Volume 240 — Mississippi Reports

<bold>1. Insurance — automobile damage — measure of loss of an</bold> <bold>automobile damaged but not destroyed by collision — rule.</bold> The measure of loss to an automobile damaged but not destroyed by a collision is the difference between its reasonable market value immediately prior to the collision and its reasonable market value after all reasonable and feasible repairs have been made.<page_number>Page 11</page_number> <bold>2. Insurance — automobile damage — loss of market value — rule.</bold> In an action for recovery under an automobile collision policy, if in spite of repairs there remains a loss in actual market value estimated as of the collision date, such deficiency is to be added to the cost of repairs, less the deductible amount in the policy in determining insured's recovery. <bold>3. Appeal — insurance — automobile damage — instructions —</bold> <bold>erroneous — total loss when car can be repaired.</bold> Where in action by an insured against his automobile collision insurer for recovery of property damage to his automobile, there was no evidence in the record to support a finding that damage to the insured automobile represented a total loss, and there was uncontradicted evidence offered on behalf of insurer, to the effect that the automobile could be repaired and at least a substantial restoration to complete function effected, it was prejudicial error for the court to permit the jury to make an award of damages based on total loss. <bold>4. Insurance — automobile damage — instructions — erroneous.</bold> Requested instruction to effect that if jury found insurer agreed to fix insured's automobile and failed to fix the automobile in accordance with such agreement, jury was to find for insured, was erroneous, in that it furnished jury no guide for assessment of damages if jury found insurer failed to make repairs in accordance with its agreement. <bold>5. Insurance — automobile damage — evidence — presented jury</bold> <bold>questions.</bold> Party not entitled to peremptory instruction where evidence presented questions for the jury as to whether, despite repairs made on the automobile, there yet remained a loss in actual value estimated after the collision date, and as to whether the repairs made pursuant to an alleged agreement of the parties were actually made in accordance with the agreement. Headnotes as approved by Kyle, J.

<bold>1. Specific performance — principles governing granting or</bold> <bold>precluding relief.</bold> Suits for specific performance are not governed by same principles as suits to recover damages or set aside executed contracts, and a weaker case is sufficient to defeat the former. <bold>2. Specific performance — principles governing granting or</bold> <bold>precluding relief — false and fraudulent representations.</bold> Courts generally deny specific performance because of false and fraudulent representations, even though they are not such, or were not made in such circumstances, as to invalidate contract or prevent or sustain other relief. <bold>3. Equity — clean hands maxim.</bold> He who comes into equity must come with clean hands. <bold>4. Specific performance — bad trade or bargain — as not</bold> <bold>precluding specific performance.</bold> Mere fact that one makes a bad trade or bargain does not constitute unfairness precluding specific performance, and a court of equity will not exercise its discretion to relieve one of a bad bargain on that ground alone. <bold>5. Specific performance — option to purchase realty — false</bold> <bold>representations — as precluding specific performance.</bold> That wife's option to buy realty was procured by husband's false representation that nearby oil derrick had been torn down precluded specific performance of option at suit of wife's assignee. Headnotes as approved by Gillespie, J.

<bold>1. Eminent domain — damages — award excessive — remittitur</bold> <bold>ordered.</bold> Under evidence in case, award of $1,077 for taking of 1.6 acres off side of 40-acre tract in rural area was excessive and should be reduced to $577. Headnote as approved by Gillespie, J.

<bold>1. Municipalities — assault and battery by police officer —</bold> <bold>principle of municipal immunity invoked.</bold> Municipality was immune from liability for unlawful assault and battery committed by police officer while engaged in enforcing the laws of municipality, even if appointing authorities knew at the time of appointment that officer had theretofore<page_number>Page 56</page_number> been convicted of murder, and retained officer after he committed several other assaults. <bold>2. Assault and battery — award against police officer not</bold> <bold>inadequate.</bold> Award of $1,000 for unlawful assault and battery committed by police officer while engaged in enforcing the laws of the municipality was not inadequate. Headnotes as approved by Gillespie, Jr.

<bold>1. Workmen's compensation — dependency — claimant was wholly</bold> <bold>dependent brother of deceased employee.</bold> Substantial evidence supported findings of Workmen's Compensation Commission that claimant was incapable of self-support<page_number>Page 85</page_number> because of mental and physical disabilities and that claimant, although he had received irregular and insubstantial sums from a relative and had been earning a small amount each month by cleaning a church, was wholly dependent brother of deceased employee who for many years had contributed regularly each month to claimant's support. Secs. 6998-02(12), 6998-13(g), Code 1942. <bold>2. Workmen's compensation — dependents — whether claimant is</bold> <bold>dependent of deceased employee is question of fact.</bold> Whether workmen's compensation claimant is dependent of deceased employee is question of fact. Sec. 6998-13(g), Code 1942. <bold>3. Workmen's compensation — commission — trier of facts.</bold> Workmen's Compensation Commission is trier of facts. <bold>4. Workmen's compensation — evidence — Commission's finding of</bold> <bold>facts — affirmed if supported by substantial evidence.</bold> Workmen's Compensation Commission's finding of facts will be affirmed if supported by substantial evidence. <bold>5. Workmen's compensation — evidence — conflicting evidence —</bold> <bold>how viewed by Supreme Court.</bold> Supreme Court views conflicting evidence most favorably to claimant in whose favor the Workmen's Compensation Commission has found. <bold>6. Workmen's compensation — Act must receive a common-sense and</bold> <bold>liberal construction.</bold> The Workmen's Compensation Act must receive a common-sense and a liberal construction in light of legislative purpose. <bold>7. Workmen's compensation — a phrase constituting part of</bold> <bold>legislative statement of policy not to be considered in</bold> <bold>vacuo.</bold> A phrase constituting part of legislative statement of policy cannot be considered in vacuo but must be related to the reasons for the statute. <bold>8. Workmen's compensation — average weekly wage — evidence</bold> <bold>supported Commission's finding.</bold> Substantial evidence supported Workmen's Compensation Commission's finding as to average weekly wages of deceased employee. Headnotes as approved by Ethridge, J.

<bold>1. Easements — easement for roadway purposes — title by grant —</bold> <bold>title by adverse user — fee owner enjoined from obstructing</bold> <bold>roadway.</bold> Successors in title to grantee were owners of easement over roadway, and were entitled to injunction to prevent fee owner from obstructing roadway, where fee owner's predecessor in title conveyed to grantee land, which had no outlet to public road, by deed which recited agreement to open and keep open 60-foot-wide strip to named public road, and such strip was subsequently used as a roadway. Headnote as approved by McElroy, J.

<bold>1. Labor relations — Railway Labor Act — seniority rights —</bold> <bold>exclusive jurisdiction vested in Railroad Adjustment Board.</bold> In chancery action against railroad for loss of seniority under union contract, for an accounting and to recover wages allegedly wrongfully withheld from complainant, Supreme Court held that Railroad Adjustment Board had exclusive jurisdiction of any grievance against railroad for termination of seniority rights upon failure of employee to respond to notice to return to work following layoff and employment of others having inferior seniority rights, and that Chancery Court had no jurisdiction of suit to recover wages lost as a result of alleged violation of seniority rights. Railway Labor Act, Sec. 1 et seq., 45 U.S.C.A., Sec. 151 et seq. Headnote as approved by Arrington, J.

<bold>1. Trial — directed verdict — peremptory instruction — request</bold> <bold>for — evidence how considered.</bold> In determining whether party is entitled to directed verdict or peremptory instruction, Court must look solely to testimony<page_number>Page 243</page_number> on behalf of party against whom directed verdict is requested and must take that testimony as absolutely true, along with all reasonable inferences, which can be drawn therefrom, favorable to such party. <bold>2. Negligence — proximate cause — usually a jury question.</bold> The negligence of the defendant may be established by evidence, but the question of whether the established negligence of defendant was the proximate cause of the injury is usually one for the jury. <bold>3. Motor vehicles — intersectional collision — negligence —</bold> <bold>proximate cause — jury question.</bold> Question whether alleged negligence of defendant in entering intersection was proximate cause of intersectional collision was for jury. <bold>4. Damages — instructions — confined to such damages as are</bold> <bold>shown by the evidence.</bold> Damage instruction should confine jury to such damages as are shown by evidence. Headnotes as approved by McElroy, J.