subject-matter or matters of the proposed legislation. The title of the act provides for the payment of the fees and taxes derived into the state highway fund and the county road fund, while the act itself provides that all such taxes shall be paid into the county road fund, and it is the contention of the appellant that this title is misleading as to a material provision of the act, and consequently the act is more directly in conflict with section 71 of the Constitution of 1890 than it would be if it had no title at all. Section 71 of the Constitution of 1890 provides, in part, as follows: "Every bill introduced into the Legislature shall have a title, and the title ought to indicate clearly the subject matter or matters of the proposed legislation." It has been held by this court that this constitutional provision that "every bill shall have a title" is mandatory, while the provision that the title "ought to indicate clearly the subject-matter of the proposed legislation" is only admonitory or advisory. In the case of the City of Jackson v. State, 102 Miss. 663, 59 South. 873, Ann. Cas. 1915A, 1213, in discussing the effect of the word "ought" in this provision, in connection with the holding of the court in the case of Levee Commissioners v. Insurance Co., 96 Miss. 832, 51 South. 2, the court used the following language: The judgment of the court below will therefore be affirmed. Affirmed. ALLISON et al. v. BURNHAM. (No. 24187.) (Supreme Court of Mississippi, Division A. June 16, 1924.) (Syllabus by the Court.j 1. Mortgages 37(2) That absolute deed was intended as mortgage may be shown by parol. That an absolute deed was intended to operate as a mortgage may be shown by parol. 2. Limitation of actions 60(6) — Debtor's suit to reform deed to third party by creditor, to whom debtor had conveyed land by deed intended as mortgage, held not barred by limitations. Where debtor conveyed land to creditor by absolute deed as security, the creditor to sell land or, if no sale was made, he was to have a one-fourth interest therein, debtor's suit to reform creditor's deed to third party purporting to convey more than a one-fourth interest and for partition of land between debtor and third party was not barred by limitations because brought more than 10 years after execution of accrued until execution of deed to third party. deed to creditor; the right of action not having Appeal from Chancery Court, Simpson County; T. P. Dale, Chancellor. Suit by G. M. Burnham against Mrs. Mary G. Allison and others. From decree overruling demurrer to bill, defendants appeal. Af firmed and remanded. Bee King, of Mendenhall, and R. N. Miller, of Hazelhurst, for appellants. J. P. & A. M. Edwards, of Mendenhall, for appellee. HOLDEN, J. This is an appeal from a decree overruling a demurrer to a bill to reform a deed and partite certain lands. "We think an examination of this case will show that the act there discussed had no title at all, but if it may be construed to hold that the courts are empowered to nullify acts of the legislature because, in the opinion of the court, the title does not indicate all it should indicate, we decline to follow it. The unwisdom of this rule is demonstrated by the criticisms of the title of the act, the subject of this litigation. The court was entirely warranted in holding that the act reviewed in Levee Commissioners v. Insurance Co., supra, had no title at all. There are many reasons to assume that the framers of the Constitution intended, by the The pertinent charges in the bill, which use of this word, to make impossible in this are admitted to be true by the demurrer, state that character of litigation so common in are that the appellee Burnham employed one some other states, as to almost create a judi- of the appellants, Mr. Miller, an attorney, to cial scandal. Being mindful of the fact that the file suit for him to recover a tract of 400 Legislature could be trusted to do some things without the advice, aid, or restraint of the acres of land valued at $4,000, with the agreecourts, the wise men who wrote the Constitu- ment that the attorney's fee for such servtion of 1890, after saying what ought to be ices should be $1,000, and to secure this fee done, left the sufficiency of title to the depart-appellee Burnham executed to Miller an abment commissioned to write the statute laws of solute deed to the land, but with the agree the state." The case of City of Jackson v. State, supra, was cited with approval and followed in the case of State v. Phillips, 109 Miss. 22, 67 South. 651, L. R. A. 1915D, 530, and we think these cases are decisive of the question now presented, and that the act is not violative of the provisions of Section 71 of the Constitution. ment and understanding that the deed was to operate only as a mortgage, and that Miller should sell the land at some future time, at a price to be fixed by Burnham and Miller together; and it was also understood that in the event a sale was not made within a reasonable time, then Miller was to have a onefourth undivided interest in the land. No sale was made of the land by Miller during a period of about seven years. Miller (100 So.) Emanuel Shaw was convicted of murder, and he appeals. Affirmed. Stone & Stone, of Coffeeville, for appellant. Harry M. Bryan, Asst. Atty. Gen., for the State. then sold the land to Mrs. Allison, appellant, [ executing to her an absolute deed, but fully advising her that he (Miller) only owned a one-fourth interest in the land and that the intention in the deed was to convey to Mrs. Allison only the one-fourth undivided interest owned by Miller, and that in drafting the deed a mistake was made in conveying all SYKES, P. J. Emanuel Shaw, the appelthe land instead of the one-fourth interest lant, was indicted, tried, and convicted of owned by Mr. Miller, and which was under- the crime of murder, and the jury disagreestood by the parties to be the only interesting as to his punishment, he was sentenced conveyed by him to Mrs. Allison. This suit was then instituted about eight years after the date of the deed from Miller to Mrs. Allison, to correct and reform the deed and to partition the land between appellee Burnham and Mrs. Allison. by the judgment of the court to the penitentiary for life, from which judgment this appeal is here prosecuted. The testimony for the state was to the effect that appellant went to the house occupied by three negro men at night, and upon coming into the room said, in effect, to the deceased, Roger Key, that he would teach him how to fool with another man's wife, The appellants contend the lower court erred in overruling the demurrer to the bill, because the transaction between Burnham and Miller as charged in the bill amounted and immediately began shooting him with to an express trust not in writing and therefore void, and, second, that the claim of Burnham was barred by the statute of limitations. [1] We think the grounds urged by the appellants are unsound, for the reason that the bill charges the deed from Burnham to Miller was intended as a mortgage, which fact may be shown by parol testimony. Fultz v. Peterson, 78 Miss. 128, 28 South. 829. [2] And we do not think the 10-year statute of limitation bars the suit of Burnham, because the statute did not begin to run against his claim to the land until Miller executed the deed to Mrs. Allison, at which time Burnham's right of action accrued, and the present suit was started about 8 years thereafter, which was within the 10-year period prescribed by the statute of limitation. a pistol; that Key at that time was sitting on a bench untying his shoes; that Key said nothing and made no hostile demonstration toward the appellant. The appellant testified that he went to the house occupied by these three negroes to remonstrate with all of them about their attentions to his wife; that he was armed for the purpose of protecting himself, if necessary, and especially because of the fact that Albert Key on that morning had threatened to shoot him; that immediately upon coming into the room deceased' made a hostile demonstration toward him with a pistol, whereupon he shot in selfdefense. On cross-examination the appellant was asked about testifying in the committing court of the justice of the peace, and whether he there testified to the deceased's trying to shoot him; and also that the deceased had a pistol. He stated in effect that he did. Therefore the judgment of the lower Court is affirmed, the cause remanded, and the ap-In rebuttal the state placed upon the stand pellants allowed 60 days in which to plead further after the mandate reaches the lower court. Affirmed and remanded. SHAW v. STATE. (No. 24270.) both the justice of the peace and the sheriff who heard this testimony in the committing trial. They testified in effect that the appellant did not say anything about the deceased having a pistol. It is contended by the appellant that the court erred in admitting this testimony in rebuttal; that the state should have introduced the sheriff and justice of the peace (Supreme Court of Mississippi, Division B. in making out its case. June 16, 1924.) (Syllabus by the Court.) Witnesses 380 (2)-Testimony of accused may be impeached by showing his contradictory testimony in committing court. When a defendant in a criminal case testi fies in his own behalf, his testimony may be impeached, just as that of any other witness by showing that he made contradictory statements in testifying in the committing court. Appeal from Circuit Court, Yalobusha County, First District; Greek L. Rice, Judge. The state proved all the facts and circumstances relating to the killing in the first instance by an eye-witness. The defendant then testified about the deceased trying to shoot him. It was proper for the state to introduce this testimony in rebuttal as im peaching testimony, to show that in the committing court he made contradictory statements, or at least that his testimony in the two courts was not the same. When the defendant takes the stand in his own behalf, he thereby becomes a witness in the case, and his testimony may be impeach For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes arose the law required the separation of white and colored passengers, and that where a sheriff was in charge of a person of the colored race that he was not entitled to ride ed by showing that he has made contradictory statements, just as that of any other witness. Steele v. State, 76 Miss. 387, 24 South. 910. This is the only assignment of error ar- in the white compartment with his negro gued by the appellant. We find no reversible error in the record, and the judgment of the lower court is affirmed. Affirmed. ILLINOIS CENT. R. Co. v. COX. (Supreme Court of Mississippi, Division B. (Syllabus by the Court.) 1. Carriers 319(3)-Liable in substantial damages for conductor's enforcement of separate coach law in offensive manner. prisoner, but was entitled to ride in the colored, passenger coach with his prisoner because his duty required him to safely keep his prisoner, and it was also held that where a servant of the railroad company enforcing the rule for the separation of the white and colored races uses insulting and offensive language to the passenger, or uses undue violence in enforcing the same, of the carrier is liable to the passenger for actual and punitive damages. On a remand of the case to the court below, it was tried on the sole question as to whether or not the conductor was insulting in enforcing this rule. The testimony for the plaintiff was substantially the same as in the former case as to this feature of the case. Where a carrier is required by law to pro- The plaintiff perhaps strengthened his testivide separate coaches for the white and col-mony somewhat as to the effect the language ored races and required to enforce the law, had upon him, as shown by the following it must do so in a reasonable manner, and, if testimony: a conductor in enforcing the rule curses a passenger or acts in an offensive and insulting manner, the carrier is liable for substantial damages, and recovery is not limited to nominal damages. 2. Carriers 319(3)-Courts will limit damages for insulting passenger in enforcement of separate coach law; verdict in excess of $1,000 for offensive and insulting manner of enforcement of separate coach law by conductor held excessive. While a carrier is liable for actual and punitive damages for insulting a passenger in the enforcement of the law or its rules, still the court will look to the whole case and consider the circumstances, and will restrain the award to reasonable limits. The facts of the case considered, a verdict in excess of $1,000 will be deemed excessive. "Q. Tell the jury what effect that had upon you. A. Made me very mad, not being in position to resist it. I think I went home and got sick. I was naturally humiliated, as I had never been treated in that manner before. I had been riding on all sorts of trains with conductors and never run across one of this specie before. I felt like in my official position, representing the state of Mississippi, I was entitled to courteous treatment, and I was paying my fare too." Among other assignments of error, it is assigned for error that the verdict is excessive; the verdict on this trial being for $2,000. On the former trial the verdict of the jury was for $1,495 for the alleged violation of the plaintiff's right to ride in a white compartment with his prisoner, and also for Appeal from Circuit Court, Holmes Coun- the conversation with the porter in which he ty; S. F. Davis, Judge. Action by A. C. Cox against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition of remittitur. was requested to exhibit his ticket before entering the train, the porter being a negro, and for the insulting language now relied on. The former decision eliminated the first two questions and left the trial for the damages resulting for the insulting language used by May, Sanders & McLaurin, of Jackson, the conductor in ejecting the plaintiff from for appellant. the white compartment. Everett & Forman, of Indianola, and Noel, Jordan & Neilson, of Lexington, for appellee. ETHRIDGE, J. This case was before this court on a former appeal and is reported in 132 Miss. 471, 96 South. 685, where a full statement of the facts is set forth in the opinion. In the former case we held that a carrier of passengers may adopt and enforce rules requiring passengers to exhibit tickets before entering trains, and also held that under the laws of Tennessee where the action [1] It is contended, first, that the plaintiff was only entitled to nominal damages and that no actual damage was sustained. We do not think that the plaintiff was limited to nominal damages and, although the court below instructed that no actual damages were shown by the proof, we think plaintiff was entitled to some actual damage for being insulted. The plaintiff under his version was also entitled to punitive damages, as was held in the former opinion. As the cause of action arose in Tennessee, and as the right of the parties, so far as the (100 So.) substance of the right is concerned, is gov-, court reduced this verdict to $1,500, and it erned by the law of Tennessee, and while we was sustained for that amount by the Sumight not be bound by the same rules in de- preme Court of Tennessee. termining whether there should be a reduction of damages where the judgment is deemed excessive, still we think it proper to look to the laws of Tennessee and consider the practice of that state in such matters. In the case of Shelton v. C., R. I. & P. R. R. Co., 139 Tenn. 378, 201 S. W. 521, L. R. A. 1918B, 707, there was a recovery of $750 in that case where the railroad company permitted the use of a dining car carried in its train by both colored and white passengers by having a rule providing for their being served at different hours. In that case a servant of the defendant railroad company. announced in the white passenger coach the last call for dinner, and the plaintiff immediately went into the dining car, took her seat, and ordered her meal. Before it was served, two colored women took seats at another table and ordered their meals, and the [2] In the case before us the facts are far less aggravating than in the case last cited, and also far less aggravating than the language and conduct used in the case of Y. & M. V. R. R. Co. v. May, 104 Miss. 422, 61 South. 449, 44 L. R. A. (N. S.) 1138. The jury in the former appeal of this case for the three elements of damage above referred to allowed $1,495, and taking all of the facts into consideration, we think the verdict here is excessive; but, if the plaintiff will remit $1,000, the judgment will be affirmed, otherwise it will be reversed and remanded. Affirmed, with remittitur. (No. 23831.) (Supreme Court of Mississippi. March 31, 1924.) (Syllabus by the Court.) servants of the railroad company, being color- NEW ORLEANS & N. E. R. Co. v. PENTON. ed men, began to eat their meals, whereupon the plaintiff got up and left the dining car; but as she approached the door the employee of the railroad company in charge demanded that she pay for the meal she had ordered She pushed before she left the dining car. him aside and returned to the car where she was riding, and the servant followed into the car, and some words passed, which the court stated might be considered insulting. In that case the court reduced the verdict to $250. In the case of C., N. O. & T. P. R. R. Co. v. Harris, 115 Tenn. 501, 91 S. W. 211, 5 L. R. A. (N. S.) 779, the appellee was plaintiff in the court below and recovered a verdict for $1,800 for the insulting conduct of the conductor growing out of the passenger not having a ticket at the time the conduct occurred. The plaintiff in that case applied for a ticket at one of the ticket offices of the carrier and was given a ticket to another point where there was a change of some kind with an order for a ticket at that point. When the train in which the plaintiff was riding reached that point, there was no one in the ticket office to issue the ticket for which she had an order, but she was told by an employee of the railroad company to go to another station a few miles further on, where she could procure her ticket. She was directed to give an order to the porter of the sleeping car, and did so, but on reaching the said station the train did not stop long enough for the porter to procure a ticket on the order. The conductor went to the berth in the sleeping car where the lady had retired and rudely demanded a ticket. He opened the berth without giving notice, where the plaintiff was disrobed, and she felt greatly abused and humiliated by the conduct of the The trial conductor of the Pullman car. 1. Commerce 27(6)-Action governed by federal Employers' Liability Act where employee and railroad were engaged in interstate commerce. Where brakeman and railroad by which he was employed were both engaged in interstate commerce at the time of the accident, the brakeman's action for injuries was governed by the federal Employers' Liability Act (U. S Comp. St. §§ 8657-8665). 2. Master and servant 265(4)—Injured railroad employee must prove negligence under federal act. In an action against a railroad under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), for injuries to railroad employee, the employee was required to prove negligence by railroad, since in such case there is neither a statutory nor a common-law pre sumption of negligence. 3. Master and servant 101, 102 (2)-Railroad not guarantor of safety under federal act. A railroad is not liable under the federal Employers' Liability Act (U. S. Comp. St. 88 On defendant's motion for a directed verdict, the court must treat plaintiff's evidence as proving every material fact which it proves or tends to prove directly or inferentially. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 5. Master and servant 286(14)—Evidence, ployment, and in some way the timber slid of negligence as to brakeman struck by tim-off the ramp, falling on appellee's head. ber at lumber company's plant held insufficient for jury. Brakeman, injured when timber slid off ramp adjoining spur track where the brakeman was engaged in switching cars, held not entitled to go to jury on question of negligence of railroad under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), in view of failure to show that the timber was thrown down the ramp by an employee of the railroad or that railroad could have anticipated that employee would be injured by reason of proximity of tracks to ramps or manner of construction of ramps or use which had been made thereof by the lumber company, it being inferable that the timber was thrown by an employee of the lumber company or some intermeddler. Holden and Cook, JJ., dissenting. In Banc. Appeal from Circuit Court, Pearl River County; J. Q. Langston, Judge. Suit by M. B. Penton against the New Orleans & Northeastern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered. Appellant defended on the ground that it was guilty of no negligence which caused appellee's injury, that the place at which ap pellee was engaged in his employment was a reasonably safe place for the performance of his duties, and, furthermore, that if the place was in fact unsafe, appellee had full knowledge thereof and assumed the risk incident thereto. At the conclusion of appellee's evidence, appellant, conceiving that no case of liability had been made out, moved the court to exclude appellee's evidence and direct a verdict for appellant. This motion was overruled. The case thereupon went to the jury under the instructions of the court, and resulted in a verdict and judgment for appellee for $30,000. Appellant contends that a verdict should have been directed in its favor on several grounds. In view of the conclusion the court has reached, it is only necessary to discuss one of those grounds, namely, that there was not sufficient evidence to go to the jury on the question of appellant's negligence. [2, 3] Under the federal Employers' Lia Bozeman & Cameron, of Meridian, and J.bility Act, there is in this case neither statB. Munroe and M. M. Lemann, both of New Orleans, La., for appellant. utory nor common-law presumption of negligence upon which appellee can rely. NegGex, Waller & Morse, of Gulfport, for ap- and in the absence of negligence on the part ligence is the basis of liability under the act, pellee. ANDERSON, J. [1] Appellee, M. B. Penton, sued appellant, New Orleans & Northeastern Railroad Company, in the circuit court of Pearl River county for damages for a personal injury received by him while engaged about his duties as brakeman employed on one of appellant's local freight trains, and recovered a judgment from which appellant prosecutes this appeal. The ground of liability upon which appellee relied, and upon which it is sought to sustain the judgment in his favor in this court, is that appellant breached its duty to furnish him a reasonably safe place in which to perform the duties of his employment and in ordering him to do his work in such unsafe place. Both appellant and appellee, at the time of appellee's injury, were engaged in interstate commerce; therefore it is unquestioned that this case is governed by the federal Employers' Liability Act (U. S. Compiled Statutes, §§ 8657-8665). of the railroad company or its employees, the railroad company is not a guarantor of the safety of the place of work; the extent of its duty is to see that ordinary care and prudence are exercised to the end that the place in which the work is to be done may be reasonably safe; the injured employee must prove the existence of the defect complained of; he must show that the place was unsafe as the result of a negligent failure of the railroad company to do its duty in respect thereto. Robert's Federal Liabilities of Carriers, vol. 1, § 528; Y. & M. V. R. R. Co. v. McCaskell, 118 Miss. 629, 79 South. 817. [4, 5] Treating appellee's evidence as proving every material fact which it proves or tends to prove, directly or inferentially, as should be done in determining whether ap pellant was entitled to a directed verdict, the following case was made out: As stated, there was only the evidence introduced on behalf of appellee; appellant offered none, and there are no material conflicts in the Appellee was engaged at the time of his in- evidence. Appellee had been engaged in the jury in switching cars in the plant of South- employ of appellant at intervals for about ern Lumber & Timber Company at Hillsdale 18 years. The most of that time he had in this state. While so engaged a large piece spent on work of the character of that in of timber was thrown, presumably by some which he was engaged when injured. At the employee of the said lumber company, onto time of his injury he was braking on one of a ramp adjoining the spur track on which appellant's local freight trans which switchappellee was at the time engaged in his em-ed all the lumber mill plants along the line |