The Sunday telegram. [volume] (Clarksburg, W. Va.) 1914-1927, 1916-04-02

BY the contract above stated. the
plaintih as sherin neither sold the
office, nor slet It to farm" The de-
lfendant, J..so., Shinn, acquired no I'm
terest whatever In the office.
A person paying money under q
mistake OF fact to one not entitled to
receive or retain It, may recover II
N assumpsit. Fl
A plea which raises NO substantial
defense to the action. is bad.
In an action Of assumpsit, where
there 10 q plea OF non-assumpsit. and
issue thereon, and fair, full, and COM
plete trial had on the merits by the
court in lieu Of Jury. and judg-
ment for the defendant. and Il APP
pears to this court upon writ OF err
ror, that the Judgment under the law
and the evidence should have been
for the plaintiff, this court will re-
verse the Judgment OF tho circuit
court and enter judgment for the
plaintiff, Notwithstanding the court
permitted the defendant to Ale a de-
flcient plea In the case over the OBJ
lection Of the plaintiff. The defend
ant will not be heard to complain Of
bad plea filed by him to which the
defendant Objected, and the plaintiff
will not be Injured, Or have cause to
complain.
Gritith VS.. American Coal Company
Mercer county; affirmed by Judge Ma
son.
II an instruction asked for does not
correctly PROFOUND the law, the court
may correct and give II In the modi-
fed form. .
Where an interrogatory has been
submitted to tho jury, and the Jury
fails to answer 1t. or report to the
court that they disagree as to the an
swer, and a the same time return a
general verdict, and the verdict is re-
ceived by the court and the jury Is
discharged, and the party who sub
mitted 1t does not object before the
jury Is discharged, to the discharge
Of the jury without answering the In
terrogatory,th The will be deemed to
have waived the right to have the
answer. l RAJ
Section 5, chapter 1871, Of the code,
authorizes the court upon the trial Of
issues, to submit to the jury questions.
and to require the jury to render sep
arate verdicts upon the issues. or
find in writing upon particular ques-
tons Of fact. where any such sep
arate verdict or special finding shall
be inconsistent with the general YER
dict, the former shall control the lat
ter" The purpose of the statute is
to ascertain and separat one or more
controlling facts, to the end that the
existence or non-existence Of some
facts upon which the issue turns may
be deliberately examined. patiently
considered, and expressly found. so
that proper Judgment may be rem
dered, according to the truth and the
very right Of the case. s III
It is proper not to permit an i'm
material question to be propounded.
and 1t is immaterial, unless an answer
thereto. IL contrary to the general
verdict. would control the same, and
be conclusive Of the verdict.
The special findings, taken as a
whole, must be clearly inconsistent
with the general verdict, and, to be.
inconsistent, they must clearly ex-
clude conclusion that would authorize
u NtEulCL lOE tu6
A violation Of the statute inhibiting
the employment Of boys under IA
years Of age in coal mines constitutes
actionable negligence whenever that
violationsis the natural and proximate
cause Of an injury. eses ~
The violation Of the statute is
rightly considered the proximate cause
Of an injury which Is a. natural, prob
able. and anticipated consequence Of
the non-observance. Hi7i,t 49, 5jy5t
The employer Is not, as. a matter OF
law, chargeable with all injuries that
result during the unlawful employ
ment. He is only liable for those In
juries against which the statute is in
tended to guard. lfs
II the employment Is unlawful, the
servant cannot be held to have as
sumed the risks incident thereto. In
GLIDING the fisk OF injury by fellow
servants. n.tii ~ hi
gcontributory negligence on the part
OF boy injured in the unlawful en-
ployment may avail the employer as
defense, unless 1t be the same that
must reasonably be anticipated as a
probable consequence OF the flon-ob-
servance Of the law.
To sustain the defense of contrib
utory negligence in such cases, 1t
must be shown not only that the In
FAINT employee had capacity to under
stand and appreciate his instructions
and WARNINGS against the dangers 1n-
cident ito his unlawful employment,
but that he in fact did understand
them. and that his supposed Negligent
act was not such MS the statute was
intended to provide against, hut also
that he was possessed OF such unus-
ua1 wisdom and sagacitv as to take
him out Of Youths under IA years
which the statute was intended to pro-
tect.
An appellate court will not grant a
new trial on the sole ground that the
verdict Is contrary to the. evidence.
unless the verdict is r'anifestly wrong
Or is plainly not warranted by the
facts.