The Sunday telegram. [volume] (Clarksburg, W. Va.) 1914-1927, 1916-09-24
In Mine Cases Taken to 1t from
the Lower Courts for
Final Opinions.


opinions were handed down by the SUI
promo court OF appeals this week
three by Judge L. Judson Williams,
two each by Judge George Poffenbar-
ger, and Charles ". Lynch, and one
each by Judge John W. Mason and
William N. Miller.
The Bylllbl follows.
Mercer, Administrators, against Ott,
State Compensation Commissioner;
appeal; reversed and rcmHnded; Ma.
son, Judge;
l. Where the statute docs not pre-
scribe the form Of the application to
DO used by dependent applying for
compensation from the worltmens
compensation fund, but does require
the public service commission to adopt
tho forms Of application OF those
claiming to be entitled to benefits Of
compensation therefrom" and such
forms are adopted BY the commission
and person claiming to be entitled 10
compensation out OF such fund makes
application on one Of the forms pro-
Scrlbcd by the commission, and the
form Is not in conflict with the pro-
visions Of this act. the commission
should not reject the claim, after the
time has expired when new applica-
ton can be made.
2. A car containing coal belonging
to brick company was placed by a
railroad company on a track OF the
brick company. and man was en-
ployed by the brick company to un-
load the coal. and while doing so was
under tho car in discharge Of his
duty, the car was struck by another
car Of the railroad company and the
car under which the employee was at
work was run over the employee and
he was thereby injured to such extent
that he died OF tho injuries. Held
that the injuries SO sustained were re-
ceiycd in the course OF and resulted
from said employment.
3. Where workman is killed by an
accident arising in the course OF and
resulting from his employment and a
tort-feasor other than his employer
is responsible therefor, the right to
compensation from the workmens
compensation fund by a dependent OF
the deceased is not lost by recovery
of damages against the tort-feasor,
by the personal representative OF the
deceased.
Chesapeake and Ohio Railway Com.
pany against Public Service Commits
sion. Order Suspended. Williams,
President.
/. An order, made by the public
service commission, commanding the
Chesapeake and Ohio Railway Com
pany 10 attach its train No 81, schod-
uled to leave Huntington daily at 7:45
o'clock q. m, and transport to Charles
on car, denominated the Wheeling
glcnpcr carried to Huntington by the
Baltimore and Ohio railroad. and to
return the same to Huntington on
the same day BY means OF Its train
No. 33, scheduled to leave Charleston
at 1915 y. m. o'clock and arrive at
huntington at o'clock p. M, Is held
to impose an unreasonable and un-
necessary burden upon said company,
IN view Of facilities already furnished
by Its trains, Nos. 80 and "a. and un-
just and unfair to the carrier, because
If the unnecessary burden imposed
upon 1t and the pecuniary loss in
cured by 1t in performing the extra
service.
2. But that performance Of the eX-
tra service will cause 4 pecuniary loss
to prove 1t to be conhscatory. In
order to determine that question pc
titloner's entire intrastate earnings,
from its passenger traffic, must be TAX
en- into account.
3. Nor is such order necessarily
repugnant to the constitution and
statutes Of the United States, as i'm
posing an undue burden upon inter.
state traffic. The states are permitted
to make reasonable regulations, affect
ing Interstate carriers, relating to the
stopping Of trains at populous towns
for the purpose of taking on and let
ting off passengers and respecting the
changing Of schedules OF trains, 40 as
to connect with trains running on
other railroads, for the accommoda-
ton of the public.
Bennett against Farmers Mutual
Fire Association; Tyler County; Az.
flrule1l; Poffenbarger, Judge:
l. II 1t happens that a rule day Of
4 circuit court occurs on q holiday
and term OF the court begins on
the next day, the rules extend through
such next day by virtue Of the post
ponement or extension provision of
chapter $50 of the code, notwithstand-
ing the limitation thereof prescribed
in section i. chapter 1876 Of the code.
2. If the rule days of court ex-
tend into q term, as In the case above
instanced. the Office Judgment entered
thereat does not become final until
tho last day OF the term succeeding
the one so invaded by the rules. and
II cannot be properly entered as final,
in the absence of the defendant, un-
til such succeeding term.
9. IAN act establishing and set
ting apart certain secular days as
holidays in the state of West Virginia"
is sufficient title for the whole of
an act setting apart and establishing
such days and providing THAT when
the return day of any summons or
other court proceedings or any notice
or time fixed for holding any court or
doing any official act shall fall on
either OF said holidays. the ensuing
secular day shall be taken as meant
and intended; the postponement or