Volume 217 — Mississippi Reports

<bold>1. Witnesses — attorney and client — privileged communications.</bold> Where two or more persons consult an attorney for their mutual benefit and make statements in his presence, he may disclose those statements in any controversy between them or their personal representative or successors in interest. <bold>2. Fraud and deceit — mental capacity — promises not intended to</bold> <bold>be kept — instructions.</bold> There is a difference between fraudulently inducing a person to enter into a contract by promises not intended to be kept and one overreaching the other contracting party due to her want of mental capacity; so that where a suit is to set aside a joint tenancy bank deposit on the ground that the deceased joint depositor was without mental capacity, it was error to instruct the jury that the fact that the surviving joint tenant did not keep the agreement under which the deposit was made would authorize a verdict against her. Headnotes as approved by McGehee, C.J.

<bold>1. Master and servant — turning aside for some purpose other</bold> <bold>than master's business.</bold> Where a servant steps aside from his master's business for some purpose of his own, disconnected from his employment, the master and servant relationship is temporarily suspended and the master is not liable for his acts during such time. <bold>2. Master and servant — temporary suspension of relationship,</bold> <bold>case in point.</bold> Where a traveling salesman had some orders to mail to his employer, which he intended to do during the evening in question, but before he had proceeded to mail the orders he picked up a woman companion at a restaurant and went with her in the employer's automobile on a round of houses of entertainment with the expectation of mailing the orders after he had returned his companion to her home, his employer was not liable for a negligent injury to the passenger as a result of a collision while en route, not to the post office, but to the passenger's home. Headnotes as approved by Kyle, J.

<bold>1. Appeal — none by the State on issue of fact.</bold> An appeal by the State is not authorized when the only question presented is the sufficiency of the State's evidence. Sec. 1153, Code 1942. Headnote as approved by Holmes, J.

<bold>1. Pleading — affirmative defense, reply to.</bold> When the defendant has set up an affirmative defense in his answer, the plaintiff must then advise the defendant by a written reply of any special matter which he intends to give in evidence in reply to the special matter pleaded by the defendant, and evidence in reply, without compliance with the stated rule and admitted over the objections of the defendant, constitutes reversible error. Sec. 4, Chap. 230, Laws 1948.<page_number>Page 774</page_number> <bold>2. Insurance — pleading — affirmative defense, reply to.</bold> In an action to recover on a policy of insurance on a motor truck, the insurer answered with the affirmative defense that the vehicle was burned while returning from a trip regularly taken contrary to the provisions of the policy that such trips would not be made for a greater distance than a 50-mile radius, and without any written reply thereto, the plaintiff over the objection of the defendant introduced testimony that the agent who took the application for the policy was informed at the time that the vehicle was regularly to be used beyond that radius: Held that the admission of the testimony, outside the pleadings, about the agent's knowledge was reversible error. Sec. 5706, Code 1942; Sec. 4, Chap. 230, Laws 1948. Headnotes as approved by McGehee, C.J.

<bold>1. Arbitration and award — interlocutory appeal.</bold> A controversy growing out of contractual relations between the parties had been submitted to arbitration and the award was brought to court for confirmation, but the court declined either to confirm or to vacate or to modify or correct the award but simply referred the matter back to the arbitrators for further findings and without decision as to any principle of law involved: Held that the interlocutory decree so ordering was not appealable. Secs. 291-293, 1148, Code 1942. Headnote as approved by Holmes, J.