The Sunday telegram. [volume] (Clarksburg, W. Va.) 1914-1927, 1916-04-09

crime is SUFFICIENT II 1t charges It in
the Language OF the statute.
2. By introducing his own evil
dence. after the court has overruled
his motion to strike out plaintiffs
evidence. defendant valves the
error, II any, in the courts ruling.
8. Proof OF facts and circum-
stances tending to arouse suspicion.
but which do not prove the actual
commission Of the crimo charged,
will not sustain verdict OF guilty.
Watts VS.. Ohio Valley Electric
Railway Company; Cabcll county;
affirmed; Williams, president.
l. In an action against an en-
ployer. subject to the wogkmen's
compensation act. for an injury re-
ceived by one OF his servants. the
declaration is good, II its averments
show the injury was the direct re-
suit Of negligence on the part OF some
employee or officer, other than plain
till. or resulted from the negligence
OF such other combined with his own.
2. Negligence is the basis OF such
action: and. II plaintiffs, injury is
due wholly to his own negligence, he
can not recover. But section IS OF
| the act, makes the employer liable,
not only for his own negligence. but
also for the negligence OF any Of his
officers. agents or other employees,
and denies to him the common law
defenses OF contributory negligence,
assumption Of risk and negligence OF
fellow servant.
3. The workmen's compensation
act does not violate any OF the en-
ployer's constitutional rights. by de-
nying to him the aforesaid defenses.
4. An electric railway company
| which operates an urban car line,
and also other lines connecting there
with and extending into another state,
is both an interstate and an inter-
state carrier. But the federal en-
ployers' liability act does not apply in
the case OF injury to servant OF such
company. who is operating street
car, confined to the urban lines and
not. at the time of injury. carrying
interstate passengers or traffic. To
make the federal act applicable, the
injured servant must be engaged in
Interstate commerce at the time OF
injury.
8. In an. action for personal in
jury, where the jury has returned a
verdict for plaintiff. the defendant
has moved to set 1t aside on the
ground that the damages assessed
are excessive. It is reversible error to
compel plaintiff to remit portion OF
the damages on pain OF having the
verdict set aside, and to enter judy
ment for the balance.
Werningcr VIZ. City Of Huntington;
Cabell county,. decree. reversed;
cause remaided; Lynch, Judge.
/. To a bill to enforce the lien OF
municipal sewer assessment against
the property benefited by the i'm
provement, one holding lien on the
land, by virtue of a will, for the pay
ment Of legacy charged thereon is
a necessary party; and mis- commission
as such renders the bill bad on de-
murrer. ~
2. Where city, enormously but
In good faith assuming an alley to be
a public one, constructs therein a
sewer, without first acquiring title
to the soil of the necessary easement
therein, such unlawful entry and ap-
preparation, in the absence OF protest
or objection by the landowners with
knowledge thereof, do not alone con-
stitute defense to a suit for the
enforcement Of the special assess
ment lien, II the city has power under
its organize law subsequently to
acquire the easement by condemna-
ton.
8. Nor can such defense be as
serted where the landowners, with
full knowledge of the encroachment,
failed to object or protest against it,
but granted permission therefor.
Such acquiescence and permission
constitute an estoppel to contest the
right to enforce payment of the
assessments.
Thomas VS.. Mott; Summers coun-
ty; judgment reversed; case remand
ed; Lynch, judge.
To recover in assumpsit for the
breach OF an executory agreement for
the sale of corporate stock, plain
tiff must declare specially on the
contract. The general counts alone
will not suffice, except where pay
ment Of the consideration is the only
act remaining unperformed there
under.
Marion Roush, ct al VS.. Longdale
Telephone Company; Mason county;
reversed; remanded; Poffenbarger,
Judge.
i. The validity of bylaw Of a
corporation purporting to make the
holders Of its fully paid and non
assessable shares Of the capital stock
liable to periodical assessments for
payment of its debts and operating
expenses. is a subject Of controversy
within the appellate Jurisdiction Of
the supreme court of appeals.
2. Equity has Jurisdiction Of a
bill to enjoin actions to recover
assessments made under such by
law and the enforcement thereof
generally and obtain and adjudica-
ton Of its invalidity.
9. Such a bylaw is ultra wires
and void.
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