CHARLESTON.

#### Charles Shearer v. The Gauley Mountain Coal Company.

Submitted October 10, 1922.

Decided October 17, 1922.

Appeal and *Error*— Justified *Verdict on Uneontradieted Competent Evidence Not Set Aside for Admission of Improper-Evidence or for Erroneous Instructions.*

Where, upon the trial of a case, the competent and proper evidence offered by the plaintiff is uncontradicted, and the verdict rendered by the jury is the only one that the evidence justifies, the same will not be set aside because the court admitted immaterial and improper evidence and gave to the jury improper instructions.

Error to Circuit Court, Fayette County.

Suit by Charles Shearer against the Gauley Mountain Coal Company. From a judgment for plaintiff, defendant brings error.

*Affirmed.*

*Hubbard & Bacon,*for plaintiff in error.

*W. B. Bennett,*for defendant in error.

Rite, Judge:

This suit was originally brought before a justice of the peace to recover a 'balance of wages claimed by the plaintiff to be due him from the defendant. From an adverse judgment, rendered by the justice, the defendant appealed to the circuit court, where a trial resulted in a verdict and judgment in favor of the plaintiff for the sum of $107.55, to review which this writ of error is prosecuted.

It appears that the plaintiff had been employed by the defendant as stable boss for a number of years at a monthly *30salary. Prior to tbe month of November, 1917, the United States Government had fixed the price of coal. Those employed in the production of coal demanded increased wages and to permit such an increase the Fuel Administration authorized an advance in the price. This wage increase took effect on the first day of November, 1917. For the men employed by the day or month the increase contemplated amounted to $1.40 per day. According to plaintiff’s testimony, he claimed the benefit of the increase and the general manager of the defendant conceded that he was entitled to an advance in wages. He was then receiving $96.70 per month. The defendant’s general manager proposed to him to increase his compensation 25%. The plaintiff says he declined to accept this, and the general manager advised him to continue at work and the matter of wages would be adjusted. He says he conferred with the general manager a number of times and was finally advised that his wages would be increased $1.40 per day. In the meantime, upon the promise of the general manager to adjust the matter satisfactorily, he accepted the 25% increase, or rather he accepted wages based upon an advance of 25% over his former. wages, with the understanding that the difference would be settled when a basis was finally agreed upon. The general manager finally agreed that he should have an increase of $1.40 per day, but contended that the increase should only apply to twenty-five days in each month, or a total increase of $35.00 per month. The plaintiff says he declined to accede to this proposal, but claimed that, inasmuch as his duties required him to work every day in the month, including Sundays, he should have’ the increase for every day. The defendant’s general manager then proposed that they leave that question to be determined by a man by the name of Allison O. Smith, and if Smith decided that the increase should be paid for every day in the month, the defendant would pay upon that basis, but if, on the other hand, Smith decided that the plaintiff was entitled to the increase for only twenty-five days in each month, he would accept settlement upon that basis. The plaintiff agreed to this proposal. Before Smith made known his *31decision to. tbe parties, tbe plaintiff was discharged and settlement made with bim upon tbe basis of tbe defendant’s contention, with tbe understanding with tbe defendant’s general manager that additional amount would be paid bim if Smith decided that be was entitled to it. Susequently Smith decided that be should receive tbe increase for every day in tbe month inasmuch as bis duties required bim to work every day. Upon tbe defendant’s refusal to pay tbe additional amount, this suit was brought with tbe result above indicated.

Tbe above are tbe pertinent facts detailed by tbe plaintiff. There was considerable improper and incompetent evidence introduced by bim, among other items thereof being unau-tbentieated reports and communications from tbe United States Fuel Administration. These reports proved nothing material in tbe case, and being entirely unautbenticated, of course, should not have 'been admitted even if otherwise proper. Their admission forms, tbe basis of one of tbe assignments of error. In tbe view we have of tbe case their admission was entirely harmless. Tbe defendant did not undertake to contravert tbe evidence offered by tbe plaintiff. It did not introduce its general manager as a witness, and, of course, tbe testimony of tbe plaintiff as to tbe negotiations and transactions with bim must be taken as true. Tbe defendant did introduce its superintendent who testified that the plaintiff received bis wages twice a month on the basis of a twenty-five per cent increase over bis former wages, . and that when he left tbe defendant’s service be was paid an additional amount which exactly made tbe increase paid bim $1.40 per day on tbe basis of twenty-five days a month. Instead of controverting tbe plaintiff’s statements, this evidence was in entire harmony with them. Tbe case is somewhat confused because of tbe immaterial and impertinent matter introduced, but upon a view of tbe competent evidence, the plaintiff was- clearly entitled to recover, and tbe jury properly could not have rendered any other verdict. Tbe action of the-court in giving certain instructions on motion of the plaintiff and refusing to give certain others offered by the defendant is assigned as error. Tbe instructions given on *32behalf of the plaintiff contain elements not involved in the case.- This could not have prejudiced the defendant as it made no real defense to the suit. There was no evidence upon which to base the instructions offered by the defendant which the court refused. .The plaintiff, upon the showing made by the record, was clearly entitled to the judgment rendered in his favor. The fact that' improper evidence was admitted and inapplicable instructions given will not justify setting aside the only proper verdict that could be rendered, and the judgment complained of will be affirmed.

*Affirmed.*