THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW WEST VIRGINIA COURTS AS APPROVE!) BY THE SUPREME COURT OF APPEALS OF THE STATE. COMPILED AND EDITED BY B. H. OXLEY, n OP THE KANAWHA COUNTY BAR. ONE VOLUME IN TWO PARTS: PART I. THE LAW OF INSTRUCTIONS. PART II. FORMS OF INSTRUCTIONS. CHARLESTON: THE TRIBUNE PRINTING Co. , 1906. COPYRIGHT, 1905, BY B. H.OXLEY. INTRODUCTORY. The title of this book is its preface and the necessity for this, or a similar work, is suggested on pages 1 and 2. A few paragraphs explanatory of its general scope and arrangement will suffice. The space allotted to Part I permits of dealing with general principles only. In Part II, with rare exceptions, only one form illus- trative of each propositions involved, is given, and, as a general rule, the more recent decisions of the Appellate Court are utilized. Indexes and Tables of Cases. For convenience, a separate Index and Table of Cases are provided for each Part, those for Part I, preceding it, and those for Part II, following that subject. Citations. Authorities, other than those from which the subject matters of the text are taken, will be found in the Table of Cases, and while this is somewhat an innovation, yet it is believed that this plan will prove to be of practical benefit, as it not only furnishes a convenient method of citations, but relieves the text of burdens frequently im- posed. Chapters and Subjects. Following Part I, and preceding Part II, between pages 76 and 77, will be found a synopsis, by Chapters and Sub- jects, giving the contents of Part II. Page References. Wherever an instruction is copied into the Reports the numbers refer to the pages where found, but when taken from the printed records, references are had to the pages of the Reports where approved. B. H. OXLEY. Charleston, W. Va., February 22, 1906. 735529 INDEX. PART I.-THE LAW OF INSTRUCTIONS. THE INDEX TO PART II FORMS OF INSTRUCTIONS- FOLLOWS THAT SUBJECT. A. ABSENCE OF EVIDENCE. Failure to introduce evidence. 40. ABSTRACT PRINCIPLES. Instructions must be based upon facts proven, 16. ABSTRACT PROPOSITIONS OF LAW. Asserting erroneous propositions, 20. Correct abstract propositions Irrelevant instructions, 11. Failure to connect with the evidence, 20. Law quoted from text books, 20. Misleading instructions, 20. ABSTRACT QUESTIONS. Action of appellate court as to, 19. Courts not required to instruct as to, 20. ACCOMPLICES. Prohibiting instructions as to weight of evidence of, 47. Testimony of Action of appellate court as to, 47. ACCUSED. Assailment of character of, 52. Character of, 52. Concerning evidence of good character of, 53. Intimation of court's opinion of guilt of, 50. When evidence as to character of admissible, 52. vi INDEX PART I. AFFIDAVITS OF JURORS. See JUBOBS. AFTER-DISCOVERED EVIDENCE. See NEWLY-DISCOVERED Evi- DK.NCK. ALTERATION OF THE RECORD. See RECORD. AMBIGUOUS INSTRUCTIONS. Explaining the meaning of instructions, 14. Qualification as to, 8. APPELLATE COURT. Comments by on evidence given at former trial not to be read to juries, 1. How erroneous instructions given by trial-courts on abstract propositions regarded by, 19, 21. How proceedings of trial-court regarded by, 59. How verdict of juries regarded by, 73. Weighing evidence by, 74. ARBITRARY DISREGARD OF EVIDENCE. Impeached witnesses, 39. ARGUMENTS OF COUNSEL. - Abuse of privileges Necessity for instructions as to, 50. Failure of opposing party to examine material witness, 51. Unauthorized statement of Necessity for instructions as to, 50. ASKING INSTRUCTIONS NECESSITY FOR. Degrees of punishment Silent record as to, 5. Request for and refusal of instructions, 5. ASSAULT CHARACTER OF. See SELF DEFEXSE. ASSUMPTION OF FACTS. See FACTS. AUTHOR OF INSTRUCTIONS. Who regarded as, 9. B. BASES FOR INSTRUCTION. Foundation in the evidence for instructions, 5. BILLS OF EXCEPTION. After-discovered evidence Effect of failure to certify, 67. INDEX PART I. vii BILLS OP EXCEPTION Continued. Certification of and making part of the record, 62. Certification of to clerk Duty of clerk to record, 61. Certifying and identifying evidence Time for, 66. Certifying proper bills of exception Requirements as to, 65. Certifying sufficient evidence to show relevancy of instruc- tion Necessity for, 57. Properly certifying and making part of record Neces- sity for, 62. Certifying When must be certified, 62. Error appearing on face of record Statute concerning, 55. Error based on giving or refusing instructions How must be shown, 58. Evidence How objection to admission of made available, 64. Exceptions raised in another bill of exceptions, 58. Exceptions to part of instructions only, 58. Exceptions When may be made, 60. Excluding the evidence Necessity for relevancy of evidence excluded, 58. Failure to set forth sufficient matter to show whether in- structions are correct, 58. General exceptions When sufficient, 55. How they must present the case, 57. Making bills of exception When must be made, 61. Noting exceptions When must be noted, 62. Objection to admission of evidence How made available, 64. Objection to instructions When must be offered, 60. Office of bills of exception What exceptor must show, 56. Order book of trial-court What it must show, 69. Order filing bills of exception Necessity for, 68. Papers attached to pleadings Presumption as to, 70. Papers purporting to be part of bills of exception, 70. Identification of, 70. Reference to, 71. When not incorporated under bills of exception, 71. Petition to compel trial-courts to sign bills of exception, 65. What petition must set forth, 65. Record What it must show, 56. What necessary to make bills of exception part of, 68. Recording bills of exception When must be recorded, 62. Saving points What necessary, 59. Setting out sufficient grounds Insufficient grounds, 59. Signature of trial judge Effect of want of, 62. How compelled What petition must set forth, 65. Rule requiring Effect of answer to, 65. Signing bills of exception When must be signed, 61. viii INDEX PART I. BILLS OF EXCEPTION Continued. Skeleton bills of exception Necessity for transcribing, 66. Necessity for distinct specifications as to, 66. Special judge Authority of to sign, 62. Statute concerning error appearing on face of record, 55. Stenographic reports How made part of a record, 65. Necessity for distinct specification as to, 66. Trial-courts How compelled to sign and certify bills of ex- ception, 65. Effect of answer to rule as to, 65. What petition must set forth, 65. Signature of trial-judge Effect of want of, 62. Tendering bills of exception When must be tendered, 61. Waiving points 'When regarded as waived, 59. What bills of exception and record must show, 56. BOOKS. Instructions containing paragraphs from prohibited, 24. BURDEN OF PROOF. Verdict based on mere conjecture, 73. C. CERTIFYING BILLS OF EXCEPTION. See Bnxs OF EXCEPTION. CERTIFYING THE EVIDENCE. After-discovered evidence Effect of failure to certify, 67. Certifying all the evidence Necessity for, 63. Statutory provision as to, 63. Certifying either the facts or the evidence Necessity for, 64. Statutory provision as to, 64. Certifying the facts and not the evidence not prohibited, 64. Objection to admission of evidence How made available, 64. Proper bills of exception Compelling trial-courts to sign and certify, 65. Relevancy of instruction Necessity for certifying sufficient evidence to show, 57. 58. Skeleton bills of exception For what purpose may be adopted, 66. Certifying and identifying such evidence Time for, 66 Stenographic reports How made part of the record, 65. Necessity for distinct specifications as to, 66. Trial-courts Compelling to sign and certify proper bills of exception, 65. Rule as to Effect of answer to, 65. Verdict plainly contrary to the evidence Effect of, 64. INDEX PART I. ix CHARACTER OF ACCUSED. See ACCUSED. CHARTER OF VICTIM. See VICTIM. CIRCUMSTANTIAL EVIDENCE. See EVIDENCE. CLASSIFICATION OF WITNESSES. See WITNESSES. CLERKS OF TRIAL COURTS. Duty of to record bills of exception, 61. COMPETTENCY OF EVIDENCE. See EVIDENCE. COMPETENCY OF WITNESSES. As to one convicted of felony, 37. By whom competency determined, 36. Wife not a competent witness against her husband When, 37. CONFLICTING EVIDENCE. See EVIDENCE. CONFLICTING INSTRUCTIONS. See CONTRADICTORY INSTRUC- TIONS. CONFLICTING THEORIES. Different theories covered by other instructions, 26. CONFUSING OR MISLEADING INSTRUCTIONS. Abstract propositions, 24. Abstract questions Courts not required to instruct as to, 19. Action of appellate courts as to erroneous instructions on, 19. Conflicting instructions, 24. Evidence tending to prove case Want of, 24. Doubt as to meaning intended, 22, 23. Immaterial issues, 25. Irrelevant instructions, 10. Irrelevant issues, 25. Issues not material Directing enquiries as to, 25. Misleading instructions, 24. Not fully stating the law, 24. Not justified by the evidence, 24. Paragraphs from books, 24. Proving the case Necessity for evidence tending to, 24. Unintelligible instructions, 24. Want of evidence tending to prove case, 24. x INDEX PART I. CONJECTURAL INSTRUCTIONS. Evidence tending to prove certain facts, 26. CONSTRUING INSTRUCTIONS. Rules of appellate court as to, 22. Stating the law correctly, 9. Susceptibility of two constructions, 22. CONTRADICTORY INSTRUCTIONS. Conflicting theories, 26. Failure of good instructions to cure bad instructions, 25. Inconsistent instructions Reason for refusal of, 25. Instructions calculated to mislead the jury, 24. Reasons for refusal of, 25. Reversal because of, 25. Unintelligible Instructions, 23. CONTRADICTORY EVIDENCE. See EVIDENCE. CORRECTING INSTRUCTIONS. Correcting and curing defective instructions, 12. COUNSEL. See AHGTMRXT OF COUNSEL. CURING DEFECTIVE INSTRUCTIONS. Failure of good instructions to cure bad instructions, 25. Giving other proper instructions, 12. Withdrawal of bad instructions, 12. D. DECFSIONS OF APPELLATE COURTS. Giving evidence or facts involved in similar cases, 2 Reading from to juries prohibited, 2. DEFECTIVE INSTRUCTIONS. Correcting or curing, 12. Giving other proper instructions, 12. Supplying other instructions, 12. Withdrawal of bad instructions, 12. DEFENSE. Evidence tending to support, 31. Instructions presenting, 31. DEGREES OF PUNISHMENT. Failure of evidence to establish, 53. INDEX PART I. xi DEGREES OF PUNISHMENT Continued. Omission of instruction as to Silent record, 5. When refusal of instruction as to not proper, 6, 7. Whether murder in first or second degree, 53. Whether voluntary manslaughter or homicide, 53. DISCRETION OF TRIAL COURTS. As to failure to examine witnesses, 51. As to time for giving instructions, 6, 7. Rules of trial-courts Reasonable rules, 6. DISREGARDING INSTRUCTIONS. Erroneous instructions, 33. Following instructions Necessity for, 32. Law applicable to facts, 33. DISREGARDING TESTIMONY OF WITNESSES. Province of court as to, 39. Province of jury as to, 39. Weight of evidence, 40. DOUBTFUL MATERIAL FACTS. Erroneous instructions as to, 41. Preponderance of evidence, 45. DUTY OF COURTS TO INSTRUCT. Duty to instruct when asked, 7. Instruction as to the law Purpose of, 7. E. EQUIVOCAL INSTRUCTIONS. Explaining the meaning of instructions, 14. ERRONEOUS INSTRUCTIONS EST GENERAL PRESUMP- TIONS AS TO. Harmless instructions, 32. When presumption as to, overcome, 32. Explaining the meaning of instructions, 14. ERRONEOUS PROPOSITIONS. When assertion of ground for reversal, 20. ERRONEOUS PROPOSITIONS OF LAW. See ABSTRACT PROPO- SITIONS OF LAW. EVIDENCE. Absence of evidence, 40. xii INDEX PART I. EVIDENCE Continued. Abstract propositions Failure to connect evidence with, 20. After-discovered evidence Effect of failure to certify, 67, 75. Arbitrary disregard of evidence, 39. Certification of evidence, 63. Admission of evidence How objection to made available, 64 Certifying all the evidence Necessity for, 63. Certifying either the facts proven of the evidence Ne- cessity for, 64. Certifying facts proven and not the evidence not pro- hibited, 64. Compelling trial-courts to sign bills of exception What petition must set forth, 65. Objection to admission of evidence How made avail- able, 64. Rule requiring signing bills of exception Effect of answer to, 65. Skeleton bills of exception Necessity for transcribing taken in, 66. Time within which to certify and identify certain evi- dence, 66. Stenographic reports How made part of the record, 65. Necessity for distinct specifications as to, 66. Circumstantial evidence What necessary for conviction on, 43. Comparison of with other evidence, 43. (See note in "Table of Cases," under State vs. Sheppard.) Colorable evidence, 46. Competency of How determined Preliminary facts, 43. Conflicting or contradictory evidence, 45, 74. Conflicting theories, 26. Facts supposed, 46. Law applicable to different theories, 46. Preponderance of evidence, 46. Weight of evidence Specifying, 45, 74. Credibility of witnesses, 49. Discussion of evidence by trial-courts prohibited, 49. Assuming certain things as facts, 49. Effect of evidence Credibility of witnesses, 49. Guilt of accused, 50. Influencing the Jury, 49. Weight of evidence, 49. Excluding evidence Necessity for relevancy of evidence ex- cluded, 67. Expert evidence Connection of with other evidence, 44. Failure to connect abstract propositions with, 20. INDEX PART I. xiil EVIDENCE Continued. Failure to establish facts, 21. Failure of instructions to refer to, 11. Fairly tending to prove the case, 10. Foundation in for instruction Necessity for, 5. Functions of juries as to weighing evidence How regarded by appellate court, 74. Giving undue importance to, 36. Illegal evidence Inadmissible evidence Presumption as to, 75. Failure to follow with other evidence, 48. Presumption as to, 75. When party cannot complain of, 48. Instructions must be based on, 11, 24. Instructions not applicable to, 10. Instructions not justified by, 10. Instructions not warranted by, 31. Insufficient evidence, 75. Intimation of court's opinion of evidence, 18. See also "Dis- cussion of evidence by Trial Court." Irrelative evidence, 74. Isolated portions of evidence Giving undue prominence to, 47. Juries Duty of as to scrutinizing evidence, 47. Material evidence Necessity for as to evidence excluded, 67. Newly discovered evidence, 67, 75. Affidavit of parties seeking new trial on ground of What it must show, 75. Effect of failure to certify, 67. Character of such evidence What required, 75. Presumption as to, 75. Objection to admission of evidence, 64. Omission of material facts, 21. Preponderance of evidence, 44. Doubtful material facts, 45. Facts supposed, 46. When the evidence plainly preponderates against the verdict, 74. Slight evidence, 46. Sound legal propositions, 46. Tending to prove facts, 26. Uncorroborated evidence, 46. Accomplices Action of appellate court as to testimony of, 47. Prohibiting instructions as to weight of, 47. Duty of jury to scrutinize, 47. Weak evidence, 27. xiv INDEX PART I. EVIDENCE Continued. Weighing evidence by appellate court Abuse of jury func- tions. 74. Weight of evidence, 44. Accomplices Instructions as to weight of evidence of prohibited, 47. Conflicting evidence. 74. Courts prohibited from instructing as to, 49. Doubtful material facts, 45. Expert evidence Connection of with other evidence, 44. Facts not proven, 17. Facts supposed, 46. False testimony of witnesses, 40. Harmless error, 31. How determined, 44. Influencing the jury, 49. Interest of party in result of verdict, 45. Instructions as to prohibited, 47, 49. Remarks of trial court in presence of jury as to, 49. Specifying weight or value of testimony, 45. Weighing of evidence by appellate court Impropriety of, 74. What must be certified. 57, 58. EXCEPTIONS TO EVIDENCE AND TO INSTRUCTIONS, 54, 73. See, also, BILLS OF EXCEPTION. Error appearing on face of record Statute concerning de- fined, 55. Exceptions raised in another bill of exceptions, 58. General exceptions When sufficient, 55. When several exceptions are asked and refused, 55. Necessity for exceptions, 54. Notice as to exceptions What notice exceptor required to give. 54. Office of exceptions What exceptor must show, 56. Purpose of exceptions, 56. Relevancy of instruction Necessity for certifying suf- ficient evidence to show, 57, 58. Requisites of bills of exception, 56. Saving points What necessary, 59. Setting out sufficient grounds, 58. Time for certifying, excepting, making, noting, objecting, offering, recording, signing and tendering exceptions, 59, 60. To part of instructions only, 58. Waiving exceptions, 54, 72. Waiving points, 59. When exceptions may be made, 60. INDEX PART I. xv EXCEPTIONS TO EVIDENCE AND TO INSTRUCTIONS Con- tinued. When must be made, 61. When may be tendered, 61. EXCLUDING EVIDENCE. Necessity for relevancy of evidence excluded, 67. EXISTENCE OF FACTS. See FACTS. EXISTENCE OF MALICE. Right of courts to define malice, 51. EXPERT EVIDENCE. Connection of with other evidence, 44. EYE WITNESSES. Testimony of as compared with circumstantial evidence, 43. F. FACTS. Absence of evidence for, 40. Admitted or sustained, 17, 52. Assumption of facts, 15. Assuming certain things as facts, 49. Correct assumption of facts, 16. Facts admitted or sustained by the evidence, 17. Facts not conceded as true, 17. Facts not proven Weight of evidence, 17. Facts proven Instructions must be based upon, 16. Facts proven beyond controversy, 16. Facts unsupported by evidence, 17. Facts other than exist, in case, 17. Failure to establish, 21. Important and material facts not conceded as true, 17. Intimation of court's opinion as to, 18. Material facts not conceded as true, 17. Weight of evidence, 17. Certifying either the facts proven or the evidence Neces- sity for, 64. Certifying the facts Necessity for, 63. Certifying the facts proven and not the evidence not pro- hibited, 64. Constituting defense, 40. Correct assumption of, 16. Court's opinion of Giving prohibited, 49. Discussion of by trial Courts prohibited, 49. xvi INDEX PART I. FACTS Continued. Doubtful material facts, 41. Evidence tending to establish different theories, 46. Existence of facts, 40. Absence of evidence, 40. Doubtful material facts, 41. Facts constituting defense, 40. Facts proven, 40. Law applicable to, 41. Existence of other facts, 42. Failure of evidence to establish facts, 21. Giving undue importance and prominence to, 36, 41. Important and material facts not conceded as true, 17. Ignoring material facts, 41. Ignoring others proven, 42. In evidence, 15. Intimation of court's opinion of, 18, 48, 49, 50. Instructions must be based upon facts proven, 16. Law applicable to, 33, 41. Making specific facts basis of instruction, 42. Mixed questions of law and facts Province of court as to, 51. Material allegations, 18. Separating the facts from the law, 18. Whether question of law or facts, 18. Not conceded as true, 17. Not proven Weight of evidence, 17. Not within the province of the jury, 35. Omission of material facts, 12. Omission of reference to facts, 21. Other than exist in case, 17. Or evidence must be certified, 64. Proven facts, 16, 40, 42. Separation of from the law, 18. Shown in the record Misinstructing the jury as to, 35. Singling out facts, 41. Existence of other facts, 42. Giving undue prominence to certain facts, 41. Ignoring material facts or elements, 41, 42. Ignoring other facts proven, 42. Making specific facts basis for instruction, 42. Material facts or elements, 42. Specific facts Making basis for instruction, 42. State of facts other than exist in case, 17. Sufficient facts to support hypothesis if instruction, 35. Supposed facts Preponderance of evidence, 46. Unsupported by the evidence, 17. INDEX PART I. xvii FAULTY INSTRUCTIONS. Correcting faulty instructions, 29. FELONY. Competency of person convicted of as a witness, 37. FOLLOWING INSTRUCTION. Erroneous instruction, 33. Law applicable to facts, 33. Necessity for following, 32. FOUNDATION IN THE EVIDENCE FOR INSTRUCTIONS. Necessity for basis for in the evidence, 5. G. GENERAL EXCEPTIONS TO INSTRUCTIONS. When general exceptions sufficient, 55. GIVING UNDUE IMPORTANCE TO EVIDENCE. When no general instruction given, 36, 47. GIVING UNDUE PROMINENCE TO CERTAIN FACTS. Singling out facts, 41. GRADE OF OFFENSE. Failure of evidence to establish, 53. Whether murder in first or second degree, 53. Whether voluntary manslaughter or homicide, 53. GUILT OF ACCUSED. Intimation of court's opinion as to, 50. H. HARMLESS ERROR. Error not prejudicial to party complaining, 76. When evidence preponderates, 31. HARMLESS INSTRUCTIONS. Apparent harmlessness Necessity for, 34. Giving or refusing instructions, 34. Giving undue importance to the evidence, 36. Incorrect abstract propositions, 34. Matter not within the province of the jury, 35. Misinstructing the jury Facts shown in record, 35. INDEX PART I. HARMLESS INSTRUCTIONS Continued. Presumption as to, 34. Sufficient evidence to support instruction, 36. When a different verdict could not have ben rightly found, 36. HOMICIDE. Failure of evidence to establish, 63. Whether murder in the first or second degree, 63. Whether voluntary manslaughter or homicide, 53. HUSBAND AND WIFE. When not competent witnesses against each other, 37. HYPOTHETICAL FACTS. Omission of material facts, 21. HYPOTHETICAL INSTRUCTIONS. Different hypotheses, 31. Facts proven beyond controversy, 16. . Failure of evidence to establish facts, 21. Omission of material facts, 21. Omission of reference to facts, 21. Sufficient evidence to support hypothesis of instruction, 35. I. IGNORING MATERIAL FACTS. See FACTS. ILLEGAL EVIDENCE. See EVIDENCE. IMMATERIAL ISSUES. Misleading and confusing instructions, 26. IMPEACHMENT OF WITNESSES. Arbitrary disregard of evidence, 39. IMPORTANT EVIDENCE. Necessity for relevancy of evidence excluded, 67. IMPROPER INSTRUCTIONS EFFECT OF GIVING AND RE- FUSING PROPER INSTRUCTIONS. Different hypotheses, 31. Failure to correct Effect of, 32. Modification of Giving other instructions, 14. Harmless modification of, 16. Instructions not warranted by the evidence, 31. Preponderance of evidence Harmless error, 31. INDEX PART I. xix IMPROPER INSTRUCTIONS EFFECT OF GIVING AND RE- FUSING PROPER INSTRUCTIONS Continued. Presenting defense, 31. Reversal When not had because of, 30. INADMISSIBLE EVIDENCE, See EVIDENCE. INCOMPLETE INSTRUCTIONS. Correcting or curing bad instructions, 12. Giving other proper instructions, 12. Supplying other proper instructions, 12. Withdrawal of bad instructions, 12. INCONSISTENT INSTRUCTIONS. See CONTRADICTORY INSTRUC- TIONS. INCONSISTENT LEGAL PROPOSITIONS. Making case turn on one hypothesis only, 23. INFLUENCING THE JURY. Remarks of trial-judge in presence of, 49. Assuming certain things as facts, 49. As to the guilt of accused, 50. Discussion of evidence, 49. Weight of evidence, 49. INSUFFICIENT EVIDENCE. See EVIDENCE. INTEREST OF PARTIES TO SUIT. In result of verdict, 45. INTELLIGIBLE INSTRUCTION. Right of party to have given in his own language, 8. INTERPOLATION IN INSTRUCTION. Giving another having the effect of an improper modifica- tion of, 13. Instruction properly drawn and requested, 13. Modification of, 13. INTERPRETATION OF INSTRUCTION. Propositions at variance with the law applicable to the evi- dence, 22. INTIMATION OF COURT'S OPINION OF EVIDENCE. See TRIAL COURTS. INVOLUNTARY MANSLAUGHTER. See MANSLAUGHTER. IRRELEVANT EVIDENCE. See EVIDENCE. xx INDEX PART I. IRRELEVANT INSTRUCTIONS. Correct abstract propositions of law, 11. Definition of, 10. Directing inquiries as to facts not material, 11. Failure to refer to the evidence, 11. Misleading instructions, 10. Not adapted to nor based upon the evidence, 11. Not applicable to the evidence, 10. Not Justified by the evidence, 10. Who to determine as to relevancy of, 10. IRRELEVANT ISSUES. Instructions confusing and misleading the jury, 25. ISOLATED PORTIONS OP EVIDENCE. Giving undue prominence to, 47. J. JUDGMENTS OF TRIAL-COURTS. How regarded by appellate courts, 73. When the verdict is plainly right, 73. JURIDICAL TRUTH. Distinction between juridical and moral truth, 11. Failure of instruction to refer to evidence, 11. JURORS AFFIDAVITS OF. As to understanding instructions, 33. JURIES. Disregarding testimony of witnesses, 39. Duties as to obeying instructions, 33. Erroneous instruction, 33. Law applicable to facts, 33. Necessity for following instructions, 33. Province of courts as to, 39. Province of juries as to, 39. Weight of evidence, 40. LANGUAGE. Right of party to have instruction given in his own, 8. Qualifications as to, 8. INDEX PART I. xxi LAW. Applicable to different thories, 46. Applicable to the evidence Propositions at variance with, 22. Applicable to facts, 33, 41, 57. Duty of courts to instruct as to, 7. Instructions not fully stating the law, 24. Mixed questions of law and fact, 51. Propositions of law at variance with the evidence, 22. Questions of for courts only, 18. Quoted from text books prohibited, 20. Reading law to juries prohibited, 1. Separating law from facts, 18. Submitting questions of law to juries prohibited, 15. LEGAL PRINCIPLES GOVERNING INSTRUCTIONS, 1-53. LEGAL PROPOSITION. Inconsistent legal propositions not presented by evidence, 23. LOST INSTRUCTIONS. Instructions not appearing in the record Presumptions as to, 36. M. MALICE. Courts not permitted to pass upon facts constituting, 52. Existence of, 49. Right of courts to define malice, 51. When question of fact for jury, 52. MANSLAUGHTER. Failure of evidence to establish, 53. Jury to pass upon question of fact as to, 53. Whether voluntary manslaughter or homicide, 53. MATERIAL ALLEGATION. A question of law for the court, 18. MATERIAL EVIDENCE. See EVIDENCE. : MATERIAL FACTS. See also FACTS. Doubtful material facts, 41, 45. Ignoring material facts, 41. Ignoring other facts proven, 42. Omission of, 21. INDEX PART I. MATERIAL WITNESSES. Failure of party to examine, 61. MEANING OF INSTRUCTIONS. Doubt as to meaning intended, 22. MEMORANDA. Effect of made on record of trial-court, 69. MISINSTRUCTING THE JURY. Facts shown in the record, 35. MISLEADING INSTRUCTIONS. See CONFUSING AND MISLEAD- ING INSTRUCTIONS. MIXED QUESTIONS OF LAW AND FACT. See FACTS. MODIFICATION OF INSTRUCTIONS. Erroneous modification, 13. Exceptions to erroneous modification of proper instructions Right of party affected to benefit of, 13. Explaining the meaning of instructions, 14. Failure to modify instructions, 14. Harmless modifications of proper instructions, 15. Instructions correctly propounding the law, 13. Instructions properly drawn and requested, 13. Modification of improper isnrtuctions Giving other instruc- tion, 14. Proper instructions nullified by improper instructions, 13. Proper instructions Harmless modification of, 15. Right of party to benefit of exceptions to, 13. "MORAL CERTAINTY", 53. ( See Note in Table of Cases, under "State v. Sheppard." MURDER. Whether In first or second degree, a question for the jury, 53. N. NAMING WITNESSES. Naming witnesses whose testimony is applicable, 38. When testimony proper in other respects, 39. NECESSITY OF INSTRUCTIONS. Reading decisions of appellate court giving evidence or facts involved in similar cases prohibited, 1. INDEX PART I. xxiii NECESSITY OF INSTRUCTIONS Continued. Reading law to juries prohibited, 1. Reading opinion of appellate court commenting on evidence given at a former trial prohibited, 1. Text books and reports to juries prohibited, 1. NEWLY-DISCOVERED EVIDENCE. After-discovered evidence Effect of failure to certify, 67. Impeachment of witness When new evidence is object of, 75. Presumptions as to What necessary to show, 75. What must appear from affidavit of party seeking new trial,75. NOTING AND CERTIFYING BILLS OF EXCEPTIONS TIME FOR. Certification of bills of exception to clerk Duty of clerk to record, 61. Necessity for properly certifying bills of exception, 62. Signing bills of exception When must be signed, 61. When bills of exception may be made, 60. When may be tendered, 61. When must be made, 61. When must be noted, certified and recorded, 62. When objection to instruction must be offered, 60. NULLIFYING INSTRUCTIONS. Proper instructions nullified by improper instructions, 13. NUMEROUS INSTRUCTIONS REPEATING INSTRUCTIONS. Clearly laying down the law, 29. Correcting a faulty instruction, 28. Enquiry as to a particular matter, 29. Phases of case not presented in other instructions, 29. Refusal of instructions when others given on same point, 28. Repeating instructions, 28. To same legal effect as others given, 28. O. OBJECT OF INSTRUCTION. How to be interpreted and judged of, 2, 3. OBJECTION TO ADMISSION OF EVIDENCE. How made available in appellate court, 64. OBJECTION TO INSTRUCTION. When objection may be made, 60. When objection must be made, 61. INDEX PART I. OBJECTION TO INSTRUCTION Continued. When objection must be offered, 60. OBSCURE INSTRUCTIONS. See VAGUE or OBSCUBE LNSTBUCTION. Offense Degrees of Failure to instruct, 53. Whether murder in first or second degree, 53. Whether voluntary manslaughter or homicide, 5;?. OFFERING INSTRUCTION TIME FOR. Abuse of discretion by trial-courts, 6, 7. Rules of trial-courts as to, 6. OFFICE OF BILLS OF EXCEPTION. What exceptor must show, 56. OFFICE OF INSTRUCTIONS. How interpreted and judged of, 2, 3. OMISSION OF MATERIAL FACTS. Effect of upon the verdict, 21. Omission of reference to facts, 21. ORAL INSTRUCTIONS. Refusal of correct written instructions, 30. ' ORDER AND ORDER BOOK OF TRIAL-COURT. What it must show, 69. ORDER FILING BILLS OF EXCEPTION. Necessity for, 68. Rule of appellate court as to, 68. P. PAPERS FOUND AMONG THE RECORD. How considered, 68, 70. Identification of, 70. Reference to, 70. PARAGRAPHS FROM BOOKS. Instructions containing prohibited, 24. PERTINENT INSTRUCTIONS. Instructions given in one's own language, 8 PLEADINGS. Copy of paper attached to, 70. INDEX PART I. XXY PREPONDERANCE OF EVIDENCE. See WEIGHT AND PREPON- DERANCE OF EVIDENCE. PROBABLE CAUSE. Proceedings of trial-court Presumptions as to regularity of, 59. Mixed questions of law and fact Province of courts as to, 51. PROOF BURDEN OF. Verdict based on mere conjecture, 73. PROPER INSTRUCTIONS MODIFICATION, NULLIFICATION AND REFUSAL OF. Effect of refusal on the verdict, 29. Giving other instruction to same effect, 30. Instructions presenting defense, 31. Modification of Erroneous modification of, 13. Nullification by improper instruction, 13. Oral instructions Refusal of correct written instructions, 30. PUNISHMENT DEGREES OF. Failure to establish, 53. PURPOSE OF EXCEPTIONS. See also REQUISITES OF EXCEP- TIONS. Office of bills of exception What exceptor must show, 56. PURPOSE OF INSTRUCTIONS. Office of instructions, 2. QUESTIONS OF FACT. Doubtful material facts Courts prohibited from instructing as to, 41, 49. Jury to determine as to, 18. Weight of evidence Courts prohibited from instructing as to, 41, 44. QUESTIONS OF LAW. Duty of trial-court when the law is plainly for one party, 15. Submitting questions of law to juries prohibited, 15. R. READING INSTRUCTIONS HOW TO BE TAKEN AND READ. Author of instructions 'Who regarded as, 9. INDEX PART I. READING INSTRUCTIONS HOW TO BE TAKEN AND READ Continued. Construing Instructions How construed Stating the law correctly, 9. What necessary to insert in, 9. READING LAW TO JURIES. Prohibition of, 1. REASONABLE DOUBT. "Beyond a reasonable doubt" and "to a moral certainty", equivalent terms, see "Table of Cases" under "State v. Sheppard". RECORD AND RECORD BOOK OF TRIAL-COURTS. See also BILLS OF EXCEPTION. After discovered evidence Effect of failure to certify, 67. Alteration of, 71. Error appearing on face of Statute concerning denned, 55. Identification of papers not incorporated in bills of excep- tion, 71. Identification of papers referred to in bills of exception, 71. Inserting matter not part of record, 71. Instructions copied into, 70. Memoranda on Effect of, 69. Necessity for certifying sufficient evidence to show relevancy of Instructions, 57, 58. Order of trial-court What record must show, 69. Papers Copies of attached to, 70. Presumption as to regularity of proceedings of trial-courts, 59. Purporting to be part of bills of exception, 70. Reference to that may be safely copied into, 70. Restoration of record How record may be restored, 71. Statute concerning "error appearing on face of record" de- fined, 70. What necessary to make part of record, 68. What it must show as to bills of exception, 56, 59. What the record must show in general, 67, 69. RECORDING BFLLS OF EXCEPTION. Duty of clerks as to, 61. Making part of record, 61. Time for, 60. REFUSAL OF INSTRUCTIONS. When others given on same point, 28. INDEX PART I. xxvil REFUSAL OF PROPER INSTRUCTIONS. Effect of refusal on the verdict, 29. Giving others to same effect, 30. Oral instructions, 30. Refusal of correct written instructions, 30. RELEVANCY OF EVIDENCE. Necessity for relevancy of evidence excluded, 67. RELEVANCY OF INSTRUCTIONS. Correct abstract propositions of law, 11. Definition of, 10. Directing enquiries as to fact not material, 11. Failure to refer to the evidence, 11. Misleading instructions, 10. Necessity for certifying sufficient evidence to show relevancy of, 67. Not adapted to nor based upon the evidence, 11. Not applicable to the evidence, 10. Not justified by the evidence, 10. Relevant instructions defined, 10. Who to determine as to relevancy of, 10. REPEATING INSTRUCTIONS. See NUMEBOUS INSTRUCTIONS. REQUISITES OF EXCEPTIONS AND BILL OF EXCEPTION. See also BILLS OF EXCEPTION. Bills of exception and record What they must show, 56. How they must present the case, 57. Office of What exceptor must show, 56. Certifying sufficient evidence to show relevancy of instruc- tions Necessity for, 57, 58. Exceptions raised in another bill of exceptions, 58. To part of instructions only, 58. Failure to set forth sufficient matter to show whether instruc- tions are correct, 58. Offer of bills of exception What exception must show, 56. Saving points What necessary, 59. Setting out sufficient grounds Insufficient grounds, 58. Trial courts Presumptions as to regularity of proceedings of, 59. Waiving points When regarded as waived, 59. REPORTS. Reading from to juries prohibited, 2. Stenographic How made a part of the record, 65, 66. INDEX PART I. RULES OF TRIAL COURTS. As to time of giving instructions, 6. Discretion of as to, 6. RULE REQUIRING TRIAL COURT TO SIGN BILLS OF EX- CEPTION. Effect of answer to rule, 65. S. SAVING POINTS. What necessary, 59. SCRUTINIZING EVIDENCE. Duty of jury as to, 47. SELF DEFENSE. Charter of assault When trespass only intended, 52. SETTING ASIDE THE VERDICT, 72-76. Based on mere conjecture, 73. Burden of proof, 73. Conflicting evidence Weight of evidence, 74. Harmless error, 76. How verdict regarded by appellate court, 73. Illegal evidence Presumption as to, 75. Insufficient evidence, 75. Irrelevant evidence, 74. Mere conjecture Verdict based on, 73. Motion for Necessity of, 72. Newly discovered evidence Presumption as to, 75, 76. Character of and materiality of, 75. What must appear from affidavit for, 75. Not supported by evidence, 73. Preponderance of evidence, 73. Presumption as to Illegal evidence, 75. As to newly discovered evidence, 75. Waiving exceptions, 72. Waiving errors, 72. Weighing the evidence by the appellate court, 74. Weight of evidence, 74. When the judgment Is plainly right, 73. SIGNATURE OF TRIAL JUDGE TO BILLS OF EXCEPTION. Authority of special judge to sign, 62. Necessity for, 62. Want of signature of trial judge, 62. INDEX PART I. xxix SIGNATURE OF TRIAL JUDGE TO BILLS OF EXCEPTION Continued. When must be signed, 61. SILENT RECORD. As to degrees of punishment, 5. SINGLING OUT FACTS. See FACTS. SINGLING OUT WITNESSES. Naming witness whose testimony is applicable, 38. When instruction proper in other respect, 39. SKELETON BILLS OF EXCEPTION. Time within which to certify and identify such evidence, 66. When may be adopted for purpose of making evidence part of the record, 66. SOUND LEGAL PROPOSITIONS. Colorable evidence Slight evidence, 46. SPECIAL JUDGE. Authority to sign bills of exception, 62. SPECIFYING WEIGHT OF EVIDENCE. Value of testimony, 45. SPECIFIC INSTRUCTION. Necessity for asking and giving, 26. STATUTE DEFINED. Concerning error appearing on the record, 55. STENOGRAPHIC REPORTS. How made part of the record, 65. Necssity for distinct specifications as to, 66. SUBMITTING QUESTIONS OF LAW ONLY. Duty of trial court when law is plainly for one party, 15. Submitting questions of law to juries prohibited, 15. SUPPOSITIVE INSTRUCTIONS. Evidence tending to prove case supposed, 27. Weak evidence, 27. SWEARING WITNESSES MISTAKE IN NOT SWEARING. After verdict is renderd, 38. Before the jury retires, 38. xxx INDEX PART I. T. TEXT BOOKS AND REPORTS. Reading to juries prohibited, 2. TENDERING BILLS OF EXCEPTION. Time for, 60. THEORIES. Law applicable to different, 46. TIME FOR; Certifying bills of exception, 60. Excepting to instructions. 59. Making exceptions, 60. Noting exceptions, 60. Objecting to instructions, 60. Offering exceptions to instructions, 60. Recording exceptions and bills of exception, 61, 62. Signing bills of exception. 60. 61. Tendering exceptions, 60, 61. TRIAL COURTS. Abuse of discretion by, 7. Answer to rules requiring the signature to bills of exception Effect of, 65. Compelling trial courts to sign bills of exception, 65. Discretion as to examination of witnesses, 51. Discussion of evidence, 49. Discussion of credibility of witnesses, 49. Weight of evidence, 49. Disregarding testimony of witnesses, 39. Province of court as to, 39. Province of jury as to, 39. Weight of evidence, 39. Errors committed by Certifying evidence, 57. Influencing the jury, 49. Intimation of opinion as to facts, 48. Assuming certain things as facts, 49. As to guilt of accused, 50. Weight of evidence, 49. Malice not a question for court to pass upon, 52. Right of court to define, 51. Offering Instruction Discretion as to time for, 6. Order book, and record of What they must show, 67, 69. Proceedings of Presumptions as to regularity of, 59. Record of What It must show, 69. INDEX PART I. . xxxi TRIAL COURTS Continued. Regularity of proceedings of Presumption as to, 59. Requirements to sign and certify proper bills of exceptions, 65. Rules of Reasonable rules, 6. Rule requiring signature to bills of exception, 65. Signature of to bills of exception How compelled, 65. Necessity for, 62. What petition must set forth, 65. Witnesses Competency of Who to determine, 37. Weight of evidence Discussion of prohibited, 49. U. UNAMBIGUOUS INSTRUCTIONS. Concerning right of party to have instructions given in his own language, 8. UNCONTRADICTED EVIDENCE. Facts submitted or sustained by the evidence, 17. UNCONTRADICTED FACTS. Correct assumption of facts, 16. UNCORROBORATED EVIDENCE. Accomplices Testimony of Action of appellate court as to, 47. Prohibiting instructions as to weight of, 47. Duty of jury to scrutinize, 47. UNDERSTANDING INSTRUCTIONS. Affidavits of jurors as to, 33. UNINTELLIGIBLE INSTRUCTIONS. Instructions confused in language and contradictory in terms, 23. V. VAGUE OR OBSCURE INSTRUCTIONS. Doubt as to meaning intended, 22, Inconsistent legal proposition, 23. Instructions ussceptible of two constructions, 22. Propositions at variance with the law applicable to the evi- dence, 22. Qualifications as to, 8. Rule of appellate court as to, 22. INDEX PART I. VERDICT SETTING ASIDE. See SETTING ASIDE THE VERDICT. VICTIM CHARACTER OF. Admisstbility of evidence as to, 62. In connection with other evidence, 52. W. WAIVER OF ERRORS. When regarded as waived, 72. WAIVING EXCEPTIONS TO INSTRUCTION. What notice exceptor required to give, 54. When deemed as waived, 72. WAIVING INSTRUCTIONS. When presumed to be waived, 6. WAIVING POINTS. When regarded as waived, 59. WEAK EVIDENCE. Evidence tending to prove the case, 27. WEIGHING EVIDENCE. How weighing evidence by appellate court regarded, 74. WEIGHT OF EVIDENCE. See EVIDENCE. WIFE. Effect of failure to testify for husband, 50. When not competent witness against husband, 37. WITNESSES. Arbitrary disregard of testimony of, 39. Classification of, 38. Competency of in general, 36, 37. Credibility of, 49. Court to judge as to competency of, 36. Disregarding testimony of, 39. Province of court as to, 39. Of jury as to, 39. Weight of evidence, 40. Felony When one convicted of may be competent witness, 37. Impeachment of Arbitrary disregard of testimony of, 39. Material witnesses Effect of failure to examine, 50. Mistake in not swearing witness, 37, 38. INDEX PART I. xxxiii Discovery of mistake after verdict rendered, 38. Before jury retires, 38. Naming witness whose testimony is applicable, 38. When instructions proper in other respects, 39. Singling out witnesses Opportunities for witnesses to know the truth, 38. Weight to be given to testimony of, 49, 50. Who to judge as to competency of, 36. Wife not a competent witness against her husband When, 37. TABLE OF CASES-PART I. GIVING THE WEST VIRGINIA AND VIRGINIA CITATIONS IN SUPPORT OF EACH LEGAL PROPOSITION LAID DOWN. The subjects printed in italics correspond to the sub-headings, pages and letters of the text. Sub-headings, under which there are neither W. Va. nor Va. citations in support of the text therein contained, are omitted. THE TABLE OF CASES IN PART II, FOLLOWS THAT SUBJECT. A. ADKINS v. INSURANCE CO., 45 W. VA. 384. 62,a. Necessity of signature of trial-judge to bills of exception, W. Va.; State v. Hall, 8-259. 69,d. What order book and record of trial-court must show. W. Va.; Bank v. Showacre, 26-49. ARTHUR v. CITY OF CHARLESTON, 51 W. VA. 132. 30,b. Refusal of proper instructions Giving others to same legal effect. W. Va.; McCray v. Fairmont, 46-442; Plate v. Durst, 42-69; Shrewsbury v. Tufts, 41-213. BANK v. NAPIER, 41 W. VA. 481. BARNETT v. LUMBER CO., 43 W. VA. 441. 25,c. Contradictory instructions Reversal because of. W. Va.; Hall v. Lyons, 29-420; Mason v. Bridge Co., 20-223; xxxvi TABLE OF CASES PART I. BARNETT v. LUMBER CO., 43 W. VA. 441 Continued. McCreery v. R. R. Co., 43-110; McElvey v. R. R. Co., 35-500; McMechen v. McMechen, 17-703; Woodell v. Improvement Co., 38-23. BENTLEY v. INSURANCE CO., 40 W. VA. 730. 17,h. Assumption of facts Facts not proven Weight of evidence. W. Va.; Bank v. Als, 5-50; Kerr v. Lunsford, 31-660. BLACK v. THOMAS, 21 W. VA. 712. 57,c. How bills of exceptions must present the case. W. Va.; Newlin v. Beard, 6-110. Va.; Read's case, 22 Gratt. 924. BRIDGE CO. v. BRIDGE CO., 34 W. VA. 155. BROWN v. BROWN, 29 W. VA. 777. 72,b. Waiving exceptions to instructions. W. Va.; Danks v. Rodeheaver, 26-274; Kemble v. Herndon, 28-524; Riddle v. Core, 21-530; Sammons v. Hawver, 25-678; Shrewsbury v. Miller, 10-115; State v. Phares, 24-657; State v. Thompson, 26-145. Va; Humphreys v. West, 3 Rand. 516. C. CAMPBELL v. HUGHES, 12 W. VA. 184. 10,e. Instructions not applicable to the evidence. Va.; Fitzhugh v. Fitzhugh, 11 Gratt. 300; Kincheloe v. Tracewell, 11 Gratt. 587. CAPELLAR v. INSURANCE CO., 21 W. VA. 577. 40,b. Facts constituting defense. W. Va.; Abell v. Ins. Co., 18-412; Cohen v. Guthrie, 15- 113; Smith v. Townsend, 21-468. Va.; Chatham v. Hatcher, 30 Gratt. 56. CARDER v. BANK, 34 W. VA. 68. 60,a. When objection to instructions must be offered. W. Va.; Core v. Marple, 24-354; Danks v. Rodeheaver, 26- 274; Wustland v. Potterfleld, 9-438. TABLE OF CASES PART I. xxxvli CARPER v. COOK, 39 W. VA. 346. 62,b. Authority for special Judge to sign bills of exception. W. Va.; Code, Ch. 112, Sec. 12 and Chap. 131., Sec. 9. CARRICO V. RAILWAY CO., 35 W. VA. 89. 14,g. Explaining the meaning of instructions. W. Va.; Gas Co. v. Wheeling, 8-371. . Va.; R. R. Co. v. Polly, 14 Gratt. 447; Ward v. Churn, 18 Gratt. 801. CARRICO v. RAILWAY CO., 39 W. VA. 86. 16,c. Assumption of facts Facts proven beyond controversy. W. Va.; Carrico v. Railway Co., 35-390; Sheff v. City of Huntington, 16-307. Va.: Railroad Co. v. Noell's Admr., 32 Gratt. 394. 34,c. Harmless instructions Necessity for apparent harmlessness. W. Va.; Beatty v. R. R. Co., 6-388; Clay v. Robinson, 7-348. Va.; Bank v. Wadill, 27 Gratt. 448. 27,b. Suppositive instructions Weak evidence. W. Va.; Bloyd v. Pollocks, 27-75; Bridge Co. v. Bridge Co., 34-155. Va.; Hopkins v. Richardson, 9 Gratt. 485. CLAIBORNE v. RAILWAY CO., 46 W. VA. 363. 20,a. Misleading instructions. W. Va.; Sheppard v. Insurance Co., 21-368. , , , Va.; Pasley v. English, 10 Gratt. 236. 42,d. Singling out facts Ignoring other material facts. COFFMAN v. HEDRICK, 32 W. VA. 120. 16,a. Instructions must be based on facts proven. Va.; Cheatham v. Hatcher, 30 Gratt. 56. CORDER v. TALBOTT, 14 W. VA. 284. 35,f. Misinstructing the jury Facts shown in the record. W. Va.; Clay v. Robinson, 7-350. Va.; Colvin v. Menefee, 11 Gratt. 87; Insurance Co. v. Herndon, 24 Gratt. 536; Pitman v. Breckenridge, 3 Gratt. 127. CRAFT v. MANN, 46 W. VA. 478. 61,f. Certification of bills of exception to clerk Duty of clerk to record. W. Va.; Griffith v. Carrothers, 42-59. xxxviii TABLE OF CASES PART I. CROGAN v. R. R. CO.. 39 W. VA. 415. 74,j. Conflicting evidence Weight of evidence. W. Va.; Martin v. Thayer, 37-38; Miller v. Insurance Co., 12-116; Reynolds v. Tompkins, 229. Va.; Grayson's case, 6 Gratt. 712. CUMMINGS v. ARMSTRONG, 34 W. VA. 1. 65,f. Compelling trial-courts to sign bills of exception Effect of answer to rule Requirements to sign and certify proper bills. W. Va.; Douglass v. Loomis, 5-542; Morgan v. Fleming, 24- 189; Poteet v. Commissioners, 30-58. D. DANKS v. RODEHEAVER, 26 W. VA. 274. 56,b. What bill of exceptions and record must show. 'W. Va.; Core v. Marple, 24-354; State v. Phares, 24-657. DAVIDSON v. RAILWAY CO., 41 W. VA. 408. DAVIS v. WEBB, 46 W. VA. 6. 7,a. Duty of courts to instruct as to the law when asked to do so. 35,e. Harmless instructions When a different verdict -could not have been rightly found. W. Va.; Nicholas v. Kershner, 20-251. Va.; Bank v. Wadill, 27 Gratt. 451; Wiley v. Givens, 6 Gratt. 277. DICKEN v. SALT CO., 41 W. VA. 512. DIMMEY v. RAILROAD CO., 27 W. VA. 52. 54,a. Necessity for exceptions What notice exceptor required to give. W. Va.; Core v. Marple, 24-354; Danks v. Rodeheaver, 26- 274; State v. Phares, 24-657; State v. Thompson, 26-149. 59,k. Waiving point When regarded as waived. W. Va. ; Same rases as last above. DINGESS v. BRANSON. 14 W. VA. 100. 20,c. Asserting erroneous propositions. W. Va.; Strader v. Goff, 6-257. TABLE OF CASES PART I. xxxix F. FISHER v. RAILROAD CO., 42 W. VA. 183. FOLEY v. CITY OF HUNTINGTON, 51 W. VA. 396. 46,c Conflicting evidence Facts Supposed Preponderance of evidence. W. Va.; Bowen v. City of Huntington, 35-382; Moore v. City of Huntington, 31-824; Phillips v. City of Huntington, 35-406. FURBEE v. SHAY, 46 W. VA. 736. 62, g. Necessity for properly certifying bills of exception and mak- ing part of the record. W. Va.; Craft v. Mann, 46-478; Griffith v. Carrothers, 42- 59. G. GAS CO. v. WHEELING, 8 W. VA. 323. 22,b. Instructions susceptible of two constructions. Va.; Railroad Co. v. Sanger, 15 Gratt. 230; Boswell's case, 20 Gratt. 860. 14,e. Modification of improper instructions Giving other in- structions. GILMER v. SYDENSTRICKER, 42 W. VA. 52. 60,b. Opinions of trial-court When exceptions to be made to. W. Va.; Core v. Marple, 24-354; Nadenbusch v. Sharer, 2- 285; Perry v. Horn, 22-381; Robinson v. Pitzer, 3- 335; Wickes v. R. R. Co., 14-157. Va.: Telegraph Co. v. Hobson, 15 Gratt. 122. GUNN v. R. R. CO., 37 W. VA. 420. 70,i. Reference to papers that may be safely copied into the record. W. Va.; Gunn v. R. R. Co., 36-165; Richardson v. Donahoo, 16-687. Va. ; Craig v. Sebrell, 9 Gratt. 431. H. HALSTEAD v. HORTON, 38 W. VA. 727. 75,m. Newly discovered evidence When new trial granted on ground of. W. Va.; Carder v. Bank, 34-38; State v. Betsall, 11-703. xl TABLE OF CASES PART I. HANNUM v. HILL, 52 W. VA. 166. HARMON v. MADDY, 57 W. VA. 66. HOOD v. MAXWELL. 1 W. VA. 219. HUGHES v. FRUM, 41 W. VA. 446. 71,1. Identification of papers referred to in record. W. Va.; Hart v. R. R. Co., 6-336; Sweeney v. Baker, 13-189. Va.; White v. Toncray, 9 Leigh. 347. 58,e. Identification of instructions when exceptions to taken. W. Va.; Gunn v. R. R. Co., 37-421. FLSLEY v. WILSON, 42 W. VA. 758. INDUSTRIAL CO. v. SHULTZ. 43 W. VA. 471. 23,e. Vague or obscure instructions Inconsistent legal propo- sitions. W. Va.; Barnett v. Lumber Co., 43-441; Gas Co. v. Wheel- ing, 8-323; McMechen v. McMechen, 17-703. J. JARRETT v. STEVENS, 36 W. VA. 446. 7,1. Time for offering instructions Abuse of discretion of trial- court. W. Va.; Tully v. Despard, 31-970. JORDAN v. BENWOOD. 42 W. VA. 312. 36,a. Lost instructions Presumption as to. Va.; Turberville v. Long, 3 Hen. & Mun., 309. 8,c. Right of party to have instructions given in his own lan- guage Qualifications as to. W. Va.; State v. Evans, 33-417. JORDAN v. JORDAN, 48 W. VA. 600. 61,e. Time within which bills of exceptions must be signed. W. Va.; Hughes v. Frum, 41-452; Gilmer v. Sydenstricker, 42-55; Simmons v. Looney, 41-738; State v. Mc- Glumphy, 37-805; Welty v. Campbell, 37-797. Va.; Winston v. Giles, 27 Gratt. 530. TABLE OP CASES PART I. xli K. KAY v. R. R. CO., 47 W. VA. 467. 66,h. Stenographic reports How made part of the record. W. Va.; Code, page 1062; Bank v. Showacre, 26-48; Cum- mings v. Armstrong, 34-1; Gregory v. R. R. Co., 37-606; Hughes v. Frum, 44-453; Perry v. Horn, 22-381; Poling v. R. R. Co., 38-645; State v. Harr, 38-58. Va.; Railroad Co. v. Ampey, 93-108; R. R. Co. v. Shotts, 92-34. KERR v. LUNSFORD, 31 W. VA. 662. KING v. JORDAN, 46 W. VA. 106. 64,b. Certifying the facts and not the evidence not prohibited, W. Va.; Johnson v. Burns, 39-658. KINSLEY v. COUNTY COURT, 31 W. VA. 464. KLINKLER v. S. & I. CO., 43 W. VA. 219. 58,h. Exceptions raised in another bill of exceptions. W. Va.; Hall v. Hall, 12-21; Zumbro v. Stump, 38-334. Va. ; Brook v. Young, 3 Rand. 106; Crawford v. Jarrett, 2 Leigh. 639; Perkins v. Hawkins, 9 Gratt. 649. KOONTZ v. KOONTZ, 47 W. VA. 31. 70,j. Papers purporting to be a part of bills of exceptions. W. Va.; Bank v. Showacre, 26-48; Handy v. Scott, 26-710; Hilleary v. Thompson, 11-113; Parker v. Petroleum Co.; 25-108; Pegram v. Stortz, 31-220; Phelps v. Smith, 16-522; Ramsburg v. Erb, 16-788; Winters v. Null, 31-450. L. LAIDLEY v. COUNTY COURT, 44 W. VA. 566. 63,a. Necessity for certifying all the evidence. W. Va.; Johnson v. Burns, 39-659; State v. Ziegler, 40-593; Yeager v. Bluefield, 40-484. LANDERS v. R. R. CO., 46 W. VA. 492. 50,a. Arguments of counsel Abuse of privileges Necessity for instructions as to. W. Va. ; State v. Chisnell, 36-670. xlii TABLE OF CASES PART I. LIMER v. TRADERS CO.. 4, W. VA. 175. 74,h. Preponderance of evidence When preponderates against verdict. W. Va.; Davidson v. Ry. Co., 41-407; Johnson v. Burns, 39-659. LIVELY v. BALLARD, 2 W. VA., 496. LONG v. FERINE, 44 W. VA. 243. M. MCDONALD v. COAL co.. 46 w. VA. ise. 46,a Colorable evidence Sound legal propositions. W. Va.; Bloyd v. Pollock, 27-75; Carrico v. Ry. Co., 39-100; Clay v. Robinson, 7-349; Industrial Co. v. Schultz, 43-471. McKELVEY v. RAILROAD CO., 35 W. VA. 501. McKENDREE v. SHELTON, 51 W. VA. 516. 70,h. Copy of paper attached to pleadings Presumptions as to. W. Va.; Arnold & Co. v. Slaughter, 36-589; Chapman v. Mc- Millan, 27-220; Gunn v. R. R. Co., 37-424; Ward v. Ward, 40-611. 71,k. Identification of papers not incorporated in Mil of excep- tions. Same citations as last above. McMECHEN v. McMECHEN, 17 W. VA. 684. 26,a. Evidence tending to prove certain facts. Va,; Pasley v. English, 10 Gratt. 242; Rea's Admr. T. Trotter, 26 Gratt. 585. McVEY v. ST. CLAIR CO.. 49 W. VA. 412. 21, c. Instructions which omit any reference to facts. W. Va.; Jackson v. Railroad Co., 43-380. MAXWELL v. KENT, 49 W. VA. 543. MAYER v. FROBE, 40 W. VA. 248. 68,b. Necessity for order filing bills of exception. W. Va.; Overruling Beck v. Thompson, 31 W. Va. 459., and Pegram v. Stortz, 31-354. TABLE OF CASES PART I. xliii MILLER v. WHITE, 46 W. VA. 68. MOORE v. DOUGLASS, 14 W. VA. 708. MORGAN v. FLEMING, 24 W. VA. 187. 65,e. Compelling trial-courts to sign bills of exception. W. Va.; Black v. Thomas, 21-709; Code, Ch. 131, sec. 9; Douglass v. Loomis, 5-542; Fisher v. City of Charleston, 17-595, 628. Va.; Bennett v. Hardaway, 6 Munf. 125; Brooks v. Cal- loway, 12 Leigh. 446; Jackson v. Henderson, 3 Leigh. 196; Pasley v. English, 5 Gratt. 141; Taliaferro, v. Franklin, 1 Gratt. 332. N. NICHOLAS v. KERSHNER, 20 W. VA. 251. O. OCHELTREE v. McCLUNG, 7 W. VA. 233. / OLIVER v. RAILROAD CO., 42 W. VA. 703. 21,a. Hypothetical instructions Failure of evidence to estab- lish facts. W. Va.; Winkler v. R. R. Co., 12-699. ORGAN CO. v. HOUSE, 25 W. VA. 65. OSBORNE & CO. v. FRANCIS, 38 W. VA. 312. 34,a. Harmless instructions When harmlessness apparent. Va.; Preston v. Harvey, 2 Hen. & Mun. 55. 12,a. Incomplete instructions Correcting and curing defective in- structions. W. Va.; McKelvey v. Railway Co., 35-500. 32,b. Presumptions as to erroneous instructions. W. Va.; McKelvey v. Railway Co., 35-500. Va.;Hickman v. Breckenridge, 3 Gratt. 127. P. PARKER v. BUILDING & LOAN ASSOCIATION, 55 W. VA. 134. 20,d. Abstract propositions Failure to connect loith the evidence. W. Va.; Reynolds v. Tompkins, 23-229. xliv TABLE OF CASES PART I. PARSONS v. HAROLD, 46 W. VA. 122. PATTON v. NAVIGATION CO., 13 W. VA. 261. 48,b. Illegal evidence Failure to follow with other evidence. Va.; Alderson v. Miller, 15 Gratt. 273. PERRY v. HORN, 22 W. VA. 381. 55,d. Error appearing on the face of the record Statute defined- W. Va.; Sweeney v. Baker, 13-158. PHELPS v. SMITH, 16 W. VA. 522. PRABST V. DRAEUNLICH, 24 W. VA. 356. 58, i. Exceptions to instructions Setting out sufficient grounds Insufficient grounds. W. Va.; Miller v. Rose, 10-291; Shrewsbury v. Miller, 10- 115. PORTER v. MACK, 50 W. VA. 583. R. RAY v. RAILWAY CO., 57 W. VA. 333. l,a. Reading law to juries prohibited. W. Va.; Bloyd v. Pollock, 27-75; Gregory v. R. R. Co., 37- 606; Ricketts v. Railway Co., 33-433. 2,c. Reading reports of decisions giving evidence of facts in- volved in similar cases prohibited. Same authorities as above. 2,b. Reading text books and reports to juries prohibited. Same authorities as above. REESE v. RAILROAD CO., 42 W. VA. 333. REYNOLDS v. TOMPKINS, 23 W. VA. 229. RHODES v. RAILWAY COMPANY, 49 W. VA. 495. 26,d. Inconsistent instructions Conflicting theories. W. Va.; McCreery v. R. R., 43-110; Price v. Ry. Co., 46-538. ROBINSON v. LOWE, 50 W. VA. 75. 41,a. Singling out facts Ignoring material facts. W. Va.; Price v. R. R. Co., 46-538. TABLE OF CASES PART I. xlv ROBINSON v. RAILROAD COMPANY, 40 W. VA. 583. ROBINSON v. WOODFORD, 37 W. VA. 377. 51,c. Arguments of counsel. W. Va.; Bimbley v. Martin, 28-773. ROWAN & CO. v. HULL, 55 W. VA. 428. RUFFNER v. HILL. 31 W. VA. 428. 48,a. Illegal evidence When party cannot complain of. W. Va.; Miller v. Rose, 21-291; Shrewsbury v. Miller, 10- 115. RUTTER v. SULLIVAN, 25 W. VA. 427. S. SHEFF v. CITY OF HUNTINGTON, 16 W. VA. 307. 16,b. Correct assumption of facts. W. Va.; Newlin v. Beard, 6-110. Va.; Blosser v. Harshbarger, 21 Gratt. 214. SHEPPARD v. INSURANCE CO., 21 W. VA. 370. 19,b. Abstract questions Actions of appellate court as to er- roneous instructions. Va.; Hunter v. Jones, 6 Rand, 54; Pasley v. English, 10 Gratt. 236. SHREWSBURY v. TUFTS, 41 W. VA. 213. 29,g. Correcting faulty instructions. W. Va.; Ruffner v. Hewett, 7-585. Va.; Robertson v. Wright, 17 Gratt. 534; Townes v. Burchell, 12 Leigh. 173. SKEELS v. RAILROAD COMPANY, 3 W. VA. 556. 41,d. Law applicable to facts. W. Va.; Rathbone v. Railroad Co., 1-106. Va.; Clayton v. Anthony, 6 Rand. 285. SNOOKS v. WINGFIELD. 52 W. VA. 442. <57,a. Excluding evidence. W. Va.; Maxwell v. Kent, 49-542. 43,a. Competency of evidence How determined Preliminary facts. xlvi TABLE OF CASES PART 1. SNYDER v. RAILROAD CO., 11 W. VA. 14. STATE v. ALLEN, 45 W. VA. 65. 19,a. Abstract questions Court not required to instruct as to. Va.; Pasley v. English, 10 Gratt. 226. 18,1. Assumption of facts Intimation of court's opinion as to facts. 39,a. Disregarding testimony of witnesses Province of courts as to. 49,b. Intimation of court's opinion of evidence Assuming certain things as facts. W. Va.; State v. Shores, 31-491. STATE v. BEATTY, 51 W. VA. 232. 5,b. Necessity for asking instructions Degrees of punishment. W. Va.; State v. Cobb, 40-718. STAiE v. BETSALL, 11 W. VA. 703. 27,a. Suppositive instructions Evidence tending to prove case. Va.; Early v. Garland, 13 Gratt. 1; Hopkins v. Richardson, 9 Gratt. 485. 47,b,c. Uncorroborated evidence Accomplices Phohibiting in- structions as to. W. Va.; State v. Hurst, 11-54. Va.; Brown's cases, 2 Va. 490; Bjgd's cases, 2 Leigh. 769. STATE v. BINGHAM, 42 W. VA. 239. 28,a,b. Repeating instructions Refusal of instructions when others given on same point. W. Va.; Kerr v. Lunsford, 31-659. Va.; Nicholas' cases, 91 Va. 742. STATE v. BOWYER, 43 W. VA. 102. 74,g. Weighing the evidence by the appellate court. W. Va.; Gilmer v. Sydenstricker, 42-57; State v. Hunter, 37-744. STATE v. CADDLE, 35 W. VA. 73. STATE v. CAIN, 20 'W. VA. 681. STATE v. CLARK, 51 W. VA. 458. TABLE OF CASES PART I. xlvli STATE v. COBB, 40 W. VA. 718. 6,c. Degrees of punishment. W. Va.; State v. Caddie, 35-73. Va.; Wormack v. Circle, 29 Gratt. 192. 26,a. Specific instructions Necessity for asking and giving. Va.; Brook v. Young, 3 Rand. 106; Dejarnette's case, 75 Va. 877; Kitty v. Fitzhugh, 4 Rand. 600; Rosen- baum v. Welden, 18 Gratt. 785. 6,a. Time for offering instructions Discretion of trial-courts as to. W. Va.; Jarrett v. Stevens, 36-445; State v. Davis, 31-390; Tully v. Despard, 31-973. Va.; Gibson's cases, 2 Va. Cases, 70; Gwatkin's case, 9 Leigh. 678; Sledd's case, 19 Gratt. 813. STATE v. COTTRILL, 52 W. VA. 363. 9,a. Author of instructions Who regarded as. Va.; Gray's case, 92-772. 12,c. Incomplete instructions Giving other proper instructions. W. Va.; State v. Prater, 52-132. 29,d. Numerous instructions Instructions clearly laying down the law. W. Va.; State v. Bingham, 42-234. STATE v. CROSS, 42 W. VA. 253. f STATE v. DAVIS, 52 W. VA. 224. 10,d. Instructions not justified by the evidence. W. Va.; State v. Cain, 20-679; State v. Jones, 20-764; State v. Robinson, 20-743. STATE v. DICKEY, 46 W. VA. 319. 17,f. Important and material facts not conceded as true. W. Va.; State v. Robinson, 20-714. Va.; Boswell v. Com., 20 Gratt. 860. STATE v. DICKEY, 48 W. VA. 325. 2,d. Opinion of appellate court commenting on the evidence given at a former trial. W. Va.; Bloyd v. Pollock, 27-75; Gregory v. R. R., 37- 606; State v. Hurst, 11-77. Va.; Brown v. Com. 86-466; Dejarnette v. Com. 75-867; Doss's case, 1 Gratt. 559. xlviii TABLE OF CASES PART I. STATE v. DODDS, 54 W. VA. 289. 41,d. Giving undue prominence to certain facts. W. Va.; McCreery v. R. R., 43-110; Price v. R. R., 46-538; Webb v. Packet Co., 42-800. 9,b. What necessary to insert in instructions. STATE v. DONAHOO, 22 W. VA. 761. STATE v. DOUGLAS, 28 W. VA. 298. STATE v. EVANS, 33 W. VA. 418. STATE v. GREER, 22 W. VA. 800. 10,c. Misleading instructions. 52,a. Self defence Character of accused. W. Va.; State v. Cain, 20-679. 44,a. Weight of testimony Instructions as to prohibited. W. Va.; State v. Thompson, 21-741. STATE v. HARR, '38 W. VA. 59. 6* d. How objection to evidence made available. W. Va.; Gregory v. Ry. Co., 37-606. STATE V. HATFIELD, 48 W. VA. 561. 37,c. Competency of witnesses As to one convicted of felony. W. Va.; Code, Chap. 152, Sec. 17. STATE v. HENRY. 51 W. VA. 284. 59,1. Proceedings of trial-court Presumptions as to regularity of. W. Va.; State v. Beatty, 51-232. STATE v. HERTZOG, 55 W. VA. 75. ll.f. Instructions not adapted to nor based upon the evidence. W. Va.; Hutchinson v. Parkersburg, 23-226; Kerr v. Luns- ford, 31-659; State v. Belknap, 39-427. STATE v. HURST, 11 W. VA. 54. 49,c. Intimation of court's opinion of evidence Influencing the jury. Va.; Doss' case, 1 Gratt. 559; Gregory v. Baugh, 2 Leigh. 665; Keel v. Hubert, 1 Wash. 203; McDowell v. Crawford, 11 Gratt. 405; Rosser v. Gill, 1 Wash. 88. STATE v. KELLISON, 56 W. VA. 691. TABLE OF CASES PART I. xlix STATE v. KERNS, 47 W. VA. 266. 50,e. Intimation of court's opinion of the evidence as to guilt of accused. W. Va.; Neill v. Produce Co., 38-228; State v. Cobbs, 40- 72; State v. Greer, 28-800; State v. Hurst, 11-54; Va.; McDowell v. Coffin, 11 Gratt. 405; Dejarnett v. Com., 75-867. 29,e. Phases of case not presented in other instructions. W. Va.; State v. Allen, 45-66; State v. Cobb, 40-718; State v. Evans, 33-417; State v. Musgrave, 43-672. STATE v. KINNEY, 26 W. VA. 141. 74,i. Irrelevant evidence What authorized, reversal because of admission of. Va.; Insurance Co. v. Trear, 29 Gratt. 255; Payne v. Com., 31 Gratt. 855. STATE v. LOWE, 21 W. VA. 782. 17,d. Facts admitted or sustained by the evidence. W. Va.; Sheff v. City of Huntington, 16-307; State v. Robinson, 20-714. Va.; McDowell v. Crawford, 11 Gratt. 377. STATE v. MANNS, 48 W. VA. 480. 24,e. Instructions not fully stating the law. 24,d. Instructions not justified by the evidence. W. Va.; State v. Jones, 20-764. 31,c. Instructions presenting defence and supported by the evi- dence. W. Va.; State v. Cain, 20-679; State v. Kerns, 47-266. Va.; Honesty's case, 81-283; Jackson v. Commonwealth, 96-107; Parrish v. Commonwealth, 81-1; Stoneman's case, 25 Gratt. 900. STATE v. McGLUMPHEY, 37 W. VA. 805. 61,c,d. When bills of exception may be made and tendered. W. Va.; Ramsburg v. Erb, 16-778; Smith v. Townsend, 21- 486; State v. Miller, 26-106. STATE v. MICHAEL, 37 W. VA. 565. STATE v. MORGAN, 35 W. VA. 260. STATE v. MORRISON, 49 W. VA. 211. STATE v. MUSGRAVE, 43 W. VA. 672. 1 TABLE OF CASES PART I. STATE v. PERRY, 41 W. VA. 642. 39,b. Disregarding testimony of witnesses Province of jury as to. W. Va.; State v. Thompson, 21-741. 47,a. Uncorroborated evidence Province of jury as to. W. Va.; State v. Betsall, 11-740; State v. Cooper, 26-338; State v. Morgan, 35-273; State v. Thompson, 21- 741. STATE v. PINE, 56 W. VA. 1. STATE v. POINDEXTER, 23 W. VA. 805. 17,e. Assumption of facts State of facts unsupported by the evi- dence. W. Va.;Winkler v. Ry. Co., 12-609. STATE v. PRATER, 52 W. VA. 133. 12,d. Incomplete instructions Giving other proper instructions. W. Va.; Clark v. Donaldson, 15-804; Fant v. Lamon, 22-229. STATE v. ROBINSON, 20 W. VA. 714. STATE v. SHEPPARD, 49 W. VA. 585. 43,a. Circumstantial evidence What necessary for conviction on. (Note: The court in this case holds that, "beyond a rea- sonable doubt" and "to a moral certainty" are equivalent terms.) W. Va.; Kerr v. Lunsford, 31-662; State v. Baker, 33-319; State v. Flanagan, 26-117. ll,g. Failure of instructions to refer to the evidence. Overruling Jarrett v. Stevens, 36 W. Va. 445. STATE v. SUTPHIN, 22 W. VA. 772. STATE v. TAYLOR, 57 W. VA. 228. 38,b. Mistake in not swearing witnesses Discovery of after verdict. W. Va.; State v. Lowry, 42-205; State v. Thompson, 21-741. 49,a. Intimation of court's opinion of weight of evidence. W. Va. ; State v. Hunt, 11-75. Va.; McDowell v. Crawford, 11 Gratt. 405. 49,d. Same and same authority cited. TABLE OF CASES PART I. II STATE v. THOMPSON, 21 W. VA. 742. 49,a. Discussion of evidence by the court. W. Va.; State v. Hurst, 11-75. Va.; McDowell v. Crawford, 11 Gratt. 405. 49,d. Intimation of court's opinion of evidence. Citing same authorities as above. STATE v. THOMPSON, 26 W. VA. 150. 72,a. Setting aside the verdict Necessity for motion for. W. Va.; Danks v. Rodeheaver, 26-274; State v. Phares, 24- 757. STATE v. TUCKER, 52 W. VA. 421. STATE v. WELCH, 36 W. VA. 691. 53,c. Degrees of punishment Whether murder in first or second degree. W. Va.; State v. Robinson, 20-713. Va.; Willis's case, 32 Gratt. 929. STATE v. WILLIAMS, 49 W. VA. 220. STATE v. WOODROW, 58 W. VA. . 37,b. Competency of witness Wife not a competent witness against her husband in a prosecution for crime. W. Va.; Code, Chap. 152, Sec. 19. 30,c. Oral instructions Refusal of correct written instructions. W. Va.; State v. Kerns, 47-266. Va.; Booth v. Com., 4 Gratt, 525; Morrelick v. Pankly, 91-259; Norfolk Co. v. Marpole, 97-594; Ry. Co. v. Norment, 84-167; Simms v. McConnell, 86-498. STATE v. ZIEGLER, 40 W. VA. 594. 75,k. Setting aside the verdict Wholly insufficient evidence. W. Va.; State v. Foster, 21-767. Va.; Grayson v. Commonwealth, 6 Gratt. 712. STEWART V. DOAK, 58 W. VA. . STORRS v. FEICK, 24 W. VA. 606. 42,c. Singling out facts Existence of other facts. W. Va.; McMechen v. McMechen, 17-684. Va.; Beury v. Ensel, 2 Gratt. 333; Dogan v. Leekright, 4 H. & M. 125; Dyerle v. Starr, 28 Gratt. 800. Ill TABLE OF CASES PART I. T. TAYLOR v. RAILROAD CO., 37 W. VA. 40. 75,1. Illegal evidence Presumptions as to. W. Va.; Hall v. Lyons, 29-410; Thomas v. Electrical Co.. 54-395. 13,b. Instructions correctly propounding the law. W. Va.; Hall v. Lyons, 29-410; Thomas v. Electrical Co., 54- 395. 15,h. Modification of instructions Harmless modification of proper instructions. W. Va.; Elaine v. R. R. Co., 9-253; Sheff v. City of Hunting- ton, 16-307; Washington v. R. R. Co., 17-190. THOMAS v. ELECTRICAL CO., 54 W. VA. 395. W. Va.; Johnson v. R. R. Co., 25-570; Ketterman v. R. R. 48-606; Woolwine v. R. R., 36-329. THOMPKINS v. INSURANCE CO., 53 W. VA. 479. TOMPKINS v. KANAWHA BOARD, 21 W. VA. 224. TRACEWELL v. COUNTY COURT, 58 W. VA. . TRACY v. COAL CO., 58. W. VA. . 6C,i. Skeleton bills of exception Hoic made part of the record. W. Va.; Gunn v. R. R. Co., 37-421; McKendree v. Shelton, ri-516. 66, j. Same Time within which to certify and identify the evi- dence. W. Va.; Same as above. 65,g. Stenographic reports Hoic made part of the record. W. Va.; Same as above. TULLEY v. DESPARD, 31 W. VA. 370. 7,d. Time for offering instructions Abuse of discretion of trial- courts as to. W. Va.; Organ Co. v. House, 25-64; 68. TURNER v. RAILROAD CO., 40 W. VA. 675. 14.f. Failure to modify instructions. W. Va.; Gregory v. R. R. Co., 37-606. TABLE OF CASES PART I. liii V. VAN WINKLE v. BLACKFORD, 28 in such case, if the judge who presided at the trial is satisfied with the verdict and refuses to set aside, the appellate court will not reverse the judgment and set aside the verdict on the ground that it rested solely on the uncorroborated testimony of an ac- complice. State v. Betsall, 11 W. Va. 704. 44. ISOLATED PORTIONS OF EVIDENCE. a. Giving undue prominence to. It is not error to refuse to give an instruction that gives 48 LEGAL PRINCIPLES GOVERNING INSTRUCTIONS. undue prominence to isolated portions of the evidence, and therefore calculated to mislead the jury. State v. Morrison, 49 W. Va. 211. 45. INADMISSIBLE OR ILLEGAL EVIDENCE. a. When party cannot complain of. b. Failure to follow with other evidence. a. When party cannot complain of. Upon a writ of error to an order of the circuit court setting aside the verdict of a jury and awarding a new trial, the plaintiff in error can nqt, for the purpose of having such order reversed, complain in this court that the trial-court admitted illegal evidence, or gave the jury improper instructions. Ruffner v. Hill, 31 W. Va. 428. b. Failure to follow with other evidence. If a party introduce evidence, not admissible by itself, and fail to follow it with other evidence, to make it ad- missible, it is to his own folly and loss, and not to the injury to the other party ; and the court should direct the jury to disregard it. Patton v. Navigation Co., 13 W. Va. 260. 46. INTIMATION OF COURTIS OPINION OF EVIDENCE. a. Discussion of evidence Effect of evidence Credibility of witnesses. b. Assuming certain things as facts. c. Influencing the jury. d. Same Weight of evidence. e. As to the guilt of the accused. LEGAL PRINCIPLES GOVERNING INSTRUCTIONS. 49 a. Discussion of evidence Effect of evidence Credi- bility of witnesses. Under our practice, the judge must not state the evi- dence, or discuss, or give, or intimate his opinion upon it. If anything drops from him, either casually or inad- vertently, in giving instructions, or otherwise, indicating an opinion on the weight or effect of the evidence, or the credibility of a witness, it is generally ground for re- versal. Cases cited in State \. Thompson, 21 W. Va, 756. b. Assuming certain things as facts. When an instruction of the court assumes certain things as facts, and is in such shape as to intimate to the jury what the judge believes the evidence to be touching such facts, it is error to give such instruction, although it may propound the law correctly. State v. Allen, 45 W. Va. 06. c. Influencing the jury. It is error for the court in the trial of a cause, to make a remark to, or in the presence of the jury, in reference to matters of fact, which might, in any degree, influence them in their verdict. State v. Hurst, 11 W. Va. 54. d. Same Weight of evidence. The courts of this state are peculiarly jealous of any encroachment by the court on the province of the jury, and it is error for a court, in the trial of a case, to inti- mate any opinion in reference to matters of fact, which might, in any degree, influence the verdict, nor can the court instruct the jury as to the weight to be given by them to the evidence of any witness, whether the witness be impeached or not, or whether he is contradicted as to 50 LEGAL PRINCIPLES GOVERNING INSTRUCTIONS. material facts or not. The jury are the exclusive judges of the weight to be attached to the evidence of any wit- ness, and the court would err in influencing them, in any way, determining this weight, either by instruction as to the proper manner in ascertaining such weight, or other- wise. State v. Thompson, 21 W. Va. 756. e. As to the guilt of the accused. Instructions given by the trial court, on its own mo- tion, in a felony case, which may convey to the jury the opinion of the court as to the guilt of the accused are improper. State v. Kerns, 47 W. Va. 266. 47. ARGUMENTS OF COUNSEL. a. Abuse of privileges Necessity for instructions as to. b. Same. c. Failure of opposing party to examine a material witness. a. Abuse of privileges Necessity for instructions as to. In order to authorize this court to revise errors predi- cated upon the abuse of counsel of the privilege of argu- ment, it should be made to appear that the party asked and was refused an instruction to the jury to disregard the unauthorized statements of the counsel. Landers v. Railroad Co., 46 W. Va. 492. b. Same. Comment by an attorney for the state, in his argument of a felony case upon the failure of the accused, who has testified in the case, to have his wife testify and cor- roborate statements of his own as to matters said bv him LEGAL PRINCIPLES GOVERNING INSTRUCTIONS. 51 to be known to her, is improper; and, if objected to at the time, the refusal of the court to prohibit it and direct the jury to disregard it is reversible error. State v. Tay- lor, 57 W. Va. 228. c. Failure of opposing party to examine a material wit- ness. It is not improper for the trial-court to permit counsel in argument before the jury to comment on the fact that the other party has not called and examined a material witness summoned on his behalf and present, and to ask such question as may be proper to lay the foundation for such comment. But such matters are largely within the discretion of the trial-court. Robinson v. Woodford, 37 W. Va. 377. 48. PROBABLE CAUSE. a. Mixed questions of law and fact Province of courts as to. Probable cause is a mixed question of law and fact. What are the existing facts, on which probable cause or its absence is based, is a question of fact to be decided by the jury. But the facts being admitted, undisputed or assumed, whether they constitute probable cause or not, or whether from them the existence or absence of probable cause is to be inferred, is a pure question of law for the decision of the court, and not for the jury. Vinal v. Core, 18 W. Va. 2. 49. EXISTENCE OP MALICE. a. Right of courts to define malice. Whether malice exists or not is a pure question of fact 52 LEGAL PRINCIPLES GOVERNING INSTRUCTIONS. for the jury, and should not be passed upon by the court, except to define to the jury clearly what is meant by malice. Whether particular facts admitted, undisputed or assumed, do, or do not constitute malice, or are such that malice may be inferred from, is a mere question of fact for the jury. The court can draw no inference from any state of facts that malice does or does not exist. Vinal v. Core, 18 W. Va. 2. 50. SELF-DEFENSE. a. Character of assault. An instruction is correct, which informs the jury that a party cannot shield himself under the plea of self-de- fense, if he had reason to believe and did believe that the assaulting party only intended to commit a trespass, and did not intend to take life or inflict great bodily harm. State v. Greer, 22 W. Va. 802. 51. CHARACTER OF ACCUSED CHARACTER OP VICTIM. a. Admissibility of evidence as to character of ac- cused and victim. b. Assailment of character of accused. a. Admissibility of evidence as to character of accused and victim. The bad character of the victim never excuses, justifies or extenuates the offense of killing, except when in con- nection with other facts it make out a case of self de- fense. The accused is never permitted to say of his vic- tim, "I killed him because he was bad man," nor is he permitted to prove his bad character upon that theory. LEGAL PRINCIPLES GOVERNING INSTRUCTIONS. 53 Evidence of the good character of the accused is always admissible in such cases to disprove guilt, and of his pacific character to aid the jury in ascertaining the prob- able grade of the offense. State v. Morrison, 49 W. Va. 219. b. Assailment of character of accused. It was not error to refuse to instruct the jury that evi- dence of good character cannot be received in behalf of the prisoner, until his character has been assailed. State v. Donohue, 22 W. Va. 762. 52 DEGREES OP PUNISHMENT. a. Failure of evidence to establish. b. Whether voluntary manslaughter or homicide. c. Whether murder in first or second degree. a. Failure of evidence to establish. The refusal of an instruction, on a trial for murder, giving the findings in the power of the jury, including one of involuntary manslaughter, is not error when no evi- dence in the case tends to show that degree of homicide. Such instruction should not be given. State v. Woodrow, 58 W. Va. . b. Whether voluntary manslaughter or homicide. Whether a homicide is voluntary manslaughter or homi- cide in self defense, is a question of fact for the jury upon the evidence. State v. Dickey, 48 W. Va. 325. c. Whether murder in first or second degree. The question whether a particular homicide is murder in the first or second degree is one of fact for the jury. State v. Welch, 36 W. Va. 691. 54 LEGAL PRINCIPLES GOVERNING INSTRUCTIONS. IV. EXCEPTIONS TO INSTRUCTIONS. 1. NECESSITY FOR EXCEPTIONS. 2. PURPOSE OF EXCEPTIONS REQUISITES OF EXCEP- TIONS. 3. TIME FOR OBJECTING EXCEPTING OFFERING MAKING TENDERING SIGNING CERTIFYING NOTING AND RECORDING EXCEPTIONS AND BILLS OF EXCEPTION. 4. NECESSITY FOR SIGNATURES OF TRIAL-JUDGE. 5. CERTIFYING THE EVIDENCE. 6. EXCLUDING EVIDENCE. 7. WHAT ORDER-BOOK AND RECORD OF TRIAL COURT MUST SHOW ALTERATION OF THE RECORD. 8. SETTING ASIDE THE VERDICT. 1. NECESSITY FOR EXCEPTIONS. a. What notice exeeptor required to give Waiv- ing exceptions. b. General exceptions When sufficient. c. Same. d. Error appearing on the record Statute con- cerning defined. a. What notice exceptor required to give Waiving ex- ceptions. If a party upon a trial before a jury objects to the giv- ing of instructions, and after his objections are over- ruled and the instructions given, he does not except to the giving of the instructions, he will, in the appellate court, be deemed to have waived his objections. It is not enough that he objects, but upon the overruling of his EXCEPTIONS TO INSTRUCTIONS. 55 objection, if he would save the alleged error in the giving of the instruction, he must except and thereby give notice that he intends to have the rulings reviewed, so as to give the trial court an opportunity to re-examine the instruc- tions and correct any error in giving such instructions. Dimmey v. Railroad Co., 27 W. Va. 52. b. General exceptions When sufficient. It is unnecessary that there should be separate bills of exception taken and signed to each ruling or opinion of the court excepted to, to entitle the party excepting to such opinion or ruling to have the same reviewed by an appellate court. Exceptions of a party to the opinions of the court, though they may be numerous, may be in- corporated into one bill of exceptions. Snyder \. Rail- road C"o., 11 W. Va. 14. c. Same. When several instructions are asked and refused, and a general exception is taken to the refusal, if all the in- structions are proper and should have been given, the exception is sufficient and the judgment will be reversed. Ocheltree v. McClung, 7 W. Va. 233. d. Error appearing on the record Statute concerning defined. The provision of the statute that "a party may avail himself of any error appearing on the record, by which he is prejudiced, without excepting thereto," means with- out obtaining a formal bill of exceptions, provided he ob- jects or excepts on the record to the action of the court complained of, and provided it is such a matter as can be considered without a formal bill of exceptions. Perry v. Horn, 22 W. Va. 381. 56 EXCEPTIONS TO INSTRUCTIONS. 2. PURPOSE OF EXCEPTION'S REQUISITES OF EXCEP- TIONS. a. Office of bills of exceptions What exceptor must show. b. In general What bills of exception and record mush show. c. How bills of exception must present the case. d. Necessity for certifying sufficient evidence to show relevancy of instructions. e. Same. f. Failure to set forth sufficient matter to show whether instructions are correct. g. Exceptions to part of instructions only. h. Exceptions raised in another bill of exceptions. i. Setting out sufficient grounds Insufficient grounds. j. Saving points What necessary, k. Waiving points When regarded as waived. 1. Presumption as to regularity of proceeding of trial court. a. Office of bills of exception What exceptor must show The office of a bill of exception is to call the attention of the court to some specific matter as to which error is claimed, and when the acceptant relies upon the bill of exceptions he must show by means of it the error com- plained of clearly and affirmatively ; and in order to have relief he must further show that such error was to his prejudice. State v. Tucker, 52 W. Va. 421. b. In general What bill of exceptions and record must show. If errors, or supposed errors, are committed by a court EXCEPTIONS TO INSTRUCTIONS. 57 in its rulings during the trial of a case by a jury, the ap- pellate court cannot review these rulings unless, first, they were objected to when made and the point saved and a bill of exceptions taken showing these rulings and unless, sec- ond, a new trial was asked of the court below and refsed, and such refusal objected to in the court below, and this appears of record. If either of these essentials is omitted, the appellate court cannot review the rulings. Danks v. Rodeheaver, 26 W. Va, 274. c. How bills of exception must present the case. The bill of exception must so present the case that the appellate court may be able to determine whether the jury has correctly applied the law to the facts, in order that it may safely correct any error committed by the jury, the presumption being always in favor of the ver- dict; and therefore, unless the error complained of is made to appear affirmatively, it will not be disturbed. Black v. Thomas, 21 W. Va. 712. d. Necessity for certifying sufficient evidence to show relevancy of instruction. Where the court refuses an instruction to the jury, the appellate court will not reverse the judgement, unless enough of the evidence has been set out in the exception to show the relevancy and propriety of the instruction, be- cause error must affirmatively appear; and for the same reason, if the court give the instruction, before the ap- pellate court will reverse the judgment, the record must show the instruction wrong, or that it could not, in any aspect of the case, be properly given. Kinsley v. County Court, 31 W. Va. 464. 58 EXCEPTIONS TO INSTRUCTIONS. e. Same. Error based on the giving or refusal of instructions ought to be shown by bill of exceptions giving the instruc- tions and enough of the evidence to show whether they were proper; but where the record otherwise identifies the instruction, and shows an exception, and the whole evidence appears, that will suffice, without such bill of exceptions. Hughes v. Frum, 41 W. Va. 44(>. f . Failure to set forth sufficient matter to show whether instructions are correct. Where a bill of exceptions taken to the instructions of the court below does not set forth sufficient matter to show whether the instructions were correct or not, the presump- tion must be that they were correct. Lively v. Ballard, 2 W. Va. 496. g. Exceptions to part of instructions only. Where a number of instructions are asked for and the record states an exception to the refusal to give a part of them only, the inference is that the court gave those to which no exception was taken. Hood v. Maxwell, 1 W. Va. 219. h. Exceptions raised in another bill of exceptions. When a bill of exceptions has been taken after all the evidence has been submitted, and it purports to set out all the evidence, the evidence set out in this bill of excep- tions may be looked to in considering the questions raised in another bill of exceptions taken in the progress of the trial. Klinkler v. 8. & I. Co., 43 W. Va. 219. i. Setting out sufficient grounds Insufficient grounds. When the bill of exceptions sets out the specific grounds EXCEPTIONS TO INSTRUCTIONS. 59 on which the court set aside the verdict of the jury, this court will presume, unless the contrary appears, that it acted on those grounds alone, and if those grounds are clearly insufficient, this court will reverse the order set- ting aside the verdict; but generally, it takes a stronger case to reverse an order granting than it does one refus- ing a new trial. Probst v. Braeunlish, 24 W. Va. 357. j. Savings points What necessary. All that should be required to save a party his point is, that it shall definitely appear on the record, the point by which he is aggrieved, and that he saved his point and did not waive it. Perry v. Horn, 22 W. Va. 383. k. Waiving points When regarded as waived. If a part} 7 upon a trial before a jury objects to the giv- ing of instructions, and after his objections are over- ruled, and the instructions are given, he does not except to the giving of the instructions, he will, in the appellate court, be deemed to have waived his objections. Dimmey v. Railroad Co., 27 W. Va. 32. 1. Presumption as to regularity of proceedings of trial court. Errors in the rulings of the court, made during the trial, and as to other matters not vital and jurisdictional in their nature, but such as may be waived, must be af- firmatively shown by the record, else the proceedings are conclusively presumed to be regular. State v. Henry, 51 W. Va. 284. 3. TIME FOR OBJECTING, EXCEPTING, 60 EXCEPTIONS TO INSTRUCTIONS. OFFERING, MAKING, TENDERING, SIGNING, CERTIFYING, NOTING, AND RECORDING EXCEPTIONS AND BILLS OF EXCEPTION. a. When objection to instructions must be offered. b. When exceptions may be made. c. When bills of exception must be made. d. When bills of exception may be tendered. e. Time within which bills of exception must be signed. f. Certification of bills of exception to clerk Duty of clerk to record. g. Necessity for properly certifying bills of excep- tion. h. When bills of exception must be noted, certified and recorded. a. When objection to instructions must be offered. Where no objection is offered to an instruction before the verdict, the giving of the same cannot be ground for setting aside the verdict and granting a new trial. Cor- der v. Bank, 34 W. Va. 38. b. When exceptions may be made. An exception made to the opinion of the court pending a jury trial should be made at the time of its expression, but it is not too late if made before the retirement of the jury. An exception for refusal to set aside the verdict EXCEPTIONS TO INSTRUCTIONS. 61 may be made not later that the close of the term. Gilmer v. Sydenstricker, 42 W. Va. 52. c. When bill of exceptions must be made. A bill of exceptions or certificate of facts upon a trial, not made before the close of the term at which final judg- ment is rendered, nor within thirty days after its close, is no part of the record, and cannot be considered in this court. State v. HcGlumpTiy, 37 W. Va. 805. d. When bill of exceptions may be tendered. If a point has been raised at the proper time, the bill of exceptions as to such point may be tendered to the court at any time during the term at which final judg- ment was rendered, or within thirty days after the close of the term. State v. McGlumpliy, 37 W. Va. 806. e. Time within which bills of exception must be signed. Bills of exceptions must be signed, either during the term at which final judgment is rendered or within thirty days after its close, else they are no part of the record, and cannot be considered by this court. Jordan v. Jordan, 48 W. Va. 600. f. Certification of bills of exception to clerk Duty of clerk to record. Where a judgment is rendered in a case, and the court allows thirty days, under the statute, to make up and obtain from the judge in vacation bills of exception, such bills of exception, when signed by the judge, must be cer- tified to the clerk of the court, who must enter them upon the order-book of such court before they become a part of the record of the case. Craft v. Mann, 46 W. Va. 478. 62 EXCEPTIONS TO INSTRUCTIONS. g. Necessity for properly certifying bills of exception and making part of the record. When alleged bills of exception are not properly certi- fied and made parts of the record, this court will not con- sider the grounds of error thereby presented. Furbee v. Shay. 40 W. Va. 736. h. When bills of exception must be noted, certified and recorded. A bill of exceptions executed in the term must be noted in the record not later than the term of judgment. If in vacation, it must be executed and certified as executed, and ordered to be made a part of the record by the judge within thirty days after the end of the term of final judg- ment, and the certificate must be recorded in the law-order book, though such recordation need not be within the thirty days; otherwise, the bill will not be treated as a part of the record. Wells v. Smith, 49 W. Va. 78. 4. NECESSITY FOR SIGNATURE OF TRIAL-JUDGE. a. Effect of want of signature. b. Authority of special judge to sign. a. Effect of want of signature. A bill of exceptions must be signed by the judge, else it cannot be considered in the appellate court. Adkins v. Insurance Co., 45 W. Va, 384. b. Authority of special judge to sign. A judge selected under the provisions of chapter 112, Code, to try a certain case, who does try such case, be- comes the court with regard to such case for all purposes, EXCEPTIONS TO INSTRUCTIONS. 63 and may sign bills of exceptions therein within thirty days after the adjournment of the term, at which the trial is had, in all respects as though he were the regular judge of such court. Carper v. Cook, 39 W. Va. 346. I 5. CERTIFYING THE EVIDENCE. a. Necessity for certifying all the evidence. b. Certifying the facts and not the evidence not prohibited. c. Necessity for certifying either the facts or the evidence. d. How objection to admission of evidence made available. e. Compelling trial-courts to sign bills of excep- tions. f. Same Effect of answer to rule Requirements to sign and certify proper bills of exception. g. Stenographic reports How made part of the record. h. Same Consideration of when made part of certificate of evidence Necessity for dis- tinct specifications as to. i. Same Skeleton bills of exception. j. Same Time within which to certify and k. After-discovered evidence Effect of failure to certify. a. Necessity for certifying all the evidence. Under section 9, chapter 131, Code, when exception is taken to the action or opinion of the court upon a ques- tion involving evidence upon a motion for a new trial, or otherwise, all the evidence, whether conflicting or not, 64 EXCEPTIONS TO INSTRUCTIONS. inus.t be certified, and this court must consider all such evidence on both sides, though conflicting, not rejecting any. If, upon such evidence, the finding of the jury plainly appears to be contrary to the evidence, or without suffi- cient evidence, or plainly against the decided and clear preponderance of evidence, it ought to be set aside, even though the evidence be conflicting. Laidley v. County Court, 44W. Ya. 566. b. Certifying facts and not the evidence not prohibited. Section 9, chapter 131, Code, does not prohibit the supreme court of appeals from considering a case where the facts proven on the trial, and not the evidence, are certified. King v. Jordan, 46 W. Va. 106. c. Necessity for certifying either the facts or the evi- dence. Where a motion is made in the circuit court to set aside a verdict on the ground that the same is contrary to the evidence, and the court fails to certify all the evidence offered or all the facts proved, this court cannot review or reverse the judgment for that cause. Ilsley v. Wilson, 42 W. Va. 758. d. How objection to admission of evidence made available. To make available in the appellate court an objection taken during the trial to the admission of evidence, the point must be made and properly saved by some bill of exceptions. It is not enough merely to note the ob- jection and exception in the certificate of evidence. State v. Harr, 38 W. Va. 59. EXCEPTIONS TO INSTRUCTIONS. 65 e. Compelling trial-courts to sign bills of exception What petition must set forth. If an inferior court erroneously refuse to sign a bill of exceptions to its judgment in granting or overruling a motion for a new trial, on the ground that the verdict is or is not warranted by the evidence, it may be compelled to do so by mandamus from the appellate court; but it will not be required to do so, unless the facts or the evidence, which it is alleged the court erroneously refused to certi- fy, are set forth in the petition for the mandamus or in some other proper manner brought before the appellate court, so that it may determine therefrom whether or not a prima facie case of error has been affirmatively made out. Otherwise, the writ of mandamus nisi will not be awarded. Moragn v. Fleming,, 24 W. Va. 187. f. Same Effect of answer to rule Requirements to sign and certify proper bills of exception. A judge will not be compelled by mandamus to sign a particular bill of exceptions, when he alleges in his answer to a rule in this court that such bill does not truly state the facts. The judge has sole power in determining whether such bill is true or not. His return to the writ is conclusive on this point and cannot be traversed. It is necessary, however, that he should settle and sign a proper bill, which he must certify, and which does con- tain the facts and the truth. Cummings v. Armstriong, 34 W. Va. 1. g. Stenographic reports How made part of the record. Evidence taken down and transcribed by a shorthand reporter is not a part of the record, and can only be made so, by a proper bill of exceptions. Tracey v. Coal Co., 58 W. Va. . (J6 EXCEPTIONS TO INSTRUCTIONS. h. Same Consideration of when made part of certificate of evidence Objections to evidence and ruling of court Necessity for distinct specifications as to. Where a stenographic report of evidence is made part of the certificate of evidence upon a motion for a new trial, and it shows objections to questions or evidence, and rulings of the court thereon, and that such rulings were excepted to, and the particular question or evidence complained of is specified distinctly in the motion for a new trial, or in an assignment of error, or in brief of coun- sel, so that the appellate court can readily and safely find the particular question or evidence to which the ex- ception relates, the appellate court will consider the matter excepted to, though there be no formal bill of exceptions thereto; but such matter will not be con- sidered without such specification, even though such re- port of evidence notes such objection and exception. Kay v. Railroad Co., 47 W. Va. 467. i. Same Skeleton bills of exceptions. A skeleton bill of exceptions may be adopted for the purpose of making evidence taken down and transcribed by a shorthand reporter a part of the record, but at the same time the bill is signed the evidence must be actually transcribed, and, unless it is attached to the bill, it must bear some mark of identification, such as is required in making any other paper or document a part of such bill. Tracey v. Coal Co., 58 W. Va. . j. Same Time within which to certify and identify such evidence. Where a skeleton bill of exceptions is taken for the pur- pose of making evidence a part of the record, and where EXCEPTIONS TO INSTRUCTIONS. 67 such evidence has not been actually transcribed, or if transcribed, is not referred to in such way as to make it a part of the bill, it cannot, after the expiration of thirty days since the adjournment of the term at which final judgment was rendered, be certified and identified so as to become a part of the bill. Tracey v. Coal Co., 58 W. Va. k. After-discovered evidence Effect of failure to cer- tify. Where there is a motion to set aside a verdict and grant a new trial on the ground of after-discovered evi- dence, and there is in the record no certificate of the evi- dence or facts proven, the bill of exceptions raising such exception will not be considered by the appellate court, it being impossible to ascertain whether the after-discov- ered testimony is merely cumulative or is of such a character as ought to produce a different result on a new trial. Rutter v. Sullivan, 25 W. Va. 427. 6. EXCLUDING EVIDENCE. a. Necessity for relevancy of evidence excluded. A bill of exception to the action of the court in exclud- ing the evidence offered is not available as ground of error, unless it shows that the evidence was, or would have been, relevant, material and important. Snooks v. Wing- field, 52 W. Va. 442. 7. WHAT ORDER-BOOK AND RECORD OF TRIAL-COURT MUST SHOW ALTERATION OF THE RECORD. A. What necessary to make part of the record, b. Necessity for order filing bills of exception. 68 EXCEPTIONS TO INSTRUCTIONS. c. What order of trial-court must show. d. What order book of trial-court must show. e. What the record must show. f. Memoranda made on record book of trial-court. g. Instructions copied into the record. h. Copy of paper attached to pleadings. i. Reference to papers that may be safely copied into the record. j. Papers purporting to be part of bills of excep- tion. k. Identification papers not incorporated into the bill of exceptions. 1. Identification of papers referred to. m. Alteration of the record How record restored Inserting matter not part of the record. a. What necessary to make part of the record. The mere fact that a bill of exceptions appears to have been signed by the judge, and is found among the papers of the case, does not make it a part of the record of the case. To make such bill of exceptions a part of the rec- ord so that the appellate court may consider it, the rec- ord of the proceedings of the court must show sub- stantially ,that the bill of exceptions was tendered, re- ceived and signed, and directed to be made a part of the record. Wickes v. Railroad Co., 14 W. Va. 178. b. Necessity for order filing bills of exception. It is stare decisis rule of this court that a bill of ex- ceptions copied into the record, when there is no order filing the same, is not a true part of the record, and will not be considered. Mayer v. Frobe, 40 W. Va 248. EXCEPTIONS TO INSTRUCTIONS. 69 c. What order of trial-court must show. Where the record does not show that a bill of ex- ceceptions had been made a part of the record by order of the court below, the appellate court will not consider it a part of the record, and will not look to it for any purpose upon a writ of error. Phelps v. Smith, 16 W. Va. 522. d. What order book of trial-court must show. The record entered in the law order book of a circuit court must attest that a bill of exception was executed and made part of the record, else such bill cannot be con- sidered, though inserted in the record by the clerk. Ad- kins v. Insurance Co., 45 W. Va. 384. e. What the record must show. The record entered in the law-order book of a circuit court must attest that a bill of exception was executed and made part of the record, else such bill cannot be con- sidered, though inserted in the record by the clerk. If the record attests its execution, the bill will be considered. Adkins v. Insurance Co., 45 W. Va. 384, 386. f. Memoranda made on record book of trial-court. If on the record-book a memorandum is made of ex- ceptions taken by the plaintiff to the rulings and decis- ions of the court, one of which is an exception to an in- struction given to the jury, and the other an exception to the refusal of the court to award a new trial, in which the evidence is all certified, upon a writ of error this court will review the rulings and decisions of the court, though the objection to the refusal of the court to award a new trial was not entered on the face of the record- 70 EXCEPTIONS TO INSTRUCTIONS. book, except by the noting of these exceptions and mak- ing them thus a part of the record, and thus showing on their face, that these rulings and decisions of the court, including the refusal to grant a new trial, were objected to by the plaintiff. Van Winkle v. Blackford, 28 W. Va. 671. g. Instructions copied into the record. Instructions copied into the record, when there is no bill of exceptions or order of the court referring to them, will not be regarded as part of the record. Winters v. Null, 31 W. Va. 450. h. Copy of paper attached to pleadings Presumption as to. A copy of a paper attached to a pleading in the case which purports to be the same as the paper mentioned in the bill of exceptions, does not make it a part of that bill, nor can this court presume that it is the same paper read in evidence and excepted to. McKendree v. Shelton, 51 W. Va. 516. i. Reference to papers that may be safely copied into the record. When a bill of exceptions makes such reference to a paper as will enable it to be safely copied into the rec- ord, and acted on as a true paper, said reference makes said paper a part of said bill. Gunn v. Railroad Co., 37 W. Va. 421. j. Papers purporting to be part of bills of exception. A paper purporting to be a bill of exceptions and copied into the record as such, will not be regarded or treated by EXCEPTIONS TO INSTRUCTIONS. 71 the appellate court as a part of the record, unless the rec- ord shows that it was by some order or memorandum en- tered on the order book of the trial-court, made a part of the record. Koontz v. Koontz, 47 W. Va. 31. k. Identification of papers not incorporated in the bill of exceptions. When a paper which is to constitute a part of a bill of exceptions is not incorporated into the body of the bill, it must be annexed to it, or so marked by letter, or other means of identification mentioned in the bill, as to leave no doubt, when found in the record, that it is the one referred to in the bill of exceptions, otherwise it will be disregarded. McKendree v. Shelton, 51 W. Va. 516. 1. Identification of papers referred to. Where a record or other writing makes such reference to another writing by number, or other earmark, so that it may be safely identified, that makes such writ- ing a part of the record or writing referring to it. Hughes v. Frum, 41 W. Va. 446. m. Alteration of the record How record restored In- serting matter not part of the record. If a record of a circuit court has been altered, it can be restored to its original state only in that court, and not by the supreme court on writ of error or appeal ; though when so retored in the circuit court, and certified to the supreme court, it will be there treated as in its true and restored state. But where a bill of exceptions or memorandum of such bill, or any document, is in- serted in a transcript of the record, which is no part of the record, that fact may be shown in the supreme court, 72 SETTING ASIDE THE VERDICT. and will be treated as no part of the record. Wells v. Smith, 49 W. Va. 79. 8. SETTING ASIDE THE VERDICT. a. Necessity for motion for Waiver of errors. b. Same Waiving exceptions. c. When the judgment is plainly right. d. When the verdict is not supported by the evi- dence. e. How verdict regarded by appellate court. f. Verdict based on mere conjecture Burden of proof. g. Weighing the evidence by the appellate court, h. Preponderance of evidence. i. Irrelevant evidence, j. Conflicting evidence, k. Wholly insufficient evidence. 1. Illegal evidence. in. Newly discovered evidence Presumption as to. n. Harmless error. a. Necessity for motion for. Waiver of errors. In a case tried by a jury, no matter how many excep- tions are taken to rulings of the court during the trial, unless a motion is made in the trial-court to set aside the verdict, and that motion is overruled and an excep- tion taken, or objection made to the overruling of such motion is noted on the record, all such errors will, by the appellate court, be deemed to have been waived. State v. Thompson, 26 W. Va. 150. b. Same Waiving exceptions. Where exceptions are taken during the trial to the SETTING ASIDE THE VERDICT. 73 judgment of the court in giving or refusing to give in- structions to the jury, or in admitting or rejecting evi- dence, unless a motion is made in the trial-court to set aside the verdict, and that motion is overruled, the appel- late court will regard such exceptions as waived and will not review the rulings. Brown v. Brown, 29 W. Va. 777. c. When the judgment is plainly right. Where, on consideration of the whole record, the judg- ment is plainly right, this court will not reverse the judgment for errors of law, which if not committed, would not have produced a different result. Bank v. Napier, 41 W. Va. 482. d. When the verdict not supported by the evidence. Where the verdict of a jury is wholly without evidence on a point essential to a finding, or the evidence is plainly insufficient to warrant such finding by the jury, the same should be set aside and a new trial awarded. Vintroux v. Simms, 45 W. Va. 548. e. How verdict regarded by appellate court. The verdict of a jury will be held sacred by this court unless there is a plain preponderance of credible evi- dence against it, evincing a miscarriage of justice from some cause, such as prejudice, bias, undue influence, misconduct, oversight, or misconception of the facts or law. Young v. R. R. Co,. 44 W. Va. 218. f. Verdict based on mere conjecture Burden of proof. A verdict based alone on mere conjecture, without evidence to support it, where the rule as to the burden of 74 SETTING ASIDE THE VERDICT. proof requires some reliable affirmative evidence, should not be permitted to stand. Robinson v. Railroad Co., 40 W. Va. 583. g. Weighing the evidence by the appellate court. Why have juries if appellate judges are to go into the weighing of evidence as if by the ounce or pound? We ought not do this. It is an abuse of power and a misconception of our functions and of the jury function. The jury institution is sacred under our Constitution and a verdict is to be highly respected. State v. Bowyer, 43 W. Va. 182. h. Preponderance of evidence. When the evidence plainly, clearly and decidedly pre- ponderates against the verdict of the jury this court will grant a new trial. Limer v. Traders Co., 44 W. Va. 175. i. Irrelevant evidence. To authorize the reversal of a judgment, for the reason that irrelevant evidence has been admitted, the evidence must not only be irrelevant, but it must be of such a nature, that its admission may have prejudiced the ex- ceptor. State v. Kinney, 26 W. Va. 141. j. Conflicting evidence Weight of evidence. Though evidence is conflicting, the court may set aside the verdict if against the weight of the evidence ; but such power should be exercised cautiously. When the court does so, its action is regarded with peculiar respect in an appellate court and will not be reversed unless plainly wrong. Crogan v. Railroad Co., 39 W. Va. 415. SETTING ASIDE THE VERDICT. 75 k. Wholly insufficient evidence. Where the court which tries a case certifies all the evidence adduced on the trial, and from the evidence so certified it clearly appears that it was wholly insufficient to sustain the verdict, this court will set aside the verdict, and, in a proper case, award a new trial. State v. Zeigler, 40 W. Va. 594. 1. Illegal evidence Presumption as to. Where illegal evidence is admitted, against the objec- tion of a party, it will be presumed that it prejudiced such party, and if it may have prejudiced him, though it be doubtful whether it did or not, it, it will be cause for re- versal of the judgment; but if it clearly appear that it could not have changed the result, that if it had been ex- cluded, the same result would have followed, it will not be cause for reversing the judgment. Taylor v. Rail- road Co., 33 W. Va. 40. m. Newly discovered evidence Presumption as to. A new trial will not be granted on the ground of new- ly discovered evidence unless the case comes within the following rules : 1. The evidence must appear to have been discovered since the trial, and, from the affidavit of the new wit- ness, what such evidence will be, or its absence satis- factorily explained. 2. It must appear from facts stated in his affidavit that the party seeking a new trial was diligent in ascer- taining and securing his evidence, and that the new evi- dence is such that due diligence would not have secured it before verdict. 3. Such evidence must be new and material, and not 76 SETTING ASIDE THE VERDICT. merely cumulative ; and cumulative evidence is additional evidence of the same kind to the same point. 4. The evidence must be such as ought to produce an opposite result at a second trial on the merits. 5. -And the new trial will be generally refused when the sole object of new evidence is to discredit or im- peach a witness on the opposite side. Halstead v. Horton, 38 W. Va. 727. n. Harmless error. An error which does not prejudice a party cannot be made the cause of a reversal of a judgment. Long v. Ferine, 44 W. Va. 243. CHAPTERS AND SUBJECTS-PART II. CHAPTER 1. ACCORD AND SATISFACTION, 77. CHAPTER 2 ADVERSE POSSESSION, 80. 1. COLOR OB CLAIM OF TITLE SOUBCE OF TITLE BOUNDARY LINES, 80 2. ACTUAL POSSESSION WHAT REQUIRED TO SUPPORT CLAIM OF, 84. 3. QUANTITY OF LAND CONVEYED CONVEYANCES BY METES AND BOUNDS, 88. 4. HOSTILITY IN INCEPTION CONTINUED HOSTILITY, 88. 5. CONTINUITY OF POSSESSION, 92. 6. PAYMENT OF TAXES FORFEITUBE FOR NON-PAYMENT OF TAXES, 93. 7. STATUTE OF LIMITATIONS, 97. CHAPTER 3 AGENCY, 98. CHAPTER 4 ASSAULT AND BATTERY, 102, CHAPTER 5 ASSIGNMENT FOR BENEFIT OF CRED- ITORS, 104. CHAPTER 6 ATTACHMENTS, 106. CHAPTER 7 ATTEMPT, 107. CHAPTER 8 AWARDS, 107. CHAPTER 9 BETTING AND GAMING, 108. CHAPTER 10 BILLS OF LADING, 109. CHAPTER 11 BONDS, 112. CHAPTER 12 BOOMS AND DAMS, 113. CHAPTER 13 BURGLARY, 118. CHAPTER 14 CARRIERS, 122. A. CARRIERS OF FREIGHT, 122. B. CARRIERS OF LIVE STOCK, 125. C. CARRIERS OF PASSENGERS, 129. D. EQUIPMENTS, 139. E. CONTRIBUTORY NEGLIGENCE, 139. CARRIERS OF PASSENGERS. 1. DEGREE OF CARE AND LIABILITY OF CARRIERS IN GEN- ERAL. 129. 2. THE RELATION OF CARRIERS AND PASSENGERS, 132. 3. ARREST OF PASSENGERS, 133. 4. EJECTION OF PASSENGERS. 135. CHAPTER 15 CIVIL DAMAGE ACT, 144. CHAPTER 16 CONDEMNATION PROCEEDINGS, 146. 1. MAIN LINES OF RAILROADS, 146. 2. BRANCH OR LATERAL LINES OF RAILROADS, 149. 3. FOR PURPOSES OF RAILROAD BRIDGES. 151. li CHAPTERS PART II. CHAPTER 17 CONSPIRACY, 152. CHAPTER 18 CONTRACTS, 154. 1. WBITTEN CONTRACTS, 154. 2. MODIFICATION OF CONTRACTS, 167. 3. SEPARATE AND DISTINCT CONTRACTS, 169. CHAPTER 19 COUNTIES, 170. CHAPTER 20 COVENANTS, 171. CHAPTER 21 CRIMINAL LAW, 172. 1. PRESUMPTION OF INNOCENCE, 172. 2. REASONABLE DOUBT, 173. 3. CIRCUMSTANTIAL EVIDENCE, 177. 4. CHARACTER AND MOTIVE OF WITNESSES, 178. 5. CREDIBILITY OF WITNESS WEIGHT OF EVIDENCE, 180. 6. INSANITY AND INTOXICATION MENTAL CAPACITY, 182. 7. ALIBI, 185. 8. ADMISSION AND CONFESSIONS, 186. 9. DEGREES OF PUNISHMENT, 186. CHAPTER 22 DAMAGES, 187. I. GENERAL PRINCIPLES, 187. II. EXEMPLARY, PUNITIVE OR VINDICTIVE DAM- AGES, 195. IIL COMPENSATORY DAMAGES HOW ESTIMATED AND FIXED, 203. 1. AGAINST RAILROAD COMPANIES, 204. . 2. AGAINST' MUNICIPAL CORPORATIONS, 207. 3. AGAINST MASTER FOR INJURIES SUSTAINED BY SER- VANTS, 208. 4. AGAINST LANDLORDS, 209. 5. AGAINST STEAMBOAT COMPANIES. 210. 6. AGAINST PERSONS TAKING PROPERTY WITHOUT OWNERS CONSENT, 210. 7. AGAINST BRIDGE COMPANY, 210. 8. AGAINST BOOM COMPANIES, 212. 9. AGAINST PULP MILL OWNERS, 213. CHAPTER 23 DEEDS, 213. CHAPTER 24 DETINUE, 215. CHAPTER 25 DRUGS AND DRUGGISTS, 215. CHAPTER 26 DURESS, 217. CHAPTER 27 EJECTMENT, 219. CHAPTER 28 ELECTRICAL COMPANIES, 226. CHAPTER 29 EXEMPTIONS, 232. CHAPTER 30 EXPLOSFONS, 232. CHAPTER 31 EXPLOSIVES, 233. CHAPTER 32 FALSE ARREST AND IMPRISONMENT, 234. CHAPTER 33 FALSE REPRESENTATION, 236. CHAPTER 34 FERRIES, 237. CHAPTER 35 FLOATABLE STREAMS, 237. CHAPTERS PART II. ill CHAPTER 36 FORGED INSTRUMENTS FORGERY, 239. CHAPTER 37 GIFTS, 241. CHAPTER 38 HOMICIDE, 243. I. MURDER - - ITS ELEMENTS AND ITS INCI- DENTS, 243. II. MANSLAUGHTER VOLUNTARY AND INVOLUN- TARY, 249. III. EXCUSE AND JUSTIFICATION, 251. 1. EIGHT TO KILL IN DEFENSE OF PERSON, 251. 2. WHEN PLEA OF SELF DEFENSE NOT AVAILABLE, 255. 3. BIGHT TO KILL IN DEFENSE OF FAMILY OB HABITATION, 258. 4. BIGHT TO KILL IN DEFENSE OF ANOTHER, 259. 5. BIGHT TO KILL TO PBEVENT A FELONY, 260 6. INTOXICATION AND INSANITY, 260. 7. AGE FOB CAPACITY TO COMMIT CBIME, 263. IV. DEGREES OF OFFENSE - - PUNISHMENT IM- POSED, 262. CHAPTER 39 HOUSE OF ILL FAME, 263. CHAPTER 40 INSURANCE, 265. I. FIRE INSURANCE, 265. 1. THE POLICY OB CONTBACT, 265. 2. PBOOF OF LOSS, 278. 3. WAIVEB OF BIGHT TO AVOID PAYMENT OF LOSS, 280. II. LIFE INSURANCE, 283. III. ACCIDENT INSURANCE, 284. CHAPTER 41 INTOXICATING LIQUORS, 287. CHAPTER 42 LANDLORD AND TENANT, 288. CHAPTER 43 LARCENY, 289. CHAPTER 44 LIBEL AND SLANDER, 291. CHAPTER 45 LIMITATION OF ACTIONS, 292. CHAPTER 46 LOGS AND LOGGING, 293. CHAPTER 47 MALICIOUS PROSECUTIONS, 296. CHAPTER 48 MARRIED WOMEN, 302. CHAPTER 49 MASTER AND SERVANT, 304. 1. NATUBE AND EXTENT OF MASTER'S LIABILITY, 304. 2. MACHINERY, APPLIANCES, MATERIAL AND PLACE TO WOBK, 307. 3. BOAD BEDS AND TRACKS, 312. 4. WARNING, INSTBUCTIONS AND GIVING ORDERS TO SERVANTS, 315. 5. FELLOW SERVANTS, 317. 6. RISKS ASSUMED BY SERVANTS, 318. 7. CONTRIBUTORY NEGLIGENCE, 325. CHAPTER 50 MESNE PROFITS, 333. CHAPTER 51 MUNICIPAL CORPORATIONS, 334. 1. DEFECTIVE STREETS AND SIDEWALKS. 334. 2. CHANGING GRADE OF STREETS, 342. 3. SUBFACE WATERS DRAINS OR SEWERAGE, 346. CHAPTER 52 NATURAL GAS, 348. iv CHAPTERS PART II. CHAPTER 53 NEGOTIABLE INSTRUMENTS, 354. CHAPTER 54 NUISANCE, 356. CHAPTER 55 OIL AND GAS LEASES, 357. CHAPTER 56 OIL WELLS, 357. CHAPTER 57 PARENT AND CHILD, 359. 1. SALE OF IXTOXICATIXG LIQUORS TO MINORS, 359. 2. SEDUCTION OF MINOR, 361. CHAPTER 58 PHYSICIANS AND SURGEONS, 362. CHAPTER 59 RAILROADS AND RAILROAD COMPAN- IES, 363. I. INJURIES TO PERSONS ON OR NEAR TRACK, 363. II. EJECTMENT OF PERSONS FROM FREIGHT TRAINS, 370. HI. INJURIES TO ANIMALS, 371. IV. CAUSING LOSS OF PERSONAL PROPERTY, 373. V. INJURY TO REAL ESTATE, 374. VI. INJURY TO WATERMILLS, 375. VII. CONSTRUCTION OF CROSSINGS AND CATTLE GUARDS, 376. CHAPTER 60 REAL ESTATE, 377. CHAPTER 61 SABBATH BREAKING, 378. CHAPTER 62 SALES, 379. 1. CONTRACT OF SALE, 379. 2. DELIVERY AND ACCEPTANCE, 380. 3. SHIPMENT OF GOODS TO WRONG PARTY, 381. 4. NON-ACCEPTANCE. 381. 5. TURNING GOODS OVER TO THIRD PARTY, 383. 6. SHIPMENT OF GOODS IN EXCESS OF PURCHASE, 384. 7. FAILURE OF CARRIER TO DELIVER GOODS, 385. 8. FALSE REPRESENTATIONS BY SELLER, 386. CHAPTER 63 SEDUCTION, 387. CHAPTER 64 STREET RAILWAYS, 388. CHAPTER 65 SURETYSHIP, 391. CHAPTER 66 SURFACE WATER, 392. CHAPTER 67 TELEGRAPH AND TELEPHONE COMPANIES, 393. I. TELEGRAPH COMPANIES, 393. II. TELEPHONE COMPANIES, 395. CHAPTER 68 TRESPASS, 397. CHAPTER 69 TROVER AND CONVERSION, 397. CHAPTER 70 TURNPIKE COMPANIES, 398. CHAPTER 71 UNLAWFUL ENTRY AND DETAINER, 399. CHAPTER 72 WATER AND WATER COURSES, 404. CHAPTER 73 WILLS, 406. CHAPTER 74 WITNESSES, 420. PART II. FORMS OF INSTRUCTIONS. CHAPTER 1. ACCORD AND SATISFACTION. a. What may be pleaded. b. When acceptance by creditor of order operates as full satisfaction of debt. c. When creditor liable to debtor for negligence in collecting collateral accepted in discharge of debt. d. How plea established. e. When receipt given by plaintiff does not bar right of recovery. a. What may be pleaded. The court instructs the jury that anything of legal value, whether those in possession or in action, that is, any legal interest or right which the creditor had before agreed to receive and actually received in full satisfac- tion of the debt, is a good satisfaction, without regard to the comparative magnitude of the satisfaction with the original debt, and may be pleaded as accord and satis- faction. Bank v. Kimb&rlands, 16 W. Va. 569. 78 ACCORD AND SATISFACTION. b. When acceptance by creditor of order operates as full satisfaction of debt. The court instructs the jury that if they believe from the evidence that the order for f - given in evidence in this case was drawn by the defendant, - , in favor of the plaintiff upon a fund in the hands of the - company, belonging to or payable to the said defendant, and that the said order for f - was delivered by the said defendant or some one in his behalf and by his authority, to the plaintiff in discharge and satisfaction of the notes here sued upon, and was received by the plaintiff in discharge and satisfaction of said notes, that such delivery by the said defendant and receipt by the plaintiff would operate in law as a full discharge and satisfaction of said notes. Bank v. Kiniberlands, 16 W. Va. 569. c. When creditor liable to debtor for negligence in col- lecting collateral accepted in discharge of debt. The court instructs the jury that if they believe from the evidence that the order for f - given in evidence in this cause was drawn by the defendant in favor of the plaintiff upon a fund in the hands of - , belonging or payable to the said defendant and sufficient to leave a surplus after paying the orders in favor of - , - and - , mentioned in said order for f , and that said order for f - was delivered by said defendant, or some one on his behalf and by his authority, to the plain- tiff as collateral security for the payment of the notes here sued upon, then it would be the duty of the plain- tiff to use reasonable care and diligence to make the said security available for the purpose for which it had so been delivered and received, and if the plaintiff, by negligence or any wrongful act or omission on his part, thereafter rendered the said security, in whole ACCORD AND SATISFACTION. 79 or in part, unavailable for the purpose for which it had been so delivered and received, the loss, if any, thus caused should be borne by the plaintiff, and the defendants would be discharged to the extent of the injury they sustained from such negligence or misconduct of the plaintiff. Bank v. Kimberlands, 16 W. Va 570. d. How plea established. The court instructs the jury that to establish the plea of accord and satisfaction, the defendants must show that the subject matter of this action (that is the arrest and imprisonment of the plaintiff) was accorded between the plaintiff and , and that the plaintiff agreed to and did accept the - dollars mentioned in the said receipt, in full satisfaction of the cause of action in the declaration mentioned. Bloss v. Plymale, 3 W. Va. 399. e. When receipt given by plaintiff does not bar right of recovery. The court instructs the jury unless they believe from the evidence that , was a co-tres- passer with the present defendants in this ac- tion, in the arrest and imprisonment of the plaintiff in the declaration mentioned, then the receipt read in evidence in this cause, given by - , (the plaintiff) to , does not operate to bar plaintiff's right of re- covery herein. Bloss v. Playmate, 3 W. Va. 400. 80 ADVERSE POSSESSION. / CHAPTER 2. ADVERSE POSSESSION. 1. COLOR OR CLAIM OF TITLE SOURCE OF TITLE BOUNDARY LINES. 2. ACTUAL POSSESSION WHAT REQUIRED TO SUPPORT CLAIM OF. 3. QUANTITY OF LAND CONVEYED CONVEYANCES BY METES AND BOUNDS. 4. HOSTILITY IN INCEPTION CONTINUED HOSTILITY. 5. CONTINUITY OF POSSESSION. 6. PAYMENT OF TAXES FORFEITURE FOR NON-PAYMENT OF TAXES. 7. STATUTE OF LIMITATIONS. 1. COLOR OR CLAIM OF TITLE SOURCE OF TITLE BOUN- DARY LINES. a. What party relying on under color or claim of title must show. b. Same Not necessary that evidence of title be in writing Specified boundaries. c. Color of title Character of deed which gives color of title. d. Distinction between claim of title and color of title Claim of title Limitation of adverse hold- ings under Color of title Limitation of ad- verse holdings under. e. Deed conveying title Effect of delivery of. f. Same When statute of limitations begins to run. g. Source of title Conflicting title arising from same source, h. Boundary lines. ADVERSE POSSESSION. 81 a. What party relying on under color or claim of title must show. The court instructs the jury that the party who relies on adverse possession of land, under color or claim of title, to defeat the legal owner of the land must show: 1. His color or claim of title and that it covers the land, or a part of the land, in controversy. 2. That he entered under said claim or color of title upon said land in controversy, or some part thereof. 3. That his entry was hostile and adverse to the party having the legal title and was actual, visible and exclusive. 4. Must have so continued hostile, actual, visible, and exclusive, unbroken, under said color or claim of title for ten years before the commencement of the action to dispossess him. Maxwell v. Cunningham, 50 W. Va. 302. b. Same Not necessary that evidence of title be in writ- ing Specified boundaries. The court instructs the jury that color or claim of title which may be sufficient to establish title to land by adverse possession, may be under a good or bad, legal or equitable title; that it is not indispensable that the claim of title should be in the form of a deed or other writing ; that the claim, from its nature or character, may be wholly independent of any written evidence; and that if a party have a deed or other writing with a specified boundary, the possession which he may take and hold is not necessarily restricted or confined to what shall prove to be within the precise boundary of such deed or writing; he may take and hold actual possession of land outside of his true boundary. Congrove v. Burdett, 28 W. A'a. 223. c. Color of title Character of deed which gives color of title. The court instructs the jury that a deed in writing 82 ADVERSE POSSESSION. which purports to convey lands by metes and bounds and pass a title thereto, is color of title, no matter in what its invalidity may consist. Robinson v. Loice, 50 W. Va. 82. d. Distinction between claim of title and color of title Claim of title Limitation of adverse holdings under Color of title Limitations or adverse holdings under. The court instructs the jury that if the adverse pos- session should be held for ten years before the commence- ment of the action under claim of title, the person claim- ing adversely will be limited in his adverse holdings to his actual enclosures, if under color of title then the adverse holding will extend to the boundaries contained in the deed or writing that constitutes his color of title. Mii.ncell v. Cunningham, 50 W. Va. 301. e. Deed conveying title Effect of delivery of Adverse possession What necessary to establish. The court instructs the jury that if they believe from the evidence that the land in controversy is embraced in and conveyed by the deed from - - to - , and they by said - - to the plaintiff, then they must find for the plaintiff, unless they further believe from the evidence that the defendant had been in exclusive, ac- tual, continual, visible, hostile and notorious possession of the land for more than ten years prior to the commence- ment of this action, claiming the same under claim or color of title, adversely to the plaintiff, and those under whom his title is derived; and the jury is also instructed that the claim of the defendant, derived from - - and his vendor, could not be adverse to the plaintiff, or those under whom he claims, until the deed of - was delivered to said defendant, and from that time it was adverse. Low v. Settle. 32 W. Va. 803. ADVERSE POSSESSION. 83 f. Same When statute of limitations begins to run. The court instructs the jury that if they believe from the evidence that the land in controversy is embraced in and conveyed by the deeds from - to , trus- tee, and from - (another trustee) to the plaintiff, then they must find for the plaintiff, unless they further believe from the evidence that the defendant and those under whom he claims, have been in the exclusive, actual, continued, visible, hostile and notorious possession of the land for more than ten years prior to the commencement of this action claiming the same under claim or color of title adversely to the title of the plaintiff and those under whom his title is derived ; and they are also instructed that the title of the defendants derived from - was not adverse to that of the plaintiff until the deed from - to - , offered in evidence, was delivered by - to , and from that time it was adverse. Core v. Fan- pel, 24 W. Va. 249. g. Source of title Conflicting titles arising from same source Priority of recordation of deeds. The court instructs the jury that if they believe from the evidence that the deed from A. to B., under which the defendant claims, covers the land in controversy, and if they further believe from the evidence that the deed from A. to C., under which the plaintiff claims, also covers the land in controversy, and if they further believe from the evidence that the deed to C. was first admitted to rec- ord in the proper office for recording said deeds, then the said deed from A. to C. vested in said C. a valid title to said land in controversy unless the jury believe from the evidence that the said C. had notice that the said deed to B., which is older in date than the deed to C., covered the land in controversy and that B. claimed title thereto. Congrove v. Burdett, 28 W. Va 222. M ADVERSE POSSESSION. h. Boundary lines. The court instructs the jury that in ascertaining the boundaries of a tract of land described in a grant or deed, natural boundaries or lines of marked trees will be established in preference to mere course and distance; and where there are no natural boundaries and lines of marked trees to be relied on to establish such boundaries, the courses and distances called for in such deed or grant will control. Congrove v. Burdett, 28 W. Va. 222. 2. ACTUAL POSSESSION WHAT NECESSARY TO SUPPORT CLAIM OF. a Enclosures What intruder not limited to Posses- sion of part of the land Interlocks. b. Same Superiority of title. c. Same. d. Same Adverse possession at time of and since entry. e. Same Adverse possession in third party. f. Same Breach of covenant Statute of limitations. g. Improvements made upon the property. a. Enclosures What intruder not limited to Possession of part of the land Interlocks. The court instructs the jury that if they believe from the evidence that the land embraced in the deed from A. to B. for - - acres includes the land in controversy, and that the land conveyed by C. to D. in 18 was sur- veyed for said D. by said C., and includes in its boundaries the land in controversy, then the land in controversy is the lap, interlock or interference ; and if the jury be- lieve from the evidence that said D., and those who claim under him, including the defendant, entered upon and ADVERSE POSSESSION. 85 took possession of any part of the land in controversy and actually improved any part of the same by enclosure and exercised other open, visible, notorious and habitual acts of ownership over the land in controversy; and if the jury further believe from the evidence that the said B. and those who claim under her, never in fact took actual possession of any part of the land lying within the dis- puted boundaries, the lines shaded green on the plat in this cause, but did enter and take possession of some part of the land embraced in her deed for acres outside of the land in controversy, then such possesion by said B., and those who claim under her, of any part of the said - acres outside of the lap or interlock, shaded in green, does not give to the plaintiffs, or those under whom they claim, possession, actual or constructive, or any part of the land in controversy, and does not limit the defendant to the actual enclosure, even if the jury should believe the title of B. to the acres to have been the better title. Congrove v. Burdett, 28 W. Va. 223. b. Same Possession of any part of the land Superiority of title. The court instructs the jury that if they believe from the evidence that the defendant, and those under whom he claims, entered upon and took possession of any part of the land in controversy, claiming it under color or claim of title by deed or other writing, then the defendant, and those under whom he claims, thereby acquired adversary- possession of such land to the extent of the boundaries embraced by such deed or other writing, unless the jury believe from the evidence that the plaintiff, or those under whom he claims, had the better title and had ac- tual adverse possession of the part of the land embraced by the deed or other writing under which the defendant, or those under whom he claims, entered and took pos- 86 ADVERSE POSSESSION. session of said land in controversy. Congrove v. Burdett, 28 W. Va. 223. c. Same. The court instructs the jury that if the defendant, or those under whom he claims, under a deed or other writ- ing, entered and took possession of any part of the land in controversy under such deed or other writing, and held such adversary possession of said land under such deed or other writing, then such adversary possession of any part of said land is to be taken and held to ex- tend to the boundaries embraced and included by such deed or other writing, notwithstanding some other person may have the better title to such land, and the jury must find for the defendant unless the person having the better title shall have actual adverse possession of some part of the land embraced by such deed or other writing under which the defendant, and those under whom he claims, entered upon and took possession of the land in controversy. Congrove v. Burdett, 28 W. Va. 223. d. Adverse possession at time of and since entry. The court instructs the jury that if they believe from the evidence that the person under whom the - hold were at any time ten years prior to the institution of this suit, and still are the actual owners by a para- mount title of the - surveys described in the title papers and evidence in this case; that said - - sur- veys are contiguous; and that the said - or those under whom he holds, at any time ten years prior to the institution of this suit entered upon and took possession of any part of either of the said surveys, claiming under said title; and that there was not at the date of such entry, and has not been since, any actual, visible adverse possession of the land embraced in the interlock herein ADVERSE POSSESSION. 87 then the verdict should be for the defendant. Ilsley \. Wilson, 42 W. Va. 764. e. Same Adverse possession in third party. The court instructs the jury that if they believe from the evidence that - , the holder of the alleged paramount title and those under whom he claims, owns under said alleged paramount title, several contiguous and coterminous tracts, pieces or parcels of land, em- bracing the land in controversy shown on the map made and filed in this case as the lap or interlock, and at any time prior to the conveyance by - - to the plaintiff, dated the - - day of - , 18 , and shown in evi- dence, had taken and held actual possession of any part or parcel of any of the said coterminous tracts not in the actual adverse possession of some third person, and including, as well, the wild and uninclosed land as the im- proved land ; such possession is held to include the alleged interlock, however far it may be removed from the actual inclosure, provided the said interlock was not then in the actual adverse possession of some person claiming under the - - title. Ilsley v. Wilson, 42 W. Va. 763. f. Breach of covenant Statute of limitations. The court instructs the jury that if they believe from the evidence that at the time of conveyance from the defendant to - , shown in evidence, and bearing date day of - , 18 , that the part of the land thereby attempted to be conveyed, embraced by the al- leged interlock or lap with the - survey of acres, now claimed by the , was in the actual pos- session of those under whom said claims by a title paramount to the title conveyed by said to , then there was a breach of said covenant in said conveyance eo Instanti, and if more than ten years elapsed from that time before the bringing of this suit, the action 88 ADVERSE POSSESSION. is barred, and the jury should find for the defendant. Ilslcy v. Wilson, 42 W. Ya. 763. g. Improvements made upon the property. The court instructs the jury that the making of im- provements by the defendant upon the property in con- troversy will not prevent the plaintiff from recovering the possession thereof in this action. McDougal v. Musgrave, 46 W. Va. 514. 3. QUANTITY OF LAND CONVEYED. a. Conveyance by metes and bounds. The court instructs the jury that the fact that the deed from - - to - - conveys by metes and bounds to .said - - more than - - acres should not be taken into consideration by you in determining the matters in controversy in this action. Roltlnson \. Lowe, 50 W. Va. S3. 4. HOSTILITY IN INCEPTION CONTINUED HOSTILITY. a. Entry under title of legal owner How contro- verted. b. Holding by vendee as against vendor Executory contracts. c. Holding by tenant as adverse to landlord. d. Holding by co-tenant as adverse to co-tenant. e. Same Notice of change of relationship Necessity for. f. Life-estate of landlord Nature of title of both landlord and tenant. g. Same Expiration of landlord's life estate. a. Entry under title of legal owner How controverted. The court instructs the jury that the defendant to make ADVERSE POSSESSION. 89 out a title by adverse possession, must show that such possession was adverse in its inception, and where the entry is under the title of the legal owner, the holder can- not controvert that title without an express disclaimer or its equivalent, and the assertion of an adverse title with notice to the owner. Maxwell v. Cunningham, 50 W. Va. 30A b. Holding by vendee as against vendor Executory contracts Future conveyances. The court instructs the jury that if they believe from the evidence that the defendant entered into possession of the land in controversy under an executory contract which left the legal title in his vendor, and contemplated a further conveyance of the complete title, his entry was in subordination to the legal title, and in that event a privity existed which precluded the idea of a hostile or tortious possession that could silently ripen into an ad- verse possession under the statute of limitations. Low v. Settle, 32 W. Va. 603. c. Holding by tenant as adverse to landlord Relation of landlord and tenant Life-estate of landlord. The court instructs the jury that a tenant can not deny the title of the landlord and to the extent that the re- lation of landlord and tenant existed between the plain- tiff and defendant, the defendant is precluded from deny- ing the title of the plaintiff to the life estate claimed by her in the premises in controversy, and is precluded from taking any advantage of his position and possession as such tenant to do anything to defeat the right of the plain- tiff without showing that he first brought home notice to her that he was holding the said premises adversely to her life estate therein. McDougal v. Ifusgrave. 46 W. Va. 513. 90 ADVERSE POSSESSION. d. Holding by co-tenant as adverse to co-tenant Waiver of rights. The court instructs the jury that if they believe from the evidence that A., (father of the defendant B.,) and C. executed an agreement in writing bearing date the - day of , and that the paper purporting to be a copy thereof introduced in evidence is a copy of said agreement, then from the time of the execution of said contract the said C. was th6 owner of all the land in the declaration described except as to one undivided sixth of that portion of the land described in said agreement by metes and bounds until the time of his death; and that at his death the plaintiff became the owner thereof; and if they further believe from the evidence that D., son of said A., claiming to have acquired the interest formerly held by his father in said land (except the share of his brother B.) executed the deed to the defendant B., bear- ing date the - - day of - , a copy of which was introduced in evidence, and if they further believe from the evidence that the defendant, E., went into possession of part of the land in controversy in 18 , after the exe- cution of said deed to the defendant B., under the verbal agreement with his father, and had remained in posses- sion ever since, such possession under the evidence and circumstances in this case was not adverse to said C. or the plaintiff before the recordation of said deed on the - - day of , unless it is shown by the evi- dence that before the recordation of the said deed and ten years before the institution of this suit notice was brought home to the plaintiff, or to her father, C., that the defendants were holding adversely and claiming all the land in controversy, and the plaintiff is entitled to recover from the defendants the land in controversy except the one undivided sixth interest in that portion of the - - acres, described in the paper offered in evi- ADVERSE POSSESSION. 91 dence as a copy of an agreement between C. and A., as to which undivided sixth the plaintiff has waived her right to recover. Parr v. Currence, 53 W. Va. 529. e. Same Notice of change of relationship Necessity for. The court instructs the jury that if they believe from the evidence that the defendant entered into the posses- sion of the premises in controversy under an agreement and understanding with the plaintiff by which he was to occupy said premises with the plaintiff, the plaintiff not paying the defendant board and the defendant on the other hand not paying the plaintiff rent then the possession of the defendant would not under such cir- cumstances be hostile, adverse or exclusive as to the plain- tiff and would not become hostile, adverse or exclusive as to the plaintiff until the defendant brought home notice to the plaintiff of a change in such arrangement and that he claimed the premises adversely to her life es- tate and until the defendant brought home to her notice of such change and claim to hold adversely such posses- sion by the defendant would not be adverse, and would not be the basis of any adverse claim by the defendant. McDougal v. Musgrave, 46 W. Va. 514. f. Life estate of landlord Nature of title of both land- lord and tenant. The court instructs the jury that if they believe from the evidence that the plaintiff and defendant claim title under the deed of - , 18 , from plaintiff to - and of , 18 , from - - to the de- fendant, then by the provisions of said deed the plaintiff is entitled to the possession of the premises in contro- versy for and during her natural life, and if the plaintiff permitted the defendant to come upon the premises with his family and occupy the premises with her the said 92 ADVERSE POSSESSION. plaintiff, then the said defendant became and was during the period of such occupancy the tenant of the plaintiff of such premises, and if such permissive occupation was without any term of holding being fixed and without the payment of rent, then such occupancy was at will, and the plaintiff is entitled to have possession of said premi- ses upon demand. McDougal v. Husgrave, 46 W. Va. 513. g. Same Expiration of landlord's life estate Tenant's remainder in fee dependent upon. The court instructs the jury that if they believe from the evidence that the plaintiff and defendant claim title under the deed of - , 18 , from the plaintiff to - - and the deed of - , 18 , from said - to the defendant offered in evidence in this case and that by reason of said deeds the plaintiff has an es- tate for and during her natural life in the property in the declaration mentioned and the defendant a remainder in fee in said premises dependent upon the expiration of said life estate, unless the defendant shows that the plaintiff has in some way lost said life estate she is en- titled to recover in said action. McDougal v. Musgrave, 46 W. Va. 514. 5. CONTINUITY OF POSSESSION. a. Tacking on different adverse possessions. b. Necessity for connecting title Lengthening pos- session. c. Possession limited to color of title Actual en- closures. a. Tacking on different adverse possessions. The court instructs the jury that if they believe from the evidence that A. went into possession of the ADVERSE POSSESSION. 93 acres of land in controversy under one B., and that the defendant afterwards took possession under claim or color of title derived from C., and that there was no privity of estate between B. and C., then the possession of said A. of said - acres under B. can avail the defendant nothing in his defense of adversary possession under claim or color of title under C.; that these two posses- sions cannot be tacked onto each other so as to make a continuity of possession, unless there is a privity of es- tate, or the two titles are connected. Jarrett v. Stevens, ?6 W. Va. 440. b. Necessity for connecting title Lengthening posses- sion. The court instructs the jury that any possession by any party, of the land in controversy, other than the defend- ant, cannot inure to the benefit of the defendant, so as to lengthen and strengthen his possession, unless he con- nect the title by which he claimed under the title of such other person. Jarrett v. Stevens, 36 W. Va 450. c. Possession limited to color of title Actual enclosures. The court instructs the jury that the defendant can only show adversary possession of land to which he has shown color of title, or which he has had under fence, and if he claims by fence, he can only claim to the ex- tent of actual enclosure. Jarrett v. Stevens, 36 W. Va. 451. 6. PAYMENT OF TAXES FORFEITURE FOR NON-PAYMENT OF TAXES. a. Payment of taxes by one holding title under void judicial sale. b. Same Privity of estate between purchaser and legal owner. 94 ADVERSE POSSESSION. c. Title acquired by purchaser at tax sale. d. How contiguous tracts owned by same person may be assessed. e. Assessment and payment of taxes on life-estate Payment of taxes by tenant holding fee simple in lands. f. Same. a. Payment of taxes by one holding title under a void judicial sale. The court instructs the jury that if they believe from the evidence that the defendant claimed to hold posses- sion of the land in controversy, by virtue of the deed made to him in the proceedings in the chancery suit of - vs. plaintiff, (said deed having been declared void by the supreme court), that the failure of the plaintiff to cause the land to be entered on the assessor's books of - county, for the year 18 to the year - , inclusive, nine years), does not work a forfeiture of his title, so as to defeat his right to recover the land in controversy in this suit, because the land was assessed on the asses- sor's books of the county of - , in the name of the defendant and taxes paid thereon by him for the said years 18 to 18 , inclusive, under his said claim of title derived from the deed made to him by virtue of said chancery suit, (said deed having subsequently been de- clared invalid by the supreme court). Hall v. Hall, 27 W. Ya. 472. b. Same Privity of estate between purchaser and legal owner. The court instructs the jury that if they believe from the evidence that the defendant purchased the property in question and entered into possession thereof, under and by virtue of a deed made on the day of - , 18 ,by , special commissioner in the chancery cause of - vs, ADVERSE POSSESSION. 95 the plaintiff, (which deed was subsequently declared void by the supreme court of appeals), and that the property conveyed by said deed was the property which had been claimed, owned and occupied by plaintiff by virtue of a purchase made by him in 18 , that the then said com- missioner, acting under and by virtue of said decree, was the agent of the plaintiff and the defendant, and that the relationship of vendor and vendee subsisted between them, and although the said deed made by said commis- sioner was, by a subsequent decision of the supreme court of appeals of West Virginia, declared to be invalid and set aside; that the fact that {fie defendant entered into possession of the property under and by virtue of the deed made by a court of competent jurisdiction, estab- lishes such a privity of estate in respect to the rights of the parties plaintiff and defendant in this suit, so that the assessment on the assessor's books to and payment of taxes on said property by the defendant inures to the benefit of the plaintiff, and will not work a forfeiture of the land in controversy. Hall v. Hall, 27 W. Va. 476. c. Title acquired by purchaser at tax sale How title de- feated. The court instructs the jury that if they believe from the evidence that - - was a creditor of - , and as such, paid the taxes on the land in controversy for the years for which it was returned delinquent, then the same was improperly returned delinquent, and the tax deed conferred no title on the purchaser at the tax sale. Car- rell v. Mitchell, 37 W. Va. 140. d. How contiguous tracts owned by same person may be assessed. The court instructs the jury that if a person has his land charged upon the land books in a large tract that covers all his smaller tracts or any of his smaller tracts, 96 ADVERSE POSSESSION. it is not necessary for him to have it charged to him in the small tracts, and no forfeiture can accrue to those small tracts by reason of their not being so charged as small tracts, if they are included in the large tracts. In other words, coterminous tracts of land belonging to the same person for the assessment and payment of taxes are the same as one tract. Maxwell v. Cunningham, 50 W. Va. 301. e. Assessement and payment of taxes on life estate Payment of taxes by tenant holding fee simple in land. The court instructs the jury that if they believe from the evidence that the plaintiff and defendant claim title to the premises in controversy under the deed of - , 18 , from the plaintiff to - - and of - , 18 , from said - - to the defendant and under the provisions of said deeds the plaintiff has an estate for and during her natural life in said premises and the de- fendant a remainder in fee therein dependent upon the expiration of said life estate, and the assessment of said life estate and remainder in fee in the form of the fee to the said defendant, would enure to the benefit of the said plaintiff, and a forfeiture of her life estate would not be caused by a failure under such circumstances to have such life estate assessed separately in her name, unless before such failure to have the same assessed to her separately the plaintiff had notice that the defendant was holding and claiming the entire property adversely to her. Mc- Dougal v. Musgrave, 46 W. Va. 514. f. Same. The court instructs the jury that if they believe from the evidence that prior to and at the time of the institu- tion of this action the plaintiff had a life estate in the ADVERSE POSSESSION. 97 premises in controversy and that during the time she so had such life estate she permitted the defendant to enter up- said premises and become her tenant therein, then the jury are instructed that an assessment of said property in the name of the defendant, the tenant as aforesaid, and the payment of the taxes upon the property by such defendant while such tenancy continued, and before the plaintiff had any notice of a hostile holding of the premi- ses by the defendant, would be a payment of the taxes for the plaintiff and would enure to her benefit and pre- vent a forfeiture of said land for failure to assess in her name. McDougal v. Musgrave, 46 W. Va. 513. 7. STATUTE OF LIMITATIONS. a. Against both possession and title. b. Same Superiority of title. a. Against both possession and title. The court instructs the jury that the effect of the statute of limitations in this action is to render a con- tinued adversary possession for ten years prior to the commencement of this action conclusive not only against the possession but also against the title of the true owner whoever he may be. Congrove v. Burdett, 28 W. Va. 223. b. Same Superiority of title. The court instructs the jury that if they believe from the evidence that the defendant, and those under whom he claims, have been in the exclusive, hostile, actual, continued, visible and notorious possession of the land in dispute for more than ten years prior to the commencement of this action, claiming the same under claim or color of title adversely to the title of the plaintiffs, and those under whom their title is derived, then they must find for the 98 AGENCY. defendant, notwithstanding the jury may believe from the evidence that the plaintiff's title, but for such ad- verse possession, is the better one. Congrove v. Burdett, 28 W. Va. 223. CHAPTER 3. AGENCY. a. The relation between principal and agent. b. Scope of authority of agents. c. Same. d. Same Agents want of authority. e. Same. f. Employment of third party by agent. g. False representations by agents Concealment of facts by agent, h. Same. a. Relation between principal and agent Limit of Au- thority of agent to buy on credit. The court instructs the jury that if they believe from the evidence that the relation between defendants and - was such that defendants furnished - - with a sum or sums of money, and sent him into market simply to invest such moneys in wheat for them, then - - had no authority to buy wheat for defendants on credit. But if the jury believe from the evidence that - - was au- thorized to go into the market and buy wheat generally, for defendants, or if - - was authorized to make con- tracts for wheat and repay himself by drafts on defend- ants, or if from the course of dealing the jury are satis- fied that - - was in the habit of buying wheat and forwarding it to defendants, and defendants knowingly AGENCY. 99 received it as being in greater amount than their advances in cash, that then defendants would be liable unless they had in the due course of the business of said defendants and - , touching the premises, made advances to said - sufficient to pay for the wheat so received, or he will be liable for so much as may be covered by these ad- vances. Or if the jury shall find that defendants have re- ceived wheat beyond the amount of the advances, and which was sold to - , and by him purchased as the private agent of the defendants, the plaintiff would be entitled to recover to the amount of such wheat in excess over the advances to the amount of his proof. Detwiler v. Greene, 1 W. Va. 113. b. Scope of authority of agent Ratification of acts of agent Benefits received and accepted by principal. The court instructs the jury that if they believe from the evidence that - - was the agent of the defendant in the purchase of the claim of the plaintiff, without he made positive false representations of material facts or concealed facts which it was his duty to communicate to the plaintiff, and that such representations or con- cealments of such facts were made or withheld by the agent at the time of the purchase of said claim, or if they believe from the evidence, that the agent in making such representations or concealments acted beyond the scope of his authority, yet if they further believe from the evi- dence that the defendant ratified the purchase of the plain- tiff's claim made by the said agent by accepting and re- ceiving the benefit of such purchase, then in either case all representations and acts of the said agent occurring at the time of the purchase and with reference thereto are binding on the principal. Lane v. Black, 21 W. Va. 625. c. Same. The court instructs the jury that if they believe from 1()0 AGENCY. the evidence that A. was authorized to perform other duties for said B. and C., yet before the defendant can de- feat the plaintiff's action they must show that A had au- thority to sell this particular - - at the time they claim he did so, and if they fail to show that A. had such authority the jury must find for the plaintiff. Rosendorff v. Poling, 48 W. Ya. 624. d. Same Agent's want of authority. The court instructs the jury that if they believe from the evidence that A. had no authority to sell this particu- lar - - in question to D. from C., then they must find for the plaintiff. Rosendorff v. Poling, 48 W. Va. 624. e. Same. The court instructs the jury that if they do believe from the evidence that A. was authorized to perform other duties for B. and C. yet before the defendants can defeat the plaintiff's action, they must show that A. was in the employ of C. clothed with general authority to transact business for said C., including that of selling the - at the time D. claims to have purchased the - in con- troversy, and if defendants fail therein, then the jury must find for the plaintiffs. Rosendorff v. Poling, 48 W. Va. 624. f . Employment of third party by agent Ratification of acts of agent by principal. The court instructs the jury that if they believe from the evidence that - - was the agent of the defendant in charge at the well in controversy, and that said agent had placed - - in charge of said well in his absence, and never returned to assume the management of said well, and never discharged - from the managing and looking after said well, and that said - - was never discharged by the defendant from said management, and AGENCY. 101 that the defendant ratified the act of said agent, then, in that event, the acts, declarations and conduct of said - in managing and controlling said well would bind the defendant, and the jury should find for the plaintiff. Coulter v. Blatchley, 51 W. Va. 166. g. False representations by agent Concealment of facts by agent. The court instructs the jury that if they believe from the evidence that the plaintiff was induced to sell his claim to the defendant by positive false representations of a material fact or facts, by the defendant or his agent, or the concealment of facts, which it was the duty of the defendant or his agent to communicate to him, then the question of plaintiff's ownership of the cattle for which the receipt or voucher was given can be considered by the jury in determining the issue in this case. Lane v. Black, 21 W. Va. 621. h. Same. The court instructs the jury that if they believe from the evidence that if the defendant, in treating for the pur- chase of the claim, or his agent at the time of the pur- chase thereof, made a positive false representation as to any material part constituting an inducement to the sale, or by the concealment of any such fact, in which plain- tiff was misled and suffered damage, and in which plaintiff is presumed to have trusted to them or to either of them, and not to have relied on his own judgment, then the pur- chase of said claim was fraudulently obtained, and the jury must find for the plaintiff. Lane v. Black, 21 W. Va. 624. 102 ASSAULT AND BATTERY. CHAPTER 4. ASSAULT AND BATTERY. a. Regaining possession of property Use of necessary force for. b. Same Even though suffering or injury result from. c. Same Unnecessary force. d. Same Damages resulting from How determined Punitive damages. e. Persons charged with conspiracy may be convicted of assault and battery. a. Regaining possession of property Use of necessary force for. The court instructs the jury that if they believe from the evidence that the defendant was a merchant and le- gally had in his possession in his store the hat in ques- tion, and that the plaintiff came into said store and by in- ducing the defendant to believe that she, the plaintiff, would pay for said hat, obtained from the defendant the possession thereof, and that after obtaining possession of said hat, the plaintiff undertook to take the same out of said store without paying therefor, then the defendant had the legal right to pursue the plaintiff and retake the said hat, and that in so doing lie had the right to use such force as was necessary for the purpose. Stevens v. Friedman, 58 W. Va. . b. Same Even though suffering or injury result from. The Court instructs the jury that if they believe from the evidence that the plaintiff attempted to illegally take the hat in question from the possession of the defendant, or that she intentionally caused him to believe that she was in the act of so doing, and that acting under such belief ASSAULT AND BATTERY. 103 the said defendant pursued the plaintiff and recovered said hat from her by the use of so much force only as was necessary for the purpose, then they should find for the defendant, even though they may believe that the plaintiff was caused suffering or injury as the result of the use of such force. Stevens v. Friedman, 58 W. Va. . c. Same Unnecessary force not to be used. The Court instructs the jury that if they should believe from the evidence that defendant had the right to take the said hat from the possession of plaintiff, yet if they further believe that he used violence more than was neces- sary to be used in order to take possession of said hat from plaintiff, and that she was injured physically thereby and was caused to suffer physical pain thereby, then plaintiff is entitled to recover. Stevens v. Friedman, 58 W. Va. . d. Damages resulting from How determined Punitive damages. The Court instructs the jury that if they believe from the evidence that the defendant committed an assault and battery upon the plaintiff, as alleged in the declaration, and that she is entitled to recover, then in determining the amount of damages, they are authorized to take into con- sideration any physical injury, if any, caused thereby, as well as any physical suffering, if any, caused thereby, and also such punitive or exemplary damages as they may judge proper and just in the premises, if they find from the evidence that said assault and battery was wanton or wilful. Stevens v. Friedman, 58 W. Va. . e. Person charged with conspiracy may be convicted of assault and battery. The court instructs the jury that although they may find the prisoners not guilty of the offense charged in 104 ASSIGNMENT FOR BENEFIT OF CREDITORS. the indictment, if they shall not be satisfied or have a reasonable doubt as to the existence of a conspiracy and combination to do the acts charged therein, yet you may find them guilty of assault and battery if you think that the evidence in this case shall warrant such verdict. State v. Bingham, 42 W. Va. 234. CHAPTER 5. ASSIGNMENT FOR BENEFIT OF CREDITORS. a. Validity of assignment Fraud in assignment. b. Same. c. Same Recordation of deed of assignment. d. Sale of goods assigned for valuable consideration. e. Actual possession by purchaser, of goods assigned Statute of limitations. a. Validity of assignment Fraud in assignment Knowledge of assignee of fraudulent intent of as- signor. The court instructs the jury that the assignment of - to , (assignee), dated , 18 , is not fraudulent on its face, and unless the jury believe from the evidence that , when he executed this assignment, did so with in- tent to delay, hinder or defraud his creditors, and that this intent on his part was known to - , (assignee), when he, (the assignee), took possession of these goods, wares and merchandise, then the assignment is not fraud- ulent in fact so as to entitle the defendant, by reason thereof, to a verdict. Kyle v. Harvey, 25 W. Va, 732. b. Same. The court instructs the jury that if they believe from ASSIGNMENT FOR BENEFIT OF CREDITORS. 1Q5 the evidence that the assignment of - to , dated , 18 , was made by with intent to delay, hinder or defraud any of his creditors, and that when - , (as- signee), took possession of these goods, he knew of this intent on the part of - , then the plaintiff cannot re- cover by reason of the execution of this assignment. Kyle v. Harvey, 25 W. Va. 733. c. Same Recordation of deed of assignment Knowl- edge of purchaser of goods assigned of fraudulent assignment Statute of limitations. The court instructs the jury that if they believe from the evidence that the plaintiff bought the - in con- troversy knowing it was the same - - conveyed by - to , trustee, by a deed of assignment that was fraudu- lent and void, and that that deed was of record in this county where the purchase was made, then said plaintiff was bound to take notice of the fact that said deed con- veyed no title to said to said trustee, then they must find for the defendant, unless they further find that the plaintiff, or those under whom he purchased has had peaceable possession of said - , and claiming it as his own, for the period of five years. TTiorriburg v. Bowen, 37 W. Va. 540. d. Sale of goods assigned for valuable consideration Delivery and possession Statute of limitations Execution creditors. The court instructs the jury that if they believe from the evidence that the - in controversy was sold to , for a valuable consideration, and delivered the possession of same to said - ; that afterwards the said - - sold said - - to the plaintiff for a valuable consideration, and delivered possession thereof to him; and if they further find that five years elapsed from the said sale of the to the said first purchaser before the execution creditor 106 ATTACHMENTS. caused his execution to be levied thereon, then they should find that the plaintiff is entitled to said . Thornburg v. Bowen, 37 W. Va. 540. e. Actual possession by purchaser of goods assigned Statute of limitations. The court instructs the jury that if they believe from the evidence that the plaintiff and those under whom he holds, had had actual possession of the - in con- troversy for five years before the levy thereon by the execution creditors, then they should find for the plaintiff. Thornburg v. Boicen, 37 W. Va. 540. CHAPTER 6. ATTACHMENTS. (Action on bond of justice of the peace.) a. Party leaving the state not entitled to exemption. b. Same Change of residence Intention of party. a. Party leaving the state not entitled to exemption. The court instructs the jury that if they believe from the evidence that the plaintiff left the state with the in- tention of changing his residence to , (another state), and that while he was going out of this state pursuant to such intention, his property was attached and sold, as stated in the evidence, he was not entitled to claim, as against such levy, an exemption as a husband and parent residing in this state and in such case the jury should find for the defendant. State v. Allen, 48 W. Va. 155. b. Change of residence Intention of party. The court instructs the jury that if they believe from the evidence that the plaintiff left the state with the in- ATTEMPT AWARDS. 107 tention of removing his residence to any place outside of the same, he became a non-resident of the state as soon as he started on such removal, and to make the same. State v. Allen, 48 W. Va. 156. CHAPTER 7. ATTEMPT. a. A person charged with attempting to commit a felony on one cannot be convicted of attempt on another. The court instructs the jury that if they acquit the pris- oner of the felony charged in the indictment, they cannot convict of an attempt to commit the felony, unless they be satisfied beyond a reasonable doubt, that the prisoner at- tempted to shoot - , as charged in the indictment, and not some other person. State v. Meadoivs, 18 W. Va. 674. CHAPTER 8. AWARDS. a. What deemed an acceptance of. b. Repudiation of award. a. What deemed an acceptance of an award. The court instructs the jury that if they believe from the evidence that the defendant, on the - - day of - , , tendered to the plaintiff the sum of money specified in the award of the - - day of , , as and for the ascertained price or value of the premises in controversy and the property in said award referred to, and also a draft of a deed for said property to be executed by the plaintiff to the defendant, and that afterwards, and before the day of , - , the said plaintiff with knowledge of such tender, formally refused to accept or comply with 1()8 AWARDS BETTING AND GAMING. the provisions of said award, and gave notice of such decision to the defendant, then the action of the defendant was a sufficient compliance with said award. Gas Co. v. Wheeling, 8 W. Va. 344. b. Repudiation of award Demand for and refusal of new appraisal. The court instructs the jury that if after the appraise- ment made by - , and - , the plaintiff repudiated said appraisement and refused to accept the amount there- of claimed to be chargeable to the defendant, then the right afterwards to insist upon an appraisement to be made by two competent and disinterested appraisers, the plaintiff to select one and the defendant one, and the two so selected to name an umpire, as provided for in lines - - to - , both inclusive, of the policy, and if the jury find that the plaintiff, for any cause, refused to accept the result of said appraisal, and that after the knowledge of such refusal the defendant called upon the plaintiff by letter dated - , - , to submit to such appraisal as is provided to be made by said lines - to - , both inclusive, of the policy, and if the jury believe from the evidence that the plaintiff has failed or refused to enter into an appraisal as demanded by said letter, then the plaintiff cannot recover. Levy v. Insur- ance Co., 58 W. Va. . CHAPTER 9. BETTING AND GAMING. a. Character of devices used. The court instructs the jury that if they believe from the evidence, beyond a reasonable doubt, that the slot machine described in the indictment is a gaming table, BILLS OF LADING. 109 and that the said machine is so constructed that it offers unequal chances to the player and exhibitor, and that the unequal chances are in favor of the exhibitor of said ma- chine, then the said slot machine is a gaming table of like kind and character to A. B. C ; E. O, table, faro bank and keno table. State v. Gaughan, 55 W. Va. 693. CHAPTER 10. BILLS OF LADING. a. Interest in bills of lading or its proceeds. b. Fraudulent transfer of Purpose of Knowledge of. c. Pledge of endorsed bill of lading Warrant as against third parties. d. Draft drawn by seller in favor of bank Passing of title. e. Charging draft to account of pledger. f. Attachment of goods pledged. g. Right of property Indebtedness of pledger. h. Fraudulent transfer Presumptions as to fraud, i. Purchase, assignment and delivery of bill of lading. a. Interest in bill of lading, or its proceeds. The court instructs the jury that the issue for them to decide is simply whether, at the time of the levy of plain- tiff's attachment, the - - bank of - - had title to or lien on or any interest in the property mentioned in the bill of lading, marked "exhibit - " or its proceeds. Neill & Ellingham v. Produce Co., 41 W. Va. 41. b. Fraudulent transfer Purpose of Knowledge of. The court instructs the jury that before the plaintiffs could be entitled to have the transfer of the mer- HO BILLS OF LADING. chandise by the - - company to the - bank of - , (the petitioner), treated as void because of fraud, they must satisfy the jury, by the evidence in the case, that the - company was actuated by a fraudulent purpose, or had knowledge of it at the time when the transfer was made. JVet'W & Ellin gh-am v. Produce Co., 41 W. Va. 42. c. Pledge of endorsed bill of lading Effect of War- rant as against third persons. The court instructs the jury that the pledge of an en- dorsed bill of lading of goods in transit by land or water transfers the special property in the goods against third persons as well as against the pledger himself. Seill & Wlhiyhant v. Produce Co., 41 W. Va. 42. d. Draft drawn by seller in favor of bank Passing of title. The court instructs the jury that a draft drawn by a seller against a buyer in favor of a bank, by which it is discounted or purchased, with the bill of lading attached, passes title to the goods and draft to the bank. Neill & !:! Tin ;/Ji\\- of said river below said fall and dam, and that said obstructing of said river caused sand or sediment to settle in the river below said fall, and that by reason of such settling of sand or sediment the natural bed of said river below said fall was raised, and that the said fall was thereby reduced or lowered, and that the power of the water to run the said mill was thereby lessened, and that by reason of the les- sening of said power the plaintiff was unable to run his mill during any part of the time within the five years next preceding the institution of this suit, then the jury should find for the plaintiff. Pickcns v. Boom Co., 58 W. Va. . g. Same Statute of limitations as to action for injuries caused by. The court instructs the jury that if the defendant's boom has injured the plaintiff, as alleged in his declara- tion, the statute of limitations begins to run from the time that said injury occurred, and not from the date of the erection or completion of said boom. Pickens v. Boom Co.. r>S W. Va. . h. Same Leasing by owner of boom to another Effect of. The court instructs the jury that if they believe from the evidence that the defendant, the - - River Boom and Timber Company, secured a charter for the location of a liooin in - - River, and constructed the said boom so as to make it large enough to catch logs, and afterwards leased the same to the River Boom and Driving company for the purpose of operating the said boom for catching logs and timber, and if the jury further find that since the leasing of said boom to the said lessee. The - - River Boom and Driving Company has used and operated the BOOMS AND DAMS. 117 said boom, and additions which the latter has built there- to, and if the jury further find that the location, building and operation of the said boom has caused the injury to plaintiff, mentioned in his declaration, then the defendant can not escape liability for such injury, if any, which has occurred within the five years next preceding the institu- tion of this suit, on account of having made the lease. Pickens v. Boom Co., 58 W. Va. - . i. Charter rights of company Authority under. The court instructs the jury that the rights of the de- fendant company, under its charter, do not authorize it to locate a boom in such close proximity to plaintiff's mill, without plaintiff's consent, so as to impede the flow of the water and cause sand or other sediment to settle below his fall and dam; and if the jury find from the evidence that, within five years next preceding the institution of this suit, the plaintiff's mill has been prevented from run- ning by reason of the lessening of his water power and that such lessening of his water power was caused by reason of the impeding or backing of the water in - River on account of the location or operation of said boom, and the settling of sand or sediment below the plaintiff's said water power, caused thereby, then the jury should find for the plaintiff. Pickens v. Boom Co., 58 W. Va. . j. Criminal liability of boom owner for obstructing 1 floatable streams by the construction of dams. The court instructs the jury that it is a question for the jury to determine from the evidence whether - - river, at the point at which the dam complained of is located, is floatable; and if the jury believe from the evidence that said river is capable of being used to float rafts, boats and other timber in time of rises only, then, before they can find the defendant guilty, it must be proven to the jury 118 BURGLARY. by the evidence, beyond all reasonable doubt, that the dam complained of was so constructed and maintained as not to permit boats, rafts, and other timber to pass without unavoidable delay, at the times of such rises as made the said river so floatable. State v. Boom Co., 41 W. Va. 800. CHAPTER 13. BURGLARY. a. Breaking and entering Intent. b. What constitutes breaking and entering. c. Time of entering Intent presumed. d. Same Value of goods. e. Ownership of property Belief of defendant as to. f. Same Failure to establish criminal intent. g. Larceny openly committed. h. What constitutes a dwelling house. i. Larceny of goods when no burglary committed. a. Breaking and entering Intent to commit burglary when no larceny committed. The court instructs the jury that if they believe from the evidence in this case beyond a reasonable doubt that the prisoner broke and entered the store-house of - , as charged in the indictment, with the intent of committing larceny therein, they should find him guilty, though he may not have been guilty of any larceny therein. State v. Shores, 31 W. Va. 504. b. What constitutes breaking and entering. The court instructs the jury that there is no necessity in this case to show an absolute separation of the particles of wood, iron, &c., of the store-house or dwelling-house of BURGLARY. 119 - referred to in the indictment or of the door thereof, in order to make the breaking and entering thereof by the prisoner burglary. But if they believe from the evidence, beyond a reasonable doubt, that the prisoner raised the latch or pushed open the door of said dwelling-house or store-house, which was closed, and entered the same with the intent to commit larceny therein at the time and in the manner charged in the indictment, then the jury should find him guilty. State v. Shores, 31 W. Va. 504. c. Time of entering Intent presumed. The court instructs the jury that if they believe from the evidence, beyond a reasonable doubt, that the prisoner broke and entered the store-house of as charged in the indictment in the night time, and was guilty of larceny therein, then he is presumed to have broken and entered said store-house with the intention of committing such larceny, and unless this presumption is negatived to the satisfaction of the jury, then the jury should find said prisoner guilty. State v. Shores, 31 W. Va. 504. d. Same Value of goods. The court instructs the jury that if they believe from the evidence in this case beyond a reasonable doubt that the prisoner, on the night of the - - day of -, 18 , broke and entered the store-house of referred to in the indictment with the intent of committing larceny, and did commit larceny therein of the property of said of any value whatever, then they should find the prisoner guilty. State v. Shores, 31 W. Ya. 504. e. Ownership of property Belief of defendant as to. The court instructs the jury that if they are satisfied from the evidence, and that beyond reasonable doubt, that the prisoner, acting alone or in concert with and , who stand jointly indicted with him, broke and en- ll>0 BURGLARY. tered the dwelling or store-house mentioned in the in- dictment in this case on the day of - , 18 , in the night time, and they should further believe from the evi- dence that he so broke and entered said house for the pur- pose only of taking or drinking cider therein that he be- lieved in good faith to belong to him, then the}' should find him not guilty, although the jury may believe from the evidence that the cider so intended to be taken by him belonged to some one else. State v. tifiorcs, 31 W. Va. 504. f. Same Failure to establish criminal intent. The court instructs the jury that if they believe from the evidence in the case that the prisoner, together with others named in the indictment, broke and entered the store-house of - - for the purpose of taking therefrom goods or chattels that they honestly believed they had a right to take, then the criminal intent to commit larceny is not established, then they should find the prisoner not guilty. State v. Shores, 31 W. Va. 504. g. Larceny openly committed. The court instructs the jury that if they believe from the evidence that on the night of the day of - , IS , - - was keeping a store in the dwelling-house or store-house mentioned in the indictment, and that among other things kept for sale in said store was cider, and that it was the custom of said - - to deliver cider to his customers in glasses on the store counter and to make no demand for pay for the cider sold to his customers until they had drunk the same, and if they are further satisfied from the evidence that at the time aforesaid and during the usual business hours of said - 's store, the prisoner and - - and - - and - - being in said store, the pris- oner ordered cider for them, and that the cider was poured out from them into glasses and placed on the store counter, BURGLARY. 121 and that for some reason the prisoner, said - - and - went out of the said house and in a few minutes returned and found said store-house or dwelling-house door locked, and that it was still the usual business hours of the store and the said store-house was still lighted as in business hours, and the prisoner then and there alone, or in con- cert with said - , broke and entered the said store- house, and that the prisoner then and there appropriated to his own use and drank a part or all of the cider so poured out for him, and they further believe from the evi- dence that the prisoner so appropriated and drank said cider openly and in the presence of said - - and one of the servants of said - , who then worked in said house and was well known to said - , and that one - - was also present when said cider was so taken and drunk, and that said - , - - and said servant were all acquainted with said - , and that the said - , - - and said servant were in no way guilty in the taking of said cider, then the jury should not on the account of these circum- stances treat such taking or drinking of said cider as a larceny thereof. State v. Shores, 31 W. Va. 504. h. What constitutes a dwelling house. The court instructs the jury that if they believe from the evidence that - held the possession of said house at the time alleged in the indictment, and that he used and occupied said house as a dwelling, then, in contemplation of law, said house was the dwelling house of said - , although he may have absented himself therefrom for several months, and although he may have had another dwelling house during the same time. State v. Williams, 40 W. Va. 269. i. Larceny of goods when no burglary committed. The court instructs the jury that although they should believe from the evidence that no dwelling house was 122 CARRIERS. broken or entered, as alleged in the indictment, yet if they believe from the evidence that the defendant stole and carried away any of the goods of - , as alleged in the indictment, then they should find him guilty of the larceny of said goods. State v. Williams, 40 W. Va. 269. CHAPTER 14. CARRIERS. A. CARRIERS OF FREIGHT. B. CARRIERS OF LIVE STOCK. C. CARRIERS OF PASSENGERS. D. EQUIPMENTS. E. CONTRIBUTORY NEGLIGENCE. A. CARRIERS OF FREIGHT. a. Special contracts Shipments under Recovery un- der. b. Same Bills of lading as evidence of. c. Same Ordinary care Unforeseen accidents. d. Ordinary care No liability when exercised. e. Delivery of and refusal to receive goods. f. Freight shipped by river Carriers not insurers of. g. Same Burden of proof, h. Same. i. Right of action How defeated Exceptions as to. a. Special contracts Shipment under Recovery under. The court instructs the jury that if they believe from the evidence that the oil referred to in the declaration in this suit was contracted to be shipped and transported from, and to the places mentioned in the declaration, un- CARRIERS. 123 der special contracts, the plaintiff can only recover under such special contracts, and the terms and conditions of the same. Rathlone v. Railroad Co., 1 W. Va. 92. b. Same Bills of lading Evidence of. The court instructs the jury that bills of lading de- livered by the defendant (the R. E. Co.) ; of his agent to the plaintiff and given in evidence by him to the jury, are sufficient evidence of special contracts, and the terms un- der which the oil in said bills of lading respectively men- tioned, were to be transported by the defendant. Rath- bone v. Railroad Co., 1 W. Va. 92. c. Same Ordinary care Unforseen accidents. The court instructs the jury that if they believe from the evidence that said oil alleged to have been lost and destroyed, was shipped and transported under special con- tracts, and was so lost and destroyed, and that in trans- porting the same, the defendant, its agents and servants exercised such care as a prudent man would, as to his own goods, to protect said oil from accidents in its trans- portation, and that said fire was the result of an unfore- seen accident, which could not have been prevented by ordinary diligence, then the plaintiff ought not to recover in this suit, for the oil so lost by fire. RatTibone v. Rail- road Co. 1. W. Va. 93. d. Ordinary care No liability when exercised. The court instructs the jury that if they believe from the evidence, the said oil alleged to have been lost and destroyed and not delivered in , referred to in the evidence in this suit, was lost by fire and the defendant, its agents and servants, exercised ordinary care and dili- gence in transporting the same, the defendant is not liable. Rathbone v. Railroad Co., 1 W. Va, 92. 124 CARRIERS. e. Delivery and refusal to receive goods shipped. The court instructs the jury that if they find from the evidence that the defendant, or any one else offered to deliver to the consignees, at their place of business in , the goods shipped by - - on the - - day of - , from - , and the said - - refused to receive the same, then they should find for the defendant. Ryland v. Rail- way Co., 55 W. Va. 183. f. Carrier not insurer of freight shipped by river Care- lessness and negligence Due diligence. The court instructs the jury that - - is not an in- surer of the freight shipped on the - - river. In this suit it cannot be made liable, unless the jury are satisfied that it was guilty of carelessness and negligence in allow- ing the - - to remain an unreasonable time in the - chute, upon which the barge carrying the plaintiff's salt was sunk; or that by due diligence and care on the part of itself or its agent it could have discovered and removed the same. Tonijtkins \. Kanaicha Board, 21 W. Va. 230. g. Same Burden of proof. The court instructs the jury that if they believe from the evidence that - - chute was obstructed by a - lying therein, by reason of which the barge was sunk, and plaintiff's salt was lost, then upon proof of such obstruc- tion the burden of proof is on the defendant to show that it used due diligence to ascertain and remove said ob- struction before said loss. Tompkins v. Kanaicha Board, 21 W. Va. 231. h. Same. The court instructs the jury that the burden of proof in this suit is on the plaintiff to show that there was negligence and carelessness on the part of the defendant, and unless he so proves, the jury must find for the de- fendant ; but the question of negligence or carelessness is CARRIERS. 125 oue for the consideration and decision of the jury upon all the evidence before them and upon the duties imposed upon the defendant by law ; and any want of diligence in not performing such duty is negligence and carelessness on its part. Tompkins v. Kanawha Board, 21 W. Va. 231. i. Right of action How defeated Exception as to. The court instructs the jury that if they believe from the evidence that if the loss to the plaintiff occurred in a material part by the carelessness and want of skill of those having charge of the steamer - and barge, which carried plaintiff's salt, the plaintiff cannot recover in this action; but that such carelessness or want of skill on the part of those having charge of the steamer - - and barge must have been to such an extent, as to have contributed to the loss, which ordinary diligence might have avoided. Tompkins v. Kanawha Board, 21 W. Va. 230. B. CARRIERS OF LIVE STOCK. a. Special contracts Exemption from liability under Negligence. b. Same When unlawful. c. Same Delay in shipment under. d. Same Injuries resulting from negligence. e. Same Modification of Reasonable and just modi- fications. f. Same Injuries resulting from heat of weather. g. Same. h. Means of transportation Acceptance of by ship- per. i. Same Consideration of on question of liability, j. Delay in shipment. a. Special contracts Exemption from liability under, unless negligence be shown. The court instructs the jury that if they believe from CARRIERS. the evidence that the contract to carry safely the - alleged in the plaintiff's declaration, was subject to the condition that the defendant, (R. R. Co.) should not be liable for damages or injury to the live stock mentioned in the declaration, whilst in the cars of the defendant, or for delay in the carriage of said stock, or escape thereof from the cars, except such as might arise from the gross negligence of the agents or officers of the defendant, act- ing in the discharge of their duties, then they should find for the defendant. Skeels v. Railroad Co., 3 W. Va. 558. b. Same Unlawful, when seeks to exempt carrier from responsibility for negligence under. The court instructs the jury that the defendant in this case could not lawfully stipulate by special contract or otherwise for exemption from responsibility for the negli- gence of itself or its servants. Maslin v. Railroad Co., 14 W. Va. 184. c. Same Delay in shipment. The court instructs the jury that the defendant could not lawfully stipulate by special contract or otherwise for exemption from responsibility for the negligence of itself or its servants; and if the jury believe from the evidence that there was an unreasonable delay in transporting the cattle referred to in this case from - - station to the city of - - by the defendant, and that such delay was caused by the negligence of the defendant or its servants, they should find for the plaintiff. Bosley v. Railroad Co., 54 W. Va. 571. d. Same Injury resulting from negligence. The court instructs the jury that although they may be- lieve from the evidence that the paper writing dated , 18 , entitled "stock contract" was fairly executed, yet if they believe from the evidence, that the said cattle in CARRIERS. 127 their transportation by the defendant from - - to - sustained loss and injury, and that said loss and injury resulted from the negligence of the defendant or its servants, then they must find for the plaintiff. Maslin v. Railroad Co., 14 W. Va. 184. e. Same Modification of Carrier exempt under if such modification be just and reasonable. The court instructs the jury that if they believe from the evidence that the cattle mentioned in the declaration were recived and taken by the defendant at - , to be carried and delivered to - , at - , by virtue of and upon the terms and stipulations of the contract of ship- ment of the - - day of - , 18 , then the defendant was not liable as a common carrier for the safe and care- ful carriage and delivery of the same, so far as such liability was modified by any special contract limiting the same, provided such modifications are just and reasonable in law. Maslin v. Railroad Co., 14 W. Va. 186. f. Same No liability under for injuries resulting from heat of weather, unless negligence be shown. The court instructs the jury that if they believe from the evidence that the - - head of cattle mentioned and described in the declaration, and delivered by the plain- tiff to the defendant, at - , to be transported to - , were so delivered by the plaintiff, and so received by the defendant, to be transported upon the stipulations, condi- tions and understandings expressed in the agreement in writing between the plaintiff and defendant, dated the - day of , 18 , and if the jury further believe that the plaintiff suffered no other damage from the undertak- ing of the defendant in relation to the said cattle than what resulted from heat of the weather, then they must find for the defendant, unless they further find that such injury might have been prevented by the exercise by de- 128 CARRIERS. fendant's servants of such care and diligence as was practicable under the circumstance. Uaslin v. Railroad Co., 14 W. Va. 180. g. Same. The court instructs the jury that if they believe- from the evidence that the cattle mentioned in the declaration were taken and received by the defendant at - , to be carried and delivered to , at - , upon the terms and stipulations of the contract of - - of - , 18 , the de- fendant was not liable to the plaintiff for loss and injury to the said cattle which resulted from heat, unless they should further find that defendant or its servants were guilty of negligence in not employing such means to alle- viate such consequences as were reasonable and practica- ble under the circumstances. Maslin v. Railroad Co., 14 W. Va. 187. h. Carrier not required to furnish means of transporta- tion other than accepted by shipper. The court instructs the jury that if they believe from the evidence that the plaintiff put his cattle upon the slow stock train of the defendant to be carried upon it to - , and paid the hire therefor there, then the plaintiff can- not, under the pleadings in this case, recover any damages because of any failure of the company to furnish cars for the shipment of said cattle at an earlier or different time upon the request of the plaintiff. Maslin v. Railroad Co., 14 W. Va. 184. i. Means of transportation not to be considered on ques- tion of liability. The court instructs the jury that the jury cannot con- sider, on the question of liability of the defendant, the fact that the cattle were not shipped on a different train, CARRIERS. 129 or were shipped on the train on which they were carried. Maslin v. Railroad Co., 14 W. Va. 185. j. Delay in shipping Assessment of damages caused by. The court instructs the jury that if they believe from the evidence that there was such unreasonable delay on the part of the defendant or its servants in transporting said cattle to the city of - , they should find for the plaintiff; and if they further believe from the evidence that the plaintiff was damaged by said delay, in assessing such damages they should take into consideration all damages naturally and proximately resulting from such delay. Bosley v. Railroad Co., 54 W. Va. 571. C. CARRIERS OF PASSENGERS. 1. DEGREE OP CARE REQUIRED AND LIABILITY OF CARRIERS IN- GENERAL. a. Duty to exercise greatest care and diligence. b. Management of trains Care required in. c. Liability of carrier for wrongful act of agent. d. Liability of carrier for negligence of agents. e. Liability of carrier for negligence of contractors. f. Excessive fares Schedule of rates. g. Acts of conductors in collecting excessive fares. a. Duty to exercise greatest care and diligence. The court instructs the jury that the law, in tenderness to human life and limbs, holds railroad companies liable for the slightest negligence and compels them to repel, by satisfactory proofs, every imputation of such negligence. When carriers undertake to convey passengers by the powerful, but dangerous agency of steam, public policy and safety require that they be held to the greatest pos- sible care and diligence. Any neglect or default in such cases makes such carriers liable in damages under the statute. Searles v. Railway Co., 32 W. Va. 374. 130 CARRIERS. b. Management of trains Care required in. The court instructs the jury that a railroad company is held by the law to the utmost care, not only in the man- agement of its trains and cars, but also in the structure, repair and care of the track and bridges and all other arrangements necessary to the safety of passengers. Searlcs v. Railway Co., 32 W. Va. 374. c. Liability of carrier for wrongful acts of agent Ar- rest of passenger while on train. The court instructs the jury that if they believe from the evidence that the plaintiff, without just cause, was arrested after he became a passenger on one of the de- fendant's trains, and during the time that he was on such train, either by the conductor in charge of said train, or by the policeman - , by order of said conductor, that the act of the conductor, or of the said policeman acting under the orders of the said conductor, was the act of the defendant. Gillingham v. Railroad Co., 35 W. Va. 602. d. Liability of carrier for negligence of agents. The court instructs the jury that if they believe from the evidence that the plaintiff was injured by being struck by a stone standing in dangerous proximity to the de- fendant's railroad track, and that the position of said stone was known to the defendant, or the agents of said defendant, or might have been known to them by the use of ordinary care and diligence, and there was such negli- gence of such agents in failing to remove said stone, or in failing to use care and diligence in ascertaining whether said stone was in dangerous proximity to the track of said defendant, such negligence of such agents was the negli- gence of the defendant. Carrico v. Railway Co., 39 W. Va. 95. e. Same Contractors. The court instructs the jury that if they believe from CARRIERS. 131 the evidence that the defendant company, while using its track for the carriage of passengers, engaged in a work to be done on its road, or in immediate proximity to its track, negligence in the performance of which would, in the estimation and opinion of a reasonable, cautious per- son, involve the hazard of obstruction to the passage of cars, and an accident to a passenger is caused by an ob- struction arising from negligence in the performance of the work, it is no defence for said railroad company to show that it had placed the work in the hands of a con- tractor, and that the obstruction was caused by the care- lessness of one of his employes. Carrico v. Railway Co., 39 W. Va. 103. f. Excessive fares Schedule of rates Rules of com- pany Violation of. The court instructs the jury that if they believe from the evidence that the conductor collected - - cents, and the company had a schedule of rates for the government of the conductors in collecting fares from passengers, and a duplicate of it was furnished to the conductor, and it was against the rules of the company for the conductor to charge the plaintiff more than the rates fixed by said schedule, and if said rates were not more than the law allowed, then the jury must find for the defendant. Hall v. Railroad Co., 44 W. Va. 41. g. Same Act of conductor in collection of excessive fares. The court instructs the jury that before they can find for the plaintiff, they must believe from the evidence, to the exclusion of every reasonable doubt, that the company charged the plaintiff more than was allowed by law, and that notwithstanding the conductor charged - - cents, which was more that the law allowed, if the jury believe 132 CARRIERS. that the rules of the company did not allow the conductor to charge the plaintiff more than was allowed by law, and that he acted in violation of the rules of the company, the act of the conductor was not the act of the company. Hall v. Railroad Co., 44 W. Va. 41. 2. THE RELATION OF CARRIER AND PASSENGERS. a. What necessary to become a passenger Intention of party as to Party coming to board train When purchase of ticket not necessary. b. Fraud in procurement of ticket. a. What necessary to become a passenger Intention of party as to Party coming to depot to board train Coming within a reasonable time before departure of train When purchase of ticket not necessary. The court instructs the jury that to become a passenger and entitled to protection as such it is not necessary that a person shall have entered a train or paid his fare, but he is a passenger as soon as he becomes within the control of the carrier at the station, through any of the usual ap- proaches, with the intent to become a passenger. And the jury are further instructed that if they believe from the evidence that the plaintiff, on the - - day of - , 18 , went to the defendant's depot at the town of - , by one of the usual routes thereto, for the purpose and with the intention of taking the next train, and stepped upon the platform of said depot with the intention and purpose of becoming such passenger, the plaintiff then became, in contemplation of law, a passenger of the defendant, pro- vided she came to said depot and platform within a rea- sonable time before the time for the departure of said train, whether or not she had purchased a ticket from the defendant or its agent. Barker v. Railroad Co., 51 W. Va. 430. CARRIERS. 133 b. Fraud in procurement of ticket Right of carrier to rescind contract for. The court instructs the jury that the possession of a railroad ticket is not conclusive evidence of the right of the holder to transportation ; that the circumstances may be such that it will be a proper subject of investigation whether the holder of the ticket has not got possession of it by fraud, and the jury are therefore further in- structed that if they believe from the evidence in this case that the ticket was obtained by , editor of the , from the defendant, by the representation to the said rail- road company that , the plaintiff, was in the employ of the said , and a member of the staff of the , and if they further believe that this representation was false, and if they further believe that by means of such false rep- resentation the name of , the plaintiff, was inserted in said ticket, that in such case^the jury may consider such false representations to find whether such ticket was fraudulently obtained by , and if they believe that such ticket was fraudulently obtained from the defendant, then in such case the defendant had a right, upon the dis- covery of such fraud, to rescind the contract and take up the ticket Moore v. Railroad Co., 41 W. Va. 175. 3. ARREST OP PASSENGERS. a. When railroad company not liable for acts of con- ductor Scope of authority of conductor. b. Same. c. Same. d. Arrest of passenger armed with dangerous weapons. a. When carrier not liable for acts of conductor Scope of authority of conductors. The court instructs the jury that the plaintiff can not recover in this case unless the acts done by the conductor in causing the arrest of the plaintiff were within the scope 134 CARRIERS. of his employment by the defendant railroad company; and such acts, to be within the scope of his employment, must be such as he would be usually and naturally called upon to do while discharging his duties as a railroad con- ductor in and about the business of the defendant rail- road company. Gillingham v. Railroad Co., 35 W. Va. 603. b. Same. The court instructs the jury that it is not sufficient that the acts complained of were done during the time of the conductor's employment by the railroad company, or at the place where his duties called him to be. There must be something more, something which he was authorized by the defendant company to do, or which he did do while acting as such conductor, in the scope of his duties and employment. Gillingham \. Railroad Co., 35 W. Va. 603. % c. Same. The court instructs the jury that unless the act done by the conductor in causing the arrest of the plaintiff was authorized by the railroad company, or was properly and legitimately within the scope of his employment, you must find for the defendant. Gillingham v. Railroad Co., 35 W. Va. 603. d. Arrest of passenger armed with a dangerous weapon. The court instructs the jury that if they believe from the evidence that the plaintiff, while armed with dan- gerous or unlawful weapons, was on the train of the de- fendant, within the corporate limits of , and it be- came known to the police of that town that he was so unlawfully armed, the police had the right to arrest him on the cars and take him therefrom, and the defendant, the - - railroad company, would not be liable for such arrest. Claiborne v. Railway Co., 46 W. Va. 369. CARRIERS. 135 4 EJECTION OP PASSENGERS. a. Passenger holding ticket fraudulently procured. b. Same Knowledge of passenger that ticket was void Duty of passenger to enquire as to validity of ticket. c. Same With whom power to eject rests. e. Unauthorized assault on passenger Disorderly conduct of passenger. f. Same Special instructions of carrier as to move- ment of trains Acts of conductor when within his scope of duty and power. a. Passenger holding fraudulent ticket Right of car- rier to eject. The court instructs the jury that if the jury believe from the evidence that the ticket was issued in considera- tion of the publication by - , editor of - , of the time card and local notices in the - , of the defendant for the year - , and if they further believe from the evi- dence that the plaintiff had knowledge of the said terms upon which said ticket was issued and delivered to the said - , and if they further believe from the evidence that there was no other consideration paid for said ticket, and if they further believe from the evidence that the said ticket was issued in the name of the plaintiff up- on the representation made by - , editor of the - , that the said plaintiff was on the staff of the - - at the time the said ticket was delivered to the said - and received by the plaintiff, and if they further believe from the evidence that the representations made by the said , editor of the , that the said plaintiff was on the staff of the said , were false, and that those false repre- sentations induced the railroad company to insert the name of said plaintiff in said ticket, then, in such case, up- on the discovery by the defendant of such misrepresenta- tions, said defendant had the right to cancel said ticket 136 CARRIERS. and take the same from the possession of the plaintiff, and had the further right to demand from the said plain- tiff the amount necessary to transport him from - - to ; and upon the failure upon the part of the plaintiff to pay the conductor the amount of fare necessary for such transportation, the conductor had a right to remove said plaintiff from its car, using only such force as was necessary to accomplish this purpose. Moore v. Railroad Co., 41 W. Va. 176. b. Same Knowledge of passenger that ticket was void Duty of passenger to enquire as to validity of ticket. The court instructs the jury that if they believe from the evidence that before the day that the plaintiff was re- moved from defendant's car by the conductor, the said conductor notified the plaintiff that he would not receive said ticket for his fare on said railroad, and if they further believe that the said conductor notified the plaintiff that he had better send said ticket to the general office of the railroad company, or call there in person and make en- quiry as to what was wrong with said ticket, and if they further believe from the evidence that before said plain- tiff took passage on the train of the defendant from to - , he had an opportunity offered him of making an investigation as to the validity of his ticket, and failed, neglected, or refused to do so, then in such case the plain- tiff was guilty of negligence in not making the necessary enquiry as to the validity of said ticket; and the jury should take into consideration such failure on the part of the plaintiff, in arriving at their verdict in this case. Moore v. Railroad Co., 41 W. Va. 177. c. Same. The court instructs the jury that if they believe from i CARRIERS. 137 the evidence that the plaintiff had notice that the railroad company would not receive said ticket for his fare for travel on its railroad, a sufficient length of time before he took passage on its train, the day he was removed therefrom, to have enabled him to have investigated said ticket, and to enquire into the reasons of this refusal, at the general office of said defendant, and if they further believe from the evidence that the said plaintiff failed to make such enquiries as to the validity of his ticket, then he was guilty of negligence in going upon the defend- ant's train without necessary means to pay his fare as a passenger, and after having notice that his ticket would not be accepted; and the jury should consider such neglect on the part of the plaintiff, in arriving at their verdict in this case. Moore v. Railroad Co., 41 W. Ya. 178. d. Same Power to eject With whom rests. The court instructs the jury that when a railroad train is running on the main line of its road in the course of its regular run, and is manned by a conductor, engineer, fireman and brakeman, like the one shown in the evidence here, in the absence of proof to the contrary, all power to eject rests impliedly, under the law, with the conductor, and such power must be exercised either by such con- ductor or some one else acting under or by his order or command. Landers v. Railroad Co., 46 W. Va. 498. e. Unauthorized assault on passenger Disorderly con- duct of passenger Preponderance of evidence. The court instructs the jury that if they believe from a preponderance of the evidence that the plaintiff, at the .time the injury complained of, while riding as a passenger on the defendant's train, was cursing or behaving in a riotous or disorderly manner, then it was the privilege of the defendant to put him off such train, and the law i:;s CARRIERS. gave the conductor and trainmen in charge of such train the right to use such force as was necessary for that purpose ; but no such conduct on the part of the plaintiff would license or authorize the conductor on such train to unnecessarily assault and beat the plaintiff. Smith v. Railway Co., 48 W. Va. 70. f. Same Special instructions of company as to move- ment of trains Acts of conductor when within scope of his duty and power. The court instructs the jury that the special instruction offered in evidence, reading as follows : "Agents and yard masters will have charge of and direct movements of all trains and trainmen in - , - , - - and - yards," does not take away the power and authority im- plied, possessed under the law by the conductor of a through freight train to protect and care for his own train, while the same may have been on the main line of the railroad; and if the jury believe from the evidence that the said train was running on the main track, going on its regular run - , with the conductor and the rest of the crew aboard, after the yard master had signalled the conductor to leave, then such conductor, after his train had started and was moving on the main line on its through run (although it may have been at the time within the yard limits of the railroad company), had the authority to order a trespasser from his train ; and if the jury believe from the evidence that said conductor ordered the plaintiff ejected from his said train under such cir- cumstances, then such conductor was acting in the line of his duty, and within the scope of his duty, and within the scope of his implied powers, in the absence of evi- dence conferring such authority upon some one else then on the said train. Landers v. Railroad Co., 46 W. Va. 499 CARRIERS. D. EQUIPMENTS. a. Care required in the construction of roads and manage- ment of trains. The court instructs the jury that a railroad company is held by the law to the utmost care, not only in the management of its trains and cars, but also in the struct- ure, repair and care of the track and bridges and all other necessary arrangements necessary to the safety of passen- gers. Searles v. Railroad Co., 32 W. Va. 374. E. CONTRIBUTORY NEGLIGENCE. a. Obstructions in dangerous proximity to railroad tracks. b. Places of danger Duty of passengers occupying. c. Exposure by passengers to danger. d. Same In violation of reasonable regulations of carrier. e. Same Heedless exposure to danger. f. Same When increased exposure does not prevent recovery for injury. g. Same Knowledge of carrier of danger to which passenger exposed. h. Same Care and diligence required of carrier. i. Intoxication of passenger. j. Restraint upon passengers by carriers. k. Preponderance of evidence when contributory neg- ligence relied on. 1. Risks assumed by passenger Unavoidable acci- dents. m. Same Negligence of carrier. n. Concurrent negligence. o. Same Apportionment of negligence. 140 CARRIERS. a. Obstructions in dangerous proximity to railroad track. The court instructs the jury that if they believe from the evidence that the defendant placed* or allowed to be placed by its railroad track - - in such dangerous proximity to said track as to prevent the passage of a passenger car on said track without striking or scraping said car, and in consequence thereof the plaintiff was injured as is charged in the declaration, without fault on his part contributing to said injury, such act of the defendant is negligence in law. Garrico v. Railway Co., 39 W. Va. 92. b. Places of danger Duty of passenger occupying to obey request of carrier. The court instructs the jury that it is the duty of a passenger unnecessarily riding on the platform of a car in motion to go into the car when requested by the con- ductor or others in charge of the train, if there be only standing room in the car, and if the jury believe from the evidence that the plaintiff's failure to obey such re- quest contributed to his injury, they should find for the defendant. Fisher v. Railroad Co., 42 W. Va. 195. c. Exposure by passenger to danger. The court instructs the jury that if they believe from the evidence that the plaintiff's arm was resting on the window-sill of the passenger car, the placing of his arm there was not negligence on the part of the plaintiff, pro- vided, when resting upon said sill, it did not protrude beyond the window of the car. Carrico v. Railway Co., 39 W. Va. 96. d. Same When in violation of reasonable regulation of carrier. The court instructs the jury that a regulation of a rail- CARRIERS. 141 road company which forbids passengers to stand upon the platform while the car is in motion is a reasonable and proper rule ; and if a passenger, in violation of such regu- lation, unnecessarily exposes himself, he does so at his own peril. Fisher v. Railroad Co., 42 W. Va. 193. e. Same Heedless exposure to danger Duty of carrier. The court instructs the jury that if they believe from the evidence that the plaintiff was riding on the platform of the defendant's car in such a state of intoxication as to be careless and heedless of the danger to which he was exposed, and the conductor was aware of his position and exposure to danger, it was the duty of said conductor to use only ordinary precautions for his safety, such as calling his attention to the danger and the rules of the company forbidding such exposure, but such conductor would not be required to exercise or impose any restraint upon the plaintiff. FisJier v. Railroad Co., 42 W. Va. 194. f. Same When increased exposure by passenger does not prevent recovery for injury Burden of proof. The court instructs the jury that if they believe from the evidence that plaintiff's arm protruded beyond the window of the car, yet the plaintiff can recover if the jury further believe from the evidence that the injury to him would have occurred even if his arm had not protruded beyond the window of the car; and the burden of prov- ing that the accident would have happened even if his arm had not protruded as aforesaid devolves upon the plain- tiff. Carrico v. Railway Co., 39 W. Va. 96. g. Same Knowledge of carrier of danger to which pass- enger exposed When negligence of passenger does not relieve carrier from liability. The court instructs the jury that if they believe from 142 CARRIERS. the evidence that the plaintiff was guilty of negligence, and that that negligence may have contributed to the injury, yet, if the jury further believe from the evidence that the negligent position of said plaintiff was known to the defendant or its servants, and that with such knowl- edge the injury to the plaintiff could then have been prevented by the use of care and diligence on the part of said defendant or its servants, then the plaintiff's negli- gence will not excuse or relieve the defendant from lia- bility. Carrico v. Railway Co., 39 W. Va. 99. h. Same Care and diligence required of carrier. The court instructs the jury that though the plaintiff may have been guilty of negligence, and although that negligence may have contributed to the injury, yet if the defendant could, by the exercise of ordinary care and dili- gence, have avoided the injury, the plaintiff's negligence will not excuse or relieve the defendant from liability. Carrico v. Railway Co., 35 W. Va. 400. i. Intoxication of passenger. The court instructs the jury that in determining the question of whether the plaintiff was guilty of contribu- tory negligence, they may take into consideration the condition of the plaintiff at the time that is, if he were intoxicated at the time of the injury, or partly so, they may take this fact into account in determining whether he was guilty of contributory negligence. Fisher v. Rail- road Co., 42 W. Va. 194. j. Restraint upon passengers by carriers. The court instructs the jury that a railroad company has no right or authority to impose upon its passengers any restraint even to enforce its reasonable rules. Fisher v. Railroad Co., 42 W. Va. 194. CARRIERS. 143 k. Preponderance of evidence when contributory negli- gence relied on. The court instructs the jury that in order for the plain- tiff to recover, it is only necessary that he make out his case by a preponderance of the evidence, and if the de- fendant relies upon the contributory negligence of the plaintiff to defeat him, said contributory negligence must be proved by a preponderance of all the evidence in the case, as well that of the plaintiff as that of the defendant. Carrico v. Railway Co., 39 W. Va 102. 1. Risks assumed by passenger Unavoidable accidents. The court instructs the jury that the plaintiff, as a passenger on the defendant's car, is presumed to have taken upon himself all the risk necessarily incident to that mode of traveling; and if the jury believe from the evidence that, without the fault of the defendant, but by inevitable accident, plaintiff was injured, they should find for the defendant. Fisher v. Railroad Co., 42 W. Va. 193. m. Same Negligence of carrier. The court instructs the jury that a passenger upon a railroad train takes all the risk attending that mode of travel, except such as may be caused or incurred by the negligence of the railroad company or its servants, and unless such negligence by the defendant is shown by the evidence, the jury should find for the defendant. Fisher v. Railroad Co., 42 W. Va. 193. n. Concurrent negligence. The court instructs the jury that if they believe from the evidence that both the plaintiff and defendant were guilty of negligence, that such negligence of both was concurrent or running together, and co-operated to pro- 144 CIVIL DAMAGE ACT. duce the injury complained of, they should find for the defendant. Fisher v. Railroad Co., 42 W. Va. 193. o. Same Apportionment of negligence. The court instructs the jury that if they believe from the evidence that the injury in the declaration mentionod was the result of the concurrent negligence of both the plaintiff and defendant, the jury has no right to apportion the fault, and to find a verdict for the plaintiff upon that ground, but in such case they should find for the defendant. Fisher v. Railroad Co., 42 W. Va. 194. CHAPTER 15. CIVIL DAMAGE ACT. a. Sale of intoxicating liquors to minors Who may maintain suit. b. Same Unlawful sales to husband. c. Same Injury in person or in means of support. d. Same Knowledge of liquor dealer as to minority. a. Sale of intoxicating liquor to minor Right of mother injured in support, to sue for. The court instructs the jury that if the mother of a minor son has been injured in her means of support by the intoxication of such son, caused in whole or in part by intoxicating liquors unlawfully sold to him by a liquor dealer, the mother has a right of action against the per- son making such sale, although at the time of such in- jury she may be living with a husband, on whom she de- pends in part for support. McMaster v. Dyer, 44 W. Va. 645. CIVIL DAMAGE ACT. 145 b. Same Unlawful sales to husband. . The court instructs the jury that if they believe from the evidence that the plaintiff was injured in her means of support in consequence of the intoxication, habitual or otherwise, of her husband, caused in whole or in part by the unlawful selling or giving intoxicating liquors to him by - , they shall find for the plaintiff for all damages sustained and for exemplary damages. Mayer v. Frobc, 40 W. Va. 246-258. c. Same Injury in person or in means of support Pre- ponderance of evidence. The court instructs the jury that if they believe from the preponderance of the evidence that the defendant has injured the plaintiff, in person or in means of support, in manner and form as alleged in the declaration, by un- lawfully selling to her minor son, - , intoxicating liquors, as alleged, and that his intoxication was caused, in whole or in part, by intoxicating liquors unlawfully sold to him by the defendant, as in the declaration alleged, and that such injury was the result of such intoxication, the jury should find for the plaintiff. McMaster v. Dyer, 44 W. Va. 645. d. Same Knowledge of liquor dealer as to minority. The court instructs the jury that a sale of intoxicat- ing liquors by a liquor dealer to a minor is unlawful, if at the time of such sale the liquor dealer knows, or has reason to believe, that the purchaser is a minor. Mc- Master v. Dyer, 44 W. Va. 646. 14fi CONDEMNATION PROCEEDINGS. CHAPTER 16. CONDEMNATION PROCEEDINGS. 1. MAIN LINES OF RAILROADS. 2. LATERAL LINES OP RAILROADS. 3. FOR PURPOSES OF RAILROAD BRIDGES. 1. MAIN LINES OF RAILROADS. a. Necessity for taking property How determined. b. Discretion as to location How controlled. c. Permanent injury to real property. d. Title and possession of property Necessity for proving. e. Future or prospective injury. f. Land condemned Location Market value Com- pensation. g. Same What not to be considered, h. How damages estimated. i. Burden of proof Preponderance of evidence. a. Necessity for taking property How determined. The court instructs the jury that while it is incum- bent on the petitioner to show by a preponderance of the evidence that a necessity exists for the taking of the property described in the petition, such necessity is not to be regarded and treated as an imperative, but a rea- sonable one, looking to the proper discharge by the petitioner of its duties to the public; and if the jury be- lieve from the evidence that such a necessity exists, taking into consideration the present, and also the prospective needs of the petitioner, within a reasonable time, and that it has not, in this instance, unreasonably exercised the CONDEMNATION PROCEEDINGS. 147 discretion it possesses in locating its tracks, buildings, etc., then the verdict should be in its favor upon the issue presented by the plea filed herein. (Note. The - plea referred to alleged that the land sought to be condemned was not necessary for the purposes sought) . Railroad Co. v. Oil Co., 35 W. Va. 214. b. Discretion as to location How Controlled. The court instructs the jury that railroad companies possess a large discretion as to the location of their tracks and buildings; and this discretion is not to be controlled if it has not been exercised unreasonably. And in this case, even if the jury should believe that lands other than those in question might or could have been found and ac- quired suitable for the petitioner's purpose, that fact would constitute no defense or objection to the present claim. Railroad Co. v. Oil Co., 35 W. Va. 214. c. Permanent injury to real property. The court instructs the jury that if they believe from the evidence that the property of the plaintiff has been permanently injured and damaged, and its value de- preciated by the laying and construction of the railroad track in question, and that the defendant laid or had it laid and constructed by its agents and employes, then the plaintiff may recover in this action. Fox v. Railroad Co., 34 W. Va. 476. d. Same Title and possession of property Necessity for proving. The court instructs the jury that to justify the plaintiff to recover damages for the laying of the track in ques- tion, it is his duty to allege both his title to and possession of the premises, by himself or his tenant, and also that his property had been permanently injured and damaged, and 148 CONDEMNATION PROCEEDINGS. rendered of less value by reason of the existence and operation of the said railroad, and also to prove his right to recover upon such allegations by a preponderance of evidence, and failing to do so, the jury must find for the defendant. Fox v. Railroad Co., 34 W. Va. 478. e. Future or prospective injury. The court instructs the jury that in determining this case the jury are not to take info consideration any fu- ture or prospective injury or damage that the plaintiff might sustain by reason of the railroad track or its use and operation to his said property, but they may take into consideration any permanent damages to, and deprecia- tion of the value of his said property, by the laying and construction of said track. Fox \. Railroad Go., 34 W. Va. 478. f. Land condemned Location Market value Compen- sation. The court instructs the jury that if they believe from the evidence, facts and circumstances before them in this proceeding, that the land mentioned and described in the notice, application and commissioners' report herein sought to be taken in this proceeding, is within the cor- porate limits of the town of - , and at the time of the proposed taking thereof by the applicant, had a market value, then such market value together with the view of the premises would be the proper measure of compensa- tion to be allowed by the jury to the defendant for the same. Railway Co. v. Buskirk, 57 W. Va. 417. g. Same What not to be considered. The court instructs the jury that in ascertaining what would be a just compensation to the defendant for the land proposed to be taken by the applicant, as set forth CONDEMNATION PROCEEDINGS. 149 in the notice, application and commissioners' report in this proceeding, such general and intangible benefits as have accrued to this property in common with all other property in the community where it is situate, by reason of the proposed building of the - railroad of its road into said community, can not be deducted from its fair market value, if they find it had such value, at the time the same was proposed to be taken by said railroad com- pany. Railway Co. v. Buskirk, 57 W. Va. 417. h. How damages estimated. The court instructs the jury that in ascertaining the value of the land proposed to be taken by the - - rail- road company they may properly enquire into its value by reason of its being - , but in considering the market value of the land they must not consider the uses to which the - - railroad company had put this ground in constructing 'its railroad. R. R. Co. v. Shepherd, 26 W. Va. 680. i. Burden of proof Preponderance of evidence. The court instructs the jury that the burden of proof is on the plaintiff to make out his case by a preponderance of evidence as delivered to the jury in the presence of the court and the situation of the property in question as viewed by the jury under the order of the court, and it devolves on the plaintiff by like preponderance of evidence to satisfy the jury that the defendant laid the said track. Fox v. Railroad Co., 34 W. Va. 477. 2. BRANCH OR LATERAL LINES OP RAILROADS. a. Eight to construct lateral lines Abandonment of work on main line. b. Same Construction of portion of main line. 150 CONDEMNATION PROCEEDINGS. c. Same. d. "Lateral Line" defined. a. Right to construct lateral line Abandonment of work on main line. The court instructs the jury that if they believe from the evidence that the petitioner built and constructed its main line of railroad as designated and contemplated by its charter from the - boundary of the city of - , to a point on the - , it had and has the right to con- struct a branch or lateral line of railroad connecting with the main line at such point; and this, although the jury may further believe from the evidence that it ceased fur- ther work on the main line, and abandoned all intention of building and constructing further in an - - direc- tion, or towards the - - state line. Railroad Co. v. Oil Co., 35 W. Va. 213. b. Same Construction of portion of main line. The court instructs the jury that if they believe from the evidence that any substantial portion of the main line of the railroad contemplated by its charter has been built or constructed by the petitioner, their verdict should be in its favor upon the issue raised by the plea. (Note. The - plea alleged the abandonment of the main line.) Railroad Co. v. Oil Co., 35 W. Va. 214. c. Same. The court instructs the jury that if they believe from the evidence that so much of the petitioner's railroad as has been constructed from - - to - , is a portion of the main line of such railroad, as designated and con- templated by the charter of the - - railroad com- pany, then their verdict should be for the petitioner, on the issue presented by the - - plea filed by the defend- ant. Railroad Co. v. Oil Co., 35 W. Va. 214. CONDEMNATION PROCEEDINGS. 151 d. ' ' Lateral Line ' ' defined. The court instructs the jury that if they believe from the evidence that the line of the railroad constructed from - - to - , is a portion of the main line of pe- titioner's railroad, as contemplated by its charter, they are instructed that the length of the line connecting with such main line at - - and running thence ,is not decisive of the question whether such second line is or is not a branch or lateral line. Neither length nor direc- tion enter into the definition of a 'branch or lateral' rail- road. The only limit in this state as to length is the statutory one of - - miles. Railroad Co. v. Oil Co., 35 W. Ya. 213. 3. FOR PURPOSES OP RAILROAD BRIDGES. a. When all the property sought to be taken is not re- quired. The court instructs the jury that in order that the de- fendant may retain a portion of the property sought to be taken in this proceeding, it is not requisite that such part should be in actual use by the defendant, if it is necessary to the proper maintaining or securing of its bridge. If, therefore, the jury find from the evidence that a portion thereof, ten feet or less in width, on all sides of the defendant's guy-pier, is necessary to the proper main- taining of such guy-pier, and of the defendant's bridge, then, as to such portion, they shall find for the defendant, although the whole of said portion may not be occupied by the defendant's riprap. Bridge Co. \. Bridge Co., 34 W. Va. 188. 152 CONSPIRACY. CHAPTER 17. CONSPIRACY. a. Conspiracy defined. b. What necessary to constitute the offense. c. Acts done in pursuance of. d. Same Burden of proof. e. Person charged with, may be convicted of assault and battery. a. Conspiracy defined. The court instructs the jury that a conspiracy is a cor- rupt agreement previously entered into between two or more persons to do by concerted action something unlaw- ful or to accomplish some criminal or unlawful purpose or to accomplish some purpose not unlawful in itself but by unlawful means. State v. Bingham. 42 W. Va. 234. b. What necessary to constitute the offense. The court instructs the jury that before they can find the prisoner guilty of the offense charged in the indict- ment in this case, that they must be satisfied beyond all reasonable doubt that the said - - conspired and combined with - - and - (who are indicted jointly with him), or either of them, to inflict punishment and bodily injury on the said - , and that in pur- suance of said conspiracy and combination the said - did inflict punishment and bodily injury upon the body of said - , and that unless you shall believe from all the evidence beyond all reasonable doubt that such conspiracy and combination existed between the said , - - and - , or any two of them, being one, to inflict such punishment and bodily CONSPIRACY. 153 injury, you should find the prisoner - , not guilty. State v. Bingham, 42 W. Va. 234. c. Same Acts done in pursuance of. The court instructs the jury that if they believe from the evidence that the prisoner, , in pursuance of an understanding and combination between himself and - and - , or either of them, "assaulted - in the night time, on the street, in the city of - , in this county, for the purpose of whipping him or doing him an injury, and did then and there inflict any punishment or bodily injury upon said - , and the said - and - , or either of them, were present when the as- sault was so made and injury inflicted by said - , and that they, or either of them, aided or abetted said - in said assault, either by word or action, then they must find the prisoner guilty as charged in the indictment. State v. Bingham, 42 W. Va. 235. d. Same Burden of proof. The court instructs the jury that if they believe from the evidence that the prisoner assaulted and beat - , and inflicted upon him injury, in this county, on or about the night of - , - , and that - and - were present when said assault was so made by said - upon said - , and that they aided and abetted said - - in said assault and battery, either by prevent- ing others from interfering to prevent or stop said assault, or by assisting in administering punishment to said - themselves, then they must presume that said as- sault was made and such injury inflicted in pursuance of a combination and conspiracy between said prisoner and - and - ; and the burden of proving that such combination and conspiracy did not exist, and that such assault was not made and such injury inflicted in pursu- 154 CONTRACTS. t ance thereof, is upon the prisoner, and unless he shows by clc;ir and satisfactory proof that such combination and conspiracy did not exist, or it appears from the whole evidence and circumstances of the case, then they must find the prisoner guilty. State v. B'nujhntn, 42 W. Va. 235. e. Person charged with conspiracy may be convicted of assault and battery. The court instructs the jury that although they may find the prisoner, , not guilty of the offense charged in said indictment, if they shall not be satisfied or have a reasonable doubt as to the existence of a conspiracy and combination to do the acts charged therein, yet you may find them guilty of assault and battery if you think that the evidence in the case shall warrant such verdict. State v. Bingham, 42 W. Va. 234. CHAPTER 18. CONTRACTS. 1. WRITTEN CONTRACTS INTERPRETATION OF ACQUI- ESCENCE IN. 2. MODIFICATION OF CONTRACTS. 3. SEPARATE AND DISTINCT CONTRACTS. 1. WRITTEN CONTRACTS INTERPRETATION OF ACQUI- ESCENCE IN. a. Written agreement exclusive evidence of contract. b. Contracts by correspondence construed. c. Same Acceptance of Modification of Agency. d. Same Dates from acceptance of. CONTRACTS. 155 e. What the parties to contract must account for. f. Accounts as evidence Effect of When complete. g. Statements of accounts Opportunity to discover errors. h. Same Burden of proof, i. Additional claims procured through third parties. j. Contract effecting compromise Acceptance of. k. Same New contract Breach of. 1. Contract of employment Interpretation of and ac- quiescence in. m. Same When acquiescence inferred. n. Contract releasing damages Understanding of. o. Building and construction contracts Contracts with penalties attached. p. Same. q. Same Burden of proof. r. Delay in obtaining material Burden of proof. s. Same Plans of manufactured material. t. Same As to when delayed material needed. u. Occupying intervals with other parts of work. v. Contract for sawing timber Delays in. w. Same Failure to procure help Duty to procure help. x. Commissions for selling lands Terms agreed upon. y. Same What necessary to support contract. z. Same Failure to complete contract Party re- sponsible for. zl. Revocation of contracts Bona fide purchasers. z2. Commissions on goods not sold and returned. z3. Ambiguous contracts Intention of parties. a. Written agreement exclusive evidence of contract. The court instructs the jury that when parties have made a written agreement, the writing is regarded as the exclusive evidence of the contract, and all oral negotia- 150 CONTRACTS. tions and stipulations preceding or accompanying the execution of the written agreement are merged in it, and are not admissible in evidence, and all such oral negotia- tions and stipulations should not be considered by you to contradict or vary the written policy in this case. Man- pin v. Insurance Co., 53 W. Va. 566. The court instructs the jury that if they believe from the evidence that, on the day of - , 18 , plaintiff and defendant entered upon a negotiation for the sale and assignment of the bond from A. to B., offered in evidence in this case, and that the result of said negotiation was the written agreement upon the back of said bond, signed by the plaintiff and defendant, then the legal effect of said written agreement is that if said bond was due and unpaid at the time of said agreement, the plaintiff took upon himself the risk of collecting said bond and the terms of said written agreement cannot be changed or altered by parol evidence. Houston v. McNeer, 40 W. Ya. 368. b. Contract by correspondence construed. The court instructs the jury that if they believe from the evidence that the plaintiff made a contract with the defendant, and that such contract is expressed in letters, or in several writings, and a printed circular, and is the only contract between them, then the contract between the plaintiff and the defendant is a contract in writing, and the parties are bound by the terms of the written contract. Shreicsbury v. Tufts, 41 W. Va. 216. c. Same Acceptance Modification Agency. The court instructs the jury that if they believe from the evidence that the plaintiff became an agent for the defendant under a contract ; and that the only contract be- tween the plaintiff and defendant is expressed in letters CONTRACTS. 157 from the defendant to the plaintiff bearing date on the and days of - , enclosing a printed cir- cular mentioned therein, and the letters from plaintiff to defendant bearing date and - , of - , and if the jury further believe from the evidence that the plaintiff, by a letter dated the - - day of - , ac- cepted the terms proposed to him by the defendant, as shown by the letters and circulars as aforesaid, without anything other or further in relation thereto between them, then such letters and circulars constitute the con- tract between the plaintiff and the defendant; and the parties are bound by the terms thereof, except so far as the same may have been subsequently modified by mu- tual agreement of the plaintiff and of the defendant, if, from the evidence, the jury believe that any such modifi- cation was subsequently made. Shrewsbury v. Tufts, 41 W. Va. 217. d. Same Dates from acceptance of. The court instructs the jury that if they believe from the evidence that the contract between the plaintiff and the defendant consisted of the letters and the circular mentioned, then such contract was a contract in writing, and it bears date from the acceptance by the plaintiff of the terms proposed by the defendant, in the year - . Shrewsbury v. Tufts, 41 W. Va. 217. e. What parties to contract must account for. The court instructs the jury that the defendant must account to the plaintiff for all compensation and amounts of money which the defendant admits or shows by his accounts in evidence to be properly credited to the plain- tiff, and the defendant is entitled to be credited with such' amounts as are proper to be deducted under the contract 158 CONTRACTS. and arrangements between the plaintiff and the defend- ant. Shrewsbury v. Tufts, 41 W. Va. 217. f. Account as evidence Effect of. The court instructs the jury that the counsel for the plaintiff has agreed that the accounts offered by the de- fendant in evidence, and taken from his books, shall have the same effect as though the books themselves had been duly proved and produced in court; but, unless the jury believe from the evidence that the books from which said accounts were taken were books of original entry, then the same are not evidence in favor of the defendant on this trial. Shrewsbury v. Tufts, 41 W. Va. 217. g. Statement of accounts Opportunity to discover er- rors. The court instructs the jury that if they believe from the evidence that there was an account stated between the parties, then the effect of such account stated is to cast the burden of proof upon the party complaining to show fraud, error, or mistake, and after a reasonable time an account rendered and not objected to, becomes admitted as correct; and if you believe from the evidence that the defendant rendered the plaintiff a statement of his account with the defendant at, or about the close of each year, during the time the plaintiff was in the defendant's employ, and afterwards, and that the plaintiff had op- portunity, by the exercise of reasonable care and diligence, to discover any alleged error in the same, then, as to all the items of alleged error in such accounts stated, and not within a reasonable time thereafter specifically called to the attention of the defendant by the plaintiff, he is concluded and estopped, and, as to all such items charged in the plaintiff's account, you must find for the defendant. Shrewsbury v. Tufts. 41 W. Va. 218. CONTRACTS. 159 h. Same Burden of proof. The court instructs the jury that the burden of proof is on the plaintiff to make out his case by a preponderance of the evidence. In this case the plaintiff's claim, accord- ing to his bill of particulars, is for commissions alleged to have been retained improperly, and not paid to him, as shown by statements of account rendered and filed with said bill of particulars; and the jury are instructed that the burden is on the plaintiff to show, by a preponderance of the evidence, that the items referred to in such state- ments of accounts, and charged in his bill of particulars, are not lawful charges against the plaintiff; otherwise he is not entitled to recover in this action, and you must find for the defendant. Shrewsbury v. Tufts, 41 W. Va. 218. i. Additional claims procured through efforts of third parties. The court instructs the jury that if they believe from the evidence that the claims upon which compensation is sought to be recovered in this action, were procured for the defendant by the plaintiff under the contract between the plaintiff and defendant, and the defendant and claimants, which are in evidence in this cause, then the plaintiff is entitled to recover his proper compensation upon the amounts so recovered by the defendant upon such items of account as were placed in the hands of the defendant by the plaintiff, as aforesaid, even although they shall further find from the evidence that after such pro- curement there were other items added to the said claims through the efforts or by the influence of persons other than the plaintiff. Logie v. Black, 24 W. Va. 12. j. Contract effecting compromise Acceptance of. The court instructs the jury that if they believe from the evidence that the parties to this action compromised 160 CONTRACTS. their differences as set forth in plaintiff's declaration, and that the writing of - , - , marked exhibit - , was signed by the plaintiff after being prepared and writ- ten by the defendant's agent and that said writing em- bodied the actual terms of such compromise and was accepted and acted upon by defendant, then the defendant is bound by the provisions of said compromise. Rhoades v. Railway Co., 49 W. Va. 501. k. Same New Contract Breach of. The court instructs the jury that if they believe from the evidence that the writing of May, 18 , marked exhibit , purporting to be signed by plaintiff, was in fact signed by him and the stipulations and conditions therein contained were different from the propositions made in writing by him on April. 18 , exhibit No. - , the jury should take the last writing of May, 18 , as embodying the terms upon which the parties finally agreed to compro- mise; and if the jury further believe from the evidence that the defendant had given the plaintiff work, as it had agreed to do and the plaintiff failed to work to the satis- faction of his foreman or superintendent as provided in said agreement then the defendant had the right to dis- charge the plaintiff, and it would not be liable for any damages in this suit. Rhoades v. Railway Co., 49 W. Va. 501. 1. Contracts of employment Intepretation of and ac- quiescence in. The court instructs the jury that if they believe from the evidence that, after the contract of employment was entered into between the plaintiff and defendant, defend- ant so interpreted the same as entitled him to charge against the plaintiff the cost and expenses of collecting the cash payments on goods sold by the plaintiff, includ- CONTRACTS. 161 ing the amounts retained by attorneys for collections made, and that plaintiff had notice thereof, by the state- ments of his accounts or otherwise, and did not, within a reasonable time after such notice was first given to him, object to such interpretation by the defendant, but, by silence, acquiesced therein, and afterwards continued to act under such contract and to take the benefits thereof, then the plaintiff was estopped and concluded from placing a different construction on said contract, no matter if he did afterwards, and later on, make objection to such interpretation by the defendant. Shrewsbury v. Tufts, 41 W. Va. 220. m. Same Acquiescence inferred. The court instructs the jury that if they believe from the evidence that the plaintiff received, from time to time, from the defendant, statements of his account with the defendant, and was thereby afforded the opportunity to see the items in his bill of particulars mentioned, charged against him, and remained silent, and did not object to the charge of such items against him within a reasonable time after each of such statements were so rendered, then the defendant had the right to infer acquiescence of the plaintiff in the correctness of such charges, and the plain- tiff is now estopped to deny the correctness of all such items to which he did not object in proper time; and, as to all such items of the plaintiff's account, you must find for the defendant. Shrewsbury v. Tufts, 41 W. Va. 219. n. Contract releasing damages Understanding of. The court instructs the jury that if they believe from the evidence that the said plaintiff executed the paper in- troduced in evidence dated - , 18 , by placing his mark thereto, and if they further believe that the said plaintiff did not understand the contents of the said 162 CONTRACTS. paper, and could not read the same because he did not understand the English language, and if they further be- lieve that nothing was done by any person connected with the defendant company or with the relief association to prevent the said plaintiff from having the said paper translated to him, or from otherwise becoming acquainted . with the contents of the same,-then it was the duty of the said plaintiff to take proper precautions himself, and of his own motion, to have such paper translated or ex- plained to him ; and if he chose to sign the same without taking such precautions, he did so at his own peril, and must take the consequences, and be bound by the paper, unless the jury believe he was induced to place his mark on said paper by misrepresentations fraudulently made. Unfried v. Railroad Co., 34 W. Va. 268. o. Building and construction contracts Contracts with penalties attached Delay in completing work. The court instructs the jury that if they believe from the evidence that the whole or any part of the delay in the completion of the work provided for in the written contract which has been introduced in evidence, was due altogether to the acts or defaults of the defendant in failing to comply with the provisions of the agreement which were to be complied with upon its part, then the plaintiff is not chargeable under the provisions of the agreement with the delay so caused, and the jury, if it should find from the evidence that the plaintiff is en- titled to credit for an unpaid portion of the contract price, should not charge against the plaintiff or deduct from the amount of the contract price due under the con- tract, any amount either at the rate of fifty dollars per day or at any other rate by reason of such delays due to the acts, omissions or neglect of the defendant. Wheeling M. d- F. Co. v. Wheeling 8. CRIMINAL LAW. considering the case the jury are not bound to go beyond the evidence to hunt up doubts nor must they entertain such doubts as are merely chimerical or conjectural. A doubt to justify an acquittal must be reasonable and must arise from a candid and impartial investigation of all the evidence in the case, and unless it is such that were the same kind of doubt interposed in a graver transaction of life it would cause a reasonable and prudent man to hesi- tate and pause it is insufficient to authorize a verdict of not guilty. If after considering all the evidence the jury can say the}' have an abiding conviction of the truth of the charge they are satisfied beyond a reasonable doubt. State v. Bickle, 53 W. Va. 599. j. Same Doubt produced by undue sensibility Oath of juror What imposed upon him by Juror's duty to the state and to himself. The court instructs the jury that a doubt produced by undue sensibility in the mind of the juror in view of the consequences of his verdict is not a reasonable doubt and the juror is not allowed to create sources of material for doubt by resorting to trivial or fanciful suppositions and remote conjectures as to a possible state of facts differing from that established by the evidence. The oath of a juror imposes upon him no obligation to doubt where no doubt would exist if no oath had been administered. When a circumstance is of a doubtful character the accused is entitled to the benefit of the doubt. If, however, all the facts established necessarily lead the mind to the conclu- sion that the defendant is guilty though there be a bare possibility merely, not supported by some good reason therefor that he is innocent, the jury should find him guilty. A juror's duty to the state, to society and to himself is equally sacred to hold for conviction, if he has an abiding satisfaction of defendant's guilt, and if after CRIMINAL LAW. 177 deliberation, no juror is possessed of any good. reason to doubt the defendant's guilt, it is the duty of the jury to find him guilty. State v. Sickle, 53 W. Va. 599. k. Doubt as to identity of person accused. The court instructs the jury that after considering all the evidence introduced by the prosecution, and all the evidence introduced by the defense they entertain any reasonable doubt as to whether the defendant has been identified as the person who committed the offense charged in the indictment, then the jury are instructed that they find the defendant not guilty. State v. Lowry, 42 W. Va. 211. 3. CIRCUMSTANTIAL EVIDENCE. a. Character of circumstantial evidence necessary for conviction. b. What the circumstances should exclude to a moral certainty. a. Character of circumstantial evidence necessary for conviction Competency of circumstantial evidence. The court instructs the jury that one charged with crime may be convicted by a jury upon circumstantial evidence alone, if the jury believe beyond a reasonable doubt, from said circumstantial evidence, that the person so charged is guilty of the crime alleged against him. Therefore the court instructs the jury in this case that they have the right to convict the defendant upon circumstantial evidence alone, if the jury believe from said circumstantial evi- dence the guilt of the defendant beyond a reasonable doubt. And the court further instructs the jury that cir- cumstantial evidence in criminal cases is not only com- 178 CRIMINAL LAW. petent evidence, but is sometimes the only mode of proof, and therefore, if the jury believe from the evidence and circumstances in this case and beyond a rea- sonable doubt, that the defendant, with a deadly weapon, gave to the deceased a mortal wound, without any provocation, from which wound she died within a few days from the time it was so inflicted, that the said de- fendant was guilty of willful, deliberate and premeditated murder, unless he shows extenuating circumstances, or they appear by the case made by the state, and if he fail to show extenuating circumstances, and they do not ap- pear from the case made by the state and all the evidence considered, the jury should find him guilty of murder in the first degree. State v. Sheppard, 49 W. Ya. 607. b. What the circumstances should exclude to a moral certainty. The court instructs the jury that if the state relies for a conviction in this case upon evidence in whole or in part circumstantial, then it is essential that the circumstances should, to a moral certainty, actually exclude every hypothesis but the one proposed to be proved, and that unless they do, to a moral certainty, actually exclude every hypothesis but the one proposed to be proved, then they should find the prisoner not guilty. State v. Allen, 45 TV. Va. 76. 4. CHARACTER AND MOTIVE OF WITNESSES. a. Character and motive of witnesses. b. Testimony of accused Consideration of. c. Impeached witnesses Testimony of. a. Character and motive of witness. The court instructs the jury that in arriving at a ver- CRIMINAL LAW. 179 diet in this case that they are the sole judges of the facts, and credibility of each and every witness introduced in this case, and that they have the right to disregard the testimony of any witness or witnesses who, in the opinion of the jury, may have testified falsely in this case, or give to the testimony of any such witness such weight as in the opinion of the jury the same may be entitled to, and in ascertaining such weight the jury may take into con- sideration the character and motive of the witness as dis- closed by the evidence in this case. State v. Roberts, 50 W. Va. 428. b. Testimony of accused Consideration of. The court instructs the jury that in considering all the evidence in this case they may consider the evidence of the prisoner and how far, if at all, his interest in the case might bias his testimony, and that they give his evidence and all the other evidence in the case such weight as they may think it entitled to. State v. Dodds, 54 W. Va. 293. c. Impeached witness Consideration of testimony of. The court instructs the jury that they are not required by law to disbelieve a witness who has testified before them in this case because the general reputation of such witness for truth and veracity in the neighborhood where he resides has been proven to be bad, and said witness shown not to be entitled to credit when on oath, but it is the province of the jury to give the evidence of any wit- ness who has testified in this case such credit as the jury may believe from all the facts and circumstances in this case it is entitled to, the jury being the sole judges of the evidence as well as the credibility of the witnesses who have testified in this case. State v. Roberts, 50 W. Va. 426. CRIMINAL LAW. 5. CREDIBILITY OF WITNESSES WEIGHT OF EVIDENCE. a. What considered in determining Jury sole judges of. b. Same Reasonableness of statements of. c. Same Intelligence and conduct of witnesses. d. Same Witnesses testifying falsely. e. Same. a. What considered in determining Jury sole judges of evidence. The court instructs the jury that they are the sole judges of the evidence, and that they may believe or refuse to believe any witness, and that when passing upon the credibility of any witness they may rightly take into con- sideration his interest in the matter in controversy and his demeanor upon the witness stand. State v. Dickey, 48 W. Va. 326. b. Same Reasonableness of statements of. The court instructs the jury that they are the sole judges of the evidence and that they may believe or refuse to believe any witness and that when passing upon the credibility of any witness they may take into considera- tion his interest in the matter in controversy, the reason- ableness or unreasonableness of his statement, his bias or prejudice in the matter, if any appear, and his demeanor upon the witness stand. State v. Blckle, 53 W. Va. 600. c. Same Intelligence and conduct of witness. The court instructs the jury that they are the sole judges of the evidence in this case as well as the credibility of witnesses testifying before them, and in determining the weight to be given to the evidence of any witness who has testified they have the right to take and consider the CRIMINAL LAW. 181 intelligence of such witness, his conduct, appearance and demeanor while testifying, as well as the interest such witness may have in the result of the trial, and from all these, and all other facts and circumstances in the case, give the evidence of such witness such credit as the jury may believe it entitled to, the jury being the sole judges of the evidence and the weight thereof, as well as the credi- bility of the witnesses who testified in the case. State v. Roberts, 50 W. Va. 427. d. Same Testifying falsely Consideration of. The court instructs the jury that if they believe from the evidence that any witness who has testified in this case has knowingly and wilfully testified falsely to any material fact in this case, they may disregard the whole testimony of such witness, or they may give such weight to the_evidence of such witness on other points as they may think it entitled to. The jury are the exclusive judges of the weight of testimony. State v. Thompson, 21 W. Va. 746. e. Same. The court instructs the jury that they are the sole judges of the weight of testimony of any witness who has testified before them in this case, and in ascertaining such weight, they have the right to take into consideration the credibility of such witness, as disclosed from his evidence, his manner of testifying and demeanor upon the witness stand, and his apparent interest, if any, in the result of the case. And if the jury believe that any witness has testified falsely as to any material fact, they have the right to disregard all the testimony of such witness so testifying falsely, or to give his testimony, or any part thereof, such weight only as the same in their opinion, may be entitled to. State v. Staleij, 45 W. Va. 797. 182 CRIMINAL LAW. 6. INSANITY AND INTOXICATION MENTAL CAPACITY. a. Sanity presumed How presumption overcome. b. Necessity for proving insanity when relied on as defense. c. Same Fanciful grounds for believing person in- sane. d. Mental capacity for knowing consequence of act. e. Same. f. Same Mental aberration. g. Intoxication When evidence as to may be con- sidered. h. Same When intoxication does not excuse homi- cide. i. Age for capacity to commit crime. j. Same. a. Sanity presumed How presumption overcome. The court instructs the jury that every man is pre- sumed to be sane and to possess a sufficient degree of rea- son to be responsible for his crimes until the contrary is proved to their satisfaction ; that if the jury believe from the evidence that the prisoner fired the shot which caused the death of - , as charged in the indictment, and at the time of the firing of said shot, the prisoner was labor- ing under such defect of reason, from any disease or com- bination of diseases, of the mind, or remotely produced by previous habits of gross intemperance, as not to know the nature or possible consequences of his act, or if he did know, then that he did not know that what he was doing was wrong, they will find the prisoner not guilty. State v. Robinson, 20 W. Va. 728. b. Necessity for proving insanity relied on as defense. The court instructs the jury that to entitle the prisoner CRIMINAL LAW. 183 to an acquittal upon the ground that he was insane at the time of the commission of the offense charged in the in- dictment, such insanity must be proved to the satisfaction of the jury ; and in passing upon this question they may look at the whole evidence in the case, as well that for the state as for the prisoner. State v. Robinson, 20 W. Va. 744. c. Same Fanciful grounds for believing person insane How considered. The court instructs the jury that when insanity is re- lied on as a defense to a charge of crime, it must be proved to the satisfaction of the jury, in order to entitle the ac- cused to an acquittal on that ground. If upon the whole evidence the jury believe that the prisoner was insane, when he committed the deed, they will acquit him on that ground, but not on the fanciful ground, that, though they may believe he was then sane, yet, as there may be a rea- sonable doubt of such sanity, he is therefore entitled to an acquittal. State v. Maier, 36 W. Va. 770. d. Mental capacity for knowing consequence of act. The court instructs the jury that if they believe from the evidence beyond a reasonable doubt that the prisoner, at the time of firing the shot or shots which caused the death of - , was capable of knowing the nature and conse- quence of his act, and if he did not know, then that he knew he was doing wrong, and that so knowing he fired the shot or shots at the deceased with the willful, delib- erate and premeditated purpose of killing her, they will find the prisoner guilty of murder in the first degree. State v. Harrison, 36 W. Va. 740. e. Same. The court instructs the jury that if they believe from 184 CRIMINAL LAW. the evidence beyond a reasonable doubt, that the prisoner, though intoxicated at the time of the firing of the shot, \\iiirh caused the death of the deceased, was capable of knowing the nature and consequences of his act, and if he did know, then that he knew he was doing wrong, and that so knowing he fired the shot at the deceased with the willful, deliberate and premeditated purpose of killing him, they will find the prisoner guilty of murder in the first degree. State v. Robinson, 20 W. Va. 743. f. Same Mental aberration. The court instructs the jury that if they believe from the evidence that - - murdered - , as charged in the indictment, and had at the time sufficient power of mind to distinguish between the right and the wrong of such an act, although they may believe he suffered from mental aberration as to other matters, the verdict ought to be 'guilty." State v. Maier, 36 W. Va. 770. g. Intoxication When evidence as to is competent for consideration of jury. The court instructs the jury that where a statute estab- lishes degrees of the crime of murder, and provides that all willful, deliberate and premeditated killing shall be murder in the first degree, the evidence given on the trial tending to prove that the accused was intoxicated at the time of the killing, is competent for the consideration of the jury upon the question whether the accused was in such a condition of mind as to be capable of deliberation and premeditation. State v. Hcrtzog, 55 W. Va. 83. h. When intoxication does not excuse homicide. The court instructs the jury that if they believe from all the facts and circumstances in the case, that the prisoner wilfully, maliciously, deliberately and premedi CRIMINAL LAW. 185 tatedly killed the deceased, they should find him guilty of murder in the first degree, although he was intoxicated at the time of the killing. State v. Douglass, 28 W. Va. 301. i. Age for capacity to commit crime How determined. The court instructs the jury that to establish capacity to commit crime in a person over seven and under four- teen years, it is not necessary that any witness shall state that he has such capacity, but the same may be shown to exist by the appearance and general conduct of the accused, and by his testimony as a witness before the jury. State v. Williams, 40 W. Va. 269. j. Same. The court instructs the jury that a person is amenable to punishment for crime if he be of sufficient understand- ing to be able to distinguish right from wrong. State v. Williams, 40 W. Va. 269. 7. ALIBI. a. In general. b. Eeasonable doubt as to establishment of alibi. c. Failure of full proof of alibi. a. In general. The court instructs the jury that if they believe from the evidence that at the time the paper writing mentioned in the indictment was forged or uttered, or attempted to be employed as true, with the knowledge that said paper writing was false and forged, if at that time the defend- ant, - , was in - , Ky., as shown by the witness for the defendant, and was not present in - , - - county, W. Va., at the time the alleged offense was committed, 186 CRIMINAL LAW. t then the jury are instructed that they must acquit the de- fendant. State v. Lowry, 42 W. Va. 210. b. Reasonable doubt as to establishment of alibi. The court instructs the jury that if they entertain any reasonable doubt as to whether or not the defendant was in - , Ky., or - , in - - county, W. Va., at the time the offense charged was committed, then it is a rule of law inflexible in its operation, and the sworn duty of the jury, to give the benefit of such doubt to the defendant and to acquit him. State v. Lowry, 42 W. Va. 210. c. Failure of full proof of alibi. The court instructs the jury that if they should enter- tain a reasonable doubt as to the defendant's guilt, they should find him not guilty, although the jury might not be able to find that the alibi was fully proved. State v. Lowry, 42 W. Va. 211. 8. ADMISSIONS AND CONFESSIONS. a. What may be believed and what rejected. The court instructs the jury that where a confession is received in evidence, the jury may believe that which charges the prisoner, and reject that which is in his favor if they see sufficient grounds for so doing from the evi- dence in the case. State v. Allen, 45 W. Va. 75. 9. DEGREES OP PUNISHMENT. a. What verdicts permitted under indictment for murder Punishments imposed. The court instructs the jury that in the indictment in this case there is charged murder of the first degree, mur- der in the second degree, voluntary manslaughter, invol- DAMAGES. 187 untary manslaughter and assault and battery. Murder of the first degree is punished in this state by death or confinement in the penitentiary for life. Murder of the second degree is punished by confinement in the peniten- tiary not less than five nor more than eighteen years. Voluntary manslaughter is punished by confinement in the penitentiary not less than one nor more than five years. Involuntary manslaughter and assault and bat- tery are misdemeanors and punished by confinement in jail or by fine or both. State v. Dodds, 54 W. Va. 293. CHAPTER 22. DAMAGES. 1. GENERAL PRINCIPLES. 2. EXEMPLARY, PUNITIVE OR VINDICTIVE DAMAGES. 3. COMPENSATORY DAMAGES. 1. GENERAL PRINCIPLES. a. Defective machinery and appliances Duty of master as to. b. Same Knowledge of master as to. c. Safe means of transportation Duty of railroads to furnish employes with. d. Ejecting passengers from passenger trains. e. Ejecting persons from freight trains. f. Same Use of needless force in. g. Unlawful combinations Liability of persons act- ing under. h. Diversion of stream of surface water, i. Defective plumbing Injury to tenant caused by. 188 DAMAGES. j. Changing grade of streets Injury to property caused by. k. Injury to land leased for specific use. 1. Permanent injury to real estate by railroad com- pany. m. Delay in sawing timber. n. Injury to water mill by construction and use of boom. o. Mitigation of damages. a. Defective machinery and appliances Duty of master as to. The court instructs the jury that it is the duty of the master who sets a servant to work in a place of danger, or with dangerous machinery or appliances, to give him such notice and instructions as are reasonably required by the youth, inexperience or want of capacity of the servant; and failing to do so, the master is liable for the damage suffered through such failure. Giebell v. Collins Co., 54 W. Va. 525. b. Same Knowledge of master as to. The court instructs the jury that if they believe from all the evidence and circumstances that the defendant knew, or by the exercise of due care and caution could have known, that the said - was not of sufficient strength to bear the pressure necessary to be brought upon it in performing the work required to be done by the plaintiff, and further, that the same was not sufficient, then the defendant was guilty of negligence and liable to the plaintiff in damages, not exceeding the sum laid in the declaration, unless they further believe from all the evidence and circumstances, to their satisfaction, that the plaintiff also knew, or by the exercise of due care and caution could have known that the said was insuffi- DAMAGES. 189 cieiit to bear the pressure necessary, in the performance of the work aforesaid. Hoffman v. Dickinson, 31 W. Va. 150. c. Safe means of transportation Duty of railroad com- pany to furnish employes with. The court instructs the jury that it is the duty of a railroad company, when it furnishes transportation to its employes in cars from one point of its road to another, to provide a reasonably well constructed and safe track, to furnish well constructed and safe cars for the use of such employes, and to exercise continued supervision over the same, and keep them in good and safe repair and condi- tion; and if it fail to do so, and suffers its track or its cars from any cause to become dangerous and unsafe, and this condition is known to the company, or to any servant to whom it may have delegated the performance of these duties, or might have become known to it or to such servant by the exercise of reasonable care and diligence, and injury results to one of its servants, not having such delegated power, without fault on his part, while in the performance of his duty, the company is liable for dam- ages. Reese v. Railroad Co., 42 W. Va. 336. d. Ejecting passengers from passenger trains. The court instructs the jury that if they believe from the evidence in this case that the conductor, before he removed the plaintiff from the defendant's car, offered to carry the plaintiff from - - to , if the plaintiff would agree to afterwards pay him the fare required for his transportation, and that the plaintiff refused to accept said offer of said conductor, and thereupon he was ejected by said conductor from the train, that in such case, al- though the jury may believe that the plaintiff was wrong- fully removed from the defendant's car, yet the plaintiff 190 DAMAGES. can not recover punitive or exemplary damages, but can only award compensatory damages, if any, for so being put off the train. Moore v. Railroad Co., 41 W. Va. 179. e. Ejecting persons from freight trains. The court instructs the jury that if they believe from the evidence that the plaintiff got aboard of one of the - railroad's freight trains in the month of - , - , without any right or permission to do so from the de- fendant, or any of its employes, and was a trespasser thereon ; and if they further believe from the evidence that while the said plaintiff was on the said train he was kicked or forced therefrom by an order or command given by the conductor on said train, and while said train was in motion, and moving at a rate of speed rendering it unsafe or dangerous to eject the said plaintiff by force or violence therefrom; and if they further believe that said plaintiff was ejected by force or violence from said train by the order or command of the conductor thereof, and that, in consequence of being so ejected from said train, said plaintiff sustained any physical injuries, then the jury should find for the plaintiff and assess his damages at such sum as will be commensurate with such injuries, not exceeding, however, the sum sued for in this action. Landers v. Railroad Co., 46 W. Va. 497. f. Same Use of needless force in. The court instructs the jury that in the absence of proof to the contrary, the power or authority to eject any and all trespassers from the freight train upon which the plaintiff was attempting to ride, after the train had been signalled to leave the yard at - - by the conductor, and was in motion, and going , on the main track on its regular trip, and upon which said conductor had taken his position, belonging to the conductor thereof, as such DAMAGES. 191 conductor he could not exercise this power or authority so as to needlessly or wantonly to cause injury to another, even to a trespasser on his train; and if the jury believe from the evidence that such conductor did exercise such power or authority by commanding or ordering the said plaintiff to be kicked or forced from said train while the said train was going at such a rate of speed as to make it unsafe or dangerous to life or limb to thus eject said plaintiff from the said train, and if the jury further be- lieve from the evidence that said plaintiff was so forced or ejected from said train, and thereby and in consequence thereof, sustained personal and physical injury, the jury are authorized, under such circumstances, to find a ver- dict for the plaintiff, and to assess his damages at such sum as the evidence may justify. Landers v. Railroad Co., 46 W. Va. 498. g. Unlawful combinations Liability of persons acting under. The court instructs the jury that if they believe from the evidence that - , - , - , - , and - combined for an unlawful purpose, and in the execution of that purpose, as a consequence of that unlawful combina- tion, the plaintiff was arrested without probable cause, and imprisoned by any of the defendants, the law is for the plaintiff, with the plea of not guilty, and they must find for him such damages as they, in their discretion, may deem proper, not exceeding the amount laid in the writ. Bloss v. Plymale, 3 W. Ya. 399. h. Diversion of stream of surface water Encroachment of stream upon property of land owner. The court instructs the jury that in repairing, main- taining or replacing the bank of the run next his - , the defendant has no right to change or narrow the natur- 1<)2 DAMAGES. al course of the run so as to cause it to encroach upon the property of the plaintiff, or to wash away his ground ; and if the jury believe from the evidence that in maintain- ing, repairing or replacing said bank, he has so narrowed or changed the natural course of said run, he is liable for any damages thereby occasioned. Hargreavca v. Kimberly, 26 W. Va. 791. i. Defective plumbing Injury to tenant's property caused by. The court instructs the jury that if they believe from the evidence that the plaintiff was a tenant of the defend- ant, and that in consequence of the defective plumbing or want of repairs, or negligence of the defendant, the plaintiff suffered an injury to his property without any fault of his own, then the plaintiff is entitled to recover damages for the injury sustained in consequence thereof. Michaelson v. Cautley, 45 W. Va. 534. j. Changing grades of streets. The court instructs the jury that if they believe from the evidence that the plaintiff purchased the lot in the dec- laration mentioned and built his residence thereon, and that the lot abutted on the - - turnpike, and when so purchased and built upon, it was out of the limits of , but that the limits of - - were subsequently extended so as to include this lot, and that the defend- ant in improving - - street, formerly the - turn- pike, to the entire width thereof and close up to the line of the plaintiff's lot inflicted damage on the plaintiff, then it is immaterial whether the grade of the - - turn- juke on that portion of it which was graded at the time of the plaintiff's purchase of this lot, was materially al- tered or not, or whether it was widened out to or near the plaintiff's line at substantially the same grade, as existed on the graded portion of the - turnpike, as it had DAMAGES. 193 existed before, or whether this grade in this widening was changed, provided the change made in improving this street by the defendant was such as to interrupt the plaintiff in the possession and enjoyment of his property. For if this was the case, or the plaintiff was obstructed in his mode of ingress and egress to and from his prop- erty, he is entitled to recover such damages, as you may find from the evidence he has sustained by reason there- of, and it makes no difference whether the old grade of the - turnpike was changed or not, the question for the jury is 'Did what the defendant performed in improving this street damage the property of the plaintiff?' If so, he is entitled to recover. Hutchinson v. Par Jeer sburg, 25 W. Va. 238. k. Lease of land for specified use Risks assumed by lessor When lessee liable. The court instructs the jury that any person leasing property for a specified use, in the absence of an express covenant to the contrary, assumes the risk of the ordinary wear and tear of such property resulting from such use, and the said lessee is not liable for damages to said prop- erty resulting from such use, unless caused by his wrong- ful or neglectful act. Rogers v. Boom Co., 39 W. Va. 275. 1. Permanent injury to real estate by railroad company Depreciation in value caused by. The court instructs the jury that if they believe from the evidence that the property of the plaintiff has been permanently injured and its value depreciated by the laying and construction of the embankment and railroad track, and that the defendant constructed and laid, or had constructed and laid by its agents, the said embank- ment and track, then the plaintiff is entitled to recover for damages. Hast v. Railroad Co., 52 W. Va. 402. 1{)4 DAMAGES. m. Delay in sawing timber. The court instructs the jury that if they believe from the evidence that the plaintiff began the work of sawing the lumber and ties for the defendants under and by virtue of the contract read in evidence to the jury, bearing date , some time in the latter part of - , 19 , and that such mill had a capacity to saw from - - to - feet of lumber per day, and if the jury further be- lieve from the evidence that by steadily running said mill the plaintiff could have sawed all the lumber and ties charged by the plaintiff against the defendants specified in his bill of particulars or account, filed with his declara- tion in this cause on or before , 19 , except any un- avoidable accident occurring during that period, and if the jury further believe from the evidence that a failure to saw the lumber and ties for the defendants charged in said account during said period, occasioned the defend- ants any loss or damage as specified in their special plea filed in this cause, then the jury are instructed that they may ascertain from the evidence what such loss or dam- ages amount to and allow and assess them in favor of the defendants. Vale v. Suitor & Duribar, 58 W. Va. . n. Injury to water mill by construction and use of boom. The court instructs the jury that if by a fair preponder- ance of the evidence the plaintiff has proved that the de- fendant's boom has caused the water* to be slackened or deadened so as to cause sand or sediment to settle in the river below the plaintiff's mill, and that such settling of the sand or sediment has caused the injury complained of in the plaintiff's declaration, then the jury should find for the plaintiff such damages as he has sustained during the five years next preceding the institution of this suit. Pickens v. Boom Co., 58 W. Va. . o. Mitigation of damages. The court instructs the jury that if they believe from DAMAGES. 195 the evidence that plaintiff has negligently permitted gravel, mud, sand &c., to accumulate in the mill race at the mouth of the branch or at any other points, or that he has been guilty of any other negligent act whereby the supply of water to his mill has been diminished, such negligence can only be considered in fixing the amount of plaintiff's damages, and does not excuse defendant from performing its covenants of - , 18 . Hurxthall v. Boom Co., 53 W. Va. 101. (See, also, Vinal v. Care, 18 W. Va. 4.) II. EXEMPLARY, PUNITIVE OR VINDICTIVE DAMAGES. a. Sale of intoxicating liquors to minors Exemplary damages defined. b. Unlawful sale of intoxicating liquors to husband. c. Same. d. Physical and mental suffering Hazardous obstruc- tions near railroad track. e. Physical suffering Same. f. Physical and mental suffering Injuries sustained while attempting to board street car Inability to bear children. g. Same How damages estimated Contingent or speculative damages. h. Same Injuries caused by defective sidewalks Loss of time Expenses incurred Permanent injuries, i. Same, j. Same, k. Same Liability of owner of saw mill for injuries sustained by employe. 1. Same Displaced telephone wires Injuries caused by. m. Same Malicious prosecutions Injuries to feel- ings, person and character. 196 DAMAGES. n. Same False arrest Outrage, indignity and hu- miliation put upon party. o. Same Seduction of minor daughter Shame, loss of respect and mortification of parent. p. Same Explosion of dynamite Injuries caused by. q. Same Assault and battery. a. Sale of intoxicating liquors to minor Exemplary damages defined. The court instructs the jury that if they believe from the preponderance of the evidence that the plaintiff is the mother of - , that he is a minor, and that the defend- ant, by himself or his clerk, or any one acting under his authority, unlawfully sold to the said - , on the - day of - , 18 , at the defendant's place of busi- ness, at - , in this county, intoxicating liquors, and that the said intoxicating liquors, in whole or in part, caused the intoxication of said - , and that by reason of such intoxication the plaintiff was injured, in person or means of support, in manner and form as in the decla- ration alleged, then the jury should find for the plaintiff, and assess in her favor such damages as the jury should find from the evidence she has sustained by reason of such intoxication, and also exemplary damages, but not ex- ceeding together - - dollars. By "exemplary dam- ages" is meant such damages as should be inflicted upon a wrongdoer as a warning to him and others to prevent a repitition or commission of similar wrongs. McMaster v. Dyer, 44 W. Va. 646. b. Unlawful sale of intoxicating liquors to husband. The court instructs the jury, that if the jury believe from the evidence that the plaintiff was injured in her means of support in consequence of the intoxication, habit- ual or otherwise, of her husband, caused in whole or in part by the unlawful selling or giving of intoxicating liq- DAMAGES. 197 uors to him by - , they shall find for the plaintiff for all damages sustained and for exemplary damages. Mayer v. Frobe, 40 W. Va. 246-258, overruling Pegram v. Stortz, 31 W. Va. 220. c. Same. The court instructs the jury that if they be- lieve from the evidence that sold or gave to the plaintiff's husband intoxicating liquors when they knew or had reason to believe such husband was a person in the habit of drinking to intoxication, such selling or giving was unlawful. And if they further believe that by reason of intoxication, in whole or in part, of said hus- band, resulting from such sale of intoxicating liquors, the said husband did not provide for and support the plaintiff, your verdict should be for the plaintiff for all damages sustained and for exemplary damages. Mayer v. Frobe, 40 W. Va, 246-258. d. Physical and mental suffering Hazardous obstruc- tions near railroad track. The court instructs the jury that if they find the de- fendant guilty, they are, in estimating the damage, at liberty to consider the health and condition of the plain- tiff before the injury complained of as compared with his present condition in consequence of said injuries, and whether said injury is, in its nature, permanent, and how far said injury is calculated to disable the plaintiff from engaging in those pursuits and employments for which in the absence of said injury he would have been qualified, and also the physical and mental suffering to which he was subjected or may be subjected by reason of said injuries, and to allow such damages as in the opinion of the jury will be a fair and just compensation for the injury which the plaintiff has sustained. Riley v. Railroad Co., 27 W. Va. 151. 198 DAMAGES. e Physical suffering Same. The court instructs the jury that if they find for the plaintiff they are, in estimating the damages, at liberty to consider the health and condition of the plaintiff before the injury as compared with his present condition in con- sequence of said injury; and also whether said injury was permanent in its nature, and how far it is calculated to disable the plaintiff from engaging in those pursuits and occupations which, in the absence of said injury, he would have been qualified, and also the physical suffering to which he was subjected by reason of said injury, and to allow such damages as, in the opinion of the jury, will be a fair and just pecuniary compensation for the injury which the plaintiff has sustained. The jury may include any losses that may occur in the future to the plaintiff, provided they are such as the jury believe from the evi- dence will actually result to the plaintiff as the proximate damages from the wrongful act complained of. Carrico v. Railway Co., 39 W. Va. 102. f. Physical and mental suffering Injuries sustained while attempting to board street car Inability to bear children. The court instructs the jury that if under the evidence they find the defendant guilty as in the declaration alleged, then in estimating the damage of the plaintiff they have the right to take into consideration the personal injuries inflicted upon the plaintiff in consequence of the defendant's wrongful acts, if any such injuries are proved, and the pain and suffering, both mental and physical, undergone by her in consequence of such injuries, if such pain and suffering have been proved, and if they further believe from the evidence that the said injuries are per- manent, and that they include an inability to have any child or children, these facts may also be included in their estimate, if they further believe from the evidence that DAMAGES. 199 such permanent injury, including such inability, resulted from such wrongful acts. Normile v. Traction Co., 57 W. Va. 132. g. Same How damages estimated Contingent or specu- lative damages. The court instructs the jury that if they believe from the evidence that the defendant's negligence was the cause of the injury, they will find for the plaintiff and in esti- mating damages will allow for pecuniary loss incurred by the plaintiff, as the result of such injury, and for her pain and suffering directly resulting from the injury. In estimating damages, they may also allow for future con- sequences, but can only allow for such future consequences as they believe from the evidence as are reasonably certain to be sustained by the plaintiff. The consequences which are contingent, speculative or merely possible are not to be considered in ascertaining the damages. Normile v. Traction Co., 57 W. Va. 132. h. Same Injuries caused by defective sidewalks Loss of time Expenses incurred Permanent injuries. The court instructs the jury that if they believe from the evidence that the plaintiff was injured as charged in his declaration, then the rule for the measurement of damages is substantially that the plaintiff's damages must be measured by the loss of time during the cure of such injury or injuries, and the expenses incurred in respect thereto, the pain and suffering undergone by the plaintiff, and any permanent injury, especially when it causes a disability for further exertion, in whole or in part, and consequent pecuniary loss. Bowen v. City of Huntington, 35 W. Va. 698. i. Same. The court instructs the jury that if they find for the o()0 DAMAGES. plaintiff, that then the plaintiff is entitled to recover all damages proved by him as caused by the alleged injury, and that in estimating his damages they will consider the evidence in relation to plaintiff's loss of time occasioned by his injury; also the evidence in relation to his pain and suffering resulting from such injury, and the evi- dence in relation to the extent and permancy of said injury. Phillips v. City of Huntington, 35 W. Va. 408. j. Same. The court instructs the jury that if they find for the plaintiff, the rule for measuring her damages in this case is substantially that the damages awarded her should compensate her for her loss of time brought about by such injury, and the expenses incurred in respect thereto, her pain and suffering consequent thereon, and any perman- ent injury, especially if it causes a disability for further exertion, either in whole or in part, and consequent pecuniary loss. Snoddy v. City of Huntington, 37 W. Va. 114. k. Same Liability of saw mill owner for injuries sus- tained by employe. The court instructs the jury that if they believe from the evidence that the plaintiff in his action is entitled to recover, he may recover the expenses of his cure, the value of his time lost during his cure, and a fair compensation for his physical and mental suffering caused by the injury as well as any permanent reduction of his power to earn money. Giebell v. Collins Co., 54 W. Va. 525. 1. Same Displaced telephone wire Injuries caused by. The court instructs the jury that if they find the issue for the plaintiff, in determining the measure of damages they may take into consideration the mental and physical pain and suffering endured by the plaintiff since he re- DAMAGES. 201 ceived the injury complained of, the character and extent of such injury, and its continuance if permanent, together with his loss of time, service and disability, if any, result- ing from said injury, to earn a livelihood for himself and family, and his necessary expense for medicine and medi- cal attention; and may find for him such sum as, in the judgment of the jury under the evidence, will be a fair compensation for the injury. Hannum v. Hill, 52 W. Va. 176. m. Same Malicious prosecutions Prosecutions without probable cause Malice express or implied. The court instructs the jury that although no actual damages may have been proven by the plaintiff as to actual attorney fees and expenses about his defense in the prosecution commenced or pursued against him by the defendant, and although he may have proven no actual damages for loss of time because of the prosecution against him, but of all this the jury are to judge from the evidence in the case, yet the jury may give such damages as they may think proper, for the injury to the plaintiff's feelings, person and character, by his detention in custody and prosecution, if they believe from the evidence that there was a prosecution commenced or pursued against him by the defendant and that said prosecution was insti- gated by the defendant without probable cause therefor, and with malice express or implied from the want of probable cause, and that the prosecution was conducted to its termination to the final discharge of the plaintiff, without proof as to the amount of such damages, and the jury may give such punitive or exemplary damages as they may think proper for the conduct of the defendant, if they believe from the evidence in the case that the said prosecution against the plaintiff was commenced or pur- sued for the private ends of the defendant, or if they be- lieve from the evidence that said prosecution was com- 202 DAMAGES. menced or pursued with reckless disregard of the rights of the plaintiff, and may assess such damages without proof as to the amount thereof, the amount not to exceed that laid in the declaration. Waldron v. Sperry, 53 W. Va. 122. n. Same False arrest Outrage, indignity and humilia- tion put upon party. The court instructs the jury that if they find the de- fendant guilty, they are, in estimating the plaintiff's dam- ages, at liberty to consider the expense and loss of time, if any, incurred by the plaintiff; also the bodily and mental pain and anguish resulting from the defendant's acts as proved; and for the outrage and indignity and humiliation put upon the plaintiff, to allow such damages as, in the opinion of the jury, will be a fair and just com- pensation for the injuries sustained, not exceeding the amount sued for herein. Gillingham v. Railroad Co., 35 W. Va. 602. o. Same Seduction of minor daughter Shame, loss of respect and mortification of parent. The court instructs the jury that if they believe from, the evidence that the plaintiff did sustain loss of services of his daughter, and that such loss of services was occa- sioned by the seduction and wrongful act of the defend- ant, then you may take into consideration the shame, loss of respect and mortified feeling of the plaintiff, and give such exemplary damages as you may believe the plaintiff entitled to. Riddle v. McGinnis, 22 W. Va. 262. p. Same Explosion of dynamite Injuries caused by. The court instructs the jury that if they find the issue for the plaintiff, in determining the measure of damages they may take into consideration the mental and physical pain and suffering endured by the plaintiff since he re- DAMAGES. 203 ceived the injury complained of, in consequence thereof, the character and extent of such injury, and its contin- uance, if permanent, together with his loss of time and service, and his disability, if any, resulting from said in- jury to earn a livelihood for himself and family, and his necessary expenses for medicine and medical attention; and may find for him such sum as, in the judgment of the jury under the evidence, will be a fair compensation for the injury, not to exceed the amount laid in the declara- tion. Schwartz \. Schull, 45 W. Va. 411. q. Assault and battery. The court instructs the jury that if they believe from the evidence that the defendant committed an assault and battery upon the plaintiff as alleged in the declaration, and that she is entitled to recover, then in determining the amount of damages they are authorized to take into consideration any physical injury, if any, caused thereby, as well as any physical suffering, if any, caused thereby, and all such punitive or exemplary damages as they may judge proper and just in the premises, if they find from the evidence that the assault and battery was wanton or willful. Stevens v. Friedman, 58 W. Va. . III. COMPENSATORY DAMAGES -- HOW ESTI- MATED AND FIXED. 1. AGAINST RAILROAD COMPANIES. 2. AGAINST MUNICIPAL CORPORATIONS. 3. AGAINST MASTER FOR INJURIES SUSTAINED BY SER- VANTS. 4. AGAINST LANDLORDS. 5. AGAINST STEAMBOAT COMPANIES. 6. AGAINST PERSONS TAKING PROPERTY WITHOUT OWNER'S CONSENT. 7. AGAINST BRIDGE COMPANIES. 204 DAMAGES. 8. AGAINST BOOM COMPANIES. 9. AGAINST PULP MILL OWNERS 1. AGAINST RAILROAD COMPANIES. a. Delay in shipping live stock. b. For killing live stock. c. For negligently causing death of parent. d. Same Prospective loss Approximate damages. e. For ejecting passenger from train. f. For dismissing employe. g. For injury to water mill by constructing embank- ments. h. Taking lands without owner's consent Future in- jury Permanent injury. i. Same Market value of property. j. Same What not to be considered. k. Uses to which land to be put. a. Delay in shipping live stock. The court instructs the jury that if they believe from the evidence that there was such unreasonable delay on the part of the defendant or its servants in transporting said cattle to the city of - , they should find for the plaintiff; and if they further believe from the evidence that the plaintiff was damaged by said delay, in assess- ing such damages they should take into consideration all damages naturally and proximately resulting from such delay. Bosley v. Railroad Co., 54 W. Va. 571. b. Killing live stock Market value of stock. The court instructs the jury that while the measure of damages is the value of the stock when killed, that such value is the market value of such stock, and not some peculiar or particular value attached to it by the plain- tiff. Bullington v. Railroad Co., 32 W. Va. 440. DAMAGES. 205 c. For negligently causing death of parent. The court instructs the jury that in estimating the pecuniary damages they may take into consideration the nurture, instruction and physical, moral and intellectual training which the children would have received from their father. Searles \. Railway Co., 32 W. Va. 374. d. Same Prospective damages Approximate damages. The court instructs the jury that while they must assess the damages with reference to the pecuniary injuries sus- tained by the distributees in consequence of the death of their father, they are not limited to the loss actually sus- tained at the precise period of his death, but may also in- clude prospective losses, provided they are such as the jury believe will actually result to the distributees as the proximate damages arising from the wrongful death. Searles v. Railway Co., 32 W. Va. 375. e. For ejecting passenger from train. The court instructs the jury that if they believe from the evidence that the conductor before he removed the plaintiff from the defendant's car, offered to carry the plaintiff from - to - , if the plaintiff would after- wards agree to pay him the fare required for his trans- portation, and that the plaintiff refused to accept said offer of said conductor, and thereupon he was ejected by said conductor from said train, that in such case, al- though the jury may believe that the plaintiff was wrong- fully removed from the defendant's car, yet the plaintiff cannot recover punitive or exemplary damages, but can only award compensatory damages, if any, for so being put off the train. Moore v. Railroad Co., 41 W. Va. 179. f . Dismissing employe Duty to seek other employment. The court instructs the jury that if a person is hired 206 DAMAGES. for service for a given term and is wrongfully dismissed, the law imposed upon him the duty to seek other employ- ment, and to the extent that he obtains it and earns wages, or might have done so, his damages are reduced. Qrover v. Railroad Co., 53 W. Va. 107. g. Injury to water mill by constructing embankments Burden of proof Nominal damages. The court instructs the jury that the burden is upon the plaintiff to prove to them the damages, if any, which he has suffered by reason of the alleged wrongful act of the defendant, and wherein and what such damages are; and if the plaintiff has failed to prove any damages, al- though he proves the wrongful act by the defendant where- by his water power was diminished, they can give only nominal damages. Watts v. Railroad Co., 39 W. Va. 208. h. Land taken without owners consent Future or pros- pective injury Permanent injury. The court instructs the jury that in determining this case the jury are not to take into consideration any future or prospective injury or damage that the plaintiff might sustain by reason of the railroad track or its use and operation to his said property, but they may take into consideration any permanent damages to, and the depre- ciation of the value of, his said property, by the laying and construction of said track. Fox v. Railroad Co., 34 W. Va. 478. i. Same Market value of property. The court instructs the jury that if they believe from the evidence, facts and circumstances before them in this proceeding that the land mentioned and described in the notice, application and commissioners' report herein sought to be taken in this proceeding, is within the cor- porate limits of the town of , and at the time of the DAMAGES. 207 i proposed taking thereof by the applicant, had a market value, then such market value, together with the view of the premises, would be the proper measure of compensa- tion to be allowed by the jury for the same. Railway Co. v. Buskirk, 57 W. Va. 417. j. Same What not to be considered. The court instructs the jury that in ascertaining what would be a just compensation to the defendant for the land proposed to be taken by the applicant, as set forth in the notice, application and commissioners' report in this proceeding, such general and intangible benefits as have accrued to this property in common with all other property in the community where it is situate, by reason of the proposed building of the - - railroad of its road into said community, cannot be deducted from its fair market value, if they find it has such value, at the time the same was proposed to be taken by said railroad com- pany. Railway Co. v. Buskirk, 57 W. Va. 417. k. Same Uses to which lands taken to be put. The court instructs the jury that in ascertaining the value of the land proposed to be taken by the - - rail- road company, they may properly enquire into its value by reason of its being , but in considering the market value of the land they must not consider the uses to which the - - railroad company had put, or may put this ground, in constructing this railroad. Railroad Co. v. Sheppard, 26 W. Va. 680. 2. AGAINST MUNICIPAL CORPORATIONS. a. Injuries caused by defective sidewalks. b. For changing grade of streets. c. Same. !_>( is DAMAGES. a. Injuries caused by defective sidewalks Aggravated damages. The court instructs the jury that if they believe from the evidence that the plaintiff was afflicted with a disease which existed at the time of the alleged injury, which disease was aggravated by such injury, that the plaintiff, on satisfactory proof of the existence of the defect in the sidewalk in the declaration mentioned, and that he was injured thereby, is entitled to full compensatory dam- ages. Botccn v. City of Huntington, 35 W. Va. 698. b. Injuries to property caused by changing grade of street "Just compensation" Definition of. The court instructs the jury that by the words "just compensation" used in the constitution, which shall be paid for private property damaged for public use, means that amount of money that will place the party in as good condition as she was before the injury was done, such a sum of money, the possession whereof will be equivalent to all the loss, injury and damage suffered by the party injured in consequence of the action of the defendant. Blair v. City of Charleston, 43 W. Va. 73. c. Same. The court instructs the jury that if they believe from the evidence that the city of - - has injured the property of the plaintiff without her consent having been first ob- tained, that it is your duty to ascertain and determine the extent of said injury, and by your verdict compensate her for said injury. Blair v. City of Charleston, 43 W. Va. 73. 3. AGAINST MASTER FOR INJURIES SUSTAINED BY SER- VANTS. a. Defective material Losses resulting to distributees. b. Dangerous machinery. DAMAGES. 209 a. Defective material Losses resulting to distributees Nurture and training of children. The court instructs the jury that if they find for the plaintiff the damages are not limited to the losses sus- tained at the precise period of - 's death, but may in- clude prospective losses provided they are such as the jury believe from the evidence will result to his distributees as the proximate damages arising from the wrongful death, and the jury may take into consideration in estimating the pecuniary injury, the nurture, instruction, physical, moral and intellectual training which the children would have received from their father, and as a whole assess such damages as in the opinion of the jury will be fair and just, not exceeding in amount, $ . Richards v. Iron Works, 56 W. Va. 519. b. Dangerous machinery Injuries caused by Duty of master to give notice and instructions as to. The court instructs the jury that it is the duty of the master who sets a servant to work in a place of danger or with dangerous machinery or appliances, to give such notice and instructions as are reasonably required by the youth, inexperience or want of capacity of the servant; and failing to do so, the master is liable for the damage suffered through such failure. Giebell v. Collins Co., 54 W. Va. 525. 4. AGAINST LANDLORDS. a. Defective plumbing Injury to tenant caused by Condition of property before and after injury. The court instructs the jury that if they find that the defendant is liable to the plaintiff, that the measure of damages for the injury done is that amount that will com- pensate and make the plaintiff whole, the difference in value of the property injured between that which was im- 210 DAMAGES. mediately before the injury done, and that afterwards. Michaelsonv. Cautley, 45 W. Va. 534. 5. AGAINST STEAMBOAT COMPANIES. a. Loss' of goods by sinking of barge Contract price of sale of goods the measure of damages. The court instructs the jury that if they believe from the evidence that the plaintiff had sold the salt, the loss of which is in controversy, at a stipulated contract price, then that price should be the measure of damages so far as the value of the salt may be concerned. Tompkins v. Kanawha Board, 21 W. Va. 232. 6. AGAINST PERSON FOB TAKING PROPERTY WITHOUT OWNER'S CONSENT. a. Possession of property taken Damages to owner for taking property without his consent. The court instructs the jury that if they believe from the evidence that the plaintiff purchased of the defendant, the property in the declaration mentioned, and that he paid him for the same, and that said property was de- livered to him, and afterwards came into the possession of the defendant, without the consent of the plaintiff, then the plaintiff is entitled to recover in this action so much damage as the jury may, from the evidence, be satisfied the plaintiff has sustained. Haines v. Cochran, 26 W. Va. 723. 7. AGAINST BRIDGE COMPANY. a. For injury to ferry franchise. b. Same Expenditure to be deducted. c. Same. DAMAGES. 211 a. Injury to ferry franchise Amount of travel and reve- nue from Inconveniences of the public. The court instructs the jury that in forming their judg- ment of the damage to the said franchise of the plaintiff, when run within the limits authorized by the county court of , and from landing which the plaintiff has the legal right to use, they are at liberty to consider, as evidence, such revenues as tend to show the amount of travel seek- ing passage across the river at that point, and the value of such travel to one holding the exclusive privilege to charge for transporting the same over the river by means of a ferry located as provided in the order of the county court; and on the other hand they are at liberty to con- sider the peculiar risk, disadvantages and inconveniences to the public, if any, from the location of the landings within the limits of the order of the county court as tend- ing to affect or diminish the said travel, or the value of the same, to the said ferry-franchise so located. Mason v. Bridge Co., 20 W. Va. 233. b. Same Expenditures to be deducted Unsuitable grades for ferry landing. The court instructs the jury that although they may find from the evidence that at the mouth of grade and - - road the condition of the river and bank is not at present suitable for a safe and convenient landing for the ferry of plaintiff, yet if they further find that said place, or within fifty yards thereof, and upon land owned or contracted for by the plaintiff can be made a safe and convenient landing by the expenditure of a certain amount of money, they must find for the plaintiff such damages as they may ascertain his ferry-franchise has sus- tained by reason of the erection and use by the public of the bridge of the defendant, to be credited by the cost of rendering said river and banks convenient and safe for the use of the ferry. Mason v. Bridge Co., 20 W. Va. 236. 212 DAMAGES. c. Same. The court instructs the jury that if they believe from the evidence that the plaintiff has established a ferry over the - - river at the points and between the limits pre- scribed in the order of the county court of - - granting such license to said plaintiff to establish such ferry, and that said plaintiff owns or has contracted for the use of landings on both sides of the river within the limits pre- scribed in said order of the county court, then, even if they find that said plaintiff may have to expend further sums to make a proper channel for his boat across the river and suitable landings for his ferry boats on either side of the river on said land so owned or contracted for by him, they will only deduct such necessary expendi- tures from the amount assessed as damages to plaintiff's franchise by the erection and opening of defendant's bridge. Mason v. Bridge Co., 20 W. Va. 237. 8. AGAINST BOOM COMPANIES. a. Slackening water power by causing sediment in stream Rental value of property damaged Statute of limitations. The court instructs the jury that if they believe from the evidence that, during the five years next preceding the institution of this suit, the erection, location or opera- tion of said boom caused sand or sediment to settle in - river below the plaintiff's mill, and that such settling of the sand or sediment had the effect to reduce the power of the fall and dam at plaintiff's mill, and that by reason thereof the said mill was prevented from running during any part of said five years next preceding the institution of this suit, then the jury should find for the plaintiff such damages as he has sustained by reason of the stop- ping of the mill for said cause, and such damages should be a sum equivalent to the rental value of said mill for DEEDS. 213 the time, if any, that the mill was stopped by reason of said reduction of said power. Pickens v. Boom Co., 58 W. Va. . 9. AGAINST PULP MILL OWNERS. a. Injury to water mill by construction of dams and gates. The court instructs the jury that if they believe from the evidence that the defendant has, in the manner alleged in the declaration, unlawfully injured the property of the plaintiff, and that such damage and injury are of a perma- nent character, and affects the value of plintiff's property, then they will find for the plaintiff a sufficient amount as will be a full compensation for such permanent injury. Miller v. Pulp Co., 38 W. Va. 560. [NOTE. In addition to the foregoing, instructions em- bodying general principles relating to damages will be found under appropriate subjects, and in rare instances, in order to avoid disconnection of subject matter, instruc- tions here given, are repeated.] CHAPTER 23. DEEDS. a. Compentency to execute deeds Mental capacity. b. Defective acknowledgments of married women. a. Competency to execute deeds Mental capacity In- tentions of grantor. The court instructs the jury that the declarations made by prior to his last sickness in regard to his inten- 214 DEEDS. tion to make disposition of a portion of his lands are to be considered by the jury, as bearing upon his capacity to make the deed of , , at the time of its execution. In other words, these declarations are not admitted to show that a continuing and contemplated purpose was then executed, but only to show, if the jury so find from the evidence in the case, that when the deed was executed, he had mental capacity to recollect a former intention, re- adopt and approve it, and carry it into effect. The jury is also instructed that these declarations of his purpose must not be received as conclusive of the question, whether they may, or may not, have been retracted or abandoned. This is a question for the jury to determine from the evidence. Dingess v. Branson, 14 W. Va. 104. See also Jarrett v. Jarrett, 11 W. Va, 626. b. Defective acknowledgments of married women. The court instructs the jury that the deed executed by - to - , bearing date - , offered in evidence, and purporting to be also signed by - , and purporting to be also acknowledged by - , wife of the said - , is a good deed for the purpose of conveying the interest of - in the land therein mentioned. And the court also instructs the jury that if they believe from the evidence that the said - , at the time of the execution and acknowledgement of said deed, was the wife of the said , then the said deed is not valid, so far as it purports to be her deed, and does not convey any interest she may have had in said land, and cannot operate against her or her grantees by way of estoppel. Laidley v. Land Co., 30 W. Va. 509. [NOTE. This was under the statute requiring privy ex- aminations of married women in acknowledgment of deeds.] DETINUE DRUGS AND DRUGGISTS. 215 CHAPTER 24. DETINUE. a. Title to property. b. Preponderance of evidence. a. Title to property. The court instructs the jury that if they believe from the evidence that the title to the property was in (another than plaintiff) at the time he delivered the same to the defendant, they must find for the defendant. Davis v. Well, 46 W. Va. 9. b. Preponderance of evidence. The court instructs the jury that in order to recover, the plaintiff must have a preponderance of testimony. Davis v. Wei 6, 46 W. Va. 9. CHAPTER 25. DRUGS AND DRUGGISTS. a. Negligent sale of How sale may take place In- jury resulting from. b. What druggist's license not required for sale of. c. Proximate cause of injury Definition of. d. Contributory negligence Definition of. a. Negligent sale of drugs How sale may take place Injury resulting from. The court instructs the jury that in law a sale may take place without payment of money, and that if they 216 DRUGS AND DRUGGISTS. believe from the evidence that the salts in question was sent for by - - and at his request through his agent, and that the salt petre was sold to - , the agent of the plaintiff, by the defendants, when he demanded of them salts, and that they received payment therefor, that then it is immaterial whether the plaintiff ever paid - , his agent, for them or not, so far as this enquiry is con- cerned. Peters v. Johnson & Jackson, 50 W. Va. 652. b. What druggists' license not required for sale of. The court instructs the jury that - - is not one of the poisons or drugs included in either schedule U A" or schedule "B" of section IX of chapter 150 of the Code of West Virginia; and that there is no law prohibiting the defendants from keeping, exposing for sale and selling the same, without having license as druggists or pharma- cists Peters v. Johnson <& Jackson, 50 W. Va. 652. c. Proximate cause of injury Definition of. The jury are further instructed that the proximate cause of an injury is the last negligent act contributing thereto, and without which such injury would not have resulted; and if the jury believe from the evidence in this case that the last negligent act contributing to the injury complained of and without which the said injury would not have resulted, was the act of the plaintiff, then, the plaintiff cannot recover, and the jury must find a verdict for the defendants. Peters v. Johnson & Jackson, 50 W. Va. 652. d. Contributory negligence Definition of. The jury are further instructed that it is a settled rule of the common law that for injuries negligently inflicted upon one person by another there can be no recovery of damages if the injured person by his own negligence proximately contributed to the injury. Contributory DURESS. 217 negligence is a want of ordinary care upon the part of a person injured by the actionable negligence of another, and contributing to the injury as a proximate cause there- of without which the injury would not have occurred. If the jury believe from the evidence that the plaintiff was guilty of contributory negligence in not using ordinary care in the taking of the drug, \vhich he took by mistake for salts, then he is not entitled to recover from the de- fendants, even though the said - - were guilty of negligence in selling him the said drug, and though they believe that said - - did sell him the said drug, and the jury should find for the defendants. Peters v. John- son v. Jackson, 50 W. Va. 652. CHAPTER 26. DURESS. a. Excessive rates Offsets Recovery of excessive rates paid under duress. b. Same Duress defined. a. Excessive rates Off-sets Recovery of excessive rates paid under duress. The court instructs the jury that if they believe from the evidence that the - railroad company was an in- corporated company, and its road did not exceed - miles in length, and that said road was operated by steam power at the respective dates of the items charged in the defendant's specifications of offsets filed in this cause, then the legal rates of transportation of - - over the line of said road was not exceeding - - cents per ton per mile, and the defendant is entitled to recover any excess over the said rate paid for the transportation of 218 DURESS. the - - in the said specifications of off-sets mentioned over the line of said road by the defendant to the plain- tiff, if such payments were made under duress and not voluntarily. Transportation Co. v. Sweetzer, 25 W. Va. 439. b. Same Duress defined. The court instructs the jury that if they believe from the evidence that the defendant voluntarily made the pay- ment in his accounts of sets-off mentioned, with full knowledge, or means of knowledge, of all the facts relat- ing thereto, and without duress of his person or goods, then he cannot recover on his said sets-off; that duress is any improper means brought to bear upon a party where- by he is not a free agent, and if the jury believe that the defendant was placed in such a condition by the plain- tiff that he could not get his goods to market, or get them out of the plaintiff's possession without paying for freight thereon at a rate exceeding - - cents per ton per mile over the line of the said railroad company, then that con- stituted such duress of goods as would entitle the de- fendant to recover upon his said sets-off, provided the jury believe from all the evidence that the plaintiff did charge the defendant for said transportation a rate ex- ceeding - - cents per ton per mile as charged in said sets-off, and that the plaintiff was operating by steam power the said - - railroad, and that said railroad does not exceed - - miles in length. Transportation Co. v. Sweetzer, 25 W. Va. 440. EJECTMENT. 219 CHAPTER 27. EJECTMENT. a. Strength of title Plaintiff must recover on strength of his own title. b. Defeat of plaintiff's claim by showing title in an- other. c. Identity of land Necessity for establishing. d. Source of title Conflicting titles arising from same source Priorty of recordation of deeds. e. Superior title to, and adverse possession of a por- tion of the land. f. Color of title Character of deed which gives color of title. g. Same Not necessary that evidence of be in writing, h. Quantity of land Not necessary to be considered when conveyance is made by metes and bounds, i. Boundary lines Marked lines and ancient fences as elements of proof, j. Same Natural boundaries, k. Defective acknowledgments of married women. 1. Life estate Termination of Eight of way Statute of limitations, m. Taxes Duty of land owner to have lands assessed for. n. Same How coterminous tracts belonging to same person may be assessed, o. Forfeiture How deemed in law. p. Equity of redemption Purchase of land forfeited by creditor, q. Same Defeat of tax-purchaser's title Payment of taxes by creditor. 220 EJECTMENT. a. Strength of title Plaintiff must recover on the strength of his own title. The court instructs the jury that the plaintiff, in an action of ejectment, must recover upon the strength of his own title, and not upon the weakness of defendant's title. Coal Co. v. Hoicell, 36 W. Va. 509. b. Defeat of plaintiffs claim by showing title in another. The court instructs the jury that in a trial of an action of ejectment it is not necessary for the defendant to show that he has any title to the land in controversy, but can defeat the plaintiff's claim by showing a title to the land in controversy in some other person than the plaintiff. Robinson v. Loice, 56 W. Va. 311. c. Identity of land Necessity for establishing. The court instructs the jury that before plaintiff can recover, he must prove the identity of the land claimed by him and if the identity of the land is not proved by the plaintiff to the satisfaction of the jury, they must find for the defendant. Coal Co. v. Howell, 36 W. Va. 509. d. Source of title Conflicting titles arising from same source Priority of recordation of deeds. The court instructs the jury that if they believe from the evidence that the deed from A to B, under which the defendant claims, covers the land in controversy, and if they further believe from the evidence that the deed from A to C, under which the plaintiff claims, also covers the land in controversy, and if they further believe from the evidence that the deed to C was first admitted to record in the proper office for recording said deeds, then the said deed from A to C vested in said C a valid title to said land in controversy unless the jury believe from the evidence that the said C had notice that the said deed to B, which is older in date than the deed to C, covered the land in con- EJECTMENT. 221 troversy and that B claimed title thereto. Congrove v. Bnrdctt, 28 W. Va. 222. e. Superior title to, and adverse possession of a portion of the land. The court instructs the jury that if they believe from the evidence that the defendant, and those under whom he claims, entered upon and took possession of any part of the land in controversy, claiming under color or claim of title by deed or other writing, then the defendant, and those under whom he claims, thereby acquired adversary possession of such land to the extent of the boundaries embraced by such deed or other writing, unless the jury believe from the evidence that the plaintiff or those un- der whom he claims, had the better title and had actual adverse possession of the part of the land embraced by the deed or other writing under which the defendant, or those under whom he claims, entered and took possession of the said land in controversy. Congrove v. Burdett, 28 W. Va. 223. f. Color of title Character of deed which gives color of title. The court instructs the jury that a deed in writing which purports to convey lands by metes and bounds and pass a title thereto, is color of title, no matter in what its invalidity may consist. RoMnson v. Lowe, 50 W. Va. 82. g. Same Not necessary that evidence of be in writing. The court instructs the jury that color or claim of title which may be sufficient to establish title to land by ad- verse possession, may be under a good or bad, legal or equitable title; that it is not indispensible that the claim of title should be in the form of a deed or any other writ- ing; that the claim, from its nature or character, may be -2-2-2 EJECTMENT. wholly independent of any written evidence; and if a party have a deed or other writing with a specified bound- ary, the possession which he may take and hold is noi necessarily restricted or confined to what he shall prove to be within the precise boundary of such deed or writ- ing; he may take and hold actual possession of land out- side of his true boundary. Congrove v. Burdett, 28 W. Va. 223. h. Quantity of land not to be considered when convey- ance is made by metes and bounds. The court instructs the jury that the fact that the deed from - - to - - conveys by metes bounds to said more than - - acres should not be taken into considera- tion by you in determining the matters in controversy in this action. Robinson v. Lowe, 50 W. Va. 83. i. Boundary lines Marked lines and ancient fences ele- ments of proof. The court instructs the jury that marked lines and ancient fences are elements of proof to be considered when applicable in all questions of boundary, and in this case if the jury believe from the evidence that there was an ancient fence at or near the - - stake called for as corner of the - - acre tract of land owned by , which marked his boundary line at that point, the line of said fence as an element of proof, is entitled to con- sideration in determining the true line of the land in controversy, and the marked lines on the land in controver- sy are entitled to more weight than the marked lines to ad- jacent tracks. Maxwell v. Kent, 49 W. Va. 548. j. Same Natural boundary lines. The court instructs the jury that in ascertaining the boundaries of a tract of land described in a grant or deed, natural boundaries or lines of marked trees will be estab- EJECTMENT. 223 lished in preference to mere course and distance; and where there are no natural boundaries and lines of marked trees to be relied on to establish such boundaries, the courses and distances called for in such deed or grant will control. Congrove v. Burdett, 28 W. Va. 222. k. Defective acknowledgment of a married woman. The court instructs the jury that the deed executed by - to - , offered in evidence by the plaintiff, and pur- porting to be also signed and acknowledged by - , wife of the said - , is a good deed for the purpose of con- veying the interests of - - in the lands therein men- tioned ; and the court also instructs the jury that if they find from the evidence that the said - , at the time of the execution and acknowledgement of said deed, was the wife of the said , then the said deed is not valid, so far as it purports to be her deed, and does not convey any interests she may have had in said land, and cannot operate against her or her grantees by way of estoppel. Laidley v.' Land Co., 30 W. Va. 508. 1. Life-estate Termination of Right of way Statute of limitations. The court instructs the jury that if the defendant had only received a conveyance of the right of a way over the land in controversy from , and the said was only seized of a life-estate in said land by virtue of his mar- riage, then the title of the defendant ceases at the ter- mination of said life-estate. And the statute of limita- tions will not commence to run in favor of the defendant until after the said life-estate terminates. Jones v. Rail- road Co., U W. Va. 518. m. Taxes Duty of land-owner to have lands assessed for When failure to have assessments made and taxes paid works forfeiture. The court instructs the jury that it shall be the duty 224 EJECTMENT. of every owner of land to have it entered on the land books of the count}' in which it or a part of it is situated, and to cause himself to be charged with the taxes thereon and pay the same. When for any five consecutive years after the year 1869 the owner of any tract of land shall not have been charged on such books with state tax on said land, then the land shall be forfeited and the title thereto vested in the state. If the evidence in this case shows that the land claimed by the plaintiff was not for any five successive years after the year 1869, charged on the land books of the county in which it was situated and the plaintiff or those under whom he claims did not cause themselves to be charged with taxes thereon and pay the same, then the said land or lands were forfeited and the title thereto vested in the state and the plaintiff cannot recover in this suit and the jury must find for the de- fendant. Davis v. Living, 50 W. Va. 433. [NOTE. While forfeiture before the suit commences defeats tue plaintiff's suit, forfeiture before the trial does likewise.] [NOTE. For other instructions concerning forfeiture, for non-payment of taxes on which quasi approval seem to have been placed. See Davis v. Living, 50 W. Va. 432, 433, 434.] n. Same How coterminous tracts belonging to same party may be assessed. The court instructs the jury that if a person has his land charged upon the land books in a large tract that covers all his smaller tracts, or any of his smaller tracts, it is not necessary for him to have it charged to him in the small tracts, and no forfeiture can accrue to those small tracts by reason of their being so charged as small tracts, if they are included in the large tracts. In other EJECTMENT. 225 words, coterminous tracts of land belonging to the same person for the assessment and payment of taxes are the same as one tract. Maxwell v. Cunningliam, 50 W. Va. 301. o. Forfeitures How deemed in law What party claim- ing benefit of forfeiture must prove. The court instructs the jury that forfeitures are deemed odious in law and -will never be presumed, but must be strictly proved by the party relying on the same. And before the defendant can have the benefits of the for- feiture claimed by him for a failure of the plaintiff, or those under w,hom he claims, to have had the land in con- troversy placed upon the land books in - county and pay the taxes thereon for five successive years after the year , the defendant must clearly prove that the said land, or any part thereof, in controversy has not been up- on the land books for those years, neither in large tracts nor small ones. Maxwell v. Cunningham, 50 W. Va. 301. p. Equity of redemption Purchase by creditors. The court instructs the jury that when , the debtor, executed the deed to - , he conveyed nothing but the equity of redemption, or right to pay off the deed of trust and prevent the sale of the land conveyed therein; and if they believe from the evidence that the acres of land was sold by - , trustee, and purchased by - , the creditor, that such sale vested in - , the creditor, the legal title to said land, and they should find for the plaintiff. Carrell v. Mitchell, 37 W. Va. 141. q. Same Defeat of tax purchasers title Payment of taxes by creditor. The court instructs the jury that if they believe from the evidence that was a creditor of , and as such, 226 ELECTRICAL COMPANIES. paid the taxes on the land in controversy for the years for which it was returned delinquent, then the same was im- properly returned delinquent, and the tax-deed conferred no title on the purchaser at the tax sale. Carrell v. Mitchell, 37 W. Va. 140. CHAPTER 28. ELECTRICAL COMPANIES. a. Insulation of wires Duty of company as to. b. Liability of company for injuries resulting from improper insulation. c. Same. d. Same Live wires Defective insulation. e. Cause of injury Preponderance of evidence. f. Cause of injury other than that alleged. g. Same. h. Injuries caused by other than the natural results of negligence of defendant. i. As to liability for injury had injury not been fatal. j. Unavoidable accidents Violation of duty. k. Anticipated accidents What to be considered. 1. Proximate cause of injury Preponderance of evi- dence. m. Preponderance of evidence. n. Same What must be established by. o. Utmost caution required of company Definition of. a. Insulation of wires Duty of company as to Require- ments as to Inspection of wires. The court instructs the jury that it was the duty of the defendant to not only protect any portion or portions of ELECTRICAL COMPANIES. 227 its wires in close proximity to the - end of the balcony mentioned in evidence that may be exposed, by proper in- sulation, so that persons coming in contact therewith in the performance of their work would not be injured, but it was also the duty of the defendant, by proper inspec- tion from time to time, to see that said insulation was kept in a proper condition. Thomas v. Electrical Co., 54 W. Va. 398. b. Liability of company for injuries resulting from im- proper insulation. The court instructs the jury that if they believe from the evidence that - - was attempting to release the ban- ner on the side of the balcony mentioned in evidence and leaned over the balcony in such a way that he was brought in close proximity to the wire of the defendant, and that by some accident his hand came in contact with said wire, and that said wire at the point of contact was improperly insulated, and that he thereby received from said wire the shock of electricity which caused his death, and further believe that he received such shock of elec- tricity by reason of the failure of the defendant to prop- erly insulate its wires at the point where the deceased came in contact therewith, then the jury should find a verdict for the plaintiff. Thomas v. Electrical Co., 54 W. Va. 401. c. Same. The court instructs the jury that if they believe from the evidence that one of the wires of the defendant in close proximity to the - - end of the balcony men- tioned in evidence was not properly insulated, and that deceased was attempting to release the banner on the - end of said balcony and leaned over said balcony and without negligence on his part was thereby brought ELECTRICAL COMPANIES. in contact with said wire where it was improperly insu- lated, and by reason of such contact received a shock of electricity from said wire which caused his death, then the jury should find a verdict for the plaintiff. Thomas v. Electrical Co., 54 W. Va. 402. d. Same Live wires Defective insulation. The court instructs the jury that even if they believe from the evidence that deceased knew of the presence of the wire of the defendant company near the balcony men- tioned in evidence, and further believe that when in the act of releasing or attempting to release the banner on the - end of said balcony he was brought in such close proximity to such wire that he took hold of the same to support himself, this fact will not excuse the defendant from liability if the jury believe from the evidence that deceased did not know that it was dangerous to touch said wire and that he, in taking hold of said wire received such a shock of electricity by coming in contact there- with that his death was caused thereby; and provided further that the jury believe that such shock was caused by defective or improper insulation of said wire at the point where deceased came in contact with it. Thomas v. Electrical Co., 54 W. Va. 402. e. Cause of injury Preponderance of evidence. The court instructs the jury that unless the plaintiff prove by a preponderance of the evidence that the injury complained of occurred by contact with the wire or one of the wires of the - - company, described in the evi- dence as being - of the - - building, then it is the duty of the jury to find a verdict for the defendant. Thomas v. Electrical Co., 54 W. Va. 403. f. Cause of injury other than that alleged. The court instructs the jury that if you believe from ELECTRICAL COMPANIES. 229 the evidence that the deceased was killed by placing his hand on the messenger wire, on the north west side of the balcony, and was not killed by contact with the wires of the defendant company, then you must find for the defend- ant. Thomas v. Electrical Co., 54 W. Va. 403. g. Same. The court instructs the jury that if you believe from the evidence that the injury sustained by was caused by contact with the messenger wires of the Telegraph Company or by a current of electricity coming from the tin or sheet iron roof of the balcony, then your verdict should be for the defendant. Thomas v. Electrical Co., 54 W. Va. 403. h. Injuries caused by other than the natural results of negligence of defendant. The court instructs the jury, that although they may be- lieve from the evidence that the injury complained of was occasioned by the negligent acts of the defendant in fail- ing to insulate its wires and its failure to inspect the same, still, if you further believe from the evidence that said injury was not the natural result of the negligent acts of the defendant in failing to insulate its wires, and in its failure to inspect the same, and could not have been reasonably foreseen or expected to result from the conduct of the defendant in regard to its failure to insu- late its wires, and its failure to inspect the same, then the defendant would not be liable. Thomas v. Electrical Co., 54 W. Va. 403. i. As to liability for injury had injury not been fatal. The court instructs the jury that the electrical company is only liable in case it would have been liable to deceased if the injuries to him had not resulted in 230 ELECTRICAL COMPANIES. death. Therefore, if the jury believe from the evidence that - , either by his own negligence, or the defend- ant's want of negligence, would not have been entitled to recover in case he had survived the injury, they are instructed to find for the defendant. Thomas v. Electrical Co., 54 W. Va. 403. j. Unavoidable accident Violation of duty. The court instructs the jury that where the circum- stances of an accident indicate that it may have been unavoidable notwithstanding reasonable and proper care, the plaintiff charging negligence cannot recover without showing that the defendant has violated a duty incum- bent upon it from which the injury followed in natural sequence. Snyder v. Electrical Co., 43 W. Va. 671. i k. Anticipated accidents What to be considered. The court instructs the jury that the defendant in erecting and maintaining its wires, was only bound to an- ticipate such combinations of circumstances and accidents and injuries therefrom as it may reasonably forecast as likely to happen, taking into account its past experience and the experience and practice of others in similar situ- ations, together with what is inherently probable in the condition of the wires as they relate to the conduct of its business. Snyder v. Electrical Co., 43 W. Va. 672. 1. Proximate cause of injury Preponderance of evi- dence. The court instructs the jury that in case the plaintiff bases his claim for damages upon alleged negligence and carelesseness on the part of the defendant, and that be- ing so, that the burden is upon the plaintiff to establish such negligence first and then to prove that such negli- gence was the proximate cause of the injury; and if the ELECTRICAL COMPANIES. 231 plaintiff fail to establish these facts by a preponderance of the evidence, it is the duty of the jury to find a verdict for the defendant. Thomas v. Electrical Co., 54 W. Ya. 403. m. Preponderance of evidence How determined. The court instructs the jury that the preponderance of the evidence in a case, is not alone determined by the number of witnesses testifying to a particular fact or state of facts, in determining upon which side the preponder- ance of the evidence is, the jury should take into con- sideration the opportunities of the several witnesses for seeing or knowing the things about which they testify; their conduct and demeanor while testifying, and the probability or improbability of the truth of their several statements in view of all the other evidence, facts and circumstances proved on the trial, and from these cir- cumstances determine upon which side is the weight or preponderance of the evidence. Thomas v. Electrical Co., 54 W. Va. 403. n. Same What must be established by. The court instructs the jury that before they can render a verdict for the plaintiff, the plaintiff must prove by a preponderance of evidence, that the injury complained of was sustained by - by reason of the wire described in the evidence not being properly insulated and that this lack of proper insulation was due to the negligence and carelessness of the defendant ; and unless plaintiff proves these facts by a preponderance of the evidence, the jury should find a verdict for the defendant. Thomas v. Elec- trical Co., 54 W. Va. 403. o. Utmost caution required of company Definition of. The court instructs the jury that the care and caution 232 EXEMPTIONS EXPLOSIONS. that is required in the management and control of elec- tricity does not reach so far as to require precautions that are extraordinary and impracticable. Even if the utmost caution is to be required, that means only the caution which is practicable and not that which is simply con- ceivable. Thomas v. Electrical Co., 54 W. Va. 403. CHAPTER 29. EXEMPTIONS. a. Party leaving the state Intention as to change of residence. The court instructs the jury that if they believe from the evidence that the plaintiff left the state with the in- tention of changing his residence to - , (another state) , and that while going out of this state pursuant to such intention, his property was attached and sold, as stated in the evidence, he was not entitled to claim, as against such levy, an exemption as a husband and parent residing in this state, and in such case the jury should find for the defendant. State &c. v. Allen, 48 W. Va. 155. CHAPTER 30. EXPLOSIONS. a. Injury to property caused by the explosion of a boiler Presumption that person in performance of lawful act has done his duty. The court instructs the jury that they cannot infer negligence from the mere explosion of the boiler. The EXPLOSIVES. 233 plaintiff must prove in addition to such explosion, such facts and circumstances as will logically raise an in- ference of negligence on the part of the defendant before they can find for the plaintiff. The presumption of law is, that persons in the performance of a lawful act have done their duty, and this presumption continues until the contrary is proven. Veith v. Salt Co., 51 W. Va. 100. CHAPTER 31. EXPLOSIVES. a. Injuries caused by explosion of dynamite. b. Admissions of defendant Negligence. a. Injuries caused by the explosion of dynamite. The court instructs the jury that if they believe from the evidence that the plaintiff was injured by the explosion of dynamite, as complained of in the declaration, and that the negligence of the defendant was the proximate cause of the injury received by the plaintiff, then they must find a verdict for the plaintiff. Schwartz v. 8hull, 45 W. Va. 411. b. Admissions of defendant Negligence. The court instructs the jury that even if they believe from the evidence that the defendant, after the explosion, and injury of the plaintiff, stated or admitted that he was to blame in the matter, or that it was his fault, yet that does. not entitle the plaintiff to recover unless the evidence in the case before the jury, including such state- ment of said defendant, if the jury believe that it was made, shows that the defendant was negligent, and that his negligence was the direct and proximate cause of plain- tiff's injuries. Schwartz v. Shull, 45 W. Va. 410. 234 FALSE ARREST AND IMPRISONMENT. CHAPTER 32. FALSE ARREST AND IMPRISONMENT. a. Arrest of passenger on a railroad train by civil officer. b. Arrest of passenger by conductor of train. c. Same Scope of authority of conductor. d. Same Definition of scope of authority. e. Same. f. Arrest of person engaged in an unlawful combina- tion. a. Arrest of passenger on a railroad train by a civil offi- cer Same While passenger armed with dangerous or unlawful weapons. The court instructs the jury that if they believe from the evidence that the plaintiff, while armed with danger- ous or unlawful weapons, was on the train of the de- fendant, within the corporate limits of - , and it became known to the police of that town that he was so unlawfully armed, the police had the right to arrest him on the cars, and take him therefrom, and the defendant, the - - railway company, would not be liable for such arrest. Claiborne v. Railway Co., 46 W. Va. 369. b. Arrest of passenger by conductor of train Acts of conductor, acts of railroad company. The court instructs the jury that if they believe from the evidence that the plaintiff without just cause was arrested after he became a passenger on one of the de- fendant's trains, and during the time that he was on such train, either by the conductor in charge of said train or by the policeman, - , by order of the said conductor, FALSE ARREST AND IMPRISONMENT. 235 that the act of the conductor, or of the said policeman acting under the orders of the said conductor, was the act of the defendant. Gillingham v. Railroad Co., 35 W. Va. 602. c. Same Scope of authority of conductor. The court instructs the jury that the plaintiff cannot re- cover in this case unless the acts done by the conductor in causing the arrest of the plaintiff were within the scope of his employment by the defendant railroad com- pany ; and such acts, to be within the scope of his employ- ment, must be such as he would be usually and- naturally called upon to do while discharging his duties as a rail- road conductor in and about the business of the defend- ant railroad company. Gillingham v. Railroad Co., 35 W. Va. 603. d. Same Scope of authority defined. The court instructs the jury that it is not sufficient that the acts complained of were done during the time of the conductor's employment by the railroad company, or at the place where his duties called him to be. There must be something more, something which he was authorized by the defendant company to do, or which he did do while acting as such conductor, in the scope of his duties and employment. Gillingham v. Railroad Co., 35 W. Va. 603. e. Same. The court instructs the jury that unless the act done by the conductor in causing the arrest of the plaintiff was authorized by the railroad company, or was properly and legitimately within the scope of his employment, you must find for the defendant. Gillingham v. Railroad Co., 35 W. Va. 602. 236 FALSE REPRESENTATIONS. f . Arrest of person by persons engaged in unlawful com- bination. The court instructs the jury that if they be- lieve from the evidence in this case that , , - , - , - , and - combined for an unlawful purpose, and in the execution of that purpose as a consequence of that unlawful combi- nation, the plaintiff was arrested without probable cause, and imprisoned by any of the defendants, the law is for the plaintiff, with the plea of not guilty, and they must find for him such damages as they, in their discretion, may deem proper, not exceeding the amount laid in the writ Bloss v. Plymale, 3 W. Va. 399. CHAPTER 33. FALSE REPRESENTATIONS. a. Avoidance of contracts founded on Fraudulent in- tent. The court instructs the jury that if a seller, in order to induce a sale, makes a false representation as to any ma- terial fact, by which the purchaser is mislead to his in- jury, and in which the purchaser is presumed to have trusted to the seller, then the contract founded on such representation is void, whether the seller knew the repre- sentations to be false at the time they were made or not, and whether made with a fraudulent intent or not. Hood v. Block, 29 W. Va. 250. FERRIES FLOATABLE STEAMS. 237 CHAPTER 34. FERRIES. a. Right of county court to authorize in incorporated towns. The court instructs the jury that if they find from the evidence that the plaintiff, - , has been authorized by the county court of - county, to establish a ferry from the mouth of - - grade and - - road, or with- in fifty yards thereof, upon his own land or upon land contracted for, to street, - , or within twenty yards thereof, that said roads and streets are public high- ways, and the grant from the county court operates to confer upon the plaintiff the right to land his boat and take passengers from the foot of - - street without showing to the jury that he first obtained the consent of the authorities of - . Mason v. Bridge Co., 20 W. Va. 234. CHAPTER 35. FLOATABLE STREAMS. a. What deemed a floatable stream Obstructions to. b. Same Natural commercial capacity of stream Non-user of stream. c. How navigability of stream determined. d. Criminal liability for obstructing floatable streams. a. What deemed a floatable stream Obstructions to. The court instructs the jury that it is a question for the jury to determine from the evidence whether 238 FLOATABLE STEAMS. river, at the point at which the - - complained of is located, is floatable; and if the jury believe from the evi- dence that said river is capable of being used to float rafts, boats, and other timber in times of rises only, then, before they can find the defendant guilty, it must be proven to the jury by the evidence, beyond all reasonable doubt, that the dam complained of was so constructed and maintained as not to permit boats, rafts, and other timber to pass without unavoidable delay, at times of such rises as made the river so floatable. State v. Boom Co., 41 W. Va. 800. b. Same Natural commercial capacity of stream Non- user of stream. The court instructs the jury that if they believe from the evidence that - - creek is, and has always been, by reason of its natural capacity, navigable for floating lumber, logs, and other commercial goods, the right of the public to use the same for such purpose cannot be lost or forfeited by reason of non-user of it, or maintaining an obstruction thereto, for any length of time, and under such circumstances the plaintiff could not acquire a right to maintain a dam or other obstruction to the public use of said stream. Gaston v. Mace, 33 W. Va. 18. c. How navigability of stream determined. The court instructs the jury that in determining the navigability of - - creek, it is the valuable, more than the continued capacity that is to be considered. The real question is, can it be made a valuable and beneficial aid to the public in getting the products of the country to market? Gaston v. Mace, 33 W. Va. 18. d. Criminal liability of boom owner for obstructing floatable streams. The court instructs the jury that it is a question for FORGED INSTRUMENTS FORGERY. 239 the jury to determine from the evidence whether - river at the point at which the dam complained of is lo- cated, is floatable; and if the jury believe from the evi- dence that said river is capable of being used to float rafts, boats and other timber in time of rises only, then, before they can find the defendant guilty, it must be proven to the jury by the evidence, beyond all reasonable doubt, that the dam complained of was so constructed and maintained as not to permit boats, rafts, and other timber to pass without unavoidable delay, at the times of such rises as made the said river so floatable. State v. Boom Co., 41 W. Va. 800. CHAPTER 36. FORGED INSTRUMENTS FOKGEKY. a. Definition of forgery Intent to defraud Altera- tion of instrument after signature. b. Delay in giving notification of forgery Demand for repayment. c. Knowledge and good faith of party discounting forged instrument. d. Effect of negotiations with payee for payment of forged instrument. a. Forgery Definition of Intent to defraud Altera- tion of instrument after signature. The court instructs the jury that the offense of forgery consists in the false making or altering of a written in- strument, to the prejudice of another's rights and the in- tent to defraud ; that in the case at bar the only two ques- tions before the jury are : 1st, did the defendant alter the instrument after it was signed by , and, 2nd, was 240 FORGED INSTRUMENTS FORGERY. such alteration, (if made by the defendant), done with intent to defraud and that the question of intent need not be enquired into by them unless they first believe from the evidence, beyond a reasonable doubt, that the defendant altered the said instrument after it was signed by , and if the evidence leaves a reasonable doubt in their minds as to whether the said defendant altered the said instrument after it was so signed by the said , they must find the defendant not guilty. State v. Pine, 56 W. Va. 10. b. Delay in giving notification of forgery Demand for re-payment. The court instructs the jury that if they believe from the evidence that the plaintiff on the day of , 18 , knew the forgery of his name to the note mentioned as paid by mistake by him on - , 18 , and that the plaintiff failed to notify the defendant of said forgery till the fifteenth day of April following and to demand a re-payment of the money, that then by reason of his delay he is not entitled to recover in this suit. Johnston v. Bank, 27 W. Va. 346. c. Knowledge and good faith of person discovering forged instrument. The court instructs the jury that if they believe from the evidence that the defendant discounted the note in this suit mentioned and received the same in his regular course of business, in good faith and for value, and did not know or have any reason to suspect that the plaintiffs' name as maker was forged to said note when the defend- ant discounted the same, and that said note was paid by plaintiff or by his agent, to the defendant on, or about April 2, 18 , that then and in that event the plaintiff is not entitled to demand back the money so paid, and can- GIFTS. 241 not recover in this suit. Johnston v. Bank, 27 W. Va. 346. d. Effect of negotiations with payee for payment of forged note without the knowledge or consent of holder of same. The court instructs the jury that if they believe from the evidence that after the plaintiff discovered that his name to said note in this suit as maker had been forged by the payee, and that the plaintiff without the knowledge or consent of the defendant entered into negotiations with the said payee, for the re-payment of the money paid by the plaintiff to the defendant on said note and without the knowledge or consent of the defendant gave time to said payee to arrange for and make said re-payment to the plaintiff, that then and in that event the plaintiff must be held as having adopted said forged note as his own and said payee as his debtor and that he must look to said payee for re-payment, and is therefore, not entitled to recover in this suit. Johnston v. Bank , 27 W. Va. 346. CHAPTER 37. GIFTS. a. Gifts causa mortis What necessary to constitute. b. Place of making gift Residence of donor and donee , a. Gifts causa mortis What necessary to constitute. The court instructs the jury that if they believe from the evidence that the - - money here in controversy was delivered by - , (the donor), to - - for his daughter as a voluntary gift from said , (the 242 GIFTS. donor), to said daughter, then so long as said money remained in the hands of - , said - , (the donor), had the right to revoke the gift and reclaim the money from - , and if the said - , (the donor), died while the said money still remained in the possession of the said , and not yet delivered by him to his daugh- ter, the authority to deliver was thereby revoked, and the said money is the property of the plaintiff, the administra- tor of the said - , (the donor). Dickeshied v. Bank, 28 W. Va. 352. b. Place of gift Residence of donor and donee. The court instructs the jury that if they believe from the evidence that - , (the donor), gave the - money here in controversy to - - for his daughter while said - , (the donor), and - - resided to- gether, and that said - , or his daughter, did not have possession of the said money elsewhere than at such resi- dence until after the death of - , (the donor), then such gift was not valid, and the jury should find for the plaintiff, the administrator of said - , (the donor). Dickeshied v. Bank, 28 W. Va. 351. HOMICIDE. . 243 CHAPTER 38. HOMICIDE. I. MURDER ITS ELEMENTS AND ITS IN- CIDENTS. II. MANSLAUGHTER - - VOLUNTARY AND IN- VOLUNTARY. III. EXCUSE AND JUSTIFICATION. IV. DEGREES OF OFFENSES AND PUNISH- MENTS IMPOSED. I. MURDER ITS ELEMENTS AND ITS IN- CIDENTS. a. Necessity for establishing homicide. b. Same Whether murder or suicide. c. Material allegations of indictment Necessity for proving. d. Murder in the first degree Proof required to con- vict of. e. How murder in second degree elevated to murder in first degree. f. Same. g. Intent to kill Presumption as to. h. Same Extenuating circumstances. i. Implied malice When malice may be inferred, ffl j. Same Implied willfulness, deliberation and pre- meditation. k. Duration of malice. 1. Provoking the affray Seeking deadly combat, m. Assault brought on by third party Intoxication of accused. n. Same Character of assault made by deceased. 244 HOMICIDE. o. Assault on another in addition to that made upon deceased. p. Conspiracy Murder resulting from, q. Same Intent of and acts done by conspirators. a. Necessity for establishing homicide. The court instructs the jury that if they entertain any reasonable doubt from the evidence as to whether - was murdered or not, they should find the defendant not guilty. State v. Ice, 34 W. Va. 251. b. Whether murder or suicide. The court instructs the jury that unless they believe beyond a reasonable doubt that the prisoner killed the deceased, and that the deceased did not kill herself, then the jury must acquit the prisoner. State v. Kerns, 47 W. Va, 270. c. Material allegations of indictment Necessity for prov- ing. The court instructs the jury that the burden of proof rests upon the prosecution to make out and prove to the satisfaction of the jury, beyond all reasonable doubt, every material allegation in the indictment, and unless that has been done the jury should find the defendant not guilty. State v. Johnson d- Devinney, 49 W. Va. 692. d. Murder in the first degree Proof required to con- vict of. The court instructs the jury that before. they can find the defendant guilty of murder in the first degree they must believe from the evidence that the killing of was willful, deliberate and premeditated and with malice aforethought, and was the result of cool, deliberate judg- ment and previous malignity of heart, without justifica- HOMICIDE. 245 tion, excuse, palliation or alleviation. State v. Manns, 48 W. Va. 485. e. How murder in the second degree elevated to murder in the first degree. The court instructs the jury that where a homicide is proved the presumption is that it is murder in the second degree. If the state would elevate it to murder in the first degree she must establish the characteristics of that crime, and if the prisoner would reduce it to manslaugh- ter, the burden is on him. State v. Cain, 20 W. Va. 709. f. Same. The court instructs the jury that if they believe from the evidence that - came to his death by a pistol shot wound at the hands of the prisoner, the presump- tion is that it is murder in the second degree. If the state would elevate it to murder in the first degree, she must establish the characteristics of that crime; and if the prisoner would reduce it to manslaughter, the burden of proof rests upon the prisoner. State v. Hobbs, 37 W. Va. 819. g. Intent to kill Presumption as to. The court instructs the jury that a man is presumed to intend that which he does or which is the immediate or necessary consequence of his act. State v. Dickey, 48 W. Va. 326. h. Same Extenuating circumstances. The court instructs the jury that a man is presumed to intend that which he does or which is the immediate or necessary consequence of his own act, and if the prisoner, with a deadly weapon in his possession, with- out any or upon very slight provocation, gave the de- ceased a mortal wound, he, the prisoner, is prima facie 246 HOMICIDE. guilty of willful, deliberate and premeditated killing, and the necessity rests upon him of showing extenuating cir- cumstances and unless he proves such extenuating circum- stances, or the circumstances appear from the case made by the state, he is guilty of murder in the first degree. State v. Davis, 52 W. Va. 225. (See the Cain case, 20 W. Va. 679.) i. Implied malice When malice may be inferred. The court instructs the jury that to convict one of murder it is not necessary that malice should exist in the heart of the accused against the deceased. If the accused was guilty of striking, with a deadly weapon, another, and of killing him, the intent, the malice and willfulness, deliberation and premeditation, may be inferred from the act; and such malice may not be directed against any particular person, but such as shows a heart regardless of social duty and fatally bent on mischief. State v. Welch, 36 W. Va. 697. j. Same Implied willfulness, deliberation and premedi- tation. The court instructs the jury that to convict one of murder it is not necessary that malice should exist in the heart of the accused against the deceased. If the jury believe from the evidence that the prisoner was guilty of cutting, with a deadly weapon, the deceased, and of kill- ing her, the intent, the malice and the willfulness, deliber- ation and premeditation may be inferred from the act, and such malice may not be directed against any particular person, but such as shows a heart regardless of social duty and fatally bent on mischief. State v. Tucker, 52 W. Va, 431. k. Duration of existence of malice. The court instructs the jury that there is no particular HOMICIDE. 247 period during which it is necessary that the malice should have existed or the prisoner should have contemplated the homicide. If the intent to kill is executed the instant it springs into the mind, the offense is as truly murder as if it had dwelt there for a longer period. State v. Welch, 36 W. Va. 701. 1. Provoking the affray Seeking deadly combat. The court instructs the jury that if they believe from the evidence, beyond a reasonable doubt, that the prisoner, armed with a - , (deadly weapon), sought the de- ceased with the view of provoking a difficulty with him, or with the intent of having a fray with him, for the purpose of killing him, and a difficulty did ensue, he can- not, without some proof of a voluntary change of con- duct or action on his part, excuse the killing of the de- ceased upon the ground that the deceased fired the first shot, for the law will not hold him guiltless, who by seek- ing a combat and continuing therein, brings upon him- self the necessity of killing his fellow-man, upon the prin- ciple that one cannot knowingly and wrongfully bring upon himself the very necessity which he sets up for his defense. State v. Hatfield, 48 W. Va. 572. m. Assault brought on by third party Intoxication of accused. The court instructs the jury that if they believe from the evidence that - , the brother of the prisoner, was in fault and by his fault brought about the assault by the deceased upon him, then said , (brother of the prisoner), was bound to retreat as far as he could, un- less prevented by the fierceness of the attack threatened by the deceased, before the prisoner was justifiable in tak- ing the life of deceased in order to save the life of , (his brother), or to protect him from great bodily harm; unless the jury believe from the evidence that the said 248 HOMICIDE. , (brother of the prisoner), was so drunk as to be mentally incapable of knowing it was his duty to retreat, or physically unable to retreat. State v. Greer, 22 W. Va. 818. n. Same Character of assault made by deceased. The court instructs the jury that if they believe from the evidence that the said - , (brother of the prison- er), provoked the deceased to make an assault upon him and such assault was intended by the deceased to be a mere common trespass upon the person of said - , (brother of the prisoner), and it so appeared to the prison- er, then the prisoner was not justified in taking the life of the deceased to protect the said - - from such as- sault or trespass. State v. Grecr, 22 W. Va. 818. o. Assault on another in addition to that made upon deceased. The court instructs the jury that in determining the guilt or innocence of the prisoner for the shooting of on the day of - , 18 , they cannot con- sider the shooting of - - (another), upon his wagon, except in so far as may tend to explain the prisoner's act in shooting or shooting at the deceased, as aforesaid. State v. Evans, 33 W. Va. 423. p. Conspiracy Murder resulting from. The court instructs the jury that if they believe from the evidence, beyond a reasonable doubt, that a conspira- cy was formed between the prisoner and other persons, whose names are unknown, that the purpose of that con- spiracy was to murder - , and that pursuant to that conspiracy, the unknown members of the conspiracy, or some of them, killed said - , and that the kill- ing was done with malice aforethought, either expressed or implied, and that the prisoner was present at the time HOMICIDE. 249 - was killed, and aided by acts, or encouraged by words or gestures, those actually engaged in said kill- fng, then said prisoner was a principal in the killing and murder. State v. Morgan., 35 W. Va. 274. q. Same Intent of and acts done by conspirators. The court instructs the jury that even if you believe that before , - , 18 , the deceased, the witness, , the witness - - and the witness - , had threatened, kicked, beat, bruised and assaulted the de- fendants ; yet if you further believe from all the evidence that the defendants followed the deceased and those who were with him on said - afternoon, down - street, from a point above - - street to a point near the - - mentioned in evidence, with the felonious in- tent to take the life of deceased and there, without further provocation, justification or legal excuse shot and killed the deceased as charged in the indictment, then it is your duty to find them guilty of murder in the first degree. State v. Johnson & Devinney, 49 W. Va. 692. II. MANSLAUGHTER -- VOLUNTARY AND IN- VOLUNTARY. a. Voluntary manslaughter Definition of. b. Passion sufficient to reduce homicide to manslaugh- ter. c. What necessary to reduce homicide to manslaugh- ter. d. Involuntary manslaughter Accidental killing. a. Voluntary manslaughter Definition of. The court instructs the jury that voluntary manslaugh- ter is where the act causing death is committed in the heat of a sudden passion caused .by provocation. And they are further instructed that if they believe from the evidence 050 HOMICIDE. that the defendant, in the heat of sudden passion, caused by provocation, killed - , at the time and place alleged in the indictment, they should find the defendant guilty of voluntary manslaughter, unless they further believe from the evidence that the defendant believed, and had reason to believe that the blow which resulted in - 's death was necessary to protect his own life or to protect himself from great bodily harm, and that the necessity of inflicting said blow was not brought about by defend- ant's own conduct. State v. Dickey, 48 W. Va. 326. b. Passion sufficient to reduce homicide to manslaughter. The court instructs the jury that if they believe from the evidence that on the day that - - was killed and before he was killed, the prisoner and one - - went to the machine shops referred to in the evidence and that the prisoner went there at the request of said - - as detailed in his evidence, and that after the prisoner got to the said machine shops, he became engaged in a quarrel with the deceased which resulted in a fight between them, and that while engaged in said quarrel and fight, the said deceased and the prisoner were excited, angry and that their passions were aroused, and that in said fight, while the prisoner was excited, angry and his passions aroused, he shot and killed the said - , they cannot find the prisoner guilty of anything higher than voluntary man- slaughter. State v. Dodds, 54 W. Va. 294. c. What required to reduce homicide to manslaughter. The court instructs the jury that if they believe from the evidence that - came to his death by a pistol shot wound at the hands of the prisoner, the presumption is that it is murder in the second degree. If the state would elevate it to murder in the first degree, she must establish the characteristics of that crime; and if the prisoner HOMICIDE. 251 would reduce it to manslaughter, the burden of proof rests upon the prisoner. State v. Hobbs, 37 W. Va. 819. d. Involuntary manslaughter Accidental killing. The court instructs the jury that accidental killing is not such a matter of defense as throws upon the prisoner the burden of proving it by a preponderance of the evi- dence ; that it is the duty of the state to allege and prove that the prisoner killed - - intentionally or willfully, and if the evidence in this case taken altogether, raises in the minds of the jury a reasonable doubt as to whether the prisoner killed - intentionally or accidentally, they should not find the prisoner guilty of anything higher than involuntary manslaughter or assault and battery. State v. Dodds, 54 W. Va. 293. III. EXCUSE AND JUSTIFICATION. 1. RIGHT TO KILL IN DEFENSE OP PERSON. 2. WHEN PLEA OF SELF DEFENSE NOT AVAILABLE. 3. RIGHT TO KILL IN DEFENSE OF FAMILY OR HABITATION. 4. RIGHT TO KILL IN DEFENSE OF ANOTHER. 5. RIGHT TO KILL TO PREVENT A FELONY. 6. INTOXICATION AND INSANITY. 7. AGE FOR CAPACITY TO COMMIT CRIME. 1. RIGHT TO KILL IN DEFENSE OF PERSON. a. Imininency of danger. b. Danger need not be real but apparent. c. Accused to judge of imminence of danger. d. Apprehension of danger What must be based on. e. Mutual combat Death resulting from What ac- cused must show. f. Fresh provocation Old grudge between the par- ties. 252 HOMICIDE. g. Good character of accused, h. Burden of proof, i. Same What prosecution required to prove. a. Imminence of danger. The court instructs the jury that if they are satisfied from the evidence that the deceased, armed with a - , attacked the defendant, and that the defendant had rea- sonable cause to believe and fear, and that he did believe and fear that great bodily harm was about to be inflicted on him, and that under the influence of such belief and fear, he fired the said shot with intent to defend or pro- tect himself, then he is not guilty. State v. Hobbs, 37 W. Va. 821. b. Danger need not be real, but apparent. The court instructs the jury that if they believe from the evidence that the prisoner, being himself without fault, was attacked by the deceased in such a manner or under such circumstances as to furnish reasonable ground for apprehending a design to take away his life or to do him great bodily harm, and there was reasonable grounds for believing the danger imminent that such design would be accomplished and the said prisoner had reasonable grounds to believe and did believe such danger imminent, then he had the right to act upon such appearances, and without retreating kill said - , if he had reasonable grounds to believe and did believe that such killing was necessary in order to avoid the apparent danger, and the killing under such circumstances is excusable, although it may afterwards turn out that the appearances were false, and that there was in fact neither design to do him serious injury nor danger that it would be done, but of all this the jury must judge from all the evidence and circumstances in the case. State v. Clark, 51 W. Va. 468. HOMICIDE. 253 c. Accused to judge of the imminence of danger. The court instructs the jury that as to the inuninency of the danger which confronted the prisoner and the necessity of the killing, in the first instance the prisoner was the judge, but he acted at his peril, as the jury must pass upon his action in the premises, viewing the said actions from the prisoner's standpoint at the time of the killing, and if the jury believe from all the facts and cir- cumstances in the case, that the prisoner had reasonable grounds to believe and did believe the danger imminent, and that the killing was necessary to preserve his own life, or to protect him from great bodily harm, he was excusable for using a deadly weapon in his defense, other- wise he is not. State v. Clark, 51 W. Va. 468. d. Apprehension of danger What to be based on. The court instructs the jury that the bare fear that a man intends to commit murder or other atrocious felony, however well grounded, unaccompanied by any overt act indicative of any such intention, will not warrant killing the party by way of prevention. There must be some overt act indicative of imminent danger at the time, but the jury will judge whether the conduct and acts of the deceased, - , at the time of the shooting were of such a character as to create in the mind of the prisoner a rea- sonable fear that the deceased intended to commit mur- der or other felony, or to do the prisoner great bodily harm. Apprehension of danger to justify a homicide, ought to be based not alone on surmises; but there ought to be coupled therewith some act on the part of the party from whom danger was apprehended, evidencing an im- mediate intention to carry into execution his threats or designs; and the jury are to judge of the reasonable grounds for such apprehension on the part of the prisoner from all the facts and circumstances, as they existed at the time of the killing. State v. Cain, 20 W. Va. 710. 254 HOMICIDE. e. Mutual combat Death ensuing from What accused must show. The court instructs the jury that where there is a quar- rel between two persons and both are in fault, and a com- bat as a result of that quarrel takes place, and death ensues, in order to reduce the offense to killing in self- defense two things must appear from the evidence and cir- cumstances of the case: First, that before the mortal blow was given, the prisoner declined further combat and retreated as far as he could with safety; and secondly, that he necessarily killed the deceased in order to preserve his own life or to protect himself from great bodily harm. State v. Kohne, 48 W. Va. 337. f. Fresh provocation Old grudge between the parties. The court instructs the jury that where a homicide has been committed, and it appears from the evidence that there was an old grudge existing between the parties, but at the time of the homicide there was a fresh and sudden provocation given by the deceased to the defendant, then the law presumes that such killing was caused by such provocation and not due to the old grudge. State v. Maim, 48 W. Va. 485. g. Good character of accused as an element of self-de- fense. The court instructs the jury that the law presumes the prisoner innocent, and that in determining the question of the defendant's guilt or innocence in this case it is the duty of the jury to consider and weigh all the evidence that has been introduced including that tending to estab- lish the good character of the defendant. State v. Mor- rison, 49 W. Va. 218. h. Burden of proof. The court instructs the jury that where a homicide is HOMICIDE. 255 ' proven by the use of a deadly weapon, and the plea of self- defense is relied upon, the burden of proving such de- fense rests upon the prisoner, and to avail him, the facts and circumstances showing such defense must be estab- lished by a preponderance of the evidence. State v. Hat- field, 48 W. .Va. 571. i. Same What prosecution required to prove. The court instructs the jury that although upon a trial for murder, where the defendant relies upon self-defense, in justification of the killing, the burden is upon the defendant, yet this in no wise relieves the state from prov- ing all the elements of murder if it seeks a conviction, beyond a reasonable doubt, and to the exclusion of every other reasonable hypothesis, and if, in the case on trial, the burden is upon the prisoner to prove that he was acting in self-defense by a preponderance of the evidence, yet this in nowise relieves the state, if it seeks a convic- tion, from proving the prisoner guilty beyond every rea- sonable doubt, and to the exclusion of every reasonable hypothesis, and if the state does not so prove the de- fendant guilty beyond every reasonable doubt and to the exclusion of every other hypothesis, they must find the de- fendant not guilty. State v. Manns, 48 W. Va. 486. '2. WHEN PLEA OP SELF DEFENSE NOT AVAILABLE. a. When accused is at fault Concerning acts of de- ceased. b. Same. c. Previous threats When they do not justify homi- cide. d. Same Must be accompanied by overt acts. a. When accused is at fault Concerning acts of de- ceased. The court instructs the jury that if they believe from 2, r )(J HOMICIDE. the evidence, beyond a reasonable doubt, that the pris- oner, armed with a - , approached the deceased while he was peaceably standing on - , in such a manner as to give the deceased reasonable cause and ground to ap- prehend a design on the part of the prisoner to do him some great bodily injury, or to kill him, and reasonable cause to believe and apprehend that there was imminent danger of such design being accomplished, and if the jury be- lieve that the said - , (the deceased), did then and there have such apprehension and belief, then the de- ceased had then and there a right to procure a gun, shoot at, and even to kill the prisoner in order to save his own life, or to protect himself from great bodily harm at the hands of the prisoner, and if the prisoner, under such cir- cumstances killed the deceased he cannot be acquitted upon the plea of self-defense, but of all such facts and circumstances the jury are to judge from all the evidence before them. State v. Hatfield. 48 W. Va. 571. b. Same. The court instructs the jury that if they believe from, the evidence that the prisoner, armed with a - , a deadly weapon, on the - - day of - , at - , in said county, approached the deceased, without fault on the part of the deceased, and then and there applied to said deceased epithets and insulting language, he, said prisoner, intending then and there, before and at the time of approaching the said deceased and applying to him such epithets and insulting language, and by his manner indicating to the deceased if he, said deceased, resented by any overt act such epithets and insulting language, to in- stantly kill deceased, or to inflict upon him great bodily harm, and that while using such epithets and insulting language a bystander pushed or led away said prisoner, involuntarily on the part of the prisoner, and against his will, to a distance of - feet from the place where the HOMICIDE. 257 prisoner had commenced the use of such epithets and insulting language, and that the prisoner while so being led away still continued to have such intention and killed the deceased while making an overt act toward the pris- oner, indicating to said prisoner an intention to shoot the prisoner or to inflict upon him great bodily harm, then the prisoner cannot rely upon self-defense as a justification for the killing of said - . State v. Hat- ficld, 48 W. Va. 572. c. Previous threats When they do not justify homicide. The court instructs the jury that previous threats or acts of hostility, however violent they may be, will not justify a person in seeking and slaying his adversary. State v. Allen, 45 W. Va. 75. d. Same Must be accompanied by overt acts. The court instructs the jury that the fact of one person having threatened to take the life of another, or to inflict upon him a great bodily injury, will not excuse the per- son so threatened in becoming the aggressor, and with deadly weapon assault the person making such threats, and that although the jury may believe from the evidence that deceased, in his lifetime, had made threats to take the life of the prisoner or to inflict upon him great bodily harm, the fact of making such threats towards the pris- oner will not justify a verdict of acquittal, unless the jury further find that at the time the deceased was shot, he was making overt acts towards the prisoner, indicative of an intention to carry such threats into immediate execution, and that, by reason of such threats and overt acts, the prisoner believed that it was necessary then and there to shoot with a deadly weapon the said - , the deceased, in order to save his (the prisoner's) life, or to protect him from great bodily harm. State v. Staley, 45 W. Va. 796. 258 HOMICIDE. 3. RIGHT TO KILL IN DEFENSE OF FAMILY OE HABITATION. a. Sac-redness of one's home Right to defend. b. Same Right to repel force by force in defense of. c. Same Apparent or necessary force required. d. Same Fierceness of assault Fear of great bodily harm. a. Sacredness of one's home Right to defend. The court instructs the jury that a man's house is sacred, and his own castle, to himself and family, and that if attacked in his own house by a person armed with a dangerous weapon, and he has reason to believe, and does believe, he is in danger of losing his life, or in danger of suffering great bodily harm, at the hands of his assail- ant, he is not required to retreat, but may defend his life or person by taking the life of his assailant without re- treating. State v. Hobbs, 37 W. Va. 820. b. Same Right to repel force by force in defense of. The court instructs the jury that the dwelling house where a man lives is his home or castle, and that he may repel force by force in the defense of his person, habita- tion or property against one who manifestly intends and endeavors by violence to commit a known felony on either, and in such case he is not bound to retreat, but may pur- sue his adversary until he has secured himself from all danger, and if he kill his adversary in so doing it is justifi able self-defense. State v. Manns, 48 W. Va. 486. c. Same Apparent or necessary force required. The court instructs the jury that a person has a right to repel force by force in the defense of his person, his fam- ily or his habitation, and if in so doing he use only so much force as the necessity or apparent necessity of the HOMICIDE. 259 case requires, he is not guilty of any offense, although he kill his assailant in so doing. State v. Manns, 48 W. Va. 486. d. Same Fierceness of the assault Fear of great bodily harm. The court instructs the jury that if they believe from the evidence that the house in which defendant lived was assaulted by the deceased, and that the deceased shot at and into the said house where the defendant and his family were at supper, and if they further believe from the evidence that the prisoner at the time had reasonable cause to believe that he, or any member of his family were in danger of losing their lives or suffering great bodily harm at the hands of the deceased, then the defendant had a right to defend his house, even to. the extent of taking the life of the deceased, and if you further believe from the evidence that the defendant killed the deceased, believing from the surrounding circumstances and the con- duct of the deceased and the fierceness of the assault of the deceased, that it was necessary so to do to protect his house and his family, then they should find the defendant not guilty. State v. Manns, 48 W. Va. 486. 4. RIGHT TO KILL IN DEFENSE OF ANOTHER. a. Concerning character of assault made by deceased. The court instructs the jury that if they believe from the evidence that the said - , (brother of the pris- oner), provoked the deceased to make an assault upon him and such assault was intended by the deceased to be a mere common trespass upon the person of said - , (brother of the prisoner), and it so appeared to the pris- oner, then the prisoner was not justified in taking the life of the deceased to protect said - - from such as- sault or trespass. State v. Greet; 22 W. Va. 818. HOMICIDE. 5. RIGHT TO KILL TO PREVENT A FELONY. a. Unlawful trespass upon the property of another. The court instructs the jury that the owner or occupant of property in the lawful possession of the same has a right to use as much force as is necessary to prevent an flnlawful or forcible trespass upon the same, and if they find that the defendant was standing upon his own ground, or upon ground of which he was in lawful pos- session, and that in attempting to force a passage over the same, if they so find, the deceased was violating the law and was a trespasser with the intent and with the means of committing a felony, and was attempting to commit a felony against the person or property of the prisoner, then the defendant, as owner or occupier of the land, if they- so find, might repel force by force to the extent of killing the said - , if necessary so to do to prevent the commission of said felony, and such killing would be excusable. State v. Clark, 51 W. Ya. 468. 6. INTOXICATION AND INSANITY. a. Intoxication Capacity for knowing consequences of act. b. Same Capacity for premeditation. c. Same When the evidence tends to prove mental in- capacity. d. Same Of person in whose defense homicide com- mitted. e. Insanity Sufficient power of mind to distinguish right from wrong. a. Intoxication Capacity for knowing consequences of act. The court instructs the jury that if they believe from the evidence beyond a reasonable doubt, that the prisoner, HOMICIDE. 261 though intoxicated at the time of the firing of the shot, which caused the death of the deceased, was capable of knowing the nature and consequences of his act, and if he did know, then that he knew he was doing wrong, and that so knowing he fired the shot at the deceased with the willful, deliberate and premeditated purpose of kill- ing him, they will find the prisoner guilty of murder in the first degree. State v. Robinson, 20 W. Va. 743. b. Same Capacity for premeditation. The court instructs the jury that if they believe from all the circumstances in the case that the prisoner will- fully, maliciously, deliberately and premeditatedly killed the deceased, they should find him guilty of murder in the first degree, although he was intoxicated at the time of the killing. State v. Douglass, 28 W. Va. 301. c. Same When the evidence tends to prove the mental incapacity. The court instructs the jury that where a statute estab- lishes degrees of the crime of murder, and provides that all willful, deliberate and premeditated killing shall be murder in the first degree, the evidence given on the trial tending to prove that the accused was intoxicated at the time of the killing, is competent for the consideration of the jury upon the question whether the accused was in such a condition of mind as to be capable of deliberation and premeditation. State v. Hertzog, 55 W. Va. 83. d. Same Of person in whose defense homicide com- mitted. The court instructs the jury that if they believe from the evidence that - , the brother of the prisoner, was in fault, and by his fault brought about the assault by the deceased upon him, then said - , brother of the pris- oner, was bound to retreat as far as he could, unless pre- HOMICIDE. vented by the fierceness of the attack upon him threat- ened by the deceased, before the prisoner was justifiable in taking the life of the deceased in order to save the life of his brother or to protect him from great bodily harm, unless the jury believe from the evidence that said - , brother of the prisoner, was so drunk as to be mentally in- capable of knowing that it was his duty to retreat, or was physically unable to do so. State v. Qreer, 22 W. Va. 818. e. Insanity Sufficient power of mind to distinguish be- tween right and wrong. The court instructs the jury that if they believe from the evidence that - murdered - , as charged in the indictment, and had at the time sufficient power of mind to distinguish between the right and the wrong of such an act, although they believe he suffered from mental aberration as to other matters, the verdict ought to be guilty. State v. Haier, 36 W. Va. 770. 7. AGE FOR CAPACITY TO COMMIT CRIME. a. How question determined. The court instructs the jury that to establish capacity to commit crime in a person over seven and under four- teen years, it is not necessary that any witness shall state that he has such capacity, but the same may be shown to exist by the appearance and general conduct of the ac- cused, and by his testimony as a witness before the jury. State v. Williams, 40 W. Va. 269. IV. DEGREES OF OFFENSE PUNISHMENTS IM- POSED. a. Whether murder in first or second degree Additional findings. The court instructs the jury that if they find the pris- HOUSE OF ILL FAME. 263 oner guilty as charged in the indictment, they shall further find whether he is guilty of murder in the first or in the second degree. If they find him guilty of murder in the first degree, they may, in their discretion, further find that the prisoner be punished by confinement in the peni- tentiary, and if such further finding be not added to such verdict, the judgment thereupon rendered by the court will be that the prisoner be punished with death, and if such further finding is added, the judgment thereupon rendered by the court will be that the prisoner be con- fined in the penitentiary during his life. If the jury find the prisoner guilty of murder in the second degree, as charged in the indictment, the punishment imposed upon the prisoner will be confinement in the penitentiary not less than five nor more than eighteen years. State v. Hat- field, 48 W. Va. 573. CHAPTER 39. HOUSE OF ILL FAME. a. Contract of sale Occupancy of property under. b. Same Parting with ownership by former owner. c. Same Knowledge of former owner of purpose for which house was to be used. a. Contract of sale Occupancy of property under. The court instructs the jury that if they believe from the evidence that the defendant and - made and en- tered into the contract of sale introduced in evidence, of the property named in the indictment, and further be- lieve that for one year next preceding the finding of the indictment in this case the said occupied said 264 HOUSE OF ILL FAME. property under said contract of sale, then the jury must flnd the deefndant not guilty. State v. Emblem, 44 W. Va. 523. b. Same Parting with ownership by former owner. The court instructs the jury that if they believe from the evidence that the contract introduced in evidence be- tween the defendant and - , for the property men- tioned in the indictment, was a bona fide contract of sale, and that under said contract the said defendant parted with the ownership and control of said property, then the jury must find the defendant not guilty. State v. Emblem, 56 W. Va. 681. c. Same Knowledge of former owner of purpose for which house was to be used. The court instructs the jury that if they believe from the evidence that the contract of sale introduced in this case operated between the parties thereto as a bona fide sale of the property mentioned in the indictment, then even if they believe that the defendant knew that the property was to be used as a house of ill-fame, the jury must find the defendant not guilty. State v. Emblem, 58 W. Va. 681. INSURANCE. 265 CHAPTER 40. INSURANCE. I. FIRE INSURANCE. II. LIFE INSURANCE. III. ACCIDENT INSURANCE. I. FIRE INSURANCE. 1. THE POLICY OR CONTRACT. 2. PROOF OF LOSS. 3. WAIVER OF RIGHT TO AVOID PAYMENT OF" LOSS. 1. THE POLICY OR CONTRACT. a. Written agreement exclusive evidence of contract. b. Mistake as to party insured Knowledge of insurer as to. c. Same. d. Condition of property insured Knowledge of in- surer as to. e. Change in date covering policy after loss occurs. f. Title or ownership of property Knowledge of in- surer as to. g. Same Partnership in profits and losses. h. Incumbrances upon property Knowledge of in- surer as to. i. Same Absence of fraud upon part of insured, j. Same Rebuilding property "destroyed, k. Same Assignment of policy to secure mortgage. 1. Fraud or misrepresentation as to name of insured, m. Fraud or misrepresentations by insured as to value of property. 266 INSURANCE. n. Same As to incumbrances. o. Fraudulently altering receipt for premiums. p. Increase of risks Avoidance of policy because of. q. Additional insurance Condition of policy against. r. Same Knowledge or consent of insurer as to. s. Same Illiteracy of insured. t. Prior insurance Knowledge of insurer as to. u. Same Effect of prior policy being void. v. Renewal of policy Authority of agents Receipt for renewal. w. Same. x. Books and papers Parol waiver of requirement as to where to be kept. y. Intentional burning property insured. z. Awards Repudiation by insured of award De- mand of insured for second appraisement. a. Written agreement exclusive evidence of contract. The court instructs the jury that when parties have made a written agreement, the writing is regarded as the exclusive evidence of the contract, and all oral negotia- tions and stipulations preceding or accompanying the execution of the written agreement are merged in it, and are not admissible in evidence, and all such oral negotia- tions and stipulations should not be considered by you to contradict or vary the written policy in this case. Man pin v. Insurance Co., 53 W. Va. 566. b. Mistake as to party insured Knowledge and acts of agent of insurer. The court instructs the jury that if they believe from the evidence that the defendant, at the time it issued the policy in this suit, was fully and honestly advised of all the facts attending the ownership of the property insured, and that it was left with the defendant, through its INSURANCE. 267 agents, with such knowledge of all the facts, to issue a valid and legal policy upon said property, and the said policy, by mistake and error of said agent, or his clerk or employe, was issued in the name of plaintiff when it should have been issued in the name of his wife, then such mistake does not vitiate said policy nor affect the right of the plaintiff to recover in this suit. Deitz v. Insurance Co., 33 W. Va. 533. c. Same. The court instructs the jury that if they find from the evidence that at the time the policy in suit was executed - was the agent of the defendant company and em- ployed - - in his office to aid him in the discharge of his duties as such agent, and that the said - - at the instance of the said agent examined the property insured before said insurance was taken, wrote out the policy in suit and signed and countersigned the same for the said agent by his business name of - - & Co. ; received the cash premium that was paid and transacted the whole business, so far as the defendant is concerned, in taking and completing said insurance, and if the jury further find from the evidence that said - - knew when trans- acting said business that the property insured be- longed to the wife of the plaintiff; that he had been so told before writing up said policy by both plaintiff and his wife, and that both plaintiff and his wife relied upon him as acting for the defendant to issue a good and valid policy of insurance upon said property; that he knew at the time they so relied upon him, and he intended to issue the same in the name of the wife, but by mistake on his part issued the same in the name of plain- tiff, then the mistake of said - - does not vitiate said policy nor affect the plaintiff's right to recover in this action. Deitz v. Insurance Co., 33 W. Va. 531. ogg INSURANCE. d. Condition of property insured Knowledge of insurer as to. The court instructs the jury that if they believe from the evidence that the agent of the defendant, who took the application, had at the time a knowledge of the build- ings, and the manner in which the stove pipe and chimney were secured at the time the insurance was effected, and took upon himself to fill up the blank application, and did so upon his own information, then it was not re- quired of the plaintiff, under the policy, to change the condition of the pipe and chimney, but he was required to keep them in good order and condition, but was not re- quired to put them in better order and condition than they were in at the time the insurance was made. Sim- iiwns v. Insurance Co., 8 W. Va. 491. e. Change in date covered by policy after loss occurred. The court instructs the jury that if they believe from the evidence that the policy which has been introduced in evidence was issued by the defendant on the - - day of - , 18 , and was then written so as to cover the period from the - - day of - , 18 , to the - - day of , 18 ; and if they further believe that on the - day of - , 18 , the agent of the company, at the re- quest of the agent of the assured, notified the defendant company that it was desired to have the dates in the policy changed so as to cover a period of - , beginning on the - - day of - , 18 , and that upon receiving such notice, the defendant company made no objection to the proposed change; and if they further believe that on the - - day of - , 18 , the change was made as pro- posed, all parties being in ignorance that the fire had oc- curred; and if they further believe that the said policy was delivered to the agent of the assured, and that the defendant company received and retained the premium therefor then the fact that the property had burned at INSURANCE. 269 the time when such change was made will not prevent a recovery in this action by the plaintiff. Land Co. v. Insur- ance Co., 35 W. Va. 677. f . Title or ownership of property Knowledge of insurer as to. The court instructs the jury that if they believe from the evidence that before the issuance of the polhy read in evidence, the duly authorized agent of the defendant who took the said policy and represented the defendant in procuring the same was fully informed of the facts of and concerning the plaintiff's title and ownership of the real estate referred to in said policy, and was informed of the provisions of the deed conveying said property to the plaintiff, and that he, the said agent, then and there informed the representative of the plaintiff that the policy should be taken in the name of the plaintiff as the owner of said property, and that the representative of the plain- tiff relying upon said representative and agent of the de- fendant, assented to such suggestion, and that the policy was accordingly so written by the representative of the defendant and delivered to the plaintiff and the repre- sentative of the defendant then and there accepted and received the premium for the said policy, then the de- fendant would not be relieved from liability under said policy, even if the deed referred to only vested a life estate in the plaintiff. Medley v. Insurance Co., 55 W. Va. 364. g. Same Partnership in profits and losses. The court instructs the jury that if they believe from the evidence that the arrangement between the assured and this third person, under which the wool in con- troversy was bought and held, was that expressed in the letter, then there was a partnership between the assured and this third person in the profits or losses of the trans- 270 INSURANCE. action, still the interest of the assured in the wool itself was the entire sole and unconditional ownership within the meaning of this policy. Welch v. Insurance Co., 23 W. Va. 310. h. Incumbrances upon property Knowledge of insurer as to. The court instructs the jury that if they believe from the evidence that before the issuance of the policy of in- surance read in evidence a trust lien on the real estate mentioned existed in favor of - , and that the agent of the defendant who acted in the issuance and delivery of said policy was informed and notified of the existence of said lien and of the fact that it remained unpaid and that the said agent then and there stated that the fact of the existence of said lien made no difference, and that he issued said policy and received the premium therefor with full notice thereof, then the defendant would not be re- lieved from liability on said policy on account of its ex- istence at its date and delivery of the said deed of trust. Medley v. Insurance Co., 55 W. Va. 365. i. Same Absence of fraud on part of insured. The court instructs the jury that if they believe from the evidence that at the time the application was made for the policy in controversy the agent who took said ap- plication wholly prepared and wrote the same, and that at the time the plaintiff informed him of the incumbrance upon said property, or that, prior to said time, said agent had full knowledge of said incumbrance, then and in that event the answer incorporated into said application, though incorrect in regard to said incumbrance, will afford no defense to said company to this action, in the absence of fraud on the part of plaintiff. Coles v. Insur- ance Co., 41 W. Va. 264. INSURANCE. 271 j. Same Rebuilding property destroyed. The court instructs the jury that whether the policies were delivered by - to - - after the fire, the said - saying to - - at the time of such delivery to collect the insurance money and apply the same to re- building on the mortgaged property, is a question for the jury, and if they believe such was the fact such transfer of the policies by - - to - is not a bar and has no tendency to prevent the plaintiff recovering in this action. Bentley v. Insurance Co., 40 W. Va. 752. k. Same Assignment of policy by insured to secure mortgage debt. The court instructs the jury that if they believe from the evidence that the assignment attached to the face of the policy was made by - - as collateral security to the plaintiff for a mortgage debt on a part of the prop- erty insured and the assignment as written was approved by the defendant company, then the effect of such assign- ment was to give the plaintiff a right to recover in this action whatever sum, after a fire should occur, would have been entitled to recover had no such assign- ment and approval been made, with interest on said sum to the date of the verdict from the time it became pay- able according to the terms of the policy when complied with by said - . Bentley v. Insurance Co., 40 W. Va. 752. 1. Fraud or misrepresentations as to name of insured. The court instructs the jury that if they believe from the evidence that the insured or his agent at the time of the making of said policy knew or believed that the agent of the defendant supposed that J. T. was, in fact, the person whose goods were being insured, and neglected and failed to correct his mistake, and thus misled him as to 272 INSURANCE. the person whose goods were actually insured, then such policy would not be a contract between the plaintiff and the defendant company. Travis v. Insurance Co., 28 \V. Va. 598. m. Fraud or misrepresentations by insured as to value of property. The court instructs the jury that if they believe from the evidence that before and at the time of the making and issuing of the policy of insurance sued on, the plain- tiff, or his agent acting for him in that behalf, represented and stated to defendant's agent who issued said policy and with whom said contract of insurance was wholly made, that the - - about to be insured was worth $ , and if the jury further believe from the evidence that the said agent of the said defendant relied upon said state- ments and representations as to the value of said insured property and issued said policy of insurance relying up- on and confiding in said representations and statements, and if the jury should further find from the evidence that said representations and statements were false and were known to said - - to be false, and that said insured property was worth materially less than said - , and that this fact was known to the said - , (the in- sured), to be false, then the court instructs the jury that such false representations and statements avoid the pol- icy, and the jury should find for the defendant. Travis \. Insurance Co., 28 W. Va. 589. n. Same As to incumbrances. The court instructs the jury that if they believe from the evidence that the property insured, or a material por- tion thereof, was encumbered at the time the application in writing was made by the plaintiff to the defendant for the policy sued on, and that he denied in said application the fact of said encumbrance, and they further believe INSURANCE. 273 that in said application and policy the plaintiff warranted the truth of the statements and answers made in said ap- plication, that then they shall find for the defendant. Coles v. Insurance Co., 41 W. Va. 264. o. Fraudulently altering receipt for premiums. The court instructs the jury that if they believe from the evidence that the plaintiff, - , with fraudulent in- tent, altered the receipt for $ , produced in evidence, then they are to deny him all benefit from the said receipt as evidence of a contract or for any purpose whatever. Sheppard v. Insurance Co., 21 W. Va. 373. p. Increased risks Avoidance of policy because of. The court instructs the jury that if they believe from the evidence that the additional use of the store building for storing and vending farm implements and hardware, sash, doors, etc., without the permission of the defendant company, increased the risk to it, then they shall find for the defendant. Coles v. Insurance Co., 41 W. Va. 264. q. Additional insurance Condition of policy against. The court instructs the jury that although they believe from the evidence that, according to the contract con- tained in the policy sued on, the plaintiff was inhibited from taking out the policies in the - - company and the - - company (other companies) without the con- sent of the defendant indorsed on the policy sued on,' yet if they further find that said policies in the said - and - companies (other companies) contain a clause in the contract in said policies forfeiting or avoiding said policies if plaintiff failed to give notice to said companies, or of either prior or subsequent policies of insurance on said property described in the policy sued on, and said plaintiff did effect either prior or subsequent insurance on the property set out in the policy sued on, and failed to 1>74 INSURANCE. jive notice thereof to said companies, and have their as- sent indorsed on said policies of the - - company and the - - company, then the said subsequent insurance policies will not avoid the policy sued on. Wooljtcrt \. Inxnmnce Co., 42 W. Va. 659. r. Same Knowledge or consent of insurer as to. The court instructs the jury that if they believe from the evidence that when the plaintiff applied to the agent of the defendant for the policy of insurance sued on, the agent of the defendant told him he could take out addi- tional insurance in other companies, and plaintiff, in pur- suance of such permission, did afterwards take out the policies in the - - company and the - - company (other companies) then the omission or failure of said agent or defendant to indorse the said permission or the assent of the defendant company on the policy sued on will not avoid said policy. Wool pert v. Insurance Co.. 1- \V. Va. 659. ' s. Same Illiteracy of insured. The court instructs the jury that if they believe from the evidence that plaintiff could not read or write the English language, and he so informed the agent of the defendant when he made application for the policy sued on, and that the defendant's agent then informed plain- tiff that he could take out additional insurance in other companies, and did not inform him that the assent of the company to such additional insurance must be indorsed on the policy sued on, and did not read said policy to him, and said agent failed to indorse such assent on the policy. then the failure of plaintiff to give notice to the defendant of subsequent insurance, and have the assent of the de- fendant indorsed on the policy sued on, will not forfeit or avoid said policy. WooJfu'rt v. Inxunun-c Co.. 42 W. Ya. 660. INSURANCE. 275 t. Prior insurance Knowledge of agent as to. The court instructs the jury that if they believe from the evidence that at the time the plaintiff applied for in- surance upon the stock of goods, he informed the agent of the defendant company that he had taken out previous insurance in the - company, then the failure of the agent of the defendant to endorse this fact upon the policy cannot avoid the policy sued on. Woolpert v. Insurance Co., 44 W. Va. 736. u. Same Effect of prior policy being void. The court instructs the jury that if they believe from the evidence that the policy issued to the plaintiff by the - company was a void policy, or one upon which there could be no recovery, then the failure of the plain- tiff to inform the defendant of the issuing of the policy sued upon or the taking out of said policy in the - company, cannot affect the plaintiff's right to recover in this cause. Woolpert v. Insurance Co., 44 W. Va. 736. v. Renewal of policy Authority of agent Receipt for renewal. The court instructs the jury that if they believe from the evidence that the receipt for $ , submitted to them in evidence was executed by - - and delivered to the plaintiff, that the said - - was, at the time the receipt was so given, the agent of the defendant to transact the business of insurance for it, and as such receipted for premiums known as renewal premiums, and shall further believe from the evidence that the said receipt was given to renew the policy in the declaration mentioned, they will find for plaintiff whatever amount of loss within the limits of the amount named in the policy they shall find from the evidence was sustained by him by fire between the date of the said receipt and the - - day of , 18 . Sheppard v. Insurance Co., 21 W. Va. 375. 276 INSURANCE. w. Same As to limited power of agents. The court instructs the jury that if they believe from the evidence that a contract of the insurance of the plain- tiff's barn, insured by him as administrator, was made by him with - , with reference to and for the purpose of reinstating or renewing the policy with the declaration filed, so that said policy was continued until after the loss complained of occurred, and shall further believe I'ruin the evidence that the said - - was the general agent of the - - Insurance Company (the defendant) to transact the general business for it, then the plaintiff is entitled to recover whatever loss, within the sum covered by the policy, the jury shall believe from the evidence has accrued to the plaintiff, unless they further believe from the evidence that the general powers of the said agent were so restrained by the company as to prohibit the said agent from making the contract herein first men- tioned, and that the plaintiff had notice of said prohibi- tion. SlH'MHinl v. Insurance Co., 21 W. Va. 376. x. Books and papers Parol waiver of requirements as to where to be kept. The court instructs the jury that if they believe from the evidence in this case, that the policy sued on herein contains a stipulation that "This policy is made and ac- cepted subject to the foregoing stipulations and condi- tions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto, and no officer, agent, or other representative of this com- pany shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or condi- INSURANCE. 277 tions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission af- fecting the insurance under this policy exist or be claimed by the insured unless so written or attached" then the in- surance company can not be deemed to have waived such Iron-safe clause, unless such waiver was so indorsed on or attached to said policy, and any alleged parol waiver is incompetent and should not be considered by you. Maupin v. Insurance Co., 53 W. Va. 566. y. Intentional burning the property insured. The court instructs the jury that it is not necessary in order to prevent the plaintiff's recovery that the plaintiff should be proved, beyond a reasonable doubt, to have in- tentionally and fraudulently caused or permitted the said insured property to be set on fire, but if the weight or preponderance of evidence be to that effect the jury should find for the defendant. Simmons v. Insurance Co., 8 W. Va. 496. z. Awards Repudiation by insured of award Demand of insurer for second appraisement. The court instructs the jury that if after the appraise- ment made by - , - - and - , the plaintiff repudi- ated said appraisement and refused to accept the amount thereof claimed to be chargeable to the defendant, then the defendant had the right, afterwards to insist upon an appraisement to be made by two competent and disinter- ested appraisers, the plaintiff to select one and the de- fendant one, and the two so selected to name an umpire, as provided in lines - - to - , both inclusive of the policy, and if the jury find that the plaintiff, for any cause, refused to accept the result of said appraisal, and that after the knowledge of such refusal the defendant called upon the plaintiff by letter dated , - , to submit to such appraisal as is provided to be made by J7S INSURANCE. said lines - - to - , both inclusive, of the policy, and if the jury further believe from the evidence that the plaintiff has Tailed or refused to enter into such ail appraisal as demanded by said letter, then the plaintiff cannot recover. Levy v. Inxurnnce Co., 58 W. Va. . 1'. PROOF OF LOSS. a. Notice required by the policy How may be given. b. Time for making proof of loss Waiver of notice. c. Same. d. Forthwith notice of loss How construed. e. Awards by arbitrators When evidence of not re- quired. f. Loss covered by insurance How estimated. g. Same. h. Same Burden of proof Preponderance of evi- dence. a. Notice of loss required by policy How may be given. The court instructs the jury that the forthwith notice required by the policy to be given by persons sustaining loss may be given by the assured through an agent, and need not be given by him in person. Land Co. v. Insur- ance Co., 35 W. Va. 677. b. Time for making proof of loss Waiver of proof. The court instructs the jury that the failure to furnish proofs of loss under the policy within thirty days after the fire does not, under all circumstances, and at all events, constitute a bar to the plaintiff's recovery. The defendant, for whose benefit the provision is made, may waive a compliance with it; and, even in the absence of a waiver, a delay for more than thirty days in furnishing the proofs will not be conclusive against the plaintiff's case unless it appears that the plaintiff has unreasonably INSURANCE. 279 delayed furnishing such proof of loss, or that the defend- ant has in some way been prejudiced by the delay. Land Co. v. Insurance Co., 35 W. Va. 677. c. Same. The court instructs the jury that if they believe from the evidence that the plaintiff did not render to the secre- tary of the defendant company a particular statement of the loss within thirty days thereafter, that then the plain- tiff is not entitled to recover in this action, unless they further find that the defendant waived this requirement of the policy. Land Co. \. Insurance Co., 35 W. Va. 679. d. Forthwith notice of loss How construed. The court instructs the jury that the provision in the policy which has been introduced in evidence, requiring persons who have sustained loss by fire to give notice forthwith to the secretary of the defendant, is not to be construed as requiring that such notice should be abso- lutely immediate, but only as requiring that it should be given within a reasonable time, under the circumstances of the case. Land Co. v. Insurance Co., 35 W. Va. 677. e. Award by arbitrators When evidence of not re- quired. The court instructs the jury that under the provisions of the policy which has been introduced in evidence it is not necessary that the plaintiff, in making out his case, should furnish evidence of an award of arbitrators, in the absence of any showing that a submission to arbitrators was requested by either party, and in the absence of any showing that an award was in fact made. Land Co. v. Insurance Co., 35 W. Va. 677. f . Loss covered by insurance How estimated. The court instructs the jury that if they believe from 280 INSURANCE. the evidence that the plaintiff is entitled to recover in this action, they may find a verdict for whatever amount of loss the jury believe from the evidence - - has suf- fered by the fire of - - 18 , with interest on such amount from sixty days after the proofs of loss were re- ceived by defendant company to the date of the verdict. Bentley \. Insurance Co., 40 W. Va. 752. g. Same. The court instructs the jury that if they believe from the evidence that the plaintiff is entitled to recover, their verdict should be for the whole amount of the loss of - by the fire of - - 18 , on all of the insured property estimated according to the actual cash value of such loss at the time of the fire, with interest on such amount from sixty days after the proofs of loss were re- ceived by the defendant company to the date of the ver- dict. Bentley v. Insurance Co., 40 W. Va. 752. h. Burden of proof Preponderance of evidence. The court instructs the jury that the burden of proof is on the plaintiff to make out his case by a preponder- ance of testimony, and that if they find the evidence evenly balanced, their verdict must be for the defendant. In other words, the plaintiff's claim to recover in this action must be established by evidence which, in the opinion of the jury, outweighs the evidence produced by the defend- ant to resist the plaintiff's claim. If therefore, in the opinion of the jury, the weight of evidence on each side is exactly equal, the plaintiff must fail in his recovery. Slieppanl v. Insuarnce Co., 21 W. Va. 374. 3. WAIVER OF RIGHT TO AVOID PAYMENT OF LOSS. a. Waiver of insurer of requirement to furnish state- ment as to other insurance. INSURANCE. 281 b. Knowledge of insurer as to destruction of property by fire. c. Same Kefusal of insurer to pay loss. d. Defective proof of loss Failure to return. e. Refusal of payment on other grounds than failure to furnish proof. a. Waiver by insurer of requirement to jurnish statement as to other insurance held by insured and of require- ment to furnish list of property destroyed. The court instructs the jury that if they believe from the evidence that the plaintiff has not made and rendered to the defendant a statement in writing, signed and sworn to by her, stating all other insurance, whether valid or not, covering any of the property insured by the defend- ant, the cash value of each item of property insured and the amount of loss thereon, then the plaintiff cannot re- cover, unless the jury should further believe from the evi- dence that the defendant waived the furnishing of such statement by such conduct of the defendant as would rea- sonably cause the plaintiff to fairly conclude that such requirements or statements had been dispensed with and excused. Levy v. Insurance Co., 58 W. Va. . b. Knowledge of insurer as to destruction of property by fire Declarations of insurer as to refusal to pay loss. The court instructs the jury that if they bejieve from the evidence that the defendant upon being notified of the destruction of the property insured, sent its adjuster to settle the loss some - - weeks after the fire, and the said adjuster after the examination of the facts and circumstances attending the burning, by his acts and declarations gave the plaintiff to understand, and they were such as would give any reasonable and sensible per- son to understand, that the loss would not be settled with- L |S ._. INSURANCE. out a suit, and that it would not avail him to furnish such proof of loss as is required by the policy, then such proof of loss was waived by the defendant and the failure to furnish it is no defence to this action. Deitz v. Insur- ance Co., 33 W. Va. 532. c. Same Refusal of insurer to pay loss. The court instructs the jury that if they believe from the evidence that the defendant after being notified of the burning of the premises insured, sent its adjuster to set- tle the loss, and said adjuster after an examination of the facts and circumstances attending the burning, notified the plaintiff that the defendant was not liable and would not settle the loss, such notification was a waiver of the proof of loss mentioned by the policy on the part of the defendant, and the failure of the plaintiff to provide such proof is no defence to this action. Deitz v. Insurance Co., 33 W. Va. 532. d. Defective proof of loss Failure to return. The court instructs the jury that if they believe from the evidence that the plaintiff furnished the defendant with a proof of loss, although defective, and not such as is required by the policy sued on, and if they further find that the defendant never returned such proof to plaintiff nor complained of it as being defective, then the defendant waived all defects in said proof and cannot set up the same in defence to this action. Deitz v. Insurance Co., 33 W. Va. 532. e. Refusal of insurer to pay policy on other grounds than failure to furnish proof of loss. The court instructs the jury that if they believe from the evidence that the defendant was notified of the loss accruing to the plaintiff under the policy filed in this case, and that the said policy was renewed or continued by the INSURANCE. 283 said defendant so as to be a subsisting policy at the time the said loss occurred, the plaintiff is entitled to recover whatever loss it may prove covered by the policy and within the limits of the sum mentioned therein, even al- though they shall believe that the proof of said loss re- quired by the conditions of the said policy were not made, provided they shall further believe from the evidence that within the time mentioned in the said policy for the said proofs, the defendant declined to pay the said loss on other grounds than the failure of the plaintiff to furnish the said proof. Sheppard v. Insurance Co., 21 W. Ya. 376. II. LIFE INSURANCE. a. Cancellation of policy by insurer. b. Statute of limitations Plea of by insurer. a. Action by insurer for cancellation of policy Recovery of premiums paid by policy-holder How amount insurer entitled to to be determined. The court instructs the jury that unless they believe from the evidence that the amount of money paid by the plaintiff on the policy during the time it continued in effect exceeded the equitable annual premiums to which the company was entitled for carrying the risk on plain- tiff's life during the time the policy was in force, then they will find for the defendant. Abell v. Insurance Co., 18 W. Va. 411. b. Plea of statute of limitations by insurer What in- sured required to show in support of replication to plea of statute of limitations. The court instructs the jury that to sustain the replica- tion (marked No. 1) to the plea of the statute of limita- tions, it was necessary for the plaintiff to prove that the 284 INSURANCE. defendant resided in this state by being represented by a resident-agent, so that process could be served on it at some period of time previous to the time that the cause of action set forth in the declaration accrued, and that un- less they believe from the evidence that the defendant was at one time a resident of this state, then they will find for the defendant on the issue joined upon said replica- tion. Abell v. Insurance Co., 18 W. Va. 411. III. ACCIDENT INSURANCE. a. Medical treatment of insured by agent of insurer Liability for negligence in. b. Same. c. Same When not at the instance of insured. d. Same. When at the instance of insured. e. Same. f. Sme When physician of insurer exceeds his au- thority Scope of authority of. a. Medical treatment of insured by agent of insurer Liability for negligence in. The court instructs the jury that if they believe from the evidence that Dr. - , as the agent and representa- tive called upon the plaintiff by reason of the provision in the insurance policy issued by the defendant to the plain- tiff, authorizing the defendant to have its surgeon make such examination as he deemed proper, and that the said Dr. - , acting under said provision, did make an exami- nation of plaintiff's foot and ankle and that said Dr. - made such examination and negligently and improperly failed to replace the plaster cast removed by him, and that such examination or failure to replace such cast, or a similar support, resulted in an injury to the plaintiff, then you should find for the plaintiff and assess his damages at INSURANCE. 285 what you deem proper under all the circumstances. Tompkins v. Insurance Co., 53 W. Va. 490. b. Same. The court instructs the jury that if you believe from the evidence that the examination required in the insur- ance policy issued by defendant to plaintiff, comprehended and included by the practice of reasonably skilled sur- geons, such an examination as would leave the injury to plaintiff's foot and ankle and the cast about such injury, in the same condition in which it was found by the defend- ant's surgeon, Dr. - , who made such examination, and the said surgeon failed to leave said foot and ankle, and such cast and treatment therefor, in the condition in which he found them, and that by reason of such fail- ure on the part of said surgeon an injury resulted to the plaintiff, then the defendant is liable therefor. Tompkins v. Insurance Co., 53 W. Va. 490. c. Same When not at the instance of the insured. The court instructs the jury that if they believe from the evidence that the defendant, through its agent, acting upon his own judgment, and not at the request or at the instance of the plaintiff, removed the plaster dressing from the plaintiff's foot before the plaintiff had entirely recovered, and without replacing said dressing, or substi- tute therefor, directed the plaintiff to use his foot, and that the use of the foot as directed without any bandages, support or dressing, caused the injuries complained of, then the defendant is responsible for all damages sus- tained by the plaintiff, directly caused by the removal of the dressing and the use of the foot as aforesaid. Tomp- kins v. Insurance Co., 53 W. Va. 491. d. Same When at the instance of insured. The court instructs the jury that if they believe from 286 INSURANCE. the evidence that the plaintiff at the time of the removal of the plaster cast from his foot, requested said Dr. to treat him for his injury, and that the said Dr. - , upon request and with the consent of the plaintiff and not at the instance and with the approval of said Dr. , removed said cast, and then gave plaintiff direc- tions how to treat and use his said injured foot, that then the plaintiff is not entitled to recover in this action, and the jury should find for the defendant. Tompkins v. In- surance Co., 53 W. Va. 494. e. Same. The court instructs the jury that if they believe from the evidence that the injury complained of was the re- sult of treatment by Dr. - - at the request of the plaintiff, and not at the instance and upon the advice of said Dr. - , then the plaintiff cannot recover. Toinpkins v. Insurance Co., 53 W. Va. 494. f . Same When physician of insurer exceeds his author- ity Scope of authority of. The court instructs the jury that the principal is not responsible for the acts of its agent outside of the scope of his agency, and that all parties dealing with an agent are bound to know the scope of the agency, and if the jury believe from the evidence that the authority and power of Dr. - , from the defendant company was limited, to an examination of and report upon the in- juries sustained by the plaintiff, and plaintiff was bound- to ascertain the extent of said Dr. - 's authority to represent the defendant company, and in so far, if at all, he permitted any action by, or acted upon any advice of said Dr. - , not embraced in said authority, he can- not for such advice or action, or for injuries resulting therefrom, recover damages from the defendant. Tomp- kins v. Insurance Co., 53 W. Va. 494. INTOXICATING LIQUORS. 287 CHAPTER 41. INTOXICATING LIQUORS. a. Receiving orders for sales of intoxicating liquors. b. Unlawful sales to minors Who may maintain suit because of. c. Unlawful sales to husbands Exemplary damages. a. Receiving orders for sales of intoxicating liquors. The court instructs the jury that if they believe from the evidence, beyond a reasonable doubt, that the defend- ant received from - and order for - - gallons of intoxicating liquors in the said county of - , within one year next preceding the finding of the indictment, then you must find the defendant guilty. State v. Swift, 35 W. Va. 544. b. Unlawful sales to minors Who may maintain suit because of. The court instructs the jury that if the mother of a minor son has been injured in her means of support by the intoxication of such son, caused in whole or in part by intoxicating liquors unlawfully sold to him by a liquor dealer, the mother has a right of action against the per- son making such sale, although at the time of such injury she may be living with her husband, on whom she depends in part for support. McMaster v. Dyer, 44 W. Va. 645. c. Unlawful sales to husband Exemplary damages. The court instructs the jury that if they believe from the evidence that the plaintiff was injured in her means of support in consequence of the intoxication, habitual or otherwise, of her husband, caused in whole or in part 288 LANDLORD AND TENANT. by the unlawful selling or giving intoxicating liquors to him by - , they shall find for the plaintiff for all damages sustained and for exemplary damages. Mayer v. Frobc, 40 W. Va. 24G-258, overruling Pegram v. Stortz, 31 W. Va. 220. CHAPTER 42. LANDLORD AND TENANT. a. As to releasing tenant from payment of rent Con- cerning independent covenant requiring landlord to make repairs. b. Injuries to tenant's property caused by defective plumbing. c. Same How damages estimated. a. When tenant not released from payment of rent by failure of landlord to make repairs Independent covenant requiring landlord to make repairs. The court instructs the jury that the defendants are not released from the payment of any rent by the plain- tiff's failure to repair the roof. His agreement to do so was an independent covenant and the defendants could only recover on account of the breach thereof such dam- ages by reason of the breach as they might show in evi- dence to the jury. No such damages have been pleaded or proven in this proceeding, and therefore none can be allowed. Arbenz v. Exley, Watkins & Co., 52 W. Va. 484. b. Injuries to tenant's property caused by defective plumbing. The court instructs the jury that if they believe from the evidence that the plaintiff was a tenant of the defend- LANDLORD AND TENANT LARCENY. 289 ant, and that in consequence of the defective plumbing or want of repairs, or negligence of the defendant, the plaintiff suffered an injury to his property with- out any fault of his own, then the plaintiff is entitled to recover damages for the injury sustained in consequence thereof. Michaelson v. Cautley, 45 W. Va. 534. c. Same How damages estimated. The court instructs the jury that should they find that the defendant is liable to the plaintiff, that the measure of damages for the injury done is that amount that will compensate and make the plaintiff whole the differ- ence in value of the property injured between that which was immediately before the injury done, and that after- wards. Michaelson v. Cautley, 45 W. Va. 534. CHAPTER 43. LARCENY. a. Essentiality of identity of goods stolen. b. Unwilling relinquishment of possession of goods not essential Obtaining goods by false represen- tations. c. Ownership of goods What deemed sufficient to es- tablish. d. Person charged with burglary may be convicted of larceny. a. Essentiality of identity of goods stolen. The court instructs the jury that one of the essential questions involved in this case is the identity of the - alleged in the indictment to have been stolen; and before the jury can convict the prisoner the identity of the ;_'<)< I LARCENY. - must be proved beyond all reasonable doubt. !0 MASTER AND SERVANT. rule that an employe accepts service subject to risks in- cidental to it, and when the appliances or means or methods of work are known to the employe he can make no claim upon the employer to charge them, and if injury results therefrom can recover no damages; yet this does not relieve the employer from the obligation which makes it his imperative duty to warn the employe of danger and instruct him how to avoid the danger, even when the danger is visible and open to observation, if through youth, inexperience or lack of ability, the employe is in- competent to understand fully and appreciate the nature and extent of the danger. Giebell v. Collins Co., 54 W. Va. 526. e. Negligence of fellow-servant. The court instructs the jury that a servant entering the employment of a master assumes all the ordinary risks of such employment and service, and one of such ordinary risks so assumed by the servant is that of liability for negligence of a fellow-servant in a common employment of such master. Daniels v. Railway Co., 36 W. Va. 403. f. Promulgation of rules by fellow-servants. The court instructs the jury that while it was the duty of the defendant railroad company to make and promul- gate proper rules for the protection of its employes yet it was not required that the defendant should see to it, per- sonally, that notice came to the knowledge of all those to be governed thereby, and that if the defendant exer- cised due care and diligence in choosing competent ser- ants to receive and transmit the necessary rules, the negligence by such servants in the performance of it is a risk of the employment that the plaintiff took when he entered the service of the defendant. Oliver v. Railroad Co.. 42 W. Va. 714. MASTER AND SERVANT. 321 g. Increase of risks Master's knowledge of danger Danger unknown to servant. The court instructs the jury that if they believe from ihe evidence that there was a - - standing upon or alongside of the bank of the defendant's railroad in dan- gerous proximity to the track or cars or engines and tender passing over said track whereby the risk of injury to the plaintiff in the discharge of his duties was in- creased beyond the ordinary risks incident to such em- ployment, and that said - - was allowed to remain there after the defendant knew of its situation, or might, by the exercise of reasonable care and diligence, have known thereof, and if they further believe that the plain- tiff received the injury complained of in consequence of such - - having remained there, after the defendant knew or might have known by the use of care and dili- gence of its situation, and that the plaintiff, at the time he received such injury was exercising ordinary care and prudence as a brakeman and was in the discharge of his duties as such at the time the injury occurred, and did not know of the situation of said - - or might not have known of it by the exercise of reasonable care and prudence, then the defendant is liable for said injury. v. R. R. Co., 27 W. Va. 150. h. Right of servant to rely on care of master Careless and needless exposure to risks and danger. The court instructs the jury that the plaintiff's intes- tate had the right to assume his foreman, - , would give all proper attention to his safety, and that he would not be carelessly and needlessly exposed to risks and dangers not necessarily resulting from his occupation, and which might have been prevented, or much dimin- ished by ordinary care and precaution on the part of his master or his representative. Turner v. Railroad Co., 40 W. Va. 680. ;; L ' L > MASTER AND SERVANT. i. Patent danger. The court instructs the jury that if the deceased volun- tarily entered into the service of the defendant as brake- man upon its construction train, then he is held and must be taken to have assumed not only all risks ordinarily iii- cident to the business, but also all other open and visible risks, whether usually incident to the business or not; and if a visible - - caused his injury, partly over the roadway of the defendant, the fact that he had forgotten its existence, or failed to remember it, and thus suffered the injury, furnishes no excuse for the deceased, and the jury should find for the defendant. Woodell v. Impron-- ment Co., 38 W. Va. 38. j. Same When warning as to not necessary. The court instructs the jury that if they believe from the evidence that it was dangerous for the plaintiff to ride upon the truck upon which he was riding when the accident occurred, and dangerous for him to ride thereon in a standing position, and if they further believe that such danger was obvious to the plaintiff, and was under- stood and appreciated by him, the fact that the defend- ant's foreman may have seen the plaintiff, immediately prior to the accident, standing upon the said truck, and may not, at that time, ordered or w r arned him not to ride thereon, give the plaintiff no right to recover in this action because of such failure to so warn. Rccsc \. Kail- ro MASTER AND SERVANT. gine after night, while it was in motion, in violation of a rule of the company, fell and was hurt, but that he would not have been hurt had the engine been standing still, then they must find for the defendant. Overby v. Railway Co., 37 W. Va. 535. p. Concerning sufficient compliance with rules. The court instructs the jury that if they believe from the evidence that the decedent, at the time of the acci- dent, was standing either in the door of the front car as was moving, or looking through the glass in the door, and that he could see ahead of the train as well as if he. had been on the outside, that would be a sufficient compliance with the rule requiring him to take a conspicuous place on the front of the car. McCreery v. Railroad Co., 43 W. Va. 114. q. Proximate cause of injury. The court instructs the jury that if they believe from the evidence that there was a rule of the defendant pro- hibiting its employes from getting on and off moving trains, and that the plaintiff disobeyed that rule, that disobedience of the rule by the plaintiff will not of itself defeat the plaintiff's right to recover, unless it further appears from the evidence in this case that the disobe- dience of said rule was the proximate cause of the injury complained of. Overby v. Raihcay Co., 37 W. Va. 534. r. Burden of proof Preponderance of evidence. The court instructs the jury that where the defense is contributory negligence on the part of the plaintiff's dece- dent, the burden of proving contributory negligence is on the defendant, and to sustain it, it must have a preponder- ance of the evidence, that is from all the evidence in the case. McCreery v. Railroad Co., 43 W. Va. 114. MESNE PROFITS. 333 s. When right to recover not affected by contributory negligence. The court instructs the jury that the right of the plain- tiff to recover in this action, if the jury believe from the evidence that he is entitled to recover, is not affected by his having contributed to the injury complained of, if the jury believe from the evidence that he did contribute to his own injury, unless he was in fault in so doing. Giebell v. Collins Co., 54 W. Va. 525. t. Same Preponderance of evidence. The court instructs the jury that even if they believe from the evidence that the defendant was guilty of negli- gence in allowing a - - to remain in dangerous prox- imity to its road, and that the plaintiff was knocked off the engine by said - - and injured, still the plaintiff is not entitled to recover in this action, if they believe from the evidence that he, by his neglgence contributed directly, in any degree, to the injury complained of; but to bar the plaintiff from recovery, his alleged act of neg- ligence must have been such as he could reasonably expect would result in his injury, and moreover, such negligence must be shown by a preponderance of all the evidence. Rileij v. Railroad Co., 27 W. Va. 154. CHAPTER 50. MESNE PROFITS. a. Allowance for permanent and valuable improvements Improvements when title deemed good. The court instructs the jury that they should not allow the defendant anything for improvements unless such improvements were permanent and valuable, and 334 MUNICIPAL CORPORATIONS. further, also, that unless such improvements were made at a time when there was reason to believe the title good. Botkin v. Arnold, 48 W. Va. 111. CHAPTER 51. MUNICIPAL CORPORATIONS. J. DEFECTIVE STREETS AND SIDEWALKS. 2. CHANGE OF GRADE OF STREETS. 3. SURFACE WATERS DRAINS AND SEWERS. 1. DEFECTIVE STREETS AND SIDEWALKS. a. Ownership of or control of streets. b. Powers, duties and liabilities of municipal corpora- tions. c. Same. d. Same Contributory negligence. e. Same Contributory negligence Burden of proof. f. Care and caution required of municipal corpora- tions. g. Temporary obstructions to sidewalks while being graded. h. Same For grading and paving. i. Improvements made by property owners by direc- tion of city authorities. j. Liability of property owners for injuries caused by excavations in public streets. k. Same When property owner prohibited from fenc- ing off excavations. 1. Same When excavation exists at time of purchase of property. m. Condition of street or sidewalk at time of injury. MUNICIPAL CORPORATIONS. 335 n. Cause of injury Remote cause of injury. o. What necessary for person injured to allege and prove, p. Previous knowledge of person injured of defects. a. Ownership of or control over streets. The court instructs the jury that the mere fact that the side-walk complained of was within the corporate rimits of the defendant town is not sufficient to charge the town with the duty of keeping it in good repair and safe condition. To charge the defendant with that duty, it must be proved in the case that it is within the limits or lines of the public street or road in the town, made so by the council of the town, or that the authori- ties of the town have exercised control over it before the happening of the injury to the plaintiff. Chapman v. Town of Milton, 31 W. Va. 387. b. Powers, duties and liabilities of municipal corpora- tions. The court instructs the jury that when a city is in- corporated, and is given control over the streets and .sidewalks within its corporate limits, and is empowered to provide the means to make and repair them, the cor- poration not only assumes this duty, but by implication agreed to perform it for the benefit and protection of all who may have occasion to use them, and that for failure in the discharge of 'this duty the municipal corporation is responsible to the party injured thereby. Bowen v. City of Huntington, 35 W. Va. 697. c. Same. The court instructs the jury that if they believe from the evidence that the defendant, at the time the accident occurred, was required by its charter to keep the sidewalks therein, at the place where the injury was sustained, in MUNICIPAL CORPORATIONS. good and sufficient repair; that the sidewalk on which the injury occurred was at the time within the corporate limits of the defendant; that the sidewalk at the place where the injury was sustained was out of repair as / alleged in the declaration, and by reason thereof, the plaintiff was injured, then the plaintiff is entitled to re- recover. Panish v. City of Huntinyton, 57 W. Va. 286. d. Same Contributory negligence. The court instructs the jury that our statute imposes an absolute liability upon the defendant, the city of , for any injury sustained by the plaintiff by rea- son of the failure of the defendant to keep the sidewalk in the declaration mentioned in repair; provided, they are satisfied from the evidence in this case that the place of the alleged injury to the plaintiff was within the cor- porate limits of the defendant, and that such sidewalk was, at the time and place where the alleged injury oc- curred, controlled and treated by the defendant as a public sidewalk, and opened as such; and, provided further, that the plaintiff was not guilty of any negli- gence that contributed to such injury. Phillips v. City of Himtington, 35 W. Va. 408. e. Same Contributory negligence Burden of proof. The court instructs the jury that if they believe from the evidence that the sidewalk in the declaration men- tioned was a public sidewalk within the corporate limits of the defendant, the city of - , opened up, treated and controlled by the defendant as such sidewalk; and that the said sidewalk was out of repair, in a bad con- dition and unsafe for travel at the time of the plaintiff's alleged injury, and that by reason of the said sidewalk being so out of repair and in a bad and unsafe condition, the plaintiff was injured, then the plaintiff is entitled to a verdict in this case, unless the jury are satisfied that MUNICIPAL CORPORATIONS. 337 the plaintiff was guilty of contributory negligence on his part, and that such negligence was the proximate cause but not the remote cause of his injury, and the jury is further instructed that the burden of proof of establish- ing such contributor}- negligence is upon the defendant. Foley v. City of Huntington, 51 W. Va. 398. f. Care and precaution required of municipal corpora- tion. The court instructs the jury that the defendant is bound to use reasonable care and precaution to keep and maintain its streets, bridges and sidewalks in good and sufficient repair to render them reasonably safe for all persons in the exercise of ordinary care while passing on or over the same, and if the jury believe from the evidence that the defendant failed to use reasonable care and precaution to keep the sidewalk mentioned in the declaration in such repair and that the injury complain- ed of resulted from that cause as charged in the declara- tion and that the plaintiff sustained damages thereby wjiile exercising such degree of care and caution as under the circumstances might reasonably be expected of one of his age and intelligence, then he is entitled to recover of the defendant in this suit. Parrish v. City of Huntington, 57 W. Ya. 286. g. Temporary obstructions to sidewalks while being graded Necessity for protection and warning against danger. The court instructs the jury that while the defendant, for the purpose of grading the sidewalk in the declara- tion mentioned, might have temporarily obstructed the passage of travel over the same, it was not authorized to leave such street while undergoing such grading in such condition as unnecessarily to expose those who might pass upon it to danger, and that in such condition ;;;JS MUNICIPAL CORPORATIONS. such sidewalk should not have been left without protec- tion or guard or beacon, especially at night, to warn travelers against such danger, and that if such reason- able precautionary measures were not adopted for the safety of the citizens and travelers the defendant was culpable and liable for injuries, if an}', to the plaintiff, without any fault on his part, just as if the defendant had permitted one of its graded streets to become un- safe for want of repairs. Bowcn \. City of Huntingto-n, 35 W. Va. 697. h. Same Grading and paving Requirements of corpor- ation while improvements being made. The court instructs the jury that while the defendant had the right to temporarily obstruct the passage of travel over the sidewalk where the plaintiff's injury is al- leged to have occurred, for the purpose of grading and paving the said sidewalk, it was not authorized to leave said sidewalk, while undergoing such grading and pav- ing, in such condition as unnecessarily to expose those who might pass upon it to danger, and that in such con- dition such sidewalk should not have been left without protection or guard or beacon, especially at night, to warn travelers without knowledge of its condition against such danger, and that, if such reasonable and precautionary measures were not adopted for the safety of such citizens and travelers, the defendant was culpable and liable for injuries, if any, to the plaintiff, if, without such knowledge and without any fault on her part she was injured thereby, tfnoddy v. City of Hun-tington. 37 W. Va. 113. i. Improvements made by property owner by direction of municipal authority Negligence of property owner while improving sidewalks. The court instructs the jury that the defendant has MUNICIPAL CORPORATIONS. 330 the right to improve its sidewalks, which improvement may be made by the city itself or by the abutting lot- owner at the command of the city, and that during the progress of such improvement the absolute liability im- posed on it by section 53 of chapter 43 of the Code is suspended ; and they are instructed that if they find from the evidence in this case that the sidewalk on the - side of - - street, between - - and - - streets, was being improved, at the time and place the injury complained of by an abutting lot-owner, at the command of the city, and that such injury was caused by the con- dition in which the work on such improvement had placed said sidewalk, then they must find for the defend- ant, unless they further find that the work of improve- ment was negligently conducted by the lot-owner, and that such injury was caused by the negligent condition in which such sidewalk was left by the lot-owner in such work of improvement, and without any fault on the part of the plaintiff. Bowen v. City of Huntinyton, 35 W. Va. 696. j. Liability of property owner for injuries caused by an excavation in a public street. The court instructs the jury that if they believe from the evidence that after the excavation of the cellar de- scribed in plaintiff's declaration, and before the injuries complained of therein, the corporation of the town of , by an ordinance duly passed, widened the public street in front of said cellar so as to embrace some six or seven feet of the front part of said cellar, to which widening the defendant consented or acquiesced, and if they further believe from the evidence that the plaintiff fell into that portion of said cellar, so embraced in the public street by the ordinance aforesaid, they must find for the defendant. Beach v. Fankcriberger, 4 W. Va. 719. 340 MUNICIPAL CORPORATIONS. k. Same When property owner prohibited by municipal authority from fencing off excavations. The court instructs the jury that if they believe from the evidence that the defendant was prohibited by an ordinance of the corporation of - , in force before and at the time of the injuries complained of in plaintiff's declaration, from building a fence in front of the cellar described in plaintiff's declaration, and that the defend- ant assented to or acquiesced in said ordinance, and that the plaintiff fell into that portion of said cellar which the defendant was prohibited from fencing as aforesaid, the} r must find for the defendant. Beach v. Franken- berger, 4 W. Va. 719. 1. Same When excavation exists at the time of pur- chase by property owner. The court instructs the jury that if they believe from the evidence that the cellar or hole in which it is al- leged the plaintiff fell and was injured, was made by the owner of the lot, - , over which he built a - house which was burned, and thereby exposed the cellar or hole, in - - 18 , and so continued so exposed till his death, when one of the heirs to whom it was allotted, in 18 , sold it to the defendant, in the same condi- tion it was at the time the plaintiff was injured, then the plaintiff cannot recover in this case. Beach v. Frank- cnberger, 4 W. Ya. 718. m. Condition of street and sidewalk at time of injury Condition before or after injury. The court instructs the jury that the question as to whether or not the street and sidewalk at the place mentioned and described in the declaration on this case was in a reasonably safe condition for the purpose of persons lawfully passing and re-passing over and along the same, both by day and night, must be determined MUNICIPAL CORPORATIONS. 341 from the condition said sidewalk was in at the time the alleged injury complained of by the plaintiff was re- ceived by him, and not from its condition before or after that time. Foley v. City of Euntington, 51 W. Va. 400. n. Proximate cause of injury Remote cause of injury. The court instructs the jury that if they believe from the evidence that the injury to the plaintiff was imme- diately caused by the negligence of the defendant in fail- ing to keep the said road in repair, as charged in the declaration, and that the plaintiff was guilty of some negligence, which may have been the remote but not the proximate cause of the injury, they must find a verdict for the plaintiff. Sheff v. City of Huntington, 16 W. Va. 320. o. What necessary for person injured to allege and prove. The court instructs the jury that the plaintiff need only allege and prove the existence of the defect or want of repair in the sidewalk in the declaration mentioned, and that he was injured thereby without any fault of his own, and that the sidewalk at the place where plain- tiff's injury is alleged to have occurred was under the control of the defendant within its corporate limits, and was by the defendant treated and assumed to be kept in repair as a public sidewalk. Bowen v. City of Hunting- ton, 35 W. Va. 697. p. Previous knowledge of person injured of defects in public highway Want of ordinary care. The court instructs the jury that previous knowledge of a defect in or of the dangerous condition of a street, road or highway by reason of such defect or dangerous condition is evidence tending to show that such person was not using ordinary care, and is to be considered with the other evidence in the case in determining ;t4l_> MUNICIPAL CORPORATIONS. whether the plaintiff was in the exercise of ordinary care at the time of the accident. Wilson v. City of Wheeling, 1! W. Va. 329. 2. CHANGING GRADE OF STREETS. a. Injury to property without owner's consent. b. Authority for establishing grade of streets. c. Establishment of grade prior to purchase of prop- erty. d. Building below established grade. e. Raising property to established grade. f. Market value of property. g. Same. h. When not part of property taken Value of prop- erty before and after inprovements made. i. Enhancement in value of property by grading and paving. j. Same Off-set of damages by accrued benefits. a. Liability for injury to property without owner's con- sent. The court instructs the jury that if they believe from the evidence that the city of - - has injured the prop- erty of the plaintiff, without her consent having been first obtained, that it is your duty to ascertain and de- termine the extent of said injury and by your verdict compensate her for the said injury. Blair v. City of Charleston, 43 W. Va. 73. b. Municipal authority for establishing grade of streets. The court instructs the jury that if they believe from the evidence that the city of - - is granted by the Legislature of West Virginia power to control the grades of streets and the building of houses within its corpor- ate limits, and under such authority established a grade MUNICIPAL CORPORATIONS. 343 for - - street by ordinance duly enacted and recorded and subsequently granted to plaintiff a permit to build on said street, and plaintiff subsequently built on said street below such established grade line, then the plain- tiff can not recover for damages to such house against the defendant by reason of the filling and paving of said street to such grade theretofore established. Blair v. City of Charleston. 43 W. Va. 73. c. Establishment of grade line for street prior to pur- chase of property by person alleging injury Own- er's constructive knowledge of established grade. The court instructs the jury that if they believe from the evidence that prior to the plaintiff's ownership of the property on - - street, the city of - , had by properly enacted ordinance adopted a grade line for said street and that plaintiff had constructive knowledge of this fact, both at the time of her purchase of said prop- erty and at the time of the construction of her houses thereon, and the said city afterwards filled said street and paved same to a grade no higher than the grade there- tofore established, then the plaintiff can not recover for damages alleged to be suffered by reason of said fill and paving of said street. Blair v. City of Charleston, 43 W. Va. 73. d. Same Effect of building below established grade. The court instructs the jury that if they believe from the evidence that the city of - - had established a grade line for - - street and that subsequent to said establishment, the plaintiff acquired lots abutting on said street and voluntarily built houses below the plane of said grade line, and the said city afterwards filled said street to said grade and paved same, then the plain- tiff can not recover for damage to said buildings result- 344 MUNICIPAL CORPORATIONS. ing from said fill and paving. Blair v. City of Charles- ton, 43 W. Va. 73. e. Effect of raising building to grade lower than estab- lished grade. The court instructs the jury that if they believe from the evidence that the plaintiff voluntarily raised her dwelling house without ascertaining the established grade of - - street, to a grade lower than is neces- sary to render the house convenient for ingress and egress, and thereby occasioned the necessity for addi- tional and unnecessary expense in raising said dwell- ing house to a proper grade, then such expense caused by such mistake in the raising of said dwelling hous*; can not be taken into consideration by the jury in arviviug at their verdict. Blair v. City of Charleston, 43 W. Va. 73. f . Decrease of market value of property caused by grad- ing and paving of street. The court instructs the jury that if they believe- from the evidence that the fair market value of plaintiff's property was not decreased by the paving of street by the city of complained of in the declaration, then they shall find for the defendant. Blair v. City of Charleston, 43 W. Va. 73. g. Same. The court instructs the jury that any recovery of dam- ages against a municipal corporation must be based upon pecuniary loss to the person damaged, anl unless they believe from the evidence that the fair market val- ue of plaintiff's property was decreased by the filling and paving of - - street, then they must find for the defendant. Blair v. City of Charleston, 43 W. Va. 73. MUNICIPAL CORPORATIONS. 345 h. Same When no part of property taken Value of property before and after improvements made. The court instructs the jury that when an action is brought to recover damages where no part of the plain- tiff's property has been taken, but simply damaged by a public improvement, damages can not be had unless the property claimed to be damaged has been depreciated in value by the construction of the public improvement. In other words, if the fair market value of the prop- erty was as much after the construction of the improve- ment as it was immediately before the improvement was made, no damage can be sustained, and no recovery can be had. Therefore, in this case, if the jury believe from the evidence that the fair market value of the plaintiff's property was as much immediately after the filling and paving of - - street as it was immediately before, without taking into consideration any improvement plaintiff made while said street improvement was in progress then she has sustained no damages which can be the subject of a recovery in this suit, and they shall find for the defendant. Blair \. City of Charleston, 43 W. Ya. 73. i. Enhancement in value of property by grading and paving. The court instructs the jury that in no view of the case can they award to the plaintiff damages to a greater sum than is sufficient to reimburse her for the decrease, if any, in the market value of her property caused by the filling and paving of - - street; and if the jury believe from the evidence that the changes in the prop- erty claimed by the plaintiff to be necessary to be made and for which she seeks to recover in this action will have the effect to enhance the value of said property beyond what it would have been in case said improvement of the 34(J MUNICIPAL CORPORATIONS. street had not been made, then they can not allow in their verdict any sum for changes which would so en- hance said value. Blair v. City of Charleston, 43 W. Va. 73. j. Same Off-set of damages by accrued benefits. The court instructs the jury that if they believe from the evidence that benefits have accrued to the plaintiff's property by reason of the filling and paving of - street which counterbalance an}' damage which may have been done her property by reason of such filling and grading then they should find for the defendant. Blair v. City of Charleston, 43 W. Va. 73. 3. SURFACE WATERS DRAINS OR SEWERAGE. a. Liability of casting surface water upon an indi- vidual. b. Drains or sewerage for carrying away water from cellars. c. Same Raising grade of streets. d. Same Injuries resulting from other causes. a. Liability of a municipal corporation for casting sur- face water upon the property of an individual. The court instructs the jury that in disposing of sur- face water, a municipal corporation has no right, by any means whatever, to collect and cast the same upon the property of an individual. Clay- v. City of St. Allans, 43 W. Va. 546. b. Drains or sewerage for carrying away water from cellars. The court instructs the jury that the law does not require the city of - - to furnish a drain or sewer to MUNICIPAL CORPORATIONS. 347 carry away water from the cellar on the premises in the plaintiff's declaration described, or away from said premises. Jordan v.. City of Bcmcood, 42 TV. Va. 322. c. Same Raising grade of street. The court instructs the jury that the fact that the city of - - raised the grade of - - street and of alley , so as to prevent water flowing from the cellar on .the premises in the plaintiff's declaration described, or away from said premises, upon said street or said alley, will not, of itself, entitle the plaintiff to recover damages in this action. Jordan v. City of Ben-wood, 42 W. Va. 322. d. Same Injuries resulting from other causes. The court instructs the jury that if they believe from the evidence that the city of , since , , and before the bringing of this suit, has dam- aged the premises described in the plaintiff's declaration otherwise than by preventing the water from flowing therefrom upon - - street or upon alley - , their verdict must be for the defendant. Jordan v. City of Benwood, 42 W. Va. 322. 348 NATURAL GAS. CHAPTER 52. NATURAL GAS/ a. Gas furnished for domestic purposes Dangerous substances Care and skill required in its opera- tions. b. Same. c. Same Amount of pressure Requirements as to. d. Same. e. Defective fittings and appliances put in by con- sumer Increased pressure Leakage or escape of gas Explosions. f. Same. g. Same. h. Same Obligation of consumer to keep fixtures and appliances in proper condition. i. Inferences as to increased pressure, j. Contributory negligence, k. Same Burden of proof. 1. Same Mutual negligence Burden of proof. a. Gas furnished for domestic purposes Dangerous sub- stance Care and skill required in its operations. The court instructs the jury that a corporation or per- son furnishing natural gas to the stoves, heaters, burners, pipes, lines of pipe, machinery, or apparatus of another, to be used for the purpose of domestic heat and fuel in a dwelling house, is bound to exercise such care, skill, and diligence in all its operations as is called for by the delicacy, difficulty and dangerousness of the nature of its business, in order that injury may not be occasioned to others; that is to say, if the danger, delicacy, and diffi- culty is extraordinarily great, extraordinary skill and diligence is required. Barrickman v. Oil Co., 45 W. Ya. 643. NATURAL GAS. 349 b. Same. The court instructs the jury that it was the duty of the defendant, as it is of all incorporated companies which are invested for their own profit and advantage with the great and important privilege of supplying a community with natural gas for private habitation, to be used as fuel and domestic heating, to exercise such care, diligence and skill in the conduct of its business as is proportioned to the danger or risk to the property, of others. Barrickman v. Oil Co., 45 W. Va. 644. c. Same Requirements as to amount of pressure. The court instructs the jury that if they believe from the evidence that natural gas is a very dangerous, vola- tile, and explosive substance, then the person or corpora- tion which furnishes it for valuable consideration to the stoves, heaters, burners, pipes, lines of pipe, machinery or apparatus of another, for the purpose of fuel for do- mestic heat,' must use such care, skill, attention and dili- gence in order that no greater amount of pressure thereof shall be so furnished than is proper to be furnished, and in order to prevent injury to the person or property of others, as is proportioned to the danger of such sub- stances. Barrickman v. Oil Co., 45 W. Va. 644. d. Same Machinery, appliances and work required. The court instructs the jury that if they believe from the evidence that natural gas is an extremely dangerous substance, and that the defendant, at the time of the burning alleged in the declaration, was furnishing, for a valuable consideration, such gas to the heaters, burners, stoves, grates, pipes, lines of pipe, machinery or appara- tus of the plaintiff, for the purpose of using such gas as fuel for domestic heat in and about the dwelling house mentioned in the declaration at the time of such burn- ;;;,() NATURAL GAS. ing, then it was the duty of the defendant, under the law to use such care, diligence and skill, both in providing proper machinery, regulators and apparatus, work, labor, and attention, in order to control such gas, and the amount of pressure furnished to such dwelling house, as is in due proportion to the nature of the substance used. Ban-id; in t was negligent as claimed by the plaintiff in his declaration. Barrickman v. Oil Co., 45 W. Va. (J53. i. Inferences as to increased pressure. The court instructs the jury that the mere fact that the house of the plaintiff was set on fire is not sufficient to justify the inference that an increased pressure of gas caused the fire. Barrickman v. Oil Co., 45 W. Va. 648. j. Contributory negligence. The court instructs the jury that if they believe from the evidence that at the time of the fire which destroyed plaintiff's house, the plaintiff's tenant was guilty of neg- ligence in not keeping and maintaining pipes, valves, fix- tures and appliances placed on the premises of the said plaintiff for the purpose of conducting the said gas from the defendant's main into said dwelling house on said premises in good order and repair, and if the said neg- ligence of the said tenant, in whole or in part, caused or occasioned the injury complained of and described in the declaration in this cause, the plaintiff can not re- cover, and the jury should find for the defendant. Bar- rickman v. Oil Co., 45 W. Va. 649. k. Same Burden of proof. The court instructs the jury that the burden of prov- ing contributory negligence rests with the defendant, but the jury may look to all the evidence offered by both parties to determine the question of contributory neg- ligence. Barrickman v. Oil Co., 45 W. Va. 646. 1. Same Mutual negligence Burden of proof. The court instructs the jury that in this case negli- gence is the ground of the plaintiff's action, and that it therefore rests upon the plaintiff to trace the fault of his injury to the defendant, by proving negligence upon 354 NEGOTIABLE INSTRUMENTS. the part of the defendant, and for this purpose he must show the circumstances under which the injury oc- curred; and if from these circumstances so proven by the plaintiff, and from all the evidence, including the evidence of the defendant, it appears that the fault of the injury was mutual, or in other words, that the neg- ligence is fairly imputable to the plaintiff or his tenant, the plaintiff cannot recover. Barrickman v. Oil Co., 45 \V. Va. 651. CHAPTER 53. NEGOTIABLE INSTRUMENTS. a. Joint promissors When party liable as. b. Same Right to recover proportionate part of amount paid. c. Whether liability that of indorser or joint maker. d. Same Burden of proof. e. Same As to indorser. a. Joint promissor When party liable as. The court instructs the jury that when - - put his name on the back of the note sued on in this case he thereby intended to become bound for its payment in some form; and if the jury believe from the evidence that said note was delivered to the plaintiff before maturity, in its present form, in the absence of proof of an under- standing, known to the plaintiff or his agent, that said - was to be bound in any particular manner, then the plaintiff has the right to charge him as joint promisor or maker along with the other parties whose names ap- pear upon the said note, and they must find for the plain- tiff. Grocery Co. v. Watkins, 41 W. Va. 792. NEGOTIABLE INSTRUMENTS. 355 b. Right of one joint promissor to recover from another proportionate part of amount paid on joint note. The court instructs the jury that if they believe from the evidence that the plaintiff, - - and defendant, , jointly and severally agreed to pay to the - bank the remaining balance of the original debt, and that the same was afterwards paid by plaintiff, then plaintiff has the right to recover from the defendant one-half of such amount paid by him by reason of such joint and several obligation. Bartlett v. Armstrong, 57 W. Va. . c. Whether liability that of indorser or joint maker Consideration of contents of notice of protest. The court instructs the jury that if they believe from the evidence that the defendant indorsed his name on the back of the note sued on as indorser, and not as joint maker thereof, and that at the time said note wius de- livered to the plaintiff he knew the said defend-in', in- dorsed the said note as an indorser thereon, and nr>r as a joint promisor, and that the said plaintiff had said note regularly protested, and had notice sent to t':( de- fendant, as indorser of such protest, then the jury may consider said facts along with the other evidence in the case, and if they believe from the evidence that the said defendant was an indorser on the note sued on, and not a joint maker or promisor, they should find for the defendant. Grocery Co. v. Watkins, 41 W. Va. 793. d. Same Burden of proof. The court instructs the jury that the burden of proof is upon the defendant to prove that when he put his name on the back of the note in suit, before its delivery to the plaintiff, he intended to become bound only as guarantor or indorser or otherwise than as joint 356 NUISANCE. promisor or maker along with the other parties to said note, and that he must show that such understanding was had with the plaintiff. Grocery Co. v. Watkim, 41 W. Va. 792. e. Notice of protest not necessary to be given to a joint promissor. The court instructs the jury that if they believe from the evidence that the defendant is bound as joint promisor or maker of the note sued upon, then no notice of protest was necessary to be given to the defendant. Grocery Co. v. Watkins, 41 W. Va. 792. CHAPTER 54. NUISANCE. a. House kept for entertaining prostitutes Improprie- ties permitted in house When liquor license fails to excuse keeper of disorderly house. The court instructs the jury that if they believe from the evidence, beyond a reasonable doubt, that the defend- ant kept a room in her hotel near the bar, for the pur- pose and with the intent of bringing together and en- tertaining prostitutes and men desirous of their com- pany, and that such persons were in the habit of as- sembling there to drink and play cards together, then the jury should find the defendant guilty, even though they may believe that the house was kept quietly and no conspicuous improprieties were permitted inside. And the fact that she had a hotel or liquor license cannot excuse the defendant, provided the jury find the house disorderly. State v. Mcgahan, 48 W. Va. 442. OIL AND GAS LEASES OIL WELLS. 357 CHAPTER 55. OIL AND GAS LEASES. a. Machinery and fixtures Reasonable time given lessee to remove same from leased premises. The court instructs the jury that the plaintiff's were not deprived of the right to remove the property demanded in the declaration, under the evidence offered to the jury,, if, from such evidence, the jury shall believe such property was placed upon the leased premises for the purpose of drilling or operating for oil and gas, by reason of the fact that a decree was entered by the circuit court of county, on or about the day of , , in an equity suit brought by the defendant against the plaintiff for such purpose, and that the plaintiff would be entitled to a reasonable time after the termination of the suit in equity to remove said property from the leased premises. Gartland v. Hickman, 56 W. Va. 82. CHAPTER 56. OIL WELLS. a. Abandonment of work on wells. b. Same Agency Acts, declarations and conduct of. a. Abandonment of work on wells Hired tools Duty of party renting to return to owner. The court instructs the jury that if they believe from the evidence that the defendant had hired the plain- tiff's tools and had quit work on the well in question, 358 OIL WELLS. and had not purchased said tools, it was the duty of the defendant to immediately return the tools to the plain- tiff, and so notify the plaintiff, and in case he failed to do so, then, in that event the jury should find for the plaintiff. Coulter v. Blatchlcy, 51 W. Va. 165. b. Same Agency Acts, declarations and conduct of agent. The court instructs the jury that if they believe from the evidence that - - was the agent of the defendant in charge at the well in controversy, and that said agent had placed - - in charge of said well temporarily in his absence, and never returned to assume the manage- ment of said well, and never discharged - - from the managing and looking after said well, and that said - was never discharged by the defendant from said management, and that the defendant ratified the act of the said agent, then, in that event, the acts, declarations and conduct of said - - in managing and controlling said well would bind the defendant, and the jury should find for the plaintiff. Coulter v. Blatchley, 51 W. Va, 166. PARENT AND CHILD. 359 CHAPTER 57. PARENT AND CHILD. 1. SALE OP INTOXICATING LIQUORS TO MINORS. 2. SEDUCTION OF MINORS. 1. SALE OP INTOXICATING LIQUORS TO MINORS. a. Right of action by mother of minor son. b. Loss of means of support. c. Unlawful sales Liquor dealer's knowledge of. d. Exemplary damages. e. Allegations and proof. a. Right of action against liquor dealer by mother oS minor son. The court instructs the jury that if the mother of a minor son has been injured in her means of support by the intoxication of such son, caused in whole or in part by intoxicating liquors unlawfully sold to him by a liquor dealer, the mother has a right of action against the person making such sale, although at the time of such injury she may be living with a husband, on whom she depends in part for her support. McMaster v. Dyer, 44 W. Va. 645. b. Same Loss of means of support. The court instructs the jury that if they believe from the preponderance of the evidence that the defendant has injured the plaintiff, in person or in means of sup- port, in manner and form as alleged in the declaration, by unlawfully selling to her minor son, , intoxicating liquors, as alleged, and that his intoxication was caused, in whole or in part, by intoxicating liquors 360 PARENT AND CHILD. unlawfully sold to him by the defendant, as in the decla- ration alleged, and that such injury was the result of such intoxication, the jury should find for the plaintiff. McMaster v. Dyer, 44 W. Va. 646. c. Concerning liquor dealer's knowledge of unlawful sales. The court instructs the jury that a sale of intoxicating liquors by a liquor dealer to a minor is unlawful, if at the time of such sale the liquor dealer knows, or has reason to believe that the purchaser is a minor Mo- Master v. Dyer, 44 W. Va. 646. d. Exemplary damages Definition of. The court instructs the jury that if they believe from the preponderance of the evidence that the plaintiff is the mother of - , that he is a minor, and that the defendant, by himself or by his clerk, or any one acting under his authority, unlawfully sold to the i;aid - - on the - - day of - , 18 , at the defendant's place of business, at - , in this coun- ty, intoxicating liquors, and that the said intoxicating liquors, in whole or in part, caused the intoxication of the said - , and that by reason of such in- toxication the plaintiff was injured, in person or in means of support, in manner and form as in the decla- ration alleged, then the jury should find for the plain- tiff, and assess in her favor such damages as the jury should find from the evidence she has sustained by rea- son of such intoxication, and also exemplary damages, but not exceeding altogether - - dollars. By 'exem- plary damages' is meant such damages as should be in- flicted upon a wrongdoer as a warning to him and others to prevent a repetition or commission of similar wrongs. McMaster v. Dyer, 44 W. Va. 646. PARENT AND CHILD. 361 e. Allegations and proof. The court instructs the jury that if they believe from a preponderance of the evidence that the allegations of the plaintiff's declaration have been substantially proved, then the jury should find for the plaintiff. McMaster v. Dyer, 44 W. Va. 646. 2. SEDUCTION OF MINOR. a. Loss of services Relinquishment of control of minor. b. Exemplary damages. a. Loss of services of minor by parent Concerning parent 's relinquishment of control of minor. The court instructs the jury that if they believe from the evidence that the daughter of the plaintiff was se- duced by defendant whilst at the defendant's house and in his employ, and that she was under the age of twenty- one years, then unless the evidence in this case should satisfy you that the plaintiff had relinquished all con- trol over the daughter and all right to her services, the law presumes that the plaintiff is entitled to her servi- ces, and any loss of services sustained by the plaintiff occasioned by such acts of seduction does entitle the plaintiff to recover. Riddle v. McGinnis, 22 W. Va. 262. b. Same Exemplary damages. The court instructs the jury that if they believe from the evidence that the plaintiff did sustain loss of services of his daughter, and that such loss of services was oc- casioned by the seduction and wrongful act of the de- fendant, then you may take into consideration the shame, loss of respect and mortified feeling of the plaintiff, and give such exemplary damages as you may believe the plaintiff entitled to. Riddle v. McGinnis, 22 W. Va 262. 362 PHYSICIANS AND SURGEONS. CHAPTER 58. PHYSICIANS AND SURGEONS. a. Degree of care and skill required Special agree- ments. b. Dismissal of physician from control of case. a. Degree of care and skill required Special agreement Inference as to negligence. The court instructs the jury that it is claimed by the plaintiff that the defendant was employed to treat pro- fessionally, as a surgeon, his injured - . By the de- fendant accepting the employment he bound himself to use in his treatment of the - - a reasonable, ordinary degree of care and skill of the profession in his com- munity, but he did not undertake to use the highest de- gree of care and skill, nor, in the absence of a special agreement, did he undertake to perform a cure. Nor can you infer that the defendant was negligent simply because a cure was not effected. The burden of proving his case rests upon the plaintiff. Laicson v. Conaway, 37 W. Va. 163. b. Dismissal of physician from control of case Care and skill exercised prior to dismissal. Tin- court instructs the jury that if they believe from the evidence that the plaintiff, on the - - day of , 18 , discharged the plaintiff from the manage- ment and treatment of his - , and if you further find from the evidence that prior to the said date of dis- missal of defendant by the plaintiff, the defendant exer- cised the ordinary care, skill and diligence of his pro- fession in his community in the management and treat- RAILROADS AND RAILROAD COMPANIES. 363 ment of the - , then you must return a verdict for the defendant. Lawson v. Conaway, 37 W. Ya. 164. CHAPTER 59. RAILROADS AND RAILROAD COMPANIES. I. INJURIES TO PERSONS ON OR NEAR TRACK. II. EJECTMENT OP PERSONS FROM FREIGHT TRAINS. , III. INJURIES TO ANIMALS. IV. CAUSING LOSS OF PERSONAL PROPERTY. V. INJURIES TO REAL ESTATE. VI. INJURIES TO WATER MILLS. VII. CONSTRUCTION OF CROSSINGS AND CATTLE GUARDS. I. INJURIES TO PERSONS ON OR NEAR TRACK. a. Injuries caused by failure to give sufficient warn- ing to avoid danger. b. Use of track as footpath Duty of person so using to exercise care and precaution. c. Same Risks assumed by persons using track as a footpath. d. Same Requirements to look for approaching trains Contributory negligence. e. Same. f. Warning signals Statutory requirements as to. g. Same Failure to give warning signals. h. Injuries to persons while trespassing on track Duty of engineer and fireman to keep constant lookout for children. i. Same. j. Same As to contributory negligence. k. Same As to contributory negligence. 364 RAILROADS AND RAILROAD COMPANIES. 1. Assessment of damages, m. Gross negligence Contributory negligence, n. Same. o. Concerning duty of persons to stop, look and listen Presumption as to. a. Injuries caused by failure to give sufficient warning to avoid danger Necessity for establishing negli- gence. The court instructs the jury that to enable the plain- tiff to recover the jury must find from the evidence that the defendant negligently, with force and violence, drove its locomotive engine without ringing its bell or blowing its steam whistle for a sufficient time to give due notice to the said plaintiff of the approach of the said locomotive up- on and against the said plaintiffs and the horse and wagon which the said plaintiff was then and there driving along said public road, and over the said public railroad cross- ing, and that by means of such engine being so negligently driven, as aforesaid, against and upon the plaintiff and his horse and wagon, the said horse was and became greatly frightened and ran away with and overturned plaintiff's wagon, throwing him out and injuring him. Beyel v. Railroad Co., 34 W. Va. 545. b. Use of track as a footpath Duty of person so using to exercise care and precaution. The court instructs the jury that every person of ordi- nary intelligence is bound to know that a railroad yard, with its numerous switches, tracks, and appliances where engines, cars and trains are frequently passing and repassing, is a place of more than ordinary danger, and it becomes his legal duty, if he goes on such yard, to use corresponding care and caution to avoid injury; and even though the defendant company, in this cause, may have permitted persons to pass along and over its tracks in said yard, still, if the jury believe from the evidence RAILROADS AND RAILROAD COMPANIES. 365 that deceased was walking along on the track in the yard and using the same as a footpath on going from one part of the town to another, it was negligence on his part to employ such track in said yard for such purpose without exercising the greatest care and caution to discover the ap- proach of trains and avoid being struck by them. Spicer v. Railway Co., 34 W. Va. 520. c. Same Risks assumed by persons using track as a footpath. The court instructs the jury that persons who live in the vicinity of a railroad and use the tracks or spaces between the tracks as a footpath, although used by the public generally, without objection on the part of the railroad company ; go there at their own risk and enjoy the license subject to the perils. Spicer v. Railway Co., 34 W. Va. 520. d. Same Requirements to look for approaching trains Contributory negligence. The court instructs the jury that it is the duty of a person either about to cross or walk along a railroad to look in every direction from which a train may approach before going upon a railroad, and if he fail to look, when he could have seen the approaching train if he had looked, it is such proximate contributory negligence as will pre- vent him from recovering any damages for injuries sus- tained by being struck by a train immediately after go- ing upon the track, unless the servants of the railroad could have seen or discovered him in time to avoid his negligence in getting upon the railway track. Spicer v. Railway Co., 34 W. Va. 520. e. Same. The court instructs the jury that if they believe from 360 RAILROADS AND RAILROAD COMPANIES. the evidence that the plaintiff's intestate was walking along the railroad tracks of the defendant company with- in what is known as the ' - railroad yard" used by the defendant for the purpose of switching and making up trains; and that there were several tracks and numerous switches therein, and trains almost constantly passing and re-passing over and along the said tracks at all hours of the day and night; and while he was so walking along the said tracks in the said yard, in order to avoid one train coming towards him along one of the tracks, he stepped over onto another track, directly in front of a train going east, without looking back to see if there was such a train on such track; and that, if he had so looked back, he could have seen the train that struck him before he stepped onto such track, and have avoided being struck by it, then such failure to so look back was negli- gence on the part of said decedent ; and, unless the jury, find from the evidence that the said decedent was seen, or could have been seen, by the trainmen in charge of the train that struck him for a sufficient length of time after he stepped on the track in front of the train, before he was struck, to have enabled them to stop the train, before he was struck, or give decedent sufficient warning to get off the track, then they must find for the defendant. Npicer v. Railway Co., 34 W. Va. 521. f. Warning signals Statutory requirements as to. The court instructs the jury that the statute of West Virginia does not require both the sounding of the whistle and the ringing of the bell on an engine or train approach- ing a public street or crossing; either the sounding of the whistle or the ringing of the bell for a time sufficient to give notice of the approach of such train before such street or crossing is reached, is sufficient. Spicer v. Rail- way Co., 34 W. Va. 520. RAILROADS AND RAILROAD COMPANIES. g. Same Failure to give warning signals. The court instructs the jury that if they find from the evidence that decedent was injured while walking upon the track of defendant's railway not in a public road or crossing of a public road, the fact that no signals were given by the servants in charge of the defendant's train for the crossing of - street would not be such neglect as would render the company liable for the injury to the decedent, unless the servant in charge of defendant's train knew, at the time the train was being backed, or could have known, by the exercise of care, caution and prudence, that decedent was on the track, and then failed to give any signals or warning to him of the approach of the train. Spicer v. Railway Co., 34 W. Va. 521. h. Injuries to persons while trespassing on track Duty of engineer and fireman to keep constant lookout for children. The court instructs the jury that according to the law of West Virginia it is the duty of the engineer and fire- man on an engine to keep a constant lookout ahead for chil- dren that may be trespassing on the railroad track, so as to avoid injury to them, if possible ; and if they neglect to do so the railroad company employing them is liable for any injury caused by their negligence. Davidson v. Railway Co., 41 W. Va., 411. i. Same. The court instructs the jury that even if the plaintiff's decedent was in the position of a trespasser on the de- fendant's property, yet it was the duty of the defendant to exercise ordinary care to avoid injury to him; there- fore if the jury believe from all the evidence that decedent could have been seen by the engineer or fireman on the engine mentioned in the evidence by the exercise of ordi- nary care in time to stop the engine and avert the acci- 368 RAILROADS AND RAILROAD COMPANIES. dent, it was their duty to do so, and if they neglected to keep a constant lookout ahead, and thereby failed to see him in time to stop, the defendant railway company is liable, and the jury should find for the plaintiff. David- son v. Kuilinui Co.. 41 W. A'a. 411. j. Same. The court instructs the jury that even if the plain- tiff's decedent was in the position of a trespasser on the defendant's property, it was the defendant's duty to exer- cise ordinary care to avoid injury to him. Therefore, if the jury believe from all the evidence in this case that the engineer or fireman on the engine mentioned in the evidence did see the hand car mentioned in evidence, on which the said decedent was riding, in time to stop the engine and avert the accident, it was their duty to stop the engine as soon as possible, and if they could have stopped it in time to avoid the injury to him by the exercise of ordinary care, and neglected to do so, the defendant is lia- ble and the jury should find for the plaintiff. Davidson v. It'ii heay Co., 41 W. Ya. 411. k. Same As to contributory negligence. The court instructs the jury that if they believe from the evidence in this case that the plaintiff permitted his decedent, a boy of nine years of age, to go from his home at - , after or to get - , but did not know that he was going to ride on a hand car, he, the plaintiff, is not by reason of such permission, guilty of contributory negligence, and the defendant cannot be relieved from liability solely because the plaintiff thus permitted his said son to go from home. Davidson- v. Railway Co., 41 W. Va.411. 1. Assessment of damages. The court instructs the jury that if they find for the plaintiff, they will assess his damages at such sum as they RAILROADS AND RAILROAD COMPANIES. 369 may deem just and right so as not to exceed the sum of $ . Davidson v. Railway Co., 41 W. Va. 412. m. Gross negligence Contributory negligence. The court instructs the jury that they are entitled to consider all the facts and circumstances proven, for the purpose of determining whether the defendant was guilty of negligence. If they believe that - - was killed by a train operated by the defendant on the - - day of - , 19 , at - , and should they find that defendant was guilty of gross negligence, under the circumstances, they should find for the plaintiff, unless said - - was guilty of negligence which directly contributed to his death. Mc- Ycy v. Raihcay Co., 46 W. Va. 120. n. Same. The court instructs the jury that if they believe from the evidence that defendant's train killed - - on the night of - , - , at - , and that such train was not, under the circumstances shown in evidence, run with reasonable care to prevent accidents, this will render defendant liable for his death, unless it was shown either by the evidence of plaintiff that said - - was guilty of negligence which w r as in part the cause of his death, or de- fendant has shown such negligence by a preponderance of the testimony. McVey v. Railway Co., 46 W. Va. 120. o. Concerning duty of person injured to stop, look and listen Presumption as to. The court instructs the jury that there is no presump- tion that a deceased person, killed by a train of cars, did not stop and look towards a train; and failure on part of the plaintiff to offer proof that he did look does not create such presumption, unless the evidence shows that he must have seen the approaching train if he had looked in its direction. McVey v. Railway Co., 46 W. Va. 120. 370 RAILROADS AND RAILROAD COMPANIES. JI. EJECTMENT OF PERSONS FROM FREIGHT TRAINS. a. With whom power or authority to eject rests. b. Same. c. When instruction of railroad companies do not take away the power or authority of conductors. a. In whom power or authority to eject rests. The court instructs the jury that in absence of proof to the contrary, the power or authority to eject any and all trespassers from the freight train upon which the plaintiff was attempting to ride, after the train had been signalled to leave the yard at - , by the conductor, and going - - on the main track on its regular trip, and upon which said conductor had taken his position, belonged to the conductor thereof, and as such conductor, he could not exercise his power or authority so as needlessly or wantonly to cause injury to another, even to a trespasser on his train; and if the jury believe from the evidence that such conductor did exercise such power or authority by commanding or ordering said plaintiff to be kicked or forced from said train while the said train was going at such a rate of speed as to make it unsafe or dangerous to life or limb to thus eject said plaintiff from said train, and if the jury further believe that plain- tiff was so forced or ejected from said train and thereby and in consequence thereof said plaintiff sustained per- sonal and physical injury, the jury are authorized under such circumstances, to find a verdict for the plaintiff, and to assess his damages as such sum as the evidence may justify, not to exceed the sum laid in the declaration. Landers v. Railroad Co., 46- W. Va. 498. b. Same. The court instructs the jury that when a railroad train is running on the main line of its road in the course of its regular run, and is manned by a conductor, engineer, fireman, and brakeman, like the one shown in the evi- RAILROADS AND RAILROAD COMPANIES. 371 dence here, in the absence of proof to the contrary, all power to eject rests impliedly, under the law, with the conductor, and such power must be exercised either by such conductor or by some one else acting under his order or command. Landers v. Railroad Co., 46 W. Va. 498. c. When instructions of railroad company do not take away the power or authority of conductors. The court instructs the jury that the special instruc- tion offered in evidence, reading as follows: "Agents and yard masters will have charge of and direct move- ment of all trains and trainmen in - - - and authority implied, possessed under the law by the con- ductor of a through freight train to protect and care for his own train, while the same may have been on the main track, going on its regular run - - , with the conductor and the rest of the crew aboard, after the yard master had signalled the conductor to leave, then such conductor, after his train had started and was mov- ing on the main line on its through run (although it may have been at the time within the yard limits of the rail- road company), had the authority to order a trespasser from its train; and if the jury believe from the evidence that said conductor ordered the plaintiff ejected from his said train under such circumstances, then such conductor was acting in the line of his duty, and within the scope of his duty, and implied powers, in the absence of evi- dence conferring such authority upon some one else then on the said train. Landers v. Railroad Co., 46 W. Va. 499. III. INJURIES TO ANIMALS. a. Injuries occurring on track. b. Injuries occurring at private crossings Gross neg- ligence. c. Same. 372 RAILROADS AND RAILROAD COMPANIES. a. Injuries occurring on track. The court instructs the jury that if they believe from the evidence that the plaintiff's cattle wandered upon the railroad of the defendant without his knowledge, and being there were killed or injured by a passing train of cars in charge of the defendant's servants; and if they further believe from the evidence that the servants of the defendant in charge of the train could, by the exer- cise of reasonable care and precaution, after they saw the cattle of the plaintiff on the railroad track, have avoided injury to them, and they failed to use such reasonable care and precaution, the jury should find for the plain- tiff. Hawker v. Railroad Co., 15 W. Va. 642. b. Same Injuries occurring at private crossing Gross negligence. The court instructs the jury that if they believe from the evidence/ that the plaintiff suffered his cattle to wander on the railroad track of the defendant, at a crossing, at a time when a passenger train was due, and that the plain- tiff knew that the passenger train was accustomed to pass at the time the cattle were suffered to wander on said railroad, this constitutes negligence on the part of the plaintiff, and the railroad company cannot be held liable in damages for any injury to the plaintiff's cattle from being struck by the train under such circumstances, un- less the jury believe from the evidence that such cross- ing was a private crossing in a lane leading from one field of plaintiff's farm to another, constructed and used for that purpose, by the authority and with the con- sent of the defendant, and that the injury to the cattle was caused by the gross negligence of the defendant. Baylor v. Railroad Co., 9 W. Va. 274. c. Same. The court instructs the jury that if they believe from RAILROADS AND RAILROAD COMPANIES. 373 the evidence that the cattle of the plaintiff wandered on to the railway track of the defendant, at the crossing in the declaration mentioned, in front of an approaching passenger train, when the engine was within - - feet, or thereabouts, of said crossing, and that the said pass- enger train could not have been checked or stopped, so as to have prevented the injury, in the space of - - feet, or thereabouts, by the ordinary appliances, then the defend- ant is not liable for killing the plaintiff's cattle at said crossing, and the jury should find for the defendant, unless they further believe from the evidence that after the de- fendant discovered that the said cattle were about to come upon the track, they might, by the exercise of proper care and prudence, have prevented the injury. Baylor v. Rail- road Co., 9 W. Va. 276. IV. CAUSING LOSS OF PERSONAL PROPERTY. a. Burden of proof Preponderance of evidence. b. Ordinary care When exercised, defendant not lia- ble. a. Burden of proof Preponderance of evidence. Tha court instructs the jury that the burden of proof is on the plaintiffs to show the negligence complained of, and if they have failed to show by a preponderance of the evi- dence, that the accident resulted from the negligence of the defendant, their verdict must be for the defendant. Fawcett v. Railway Co., 24 W. Va. 757. b. Same. The court instructs the jury that if they believe from the evidence that the defendant, by its agents and ser- vants, was operating its road in such manner as prudent and reasonable agents would operate it under like circum- stances, and said agents and servants were using ordinary 374 RAILROADS AND RAILROAD COMPANIES. care in the discharge of their duties, then the defendant is not liable in this action. Fawcett v. Railway Co., 24 W. Va. 758. V. INJURY TO REAL ESTATE. a. Value of property immediately before and imme- diately after construction of railroad. b. Same When no part of property taken. c. Permanent injuries When value of property de- preciated. a. Value of property immediately before and immediate- ly after construction of railroad. The court instructs the jury that if they believe from the evidence that the plaintiff's property was worth as much immediately after the construction of the defend- ant's railroad as it was immediately before said railroad was constructed, then they shall find for the defendant. Stewart v. Railroad Co., 38 W. Va. 444. b. Same When no part of property taken. The court instructs the jury that when an action is brought to recover damages, where no part of the plain- tiff's property has been taken, but simply damaged by a public improvement, damages cannot be had unless the property claimed to be damaged has been depreciated in value by the construction of the public improvement. In other words, if the fair market value of the property is as much immediately after the construction of the improve- ment as it was immediately before the improvement was made, no damages can be sustained and no recovery can be had. Therefore, if the jury believe from the evidence that the fair market value of the plaintiff's property was as much immediately after the construction of the de- fendant's railroad as it was immediately before, then he RAILROADS AND RAILROAD COMPANIES. 375 has sustained no damages which can be the subject of a recovery in this suit, and they should find for the defend- ant. Steicart v. Railroad Co., 38 W. Va. 444. c. Permanent injuries When value of property depre- ciated. The court instructs the jury that if they believe from the evidence that the property of the plaintiff has been permanently injured and its value depreciated by the laying and construction of the embankment and railroad track, and that the defendant constructed and laid, or had constructed and laid by its agents, the said embank- ment and track, then the plaintiff is entitled to recover damages. Hast v. Railroad Co., 52 W. Va. 402. VI. INJURIES TO A WATER MILL. a, Burden of proof Nominal damages. b. Necessity for proving specific cause of injury. a. Burden of proof Nominal damages. The court instructs the jury that the burden is upon the plaintiff to prove to them the damages, if any, which he has suffered by reason of the alleged wrongful act of the defendant, and wherein and what such damages are; and if the plaintiff has failed to prove any damages, although he proves the wrongful act by the defendant whereby his water power was diminished, the jury can give only nomi- nal damages. Watts v. Railroad Co., 39 W. Va. 208. b. Necessity for proving specific cause of injury. The court instructs the jury that if the plaintiff would recover for loss of profits in operating said mill conse- quent upon the alleged wrongful acts of the defendant, it is his duty to prove wherein, when and what profit he lost, and the amount thereof, as near as may be; and it 376 RAILROADS AND RAILROAD COMPANIES. is not sufficient for him to prove simply that his water power has been diminished, thus lessening the amount of work done in a given time, but he must go further, and show that custom and work were tendered and refused be- cause of incapacity to meet the demand, or that it took him so much longer to accommodate the custom so offered, and prove with some degree of certainty, or approxima- tion, the extra time so required a.nd cost expended. Watts v. Railroad Co., 39 W. Va. 208. VII. CONSTRUCTION OF CROSSINGS AND CATTLE GUARDS. a. Convenient crossings. b. Construction of gates in lieu of cattle guards. a. Convenient crossings. The court instructs the jury that if they believe from the evidence that the railroad company did construct convenient crossings on the plaintiff's land at the time the road was opened for business, then the plaintiff cannot now complain of the failure to construct other crossings at other points on his lands, provided, they believe from the evidence that the crossing so constructed was con- venient. Clarke v. Railroad Co., 39 W. Va. 743. b. Construction of gates in lieu of cattle guards. The court instructs* the jury that they have the right to consider the construction of the gates by the defendant at the crossings in connection with the other evidence in the case, in arriving at a conclusion whether or not the defendant has failed to construct suitable cattle guards, and if they believe from the evidence that the construction of the gates by the defendant was sufficient to prevent cattle and other stock from going upon the said railroad, then they have a right to consider this in arriving at a conclusion as to the necessity for the construction of cattle guards. Clarke v. Railroad Co., 39 W. Va. 744. REAL ESTATE. 377 CHAPTER 60. REAL ESTATE. a. Commissions for making sale of real estate. b. Same Consideration of contract for making sale. c. When agent entitled to commissions though sale not made. d. Same Revocation of contract. a. Commissions for making sale of real estate. The court instructs the jury that if they believe from the evidence and all the circumstances that the defend- ant - , employed - , the plaintiff, to sell his farm at the price of $ , and that the plaintiff did sell said farm at the price and upon the terms agreed upon in said contract of employment and if you further find from all the evidence and circumstances that said de- fendant was to pay said plaintiff $ - for making said sale, then you should find for the plaintiff. Ober v. Stephens, 54 W. Va. 356. b. Same Consideration of contract for making sale. The court instructs the jury that it is not necessary in order to support a contract, that the consideration should consist of any specified sum of money or article of value, but it may consist in an act to be performed, and if the jury believe from the evidence that - - em- ployed - - to sell his lands for a remuneration stipu- lated in the conrtact, to be paid thereupon upon the sale of the lands, that this will be a sufficient consideration. Rowan & Co. v. Hull, 55 W. Va. 340. c. When agent entitled to commissions though sales not made. The court instructs the jury that if they believe from 378 SABBATH BREAKING. the evidence that - - was a real estate agent, and as such agent, had a contract with the defendant, whereby he was to sell certain lands for him, and in pursuance of such contract he procured a purchaser within the time specified in said contract, who was able, read}' and willing to buy on the terms upon which he was authorized in said contract to sell, the said - is entitled to recover the commission stipulated in said contract, even though the jury further believe from the evidence that the said contract of purchase was never completed, if they believe the completion was prevented by the act or default of the defendant. Rowan & Co. v. Hull, 55 W. Va. 340. d. Same Revocation of contract. The court instructs the jury that if they believe from the evidence that the plaintiff, - , procured - to examine said land with the view of purchasing the same, and did this before any revocation of their con- tract, and that the said - afterwards made a bona fide offer to purchase said land at the price agreed upon in said contract in pursuance of his solicitation by said - , then the said - - is entitled to recover his commission as stipulated in said contract. Rowan d Co. v. Hull, 55 W. Va. 340. CHAPTER 61. SABBATH BREAKING. a. Work of necessity or charity Burden of proof. The court instructs the jury that the burden of proof is on the state to establish bevond reasonable doubt the SALES. 379 fact that the defendant pumped or operated certain oil wells in county, on a Sabbath day, within one year prior to the finding of this indictment ; and further, that the burden of proof is on the state to prove that such pumping or operating was not a work of necessity or charity. State v. AfcBee, 52 W. Va. 260. CHAPTER 62. SALES. 1. CONTRACT OF SALE. 2. DELIVERY AND ACCEPTANCE. 3. SHIPMENT OF GOODS TO WRONG PARTY. 4. NON-ACCEPTANCE. 5. TURNING GOODS OVER TO THIRD PARTY. 6. SHIPMENT OF GOODS IN EXCESS OF PURCHASE. 7. FAILURE OF CARRIER TO DELIVER GOODS. 8. FALSE REPRESENTATIONS BY SELLER. 1. CONTRACT OF SALE. a. Written contract Absence of fraud. b. Verbal contract Conditional sale. a. Written contract only evidence in determining terms, of agreement. The court instructs the jury that in the absence of fraud, the written contract dated the - - day of , is the only evidence to be considered in determining the terms of the agreement between the plaintiff and de- fendant as to the goods sold and the price to be paid. Hood v. Bloch, 29 W. Va. 248. 380 SALES. b. Verbal contract Conditional sale Right of pur- chaser to determine whether goods satisfactory. The court instructs the jury that if they believe from the evidence that the machine in question was sold to the defendant with the understanding and agreement that if it did not give satisfaction to the defendant the seller would take it back, then the defendant had a right to refuse to keep the machine if it did not in fact give him satisfaction and the burden of proving that it did give him satisfaction is on the plaintiff. Osborne & Co. v. Francis, 38 W. Va, 313. 2. DELIVERY AND ACCEPTANCE. a. What constitutes delivery Delivery of goods to car- rier for shipment Injury to goods after arrival at destination and while in care of carrier. The court instructs the jury that if they find from the evidence that the plaintiff sold to the defendant the wheat in question, the same to be delivered in a railroad car of the - - railroad company at the depot of said company in the city of - ; that within a reasonable time thereafter the plaintiff delivered to the said rail- road company the said wheat for transportation in one of its cars, to said depot; that the said wheat was there- upon placed by the said company in one of its cars, to which was affixed, according to the usual course of business, the address of the defendants; and that the said wheat arrived in due course of transit, in the said car, and in proper condition at such depot, then the jury should find for the plaintiff, even though they should further believe that the said wheat was, after such arrival, injured or destroyed by water or otherwise. Bloyd v. Pollock, 27 W. Va. 84. SALES. 381 3. SHIPMENT OF GOODS TO WRONG PARTY. a. Notice to seller of mistake in shipment. ** The court instructs the jury that if they believe from the evidence that the sale of the flour in controversy was made by - - to - - for the firm of - - & Co., at - , and that said - , (the salesman), caused the said flour to be shipped by plaintiffs to - & Co., (another firm), without instructions from said - & Co., (the other firm), and that said - - & Co., (the other firm), notified the plaintiff within a reasonable time after the arrival of the flour at - of his mistake in the shipping of the flour, and that said - & Co., (the other firm), exercised no acts of own- ership over said flour after they ascertained the contents of the car by opening it, then the jury should find for the defendant. Thompson v. Douglass, 35 W. Ya. 345. 4. NON-ACCEPTANCE. a. Notice of non-acceptance required Failure of purchaser to return goods. b. Same. c. Same Passing of title Burden of proof. a. Notice for non-acceptance required. The court instructs the jury that if they believe from the evidence that the defendant received invoices of the goods in controversy, purporting that the defendant bought the goods of the plaintiffs, and also received the goods specified in the invoices, and did not return the goods within a reasonable time, or notify the plaintiffs within a like time that he would not accept the goods, then that the jury can consider these circumstances as tending to show that the plaintiffs sold the goods in 382 SALES. controversy to the defendants. Bartholomae v. Paull, 18 W. Va. 776. 4 b. Same. The court instructs the jury that if they believe from the evidence that invoices or bills of particulars express- ing that the defendant bought of the plaintiffs the goods in controversy, and that they had been or were about to be shipped to him as freight by railroad, were mailed by the plaintiffs to the defendant, and were received by him, and that the goods whose sale and arrival as indi- cated by such invoices were received in due time by the defendant from the railroad, then that these are circum- stances tending to show a sale of the goods thus re- ceived, and would render the defendant liable to the plaintiffs therefor unless he, within a reasonable time, returns the goods to the plaintiff or gives them notice that he does not accept them. Bartholomae v. Paull, 18 W. Va. 775. c. Passing of title Burden of proof. The court instructs the jury that if they believe from the evidence that the plaintiffs were the owners of - barrels of - - described in the declaration and that the plaintiffs sent said - - to - - in the month of - , to be delivered to W., or to some other per- son in his behalf, and if the jury further believe from the evidence that said W. after being notified that the - had been shipped, refused to buy or accept said - - as a purchase, but that the said W. did afterwards take the same into his possession as the property of the plain- tiffs with the understanding that he would hold the same for the plaintiffs and subject to their order then so long as W. held such - - under that arrangement, the - - remained the property of the plaintiffs, and W. had no title thereto and could not pass title to the SALES. 383 or make lawful sale of the property. And if the jury believe from the evidence that W. did take such into his possession agreeing to hold it for the plaintiffs as their property as above set forth, then be- fore the jury can find that the said - - became the property of W., the burden of proof is on the defendant to show by a fair preponderance of the testimony that W. lawfully acquired title to the property after agree- ing to hold it for the plaintiffs. Ullman d Co. v. Bid- dies, 53 W. Va. 416. O. TURNING GOODS OVER TO THIRD PARTY. a. Consent of seller required. b. Same Acts of third party in offering goods for sale Shipment of remaining goods back to seller Agency. a. Concerning purchaser's right to turn goods over to third party without the consent of seller. The court instructs the jury that the defendant had no right to put the goods in controversy in the hands of any third party upon any kind of agreement whereby such party might appropriate the goods to his own use without first having obtained the plaintiff's consent thereto. Bartholomae v. Paull, 18 W. Va. 776. b. Same Acts of third party in offering goods for sale When third party regarded as agent of purchaser Shipment of remaining goods by purchaser to seller. The court instructs the jury that if they believe from the evidence that the defendant received invoices of the goods in controversy, purporting a sale of the goods by the plaintiffs to him, that the goods themselves were re- ceived by him and the freight paid on the same by him, ;;si SALES. and that he without plaintiff's knowledge or consent turned the goods over to - , either with or without an understanding between him and the defendant, that he, - , was to treat with the plaintiffs for the goods, that - - took charge of the goods, offered and showed them for sale, sold some or retained some in his own store from each of the bills of goods in controversy with the defendant's knowledge and consent, that the defend- ant took the residue of the goods in controversy from 's custody and shipped them back to the plaintiffs, then that the goods were in - 's hands as the agent of the defendant; that - 's acts in regard thereto are to be regarded as the acts of the defendant, and are as binding on him as though done by himself, and amount to an acceptance of said goods by the defendant, and render him liable to the plaintiffs therefor. Bartholo- v. Paull, 18 W. Va. 774. G. SHIPMENT OF GOODS IX EXCESS OF PURCHASE. a. When purchaser liable for acceptance of goods in ex- cess of purchase. The court instructs the jury that if they believe from the evidence that the defendant gave an order to the plaintiffs for a lot of goods, the kind and value of which was not agreed upon in terms, but the value was to be about $300.00, that discretion was given to the plaintiffs, or their employe, - , to select the goods for such an order, or any part of them, that the goods were to be shipped by the plaintiffs to defendant as manufactured, that they were shipped at different times as manufactur- ed and shown in the bills of particulars in this case. and invoices or bills of particulars of each shipment ex- pressing that the defendant bought the goods of the plain- tiffs, and the manner of their shipment to the defend- SALES. 385 ant were sent by mail so as to reach the defend- ant in time to give notice to him of the kind, quantity and value of the goods about to arrive, that such in- voices were received, that the goods arrived and were delivered to the defendant as stated in said invoices, that the defendant paid the freight on said several bills of goods, then that he is liable to the plaintiffs for all of said goods, though in excess of the amount of $300.00, unless within a reasonable time, he returned or offered to return or gave notice that he would not accept the goods received because in excess of the quantity ordered. Bar- tholomae v. Paull, 18 W. Va. 775. 7. FAILURE OP CARRIER TO DELIVER GOODS. a. Agreement of seller as to shipment of goods. b. Liability of purchaser, though carrier fail to de- liver goods. a. Agreement of seller as to shipment of goods. The court instructs the jury that if they believe from the evidence that the plaintiff sold to the defendant the wheat in question and agreed to deliver the same in a car belonging to the - - railroad company at the depot of said company in - ; that within a rea- sonable time thereafter the plaintiff shipped the said wheat in a car, properly addressed, of the said com- pany ; that the said car so containing the said wheat duly arrived at the said depot, then from and after such ar- rival, the said railroad company was not the agent of the plaintiff with respect to said wheat, and no respon- sibility attaches to the plaintiff by reason of any failure, if failure there was, on the part of the said railroad company to give notice to the defendants of such ar- rival. Bloyd v. Pollock, 27 W. Va. 84. 386 SALES. b. Liability of purchaser, though carrier fail to deliver goods. The court instructs the jury that if they believe from the evidence that the defendant bought the wheat in the testimony referred to; that the same was to be deliver- ed by the plaintiff in a car of the - - railroad com- pany at the freight depot of said company in the city of , and that the car containing said wheat duly ar- rived at said depot, with the said wheat in good condi- tion, then from the time of such arrival the said - belonged to the defendant, and their liability to pay for the same attached, even though there may have been a failure on the part of the railroad company to notify the defendant of such arrival. Bloyd v. Pollock, 27 W. Va. 85. 8. FALSE REPRESENTATIONS BY SELLER. a. Eeliance by purchaser upon representations of seller False representations, though not fraudu- lent, avoid contract. b. Same Condition of goods sold as compared with that delivered. a. Reliance by purchaser upon representations of seller false representations, though not fraudulent, avoid contract. The court instructs the jury that if a seller, in order to induce a sale, makes a false representation as to any ma- terial fact, by which the purchaser is mislead to his in- jury, and in which the purchaser is presumed to have trusted to the seller, then the contract founded on such representations is void, whether the seller knew the representations to be false at the time they were made or not, and whether made with a fraudulent intent or not. Hood v. Block, 29 W .Va. 250. SEDUCTION. 387 b. Same Condition of goods sold as compared to that delivered. The court instructs the jury that in considering the question of fraud or misrepresentation in the procure- ment of the contract of sale, you must first find the con- dition of the cheese on the - - day of , as com- pared with the lot sold to the defendant by plaintiff. Hood v. BlocTi, 29 W. Va. 248. CHAPTER 63. SEDUCTION. a. Action by father for seduction of minor daughter Father's control over and right of services of daughter. The court instructs the jury that if they believe from the evidence in this cause that the plaintiff did sustain loss of services of his daughter, and that such loss of service was occasioned by the seduction and wrongful act of the defendant, then you may take into considera- tion the shame, loss of respect and mortified feeling of the plaintiff, and give such exemplary damages as you may believe the plaintiff entitled to. The jury are fur- ther instructed that if they believe from the evidence in this case that the daughter of the plaintiff was seduced by the defendant whilst at the defendant's house and in his employ, and that she was under the age of twenty-one years, then unless the evidence in this cause should satis- fy you that the plaintiff had relinquished all control over the daughter and all right to her services, the law presumes that the plaintiff is entitled to her services, and any loss of services sustained by the plaintiff occa- 388 STREET RAILWAYS. sioned by such act of seduction, does entitle the plain- tiff to recover. Riddle v. McGinnis, 22 W. Va. 262. CHAPTER 64. STREET RAILWAYS. (See also Mannon v. Railway Co., 56 W. Va. 554, and Sample v. Railway Co., 50 W. Va. 472.) LIABILITY AS CARRIERS OF PASSENGERS. a. Presumption of negligence Burden of proof. b. As to liability when no negligence shown. c. Contributory negligence Burden of proof. d. Same Acts done by person injured through fright or excitement. e. Same What to be considered in determining as to negligence. f. Same How responsibility for contributory negli- gence escaped. g. Same Care required of person injured. h. When contributory negligence one of the causes of injury, i. Same. a. Presumption of negligence Burden of proof. The court instructs the jury that where a passenger is injured by any accident attending the running of a street car, the presumption is that it occurred by the negligence of the driver ; and the burden of proof is then on the proprietors of the street car to establish that there has been no negligence whatsoever, and that the damage or injury has been occasioned by inevitable STREET RAILWAYS. 380 casualty, or by some cause which human care and fore- sight could not prevent. Dimmey v. Railroad Co., 27 W. Va. 52. b. No liability when no negligence is shown. The court instructs the jury that if they believe from the evidence that neither the defendant, its agents or employes in charge of the car at the time the accident in question occurred, were negligent in the conduct or operation of the car, then the plaintiff is not entitled to recover, and the jury should find a verdict for the de- fendant. Normile v. Traction Co., 57 W. Va. 132. c. Contributory negligence Burden of proof. The court instructs the jury that with respect to the question of contributory negligence on the part of the decedent, the burden of proof is on the defendant, Dimmey v. Railroad Co., 27 W. Va. 52. d. Same Acts done by persons injured through fright or excitement. The court instructs the jury that if the deceased through fright or excitement, did at the time of the ac- cident that which a reasonably prudent and careful per- son, of the same class, would not have done under the the same circumstances, and such act on her part con- tributed immediately to the injury, the plaintiff cannot recover, and the jury must find for the defendant. Dimmey v. Railroad Co., 27 W. Va. 53. e. Same What to be considered. The court instructs the jury that in ascertaining whether a person has been negligent or not, it is proper to consider the circumstances in which he is placed, so that what might be negligence under some circumstances, might not be so under others, and so that it might be 390 STREET RAILWAYS. proper for one to do in view of imminent danger that which would, at other times, be considered rash, yet this rule only permits a person to do what persons of ordinary prudence of the same class would have done under like circumstances; therefore if - , at the time of the accident did what ordinarily prudent and careful persons of the same class would not have done under similar circumstances, and if such act on her part con- tributed immediately to the injury, then the plaintiff can- not recover. Dimmey v. Railroad Co., 27 W. Va. 52. f. Same How responsibility of contributory negligence escaped. The court instructs the jury that to escape the re- sponsibility of contributory negligence, a plaintiff in an action for damages for an alleged negligence of another, is not required to exercise more care than is usual under similar circumstances among careful persons of the class to which such plaintiff belongs. Normile v. Traction Co., 57 W. Va. 132. g. Same Care required of person injured. The court instructs the jury that in considering the question of contributory negligence, that the jury are in- structed that the decedent was not required to exercise more care than is usual in similar circumstances among careful women. Dimmey v. Railroad Co., 27 W. Va. 52. h. When contributory negligence one of the causes of injury. The court instructs the jury that if they believe from the evidence that the plaintiff did not exercise due and reasonable care in attempting to get on the car on the evening of the accident and that her negligence in this respect contributed to and was one of the causes of the accident, then even although the defendant or its agents or employes may have been negligent in the running of SURETYSHIP. 391 the car, yet the plaintiff is not entitled to recover and the jury should find a verdict for the defendant. Normile v. Traction Co., 57 W. Va. 132. i. Same. The court instructs the jury that if they believe from the evidence that in the exercise of reasonable care in attempting to get on the car on the evening of the ac- cident, it was the duty of - - at the same time when she placed her right foot upon the step of the car to take hold of one of the rails, and that because she had her arms and hands otherwise engaged she did not do so and that it was negligent on her part not to do so and that this negligence on her part contributed to and was one of the causes of the accident, then even although the jury should also find from the evidence that the de- fendant or its employes were negligent the plaintiffs are not entitled to recover and the jury should find a verdict for the defendant. Normile v. Traction Co., 57 W. Va. 132. CHAPTER 65. SURETYSHIP. a. When payee may elect to hold persons endorsing on back of note as original promissors, or endorsers. The court instructs the jury that if they believe from the evidence that at the time the note in question was de- livered to the plaintiff, that it was made payable to him, was signed by and had written on the back the name of - - and - , that then the said plaintiff is entitled to hold them as joint makers, and if it is shown by the evidence that said and 392 SURFACE WATER. signed their names on the back of said note at the time it was made as security for the maker and for his ac- commodation to give him credit with the payee such proof does not alter the right of the payee to hold them bound as original promissors or as guarantors or as en- dorsers as he may elect, but strengthens his prima facie right to elect. Parsons v. Harrold, 46 W. Va. 127. CHAPTER 66. SURFACE WATER. a. Liability of municipal corporation for casting sur- face water upon the property of an individual. b. Drains for cellars Municipal corporations not required to furnish. c. Same Raising grade of streets. d. Same Injuries resulting from other causes. a. Liability of a municipal corporation for casting sur- face water upon the property of an individual. The court instructs the jury that in disposing of sur- ace water, a municipal corporation has no right, by any means whatever, to collect and cast the same upon the property of an individual. Clay v. City of St. Albans, 43 W. Va. 546. b. Drains for cellars Municipal corporations not re- quired to furnish. The court instructs the jury that the law does not re- quire the city of - to furnish a drain or sewer to carry water away from the cellar on the premises in the plaintiff's declaration described, or away from said premises. Jordan v. City of Benwood, 42 W. Va. 322. TELEGRAPH AND TELEPHONE COMPANIES. 393 c. Same Raising grade of streets. The court instructs the jury that the fact that the city of - raised the grade of street and of alley , so as to prevent water flowing from the cellar oni the premises in the plaintiff's declaration described, or away from said premises, upon either said street or said alley, will not of itself entitled the plaintiff to re- cover damages in this action. Jordan v. City of Ben- wood, 42 W. Va. 322. d. Same Injuries resulting from other causes. The court instructs the jury that if they believe from the evidence that the city of since , 18 , and before the bringing of this suit, has damaged the premises described in the plaintiff's declaration other- wise than by preventing the water from flowing there- from upon - - street or upon alley , their ver- dict must be for the defendant. Jordan v. City of Ben- wood, 42 W. Va. 322. CHAPTER 67. TELEGRAPH AND TELEPHONE COMPANIES. I. TELEGRAPH COMPANIES. II. TELEPHONE COMPANIES. I. TELEGRAPH COMPANIES. a. Rules of companies Reasonable rules. b. Delay in transmitting and delivering messages. c. Same Repeating messages. d. Same Liability of telegraph company for profits arising from sales. a. Rules of telegraph companies Reasonable rules. The court instructs the jury that if they believe from 394 TELEGRAPH AND TELEPHONE COMPANIES. the evidence that the - - telegraph office at - , had a rule that messages would not be received or de- livered after 9 o'clock in the evening and before 8 o'clock in the morning, then that was a reasonable rule, and the plaintiff cannot recover any damages in this case for the failure of the defendant to deliver it before 8 o'clock in the morning of - , - , although it may have come to the - - office at 1 o'clock A. M., of said , - . Davis v. Telegraph Co, 46 W. Va. 50. > b. Delay in transmitting and delivering messages. The court instructs the jury that if they believe from the evidence that - - of - - sent the plaintiff the telegram offered in evidence dated - , - , ask- ing for quotation of prices on the lunmber mentioned in said telegram, and that the plaintiff prepared and de- livered to defendant's operator at - - station, the re- ply to said telegram which has been offered in evidence dated - , and that through the neglect of defendant said reply was never delivered to said - , and even if the jury further believe that in case said reply had been delivered and said - - had ordered said lumber at the prices quoted in said reply and plain- tiff had delivered said lumber to - , in pursuance to said order the plaintiff would have made a profit of I , per thousand feet on* said lumber, still such profits cannot be allowed by the jury in favor of the plaintiff in making up their verdict in this case. Beatty Lumber Co. v. W. U. Telegraph Co., 52 W. Va, 420. c. Same Repeating messages. The court instructs the jury that if they believe from the evidence that the plaintiff did not request the opera- tor of defendant, to whom the message to , which has been offered in evidence, was delivered, to have said message repeated, and did not pay or offer to pay said TELEGRAPH AND TELEPHONE COMPANIES. :>,!)-> operator the regular additional charge for repeated mess- ages as prescribed by the terms on the back of said mess- age, then the defendant is not liable to the plaintiff for any damages for the non-delivery of said message beyond the amount received for sending the same. Beattii Lumber Co. v. W. U. Telegraph Co., 52 W. Va. 420. d. Same Liability of telegraph company for profits arising from sales. The court instructs the jury that the defendant is not liable to plaintiff for any profits which plaintiff would have made out of the proposed sale of the lumber in question to - , if they believe from the evidence that no contract was in fact made with said - - for sale of said lumber. Beatty Lumber Co. v. W. U. Telegraph Co., 52 W. Va. 420. II. TELEPHONE COMPANIES. a. Duty of telephone company as to placing and main- taining wires. b. Injuries resulting from negligence of telephone company. c. Care and caution required of person injured. a. Duty of telephone company to place, support and maintain its wires by proper means and appliances. The court instructs the jury that the defendants in erecting and maintaining the telephone line mentioned in the declaration, were bound to place, support and maintain its wires by good, reliable and efficient means and appliances, so as not, in any way. to interfere with the use as a public highway of the road leading from the town of - , in - - county, to the town of , in county, and if said defendants failed to provide good, reliable and efficient means and appliances 390 TELEGRAPH AND TELEPHONE COMPANIES. to support aud maintain said wire, and by such failure it was stretched across said highway, near the ground, and interfered with the plaintiff in the use of said high- way as a public highway, then they are guilty of negli- gence. H annum v. Hill, 52 W. Va. 176. b. Injuries resulting from negligence of telephone com- pany. The court instructs the jury that if they believe from the evidence that the plaintiff was injured by being thrown from his horse, as complained of in the declara- tion, and that the negligence of the defendants was the proximate cause of the injury received by the plaintiff, then they must find a verdict for the plaintiff. H annum v. Hill, 52 W. Va. 176. c. Care and caution required of person injured. The court instructs the jury that even if they find that the plaintiff was injured by the negligence of the defendants as alleged in his declaration, that then in ascertaining the amount the plaintiff is entitled to re- cover they have a right to consider whether the plaintiff is entitled to recover, they have a right to consider whether the plaintiff exercised proper care and medical treatment of himself after receiving the injury complained of, and if the jury further believe that the injury, if any, received by the plaintiff was aggravated by his lack of proper care and caution on the part of the plaintiff, then plaintiff is not entitled to recover anything for such aggravated injury. JT annum v. Hill, 52 W. Va. 178. TRESPASS TROVER AND CONVERSION. 397 CHAPTER 68. TRESPASS. a. Possession of land Necessity for plaintiff to prove. The court instructs the jury that in order for the plaintiff to maintain his action he must prove that at the time the alleged trespass was committed, he was either in the actual or constructive possession of the land on which the same was committed. Storrs v. Feick, 24 W. Va. 608. CHAPTER 69. TROVER AND CONVERSION. a. Right of title to and right to possession of prop- erty. b. Delivery of goods Authority to dispose of. a. Right of title to and right to possession of property. The court instructs the jury that the plaintiff has no right to recover in this action unless he show that at the time this suit was brought he had the right of prop- erty in the said , or any part he may show himself entitled to, and also that he had the right to the posses- sion of said - , or part thereof. Haines v. Coch- rans, 26 W. Va. 722. b. Delivery of goods Authority to dispose of goods. The court instructs the jury that if they find from the evidence that the plaintiff delivered, or caused to be de- 398 TURNPIKE COMPANIES. livered to - - the notes sued on, with authority to dispose of the same, said notes or the money for them to be returned to the plaintiff, and further find that said - sold and delivered the said notes to the defend- ant, then the jury must find for the defendant; and that such authority might be either expressed or implied. Carder v. B. d. The time to consider as to competency of testator. The court instructs the jury that the time to be looked to by the jury in determining the competency of the testa- tor to make a will is the time when the will was executed. Nicholas v. Kershner, 20 W. Va. 255. e. Highest quality of mind not required of testator Tes- tator must possess sufficient mind to know objects of bounty and comprehend disposition of property. The court instructs the jury that in order for a man to make a valid will, it is not necessary that he should possess the highest qualities of mind, nor that he should have the same strength of mind that he may formerly have had; that the mind may be in some degree debili- tated, the memory may be enfeebled; he may possess weakness of understanding, eccentricity of character, and even want of capacity to transact many of the ordinary business-affairs of life; but is sufficient, if he possess mind enough to understand the nature of his property, to know the object of his bounty and to comprehend the disposition of his property in its simplest forms. Coff- v. Hcdrick, 32 W. Va. 132. f. Bequests to others than relatives Consideration of. The court instructs the jury that if they believe from the evidence that there is a - doubt of the competency of the said - , deceased, to make a will, on the day of - , and that he had, at that time, relations living, of whom he knew, (whether nephews or nieces), and that by the paper writing of - , - , pur- porting to be his last will and testament, he devised and bequeathed all his property, real and personal, to others than his relations, then the fact that he made such WILLS. 409 devise and bequest, is proper to be considered by the jury. Ward v. Brown, 53 W. Va. 265. g. Not necessary that the testator name all his children in will. The court instructs the jury that in order to make a valid will, it is not necessary that the testator should name all his children in it or give all of them a portion of his estate. If the jury believe he was mentally capa- ble of understanding the disposition he was making of his property, and that he acted freely, then it is imma- terial to whom he gives his property, whether all to one of his children or to strangers. If he has a disposing mind he has the right to do as he pleases with his prop- erty. Nicholas v. Kershner, 20 W. Va. 257. h. Favoritism or partiality of testator toward his chil- dren. The court instructs the jury that although they may believe from the evidence that the testator was influenced by feelings of resentment and dislike towards a part of his children and by feelings of affection and attachment towards others, and that these influenced him to give his whole estate to the one part and nothing to the others, still this is not of itself sufficient to make the will in- valid. Nicholas v. Kershner, 20 W. Va. 257. i. Fickleness of testator as concerns his children. The court instructs the jury that although they may believe from the evidence that the testator was fickle and inconstant, and that at one time he favored one or more of his children, and at other times disliked those and favored others; still if they believe he acted freely and had the capacity to understand what property he had, and to whom he was giving it, the will is not in- valid on that account; and if they believe his will was 410 WILLS. caused by the extreme kindness and attention of the de- visees, that will not constitute undue influence, which will invalidate the will, yicholas v. Kershner, 20 W. Va. 257. j. Fraud or undue influence in procurement of will Burden of proof. Fraud or undue influence in the procurement of a will is not to be presumed, but the burden of proof lies upon the party who alleges it, to establish the same by evidence. It is not required that there be direct and positive proof of such fraud or undue influence, but it may be deduced from the established facts and circumstances of a given case. At the same time it will not be inferred from opportunity and interest merely on the part of those to whom the fraud or undue influence may be attributed. McMechen v. McMeclicn, 17 W. Va. 702. k. Same. The jury is instructed that if they are satisfied from the whole evidence in this case that the paper writing of - , 18 , here offered for probate as the will of - , deceased, was made by him by reason of an undue influence exercised upon his mind and will and would not have been made by him but for such influence, then they should find that the same is not his last will. McMecJien v. McMechen, 17 W. Va. 711. 1. Same Coercio'n of the testator. The court instructs the jury that to constitute undue influence and make void, by reason thereof, a paper writ- ing executed as a will, it is not necessary that the party making such paper writing should be controlled by any force, coercion or persuasion exercised at the time of the signing of said paper; it is all-sufficient to avoid the paper if, upon the evidence, the jury find by reason there- WILLS. 411 of, that the disposition of the estate by the writing is not the disposition which the party desired and intended to make of the same. Ferrell v. Forney, 4 W. Va. 737. m. Understanding of testator as to beneficiaries of will. If the jury believe from the evidence that the testatrix, , understood or believed that the paper writing contained a provision for the use or benefit of her husband, - , or his children, or both the hus- band and the children, and such provision is not con- tained in said paper writing, it is their duty to consider and weigh such evidence in ascertaining whether the paper writing is, or is not, the last will of . Ferrell v. Forney, 4 W. Va. 738. n. Attestation of will necessity for Mental and physical ability of testator to dissent from and prevent the signing and attestation of will. The court instructs the jury that the attesta- tion of the paper writing dated - , - , purport- ing to be the last will and testament of - , deceased, given in evidence in this case, is absolutely necessary to its execution; and if the jury believe from the evi- dence that before this important part of the execution of said paper writing, and while it was duly done, said testator, by reason of unconsciousness, or mental or physical inability was unable to dissent from the attes- tation, and to arrest and prevent the same, by indicating his dissent or disapproval, if he had desired to do so, the said paper writing is not valid as a will. Ward v. Brown, 53 W. Va. 265. o. Same While attesting witnesses engaged in signing will. The court instructs the jury that if the jury believe from the evidence that at the time the attesting witnesses 412 WILLS. were requested to sign said paper and at the time they were engaged in signing the same, the said - did not possess sufficient consciousness to hear and under- stand and assent to said request or to dissent from the same if he had wished, or that he did not possess suffi- cient consciousness to recognize and understand what said attesting witnesses were doing, and to assent to their acts, or that he did not possess sufficient consciousness and sufficient physical strength to have dissented from the said attestation and to have arrested and prevented the same by indicating his dissent or disapproval if he had desired to do so, then the jury must find that the said paper is not^the will of the said - . McMechen v. McUechen, 17 W. Va. 713. p. Same. The court instructs the jury that if they believe from the evidence that - - signed the name of the testator to the paper writing offered in evidence as his last will and testament dated - , - , and that at the time the attesting witnesses were engaged in signing the same the said testator did not possess sufficient con- sciousness to recognize and understand what said attest- ing witnesses were doing and to assent to their acts, or that he did not possess sufficient consciousness and suffi- cient physical strength to have dissented from the said attestation, and to have arrested and prevented the same by indicating his dissent or disapproval, if he had desired to do so, then the jury must find that the said paper is not the will of the said testator. Ward v. Brown. 53 W. Va. 264. q. Manner of placing name of testator to will Subse- quent acknowledgment and ratification of signa- ture by testator. The court instructs the jury that if the jury believe WILLS. 413 from the evidence that the paper writing of - , 18 , here offered for probate, was signed by - himself, or by some other person in his presence and by his direction, in the presence of the attesting witnesses to said paper writing, and he was then of sound mind, and was then and there shortly afterwards acknowl- edged by said - before said attesting witnesses as his last will, and that the said paper-writing shortly after such acknowledgment was signed by the attesting witnesses in his presence, and that the testator, at the time said attesting witnesses signed the same, was of sound mind and physically able to assent to or dissent from such attestation, said acknowledgment made as aforesaid is not required by law and does not add to the legal validity of the will; but the jury in considering the state of mind of the said should consider all the evidence in the case bearing upon that subject. Mc- Mechen v. MoMechen, 17 W. Va. 710. r. Same Recognition by testator in presence of attest- ing witnesses of signature to will. The court instructs the jury that if they are satisfied from the evidence that the testator, , knew his name was signed to the will, and that he acknowledged it in the presence of the two attesting witnesses, both in his presence at the time, then it is immaterial how the signature of the testator was placed upon said will, whether by one of the witnesses, by the testator or by both the witness and testator. The material matter for the jury to determine is, whether the said - knew his name was attached to the will, and that he recognized it as his will and signature in the presence of the at- testing witnesses, both in his presence at the time of such acknowledgment. Nicholas v. Kershner, 20 W. Va. 258. 414 WILLS. s. Same Testamentary capacity of testator. The court instructs the jury that it is not necessary that the subscribing witnesses to a will should see the testator sign, or that he should acknowledge to them the subscription of his name to be his signature, or even that the instrument is his will. If the testamentary ca- pacity exist at the time, it is enough that he should ac- knowledge in their presence that the act was his, he hav- ing at the time knowledge of the contents of the instru- ment and the design that it should be the testamentary disposition of his property. If the jury believe from the evidence that the paper writing here offered for probate was subscribed by himself, and that such acknowledgment of said paper writing was made by him, the jury are instructed that such an acknowledg- ment is a recognition and ratification of his signature. If the jury believe from the evidence that the name of - was subscribed to said paper writing by another, and that such an acknowledgment of said paper writing was made by said - , the jury are instructed that such acknowledgment is a recognition and ratification of the signature as having been made for him in his presence and by his directions, and that, on that state of facts, it is wholly immaterial that said signature was written in full instead of being abbreviated in the usual manner in which said - - may have been in the habit of writing it. But in considering the question of ratification the jury are to consider all the evidence in the cause relating thereto, including the mode of spelling the signature. McMcchcn v. McHechen. 17 W. Va. 708. t. Same Manner of spelling testator's name. The court instructs the jury that if, after the writing offered for probate was written by the draftsman, the signature " ," which appears at the end of said WILLS. 415 writing, was put there by the said - - himself or by another person in the presence of the said - , and with his knowledge and assent, and the intention on his part that the said writing should be his will, then it is wholly immaterial that said signature was written in full instead of being abbreviated in the usual manner in which he may have been in the habit of writing it. But it is proper for the jury to consider all the evi- dence, including the mode of spelling the same, in de- termining whether it was intended by the testator to be his signature to said paper. McMechen v. McMechen, 17 W. Va. 706. u. Assisting testator in placing his signature to will Mental and physical capacity of testator to dissent from having his signature made to will Ratifica- tion of will. The court instructs the jury that if they shall find from the evidence that the time of the execution of the paper writing here offered for probate as 's will, that the testator was not able to write his own name, and that - - did without the testator's request or con- sent take hold of the testator's hand and so write the testator's name thereto, that such signing of the tes- tator's name to said paper is not in law, without more, a sufficient signing to make the same the true last will of - - deceased; but if the said - - afterwards acknowledged the said paper as his will, such acknowl- edgment is a ratification of such signature. McMechen v. McMechen, 17 W. Ya. 711. v. Same Testator's knowledge of contents of will Capacity to make dissent known. The court instructs the jury that if they believe from the evidence that - permitted - - to steady- or guide his hand while making his signature to 416 WILLS. the paper offered for probate, or even to make such Big- nature for him, the said - - knowing at the time the contents of said paper, and what said - - was so do- ing, and the purpose thereof, and being mentally and physically able to make known by words or signs his dissent thereto had he wished to do so, such permission would be equivalent to a direction by said - - to said - - to make said signature, or assist in mak- ing the same as aforesaid. McMechen v. McMechen, 17 W. Va. 707. w. Same. The court instructs the jury that if they believe from the evidence that after the paper offered for probate was written by the draftsman, - - took hold of the hand of - - and therewith wrote the signature " appearing at the end of the paper, the signature so made is in law a sufficient signing of the paper by the said - as his will, if he intended the same to be his will, and submitted his hand to be so used with a view to his signature being made to the paper, and was mentally and physically capable at the time of making known by words or signs his dissent thereto had he wished to do so. McMechen v. McMechen, 17 W. Va. 707. x. Same. The court instructs the jury that if they believe from the evidence that when - - attempted to sign the paper offered for probate, - , by direction of the draftsman superintending the execution of the paper, took hold of the said - 's hand and steadied or even guided it, and thus enabled him to sign the same, the signature so made is in law a sufficient signing of the paper by the said - - as his will, if with the knowl- edge of the contents of the paper he submitted to his hand being so held or guided with a view to his signature WILLS. 417 being made thereto, and was mentally and physically able at the time to make known his dissent thereto by words or signs had he wished to do so. McMechen v. Me- Mechen, 17 W. Va. 707. y. Attesting witnesses Witnesses present at execution of will. The court instructs the jury that the evidence of wit- nesses who were present at the execution of the will are entitled to peculiar weight, and especially is this the case with attesting witnesses. Nicholas v. Kerslmer, 20 W. Va. 255. z. Same As to weight of evidence of physician who at- tended testator during his last illness. The court instructs the jury that if they believe from the evidence that - - was the physician who attended the testator during his last illness and who had been his physician for at least three years previously thereto and that he was present at the execution of the will, and attested the same as a subscribing witness thereto and that said is a credible person and a man worthy of belief then his evidence is entitled to great weight Ward v. Brown, 53 W. Va. 268. zl. Same. The court instructs the jury that the evidence of physi- cians, especially those who attended the testator, and were with him considerably during the time it is alleged he was of unsound mind, is entitled to great weight. Nicholas v. Kershner, 20 W. Va. 255. z2. Devisees and legatees Opportunities for knowing mental condition of testator. The court instructs the jury that statements or declara- tions made by devisees or legatees under the will as to the 418 WILLS. incompetency of the testator to make a valid will are entitled to little or no weight, unless it is proven that such devisees or legatees had, prior to the time of mak- ing such statements or declarations, opportunities of knowing the mental condition of the testator; and the weight to be given to such declarations or statements will depend entirely upon the facts amd opportunities the devisee or legatee is shown to have possessed at the time they were made. Coffman v. Hedrick, 32 W. Va. 132. z3. Expert witnesses How testimony of regarded. The mere opinions of witnesses not experts are entitled to little or no regard, unless they are founded on facts which warrant them. If the facts upon which the opin- ions are founded are frivolous, the opinions are worth but little or nothing. Nicholas v. Kershner, 20 W. Va. 256. z4. When opinions of experts can be given on testimony already in the case. The court instructs the jury that the opinion of medi- cal experts founded on testimony already in the case can only be given on a hpothetical case, and the hypothesis must be clearly stated, so that the jury may know with certainty, upon precisely what state of assumed facts the expert bases his opinion. Kerr v. .Lunsford, 31 W. V& 659. WITNESSES. 419 CHAPTER 74. WITNESSES. a. Effect of failure to produce witness. The court instructs the jury that if they believe from the evidence that the plaintiff relies in this case upon the proof of his claim that was the agent of the de- fendant in the employment of plaintiff on and after the day of , 18 , upon which his account here- in sued for is based, it was the duty of plaintiff to pro- duce said as a witness in his behalf, if the said is in the jurisdiction of this court, and that his failure to produce him is in law conclusive proof that his evidence would have been against him if produced. Garter v. Blatchley, 51 W. Va. 153. [NOTE. Matters relating to the competency and charac- ter of and the weight to be accorded the testimony of wit- nesses are given under appropriate subjects in both parts of this work.] TABLE OF CASES-PART II. XJIVING THE WEST VIRGINIA AND VIRGINIA CITATIONS IN SUPPORT OF EACH LEGAL PROPOSITION LAID DOWN. The subjects printed in italics correspond to the sub-headings, pages and letters of the text. Sub-headings, under which there are neither W. Va. nor Va. citations in support of the text therein contained, are omitted. THE TABLE OF CASES IN PABT I, PRECEDES THAT SUBJECT. A. ABELL v. INSURANCE COMPANY, 18 W. VA. 400. "283,a. Action "by insurer for cancellation of policy Recovery of premiums paid by policy holder How amount insurer entitled to to be determined. Va.; McVeigh v. Bank, 26 Gratt. 188. 292,b. An action to cancel life insurance policy Replication to plea of statute of limitations. Va.; Ficklin's Ex'r. v. Carrington, 31 Gratt. 219. 283,b. Plea of statute of limitation by insurer. Va.; Ins. Co. v. Duerson's Ex'r., 28 Gratt. 644. ARBENZ v. EXLEY & COMPANY, 52 W. VA. 476. 288,a. When tenant not released from payment of rent by failure of landlord to make repairs Independent covenant re- quiring landlord to make repairs. W. Va.; Allen v. Bartlett, 20-46; Kline v. McClain, 33-32. Miller v. Wisner, 45-59; Windon v. Stewart, 43-711. Va.; Thompson v. Pendall, 12 Leigh. 608. ii TABLE OF CASES PART II. B. BANK v. KIMBERLAND, 16 W. VA. 555. 77,a. Accord and satisfaction What may be pleaded. Va.; Fant v. Miller, 17 Gratt. 216. 78,c. Liability of creditor to debtor for negligence in collecting collateral accepted in discharge of debt. Va.; Fant v. Miller, 17 Gratt. 216. 78,b. When acceptance by creditor of order operates as full satis- faction of debt. W. Va.; Ruling v. Cabell, 9-526. Va.; Anderson v. DeSeur, 6 Gratt. 363; Miller v. Mahew, 17 Gratt, 216. BANK v. NAPIER, 41 W. VA. 481. 293,a. What passes title to logs What vests title to logs in pur- chaser. W. Va.; Morgan v. King, 28-1. BARKER v. RAILROAD COMPANY, 51 W. VA. 423. BARTHOLMAE v. PAULL, 18 >W. VA. 771. BARTLETT v. ARMSTRONG, 56 W. VA. 293. BARRICKMAN v. OIL COMPANY, 45 W. VA. 634. 353,j. Contributory negligence. W. Va.; Carrico v. R. R. Co., 39-86; Gerity v. Haley, 29-98; Industrial Co. v. Schultz, 43-470; McKelvey v. R. R. Co., 35-500. 353,k. Contributory negligence Burden of proof. W. Va.; Carrico v. R. R. Co., 39-86; Gerity's Adm'r v. Haley, 29-98. 348,a. Gas furnished for domestic purposes Dangerous sub- stances Care and skill required in its operations. W. Va.; Burns v. Coal Co., 27-288. BAYLOR v. RAILROAD COMPANY, 9 W. VA. 270. 372,b. Injuries occurring on track Private crossing Gross negli- gence. Va.; Trout v. R. R. Co., 23 Gratt. 619. BEACH v. FRANKENBERGER, 4 W. VA. 712. BEATTY LUMBER CO. v. W. U. TEL. CO.. 52 W. VA. 410. 394,b. Delay in transmitting and delivering messages. Same authoritties as 395,d. TABLE OF CASES PART II. iii BEATTY LUMBER CO. v. W. U. TEL. CO., 52 W. VA. 410 Continued. 395,d. Liablility of telegraph company for profit arising from sales. W. Va.; Bodkin v. Arnold, 48-108; Hare v. Parkersburg, 24-554; Jones v. Adams, 8-568. Va.; Newbrough v. Walker, 8 Gratt. 16. 394,c. Repeating messages Effect of failure to repeat. W. Va.; Brown v. Ex. Co., 15-812. BENTLEY v. INSURANCE COMPANY, 40 W. VA. 729. 271,k. Assignment of policy by insured to pay mortgage debt. W. Va.; Clarke v. Hogeman, 13-718; Colby v. Ins. Co., 37- 789 ; Sheppard v. Ins. Co., 21-368 ; Tingle v. Fisher, 20-497. Va.; Davis v. Miller, 14 Gratt. 1; Garland v. Richeson, 4 Rand. 266. BEYEL v. RAILWAY COMPANY, 34 W. VA. 538. 364,a. Injuries caused by failure to give sufficient warning to avoid the injury Necessity for establishing negligence. W. Va.; Hawker v. R. R. Co., 15-528; Newsome v. R. R. Co., 30-228; see also Christie v. R. R., 35-117. Va.; R. R. Co. v. Morris, 31 Gratt. 200. BLAIR v. CITY OF CHARLESTON, 43 W. VA. 62. 344,f. Decrease of market value of property caused by grading and paving of street. W. Va.; R. R. Co. v. Foreman, 24-662; Stewart v. R. R. Co., 38-438. Va.; Kanawha Co. v. Turner, 9 Leigh. 313; Muire v. Falconer, 10 Gratt. 17. 345,i. Enhancement of value of property by grading and paving streets. W. Va.; R. R. Co. v. Foreman, 24-662; Hargreaves v. Kim- berly, 26-787; State v. Welch, 36-690; Stewart v. R. R. Co., 38-438. BLOSS v. PLYMALE, 3 W. VA. 393. BLOYD v. POLLOCK, 27 W. VA. 75. 386,b. Liability of purchaser, though carrier failed to deliver goods. W. Va.; R. R. Co. v. Morehead, 5-800; State v. Hughes, 22- 743. Va.; Pleasants v. Pendleton, 6 Ran. 475. iv TABLE OF CASES PART II. BLOYD v. POLLOCK, 27 W. VA. 75 Continued. 380,a. What constitutes delivery Delivery of goods to carrier for shipment Injury to goods after arrival at destina- tion, and while in care of carrier. W. Va.; State v. Hughes, 22-743, and authorities therein cited. BODKIN v. ARNOLD, 48 W. Va 108. 333,a. Allowance for permanent and valuable improvement 7m- provements made when title deemed good. W. Va.; Bodkin v. Arnold, 32-566; Bodkin v. Arnold, 45- 90; Cain v. Cox, 23-594; Dawson v. Grow, 29-333; Hall v. Hall, 30-779; Raymond v. Camden, 22-180; Lynch v. Andrews, 25-751; Williamson v. Jones, 43-563. Va.; Boiling v. Lersner, 26 Gratt. 36. BOSLEY v. RAILROAD COMPANY, 54 W. VA. 563. 129,j. Delay in shipping cattle Assessment of damages caused by. W. Va.; Beatty Lumber Co. v. W. U. T. Co., 52-412; Brown v. Express Company, 15-812; McGraw v. R. R., 18-361; Maslin v. R. R. Co., 14-180; Rathbone v. R. R. Co., 1-106. Va.; R. R. Co. v. Sayre, 26 Gratt. 238. BOWEN v. CITY OF HUNTINGTON, 35 W. VA. 682. BRADY v. STILTNER, 40 W. VA. 289. 302,m. Malicious prosecution Waiver of preliminary examination prima facie evidence of guilt. W. Va.; Vinal v. Core, 18-2. Va.; Maddox v. Jackson, 4 Mun. 462. BRIDGE COMPANY v. BRIDGE COMPANY, 34 W. VA. 155. 151,a. When all the property sought to be taken is not required. W. Va.; R. R. v. R. R., 17-812. BULLINGTON v. RAILROAD COMPANY, 32 W. VA. 43. C. CARDER v. BANK, 34 W. VA. 38. CARRELL v. MITCHELL, 37 W. VA. 130. 225, p. Equity of redemption Purchase of land by creditors. W. Va.; McCallister v. Cottrell, 24-174. TABLE OF CASES PART II. v CARRELL v. MITCHELL, 37 W. VA. 130 Continued. 225,q. Defeat of tax purchaser's title Payment of taxes by creditor. W. Va.; Orr v. Wiley, 19-151; Williams v. Russell, 18-629. CARRICO v. RAILROAD COMPANY, 35 W. VA. 389. CARRICO v. RAILROAD COMPANY, 39 W. VA. 86. 130,e. Liability of carrier for negligence of contractor. W. Va.; Carrico v. R. R. Co., 39-390. Va.; R. R. Co. v. Sanger, 15 Gratt. 530. 130,d. Liability of carrier for negligence of agents. W. Va.; Carrico v. R. R. Co., 35-389. Va.; R. R. Co. v. Sanger, 15 Gratt. 230; R. R. Co. v. Wrightman, 29 Gratt. 432. 140,a. Obstructions in dangerous proximity to R. R. track. W. Va.; Carrico v. R. R. Co., 35-389; Searles v. R. R. Co., 32-570. Va.; R. R. Co. v. Sanger, 15 Gratt. 230. 140,c. Exposure by passenger to danger. W. Va.; Carrico v. R. R. Co., 35-389. 141,g. Knowledge of carrier of danger to which passenger exposed When negligence of passenger does not relieve carrier from liability. W. Va.; Carrico v. R. R. Co., 35-389; Downey v. R. R. Co., 28-732. Va.; R. R. Co. v. Anderson, 31 Gratt. 812. 143,k. Preponderance of evidence when contributory negligence relied on. W. Va.; Riley v. R. R. Co., 27-446; Snyder v. R. R. Co., 11-14. 141,f. When increased exposure by passenger to danger does not prevent recovery for injury Burden of proof. W. Va.; Carrico v. R. R. Co., 35-389. Va.; R. R. Co. v. Anderson, 31 Gratt. 812; R. R. Co. v. Morris, 31 Gratt. 200. 198,e. Physical suffering. W. Va.; Riley v. Ry. Co., 22-146; Wilson v. Wheeling, 19- 325; Searles v. Ry. Co., 32-370. CHANCEY v. SMITH, 25 W. VA. 404. 401,e. Unlawful entry and detainer Right of action by lessee Abandonment of lease by plaintiff. W. Va.; Duff v. Good, 24-682; Griffith v. McCoy, 8-201; Huffman v. Anderson, 9-817; Mitchell v. Carder, 21-277; Storrs v. Feick, 24-605; Todd v. Yates, 20- 464. Va.; R. R. v. Daniels, 20 Gratt. 344. vl TABLE OF CASES PART II. CHAPMAN v. TOWN OF MILTON, 31 W. VA. 384. 335,a. Ownership of or control over streets. W. Va.; Curry v. Mannington, 23-14; Wilson v. Wheeling, 19-323; Sheff v. City of Huntington, 16-307; Va.; Noble v. City of Richmond, 31 Gratt. 271. CLAIBORNE v. RAILROAD COMPANY, 46 W. VA. 363. 134,d. Arrest of passenger armed with a dangerous iceapon. W. Va.; City of Charleston v. Beller, 45-44. CLARKE v. RAILROAD COMPANY, 39 W. VA. 732. 376,a. Construction of railroad crossing Convenient crossing. W. Va.; Code, Ch. 42, Sec. 14. CLAY v. CITY OF ST. ALBANS, 43 W. VA. 539. 346,a. Liability of municipal corporation for casting surface water upon the property of an individual. Va.; Richmond v. Long, 17 Gratt. 375. COAL COMPANY v. HOWELL, 36 W. VA. 489. COLES v. INSURANCE COMPANY, 41 W. VA. 261. 270,i. Incumbrances upon property Absence of fraud on part of insured. W. Va.; Dietz v. Insurance Co., 31-851; Schwarzbach v. In- surance Co., 25-622. COFFMAN v. HEDRICK, 32 W. VA. 119 . 408,e. Highest quality of mind not required of testator. W. Va.; See Nicholas v. Kershner, 20-256, citing Greer v. Greer, 9 Gratt. 330. CONGROVE v. BURDETT, 28 W. VA. 220. 84,h. Boundary lines Natural boundaries or lines of marked trees Courses and distances. W. Va.; Garrett v. Ramsey, 26-345: 84,a. Enclosures What intruder not limited to Possession of part of the land Interlocks. W. Va.; Garrett v. Ramsey, 26-345. 97,a. Statute of limitations Against both possession and title. W. Va.; Garrett v. Ramsey, 26-345. 221, g. Color of title Not necessary that evidence of be in writ- ing. W. Va.; Garrett v. Ramsey, 26-345. 85,b. Enclosures Possession of any part of the land Superiority of title. W. Va.; Garrett v. Ramsey, 26-345. TABLE OF CASES PART II. vii CONGROVE v. BURDETT, 28 W. VA. 220 Continued. 220,d. Source of title Conflicting title arising from same source Priority of recordation of deeds. W. Va.; Garrett v. Ramsey, 26-345; Core v. Faupel, 24- 238. Va.; Kincheloe v. Tracewell, 11 Gratt. 589. 221,e. Superior title to, and adverse possession of a portion of the land. Same authorities as above. 97,b. Statute of limitations against both possession and title Superiority title. W. Va.; Garrett v. Ramsey, 26-345. 222,j. Boundary lines Natural boundary lines. W. Va.; Core v. Faupel, 24-238; Garrett v. Ramsey, 26- 345. Va.; Kincheloe v. Tracewell, 11 Gratt. 589. COOPER v. RAILROAD COMPANY, 24 W. VA. 37. CORE v. FAUPEL, 24 W. VA. 238. CRI SWELL v. RAILROAD COMPANY, 30 W. VA. 809. COULTER v. BLATCHLEY, 51 W. VA. 163. 100,f. Employment of third party by agent Ratification by prin- cipal of acts of agent. W. Va.; Curry v. Hale, 15-867; Dewing v. Hutton, 48-576. 358,b. Agency Acts, declaration and conduct of agents Ratifi- cation of by principal. W. Va.; Curry v. Hale, 15-867; Dietz v. Insurance Com- pany, 31-851; Dewing v. Hutton, 48-576; Powell v. Love, 36-96. D. DAVIDSON v. RAILWAY COMPANY, 41 W. VA. 407. 368,k. Injuries to persons while trespassing on railroad tracks Assessment of damages. W. Va.; Turner v. R. R. Co., 40-675. 367,h. Duty of engineer and fireman to keep constant look-out for children. W. Va.; Carrico v. R. R. Co., 39-86; Gunn v. R. R. Co., 36- 165; Raines v. R. R. Co., 39-50. DANIELS v. RAILWAY COMPANY, 36 W. VA. 397. DAVIS v. COAL COMPANY, 34 W. VA. 500. 310,g. Place for servant to work Examination of required of master. W. Va.; Snyder v. R. R. Co., 11-17. viii TABLE OF CASES PART II. DAVIS v. COAL COMPANY, 34 W. VA. 500 Continued. 310,h. Same Liability of master for failure to make examina- tion of. 311,1. Same Master's knowledge of danger Entering dangerous place by servant under direction of master. W. Va.; Snyder v. R. R. Co., 11-17. DAVIS v. LIVING, 50 W. VA. 431. DAVIS v. TELEGRAPH COMPANY,, 46 W. VA. 48. DAVIS v. WEBB, 46 W. VA. 6. 215,a. Detinue Title to property. W. Va.; Jones v. Reid, 12-350. Va.; Bank v. Waddill, 27 Gratt. 451; Wiley v. Givens r 6 Gratt. 277. DEITZ v. INSURANCE COMPANY, 33 W. VA. 526. 282,c. Knowledge of insurer as to destruction of property Re- fusal to pay loss. W. Va.; Sheppard v. Ins. Co., 21-368. 281,b. Same Declarations of insurer as to refusal to pay loss. W. Va.; Sheppard v. Ins. Co., 21-368. 266,b. Mistake as to name of party insured Knowledge and acts of agent of insurer. W. Va.; Henley v. Menefee, 10-771; Troll v. Carter, 15- 567. Va.; Peyton v. Harmon, 22 Gratt. 266. 267,c. Same. Same authorities. DETWILER v. GREENE, 1 W. VA. 109. DICKESHIED v. BANK, 28 W. VA. 340. 241,a. Gifts causa mortis What necessary to constitute. Va.; Barker v. Barker, 2 Gratt. 344; Brown v. Handley, 7 Leigh. 119; Durham v. Dunkly, 6 Rand. 135; Hunter v. Jones, 6 Ran. 541; Miller v. Jeffries, 4 Gratt. 972; Patterson v. Franklin, 7 Leigh. 590; Shirley v. Long, 6 Ran. 735. 342,b. Place of gift Residence of donor and donee. Same authorities as above. DINGESS v. BRANSON, 14 W. VA. 100. 213,a. Competency of grantor to execute deeds Mental capacity Intentions of grantor. See also Jarrett v. Jarrett, 11 W. Va. 626. TABLE OF CASES PART II. ix DIMMEY v. RAILROAD COMPANY, 27 W. VA. 32. 389,c. Contributory negligence Burden of proof. W. Va.; Sheff v. Huntington, 16-307; Snyder v. R. R. Co., 11-14; Washington v. R. R. Co., 17-190. DOWNEY v. RAILROAD COMPANY, 28 W. VA. 732. 326,a. Care required of servants Perilous position. W. Va.; Baylor v. R. R. Co., 9-270; Washington v. R. R. Co., 17-190. Va.; R. R. Co. v. Sherman, 3 Gratt. 602; R. R. Co. v. Whittington, 3 Gratt. 805. 326,b. Same Opportunity and duty of servant to avoid perilous position. Same authorities as above. E. EASTBURN v. RAILROAD COMPANY, 34 W. VA. 681. 327,d. Servant knowingly assuming place of danger Failure to avert danger. W. Va.; Downey v. R. R. Co., 28-732. F. FAWCETT v. RAILROAD COMPANY, 24 W. VA. 755 373,a. Causing loss of personal property Burden of proof Pre- ponderance of evidence. W. Va.; Washington v. R. R. Co., 17-190. FERRELL v. FORNEY, 4 W. VA. 729. 410,1. Frand or undue influence in procurement of will Corecion of testator. Va.; Green v. Green, 9 Gratt. 333; Parramoure v. Taylor, 11 Gratt. 229. 411,m. Understanding of testator as to beneficiaries of will. Same authorities as above. FISHER v. RAILROAD COMPANY, 42 W. VA. 183. 144,o. Negligence Apportionment of negligence. W. Va.; Butcher v. R. R. Co., 37-180. 143,n. Concurrent negligence. W. Va.; Gerity v. Haley, 29-98. Va.; Dunn v. R. R. Co., 78-645; R. R. Co. v. Yeamons, 86-860; Rudd v. Ry. Co., 80-549. x TABLE OF CASES PART II. FOLEY v. CITY OF HUNTINGTON, 51 W. VA. 396. 336,e. Powers, duties and liabilities of municipal corporations Contributory negligence Burden of proof. W. Va.; McCreary v. R. R. Co., 43-110; Wilson v. Wheeling, 19-232; Yeager v. Bluefleld, 40-484. 340,m. Condition of street and sidewalk at time of injury Con- dition of before or after injury. Same authorities as above. FOX v. RAILROAD COMPANY, 34 W. VA. 466. 147,c. Permanent injury to real property. W. Va.; Johnson v. Parkersburg, 16-405. FRANKLIN v. GEHO, 30 W. VA. 27. 399,a. Forcible entry and detention of lands. W. Va.; Hayes v. Altizer, 24-505. G. GARBER v. BLATCHLEY, 51 W. VA. 147. 420,a. Effect of failure to produce witness. W. Va.; Dewing v. Hutton, 48-576; Hefflebower v. Diet- rich, 27-16; Trust Co. v. McClellan, 40-405; Gart- lan v. Hickman, 56-75. 357,a. Oil and Oas leases Machinery and fixtures Reasonable time given lessee to remove same from leased premises. W. Va.; Guffy v. Hukill, 34-49; Steelsmith v. Gartlan, 45- 27; Urpman v. Oil Co., 53-51. GAS COMPANY v. WHEELING, 8 W. VA. 320. GASTON v. MACE, 33 W. VA. 14. GIEBELL v. COLLINS COMPANY. 54 W. VA. 518. 307,a. Machinery and appliances Character of required to be furnished. W. Va.; Burns v. Coal Co., 27-286. 308,c. Reasonably suitable and safe machinery and appliances and safe place to work Duty of master to furnish. W. Va.; Burns v. Coal Co., 27-286. GILLFNGHAM v. RAILROAD COMPANY, 35 W. VA. 588. 202,n. False arrest Outrage, indignity and humiliation put upon party. W. Va.; Ricketts v. Ry. Co., 33-433. 235,c. Scope of authority of agents or conductor. W. Va.; Tracy v. Cloud, 10-19. Va.; Crump v. Mining Co., 7 Gratt. 52; Harris v. Nicho- las 5 Mun. 483. TABLE OF CASES PART II. xi GROCERY COMPANY v. WATKINS, 41 W. VA. 787. 354,a. Negotiable instruments Joint promisor When party liable as. W. Va.; Burton v. Hansford, 10-470. GROVER v. RAILROAD COMPANY, 53 W. VA. 103. H. HAINES v. COCHRAN, 26 W. VA. 719. 397,a. Right of title to, and right to possession of property. Va.; Newsom v. Newson, 1 Leigh. 86. HALL v. HALL, 27 W. VA. 468. 94,a. Payment of taxes by one holding title under a void judicial sale. W. Va.; Bradley v. Ewart, 18-589; Hall v. Hall, 12-1; Lynch v. Andrews, 26-541; Simpson v. Edmiston, 23-675; Sturm v. Fleming, 26-541; Whitman v. Sayers, 9-171. Va.; Lohr v. Miller, 12 Gratt. 452. 94,b. Same Privity of estate between purchaser and legal owner. Same authorities as above. HALL v. RAILROAD COMPANY, 44 W. VA. 36. 131,f. Excessive railroad fares Schedule of rates Rules of com- pany Violation of by conductors. W. Va.; Gillingham v. R. R. Co., 35-588; Gregory v. R. R. Co., 37-606. 131,g. Same Concerning act of conductor in collection of ex- cessive fares. Va.; Brockenbrough v. Spindle, 17 Gratt. 20. HANNUM v. HILL, 52 W. VA. 166. 200,1. Displaced telephone wires Injuries caused by Liability for. W. Va.; Schwartz v. Schull, 45-405. HARGREAVES V. KIMBERLY, 26 W. VA. 787. 191,h. Diversion of stream of surface water Encroachment of stream upon property of land owner. W. Va.; Gillison v. Charleston, 16-282; Knight v. Brown, 25-808. 404,a. Liability for changing the natural course of a stream. Same authorities as above. 405,b. Rights of defendant when properly on his own ground Usual condition of stream. Same authorities as above. xii TABLE OF CASES PART II. HARGREAVES v. KIMBERLY, 26 W. VA. 787 C:n- tinued. 405,c. Same. Same authorities as above. HAST v. RAILWAY COMPANY, 52 W. VA. 396. 375,c. Permanent injuries to real estate When value of property depreciated. W. Va.; Blair v. City of Charleston, 43-62; Quinn v. R. R. Co., 46-151; Stewart v. R. R. Co., 38-438. 193,1. Permanent injury to real estate by railroad company Concerning depreciation in value caused by. W. Va.; Ball v. Cox, 29-407; Dickens v. Salt Co., 41-511; Talbott v. King, 32-6. Va.; Sampson v. Goochland, 5 Gratt. 241. HAWKER v. RAILROAD COMPANY, 15 W. VA. 628. 372,a. Injuries to animals Injuries occurring on track. W. Va.; Elaine v. R. R. Co., 9-252 HOFFMAN v. DICKINSON, 21 W. VA. 142. 188,b. Defective machinery and appliances Knowledge of master as to. 'W. Va.; Burns v. Coal Company, 27-283; Cooper v. R. R. Co., 24-37; Criswell v. Ry. Co., 30-798; Dimmy v. R. R. Co., 27-32. HOOD v. BLOCK, 29 W. VA. 244. HOUSTON v. McNEER, 40 W. VA. 365. 112,a. Assignment of bonds without recourse. W. Va.; Crislip v. Cain, 19-438; Robinson v. Welty, 40-385; Wamsley v. Currence, 25-543. 112,b. Same Money due at time of assignment. Same authorities as above. 112,c. Same Effect of written agreement Risk of collection Parol evidence. Same authorities as above. HURXTHALL v. BOOM COMPANY, 53 W. VA. 87. 194,o. Mitigation of damages. See, also, Vinal v. Core, 18 W. Va. 4. HUTCHINSON v. PARKERSBURG, 25 W. VA. 226. 192J. Changing grades of streets Damages resulting from. W. Va.; Johnson v. Parkersburg, 16-426. TABLE OF CASES PART II. xiii I. ILSLEY v. WILSON 42 W. VA. 757. 87,e. Adverse possession of real estate in third party. Va.; Cline v. Caton, 22 Gratt. 392; Korner v. Rankin, 11, Gratt. 427; Overton v. Davisson, 1 Gratt. 223; Taylor v. Burnsides, 1 Gratt. 196. 87,f. Breech of covenant Statute of limitations. W. Va.; Riddle v. Core, 21-53. J. JARRETT v. STEVENS, 36 W. VA. 445. 93,b. Necessity for connecting title of land Lengthening posses- sion. 93,c. Possession limited to color of title Actual enclosures. W. Va.; Adams v. Alkire, 20-480; Oney v. Clendennin, 28- 35, 52. 82,a. Continuity of possession Tacking on different adverse possessions. Va.; Stonestreet v. Doyle, 75-356. JOHNSON v. BROWN, 13 W. VA. 71. 291,a. Libel and slander Matter published in course of judicial proceedings. Va.; Mosley v. Moss, 6 Gratt. 549; Dillond v. Collins, 25 Gratt. 351. 291,b. Same Malice towards plaintiff. Dillard v. Collins, 25 Gratt. 351. JOHNSON v. BURNS, 39 W. VA. 658. JOHNSTON v. BANK, 27 W. VA. 343. JONES V. RAILROAD COMPANY, 14 W. VA. 514. JORDAN v. BENWOOD, 42 W. VA. 312. 346,b. Drains or sewerage for carrying away water from cellars Concerning requirements of municipal corporation to furnish. W. Va.; Mendel v. Wheeling, 28-233; Gillison v. Charles- ton, 16-282; Knight v. Brown, 25-808. 347,c. Raising grade of street. Same authorities as above. 347,d. Same Injuries resulting from other causes. Same authorities as above. 392,b. Same as 346,b. 393,c. Same as 347,c. 393,d. Same as 347,d. xiv TABLE OF CASES PART II. K. 'KERR v. LUNSFORD, 31 W. VA. 659. 418,z4. When opinions of expert witnesses can be given on testi- money already in the case. W. Va.; McMechen v. McMechen, 17-683. KYLE v. HARVEY, 25 W. VA. 716. L. LAIDLEY v. LAND COMPANY, 30 W. VA. 505. 214,b. Defective acknowledgment of married women. W. Va.; Blair v. Sayre, 29-604; Laidley v. Knight, 23-741; McMullen v. Egan, 21-245; Pickens v. Kniseley, 29-1. Va.; Grove v. Trumbo, 14 Gratt. 541; Hairston v. Ran- dolph, 12, Leigh. 445-459; Sister v. McClanahan, 2 Gratt. 280; Todd v. Baylor, 4 Leigh. 498. LAND COMPANY v. INSURANCE COMPANY, 35 W. 278,b. Time for making proof of loss Waiver of proof. Va. 666. W. Va.; Deitz v. Ins. Co., 33-526; Nease v. Ins. Co., 32-283; McFarland v. Ins. Co., 6-435; Sheppard v. Ins. Co., 21-383, LANDERS v. RAILROAD COMPANY, 46 W. VA. 492. 190,e. Ejecting persons from freight trains Carrier's liability for injuries caused by. W. Va,; Bess v. Ry. Co., 35-492; Crogan v. Ry. Co., 39-415. luO.f. Same Use of needless force in. Same authorities as above. 370,a. In whom power or authority to eject rests. 370,b. Same authorities as above. 138,f. Special instructions of company as to movement of trains Acts of conductor when within the scope of his duty and power. W. Va.; Bess v. R. R. Co., 35-492. LANE v. BLACK, 21 W. VA. 617. 101,g. False representations by agent Concealment of facts by agent. Va.; Crump v. Mining Co., 7 Gratt. 3<>8; Grim v. Byrd, 32 Gratt. 293. lOl.h. Same. Same authorities as above. TABLE OF CASES PART II. XV LAWSON v. CONOWAY, 37 W. VA., 159. 362,a. Degree of care and skill required of physicians Special agreement Inference as to negligence. W. Va.; Kuhn v. Brownfield, 34-256. LAWSON v. DALTON, 18 W. VA. 766. 404,b. Unlawful entry and detainer Within what time action must be brought. W. Va.;Mann v. Bryant, 12-516. LEVY v. INSURANCE COMPANY, 58 W. VA. . LOGIE v. BLACK, 24 W. VA. 1. 159,i. Contracts Additional claims procured through efforts of third parties. W. Va.; Seltzer v. Beall, 19-274. LOWE v. SETTLE, 32 W. VA. 600. 82,e. Deed conveying title Effect of delivery of Adverse pos- session What necessary to establish. W. Va. ; Core v. Faupel, 24-239 ; Lowe v. Settle, 22-387. 89,b. Holding by vendee as against vendor Executory contracts Future conveyances. W. Va.; Core v. Faupel, 24-239. LUMBER COMPANY v. WARD, 36 W. VA. 573. M. McCREERY v. RAILROAD COMPANY, 43 W. VA. 110. 313,b. Railroad track and road beds Duty of master to keep clear of dangerous obstructions. W. Va.; Flanagan v. R. R. Co., 40-436; Robinson v. R. R. Co., 40-583. McDOUGAL v. MUSGRAVE, 46 W. VA. 509. 92,g. Expiration of landlord's life estate Tenant's remainder in fee dependent upon. W. Va.; Hurst v. Hurst, 7-289. Va. ; Humphrey v. Foster, 13 Gratt. 65. McMASTER v. DYER, 44 W. VA. 644. 360,d. Exemplary damages Definition of. W. Va.; Mayer v. Frobe, 40-246, overruling Beck v. Thomp- son, 31-459, and Pegram v. Stortz, 31-220. xvt TABLE OF CASES PART II. McMECHEN v. McMECHEN, 17 W. VA. 683. 410,j. Fraud or undue influence in procurement of will Burden of proof. Va.; Pasley v. English, 10 Gratt. 242; Rea v. Trotter, 26 Gratt. 585. McVEY v. RAILROAD COMPANY, 46 W. VA. 111. 369,m. Injuries to persons on railroad tracks Gross negligence Contributory negligence. W. Va.; Newsome v. Ry. Co., 30-228. McVEY v. St. CLAITl COMPANY, 49 W. VA. 412. 317,a. Fellow-servant When superiority and power and authority does not destroy relationship of. Citing in general, Jackson v. R. R., 43-380. MASLIN v. RAILROAD COMPANY, 14 W. VA. 180. 126,d. Special contracts Delay in shipment under Injuries re- sulting from negligence. Va.; R. R. Co. v. Sayers, 26 Gratt. 648. MASON v. BRIDGE COMPANY, 20 W. VA. 223. See section 7, Ch. 44 Code. MAUPIN v. INSURANCE COMPANY, 53 W. VA. 557. 276,x. Books and papers Parol waiver of requirements as to where to be kept.. "Iron-Safe Clause." W. Va.; Ins. Co. v. Board, 49-360. 266,a. Written agreement exclusive evidence of contract. W. Va.; Crislip v. Cain, 19-438; Houston v. McNeer, 40- 368; Ins. Co. v. Board, 49-360; Knowlton v. Camp- bell, 48-294. MAXWELL v. CUNNINGHAM, 50 W. VA. 298. 81,a. Color or claim of title What party relying on under must show. W. Va.; Core v. Faupel, 24-238. 88,a. Entry upon land under title of legal owner How contro- verted. W. Va.; Core v. Faupel, 24-238. MAXWELL v. KENT, 49 W. VA. 542. MAYER v. FROBE, 40 W. VA. 246. (This case overrules Beck v. Thompson, 31 W. ya. 459. and Pegram v. Stortz, 31 W. Va. 220, as to exemplary damages.) TABLE OF CASES PART II. xvil MAYER v. FROBE, 40 W. VA. 246 Continued. 196,b. Same Exemplary damages. W. Va.; Battrell v. Ry. Co., 34-232; Riddle v. McGinnls, 22-253. Va.; Boreland v. Barnett, 76-128. 197,c. Same, and same authorities as above. 287c. Exemplary damages.. Same authorities as above. MEDLEY v. INSURANCE COMPANY, 55 W. VA. 342. 270,h. Incumbrances upon property insured Knowledge of in- surer as to. W. Va.; Bank v. Ins. Co., 55-261; Bryan v. Ins. Co., 8-605; Miller v. Ins. Co., 12-116; Maupin v. Ins. Co., 53- 557. 269,f. Title or ownership of property insured Knowledge of in- surer as to. W. Va.; Cleavenger v. Ins. Co., 47-595; Quarrier v. Ins. Co., 10-507; Wolpert v. Ins. Co., 44-734. Va.; Ins. Co. v. Neill, 28 Gratt 389; Ins. Co. v. Rodefer, 97 Va.. 747. MICHAELSON v. CAUTLEY, 45 W. VA. 533. MILLER v. PULP COMPANY, 38 W. VA. 558. 213,a. Injury to water mill by construction of dams and gates. W. Va.; Hargreaves v. Kimberly, 26-788; R. R. Co. v. Fore- man, 24-662. MOORE v. DOUGLASS, 14