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(100 So.) Proceedings by the Board of Supervisors of Wilkinson County, increasing an assess F. W. WOOLWORTH CO., Inc., et al. v. VOLment against the Foster Creek Lumber &

KING. (No. 24056.) Manufacturing Company. From a judgment on appeal, striking a portion of the order in- (Supreme Court of Mississippi, Division A.

April 14, 1924, Suggestion of Error Suscreasing the assessment, the County appeals.

tained and Affirmed with Remittitur, May 19, Reversed, and appeal from Board of Super

1924.) visors to circuit court dismissed."

(Syllabus by the Court.) i ; Tucker & Tucker, of Woodville, for ap 1. Master and servant 285(5)-Evidence to pellant.

show employer's failure to heat room caused D. C. Bramlette, of Woodville, for appellee.

injuries to employee's eyes, throat, and nose A, H. Jones, of Woodville, amicus curiæ. held insufficient for jury.

In an action for injuries to employee's pose, ETHRIDGE, J. The Foster Creek Lumber throat, and eyes alleged to have been caused by & Manufacturing Company took an appeal to employer's failure to maintain sufficient heat in the circuit court from an order of the board

room in which employee worked, in which there of supervisors rendered at their equalization was no expert evidence to show a causal conmeeting in August, 1923, increasing the as- nection between the cold contracted by the emsessed value of its timber, and the circuit (ployee and the subsequent injury to her nose, court, on motion of the appellee, struck out eyes, and throat, and the only testimony relethat portion of the board's order making a 20 vant thereto was that of the employee herself per cent. raise on the timber on all lands in that the cold had caused such injuries, without the county, including the appellee's from the evidence was insufficient for submission to

a reasonable basis of facts for the conclusion, which judgment of the circuit court the coun

jury. ty appeals here.

The appeal from the order of the board of 2. Evidence 501(9)—Nonexpert's condu. supervisors was premature, because made

sion that cold caused injuries to eyes, noso, before the tax rolls had finally been acted

and throat held incompetent without facts on

which to found it. on by the State Tax Commission. And the judgment of the circuit court must be re

In action for injuries' to employee's nose, versed and the appeal to the circuit court eyes, and throat alleged to have been caused by dismissed under the authority of Moller- employer's failure to heat room in which em

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 3. Appeal and error w 1003–Employee's tes. Commission has returned its order to the

timony held not so unreasonable as to warrant county board of supervisors. The syllabus appellate court in disturbing verdict. of the opinion in said case is as follows: 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 ingway's Code, and sections 6, 7, 8, 9, and 10, employer's failure to provide sufficient heat in chapter 323, Laws of 1920 (amendment to State store in which employee was working, emTax Commission Act) sections 776901 to ployee's testimony that store manager turned 7769h1 inclusive, Hemingway's Supplement off heat, opened the doors, and turned on the 1921, are to be construed together in deter- fans on a freezing day, held not so unbelievable mining when a taxpayer aggrieved at a deci- or unreasonable as to warrant appellate court sion of the board of supervisors as to his as- in disturbing finding of jury in accordance theresessment for taxes has the right of appeal to with. the circuit court, and so construing said statutes, held that the order of the board of su- 4. Appeal and error w 1001(1),Jury's finding pervisors at its August equalization meeting ap

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on competent evidence not disturbed. proving the assessment rolls is not final, but Finding by jury will not be disturbed on aponly interlocutory, and there is no right of ap- peal by the Supreme Court, where the evidence peal by the taxpayer until the final order of upon which the finding is based is competent the board of supervisors approving such rolls, and sufficient to support the finding. and such final order cannot be entered earlier than the meeting of the board at which the

On Suggestion of Error. instructions of the State Tax Commission in reference to horizontal increases and decreases 5, Appeal and error (1178(6)-Case remandin the assessments are required to be carried

ed for trial merely as to damages, where Su. out by the board. The time limit for the tak

preme Court has determined that defendant ing of such appeals being prescribed by section

is liable. 10, chapter 323, Laws of 1920, section 7769h1,

The Supreme Court, on deciding, on appeal Hemingway's Supplement, 1921."

from judgment for plaintiff, that defendant is

liable to plaintiff, but not for certain injuries Reversed, and appeal from the board of submitted to jury, should remand case merely supervisors to the circuit court dismissed. for trial as to amount of damages.

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

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6. Damages On 130(1)-$2,000 verdict for se- its to the doctor for further treatment of her vere cold held excessive.

nose up to the time of the alleged injury on $2,000 verdict for severe cold, contracted the said 25th day of January, 1923. She because of defendant employer's negligent fail. claimed the cold she contracted at the store ure to provide sufficient heat, held excessive, on the day mentioned caused her nose to beand subject to reduction to $500.

come 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.

after the 25th of January. She also testified Action by Miss Cora Volking against the the cold she contracted caused her to have F. W. Woolworth Company, Inc., and others. sore eyes and a sore throat. The testimony Judgment for plaintiff, and defendants ap

was objected to by the defendant below. The peal. Affirmed, with remittitur.

court instructed the jury that they might

assess damages for the alleged injuries to J. A. Leathers, of Gulfport, for appellants. the nose, eyes, and throat. The plaintiff beL. W. Maples, of Gulfport, for appellee.

low did not introduce her doctors to show by

their expert testimony that the cold she con-/ HOLD DN, J. This is an appeal by F. W. tracted caused the injury to the nose, throat, Woolworth Company from a judgment for and eyes, but she merely gave it as her opin$2,000 rendered against it in favor of Mission alone that these troubles and injuries reCora Volking as damages for the willful neg. sulted from the cold that she had contracted ligence of appellant in failing to furnish her on that day in the Woolworth store. a reasonably safe and comfortable place in The appellant urges reversal on several which to work, resulting in her contracting a grounds among them being that the court severe cold, which caused her to suffer physi-erred in admitting incompetent testimony, cal pain, and injuries to her nose, throat, and granting certain instructions, and setting eyes.

aside the judgment granting a new trial to The facts of the case, as shown by testi- appellant while appellant was absent and mony of appellee, necessary to an understand without notice; and that the court erred in ing of the decision, are, in short, as follows: refusing to grant a peremptory instruction to On and before January 25, 1923, Miss Volk- the appellant on the ground the evidence was ing was employed as cashier and bookkeeper insufficient to show that the acts of Anderfor the Woolworth Company in Gulfport. On son, the manager for Woolworth, was the the date mentioned the weather was very proximate cause of the injuries complained cold, and after Miss Volking had started up of by Miss Volking. on her duties that morning, Mr. Anderson, [1] We shall pass upon one point only, the manager of the Woolworth Company shut which will result in a reversal, and the other off the heating radiators in the store, opened errors complained of may not arise on a new the doors, and turned on the ceiling fans, trial, and that is the question of whether or causing the storeroom to become very cold not the testimony in the case was sufficient and uncomfortable. The appellee complain to show a causal connection between the cold ed to Mr. Anderson about turning off the contracted by Miss Volking and the subseheat and asked that it be turned on again be- quent injury to her nose, eyes, and throat cause she was cold, and that she had had an complained of by her. operation upon her nose several months previ- Tue 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.

ing to the appellee; but we disagree with this Miss Volking testified that she became chil-contention, because we think the testimony ly and sick on account of the cold tempera- is competent and sufficient to show that she ture in the store and contracted a cold, had contracted a bad cold on account of having to leave at 5 o'clock in the afternoon, and was to remain in the cold building during the day sick in bed for two days thereafter on ac- in question-conceding for the purposes of count of the cold she had contracted. She this case (though not deciding because the came back to work, however, at noon on the point is not raised) that appellant owed apsecond day and remained in the service of pellee the duty to furnish her a reasonably the appellant for several months, and after comfortable place in which to work. But it leaving the employment filed this sụit 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 viso complained of. She did not put the doctors

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(100 So.) on the stand who attended her, who doubt ness. However, the story of the plaintifr is less could have furnished expert testimony not an impossible one, and the jury had the of probative value as to whether or not the right to believe it, and their finding of fact cold had caused the other troubles. Her is not to be disturbed by this court where the opinion on the subject, without a basis of evidence upon which the finding is based is facts therefor, amounted to very little more competent and sufficient to support the findthan mere conjecture or guesswork, and is ing. not to be solely relied upon to reasonably es- Reversed and remanded. tablish the causal connection between the contracted cold and the nose, throat, and

On Suggestion of Error. eye troubles. [2] Miss Volking testified she had an oper

[5, 6] It is suggested by the appellee in this ation in which a quantity of bone was taken case that we erred in not remanding the case out of her nose two months prior to the ex- for a trial on the amount of damages only, posure in question, and that she was not en- since we had decided that the liability of the

We think the tirely well from this operation at the time appellant was established. she took the cold. A bad 'cold from which a suggestion of error is well taken on this person is confined for a few days does not point, and after a careful consideration of necessarily, of common knowledge, result in the competent proof in the record as to the sore eyes, or the kind of an injury to her amount of damages sustained by the appellee nose which she complained of and subse we are of opinion the amount allowed was quently had burned out. It is possible that excessive, and if the appellee will enter a rethese injuries could have proximately result. mittitur here reducing the amount to $500 ed from the cold, still the proof offered, which the case will be affirmed; otherwise, it will was merely the unsupported opinion of a be reversed and remanded for trial on the nonexpert without a reasonable basis of facts question of damages alone. upon which to found it, was not sufficient

Sustained and affirmed, with remittitur. nor competent to establish this fact, and we think the court erred in admitting the tes. timony and permitting the jury to allow damages for the injuries to the nose, eyes, and throat. Y. & M. V. R. CO. V. Boone, 111

STONER & CO. V. BLOCTON EXPORT Miss. 881, 72 South. 777.

COAL CO. (No. 24062.) [3] We note the appellant points out that (Supreme Court of Mississippi, Division A. the testimony for the plaintiff is weak and

April 28, 1924. Suggestion of Error is overcome by the opposite proof in the case,

Overruled May 19, 1924.) and therefore no recovery should be allowed to stand. While we think the case has some

(Syllabus by the Court.) circumstances in it which might lead to the I. Commerce 8(1)-Statutes and regulabelief that the claim for damages is not

tions of Interstate Commerce Commission wholly well founded, yet we are not prepared

binding on both federal and state courts. to say the testimony of Miss Volking is un

Legislation by Congress under commerce believable or is so unreasonable as to be clause of the federal Constitution (art. 1, § 8, repulsive to the truth as conceived by the or regulation of interstate carriers adopted by

cl. 3), as well as administrative orders for the dinary mind. It is true she continued in the Interstate Commerce Commission in purthe employment for several months before suance of such legislation, are controlling upon leaving it and bringing this suit, and her con- both federal and state courts. duct, as shown by the record, in the meantime was indicative that she did not think 2. Sales Eww172_Seller prevented from shipshe had been substantially wronged war

ping to purchaser because of subsequent car ranting a suit for damages. And it is also in

service orders excused from performance. evidence that she was heavily dressed, under

Though it be not provided for in the conand outer, with a sweater and an overcoat in tract, still, if a subsequent change is made in the store on the day she claims she suffered becomes unlawful, its performance is excused.

the law whereby performance of the contract the cold; and the heat could have been turned Under this principle, if the seller of coal is on by employees in the store, if the store prevented from shipping to the purchaser bein fact was cold, and none of the other em- cause of a subsequent car service order of the ployees experienced the cold condition that Interstate Commerce Commission, the seller is the plaintiff claims existed on that day. She excused from the performance of the contract also could have gone home any time.

even though the contract did not provide [4] The act of Mr. Anderson, as testified against such a contingency. to by Miss Yolking, in turning off the heat, 3. Commerce 88–Preferential car service opening the doors, and turning on the fans order of Interstate Commerce Commission, on a freezing day, was certainly remarkable construed. for a sane man to do who was intrusted with The Interstate C8mmerce Commission the management of such an important busi- | passed a preferential car service order known

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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 in- necessary to dispose of only two questions terstate common carriers for the loading and discussed in the briefs of counsel representcarrying of coal, which put such car service ing the respective parties. They are: First, into five classes, each class constitutinga whether appellee was justified in failing to paragraph in itself and being followed by "and subject thereto in the order of priority." Class fulfill said contract, by a certain order of the 2 contained clauses (a), (b), (c), and (d), and

Interstate ommerce Commission governing at the end of the paragraph constituting class the coal-carrying railroads of the country, 2 there was this language: "Note.-It is not which order will be hereinafter specifically intended by this paragraph to give any prior- set out; second, if appellee breached its conity as between clauses (a), (b), (c) and (d) tract, what is the measure of its liability to hereof." Held, that the language at the con- appellants? We will discuss these questions clusion of each of said five classes, "and sub- in the order stated. ject thereto in the order of priority,” meant

The facts necessary to be understood in orthat each class stated in said car service order was to be given priority in the furnishing der to determine the first question are as of cars over those classes following in numerio follows: Appellee was engaged in the coal cal order, and that the note attached to class business in Alabama, selling its customers 2 was controlling as to the clauses in said class, Mississippi and elsewhere. Appellants and therefore there was no priority as between were engaged in the retail coal business at clauses therein (a), (b), (c), and (d).

Greenwood, in this state. On the 5th of 4. Sales Con418(2,7)-Measure of damages for April, 1922, appellants and appellee entered

failure to deliver stated; purchaser not re- into a written contract by the terms of which quired to buy elsewhere.

appellee agreed to sell and ship to appellants, A purchaser of coal, in order to recover for as ordered, from 15 to 25 cars of lump coal the loss suffered by him on account of the fail- at prices named in said contract. These ure of the seller to ship such coal according to shipments were to be made during the spring contract, is not required to go out into the mar- and summer of 1922 as ordered by the appelket and supply himself with the coal which the lants. Several carload shipments were made seller had failed to ship according to contract, as ordered. Then shipments were ordered but had the right to treat the contract as by appellants which were not made by appelbreached by the seller, and the measure of the purchaser's damages is the difference between lee. This occurred after August 5, 1922, the the contract price of the coal and the market date of the order of the Interstate Commerce price at the time and place of delivery. 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.

thereafter continued, and appellee failed to

comply therewith until the 21st day of OctoSuit by Stoner & Co. against the Blocton ber, 1922, when appellants advised appellee Export Goal Company. From a decree for that they were compelled to consider the condefendant, plaintiffs appeal. Reversed and tract as breached by appellee. The contract remanded.

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 cross- with openings of four inches, or larger, and bill, denying the material allegations of ap was for household use. The order of the pellants' bill, and seeking to recover from ap- Interstate Commerce Commission relied on pellants a balance due on open account for by appellee as justifying its failure to ship coal theretofore delivered to appellants under the coal in question, so far as necessary to said contract. There was a trial on the plead- consider, is in the following language: ings and proofs, and a decree rendered dismissing 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: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(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 [2] The above car service order is that place, furnish, and assign such coal mines with character of administrative order, and therecars suitable for the loading and transportation fore both state and federal courts are bound of coal in succession as may be required for the following classes of purposes, and in fol. to enforce it. And if because of said car lowing order of classes, 'namely:

service order of the Interstate Commerce "Class 1. For such special purposes as may Commission appellee was prevented from from time to time be specially designated by shipping the coal in question to appellants, the Commission or its agent therefor. In then appellee had a complete defense to this designating special purposes under this reser- action, because, as held by this court, which vation, the Commission or its agent will des- is in line with the authorities generally, that ignate the class of relative priority, as class 1, even though it be not provided for in the class 2, class 3, class 4, or class 5, which such contract, still if a subsequent change is made special purpose or particular shipment or ship in the law whereby performance of the conments shall receive.

And subject thereto in order of priority: tract becomes unlawful, its performance is

"Class 2. (a) For fuel for railroads and excused. Piaggio v. Somerville, 119 Miss, 6, other common carriers, and for bunkering ships 80 South. 342. and vessels; (b) for public utilities which di- [3] The sharp difference between appellants rectly serve the general public under a fran- 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 hospi- following it; class 2 is next in preference tals, schools, and for their other public insti- with priority over all classes following it; tutions—all to the end that such common car- and the same is true of class 3 and class 4, riers, public utilities, quasi-public utilities, and class 5 being subject to preference in favor governments may be kept supplied with coal for of all four classes preceding it. That the current use for such purposes, but not for language in said service order following each storage, exchange, or sale; (d) bituminous coal class, namely, “And subject thereto in the orwhich has passed over screens of four inches der of priority,” means simply that the five or larger opening, coke, and anthracite coal, to be shipped to retail dealers for household classes are to have priority in the order

named. Furthermore, appellants contend "Note. It is not intended by this paragraph that this is made plain by the note following to give any priority as between clauses a, b, c class 2 in said order, which class 2 covers and d hereof,

the character of coal here involved, which "And subject thereto in order of priority: note is in the following language: "Note.

"Class 3. (As to each coal-loading carrier It is not intended by this paragraph to give which reaches mines in Pennsylvania, Ohio, any priority as between clauses a, b, c, and West Virginia, Kentucky, Tennessee, and Ala- a hereof." Clause d of class 2 covers the bama.) For bituminous coal consigned to any character of the coal involved in this cause, Lake Erie port for transhipment by water to

to wit, bituminous lump coal shipped to re ports upon Lake Superior. "And subject thereto in order of priority:

tail dealers for household use. “Class 4. (As to all such common carriers Appellants' contention is that all four of by railroad.) Coal for the production and manu- the clauses in class 2 of this order, which facture of foodstuffs and medicines and for the are listed a, b, c, and d, are on a parity; manufacture of containers therefor, for daily that no one has preference over the others. use but not for storage, exchange, or sale.

On the other hand, appellee contends that “And subject thereto in order of priority:

said three subdivisions or clauses of class 2 “Class 5. Other purposes. "No coal embraced in classes 1, 2, 3, or 4 of said order constitutes three distinct subshall be subject to reconsignment or diversion classes, each in the order stated having prefexcept for some purpose in the same class or erence over those following. The trouble, a superior class in the order of priority here- however, with the contention of appellee is in prescribed."

the plain unambiguous language of the note

attached to class 2 above quoted. This note, [1] Before proceeding further with a dis- which is a part of said order, simply says cussion of this question, it will probably be in so many words that there is to be no well to have in mind the following prin-priority as between clauses a, b, c, and d of ciples: Legislation by Congress under the said class. 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

use.

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