Volume 225 — Mississippi Reports

<bold>1. Appeal — trial — what was said — between Trial Judge and</bold> <bold>attorney — Judge's version accepted when.</bold> When that which is said between a Trial Judge and an attorney in a case is not taken down by a court reporter at time it is being said, Supreme Court will adopt version of Trial Judge as to what transpired. <bold>2. Injunctions — preliminary injunction — refusal of Trial Court</bold> <bold>to hear testimony — error cured — hearing on motion to</bold> <bold>dissolve.</bold> Alleged error of Trial Court in refusing to hear testimony after announcing his conclusion that a preliminary injunction should be granted was cured when the Court heard testimony on issue involved for a period of six days on motions to dissolve the injunctions. <bold>3. Injunctions — temporary injunction — to prevent interference</bold> <bold>with removal of building — properly retained until final</bold> <bold>hearing.</bold> Where complainants, who were owners of tract of land, sold part of tract to highway authorities for relocation of highway and remaining triangular portion of tract to defendants who knew at time of purchase and conveyance that building, partly located on both tracts, was to be removed from entire tract to another lot, and most practical and least expensive route for removal was over triangular tract of defendants, and preliminary injunctions were issued to prevent defendants from interfering with removal of the building across triangular tract, temporary injunctions against interfering with removal, under the evidence, was properly retained until a final hearing. <bold>4. Injunctions — issuance against attorney-defendant — proper.</bold> Where Chancellor would not have granted an injunction against attorney-defendant except for his statement that if it were granted against codefendants, it should be issued against him<page_number>Page 9</page_number> in addition, attorney-defendant could not complain that injunction was issued against him. <bold>5. Injunctions — refusal to dissolve — as against</bold> <bold>attorney-defendant — proper.</bold> Where only ground on which Chancellor would have been justified in dissolving temporary injunction was for him to have been of opinion, on motion to dissolve, that it had been wrongfully issued in the first instance, and if dissolved as to attorney-defendant, such defendant would have been entitled to recover damages and attorney's fees against complainants on ground of its wrongful issuance, evidence would not justify finding that injunction had been wrongfully issued. Headnotes as approved by McGehee, C.J.

<bold>1. Workmen's compensation — evidence — tung nut harvester —</bold> <bold>accidental injury in course of employment.</bold> In proceeding by tung nut harvester to obtain workmen's compensation for back injury allegedly sustained when lifting sack of tung nuts, evidence was sufficient to establish harvester had sustained an accidental injury arising out of and in course of her employment and that she was totally temporarily disabled as result of such injury. <bold>2. Workmen's compensation — evidence — employer's knowledge of</bold> <bold>injury.</bold> In such case, evidence was sufficient to sustain finding that employer had actual knowledge of harvester's injury even though harvester failed to give required notice of her injury to her employer within thirty days. Sec. 6998-18, Code 1942. <bold>3. Workmen's compensation — statutes — weekly wage — award.</bold> Under facts of case, based on provisions of applicable statutes, claimant should have been awarded compensation in an amount of $10 per week, the minimum award, rather than award based upon an assumed average weekly wage of $25. Secs. 6998-07, 6998-09, 6998-16, Code 1942. <bold>4. Workmen's compensation — employer's duty — to furnish medical</bold> <bold>services.</bold> Under mandatory provision of Act requiring employer to furnish medical services to injured employee, employer was not<page_number>Page 31</page_number> relieved of his duty by offer of employer's foreman, immediately after employee's injury, to carry employee to doctor and by employee's failure to accept such offer. Sec. 6998-08, Code 1942. <bold>5. Workmen's compensation — medical services.</bold> Where employer's foreman had knowledge of employee's injury and its disabling effects, employer had duty to instruct employee on what to do to obtain medical attention. Sec. 6998-08, Code 1942. <bold>6. Workmen's compensation — employer liable for necessary</bold> <bold>medical services.</bold> Where employer, who had knowledge of employee's injury, neglected to provide services, employer and his compensation carrier would be liable for payment of necessary doctors' bills incurred by employee for treatment of her injury. Sec. 6998-08, Code 1942. Headnotes as revised by Kyle, J.

<bold>1. Libel and slander — accusations — theft of bus fares —</bold> <bold>qualified privilege.</bold> Where superintendent of Bus company, in presence of assistant, falsely accused employee bus operator of taking fares, but conversation occurred in private, closed room, as preliminary to discharge of employee, words were spoken on<page_number>Page 85</page_number> occasion of qualified privilege, and were not actionable slander. <bold>2. Libel and slander — qualified privilege — accusations — in</bold> <bold>scope of privilege — made in good faith — without malice.</bold> When an employer discusses with employee charges made against employee affecting his employment, a qualified privilege exists, and statements made within scope of privilege, in good faith, without malice, are not actionable slander. <bold>3. Libel and slander — qualified privilege — accusations — truth</bold> <bold>or falsity irrelevant — absence of malice or bad faith.</bold> Where qualified privilege from actionable slander exists, truth or falsity of communication is irrelevant as long as bad faith or malice is not present. <bold>4. Libel and slander — qualified privilege — good faith — bad</bold> <bold>faith — presumptions — burden of proof.</bold> Presumption of good faith goes with qualified privilege from slander, and burden of showing bad faith or malice is on plaintiff. <bold>5. Libel and slander — qualified privilege — destroyed when.</bold> Qualified privilege from actionable slander is not destroyed without proof that words were motivated by spite, ill will, malicious purpose, or with wanton and reckless disregard of truth. <bold>6. Libel and slander — qualified privilege — where plaintiff</bold> <bold>invites accusations.</bold> Where bus operator, who had been falsely accused of taking fares during course of privileged conversation with superintendent of Bus company, invited accusation by asking if superintendent was saying that he took the money, he could not claim he was thereby slandered. Headnotes as approved by Gillespie, J.

<bold>1. Criminal law — instructions — refusal to grant same</bold> <bold>instruction twice — not error.</bold> It was not error to refuse to grant same instruction twice. <bold>2. Criminal law — forgery — evidence — instructions — refused —</bold> <bold>"to the exclusion of every other reasonable hypothesis."</bold> Where evidence in forgery prosecution was not entirely circumstantial, it was not error for Court to refuse instructions requiring jury to find defendant not guilty unless they believe beyond every reasonable doubt and to the "exclusion of every other reasonable hypothesis" that defendant was guilty. <bold>3. Criminal law — circumstantial evidence — "exclusion of every</bold> <bold>other reasonable hypothesis."</bold> As a general rule, it is only in cases where evidence is entirely circumstantial that jury should be required to exclude every other reasonable hypothesis than guilt before conviction can be had. <bold>4. Criminal law — forgery — indictments — instruction —</bold> <bold>"felonious and fraudulent intent."</bold> In prosecution under indictment charging that forgery had been committed "with the felonious and fraudulent intent" to cheat<page_number>Page 131</page_number> and defraud, jury should have been instructed that proof of such "felonious and fraudulent intent" was necessary to establish defendant's guilty, but inadvertent omission of word "intent" from such phrase in instruction in which Court undertook to set forth essential elements of crime charged in indictment would not require reversal where jury was told that they must believe defendant had forged check "feloniously, falsely, fraudulently and knowingly" and that he had done so to "cheat and defraud." <bold>5. Criminal law — Trial Judge's mistaken reference to witness as</bold> <bold>the defendant — not prejudicial.</bold> Mistaken reference to witness as the "defendant" by Trial Judge in jury's presence would not require reversal of conviction as jury was neither misled nor prejudiced by such mistaken reference. <bold>6. Forgery — guilt or innocence — jury question — evidence —</bold> <bold>sustained conviction.</bold> In forgery prosecution, under facts of case, defendant's guilt or innocence was a question for jury, and defendant's conviction was sustained by the evidence. Headnotes as approved by Kyle, J.

<bold>1. Motor vehicles — collision — negligence — fact issue for jury</bold> <bold>— conflicting evidence.</bold> In suit by motorist for personal injuries and damages to automobile in collision with oncoming automobile driven by defendant as plaintiff attempted to make a left turn at street intersection, conflicting evidence as to speed and proximity of defendant's automobile at time plaintiff started to make left turn and whether plaintiff gave signal of intention to turn was sufficient to take case to jury, and where contentions of both parties were supported by substantial evidence, verdict for plaintiff was not against the overwhelming weight of the evidence. Sec. 8196, Code 1942. <bold>2. Trial — statements made by Trial Judge — in sustaining</bold> <bold>objections — not oral instructions to jury.</bold> Statements made by Trial Court in sustaining objections to certain questions asked witness did not constitute oral instructions to jury in violation of statute. Sec. 1530, Code 1942. <bold>3. Trial — improper statements made by counsel — during</bold> <bold>cross-examination — not reversible error.</bold> Statements made by counsel for plaintiff during cross-examination by defendant of witness for plaintiff, though improper, did not constitute ground for declaration of a mistrial, where Court immediately instructed jury, and exacted from jurors promise, to disregard such statements. <bold>4. Damages — award — not excessive.</bold> Under evidence, award for $1,250 was not excessive. Headnotes as approved by Hall, J.

<bold>1. Conditional sales contract — subsequent parol modification —</bold> <bold>waiver of lien.</bold> In replevin suit by assignee of conditional sale contract covering both truck and dump body, brought against conditional vendee to recover possession of the dump body after vendee, together with assignee and transferee of truck minus the dump body, had executed transfer of interest agreement describing truck but making no reference to the dump body, parol evidence tending to establish that assignee had waived its lien in part and released the dump body from conditional sale contract did not vary any contemporaneously executed instrument, but simply modified original conditional sale contract, and was admissible, and whether assignee had so agreed was question for jury. <bold>2. Contracts — subsequent parol modification — wavier.</bold> Rule that written contract cannot be changed or modified by parol evidence of what was agreed by parties at time of making contract does not preclude subsequent parol modification of written contract, provided it is not one which must be in writing under statute of frauds, nor does it preclude oral agreement to waiver or modify particular provision in written contract. <bold>3. Sales — contracts — subsequent parol modification — burden of</bold> <bold>proof — jury question.</bold> Contract of sale may be modified by agreement of parties as to any of its provisions, terms, or conditions, such as subject matter thereof, and this modification may be by oral agreement, but person asserting such agreement has burden of proof, and on conflicting evidence, whether contract of sale has been changed, modified, or replaced by new agreement is ordinarily question of fact for jury. Headnotes as approved by Ethridge, J.

<bold>1. Appeal — divorce denied — evidence — insufficient to entitle</bold> <bold>either spouse to divorce — support and maintenance denied —</bold> <bold>costs.</bold> In divorce action by husband on ground of habitual cruel and inhuman treatment wherein wife filed cross-bill charging similar ground and Trial Court denied divorce to husband but granted divorce to wife and awarded her permanent alimony, under state of record, Supreme Court held that evidence was insufficient to entitle either spouse to a decree for divorce on ground charged, that wife was not entitled to be supported by the payment of permanent alimony while living separate and apart from husband, but was entitled to attorney's fees in Trial Court and on appeal, and that reversal of cause by husband carried with it the costs to be assessed against wife. Headnote as approved by McGehee, C.J.