Volume 236 — Mississippi Reports

<bold>1. Workmen's compensation — applicability of statutes — conflict</bold> <bold>of laws — State and Federal laws — relation of injury to</bold> <bold>navigable waters or martime employment.</bold> A State compensation act, even though elective, cannot be made applicable to injuries sustained by workman employed under maritime contracts where particular employment is of maritime nature and where injury occurs on water within admiralty jurisdiction except in case of matters of purely local concern, the regulation of which by State will work no material prejudice to characteristic features of general maritime law, nor interference with proper harmony or uniformity of that law in its international or interstate relations. Sec. 6998-03, Code 1942; Jones Act, 46 U.S.C.A., Sec. 688. <bold>2. Workmen's compensation — death benefits — "seaman" — Jones</bold> <bold>Act controlling — Commission had no jurisdiction of claim —</bold> <bold>facts would not justify application of doctrine of "local</bold> <bold>concern" or the "twilight zone of jurisdiction."</bold> Where decedent was a "seaman" actively engaged at time of his death in performance of his duties as master and pilot on tugboat engaged in interstate commerce on navigable waters of the United States, facts would not justify the application by the court of the doctrine of "local concern" or the "twilight zone of jurisdiction" and Mississippi Workmen's Compensation Act was inapplicable, and Commission had no jurisdiction of claim for death benefits thereunder. Sec. 6998-01, et seq., Code 1942; Jones Act, 46 U.S.C.A., Sec. 688. <bold>3. Workmen's compensation — decedent's employment maritime —</bold> <bold>acceptance of premium by carrier as not working an estoppel.</bold> Where decedent's employment was maritime and not subject to State Workmen's Compensation Law, statute estopping carrier from asserting that employment is not covered under such law when carrier has accepted premiums on policy did not apply. Sec. 6998-40, Code 1942. Headnotes as approved by Kyle, J.

<bold>1. Negligence — evidence — causal connection between agency and</bold> <bold>injury may be shown by circumstantial as well as by direct</bold> <bold>evidence.</bold> Causal connection between an agency and injury complained of may be shown by circumstantial, as well as by direct evidence. <bold>2. Landlord and tenant — negligence — liability of landlord for</bold> <bold>damages in voluntarily making repairs and improvements —</bold> <bold>general rule.</bold> Although lease does not contain a covenant to make repairs, if landlord voluntarily undertakes to make repairs during term of lease he is liable for want of due care in execution of work on ground of negligence but not because of any implied covenant to repair, and limitation on this basis of liability is that<page_number>Page 160</page_number> it exists for doing repairs in a negligent manner, and a distinction between nonfeasance and misfeasance of landlord is made. <bold>3. Landlord and tenant — negligence — evidence — landlord not</bold> <bold>liable for personal injuries sustained by tenant on theory</bold> <bold>that landlord was negligent in voluntarily making repairs to</bold> <bold>leased premises.</bold> Where tenant brought action against landlord for personal injuries sustained when scuttle-hole cover blew off roof of apartment building during storm and struck tenant, but lease contained no covenant to make repairs and evidence did not indicate landlord was guilty of any active negligence with regard to installation of scuttle-hole cover or that landlord had made any repairs to cover, tenant could not recover on basis of liability of landlord who, having lease containing no covenant to repair, voluntarily undertakes to make repairs during term of lease. <bold>4. Landlord and tenant — negligence — responsibility of landlord</bold> <bold>as to part of premises maintained for common use of tenants —</bold> <bold>general rule.</bold> Where owner leases different parts of a multi-unit apartment building to different tenants and expressly or impliedly reserves other parts such as entrances, halls, stairways, porches and walks, for the common use of different tenants, it is landlord's duty to exercise reasonable care to keep safe such parts over which he reserves control, and, if he is negligent in this respect, and personal injury results to a tenant or a person there in the right of the tenant, he is liable in tort. <bold>5. Landlord and tenant — negligence — landlord not liable for</bold> <bold>personal injuries sustained by tenant on theory of</bold> <bold>responsibility of landlord as to part of premises maintained</bold> <bold>for common use of tenants.</bold> Where tenant in multi-unit apartment building was injured when struck by a scuttle-hole cover blowing off apartment building roof during storm and evidence would not warrant that landlord had failed to exercise ordinary care in keeping scuttle-hole cover in reasonably safe condition for purpose intended, and landlord's repairman thought that the cover had been adequately installed and had no reason to think otherwise, and landlord had no actual or constructive knowledge of any defect in installation of cover, tenant could not impose liability on landlord on theory that it was landlord's duty to exercise care to keep parts of apartment building reserved for common use of different tenants in safe condition. Headnotes as revised by Ethridge, J.<page_number>Page 161</page_number>

<bold>1. Property — term "personal property" includes.</bold> The term "personal property" in its broadest legal signification includes everything the subject of ownership not being land or any interest in land, as goods, chattels, money, notes, bonds, stocks and choses in action generally. <bold>2. Wills — law does not presume that testator intended to die</bold> <bold>intestate as to part of his estate.</bold> The law does not presume that testator intended to die intestate as to part of his estate. <bold>3. Wills — construction — provision in will evinced no intent to</bold> <bold>restrict bequest of "personal property" to tangible articles</bold> <bold>of personalty.</bold> Properly construed, will bequeathing to testatrix' daughter the entire contents of her home and other "personal property" of which testatrix might die possessed "to do with as she wishes" evinced no intent to restrict bequest to tangible articles of personal property. <bold>4. Wills — testatrix may charge her real property with entire</bold> <bold>burden of payment of her debts and expenses of</bold> <bold>administration.</bold> A testatrix who wishes to do so may charge her real property with entire burden of payment of her debts and expenses of administration to complete exoneration of her personalty, if and when real estate is sufficient to bear charge. <bold>5. Wills — construction — testatrix had right to bequeath her</bold> <bold>personal property to daughter "to do with as she pleases" and</bold> <bold>direct that "all expenses" be paid out of proceeds of sale of</bold> <bold>specified realty.</bold> Testatrix had right to bequeath her personal property to her daughter "to do with as she wishes" and to direct that "all expenses" be paid out of proceeds of sale of her residence property in Biloxi; and Chancellor did not err in deciding that she had done just that by her will.<page_number>Page 224</page_number> <bold>6. Amendments — proposed amendment of answer and cross-bill</bold> <bold>containing nothing more than restatement of defendant's theory</bold> <bold>of case — not error to disallow.</bold> It was not error to overrule motion for leave to amend answer and cross-bill, where proposed amendment contained nothing more than restatement of defendants' theory of case, which had already been clearly stated in their answer and cross-bill, and where amendment, if allowed, would have had no effect upon final determination of issues presented by pleadings. <bold>7. Appeal — wills — evidence — not reversible error to exclude</bold> <bold>offered evidence as to financial circumstances and position of</bold> <bold>legatees.</bold> In will construction case, it was not reversible error to exclude offered evidence as to financial circumstances and position of legatees. <bold>8. Executors and administrators — nonresident not disqualified</bold> <bold>from serving as executor.</bold> That individual was a nonresident of State was not sufficient to disqualify him from serving as executor. <bold>9. Executors and administrators — hostility existing between</bold> <bold>executor and one of legatees as not justifying executor's</bold> <bold>removal from office.</bold> Hostility existing between executor and one of legatees would not justify executor's removal from office. <bold>10. Executor and administrators — payment of demand note to stop</bold> <bold>interest and to redeem bonds pledged as security without</bold> <bold>requiring note to be probated as not justifying executor's</bold> <bold>removal from office.</bold> That executor had paid demand note, secured by bonds, without requiring note to be probated and registered as a claim against estate did not constitute sufficient ground for his removal where he had paid note to stop interest and to redeem assets pledged to secure debt. Headnotes as approved by Kyle, J.

<bold>1. Municipalities — closing alley — where property owner's bill</bold> <bold>of exceptions to the closing did not disclose that he was an</bold> <bold>abutting owner of alley, property owner was not a "party</bold> <bold>aggrieved" within meaning of appeal statute and his appeal</bold> <bold>from closing did not confer necessary jurisdiction on Circuit</bold> <bold>Court to vacate the ordinance.</bold> Where city proposed to close an alley, a property owner whose bill of exceptions to the closing did not disclose that he was an abutting owner of the alley but that he owned other nearby lots and that the closing would require him to follow a "roundabout<page_number>Page 238</page_number> course" to gain access to his workshop was not a "party aggrieved" within the meaning of the appeal statute, and hence his appeal from the closing did not confer the necessary jurisdiction upon Circuit Court to vacate the ordinance. Secs. 1195, 3374-127, Code 1942. Headnote as approved by McGehee, C.J.

<bold>1. Conservation — game — wild animals — State has power to</bold> <bold>establish rules and regulations for conservation of.</bold> The State has the power to establish rules and regulations for the conservation of the supply of wild animals and game, for their protection and for the public good.<page_number>Page 514</page_number> <bold>2. Criminal law — headlighting — evidence sustained conviction</bold> <bold>for hunting deer by headlighting.</bold> Evidence, including testimony that defendants were seen driving slowly at night with their automobile headlights on, on a sparsely traveled public road, in an area inhabited by deer, with a spotlight shining from each side of their automobile, and a shotgun loaded with buckshot in the front seat, sustained conviction for hunting deer by headlighting. Sec. 5866-02, Code 1942. <bold>3. Instructions — read and considered together.</bold> All instructions must be read and considered together. Headnotes as approved by Ethridge, J.

<bold>1. Workmen's compensation — death benefits — burden of proof —</bold> <bold>burden on widow to prove that work which deceased was</bold> <bold>performing contributed to his death.</bold> In widow's action for death benefit on account of deceased employee, burden was upon widow to prove that work which deceased was performing contributed to his death under the circumstances of the case. Sec. 6998-01 et seq., Code 1942. <bold>2. Workmen's compensation — presumptions — where employee found</bold> <bold>dead at place where his duties required him to be —</bold> <bold>presumption or inference that death arose out of employment.</bold> Where employee is found dead at place his duties required him to be or where he might probably have been in the performance of his duties during the hours of work, it is presumed that accident arose out of his employment within the Compensation Act, in absence of evidence that he was not engaging in master's business. <bold>3. Workmen's compensation — where employee was found slumped</bold> <bold>over at his place of work and died almost immediately</bold> <bold>thereafter from coronary occlusion or heat stroke —</bold> <bold>circumstances and evidence justified granting of award.</bold> In workmen's compensation proceeding by widow of deceased 30-year old, apparently strong employee who was found<page_number>Page 758</page_number> slumped over at his place of work on a hot July day and died almost immediately thereafter of what physician thought, in his best judgment, was a coronary occlusion, evidence justified granting of award. <bold>4. Workmen's compensation — Commission's findings — judicial</bold> <bold>review — Circuit Court justified in disturbing Commission's</bold> <bold>findings.</bold> Ordinarily, where Commission has passed on question of whether accident or death was compensable, Circuit Court and Supreme Court should not disturb finding of Commission, but where there was no substantial contradiction in evidence as to material facts, and case rested upon presumption and inference from the undisputed facts, Circuit Court was justified in disturbing findings. Headnotes as approved by Roberds, P.J.

<bold>1. Evidence — eminent domain — sales of other property as</bold> <bold>supporting valuations — rule as to admissibility.</bold> For evidence of sales of other property to be admissible in condemnation case, sales must have involved land similar to that condemned and of like quality, and sales must not have been remote in point of time. <bold>2. Evidence — eminent domain — evidence concerning yield and</bold> <bold>production of income from property — erroneously admitted.</bold> In condemnation case, it was error to admit evidence concerning yield and production of income from property as element of valuation. <bold>3. Eminent domain — evidence — evidence as to adaptability for</bold> <bold>commercial purposes of tract west of tract in use —</bold> <bold>erroneously admitted.</bold> Where it appeared that there was no immediate need or probability that land west of tract in use would be used in condemnee's business, evidence as to adaptability of such land did not furnish a substantial basis for jury to consider, and it was error to permit interrogation of condemnee's witnesses as to adaptability for commercial purposes of land west of tract in use. <bold>4. Eminent domain — evidence — damages — erroneous admission of</bold> <bold>evidence and gross excessiveness of verdict required reversal</bold> <bold>in toto of judgment appealed from.</bold> Erroneous admissions of evidence and gross excessiveness of verdict required reversal in toto of judgment entered in condemnation case. <bold>5. Appeal — eminent domain — condemnor as not waiving its right</bold> <bold>to appeal by taking physical possession of property without</bold> <bold>first paying damages.</bold> Condemnor did not waive its right to appeal by taking physical possession of property without first paying damages; nor did injunction, requiring condemnee to remove his personal property from right-of-way and to permit commission to proceed to construct highway, operate as release of errors. Secs. 1347, 2766(a, b), 8032, Code 1942. Headnotes as approved by Ethridge, J.

<bold>1. Motor vehicles — head-on collision — evidence — presented</bold> <bold>fact questions as to negligence of both drivers.</bold> In action by plaintiff truck driver for damages resulting from collision with defendant's oncoming truck which had just passed another vehicle and was returning to its own side of the road, evidence presented questions of fact as to negligence of both drivers. <bold>2. Motor vehicles — head-on collision — negligence —</bold> <bold>instructions — duty of driver to keep vehicle under reasonable</bold> <bold>control under circumstances.</bold> In such case, there was no error in jury instruction that it was duty of plaintiff driver to keep truck under reasonable control considering the nature of the highway and any and all circumstances or conditions then existing and that if she failed to do so and it was sole proximate cause of the collision, then to find for defendant. <bold>3. Negligence — motor vehicles — head-on collision — sudden</bold> <bold>emergency.</bold> Although an actor confronted with sudden emergency cannot be held to same standards of conduct as one who had an opportunity to reflect, he is still required to maintain conduct which is reasonable under the circumstances. <bold>4. Motor vehicles — head-on collision — negligence —</bold> <bold>counterclaim — instructions — considered together.</bold> In such case, in which defendant filed counterclaim, instructions which failed to define in themselves claimed negligence of plaintiff driver, even though they should have done so, were not erroneous when considered together with other instructions which presented theories that plaintiff driver was negligent in failing to keep truck under reasonable control under the circumstances. <bold>5. Appeal — plaintiff could not complain of verdict in her favor</bold> <bold>on counterclaim unless defendant's instructions were so</bold> <bold>confusing as to mislead jury.</bold> Plaintiff could not complain on appeal of verdict in her favor on counterclaim unless defendant's instructions were so confusing as to mislead jury. Headnotes as approved by Ethridge, J.<page_number>Page 827</page_number>