Volume 233 — Mississippi Reports

<bold>1. Officers — city engineer not a "public officer" of City of</bold> <bold>Meridian.</bold> The city engineer of City of Meridian is not a public officer of the municipality. <bold>2. Officers — term "office" implies delegation of portion of</bold> <bold>sovereign power.</bold> "Office" implies a delegation of a portion of the sovereign power and the possession of it by the person filling the office and the exercise of such power within legal limits constitutes a correct discharge of duties of such office. <bold>3. Municipalities — "public officer" — duties of city engineer</bold> <bold>concerning public as not making him a public officer.</bold> Fact that duties which city engineer is appointed to perform are duties concerning public does not make him a "public officer". <bold>4. Municipalities — courts cannot interfere with supervisory</bold> <bold>powers of city manager nor impose restrictions upon city</bold> <bold>engineer which neither Legislature nor city council has seen</bold> <bold>fit to impose.</bold> Since the statute confers upon the city manager of City of Meridian the power to employ a city engineer and to supervise him in the performance of his duties, the courts cannot interfere with the exercise of such powers by city manager or impose restrictions upon engineer which neither the Legislature nor the city council has seen fit to impose. Secs. 3825.501 to 3825.5-48, Code 1942. <bold>5. Injunctions — injunctive relief denied other engineers</bold> <bold>against city engineer for acceptance of private practice while</bold> <bold>employed by municipality — pleading — demurrer — dismissal.</bold> Acceptance of private employment by city engineer for City of Meridian did not create a conflict in interest adversely affecting his actions as city engineer so as to entitle other engineers to enjoin him from engaging in such private practice where there were no allegations that such conflict had actually resulted or that public interest was adversely affected nor that city engineer had neglected his duties nor that he was engaged in private practice as civil engineer on "city time". Secs. 3825.5-01 to 3825.5-48, Code 1942.<page_number>Page 118</page_number> <bold>6. Municipalities — acceptance of private practice on his own</bold> <bold>time by city engineer was not unlawful as contrary to public</bold> <bold>policy.</bold> In the absence of any legislative declaration restricting practice of city engineer to engage in private practice, acceptance by city engineer of Meridian of employment for the performance of engineering services for private individuals on his own time and not on city time was not unlawful as contrary to public policy. Secs. 3825.5-01 to 3825.5-48, Code 1942. Headnotes as revised by Kyle, J.

<bold>1. Divorce — bill for divorce never taken as confessed.</bold> A bill for a divorce is never taken as confessed whether answered or not. <bold>2. Divorce — habitual cruel and inhuman treatment — husband</bold> <bold>failed to sustain allegations of bill of complaint.</bold> In action by husband for divorce, husband failed to sustain allegations as to habitual cruel and inhuman treatment. <bold>3. Divorce — homestead — husband not entitled to partition and</bold> <bold>sale of — wife entitled to occupy homestead as her home.</bold> Where husband absented himself from homestesad without justifiable cause and deserted wife, husband was not entitled to have homestead sold or to a partition of proceeds, as long as wife desired to occupy homestead as her home while she was his wife. <bold>4. Divorce — joint savings account — husband failed to establish</bold> <bold>any interest in.</bold> Husband failed to show that one-half of funds in joint savings account belonged to him or what portion belonged to him, even assuming that he had contributed part of funds that were deposited in joint savings account. Headnotes as approved by McGehee, C.J. <center> ON MOTION FOR COUNSEL FEES PENDENTE LITE</center> January 6, 1958 99 So.2d 599 <bold>5. Divorce — wife, who had not asked for and obtained decree for</bold> <bold>counsel fees in Trial Court not entitled to counsel fees</bold> <bold>pendente lite for resisting appeal.</bold> Where husband brought suit for divorce, final decree sustained wife's motion to dismiss bill, and husband appealed, wife, who had not asked for or obtained decree for counsel fees in Trial Court, was not entitled to counsel fees pendente lite for resisting the appeal. Headnote as approved by Ethridge, J.

<bold>1. Trial — directed verdict — evidence — how viewed.</bold> In determining whether a party is entitled to a directed verdict, the court must look solely to the testimony in behalf of the party against whom the directed verdict is requested, and, taking that testimony as true, along with all reasonable inferences which could be drawn therefrom favorable to such party, if it could support a verdict for him, the directed verdict should not be given. <bold>2. Trial — directed verdict — evidence — how viewed.</bold> Even where evidence is such that a judgment for a party would have to be set aside as being contrary to the overwhelming weight of the evidence, it does not necessarily follow that the other party is entitled to a directed verdict. <bold>3. Motor vehicles — collision — negligence — evidence — question</bold> <bold>as to whether defendant was negligent — for jury — directed</bold> <bold>verdict for plaintiff on issue of liability — error.</bold> In action for personal injuries sustained by plaintiff when his automobile was struck from the rear by defendant's automobile, evidence presented a question for the jury as to whether defendant was negligent in driving at an excessive speed, or in failing to exercise proper control over his automobile or in following another vehicle too closely, or as to whether the proximate cause of the collision was the manner in which plaintiff's vehicle was driven into intersection, and Trial Court was in error in directing a verdict for plaintiff on the issue of liability. Headnotes as approved by Gillespie, J.<page_number>Page 361</page_number>

<bold>1. Executors and administrators — widow's allowance of $6,000 —</bold> <bold>not excessive.</bold> Where testator left estate of the approximate value of $139,000, a widow's allowance of $6,000 for one year's support would not be deemed excessive. Sec. 561, Code 1942. <bold>2. Executors and administrators — widow's allowance — within</bold> <bold>sound discretion of Chancellor.</bold> A widow's allowance for one year's support is within the sound discretion of Chancellor. Sec. 561, Code 1942.<page_number>Page 367</page_number> <bold>3. Appeal — executors and administrators — administrator's fee —</bold> <bold>Supreme Court not to interfere with Chancery Court's</bold> <bold>discretion where fee within limits prescribed by statute.</bold> The Supreme Court will not interfere with Chancery Court's exercise of discretion in regards to allowance of an administrator's fee within limits prescribed by statute. Sec. 561, Code 1942. <bold>4. Executors and administrators — executrix' fee — allowance not</bold> <bold>an abuse of Chancellor's discretion.</bold> In such case, an allowance to the executrix of $5,000 was not an abuse of discretion by the Chancellor. Sec. 561, Code 1942. Headnotes as approved by Arrington, J.

<bold>1. Eminent domain — easements — light, air, view and access —</bold> <bold>owner must have right in nature of easement in street where</bold> <bold>interference occurs in order to recover.</bold> In order for owner of property to be entitled to recover from highway commission for interference with light, air and view because of relocation of highway, owner must have right in nature of easement in street where such interference occurs. <bold>2. Eminent domain — owner whose property did not abut on</bold> <bold>property highway commission intended to utilize as right of</bold> <bold>way</bold><page_number>Page 475</page_number> <bold>not entitled to damages for interference with light, air and</bold> <bold>view.</bold> Where embankment was to be constructed by highway commission, in connection with relocation of highway, on property which was not in existence as a street but which commission had presumably acquired and which commission intended to utilize as right of way on which to construct street, and not on street on which owner's property abutted, owner was not entitled to damages for interference with light, air and view. <bold>3. Eminent domain — city without power to close alley except</bold> <bold>upon due compensation paid abutting owners for damages</bold> <bold>sustained thereby.</bold> City had no power to close any portion of alley which ran through entire block except upon due compensation being first made to owners of land abutting alley for all damages sustained thereby. Sec. 3374-127, Code 1942. <bold>4. Eminent domain — suit for damages in anticipation that city</bold> <bold>would close alley in violation of statute and that highway</bold> <bold>commission would obstruct it by dirt embankment was</bold> <bold>premature.</bold> Suit for damages in anticipation that city would close alley in violation of statute and that state highway commission would enter upon alley and obstruct it by a dirt embankment was premature and could not be maintained where no damages had yet resulted. Sec. 3374-127, Code 1942. <bold>5. Eminent domain — city and highway commission would be jointly</bold> <bold>liable if city closed alley in violation of statute and</bold> <bold>commission entered upon alley and obstructed it by dirt</bold> <bold>embankment.</bold> If city closed alley in violation of statute and highway commission entered upon alley and obstructed it by a dirt embankment, city and commission would be jointly liable. Sec. 3374-127, Code 1942. <bold>6. Pleading — declaration stating two separate causes of action</bold> <bold>— where demurrer to one cause of action was sustained and</bold> <bold>demurrer to other cause of action was overruled, upon refusal</bold> <bold>of plaintiff to amend, dismissal of declaration was required.</bold> Claim for damages against highway commission for interference with light, air and view which would allegedly result from construction of proposed highway and claim for damages which would allegedly result from closure of one end of alley by commission's construction of embankment attempted to state two separate causes of action and where demurrer to one cause of action was sustained and demurrer to the other was overruled, upon refusal of plaintiff to amend his declaration, dismissal of declaration was required. Headnotes as approved by Lee, J.<page_number>Page 476</page_number>

<bold>1. Motor vehicles — collision — negligence — statute prohibiting</bold> <bold>driving of motor vehicle on Federal designated highway under</bold> <bold>certain conditions at speed of less than 30 miles per hour —</bold> <bold>instructions — whether violation of statute was proximate</bold> <bold>cause of collision — jury question.</bold> In action for injures sustained when plaintiff's overtaking automobile struck rear of defendant's truck, whether or not the statute prohibiting the driving of motor vehicles at a speed less than 30 miles per hour on a Federal designated highway where no hazard exists was violated by defendant and whether such violaton was the proxmate cause of the damages should have been submitted to the jury on applicable instruction requested by plaintiff, and refusal of such instruction by Trial Court constituted reversible error. Secs. 8178, 8189(b), Code 1942. Headnote as approved by Roberds, P.J.