Volume 254 — Mississippi Reports

<bold>1. Workmen's compensation — final settlement report — notice of</bold> <bold>final payment — limitation of actions.</bold> Final settlement report which was signed by workman and which was filed with Commission on February 18, 1960, for January 15, 1960 injury, constituted notice to workman that he was receiving his final payment of compensation, so that his claim filed on March 20, 1961 for the January 15, 1960 injury was barred by one-year statute of limitations. Secs. 6998-19(g), 6998-27, Code 1942. <bold>2. Workmen's compensation — amendment of claims — reopening</bold> <bold>claim — limitation of actions.</bold> Where workman filed claim on March 20, 1961 for January 15, 1960 injury and signed final settlement report which was filed on February 18, 1960, and on October 31, 1962 amended March 20, 1961 claim to include May 1, 1960 injury, as to which additional benefits were paid and no settlement was reported, question whether workman filed claim for May 1, 1960 injury within limitations period for reopening claim depended on (1) whether amendment of October 31, 1962 related back to March 20, 1961 claim and this in turn depended on (2) whether May 1, 1960 injury was new injury or was recurrence of January 15, 1960 injury, and (1) and (2) were issues of fact for Commission, to which case would be remanded. Secs. 6998-18, 6998-19(g), 6998-27, 6998-28, Code 1942. <bold>3. Administrative law and procedure — motion to dismiss —</bold> <bold>impropriety of deciding case on.</bold> It is the best policy for administrative agencies who are triers of fact, acting in quasi-judicial capacity, to hear the facts and make a determination from a finding of facts; in most cases, time is lost and additional expense is incurred by<page_number>Page 36</page_number> dismissing proceedings without making a full determination of the issues involved. <bold>4. Workmen's compensation — dismissal without taking testimony —</bold> <bold>assumption that claimant could prove all facts set out in his</bold> <bold>claim.</bold> When Workmen's Compensation Commission dismisses claim and proceeding without taking testimony, the Supreme Court will assume that the claimant could prove all facts set out in his claim. Headnotes as approved by Rodgers, J.

<bold>1. Appeal — motion to exclude complainants' evidence sustained —</bold> <bold>evidence, how considered by Supreme Court.</bold> In reviewing decision of Chancellor sustaining defendant's motion, made at conclusion of complainants' case, to exclude evidence and to find for defendant, Supreme Court would accept as proved all facts in evidence favorable to complainants' case and all favorable inferences which might be reasonably drawn therefrom. <bold>2. Trusts — resulting trust — no trust from breach of mere oral</bold> <bold>agreement to convey real estate.</bold> Evidence in suit to establish resulting trust in commercial property supported findings that no fiduciary relationship existed between plaintiff and defendant, that circumstances did not reveal that resulting trust had been created requiring conveyance of property involved to plaintiff or to corporation in which plaintiff and defendant were officers and stockholders, and that plaintiff's testimony showed only making of oral agreement for conveyance of real estate unenforceable under Statute of Frauds. Headnotes as approved by Smith, J.

<bold>1. Insurance — health and accident policy — fraud in procurement</bold> <bold>of policy — adequate disclosure of prior medical history</bold> <bold>made.</bold> In action on health and accident policy, evidence on issue of insurer's affirmative defense of fraud in procurement of policy supported finding that plaintiff made adequate disclosure of his prior medical history to agent who took his application. <bold>2. Insurance — health and accident policy — evidence — total</bold> <bold>disability within meaning of policy.</bold> Evidence supported finding of plaintiff's total disability within meaning of health and accident policy issued by defendant insurer. <bold>3. Insurance — health and accident policy — evidence — doctor's</bold> <bold>deposition admissible.</bold> In action on health and accident policy, deposition of physician, who examined insured after period of alleged disability involved, as to insured's symptoms and possibility that they were caused in part by Meniere's disease was competent, in view of prior testimony of insured and his doctor relating to symptoms related to doctor. <bold>4. Insurance — health and accident policy — benefits under —</bold> <bold>depreciation not to be added to profit in computing earnings.</bold> Insured who owned large truck suitable for hauling cargo, and who contracted with holders of certificates of convenience and necessity to use such truck in connection with their business, was not entitled to add depreciation on truck to<page_number>Page 317</page_number> his profit on contract transactions in computing his earnings, for purpose of determining benefits under health and accident policy. Headnotes as approved by Jones, J.

<bold>1. Insurance — collision — amount of loss or damage — jury</bold> <bold>question.</bold> Whether plaintiff's automobile which was insured against collision damage by defendant was a total loss as contended by plaintiff, or whether it could be repaired for stated sum as contended by defendant was for jury. Headnote as approved by Rodgers, J.