Volume 253 — Mississippi Reports

<bold>1. Independent contractors — definition and nature.</bold> An "independent contractor" is any person following a regular and independent employment in course of which he offers services to public to accept orders and execute commissions, for all who may employ him in certain line of duty, using his own means for purposes of being accountable only for final performance. <bold>2. Independent contractors — primary test in determining.</bold> One of primary tests in determining whether person employed to do certain work is independent contractor or servant is control over work which is reserved by employer. <bold>3. Master and servant — servant or independent contractor —</bold> <bold>control of work.</bold> Contractor who is under control of employer is servant, but contractor not under such control is independent contractor. <bold>4. Master and servant — servant or independent contractor —</bold> <bold>public liverymen or draymen.</bold> When contractors engaged in transportation business hold themselves out as offering to contract with public in manner similar to public liverymen or draymen, using their equipment to haul for general public, they may be considered independent contractors. <bold>5. Master and servant — servant or independent contractor — when</bold> <bold>transporter of property works exclusively for one person.</bold> When persons engaged in transporting property for others work entirely for one person over period of years, with understanding that contract between parties may be terminated at will by either party, or that employing party may<page_number>Page 2</page_number> discharge person transporting property under contract with no reciprocal obligations between parties, facts strongly indicate that contract hauler is no longer independent contractor but has assumed status of employee under relationship of master and servant. <bold>6. Workmen's compensation — servant or independent contractor —</bold> <bold>log hauler and claimant workmen working under hauler,</bold> <bold>employees.</bold> Where contract hauler of timber had been in service of same person exclusively for 12-year period and could be discharged at will, relationship was not that of principal and independent contractor but of master and servant, and servant's helper was therefore employee of master and entitled to workmen's compensation when injured in course of employment. Headnotes as approved by Rodgers, J. <center> ON SUGGESTION OF ERROR</center><bold>7. Workmen's compensation — damages — penalties.</bold> Damages and penalties to which workmen's compensation claimant was entitled should be considered by the Commission, rather than fixed by the Supreme Court. Headnote as approved by Patterson, J.

<bold>1. Evidence — proof — cost of repairs — copy of repair bill</bold> <bold>inadmissible — right to cross-examine person in charge of</bold> <bold>making repairs.</bold> Defendant was entitled to cross-examine person in charge of making repairs, and therefore copies of bill rendered by manufacturer for repair of line bar resaw damaged during transportation on truck were not admissible to prove cost of repairs for which truck owner sued his insurer.<page_number>Page 226</page_number> <bold>2. Evidence — same — same — same — same.</bold> Insurance company sued by truck owner on policy for damage caused to line bar resaw during transportation thereof on owner's truck was entitled to cross-examine the person in charge of making repairs as to extent of repairs, whether they were necessary to restore machine, and whether the cost was reasonable. <bold>3. Evidence — proof — cost of repairs — reasonableness of cost,</bold> <bold>for jury.</bold> Reasonableness of cost of repairing damage, which was inflicted on line bar resaw while it was being transported on truck and for which truck owner sued his insurer, was for jury. <bold>4. Insurance — motor carrier's cargo policy — construction of</bold> <bold>policy — not the function of the jury.</bold> Construction of policy was not function of jury, and the jurors therefore should not have been instructed that policies are always construed more strongly against insurer and more favorably to insured. <bold>5. Insurance — instructions — "favorable for insured"</bold> <bold>instruction, objectionable.</bold> Instruction that policies are always construed more strongly against insurer and more favorably for insured was objectionable as abstract statement of what purported to be the law, and as unrelated to facts of action by insured on policy for damages inflicted on line bar resaw while it was being transported on insured's truck, and was prejudicial to insurer. <bold>6. Appeal — instructions — reviewing court required to determine</bold> <bold>correctness of instructions from the record.</bold> Reviewing court was required to determine correctness of instructions from the record, and if instruction had not been properly copied in the record or had been altered after presentation to jury, necessary steps should have been taken to correct record prior to submission of case to Supreme Court. Sec. 1670, Code 1942. <bold>7. Instructions — other instructions of same import.</bold> Requested instruction was properly refused in view of full coverage of matter therein by other instructions.<page_number>Page 227</page_number> <bold>8. Insurance — motor carrier's cargo policy — impact of cargo</bold> <bold>but not vehicle — jury question.</bold> Issue of whether tarpaulin covering the top of a cargo-carrying, flatbed trailer formed a part of the truck, rendering cargo insurer liable, when the cargo and the tarpaulin were damaged when they struck a fixed object over the highway, or whether only the cargo would be deemed to have struck the object, was settled favorably to insurer on former appeal. Headnotes as approved by Inzer, J.

<bold>1. Motor vehicles — collision — stopped truck and following</bold> <bold>automobiles — negligence — proximate cause — comparative</bold> <bold>negligence — jury questions.</bold> In action for injuries to plaintiff when automobile she was driving, to avoid striking preceding truck which stopped in middle of bridge and across center line, stopped and was<page_number>Page 315</page_number> struck from the rear by following automobile, causing plaintiff's automobile to strike the truck, questions of proximate cause and comparative negligence were properly submitted to the jury. <bold>2. Instructions — read together fairly presented issues to</bold> <bold>jury.</bold> Instructions when read together fairly presented issues to jury and disclosed no reversible error. <bold>3. Damages — personal injuries — evidence.</bold> Plaintiff was properly permitted to testify to her being in hospital as consequence of accident which occurred twenty days earlier in view of showing of continuous, connected and causally related history. <bold>4. Evidence — doctors' and hospital bills — necessity and</bold> <bold>reasonableness — for jury.</bold> Under evidence, the necessity and reasonableness of doctors' and hospital bills were for jury. <bold>5. Trial — delay — absent witness — delay declined where</bold> <bold>witness' testimony cumulative.</bold> Declining to delay trial to further search for witness was not an abuse of discretion where such witness' testimony would have been cumulative. <bold>6. Damages — personal injuries — award not excessive.</bold> An award of $20,000 to woman who had been employed as nurse's aide, who incurred expenses and loss of wages of some $6,000, who had been given insulin for ten days to straighten out her nerves so that a myelogram could be made, and who sustained surgery for removal of a disc in lower vertebrae was not excessive. Headnotes as approved by Jones, J.

<bold>1. Elections — appeal from Election Commissioners — Circuit</bold> <bold>Court, proper forum to hear appeal.</bold> Circuit Court was proper forum to hear appeal from order of Election Commissioners to effect that petitioner was entitled to register as a qualified elector of city, and fact that appeal involved an interpretation of decree of Chancery Court was not sufficient reason to transfer the cause. Secs. 3374-10, 3374-13, Code 1942. <bold>2. Elections — same — transfer to Chancery Court — there could</bold> <bold>never exist any reason for such transfer.</bold> There could never exist any reason to transfer an appeal from the Election Commissioners to Chancery Court. Secs. 3374-10, 3374-13, Code 1942.<page_number>Page 326</page_number> <bold>3. Elections — same — same — Chancery Court prohibited by law</bold> <bold>from transferring case back.</bold> Although jurisdiction to hear appeal from determination of the Election Commissioners was vested in Circuit Court, where Circuit Court transferred cause to Chancery Court, Chancery Court was prohibited by law from transferring it back to Circuit Court, and must hear and determine the appeal. Secs. 3374-10, 3374-13, Code 1942. <bold>4. Appeal — same — same — Supreme Court prohibited by</bold> <bold>Constitution from reversing cause for that reason.</bold> Although Circuit Court was in error in transferring appeal from the Election Commissioners to the Chancery Court, Supreme Court was prohibited by Constitution from reversing cause for that reason. Sec. 147, Constitution 1890; Secs. 3374-10, 3374-13, Code 1942. <bold>5. Elections — wrongful denial of right to register — appeal —</bold> <bold>effective date of right to register and registration.</bold> Any person who is wrongfully denied right to register as a voter, and who appeals to secure that right, is entitled to register, and registration will be effective as of date that said person made proper application to register. <bold>6. Elections — same — same — same — case not moot.</bold> Inasmuch as registration of person wrongfully denied right to register as a voter would be effective as of date that he made proper application to register, rather than date of Court's order, appeal from refusal to register him would not be dismissed as moot, on basis that date for registering voters in city to participate in elections to be held had passed. <bold>7. Municipalities — extension or contraction of corporate</bold> <bold>boundaries — statute, not general jurisdiction of Chancery</bold> <bold>Court governs.</bold> Chancery Court in proceeding to ratify and approve city ordinance enlarging or contracting its boundaries, is governed entirely by statute, and general jurisdiction of Chancery Court is not involved in such proceeding. Secs. 3374-11 — 3374-13, Code 1942. <bold>8. Municipalities — same — same — function of Chancery Court</bold> <bold>limited by statute.</bold> Function of Chancery Court is limited, in proceeding to ratify and approve city ordinances enlarging or contracting its<page_number>Page 327</page_number> boundaries, to ratifying and approving ordinances found to be reasonable, to modifying proposed enlargement or contraction by decreasing territory to be included or excluded, or to denying in toto proposed enlargement or contraction if it is found to be unreasonable. Secs. 3374-11 — 3374-13, Code 1942. <bold>9. Municipalities — same — same — Chancellor in deferring</bold> <bold>effective date of annexation, exceeded his statutory</bold> <bold>authority.</bold> Chancellor, in attempting to defer effective date of annexation of territory to be added to city pursuant to ordinance, exceeded his authority conferred by statute. Secs. 3374-11 — 3374-13, Code 1942. <bold>10. Elections — same — same — same — resident of annexed area</bold> <bold>entitled to register as voter of city after annexation became</bold> <bold>final.</bold> Annexation extending city limits became final ten days after rendition of decree, when no appeal was perfected from decree approving and ratifying ordinance, and part of decree which attempted to defer effective date of annexation of part of territory was void, and of no effect, and resident of annexed area was entitled to register as voter of city after annexation became final. Secs. 3374-11 — 3374-13, Code 1942. <bold>11. Elections — same — same — same — agreement whereby city was</bold> <bold>to defer effective date of annexation, not binding on person</bold> <bold>not a party to such agreement so as to preclude person from</bold> <bold>registering.</bold> Agreement whereby city was to defer effective date of annexation of part of territory, after Court ratified and approved annexation ordinance, was not binding on person who was not party to such agreement, and such person was not thereby precluded from registering as a voter. Secs. 3374-11 — 3374-13, Code 1942. <bold>12. Municipalities — same — decree approving annexation</bold> <bold>ordinance — collateral attack.</bold> Resident of area annexed by city was entitled to collaterally attack decree approving annexation ordinance insofar as effective date of annexation was deferred, although he relied on ordinance in part for relief, where provision deferring effective date was void. Secs. 3374-11 — 3374-13, Code 1942. Headnotes as approved by Inzer, J.<page_number>Page 328</page_number>

<bold>1. Due process — murder — punishment — determined and fixed by</bold> <bold>jury.</bold> Due process requires that punishment of one charged with murder be determined and fixed by jury. <bold>2. Due process — same — same — same — refusal of Court to fix</bold> <bold>punishment not a denial of due process.</bold> Refusal of Court to sentence defendant, charged with murder, to life rather than permitting jury to fix punishment was not a denial of due process of law. Amendment XIV, United States Constitution. <bold>3. Homicide — instructions — alternative verdicts if guilt found</bold> <bold>instruction, not erroneous.</bold> Instruction in murder case was not erroneous which told the jury that they could return any one of three verdicts: (1) Determining the penalty of the defendant and fixing his punishment at death; (2) fixing his punishment at life in the penitentiary; and (3) certifying that they are unable to agree upon his punishment, in which event it would be the Court's duty to sentence him to life imprisonment. <bold>4. Criminal law — plea of guilty — Court did not err in</bold> <bold>accepting.</bold> Court did not err in accepting plea of guilty in murder case, where defendant's attorney stated that he had discussed matter with defendant and his mother and father at length, and that it was their opinion that his plea in case should remain plea of guilty, and defendant heard attorney's statement<page_number>Page 425</page_number> and gave affirmative answer to question as to whether he concurred in statement. Amendment XIV, United States Constitution. <bold>5. Murder — evidence — guilt of defendant conclusively proven.</bold> Guilt of defendant of murder was conclusively proven, and killing was shown to be without any reason and without justification. Headnotes as approved by Jones, J.

<bold>1. Equity pleading — answer — rule respecting information and</bold> <bold>belief — rule not complied with.</bold> Statement in answer neither admitting nor denying allegations of certain paragraphs of bill charging specific sale of goods, and stating that defendants had no knowledge on which to form a belief as to who received and signed invoices, and calling upon complainant to make strict proof thereof, was not sufficient denial of allegations of bill. <bold>2. Evidence — declarations against interest — admissibility.</bold> It was error, in assignee's suit on open account for sale of chickens, to admit defendant's testimony in prior case about alleged confession of assignor's employee concerning conversion of chickens, where it was not shown that employee was unavailable to testify. <bold>3. Evidence — same — same.</bold> A declaration against interest, to be admissible, must be against pecuniary or proprietary interest of declarant, and declarant must be unavailable to testify. <bold>4. Account, action on — set-off — evidence — insufficient to</bold> <bold>sustain plea.</bold> Where assignee of open account proved right to recover, by undisputed evidence, and evidence offered by defendants was insufficient to sustain plea in nature of set-off, trial court correctly awarded judgment for assignee. Secs. 1412, 1481, Code 1942. <bold>5. Agency — evidence — admissions of agent out of court —</bold> <bold>inadmissible.</bold> Agent's admissions out of court are not competent to show fact of his agency. <bold>6. Agency — conduct not for purpose of serving master — act of</bold> <bold>servant not within scope of employment.</bold> Evidence in assignee's action on open account for sale of chickens was insufficient to show that employee of assignor was acting within the scope of his employment when he allegedly stole chickens.<page_number>Page 487</page_number> <bold>7. Frauds, statute of — debt, default or miscarriage of another</bold> <bold>— agreement squarely within statute.</bold> Testimony that assignor of open account had agreed to pay for debt, default or miscarriage of employee who allegedly stole goods which were deliverable to defendants did not constitute an outright promise to pay for a consideration; and such promise, if made, fell squarely within the Statute of Frauds. Sec. 264, Code 1942. <bold>8. Execution — restraining execution of a judgment — refusal.</bold> Since evidence was insufficient as to matter of set-off, there was no factual basis for staying execution of judgment on open account properly awarded to assignee. Headnotes as approved by Ethridge, P.J.

<bold>1. Municipalities — annexation — extension may permissibly</bold> <bold>affect municipal school districts.</bold> Extension of city boundaries may permissibly affect municipal school districts. Secs. 6328-76.5, 6411.06, 6411.07, Code 1942. <bold>2. Municipalities — annexation — inclusion of certain area,</bold> <bold>reasonable.</bold> Evidence authorized finding that inclusion of area located between two cities and without municipal control or assistance within city seeking to extend its boundaries was reasonable. <bold>3. Due process — municipalities — annexation — taxation in area</bold> <bold>annexed by city to pay bonds issued before annexation.</bold> Extension of municipality's boundaries to include persons not permitted to vote on inclusion, and taxation of those persons for pre-existing indebtedness of the municipality did not violate Federal or State Constitutions or civil rights of those persons objecting to extension of the boundaries. <bold>4. Municipalities — annexation — reasonable and feasible.</bold> Evidence was sufficient to show that proposed expansion of municipality's boundaries was reasonable and feasible. <bold>5. Municipalities — annexation — decree describing territorial</bold> <bold>boundaries with certainty.</bold> Decree describing boundaries of entire city as altered by extension was sufficient under statutes requiring ordinance and decree approving extension of municipality's boundaries to describe with certainty the territory proposed to be included, and providing that decree shall describe boundaries of the municipality as altered. Secs. 3374-10, 3374-13, Code 1942. Headnotes as approved by Jones, J.

<bold>1. Materialmen's lien — funds unpaid in hands of owners due</bold> <bold>contractor — parties claiming interest — burden of proof.</bold> Burden is upon all parties claiming part of funds in hands of owner, belonging to contractor, to show their interest, if any, in funds due contractor remaining unpaid and held by owner. Secs. 336 et seq., 356, 360, 372, Code 1942. <bold>2. Materialmen's lien — same — evidence — failure of owners to</bold> <bold>establish their particular interest in fund.</bold> Where owners did not show how much of funds due painting contractor then in their hands would be required to finish exterior and interior painting of their motel, they failed to prove their interest in funds due contractor, and balance due contractor held in their hands became subject to lien of supplier of paint. Secs. 336 et seq., 356, 360, 372, Code 1942. Headnotes as approved by Rodgers, J.<page_number>Page 770</page_number>