Volume 246 — Mississippi Reports

<bold>1. Municipalities — streets and sidewalks — evidence.</bold> Testimony as to defective sidewalk was competent in pedestrian's action against city for injuries sustained when she stepped onto defective water drain cover in street, as testimony was introduced to show why pedestrian chose to walk on street rather than sidewalk in front of her home. <bold>2. Municipalities — streets — duty as to construction and</bold> <bold>maintenance.</bold> In construction and maintenance of streets and other public ways, city is under duty to exercise reasonable care which is care exercised by an ordinary prudent person. <bold>3. Municipalities — streets and sidewalks — care as to.</bold> Municipality is under duty to exercise reasonable and ordinary care to keep public streets and sidewalks in reasonably safe<page_number>Page 24</page_number> condition for travel thereon by those who use them in exercise of ordinary care. <bold>4. Municipalities — streets and sidewalks — doctrine of "trivial</bold> <bold>defect" stated.</bold> Under doctrine of "trivial defect", where defect in sidewalk or street is so trivial that defect could not have been reasonably anticipated to cause injury, question of negligence is not submitted to jury and Court holds, as a matter of law, there was no negligence on part of municipality in permitting it to exist. <bold>5. Municipalities — streets — maintaining defective iron grating</bold> <bold>covering water drain on paved street not a trivial defect.</bold> Defective iron grating covering water drain on paved street was not such a trivial defect as would exempt municipality, as matter of law, from liability on ground that it was not of such magnitude as would likely cause injury. <bold>6. Municipalities — streets — negligence — maintaining defective</bold> <bold>iron grating covering water drain on paved street.</bold> Municipality was not relieved of liability for its negligence in maintaining defective iron grating covering water drain on street because pedestrian had walked out into street instead of walking on sidewalk, where testimony indicated that sidewalk was, as known to municipality, in bad condition, and that persons living in area customarily used paved street for pedestrian travel. <bold>7. Municipalities — streets — pedestrian may assume that</bold> <bold>traveled portion of street is reasonably safe.</bold> Pedestrian has right to presume, in absence of knowledge to contrary, that portion of street customarily traveled is reasonably safe and pedestrian who desires to cross or enter street is not confined to regular crossing. <bold>8. Municipalities — streets — defective water drain cover in</bold> <bold>street — negligence — foreseeability of injury.</bold> Evidence, in pedestrian's action against city for injuries sustained when she stepped onto defective water drain cover in street and her leg became caught in drain, sustained finding against city as to foreseeability of injury, both as to nature of defect and as to likelihood that person would walk into paved street at that point to avoid walking on defective sidewalk.<page_number>Page 25</page_number> <bold>9. Municipalities — streets — defective water drain cover in</bold> <bold>street — notice of defect — jury question.</bold> Municipality's actual or constructive notice of existence of defective drain cover in street presented a question of fact in pedestrian's action against city for injuries sustained when she stepped onto the defective cover. <bold>10. Municipalities — streets — defective water drain cover in</bold> <bold>street — constructive notice — jury question.</bold> Whether or not defect has existed in street for sufficient time to constitute constructive notice to city is a question of fact for determination of jury. Headnotes as approved by Rodgers, J.

<bold>1. Adverse possession — boundary line dispute.</bold> Evidence sustained finding that defendants had acquired title, by adverse possession, to a strip of land lying along the boundary line between properties owned by complainants and defendants, and that complainants were not entitled to have the fence, erected by the defendants, removed from the claimed boundary line. <bold>2. Equity — remanding cause to docket for further proof.</bold> Chancellor, after rendering opinion holding that defendants had acquired title to disputed strip by adverse possession, did not err, when difficulty was encountered by counsel in preparation of a decree designating the portion to which defendants had acquired title by adverse possession, in remanding cause to docket so as to permit defendants to present additional testimony to define specifically area possessed by defendants so that Court could enter a proper decree establishing the boundary line. Headnotes as approved by Kyle, J.

<bold>1. Workmen's compensation — Commission's findings — heart attack</bold> <bold>— disability not work connected.</bold> Finding of Workmen's Compensation Commission that permanent total disability sustained by employee, who suffered a heart attack, was not work connected was supported by substantial evidence. Headnote as approved by McGehee, C.J.

<bold>1. Eminent domain — damages — Chancellor — judge of the weight</bold> <bold>and worth of evidence.</bold> The jury, or the Chancellor, as the case may be, is the judge of the weight and worth of the testimony as to damages done land by the acquisition of private property through eminent domain proceedings. Sec. 4692, Code 1942. <bold>2. Eminent domain — land subject to lease — damages — total</bold> <bold>damages assessed supported by preponderance of evidence.</bold> $6,000 in damages assessed by Chancellor, both as to reversionary interest of the landowner and damages done to the present<page_number>Page 255</page_number> value of the leasehold, was supported by the preponderance of the evidence in proceedings by drainage district to acquire a perpetual easement for flood purposes where the final level of water permanently impounded by a dam would cover .86 of an acre of land. <bold>3. Eminent domain — damages — measure of — before and after</bold> <bold>rule.</bold> When a part of a larger tract of land is taken for public use, the owner should be awarded the difference between the fair market value of the whole tract immediately before the taking, and the fair market value of that remaining immediately after the taking, without considering general benefits or injuries resulting from the use to which the land taken is to be put, that are shared by the general public. <bold>4. Eminent domain — different interests or estates — damages —</bold> <bold>apportionment of compensation.</bold> Where there are different interests or estates in the property acquired by condemnation, the proper course is to ascertain the entire compensation to be awarded as though the property belonged to one person, and then apportion this sum among the different parties according to their respective rights. <bold>5. Eminent domain — land subject to lease — damages — total</bold> <bold>damages to property — apportionment of compensation — rule —</bold> <bold>case in point.</bold> The taking of a portion of demised premises operates as an apportionment of the rent and dissolves the relationship of landlord and tenant pro tanto, and the award of total damages to the property is apportioned between the landlord and the tenant so as to give the landlord the value of his reversion, and rents under the contract, less an abatement for present payment; and the damage to the leasehold is determined by awarding tenant the value of his contract, which includes a reduction in his future rents because of loss of use of a portion of the leased premises, less the rents due under the terms of his contract, plus the abatement earned for the present payment of rent to the landlord. <bold>6. Appeal — judgment on disputed facts will not be disturbed</bold> <bold>unless clearly erroneous.</bold> The judgment of a trial court on disputed facts will not be disturbed on appeal unless clearly erroneous or against the weight of the evidence. Headnotes as approved by Rodgers, J.<page_number>Page 256</page_number>

<bold>1. Pleading — demurrer — declaration construed most strongly</bold> <bold>against pleader.</bold> On demurrer, a declaration is construed most strongly against the pleader and is not to be aided by mere inferences from its averments. <bold>2. Pleading — demurrer — admits only material facts well</bold> <bold>pleaded.</bold> A demurrer admits only material facts that are well pleaded, and does not admit mere recitals of conclusions, either of fact or of law. <bold>3. Contracts — persons against whom contract enforceable.</bold> Generally, an action on a contract cannot be maintained against a person who is not a party to it. <bold>4. Assignments — contracts — successor or assignee not bound</bold> <bold>unless he ratifies or adopts the contract.</bold> A contract containing a provision to the effect that it is binding upon heirs, successors and assigns does not bind the successor or assign of one of the contracting parties unless he ratifies or adopts the contract. <bold>5. Torts — actions — essential elements of a good cause of</bold> <bold>action.</bold> A salesman could establish a good cause of action in tort, against parties to whom his employers leased their plant, for wrongful sale of goods to plaintiff's customers only if he could establish a right in himself with respect to sales to his alleged customers and could show a corresponding or correlative duty owed to him by lessees with respect to that right. <bold>6. Assignments — actions — essential elements of a good cause of</bold> <bold>action lacking — factual situation.</bold> A salesman who entered into a contract to sell roofing products for his employers on a commission basis could not maintain an action against their assignees based on action of assignees in examining books and records of employers without plaintiff's consent, and in making sales as the result of such examination in view of fact contract was not binding on assignees and gave rise to no contractual duty to plaintiff. Headnotes as approved by McElroy, J.<page_number>Page 281</page_number>

<bold>1. Criminal law — corpus delicti — meaning of.</bold> "Corpus delicti" means that a crime has actually been committed, having as a compound fact the existence of a certain act or result forming the basis of the criminal charge, and the existence of criminal agency as the cause of such act or result. <bold>2. Criminal law — corpus delicti — identity of accused, not an</bold> <bold>element of.</bold> Identity of accused is not an element of the corpus delicti. <bold>3. Criminal law — every element of crime charged and the</bold> <bold>criminal agency must be proved beyond a reasonable doubt.</bold> Every element of crime charged and the criminal agency must be proved beyond a reasonable doubt. <bold>4. Criminal law — corpus delicti — extra judicial admissions,</bold> <bold>declarations or confessions not, of themselves, sufficient to</bold> <bold>establish.</bold> Extra judicial admissions, declarations or confessions of accused are not of themselves sufficient to establish the corpus delicti. <bold>5. Criminal law — corpus delicti — proof aliunde the confession</bold> <bold>required to establish.</bold> In order for corpus delicti to be established by evidence aliunde the confession, it is not necessary that proof aliunde show the crime or corpus delicti beyond a reasonable doubt, and if crime is shown by a preponderance of the evidence or by evidence amounting to a probability, a confession will be received.<page_number>Page 443</page_number> <bold>6. Criminal law — corpus delicti — corroborating proof required</bold> <bold>where accused confesses.</bold> Where an accused confesses, corroborative proof of corpus delicti will be held sufficient if it satisfies the mind that it is a real, and not an imaginary, crime for which accused has confessed. <bold>7. Criminal law — quantum of proof required to convict may be</bold> <bold>less where accused confesses.</bold> A jury may find that an accused who has confessed is the guilty party on proof much less than ordinarily essential. <bold>8. Robbery — corpus delicti — proof aliunde, sufficient to</bold> <bold>permit admission of confession.</bold> Evidence, aliunde confession, that a person had been robbed was a sufficient showing of a probability that a real crime had been committed to permit admission of a confession by defendant that he had committed the robbery. <bold>9. Criminal law — a confession may be used to prove beyond a</bold> <bold>reasonable doubt that a real and not an imaginary crime has</bold> <bold>been committed.</bold> <bold>10. Criminal law — an accused criminal agency can be shown by</bold> <bold>the confession alone.</bold> Headnotes as approved by McElroy, J.

<bold>1. Homicide — evidence — shooting intentional, not accidental.</bold> Evidence supported finding that shooting was intentional and not accidental. <bold>2. Criminal law — instructions — defendant's instruction</bold> <bold>purporting to define doctrine of reasonable doubt, properly</bold> <bold>refused.</bold> The refusal to grant defendant's requested instruction purporting to define doctrine of reasonable doubt was not error, where defendant had obtained three other instructions which correctly stated applicable rules of law relating to presumption of innocence and requirement of proof of guilt beyond every reasonable doubt. <bold>3. Criminal law — instructions — principles adequately covered</bold> <bold>by other instructions.</bold> If controlling legal principles are properly stated in charges given, it is not error to refuse others. Headnotes as approved by Kyle, J.

<bold>1. Trial — instructions — duty of plaintiff to have court inform</bold> <bold>jury what is necessary to make out the case stated in</bold> <bold>declaration.</bold> Generally, in civil cases, plaintiff has duty to ask court to inform jury what is necessary to make out case as charged in declaration, and there is no obligation on part of defendant to request instructions setting out plaintiff's case. <bold>2. Malicious prosecution — want of probable cause — instructions</bold> <bold>— when peremptory should be given for defendant — for</bold> <bold>plaintiff.</bold> If facts are not sufficient to prove want of probable cause, trial judge should, on proper application, instruct jury to find for defendant in malicious prosecution action; but if facts show that there was no probable cause for prosecution, peremptory instruction should be given for plaintiff.<page_number>Page 740</page_number> <bold>3. Malicious prosecution — want of probable cause — instructions</bold> <bold>— plaintiff must set out in his instructions facts on which</bold> <bold>jury may determine that there was no probable cause for</bold> <bold>prosecution.</bold> Where facts on which question of probable cause depends are rendered doubtful by evidence in malicious prosecution case, plaintiff must set out in his instructions facts on which jury may determine that there was no probable cause for prosecution. <bold>4. Malicious prosecution — want of probable cause — instructions</bold> <bold>— if instructions leave it to jury to determine, not only</bold> <bold>whether facts alleged by plaintiff are true, but whether, if</bold> <bold>true, they prove want of probable cause, instructions are</bold> <bold>erroneous.</bold> Although definition of probable cause is not essential in malicious prosecution case, if instructions leave it to jury to determine, not only whether facts alleged by plaintiff are true, but whether, if true, they prove want of probable cause, instructions are erroneous in that they leave to jury function of determining question of law. <bold>5. Malicious prosecution — probable cause — before probable</bold> <bold>cause can exist.</bold> Before probable cause can exist, there must be concurrence of honest belief of guilt of person accused, and reasonable grounds for such belief. <bold>6. Malicious prosecution — instructions — in absence of guide</bold> <bold>being given to jury as to what was necessary to make out case</bold> <bold>stated in declaration, case must be reversed.</bold> In absence of guide being given to jury as to what was necessary to make out plaintiff's claim of malicious prosecution, and in view of failure to give jury any standard as to what constituted probable cause, verdict and judgment for plaintiff must be reversed and cause remanded. <bold>7. Malicious prosecution — probable cause — advice of attorney,</bold> <bold>when available as defense.</bold> Defendant may show that he consulted attorney as part of defense to charge of lack of probable cause and malice in malicious prosecution action and, if it is shown that defendant divulged true, full and fair statement of facts to his attorney, and that prosecution was instituted in good faith, on advice of attorney, there is complete defense to charge of malicious prosecution.<page_number>Page 741</page_number> <bold>8. Malicious prosecution — evidence — affidavits made by</bold> <bold>defendant against members of plaintiff's family, admissible.</bold> Admission of affidavits made by defendant sued for malicious prosecution against father and brothers of plaintiff at time plaintiff was being prosecuted by defendant was harmless error, if error at all, where, even if affidavits had not been introduced, jury would have known about them and the prosecutions from defendant's testimony. <bold>9. Malicious prosecution — evidence — malice — affidavits made</bold> <bold>by defendant against members of plaintiff's family,</bold> <bold>admissible.</bold> Affidavits made by defendant sued for malicious prosecution against father and brothers of plaintiff at time plaintiff was being prosecuted by defendant were admissible as circumstance from which jury could infer malice. <bold>10. Malicious prosecution — malice — evidence — proof of</bold> <bold>ulterior motive for prosecution.</bold> For purpose of establishing malice, plaintiff in malicious prosecution action may introduce evidence of defendant's conduct and declarations, situation of parties, nature and extent of injurious means resorted to, and zeal and activity of defendant in pushing prosecution against plaintiff. Headnotes as approved by Rodgers, J.

<bold>1. Husband and wife — separate maintenance — fault of wife —</bold> <bold>Winkler rule not applicable.</bold> The rule permitting, in some instances, an award of alimony to wife even though she may have been at fault is applied only in divorce cases, and not in separate maintenance cases. Sec. 2743, Code 1942. <bold>2. Husband and wife — separate maintenance — burden of proof.</bold> Wife suing for separate maintenance had burden to show that her separation from her husband was caused by his habitual cruel and inhuman treatment of her, or that he deserted her. <bold>3. Husband and wife — separate maintenance — fault of wife — as</bold> <bold>a defense.</bold> A suit for separate maintenance is one of equitable nature, and fault of wife equal to or greater than that of husband,<page_number>Page 799</page_number> which materially contributes to separation of spouses, is good defense to suit. <bold>4. Husband and wife — separate maintenance — fault of wife —</bold> <bold>evidence — wife not entitled to relief.</bold> Wife was not entitled to separate maintenance where misconduct and fault on wife's part materially contributed to her separation from husband, her fault was equal to or greater than that of husband, husband did not desert wife, and he was not habitually cruel and did not inhumanly treat wife. Headnotes as approved by Ethridge, J.