(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. ·

F. W. WOOLWORTH CO., Inc., et al. v. VOL-
KING. (No. 24056.)

(Supreme Court of Mississippi, Division A.
April 14, 1924. Suggestion of Error Sus-
tained and Affirmed with Remittitur, May 19,
1924.)

(Syllabus by the Court.)

Tucker & Tucker, of Woodville, for ap. Master and servant 285 (5)-Evidence to pellant.

D. C. Bramlette, of Woodville, for appellee.
A. H. Jones, of Woodville, amicus curiæ.

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.

show employer's failure to heat room caused injuries to employee's eyes, throat, and nose held insufficient for jury.

In an action for injuries to employee's nose, throat, and eyes alleged to have been caused by employer's failure to maintain sufficient heat in room in which employee worked, in which there was no expert evidence to show a causal connection between the cold contracted by the employee and the subsequent injury to her nose, eyes, and throat, and the only testimony relevant thereto was that of the employee herself that the cold had caused such injuries, without a reasonable basis of facts for the conclusion, the evidence was insufficient for submission to jury.

2. Evidence 501 (9)-Nonexpert's conclusion that cold caused injuries to eyes, nose, and throat held incompetent without facts on which to found it.

3. Appeal and error 1003-Employee's testimony held not so unreasonable as to warrant appellate court in disturbing verdict.

In an action for injuries to employee claimto have been caused by a cold contracted on employer's failure to provide sufficient heat in store in which employee was working, employee's testimony that store manager turned off heat, opened the doors, and turned on the fans on a freezing day, held not so unbelievable or unreasonable as to warrant appellate court in disturbing finding of jury in accordance therewith.

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 In action for injuries to employee's nose, judgment of the circuit court must be reversed and the appeal to the circuit court eyes, and throat alleged to have been caused by employer's failure to heat room in which emdismissed under the authority of Moller-ployee was working, admission of employee's Vanderboom Lumber Co. v. Board of Super-testimony that the cold contracted by her causvisors of Attala County, rendered by Divi-ed the injuries, without a reasonable basis of sion A, April 28, 1924, 99 South. 823, which facts upon which to found the conclusion, held opinion holds that no appeal would lie until error. 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: "Section 81, Code of 1906, section 61, Hem-ed ingway's Code, and sections 6, 7, 8, 9, and 10, chapter 323, Laws of 1920 (amendment to State Tax Commission Act) sections 7769d1 to 7769h1 inclusive, Hemingway's Supplement 1921, are to be construed together in determining when a taxpayer aggrieved at a decision of the board of supervisors as to his assessment for taxes has the right of appeal to the circuit court, and so construing said statutes, held that the order of the board of supervisors at its August equalization meeting approving the assessment rolls is not final, but only interlocutory, and there is no right of appeal by the taxpayer until the final order of the board of supervisors approving such rolls, and such final order cannot be entered earlier than the meeting of the board at which the instructions of the State Tax Commission in reference to horizontal increases and decreases 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."

Reversed, and appeal from the board of supervisors to the circuit court dismissed.

4. Appeal and error 1001 (1)—Jury's finding on competent evidence not disturbed.

Finding by jury will not be disturbed on appeal by the Supreme Court, where the evidence upon which the finding is based is competent and sufficient to support the finding.

5.

On Suggestion of Error. Appeal and error 1178(6)-Case remanded for trial merely as to damages, where Supreme Court has determined that defendant is liable.

The Supreme Court, on deciding, on appeal from judgment for plaintiff, that defendant is liable to plaintiff, but not for certain injuries submitted to jury, should remand case merely for trial as to amount of damages.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

6. Damages ›130(1)—$2,000 verdict for severe 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.

its to the doctor for further treatment of her 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
F. W. Woolworth Company, Inc., and others.
Judgment for plaintiff, and defendants ap-
peal. Affirmed, with remittitur.

J. A. Leathers, of Gulfport, for appellants.
L. W. Maples, of Gulfport, for appellee.

after the 25th of January. She also testified the cold she contracted caused her to have sore eyes and a sore throat. The testimony court instructed the jury that they might was objected to by the defendant below. The 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 opin

sulted 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 Mission alone that these troubles and injuries reCora 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 physical pain, and injuries to her nose, throat, and

eyes.

The appellant urges reversal on several grounds among them being that the court erred in admitting incompetent testimony, 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 previously; but Anderson refused to turn the heat on again and allowed the occupants of the store to suffer the discomfort of the cold dur-proximately resulted in any injury or suffering the day.

[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.

The appellant urges that no recovery can be had for any amount because the negligence complained of is not shown to have

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

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 | comfortable place in which to work. But it leaving the employment filed this suit to re- is our judgment the testimony of the appellee cover damages for the injury and suffering alone, in which she gave her opinion or concaused by the conduct of Mr. Anderson, the clusion that the injury to her nose necessimanager in charge of the Woolworth busi- tating its being burnt out, and the trouble ness. Miss Volking testified she had an op- with her eyes and throat several weeks after eration about two months before the 25th of the exposure, was caused by the cold, was January, in which the doctor had cut some not sufficient to establish a causal connection bones out of her nose, and that this trouble between the cold and the subsequent injuries had not healed, and she made continued vis-complained of. She did not put the doctors

(100 So.)

not an impossible one, and the jury had the right to believe it, and their finding of fact is not to be disturbed by this court where the evidence upon which the finding is based is competent and sufficient to support the finding.

on the stand who attended her, who doubt ness. However, the story of the plaintiff is 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.

dinary mind.

[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 orIt 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 the management of such an important busi

Reversed and remanded.

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 We think the appellant was established. 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.

STONER & CO. v. BLOCTON EXPORT
COAL CO. (No. 24062.)

(Supreme Court of Mississippi, Division A.
April 28, 1924. Suggestion of Error
Overruled May 19, 1924.)

(Syllabus by the Court.)

I. 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 becomes unlawful, its performance is excused. the law whereby performance of the contract 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 passed a preferential car service order known

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

In the view taken by the court it becomes 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.

as service order No. 23 as amended July 25, 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 to determine the first question are as The facts necessary to be understood in 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 418 (2,7)—Measure of damages for failure to deliver stated; purchaser not re-into a written contract by the terms of which quired 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.

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 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

Appeal from Chancery Court, Leflore Coun- as ordered. These orders from appellants ty; C. L. Lomax, Chancellor.

Suit by Stoner & Co. against the Blocton Export Coal Company. From a decree for defendant, plaintiffs appeal. Reversed and

remanded.

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

Alfred Stoner, of Greenwood, for appel- ship coal on account of strike, car shortage, lants.

or other contingency. Notwithstanding that

Pollard & Hamner, of Greenwood, for ap- fact, however, appellee undertakes to justify pellee.

its failure to make shipments as provided in said contract, by virtue of an amendment ANDERSON, J. Appellants, Stoner & Co., to car service order No. 23 by the Interstate sued appellee, Blocton Export Coal Company. Commerce Commission, which appellee claims a foreign corporation, in the chancery court had the force and effect of law, and that unof Leflore county, for damages in the sum der which the coal-carrying railroads of the of $1,758.60 claimed to have been suffered country were prohibited from furnishing cars by appellants on account of an alleged breach for shipments of coal to retail dealers for of contract by appellee, by the terms of which household use, except subject to prior rights appellee sold and agreed to ship to appel- of certain consumers. The coal purchased lants during the spring and summer of 1922 by appellants from appellee was lump, bia quantity of coal for household use. Ap-tuminous coal which had passed over screens pellee answered making its answer a crossbill, denying the material allegations of ap pellants' 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 plead-consider, is in the following language: ings and proofs, and a decree rendered dis

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

missing appellants' bill and awarding appel- of the said service order No. 23 adopted July "It is ordered, that paragraph numbered 7 lee a recovery for the amount claimed from 25, 1922, be, and it is hereby amended and supappellants by said cross-bill, from which de-plemented to read as follows effective on and cree appellants prosecute this appeal. after August 5, 1922:

(100 So.)

"(7) That in the supply of cars to mines ↑ sion in pursuance of such legislation by Conupon the lines of any coal-loading carrier, such gress. 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:

[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 The coal involved here came within clause 1, § 8, cl. 3) is the law of the land. It is con- d of said class 2. Furthermore, appellants' trolling both on the state and federal courts. construction of the order is borne out by the The same is true of all administrative orders 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