Volume 241 — Mississippi Reports

<bold>1. Executors and administrators — claims against estate of</bold> <bold>decedent — evidence to establish must be clear and reasonably</bold> <bold>positive.</bold> Claim against estate of deceased must be established by clear and reasonably positive evidence when contested by administrator. <bold>2. Executors and administrators — claims against estate of</bold> <bold>decedent — estoppel — administrator not estoppel from denying</bold> <bold>liability on claim.</bold> Fact that administrator and heirs of deceased used claim against estate and probate affidavit attached thereto as evidence against claimant in her suit to establish that she was common-law wife of deceased did not estop administrator from thereafter denying liability on claim. <bold>3. Executors and administrators — claims against estate of</bold> <bold>deceased person — burden of proof.</bold> Judgment creditors of claimant had burden of proving probated claim, which was contested by administrator, to show that claim was just, correct, and owing. <bold>4. Executors and administrators — claims against estate of</bold> <bold>deceased person — evidence insufficient to establish claim was</bold> <bold>just, correct and owing.</bold> Evidence of judgment creditors of claimant was insufficient to sustain burden of proving that probated claim, which was contested by administrator, was just, correct, and owing. Headnotes as approved by Kyle, J.

<bold>1. Workmen's compensation — liability for payment of</bold> <bold>compensation — contractors — subcontractors.</bold> Seller of timber had right to insert in conveyance provisions which would protect timber not sold as well as land, and such provisions did not make buyer a contractor for removal of timber and render it liable for compensation to workman employed by subcontractor. Sec. 6998-04, Code 1942. Headnote as approved by Jones, J.

<bold>1. Motor vehicles — negligence — guests — instructions —</bold> <bold>plaintiff's "guest not at fault" instruction properly</bold> <bold>refused.</bold> Refusal of plaintiff's requested instructions that plaintiff was not contributorily negligent and that if her injuries were due to negligence of both defendant and driver of car in which plaintiff was riding she could recover was proper where no question of contributory negligence or plaintiff's assumption of risk was submitted to the jury. <bold>2. Motor vehicles — negligence — guests — instructions —</bold> <bold>negligence not imputed to guest — instructions properly</bold> <bold>presented plaintiff's theory of case.</bold> Instruction that if plaintiff was an invited guest in automobile of host and she had no control of the automobile or driver the negligence of the driver could not be imputed to the plaintiff was sufficient along with others given for the plaintiff to present properly the plaintiff's theory of the case. <bold>3. Instructions — argumentative — properly refused.</bold> Instruction which was argumentative in nature was properly refused even though it may have embodied a correct statement of law.<page_number>Page 64</page_number> <bold>4. Damages — award for "whiplash injury" not inadequate.</bold> $1,800 for "whiplash injury" sustained by plaintiff in an automobile accident was not inadequate. Headnotes as approved by Kyle, J.

<bold>1. Habeas corpus — child custody — paternal grandparents —</bold> <bold>persons standing in loco parentis — custodial provisions of</bold> <bold>divorce decree not binding on respondents not parties to that</bold> <bold>proceeding.</bold> Decree in divorce proceeding denying divorce and giving temporary custody of children to paternal grandparents was not binding upon persons in loco parentis to one of the children where neither such persons nor grandparents were parties to divorce proceeding and child was not within jurisdiction of divorce court. <bold>2. Appeal — evidence — after sustaining objections to evidence</bold> <bold>tendered on merits, reviewing court would assume that tendered</bold> <bold>proof was correct.</bold> Upon review of decree entered after sustaining objections to evidence tendered with respect to merits, Supreme Court would assume that tender of proof was correct. <bold>3. Parent and child — "in loco parentis" — evidence established</bold> <bold>relationship.</bold> Where mother of child and father were separated at time of birth, mother at birth placed child with couple for custody and adoption, father had abandoned child, and child remained in couple's home and steps intended to lead to formal adoption were taken, the couple were persons in loco parentis to child. <bold>4. Parent and child — "in loco parentis" — term defined —</bold> <bold>relationship — rights, duties and liabilities.</bold> Term "in loco parentis" means "in the place of a parent"; person in loco parentis is one who has assumed status and obligations of parent without formal adoption; rights, duties and liabilities of one standing in loco parentis are same as those of natural parents and whether relationship exists is matter of intention and of fact to be deduced from circumstances. <bold>5. Parent and child — "in loco parentis" — person standing in</bold> <bold>relationship entitled to custody and control of child.</bold> Person standing in loco parentis is entitled to custody of child as against third persons. <bold>6. Habeas corpus — child custody — parties "in loco parentis"</bold> <bold>not required to show change in circumstances subsequent to</bold> <bold>custodial decree in divorce proceedings to which they were not</bold> <bold>parties.</bold> Where rights of respondents, in habeas corpus proceeding, as persons in loco parentis accrued prior to divorce decree denying<page_number>Page 76</page_number> divorce and awarding temporary custody to paternal grandparents, neither respondents nor grandparents were parties to divorce proceedings, and child at time of divorce proceeding was not within jurisdiction of divorce court, it was not necessary for respondents, to retain custody, to show changed circumstances subsequent to decree. Headnotes as approved by Ethridge, J.

<bold>1. Wills — holographic — declarations of testator as to</bold> <bold>execution of will erroneously excluded.</bold> Exclusion of testimony in holographic will contest that deceased prior to his death told witnesses that he had executed will and that it was in his billfold was error, where contestants contended that will allegedly found in billfold of deceased after his death was not in his handwriting. <bold>2. Wills — holographic — evidence which tends to prove or</bold> <bold>disprove existence of contested holographic will admissible.</bold> Any evidence which tends to prove or disprove existence of contested holographic will should be admitted, where validity of will is contested on ground that it is not written in genuine handwriting of deceased. <bold>3. Wills — holographic — contest — instructions — burden of</bold> <bold>proof — instruction reversibly erroneous.</bold> Instruction in will contest that if jury found that it was uncertain and doubtful in their minds whether deceased wrote and signed alleged holographic will, then it was jury's duty to find for contestants was erroneous because it imposed on proponent burden of proof far greater than that which the law imposes, and giving of such instruction was reversible error. <bold>4. Wills — holographic — contest — instructions — properly</bold> <bold>refused where subject matter covered by other instructions.</bold> Refusal to give requested instructions in will contest was not error, where subject matter of requested instructions had been fully covered by instructions already given. <bold>5. Wills — holographic — contest — handwriting — verdict for</bold> <bold>contestants against overwhelming weight of the evidence.</bold> Verdict for contestants in will contest, on ground that alleged holographic will was not in genuine handwriting of deceased, was against overwhelming weight of evidence.<page_number>Page 84</page_number> <bold>6. Evidence — opinion evidence — handwriting expert — testimony</bold> <bold>given weight according to reasons adduced in support of it.</bold> Testimony of handwriting expert in will contest was required to be given weight according to reasons which he adduced in support of it. <bold>7. Evidence — handwriting — dissimilarities in different</bold> <bold>specimens of handwriting of same person executed at different</bold> <bold>times.</bold> It is common knowledge that dissimilarities may be found in different specimens of handwriting of same person executed at different times and under different circumstances. <bold>8. Wills — holographic — handwriting — dissimilarities alone</bold> <bold>insufficient to discredit will when proof is substantial that</bold> <bold>will is genuine.</bold> Dissimilarities between some characters of holographic will and those of usual handwriting of deceased are not alone sufficient to discredit will, when it is otherwise above suspicion and there is substantial proof that it is genuine. Headnotes as approved by Kyle, J.

<bold>1. Workmen's compensation — purpose of Act.</bold> One purpose of Workmen's Compensation Act is to relieve society of burden of supporting children who have been left without support because of death of wage earners in industrial accidents and benefits of Act are not limited to children begotten in marriage. Sec. 6998-02(12), Code 1942. <bold>2. Workmen's compensation — dependents — children of mistress of</bold> <bold>employee.</bold> Children of mistress of employee killed in industrial accident were entitled to workmen's compensation, where deceased had supported them, even though children had living parents. Sec. 6998-02(12), Code 1942. <bold>3. Workmen's compensation — dependents — when wife deemed to be</bold> <bold>"living with husband".</bold> Wife is deemed to be "living with husband" within Workmen's Compensation Act unless there has been actual severance of marital relations so deliberate that it is obvious that wife no longer looks to husband for support. Sec. 6998-02(14), Code 1942. <bold>4. Workmen's compensation — dependents — widow — reconciliation</bold> <bold>after suit for divorce filed.</bold> Evidence sustained finding of Workmen's Compensation Commission that there had been reconciliation between wife and deceased industrial worker after suit for divorce had been filed. Sec. 6998-02(14), Code 1942. <bold>5. Workmen's compensation — dependents — widow — reconciliation</bold> <bold>after suit for divorce filed.</bold> Wife who was reconciled to husband after suit for divorce had been filed was "widow" at time of husband's death within Workmen's Compensation Law. Sec. 6998-02(14). <bold>6. Workmen's compensation — attorneys' fees.</bold> Attorney for children of mistress of deceased worker and attorney for deceased's widow were entitled to allowance of 33 1/3 percent attorneys' fees in workmen's compensation proceedings in which children and widow were awarded benefits. Sec. 6998-02(12), (14), Code 1942. Headnotes as approved by Rodgers, J.<page_number>Page 521</page_number>

<bold>1. Workmen's compensation — hernia — additional disability</bold> <bold>growing out of specific injury — burden of proof.</bold> Compensation claimant has burden to show that his suffering and disability from injury to the genitofemoral nerve was an additional disability to his hernia injury and that it spread to other parts of the body and produced a greater<page_number>Page 528</page_number> and more prolonged incapacity than hernia injury. Sec. 6998-12, Code 1942. <bold>2. Workmen's compensation — hernia — motion of employer to limit</bold> <bold>employee's recovery sufficiently defined issue to confine</bold> <bold>award to hernia injury.</bold> Motion of employer and carrier asking attorney-referee to limit employee's recovery, claiming in addition to hernia injury, an injury to the genitofemoral nerve, to the benefits set out under the hernia statute sufficiently defined the issue to confine the award to the hernia injury. Sec. 6998-12, Code 1942. <bold>3. Workmen's compensation — disability incident to or</bold> <bold>resulting from specific injury for which act makes specific</bold> <bold>allowance.</bold> Where an employee has received a specific injury which spreads to other parts of the body and produces a greater or more prolonged incapacity than that naturally resulting from specific injury, or injury causes an abnormal incapacity with respect to injured member, employee is not limited to a recovery of special allowance provided for in case of injury to a specific member, but may recover for compensation as in case of disability. <bold>4. Workmen's compensation — right to award — based upon</bold> <bold>workman's earning capacity.</bold> Right to a compensation award is based upon the loss of the workman's earning capacity as a result of loss of the use of members of the body. <bold>5. Workmen's compensation — multiple injuries resulting from</bold> <bold>same accident — results of a single trauma.</bold> An employee may sustain multiple injuries in one accident and various parts of the body may be affected as the result of a single trauma. <bold>6. Workmen's compensation — existence and extent of disability</bold> <bold>or incapacity ordinarily a question of fact.</bold> Existence of disability or incapacity is ordinarily a question of fact in compensation cases to be establish by evidence and cause of an injury or disablement and extent thereof ordinarily involves questions of fact to be established by proof. <bold>7. Workmen's compensation — findings of Commission allowing or</bold> <bold>denying claim must be supported by substantial evidence.</bold> Findings of fact by the Workmen's Compensation Commission, either in allowing or denying compensation claim must be supported by substantial evidence.<page_number>Page 529</page_number> <bold>8. Workmen's compensation — Commission should make findings of</bold> <bold>fact on which to base an award or reject a claim.</bold> Workmen's Compensation Commission should make findings of fact on which to base an award or reject a claim. <bold>9. Workmen's compensation — Commission, a fact finding agency —</bold> <bold>when Supreme Court will affirm findings.</bold> The Workmen's Compensation Commission is a fact finding agency and where there is substantial evidence to support its finding as to the facts, the Supreme Court will affirm its findings. Secs. 6998-24, 6998-28, Code 1942. <bold>10. Workmen's compensation — failure of Commission to submit</bold> <bold>finding of fact in its order, not fatal.</bold> Failure of the Workmen's Compensation Commission to submit a finding of fact in its order is not fatal to the validity thereof. <bold>11. Workmen's compensation — pain alone not compensable.</bold> Pain alone is not compensable. <bold>12. Workmen's compensation — hernia — evidence insufficient to</bold> <bold>justify award for additional disability to genitofemoral nerve</bold> <bold>as result of a single trauma.</bold> Evidence was insufficient to justify compensation award on the ground that the trauma that caused the claimant's rupture and hernia also injured his genitofemoral nerve resulting in his impotency, rendering him temporarily totally disabled to do any work because of the pain generated by the injured nerve. <bold>13. Workmen's compensation — Commission's order — right result —</bold> <bold>wrong conclusion.</bold> Where the order of the Compensation Commission reached the right result, an order of the Circuit Court overruling the order of the Commission would be reversed. <center> ON MOTION TO DISMISS CROSS-APPEAL</center> June 5, 1961 130 So.2d 867 <bold>14. Appeal — cross-appeals — rule as to time of filing</bold> <bold>assignment of errors not applicable.</bold> The rule that assignment of errors should be filed by the appellant at least 30 days before the case is set for hearing does not apply to cross-appeals. Rule 6, Supreme Court Rules; Sec. 753, Code 1942.<page_number>Page 530</page_number> <bold>15. Appeal — cross-appeals — perfected by filing</bold> <bold>cross-assignment of errors.</bold> A cross-appeal is perfected by filing cross-assignment of errors. <bold>16. Appeals — cross-appeals — time for filing cross-assignment</bold> <bold>of errors.</bold> Since the custom had prevailed in the Supreme Court of allowing cross-assignments of error to be filed at the time appellee's brief is due, until a rule is adopted regulating time for filing the cross-assignments, the Court will continue approval of the practice. Rule 6, Supreme Court Rules; Sec. 753, Code 1942. <bold>17. Workmen's compensation — cross-appeals — motion to dismiss</bold> <bold>cross-appeal overruled.</bold> In compensation proceedings, motion to dismiss cross-appeal on the ground that it was not taken within the statutory period of 90 days must be overruled. Rule 6, Supreme Court Rules; Sec. 753, Code 1942. Headnotes as approved by Rodgers, J.

<bold>1. Criminal law — coram nobis — application for permission to</bold> <bold>file, sufficient to show probable cause for issuance of writ.</bold> Application for permission to file in Circuit Court petition for writ of error coram nobis was sufficient to show probable cause for issuance of writ.<page_number>Page 594</page_number> <bold>2. Criminal law — coram nobis — after affirmance on appeal of</bold> <bold>conviction — policy of Supreme Court on filing of</bold> <bold>application.</bold> When application for permission to file in Circuit Court petition for writ of error coram nobis is filed in Supreme Court, its policy is not to hear oral testimony on disputed issues of fact although it could do so, and Supreme Court does not decide whether application and State's answer entitled applicant to issuance of writ as matter of law. Sec. 1992.5, Code 1942. Headnotes as approved by Gillespie, J.

<bold>1. Instructions — must be based upon evidence.</bold> Giving of instruction that jurors should return verdict for motorist if she drove cautiously and pedestrian suddenly and without warning ran from behind parked vehicle directly into her path and was struck was error, where there was some evidence that pedestrian ran across street but no evidence that she ran from behind parked vehicle. <bold>2. Motor vehicles — lookout — control — duty of motorist.</bold> Driver must keep automobile constantly under control and continue on the alert for pedestrians and others using highway, and failure to keep proper lookout constitutes negligence. <bold>3. Motor vehicles — motorist presumed to see what he should have</bold> <bold>seen.</bold> A motorist is presumed to see what he should have seen.<page_number>Page 600</page_number> <bold>4. Motor vehicles — duty of motorist having green light towards</bold> <bold>pedestrians using crosswalk.</bold> Fact that motorist had green light at intersection did not relieve her of duty to maintain control of automobile and to keep lookout for pedestrians using crosswalk which she approached. <bold>5. Motor vehicles — evidence — failure to keep proper lookout</bold> <bold>for pedestrian using crosswalk.</bold> Evidence did not support finding that motorist who failed to see pedestrian who had almost crossed street before motorist struck pedestrian had kept proper lookout. <bold>6. Motor vehicles — evidence — failure to drive in a</bold> <bold>careful and lawful manner.</bold> Evidence failed to support finding that automobile which skidded 120 feet after brakes were applied in 25-mile-per-hour zone, beginning 15 feet before crosswalk in which pedestrian was struck, was being driven in careful and lawful manner. Headnotes as approved by Arrington, J.

<bold>1. Workmen's compensation — executive officers — extended</bold> <bold>coverage endorsement — director and president of corporation</bold> <bold>occupied no such employment status as would entitle him to</bold> <bold>compensation benefits.</bold> Claimant who received no remuneration under any express or implied contract of hire for services rendered insured corporation, as director and president thereof, occupied no such employment status as would entitle him to compensation benefits under compensation policy endorsement purporting to extend coverage to executive officers. Secs. 6998-02(4, 11), 6998-40, Code 1942. <bold>2. Workmen's compensation — same — same — where executive</bold> <bold>officer received no remuneration, no basis existed for payment</bold> <bold>of any premiums.</bold> Where executive officers received no remuneration for services to insured corporation, no basis existed for payment of any premiums for coverage under compensation policy purportedly extended by endorsement to such officers. Secs. 6998-02 (4, 11), 6998-40, Code 1942. <bold>3. Workmen's compensation — same — same — compensation insurer</bold> <bold>not estopped in absence of showing that any premiums were paid</bold> <bold>for coverage of executive officer.</bold> Compensation insurer was not estopped under statute from pleading that employment of executive officer of insured corporation was not carried on for pecuniary gain and was not covered under compensation act, in absence of showing that any premiums were paid for coverage of executive officers, none of whom received any remuneration for services to corporation. Sec. 6998-40, Code 1942. <bold>4. Workmen's compensation — same — same — endorsement</bold> <bold>insufficient to bring director and president within protection</bold> <bold>of compensation act.</bold> Endorsement purporting to extend coverage under compensation policy to executive officers of insured corporation was insufficient to bring within protection of compensation act such officers, who received for services to corporation no remuneration under any express or implied contract of hire. Secs. 6998-02(4, 11), 6998-16, 6998-40, Code 1942.<page_number>Page 624</page_number> <bold>5. Workmen's compensation — same — same — express or implied</bold> <bold>contract of hire required to bring executive officer within</bold> <bold>coverage.</bold> Express or implied contract of hire is required to bring executive officers of insured corporation within coverage of compensation act. Secs. 6998-02(4, 11), 6998-16, 6998-40, Code 1942. <bold>6. Workmen's compensation — essence of compensation protection</bold> <bold>is restoration of part of lost wages.</bold> Essence of compensation protection is restoration of part of wages which are assumed to have been lost by reason of disability. Secs. 6998-02(4, 11), 6998-16, Code 1942. <bold>7. Workmen's compensation — workers who neither receive nor</bold> <bold>expect to receive pay for services excluded from definition of</bold> <bold>"employee".</bold> Workers who neither receive nor expect to receive any pay for services are excluded from definition of "employee" under compensation act. Secs. 6998-02(4, 11), 6998-16, Code 1942. <bold>8. Workmen's compensation — employment status — Sec. 6998-16 in</bold> <bold>pari materia with Sec. 6998-40.</bold> On question of employment status under compensation act, Section 6998-16, dealing with determination of wages for compensation purposes, should be read in pari materia with Section 6998-40, providing for extension of coverage under Act to executive officers. Secs. 6998-16, 6998-40, Code 1942. <bold>9. Workmen's compensation — sole basis for determination of</bold> <bold>compensation benefits.</bold> Earnings are sole basis for determination of compensation benefits and must be earned in employment in which claimant was working at time of injury. Secs. 6998-16, 6998-40, Code 1942. <bold>10. Workmen's compensation — executive officers — extended</bold> <bold>coverage endorsement — incidental benefits derived by director</bold> <bold>and president of cooperative gin company as not constituting</bold> <bold>"wage" or similar advantage.</bold> Benefits derived by director and president of cooperative gin company as result of his cotton being ginned at cost and better quality of cotton produced flowed from capital investment and was not "wage" or similar advantage within compensation act definition and afforded no basis for compensation award. Secs. 6998-02(11), 6998-16, 6998-40, Code 1942.<page_number>Page 625</page_number> <bold>11. Workmen's compensation — same — same — only paid executive</bold> <bold>officers, recompensed for services under express or implied</bold> <bold>contract entitled to benefits.</bold> Only paid executive officers, recompensed for services under express or implied contract of hire, would be entitled to benefits under endorsement extending compensation policy coverage to executive officers of insured corporation. Secs. 6998-16, 6998-40, Code 1942. <bold>12. Workmen's compensation — same — same — advantages received</bold> <bold>by executive officer from capital investment as not</bold> <bold>constituting "wages".</bold> Advantages received by executive officer from capital investment are not "wages" within compensation act. Secs. 6998-16, 6998-40, Code 1942. Headnotes as approved by Gilliespie, J.

<bold>1. Appeal — bond — appeal as not prematurely perfected.</bold> Motion of certain defendants to docket and dismiss appeal, as prematurely perfected, because plaintiffs filed bond before final order dismissing cause for plaintiffs' failure to amend or plead further within permitted time would be overruled where judge had announced in previous order granting time to amend or plead further his ruling on pleadings. <bold>2. Municipalities — assault and battery by police officers —</bold> <bold>principle of municipal immunity invoked.</bold> City was not liable for acts of policemen, in performance of their duties as policemen and not in discharge of any corporate function, in course of which they assertedly beat a plaintiff. <bold>3. Pleading — husband and wife — action for personal injuries to</bold> <bold>husband and action for loss of consortium to wife not subject</bold> <bold>to joint action.</bold><page_number>Page 855</page_number> Declaration pleading cause for personal injuries to husband and cause for loss of consortium to wife pleaded two distinct and separate causes of action, but declaration being bad as to form, leave to amend by dropping consortium cause was granted. Headnotes as revised by Jones, J.