108 Tenn.

Volume 108 — Tennessee Reports

73 opinions

108 Tenn. 1Sands v. Southern Ry. Co. (1901)
1. Demueeee to Evidence. Properly sustained, when. A demurrer to evidence is properly sustained when, in an action against a railroad company ior personal injuries, the evidence shows that the plaintiff, a bright and intelligent boy of sixteen years, was injured in leaping from a freight train moving at the rate of eighteen miles per hour, on which he had stolen a ride in known violation of the rules of the company, without the consent or knowledge of the conductor, by a collusive and unauthorized arrangement with a brakeman, to whom he paid a nominal fare. These facts show a case of contributory negligence on the part oí the plaintiff that defeats his action. (Post, pp. 3-6, 10). 2. Same. Comes to late, when. A demurrer to evidence by the defendant comes too late that is interposed after the demurrant has opened his evidence. (Post, p. 6.) Case cited: Summers'!;. Railroad, 96 Tenn., 459. 3. Same. Not defeated by evidence called out by demurrant on cross-examination. Pertinent evidence elicited on cross-examination of the plaintiff’s witness, though relating to a matter not inquired about in the examination in chief — e. g., the introduction and proof of a rule of the defendant on cross-examination of plaintiff’s witness in a suit against a railroad company for personal injuries, is treated as plaintiff’s evidence insofar that it will not defeat a demurrer to the evidence by the defendant. (Post, pp. 6-10.) 4. Railboads. Trespassers on trains. A person who, in known violation of the rules of the company forbidding it, steals a ride on a freight train without the conductor’s consent or knowledge, under a collusive and unauthorized arrangement with a brakeman, is not a passenger, but a trespasser, to whom the company owes no duty except to abstain from wanton and willful injury. (Post, pp. 10-12.) Cases cited: Railroad u. Haley, 94 Tenn., 383; Railroad- v. Meacham, 91 Tenn., 438. 5. Evidence. Of custom of boys to ride on freight trains incompetent. In an action against a railroad company for personal injuries sustained by a boy while stealing a ride on a freight train in known violation of the rules of the company forbidding it, it is not competent to show that it was the custom of boys to ride on freight trains between stations, where it is admitted that the company had no knowledge of the custom. (Post, p. 12).
108 Tenn. 14Southern Ry. Co. v. Vandergriff (1901)
Verdict. Sustained by the evidence. A verdict for $750 against a railroad company for injury to a passenger riding in the caboose of a freight train, resulting in his rupture and permanent injury, and caused by an unusually violent and unnecessary jerk of the train, is sufficiently supported by the evidence.
108 Tenn. 17Railroad v. Crow (1901)
1. Deed. Conveying right of way construed. A provision in a deed conveying' to a railroad company a right of way over the grantor’s farm, in general terms, that “This right of way to (shall) he exclusive for one year” does not limit the railroad company’s right to one year, but only limits the exclusiveness of the right for that period. The provision is one for the benefit of the grantee, not of the grantor. 2. Adterse Possession. Possession not admerse to right of way. The owner’s possession of land over which he has granted, in general terms, a right of way to a railroad company, for the location of its road, is not adverse to the right of the company, and, though continued for seven years, will not bar the company’s rights. Cases cited: Railroad v. Telford, 89 Tenn., 294; Railroad v. • French, 100 Tenn., 209.
108 Tenn. 21Smith v. Smith (1901)
Will. Devise in remainder to a son and his children construed. Under devise of a farm to testator’s widow for life, with remainder to his “son, Samnel F., and his heirs, equal shares,” the children of the son, Samuel El, living’ at the death of the widow, including those horn after testator’s death, take equal shares each with their father in the property. “ Heirs ” means “children” in this will, and is a word of purchase and not of limitation. Cases cited: Eogers v. Cawood, 1 Swan, 143; Grimes v. Orrand, 2 Heis., 298; Bead v. Fite, 8 Hum., 327; Franklin v. Franklin, 91 Tenn., 120; Boyd v. Bobinson, 93 Tenn., 1; Cowan v. Wells, 5 Lea, 682; Bridgewater v. Gordon, 2 Sneed, 5; Puryear v. Ed-mondson, 4 Heis., 43; Bowers v. Bowers, 4 Heis., 294; Satter-field u Mayes, 11 Hum., 58.
108 Tenn. 29Harris v. Parker (1901)
Contracts. In violation of statute void. An action cannot be maintained for the price of commercial fertilizer that contained no ammonia, the sale being made in violation of the statute forbidding sale of commercial fertilizers in this state that do not contain a “given per cent.” of ammonia to be prescribed by the Commissioner of Agriculture, and declaring persons guilty of a misdemeanor who make sales in violation of this provision. Act construed: Acts 1897, ch. 123. Cases cited: Stevenson v. Ewing, 87 Tenn., 46; Singer Mfg. Co. v. Draper, 103 Tenn., 262.
108 Tenn. 32Johnston v. Osment (1901)
1. COMPROMISE. Between owner of present or particular estate and rema/inderman. A compromise between parties competent to make it, whereby the owner of a present or particular estate, upon which a contingent remainder is limited or based, agrees to convey a portion of 'the property absolutely to the contingent remainder-man upon consideration of the latter’s release of his contingent interest in the residue, is a legal and valid contract, which, if deemed fair and reasonable, the courts will approve and enforce, even where the remainderman acts in a trust capacity. Case cited: Gore v. Howard, 94 Tenn., 577. 2. Same. Same. And the bishop and vestrymen of a church, invested under the economy of the church with control of its temporal affairs, in whom a contingent estate is vested by a will in trust for certain religious purposes connected with the church, are competent to make such compromise with the owner of the present or particular estate, but the property taken by them absolutely under such compromise must be limited to the purposes and uses expressed in the will. 3. Decree. Authorized, by the pleadings. And a decree directing the execution of such compromise, in a cause to which all the necessary parties are made, is authorized by the pleadings, when the bill seeks construction of the will creating the contingent estate, and full directions to the executor in its execution, administration and distribution of the estate under direction of Court. 4. Same. Compromise decree vatid, when. But a compromise or consent decree is valid, although it goes outside or beyond the scope of the pleadings, when it is rendered by a Court having jurisdiction of the parties and subject-matter. Cases cited' Boyce v. Stanton, 15 Lea, 347; Bigiey v. Watson, 98 Term., 353.
108 Tenn. 39Gray v. Telegraph Co. (1901)
1. Telegraph Companies. Measure of liability for negligent delay in delivery of message from another state. One who sends a telegram from another state to be delivered in this state is entitled to recover of the telegraph company, for its breach of statutory duty to deliver promptly, damages for mental distress caused by the negligent delay in delivering the message, although the company would not have been liable for such damages under the statute of the other state, or in an action upon the contract. (Post, pp. 40-50.) Code construed: $$1837, 1838 (S.). Cases cited: Wadsworth v. Tel. Co., 86 Tenn., 695; Tel. Co. v. Mellon, 96 Tenn., 73; Hubble v. Land Co., 95 Tenn., 589. 3. Interstate Commerce. State statute regulating liability of telegraph companies is not interference tvith, when. A state statute declaring and enforcing the prompt and correct delivery of messages by telegraph companies, and subjecting such companies to prosecution for misdemeanor and to action for damages for violation of that duty, is not objectionable, in its application to messages sent from another State for delivery in this State, as an unlawful interference with interstate commerce. Such statute is not an obstruction, but an aid, to interstate commerce. (Post, pp. 50-52.) 3. Declaration. Not on contract, but for breach of statutory duty. Although the declaration in this case recites the contract in stating the facts upon which recovery is sought, it is construed as a whole to be an action, not on the contract, but for breadh of statutory duty. (Post, pp. 52, 53.)
108 Tenn. 54Lowery v. Cate (1901)
1. Infant. IAabiUty of, for torts and contracts defined. Infancy of the defendant is a good defense to an action for mere breach or negligent performance of an infant’s contract, but it is no defense to an action for a positive, direct, and willful tort of the infant, occurring after the contract is made and independently of it, although his act may have been connected with the performance and constituted a breach of the contract. The distinction is between the positively willful and merely negligent acts of the infant. The rights of parties turn in such case, not upon the form of the action, but upon the real nature of the transaction. (Post, pp. 58-81.) Cases cited: Dial v. Wood, 9 Bax., 396; Beasley u. State, 3 Yer., 481; Weigand v. Malatesta, 6 Cold., 367. 3. Same. Same. Case in judgment. An infant contracted to thresh- a neighbor’s wheat. He used for the purpose an engine without spark arrester, and placed so negligently that it set fire to and burned the neighbor’s barn and contents. His act was not willful, in the sense of being intentional, but it was negligent. Held: Infancy is good defense to an action against the infant for the value of the barn and contents. (Post, pp. 55-57, 61, 62.)
108 Tenn. 63Central Manufacturing Co. v. Cotton (1901)
1. SupReme Court. Will not reverse on credibility of witnesses. This Court will not reverse a -judgment for a plaintiff based upon the verdict of a jury, or upon the finding of the Judge sitting as a jury, upon the ground that the evidence for the plaintiff is so overwhelmingly contradicted by the evidence of other witnesses that no Court can believe it. This Court has no power, in such'case, to pass upon the credibility of witnesses. • That question is within the exclusive province of the jury. Cases cited; Railroad v. Abernathy, 106 Tenn., 723; Eller v. Richardson, 89 Tenn., 576; Cowan v. Singer Mfg. Co., 92 Tenn., 376. 2. Same. Will not reverse for excessive damages, when. This Court refuses to reverse, as excessive, a judgment of $100, in favor of a father for an injury to his son, causing loss of half of three fingers, although it appears that the boy received greater wages after than before the accident, it also appearing that he lost time, and that his injury was of a character to impair, and did impair his capacity to labor.
108 Tenn. 68Nash v. Knoxville (1901)
PROM KNOX. Appeal from Chancery Court of Knox County. H. Gr. Kyle, Ck.
108 Tenn. 74Crowley v. Railroad (1901)
DECLARATION. Averments of, sufficiently eertcuin, when. A declaration, in an action against a railway company for personal injuries, is sufficiently certain which avers that, on a particular day and near a particular place, the defendant did wrongfully and negligently run one of its engines and cars upon, against, and over “the plaintiff, who was without fault, bruising, injuring, and wounding him,” without stating the time of day or night the accident occurred, or describing the train or direction it was running. Cases cited: Railroad v. Pratt, 85 Tenn., 9; Railroad v. Davis, 104 Tenn., 442; Chattanooga Rapid Transit Co. v. Walton, 105 Tenn., 415; Railroad v. House, 96 Tenn., 552.
108 Tenn. 82Condon v. Maloney (1901)
1. Mandatory Injunction. Rarely used by the courts. The extraordinary process of mandatory injunction is rarely used by the courts. (Post, p. 86.) 2. Constitutional Law. General rules. All intendments are in favor of the constitutionality of an Act of the Legislature passed with the forms and ceremonies requisite to give it the force of law. Every reasonable doubt must be solved in favor of the legislative action. He who seeks to have a legislative Act declared void on the ground that it is violative of the Constitution, must be prepared to place his finger on the clause which vitiates it. (Post, p. 87.) Case cited: Cole Mfg. Co. v. Falls, 90 Tenn., 468. 3. Same. Same. The phrases “by the law of the land” and “due process of law,” as used in constitutional provisions, are exact equivalents. (Post, p. 88.) Case cited: Harbison v. Knoxville Iron Co., 103 Tenn., 421. 4. Knox County Road Law. Not vicious class legislation. The “Knox County road law ’’ — Acts 1901, Ch. 8 — which applies only to “ counties having a population of not less than 70,000, and not more than 90,000, under the Federal census of the year 1900, or any subsequent Federal census,” is not vicious class legislation, although only a single county, to wit: Knox County, was embraced within its classification under the Federal census of 1900, and two counties, to wit: Davidson and Shelby, were excluded from its operation, as having more than 90,000 inhabitants, and the remaining counties of the State were excluded from its operation, as having less than 70,000 inhabitants under that census. (Post, pp. 87-98.) Constitution construed: Art. I, §8; Art. XI, Sec. 8. U. S. Const., XIV Amendment. Act construed: Acts 1901, Ch. 8. Cases cited: Stratton v. Morris, 88 Tenn., 534; Harbison v. Knoxville Iron Co., 103 Tenn., 421; Lnehrman ¶. Taxing District, 2 Lea, 435; Cook u State, 90 Tenn., 407; State ex rel. v. Sehlitz Brewing Co., 104 Tenn., 715 ; Peterson v. State, 104 Tenn., 127. 5. Same. Not obnoxious as embracing two distinct subjects. The “Knox County road law” — Acts 1901, Ch. 8 — is not obnoxious to constitutional objection, as embracing two distinct subjects, although it deals with public roads and the county workhouse in a single statute. (Post, pp. 98-100.) Constitution construed: Art. II, See. 17. Cases cited: Cannon v. Mathes, 8 Heis., 504; Cole Mfg. Co. v. Palls, 90 Tenn., 466; Ryan v. Terminal Co., 102 Tenn., 123; State v. Brown, 103 Tenn., 450. 6. Same. Not vicious as depriming the people of home rule. The “ Knox County road law ” — Acts 1901, Ch. 8 — does not, by authorizing the Governor to appoint the Road Commission therein created to hold until the next general election, violate that clause of the Constitution which forbids the filling of any office created by the Legislature otherwise than by election by the people or by the County Court. (Post, pp. 100-102.) Constitution construed: Art. XI, Sec. 17. 7. Office. Vacancy in. The filling of newly created office for the first time is the filling of a vacancy within the meaning of the constitutional provision that “ the election of all officers and the filling of all vacancies, not otherwise directed or provided by this Constitution, shall be made in such manner as the Legislature shall direct.” (Post,.p. 101.) Constitution construed: Art. 7, Sec. 4. Cases cited: State ex rel. v. Maloney, 92 Tenn., 62; Stateu. Glenn, 7 Heis., 472.
108 Tenn. 104Love v. Southern Railway Co. (1901)
1. Summons. Issuance of prevents rwmArng of statute of limitations, when. The issuance of a summons commanding the defendant, in general terms, to appear at a designated term of court to answer an administrator “ in an action for personal injuries resulting in the death ” of the deceased, “to plaintiff’s damage $2,000,” etc., is sufficient, without stating the existence or names of the beneficiaries of the recovery and without stating more specifically the cause of action, to prevent the running of the statute of limitations, from and after the date of its issuance, against any beneficiary that may be named in the declaration or against any specific cause falling within the general description of action that may be therein averred. Code construed: U 4520, 4521 (S.); U 3520, 3521 (M. & V.); U 3815, 2816 (T. & S.). Cases cited: Railroad v. Brigman, 95 Tenn., 624; Elatley v, Railroad, 9 Heis., 230; Whaley v. Catlett, 103 Tenn., 348. 2. Declaration. Amendment of, that relates to commencement of action. A declaration in an action, by an administrator, to recover for personal injuries, causing a decedent’s death, is fatally defective where it fails to state the existence and names of the beneficiaries entitled to the recovery, but the defect may be remedied by amendment; and such amendment, when made, relates to the commencement of the suit by issuance of the summons, although these facts are not stated in the summons, so as to prevent the running of the statute of limitations from and after the issuance of the summons. Cases cited: Nance v. Thompson, 1 SDeed, 321; Burgie v. Sparks, 11 Lea, 84; Crofford v. Cothron, 2 Sneed, 492; Railway Oo. v. Lilly, 90 Ten-n., 563; Cannon u Phillips, 2 Sneed, 186; Railway Co. v. Pitt, 91 Tenn., 86; Webb v. Railway Co., 88 Tenn., 128; Railroad v. Bean, 94 Tenn., 388; Greenlee v. Railroad, 5 Lea, 418; Trafford v. Express Co., 8 Lea, 100; Loague v. Railroad, 91 Tenn., 458; Railroad v. Davis, 104 Tenn., 442; Holden v. Railroad, 92 Tenn., 144; Railroad v. Acuff, 92 Tenn., 26; Sample v. Smith, 1 Sh. Cas., 282; Collins v. Railroad, 9 Heis., 841; Railroad v. Foster, 10 Lea, 351. 5. Actions. For personal injuries causing death. The statutes saving to the widow, children, and next of kin of a decedent a right of action to he prosecuted in the name of his administrator for personal injuries causing his death, do not create a new and substantive right of action for their benefit, but merely preserves and continues for them the right of action that deceased would have had if he had survived. Hence the action, in such case, is that of the administrator, and not that of the widow, children, or next of kin, though prosecuted for their benefit; and such action is therefore effectively commenced, so as to prevent the running of the statute of limitations, in the name of the administrator, without mention of the beneficiaries of the recovery. Case cited: Whaley v. Catlett, 103 Tenn., .348.
108 Tenn. 127Low v. State (1901)
Appeal in error from the Circuit Court of Scott County. W. R. Hicks, J.
108 Tenn. 130Cox v. Howell (1901)
1. Injunction. Maintainable to 'prevent diversion of water from mill, token. The owner of a mill propelled by the water of a flowing stream can protect, by injunction, the water of the stream against diversion and diminution, hurtful to the operation of his mill, by an upper riparian proprietor for the purpose of generating steam for a planing plant, where the stream, in its natural flow and quantity, is insufficient for the operation of the mill of the lower proprietor, especially where the two proprietors had jointly owned and established the mill and the upper proprietor had, before erecting his planing plant, sold and conveyed his interest in the mill to the lower proprietor. In such case the upper proprietor is estopped to divert and diminish the water of the stream for such purpose to the injury of the lower proprietor, both by the general principles of law applicable to the use of water of flowing streams by riparian proprietors and by the covenants of his deeds. (Post, pp. 130-144.) Cases cited: Posey v. James, 7 Lea, 98; Holbert v. Eden, 5 Lea, 204; Wallí!. Cloud, 3 Hum., 182. 2. WATER. Bights of riparian owners to use running streams, de fined. The owner of land, across or over which a stream of water flows, has a right to have it flow over his land in its natural channel, without unreasonable detention, undiminished in quantity, and unimpaired in quality, except so far as is inseparable from a reasonable use of the water of the stream for the ordinary and useful purposes of life by those above him on the stream. Every riparian proprietor has an absolute right to the use of the water of a stream for domestic purposes, such as the support of life in man and beast. He may likewise use it for purposes of irrigation and operation of machinery, provided that can be done without injurious results to the lower proprietor. (Post, pp. 133-144.) 3. Same. Same. What is a reasonable and permissible use or diversion of the water of a running’ stream, with respect to the rights of riparian proprietors, depends upon the size and character of the stream, the purpose of the use or diversion, and, as a general proposition, upon the circumstances of the particular case. (Post, p. 137.)
108 Tenn. 145Wayne v. Fouts (1901)
1. Equitable CONVERSION. Doctrine of. The doctrine of equitable conversion, by which, under certain circumstances, realty is regarded in equity as personalty, and personalty as realty, is firmly fixed in the jurisprudence of this country and England. It is founded on the maxim, “ Equity regards that as done which ought to be done.” Through this doctrine Courts of Equity treat as land money directed to be invested in land, and as money land directed to be sold for money, and the direction by which the notional transmutation is accomplished may be -made by will, or by deed, or- settlement, or other contract inter vivos. (Post, pp. 147, 148.) Case cited: Wheless v. Wheless, 93 Tenn., 395. 3. Same. Direction for, must be imperative. But to be effective, the direction, in whatever manner made, that the form of the property be actually changed must be imperative, in the sense of being positive and unmistakable. (Post. p. 148.) Case cited: Wheless v. Wheless, 93 Tenn., 395. 3. Same. Example of, Toy will. Testator bequeathed “ all the balance ” of his property, “ real and personal,” to his two sisters, a brother, and the children of a deceased sister, one-fourth each. He then directs that ‘ ‘ said property, real and personal, .... shall be sold to the best advantage, and on such terms as my executor shall deem advisable, and the proceeds paid over to the devisees and legatees hereinabove indicated,” and appoints an executor, investing him with “full power and authority to sell either personal or real estate under this will.” Both real and personal estate passed under the will. Held: Real estate passing under this will was held by the de-visees from the date that the will went into effect as personalty and subject, upon the death of any of them, before sale thereof had been made by the executor, to the laws of descent and distribution applicable to personal estate. (Post, pp. 149, ISO.) Case cited; Cobb v. Denton, 6 Bax., 237. i. Same. Same. Under this will the conversion of the real estate into personalty took place immediately upon the testator’s death. The direction to the executor to sell the realty and distribute the proceeds is explicit and positive — imperative in the legal sense, and imposed a duty to do so. The fact that, under the will, the legal title and beneficial interest in the real estate passed to the same persons does not prevent the equitable conversion so clearly intended and provided for by the testator. (Post, pp. ISO, 151.) 5. Same. Husband talces realty of wife equitably converted. The husband of one of the female devisees under this will takes jure ma/riti, as personalty, her interest in the real estate upon her death before sale thereof by the executor to the exclusion of her heirs. (Post, pp. 152-154.) Cases cited: Hays v. Bright, 11 Heis., 325; Loftus v. Penn., 1 Swan, 445; Trafford v. Express Co., 8 Lea, 111; Smalling v. King, 5 Lea, 590; Moore ex parte, 3 Head, 171; Cowden v. Pitts, 2 Bax., 59. 6. Same. Not effected by unexecuted decree of sale. Real estate is not converted into personalty by decree for its sale. It remains real estate and descends as such until sale under the decree has been made and confirmed. Cases cited: Moore ex pan-te, 3 Head, 171; Cowden v. Pitts, 2 Bax., 59; Smalling u Kings, 5 Lea, 590. 7. ReconvebsioN. Bight and power of and how exercised. The beneficial owner of real estate that has been converted by virtue of the doctrine of equitable conversion into personalty, has undoubted power by his words and acts to reconvert it into realty and stamp it with the character of realty at any time before actual sale thereof. To have this effect, however, the words and acts of the beneficial owner must be unequivocal and must clearly indicate his purpose and election to countermand the trust and relieve the trustee of duty. (Post, pp. 154-156.) 8. Sam®. Concurrence of joint beneficiotries essential. Concurrence of all the joint beneficiaries is essential to the reconversion of real estate that has been stamped with the character of personalty by equitable conversion. One beneficiary cannot, without the concurrence of all, reconvert even his own interest in the property. {Post, pp. 156, 157.) 9. Same. Facts that do not worh. The refusal or delay of the executor to make sale of realty that , under the provisions of the will has been equitably converted and stamped with the character of personalty does not operate to reconvert it into realty. Nor does the act of the beneficial owners in seeking- sale of same by the court describing the property in the bill as “land” or “real estate” effect a reconversion. {Post. pp. 158-160.)
108 Tenn. 161Iron & Wire Co. v. Green (1901)
1. Master and Servant. Liability for injury to minor em/ployed in violation of statute. Employment of an infant in violation of statute forbidding' such employment and making it a misdemeanor constitutes per se suck negligence as makes tke employer liable for all injuries sustained by tke infant in tke course of kis employment. Acts construed: Acts 1893, ek. 159. Code construed: 4434, 4436 (S.). Case cited: Queen v. Dayton & Co., 95 Tenn., 458. 2. Same. Same. Tke causal connection between tke illegal employment of an infant in violation of statute tkat constitutes negligence per se and tké injury of suck infant is sufficient to sustain tke latter’s action against tke employer for damages wkere tke infant, wkile actually engaged in kis employer’s service and wkile on tke latter’s premises for tkat purpose, sustains injury from tke falling upon kim of panels of iron fence, and suck causal connection is not broken by tke fact, if it is skown, tkat tke infant brougkt tke injury upon kimself wkile fooliskly, and outside kis duties, playing witk tke panels. 3. Charge oe Court. Request as to causal connection properly refused. Hence tke court properly refused in suck ease to give tkis request, to wit: “If tke proof skows tkat plaintiff sustained tke injury in question wkile not engaged in and about any work for tke defendant, or its agents kaving autkority over kim, but while playing with the panels of fence .... then tke statute in question has no application to tke facts of tke case, and plaintiff cannot recover.” 4. Verdict. Not reversible for excessiveness. A verdict of $3,000 in favor of a boy under twelve years of age for the loss of a leg by the defendant’s negligen ce, in employing him in violation of statute, is not so excessive as to evince passion, prejudice, caprice, or corruption on the part of the jury that requires its reversal.
108 Tenn. 168Wiley v. Bird (1901)
1. Ejectment. Defeated by seven years adverse possession. It is a complete defense to an action in ejectment to show seven years, continuous adverse possession of the land sued for by defendant and those under whom he claims. 2, REMAINDERMAN. Cam, maintain bill to remove cloud from title. While remaindermen cannot, during the continuance of the life estate maintain the technical action of ejectment for possession of land, still they can maintain a bill, properly framed, to remove cloud from title. And a bill for this purpose is sufficient which avers that the defendants “are setting up some sort of claims to the land which are not valid and are frauds upon the rights of complainants, and that they are entitled to have the same cancelled and declared void.” Cases cited: Dodd v. Benthal, 4 Heis., 608; Anderson County v. Hays, 99 Tenn., 543; Weaver v. Davidson County, 104 Tenn., 321; Aiken v. Suttle, 4 Lea, 109.
108 Tenn. 173Rodgers v. Burnett (1901)
1. Religious Societies. Re-affirmance of doctrines affecting. The court re-affirms the doctrines enunciated in Nance v. Busby, 91 Tenn., 303, declaring the status and rights of religious societies and their members in the Civil Courts. (Post, pp. 178-181.) 3. Same. Effect of decision by synod as to status of church. Where a synod, with which a church is connected, has at its regular session decided that one of two rival factions is the true church, to the exclusion of the other faction, and has ordered a reorganization of the church by that faction and awarded to it the control of the church property, an executive committee of the synod cannot, after the close of the session, in the absence of some authority to be found in the constitution, rules, or laws governing the denomination, reconsider and reverse the action of the synod and recognize the other faction so as to enable it to recover control of the church property. (Post, pp. 175-181). 3. Same. Forfeits control of church property, when. A deed for church property contained this clause, to wit: “For and in consideration of the love of the gospel and other causes, convey unto the elders of Zion’s Church and their successors in office forever, for the only use as a church and controlled by the Evangelical Lutheran Church of the Holston Synod.” The Zion Church, through its recognized governing body, after questioning the orthodoxy of the Holston Synod, withdrew from that synod and united with Missouri Synod. Held: That Zion Church thereby forfeited control of the property conveyed by said deed. The property was conveyed on condition that Zion Church should remain in the Holston Synod. (Post, pp. 181-184.) 4. Same. Rights of withdranvi/ng or excluded members. Members of a church who have voluntarily withdrawn or have been excluded, though constituting a majority of the membership, have no right or claim to the control of the church property that the courts will recognize or enforce. (Post, p. 184.) 5. Cotjbt of Chancery Appeals. Construction of deed by. Construction of a deed is a question of law and the decision of such question by the Court of Chancery Appeals is not binding upon this court. (Post, p. 184.)
108 Tenn. 185Blalock v. State (1901)
1. Time. Computation of. Giving time ‘ ‘until” a specified day to perform an act — e. g., to . present and file bill of exceptions, includes the day named. (Post, pp. 186-188.) Code construed: § 60 (S.); $ 46 (M. & V.); \ 48 (T. & S.). Cases cited: Chester v. Hubbard, 2 Hum., 354; Copeland u Woods, 2 Hum., 334. 2. Keeping Open Saloon on Sunday. JErroneous charge. On the trial of the proprietor of a saloon and adjoining and connecting with restaurant, jointly with his bartender and restaurant-keeper, for keeping the saloon open on Sunday, it is error for the Court to charge in such terms as imply that defendant would be guilty if the restaurant alone were opened on Sunday, where the proof shows that all the doors of the saloon, including that opening into the restaurant, were closed and that no one, except the bartender, was found inside the saloon and that he was not doing any business, but only enjoying the luxury of an electric fan on a hot day. (Post, pp. 188-190.) 3. Same. Same. A charge of the Court, on the trial of the offense of keeping open a saloon on Sunday, is erroneous which makes the defendant guilty for opening the door and entering the saloon on Sunday for any purpose whatever, however innocent, urgent, or necessary. (Post, p. 190.) 4. Same. Same. A charge of the Court, on the trial of the offense of keeping open a saloon on Sunday, is erroneous which would make the proprietor guilty on account of the act of his bartender done in the proprietor’s absence and without his knowledge. (Post, pp. 189, 190.)
108 Tenn. 191Cottrell v. Griffiths (1901)
1. PARTITION. Deed to husband and wife for wife's share. Where, in the partition of land, the share allotted to a married women is conveyed to herself and husband jointly, they hold, under such deed, the same relative interests in the portion allotted to her in severalty that they held, under the law, in her undivided interest in the land — no greater and no less. 2. Deed. Ineffectual delivery. The heirs of a married woman are not estopped to claim her land against the husband by the fact that it, being her allotment. in the partition of an estate, was, by mistake of the draftsmen and contrary to the wishes of the parties, conveyed to herself and husband jointly without consideration on the part of the husband, where the parties, expressing dissatisfaction with the deed, withheld it from record for further consideration and advice and retained it in this situation for over eight years, holding possession of the share allotted in the meantime. There was no complete and unqualified delivery of the deed upon these facts.
108 Tenn. 197Patton v. Chattanooga (1901)
1. Municipal Cobpokations. Injunction of ordinances by taxpayers. It is essential, in a bill brought by citizens and taxpayers to enjoin a city ordinance on account of its alleged invalidity, that complainants aver that they are, or will be, subjected by such ordinance to some loss, burden, injury, or deprivation of rights peculiar to themselves, and not imposed alike and in common upon the entire community. Matters of common interest, affecting alike all members of the community, are within the exclusive jurisdiction of the city authorities. (Post, pp. 217-229.) Cases cited: Ford v. Farmer, 9 Hum., 160; Lynn v. Polk, 8 Lea, 121; Kennedy v. Montgomery County, 98 Tenn., 165; Colburn v. Chattanooga, 2 Shan. Cas., 22; Bradley v. Commissioner, 2 Hum., 432; Maury County v. Lewis County, 1 Swan, 245; Bridgenor v. Rodgers, 1 Cold., 260; Morris v. Nashville, 6 Lea, 340; Bouldin v. Lockhart, 1 Lea, 200. 2. Same. Same. And the ordinance involved in this case, granting a franchise for the construction and operation of a telephone and electric plant within the city, is not of a nature that inflicts or imposes upon the complaining citizens any loss, burden, injury, or deprivation of rights that is not common to the entire body of citizens and taxpayers. (Post, pp. 198-229.) 3. Same. Same. Citizens and taxpayers, as such, cannot maintain a suit to test the validity of an ordinance because they may conceive it to be void as granting an exclusive franchise contrary to the public good and sound policy. The advisability of granting an exclusive franchise is one for the city authorities. The validity of such an ordinance can be questioned on the ground of its exclusiveness only hy the claimant of a conflicting interest. (Post, pp. 229-233.)
108 Tenn. 234Billington v. Jones (1901)
Wills. Revocation. It constitutes an effective revocation of a duly executed and published written will for testator to indorse upon it, in pencil, and sign this statement, accompanied by the declaration that he intended thereby to annul it, viz.: “ This will is null and void,” although he kept it, thus indorsed, in his possession in a lock drawer until his death fifteen years later, never in the meantime, however, having done or said anything of definite nature in regard to the matter. Cases cited: Smiley v. Gambrill, 2 Head, 164; Allen v. Huff, 1 Yer., 409; Marr v. Marr, 3 Head, 307, 308; Rodgers v. Rodgers, 6 Heis., 496; Allen v. Jeter, 6 Lea, 674; Frear v. Williams, 7 Bax., 550; Stover v. Kendall, 1 Cold., 560; Ford v. Ford, 7 Hum., 104; Smiley v. Gambrill, 2 Head, 168.
108 Tenn. 242Daniel v. Giles (1901)
1. Assault and Battery. Provocation admissible in action for in mitigation of damages. While no words, or insults, or opprobrious epithets can justify an assault and battery, still, in a civil action for assault and battery, evidence of provocation, calculated to heat the blood or arouse the passions of a reasonable man, offered at the time of the assault and battery, or so recently before as to . constitute part of the res gestee, is admissible and must be considered by the jury in mitigation of damages. Cases cited: Jacaway v. Dula, 7 Yer., 82; Chambers v. Porter, 5 Cold., 273. 2. Same. Erroneous charge as to provocation. And the charge of the Court in this case limiting the jury, in their consideration of evidence of provocation, to question of self-defense, and in effect instructing them that they could, not consider it in mitigation of damages, is erroneous.
108 Tenn. 245Harris v. Water & Light Co. (1901)
FROM MAURY. Appeal in error from the Circuit Court of Manrv County. Sam Holding, J.
108 Tenn. 251American Lead Pencil Co. v. Davis (1901)
1.Evidence. General exceptions insufficient. General exception to evidence, e. g., “defendant excepted to the question,” is had. (Post, pp. 253, 254.) Cases cited: Crane v. State, 94 Tenn., 86. 2. Same. Of condition of machinery after injwry was inflicted. In an action for an injury inflicted by machinery it is competent to show, in corroboration of plaintiff’s statement, the location and eopdition of the machinery soon after the accident, especially where it appears there had been no repairs or change in the meantime. (Post, pp. 253, 254.) Case cited and distinguished: Railroad u Wyatt, 104 Tenn., 433. 3. Damages. Correct charge as to allowing exemplary. In an action for an injury to a child caused by its negligent exposure to dangerous machinery an instruction that makes “gross negligence ” on the part of the defendant, or “reckless disregard of the safety of the child,” if proven, a basis for punitive or exemplary damages, in the discretion of the jury, is correct. (Post. pp. 254-257.) Cases cited: Byram v. McGuire, 3 Head, 532; Dougherty v. Shown, 1 Heis., 306; Robins v. Frazier, 5 Heis., 101; Haley v. Railroad, 7 Bax., 242; Cox v. Crumley, 5 Lea, 533; Railroad v. Gui-ñan, 11 Lea, 103; Transportation Co. v. Smith, 16 Lea, 501; Knoxville Traction Co. v. Lane, 103 Tenn., 388; Telep. & Teleg. Co. v. Shaw, 102 Tenn., 318. 4. Same. Charge as to exemplary justified Toy the facts. The Court is justified in submitting the question of allowance of exemplary damages to the jury in a case where the evidence shows that the plaintiff, though only ten years old and inex- . perieneed, was, by the defendant, without any warning or instructions, put to work near uncovered and dangerous ma-ehinery, from contact with which, while moving from one position to another in the effort to discharge his duty as directed, he sustained the injury, by loss of an arm, for which he sues. (Post, pp. 256, 257.) 5. Same. Same. If the evidence tends to show gross negligence and recklessness on the part of the defendant, the Court is justified in submitting the .question of allowing exemplary damages to the jury. And the Court determines whether there is such tendency in the proof and the jury judges of the sufficiency of the facts to justify the allowance of exemplary damages. (Post, p. 257.) 6. Same. Erroneous charge as to exemplary damages cured. Where it is clear that the jury did not allow exemplary damages, the erroneous submission of that question to them does not constitute reversible error. (Post, p. 257.) 7. VERDICT. Not set aside for excessiveness. . A verdict in an action for personal injuries will not he set aside as being excessive unless the amount allowed is so large as to evince passion, prejudice, partiality, caprice, or corruption on the part of the jury. The verdict of $2,875, allowed in this case, evinces no such vice. (Post, pp. 257, 258.) Case cited: Packet Co. v. Hobbs, 105 Tenn., 46.
108 Tenn. 259State v. Justices of Wayne County (1902)
Mandamus. Does not Vie to compel erection or completion of public bridge. Mandamus does not lie to compel the Justices of a County Court to erect a public bridge, or to complete one already partly built, or to levy tax or make appropriation of funds for that purpose, no matter how urgent the public necessity may be for such bridge. The powers of County Courts over the public roads and bridges are legislative and discretionary, and their exercise will not be enforced or controlled by the Courts. Cases cited: Wood v. Tipton County, 7 Bax., 112; Turnpike Co. v. Davidson County, 14 Lea, 73; Grant v. Lindsay, 11 Heis., 651; Railway Co. v. Wilson County, 89 Tenn., 603; Hawkins v. Justices, 12 Lea, 351; McAndrews v. Hamilton County, 105 Tenn., 399.
108 Tenn. 265Drake v. Hagan (1902)
1. Principal and Agent. Agent’s Mobility defined. An agent is responsible to his principal, but not to third persons, for the consequences of nonfeasance, or mere omission in.the performance of duty; but he is’ responsible to third persons for the consequences of misfeasance, or positive wrong in the performance of duty resulting in injury to such third person, Cases cited: Erwin v. Davenport, 9 Heis., 45; Elmore u Brooks, 6 Heis., 48; Deadrick v. Bank, 100 Tenn., 458. 2. Declaration. Fails to state cause of action against aqent. Hence a declaration in an action by a third person against an agent is fatally defective which avers injury only from the agent’s failure to perform his duty.
108 Tenn. 271State v. King (1902)
1. State Tbeasüby. Appropriation of public moneys, what sufficient. Appropriation of public moneys for the payment of the salary of Shop and Factory Inspector out of the State Treasury is made by a provision in the statute relating to his office; “that the salary of said Inspector shall be twelve hundred dollars per annum, payable monthly, on warrant of Comptroller, as other salaries are paid.” (Post, pp. 273, 274-281.) Act construed: Acts 1901, Ch. 67. 2. Same. Same. And said provision constitutes an appropriation of public moneys for the purpose stated within the meaning of the constitutional provision that “no money shall be drawn from the treasury but in consequence of appropriations made by law,” etc. (Post, pp. 274-281.) Constitution construed: Art. 2, See. 24. Acts construed: Acts 1901, Ch. 67. 3. Same. Same. And the appropriation thus made is not forbidden or annulled by the usual provision in general appropriation acts, that “the Comptroller is hereby expressly forbidden to draw his warrant on the treasury for any amount over and above the amount appropriated for any particular purpose, and he is also forbidden to draw his warrant for any purpose for which an appropriation has not been made, either in this Act or by law.” Such appropriation is made “by law,” and excepted out of the above provision. (Post, p. 275.) Acts construed: Acts 1901, Ch. 67. 4. Same. Same. And the payment of said salary is not forbidden by the statutory provision that “no money shall be paid out of the public treasury unless the law or laws under which the same may be claimed, or demanded, shall expressly direct and order that it shall he paid out of the public treasury, ” etc. (Post, pp. 273-281.) Code construed: $287 (S.); $268 (M. & V.); $ 235 (T- & S.)
108 Tenn. 282Ray v. State (1902)
1. Murder. Facts that support verdict for murder in the first degree. The facts set out in the Court’s opinion are held to support a ver- ' diet of murder in the first degree, but this Court overrules the Circuit Judge’s action disregarding the jury’s finding of mitigating circumstances, and pronounces judgment of imprisonment for life, instead of sentence of death. (Post, pp. 285-289.) 2. Jury Trial. Examination on voir dire. It is not error for the Court to permit a proposed juror in a murder case to be asked by the Attorney-general, in an examination on the voir dire, even in the presence of other jurors already selected, whether he has any conscientious or religious scruples against capital punishment or against hanging for murder in the first degree if the proof showed guilt. (Post, pp. 289, 290.) 3. Witness. Answering that he has no Knowledge of matter inquired about. Where a witness answers that he has no knowledge of the matter inquired about there can be no cause for reversal, even if the question was an improper one and proper exception was taken. The whole matter becomes immaterial. (Post, pp. ■ 290, 291.) 4. Supreme Court. Will not reverse for remarks of Attorney-general, when. There is no reversible error where, on the trial of a murder case, the Attorney-general remarked, in connection with .defendant’s proof of deceased’s bad character, addressing the Court in the presence of the jury, “Ipresume, sir, we would not be allowed to show that the defendant himself is no geranium ? ” and the Court replied, “ No, sir; you cannot-. The law conclusively presumes that the defendant is of good character,” and the Attorney-general assented to this, saying, “Certainly, sir; that is true; that is the law.” The Attorney-general’s remarks were improper, but the Court did all that could he done to counteract their prejudicial effect. (Post, pp. 291, 292.) 5. Same. Same. It is not reversible error in a murder case ior the Attorney-general, in the argument, to state, after premising that the State cannot inquire into the defendant’s character unless he first opens it up, that the jury had, nevertheless, a right to pass upon the character of defendant, who had testified in his own behalf, from the evidence in the record, and that this evidence showed him to be a member of a gang of crap-shooting negroes, there being, in fact, proof iu the record that defendant had played craps with some of his witnesses, who were, like himself, negroes. (Post, pp. 292, 293.) 6. Same. Will not reverse for permitting examination of witness, when. It is not reversible error in a capital case for the Court to permit the examination of an additional witness by the State after the defendant and one of his witnesses had testified for the defense, where the witness had testified on a former trial, and the Attorney-general gave notice, when the case was taken up, of the absence of the witness and what he expected to prove by him, and obtained leave to examine him, when he should arrive, during the progress of the trial, it further appearing that the witness could not be had earlier and had not heard any of the evidence already introduced. (Post, pp. 293, 294.) 7. CHARGE oe Court. Request covered by charge properly refused. There is no error in the Court’s refusal to give a request for further instructions, where the charge already given is sufficiently comprehensive and substantially embraces the matter of the request. The original charge in this case was sufficient on the subject of overt act, and embraced the matter of the request for further instructions on that subject, and the request was, therefore, properly refused. (Post, pp. 294, 295.) 8. IiíuiotmeNT. Por murder sufficiently charges a battery. An indictment for murder is good, though it contains no express averment of a battery, which charges that the defendant “with a certain dangerous weapon, to wit: a gun, which he in his hands then and there had and held, in and upon the body of one Gene Prentiss, feloniously, willfully, deliberately, and premeditatedly, and with malice aforethought did make an assault upon the body of said Gene Prentiss, and did then and there unlawfully * * * by the means and in the manner aforesaid, kill and murder the said Gene Prentiss, against the peace and dignity of the State. ” A battery is implied from the force of the words “kill” and “murder.” (Post, pp. 295-298.) Code construed: $ 6439 (S.); g 5349 (M. & V.); I 4598 (T. & S.). Cases cited: Alexander v. State, 3 Heis., 475; Riddle v. State, 3 Heis., 401; Williams v. State, 401; Williams v. State, 3 Heis., 376. 9. New Trial. Motion disposed of on extension of term,. The Court does not lose jurisdiction to dispose of a motion for a new trial and to pronounce sentence on the verdict in a criminal case where the motion is made during the term, and the Court is held open for that purpose until a future day beyond the regular limit of the term, and until the regular term of the Court in another county has intervened. Such action is authorized under Acts 1899, Ch. 40, as heretofore construed by this Court. (Post, pp. 298-301.) Act construed: Acts 1899, Ch. 40. Case cited: Street R. Co. v. Simmons, 107 Tenn., 393. 10. MubdeR. Mitigating circumstances. This Court finds sufficient reasons in the evidence in this case to reverse the trial Judge’s action in overruling the jury’s finding of mitigating circumstances, and pronouncing sentence of death upon the defendant for murder in first degree, and condemns the defendant to life imprisonment in accordance with the recommendation of the jury. (Post, pp. 301-303.)
108 Tenn. 304Railroad v. Klyman (1902)
1. Common CaebieR. Passenger's rights under full rate iieltet defined. The holder of a first class, regular, full rate ticket from one point to another on the lines of a single carrier has ordinarily the right to begin his journey when he pleases; but when he has commenced his journey he cannot stop over at an intermediate station, but must, in the absence of statute, regulation, or contract permitting stop-over, continue it to his destination, without break, by the ordinary trains with reasonable dispatch. His failure to do so forfeits his right to travel on the ticket. (Post, pp. 307-314.) Case cited: Railroad v. Turner, 100 Tenn., 214. 2. Same. Same. And where a passenger attempting to travel on such a ticket has been refused transportation and sues the carrier for damages on that account, it is not precluded from setting up the invalidity of the ticket in defense of the action by the fact that the conductor, in refusing the transportation, stated as his reason that the ticket was out of date, whether the reason assigned was technically correct or not. (Post, pp, 314, 315.) Case cited : Ault v. Dustin, 100 Tenn., 366.
108 Tenn. 316Union Trust Co. v. Cox (1902)
1. Insubance, Life. Bequest of to pay debts valid. An assured, having a life policy payable to himself, “his executors, administrators, and assignees,” may dispose of same by will, so as to subject same to the payment of his debts to the exclusion of his widow and children. Code construed: § 4030 (S.); § 3135 (M. & V.); <S 2294 (T. & S.). Cases cited: Rison v. Wilkerson, 3 Sneed, 569; Williams v. Carson, 9 Bax., 516. 2. Same. Same. Example. Testator directed his executor first to pay “all just and honorable debts ” of his estate, and then disposed of the balance of his property, including a large amount of life insurance, among his widow and children. His estate, outside the life insurance, was grossly inadequate to pay his debts. Held: His creditors are entitled to be paid out of the life insurance, to the exclusion of the widow and children.
108 Tenn. 324Nashville, Etc., Railway Co. v. Norman (1902)
1. Juey Trial. Credibility of witnesses and weight of evidence are questions for ury. On a jury trial the credibility of a witness and the weight to be given his testimony are questions for the exclusive determination of the jury. (Post, p. 328.) 2. Same. Charge does not invade province of jury, when. The Court does not invade the province of the jury by stating, in the course of his instructions to the jury, the contentions of the respective parties. (Post, pp. 328, 329.) 3. Negligence. Contributory of plaintiff that defeats action. Not only contributory negligence of the plaintiff which is the sole controlling and proximate cause, that is, the cause without which the accident or injury would not have occurred, will defeat his action; but his negligence that concurs with that of the defendant in producing the injury or accident, as its proximate cause, will defeat his action. Plaintiff's negligence that does not contribute, as its proximate cause, to produce the injury or accident, will not defeat his action, but goes in mitigation of damages. (Post, pp. 328-336.) Cases cited: Whirley v. Whiteman, 1 Head, 617; Railroad v. Pugh, 97 Tenn., 637; Dush v. Pitzhugh, 2 Lea, 307; Railway Co. u. Hull, 88 Tenn., 35; Saunders v. City Suburban Railway,-99 Tenn., 135; Barr v. Railroad, 105 Tenn., 547. 4. Charge or Court. Refusal of requests. If the Court’s charge as given covers a request for further instructions, it is not error to refuse it. (Post, p. 336.) 5. Same. Same. It is not error for the Court to refuse to give a request instructing the jury that a street railway company has a preferential right of way, in the operation of its cars at street crossings, over vehicles and pedestrians. Such companies have no snch preferential right. (Post, pp. 336, 337.) Cases cited : Citizens’ Rapid Transit Co. v. Seagrist, 96 Tenn., 119; Street Railway Co. v. Howard, 102 Tenn., 471. 6. Same. Same. It is error for the Court to refuse to give a request for further instructions, not covered by the principal charge, presenting defendant’s theory that a street railway company is not liable for injury caused by collision with a vehicle that came suddenly on the track and so near its approaching car that the accident could not be averted by the motorman, although he exercised due care and did all that was possible to prevent the collision. (Post, pp. 337-339.)
108 Tenn. 340Saunders v. Savage (1902)
CONSTITUTIONAL Law. Subject and title of statutes. A statute is unconstitutional and void, as embracing more in its body than is expressed in>its title, which, under the title “An act authorizing parties defendant in certain actions to sever, and to have the cause as to themselves transferred to the county of their residence,” provides not only for transfer of causes where there is a plurality of defendants and severance, but likewise authorizes such transfer where there is only a single defendant. Constitution construed: Art. II, § 17. Act construed: Acts 1871, Ch. 136. Code construed: (jg 4559-4566 (S.); 3551-3558 (M. &V.). Cases cited: State v. Bradt, 103 Tenn., 584; Hyman v. State, 87 Tenn., 109; State ex rel v. Schlitz Brewing Co., 104 Tenn., 736.
108 Tenn. 347Traughber v. Smelser (1902)
1. Juey Trial. Erroneously refused in Chancery Court. It is error for the Chancellor to refuse complainant’s demand for jury trial of the issues of fact presented by his bill, and denied by the answer, averring the making of a will by a testator when he was sane and its destruction by him when insane, and seeking to set it up, and also averring conveyance of the devised property by him while insane, and seeking to set it aside. 3. Court of CHANCERY Appeals. Finding of, in double aspect. Where the Court of Chancery Appeals reverses a chancery cause on complainant’s appeal, on account of the Chancellor’s refusal of his demand for a jury trial and remands the cause for a new trial, and likewise embraces in its opinion a finding in complainant’s favor upon the facts, refusing, however, to pronounce final decree thereon, this Court will not, upon complainant’s appeal from that decree, permit him to abandon his claim for new trial and take final decree on the finding of facts in his favor. 3. Costs. Adjudication of. It is not error to adjudicate aliquot parts of the costs of a chancery cause against the several defendants and to refuse to pronounce joint decree for same against all of the defendants, where the defendants claim separate undivided interests in the property involved, which are not identical, but to some extent hostile.
108 Tenn. 353Woolard v. Nashville (1902)
1. Emihent Domain. Statutory method of condemning property exclusive. The method prescribed by statute for condemnation of private property for public use is exclusive. And the owner of property taken for public use must pursue the remedy prescribed by the statute, and cannot abandon that remedy and maintain an action against the taker for damages. (Post, p. 358.) Cases cited: Mitchell v. Franklin Turnpike Co., 3 Hum., 456; Colcough v. Nashville, etc., R. Co., 2 Head, 171. 2. Same. City’s power to condemn for viaduct and its approaches sustained. A municipal' corporation whose charter authorizes it “to take and appropriate ground for widening streets or parts thereof, or for laying out new streets, avenues, squares, parks, or promenades, when the public convenience requires it, ” under certain provisions oí the Code regulating the exercise of the power of eminent domain, has power to condemn private property necessary to the construction of a viaduct and its approaches over and along an existing street. (Post, pp. 359, 360.) Act construed: Acts 1833, Ch. —. 3. Same. Construction of statutes relating to is strict. Statutes relating to the taking- of private property for public use are strictly construed, and the courts cannot dispense with forms and conditions therein prescribed for protection of the property owner upon any idea that they are nonessential. (Post, p. 361.) Case cited: White v. Railroad, 7 Heis., 540. 4. Same. Prepayment of price required. Prepayment by a city of the price of private property taken for public use for the erection of a viaduct and its approaches is required by a statute providing that “on payment of said damages into the office of the Recorder, for the benefit of the owner of the land, the Mayor and Aldermen, first allowing said owner a reasonable time therefor, may order the street, alley, or commons to be opened.” (Post, pp. 360-362.) Code construed: Code § 1982 (S.); § 1663 (M. & V.); § 1389 (T. & S.). 5. Same. Abandonment of condemnation proceeding by city does not exist, when. A city will not be held to have abandoned its claim to private property condemned for public use — e. g., for a viaduct and its approaches, by the mere fact of its failure to pay the assessed value thereof into the office of the Recorder as required by the statute, where it is clear that abandonment was not intended or in fact made, but the city, on the contrary, has taken possession of the property, and in fact appropriated it to the use for which it was condemned. (Post, pp. 362-366.) Case cited: Tuttle v. Knox County, 89 Tenn., 157. 6. Same. Prepayment of price of condeimied property waived by owner, when. A party for whose benefit a constitutional or statutory provision is made may waive same expressly or by implication. And the owner of property condemned by a city for public use — e. g., for erection of a viaduct and its approaches, waives his constitutional and statutory right to have the price thereof paid before it is actually taken, by appearing before the commissioners appointed to assess its value, and undertaking to control the award or the amount of it, and by failing to appeal therefrom, and by permitting the city, without insisting upon prepayment of the price fixed, to take possession of same and erect the proposed improvements. (Post, pp. 366-368.) Case cited: Anderson v. Turbeville, 6 Cold., 150. 7. Same. Statute not void for failure to requi/i'e notice of conderrmation proceedings, when. A statute authorizing condemnation of private property for public use must, to be valid, require reasonable notice of the condemnation proceedings to be given the property owner, but such requirement need not be express, but may be implied. And the giving of the requisite notice is necessarily implied from a provision in the statute permitting the property owner to appeal from the award made by the commissioners appointed to assess damages. (Post, pp. 368-370.) Code construed: 2 1982 (S.); $ 1662 (M. & V.); \ 1389 (T. & S.). 8. Municipal Coepoeations. Ordinance vaUdly passed, when. A city ordinance for the condemnation of private property for public use — e. g., for a viaduct and its ¡approaches, is not one “for public improvement and public expenditure,” that must originate with the Board of Public Works, within the meaning of a provision in the city charter requiring that “all bills for public improvement and public expenditure shall be prepared and signed by the Board of Public Works and introduced in the City Council by the Board of Public Works,” especially where other provisions of the charter require the Board of Public Works to make a “careful estimate” of the cost of work or material essential to any “work or purchase ” they may deem advisable, and to transmit this estimate, with an ordinance authorizing the necessary expenditure therefor, to the City Council. (Post, pp. 370-373.) Act construed: Acts 1883, Ch. 114.
108 Tenn. 374Continental National Bank v. First National Bank (1902)
L. SUPREME Court. Disposition of chancei'y cause tried by ju/ry. This Court will not hear a party who has submitted false or im.-material issues for jury trial of a chancery cause, complain that his issues were submitted to the jury’s determination, or of any disposition the jury may have made of same, or of the jury’s failure to make any disposition of them. The Court will, in such case, pronounce decree in accordance with the jury’s finding’s upon the material and determinative issues, disregarding others. (Post, pp. 375-378.) 2. Evidence. Opinion not admissible. It is not competent for a defendant’s witness to express the opinion that the case in which he is giving testimony is a blackmailing scheme. But where, after the defendant has withdrawn such opinion of his witness, the same is reintroduced by the complainant, the latter cannot complain, either of its original introduction or that he is not permitted to contradict it, the matter being immaterial and collateral. (Post, p. 378). 3. Same. General exceptions insufficient. General exceptions to the admission of evidence, stating no grounds for its rejection, are insufficient, and should be disregarded. (Post, p. 379.) 4. Same. Of character. Where in a civil action the business honor and integrity of a party is assailed or necessarily involved, it is competent to prove good character and invoke presumption of innocence on behalf of such person. (Post, p. 379.) Cases cited: Rogers v. Stokes, 87 Tenn., 298; McBee v. Bowman, 89 Tenn., 140; Spears v. Insurance Co., 1 Bax., 370; Henry v. Brown, 2 Heis., 213; Scott v. Fletcher, 1 Tenn., 488. 5. Same. Bwther examination of witness whose deposition is read allowable. It is not error for the Court to permit a party who has read a deposition taken by his opponent to examine the witness orally as to matters not brought out in the deposition. This is matter that rests in the discretion of the trial judge. (Post, pp. 379-383.) 6. Same. Books of bank, how proved. For the purpose of showing that its opinion, expressed to a third party, as to the solvency of a customer was honestly given, a bank may introduce its books, showing its account with such customer, upon'proof of their identity by the cashier, without other proof as to their correctness. (Post, pp. 380, 381.)
108 Tenn. 384Ins. Co. v. Morton-Scott-Robertson Co. (1902)
1. Insurance, Fire. Reaffirmcmce of doctrines enunciated, in former case. The Court reaffirms the doctrines enunciated in the case of Ins. Co. v. Morton-Scott-Robertson Co., reported in 106 Tenn., 558. (Post, pp. 385, 388.) 2. Same. Joint demand for appraisal of loss. One of several insurers of the same property is responsible for a joint, and therefore insufficient, demand for appraisal of loss made by the other companies for the benefit of all, where its agent co-operates with the agents of the other companies, approving and accepting- the benefit of what they did or had done. (Post, pp. 385-387.) 3. Same. Same. By demanding approval or estimate of loss an insurance company concedes its liability under its policy for some amount; and ascertainment of that amount is the only question that remains for determination. (Post, p. 390.) Case cited: Hiekerson & Co. v. Ins. Co., 96 Tenn., 193. 4. Same. Salvage claim. By its refusal to proceed with an appraisal of loss demanded by itself and acceded to by the insurer, an insurance company waives its right, reserved by its policy, to take the salvage; or its proportion of it, in case of concurrent insurance, at its appraised value; and the insured may, in such ease, lawfully dispose of the salvage. (Post, pp. 388-390.)
108 Tenn. 392Behrn v. White (1902)
1. Decree. Vests title at its date, when. A decree directing- reformation of a deed and conveyance of the property involved to the complainant by the Clerk and Master operates, under our statutes, to invest the complainant with perfect title from its date without such conveyance, the Clerk and Master being- a “party” within the meaning of the statute declaring that, “If the decree direct the conveyance, release, or acquittance to be made, and the party against whom the decree is rendered fails or refuses to execute the same in the time specified in the decree, or in a reasonable time, if no particular time is thus specified, the decree operates in all respects as if the conveyance, release, or acquittance was made.” Code construed: §§ 6301, 6302, 6303 (S.); §§ 5234-5236 (M. & V.); §§ 4484-4486 (T. & S.). 2. Innocent Purchaser. Who is. A purchaser or mortgagee is an innocent purchaser whose rights are not affected by the reversal on writ of error, prosecuted after the deed or mortgage was made, of a decree of an inferior court, in force at the date of the deed or mortgage vesting the grantor or mortgagor with title to the property, even though the parties prosecuting the writ of error and succeeding in reversal of such decree are minors. Cases cited: Wooldridge v. Boyd, 13 Lea, 151; Williamson v. Williams, 11 Lea, 355, 363; Anderson v. Ammonett, 9 Lea, 1, 11; Livingston v. Noe, 1 Lea, 55; Winchester v. Winchester, 1 Head, 460; Hurt v. Long, 90 Tenn., 445, 453.
108 Tenn. 398Wilson v. Winters (1902)
1. Deed. Inoperative for wa/nt of delivery and acceptance. A deed is inoperative for want of delivery and acceptance, and does not, therefore, estop the vendor or his heirs to maintain an action against the vendee for recovery of the land, although the vendee has paid and given notes for purchase price, and gone into possession under it, and made valuable improve, ments, where it was signed alone by the husband and left in his possession for signature of the wife, who was too sick at the time to execute it, and thus remained until the husband’s death, and was afterwards executed by the wife and delivered to the grantee. Cases cited: Farrar v. Bridges, 5 Hum., 411; Davis v. Cross, 14 Lea, 637; Ledgerwood v. Gault, 2 Lea, 643. 2. Statute of Fbauds. Memorandum to be effeotime must be delim-ered. And such deed is not effective for want of delivery and acceptance, if sufficient in form, as a memorandum for the sale of lands, required by the statute of frauds. Delivery and acceptance is as essential to such memorandum as to a ■ perfected deed. 3. Answeb. Admissions by. An admission in his answer that a deed, relied upon by defendant, that “ the deed was not delivered,” estops him to insist upon its delivery on the hearing.
108 Tenn. 405Moss v. Maddux (1902)
Bills and Notes. Alteration of, renders void, when. A material alteration of a note — e. g., its amount — made by the principal without the payee’s consent or knowledge, and with the purpose and effect of defrauding him, operates, nevertheless, to render the note void as to innocent sureties, and to release them in toto from liability thereon; an action, even for the true amount due thereon, not being maintainable against them by the payee. Cases cited: Crockett v. Thomason, 5 Sneed, 344; Organ v. Allison, 9 Bax., 459; McVey v. Ely, 5 Lea, 438; McDaniel v. Whit-sett, 96 Tenn., 10; Taylor v. Taylor, 12 Lea, 714; Stephens v. Davis, 85 Tenn., 271.
108 Tenn. 410Herrick v. Fowler (1902)
1. Wills. Powers under and, their eonstruetion. Testatrix, having- a husband and three children, devised her property to the husband for life, adding this clause, to wit: ‘ ‘ Said husband at his death shall have power by will and testament to dispose of the property hereby willed to him between my children as he may deem proper. He, in the future, will be better fitted as time develops to determine as to what' proportion my children shall have of said property. Therefore, I give him full power to dispose of it as between them as he thinks best.” All the children survived testatrix. Only one child survived the husband. One had died leaving children; the other left none. The husband by will gave the entire property to the surviving child, but charged it with one hundred dollars in favor of the children of the deceased child. Held: That the husband’s will, though it did not refer to the wife’s will, was a proper and effective execution of the power conferred by the wife’s will, except so far as it charged the property with one hundred dollars in favor of the children of the wife’s dead child, and that this provision was unauthorized and void. The husband’s power of appointment, under the wife’s will, is limited to the wife’s children that survive him, and does not extend to her grandchildren. (Post, pp. 413-420.) Cases cited: Jarnigin v. Conway, 3 Hum., 50; Cruse v. McKee, 3. Head, 1; Rogers v. Rogers, 3 Head, 660; Womack v. Smith, 11 Hum., 477; Word v. Morgan, 5 Cold., 407; Satterfield v. Mays, 11 Hum., 58; Beasley <u. Jenkins, 3 Head, 191; Bigley v. Watson, 98 Tenn., 353; Puryear v. Edmondson, 4 Heis., 43; Ryan v. Monaghan, 99 Tenn., 338; Blass v. Helms, 93 Tenn., 166; Franklin v. Franklin, 91 Tenn., 119; Forrest v. Porch, 100 Tenn., 393; Parrish v. G-roomes, 1 Tenn. Oh., 581; Connell v. McKenna, 3 Sh. Cas., 190; Haywood’s Heirs v. Moors, 3 Hum., 585; Cathey v. Cathey, 9 Hum., 470; Bostick v. Winton, 1 Sneed, 538; Young v. Insurance Co., 101 Tenn., 313; Guaranty Trust Co. v. Jones, 103 Tenn., 343. 2. Deed, Powers under and their construction. A deed conveyed property “to F. C. Herrick during his lifetime . . . with the power to dispose of the same at his death, by will or testament, between the children, Harriet. R. Herrick, and to the heirs of F. C. Herrick and Harriet R. Herrick, above designated, forever.” The Herricks were husband and wife and had three children, all of whom survived the wife, and only one of whom survived the husband. The other two died, one leaving children and the other not. The husband devised this property to the surviving child, and charged it with one hundred dollars in favor of the grandchildren. Held: The husband’s will was a proper and effective execution of the power conferred by said deed, except so far as it charged the property with one hundred dollars in favor of the grandchildren, and that this was unauthorized and void. (Post, pp. 414-421.) 3. Rowees. ni/usory appointment under. Giving a small or nominal sum in the execution of a power, conferred by will or deed, is not illusory, where the donee of the power has advanced his share to the complaining party before executing the power, and assigns this as his reason for not giving a substantial sum in execution of the power. (Post, p. 420.)
108 Tenn. 422McBroom v. Whitefield (1902)
1. Homestead. Attaches to interest of a cotenant severed Toy parol. Where land is devised to several as tenants in common, with direction to the executor to divide same among' them, homestead attaches to the share assigned to one of the tenants by the executor, although it is done in parol only. (Post, pp. 423, 424.) Case cited: Meacham v. Meacham, 91 Tenn., 532. 2. Same. Joinder by infant wife in husbcmd’s deed does not defeat. The joinder of an infant wife in her husband’s deed conveying the homestead property does not estop her and her husband to recover homestead therein upon her disaffirmance of the deed seasonably made. (Post, p. 425.) Cases cited: Scott v. Buchanan, 11 Hum., 467; McGan v. Marshall, 7 Hum., 121; Wheaton v. East, 5 Yer., 59; Bradshaw u. Van Valkenburg, 97 Tenn., 316; Walton v. Gaines, 94 Tenn. 421. 3. Same. Same. And her right of disaffirmance continues, not only during her minority, but until she is discovert. (Post, pp. 425, 426.) 4. Same. Same. Her right of disaffirmance is not dependent upon her return of the consideration, when it is paid to the husband and not to herself. (Post, p. 426.) Case cited: Bradshaw v. Van Valkenburg, 97 Tenn., 323. 5. Same. Effect of invalid deed for. But such deed passes title to the vendee subject to the homestead right. (Post, p. 425.) Cases cited: March v. Bussell, 1 Lea, 543; Case Co. v. Joyce, 89 Tenn., 352; Cox v. Keathley, 99 Tenn., 522. 6. Same. Not subject to attorney’s Men for fees. Homestead right of husband and wife is not subject to lien.for fees of an attorney for services rendered in an action for its recovery, and cannot he sold for same. (Post, pp. 428, 427.) Constitution construed: Art. XI, § 11. Code construed: § 3798 (S.) ; § 3935 (M. & V.); \ 3110a (T. & S.). Case cited: McLean®. Lerch, 105 Tenn., 693.
108 Tenn. 428Turnpike Co. v. Yates (1902)
1. Motion in Abbest. Maintainable after demwrer. A demurrer to a declaration does not preclude a motion in arrest on the same grounds, and a fortiori does not preclude motion in arrest on different grounds from those relied on in the demurrer. (Post, pp. 429-431.) 2. Dbclabation. A declaration in an action against a turnpike company for an injury sustained by the plaintiff while passing through one of its gates, by the falling of a pole, is sufficient which avers the duty of the defendant to erect and maintain safe and suitable gates, “but that defendant failed, negligently, willfully, and wrongfully to do this, ” and that plaintiff, ! ‘ by reason of such failure of duty on the part of defendant, was injured by the falling of a pole upon her head, body, and breast, while lawfully, and in the exercise of proper care and caution, was passing through one of defendant’s gates,” about eight miles from the city of Nashville, and under said pole raised by defendant’s servant to enable her to pass. It is not essential to describe more specifically the location of the gate or to aver more specifically the defendant’s negligence. The law implies negligence from the averment of the injury. (Post, pp. 431-434.) Cases cited: Railroad v. Mitchell, 11 Heis., 400; Sommers v. Railroad, 7 Lea, 201; Young v. Bransford, 12 Lea, 237. 3. Vebdict. For $2,500 sustained by the facts. The Court, upon the facts set out in its opinion, sustains a verdict of |2,500 against a turnpike company for an injury caused by the falling- of a pole upon a traveler at one of its toll-gates. (Post, pp. 434-437.) 4. Chabge op Coubt. Refusal of request as to contributory negligence not cause f@r reversal, when. . Where there is no proof of negligence on the part of the plaintiff, the Court’s refusal to give requests on that subject made by defendant does not constitute reversible error. (Post, pp. 437, 438.) 5. Negligence. Negligence of driver not imputable to Ms companion. Where a person, while riding in the carriage of another by invitation, is injured by the negligence of a third party, he may recover against the latter, notwithstanding the negligence of the owner of the carriage in driving- his team may have contributed to the injury, where the injured person is without fault and had no authority over the driver. (Post, pp. 438-441.)
108 Tenn. 442Ex parte Smithson (1902)
ATTORNEY'S Fees. Amount of, not fixed on ex parte application. Attorneys for an infant, who has recovered judgment for damages, are entitled to lien on the recovery for reasonable fees for services, hut are not entitled, on an ex parte application made in the case, to have the amount of their fees fixed by the Court.
108 Tenn. 444Paper Co. v. Shyer (1902)
Judgment. Against nonresident void, when. A personal judgment for money rendered against a nonresident, who is not served with process and does not appear, in a proceeding hy attachment of his property, subjecting the attached property and awarding execution for the unsatisfied balance and costs, is coram non judioe and void, as being without “due process of law,” although authorized by statutes of the State, when called in question either in the courts of this State or of another State, so far as it exceeds the amount for which the attached property is sold. Constitution construed: U. S. Const., XIV Amendment. Code construed: §§5238, 5284, 5286, 5298 (S.); §§3478, 3524, 3526, 3538 (M. & V.); §§ 4219, 4265, 4267, 4279 (T. & S.). Cases cited: Kyle v. Phillips, 6 Bax., 43; Walker v. Cottrell, 6 Bax., 269; Taylor v. Rountree, 15 Lea, 725.
108 Tenn. 466Ware v. State (1902)
1. New Tbial. Affidavits for, insufficient, when. Affidavits for new trial are properly disregarded by the court where the matters therein contained appear to be fabrications or unworthy of credence, or were known to the complaining party, or should have been in time to have put them in evidence on the trial. (Post, pp. 468, 469.) 2. REASONABLE Dotjbt. Court’s charge not erroneous as to: It is not reversible error for the court to instruct the jury, in a murder case, that “reasonable doubt” is inability, after an investigation of the whole proof “to let the mind rest easily upon the certainty of guilt or innocence," where in other and subsequent portions of the charge, it is made plain that the jury must acquit if they have a reasonable doubt as to the defendant’s guilt. (Post, pp, 469-474). Case cited: State v. Moss, 106 Tenn., 359.
108 Tenn. 475Brinkley v. State (1902)
1. Four-Mile Law. Constitutionality of statutes reaffirmed. The constitutionality of the four-mile law and amendatory statutes reaffirmed. (Post, pp. 476, 477.) Acts construed: Acts 1877, Ch. 23; Acts 1887, Ch. 167; Acts 1899, Ch. 221. Cases cited: State v. Bauseher, 1 Lea, 97; Hatcher v. State, 12 Lea, 368; Moore v. State, 96 Tenn., 544; Harrison v. State, 96 Tenn., 548; State u Frost, 103 Tenn., 686; Cole Mfg. Co. v. Falls, 92 Tenn., 607. 2. Same. Municipal corporation falls within, when. A municipal corporation is incorporated after the amendment of the four-mile law hy Acts 1899, Ch. 221, with not more than two thousand inhabitants, in such sense as to render sales of liquor made therein and within four miles of a schoolhouse unlawful under that amendment where such municipal corporation existed at the date of the amendment, and had a population of not over two thousand inhabitants under the federal census of 1900, but surrendered its charter and reincorporated with the same- territory, under the statutes authorizing such action, after said amendment becomes law. (Post, pp. 477-480.) Act construed: Acts 1899, Ch. 221. 3. Municipal CORPORATION'S. Surrender of charter and reineorpo-ration. The Legislature has power to authorize by general statutes, not only the incorporation of towns in the first instance, but likewise the surrender of their charters and the adoption of new ones. The charter measures the life, as well as the powers, of a municipal corporation. That life is a distinct and undivisible thing, that begins with the grant and ends with the surrender of the charter. Bein corporation of a town that has surrendered its charter is not an amendment of the old charter, but a new corporate entity. (Post, pp. 481, 482.) Acts construed: Acts 1875, Oh. 93; Acts 1877, Ch. 131.
108 Tenn. 483Crabtree v. Bank (1902)
1. Execution. Issued by Justice of the Peace after retwrn of papers for condemnation proceedings, void. An execution and sale thereunder are absolutely void and communicate no title to tbe purchaser where the execution is an alias, issued by a Justice of the Peace, after the original execution had been returned, levied on the land of one of the defendants, and the papers in the ease delivered to the Circuit Court and the case there docketed for the condemnation and sale of the land. The Circuit Court acquired and the Justice’s Court lost all jurisdiction over the entire case, upon delivery of the papers and docketing of tbe case in the former court. (Post, pp. 484-490.) Code construed: H 4808, 4809, 5892 (S.); H 3793, 3794, 4854 (M. & V.); ?? 3080, 3081, 4077 (T. & S.). Cases cited: Mann v. Roberts, 11 Lea, 57; Cowan v. Lowry, 7 Lea, 620; Rumbough v. White, 11 Heis, 260; Anderson v. Kim-brough, 5 Cold., 260; MeGavocku. Schneider, 7 Heis., 467; Mc-Ewen v. Brandon, 2 Tenn., Cas., 48. 2. Same. Same. And such alias execution is not saved from invalidity by the fact that the plaintiff, subsequent to its issuance and levy, dismissed from the Circuit Court the condemnation proceedings on the original execution and levy, though such dismissal, if it had been made before issuance of the alias, might have restored the justice’s jurisdiction of the case. (Post, p. 490.) ■ 3. Estoppel. Acquiescence insufficient to create, when. Acquiescence by overt acts of the owner of land, in the claim made to same without possession by a purchaser thereof at a ■ void judicial sale and by his vendee, will not estop him to recover the land, where both parties, by mutual mistake, supposed the sale valid and the matters constituting the infirmity of the title were apparent on the face of the pnblic record of the court ordering the sale, which was equally accessible to both parties. (Post, pp. 490-493.)
108 Tenn. 494Hayes v. Arrington (1902)
1. Statute of Hbauds. Leases'of realty. A verbal lease of real estate for the term of one year, which.term expires within three years from date of lease, is valid under the statute of frauds, although it is not to be performed within a year from its making. Such leases are, under the statute of frauds, good for three years, and therefore necessarily excluded from that clause which renders void verbal contracts which are not to be performed within a year. Code construed: §3142 (S.); §2423 (M. & V.); § 1758 (T. & S.). Cases cited: Anderson v. May, 10 Heis., 84; Meachem v. Herndon, 86 Tenn., 366. 2. Statutes. Special overrules general provision. It is a rule of'construction that a special provision in a statute will control a general provision which would otherwise include the former.
108 Tenn. 505Overton v. Lea (1902)
1. Will. Bequest to widow takes precedence of others. Where a testator bequeaths to his widow his entire personal estate and an annuity which is charged upon his lands and their rentals, and she accepts the provision thus made, and enters no dissent to the will, she takes the personalty and the annuity, in the absence of any expression or indication of a contrary intent in the will, as a purchaser, and upon consideration of her relinquishment of her statutory right of dower to the estate; and, in the event of deficiency of personal assets for the payment of debts, her bequest will be accorded precedence over other legacies or devises, whether general or special, bestowed as mere gratuities; and the latter will be abated or even exhausted for her protection against creditors of the estate; and for this purpose she will be subrogated to the rights of creditors who have been paid out of the fund or property bequeathed to her. (Post, pp. 508-526.) Code construed: $24139, 4146 (S.); $$3244-3251 (M. & V.); $$ 2398-2404 (T. & S.). Cases cited: Reid v. Campbell, Meigs, 378; Malone v. Majors, 8 ' Hum., 580; Demoss v. Demoss, 7 Cold., 258. 2. Same. Same. Where a testator bequeaths his entire personal estate to his wife, and she accepts it in lieu of dower in the realty, she takes the personalty as between herself and other legatees and de-visees, who are mere volunteers, free from the debts of the estate, although the personalty is ordinarily the primary fund for payment of debts, and there is no provision made by the will for their payment, and notwithstanding the fact that there is a provision charging an annuity in her favor upon the realty and its rentals without mention of other charges. (Post, pp. 526-538.) Cases cited: Hope u Wilkinson, 14 Lea, 21; Evans v. Beaumont, 16 Lea, 713; Latta v. Brown, 96 Tenn., 343; Hawkins v. Skeggs, 10 Hum., 30; Alexander v. Miller, 7 Seis., 65; Douglass v. Baber, 15 Lea, 651. 3. Same. Bequest to widow charged on realty. A widow takes an annuity for life, not the mere annual surplus of rents, which is charged upon the realty itself as well as upon its rents, where the husband’s will provides that-she shall receive, and she accepts, in lieu of dower, inter alia, a bequest of $5,000, and directs a trustee to take charge of the realty and collect its rents, make repairs, pay taxes, insurance, etc., and pay over to her annually said sum of $5,000 out of the surplus, with remainder to others, and then devises the real estate to his children, subject to this annual charge in favor of the widow; and if the surplus of rents proves insufficient to pay said annual sum, she is entitled to have same made good out of the corpus of the real estate so charged with its payment. (Post, pp. 526-538.) Case cited: Morgan v. Pope, 7 Cold., 541. 4. Same. Creates a contingent and determinable fee. A devise of realty to a woman “to and for her own use and benefit absolutely, provided that she does not marry again,” with limitation over to another in the event of her marriage, does not invest her with an absolute estate in fee, but with a contingent estate determinable upon her marriage. The limitation over is valid, and takes effect upon her marriage. (Post, pp. 538-547.) Cases cited: Brien v. Robinson, 102 Tenn., 157; Meacham v. Graham, 98 Tenn., 190: Smithv. Bell, M. &Y., 302; Beanu Myers, 1 Cold., 227; Bradley v. Carnes, 94 Tenn., 27; Williams v. Jones, 2 Swan, 620; Booker v. Booker, 5 Hum., 504; Turner v. Durham, 12 Lea, 322; Troupe v. Hart, 7 Bax., 188; Sevier v. Brown, 2 Swan, 112; Thompson v. McKisick. 3 Hum., 634; Davis v. Richardson, 10 Yer., 292; David v. Bridgeman, 2 Yer., 558; Deadrick v. Armour, 10 Hum. ,„588; Read v. Watkins, 11 Lea, 158; Brown v. Hunt, 12 Heis., 409; Pool v. Pool, 10 Lea, 486; Bramlet u Bate, 1 Sneed, 554; Cowan v. Wills, 5 Lea, 682; Ryan v. Monagan, 99 Tenn., 338; Ballentine u Speax-s, 2 Bax., 273; Pillow v. Rye, 1 Swan, 185. 5. Same. Conditions in restraint of ma/rriage. Where a son makes a devise to his mother on condition she shall not marry again, with limitation over to another if she does, the condition is not void as being in restraint of marriage, and her estate will determine and the limitation over will take effect upon her marriage. (Post, pp. 548-554.) Cases cited: Gourley v. Thompson, 2 Sneed, 386; Hughes v. Boyd, 2 Sneed, 511;.Duncan v. Phillips, 3 Head, 417; Lane v. Crutch-field, 3 Head, 452; field v. Hancock, 10 Hum., 368; Herd v. Catron, 97 Tenn., 662. 6. Same. Conditions against alienation. It is a valid conditional limitation upon the devise of property by a son to his mother, that none of the property so devised shall go by inheritance, devise, gift, or otherwise from the mother to a named sister of the testator, or her husband, or their descendants, or any one of their name, and that, in the event of any such disposition, the property shall go to another named person. (Post. pp. 554, 555.)
108 Tenn. 557Edmondson v. Board of Education (1902)
. 3TEOM SHELBY. Appeal from tbe Chancery Court County. F. H. Heiskell, Ch. ' of Shelby
108 Tenn. 567D'Arcy v. Mutual Life Ins. (1902)
1. INSURANCE. Service of -process on foreign insurance company. Acts 1875, Oh. 66, provided that foreign insurance companies, desiring to do business in this State, should file with the Insurance Commissioner a power of attorney authorizing the Secretary of State to acknowledge service of process for and in behalf of such companies at any and all times after they have complied with the laws of the State and been regularly admitted, even though they may have subsequently retired or been excluded from the State. This Act was expressly repealed by Acts 1895, Ch. 160. The latter Act required of such .companies a power of attorney authorizing the State Treasurer, ex officio Insurance Commissioner, to acknowledge service of process. Between the dates of these two acts the 'defendant, a foreign insurance company, entered the State, filed the power of attorney required by the Act of 1875, took the policy sued on, and retired from the State. It did not file power of attorney as required by Acts 1895. This suit was brought after passage of Act of 1895 and repeal of Act of 1875, and process was acknowledged by the Secretary of State as provided by Act of 1875. Held, The defendant was properly brought before the Court by this acknowledgment of service of process by the Secretary of State under Act of 1875; that the provision of said Act touching acknowledgment of service of process, though pertaining to the remedy on the policy, entered into and formed a material part of the obligation of the contract and could not, therefore, .be constitutionally repealed so far as it affected pre-existing policies; and that such power of attorney was irrevocable as to such policies as were taken by defendant in this State. (Post, pp. 571-575.) Acts construed: Acts 1875, Ch. 66; Acts 1895, Ch. 160. Cases cited: State v. Insurance Co., 106 Tenn., 282; Collins v.Railroad, 9 Heis., 845; MeAdoo v. Smith, 5 Bax., 695; State v. Phcenix Ins. Co., 92 Tenn., 431. 2. INSURANCE, Life. Husband's policy payable to widow if she survives, otherwise to his children construed. Under a life policy payable to the insured’s wife, should she survive him, otherwise to her children by him, the children take several and transmissible interests immediately upon delivery of the policy, subject to be defeated by the survivor-ship of the wife, but not by any transfer of the policy by the insured by deed, will or otherwise. (Post, pp. S7S-581.) Cases cited: Glenn v. Burns, 100 Tenn., 295; Gosling v. Caldwell, 1 Lea, 454. 3. Same. For benefit of married woman survives to her husband. Where the beneficiary in a life policy is a married woman, who dies before the assured leaving a husband who survives the assured, her husband, not her children or other next of kin, takes the benefit of such insurance ju/re ma/riU as he takes other choses in action of the wife; and the husband, not the wife’s personal representative, is entitled to sue for and recover same. (Post, pp. 575-581.) Cases cited: Scobey v. Waters, 10 Lea, 561; Mutual Life Ins. Co. v. Hamilton, 5 Sneed, 269; Handwerker v. Diermeyer, 96 Tenn., 627; Bice v. McReynolds, 8 Lea, 37; Railroad v. Johnson, 97 Tenn., 674; Homrieo v. Laird, 10 Yer., 222; Trafford v. Express Co., 8 Lea, 96; Prewett v. Bunch, 101 Tenn., 736; Tune v. Cooper, 4 Sneed 296.
108 Tenn. 582Hall-Moody Institute v. Copass (1902)
1. CORPORATION. JSleemosynary subject to action for breach of contract. An eleemosynary corporation, managed by trustees, which is devoted to education of boys and girls and supported by tuition fees and voluntary contributions, is liable to action, by a teacher employed by its trustees, for breach of the contract of employment by an unwarranted dismissal of the teacher before the expiration of the term of employment. (Post, pp. 584, 585.) 2. Schools. Regulation of conduct of teachers. Rules prescribed by the trustees of an educational institution for the regulation of the conduct of its teachers in social matters, if not made part of the contract of employment, in order to render their violation a lawful and valid excuse for dismissal of the teacher before the expiration of his term of employment, must not be arbitrary, but reasonable, and such as are essential to preserve the efficiency, usefulness, and influence of the teacher, and to protect the character, discipline, and success of the institution. And rules forbidding teachers to receive callers or have company on school days, from Monday to Friday afternoon, or to have company in the parlor later than 10:30 or 11 o’clock p.M., are, in their application to a young lady teacher, prima facie unreasonable and oppressive. (Post, pp. 585-588.) 3. Charge op Court. Justified by the facts. In an action by a lady school teacher for salary, to which the defense of dismissal for violation of rules regulating her social conduct is interposed, although she is not charged with immoral and unchaste conduct, but only with certain irregularities in her social intercourse, there is no error of which the defendants can complain for the Court to charge, upon evidence to which it was applicable, that ‘ ‘ if she was guilty of going into society or of keeping late hours in company of young men, or going with them to such questionable places as was likely to cause her reputation as a lady to he called into question, or as would impair her ability and efficiency as a teacher, or disqualify her to perform her duties as well as she might otherwise have done her duties as a teacher, then the Board of Trustees would have the right to dismiss her and terminate its contract with her for these reasons.” (Post. pp■ 588-590.) 4. Same. Not erroneous in absence of request for further instructions. And, in such case, it is not error of which defendant can eoih-plain, in the absence of a request for further or more specific instructions, for the Court to charge that plaintiff must have “ habitually ” counseled and encouraged the pupils of the school in the violation of the rules regulating their social inter course, to have justified her dismissal, w.here the proof showed her only dereliction in this particular, if any, was a failure to reprimand certain irregularities of conduct that came under her observation. (Post, pp. 590, 591.) 5. Same. Not erroneous as to teacher's duty in keeping 'order. And, in such ease, it is not error for the Court to charge, in effect, that a school teacher is not an insurer of good order in the school-room, but that she shall be held to the exercise of such care, diligence, and efforts to preserve order as, under the circumstances of the particular case, are reasonably within her power. (Post, pp. 591-593.) 6. Same. Refusal of special requests not erroneous, when. Refusal of the Court to give special requests that are fully covered by the principal charge is not erroneous. (Post, pp. 593, 594.) 7. VeRdict. Sustained by the facts. This Court finds no sufficient reason for setting aside the verdict of the jury in favor of the plaintiff upon the facts which are fully set out in the opinion. (Post, pp. 594-606.) 8. Same. Not set asi de for xmdue influence over jury. This Court refuses to reverse the action of the Circuit Judge, refusing to set aside the jury’s verdict upon the conflicting evidence set out in the opinion, by which it is sought to prove on the one hand and disprove on the other undue pressure and influence brought to bear upon the jury by public demonstrations during the trial. (Post, pp. 606-609.)
108 Tenn. 610Swift v. State (1902)
1. Selling Liquors. Licensed dealer may not sell in another county. A liquor dealer, having license to sell in one county, is properly convicted of unlawfully selling liquor in another county where he has no license, where it appears that his agent, while in the latter county making- collections, gave him an order over the telephone for liquor for a customer, although the liquor was sent from the former county and delivered to the customer through the agency of a common carrier, and the price charged to the customer. Case cited: Bryant u. State, 89 Tenn., 581. 3. Misdemeanor. All participants are principals. All participants in any degree in the commission of a misdemeanor are principals. Case cited: Atkins v. State, 95 Tenn., 475.
108 Tenn. 614Goodwin v. Ray (1902)
Limitation’s, Statute oe. Does not run between bailor and baAlee until demand is made, when. The statute of limitations does not begin to run against the bailor, in favor of the bailee, until the former has made demand, where the bailor has deposited specific money to be kept by the bailee in a safe place for the bailor’s benefit, without any right on the part of the bailee to use or convert same. Code construed: §4477 (S.); §3477 (M. & V.); §2780 (T. & S.). Case cited: Moore v. Fitzpatrick, 7 Bax., 350.
108 Tenn. 618Memphis St. Ry. Co. v. Wilson (1902)
1. Chab&b ob Court. Considered as an enUreiy. In determining- whether the Court’s charge is erroneous, it will he considered as an entirety, and not by detached portions. (Post, pp. 620, 621.) Cases cited: State v. Cagle, 2 Hum., 416; Clark v. Thomas, 4 Heis., 419; Railroad v. Humphreys, 13 Lea, 305; Railroad v. Pugh, 97 Tenn., 634; Railroad -u. Wyrick, 99 Tenn., 505. 3. Same. Correct as to mutual and concurrent proximate negligence. In an action against a street railway company by a person injured by a collision of vehicles at a road crossing, the Court’s charge upon the subject of neglig-ence is not erroneous which states in substance and effect that plaintiff cannot recover unless defendant did some act or omitted some duty that proximately caused the collision and injury, and not then, if his own negligence concurred with plaintiff’s and contributed likewise proximately to the same result. {Post, pp. 620, 621.) Cases cited: Saunders v. Railroad, 99 Tenn., 135; Barr v. Railroad, 105 Tenn., 547; Nashville v. Norman, ante, p. 334. 3. Same. Not erroneous as requiring too high degree of ca/re of street railway company. In an action against a street railway company by a person injured by collision of vehicles at road crossing, the Court’s charge is not erroneous as requiring too high a degree of care of the street railway company to avoid collisions at crossings, which states that the motorman, on approaching a crossing, must have his car under reasonable control, so as to be able to stop it and avoid collisions, where this statement is followed and explained by other language which implies that the motorman is required to keep a lookout ahead on approaching crossings and to exercise ordinary care to see persons and vehicles using or about to use the crossing, and to have his ear under such control as to enable him to avoid collisions with such persons and vehicles as are using- or about to use the crossing in the exercise of due care on their part. (Post, pp. 621-623.) Cases cited: Citizens’ Rapid Transit Co. v. Seigrist, 96 Tenn., 119; Saunders v. Railroad, 99 Tenn., 130.
108 Tenn. 624K. of P. v. Steele (1902)
1. Just Teial. Challenge of ju/rors. Unless an objectionable juror has been forced upon him after his peremptory challenges áre exhausted, a party cannot complain of the Court’s error in compelling him to peremptorily challenge an incompetent juror. (Post, pp. 627, 628.) Case cited: Wooten v. State, 99 Tenn., 189. • 2. Evidence. Expert opinions upon hypothetical case. It is competent for physicians, as experts, to express an opinion as to the cause of death, either from their personal knowledge of the facts of the case or upon a hypothetical statement of the symptoms of the disease as detailed by other witnesses; but it is improper to embrace in the hypothetical case submitted for the opinion of experts such facts as the jury are as competent as the experts to judge of. (Post, pp. 629, 630.) Case cited: Gibson v. Gibson, 9 Yer., 331. 3. Same. Erroneous methods in introduction of, not cause for reversal, when. While it is improper to embody in a hypothetical case for the opinion of experts facts proper only for the jury’s determination, along with other facts proper for expert opinion, still a party who has first resorted to the improper method of examination cannot Complain that his adversary has adopted the same method in rebuttal, and cannot insist upon the withdrawal of the improper evidence thus introduced by himself and his adversary after he has made the experiment. (Post, pp. 630, 631.) 4. Charge oe Court. Need not explain preponderam.ee of evidence. The Court having correctly charged that plaintiff must sustain his case by a mere preponderance of the evidence, is not in error for failure to explain what is meant by the phrase “ preponderance of evidence. ” Such terms as “ preponderance of evidence ” and “ reasonable doubt ” are so plain and well understood that any attempt to explain them is apt to confuse. These are expressions that the most ordinary, as well as the most critical, mind can equally understand. (Post, p. 631.)
108 Tenn. 632Memphis St. Ry. Co. v. Norris (1902)
1. Supreme Coubt. Will not reverse on the facts alone, when. This Court will not set aside the verdict of a jury where there is evidence to support it, although the Court may be of opinion that the evidence, as a whole, preponderates against the verdict. 2. Chabge op Coijbt. Not erroneous as to duties of motorman at crossings, when. In an action by a passenger on a street car against the compan'y for an injury sustained in consequence of a collision with a dray at a crossing, the controversy being as to whether the ■ car ran into the dray or the dray into the ear, it is not error of which the defendant can complain for the Court to charge that the motorman and drayman had equal rights at the crossing, and' were each equally bound to keep lookout for the other, and-to avoid collision with the other, and that plaintiff was entitled to recover only of the one by whose fault the collision occurred.
108 Tenn. 638Donaldson v. Nealis (1902)
1. Bill OB' Review. For error appa/rent does not Me, when. A bill of review for error apparent does not lie to annul a decree upon the ground that the Court rendering it had no jurisdiction of the matter, and that the decree was, therefore, void. Such hill assumes that the Court rendering the decree had jurisdiction, but erred in its rendition. (Post, p. 641.) 2. Same. Same. A bill of review for error apparent does not lie to annul a perfected sale of land made under decree. As the title of the purchaser is not affected by the reversal of such decree, error in its rendition could not be injurious to the complainant. (Post, pp. 641, 642.) 3. Res Adjudicata. What is not. A judgment sustaining a demurrer to a bill attacking a tax sale and dismissing the bill on the ground that it was a collateral attack on a tax proceeding, and, therefore, not maintainable, is not such adjudication of the merits of the ease as precludes the complainant from maintaining another suit to set aside the same tax sale upon another ground — to-wit, that it was void for the reason that complainant was not brought before the Court in the tax proceedings by process or publication. (Post, pp. 642-644.) Cases cited: Thompson u. Blanchard, 2 Lea, 528; Peeler v. Norris, 4 Yer., 331; Welsh v. Harman, 8 Yer.,103; Hodsdenu. Caldwell, 1 Lea. 50; Hurst v. Means; 2 Sneed, 546; Mabry v. Church well, 1 Lea, 416; Murdock v. Gaskill, 8 Bax., 22; Grotenkemper v. Carver, 4 Lea, 375; Parkes u. Clift, 9 Lea, 524; Boyd u. Robinson, 93 Tenn., 28. 4. Publication. Insufficient, when. Publication for a nonresident, made in a proceeding to sell lands of delinquent taxpayers due to a city, is void, which fails to indicate in its caption or elsewhere that the city is the complainant by whom, or for whose benefit, the- suit is prosecuted. (Post, pp. 644, 645.)
108 Tenn. 646Ritt v. True Tag Paint Co. (1902)
1. Appeal. Essential by party seeMng review of Court's aeilon granting a new trial. A party who has taken exception to the Court’s action in granting a new trial and setting aside a verdict in his favor, and has preserved his rights by wayside bill of exceptions, cannot be heard in this Court to complain of such action of the lower Court, unless he has perfected appeal on his own behalf after final trial and judgment. The appeal of the opposite party from the final judgment does not bring this matter up. (Post, p. 648.) Cases cited: Baugh v. Railroad, 98 Tenn., ISO; Jenkins v. Han-kins, 98 Tenn., 545. 2. Same. Sanie. And such party does not perfect his appeal by merely filing a pauper oath reciting that he is about to commence a litigation in this Court by appeal, without securing entry of record showing that his appeal was prayed and granted. (Post, pp. 648, 649.) 3. Charge op Court. Correct as to ordinary care or prudence. The Court’s charge on the subject of plaintiff’s care or prudence in the use of a ladder by which he sustained the injuries sued for is sufficient in these words, to-wit: “If you find from the evidence that any ordinarily prudent, careful man, with the knowledge of the condition of the ladder which the evidence shows [plaintiff] had of it, would have gone upon and used the ladder just as the evidence shows him to have used it, then he cannot be charged with negligence. ” But the Court states that a better, but equivalent, expression of the rule could have been made in these words, to-wit: “If plaintiff was in the exercise of ordinary prudence and care, such as is usually exercised by ordinarily prudent and careful men similarly situated, then he was not chargeable with neg-ligence.” (Post, pp. 649, 650.) 4. Same. Objections to, must be specific. Unless objections to the charge of the Court are made specific and definite, this Court will not pass upon them. (Post, p. 650.) 5. Same. Improper, where there is demurrer to the evidence. Where defendant’s demurrer to the evidence has been overruled, it is improper, and, as to the plaintiff, erroneous, for the Court to charge the jury as to the fact of defendant’s liability for any amount. The measure of defendant’s liability is the only matter to be submitted to the jury in such case. (Post, p. 650.) 6. Dem'ubbeb to Evidence. Properly overruled,, when. Demurrer to the evidence is properly overruled where the evidence introduced and all legitimate inference drawn therefrom present any ground upon which defendant’s liability can be predicated. The Court reviews the facts of this case and holds there is evidence upon which defendant’s liability can be predicated, and that the demurrer was properly overruled. (Post, pp. 650-652.) 7. Mastbb and Sebvant. Master's duty as to tools and appliances. It is the master’s duty to see that the tools and appliances furnished to his servant are safe and in proper condition, and to keep same in proper state of repair. (Post, pp. 651, 652.) Cases cited: Railroad v. Henley, 92 Tenn., 207; Manufacturing Co. v. Morris, 105 Tenn., 660.
108 Tenn. 653Cæsar v. Harris (1902)
Supreme Court. Remands cause for fu/rlh&r proof, when. After the Chancellor had delivered an adverse opinion, but before the decree had been entered, the complainant’s attorney presented his affidavit showing- that, by “ misadventure and oversight,” he had failed to file a deed that was essential to sustain his client’s case, and offered then to file the deed. This was refused. The complainant then asked to dismiss his bill. This was likewise refused. Complainant appealed and moves this Court to remand the cause for further proof. Held, Complainant is entitled to have the case remanded for the introduction of his evidence. Code construed: $ 4905 (S.); $ 3889 (M. '& V.); $ 3170 (T. & S.). Cases cited: Wood v. Neely, 7 Bax., 590; Smyth v. Carden, 1 Swan, 30; Settle v. Marlow, IS Lea, 473; Smith v. Carter, 16 Lea, 537; Insurance Co. v. Bank, 88 Tenn., 369; Bank u Jefferson, 93 Tenn., 537.
108 Tenn. 657Record v. Cooperage Co. (1902)
1. Assignment oe ERROR. Insufficient. Assignment of error that the verdict is “ contrary to the law and the evidence ” is not equivalent to an assignment that there is no evidence to support the verdict, and hence had in this Court. (Post, p. 660.) 2. Witness. Contradiction of party’s own witness. A party who is taken by surprise by the adverse statements of his own witness is permitted, for the purpose of refreshing his memory and awakening his conscience, to ask him if he did not, on a particular occasion, make a contradictory statement. If the witness admits making such contradictory statement, that ends the inquiry; but if he denies making such statement, other witnesses can be called to contradict him only where such statement would be admissible as independent evidence. (Post, pp. 660, 661.) Cases cited: Baxter v. Pope, Meigs, 468; Story v. Saunders, 8 Hum., 663. 3. Same. Examination of. After a witness has been fully examined, it is not error for the Court to refuse to permit him to be required to repeat his testimony. (Post, pp. 661, 662.) 4. Same. Excluding witness not put under rule. It is not error, where the rule has been required, for the Court to exclude a witness who was not put under the rule and had been present and heard all the evidence. (Post, p. 662.) 5. Master and Servant. Servant’s reliance on master’s promise to-repair. In an action by a servant against the master for an injury sustained from the use of a defective machine, which the servant had been induced to continue to use by the master’s promise to repair, it is not error against the plaintiff for the Court to charge that, “if the machine was out of repair, and the plaintiff notified the superintendent of his department of its condition, and was assured that it was ’all right, and, on his assurance, he continued to work with it, without knowing it was dangerous, and was injured as a consequence thereof, he can have recovery,” and in addition charged that plaintiff was not bound to inspect the machine, but was bound to observe such defects as were open to the observation of an ordinarily careful and prudent operative. And such charge is sufficient on this subject to obviate error for refusal to give additional request on this point. (Post, pp. 662, 663.) 6. Same. Duties respecting defective machinery. It is the master’s duty to exercise reasonable care and caution to procure and furnish his servant suitable and safe machinery, and to keep same in a proper state of repair, though he is not required to insure the absolute safety of the servant. The servant is not required to inspect the machine for defects. (Post, pp. 663, 664.) 7. Same. Same. It is a correct statement of the law that the servant assumes all the risks of his occupation if the machinery was in proper repair and the master exercised reasonable care and diligence to keep it in that condition. (Post, p. 665.) Cases cited: Railroad v. Elliott, 1 Cold., 613; Railroad u Jones, 9 Heis., 39; Railroad v. Handman, 13 Lea, 433; Corbett v. Smith, 101 Tenn., 368. 8. Evidence. Photographs admissible. Photographs or pictures of machinery, defects in which are alleged to have caused the injury sued for, are admissible in evidence to illustrate the statements of witnesses. (Post, p. 665.) Cases cited: Machine Co. v. Compress Co., 105 Tenm, 301; Bruce v. Beall, 99 Tenn., 309. 9. Same. Charge correct as drawing inferences. It is not error for the Court to refuse to instruct the jury, on plaintiff’s request, that they cannot find him guilty of contributory negligence upon mere surmise or speculation as to how the accident occurred resulting in his injury, where the jury had been told in the charge that they should determine the case upon the evidence, and that “there is always a limit to inferring a fact. It is this: The inference must be a reasonable deduction rightfully drawn from the facts and circumstances proven. If it cannot be thus deducted, then no inference can be drawn.” (Post, p. 664.)
108 Tenn. 666Memphis Street Ry. Co. v. Newman (1902)
Charge oj? Couet. Error to refuse request presenting party's theory of Ms case. The Court commits reversible error by refusing to give an additional request, seasonably made, and not covered by the original charge, presenting a theory of the case, supported by material evidence, upon which, if found true, the requesting party is entitled to win the suit. Cases cited: Souey v. State, 13 Lea, 472; Railroad v. Egerton, 98 Tenn., 541; Wooten v. State, 99 Tenn., 195.
108 Tenn. 670Railroad v. Bentz (1902)
1. ActioN. Maintainable after nonsuit in Federal Court. Where the United States Circuit Court of Appeals reverses a judgment in favor of plaintiff, declaring that he has no right of recovery, even upon his own theory, under the law as administered by the Federal Courts, and remands the cause for a new trial, and the plaintiff, thereupon, takes voluntary nonsuit aud brings a new action in the State Court, the decision of the Federal Court is not conclusive, either as res adjudicata or as a declaration of the law of the case, upon plaintiff in the prosecution of his action in the State Court, where a different view of the law applicable to the ease prevails, under which he is entitled to recover. (Post, pp. 611-618.) Cases cited: Collins v. Insurance Co., 91 Tenn., 432; Hooper v. Railroad, 106 Tenn., 28. 2. Master and Servant. Who are not fellow-servants. An engineer running a railway train is not, under the decisions in this State, the fellow-servant of a telegraph operator, at a station, whose duty it is to communicate to the engineer orders regulating the running of his train; and the negligence of such operator is not one of the risks that the engineer assumes by virtue of his employment. (Post, p. 678.) Cases cited: Railroad v. D’Armund, 86 Tenn., 73; Railroad v. Jackson, 106 Tenn., 438. 3. Damages. Erroneous charge as to, in personal injury case. In an action by a widow to recover damages sustained from the negligent killing of her husband, it is reversible error for the Court to instruct the jury that they may consider such loss of advice, counsel, comfort, and enjoyment as resulted to her from her husband’s death as elements of the damages they may award her. (Post, p. 678, 679.) Acts construed: Acts 1883, Chapter 186. Cases cited: Railroad v. Wyriek, 99 Tenn., 509.
108 Tenn. 681Carson v. Lumber Co. (1902)
1. CONTRACT. For sale of standing trees construed. Under a contract for sale of standing trees, which contains no provision as to time for cutting and removing same, the grantee has the right implied by law, to enter upon the lands and cut and remove the same within a reasonable time, but not after the lfipse of such reasonable time. 2. Same. Same. What is a reasonable time for removal of trees under such a contract is a mixed question of law and fact, to be determined upon the facts of each particular case, such as the condition of the land on which the trees are standing, its accessibility, whether subject to overflow or not, and, if subject to overflow, whether such overflow has the effect to aid or hinder the grantee in removal of the trees, the number of trees involved, and the grantee’s facilities for cutting and removing same. 3. Same. Same. Case in judgment. The Court holds that, under the peculiar facts of this case, set out in the opinion, a period of ten years from the date of the contract, excluding therefrom such period as the grantee may have been enjoined from operating on the land, is a reasonable time for cutting and removing trees under such contract.
108 Tenn. 690Craig v. McKnight (1902)
1. ChahcueRY Pleadings. Material defendant. The principal obligor is a material defendant to a bill brought by his surety on a bond to obtain its surrender and cancellation on the ground that the surety was induced to sign it by the fraudulent representations of the principal obligor and the obligees therein. And such suit can be maintained in the jurisdiction where the principal obligor resides against him and the obligees, although the latter reside outside that jurisdiction. Cases cited: Birdsong v. Birdsong, 2 Head, 290; Jackson u Tier-nan, 10 Yer., 175; Simonton v. Porter, 1 Bax., 215. 2. Rescission. Action for, not premature, when. An action for rescission and cancellation of a bond on the ground of fraud practiced in its proeument is not prematurely brought by the obligor, although the obligee has never sought to enforce it by suit.
108 Tenn. 697Telephone & Telegraph Co. v. Hunt (1902)
VARIANCE. Does not exist between declaration and evidence, when. There is not a fatal variance between the declaration and the evidence offered in support of it, where the declaration avers that plaintiff’s injury resulted from the negligence of defendant, a telephone company, in having rotten and defective poles and in permitting its wires to remain down in the streets, in a dangerous condition, for an unreasonable length of time, without stating how the wires came to be down, and the evidence shows that the poles were unsafe and that they were blown down by a storm, and that the wires were left on the streets, in a dangerous condition, for an unreasonable length of time.
108 Tenn. 700Board of Directors v. Bodkin Bros. (1902)
1. CORPORATIONS. Board of Directors of Levee District created a pubUc corporation. An Act of the Legislature incorporating a Board of Directors and authorizing it to build; rebuild, and repair levees for the protection of a large district from overflow; to make all necessary contracts, and to levy taxes upon the inhabitants of the district and collect them, and to issue bonds for said purposes, constitutes such Board of Directors a public corporation, clothed with governmental duties and functions of the same general class as cities and counties. (Post, p. 706.) 2. Sam®. Property of public, not subject to attachment. And the property and money g of such public corporation necessary to the exercise of its corporate municipal functions- — e. g., money deposited in bank to meet interest on its bonds — is not subject to attachment for its debts or obligations. (Post, pp. 706, 707.) 3. Same. PubUc, not subject to suit outside the jurisdiction of its situs. And such public corporation, created in and by another State, is not subject to suit in the courts of this State for breach of contract, although its charter subjects it to suit in the Courts of the State of its creation, and notwithstanding it may maintain an office in this State, in charge of an officer, upon whom * service of process is effected. Such corporation is suable only in the Courts within whose jurisdiction it has its situs. (Post, pp. 707-712.) Cases cited: Railroad v. Taylor, 6 Heis., 408; Tappan v. Railroad, 3 Lea, 106; Moore v. Tate, 87 Tenn., 725. 4. Same. Objection to Court’s jurisdiction not waived. And such corporation, when sued in the Courts of an outside jurisdiction, does not waive.the objection by failing to plead in abatement. The objection is, in such case, to jurisdiction over the subject-matter of the litigation, and cannot be waived. (Post, pp. 712, 7IS.)
108 Tenn. 715Hely v. Lee (1902)
X. OhanceRY Pleading and Practice. Cross-Mil does not Ue as Mil of interpleader. A defendant, who disputes his liability for any part of the debt sued for, cannot, by cross-bill, bring into Court another claimant of the debt and cause him and the complainant to inter-plead. 2. Appeal. Prematwre, when. The Court holds the appeal in this ease was prematurely granted, upon the state of the record set out in the opinion.
108 Tenn. 719Taylor v. Sledge, Wells & Co. (1902)
1. Jury Triad. Right of plaAmtiff to waime. A plaintiff who has demanded a jury trial may waive same if defendant makes no objection at the time. (Post, pp. 721, 722.) Cases cited: Warren v. Grocery Co., 96 Tenn., 574; Railroad v. Martin, 85 Tenn., 184; Coulter v. Sewing Machine Co., 3 Lea, 115; Railroad u Trent, 16 Lea, 419. 2. Writ of Inquiry. Executed at term subsequent to judgment by defaMlt. A writ of inquiry awarded on a judgment by default may be executed at a subsequent term. (Post, p. 722.) 3. Judgment. On bond for writ of error and supersedeas. There being no statute applicable to such case, the bond for writ of error and supersedeas to reverse a judgment on a claim for unliquidated damages must be in the amount and on the conditions fixed by the Judge’s fiat, and judgment thereon, upon dismissal of the writ of error, should conform to the amount and conditions of the bond. (Post, pp. 722, 723.) Code construed: §? 4894, 4895, 4920 (S.); ?? 3879, 3880, 3904 (M. & V.); 3162, 3163, 3184 (T. & S.).
108 Tenn. 724Insurance Co. v. Dunscomb (1902)
1. INSURANCE, Lies. Of debtor’s Ufe for benefit of Ivts creditor. A creditor has an insurable interest in the life of his debtor to the extent of the indebtedness. . Such insurance may be taken in the name of the creditor himself or in the name of the debtor for the creditor’s benefit. It may be taken either in payment of the debt or merely as collateral security. The fact that the debtor could, at the date of the issuance of the policy, or at any subsequent date, have defeated recovery of the debt by a plea of the statute of limitations, does not defeat or terminate the creditor’s insurable interest in the debtor’s life, or render the policy void. (Post, pp. 725-728.) 2. Same. Same. Where a creditor takes insurance on the life of his debtor, either in payment or as collateral security, the fact that the debt was barred when the policy issued, or became barred or affected with presumption of payment before the policy was payable, does not debar the creditor from recovering- or receiving- the proceeds of the policy as against either the insurer or the personal representatives or next of kin of the assured. (Post, pp. 729-735.) 3. Same. Assignee of policy entitled to recoup premiums advanced. The assignee of a life policy — e. g., a creditor who holds insurance upon the life of his debtor — is entitled to reimbursement out of the proceeds of the policy for annual premiums advanced and paid for the assured, and that, too, even if the assignment is, for any reason, void. (Post, pp. 735, 736.) Case cited: Scoby v. Waters, 10 Lea, 557. 4. Payment. Presumption of, rebuttable. Presumption of payment of a debt arising from lapse of sixteen years after its maturity is rebuttable, and may be overcome by evidence tending to show that it is still due. The condition of the debtor as to solvency, or other circumstances, may repel the presumption. The lapse of more than sixteen years is held not to raise presumption of payment upon the facts of this case set out in the record. {Post, pp. 733-735.) Cases cited: Stanley v. McKinzer, 7 Lea, 457; Husky v. Maples, 2 Cold., 24; Yarnell v. Moore, 3 Cold., 173; Lyon v. Guild, 5 Heis., 175; Garter v. Wolfe, 1 Heis., 700; Fisher v. Phillips, 4 Bax., 243. Anderson v. Settle, 5 Sneed, 202. 5. Same. Effect of plea of. A plea of payment admits the debt, and the onus of proving- payment is on the defendant. {Post, p. 735.) Case cited: Bass v. Shurer, 2 Heis., 216. 6. CORPORATIONS. Eight of stockholders or their representatives to recover assets of extinct corporation. Stockholders of a corporation that has become extinct by expiration of its charter, or their personal representatives, are entitled to recover its assets for prorata distribution among themselves. according to their holdings of shares, where such assets constitute a surplus after full administration of its affairs and payment of all of its debts. {Post, pp. 736, 737.) Code construed: \ 5187 (S.); \ 4168 (M. & V.); I 3431 (T. & S.). Cases cited: State v. Bank, 5 Bax., 107; O’Connor v. Memphis, 6 Lea, 732.
108 Tenn. 739White v. Railroad (1902)
1. DECLARATION. Insufficient on derrvwrrer. A declaration, wherin the plaintiff seeks to recover of a railroad company damages for the killing of his intestate by the falling of its coach from a negligently constructed or kept track, is fatally defective, on demurrer, for failing to state that the intestate bore some relation to the company, such as passenger or employe, other than that of a mere trespasser, demanding of the company a degree of care other than that of merely abstaining from the infliction of wanton, wilful, or intentional injury. In the absence of averment that plaintiff’s intestate bore other relation to the company, it will be presumed that he was a mere trespasser. Cases cited: Railroad v. Meaehem, 91 Tenn., 428.