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plaintiff's own testimony that he was experienced, or at least, that he so informed his employer.

Reversed and remanded.

(107 Miss. 37)

POSTAL TELEGRAPH CO. v. CRISCOE. (No. 16,460.)

(Supreme Court of Mississippi. April 6, 1914.) TELEGRAPHS AND TELEPHONES (8 67*) -DE

LAY-DAMAGES.

lies, place transportation here via A. V. for forty-party ticket. You pay for farming families only. No hoboes will appear. You pay no money except transportation until you get them. Wire me, via Postal, at once." Notation at the bottom: "Will call for answer." In response to this telegram, Mr. Jennings wired appellee at Vicksburg, the message being received 10:24 a. m., May 6, 1912, as follows: "Griffith president bank pay ticket six families. Pay you $25.00 family on delivery."

On the trial, appellee testified that he called four times during the day on May 6th, and was informed each time that no telegrams had come for him. The messages were not delivered until about 6 p. m. May 7th, when a messenger boy located appellee in a hotel. In the meantime, however, the fam

Plaintiff undertook to secure tenants for two planters at an agreed compensation. Thereafter he telegraphed to one planter that he could send six families, and asked a reply by wire, and to the other planter that, if he wanted five families, to send transportation for them, also requesting an answer by wire. The first planter telegraphed to plaintiff to call him up over the phone, that he could use four families, and the second answered that a certain bank would pay the transportation for six families had become dissatisfied, and had gone ilies, and that plaintiff would receive the com- with another labor agent. Appellee bases pensation on delivery. Neither reply telegram his suit upon the failure of appellant to dewas promptly delivered, and the tenants secured by the plaintiff went with another agent. liver these answers, claiming that his mesHeld that, if the reply telegrams had been de- sages and the replies thereto constituted a livered, no contract would thereby have been contract between him and Messrs. Marley completed, and that, therefore, the telegraph and Jennings, and because of the negligence company was not liable. of the telegraph company he has been damaged to the extent of $25 per family for each family which he would have delivered, had the messages been received in time, and asks also punitive damages. The contention of the telegraph company is that there is no completed contract between appellee and Messrs. Marley and Jennings, and requested a peremptory instruction, which was refused.

[Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. 88 64-68; Dec. Dig. § 67.*]

Cook, J., dissenting in part.

Appeal from Circuit Court, Hinds County; W. A. Henry, Judge. Action by J. L. Criscoe against the Postal Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Appellee was endeavoring to secure families of laborers for A. E. Jennings and E. J. Marley, for tenants on their plantations. Jennings and Marley had agreed to pay appellee $25 for each family of laborers secured. The agreement was made first by personal interview, and thereafter appellee went to Vicksburg for the purpose of getting the families. On May 5, 1912, he telegraphed Marley from Vicksburg, Miss., to Sumner, Miss., via Postal Telegraph, as follows: "I can give you as many as six first-class families. If you need all or part, wire me at Other parties will take them. I give you preference. No singles or hoboes. Send message via Postal. If you telephone, call Cumberland office, at 8:50 a. m." There was a notation on the face of the message: "Care of Mrs. Neal, China street. Will call." Mr. Marley sent the following reply, via Postal Telegraph Company, from Sumner, Miss., addressed to appellee at Vicksburg, Miss., which was received at Vicksburg at 10:37 a. m., May 6, 1912: "Call me over phone. Can use four families."

once.

On May 5, 1912, appellee sent a telegram to Mr. Jennings, from Vicksburg, Miss., to Greenwood, Miss., via Postal Telegraph Company, as follows: "I failed to see your brother Jackson. If you want the five fami

The case went to a jury, and verdict was returned for plaintiff for $200, from which the telegraph company appeals.

Flowers, Alexander & Brown, of Jackson, for appellant. Geo. Butler, of Jackson, and J. W. Cassedy, of Brookhaven, for appellee.

SMITH, C. J. Had the telegrams from Marley and Jennings been delivered to appellee, no contracts would have been thereby completed. Consequently the case falls within the rule announced in Johnson v. Telegraph Co., 79 Miss. 58, 29 South. 787, 89 Am. St. Rep. 584, and applied in Telegraph Co. v. Adams Machine Co., 92 Miss. 849, 47 South. 412, Telegraph Co. v. Patty Dry Goods Co., 96 Miss. 781, 51 South. 913, and Telegraph Co. v. Crook & Company, 63 South. 350. The court, therefore, erred in refusing defendant's instructions Nos. 4 and 5. Reversed and remanded.

COOK, J. (dissenting). Appellee, plaintiff below, made an arrangement with Mr. Marley, of Sumner, and Mr. Jennings, of Greenwood, both planters in the Delta, to go to Vicksburg and there endeavor to secure laborers for these planters. I agree with my Associates that the Marley transaction may be eliminated, for the reasons stated in the opinion.

smith's striker, so that plaintiff could not turn out his share of the work, was not notice that the fellow servant was incompetent, so that the employer might reasonably anticipate injury to his coworkman.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 343-346; Dec. Dig. } 173.*]

3. MASTER and Servant (§ 97*)—NEGLIGENCE OF FELLOW SERVANT.

The fact that a blacksmith's helper, in cutting bolts, struck a glancing or "nudging" blow, which caused the sledge to slip off the object struck, injuring plaintiff, did not constitute neg

I believe, however, that the telegram to Jennings and Jennings' answer thereto constitute a completed contract, and the failure of the telegraph company to deliver Jennings' reply made it liable in damages to Criscoe. Mr. Criscoe made an agreement with Mr. Jennings to go to Vicksburg and see what he could do, and then notify Jennings. After arriving at Vicksburg, Mr. Criscoe wired Mr. Jennings as follows: "Vicksburg, Miss., 4-5-12. Epsie Jennings, Greenwood, Miss. I failed to see your brother Jackson. If you want the five families place transpor-ligence in the discharge of his duties. tation here via A. V. for 40 party ticket. You pay for farming families only. No hoboes will appear. You pay no money except Appeal from Circuit Court, Harrison Countransportation until you get them. Wire me, ty; J. H. Neville, Special Judge. via Postal, at once. J. L. Criscoe." Mr. Action by Louis Joh against the Ingram From a judgment Jennings replied promptly as follows: "Green- Day Lumber Company. wood, Miss., May 6, q. J. L. Criscoe, Vicks- for plaintiff, defendant appeals. and remanded. burg, Miss. Griffith president bank pay tickets six families. Pay you twenty-five family on delivery. A. E. Jennings." reply was not delivered at all.

This

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 163; Dec. Dig. § 97.*]

Reversed

Wells, May & Sanders, of Jackson, for ap pellant. Mize & Mize, of Gulfport, for appellee.

It will be observed that Mr. Criscoe's telegram offered five families, and Mr. Jennings' COOK, J. The right of recovery in this reply informed Mr. Criscoe that the president case depends mainly upon the proposition of the bank would furnish money to pay the that appellee was injured by the negligence transportation for six families, and that Jen- of an incompetent fellow servant, and that nings would pay Criscoe $25 for each family the master retained in its service the indelivered to him. I interpret this telegram competent servant after notice of his incomto mean that Jennings accepted the proposi-petency. To maintain this contention it was tion to take the five families Criscoe had necessary for appellee, plaintiff below, to wired him about, and it also means, in- show (a) that his fellow servant was incomferentially, that Jennings would take and petent; (b) that the master knew, or should pay for one more family, if Criscoe saw fit have known, that he was incompetent; (c) and was able to deliver the extra family. I that the master failed to discharge the indo not think the two telegrams can be con- competent servant; (d) that appellant was strued to mean that Criscoe made one propo- injured because of the negligence of this servsition and Jennings accepted a different ant. proposition. I take it that any business man would have acted on the telegram by forwarding the five families offered, and also the additional family, if he was able to deliver the additional family.

(107 Miss. 43)

INGRAM DAY LUMBER CO. v. JOH. (No. 16,240.)

Appellee was a blacksmith, and one Sam Gibson was his helper, or striker. It appears that appellee, about two months before the injury, complained to Mr. Cleghorn, who. it seems, was authorized to discharge Sam. He was asked to state what he said to Mr. Cleghorn, and his reply was: "I only told him that Sam was no helper, and that if he wanted the work done he would have to give me a man; I could not work and strike,

(Supreme Court of Mississippi. April 6, 1914. too." "How many times did you complain Suggestion of Error Overruled April 20, 1914.)

1. MASTER AND SERVANT (8, 168*)-FELLOW SERVANT "INCOMPETENCY.

"Incompetency" in a fellow servant denotes the absence of reliability in all that is essential to make up a reasonably safe person, considering the nature of the work and the general safety of those required to associate with the person. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 334, 335, 337-340, 349; Dec. Dig. § 168.*

about him?" "Constantly; I can't say how many times; numerous times." "You say that about two months before this injury occurred you complained to Mr. Cleghorn about him?" "Yes; from the time Sam started to help me I said that Sam was not worth a continental."

We gather from the entire record that Sam was a man of more than average physical strength, not quick-witted, but a little dull of

For other definitions, see Words and Phrases, understanding. There is nothing to show vol. 4, pp. 3507-3510.]

2. MASTER And Servant (§ 173*)—INJURIES— INCOMPETENT FELLOW SERVANT-NOTICE OF INCOMPETENCY.

A notice, given to the employer, that plaintiff's fellow servant was not a first-class black

that he was careless or reckless. No effort was made to prove that he had a bad repr tation, which would lead to the inference that he was a menace to those working with him. Appellee was doing the ordinary work of s

blacksmith-cutting bolts-and Sam was Appeal from Circuit Court, Sunflower wielding the sledge. It seems that, instead County; Monroe McClurg, Judge. of striking straight down, Sam struck a glancing or "nudging" blow, which caused the sledge to slip off the object struck and come in contact with a very important part of appellee's anatomy, inflicting serious and pain-dered on the issue of damages. ful injury.

[1] We do not think that the evidence warranted the belief that Sam was incompetent, in the sense that he was a dangerous man to those who had to work with him. "Incompetency denotes the converse of reliability in all that is essential to make up a reasonably safe person, considering the nature of the work and the general safety of those who are required to associate with such person in the general employment." Sam had been in the service of this company for some time, and, with the exception of the accident here in question, no evidence was offered to show that he was not a reasonably safe person to work with.

[2] The notice of incompetency given to the master by appellee was only that Sam was not a first-class striker, and for this reason appellee could not turn out his share of the work. There was nothing in this to show that Sam was a man who the master might reasonably anticipate would injure the workmen whom he was helping.

[3] Besides, we are convinced that the accident causing the injury to appellee was one of the sort that no amount of forethought or skill could eliminate. There is always some risk which a servant must assume, and it seems to us that what occurred in this case does not authorize the finding that Sam was negligent in the discharge of his duties. There was an accident, such as may occur by the act of the most skillful and prudent work

man.

Reversed and remanded.

(107 Miss. 46)

LYNCHARD v. YAZOO & M. V. R. CO. (No. 16,492.)

(Supreme Court of Mississippi. April 20, 1914.) 1. CARRIERS (§ 277*)-CarrYING PASSENGER BEYOND STATION-NOMINAL DAMAGES.

Had a passenger not been carried beyond her station, she would have reached her destination by walking or riding a mile, accompanied by her brother, who would have met her and carried her suit case; but by reason of being carried by she was compelled to walk 2 or 2 miles to her destination and carry her suit case, by reason of which she became sick and remained in bed with fever three or four days. Held, that the passenger was entitled to more than nominal damages.

[Ed. Note. For other cases, see Carriers, Cent. Dig. 88 1082-1084; Dec. Dig. § 277.*] 2. CARRIERS (8 277*- CARRYING PASSENGER BEYOND STATION-PUNITIVE DAMAGES.

Punitive damages are not recoverable by a passenger for being carried past her station, in absence of willful or wanton negligence.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1082-1084; Dec. Dig. § 277.*]

Action by Eva Lynchard against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed in part, and new trial or

The

head to Inwood, a flag station on the line of Appellant purchased a ticket from Morethe appellee, a distance of 4 or 5 miles. She boarded the north-bound train and took a seat in the rear coach. Before the conductor reached her for the purpose of collecting tickets, the train had passed Inwood, and when she handed her ticket to the conductor she called his attention to that fact. train stopped at the next station, called Sunflower, and the appellant got off the train. Appellant lived about a mile north of Inwood and about 21⁄2 miles south of Sunflower. She had notified her brother to meet her on the north-bound train at Inwood. No one met her at Sunflower, and she was without funds to pay a hotel bill, or to hire a team to drive her to her home. She had with her a grip weighing about 20 or 25 pounds. She testified that it took her about 3 hours to walk back from Sunflower to her home lugging this grip, and that as a consequence she reached home very much exhausted and was confined to her bed for several days with fever. On the trial, the court instructed the jury to find for plaintiff and award nominal damages only. From a judgment for $1 she appeals.

Chapman & Chapman, of Indianola, and Whitfield & Whitfield, of Jackson, for appellant. Mayes & Mayes, of Jackson, for appellee.

SMITH, C. J. At the request of the defendant the court below charged the jury "to find for the plaintiff and assess her merely nominal damages," and from a verdict and judgment accordingly plaintiff appeals.

[1] According to the evidence of appellant, would have reached her destination by eihad she not been carried by her station, she ther walking or riding one mile, accompanied by her brother, who would have carried her suit case; but by reason of having been carried by her station she was compelled to walk alone, in order to reach her destination, 2 or 21⁄2 miles, carrying her suit case herself, by reason of which she became sick and remained in bed with fever three or four days. If this is true, the jury would have been warranted in awarding her more than mere nominal damages.

[2] The cause of action stated in the declaration is predicated solely upon the negli yond her station, and not upon any insult gence of appellee in carrying appellant beoffered her by the conductor; and as the evidence shows that the failure of appellee's servants to stop its train at appellant's sta

tion was not the result of willful or wanton negligence, punitive damages are not recoverable.

The judgment of the court below will be reversed, in so far as it fixes the amount of appellant's damages, and a new trial awarded on that issue; but in all other respects it will remain in full force and effect.

(107 Miss. 51)

AKROID v. STATE. (No. 17,317.) (Supreme Court of Mississippi. March 23, 1914.)

1. LARCENY (§ 14*)-ACTS CONSTITUTING OBTAINING POSSESSION FRAUDULENTLY WITH FELONIOUS INTENT.

Where possession of a chattel is obtained fraudulently, with the felonious intent, existing at the time, to deprive the owner thereof, and the person so obtaining the chattel deprives the owner thereof, in pursuance of such intent, larceny is committed.

[Ed. Note.-For other cases, see Larceny, Cent. Dig. §§ 34-38; Dec. Dig. § 14.* For other definitions, see Words and Phrases, vol. 5, pp. 3991-4003; vol. 8, p. 7701.] 2. CRIMINAL LAW (§ 824*)-INSTRUCTIONS REQUESTS-NECESSITY.

The court need not charge on an issue raised by the evidence of accused, unless requested

so to do.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. § 824.*]

3. LARCENY (§ 70*)-EVIDENCE-INSTRUCTIONS. Where the issue was whether accused lawfully obtained possession of a chattel and then converted it to his own use, and hence was not guilty of larceny, or whether possession was obtained fraudulently, with the felonious intent at the time to deprive the owner thereof, followed by conversion by accused, an instruction defining larceny was not objectionable.

[Ed. Note.-For other cases, see Larceny, Cent. Dig. 88 182, 183, 185, 186; Dec. Dig. 70.*]

4. WITNESSES (§ 277*) - CROSS-EXAMINATION OF ACCUSED-EXTENT.

The cross-examination of accused as to matters testified to by him on his examination in chief is not objectionable.

ring, of the value of $35, of the property of M. Jacobs, as charged in the indictment, then it is the sworn duty of the jury to find the defendant guilty as charged in the indictment."

He also assigns as error the action of the court in permitting the district attorney to cross-examine the defendant, who testified in his own behalf, as to certain alleged wrongful dealings with an associate in the state of Louisiana. He had no counsel in the lower court, and his evidence shows that he first referred to the dealings in Louisiana, and the district attorney, without any objection from him, went into the matter further on crossexamination.

We

On appeal, one of the assignments of error is predicated on certain remarks alleged to have been made by the judge to the jury as they were retiring to consider their verdict, to wit: "Hurry back, gentlemen. have another case to try this morning, and we want to get through." The record, however, shows that no bill of exception was taken, and the remarks of the court, if made at all, are not preserved in the record.

D. B. Cooley, of Laurel, for appellant. J. M. Vardaman, of Jackson, for the State.

Mr.

SMITH, C. J. Appellant was convicted in the court below of the crime of larceny. M. Jacobs was engaged in the jewelry business in the town of Laurel. One day appellant entered his store and asked to be shown a ring. He selected one that he seemed to like, worth $35, and according to the evidence of Jacobs he said that before he purchased it he would like to show it to a man named Sommers, for whom he was working. To this Jacobs says he agreed, and appellant left the store with the ring, ostensibly for the purpose of showing it to Sommers, before deciding whether or not he would purchase it. Instead of doing this, however, he left Laurel and came to Jackson, bringing the ring with him, and there pawned it at a pawnshop. According to the evidence of appellant, he

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 925, 977-983; Dec. Dig. § 277.*] 5. CRIMINAL LAW (§ 1128*) — APPEAL-REC-purchased the ring from Jacobs on credit.

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An assignment of error, based on a statement made by the circuit judge to the jury, not disclosed by the record, cannot be considered on appeal.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2951-2953; Dec. Dig. § 1128.*]

Appeal from Circuit Court, Jones County; Paul B. Johnson, Judge.

A. H. Akroid was convicted of larceny, and he appeals. Affirmed.

Appellant assigns among other errors, the granting of the only instruction given for the state, which is as follows: "The court charges the jury, for the state, that if you believe from the evidence beyond a reasonable doubt that the defendant unlawfully and feloniously took, stole, and carried away the finger

[1] The assignment of error mainly relied on is that the verdict was not warranted by the evidence; appellant's contention being that no larceny was shown, because under Jacobs' testimony he came lawfully into the possession of the ring, and therefore the subsequent conversion thereof did not constitute larceny. The proposition of law here relied on is a correct one; but, while that is true, it is also true that if the possession of property is obtained fraudulently, with the felonious intent existing at the time to deprive the owner thereof, and the person so obtaining it does in pursuance of such intent deprive the owner of the property, larceny is thereby committed. Watson v. State, 36 Miss. 593, 25 Cyc. 40.

[2] On Jacobs' testimony it was for the

jury to say whether or not appellant had Prior to the probation of said will, appelfraudulently obtained possession of the ring lees, who are the heirs at law of Luke and with intent then and there to steal it. The Jennie Spivey, had filed a bill for partition, jury were not instructed along this line, but asking that the lands devised in the said will the court was not required so to do unless be divided among the heirs at law. It was requested. agreed between counsel that both issues should be submitted to the chancellor, without a jury, on the same evidence. The chancellor, after hearing the evidence, held that the instrument was not the last will and testament of Luke and Jennie Spivey, that they were not of sound mind at the time of the execution of same and ordered that the property be sold for partition and the proceeds divided among the heirs at law.

[3] The first instruction complained of simply defines larceny, and is therefore unobjectionable.

[4] There is no merit in the objection here urged to the evidence brought out by the district attorney on the cross-examination of appellant, who testified as a witness in his own behalf. The matter inquired into had been testified to on the examination in chief, and, moreover, the cross-examination was conducted without objection being interposed thereto.

[5] The record does not disclose that the circuit judge made the statement to the jury attributed to him in the assignment of error, and therefore it is not presented for our consideration. Affirmed.

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Code 1906, § 1917, provides that a person shall not testify as a witness to establish his own claim or defense against the estate of a deceased person which originated during the lifetime of such person. Held, that such section applies only to a person who has a claim or defense against a decedent's estate; and hence, married women having been fully emancipated, the fact that a wife was disqualified under such section did not also disqualify her husband.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 644-649; Dec. Dig. § 146.*] Appeal from Chancery Court, Neshoba County; J. F. McCool, Chancellor.

Will contest between Mrs. Melzie Spivey and Roxie Walton and others. From a judgment in favor of the latter, the former appeals. Affirmed.

Luke Spivey and his wife, Mrs. Jennie Spivey, executed what purported to be a last will and testament, making the sole beneficiary of same their son, B. A. Spivey, who was unmarried, and who lived with them. Prior to the execution of this instrument, Luke Spivey had conveyed to his wife the title to the property here in dispute. Shortly after the execution of this purported will, Mrs. Jennie Spivey died. Soon after her death, her son, B. A. Spivey, married the appellant, Melzie Spivey. A short while thereafter B. A. Spivey died, and before the end of the year Luke Spivey died. Appellant thereafter probated the will of Luke and Jennie Spivey, devising all their property to B. A. Spivey, the deceased husband of the appellant. Issue devisavit vel non was made up, and by agree ment a jury was waived.

On the trial, the husbands of certain of the appellees were permitted to testify as to the mental condition of Luke and Jennie Spivey at the time of the execution of the purported will. The admission of their testimony is assigned as error.

H. H. Rodgers, of Louisville, and Flowers & Brown, of Jackson, for appellant. G. E. Wilson, of Philadelphia, for appellees

REED, J. There is ample testimony to support the decree of the chancellor in favor of the contestants, on the trial of the issue devisavit vel non in this case. The instrument propounded for probate was decreed to be not the true last will and testament of Luke Spivey and Jennie Spivey, his wife, and its probate was refused. Contestants are heirs at law of Mr. and Mrs. Spivey.

In one of the briefs for appellant, counsel claim that the chancellor committed error in admitting the testimony of the husbands of several of the contestants tending to show the mental incapacity of Mr. and Mrs. Spivey. The following, taken from the brief, gives counsel's contention: "Under the doctrine announced in the Whitehead Case, 61 South. 737, it would have been error to allow the wives of these parties to testify as to the sanity of the testator, and, following the rule laid down in the case, we are of the opinion that since the husband and wife are of 'one flesh,' and it would be error to permit one to testify, it would be certainly error to permit the other to do so."

We do not see anything in section 1917 of the Code of 1906 providing that "a person shall not testify as a witness to establish his own claim or defense against the estate of a deceased person which originated during the lifetime of such person," nor in the case of Whitehead v. Kirk, supra, discussing the statute, to sustain counsel's position. The quotation by Judge Cook in the Whitehead Case of the words in Gen. ii, 24, "Therefore shall a man leave his father and his mother, and shall cleave unto his wife; and they shall be one flesh," was made in that part of the opinion discussing and deciding the question of the wife's competency to testify "concerning the acts and words of her husband,

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