___________________________________________________
Filed: December 11, 1992
H. L. Snyder
William Roy Rice
Benjamin N. Snyder
E. Forrest Jones, Jr. (Albertson & Jones)
Charleston, West Virginia
Attorneys for the Appellants
James W. St. Clair
St. Clair & Levine
Huntington, West Virginia
Attorney for the Appellees
This Opinion was delivered PER CURIAM.
1. "A deed must be both delivered and accepted to
operate as a deed." Syl., Campbell v. Fox, 68 W. Va. 484, 69 S.E.
1007 (1910).
2. "Delivery of a deed by the grantor with intent that
it take effect as his deed and its acceptance, express or implied,
by the grantee are essential to its validity." Syl. pt. 3, Bennett
v. Neff, 130 W. Va. 121, 42 S.E.2d 793 (1947).
3. "A deed must not only be delivered by the grantor but
must be accepted by the grantee. Acceptance may be express by
signing the deed or otherwise or may be implied from circumstances.
The assent of the grantee will be presumed, where the deed is
beneficial to him, until dissent appear. Where dissent or
disclaimer appears, the deed is inoperative, and the title to the
thing granted reverts to the grantor by remitter from such
disclaimer." Syl. pt. 3, Guggenheimer v. Lockridge, 39 W. Va. 457,
19 S.E. 874 (1894).
4. "Documentary evidence establishing the acceptance of
an ancient deed by a deceased grantee, such as . . . his conveyance
of the land referring to the deed as source of title, will prevail
over proof of indefinite parol declarations by the grantee that he
did not accept the deed." Syl. pt. 2, in part, Lynch v. Brookover,
72 W. Va. 211, 77 S.E. 983 (1913).
5. "'Where conflicting theories of a case are presented
by the evidence, each party is entitled to have his view of the case presented to the jury by proper instructions. Whitmore v.
Rodes, 103 W. Va. 301 [137 S.E. 747 (1927)]' Syllabus Point 2,
Morris v. Parris, 110 W. Va. 102, 157 S.E. 40 (1931)." Syl. pt. 5,
Catlett v. MacQueen, 180 W. Va. 6, 375 S.E.2d 184 (1988).
6. "'Where [in a trial by jury] there is competent
evidence tending to support a pertinent theory in the case, it is
the duty of the trial court to give an instruction presenting such
theory when requested to do so.' Syl. pt. 3, State v. Foley, 128
W. Va. 166, 35 S.E.2d 854 (1945)." Syl. pt. 3, Blackburn v. Smith,
164 W. Va. 354, 264 S.E.2d 158 (1980).
7. "'"Upon a motion to direct a verdict for the
defendant, every reasonable and legitimate inference fairly arising
from the testimony, when considered in its entirety, must be
indulged in favorably to plaintiff; and the court must assume as
true those facts which the jury may properly find under the
evidence." Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112
W. Va. 85, 163 S.E. 767.' Syllabus point 1, Jenkins v. Chatterton,
143 W. Va. 250, 100 S.E.2d 808 (1957)." Syl. pt. 4, Cardinal State
Bank, Nat. Ass'n v. Crook, 184 W.Va. 152, 399 S.E.2d 863 (1990).
8. "'"In determining whether there is sufficient
evidence to support a jury verdict the court should: (1) consider
the evidence most favorable to the prevailing party; (2) assume
that all conflicts in the evidence were resolved by the jury in
favor of the prevailing party; (3) assume as proved all facts which
the prevailing party's evidence tends to prove; and (4) give to the
prevailing party the benefit of all favorable inferences which
reasonably may be drawn from the facts proved." Syllabus Point 5,
Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983), cert.
denied, 469 U.S. 981, 105 S. Ct. 384, 83 L. Ed. 2d 319 (1984).'
Syl. Pt. 2, Jarvis v. Modern Woodmen of America, 185 W. Va. 305,
406 S.E.2d 736 (1991)." Syl. pt. 4, Waugh v. Traxler, 186 W. Va.
355, 412 S.E.2d 756 (1991).
Per Curiam:
This is an appeal by Columbia Gas Transmission
Corporation, Columbia Coal Gasification Corporation, Columbia
Natural Resources, Inc., and Laurel Creek Co., Inc. (the
appellants), from a judgment order of the Circuit Court of Lincoln
County upholding a jury verdict in favor of the appellees, heirs of
the late Louisa Collins. The jury verdict and judgment order
awarded title to the minerals underlying three tracts of land
(consisting of five, eighty, and 457 acres, respectively) in
Lincoln and Wayne Counties to the appellees. The appellants
contend that their predecessors in title granted severance deeds to
the appellees' predecessors in title whereby the appellants'
predecessors were granted only title to the surface of the
properties in question. The trial court refused to instruct the
jury that the appellees' predecessors in title may be presumed to
have accepted the severance deeds in the absence of direct proof to
the contrary, because the severance deeds were beneficial to them.
The appellants contend that the trial court's failure to so
instruct the jury was reversible error, and that on the evidence
presented, they are entitled to a new trial. For the reasons that
follow, we agree.
The controversy in this case surrounds a series of
severance deeds issued by the appellants' predecessors in title (A.
A. Low, et al.) to the appellees' predecessors in title (the
Collinses) in the late 1800's. Prior to the granting of the
severance deeds, A. A. Low, et al. brought an ejectment action
against the Collinses in the United States Circuit Court for the
Southern District of West Virginia. A. A. Low, et al., claimed the
tracts of land in dispute in this case under land patents granted
to their predecessor in title in 1796 and 1797. The record in this
case shows that the Collinses were granted land patents to the same
property by the Commonwealth of Virginia sometime after 1797. The
ejectment action was brought by A. A. Low, et al., to remove the
Collinses, who were in possession of the land at that time, from
the property. The appellees admit that an ejectment action was
filed against the Collinses, and that the action was successful.See footnote 1
It is undisputed that the ejectment actions vested title to both
the land and minerals in the appellants' predecessors in title.
Several months prior to the final order in the ejectment
action, A. A. Low, et al., granted a severance deed to "Louisa
Collins" for the 80-acre parcel of land. The actual severance deed
is lost, but was recorded in both Lincoln and Wayne counties. The
deed granted the surface of the tract to "Louisa Collins," but
reserved the mineral rights to the land to A. A. Low, et al. The
integrity of this severance deed is called into question by the
appellees because it was (1) granted prior to the final disposition
of the ejectment action, and (2) granted in the name of "Louisa
Collins" several months prior to Louisa's marriage to George
Collins, and therefore prior to Louisa's taking of the Collins
surname. Apparently, this severance deed was recorded by Louisa's
husband, George, in 1903.See footnote 2 The severance deed to Louisa Collins
was cited in a later lease agreement signed by Louisa, specifically
acknowledging the reservation of minerals to A. A. Low, et al.See footnote 3
Louisa Collins also signed a deed granting a 160-acre tract of land
and a 6-acre tract of land wherein the deed by "A. A. Low and
others" was cited as source of title.
A. A. Low, et al. also succeeded in an ejectment action
against George F. Collins in May of 1880 concerning the 457-acre
tract of land. Over two years later, in September of 1882, A. A.
Low, et al., executed a severance deed in favor of George F.
Collins whereby Mr. Collins was given title to the surface of 305
acres of the property while A. A. Low, et al., reserved "all the
minerals, mineral substances and oils" to themselves. George F.
Collins was a predecessor in title to the appellees.
The 5-acre tract of land was conveyed to Isabelle Collins
in 1882 (subject to a life estate in Isabelle's mother) by way of
severance deed from A. A. Low, et al.See footnote 4 Again, A. A. Low, et al.,
reserved for themselves the minerals underlying the property while
granting title in the surface to the appellees' predecessor in
title. In a 1904 sale of timber interest in the property, Isabelle
cited the A. A. Low severance deed as her source of title.
Isabelle Collins was a predecessor in title to the appellees.
In all three severance deeds, the following language is
found: "[T]he party of the second part hereby accepts this deed
and the estate hereby conveyed upon the terms and conditions and
subject to the exceptions and reservations herein contained and set
forth." Although all three severance deeds were signed by A. A.
Low, et al., none were signed by the Collinses.
At trial in this case, the appellants offered the
following instruction as Instruction No. 6:
Columbia has offered evidence of three
severance deeds from A. A. Low and others,
which purport to grant to certain predecessors
of the Collins Heirs, part or all of the
surface of the Disputed Tracts herein. The
Court instructs the jury that where a deed is
in proper form, and the grantor has signed and
acknowledged it for record and it is
beneficial to a grantee, acceptance by the
grantee will be presumed unless the dissent of
the grantee is shown. Therefore, if you find
that one or more of the three severance deeds
executed by A. A. Low and others mentioned
above was in proper form, signed and
acknowledged by the grantors, then you must
find that such severance deed was legally
accepted unless you also find that the Collins
Heirs have offered certain or reasonably
conclusive proof that the grantee of such a
severance deed actually dissented to accepting
such deed.See footnote 5
The trial court refused to give this instruction.
On April 8, 1991, a Lincoln County jury found for the
appellees. This verdict awarding title to both the surface and
minerals of the disputed properties was entered by judgment order
of the Circuit Court of Lincoln County on May 22, 1991. The
appellants' motions for judgment notwithstanding the verdict and,
alternatively, for a new trial, were denied in August of 1991.
This appeal followed.
Upon appeal to this Court, the appellants argue that
under no valid interpretation of the evidence can appellees prove
title to both the surface and the minerals of the disputed
properties in this case. The appellants assert that under the
evidence presented in this case, the Collinses must be presumed to
have accepted the severance deeds executed in their favor by A. A.
Low, et al. They contend that the burden of proving whether or not
the Collinses accepted the severance deeds lies with the appellees,
and that the appellees did not meet that burden.
On the other hand, the appellees contend that the burden
of proving acceptance of the severance deeds lies with the
appellants. Although they acknowledge the legal presumption that
beneficial conveyances are accepted in the absence of contrary
evidence, they assert that these severance deeds were not
beneficial for the Collinses. Furthermore, they argue that no
evidence was presented that the Collinses signed the severance
deeds, and that the lack of signatures constitutes proof of
nonacceptance of the severance deeds.
The primary issue to be decided in this case is whether
the presumption of acceptance of the severance deeds applies in
this case.See footnote 6 In the syllabus of Campbell v. Fox, 68 W. Va. 484, 69
S.E. 1007 (1910), we stated: "A deed must be both delivered and
accepted to operate as a deed." In syllabus point 3 of Bennett v.
Neff, 130 W. Va. 121, 42 S.E.2d 793 (1947), we stated: "Delivery
of a deed by the grantor with intent that it take effect as his
deed and its acceptance, express or implied, by the grantee are
essential to its validity." And in syllabus point 3 of
Guggenheimer v. Lockridge, 39 W. Va. 457, 19 S.E. 874 (1894), we
stated:
A deed must not only be delivered by the
grantor but must be accepted by the grantee.
Acceptance may be express by signing the deed
or otherwise or may be implied from
circumstances. The assent of the grantee will
be presumed, where the deed is beneficial to
him, until dissent appear. Where dissent or
disclaimer appears, the deed is inoperative,
and the title to the thing granted reverts to
the grantor by remitter from such disclaimer.See footnote 7
The appellees acknowledge the principles enunciated in
the syllabi above. They assert, however, that the severance deeds
were not beneficial to the Collinses, because they were "a cloud on
the Collins' title." We find no merit in such an argument. The
severance deeds granted the surface title to the Collinses when
they had title to nothing. Their prior title had or would soon be
extinguished as a consequence of the ejectment actions by A. A.
Low, et al. Clearly, the severance deeds were beneficial.See footnote 8
The appellees argue that, even if the severance deeds are
presumed to be accepted, the presumption is rebutted by the fact
that the Collinses did not sign the severance deeds. For
authority, the appellees rely upon Midkiff v. Colton, 242 F. 373
(4th Cir. 1917). In that case the Fourth Circuit Court of Appeals
was faced with an A. A. Low, et al. severance deed containing
language of acceptance identical to that found in the severance
deeds at issue in this case. Referring to the acceptance language,
that court stated: "The last paragraph undoubtedly contemplated
that the acceptance by the grantees should be evidenced by their
signatures to the paper itself." Id. at 373. However, the Fourth
Circuit granted a rehearing in Midkiff v. Colton, 252 F. 420 (4th
Cir. 1918), cert. denied, 248 U.S. 563, 39 S. Ct. 8, 63 L. Ed. 423
(1918), wherein the Court reversed its prior decision and made no
mention of the lack of signature and found that the grantee of the
severance deed had not rebutted the presumption of acceptance in
that case.See footnote 9
The appellees also assert that the presumption of
acceptance is rebutted in the instance of the 80-acre tract because
the grantee of that severance deed, Louisa Collins, was not married
to a "Collins" at the time the deed was executed. Furthermore, the
severance deed was granted at least several months prior to final
judgments in any of the ejectment actions. The record does not
explain this situation with any clarity. The appellees suggest
fraud on the part of A. A. Low, et al. in the creation of the
severance deed to Louisa, while the appellants suggest that Louisa
and her husband, George, committed fraud.
Louisa Collins specifically cited the severance deed from
A. A. Low, et al. as her source of title in several later
conveyances. The appellees argue that, "the fact that an attorney,
who prepares a deed, cites a prior recorded deed as a source of
title, does not validate the acceptance of a deed. Back references
in deeds are not part of the conveyance." The appellees cite no
case law in support of this position, and we find that the case law
in this regard actually supports a contrary conclusion. Syllabus
point 2 of Lynch v. Brookover, 72 W. Va. 211, 77 S.E. 983 (1913),
in part, is as follows:
Documentary evidence establishing the
acceptance of an ancient deed by a deceased
grantee, such as . . . his conveyance of the
land referring to the deed as source of title,
will prevail over proof of indefinite parol
declarations by the grantee that he did not
accept the deed.
In this case the documentary evidence tends to establish
acceptance of the "ancient" deed by a deceased grantee in the form
of her conveyances referring to the deed as source of title.
Similarly, this applies to the 5-acre tract of land as well, also
cited by the grantee as her source of title in a later conveyance.
Because syllabus point 4 of Lynch states that such documentary
evidence "will prevail over proof of indefinite parol declarations
by the grantee," and no such evidence is in the record of this
case, it seems obvious that such documentary evidence should
provide even stronger evidence of acceptance where there is no
parol evidence of nonacceptance by the grantee.
We believe that the trial court committed reversible
error when it failed to instruct the jury as to the "presumption of
acceptance" which must be made when a conveyance is beneficial to
a grantee. In syllabus point 5 of Catlett v. MacQueen, 180 W. Va.
6, 375 S.E.2d 184 (1988), we stated:
'Where conflicting theories of a case are
presented by the evidence, each party is
entitled to have his view of the case
presented to the jury by proper instructions.
Whitmore v. Rodes, 103 W. Va. 301 [137 S.E.
747 (1927)]' Syllabus Point 2, Morris v.
Parris, 110 W. Va. 102, 157 S.E. 40 (1931).
And, in syllabus point 3 of Blackburn v. Smith, 164 W. Va. 354, 264
S.E.2d 158 (1980), we stated:
'Where [in a trial by jury] there is
competent evidence tending to support a
pertinent theory in the case, it is the duty
of the trial court to give an instruction
presenting such theory when requested to do
so.' Syl. pt. 3, State v. Foley, 128 W. Va.
166, 35 S.E.2d 854 (1945).See footnote 10
Appellants' Instruction No. 6 would have properly instructed the
jury as to the "presumption of acceptance" in this case. The
failure of the trial court to give the instruction was not harmless
and prejudiced the appellants.
The appellants also contend that the trial court
committed reversible error when it overruled their motion for a
directed verdict. In syllabus point 7 of Cardinal State Bank, Nat.
Ass'n v. Crook, 184 W. Va. 152, 399 S.E.2d 863 (1990) we stated:
'"Upon a motion to direct a verdict for
the defendant, every reasonable and legitimate
inference fairly arising from the testimony,
when considered in its entirety, must be
indulged in favorably to plaintiff; and the
court must assume as true those facts which
the jury may properly find under the
evidence." Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W. VA. 85, 163 S.E.
767.' Syl. pt. 1, Jenkins v. Chatterton, 143
W. Va. 250, 100 S.E.2d 808 (1957).
And in syllabus point 4 of Waugh v. Traxler, 186 W. Va. 355, 412
S.E.2d 756 (1991), we stated:
'"In determining whether there is
sufficient evidence to support a jury verdict
the court should: (1) consider the evidence
most favorable to the prevailing party; (2)
assume that all conflicts in the evidence were
resolved by the jury in favor of the
prevailing party; (3) assume as proved all
facts which the prevailing party's evidence
tends to prove; and (4) give to the prevailing
party the benefit of all favorable inferences
which reasonably may be drawn from the facts
proved." Syllabus Point 5, Orr v. Crowder,
173 W. Va. 335, 315 S.E.2d 593 (1983), cert.
denied, 469 U.S. 981, 105 S. Ct. 384, 83 L.
Ed. 2d 319 (1984).' Syl. Pt. 2, Jarvis v.
Modern Woodmen of America, 185 W. Va. 305, 406
S.E.2d 736 (1991).
In this case the record reveals evidence to support the
appellees' case. The appellees have shown that the Collinses did
not sign their severance deeds, while other grantees of similar
deeds did sign or acknowledge their deeds. Although a lack of
signature or acknowledgement is not conclusive, such evidence under
these circumstances certainly may be used to attempt to rebut
presumption of acceptance. Furthermore, the severance deed in
favor of Louisa Collins raises several unanswered questions because
of its timing. The fact that the severance deed was made out to
"Louisa Collins" before she married George F. Collins, and prior to
the final disposition of the ejectment action against George F.
Collins, may be given the inference that the deed was inaccurate
and therefore not accepted. Other evidence, including the fact
that the Collinses and their successors paid taxes on the fee and,
at various stages, leased the coal and gas beneath the property in
contravention of the appellants' predecessors' rights, was
presented at trial and may be used to attempt to rebut the
presumption of acceptance.
The appellees also presented evidence at trial that the
appellants' predecessor in title filed second ejectment actions
against the Collinses in 1911. These ejectment actions were
dismissed. The appellees sought to show that these later
ejectment actions show that the appellants' predecessors in title
understood that the appellees had not accepted the severance deeds.
Giving the prevailing party the benefit of all favorable
inferences, reasonably drawn from the facts, it is clear that the
appellants are not entitled to a directed verdict in this case.
Nonetheless, as noted above, the failure of the trial
court to give the appellants' "presumption of acceptance"
instruction was reversible error. Accordingly, the jury verdict
and judgment order of the Circuit Court of Lincoln County are
reversed, and this case is remanded for a new trial.
Footnote: 1 At trial in this matter, the jury was read the appellees' admission, as follows:
In an action in ejectment in the United
States Circuit Court, Southern District of
West Virginia at Charleston, styled William H.
Aspinwall, et al, against Perry G. Adkins, et
al, commenced at August rules, 1874[:] A[)]
Alexander Collins was served as a defendant on
June 6, 1874, with a jury verdict rendered
against him and judgment entered by order on
November 17, 1880; B) George F. Collins was
served as a defendant on June 6, 1874, with a
jury verdict rendered against him and judgment
entered by order on May 17, 1880; and C) Isaac
Collins was served as a defendant on June 6,
1874, with a jury verdict rendered against him
and judgment entered by order on November 17,
1880.
Alexander, George and Isaac Collins held title to the property in dispute in this case under the junior patents issued by the Commonwealth of Virginia. The land from which they were ejected is the subject of the dispute in the instant case.
Footnote: 2 A notation in the margin of the Wayne County deed book shows that after the deed was recorded, it was "Delivered to G. F. Collins, Feb. 14, 1903."
Footnote: 3 Strangely, the lease purports to grant the coal underlying the 80-acre tract of land for a period of six months. The land is described as follows in the handwritten record:
Being part of a tract of land known as the Thomas Wylie tract of land, containing eighty acres, more or less, conveyed to Louisa Collins by Abiel A. Low et al. by deed dated the first date of September, 1879, and of record in the County Court of Wayne County, West Virginia, however reserving and excepting unto the parties of the first part, their heirs and assigns forever all the timber and mining privileges heretofore reserved in the aforementioned deed, that is to say no actual openings shall be made from the surface of
said land, but said coal shall be mined from
entrances made on the adjoining property.
This recorded deed, noting and citing the A. A. Low severance deed to Louisa Collins, was noted to have been signed by Louisa.
Footnote: 4 Isabelle Collins was the daughter of Alexander Collins, niece of George Collins, and granddaughter of Isaac Collins, all three of whom were subject to the A. A. Low, et al. ejectment actions.
Footnote: 5 The appellants' Instruction No. 6 is based upon syllabus point 3 of Guggenheimer v. Lockridge, infra, wherein it was stated, in part, that: "The assent of the grantee will be presumed, where the deed is beneficial to him, until dissent appear." The instruction assumes that the deed is beneficial to the appellees and then states that, in order to rebut the presumption of acceptance, the appellees must offer "certain or reasonably conclusive proof." This rebuttal language is derived from Downs v. Downs, 89 W. Va. 155, 108 S.E. 875 (1921):
The presumption of a constructive delivery of a deed is not conclusive but may
be rebutted by evidence showing either non-delivery by the grantor or non-acceptance by
the grantee. To escape the operative effect
of the conveyance manually or constructively
delivered or actually or constructively
accepted the burden rests upon the grantor or
those who claim under him or whose rights are
jeopardized by the conveyance to prove the
fact to be as he or they allege. In order to
entitle such person to the relief he seeks,
the proof must be certain or reasonably
conclusive. Chambers v. Chambers, 227 Mo.
262, 127 S. W. 86.
Unlike the situation in the instant case, in Downs it was the grantor of a deed who sought to show that the grantee had not accepted the deed.
Footnote: 6 The appellants also assert that they are entitled to a directed verdict on the 80-acre tract because of the continuous operation of a well by one of the appellants for over thirty years. The record shows, however, that the jury was presented with evidence from the appellees that the well was not on the 80-acre tract. Certainly, the jury was entitled to embrace the appellees' evidence, and the appellants are not entitled to a directed verdict on that ground.
Footnote: 7 That a "presumption of acceptance" arises when a deed is beneficial to a grantee is well-established. The United States Supreme Court, in Tompkins v. Wheeler, 16 Pet. 106, 118-19, 41 U.S. 106, 118-19, 10 L. Ed. 903, 908 (1842) has stated: "This deed is absolute upon its face, without any condition whatever attached to it; and being for the benefit of the grantees, the presumption of law is, in the absence of all evidence to the contrary, that the grantees accepted the deed." See also Bowden v. Parrish, 9 S.E. 616 (Va. 1889); Colee v. Colee, 23 N.E. 687 (Ill. 1890); Corbett v. Corbett, 107 S.E.2d 165 (N. C. 1959); but the presumption will not arise where the deed conveys a burden to the grantee: County of Worth v. Jorgenson, 253 N.W.2d 575 (Iowa 1977).
Footnote: 8 The appellees seek to support their argument by alleging that the severance deeds were granted because, "it would have taken the Army to enforce [A. A. Low, et al.'s] ejectment judgments and to throw hundreds of people in southern West Virginia off their land." There is absolutely nothing in the record to support this assertion. Even if this argument were supported in the record, the
assertion in no way defeats the beneficial nature of the severance deeds.
Footnote: 9 The appellants cite United States v. 298.25 Acres, 587 F. Supp. 1510 (S.D. W. Va. 1984), affirmed, 865 F.2d 255 (4th Cir. 1988), cert. denied, 490 U.S. 1068, 109 S. Ct. 2070, 104 L. Ed. 2d 635 (1989) to support their argument that the acceptance language did not require the grantee of the severance deed to sign the deed to show acceptance. In that case, an A. A. Low, et al. severance deed was made in a form similar to those in this case. That court found that "Execution by the grantees was not required to make the deed valid." The issue in that case concerned whether a signature was necessary on a "compromise deed," a severance deed granted in compromise of an ejectment action instituted by A. A. Low, et al. In this case, the appellants have not argued that the severance
deeds were "compromise deeds," and it seems unlikely that they were, considering two of the three severance deeds were granted after final judgments in the ejectment actions.
Footnote: 10 We have also stated in Roberts v. Stevens Clinic Hospital, Inc., 176 W. Va. 492, 497, 345 S.E.2d 791, 797 (1986) that we:
will presume that a trial court acted
correctly in giving or refusing instructions,
unless the instructions given were prejudicial
or the instructions refused were correct and
should have been given. Syl. Pt. 1, State
v.Turner, 137 W. Va. 122,70 S.E.2d 249 (1952).
In making this determination, the Court will
review the instructions as a whole. McAlister
v. Weirton v. Hosp. Co., 173 W.Va. 75, 312
S.E.2d 738 (1983), quoting, Syl. Pt. 3,
Lambert v. Great Atlantic & Pacific Tea
Company, 155 W. Va. 397, 184 S.E.2d 118
(1971).
And in Wolfe v. Kalmus, 186 W. Va. 622, 626, 413 S.E.2d 679, 683
(1991), we noted that:
When, . . . instructions read as a whole do
not adequately advise the jury of all
necessary elements for their consideration,
the jury verdict is not supported, and the
matter must be remanded for a proper trial.
As we recognized in Adkins v. Whitten, 171 W.
Va. 106, 109, 297 S.E.2d 881, 884 (1982),
'. . . it is incumbent on the court by
way of instruction or charge to inform
the jury as to the law that is applicable
to the facts of the case. . . . We have
consistently held that a trial court has
a duty to give a proper instruction
relating to an appropriate legal theory
that is supported by the facts of the
case. E.g., Abdulla v. Pittsburgh and
Weirton Bus Co., [158] W. Va. [592], 213
S.E.2d 810 (1975); Brown v. Crozer Coal &
Land Co., 144 W. Va. 296, 107 S.E.2d 777
(1959); DeLuz v. Board, 135 W. Va. 806,
65 S.E.2d 201 (1951); Morris v. Parris,
110 W. Va. 102, 157 S.E. 40 (1931).'
Considering the instructions as a whole, the trial court's refusal to give appellant's Instruction No. 6 was prejudicial.