Volume 227 — Mississippi Reports

<bold>1. Injunctions — contempt — violation of injunction against</bold> <bold>possession of intoxicating liquors — possession of "drinking</bold> <bold>whiskey" — addiction to drink as a defense.</bold> It was no defense to criminal contempt prosecution for violating injunction against possession of intoxicating liquors that liquor found in defendant's possession had been "drinking whiskey" kept for his personal use and that his addiction to drinking rendered defendant unable to comply with injunctive decree. Headnote as approved by Gillespie, J.

<bold>1. Landlord and tenant — lease contract — construed — damages to</bold> <bold>roof — landlord's duty to repair — landlord's liability to</bold> <bold>tenant.</bold> Under contract providing that if leased store should be partially damaged by fire or other cause repairs should be made by landlord, landlord became liable to tenant for direct, natural and proximate damages to tenant's property resulting from breach of contract. <bold>2. Landlord and tenant — lease contract — imposing duty on</bold> <bold>landlord to repair or replace roof — landlord's liability to</bold> <bold>tenant for damages resulting from leaking roof.</bold> In lessee's action to recover damage to merchandise in leased store under lease contract which provided that if leased store should be partially damaged by fire or other cause, repairs should be made by lessor, and that lessee agreed to make any repairs except structural repairs and repairs to roof of store building, wherein it appeared that after roof began to leak lessor repaired roof, but defectively, resulting in damages and thereafter lessor put new roof upon building, contract imposed duty on lessor to repair or replace the roof and lessor became liable to tenant for direct, natural and proximate damages resulting from leaking roof. <bold>3. Landlord and tenant — landlord's duty to repair or replace</bold> <bold>roof — notice of defective condition — damages.</bold> In such case, evidence established that lessor had personal notice of defective condition of roof, that due diligence to duty under contract would have prevented occurrence of the damage,<page_number>Page 228</page_number> and that lessor was liable for amount of damages from date of such notice. Headnotes as approved by Roberds, P.J.

<bold>1. Homicide — assault and battery with intent to kill and murder</bold> <bold>— evidence — supported conviction of simple assault.</bold> In prosecution of two brothers jointly indicted for assault and battery with intent to kill and murder person who did not claim to have been struck more than once, by small wrench, and whose injuries were not serious, evidence did not sustain charge of intent to kill and murder, and would not support conviction of more than simple assault and battery. Headnote as approved by Hall, J.

<bold>1. Highways — evidence insufficient to establish claim of public</bold> <bold>highway across adjoining lands — by virtue of deeds from</bold> <bold>common grantor.</bold> In suit by landowner claiming right to go across adjoining land of defendant to a public road by virtue of the existence of a<page_number>Page 300</page_number> public highway, where evidence showed that claimed public highway had been abandoned some 25 years before deeds were executed by the common grantor of the parties declaring that the deeds were subject to public roads as now laid out, maintained or used over the lands, complainant was not entitled to claim a public highway across the lands of defendant by virtue of the deeds from the common grantor. <bold>2. Easements — by implication and necessity — evidence —</bold> <bold>proffered way practical — reasonable.</bold> Where Chancellor found that landowner as dominant tenant was entitled to easement by implication and necessity over adjoining lands, and further found that servient tenant was under duty to select a reasonable and fair route across his land and tender it to the dominant tenant for acceptance or rejection and the servient tenant did select and tender a roadway and Chancellor found that the tendered way was fair and practical and reasonable to all the parties, decree of Chancellor would be sustained. Headnotes as approved by Roberds, P.J.

<bold>1. Mortgages — setting aside foreclosure — inadequacy of price —</bold> <bold>other inequities.</bold> While mere inadequacy of price brought at trust deed foreclosure sale in pais may not of itself be sufficient reason for setting aside sale, such fact when taken together with other inequities may be sufficient for such purpose. <bold>2. Equity — discretion to see that wrong and oppression are not</bold> <bold>inflicted — that justice is done.</bold> A court of equity in the exercise of a broad discretion is required to see that wrong and oppression are not inflicted under the guise of legal procedure, but that justice is done as the very right of each case may demand. <bold>3. Tender — bill to set aside foreclosure — necessity of —</bold> <bold>generally.</bold> Ordinarily, it is necessary, in bill to set aside trust deed foreclosure in pais either because of defects in proceedings or because of grossly inadequate price at sale accompanied by other inequities, that tender of indebtedness should be made to creditor. <bold>4. Tender — bill to set aside foreclosure — mortgagors relieved</bold> <bold>from making tender — under allegations of bill of complaint.</bold> Where mortgagees had recovered judgment on note secured by deed of trust prior to commencement of the proceedings by<page_number>Page 361</page_number> trustee to foreclose deed of trust in pais, mortgagors' inability to make tender of indebtedness would not result in judicial refusal, under allegations of bill, to set aside foreclosure and require a fair sale in order that proper credit might be given on mortgagors' indebtedness, where mortgagees allegedly had acquired property worth at least $3,000 at foreclosure sale for $100, thus leaving mortgagors indebted to mortgagees for the difference between $100 and the amount of the judgment obtained. <bold>5. Mortgages — bill to set aside foreclosure — inadequacy of</bold> <bold>price — other inequities — demurrer erroneously sustained.</bold> In suit to have set aside a foreclosure sale of certain real property sold under deed of trust, wherein demurrer was interposed to amended bill of complaint and sustained, Supreme Court held that if, as alleged in amended bill of complaint, named person who had promised mortgagors to buy in the property had been induced by mortgagees not to appear as bidder at sale by reason of mortgagees' promise to sell property to him for less than he had previously offered, and mortgagees had thus been able to buy property in themselves at a grossly inadequate price, sale would be set aside, consequently, cause was reversed and remanded for trial upon amended bill and answer, and on proof as to the merits of the complaint. Headnotes as approved by McGehee, C.J.

<bold>1. Municipalities — Civil Service Commission — statutory review</bold> <bold>procedure exclusive.</bold> Where policeman, who was fired for allegedly taking money from parking meter did not, within ten days, file with Board of Civil Service Commission written demand for statutory investigation and hearing, he could not obtain review of legality of removal by bill in chancery, since such statutory review procedure is exclusive. Secs. 3824-40, 3825-30 to 3825-40, Code 1942. <bold>2. Municipalities — same — bill seeking review of removal of</bold> <bold>policeman from city employment — demurrable.</bold> Though demurrer to policeman's bill seeking review of removal from city employment admitted that he had not been given written accusation of the reasons for his removal, bill was nonetheless demurrable; and such alleged fact would have been one for consideration of Civil Service Commission Board upon review of removal by exclusive statutory procedure. Secs. 3824-40, 3825-30 to 3825-45, 3825-40, Code 1942. Headnotes as approved by Ethridge, J.<page_number>Page 411</page_number>

<bold>1. Criminal law — assault and battery with intent — instructions</bold> <bold>— felonious intent.</bold> In prosecution for assault and battery with intent to kill and murder, refusal of instruction to the effect that the jury could not find defendant guilty unless it would have found him guilty of murder if he had killed the victim and was on trial for murder was not reversible error in view of instructions given stating and attempting to define what constitutes a felonious intent to kill and murder. <bold>2. Criminal law — evidence — letter voluntarily written by</bold> <bold>defendant — intercepted by prison officials under established</bold> <bold>practice to promote discipline — admissible — searches and</bold> <bold>seizures — self-incrimination — no violation of defendant's</bold> <bold>rights.</bold> Where defendant while in jail, wrote a letter to his brother and letter was handed by defendant to his mother who came to visit him and deputy sheriff asked the mother for the letter and she voluntarily handed it to him and it was transmitted to the prosecuting attorney without the defendant's consent, letter was not inadmissible on the ground that it was obtained by an unreasonable search and seizure and that there was a violation of defendant's privilege against self-incrimination.<page_number>Page 441</page_number> <bold>3. Criminal law — letter voluntarily written by defendant —</bold> <bold>intercepted by prison officials under established practice to</bold> <bold>promote discipline — admitted in evidence by State — defendant</bold> <bold>not victim of racial prejudice — by reason of statements in</bold> <bold>letter.</bold> Where letter referred to in Headnote No. 2 came into possession of officials under an established practice reasonably designed to promote discipline of the institution, and letter was introduced in evidence by State, defendant could not complain that he was a victim of racial prejudice, where matter was not injected into the case by the State but by defendant's own voluntary action in writing a letter admissible as relevant and of probative value on the issue of defendant's guilt. <bold>4. Homicide — assault and battery with intent — evidence —</bold> <bold>sustained conviction.</bold> Evidence sustained conviction of assault and battery with intent to kill and murder. Headnotes as approved by Ethridge, J.

<bold>1. Workmen's Compensation — workman not employee of vendee</bold> <bold>lumber company — but of vendor saw mill operator — contractor</bold> <bold>and sub-contractor — vendee and vendor.</bold> In proceeding under Act for benefits for death of workman, an alleged employee of lumber company, wherein it appeared that operator of saw mill hired workman, fixed and paid his wages, exercised exclusive direction and control over workman, and sold and delivered lumber to lumber company which did not control sales of saw mill nor carry saw mill's employees on its payroll, evidence established that employer-employee relation did not exist between workman and lumber company but that workman was employee of operator of saw mill, that relation between lumber company and saw mill operator was not that of contractor and subcontractor but that of vendee and vendor, and claims for compensation were properly denied.<page_number>Page 462</page_number> <bold>2. Workmen's Compensation — vendee and vendor — protection from</bold> <bold>possible liability under Act — deductions by vendee for</bold> <bold>workmen's compensation from purchase price paid vendors — as</bold> <bold>not changing relationship of parties.</bold> Fact that lumber company for its own protection from possible liability under the Act made deductions for workmen's compensation from purchase price paid vendors for lumber, without reference to payroll or from whom lumber was purchased, or who was covered, was not sufficient to change relation of lumber company and saw mill operator from vendor and vendee to that of employer and employee. <bold>3. Workmen's Compensation — employment — estoppel of insurance</bold> <bold>carrier to plead employee not covered by Act — statute applies</bold> <bold>when.</bold> Employment is the basis of the Workmen's Compensation Act and Sec. 6998-40 applies only in those instances where a relation of employment exists. Sec. 6998-40, Code 1942. <bold>4. Workmen's Compensation — where vendee protects itself from</bold> <bold>possible liability under Act — deductions for workmen's</bold> <bold>compensation from purchase price paid vendors for lumber — as</bold> <bold>an estoppel to deny coverage — as changing relation of</bold> <bold>parties.</bold> Although lumber company for its own protection made deduction of a fixed sum for each thousand feet of lumber purchased from saw mill for purpose of purchasing compensation insurance, where lumber company's insurance premium was not based on saw mill's payroll but on its own payroll alone, statute which provides that acceptance of a premium securing to an employee compensation estops the carrier from pleading that employment of such employee is not covered under Act, was not applicable and lumber company and its insurance carrier were not estopped from asserting that saw mill operator's employees were not lumber company's employees. Sec. 6998-40, Code 1942. Headnotes as approved by Ethridge, J.

<bold>1. Divorce — decree — child custody — custody jurisdiction —</bold> <bold>petition to modify — court without jurisdiction to entertain.</bold> Where two youngest children were in Texas with mother at time husband filed divorce bill and at time Mississippi Court granted husband divorce and custody of oldest child, though court attempted specifically to retain custody jurisdiction of such other two children, Mississippi Court did not have jurisdiction to modify divorce decree to award husband custody of such two youngest children. Sec. 2743, Code 1942. <bold>2. Jurisdiction — custodial decree — void — court is without</bold> <bold>jurisdiction of person.</bold> A custodial decree made by a court not having jurisdiction of the person of the minor whose custody is sought thereby to be determined is void. Sec. 2743, Code 1942. <bold>3. Child custody — custodial decree — void.</bold> Where court, which did not have jurisdiction of two youngest children, because of their residence out of state with mother, at time of divorce bill and decree, attempted to retain jurisdiction over such children after entry of decree, such attempt was ineffective and a nullity. Sec. 2743, Code 1942. <bold>4. Child custody — custodial decree — void — court jurisdiction</bold> <bold>to entertain petition to modify.</bold> Where provision in divorce decree attempting to retain custody jurisdiction of children residing out of state with mother was a nullity, divorce proceeding ended without any judicial determination of question of custody of children, and court could not subsequently modify decree to award custody of children to father. Sec. 2743, Code 1942. <bold>5. Divorce — statutes — petition to modify decree — void</bold> <bold>decree.</bold> Though under applicable statute Chancery Court may modify decree under certain circumstances, a subject concerning which no decree was made in divorce proceeding may not be subject of later decree in divorce cause on theory of modification of divorce decree. Sec. 2743, Code 1942.<page_number>Page 553</page_number> <bold>6. Practice and procedure — right to custody of children —</bold> <bold>proper remedy.</bold> In all cases except where a divorce is granted, or separate maintenance is decreed, the right to the custody of children must be determined by habeas corpus; and no other remedy exists. <bold>7. Practice and procedure — right to custody of children —</bold> <bold>independent proceeding — unknown to Mississippi practice.</bold> Independent proceeding to declare and confirm status of children is unknown to Mississippi practice. Headnotes as approved by Gillespie, J.

<bold>1. Motor vehicles — collision — evidence — would not sustain</bold> <bold>verdict for defendant.</bold> In suit for injuries sustained by plaintiff when defendant's vehicle ran into rear of automobile in which plaintiff was riding while latter vehicle was stopped, preparatory to entering intersection, evidence would not sustain verdict for defendant. <bold>2. Evidence — admission against interest — erroneously</bold> <bold>excluded.</bold> In such case, it was error to exclude officer's response as to whether defendant had made any statement to officer, on day of accident as to fault. <bold>3. Instructions — misleading — keeping proper lookout —</bold> <bold>automobile under proper control.</bold> Instruction, which seemed to present to jury theory that defendant had right to look to side to observe traffic on intersected road and stop looking toward automobile ahead of him, was misleading, since driver can look to his left or right and ahead of him almost instantaneously and has sufficient time to avoid colliding with vehicle in front of him if he has his own automobile under proper control. <bold>4. Trial — medical witness available to both parties —</bold> <bold>instruction — failure to introduce such witness — improper.</bold> Where medical witness was available to both of parties, no instruction should have been given as to failure of either party to introduce such witness. Headnotes as approved by McGehee, C.J.

<bold>1. Homicide — evidence — conviction for assault with intent to</bold> <bold>kill sustained.</bold> Evidence supported conviction of assault and battery with intent to kill. <bold>2. Criminal law — Trial Judge's inquiry — during examination of</bold> <bold>defendant by district attorney — not error.</bold> Trial Judge's inquiry, during examination of defendant by district attorney, as to whether district attorney had reference to some statement made on the instant trial or on the first trial was not error, especially where trial judge informed defendant that if he had made such a statement he could explain to jury why he had made it. <bold>3. Criminal law — assault and battery with intent to kill —</bold> <bold>instructions.</bold> Refusal of defendant's requested instruction that jury could not find defendant guilty of assault and battery with intent to kill unless jury would have found defendant guilty of murder if he had killed complaining witness was not reversible error, especially in view of fact that other instructions, both for State and for defendant, had correctly informed jury as to degree of proof required. Headnotes as approved by McGehee, C.J.

<bold>1. Indictments — desertion and willful failure of father to</bold> <bold>support minor children — sufficient.</bold> Indictment charging that defendant "did willfully, unlawfully and feloniously, desert and willfully neglect and refuse to support his minor children of names and ages as follows" was sufficient to charge that he was father of children, though, under more exact pleading, it should have charged that defendant, "being father of children" naming them and giving their ages, "did willfully desert them," etc., following language of statute. Sec. 2087, Code 1942. <bold>2. Criminal law — same — continuing offense — evidence — as to</bold> <bold>continued neglect proper.</bold> Offense of desertion and willful failure on part of father to support minor children is a continuing offense and, in prosecution therefor, it was proper to introduce evidence as to continued neglect of children after original desertion. Sec. 2087, Code 1942. <bold>3. Parent and child — desertion and willful neglect to provide</bold> <bold>for minor children — evidence — sustained conviction.</bold> Evidence sustained conviction of father for desertion and willful neglect to provide for minor children. Sec. 2087, Code 1942. Headnotes as approved by Lee, J.

<bold>1. Municipalities — ordinance extending corporate limits —</bold> <bold>proceeding to approve — burden of proof.</bold> In proceeding under Section 3374-13, Code 1942, to approve ordinance extending City's corporate limits, burden was on City to prove that proposed enlargement of city limits was reasonable. Sec. 3374-13, Code 1942. <bold>2. Municipalities — ordinance extending corporate limits —</bold> <bold>proceeding to approve — proposed extension unreasonable in</bold> <bold>part.</bold> In proceeding to approve ordinance extending City's corporate limits, evidence was overwhelming and conclusive that proposed extension to include 94 acre tract which was badly eroded and not susceptible of being converted into any kind of residential area or other municipal purpose except at a prohibitive cost, was unreasonable. <bold>3. Appeal — judgment — declaring ordinance extending corporate</bold> <bold>limits reasonable — time for appeal.</bold> Under statute allowing ten days for an appeal from judgment that ordinance relating to boundaries of municipalities is reasonable, where decree was dated November 12, 1955, but was not entered on the docket and minutes until November 16, 1955, appeal bond filed November 25, 1955, was filed in ample time. Sec. 3374-08, Code 1942. Headnotes as revised by Hall, J.