Volume 249 — Mississippi Reports

<bold>1. Workmen's compensation — penalties — when decision of Supreme</bold> <bold>Court becomes final.</bold> A decision of the Supreme Court becomes final upon passage of time on which a suggestion of error might be filed, or in the event a suggestion of error is filed, which is not sustained, the decision becomes final upon its being overruled, and an employer therefore became liable for twenty percent penalty in addition to an award where it failed to pay an award within fourteen days after decision of the Court, and date of issuance of mandate was immaterial in computing such fourteen-day period. Sec. 6998-19(e, f), Code 1942. <bold>2. Workmen's compensation — penalties — not applicable.</bold> Ten percent penalty for late payment of compensation provided for by the Act is applicable to compensation payments without an award, but was not applicable to payment of compensation under an award of the attorney-referee. Sec. 6998-19(e), Code 1942. Headnotes as revised by Patterson, J.

<bold>1. Bills and notes — possession, prima facie evidence of</bold> <bold>ownership.</bold> Possession of note by payee or a subsequent endorser is prima facie evidence, notwithstanding subsequent endorsers thereon, that payee or endorser is lawful owner and has reacquired legal title. Sec. 89, Code 1942. <bold>2. Bills and notes — possession, prima facie evidence of</bold> <bold>ownership — striking endorsement.</bold> Payee of decedent's notes had prima facie right in notes which were part of claim against decedent's estate, even though payee had endorsed notes in blank and there were subsequent restrictive endorsements by others, where payee had reacquired possession of notes. Secs. 89, 568, Code 1942.<page_number>Page 62</page_number> <bold>3. Estates of decedents — claims against — sufficiency of</bold> <bold>presentation.</bold> Legislative intent must be considered in light of realities of probate practice in determining sufficiency of presentation of claims against decedent's estate. <bold>4. Estates of decedents — claims against — no fixed form of</bold> <bold>claim ordinarily required.</bold> As to claims which must be registered against decedent's estate within six months after first publication of notice to creditors, no fixed form of claim is ordinarily required, and the technical accuracy and certainty of description essential in pleading is not necessary. <bold>5. Estates of decedents — claims against — what to contain.</bold> Statement of claim against decedent's estate must give notice of existence of claim, must distinguish claim with reasonable certainty from all other similar claims, and must give information concerning nature and amount of demand so that decedent's representative can act intelligently in providing for payment or rejection of claim. <bold>6. Estates of decedents — claims against — substantial</bold> <bold>compliance with statutes sufficient.</bold> Statutes relating to claims against decedent's estates need not be strictly complied with, but a substantial compliance is sufficient. Secs. 566, 568, Code 1942. <bold>7. Estates of decedents — claims against — sufficiency of claim</bold> <bold>— modifying former decisions.</bold> Claim against decedent's estate on open account was sufficient to preclude bar of six-month limitation provision, where claim for lenses, frames, and other optical merchandise sold decedent revealed credits and debits, alleged the true balance, and had attached to it pages from accounts receivable records; modifying Rice Stix Dry Goods Co. v. Monsour, <cross_reference>178 Miss. 621</cross_reference>, <cross_reference>174 So. 63</cross_reference>; United States Fidelity Guaranty Co. v. Blanchard, <cross_reference>182 Miss. 179</cross_reference>, <cross_reference>181 So. 134</cross_reference>; Wilson v. Yandell, <cross_reference>174 Miss. 713</cross_reference>, <cross_reference>165 So. 430</cross_reference>. Secs. 566, 568, 569, Code 1942. <bold>8. Pleading — main purposes of pleading and procedure.</bold> Main purposes of pleading and procedure are to obtain a clear definition of issues between parties and to reveal all facts so that a fair and equitable decision of controversy can be obtained.<page_number>Page 63</page_number> <bold>9. Estates of decedents — claims against — substantial</bold> <bold>compliance prior to expiration of limitation period.</bold> Where claimant against decedent's estate presents in good faith a claim which is in substantial compliance with requirements for such claims, it is not equitable to permit deceased's representative to wait until six months have expired, and then to assert that the itemized account is not technically sufficient so that an otherwise legitimate debt of estate will be barred. Secs. 566, 568, Code 1942. <bold>10. Estates of decedents — claims against — amendment after</bold> <bold>expiration of limitation period — when not allowed.</bold> Amendment of claim against decedent's estate after running of period for filing of claims is not allowable if amendment increases amount of claim, sets up a new cause of action, and materially changes basis for the claim. <bold>11. Estates of decedents — claims against — amendment after</bold> <bold>expiration of limitation period — when permissible.</bold> Amendment of claim against decedent's estate after running of period for filing of claims is permissible if amendment does not amount to a new claim, but is merely an improvement or perfection of one presented in time, but lacking elements necessary to express its full merits; modifying Rice Stix Dry Goods Co. v. Monsour, <cross_reference>178 Miss. 621</cross_reference>, <cross_reference>174 So. 63</cross_reference>; United States Fidelity Guaranty Co. v. Blanchard, <cross_reference>182 Miss. 179</cross_reference>, <cross_reference>181 So. 134</cross_reference>; Wilson v. Yandell, <cross_reference>174 Miss. 713</cross_reference>, <cross_reference>165 So. 430</cross_reference>. Secs. 566, 568, Code 1942. <bold>12. Estates of decedents — claims against — duty on personal</bold> <bold>representative to require creditor to make statement of claim</bold> <bold>more definite and certain.</bold> Decedent's personal representative must require creditor making claim against estate to make more definite and certain a statement of claim which does not sufficiently advise representative of its essential details and nature, and personal representative may seek by motion to make more definite and certain or to obtain a bill of particulars. Secs. 566, 568, Code 1942. <bold>13. Estates of decedents — claims against — contest — claim</bold> <bold>meeting minimum requirements — evidence.</bold> Both claimant and decedent's personal representative have right, on contest of claim asserted against estate, to introduce evidence to support their positions, where claim meets minimum requirements of claim against decedent's estate. Secs. 566, 568, 575, Code 1942.<page_number>Page 64</page_number> <bold>14. Estates of decedents — claims against — invoices admissible</bold> <bold>to verify details of claims.</bold> Invoices which related to optical merchandise sold to decedent by creditor, which detailed basis for large number of charges and asserted debits of estate, and which were introduced in evidence in proceeding on claim against estate, were properly offered and admitted in evidence and should have been considered on issue of whether they adequately verified details of claim. Secs. 566, 568, 575, Code 1942. <bold>15. Estates of decedents — claims against — open account —</bold> <bold>burden of proof.</bold> In proceeding on claim against decedent's estate, claimant had burden of proving correctness of beginning sum for itemized account, and of verifying it either from that date, or from some other prior date at which there was a balance of account or a stated account. <bold>16. Witnesses — dead man's statute — testimony against</bold> <bold>decedent's estate.</bold> President of decedent's corporate creditor was not precluded by dead man's statute from testifying to establish corporation's claim against decedent's estate. Sec. 1690, Code 1942. Headnotes as approved by Ethridge, J.

<bold>1. Foreign corporations — "doing business" — process statute.</bold> Service of original declaration process upon Secretary of State was authorized where corporate defendant was doing business in the state. Sec. 1437, Code 1942. <bold>2. Appeal — foreign corporations — "doing business" — presumed</bold> <bold>where no record of testimony at special hearing.</bold> It would be presumed that evidence supported judgment that corporate defendant was doing business within the state and was thus subject to substituted service of process on Secretary of State where no record was made of testimony at a special hearing had to determine sufficiency of such service of process. Sec. 1437, Code 1942. <bold>3. Foreign corporations — "doing business" — determined from</bold> <bold>facts of each particular case.</bold> Whether a corporation is doing business within the state, and thus subject to substituted service of process, must be determined from the facts of each case. Sec. 1437, Code 1942. <bold>4. Foreign corporations — "doing business" — jurisdiction</bold> <bold>acquired through substituted service of process — entry of</bold> <bold>appearance in response to process.</bold> Jurisdiction was acquired over corporate defendant through substituted service of process on defendant which was doing<page_number>Page 302</page_number> business in the state, and, in any event, jurisdiction was acquired as a result of corporate defendant's entry of its appearance in response to process in attachment and in answering the amended original declaration which sought damages on open account as well as damages for breach of contract. Sec. 1437, Code 1942. <bold>5. Actions — open account and breach of contract — not a</bold> <bold>misjoinder, where duties owed arose directly from contract.</bold> A cause of action for damages on an open account, and a cause of action for damages for breach of oral contract did not constitute a misjoinder of actions on theory action for breach was one arising out of tort, where duties owed arose directly from the contract. <bold>6. Contracts — where no time limitation specified — subject to</bold> <bold>termination by either party at will, by giving reasonable</bold> <bold>notice.</bold> An oral contract entered into between a manufacturer and a dealer for the handling of manufacturer's rebuilt motors was subject to termination by either party at will by giving reasonable notice, where no time limitation was fixed in the contract. Sec. 264(d), Code 1942. <bold>7. Frauds, statute of — contract capable of being performed</bold> <bold>within fifteen months — not violative of statute.</bold> An oral contract, between manufacturer of rebuilt motors and a dealer, which was indefinite as to time and was capable of being performed within fifteen months was not within the statute of frauds, even though dealer rented a place of business for a period of three years after landlord refused to lease for a shorter period of time, and even though the parties hoped to have the agreement continue for an indefinite time. Sec. 264(d), Code 1942. <bold>8. Appeal — evidence — best evidence rule — alleged violation</bold> <bold>not preserved for review.</bold> Question of whether Court erred in permitting testimony to be introduced in violation of best evidence rule was not preserved for review, where such objection was not made in the trial court. <bold>9. Appeal — instructions — error not preserved for review —</bold> <bold>error, if any, cured by other instructions.</bold> Error, if any, in giving two unnumbered instructions was not preserved for review where not made a part of record; and, even if instructions could be considered, errors, if any<page_number>Page 303</page_number> therein, would be considered cured by other instructions submitted, in view of fact record did not properly present all the instructions. <bold>10. Account, action on — breach of contract — evidence,</bold> <bold>sustained verdict for plaintiff.</bold> Evidence, in action on open account and for breach of contract, sustained verdict for plaintiff. Headnotes as approved by Patterson, J.

<bold>1. Criminal law — evidence.</bold> Refusal to allow defendant in homicide case to prove that after woman had shot victim through fleshy part of arm, prior to defendant subsequently fatally shooting victim, defendant had sought aid of law enforcement officers was not prejudicial, where court did allow enough testimony to get to jury to show that defendant had gone to officer and reported shooting. <bold>2. Homicide — manslaughter or self-defense — jury question.</bold> Whether victim was still being held by his friend at time he was shot by defendant or whether, as defendant contended, victim had broken loose and was charging defendant face to face was jury question. <bold>3. Criminal law — credibility of evidence — for jury.</bold> It is function of jury to pass upon credibility of evidence. <bold>4. Criminal law — evidence — strength or weakness of testimony</bold> <bold>not measured by number of witnesses.</bold> <bold>5. Criminal law — jury may accept or reject, in whole or in</bold> <bold>part, testimony of witnesses.</bold> In criminal prosecution, jury may accept testimony of some witnesses and reject that of others, it may accept in part and reject in part testimony of any witness, or it may believe part of evidence on behalf of state and part of that for accused, credibility of such witnesses is not for reviewing court.<page_number>Page 353</page_number> <bold>6. Homicide — self-defense — justification — instruction</bold> <bold>correctly stated law.</bold> Instruction that, in order to justify a homicide on plea of self-defense, danger must be such as to lead person reasonably to believe that killing was necessary to prevent deceased from killing slayer, or doing him great bodily harm, correctly stated law. <bold>7. Criminal law — improper argument of counsel — objection —</bold> <bold>mistrial.</bold> Only way to reach improper argument of counsel is by objection at the time, and motion for mistrial. <bold>8. Criminal law — improper argument of district attorney — no</bold> <bold>objection at time, or motion for mistrial.</bold> Denial of motion for new trial on ground of district attorney's argument to jury was not improper where no objection was made at time, or by motion for mistrial. <bold>9. Manslaughter — sentence — not cruel or unusual punishment.</bold> Twenty-year sentence for manslaughter was not cruel or unusual punishment. <bold>10. Criminal law — sentence — term of, discretionary with trial</bold> <bold>court.</bold> Term of sentence, if within limits authorized by statute, is in discretion of trial court. Headnotes as approved by McElroy, J.

<bold>1. Trial — witnesses — leading questions — where not objected</bold> <bold>to.</bold> Court which had ruled at beginning that witness who was employed by defendant and was not adverse to plaintiff had duty to allow plaintiff's leading questions of witness without objections. <bold>2. Witnesses — adverse witness — determination, discretionary.</bold> Determination whether witness who was manager of plant of defendant, and knew all facts about it, was adverse to plaintiff was discretionary. <bold>3. Witnesses — adverse witness — cross-examination as, not</bold> <bold>error.</bold> Permitting plaintiff to examine witness who had been manager of defendant's plant since plant opened, and knew all facts about it, and who at no time demonstrated any monetary interest in outcome of suit as an adverse witness was not error. <bold>4. Nuisance — damage to growing cotton crop by chemicals</bold> <bold>escaping from chemical plant — evidence.</bold> Evidence that damage done by chemicals or herbicides to vegetation generally in all areas in and around chemical plant to as far as half a mile away was admissible on behalf of cotton farm owner claiming chemical damage to cotton crop in case wherein an issue was whether chemicals were escaping from plant in sufficient quantities to damage plant life. <bold>5. Evidence — collateral fact — when admissible.</bold> Evidence is admissible to show collateral fact if that fact tends to prove or disprove matter of fact made an issue in the case. <bold>6. Nuisance — damage to growing cotton crop by chemicals</bold> <bold>escaping from chemical plant — jury questions.</bold> Evidence raised jury question whether damage to cotton plants on farm near chemical plant was caused by the plant which emitted three chemicals, any one of which would damage or kill cotton. <bold>7. Nuisance — same — measure of damages.</bold> Measure of damages for impairment of growing crops by emission of poisonous fumes and chemicals was difference in yield and price of crops with and without presence of fumes and chemicals.<page_number>Page 451</page_number> <bold>8. Nuisance — same — amount of damages — jury question.</bold> Evidence raised jury question as to amount of damages suffered by owner of farm bearing cotton crop which was injured by emission of fumes and chemicals from nearby chemical plant. Headnotes as approved by McElroy, J.

<bold>1. Guardian and ward — option to sell insane ward's real estate</bold> <bold>— Chancery Court without power to authorize.</bold> Chancery Court had no authority to authorize guardian of non compos mentis to grant option to sell ward's real estate (along with a surface lease), with purchase price to be determined by privately appointed appraisers, and with all interim rentals paid by lessee-optionee to be deducted from<page_number>Page 473</page_number> purchase price at time of exercise of option. Secs. 414, 416, 419, 439, 1389, Code 1942. <bold>2. Guardian and ward — sale and lease of ward's real estate —</bold> <bold>requirements and limitations of statute must be complied</bold> <bold>with.</bold> Sales and leases under statutes authorizing guardian to sell or lease real estate of their wards must be for purposes and situations intended by or specified in statute; they must comply with requirements and limitations of statute; its provisions should authorize with reasonable clarity the particular type of contract or conveyance. Secs. 414, 416, 419, 439, 1389, Code 1942. <bold>3. Guardian and ward — sale of ward's property — price must be</bold> <bold>fair and reasonable — duty of Chancery Court.</bold> The Chancery Court has duty to see that price at time of guardian's sale of ward's property is fair and reasonable; this duty cannot be delegated to appraisers. <bold>4. Chancery Court — estate of incompetent — duty to preserve.</bold> Chancery Courts must be free to control estates of incompetents in such manner as they deem is advantageous to wards. <bold>5. Specific performance — not a matter of right but of sound</bold> <bold>legal discretion.</bold> Specific performance is not a matter of right, but of sound legal discretion; it will not be employed where contract is legally valid but affected with unfairness and impropriety. <bold>6. Chancery Court — executory contract for sale of incompetent's</bold> <bold>real estate — Court reluctant to authorize.</bold> Courts are reluctant to authorize guardian of incompetent to make an executory contract for sale of incompetent's real estate. Headnotes as approved by Ethridge, J.

<bold>1. Trusts — resulting trust — evidence — failed to establish.</bold> Evidence failed to establish that defendants' ancestor held record title to 340-acre farm in trust for his brothers. <bold>2. Trusts — resulting trust — evidence — to establish in</bold> <bold>opposition to written deed.</bold> Generally, when person undertakes by verbal testimony to show claim to real estate growing out of alleged resulting trust, in opposition to written deed, he must establish trust by clear, unequivocal, cogent and convincing evidence. <bold>3. Trusts — resulting trust — evidence — verbal testimony to</bold> <bold>establish received with caution.</bold> Verbal testimony in support of claim to real estate growing out of alleged resulting trust in opposition to written deed should be received with caution, especially where there has been great delay in asserting claim. <bold>4. Evidence — admissions — declarations against interest of</bold> <bold>deceased.</bold> Declarations against interest of deceased are admissible when relevant to matter of inquiry when it appears that declarant is dead, that declaration was against his pecuniary interest, that it was in fact in relation to matter of which he was personally cognizant, and that declarant had no possible motive to falsify fact declared. <bold>5. Evidence — conclusions and opinion of witness as to what has</bold> <bold>been said.</bold> Conclusions and opinions of witness as to what has been said are not ordinarily admissible, either as admissions or statements against interest.<page_number>Page 562</page_number> <bold>6. Evidence — admissions — declarations against interest of</bold> <bold>deceased.</bold> Refusal to permit witnesses for plaintiffs claiming interest in farm growing out of alleged resulting trust to testify that alleged trustee admitted, prior to his death, that his brothers each had interest in farm and that he intended to divide property was not harmful error, in view of form of statements and fact that most of admissions were actually introduced in evidence. <bold>7. Trusts — evidence — declarations and admissions to prove or</bold> <bold>disprove trust, admissible.</bold> Although declarations and admissions are admissible to prove or disprove trust, such evidence is subject to same rules of evidence as is true with reference to admissibility of declarations and admissions generally. <bold>8. Evidence — admissions — to be competent.</bold> To be competent as admission, statement generally must be one of fact. <bold>9. Evidence — admissions — statement of declarant's opinion or</bold> <bold>conclusion, inadmissible.</bold> Statement of declarant's opinion or conclusion respecting matter in issue is generally considered inadmissible as admission. <bold>10. Appeal — witnesses — dead man's statute — waiver.</bold> Plaintiffs who offered witnesses to prove claim of five brothers against alleged trust estate wrongfully transferred by sixth brother to his children had no standing to object that court erred in permitting children to testify, in defense of their deeds made to them by their deceased father, against estate of deceased brothers. Sec. 1690, Code 1942. <bold>11. Witnesses — dead man's statute — waiver.</bold> Examination of one witness incompetent under dead man's statute operates as waiver of incompetency of adverse witnesses, at least where testimony of adverse witness is offered after examination of first witness and relates to matters testified to by first witness. Sec. 1690, Code 1942. Headnotes as approved by Rodgers, J.

<bold>1. Divorce — decree — security therefor — not an inter vivos</bold> <bold>gift.</bold> There was no inter vivos gift of sum which divorce decree required husband to deposit as security for performance of terms of decree. Sec. 2743, Code 1942. <bold>2. Divorce — decree — security therefor — not immune from</bold> <bold>modification as creating trust.</bold> Divorce decree requiring husband to deposit specified sum to secure performance of terms of decree was not immune from modification as creating trust. Sec. 2743, Code 1942. <bold>3. Divorce — alimony — security therefor — not immune from</bold> <bold>modification as constituting commuted lump sum alimony.</bold> Divorce decree providing for permanent continuing alimony to be paid in fixed amounts at stated intervals in future, and requiring husband to deposit specified sum as security for performance of terms of decree did not constitute an award of alimony commuted to lump sum which could not be changed. Sec. 2743, Code 1942.<page_number>Page 686</page_number> <bold>4. Divorce — decree — security therefor — not immune from</bold> <bold>modification as constituting a property settlement.</bold> Divorce decree requiring husband to deposit specified sum as security for performance of terms of decree did not constitute a property settlement incorporated in divorce decree and not subject to modification or change. Sec. 2743, Code 1942. <bold>5. Divorce — attorney's fees — defending husband's petition for</bold> <bold>modification.</bold> Wife who successfully defended that portion of husband's petition for modification which sought to have child support payments reduced was entitled to an allowance for attorneys' fees; and trial court's refusal to award such fee having necessitated appeal, she would also be allowed fees for services performed on appeal, fixed in amount of one-half of fees to be allowed for services in trial court. Headnotes as approved by Lee, C.J.