Volume 252 — Mississippi Reports

<bold>1. Workmen's compensation — spontaneous pneumothorax — work</bold> <bold>connected.</bold> Medical evidence supported Workmen's Compensation Commission's finding that claimant's onset of spontaneous pneumothorax occurred as result of physical strain caused by his coughing, which in turn was caused by plastic dust and chemical fumes inhaled at his place of employment. <bold>2. Workmen's compensation — medical testimony — claimant not</bold> <bold>permanently and totally disabled from emphysema.</bold> Medical testimony supported determination by Workmen's Compensation Commission that plaintiff's emphysema did not permanently and totally disable him. Headnotes as approved by Rodgers, J.

<bold>1. New trial — absence of motion for, effect of.</bold> Where defendant did not file motion for new trial on ground that verdict was contrary to overwhelming weight of evidence, Supreme Court had no trial court ruling for review on defendant's point that verdict was contrary to overwhelming weight of credible evidence, and showed bias and prejudice on jury's part. <bold>2. Negligence — contributory negligence — as a bar to recovery —</bold> <bold>instruction erroneous.</bold> Under statute providing that contributory negligence should not bar recovery but that damages should be diminished in proportion to same, instruction that jury should return verdict for defendant if it found that death of plaintiff's decedent was proximately caused by his negligence, was erroneous. Secs. 1453, 1454, Code 1942. <bold>3. Negligence — contributory negligence — no bar to recovery —</bold> <bold>jury question.</bold> Contributory negligence on part of person injured is not bar to recovery if there is negligence proved on part of defendant, but all questions of contributory negligence or comparative negligence should be submitted to the jury for jury's determination where there is such question. Sec. 1454, Code 1942. <bold>4. Appeal — instructions — error, not cured by other</bold> <bold>instructions.</bold> In a case in which Court erred by directing jury to return verdict for defendant if jury found that death of plaintiff's decedent was proximately caused by decedent's negligence, error was not cured by giving instructions which merely detailed grounds of negligence pleaded by plaintiff and required proof of specific acts of negligence by preponderance of evidence, but did not mention contributory negligence of decedent. Secs. 1453, 1454, Code 1942. <bold>5. Appeal — instructions — Rule 11, Supreme Court Rules, not</bold> <bold>applicable.</bold> Where instructions dealt with rules of law completely different from rule which was considered only in challenged instruction, such instructions could not explain or cure irreconcilable<page_number>Page 217</page_number> conflict in challenged instruction. Rule 11, Supreme Court Rules. Headnotes as approved by Brady, J.

<bold>1. Appeal — right to appeal, a statutory privilege.</bold> Right to appeal is a statutory privilege, granted and defined by the Legislature. <bold>2. Appeal — designation of appellate record — interpretation and</bold> <bold>application of statute.</bold> Duty of both parties, on appeal, to designate part of record which they consider essential to decision of questions presented by appeal must be exercised fairly, reasonably, and in good faith by both appellant and appellee. Sec. 1640, Code 1942. <bold>3. Appeal — same — same.</bold> Appellee could not urge Supreme Court to adopt presumption that appellant's assigned errors would be cured by other evidence not designated, thereby placing entire burden and risk upon appellant alone of insufficient designation of part of record which is essential to decision of questions presented by appeal. Sec. 1640, Code 1942. <bold>4. Appeal — same — same.</bold> Appellee must make designations of portion of record, which he considers essential to decision of questions presented by appeal, if he thinks appellant's selections are inadequate; and this duty must be exercised fairly, reasonably, and in good faith. Sec. 1640, Code 1942. <bold>5. Appeal — same — same.</bold> Where appellant has made an apparently sufficient, good-faith designation of record, on the issues which he thinks are essential for decision of appeal, appellee has duty to make counter-designations which, in his opinion, would develop any additional evidence pertinent to appeal. Sec. 1640, Code 1942. <bold>6. Appeal — same — same.</bold> Issues which appellant will raise in Supreme Court should be sufficiently identified by his motions in trial court for directed verdict, or to exclude evidence and render judgment for him, his motion for new trial, for judgment notwithstanding verdict, and his designations of record on appeal, and appellee should be enabled to make adequate counter-designations. Sec. 1640, Code 1942.<page_number>Page 245</page_number> <bold>7. Appeal — same — same.</bold> If appellant contends that evidence is insufficient to support verdict but does not designate any testimony or designates only testimony offered in his behalf, it may be found that he has not made his designations of record fairly and in good faith. Sec. 1640, Code 1942. <bold>8. Appeal — same — same.</bold> Appellant's designation of record in appeal from adverse verdict in collision case which included testimony of appellee, her husband who occupied truck with her and was driving at time of collision, two doctors who testified for appellee, three asserted eyewitnesses who testified for appellant, and all instructions granted appellee, complied with statutory requirement of making good-faith designations of appeal record. Sec. 1640, Code 1942. <bold>9. Appeal — same — same.</bold> Failure of appellee to follow prescribed procedure for obtaining record precludes him from questioning its composition. <bold>10. Appeal — same — same.</bold> Appellee could not avoid duty to make counter-designations of record on issues essential for decision of appeal merely by urging presumption that appellant's assigned errors would be cured by other evidence or instructions not designated. Sec. 1640, Code 1942. <bold>11. Appeal — record on appeal — verdict and judgment essential</bold> <bold>parts of.</bold> Verdict and judgment are essential parts of record on appeal which should be sent to Supreme Court by clerk in every case, whether or not designated by parties. <bold>12. Appeal — designation of appellate record — appellee granted</bold> <bold>reasonable opportunity to comply with statute.</bold> In Supreme Court's first decision under newly enacted statute modifying duties of appellant and appellee, Supreme Court gave leave to appellee, who had not fully complied with statutory requirements, to do so, and, similarly, gave leave to appellant to respond before proceeding to adjudication of appeal on its merits. Sec. 1640, Code 1942. Headnotes as approved by Ethridge, J.

<bold>1. Appeal — continuance — refusal to grant application for, not</bold> <bold>an abuse of discretion.</bold> Refusal to grant application for continuance for absence of witness upon whom service of process had not been had, could not be held by reviewing court to be an abuse of discretion, where application was not pursued after its<page_number>Page 336</page_number> denial, it was not alleged as error in motion for a new trial, and no further steps were taken regarding it. <bold>2. Railroads — crossing accident — instructions — negligent</bold> <bold>failure to ring bell or blow whistle instruction, proper.</bold> Instruction, to find for plaintiffs if defendant-railroad's negligent failure to ring bell continuously or blow whistle at repeated intervals for 300 yards before reaching crossing proximately contributed to automobile collision, was proper. <bold>3. Damages — wrongful death — no mathematical formula — each</bold> <bold>case depends on its own facts.</bold> There is no mathematical formula by which damages for wrongful death can be ascertained; each case must stand and depend upon its own facts. <bold>4. Damages — wrongful death — factors to be considered in</bold> <bold>awarding damages.</bold> The age of deceased, his life expectancy, his anticipated earnings, intensity and duration of suffering, relationship between deceased and his survivors, and matters of dependency are considered in awarding damages for wrongful death. <bold>5. Appeal — damages — when Supreme Court will substitute its</bold> <bold>judgment for that of jury.</bold> The jury measures damages in Circuit Court cases, and Supreme Court may not rightfully substitute its judgment for that of jury, and will not disturb jury verdict unless it evidences passion, prejudice or bias; if verdict evidences passion, prejudice, or bias, or if award of Chancellor is manifestly wrong, it is duty of Supreme Court to reverse or order a remittitur. <bold>6. Damages — wrongful death — verdict excessive — affirmed on</bold> <bold>condition of remittitur.</bold> A $75,000 verdict for wrongful death of 52-year-old woman who had life expectancy of 19.99 years, whose 58-year-old husband had life expectancy of 15.77 years, who had been married 36 years, who had three married children over age 31, who had earned $30 weekly, and who was never conscious after accident was excessive in the amount of $15,000. Headnotes as revised by Jones, J.

<bold>1. Employment Security Commission — order of Board of Review —</bold> <bold>scope of judicial review.</bold> Scope of review by courts on appeal from order of Board of Review of Employment Security Commission is confined to questions of law, and findings of Board of Review as to facts are conclusive if supported by evidence. Sec. 7388, Code 1942. <bold>2. Employment Security Commission — findings of Board of Review</bold> <bold>— claimant not "available for work" where she could not</bold> <bold>provide necessary transportation.</bold> Findings of Board of Review that claimant quit her job because she could no longer arrange transportation to work, and thus left her employment without good cause, were fully supported by evidence. Secs. 7379, 7388, Code 1942. Headnotes as approved by Kyle, P.J.

<bold>1. False imprisonment — elements of.</bold> The two elements of action for "false imprisonment" are detention of person, and unlawfulness of such detention.<page_number>Page 472</page_number> <bold>2. Arrest — misdemeanor — with, and without a warrant.</bold> Sheriff had no authority to arrest, without warrant, person charged with misdemeanor not committed in sheriff's presence. <bold>3. False imprisonment — confinement — intention.</bold> Person is not liable for false imprisonment unless his act is done for purpose of imposing confinement. <bold>4. False imprisonment — confinement — intention of parties.</bold> It is very important in false imprisonment actions to determine intentions of parties involved where no physical contact or forceful arrest has occurred. <bold>5. False imprisonment — confinement — without permission.</bold> No "false imprisonment" occurs unless one is confined without his permission. <bold>6. False imprisonment — evidence — restraint, voluntary — case</bold> <bold>in point.</bold> Evidence warranted jury in finding no confinement or detention of plaintiff, but that he went willingly and without protest to city hall with deputy sheriff to clear up error in identification which was clarified in plaintiff's favor upon arrival of sheriff from nearby county. <bold>7. False imprisonment — evidence — admissibility — where</bold> <bold>evidence cumulative.</bold> Capias from clerk of Circuit Court which was intended for arrest of another person with same name should not have been admitted as evidence in false imprisonment action, but admission was not reversible error, because it was cumulative in reflecting undisputed fact that person with that name was sought for misdemeanor. <bold>8. False imprisonment — arrest or detention — burden of proof —</bold> <bold>instructions.</bold> Burden of proof to establish arrest or detention was on plaintiff in false imprisonment action, and instructions as to burden of proof and preponderance of evidence to show detention were properly given. <bold>9. False imprisonment — arrest — where jury finds no arrest, the</bold> <bold>right to arrest becomes immaterial.</bold> Where jury in false imprisonment action finds no arrest, the right to arrest becomes immaterial. Headnotes as approved by Ethridge, J.<page_number>Page 473</page_number>

<bold>1. Appeal — error assigned but not urged, not considered by</bold> <bold>Court.</bold> Defendants were not required to reply to plaintiffs' assignment of error concerning trial court's refusal to allow plaintiffs to amend their declaration; and Supreme Court was not required to pass upon such error, where plaintiffs did not urge it or cite any authorities in support thereof. <bold>2. Negligence — attractive nuisance doctrine — no basis for</bold> <bold>recovery for child's drowning.</bold> Attractive nuisance doctrine could not be basis for recovery for death of six-year-old boy by drowning. <bold>3. Negligence — attractive nuisance doctrine — not applicable to</bold> <bold>water hazards.</bold> Attractive nuisance doctrine is not applicable to water hazards. <bold>4. Negligence — trap or pitfall theory — child's drowning —</bold> <bold>declaration insufficient.</bold> Recovery could not be had, on trap or pitfall theory, for death of six-year-old who drowned in pond in absence of allegation of intent on defendants' part, concealment or disguise of any dangerous features, or affirmative preparation of a dangerous condition with the expectation of a trespass. <bold>5. Negligence — attractive nuisance theory — child's drowning —</bold> <bold>declaration insufficient.</bold> Declaration in action for death of six-year-old who drowned in pond failed to allege that attractive nuisance was proximate cause of death where there was no allegation that boy was attracted to items of debris in pond, that he was playing therewith or floating thereupon, or that he was searching for marine life in pond.<page_number>Page 741</page_number> <bold>6. Negligence — owner or occupant of premises — control over</bold> <bold>premises essential.</bold> Declaration in action for death of six-year-old who drowned in bar pit was insufficient as to contractors who had contracted with State Highway Commission in digging pit, in absence of allegation of ownership, possession, or control raising a duty in the contractors. <bold>7. Evidence — judicial notice — that which is commonly known.</bold> Court will take judicial notice of that which is commonly known. Headnotes as approved by Brady, J. <center> ON MOTION TO DOCKET AND DISMISS</center> October 12, 1964 168 So.2d 50 <bold>8. Appeal — motion for leave to amend after dismissal — suspends</bold> <bold>appeal limitation statute.</bold> Where, upon sustaining of demurrers and dismissal of case, plaintiffs, during the term of court, filed a motion to amend or, in the alternative, for an appeal, and the Court took the motion under advisement for decision in vacation, the judgment of dismissal became final, so as to put into operation the statute of limitations regarding appeals, only upon disposition of the motion, even though such did not occur until a subsequent term. Secs. 753, 1522, 1649, Code 1942. Headnote as approved by Rodgers, J.