is not an inflexible rule, nor is it to be enforced with any such strictness as in cases of an ordinary steam railway. It is not negligence as a matter of law to omit to do so. The question is whether men of ordinary prudence, exercising ordinary care and prudence, would have thought it unnecessary to do so.\\\"\\nThe last sentence of this instruction is criticised as not correctly* stating the rule by which the jury might determine whether or not the plaintiff exercised ordinary care in approaching the street car crossing. The language used varies somewhat from the usual statement of the rule as to what constitutes ordinary care. It is difficult, if not impossible, to frame a definition of \\\"ordinary care\\\" which will be perfectly clear and accurate. But the definition given in the instruction does not differ in substance from that usually given in such cases, and the jury could not have been misled by it.\\nObjection is also made to instruction Ho. 6, which is as follows:\\n\\\"The jury are instructed that the burden is on the plaintiff to prove the negligence of the defendant company as charged in the declaration; and that, if the defendant relies on the contributory negligence of the plaintiff as a defence, the burden is on the defendant to prove such contributory negligence, unless it is disclosed by the plaintiff's evidence, or may be fairly inferred from all the circumstances of the case; and in the absence of such proof and inferences from the circumstances the plaintiff is presumed to have been -without fault.\\\"\\nIt is conceded that this instruction (Ho. '6) correctly states the law as an abstract proposition, but it is insisted that the court erred in giving it because it had no application to the facts of this case.\\nThe case before the jury was one involving questions of negligence and contributory negligence. An instruction which correctly stated to the jury upon whom the burden of proof was in such a case cannot be regarded as erroneous, or as tending to mislead the jury.\\nIt is unnecessary to consider the remaining assignment of error that the verdict is against the evidence, as the judgment will have to be reversed, the verdict set aside, and a new trial o awarded for the error committed by the court in refusing to give instruction \\\"c,\\\" as offered, and in giving it as amended by the court.\\nReversed.\"}"

va/2026721.json

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+"{\"id\": \"2026721\", \"name\": \"Swift & Company v. City of Newport News\", \"name_abbreviation\": \"Swift & Co. v. City of Newport News\", \"decision_date\": \"1906-03-01\", \"docket_number\": \"\", \"first_page\": \"108\", \"last_page\": \"128\", \"citations\": \"105 Va. 108\", \"volume\": \"105\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"\", \"parties\": \"Swift & Company v. City of Newport News.\", \"head_matter\": \"Richmond.\\nSwift & Company v. City of Newport News.\\nMarch 1, 1906.\\n1. Municipal Corporations\\u2014Streets\\u2014Change of Grade\\u2014Damaging Private Property.\\u2014At common law municipal corporations were not liable to one whose land was not taken for consequential damages arising from the change of grade of a street, although his improvements had been made on his lot in conformity to a former grade, and such was the law in this State prior to July 10, 1902, when the present Constitution was proclaimed. Since that date it is unlawful to damage private property for a public use without just compensation, just as it was unlawful theretofore to take private property for a public use without just compensation.\\n2. Eminent Domain\\u2014Damage to Property\\u2014Constitutional Provision\\u2014 How Enforced.\\u2014The provision of the present Constitution which forbids damage to private property for a public use without just compensation is self-executing, and, there being no statute providing a remedy for the recovery of such compensation, the appropriate common law action may be brought therefor.\\n3. Eminent Domain\\u2014Damage to Property\\u2014Constitutional Provision\\u2014 Effect on Statutes.\\u2014Upon the adoption of a Constitution forbidding the damaging of private property for a public use without just compensation, all existing statutes inconsistent with the Constitution are thereby nullified, and subsequent inconsistent statutes are forbidden.\\n4. Eminent Domain\\u2014Damage to Property\\u2014Constitutional Provision\\u2014 Prior Enactments\\u2014Subsequent Taking.\\u2014The constitutional inhibition upon taking or damaging private property for a public use without just compensation applies to the time of the actual taking or damaging, not to a mere paper taking or damaging. The fact that an ordinance of a city council directing a change in the grade of a street which damages the property of an adjacent land owner was adopted prior to the proclamation of the Constitution can have no effect if the actual damage was done after such proclamation. It is the actual taking or damaging which the Constitution protects, and for which an action will lie.\\n5. Municipal Corporations\\u2014Changing Grade of Streets\\u2014Effect of Constitutional Provision\\u2014Damages\\u2014Bight to Nominal Damages.\\u2014The new Constitution (1902) has not taken from the cities of the State-the right to raise or lower the surface of a street when necessity requires, nor made it dependent upon the will of the parties affected' thereby, but only provides that just compensation shall be made-for the damage done. Hence, if no damages have been done, no right has been violated, even though the established grade of the-street may have been changed. The gist of an action brought under the Constitutional provision against \\u201ctaking or damaging\\u201d is not to establish a legal right, but to recover just compensation, substantial damages. Hence, there can be no recovery of nominal damages as such.\\n6. Eminent Domain\\u2014Property Damaged but not Taken\\u2014Measure of Damages\\u2014Adjusting Property to Improvement.\\u2014Where private-property has been simply damaged by a public improvement, but no part thereof has been taken, the measure of damages is the diminution in the value of the property by reason of the improvement\\u2014difference between the fair market value of the property immediately before and after the construction of the public improvement. The cost of adjusting the property to the improvement, as,, for example, the cost of laying a new sidewalk, is a proper element to be taken into consideration in determining whether the property has been depreciated in value or not, but is not to be considered and assessed separately, independent of the enhanced value of the-property by reason of the improvement.\\n7. Eminent Domain\\u2014Damage to Property\\u2014Expert Testimony.\\u2014Experts may give their opinions as to whether a particular piece of private property has been enhanced or depreciated in value by reason of a public improvement.\\nError to a judgment of the Corporation Court of the city of Newport News, in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.\\nAffirmed.\\nThe opinion states the case. The instructions given by the ;trial court were as follows:\\n\\u201cA. The court \\\"instructs the jury that in determining from the evidence whether or not the plaintiff has been damaged by the change of grade occasioned by the public improvement made .'in 23d street in front of the property they will take into eon.\\u25a0sideration the benefits, if any, derived therefrom as a whole, .and likewise the damages, if any, to the said property, as a whole and not to any specific part thereof, and if they believe firom all of the evidence that the market value of the said property was as much immediately after the grade in the street lad been so changed, as it was immediately before, not knowing it was to be so changed, then they will find for the defendant.\\u201d\\n\\u201cB. The court instructs the jury that if they believe from the evidence that the raising of the grade of 23d street was occasioned by the city\\u2019s paving at its own expense the said street in front of the plaintiff\\u2019s property, and that such improvement \\u25a0of the street did not reduce the market value of said property, you will find for the defendant. By street is meant \\u2018drive-way\\u2019 mot \\u2018sidewalk.\\u2019 \\u201d\\n\\u201c1. If the jury believe from the evidence that, at some time .-after 12 o\\u2019clock M. of July 10, 1902, and prior to the institution of this action, the defendant city of Newport News changed, \\u2022or caused to be changed, the grade of 23d street in front of the premises of the plaintiff, Swift and Company, and raised the -surface and grade of said street about seven inches above the -surface and grade as it had theretofore existed, thereby leaving the lot of the plaintiff, and the building thereon, which had been luilt with reference to the original grade, below grade, and so \\u25a0damaged the property of the plaintiff, they must find for the plaintiff.\\u201d\\nBickford & Stuart, for the plaintiff in error.\\nJ. A. Massie, for the defendant in error.\", \"word_count\": \"6684\", \"char_count\": \"39109\", \"text\": \"Cardwell, J.,\\ndelivered the opinion of the eonrt.\\nThis action was brought in the Corporation Court of the city of Newport News by Swift & Co., a private corporation, to recover of the said city damages alleged to have been sustained in consequence of a change in the grade of a street.\\nThe plaintiff is the owner of two lots, with a frontage of fifty feet, on Twenty-third street, between Washington and Huntington avenues in said city, upon which is a costly building used by the plaintiff in the conduct of a wholesale beef and cold storage business, with a branch depot for the distribution of its beef to purchasers. In this building there is a basement with windows, around which are light shafts which extend into the sidewalk, which basement is used for the operation of an electric motor and other machinery. The building was erected with reference to the then existing grade of Twenty-third street, and in front of same was laid a granolithic sidewalk. The defendant city determined to pave this street entirely at its own expense, and, in order to do so, found it necessary to make a slight change in the grade in front of plaintiff's property, and to raise the surface of the street between four and seven inches. This change of the grade of the street was made, and a contract for paving the street in accordance with the new grade was let prior to the taking effect of the new Constitution of the State, at 12 M., July 10, 1902, and work was begun under the contract on other parts of the street; but the contractors did not reach the point in front of plaintiff's property until shortly after the new Constitution took effect. In front of plaintiff's premises the city put iu what is known as a low or \\\"drive-over\\\" curb, which does not extend above the pavement, but the street when completed was several inches higher than the sidewalk theretofore constructed by the plaintiff, and thereupon it proceeded to construct another sidewalk, which is fifteen feet in width, bringing it up to the surface of the pavement, at a cost of $128.00.\\nThe declaration filed sets out the foregoing acts on the part of the defendant city as wrongful and unlawful, and alleges injury and damage to the plaintiff's property, and depreciation of its market and rental value to the amount of $400.00.\\nIts demurrer to the declaration having been overruled, the city filed its plea of not guilty, and upon the issue joined on this plea the verdict and judgment were for the defendant.\\nWe are asked to review and reverse this judgment because of misdirection of the jury in the giving and refusal of instructions, and because the verdict is contrary to the law and the evidence.\\nAt common law, as has been repeatedly held by this court, municipal corporations were not liable for consequential damages, arising from the change of grade, of a street, to one whose land was not taken, although his improvements had been made on his lot in conformity to a former grade. Harrisonburg v. Roller, 97 Va. 582, 34 S. E. 523; Home Building, &c., Co. v. Roanoke, 91 Va. 52, 20 S. E. 895, 27 L. R. A. 551, and authorities cited.\\nIt is also well settled that the common law remains in force in this State, except when changed by statute or the Constitution, which operate prospectively only, unless the words employed show clearly and expressly the intention that it should be otherwise. Arey v. Lindsay, 103 Va. 250, 48 S. E. 889; Kesterson v. Hill, 101 Va. 739, 45 S. E. 288; Cooley's Const. Lim. 97.\\nThis action, therefore, can be maintained, if at all, only by reason of some right secured to plaintiff in error by a change of some provision or provisions of the old Constitution of the State found in the present Constitution, as it is not alleged that there has been any legislation, and in fact there has been none, on the subject of damages to private property by public improvements since the present Constitution went into effect. There was no taking of property, and the defendant in error had the power, both at common law and by section 29 of its charter (Acts 1895-'06, p. 80), to grade and improve streets without the payment of consequential damages.\\nThe provision in the Bill of Bights, in the old Constitution (section 8, Article 1), that \\\"all men, having sufficient evidence of permanent common interest with, and attachment to, the community have the right of suffrage and cannot be taxed, or deprived of their property for public uses, without their consent, or that of their representatives duly elected\\\" . . . has been changed by adding in the corresponding section of the new Constitution (section 6), after the words \\\"or deprived of,\\\" the words \\\"or damaged in,\\\" so that the provision of the Bill of Bights contained in the present Constitution is that citizens of the State cannot be deprived of, or damaged in, their property for public uses, without their own consent, or that of their representatives duly elected, &c.\\nBy the change made in section Id, Article 5, of the old Constitution, which contained the provision that the General Assembly should not enact any law whereby private property might be taken for public uses without just compensation, it is now provided (section 58, Article d, new Constitution) that the General Assembly \\\"shall not enact any law whereby private property shall be taken or damaged for public uses, without just compensation.\\\"\\nConstitutional provisions, in pari materia, like statutes, are to be construed together, and effect is to be given to the policy established by the Constitution. To that end, a fair interpretation is to be given to the language used, construing words in their common and ordinary acceptation, unless it clearly appears that they were intended to be used in some other sense. Ry. Co. v. Clowers' Admr., 102 Va. 867, 47 S. E. 1003; Funkhouser v. Spahr, 102 Va. 306, 46 S. E. 378.\\nIt clearly appears, we think, that it was the policy of the framers of the present Constitution, in adopting section 6 of-Article 1, and section 58 of Article 4, worded in a similar way that the corresponding provisions in the old Constitution were worded, that it should be unlawful thereafter to damage private property for public use without just compensation, just as it was unlawful theretofore to take private property for public use without just compensation.\\nThis change follows similar provisions in the Constitution of West Yirginia, adopted in 1872, which were taken from the Constitution of the State of Illinois of 1870, except that the provision in the two last-named Constitutions is a positive statement that \\\"private property shall not be taken or damaged for public use without just compensation.\\\"\\nIt was the design of the amendment to our Constitution under consideration to remove an existing mischief, viz: the damaging of private property for public use without just compensation, and a constitutional provision should never be construed as dependent for its efficiency and operation upon legislative will. 6 A. & E. Ency. L. 913, and authorities cited. So that when the provision of a Constitution, as-does ours, no less than the provision in the Constitutions of the States of West Yirginia and Illinois, forbids damage to private property, and points out no remedy, and no statute affords one, for the invasion of the right of property thus secured, the provision is self-executing, and the common law, which provides a remedy for every wrong, will furnish the appropriate action for the redress of such grievance. 6 A. & E. Ency. L. 913, and authorities cited in note. And all statutes existing when such a Constitution is adopted, or which might thereafter he passed, inconsistent with its provisions, are nullified by such constitutional prohibition, though legislation may nevertheless be desirable and valuable for the purpose of defining the right and aiding in its enforcement. Same authority just cited, and Oakland Paving Co. v. Hilton, 69 Cal. 479 , 11 Pac. 3.\\nIn People v. McRoberts, 62 Ill. 41, the contention was made that the provision of the Illinois Bill of Bights, inhibiting the taking of private property for public use was only prospective, and inoperative without legislative action; but the contrary view was taken, the opinion of the court saying: \\\"The right of property thus intended to be secured cannot depend upon the mere will of the Legislature. The prime object of the Bill of Bights is to place the life, liberty, and property of the citizen beyond the control of legislation, and to prevent either legislatures or courts from any interference with or deprivation of the rights therein declared and guaranteed, except upon certain conditions. It would be the merest delusion to declare a subsisting right as essential to the acquisition and protection of property, and make its employment depend upon legislative will or judicial interpretation.\\\"\\nIt is contended, however, by counsel for defendant in error here, that notwithstanding our Bill of Bights and Constitution provide that an individual cannot be damaged in his property for public use without either his consent or that of his representatives duly elected, and that where the necessary consent is obtained by means of the passage of an ordinance, the legisla ture (city council) shall not enact any law whereby private property shall he taken or damaged for public use without just compensation, the passage of such an ordinance, pursuant to-authority given in the city's charter, without making provision for just compensation, before the time when the Constitution became effective, is a sufficient and legal justification for doing the work on the street upon which plaintiff in errors property abuts and causing damage thereto without compensation after the Constitution began to operate, and the constitutional provisions relied on do not apply. In other words, that although the\\\" ordinance under which the work is done, if enacted at this time, would be unconstitutional, or at least could not be put into operation by doing the work without providing for just compensation, such an ordinance passed before the present Constitution became operative, which was carried into effect after by bringing the street to the grade established by it, and inflicting damage upon plaintiff in error's property, is valid authority for doing the work, because when it was passed it would have been lawful to have performed the work without rendering compensation.\\nTo give a city ordinance, passed prior to July 10, 1902, the effect here contended for, would, as it appears clear to us, make the constitutional provisions we have under consideration meaningless.\\n\\\"A law cannot be enforced in a State, no matter when passed,, which contravenes the provisions of the Constitution of the State.\\\" State v. Maynard, 14 Ill. 519.\\nThe question as to the effect of a new constitutional provision incorporating the word \\\"damage\\\" in the Constitution of Illinois was passed upon by the United States Supreme Court in Chicago v. Taylor, 125 U. S. 166, 31 L. Ed. 638, 8 Sup. Ct. 820, and the opinion says: \\\"Touching the provision in the Constitution of 1870, the court (State court) said that the framers of that instrument evidently had in view the giving of greater security to private rights by giving relief in cases of hardship not covered hy the preceding Constitution, and for that purpose extended the right to compensation to those whose property had been 'damaged' for public use; that the introduction of that word, so far from being superfluous or accidental, indicated a deliberate purpose to make a change in the organic law of the State, and abolish the old test of direct physical injury to the corpus or subject of the property affected. The new rule of civil conduct, introduced by the present Constitution, the court adjudged required compensation in all cases where it appeared 'there has been some physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property, in excess of that sustained by the public generally.' . . .\\n\\\"The conclusion there reached was that, under this constitutional provision, a recovery may be had in all cases where private property has sustained a substantial damage by the making and using of an improvement that is public in its character; that it does not require that the damage shall be caused by a trespass, or an actual physical invasion of the owners of real estate, but if the construction and operation of a railroad or other improvement is' the cause of the damage, though consequential, the party may recover. . .\\n\\\"Our attention has not been called to, nor are we aware of, any subsequent decision of the State court giving the Constitution of 1870 an interpretation differing from that indicated in Rigney v. Chicago (102 Ill. 64), and Chicago, &c., Rd. Co. v. Ayers (106 Ill. 511). We concur in that interpretation. The use of the word 'damaged' in the clause providing compensation to owners of private property, appropriated to public use, could have been with no other intention than that expressed by. the State court. Such a change in the organic law of the State was not meaningless. But it would be meaningless if it should be adjudged that the Constitution of 1870 gave no additional or greater security to private property, sought to be appropriated to public use, than was guaranteed by the former Constitution.\\\"'\\nWe have been unable to find a ease where it is held that where-an ordinance establishing a grade is passed prior to the adoption of a constitution, affording protection against damage in such cases, and no. work of grading was done under the ordinance until after the adoption of the Constitution, the plaintiff cannot recover because the grade ordinance was passed before the Constitution became effective. There are, however, a number of cases to be found taking the opposite view, and among them the following: Ogden v. Philadelphia, 143 Pa. St. 430, 22 Atl. 694; O'Brien v. Philadelphia, 150 Pa. St. 589, 24 Atl. 1047, 30 Am. St. 832; Johnson v. Parkersburg, 16 W. Va. 402, 27 Am. Rep. 779.\\nIn the first-named ease, the grade w\\u00e1s established on the-city plan in 1871; the Constitution of Pennsylvania giving the right of compensation for property damaged for public use was adopted in 1874; and the opinion of the court, after stating these facts, and that when the grade of the street was established there was no right of action for consequential damages to property owners, says: \\\"But the Constitution of 1874 (article 16, section 8) gave a right to owners to have compensation for property injured, as well as for property taken by municipal or other corporations in the construction or enlargement of their works. The right of action which this section gives is clearly for the actual establishment of the grade on. the lands. The general rule is that the cause of action arises when the injury is complete, and this has been uniformly applied to the taking of property for public use, from the case of Schuylkill Nav. Co. v. Thoburn, 7 Serg. & R. 411, down to the present day, etc.....There is nothing in the constitutional provision which indicates an intent to depart from the general rule under which, in the present case, the cause of action could not arise until the actual cutting down of the ground in 1887.\\\"\\nIn Johnson v. Parkersburg, supra, a case similar in all essential particulars to this, the grade of the street was adopted before the Constitution of West Virginia of 1872, and the work of grading was done after the adoption of the Constitution. Held-. Where a city in changing the grade of streets permanently injures private property, and thus infringes the explicit provision of the Bill of Eights that private property shall not be taken or damaged for public use without compensation, an action lies for the injury, although no statute has ever been enacted for the enforcement of this constitutional provision.\\\" The opinion in that case says: \\\"The private right of the individual was secure under the Constitution. That part did execute itself. It contained a positive inhibition on the part of the Legislature to pass any law by which private property could be taken or damaged for public use without compensation.\\\"\\nIn the later case of Blair v. Charleston, 43 W. Va. 68, 26 S. E. 341, 35 L. R. A. 856, 64 Am. St. 837, it is held that \\\"If a street be opened and used upon the natural surface as a grade line, and it is recognized and treated by the city or town as a public street, and owners of lots upon it build with reference to said natural grade line, and it is changed, the city or town is liable to lot owners for damages consequential upon the change of grade, though no grade of the street was ever adopted by the municipality, under section 9, article 3 of the Constitution. Such natural grade thus became the established grade.\\\"\\n\\\"It is not the making of the paper grade that inflicts the injury, but its application to the ground. It is the direct disturbance of a right which the owner had enjoyed in connection with his property that gives the right of action.\\\" See also Jones v. Bangor, 144 Pa. St. 430, 23 Atl. 252.\\nUpon this branch of the case at bar we are of opinion that, under the present Constitution, proper acts of the legislature (or ordinances of the city council) for the purpose of both obtaining the necessary consent and providing just compensation, are essential to the act of taking or damaging private property for public use, unless in fact the owner of the property taken or damaged himself consents that it be done, and waives compensation. In other words, that the provisions of the present Constitution against the taking or damaging of private property for public use, without just compensation, were self-executing, and repealed and displaced all existing laws inconsistent therewith; and that plainly the charter of defendant in error and the city ordinances, in so far as they authorized the change of the grade of streets, resulting in injury to the property of abutting lot owners, without providing just compensation for such injury, are inconsistent with said provisions of the new Constitution, and are to that extent repealed. Section 117 of article 8, new Constitution; 6 A. & E. Ency. L. 919.\\nThe next question for consideration is: What is the true rule for the measure of damages in a case like this ?\\nIt is earnestly insisted by counsel for plaintiff in error that as defendant in error has violated the provisions of the new Constitution which gave plaintiff in error a right of action, it follows that it has suffered damage. In other words, as the action is brought to protect a right secured to the plaintiff in error by tbe new Constitution, it is at least entitled to recover nominal damages.\\nIf this contention could be maintained, there could never be a verdict for the defendant in such a ease, and the great weight \\u2022of authority is, therefore, against the contention. \\\"The failure to give nominal damages, unless. it be upon a matter which involves the settlement of a right other than the right to recover damages, is not a ground for reversal.\\\" Briggs v. Cooke, 99 Va. 273.\\nThe new Constitution has not taken from the cities of the State the right to raise or lower the surface of a street when necessity requires, nor made it dependent upon the will of the parties affected thereby, but only provides that just compensation shall be made for the damage done. Therefore, if no damage has been done, no right has been violated, even though the established grade of the street may have been changed.\\n\\\"It is only in cases where damages are not the gist, that is, in \\u2022cases of forbidden conduct, that nominal damages can be recovered.\\\" Hale on Damages, p. 25, 8 A. & E. Ency. L. 551.\\nThe action here is for just compensation. The gist of the action is for substantial damages, and not an invasion of a legal right. Therefore, under the pleadings, nominal damages, as such, are not recoverable.\\nIn Stewart v. Ohio River Ry. Co., 38 W. Va. 438, 18 S. E. 604, the declaration filed was similar to the one in this case, and the opinion says: \\\"Under our view of the pleadings as .already discussed, nominal damages, as such, were not recoverable, for the plaintiff did not sue for an invasion or infringement of a legal right, as for a trespass or a nuisance, but for .just compensation for damages done to his property.\\\"\\n\\\"Where the suit is for the 'just compensation' guaranteed by \\\"the Constitution, the measure of the damages is the depreciation in the value of the property by the causes sued for.\\\" 2 Lewis Em. Domain, section 625. The same author, discussing the rule for measuring the damages of a plaintiff who has suffered loss by reason of a public improvement, in section 494, citing numerous cases, says: \\\"The correct measure of damages in all such cases is undoubtedly the diminution in the value of the property by reason of the change. The owner should receive such an amount as will make him whole.\\\"\\nIn Stewart v. Ohio River Ry. Co., supra, the opinion of the court in Springer v. Chicago, 135 Ill. 552, construing the Illinois Constitution, is quoted with approval as follows: \\\"Where the action is brought to recover damages, where no part of the property is taken but merely damaged by a public improvement, the law is well settled that a recovery cannot be had unless, the property claimed to be damaged has been depreciated in value by the construction of the public improvement. In other words, if the fair cash value of the property is as much immediately after the construction of the improvement as it was before the improvement was made, no damage has been sustained and no recovery can be had.\\\" To the same effect is Blair v. Charleston, supra; Chicago v. Taylor, supra.\\nIn City Council v. Schrameck, 96 Ga. 426, 23 S. E. 400, 51 Am. St. 146, the same contention was made that is made by plaintiff in error here, viz: That benefits deducted in measuring damages where no part of the property is taken, but merely damaged by a public improvement, must be, as in a case where a part of the property is taken and the action is to recover for damage to the residue, special and peculiar, and cannot include general benefits shared in common with other, property in the neighborhood, and that the plaintiff was in any event entitled tO' recover the costs of adjusting his property to the new conditions brought about by the public improvement; but the court held. otherwise, and in accordance with the rule sanctioned in the authorities just adverted to, the opinion saying that evidence as to the necessity of filling in the lot and raising the buildings on the lot, with the probable costs of such work was admissible,, not as furnishing a reason for the allowance of such costs as an independent item of special damage, but as a circumstance-throwing light upon the general question of the diminution of' market value.\\nIt is insisted that the rule established for assessing the damages to the residue, where a part of a tract of land is taleen, by the decisions of this court before our Constitution was changed by inserting the word \\\"damaged,\\\" should be adhered to, and Hickman v. Kansas City, 120 Mo. 110, 25 S. W. 225, 23 L. R. A. 658, 41 Am. St. 684, is greatly relied on as supporting that view; but while the opinion in that case reaches the conclusion that the change in the Missouri Constitution, made in 1875, by inserting the word \\\"damaged\\\" and coupling it with the word \\\"taken,\\\" secured to the property owner the right to compensation when his property is damaged, in the same terms as when it is actually invaded and taken, the later Missouri cases do not follow that view, but approve the rule for the measure of damages, where no part of the property of the plaintiff is taken, that was sanctioned in Stewart v. Ohio R. Co., and other cases cited above, viz: \\\"If the fair market value of the property is as much immediately after the construction of the improvement as it was before the improvement was made, no damage has been sustained and no recovery can be had.\\\"\\nThe opinion by Gantt, P. J., in Grover v. Cornet, 135 Mo. 21, 35 S. W. 1143, citing, among other cases, Markowitz v. Kansas City, 125 Mo. 485, 28 S. W. 642, 46 Am. St. 498, says: \\\"The measure of damages in such cases has been laid down time and again by this court.' It is the difference in the market value \\u2022of the property before and after the grading, and caused solely by the grading.\\\"\\nThe same view is taken in Walters v. St. Louis, 132 Mo. 1, 33 S. W. 441, citing a number of cases decided by that court after the change made in the Missouri Constitution by inserting the word \\\"damaged\\\" and coupling it with the Word \\\"taken,\\\" requiring that thereafter \\\"just compensation\\\" should be made for property \\\"damaged\\\" as theretofore had been m'ade for property \\\"taken.\\\"\\nIt is, however, further insisted here, that the jury should bave been instructed as follows: \\\"If the jury find for the plaintiff, in estimating its damages, they should take into consideration the diminution in value, if any, of the said plaintiff's property caused by the change of the grade of the street, the peculiar benefits, if any, derived in respect to this particular property, not in common with the property of other persons along said street, and the actual damage, if any, incurred by the plaintiff in laying a new pavement in front of its premises; and if they find from the evidence that such diminution in value exceeds in value such peculiar benefits, such excess is to be added to the damage incurred in laying the new pavement; but if the damage by diminution in value of the premises falls short of such peculiar benefits, then the deficiency is not to be charged to the plaintiff, nor deducted from the amount to which the said plaintiff is entitled on account of damage incurred in laying the new pavement; provided that the damages shall not exceed the amount of $400.00 claimed in the declaration.\\\" In other words, that the jury should have been instructed that in estimating plaintiff in error's damages, they should disregard benefits, if any, to its property derived from the improvement \\\"in common with the property of others along said street,\\\" and that they should in any event find for the plaintiff in error the sum of $128.00, the cost incurred in laying the new pavement,, regardless of any benefits.\\nThis independent item of cost incurred in laying the new pavement tended to show damage, and was proper to be considered as such by the jury, yet they could not take separate items and award damages for them and add them together and say that is the damage suffered, nor could there he a recovery for any specific item of damage as such, but all of them were to be taken together as elements tending to show whether the-property had been depreciated in value when considered in connection with the benefits. 2 Lewis Em. Domain, sec. 494; City Council v. Schrameck, supra; Chambers v. South Chester (Pa.), 21 Atl. 409.\\nIn the last-named case the following charge to the jury was-approved: \\\"You may consider these several matters\\\" (special items of alleged damages) \\\"as elements in the cause, but you are not to award damages for the building of walls or the filling-up of lots as special damages, or for the likelihood of injuring-the building, etc. You are not to take up these separate items- and award separate damages for them and add them together- and say that is the damage suffered.' The law has given another rule for the measuring of damages, and that rule is, as before-stated, and which I will now repeat. The law is this: You will consider the market value of the property before the change and unaffected by it, and its market value with the grade as-affected by it. If the establishing of the new grade has added more value to the property than it has depreciated from it, the verdict should be for the defendant. If it has depreciated from the property more than it has added to it, the verdict should be-for the plaintiff, and the measure of damages should be thedifferenee between its value before and its value after.\\\"\\nThe case of Blair v. Charleston, supra, is exactly in point as -to the rule for measuring the damages in a case where there is no taking of any part of the property alleged to have been \\u2022damaged by a public improvement; and, in an elaborate opinion by Brannon, J., citing all of the decisions of this court pertinent to the issue, it is held: \\\"If property is enhanced in value by reason of a public improvement, as distinguished from the general benefits to the whole community at large, it is specially benefited and is to be assessed for the special benefits, notwithstanding every other piece of property upon or near the improvement may, to greater or less extent, be likewise specially benefited. In other words, it is not only such benefits as are special, \\u2022or limited to the particular property, thereby excluding the consideration of such benefits as are common to other property similarly situated, but it is such benefits as that the particular property is by the improvement enhanced in value, that is, specially benefited, that are to be considered. If a piece of property is enhanced in value, its enhancement or, in other words, benefits to the property cannot be said to be common to any other piece of property specially enhanced in value, and it is thus specially benefited within itself, and irrespective of the benefit that may be conferred by the improvement upon other properties.\\\"\\nThe opinion in that case also disposes of the contention made here that evidence of experts, i. e., opinion evidence, is not admissible on the question, whether the property has been enhanced or depreciated in value by the public improvement, and holds that such evidence is admissible.\\nThe rule sanctioned by the authorities we have referred to, and in fact universally recognized, it may be said, in all cases in which recovery was sought for damages where no part of the property is taken, but merely damaged, by a public improve ment, is in entire harmony witli the rule adopted in a long line of cases holding that the damages to the residue of the tract was an amount equal to the difference in the market value of the residue at the time of the taking and its market value after the same had been so taken. If this were not the correct rule, and plaintiff in error's contention could be sustained, damages would be recoverable in every case where the owner of property along the line of a public improvement incurred expense in adjusting his property to the improvement, although his property had been enhanced in value beyond the expense incurred, not because his property has been depreciated in value by the improvement more than benefited, but merely because other property similarly situated had been more or less benefited. Such a result would not only be unjust and inequitable, but would greatly retard the making of such common and necessary public improvements as are here complained of, and many others of like character and importance.\\nThere is no evidence in this case, whatever, of any benefits to the community at large by reason of the paving of Twenty-third street, upon which plaintiff in error's property assessed for taxation at $22,000, abuts, but the evidence was limited solely to the special benefits which enhanced the value of this particular property, both in fee simple and rental value, tending to show an increase in both respects greatly in excess of the damages claimed as having been sustained by reason of the change in the grade of the street; and it would seem clear that the only inference that could be drawn from the evidence was that the other property in the community, not fronting on this paved street, was not enhanced in value, as the evidence shows that the fact that the property fronted upon the paved street was the sole cause of the enhancement of its value.\\nThe case is of the first impression in Virginia upon the question of the measure of damages caused by a change of the grade of a street, where no part of the property was taken, and we have considered and determined the principles of the case instead of discussing in detail the instructions given and refused at the'trial, and deem it only necessary to say with reference to the instructions, that those given by the learned judge who presided at the trial so clearly and concisely expounded the principles of law applicable to the case, and in accordance with the views expressed in this opinion, that the jury could not have been misled as to their duty in disposing of the questions submitted to them.\\nEnough has been said of this evidence to warrant, in our opinion, the conclusion that the jury could not have rightly found any other verdict than they did find, and therefore the court below did not err in overruling plaintiff in error's motion for a new trial.\\nThe judgment of the corporation court is affirmed.\\nAffirmed.\"}"

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+"{\"id\": \"2042099\", \"name\": \"Ross Oakley Johnson v. Town of Damascus\", \"name_abbreviation\": \"Johnson v. Town of Damascus\", \"decision_date\": \"1965-03-08\", \"docket_number\": \"Record No. 5890\", \"first_page\": \"893\", \"last_page\": \"896\", \"citations\": \"205 Va. 893\", \"volume\": \"205\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:03:12.818212+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ross Oakley Johnson v. Town of Damascus.\", \"head_matter\": \"Richmond\\nRoss Oakley Johnson v. Town of Damascus.\\nMarch 8, 1965.\\nRecord No. 5890.\\nPresent, Eggleston, C. J., and Spratley, Buchanan, Snead, I\\u2019Anson and Carrico, JJ.\\nJoseph P. Johnson, Jr., for the plaintiff in error.\\nE. Summers Sheffey, for the defendant in error.\", \"word_count\": \"1168\", \"char_count\": \"6725\", \"text\": \"I'Anson, J.,\\ndelivered the opinion of the court.\\nDefendant, Ross Oakley Johnson, was convicted by a jury of a second offense of driving a motor vehicle while under the influence of intoxicants in violation of an ordinance of the town of Damascus, Virginia. Judgment was entered on the verdict of the jury, and defendant is here on a writ of error.\\nDefendant assigns numerous errors, but they involve only two questions. He contends (1) that the evidence was insufficient to sustain his conviction; and (2) that the town ordinance was not proved.\\nAlthough defendant asks that we set aside his conviction on the ground that the evidence is insufficient to support it, he failed to designate for printing the evidence which is necessary and material for us to determine that issue. The printed record contains only the evidence which is favorable to him.\\nRule 5:1, \\u00a7 6, requires the defendant to \\\"designate not only that which is favorable to him, but that which is favorable to his opponent, for obviously without access to all of the material evidence it is impossible for us to determine its sufficiency.\\\" DeMott v. DeMott, 198 Va. 22, 24, 92 S. E. 2d 342, 343. See also Jenkins v. Womack, 201 Va. 68, 69, 109 S. E. 2d 97, 98.\\nBecause of defendant's failure to comply with the rule, we would be justified in not considering that assignment of error. But in the interest of justice we will consider all the pertinent evidence in the transcript, including that designated and that omitted from the printed record. See Carter, Adm'r v. Nelms, 204 Va. 338, 340, 341, 131 S. E. 2d 401, 402, 403; Rule 5:1, \\u00a7 6(f).\\nThe evidence, stated in the light most favorable to the town, since all conflicts in the evidence have been resolved in its favor by the jury's verdict, shows that on the night of August 11, 1963, the defendant stopped his truck at a business establishment in the town of Damascus and picked up three young men and drove them to a bowling alley in the town. These young men, testifying to substantially the same facts, said that after they got in the truck and the defendant started it in motion, he struck a fence and barely missed hitting a building. On the way to the bowling alley the truck \\\"was weaving backwards and forward across the solid line\\\" on the roadway. Upon arriving at the bowling alley parking lot, they got out of the truck and walked approximately 50 to 75 yards down the road. Within eight to ten minutes after leaving the truck they observed that the defendant had been taken into custody by a police officer. The arresting officer, Beattie Fulcher, testified that as he was leaving the bowling alley in a patrol car he observed defendant's truck turning into the parking lot. He returned to the area within ten minutes because he had received a complaint that a truck had been operating in the town in a careless and negligent manner. He found defendant's truck parked in the bowling alley lot and the defendant was sitting behind the steering wheel in an intoxicated condition. When he removed defendant from the truck he staggered and was very belligerent. Defendant admitted that he had been drinking, but denied that he had driven the truck to the parking lot. Several bottles and cans of beer were found in the truck and a subsequent blood test revealed .19 per cent alcohol in defendant's blood.\\nDefendant admitted during the trial in the court below that he had driven the truck to the parking lot, but he said that he did not begin drinking until after he had parked it and that he had been there from 30 to 40 minutes before the officer arrested him.\\nSeveral witnesses corroborated defendant's testimony that he had been in the parking lot from 30 to 40 minutes before he was arrested, and testified that they drank intoxicating beverages with him during that time. Thus defendant argues that he became intoxicated after parking his truck and the evidence is insufficient to support his conviction of driving under the influence of intoxicants.\\nDefendant relies on Bland v. City of Richmond, 190 Va. 42, 55 S. E. 2d 289, in support of his argument, but the case is readily distinguishable on the facts. There two police officers found Bland's automobile resting against a fireplug which it had hit. A third officer, who was not called as a witness, brought Bland to the scene \\\"a few minutes\\\" after the two officers had discovered the accident, and at that time the accused talked with a thick tongue and was under the influence of intoxicating liquors. The evidence did not show how far the accused was from the scene of the accident when apprehended by the officer, or whether he had sought out the officer, or was picked up because of apparent drunkenness. In reversing Bland's conviction, this Court held that because of the uncertainty of the interval between the time of the accident and when the accused was brought back to the scene, the evidence did not establish that Bland operated a motor vehicle while under the influence of intoxicating liquors.\\nIn the instant case there was evidence that the defendant operated his truck in a careless and reckless manner while driving to the bowling alley parking lot in the town of Damascus. The arresting officer saw the defendant drive the truck into the parking lot, and when he was arrested within ten minutes thereafter he was under the influence of alcohol. The question presented was one of fact for the jury, and their finding that the defendant had operated the truck while under the influence of intoxicating beverages is clearly supported by the evidence.\\nThe contention of the defendant that the town ordinance prohibiting the operation of a motor vehicle while under the influence of intoxicating beverages, and the punishment therefor, was not proved, is without merit.\\nThe town met the burden that was required of it under our holding in Sisk v. Shenandoah, 200 Va. 277, 105 S. E. 2d 169.\\nThe record shows that the town of Damascus code, with its pocket parts, was introduced into evidence, without objection, pursuant to the provisions of Code \\u00a7 8-270, as amended, Code of 1950, 1957 Repl. VoL, after the clerk of the circuit court, when called as a witness, identified the code and testified that it was on file in his office. Moreover, defendant expressly waived the reading of the applicable ordinance and we do not have it before us as a part of the record. Nor was it printed in defendant's brief.\\nFor the reasons stated, the judgment is\\nAffirmed.\"}"

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+"{\"id\": \"2042251\", \"name\": \"Southern Railway Company v. City of Richmond, Et Al.\", \"name_abbreviation\": \"Southern Railway Co. v. City of Richmond\", \"decision_date\": \"1964-11-30\", \"docket_number\": \"Record No. 5762\", \"first_page\": \"699\", \"last_page\": \"711\", \"citations\": \"205 Va. 699\", \"volume\": \"205\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:03:12.818212+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Southern Railway Company v. City of Richmond, Et Al.\", \"head_matter\": \"Richmond\\nSouthern Railway Company v. City of Richmond, Et Al.\\nNovember 30, 1964.\\nRecord No. 5762.\\nPresent, Eggleston, C. J., and Spratley, Buchanan, Snead, I\\u2019Anson and Carrico, JJ.\\nThomas B. Gay and H. Merrill Pasco (Roderick D. Sinclair, on brief), for the appellant.\\nJames A. Eichner, Assistant City Attorney (J. E. Drinard, City Attorney, on brief), for appellee, City of Richmond.\\nWilliam Eldridge Spain, for appellees, Henry A. Maurice, Jr.; John Prussing, et al., individually, and as Members of The Forest Hill-Woodland Heights Citizens Association.\", \"word_count\": \"4748\", \"char_count\": \"28413\", \"text\": \"Carrico, J.,\\ndelivered the opinion of the court.\\nThis appeal is a sequel to the case of City of Richmond v. Southern Railway Company, 203 Va. 220, 123 S. E. 2d 641, where we decided, inter alia, that the State Corporation Commission was without jurisdiction to pass upon the validity of the zoning ordinance of the city, as applied to the railway. Following our decision, the railway filed against the city, in the Law and Equity Court of the City of Richmond, a motion for declaratory judgment (Code, \\u00a7 8-578 et seq.).\\nThe motion alleged that the railway owned a tract of land in the city of Richmond, adjacent to its main line right-of-way, which, under the zoning ordinance of the city, was included within the boundaries of R-3, R-4 or R-5 dwelling districts; that it had made certain improvements to the land preparatory to installing tracks and appurtenant facilities for use as an extension of its existing yard for the storage and handling of trains; that such extension was essential in order for it to perform its public duties, and that the city had taken the position that the railway did not have the right, under the zoning ordinance, to use the land for the extension of its yard facilities. The motion prayed for a declaration that the zoning ordinance was, \\\"unconstitutional and void to the extent that it is claimed to prohibit the construction and use by the Railway of the Proposed Facilities.\\\"\\nAfter a plea in abatement and a demurrer,, filed by the city, were overruled, the city filed its answer asserting that its zoning ordinance was valid and applicable to prohibit the proposed use of the railway's land.\\nHenry A. Maurice, Jr., and others, individually and as members of the Forest Hill-Woodland Heights Citizens Association were, upon motion, permitted to intervene as parties defendant, and thereupon filed their answer adopting all pleadings filed by the city.\\nThe trial court heard the evidence ore terms and, in a written opinion and a final decree, upheld the validity of the zoning ordinance and ruled that the ordinance prohibited the proposed use of the railway's land. The railway was granted an appeal.\\nThe evidence shows that the railway is a public service corporation doing a public transportation business by rail. The line from West Point through Richmond to Danville, where it connects with one of the railway's principal north-south lines, is known as the Richmond Division. Freight service only is furnished on this division, the passenger service once provided having been abandoned.\\nRichmond is the principal station on the Richmond Division, where the railway has 81 regular customers. Richmond is also the point of primary interchange of the railway with the lines of four other railroad companies and is the terminal of the railway's trains to and from Danville and to and from West Point.\\nThe railway's fine from Danville enters Richmond along the southern bank of the James River, passing the tract of land involved in this controversy, farther on running through the railway's Belle Isle and South Richmond yards, thence across the James via a bridge on the western end of Mayo's Island, then through the 28th Street yard and on to West Point.\\nThe railway daily operates one through train from Danville to Richmond and one such train from Richmond to Danville. In addition,, one local train is operated from Danville to Richmond on Tuesday, Thursday and Saturday of each week and another local train is operated from Richmond to Danville on Monday, Wednesday and Friday of each week. One local train makes the round trip from Richmond to West Point each day of the week.\\nThe railway's operations in Richmond include the building and breaking np of trains and the classification and switching of cars, incident to the delivery to and receipt from its customers of cars in Richmond and throughout the Richmond Division, as well as the delivery to and receipt from the other railroads of cars at the interchange points.\\nPreviously, the South Richmond yard was used by the railway for the bulk of its work in the switching and classification of cars but, with the advent of diesel locomotives, this yard was gradually abandoned, except for storage purposes, and a portion of the yard was sold in 1961 to Reynolds Metals Company. Beginning in 1953, the railway began to use its Belle Isle yard, lying principally east of Lee Bridge, for its switching and classification work.\\nThe railway considered its facilities at Belle Isle yard to be inadequate and, consequently, in 1960 began to improve the tract of land in question for use as an extension of its yard facilities, contemplating the ultimate location on the land of eleven tracks for the switching and classification of cars. The tract of land proposed to be used contains approximately 16 acres, a portion thereof having been owned by the railway since 1917 and the balance of 8.86 acres having been purchased by the railway in 1960, at a cost of approximately $530 per acre. The tract is located in South Richmond approximately 2800 feet west of Lee Bridge,, between the southern bank of the James River and the northern edge of the railway's main line right-of-way, which is 80 feet wide. The tract varies in width from 50 feet to 250 feet and, prior to being improved by the railway, was low and swampy and subject to periodic flooding. The land lies below and to the north of a high bluff. Riverside Drive, one of Richmond's most scenic parkways, runs along the top of the bluff. Fronting on and south of the drive are located many substantial and attractive dwellings, in some of which the intervening parties reside.\\nBetween the southern edge of the railway's right-of-way and the northern side of Riverside Drive, lies a strip of land of natural beauty which the city has acquired over a number of years for inclusion in its park system. Adjacent to the railway and south of a point about midway of the tract in question, is located Forest Hill Park, which was described in the testimony as one of Richmond's most beautiful parks.\\nThe railway commenced to clear, drain, grade and fill the tract in July of 1960. The present controversy arose several months later when nearby residents and city officials learned of the use which the railway proposed to make of the tract. The railway then suspended its improvement work, after expending the sum of $149,000 thereon.\\nNegotiations were conducted in November, 1960, between the objecting residents and railway officials in an effort to effect a compromise, without success. On January 9, 1961,, the city council adopted an ordinance directing the proper officers of the city to take the necessary steps for the acquisition of the tract for park purposes.\\nThe assistant city real estate agent contacted the superintendent of the Richmond Division of the railway with regard to the purchase of the tract, but the railway advised that it was not willing to sell. The litigation before the State Corporation Commission between the railway and the city, described in 203 Va. 220, then followed.\\nThe tract in dispute was first placed in a residential zoning district by an ordinance adopted by the city on April 13, 1927, which permitted in residential districts:\\n\\\"(14) Railway passenger stations, railway right-of-way, not including railroad yards.\\\" (Art. 3, sec. 4)\\nThe 1927 ordinance also established certain business districts in the city in which were permitted:\\n\\\"(10) Freight and other railway yards.\\\" (Art. 7, sec. 19)\\nThe tract was continued in a residential district by a zoning ordinance adopted by the city on May 19, 1943. Neither railway rights-of-way nor railway yards were included in the permitted uses in residential areas under the 1943 ordinance. However, such uses were authorized in light industrial districts by virtue of their not having been excluded from such districts.\\nOn June 1, 1960, the city adopted a new zoning ordinance, which again placed the land in question in a residential district. This ordinance, in R-l,, R-2 and R-4 dwelling districts, permitted:\\n\\\"(9) Rights-of-way and easements for public transportation and for public utilities.\\\" (Art. 5, sec. 39-12)\\nThe June 1, 1960, ordinance did not expressly provide for the use of land for railway yards. However, such use would be permitted, under certain circumstances, in particular industrial districts.\\nOn December 12, 1960, after the present controversy arose, the city adopted an ordinance amending and reordaining section 39-12 of Article 5 of the ordinance of June 1, 1960, so as to make the section read in the following language:\\n\\\" (9) Rights-of-way and easements for public transportation and for public utilities but not including railroad yards for marshalling or classifying cars, tracks for storage or parking railroad cars or trains of cars, freight depots or stations, loading platforms, train sheds, car or locomotive shops,, motor vehicle repair shops or storage yards, generating plants or transformer stations.\\\"\\nIt is upon these circumstances that the railway makes two contentions which it says point out the error of the trial court in denying it the relief for which it prayed.\\nThe railway first contends that the use to which it proposes to put the land in question is necessary for the performance of its duties as a public service corporation, imposed upon it by law, and that insofar as the zoning ordinance purports to prohibit such use and thus prevent the performance of such duties, the ordinance is void.\\nHere, the railway says that the Constitution and statutes of Virginia impose upon it the duty, \\\"to give reasonable and adequate service at reasonable rates and without delay\\\" and vest in the State Corporation Commission exclusive authority to supervise, regulate and control railroad companies. The city is powerless, the railway asserts, by its zoning ordinance to prevent the proposed use of the land because this would interfere with the railway's performance of its public duties and constitute an invasion of the State Corporation Commission's authority to control the railroad companies.\\nThe railway argues that it proved the necessity for its proposed use in the trial court but that the court erred in holding that such use was not necessary and that the ordinance did not, therefore, interfere with the railway's discharge of its public duties or encroach upon the State Corporation Commission's field of control.\\nThe railway concedes that it had the burden of proving the necessity of the proposed use and that such was a factual issue. Although not so stated, inherent in the railway's position is the tacit concession that if necessity was not proven, the ordinance would not then interfere with the performance of its public duties or affect the State Corporation Commission's authority and would not, for those reasons, be void. The railway's first contention, then, fails if the evidence was sufficient to support the trial court's finding of lack of necessity.\\nThe gist of the railway's case in this connection was that the dieselization of its system had resulted in longer trains which could not adequately be built and broken up and the cars classified and switched in its present facilities in Richmond, thus necessitating, so it claimed, the utilization of the 16-acre tract. It pointed to delays in the move ment of trains and delivery of cars which it attributed to the conditions in its Belle Isle and Richmond yards; it showed the amount of overtime wages it was required to pay to employees because of such delays; it demonstrated the unsafe working conditions present in its existing facilities; it stressed the business which it had lost to truck and barge companies and its inability to compete with those companies because it could not provide fast service; it complained that its Richmond Division business was \\\"static\\\" because of its, \\\"inability to expand and improve our physical facilities,\\\" and it asserted that if it intended \\\"to share\\\" in the new business arising from the, \\\"great potential in industrial development\\\" in eastern Virginia, \\\"we must prepare to handle it properly.\\\"\\nAll of this was sufficient to show that there was considerable room for improvement of the railway's facilities in Richmond; that with such improvement, it might be able to operate more economically and more efficiently, from its standpoint,, and with more safety to its employees; that it could put itself in a position, perhaps, to compete more profitably with truck and barge companies, and that it would, perchance, be able to garner a portion of the new business if such arose from the \\\"potential\\\" in industrial development in eastern Virginia.\\nBut, though the evidence was sufficient to show that utilization of the 16-acre tract might be necessary to effect improvement of the railway's internal problems, that does not mean, a fortiori, that it was sufficient to prove that there was a public necessity that the land be so utilized.\\nTo the contrary, there was no evidence that tended to indicate that the railway had, to any extent, failed to perform its public duty, that is, to give reasonable and adequate service at reasonable rates and without delay, or that it could not continue to do so in the reasonably foreseeable future. It was not shown that the railway's customers had ever suffered from the delays encountered by the railway in the conduct of its operations. There was no indication that there was, or reasonably soon would be,, any public need incapable of fulfillment by the railway. No directive or policy of the State Corporation Commission was alleged to have been violated or left unobserved. The evidence did not show that the railway's loss of business in the Richmond Division was due to the inadequacy of the Richmond facilities but, rather, that such loss was a part of a general pattern of the loss of business, generally, by railroads to truck and barge competition caused, in the words of one railway witness, primarily by, \\\"our inability to quote minimum rates.\\\" And finally, there was testimony that the ra\\u00fcway had not made full and proper use of its land in the Belle Isle and Richmond yards to provide more adequate classification and switching facilities.\\nIn short, it was insufficient for the railway to show that it, and it alone, would have benefitted by the proposed improvements. More was needed\\u2014proof that the proposed use, once accomplished, would, in some way, benefit the public as well. Under these circumstances, the necessity for the contemplated use of the 16-acre tract did not appear, and the trial court was fully justified in holding that the zoning ordinance of the city did not prevent the railway from performing its public duties or encroach upon the authority of the State Corporation Commission.\\nThe railway's other contention is that the residential zoning classification which has been assigned to its land is arbitrary and unreasonable and that the zoning ordinance of the city is,, therefore, invalid in its application to the tract in question.\\nEstablished principles of zoning law control the determination of the question here presented. Such principles were succinctly stated by Mr. Justice I'Anson in Board of Supervisors v. Carper, 200 Va. 653, 660, 107 S. E. 2d 390, when he wrote:\\n\\\"The general priniciples applicable to a judicial review of the validity of zoning ordinances are well settled. The legislative branch of a local government in the exercise of its police power has wide discretion in the enactment and amendment of zoning ordinances. Its action is presumed to be valid so long as it is not unreasonable and arbitrary. The burden of proof is on him who assails it to prove that it is clearly unreasonable, arbitrary or capricious, and that it bears no reasonable or substantial relation to the public health, safety, morals, or general welfare. The court will not substitute its judgment for that of a legislative body, and if the reasonableness of a zoning ordinance is fairly debatable it must be sustained. Board of County Supervisors of Fairfax County v. Davis, 200 Va. 316, 322 106 S. E. 2d 152, 157; West Bros. Brick Co. v. City of Alexandria, 169 Va. 271, 288, 192 S. E. 881, 888 (appeal dismissed 302 U. S. 658,, 58 S. Ct. 369, 82 L. ed. 508, rehearing denied 302 U. S. 781, 58 S. Ct. 480, 82 L. ed. 603). The exercise of the police power is subject to the constitutional guarantee that no property shall be taken without due process of law and where the police power conflicts with the Constitution the latter is supreme, but courts will not restrain the exercise of such power except when the conflict is clear. West Bros. Brick Co. v. City of Alexandria, supra (169 Va. at 281, 192 S. E. at 885).\\n\\\". . . '[T]he purpose of zoning is in general two-fold: to preserve the existing character of an area by excluding prejudicial uses, and to provide for the development of the several areas in a manner consistent with the uses for which they are suited. The regulations should be related to the character of the district which they affect; and should be designed to serve the welfare of those who own and occupy land in those districts.' See also I Yoldey, Zoning Law and Practice, \\u00a7 10, pp. 12, 13.''\\nIn line with these concepts are the provisions of the city charter, by the authority of which the city's zoning ordinance was enacted. The charter provides, in part, as follows:\\n\\\"The regulations and restrictions shall be uniform and shall apply equally to all land, buildings and structures and to the use and to each class or kind thereof throughout each district but the regulations and restrictions applicable in one district may differ from those provided for other districts.'' (\\u00a7 17.11)\\n\\\"The regulations and restrictions shall be enacted with reasonable consideration, among other things of the character of each district and its peculiar suitability for particular uses and with a view of conserving the value of land, buildings and structures and encouraging the most appropriate use thereof throughout the city.\\\" (\\u00a7 17.12)\\nThe trial court held that the action of the city in placing the railway's land in a residential classification was not arbitrary and unreasonable but was, instead, directly based upon considerations of public health, welfare and safety. The crucial question is, does the evidence sustain these findings?\\nAt the outset, it should be noted that the evidence before the trial court was in conflict, with the city's witnesses expressing views contrary to those of the railway's witnesses on the essential points relating to the proper zoning of the land. The trial court observed the witnesses and heard them testify. The court was free, as it chose to do, to accept the testimony of the city's witnesses rather than that given by the witnesses for the railway.\\nThe evidence before the trial court showed that the residential area in the neighborhood of the tract in question was one of the most desirable in the city, south of the James; that to implant in such an area the operation proposed by the railway, with its accompanying danger, undesirable noise and unpleasant view, would depreciate the value of the nearby residential property, curtail its enjoyment and introduce into the area an inharmonious use.\\nThe evidence further showed that the planning and development of the parkway and parks along the southern shore of the James had been in progress for many years, implemented by all of the zoning ordinances enacted since 1927 and given real force by the 1946 master plan, adopted by the city, which stated that, \\\"property lying between the [Riverside] drive and the river should be brought under public control in order to protect this property from uses which might be detrimental to use of the drive for pleasure driving.\\\" It was made clear that diversion of the railway's land to an industrial use would, at the same time, disrupt the planning of decades which envisioned use of the very tract in dispute as an integral part of the city's park system.\\nAnd, lastly, the evidence established that the zoning action of the city was not directed to any specific tract but to an entire zoning district, integrated into an overall plan for the development of the city, in accordance with the provisions of \\u00a7 17.11 and 17.12 of the city charter.\\nAll of this demonstrates, in our opinion, the correctness of the trial court's finding that the railway's land had not been arbitrarily and unreasonably zoned.\\nBut, the railway argues, the zoning action of the city unlawfully renders its land valueless because it assigns the land to a classification which only permits uses to which the land cannot physically be put.\\nHere, the railway cites and relies upon the rule that, \\\"zoning cannot render private property valueless.\\\" 8 McQuillin, Municipal Corporations, \\u00a7 24.45 (3d ed. 1957). Quoting further from McQuillin, the railway says that, \\\"If the application of the zoning ordinance has the effect of completely depriving the owner of the beneficial use of his property by precluding all practical uses or the only use to which it is reasonably adapted, the ordinance is invalid.\\\"\\nThe railway states that it, \\\"recognizes that it has the burden of proving that the Property is not reasonably adaptable to any of the uses permitted by \\u00a7 39.12 of the Zoning Ordinance.\\\" It insists, however, that it,, \\\"established unequivocally that the Property could not be used for any of the purposes\\\" permitted by the zoning ordinance.\\nSection 39.12 of the city zoning ordinance, in addition to per mitting, in R-l, R-2 and R-4 residential districts, rights-of-way and easements for public transportation and for public utilities, also permits, among other things,, single family dwellings and public and private parks and recreational areas.\\nThe trial court, in its written opinion, properly held that the railway had proved conclusively that the tract in question was not adaptable to use for single family dwelling purposes. The focus of the opinion was then directed to whether the railway had shown that the tract was not adaptable to public and private park and recreational purposes. The court concluded that not only had the railway failed in this respect but that the city had, on the other hand, proved that the tract was practically adaptable to public park use. Further, the court held that the tract was peculiarly adaptable to use as a private, non-commercial area for boating, fishing, water-siding, etc.\\nWe are of the opinion that the evidence sustains the findings of the trial court in this connection. In addition to the evidence which has already been recited relating to the city's planning for parkway and parks in the area involved,, the city's witnesses said of the proposal for a park on the tract that, \\\"there is a very great need for a park of this kind in the city . . . this particular stretch is unique and it is in the heart of Richmond and has tremendous recreational potentialities which any other city would be most jealous of . . . this would be an ideal area for park development, with the river as part of the park . . . it would be about the heart\\\" of an extended park or parkway along the river.\\nIt was also disclosed that the tract in question abounded in wildlife and botanical specimens and, to the delight of the fisherman, that the river in the area of the tract, \\\"is one of the best small-mouth bass streams in the state.\\\"\\nThe evidence further showed that the existing park areas of the city were far less than required by accepted planning standards; that the tract in question would provide the site for, \\\"a naturalist park\\u2014a type of park which the city needs very much\\\" and that there was no, \\\"other land similarly situated which the city could use for such a purpose\\\" on the bank of the James, \\\"except further upstream.\\\"\\nThe railway attempts to discredit the suitability of the tract for park purposes by asserting that access thereto could be had only by way of a grade crossing over its right-of-way, which it says it is unwilling voluntarily to grant. But this does not destroy the suitability of this land for these purposes. In the first place, the city's experts in park planning said that, as incidental to development of Riverside Drive, the scenic value of the tract would not be diminshed by the lack of access. Further, it is inconceivable that if the railway sold the land to a private group for development as a recreational area, it would not, as a part of its sale, also provide access thereto. And, if the city should be successful in its efforts to acquire the tract, it would have the right to proceed under the provisions of Code, \\u00a7 25-233 to secure permission of the State Corporation Commission to institute condemnation proceedings to provide proper access to the land.\\nFinally, the railway says that even conceding the adaptability of the land to park and recreational purposes, this does not justify the assignment of the land to a residential classification. Here, the railway argues that the zoning for such purposes relegates it to the position of owning property for which there is only one purchaser, the city, and that since the latter, \\\"has not attempted to acquire the Property\\\" for park purposes, \\\"even though it has been so zoned since 1927, the limitation which it has placed upon the land is unlawful, confiscatory and must be invalidated.\\\"\\nThe railway cites numerous cases in support of its position, a discussion of which would unnecessarily extend the length of this opinion. Suffice to say that the factual propositions presented in those cases are so substantially different from the situation now before us as to make the decisions unpersuasive here.\\nThe key point in this case, which renders the railway's position without merit, is the long history of the city's planning, acquisition and development of land in the area for parkway and park purposes, culminating in the ordinance of January 9, 1961, directing the acquisition by the city of the tract in dispute.\\nThe railway asserts that the acquisition ordinance was but mere, \\\"window dressing, adopted by the City in an effort to shore up what Southern contends to be the vulnerable Ordinance of December 12, 1960, \\\" the amendment to \\u00a7 39.12 of the zoning ordinance.\\nThe trial court held that the December 12, 1960, ordinance was merely definitive of the June 1, 1960, zoning ordinance which, if otherwise valid, prohibited the use of the land as proposed by the railway. The railway, on appeal, does not attack this ruling of the court. The December, 1960, ordinance, then, needed no \\\"shoring up\\\" and there is nothing in the record to indicate that the January 9, 1961, ordinance was \\\"window dressing,\\\" or anything other than the valid granting of authority to carry out the city's long-expressed intention to acquire the tract. Nor is there any evidence in the record to assail the city's statement that it, \\\"is ready, willing and able to acquire the property at a fair price.\\\"\\nUnder these circumstances, the application of the zoning ordinance to the land of the railway is not confiscatory. The only result is that the railway will not be permitted to put the land to the use it desires, a result which is not unusual or unexpected when the wishes of a property owner run counter to the provisions of a valid zoning ordinance.\\nThe trial court made an inspection of the area involved, conducted lengthy hearings and gave consideration to the arguments and citations of authority of the litigating parties. The court's able and comprehensive written opinion displays full knowledge of the evidence, a complete grasp of the issues involved and a thorough understanding of the applicable law. The court's decision is presumed to be correct and the burden is upon the railway to establish the error therein. This the railway has failed to do. Accordingly, the decree appealed from will be\\nAffirmed.\"}"

va/2058568.json

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+"{\"id\": \"2058568\", \"name\": \"James S. Newton v. City of Richmond\", \"name_abbreviation\": \"Newton v. City of Richmond\", \"decision_date\": \"1957-03-11\", \"docket_number\": \"Record No. 4645\", \"first_page\": \"869\", \"last_page\": \"875\", \"citations\": \"198 Va. 869\", \"volume\": \"198\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T02:00:28.516746+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James S. Newton v. City of Richmond.\", \"head_matter\": \"Richmond\\nJames S. Newton v. City of Richmond.\\nMarch 11, 1957.\\nRecord No. 4645.\\nPresent, All the Justices.\\nThe opinion states the case.\\nF. Ward Harkrader, Jr. (G. William White, Jr., on brief), for the plaintiff in error.\\nJames A. Eichner, Assistant City Attorney, (J. E. Drinard, City Attorney, on brief), for the defendant in error.\", \"word_count\": \"2552\", \"char_count\": \"14575\", \"text\": \"Miller, J.,\\ndelivered the opinion of the court.\\nJames S. Newton was convicted by a jury and fined one hundred dollars on the charge of operating an automobile on March 24, 1956 while under the influence of intoxicants in violation of \\u00a7 80, ch. 40, Richmond City Code of 1937. From a judgment confirming the verdict, we granted accused an appeal.\\nIn his assignments of error Newton challenges instruction No. 3 given at the instance of the city and complains of the court's refusal to give instructions A and B tendered by him. Error is also assigned to the court's refusal to strike certain evidence and direct the jury to disregard it.\\nThe city has moved us to reject Newton's assignments of error because of his failure to comply with Rule of Court 1:8 (formerly Rule 22), which follows:\\n\\\"In civil and criminal cases, all objections to writs of every kind, pleadings, instructions, notices, the admissibility of evidence or other matters requiring a ruling or judgment of the trial court, shall state with reasonable certainty the ground of objection, and, unless it appears from the record to have been so stated, such objections will not be considered by this court except for good cause shown, or to enable this court to attain the ends of justice.\\\"\\nThe record discloses that no objection was made to instruction No. 3, and upon the court's refusal to give instructions A and B, the only notation that appears in the record with regard to either of these instructions was stated thus: \\\"Exception noted.\\\" Before rendition of judgment accused moved the court to set the \\\"verdict of the jury aside as being contrary to the law and the evidence and for not allowing him certain instructions in the case\\\", but no ground of objection to the disallowance of instructions was stated.\\nIn construing and applying Rule 1:8 in Harlow v. Commonwealth, 195 Va. 269, 273, 77 S. E. 2d 851, we said:\\n\\\"The only objection to the rulings of the trial court as shown by the record is stated thus: 'Defendant objected and excepted to the action in giving instruction No. 2 offered by the Commonwealth, and to the refusal to give instruction F offered by defendant.'\\n\\\"Rule 1:8 requires that the trial judge be informed of the precise points of objection in the minds of counsel so that he may rule intelligently, thereby avoiding delay and the expense incident to appeals, reversals and new trials upon grounds of objection which might have been obviated or corrected in the trial court. Therefore this Rule must be adhered to unless the exceptions therein stated apply. Ross v. Schneider, 181 Va. 931, 27 S. E. (2d) 154; Rook v. Atl. Coast Line R. Co., 184 Va. 670, 36 S. E. (2d) 559; Regensburg v. Commonwealth, 159 Va. 1024, 167 S. E. 247. See annotations to Rule 1:8, Cum. Supp., 1950 Code.\\nIn Smith v. Commonwealth, 165 Va. 776, 781, 182 S. E. 124, the following objection was made: 'The foregoing instructions Nos. A, B, C, D, E, F, and G were offered by the defendant and refused bv the court to which action of the court the defendants excepted.' This objection was held insufficient because it failed to comply with Rule 22 (now 1:8).\\\"\\nNo objection was made to instruction No. 3, and nothing more than a mere \\\"exception\\\" was taken to the refusal to give instructions A and B. Clearly this does not constitute compliance with Rule 1:8, and the assignments of error pertaining to the giving and refusal of instructions will not be considered.\\nThe testimony appears in the record in narrative form, and the objection made to the admissibility of certain evidence introduced by the city, which is the basis of an assignment of error, is also set out in narrative form. It follows:\\n\\\"At this point counsel for the defendant moved the Court to strike from the record and instruct the jury to disregard all the testimony of Dr. Kaye relating to his findings of the blood test, which motion was overruled by the Court, and exception was made the the Court's ruling.\\\"\\nIn accused's brief it is stated that his motion to strike Dr. Kaye's testimony relating to his findings upon analysis of the blood taken from the vial was made because it had not been properly identified. In the record this motion follows immediately after Dr. Kaye's testimony, but as recorded it does not specify the ground of objection as set out in the brief.\\nDetermination of whether or not the objection meets the requirements of Rule 1:8 or should be considered by us to \\\"attain the ends of justice\\\" depends to some extent upon the scope of this witness's testimony and what part was open to question.\\nDr. Kaye is an expert in blood analysis, and the fact that blood taken from a vial that bore accused's name was analyzed by him and that his analysis was correct does not seem to have been questioned when he testified. However, his testimony, though in narrative form, does show that he was subjected to interrogation bearing upon and challenging the identification of the blood that he analyzed. In fact, when all of his narrative testimony is read and weighed, it does not appear that any of it was questioned or challenged except that part that tended to identify the blood. We are thus led to believe that when request to exclude his findings was made, opposing counsel and the court were aware that the motion was directed toward the identification of the blood that had been analyzed. The motion to exclude the evidence from the jury did not properly state the ground relied upon. Yet the character of the witness's testimony, and the setting and circumstances under which the motion was made, disclose its purpose, and to attain the ends of justice, the motion to exclude the blood analysis findings is held to have been sufficient.\\nWas the evidence identifying the blood sufficient to establish, beyond a reasonable doubt, that the sample analyzed was blood extracted from accused? If not, the motion to exclude Dr. Kaye's findings should have been sustained and the analysis stricken from the jury's consideration.\\nDr. Kaye is the State Toxicologist, and his qualifications as an expert in blood analysis to determine alcoholic content and the effect upon' the human system of alcohol in the blood stream were conceded. This expert witness expressed the opinion that the drunlt-o-meter test was not so accurate as the blood analysis test. He also said that \\\"alcohol may affect different people differently at different times,\\\" but that an \\\"alcoholic content of .15 or more\\\" in the blood \\\"is sufficient to cause any person to be under the influence of intoxicants\\\" and that a .23 per cent alcoholic content would be definitely consistent with intoxication.\\nIn testifying about his receipt and analysis of the sample of blood in question and how it came into his possession, he said:\\n\\\"I examined and tested a sample of blood bearing the label as being the blood of James S. Newton taken on March 24, 1956, at the Medical College of Virginia Hospital. I took this sample of blood from the safe as the hospital the day after the same had been taken. My analysis of this blood determined that the blood bore an alcoholic content of .23 per cent. In my opinion this definitely shows that the person from whom the sample was taken was under the influence of intoxicants to a degree where he was not fit to operate an automobile. (Emphasis added.)\\n\\n\\\"I did not take the sample, and I could not say for sure who did. I don't know who put it in the safe. I would assume the night superintendent did. I don't know who the physician who took the sample gave it to, but it had to be handled by at least the physician and superintendent, two sets of hands, before I received it. I don't know who handled it before I receive it. The label bore Mr. Newton's name. I never saw Mr. Newton before today.\\\"\\nThe only other testimony bearing upon the identity of the blood sample was given by officer G. H. Bowles, who arrested accused at the scene of a traffic accident. The record indicates that he testified prior to Dr. Kaye. In this connection he said:\\n\\\"I asked him if he would take the drunk-o-meter test, which he agreed to do, so I took him to the station house where the test was given. Mr. Newton requested the test in writing. He was not satisfied with the results of the test, and so he was advised that he could have a blood test, if he so desired. He was taken to the Medical College Hospital and blood was drawn from his arm by a physician there. I observed the talcing of the blood and the physician put a label on the container.\\\"\\nThe container from which the analyzed blood was taken bore the name \\\"James S. Newton\\\" but officer Bowles did not attempt to describe the label in any manner. He did not even say that accused's name was written on the label, nor was the label or vial produced at the trial. Neither the physician nor the night superintendent, the former of whom it is said labeled the container and the latter of whom is supposed to have handled it and placed it in the safe, testified, nor was their absence explained.\\nSo far as the record discloses, their identity is not known. The physician is not named nor is the recipient of the container identified for it is merely assumed that the night superintendent obtained the sample from someone and put it in the safe. Dr. Kaye did not know and could not attempt to say who or how many persons handled or had access to the sample of blood taken from accused before a vial bearing accused's name came into his possession the next day. In short, officer Bowles' testimony proves that a sample of Newton's blood was extracted by an unnamed party at the Medical College Hospital and put in a container and labeled. Dr. Kaye's testimony shows that the next day he found a vial of blood with accused's name on it in the safe at the Medical College Hospital and he analyzed that blood.\\nThe drunk-o-meter test was given Newton by an experienced officer shortly after Newton's truck had collided with a cab. It was accomplished by having accused breathe or blow into a small balloon \\\"the contents of which\\\" were then analyzed by chemicals and resulted in a finding of .24 alcohol content. There was also other evidence definitely tending to prove that Newton was under the influence of intoxicants when the truck he was driving collided with the cab. However, Newton testified that he was not under the influence of intoxicants and the testimony of another witness tended to corroborate him. Thus a jury issue was presented and the admissibility of the blood analysis was of vital importance.\\nIn Rodgers v. Commonwealth, 197 Va. 527, 531, 90 S. E. 2d 257, we said:\\n\\\"Such an analysis is important evidence in a trial of this sort, and care must be exercised to establish the essential links in the chain of evidence relied on to identify the blood analyzed as being the blood taken.\\n\\\" \\u00a3# It is rudimentary that a specimen taken from a human body for the purpose of analysis must be identified before such specimen or any analysis made from it attains standing as evidence of the condition of the person whose conduct is questioned. Without identification, there is no connection between the two. ' McGowan v. Los Angeles, 100 Cal. App. (2d) 386, 223 P. (2d) 862, 21 A. L. R. (2d) 1206, at 1212.\\n\\\"In proving identity legal presumptions may of course be relied on unless rebutted, e.g., that articles regularly mailed are delivered in substantially the same condition in which they were sent, Schacht v. State, 154 Neb. 858, 50 N. W. (2d) 78, 80; and that an analysis made by an official in the regular course of his duties was properly made, 20 Am. Jur., Evidence, \\u00a7 170-1, pp. 174-8. But where the substance analyzed has passed through several hands, the evidence must not leave it to conjecture as to who had it and what was done with it between the taking and the analysis. See generally Brown v. State, 156 Tex. Cr. 144, 240 S. W. (2d) 310; American Mut. &C Co. v. Industrial Accident Commission, 78 Cal. App. (2d) 493; 178 P. (2d) 40; Novak v. District of Columbia, 82 App. D. C. 95, 160 F. (2d) 588; State v. Romo, 66 Ariz. 174, 185 P. (2d) 757; Annotation, supra, 21 A. L. R. (2d) 1216, at 1220 ff.\\\"\\nMeasured by this test, the evidence does not establish beyond a reasonable doubt that the analyzed blood was in fact Newton's blood.\\nThe city attorney asserts that the alcoholic content shown by the drunk-o-meter test was so nearly identical with that found by the analysis that the former can and should be resorted to in aid of the blood's identification. We cannot accept this near coincidental result found by two wholly disconnected and dissimilar tests, which are admittedly unequal in scientific accuracy, as of probative value to identify the subject matter of the tests. To do so leaves too much, maybe all, to chance and hazard to meet the demands of acceptable proof.\\nNo reliable evidence of probative value has been offered to establish beyond a reasonable doubt that the blood extracted from Newton and then labeled in some manner was in fact the blood that was analyzed except that the vial obtained by Dr. Kaye from the safe bore accused's name. At best the meager proof leaves too much to conjecture, speculation and assumption to prove beyond a reasonable doubt that the analyzed blood was that extracted from accused.\\nThe motion to strike out and exclude Dr. Kaye's findings should have been sustained. This analysis showing the alcoholic content of the blood was undoubtedly prejudicial to accused and its admission without sufficient identification requires that the judgment be reversed and a new trial awarded.\\nNo specific objection was made to that part of Dr. Kaye's testimony which says that in his opinion the person whose blood he analyzed was intoxicated \\\"to a degree where he was not fit to operate an automobile.\\\" Yet upon a retrial he should not be allowed to express his opinion upon accused's fitness \\\"to operate an automobile.\\\" To do so goes beyond giving expert testimony as to degrees of intoxication and invades the province of the jury.\\nReversed and Remanded.\\nOrdinance adopted pursuant to Acts 1936, ch. 425, p. 1015, as amended, now \\u00a7 15-553, Code 1950.\\nFor recent legislation on the subject, not, however, affecting this case, see Acts 1956, ch. 557, p. 912.\"}"

va/2061366.json

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+"{\"id\": \"2061366\", \"name\": \"Nannie Terry Owens v. Charles Green Owens\", \"name_abbreviation\": \"Owens v. Owens\", \"decision_date\": \"1956-01-16\", \"docket_number\": \"Record No. 4450\", \"first_page\": \"681\", \"last_page\": \"684\", \"citations\": \"197 Va. 681\", \"volume\": \"197\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T20:40:57.172027+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Nannie Terry Owens v. Charles Green Owens.\", \"head_matter\": \"Richmond\\nNannie Terry Owens v. Charles Green Owens.\\nJanuary 16, 1956.\\nRecord No. 4450.\\nPresent, Hudgins, C. J., and Buchanan, Miller, Smith and Whittle, JJ.\\nThe opinion states the case.\\nWilliam Davis Butts, for the appellant.\\nPercy S. Smith and Robert J. Smith, for the appellee.\", \"word_count\": \"1246\", \"char_count\": \"7240\", \"text\": \"Whittle, J.,\\ndelivered the opinion of the court.\\nCharles Green Owens, hereinafter called complainant, was granted a divorce from the bonds of matrimony from Nannie Terry Owens, hereinafter called respondent. The decree was based upon alleged wilful desertion and abandonment for a period of one year. (Virginia Code, 1950, \\u00a7 20-91, as amended by Acts of Assembly, 1952, ch. 100, p. 110). We granted respondent an appeal.\\nThe first assignment of error charges: \\\"The court erred in entering the final decree of divorce because the record showed that no notice had been given to the defendant or her attorney that the depositions would be taken.\\\" This assignment is closely alan to the second, which reads: \\\"The court erred in entering the decree based on the depositions taken November 29, 1954, because the taking of the said depositions was contrary to both Sections 20-104 and 8-74, Code.\\\" These assignments will be treated together.\\nRespondent was a non-resident of Virginia, living in New York. A copy of the bill for divorce, accompanied by \\\"proof of service\\\" was served upon her there on November 3, 1954. Such service under our statute (Va. Code, 1950, \\u00a7 8-74) has the effect of an order of publication \\\"duly executed\\\".\\nThere is no merit in respondent's contention that she was not notified of the date on which depositions were to be taken. When a respondent has been duly summoned by publication and has not appeared in person or by counsel within the period allowed, no notice of the taking of the depositions is required unless ordered by the court. Va. Code, 1950, \\u00a7 8-73, 8-74, modified by Rule of Court 2:21; Lile's Equity Pleading and Practice (Meade), \\u00a7 248, p. 142; Baker v. Baker, 194 Va. 284, 290, 72 S. E. (2d) 632, 635. As will be seen, respondent did not appear within the period allowed.\\nRespondent next complains that the taking of the depositions was premature and contrary to Code, \\u00a7 20-104 and 8-74. With this we. do not agree. As aforesaid, respondent was served with a copy of the bill and \\\"proof of service\\\" in New York on November 3, 1954, and the depositions were not taken until November 29th.\\nSection 20-104, which deals with the taking of depositions against non-residents, and which provides for service by an order of publication, further provides that the taking of depositions cannot be commenced until \\\"at least ten days shall have elapsed after the order of publication shall have been duly published as required by law.\\\" This provision has not been violated in taking the depositions in this case. Personal service, such as was had in this instance, has the effect of an order of publication \\\"duly executed\\\". (Code, \\u00a7 8-74) The effect of the Rules (2:6(c) and 2:21) is to make the time after which no notice is required twenty-one days instead of ten days as provided in Code, \\u00a7 8-73 and 20-104. Rule 2:21 provides: \\\"No notice of the taking of depositions shall be required to be given to any defendant proceeded against by order of publication who has not appeared, unless specially ordered by the court.\\\" (Italics supplied). And Rule 2:6(c) gives a defendant personally served outside the State twenty-one days in which to appear before the cause can be set for hearing and docketed. Therefore, in this instance, the respondent, under Rule 2:21, is a defendant \\\"who has not appeared\\\"; and under Rule 2:6(c) the twenty-one-day provision applies.\\nIt was proper to take depositions at any time after at least twenty-one days had elapsed from the time of service. Therefore, the depositions were properly taken.\\nThe record discloses no appearance by respondent or her attorney prior to the taking of the depositions. No answer was filed within twenty-one days as prescribed by Rule 2:7, and the case was duly \\\"set for hearing and docketed\\\" as provided by Rule 2:8, although the bill for divorce could not be \\\"taken for confessed\\\" under the provisions of this Rule. See also Rule 2:11; Code, \\u00a7 20-99; Baker v. Baker, supra, 194 Va., at p. 290, 72 S. E. (2d), at p. 635.\\nAfter a cause has been set for hearing and docketed, (where no further notice is required), the complainant may proceed to take depositions. Lile's Equity Pleading and Practice (Meade), \\u00a7 251, p. 143.\\nThe third assignment of error challenges the sufficiency of the evidence, and in our view is controlling.\\nThe proof establishes the fact that these parties were married in New York on April 4, 1952, and \\\"cohabited as husband and wife\\\" until April 5, 1952, at which time complainant returned to the Army. His home was in Virginia.\\nComplainant testified that he and his wife had not lived together since the day after their marriage; that he was discharged from the Army in June, 1953, \\\"and she said she was not going to come to Richmond to live with me and told me that she didn't want to leave her people.\\\"\\nIn an effort to corroborate the testimony of complainant, one Alvin Bassfield testified that \\\" in June, 1953, he [complainant] was in Richmond and I saw him and he said that he had gotten out of Service and I also saw a letter from Nannie to Charles stating that she was not coming to Richmond because she liked New York better than living with him. \\\".\\nThe testimony of complainant and Bassfield comprises the evidence in the case. It will be observed that complainant nowhere mentions, the letter testified to by Bassfield; the date of the letter is not given, and there is no proof that Bassfield had any means of knowing respondent's handwriting.\\nComplainant was in the Army from April 5, 1952 to June, 1953. During this period he was not at his home in Virginia. While the bill for divorce was filed October 28, 1954, there is no evidence in the record to show when the alleged desertion occurred. Neither is there credible evidence, aside from complainant's own testimony, to show that respondent wilfully deserted and abandoned complainant. It can hardly be said that Bassfield's testimony in any way corroborates complainant. The letter itself was the best evidence but it was not introduced, and no excuse was given for not producing it. There are too many \\\"gaps\\\" in the testimony which would, of necessity, have to be filled by surmise and conjecture in order to grant a divorce on the meagre evidence in this case.\\nFull and satisfactory proof of desertion should be required in order for the court to determine the legal question involved. A decree of absolute divorce should not be granted unless the evidence relied upon proves wilful desertion without justification or excuse, and the burden of establishing this rests on the complainant. We have no such proof in the case under consideration. Walker v. Walker, 120 Va. 410, 412, 91 S. E. 180; Grim v. Grim, 126 Va. 245, 247, 101 S. E. 140; Davis v. Davis, 187 Va. 63, 69, 45 S. E. (2d) 918, 921; Raiford v. Raiford, 193 Va. 221, 235, 68 S. E. (2d) 888, 897.\\nFor the foregoing reasons the decree is reversed and the bill dismissed.\\nReversed and dismissed.\"}"

va/2068022.json

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+"{\"id\": \"2068022\", \"name\": \"Commercial Union Insurance Company v. Esther L. Moorefield, Administratrix, etc., et al.\", \"name_abbreviation\": \"Commercial Union Insurance v. Moorefield\", \"decision_date\": \"1986-04-25\", \"docket_number\": \"Record No. 830506\", \"first_page\": \"260\", \"last_page\": \"268\", \"citations\": \"231 Va. 260\", \"volume\": \"231\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T18:43:02.758927+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commercial Union Insurance Company v. Esther L. Moorefield, Administratrix, etc., et al.\", \"head_matter\": \"Commercial Union Insurance Company v. Esther L. Moorefield, Administratrix, etc., et al.\\nRecord No. 830506\\nApril 25, 1986\\nPresent: All the Justices\\nW. Charles Waddell, III for appellant.\\nSandra Keen McGlothlin (Keary R. Williams; McGlothlin & Wife; Williams & Gibson, on brief), for appellee.\", \"word_count\": \"3054\", \"char_count\": \"18139\", \"text\": \"COMPTON, J.,\\ndelivered the opinion of the Court.\\nThis appeal arises from an action on an insurance contract to recover for a fire loss occurring on residential property. The sole question is whether a verdict properly was set aside because of alleged juror misconduct which took place before the trial commenced.\\nIn February 1980, the Buchanan County residence of Fred J. and Esther L. Moorefield was damaged by fire. At the time, he was the named insured in a policy providing fire coverage issued by appellant Commercial Union Insurance Company. He died in February 1981. Seven months later, she, individually and as administratrix of her husband's estate, filed the present action against the insurer to recover under the policy for fire damage to the home and its contents. In the grounds of defense, the insurer alleged the fire was set deliberately by Fred Moorefield.\\nIn the first trial held in March 1982, a jury found for the defendant insurer. The plaintiffs filed a motion to set aside the verdict, alleging that \\\" [p] rior to selection of the jury panel and during the jury deliberation, the jury considered extraneous evidence which was not adduced at trial; and such evidence was used by the jury in reaching the verdict.\\\" After a hearing, the trial court sustained the motion and granted the plaintiffs a new trial.\\nIn the second trial in December 1982, another jury found for the plaintiffs and assessed damages in the amount of $40,000. We awarded the insurer this appeal. The sole assignment of error is that the trial court erred in granting the plaintiffs' motion to set aside the first verdict and in awarding a new trial.\\nIn the April 1982 hearing on the motion to set aside, only one witness testified. Called by the plaintiffs, Pricilla Ann Yates, age 28, testified that she was on the thirteen-person jury panel summoned for the first trial. Yates did not serve because she was stricken peremptorily.\\nYates testified that, while at the courthouse \\\"early that morning\\\" before trial, she \\\"and some more of the ladies were all standing there talking.\\\" According to Yates, Esther Moorefield \\\"had come through and when she did,\\\" June L. Dotson asked Yates \\\"who she was.\\\" Dotson, another panel member, later was selected and served on the jury. Yates testified she responded to Dotson, \\\" 'That is one of my girlfriends.' \\\" Dotson asked Yates how she \\\"got to know Esther.\\\" Yates told Dotson she and Moorefield were members of the same local ladies' auxiliary.\\nAccording to Yates, she told Dotson, \\\" 'She has had an awful hard life.' \\\" Dotson wanted to know \\\"why.\\\" Yates testified, \\\"I went into detail and said that a friend at the club had accused her husband of burning their house down.\\\" Yates further testified, \\\"June went on and asked me more questions about it.\\\"\\nReferring to juror Dotson, Yates also testified: \\\"She nor I neither one knew that Esther had a lawsuit in with an insurance company . I mean, that wasn't even part of our discussion. She was more or less wanting to find out about the Ladies' Auxiliary, but then she wanted to know how we become friends.\\\"\\nThe record shows that, during the voir dire, the trial court did not give a detailed summary of the pleadings. The court only advised the panel that they were about to hear an action by Moorefield, in her individual and representative capacities, against the insurer \\\"based on alleged losses sustained as a result of a fire to the residence or home.\\\" The basis of the insurer's defense was not mentioned during voir dire. Following this summary of the case, the trial court asked the jurors, among other things, whether they had \\\"discussed this case or heard it discussed,\\\" whether they were \\\"aware of any bias or prejudice in this case,\\\" and whether they knew of any reason why they could not render a fair and impartial verdict in the case. The record shows the prospective jurors shook their heads \\\"negatively\\\" in response to these questions.\\nTestifying on cross-examination during the hearing on the motion to set aside the verdict, Yates said that she had known Esther Moorefield \\\"for the last four or five years through the club\\\" and that she and Moorefield's nephew \\\"work together.\\\" Yates stated she learned the outcome of the trial from the nephew and called Moorefield, telling her that she may have caused Moorefield to lose the case due to the statements made to Dotson. At Moorefield's suggestion, Yates contacted Moorefield's attorney. The motion to set aside subsequently was filed.\\nAt the conclusion of the hearing on the motion, the trial court invited counsel to file memoranda of law on the issues raised and stated, \\\"the Court will give you an opportunity to present any evidence in the case or to recall [Yates], if. need be.\\\" One issue raised was whether the trial court, in a post-trial hearing, properly could receive testimony from a member of the jury panel.\\nIn a memorandum subsequently filed in June 1982, counsel for the insurer argued that if the court construed the incident as one of juror misconduct, as the plaintiffs alleged, the trial court had \\\"the power to summon June Dotson to court for an examination concerning whether the conversation occurred and, if so, whether it affected the jury deliberations.\\\" In July 1982, the trial judge notified counsel by letter that he had decided to award plaintiffs a new trial. The court reasoned that because the \\\"real issue\\\" in the case was whether or not the fire was set intentionally, \\\"the statements made in the presence of one or more jurors to that effect could very well have been very prejudicial.\\\"\\nWithin a week, the insurer filed a motion asking the court to reconsider its ruling. The insurer moved the court \\\"to summon June Dotson before the court to give oral testimony.\\\" Noting that in its prior memorandum it had \\\"requested\\\" that the \\\" 'tainted juror' \\\" Dotson be questioned about whether the alleged conversation occurred and, if so, whether it affected the jury deliberations, the insurer urged the court to \\\"exercise its power to examine June Dotson before ruling on the plaintiffs' motion.\\\"\\nFiled with the motion to reconsider was an affidavit executed by counsel of record for the insurer. The affidavit recited that counsel had contacted Dotson by telephone in May 1982 in order to determine whether she had a conversation with Yates on the morning of trial. The affidavit stated that Dotson said she \\\"recently\\\" had been asked by Yates if she remembered the conversation and whether Dotson had been influenced by it. The affidavit further shows Dotson said that \\\"she did not remember such a conversation and that, in any event, such a conversation would not have influenced her decision.\\\"\\nIn a further memorandum filed with the court in August 1982, the insurer argued: \\\"Virginia case law is clear that the Court may properly summon June Dotson to Court to be examined with respect to the alleged misconduct and any influence it may have had on the jury deliberation.\\\" Accordingly, the insurer contended, the court should summon the juror for examination before granting plaintiffs' motion to set aside.\\nIn September 1982, the trial judge stated in another letter to counsel that the court was still of the opinion that the motion for a new trial should be granted. The court said: \\\"By having another trial the appearance of impropriety brought about by the comments in the presence of the jurors about the fire being voluntarily set would be eliminated and therefore harmless.\\\" The court did not address the request that the juror be examined prior to a ruling on the motion to set aside. The ground assigned in the order granting the new trial was \\\"that extraneous statements made in the presence of one (1) or more jurors could have prejudiced the jury in determining the major issues of this action.\\\"\\nOn appeal, the insurer argues the trial court erred in using testimony from Yates alone as the basis for setting aside the verdict and erred in failing to interrogate Dotson before ruling on the motion. The plaintiffs disagree with the insurer and contend the trial court properly exercised its discretion in granting a new trial.\\nCertain settled principles relating to alleged unfair and improper influences on jurors in civil cases are essential to our review. All parties to the litigation are entitled to a fair and impartial trial by a jury of persons who \\\"stand indifferent in the cause.\\\" Code \\u00a7 8.01-358. A motion for a new trial on the ground of juror misconduct is addressed to the sound discretion of the trial court and, unless there has been abuse of that discretion, the judgment below will not be reversed on appeal. Litz v. Harman, 151 Va. 363, 375, 144 S.E. 477, 480 (1928).\\nBut neither the sole fact of irregularity nor the mere suspicion of injustice based upon the irregularity is sufficient to warrant setting aside a verdict. \\\"Mere suspicion or possible inferences cannot be allowed to overrule the orderly administration of justice, for otherwise there would be continued delays and many proper verdicts set aside. The importance of avoiding another trial, if the first trial was fair, is of paramount importance.\\\" Yellow Cab Corp. v. Henderson, 178 Va. 207, 221, 16 S.E.2d 389, 396 (1941), quoted in Davis v. Webb, 190 Va. 997, 1003, 59 S.E.2d 116, 119 (1950).\\nIn considering a motion to set aside when juror misconduct is alleged, the trial court has the affirmative duty \\\"to investigate the charges and to ascertain whether or not, as a matter of fact, the jury was guilty of such misconduct.\\\" Kearns v. Hall, 197 Va. 736, 743, 91 S.E.2d 648, 653 (1956). The trial court properly may summon one or more jurors to testify under oath in open court and to answer relevant questions propounded by the court and counsel about what had transpired. Dozier v. Morrisette, 198 Va. 37, 40, 92 S.E.2d 366, 368 (1956). This is an exception to the general rule that testimony of jurors is inadmissible to impeach their verdict. Id., 92 S.E.2d at 368. Ordinarily, jurors will not be allowed \\\"to explain their verdict by stating the reasons upon which their conclusions are based.\\\" Federal Deposit Insurance Corp. v. Mapp, 184 Va. 970, 983, 37 S.E.2d 23, 28 (1946).\\nAlthough juror testimony may be received upon an issue of juror misconduct, hearsay affidavits are not admissible in support of a motion for a new trial. Kearns v. Hall, 197 Va. at 742, 91 S.E.2d at 652. Nevertheless, such an affidavit may be sufficient to require the trial court to investigate the matters recited in the document. Id., 91 S.E.2d at 652. See Dozier, 198 Va. at 40, 92 S.E.2d at 368.\\nThe test to be used in determining whether a verdict should be set aside, when alleged juror misconduct may have affected the impaneling of jurors, is mandated by statute. Code \\u00a7 8.01-352 provides that an unintentional \\\"irregularity\\\" in the \\\"impaneling of jurors\\\" shall not be cause for setting aside a verdict or granting a new trial \\\"unless it appears . . . that the irregularity . be such as to probably cause injustice . in a civil case to the party making the objection.\\\" This standard was adopted in 1973 to be included in former Code \\u00a7 8-208.27. Acts 1973, ch. 439 at 651. We applied a predecessor to current \\u00a7 8.01-352 in Oyler v. Ramsey, 211 Va. 564, 179 S.E.2d 904 (1971), a damage suit involving a situation of alleged juror misconduct analogous to the instant case. There, under a slightly different statutory standard, we held a new trial was not warranted when a juror stood mute when the trial court asked the prospective jurors on voir dire: \\\" 'Do any of you have any close business relations with either of the parties or any of the attorneys in the case?' \\\" 211 Va. at 565, 179 S.E.2d at 905. Defense counsel learned after the verdict that plaintiff's counsel at the time of trial was representing one of the jurors in a damage claim pending in another court.\\nAgainst this background, we turn to the present facts to determine whether the trial court properly sustained the plaintiffs' motion to set aside, keeping in mind the precise ground of the motion, that is: \\\"Prior to selection of the jury panel and during the jury deliberation, the jury considered extraneous evidence which was not adduced at trial; and such evidence was used by the jury in reaching the verdict.\\\" These allegations are aimed at the effect of Yates' statements on the deliberations of the jury collectively and Dotson individually. Because of the charges made in the plaintiffs' pleading and because of the information disclosed in the affidavit, the trial court had the responsibility to fully investigate the matter to determine whether the situation was such \\\"as to probably cause injustice,\\\" according to the statutory standard.\\nUnder these circumstances, an inquiry into the effect of innocent but improper pre-trial statements made to a juror is incomplete when the trial court has not summoned and examined the particular juror to whom the statements were made. Information only from a non-juror, a person not privy to jury deliberations, is inadequate to form the basis for a conclusion that the jury's deliberative process was probably tainted by extraneous statements.\\nConsequently, we hold that the trial court abused its discretion in failing to summon and examine juror Dotson. Only Dotson, or perhaps other jurors, could competently furnish probative information to the court on the issues raised. For example, Dotson may not have fully heard or clearly understood Yates' statement that a third party said the husband intentionally set fire to his own home. Her attention'instead may have been on the activities of the ladies' auxiliary. Moreover, assuming Dotson heard and understood the statement, she may have discounted it as purely hearsay and rumor. And, even if she accepted the statement, Dotson may have disregarded it in an effort to be a conscientious juror and to give the parties a fair trial. In these connections, a court, without evidence on the subject, should not presume that a juror has lied on voir dire when, as here, she has denied that she had discussed the case or heard it discussed and has indicated that she was unbiased and could render an impartial verdict in the case.\\nFinally, plaintiffs argue the defendant waived its right to insist that Dotson be examined. According to the argument, defendant failed to summon Dotson, failed to make explicit, timely demand that the court take such action, and failed to arrange for a hearing at which Dotson's testimony could be presented. We reject this contention. As the recitation of the facts has demonstrated, before entry of the new-trial order defendant reminded the trial judge on three occasions that the court had the power to summon Dotson, and on two occasions formally moved the court to summon Dotson before finally ruling on the motion. Although counsel could have been more aggressive in obtaining Dotson's testimony, the trial court cannot shift to counsel its duty to conduct a full investigation. After all, a jury that has been formally impaneled becomes an integral part of the judicial process for the trial of that particular case. That judicial structure is under the direct supervision and control of the presiding judge. Understandably, counsel may be reluctant to assume control over any part of the judicial apparatus, even when the jury has been discharged after verdict. And, significantly, the trial court did not hold that counsel had waived the right to insist that Dotson be summoned and examined by the court.\\nFor these reasons, we conclude that the trial court erred in setting aside the first verdict. However, we will not reinstate the first verdict, as the defendant urges. Instead, we will remand the case for further hearing on the motion to set aside. In so doing, we will follow precedent established by this Court in Kearns v. Hall, supra.\\nIn that case, the trial judge set aside a defendants' verdict in a damage suit arising from an automobile accident on the ground of juror misconduct during a court-authorized view of the scene at which the trial judge and counsel were not present. In sustaining a motion to set aside the verdict, the court relied upon an affidavit of one of the attorneys for the plaintiff relating information he had obtained from four of the jurors, and upon the court's ex parte conversations with the deputy sheriff and deputy clerk who accompanied the jury on the view. Following a second trial resulting in a verdict and judgment for the plaintiff, this Court reversed. The Court held that the trial court had \\\"erred in refusing to call the jurors and the court's officers . as witnesses to testify under oath, as to the accuracy of the allegations of the jury's misconduct contained in [the] affidavit.\\\" 179 Va. at 743, 91 S.E.2d at 653. The Kearns Court did not reinstate the first verdict. Rather, the case was remanded to the lower court to determine whether the jury in the first trial was guilty of such misconduct as warranted the setting aside of their verdict. We shall do likewise.\\nAccordingly, the verdict and judgment in the second trial in favor of the plaintiff will be set aside, the order setting aside the first verdict and awarding a new trial will be annulled, and the case will be remanded to the trial court with directions. The trial court shall conduct a further investigation, within the framework of the motion to set aside and in accordance with the views expressed in this opinion, to determine whether any irregularity in impaneling the first jury was such as to probably cause injustice. If the court so finds, it shall sustain plaintiffs' motion to set aside, reinstate the second verdict, and enter judgment on it. If the court finds to the contrary, it shall overrule the plaintiffs' motion, reinstate the first verdict, and enter judgment on that verdict.\\nReversed and remanded.\"}"

va/2079872.json

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+"{\"id\": \"2079872\", \"name\": \"Robert H. Blodinger, et al. v. Broker's Title, Inc., et al.\", \"name_abbreviation\": \"Blodinger v. Broker's Title, Inc.\", \"decision_date\": \"1982-09-09\", \"docket_number\": \"Record No. 791723\", \"first_page\": \"201\", \"last_page\": \"205\", \"citations\": \"224 Va. 201\", \"volume\": \"224\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T02:00:23.589359+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert H. Blodinger, et al. v. Broker\\u2019s Title, Inc., et al.\", \"head_matter\": \"Richmond\\nRobert H. Blodinger, et al. v. Broker\\u2019s Title, Inc., et al.\\nRecord No. 791723.\\nSeptember 9, 1982.\\nPresent: All the Justices.\\nGeorge R. St. John (George R. St. John Associates, on brief), for appellants.\\nCraig T. Redinger (Lowe & Gordon, Ltd., on brief) for appellees.\\nAmicus Curiae: Commonwealth of Virginia, Virginia State Bar. (Marshall Coleman, Attorney General; Walter H. Ryland, Chief Deputy Attorney General; Leonard L. Hopkins, Jr., Assistant Attorney General, on brief), for appellants.\", \"word_count\": \"1129\", \"char_count\": \"7026\", \"text\": \"STEPHENSON, J.,\\ndelivered the opinion of the Court.\\nRobert H. Blodinger and four other attorneys (collectively, the attorneys) filed a declaratory judgment action against Broker's Title, Inc., and certain of its officers (collectively, the company or Broker's Title), asking the trial court to determine that the company was engaged in the unauthorized practice of law. The trial court dismissed the suit, holding there was no actual, justiciable controversy between the parties and, therefore, declaratory judgment did not lie. The attorneys appeal this ruling.\\nBroker's Title serves as the local agent for a title insurance company. As such, it participates in the closing of real estate transactions. The attorneys refused to deal with the company or to participate in closings where it was represented, believing to do so would aid the unauthorized practice of law.\\nCounsel for Broker's Title wrote the attorneys, denied the company was engaged in the unauthorized practice of law, and suggested the parties seek an \\\"amicable remedy\\\" to the situation. If this was not possible, the company suggested the parties seek a judicial determination. Less than two weeks later, the attorneys brought this suit. Thereafter Broker's Title brought an antitrust action against the attorneys in federal court. (The federal suit has been stayed pending a resolution of this case.)\\nBroker's Title asserts no actual controversy exists between the parties and, therefore, declaratory judgment is not proper. Virginia Bus Assoc, v. Tunnel Dist., 219 Va. 988, 990, 254 S.E.2d 54, 55 (1979); City of Fairfax v. Shanklin, 205 Va. 227, 229, 135 S.E.2d 773, 775 (1964). This assertion is contradicted by the company's actions. It was the company that suggested the parties seek a judicial determination, which the attorneys proceeded to do. It is the company that alleges, in the federal suit, that the attorneys are engaged in an illegal boycott. Clearly, an actual controversy exists between the parties.\\nThe company argues that while there may be a disagreement over whether it is engaged in the unauthorized practice of law, no rights or obligations of the attorneys have been infringed entitling them to a declaration of this fact. The attorneys, however, had a vested interest in this determination. They feared participation in closings with Broker's Title would subject them to possible disciplinary action. Conversely, they worried, as has turned out to be the case, their continued refusal to deal with the company would lead to possible antitrust liability.\\nThe attorneys were not seeking an answer to a hypothetical question. A determination of the legality of the company's activities was essential if the attorneys were to avoid the possibility of both disciplinary action and a law suit.\\nThe company asserts further that if a controversy exists it has matured past the point where declaratory judgment would lie. Citing Liberty Mutual Ins. Co. v. Bishop, 211 Va. 414, 177 S.E.2d 519 (1970), it argues once damages accrue the proper remedy is an action at law. Broker's Title argues it was damaged the moment the attorneys started their boycott.\\nUnlike Liberty Mutual, this case involves an alleged continuing harm and mounting damages. Further, the company's position is that the attorneys could not bring a declaratory judgment action because it was entitled to file an antitrust suit. This argument puts the attorneys at the company's mercy, forcing them to continue their boycott and subject themselves to possible growing liability until the company sees fit to file suit. Yet the purpose of the Declaratory Judgment Act is to \\\"afford relief from the uncertainty and insecurity attendant upon controversies over legal rights, without requiring one of the parties interested so to invade the rights asserted by the other as to entitle him to maintain an ordinary action therefor.\\\" Code \\u00a7 8.01-191.\\nFinally, Broker's Title argues declaratory judgment was precluded by the availability of other remedies. It argues a determination of its conduct could have been made through a criminal prosecution (Code \\u00a7 54-44), a writ of quo warranto (Code \\u00a7 8.01-636, or an advisory opinion of the Virginia State Bar (Rules of Court, Part 6, \\u00a7 IV, 11 10, 219 Va. 367-71 (1978)). We reject the argument that the existence of any of these remedies precluded the use of declaratory judgment.\\nNeither a criminal proceeding nor a writ of quo warranto was available to the attorneys, since such actions may be brought only on behalf of the Commonwealth. Nor does the fact that unauthorized practice of law is a misdemeanor preclude declaratory relief. The attorneys were not vigilantes seeking to prosecute the company in the stead of the Commonwealth. See Connecticut Soc'y. of Architects, Inc. v. Bank Bldg. & Equipment Corp., 151 Conn. 68, 193 A.2d 493 (1963); Wisconsin Pharmaceutical Ass'n. v. Lee, 264 Wis. 325, 58 N.W.2d 700 (1953). Their goal was not solely to stop the illegal conduct of others, but to insure their own conduct conformed to the law and the tenets of the legal profession.\\nFurther, the availability of an advisory opinion did not preclude the use of declaratory judgment. In fact, the attorneys sought help from the State Bar, only to be told all advisory opinions in regard to the subject recently had been withdrawn. In any event, an advisory opinion, based on a hypothetical set of facts, could not resolve questions regarding the actual conduct of Broker's Title. These issues could be resolved by declaratory judgment.\\nFor the reasons stated, we conclude the bill of complaint stated a cause of action for declaratory judgment under the statute, and the trial court erred in dismissing the suit. Indeed, the court had the \\\"inherent power, apart from statute\\\" to inquire into possible unauthorized practice of law. Richmond Ass'n of Cr. Men v. Bar Ass'n, 167 Va. 327, 335, 189 S.E. 153, 157 (1937). Accordingly, the decree of the trial court will be reversed and the cause remanded.\\nReversed and remanded.\\nThe attorneys were concerned that by dealing with Broker's Title they would violate Disciplinary Rule 3-101A which prohibits a lawyer from aiding the unauthorized practice of law. 216 Va. 1090 (1976).\\nAfter the present suit was brought, this section was amended to provide for the issuance of a writ against any person engaged in the unauthorized practice of a profession. Acts 1980, ch. 705.\\nWe have recently approved advisory opinions regarding the practice of law by title insurance companies. Rule 6.1-7.\"}"

va/2079916.json

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+"{\"id\": \"2079916\", \"name\": \"Norman Wayne Addison v. Commonwealth of Virginia\", \"name_abbreviation\": \"Addison v. Commonwealth\", \"decision_date\": \"1983-01-21\", \"docket_number\": \"Record No. 811198\", \"first_page\": \"713\", \"last_page\": \"719\", \"citations\": \"224 Va. 713\", \"volume\": \"224\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T02:00:23.589359+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Norman Wayne Addison v. Commonwealth of Virginia\", \"head_matter\": \"Richmond\\nNorman Wayne Addison v. Commonwealth of Virginia\\nJanuary 21, 1983.\\nRecord No. 811198.\\nPresent: All the Justices.\\nPaul J. Neal, Jr., for appellant.\\nBrian L. Buniva, Assistant Attorney General (Gerald L. Baliles, Attorney General, on brief), for appellee.\", \"word_count\": \"2192\", \"char_count\": \"12835\", \"text\": \"RUSSELL, J.,\\ndelivered the opinion of the Court.\\nThis appeal presents the question whether a confession, given in a sheriffs office at a time when no probable cause existed to arrest the defendant, was voluntary.\\nNorman Addison was convicted, pursuant to Code \\u00a7 18.2-80, of aiding and abetting the arson of an unoccupied building. At his non-jury trial, after offering proof of the corpus delicti, the Commonwealth relied on several statements made by the defendant to the sheriff and his deputies as proof of the defendant's participation in the crime. The defendant moved to suppress these statements on the ground that, notwithstanding his receipt of Miranda warnings and his election to discuss the case without the assistance of counsel, he gave them in coercive circumstances, while he was subjected to a custodial interrogation, and at a time when no probable cause existed to arrest him. The trial court found that the defendant was at the sheriffs office voluntarily and that the statements were untainted by coercion. The defendant appeals this ruling.\\nWe review the evidence, as we must, in the light most favorable to the Commonwealth. In the fall of 1980, Culpeper County had been plagued by a series of incendiary fires destroying unoccupied buildings. The suspicions of the local authorities had begun to focus on David Addison, the defendant's brother, and David's girlfriend, Susan Dodson. On the night of October 29-30, 1980, almost all the available personnel of the sheriffs office were on duty, maintaining routine patrol in the area where the fires had been occurring. Deputy Andy Hitt was maintaining surveillance of the vicinity where David Addison lived, from the intersection of Routes 522 and 650. A State Trooper discovered an abandoned house afire at the western end of the county about 11:30 p.m. and reported this information, through his dispatcher, to the sheriffs department.\\nA few minutes after midnight, a Ford Falcon sedan passed Deputy Hitt, southbound on Rt. 522 toward Culpeper. The deputy could not see the driver and did not recognize the car, but he turned on his flashing red lights and pursued it because it had no light on its rear license plate. He reported this fact by radio to the sheriff, who instructed him to the stop the Falcon. After he had followed it for nearly two miles, the Falcon turned into the driveway of the home of Charles L. Addison, the defendant's uncle. Hitt inquired of the dispatcher by radio and was informed that the Falcon was registered to Charles Addison. It was being driven by the defendant. The defendant got out of the Falcon and walked over to Hitt, who opened the door but remained seated in his cruiser while writing out a summons charging the defendant with \\\"improper equipment.\\\"\\nSheriff Peters, who was some distance away, heard the radio transmissions tracing the registration of the Falcon to someone named Addison. He remembered seeing such a Falcon parked in the driveway of the home of David Addison, the primary arson suspect, earlier that evening. He decided to investigate further. He arrived at Charles Addison's home about fifteen minutes after Hitt had stopped the defendant there. Two or three other sheriff's cars arrived on the scene. Their emergency lights were not operating, but the occupants were in uniform and were armed. No weapons were displayed.\\nThe defendant's aunt appeared in front of the house, and she and the defendant \\\"hollered\\\" back and forth. The defendant turned away from Hitt and appeared to be starting toward the house. Hitt testified: \\\". . . I told Mr. Addison when he started to walk toward the house, I told him that technically he was under arrest for these two summonses until I finished with him with this . . . if . . . that he walked away from me that I'd have to charge him with resist [sic].\\\" Hitt explained that this took place before the defendant signed the summons. When Hitt had completed the summons, he gave it to the defendant, who signed it.\\nThe defendant's aunt came out to the cars and gave the sheriff permission to take the Falcon to the sheriff's office in Culpeper and search it there. The sheriff told the defendant that he \\\"wanted to talk to him about the fire.\\\" He asked the defendant if he would agree to go to his office in Culpeper to talk about it. The defendant said yes, and got into the back seat of the sheriff's car. The sheriff testified that he did not consider the defendant to be under arrest because \\\"I had no grounds to stop him at that time.\\\" The usual practice of the department in making a night arrest was at least to pat the subject down for weapons. In this case, however, the defendant was not frisked, searched, handcuffed, or physically touched by any of the officers. He was not ordered into the car or told that he was required to go with them. The sheriff testified that if the defendant had refused to go with him, he could have gone home.\\nWhen the sheriff and the defendant arrived at the office in Culpeper, about eight miles from the Charles Addison house, the defendant was offered coffee, which he declined, and was given the usual Miranda warnings. He was never told that he was free to leave, but never asked about it. Defense counsel asked the sheriff:\\nQ. And once you got to the Sheriffs Department, would he have then also been free to go?\\nA. If he had said, I'm going home, he could have walked out.\\nQ. And you wouldn't have done anything?\\nA. No, sir. I[t] wouldn't have pleased me, I'll say that. But\\nno, I think that I would have just let him go at that time.\\nThe sheriff called deputy William Partlow, an investigator who knew the defendant. Partlow had had a previous conversation with him at the scene of one of the earlier fires. Partlow arrived about 2:00 a.m., gave additional Miranda warnings to the defendant, and interviewed him for an additional two hours, off and on. During this time the defendant gave him the three statements under attack. Partlow also testified that the defendant never asked to leave, was never told either that he was or was not free to leave, but, in fact, would have been permitted to depart at any time if he had indicated a desire to do so. He was in an interview room with Partlow most of the time, but was occasionally unattended. Near the end of the interview, he expressed a wish to go to the bathroom. Partlow waited outside the door while he was there and then followed him back to the interview room. This occurred, however, after the defendant had given a statement admitting his participation in the crime, when probable cause existed to arrest him.\\nPartlow testified that the defendant showed no reluctance to discuss the case with him, but rather that he wanted to do so in an effort to get some kind of help for his brother, David Addison. The defendant said that he thought David had experienced some psychological problems in the military service, that David's job had been \\\"secretive\\\" and that he wasn't sure what his difficulties had been, but that \\\"he was concerned for him and that he was doing this as a way to get David help.\\\" The defendant's statement made it clear that he knew David had been setting the fires since July. He said that \\\"David has said these fires are really bothering him, especially the barn where the Baldwin boys lost their equipment.\\\" David promised him on the night of October 29, he said, that \\\"this was going to be the last fire.\\\"\\nThe defendant argues that this case is controlled by Dun-away v. New York, 442 U.S. 200 (1979). There, a Rochester detective, having a \\\"lead\\\" casting suspicion on Dunaway for a robbery-murder, ordered two detectives to \\\"pick him up\\\" and \\\"bring him in.\\\" The \\\"lead\\\" fell far short of the probable cause requisite for an arrest. Dunaway was taken into custody, placed in an interrogation room in the police station, and given Miranda warnings. He was questioned about an hour and during this time made self-incriminating statements. He was never told that he was under arrest, but he was in fact detained. The trial court found as a fact that Dunaway would have been physically restrained if he had attempted to leave. The Supreme Court held, following the rule in Brown v. Illinois, 422 U.S. 590 (1975), that detention for custodial interrogation offends the Fourth and Fourteenth Amendments unless supported by probable cause. The Court further held, following Brown, that while Miranda warnings and waivers would establish the \\\"voluntariness\\\" of the confession for Fifth Amendment purposes (and, presumably, would also satisfy the Sixth Amendment guarantee of the right to counsel), it would not \\\"attenuate the taint\\\" of an unconstitutional seizure of the person in violation of the Fourth Amendment. Thus the exclusionary rule was applied to Dunaway's confession.\\nThis case is distinguished from Dunaway by the trial court's finding of fact, supported by credible evidence, that the defendant, prior to giving the statements which established probable cause, was never seized or detained against his will. The trial court correctly applied the rule of Witt v. Commonwealth, 215 Va. 670, 212 S.E.2d 293 (1975), where we held that the resolution of factual questions underlying the admissibility of confessions is in the province of the trial judge, is to be determined by the preponderance of the evidence, and is to be accorded the same weight on appeal as a finding of fact by a jury. Id. at 674, 212 S.E.2d at 296-97. Here, as in Witt, the trial court conducted a full pre-trial hearing on the defendant's motion to suppress his statements, and gave counsel wide latitude in examining the witnesses. The trial court was in a unique position to resolve the conflicts in their testimony.\\nThe defendant, however, says that the evidence supporting the trial court's finding of voluntariness was incredible. He invites our attention to United States v. Mendenhall, 446 U.S. 544, reh'g denied, 448 U.S. 908 (1980), in which a part of the opinion in which only two justices joined, stated: \\\"We conclude that a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.\\\" Id. at 554. In Gomez v. Turner, 672 F.2d 134 (D.C. Cir. 1982), the court declined to follow the above-quoted dictum in Mendenhall, holding that \\\"in this circuit the test of whether a seizure has occurred is whether a reasonable person, innocent of any crime, would have felt free to walk away under the circumstances.\\\" Gomez at 141. [Emphasis added].\\nThe defendant argues that the totality of the circumstances surrounding his conversation with Partlow was coercive. He stresses the fact that he was never expressly told that he was free to leave. But this is no more controlling than the unarticulated state of mind of the officers. See Comm. v. E. A. Clore Sons, 222 Va. 543, 281 S.E.2d 901 (1981). The issue on appeal is simply whether there was credible evidence to support the trial court's finding that the defendant voluntarily accompanied the sheriff and was not detained against his will. On this point we need look no further than his expressed desire to talk to the authorities to seek help for his troubled brother.\\nThe defendant also assigns error to the trial court's refusal to strike the evidence of an expert who testified that the value of the burned building, before the fire, would have exceeded $100, which was then the minimum threshold for a felony conviction under Code \\u00a7 18.2-80. The defendant conceded the qualifications of the witness, but contends that his reasoning was faulty and that he had no experience in this kind of appraisal. This argument lacks merit. The validity of the reasoning process by which an expert reaches his opinion is within the province of the trier of fact, and goes only to the weight to be accorded to his opinion. See Ford v. Ford, 200 Va. 674, 107 S.E.2d 397 (1959). The trial court, for reasons articulated in the record, found it worthy of credit.\\nFor the foregoing reasons, the judgment will be\\nAffirmed.\\nBecause the defendant could not produce a valid registration card at the time, a charge of \\\"no registration\\\" was added.\\nThe summons is not in evidence. Its effect, of course, was to command the accused to appear in court at the time and place specified. Rule 3A:4(c)2. By signing it, the accused gave his written promise to appear at that time and place. The giving of such a promise by the accused requires that the officer \\\"forthwith release him from custody.\\\" Code \\u00a7 19.2-74A.1.\"}"

va/2087358.json

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+"{\"id\": \"2087358\", \"name\": \"Time Insurance Company v. Doris J. Bishop, Individually and as Administrator of the Estate of Beeken E. Bishop, DECEASED\", \"name_abbreviation\": \"Time Insurance v. Bishop\", \"decision_date\": \"1993-01-08\", \"docket_number\": \"Record No. 920348\", \"first_page\": \"48\", \"last_page\": \"59\", \"citations\": \"245 Va. 48\", \"volume\": \"245\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:15:22.675740+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Time Insurance Company v. Doris J. Bishop, Individually and as Administrator of the Estate of Beeken E. Bishop, DECEASED\", \"head_matter\": \"Time Insurance Company v. Doris J. Bishop, Individually and as Administrator of the Estate of Beeken E. Bishop, DECEASED\\nRecord No. 920348\\nJanuary 8, 1993\\nPresent: All the Justices\\nMelissa Warner Scoggins; Daniel Patrick Frankl (Gentry, Locke, Rakes & Moore, on briefs), for appellant.\\nCharles R. Better, III (Paul M. Barnett; Crow gey & Barnett, on brief), for appellee.\", \"word_count\": \"4030\", \"char_count\": \"24527\", \"text\": \"JUSTICE WHITING\\ndelivered the opinion of the Court.\\nThe sole issue in this insurance case is whether the evidence establishes as a matter of law that an insured knowingly misrepresented a material fact in his application for insurance.\\nOn July 1, 1987, Beeken E. Bishop applied for a policy of hospitalization and life insurance to be issued by Time Insurance Company (Time). Charles M. James, an agent of Time, filled in an application for this insurance by recording Bishop's answers to the questions on Time's application form. In a section entitled \\\"Evidence of Insurability,\\\" the following question was asked of Bishop: \\\"To the best of your knowledge and belief, have you or any family member applying for the insurance: 1. Ever had any indication, diagnosis or treatment for: . . . use of alcohol or drugs?\\\" James recorded Bishop's negative response in the \\\"No\\\" block opposite this question.\\nIn fact, however, unbeknownst to Time or James, Dr. Michael E. Slayton, an internal medicine specialist in Montgomery County, had been treating Bishop during the preceding 15-month period for physical problems arising out of Bishop's abuse of alcohol. Dr. Slayton's treatment involved eight office visits and one hospitalization.\\nJames checked the appropriate \\\"Yes\\\" blocks to indicate Bishop's affirmative responses concerning his confinement in a hospital during the preceding five years and his treatment by a physician within the preceding two years. And, with the information furnished by Bishop, in the blank space next to these questions, James wrote: \\\"Beeken had Broken Blood Vessell in Esophagus in Sept 1986 Treated at Montgomery Hospital by Dr. Slayton for 10 Days \\u2014 Fully Recovered.\\\" (Quoted with errors in spelling and grammar from the original.) Again, unknown to Time and James, Dr. Slayton's notes regarding this hospital discharge stated, among other things, that Bishop had \\\"alcoholic liver disease with portal hypertension [and] chronic alcohol abuse.\\\"\\nThe application contained the following language just above Bishop's signature:\\nI represent that all statements and answers to the above questions are complete and true to the best of my knowledge and belief. I apply for insurance to be issued solely in reliance upon this application. I understand that the insurance contains a two year contestability period in the event of material misrepresentation.\\nAfter James completed the application, Bishop read and signed it. On August 1, 1987, without any further investigation, Time issued the policy.\\nThereafter, Dr. Slayton and others continued to treat Bishop for his alcohol-related and other problems. When Time received the bills for such treatments, it began an independent investigation of Bishop's medical history to determine whether it should contest coverage on the ground that Bishop had given false information in his application.\\nHowever, on January 31, 1989, before Time's investigation was completed, Bishop died in a Roanoke hospital. Bishop's death was attributed to cirrhosis of the liver caused by his excessive use of alcohol.\\nUpon Time's refusal to pay Bishop's bills for treatment and the life insurance benefits provided by the policy, his widow, Doris J. Bishop, individually and as administrator of his estate, filed this action seeking damages for Time's breach of contract. Time agreed in the trial court that if it were liable under its policy, it would be responsible for Bishop's medical, nursing, and hospital expenses in the sum of $130,625.10 and life insurance benefits of $10,000.\\nAt a jury trial, Time asserted that the policy was void because of Bishop's material misrepresentations, and it introduced evidence in support of this affirmative defense. One of Time's witnesses was Dr. Slayton, whose notes of Bishop's first interview disclose that Bishop \\\"readily admits that his main problem is one of excessive alcohol consumption. For at least the last 5 years, he has drank alcohol to excess of as much as a fifth a day.\\\"\\nIn describing his treatment of Bishop for liver disease and associated illnesses linked to Bishop's abuse of alcohol in the 15 months prior to Bishop's application for insurance, Dr. Slayton testified that:\\nWe explained to him that we thought he had liver disease as a complication of alcohol exposure.\\n[W]e spoke to him at length about the concerns that we had about continued alcohol exposure on his part and requested that he abstain henceforth. We tried to educate him as to the risk of not doing so.... I dare say that the gist of the conversation was that continued alcohol exposure would be extremely dangerous and may result in further complications of the problem other than what we had already seen.\\nAnd in each of Bishop's eight office treatments, Dr. Slayton stressed the importance of abstaining from alcohol.\\nTo assist Bishop in abstaining from alcohol, Dr. Slayton prescribed two drugs that are similar to drugs used in detoxification facilities. Initially, he prescribed Valium or Diazepam, anti-anxiety medication that \\\"might be beneficial to [Bishop] if indeed he was going to be compliant as far as alcohol abstinence.\\\" When Bishop reported on one of those visits that he had resumed drinking, Dr. Slayton changed the prescription from Valium or Diazepam to Librium, another anti-anxiety medication, to help \\\"wean\\\" Bishop off alcohol.\\nThe court submitted to the jury the issue whether Bishop's alleged misstatements were \\\"knowingly\\\" made. The jury returned a verdict in favor of the plaintiff in the agreed amount, and Time appeals.\\nTime had the affirmative burden of \\\"clearly\\\" proving that Bishop's representation was untrue and that it was material to the risk. Mutual of Omaha Ins. Co. v. Dingus, 219 Va. 706, 713, 250 S.E.2d 352, 355 (1979). We think Time carried this burden of proof.\\nIn responding to Time's questions, Bishop clearly misstated the facts in denying that he \\\"ever had any indication, diagnosis or treatment' ' for ' 'use' ' of alcohol. The evidence is overwhelming that Dr. Slayton was treating Bishop for conditions directly related to the latter's use of alcohol.\\nAnd Bishop's representation would be material to the risk if it would reasonably influence the insurance company in deciding whether to issue the policy. Mutual of Omaha Ins. Co. v. Echols, 207 Va. 949, 953-54, 154 S.E.2d 169, 172 (1967). Steven Liebherr, Time's underwriting supervisor, testified that given the information on Bishop's application, Time would have decided to issue the policy without any additional investigation and at standard premium rates. Liebherr testified further, however, that if Bishop had disclosed that he had consulted Dr. Slayton for alcohol-related problems during the 15-month period preceding the issuance of the policy, Time would not have issued the policy.\\nThere was no contradiction of Time's evidence relating to the falsity or the materiality of Bishop's representation. Hence, the trial court should have ruled as a matter of law that the representation was both untrue and material.\\nThe plaintiff argues correctly, however, that because Bishop's application recited that his answers were correct \\\"to the best of [his] knowledge and belief,\\\" Time had the further burden of establishing that Bishop's false statement was \\\"knowingly\\\" made. Old Republic Life Ins. Co. v. Bales, 213 Va. 771, 773, 195 S.E.2d 854, 856 (1973). And, the plaintiff maintains, because the evidence was in conflict on this issue, a jury question was created.\\nWe do not agree. In this phase of the case, the plaintiff called Susan Dawn Pauley, director of the substance abuse division of the local Community Services Board, and qualified her as \\\"an expert in the field of substance abuse counselling.\\\" Over Time's objection, Pauley was permitted to testify that alcohol abusers unconsciously use a \\\"defense mechanism\\\" termed \\\"denial,\\\" by which they \\\"deny information.\\\"\\nHowever, even though a jury may have accepted Pauley's testimony of Bishop's probable \\\"denial\\\" or \\\"rationalization\\\" as an indication that he did not believe he had a problem with alcohol, whether he had a problem with alcohol was not the question he was asked in the application. Rather, the question was whether, to the best of his knowledge and belief, he had ever had any indication, diagnosis or treatment for use of alcohol. And, with respect to that question, Pauley's testimony about Bishop's state of denial was irrelevant.\\nA similar observation may be made concerning testimony elicited from members of Bishop's family. These witnesses testified variously that no one ever told Bishop he was an alcoholic, that neither the family members nor Bishop himself regarded him as an alcoholic because he worked regularly and led a normal life, that after his period of hospitalization in September 1986, he said \\\"[he would] never touch another drop,\\\" and that he did, in fact, abstain for a period of time. But with the question in the application focused narrowly upon indication, diagnosis, or treatment for the use of alcohol, whether Bishop himself or someone else believed he was not an alcoholic was completely beside the point.\\nGiven the evidence concerning Bishop's excessive use of alcohol, the admission he made to Dr. Slayton that alcohol was his \\\"main problem,\\\" the warnings he received from Dr. Slayton about the effect of his continued use of alcohol upon his already damaged liver, and the prescriptions for drugs Dr. Slayton gave him to help him stop drinking alcohol, we hold that no reasonable person could conclude that Bishop unknowingly made the misrepresentation concerning whether he had any indication, diagnosis, or treatment for the use of alcohol. The trial court erred, therefore, in failing to rule as a matter of law that Time is not liable to the plaintiff for breach of contract.\\nAccordingly, we will reverse the judgment of the trial court and enter final judgment here for Time.\\nReversed and final judgment.\\nJUSTICE COMPTON, with whom JUSTICE STEPHENSON and JUSTICE LACY join, dissenting.\\nI do not agree that final judgment should be entered for the insurer. Rather, I would reverse the judgment in favor of the plaintiff and remand the case for a new trial upon all issues.\\nThe main inquiries upon appeal are whether the testimony of the plaintiff's expert witness created an issue for the jury upon the question of knowing misrepresentation and whether the expert erroneously was permitted to give an opinion on the ultimate fact in issue. Upon the former inquiry, the majority says that the evidence established conclusively that Bishop knowingly made a false statement in his application and that the insurer was, therefore, entitled to judgment as a matter of law. I disagree.\\nThe printed application contained a section labelled ' 'Evidence of Insurability.\\\" The following language appeared in this section: \\\"To the best of your knowledge and belief, have you or any family member applying for insurance: 1. Ever had any indication, diagnosis or treatment for: . . . i. use of alcohol or drugs?\\\" When asked this question, the decedent answered in the negative, and the agent checked a block labelled \\\"No\\\" opposite the question.\\nThe agent asked the following application question: \\\"2. Been confined to a hospital or similar institution within the past 5 years?\\\" The decedent answered in the affirmative, and the agent checked the \\\"Yes\\\" block opposite this question.\\nThe agent asked the following additional question: \\\"3. Been seen or treated by a physician or taken any medication within the past two years?\\\" The decedent answered affirmatively, and the agent checked the \\\"Yes\\\" block opposite this question.\\nThe agent documented on the application additional information furnished at the time by the decedent pertaining to questions 2 and 3. In space available opposite those questions, the agent wrote the following, complete with spelling and grammatical errors: \\\"Beeken had Broken Blood Vessell in Esophagus in Sept 1986 Treated at Montgomery Hospital by Dr. Slayton for 10 days \\u2014 Fully Recovered.\\\"\\nThe essence of the testimony of Pauley, the plaintiff's expert, was that persons who abuse alcohol employ unconsciously a \\\"defense mechanism\\\" known as \\\"denial.\\\" This is manifested, she said, when \\\"people deny information. They find ways in their mind, through rationalizing or minimizing or other ways, to basically deny something that is real for their life or that others see exists.\\\" She stated, \\\"Rationalizing means taking information and making it make sense to you in some way even if it doesn't make sense to other people.\\\" Elaborating, she testified that rationalizing \\\"is a lot of excuse making. But it is really not just excuse making. It is turning it around so it makes sense to you even though it may not make sense to other people.\\\" She said that because of \\\"denial\\\" and \\\"rationalization,\\\" abusers of alcohol \\\"believe their own excuses.\\\"\\nThe following colloquy between the witness and plaintiff's counsel illustrates the expert's opinions as related to the decedent:\\n\\\"Q. Okay. How could somebody go to the doctor and, whether he volunteered it to the doctor or the doctor in getting a medical and social history forced them to admit, 'Yes, I have drunk as much as a fifth a day,' and the doctor says, 'You have liver problems and your drinking hurts your liver problems and you have to stop,' and every time he checks back with the doctor the doctor reiterates about, 'You have to stay off the liquor,' how could somebody like that not know that they have an alcohol problem?\\n\\\"A. Because denial is a very powerful and potent defense mechanism. I deal with people who have had charges directly related to alcohol usage, have family members confront them with information about their behavior when they are under the influence who still remain in denial. The family even remains in denial; it is not just the individual.\\n\\\"Things usually have to get pretty chaotic or some major crisis occurs before something breaks through and someone realizes that alcohol and drugs have something to do with this situation. Denial is [a] very powerful defense mechanism.\\\"\\nCode \\u00a7 38.2-309 provides, as pertinent, that no statement in an application for insurance \\\"made before . . . loss under the policy shall bar a recovery upon a policy of insurance unless it is clearly proved that such answer or statement was material to the risk when assumed and was untrue.\\\" Materiality of a misrepresentation is an affirmative defense, and the burden is upon the insurer of \\\"clearly\\\" proving that the applicant's answers in the application were material to the risk assumed and were untrue. Harrell v. North Carolina Mut. Life Ins. Co., 215 Va. 829, 831, 213 S.E.2d 792, 794 (1975). \\\"In a case like this, whether a representation is made and the terms on which it is made are questions of fact for the jury; but when a misrepresentation is proved, its materiality is a question of law for the court.\\\" United States Fidelity & Guaranty Co. v. Haywood, 211 Va. 394, 396, 177 S.E.2d 530, 532 (1970). \\\"A fact is material to the risk to be assumed by ah insurance company if the fact would reasonably influence the company's decision whether or not to issue a policy.\\\" Mutual of Omaha Ins. Co. v. Echols, 207 Va. 949, 953-54, 154 S.E.2d 169, 172 (1967).\\nAs I have said, whether a statement is untrue is a question of fact for the jury in an ordinary case, and the burden is upon the insurer to prove \\\"clearly\\\" that the statement in an application is untrue. Clear proof of the mere falsity of the statement is sufficient in the ordinary case. But this is not the ordinary case because in the application submitted by the decedent it was recited that his answers were correct \\\"to the best\\\" of his \\\"knowledge and belief.\\\" Where there is such a recitation, the burden upon the insurer increases from that specified in Code \\u00a7 38.2-309 to clear proof that the answer is knowingly false. Old Republic Life Ins. Co. v. Bales, 213 Va. 771, 773, 195 S.E.2d 854, 856 (1973).\\nProof leading to a determination of the knowing falsity of a statement made on an application for insurance by a potential insured is uniquely subjective. The inquiry is just what the applicant knew and believed at the time of the application. Here, the insurer's evidence that Bishop knew about his condition resulting from the use of alcohol was contradicted by the testimony of the plaintiff's expert witness. That testimony established that Bishop suffered from the defense mechanism of \\\"denial\\\" and thus supported a jury finding that he told the truth as he knew and believed it at the time of the application. In other words, there was sufficient evidence for a jury to conclude that Bishop answered the questions on the application truthfully to the best of his knowledge and belief; the jury could have found that Bishop never actually believed or accepted the fact that he was being treated for the use of alcohol, even though the answer he gave was blatantly false.\\nThe majority dismisses the expert opinion testimony as \\\"irrelevant\\\" because the majority claims that whether Bishop believed \\\"he had a problem with alcohol was not the question he was asked in the application.\\\" However, the obligation of a potential insured is to \\\"answer questions truthfully and as he understands them.\\\" Flannagan v. Mutual Ins. Co., 152 Va. 38, 67-68, 146 S.E. 353, 361 (1929). Not only does the expert testimony create a dispute regarding Bishop's state of knowledge and belief at the time of the application, the expert testimony also creates an issue upon whether the question was \\\"misleading, ambiguous or confusing,\\\" id.., to one who suffered from denial.\\nIn Sterling Insurance Co. v. Dansey, 195 Va. 933, 81 S.E.2d 446 (1954), this Court construed the meaning of the language in an insurance application that answers are ' 'true to the best knowledge and belief of the applicant.\\\" Id at. 941, 81 S.E.2d at 451. In that case, the question whether an insurance applicant made a knowing misrepresentation was implicitly recognized as a question for the jury. Id. at 937, 81 S.E.2d at 449. Subsequently, in Old Republic Life Insurance Co. v. Bales, supra, this Court explicitly recognized that, in the face of conflicting evidence, whether a knowing misrepresentation was made was \\\"peculiarly within the province of the jury.\\\" 213 Va. at 772, 775, 195 S.E.2d at 856, 858. Cf. Mutual of Omaha Ins. Co. v. Echols, supra (recognizing that the issue of a knowing misrepresentation was a question for the jury but finding that the applicant's \\\"statements were not true and correct to the best of her knowledge and belief' ' because of admissions in her motion for judgment). Because I believe the evidence on the issue of Bishop's knowing misrepresentation to the question as he understood it was in dispute, I believe the issue was peculiarly within the province of the jury.\\nConsequently, I would hold that the trial court did not err in submitting the misrepresentation issue to the jury. The insurer argues, however, that even if the issue was properly submitted to the jury, the plaintiff's expert was allowed to testify at least on one occasion, to the ultimate fact in issue and that the trial court committed reversible error in permitting such testimony. I agree.\\nIn Virginia, we are committed to the rule that while an expert witness may be permitted to express an opinion relating to the existence or nonexistence of facts not within common knowledge, the expert cannot give an opinion upon the precise or ultimate fact in issue, which must be left to the trier of fact for determination. Webb v. Commonwealth, 204 Va. 24, 33, 129 S.E.2d 22, 29 (1963); Venable v. Stockner, 200 Va. 900, 904-05, 108 S.E.2d 380, 383-84 (1959); Thornton v. Commonwealth, 113 Va. 736, 744, 73 S.E. 481, 484 (1912). Accord Bond v. Commonwealth, 226 Va. 534, 538, 311 S.E.2d 769, 771-72 (1984).\\nHere, plaintiff's counsel directed the expert Pauley's attention to the application in question. The expert testified that she found \\\"significant' ' the fact that the insurer had placed the use of alcohol and drugs on the same line in the application. She said: \\\"Often someone who has a problem with just alcohol doesn't see themself as a substance abuser or a drug addict. Many people don't even recognize that alcohol is a drug.\\\" She testified: \\\"Putting those two on the same line is something that, in my opinion, with Mr. Bishop could feed in to denial.\\\"\\nAgain, referring to the application, plaintiff's counsel elicited the following answer with this question:\\n\\\"Q. You mentioned 'to the best of your knowledge and/or belief.' What is the significance of that so far as Beeken Bishop is concerned?\\n' 'A. The other piece is that as you go down he did answer no to that. But when he was asked about seeing a doctor or being in a hospital he answered yes.\\n\\\"In my opinion, that is another indicator that he wasn't consciously saying, 'Oh, I have an alcohol thing that I need to hide,' because he did acknowledge that he had seen a doctor and been in a hospital and had given them information. . . .\\n\\\"Basically what I mean by that is that he acknowledged yes to the question that had to do with health and no to questions that had to do with alcohol or drugs, which is another indicator to me of someone in denial of what is affecting the problem.\\\"\\nThe foregoing testimony, reasonably construed, violates the principle of law I have just articulated. No matter what twist the plaintiff tries to place on the language in arguing that the expert was merely advancing her \\\"denial\\\" theory, the fact remains that the testimony amounted to a statement by the expert that Bishop did not knowingly make a misrepresentation in response to question l(i) on the application.\\nThe jury was told that because the use of drugs was linked to the use of alcohol on the same line, \\\"with Mr. Bishop\\\" that \\\"could feed in to denial.\\\" Clearly, this comments on Bishop's intention, knowledge, and belief at the time he answered the question. Additionally, the witness opined that a comparison of the \\\"No\\\" answer to question l(i) and the \\\"Yes\\\" answers to questions 2 and 3 is \\\"another indicator\\\" that Bishop was not \\\"consciously saying\\\" he needed to conceal his alcohol problem. Manifestly, that answer is ' 'another indicator' ' that the witness was stating that Bishop did not knowingly give a false answer on the application. That determination was for the jury to make, not the expert witness.\\nConsequently, I would remand the case for a new trial on all issues due to the foregoing error.\\nOrdinarily, the trial court decides the issue of materiality as a matter of law where a misrepresentation has been proved. Harrell v. North Carolina Mut. Life Ins. Co., 215 Va. 829, 831-32, 213 S.E.2d 792, 794 (1975). Inexplicably, here, the trial court neither decided the issue itself nor submitted it to the jury.\\n\\\"Indication\\\" is defined in part as \\\"something (as a signal, sign, suggestion) that serves to indicate.\\\" Webster's Third New Int'l Dictionary 1150 (1986).\\nBecause we consider Pauley's testimony about Bishop's state of denial irrelevant, we do not decide whether it also constituted an inadmissible expression of opinion on the ultimate fact in issue.\\nOur research discloses only one similar case, Leigh v. Consumers Nat'l Life Ins. Co., 240 Or. 290, 401 P.2d 46 (1965). There, an applicant had been told that he was an alcoholic, and he had received treatment for alcoholism. In an application for insurance, he answered in the negative a question whether he had \\\"ever taken treatment or a 'cure' for alcoholism.\\\" The insurance company denied coverage, claiming that because the insured had been treated for alcoholism, the answer was false.\\nOregon law required that false representations on applications for insurance be shown to have been \\\"knowingly made.\\\" The insured contended that even though his answer was false, it was not made knowingly because he was \\\"in denial.\\\" Holding that the misrepresentation had been made knowingly, the Oregon court pointed out that the application did not ask whether the insured believed he was or was not an alcoholic, but whether he had been treated for alcoholism. Id. at 291-93, 401 P.2d at 47.\"}"

va/2090978.json

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+"{\"id\": \"2090978\", \"name\": \"Dorothy Black, et al. v. Richard Edwards, Executor of the Estate of James G. Keene, Deceased, et al.\", \"name_abbreviation\": \"Black v. Edwards\", \"decision_date\": \"1994-06-10\", \"docket_number\": \"Record No. 930788\", \"first_page\": \"90\", \"last_page\": \"94\", \"citations\": \"248 Va. 90\", \"volume\": \"248\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T22:18:27.751862+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Dorothy Black, et al. v. Richard Edwards, Executor of the Estate of James G. Keene, Deceased, et al.\", \"head_matter\": \"Dorothy Black, et al. v. Richard Edwards, Executor of the Estate of James G. Keene, Deceased, et al.\\nRecord No. 930788\\nJune 10, 1994\\nPresent: All the Justices\\nHarry J. Kostel, for appellants.\\nLouis J. Rickman, Jr., for appellees.\", \"word_count\": \"1332\", \"char_count\": \"8111\", \"text\": \"JUSTICE WHITING\\ndelivered the opinion of the Court.\\nThis case involves the mutual and reciprocal wills of a husband and wife. The primary issue is whether, as a matter of law, the testimony of the scrivener of the wills established a contract between the spouses for the disposition of their property upon the death of the survivor.\\nIn May or June 1991, James G. Keene and his wife, Rebecca T. Keene, asked Gerald D. Robertson, an attorney, to prepare wills for them leaving their respective properties to the survivor. The wife had no children; the husband had children by a prior marriage.\\nWhen Robertson told the Keenes that the survivor would have the power to dispose of their combined estates, the Keenes responded that they wanted the survivor's estate divided among eight persons. Thereafter, each spouse designated four relatives as beneficiaries. Robertson then explained to the Keenes that if they signed mutual and reciprocal wills, \\\"this would be a contract between the two of them, that they would each, the ultimate survivor, would agree to leave the property as the wills were originally drawn.\\\"\\nRobertson testified that he had not drawn a joint will, or a separate contract reflecting such an agreement, nor had he recited the agreement in the wills because he thought the Keenes \\\"had a clear understanding of . . . how the ultimate beneficiaries would take the property.\\\" Instead, Robertson prepared a will for each spouse under the terms of which the surviving spouse would receive the entire estate of the first decedent and the eight parties named by the Keenes in their wills would receive the estate of the survivor.\\nOn June 27, 1991, both wills were executed. The wife died two months later, on August 31. The husband revoked his June 27 will by executing a will on September 10, 1991. That will left his property to his two sons and the same four relatives he had named in his June 27 will. The husband died on November 7, 1991, and shortly thereafter his September 10 will was probated.\\nThe persons named by the wife as beneficiaries in her June 27 will filed this suit against the executor and beneficiaries of the husband's September 10 will. In this suit, they sought their share of the husband's estate under the June 27 will. At an ore tenus hearing, the plaintiffs presented Robertson's testimony and other evidence and the defendants presented no testimony. After argument, the court concluded that Robertson's testimony was \\\"not sufficient to establish a reciprocal will\\\" and found for the defendants. The plaintiffs appeal.\\nWe recognized the enforceability of contracts to make mutual and reciprocal wills in Williams v. Williams, 123 Va. 643, 648-49, 96 S.E. 749, 751 (1918). Proof of such contracts may be supplied by \\\"competent witnesses who testify to admissions of the testators, or it may result as an implication from the circumstances and relations of the parties and what they have actually provided for by the instrument. Direct evidence is not necessary.\\\" Id. at 649-50, 96 S.E. at 751. However, such proof must be \\\"clear and satisfactory.\\\" Id. at 649, 96 S.E. at 751.\\nFurther, the standard of review of the evidence in this case has been established by statute and our cases construing that statute.\\nWhen a case is decided by a court sitting without a jury and, as here, parties object to the decision on the ground that it is contrary to the evidence, the judgment of the trial court will not be set aside, \\\"unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it.\\\" Code \\u00a7 8.01-680.\\nCity of Hopewell v. County of Prince George, 239 Va. 287, 296, 389 S.E.2d 685, 690 (1990).\\nHowever, a trial court's conclusion based on evidence that is \\\"not in material conflict\\\" does not have this binding effect on appeal. The trier of fact must determine the weight of the testimony and the credibility of the witnesses, but it \\\"may not arbitrarily disregard uncontradicted evidence of unimpeached witnesses which is not inherently incredible and not inconsistent with facts in the record.\\\"\\nHankerson v. Moody, 229 Va. 270, 274, 329 S.E.2d 791, 794 (1985) (citations omitted).\\nApplying these principles, we conclude that the uncontradicted testimony of Robertson, an unimpeached witness, was \\\"not inherently incredible\\\" and was consistent with the facts in the case. That testimony clearly and satisfactorily indicated that both spouses understood that, upon execution of their wills, they were contracting to leave the property remaining at the survivor's death to the eight parties named in those wills. Under these circumstances, the trial court's decision that the evidence was \\\"not sufficient to establish a reciprocal will\\\" was plainly wrong.\\nEven so, defendants note that the marital residence held by the husband and wife as tenants by the entirety was the wife's only property interest established by the record. Thus, the defendants contend, there was no consideration for the husband's alleged contractual agreement. We reject this argument because sufficient consideration is supplied by the mutual agreement that the third parties named as beneficiaries in each spouse's June 27 will would ultimately receive the balance of the survivor's estate. See Williams, 123 Va. at 648-49, 96 S.E. at 751.\\nFinally, the defendants argue that the contract cannot be enforced because it was an oral postnuptial agreement which was not in writing, as required by Code \\u00a7 20-155 and -149. Code \\u00a7 20-155 provides:\\nMarried persons may enter into agreements with each other for the purpose of settling the rights and obligations of either or both of them, to the same extent, with the same effect, and subject to the same conditions, as provided in \\u00a7 20-147 through 20-154 for agreements between prospective spouses, except that such marital agreements shall become effective immediately upon their execution.\\n(Emphasis added.) Code \\u00a7 20-150 provides in pertinent part that parties to a premarital agreement may contract with respect to \\\"[t]he disposition of property upon separation, marital dissolution, death\\\" and the \\\"making of a will . to carry out the provisions of the agreement[.]\\\" Code \\u00a7 20-149 requires that a \\\"premarital agreement shall be in writing and signed by both parties.\\\"\\nIn support of their expansive reading of \\\"marital agreements,\\\" the defendants note that their construction of Code \\u00a7 20-155 is consistent with \\u00a7 2-701 of the Uniform Probate Code, 8 U.L.A. 155 (1983), which requires written evidence of any party's agreement not to revoke a will. However, Virginia has not adopted such a provision, and we do not think that the legislature intended Code \\u00a7 20-155 to require that contracts between spouses be in writing, while permitting other persons to make such contracts orally.\\nRather, we are of opinion that the emphasized portion of Code \\u00a7 20-155 clearly limits its provisions to those contracts affecting those \\\"rights and obligations\\\" that arise from the marital relationship. Here, each spouse's contractual intent to benefit third parties after the death of both spouses did not affect the \\\"rights and obligations\\\" arising from the Keenes's marital relationship. Thus, we conclude that Code \\u00a7 20-155 is inapplicable.\\nFor these reasons, we will reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion.\\nReversed and remanded.\\nDorothy Black, Lale Bee Hicks, Larry J. Wright, Curtis J. Wright, and Charles O. Wright are named as complainants in this action. The copy of the husband's June 27 will in the record lists Dorothy W. Black, Lain Bee Hicks, Larry J. Curtis, and Charles O. Wright as the four persons apparently named by the wife. The record contains no explanation of the insertion of the name of a fifth plaintiff or of the discrepancy between the underlined names in the will and bill of complaint.\"}"

va/2109328.json

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+"{\"id\": \"2109328\", \"name\": \"William H. Trout, et al. v. Commonwealth Transportation Commissioner of Virginia\", \"name_abbreviation\": \"Trout v. Commonwealth Transportation Commissioner\", \"decision_date\": \"1991-01-11\", \"docket_number\": \"Record No. 900259\", \"first_page\": \"69\", \"last_page\": \"75\", \"citations\": \"241 Va. 69\", \"volume\": \"241\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T01:08:23.014082+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William H. Trout, et al. v. Commonwealth Transportation Commissioner of Virginia\", \"head_matter\": \"William H. Trout, et al. v. Commonwealth Transportation Commissioner of Virginia\\nRecord No. 900259\\nJanuary 11, 1991\\nPresent: All the Justices\\nGlenn H. Silver (C. Thomas Brown; Rust, Rust & Silver, on briefs), for appellants.\\nJames F. Hayes, Senior Assistant Attorney General (Mary Sue Terry, Attorney General; K. Marshall Cook, Deputy Attorney General; Richard L. Walton, Jr.; Senior Assistant Attorney General; Stephen C. Price; Price & Zimmerman, on brief), for appellee.\", \"word_count\": \"1727\", \"char_count\": \"10757\", \"text\": \"JUSTICE RUSSELL\\ndelivered the opinion of the Court.\\nThe sole question presented in this eminent domain appeal is whether a condemnor, who has obtained defeasible title to condemned land by recording a certificate of deposit, may terminate condemnation proceedings as a matter of right by taking a non-suit. We answer the question in the negative.\\nOn March 13, 1989, the Commonwealth Transportation Commissioner of Virginia (the Commissioner), acting pursuant to Code \\u00a7 33.1-121, caused a certificate of deposit to be recorded among the land records of Loudoun County. The effect of the recordation was to vest in the Commissioner defeasible title to a\\nO. 9892-acre tract situated at the intersection of Routes 7 and 28, formerly owned by William H. Trout and Barbara A. Trout (the owners). On March 24, 1989, the Commissioner filed a petition for condemnation in the circuit court. The court appointed commissioners to ascertain compensation and continued the case to December 12, 1989, for trial.\\nPursuant to Rule 4:1(b)(4), the owners addressed interrogatories to counsel for the Commissioner, requesting that the Commissioner identify any expert witnesses he intended to call at trial and provide summaries of their expected testimony. In response, the Commissioner filed only incomplete answers to the interrogatories. The court, on the owners' motion, entered an order on December\\n1, 1989, compelling the Commissioner to provide \\\"complete and full responses\\\" on or before December 6.\\nWhen the case came to trial on December 12, the Commissioner had not complied with the court's order. The owners made a motion in limine to preclude the Commissioner from adducing any expert testimony at trial. The court granted the motion. The Commissioner then made a motion for a continuance, which the court denied.\\nFaced with this unappealing prospect, the Commissioner moved the court for a voluntary nonsuit pursuant to Code \\u00a7 8.01-380. The owners indicated that they would agree to a voluntary dismissal of the proceeding if the Commissioner would pay the expert witness fees, attorneys' fees, and other costs they had incurred in trial preparation, but objected to a nonsuit which would deny them such compensation. The court took the question under consideration and, on December 21, issued a letter opinion ruling that the Commissioner was entitled to a nonsuit. The court entered an order on January 5, 1990, nonsuiting the proceeding without compensation to the owners. We granted the owners an appeal.\\nThe power of eminent domain is vested in the Commissioner by Code \\u00a7 33.1-89. The procedure governing highway condemnation proceedings was, prior to 1970, \\\"mutatis mutandis the same as is prescribed by law for railroad corporations,\\\" except as altered by former Title 33. Michie Code 1942, \\u00a7 1969j(2); Code 1950, \\u00a7 33-59. In 1970, a self-contained procedure was prescribed in Title 33.1 for highway condemnations. Acts 1970, c. 322; Code \\u00a7 33.1-98 (1970 Repl. Vol.). There were no statutory provisions permitting the condemnor to dismiss the proceeding without the owners' consent. There were provisions, still in force, authorizing the court to invalidate a certificate of deposit upon the condemnor's motion, but the owner was given the right to pursue a claim for damages caused thereby \\\"in the proper proceeding.\\\" Code \\u00a7 33.1-125.\\nIn 1972, \\u00a7 33.1-98 was again amended to provide a cross reference to Title 25. Acts 1972, c. 765. The statute presently provides: \\\"Proceedings for condemnation under this article shall be instituted and conducted in accordance with the procedures provided in Chapter 1.1 (\\u00a7 25-46.1 et seq.) \\u00f3f Title 25 of this Code, except that the provisions of \\u00a7 33.1-119 through 33.1-132 shall be applicable to such proceedings.\\\" Code \\u00a7 33.1-98.\\nThe cross reference above is to the Virginia General Condemnation Act, Code \\u00a7 25-46.1 et seq., which provides that all condemnation proceedings shall be brought and conducted according to its provisions \\\"[u]nless otherwise specifically provided by law.\\\" Code \\u00a7 25-46.2 (emphasis added). That act contains a provision permitting a condemnor to obtain a voluntary dismissal of a condemnation proceeding, as a matter of right, if no hearing has begun, if the condemnor has not acquired title or a lesser interest in the property, if the condemnor has not taken possession of the property, and if the condemnor pays the owners their reasonable expenses actually incurred in preparation for trial. Code \\u00a7 25-46.34(a). Subsequent subsections provide for dismissal, subject to similar conditions, after a hearing has begun, or at any time by stipulation of the parties, but there are no provisions giving the condemnor authority to dismiss the proceeding as a matter of right after he has acquired an interest in, or taken possession of, the property. Similarly, Title 33.1, relating to highway condemnations, is silent with respect to dismissal after the Commissioner has acquired title or taken possession.\\nAgainst that background, the trial court held that the non-suit statute, Code \\u00a7 8.01-380, applied. That section permits a party to suffer a voluntary nonsuit as a matter of right \\\"as to any cause of action or claim,\\\" subject to specified conditions. The court referred to the definition of \\\"action\\\" in Code \\u00a7 8.01-2 as including \\\"all civil proceedings whether at law, in equity, or statutory in nature.\\\" Because the word \\\"action\\\" is included in \\\"cause of action,\\\" the court held that the nonsuit statute was made specifically applicable to condemnation proceedings by its own terms. Although Code \\u00a7 25-46.2 provides that the Virginia General Condemnation Act governs all condemnation proceedings \\\"[u]nless otherwise specifically provided,\\\" the court held that the nonsuit statute was indeed such a specific provision.\\nWe do not agree with that analysis. An \\\"action\\\" and a \\\"cause of action\\\" are quite different. \\\"Action\\\" is defined by Code \\u00a7 8.01-2, as noted above. We defined \\\"cause of action\\\" in Roller v. Basic Construction Co., 238 Va. 321, 327, 384 S.E.2d 323, 326 (1989), as \\\"a set of operative facts which, under the substantive law, may give rise to a right of action.\\\" Because of that difference, there are no express terms in the nonsuit statute making it specifically applicable to condemnation proceedings.\\nThe right to take a nonsuit on the eve of trial, notwithstanding a defendant's loss of time and expense incurred in preparation, and notwithstanding any disruption which may result to the court's docket, is a powerful tactical weapon in the hands of a plaintiff. The General Assembly has provided, in Code \\u00a7 8.01-380, several conditions to give balance to the exercise of that right. Nonsuit remains, however, distinctly a weapon in the arsenal of a plaintiff.\\nAs we recently pointed out in Hamer v. School Bd. of the City of Chesapeake, 240 Va. 66, 72-73, 393 S.E.2d 623, 627 (1990), the parties to a condemnation proceeding are not in the position of plaintiffs and defendants in traditional actions or suits. The exercise of the power of eminent domain, and the implementation of the constitutional just-compensation clause which circumscribes it, grow out of an entirely different history. Traditional burden-of-proof rules are inapplicable to condemnation cases. Id. at 73-74, 393 S.E.2d at 628. The petitioner in a condemnation case is, therefore, not a traditional plaintiff. Although he has the statutory duty to institute the proceeding, he has no ultimate \\\"risk of nonpersuasion.\\\" Id. at 74, 393 S.E.2d at 628.\\nIndeed, after the condemnor has acquired title and instituted the proceeding for the ascertainment of just compensation, he is in the position of a defendant. The owner is the party seeking an award of compensation and damages; the condemnor's interest is to defend against an excessive award. The condemnor, therefore, is not entitled to nonsuit the proceeding over the owner's objection because of any traditional advantages inhering in the position of a plaintiff in an action at law.\\nWhen the 1972 amendment transferred highway condemnation proceedings to the Virginia General Condemnation Act, such cases became subject to Code \\u00a7 25-46.34, which, as noted above, permits dismissal by the condemnor as a matter of right where no title or possession has been acquired, but makes no provision for such a dismissal after the condemnor has acquired an interest in, or possession of, the property. We think the legislative silence on this subject is significant.\\nPrior to the adoption of the present statutory scheme, we had held in Board of Supervisors v. Proffit, 129 Va. 9, 16-17, 105 S.E. 666, 668 (1921), that the petitioner in a highway condemnation had the absolute right to dismiss the proceedings \\\"at any time before any rights have vested\\\" (emphasis added). In Keys v. Shirley, 153 Va. 461, 466, 150 S.E. 401, 402-03 (1929), however, we reversed a dismissal of a highway condemnation case, where no compensation had been paid to the owner for his costs and expenses, after the Commissioner had taken possession of the land. There, we said:\\n[Presumably [,] the land is in use as part of a highway. The [owner] has been deprived of his property and has not received any compensation or damages for the injury done him, and the Commonwealth has no title to the land. In such a situation, each party has vested rights in the controversy, and the proceeding should not be dismissed, except by consent, until these are determined.\\nIn subjecting highway condemnations to the Virginia General Condemnation Act, the General Assembly was, presumably, aware of the state of the law established by Proffit and Keys. See Wicks v. Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 (1974), appeal dismissed, 421 U.S. 901 (1975). The language of Code \\u00a7 25-46.34, made applicable to highway condemnations by the 1972 amendment, indicates a legislative intent to leave that state of the law undisturbed. Accordingly, we conclude that a condemnor has no right to a nonsuit or a voluntary dismissal of a condemnation proceeding, without the owners' consent, after any interest in, or possession of, the property has been acquired.\\nFor that reason, we will reverse the order of dismissal and remand the case to the trial court for further proceedings.\\nReversed and remanded.\"}"

va/2109363.json

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+"{\"id\": \"2109363\", \"name\": \"Thomas H. Oxenham, III v. Virginia Johnson\", \"name_abbreviation\": \"Oxenham v. Johnson\", \"decision_date\": \"1991-03-01\", \"docket_number\": \"Record No. 900544\", \"first_page\": \"281\", \"last_page\": \"299\", \"citations\": \"241 Va. 281\", \"volume\": \"241\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"\", \"parties\": \"Thomas H. Oxenham, III v. Virginia Johnson\", \"head_matter\": \"Thomas H. Oxenham, III v. Virginia Johnson\\nRecord No. 900544\\nMarch 1, 1991\\nPresent: Carrico, C.J., Compton, Stephenson, Russell, Whiting, and Hassell, JJ., and Poff, Senior Justice\\nElizabeth Oxenham Davis (Susan K. Rohde; Thomas H. Oxenham, III; Oxenham, Davis & Rohde, on briefs), for appellant.\\nBarbara J. Gaden, Assistant Attorney General (Mary Sue Terry, Attorney General; Gail Starling Marshall, Deputy Attorney General; William H. Hauser, Senior Assistant Attorney General, on brief), for appellee.\", \"word_count\": \"6044\", \"char_count\": \"38046\", \"text\": \"JUSTICE WHITING\\ndelivered the opinion of the Court.\\nIn this case, we consider whether a trial court properly imposed a sanction upon a lawyer who brought an unsuccessful action and failed to conduct any pretrial investigation of allegedly adverse information. Specifically, we decide whether, and under what cir cumstances, the Code \\u00a7 8.01-271.1 duty of \\\"reasonable inquiry\\\" required the lawyer to investigate information opposing counsel gave him indicating that the lawyer's client might not prevail in the litigation.\\nOn July 8, 1988, Virginia Johnson, a licensing inspector for the Virginia Department of Social Services, accompanied by Barbara Ann Gestwick, the licensing administrator, and William Davidson, a zoning officer of the City of Richmond, sought permission from Ralph M. Montecalvo to inspect his residence in Richmond for possible violation of Code \\u00a7 63.1-182. Code \\u00a7 63.1-182 prohibits the operation of a home for the care of more than four aged, infirm or disabled adults without obtaining a license therefor from the Virginia Department of Social Services.\\nUpon advice of counsel, Montecalvo refused to permit an inspection. Whereupon, Johnson, Gestwick and Davidson went to a magistrate and got a search warrant. Although allegedly not requested to do so, the magistrate also issued an arrest warrant charging Montecalvo with the statutory violation of interfering with Johnson in the performance of her duties (the interference charge). The arrest warrant showed that the magistrate found probable cause for the interference charge \\\"based on the sworn statements of Virginia Johnson . . . Complainant.\\\"\\nJohnson appeared pursuant to subpoena and was the only prosecution witness who testified at the trial of the interference charge. Montecalvo was found not guilty.\\nShortly thereafter, Thomas H. Oxenham, III, Montecalvo's counsel in the criminal proceeding, filed this malicious prosecution action on behalf of Montecalvo against Johnson because of her alleged instigation of the interference charge. In a pretrial deposition, Montecalvo testified that he had never talked to Johnson, that he had not felt \\\"harassed\\\" by Johnson, and that he had no reason to believe she bore him any ill will. Prior to trial, opposing counsel advised Oxenham orally, in responsive pleadings, and in legal memoranda filed in the case, that Gestwick, not Johnson, had executed the affidavit for the search warrant, and that no one had requested the arrest warrant to be issued against Montecalvo for interfering with them in the performance of their duties. Nevertheless, Oxenham continued to press Montecalvo's claim by filing and signing two memoranda of law and his client's answers to Johnson's interrogatories.\\nAt trial, Montecalvo's evidence that linked Johnson to the institution of the interference charge consisted of the magistrate's notation on the warrant and Montecalvo's testimony that Johnson was the only prosecution witness who appeared at the interference charge trial. Johnson's evidence confirmed her counsel's pretrial information to Oxenham. After only 10 minutes' deliberation, a jury returned a verdict for Johnson and judgment was entered on the verdict.\\nInvoking Code \\u00a7 8.01-271.1, Johnson filed a \\\"Motion to Assess Attorneys' Fees and Costs\\\" against Oxenham and Montecalvo, alleging violations of a duty to make reasonable inquiry regarding Johnson's role in the issuance of the arrest warrant. As pertinent, Code \\u00a7 8.01-271.1 provides:\\nThe signature of an attorney . . . constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact . . ., and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . .\\nAn oral motion made by an attorney . in any court of the Commonwealth constitutes a representation by him that (i) to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact . . ., and (ii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.\\nIf a pleading, motion, or other paper is signed or made in violation of this rule, the court . . . shall impose upon the person who signed the paper or made the motion . an appropriate sanction .\\n(Emphasis added.)\\nOxenham's failure, after being told by opposing counsel that Johnson had nothing to do with the issuance of the arrest warrant, led the trial court \\\"to the inevitable conclusion that the purpose of filing the motion for judgment was not to prevail on the merits but to harass the defendant.\\\" The court also found that Oxenham failed in his duty to \\\"continually review and re-evaluate his position\\\" by failing to \\\"follow up with investigation or . . . conduct any discovery.\\\"\\nAccordingly, the court assessed a sanction against Oxenham in the sum of $4,500, representing a part of Johnson's counsel's projected billings of $10,383. Oxenham appeals.\\nFirst, we review some of the policy considerations in sanction cases. The possibility of a sanction can protect litigants from the mental anguish and expense of frivolous assertions of unfounded factual and legal claims and against the assertions of valid claims for improper purposes. And, sanctions can be used to protect courts against those who would abuse the judicial process. Yet the threat of a sanction should not be used to stifle counsel in advancing novel legal theories or asserting a client's rights in a doubtful case. Finally, courts should take care that the litigation of a sanction issue does not itself defeat one purpose of Code \\u00a7 8.01-271.1, that of reducing the volume of unnecessary litigation.\\nBecause of the harm that can be caused by an unjustified imposition of a sanction, Oxenham argues that the standard of review applicable in a sanction case in Virginia is \\\"somewhat deferential . . . [but] appears more closely akin to a de novo review\\\" than to an abuse-of-discretion standard. Oxenham notes that in Cooter & Gell v. Hartmarx Corp., 496 U.S. _,_, 110 S.Ct. 2447, 2461 (1990), the United States Supreme Court held that \\\"an appellate court should apply an abuse-of-discretion standard in reviewing all aspects of a district court's Rule 11 determination.\\\" Oxenham, however, contends that this Court has adopted a standard \\\"somewhat at odds\\\" with the federal standard, citing County of Prince William v. Rau, 239 Va. 616, 620, 391 S.E.2d 290, 293 (1990), and Tullidge v. Board of Sup. of Augusta County, 239 Va. 611, 614, 391 S.E.2d 288, 289 (1990). These cases do not support Oxenham's contention.\\nTullidge merely held that where the issue underlying the imposition of a sanction \\\"is one of law, and not fact, we do not accord the trial court's ruling the same weight it would be accorded if reached upon conflicting factual evidence.\\\" 239 Va. at 614, 391 S.E.2d at 289; see Rau, 239 Va. at 620, 391 S.E.2d at 293. This holding does not differ in substance from the statement in Cooter & Gell that \\\"[a trial] court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.\\\" 496 U.S. at _, 110 S.Ct. at 2461 (emphasis added). Thus, we apply an abuse-of-discretion standard in reviewing a trial court's award or denial of a sanction.\\nWe now turn to this case. To create a factual issue in his malicious prosecution action against Johnson, Montecalvo was required to present credible evidence: (1) that the prosecution was set on foot by Johnson and that it terminated in a manner not unfavorable to Montecalvo; (2) that it was instituted or procured by the cooperation of Johnson; (3) that it was without probable cause; and (4) that it was malicious. See Bain v. Phillips, 217 Va. 387, 393, 228 S.E.2d 576, 581 (1976). Legal malice, inferred from the circumstances, suffices for an award of compensatory damages, but actual malice must be shown to recover punitive damages. F.B.C. Stores, Inc. v. Duncan, 214 Va. 246, 252, 198 S.E.2d 595, 600 (1973).\\nJohnson contends that Montecalvo had no evidence that she instituted the prosecution or that her actions were malicious. According to Johnson, if Oxenham had complied with his duty of \\\"reasonable inquiry\\\" and interviewed her witnesses at any time before trial, he would have discovered that he could not have established that Johnson \\\"instituted or procured\\\" the prosecution or that she acted with malice. Therefore, Johnson argues, Oxenham's pleadings and oral motions violated Code \\u00a7 8.01-271.1 because they were frivolous and were filed for an improper purpose.\\nBecause no cross-error was assigned to the trial court's ruling that the initial filing was justified, we are concerned only with Oxenham's conduct after the action was filed. Although we agree with Oxenham's contention that Code \\u00a7 8.01-271.1 imposes no continuing duty upon a lawyer to \\\"update his pleadings in light of any new findings,\\\" see Pantry Queen Foods v. Lifschultz Fast Freight, 809 F.2d 451, 454 (7th Cir. 1987) (construing Federal Rule of Civil Procedure 11), we reject his contention that he had no further duty to investigate Johnson's role after filing the motion for judgment. The duty of \\\"reasonable inquiry\\\" arises each time a lawyer files a \\\"pleading, motion, or other paper\\\" or makes \\\"an oral motion.\\\" Code \\u00a7 8.01-271.1. If Oxenham had filed any paper or made any motion in the case after he knew, or reasonably should have known, that he could not create a factual issue of Johnson's involvement and malice, the court would have been justified in imposing a sanction against him. See, e.g., Schoenberger v. Oselka, 909 F.2d 1086, 1088 (7th Cir. 1990) (construing Federal Rule of Civil Procedure 11).\\nBecause different levels of malice are required in the recovery of compensatory and punitive damages for malicious prosecution, we consider first Montecalvo's claim for compensatory damages. Initially, the trial court found that the documentary and circumstantial evidence of Johnson's role in the institution of the criminal action against Montecalvo was sufficient to justify filing Montecalvo's malicious prosecution action. Apparently, the same evidence also justified submission of the case for jury consideration. Indeed, the jury may not have believed the three witnesses who, in contradiction to the language in the arrest warrant, denied Johnson's role in instituting the interference charge against Montecalvo. Juries are not required to accept testimony which is contradicted by credible documentary or circumstantial evidence. See Chaves v. Johnson, 230 Va. 112, 122-23, 335 S.E.2d 97, 104 (1985) (circumstantial and documentary evidence); Drake v. National Bank of Commerce, 168 Va. 230, 243-44, 190 S.E. 302, 308 (1937) (circumstantial evidence).\\nAdditionally, the appearance of Johnson's name as the complainant on the arrest warrant sufficed to support an inference that she acted with legal malice in instigating the interference charge against Montecalvo. Whoever caused the arrest warrant to issue had no probable cause to claim an unlawful interference with Johnson's performance of her duties because Montecalvo had a constitutional right to require a search warrant before such an inspection. This lack of probable cause was sufficient to support an inference of Johnson's legal malice. Giant of Virginia, Inc. v. Pigg, 207 Va. 679, 685, 152 S.E.2d 271, 276 (1967). Accordingly, the trial court's conclusion that this claim was frivolous was erroneous and an abuse of discretion.\\nNext, we consider whether the evidence supports the trial court's finding that Oxenham's failure to investigate Montecalvo's claim for compensatory damages demonstrated an intent \\\"not to prevail on the merits but to harass [Johnson].\\\" Although a number of adverse inferences might be drawn from Oxenham's failure to make any investigation after filing the motion for judgment, an intent to harass is not one of them. The record contains no evidence of threats or expressions of ill will on Oxenham's part, no pattern of persistent and harassing pleadings, and nothing to show that Oxenham was not attempting to recover damages for his client. Under these circumstances, we conclude that the trial court's inference of an intent to harass from a failure to investigate was based on a clearly erroneous assessment of the evidence and, therefore, was an abuse of discretion.\\nFor these reasons, we hold that the trial court erred in basing its award, in whole or in part, upon Oxenham's continued assertion of Montecalvo's claim for compensatory damages.\\nWe now consider whether the sanction might have been justified because of Oxenham's continued assertion of the punitive damage claim. Johnson's legal malice in instigating the arrest warrant would not have authorized an award of punitive damages. In malicious prosecution actions, evidence of \\\"misconduct or actual malice, or such recklessness or negligence as to evince a conscious disregard of the rights of others\\\" is required. Giant of Virginia, 207 Va. at 685, 152 S.E.2d at 277.\\nMontecalvo's pretrial discovery testimony established conclusively that Johnson was not guilty of misconduct or actual malice. Furthermore, if Oxenham had made \\\"reasonable inquiry,\\\" he would have known, or reasonably should have known, that he had no evidence that Johnson had acted in reckless and wanton disregard of Montecalvo's rights. Therefore, Oxenham should not have asserted Montecalvo's frivolous claim for punitive damages at trial.\\nHowever, the trial court did not distinguish between the two damage claims in its award of an attorneys' fee sanction. Attorneys' fee sanctions have been imposed under Federal Rule 11 for asserting a frivolous claim with nonfrivolous ones, where the defense of the frivolous claim was essentially unrelated to the defenses of the nonfrivolous claims. Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir. 1988) (suing a party who had no conceivable liability in a separate count of a multiple count complaint); Frantz v. U.S. Powerlifting Fed'n, 836 F.2d 1063, 1067 (7th Cir. 1987) (assertion of baseless legal theory in multiple count antitrust complaint containing other counts with colorable legal theories).\\nHere, however, any award of damages, compensatory and punitive, would have turned largely upon what inferences a jury might draw from Johnson's actions in instigating the arrest warrant. Indeed, Johnson's liability for punitive damages depended upon an award of compensatory damages, Valley Acceptance Corp. v. Glasby, 230 Va. 422, 432, 337 S.E.2d 291, 297 (1985), and any such award would have had to bear a reasonable relation to the award of compensatory damages. Philip Morris Inc. v. Emerson, 235 Va. 380, 414, 368 S.E.2d 268, 287 (1988).\\nHere, the elements of Montecalvo's claim for compensatory damages are subsumed in his claim for punitive damages. Additionally, the sanction requested and imposed was an award of attorneys' fees. Therefore, Johnson's attorneys' time spent in defending the punitive damage claim should have been segregated and the sanction based only on the time taken in defending that claim. Although the trial court did not award the full amount of the attorneys' fees claimed, it based its award upon a projection of the time Johnson's attorneys spent in defending the entire case. In doing so, it based its conclusion upon an erroneous application of the law and thereby abused its discretion.\\nWe further are of opinion that any effort to segregate the additional expense and anguish occasioned by Oxenham's continued assertion of a frivolous claim for punitive damages would impose additional and unnecessary burdens upon Johnson and the trial court. Under these circumstances, we will reverse the trial court's sanction' of the payment of attorneys' fees and enter final judgment for Oxenham on that issue.\\nReversed and final judgment.\\nThe inspection confirmed that Montecalvo was operating an adult home without a license, and he later pleaded guilty to a violation of Code \\u00a7 63.1-182.\\nCode \\u00a7 63.1-182 provides in part that \\\"[a]ny person who interferes with any authorized agent of the Commissioner [of Social Services] in the discharge of his duties . . . shall be guilty of a misdemeanor.\\\"\\nConcluding that there was no evidence that Montecalvo had participated in \\\"the frivolous filing and prosecution of this suit,\\\" the trial court denied the motion for a sanction against him.\\nRule 11 of the Federal Rules of Civil Procedure and Code \\u00a7 8.01-271.1 are similar in the respects material here.\\nCiting Brown v. Koulizakis, 229 Va. 524, 331 S.E.2d 440 (1985), the trial court said that \\\"[t]he only reason the case survived the motion to strike was the court's policy against striking the evidence in order to preserve a full record on appeal . . . .\\\" However, in conformity with Brown, the court must have concluded that the evidence did not make it \\\"conclusively apparent that plaintiff ha[d] proven no cause of action against defendant.\\\" Id. at 531, 331 S.E.2d at 445 (citation omitted).\"}"

va/2113942.json

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+"{\"id\": \"2113942\", \"name\": \"Jack W. Edwards v. Elizabeth Ann Edwards\", \"name_abbreviation\": \"Edwards v. Edwards\", \"decision_date\": \"1971-01-18\", \"docket_number\": \"Record No. 7262\", \"first_page\": \"483\", \"last_page\": \"483\", \"citations\": \"211 Va. 483\", \"volume\": \"211\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T18:06:02.329467+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jack W. Edwards v. Elizabeth Ann Edwards.\", \"head_matter\": \"Richmond\\nJack W. Edwards v. Elizabeth Ann Edwards.\\nJanuary 18, 1971.\\nRecord No. 7262.\\nPresent, Snead, C.J., I\\u2019Anson, Gordon, Harrison, Cochran and Harman, JJ.\\nLowry J. Miller (James B. Miller and Gary W. Reese, on brief), for appellant.\\nKen McFarlane Smith (James W. Korman; Kinney, Smith \\u25a0& Bar-ham, on brief), for appellee.\", \"word_count\": \"59\", \"char_count\": \"384\", \"text\": \"Decree affirmed without opinion by equally divided Court.\"}"

va/2138794.json

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+"{\"id\": \"2138794\", \"name\": \"Linwood Earl Briley v. Commonwealth of Virginia\", \"name_abbreviation\": \"Briley v. Commonwealth\", \"decision_date\": \"1980-11-26\", \"docket_number\": \"Record No. 800690\", \"first_page\": \"532\", \"last_page\": \"546\", \"citations\": \"221 Va. 532\", \"volume\": \"221\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T02:00:45.235252+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Linwood Earl Briley v. Commonwealth of Virginia\", \"head_matter\": \"Richmond.\\nLinwood Earl Briley v. Commonwealth of Virginia\\nNovember 26, 1980.\\nRecord No. 800690.\\nPresent: All the Justices.\\nFrank N. Cowan (Deborah S. O\\u2019Toole; Cowan, Owen & Nance, on brief), for appellant.\\nJames E. Kulp, Deputy Attorney General (Marshall Coleman, Attorney General, on brief), for appellee.\", \"word_count\": \"4741\", \"char_count\": \"29181\", \"text\": \"CARRICO, J.,\\ndelivered the opinion of the Court.\\nIn a two-stage jury trial conducted in accordance with Code \\u00a7 19.2-264.3 and -264.4, the defendant, Linwood Earl Briley, was convicted of capital murder for a willful, deliberate, and premeditated killing occurring in the commission of robbery while armed with a deadly weapon, Code \\u00a7 18.2-31(d), and his punishment was fixed at death. After receipt of a post-sentence report of a probation officer, Code \\u00a7 19.2-264.5, the trial court imposed upon the defendant the sentence fixed by the jury. Pursuant to Code \\u00a7 17-110.1(A) and -110.1(F), the defendant is here for automatic review of his death sentence, consolidated with his appeal from his conviction.\\nThe victim in the case, John Harvey Gallaher, was a disc jockey for a Richmond radio station and a member of a small \\\"musical combo.\\\" On the evening of September 14, 1979, Gallaher was playing with the \\\"combo\\\" at the Log Cabin, a southside Richmond restaurant. During an intermission, Gallaher left the restaurant by a rear door. He never returned. Two days later, his bullet-torn body was found, half-submerged, at the foot of a bank on Mayo Island in the James River.\\nOn October 22, 1979, Duncan Meekins was arrested and charged in connection with the robbery and murder of Gallaher. Subsequently, Meekins implicated the defendant in the offenses.\\nMeekins was the Commonwealth's principal witness at the defendant's trial. In his testimony, Meekins stated that, on the evening in question, he was with the defendant and the latter's two brothers, Anthony and James, when the foursome decided to look for \\\"somebody to mug.\\\" The group had a sawed-off shotgun and a high-caliber rifle in their car as they drove up and down Jefferson-Davis Highway in southside Richmond looking for a likely victim. Unsuccessful in their quest, they parked near the Log Cabin \\\"to see if [a possible victim] was going to come out.\\\" Exiting their car, they hid behind some bushes at the rear of the Log Cabin, with the defendant carrying the rifle and Meekins the shotgun.\\nAccording to Meekins' further testimony, Gallaher came out the rear door of the Log Cabin and walked over to the bushes where the waiting gunmen were hiding. The defendant accosted Gallaher, ordered him to lie face-down on the ground, and removed his wallet and keys. At the defendant's direction, Meekins went to look for Gallaher's automobile. When Meekins returned with the car, a Lincoln Continental, he and the defendant forced Gallaher to lie on the rear floorboard. With Meekins in the back seat guarding Gallaher, the defendant drove the car away. Anthony and James drove off in the automobile in which they had arrived at the Log Cabin; sometime later, Anthony and James parked their car and joined the defendant and Meekins in Gallaber's automobile.\\nContinuing with his testimony, Meekins stated that the defendant drove to Mayo Island in the James River and parked on the grounds of a paper company located there. The defendant and Meekins forced Gallaher from the car. When Gallaher \\\"started struggling like to stand up,\\\" the defendant \\\"came up with the rifle and shot him.\\\"\\nConcluding his testimony, Meekins said that 15 to 20 minutes elapsed from the time Gallaher was seized at the Log Cabin until he was shot on Mayo Island. After the shooting, the assailants left the murder scene and drove around the city in Gallaher's car. When the \\\"tank . . . almost . . . was on empty,\\\" the culprits parked the car and stripped it of parts.\\nTestifying in his own behalf as his only witness, the defendant denied all complicity in the robbery and murder of Gallaher. The defendant stated that, on the evening in question, he gave Meekins a ride to the home of Meekins' uncle in southside Richmond. After Meekins left the vehicle, the defendant proceeded toward a fried chicken restaurant to see a girl who worked there; en route, his car broke down, and he tried unsuccessfully to restart it. Sometime later, Meekins drove up in a Lincoln automobile and gave the defendant a ride home. The defendant admitted that he and Meekins stripped the Lincoln of parts.\\nOther testimony below showed that the defendant's fingerprints were found in Gallaher's car. When arrested, the defendant was wearing Gallaher's ring; Gallaher's watch was found in the defendant's home. The defendant told the arresting officer that he bought the ring and watch from a person known as \\\"A.C.\\\" In his testimony, however, the defendant stated he purchased the items from Meekins.\\nIn a pretrial motion, the defendant sought dismissal of his capital murder indictment on the ground that Virginia's death penalty statutes are unconstitutional. The trial court denied the motion. On appeal, the defendant states that he is familiar with the constitutional arguments advanced against the death penalty statutes in earlier cases before this court, and he recognizes that the rulings in those cases are adverse to his position. The defendant says, therefore, that, while he wishes to preserve the points, he need not repeat the arguments. Further, the defendant raises purportedly novel arguments against the validity of the death penalty statutes. These arguments, however, are mere variations of the themes previously argued and ruled meritless. We need not repeat the rulings; we reaffirm them and, accordingly, reject all the defendant's arguments concerning the validity of the death penalty statutes.\\nIn another pretrial motion, the defendant sought a change of venue based upon a claim of prejudicial publicity. The trial court denied the motion. On the morning of trial, the defendant renewed the motion; the court again denied the request.\\nIn support of his change-of-venue motion, the defendant submitted affidavits from members of the community, scripts of broadcasts by local television stations, and a notebook containing approximately 70 articles from local newspapers. These materials showed that, in the months preceding the defendant's trial for the present offenses, he and his brothers had been tried in the Richmond area on numerous charges of rape, robbery, and murder, all of which had been given extensive media coverage. In the opinion of the affiants in the several affidavits, the defendant could not \\\"receive a fair trial by an unbiased and impartial jury in the City of Richmond.\\\"\\nAlthough acknowledging that the question whether to change venue generally is left to the sound discretion of the trial court, the defendant contends that the \\\"unusual circumstances of this case and the resulting extensive media coverage\\\" concerning his present and earlier crimes required the granting of his motion to change venue. Citing a number of our prior decisions involving change-of-venue questions, the defendant argues that, in resolving the issue in this case, we should consider (1) the time elapsed between the commission of the crimes charged and trial, (2) the community interest in the case, and (3) the difficulty encountered in selecting a fair and impartial jury.\\nThe defendant says that the publicity concerning his current and earlier crimes continued \\\"right up to the time\\\" of trial of the present charges. He states further that community interest in the case was aroused by the publicity to the extent that his name became \\\"almost synonymous with 'brutal killings.' \\\" Finally, he asserts that the selection of a jury in his case proved difficult, the process consuming over ten hours and requiring examination of 55 prospective jurors.\\nThere are fatal weaknesses, however, in the defendant's position. He does not claim that any of the publicity about which he complains was either inaccurate or intemperate. Greenfield v. Commonwealth, 214 Va. 710, 717, 204 S.E.2d 414, 419 (1974). Neither has he demonstrated \\\"such a widespread feeling of prejudice on the part of the citizenry as [would have been] reasonably certain to prevent a fair and impartial trial.\\\" Coppola v. Commonwealth, supra note 2, 220 Va. at 248, 257 S.E.2d at 801. Nor has he directed us to specific portions of the record \\\"which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected.\\\" Dobbert v. Florida, 432 U.S. 282, 303 (1977).\\nIn this latter connection, the defendant cites the voir dire examination of two prospective jurors, Barbara Smith and William Slaughter. The defendant argues that these prospective jurors should have been excluded for cause since widespread media coverage had influenced them to the extent that they had formed opinions concerning his guilt and, therefore, they could not stand indifferent in the case.\\nThe record shows clearly, however, that while these two prospective jurors had read accounts or listened to broadcasts concerning the criminal activities of the defendant, neither venireman had formed an opinion concerning the defendant's guilt. Furthermore, both prospective jurors stated unequivocally that they would determine the case solely upon the evidence presented in court. Their exposure to media coverage, therefore, did not disqualify them from service on the defendant's jury. Irvin v. Dowd, 366 U.S. 717, 723 (1961).\\nThe defendant's complaint concerning pretrial publicity is no more than a claim that the sheer volume of the media coverage of his and his brothers' many crimes required a change in the location of his trial. Such a claim, standing alone, does not suffice to require a change of venue. Dobbert v. Florida, supra, 432 U.S. at 303; Smith v. Commonwealth, supra note 2, 219 Va. at 462, 248 S.E.2d at 140.\\nThe defendant's next contention involves an incident occurring during the guilt stage of his trial. When chief prosecution witness Duncan Meekins was under cross-examination, defense counsel began to question him concerning a plea agreement he had made with the Commonwealth. Meekins stated that, in return for his truthful testimony, the Commonwealth had promised he would \\\"get no more time than anybody else in this case.\\\" Asked whether this was \\\"the extent of the agreement,\\\" Meekins replied, \\\"[f]or this case, yeah.\\\" At this point, the prosecutor asked the court to confer with counsel out of the hearing of the jury.\\nIn the conference, it was revealed that the plea agreement encompassed not only the present case but also a number of other cases in which Meekins was charged along with the defendant and his brothers. In one of these prosecutions, Meekins himself was subject to the death penalty. The plea agreement provided that, in return for Meekins' testimony against the Brileys in each case involving them, the Commonwealth would not seek the death penalty against Meekins and he would not receive any sentence greater than was imposed upon his accomplices in the various cases.\\nDefense counsel proposed to inquire fully into the plea agreement and the other crimes with which Meekins was charged. Defense counsel desired to show the \\\"pressure brought to bear\\\" upon Meekins and to demonstrate that he was testifying against the defendant in return for the Commonwealth's promise that \\\"he [would] not get the chair.\\\"\\nThe trial court ruled that, if defense counsel examined Meekins concerning the other crimes, the Commonwealth would be permitted to question the witness with respect to the defendant's participation in the same offenses. Defense counsel elected not to pursue the matter further.\\nThe defendant argues that \\\"there was no basis upon which the trial court [could] have made [its] ruling\\\"; the defendant's involvement in the other crimes was irrelevant to Meekins' motivation for testifying on behalf of the Commonwealth. In imposing a condition upon further cross-examination, the defendant maintains, the trial court denied his constitutional right to confront his accusers and limited his ability to demonstrate a basis for bias or prejudice on Meekins' part.\\nThe defendant relies upon our decisions in Woody v. Commonwealth, 214 Va. 296, 199 S.E.2d 529 (1973), and Deavers v. Commonwealth, 220 Va. 14, 255 S.E.2d 458 (1979), as support for his argument. Both cases, however, are inapposite. In Woody, we reversed the trial court's refusal to permit the accused to cross-examine accomplices concerning their participation in other crimes, not involving the accused. We said the cross-examination was proper to show the witnesses were testifying falsely in the hope of obtaining leniency in the other cases. In Deavers, we held that the trial court had erred in denying the accused permission to cross-examine an accomplice concerning whether the latter had been offered leniency in exchange for his testimony.\\nIn both Woody and Deavers, the denial of the right of cross-examination was absolute with respect to the particular point involved. Here, there was no denial of any right. The defendant had shown the jury that Meekins was testifying pursuant to a plea agreement and had brought out what the agreement provided concerning the present case. The trial court merely warned defense counsel of the consequences that would flow from inquiry into the other crimes with which Meekins was charged.\\nWe do not believe the trial court erred in its ruling. The situation here is identical with that addressed in United States v. Barrentine, 591 F.2d 1069 (5th Cir.), cert. denied, 444 U.S. 990 (1979). There, in a gambling prosecution, the government's star witness, an accomplice of the appellants, was cross-examined concerning his prior arrests on other charges. On redirect examination, the prosecution was permitted to show by the witness that one of his prior arrests involved an incident where he had picked up marijuana at the request of one of the appellants. As in the present case, the trial judge in Barrentine had warned defense counsel that questioning the witness concerning other crimes would open the door to redirect testimony of the appellants' involvement in those crimes. The Fifth Circuit affirmed, stating:\\nCross-examination on a part of a transaction enables the opposing party to elicit evidence on redirect examination of the whole transaction at least to the extent that it relates to the same subject.\\n591 F.2d at 1081. We adopt the quoted language as applicable here and dispositive of the question under discussion.\\nThis brings us to the defendant's major contention. Here, the defendant argues that the trial court erred in refusing a defense instruction which would have permitted the jury to find that the robbery of Gallaher terminated at the Log Cabin restaurant and, therefore, that the defendant was guilty only of the non-capital offense of first degree murder in the subsequent killing of Gallaher. As a corollary, the defendant argues that the court erred further in refusing to permit defense counsel to argue the first-degree-murder theory before the jury.\\nAt this point, it is important to clarify what the trial court ruled and what it did not rule. Contrary to the indication in the defendant's brief, the court did not rule as a matter of law that the killing of Gallaher occurred in the commission of robbery. Out of the hearing of the jury, the court did rule that, if the jury believed the defendant robbed Gallaher at the Log Cabin, then, as a matter of law, the robbery continued until Gallaher's subsequent death on Mayo Island. The record does not reveal, however, that this ruling was ever com municated to the jury. Further, contrary to what the defendant suggests, the lower court did not prohibit counsel from arguing to the jury that the killing did not occur in the commission of robbery.\\nThe record shows the trial court granted Instruction 6, which told the jury that the burden was upon the Commonwealth to prove, inter alia, the killing of Gallaher occurred during the commission of robbery and that, in the failure of this burden of proof, the jury should find the defendant not guilty of capital murder. The court also granted Instruction 10A, which defined the offense of robbery. And, in the discussion between court and counsel concerning instructions, the trial judge made clear defense counsel could argue to the jury that the Commonwealth had failed to prove \\\"the elements of the crime\\\" of capital murder, including the element \\\"that the killing occurred during the comission of robbery.\\\" The court only prohibited defense counsel from arguing that the robbery, if it occurred, terminated with the conclusion of the events at the Log Cabin restaurant.\\nWith this clarification, it is obvious that the trial court took the position that the jury should be permitted only two options, viz., to find the defendant guilty of capital murder or to acquit him. Relying upon Beck v. Alabama, 447 U.S. 625 (1980), the defendant argues that the jury should have been given a third alternative, viz., to convict him of the lesser included offense of first degree murder on the theory that the robbery of Gallaher had terminated well in advance of the murder.\\nIn Beck, a capital case involving robbery and murder of the victim by the accused and an accomplice, the trial court refused the defense a first-degree-murder instruction. Noting that the accused had admitted participation in the robbery but had denied killing the victim or intending his death, the Supreme Court reversed, stating that the defense was entitled to the instruction.\\nBeck, however, is inapposite. Unlike the accused there, this defendant denies all complicity in both the robbery and the killing of the victim. Furthermore, in Beck, an Alabama statute forbade the granting of lesser-included-offense instructions in capital cases. Virginia has no similar statute or other rule of law requiring the same result. In this state, such instructions are proper, but only when supported by evidence. Clark v. Commonwealth, supra note 2, 220 Va. at 209, 257 S.E.2d at 789; Painter v. Commonwealth, 210 Va. 360, 367, 171 S.E.2d 166, 171 (1969). Beck did not affect this rule. Indeed, the holding in Beck was responsive to this question:\\n\\\"May a sentence- of death constitutionally be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict?\\\" (Emphasis added.)\\n447 U.S. at 627. The question becomes, therefore, whether there was any basis in the present case for permitting the jury to consider a verdict of guilt of a lesser-included non-capital offense.\\nIn this connection, both the defendant and the Attorney General cite our decision in Haskell, et al. v. Commonwealth, 218 Va. 1033, 243 S.E.2d 477 (1978). There, the three appellants and a fourth assailant named Gaynor attacked a sailor pursuant to a predesigned plan to rob him. When the robbers found no money on the victim, they tried to get into their car and drive away. The victim attempted to prevent their escape, and Gaynor shot and killed him. Convicted of attempted robbery and murder, the appellants contended on appeal that the evidence did not sustain their convictions under the felony-murder doctrine because the attempted robbery had been abandoned before the victim was shot. Rejecting this contention after an examination of numerous authorities, we said that, under the prevailing rule:\\n[T]he felony-murder statute applies where the initial felony and the homicide were parts of one continuous transaction, and were closely related in point of time, place, and causal connection, as where the killing was done in flight from the scene of the crime to prevent detection or promote escape.\\n218 Va. at 1041, 243 S.E.2d at 482.\\nWe stated further:\\nThe rule which we adopt, therefore, consistent with the weight of authority elsewhere, is that the felony-murder statute applies where the killing is so closely related to the felony in time, place, and causal connection as to make it a part of the same criminal enterprise.\\n218 Va. at 1043-44, 243 S.E.2d at 483.\\nThe defendant here relies upon the portion of the Haskell opinion wherein we observed that \\\"[i]t was for the fact finder to determine . . whether the attempted robbery had been terminated within the purview of the [felony-murder] statute.\\\" 218 Va. at 1043, 243 S.E.2d at 483. But, in Haskell, the finding concerning the termination of the attempted robbery actually had been made by the trier-of-fact; we were not called upon to decide whether the determination properly might have been made as a matter of law. As the Attorney General points out, Haskell does not require that the trier-of-fact always determine whether an initial felony has terminated in advance of a homicide. Indeed, the Haskell opinion indicates clearly that, in an appropriate case, the issue properly may be decided as a matter of law. 218 Va. at 1044, 243 S.E.2d at 484.\\nThe defendant maintains, however, that, in refusing to permit the jury in this case to determine whether the robbery of Gallaher terminated before the killing, the trial court improperly applied a liberal interpretation of the felony-murder doctrine. A capital murder case differs from the typical felony-murder situation, the defendant asserts, and the decisions of the United States Supreme Court require a more restrictive interpretation of applicable principles in death penalty cases.\\n. Even giving applicable principles strict interpretation, we believe the trial court did not err in refusing a first-degree-murder instruction and in ruling that, if a robbery occurred in this case, it did not terminate with the conclusion of the events at the Log Cabin restaurant. Uncontradicted evidence supported the trial court's holding concerning the continuation of the robbery; no evidence supported granting the instruction.\\nThe distinctive elements of robbery are (1) the use of violence, or the threat thereof, against the victim, and (2) the theft of property from his person or in his presence. Theft of property is a trespass upon the rights of the owner therein for as long as he is deprived of the use thereof; he retains legal possession of the goods stolen even when they are in the actual possession of the thief. Dunlavey v. Commonwealth, 184 Va. 521, 525-26, 35 S.E.2d 763, 765 (1945). In a robbery prosecution, where the violence against the victim and the trespass to his property combine in a continuing, unbroken sequence of events, the robbery itself continues as well for the same period of time.\\nHere, obviously, the jury believed a robbery occurred. It is equally obvious that Gallaher's automobile was a fruit of the robbery. Uncontradicted testimony submitted by the Commonwealth showed conclusively that the violence against Gallaher and the trespass to his automobile combined and continued unabated from the time of the initial taking of the car at the Log Cabin until Gallaher was killed on Mayo Island only 15 to 20 minutes later. Thus, borrowing and adapting the language of Haskell, we hold that the killing involved here was so closely related in time, place, and causal connection as to make the killing, as a matter of law, a part of the same criminal enterprise. Cf. Doane v. Commonwealth, 218 Va. 500, 237 S.E.2d 797 (1977) (where no causal relationship or nexus shown between antecedent felony and killing, accused not guilty of felony-murder) .\\nOne defense argument remains in this phase of the case. The defendant maintains that he cannot be convicted of capital murder for a robbery involving the theft of Gallaher's car because there was no evidence that the defendant or his accomplices \\\"intended to take [the car] permanently.\\\" We reject this argument out of hand. We can conceive of no more conclusive evidence of the intent to deprive an owner of his car permanently than the testimony presented in this case that the car was stolen contemporaneously with the murder of its owner and later abandoned and stripped of parts.\\nThe defendant's next contention concerns the trial court's refusal, in the penalty stage of the trial, to grant defense Instruction A2. This instruction would have told the jury:\\nThe Court instructs the jury that even though you may believe that the Commonwealth has proven, beyond a reasonable doubt, the elements necessary for you to recommend that Linwood E. Briley be put to death, you are not required by law to recommend the death penalty and you may fix Linwood Earl Briley's punishment at imprisonment for life.\\nThe defendant argues this instruction was necessary to inform the jury clearly that it was not bound to recommend the death sentence in any event. In Instruction 1A, however, the trial court told the jury:\\nYou have convicted the defendant of an offense which may be punished by death. You must decide whether the defendant shall be sentenced to death or to life imprisonment. Before the penalty can be fixed at death, the Commonwealth must prove beyond a reasonable doubt at least one of the following two alternatives:\\n(1) That, after consideration of his past criminal record, there is a probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society;\\nor\\n(2) That his conduct in committing the offense was outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or aggravated battery to the victim beyond the minimum necessary to accomplish the act of murder.\\nIf you find from the evidence that the Commonwealth has proven beyond a reasonable doubt either of the two alternatives, then you may fix the punishment of the defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment.\\nIf the Commonwealth has failed to prove either alternative beyond a reasonable doubt, then you shall fix the punishment of the defendant at life imprisonment. (Emphasis added.)\\nIn our opinion, this last-quoted instruction clearly and sufficiently informed the jury of its option to fix the defendant's punishment at life imprisonment, even though it also found the existence of the aggravating circumstances permitting a recommendation of the death penalty. Defense Instruction A2, therefore, was unnecessary. Smith v. Commonwealth, supra note 2, 219 Va. at 479-80, 248 S.E.2d at 149-50.\\nIn his final assignment of error,' the defendant contends that his sentence of death was imposed under the influence of passion, prejudice, or other arbitrary factor and that the sentence is excessive or disproportionate to the penalty imposed in similar cases. Our examination of this record, however, convinces us that the defendant's sentence was not influenced by passion, prejudice, or other arbitrary factor. With respect to excessiveness or disproportionality, we have examined the records in two other death penalty cases decided today and in cases decided previously in which death sentences were upheld. From this examination, we conclude that the defendant's sentence is not excessive or disproportionate.\\nFinding neither error in the judgment appealed from nor other reason to disturb the death sentence imposed in this case, we will affirm the defendant's conviction and sentence.\\nAffirmed.\\nThe defendant was convicted also of using a firearm in the commission of murder. This conviction, however, is not involved in, or pertinent to, this appeal.\\nThe defendant cites: Stamper v. Commonwealth, 220 Va. 260, 257 S.E.2d 808 (1979), cert. denied, 445 U.S. 972 (1980): Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d 797 (1979), cert. denied, 444 U.S. 1103 (1980); Clark v. Commonwealth, 220 Va. 201, 257 S.E.2d 784 (1979), cert. denied, 444 U.S. 1049 (1980); Mason v. Commonwealth, 219 Va. 1091, 254 S.E.2d 116, cert. denied, 444 U.S. 919 (1979); Waye v. Commonwealth, 219 Va. 683, 251 S.E.2d 202, cert. denied, 442 U.S. 924 (1979); and Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967 (1979).\\nThe defendant cites: Newcomer v. Commonwealth, 220 Va. 64, 255 S.E.2d 485 (1979); Poindexter v. Commonwealth, 218 Va. 314, 237 S.E.2d 139 (1977); Lewis v. Commonwealth, 218 Va. 31, 235 S.E.2d 320 (1977); Foster v. Commonwealth, 209 Va. 297, 163 S.E.2d 565 (1968); and Rees v. Commonwealth, 203 Va. 850, 127 S.E.2d 406 (1962), cert. denied, 372 U.S. 964 (1963).\\nBarbara Smith actually served on the defendant's jury. William Slaughter was excluded by the exercise of a peremptory challenge by the defense.\\nThe defendant cites: Godfrey v. Georgia, 446 U.S. 420 (1980), Jurek v. Texas, 428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Gregg v. Georgia, 428 U.S. 153 (1976); and Furman v. Georgia, 408 U.S. 238 (1972).\\nJames Dyral Briley v. Commonwealth, 221 Va. 563, 273 S.E.2d 57 (1980); Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36 (1980).\\nThe cases decided previously are listed at the end of the opinion in James Dyral Briley v. Commonwealth, supra note 6.\"}"

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+"{\"id\": \"2138844\", \"name\": \"Jesse Bloodworth v. Robert I. Ellis, et al.\", \"name_abbreviation\": \"Bloodworth v. Ellis\", \"decision_date\": \"1980-06-06\", \"docket_number\": \"Record No. 780893\", \"first_page\": \"18\", \"last_page\": \"24\", \"citations\": \"221 Va. 18\", \"volume\": \"221\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"\", \"parties\": \"Jesse Bloodworth v. Robert I. Ellis, et al.\", \"head_matter\": \"Richmond.\\nJesse Bloodworth v. Robert I. Ellis, et al.\\nJune 6, 1980.\\nRecord No. 780893.\\nPresent: All the Justices.\\nH. Lewis Allen (Howard James Marx; Fine, Fine, Legum & Fine, on briefs), for appellant.\\nStuart L. Nachman (Christopher C. North; Cooper & Cooper, on brief), for appellees.\", \"word_count\": \"1851\", \"char_count\": \"11502\", \"text\": \"I'ANSON, C.J.,\\ndelivered the opinion of the Court.\\nIn this appeal, we must determine whether the trial court erred in failing to receive evidence concerning a challenge to the jurisdiction of a sister state's court prior to giving that court's judgment full faith and credit pursuant to the Constitution of the United States, article IV, section 1.\\nIn November 1976, the plaintiffs, on behalf of themselves and all other stockholders of Atlantic General Corporation, obtained a judgment against several defendants, including Jesse Bloodworth, in the Court of Common Pleas of Philadelphia County, Pennsylvania. During the course of the proceedings, the Court of Common Pleas entered an order dated September 12, 1975, in which the clerk of the court was directed to note that service of the complaint and amended complaint had been accepted by the defendants, including Bloodworth. The order recited that Bloodworth and the defendants appeared in court on August 27, 1975, and acknowledged the acceptance of the complaint and amended complaint through their attorney. In addition, a certified copy of several pages of the transcript of the Pennsylvania proceeding was submitted to the Virginia trial court. The transcript revealed that the attorney representing the several defendants agreed to a stipulation waiving objections to jurisdiction and asking that the subject matter of the suit be adjudicated. In addition, the transcript revealed that Bloodworth was called as a witness and testified at the August 27 hearing. The attorney for the plaintiffs in the Pennsylvania proceeding filed in the court below an affidavit stating that, inter alia, Bloodworth was \\\"present in Court during the several days of trial of this case and [was] represented by counsel throughout the proceedings.\\\"\\nBloodworth admits that he appeared in the Court of Common Pleas on August 27, 1975, but claims that he participated in the proceedings solely as a witness. In an affidavit submitted to the Virginia trial court, he avers that he did not engage the attorney who stipulated to a waiver of jurisdictional objections, that he did not authorize this attorney to accept service of the complaint or the amended complaint, and that, to his knowledge, during the proceeding the attorney took no action suggesting that he considered himself to be Bloodworth's attorney.\\nOn the basis of the affidavits and pleadings submitted, the Virginia trial court granted the plaintiffs' motion for summary judgment and held that the Pennsylvania court order was entitled to full faith and credit. In his appeal, Bloodworth contends that summary judgment was improper in that there were \\\"material fact[s]. . . genuinely in dispute.\\\" Supreme Court of Virginia Rule 3:18. The plaintiffs, on the other hand, contend that no material facts were at issue and that consequently summary judgment was appropriate.\\nThe Full Faith and Credit Clause of the Constitution of the United States requires that \\\"[a] judgment entered in one State must be respected in another provided that the first State had jurisdiction over the parties and the subject matter.\\\" Nevada v. Hall, 440 U.S. 410, 421 (1979). The threshold issue to be resolved in this case is whether the Pennsylvania court's recitation of jurisdiction in its court order and other court records precluded the Virginia trial court from further inquiry into the Pennsylvania court's jurisdiction. As a general rule, a court, when asked to give effect to the judgment of a court in another state, may inquire into that court's jurisdiction without offending the Full Faith and Credit Clause, \\\"notwithstanding the averments contained in the record of the judgment itself.\\\" Thompson v. Whitman, 85 U.S. (18 Wall.) 457, 469 (1873). Accord, Williams v. North Carolina, 325 U.S. 226, 229 (1945); Chicago Life Insurance Co. v. Cherry, 244 U.S. 25, 29 (1917); Bigelow v. Old Dominion Copper Co., 225 U.S. 111, 135-36 (1912); Bowler v. Huston, 11 Va. (30 Gratt.) 266, 275 (1878). Where, however, the second court's inquiry \\\"discloses that those [jurisdictional] questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment,\\\" the second court is precluded from re-examining the jurisdiction of the court rendering the original judgment. Durfee v. Duke, 375 U.S. 106, 111 (1963). Thus, a litigant is barred from relitigating in Virginia issues that were properly before and decided by a sister state's court, even when the issues concern jurisdictional matters. See also Romeo v. Romeo, 218 Va. 290, 293, 237 S.E.2d 143, 145 (1977); Osborne v. Osborne, 215 Va. 205, 208, 207 S.E.2d 875, 879 (1974); Evans v. Asphalt Roads, Etc., Co., 194 Va. 165, 173, 72 S.E.2d 321, 325 (1952).\\nIn the present case, the Pennsylvania court's recitation of jurisdiction rested upon a stipulation of the parties, rather than a litigation of the jurisdictional issues. This stipulation, if duly authorized, would preclude further review of jurisdiction in this case. Blood-worth's affidavit represents, however, that the attorney making the stipulation had not been authorized by him to waive such objections and, in fact, had not even been retained by him. Furthermore, the affidavit represents that Bloodworth was unaware of any actions taken by the attorney which suggested that the attorney believed he was Bloodworth's counsel. If these statements are correct, the stipulation recited in the court order as the basis for the Pennsylvania court's jurisdiction was unauthorized. Cf. Durfee v. Duke, 375 U.S. at 111 n.8 (first court's jurisdiction of the person acknowledged). A jurisdictional waiver made by an attorney unauthorized to make such a waiver does not confer jurisdiction upon a court. See, e.g., People v. Mickow, 58 Ill. App. 3d 780, 783, 374 N.E.2d 1081, 1083 (1978); Wright v. Estate of Treichel, 36 Mich. App. 33, 38, 193 N.W.2d 394, 396 (1971); Raub v. Otterback, 89 Va. 645, 650, 16 S.E. 933, 934 (1893); Batchelder v. Mantak, 136 Vt. 456, 462, 392 A.2d 945, 949 (1978). Since the question of the Pennsylvania court's jurisdiction over Bloodworth was not \\\"fully and fairly litigated\\\" in the Pennsylvania court, we conclude that the Thompson rule is applicable and that the Pennsylvania court's recitation of jurisdiction did not preclude the Virginia trial court's inquiry into the Pennsylvania court's jurisdiction.\\nHaving determined that the Pennsylvania court's recitation of jurisdiction is not dispositive of this appeal, we must resolve whether the pleadings and affidavits submitted to the Virginia trial court raised a factual issue concerning the Pennsylvania court's jurisdiction. Issues concerning the jurisdiction of the court rendering the original judgment are determined by examining the law of the state in which the original judgment was entered. See Piedmont and Arlington Life Insurance Company v. Ray, 75 Va. 821, 823 (1881). Accord, Hosiery Mills v. Burlington Industries, 285 N.C. 344, 352, 204 S.E.2d 834, 840 (1974). In this case, this principle requires that we look to Pennsylvania law in determining whether Bloodworth made an appearance, thus conferring jurisdiction upon the Pennsylvania court.\\nWe conclude that, under Pennsylvania law, the agreed-upon facts in this case do not merit summary judgment. Under Pennsylvania law, a party's general appearance constitutes a waiver of any juris dictional objections he might have had. Peterson v. Philadelphia Suburban Transportation Co., 435 Pa. 232, 242, 255 A.2d 577, 583 (1969); Yentzer v. Taylor Wine Co., 409 Pa. 338, 342, 186 A.2d 396, 398 (1962). Pennsylvania holds that a person has made an appearance if any actions taken by him seek a determination upon the merits. Vant v. Gish, 412 Pa. 359, 367, 194 A.2d 522, 527 (1963). A person's physical presence at a trial, however, does not constitute an appearance. In First Regular Baptist Church v. Allison, 304 Pa. 1, 12, 154 A. 913, 917 (1931), the Supreme Court of Pennsylvania held that a person's appearance at trial to testify as a witness does not constitute a submission to the jurisdiction of the court. Accord, Appeal of Dethlefson, 434 Pa. 431, 433, 254 A.2d 6, 7 (1969); Stonecipher v. Keane, 268 Pa. 540, 546, 112 A. 233, 235 (1920); Northampton Residents Ass'n v. Northampton Township Bd. of Supervisors, 14 Pa. Commw. Ct. 515, 322 A.2d 787 (1974). In Van Aken v. Pennyback Woods Home Ownership Ass'n, 18 Pa. Commw. Ct. 552, 554, 336 A.2d 895, 896 (1975), the Pennsylvania Commonwealth Court followed this ruling and noted that the witness contesting jurisdiction in Allison had been named in the complaint. Thus, we conclude that, under Pennsylvania law, a person who is named in the complaint and who appears in court as a witness has not necessarily entered an appearance conferring jurisdiction over him upon the court.\\nOur conclusion that summary judgment was inappropriate should not be viewed as an assessment of the credibility of Blood-worth's factual allegations. Such a task belongs to the trier of fact unless the testimony is \\\"irreconcilable with logic and human experience.\\\" Williams v. Vaughan, 214 Va. 307, 310, 199 S.E.2d 515, 518 (1973). Although the inferences to be drawn from the evidence may differ in degree of probability, courts deciding upon motions for summary judgment must adopt those inferences most favorable to the party whose evidence it is sought to have struck, unless the inferences are strained, forced, or contrary to reason. Id.; Green v. Smith, 153 Va. 675, 680, 151 S.E. 282, 283 (1930).\\nOn remand, the trier of fact is the proper party to weigh the credibility of Blocdworth's claims. In weighing these claims, the trier of fact should remember that \\\"[t]he records of any judicial proceeding and any other official record of any court . of another state . . . shall be received as prima facie evidence\\\" of the facts asserted therein, provided such records are authenticated by the clerk of that court and certified by a judge of that court. Code \\u00a7 8.01-389. Moreover, \\\"[t]he judgment of a court of general jurisdiction of a sister state duly authenticated is prima facie evidence of the jurisdiction of the court to render it.\\\" Barber v. Barber, 323 U.S. 77, 86 (1944). Jurisdiction of the sister state's court is presumed unless disproved by extrinsic evidence or the record itself. Adam v. Saenger, 303 U.S. 59, 62 (1938). Thus, the party challenging the jurisdiction of a sister state's court is under a heavy burden when attempting to establish the absence of that court's jurisdiction. Barber v. Barber, 323 U.S. at 86. If, after receiving the evidence, the trier of fact concludes that the attorney entering into the stipulation was authorized by Bloodworth to enter such a stipulation or that Bloodworth engaged in any conduct seeking a determination upon the merits, the trier of fact should enter judgment for the plaintiffs.\\nThe judgment of the circuit court is reversed and the case is remanded for further proceedings.\\nReversed and remanded.\\nU. S. Const, art. IV, \\u00a7 1, states that \\\"[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.\\\" See also Code \\u00a7 8.01-389 (1977 Repl. Vol.).\"}"

va/2160659.json

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+"{\"id\": \"2160659\", \"name\": \"Horace W. Lindsey and Mary Louise Lindsey v. Floyd H. Clark and Helen Clark\", \"name_abbreviation\": \"Lindsey v. Clark\", \"decision_date\": \"1952-03-10\", \"docket_number\": \"Record No. 3905\", \"first_page\": \"522\", \"last_page\": \"528\", \"citations\": \"193 Va. 522\", \"volume\": \"193\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T01:55:45.515854+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Horace W. Lindsey and Mary Louise Lindsey v. Floyd H. Clark and Helen Clark.\", \"head_matter\": \"Richmond\\nHorace W. Lindsey and Mary Louise Lindsey v. Floyd H. Clark and Helen Clark.\\nMarch 10, 1952.\\nRecord No. 3905.\\nPresent, All the Justices.\\nThe opinion states the case.\\nGr. H. Branaman, for the appellants.\\nOwen 8. Livsie and McRae Werth, for the appellees.\", \"word_count\": \"1977\", \"char_count\": \"10758\", \"text\": \"Buchanan, J.,\\ndelivered the opinion of the court.\\nThis suit was instituted hy the Lindseys to enjoin the Clarks from using a driveway along the north side of the Lindsey lots and to have themselves adjudged the fee simple owners of the two lots claimed hy them. The trial court held that the Clarks owned a right of way on the south side of the Lindsey lots and, in effect, pnt the Lindseys on terms to make it available to them or else allow the Clarks to continue using the one on the north side.\\nThere is no controversy about the controlling facts.\\nIn 1937 the Clarks were the owners of four adjoining lots, Nos. 31, 32, 33 and 34, each fronting 25 feet on the east side of Magnolia avenue in West Waynesboro, and running back 150 feet to a 20-foot alley. The Clark residence was on Nos. 31 and 32.\\nBy deed dated July 24, 1937, the Clarks conveyed to C. W. Six and Mabel G. Six, his wife, the latter being a daughter of the Clarks, the front two-thirds of Lots 33 and 34, being a frontage of 50 feet and extending back 100 feet. On the rear one-third of these two lots Clark erected a dwelling and. garage for rental purposes. After this conveyance the Sixes built a house on their property, approximately 15 feet from the Clark line on the north and about 8 feet from their own line on the south. The Clark deed to the Sixes contained this reservation:\\n\\\"There is reserved, however, a right-of-way ten (10) feet in width, along the South side of the two lots herein conveyed, for the benefit of the property in the rear.\\\"\\nBy deed of January 16, 1939, the Sixes conveyed their property to William H. McGhee and wife, with the same reservation; and by deed of March 16,1944, the McGhees conveyed the property to the Lindseys, without any reservation.\\nThese three deeds were all made with general warranty and both the deed to the Sixes and the deed to the McGhees were duly recorded prior to the date of the deed to the Lindseys.\\nNotwithstanding that the 10-foot right of way was reserved by Clark along the south .side of the property conveyed to the Sixes, now owned by the Lindseys, Clark proceeded to use it along the north side of the Six property, and has so rased it ever since, without objection by the Sixes, or by the McGhees, or by the Lindseys until a few months before this suit was brought. There is no explanation of this change of location. Six, a witness for the Lindseys, testified that Clark stood in the driveway on the north and said, \\\"lam reserving this driveway to get to my back property.\\\" The time of that statement is not shown, but the words suggest it was at or before the time of the conveyance to the Sixes. When the McGhees bought the property in 1939, Six pointed out to them the driveway on the north, brat the reservation in the deed he made to the McGhees was, as stated, on the south.\\nIn 1946 the Lindseys had their attorney write to Clark, referring to the right of way in the deed to the McGhees, their grantors, and complaining, not of its location, hut of its being used for parking purposes. Again, on November 7, 1949, they had their attorney write Clark, calling attention to the fact that the reservation was along the south side of .their property- and complaining about the use of a water line on their property which had not been reserved. The Lindseys, the letter stated, wanted to erect a line fence and suggested a discussion of the matter before this was done.\\nThe Lindseys contend that the Clarks now have no right of way across their property because none was reserved along the north side and the one reserved on the south side has been abandoned and thereby extinguished. The trial court held it had not been abandoned and that holding was clearly right.\\nAbandonment is a question of intention. A person entitled to a right of way or other easement in land may abandon and extinguish such right by acts in pais; and a cessation of use coupled with acts or circumstances clearly showing an intention to abandon the right will be as effective as an express release of the right. Scott v. Moore, 98 Va. 668, 687, 37 S. E. 342, 348, 81 Am. St. Rep. 749; Daniel v. Doughty, 120 Va. 853, 858, 92 S. E. 848, 850; Magee v. Omansky, 187 Va. 422, 430, 46 S. E. (2d) 443, 448.\\nBut mere non-user of an easement created by deed, for a period however long, will not amount to abandonment. In addition to the non-user there must be acts or circumstances clearly manifesting an intention to abandon; or an adverse user by the owner of the servient estate, acquiesced in by the owner of the dominant estate, for a period sufficient to create a prescriptive right. Watts v. Johnson, etc., Corp., 105 Va. 519, 525, 54 S. E. 317, 319. 28 C. J. S., Easements, \\u00a7 60, p. 724. Nor is a right of way extinguished by the habitual use by its owner of another equally convenient way unless there is an intentional abandonment of the former way. Scott v. Moore, supra, 98 Va. at p. 686, 37 S. E. at p. 348. 17 Am. Jur., Easements, \\u00a7 144, p. 1029.\\nThe burden of proof to show the abandonment of an easement is upon the party claiming such abandonment, and it must be established by clear and unequivocal evidence. Daniel v. Doughty, supra, 120 Va. at p. 858, 92 S. E. at p. 850; Blanford v. Trust Co., 142 Va. 73, 82, 128 S. E. 640, 643.\\nClark specifically reserved a right of way over the lots now owned by the Lindseys. Very clearly he had no intention of abandoning that right of way. He was evidently mistaken as to where it was located; but his grantees, the Sixes, were likewise mistaken, as were also their grantees, the McGhees. Clark's use on the wrong location of the right of way reserved by him did not establish an intention on his part to abandon his right of way on the right location. He could not have intended to abandon his easement on the south of the Lindsey lots when he did not know that that was where his easement was.\\nThe residence built by the Sixes, and now occupied by the Lindseys, encroaches by about two feet on the 10-foot alley when located on the south side, and the Lindsey property on that side within the 10-foot space is terraced and planted with shrubbery and a tree. The Lindseys argue that the Clarks are estopped from claiming a right of way on that side because Clark knew where the Sixes were building the house. The only testimony about that is from Six, who said that Clark was away at work when the house was being built but came and went every day to and from his home on the adjoining property, saw where the house was located and made no objection; but Six also said that Clark had nothing to do with locating the house. There is no evidence that Clark knew, any more than Six knew, that the house was encroaching on the right of way. Clark did not think the right of way was on that side. Even if he had known it was there, he would not likely have known that Six was building on it. The location of the house was not influenced by anything Clark did or said. Clark knew nothing about the matter that Six did not know.\\n\\\"It is essential to the application of the principles of equitable estoppel, or estoppel in pais, that the party claiming to have been influenced by the conduct or declarations of another to his injury, was not only ignorant of the true state of facts, but had no convenient and available means of acquiring such information, and where the facts are known to both parties, and both had the same means of ascertaining- the truth, there can be no estoppel.\\\" Lindsay v. James, 188 Va. 646, 659, 51 S. E. (2d) 326, 332, 7 A. L. R. (2d) 597. The Lindseys had both actual and constructive knowledge of the situation. The driveway was there on the north side when they bought the property and Lindsey testified he could see where ears had been using it. They negligently failed to have their title examined but they are, of course, chargeable with the information contained in the recorded deeds. Pillow v. Southwest Virginia Imp. Vo., 92 Va. 144, 152, 23 S. E. 32, 34, 53 Am. St. Rep. 804; Florance v. Morien, 98 Va. 26, 33, 34 S. E. 890, 891; 15 M. J., Recording Acts, \\u00a7 15, p. 561.\\nThe suit therefore developed this situation: The Clarks were entitled to a 10-foot right of way along the south side of the Lindsey property. That right of way was partially blocked by the Lindsey house with its terraces and shrubbery. To require their removal would be very expensive to. the Lindseys and damaging to their property.- The Clarks were willing to let their right of way continue to be located on the north side.\\nThe court was well warranted in resolving the matter by applying the maxim \\\"He who seeks equity must do equity.\\\" That means that \\\"he who seeks the aid of an equity court subjects himself to the imposition of such term\\u00ae as the settled principles -of equity require, and that whatever be the nature of the controversy between the parties, and whatever be the nature of the remedy demanded, the court will not confer its equitable relief on the party seeking its interposition and aid, unless he has acknowledged and conceded, or will admit and provide for, all the equitable rights, claims, and demands justly belonging to the adversary party, and growing out of, or necessarily involved in, the subject matter of the controversy.\\\" 30 C. J. S., Equity, \\u00a7 91, p. 461. 2 Pom. Eq. Jur., 5th ed., \\u00a7 385, pp. 51-2.\\nA court of equity may in a case in which the principles and rules of equity demand it, condition its granting of the relief sought by the complainant upon the enforcement of a claim or equity held by the defendant which the latter could not enforce in any other way. United Cigarette Machine Co. v. Brown, 119 Va. 813, 825, 89 S. E. 850, 855, L. R. A. 1917 F, 1100; 2 Pom. Eq. Jur., supra, \\u00a7 386a, p. 57; 19 Am. Jur., Equity, \\u00a7 463, p. 319.\\nThe decree of the trial court provided: \\\"The Court will not require the expensive removal of the obstruction, so long as the right-of-way along the north side of the property is made available. However, it is ordered that the defendants desist from the use of the right-of-way for any purpose other than the use of the rear one-third portion of Lots 33 and 34, and only for the right of passage over and across the said- right-of-way to and from the property in the rear.\\\" And, further, \\\"Should the complainants make an election under this order, a further order will be entered fiving the rights of the respective parties.\\\"\\nThe decree appealed from is affirmed and the cause is remanded for further decree as indicated.\\nAffirmed and remanded.\"}"

va/2284796.json

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+"{\"id\": \"2284796\", \"name\": \"TIMOTHY L. REED v. COMMONWEALTH OF VIRGINIA\", \"name_abbreviation\": \"Reed v. Commonwealth\", \"decision_date\": \"1987-02-17\", \"docket_number\": \"No. 1189-85\", \"first_page\": \"665\", \"last_page\": \"667\", \"citations\": \"3 Va. App. 665\", \"volume\": \"3\", \"reporter\": \"Virginia Court of Appeals Courts\", \"court\": \"Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:47:58.047387+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"TIMOTHY L. REED v. COMMONWEALTH OF VIRGINIA\", \"head_matter\": \"Richmond\\nTIMOTHY L. REED v. COMMONWEALTH OF VIRGINIA\\nNo. 1189-85\\nDecided February 17, 1987\\nCounsel\\nJohn W. Dozier, Jr., for appellant.\\nThomas C. Daniel, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.\", \"word_count\": \"635\", \"char_count\": \"3793\", \"text\": \"Opinion\\nBAKER, J.\\nA grand jury in the City of Richmond returned an indictment against Timothy L. Reed (appellant) which charged that he \\\"did feloniously and unlawfully while a prisoner in the State Penitentiary of Virginia or while in the custody of an employee thereof, willfully break, cut or damage any building, furniture, fixture or fastening of such facility or any part thereof, rendering such facility less secure as a place of confinement. Va. Code \\u00a7 53.1-203.2.\\\" The relevant portion of the code section referenced in the indictment reads as follows:\\nIt shall be unlawful for a prisoner in a a state, local or community correctional facility or in the custody of an employee thereof to . .\\n2. Willfully break, cut or damage any building, furniture, fixture or fastening of such facility or any part thereof for the purpose of escaping, aiding any other prisoner to escape therefrom or rendering such facility less secure as a place of confinement .\\nFor violation of any of the provisions of this section, the prisoner shall be guilty of a Class 6 felony, (emphasis added).\\nAppellant was arraigned in the Circuit Court of the City of Richmond (trial court), waived trial by jury and was tried by the court. He was found guilty and sentenced to three years in the penitentiary. From that judgment he appeals to this court. The question of sufficiency of evidence is not before us, as the panel which granted this appeal limited the question to the error here assigned, to-wit: that the \\\"trial court erred in permitting the Commonwealth to amend the indictment to include an allegation of purpose or intent to render the penitentiary less secure as a place of confinement.\\\" We have examined the record in this case and we find that it does not disclose a motion to amend nor that the indictment was in fact amended as alleged by appellant.\\nAt the conclusion of the Commonwealth's evidence appellant moved for dismissal of the charges on the ground that the phrase \\\"for the purpose of' was not stated in the body of the indictment. After the trial court overruled his motion appellant rested without presenting any evidence on his behalf. He then renewed his motion to dismiss for the same reason previously stated, and was again overruled.\\nThe indictment incorporated by reference the provisions of Code \\u00a7 53.1-203(2). The inference to be drawn from the provisions of Code \\u00a7 19.2-220 and Rule 3A:6(a) is clearly that incorporation by such reference is contemplated by the Rule. Wall Distributors, Inc. v. City of Newport News, 228 Va. 358, 362, 323 S.E.2d 75, 77 (1984). Rule 3A:6(a), in pertinent part, provides: \\\"The indictment or information, in describing the offense charged, shall cite the statute or ordinance that defines the offense.\\\" By the citation of the statute in the indictment appellant was informed of the essential elements of the case against him. See Washington v. Commonwealth, 216 Va. 185, 192, 217 S.E.2d 815, 822 (1975). He suffered no prejudice by the omission in the body of the indictment of the words \\\"for the purpose of.\\\"\\nAlthough it would have been better practice to have included the phrase \\\"for the purpose of' in the body of the indictment, appellant was sufficiently informed of the offense with which he was charged and could fairly prepare his defense. See Wall Distributors, Inc., 228 Va. at 364, 323 S.E.2d at 78. We conclude that the failure to use that phrase did not invalidate the indictment.\\nAccordingly, we affirm the judgment of the trial court.\\nAffirmed.\\nBenton, J., and Keenan, J., concurred.\"}"

va/2310338.json

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+"{\"id\": \"2310338\", \"name\": \"Robert ELMORE, s/k/a Robert D. Elmore v. COMMONWEALTH of Virginia\", \"name_abbreviation\": \"Elmore v. Commonwealth\", \"decision_date\": \"1996-05-14\", \"docket_number\": \"Record No. 2366-94-2\", \"first_page\": \"424\", \"last_page\": \"431\", \"citations\": \"22 Va. App. 424\", \"volume\": \"22\", \"reporter\": \"Virginia Court of Appeals Courts\", \"court\": \"Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T19:08:09.076821+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert ELMORE, s/k/a Robert D. Elmore v. COMMONWEALTH of Virginia.\", \"head_matter\": \"470 S.E.2d 588\\nRobert ELMORE, s/k/a Robert D. Elmore v. COMMONWEALTH of Virginia.\\nRecord No. 2366-94-2.\\nCourt of Appeals of Virginia, Richmond.\\nMay 14, 1996.\\nElder, J., filed dissenting opinion.\\nPeter D. Eliades (Marks & Harrison, on brief), Hopewell, for appellant.\\nMarla Graff Decker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.\\nPresent: BAKER, COLEMAN and ELDER, JJ.\", \"word_count\": \"2291\", \"char_count\": \"13623\", \"text\": \"COLEMAN, Judge.\\nRobert D. Elmore was convicted in a bench trial of bank robbery and use of a firearm in the commission of a robbery. Elmore contends that the Commonwealth did not prove that he actually possessed a firearm and, therefore, the evidence is insufficient to sustain the conviction for use of a firearm in the commission of a robbery in violation of Code \\u00a7 18.2-53.1. We hold that the evidence is sufficient and affirm the defendant's conviction.\\nAt approximately 9:07 a.m. on March 10, 1995, the defendant entered the First Colonial Bank in Petersburg and approached Noni Deets, a teller at the bank. The defendant handed Deets a blue \\\"bank bag,\\\" and Deets immediately became \\\"suspicious\\\" because the bag was light and contained a note. Deets testified that the note stated, \\\"this is a robbery.\\\" The note also stated that the defendant did not want to hurt anyone and instructed Deets to \\\"quietly put all [her] twenties, fifties and hundreds in the bank bag.\\\" Deets explained the events that followed:\\nAfter I read the note I looked back down, like I couldn't believe what he was doing. He looked at me and he said, very quietly, I don't want to hurt anyone. And then he pointed to his pocket. And that indicated to me there was a gun, like he had stated in his note.\\n(Emphasis added). Deets put money in the bag, including \\\"bait money\\\" that triggered the alarm system. The defendant grabbed the bag and the note and fled from the bank.\\nDeets recognized the bank photograph of the robber but could not identify the defendant in court. However, two other bank employees who were present during the robbery positively identified the defendant as the person who robbed Deets.\\nThe defendant was indicted for bank robbery, use of a firearm in the commission of a robbery, and entering a bank while armed with a deadly weapon. After the Commonwealth presented its case, the defendant moved to strike the evidence on all three charges on the ground that the evidence was insufficient to prove that he was the person who committed the robbery. The trial court overruled the motion with respect to the indictments for bank robbery and use of a firearm in the commission of a robbery but struck the evidence as to the charge of entering a bank with a deadly weapon because the Commonwealth failed to prove \\\"the actual existence of a weapon.\\\" After the defendant presented his evidence, the court convicted him of the remaining two charges.\\nTo obtain a conviction under Code \\u00a7 18.2-53.1, \\\"the Commonwealth must prove that the accused actually had a firearm in his possession and that he used or attempted to use the firearm or displayed the firearm in a threatening manner.\\\" Yarborough v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342, 344 (1994). On appeal, the evidence must be reviewed in the light most favorable to the Commonwealth and must be accorded all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The trial court's judgment will not be disturbed unless it \\\"is plainly wrong or without evidence to support it.\\\" Id.\\nIn Yarborough, the accused approached the victim and stated, \\\"this is a stickup[;] give me all your money.\\\" 247 Va. at 217, 441 S.E.2d at 343. The victim testified that the accused had both of his hands in his pockets as he approached and that \\\"[s]he saw 'something protruding . from his right hand pocket of his jacket,' and she 'thought [there] was a gun in his pocket.' \\\" Id. On appeal, the Supreme Court held that \\\"the fact that [the victim] merely thought or perceived that [the accused] was armed is insufficient to prove that he actually possessed a firearm.\\\" Id. at 219, 441 S.E.2d at 344. The defendant contends that Yarborough is controlling here because the evidence is insufficient to prove that he actually possessed a firearm.\\nIn Sprouse v. Commonwealth, 19 Va.App. 548, 453 S.E.2d 303 (1995), we held that in light of Yarborough a \\\"defendant may not be convicted for the use of a firearm under Code \\u00a7 18.2-53.1 unless the evidence discloses beyond a reasonable doubt that the object used to cause the victim to reasonably believe it was a firearm was, in fact, a firearm.\\\" Id. at 551-52, 453 S.E.2d at 306. Therefore, we held that the evidence was insufficient to sustain a conviction under Code \\u00a7 18.2-53.1 where the Commonwealth conceded at trial that the object Sprouse used during the robbery \\\"was a toy pistol.\\\" Id. at 550, 453 S.E.2d at 305. In Sprouse, we would not permit the fact finder to infer from circumstantial evidence that an object was a firearm, where the Commonwealth conceded that the uncontroverted direct evidence proved that the object was not a firearm.\\nConversely, in Wilson v. Commonwealth, 19 Va.App. 535, 452 S.E.2d 884 (1995), we affirmed a conviction under Code \\u00a7 18.2-53.1 where the victim \\\"stated that she saw [a] gun's brown handle hanging out of [the accused's] jacket pocket during the robbery.\\\" Id. at 537, 452 S.E.2d at 885. Although the gun was not produced at trial, the victim \\\"stated that she knew what guns looked like and she was sure she saw the handle of a gun.\\\" Id.\\nHere, Noni Deets testified that the note the defendant gave her stated that he had a \\\"gun.\\\"\\nAnd then he pointed to his pocket. And that indicated to me there was a gun, like he had stated in his note.\\nAn out-of-court statement by the defendant that admits or acknowledges a fact or facts tending to prove guilt is admissible in evidence against the defendant. See Caminade v. Commonwealth, 230 Va. 505, 510, 338 S.E.2d 846, 849 (1986); Alatishe v. Commonwealth, 12 Va.App. 376, 378, 404 S.E.2d 81, 82 (1991). Thus, the evidence in this case, unlike the evidence in Yarborough, consists of more than the victim's mere belief or perception that the defendant had a gun. Here, the defendant's out-of-court statement admitted the existence of a \\\"gun.\\\" The circumstances here are distinguishable from those in Sprouse, where the Commonwealth con ceded at trial that Sprouse used a toy pistol. The only evidence that refutes the defendant's admission that he possessed a firearm is his general denial, which the trial court rejected.\\nThe record reveals that the defendant gave Deets a note stating that he had a \\\"gun,\\\" pointed to his pocket and said that he did not want to hurt anyone. This evidence is sufficient to prove beyond a reasonable doubt that the defendant actually possessed a firearm and used it in a threatening manner. Accordingly, we affirm the defendant's conviction under Code \\u00a7 18.2-53.1.\\nAffirmed,.\\n. On its face, the trial court's striking the evidence on the foregoing ground appears to be inconsistent with the defendant's conviction for the use of a firearm in the commission of robbery. Although it is well established that in a jury trial, the defendant cannot attack a conviction on the ground that it is inconsistent with a verdict of acquittal on a related charge, United States v. Powell, 469 U.S. 57, 63, 105 S.Ct. 471, 475-76, 83 L.Ed.2d 461 (1984); Sullivan v. Commonwealth, 214 Va. 679, 679-80, 204 S.E.2d 264, 265 (1974), no Virginia case has addressed inconsistent verdicts in a bench trial. Other jurisdictions, however, have held that the considerations that may justify inconsistent jury verdicts do not apply in a bench trial. See, e.g., United States v. Maybury, 274 F.2d 899, 903 (2d Cir.1960); Haynesworth v. United States, 473 A.2d 366, 368 (D.C.1984); Shell v. State, 307 Md. 46, 512 A.2d 358, 363 (1986). We are unwilling to fully address the issue in the context of the present case; it has not been briefed or argued by the parties. Nevertheless, assuming for purposes of this appeal that inconsistent verdicts in a bench trial are grounds for reversal in Virginia, we hold that the defendant's conviction for use of a firearm in the commission of robbery is not inconsistent with the dismissal of the charge for entering a bank while armed with a deadly weapon.\\nThe elements necessary to prove the existence of a \\\"firearm\\\" under Code \\u00a7 18.2-53.1 are not necessarily identical to those required to establish the existence of a \\\"deadly weapon\\\" under Code \\u00a7 18.2-93. Compare Holloman v. Commonwealth, 221 Va. 196, 197-99, 269 S.E.2d 356, 357-58 (1980) (holding that a spring-operated BB gun is a firearm for purposes of Code \\u00a7 18.2-53.1) with Cox v. Commonwealth, 218 Va. 689, 690, 240 S.E.2d 524, 525 (1978) (holding that a pistol that was \\\"capable of firing live ammunition \\\" was a deadly weapon even though it was actually \\\"loaded with wooden bullets\\\") (emphasis added). Here the trial court expressly noted that the Commonwealth had to prove that the defendant entered the bank while armed \\\"with a deadly weapon\\\" and \\\"struck the firearms in the bank [charge] because the specific firearm had not been prove[d].\\\" (Emphasis added). These statements indicate that the court found the evidence was insufficient to prove the existence of a deadly weapon because the Commonwealth did not show the specific type of firearm the defendant allegedly possessed. Therefore, in dismissing the charge for entering a bank while armed with a deadly weapon, the trial court did not necessarily find that the evidence was insufficient to prove the existence of a firearm under Code \\u00a7 18.2-53.1. Cf. Simon v. Commonwealth, 220 Va. 412, 418, 258 S.E.2d 567, 571 (1979) (\\\"Collateral estoppel becomes applicable only when the prior acquittal necessarily resolved the issue now in litigation\\\"); Lee v. Commonwealth, 219 Va. 1108, 1111, 254 S.E.2d 126, 127 (1979) (\\\"[Collateral estoppel does not apply if it appears that the prior judgment could have been grounded 'upon an issue other than that which the defendant seeks to foreclose from consideration' \\\") (quoting Ashe v. Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970)).\\n. Deets testified that the defendant took the note before leaving the bank. Therefore, the note was unavailable at trial and Deets' testimony regarding the contents of the note was admissible. Charles E. Friend, The Law of Evidence in Virginia \\u00a7 16-5, at 646-47 (4th ed. 1993).\"}"

va/2336274.json

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+"{\"id\": \"2336274\", \"name\": \"Pope v. Transparent Ice Company and Others\", \"name_abbreviation\": \"Pope v. Transparent Ice Co.\", \"decision_date\": \"1895-01-31\", \"docket_number\": \"\", \"first_page\": \"79\", \"last_page\": \"87\", \"citations\": \"91 Va. 79\", \"volume\": \"91\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T21:13:01.626337+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Pope v. Transparent Ice Company and Others.\", \"head_matter\": \"Richmond.\\nPope v. Transparent Ice Company and Others.\\nJanuary 31, 1895.\\n1. Application of Payments\\u2014Rights of Surety.\\u2014-Where a debtor makes a payment he has the undisputed right to make such application of it as he sees fit. If he fails to exercise his right, the creditor may then make the application, and if neither makes the application it becomes the ' duty of the court to so apply the payment as a sound discretion may, under the circumstances, dictate. And in the exercise of this discretion the interest of the debtor and the creditor are alone to be considered. Even sureties have no advantage in this particular over others.\\n2. Application of Payments by the Court.\\u2014Where a creditor has two claims against the same debtor, the one secured and the other not, and a payment has been made which neither the debtor nor the creditor has applied, and the court is called upon, in the exercise of its discretion, to make the application, and there is no other fact or circumstance upon which the court can lay hold to guide and direct its discretion, the payment must be appropriated to that debt which is least secured.\\nAppeal from a decree of tlie Circuit Court of Roanoke county pronounced at April term, 1894.\\nReversed.\\nThe Transparent Ice Company of Roanoke city purchased a lot in the city of Roanoke on which to erect its plant. It paid part of the purchase money in cash, and gave a deed of trust on the lot to secure certain deferred payments. The deed provided that, in case of sale, if there was a surplus after paying the debt secured and expenses, the surplus should be payable at such time and secured in such manner as the grantor might prescribe, or, upon his failure to give directions, as to the trustee might seem proper. Subsequently, the company purchased machinery of the Eichmond Ice Machine Company, paid part cash, and gave its notes for the deferred payments. The Eichmond company retained the title to the property sold by it, and this was written across the face of the notes given by the Transparent Ice Company. At a later date the Transparent Ice Company gave a deed of trust on its real and personal property to secure the notes due for the deferred payments on the machinery. This deed constituted the second lien on the plant. Several of these notes were renewed once or twice, and curtails were paid on some of them, and the notes themselves transferred to various holders. The appellant became the holder of two of them.\\nDefault having been made in the payment of certain of the notes, the trustees under each of the deeds of trust advertised the property for sale. The Transparent Ice Company thereupon filed its bill in the Circuit Court of Roanoke county against the trustees and the creditors secured to enjoin the sale.\\nThe bill sets forth several grounds for the injunction, but the most material was that the amount of the debts secured was not definitely fixed, and the rights of the respective creditors were not ascertained; that it was very doubtful how the money arising from the sale should be applied; and that creditors did not know their rights, and the property was in danger, from this cause, of being sacrificed. The injunction was awarded.\\nThe subsequent proceedings sufficiently appear in the opinion of the court.\\nJohn Dunlop, for the appellant.\\nJames Caskie, and Scott & Staples, for the appellees.\\nThe doctrine of the application of payments does not apply to this case for two reasons:\\n1. The doctrine is never invoked for the application of pay ments yet to be made of funds on hand; but only for the application of payments already made and not applied. Lingle v. Cook, 32 Gratt. 264. Here the fund is in hand under a judicial sale, there has been no application, and the debtor has had no opportunity to give his direction; but the court is asked to make an application.\\n2. The application was directed by the deed of trust when it was executed. Both notes were equally secured by the deed of trust. If this is an- express direction it must control; if there is no express direction, then the case is controlled by sec. 2442 of the Code, which declares that where the deed creates no priority, the proceeds shall be applied pro rata among all the debts secured.\\nLet it be admitted, however, for the sake of argument, that the doctrine of the application of payments applies to this case, and that all the contentions of the appellees heretofore made are untenable; ner ertheless, there can be no error in the decree of the court below of which the appellant can complain.\\nIf there be nothing in the case but the question of the order of the maturity of the notes, the rule as settled in Virginia is that the payments should be applied to the notes in the order of their maturity. In the case of Ross\\u2019 Ex\\u2019r v. McLauglan\\u2019s Adm\\u2019r and others, reported in 1 Gratt. 86, it was held that \\u201ca debtor by four bonds payable at successive periods, makes payments to his creditor, which, upon a settlement after the death of the debtor, are ascertained to amount to more than is sufficient to discharge the first bond. The creditor will not be permitted to apply the amount remaining after discharging the first bond as a credit upon the fourth; but the court will apply it to the second bond in relief of a party bound as surety for the amount of the second bon.\\\"\", \"word_count\": \"2953\", \"char_count\": \"16612\", \"text\": \"Keith, P.,\\ndelivered the opinion of the court.\\nThe Transparent Ice Company conveyed certain property by deed of trust dated February 18, 1891, to J. A. Dupuy, to secure three notes of 'the Richmond Ice Company, for $2,778.06 each, payable at the First National Bank of Roanoke, Va., in four, six, and nine months, respectively, from date, with interest from date. The trust creates no priorities as to these notes, but the note falling due at four months, having been first negotiated, became thereby entitled to priority of payment when the property was subsequently sold upon a decree in this cause. There remained after the payment of this note the sum of $1,132.82. When the property was advertised for sale, the Transparent Ice Company procured an injunction for reasons stated in its bill, and the trustee and creditors under this deed, and certain other prior lien creditors, were made defendants, and such proceedings were had that the property of the plaintiff was sold, and the proceeds proving insufficient to pay all its debts, this controversy arises as to the proper application of a payment upon the two notes secured in the deed of trust, payable at six and nine months. In these two notes the Richmond Ice Company was payee, and afterwards endorsed them to the present holder, the appellant. At maturity, the first note was duly protested, and the liability of\\u00bb the Richmond Ice Company, the endorser, was thereby established. When the second note fell due. the appellant, for some reason, failed to have it protested, and the endorser was thereby discharged. It is contended, upon the part of John Pope, the appellant, that the whole of the sum of $1,132.82 should be appropriated to the unsecured note, while upon the part of the Richmond Ice Company, it is claimed that the whole of that sum should be applied to the note upon which it is bound as endorser. The Circuit Court referred the case to a commissioner, to ascertain the lien; and the commissioner returned a report in which he places the debt held by the appellant, evidenced by the two notes, in the same class, finding that there was no priority between them; and that report was confirmed by the decree of the Circuit Court, which is now sought to be reviewed here.\\nThere are certain undisputed principles of law applicable to the subject of the appropriation of payments, which I shall state without referring to authorities to support them, as they are universally accepted.\\nThe first is where a debtor makes a payment, he has the undisputed right to make such application of it as he sees fit.\\nIf the debtor fails to exercise his right, the creditor may then make the application, and if the power be exercised by neither, it becomes the duty of the court to make it, and in its performance a sound discretion is to be exercised. It is said that the interest of the debtor and the creditor only are to be considered, and none others have any right to insist on the mode in which the payments shall be appropriated. In Gordon v. Hobart, 2 Story, 243, Judge Story said that the \\\"right of appropriation of payments was one strictly existing between the original parties; and no third person had any authority to insist upon any appropriation of such money in his own favor.\\\" To the same effect, see Coles v. Withers, 33 Gratt. 186. Even sureties, so much favored by the courts in many respects, enjoy in this particular no advantage over others. The Supreme Court of Connecticut in case of Stamford Bank v. Benedict, 16 Conn. 437, declares that \\\" a surety of a debtor has no voice in the appropriation of payments made by the debtor. ' ' \\\"The debtor and crditor have the sole ' right of controlling the payment, and the doctrine that sureties will be favored in the construction and enforcement of contracts has no application in such a case. To do so would be to defeat the object and end of suretyship, and to hold that the surety might have the money which was paid by the debtor so applied as to leave the creditor a loser notwithstanding his care and vigilance. ' ' And this seems to be the general current of judicial opinion. In the case just cited, the court held that to allow the endorser to direct the application of the money would be inequitable, and that neither the debtor nor creditor having exercised their privilege, the court would apply it to the most precarious debt.\\nThese may be considered cardinal rules by which courts are governed in the exercise of their discretion. Subordinate to these are certain minor rules by which the courts are influenced when neither the debtor nor the creditor have exercised their unquestioned right in making application of the' payment in controversy. As was said by this court in the case of Chapman v. Commonwealth, 25 Gratt. 721, 751: \\\"Where there are no other circumstances upon which the court can lay hold, it will apply the payment to the debt oldest in point of time. ' ' As said by the same court in Coles v. Withers, 33 Gratt. 186, 203-4:: \\\"The general rule subject to exceptions is, where there are two debts, the one secured and the other not, the court will apply the payment to the debt for which there is no security, and the reason given is that without such application, the creditor will lose part of his debt. ' ' And the court further says, \\\"that this rule is sustained by the uniform current of authorities all over the country. \\\" How, in this case, the deed of trust creates no priorities among the debts secured, and the debts, though falling due at different dates, came into existence at one and the same time. The debtor has made no application of the money under the control of the court, nor does it appear that it has the slightest interest in the disposition which the court may make of this question. Its only interest is to see that its property, or the proceeds of it, is applied in accordance with the trust which it created upon it, and it is one and the same thing to the Transparent Ice Company, whether the wdiole of this disputed sum shall be appropriated to the note due in six months, or to the one due in nine months, or shall be equally divided between them as was clone by the decree appealed from. ISTor does it appear that the creditor, the appellant here, has exercised,.or that he has been in a position to exercise the right of appropriation which devolves upon him, his debtor having failed to give any direction upon the subject. Unlike the debtor, however, he is vitally interested in the 'decision of the question. Upon the note due at six months, as has been before stated, he holds the Richmond Ice Company as endorser, while the note due at nine months is wholly unsecured, except by the deed of trust before referred to. The case then is before us stripped of all the circumstancs and, facts upon which courts have usually laid hold to aid their discretion in the application of pajcments, where that duty has been imposed upon them by the failure of both debtor and creditor to exercise their confessed rights, save that upon one note there is an endorser, while the other is wholly unsecured except by the deed of trust. It is believed that this question has not hitherto been thus presented in this court. In all the reported cases there has been some other fact, sufficient to influence the decision. Elsewhere, however, it seems to have arisen frequently.\\nThere is some diversity of authority, as courts have inclined to the common law rule that the application was to be made, where not otherwise directed, in the interest of the creditor, or to the rule of the civil law, that, under such circumstances, regard was to be had primarily to the interest of the debtor.\\nThe great weight of authority seems to be that in such a case as that now under consideration, where the court has no peculiar fact to aid its discretion, the application' must be made to that debt which is least secured, or in other words, in the interest of the creditor; and this seems to have been the principle of Chapman v. Commonwealth, 25 Gratt. 121, where it was applied to the oldest debt, and the law as recognized in Coles v. Withers, where it is said that, in such a case, it should be applied to the least secured or most precarious debt.\\nJudge Gibson says, in Harker v. Conrad, 12 Serg. and R. 301, 305: \\\"Where neither party has exercised it, the lanv nevertheless presumes, in ordinary cases, that the debtor intended to pay in the way which at the time was the most to his advantage, ' ' but here, as we have seen, the debtor has made no application, and can have no sort of interest in the decision of the question by the court.\\\" \\\"Where, however,\\\" Judge Gibson goes on to say, \\\"the interest of a debtor could not be promoted by any particular appropriation, there is no ground for a presumption of any intention on his part, and the law then raises a presumption, for .the same reason, that the payment was actually received in the way that was most to the advantage of the creditor. ' '\\nIn the case of Mathews v. Switzler, 46 Mo. 301, 303, the court says: \\\"The substantial question here is: shall the original creditor, who holds all the notes, have the full benefit of all the securities which he took for his own protection? He was not satisfied with the security of the deed of trust, and therefore required an additional name upon one of the notes. -x- In. the meantime he has surrendered no security, and done nothing to prejudice the right of the surety upon the note.\\\" There it seems that, so far from the court applying the payment so as to exonerate the surety, the fact that one note was made secure by the addition of a surety's name was * the reason which determined the court to apply the payment to the unsecured debt. Where a creditor has two claims against the same debtor, the one secured and the other not, upon a payment being made the court will apply it to the debt for which no security was taken. And Munger on Application of Payments lays it down as law that the holder of different notes, secured by deed of trust, may apply the entire proceeds of the sale under the deed to the payment of those last maturing, and will not be prevented thereby, either in law or equity, from obtaining judgment against a surety on the note first falling due, aud which, was the only note endorsed. And the same conclusion is stated in 18 Amer. and Eng. Ency. Law, page 251.\\nI am therefore constrained to the conclusion that, in accordance with the preponderance of decisions in other states, and the law as recognized by this court in the case of Coles v. Withers, 33 Gratt. 186; and Smith v. Lloyd, 11 Leigh, 512, where neither the debtor nor creditor has applied the payment, and the court is called upon in the exercise of its discretion to make an application of it, and there is no other fact or circumstance upon which the court can lay hold to guide and direct its discretion, the payment must be appropriated to that debt which is least secured, and that, therefore, the Circuit Court of Roanoke county should' have appropriated the whole of the sum in dispute to the note \\u00f3f the Transparent Ice Company falling due at nine months from the date thereof, instead of distributing the money between the two notes, and for this error the decree complained of must be reversed.\\nReversed.\"}"

va/2338399.json

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+"{\"id\": \"2338399\", \"name\": \"Miller v. Miller's Adm'r and Others\", \"name_abbreviation\": \"Miller v. Miller's Adm'r\", \"decision_date\": \"1896-01-23\", \"docket_number\": \"\", \"first_page\": \"510\", \"last_page\": \"516\", \"citations\": \"92 Va. 510\", \"volume\": \"92\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:09:51.400280+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Miller v. Miller\\u2019s Adm\\u2019r and Others.\", \"head_matter\": \"Richmond.\\nMiller v. Miller\\u2019s Adm\\u2019r and Others.\\nJanuary 23, 1896.\\n1. Equitable Separate Estate\\u2014No Particular Words to Create\\u2014\\u201c To Her Only Use and Behoof\\u201d Sufficient\\u2014Trustee Not Necessary.\\u2014No particular form of words is necessary to create a separate estate in a married woman. It is sufficient if the instrument, in any way, shows that it was intended for the wife to have the property to her sole and separate use. And though express trustees are usual in equitable separate estates, they are not necessary. If the property be given directly to the wife by apt words to create a separate estate, equity will treat the husband as trustee as to such property. A conveyance of land to two persons \\u201c to their only use and behoof,\\u201d one of whom is a married woman, vests in the' married woman a separate estate in her share of the land.\\n2. Equitable Separate Estate\\u2014Liability for Debts\\u2014Evidence of Intention to Charge.\\u2014The equitable separate estate in fee in lands, which a married woman holds free from any restraint on her powers of alienation, is liable for the payment of debts contracted on the faith and credit of it, which liability a court of equity will enforce during the coverture, or after its termination; and, if the rents and profits of such real estate will not pay such debts in a reasonable time, the land itself may be sold for that purpose. The execution of a bond, note, or other writing for the payment of money by such married woman, whether as principal or surety, is sufficient evidence of an intention to charge such separate estate.\\n3. Equitable Separate Estate\\u2014Liability for Open Accounts.\\u2014Where husband and wife occupy, as a home, the separate equitable estate in fee of the wife, and husband and wife employ laborers to cultivate the land for her benefit, which cultivation is necessary for her support and the enjoyment of the \\u25a0 estate, the separate estate is liable for such services, though only evidenced by open account.\\n4. Evidence\\u2014Exception to Incompetency of Witness\\u2014Cross-Examination.\\u2014 If, after an exception has been taken to the competency of a witness, the exceptor cross-examines him as to matters not brought out on the examination in chief, against the objection of the party calling him, the exceptor thereby waives his exception to the competency of the witness and makes him his own witness.\\nAppeal from a decree of the Circuit Court of Culpeper county, pronounced March 26, 1892, wherein the appellant was the complainant, and the appellees were the defendants.\\nReversed.\\nThis was a suit in chancery brought by the appellant for the purpose of having the estates of his father and mother, John A. Miller and Sarah J. Miller, settled under the direction of the court, and especially for the purpose of having an account of the debts and their priorities, and subjecting their real estate to the payment of said debts. The complainant sets forth in his bill an indebtedness to him, evidenced by several bonds of his father and mother, exhibited with the bill, and also an indebtedness of his mother to him of $360 for three years\\u2019 services on her farm. He charges that his mother owned an equitable separate estate in a tract of seventy-five or eighty acres of land, and also a small personal estate. The chief contention related to the liability of the land for the payment of the complainant\\u2019s debt. The land was acquired by his mother by a deed from her father, dated April 20, 1867, by which he conveyed to his daughters, Maria E. White and Sarah J. Miller (then a married woman), a tract of land in Culpeper county, \\u201cto have and to hold the hereby-granted premises unto the said Sarah J. Miller and Maria E. White forever, to their only use and behoof.\\u201d The land was after-wards divided between these daughters, and each thereafter held her share in severalty.\\nThe evidence showed that Sarah J. Miller and her husband lived on the land thus acquired, as a home, and used and enjoyed it, by having it cultivated and taking the proceeds for their support. A part of the time the land was cultivated on shares, but for several years the complainant lived with his parents on the land, and cultivated it for $120 a year. The complainant, in his deposition, states : \\u201c My father and mother agreed jointly to pay me $120 a year.\\u201d\\nBixey c& Barbour, for the appellant.\\nHill & Jeffries and Jeffries & White, for the appellees.\", \"word_count\": \"2365\", \"char_count\": \"13281\", \"text\": \"Riely, J.,\\ndelivered the opinion of the court.\\nThe first question to be disposed of is whether or not Sarah J. Miller took a separate estate in the land conveyed to her jointly with Maria E. White by the deed from Carter B. Cropp and his wife, to their only use and behoof.\\nbTo particular form of words is necessary in order to vest property in a married woman for her separate use, and thus create a separate estate. Whenever it appears, either from the language used, or from the nature of the transaction, or from the whole context of the instrument giving the estate, that it was intended for the wife to have the property to her sole and separate use, that intention will prevail; but such intention must be clear and unequivocal, for the law will not lightly deprive the husband of his legal rights. Nixon v. Rose, Trustee, 12 Gratt. 425, 428; Burks' \\\" Separate Estates,\\\" p. 12; 1 Minor's Insts. 317; Bishop on Law of Married Women, sec. 828; Pomeroy's'Eq. J., sec. 1102, and 1 Leading Cases in Equity, Pt. II., p. 732.\\nCertain words or expressions, where a contrary intention is not disclosed by other parts of the instrument conferring the' estate, have been held per se to manifest an intention to create an estate for the separate nse of the wife. And among the words and phrases so construed are the following : \\\" For her sole use and benefit \\\" ; \\\" for her own and sole use \\\"; \\u00a3i for her own nse and benefit, independent of any other person \\\" ; \\u00a3\\u00a3 for her sole and only nse,\\\" and \\u00a3\\u00a3 only for the use and benefit of the wife or her heirs.\\\" Nixon v. Rose, Trustee, supra; 1 Minor's Institutes 317, 318; Schouler on Husband and Wife, sec. 192; Bishop on .the Law of Married Women, sec. 828, and 1 Leading Oases in Equity, Part II., pp. 733-31.\\nIn the case at bar the gift is simply \\\" to their [her] only use and behoof.\\\" These words manifest at least as strong an intention to exclude the rights of the husband as some of those which, as we have seen, have been held per se to create an estate for the separate use. It is difficult to perceive any substantial difference between the words \\u00a3\\u00a3 to her only use and behoof\\\" and the words \\\" for her sole use and benefit,\\\" or the words \\\" for her own and sole use,\\\" or the words \\\" only for the use and benefit.\\\" The deed is a very simple one, and contains nothing whatever besides the words \\\" to their only use and behoof\\\" to explain or qualify the gift. It being made to her while a married woman, and expressed to be for \\\" her only use and behoof,\\\" we are of opinion that the words annexed to the gift clearly manifest an intention to exclude the rights of the husband, and created in her an equitable separate estate in fee.\\nThe deed conveyed the land directly to her, and not to a trustee for her use and benefit. This, however, makes no difference in the result, for it is a fundamental maxim of equity that a trust shall never fail for want of a trustee. \\u00a3\\u00a3Although the wife's separate estate is an equitable one,\\\" says Mr. Pomeroy, \\\" being in conception of equity a trust estate with the legal and equitable titles separated ; and although in strict theory, and in every regular form of settlement, the legal title should be conveyed to or held by express trustees, yet it is well settled, whatever doubts may have once existed, that the interposition of actual trustees is unnecessary.\\\" 3 Pom. Equity Jur., sec. 1100. If the property is given, by sufficient and apt words to express the intention, directly to the wife, for her sole and separate use, without the intervention of trustees, equity will carry the intention into effect, and treat the property as her separate estate, by declaring and holding the husband himself as trustee for her with respect to such property. 1 Leading Cases in Equity, Pt. II., p. 689; 1 Minor's Insts. 319; Story's Eq. Jur., sec. 1380, and Jones v. Clifton, 101 U. S. 225, 229.\\nInasmuch as Mrs. Miller took under the deed from her father an equitable separate estate in fee in her share of the land, free from the imposition of any restraint on her power of alienation, either expressly or impliedly, she had the power to make it liable for her contracts, w'hich liability may be enforced in a court of equity. The extent of the liability of the separate estate for the general engagements of the married woman, and the manner of its enforcement, were fully\\n\\u2022 considered in the case of Price, by, &c. v. Planters National Bank et als., decided at the present term, ante, p. 468, which -renders any extended discussion of the subject here unnecessary. It was there held that the liability will be enforced, as -well after the termination of the coverture as during its existence ; and that where the separate estate consists of realty,\\n\\u2022 only the rents and profits thereof will be subjected to the pay-ment of the debts, unless these will never discharge the debts, \\u2022or will not do so within a reasonable time, in which case the land itself may be sold.\\nUpon a review of the evidence, we are of opinion that there is no error in the decree of the Circuit Court establishing the debts reported by Commissioner Grimsley to be a charge in favor of the appellant upon the separate estate of Sarah J. Miller, deceased. The report of the commissioner is sustained by the evidence, whether the testimony of the appellant be admitted or rejected.\\nThe debts are in part evidenced by her bonds ; and it has been held time and again by this court that the execution of a bond, note, or other writing for the payment of money by a married -woman having an equitable separate estate, -whether as principal or surety, was sufficient evidence of an intention to charge the separate estate, without any proof of a positive intention to do so, or without even a reference to such estate contained in the writing. In no other way could the instrument be made effectual, and it could not be presumed that she intended to do a vain thing in executing it. Burnett and Wife v. Hawpe's Ex'or, 25 Gratt. 481; Darnall and Wife v. Smith's Adm'r, 26 Gratt. 878; Leake, Trustee, v. Benson, 29 Gratt. 153 ; Harshberger's Adm'r v. Alger and Wife, 31 Gratt. 52 ; Frank & Adler v. Lilienfeld et als., 33 Gratt. 377, and Bain & Bro. v. Buff's Adm'r, 76 Va. 371.\\nThe rest of the debts are open accounts for wages due for labor performed in the cultivation of the land which was her separate estate. The land was occupied by herself and her husband, who seems to have been an invalid and the owner of only a small amount of personal property, as their home. Its cultivation was for her benefit, and necessary for her support and the enjoyment of the estate. And if the testimony of the appellant is read, as we think it should be, it is clearly shown that he was employed, at the prices charged, by Sarah J. Miller and her husband, and that the services were duly rendered.\\nHe was asked but a single question on his examination-in-chief, and only examined as to the statement made by the witness, E. C. Wood, that he (the appellant) had told him (Wood) that he was working for a part of the crop, which statement he wholly denied. Upon this matter he was not cross-examined at all, but the counsel for the appellees com menced at once to subject him to a most rigid and protracted examination upon all the matters of fact involved in the suit. This was done, too, after exception by the counsel for the appellant, and notice, that if the appellant were cross-examined as to other matters than those to which the examination-in-chief related, he must be treated as a witness for the appellees, and the exception as to his competency waived. In the case of the Philadelphia and Trenton R. R. Co. v. Siimpson, 14 Peters 448, 461, it was said^ by Judge Story, in delivering the opinion of the court, \\\" that a party has no right to cross-examine any witness, except as to facts and circumstances connected with the matter stated in his direct examination. If he wishes to examine him as to other matters, he must do so by making the witness his own, and calling him, as such, in the subsequent progress of the cause,\\\" which was practically what was done in this case. And to the same effect is 1 Greenleaf on Evidence, sec. 445.\\nThe course of cross-examination pursued was, in effect, to make the appellant the witness of the appellees, and to waive their exception as to his competency.\\nWe find no error in the decree of the Circuit Court, except its refusal to subject the separate estate of Sarah J. Miller to the payment of the debts due to the appellant, and which it established against her estate. Por this error its decree, to that extent, must be reversed, and the cause remanded to the Circuit Court, with direction to cause the land to be rented for the payment of the debts until they are discharged, or to sell the same for that purpose, if the rents and profits of the land will not discharge the debts, or do so within a reasonable time.\\nReversed.\"}"

va/2412672.json

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+"{\"id\": \"2412672\", \"name\": \"Harper Green Langford v. Commonwealth\", \"name_abbreviation\": \"Langford v. Commonwealth\", \"decision_date\": \"1930-06-12\", \"docket_number\": \"\", \"first_page\": \"879\", \"last_page\": \"889\", \"citations\": \"154 Va. 879\", \"volume\": \"154\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T02:00:10.338408+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Harper Green Langford v. Commonwealth.\", \"head_matter\": \"Mytheville.\\nHarper Green Langford v. Commonwealth.\\nJune 12, 1930.\\nAbsent, Prentis, C. J., and Epes, J.\\nThe opinion states the case.\\nO. G. Kendig and N. S. Turnbull, Jr., for the plaintiff in error.\\nJohn R. Saunders, Attorney-General,.Leon M. Bazile and Edwin H. Gibson, Assistant Attorneys-General, and Joel W. Flood, for the Commonwealth.\", \"word_count\": \"2357\", \"char_count\": \"13313\", \"text\": \"Holt, J.,\\ndelivered the opinion of the court.\\nHarper Green Langford, at the July term of the Circuit Court of Charlotte county, was convicted of violating the prohibition law. A jury fixed his punishment at four years confinement in the penitentiary. That verdict was confirmed by the trial court and its judgment is now before us on a writ of error.\\nThe indictment contains two counts. In the first he is charged with the unlawful manufacture of ardent spirits and in the second with the possession without permit of a still. Each of these counts contains a^ charge of previous conviction.\\nThe defendant moved to quash on the ground that his first conviction was on a blanket indictment; that the record of this conviction does not show the particular offense upon which it rests; that the law only imposes additional and different penalties for certain violations of the prohibition law when committed a second time, and that for these reasons it. is not possible to say, looking to the record alone, that the rules governing second conviction apply at all to the instant case. Keeney v. Commonwealth, 147 Va. 678, 137 S. E. 478.\\nBy statute in Virginia any person who unlawfully manufactures distilled ardent spirits is guilty of a felony [Code, section 4675(5)]; and in the same section it is declared that any person who shall violate other provisions of designated sections shall be deemed guilty of a misdemeanor for the first offense and of a felony for any subsequent offense committed after the first conviction; and as an exception to the general rule thus stated it was futher provided that the offense of drinking, giving away or receiving ardent spirits should not be deemed a felony in any case, subject to certain further exceptions, and that the purchasing or having in possession of ardent spirits for personal use should in no case be deemed, a felony, all of which makes plain the necessity for setting out in detail the offense, for which the first conviction was had.\\nA prior conviction does not change or increase the penalty for manufacturing, which is a felony in itself, and since this is true there was no occasion for putting a charge of second conviction in the first count, and it should not have been done, but no harm followed because it properly appeared in the second count and in that way and in orderly procedure came to th\\u00e9 jury's attention.\\nWhen we come to the second count the situation changes. The possession of a still is a misdemeanor, Code sections 4675(6), 4675(20), punishable by a fine of not less than $50.00 nor more than $500.00 and by confinement in jail not less than one nor more than six months, and in this subsection 6 it is provided that the penalty for any subsequent offense committed after the first conviction which is not declared to be a felony, shall be by a fine not exceeding $500.00 and by imprisonment in jail for not less than three nor more than twelve months. It was, therefore, proper in the second count to set out the first conviction which raised the offense from a simple to an aggravated misdemeanor carrying heavier penalties. The additional penalties apply to all second offenses not made felonies by the statute and apply in the instant case. When we are dealing with first convictions relied upon to support a charge of felony we find that there are certain exceptions; that not all first convictions will support such a charge and, therefore, that their character should be set out, but when we come to first convictions which aggravate the second offense and enlarge its punishment, as a misdemeanor only, we find that any previous conviction is sufficient unless it be one which makes the second offense a felony, and for that reason its details are not necessary. A very satisfactory discussion of the subject';of second conviction by Judge Chichester will be found in. Keeney v. Commonwealth, 147 Va. 678, 137 S. E. 478.\\nThe motion to quash was general and since the-second count was good,- it should have been rejected even though the first contained prejudicial error. State v. Cartright, 20 W. Va. 32; Commonwealth v. Litton, 6 Gratt. (47 Va.) 691; 31 Corpus Juris, page 812.\\nSince no objection can be successfully urged against the second count, it follows that the court committed no error in permitting the introduction of a record showing a first conviction, although that record does not show the crime in detail upon which, it rests. If the first conviction did not make the second offense a felony, it increased its gravity even, though it remained a misdemeanor, and so this evidence was competent.\\nDoes the evidence sufficiently support the verdict? The trial court thought it did and confirmed it by judgment. By statute it is provided, Code section 6363, that: \\\"The judgment of the trial court shall not be set aside unless it appears from the evidence that such judgment is plainly wrong, or without evidence to support it.\\\" Davis v. Commonwealth, 132 Va. 527, 110 S. E. 252; Nelson v. Commonwealth, 153 Va. 909, 150 S. E. 407. Of course the evidence relied upon must not strain the credulity of the court; in short, it must fairly sustain the verdict. Flannagan v. Northwestern Mutual Life Insurance Co., 152 Va. 38, 146 S. E. 353; Meade v. Saunders, 151 Va. 636, 144 S. E. 711.\\nOn the day preceding the arrest, S. A. Jackson, a deputy sheriff, with a companion, went to see R. A. Langford about a matter of business not connected with this prosecution. Upon reaching Mr. Langford's home they were told that he was not there, but had gone with one A. J. Camp to the home of R. G. Lang-ford, father of the defendant. Jackson then set out for the R. G. Langford home, but after traveling about six miles his car mired and he had to get out and walk. Not being familiar with that locality he followed a fresh car track which led him down a plantation road to its intersection with another plantation road and then into an obscure side road, down which he came upon the car he was following. It stood by a ford across a branch and by it stood a young girl who seemed much excited. He asked to be directed to the Langford home and was told that he should have turned to the right instead of to the left at the plantation road. Jackson then started back to his car. When he had gone about sixty yards over a hill and out of sight of the ear in the branch, he heard its horn blow and turned back. When he again came in sight the small girl was still standing by it. Coming down the branch and about twenty-five steps away was an older girl, and coming up the branch and about forty yards down the stream was the accused, who when first seen was about sixty-eight yards from where the still was afterwards found downstream. About the time that Jackson first saw him he \\\"ducked down out of sight\\\" and came to his car from a direction different from that of his first approach. When Langford reached his automobile he began to pour water on the front wheel and told Jackson that he had come there to wash his ear. Jackson left and Langford soon afterwards overtook and passed him. His car was then still unwashed.\\nThe accused, testifying as to what occurred on this occasion, said that he took his car to wash it and when Jackson came was away because of some call of nature. He further denied that when seen by Jackson he was coming up the branch from the direction of this distillery. Neither of the girls was called as witnesses,\\nHe did not, as a matter of fact, wash his car and so the jury was warranted in believing that he did not take it to this branch for that purpose and that on a material point his testimony did not conform to the facts.\\nOn the day following, Jackson, another deputy sheriff, and two prohibition officers went back to this ford. Downstream 128 yards, not on Langford's land but near it, they found a still being operated by A. J. Camp. Camp ran but was captured after a chase and about a mile away. The party then returned to the still site to await possible developments. After half an hour the defendant, leading a pair of mules, came down the road, tied them to a tree a little over 100 yards away, and started directly to the still itself. After going a short distance he whistled to signal his approach and one of the deputy sheriffs answered. With confidence so fortified, he continued to advance until he found himself under arrest.\\nSubstantially the same account of what took place is given by the other officers. Mr. Robey, a deputy sheriff, said that while Camp was under arrest, and when the accused was coming towards the still, Camp raised his hands and tried to motion him back, and persisted in talking so loud when Langford was approaching that he threatened to shoot him unless he kept quiet.\\nCamp, himself, lived several miles from, where this still was and had left his automobile at Langford's home on the day of the arrest. His evidence is that he took his ear to Langford's to get a connecting rod for it and walked from there to the distillery.\\nThe accused, when arrested, made no resistance, disclaimed all knowledge of the still, and said that he was then engaged in hauling ties in that neighborhood for his father. In further explanation of his conduct he stated that he saw smoke down in the woods and impelled by curiosity came to find out about it, and furthermore, suspecting the possibilities of a still, he whistled as he came to prevent being shot by some suspicious and nervous operator. We think it may be taken as true that the accused was, or had been, hauling ties for his father, but this explanation of his conduct is not entirely satisfactory and manifestly did not satisfy the jury. We find him on the day preceding his arrest coming from the direction of the still which was only sixty-eight yards away, and we have seen that he accounted for his presence there by statements which appeared not to conform to the facts. The next day he turned up at this same out-of-the-way place, led, as he said, by curiosity and because he saw some smoke. It is not reasonable to believe that the fire had been replenished from the time Camp ran until Langford was arrested, or for about an hour, by that time it probably gave off little or no smoke; nor is it likely 1hat Camp would have come seven or eight miles from home to locate a still where ties were being cut and hauled unless there was some understanding with the lumbermen. He seems to have made the Langford home his headquarters; he was there upon the day preceding his arrest; his automobile was there on the day he was arrested and by his evidence he walked from there to the still. When the officers stood concealed around it, and when Langford was approaching, Camp in vain gave him the grand hailing sign of distress, and made so much noise that an officer had to threaten to shoot him to keep him quiet. None of these incidents are sufficent to establish guilt, but taken together they are sufficient to sustain the jury's verdict. Of course circumstancial evidence should be looked upon with caution, but evidence is seldom sufficient to establish any fact as demonstrated and beyond all doubt. Witnesses sometimes perjure themselves and if too much were required by way of proof the administration of law as a practical proposition would be at an end. Facts which a jury find to be true and which, from the evidence, may be true, must be taken as established.\\nThose found present at a still in operation are presumed to be guilty of manufacturing, Code section 4675(20); Zimmerman v. Commonwealth, 148 Va. 745, 138 S. E. 569. Of course this presumption is rebuttable. When it is overborne it is usually a question for the jury. Langford, at the time of his' arrest,- was-only twenty or twenty-five yards from the still and coming directly towards it.\\nWe think that he was present within the purview of the statute, nor Was it necessary that he should have actually beea present on that particular day. Any day within the twelve months preceding his indictment was sufficient. Widgeon v. Commonwealth, 142 Va. 658, 128 S. E. 459.\\nThe jury did not accept the evidence of the defendant, of his father, or of Camp, and they were not obliged to accept it, even when uneontradieted. Clopton's Case, 109 Va. 813, 63 S. E. 1022; Boggs v. Commonwealth, 153 Va. 828, 149 S. E. 445, and authorities there cited. Camp may have been disinterested, but his conduct does not support that conclusion. He had already been convicted and so was beyond praise or blame. He had tried to protect Langford once and the jury may have believed that he was still anxious to help. The jury heard these witnesses testify. They were not called upon to accept their statements and did not accept them, and their judgment the trial judge has stamped with his approval.\\nThe jury reached the conclusion that the accused was guilty, the trial judge thought they were right, there is evidence to support their judgment, and it must stand affirmed.\\nAffirmed.\\nHudgins, J., dissenting.\"}"

va/251634.json

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+"{\"id\": \"251634\", \"name\": \"Ricky Arnez CHRISTIAN v. COMMONWEALTH of Virginia\", \"name_abbreviation\": \"Christian v. Commonwealth\", \"decision_date\": \"2000-11-07\", \"docket_number\": \"Record No. 0558-98-1\", \"first_page\": \"704\", \"last_page\": \"723\", \"citations\": \"33 Va. App. 704\", \"volume\": \"33\", \"reporter\": \"Virginia Court of Appeals Courts\", \"court\": \"Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:07:48.898854+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ricky Arnez CHRISTIAN v. COMMONWEALTH of Virginia.\", \"head_matter\": \"536 S.E.2d 477\\nRicky Arnez CHRISTIAN v. COMMONWEALTH of Virginia.\\nRecord No. 0558-98-1.\\nCourt of Appeals of Virginia, Richmond.\\nNov. 7, 2000.\\n(Robert Moody, IV; Timothy S. Fisher; Kinick, Segall, Moody & Lewis; Overman & Cowardin, P.L.C., Newport News, on brief), for appellant.\\nShelly R. James, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.\\nPresent: FITZPATRICK, C.J., BENTON, COLEMAN, ELDER, BRAY, BUMGARDNER and HUMPHREYS, JJ., and COLE, Senior Judge.\", \"word_count\": \"5418\", \"char_count\": \"33785\", \"text\": \"UPON A REHEARING EN BANC\\nBRAY, Judge.\\nRicky Arnez Christian (defendant) was convicted in a bench trial for possession of cocaine with intent to distribute, a violation of Code \\u00a7 18.2-248, and related firearm offenses. On appeal, he complains that the trial court erroneously refused to suppress evidence seized during an unlawful detention and, additionally, challenges the sufficiency of the evidence to prove the requisite intent to distribute the offending drugs. Finding no error, a panel of this Court affirmed the convictions. Upon rehearing en banc, we, likewise, affirm the trial court.\\nI.\\nUpon review of both a denial of a motion to suppress and a challenge to the sufficiency of the evidence, we consider the record in the light most favorable to the prevailing party below, the Commonwealth in this instance. Bynum v. Commonwealth, 23 Va.App. 412, 414-15, 477 S.E.2d 750, 751-52 (1996).\\nOn the evening of October 4, 1996, officers of the Newport News Police Narcotics Enforcement Unit were conducting a \\\"drug reverse [sting] operation in Fairfield Apartments,\\\" undertaken in response to \\\"a lot of complaints in reference to drug sales in that area,\\\" \\\"a high drug area.\\\" \\\"[V]ice and narcotics\\\" Officer W.L. Stokes acted as \\\"security for two female officers [in \\\"plain clothes\\\"] who . were making sales of imitation cocaine to people who walked up or drove up in the area.\\\" The undercover officers were equipped with hidden communication devices and, following each transaction, notified an \\\"apprehension team,\\\" assembled in the laundromat office of a nearby apartment building, to arrest the purchaser. The office, located \\\"just inside the doorway\\\" of the building, opened directly into a foyer, which also accessed two occupied apartments.\\nIn the midst of the ongoing undercover police activity, at approximately 10:15 p.m., Officer Stokes noticed someone holding a \\\"gun,\\\" walking directly toward the apartment building. Via the communication link, he quickly advised the team that a person was approaching with \\\"a gun in his hand.\\\" Alerted by Stokes, Officer T.G. Lecroy, the team member assigned \\\"to prevent anyone from getting hurt,\\\" observed the individual \\\"come through the door, saw a gun, took the gun from him\\\" and escorted him into the \\\"office area.\\\" Once inside, Lecroy immediately recognized defendant and, aware he was a convicted felon, arrested him for possession of the firearm. A related search of defendant disclosed a plastic bag containing 2.3 grams of cocaine, a pager, and $935, \\\"broken into nine $100 bundles,\\\" with the balance \\\"just loose in his pocket.\\\" No \\\"means of ingesting\\\" the cocaine was found on defendant's person.\\nAfter advising defendant of his Miranda rights, Lecroy \\\"asked . how much cocaine he had started with,\\\" and defendant answered, \\\"a large eight-ball,\\\" \\\"drug . terminology\\\" referencing one-eighth of an ounce of cocaine, approximately 3.5 grams. Upon further inquiry, defendant stated that he obtained the cocaine from \\\"Wooten,\\\" an individual known to Lecroy as \\\"into dealing narcotics.\\\"\\nOfficer M.L. Davenport, an expert in \\\"drug matters,\\\" opined that possession of an \\\"eightball\\\" of cocaine, together with the pager, cash and weapon, was \\\"inconsistent with personal use\\\" of the drug. Davenport explained that a pager provides communication to \\\"persons in the drug trade\\\" and \\\"weapons . a means of protection.\\\" He noted that \\\"large amounts of money\\\" derived from \\\"drug distribution\\\" are oftentimes packaged in \\\"hundred dollar increments\\\" because \\\"[i]t's easier to count.\\\" On cross-examination, Davenport added that users of cocaine will, \\\"in most cases,\\\" carry on their person \\\"some means\\\" of consuming the drug. Questioned further, he approximated the \\\"street value\\\" of an \\\"eightball\\\" at \\\"one fifty to two twenty-five.\\\"\\nDefendant testified that, on the day of arrest, he cashed his weekly \\\"paycheck,\\\" \\\"seven hundred and some dollars, . [and] arranged [his] money,\\\" commingling the funds with $500 already in his possession. \\\"He subsequently purchased \\\"about an eight-ball\\\" of cocaine for personal use and \\\"took [several] hits\\\" in his wife's car before approaching the apartment building. At the time of the offense, defendant was regularly earning $7.71 per hour over a forty-hour workweek, resulting in $251.28 net pay for the period.\\nII.\\nDefendant first complains that he was unlawfully seized by Officer Lecroy, requiring suppression of all evidence subsequently obtained by police. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691-92, 6 L.Ed.2d 1081 (1961).\\n\\\"Ultimate questions of reasonable suspicion and probable cause to make a warrantless . seizure involve issues of both law and fact and are reviewed de novo on appeal.\\\" Glasco v. Commonwealth, 26 Va.App. 763, 770-71, 497 S.E.2d 150, 153 (1998) (citation and internal quotations omitted). However, \\\"[i]n performing such analysis, we are bound by the trial court's findings of historical fact unless 'plainly wrong' or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.\\\" McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citation omitted). \\\"In reviewing a trial court's denial of a motion to suppress, 'the burden is upon appellant to show that this ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error.' \\\" Glasco, 26 Va.App. at 770, 497 S.E.2d at 153 (citation omitted).\\nIn resolving defendant's argument, we find it helpful to revisit Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the landmark decision of the Supreme Court of the United States that addressed the Fourth Amendment implications of the detention and pat-down of a citizen by police investigating suspicious conduct. In Terry, Cleveland Police Officer Martin McFadden, a detective with thirty-five years experience, was patrolling the \\\"vicinity . downtown . for shoplifters and pickpockets\\\" when his \\\"attention was attracted by\\\" defendant and a companion \\\"standing on [a] corner.\\\" Id. at 5, 88 S.Ct. at 1871. As McFadden watched, each man in turn repeatedly \\\"walk[ed] . past some stores[,] . paused for a moment and looked in a store window, . walked on ., turned around\\\" and returned to the corner to confer with the other, \\\"looking in the same window\\\" en route. Id. at 6, 88 S.Ct. at 1872. After ten or twelve minutes of such behavior, the two, then joined by a third man, \\\"walked off.\\\" Id.\\nSuspicious that the men were \\\"casing a job, a stick up,\\\" McFadden decided \\\"that the situation was ripe for action,\\\" approached the three, identified himself and \\\"asked for their names.\\\" Id. at 6-7, 88 S.Ct. at 1872. Receiving a \\\" 'mumbled' . 'response' \\\" and fearful \\\" 'they may have a gun[,]' \\\" he \\\"grabbed [Terry], . spun him around ., and patted down the outside of his clothing[,]\\\" discovering a pistol. Id. Terry was then arrested and subsequently convicted of a weapons offense. Id. at 7, 88 S.Ct. at 1872. On appeal, he advanced a Fourth Amendment challenge to the constitutionality of the stop, seizure and search.\\nIn affirming Terry's conviction, the Court recognized that \\\"effective crime prevention and detection\\\" often requires \\\"swift action predicated upon the on-the-spot observations\\\" of police. Id. at 20, 22, 88 S.Ct. at 1879, 1880. However, the Court cautioned that, to comport with the \\\"Fourth Amendment's general proscription against unreasonable searches and seizures[,]\\\" police acting in response to such circumstances \\\"must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant . intrusion\\\" upon the protected interests of citizens. Id. at 20-21, 88 S.Ct. at 1879-80. Thus, the dispositive inquiry becomes, \\\"would the facts available to the officer at the moment of the seizure or the search \\\"warrant a man of reasonable caution in the belief that the action taken was appropriate?[,]\\\" an objective test. Id. at 21-22, 88 S.Ct. at 1880 (citation omitted). If so, \\\"a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.\\\" Id. at 22, 88 S.Ct. at 1880.\\nThe \\\"crux\\\" of Terry, however, was not the propriety of McFadden's \\\"steps to investigate . suspicious behavior,\\\" but, rather, the \\\"invasion of Terry's personal security by searching him for weapons in the course of that investigation[,]\\\" an issue related to the more \\\"immediate interest of the police officer in taking steps to assure . that the person . is not armed with a weapon that could . be used against him.\\\" Id. at 23, 88 S.Ct. at 1881. Unwilling to expose police to \\\"unnecessary risks[,]\\\" the Court refused to \\\"blind [itself] to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest.\\\" Id. at 23-24, 88 S.Ct. at 1881 (emphasis added). Accordingly, \\\"[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would . be clearly unreasonable to deny . the power to take necessary measures to determine . and to neutralize the threat____\\\"\\nId. at 24, 88 S.Ct. at 1881 (emphasis added).\\nThus, like the objective test for reasonable suspicion, \\\"the issue is whether the reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.\\\" Id. at 27, 88 S.Ct. at 1883 (emphasis added). If so, police may undertake a search and related seizure appropriate to the \\\"concrete factual circumstances of individual cases,\\\" \\\"confined in scope to an intrusion reasonably designed to discover\\\" \\\"hidden instruments\\\" that threaten both police and others. Id. at 29, 88 S.Ct. at 1884.\\nApplying these companion principles to the facts in Terry, the Court noted that McFadden had observed Terry and his companions engage in a pattern of conduct which, though lawful, was \\\"unusual\\\" and reasonably supported a police officer, \\\"experience[d] in the detection of thievery,\\\" in the \\\"hypothesis that these men were contemplating a daylight robbery . likely to involve weapons.\\\" Id. at 23, 28, 88 S.Ct. at 1881, 1883. The Court, therefore, concluded that the circumstances provided sufficient justification for the encounter, seizure and \\\"pat down\\\" of Terry, limited acts \\\"necessary for the protection of (McFadden] and others\\\" in the pursuit of an appropriate investigation. Id. at 30, 88 S.Ct. at 1884.\\nSeveral years after deciding Terry, the Court, in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), again considered the Fourth Amendment implications of an investigatory seizure and search of a citizen. There, Bridgeport Connecticut Police Sergeant John Connolly received a tip, deemed reliable by the Court, that Williams, then seated in a nearby vehicle, was \\\"carrying narcotics and had a gun at his waist.\\\" Id. at 144-45, 92 S.Ct. at 1922. Connolly, alone at 2:15 a.m. on \\\"car patrol duty\\\" in a \\\"high-crime area,\\\" \\\"approached the vehicle to investigate the . report,\\\" \\\"tapped on the car window and asked . Williams[ ] to open the door.\\\" Id. When Williams instead \\\"rolled down the window[,]\\\" Connolly \\\"reached into the car and removed a fully loaded revolver from Williams' waistband.\\\" Id. at 145, 92 S.Ct. at 1923.\\nIn a resulting prosecution for illegal possession of the weapon, Williams challenged the admissibility of the evidence, complaining that it was the fruit of an unlawful search and seizure. Id. In affirming the conviction, the Supreme Court recalled the lessons of Terry, concluding that\\n[t]he Fourth Amendment does not require a policeman . to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.\\nId. at 145-46, 92 S.Ct. at 1923 (citation omitted) (emphasis added).\\nMoreover, the Court again emphasized that police engaged in an \\\"investigatory stop\\\" \\\"may conduct a limited protective search for concealed weapons\\\" whenever justified in the belief that the subject is armed and dangerous. Id. at 146, 92 S.Ct. at 1923. Echoing Terry, the Court reasoned that such intrusion\\nis not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose.\\nId. (emphasis added).\\nIn the years following Terry, Williams and their progeny, our Court has frequently cited such decisions with approval, incorporating the attendant principles as familiar guideposts in our jurisprudence. Faithful to the rationale of Terry, we have resolved countless fact-specific \\\"stop and frisk\\\" appeals, consistently instructing that\\n\\\"[tjhere is no 'litmus test' for reasonable suspicion. Each instance of police conduct must be judged for reasonableness in light of the particular circumstances.\\\" \\\"In order to determine what cause is sufficient to authorize police to stop a person, cognizance must be taken of the 'totality of the circumstances \\u2014 the whole picture.' \\\"\\nHarmon v. Commonwealth, 15 Va.App. 440, 445, 425 S.E.2d 77, 79 (1992) (citations omitted). Circumstances we have recognized as relevant in a TerryfWilliams analysis include characteristics of the area surrounding the stop, the time of the stop, the specific conduct of the suspect individual, the character of the offense under suspicion, and the unique perspective of a police officer trained and experienced in the detection of crime. Williams v. Commonwealth, 4 Va.App. 53, 67, 354 S.E.2d 79, 86-87 (1987).\\nHere, police observed defendant suddenly appear, displaying a firearm, late at night, in an area notorious for \\\"drug sales.\\\" Defendant's presence coincided with an ongoing police operation that involved several undercover officers in the sale of imitation illegal drugs, clearly an environment conducive to unlawful conduct and fraught with danger. With weapon in hand, defendant proceeded directly to an apartment building occupied both by police and residents. Confronted with such circumstances, police, experienced in the deadly mix of guns and narcotics and other violent crimes, reasonably suspected criminal activity which posed an immediate threat both to themselves and others, justifying a brief investigatory detention. In undertaking the encounter, Lecroy, the officer responsible for operational safety, was entitled to seize defendant and take control of the weapon, thereby neutralizing an imminent threat in a prudent and measured fashion. Had police ignored the full import of defendant's conduct, although perhaps facially lawful, and a tragedy resulted, the folly of such indifference would have been apparent.\\nWhen, during the course of the stop, defendant was identified as a person then involved in felonious activity, police properly effected his arrest and undertook the disputed search.\\nIII.\\nDefendant next contends that the evidence was insufficient to prove an intention to distribute the cocaine in his possession.\\nThe credibility of a witness, the weight accorded testimony, and the inferences drawn from proven facts are matters to be determined by the fact finder. See Long v. Commonwealth, 8 Va.App. 194, 199, 379 S.E.2d 473, 476 (1989). \\\"Circumstantial evidence may establish the elements of a crime, provided it excludes every reasonable hypothesis of innocence.\\\" Lovelace v. Commonwealth, 27 Va.App. 575, 586, 500 S.E.2d 267, 272 (1998). \\\"Whether a hypothesis of innocence is reasonable is a question of fact and a finding by the trial court is binding on appeal unless plainly wrong.\\\" Id. at 586, 500 S.E.2d at 273 (citation omitted).\\n\\\"[F]or a defendant to be convicted of possession of a controlled substance with the intent to distribute, the Commonwealth must prove that the defendant possessed the controlled substance contemporaneously with his intention to distribute that substance.\\\" Stanley v. Commonwealth, 12 Va.App. 867, 869, 407 S.E.2d 13, 15 (1991) (en banc). \\\"Because direct proof of intent [to distribute drugs] is often impossible, it must be shown by circumstantial evidence.\\\" Servis v. Commonwealth, 6 Va.App. 507, 524, 371 S.E.2d 156, 165 (1988). Such evidence may include the possession of large sums of money, pagers, and firearms, \\\"regularly recognized as factors indicating an intent to distribute.\\\" Glasco, 26 Va.App. at 775, 497 S.E.2d at 156:\\nOfficer Lecroy discovered 2.3 grams of cocaine, together with a pager, $935 \\\"broken down into nine $100 bundles,\\\" and a firearm on defendant's person, an aggregation of circumstances inconsistent with personal use of the drug. Moreover, defendant possessed no paraphernalia necessary to the consumption of cocaine. Although defendant testified that he possessed the drugs for personal use and attributed the cash to wages, the evidence proved otherwise, and \\\"[t]he trial court was entitled to disbelieve [defendant's] explanation and conclude that he lied to conceal his guilt.\\\" Dunbar v. Commonwealth, 29 Va.App. 387, 394, 512 S.E.2d 823, 827 (1999). Such evidence sufficiently established that defendant possessed the cocaine with the requisite intent to distribute.\\nAccordingly, we affirm the convictions.\\nAffirmed.\\n. Asked on cross-examination, \\\"why did you seize this gentleman,\\\" Lecroy responded,\\nWhen we have undercover officers out in the parking lot which are conducting sales of illegal drugs, imitation illegal drugs, my concern is for their safety along with anyone else that I may be working with if I \\u2014 and any other people who may be in the area.\\nWhen I heard that a man had a gun in the middle of a high drug area which \\u2014 which we wouldn't have been there if it wasn't a high drug area, then I'm going to take it from him and find out what his purpose is for being there.\\n. A similar search of the others revealed a second handgun. Id. at 7, 88 S.Ct. at 1872.\\n. The Court expressly noted that Terry's conduct, although \\\"innocent in itself,\\\" became suspicious when \\\"taken together\\\" with other circumstances and \\\"warranted further investigation.\\\" Id. at 22, 88 S.Ct. at 1880 (emphasis added).\\n. Recently, in Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), the Court once more reaffirmed Terry, approving an investigatory stop and related \\\"pat-down search\\\" of a citizen pur sued and detained after fleeing at the sight of police. Id. at 122-27, 120 S.Ct. at 675-77. The Court acknowledged \\\"that there are innocent reasons for flight from police,\\\" id. at 125, 120 S.Ct. at 677, but reasoned that \\\"[h]eadlong flight \\u2014 whenever it occurs- \\u2014 is the consummate act of evasion: it is not necessarily indicative of wrongdoing but . certainly suggestive of such.\\\" Id. at 124, 120 S.Ct. at 676. Thus, again, the reasonable suspicion requisite to a Terry stop arose from lawful conduct that assumed a suspicious appearance when viewed with \\\"commonsense judgments and inferences about human behavior.\\\" Id. Doubtless, such investigatory authority clearly imposes the \\\"risk that officers may stop innocent people,\\\" but \\\"Terry accepts the risk,\\\" permitting a \\\"minimal intrusion . allowing [police] to investigate further.\\\" Id. at 126, 120 S.Ct. at 677.\\n. \\\"The relationship between the distribution of controlled substances, . and the possession and use of dangerous weapons is now well recognized.\\\" Logan v. Commonwealth, 19 Va.App. 437, 445, 452 S.E.2d 364, 369 (1994) (en banc).\"}"

va/252510.json

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+"{\"id\": \"252510\", \"name\": \"Tyric Javon WILLIAMS v. COMMONWEALTH of Virginia\", \"name_abbreviation\": \"Williams v. Commonwealth\", \"decision_date\": \"2000-11-14\", \"docket_number\": \"Record No. 0792-99-2\", \"first_page\": \"725\", \"last_page\": \"728\", \"citations\": \"33 Va. App. 725\", \"volume\": \"33\", \"reporter\": \"Virginia Court of Appeals Courts\", \"court\": \"Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:07:48.898854+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Tyric Javon WILLIAMS v. COMMONWEALTH of Virginia.\", \"head_matter\": \"536 S.E.2d 916\\nTyric Javon WILLIAMS v. COMMONWEALTH of Virginia.\\nRecord No. 0792-99-2.\\nCourt of Appeals of Virginia, Richmond.\\nNov. 14, 2000.\\nAnthony G. Spencer (Morchower, Luxton & Whaley, on briefs), Richmond, for appellant.\\nMarla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General; Shelly R. James, Assistant Attorney General, on brief), for appellee.\\nPresent: BUMGARDNER, FRANK and HUMPHREYS, JJ.\", \"word_count\": \"832\", \"char_count\": \"5165\", \"text\": \"BUMGARDNER, Judge.\\nTyric Javon Williams, a juvenile, pleaded guilty to second degree murder. He contends the trial court lacked jurisdiction to convict him. Concluding the defendant waived the error he now asserts when he pled guilty, we affirm.\\nThe defendant was charged with committing murder in the first degree on April 29, 1998. The juvenile and domestic relations district court found probable cause on July 16, 1998, and a grand jury indicted on August 10, 1998. In February 1999, the Commonwealth recognized the trial court would not have jurisdiction under the ruling in Baker v. Commonwealth, 28 Va.App. 306, 313, 504 S.E.2d 394, 398 (1998), because the defendant's father had not been notified of the preliminary hearing.\\nWhile the Baker case was pending before the Supreme Court, the trial court remanded this case to the juvenile court. It gave the required notice, conducted a new preliminary hearing on February 26, 1999, and certified the case to the circuit court. The grand jury indicted on March 1, 1999, and a jury trial commenced on March 5, 1999. After the Commonwealth presented a part of its evidence, the defendant moved to change his plea. He unconditionally pled guilty to second degree murder pursuant to a plea agreement, agreed that he had thoroughly discussed the plea with his attorney, and acknowledged that he was waiving his right of appeal.\\nThe defendant contends a violation of Code \\u00a7 16.1-277.1 divested the trial court of jurisdiction to convict him. We conclude Code \\u00a7 16.1-277.1 was inapplicable. The defendant was 16 years old and charged with murder. Code \\u00a7 16.1-269.1 limited the juvenile court to conducting a preliminary hearing and certifying the charge to the grand jury. Once the juvenile court found probable cause and certified the charge, it lost jurisdiction.\\nCode \\u00a7 16.1-277.1 applies when the juvenile court has authority to adjudicate the matter or decide whether to transfer it for trial under adult procedures. The statute protects juveniles when held in secure detention, and its remedy is limited to release from detention. In this case, the defendant was transferred to jail after his first preliminary hearing and was no longer held in juvenile detention. Code \\u00a7 16.1-277.1 did not apply while he was in jail.\\nThe indictment cured any error of which the defendant now complains that arose in the juvenile proceedings. \\\"An indictment in the circuit court cures any error or defect in any proceeding held in the juvenile court except with respect to the juvenile's age.\\\" Code \\u00a7 16.1-269.1(E). Moore v. Commonwealth, 259 Va. 405, 410, 527 S.E.2d 415, 418 (2000).\\nFurther, the guilty plea waived any contention that the speedy trial provisions of Code \\u00a7 19.2-243 were violated. Protections granted by Code \\u00a7 19.2-243 may be waived. Stephens v. Commonwealth, 225 Va. 224, 230, 301 S.E.2d 22, 25 (1983); Brooks v. Peyton, 210 Va. 318, 321, 171 S.E.2d 243, 246 (1969); Butts v. Commonwealth, 145 Va. 800, 806, 133 S.E. 764, 766 (1926). A guilty plea waives all objections to non-jurisdictional defects that occurred before the plea. Terry v. Commonwealth, 30 Va.App. 192, 197, 516 S.E.2d 233, 235-36 (1999). (en banc) (violation of right to counsel claim waived by plea); Cardwell v. Commonwealth, 28 Va.App. 563, 566, 507 S.E.2d 625, 627 (1998) (double jeopardy claim barred by plea).\\nAccordingly, we affirm the conviction.\\nAffirmed.\\n. The Court affirmed the decision in Commonwealth v. Baker, 258 Va. 1, 516 S.E.2d 219 (1999).\\n. Code \\u00a7 16.1-277.1 provides, in relevant part:\\nA. When a child is held continuously in secure detention, he shall be released from confinement if there is no adjudicatory or transfer hearing conducted by the court for the matters upon which he was detained within twenty-one days from the date he was first detained.\\nB. If a child is not held in secure detention or is released from same after having been confined, an adjudicatory or transfer hearing on the matters charged in the petition or petitions issued against him shall be conducted within 120 days from the date the petition or petitions are filed.\\n(Emphasis added.)\\n. Code \\u00a7 16.1-269.1(B) provides, in part, that \\\"[t]he juvenile court shall conduct a preliminary hearing whenever a juvenile fourteen years of age or older is charged with murder____\\\" Code \\u00a7 16.1-269.1(D) provides that \\\"[ujpon a finding of probable cause pursuant to a preliminary hearing under subsection B ., the juvenile court shall certify the charge, . to the grand jury. Such certification shall divest the juvenile court of jurisdiction____''\\n. Juveniles are confined in \\\"secure detention\\\" \\\"designed to prevent escape and to restrict the movement and activities of children held in lawful custody.\\\" Code \\u00a7 16.1-228.\"}"

va/278728.json

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+"{\"id\": \"278728\", \"name\": \"Robert Charles HOLDEN v. Jena Taetz HOLDEN\", \"name_abbreviation\": \"Holden v. Holden\", \"decision_date\": \"1999-11-16\", \"docket_number\": \"Record No. 2614-98-3\", \"first_page\": \"24\", \"last_page\": \"30\", \"citations\": \"31 Va. App. 24\", \"volume\": \"31\", \"reporter\": \"Virginia Court of Appeals Courts\", \"court\": \"Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T17:57:34.184020+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert Charles HOLDEN v. Jena Taetz HOLDEN.\", \"head_matter\": \"520 S.E.2d 842\\nRobert Charles HOLDEN v. Jena Taetz HOLDEN.\\nRecord No. 2614-98-3.\\nCourt of Appeals of Virginia, Salem.\\nNov. 16, 1999.\\nCharles B. Phillips (Philips & Swanson, on brief), Salem, for appellant.\\nFrank K. Friedman (John P. Grove; Woods, Rogers & Hazlegrove, P.L.C., on brief), Roanoke, for appellee.\\nPresent: FITZPATRICK, C.J., and COLEMAN and BUMGARDNER, JJ.\", \"word_count\": \"1646\", \"char_count\": \"10119\", \"text\": \"FITZPATRICK, Chief Judge.\\nIn this domestic appeal, Robert Charles Holden (husband) contends the trial court erroneously classified a parcel of real estate purchased during the marriage. Husband argues that the property was \\\"hybrid property\\\" from which he was entitled to receive $17,000 as his separate property before the net value was divided between the parties. For the following reasons, we reverse the trial court's order and remand for the entry of an order consistent with this opinion.\\nI.\\nWe view the evidence in the light most favorable to wife, the prevailing party below. See Barker v. Barker, 27 Va.App. 519, 528, 500 S.E.2d 240, 244 (1998); Cook v. Cook, 18 Va.App. 726, 731, 446 S.E.2d 894, 896 (1994). So viewed, the evidence established that during the marriage the parties agreed to purchase a parcel of real estate in Bedford County. Husband sold approximately 300 comic books for $17,000 in order to raise funds necessary for the purchase of this property. Hus band testified that these comic books were his separate property acquired prior to the marriage. Additionally, he presented copies of two checks payable to him for the comic books, as well as the bank records of the parties' joint checking account showing $9,000 deposited February 4, 1992, and $8,000 deposited February 14,1992.\\nOn April 18, 1992, the parties withdrew approximately $21,114 from this joint checking account to buy the Bedford County property. Both parties testified that they refinanced the marital residence to provide additional funds for the purchase of the Bedford property and it is uncontested that at least $13,000 in marital funds were used to fund the $30,000 purchase.\\nThe trial court found that husband's contribution from the sale of comic books acquired prior to marriage was transmuted into marital property. The trial court stated:\\nWhile there has been a showing that $17,000 was derived from the sale of comic books that may have been acquired by [husband] prior to the marriage, the Court finds that under 20.107.3(d) (sic) that that property has been commingled by contributing it into the category of marital property both by depositing it in an account with joint marital funds, but then commingling it with other funds that were derived from other sources and ultimately the property which was jointly titled.\\nAccordingly, the trial court concluded that husband had not met his burden to retrace the $17,000 as his separate property-\\nII.\\nA decision regarding equitable distribution rests within the sound discretion of the trial court and will not be disturbed unless it is plainly wrong or without evidence to support it. See McDavid v. McDavid, 19 Va.App. 406, 407-08, 451 S.E.2d 713, 715 (1994) (citing Srinivasan v. Srinivasan, 10 Va.App. 728, 732, 396 S.E.2d 675, 678 (1990)). \\\"Unless it appears from the record that the trial judge has not considered or has misapplied one of the statutory mandates, this Court will not reverse on appeal.\\\" Ellington v. Ellington, 8 Va.App. 48, 56, 378 S.E.2d 626, 630 (1989).\\nAt the time of the equitable distribution hearing, the parties jointly owned a parcel of real estate with an agreed value of $30,000. Husband claimed $17,000 of that $30,000 as his separate, retraceable property.\\nPursuant to the provisions of Code \\u00a7 20-107.3(A)(3), property may be classified as part marital and part separate. Under subsection (e), \\\"when marital property and separate property are commingled into newly acquired property resulting in the loss of identity of the contributing properties, the commingled property shall be deemed transmuted to marital property,\\\" unless the contributed property is retraceable and not a gift. Code \\u00a7 20-107.3(A)(3)(e). We have explained the requirements of tracing under that section:\\nIn order to trace the separate portion of hybrid property, a party must prove that the claimed separate portion is identifiably derived from a separate asset. This process involves two steps: a party must (1) establish the identity of a portion of hybrid property and (2) directly trace that portion to a separate asset.\\nRahbaran v. Rahbaran, 26 Va.App. 195, 208, 494 S.E.2d 135, 141 (1997) (citing Code \\u00a7 20-107.3(A)(3)(d)-(f)). \\\"[T]he party claiming a separate interest in transmuted property bears the burden of proving retraceability.\\\" von Raab v. von Raab, 26 Va.App. 239, 248, 494 S.E.2d 156, 160 (1997).\\nHere, it is uncontroverted that husband deposited $17,-000 of the proceeds from the sale of his separate property, the comic books, in the parties' joint checking account. He concedes that these proceeds were \\\"commingled\\\" with marital funds; the $17,000 was deposited into the joint account two months before the funds were paid out for the land purchase. Husband argues that consistent with the rule in Rahbaran, he sufficiently established \\\"the identity of a portion of hybrid property\\\" (i e., $17,000 from the sale of his comic books) and \\\"directly traee[d] that portion to a separate asset.\\\" Rahbaran, 26 Va.App. at 207, 494 S.E.2d at 141. We agree and hold that husband adequately retraced his contribution of discrete, identifiable funds that were in the account and which were used to purchase the Bedford County property.\\nWe have previously held that where separate property is used for a down payment on property that becomes marital property, the trial court does not abuse its discretion in making an award that restores the down payment to the contributing spouse. See, e.g., Rowe v. Rowe, 24 Va.App. 123, 136, 480 S.E.2d 760, 766 (1997) (holding that husband's evidence that he had invested $82,000 into a new home was sufficient to retrace the property claimed as separate by husband); Pommerenke v. Pommerenke, 7 Va.App. 241, 247-50, 372 S.E.2d 630, 634 (1988) (holding that under the prior Code \\u00a7 20-107.3(A)(3) the \\\"court does not abuse its discretion by making an award that restores the down payment to the contributing spouse, if the court finds that equity dictates such a result\\\").\\nAdditionally, husband was not required to have segregated the $17,000 from all other marital funds in order to claim a separate interest in that amount. See Rahbaran, 26 Va.App. at 207, 494 S.E.2d at 141 (\\\"[TJracing of the separate portion of hybrid property does not require the segregation of the separate portion.\\\"). Because husband commingled separate funds and marital funds in a jointly-owned bank account, which was then used for the purchase of marital property, he was only required to trace those separate funds to the account and to prove that those discrete funds could be identified as being in the account. See id. at 209, 494 S.E.2d at 141-42 (\\\"[S]eparate property does not become untraceable merely because it is mixed with marital property in the same asset. As long as the respective marital and separate contribution to the new asset can be identified, the court can compute the ratio and trace both interests.\\\") (emphasis added) (citing Brett R. Turner, Equitable Distribution of Property 266 n.591 (1994)).\\nThe trial court's conclusion that husband failed to retrace $17,000 in separate property commingled with other marital funds is not supported by the evidence. To the contrary, the record established that $17,000 was an identifiable portion of the value of the hybrid Bedford County property and husband directly traced that portion to a separate asset (ie., proceeds derived from the sale of the comic books). Husband introduced into evidence copies of two checks payable to him for the comic books, as well as the bank records of the parties' joint checking account showing $9,000 and $8,000 deposited on February 4, 1992, and February 14, 1992, respectively. While other deposits and withdrawals occurred within this time period, it is uncontested that the $17,000 deposited to the account from husband's separate property was to be part of the down payment on the Bedford property. Absent the $17,000 deposited into the joint account by husband, the parties would have had insufficient funds to make the withdrawal of $21,114 on April 18, 1992 for the purchase price of the land. We conclude that the $17,000 contributed to acquire the Bedford property was directly traced to the sale of husband's separate property, the comic books, and should have been allocated to husband. Accordingly, we reverse the equitable distribution award and remand for an order consistent with this opinion.\\nReversed and remanded.\\n. Husband also appealed the trial court's award of spousal support. However, he withdrew that assignment of error and spousal support is no longer a subject of this appeal.\\n. Husband also presented evidence that he sold a 1985 track for $4,000 or $5,000, which was applied to the purchase price of the real estate. In this appeal, however, husband does not claim a separate interest in that amount.\\n. We note that wife never contested husband's claim that the comic books sold for $17,000 were his separate property. In addition to husband's testimony that the comic books were acquired prior to the parties' marriage, James Payette, the dealer who purchased the collectibles, testified that they were published in the 1940s and 1950s, which corroborated husband's position that the books were separate property. Therefore, the only question before us is whether husband carried his burden of retraceability under Code \\u00a7 20-107.3(A)(3).\\n. Wife argues for the first time on appeal that husband's contribution of $17,000 to the down payment of the Bedford property constituted a gift, which would result in the loss of identity of the separate property under Code \\u00a7 20-107.2(A)(3)(d)-(e). However, no evidence was presented that husband's contribution was intended as a gift and the trial court never addressed this issue.\"}"

va/337968.json

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+"{\"id\": \"337968\", \"name\": \"John Miller v. Marion Armentrout, and Others\", \"name_abbreviation\": \"Miller v. Armentrout\", \"decision_date\": \"1954-06-21\", \"docket_number\": \"Record No. 4189\", \"first_page\": \"32\", \"last_page\": \"38\", \"citations\": \"196 Va. 32\", \"volume\": \"196\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:20:06.045810+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John Miller v. Marion Armentrout, and Others.\", \"head_matter\": \"Richmond\\nJohn Miller v. Marion Armentrout, and Others.\\nJune 21, 1954.\\nRecord No. 4189.\\nPresent, All the Justices.\\nThe opinion states the case.\\nHale Collins and John T. Delaney, for the appellant.\\nC. S. Minter, for the appellees.\", \"word_count\": \"1942\", \"char_count\": \"10978\", \"text\": \"Buchanan, J.,\\ndelivered the opinion of the court.\\nThis is a suit in chancery for the partition of a tract of 143 acres of land alleged to have been owned by Fielding P. Sizer at the time of his death in 1895. The bill was filed in 1948 by Marion Armentrout and H. F. Wright. It averred that by his will, copy of which was exhibited with the bill, Sizer devised the land, after the life estate of his wife, to his three daughters, namely, Diana J. Arritt, Martha A. Whiting and Mary M. Lowry, and to his granddaughter, Emma Miller, and that \\\"by successive conveyances\\\" one-half of the one-fourth interest of Diana J. Arritt vested in complainants and the other one-half thereof in Floyd J. Arritt, her son.\\n^ The bill further alleged that the heirs of Mary M. Lowry, without naming any of them, conveyed their one-fourth interest in said land to John D. Bowen, who died after the death of his wife leaving three children who inherited this one-fourth interest, one of whom was Ellen Bowen Miller, the wife of John Miller, the appellant. It was alleged that Ellen Bowen Miller and John Miller lived on the property for some time and then separated, but John Miller remained thereon and now claimed the 143-acre tract by adverse possession; that his possession was not in fact adverse but had been taken and held in the right of his wife. The bill averred that the land could not be divided in kind and prayed for a sale thereof and division of the proceeds.\\nTwo amended bills were filed, the first alleging that in view of the ambiguity of the Sizer will it was possible that the devisees therein took only a life estate with remainder to the heirs of Sizer,, who were made parties defendant. The second amended bill, after reciting that in the first two inadvertently no relief had been asked against John Miller, alleged that Miller's claim constituted a cloud on the title of the real owners; that Miller did not own and never had owned any interest in the land and prayed that his claim be removed as a cloud on the title and that Miller be removed from the property.\\nMiller filed his answer to the bill as amended denying that Sizer or any of the parties to the cause claiming under him had any title to the land, and alleging that in March, 1931, he had taken possession of the land, which was then open and unclaimed, had fenced and improved it, paid the taxes on it and had ever since held it adversely to all claimants and now claimed the fee simple title thereto by adverse possession.\\nDepositions were taken by both sides, those for the complainants attempting to identify the Sizer heirs and to show that Miller's possession of the property was not adverse, and those for Miller attempting to prove that he had complete title by adverse possession.\\nBy the decree appealed from the court held that Miller had failed to acquire title to the land by adverse possession, and that the fee simple title thereto was owned in undivided shares under the will of Fielding P. Sizer, as follows: One-eighth by complainants; one-fourth by John D. Bowen's three children; one-eighth by Floyd J. Arritt; one-fourth by Martha A. Whiting, if living; and one-fourth by Emma Miller, if living. It was decreed that the land was not divisible in kind and it was ordered sold.\\nMiller made several assignments of error to this decree but we find it necessary to consider only the charge that the trial court erred in overruling his motion to dismiss the complainants' bill after the proof was taken. This motion should have been sustained.\\nThere was no proof of complainants' title adequate to give equity jurisdiction of their suit. Code \\u00a7 8-690 provides that tenants in common, joint tenants, and coparceners shall be compellable to make partition, and provides that equity shall have jurisdiction in such cases. The complainants' bill merely alleged that \\\"by successive conveyances, the title to the one-fourth (%) interest of Diana J. Arritt vested in Marion Armentrout and H. F. Wright as to an undivided one-eighth (%).\\\" No copy of any such conveyance was either filed with the bill or introduced in evidence; nor was it attempted to prove that any such conveyance existed. The only evidence touching upon the complainants' claim is the following in the deposition of Armentrout (the other complainant did not testify): On direct examination: \\\"Q. I believe you claim you own an interest in this property? A. Yes, sir. Q. What interest do you claim? A. Suppose to own the Dianah Arritt interest. Q. In other words you and Mr. F. H. Wright jointly own an undivided one-eighth interest? A. Yes, sir. Q. I don't recall whether I have asked you or not. Did you know Floyd J. Arritt? A. No, sir, I did not. Q. Then you and Mr. Wright own the interest that Dianah Arritt owned in the Fielding P. Sizer land? A. Yes, sir.\\\" On cross-examination: \\\"Q. You are claiming here now the interest, whatever interest, might come down through inheritance under the will of Fielding Sizer, is that right? A. Yes, sir.\\\"\\nMiller's answer denied that the complainants have or have ever had any title to the tract of land now in Miller's possession. This denial put the complainants on proof as to their title and their consequent right to invoke the aid of equity to make partition. Elkins v. Hare, 105 W. Va. 307, 142 S. E. 439; Ashworth v. Cole, 180 Va. 108, 21 S. E. (2d) 778. \\\"Undoubtedly the complainant in a partition suit must aver and prove that he occupies such a relationship to the defendant as entitles him to invoke the equity jurisdiction.\\\" Goodman v. Goodman, 124 Va. 579, 582, 98 S. E. 625, 626. An estate in land is conveyed by deed or will. Code \\u00a7 55-2. The question having thus been put in issue, the title of the complainants and their right to partition was not established merely by the testimony of one of the complainants that he and his co-complainant claimed to own or were supposed to own an undivided one-eighth interest in the land. Peatross v. Gray, 181 Va. 847, 27 S. E. (2d) 203.\\nThe complainants' bill should have been dismissed for the further .reason that the proof disclosed a question of title not properly cognizable by equity in a partition suit.\\nBailey v. Johnson, 118 Va. 505, 88 S. E. 62, was a suit for partition in which, after a sale of the property and distribution of the proceeds, persons not original parties filed a petition claiming the land, with the result, as stated in the opinion, \\\"that if the original parties in whose favor the sale for partition was made had any interest at all in the land, they were the sole owners thereof, while per contra, if the parties who filed the petition in question have any interest at all in the land, they are the sole owners.\\\" It was held that \\\"The circuit court was without jurisdiction to determine in this cause the question of title between these two wholly distinct and hostile claims.\\\" 118 Va. at pp. 507-8, 88 S. E. at pp. 63-4.\\nThat case was decided in 1916 when the statute in effect was \\u00a7 2562 of Pollard's Code, 1904, permitting courts of equity in partition suits to \\\"take cognizance of all questions of law affecting the legal title that may arise in any proceedings, as well between tenants in common, joint tenants, and coparceners as others.\\\" In the 1919 revision, Code 1919, \\u00a7 5279, the words \\\"as others\\\" were omitted and the statute made to read as it now does in the 1950 Code, \\u00a7 8-690, supra, giving to the equity courts jurisdiction of all questions of law affecting the legal title arising \\\"between such tenants in common, joint tenants, coparceners and lien creditors.\\\" In the Revisor's Note to \\u00a7 5279 it was explained that the change was made because of the suggestion \\\"that the former language might in some cases deprive third persons of their constitutional right of trial by jury.\\\"\\nBy the terms of the present statute the power of courts of equity to adjudicate questions of law affecting the legal title in partition suits is confined to the conflicting claims of parties who may compel or be compelled to make partition. See Jones v. Comer, 123 W. Va. 129, 13 S. E. (2d) 578, 583; Minor on Real Property, 2d ed., Ribble, Vol. II, \\u00a7 892.\\nIn Goodman v. Goodman, supra, the defendant filed an answer claiming to be the owner of the fee and in possession of the land sought to be partitioned and denying that the plaintiff had any title. The court thereupon dismissed the bill, but this court reversed and held that where a bill states a good case for partition a defendant cannot defeat jurisdiction merely by denying the complainant's allegations and asserting a hostile claim to the whole property; but the court added: \\\"It may be that when the case is fully developed upon the evidence the defendant can show that there has never been any community of interest at any time between him and the complainant; but upon the record as it now stands the case is clearly one for equity jurisdiction.\\\" 124 Va. at p. 584, 98 S. E. at p. 627.\\nHere it does not appear from the evidence that the questions of title are between tenants in common, joint tenants or coparceners. Miller claims complete title to the land, acquired not through any community of interest with any party to the suit who claims under Fielding P. Sizer, or any predecessor of his, but by adverse possession, entirely hostile to and independent of the title under which all the other parties to the suit claim an interest in the land. Nor does complainants' evidence in any way show that Miller took through or under Sizer. \\\"An independent hostile claim going to the whole property involved, and denying in toto and ab initio the title of the parties claiming the joint ownership of the land, cannot be set up and adjudicated in a partition suit brought by the latter.\\\" Bailey v. Johnson, supra, 118 Va. at p. 509, 88 S. E. at p. 64.\\nThe decree appealed from is reversed and this suit is dismissed without prejudice to the right any party may have to proceed at law or under \\u00a7 55-153 of the Code. See Duty v. Honaker Lumber Co., 131 Va. 31, 108 S. E. 863.\\nReversed and dismissed.\\nBy a blanket order entered October 22, 1951, complainants' suit was dismissed under Code \\u00a7 8-154 permitting that to be done when there has been no order or proceeding, except a continuance, for more than two years. On November 24, 1952, the date of the final decree, complainants moved to reinstate the cause, claiming that the dismissal was inadvertent and without notice to them. Miller objected because the motion for reinstatement was not made within the time prescribed by the statute. The court overruled the objection and reinstated the cause on the docket. That ruling is the subject of one of the assignments of error. As stated, we rest this decision on another ground and do not decide that question.\"}"

va/3699956.json

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+"{\"id\": \"3699956\", \"name\": \"Kevin L. HOLLOWAY, Appellant, v. COMMONWEALTH of Virginia, Appellee\", \"name_abbreviation\": \"Holloway v. Commonwealth\", \"decision_date\": \"2010-02-23\", \"docket_number\": \"Record No. 0828-08-1\", \"first_page\": \"132\", \"last_page\": \"132\", \"citations\": \"56 Va. App. 132\", \"volume\": \"56\", \"reporter\": \"Virginia Court of Appeals Courts\", \"court\": \"Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T18:44:13.981247+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kevin L. HOLLOWAY, Appellant, v. COMMONWEALTH of Virginia, Appellee.\", \"head_matter\": \"692 S.E.2d 248\\nKevin L. HOLLOWAY, Appellant, v. COMMONWEALTH of Virginia, Appellee.\\nRecord No. 0828-08-1.\\nCourt of Appeals of Virginia.\\nFeb. 23, 2010.\\nBefore ELDER and ALSTON, JJ., and CLEMENTS, Senior Judge.\", \"word_count\": \"119\", \"char_count\": \"727\", \"text\": \"Upon a Petition for Rehearing\\nOn February 3, 2010 came appellee, by the Attorney General, and filed a petition praying that the Court set aside the judgment rendered herein on January 26, 2010, and grant a rehearing thereof.\\nOn consideration whereof, the petition for rehearing is granted, the mandate entered herein on January 26, 2010 is stayed pending the decision of the Court, and the appeal is reinstated on the docket of this Court.\\nThe appellant shall file an answering brief in compliance with Rule 5A:35(c).\"}"

va/3777088.json

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+"{\"id\": \"3777088\", \"name\": \"Walter H. Horner v. Virginia Department of Mental Health, Mental Retardation, and Substance Abuse Services, Western State Hospital\", \"name_abbreviation\": \"Horner v. Virginia Department of Mental Health, Mental Retardation, & Substance Abuse Services\", \"decision_date\": \"2002-07-11\", \"docket_number\": \"\", \"first_page\": \"250\", \"last_page\": \"255\", \"citations\": \"59 Va. Cir. 250\", \"volume\": \"59\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Virginia Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T02:16:01.399127+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Walter H. Horner v. Virginia Department of Mental Health, Mental Retardation, and Substance Abuse Services, Western State Hospital\", \"head_matter\": \"CIRCUIT COURT OF THE CITY OF STAUNTON\\nWalter H. Horner v. Virginia Department of Mental Health, Mental Retardation, and Substance Abuse Services, Western State Hospital\\nJuly 11, 2002\", \"word_count\": \"2135\", \"char_count\": \"13778\", \"text\": \"By Judge Humes J. Franklin, Jr.\\nThe Court hereinafter sets forth its opinion with respect to the appeal of Walter H. Homer from the decisions of the Virginia Department of Employment Dispute Resolution (EDR) hearing officer in grievances designated \\\"No. 5248\\\" and \\\"No. 5249.\\\"\\nAppellant Homer was employed as a physician at Western State Hospital by the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services. During his employment, Homer received three \\\"Group II\\\" disciplinary notices and was dismissed from his job. Dismissal is warranted on the accumulation of two such notices.\\nHomer contested the notices under Virginia's statutory grievance procedure. See \\u00a7 2.1-116 et seq. of the Code of Virginia (2000) (currently \\u00a7 2.2-3000 et seq. Va. Code). The grievance statute provides for up to three levels of management review. \\u00a7 2.1-116.05(B), Va. Code (2000). At the first level of management review, Homer's immediate supervisor, the so-called \\\"First-step Respondent,\\\" stated, in separate decisions, that he supported reversal of both notices at issue in this appeal and he concluded that Horner should be reinstated with back pay and benefits. However, the second-level and third-level management respondents disagreed with, and overturned, the decisions of the first-level respondent.\\nThe matters went before an EDR hearing officer. One notice was dismissed and, on August 20,2001, in separate decisions, the hearing officer affirmed the notice at issue in \\\"Grievance No. 5248\\\" (failure to follow a supervisor's instructions) and the notice at issue in \\\"Grievance No. 5249\\\" (failure to comply with written policy).\\nHomer then sought, and obtained, reconsideration by the hearing officer, but both decisions were reaffirmed. Next, Horner sought review of the reconsidered decisions by EDR and by the Department of Human Resource Management (DHRM). Ultimately, both EDR and DHRM upheld the hearing officer's decisions and Horner appealed to this Court.\\nAppellant's Bases for Appeal\\nHomer asserts four bases in his appeal. First, according to Homer, the Virginia statutory grievance procedure requires the remedy provided by Appellant's first-level respondent be given effect. Second, the government failed to abide by the statutory requirement that \\\"all time limitations prescribed in the grievance procedure... shall be reasonable, specific, and equally applicable to the agency and the employee\\\" as specified by \\u00a7 2.1 -116.05(G), Va Code (2000), and, moreover, failed to respond to grievant within the time frame specified under the agency adopted Grievance Procedure Manual. Third, the hearing officer, in Grievance No. 5249, mischaracterized an e-mail message sent by Appellant. Fourth, the decision ofthe hearing officer, in Grievance No. 5248, was \\\"plainly wrong and without evidence to support it.\\\" Appellant's \\\"Memorandum in Support of Appeal,\\\" page 7.\\nPrior Action of this Court\\nIn March 2002, the Court overruled Homer's motion to obtain a typed transcript of the record of proceedings before the hearing officer.\\nIn May 2002, the Court overruled the Attorney General's motion to dismiss, which maintained that Horner had failed to comply with statutory deadlines for prosecuting the matter and that decidittg the case on briefs was improper. The Court found that a consent order signed by both parties established that the matter would be resolved through briefs, rather than by a hearing. While the Attorney General has preserved his objection to the Court's ruling on the motion to dismiss, it should be noted that, in addition to the consent order, the Attorney General sent a letter to this Court on February 8, 2002, stating, in part, \\\"Please advise if the Court prefers briefing or oral argument.\\\"\\nCircuit Court Review on Appeal\\nFollowing a hearing officer's final decision in a grievance, \\\"a party may appeal [to Circuit Court] on the grounds that the determination is contradictory to law____\\\" \\u00a7 2.1-116.07:1(B), Va. Code (2000). \\\"The [Circuit] court may affirm the decision or may reverse or modify the decision.\\\" Id.\\nHorner's First Contention: \\\"Remedy,\\\" not \\\"Recommendation\\\"\\nThe Virginia General Assembly has established a statutory framework for a state employee grievance procedure. See \\u00a7 2.1-116.05 et seq., Va. Code (2000). Under the statute, the Virginia Department of Employment Dispute Resolution (EDR) is required to develop a grievance procedure that \\\"includes not more than three successively higher grievance resolution steps and a formal hearing....\\\" \\u00a7 2.1-116.05(B), Va. Code (2000). The statute also specifies that, on receipt of a formal grievance complaint, management shall review and respond to the merits of the case and that \\\"each level of management review shall have the authority to provide the employee with a remedy.\\\" \\u00a7 2.1-116.05(E), Va. Code (2000).\\nIn administratively implementing the statutory grievance procedure, EDR adopted a \\\"Grievance Procedure Manual\\\" (GPM). In the GPM, consistent with \\u00a7 2.1-116.05(B), Va. Code (2000), EDR provided for three levels of management review for the purpose of resolving an employee's grievance short of elevating the matter to a formal hearing. GPM, \\u00a7 2.1 and \\u00a7 3.1 to 3.3. hi the GPM scheme, the first of three potential \\\"Management Resolution Steps\\\" is conducted by the \\\"First-step Respondent.\\\" GPM, \\u00a7 3.1. The \\\"First-step Respondenf ' is an employee's immediate supervisor. GPM, \\u00a7 9. Appellant Horner went through the first resolution step for both matters that later formed the bases for Grievance Nos. 5248 and 5249. As noted above, Homer's supervisor, Michael T. Clayton, M.D., was the \\\"First-step Respondent.\\\" On June 11, 2001, Dr. Clayton issued separate written decisions regarding the disciplinary notices. In both decisions, Dr. Clayton reviewed the cases and formally concluded both documents in the same manner, stating: \\\"I support the complete reversal of Disciplinary Action, [Homer's] reinstatement with back pay, and restoration of all his fringe benefits. I also believe he merits an apology.\\\" See Exhibits 32 and 33, Appellant's \\\"Memorandum in Support of Appeal\\\" (containing copies of Dr. Clayton's decisions).\\nHowever, in the subsequent two levels of management review, management disagreed with Dr. Clayton's decisions in both matters. The matters then went before an EDR hearing officer as Grievance Nos. 5248 and 5249 and, following formal hearings, the hearing officer sided with the determination made by management in the second and third resolution steps to uphold the disciplinary notices. See Decision of (EDR) Hearing Officer In re Grievance No. 5248, August 20,2001; Decision of (EDR) Hearing Officer In re Grievance No. 5249, August 20, 2001.\\nIn both decisions, the hearing officer stated: \\\"[A] prior ruling by the Director of the Department of Employment Dispute Resolution (EDR) has established that upper level management has the discretion to review the immediate supervisor's decision and to make a determination to award the requested relief or uphold the disciplinary action.\\\" Decision of (EDR) Hearing Officer In re Grievance No. 5248, p. 7, and Decision of (EDR) Hearing Officer In re Grievance No. 5249, p. 5 (with both decisions of the hearing officer citing \\\"Compliance Ruling of Director, In re DMHMRSAS, March 23,2001 (Ruling # 2001QQ).\\\").\\nThe Court notes that in the ruling relied on by the hearing officer, Compliance Ruling of [EDR] Director, In re DMHMRSAS, March 23,2001, Ruling # 2001QQ, the Director characterized the decision of the immediate supervisor, the First-step Respondent in the underlying case, as a \\\"recommendation\\\" that was not accepted by upper level management and the Director also, without citing any authority, asserted that \\\"the grievance statutes do not provide management step respondents any more authority to grant a 'remedy' than those respondents would otherwise possess within the management hierarchy.\\\"\\nHomer contends that the statutory grievance procedure, specifically \\u00a7 2.1-116.05(E), Va. Code (2000), requires that the state must give effect to Dr. Clayton's decisions. This is so, Homer maintains, because the statute provides that, at each of the three potential management resolution steps, the management respondent, including the first level respondent, has \\\"the authority to provide the employee with a remedy.\\\" \\u00a7 2.1-116.05(E), Va. Code (2000). However, Homer argues that the government's action, here, demonstrates that the government views the first-level respondent's decision as a \\\"recommendation\\\" that may be accepted or ignored by higher-level management, rather than, as the statutes states, a \\\"remedy.\\\" See \\u00a7 2.1-116.05(E), Va. Code (2000).\\nThe Attorney General, in this appeal, shares the view of the hearing officer in maintaining that higher-level management may, on its own initiative, overrule a \\\"First-level Respondent.\\\" Appellee's \\\"Memorandum in Opposition to Appellant's Memorandum in Support of Appeal,\\\" page 4. This Court's decision is guided by well-settled principles. \\\"Under basic rules of statutory construction,\\\" a court must examine the language of the Code section at issue \\\"in its entirety and determine the intent of the General Assembly from the words contained in the statute, unless a literal construction of the statute would yield an absurd result. When the language of a statute is plain and unambiguous, we are bound by the plain meaning of that language. Thus, when the General Assembly has used words of a plain and definite import, courts cannot place on them a construction that amounts to holding that the General Assembly meant something other than that which it actually expressed.\\\" Vaughn, Inc. v. Beck, 262 Va. 673, 677, 554 S.E.2d 88 (2001) (citations omitted).\\nIn the instant case, the General Assembly explicitly employed the term \\\"remedy\\\" in the statute providing for a state employee grievance procedure. See \\u00a7 2.1-116.05(E), Va. Code (2000). \\\"Remedy\\\" is specific legal term of definite import, and for this Court to construe \\\"remedy\\\" to mean merely \\\"recommendation\\\" would be to violate the prohibition of Vaughn against construing a statute so as to \\\"hold[] that the General Assembly meant something other than that which it actually expressed.\\\" Vaughn, 262 Va. at 677.\\nThe Court is not unmindful of the Attorney General's argument that allowing an immediate supervisor to make a final, conclusive, determination would mean that \\\"a lower-level employee would have more authority on disciplinary matters than an agency director,\\\" and that such a stance \\\"is legally and logically untenable,\\\" as well as \\\"unworkable in practice and would literally turn an agency chain of command upside-down.\\\" Appellee's \\\"Memorandum in Opposition to Appellant's Memorandum in Support of Appeal,\\\" page 5.\\nHowever, the Court notes that nothing in the statute requires EDR to develop and adopt an employee grievance procedure that endows an immediate supervisor with such authority. The statute simply provides for up to three levels of management review, each with the authority to provide a remedy, but the statute does not specify that an immediate supervisor be involved in any of the formal grievance procedure levels.\\nYet EDR, of its own accord, adopted a grievance procedure that designated the position of immediate supervisor as the management respondent in the first of three potential resolution steps. See GPM, \\u00a7 9. Having placed an immediate supervisor in the position of \\\"First-step Respondent,\\\" a position that, by statute, has the authority to provide a grievant with a remedy, EDR cannot now be heard to complain that it is illogical to give an immediate supervisor such authority.\\nThe Court also notes that, following a \\\"First-step Respondent's\\\" determination, GPM \\u00a7 3.1 expressly provides an avenue for a grievant to continue to the next step in the management resolution process. Similarly, following a second step determination, a grievant may choose to continue to the third step under GPM \\u00a7 3.2. However, neither section of the GPM provides management such an avenue to contest the outcome a decision.\\nThe Court, then, finds that the decisions of the hearing officer in both Grievance Nos. 5248 and 5249 were contradictory to law. See \\u00a7 2.1-116.07:1(B), Va. Code (2000). As such, the Court may reverse or modify the decisions. Id. The Court reverses the hearing officer's decisions in both grievances and reinstates the remedies of the \\\"First-step Respondent,\\\" Dr. Clayton, to wit complete reversal of the disciplinary actions which formed the bases for Grievance Nos. 5248 and 5249, reinstatement of Dr. Homer with, from the date of his termination, back pay, and restoration of all his fringe benefits.\\nHaving so determined, the Court refrains from addressing Homer's three other asserted bases for challenging the decisions of the hearing officer in Grievance Nos. 5348 and 5249.\\nEDR \\\"Grievance Procedure Manual\\\" (version 07/01/2001) online at http://www.edr.state.va.us/gpmtoc.htm (viewed May 14, 2002, and July 1,2002).\\n\\\"[A] remedy is that part of the judicial process which permits actualization of substantive private law rights when the rules of practice are properly invoked.\\\" John L. Costello, Virginia Remedies, \\u00a7 1-1 (a) (2d ed. 2001). \\\"Traditionally, one thinks of a remedy as a procedural device at law or equity for administering justice to a person injured by the disfavored act of another.... Remedies come into being as vested individual rights only upon the occurrence of a defined wrong and entitle the injured person to a final readjustment of the distribution of assets or of patterns of conduct.\\\" Id., \\u00a7 1-1.\"}"

va/3781910.json

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+"{\"id\": \"3781910\", \"name\": \"Louis Scott Hudson v. Director of the Department of Corrections\", \"name_abbreviation\": \"Hudson v. Director of the Department of Corrections\", \"decision_date\": \"2005-05-16\", \"docket_number\": \"Case No. (Law) 04-4838\", \"first_page\": \"319\", \"last_page\": \"340\", \"citations\": \"67 Va. Cir. 319\", \"volume\": \"67\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Clarke County Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T17:26:06.495214+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Louis Scott Hudson v. Director of the Department of Corrections\", \"head_matter\": \"CIRCUIT COURT OF CLARKE COUNTY\\nLouis Scott Hudson v. Director of the Department of Corrections\\nMay 16, 2005\\nCase No. (Law) 04-4838\", \"word_count\": \"8840\", \"char_count\": \"53115\", \"text\": \"By Judge John e. Wetsel, Jr.\\nThis case came before the Court on May 12,2005, for consideration of the Petition for Writ of Habeas Corpus challenging the validity of the Petitioner's conviction based upon ineffective assistance of counsel and procedural defects in the appeal of his case arising from counsel's failure to assign cross-error on the Commonwealth's appeal from the Court of Appeals to the Supreme Court. After careful consideration of the record, the Court has made the following decision to dismiss the petition.\\nI. Statement of Material Facts\\nThe following facts are established by the record in this case.\\nA. Material Proceedings\\nThe petitioner is in custody pursuant to final judgment of this Court entered on March 27,2001. A jury tried Hudson on January 11-13,2001, on charges of murder and use of a firearm in the commission of murder. Following the defense motion to strike the Commonwealth's evidence, the Court struck the-first-degree murder count and the charge proceeded as second-degree murder. The Court instructed the juiy on second-degree murder and voluntary manslaughter. The jury convicted Hudson of second-degree murder and use of a firearm in the commission of murder and fixed his punishment at seventeen years in prison for the murder and three years for the firearm charge. The Court sentenced Hudson in accordance with the jury's verdict, but suspended five years of the murder sentence. (Case Nos. 00-4371 through 00-4372.) (Exhibit 1, copy of final order.) The petitioner was represented in this Court by Timothy S. Coyne, Esquire.\\nThe petitioner appealed his convictions to the Court of Appeals of Virginia. The Court of Appeals granted Hudson's petition for appeal. (Record No. 0917-01-4.) By an unpublished opinion dated July 16, 2002, that Court reversed and dismissed Hudson's convictions, holding that the evidence was insufficient to sustain the convictions, so it did not address the evidentiary issues-it also had granted. The Court of Appeals noted, \\\"Because we find the evidence insufficient to sustain Hudson's second-degree murder conviction, we do not address these additional issues.\\\" (Exhibit 2, at p. 2, n. 1.)\\nThe Commonwealth filed a petition for appeal in the Supreme Court of Virginia assigning as error (1) that the Court of Appeals failed to apply the appropriate appellate standard of review and instead held that the evidence was insufficient to prove Hudson committed murder beyond a reasonable doubt, and (2) that the Court of Appeals erred by holding that the Commonwealth failed to exclude the reasonable hypothesis of innocence that the victim shot herself accidentally or as an act of suicide.\\nThe Supreme Court granted the appeal and in a unanimous opinion issued April 17, 2003, reversed the judgment of the Court of Appeals and reinstated the judgment of the Trial Court. Commonwealth v. Hudson, 265 Va. 505, 578 S.E.2d 781 (2003).\\nHudson filed a petition for rehearing in the Supreme Court of Virginia limited to the issue that the Supreme Court erred in failing to remand the case to the Court of Appeals for consideration of the issues that the Court of Appeals had granted but not decided in its opinion. (Exhibit 4.) The Court denied the petition for rehearing. (Exhibit 5.)\\nHudson by counsel subsequently filed a petition for certiorari to the United State Supreme Court, alleging that (1) the evidence was insufficient to sustain the convictions and that (2) the Supreme Court of Virginia erred in failing to remand the case to the Court of Appeals of Virginia for determination of the three issues that it had accepted for review but not addressed. By order of October 20, 2003, the Supreme Court of the United States denied the petition for certiorari.\\nIn his habeas petition, Hudson raises the following two claims.\\n1. Ineffective Assistance of Counsel\\nThe petitioner was denied his right to appeal and his right to effective assistance of counsel on appeal. Due to attorney error and through no fault of his own, the petitioner was denied his constitutional right to have all of his appellate issues, save one, decided by the Court of Appeals of Virginia and the Supreme Court of Virginia. Thus, he is entitled to a delayed appeal to the Court of Appeals.\\n2. Due Process/Fundamental Fairness Violation\\nThe petitioner was denied his due process rights and his right to fundamental fairness under the United States and Virginia Constitutions when he was denied his constitutional right to have all of his appellate issues, save one, decided by the Court of Appeals of Virginia and the Supreme Court of Virginia.\\nB. Facts Upon Which the Conviction is Based\\nThe petitioner lived with Mary Donovan for several years prior to their marriage in July 1999. (Tr. 555,1054.) He was unemployed during this entire period. (Tr. 559.) Donovan received an allowance from her trust fund. (Tr. 577.) According to Donovan's doctor, she had a mental age of about twelve years old. (Tr. 1085.)\\nDonovan had severe chronic pain and took prescription medication for her condition. (Tr. 1085-86.) At the time of her death, Donovan had an infection in her right elbow which caused her pain and which made movement of her right arm very difficult. (Tr. 1082.) She had difficulty bending it, lifting, or holding anything. (Tr. 1082.) According to Donovan's brother David, Donovan did eveiything she could to avoid pain. (Tr. 573.) Although Hudson owned guns, Donovan did not like guns and did not like to handle them. (Tr. 560.)\\nOn the morning of September 20,1999, Donovan went fox hunting. (Tr. 497, 499, 520.) That afternoon, she attended a funeral service for her father, who had passed away after a long illness. (Tr. 554.) A reception was held after the service at which both Donovan and the petitioner drank alcohol. (Tr. 567.) Donovan wore a new dress to the events and had received a ring, which was a family heirloom. (Tr. 554.) She was pleased to have-received the piece of jewelry and appeared in good spirits. (Tr. 499, 578.)\\nFollowing the reception, Donovan and Hudson were alone at their home. Donovan telephoned long-time friend Wes Thompson to ask if he had heard about her father's death. (Tr. 603.) During the phone call, which Thompson estimated occurred around 7:45 p.m., Hudson spoke into the phone in a nasty tone, calling Thompson a \\\"son of a bitch mother fucker,\\\" and asking why Thompson was talking to his wife. (Tr. 603-05,611.) Thompson hung up the phone. (Tr. 604.)\\n' Hudson thereafter telephoned his mother and said that Donovan had shot herself. (Tr. 694.) He did not call 911 to seek medical help or notify the police. (Tr. 1026.) Hudson's parents went to his house, which was only a few miles away. They saw Donovan's body, but they did not touch it. (Tr. 696, 1065.) Hudson was not there, and his father called the police at 7:52 p.m. to report the shooting. (Tr. 631, 696,1065.)\\nThe officers arrived at Donovan's home around 8:00 p.m. and discovered that it was in violent disarray and that Hudson was not there. (Tr. 646, 662.) There was broken glass on the kitchen floor, near which lay a military shovel. (Tr. 646, 662.) Deputy Jones saw Donovan's body lying on the living room couch. A .22 caliber firearm was awkwardly positioned in her right hand. The gun was lying in the palm of the hand, essentially facing backwards. (Tr. 645.) There was a large bloody hand print on the back cushion of the couch.' (Tr. 645, 676.) However, Donovan did not appear to have blood on her hands. (Tr. 648, 1004.)\\nIt was raining hard that night. (Tr. 1068,1222.) As Officer Crosson was leaving the defendant's house, he noticed a garden hose outside with water running from it \\\"full blast.\\\" (Tr. 1068.)\\nAt 9:17 p.m., the police received a call that Hudson was at his parents' home. (Tr. 631.) Hudson's brother, Steven Hudson, saw Hudson in the driveway of their parents' home and helped him inside to try to \\\"sober him up.\\\" (Tr. 1172.)\\nHudson's father removed a .270 caliber rifle from Hudson's car and put it in the house. (Tr. 1164.) The gun was not in a case. (Tr. 1168.) Hudson's father did not advise law enforcement that he had removed the weapon. (Tr. 1168-69.) Hudson's father did not see blood on the defendant. (Tr. 1169.)\\nWhen officers arrived at the house, they saw Hudson seated in his parents' living room, holding a cup of coffee. He was extremely intoxicated. (Tr. 652.) Hudson's father told the officers that he did not want Hudson in his home. (Tr. 652.) The police arrested Hudson for being drunk in public.\\nHudson was taken to the sheriff s department. During a pat down search at the jail, Sergeant Elland discovered a .22 caliber bullet in Hudson's coat pocket. (Tr. 634) A gunshot residue test was administered and Deputy Roper obtained a search warrant for Hudson's clothes. (Tr. 1/9/01 at 121,137-38.) The next morning, about 6:30 a.m., Roper saw Hudson at the jail, and advised him of the Miranda warnings. Hudson then gave a statement. (Tr. 1024.)\\nHudson stated that Donovan was unhappy because she thought that she deserved more from her father's estate. (Tr. 1025.) According to Hudson, Donovan picked up the gun and began playing with it. (Tr. 1025.) Hudson said that he told her not to do so. (Tr. 1025.) He said he heard a shot while he was in a nearby bathroom. (Tr. 1025.) He returned and saw Donovan \\\"slumping over\\\" on the couch. He said he left the house and went to his mother's home. (Tr. 1026.)\\nHudson stated that he \\\"never got close to\\\" Donovan's body. (Tr. 1026.) Hudson did not know why he did not call 911, and did not remember calling anyone after the shooting. (Tr. 1026-27.) When asked to explain the .22 caliber bullet found in his pocket, Hudson said that he must have picked it up with loose change from his dresser. (Tr. 1027.)\\nInvestigator Stan Gregg of the Virginia State Police interviewed Hudson in the presence of his attorney on November 18,1999. (Tr. 1053-54.) Hudson said in that statement that, on September 20, he and Donovan were drinking at their home and Donovan was upset because the trust would not let her purchase a truck. (Tr. 1058.) He said that Donovan pulled out a gun, began playing with it, and said she was going to shoot herself. (Tr. 1059.)\\nHudson said that he went into the bathroom and while there heard a shot. (Tr. 1059.) When he came out of the bathroom, he saw a \\\"little bit\\\" of blood around Donovan's eyes. (Tr. 1059.) He repeatedly denied going near her body. (Tr. 1059.)\\nHudson also denied handling any firearm that night. (Tr. 1060.) He said he last touched a firearm two nights prior to Donovan's death. (Tr. 1061.) He could not account for his whereabouts between the time of the shooting and the time he arrived at his parents' house, a period of more than an hour. (Tr. 1060-61.) According to Hudson, neither he nor Donovan made or received any telephone calls that night. (Tr. 1061.)\\nAt trial, the medical examiner testified that Donovan had suffered a \\\"contact range\\\" wound to the head and that the bullet traveled into her head at the left ear and then went into her brain. (Tr. 830-32.) The medical examiner explained that such a wound would cause immediate unconsciousness, and death would follow within minutes. (Tr. 834.) There would have been no voluntary movement by the victim after the gunshot. (Tr. 841.) The doctor also testified that blood would \\\"pour\\\" from the ear wound and would flow quickly after the shot. (Tr. 833-34.)\\nA firearm expert opined that it was necessary to cock the hammer back before firing the weapon. (Tr. 850.) An expert in gunshot residue testified that both of the defendant's hands showed primer residue. (Tr. 892, 896.) Donovan had residue on her right hand. (App. 559.)\\nAn expert in blood splatters identified bloody contact transfer stains on the couch cushion, the left front thigh of Donovan's jeans, and on Donovan's right forearm. (Tr. 972-73.) The expert testified that the contact transfers came from heavily bloody hands, but not the victim's, because no blood was visible on Donovan's hands. (Tr. 1004.) The expert also testified about blood found beneath an open telephone book on which the victim's hand was propped. The expert opined that a majority of the accumulated blood stain had been \\\"covered\\\" by an open telephone book. (Tr. 979.) She stated that the \\\"blood would have had to be placed there first and then the telephone book on top of that.\\\" (Tr. 979.)\\nForensic scientist Carol Palmer testified that a spot of blood on Hudson's shirtsleeve matched the victim's blood. (Tr. 920-21.) DNA testing showed that the possibility that the blood came from anyone other than Donovan was one in 51 million. (Tr. 921.)\\nII. Conclusions of Law\\nA. Hearing\\nThe allegations of illegality can be fully determined on the basis of the record; therefore, no plenary hearing is necessary in this case. Va. Code \\u00a7 8.01-654(B)(4); See also Friedline v. Commonwealth, 265 Va. at 277, 576 S.E.2d at 493-94, and Arey v. Peyton, 209 Va. 370, 164 S.E.2d 691 (1968). Petitioner's counsel stated his reasons for not assigning cross-error in his Petition for Rehearing filed in the Supreme Court.\\nB. Standard of Ineffective Assistance of Counsel\\nTo prevail on his ineffective assistance of counsel claim, the petitioner has the burden to show both that his attorney's performance was deficient and that he was prejudiced as a result. See Strickland v. Washington, 466 U.S. 668, 687 (1984). \\\"Unless [the petitioner] establishes both prongs of the two-part test, his claims of ineffective assistance of counsel will fail.\\\" Jerman v. Director, Department of Corrections, 267 Va. 432, 438, 593 S.E.2d 255, 258 (2004). \\\"A defendant is constitutionally entitled to effective assistance of counsel on direct appeal, and the standards governing effectiveness at trial are equally applicable to representation on direct appeal.\\\" Tucker v. Catoe, 221 F.3d 600, 613 (4th Cir. 2000) (citation omitted). See Smith v. Murray, 477 U.S. 527, 535-36 (1986).\\nThe first prong of the Strickland test, the \\\"performance\\\" inquiry, \\\"requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.\\\" Strickland, 466 U.S. at 687. In Bell v. Cone, 535 U.S. 685, 702 (2002), the Supreme Court held:\\nWe cautioned in Strickland that a court must indulge a \\\"strong presumption\\\" that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.\\nSee Burket v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000) (reviewing court \\\"must be highly deferential in scrutinizing [counsel's] performance and must filter the distorting effects of hindsight from [its] analysis\\\"). \\\"The Sixth Amendment's guarantee of assistance of counsel requires that counsel exercise such care and skill as a reasonably competent attorney would exercise for similar services under the circumstances.\\\" Frye v. Commonwealth, 231 Va. 370, 400, 345 S.E.2d 267, 287 (1986).\\nThe prejudice requirement of the Strickland test requires a showing that there is a \\\"reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.\\\" Strickland, 466 U.S. at 694. A reasonable probability is a \\\"probability sufficient to undermine confidence in the outcome.\\\" Id. An ineffective counsel claim may be disposed of on either prong because deficient performance and prejudice are \\\"separate and distinct elements.\\\" Spencer v. Murray, 18 F.3d 229, 233 (4th Cir. 1994). See Strickland, 466 U.S. at 697; Sheikh v. Buckingham Correctional Center, 264 Va. 558, 566-67, 570 S.E.2d 785, 790 (2002). A reviewing court need not determine \\\"whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies____ If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be followed.\\\" Strickland, 466 U.S. at 697.\\nC. Failure to Anticipate an Adverse Ruling by the Supreme Court Is Not Ineffective Assistance of Counsel\\nThe petitioner alleges that his counsel was ineffective in prosecuting his appeal because counsel failed to assign cross-error in the Supreme Court of Virginia to the Court of Appeals' failure to address the evidentiary issues on which it has granted his appeal but which were extraneous to the Court of Appeals' decision reversing his conviction. The petitioner contends that he is entitled to a delayed appeal in the Court of Appeals of Virginia so that it can determine the issues accepted for review in that Court, but never reached by the Court of Appeals in its decision.\\n\\\"[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.\\\" Strickland, 466 U.S. at 690. Counsel was not ineffective in failing to assign cross-error to the Court of Appeals' failure to address the evidentiary issues it had granted. A sine qua non for an appeal is an adverse decision, so it was reasonable for petitioner's counsel to have concluded that it was not necessary to bring the undecided assignments of error before the Supreme Court because those issues had not been decided adversely to him by the Court of Appeals. It was very logical to assume that, if the Supreme Court reversed the Court of Appeals, that it would remand the case to the Court of Appeals for consideration of the unaddressed points. While Rule 5:18 of the Rules of the Virginia Supreme Court provides that the appellee may assign cross-error in a brief in opposition, there was no cross-eiTor to assign in this case because the Court of Appeals never rendered any decision on the three issues which it did not consider.\\nAfter its decision in this case, the Supreme Court of Virginia expressly ruled in Horner v. Department of Mental Health, 268 Va. 187, 194, 597 S.E.2d 202,206 (2004), that, in order to preserve for review an issue on which the Court of Appeals did not rule favorably to a party, that party must assign cross-error to the Court of Appeals' failure to rule. \\\"The Court of Appeals did not rule in favor to the Department on the issue of the circuit court's lack of jurisdiction. In order to preserve that issue for our review, an assignment of cross-error citing the Court of Appeals failure to so rule was necessary.\\\" Id. at 4. See also Riner v. Commonwealth, 268 Va. 296, 325, 601 S.E.2d 555, 572 (2004). Horner at 194 cites a footnote in Wells v. Shoosmith, 245 Va. 386, 388, n. 1, 428 S.E.2d 909, for the proposition that \\\"an assignment of cross-error citing the Court of Appeals' failure to so rule was necessary [to preserve the point for argument before the Supreme Court].\\\" Although Wells involved an appeal from the trial court not an appeal from the Court of Appeals, the Supreme Court apparently, saw no difference between a case appealed from the trial court in which alleged errors are properly placed before the appellate courts for review and the failure of the Court of Appeals to rule on points which are not necessary for their decision. In this case, the error was properly preserved for appeal to the Court of Appeals but simply not addressed because the Court of Appeals decided that it was not necessary to its decision.\\nIn the years before this case, the Supreme Court of Virginia appears to have applied a different procedural rule in similar cases. In Michael Dotson v. Commonwealth, 00 Vap UNP 1541993 (2000), Dotson appealed his conviction for felony child abuse to the Court of Appeals of Virginia, which granted the appeal on the issue of sufficiency of the evidence and on other evidentiary issues. The Court of Appeals reversed and dismissed the conviction based on its finding that the evidence was insufficient. The Court did not address some of the other issues that it had granted. The Court stated in the opinion issued July 5, 2000, \\\"Because we hold that the evidence was insufficient to support the conviction, we do not address the remaining issues.\\\" (Exhibit 8, copy of Court of Appeals Dotson opinion at p. 10.) The Commonwealth appealed the decision of the Court of Appeals to the Supreme Court of Virginia. Dotson did not assign cross-error to the Court of Appeals' failure to address other issues it had granted. (Exhibit 9, copy of brief in opposition.) The Supreme Court granted the Commonwealth's appeal. (Record No. 001898.) In its unpublished opinion of June 8, 2001, reversing the decision of the Court of Appeals, the Supreme Court of Virginia noted that \\\"the Court of Appeals failed to resolve certain questions concerning the admissibility of evidence. In this case, in order to determine the sufficiency of the evidence, the Court of Appeals must first determine what evidence is subject to their consideration. Accordingly, we reverse and vacate the judgment of the Court of Appeals of Virginia and remand to the Court of Appeals of Virginia for determination of evidentiary questions not decided, and for disposition of the case utilizing the proper standard of appellate review.\\\" (Exhibit 10, copy of unpublished Dotson opinion of Supreme Court) (Emphasis added.)\\nSimilarly, in Megel v. Commonwealth, 262 Va. 531, 551 S.E.2d 638 (2001), the Supreme Court of Virginia remanded a matter to the Court of Appeals for its determination of an issue. A panel of the Court of Appeals of Virginia had affirmed Megel's firearm conviction, and that Court en banc had also affirmed the judgment. The Court of Appeals ruled that Megel's participation in a home electronic incarceration program was analogous to serving a sentence and thus his home was the functional equivalent of a jail or prison cell, resulting in a loss of Fourth Amendment protection. Megel appealed the decision to the Supreme Court of Virginia. The Supreme Court noted in its opinion that the Commonwealth had argued that \\\"even if Megel was entitled to the protection of the Fourth Amendment, the record supports the trial court's alternative holding that Megel voluntarily consented to the search.\\\" Megel, 262 Va. at 537, 551 S.E.2d at 642. The Court continued, \\\"The Court of Appeals, however, declined to address this issue in light of its holding that Megel had no reasonable expectation of privacy____Although we question whether Megel raised this issue before the Court of Appeals, we will leave that determination to the Court of Appeals.\\\" Id. (citation omitted). The Supreme Court concluded:\\nAccordingly, the judgment of the Court of Appeals will be reversed and, because the Court declined to consider the issue of consent and the issue is not before us as an assignment of error, the case will be. remanded to the Court of Appeals for consideration thereof.\\nId. (emphasis added).\\nEffective assistance of counsel is not perfect or errorless performance, but is \\\"professionally reasonable performance.\\\" Poyner v. Murray, 964 F.2d 1404, 1423 (4th Cir. 1992). Moreover, as Strickland instructs, the determination of the reasonableness of counsel's actions must be judged \\\"as of the time of counsel's conduct.\\\" Strickland, 466 U.S. at 690. At least at the time of the Commonwealth's appeal in Hudson, it was not reasonable to conclude that the Supreme Court would not remand unresolved issues to the Court of Appeals. Hudson has failed to demonstrate the performance prong of the Strickland test.\\nCourts are creatures of constraint; consequently, their prerogative to act depends upon the jurisdiction which they been granted by the Constitution, by the legislature, and by judicial pronouncements in decisions or rules, like the Rules of Court. The only Rule applicable to this case is Rule 5:18(b), which provides that \\\"cross-error not then assigned will be noticed by this Court.\\\" Since courts are creatures of constraint, they decide only those questions presented to them which are necessary to resolve the issue which they are presented. For example, there may be ten assignments of error, but if only one assignment of error is case dispositive in the court's view, as was the view of the Court of Appeals in this case, then only that point of error is or should be decided. The plethora- of other assignments of error, even if valid, are superfluous to the decision, so in the interests of judicial economy and in furtherance of the policy of judicial restraint, once a dispositive point is decided, if that decision then merits reversal and the entry of final judgment, the other assignments of error are not addressed. Since the other assignments of error were not considered by the Court of Appeals, there was no decision of the Court of Appeals on the undecided issues to which to assign cross-error, by the Defendant, or at least that is how this case would have appeared to counsel and to the Supreme Court in Dotson v. Commonwealth, 00 VAP UNP 1541993 (2000), and Megel v. Commonwealth, 262 Va. 531, 551 S.E.2d 638 (2001), where the Supreme Court, after reversing the Court of Appeals, remanded the case to the Court of Appeals to consider the appeal points which it had not addressed in its earlier decision.\\nThe law is always in a state of evolution towards perfection. Between July 1,1997, when the Commonwealth was given its right of appeal and June 10,2004, when Horner v. Department of Mental Health, supra, was decided, the rule governing the assignment of cross-error in appeals to the Supreme Court to issues not decided by the Court of Appeals was in a state of flux. Apparently, in this case, the Supreme Court decided to change or deviate from its prior policy, so it declined to remand the case to the Court of Appeals for further consideration as it had done in other recent, similar cases. This issue was expressly presented to the Supreme Court in the Petition for a Rehearing, and the Supreme Court could have exercised its discretion to remand this case to the Court of Appeals, and it declined to do so. Counsel could not reasonably have anticipated this unannounced procedural shift by the Supreme Court, and counsel is only required to perform to a professionally reasonable standard; they are not required to be either prescient or perfect. Therefore, the claim of ineffective assistance of counsel is denied.\\nSince this Court has decided that there was no ineffective assistance of counsel, as a technical matter for the reasons stated above, as a matter of judicial restraint, it need not address the other assignments of error, but it will, since this case is sure to be appealed, and there are alternative grounds for this court's decision.\\nD. The Assignments of Error Not Considered by the Court of Appeals\\nThe Petitioner has failed to demonstrate that, but for counsel's alleged error, there is a reasonable probability of a different outcome on the appeal. The three issues of which the Court of Appeals granted review, but did not decide were:\\n1. Did the trial court properly deny Hudson's motion to suppress evidence obtained following his arrest?\\n2. When the Commonwealth disclosed a DNA report outside of the statutory time requirement, did the trial court properly exercise its discretion in offering Hudson a continuance and in ruling that the facts did not warrant exclusion of the evidence?\\n3. Did the trial court properly refuse Hudson's proffered instruction regarding suicide and accident?\\nA decision on any or all of the three issues would not have resulted in a reversal and remand for new trial.\\n1. Denial of the Motion to Suppress\\nHudson argues that the trial court erred in denying his motion to suppress. He claimed that the officers lacked probable cause to arrest him for being drunk in public because he was inside his parents' home when he was arrested; consequently, any evidence seized as a result of the arrest should have been suppressed, including the gunshot residue test results, the clothing seized from him, and statements given by him. However, the trial court did not err in denying the motion to suppress. The trial court held a hearing on the motion to suppress. When an appellate court reviews a trial judge's denial of a motion to suppress, the court considers the \\\"evidence adduced at both the trial and suppression hearing.\\\" Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994). See DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542-43 (1987). The burden is on the defendant to show that the trial court's denial of a motion to suppress, \\\"when the evidence is considered most favorably to the Commonwealth, constituted reversible error.\\\" McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).\\n\\\"Probable cause exists when the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed.\\\" Jones v. Commonwealth, 18 Va. App. 229, 231, 443 S.E.2d 189, 190 (1994) (citation omitted). The probable cause standard is a \\\"'practical, nontechnical conception' that deals with 'the factual and practical considerations of eveiyday life on which reasonable and prudent men, not legal technicians, act.' 'Probable cause is a fluid concept - turning on the assessment of probabilities in particular factual contexts - not readily, or even usefully, reduced to a neat set of legal rules'.\\\" Maryland v. Pringle, 540 U.S. 366, 371 (2003) (citations omitted).\\nWhen the officers arrived at Hudson's parents' home, at his parents' request, they knew that Hudson's father had called dispatch and relayed Hudson's report that Donovan had shot herself in the head. (Tr. 1/9/01 at 82.) For Hudson to have made that report to his father, it was reasonable to infer that he had been present at the home where the shooting occurred. The police responded to Hudson's home around 8:00 p.m. (Tr. 1/9/01 at 66.) Hudson was not there. At 9:17 p.m., Hudson's father called the police and reported that Hudson's location was at the father's home. (Tr. 1/9/01 at 76.) Hudson's father wanted his son removed from his home. (Tr. 1/9/01 at 79, 100, 126, 134; Tr. 652.) The parents' home was a few miles away from Hudson's home. (Tr. 1065.) Clearly, Hudson had traveled from his own home or somewhere to his parents' home. During that journey, he would have been in public. When the police arrived at the parents' home, Hudson was very intoxicated. (Tr. 1/9/01 at 77-78.)\\nGiven the totality of all of these circumstances, the officers had probable cause to believe that Hudson had arrived at his parents' home in a state of intoxication. Thus, the officers had probable cause to believe that Hudson had committed the offense of being drunk in public. In fact, Hudson was intoxicated when he arrived at his parent's home. Hudson's brother, Steven Hudson, testified at trial that he saw Hudson in the driveway and took him inside to try to \\\"sober him up.\\\" (Tr. 1172-73.) Hudson's statement acknowledged that he was drinking that evening at his home. (Tr. 1058.) The officers' failure to observe Hudson's intoxication \\\"in public,\\\" prior to arresting him, may constitute a violation of Virginia Code \\u00a7 19.2-81, but it did not strip the officers of probable cause to arrest him. Significantly, such a statutory violation does not constitute grounds for suppression of evidence. See Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218, 420 S.E.2d 713 (1992) (per curiam). See also Thompson v. Commonwealth, 10 Va. App. 117, 123, 390 S.E.2d 198, 202 (1990) (where officer had probable cause to arrest defendant and no deprivation of constitutional rights occurred, any violation of Va. Code \\u00a7 19.2-81 did not warrant exclusion of defendant's voluntary confession). Because the officers had probable cause to arrest Hudson for being drunk in public, any violation of Va. Code \\u00a7 19.2-81 did not require exclusion of evidence or statements obtained as a result of the arrest.\\nThe police also had probable cause to arrest Hudson for the homicide of his wife. The fact that they did not subjectively rely on that ground for arrest is of no consequence. \\\"Whether a Fourth Amendment violation has occurred 'turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time, ' and not on the officer's actual state of mind at the time the challenged action was taken.\\\" Limonja v. Commonwealth, 8 Va. App. 532, 538, 383 S.E.2d 476, 480 (1989) (en banc) (citations omitted). The reviewing court must look at all the objective facts. In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court found as follows: \\\"[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.\\\" Id. at 813 (citation omitted). See Devenpeck v. Alford, 543 U.S. \\u2014, 125 S. Ct. 588 (2004).\\nIn this case, the officers had probable cause to arrest Hudson for the homicide of Mary Donovan. Deputy Jones knew that Hudson had reported to his father that Donovan had shot herself. (Tr. 1/9/01 at 82.) However, upon arriving at the home Donovan and Hudson shared, Jones found evidence that was not consistent with suicide, but which was indicative of violence and homicide. (Tr. 662.) There was broken glass on the kitchen floor. (Tr. 1/9/01 at 67; Tr. 642, 662.) The body of the victim was lying on the couch in the living room. The gun lay awkwardly in the victim's hand. Although Donovan's face was bloody, no blood appeared on her hands. (Tr. 648.) Yet, Jones saw a bloody hand print on the back of the couch. (Tr. 1/9/01 at 69.) Finally, although Hudson had reported the shooting to his father, thus indicating that he was at the home when the shooting occurred, he fled from the home before the police arrived. (Tr. 1/9/01 at 68, 75.)\\nThis \\\"totality of circumstances\\\" justified the police in arresting Hudson for homicide. Although the police did not state that they were arresting Hudson for the homicide of his wife, the officers objectively had probable cause to do so. Thus, even if the officers erred in arresting Hudson for being drunk in public, they had probable cause to arrest him for the killing, and the evidence and statement obtained as a result of the arrest were not subject to suppression.\\nIn his Court of Appeals brief, Hudson relied on Knowles v. Iowa, 525 U.S. 113 (1998), and Rhodes v. Commonwealth, 29 Va. App. 641, 513 S.E.2d 904 (1999) (en banc), to argue that the trial court should have suppressed the results of the gunshot residue test administered to Hudson after he was arrested and brought to the sheriffs department. Unlike the Defendants in Knowles and Rhodes, Hudson was arrested. While a summons was issued, an arrest warrant was subsequently issued. (Tr. 1/9/01 at 103.) The defendant was extremely intoxicated. His father had requested that he be removed from the father's home. Hudson's own home was the scene of a police investigation into his wife's shooting death. The officers could not release Hudson. Deputy Small testified that Hudson was taken into custody \\\"for his safety.\\\" (Tr. 810.) Thus, he was properly arrested. Virginia Code \\u00a7 19.2-74(A)(2) specifically excludes from its coverage the offense of public drunkenness. Because of their boisterous nature, the police are permitted to make custodial arrests of intoxicated persons, and when doing so, they may search or question those persons incident to that arrest.\\nFurthermore, as argued above, the police had probable cause to arrest Hudson for homicide. Consequently, they had probable cause to conduct the gunshot residue test on Hudson's hands. The police also faced exigent circumstances with regard to such a test. Residue evidence is fragile and can be washed off or rubbed off. (Tr. 1/9/01 at 74-77, 117.) The record reveals that it was raining on the night of September 20, 1999. (Tr. 1068, 1222.) Furthermore, Deputy Roper testified that a magistrate was not always on duty and a delay could have been fatal to the ability to conduct a valid test for residue. (Tr. 1/9/01 at 117-18.)\\nProbable cause and exigency combined to justify the gunshot residue test. See Wright v. Commonwealth, 222 Va. 188, 193, 278 S.E.2d 849, 853 (1981) (\\\"Where there are exigent circumstances in which police action literally must be 'now or never' to preserve the evidence of the crime, it is reasonable to permit action without prior judicial evaluation.\\\"). See generally Verez v. Commonwealth, 230 Va. 405, 337 S.E.2d 749 (1985). The trial court did not err in denying the motion to suppress. Thus, even had the issue been decided on appeal, there is no reasonable probability that Hudson would have obtained relief on that basis.\\n2. Objection to DNA Evidence\\nHudson also contended before the Court of Appeals that the trial court abused its discretion in overruling his objection to the admission of DNA evidence, due to the Commonwealth's tardiness in providing certain DNA reports. He claimed on appeal that the Court's refusal to bar the admission of the evidence violated due process. The Court, however, did not err, but properly exercised the discretion provided to it by Va. Code \\u00a7 19.2-270.5, which provides in pertinent part as follows:\\nAt least twenty-one days prior to commencement of the proceeding in which the results of a DNA analysis will be offered as evidence, the party intending to offer the evidence shall notify the opposing party, in writing, of the intent to offer the analysis and shall provide or make available copies of the profiles and the report or statement to be introduced. In the event that such notice is not given, and the person proffers such evidence, the court may in its discretion either allow the opposing party a continuance or, under appropriate circumstances, bar the person from presenting such evidence. The period of any such continuance shall not be counted for speedy trial purposes under \\u00a7 19.2-243.\\nIn Caprio v. Commonwealth, 254 Va. 507, 493 S.E.2d 371 (1997), the Supreme Court of Virginia held that, where there is an untimely disclosure of DNA evidence, the clear language of Code \\u00a7 19.2-270.5 limits atrial court's discretion \\\"to a choice of 'either' of two defined options.\\\" Id. at 512, 493 S.E.2d at 374. The Court in Caprio determined that, if the trial court determines that the evidence is admissible, \\\"the statute requires the court to grant a motion to interrupt and postpone the progress of the trial to afford the defense a period of time for consultation with other experts and preparation of an appropriate response to the new evidence.\\\" Id.\\nIn this case, at the hearing on Hudson's motion, the trial court asked Hudson if he wanted a continuance in the event the Court did not find appropriate circumstances to bar admission of the evidence. Hudson said he did not and argued that he should not have to ask for a continuance because he was not at fault. (Tr. 1/3/01 at 36.) The Court then stated that it did not find the circumstances appropriate to bar admission of the evidence. (Tr. 1/3/01 at 44.) The Court advised Hudson again that he was allowed a continuance. Hudson declined the continuance. (Tr. 1/3/01 at 45.)\\nIn light of the laboratory's inability to complete the analysis in a timely manner, the fact that the scientist had met with Hudson's counsel, and the prosecutor represented that the scientist would be available to meet with him again, the Court did not abuse its discretion in finding that the circumstances did not warrant a bar to the admission of the evidence. Having ruled that it would not bar the admission of the evidence, the Court complied with the statute and afforded Hudson a continuance. Hudson declined the continuance. The Court did not err. Significantly, the critical DNA testimony at trial concerned blood on Hudson's shirtsleeve. Those findings were included in an earlier report from September 1,2000. There is not a reasonable probability of reversal on this ground, had this issue been decided by the appellate courts.\\nThe principles governing the review of trial counsel's performance were restated by the Supreme Court of the United States in Burger v. Kemp, 483 U.S. 776, 97 L. Ed. 2d 638, 107 S. Ct. 3114 (1991):\\n\\\"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a Court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting affects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.\\\" Strickland v. Washington, 466 U.S. at 689, 80 L. Ed. 2d 674, 104 S. Ct. 2052.\\nThe Burger Court went on to note at 483 U.S. at 657:\\n[I]n considering claims of ineffective assistance of counsel, \\\"[w]e address not what is prudent or appropriate, but only what is constitutionally compelled.\\\" United States v. Chronic, 466 U.S. 648, 655, n. 38, 80 L. Ed. 2d 657, 104 S. Ct 2039 (1984). We have decided that \\\"strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.\\\" Strickland, 466 U.S. at 690-91, 80 L. Ed. 2d 674, 105 S. Ct. 2052.\\nIt would appear that there were reasonable grounds for the strategic judgment of the Petitioner ' s trial counsel in not pursuing a continuance which, if done, would have obviated the Petitioner's objection to the timeliness of the DNA report about which he now complains.\\n3. Failure to Grant Suicide Instruction\\nHudson claims that the suicide instruction was supported by the evidence and was a proper statement of the law and that, without the proffered instruction, the jury received incomplete guidance for their deliberations. While this instruction was a proper statement of the law and perhaps could have been given, the trial court did not err in refusing the proffered instruction. In instructing the juiy, the trial judge is responsible for seeing that \\\"the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.\\\" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (citation omitted). \\\"If the principles set forth in a proposed instruction are fully and fairly covered in other instructions that have been granted, a trial court does not abuse its discretion in refusing to grant a repetitious instruction.\\\" Joseph v. Commonwealth, 249 Va. 78, 90, 452 S.E.2d 862, 870 (1995). SeeHubbard v. Commonwealth, 243 Va. 1, 16, 413 S.E.2d 875, 883 (1992).\\nThe instruction at issue concerned accident and suicide and read as follows:\\nWhere the defense is that the killing was an accident or suicide, the defendant is not required to prove this fact. The burden is on the Commonwealth to prove beyond a reasonable doubt that the killing was not accidental or by suicide. If after considering all the evidence you have a reasonable doubt whether the killing was accidental or suicidal or intentional, then you shall find the defendant not guilty.\\n(Exhibit 11.)\\nThe proposed instruction was modified from Model Jury Instruction 33.850, which addresses accident only. While the model does not expressly address suicide, the principle does apply to suicide as well as to an accidental death.\\nThe Commonwealth was required to prove that the defendant killed the victim. It was not required to prove that the victim did not commit suicide. See State v. Babb, 877 P.2d 905, 912 (Idaho 1994). The trial court recognized that the jury already was instructed \\\"with regard to burden of proof.\\\" (Tr. 1281.) Indeed, in Instruction 2, the jury was instructed that the presumption of innocence remains with the defendant throughout the trial and is enough to require acquittal \\\"unless and until the Commonwealth proves each and every element of the offense beyond a reasonable doubt.\\\" (Exhibit 13.) That instruction stated that there was no burden on the defendant to produce any evidence. Instruction 3 recited the elements that the Commonwealth was required to prove. The first numbered element was, \\\"That the defendant killed Mary Donovan Hudson.\\\" (Exhibit 14.) Instruction 4 directed the jury to resolve any doubt as to the grade of the offense in favor of the defendant. (Exhibit 15.)\\nThese instructions advised the juiy that the Commonwealth was required to prove criminal agency. Furthermore, when coupled with counsel's argument, the granted instructions leave no doubt that the jury understood that it was the Commonwealth's burden to prove that the defendant was the one who shot his wife. See Buchanan v. Angelone, 522 U.S. 269, 278-79 (1998) (in entire context in which instructions given, including testimony and argument of counsel, no reasonable likelihood that jurors misunderstood instructions). Under these circumstances, the trail court's refusal of this instruction did not prejudice the petitioner.\\nE. Procedural Default\\nIn Allegation B, the petitioner alleges that he was denied his due process rights and his right to fundamental fairness when he was denied his constitutional right to have all of his appellate issues decided, except one. That \\u2022 claim, however, is not cognizable in a habeas corpus action in this Court. \\\"A prisoner is not entitled to use habeas corpus to circumvent the trial and appellate processes for an inquiry into an alleged non-jurisdictional defect of a judgment of conviction.\\\" Slayton v. Parrigan, 215 Va. 27, 30, 205 S.E.2d 680, 682 (1974). \\\"[A] claim that could have been raised at the criminal trial or on direct appeal is not cognizable in habeas corpus because to do so would circumvent the trial and appellate process for non-jurisdictional defects.\\\" Henry v. Warden, Riverside Regional Jail, 265 Va. 246, 248, 576 S.E.2d 495, 496 (2003). Furthermore, \\\"a non-jurisdictional issue raised and decided either in the trial or on direct appeal from the criminal conviction will not be considered in ahabeas corpus proceeding.\\\"Henry, 265 Va. at 249, 576 S.E.2d at 496.\\nIn the petition for rehearing filed in the Virginia Supreme Court, Hudson argued that neither the Code of Virginia nor the Virginia Constitution required the Supreme Court to enter final judgment. (Exhibit 4, at p. 2.) He argued that under Article VI, \\u00a7 6, of the Virginia Constitution, the Virginia Supreme Court had discretion to enter final judgment as well as to remand a case for further proceedings. He argued that, because issues remained unresolved, \\\"substantial justice has not been reached in this matter and the cases must be remanded for further proceedings in the interest of fairness.\\\" (Exhibit 4, at p. 6.)\\nThe petitioner did not argue his current constitutional claims in his petition for rehearing. He now contends in habeas corpus that the failure of the Court of Appeals to decide all of the issues it had granted and the Supreme Court's failure to remand those issues to the Court of Appeals for a decision violated the state and federal constitutions. He cites the 5th, 6th, and 14th amendments to the United States Constitution and Article I, \\u00a7 8, of the Virginia Constitution. However, he did not rely on these provisions in the petition for rehearing. He argued that the only way to \\\"ensure proper appellate review\\\" and \\\"achieve substantial justice\\\" in the case, was to remand the matter to the Court of Appeals for determination of the \\\"unresolved issues.\\\" (Exhibit 4, at p. 5.) He did not argue his current constitutional claims and the issue is barred pursuant to the rule in Slayton v. Parrigan, supra.\\nIn the very last sentence of the argument in the petition for rehearing, Hudson argued that the issues must be resolved by the appellate courts to ensure that he received \\\"a fair trial on the merits, that the ends of justice and fairness are achieved, and the Defendant receives full and complete due process of law.\\\" Even if the trial court were to find that, by this sentence, Hudson presented his current habeas Claim B on direct appeal, the claim would be barred pursuant to the rule in Henry v. Warden, supra.\\nIII. Decision\\nFor the foregoing reasons, it is adjudged and ordered that (1) Petitioner's Motion for an evidentiary hearing is denied and (2) the Petition for Habeas Corpus is dismissed with prejudice.\\nThe Clerk shall forward copies of this order to the Petitioner, Respondent's counsel, and to the Commonwealth's Attorney of Clarke County. Counsel of record shall file such objections hereto as deemed advisable within ten days of their receipt of a copy of this order. Endorsement is dispensed with pursuant to Supreme Court Rule 1:13.\\nThis is a final order, and the Clerk is directed to place this case in the ended files. Any notice of appeal of this order to the Supreme Court of Virginia must be filed with the Clerk of this Court within thirty days of the entry of this order.\\n\\\"Tr.\\\" refers to the trial transcript.\\nThe residue on Hudson's hands contained three elements, barium, lead, and antimony. Residue on Donovan's hands contained only lead and barium. (Tr. 892-900.)\\nIn Riner, the Court included the following parenthetical following a reference to Horner: \\\"failure to assign cross-error on an issue the Court of Appeals didnot address waives further appellate review of the issue.\\\"\\nThe Court admitted evidence that the defendant had pleaded guilty in the district court to the charge ofbeing drunk in public. (Tr. 1/9/01 at 92-93.) The Court expressly noted that it was considering the plea of guilty to that charge, as an \\\"admission,\\\" not the fact that Hudson had been convicted by the district court. (Tr. 1/9/01 at 86,151.)\\nHudson's clothing was seized as result of a subsequently issued search warrant. (Tr. 1/9/01 at 121.) The statement obtained the night of the arrest was quite similar to a subsequent statement given by Hudson, in the presence of his attorney. (Tr. 1/9/01 at 121; Tr. 1025-27,1055-61.)\\nThe arrest warrant was not made part of the record. When the Commonwealth attempted to introduce it into evidence, Hudson objected on the ground that it contained extraneous information about his conviction in the district court. The Court sustained the objection. (Tr. 1/9/01 at 104.)\\nThe value of the gunshot residue test was that it demonstrated that Hudson had touched a firearm, contrary to his claim that he had not handled a gun in two days. Of course, Hudson relied on the actual results of the gunshot residue test because the elements present on his hands were not completely consistent with the elements present in the ammunition which killed the victim.\\nOn appeal, Hudson limited his challenge to the admission of DNA evidence to the report filed on December 29,2000. An additional report, concerning DNA analysis of the victim's twin brother, was filed on January 9, 2001. The trial court limited the Commonwealth's introduction of the results of the January 9th report to rebuttal evidence in the event the defense challenged the forensic scientist's statistics based on the fact that the victim had a twin brother. (Tr. 183.) The report from January 9,2001, was not introduced at trial.\\nHudson filed a written objection in the trial court to the admission of the DNA evidence which was the subject of the report provided to him on December 29,2000. The written motion did not rely on constitutional arguments. The Court held a hearing on the motion on January 3,2001. (The Court heard argument regarding an additional DNA certificate on January 10,2001.) Hudson challenged the constitutionality of the provision in Va. Code \\u00a7 19.2-270.5 that states that any continuance granted because a party was late in providing DNA reports shall not be counted for speedy trial purposes under Va. Code \\u00a7 19.2-243. (Tr. 1/3/01 at 37,45,47.) A party must raise the specific allegation at trial that he wishes to pursue on appeal. See Buck v. Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994); Rule 5A:18. An objection thataportion of a statute violates due process is not the same as an objection that the court's ruling on an objection violated due process. Thus, any due process argument raised in the Court of Appeals would be barred by Rule 5A: 18.\\nDefense counsel argued extensively that the victim committed suicide. (Tr. 1308, 1314,1338-1350.) The Commonwealth addressed suicide in its closing argument. (Tr. 1302.)\"}"

va/3783459.json

@@ -0,0 +1 @@
+"{\"id\": \"3783459\", \"name\": \"Bank of Virginia v. Norport Supply Co., Inc.\", \"name_abbreviation\": \"Bank of Virginia v. Norport Supply Co.\", \"decision_date\": \"1969-11-03\", \"docket_number\": \"Case No. (Law) 3250\", \"first_page\": \"456\", \"last_page\": \"458\", \"citations\": \"6 Va. Cir. 456\", \"volume\": \"6\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Norfolk Law and Chancery Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:34:16.833699+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Bank of Virginia v. Norport Supply Co., Inc.\", \"head_matter\": \"LAW AND CHANCERY COURT OF THE CITY OF NORFOLK\\nBank of Virginia v. Norport Supply Co., Inc.\\nNovember 3, 1969\\nCase No. (Law) 3250\", \"word_count\": \"654\", \"char_count\": \"3791\", \"text\": \"By JUDGE EDWARD L. RYAN, JR.\\nWithin twenty-one days of the entry of (summary) judgment in favor of the plaintiff, the defendant moved the court to vacate and set aside said judgment. Within the same period, the court entered an order noting the filing of defendant's written motion and concluding with the following language:\\nAnd the court desiring additional time to further consider and adjudicate upon said motion to vacate said judgment, doth therefore continue said matter until a further hearing may be had by the parties and the court thereon.\\nThe twenty-one days now having expired, the plaintiff says that the judgment has become absolutely final and that this court has no authority to vacate the judgment. In essence, the plaintiff says that failure to \\\"modify\\\" or \\\"vacate\\\" the judgment within twenty-one days results in the finality. Rules of Court (Va.) 3:21.\\nIn Gabbard v. Knight, 202 Va. 40 (1960), the plaintiff filed motions within twenty-one days to set aside the judgments, which the court overruled. The Court of Appeals said the following:\\nHence, at the time of the last motion of the plaintiffs the judgments had not become final and the lower court had full power and authority to inquire into the sufficiency of the evidence to sustain the verdicts and the objections made during the trials on its rulings on the instructions. (Italics added.)\\nIn Lyle and Allen v. Ekleberry, 209 Va. 349 (1968), counsel for defendant, merely by letter, \\\"wrote the judge of the trial court expressing the desire to submit additional authorities and reargue the motion to set aside the verdict.\\\" The Court of Appeals held that this was not sufficient, saying the following:\\nHowever, no order was entered of record vacating or suspending the (earlier judgments), or indicating that the court had under consideration such action. . . .\\nIn Cobb v. Commonwealth, 152 Va. 941, 146 S.E. 270 (1929), we held that where the record showed that a motion to set aside or vacate a judgment of conviction had been made and taken under consideration by the trial court before the judgment had become final, the time for perfecting an appeal ran from the date on which such motion was disposed of. . In the present case the record fails to show that before the judgment of December 22, 1966, became final a similar motion to set aside or vacate it was made and taken under consideration by the trial court. Cf. Gabbard v. Knight, 202 Va. 40, 43, 116 S.E.2d 73, 75 (1960).\\nCounsel's letter of January 6, 1967, to the judge of the trial court, requesting that final judgment be vacated, did not have that effect. An order of the court was necessary. (Italics added.)\\nSee also Smith v. Comm., 207 Va. 459 (1966); Harvey v. C. & P. Tel. Co., 198 Va. 213 (1956).\\nThe order entered in this case indicated \\\"that the court had under consideration such action\\\" (to vacate the judgment), and it was an order \\\"suspending\\\" the earlier judgment.\\nSUSPEND. To interrupt; to cause to cease for a time; to stay, delay or hinder; to discontinue temporarily, but with an expectation of resumption. Black's Law Dictionary, 3rd Ed., p. 1690.\\nFinally, plaintiff says that the action of the court in taking the factual issue from the jury at the conclusion of all the evidence now deprives it of a jury trial and that it is entitled to such by way of a new trial. The court holds, as a matter of law, that no actual fact issue was presented calling for resolution by a jury.\\nThe motion of plaintiff for leave to suffer a nonsuit comes too late and is denied.\\nThe court is entering today (November 3, 1969) an order setting aside the judgment for plaintiff and granting judgment for defendant.\"}"

va/3784920.json

@@ -0,0 +1 @@
+"{\"id\": \"3784920\", \"name\": \"Christopher Lee Lewis v. Roger A. Glover, Jr., et al.\", \"name_abbreviation\": \"Lewis v. Glover\", \"decision_date\": \"1983-06-02\", \"docket_number\": \"Case No. 2856\", \"first_page\": \"67\", \"last_page\": \"68\", \"citations\": \"8 Va. Cir. 67\", \"volume\": \"8\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Washington County Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T21:41:08.076286+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Christopher Lee Lewis v. Roger A. Glover, Jr., et al.\", \"head_matter\": \"CIRCUIT COURT OF WASHINGTON COUNTY\\nChristopher Lee Lewis v. Roger A. Glover, Jr., et al.\\nJune 2, 1983\\nCase No. 2856\", \"word_count\": \"441\", \"char_count\": \"2725\", \"text\": \"By JUDGE CHARLES B. FLANNAGAN, II\\nThis matter is currently before the court on the defendant Dr. Glover's motion to strike paragraph VII of the amended motion for judgment. Defendant Glover contends that the Notice of Claim of Medical Malpractice, given pursuant, to the Code of Virginia, 8 8.01-581.2, gave notice of a claim for medical malpractice occurring prior to the time of the infant's birth, whereas, paragraph VII of the amended motion for judgment makes a claim based on acts of malpractice occurring subsequent to the infant's birth, specifically, negligence in resuscitation efforts on the infant.\\nOn March 7, 1983, the court entered an order permitting the amended pleading. However, at the time of the entry of that order, counsel for defendant Glover appeared and orally objected to the amendment on the grounds now cited. The court ruled that the amendment would be allowed, but that defendant Glover would be permitted to raise the issue by formal pleadings. Subsequently, defendant Glover filed a motion to strike paragraph VII, which motion was argued on May 19, 1983.\\nThe Code of Virginia 8 8.01-581.2 provides that no action may be brought for medical malpractice unless the claimant notifies the Health Care Provider in writing of his claim prior to commencing the action. Specifically, that Code Section requires that \\\"the written notification shall include the time of the alleged malpractice and a reasonable description of the act or acts of malpractice.\\\"\\nIn the case at bar, the Notice of Claim of Medical Malpractice given to defendant Glover details the acts complained of, stating precise times of occurrences. The negligence detailed in the notice ranges from inadequate prenatal office treatment to failure to give adequate attention between the time of the mother's admission to the hospital and the time of a forceps delivery of the infant claimant:\\nwho had by that time sustained irreversible brain damage caused by placental insufficiency and other related, complicating conditions, all of which resulted from the failure of the Hospital and Dr. Glover to provide proper medical care and treatment to Mrs. Lewis and her unborn child. Notice of Claim, p. 3. (Italics added.)\\nThe court is of the opinion that the Notice given did not provide a reasonable description of a claim that defendant Glover was negligent in failing to provide \\\"proper and effective resuscitation\\\" to the infant and plaintiff is not in compliance with Section 8.01-581.2 of the Code. Accordingly, defendant Glover's motion to strike paragraph VII of the amended Motion for Judgment will be granted.\"}"

va/3785662.json

@@ -0,0 +1 @@
+"{\"id\": \"3785662\", \"name\": \"Commonwealth of Virginia v. Garland Hornbaker; Commonwealth of Virginia v. Byron Hornbaker\", \"name_abbreviation\": \"Commonwealth v. Hornbaker\", \"decision_date\": \"1985-01-30\", \"docket_number\": \"Cases No. (Criminal) 4491, 4492\", \"first_page\": \"183\", \"last_page\": \"185\", \"citations\": \"6 Va. Cir. 183\", \"volume\": \"6\", \"reporter\": \"Virginia Circuit Court Opinions\", \"court\": \"Loudoun County Circuit Court\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-11T00:34:16.833699+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Commonwealth of Virginia v. Garland Hornbaker Commonwealth of Virginia v. Byron Hornbaker\", \"head_matter\": \"CIRCUIT COURT OF LOUDOUN COUNTY\\nCommonwealth of Virginia v. Garland Hornbaker Commonwealth of Virginia v. Byron Hornbaker\\nJanuary 30, 1985\\nCases No. (Criminal) 4491, 4492\", \"word_count\": \"646\", \"char_count\": \"3788\", \"text\": \"By JUDGE THOMAS D. HORNE\\nThe defendant has filed several motions which are presently before the Court for review. Counsel have submitted written memoranda of law. These motions include a motion to suppress evidence seized as a result of a warrantless automobile search on May 4, 1984; a motion to suppress evidence seized as a result of a search conducted pursuant to a warrant; a motion to dismiss on grounds of entrapment; and a motion to dismiss pursuant to Section 19.2-294, Code of Virginia, 1980 amended.\\nThe Court finds that the issue of entrapment should properly be raised at trial. See generally Bacigal, Virginia Criminal Procedure, \\u00a7 17-29. Accordingly, the Court will deny the motion to dismiss on grounds of entrapment, with leave to the defendant to raise such defense at the time of trial.\\nThe Court finds that the defendants do not have standing to object to the search of Mr. Moreland's car or the subsequent seizure of certain items from the trunk. Rakus v. Illinois, 439 U.S. 128 (1978); United States v. Salvucci, 448 U.S. 83 (1980); Rawlings v. Kentucky, 448 U.S. 98 (1980). Therefore, the Court will deny the motion to suppress the evidence relating to the seizure of various items from the trunk of the car.\\nThe Court finds that the affidavit for the search warrant states sufficient articulable facts to satisfy the \\\"totality of the circumstances\\\" criteria of Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). See also United States v. Leon, 468 U.S. 897, 35 Cr. L. 3273 (1984). Furthermore, the warrant is not a \\\"general warrant.\\\" Andresen v. Maryland, 427 U.S. 463 (1976); United States v. Ladd, 704 F.2d 134 (4th Cir. 1983).\\nThe warrant is an \\\"independent source\\\" sufficient to remove any taint of the prior entry by the police. Segura, et al. v. United States, 468 U.S. 796, 35 Cr. L. 3298 (1984). Assuming, without deciding, the illegality of the prior entry, it would be \\\"wholly irrelevant\\\" to a determination of the propriety of the seizure under the warrant. Segura, supra at 3303, (\\\"fruit of the poisoned tree\\\"). Accordingly, the Court will deny the motion to suppress those items seized pursuant to the search warrant.\\nThe defendant Garland Hornbaker, was arrested by federal law enforcement officers on May 4, 1984. His detention after the stop of the Moreland vehicle was such that any \\\"reasonable person would have believed he was not free to leave.\\\" Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); United States v. Mendenhall, 446 U.S. 544 (1980). An arrest is the initial stage in a criminal prosecution. Terry v. Ohio, 392 U.S. 1 (1968). Under the provisions of Section 19.2-294, it is provided that:\\nif the same act be a violation of both a state and a federal statute, a prosecution or proceeding under the federal statute shall be a bar to a prosecution or proceeding under the state statute.\\nThis arrest was within the parameters for pre-emption under the statute. Sigmon v. Commonwealth, 200 Va. 258 (1958). As the federal officers had made an arrest (whether they later released the defendant before taking him to a magistrate), then this action was a bar to a state prosecution for the same acts, as would have provided probable cause for the arrest. Therefore, as to the defendant Garland Hornbaker, the Court will limit the evidence of the Commonwealth so as to exclude testimony or exhibits relating to the events of May 3 and 4, which preceded his arrest. The exclusion of such evidence will not, however, operate to dismiss the indictment as drawn. The Court will deny the motion with respect to Byron Hornbaker.\"}"