in the surviving plaintiffs, and the action may be prosecuted by them."

From these authorities my conclusion is, that the cause of action in the case under consideration and the entire cause of action survived to R. D. E. Rowe, Nellie A. Batchelder, and James E. Rowe, plaintiffs, and that they had the right to prosecute the suit for the entire damages sustained, and not for any aliquot part thereof; but as the jury were instructed at the instance of the defendant that they should assess only three-fourths of said damages in favor of the plaintiffs, this is an error of which the defendant cannot complain, although, in my opinion, it would have been the duty of the jury to have found the entire damages to which the original plaintiffs were entitled, and then the plaintiffs could have settled with the estate of the deceased plaintiff.

Did the trial court err in its order of the twenty-fourth day of February, 1894, wherein it states that the death of Charles O. Rowe is suggested, and his estate has been committed to the sheriff, and directs that the suit proceed in the name of J. G. Hurst, committee and administrator of said Charles O. Rowe, and in the order of December 1, 1894, wherein it was ordered that said suit in the name of the administrator of Charles O. Rowe do proceed separately from the suit in the name of the surviving plaintiffs? And, if error, is it such as the defendant could complain of? I regard it as plainly error, for the reason that under the law, as we have seen, the suit should have abated as to Charles O. Rowe, and should have proceeded in the name of the surviving plaintiffs; and I consider it error of which the defendant could complain, for this reason: It entails upon the defendant the defense of a suit which is unauthorized by law, as the action should have abated as to said Charles O. Rowe. And this error is more apparent from the fact that, if another one or two of the plaintiffs had died pending the suit, the defendant would have been required to defend two or three suits for the same cause of action.

Did the court err in rejecting instruction No. 2 asked for by the defendant in regard to the measure of damages, in which the court was asked to instruct the jury that, if 558 they should find from the evidence that any damages were inflicted upon the property in question by the defendant, they should find for only such difference in the value of said property at the time the said damages were inflicted and the value of said property before the said damage was so done? Upon this question this court laid down the rule in the case of Stewart v. Ohio River R. R. Co., 38 W. Va. 438, as follows: "The measure of the damages is such a sum as

will make the owner whole; that is, the depreciation of the market value of the abutting property caused by the railroad company laying their track and running their trains in the street. In such case, if the fair market value of the abutting property is as much immediately after the construction of the railroad as it was immediately before such improvement was made, no damages are sustained for which a recovery can be had." This instruction No. 2 was in accordance with the rulings of this court upon the measure of damages upon a case such as is presented by this record, and should have been given to the jury, to aid them in coming to a proper conclusion. It is claimed that the court erred in overruling the motion to set aside the verdict as contrary to the weight of evidence, and contrary to the law and the facts, but by reason of the fact that the above instruction was improperly excluded from the jury, which would have properly presented the law as to the manner of determining the amount of damages, we are relieved from going into an analysis of the testimony.

It is further claimed as error that the court refused to set aside the verdict on account of the misconduct of the juror Jacob Kephart. Now, the fact cannot be disguised that this juror, in speaking to the two witnesses, and using the expression, "The pulpmill ought to be sunk," meant and intended the pulpmill that was defendant in this action, and it manifested a feeling and prejudice that a juryman ought not to entertain who is about to try a cause. The county of Jefferson is large, and we must presume that many qualified men free from prejudice could have been obtained to try this cause, and we think the courts cannot be too careful in guarding the purity of verdicts and securing juries free from prejudice. In the case of Flesher v. 559 Hale, 22 W. Va. 44 (second point of syllabus), it was held that: "If, after the jury has been sworn, facts are established which show that improper influences were brought to bear upon it, or that its members, or any of them, were guilty of improper conduct, such as might have resulted prejudicially to the losing party, a presumption arises against the purity of the verdict, and, unless there is testimony which shows the verdict was not affected by such influences or conduct, it will be set aside; and the burden of producing such testimony is upon the party claiming the right to keep the verdict." Now, it is true that Jacob M. Kephart, the juryman who was accused by the affidavit of two witnesses of using the above expression in regard to the defendant in this case, states in his affidavit that he was not acquainted with the plaintiffs or defendant, and was not aware of any prejudice or bias in said suit which would prevent him

from giving an impartial verdict in said case, and that in rendering the verdict he acted according to the law and the evidence; that he knew Shrewbridge and Dittenger, who made affidavits to what was said by him, but had no conversation with either of them on the subject of the suit during the progress of the trial, or at any other time. This juryman seems to have been selected as foreman, and to have signed the verdict, and two witnesses swear that he used the expression that "the pulpmill ought to be sunk”; and it is fair to presume that, if this indication of feeling and prejudice toward the defendant had been brought to the attention of the learned judge who presided at the trial of this case, said juryman would never have been allowed to return a verdict in this case.

The judgment complained of must be reversed, the verdict set aside, and a new trial awarded, with costs to the appellant.

BRANNON, J., dissenting. I dissent from the opinion by Judge English reversing the judgment because of the refusal to abate the attachment. I am clearly of the opinion that the court ought to have abated the action as to the dead coplaintiff, and have 560 ordered the case to proceed in the name of the survivors, as two suits could not be made out of one, especially as the whole cause of action remained with the survivors, leaving nothing in the administrator of the dead man on which to prosecute the suit. Code chapter 127, section 2, does save the action from death under the common law, but only in favor of the survivors. But the court has not yet tried that branch of the suit standing in the name of the administrater. If that be tried, and judgment given for plaintiffs, a writ of error would remedy the error of persisting in that branch of the suit. That bridge cannot be crossed until it shall be reached. The court tried the action as to the surviving plaintiffs just as it ought to have done if a proper order of abatement had been entered. Then how can you reverse a judgment for that cause in that branch of the suit, so to call it, but really the suit proper? The defendant is not injured in this present trial by the refusal to abate as to the dead man. If even there had been recovery of the whole-not merely three-fourths of the damages, that would have been no ground of complaint. The only error in this case is the limiting to the recovering of threefourths, but that is an error in favor of the defendant. I agree to reverse for the refusal of instruction No. 2. I see no error in refusing No. 1. The action was for permanent injury: Watts v. Norfolk etc. Ry. Co., 39 W. Va. 196; 45 Am. St. Rep. 894.

COTENANCY--SURVIVORSHIP OF CAUSE OF ACTION.-At common law in all actions where there were two or more plaintiffs, the death of one of them, pending the action, was an abatement of it: Hanson v. Barnes, 3 Gill. & J. 359; 22 Am. Dec. 322. But since statute 8 & 9 William III, chapter 11, section 7, it is certain that if plaintiffs are joint tenants the death of one does not occasion an abatement of the action: Freeman on Cotenancy and Partition, 2d ed., sec. 364. Upon the death of one of the parties entitled to a joint action, the whole right of action not only accrues to the survivor during his lifetime, but, if not prosecuted to judgment by him, vests, at his death, in his executor or administrator: Freeman on Cotenancy and Partition, 2d ed., sec. 363.

DAMAGES-INJURY TO REAL PROPERTY-MEASURE OF.The measure of damages recoverable for the destruction of shade trees on the plaintiff's premises is the difference between the value of such premises before and after such destruction: Evans v. Keystone Gas Co., 148 N. Y. 112; 51 Am. St. Rep. 681. If land is wrongfully overflowed, and the owner thereby deprived of its use, the true measure of damages is its fair rental value, and not the contingent profits of crops which might have been raised on it had it not been overflowed: Chicago v. Huenerbeln, 85 Ill. 594; 28 Am. Rep. 626. When an owner of property is in actual possession and use of it, he is entitled to recover all damages flowing directly from the tort complained of, whether the injury is permanent or temporary: Seely v. Alden, 61 Pa. St. 302; 100 Am. Dec. 642.

NEW TRIAL-MISCONDUCT OF JURORS AS GROUND FOR.Misconduct of a juror not occasioned by the prevailing party, not Indicative of improper bias, and which, in the judgment of the court, could not have had an unfavorable effect, is not a sufficient ground for a new trial: Pettibone v. Phelps, 13 Conn. 445; 35 Am. Dec. 88; Dent v. King, 1 Ga. 200; 44 Am. Dec. 638. See monographic note to Hilton v. Southwick, 35 Am. Dec. 254-260. The acceptance of drink by a juror, furnished at the expense of the prevailing party, or his attorney, will turn the scale against the verdict, unless it is shown that it was not intended to influence his action, and had no influence on his mind: Bradshaw v. Degenhart, 15 Mont. 267; 48 Am. St. Rep. 677. See, also, State v. Broussard, 41 La. Ann. 81; 17 Am. St. Rep. 896; Wright v. Abbott, 160 Mass. 395; 39 Am. St. Rep. 499.

CUNNINGHAM v. BUCKY.

[42 WEST VIRGINIA, 671.]

APPELLATE PROCEDURE-ERRORS, WHEN MAY BE DISREGARDED.-Though the instructions given to the jury were erroneous, the judgment will not be reversed if the conclusion reached by the verdict was sustained by the decided or plain preponderance of the testimony.

AN INNKEEPER IS ANSWERABLE TO HIS GUESTS for the theft of the latter's money committed by the former's em. ployé.

INNKEEPERS-NEGLIGENCE OF GUESTS.-The fact that the guest was drinking and was careless of his money, exhibiting it freely and refusing to give it into the care of the innkeeper's wife does not establish such negligence on the part of the guest as to re lieve the innkeeper from liability for the loss of such moneys through the theft of one of his employés.

C. H. Scott and L. D. Strader, for the plaintiff in error.

E. D. Talbott, for the defendant in error.

071 DENT, J. W. A. Cunningham obtained a judgment for two hundred and fifty-four dollars and forty cents on the eighteenth day of May, 1895, in the circuit court of Randolph county against Alpheus Bucky, who obtained a writ of error therefrom to this court.

The errors assigned are for the refusal of the court to give certain instructions for the defendant, and the giving of certain instructions for the plaintiff, and the overruling of the motion for a new trial.

The cause of the action is the loss of two hundred and forty 672 dollars on the part of plaintiff, by theft, while stopping at defendant's hotel, in the town of Beverly, Randolph county. The evidence is all certified. Hence it becomes the duty of the court, in accordance with its former rulings, to first determine whether the verdict of the jury is sustained by a plain preponderance thereof, and, if so, to disregard all errors of law, if any were committed, which do not in a material degree tend to produce the result reached: Bank v. Napier, 41 W. Va. 481; for, if the court finds, on an examination of the evidence, that the conclusion reached is sustained by a decided or plain preponderance thereof, and is in accordance with law, although errors may have been committed in the giving of instructions or otherwise, the judgment will not be reversed. A reversal in such case would be abortive and injurious to both parties, as prolonging useless litigation. A result having been reached plainly in accord with the evidence and the law cannot be overthrown by the rulings of the court, however erroneous, for such errors would not be to the prejudice of the party complaining: Plate v. Durst, 42 W. Va. 63.

The circumstances of the case are as follows, to-wit: Plaintiff went to the defendant's hotel, called the "Valley Hotel," to stop for a few days at the most. His home was in Virginia. He had an arrangement with defendant to board the mail carrier at reduced rates, and, when stopping there, was accorded these rates himself. On this occasion, he had received payment of a draft; was drinking, and slightly intoxicated; exhibited his money freely; was arrested, fined, and paid the same. Mrs. Bucky, during the day, asked him to let her take charge of his money. This he declined to do, saying he was able to take care of his own money. At night he was assigned to a room which had two out