Oliver D. Kessel

This case involved a personal injury lawsuit by Carlton Shields against Church Brothers, Inc., after a bulldozer operated by the defendant's employee struck a log that whipped around and fractured the plaintiff's leg while clearing land. A jury returned a small verdict covering only the plaintiff's hospital bill, which the trial court interpreted as inadequate and set aside, ordering a new trial solely on damages. On appeal, the court reversed that order, holding that the jury verdict should be treated as a finding for the defendant on liability (perversely expressed due to contributory negligence or lack of proximate cause) and reinstated it with judgment for the defendant. The reasoning centered on the principle that new trials limited to damages are appropriate only when liability is clearly established and separable, which was not the case here given the evidence of the plaintiff's awareness of the risks.

torts & liabilityprocedure

This case involved Lester Rollings Haines, who was indicted and convicted of armed robbery under West Virginia law for an incident where he and two others allegedly assaulted Austin B. Greer and stole five dollars. The defendant was tried separately as a principal in the second degree for aiding and abetting, receiving a ten-year sentence, while the principal in the first degree was convicted only of assault and battery. The court reversed the conviction and ordered a new trial, holding that the evidence showed only the defendant's mere presence at the scene without any act of participation, consent, or encouragement, which is insufficient to support a conviction beyond a reasonable doubt.

criminal lawprocedure

This case involved plaintiff Taylor E. Hines suing multiple defendants, including members of the Hoover family and The Sun Lumber Company, seeking specific performance of an alleged oral contract to convey about 600 acres of land in exchange for caretaking services or, alternatively, damages for breach. The trial court granted summary judgment to the defendants, finding no enforceable contract due to the statute of frauds, the dead man's statute, lack of agency authority, and laches. On appeal, the court reversed the summary judgment and remanded the case. The appellate court held that genuine issues of material fact existed regarding the existence of any contract, the agency relationships involved, and related matters, making summary judgment improper because the trial court had impermissibly weighed the evidence by a preponderance standard rather than determining whether disputed facts precluded judgment as a matter of law.

propertyprocedure

This case is an original habeas corpus proceeding in which relator Tweel Browning sought release from a one-year jail sentence imposed by the Circuit Court of Boone County for criminal contempt. The underlying incident was a physical altercation between Browning and attorney Jerry W. Cook that occurred in the circuit clerk's office on April 26, 1972, during a heated discussion about absentee voting and election matters; the judge ordered Browning's immediate arrest and conducted a summary contempt hearing without prior written notice or counsel. The court held that the conduct did not satisfy the statutory requirements for summary contempt under W. Va. Code § 61-5-26, as it did not occur in the presence of the court so as to obstruct justice and the attorney was not shown to have been attending court in respect of a pending proceeding, and the evidence failed to prove guilt beyond a reasonable doubt. Accordingly, the court discharged Browning from custody. The opinion also notes that any fine or imprisonment for such contempt without a jury is limited to $50 or ten days.

criminal lawprocedureelections

This case involved a civil lawsuit by Mary Bell Orndoff and her husband for personal injuries, medical expenses, and loss of consortium after she was struck by a car driven by defendant Teddy Rowan while crossing University Avenue in Morgantown, West Virginia. The trial court entered judgment on a jury verdict awarding the plaintiffs damages against Rowan and his insurer. On appeal, the court reversed the judgment, set aside the verdict, and ordered a new trial. The core reasoning was that the plaintiffs' case and the trial court's jury instructions presupposed the existence of a legal crosswalk at the accident site, but the record showed no such marked crosswalk had been established or approved, rendering the instructions unsupported by evidence and prejudicial.

torts & liabilityprocedure

The case involved a pedestrian, Roy Lee Thomas, suing Louise Ramey for personal injuries after being struck by her car at a marked crosswalk on Heber Street in Beckley, West Virginia; the United States intervened to recover medical expenses it had paid. A jury returned a verdict for the defendant, but the trial court set it aside and ordered a new trial on the grounds that it had improperly refused a peremptory instruction for the plaintiff and had given instructions on contributory negligence. The Supreme Court of Appeals affirmed, holding that the defendant was guilty of primary negligence as a matter of law because she violated a city ordinance requiring drivers to yield to pedestrians in crosswalks and that, under the undisputed facts, the plaintiff was not contributorily negligent as a matter of law.

torts & liabilityprocedure

The case involved a coal miner seeking additional workers' compensation benefits after a 1961 back injury and multiple prior injuries, including a challenge to whether he had been fully compensated by a prior 20% permanent partial disability award and whether he qualified for total permanent disability under the second injury statute. The court affirmed the ruling that the claimant had been fully compensated for the back injury by the prior award but reversed the denial of total permanent disability, directing that such an award be granted with the remainder charged to the second injury reserve. The core reasoning was that uncontroverted medical reports from several physicians established total permanent disability from the combined effects of all injuries, the employer's evidence addressed only the recent injury, and precedent required liberal interpretation of the remedial compensation statutes, rendering the appeal board's findings plainly wrong.

labor & employment

This case is a habeas corpus proceeding in which relator Charles Varner sought release from custody after being held in contempt by the Circuit Court of Monongalia County for failing to pay court-ordered alimony of $125 per month to his former wife. The relator argued he was physically and financially unable to comply due to a severe heart attack that left him totally and permanently disabled, with his only income now consisting of limited Social Security and union disability benefits. The Supreme Court of Appeals of West Virginia granted the writ and ordered his release, reasoning that the circuit court had abused its discretion by not adequately considering the material change in the relator's circumstances, including his reduced income and health condition, and that imprisonment for contempt is inappropriate when the party is not contumacious and lacks the ability to pay.

family lawprocedure

This case was a wrongful death action brought by the administratrix of an 18-year-old painter who was electrocuted when he contacted uninsulated 12,000-volt power lines owned by the defendant utility while painting the roof of a private home. The jury returned a verdict for the plaintiff in the amount of $11,171.98, which the trial court entered as judgment. The Supreme Court of Appeals affirmed, finding the evidence sufficient to support the verdict on the issues of the defendant's negligence in the placement and maintenance of the wires and the absence of contributory negligence or assumption of risk by the decedent. The core reasoning addressed the adequacy of jury instructions on these points when considered as a whole and the visibility and proximity of the wires to the work area.

torts & liability

This case involved an appeal from the Circuit Court of Mercer County, which had set aside a jury verdict and judgment from the Intermediate Court in a civil action brought by plaintiff Paul Hudgins against Crowder & Freeman, Inc. and Ford Motor Company. The circuit court purported to reverse the intermediate court's judgment favoring Hudgins against Ford and remand for a new trial, but did so without entering a required order granting a writ of error under W. Va. Code 58-4-7, without fixing or requiring a bond under 58-4-13, and without other procedural steps mandated by Article 4, Chapter 58 of the Code. The West Virginia Supreme Court held that these statutory requirements are mandatory and jurisdictional, so the circuit court's actions were void for lack of jurisdiction. As a result, the court granted the motion to set aside the circuit court's judgment, held it for naught, and reinstated the intermediate court's judgment in favor of Hudgins.

procedure

This case involved a dispute over indemnification after neighboring property owners sued for damages to their real estate caused by negligent excavation during warehouse construction in West Virginia. McCarthy Construction, the general contractor found liable for the damages, sought to recover from its subcontractor Earp & Shriver under a clause in their subcontract requiring the subcontractor to indemnify the contractor against claims arising from accidents occasioned by the subcontractor. The trial court dismissed the cross-claim, ruling that the indemnity provision was not sufficiently clear and unambiguous to require Earp to cover McCarthy's own negligence. On appeal, the court affirmed, holding that such agreements must explicitly demonstrate the parties' intent for one party to indemnify the other for its own negligent acts, and the language here fell short of that standard.

propertytorts & liabilitybusiness & regulatory

This case was a prohibition proceeding in which Thomas W. Wren sought to bar the Intermediate Court of Kanawha County from trying him on three misdemeanor indictments for driving under the influence, hit and run, and public intoxication. Wren had been convicted on the underlying charges by a justice of the peace, appealed those convictions to the intermediate court, and the state later dismissed the appeals before obtaining the indictments on the same matters. The court awarded the writ, holding that Code 1931, 62-3-21 required discharge from prosecution because three regular terms of court had passed after the term in which the appeals were filed without a trial and without any statutory excuse such as a continuance by the accused or unavailability of witnesses. The statute's three-term rule was found to apply directly to appeals from convictions before a justice of the peace.

criminal lawprocedure