The Sunday telegram. [volume] (Clarksburg, W. Va.) 1914-1927, 1916-02-27
SUPREME COURT
DECISIONS MADE

jury, and find documentary evidence
facts or circumstances. or some Of
these, which when considered with
such conflicting oral evidence plain
ly constitute decided weight and
preponderance Of evidence against
the verdict.
Where the circuit court sets aside
verdict Of jury on the ground
that 1t is contrary to the law and the
evidence. and it appears that the ac-
ton OF the court in setting aside the
verdict was plainly wrong. this courl
will reverse such judgment and enter
Judgment in this court upon the YER
Dict
Lawrence, administrator, against
Hyde, Preston county; reversed; re-
handed: new trial awarded; Poffen-
barger judge.
"Ayerments in a declaration against
master for damages for wrongful
death Of his servant, Of higher de-
gree Of duty on the part OF the master
10 provide for the safety of the serv-
ant than the law imposes, do not VI
tiatc it.
"FOr the purposes Of demurrer
TO such declaration. the law itself
raises the ordinary duties of the mast
err to the servant. from allegation to
the relation of the parties, and pc
cuiar duties from allegation Of the
facts imposing them, wherefore, in
neither case is there necessity OF OK
press averment OF the duty
"Averment OF matter in a declara-
ton in tort. beyond what is necessary
to give a right of action, by reason OF
the use OF words too broad in mean
ing. or redundant phrases or clauses,
is treated as surplusage.
ain a declaration for inquiry by
negligence, 1t suIices to allege the
facts from which the law imposes
tuty, an act or omission constituting
in law a breach of the duty and the
resultant injury.
"a witness interested adversely to
the administrator, in the result Of an
action for damages for wrongful
death. is incompetent to testify against
the latter, in regard to a personal
communication between himself and
the person alleged to have been wrong
fdlly killed.
AN opinion of witness, founded
upon a matter the evidence does not
tend to establish, is not admissible
as evidence.
Expert opinion evidence concern
ing a matter as to which the jury are
as competent to form an accurate
opinion as the witness, is inadmis-
sihIe
AN instruction based upon an ac-
tlonable matter neither pleaded nor
proved, is erroneous.
IAN instruction so general and in
defEite in its terms as to involve sub
mission OF matter Of law, to the jury,
for determination, is erroneous"
State on behalf Of First National
Bank against Hamilton. sheriff, Mer-
Ger county; writ refused; Poffenbarg-
er. Judge:
Section 8 of chapter SIS OF the acts
OF 1915, authorizing boards OF educa-
ton and other fiscal tribunals to pro-
eide by special levies for payment Of
outstanding unpaid orders drawn pre-
vious to July l, 1915. and saying such
lewis may be continued For as many
years as may be necessary to pay OFF
such debt and the interest that may
accrue thereon does not give or create
any new right to interest on such or
ders The provision for interest ex-
tends only to rights to interests based
upon law outside OF and beyond said
act.
School orders do not, in any case,
Lear interest. The provision of sec
ton Jas. chapter As, the CODE requir
ing endorsement of such orders, by
the sheriff, on presentation thereof,
does not make them bear interest
against the issuing boards, after en-
dorsement. 1t merely inflicts a pen
atty on the sheriff for non payment on
presentation"
State against Jones; Tucker coun-
~; Judgment affirmed; Lynch Judge:
Rulings Of the trial court on the
ACCESSIBILITY OF evidence will not be
considered on writ Of error, unless
the evidence admitted or rejected is
made part OF the record by special
bits OF exception or assigned as cause
for new trial on a motion therefor
although all the evidence is made part
of the record by general bill of ex-
ccpions.
AN instruction, though correct
principle, is properly refused, where
It's subject matter is fully covered by
other instructions given in the case"