Volume 93 — West Virginia Reports

<p>1. Judgment — Motion foe Judgment — 'Notice.</p> <p>■A notice of motion, for judgment, under sec. 6, Chap. 121, Code, must indicate witli reasonable certainty the nature or basis of the demand or obligation which it is proposed to reduce to judgment, and that the same is due and owing by the defendant to the plaintiff; and if it does not, a demurrer thereto should be sustained with leave to amend.</p>

<p>1. Judgment — Decree -Founded on Petition try Stranger Contemning Few Matter Without Notice.</p> <p>A petition filed by a stranger in a cause, asking for relief against a defendant therein on new matter contrined in suck .petition, must .he filed- hy leave of court, must make defendant a party to it, and process to answer it must be served on such .defendant, unless waived hy appearance or otherwise; a decree against the defendant founded on such petition, without process served or waived is void, and will he reversed in this court on appeal, (p. 175).</p> <p>2. Fraudulent Conveyances- — Presumption Against Bona Fieles of Transaction of Wife’s Purchase of Land in Contest With Creditors of Husband Not Overcome Except by Convincing Proof.</p> <p>W-hen a wife claims in a contest) against the creditors of her husband to have purchased land there is a presumption against the bona fides of the transaction, which she can not overcome except by clear an'd convincing proof that the property was paid for by her with money derived from some source other than her husband, (p. 176).</p> <p>3. Evidence — Failure to Call Witnesses to Support Allegation Raises Presumption That Testimony Unfavorable.</p> <p>Where the wife claims to have made the money by carrying on a separate business, hér failure to calí witnesses with whom she alleges she had business dealings, to testify in her ■behalf, raises a presumption that their testimony would have been unfavorable, (p, 177).</p> <p>4. Fraudulent Conveyances — Wife’s Failure to Affirmatively Establish That. Property Was Purchased With Her Sepamte Estate Warrants Decree for Creditors of Husband.</p> <p>Under such circumstances, the assailing creditor is not required to -show that the husband did actually furnish the money; a showing that he could have done so and a failure of (the wife to show 'by clear and full proof that he did not do so, but that the moneys were derived from some other source than her husband, warrants a court of equity in setting aside a deed on the ground that the property was purchased by funds furnished by the husband at the expense of his creditors, (p. 177).</p> <p>5. Appeal and Error — Deei'ee Prematurely Entered Under Misapprehension of Law. Remanded.</p> <p>Where the record1 of a chancery cause discloses that a de- . cree was prematurely entered, before the merits of the cause had been properly developed upon the vital issue involved and that there is a strong probability of the existence of evidence decisive thereof, which counsel under a misapprehension of law have failed to adduce, the court will reverse the decree and remand the cause for further proceedings, (p. 179).</p>

<p>Petition by the Berkeley Springs Waterworks against the Public 'Service Commission of West Virginia and another. On petition to review an order of defendant fixing water rates.</p>

<p>1. Indictment and Information — Indictment Ofowging Felonious Assault Held Sufficient.</p> <p>An indictment which lays the proper venue, and charges that certain persons therein named, on a stated day and year, in the county aforesaid, did feloniously and unlawfully combine, conspire and confederate together for. the purpose of inflicting punishment and bodily injury upon G-. A., and that in pursuance of said combination, conspiracy and confederation, they, naming the persons, on that day and year, in and! upon one, W. A., the son of G. A., an assault did make, and him the said W. A. then and there feloniously, unlawfully and maliciously did shoot, cut, etc., with intent the said W. A. then and there to maim, disfigure, disable and kill, against the peace and dignity of the state, is good upon demurrer, (p. 185).</p> <p>2. Conspiracy — If Act of Conspirator in Carrying Out Common Purpose Terminates in Criminal Result, Though Not Intended. All are Liable.</p> <p>Where there is a combination and conspiracy between two or more persons tó commit a crime, i£ the act of one done in carrying out the common purpose and design terminate in a criminal result, though not the particular result intended, all are liable, (p. 188).</p> <p>S. Assault and Battery — Where Evidence That Accused Acted in Self-defense, Instructions Properly Presenting Defense Should be Given, Although Evidence Preponderates for Prosecution.</p> <p>If, in a prosecution for a crime resulting from an alleged conspiracy, there is evidence tending to show that no conspiracy was formed, and that the accused was acting in self defense when the alleged crime was committed, it is not error to refuse an instruction which does not properly propound the law of such defense. If, however, the instructions properly propound the law of self defense they should be given, although the evidence may preponderate in favor of the prosecution, (p. 188).</p> <p>4. Same — Instruction That Burden on Accused to Show That Conspiracy Did Not Exist and That the Injury was Not Inflicted Held Erroneous.</p> <p>Under such indictment it is error to instruct the jury that if they believe the prisoner unlawfully assaulted and inflicted 'bodily injury upon W. A., and that others jointly indicted with' him were present when the assault was made, aiding and abetting, then the jury may presume that such assault was made and the injury inflicted in pursuance of a combination and conspiracy; and that if the jury finds that such facts existed, then the burden is upon the prisoner to show that such conspiracy did not exist and the injury was not inflicted in pursuance thereof; and unless he does so, or it appears from the whole of evidence and circumstances, they should find the prisoner guilty as charged in the indictment. (p. 194).</p> <p>5. Criminal Law — Instructions Must Not Submit Question of Law to Jury.</p> <p>An instruction must not submit a question of law to the jury.</p>

<p>1. Master and Servant — Master Not Liable for Injuries to Servant’s Invitee on Truck.</p> <p>A master is not liable for personal injuries sustained by one invited by bis servant to ride on bis truck without actual or ostensible authority to do so, when not acting within the scope of his duties, (p. 204).</p> <p>2. Same — Master Liable for Willful Injuries to Servant’s 'Invitee on Truck.</p> <p>But notwithstanding this general rule, if such servant after so inviting one to ride with him, and while operating such truck within the general scope of his authority, does so in a wanton, wilful and reckless manner and thereby injures his invitee, the master is liable for the injuries • thus inflicted, (p. 205).</p> <p>3. Same — Masters Duty to Servant’s Invitee Stated.</p> <p>The general rule is that a master owes no other duty to one who is a trespasser or a mere licensee or invitee of his servant except not to wantonly and wilfully injure him. (p. 206).</p> <p>4. Same — Evidence of Willful Injury to Servant’s Invitee Held Insufficient.</p> <p>In this case the evidence was insufficient to show such wanton and wilful conduct. on the part of the servant in driving his truck as to render the master liable for the injuries sustained by plaintiff’s intestate, (p. 207).</p> <p>5. New Trial — Verdict May be Set Aside Where Answers to Improper Questions Not Disavowed by Counsel Although Jury Admonished to Disregard them.</p> <p>When counsel engaged in the trial of an action for personal injuries persists in asking questions of witnesses calling for testimony manifestly irrelevant! and improper, and some of which questions are answered by them, the court may, if they are not disavowed by counsel and the effect of such evidence thus expunged, set aside the verdict on that ground, though the jury have been told not to regard such improper questions and answers, (p. 207).</p>

<p>1. Deeds — Construction of Deed by Parties Adopted. '</p> <p>Where a deed for a right of way for a double track railway is ambiguous^ and uncertain as to the width of the right of way. hut the parties thereafter treat the right of way so granted as being 100 feet wide, the court will adopt the practical -construction placed-thereon by the parties, (p. 263).</p> <p>2. Same — Grantor’s Construction of Right of Way — Grant Shoxon by Subsequent Deeds.</p> <p>' Subsequent deeds .made by the same grantor, some to tlhe railway company, and others to third parties, recognizing and adopting the 100 feet width may be .looked to as evidence of the grantor’s construction of the original grant of the right of way. (p. 264).</p> <p>3. Same — Grantor Held to Have Reeogmeed Width of Right of Way.</p> <p>Where an owner grants a right of way for a double track railway, so that the width thereof is ambiguous and uncertain and afterwards conveys land owned by her adjacent, to the right of way, describing it as “beginning at a stake on the west side of the railroad and fifty feet from, the center of said railroad,” she unequivocally recognizes the right of way therefore .granted adjacent to such parcel as being 100 feet wide. (p. 264).</p> <p>4. Raileoads — Grant of Right of Way Garries Only Easement.</p> <p>A grant of a -right of way to a railroad carries only an . easement in the land and not the fee.</p> <p>5. Easements — Occupation of Part of Right of Way Ch'anted to Railroad Presumed to he Permissive.</p> <p>Occupation of a part of such, easement by the owner of the adjacent property as a road- until it is needed for the operation of the railroad is. presumed to be permissive and not adverse. (p. 264).</p> <p>6. Highways — Mere Use of Road by PubUc Will Not in Absence of Dedication, Constitute it Public Road Without Acceptance of it by PubUc Authority.</p> <p>But the mere use of a road by the public for however long a period, in the absence of a dedication for that purpose will not make it a public road. There must be some acceptance of it by .public authority, having charge of .public roads, before it can ¡be deemed a public road, binding the public authority for its care and maintenance, or a dedication thereof by the owner. ' (p. 264).</p> <p>(-Lively and McGinnis, Judges, absent).</p>

<p>'1. Principal and Agent — One Dealing With Agent is Bound to Know Sis Power to Act and Extent of Agency.</p> <p>Generally, where one deals wi-thj an agent he is bound to know the -power and authority of the agent to act, and the extent of the agency; he deals at his -peril, (p. 26-9).</p> <p>2. Mines and Minerals — Supemntendent of Employees in Mining and Loading Coal Mas no Implied Power to Purchase Expensive Mining Machinery; Power of Superintendent of Employees in Mining and Loading Coal to Purchase Expensive Mining Machinen-y Cannot he Inferred From Fact That he Manages Ordinary Business of Company.</p> <p>A superintendent of a coal mining corporation ita charge of the employees and the mining an'd loading of coal has no implied power to .purchase expensive machinery for use at the mine. -Such power cannot be inferred from the fact that he manages the ordinary business of ’Eñe -company in producing and loading coal. (p. 270).</p> <p>3. Same — Mining Corporation Held not Bound hy Purchase hy Superintendent of Mining Machinery.</p> <p>Where a coal mine superintendent agrees to purchase expensive machinery upon condition that it will perform the work for which.it is purchased, and -the machinery is taken into hi's possession and on -trial demonstrates its capacity to perform -the work; -but as soon as its presence and purpose on the company’s property is ascertained -by the' mining corporation, it immediately repudiates -the alleged purchase, an'd d-jrects the machinery to be removed from its property, and proffers to pay for whatever 'benefits the corporation received from *he use of the machinery while on trial, and 'the machinery Is no longer used by it after that time, the corporation has not ratified the purchase, an'd will not be bound thereby; it clearly appearing that such alleged putrchase was not authorized by the corporation and was not within the ordinary duties of the mine superintendent, (p. 271).</p> <p>(,McGinnis, Judge, absent.)</p>

<p>Petition by.tbé State, on the relation of Fred Noce, against P. L., Blankenship, Sheriff • of Raleigh County, and. others, that defendants be ruled to show cause why a writ should not be awarded against defendants prohibiting any further action to enforce a judgment against plaintiff by execution or otherwise.</p>

<p>1. Homicide — Objection to Evidence That Deceased Had Large Roll of Money Short Time Before Homicide, as too Uncertain as to Amount, Where Motive Robbery, Held Properly Overruled.</p> <p>Where on the trial of one accused of murder the theory oi< the State is that the motive for the alleged crime was robbery of the deceased, and in support of that theory the State introduced a witness who testified that he had seen the deceased a short time before the homicide. at his store or place of business with a large roll of bank bills, the objection of the defendant thereto on the ground that such evidence was too indefinite and uncertain as to the amount of money and. tended to mislead the jury, was properly overruled, (p. 280).</p> <p>2. Sake — Statements Made Causa Mortis Held Admissible as Dying Declaration.</p> <p>If, at the time, one is conscious of liis condition and is told by bis attending physician that be bas but a sbor-t time to live, and be himself is weak and in great pain as the result of a mortal wound inflicted by defendant and declares that be is going to die and calls for bis wife, and says to the physician that be wants to make a statement and does so, and shortly afterwards expires, a prima facie case is thus made for the admission of such-dying declaration in evidence on the trial of the one accused of bis murder, -(p. 282).</p> <p>3. Same — Evidence That Deceased Had Family Held Admissible-</p> <p>On the trial of one accused of murder, evidence that deceased bad a family would ordinarily have no bearing on the question of defendant’s guilt or innocence of the crime, and should not be admitted; but where the defense is self defense and that defendant was lead to the killing by the sudden provocation of seeing bis wife and deceased in the act of adultery, such evidence may have some slight bearing on the question of fact whether one with a family was likely to engage in such immoral conduct, (p. 284).</p> <p>4. Witnesses — •.Proper to Gross-Examine Accused as to Giving Deceased Liquor, Where Imputation That Deceased Provided it to Aid His Immoral Conduct With Wife of Accused.</p> <p>Where on his examination in chief the defendant testified ■that deceased had brought liquor to .his home, from which both drank before the homicide, it was competent for the State to inquire of him on cross examination whether he had not -himiself provided the liquor and given it to the deceased to drink, when the imputation was that deceased had ■ provided the liquor for the purpose of. aiding him in his subsequent immoral conduct with defendant’s wife. (p. 28S).</p> <p>5. 'Homicide — Where Robbery Alleged Motive, Error to Exclude Testimony That Deceased Deposited Money Alleged Taken ' Before Homicide.</p> <p>Where on the State’s theory of robbery it is permitted to show that shortly before the homicide deceased had money on his person in a considerable amount,..which was not found-on him immediately after the homicide, it constitutes reversible error for the trial court to reject evidence offered' by defendant showing or tending to show that deceased on the evening of the same day had deposited in bank to his credit a considerable amount of currency and checks, thereby to account.-for the absence of the money from his -person after the homicide, (p. 285).</p> <p>McGinnis, Judge, absent.</p>

<p>Andy Goldizen was convicted of murder in the second degree, and he brings error.</p> <p>Error to- Circuit Court, Grant County.</p>

Certified Questions from the Circuit Court,, Barbour County. Suit by C. R. McCoy and others against Emma Ward and others. On certified questions on order overruling1 demurrer to defendant’s answer. '■

<p>1. Executors and Administrators — ■Relative Cannot Recover for Services and Support Rendered Decedent Without Proof of Express Contract.</p> <p>Without proof of an express contract therefor, or proof direct, positive and unambiguous of facts) and circumstances from which it may reasonably be inferred that there was a clear understanding that a decedent expected' to pay and piaintiff expected to receive compensation for his maintenance and support, a son or daughter or near relative with whom such decedent has made hi's home can not recover from his estate for the services an’d support thus rendered, (p. 346).</p> <p>2. New Trim. — Verdict on Conflicting Evidence Not Disturbed.</p> <p>. When the burden of proof so imposed has been borne by one suing for such maintenance and support, the verdict of the jury on conflicting evidence should not be set -aside on the motion of the personal representative sued for the value of such maintenance and support of hi's decedent, (p. 348).</p> <p>3. Appear and Error — Documentary Evidence Must be Made Part of the Record by a Proper Bill of Exceptions.</p> <p>If on the trial of such. an action the defendant offers or proposes to offer evidence of , the record of a prior judgment in favor'of the plaintiff’s wife in whole or in part, for the same services or support and such evidence is rejected, to avail himself here on writ of error of any error in the rulings of the circuit court, such documentary evidence must be made a -part of the record by proper bill of exceptions or in some other way, -so that this court may be able to determine whether the party complaining .was prejudiced thereby, (p. 348). .</p> <p>4. Limitation '-of Actions — Limitations Held Not to Begin to Run Until After Death of Promissor in Contract to Pay for Support of Decedent.</p> <p>Where the only contract proved or attempted to be proved in such a case was that payment was not tó be made until after the 'death of the decedent, the statute of limitations does not begin to run until after the death of 'the promissor. (p. 349).</p> <p>5. Trialr^-WTien General Verdict is Complete Answer to Proposed Interrogatories, Not Erroneous to Refuse to Sttbmit Them to the Jury.</p> <p>If the general verdict of the jury will furnish a complete answer to interrogatories proposed, no error will .be committed ■by the trial court in declining to submit such interrogatories to the jury. (p. 349).</p>

<p>1. Criminal Law — Offense Committed in County Where Second Marriage, Constituting the Crime, is Consummated.</p> <p>Under section 1, chapter 149, Code, providing that “Any person being married, who, during the life of the former husband or wife shall marry another person in this State, or if the marriage with such other person take place out o.f this State, shall thereafter cohabit with such other person i;n this State, shall be' confined in the penitentiary not less than •on’e nor more than five years”, when the second marriage is celebrated within this State, the offense is' committed in the county in which such marriage takes place, (p. 353).</p> <p>2. Same — Courts of County Where Second Marriage Solemnized Save Exclusive Jurisdiction.</p> <p>In such case the courts of the county in which such second marriage is solemnized alone have jurisdiction to try and punish the offender, (-p. 364).</p> <p>3i Same — One Held on Bigamous' (dharge Committed in Another County Should he Discharged on Habeas Corpus.</p> <p>A person held in custody by the sheriff of Kanawha county to await the action of the grand' jury of that county, on a warrant issued toy a justice of the same county, charging him with having entered into a bigamous marriage in Logan county and thereafter cohabiting with the spouse of such marriage in Kanawha county, should b© discharged on habeas corpus, (p. 355.)</p>