Volume 224 — Mississippi Reports

<bold>1. Criminal law — directed verdict — peremptory instruction.</bold> Where defendant, after overruling of his motion for directed verdict at close of State's case, introduced evidence and thereafter moved for peremptory instruction, question whether he was entitled to peremptory instruction was to be determined on state of testimony at conclusion of all the evidence. <bold>2. Criminal law — mistrial — comments of District Attorney —</bold> <bold>insufficient to require.</bold> Under state of record, comments of District Attorney held insufficient to require a mistrial. <bold>3. Homicide — assault and battery with intent — mental capacity</bold> <bold>— evidence — conviction sustained.</bold> In prosecution for assault and battery with intent to kill and murder, evidence of defendant's mental condition at time of alleged crime was sufficient to sustain conviction. Headnotes as approved by McGehee, C.J.

<bold>1. Motor vehicles — negligence — master and servant — failure to</bold> <bold>furnish safe automobile — defective brakes — proximate cause —</bold> <bold>jury issue.</bold> In suit against owner of pickup truck by driver to recover for injuries sustained when truck went off embankment on left side of road when driver applied brakes to avoid striking automobile ahead, on ground that brake on left front wheel was defective and that owner knew that it was defective but did not inform driver of defect, evidence was sufficient to make issue for jury as to proximate cause of accident. <bold>2. Motor vehicles — evidence — proof required to make out case.</bold> In such case, driver was not required by his proof to exclude every other reasonable hypothesis than that accident was caused by defective brake on left front wheel, but was only required to convince jury by preponderance of evidence that accident was proximately caused by defective condition of brake on left front wheel. <bold>3. Motor vehicles — defective brakes — proximate cause —</bold> <bold>evidence.</bold> In such case, evidence warranted finding of jury that defective condition of brake of left front wheel caused truck to swerve to left and go off embankment. <bold>4. Appeal — motor vehicles — defective brakes — instructions.</bold> Instruction that if jury believed that brake on left front wheel was defective to extent that it would lock on some occasions when brakes were applied, and that if certain other conditions existed, jury should return verdict for driver, was not reversible error. Headnotes as approved by McGehee, C.J.

<bold>1. Wills — contest — mental capacity — evidence — supported jury</bold> <bold>verdict in favor of will.</bold> In will contest, evidence supported jury verdict in favor of will on issue of mental capacity. <bold>2. Wills — contest — undue influence — peremptory instruction —</bold> <bold>for proponent.</bold> Where there was no evidence of undue influence, Court properly instructed jury to find for proponent on that issue. <bold>3. Evidence — testamentary capacity — non-expert witnesses.</bold> In will contest, it was not error to permit non-expert witnesses, who knew testator and had come in contact with him from time to time during last years of his life, and who had been in position to observe his mental capacity during that time, to testify for proponent concerning testamentary capacity of testator at time of execution of will. <bold>4. Evidence — wills — mental capacity — non-expert witnesses.</bold> Non-expert witnesses who are in position to know and observe facts and circumstances may state their opinion, based on facts, that testator was of sound mind. <bold>5. Witnesses — waiver of dead man's statute — calling proponent</bold> <bold>as adverse witness.</bold> In proceeding on petition contesting validity of will and seeking cancellation of deed executed by testator, wherein contestants called proponent to testify as adverse witness, contestants thereby waived their right to object to proponent's testimony in her own behalf. <bold>6. Wills — subscribing witnesses — evidence — sufficient to show</bold> <bold>due execution — publication of will.</bold> Testimony of both subscribing witnesses to will that testator asked them to witness will and that he signed will in their presence and that they signed will in his presence and at his request and in the presence of each other was sufficient to show due execution and sufficient publication of will.<page_number>Page 345</page_number> <bold>7. Wills — master — granting of peremptory instruction by — not</bold> <bold>error.</bold> Where Chancellor appointed master to hear and try cause and issue devisavit vel non before jury and to report findings and verdict to Chancellor for final decree, and where there was no substantial evidence to support finding that will had been executed as a result of undue influence, master did not err in granting peremptory instruction for proponent on that issue. <bold>8. Trial — wills — instructions — burden of proof.</bold> Proponent's instruction that burden of proof rested on proponent was not subject to criticism that it failed to state clearly that burden of proof rested on proponent to prove her case by preponderance of evidence, in view of other instructions elaborating on burden of proof as to testamentary capacity. <bold>9. Witnesses — wills — legatee disqualified from testifying.</bold> Refusal to permit one of contestants, who was one of testator's children and who had been given one dollar legacy, to testify as witness for contestants was not error, since under applicable statute an heir, devisee or legatee is disqualified from testifying as witness in will contest. Sec. 1690, Code 1942. Headnotes as approved by Kyle, J.

<bold>1. Landlord and tenant — lease provisions requiring lessor to</bold> <bold>insure — construction of.</bold> Provision in lease of building for use as garage requiring lessor to maintain insurance upon building against loss by fire or storm and to use so much of proceeds as would be necessary for reconstruction and repair of building under terms of lease in event of fire or storm would be construed as protecting both parties, and lessee could rely thereon even if fire was caused by negligence of its employee. <bold>2. Insurance — lessor — lessee — insurable interest.</bold> Generally, both lessor and lessee have insurable interest in leased premises. <bold>3. Insurance — lessor and lessee — no interest in — in absence</bold> <bold>of contract.</bold> In absence of any contract between lessor and lessee as to insurance by one for benefit of the other, neither has any interest in the insurance taken out by the other in his own interest, although insurance is for an amount sufficient to cover the two estates in the property. <bold>4. Insurance — lessor — lessee — interest in — where lease</bold> <bold>agreement stipulates.</bold> Where lease agreement stipulates that one of the parties shall keep property insured for benefit of the other, each is entitled to a proportionate interest in proceeds of such insurance. <bold>5. Insurance — lessor's coverage on leased premises — rights of</bold> <bold>lessee.</bold> Fact that lessor had insurance coverage on leased building at time of fire in an amount in excess of minimum amount required by lease did not deprive lessee of right to claim benefit of the insurance. <bold>6. Landlord and tenant — insurance — lessor's contractual</bold> <bold>obligation.</bold> Lessor's obligation to effect and maintain insurance was a contractual obligation and constituted part of consideration for lessee's obligation to pay rent stipulated for in the lease. <bold>7. Landlord and tenant — evidence — lessee not liable for fire</bold> <bold>damage to leased premises — causal connection lacking.</bold><page_number>Page 446</page_number> Evidence failed to show causal connection between work that was being done by lessee's employee in using acetylene torch and fire in leased garage building, so as to render lessee liable for damages to leased premises. <bold>8. Landlord and tenant — fire damage to leased premises —</bold> <bold>tenant's negligence — burden of proof — proximate cause.</bold> Burden of proof was on landlord to show negligence on tenant's part and show that tenant's negligence was proximate cause of fire. Headnotes as approved by Kyle, J.

<bold>1. Perjury — false swearing — to constitute.</bold> To amount to perjury in law, false swearing must have been done with reference to some matter material to determination of the issue involved. <bold>2. Perjury — false swearing — as basis of perjury charge.</bold> In prosecution for perjury where perjury charge was predicated upon alleged falsity of certain testimony of accused as a witness in replevin action wherein sole issue was whether defendant therein was a bona fide purchaser for value, testimony of defendant's seller, the accused, that accused had not in previously buying the property, signed an agreement whereby he had assumed indebtedness against the property, and had known nothing about such an agreement, was immaterial to issue and whether true or false, could not have influenced Court to render payment for defendant where undisputed proof showed defendant to be an innocent purchaser of the property for value, and a charge of perjury could not be predicated thereon. Headnotes as approved by Holmes, J.<page_number>Page 755</page_number>

<bold>1. Adverse possession — evidence — boundary line dispute — old</bold> <bold>fences.</bold> In boundary line dispute wherein Chancellor viewed the premises, evidence sustained finding that regardless of where true boundary line was located, appellee owned and had acquired title by adverse possession to all land down to fence between the two tracts which had allegedly been maintained for about 25 years until just prior to filing of suit. <bold>2. Appeal — Chancellor's findings — disputed questions of fact.</bold> Chancellor's findings on sharply disputed questions of fact cannot be disturbed on appeal. Headnotes as approved by Hall, J.