119 Tenn.

Volume 119 — Tennessee Reports

33 opinions

119 Tenn. 1St. Louis, Iron Mountain & Southern Railway Co. v. Leazer (1907)
1. VERDICT. Conclusive on facts upon appeal. The verdict of the jury is conclusive, upon appeal, as to all controverted questions of fact. ' {Post, p. 5.) 2. PERSONAL INJURIES OR WRONGFUL DEATH. Action did not pass or survive to any except as provided in statute previous to Acts.1903, ch. 317. Previous to the enactment of the statute (Acts 1903, ch. 317) to prevent the abatement of suits for personal injuries or death from a wrongful act because of the death of the beneficiary, it was the rule, under the then existing statutes, that the right of such action did not pass to any person or survive to any beneficiary, éxcepting those appointed in the statute as entitled to the recovery when the cause of action accrued. (Post, pp. 5-11.) Code cited and construed: Sec. 4025 (S.); sec. 3130 (M. & V.); sec. '2291 (T. & S. and 1858). Case cited and approved: Railroad v. Bean, 94 Tenn., 388, 396. 3. SAME. Same. Statute'to prevent abatement of suit does not apply in suit previously adjudged to be abated, when. The statute (Acts 1903, ch. 317) to prevent the abatement of suits for personal injuries or death from a wrongful act, because of the death of the beneficiary, is not applicable, where, under the previous rule stated in the foregoing headnoté, it was adjudged, upon plea in abatement, in the mother’s pending suit, before the enactment of such statute, that the right of action' or suit had abated on account of the death of the father of the deceased boy, and could not be prosecuted for the benefit of the mother. (Post, pp. 5-12.) Acts cited and construed: Acts 1903, ch. 317. 4. SAME. Same. Same. Party not appealing not entitled to review of action sustaining plea in abatement, when. The ruling of the court below sustaining the defendant’s plea in abatement as shown in the foregoing headnote cannot be reviewed upon the appeal of the defendant alone. (Post, p. 12.) 5. SAME. In action for the damages for the wrongful death, an amendment to recover for loss of services during minority of deceased is not permissible. The mother’s suit as administratrix of her deceased minor son to recover damages for his wrongful death is a suit in the right of the deceased himself, and to recover damages suffered, first, by himself, and, second, the damages resulting to his next of kin, which are adjudged to be the pecuniary value of his life; and in such suit, an amendment seeking to recover damages for the loss of the services of the deceased during his minority was wholly unauthorized. {Post, pp. 12-16.) Code cited and construed: Secs. 4025-4028, 4503, 4504 (S.); secs. 3130-3134, 3503, 3504 (M. & Y.); secs. 2291-2293, 2803, 2804 (T. & S. and 1858). Cases cited and approved: Whaley v. Catlett, 103 Tenn., 341; Love v. Railroad, 108 Tenn., 125; Davidson-Benediet Co. v. Severson, 109 Tenn., 967. 6. SAME. Mother’s right of action for loss of services is limited to injuries not resulting in death of minor child, when. Upon a proper construction of the statute (Shannon’s Code, sec. 4503), giving a right of action to the mother, upon the father’s death, for expenses and actual loss of service resulting from an injury to her minor child, the mother’s right of áction is limited to injuries not resulting in death. {Post, .pp. 9, 10, 15, 16.) Code cited and construed: Secs. 4503-4505 (S.); secs. 3503-3505 (M. & Y.); secs. 2803-2805 (T. & S. and 1,858). Cases cited and approved: Cargle v. Railroad, 7 Lea, 719; Railroad v. Doak, 115 Tenn., 720.
119 Tenn. 17Grier v. Canada (1907)
1. WILLS. Devise of land to be divided among devisee’s bodily heirs at bis death vests in him a life estate only, when. A devise of real estate to testator’s son, and at his death to be equally divided among his bodily heirs as the property of the testator, vests in the son only a life estate. (Post, pp. 22, 24.) 3. SAME. Certified copy of probated will is prima facie evidence of its validity; what may be shown; issue of devisavit vel non is not triable, when. The heir, seeking to establish his title to land in a suit to recover it, may proceed upon a certified copy of the probated will, which, when duly attested, is prima facie evidence of the validity of the will, but it is not conclusive; and while the fact that fraud was committed in drawing or obtaining the will or that it was not formally executed and attested, may be shown, yet it is not admissible in such a suit to try an issue of devismit vel non. (Post, pp. 28-31.) Code cited and construed: Secs. 3929-3931 (S.); secs. 3037-3039 (M. & V.); secs. 2197-2199 (T. & ¡S. and 1858). Acts cited and construed: Acts 1784. (Oct. Ses.), ch. 10, sec. 6. Cases cited and approved: Weatherhead v. Sewell, 9 Humph., 272; Brown v. Brown, 14 Lea, 253. S. SAME. Probate record of holographic will must show what, to be valid as to land; good as to personalty, when. The probate record of a holographic will must show, among other things, that the handwriting of the testator was generally known by his acquaintances and that three credible ' witnesses proved .that the writing and every part of it was in his hand, to be valid and effective as to the land devised. Probate record of proof by two witnesses that they were well acquainted with the testator’s handwriting, and that the signature to the will is in his handwriting, is fatally defective and insufficient to sustain a holographic will of realty, because the statutory requirements do not appear in the record, but it would be good for a will of personalty. {Post, pp. 31, 32.) Code cited and construed: Sec. 3896 (S.); sec. 3004 (M. & V.); sec. 2163 (T. & S. and 1858). 4. SAME. Re-probate supplying defects nineteen years after original probate is prima facie sufficient, when. Where the probate record of a holographic will made in 1886 was insufficient as to realty, but sufficient as to personalty, a re-probate thereof made in 1905, upon motion in an ex parte proceeding without petition or notice, as required for probate in' solemn form, but with all the formalities required to probate a holographic will as to land, is sufficient to make out a ^prima facie case in favor of a beneficiary under the will, since it was an ancillary proceeding to supply formalities that were omitted in a former order rather than, to destroy the original probate, and the burden of proving the invalidity of the will for fraud, accident, or mistake, devolved upon those asserting it. The right to re-probate was not barred by the lapse of time. {Post, pp. 32-34.) 5. ESTOPPEL. By statements and admissions in sworn pleadings in other suits. A party will not be permitted to deny in one proceeding facts which he has admitted or averred in his solemn pleadings under oath in another proceeding. Hence, where defendants had asserted in sworn pleadings in other suits or proceedings that a certain decedent had left a last will and testament, which was duly probated, etc., they are estopped to deny the probate of the will. {Post, pp. 34-37.) Oases cited and approved: Hamilton v. Zimmerman, 5 Sneed, 39; Stephenson v. Walker, 8 Bax., 289; Chilton v. .Scruggs, 5 Lea, 318. 6. SAME. By deposition in judicial proceedings. Where a party has testified to certain facts in a deposition taken in judicial proceedings, he will be estopped from denying such facts in another proceeding. {Post, p. 36.) Cases cited and approved: Cooley v. Steele, 2 Head, 605; Still-man v. Stillman, 7 Bax., 175. 7. INNOCENT PURCHASER. Defense must be made by answer or special plea. The defense of innocent purchaser must be made either by the answer or special plea. (Post, p. 37.) Case cited and approved: Dunham v. Harvey, 111 Tenn., 620. 8. SAME. Refusal to permit plea to be filed at bearing will not be reviewed on appeal. The action of the chancellor in declining to permit the plea of innocent purchaser to be filed after all the evidence had been taken and the case was about to be tried will not be reviewed on appeal. It was a matter in the sound discretion of the chancellor. {Post, p. 37.) 9. HOMESTEAD. Abandoned by removal from the State by a wife cohabiting with another man. Since Acts 1879, ch. 171, the right of homestead is not dependent upon occupancy, and an assigned homestead is not abandoned by removal from the premises, except by permanent removal beyond the limits of the State. Our homestead and exemption laws are for citizens only, and not for nonresidents, and the homestead is abandoned or forfeited when the occupant becomes nonresident. Hence, where one claiming 'a right under assigned homestead deserted her husband and removed to another State, where she cohabited for several years with another man, the homestead was abandoned when she became a nonresident. {Post, pp. 37-42.) Code cited and construed: Sec. 4227 (S.); sec. 3331 (M. & V.); sec. 2474 (T. & S. and 1858). Acts cited and construed: Acts 1879, ch. 171. Cases cited and approved: Prater v. Prater, 87 Tenn., 78; Car-rigan v. Rowell, 96 Tenn., 185; Parris v. Sipes, 99 Tenn., 300; Briscoe v. Vauglm, 103 Tenn., 311; Coile v. Hudgins, 109 Tenn., 220; Freeman v. Freeman, 111 Tenn. 151. 10. SAME. When assigned, is transferable as life estate.. Homestead, when assigned, is transferable as a life estate.’ (Post, p. 40.) Cases cited and approved: Cowan v. Carson, 101 Tenn., 523; Delk v. Yelton, 103 Tenn., 480-; McCrae v. McCrae, 103 Tenn., 721. 11. PRESUMPTION. Of continuance of life, when. •Where a person is shown to be living at a certain time, the presumption of continued life arises, in the absence of proof, as where a husband is shown to be living when he procures a divorce from his wife, he will be presumed, in the absence of proof, to be living, when-she subsequently marries her co-adulterer, and attempts to convey the homestead. (Post, p. 41.) 12. HOMESTEAD. Abandonment of, shown by records in other suits, when. In an action involving title and right to possession of real estate, where defendant claimed under a conveyance of an alleged assigned homestead the record of a divorce suit against defendant’s grantor, showing that she had become a nonresident and had abandoned the homestead before the conveyance is admissible, and so is the record of a suit by defendants against their said grantor alleging her nonresidence. (Post, pp. 41, 42.) 13. EVIDENCE. Part of record is admissible where balance is accounted for, when. Part of a record is competent and admissible, where the certificate of the clerk accounts for the balance of the record. (Post, p. 42.) Cases cited and approved: Russell v. Houston, 115 Tenn., 536.
119 Tenn. 43Humphrey v. Godsey (1907)
1. COURT OF CIVIL APPEALS. Jurisdictional amount is determined by amount actually in controversy upon appeal. The appellate jurisdiction as between the supreme court and the court of civil appeals, when dependent upon the amount involved, is determined by the amount really or actually in controversy in the appellate court, and not by the amount involved in the court below. Acts cited and construed: Acts 1907, ch. 82, sec. 7. 2. SAME. Same. Broad appeal will not give supreme court jurisdiction, if controverted amount is less than the jurisdictional amount. The appellant cannot appeal from that part of the decree of the chancery court which was in his favor, merely for the purpose of giving the supreme court jurisdiction. A broad appeal does not open the whole controversy involved in the chancery court so as to give the supreme court jurisdiction, where the chancery decree eliminated everything in favor of the appellant, except the sum of one hundred and fifty dollars.
119 Tenn. 47State v. Muncie Pulp Co. (1907)
1. STATE BOUNDARIES. Western boundary of Tennessee defined. The -western boundary line of the State of Tennessee is the “middle of the Mississippi river” as it ran in 1763, as declared and fixed by treaties and legislative enactments. (Post, pp. 64, 65, 68, 69, 70, 71, 75, 76, 109.) Statutes, treaties, etc., cited: 3 Jenkinson’s Treaties, 177; 2 Cobb & Haywood’s Compilation, pp. 1, 7-10; 1 Stat., cbs. 6 and 47; 8 Stat., 81, 82. Constitution cited and construed: Art. 1, sec. 31. Cases cited and approved: Iowa v. Illinois, 147 U. S., 2; Louisiana V. Mississippi, 202 U. S:, 41. ¡3. SAME. Same. Congress .has no power to change State boundaries. The western boundary line of the State of Tennessee, at the time of its admission into the union as a State in 1796 (1 Stat., ch. 47), being fixed as the “middle of the Mississippi river” as it ran in 1763, the designation of the eastern boundary line of the State of Arkansas as the “middle of the main channel of the Mississippi river,” made in the act of congress, at the time of its admission into the union as a State in 1836 (Stat., ch. 100), could not have been intended to designate a different boundary line than that of Tennessee as it then existed, because congress had no power to change the boundaries of Tennessee as fixed by it when that State was admitted to the union in 1796. (Post, pp. 66-69.) Constitution of the United States cited and construed: Art. 4, sec. 3. Case cited and approved: Louisiana v. Mississippi, 202 U. S., 40. 3. SAME. Same. Same. Main channel means the larger channel, where there are two or more channels. The words “main channel” used in the designation of the eastern boundary'line of the State of Arkansas as the “middle of the main channel of the Mississippi river” were evidently intended to make the common boundary more definite by designating the larger channel, where there existed two or more channels, on account of the numerous islands to be found in the river. (Post, pp. 68, 69.) 4. STREAMS. Channel and bed of a river mean the same thing, and mean the depression in which the water flows. The channel of a river and the bed of a river ordinarily mean the same thing, and are understood to describe that depression of the earth’s surface in which the waters of the stream are confined and flow in its ordinary stages, unaffected by freshets or droughts. (Post, p. 72.) Cases cited and approved: Branham v. Turnpike Co., 1 Lea, 704; Howard v. Ingersoll, 13 How. (U. S.), 381; Alabama v. Georgia, 23 How. (U. S.), 505; Houghton v. Railroad, 47 Iowa, 370; Bridge Co. v. Dubuque, 55 Iowa, 558; Cessill v. State, 40 Ark., 504; Railroad v. Ramsey, 53 Ark., 314; Stover v. Jack, 60 Pa., 339; Lux v. Haggin, 69 Cal., 417; Larrebee v. Cloverdale, 131 Cal., 96; Benjamin v. River Improvement Co., 42 Mich., 628. 5. INTERNATIONAL LAW. Not to annul agreement of the parties, when. General rules of international law cannot be invoked, where the matter in question has been settled otherwise by the parties in interest, either by agreement, convention,' acquiescence, or long and undisturbed occupancy and possession. (Post, p. 91.) 6. RULES OF PROPERTY. Construction as to the meaning of the “middle of the Mississippi river” has become a rule of property. The construction of the words “middle of the Mississippi river” to mean a line along the middle of the main channel or bed of the river equidistant from the visible, defined, and substantially established banks within which the waters are confined and flow in their natural and ordinary .stages, and not the middle of the channel of commerce, has become a rule of property and should not be disturbed. (Post, pp. 91-93.) 7. NAVIGABLE STREAMS. Right of navigation by both States in a river separating them. Where a navigable river constitutes the boundary line between two States, the middle of the channel separating their respective jurisdictions as defined in the first and tenth headnotes, both are presumed to have the free use of the whole of it for the purposes of commerce. The whole river is of right common to both nations as a public highway. (Post, pp. 93, 94.) Cases cited and approved: The Apollon, 9 Wheat. (U. S.), 362, 371; Handly v. Anthony, 5 Wheat. (U. S.), 374. 8. MISSISSIPPI RIVER. Free navigation secured by treaties, acts of congress, and State constitutions. The free navigation of the Mississippi river by the citizens of the United States was expressly provided for and preserved in the treaty made by the United States with Great Britain in 1783, and again in that made by the United States with Spain in 1795. This right of navigation has been frequently declared by acts of congress, and is asserted in the constitutions of all the States bordering on said river. The right is so well established that no possible apprehension can be entertained that it will be interfered with. (Post, p. 94.) Constitution cited and construed: Art. 1, sec. 29. Numerous acts of congress cited on page 94. 9.- SAME. Same. Free navigation secured by the commerce cla.use of the federal constitution. •The commerce clause of the constitution of the United States, all other things aside, affords ample protection to the right of every citizen to the free navigation of the river, whether the current be in one State or another, without fear of hindrance or burdens imposed by such States. (Post, pp. 94, 95.) 10; STATE BOUNDARIES. Western boundary of Tennessee is a line in the middle of the Mississippi river equidistant from its banks. The western boundary line of the State of Tennessee, declared and fixed by treaties and legislative enactments (as shown in the first headnote) to he the “middle of the Mississippi river,” means a line along the middle of the main channel or bed of the river equidistant from the visible, defined, and substantially established banks within which the waters are confined and flow in their natural and ordinary stages, and does not mean the center of that part of the river which is deepest, and constitutes the channel of commerce. (Post, pp. 69-95.) Acts cited and construed: Acts 1903, ch. 420. . Cases cited and approved: Branham v. Turnpike Co., 1 Lea, 706; Cessill v. State, 40 Ark., 501; Jones v. Soulard, 24 How. (U. S.), 41; School v. Risley, 10'Wall. (U. S.), 91; Missouri v. Kentucky, 11 Wall. (U. S.), 395; St. Louis v. Rutz, 138 U. S.,'226; Nebraska v. Iowa, 143 U. S., 359, 361, 367; Missouri v. Nebraska, 196 U. S., 23; Myers v. Perry, 1 La. Ann., 372; Morgan v. Reading, 3 Smedes & M. (Miss.), 366; Bridge Co. v. Dubuque Co., 55 Iowa, 558.. Cases cited and distinguished: Iowa v. Illinois, 147 U. S., 1; Buttenuth v. Bridge Co., 123 Ill., 535. 11. SAME. Same. Boundary line between Tennessee and Arkansas settled by convention, decision, legislation, and other acts and acquiescence. The boundary line between the States of Tennessee and Arkansas, as fixed and defined in the first and tenth headnotes, has been settled by the duly constituted authorities of said States by judicial decisions, legislation, and other authorized official actions, long acquiescence, the exercise of jurisdiction unchallenged, and other acts amounting to an agreement or convention. The establishment of the boundary line between said States in such manner is binding on them, and others cannot be heard to complain. (Post, pp. 72, 73, 95, 96.) 1 Acts cited and construed: Acts 1903, ch. 420. Cases cited and approved: Cessill v. State, 40 Ark., 501; in-diana v. Kentucky, 136 U. S., 479. 12. NAVIGABLE STREAMS. Tennessee acquired title to soil to the center of the Mississippi river. Tennessee acquired title to all the soil under the water of the Mississippi river to the limits of her jurisdiction, for the reason that the soil under the water of a navigable river, as well as the water, is held by the State for the use and in trust for the public, so long as the river continues to be navigable. (Post, p. 96.) 13. SAME. Grants by the United States on navigable streams are limited by high water mark, and the soil between that and the middle of the river is vested in the State. Grants made by the United States for its lands lying upon navigable streams to private parties are' limited by high water mark, and the soil between that and the river and under the waters is vested in the State in which it lies. The State may dispose of this property at its discretion, subject to the general control of congress over all navigable waters. (Post, pp. 96-99.) Case cited and approved: Hardin v. Jordan, 140 U. S., 371, 372, • and citations. 14. SAME. State grants extend to low water marks only, and the title to the bed of the stream remains in the State. In Tennessee it has been uniformly held that grants for lands lying upon navigable streams extend to ordinary low water mark only, and that the title to the bed of the steam remains in the State. (Post, pp. 99, 100.) Cases cited and approved: Martin v. Nance, 3 Head, 649; Hol-bert v. Edens, 5 Lea, 204; Posey v. James, 7 Lea, 98; Goodwin y. Thompson, 15 Lea, 209; Stockley v. Cissna, 119 Fed., 829; Taylor v. Commonwealth, 102 Va., 759; Holman v. Hodges, 112 Iowa, 714. 15. SAME. Islands formed in navigable streams belong to the State. It is well established law that when the waters recede or land is formed upon the bed of navigable rivers, as in case of islands, tlie property In such land is in the State to be disposed of by it as its authorities may determine and diree't. {Post, pp. 100-103.) Case .cited and approved: Packer v. Bird, 137 U. S., 666-672; Hardin v. Jordan, 140 U. S., 371, 372; Morris v. Brooke (Del.), cited in Mulry v. Norton, 53 Am. Rep. 215, note. 16. SAME. Hand forming in the Mississippi river east of the State’s western boundary belongs to the State, when. The soil under the Mississippi river, east of the western boundary of the State of Tennessee belongs to that State, and whenever the water ceases to flow over it, and it is no longer suitable or required for the purposes of navigation, if not done imperceptibly and in process of accretion, it may be taken in possession, and disposed of by the State as her authorities may see fit. {Post, p. 103.) 17. STREAMS. Change of channel by erosion and accretion. Where the change in the channel of a river is made insensibly, by gradual and imperceptible washing away of one shore and the formation in like manner upon the other shore, it is said to be “by erosion and accretion.” {Post, pp. 103, 124.) 18. SAME. Change of channel by avulsion. Where the change to the channel .of a river is made suddenly and violently, and is visible, and the effect is certain, it is said to be by avulsion. {Post,'pp. 61, 103, 104.) 19. SAME. Effect of alteration of channel by erosion and accretion and by avulsion. Where the boundary line between individuals, as well as States and nations, is marked by a stream, and the location of the stream is altered by erosion and accretion, it continues to be the boundary line; but when the alteration occurs as the result of an avulsion, no change is made, but the limits of private estates or national territory and jurisdiction remain as before. {Post, pp. 104-110, 124.) • Cases cited and approved: Moss v. Gibbs, 10 Heisk., 283; Posey v. James, 7 Lea, 98; Missouri v. Kentucky, 78 TJ. S., 410; Indiana v. Kentucky, 136 TJ. S., 508; Nebraska v. Iowa, 143 TJ. S., 360, and citations; Missouri v. Nebraska, 196 TJ. S., 23; Stockley v. Cissna, 119 Fed., 812; Rees v. McDaniel, 115 Mo., 145; Holbrook0 v. Moore, 4 Neb., 437; Collins v. State, 3 Tex. App., 323; But-tenuth v. Bridge Co., 123 Ill., 546. SO. SAME. Change in the bed of the Mississippi river that was an avulsion, not changing State boundary. The change made in its channel by the Mississippi river in 1876 . at Centennial Cut-Of£ was an avulsion, and the boundary line between the States of Tennessee and Arkansas remained where it was originally fixed, in the middle of the abandoned channel, and the rights of individuals who owned lands lying and abutting upon it remained as before the formation of the new channel, for the reason that the change was visible, accompanied with great and uncontrollable force and violence, and occurred within less than two days, with certain and inevitable ultimate effects, shortening the river nearly twenty miles, occupying nearly two thousand acres in the new bed of the usual width of the river. (Post, pp. 61, 103, 104', 109, 110.) 21. BOUNDARIES. Presumption of permanency. The presumption is in favor of the permanency of boundary lines, and the burden of proof is upon the party averring that the location of a line has been changed by the action of the forces of nature. (Post, pp. 112, 122.) • 22. STREAMS. Evidence insufficient to show accretions. Evidence stated, reviewed, and held not to show accretions to Dean’s Island previous to 1876. (Post, pp. 104-122.) 23. SAME. Filling up of old channel is not by accretion, when. The doctrine of accretions has no application to the filling up of the old channel of a stream, abandoned by the stream for a new one, as the result of an avulsion. (Post, pp. 122-130.) Cases cited and approved: Missouri v. Kentucky, 11 Wall. (U. S.), 395; Indiana v. Kentucky, 136 U. S., 479; Nebraska v. Iowa, 143 II. S., 360; Willey v. Lewis, 28 Wkly. Law Bul., 104 (Ohio); Hughes v. Birney, 107 La., 664; Mulry v. Norton, 100 N. Y., 426. 24. SAME. Land, lost by submergence regained by reliction; land eroded restored by accretion. Land lost by submergence may be regained by reliction, and its disappearance by erosion may be returned by accretion, upon which the ownership temporarily lost will be regained. (Post, pp. 130, 131.) Cases cited and approved: St. Louis v. Rutz, 138 II. S., 226-246; Hardin v. Jordan, 140 U. S., 382; Stockley v. Cissna, 119 Fed., 831; Mulry v. Norton, 100 N. Y., 426; Morris v. Brooke (Del.), cited in Mulry v. Norton, 53 Am. Rep., 215, note; Hughes v. Birney, 107 La., 664. 35. BOUNDARIES. Line between Tennessee and Arkansas established in middle of old channel as in 1823. The boundary line between the States of Tennessee and Arkansas is declared to be a line to be run along the old channel midway between the banks as they existed in 1823, as shown by the Humphreys map reproduced on page 60, as this is the earliest record of the location of the banks, and there is no evidence of their location in 1763. (Post, pp. 109, 110. 131-133.) 36. CHANCERY PLEADING AND PRACTICE. Supreme court may give permission to amend bill upon remandment after overruling plea in abatement. When the plea in abatement to the jurisdiction of the court is heard upon issue and evidence, and is sustained by the chancellor, but is overruled by the supreme court, and the case is remanded for hearing upon answer, the supreme court may direct that, if it is'desired, the bill may be amended so as to make the proper allegations to entitle complainant to recover other lands under the principles settled in the case. (Post, pp. 56-58, 133, 134.)
119 Tenn. 135Stockley v. Cissna (1907)
1. REMOVAL OP CAUSES. By filing certified copy of record in. the federal court, "when. Where the petition, proceedings, and evidence touching the refused application for the removal of a cause from the State court to the federal court were preserved of record by a hill of exceptions, the filing of a certified copy of the record, together with a good and sufficient bond, in the federal court, operates, under the acts of congress and the federal decisions, as a removal of the cause. (Post, pp. 141, 142.) Cases cited and approved: Martin v. Railroad, 151 U. S., 675. 2. SAME. Same. Defendant cannot complain of refusal to grant removal where he effected a removal in another way. The defendant cannot, in the supreme court, complain of the chancellor’s refusal to grant a removal to the federal court, where it appears that the defendant had the full benefit of the removal in the mode stated in the first headnote, and where the federal court remanded the cause hack to the State court. (Post, pp. 141, 142.) 3. SAME. Action of federal court on removal of cause is conclusive on State court. The action of the federal court in remanding a cause removed from the State court is conclusive on the State supreme court. (Post, pp. 142, 143.) 4. CONTINUANCES. Action of trial court not disturbed by supreme court, except for great abuse of discretion. It is the established practice of the supreme court not to interfere with the discretionary action of the trial court on the subject of continuance, unless it appears there has been great abuse of its discretion. (Post, p. 143.) Cases cited and approved: Rhea v. State, 10 Yerg., 258; Todd v. Wiley, 3 Humph., 576; Womack v. State, 6 Lea, 152; Rail.road v. Yoss, 109 Tenn., 722; Fox v. State, 111 Tenn., 158. 5. SAME. Same. Case in judgment. The refusal of a second continuance asked by defendant at the June term, 1905, will not be disturbed by the supreme court, where a plea in abatement was filed in January, 1904, and the replication February, 1904, and the defendant obtained a continuance at December term, 1904, and having failed to take proof under the plea, when refused the second continuance. (Post, pp. 143, 144.) 6. RES ADJUDICATA. Judgment in ejectment is not a bar to an action for forcible entry and detainer. The action of ejectment is a real action involving the legal title, while the action of forcible entry and detainer is a posses-sory action involving the right of possession only, and not the legal title, so that the same issues are not involved in both actions, and, therefore, a judgment in the ejectment suit is not a bar to a forcible entry and detainer action, though the parties and the land involved be the same, and though the judgment in ejectment is conclusive, with certain exceptions. (Post, pp. 144-152.) Code cited and construed: Secs. 4970, 5000, 5001, 5103 (S.); secs. 3953, 3983, 3984, 4085 (M. & V.); secs. 3229, 3252, 3253, 3354 (T. & S. and 1858). Cases cited and approved: Edwards v. McConnel, Cooke, 305; Estill v. Taul, 2 Yerg., 467; White v. Suttle, 1 Swan, 174; Elliott v. Lawless, 6 Heisk., 124; Brewster v. Galloway, 4 Lea, 567; Hubbard v. Godfrey, 100 Tenn., 150; Bank v. Smith, 110 Tenn., 337; Borches v. Arbuckle, 111 Tenn., 498; Peyton v. Smith, 5 Pet. (U. S.), 485; Stoekley v. Cissna, 119 Fed., 812; 56 C. C. A., 324; Railroad v. Tibbs, 112 La., 51; Riverside Co. v. Townsend, 120 Ill., 16; Fish v. Benson, 71 Cal., 429; Swanson v. Smith, 117 Ky„ 116; Fain v. Miles (Ky.), 60 S. W., 939. 7. STATE BOUNDARIES. Line between Tennessee and Arkansas was not changed by new channel, called “Centennial CutOff,” made in 1876. The boundary line between the States of Tennessee and Arkansas was not changed by the new channel, called “Centennial CutOff,” which the Mississippi river suddenly and violently cut for itself in 1876, leaving between the old channel and the new channel a large body of land, called “Centennial Island,” which boundary remained where it was originally fixed,' which is determined to be the middle of the old channel of the said river as it ran in 1823, as shown on the Humphreys’ map, appearing on page 155. (Post, pp. 152-163.) Cases cited and approved: State v. Muncie Pulp Co., 119 Tenn., 47; Nebraska v. Iowa, 143 U. S., 359; Missouri v. Nebraska, 196 U. S., 33; Stockley v. Cissna, 119 Fed., 812, 56 C. C. A., 324. 8. STREAMS. Actual possession of contiguous shore land does not create constructive possession of land formed by avulsion, so as to authorize action of forcible entry and detainer therefor. A riparian owner is not entitled to land forming against his land by an avulsion, and hence constructive possession does not attach to such newly formed land by reason of his actual possession of the contiguous shore land, so as to enable him to maintain an action of forcible entry and detainer for the newly formed land.. (Post, pp. 163-166.) Case cited and approved: Stockley v. Cissna, 119 Fed., 812, 56 C. C. A., 324. 9. AVULSION. Avulsion is none the less so because the old channel does not dry up until ten years elapse. Where a river suddenly makes for itself a new channel, there is no less an avulsion because the old channel does not immediately dry up, and ten years or more elapse before all the water therein disappear. (Post, pp. 165, 166.) 10. RES ADJUDICATA. Adjudication in ejectment tliat grant is void is conclusive in subsequent forcible entry and detainer action, -when. An adjudication in an action of ejectment that a State grant to complainant was void is conclusive between the same parties in a subsequent action of forcible entry and detainer. ■ (Post, pp. 166-170.) Case cited: Stockley v. Cissna, 119 Fed., 813, 56 C. C. A., 324, and citations. 11. FORCIBLE ENTRY AND DETAINER. Cutting timber and grazing stock on part of track will not support this action for other part, when. The fact that complainant, from time to time, cut timber and grazed stock on a certain part of a tract of land held under an instrument describing the whole tract does not' show such actual possession thereof as will extend the constructive possession to the other part, so as to be sufficient to support an action of forcible entry and detainer for that other part, and especially where the user was not shown to be continuous and uninterrupted. (Post, pp. 170, 171.) Cases cited and distinguished: Davidson v. Phillips, 9 Yerg., 93; Brown v. Johnson, 1 Humph., 262; Rutherford v. Franklin, 1 Swan, 322; Hopkins v. Calloway, 3 Sneed, 11; Phillips v. Simpson, 2 Head, 430; Mansfield v. Northcut, 112 Tenn., 536. 12. SAME. Possession of part is in law possession of the whole tract so as to support an action of. The possession of part of a tract of land under an instrument, though merely in the nature of a quitclaim deed, describing the boundaries of the tract, is in law the possession of the whole tract, sufficient to support an action of forcible entry and de-tainer. (Post, pp, 169, 170, 173, 174.) Cases cited and approved: Brown v. Johnson, 1 Humph., 262; Rutherford v. Franklin, 1 Swan, 322; Mansfield v. Northcut, 112 Tenn., 536. JL3. STREAMS. Avulsion does not extinguish, title, for reappearance of land restores title and right to possession. The fact that land is swept away by avulsion does not extinguish the owner’s title, for, when the land reappears above the water, there is a restoration of title and right to possession. (Post, pp. 171-177.) Cases cited and approved: Stoekley v. Cissna, 119 Fed., 813, 56 C. C. A., 324; Mulry v. Norton, 100 N. Y., 426, and citations.
119 Tenn. 178Holder v. State (1907)
1. CIRCUMSTANTIAL EVIDENCE. Sufficient to sustain conviction of murder in the first degree. Circumstantial evidence stated, considered, and field sufficient to exclude every fiypotfiesis fiut tfiat of guilt, and to sustain a conviction of murder in tfie first degree. (Post, pp. 181-209.) 2. CRIMINAL LAW. Motive need not fie proved wfien guilt is clear; motives remove doubts and strengthen tfie case wfien necessary. If tfie proof of guilt fie clear, it is not necessary to prove a motive, in tfie ordinary meaning of tfiat term. If a fiomicide is committed through, tfie promptings of a wicked and depraved heart, it is not essential tfiat the State .should prove grudge, or quarrel, or incitement of cupidity, or jealousy, or other special thing tfiat proximately aroused tfie lethal purpose. Proof of motive strengthens tfie State’s case wfien strength, is needed, and tends to dissipate doubts wfien doubts have been engendered. (Post, pp. 199,'200.) 3. ALIBI. Evidence insufficient to sustain. Evidence stated,# considered, and field insufficient to establish, an alibi, because inherently inconsistent, contradictory, and incredible, and overwhelmed by tfie testimony of tfie guilt of tfie accused. (Post, pp. 203-209.) 4. EVIDENCE. Recognition of a certain horse fiy tfie sound of fiis feet in a lope; npnexpert testimony as to identity. A nonexpert witness may give fiis opinion as to tfie identity of things; and a witness who testifies in a criminal case, tfiat fie is familiar with the sound of a certain horse’s feet when going in a lope over a bridge near his home, from having often seen and heard that horse lope over the bridge, may testify as. to his recognition of the horse from the identity of the footsteps he heard with those of the horse in question. (Post, pp. 209, 210.) Case cited and approved: Railroad v. Hunton, 114 Tenn., 609. 5. SAME. Of previous attempts to kill is admissible to show the intent. In a prosecution for a patricide, evidence tending to show previous attempts by the accused on the life of the deceased and other members of the family is admissible and relevant for the purpose of exhibiting the animus or state of mind of the accused towards the deceased, as indicating hostility or settled purpose to harm or injure the deceased. The said evidence being competent to show the intent, it is not incompetent on the ground that it tends to show the commission of a distinct, and independent crime. (Post, pp. 210-217.) Case cited and approved: Williams v. State, 8 Humph., 585, 593, et seq. 6. SAME. Witness impeached by expression of opinion implying statement of fact clearly in conflict with his testimony. A witness may be impeached by proof of an expression made by him in the form of an opinion implying the statement of a fact clearly in conflict with his testimony; as, where, in a prosecution for a patricide, the mother of the accused testified in his behalf in support of an alibi, and, in answer to a proper question laying grounds for an impeachment, denied that shortly, after the killing, in a conversation with certain parties at a certain place and time, she asked if it could be possible that she had raised a boy that would kill his father, and, in response to a suggestion that perhaps he did not, replied that she would have to admit that he did it, the State was entitled to contradict and impeach, her testimony in support of the alibi by proving in rebuttal that she in fact expressed such opinion. (Post, pp, 217-228.) Cases cited and approved: Scott v. State (Tex. Cr. App.), 93 S. W., 112: Watson v. State (Tex. Cr. App.), 95 S. W., 115, 116; Bar. bee v. State (Tex. Cr. App.), 97 S. W., 1058; State v. Kingsbury, ' 58 Me., 238; Commonwealth v. Wood, 111 Mass., 411; Mayer v. People, 80 N. Y., 377; State v. Baldwin, 36 Kan., 14; Schell v. Plumb, 55 N. Y., 599. Cases cited and distinguished: Saunders v. Railroad, 99 Tenn., 130; Franklin v. Commonwealth, 105 Ky., 237. 7.. BILLS OF EXCEPTIONS. Court’s charge and refusal of continuance cannot be reviewed when not embraced therein. Where the bill of exceptions does not include the charge of the qourt nor the affidavit for a continuance, errors assigned upon the charge and for the trial court’s refusal to grant a continuance cannot be considered or reviewed on a writ of error. (Post, p. 228.)
119 Tenn. 229State ex rel. Bond v. Taylor (1907)
1. TAXATION. County'trustee possesses jurisdiction to reassess or back assess property for taxation, when. A hill alleging that a street railway company’s property was glaringly and inadequately assessed for taxation at much less than its cash value for certain specified years; that the company’s schedule returns were fraudulently incorrect, etc.; and that this, in conjunction with the negligence of the assessors, resulted in relieving a large part of such property from taxation, states a case for the exercise of the county trustee’s jurisdiction in a proceeding before him for the reassessment or hack assessment of defendant’s property for taxation. (Post, pp. 233-246.) Acts cited and construed: Acts 1903, ch. 285, sec. 31, subsecs. 2, 3, and 5. 2. SAME. Mandamus will lie to compel county trustee to take jurisdiction of proceeding for reassessment or hack assessment of property for taxation, when. Where a county trustee possesses jurisdiction of a proceeding for the reassessment or back assessment of property for taxation instituted by a State revenue agent, and declines to take jurisdiction and erroneously refuses to hear such proceeding because of the alleged want of jurisdiction, a writ of manctamms will lie as the proper remedy to compel such county trustee to take jurisdiction of the proceeding and to hear the same, and rendpr some judgment on the merits. (Post, pp. 245-252.) Acts cited and construed: Acts 1903, ch. 258, sec. 38. Cases cited and approved: State, ex rel., V. Hunter, 3 Wash., 92, and citations; Richardson v. Farrar, 88 Va., 760, 766-770; State, ex rel., v. Judge, 34 La. Ann., 1177; State, ex rel., v. Ellis, 41 La. Ann., 41. 3. SAME. Railroad commissioners are ex officio State tax assessors. The hoard of railroad commissioners created by Acts 1897, ch. 10, became also a board of State tax assessors ex officio under a prior statute (Acts 1897, ch. 5, sec. 1) providing for a board of State tax assessors to be appointed by the governor, in case an act should not be passed at the same session of the legislature creating a board of railroad commissioners, and, in case such act should be passed, then that the duties prescribed in said act contained in said chapter 5 should be devolved upon such railroad commissioners. {Post, pp. 252, 253.) Acts cited and construed: Acts 1897, ch. 5, sec. 1; ch. 10. 4. STATUTES. Act not purporting to amend a former law need not recite its title or substance. The statute contained in Acts 1905, ch. 513, providing for the just and equitable assessment of interurban railroad and street railroad property for State and municipal taxation, and for the collection of taxes assessed and imposed thereon, etc., is an independent act complete itself, and not purporting to be amen-datory of Acts, 1897, ch. 5. If the act is amendatory at all, it is only an implied amendment, "and its failure to recite the title or substance of the said act of 1897 does not invalidate it. {Post, pp. 253, 254.) Acts cited and construed: Acts 1897, ch. 5; Acts 1905, ch. 513. Constitution cited and construed: Art. 2, sec. 17. Cases cited and approved: Poe v. State, 85 Tenn., 495; Railroad v. Crider, 91 Tenn., 506, 507; State v. Yardley, 95 Tenn., 558. 5,. SAME. Act for taxation of interurban and street railroads ex- • tending beyond the city limits is not unconstitutional as class legislation, when. • Acts 1905, ch. 513, providing for the just and equitable assessment of' interurban railroad and street railroad property in a particular manner for State and municipal taxation, and for the collection of taxes assessed and imposed thereon, applies only to interurban railroad lines and street railroad lines extending beyond tbe boundaries of a single city, whether they run to any other city or not; and so construed is not unconstitutional as an improper classification of property for taxation. (Post, pp. 254-256.) Acts cited and construed: Acts 1897, ch. 5, sec. 7; Acts 1903, 258, secs. 22, 24; Acts 1905, ch. 513. Constitution cited and construed: . Art. 11, sec. 8. Cases cited and approved: Franklin Co. v. Railroad, 12 Lea, 521, 534, 542. 6. SAME. Subject in body covered by tbe title; case in judgment. Acts 1905, ch. 513, entitled “An act to provide for the just and equitable assessment of interurban railroad and street railroad property for State and municipal taxation, and for the collection of taxes assessed and imposed thereon,” and in section 3 declaring that every person or corporation operating interurban and street railroad properties, including electric light and power properties, when? owned and operated in conjunction with street railroad properties, shall file a specified schedule for taxation of the same under such act, does not introduce and embrace in its body a new subject not covered by the title, because the provision of said section applies to interurban railroad • or street railroads owning and operating electric plants for the sale of surplus electricity generated for the operation of the railroad and not to separate electric light plants owned by railroads. (Post, pp. 242, 256-263.) Acts cited and construed: Acts 1903, ch. 258, secs. 22, 24; Acts 1903, ch. 406, sec. 1; Acts 1905, ch. 513, sec. 3. Constitution cited and construed: Art. 2, sec. 17; art. 11, sec. 8. 7. SAME. A separable subject in the body not embraced in the title may be eliminated without impairing the rest of the act, when. A provision in the body of the act not embraced in its title will not invalidate the residue thereof, where such provision is merely incidental and may be eliminated without impairing the integrity of the act. (.Post, pp. 256, 257, 260.) Acts cited and construed: Acts 1905, ch. 513, secs. 3, 18. Constitution cited and construed: Art. 2, sec. 17. Cases cited and approved: State v. Wilson, 12 Lea, 246, 254; State, ex rel., v. Trewhitt, 113 Tenn., 561. 8. SAME. Provisionas to street railroads construed to apply to interurban railroads also, when. While section 18 of Acts 1905, ch. 513, speaks of street railroads only, yet it is clear that construing the whole act together it was intended by the legislature in this section to cover, not only street railroads, but interurban railroads as well. (Post, p. 257.) 9. MAUD AMU S. Peremptory writ will issue upon the overruling" of a demurrer, when there is no valid defense. Where, in a mandamus proceeding to compel a county trustee to hear and determine an application for the back assessment and reassessment of street railway property, the defendant’s demurrer was overruled on appeal, and it appeared that no valid defense could be made, a peremptory writ of mandamus will be awarded without leave to answer. (Post, pp. 258, 259, 264, 276, 277.) 10. TAXATION. Action of board of equalization is not final as against reassessment before county trustee; when. Under the assessment laws of 1901 and 1903, neither the action of the county board of equalizers nor that of the State board of equalization was final or conclusive, in the sense that it prevented a further back assessment or reassessment, for taxation, of property inadequately assessed or entirely omitted from assessment. (Post, pp. 266-277.) Acts cited and construed: Acts 1901, ch. 174, secs. 33, 38; Acts 1903, ch. 258, secs. 13-19, 21-26, 31, 33, 38, subsecs. 4, 10' 11; Aejs 1905, ch. 513.
119 Tenn. 278Memphis Street Railway Co. v. Byrne (1907)
1. CONSTITUTIONAL LAW. Provision as to the oneness of the subject to be expressed in the title is mandatory. The constitutional provision (art. 2, sec. 17) that “no bill shall become a law which embraces more than one subject, that subject to be expressed in the title,” is mandatory. (Post, pp. 286, 287.) Case cited and approved: Cannon v. Mathes, 8 Heisk., 519. 3. SAME. Object of provision as'to the oneness of the subject to be expressed in the title; liberal construction. The object of the constitutional requirement (art. 2, sec. 17) as to. the oneness of the subject to be expressed in the title of each bill is to give notice of the nature of the proposed legislation and to prevent surprise and fraud in the enactment of laws, and to prevent improper and unlawful combinations between the members of the general assembly, resulting in the passing of statutes having no natural connection. However, this provision is to be liberally construed so as not to unnecessarily embarrass legislation. (Post, pp. 287, 288.) Cases cited and approved: Cannon v. Mathes, 8 Heisk., 519; Luehrman v. Taxing District, 2 Lea, 428; Morrell v. Pickle, 3 Lea, 81; Truss v. State, 13 Lea, 312; Prazier v. Railroad, 88 Tenn., 158. 3. SAME. A “general title” of an act defined. A “general title” to an act is one which is broad and comprehensive, and covers all legislation germane to the .general subject stated. The title may cover more than the body, but it must not cover less. It need not index the details of the act nor give a synopsis thereof. (Post, pp. 288-291.) Cases cited and approved: Cannon v. Mathes, 8 Heisk., 519; State v. Yardley, 95 Tenn., 555; State, ex rel., v. Brewing Co., 104 Tenn., 718. 4. SAME. A “restrictive title” of an act defined. A “restrictive title” to an act is one wliere a particular part or branch, of a subject is carved out and selected as the subject of the legislation, and under such a title, the body of the act must be confined to the particular subject expressed in the limited title. (Post, pp. 289-291.) Cases cited and approved: Hyman v. State, 87 Tenn., 109, 112, 113; State v. Bradt, 103 Tenn., 591; State, ex rel., v. Brewing Co., 104 Tenn., 718. 5. SAME. Rules as to the oneness of the subject to be expressed in the title apply to amendatory statutes. The rules as to the oneness of the subject of legislation to be expressed in the title apply to amendatory statutes. Such a statute incorporates itself with the original law, and the two become one statute, as fully and completely as if enacted at one time in one bill, and the matter of the amendment must not only be germane to the body of the original act, in order to avoid violating the one subject mandate of the constitution, but, in the absence of an enlargement of the title of the latter act, it must come, within the title of the original statute and be germane to the subject there expressed, in order to comply with the other mandate that the subject be expressed in the . title. If it be otherwise in either particular, it is void. (Post, p. 291.) Cases cited and approved: Hyman v. State, 87 Tenn., 109; Good-bar v. Memphis, 113 Tenn., 23. 6. SAME. Rule favoring the construction to sustain the statute applies to the title. The rule of construction that every intendment and presumption is in favor of the constitutionality of a statute, and that every doubt must be solved so as to sustain it, and where it is subject to two constructions, that which will sustain its constitutionality must be adopted, is applicable in .the interpretation of titles. (Post, pp. 291, 292.) Cases cited and approved: Manufacturing Co. v. Falls, 90 Tenn., 466; State, ex rel., v. Brewing Co., 104 Tenn., 718. 7. STATUTES. Preamble considered in ascertaining the intention of the legislature. The preamble of a statute, while not a part of it and not con. trolling, may be considered in connection with the condition of public affairs, contemporary history, and other statutes in re. lation to the same subject-matter, in ascertaining and determining the intention of the legislature. (Post, p. 297.) Acts cited and construed: Acts 1895, ch. 76. Case cited and approved: McElwee v. McElwee, 97 Tenn., 658. 8. SAME. Amendment of statute creating court of chancery appeals so as to create the court of civil appeals. Acts 1895, ch. 76, creating the court of chancery appeals and defining its jurisdiction, and Acts 1907, ch. 82, amending the former act so as to change the name of the court to that of the court of civil appeals and to increase its jurisdiction, relate to-but a single subject, are germane, and the latter act is a proper amendment of the former. Both acts have but one general object or purpose, one single subject, however multitudinous may be the means or instrumentalities provided for effecting that purpose. (Post, pp. 292-300, and especially 299, 300.) Acts cited and construed: Acts 1895, ch. 76; Acts 1907, ch. 82. Cases cited and approved: Cannon v. Mathes, 8 Heisk., 504; Morrell v. Fickle, 3 Lea, 79; Frazier v. Railroad, 88 Tenn., 157; State v. Brown, 103 Tenn., 449; State v. Hamby, 114 Tenn., 364. 9. SAME. Object and purpose of an act is the same as the subject thereof. The object and purpose of an act, as a general thing, is the subject of it, in the sense of the mandate of the constitution (art. 2, sec. 17), as to the subject of legislative bills. (Post, p. 300.) 10. SAME. Same. Subject of act creating court of chancery appeals covers subject of the amendatory act creating the court of civil appeals. The subject expressed in the title of Acts 1895, ch. 76, creating the court of chancery appeals, is sufficiently broad and comprehensive to cover the common object and purpose of itself and of Acts 1907, ch. 82, amending the former so as to create the court of civil appeals. {Post, pp. 300-310.) Acts cited and construed: Acts 1895, ch. 76; Acts 1907, ch. 82. Cases cited and approved: Cannon v. Mathes, 8 Heisk., 504, 519; Morrell v. Pickle, 3 Lea, 79; Jackson v. Nimmo, 3 Lea, 597; Truss v. State, 13 Lea, 312; Ryan v. Terminal Co., 102 Tenn., 127; State v. Brown, 103 Tenn., 449. 11. SAME. Name or style of a court does not limit or confine its object or jurisdiction. The name or style of a court does not limit the object of the court or the jurisdiction to be conferred upon it. There is a broad distinction between the purpose to create a court and the jurisdiction to be conferred upon that court, and the two must not be confused. {Post, pp. 301, 311.) Case cited and approved: Jackson v. Nimmo, S Lea, 597. 12. SAME. Acts 1907, ch. 82, amending Acts 1895, ch. 76, does not depend upon title of original act, but upon its own title. The validity of Acts 1907, ch. 82, amending Acts 1895, ch. 76, which created the court of chancery appeals, by increasing the size and jurisdiction of such court and changing its name, does not depend upon the scope of the title of the original act, but upon its own title. (Post, p. 307.) 13. SAME. Restrictive title of original act may be amended and enlarged by title of amendatory act. While a general title covering one entire subject cannot be enlarged by an amendatory act so as to include another subject or additional matter, because thereby two subjects would be introduced in the body of the act, nevertheless, a restrictive title may be enlarged by tbe title of an amendatory act, so as to allow legislation germane to tbe body of tbe original act. If tbe title of the original act could have been broad enough to cover the matter1 of tbe amendment, tbe title of the amendatory act may so amend it, on tbe principle that whatever could have been done originally can be done by amendment. (Post, pp. 307-310.) Cases cited and approved: Hyman v. State, 87 Tenn., 109; State v. Algood, 87 Tenn., 163; Goodbar v. Memphis, 113 Tenn., 35; Galloway v. Memphis, 116 Tenn., 747. 14. SAME. Amendment contained m Acts 1907, ch. 82, as to court of chancery appeals is properly expressed in its title. Tbe subject of tbe amendment contained in Acts 1907, ch., 82, amending Acts 1895, ch. 76, which created tbe court of chan.cery appeals, so as to increase tbe number of judges of tbe court, to change its name, and to increase its jurisdiction, and further limit tbe jurisdiction of tbe supreme court, was properly expressed in tbe title of tbe amendatory act. (Post, p. 310.) 15. SAME. Acts 1907, ch. 82, is amendatory as to court of chancery appeals, and does not create a new court. While Acts 19 07-, ch. 82, changes tbe name of tbe court of chancery appeals, increases its judicial force, increases its jurisdiction and powers, and provides for their exercise in a manner which that court could not exercise under tbe act creating it, still said act is not .an independent and complete scheme of legislation, and does not establish a new court. (Post, pp. 311-315.) 16. SAME. Implied repeals are not favored. Acts 1907, ch. 82, is amendatory as to court of chancery appeals, created by Acts 1895, ch. 76, and is not in irreconcilable conflict with the said prior act, and does not repeal it by implication. (Post, pp. 314-317.) Cases cited and approved: Frazier v. Railroad, 88 Tenn., 163; Fisher v. Baldridge, 91 Tenn., 418; Blaufield v. State, 103 Tenn., 693; McCampbell v. State, 116 Tenn., 107. Case cited and distinguished: Malone v. Williams, 118 Tenn., ■ 390. 17. SUPREME COURT. Jurisdiction and powers under the constitution. The supreme court, established and vested with its jurisdiction and powers by the constitution, not to he interfered with by the other branches of the government, is the highest judicial tribunal in the State. Its adjudications are final and conclusive upon all questions determined by it, save those reserved to the supreme court of the United States for review by it. {.Post, p. 320.) Cases cited and approved: Miller v. Conlee, 5 Sneed, 432; Dodds v. Duncan, 12 Lea, 731; State v. Gannaway, 16 Lea, 124. 18. SAME. Same. Jurisdiction, is appellate only with power to enforce that jurisdiction. The jurisdiction of the supreme court is appellate only, with the power to enforce that jurisdiction. {Post, p. '320.) Constitution cited and construed: Art. 6, sec. 2. Cases cited and approved: State v. Bant, 5 Sneed, 673; Memphis v. Halsey, 12 Heist., 213; State v. Gannaway, 16 Lea, 124. 19. SAME. Supreme court’s ultimate revisory power cannot be unreasonably interfered with. The legislature may, by the establishment of courts of intermediate appellate jurisdiction, or other appropriate legislation, limit and restrict the right of litigants to resort to the supreme court of the State, and regulate the mode of doing so, but not so as to interfere unreasonably with, or to embarrass, its ultimate revisory powers; and it is always for the supreme court to decide when its constitutional jurisdiction is • encroached upon. {Post, pp. 320, 321.) Cases cited and approved: Miller v. Conlee, 5 Sneed, 432; State v. Bank, 5 Sneed, 573; .Ward v. Thomas, 2 Cold., 565; Newman v. Scott Co., 1 Heisk., 787; Hundhausen v. Insurance Co., 5 Heisk., 704; Chestnut v. McBride, 6 Bax., 95; McElwee v. Me-Blwee, 97 Tenn., 657; Chattanooga v. Keith, 115 Tenn., 589. 50. COURT OB CIVIL APPEALS. Appellate jurisdiction defined. The primary appellate jurisdiction of the court of civil appeals embraces all cases brought up from courts of equity and chancery courts, involving not more than one thousand dollars, and. all cases brought up from the circuit and common law courts, except cases involving constitutional questions, election contests, and State revenue and ejectment suits. (Post, pp. 317-333.) Acts cited and construed: Acts 1907, ch. 82, sec. 7. 51. SAME. Same. Appellate jurisdiction in supreme court in case involving; constitutionality of statute creating court of civil appeals. When the constitutionality of the statute creating the court of civil appeals is involved in an appeal that would otherwise lie to that court, the appeal may be taken directly to the supreme court, and it may there be tried and finally determined. (Post, pp. 317, 318, 334-339.)
119 Tenn. 340Rogers v. Ayers (1907)
1. EXEMPTION FROM DEBT. Removal of property from State operates as selection of it as exempt, when. A debtor’s removal of his property from this State to another State for the purpose of avoiding the payment of a debt and his failure to turn it over under an execution in place of the property levied on within this State operates as a selection of the removed property as his exempt property. Cases cited and approved: .Robinson v. Myers, 3 Dana (Ky.), 441, 442; Loan & Trust Co. v. Crabb, 45 Fla., 306. 2. SAME. Right to select property levied on as exempt by substituting other property, when.. When property levied on belongs to a class in which there is a certain number exempt from levy for debt, the owner is entitled to-select his exempt-property from the property levied on, by substituting other property of the same kind owned by him. (Post, p. 346.) Case cited and approved: Pyett v. Rhea, 6 Heisk., 137. 3. WRITTEN FINDINGS OF FACT. Additional findings requested after circuit judge makes written findings under request. Where tie circuit judge trying a.ease without a jury makes a written finding of facts under a request therefor, a party may, after such finding is made, properly request certain additional findings to he made. {Post, pp. 342, 343, 34'5, 348.) Case cited and approved: Hinton v. Insurance Co., 110 Tenn., 113. ■ 4. SAME. Same. Evidence reviewed by supreme court where request for additional findings is made and refused. Where proper requests for additional written findings of fact are made after a written finding of tacts is made, under request therefor, by the circuit judge trying a case without a jury, and improperly refused, the supreme court' may review the evidence at large, when other material facts are found in the' record not included in the findings made. (Post, p. 348.) Case cited and approved: Hinton v. Insurance Co., 110 Tenn., 129.
119 Tenn. 349Bryan v. Norfolk & Western Railway Co. (1907)
.1. ATTACHMENT. Motion to quash, for apparent defect; plea in abatement for defect not apparent. Where a defect appears on the face of the attachment, it is not necessary that the legal question should he raised by a plea in abatement; hut in such a case the proper practice is by a motion to quash. The plea in abatement becomes necessary only where the particulár defect is not apparent on the face of the record. (Post, pp. 353, 354.) Code cited and construed: Sec; 5236 (S.); sec. 4217 (M. & Y.); sec. 3476 (T. & S. and 1858). Cases cited and approved: Parker v. Porter, 4 Yerg., 81; Bank v. Fitzpatrick, 4 Humph., 311; Bennett v. Avant, 2 Sneed, 162. 2. SAME. Motion to quash, for apparent defects operates as special appearance only, and not as a general appearance. A motion to quash an attachment for apparent defects made for the purpose of challenging the jurisdiction of the court operates as a special appearance, and not as a general appearance. (Post, pp. 354, 355.) Case cited and approved: Lumber Co. v. Lieberman, 106 Tenn., 153. 3. SAME. Same. Motion to quash, for failure of affidavit to aver removal of property from the State of the common residence of the parties to be fraudulent. In a suit by original attachment instituted in our courts by a nonresident against a nonresident, both parties being residents of the same State, to recover damages for a wrongful death, a motion to dismiss or quash the attachment, on the ground that the affidavit therefor did not aver that defendant’s property had been fraudulently removed to this State to evade the process of law in the State of their common residence, does not operate as an appearance. {Post, pp. 352, 353, 354.) 4. SAME. Filing1 petition to remove cause to federal court, and withdrawing same does not operate as a general appearance. The defendant, having the acknowledged right to make a special appearance for the purpose of filing a 'petition for the removal of the cause to the federal court, might properly ■ appear and withdraw that petition without being charged with a general appearance. {Post, p. 356.) Cases cited and approved: Freidlander v. Pollock, 5 Cold., 491; Railroad v. Brow, 164 U. S., 271. 5. SAME. Quashing original attachment operates as dismissal of suit. There is no error in dismissing a suit by original attachment if the attachment is properly quashed, because the effect of quashing the. original attachment is to deprive the court of any jurisdiction over the person of the defendant, the inevitable consequence of which is the dismissal of the suit. {Post, pp. 356, 357.) Case cited and approved: Harris v. Taylor, 3 Sneed, 539. 6. SAME. Quashing ancillary attachment does not operate as dismissal of suit. The rule in the last headnote is not applicable in the case of an ancillary attachment, for the reason that such attachment is not the leading process; it does not bring the defendant into court; its only office is to hold the property attached under it for the satisfaction of the plaintiff’s demand, and quashing the same does not abate the suit. {Post, pp. 356, 357.) Cases cited and approved: Robb v. Parker, 4' Heisk., 59; Tem-pleton v. Mason, 107 Tenn., 631. 7. APPEAL. Review of error involving jurisdiction without assignment of error, when. Though errors may not be assigned in the supreme court by the successful party, the court, of its motion, will review a question arising on the jurisdiction of the trial court. {Post, pp. 357, 358.) 8. ATTACHMENT. One suing for a tort is a creditor in sense of statute allowing attachment by a nonresident against a nonresident, when. The statute (Shannon’s Code, section 5212), requiring as a prerequisite to an attachment that a nonresident creditor shall swear that the nonresident debtor’s property has been fraudulently removed from the State of their common domicile or residence to this State to evade the process of law in their State, embraces and comprehends actions by nonresidents who are seeking to impound property in this State for the satisfaction of damages claimed for a tort, and the omission of an averment . in the affidavit that the property sought to be attached was removed to this State to evade the process of the law in the State of their domicile is fatal to the validity of the attachment.' {Post, PP..352, 353, 358-363.) Code cited and construed: Secs. 3143, 5211, 5212 (S.); secs. 2424, 4192, 4193 (M. & V.); secs. 1759, 3455 (T. & S. and 1858.); sec. 3455a (T. & S.). Acts cited and construed: Acts 1715, ch. 48, sec. 9; Acts 1801, ch. 25, sec. 2; Acts 1870-71, ch. 122. Cases cited and approved: Williams v. Conrad, 11 Humph., 412, 418; Patrick v. Ford, and Farnsworth v. Bell, 5 Sneed, 532; Yance v. Smith, 2 Heisk, 343, 350; Merchant v. Preston, 1 Lea, 284; Parker v. Savage, 6 Lea, 408; Taylor v. Badoux, 92 Tenn., 251; Sanders v. Logue, 84 Tenn., 364. Case cited and disapproved: Langford v. Fly, 7 Humph., 585.
119 Tenn. 364Patton v. Continental Casualty Co. (1907)
1. INSURANCE COMPANIES. Action by nonresident against a. nonresident, casualty company, by service of process. A nonresident of tbis State may prosecute a suit in our courts against a nonresident casualty company, lawfully doing business bere, on a policy written outside of tbis State, tbougb tbe accident and death of tbe insured ''-both occurred in' another State, if proper service of process is made bere. (Post, pp. 366-375.) Cases cited and approved: State, ex rel., v. Telephone & Telegraph Co., 114 Tenn., 194, 200; Whitlow v. Railroad, 114 Tenn., 344; Johnston v. Insurance Co., 132 Mass., 432; Abbeville, etc.. Co. v. Western, etc., Co., 85 Am. St. Rep., 922, and citations on page 372; State v. Land Co., 106 La., 621. 2. SAME. Acknowledgment of service of process against foreign life insurance company is as binding as actual service thereof. Under a statute (Shannon’s Code, sec. 3292, subsec. 3) requiring every foreign life insurance company doing business in this' State to appoint tbe insurance commissioner its attorney, upon whom legal process may be served, and providing that service upon such officer by tbe proper officer of tbe county in which tbe commissioner may have bis office shall be deemed a sufficient service on tbe insurance company, an acceptance or acknowledgment of service of process by tbe insurance commissioner is sufficient. to bring tbe company before tbe court. (Post, pp. 372-374.) Code cited and construed: See. 3292, subsec. 3 (S.). •3. SAME. Process in suit of nonresident against nonresident insurance company may tie served on insurance commissioner until power is properly revoked. Under a statute (Shannon’s Code, see. 3292, subsec. 3) providing for the appointment of the insurance commissioner to be served with process against foreign insurance companies, and providing “that the authority thereof shall continue in force, irrevocably, as long as any liability of the company remains outstanding in this State,” the liability of the insurance company is not limited to suits on contracts or obligations arising in this State, so long as the power remains unrevoked, though it might be revoked, if the insurance company had no obligations outstanding in this State. (Post, pp. 372-374.) Code cited and construed: Sec. 3292, subsec. 3. 4. SAME. Policy does not lapse where premium is deposited according to agreement, but payment is refused by depositary after death of insured; premium deducted. "Where, in accordance with the agreement as to the method of payment, the premiums were placed with the railroad company for which the insured worked, and were properly there at the time of the insured’s death, and when the insurance company made demand under the agreement, but the railroad refused payment on the ground that the deceased insured was no longer in its service, though it had the money in its hands, the policy did n.ot lapse, and the insurance company could claim only a deduction of the amount of the current premium. (Post, pp. 366, 367, 375.)
119 Tenn. 376State ex rel. Gouge v. Burrow (1907)
1. CONSTITUTIONAL LAW. ■ Provision to be construed as mandatory, unless contrary conclusively appears. Constitutional provisions aré presumptively mandatory, and no provision shall be construed otherwise, unless the intention that it shall he so construed unmistakably and conclusively appears upon its face. (Post, pp. 381-388.) Constitution cited, and construed: Art. 2, secs: 17-21. Cases cited and approved: Cannon v. Mathes, 8 Heist., 516; Morrell v. Fickle, 3 Lea, 79; State v. McCann, 4' Lea, 1; Manufacturing Co. v. Falls, 90 Tenn., 482; State v. Yardley, 95 Tenn., 552; Telegraph Co. v. Nashville, 118 Tenn., 1, and cases from other States to he found on pages 382 and 388. 3. SAME. Same. Provision as to style of enacting clause of laws is mandatory. The constitutional provision that “The style of the laws of this State shall he, “Be it enacted by the general assembly of the State of Tennessee,” is mandatory, and must he complied with. The word “shall” as here used is ' equivalent to the word “must.” (Post, p. 388.) Constitution cited and construed: Art. 2, sec. 20. S. SAME. Enacting clause styled, “Be it enacted by the general assembly of Tennessee,” omitting the words “the State of” before “Tennessee” complies with the constitution. A statute (Acts 1907, ch. 17) whose enacting clause is styled, “Be it enacted by the general assembly of Tennessee,” complies with the mandate of the constitution (art. 2, sec. 20) requiring the style of the laws to be, “Be it enacted by the general assembly of the State of Tennessee.” The omission of the words “the State of” does not change the legal meaning, as. they are but the expression of a legal fact which exists without their use in this provision. Acts cited and construed: Acts 1907, ch. 17. Constitution cited and construed: Art. 2, sec. 20. Cases cited and approved: Swan V; Buck, 40 Miss., 268; Amusement Co. v. Traction Co. (C. C.), 139 Fed., 358. Cases cited and distinguished: People v. Dettenthaler, 118 Mich., 595; Sjoberg v. Association, 73 Minn., 203; Seat of Government Case, 1 Wash. T., 115; State v. Rogers, 10 Nev., 250; May v. Rice, 91 Ind., 546.
119 Tenn. 395McMinn County v. Allen (1907)
PROM McMINN. Appeal from the Chancery Court of McMinn County. —T. M. McConnell, Chancellor.
119 Tenn. 401Norman v. Southern Railway Co. (1907)
1. RAILROADS. Not liable for death of switchman, for failure of cars to uncouple, on the ground of negligence, when. A railroad company is not liable, on the ground of negligence, in damages for the death of a switchman killed while employed in the yards for the distribution of freight cars by being thrown from a freight car by a jerk, caused by the conductor’s inability to uncouple the cars at the proper moment, on account of a broken link in the coupling pin, a defect not communicated to the deceased, where the failure to uncouple was a very common occurrence well known to the deceased. {Post, pp. 406-410.) 2. SAME. Same. Conductor’s failure to notify switchman of defective coupling chain is not negligence, when. Where a freight car, equipped with a defective coupling pin chain, was nevertheless one which, in the ordinary course of business, deceased as switchman was required to assist in distributing, it was not incumbent on the conductor to notify the deceased of the defect before attempting to uncouple the' car, so that deceased could have protected himself from a sudden jerk of the car, due to the conductor’s inability to uncouple the car at once with the lever, especially where the failure to uncouple was a very common occurrence well known to the deceased. {Post, pp. 410, 411. 3. MASTER AND SERVANT. Rule as to safe place and safe-appliances does not apply, when. The general rule that the master must furnish a safe place and safe appliances does not apply, when the very work the servants are employed to do consists in making a dangerous place safe, or in constantly changing the character of the place for safety as the work progresses. (Post, pp. 411, 412.) Cases cited and approved: Heald v. Wallace, 109 Tenn., 364;-Smith v. Coal & Iron Co., 115 Tenn., 543; Railroad v. Hen-nessey, 96 Fed., 713, 38 C. C. A., 307. 4. SAME. Master is not required, to warn servantsjof transitory danger likely to happen at any time, when. A master is not required to warn his servants of every transitory risk, when the only thing the servants do not know is the precise vtime when the danger will supervene, nor when the actual danger which causes the injury is due to a transitory occurrence-of such a nature that the injured servant knows it will probably happen from time to time. (Post, pp. 411, 412.) 5. RAILROADS. Switchman for distribution of defective cars, assumes the risks incident to his duties. A railroad switchman employed in the yards, and charged with, the duty of distributing defective cars for repairs, which, by the-very nature of his occupation, he must know, or have reason to-know, are unsafe and dangerous, he voluntarily assumes the risks and hazards which are incident to the duty he has undertaken to perform. (Post, pp. 413, 414.) Cases cited and approved: Railroad v. Hennessey, 96 Fed., 713„ 38 C. C. A., 307; Railroad v. Behymer, 189 U. S., 468. JS. SAME. Same. And it is immaterial that a car is not marked, defective by the inspector, when. Where it was the duty of a railroad switchman to handle a defective car, whatever its condition, at the time he was killed by being thrown from the car by a jerk resulting from the failure; of tlie car to uncouple when expected, where lie also knew that, whether it was defective or not, it might not uncouple, and in that case he might expect the jerk, it was immaterial whether the car had been marked by the inspector for the defective coupling pin chain attached thereto or not. (Post, p. 414.) 7. SAME. Violation of rule By conductor tending to prevent accident cannot be complained of by injured switchman, when. In an action of damages for the death of a railroad switchman caused by a jerk of the car as a result of the conductor’s ina-ahility to uncouple the car, because the coupling pin chain was broken, it is immaterial that the conductor, in attempting to uncouple the car, violated a rule of the railroad company prohibiting employees from going between the cars when in motion, and directing that, if anything connected with the coupling apparatus was defective, the employee should not attempt to make the coupling, hut should make report of the defect. The conductor’s violation of the rule could not have contributed in any way to the death of the switchman, hut, on the contrary, must have tended to prevent the accident. (Post, p. 417.) 8. SAME. Declaration not stating a cause of action for the violation of the federal safety appliance act. Where the declaration for the death of a railroad switchman resulting from a defective coupling pin chain on a freight car a vers only incidentally tliat defendant was a common carrier operating numerous lines of railroad “running to divers places and points in and beyond the State of Tennessee;” hut not even averring that the particular car alleged to he- defective was being used in interstate traffic, it does not state a cause of action for the violation of the federal safety appliance act prohibiting railroads from using cars in interstate traffic not equipped with automatic' couplers obviating the necessity of going between the cars, and providing that there shall be no assumption of risk by any employee injured by going between the cars not equipped according to the act. (Post, pp. 417-420.) Act of Congress cited and construed: Act March 2, 1893, eft. 196. Cases cited and distinguished: United States v. Railroad (D. C.), 145 Fed., 438; United States v. Railroad (D. C.), 154 Fed., 897. 9. SAME. Failure to repair automatic coupler before distribution of car constitutes no violation of federal safety appliance act. The failure to repair a defective automatic coupling pin chain before distributing the car to which it is attached does not constitute a violation of the federal safety appliance act whose provisions are stated in the foregoing headnote, where the discovery of the defect and the injury resulting therefrom occur simultaneously, and where no negligence appears for failure to discover the defect earlier. A reasonable time within which to make the repair will be allowed. If the defect had been observed by the inspector before the car was detached from the train, it would still have been detached and distributed, and repairs thereafter made. (Post, pp. 420, 421.) 10. VERDICTS. Directed upon consideration of the entire evidence. Wherever, the jury is directed to return a verdict, it should be upon a consideration of the entire evidence in the case, and not upon any detached portion of such evidence. (Post, pp. 421, 422.) Case cited and approved: Greenlaw v. Railroad, 111 Tenn., 187. 11. SAME. Same. Directed where there is nc controversy as to any material fact. Where there is no controversy as to any material fact, the court may instruct the jury to return a verdict in. accordance with his view of the law applicable to such uncontroverted facts. (Post, p. 422.) Case cited and approved: Tyrus v. Railroad, 114 Tenn., 593. IS. SAME. Motion for peremptory instructions is not addressed to court’s discretion, but presents a question of law. A motion for peremptory instructions is not one addressed to the discretion of the court, biit one presenting a question of law as to whether there is any determinative evidence on which the jury must base a verdict in favor of the party who produces it.. (Rost, pp. 422, 423.) Cases cited and approved: Traction Co. v. Brown, 115 Tenn., 329; Kinney v. Railroad, 116 Tenn., 451. 13. SAME. Not to be directed where there is any dispute or doubt upon material and determinative evidence and issues. There is no power in the trial judge to direct a verdict where there is a dispute as to any material and determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence upon the issues to be tried. (Post, p. 423.) Case cited and approved: Kinney v. Railroad, 116 Tenn., 451. 14. SAME. Improper application of the rule in directing a verdict is no argument against it. The fact that the trial judge may sometimes make an improper application of the rule or the fact that there are supposed difficulties in its application because of alleged tendencies of trial judges to encroach upon the province of the jury, constitutes no argument against the soundness of the rule. (Post, pp. 423, 424'.) 15. SAME. Directed where a servant assumed the risk, and defendant is guilty of no negligence, when; case in judgment. Where, in an action for the death of a railroad switchman, it appears upon the uncontradicted facts that he assumed the risk as a matter of law, and where the facts are such that all reasonable men must draw the same conclusions from them that the defendant was not guilty of negligence, a question of law only is presented to the court, and it is proper for the trial court to direct a verdict for the defendant. (Post, pp. 422, 423, 424.)
119 Tenn. 425Price v. Clapp (1907)
1. VERDICT. Not set aside in supreme court for no evidence-when there is some evidence to support it. Where the testimony furnishes some evidence to support the-verdict of the jury, it will not he set aside in the supreme court on the ground that there is no evidence to support the same. (Post, pp. 429, 430.) S. LIBEL. Evidence of other similar acts is incompetent, and its admission is reversible error. In an action for libel alleged to have been committed ’ by an . anonymous letter written by the defendant, charging the plaintiff to be dishonest, evidence that defendant had previously admitted the writing of other anonymous letters, and had represented herself as being “something like a white cap,” was incompetent as irrelevant to the issues, and was inadmissible to show knowledge, intent, and purpose, under the rule admitting evidence of other offenses in certain criminal cases for the purpose of showing guilty knowledge or intent. (Post, pp. 430-432.) 3. EVIDENCE. Admission of incompetent evidence not clearly harmless, but prejudicial, is reversible error. Where it is not clear that defendant was not prejudiced by the erroneous admission of incompetent evidence, but, it seems, that the evidence very clearly influenced the jury and added materially to the amount of the damages awarded, its admission constitutes reversible error. (Post, pp. 431, 432.) Cases cited and approved: Lowry v. Railroad, 117 Tenn., 507, 515, and the cases there cited. ■4. LIBEL. Rule oí nominal damages does not apply where plaintiff was humiliated, though, not discharged from his employment for some time. In an action for libel for writing an anonymous letter to plaintiff’s employer, charging the plaintiff to be dishonest, and resulting in his being immediately denied the confidence of his employer and in his being humiliated, the rule of nominal damages does not apply, though he remained in his employment for some time thereafter. (Post, p. 432.) S. SAME. Punitive or vindictive damages may he allowed, when In an action for libel, where the charge imputes moral turpitude, punitive or vindictive damages may be allowed. (Post, pp. 432; 433.) Case cited and approved: Saunders v. Baxter, 6 Heist., 384. ■6. SLANDER. Wife cannot be sued for slander uttered by her without the joinder of her husband. For a slander uttered by the wife alone, without her husband’s knowledge, or participation, she cannot be sued alone, but must be sued jointly with her husband, who must be joined with her for the sake of conformity. (Post, p. 434.) Case cited and approved: Lee v. Atchley, MS. '7. SLANDER. Husband is liable for compensatory damages only, and not for punitive damages, for slander uttered by wife, in action against both for her slander. For a slander uttered by the wife without her husband’s knowledge or participation, in action against them jointly, he is liable for compensatory damages only, and not for punitive or vindictive damages, though she may be liable for the punitive or vindictive damages. (Post, pp. 433-435.) Case cited and approved: Lee v. Atchley, MS. 3. TORTS. Solid verdict against all joint tort feasors, when. As a general rule, a verdict which distributes the liability between joint tort feasors, according to jury’s impression as to the varying degrees of culpability of the respective parties, is not proper, on the ground that all who participate are equally liable to the injured person for the entire amount of the verdict. (Post, p. 435.) Case cited and approved: Railroad v. Jones, 100 Tenn., 512. 9. LIBEL. Husband is liable with wife for compensatory damages, but not for punitive damages for which, she is liable. In an action against the husband and wife for a libel committed by the wife alone, they are both jointly liable for the compensatory damages, for which the wife is liable, and she alone is liable for the additional exemplary or punitive damages properly allowable, and verdicts and judgments should be framed accordingly. (Post, pp. 432-437.) Code cited and construed: Secs. 4700, 4701, 4702 (S.); secs. 3686, 3687, 3688 (M. & V.); secs. 2972, 2973, 2974 (T. & S. and 1858). Oases cited and approved: Darwin v. Cox, 5 Yerg., 257; Carpenter v. Lee, 5 Yerg., 266; Railroad v. Gore, 106' Tenn., 390; Lee v. Atchley, MS.; Wilson v. Freedley (C. C.), 125 Fed., 962; 129 Fed., 835; Hill v. Duncan, 110 Mass., 238; Austin v. Wilson, 4 Cush., 273; Smith v. Taylor, 11 Ga., 20; Baker v. Young, 44 Ill., 42, 47; Zeliff v. Jennings, 61 Tex., 458.
119 Tenn. 438Mayor of Knoxville v. Gass (1907)
1. CONSTITUTIONAL LAW. Title of a legislative "bill expressing a general subject need not express the means or instru-mentalities of accomplishing the purpose of the act. If one general subject is expressed in the title of an act, it is not necessary that all the means or instrumentalities by which the general purpose of the act is to he accomplished- shall appear, either in the title or the body of the act, provided the subsidiary matters are germane to the general subject expressed in the title. (Post, pp. 440-457.) Constitution cited and construed: Art. 2, sec. 17. Cases cited and approved: Cannon v. Mathes, 8'Heisk., 505, 519; State v. Lasater, 9 Bax., 584; State v. Fickle, 3 Lea, 79; State v. Yardley, 95 Tenn., 546; McElwee v. McElwee, 97 Tenn., 649; Ryan v. Terminal Co., 102- Tenn., 128; State v. Brown, 103 Tenn., 454; State v. McMinnville, 106 Tenn., 384’; Carroll v. Alsup, 107 Tenn., 266; Condon v. Maloney, 108 Tenn., 83; State, ex rel., v. Hamby, 114 Tenn., 363, 364'. 2. SAME. Same. Title of a legislative bill may be broader . than, the subject of legislation enacted, when. The constitutional provision that “No hill shall become a law which embraces more than one subject, that subject to be expressed in the title,” does not apply to the title, but to the body of the bill. It is no objection to the hill that its title is broader than the legislation contained in its body, or covers, or can be construed to cover, other subjects of legislation, if the real subject of legislation is therein expressed and not obscured by foreign matters. (Post, p. 451.) Constitution cited and.construed: Art. 2, sec. 17. Case cited and approved: State, ex rel., v. Hamby, 114 Tenn., 364. 3. SAME. Same. Same. Issuance of bonds for municipal purposes is the subject expressed in the title and body with, fuller details; case in judgment. A statute (Acts 1907, ch. 361) whose caption and body authorize certain municipalities to issue a certain amount of bonds with which to fund the floating debts of said cities, to increase and improve the fire departments, to widen the streets, and to pay damages to property holders caused by the erection of viaducts and bridges; and also authorize said cities to issue another certain amount of bonds with which to build sewers, contains in its caption and body but one subject of legislation, namely, the issuance of bonds for municipal purposes, and therefore, it is not unconstitutional as violative of the constitutional provision that “No bill shall become a law which embraces more than one subject, that subject to be expressed in the title.” Acts cited and construed: Acts 1907, ch. 361. Constitution cited and construed: Art. 2, sec. 17.
119 Tenn. 458Atkins v. State (1907)
1. EVIDENCE. Nonexpert witnesses of personal observation may give opinion as to sanity or insanity, when. Where a nonexpert witness shows that he has had the means of observing the capacity, manner, peculiarities, or deportment of the person concerning whose sanity he undertakes to give evidence, he shows that he possesses the fundamental qualification of previous personal observation that renders him competent to give his opinion as to the soundness or unsoundness of the mind of such person. Such opinion or “judgment approaches to knowledge, and is knowledge, so far as the imperfections of human nature will permit knowledge of these things to be acquired, and the result thus acquired should be communicated to the jury. (Post, pp. 463-472.) ' Cases cited and approved: Gibson v. Gibson, 9 Yerg., 332; Norton v. Moore, 3 Head, 482; Puryear v. Reese, 6 Cold., 26; Dove v. State, 3 Heisk., 36’5; Wisener v. Maupin, 2 Bax., 357; Kirkpatrick v. Kirkpatrick, 1 Tenn. Cas., 258; Wilcox v. State, 94 Tenn., 110. 2. SAME. Same. Nonexpert witness must state the facts of knowledge of, and acquaintance with, the person whose sanity is under inquiry. A nonexpert witness cannot give an opinion as to the soundness or unsoundness of the mind of a person concerning whose sanity he undertakes to testify, unless he gives thfe facts of his knowledge of, and acquaintance with, such person. (Post, pp. 467-471. Case cited and approved: Wisener v. Maupin, 2 Bax., 257. 3. SAME. Nonexpert witnesses to state the facts before giving opinion as to sanity or insanity; failure not reversible error, when. The proper practice in the examination of a nonexpert witness as to the sanity or insanity of the accused or other person, whose sanity is under inquiry, is to require the witness to staté first the facts on which he bases his opinion, though a failure to comply with this rule would not be reversible error, where the facts are stated in the course of the testimony. CPost, pp. 470, 471.) 4. SAME. Nonexpert witnesses showing acquaintance sufficient to render them competent to give opinion as to sanity or insanity. Nonexpert witnesses who show that they had known the accused for some time, and had frequently seen and talked with him, are competent to give their opinion as to Ms sanity or insanity. (Post, pp. 463-472.) ñ. CHARGE OF COURT. Cautioning jury against expert testimony that is not erroneous. A charge of the court stating that while expert testimony is sometimes the only or best means to reach the truth, "yet it is largely a field of speculation, beset with pitfalls and uncertainties, and requires patient and intelligent investigation to reach the truth; and instructing the jury to receive it with caution, but to give to it such weight as they give all the other testimony, having in view a purpose to arrive at the truth, giving an impartial estimate of all the evidence, does not discriminate against the expert testimony, and is not erroneous. (Post, pp. 472, 473.) Case cited and approved: Wilcox v. State, 94 Tenn., 106. 6. HOMICIDE. Voluntary intoxication as a defense to murder in the first degree, but not to the lower degrees, when. Voluntary drunkenness or intoxication is available as a defense only in determining whether the accused is guilty of murder in the first degree or in tiie second degree, depending upon the fact whether the intoxication prevented the deliberation and premeditation essential to constitute murder in the first degree; hut as to all subsequent inquiries, including self-defense, he must be judged by the same rules which measure the conduct of sober men, and he cannot escape conviction on the ground of intoxication causing him to think erroneously that the deceased intended to do him great bodily harm, and that he killed the deceased in self-defense, when a sober man would not have so thought and acted. {Post, pp. 472-490.) Cases cited and approved: Bennett v. State, M. & Y., 133; Cornwell v. State, M. & Y., 147; Swan v. State, 4' Humph., 136; Pirtle v. State, 9 .Humph., 663; Haile v. State, 11 Humph., 154; Norfleet v. State, 4 Sneed, 346; Lancaster v. State, 2 Lea, 575; Cartwright v. State, 8 Lea, 376, 385; Reniger v. Pogossa, Plow-den, 19. 7. CHARGE OP COURT. That drunkenness aggravates the offense is a harmless error, where the jury fixed minimum punishment, when. The court’s erroneous charge to the jury that the drunkenness of the accused would not only be no excuse for his commission of the homicide, “but rather an aggravation of his offense,” was not prejudicial, but harmless, where the jury found ■the accused guilty of murder in the second degree, and assessed his punishment at the minimum. {Post, pp. 475, 490, 491.) 8. SAME. Request for instructions covered by those given are properly refused. A request to charge what is fully covered by the charge given is properly refused. {Post, pp. 477, 491.)
119 Tenn. 492S. B. Luttrell & Co. v. Knoxville, La Follette & Jellico Railroad (1907)
1. RAILROADS. In materialman’s suit to enforce lien, subcontractor is necessary party, when. In a suit by a materialman to enforce a lien on the property of a railroad company founded on an unadjudicated claim for materials furnished to a subcontractor of the principal railroad contractor for the construction of a railroad tunnel, the subcontractor is a necessary party. (Post, pp. 497-504.) Acts cited and construed: Acts 1881, ch. 67; Acts 1883, ch. 220; Acts 1889, ch. 103; and especially Acts 1891, ch. 98, secs. 1, 2, and 3. Oases cited and approved; Warner v. Yates, 118 Tenn., 548; Vreeland v. Ellsworth, 71 Iowa, 347; Hardware Co. v. McConnell, 102 Ala., 577; Cumming v. Wright, 72 Ga., 767; Murdoch v. Hillyer, 45 Mo. App., 287; Ashburn v. Ayers, 28 Mo., 77; Estey v. Lumber Co., 4 Colo. App., 165; Thompson v. Gilmore, 50 Me., -435. 2. SAME. Same. Failure to make subcontractor a party is waived by answer of railroad to merits without objection.. . The failure to make the subcontractor a party to the suit described in the first headnote is waived by the defendant railroad’s answer to the merits, without making the objection by demurrer or otherwise in the lower court. (Post, pp. 501, 504.) 3. SAME. Same. Same. Answer denying the existence and fixing of the lien does not raise objection for nonadjudication against subcontractor or for his not being a party, when. Objection for failure of complainant in the suit described in the first headnote to establish his claim by adjudication against the subcontractor, or to make the subcontractor a party to such suit, is not made or raised so as to avoid a waiver of the objection by defendant railroad’s answer denying that complainant has taken the necessary steps to fix a lien in his favor upon respondent’s railroad and property, and denying that complainant has acquired or is entitled to any lien on such property; a construction concurred in by defendant railroad, by permitting complainant’s evidence, showing that the materials were furnished to the subcontractor and by him used in the construction of the railroad tunnel, to be admitted without objection. (Post, pp. 504, 505.) 4„ SAME. Defects in notice or- absence of notice of lien for materials furnished to a subcontractor may be waived. In a materialman’s suit to enforce a lien for materials furnished to a subcontractor in the construction of a railroad tunnel, defects in complainant’s notice to the railroad of his lien, or the failure to give such notice, may be waived by the defendant railroad, and the same is waived by not making objection in the lower court. (Post, p. 505.) Case cited and approved: Noll v. Railroad, 112 Tenn., 140. 6. SAME. Materialman’s lien for materials furnished to a subcontractor may be enforced without attachment. A materialman’s lien against a railroad and its property for materials furnished to a subcontractor in the construction of a railroad tunnel may be enforced in chancery, without attachment of the property sought to be subjected, by a bill framed in strict conformity with the statute creating the lien, with a description of the property whose sufficiency is not questioned in the answer, and resulting in a decree” declaring the lien upon, the • property by substantially the same description as-that given in the bill, where the statute does not require attachment of the property sought to be subjected. (Post, pp-505-509.) Acts cited and construed: Acts 1883, ch. 220; Acts 1891, ch.. 98, secs. 2 and 3. Cases cited and approved: August v. Seeskind, 6 Cold., 173; Bryan v. Zarecor, 112 Tenn., 511; Trust Co. v. Condon, 67 Fed.,. 106, 14 C. C. A., 314. 6. SAME. Rule of liberal construction given to mechanic’s lien, law is applied to railroad lien law. The rule of liberal construction uniformly given to the mechanic’s-, lien law to carry out its purpose, and to secure and protect, those entitled to the lien, and thereby to promote and encourage improvements, is applied’ to the railroad lien law. (Post, p. 607.) Cases cited and approved: Barnes v. Thompson, 2 Swan, 215; Alley v. Lanier, 1 Cold., 541; Kay v. Smith, 10 Heisk., 42; Steger v. Refrigerator Co., 89 Tenn., 453; Ragon v. Howard, 97 Tenn., 341. 7. SAME. Lien for explosives furnished to a subcontractor to be used in blasting in constructing a railroad tunnel. A materialman is entitled to a lien against a railroad for explosives furnished to a subcontractor to be used in blasting in the construction of. a railroad tunnel, under a statute creating a lien for work and materials furnished in the construction and repair of railroads. (Post, pp. 512, 513, 515, 520.) Acts cited and construed: Acts 1883, eh. 220, sec. 3; Acts 1891, ch. 98, sec. 1. Case cited and approved: Powder Co. v. Railroad, 113 Tenn., 392. 8. SAME. Materialman has lien for materials furnished to a. subcontractor to be used in construction or repair of railroad, whether so used or not. A materialman has a lien for materials furnished in good faith to a subcontractor to be used in the construction -or repair of a certain railroad, though such materials are not actually used for the purpose for which furnished. {Post, pp. 513, 514.) Acts cited and construed: Acts 1883, ch. 220, sec. 3; Acts 1891,. ch. 98, sec. 1. Cases cited and approved: Powder Co. v. Railroad, 113 Tenn., 392. 9. SAME. Mo lien for materials furnished to a railroad subcontractor for erection of shanties for his workmen. A materialman is not entitled to a lien for materials furnished to a railroad subcontractor for the erection of shanties on leased land adjacent to the railroad right of way for the shelter of his workmen. (Post, pp. 513, 514, 515.) Acts cited and construed: Acts 1883, ch. 220, sec. 3; Acts 1891, ch. 98, sec. 1. Cases cited and approved: Lumber Co. v. Railroad, 33 Neb.,. 39 (overruling the former opinion in 28 Neb., 39); Dudley v. Railroad, 65 Mich., 655. 10. SAME. Mo lien for tools and machinery and repairs thereof, and the appliances used in operating them; articles specified. A materialman is not entitled to a lien against a railroad for furnishing to a railroad subcontractor gasoline, gasoline torches, and coal oil, used for lighting a railroad tunnel while in process of construction, packing, mattocks, cotton waste, electric, light supplies, carts, tools, shovels, spades, blacksmith tools, wagons, scrapers, plows, machines, machinery, derricks, derrick crabs, cables, and repairs for all these, for they are not lienable articles. (Post, pp. 509-513, 515-519.) Acts cited and construed: Acts 1883, ch. 220, sec. 3; Acts 1891, ch. 98, sec. 1. Case cited and approved: Powder Co. v. Railroad, 113 Tenn., 392, 396, 397; Powder Co. v. Railroad, 42 Fed., 474; Trust Co. v. Railrdad, 23 Fed., 703. 11. SAME. No lien, for tableware and commissary supplies, nor materials in payment for labor, when. Under our statute creating the railroad lien, tableware and commissary supplies furnished to a subcontractor and materials furnished to the workmen in part payment for their labor are not lienable articles, for the sense in which they enter into the construction of the railroad is too remote. (Post, pp. 519, 520.) Acts cited and construed: Acts 1883, ch. 220, sec. 3; Acts 1891, ch. 98, sec. 1. Case cited and approved: Powder Co. v. Railroad, 113 Tenn., 392, 396, 397. IS. SAME. Lien for specified articles furnished to a subcontractor to be used in the construction of a railroad tunnel. A materialman is entitled to a lien against a railroad for furnishing to a railroad subcontractor dynamite, fuse, blasting wire, wire fuse, nails, nuts, washers, bolts, soft steel and iron which went into the construction of the lining and approaches to the railroad tunnel. (Post, pp. 509, 510, 515, 520.) Acts cited and construed: Acts 1883, ch. 220, sec. 3; Acts 1891, ch. 98, sec. 1.
119 Tenn. 521State v. Smith (1907)
1. CONSTITUTIONAL LAW. Amendatory statute must recite the title or substance of the law sought to be expressly amended. Acts 1899, ch. 381, expressly undertaking to amend Acts 1897, ch. 106, making it a felony for any one to knowingly, willfully, and maliciously cut or remove timber, for market, from the land of another, without the owner’s consent, by striking out the words “and maliciously,” is void because of its failure to recite in its caption or otherwise the title or substance of ' the law sought to be amended as required by the constitution.! (Post, p. 524.) Acts cited and construed: Acts 1897^oh'.'lÓ6; Acts 1899, ch. 381. Constitution cited and construed: Art. 2, sec. 17. Case cited and approved-:' Railroad v. State, 110 Tenn., 598. 2. INDICTMENTS./' For statutory offenses should pursue the statute; substituted equivalent word does • not invalidate indictment.' It is always best for the indictment for a statutory offense to pursue’ the words of the statute; but where- a substituted word is equivalent to the one in the statute, or is of more extensive signification, and includes it, the indictment will be sufficient. (Post, pp. 524', 525.) Cases cited and approved: Peek v. State, 2 Humph., 85; Starks v. State, 7 Bax., 65; State v. Pennington, 3 Head, 120. •3. CRIMINAL LAW. Word “knowingly,” as used in criminal statutes, defined. The word “knowingly,” as used in criminal statutes, means that state of mind wherein the person charged was in possession of facts under which he was aware he could not lawfully do the act whereof he is charged; knowledge of the law being necessarily imputed to him, as in all criminal cases. (Post, p. 525.) Case cited and approved: McGuire v. State, 7 Humph., 54. 4. SAME. Word “willfully,” as used in criminal statutes, defined. The word “willfully,” as used in criminal statutes,- means intentionally; that is, that the person doing the act intended at the time to perform the particular act.. (Post, p. 525.) •5. SAME. Word “maliciously,” as used in criminal statutes, defined. The word “maliciously,” used in a criminal statute as appears ' in the .first headnote, is used in the broad, legal sense of criminal intention, or-t^at state of mind of a person who does a wrongful act intentionally or willfully; and without legal justification or excuse. (Postt'p, 525.) '6. SAME. Words “knowingly,” “willfully,” and “maliciously,” taken together, defined. \ The words, “knowingly,” “willfully,” 'and “maliciously,” tak.en together, comtemplate a case wherein 'a,. man acts advisedly, intentionally, and with criminal intent, or that state of mind of a person who does a wrongful act intentionally or willfully, and without legal justification or excuse. (Post, pp. 525, 526.) ‘7. SAME. Word “feloniously” defined; and includes “maliciously.” The word “feloniously” means with a deliberate intent to commit a wrongful act, contrary to Jaw, constituting an offense, an act done with intent to commit a crime, and, as so used, includes “maliciously.” (Post, pp. 526, 527.) Cases cited and approved: Young v. Commonwealth, 12 Bush (Ky.), 243; Aikman v. Commonwealth, 18 S. W., 937, 13 Ky. Law Rep., 894; Shotwell v. State, 43 Ark., 347; Commonwealth v. Carson, 166 Pa., 183; Whitman v. State, 17 Neb., 224. 8. SAME. Substitution of “feloniously” for “maliciously” does not vitiate the indictment, when. The substitution of the word “feloniously” for the word “maliciously” in an indictment under the statute stated in the first headnote is sufficient, and does not vitiate the indictment. (Post, pp. 525-527.)
119 Tenn. 528Southern Railway Co. v. Bickley (1907)
1. COMMON CARRIERS. Delivery of trunk is essential to create liability for its loss. Delivery of a trunk, actual or constructive, to a common carrier is essential to render it liable as suck for its loss. (Post, pp. 530, 532.) S. SAME. Same. Delivery of trunk cheek issued by one railroad to the agent of another railroad is not a constructive delivery of the trunk to the latter railroad, when. There is no constructive delivery of a trunk to a railroad so as to render it liable for the loss thereof, where its station agent accepted a check issued by another railroad for its transpor- ' tation to a station common to both railroads, • at which they had a common agent and common'depot, and agreed to have the trunk brought over the line of his railroad, and to for-ward it to the destination of the person delivering the check, but failed to do so, and the trunk was subsequently burned while at the said common station to which it was checked by the accepted check. Case cited and approved: Stewart v. Gracey, 93 Tenn., 314. 'Case cited and distinguished: Railroad v. Weaver, 9 Lea, 38. 3. APPEALS. Dismissal of suit upon reversal of judgment for plaintiff without a jury, when. Upon reversal of a judgment rendered in favor of the plaintiff by the lower court, without the intervention of a jury, the supreme court will dismiss the suit. (Post, p. 536.)
119 Tenn. 537Acme Box Co. v. Gregory (1907)
1. MASTER AND SERVANT. Safe place to -work; servant assumes risk of a known dangerous place or hole, when. It is th.e duty of the master to furnish the servant with a safe-place to work; but where the servant has full knowledge of the danger, and continues to work in the dangerous place, he-assumes the risk, as where the plaintiff knowing the exposed condition of a hole in the floor, continues to work there, he-assumes the risk. (Post, p. 541.) Cases cited and approved: Railroad v. Smith, 9 Lea, 685; Brewer v. Coal Co., 97 Tenn., 615; Brown v. Electric Co., 101 Tenn.,. 252; Corbett v. Smith, 101 Tenn., 368; Iron Co. v. Pace, 101 Tenn., 476, 486-489; Ferguson v. Cotton Mills, 106 Tenn., 236. 2. SAME. Same. Master’s duty to inspect premises; no presumption of negligence from failure for a short time. It is the duty of the master to exercise reasonable care to inspect the premises and the place where his servants are-engaged, but no presumption of negligence will arise from his failure to inspect during the short period of four and one-half hours after a defect suddenly appeared by the patch, covering a hole in the floor, being torn off, and leaving the hole open and. unprotected, when no indication of anything wrong was communicated to him. (Post, pp. 541, 542.) 3. NEW TRIALS. Overruled motion for a mew trial may be-embraced in bill of exceptions for review on appeal, when. A motion for a new trial overruled and refused may be brought to the supreme court in the bill of exceptions, where a written motion was filed stating the grounds on which a new trial was sought, where it appears on the minute hook that such a motion was made, and what disposition was made of it, with a reference made to the written motion so filed, and notation of the filing entered on the rule docket. (Post, pp. 542-547.) Acts cited and construed: Acts 1875, ch. 106. Cases cited and distinguished: Railroad v. Egerton, 98 Tenn., 541, 542, 543; Railroad y. Johnson, 114 Tenn., 632. 4 PEREMPTORY INSTRUCTIONS. For verdict for defendant where plaintiff as employee assumed a known risk. Peremptory instructions for a verdict in favor of the defendant should he given, where the plaintiff as employee with full knowledge of the danger continues to work in the dangerous place; and the defendant as employer is guilty of no negligence. (Post, pp. 539-542.) 5. SAME. Same. Dismissal of suit upon reversal for failure to give. Where a judgment in favor of the plaintiff is reversed upon the ground that the circuit judge erroneously refused to give peremptory instructions for a verdict in favor of the defendant, the supreme court will dismiss the suit. (Post, pp. 539-542, 547.)
119 Tenn. 548Elgin City Banking Co. v. Hall (1907)
FROM BRADLEY. Appeal from the Chancery Court, of Bradley County.— T. M. McConnell, Chancellor.
119 Tenn. 567Cross v. Keathley (1907)
FROM SCOTT. Appeal from the Circuit Court of Scott County.— G. Me. Henderson, Judge.
119 Tenn. 583Hurd v. State (1907)
1. CRIMINAL LAW. No authority to arrest without -warrant for a misdemeanor not committed in the officer’s presence. An officer has no authority to arrest one without a warrant for the misdemeanor of unlawfully carrying a pistol, or for other misdemeanors, not committed in his presence, hut the commission of which is communicated to him hy others. (Post, pp. 591-593.) Code cited and construed: Sec. 6997 (S.); sec. -5863 (M. & V.); sec. 5037 (T. & S. and 1858). Code cited and approved: Pesterfleld v. Vickers, 3 Cold., 215. 2. SAME. Killing in resisting arrest hy one without notice of his official character is manslaughter or in self-defense, when. Where one kills an officer attempting to arrest him, and there is nothing from which the official character of the officer can he inferred, the offense is reduced to manslaughter, though the officer had power to make the arrest; and where a person is placed in a position in which his life is imperiled hy the act of another, having no notice of the official character of the latter, and the killing is apparently necessary to save his own life, the homicide is committed in self-defense, though the officer was legally seeking to arrest tie accused. (Post, pp. 591-597.) '■ Case cited and approved: Note in Keady v. People, 66 L. R. A., 353, 387. S. SAME. Charge erroneous as to want of knowledge of official character of the arresting officer, and lawfulness of arresting for a misdemeanor without a warrant. Where, on a trial for the murder of an officer while attempting to arrest the accused who killed the officer in resisting such arrest, there was a conflict in the testimony on the questions (1) whether the accused knew that the deceased was an officer and was attempting to arrest him, and (2) whether a third person said to the deceased: “Shoot the -; he has got a gun,” the failure to charge that the want of knowledge of the official character of the deceased and his purpose to make the arrest might, if the other facts warranted it, reduce the homicide to manslaughter, and the giving of a charge that the officer might make the arrest for a misdemeanor not committed in his presence, with or without warrant, accompanied hy a charge that the material inquiry was whether the deceased was attempting to make a lawful arrest, and if he was, and while in the discharge of his duty, using no more force than was reasonably necessary, the accused killed him he would be guilty of murder, constituted reversible error. (Post, pp. 588-597.)
119 Tenn. 598Johnson v. Continental Insurance Co. of New York (1907)
FROM KNOX. Appeal from the Chancery Court of Knox County.— Joseph W. Sneer, Chancellor.
119 Tenn. 620Smoky Mountain Land, Lumber & Improvement Co. v. Lattimore (1907)
1. TAXATION. In reassessment proceedings, State board of equalization acquires jurisdiction of tiie person of the taxpayer by his appeal. Where in a proceeding before the county trustee for the reassessment of property for taxation, the taxpayer appears in response to a citation, and after a hearing, he appeals from the trustee’^ decision to the State board of equalization, said board acquires jurisdiction of the person of the taxpayer. (Post, pp. 631, 632.) Acts cited and construed: Acts 1903, ch. 258, sec. 31. 3. SAME. Decision is void where hearing was before but one member of State board of equalization, when. In proceedings for the reassessment of property for. taxation, the taxpayer appealing to the State board of equalization is entitled as a matter of right to a hearing before a legal quorum consisting of a majority of said board, and a decision rendered in a case, and signed by all the members where but one of the three members of the board sat at the hearing with the private secretary of another member, without the appellant’s knowledge that such secretary was not a member of the board, is void. (Post, pp. 631-635.) Acts cited and construed: Acts 1903, ch. 258, sec. 38, subsec. 1. Cases cited and approved: Cowan v. Murch, 97 Tenn., 590; Carroll v. Alsup, 107 Tenn., 260; Croker v. Crane, 21 Wend. (N. Y.), 211. 3. SAME. Same. Objection for want of quorum is excused, where taxpayer supposed a third party to be a member of board, when. In proceedings for the reassessment of property for taxation, where the appeal is heard before one member of the State hoard of equalization with the private secretary of another member of the same name sitting in the place of such member, and supposed to be such member, the taxpayer was excused from interposing an objection to the jurisdiction of the one member to hear the appeal, if, indeed, objection was necessary. (Post, pp. 626, 627, 633, 634.) 4. SAME. Injunction against collection of taxes under a void decision or judgment of the State board of equalization. Where the decision of the State board of equalization in a proceeding for the reassessment of property for taxation is void because there was no quorum present to hear the appeal before such board, a bill is maintainable to enjoin the enforcement of such judgment and to enjoin the county trustee from collecting the taxes. (Post, pp, 623, 626, 629, 636.) 5. SAME. Void judgment leaves appeal pending before State board of equalization; case reopened and valid judgment rendered. Where the decision or judgment by the State board of equalization in proceedings for the reassessment of property for taxation is void for want of a quorum at the hearing, the appeal remains pending before the board and it has the power and jurisdiction, upon proper notice to the parties, to reopen the case and render judgment or finding by the full board. (Post, p. 636.) S. SAME.' Judgment of reassessment by State board of equalization is not subject to collateral attack, when. The State board of equalization is a quasi court of record, and its judgment of reassessment of property for taxation in a proceeding by which it had jurisdiction of the taxpayer and the subject-matter is not subject to collateral attack for irregularities, as that it was unjust, based on no evidence, or insufficient evidence, or that the taxpayer had violated none of the provisions of the act upon which reassessments can be made. (Post, pp. 629-632, 636.) Acts cited and construed: Acts 1903, ch. 258. Case cited and approved: Briscoe v. McMillan, 117 Tenn., 115. 7. SAME. Same. Review of judgment of State board of equal- . izers as to evidence by certiorari only. The Question whether a taxapayer had violated some of the provisions of the statute (Acts 1903, ch. 258, sec. 38, subsec. 1) so as to authorize the reassessment of his property for taxation is a jurisdictional fact to be determined by the State board of equalization from the evidence before it; and the question whether it has this evidence is to be determined by the board. These matters can be reviewed only on a cer-tiorari. (Post, pp. 625, 636.) 8. SAME. Reassessment is not prevented by regular assessment made and passed upon by county and State boards, and payment of the taxes. The fact that the property has been regularly assessed in the first instance, the assessments passed upon by the county board of equalizers, and in turn, by the State board of equalization, and by it certified back to the county, and the taxes paid thereon, will not prevent a reassessment in a proper case. (Post, pp. 636.)
119 Tenn. 638State v. Lancaster (1907)
PROM HAMILTON. Appeal from the Chancery Court of Hamilton County. —T. M. McConnell, Chancellor.
119 Tenn. 663Turner v. State (1907)
1. MURDER, IN THE FIRST DEGREE. Evidence sufficient to sustain a conviction. Evidence stated and held sufficient to sustain a conviction of murder in the first degree. "2. SAME. Killing at request of deceased is. One who kills another at his request or command is guilty of murder in the first degree. (Post, p. 671.) •3. SAME. Express malice toward deceased is not necessary. Express malice, in the sense of hatred or malevolence toward the deceased, need not he shown in order to support a verdict of murder in the first degree. (Post, pp. 671-675.) ‘Cases cited and approved: Dale v. State, 10 Yerg., 551; Swan v. State, 4 Humph., 136; Bratton v. State, 10 Humph., 108; Lewis v. State, 3 Head, 148; Warren v. State, 4 Cold., 130. 4. SAME. No reversal for insanity not shown otherwise than by the enormity of the offense, when. In a prosecution for murder in the first degree, committed pur-súant to an agreement that the defendant was to kill the deceased and then himself, where there was evidence showing that the defendant was a man of intelligence and some education, and no evidence of hereditary insanity, or previous acts tending to show an unbalanced mind, a verdict of guilty will not he disturbed by the supreme court on the ground that defendant was insane when he committed the act. (Post, pp. 675-676.).
119 Tenn. 677Brown v. Sams (1907)
1. PARTITION FENCES. Erected and maintained at joint expense; each to maintain particular part by agreement; liability for failure prevents recovery of damages by the one so failing. Partition fences upon the line between adjoining landowners may be erected and kept in repair at their joint expense; and when the fence is constructed between their cultivated lands, they may agree that each shall keep a particular part thereof in repair, and where such agreement is made, it is their duty to comply with it, and the one failing to discharge this duty is liable for all damages that may result from such failure, and therefore, cannot recover from the other damages caused to his crops by the other’s hogs which passed through that part of the fence which he failed to keep in repair according to the agreement. Code cited and construed: Secs. 2998-3005 (S.); secs. 2258-2265 (M. & V.); sees. 1688-1692 (T. & S. and 1858). Acts cited and construed: Acts 1875, ch. 64. 2. SAME. Duty to keep in repair a certain portion cannot be avoided by verbal notice without the assent of the other. The obligation and contract upon the part of the adjoining landowner's that each shall keep in repair a certain portion of a partition fence cannot he avoided or annulled by a verbal notice given by one to the other without the assent of the other; nor can the fence be removed under such circumstances. Acts cited and construed: Acts 1857, ch. 64; Acts 1897, eh. 95. Cases cited and distinguished: Clowers v. Sawyers, 1 Head, 157; Stallcup v. Bradley, 3 Cold., 407. 3. SAME. Statutes relating to, not repealed by a no fence law, when. A statute (Acts 1903, ch. 151), applicable to a certain county, making it unlawful to allow live stock to run at large, and making the owner liable for all damages done by such stock while at large, does not expressly repeal the statutes (Shannon’s Code, secs. 2998-3005, and Acts 1875, ch. 64) in. relation to partition fences; nor does it repeal them by implication, since there is no inconsistency between the earlier statutes and the later statute. (Post, p. 681.) Code cited and construed: Secs. 2998-3005 (S.); secs. 2258-2265 (M. & V.); secs. 1688-1692 (T. & S. and 1858). Acts cited and construed: Acts 1875, ch. 64; Acts 1903, ch. 151. Cases cited and approved: Fisher v. Baldridge, 91 Tenn., 418; McCampbell v. State, 116 Tenn., 107. 4. SAME. Hogs in owner’s field are not “running at large” in sense of a no fence statute, when. Hogs in the owner’s field, and escaping therefrom through that part of a defective partition fence into the field of the adjoining landowner whose duty it was to keep the same in repair, were not “running at large3’ within the meaning of a no fence statute (Acts 1903, ch. 151) making it unlawful to allow live stock to run at large. (Post, p. 682.) Acts cited and construed: Acts 1903, ch. 151.
119 Tenn. 683Converse Bridge Co. v. Grizzle (1907)
1. MASTER AND SERVANT. Master’s duty • to furnish, safe tools and implements and to take notice of defects, when. It is the master’s absolute duty to use active diligence to prevent improper or unsafe tools or implements being furnished to an employee by which he may be injured; and it is not necessary that the master should be advised of the particular defects causing the injury; but he is liable if the defects were of such character that it was his duty to take notice of them. (Post, p. 692.) Cases cited and approved: Guthrie v. Railroad, 11 Lea, 372; Bruce v. Beal, 99 Tenn., 304'; Morriss v. Bowers, 105 Tenn., 64. 2. SAME. Same. Master’s continuing duty to inspect appliances used by his servants. The master is not only bound to furnish safe appliances in the first instance, but must exercise proper diligence to keep them safe, and cannot disregard the duty of inspection simply because the appliance has always performed its functions properly. (Post, pp. 692-697.) Cases cited and approved: Bruce v. Beal, 99 Tenn., 304; Mor-riss v. Bowers, 105 Tenn., 64; "Welsh v. Cornell, 49 App. Div., 203, 63 N. Y. Supp., 44; Houston v. Bush, 66 Vt., 331; Scandel v. Construction Co., 50 App. Div., 512, 64 N. Y. Supp., 232; Dyer v. Bridge Co., 198 Pa., 182. 3. SAME. Master’s liability for injury from defective appliance on ground of negligence; case in judgment. Where a servant is ordered by the master from his regular employment to assist in moving some heavy metal by a derrick;, constructed of pine timbers, in use for about, five years, and standing in the same position for nearly two years, without any inspection shown or appearing, and because of the rotten condition of its timbers, it collapsed while in use, causing the servant’s death, the master will be liable in damages on the ground of his failure to- exercise proper diligence to keep the derrick in safe condition. 4. SAME. Same. Mo error for refusal to give peremptory instructions directing a verdict in such. case. In such case as that shown in the foregoing headnote, there is , no error in the refusal of the trial judge to direct a verdict upon the request of defendant for peremptory instructions. (Post, pp. 686, 687, 694, 697.)
119 Tenn. 698Finley v. Acme Kitchen Furniture Co. (1907)
FROM HAMILTON. Appeal in error by J. T. Cameron, an attorney connected with the cases, from a judgment for certain costs, rendered by the Circuit Court of Hamilton County. — M. M!. Allison, Judge.
119 Tenn. 710Moore v. Chattanooga Electric Railway Co. (1907)
1. MASTER AND SERVANT. Street railway is not liable for injuries to its employee received from a telephone pole used by it, when. A street railway company is not liable to its conductor for injuries received by his head coming in contact with a pole while he was leaning from the platform of the car to watch the trolley, where the pole was not upon its right of way, and was not erected by it, but by a telephone company, which deprived the street railway company of all control over it or power to remove it, although the street railway company used the pole jointly with the telephone company. (Post, pp. 714-717.) Case cited and approved: Railroad v. Moore, 113 Tenn., 531. 2. SAME. Employee’s contributory negligence deprives him cf right to recover, when he knew of the danger. Where a telephone pole against which a street railway conductor’s head was struck while leaning from the platform of the ' car to watch the trolley was such an obstruction and in such ] position that it would necessarily come under his observation, and that he must have known, or by the exercise of ordinary care could have known, of its existence and location, his own negligence was the proximate cause of his injury, which deprives him of the right to recover for the damages. (Post, pp. 716, 717, 718.) Case cited and approved: Ferguson v. Cotton Mills, 106 Tenn., 239. 3. SAME. Assumption of risk by employee bars recovery for injuries, when. A street car conductor continuing in the service of a street railway company, with knowledge or inexcusable ignorance of an obstruction and tbe necessary danger attending it, assumes the risk of suck’ danger, and is barred of any recovery for an injury received from such obstruction. (Post, pp. 718, 719.) Cases cited and approved: Jennings v. Railroad, 7 Wash., 275; Drake v. Railroad, 173 N. Y., 466; Ladd v. Railroad, 180 Mass., 454. 4. TORTS. Joint or separate actions against all tort feasors, with recovery for full damages. The plaintiff in an action of tort may sue all the tort feasors jointly, or he may maintain separate actions against each of them; and, whether the action be joint or separate, he is entitled to recover full damages against all the parties guilty of the tort. (Post,^p. 721.) Cases cited and approved: Railroad v. Jones, 100 Tenn., 515; Swain v. Copper Co., Ill Tenn., 433. 5. SAME, Same. Judgment in tort in favor of defendant is conclusive of another action against him though other parties may be sued jointly with him. While the plaintiff in an action of tort may sue separately or jointly, but if he sues separately, he cannot, after judgment upon the merits, maintain a new action against the one sued separately by merely joining others therein, as a judgment upon the merits in favor of a telephone company in an action against it for injury to a street railway conductor whose head was struck against a telephone pole, while leaning from the platform of the car to watch the trolley, is conclusive of and a bar to a subsequent joint action against it and the street railway company so far as the telephone company is concerned. (Post, pp. 719-723.) Case cited and approved: Sessions v. Johnson, 95 XT. S., 347. 6. RES ADJUDICATA. Record as evidence as to identity of parties; further evidence is required, when. The burden of establishing the plea of former adjudication rests upon tlie party relying thereon; but where such party has produced and placed in evidence the record relied upon in the plea, be has made out a prima facie case, if it shall appear from an inspection of that record with reasonable certainty that the parties to that case and the cause of action .then sued upon are the same as those in the pending suit. It is only where these facts do not appear that further evidence is required to sustain the plea. (Post, pp. 723, 724.) Cases cited and approved: Ridley v. Buchanan, 2 Swan, 559; Williams v. Hollingsworth, 5 Lea, 360; Packet Co. v. Sickles, 5 Wall., 592. 7. SAMS. Same. Case in judgment. A record introduced in evidence, in an action by a street railway conductor against the street railway company and a telephone company for personal injuries, for the purpose of establishing the plea of former adjudication interposed by the telephone company, is sufficient to make out a prima facie case of identity ■ of parties and cause of action, where such record discloses that in that case a person of the same name as plaintiff in the pending suit was plaintiff in the former suit, and that a tele- • phone company of the same name as defendant telephone company in the pending suit was defendant in the former suit, and contains averments substantially the same as those in the declaration filed in the pending suit, though the declaration in the pending suit contains averments of negligence not found in the former suit. (Post, pp. 719-724.) 8. JURISDICTION. Of United States circuit court of appeals to enter final judgment where jurisdiction -is dependent on diversity of citizenship. The United States circuit court of appeals has jurisdiction to enter á final judgment where jurisdiction is dependent on diversity of citizenship, and the judge of the lower court, upon remandment, cannot open the case, and has no judicial function to exercise in the matter, and can only execute the judgment of said circuit court of appeals, which is merely a ministerial act. (Post, pp. 724-726.) Acts of congress cited and construed: Acts 1891, ch. 517, secs. 6 and 10. Cases cited and approved: Iron Co. v. Meeker, 109 U. S., 181; Mower v. Fletcher, 114 U. S., 128; Railroad v. Toúrville, 179 IT. S., 326. 9. RES ADJUDICATA. Opinion in former case examined to see the point of decision and whether on the merits. "Where a plea of former adjudication is interposed, the written opinion of the court in the former case may he examined to ascertain the point on which it was decided, and to determine whether the decision was upon the merits. (Post, pp. 726, 727.) Cases cited and approved: Fowlkes v. State, 14 Lea, 14; State v. Bank, 96 Tenn., 595. 10. SAME. Judgment dismissing suit upon demurrer is upon the merits, when. Where it appears that the former suit was dismissed, not for any defect in the pleadings, or other question not going to the right of the plaintiff to maintain his action, hut because, upon his own statement of the facts, he had no cause of action against the defendant, the judgment, although upon demurrer, was upon the merits, and is sufficient to support a plea of former adjudication. (Post, pp. 726-728.) Cases cited and approved: Peeler v. Norris, 4 Yerg., 331; Welsh v. Harmon, 8 Yerg., 103; Murdock v. Gaskill, 8 Bax., 22; Hods-den v. Caldwell, 1 Lea, 50; Thompson v. Blanchard, 2 Lea, 528; Grotenkemper v. Carver, 4 Lea, 375; Parkes- v. Clift, 9 Lea, 624. 11. SAME. -Transcript of record from court rendering final judgment, though remanded for execution thereof, is from the proper court, when. A transcript of the record from the United States circuit court of appeals filed as evidence to establish, a plea of former adjudication is a full and complete record of the case, and comes from the proper court, where the cause was finally heard and determined upon the merits in that court, and final judgment was entered, though the cause was remanded to the United States circuit court for execution of the judgment, since the order of the circuit court upon the remandment, in entering the final judgment of the circuit court of appeals and carrying it into effect, would throw no light on the matters adjudicated. (Post, pp. 720, 728.)
119 Tenn. 729Third National Bank of St. Louis v. Hays (1907)
1. BILLS AND NOTES. Purchaser of draft with hill of lading-attached is vested with special property in the goods becoming absolute on drawee’s refusal to pay. When the seller and shipper of- property contracted to be sold consigns the same to his order with instructions to the common carrier to notify the proposed purchaser at the destination of the shipment, and for the purchase price draws on the purchaser of the property a draft payable to the bank or person purchasing the same, to which draft is attached the bill of lading indorsed in due course, a special property in the goods embraced in the bill of lading passes to the said pá'yee and purchaser of the draft, subject to be divested by the acceptance and payment of the draft, and on the drawee’s refusal to accept and pay the draft, the title of the holder of the draft becomes-absolute. (Post, pp. 731-738.) Cases cited and approved: Means v. Bank, 146- U. S., 620, with its numerous citations shown on pages 737 and 738, and! numerous other cases cited on pages 736 and 738. 2. BILLS OP LADING. Holder is entitled to property embraced therein against all subsequently acquired liens. The delivery of a bill of lading is a symbolic delivery of the property which it represents, and the holder of a bill of lading has constructive possession of the property embraced therein, and may hold it against all persons acquiring liens subsequent to the transfer of the bill of lading. (Post, pp. 738-742.) Cases cited and approved: Ochs v. Price, 6 Heisk., 488, 487,. (citing Curry v. Roulstone, 2 Overt., 110; Kirkman v. Bank, 2-Cold., 403); Cornick v. Richards, 3 Lea, 25; Lewis v. Small, 117 Tenn., 155; Bank v. Bank, 91 U. S., 98. Cases cited and distinguished: Saunders v. Bartlett, 12 Heisk., 316 (citing Woodruff v. Railroad, 2 Head, 94); Oliver v. Moore: 12 Heisk., 482. 3. SAME. Case in judgment involving questions in both, of tlxe foregoing headnotes. The seller and shipper of property contracted to be sold consigned the same to his own order with instructions to the common carrier to notify the proposed purchaser at the destination of the shipment, and for the purchase price drew on the purchaser of the property a draft payable to the bank purchasing' the same, to which draft was attached the bill of lading indorsed in due course. The draft was purchased by the bank by giving the drawer ■ credit for the net proceeds who checked against that credit in the regular way. The seller, shipper, and drawer was active in attempting to prevent the diversion of the goods from the claim of the bank to the claim of his subsequently attaching creditors. Held: That'the hank had a special property in the goods entitling it to maintain the replevin suit and to recover the amount of the draft against the drawee and purchaser who had attached for an alleged previously existing claim in so far as necessary to make one satisfaction of the amount of the draft.