Volume 234 — Mississippi Reports

<bold>1. Evidence — ordinarily events which occur after filing of</bold> <bold>complaint — not admissible to prove allegations of complaint.</bold> Ordinarily evidence of events which occur after the filing of complaint is not admissible to prove allegations of complaint. <bold>2. Intoxicating liquors — suit to abate liquor nuisance —</bold> <bold>evidence showing nuisance continued after filing of complaint</bold> <bold>— admissible.</bold> In suit to have certain described realty declared a nuisance and to enjoin further use thereof for purpose of violating liquor<page_number>Page 22</page_number> laws, it was necessary to show that alleged nuisance was continuous, and hence evidence that described realty was being used to violate liquor laws more than a month after complaint was filed was admissible. <bold>3. Intoxicating liquors — suit to abate liquor nuisance —</bold> <bold>evidence as to reputation of defendants and described realty</bold> <bold>with respect to violation of liquor laws — admissible.</bold> Evidence as to reputation of defendants and described realty under their control as tenants with respect to violation of liquor laws was admissible, in view of other evidence as to violation of liquor laws by defendants and use of described realty for such purpose. <bold>4. Intoxicating liquors — suit to abate liquor nuisance —</bold> <bold>evidence warranted decree declaring described premises a</bold> <bold>nuisance — and granting of injunctive relief.</bold> Evidence sustained allegations of complaint and warranted decree declaring described premises a nuisance and enjoining its further use for purpose of violating liquor laws. Headnotes as approved by Hall, J.

<bold>1. Sales — motor vehicles — conditional sales contract —</bold> <bold>warranty — evidence — instructions.</bold> In action by seller against buyer of used automobile under conditional sales contract to recover balance due on purchase price, wherein buyer pleaded alleged guarantee, and wherein evidence was introduced without objection concerning alleged guarantee and that automobile was not as guaranteed, Trial Court did not err in giving an instruction which submitted issue whether seller had guaranteed the condition of the automobile, though conditional sales contract contained provision that no agreement, representation, or warranty shall be binding on the seller unless expressly contained in the contract, and though the alleged guarantee was not contained in the contract. <bold>2. Appeal — evidence — incompetent evidence admitted without</bold> <bold>objection could not be expunged from record on appeal.</bold> Where there was no complaint at time of trial concerning the admission of evidence, which was allegedly inadmissible, such evidence could not be expunged from record on appeal.<page_number>Page 61</page_number> <bold>3. Warranty — motor vehicles — vendor and purchaser — evidence —</bold> <bold>sustained verdict for purchaser.</bold> In action by seller against buyer of used automobile under conditional sales contract to recover balance due on purchase price, wherein buyer contended that he was not liable for balance due because automobile was not in condition represented and guaranteed by seller, evidence sustained verdict for buyer. Headnotes as approved by Lee, J.

<bold>1. Officers — fees — statutes — authorizing officers to charge</bold> <bold>and collect fees — strictly construed against officers.</bold> Statutes authorizing officers to charge and collect fees will be strictly construed against the officer, and if compensation for services is not clearly provided by statute, it must be denied. <bold>2. Officers — payment of fees of public officers — a purely</bold> <bold>statutory matter.</bold> Payment of fees of public officers is a purely statutory matter. <bold>3. Chancery Courts — without power to adjudicate in first</bold> <bold>instance amount clerk entitled to receive as fees for services</bold> <bold>rendered in B.A.W.I. bond issue.</bold> Where fees for services rendered by Chancery Clerk in a B.A.W.I. bond issue were allowed and paid by Board of Supervisors in an amount erroneously computed under repealed subdivision of statute, Chancery Court was without power to adjudicate in first instance the amount which clerk was entitled to receive as fees for such services. Sec. 3928, 3932(t, x, pp), Code 1942. Headnotes as approved by Arrington, J.<page_number>Page 85</page_number>

<bold>1. Minerals — State Oil and Gas Board — special field rules —</bold> <bold>spacing units — allowable formula — unitization agreement —</bold> <bold>review.</bold> In passing upon validity of special field rules of State Oil and Gas Board with reference to (1) size of spacing units in a field, where practically all of royalty and operating owners had signed a voluntary unitization of their interest in oil pool, and (2) an allowable formula, it would be neither proper nor necessary for court to consider subsequent increase in percentage of owners bound by unitization agreement. Secs. 1 et seq., 10(e), Chap. 256, Laws 1948 as amended by Chap. 220, Laws 1950. <bold>2. Appeal — State Oil and Gas Board — special field rules —</bold> <bold>court would not consider applicant's amendment proposals on</bold> <bold>objector's appeal where applicant took no cross-appeal.</bold> Where applicant took no cross-appeal from board orders, amending and suplementing special field rules, court would not, on objector's appeal, consider those of applicant's amendment proposals which had not been adopted by board. <bold>3. State Oil and Gas Board — special field rules — spacing units</bold> <bold>— allowable formula — evidence — supported board's findings.</bold> Evidence supported board's findings that special field rules (1) perpetuating as 40-acre units those developed drilling units in which any ownership had not been made subject to unitization agreement and creating a field-wide unit of remaining acreage which was 100 per cent signed up under unitization agreement and which was completely underlain by oil, (2) allocating production in accordance with surface acreage, would prevent waste, protect the coequal and correlative rights of the owners, and promote conservation objective of obtaining maximum recovery from field. <bold>4. State Oil and Gas Board — special field rules — spacing units</bold> <bold>— unitization agreement — power of board to give effect to</bold> <bold>unitization program.</bold> A voluntary unitization agreement may be made applicable to any part of a pool; and where practically all of royalty and operating owners had agreed to unitization of their interests in oil pool, board had power to give effect to unitization program by creating a field-wide unit together with such individual units as were necessary to protect coequal and correlative<page_number>Page 200</page_number> rights of owners in common source of supply. Secs. 9(b, d), 11(a), Chap. 256, Laws 1948; Sec. 10(e) as amended by Chap. 220, Laws 1950. <bold>5. State Oil and Gas Board — can allocate production from a</bold> <bold>reservoir on a fair and equitable basis.</bold> The State Oil and Gas Board can allocate production from a reservoir on a fair and equitable basis for prevention of waste and so that each unit can produce not more than its fair share. Secs. 1, 4(1, m), 6(c) (11), Chap. 256, Laws 1948. <bold>6. State Oil and Gas Board — board's allocation of production in</bold> <bold>accordance with surface acreage underlain by oil — proper.</bold> Where it appeared that sufficient wells had already been drilled to adequately drain pool, which was found to underlie not only acreage previously assigned to producing wells in field but also additional surface acres upon which there were no producing wells, it was proper for board to allocate production in accordance with surface acreage underlain by oil, without regard to whether there were producing wells thereon. Secs. 9(d), 11(a), Chap. 256, Laws 1948; Secs. 1 et seq. as amended by Chap. 220, Laws 1950; Chaps. 163, 164, Laws 1956. <bold>7. State Oil and Gas Board — unitization agreement — power of</bold> <bold>board to allocate production to nonsigning owners.</bold> Where practically all of royalty and operating owners had agreed to unitization of their interests in oil pool, board had power and duty to allocate production to nonsigning owners only on basis of production which constituted a withdrawal from tracts making up drilling units in which they had interests. <bold>8. Minerals — unitization agreement — it would have been unfair</bold> <bold>to permit minority nonsigning owners to prevent majority</bold> <bold>owners from pursuing a unitization program designed to obtain</bold> <bold>maximum recovery from field.</bold> It would have been unfair and inequitable to permit a very small minority of small fractional owners in common source of supply of hydrocarbons to prevent overwhelming majority of operating and royalty owners from pursuing a unitization program designed to obtain maximum recovery from field. Secs. 6(c) (12, 13), 9(d), Chap. 256, Laws 1948. Headnotes as approved by Ethridge, J.

<bold>1. Divorce — habitual, cruel and inhuman treatment — evidence —</bold> <bold>sustained decree granting wife a divorce.</bold> In divorce action by wife, evidence sustained decree granting wife a divorce on grounds of habitual, cruel and inhuman treatment and granting to wife custody of son. <bold>2. Divorce — alimony — matters to be considered in determining —</bold> <bold>Chancellor had no authority to order husband to join in</bold> <bold>execution of timber conveyance of timber owned by husband and</bold> <bold>wife jointly.</bold> Chancellor had no authority to order husband to join wife in execution of conveyance of timber owned by husband and wife jointly so that wife could receive entire proceeds of sale, and thus reduce wife's alimony award on strength of estimated income of wife from sale of timber, but could only consider<page_number>Page 462</page_number> what income wife would receive and what means husband would have for supporting and maintaining wife in determining amount of alimony. <bold>3. Divorce — requirement in decree that husband join wife in</bold> <bold>execution of timber deed — a moot question where husband had</bold> <bold>already sold his interest in timber.</bold> Where husband had already sold his interest in timber, requirement in Trial Court's decree referred to in Headnote No. 2 that husband should join wife in execution of deed to timber was a moot question. <bold>4. Appeal — divorce — alimony — costs.</bold> Where decree granting wife a divorce was affirmed, but alimony award and decree insofar as it undertook to direct husband to join wife in execution of deed to timber was reversed, costs on appeal would be taxed one-half against wife and one-half against husband. Headnotes as approved by McGehee, C.J.

<bold>1. Municipalities — electric power — election to authorize bonds</bold> <bold>— election, resolutions and procedure — notice a prerequisite</bold> <bold>to validity of bonds.</bold> Notice of election, for approval of revenue bonds to provide funds for acquisition of electric distribution system for town of Coldwater, was a prerequisite to validity of bonds; and neither resolution of intention and for call of election, which directed publication of the notice "in the Tate County Democrat, a newspaper published in the city of Senatobia in Tate County, Mississippi, in which the town of Coldwater is situated, such newspaper being qualified under Chap. 427, Laws of 1956", nor resolution issuing bonds, which recited that "notice of said election was given and said election was held in accordance with and as required by the laws of the State of Mississippi" adjudicated that notice had been given by publishing the same for the required time in a newspaper "having a general circulation in the town of Coldwater." Sec. 5529, Code 1942. <bold>2. Municipalities — electric power — election to authorize bonds</bold> <bold>— election, resolutions and procedure — right of taxpayer, an</bold> <bold>electric utility operating in municipality, to raise question</bold> <bold>of validity of bond issue to be used to finance acquisition of</bold> <bold>competing utility.</bold><page_number>Page 616</page_number> Taxpayer owning and operating electric power distribution system in municipality under nonexclusive franchise had rights different from those of public generally and was not barred of its right to raise question as to validity of bond issue, to be used to finance acquisition of competitive distribution system, merely because it did not invite other taxpayers to join in suit in which such question was raised. Chap. 427, Laws 1956; Sec. 3519-24, Code 1942. <bold>3. Electric power — Public Service Commission — certificate of</bold> <bold>public convenience and necessity — when required — necessity</bold> <bold>for rural cooperative to obtain permit before commencing work</bold> <bold>— an administrative matter.</bold> Whether it was necessary for rural cooperative to get permit before doing work was an administrative matter for the Public Service Commission to determine; and in suit to enjoin establishment and operation by rural co-operative of distribution system competitive to complainant's, it was error for Trial Court to hold that it was not necessary to obtain permit since work had already been performed. Sec. 7716-05(b-d), Code 1942. <bold>4. Conspiracy — definition of word "conspiracy".</bold> A "conspiracy" is a combination of persons to accomplish an unlawful purpose or a lawful purpose unlawfully. <bold>5. Fraud — it is not a fraud or unlawful to do what one has a</bold> <bold>legal right to do.</bold> It is not a fraud or unlawful to do what one has a legal right to do. <bold>6. Municipalities — electric power — power of municipality to</bold> <bold>acquire its own system where it had previously granted</bold> <bold>non-exclusive franchise for operation of electric power</bold> <bold>distribution system.</bold> Town which had previously granted a nonexclusive franchise for operation of electric power distribution system had power to acquire its own system and, though duplication of service might appear foolish, wisdom of such venture could not be judicially inquired into. Secs. 3519-08, 5528, Code 1942. <bold>7. Electric power — whether rural co-operatives should be</bold> <bold>permitted to invade an area already having benefit of electric</bold> <bold>utility was matter in first instance, for consideration of</bold> <bold>regulatory bodies.</bold> Whether rural co-operatives, which were creatures of the State and sponsored by the Federal Government, should be permitted<page_number>Page 617</page_number> to invade an area already having benefit of electric utility was matter, in first instance, for consideration of regulatory bodies. Sec. 5460, Code 1942. <bold>8. Corporations — where foreign corporation answered and became</bold> <bold>party to suit it was in court for all purposes and where some</bold> <bold>of its rights and duties were affected, cause should not have</bold> <bold>been dismissed as against it.</bold> Regardless of whether corporation was doing business in State when it answered and became party to suit it was in court for all purposes; and where some of its rights and duties were affected by proceeding, cause should not have been dismissed as against it. <bold>9. Electric power — election to authorize bonds — election,</bold> <bold>resolutions and procedure — injunction to prevent consummation</bold> <bold>of certain alleged illegal proceedings — revenue bonds in</bold> <bold>question void — question of permit left to decision of Public</bold> <bold>Service Commission — foreign corporation restored as party to</bold> <bold>the litigation.</bold> In action by taxpayer owning and operating an electric power distribution system under non-exclusive franchise to have municipality, power association and rural co-operative enjoined to prevent the consummation of certain alleged illegal proceedings already had and about to be had in connection with the acquisition by municipality of an electric distribution system, decree of Trial Court in so far as it declined to adjudicate revenue bonds in question to be void, and holding that it was not necessary that power association obtain a permit from the Public Service Commission, and in dismissing the bill of complaint against rural cooperative, was reversed, and decree was entered in Supreme Court to the effect that the bonds were void, that the question of whether or not a permit should be issued was left to the decision of the Public Service Commission before which the matter was then pending, and that the rural co-operative be restored as a party to the litigation. Headnotes as approved by Lee, J. <center> ON APPLICATION FOR WRIT OF SUPERSEDEAS</center> January 6, 1958 <cross_reference>99 So.2d 443</cross_reference> <bold>10. Appeal — supersedeas — as a matter of right — in cases not</bold> <bold>provided for.</bold> Decree, denying electric power distributor an injunction against any further proceedings by municipality and rural cooperative<page_number>Page 618</page_number> toward establishment of competitive distribution system, was not for recovery, or against retention, of specific property and did not direct sale or delivery of real estate; and complainant was not entitled to supersedeas as a matter of right. Secs. 1163, 1165, 1167, Code 1942. <bold>11. Supersedeas — function of.</bold> Function of supersedeas is to stay enforcement of judgment or decree of court below brought up for review by appeal. <bold>12. Supersedeas — right — generally.</bold> Supersedeas will not ordinarily issue to restrain party from acting or proceeding under judgment or decree where no process of, or action by, court below is involved; however, there are certain situations that may be said to be exceptions, as, for instance, where judgment or decree of lower court orders fiduciary to distribute funds which are subject of litigation, in which case appellate court may have inherent power to issue writ of supersedeas staying lower court and fiduciary from making such distribution pending outcome of appeal. <bold>13. Supersedeas — self-executing judgment not affected by.</bold> A self-executing judgment is not affected by supersedeas. <bold>14. Injunctions — supersedeas — decree denying electric power</bold> <bold>distributor injunction against further proceedings by</bold> <bold>municipality and rural cooperative toward establishment of</bold> <bold>competitive distribution system — "take nothing" portion —</bold> <bold>self-executing.</bold> In action by taxpayer owning and operating electric power distribution system in municipality under nonexclusive franchise to have municipality and rural cooperative distributing electrical energy in vicinity enjoined from proceeding further in establishing and operating a competitive distribution system in municipality, that portion of decree adjudging that complaining party "take nothing" was self-executing and writ of supersedeas could not affect it even if application therefor were granted. <bold>15. Appeal — affirmative injunctive relief not grantable in</bold> <bold>Supreme Court under guise of supersedeas.</bold> Affirmative injunctive relief, denied to appellant by lower court, may not be granted in Supreme Court under guise of writ of supersedeas. Sec. 1169, Code 1942. Headnotes as approved by Gillespie, J.<page_number>Page 619</page_number> <center> ON SUGGESTION OF ERROR ON MOTION TO RETAX COSTS</center> May 4, 1959 112 So.2d 222 <bold>16. Appeal — costs — application to have omitted item of cost</bold> <bold>included in bill of costs granted.</bold> Where Chancery Clerk had omitted to include in transcript a statement of cost accruing to court reporter for transcribing notes of evidence, appellant's motion to have such costs allowed after final judgment had been entered amounted to an application to include in costs taxable against appellees cost which had been omitted in taxing bill of costs, and Supreme Court would allow the addition of such item as a proper item of costs. Secs. 1193, 1595, Code 1942; Rules 19, 33, Supreme Court Rules. Headnote as approved by Holmes, J.

<bold>1. Master and servant — negligence — requiring young and</bold> <bold>inexperienced employee to do a job in a dangerous manner —</bold> <bold>failure to furnish safe and proper equipment and a safe place</bold> <bold>to work — allegations of declaration not supported by the</bold> <bold>evidence.</bold> In suit against employer for death of 19 year old farm laborer as a result of being struck on the head by old telephone pole while pulling it down by means of a short cable attached to tractor, allegations that employer, knowing that laborer was not fully capable of making decisions, directed him to use tractor and cable to pull down poles and refused to furnish laborer a safe place in which to work and safe and proper equipment were not supported by the evidence. <bold>2. Trial — directed verdict — introduction of evidence after</bold> <bold>rejection of motion for, as constituting waiver of defendant's</bold> <bold>right to complain of Trial Court's ruling on appeal.</bold> The introduction of evidence by defendant after the rejection of his motion for a directed verdict at the close of plaintiff's testimony constituted a waiver of any right of the defendant to complain of Trial Court's ruling on appeal. <bold>3. Master and servant — negligence — case submitted on incorrect</bold> <bold>legal theory — proper theory of case under plaintiff's</bold> <bold>evidence.</bold> Under plaintiff's evidence in such suit, employer could be held liable, if at all, only on theory that another employee directed to remove poles was acting as employer's agent in directing decedent to pull pole down by means of a short cable attached to tractor, that means to be used in removing poles had been left by employer to judgment of employee directed to remove them, and that the danger was not so obvious as to constitute negligence of decedent the sole proximate cause of injury and death. <bold>4. Appeal — master and servant — negligence — failure to submit</bold> <bold>case on proper issues of negligence and proximate cause</bold> <bold>required a reversal of verdict and judgment for plaintiff.</bold> Failure to submit suit against employer for death of farm laborer on proper issues of negligence and proximate cause under only theory on which defendant could be held liable under plaintiff's own evidence required reversal of verdict and judgment for plaintiff. Headnotes as approved by McGehee, C.J.<page_number>Page 736</page_number>

<bold>1. Workmen's compensation — Commission's finding of 60 per cent</bold> <bold>loss of use of hand supported by substantial evidence.</bold> Finding of Commission that loss of first, second and third fingers of left hand by operator of veneer machine resulted in 60<page_number>Page 769</page_number> per cent loss of use of hand was supported by substantial evidence. Sec. 6998-09(c) (7, 9, 10, 17), Code 1942. <bold>2. Workmen's compensation — proportioning loss of two or more</bold> <bold>digits to loss of use of hand or foot occasioned thereby —</bold> <bold>function of Commission.</bold> Proportioning the loss of two or more digits to the loss of use of hand or foot occasioned thereby is essentially a function of the Workmen's Compensation Commission, subject to requirement that award must be based on substantial evidence. Sec. 6998-09(c) (7, 9, 10, 17), Code 1942. <bold>3. Workmen's compensation — evidence — award of compensation for</bold> <bold>loss of three fingers of left hand on basis of 60 per cent</bold> <bold>loss of use of hand — supported by substantial evidence.</bold> Where substantial evidence justified award of compensation for loss of three fingers of left hand on basis of 60 per cent loss of use of hand, reversal of award by Circuit Court was error. Sec. 6998-09 (c) (7, 9, 10, 17), Code 1942. Headnotes as approved by Gillespie, J.