(100 So.) Proceedings by the Board of Supervisors of Wilkinson County, increasing an assessment against the Foster Creek Lumber & Manufacturing Company. From a judgment on appeal, striking a portion of the order increasing the assessment, the County appeals. Reversed, and appeal from Board of Supervisors to circuit court dismissed. Tucker & Tucker, of Woodville, for appellant. D. C. Bramlette, of Woodville, for appellee. ETHRIDGE, J. The Foster Creek Lumber & Manufacturing Company took an appeal to the circuit court from an order of the board of supervisors rendered at their equalization meeting in August, 1923, increasing the assessed value of its timber, and the circuit court, on motion of the appellee, struck out that portion of the board's order making a 20 per cent. raise on the timber on all lands in the county, including the appellee's from which judgment of the circuit court the county appeals here. The appeal from the order of the board of supervisors was premature, because made before the tax rolls had finally been acted on by the State Tax Commission. And the judgment of the circuit court must be reversed and the appeal to the circuit court dismissed under the authority of MollerVanderboom Lumber Co. v. Board of Supervisors of Attala County, rendered by Division A, April 28, 1924, 99 South. 823, which opinion holds that no appeal would lie until the meeting of the board next after the Tax Commission has returned its order to the county board of supervisors. The syllabus of the opinion in said case is as follows: F. W. WOOLWORTH CO., Inc., et al. v. VOL- (Supreme Court of Mississippi, Division A. (Syllabus by the Court.) In an action for injuries to employee's nose, 2. Evidence 501(9)-Nonexpert's conclu- In action for injuries to employee's nose, 3. Appeal and error 1003-Employee's tes- In an action for injuries to employee claim"Section 81, Code of 1906, section 61, Hem-ed to have been caused by a cold contracted on employer's failure to provide sufficient heat in ingway's Code, and sections 6, 7, 8, 9, and 10, in the assessments are required to be carried out by the board. The time limit for the taking of such appeals being prescribed by section 10, chapter 323, Laws of 1920, section 7769h1, Hemingway's Supplement, 1921." 4. Appeal and error 1001 (1) Jury's finding Finding by jury will not be disturbed on ap- On Suggestion of Error. ed for trial merely as to damages, where Su- The Supreme Court, on deciding, on appeal Reversed, and appeal from the board of submitted to jury, should remand case merely supervisors to the circuit court dismissed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1 6. Damages 130(1)-$2,000 verdict for se- its to the doctor for further treatment of her vere cold held excessive. $2,000 verdict for severe cold, contracted because of defendant employer's negligent failure to provide sufficient heat, held excessive, and subject to reduction to $500. nose up to the time of the alleged injury on the said 25th day of January, 1923. She claimed the cold she, contracted at the store on the day mentioned caused her nose to become injured and stopped up, which gave her great pain and discomfort until she had a Appeal from Circuit Court, Harrison Coun- doctor to burn it out again about two weeks ty; D. M. Graham, Judge. Action by Miss Cora Volking against the J. A. Leathers, of Gulfport, for appellants. after the 25th of January. She also testified the cold she contracted caused her to have sore eyes and a sore throat. The testimony was objected to by the defendant below. The court instructed the jury that they might assess damages for the alleged injuries to the nose, eyes, and throat. The plaintiff below did not introduce her doctors to show by their expert testimony that the cold she contracted caused the injury to the nose, throat, and eyes, but she merely gave it as her opinion alone that these troubles and injuries resulted from the cold that she had contracted on that day in the Woolworth store. HOLDEN, J. This is an appeal by F. W. Woolworth Company from a judgment for $2,000 rendered against it in favor of Miss Cora Volking as damages for the willful negligence of appellant in failing to furnish her a reasonably safe and comfortable place in which to work, resulting in her contracting a severe cold, which caused her to suffer physi-erred in admitting incompetent testimony, cal pain, and injuries to her nose, throat, and eyes. The appellant urges reversal on several grounds among them being that the court granting certain instructions, and setting aside the judgment granting a new trial to appellant while appellant was absent and without notice; and that the court erred in refusing to grant a peremptory instruction to the appellant on the ground the evidence was insufficient to show that the acts of Anderson, the manager for Woolworth, was the proximate cause of the injuries complained of by Miss Volking. The facts of the case, as shown by testimony of appellee, necessary to an understanding of the decision, are, in short, as follows: On and before January 25, 1923, Miss Volking was employed as cashier and bookkeeper for the Woolworth Company in Gulfport. On the date mentioned the weather was very cold, and after Miss Volking had started up on her duties that morning, Mr. Anderson, the manager of the Woolworth Company shut off the heating radiators in the store, opened the doors, and turned on the ceiling fans, causing the storeroom to become very cold and uncomfortable. The appellee complained to Mr. Anderson about turning off the heat and asked that it be turned on again because she was cold, and that she had had an operation upon her nose several months previThe appellant urges that no recovery can ously; but Anderson refused to turn the heat be had for any amount because the neglion again and allowed the occupants of the gence complained of is not shown to have store to suffer the discomfort of the cold dur-proximately resulted in any injury or suffering the day. Miss Volking testified that she became chilly and sick on account of the cold temperature in the store and contracted a cold, had to leave at 5 o'clock in the afternoon, and was sick in bed for two days thereafter on account of the cold she had contracted. She came back to work, however, at noon on the second day and remained in the service of the appellant for several months, and after leaving the employment filed this suit to recover damages for the injury and suffering caused by the conduct of Mr. Anderson, the manager in charge of the Woolworth business. Miss Volking testified she had an op eration about two months before the 25th of January, in which the doctor had cut some bones out of her nose, and that this trouble had not healed, and she made continued vis [1] We shall pass upon one point only, which will result in a reversal, and the other errors complained of may not arise on a new trial, and that is the question of whether or not the testimony in the case was sufficient to show a causal connection between the cold contracted by Miss Volking and the subsequent injury to her nose, eyes, and throat complained of by her. ing to the appellee; but we disagree with this contention, because we think the testimony is competent and sufficient to show that she contracted a bad cold on account of having to remain in the cold building during the day in question-conceding for the purposes of this case (though not deciding because the point is not raised) that appellant owed appellee the duty to furnish her a reasonably comfortable place in which to work. But it is our judgment the testimony of the appellee alone, in which she gave her opinion or conclusion that the injury to her nose necessitating its being burnt out, and the trouble with her eyes and throat several weeks after the exposure, was caused by the cold, was not sufficient to establish a causal connection between the cold and the subsequent injuries complained of. She did not put the doctors (100 So.) on the stand who attended her, who doubt less could have furnished expert testimony of probative value as to whether or not the cold had caused the other troubles. Her opinion on the subject, without a basis of facts therefor, amounted to very little more than mere conjecture or guesswork, and is not to be solely relied upon to reasonably establish the causal connection between the contracted cold and the nose, throat, and eye troubles. [2] Miss Volking testified she had an operation in which a quantity of bone was taken out of her nose two months prior to the exposure in question, and that she was not entirely well from this operation at the time she took the cold. A bad 'cold from which a person is confined for a few days does not necessarily, of common knowledge, result in sore eyes, or the kind of an injury to her nose which she complained of and subsequently had burned out. It is possible that these injuries could have proximately resulted from the cold, still the proof offered, which was merely the unsupported opinion of a nonexpert without a reasonable basis of facts upon which to found it, was not sufficient nor competent to establish this fact, and we think the court erred in admitting the testimony and permitting the jury to allow damages for the injuries to the nose, eyes, and throat. Y. & M. V. R. Co. v. Boone, 111 Miss. 881, 72 South. 777. [3] We note the appellant points out that the testimony for the plaintiff is weak and is overcome by the opposite proof in the case, and therefore no recovery should be allowed to stand. While we think the case has some circumstances in it which might lead to the belief that the claim for damages is not wholly well founded, yet we are not prepared to say the testimony of Miss Volking is unbelievable or is so unreasonable as to be repulsive to the truth as conceived by the ordinary mind. It is true she continued in the employment for several months before leaving it and bringing this suit, and her conduct, as shown by the record, in the meantime was indicative that she did not think she had been substantially wronged warranting a suit for damages. And it is also in evidence that she was heavily dressed, under and outer, with a sweater and an overcoat in the store on the day she claims she suffered the cold; and the heat could have been turned on by employees in the store, if the store in fact was cold, and none of the other employees experienced the cold condition that the plaintiff claims existed on that day. She also could have gone home any time. [4] The act of Mr. Anderson, as testified to by Miss Volking, in turning off the heat, opening the doors, and turning on the fans on a freezing day, was certainly remarkable for a sane man to do who was intrusted with On Suggestion of Error. [5, 6] It is suggested by the appellee in this case that we erred in not remanding the case for a trial on the amount of damages only, since we had decided that the liability of the appellant was established. We think the suggestion of error is well taken on this point, and after a careful consideration of the competent proof in the record as to the amount of damages sustained by the appellee we are of opinion the amount allowed was excessive, and if the appellee will enter a remittitur here reducing the amount to $500 the case will be affirmed; otherwise, it will be reversed and remanded for trial on the question of damages alone. Sustained and affirmed, with remittitur. 1 STONER & CO. v. BLOCTON EXPORT (Supreme Court of Mississippi, Division A. April 28, 1924. Suggestion of Error Overruled May 19, 1924.) (Syllabus by the Court.) 1. Commerce 8(1)-Statutes and regulations of Interstate Commerce Commission binding on both federal and state courts. Legislation by Congress under commerce clause of the federal Constitution (art. 1, § 8, cl. 3), as well as administrative orders for the regulation of interstate carriers adopted by the Interstate Commerce Commission in pursuance of such legislation, are controlling upon both federal and state courts. 2. Sales 172-Seller prevented from shipping to purchaser because of subsequent car service orders excused from performance. Though it be not provided for in the contract, still, if a subsequent change is made in the law whereby performance of the contract becomes unlawful, its performance is excused. Under this principle, if the seller of coal is prevented from shipping to the purchaser because of a subsequent car service order of the Interstate Commerce Commission, the seller is excused from the performance of the contract even though the contract did not provide against such a contingency. 3. Commerce 88-Preferential car service order of Interstate Commerce Commission, construed. The Interstate Commerce Commission the management of such an important busi-passed a preferential car service order known For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes as service order No. 23 as amended July 25, In the view taken by the court it becomes 1922, regulating the furnishing of cars by interstate common carriers for the loading and carrying of coal, which put such car service into five classes, each class constituting a paragraph in itself and being followed by "and subject thereto in the order of priority." Class 2 contained clauses (a), (b), (c), and (d), and at the end of the paragraph constituting class 2 there was this language: "Note. - It is not intended by this paragraph to give any priority as between clauses (a), (b), (c) and (d) hereof." Held, that the language at the conclusion of each of said five classes, "and subject thereto in the order of priority," meant that each class stated in said car service order was to be given priority in the furnishing of cars over those classes following in numerical order, and that the note attached to class 2 was controlling as to the clauses in said class, and therefore there was no priority as between clauses therein (a), (b), (c), and (d). 4. Sales 4182, 7)-Measure of damages for failure to deliver stated; purchaser not required to buy elsewhere. A purchaser of coal, in order to recover for the loss suffered by him on account of the failure of the seller to ship such coal according to contract, is not required to go out into the market and supply himself with the coal which the seller had failed to ship according to contract, but had the right to treat the contract as breached by the seller, and the measure of the purchaser's damages is the difference between the contract price of the coal and the market price at the time and place of delivery. Appeal from Chancery Court, Lefore County; C. L. Lomax, Chancellor. Suit by Stoner & Co. against the Blocton Export Coal Company. From a decree for defendant, plaintiffs appeal. Reversed and remanded. Alfred Stoner, of Greenwood, for appellants. Pollard & Hamner, of Greenwood, for appellee. ANDERSON, J. Appellants, Stoner & Co., sued appellee, Blocton Export Coal Company. a foreign corporation, in the chancery court of Leflore county, for damages in the sum of $1,758.60 claimed to have been suffered by appellants on account of an alleged breach of contract by appellee, by the terms of which appellee sold and agreed to ship to appellants during the spring and summer of 1922 a quantity of coal for household use. Appellee answered making its answer a crossbill, denying the material allegations of appellants' bill, and seeking to recover from appellants a balance due on open account for coal theretofore delivered to appellants under said contract. There was a trial on the pleadings and proofs, and a decree rendered dismissing appellants' bill and awarding appellee a recovery for the amount claimed from appellants by said cross-bill, from which decree appellants prosecute this appeal. necessary to dispose of only two questions discussed in the briefs of counsel representing the respective parties. They are: First, whether appellee was justified in failing to fulfill said contract, by a certain order of the Interstate Commerce Commission governing the coal-carrying railroads of the country, which order will be hereinafter specifically set out; second, if appellee breached its contract, what is the measure of its liability to appellants? We will discuss these questions in the order stated. The facts necessary to be understood in order to determine the first question are as follows: Appellee was engaged in the coal business in Alabama, selling its customers in Mississippi and elsewhere. Appellants were engaged in the retail coal business at Greenwood, in this state. On the 5th of April, 1922, appellants and appellee entered into a written contract by the terms of which appellee agreed to sell and ship to appellants, as ordered, from 15 to 25 cars of lump coal at prices named in said contract. These shipments were to be made during the spring and summer of 1922 as ordered by the appellants. Several carload shipments were made as ordered. Then shipments were ordered by appellants which were not made by appellee. This occurred after August 5, 1922, the date of the order of the Interstate Commerce Commission which appellee relied on as a justification for failing to make shipments as ordered. These orders from appellants thereafter continued, and appellee failed to comply therewith until the 21st day of October, 1922, when appellants advised appellee that they were compelled to consider the contract as breached by appellee. The contract in question made no provision for failure to ship coal on account of strike, car shortage, or other contingency. Notwithstanding that fact, however, appellee undertakes to justify its failure to make shipments as provided in said contract, by virtue of an amendment to car service order No. 23 by the Interstate Commerce Commission, which appellee claims had the force and effect of law, and that under which the coal-carrying railroads of the country were prohibited from furnishing cars for shipments of coal to retail dealers for household use, except subject to prior rights of certain consumers. The coal purchased by appellants from appellee was lump, bituminous coal which had passed over screens with openings of four inches, or larger, and was for household use. The order of the Interstate Commerce Commission relied on by appellee as justifying its failure to ship the coal in question, so far as necessary to consider, is in the following language: "It is ordered, that paragraph numbered 7 of the said service order No. 23 adopted July 25, 1922, be, and it is hereby amended and supplemented to read as follows effective on and after August 5, 1922: (100 So.) "(7) That in the supply of cars to mines upon the lines of any coal-loading carrier, such carrier is hereby authorized and directed, to place, furnish, and assign such coal mines with cars suitable for the loading and transportation of coal in succession as may be required for the following classes of purposes, and in following order of classes, 'namely: "Class 1. For such special purposes as may from time to time be specially designated by the Commission or its agent therefor. In designating special purposes under this reservation, the Commission or its agent will designate the class of relative priority, as class 1, class 2, class 3, class 4, or class 5, which such special purpose or particular shipment or ship ments shall receive. "And subject thereto in order of priority: "Class 2. (a) For fuel for railroads and other common carriers, and for bunkering ships and vessels; (b) for public utilities which directly serve the general public under a fran sion in pursuance of such legislation by Congress. [2] The above car service order is that character of administrative order, and therefore both state and federal courts are bound to enforce it. And if because of said car service order of the Interstate Commerce Commission appellee was prevented from shipping the coal in question to appellants, then appellee had a complete defense to this action, because, as held by this court, which is in line with the authorities generally, that even though it be not provided for in the contract, still if a subsequent change is made in the law whereby performance of the con tract becomes unlawful, its performance is excused. Piaggio v. Somerville, 119 Miss. 6, 80 South. 342. [3] The sharp difference between appellants and appellee is as to the meaning of the car chise therefor, with street and interurban service order in question. Appellants conrailways, electric power and light, gas, water, tend that said order provides for five classes and sewer works; ice plants which directly of coal shipments, and preference is given to serve the public generally with ice, or supply each class in the order named as follows: refrigeration for human food stuffs; hospi- Class 1 has preference over four classes tals; (c) for the United States, state, county, or municipal governments, and for their hospitals, schools, and for their other public institutions-all to the end that such common carriers, public utilities, quasi-public utilities, and governments may be kept supplied with coal for current use for such purposes, but not for storage, exchange, or sale; (d) bituminous coal which has passed over screens of four inches or larger opening, coke, and anthracite coal, to be shipped to retail dealers for household use. "Note. It is not intended by this paragraph to give any priority as between clauses a, b, c, and d hereof, "And subject thereto in order of priority: "Class 3. (As to each coal-loading carrier which reaches mines in Pennsylvania, Ohio, West Virginia, Kentucky, Tennessee, and Alabama.) For bituminous coal consigned to any Lake Erie port for transhipment by water to ports upon Lake Superior. "And subject thereto in order of priority: "Class 4. (As to all such common carriers by railroad.) Coal for the production and manufacture of foodstuffs and medicines and for the manufacture of containers therefor, for daily use but not for storage, exchange, or sale. "And subject thereto in order of priority: "Class 5. Other purposes. "No coal embraced in classes 1, 2, 3, or 4 shall be subject to reconsignment or diversion except for some purpose in the same class or a superior class in the order of priority herein prescribed." [1] Before proceeding further with a discussion of this question, it will probably be well to have in mind the following principles: Legislation by Congress under the commerce clause of the Constitution (article 1, § 8, cl. 3) is the law of the land. It is controlling both on the state and federal courts. The same is true of all administrative orders following it; class 2 is next in preference with priority over all classes following it; and the same is true of class 3 and class 4, class 5 being subject to preference in favor of all four classes preceding it. That the language in said service order following each class, namely, "And subject thereto in the order of priority," means simply that the five classes are to have priority in the order named. Furthermore, appellants contend that this is made plain by the note following class 2 in said order, which class 2 covers the character of coal here involved, which note is in the following language: "Note.It is not intended by this paragraph to give any priority as between clauses a, b, c, and d hereof." Claused of class 2 covers the character of the coal involved in this cause, to wit, bituminous lump coal shipped to retail dealers for household use. Appellants' contention is that all four of the clauses in class 2 of this order, which are listed a, b, c, and d, are on a parity; that no one has preference over the others. On the other hand, appellee contends that said three subdivisions or clauses of class 2 of said order constitutes three distinct sub classes, each in the order stated having preference over those following. The trouble, however, with the contention of appellee is the plain unambiguous language of the note attached to class 2 above quoted. This note, which is a part of said order, simply says in so many words that there is to be no priority as between clauses a, b, c, and d of said class. The coal involved here came within clause d of said class 2. Furthermore, appellants' construction of the order is borne out by the fact that it is more reasonable than that for the regulation of interstate carriers, of appellee. We hold that there is no prefpassed by the Interstate Commerce Commis- erence between said clauses; that the lan |