Volume 209 — Mississippi Reports

<bold>1. Pleading — concurrent acts constituting single cause of</bold> <bold>action — one count.</bold> When two acts of negligence concurrently contributed to the plaintiff's single claim of damage and the damage would not have resulted without the concurrence of both acts, both combining to make up one complete result, a declaration which embraced both acts in one count was proper and the objection that two causes of action were stated in one count was not well taken. <bold>2. Damages — evidence — market value of residence before and</bold> <bold>after damage.</bold> In an action for damages to plaintiff's residence because of negligence in city's drainage system, testimony of a real estate appraiser, familiar with land values of the vicinity, that the fair market value of the property immediately before the damage was $5500 to $6,000; that the market values of such property had remained stable, and that the property in its damaged condition was worth about $2000 was relevant and admissible. <bold>3. Municipalities — damages from negligence in city's drainage</bold> <bold>system — case for jury.</bold> When the city's culverts had become obstructed so as to prevent the flow of water through them and the flow was thereby greatly increased in a culvert on plaintiff's property connecting with the city culverts, in which culvert on plaintiff's property the city had broken a large hole through which large quantities of water were thrown upon plaintiff's residence lot and against and under the residence itself, undermining it and otherwise damaging the property, the question whether the city's alleged<page_number>Page 62</page_number> negligence proximately caused or contributed to plaintiff's damage was one for the jury. Headnotes as approved by Hall, J.

<bold>1. Municipalities — powers.</bold> A municipality may perform all acts for which authority is given it under its charter except those in conflict with the Constitution. <bold>2. Constitutional law — contributions or donations to political</bold> <bold>subdivisions.</bold> The legislative Act which authorizes a municipality to contribute property to supervisors' districts of the county for hospital purposes is not in conflict with the Constitution which prohibits gifts by municipalities to a private corporation, — supervisors' districts are political subdivisions and not private corporations. Sec. 183, Const. 1890. Chap. 435, Laws 1948. <bold>3. Municipalities — contribution by deed to supervisors'</bold> <bold>districts for hospital purposes.</bold> A municipality in this state acts within legislative authority in deeding property, owned by it, to three supervisors' districts<page_number>Page 117</page_number> of the county in which the municipality is situated, the purpose of the donation being to furnish a site for a community hospital. Headnotes as approved by Lee, J.

<bold>1. Criminal procedure — evidence of different offense not</bold> <bold>admissible.</bold> In a prosecution for the unlawful possession of intoxicating liquor, the accused was asked by the prosecuting attorney whether he had been drinking on the day of the search for the liquor and upon his denial, the prosecution was permitted to elicit testimony from two witnesses in rebuttal that accused was under the influence of intoxicating liquor at the time of the search: Held that this was reversible error in that accused was not on trial for public drunkenness, but had already been tried and acquitted on that charge. <bold>2. Criminal procedure — evidence of a different offense not</bold> <bold>admissible.</bold> The general rule is that, in criminal cases especially, the facts laid before the jury should consist exclusively of the transaction which is the subject of the indictment and that proof of a crime distinct from that alleged in the indictment should not be admitted in evidence against the accused, and although there are some exceptions such exceptions do not come within the case stated in the foregoing headnote. <bold>3. Witnesses — contradiction on immaterial or collateral matter</bold> <bold>not competent.</bold> In a prosecution for the possession of intoxicating liquor the fact that the accused was drinking on that day or occasion was an immaterial or collateral matter, and under the rule that it is not competent to contradict a witness on an immaterial or collateral matter it was error to permit the prosecution to prove in rebuttal of defendant's denial thereof that he was in fact in an intoxicated condition, especially when he had been tried and acquitted on that charge. Headnotes as revised by Hall, J.<page_number>Page 139</page_number>

<bold>1. Homicide — concerted action — responsibility of each of</bold> <bold>persons so acting.</bold> When two persons acting in concert began an altercation with their victim and each fired two or more shots at him as he was attempting to escape, one of which struck him in the back with fatal result, each was guilty of murder and it was not necessary that the proof disclose which of the two actually fired the particular fatal shot. Headnote as approved by McGehee, C.J.

<bold>1. Criminal procedure — homicide — evidence — dying declaration</bold> <bold>— circumstantial evidence.</bold> The sense of impending death which a dying person must have in order to render a dying declaration made by him admissible in evidence may be inferred from the circumstances, although nothing was said respecting death; and the inference may be drawn from the nature of the wound and the state of illness therefrom, provided the nature of the wound or illness is such as should affect the knowledge and control the opinion of the dying person himself as to the danger to which he stood exposed. <bold>2. Criminal procedure — homicide — evidence — dying declaration</bold> <bold>— physician's opinion.</bold> Evidence of a physician's opinion as to a declarant's condition at the time of making declaration is admissible not only to show the latter's state of mind, where such opinion was communicated to him, but also to show that the declarant was actually in a condition from the very nature of which he would have a sense of impending death. <bold>3. Criminal procedure — homicide — evidence — dying declaration</bold> <bold>favorable to defense.</bold> When the entire testimony, taken together with all the attendant circumstances, shows that the deceased was under a sense of immediate and impending death at the time of his declaration<page_number>Page 566</page_number> by which he stated that he was shot by another than the defendant, it was error to exclude the dying declaration offered as such by the defendant. Headnotes as approved by McGehee, C.J.

<bold>1. Insurance — accident policy — express stipulations as to</bold> <bold>coverage.</bold> Express provisions in an automobile insurance policy excluding liability as to certain accidents can not be extended to damages<page_number>Page 707</page_number> suffered by collision or upset, when another provision expressly included collision and upset as within the coverage of the policy. <bold>2. Appeal — transfer of cases.</bold> The action of the circuit court in refusing to transfer case to the chancery court is not reviewable on appeal. Sec. 147 Const. 1890. <bold>3. Appeal — motion to exclude — waiver.</bold> When, at the conclusion of the plaintiff's evidence the motion of the defendant to exclude has been overruled, the defendant then proceeds to introduce evidence in defense, the error, if any, in overruling the motion to exclude is waived. <bold>4. Insurance — conditional sales contract — change of</bold> <bold>ownership.</bold> When an accident insurance policy on an automobile has insured the conditional vendor or mortgagee to the extent of his interest, and provides that this interest shall not be affected by any change in the title or ownership of the vehicle, the coverage is not displaced by the fact that the mortgagee had repossessed the car and by agreement with the original vendee had placed it in his used car lot for resale for the joint benefit of the mortgagee and the said original conditional contract vendee. <bold>5. Insurance — automobile accident policy — commercial</bold> <bold>purposes.</bold> When there is no proof that either the original vendee or the conditional contract vendor were using the insured automobile for commercial purposes as defined in the policy, and the conditional vendor, who held it on his used car lot for resale for the joint interest of the parties, loaned it temporarily to a customer while the customer's car was being repaired, that fact alone did not make its said temporary use a use for commercial purposes within provisions of the policy excluding liability when so used. <bold>6. Insurance — automobile accident policy — notice of loss.</bold> When an automobile accident policy requires that the insured shall give notice to insurer or any of its authorized agents of any loss thereunder as soon as practicable, there being no stipulation that the notice shall be in writing, a prompt oral notice to local agent who wrote the policy is sufficient. <bold>7. Insurance — automobile accident policy — attorney's fees.</bold> Under an automobile accident policy issued to a conditional sales vendor insuring him against loss by collision or upset as his interest may appear up to the amount of the damage to the<page_number>Page 708</page_number> car, his interest included not only the original debt decured by the conditional sales but also the attorney's fees therein made a part of the debt, and the insured was entitled to recover both under the policy so long as the total did not exceed the amount of the actual damage to the vehicle, less the specified deductibles. Headnotes as approved by Hall, J.