117 Tenn.

Volume 117 — Tennessee Reports

50 opinions

117 Tenn. 1Second National Bank v. Prewitt (1906)
PROM MADISON. Appeal from Chancery Court of Madison County.— A. G. Hawkins, Chancellor.
117 Tenn. 13Illinois Cent. Railroad v. Porter (1906)
1. COMMON CARRIER. Railway postal clerk is a passenger. A railway postal clerk, in the discharge of his duties on a railway-train, is a passenger, and his rights are to he determined by the rules of law applicable to that relation. Cases cited and approved: B. & O. R. TL Co. v. State, 72 Md., 36; Arrowsmith v. Railroad Co., 57 Fed., 165; N. Y., etc., R. Co. v. Seyholt, 95 N. Y., 562; Gleeson v. Va. Midland R. Co., 140 IT. S., 435. 2. ’ SAME. Injury to passenger. Derailment is prima facie proof of negligence. May be rebutted., A passenger suing for injuries establishes a prima facie case oí negligence by showing the derailment of the train and the consequent injury; but such presumption may he rebutted by showing that the injury arose from an unavoidable accident, which could not have been prevented by the highest applicable degree' of care and foresight. ‘ Case cited and approved: Railway v. Kuhn, 107 Tenn., 112. 3. SAME. Same. High rate of speed not negligence per se. The mere fact that a train is running at a high rate of speed is not negligence, if the condition of the track and road bed, and the character of the engine and equipment, are such that that speed may be safely maintained. Cases cited and approved: Railroad Co, v. Winters, 85 Tenn., 240; Railroad* Co. v. Milam, 9 Lea, 223; Fitch v. Railroad Co., 3 Tenn. Cas., 676. 4. MEASURE OF' DAMAGES. No deduction for salary received by injured party as a gratuity. The salary received by a railway mail clerk as a mere gratuity from the government during the time he was incapacitated for ■work, by reason of a personal injury inflicted by the negligence of another, cannot be considered in determining the amount of damages to which he is entitled in consequence of the injury. Cases cited and approved: ÜST. C. & St. L. Ry. v. Miller (Ga.), 47 S. E., 959, 67 L. ,R. A., 87; M., K. & T. R. R. Co-, v. Rains, 40 S. W., 635; M., K. & T. R. R. Co. v. Flood, 79 S. W., 1106; Carroll v. Mo. Pac. R. Co., 88 Mo. 239; L. & N. R. R. Co. v. Carothers, 23 Ky. Law Rep., 1673; Pittsburgh C. & St. L. R. C. Co. v. Thompson, 56 Ill., 138; Balt. City Pass R. R. Co. v. Baer, 90 Md., 97; Regan v. N. Y. R. R. Co., 60 Conn., 134; Harding v. To-wnshend, 43 Vt., 536. Cases cited and disapproved: DSÍnkwater v. Dinsmore, 80 N. Y., 390; Montgomery R. R. Co. v. Mallette, 92 Ala., 210; Lee v. W. U. Tel. Co., 51 Mo. App., 375; Ephland v. R. R. Co., 57 Mo. App., 147.
117 Tenn. 33Kavanaugh v. Security Trust & Life Insurance (1906)
PROM SHELBY. Appeal from the. Chancery Court of Shelby County.— F. H. Heiskell, Chancellor. Mb. Justice Neil made the following statement of facts: The defendant issued a policy July 9, 1897, on the life of J. M. Bowen in the sum of $5,000. This was assigned August 9,1897, to complainants, L. T. and W. K. Kavanaugh, to secure a debt due them from Bowen. There was an agreement which was known to the com-' pany that the complainants were to pay the premiums.
117 Tenn. 58Jamison v. State (1906)
1. AGE OF CONSENT LAW. Each, carnal knowledge is a separate, substantive offense; but evidence of acts other than that charged is competent. While under the age of consent law, each unlawful act of carnal knowledge is a separate substantive offense, yet in prosecutions for the violation of such law and cognate crimes, evidence of other acts of illicit sexual intercourse, both prior and subsequent to the act charged in the indictment, is competent, as tending to establish the commission of. the particular act under examination, a.s corroborative of the evidence of witnesses thereto, and for the purpose of showing the relation of the parties; but the court should limit the scope and pur- ■ pose of such evidence. (Post, pp. 61, 62.) Acts cited and construed: 1901, ch. 19. Cases cited and approved: Holt v. State, 107 Tenn., 541; Sykes v. State, 112 Tenn., 572. 2. SAME. Same. State required to elect upon which offense a conviction will be sought. Where, in a prosecution for the violation of the age of consent law, the State is permitted to prove several acts of illicit sexual intercourse other than the particular act charged in the indictment, and one act after the age of consent, it is reversible error for the trial judge to refuse to compel the State to elect upon which one of these offenses it will ask for a conviction. (Post, pp. 61-67.) Acts cited and construed: 1901, ch. 19. Cases cited and approved: Fisher v. State, 33 Tex., 792; Lunn v. State, 44 Tex.. 85; Simms v. State, 10 Tex. App., 131; Hamilton y. State (Tex. Cr. App.), 37 S. W., 431; Batchelor y. State (Tex. Cr. App.), 55 S. W., 491; Stone v. State (Tex. Cr. App.), 73 S. W., 956; Powell v. State (Tex. Cr. App.), 82 S. W., 516j Smith v. Commonwealth (Ky.), 60 S.. W., 531; State y. Hurd, 101 Iowa, 391; State y. King (Iowa), 91 N. W., 768; Stockwell y. State, 27 Ohio St., 563; Long v. State,' 56 Ind., 182; State y. Lancaster, 78 Pac., 1081. Cases cited and distinguished: Holt y. State, 107 Tenn., 541; Payne y. State, 112 Tenn., 587; State y. McClain, 137 Mo., 314. 3. SAME. A lewd female in the sense of the provision prohibiting a conviction for carnal knowledge with such, defined. A lewd female, in the sense of the provision in the age of consent law prohibiting a conviction when the female is at the time and before the carnal knowledge a lewd female, is a female guilty of illicit intercourse • at and before the time of the alleged commission of the offense charged, no matter with what secrecy said acts may have been committed, and such acts need not be open, public, and notorious; for the offense denounced by said statute is predicated upon the character rather than upon the reputation of the female for chastity and virtue, and there can be no conviction for carnal knowledge of a female who is lewd, privately and secretly, or publicly and notoriously, at the time and before the carnal act charged. {Post, pp. 67-71.) Acts cited and construed: 1901, ch. 19. Cases cited and approved: Brooks v. State, 2 Yer., 482; State v. Moore, 1 Swan, 136; Commonwealth v. Wardell, 128 Mass., 54; United States v. Bebout (D. C.), 28 Fed., 522; United States v. Males (D. C.), 51 Fed., 41. 4. SAME. Same. Lewdness of female that bars a conviction must be at and before the carnal act charged; reformation of female. The previous lewdness of the female will not prevent or bar a conviction, where she had reformed, and was not lewd at the time and before the carnal knowledge; for to prevent a conviction, the female must be lewd at as well as before the carnal knowledge charged. (Post, pp. 71, 72.) Acts cited and construed: 1901, ch. 19. Cases cited and approved: Scruggs v. State, 90 Tenn., 82; South v. State, 97 Tenn., 496; Griffin v. State, 109 Tenn., 17; State v. Grigg, 104 N. C., 886; Bowers v. State, 29 Ohio St., 542; State v. Carrón, 18 Iowa, 372; Robinson v. Powers, 129 Ind., 485.
117 Tenn. 73English v. Ricks (1906)
1. 'EVIDENCE. Attorney and client. Confidential communications not admissible. An attorney, authorized under his license to practice only before justices of the peace, cannot testify to a confidential communication with his client, although the client was seeking to institute a suit which was beyond the jurisdiction of a justice of the peace. 2. SAME. “Will contest,. Statements of testator concerning’ ■marital relations inadmissible. In a suit to contest a will in which the wife of testator is the principal beneficiary, on the grounds of mental incapacity, fraud and undue influence, evidence of statements made by testator concerning the relations between himself and his wife is inadmissible. Case cited and approved: Brewer v. Ferguson, 11 Humpih., 565. 3. ^NEW TRIAL. Improper conduct of attorney is reversible error, when. The conduct of an. attorney in continuing to ask incompetent questions after they had been excluded by the trial judge, and in persistently making side remarks, observations on and criticisms of testimony in the presence of the jury during the examination of witnesses, tending to prejudice the adverse party by getting before the jury incompetent matter, is reversible error. Case cited and approved: Prewett-Spurr Mfg. Co. v. Woodall, 115 Tenn., 605.
117 Tenn. 79Dixon v. State (1906)
CONSTITUTIONAL LAW. Statute void -where body thereof is broader than the title. The body of a statute is broader than its title, and the statute is unconstitutional and void, where, under the title, “An Act to regulate the laying out and working of public roads in counties having a population of between 25,100 and 25,200,” applying exclusively to Haywood county, the body of the Act contains provisions applying generally throughout the State without regard to the population of the counties. Acts cited and construed: 1903, ch. 573, sec. 6. Constitution cited and construed: Art.-2, sec. 17. Cases cited and approved: Kennedy v. Montgomery County, 98 Tenn.*, 178; State v. Bradt, 103 Tenn., 584; Saunders v. • Savage, 108 Tenn., 348: Case cited and distinguished: Powers v. McKenzie, 90 Tenn., 167.
117 Tenn. 82General Oil Co. v. Crain (1906)
1. CONSTITUTIONAL LAW. Provision as to suits against the State is not self-executing. The constitutional provision that suits may be brought against the State in such manner and in such courts as the legislature may by law direct is not self-executing. {Post, p. 89.) Constitution cited and construed: Art. 1, sec. 17. Cases cited and approved: Williams v. Register, Cooke, 218; State v. Sneed, 9 Bax., 475. ¡8. SAME. Suit against the State’s coal oil inspector to restrain inspection and collection of fees cannot be maintained, when. A bill in chancery against the State’s coal oil inspector to restrain him from inspecting certain coal oil in the State sold or intended for sale in certain other States, and to restrain ihim from collecting the fees for such inspection, is a suit against an officer of the State acting by its authority, with a view to reach its funds or property, in "the sense of the statute prohibiting such suits, and cannot, therefore, be maintained, and will be dismissed upon demurrer, though the bill claims that such oil is not subject to inspection, and if so, the statute authorizing the inspection is unconstitutional. Code cited and construed: Sec. 4507 (S.); sec. 3507 (M. & V.). Acts cited and construed: 1873, ell. 13; 1889, ch. 349. Constitution cited and construed: Art. 2, sec. 28. U. S. constitution cited: Art. 1, sec. 8. Cases cited and approved: Williams v. Register, Cooke, 218; State v. Sneed, 9 Bax., 472. Cases cited and distinguished: Fry v. Britton, 2 Heis., 606; Johnson v. Hacker, 8 Heis., 388; Burch v. Baxter, 12 Heis., 601; Publishing Co. v. Burch, 12 Heis., 607; State, ex rel., v. Gaines, 4 Lea, 352; Lynn y. Polk, 8 Lea, 121.
117 Tenn. 94Whim v. State (1906)
INDICTMENT. Infirmity in, cured by verdict, when. Case in judgment. The indictment charged the defendant with “maliciously” cutting and removing timber from the lands' of another. There was a verdict of guilty, after which a motion in arrest of judgment was interposed upon the ground that the indictment failed to charge that the removal of the timber was “without the consent of the owner.” Held: (1) the word “maliciously” imported that it was done without the. consent of the owner; (2) proof that the act was committed “without the consent of the owner” was essential to sustain the averment that it was done maliciously, and therefore the infirmity alleged was cured by the verdict. Acts cited and construed: 1897, ch. 106. Cases cited and approved: Cannon v. Phillips, 2 Sneed, 211; Memphis, etc., Gas Co. v. Williamson, 9 Heist., 314'; Fowlkes v. State, 14 Lea, 14. Cases'cited and distinguished: Younger v. State, 37 Ark., 116; State v. Smalls, 17 S. C., 62.
117 Tenn. 98Seymour v. Southern Railway Co. (1906)
1. VERDICTS. May fee directed by the court where the an-controverted evidence disentitles the plaintiff to a recovery, when. Where the right to prosecute a suit as against the bar of the statutes of limitations depends upon its being instituted within one year from the dismissal of a former suit, and the evidence is uncontroverted that the former suit was not dismissed at the time of the institution of such suit, it is proper for the court to direct a verdict in favor of the defendant. Code cited and construed: Sec. 4446 (S.); sec. 3449 (M. & V.); sec. 2755 (T. & S. and 1858). 3. RULE OF COURT. As to motions for new trials copied in transcript, when; omission supplied by suggestion of diminution, etc. Where a rule of court as to motions for new trials is properly made and entered upon the minutes of the court, and ordered to constitute a part of tie record in every case tried in the court, and requiring the clerk to copy it in the transcript of the record for the supreme court, without further orders, it is the duty of the clerk to obey the order, and upon his neglect or disobedience, it will be competent to supply the omission upon a suggestion of diminution, and the issuance and execution of a writ of certiorari. 3. NEW TRIAL'S. Motion for new trial is necessary to test the correctness of peremptory instructions to jury. A motion for a new trial and action thereon is necessary as a preliminary to test in the supreme court the correctness of the action of the trial judge in giving a peremptory instruction to the jury to return a verdict for the defendant. Case cited and approved: Railroad v. Johnson, 114 Tenn., 637-640.
117 Tenn. 103Cureton v. Cureton (1906)
1. HUSBAND AND WIFE. Chancery jurisdiction to grant separate maintenance to wife, without application for divorce, when. The chancery court has inherent power, independent of statute, to grant a wife a separate maintenance out of her husband’s estate, because of his abandonment of her, or for his failure to provide, or for other breaches of marital duty, whereby she is forced to withdraw from his home and custody, in cases where no application for divorce is maade. (Post, pp. 105-109.) Code cited and construed: Secs. 4220, 4221 (S.); secs. 3324, 3325 (M. & V.); secs. 2467, 2468 (T. & S. and 1858). Cases cited and approved: Nicely v. Nicely, 3 Head, 184; Swan v. Harrison, 2 Cold., 541-544; Corley v. Corley, 8 Baxt., 7, 10. 2. SAME. Same. Bill for separate maintenance “by a resident for less than two years is sufficient, though it shows ground for divorce, with divorce affidavit attached. Where a wife’s bill for separate maintenance showed that she had come from another State and had been a resident of this State less than two years, and disclaimed any purpose to sue for a divorce, but asserted a purpose only to claim a separate maintenance, it is immaterial that the affidavit required in divorce eases was attached to the bill, and that the bill stated facts which, if proved, would have authorized a decree for divorce for cruel and inhuman treatment and failure to provide, as authorized by statute. (Post, pp. 107-111.) Code cited and construed: Secs. 4202, 4203, 4220, 4221 (S.); secs. 3307, 3308, 3324, 3325 (M. & V.); secs. 2449, 2450, 2467, 2468 (T. & S. and 1858). Cases cited and approved: Corley v. Corley, 8 Baxt., 7, 10; Harrison v. Harrison, 20 Ala., 629. 3. SAME. Same. Same. Bill for separate maintenance is maintainable by wife recently returning' to this-State, when. The wife in a suit for separate maintenance will not be denied relief on the ground that she had been a resident of this State only fifteen or twenty days when the bill was filed, where she formerly resided here, and was married here, and removed with her husband to another State, and resided there about a year, when she was forced to return to this State, because of his abandonment, ill treatment, and failure to provide for her. (Post, pp. 107-111.) 4. SAME. Custody of young children may be awarded to the wife in her suit for separate maintenance, when; open for future disposition. In the wife’s suit for separate maintenance because of abandonment, and cruel and inhuman treatment, it is proper to award the custody of young children of the age of two and four years, respectively, to her, with proper provision for the husband to see them and to have them with him at stated times; and this order as to custody should be held within the control of the chancellor, for future orders conducive to the interest of the children. (Post, p. 111.) 5. SAME. Decree for separate maintenance of the wife requiring monthly payments should provide for discretionary continuance until when. A decree for the separate maintenance of the wife, requiring the husband to pay monthly sums therefor, should provide for the continuance of such payments within the discretion of the chancellor only until a reconciliation should be effected between the ihusband and wife, and until the husband should return to the discharge of his marital duties. (Post, pp. 109-113.) 6. SAME. Decree permitting one parent to remove beyond the State young children whose custody is awarded to the other is improper. Where a decree for separate maintenance awarded the custody of young children to the wife and. mother, a provision in the decree permitting the husband and father to take the children out of the State on executing a bond for their return was improper, because it authorized a removal of the children beyond the jurisdiction of the court. (Post, pp. 112-114.)
117 Tenn. 115Briscoe v. McMillan (1906)
1. TAXATION. Injunction against illegal assessment ol taxes is not prevented by statute prohibiting injunction against collection ol State taxes, when. The statute providing a remedy against the collection of illegal State taxes applies to the collection of such taxes only, and does not prevent the maintenance of a hill to declare the action of the State board of equalizers to be illegal and void, and to enjoin the certification of its action in the assessment of taxes. (Post, pp. 123, 126, 127.) Code cited and construed: Secs. 1063, 1064 (S.); secs. 930, 931 (M. & V.). Acts cited and construed: 1873, ch. 44'. S. SAKE. Same. Suit against officials to enjoin certification ol illegal and void assessment of taxes and their collection thereunder is not a suit against the State. A bill against officials to enjoin the certification of the illegal and void action of the State board of equalizers in the assessment of taxes, and to enjoin the collection of taxes by officials under such void action and prohibiting their collec- ■ tion of taxes upon valuations in excess of those made by the county board of equalizers, is not a suit against the State, but a suit against the officials. (Post, pp. 123, 127, 128.) Cases cited and approved: Railroad v. Bate, 12 Lea, 577; Taylor v. Railroad, 88 Fed., 351, 31 C. C. A., 537. 3, SAME. Remedy by bill in chancery against the void action ol the State board ol equalizers in the assessment of taxes. The void action of the State board of equalizers in equalizing the assessment of taxes is not final and conclusive, and does not prevent the maintenance of a hill in chancery to restrain the certification of such void action in the assessment of taxes and to prohibit their collection thereunder. (Post, pp. 127-129.) Acts cited and construed: 3903, ch. 258, sec. 38, suhsec. 10. Cases cited and approved: Bank v. Chattanooga, 8 Heisk., 814; Railroad v. Bate, 12 Lea, 577; Alexander v. Henderson, 105 Tenn., 431; Railroad v. Board (C. C.), 85 Fed., 302. 4. SAME. Same. State board of equalizers is a quasi court of record, and its action cannot be collaterally attacked except where void for fraud or want of jurisdiction. The State board of equalizers of the assessment of taxes constitutes a quasi court of record, and its findings in the exercise of the jurisdiction conferred upon it have the force and effect of judicial determinations, and cannot be collaterally attacked, except where void for fraud or the want of jurisdiction. (Post, pp. 129-134.) Acts cited and construed: 1903, ch. 258, sec. 38, subsec. 4, 5, 7, 8, 9, and 18. Case cited and approved: Robertson v. Winchester, 85 Tenn., 171. 5. SAME. Same. Same. But for irregularity in failure to hear evidence, the remedy is by certiorari in a court of law. The action of the State board of equalizers in the assessment of taxes, within its jurisdiction and without fraud, is not subject to collateral attack by bill in chancery to restrain the certification of the assessment and extension of taxes according to its action, for irregularities in the modes of procedure or for not hearing any evidence, but for such irregularity in procedure, the remedy is by certiorari in a court of law. (Post, pp. 133, 134.) Cases cited and approved: Railroad v. Bate, 12 Lea, 573; State, ex rel., v. Taxing District, 16 Lea, 240.
117 Tenn. 135Cowan v. Walker (1906)
1. WILLS. Right to contest, if disputed, presents a prelim- ' inary controversy, requiring a decision, with right of appeal, before the contest. It is well settled in this State that the right of a proposed contestant to impeach a will, if disputed, presents a controversy separate from and preliminary to the contest itself, in which evidence may he offered as to the issue joined, and that an appeal lies from a decision thereof, before a contest is heard. (Post, pp. 140, 141.) Cases cited and approved: Wynne v. Spiers, 7 Hum., 393; Keith v. Ragland, 1 Cold., 474; Gore v. Howard, 94 Tenn., 581; Crocker v. Balch, 104 Tenn., 6; Ligón v. Hawkes, 110 Tenn., 514; Bowers v. McGavock, 114 Tenn., 450. 2. SAME. Revoking will failing leaves former will in force. If a later substituted will revoking an earlier will fails for any reason, the earlier will, if itself valid, remains in full force and effect. (Post, pp. 141-143.) Cases cited and approved: Ford v. Ford, 9 Hum., 92; Stover v. Kendall, 1 Cold., 561. 3. SAME. Heir left nothing under an earlier and valid will cannot contest a subsequent will. The heir and next of kin of a testator, to whom nothing is left by an earlier and clearly valid will, is not entitled to contest the probate of a subsequent will, because he is without substantial interest. (Post, pp. 141, 143-148.) Cases cited and approved: Wynne v. Spiers, 7 Hum., 393; Gore v. Howard, 94' Tenn., 577. 4. SAME. Same. Evidence of valid earlier unprobated will is admissible to prevent contest of subsequent will by an heir left nothing under earlier will. Evidence of the existence of an earlier and clearly valid, but unprobated will, in which the proposed contestant is left no property, is competent and admissible upon an issue as to his right to contest a subsequent will, though he be an heir and next of kin of the testator. (Post, pp. 141, 143-152.) Cases cited and approved: Wyiine v. Spiers, 7 Hum., 393; Gore v. Howard, 94 Tenn., 577; McCutchen v. Hoggins, 109 Ala., 457; Barksdale v. Hopkins, 23 Ga., 332; Rudy v. Ulrich, 69 Pa., 177. Case cited, criticized, doubted, and distinguished; Miller v. Miller, 5 Heisk., 723. 5. SAME. Same. Same. No estoppel by probate of will to rely on. earlier will to prevent contest of the later probated will. The proponents of a probated will are not estopped to rely upon an earlier and valid, but unprobated will, as a bar to the right of an heir and next of kin left nothing therein to contest the probated will. (Post, pp. 148, 149.) 6. SAME. Proper judgment dismissing petition to contest a probated will rendered by supreme court upon reversal, without remandment, when. Upon reversal of a proceeding to set aside the probate of a will and to have will certified to the circuit court for contest upon an issue of deviscwit vel non, the supreme court will, without remandment, render the proper judgment dismissing the petition, where the circuit judge should have rendered such judgment. (Post, pp. 137, 152.)
117 Tenn. 153Leonhardt v. Small (1906)
1. BILLS AND NOTES. Bank purchasing sight drafts with hills of lading attached and receiving payment is not liable for breach of original contract of sale, when. A bank purchasing, for full value and in due course of trade, negotiable sight drafts drawn by the sellers of hay, in favor of themselves and against the buyers, to each of which is attached a bill of lading, is not a purchaser of the hay, and its presentation of the drafts for payment does not constitute a contract by the bank to sell the hay to the drawees, and the bank receiving payment of such drafts is not liable for the breach of the original contract of sale as to the quality of the hay. (Post, pp. 155-166.) Cases cited and approved: Hoffman v. Bank, 12 Wall., 181; Goetz v. Bank, 119 U. S., 551, 555, 556; Tolertson & Stetson Co. v. Bank (Iowa), 84 N. W., 930, 50 L. ft. A., 779, 780; Arpin v. Owens, 140 Mass., 144; Flournoy v. Bank, 78 Ga., 222; Nowak v. Stone Co., 78 HI., 307; Law v. Brinker, 6 Colo., 555; Hays v. Hathorn, 74 N. Y., 486; Shafer v. Bronenberg, 42 Ind., 89. Cases cited and distinguished: Ochs v. Price, 6 Heisk., 484, 488; Bank v. Bank, 91 H. S., 92, 98. Cases cited and disapproved: Landa v. Lattin, 19 Tex. Civ. App., 246; Finch v. Gregg, 126 N. C., 176; Haas v. Bank (Ala.), 39 South., 129, 1 L. It. A. (N. S.), 242; Searles v. Smith Grain Co. (Miss.), 32 South., 287. 2. SAME. Same. Purchase of bills of lading and in effect the goods embraced therein by a national bank is ultra vires, and no consequent obligation is enforceable against it. If the purchase by a national bank of drafts is in fact a purchase of the bills of lading attached, and in legal effect a purchase of the goods covered by the bills of lading, then the entire transaction is ultra vires, and no obligation arising therefrom can be enforced against the bank, and no recovery can be had by the drawees and original purchasers of the goods against the bank for the breach of the contract as to the quality of the goods. (Post, pp. 164, 165.) XT. S. Revised Statutes cited and construed: Sec. 5136. Cases cited and approved: Marble Co. v. Harvey, 92 Tenn., 115; Bank v. Kennedy, 167 U. S., 365; Bank v. Hawkins, 174 U. S„ 365. 3. SAME. Same. Bank’s restrictive, but surplusage, indorsement on all but three drafts to which bills of lading are attached • does not render the bank liable as to the bills attached to drafts not so indorsed. Where a bank., purchasing sight drafts drawn by the sellers of hay upon the buyers, indorses all the drafts but three with a statement that it is not responsible for the quantity, quality, or delivery of the goods covered by the bills of lading, such bank is not thereby rendered liable for inferiority in the contract quality of the goods covered by the three bills of lading, attached to drafts not so indorsed, because such indorsement is mere surplusage. (Post, pp. 1(56, 167.>
117 Tenn. 168Sale Creek Coal & Coke Co. v. Priddy (1906)
1. MINTING. Owner is not liable for tlie negligence of his statutory certificated mine foreman resulting in injuries to his mining employee, when. Under a statute (Acts 1903, eh. 237), regulating the operation of mines, and making the employment of a certificated mine foreman compulsory upon the mine owner, with penalties for failure, and depriving such owner of control over such foreman, and conferring upon such foreman control of the mine with reference to his duties specified in the statute, and securing the faithful discharge of such duties by the imposition of penalties upon such foreman, there is no ground on which to place the liability of the owner for the negligence of the foreman in the performance of his duties resulting in injuries to a mining employee, because the relation of master and servant does not exist between the mine owner and his certificated foreman with reference to his duties under the statute. Acts cited and construed: 1903, ch. 237, secs. 12, 16, and 20; 1881, ch. 170. Cases cited and approved: Transportation Co. v. La Campagnie, etc., 182 U. S., 406; De Forest v. Wright, 2 Mich., 368; Caruth-ers v. Sydebotham, 4 Maulé & S., 77, 85; Lucey v. Ingram, 6 Mees & W., 302, 315. Case cited and distinguished: Smith v. Coal & Iron Co., 115 Tenn., 543, decided under Acts 1881, ch. 170. 3. SAME. Same. Peremptory instructions for verdict in favor of defendant should be given in such case; dismissal of suit for failure. Where, in the suit of a mining employee against the mine owner, the proof shows that plaintiff sustained injuries as the result of the negligence of the certificated mine foreman, in failing to perform Ms statutory duties, tie trial judge siould, upon motion of tie defendant, peremptorily instruct tie jury to return a verdict for tie defendant, and for iis refusal to do so, tie supreme court will reverse tie judgment in favor of tie plaintiff, and dismiss tie suit.
117 Tenn. 180H. B. Bowling Coal Co. v. Ruffner (1906)
WATERS AND WATERCOURSES. Coal mine operator is liable for damages resulting from pumping acidulated subterranean water from bis mine into a stream and rendering it unfit for its accustomed use. Where a coal mine operator pumps acidulated, offensive, and corrosive water from his mine, conveys it by means of a pipe seventy-five feet, and empties it into a tributary drain, from which the water flows naturally into a stream running through the farm of another below, rendering the water unfit for its accustomed use for domestic purposes and for use in the boiler of a mill, such mine operator is liable for the damages caused the said landowner by pumping and forcing such water into the said stream, although such disposal' of the water is necessary to the operation of the mine, and is according to the usual and only known way of handling such subterranean waters. Cases cited and approved: Cox v. Howell, 108 Tenn., 133; and many cases in other States and countries cited and reviewed in the opinion, on pages 186-202.
117 Tenn. 203Hicks v. Northwestern Aid Ass'n (1906)
1. LIFE INSURANCE, Increased rates in assessment company must be in accordance with, the terms of policy, when. Where a life policy in an assessment company provides that while the rate therein specified as the maximum is not a fixed premium, it is expressed as a belief that such rate will never be exceeded, and that, if any unexpected emergency should arise whereby the mortuary and reserve funds should become exhausted, then, and in such case only, it is agreed that the policy holder shall be liable for such further assessment as may be necessary to meet such emergency and maintain the solvency of the company, it is held that the company has no power under the contract, nor under the law, to increase the said maximum rate, except in case of the emergency specified and in accordance with the terms of the contract. (Post, pp. 210-212, 214-217.) 2. SAME. Same. Policy is not forfeited by nonpayment of illegally increased premiums, but is collectible, less credits for unpaid lawful premiums. Where the premium rates on a life policy in an assessment company are illegally increased, the insured is not bound' to-pay them to prevent a forfeiture, and on the falling in of the policy by death, it was matured into a claim against the company for its full face value, less the amount of the premiums unpaid at the lawful or contract rate. (Post, p. 212.) Case cited and approved: Association v. Kentner, 188 Ill., 431. 3. SAME. Burden on company to show an unexpected emergency authorizing an increase of premium rates, when. Where an assessment life insurance company increased the premium rates on a life policy providing that the rates should not be increased except upon tbe exhaustion of tbe mortuary and reserve funds, an unexpected emergency, tbe burden of proof rests upon tbe company to show tbe happening of tbe unexpected emergency. (Post, pp. 210, 211, 212-214.) Case cited and approved: United States v. Railroad, 191 U. S., 84. Case cited and distinguished: Knights of Pythias v. Knights (Ind.), 20 N. E., 479, 3 L. R. A., 409. 4. SAME. Tender according to contract rate is unnecessary, where an illegally increased rate is insisted on. Where an assessment life insurance company wholly changed its plan of business, and illegally increased its premium rates on existing policies, in accordance with the new plan, and insisted on the payment of the illegally increased rates by an old member, who was willing to pay the contract rate, a tender of the premiums according to such contract rate was unnecessary as a useless and vain thing. (Post, pp. 217-221.) Cases cited and approved: G-uetzkow v. Insurance Co., 105 Wis., 4'48; Shaw v. Insurance Co., 69 N. Y., 286; Hayner v. Insurance Co., 69 N. Y., 435; Dennison v. Association, 69 N. Y. S., 291, 59 App. Div., 294; Insurance Co. v. Insurance Co., 86 Pa., 236; Insurance Co. v. Society, 181 Pa., 448; Benjamin v. Association (Cal.), 79 Pac., 517; Heinlein v. Insurance Co. (Mich.), 59 N. W., 615, 25 L. R. A., 627, 45 Am. St. Rep., 409; Legion of Honor v. Orcutt, 119 Fed., 682, 56 C. C. A., 294; Wagoner v. Knights and Ladies of Honor (Mich.), 87 N. W., 903; Lavin v. Lodge (Mo. App.), 86 S. W„ 600. 5. SAME. Tender is unnecessary where an assessment is not made, when. Where an assessment of premium is not made by an assessment life insurance company, a collection of premiums cannot be made, and a tender thereof is unnecessary. (Post, p. 221.) Oases cited and approved: Stewart v. Grand Lodge, 100 Tenn., 267; Insurance Co. v. Hyde, 101 Tenn., 396. 6. SAME. Company cannot change contract rate of premium, without consent of insured, to facilitate reorganization, when. Where an assessment life insurance company issued a policy providing that the premium rates should not be increased except upon the exhaustion of the mortuary and reserve funds, an unexpected emergency, such company has no right to change the contract with the insured without hiá consent, merely to facilitate the reorganization of its business upon a more satisfactory basis. {Post, pp. 210, 221, 222.) ' Cases cited and approved: Gaut v. Legion of Honor, 107 Tenn., 603; Hadly v. Queen City Camp, etc., 1 Tenn. Chy. App., 413, and cases cited in the opinion, on pages 221, 222. 7. SAME. Recovery for full amount of policy payable out of one assessment on members in the absence of evidence as to what assessment would produce. Where a life policy in an assessment company for a specified sum entitles the beneficiary to be paid out of one assessment levied on the members and in an action thereon there was no evidence showing what amount an assessment would produce, the plaintiff, otherwise entitled to recover, is entitled to recover a judgment for the full amount of the policy, less premiums unpaid at contract rate, with interest from the filing of the bill. {Post, pp. 222, 223.) Case cited and approved: Association v. Kentner, 188 Ill., 431. Cases cited as to diversity of opinion: Strauss v. Association, (N. C.), 39 S^ E., 55, 54 L. R. A., 605, 83 Am. St., Rep.* 699; Insurance Co. v. Garmany, '74 Ga., 51; Barney v. Dudley, 4'2 Kan., 212; Spear v. Insurance Co., 36 Hun, 322; Insurance Co. v. Robinson (C. C.), 54 Fed., 580; Insurance Co. v. Week, 9 Ill. App., 358.
117 Tenn. 224Acker v. Mayor of Knoxville (1906)
PROM KNOX. Appeal from the Circuit Court of Knox County.— Joseph W. Sneed, Judge.
117 Tenn. 235Rivers v. State (1906)
PROM HAMILTON. Appeal in error from tbe Criminal Court of Hamilton County. — S. D. McReynolds, Judge.
117 Tenn. 244Marler v. Wear (1906)
1. JURY. No right to trial hy, in mandamus cases at common law. At common law no jury was impaneled in mandamus cases, and the constitutional provision in this State declaring that the right to trial hy jury shall remain inviolate protects only the right of trial hy jury as it existed at common law. Cases- cited and approved: Castle v. Lawlor, 47 Conn., 340; Chu-masero v. Potts, 2 Mont, 242; State v. Suwannee County Com’rs, 21 Fla., 19; Dutten v. Village of Hanover,, 42 Ohio St, 215; People v. Judge, 9 Cal., 19. 2. MANDAMUS. Right to trial by jury in, within discretion of trial judge. Under the Code (sec. 5336 S.) providing that if the answer to an application for mandamus denies any material fact stated in the petition, the court may determine the issues on evidence or cause the issues to- he submitted to a jury; whether the trial shall he hy jury is within the discretion of the trial judge. Code cited and construed: Sec. 5336 (S.); 4315 (M. & V.); 3572 (1858).
117 Tenn. 247Cowan v. State (1906)
SUPREME COURT. Will correct erroneous or imperfect judgment, when. Where a verdict in a criminal case is in proper form and the circuit court has rendered an erroneous or imperfect judgment, the supreme court on appeal hy defendant will make the proper correction and render such judgment as the circuit court should have rendered. Cases cited and approved: McCamphell v. State, 116 Tenn., 98; Kelly v. State, 66 Tenn., 323; Sword v. State, 24 Tenn., 101; Johnson v. Chattanooga, 97 Tenn., 247; Cronan v. State, 113 Tenn., 539; Griffin v. State, 109 Tenn., 17; Nighbert v. Hornsby, 100 Tenn., 82. Cases cited and distinguished: Mayfield v. State, 101 Tenn., 673; McDougal v. State, 64 Tenn., 660.
117 Tenn. 250McClung v. Quincy Carriage & Wagon Co. (1906)
MORTGAGES. After-acquired property covered by, when, A corporation, after leasing certain premises, but before its buildings to be used as a carriage and wagon factory bad been completed, executed a deed of trust embracing the leasehold “and all buildings and improvements” pn the lot “which will be put thereon” by the mortgagor during the term of the lease, together with all other tools not specifically named used in its factory, and all the factory buildings and machinery. It was insisted by the receiver of said corporation which ¡had become insolvent that the operation of the mortgage must be confined to the machinery in use at the date of the execution, of the mortgage, and did not extend to certain machinery purchased and placed on the leased premises with the understanding and purpose that it should become integral parts and necessary adjuncts of the manufacturing plant. Held: That the mortgage covered said after-acquired machinery and a boiler firmly set in the ground and used as a part of the manufacturing plant.
117 Tenn. 257C. N. O. & T. P. R. R. v. Holland (1906)
RAILROADS. Statutes for prevention of accidents on, are not applicable to employees. Statutes providing precautions to be taken by employees in charge of trains to prevent accidents to persons on railroad tracks - are for the benefit of the general public only, so that where an employee of the company is injured on the tracks, its liability depends on the determination of the questions of negligence and contributory negligence under the rules of the common law. Cases cited and approved: Railroad v. Burke, 6 Cold., 45; Railroad v. Robertson, 9 Heisk., 276; Railroad v. Rush, 15 Lea, 145; Railroad v. Hicks, 89 Tenn., 301.
117 Tenn. 263Ingersoll v. Coal Creek Coal Co. (1906)
I. ATTORNEY AND CLIENT. One defendant participating in codefendant’s compromise of plaintiff’s claim is equally liable for compensation of plaintiff’s attorneys, when. Where -individuals sued jointly with a corporation as the chief defendant, after notice of the plaintiff’s employment of certain attorneys to prosecute the suit, participated in, and really brought about, a compromise, settlement, and payment of plaintiff’s claim by the defendant corporation, without the consent of said attorneys, such individuals are individually and personally liable to the same extent as the corporation for the compensation of such attorneys. {Post, pp. 302, 303.) 2. SAME. Same. Defendants sought to be held liable for compensation of plaintiff’s attorneys may rely upon invalidity of contract of employment, when. In a suit instituted by the attorneys of a plaintiff seeking to recover from the defendants their compensation on the ground that said defendants compromised with such plaintiff directly, without their consent and after notice of their employment, such defendants are not precluded from setting up as a defense that the contracts of employment of said attorneys were obtained in such a manner and under such circumstances as renders said contracts invalid and unenforceable. {Post, p. 303. 3. SAME. Same. Same. Solicitation of suit debars the attorney of right to compensation from the defendant compromising with his client without his consent, when. Where attorneys, through the personal solicitation of their special partner or representative, procure a contract of employment to prosecute a suit in the manner and under the circumstances stated in the opinion of the court, they are guilty of such acts of impropriety, so inconsistent with the character of the profession and incompatible with the faithful discharge of its duties, that a court will not entertain a suit by such attorneys to recover compensation for their services from the defendant who had compromised the suit with their client without their consent after notice of their employment, though no infidelity to the interests of their client was imputed to said attorneys. (Post, pi% 303-314.) Code cited and construed: Secs. 5781, 5783 (S.); secs. 4745, 4747 (M. & V.); secs. 3970, 3972 (T. & S. and 1858). Acts cited and construed: 1817, ch. 51, sec. 1; 1821, ch. 66, sec. 3. Cases cited and approved: Bank v. Hornberger, 4 Cold., 531; People v. MacCabe (Colo. Sup.), 32 Pac., 280, 19 L. R. A., 231; 13 Am. St. Rep., 270; People v. Brown (Colo. Sup.), 30 Pac., 338; People v. Goodrich, 79 Ill., 148.. 4. SAME. Same. Same. Same. The courts and the public are concerned in the conduct of attorneys at law. In the case stated in the last headnote above, it is not the client alone who is concerned, hut the court and the public, and the issue is not whether the client has been injured, but whether the conduct of the attorney has been contrary to the character of the profession and opposed to a sound public policy and to a proper and decorous administration of the law. The legal profession must not be lowered to that of a mere business in which fleetness of foot or the celerity of the automobile determines who shall be employed. (Post, pp. 311, 313.)
117 Tenn. 315Kobbe v. Harriman Land Co. (1906)
1. DEEDS OF CONVEYANCE OF LAND. Of a married •woman executed by an attorney in fact may be validated by registration for twenty years,when. A married woman’s deed of conveyance of land executed by an attorney in fact and registered for more than twenty years in the county where the land- is situated is- valid and admissible in evidence, though a married woman cannot convey her lands by an attorney in fact. Code cited and construed: Secs. 3761, 3762, 3764, 3765 (S.);'secs. 2898, 2899, 2901, 2902 (M. & V.); sees. 2084, 2085, 2086, 2086b (T. & S.); secs. 2084, 2085 (1858). Acts cited and construed: 1839-40, ch. 26, see. 9; 1859-60, ch. 91, secs. 1 and 2. Cases cited and approved: Perry v. Calhoun, 8 Humph., 556; Matthewson v. Spencer, 3 Sneed, 513; Mathewson v. Spencer, 4 Sneed, 384; Prater v. Hoover, 1 Cold., 546; Mount v. Kesterson, 6 Cold., 4'52; Moseby v. Partee, 5 Heisk., 26, 30-36; Murdock v. Leath, 10 Heisk., 166, 174, 175; McCallum v. Petigrew, 10 Heisk., 397; Anderson v. Bewley, 11 Heisk., 31; Murdock v. Railroad, 7 Baxt., 8; Stroud v. McDaniel, 12 Lea, 617, 619, 620. 2. SAME. Defective or void probate cured by registration for twenty years, when. A deed of conveyance of land, registered for more than twenty years, is valid and admissible in evidence, though the probate taken before a justice of the peace of another State is unauthorized, null, and void. Code cited and construed: Secs. 3761, 3763 (S.); secs. 2898, 2899 (M. & V.); secs. 2084, 2085 (T. & S. and 1858). Acts eited and construed: 1839-40, ch. 26, sec. 9. Cases cited and approved: Bledsoe v. Wiley, 7 Humpb., 507; Mattbewson v. Spencer, 3 Sneed, 613; Mattbewson v. Spencer, 4 Sneed, 384; Green v. Goodall, 1 Cold., 405; Anderson v. Bew-ley, 11 Heisk., 31; Stephenson v. Walker, 8 Baxt., 289;- Hanks v. Folsom, 11 Lea, 561; Strond v. McDaniel, 12 Lea, 617, 619, 620; Woods y. Bonner, 89 Tenn., 411.
117 Tenn. 327Southern Railway Co. v. Hamblen County (1906)
1. TAX LEVIES BY COUNTY COURT. Special tax levied by county court must be so denominated; phrase “pauper tax” is insufficient, when. A special tax levied by the quarterly county court for the building or the repairing of the county poorhouse must be so denominated, and such tax cannot be validly levied under a general phrase as “pauper tax.” Case cited and approved: Railroad v. Hamblen Co., 115 Tenn., 532. 3. SAME. Special tax for support of the poor is not authorized, for it is a general county purpose. The quarterly county court’s levy of a special tax denominated “pauper tax” is not authorized by law, and is void; because there is no statute authorizing the levy of a special tax for the support of the poor, which is a general county purpose, and for which appropriations may be made out of the general county funds. Code cited and construed: Secs. 2685, 2689, 6045, subsec. 3 (S.); secs. 2108, 2112, 4987, subsec. 3 (M. & V.); secs. 1601, 1605, 4215, subsec. 3 (T. & S. and 1858). 3. SAME. Special tax levy for workhouse changed by subsequent amendment or new levy for courthouse improvements only. The quarterly county court’s levy of a “special tax for maintenance of county workhouse, vault and water-closet improvements,” at a certain rate, subsequently “amended” so as to ■ strike out the words “for maintenance of county workhouse,” left no attempt to levy or collect a special tax for the maintenance of ’the workhouse, whether the subsequent action was in fact an amendment or a new levy for the courthouse improvements named. d. SAME. Special tax levy for vault and water-closet improvements for courthouse may be made under statute. The quarterly county court may levy a special tax for vault and ■ water-closet improvements for the courthouse under a statute (Shannon’s Code, sec. 503) authorizing the levy of a special tax for the erection and maintenance of a courthouse, and keeping the same in repair. Code cited and construed: Sec. 503 (S.); sec. 468 (M. & V.); sec. 419 (T. & S. and 1858). 5. SAME. Special tax levy for current year may be modified by amendment or new levy made at succeeding January term, and the tax collected for the year of the original levy. The quarterly county court’s levy of a special tax made at its April term for the current year, may be modified by a subsequent levy, or amendment of levy, made at the succeeding January term, by striking out the void or voidable part of the previous levy; and the levy so made legal may be enforced by the collection of the special tax for the year of the original levy. Code cited and construed: Secs. 648, 649, 6013 (S'); secs. 565, 566, 4968 (M. & V.); sees. 488, 489, 4193 (T. & S. and 1858). Case cited and approved: McLean v. State, 8 Heisk., 250.
117 Tenn. 334State ex rel. Lyle v. Willett (1906)
1. ELECTION'S. Resident inmates and employees of a Soldiers’ Home over which the United States has exclusive jurisdiction are not qualified voters in elections in this State where said Home is located. The resident inmates and employees of the Soldiers’ Home near Johnson City, in Washington county, Tennessee, as a branch of the “National Asylum for Disabled Volunteer Soldiers” for disabled volunteers of the United States army, not being residents of the State of Tennessee, but residing within the premises of said Home, are not legal voters at elections in the State, because the United States has exclusive jurisdiction over the land on which such branch Home was erected. (Post, pp. 338-350.) See fifth headnote. v Constitution cited and construed: Art. 4, sec. 1 (Tenn.); Art. 1, sec. 8, subsec. 17 (U. S.). Statutes cited and construed: 1901, ch. 98 (Tenn.); 1866, ch. 21, 14 Stat., 10 (U. S.). Cases cited and approved: Railroad v. Lowe, 114 U. S., 525; Sinks v. Reese, 19 Ohio St., 306; Foley v. Shriver, 81 Va., 574; McMahon v. Polk, 10 S. D., 296. 2. SAME. Same. Reservation of right of inmates of Soldiers’ Home to vote in elections in this State, made in act ceding exclusive jurisdiction thereover to the United States, is. unconstitutional, invalid, and noneffective. The reservation of the right of the inmates of the Soldiers’ Home to vote in elections in this State, made in the Tennessee statute ceding to the United States exclusive jurisdiction over the land on which said home was erected, is unconstitutional, in- - valid, and noneffective. {Post, pp. 342-350.) Acts cited and construed: 1901, ch. 98. Constitution cited and construed: Art. 4, see. 1. Cases cited and approved: Railroad v. Lowe, 114 U. S., 525; Foley v. Shriver, 81 Ya., 574; McMahon v. Polk, 10 S. D., 296; Cory v. Spencer (Kan. Sup.), 73 Pac., 920, 63 L. R. A., 275; Powell v. Spackman (Idaho), 65 Pac., 503, 54 L. R. A., 378; Wolcott v. Holcomb, 97 Mich., 361; Re Barry, 164 N. Y., 18. 3. SAME. Same. Same. Invalidity of clause reserving right to vote does not render whole act unconstitutional, when. The invalidity and unconstitutionality of the clause in said act reserving the right to vote in the inmates of such Home, as stated in the last foregoing headnote, does not render the whole act void and unconstitutional, for the legislature would have doubtless enacted the statute without the clause in question. {Post, pp. 349, 350.) Cases cited and distinguished: Jones v. Memphis, 101 Tenn., 189; Weaver v. Davidson County, 104 Tenn., 317. 4. SAME. Same. Exclusive jurisdiction of United States is not affected by the conveyance of land purchased by it to a corporation owned and controlled by it, when. The exclusive jurisdiction of the United States over the land upon which such Soldiers’ Home was erected is not affected by the fact that the land was conveyed to the National Home, a corporation, and not- directly to the United States, because such Home is owned and managed by the United States, and the land was in fact purchased by the United States. {Post, pp. 346, ?47.) Cases cited and approved: Railroad v. Lowe,114 U. S., 525; State of Ohio v. Thomas, 173 U. S., 276, 281; Sinks v. Reese, 19 Ohio St., 306. Cases cited and disapproved: In re Kelly (C. C.), 71 Fed-, 545; In re O’Connor, 37 Wis., 379. 5. SAME. Same. Inmates and employees working and eating in such Soldiers’ Home, but residing with their families on the outside, may vote, if otherwise qualified. The inmates and employees of said Soldiers’ Home, who work there and eat there regularly and irregularly, hut have homes and families on the outside, where they spend their evenings and nights, and irregularly take their meals, being residents of the State, and otherwise qualified voters, are entitled to vote. (Post, pp. 348, 349, 351.) See first headnote. 6. SAME. Mandamus will not lie to compel erasure from registration books where the names improperly registered do not appear, when. The peremptory writ of mandamus will not be awarded to compel election officers to erase from the registration books the names of persons designated as residents or members of the Soldiers’ Home, where it appears that some of these (as shown in the fifth headnote) might be properly registered, but neither their names, nor the names of those improperly registered, appear in the record. (Post, pp. 339, 350, 351.) Cases cited and approved: Webster v. Newell, 66 Mich., 503; Clayton v. McWilliams, 4’9 Miss., 311. 7. SAME. Same. Mandamus affecting parties not before the court will not be awarded, when. Where the persons, whose right to register as voters was involved, are not before the court, by appearance or service of notice upon them, the peremptory writ of mandamus will not be awarded to compel the erasure of their names from the registration books. (Post, pp.'350, 351.) Code cited and construed: Secs. 5335, 5337 (S.); secs. 4314, 4316 (M. & V.); secs. 3571, 3573 (T. & S. and 1858). 8. SAME. Same. Mandamus will not lie to compel erasure of names of disqualified voters from registration books, when. Tbe peremptory writ of mandamus will not be awarded, after tbe expiration of tbe five days allowed for tbe correction of clerical errors, to compel tbe election registrars to erase from tbe registration books the names of persons alleged to be disqualified as voters, because they have no power to revise the registration after tbe expiration of such time. (Post, pp. 351-362.) Code cited and construed: Secs. 1189-1219 (S.). Code Supplement (1904) cited: Secs. 1136-1377, p. 218. Cases cited and approved: Turnpike Co. v. Marshall, 2 Baxt., 104; State v. Miller, 1 Lea, 596, 606, 607Í 9. SAME. Certificate of registration may be challenged before judges of election where procured by fraud or perjury; fraud defined. The certificate of registration may be successfully challenged before tbe judges of election where it is shown by proof to their satisfaction to have been obtained by fraud or perjury, or where the voter has removed, and such certificate is obtained by fraud in fact or in law where the holder thereof w'as not a qualified voter. (Post, pp. 361, 362.) Code cited and construed: Sec. 1204 (S.).
117 Tenn. 363Powers v. State (1906)
1. MURDER, IN' THE FIRST DEGREE. Evidence held insufficient to warrant a conviction. Evidence held insufficient to warrant a conviction of murder in the first degree. (.Post, pp. S66-368.) 3.CHARGE OF COURT. Should not state facts as proven, hut leave them to the jury in a criminal case. The trial judge in a criminal case should not state to the jury any fact as one proven, hut should leave all of the facts to the jury. (Post, p. 369.) 3. SAME. Same. But charge assuming uncontroverted facts as proven is not reversible error, where not prejudicial. But where the facts stated in the charge as proven were uncon-troverted, and the accused was not prejudiced by the statement made, the error is not a reversible one. (Post, p. 369.) 4. SAME. Objection to charge formally made without assignment of reason or citation of authority will not be considered, when. Objection to an instruction in the charge of the court not pressed upon appeal, but made merely pro forma, without the assignment of any ground or the citation of any authority in support thereof, will not be considered by the supreme court. (Post, p. 369.) 5. SAME. Too narrow as to character of defendant put in evidence is not reversible error where there was no special re-guest for further specific instructions. The character of the accused, when put in evidence by himself, should be considered as bearing upon every issue in the case in determining whether there was a reasonable doubt of his guilt, and a charge that his character might be looked to in judging of his purpose and intention at the time of the killing is ohjeetionahle as being too narrow, hut is not reversible error where there was no special request for further specific instructions. {Post, pp. 369-371.) Cases cited and approved: Roman v. State, 1 Shan. Tenn. Cas., 470, 472; Phelan v. State, 114 Tenn., 483, 607. 6. SAME. Same. Meagerness as to dying declarations is not reversible error in the absence of a special request formulating the instructions desired. The meagerness of an instruction that dying declarations made by the deceased were entitled to the same weight and sanctity as evidence testified to under oath, given in answer to a general request to charge upon the subject of dying declarations is not ground for reversal, in the absence of a special request formulating the fuller instruction desired. (Post, pp. 371-372.) 7. SAME. Failure to charge as to offenses included in indictment for murder where there is no evidence applicable to them is not reversible error. The court’s failure to charge upon the law applicable to involuntary manslaughter, assault and battery, and simple assault, included in the indictment for murder in the first degree,, is not prejudicial to the accused, and, therefore, not reversible error, where 'there was no evidence applicable to such offenses. (Post, p. 372.) Cases cited and approved: Good v. State, 1 Lea, 293; State v. Hargrove, 13 Lea, 178, 184; State v. Parker, 13 Lea, 221; Tar-vers v. State, 90 Tenn., 485. 8. CRIMINAL LAW. Character of the accused is that at and before the offense, and not a reputation subsequently-acquired. The reputation of the accused upon the subject of quietness and good citizenship available for or against him in a criminal case, when he has put his character in issue, is that which he bore at and before the commission of the act for which he is put on trial, not a reputation subsequently acquired or created for or against Mm. {Post, pp. 372-374.) Cases cited and approved: Lea v. State, 94' Tenn., 495, 497; Moore v. State, 96 Tenn., 209, 218; State v. Johnson, 60 N. C., 151, 152. 9. SAME Same. Case in judgment. It is error to permit a character witness to state that after the homicide he heard reports that the accused had run his stepfather away from home with a knife, had threatened to kill another school-teacher besides the deceased, and had lain in wait for him with a shotgun. {Post, pp. 372-374.) 10. SAME. Same. Accused cannot be impeached as a witness by subsequently reputed specific acts of viciousness, when. Where the accused testifies in his own behalf and puts his character in issue, evidence of reports of the commission of specific acts of viciousness coming to the impeaching witness after the homicide is inadmissible to impeach the accused as a witness. {Post, pp. 374-380.) Cases cited and approved: Gilliam v. State, 1 Head, 38; State v. Beckner (Mo.), 91 S. W., 892, .3 L. R. A. (N. S.), 535, and citations therein. 11. SAME. Accused cannot be impeached as a witness by testimony of other witnesses as to specific acts, when. The character of the accused as a witness in his own behalf can- ■ not be impeached by proof of special instances of other crimes attempted or committed, because special matters cannot be proved against a witness by third persons, but such inquiry must be confined to matters of general reputation. {Post, p. 379.) Cases cited and approved: Ford v. Ford, 7 Humph., 92, 100-102; Gilliam v. State, 1 Head, 39; Merriman v. State, 3 Lea, 394; Zanone v. State, 97 Tenn., 101, 115. 12. SAME. But accused may be impeached as a witness by questions asked him as to specific acts, but the inquiry is closed with his denial. But the accused as a witness in his own behalf may be questioned on cross-examination, like any other witness, concerning independent matters of a kind to impeach his character for truthfulness or general moral character, or for the purpose of testi-ing his own trustworthiness, but the inquiry must pause with his denial. (Post, p. 379.) Cases cited and approved: Zanone v. State, 97 Tenn., 101, 115; Ryan v. State, 97 Tenn., 206, 213.
117 Tenn. 381Maxey v. Powers (1906)
1. CONSTITUTIONAL LAW. Statute redistricting a county is not invalid because the districts are laid off in inconvenient sizes or shapes, and are disproportionate, when. The statute (Acts 1903, ch. 424), abolishing certain districts of Knox county and tedistricting the„ county, is constitutional and valid, though the districts as laid off in the statute are disproportionate in area, wealth, and population and of shape inconvenient to their inhabitants, since the power to create the districts is a political power vested in the legislative department to be exercised in its discretion, and when it has exercised this discretion its action is final and conclusive, and not subject to review by the courts. (Post, pp. 386, 389-398.) Acts cited and construed: 1903, ch. 424. Constitution cited and construed: Art. 6, sec. 15; art. 2, secs. 1 and 2. Cases cited and approved: Stewart v. Roberts, 1 Yerg., 389; Maury County v. Lewis County, 1 Swan, 240; Railroad v. Davidson County, 1 Sneed, 687; Winston v. Railroad, 1 Baxt., 73; Lipscomb v. Dean, 1 Lea, 546; Burnett v. Maloney, 97 Tenn., 697; Redistricting Cases, 111 Tenn., 241, 254; State v. Akin, 112 Tenn., 603; State v. Hamby, 114 Tenn., 361. 2. SAME. Special statute redistricting a certain county is not invalid as arbitrary and vicious class legislation. The statute (Acts 1903, ch. 424), abolishing certain districts of Knox county and redistricting the county, though a special law, is not obnoxious to the constitution, as arbitrary and vicious class legislation. (Post, pp. 389, 398, 399.) Acts cited and construed: 1903, eh. 424. Constitution cited and construed: Art. 11, sec. 8. Cases cited and approved: Redistricting Cases, 111 Tenn., 241, 254; State v. Akin, 112 Tenn., 603; State v. Hamby, 114 Tenn., 361. 3. SAME. Election of justices of tlie peace at regular election before statute creating new districts takes effect on the first day of September, 1906. Where the statute (Acts 1903, ch. 424), abolishing certain districts of Knox county and redistricting the county, provided that it should take effect on the first day of September, 1906, at which time the terms of the then incumbents of the offices of the justices of the peace in the abolished districts expired, it was proper to hold elections to fill the offices of the justices of the peace in the newly created districts on the first Thursday in August, 1906, as provided by the constitution and statutes. (Post, pp. 385, 399 404.) Code cited and construed: Secs. 424-427, 1154, 1155 (S.); secs. 389-392, 1020, 1021 (M. & V.); secs. 825f, 825g (T. & S.); secs. 336-339 (T. & S. and 1858). Acts cited and construed: 1903, ch. 424. Constitution cited and construed: Art. 6, sec. 15; art. 7, sec. 5. 4. STATUTORY CONSTRUCTION. Statutes to be construed so as to make them effective, if possible; presumption against unconstitutionality. Statutes must be construed, if possible, so as to make them sensible, and to effect and carry out the purposes for which they are enacted; and it is not to be presumed that the legislature will pass a defective or insensible act or one in conflict with the constitution. (Post, p. 403.) Cases cited and approved: Rose v. Wortham, 95 Tenn., 508; Wise v. Morgan, 101 Tenn., 282. 5. SAME. Same. Intent will prevail over strict letter or literal sense; general terms limited; narrow terms expanded, when. The legislative intent will prevail over the strict letter or literal sense of the language used, and, in order to carry into effect this intent, general terms will be limited, and those that are narrow expanded. (Post, pp. 403, 404.) Cases cited and approved: Rose v. Wortham, 95 Tenn., K95; Lewis v. Mynatt, 105 Tenn., 512-514.
117 Tenn. 405Edge v. State (1906)
PROM KNOX. Appeal in error from the Criminal Court of Knox County. — Joseph W. Sneed, Judge.
117 Tenn. 415La Follette Coal, Iron & Railway Co. v. Minton (1906)
1. VERDICTS. For personal injuries sustained by the evidence of defendant’s negligence. Evidence stated, examined, and held sufficient to sustain a verdict in favor of plaintiff for personal injuries caused by defendant’s negligence in failing to protect employees from falling ore in the mine shaft. (Post, pp. 417-423.) Case cited and approved: Iron Co. v. Hamilton, 107 Tenn., 705. 2. CONTRIBUTORY NEGLIGENCE. Question to be submitted to the jury. The question of plaintiff’s contributory negligence as affecting his right of recovery for personal injuries is proper to be submitted to the determination of the jury under the evidence. (Post, p. 423.) 3. EMPLOYER AND EMPLOYEE. Question of assumption of risk by employee is properly submitted to the jury. The question of the plaintiff’s assumption of the risk incident to his employment from his familiarity with the premises and his experience in the business is a matter for the jury and is proper to be submitted to its determination under the evidence. (Post, p. 423.) 4. STATUTES OF LIMITATIONS. New action within one year after dismissal of first suit for failure to file declaration, where the first suit was brought in time, when. The dismissal of the plaintiff’s suit on account of his failure to file a declaration does not conclude his right- of action, and hence a second suit, brought within one year after such dismissal of the first suit, which was brought in proper time, is not barred by the statutes of limitations. (Post, pp. 423-428.) Code referred to and construed: Sec. 4446 (S.); sec. 3449 (M. & V.); sec. 2755 (T. & S. and 1858). Cases cited and approved: Cole v. Nashville, 5 Cold., 639; Railroad v. Pillow, 9 Heislt., 248; Iron Co. v. Broyles, 95 Tenn., 612; Hooper v. Railroad, 106 Tenn., 31; Hooper, Admr., v. Railroad, 107 Tenn., 716; Lindsay v. Allen, 112 Tenn., 653; Homer v. Brown, 16 How. (U. S.), 354; Insurance Co. v. Broughton, 109 U. S., 121; Gardner v. Railroad, 150 U. S„ 349. Cases cited and distinguished: Anderson v. Bedford, 4 Cold., 464; Sweet v. Light Co., 97 Tenn., 252; Coal Co. v. Daniel, 100 Tenn., 65. 5. WITNESSES. Evidence is admissible to sustain good character of plaintiff where an effort is made, upon cross-examination, to discredit him as a witness. Evidence is admissible to prove the good character of the plaintiff, where he testified, and upon his cross-examination an effort was made to discredit him as a witness. (Post, pp. 428, 429.) Cases cited and approved: Richmond v. Richmond, 10 Yerg., 345; Warfield v. Railroad, 1Ó4 Tenn., 74.
117 Tenn. 430Frazier v. State (1906)
1. MURDER, FIRST DEGREE. Evidence held not to preponderate against verdict of. Evidence stated and held not to preponderate against verdict of murder in the first degree, and, therefore, not to entitle plaintiff in error to a reversal upon the facts. {Post, pp. 435-439.) 3. CHARGE OF COURT. No reversal for omission to charge , upon lower offenses embraced under charge of murder in the first degree, if not prejudicial. Where it appears to he absolutely certain that defendant was not prejudiced by the trial judge’s omission to charge upon the lower offenses embraced in the indictment under the charge of murder in the first degree, there will be no reversal for such omission. {Post, pp. 439-441.) Cases cited and approved: Good v. State, 1 Lea, 293; State v. Hargrove, 13 Lea, 178; Tarvers v. State, 90 Tenn., 485-499. 3. SELF-DEFENSE. Against apparent danger exists, when; charge making right depend upon what would be the conduct of persons of ordinary prudence, caution, and courage is erroneous. The right of self-defense against apparent danger exists where a person honestly believes, upon reasonable grounds, as the facts appear to him, from the violence of another, that he is in danger of death or great bodily harm, and such right cannot be made to depend upon what effect the same circumstances and situation would produce upon the mind of a person of ordinary prudence, caution, and courage; and a charge or instruction that a person of such prudence, caution, and courage must, under the circumstances and situation of the accused, believe it absolutely necessary to kill to save himself from death or great bodily harm, to justify the killing as in self-defense, is erroneous. (Post, pp. 441-449.) Cases cited and approved: Grainger v. State, 6 Yerg., 459; Copeland v. State, 7 Humph., 479; Morgan v. State,- 3 Sneed, 480; Hippy v. State, 2 Head, 219; Williams v. State, 3 Heisk., 37; Jackson v. State, 6 Baxt., 452; Allsup v. State, 5 Lea, 362; Hull v. State, 6 Lea, 249; Allen v. United States, 150 U. S., 563; Hickory v. United States, 151 U. S., 303; People v. Lennon, 71 Mich., 298. Case cited and disapproved: Steinmeyer v. People, 95 Ill., 383. 4. SAME. Same. Erroneous instruction as to apparent danger ■where it is a case of actual danger or no danger at all is not . prejudicial nor reversible error, when. But where it is a case of actual danger or a case of no danger, and not a case of apparent danger, a charge or instruction to the effect that the circumstances and situation must he such as to induce a person of ordinary prudence, caution, and courage to believe it absolutely necessary to kill to save himself from death or great bodily harm, is not prejudicial to the accused, and does not constitute reversible error. (Post, pp. 441, 442, 443, 44'5, 446, 448.) 5. CHARGE OF COURT. Refusal of special requests not made a part of the record by bill of exceptions cannot be reviewed or considered by supreme court. Refusal to charge, in a criminal case, special requests for additional instructions appearing in the transcript of the record, but not made a part of the record by the bill of exceptions, cannot be considered or reviewed by the supreme court. (Post, pp. 449, 450.) 6. SAME. Same. Special requests are not made a part of the record by being set out in motion for new trial. Special requests for additional instructions are not made a part of the record by being set out in the motion for a new trial, made in the court below, because such motion is not the action of the court, hut the statement of the party, and the facts therein recited may or may not he true. {Post, p. 450.) 7. SAME. Every fact and element of the offense must be proved beyond a reasonable doubt to warrant a verdict of guilty. The charge of the court, after stating the theory and contention of the State, instructing the jury that, if they find the theory and contention of the State to be true, defendant would be guilty of murder in the first degree, and they should so find, is erroneous, because it fails to instruct the jury that every fact and element of the offense must be found to be true beyond a reasonable doubt to warrant a verdict of guilty. {Post, pp. 450-461.) Cases cited and approved: Purltey v. State, 3 Heisk., 26; Wiley v. State, 5 Baxt., 662; Lawless v. State, 4 Leav 179-182; Railroad v. Gower, 85 Tenn., 473, 474; Owen v. State, 89 Tenn., 698; Owen v. State, 89 Tenn., 705; Hamilton v. State, 97 Tenn., 456; Rex v. Stone, 6 T. R., 528. 8. SAME. Evidence creating a reasonable doubt as to the truth of contention of self-defense entitles defendant to acquittal. The charge of the court, after stating the theory and contention of the accused as to self-defense, instructing the jury that, if from all the facts and circumstances, they find the defendant’s theory and contention to be true, he should be acquitted, is erroneous,' because the law is the defendant is entitled to an acquittal where the evidence as to self-defense creates in the mind of the jury a reasonable doubt as to its truth. {Post, pp. 451, 460-461.) Cases cited and approved: Wiley v. State, 5 Baxt., 662; Hamilton v. State, 97 Tenn., 456; Legere v. State, 111 Tenn., 376. 9. SAME. Misleading as eliminating defense of self-defense, and as not requiring proof of the offense and venue beyond a reasonable doubt is erroneous. The charge of the court, instructing the jury that the law presumes every man innocent until the contrary is shown by proof; that, though absolute certainty of guilt is not required, a moral certainty is; and that, before the jury can find the defendant guilty, they must be satisfied from the evidence that the deceased was hilled by defendant in Roane county, is erroneous and misleading, as eliminating the defense of self-defense, and as improperly charging with reference to the quantum of proof required to establish the hilling and venue, whereas the material facts of the offense and venue must be established, not only to the satisfaction of the jury, but beyond a reasonable doubt. {Post, pp. 452, 453, 460-462.) 10. SAME. Finding of guilty must be made from the evidence beyond a reasonable doubt, as with or without mitigating circumstances, when. The charge of the court instructing the jury that, if they find from the evidence that defendant is guilty of murder in the first degree, with or without mitigating circumstances, they will so render their verdict, is erroneous, because it fails to require such finding to be made from the evidence beyond a reasonable doubt. {Post, pp. 453, 454', 462, 463.) 11. SAME. Instruction requiring the reasonable doubt to be a substantial and well-founded doubt is erroneous, when. The charge of the court instructing the jury that the defendant should not be convicted of any offense of which they entertain a reasonable and substantial and well founded doubt is erroneous, as requiring the reasonable doubt to be both substantial and well founded, especially where the doctrine as to reasonable doubt is charged meagerly in a single paragraph, and not referred to in other parts of the charge. {Post, pp. 454, 463-467.) Cases cited and approved: Purkey v. State, 3 Heisk., 26; Butler v. State, 7 Baxt., 37; Lawless v. State, 4 Lea, 178; Turner V. State, 4 Lea, 207; Owen v. State, 89 Tenn., 700; Commonwealth v. Webster, 5 Cush. (Mass.), 295. Cases cited: State v. Coleman, 20 S. C., 455; State v. Summer, 55 S. C., 32; Brotherton v. People, 75 N. Y., 159-163; State v. Blunt, 91 Mo., 503. IS. MITIGATING CIRCUMSTANCES. Found in verdict for murder in the first degree should not be disregarded by the trial judge, when; case in judgment. It is error for the trial judge to disregard the finding of mitigating circumstances in a verdict for murder in the first degree, and to sentence defendant to death, instead of imprisonment for life, where the deceased was a violent and dangerous man, having little regard for the law, and not hesitating to attempt to redress his own wrongs, real or imaginary, with force and violence, who had previously and wrongfully assaulted the defendant with a knife, and ¡had been justifiably knocked down by the defendant, and who in consequence had made threats to kill the defendant, which threats had been communicated to defendant, and the defendant had just cause to be afraid of the deceased, and sons, and the fatal meeting may have been accidental. (Post, pp. 467, 468.) 13. SAME. Same. Trial judge’s erroneous disregard of finding of mitigating circumstances may be corrected by supreme court in its judgment of affirmance. The error of the trial judge in disregarding the finding of mitigating circumstances in a verdict for murder in the first degree, in a case where it should be regarded, is not one for which a reversal and new trial may be allowed, but it is one which the supreme court may correct in its judgment upon affirmance. (Post, p. 468.)
117 Tenn. 470Adams v. Cumberland Inn Co. (1906)
1. NEGLIGENCE. Action for injury proximately caused by violation of or by noncompliance with common law, statute, or city ordinance, when. As a general rule, the violation of law (whether the common law, statute, or city ordinance), or the failure to discharge and perform a duty imposed by law in the interest of the public, is actionable negligence, and any one coming within the protection of the law, or intended to be benefited by it, who suffers an injury peculiar to himself, proximately caused by the violation of the law or by noncompliance with it, may maihtain an action against the offender for the injuries sustained by him. {Post, p. 477.) Cases cited and approved: Queen v. Dayton Coal & Iron Co., 95 Tenn., 458; Weeks v. McNulty, 101 Tenn., 495; Railway v. Haynes, 112 Tenn., 712. 3. HOTELS AND LODGING HOUSES. Regular boarder is included in a statute and city ordinance requiring keepers or proprietors to provide fire escapes. The statute (Acts 1899, ch. 178, secs. 1, 2, 3, and 9) and a city ordinance, requiring the keeper or proprietor of every lodging house over two stories in height to provide means of escape in case of fire, includes and protects a regular boarder as well as a transient guest. {Post. pp. 475-478.) Acts cited and construed: 1899, ch. 178, secs. 1, 2, 3, and 9. 3. SAME. Statute requiring keepers or proprietors to furnish, rope or rope ladder fire escapes does not impose the duty on the owner of a hotel operated by a lessee. The statute (Acts 1899, ch. 178, sec. 1), requiring the keeper or proprietor of certain hotels or lodging houses to provide ropes or rope ladders for the escape of lodgers in case of fire does not impose this duty on the owner of a hotel operated by a lessee. (.Post, pp. 475, 476, 478, 479.) Acts cited and construed: . 1899, ch. 178, secs. 1 and 2. 4. SAME. Statute requiring certain fire escapes by owners of hotels over certain dimensions does not apply to a hotel not exceeding those dimensions. The statute (Acts 1899, ch. 178, sec. 2), requiring the owner of every hotel or lodging house over three stories in height or' over one hundred and fifty feet in length to provide certain iron balconies with iron stairs from one balcony to the other, does not apply to a hotel not exceeding those dimensions. (Post, pp. 476, 479.) Acts cited and construed: 1899, c,h. Í78, sec. 2. 5. SAME. Statute requiring certain hotels thereafter constructed to be provided with certain stairways does not apply to hotels previously erected, though changes are subsequently made. The statute (Acts 1899, ch. 178, sec. 9), providing that all hotels and lodging houses hereafter constructed of certain dimensions shall have certain stairways, does not apply to a hotel built previous to the enactment of such statute, although inconsiderable changes and additions are made • after the enactment. (Post, pp. 476, 479.) Acts cited and construed: 1899, ch. 178, sec. 9. 6. SAME. City ordinance requiring fire escapes is a valid police regulation, when. A city ordinance imposing upon the owners of hotels, lodging houses, and certain other buildings the duty of placing fire escapes upon them, when authorized by the charter of the city, is a reasonable and valid police regulation. (Post, pp. 476, 477, 479.) Acts cited and construed: 1897, cli. 161, see. 9, subsee. 23. 7. SAME. Same. City ordinance is effective from its passage, though notice be required to enforce penalty, when. A city ordinance requiring fire escapes to be attached to certain hotels and other' buildings, and providing that any owner refusing to attach them, upon notice of the city fire board, shall be liable, upon conviction, to a penalty of five dollars per day, was effective from its passage upon the owners of such buildings, notwithstanding the provision as to notice, because the notice is only necessary to subject the owner to the penalty. (Post, pp. 476, 477, 479.) 8. SAME. Questions as to proper equipment of fire escapes under city ordinance, and whether failure to so equip was proximate cause of injury, are for the jury; and direction of verdict is error, when. In an action by a guest or boarder at a hotel against the owner thereof for personal injuries received in being compelled to jump from a third story window during a fire to save his life, it is reversible error for the trial judge to direct a verdict in favor of the defendant, where there is evidence tending to show that, if the hotel had been properly equipped with fire escapes, as required by city ordinance, the plaintiff could have reached them and made his exit safely, and whether this was so or not, or whether the failure to attach the fire escapes was the proximate cause of the, injury, was a question for the jury, as well as what would' be a proper equipment of fire escapes and proper compliance with the city ordinance requiring them to be attached by the owner. (Post, pp. 476, 477, 479-481.) Case cited and approved: "Weeks v. McNulty, 101 Tenn., 495. 9. SAME. Noncompliance with city ordinance requiring fire escapes cannot be waived, as public policy forbids such waiver; A boarder or guest at a hotel does not waive compliance with a city ordinance, requiring fire escapes to fie attached, fiy continuing to occupy a room in the hotel for six months with full knowledge that there were no fire escapes upon the building, for the reason that individuals affected cannot suspend such law fiy waiver or express contract, as to permit this would be against public policy. (Post, pp. 476, 477, 479-481.)
117 Tenn. 482Knoxville Traction Co. v. Wilkerson (1906)
PROM KNOX. Appeal in error from the Circuit Court of Knox County. — Joseph W. Sneed, Judge.
117 Tenn. 489Harness v. Hughett (1906)
1. CIRCUIT COURT. Has no jurisdiction to order a sale of decedent’s land, -when. The circuit court has no jurisdiction to order a sale of lands, on appeal from a decree of the county court dismissing a petition filed by the administrator of-an insolvent estate to sell the lands of his decedent for the payment of debts of the estate; and a purchaser at such sale acquires no title. Code cited and construed: secs. 4066-4094, 4879 (S.); secs. 3171-3199, 3864 (M. & V.); secs. 2327-2354, 3147 (1858). ¡3. COUNTY COURT. Jurisdiction and procedure in administration of insolvent estates of $1,000 and under, and appeals therefrom. The statutes conferring exclusive jurisdiction on the county court in the administration of insolvent estates of the valué of one thousand dollars and under, present a complete plan for the administration of such estates; and, although appeals from the decision of the clerk of the county court as to disputed assets, or disputed claims against the estate, or claims of a doubtful character brought forward by the personal representative, or from the judgment of the county court confirming the report of the clerk upon the liabilities and assets of the estate, may he prosecuted to the circuit court and from there to the supreme court, yet the final adjudication of the superior court upon such appeals is to he certified hack to the county court, and such appeals do not transfer the administration of the estate to the circuit court, and the county court does not thereby lose its jurisdiction over the final distribution of the proceeds of the estate among its creditors. Code cited and construed: secs. 4066-4094 (S.); secs; 3171-3199 (M. & Y.); . secs. 2327-2354 (1858). Case cited and approved: Bashaw v. Temple, 115 Tenn., 596.
117 Tenn. 500Carroll v. Griffith (1906)
1. STATUTES. No implied repeal when, not repugnant. Eminent domain. Damages for land taken for public road paid, how. Acts 1901, ch. 136 (public road law), sec. 7, as amended by Acts 1903, ch. 633, providing the method of procedure to open, change, close, or restore to public use any public road, is not repugnant to, and does not repeal, the provision in section 14, chapter 1, Acts 1891, that the damages assessed in such cases “shall be paid out of the general funds raised for county purposes under the order of the commissioner on the county judge, or chairman of the county court, who shall issue his warrant therefor, if he approve the same.” Acts cited and construed: 1891, ch. 1, sec. 14; 1901, eh. 136, sec. 7; 1903, ch. 633. '2. SAME. Road law. Not void for failure to provide for payment of damage when prior unrepealed act provides method. Act 1901, ch. 136, is not unconstitutional for a failure to provide for the payment of the damages assessed in favor of a landowner, through whose lands a public road may be opened; for said Act should be read in connection with section 14, chapter 1, Acts 1891, which makes provision for the payment of damages assessed in such cases. Acts cited and construed: 1901, ch. 136; 1891, ch. 1, sec. 14. 3. PUBLIC ROAD. Error to divest title out of landowner. Public entitled to an easement only. In a proceeding under the statute to open a public road through certain land» it is error for the court to divest title out of the landowner and vest it in the public. The public obtains only such an easement as may be necessary to render effective the right to occupy and use as a public road the land, laid off as' such. 4. SAME. Damages payable out of general county fund. Not out of district road fund. Under a proceeding to open a public road, the damages assessed should be paid out of the general fund of the county, and not-out of the funds of a particular road district. Act cited and construed: 1891, ch. 1, sec. 14. 5. EVIDENCE. Erroneous exclusion cured by subsequent ad mission. The erroneous exclusion of evidence on a particular matter in issue is cured by the subsequent admission of the rejected evidence.
117 Tenn. 507Lowry v. Southern Railway Co. (1906)
1. CHARGE OP COURT. Ho reversal for harmless error. No reversal will be granted for harmless error in the charge of the trial judge, where the supreme court can see that the party complaining of such error was not injured thereby. (Post, pp. 514-520.) See headnote 5. Numerous cases cited and approved in the opinion, on pages 514-520. 2. SAME. Same. Courts, procedure, and rules for attainment of justice, and not for its prevention. Courts w'ere instituted for the administration of justice, and the procedure and rules of practice obtaining therein were designed for the same purpose, and when the judges can clearly perceive and are fully satisfied that the jury were not influenced by the errors complained of, and that- the right under the law has been attained, they should not permit the rules and procedure designed for the advancement of justice to be used for its prevention. (Post, p. 520.) 3. LAW. Spirit must not be subordinated to the letter. " The spirit of the law must not be subordinated to the letter, nor the seal of justice to its form. (Post, p. 520.) 4. TECHNICALITIES. To serve ends of justice, not to thwart justice. Technicalities are instruments in the hands of justice to serve her ends, not cords to bind her. (Post, p. 520.) 5. CHARGE 01? COURT. No reversal for harmless error. Case in judgment. Errors in the charge of the trial judge in leaving to the jury the question of the defendant railroad’s compliance with the statutory precautions for the prevention of accidents on railroads, where it was the law of the case established by the supreme court in disposing of the demurrer to the evidence, that such precautions had been complied with, and in giving instruction on nominal damages, and in refusing a proper request for an instruction authorizing punitive damages, are harmless and innocuous, where there was gross negligence on the part of plaintiff’s intestate, an intelligent boy nine years old who, though accustomed to trains and knowing the danger of being on the railroad track, was killed by springing immediately in front of a rapidly moving train, in attempting to cross ahead of it, when he must have seen and heard it, although the defendant was guilty of gross negligence in running a train, in the dusk of evening, without a headlight or lookout, at a speed of thirty-five miles an hour, within a town and through a deep cut, near a path leading into it, where children were accustomed to play. (Post, pp. 510-522.) See headnote 1, 'and reference to citations there made. 6. NEW TRIAL. Bill of exceptions must show that it contained all the evidence heard upon motion for new trial. . Assignment of error for the refusal of a new trial by the trial judge for a remark claimed to have been made by a juror to his fellows, during their consideration of the case, cannot be considered, where the bill of exceptions does not show that it contained all the evidence heard upon the motion for a new trial. (Post, p. 523.) Cases cited and approved: Insurance Co. v. Crockett, 7. Lea, 725; Thomas v. State, 109 Tenn., 684, 687, 688; Ransom v. State, 116 Tenn., 355. • ' '
117 Tenn. 524Guinn v. Eaves (1906)
1. PUBLIC FERRIES. Owner of both banks entitled to preference of ferry franchise must be owner at both landings; landing in public road. The rule of law giving the owner of the land on both sides of a stream, where a ferry has been or shall be established, a preference in the matter of a ferry franchise, is not applicable where the ferry franchise granted by the county court to such owner contemplates a landing on one side at the mouth of a public road passing through his land, and on the opposite side, a landing below his land, and upon the land of another, where such landings were maintained; and such owner on both sides with such ferry franchise has no preference as against a ferry franchise subsequently obtained by the owner on the opposite side from the county court of a different county, on his side of ' the stream. Code cited and construed: Sec. 1696 (S.); sec. 1423 (M. & V.); sec. 1241 (T. & S. and 1858). Case cited, approved, and distinguished: Allen v. Farnsworth, 6 Yerg., 189. 2. SAME. Discretion of county court in granting second ferry franchise is not grossly abused and will not be revised, when. The county court, in granting a ferry franchise to operate a second ferry across a stream, where an existing ferry is properly operated and carried on under a ferry franchise previously granted to another, is not guilty of gross abuse of its discretion, and the supreme court will not interfere therewith, though one ferry will accommodate the traveling public, and, if carried on properly, no public exigency demands two ferries. Case cited and approved: Blair v. Carmichael, 2 Yerg., 306. 3. SAME. Ferry franchise is grantable to one of the tenants in common of land on the stream. A ferry franchise may be granted by the county court to one of several tenants in common of the land on the bank of a stream. 4. PUBLIC ROADS. By acceptance of dedication and working for years by action of county court. A road is sufficiently dedicated to the public for a public road, where it had been accepted by the county court as a public road, and hands had been assigned to work it for years. 5. COURT OF CHANCERY APPEALS. Finding of intent to dedicate a road to the public, without the special facts, is sufficient. The finding, by the court of chancery appeals, of an intent to dedicate a road to the public, is a finding of fact, and it is unnecessary for that court to find the special facts to enable the supreme court to determine that question. Cases cited and approved: Bank v. Evans, 95 Tenn., 705; Ellis v. Brabson, 99 Tenn., 54'0. 6. PUBLIC FERRIES. Damages recoverable by owner of one ferry franchise against the owner of another ferry franchise wrongfully excluding him on refunding bond given upon dissolution of injunction. Where an injunction is properly issued at the instance of the complainant as the owner of one ferry franchise against the defendant as the owner of another ferry franchise, which injunction was dissolved upon a refunding bond, but was restored and made perpetual upon the final hearing, the complainant is entitled to recover from the defendant and his surety on the refunding bond, one-half of the ferriages collected or that should have been collected since the dissolution of the injunction, after deducting the actual, proper, and necessary costs and expenses incident to the ferrying.
117 Tenn. 537Sharp v. State (1906)
1. JUDGMENT. Absence of, cannot be supplied; remandment for, ■when. The absence of a judgment in the lower court cannot be supplied, even where there is a proper verdict; and in such case an appeal must he dismissed and the case remanded for judgment in accordance with the verdict. Cases cited and approved: Nolin v. State, 6 Cold., 12; Tomasson v. State, 112 Tenn., 596. , Case cited, approved and distinguished: Cowan v. State, 117 Tenn., 246. 2. CLERK’S COSTS. Eor making transcript, disallowed, when. Where, on appeal of a criminal case, the transcript is in inextricable confusion, the costs of the clerk for making it will he disallowed.
117 Tenn. 539Funkhouser v. Fowler (1906)
1. MARRIED WOMAN. Separate estate. Created by deed from husband. A conveyance executed by a husband to his wife during the marriage relation creates a separate estate in the wife without any words expressly indicating an intention to create such an estate. Case cited and approved: Barnum v. Lemaster, 110 Tenn., 653. 3. SAME. Same. No privy examination necessary if powers of feme sole conferred by deed. If land be conveyed to a married woman as her separate estate, with an absolute power of disposition as a feme sole conferred by the instrument creating the estate, she may convey it without a privy examination. Cases cited and approved: Sherman v. Turpin, 7 Cold., 382; Peterson v. Richmond, 93 Tenn., 71. 3. SAME. Same. Deed of, void without privy examination ‘ when powers of feme sole not expressly conferred. A deed made by a ■ married woman, without privy examination, for land held by her under a deed from her husband, which latter deed does not expressly confer upon her the power to convey said land as a feme sole, is ineffectual to pass title to the land. Code cited and construed: Sec. 4246 (S.); sec. 3350 (M. & V.); secs. 2484-2486 (1858). Case cited and approved: Robinson v. Queen, 87 Tenn., 445.
117 Tenn. 543Simms v. Randall (1906)
1. LIFE INSURANCE. Beneficiary* Rights of, not divested without consent, when. When a life insurance policy is issued payable to a third person whose relationship to the assured is such as to authorize the taking out of insurance for the benefit of such party, the general rule is that a right is at once vested which cannot be divested without the consent of the beneficiary. Case cited and approved: Gosling v. Caldwell, l.Lea, 454. 2. SAME. Same. May he changed at will of assured, when right to do so is reserved. Where, however, the by-laws of the benefit society or order, or the terms of the certificate or policy of life insurance, permit the. member, or the assured, to change the beneficiary at pleasure, the rule stated in the first headnote does not apply, and the beneficiary acquires no vested interest, but' has a mere expectancy, depending alone upon the will of the assured. Case cited and approved: Life Association v. Winn, 96 Tenn., 224. 3. SAME. Same. Case in judgment. The by-laws of a mutual benefit society provided that members might change beneficiaries on application accompanied by the consent of the original beneficiary and surrender of the original certificate. The certificate was issued to a member for the benefit of his sister, who died before the member. The member made no change in the certificate, and at his death it remained as it had been originally issued, “payable to” his sister. Held,, that the sister died the owner of a vested interest in the certificate, and the fund accruing on the death of the member passed under the statute of distribution to her distributees.
117 Tenn. 549Conner v. Supreme Commandery Golden Cross (1906)
1. MUTUAL BENEFIT SOCIETY. By-laws. Reasonable increase in rates valid. A by-law or rule of a mutual benefit society making a reasonable increase in rates on a certain class of its policy holders, whose policies provided that they should be valid and binding “upon condition that the member should comply in the future with the laws, rules and regulations that may hereafter be enacted by the supreme commandery to govern said commandery and fund”, is enforceable, and does not breach the contract with, nor violate any vested rights of, such policy holders, although the by-laws provided when the policy was issued to the complaining policy holder that members of a certain initiary degree taken by him should pay the same amount on each assessment thereafter. 2 SAME. Same. Member bound by, although insane. A member of a mutual benefit society is bound by a legal and reasonable by-law or rule adopted by the society increasing the rate of his assessments, although he is insane at the time such by-law or rule is adopted'. 3.. SAME. Same. Must be reasonable. Remedy, if unreasonable. A by-law or rule of a mutual benefit society increasing the assessment rates on its members, to be valid must be reasonable; and if unreasonable, the inember may withdraw and sue for what has already been paid, as upon a breach of contract'. 4. SAME. Same. Same. Case in judgment. Complainant’s intestate procured a policy in the defendant mutual benefit society in 1878, at which time his assessment rate was 52.17, payable at irregular dates as deaths occurred; in 1900 the society raised the rate 100 per cent, but required that it be paid monthly, so that the yearly cost was but little changed; in 1903 the society changed the rates, providing that all members should be assessed at their attained age, except that there should be no increase on a member after seventy-one years of age, and complainant’s intestate, who was then about eighty, was assessed $144 a year, as against $52.08, his previous rate. He declined to pay the increased rate in 1903, and died in 1905. His administrator sued to recover the amount of the assessments paid. Held, that such increase was not unreasonable and the administrator could not recover.
117 Tenn. 557Stamper v. Venable (1906)
1. ESTOPPEL. Litigant must maintain consistent position. One who bas deliberately taken a particular position in tbe course of litigation, witbout mistake induced by the opposite party, must act consistently therewith throughout the litigation. 2. WILL. Instrument may be, although in form a deed. An instrument, called a deed by its maker, may be in the form of a deed, and be supported by a consideration, yet if it purports to convey a title which does not arise until the death of the maker, it is a will. Case cited and approved: Ellis v. Pearson, 104 Tenn., 593. 3. DEED. Instrument is, when in form of deed, reciting consideration, and vests title in praesenti. An instrument in the usual form of a deed of conveyance, reciting that it was executed in consideration of the sum of one dollar and a further consideration that the grantee will deed back the land to the grantor “when called for so to do”, and purporting to vest title in praesenti, is a deed and not a will. 4. SAME. Contemporaneous power of attorney to grantor to collect rents for life does not make it a will. And an instrument such as that described in headnote 3 is a deed, and not a will, although contemporaneously with the execution of the instrument the grantee executed to the grantor a power of attorney authorizing the grantor to collect the rents of the property during the latter’s life. 5. SAME. May reserve right of revocation to grantor. The grantor in a deed of conveyance may reserve to himself a power of revocation without thereby rendering the deed invalid or inoperative. Cases cited and approved: Butler’s Case, 2 Coke, 25; Ricketts v. Louisville, etc., Ry. Co., 91 Ky., 221. 6. SAME. Same. Does not convert deed into a will. A power of revocation reserved to the grantor in an instrument conveying land does not convert that which would otherwise be a deed, into a will. 7. SAME. Surrounding facts may he considered to ascertain whether deed or will was intended. In determining whether an instrument purporting to convey land is a deed or a will, the court may look to the surrounding facts to aid in the ascertainment of the intent of the parties at the time the instrument was executed. Cases cited and approved: Rice v. Rice, 68 Ala., 216; Tuttle v. Raish (Iowa), 90 N. W., 66; Kiseeker’s Case, 190 Pa., 476. 8. SAME. Conveying estate on condition need not reserve to heir a right of entry in case of breach. In a deed of conveyance which creates an estate in the grantee “on condition”, either precedent or subsequent, it is not necessary that a right of entry should be expressly reserved to the heir of the grantor, in order that such heir may exercise the! right of entry in case of breach of the condition. Case cited and approved: Jackson v. Topping, 1 Wend. (N. Y.), 388. 9. SAME. Right of revocation is personal to grantor, and does not create estate “on condition.” A deed of conveyance which grants a fee determinable only upon the exercise by the grantor of a power of revocation reserved to her, does not create an estate “on condition,” and such right of revocation is personal to the grantor, and determines at her death. 10. SAME. Consideration. Gross inadequacy raises presumption of fraud, when. In a conveyance of land, the inadequacy of the consideration may be so gross, unexplained, and coupled with facts inequitable in character as to raise a presumption of fraud, and thereby avoid the deed. Case cited and approved: Stephens v. Ozbourne, 107 Tenn., 572. 11. SAME. Same. Inadequacy of, does not raise presumption of fraud, when. Where it clearly appears that a grantor intelligently and deliberately disposed of his property in a manner to satisfy himself, no presumption of fraud arises because of inadequacy of consideration, however great or small; and there is no reason for interference by the courts. Case cited and approved: Mann v. Hussey, 101 Tenn., 596.
117 Tenn. 569Mayor of Chattanooga v. Raulston (1906)
1. TAXATION. Status of property for, fixed as of January tenth of each year, when. Under a general assessment act providing for the assessment of all property for State, county and municipal purposes against the person owning the property on a designated date (January tenth), and declaring that a lien exists from such date in each year for the taxes of that year, the status of all real estate, for purposes of taxation, whether State, coiinty or municipal, is fixed as of the date designated in the statute, and whatever is taxable on that date has its status fixed for the ensuing year. Acts cited and construed: 1903, ch. 258. 2. MUNICIPAL CORPORATIONS. Must have legislative authority to levy taxes, and can only tax accordingly. When a municipal corporation assumes to tax property, it must have legislative authority to justify its action; and it can' only tax at the time and in the manner that the State in its wisdom has seen proper to permit. Case cited and approved: Memphis v. Bing, 94 Tenn., 644. 3. TAXATION BY MUNICIPAL CORPORATIONS. Real estate, to be taxable for municipal purposes, must be within the corporate limits on the date fixing the status of property for taxation. Case in judgment. After the date fixing the status of property for the year 1905, that is, in May, 1905, certain territory was annexed to the city of Chattanooga as the ninth ward of said city, after which the municipal council passed an ordinance providing revenue for the ensuing fiscal year beginning October 1, 1905, and ending September 20, 1906, by applying a given tax rate to the assessment made by the county assessor for 1905. Held: Real estate within said territory so annexed was not, in the absence of special statutory authority, subject to taxation for municipal purposes for the year 1905. Acts cited and construed: 1903, ch. 258. Cases cited and approved: Lexington v. Wilkerson, Jackson, MS., 1893; Austin v. Butler (Tex. Civ. App.), 40 S. W., 340; Harman v. New Marlborough, 63 Mass., 525. 4. SAME. Same. Question reserved and not decided. "Whether the legislature may confer power upon a municipality to fix the tax year at a date different from that fixed by the general law.
117 Tenn. 578Blackman v. United States Casualty Co. (1906)
1. HEALTH INSURANCE. Applicant’s inaccurate statement as to obscure or undeveloped disease will not forfeit policy, when. In an application for a health insurance policy against loss of time by reason of sickness, an inaccurate statement as to a matter of opinion merely, as a statement concerning the applicant’s bodily condition with respect to obscure or undeveloped disease, will not cause a forfeiture of the insurance, if such statement was made honestly and without any reason to believe that it was false or a misrepresentation, and after the exercise of due diligence to learn the truth of the matter so represented. (Post, pp. 580-586.) Cases cited and approved: Boyd v. Insurance Co., 90 Tenn., 212; Knights of Pythias v. Rosenfeld, 92 Tenn., 508; Insurance Co. v. Lauderdale, 94 Tenn., 642; Rand v. Society, 97 Tenn., 291; K. of P. v. Cogbill, 99 Tenn., 28; Knights of Honor v. Dickson, 102 Tenn., 255; Woodward v. Insurance Co., 104 Tenn., 49, 52-54; Society v. Ford, 104 Tenn., 533. 2. SAME. Same. Case in judgment. Applicant’s statement, in an application for a health insurance policy against loss of time caused by nephritis and certain other named diseases, that he had not consulted a physician or taken treatment during the last two years, except for bad cold the previous week, and that he had recovered, is as to a matter of mere opinion, and will not forfeit the policy, where it does not appear that he knew better, though the proof shows that he was then entering on the first stages of nephritis. {Post, pp. 580-586.) 3. SAME. Notice of sickness is a condition precedent to right of recovery under the policy, when. In a health insurance policy against loss of time by reason of certain diseases insuring “subject to the provisions, conditions, definitions, and limits” in the policy, a clause providing that “failure of the insured to comply with any provision or condition herein shall forfeit all rights to indemnity,” refers to and embraces within its terms the provision or condition of the policy requiring written notice of any disease insured against to be given to the insured within ten days after its contraction, and makes the notice a condition precedent to the right of recovery, and a failure to give the notice operates to forfeit all claims for such sickness. (Post, pp. 587-594.) Acts cited and construed: 1895, ch. 160, sec. 22. Oases cited and construed: Thornton v. Insurance Co., 116 Ga., 121; Insurance Co. v. Thornton, 119 Ga., 455; Meech v. Society, 63 N. Y. Supp., 1008, 50 App. Div., 144; Martin v. Association, 61 Hun, 487, 16 N. Y. Supp., 279. Case cited and distinguished: Insurance Co. v. Whitaker, 112 Tenn., 151, 167.
117 Tenn. 595McHarge v. M. M. Newcomer & Co. (1906)
1. INDEPENDENT CONTRACTOR. One undertaking1 to do a completed job without control or direction as to instrumental-ities by the proprietor. Where the occupants of a storehouse contract with an awning manufacturer, constructer, and repairer to put their awnings in proper condition for what the job is reasonably worth, exercising his own judgment as to the means and manner of doing so, without directions from the proprietors as to how the repairs should be made and without any control by them over the instrumentalities to be used in doing the work, such repairer is an independent contractor, and not a mere servant . or employee. (Post, pp. 598-604.) Cases cited and approved: Iron Co. v. Dodson, 7 Lea, 373, 374; Powell v. Construction Co., 88 Tenn., 697; Bennett v. True-body, 66 Cal., 509. 2. SAME. Same. Liability of proprietor for injuries resulting from fall of awning roller upon a pedestrian during repairment of the awning by an independent contractor. The repairment of an awning attached to a building over a much frequented street or sidewalk in a populous city, and at a place where persons are constantly coming and going and standing, without any precautions taken to prevent portions of tie awning, materials, or tools from falling on those below, is intrinsically dangerous to the public, and the proprietors are guilty of such negligence as will render them liable for injuries sustained by the fall of an awning roller upon a person passing thereunder during the progress of the work of repairment, though the work was done by an independent contractor. (Post, pp. 600, 603-617.) Cases cited and approved: Chicago v. Robbins, 2 Black (U. S.), 418; Robbins v. Chicago, 4' .Wall. (U. S.), 667; Jefferson v. Chapman, 127 Ill., 438; Hawver v. Whalen, 49 Ohio St., 69; Railroad v. Morey, 47 Ohio St., 207; Woodman v. Railroad, 149 Mass., 335; Omaha v. Jensen, 35 Neb., 68; Engle v. Club, 137 N. Y., 100; Elevator Co. v. Anderson, 98 Tex., 156. 3. NEGLIGENCE. Presumed from falling of awning or obstruction over street, if unexplained by the erecter and maintainer ■thereof. Where one lawfully on a public street of a city is injured' by the falling of an awning or other obstruction erected over the street, or some portion of such obstruction, there is a presumption of negligence upon the part of the person maintaining the obstruction which, if left unexplained, is sufficient to support a verdict in favor of the injured plaintiff. (Post, p. 617.) Cases cited and approved: Mullen v. St. John, 57 N. Y., 567; Railroad v. Hopkins, 54 Ark., 209. 4. MUNICIPAL CORPORATIONS. Hold streets in trust for the public to be used by it subject to police regulations. The streets of cities and towns belong to the public, and they are held in trust as easements for it by the municipality where they are located; and the general public have the right to travel upon them, and to transport property through and over them, subject to certain reasonable police regulations. (Post, pp. 604, 605.) Case cited and approved: Humes v. Knoxville, 1 Humph., 403. 5. SAME. Same. Use of streets by abutting owners beyond the uses of the general public. While abutting owners have some further rights beyond those of the general public in the particular portions of the streets opposite and adjacent to their property or lots for the purpose of ingress and egress, and for light and air, and the temporary use for loading and unloading merchandise, and similar purposes; which use is required by public convenience and necessity, still they have no right to appropriate any portion of a street to their exclusive use in carrying on their business, although sufficient space is left for the use or passage of the public. (Post, p. 605.) 6. SAME. Same. Same. Encroachments upon streets constitute a public nuisance, exceptions. Any encroachment upon a street or any obstruction thereon, on or above the surface, of a permanent nature, which endangers or interferes with its use, constitutes a public nuisance; but this rule does not apply to ornamental or shade trees in the sidewalks of streets devoted chiefly to residences, nor to the structures of public service companies, when such structures are authorized by proper authorities. (Post, p. 606.) Cases cited and approved: State v. Stroud (Tenn. Chy. App.), 52 S. W:, 697; Wood v. Mears, 12 Ind., 515; Yan O’Linda v. Lathrop, 21 Pick. (Mass.), 292; Raymond v. Keesburg, 84 Wis., 302; Sikes v. Manchester, 59 Iowa, 65; Ft. Wayne v. DeWitt, 47 Ind., 391; Welsh v. Wilson, 101 N. Y„ 254; Callahan v. Gilman, 107 N. Y., 360; State v. Edens, 85 N. C., 526.
117 Tenn. 618Standard Oil Co. v. State (1906)
1. STATUTORY CONSTRUCTION. Intention to prevail over the literalism of the terms used, when. The fundamental rule in the construction of statutes Is that the real intention shall prevail over the literal terms used, for what is within the letter is not within the statute, unless it he the intention, and what is within the intention is within the statute, though not in the letter; and such construction ought to he put upon a statute as does not suffer it to he eluded or evaded. Several general rules quoted from cases and authorities. (Post, pp. 638-641, 643, 644.) Cases cited and approved: State v. Turnpike Co., 2 Sneed, 89; Pond v. Trigg, 5’ Heisk., 638; Perkins v. Gibbs, 1 Baxt., 175; Gold v. Pite, 2 Baxt., 248, 249; Brown v. Hamlett, 8 Lea, 735; Cooper v. Stockard, 16 Lea, 145; United States v. Railroad, 91 U. S., 72; Church v. United States, 143 U. S., 457; People v. Supervisors, 43 N. T., 130. 3. SAME. Of State statutes to avoid conflict with, constitution, State and federal, and acts of congress within its power. State statutes should he construed so as not to conflict with the constitution of the State or the United States, or the acts of congress within its constitutional powers, if it can be done without violating the evident intention. (Post, pp. 641, 642.) Case cited and approved: Commonwealth v. Gayne, 163 Mass., 205. 3. SAME. Anti-trust statute is constitutional; not regulation of interstate commerce; “importation” used for articles already imported. The anti-trust statute (Acts 1903, ch. 140) is not violative of the constitution of the United States (art. 1, sec. 8), because it .was not intended to apply to interstate commerce; and the word “importation” was inaccurately used in referring to articles already imported. (Post, pp. 642, 643, 644.) Acts cited and construed: 1903, ch. 140, sec. 1. Case cited and approved: Church v. United States, 143 U. S., 457. 4. INTERSTATE COMMERCE. Articles imported after becoming a part of the property here are subject to State legislation. Articles of commerce imported from other States and countries, and commingled with the common mass of property in this State, are no longer articles of interstate commerce, and it is well settled that the commerce in such imported articles may be regulated by State legislation, and they are subject to the police power and revenue statutes of the State. {Post, pp. 643, 647, -648.) Cases cited and approved: Steel & Wire Co. v. Speed, 110 Tenn., 546, 192 U. S., 500; Brown v. Houston, 114 U. S., 622; Coal Co. v. Bates, 156 U. S., 577. 5. STATUTES. Regulating; intrastate commerce enforced, though containing clauses invalid as attempting to regulate interstate commerce, when. Where the primary and chief purpose of a statute is to regulate and protect commerce within the State, and it is complete and capable of effective enforcement, it will be sustained and enforced so far as it relates to such commerce, though it contains clauses invalid as attempting to regulate interstate commerce. (Post, pp. 644, 645.) Cases cited and approved: State v. Scott, 98 Tenn., 254; Austin v. State, 101 Tenn., 579; Kidd v. Pearson, 128 U. S., 1; Plum-ley v. Massachusetts, 155 U. S., 461. 6. INDICTMENTS. Charging conspiracy as to coal oil imported into this State refers to oil already imported and stored here, and not to oil to be imported, when. An indictment charging that the defendants conspired, contracted, and agreed with a certain third person for the purpose and with a view to lessen and destroy full and free competition in the sale of a certain article of sale, coal oil, imported into this State, is a charge with reference to coal oil already imported and stored here, and not oil to be imported. (Post, pp. 645-647.) 7. COMBINATIONS. In violation of State statute are punishable, though incidentally affecting interstate commerce. A combination affecting intrastate commerce is none the less a violation of the anti-trust statute of the. State, and punishable under it, where the agreement made incidentally affects interstate commerce, as where defendant, for the purpose of protecting his own coal oil, stored here, from competition, agreed to give and did give another a quantity of oil on his countermanding an order given a competitor for oil to be shipped from another State. (Post, p. 647.) 8. STATUTES. Corporations are not included in the words “person or persons” in a statute showing a contrary intention, when. Corporations are not indictable for the violation of the anti-trust statute (Acts 1903, ch. 140), because the words “person or persons” used in the indictment provisions thereof, when properly construed with the other provisions, for forfeiture of charters and licenses of corporations, do not include corporations. (Post, pp. 648-654.) Code cited and construed: Sec. 62 (S.); sec. 48 (M. &. V.); sec. 50 (T. &. S. and 1858). Acts cited and construed: 1903, ch. 140, secs. 1-4. Cases cited: State v. University, 4 Humph., 156; Railroad v. State, 3 Head, 523; Publishing Co. v. State, 16 Lea, 176; State v. Brewing Co., 104 Tenn., 715. 9. CODE. Definitions apply to all subsequent statutes. The Code definitions and provisions made applicable to the whole Code apply not only to the Code as originally enacted, but to all amendments thereof, which include all statutes passed since its enactment, in the absence of a contrary intention or purpose expressed in the statutes themselves. (Post, p. 650.) Code cited and construed: Secs. 60-70 (S.); secs. 46-57 (M. & V.); secs. 48-59 (T. &. S. and 1858). Cases cited and approved: Cowan v. Murch, 97 Tenn., 590; Wallace v. Goodlett, 104 Tenn., 672; Carroll v. Alsup, 107 Tenn., 257. 10. COMBINATIONS. Agent procuring contract for lessening full and free competition in trade is guilty of a violation of the anti-trust statute. Where the agent of a corporation, acting upon directions to procure the countermand of orders given by its previous customers to a competitor for the purchase of coal oil, agreed to give and did give to one such customer, a merchant, one hundred gallons of oil to induce him to countermand his order, which was done, and the oil delivered from the company’s storage tank, such agent is guilty of a violation of the anti-trust statute (Acts 1903, ch. 140), because such agreement or combination was made with a view of lessening full and free competition in the sale of oil, and was in effect an agreement procured from said customer not to sell the oil of the competitor. (Post, pp.. 654-662, 678, 679.) Acts cited and construed: 1903, ch. 140, secs. 1 and 3. Cases cited and approved: Bailey v. Plumbers, 103 Tenn., 99, 114; Hooker v. Yandewa^-, 4 Denío (N. Y.), 349; More v. Bennett, 140 Ill., 69; Nestor v. Brewing Co., 161 Pa., 473; Pagua v. Brewing Co., 90 Tex., 298. 11. SAME. Same. Evidence of other like offenses is competent to show the intent, when. The arrangements by which other orders secured by the competitor were countermanded are strong and convincing proof of the intent of the parties in making the one for which the defendant was indicted, and are competent and admissible for that purpose. (Post, p. 658.) IS. CRIMINAL CONSPIRACY. Acquittal of one prevents conviction of the other where only two were alleged to be members. Where two persons are indicted for a criminal conspiracy, and no others are charged or alleged to be members of the conspiracy, and one of the defendants is acquitted, the other cannot be convicted, because then the preconcert of two or more necessary to constitute a conspiracy is not shown. (Post, pp. 662, 663.) 13. SAME. Indictment need not embrace all the conspirators. An indictment for a criminal conspiracy may' embrace only a part of the conspirators, and it is not necessary that all the parties to the conspiracy be indicted, though their names and the facts warranting their indictment appear in the averments. (Post, p. 667.) 14. SAME. Corporation and its officer or agent may 'both be guilty of criminal conspiracy, and both be counted as different parties to make the necessary number. A corporation and its officer or agent engaging in a criminal or unlawful conspiracy must both be held to be parties to it, and must both be considered and counted in computing the necessary number of two or more to constitute a conspiracy. This is the rule not only settled by statute (Acts 1903, ch. 140, secs. 1 and 3), but independent of statute, and founded upon principle and existing in furtherance of sound public policy. (Post, pp. 663-670, 678, 679.) Acts cited and construed: 1903, ch. 140, secs. 1 and 3. Cases cited and approved: People v. Duke, 19 Mise. Rep., 292, 44 N. Y. Supp., 336; Samuels v. Oliver, 130 Ill., 73. 15. CORPORATIONS. May commit wrongs, torts, and crimes, through officers and agents acting in apparent scope of their authority. Corporations may commit wrongs, torts, and crimes, both of nonfeasance and in the discharge of their common duties, and of misfeasance in a violation of statutes and rules of the common law, through their officers and agents acting within the apparent scope of their authority and in the interest of their principal, the wrongful and criminal intent of the officer or agent being imputed to the corporation. (Post, pp. 664-667.) Cases cited and approved: Railroad v. State, 3 Head, 523; Publishing Co. v. State, 16 Lea, 176; Railroad v. Quigley, 21 HoV. (U. S.), 204; Bank v. Bank, 10 Wall. (U. S.), 604; Bank v. Graham, 100 U. S., 699; Stewart v. Waterloo Turn Verein, 71 Iowa, 226; State v. Railroad, 15 W. Va., 362; Oil Co. v. Commonwealth (Ky.), 55 S. W., 8; Commonwealth v. Assn.', 97 Ky., 325; Gil-lingham v. Railroad, 35 W. Va., 588; Smith v. Railroad, 48 W. Va., 69; W. Va., etc., Co. v. Oil Co., 50 W. Va., 611; Norris v. State, 25 Ohio St., 217; The Germania v. State, 7 Md., 1; Buffalo v. Oil Co., 106 N. Y., 669. 16. SAME. Chargeable as conspirator with its agent, acting under directions to do what constitutes a conspiracy, though the agent uses means not specifically authorized, when. Where the special and chief agent and general manager of a corporation directed a subordinate agent and traveling salesman to procure the countermand of orders given by its previous customers to a competitor for the purchase of coal oil, and the salesman agreed to give and did give a quantity of oil to one of such customers in consideration of his countermanding an order .to the competitor for the purpose of preventing competition in preventing such customer’s dealing in the oil of the competitor, the corporation is chargeable as a conspirator under the anti-trust statute (Acts 1903, ch. 140), though the traveling agent and salesman was not specifically authorized to give the oil away, the said chief agent being presumed to have been present and assenting, for and as representing the corporation, to the means used by its coconspirator, the subordinate agent and salesman, to carry out the conspiracy to restrict competition. (Post, pp. 670-674.) Acts cited and construed: 1903, ch. 140. Cases cited and approved: Irvine v. State, 104 Tenn., 132-147; Spies v. People (Ill.), 12 N. E., 865, 3 Am. St. Rep., 320-482; United States v. Rindskopf, 6 Biss., 259; Phillips v. State (Tex. App.), 9 S. W., 557, 8 Am. St. Rep., 471. 17. CRIMINAL CONSPIRACY. Evidence of overt act not included in preconceived plans is competent, when. Proof of an overt act is competent in cases like that stated in the last headnote, though the alleged preconceived plans did not necessarily include the commission of the act done, when such act is one which would tend, directly or indirectly, to accomplish the common purpose; and it is often convincing evidence of the existence of the combined intent and agreement. (Post, pp. 673, 674.) Cases cited and approved: State v. Ripley, 31 Me., 386; Martin v. State, 89 Ala., 115. 18. EVIDENCE. Withheld is presumed to he against the interest and insistence of the party so withholding it, when. The presumption always is that competent and pertinent evidence within the knowledge and control of a party and withheld hy him is against his interest and insistence. (Post, p. 672.) Cases cited and approved: Dunlap v. Haynes, 4 Heisk., 476; Kirhy v. Tallmadge, 160 U. S., 379; Construction Co. v. B. W. Co., 36 C. C. A., 153. 19. CRIMINAL CONSPIRACY. Merchant countermanding order, for a gift, which tends to lessen and prevent competition is a party to the conspiracy, when. Where an oil company agreed to give and did give a merchant a quantity of coal oil in consideration of his countermanding an order given a competitor for the purchase of oil for the purpose of preventing or lessening competition, the merchant was a party to the conspiracy within the meaning of the anti-trust statute (Acts 1903, ch. 140) prohibiting combinations and agreements tending to lessen competition in the sale of articles. (Post, pp. 663, 667, 674-678.) Acts cited and construed: 1903, ch. 140. Cases cited and approved: Harbison v. Iron Co., 103 Tenn., • 422; Dayton v. Barton, 103 Tenn., 604; State v. Buchanan, 5 Harris & J. (Md.), 517; Aikens v. Wisconsin, 195 U. S., 194.
117 Tenn. 680Nashville, Chattanooga & St. Louis Railway v. Hayes (1906)
1. RAILROADS. Burden rests upon injured employee to show existence of dangerous obstruction and employer’s knowledge thereof, when. In the suit of a railroad brakeman and switchman against his employer, a railroad company, for personal injuries received while switching cars by being struck by a projecting obstruction near the track, when riding on the ladder upon the side of a car in the discharge of his duty, the burden of proof rests on him to show not only the existence of the obstruction, but also that the railroad company had notice thereof, or by the exercise of ordinary care would have obtained knowledge thereof. (Post, pp. 683-691, and especially 689-691.) Cases cited and approved: Railroad v. Lindamood, 111 Tenn., 473; Railroad v. Wagner, 33 Kan., 660. 2. NEGLIGENCE. Not presumed against employer in furnishing appliances, from injury to employee, when. No presumption of negligence on the part of the employer in furnishing appliances to the employee arises from the fact of a personal injury to the employee. (Post, pp. 689, 691.) Case cited and approved: Railroad v. Lindamood, 111 Tenn., 473. 3. SAME. Same. Evidence of obstruction near railroad track not showing negligence of the railroad company, when. Where, in the suit of a railroad brakeman and switchman against his employer, a railroad company, for personal injuries received, while switching cars by being struck by a projecting obstruction near the track, when riding on the ladder upon the side of a car in the discharge of his duty, it does not appear from tlie evidence when or hy whom the obstructing chute was placed there, or how long it had been there, but that, under the circumstances, it could not have been there long, the evidence is insufficient as a matter of law to show negligence on the part of the defendant railroad company. (Post, pp. 683-691.) 4. EMPLOYER AND EMPLOYEE. Damages for injury resulting from employee’s failure to discharge his duty are not recoverable from employer, when. Where an injury results to an employee from his failure to discharge his duty to his employer, as where the employee undertakes with the employer to see to the safety of the premises or appliances about or with which he works, and is injured, the employee cannot recover from the employer the damages resulting from the injury. (Post, p. 693.) Oases cited and approved: Railroad v. Driscoll (Ill.), 52 N. E., 921; Railroad v. Emmert, 83 Va., 640; Peppett v. Railroad, 119 Mich., 640. 5. SAME. Same. Case in judgment. A railroad brakeman and switchman cannot recover damages in a suit against his employer, the railroad company, for personal injuries received while switching ears by being struck by a projecting obstruction near the track, when riding on a ladder upon the side of the car in the discharge of his duty, resulting in his failure to see the obstruction until too close to it to escape injury, where it was his duty to look out for obstructions on the track and to report them to the company’s local agent, whose duty it was to see that the switching tracks were kept clear, and who had instructed the switchmen to report to him any obstructions found, as appears from the plaintiff’s own testimony, because the injury resulted from- the plaintiff’s failure to discharge his duty by looking out for such obstruction. (Post, pp. 683-693.) 6. CONTRIBDTORY NEGLIGENCE, Proximately causing the injury prevents recovery, and it need not be the sole proximate cause. Instruction to contrary is error, when. In a case like that shown in the foregoing headnote, the rule is well settled that the plaintiff, whose negligence in any degree, whether great or small, proximately contributes to the injury received, is precluded from recovering damages. It is not required that his negligence shall he the sole proximate cause, nor that he he equally guilty of negligence with the defendant, to prevent his recovery of damages for the injury. A charge of court instructing the jury differently or to the contrary is reversibly erroneous. (Post, pp. 693-696.) Cases cited and approved: Railroad v. Fain, 12 Lea, 39; Railroad v. Fleming, 14 Lea, 136; Saunders v. Railroad, 99 Tenn., 135; Barr v. Railroad, 105 Tenn., 547. 7. PEREMPTORY INSTRUCTION'S. Motion for peremptory instructions for verdict for defendant without action thereon cannot be reviewed for failure to so instruct. Failure to give peremptory instructions to the jury to return a verdict in favor of the defendant upon his motion therefor is not reviewahle, where the record shows that the motion was made hut fails to show any action of the court thereon, or that it was pressed to a ruling by the court, or that the action of the court thereon was invoked. (Post, pp. 696, 697.) 8. SAME. Same. No inference that motion was overruled, from immediately giving case in general charge to jury, when. ■ The contention that the necessary inference is that the motion for peremptory instructions to the jury to return a verdict in favor of the defendant was overruled by the trial judge, from the fact that, immediately following this motion, he gave the case in a general charge to the jury, cannot he maintained, so as to put the trial judge in error, in the absence of affirmative action on his part. (Post, pp. 696, 697.) 9. SAME. Motion for peremptory instructions for verdict for defendant properly granted is determinative of the case. A motion for peremptory instructions to the jury to return a verdict in favor of the defendant, when properly granted, is determinative of the case in the trial court and also in the supreme court. (Post, p. 697.)
117 Tenn. 698Nashville Railway & Light Co. v. Marlin (1906)
1. BILL OF EXCEPTIONS. Directing extrinsic matter without description, identification, or authentication to he inserted does not make such matter part of the record. A skeleton bill of exceptions directing the evidence, depositions, the charge of the court, special requests, grounds of motion for new trial, and such like to he inserted, without any de- . scription, identification, or authentication hy the trial judge, does not make such extrinsic matter a part of the record. Cases cited and approved: Wynne v. Edwards, 7 Humph., 419; Battier v. State, 114 Tenn., 563. ¡2. SAME. Same. All extrinsic documents must he authenticated hy the trial judge, and properly marked as exhibits. Extraneous matter in parol must he included in the hill of exceptions, and extraneous matter in writing must either he introduced into or appended to the hill of exceptions in such manner as that the authentication of the judge will reach it, or the written documents and instruments may he in the form of exhibits to he inserted in their proper places, according to the directions given therein; hut all of the hill of exceptions, whether in one or more documents, must be present and examined when it is signed hy the trial judge, and the several papers to he copied into it and made a part of the record must he so marked as’exhibits that no mistake in their identity can he made, and it must not he left to the clerk or any other person to determine what constitutes any part of the record, for the trial judge alone can do this. Cases cited and approved: Wynne y. Edwards, 7 Humph., 419; Battier v. State, 114 Tenn., 563. 3. SAME. Same. Same. Extrinsic documents copied into transcript but not properly authenticated and identified will be stricken out by the supreme court, and not considered. When extrinsic matters, which can only be made a part of the record by bill of exceptions, appear in the transcript without proper authentication, they cannot be considered by the Supreme court, but will be stricken out upon motion when prop, erly called to its attention. Case cited and approved: Battier v. State, 114 Tenn., 563. 4'. SAME. Same. Same. Same. Want of authentication and identification of extrinsic matter or documents shown by certified copy of original bill of exceptions. The want of proper authentication and identification of extrinsic matter or documents appearing in the transcript may be shown by a certified copy of the original bill of exceptions as it is on file in the lower court accompanying and filed with the motion to strike out such extraneous matter or documents. Case cited and approved: Battier v. State, 114 Tenn., 563. 5. SAME. Affidavits of counsel are not permissible to determine what constitutes part of record: Affidavits of counsel cannot be permitted to determine what constitutes the record or any part thereof, nor as explanatory of conditions existent in the court below.
117 Tenn. 706Staub v. Hampton (1906)
FROM GRUNDY. Appeal from the Chancery Court of Grundy County.— T. M. McConnell, Chancellor.
117 Tenn. 745American Book Co. v. Shelton (1906)
FROM DAVIDSON. Appeal from the Chancery Court of Davidson County. —John Allison, Chancellor.