127 Tenn.

Volume 127 — Tennessee Reports

64 opinions

127 Tenn. 1Campbell County v. Wright (1912)
1. COURT OF CIVIL APPEALS. Has no jurisdiction of cases Involving constitutional questions, whether appealed from circuit or chancery court. The court of civil appeals has no jurisdiction of cases involving] constitutional questions, whether the cases be appealed from the circuit or chancery courts. (Post, P. G.) Acts cited and construed: Acts 1907, ch. 82, sec. 7; Acts 1911, ch.i 419. Case cited and approved: Railroad v. Byrne, 119 Tena., 278, 325-. 329. 2. SAME. Same. Has no jurisdiction of cases involving constitutional questions except to transfer them to supreme court. ■Where a case involves a constitutional question, the court, of civil appeals has no jurisdiction, except to transfer the case to the supreme court; and this course should he taken by that court whenever it appears in any case in that court that any question involving the constitutionality of a legislative act is bona fide made and relied on therein. (Post, p. 6.) Acts cited and construed: Acts 1907, ch. 82, sec. 7; Acts 1909, ch. 192. 3. SUPREME COURT. Has jurisdiction, by certiorari, of case involving a constitutional question appealed to court of civil appeals and decided by it instead of transferring case to supreme court. Where the court of civil appeals erroneously assumed jurisdiction of an appealed case involving a constitutional question, and determined the case, instead of ordering it to be transferred to the supreme court, as required by statute in such cases, its error in failing to enter the order of transfer gives the supreme court jurisdiction, upon certiorari, to review the case as upon appeal to that court (Post, pp. 6, 7.) Acts cited and construed: Acts 1909, ch. 192.
127 Tenn. 8Gleason v. Prudential Fire Insurance (1912)
1. APPEAL. Concurrent finding of master and chancellor is conclusive, if sustained by any evidence. Tlie concurrent finding of the master and chancellor will be held to he conclusive on appeal, where there is any evidence to sustain it. (Post, pp. 13, 15.) 2. FIRE INSURANCE. Nonpayment of premiums avoids policy where it Is so stipulated in the policy and premium notes. Where a fire insurance policy and the premium notes provided that the failure of the assured to pay any premium note when due shall cause the policy to be lapsed, suspended, null, and void, the assured’s failure to pay premiums as stipulated will avoid the policy and render it nonenforceable. (Post, pp. 14, 15.) Cases cited and approved: Dale v. Insurance Co., 95 Tenn., 38; Ressler v. Insurance Co., 110 Tenn., 411; Insurance Co. v. Galbraith, 115 Tenn., 471. 3. GENERAL CREDITORS’ BILL. Against Insolvent corporation will be sustained in behalf of intervening creditors, though complainant failed to establish his claim. The status of a general creditors’ bill against an insolvent corporation cannot be affected by the ultimate decision against the merits of the complainant’s demand, where other creditors intervened. Therefore, where one, claiming to be creditor of an insolvent fire insurance company by reason of an alleged loss under a policy, filed a general creditors’ bill against said company, but failed to establish his claim as a creditor, such bill will be sustained as a general creditors’ bill where other creditors intervened and established their claims. (Post, pp. 15-17.) 4. MUTUAL ASSESSMENT FIRE INSURANCE.' Companies have no capital stock; cash premiums and premium notes constitute their assets; members cannot recover cash nor avoid notes,, when. Mutual assessment fire insurance companies have no capital stock. The cash paid in for premiums and the premium notes constitute their assets, and the policy holders or members sustain a I-relation to the company very similar to that of stockholders:' and hence, upon the insolvency of such company, a policy holder cannot recover premiums paid in or avoid premium notes, so long as the company has outstanding debts. (Post, pp. 18, 19. V- Acts cited and construed: Acts 1907, ch. 461. Case cited and approved: Gleason v. Insurance Co., 2 Higgins 376. t. SAME. Insolvency and appointment of receiver terminates outstanding policies. Upon the insolvency of a mutual assessment fire insurance company and the appointment of a receiver for it upon that ground,' its outstanding policies are canceled by operation of law, and subsequent losses under such policies are not liabilities enforceable against the receiver, regardless of the payment of premiums and the period of its existence. (Post, pp. 19-22.) Cases cited and approved: Commonwealth v. Insurance Co., 119 Mass., 45; Taylor v. Insurance Co., 46 Minn., 198; Doane v. i. .Insurance Co., 43 N. J. Eq., 522. 6. FIRE INSURANCE. Failure of local agent and adjuster to-furnish -blanks for proof- of loss as promised, is a waiver of con-, ditton as to time limit of proof. .Where the Joc^l.agent and the, .adjuster of a fire insurance company promised to furnish the insured, with blanks on which to make, .proof of hip loss, the failnre to furnish the Insured such blanks,within .the time.stipulated by the policy is f waiver of . the condition requiring the insured .to make pi;opf of, lops within that time. (Post, pp. 23-25.). cited,, and, Insurance Co. y. Wiggington, 8$ 7. SAME. Requirement of policy as to time limit for filing proofs of loss is superseded by- court’s order for filing and proving claims under general creditors’ bill.. 'Where a fire insurance company became insolvent and a receiver was, under a general creditors’ bill, appointed, upon the ground of such insolvency, after the insured suffered a loss, but before the time for filing proofs had expired, and the court fixed a time within which all creditors were required to file petitions establishing their claims, that order superseded the requirement of the policy a3 to the time limit of filing proofs of Ios3. {Post, pp. 25-27.) 3. SAME. No action on policy misdescribing location of property intended to be insured; remedy by reformation of policy. Where, by mistake, a fire policy erroneously located the' property intended to be insured, the insured cannot maintain, an action upon the policy for the loss of property burned in a locar tion other than that described in the policy; but the remedy of the insured is to seek a reformation of policy. {Post, pp. 27, 28.) 3.. SAME. Policy to husband and wife on her real property is valid; for he has an insurable interest in her such property. A policy in a fire insurance company, issued, to husband and wife on her real property held by her as a general estate, entitles them to recover for a loss under the policy; for the husband has a- freehold estate and other rights in his wife’s land, held by her as a g^aaral estate giving him an insurable interest therein. {Post, pp. 28, 29.) Case cited and approved: Tyree v. Insurance Go., 66 L. It. A, 657. 10. SAME, lilncontradicted testimony of an unimpeached litigant must' be- accepted as true. In an action against an insurance company, where the testimony of the insured was in no way impeached, nor was there any attack made on his character, his testimony as- to the facts with reference to the issuance of the policy and-notice of ma- . turity of premium note must be. accepted as true) when stand» * img uncontradicted. {Post, p. 26.) 11. SAME. Agent’s agreement to give notice of maturity of premium note waives forfeiture for its nonpayment at maturity, where no notice was given. Where the agent of an insurance company, for the purpose of inducing the insured to accept a fire policy, agreed that the company would give him reasonable notice of the maturity of a premium note, such agreement, being a part of the consideration of the contract, will prevent the insurance company from declaring or insisting on a forfeiture of the policy for the nonpayment of such note, when no notice. was given. (Post, pp. 29-31.) Case cited and approved: Alexander v. Insurance Co., 67 Wis.. 422.
127 Tenn. 32Hamon v. Foust (1912)
1. EVIDENCE. Discharge in bankruptcy is a decree or judgment of federal court, and must be certified how, when offered as evidence in our State courts. A discharge in bankruptcy is nothing more than a decree or judgment of the federal court granting it, and, when offered in evidence in the courts of this State, it must be proved in the same manner as any other judgment or decree; and, therefore, where a paper purporting to be a copy of such discharge was merely certified by the clerk of the federal court granting same, instead of being attested by such clerk, together with a certificate of a judge, chief justice, or presiding magistrate, that the attestation is in due form of law, as required by our statute (section 5580 of Shannon’s Code)', it was properly excluded. (Post, p. 34.) Code cited and construed: Sec. 5580 (S.); sec. 4548 (M. & V.); ■sec. 3795 (T. & S. and 1858). 2. SAME. Same. Judgments or decrees of federal courts sitting, within this State must be certified as those of federal courts sitting in other States. A judgment or decree of a federal court sitting within this State must be proved like the judgment or decree of a federal court sitting in another State, as required by section 5580 of Shannon’s Code, and not as prescribed by section 5579 thereof, for domestic judgments; for said section 5580 applies to federal courts without making any exception in favor of federal courts sitting within this State. (Post, pp. 34, 35.) Code cited and construed: Secs. 5579, 5580 (S.); secs. 4547, 4648 (M. & V.); secs. 3794, 3795 (T. & S. and 1858). Cases cited and disapproved: Turnbull v. Payson, 95 U. S., 418; Conkey v. Conder, 137 Ind., 444; Thomas' v. Owen, 68 Kan., 816; Womack v. Dearman, 7 Port. (Aja.), 613.
127 Tenn. 36Wood v. Sewanee Coal, Coke & Land Co. (1912)
1. LAND LAWS. Entry Is not made special or notorious by survey, or cal! for another survey. 'The survey of an entry does not make it special or notorious, nor does a call in an entry for another survey do so. (Post, p. 38.) Case cited and approved: McEwen v. Coal & Land Co., 125 Tenn., 694. 2. SAME. Presumption that entries not In evidence are special is not available, where it Is in evidence, and where a survey, and not another entry, is called for. If it be granted there is a presumption that entries are special until introduced In evidence, and that calls in an entry to adjoin or begin on a former entry are prima facie good, as the «ntey called for will be presumed to be special, unless produced, *nch rule cannot avail, where the entry in qoeetíon im in.«¿j dence, and its eall is net for another entry, bat lor a. surrey. (Pos# pp. 38, 39.) Cases cited and doubted: Wallen v. Campbell, 2 Or, 32$; t. McGavock, 1 Yerg., 262; Coal Co. v, Scott, 121 Teta., S3.
127 Tenn. 40Keith v. State (1912)
1. CRIMINAL LAW. Character of accused, put in issue by himself, is a witness for or against,' as it is good or bad. (Where the accused puts in issue his character for peace, quietness, and good order, it is a -witness for him if a good character, and a witness against him if a bad character, by which is meant that character, when put in issue, is a circumstance or fact, to be considered in connection with all the other facts in the case, in endeavoring to reach a conclusion as to the guilt or innocence of the accused.- (Post, pp. 42, 43.) Acts 1911, ch. -32, cited. Cases cited and approved: Lea v. State, 84 Tenn., 403; State v. Collins, 5 Pennewill (Del.), 263. S. SAME. Same. Character of accused, whether good or bad, is defined. Character, as used in the criminal law with reference to the character of the accused, means his fixed disposition or tendency, as evidenced to others by his habits of life, through the manifestation of which his general reputation for the possession of a character, good or bad, is obtained; for the natural and reasonable inference is that a man will generally act in accordance with his character as the law of his life. (Post, pp. 43, 44.) 3.. SAME. Proof of character is restricted to general reputation. The proof of character, good or bad, is reí. icted to general reputation. (Post, p. 44.) Case cited and approved: Williams v. United States, 168 U. S., 382. ’ . 4. SAME. Accused as witness may be impeached by questions as to acts of moral turpitude. Where the prisoner is a witness in his own behalf, he may, on cross-examination, for the purpose of affecting his credit as a witness, be questioned about special acts of moral turpitude. (Post, p. 44.) Cases cited and approved: Zanone v. State, 97 Tenn., 101; Powers v. State, 117 Tenn., 363. 5. SAME. Proof of good character of accused is not limited to doubtful cases. Proof of good character of accused, upon the issue of guilt or innocence, is not limited to doubtful cases. (Post,' p. 44.) Cases cited and approved: Edgington v. United States, 164 U. S., 361; Daniels v. State, 2 Pennewill (Del.), 586. Case cited and overruled: Bennett v. State, 8 Humph., 118.
127 Tenn. 45Barnes v. Redmond (1912)
1. DESCENT AND DISTRIBUTION. Second cousin as only heir of a predeceased first cousin to intestate will inherit the share of his such parent in intestate's land where the next in degree of kinship surviving the intestate were his first cousins. Under the statute (Shannon’s Code, section 4163, subdivision 2, subsection c), providing that if an intestate die without issue, and his father and mother are both dead, his land shall be inherited by their heirs in equal degree, “or representing those in equal degree of relationship to the intestate,” where the next in degree of kinship surviving intestate were her first cousins, and the second in degree of kinship surviving her were her second cousins, the children and descendants of predeceased first cousins, the intestate’s second cousin, who was the only heir and representative of a predeceased first cousin, is entitled to the same interest in the intestate's land as though he were a first cousin, and takes the interest that would have descended to his parent, the predeceased first cousin, if he had survived the intestate; for the statute contemplates that, where an intestate’s parents both predeceased him, the heirs of each-parent shall take precisely as if both parents had survived the intestate, and then died intestate themselves. {Post, pp. 46-61.), Code cited and construed: Sec. 4163, subdiv. 2, subsec. c. (S.) £ sec. 3269 (M. & V.); sec. 2429, subdiv. 2 (T. & S. and 1858). Caaes cited and approved: Miller Wills, 2 Lea, 82; Alexander r. Wallace, 8 Lea, 571; Selby v. Hollingsworth, 13 Lea, 145, 147; Torrest ▼. Perch, 100 Tenn., 395, 396. S.- SAME. Proceeds of partition sale after-Intestate’s death go te heirs and not te distributees ef intestate, because the conver eios eecurred after his death. The proceeds of the sale of land in partition proceedings instituted. «tear ti* taiatetes’s ,lg s<mm of his heirs acsiast the others, will go to the intestate’s heirs In the proportion to the respective share of each in accordance with the statute (Shannons Code,' section 4163) providing how the land of an intestate shall descend or be inherited, and not according to the statute (Shannon’s Code, sections 4172, 4173) relating to the distribution of personal property; for the conclusive reason that the conversion of the land into personalty did not occur until after the death of the intestate, and there was no conversion, equitable or otherwise, before his death. (Post, pp. 51-53.) Code cited and construed: Secs. 4163, 4172, 4173 (S.); secs. 3268-3270, 3278, 3279 (M. & V.); secs. 2420, 2429, 2430 (T. & S. and, 1858). Case cited and approved: Ex parte Moore, 3 Head, 171. Cases cited and distinguished: Satterfield v. Mayes, 11 Humph., 59; Cowden v. Pitts, 2 Bax., 59; Wheless v. Wheless, 92 Tenn.,, 293; Wayne v. Pouts, 108 Tenn., 145.
127 Tenn. 54Myers v. Northcutt (1912)
1. WRIT OF POSSESSION. Cannot be awarded defendant upon mere dismissal of bill enjoining prosecution of forcible entry and detainer suit. In a suit to enjoin the defendant's prosecution of an action of forcible entry and detainer against complainant, in which the injunction was broadly issued without any terms being prescribed in the fiat therefor, the court cannot, upon the dismissal of the bill without prejudice, by a decree entered upon complainant’s own motion, properly award a writ of possession in favor of the defendant, for the reason that the defendant merely answered the bill without filing a cross bill, so that there was not, and, under the pleadings, could not, be any judgment or decree that defendant recover or be put in possession of the specific property. (Post, pp. 55, 66.) Code cited and construed: Sea 4727 (S.); sec. 3713 (M. & Y.); sec. 2997 (T. & S. and 1858). 2. INJUNCTIONS. Staying actions at law upon condition of'Confession of judgment, if injunction is finally discharged. A complainant, seeking to enjoin an action at law; including an action of forcible entry and detainer, should be required to confess judgment in such action as the terms of allowing the injunction, if it should be finally discharged. (Post, pp. 56, 57.) Case cited and approved: I-Iartman v. Hartman, 2 Shannon’s Cases, 488. 8. SAME. Same. If injunction is not modified so as to require Confession of judgment at law, or'cross bill was not filed, affirmative relief will be refused defendant, when. In a suit to enjoin the defendant’s prosecution of an action or forcible entry and detainer against the complainant, in which an injunction was granted without requiring a confession of judgment at law, the defendant may have the injunction modified or dissolved so as to require such confession of judgment, or may file a cross bill to obtain affirmative relief; but, where he fails to do so, he cannot complain because, upon dismissal of the injunction suit without prejudice, relief was denied him. Post, pp. 56, 57.J
127 Tenn. 58State v. Wheeler (1912)
1. BOUNDARIES. Words “corner tree, stone, stake, or other land or line mark” refer only to objects designating corners and indicating terminal points of lines; doctrine of ejusdem generis. The words “stone, stake, or other land or line mark,” as used in-the statute (section 6503 of Shannon’s Code) providing that “whoever shall .... destroy the corner tree, 'stone, stake, or other land or line mark of another’s land shall he imprisoned in the penitentiary,” etc., refer, under the doctrine of ejusdem generis, only to objects designating corners and indicating the terminal points of lines; for the words “or other land .or line marks” are not so distinctive, or so broad and general that they cannot be restricted to objects designating the corners of land, and the words “trees,” “stones,” “stakes” do not exhaust the list of objects that can serve to mark a corner of land. Code cited and construed: Secs. 6503, 6496, subsec. 12 (S.); secs. 5406, 5403, subsec. 12 (M. & V.); secs. 4654, 4652, subsec. 12 (T. & S. and 1858). Acts cited and construed: Acts 1867-68, ch. 57. 2. DOCTRINE OF EJUSDEM GENERIS. As a rule of interpretation in construction of statutes is stated. The doctrine of ejusdem generis is a rule of interpretation, as where in a statute general words follow special words, which limit the scope of such statute, these general words must be construed as applying to things of the same kind or class as those indicated by the preceding special words; but the rule is one of construction, and not of positive law'; and it follows that when the preceding special words exhaust the class, or the general words are so distinctive that they cannot, without doing violence to their meaning, or to the context, be confined within the scope of such special words, the rule does not apply. The rule is the same where the special words follow the gen&raj. wards, gp. 61t 62.^ Cases cited and approved: State v. Pollard, 124 Tenn., 127; State v. Fontenot, 112 La., 628; Covington v. McNickles, £7 Ky. (18 B. Mon.), 262. - ■
127 Tenn. 63Beatty v. Schenck (1912)
1. CHANCERY COURT. Oral testimony prevents re-examt nation of the whole matter of law and fact on appeal of a chancery case, when. The parties are not entitled, on appeal of a chancery case, to. have a re-examination of the whole matter of law and fact, where witnesses orally testified in open court, because such procedure is not according to the forms of the chancery court which requires the evidence of witnesses to be in writing or depositions, except in divorce causes and jury trials. (Post, pp. 64, 65.) Code cited and construed: Secs. 4887, 6272 (S.); secs. 3872, 5205 (M. & V.); secs. 3155, 4456 (T. & S. and 1858.) Case cited and approved: Hardin v. Stanly, 3 Yerg., 381. 2. SAME. Findings of chancellor, where jury was demanded and waived, are entitled to force of verdict, when. In a case in chancery, where a jury was demanded and subsequently waived, and the cause was heard by the chancellor, his findings are entitled to the forcé of a verdict, and, where the evidence is conflicting, cannot be disturbed, especially where the testimony, or much of it, was orally given upon examination of witnesses in open court (Post, pp. 65-67.) Cases cited and approved: Eller v. Richardson, 89 Tenn., 580; Sahlien v. Bank, 90 Tenn., 228; Cowan v. Manufacturing Co., 92 Tenn., 379; Toomey v. Atyoe, 96 Tenn., 373.
127 Tenn. 68Meredith v. First National Bank (1912)
1. :ÍUNftllN! STRATI ON. Power of chancery court to accept resignation of administrator and to appoint another in pending administration settlement suit. Under section 3973 of Shannon’s Code, the chancery court has authority, when it has cognizance of the settlement of an estate which an administrator represents, to accept his resignation, and appoint an administrator in his stead. Under section 3943 of said Code, the chancery court may also appoint an administrator after six months from an intestate’s death where no one will apply or can be procured to administer on his estate; and may appoint administrators for the special cases provided for under section 3954 of said Code. (Post, pp. 70, 71.) Code cited and construed: Secs. 3943, ,3954, 3973 (S.); secs. 3050, 3078 (M. & V.); secs. 2209, 2237 (T. & S. and 1858.) 2. MULTIFARIOUSNESS. Bill to recover double the> amount of usury paid to a national bank at different times and on different notes, loans, or transactions is not multifarious. Under the statute (Shannon's Code, section 6137), providing that “the uniting in' one bill of several matters of equity, distinct and unconnected, against one defendant, is not multifariousness,” the bill or suit in the nature of an action of debt to recover from the defendant, a national bank, double the amount of usurious payments made at different times and on different instrumenta or different transactions, is not multifarious. Post, pp. n, 72, 74.) Cbda cited and construed: Seo, $127 See* £479 .(M, A JT-J 5i •oo. ¿m IT., & S. and 1S5S). 3. USURY. Bill for its recovery stating amount and dates I* sufficient without stating particular notes or transactions. A bill in the nature of an action of debt to recover from a national bank double the amount of usury paid in excess of legal interest on different notes between the dates named, with allegations of the dates and amounts of the payments, and that they were paid in excess of legal interest, and knowingly received by defendant as such, gave the defendant sufficient notice of the complainant’s claim, for it was not necessary to state the particular notes or transactions in which the payments were made, that being a matter of evidence, {Post, pp. 71, 72,' 74.) Casé cited and approved: Guild v. Bank, 4 S. D., 666. 4. CHANCERY PLEADING AND PRACTICE. Bill stating cause of action is sufficient. All that is required of any bill is that, when fairly construed, it shall state a cause of action against the defendant. {Post, p. 74.) 6. SAME. Bill to recover from national bank double amount o> usury is demurrable for not alleging that it was knowingly received as such. A bill in the nature of an action of debt to recover from a national bank double the amount of usury paid in excess of legal interest is demurrable for not alleging that the usury in excess of legal interest was knowingly received by the defendant as such. {Post, p. 75.) I. SAME. Bill to recover usury alleging a lump sum without, dates or specific payments is demurrable, though connected with undemurrable parts. A bill in the nature of an action of debt to recover from a national1 bank double the amount of usury paid in excess of legal interest1 is demurrable for simply alleging that a lump sum was paid! as usury in excess of legal interest, without alleging dates and! specific payments; and the demurrer will be sustained, though' connected with other allegations as to usury which are not Üwurrabje, {Put, 12, »,). 7. SAME. Demurrer covering whole bill and not good as to ait of it will be overruled, unless it would narrow litigation to sustain it as far as good. As a general rule,-a demurrer covering the whole hill, if not good as to all of it, must be overruled, but where it will narrow the litigation, the court will sustain the demurrer to that part of the bill to which it is good, and will in other respects overrule it. {Post, pp. 75, 76.) Cases cited and approved: Riddle v. Motley, 1 Lea, 468, 473; Puckett v. Richardson, 6 Lea, 65; Parks'v. Railroad, 13 Lea, 9; Berry v. Wagner, 13 Lea, 599; Ballentine v. Pulaski, 15 Lea, 650. 8. SAME. Surplusage in a bill is not ground for demurrer. Where the matter to which the demurrer is directed is mere sur-plusage in the bill, both the surplusage and demurrer thereto must be disregarded as impertinent matters. {Post, p. 76.)
127 Tenn. 77Tennessee Central Railroad v. Binkley (1912)
X. RAILROADS. . Declaration sufficient to give defendant notice that suit for personal injuries is based on its nonobservance of statutory precautions. A declaration in an action against a railroad company for personal injuries resulting to plaintiff by being struck by defendant’s moving train, which alleges that “the defendant carelessly and negligently ran one of its engines and trains upon, against, and over plaintiff, whereby he was crushed, mangled, bruised,” etc., without specifically charging defendant’s failure to observe the statutory precautions, is sufficient to give the defendant notice that the suit is based on its failure to observe the statutory precautions prescribed and required by section 1574 of Shannon’s Code, in the operation of trains. (Post, pp. 80, 81.) Code cited and construed: Sec. 1574 (S.); sec. 1298 (M. & V.); sec. 1166 (T. & S. and 1858). Cases cited and approved: Railroad v. Pratt, 85 Tenn., 9; Railroad v. Davis, 104 Tenn., 442; Rapid Transit Co. v. Walton, 105 Tenn., 415; Railroad v. Crews, 118 Tenn., 64. 2. SAME. Must observe statutory precautions, though person on the track be drunk and asleep. A railroad company is required to observe or comply with the' statutory precautions prescribed for the operation of trains, even, where a person is drunk and asleep on its track, and for its; failure to do so, it is liable for the injuries to such person resulting from being struck by its train. (Post, pp. 81-88.) Code cited and construed: Secs. 1574-1576 (S.); secs. 1298-1300' (M. & V.); secs. 1166-1168 (T. & S. and 1858). Acts cited and construed: Acts 1853-54, ch. 33; Acts 1855-56, ch. 94. Cases cited and approved: Railroad v. Burke, 6 Cold., 50; Hill v. Railroad, 9- Heisk., 323; Railroad v. Wilson, 90 Tenn., 271. Case cited and overruled: Railroad v. Abbott,- MS., September Term, 1909. Cases cited as falling under the common law and not under tha statute: See opinion, page 82. Cases, cited as falling within the application of the statute: Railroad v. St. John, 5 Sneed, 526; and other cases in the opinion, page 83. 3. SAME. Plaintiff’s contributory negligence mitigates, but does not bar, damages resulting from'being struck by train without ■observance of statutory precautions. The contributory negligence of a person injured by being struck ¡by a moving train operated without the observance of, or compliance with, the statutory precautions and requirements to prevent accidents, does not bar all damages, but goes only in ¡mitigation of the damages. (Post, p. 86.) Cases cited and approved: Railroad v. Foster, 88 Tenn., 676; Patton v. Railroad, 89 Tenn., 378; Artenberry v. Railroad, 103 Tenn., 269; Rapid Transit Co. v. Walton, 105 Tenn., 419. 4. SAME. Same. Recovery for personal injuries must be the damages, mitigated by degree of contributory-negligence of Injured person. Where there is contributory negligence on the part of the person, injured by being struck by a moving train operated without the observance of, or compliance with, the statutory precautions and requirements to prevent accidents, the measure of the recovery should be the amount of the damages sustained, so reduced or mitigated that the amount recovered will' be a just demand,' considering the degree or extent of the contributory negligence of the injured party; and the determination of the amount of the recovery is for the jury, subject to the supervisory - power - of the trial and appellate courts to prevent excessive damages. (Posit,'p.' S6.Í,., " ' Cases cited and approved: Railroad v. Burke, 6 Cold., 50; Hill \ Railroad, 9 Heisk., 823; Railroad v. White, 5 Lea, 540; Railroad v. Foster, 88 Tenn., 676; Railroad v. Wilson, 90 Tenn., 271; Artenberry v. Railroad, 103 Tenn., 270. S. SAME. Evidence is stated and held to be sufficient to support verdict based on nonobservance of statutory precautions. In an action for injuries to a person by being struck by a moving train, the evidence is stated, and held to be sufficient to support a verdict based upon the fact that the train was operated without observing the statutory precautions for the prevention of accidents on railroads. {Post, pp. 88, 89.)
127 Tenn. 90Meredith v. American National Bank (1912)
1. STATUTES. Construction of a federal statute by supreme court of United States is binding on State courts. The construction of a federal statute, adopted by the supreme court of the United States, is binding on the State courts. (Post, p. 92.) 2. USURY. Penalty against national banks for receiving usury is double the whole interest and usury, and not merely double the usury. The act of congress (U. S. Rev. St., sec. 5198), providing for a penalty against national banks exacting usurious interest, au-thorir js a recovery of twice the amount of the entire interest paid, and is not limited to twice the sum by which the interest received exceeded the lawful rate. (Post, pp. 91-93.) . Case cited and approved: Bank v. Watt, 184 U. S., 151. Cases cited and overruled: Bobo v. Bank, 92 Tenn., 444; Bank v. Hunter, 109 Tenn., 91. 3. SAME. Penalty against national, banks for exacting and receiving usury is recoverable at once and before payment of debt. The act of congress (U. S. Rev. St., sec. 5198), providing a penalty against national banks for exacting and receiving usurious interest, is strictly a penalty statute, and the bank incurs the penalty when it exacts and receives the usury, and suit therefor is not postponed until the whole debt is paid; for the payment of the debtor’s obligation in full is p.ot a condition precedent to the institution of a suit for the recovery of the penalty. (Post, pp. 93-95.) Cases cited and approved: Stout v. Bank, 69 Tex., 384; Kinser v. Bank, 58 Iowa, 728; Bank v. Orchard, 43 Neb., 579; Bank v. . Trimble, 40 Ohio St, 629; Bank y. Karmany, 98 Pa., 65.
127 Tenn. 96Watts v. Gordon (1912)
1. CORPORATIONS: Unanimous act of quorum of directors in increasing salaries of officers is binding, without formal meeting and without minutes, when. Where the charter of a corporation provides that a majority of the board of directors shall constitute a quorum, the unanimous act or agreement of the requisite number of the directors to constitute a quorum in increasing the salaries of the officers will be binding upon the corporation, though there be no formal meeting of the directors, and no minutes of their action, when said directors are practically the sole owners of the stock of the corporation and there is no fraud in their action. (Post, pp. 99, 100.) 2. SAME. Same. Recordation in minutes is not essential, unless required by charter or statute. Recordation in the minutes of a corporation does not make the corporate act valid, but simply preserves the evidence of it, and is not essential unless required by the charter or a statute. (Post, pp. 100, 101.) 2. SAME. Quorum of directors and majorty of stockholders may increase the salaries of themselves as officers, if the corporation be solvent and there be no fraud, when. Where three directors, constituting a quorum of the board of directors of a corporation, and being the beneficial owners of the stock therein, agreed among themselves, at a casual meeting^ and without any formal meeting of the directors, and without potice to the other directors who never attended any meetings of the directors or stockholders, nor took any part in the management of the business, to raise the salaries of two of themselves as officers, while the corporation was solvent, such reasonahto increase of salaries was valid, in the absence of fraud. (Pott, pp. 101-104.) Case cited and.distinguished: Holmes v. Gilman, 138 N. Y., 869. 4. SAME. Funds appropriated to salaries of officers are not recoverable under doctrine of resulting trusts, where corporation was left solvent. "Where all the real stockholders and a majority and quorum of the directors of a corporation agree to a particular appropriation of the funds of the corporation for salaries to two of themselves as its officerá, and such appropriation leaves the corporation solvent, there is no misappropriation of the corporation’s funds which can he recovered under the doctrine of resulting trusts; for, in such case, no one can complain. (Post, pp. 104,196.) 5. SAME. May pay salaries of employees, at their request, by checks issued to their creditors who are not charged with notice of misappropriation, when. A corporation’s payment of the debts of its officers and employees by issuing, at their request, checks against its .funds, directly to the creditors, placing thereon the name of the employee for whose benefit the check is drawn, and charging the amount thereof to the employee’s account as a payment on salary, is not illegal; and the receipt of such check by the employee's, creditor is not notice to him that the check «mounted to an illegal misappropriation of the funds of the corporation. (Post, pp. 99, 100, 105.) Case cited and approved: Railroad v. Trust Co., 198 N; Y., 422.
127 Tenn. 107Mayor of Nashville v. Singer & Johnson Fertilizer Co. (1912)
1. DEMURRERS. BUI taken as true en demurrer to It The allegations of the bill must be taken as true when the ease stands on bill and demurrer. (Post, p. 110.) t. MUNICIPAL CORPORATIONS. Duty to keep streets unobstructed cannot be delegated so as to escape responsibility. A municipality cannot escape responsibility for an improper exercise of its duty te keep its streets and alleys unobstructed by a delegation thereof. (Post, p. 112.) Cases cited and approved: White v. Nashville, 2 Swan, 364; Memphis v. Adams, 9 Hebsk., 523, 524; McHarge v. Newcomer, 117 Tenn., 604. 3. SAME. Contract to remove dead bodies from streets, and for failure to pay a fixed sum as liquidated damages, does not indemnify city against damages resulting therefrom, when. Where the defendant’s contract with the complainant city to remove the carcasses of dead animals from the streets and alleys stipulated that, upon his failure to remove any dead body within six hours after notice, he should forfeit and pay to the city five dollars as liquidated damages, and he did neglect and fall to remove the carcass of a horse; and, seme twelve or thirteen hours after the expiration of the six hours, a traveler’s horse, attached to a vehicle, became frightened at the carcass and injured him, and he recovered damages against the city, it is held that the city's negligence in its primary and nondelegable duty to keep the streets (dean and to remove the carcass within a reasonable time after the death of the horse was the proximate cause of the injury, and the city could not recover ever against defendant and the surety en his bond for breach of contract, because said contract stipulated liquidated damages for said breach, and did not stipulate to indemnify the city against loss and damages sustained by it on account of said breach. (Post, pp, 110-112, 113, 114, 115, 116.) 4. PROXIMATE CAUSE. Act or omission which immediately causes or fails to prevent the injury. The “proximate cause” of an injury may, in general, he stated to be that act or omission which immediately causes or fails to prevent the injury; an act or omission occurring or concurring with another, where, had it not happened, the injury would not have been inflicted. (Post, pp. 114, 115.) Cases cited and approved: Deming v. Cotton-Press Co., 90 Tenn., 353; Railroad v. Kelly, 91 Tenn., 699; Telegraph Co. v. Zopfl, 93 Tenn., 369; Anderson v. Miller, 96 Tenn., 35; Light & Power Co. v. Hodges, 109 Tenn., 338; Pencil Co. v. Railroad, 124 Tenn., 71. 5. CHANCERY PLEADING AND PRACTICE. Bill to recover over against defendant for damages recovered from city for his breach of contract does not warrant recovery of liquidated damages stipulated for. Where the defendant breached his contract by his failure to remove a dead horse from the street, ;»ad the city was compelled to pay damages to one whose horse injured him from fright at the carcass so left in the street, and the city brought suit to recover over against defendant for such breach, but such recovery was refused, it could not then recover the liquidated damages of five dollars stipulated in the contract, because, the bill was not framed for sueb recovery. (Post, pp. 109, 110, 116. 117.) 6. PRINCIPAL AND SURETY. Obligation of surety Is very strict, and he Is not liable where his principal is not. It is axiomatic and fundamental that the obligation of a surety is very strict, and cannot he extended beyond the limits of his engagement, so that where the obligee in a bond shows no right of recovery against the principal on his conLract, there can be no recovery against the surety. (Post, pp, 109, 110, 116, 117. Cases cited and approved; Cross v. Scarboro, 6 Bax.,. 136; Hardi-son v. Yeaman. 115 Tenn.. 639.
127 Tenn. 118Vaulx v. Buntin (1912)
1. LEASE. Stipulation that lessee shall make improvements of the minimum value of a certain sum, or pay that sum as liquidated damages, is not a provision for a penalty, but for actual damages. Where the contract for the lease of certain land, Including a mansion house thereon, for the term of three years, stipulated that the lessee should pay five hundred dollars a year as rent and should during the first year place in the house permanent improvements of the minimum value of four thousand dollars; that, if he failed to do so, the lessors could, at their election, terminate the lease, on notice •within ten days after the expiration of the first year, in which event the lessee should pay one-third of the said four thousand dollars as stipulated damages; that, in the event the lease is not so terminated, then, if the lessee failed to make the said improvements during the second year, and the lessors, under the reserved power, terminate the lease, on notice within ten days after the expiration of the second year, the lessee should pay the lessors two-thirds of said four thousand dollars; that, if the lease is not so terminated at the end of the second year, and if the lessee failed to make' the improvements by the end of the lease, then the lessors shall-he entitled to recover from the lessee the full amount of four' thousand dollars, not as a penalty, but as liquidated damages, and the lessee breached the contract by his failure to make, the improvements, and the lease was not terminated by the lessor, it was held that the provision for the recovery of th*i four thousand dollars, or the specified parts thereof, for the' lessee’s failure to make the said improvements, was not a stipulation for a penalty, but for liquidated damages, which lessors were entitled to recover as compensation for the lessee’s failure to make the improvements; f«r, under the contract. the said sum oí four thousand dollars is the actual damage ■which the lessors are entitled to recover, and the provision for liquidated damages adds nothing to the recovery. The improvements contracted for are treated as part of the rent and in consideration of an option given the lessee to purchase the property; and the provision for the payment of said portions thereof was for the benefit of the lessee. 2. DAMAGES. Stipulated damages in excess of actual damages may not constitute a penalty; and will not, if no disproportion. , While an apparent excess of stipulated damages over actual damages is not conclusive of the question whether the stipulated damages constitute a penalty, stipulated damages will never he treated as a penalty where there is no disproportion, but practical equality, between the stipulated sum and the actual damages. (Post, p. 124.)
127 Tenn. 126Bennett v. Nashville Trust Co. (1912)
WILLS. Income of a legacy to be held and accumulated till minor legatee becomes twenty-five may be permitted by chan-cer)' to be currently used for education in a proper case. • Under a will giving a minor one. thousand dollars to be held by the executor for her with all accumulations until she attains the age of twenty-five years, when said sum with all accumulations is to be paid to her, the chancery court, acting in loco parentis or occupying the place of the testator and trust creator, will do what it conceives would have been done by the testator had he foreseen the situation and plight of his beneficiary, and Will grant permission to use currently the income of the trust fund for the completion of the education of such beneficiary whose intellectual promise, situation, and necessitous condition warrant it, where the fund wholly belongs to such beneficiary, and the grant of such relief will not affect the rights of any other legatee or beneficiary under the will; and it is error to dismiss such bill upon demurrer. Cases cited and approved: Marsh v. Reed, 184 Ill., 263; Denegre T. Walker, 214 Ill., 113; Knorr v. Millard, 52 Mich., 542; Matter of Potts, 1 Ashm. (Pa.), 340; In re New, 2 Chan. (Eng.), 534.
127 Tenn. 133Puryear v. Nashville, Chattanooga & St. Louis Railway Co. (1912)
1. CERTIORARI AND SUPERSEDEAS. Petition showing Insuf-j flcient excuse for failure to file petition for certiorari to remove case from court' of civil appeal into supreme court, within the forty-five day rule. Where a petition for the extension of the forty-five day rule, andj for leave to file a petition for certiorari and supersedeas In thej supreme court for the review of a judgment of the court of civil appeals averred that it was the purpose and intention of| counsel for petitioner to bring the case to the supreme court byj certiorari; but that the same was not done within the forty-flvej days for reasons stated in counsel’s affidavit attached to th«| petition, and averring that one of petitioner’s counsel of record' was young and inexperienced, and it was understood between! them that the other was to prepare the petition for the certiorari and supersedeas, assignments of error, and brief, and that suchi other counsel, for a considerable part of the time since the entry of the judgment, was unavoidably absent from the city, ■ and engaged in other important cases, and was unmindful that the time had expired; and where the petition for the certiorari and supersedeas, presented to the court with the petition for leave to file it, was signed and sworn to only by the counsel whose inexperience was alleged to show his incapacity to prepare such petition, assignments of error, and br.ief in support thereof, during the absence of the other counsel, upon motion to dismiss the petition for such extension and for leave to file the other petition for the certiorari, etc., it was held that the petition for such extension and leave was insufficient, and would be disallowed, because it showed negligence in forgetting the case, no diligence upon the part of either counsel, and, aeBBt for the indefinite absence of of fea tva sounael. reason for failure to file the petition for certiorari, etc., within the time of the rule. (Post, pp. 135-139.) 2. SAME. Petition to remove case from court of civil appeal* into the supreme court must be supported by brief which cannot be supplied by argument; citation of record and authorities. Under rules 14 and 15 of the supreme court, effective January 1, 1913, requiring that the brief and assignments of error in support of the petition for certiorari to bring a case from the court of civil appeals into the supreme court shall concisely state the points of law and fact relied upon for a reversal, without argument and elaboration, and with -'tation of the pages of the record and the authorities to suppc. «ach point, in one statement and in one place in the brief, and that an argument will not supply the place of a brief, it is held that a petition for such certiorari, consisting of thirty-three typewritten pages, made up of a statement of what the case is, extracts from the testimony, and an argument of counsel, for the purpose of showing alleged errors of the court of civil appeals, with citations scattered throughout the whole petition, is not supported by a brief at all, but by an argument; and, therefore, such petition is ( .sallowed, though the question was not raised or made by motion of the adversary party. (Post, pp. 139-141.)
127 Tenn. 142Cooper v. Bell (1912)
1. CHANCERY PLEADING AND PRACTICE. Fact of reiat'onship of attorney and client charged in bill and admitted in answer is erroneously submitted to jury as an issue. In a chancery suit by attorneys to recover compensation for professional services, it was error to submit to the jury an issue whether the relationship of attorney and client existed between the complainants and defendant, at the date of their alleged contract, where such relationship was alleged in the bill and admitted in the answer, it matters not' who tendered the issue, {Post, pp. 144-150.) Code cited and construed: Sec. 6285 (S.); sec. 5218 (M. & V.); sec. 4468 (T. & S. and 1858). Cases cited and approved: Wood v. Zeigler, 99 Tenn., 517; Burton v. Association, 104 Tenn., 416; McElya v. Hill, 105 Tenn., 319; Crisman v. McMurray, 107 Tenn., 469; Pile v. Carpenter, 118 ■ Tenn., 288. 2. ATTORNEY AND CLIENT. Relationship is extremely dell-' cate and .fiduciary, and the attorney will be held to the utmost good faith. The relationship of attorney and client is an extremely delicate and fiduciary one, so far as the duty of the attorney toward the client is concerned, and the courts jealously hold him to the utmost good faith in the discharge of his duty. {Post, p. 150.) Cases cited: Bank v. Hornberger, 4 Cold., 531; McMahan v. Smith, 6 Heisk., 167; Newman v. Davenport, 9 Bax., 538. 3. SAME. Attorney’s recovery is upon quantum meruit, and not on contract, where it is not fair, and is not understood by both in same sense. Where the attorney contracts with his client for further professional sei vices, the con trac t.whether oral or iu writing, must bft Just and reasonable and free fro® all exorbitancy, and its meaning and effect must be fully understood by the client, and must be understood by both of them in the same sense, and this must be clearly shown by the proof; otherwise, the attorney’s recovery of compensation must be upon the quantum meruit, .and not upon the terms of the contract. (Post, pp. 150, 151.) Cases cited and approved: Bank v. Homberger; 4 Cold.,- '53!; McMahan v. Smith, 6 Heisk., 167; Newman v. Davenport, 9 Bax., 538. 4. SAME. Contract for fee equal to one-half of secured reduction of decree for five thousand dollars required to produce Income to pay wife’s alimony Is unenforceable as unrea,son: able, when. Under a disputed contract to pay attorneys one-half of whatever reduction they might secure on a decree requiring their clien: to pay into court five thousand dollars to be lent out and the interest paid to his wife monthly, in order to discharge a lien on his land under a decree requiring him to pay his wife twenty five dollars per month as alimony during her natural life, with an expectancy of twenty-three years, under which contract tbe attorneys claim the sum of twenty-five hundred dollars upon the ground, that they procured a reversal and a dismissal of the wife’s case, and a divorce for their client (the husband), it was held that the amount of the fee was not fixed upon any sound or just' basis, and that such contract was unenforceable as being unreasonable and exorbitant; and it appearing that another attorney in the case was willing and ■ able capably to perform the identical services for two hundred and fifty dollars. (Post, pp. 151, 152.) 5. SAME.- Court is not bound by testimony as to value of services of attorneys, when. The court is not bound by what witnesses testify would be reasonable compensation to attorneys for certain professional services rendered, where the court does not agree with the judgment of such-witnesses.- (Post, p 152.) .. . .....>
127 Tenn. 154Nashville, Chattanooga & St. Louis Railway Co. v. Wade (1912)
FROM RUTHERFORD. Appeal from the Circuit Court of Rutherford County to the Court of Civil Appeals, and by certiorari from (he Court of Civil Appeals to the Supreme Court. — ■ John E. Richardson, Circuit Judge.
127 Tenn. 167Nashville, Chattanooga & St. Louis Railway Co. v. Davis ex rel. Davis (1912)
1. JUSTICE’S WARRANT. “Upon damages for personal Injuries under $500” is insufficient and void. While mere imperfections of statement in a justice’s warrant will not invalidate the proceeding, yet a warrant which merely notified the defendant railroad company that the suit was “upon damages for personal injuries, under $500,” without stating the time when, the place where, or the agency by which the personal injury was committed, is insufficient to give the defendant reasonable nbt'ice of what it‘ wds -Called upon to answer, and is void. ' • Case cited and approved: Railroad v. Flood, 122 Tenn., 56. 2. SAME. Not giving defendant reasonable notice of what he Is called upon to answer Is void in law. The underlying reason of the law requiring a justice’s warrant as the leading process in a suit to “contain a brief statement of the cause of action sufficient give the defendant reasonable notice of what he is called upon to answer” is that the defendant may come to trial prepared for his defense, and a warrant which does not, on its face, give such notice is void in law. (Post, p. 171.) 3. SAME. Voidness is not cured by appearance, trial, and verdict. Where a justice’s warrant is void for insufficiency, the entire proceedings thereunder are void, and the voidness of the warrant is not cured by verdict, though the defendant appeared and contened the suit, and verdict was rendered against him. (Post, 4. SAME. When void renders void everything done under it, and the Judgment. If the Justice’s warrant is void, then everything done under it is likewise void; for the warrant is the foundation of the suit and the Judgment, and, if there is no valid warrant, there can he no valid suit or judgment. (Post, p. 171.) Cases cited and approved: Parris v. Brown, 5 Yerg., 267; Wood v. Hancock, 4 Humph., 467; Manning v. Wells, 9 Humph., 746; Odell v. Koppee, 6 Heisk., 90; Watkins v. Kittrell, 3 Bax., 42; Railroad v. Flood, 122 Tenn.. 56, and citations. 5. SAME. Validity may be tested by motion in arrest of judgment in circuit court. The defendant may, by motion in arrest of judgment after verdict for plaintiff in the circuit court, properly raise the question of the validity of the justice’s warrant. (Post, p. 171.) Case cited and approved: Railroad v. Flood, 122 Tenn., 56. 6. 8AME. Defective statement of cause of action giving the required notice is cured by verdict for plaintiff. Mere defects, imperfections, and incorrectness of statement of the cause of action, in a justice’s warrant, where notwithstanding such as they may be, the warrant gives the notice required by law, are cured by verdict for plaintiff. (Post, pp. 171, 172.)
127 Tenn. 173Southern Ice & Coal Co. v. Alley (1912)
FROM DAVIDSON. Appeal from the Chancery Court of Davidson County. —John Allison, Chancellor. .
127 Tenn. 184Cumberland Telephone & Telegraph Co. v. Hartley (1912)
I. TELEPHONE AND TELEGRAPHS. In action for penalties, the evidence is stated and held to be too conflicting to justify peremptory instructions. In an action to recover penalties for the violation of the statute (Acts 1885, ch. 66, sec. 11, compiled in sec. 1842 of Shannon’s Code) requiring telephone companies to supply all applicants for telephone connection and facilities without discrimination or partiality, provided such applicants comply or offer to comply with the reasonable rules of the company, the evidence is stated and reviewed, and held to be too conflicting to justify a peremptory instruction for the defendant. {Post, pp. 187-198.) Acts cited and construed: Acts 1885, ch. 66, sec. 11 (compiled in sec. 1842 of Shannon’s Code)_. J. SAME. In an action for penalties, the evidence is stated and heid to be sufficient to support verdict for plaintiff. In an action for penalties, as stated in the first headnote, the evidence is stated and reviewed, and held to he sufficient to support a verdict for the plaintiff. (Post, pp. 187-199.) SAME. Use of residence telephone as a business telephone means a regular use, as distinguished from an occasional use. • The use of a residence telephone as ai business telephone, contrary to the rules of the company, means a regular, habitual, and substantial use, as distinguished from an occasional and incidental use. {Post, pp. 198, 198, 200.) 4. SAME. Classification of residence and business telephones, and higher rental for latter than for former; what is not a violation by renter of telephone. ■While a classification of telephones into residence telephones and business telephones may be properly made by the telephone company, and a larger rental may be demanded for the latter than for the former; yet an occasional and incidental use of the residence telephone for business purposes would not be a substantial breach of the classification, so as to entitle the company to the larger rental. (Post, pp. 198, 199.) 6. SAME. Company refusing to put in a residence telephone upon its mere apprehension that it may be used as a business telephone is guilty of discrimination, when. Where the applicant demands a residence telephone and tenders the amount of the rental required under the rules of the company, it cannot lawfully refuse to put in the telephone upon the ground of its apprehension that the applicant may use the telephone as a business telephone, where there is no evidence that he proposed or intended to do so; and such refusal is a discrimination against the applicant, where it appears that there were thousands of other residence telephones in the city used by the lessees in the same manner as the applicant proposed to use his. The time for the company to make its objection will be when the applicant uses his residence telephone as a business telephone. (Post, p. 199.) 6. CONSTITUTIONAL LAW. Presumption and construction in favor of constitutionality of laws. A law is presumed to be constitutional, and a construction in harmony with the constitution must be given, if possible, although not the most obvious or natural one. (Post, p. 200.) Case cited and approved: Manufacturing Co. v. Falls, 90 Tenn., 468, 469. 1. TELEPHONES AND TELEGRAPHS. Cumulative penalties are not recoverable for failure to furnish telephone upon demand; penalty for “each day’’ is only one penalty for each demand and suit; excessive fines or penalties violate the constitution. Under a statute (Acts 1885, ch. 66, see. 11, compiled in sec. 1842 of Shannon’s Code), imposing a penalty for “each day” the telephone company refuses telephone connection and facilities ■without discrimination or partiality, after compliance or offer to comply with its reasonable regulations, only one day’s penaltj can he recovered in a suit for the company’s such refusal to furnish telephone connection and facilities; because the expression “each day” means each day on which a demand is made, when that demand is refused after a reasonable time for compliance has elapsed; and the suit can be brought only for the one penalty incurred by the refusal of that particular demand; and to make the company liable for other penalties, other demands must be made, with a like wait of a reasonable time after each demand for a compliance with it, and for each refusal after each demand and like wait, a suit may be brought for the one penalty for each such refusal; for each penalty is a separate cause of action. The statute is remedial, and cumulative penalties are not recoverable under one demand; and a construction allowing such cumulative penalties would render the statute unconstitutional as creating excessive fines. (Post, vp. 200-204.) Acts cited and construed; Acts 1885, ch. 66, sec. 11 (compiled in sec. 1842 of Shannon’s Code). Constitution cited and construed: Art. 1, sec. 16. Cases cited and approved: Parks v. Railroad, 13 Lea, 1; Telephone Co. v. Telephone & Telegraph Co., 125 Tenn., 270, 281. 8. APPEALS. Case not remanded for new trial without giving plaintiff option to remit all above one penalty, when. Where the only error in the trial court was in giving a judgment for more than one penalty, it was error in the court of civil appeals to remand the case for a new trial without offering the the plaintiff the option of remitting the excess above one penalty, with interest from the date of the. judgment below. (Post, p, 204.) 9. SAME. Costs upon affirmance after remittitur; and upon reversal and remandment for new trial where remittitur is refused. Where the plaintiff below (the defendant in error in the supreme court) accepted the option of remitting the excess above one penalty, the judgment will be affirmed for the one penalty, and for all costs; otherwise, the judgment will he reversed, and the cause remanded for a new trial, and the costs of the appeal will be taxed to defendant in error. (Post, p. 204.)
127 Tenn. 205First National Bank of Murfreesboro v. First National Bank of Nashville (1912)
í, BANKS AND BANKING- Drawee fs (fSt íig-fef# tf&SI acceptance of check.- No liability attaches against the drawee tete, eetft it ih© ebock, (Poet, p, 212,) Aets cited and construed: Aets 1-896, 6h, 64, &©@, ÍS6, Case cited and approved; imboden v, Petrie, 1§ %m,f 666. 8, SAMÉ, Sami, Duty of drowcs when teeming *gl%t f&> collection of chock, Where a check Is remitted to tbs draw#© tete for eetieetie», its duty as coüofsting agent, which it also becomes fey eses mbit-tones, is to present the cheek for &6©§jst§4i§e 86d psyai-est;' fijpd its duty as drawee to the drawer i§ ©sly to pay fee etete-if the drawer, is fee áteme© of a seeeial-sgreemest, te suffietést fuads ea deposit to cover it (Pmt, pp, 211, MS.) Acts cited and construed; Aets 1166, eh, 64, sees, 128, if?, 166, 188, and 186, Cases cited and approved; Baste v. Saute, 9 Bax., 161) tete V, Cummings, 86 Tenn., 0lO; LowsSstein v. Bresler, 166 Al^t, 829 j. Bank v. Bank, 78 Md„ 877; Bank v, Keenan, 78 N, Q„ 1^6, 8, BILL* AND NOTES, Checks are bills ef exchange giving: drawees twenty-four hours for acceptance, A check drawn upon funds in a distant hank is a “bill Of exchange,” within the meaning of our statute (Aets l89Sy eh, 64,. sec, 136), giving the drawee Of a hill twenty-four hoars after-presentment in which to decide Whether or hot he will acsSpt the bill. (Post, pp. 214, 215, 218.) Aets cited and construed: -Acts 1809, eh. .94, secs. 120, 127, 186). 185, and 189, Case cited and approved; Bank v. Merritt, 7 Heisk., 190, 4. BANKS AND BANKING. What constitutes acceptance of check by drawee bank when also acting as collecting agent. Where the drawee of a check (a bank) is acting in the dual capacity of collecting agent of the holder and as drawee, thera can be no acceptance by delivery until the bills are passed through the books of the bank, charging the account of the drawer and crediting that of the remitting bank, and making a completed transaction. (Post, pp. 215, 216.) Case cited and approved: Bank v. Bank, 78 Md., 577. 5. BILLS AND NOTES. Essentials of acceptance by. delivery; when drawee is acting also as collecting agent. In view of the negotiable instruments law (Acts 1899, ch. 94), defining (in its general provisions preceding its first section) ^ “acceptance” to mean “an acceptance completed by delivery or notification,” where the drawee of a check is acting in the dual capacity of collecting agent of the holder and as agent of the drawer to pay, there can be no acceptance by delivery until the transaction is completed by delivery to the remitting bank in due course, or until there is notification. (Post, pp. 215, 216.) Acts cited and construed: Acts 1899, ch. 94, general provision preceding its first section. 6. BANKS AND BANKING. Stamping check “Paid” is not conclusive of acceptance, when; bank may discontinue custom of allowing overchecking, when. Where the drawee bank is acting in the dual capacity of collecting agent and as drawee, the stamping of a check as “Paid,” when - erased, is not conclusive of acceptance; and in the absence of' an agreement between the drawer and drawee for overchecking, 1and in the absence of the holder’s knowledge of and reliance upon the existence of a customer of overchecking, the drawee is not liable to the holder, because it was entirely within the option of the drawee to discontinue such custom at any time it saw proper. (Post, pp. 209, 216, 217, 218, 219.) Cases cited and distinguished: Bank v. Burkhardt, 100 U. S., 686; Oddie n Bank, 45 N. Y,, 735. an , 7. SAME. Drawee is not liable on checks taken by holder without promise of payment or acceptance. Checks taken by the holder without any promise of payment or acceptance by the drawee are without-.any consideration passing between them; and the holder cannot maintain an action against the drawee without acceptance, though the drawee was acting also as collecting agent of the holder. (.Post, p. 217.) 8. BILLS AND NOTES. Drawer’s signature to check is representation of funds. The drawer’s signature to his check is a representation by him to all subsequent holders that the drawer has sufficient funds on deposit with the drawee to pay it, and that the drawee would accept and pay the check when presented. (Post, p. 217.) 9. SAME. Holder may sue drawer of check where drawee refuses payment. Where the drawee refused payment of a check because the drawer had no funds deposited with the drawee, the holder may sue the drawer upon the check. (Post, pp. 217, 218.) 10. SAME. Acceptance of drawer's check is not payment, when. The acceptance of checks by the holder does not extinguish the drawer’s indebtedness to him. (Post, pp. 218, 219.) 11. SAME. Effect of presenting check to drawee bank where drawer has no funds. The presentment of a check to the drawee bank, where the drawer has no funds on deposit with which to pay it, amounts to no more than a request by the drawer for the drawee to become his accomodation indorser for the amount, which request the drawee may grant, and thus create an overdraft upon the account of the drawer; and it may refuse the request without making itself liable to the holder. (Post, p. 218.) 12. SAME. Checks may, by agreement, be remitted to drawee for collection. Where both the holder and drawer of a check agreed with the remitting bank that remittances might be made directly to the drawee bank, they cannot complain that such was done. (Post, pp. 208, 209, 21^ 211, 219,).
127 Tenn. 220State ex rel. Conner v. Herbert (1912)
1. HABEAS CORPUS. Later petition raising no new ¡sues not raised in former petition. The former petition for a writ of habeas corpus, decided adversely to the petitioner, is compared with a later second petition alleging the presentation of certain new issues not raised and adjudicated in the former petition, and it is found and held by the court that no new issues are presented or raised in the later petition. (Post, pp. 228-237.) 2. SUPREME COURT. Power to enforce its final judgments and to protect them from interference. The supreme court' of Tennessee has inherent power, as a constituent part, to enforce its final judgments and protect them from interference, and such power is recognized and guaranteed by statute (Shannon’s Code, section 5911, subsecs. 3, 4, and 6 and section 5912, giving that power to all. courts, and section 6336, authorizing the supreme court to issue all writs and process necessary to enforce its jurisdiction). (Post, pp. 237-239.) Code cited and construed: Secs. 5911 (subsecs. 3, 4, and 6), 5912, 6336 (S.); secs. 4874 (subsecs. 3, 4, and 6), 4875, 5253 (M. & V.), secs. 4099 (subsecs. 3, 4, and 6), 4100, 4503 (T. 1 & S. and 1858). Cases cited and approved: King v. Hampton, 3 Hay., 59: Newman v. Scott Co., 1 Heisk., 787; Wilburn v. McCollom, 7 Heisk., 267, 271; Motions v. Curry, 12 Heisk., 51; Caruthers v. Caruthers, 2 Lea, 71; State v. Memphis, 2 Shannon’s Cases, 185; Wyler v. Blevins, 113 Tenn., 528. 3. SAME. Same. Power while sitting in one division to prevent interference with its process in another division. The fact that the constitution and statutes require the supreme court to hold separate sessions at certain places in the three grand divisions of the State does not preclude the court, while sitting in one division, from preventing interference with its process issued in another division; for the supreme court is the one and indivisible court of the whole State, and has power as such throughout the State, and wherever it may be sitting, it will, under its broad powers, issue its writs into any county where it may be necessary to protect its process from interruption, or to remove obstructions thrown in the way of its execution. (Post, pp. 239, 240.) 4. SAME. Same. Same. May exercise its appellate jurisdiction by certiorari and by original proceedings in aid of the appellate jurisdiction. Under the constitutional provision (art. 6, sec. 2) conferring upon the supreme court appellate jurisdiction only, with “such other jurisdiction as is now conferred by law on the present supreme court,” the court’s jurisdiction may be exercised by writ of certiorari, as well as by writ of error or appeal, or appeal in the nature of a writ of error, and by original proceedings in aid and enforcement of its appellate power at every stage, from their inception to their completion. (Post, pp. 240, 241) Constitution cited and construed: Art. 6, sec. 2. Cases cited and approved: Railroad v. Campbell, 109 Tenn., 640; étaples v. Brown, 113 Tenn., 639. Cases cited, approved, and distinguished: Miller v. Conlee, 5 Sneed, 432; State v. Bank, 5 Sneed, 573; Ward v. Thomas, 2 Cold., 565; State v. Elmore, 6 Cold., 528; Aldrich v. Pickard, 12 Lea, 657, 658; State v. Gannaway, 16 Lea, 124, 128; Railroad v. Byrne, 119 Tenn., 278, 320. 5. SAME. Same. Same. Same. May by certiorari assume jurisdiction before final decision of lower court acting illegally. Under our statute (Shannon’s Code, section 4853), authorizing the writ of certiorari whenever an inferior tribunal, board, or officer exercising judicial functions “is acting illegally,” final decision or judgment in such inferior court is not prerequisite to the issuance of the writ of certiorari, through which the supreme court may assume jurisdiction, and deprive such offending court of the case and restrain it from further action in respect thereof. (Post, pp. 241, 242.) Code cited and construed: Sec. 4853 (S.); sec. 3838 (M. & V.); sec. 5123 (T. & S. and 1858). Cases cited and approved: Beck v. Knabb, 1 Ov., 56; May v. Campbell, 1 Ov., 61, 63; Kendrick v. State, Cooke, 474; Railroad v. Campbell, 109 Tenn., 640. 6. SAME. Same. Same. Same. Same. May by certiorari quash and restrain second habeas corpus proceedings before final decision in lower court acting without jurisdiction. Where the supreme court has, adversely to the petitioner or prisoner, finally determined a habeas corpus proceeding, and the judge of a criminal court has assumed jurisdiction of a second habeas corpus proceeding upon a petition alleging newly discovered facts as the grounds therefor, when said alleged new grounds are but variations of those already passed on by the supreme court, and in substance the same, the supreme court has jurisdiction by writs, of certiorari and supersedeas to take said second habeas corpus proceedings from such inferior judge into the . supreme court to the end that they may he quashed, nnd that further proceedings before said judge may he restrained; and it was so held where the object of the said second proceeding was to prevent extradition of the petitioner or prisoner authorized by the prior judgment of the supreme court. (Post, pp. 242-247.) Code cited and construed: Sec. 5541 (S.); sec. 4511 (M. & V.); sec. 3761 (T. & S. and 1858). Cases cited and approved: State v. Galloway, 5 Cold., 336, 337; State v. Taxing District, 16 Lea, 240, 249, 250; State, ex rel., v. McClellan, 87 Tenn., 52; Vanvabry v. Staton, 88 Tenn., 334; McLendon v. State,' 92 Tenn., 520, 524. 7. SAME. Same. Same. Same. Same. Same. On granting certiorari to quash second habeas corpus proceedings, supreme court will direct issuance of capias for arrest of prisoner. Where the supreme court grants the writ of certiorari to quash and supersede the second habeas corpus proceedings in an inferior court, which interfere with a previous judgment of the supreme court, under which judgment extradition of the prisoner was authorized, the supreme court will direct the issuance of a capias for the arrest of the prisoner and his return to the custody from which he was wrongfully taken in such second habeas corpus proceedings. (Post, p. 247.) Cases cited and approved: State, ex rel., v. Endsley, 122 Tena* 647; Spencer v. State, 125 Tenn., 64, 79.
127 Tenn. 248Cumberland Lodge, No. 8, Free & Accepted Masons v. Mayor of Nashville (1912)
FROM DAVIDSON, Appeal from the Chancery Court of Davidson County. —John Allison, Chancellor.
127 Tenn. 267Dunn v. State (1912)
1. BILLS OF EXCEPTIONS. Must be filed during the term or within court's extenson inder statute. Where a bill- of exceptions iras not filed by the accused until after the adjournment of the term at which he was tried and convicted, and no time was granted by the court during the term extending the time for filing the same beyond the term, it was unavailable to present, on appeal, matters arising at the trial, and not a part of the record proper. (Post, pp. 271-273.) 'Acts cited and construed: Acts 1835-3S, ch. 6, sec. 4; Acts 1899, chs. 40 and 275. Code cited and construed: Secs. 6056, 6057 (S.); sec. 4991 (M. & V.); secs. 4218, 4219 (T. & S. and 1¿58). Cases cited and approved: Clark v. Lary, 3 Sneed, 79, 80; Mc-Gavock v. Puryear, -6 Cold., 34, and citations; Sims v. State, 4 Lea, 357, 359; State v. Brockwell, 16 Lea, 683, 685; citations in note 14 under sec. 4693 of Shannon’s Code; Patterson v. Patterson, 89 Tenn., 151, 154; Bettis v. State, 103 Tenn., 339; Railroad & Telegraph Cos. v. Simmons, 107 Tenn., 319; Ray v. State, 108 Tenn., 283; Hinton v. Insurance Co., 110 Tenn., 113; Rhinehart v. State, 122 Tenn., 698. 2. NEW TRIALS. Motion for, must be made during term, but may be continued. While the motion for a new trial must be made at the trial term, yet it may be continued to the next term and be then disposed of. (Post, p. 273.) Cases cited and approved: McGavock v. Puryear, 6 Cold., 34, 39; Williamson v. Anthony, 4 eisk., 78. S. BILLS OF EXCEPTIONS. Time for filing ¡3 not extended by motion for new trial. The making of a motion for a new trial by the accused does not affect or extend the time for making and filing a bill of exceptions. (Post, p. 274.) Code cited and construed: Sec. 4693 (S.); sec. 3682 (M. & V.); sec. 2968 (T. & S. and 1858). Cases cited and approved: Muse v. State, 106 Tenn., 181, 183: Railway & Light Co. v. Trawick, 118 Tenn., 273, 275. 4. NEW TRIALS. Motion for, when undisposed of, is continued by operation of law. The motion for a new trial, when left undisposed of at the close of the trial term,- is continued by operation of law, as part of the undisposed of business of the term, appearing on the records of the court. (Post, p. 274.) 5. BILLS OF EXCEPTIONS. Become a part of the record, when. The bill of exceptions does not become a part of the record until it is written, signed, and filed, and is thus completed. (Post, p. 274.) 6. JUDGMENTS. Entered on verdict when verdict Is recorded, unless motion for new trial is sooner made, and then after disposition of such motion. The judgment is usually entered on the verdict when the verdict is recorded on the minutes, unless a motion for a new trial be made before that occurs; and if such motion be made before judgment, the judgment remains unentered until the motion-is finally disposed of, even though that does not occur until the succeeding or some subsequent term. (Post, pp. 274, 275.) Cases cited and approved: G-reenfield v. State,- 7 Bax., 18, 19; Railroad v. Ray, 124 Tenn., 16. ... SAME. Judgment on verdict may be entered at any subsequent term. The judgment on the verdict may be lawfully entered at a subsequent term, whether the failure to enter it at the trial term was the result of mere inadvertence or misprision, because the mo tion for a new -trial remained undisposed of. (Post, p. 275.) Cage cltet} and approved: Greenfield v. State, 7 Bax* IS, 19, 8. SAME. Judgment before motion for new trial is suspended by such motion until final disposition thereof; better practice tp set aside judgment. Where the judgment is entered at the trial term, before the entry of a motion for new trial, such motion, when made and entered, if done within thirty days after the entry of the judgment, sus* pends the judgment until the motion is finally disposed of; and, if the motion is overruled, the judgment stands as of the date of the overruling of such motion, or of its disposition, whether overruled or sustained; and the continuance of the motion into the next .term, and the adjournment to the next term, carries with it, as unfinished business of the court, the suspended judgment, though it would he better practice formally to set aside the judgment upon the entry of -the motion for now trial. Post, p■ 275.) Case cited and approved: Railroad v. Ray, 124 Tenn., 16. >■ 9. BILLS OF EXCEPTIONS. Necessary in motion for new trial when continued to the next term. Where the motion for a new trial is not acted on during the trial term, but is continued and goes over to the next term, the trial judge cannot act upon the matters that go to to make up the bill of exceptions, unless such matters were embraced in a bill of exceptions made and filed during the trial term, or within the court’s extension of time under the statute (Acts 1899, ch. 275). (Post, pp. 275, 276.) 10.SAME. Must be made and filed within what time; general rules stated. * The hill of exceptions may be lawfully made and filed during the following periods: (1) Any time during the ordinary, trial term, in the absence of an order of the court fixing a shorter period within the term; (2) during such special period fixed by the court within the ordinary term, if there he any such period so fixed; (3) during any period, not exceeding thirty days after the adjournment of the term, which the judge may grant by an order on his minutes prior to adjournment; (4) during any such extension of the term, while such extension is still running and not ádjourned to court in course; (5) or within thirty days after the final adjournment supervening the extension, if .such , time be granted by the judge by order on his minutes before final adjournment. (Post, pp. 276, 277.) 11. SAME. Verdict is conclusively presumed to be justified by the evidence, in the absence of. In the absence of a bill of exceptions, the court must conclusively presume that the evidence justified the verdict. (Post,p. 277.) Case cited and approved: Bundren v. State, 109 Tenn., 225, 230. 12. SAME. Paper purporting to be bill of exceptions, when fatally , defective, will not be examined to ascertain innocence or guilt of prisoner. Where the paper purporting to be the bill of exceptions is fatally defective as such, the supreme court will not examine such paper for the purpose of ascertaining the guilt or innocence of the prisoner; and the previous practice of doing so in some cases is condemned and disapproved; for the better practice is to act on the sound principle that, if the paper is not a part of the record, it cannot be looked to for any purpose. (Post, pp. 277, 278.) ¿S. SAME. May be valid as to newly discovered evidence on motion for new trial, though invalid as to evidence on the trial. Where the motion for a new trial was continued to the next term, and then disposed of, and the bill of exceptions purports to contain the testimony introduced at the trial, together with the newly discovered evidence heard on such motion, and for which a new trial was sought; and where the bill of exceptions was not made and filed in time to preserve the testimony introduced at the trial, but was in time to preserve the evidence and ruling on the motion for new trial, such evidence on the hearing of such motion will be reviewed, but the balance of the bill of exceptions will be treated as surplusage. (Post, pp. 279, 280.) 14. AGE OF CONSENT LAW. No conviction where girl in question , Was a bawd, lewd, or kept female. In a prosecution for the violation of the age of consent law, proof ' that the girl in question was a bawd, lewd, or kept female at the ¡ time the defendant is alleged to have had criminal relations with her is a complete defense. (Post, pp. 280, 281.)
127 Tenn. 282State v. Stephens (1912)
1. INDICTMENTS. Constitution leaves it to legislature to prescribe what shall constitute the accusation and the form of the charge. The constitutional provision (art. 1, sec. 9), guaranteeing to the accused the right "to demand the nature and cause of the accusation against him,” leaves it to the legislature to prescribe what shall constitute the accusation, and' in what form the crime shall be charged. (Post, p. 284.) Constitution cited and construed: Art. 1, sec. 9. Case cited and approved: Sizemore v. State, 3 Head, 27. 2. SAME. Indictment for larceny of money that is sufficient in description of the money. Under the constitutional provision (art. 1, sec. 9), guaranteeing to the accused the right “to demand the nature and cause of the accusation against him,” and under the statutory provisions (Shannon’s Code, sec. 7077) prescribing that the statement of facts shall be in ordinary and concise language without prolixity or repetition; (Shannon’s Code, sec. 7078) providing that in no case are the words not essential to constitute the offense necessary or proper; (Shannon’s Code, sec. 7082) providing that indictments for offenses designated by law which are offenses at the common law are good, if the offense is charged or described according to the common law; (Shannon’s Code, sec. 7083) providing that, on the other hand, in all cases where the common law prescribes particular and technical language to describe a Code offense, it is sufficient to describe it according to the general rules in that chapter of the Code; and (Shannon’s Code, sec. 7080), another section in the same chapter, requiring that the act or omission charged as the offense shall he stated .with such certainty as will enable the court to pronounce juda-xnent upon the conviction, according to the right of the case; where the indictment charged that the defendant did “unlawfully and feloniously take, steal, and carry away $400, good and lawful money of the United States, personal property of Berc Hammock,” upon motion to quash said indictment upon the ground that it did not describe the money alleged to have been stolen by denomination or otherwise, as required by law, it was held that the indictment was sufficient in the description of the money, and that nothing more was required by the con-situation and statute. (Post, pp. 284-291.) Code cited and construed: Secs'. 7077-7083 (S.); secs. 5943-5949 (M. & V.); secs. 5114-5120 T. & S. and 1858). Constitution cited and construed: Art. 1, sec. 9. Cases cited and approved: State v. Pearce, Peck, 66; Pyland v. State, 4 Sneed, 357; Millner v. State, 15 Lea, 180; State v. Hall, 2 Shannon’s Cases, 590; Givens v. State, 103 Tenn., 651; State v. Bonnine, at Knoxville, 1908; People v. Hunt (Ill.), 36 L. R. A. (N. S.), 933, 939, 940, 941. Cases cited and distinguished: State v. Longbottoms, 11 Humph., 39; Lewis v. State, 3 Heisk., 333.
127 Tenn. 292State ex rel. Pitts v. Nashville Baseball Club (1912)
1. STATUTES. Legislative bill materially amended In its caption becomes a new bill and must be thereafter passed upon its three readings, or it will be unconstitutional. Whenever the caption or title of a legislative bill is radically, materially, or substantially changed, it becomes a new title, the identity of the bill is changed, and it becomes a new bill, and it must be thereafter passed upon three separate readings on three different days, in order to become a valid and constitutional enactment. Therefore, where a legislative bill, whose .caption and body prohibited the playing of baseball on the Sab-hath, was, after its passage' on its second reading, amended in hoth its caption and body so as to include cricket and other •games played with ball, bat, or club, and was then passed upon 'Only one reading, it was not constitutionally enacted, and did, :not become a valid statute. (Post, pp. 297-301.) Acts cited and construed: Acts 18S5, ch. 147. Constitution cited and construed: Art. 2, sec. 18. Case cited and approved: Erwin v. State, 116 Tenn., 71. 2. STARE DECISIS. Decisions constituting rules of property, though erroneous, should not be disturbed. Decisions long acquiesced in, which constitute rules of property ®r trade, or upon which important rights are based, should not he disturbed, even though erroneous as original holdings. (Post, pp. 301-303.) Cases cited and approved: Sherfy v. Argenbright, 1 Heisk., 128; State v. Whitworth, 8 Lea, 594; Jourolmon v. Massengill, 86 Tenn., 81; Case Co. v. Joyce, 89 Tenn., 337; Wilkins v. Railroad, 110 Tenn., 422. 3. SAME. Decisions construing constitution and statutes should be followed, in the absence of cogent reasons to the contrary. Decisions construing the constitution and acts of the legislature should be followed, in the absence of cogent reasons to the contrary, inasmuch as it is of the utmost importance that our organic and statute law be of certain meaning and fixed interpretation. {Post, p. 303.) Cases cited and approved: Steedman v. Dobbins, 93 Tenn., 397; Judges’ Cases, 102 Tenn., 509. 4. CONSTITUTION AND STATUTES. Legislative and executive construction, long acquiesced in, will usually be accepted by the courts. The construction of a statute or the constitution, not emanating from judicial decision, but adopted by the legislative or executive departments of the State, and long accepted by the various agencies of government and the people, will be usually accepted as correct by the courts. {Post, pp. 303, 304.) Cases cited and approved: Richardson v. Young, 122 Tenn., 471; Kelly v. State, 123 Tenn., 516; Brown v. Sullivan Co., 126 Tenn, 689; Stuart v. Laird, 1 Cranch, 299; Martin v. Hunter, 1 Wheat, 304; Cohens v. Virginia, 6 Wheat, 264; Bank v. Halstead, 10 Wheat, 51; Minor v. Happersett, 21 Wall, 162. Case cited and distinguished: Telephone Co. v. Telephone Co, 125 Tenn, 278. STARE DECISIS. Doctrine may be invoked to prevent extension of criminal statute, but not to prevent its restriction or invalidation. While the doctrine of stare deeisis may be invoked and applied to prevent the extension of a criminal statute beyond its former construction where such extension would make unlawful what . was lawful under the former construction; but this doctrine cannot be invoked and applied to prevent the restriction or invalidation of a criminal statute, for the State has no vested or Important right in such former construction. {Post, pp. 364-WJ Acts cited and construed: Acts 1885, eb. 147. Cases cited and approved: People v. Tompkins, 186 N. Y., 413; Grubbs v. State, 24 Ind., 295; Lanier v. State, 57 Miss., 102. Cases cited and distinguish ed: Telephone Co. v. Telephone Co., 125 Tenn., 278; Hayes v. State, at Nashville, 1887. 6. SAME. Doctrine applies only to decisions directly upon point in issue. It is a familiar principle that the doctrine of stare decisis applies only with reference to decisions directly upon the point in issue or in controversy. (Post, pp. 307-309.) Cases cited and approved: Railroad v. County Court, 1 Sneed, 638; Clark v. Lary, 3 Sneed, 77; Henley v. State, 98 Tenn., 682; Gribble v. Wilson, 101 Tenn., 612; Arnold v. Knoxville, 115 Tenn., 195; Pollock v. Loan & Trust Co., 157 TJ. S., 429, 574. 7. STATUTES. Signatures of speakers create no presumption of regularity of passage, when one of the journals show the contrary. The signing of bills in open session by the speakers of the two houses is not conclusive as to the regularity and validity of their passage, where the journals of the two houses, or either of them, show a contrary state of facts; for it is thoroughly established that no presumption of regular and valid enactment of a statute will be indulged in where such presumption would contradict the affirmative showing of the journals. (Post, p, 309.) Gases cited and approved: Brewer v. Huntingdon, 86 Tenn., 732; Nelson v. Haywood Co., 91 Tenn., 596; Trading Stamp Co. v. Memphis, 101 Tenn., 181. Case cited and overruled: Hayes v. State, at Nashville, 1887. &. STARE DECISIS. Application of rules in headnotes 5, 6, and 7 in judgment to Acts 1885, oh1. 147, adjudging same to be unconstitutional. The oral decision in Hayes v. State, at Nashville, 1887, that Acts 1885, ch. 147, forbidding baseball and certain other games on the Sabbath, was constitutional, cannot be considered ad stare decisis, where the holding was based' on the éíí'óneous presumption that the signing of the bill by the speakers of the two houses was conclusive as to the regularity of the proceedings, and where the act created only a misdemeanor, and no property rights have grown out of the decision, and., where the fact that the act had been amended during thé second'and third readings in the senate was not passed upon, and such point was the sole point relied on in the instant case, the regularity of the passage of said act in the house only being attacked in said former case. (Post, pp. 304-310.) ¿>ee citations under headnotes 5, 6, and 7. 9. CORPORATIONS. Forefeiture of charter sought for violation of a certain statute will not be decreed for violation of other statutes and common law. Where the charter of an incorporated baseball club was sought to be forfeited on the sole ground that it had 'violated the statute (Acts 1885, ch. 147) forbidding Sunday baseball games, the forfeiture will not be decreed upon the ground that the club had violated other statutes and the common law respecting the observance of the Sabbath. (Post, pp. 309, 310.) ‘Acts cited and construed: Acts 1885, ch. 147. 10. SAME. Forfeiture of charter will not be declared under a small penalty statute, if no nuisance. Under the statute (Shannon’s Code, secs. 3029 and 3031), forbidding games and sports on Sunday, but not mentioning baseball and prescribing only a small penalty for its violation, and creating no indictable offense, such penalty is exclusive of other punishment, in the absence of the showing of a nuisance; and the charter of a corporation will not be declared forfeited for the mere violation of such statute. (Post, pp. 310, 311.) Code cited and construed: Secs. 3029, 3031 (S.); secs., 2289, 2290 (M. & V.); secs. 1723, 1724 (T. & S. and 1858). Acts cited and construed: Acts 1886, ch. 147. Cases cited and approved: State v. Lorry, 7 Bax, 96; Gunter Y. State. 1 Lea, 129; Parker v. State, 16 Lea, 476.
127 Tenn. 312Hawkins v. Hubbell (1912)
1. INJUNCTION. Action for wrongful suing out, must show malice and want of probable cause. In an action for the wrongful suing out of an injunction, nor brought on the bond, but against the individual, the complain ant must show malice and want of probable cause, as in actiom for malicious prosecution. {Post, p. 315.) Case cited and approved: Land & Mining C'o. v. Tarwater, 12r. Tenn., 601. 2. APPEALS. No review if no assignment of error. A subject on which no assignment of error has been made need not be considered on appeal. {Post, p. 315.) 3. CHANCERY PRACTICE. Master’s report must be responsive to the order of reference. Where a reference is made to the master requiring a report, among other things, whether complainant contracted for hands who declined to work for him because of the injunction, and as tc the amount of damages suffered by complainant as resulting therefrom, his report that no contract was shown was so fai responsive, but his further report that hands declined to work for complainant, and that he was thereby damaged a certain sum, was not responsive, and was therefore impertinent, and could not be lawfully noticed or received, or made the basis of a decree, and an exception thereto should have been sustained by the chancellor. {Post, pp. 316, 317.) 4. APPEAL AND WRIT OF ERROR. On appeal on exceptions, nothing else is before the court. On appeal or writ of error from the action of the chancellor on exceptions, nothing else is before the supreme court. {Post, pp. 317, 31S.) Case cited and approved: Allen v. Shanks, 90 Tenn., 359. 5. SAM?. Supreme court will not disregard a valid exception to master’s report simply because the chancellor did so. Where the chancellor erroneously disregarded a valid exception to the master’s report, and rendered a decree thereon notwithstanding the exception, the supreme court cannot do so, simply because the chancellor did so. (Post, pp. 318, 319.) 6. SAME. Objection that matter was not distinctly alleged in the bill cannot be made in the supreme court, if not made below when. Where a matter, not distinctly alleged in the bill, was treated by the chancellor and the parties without objection as if it were, as where an order of reference is made on such matter, sub mitted to by both parties, without objection made on the record, it must be treated as a construction of the bill on his point ac quiesced in by both parties and acted under, and it is too late t< make any objection on that aspect of the case in the supremi court. (Post, pp. 319, 320, 321.) 7. INJUNCTION. Speculative damages from failure to secure hands to run a farm resulting from injunction against its sale are not recoverable. Damages resulting from trouble, annoyance, and expense frora failure to secure hands to run a farm are purely speculative, and incapable of accurate estimation, or tracing to an injunction against a sale of the farm, and inferentially the standing timber. (Post, pp. 319, 320.) 8. SAME. Same. That was not legally the proximate cause of injuries. Nor can it be said, in a true legal sense, that the suing out of such injunction was the proximate cause of such alleged injuries. (Post, p. 320.) 9. TORTS. Wrongdoer is liable for all damages resulting directly from wrongful acts and that might have been reasonably anticipated. The general rule in actions for torts is that the wrongdoer is'Hhbli for all injuries resulting directly from the wrongful acts, whether they could or could not have been foreseen by diinv provided the particular damages in respect to which he proceeds are the legal and natural consequences of the wrongful act imputed to the defendant, and are such as, accordingly to common experience and the usual course of events, might have been reasonably anticipated. {Post, p. 320.) 10. INJUNCTION. No recovery of damages upon complainant's own testimony of failure to obtain hands on account of injunction, when no names were given. A complainant claiming that he was prevented by a wrongful injunction from obtaining the kind of laborers he wanted and needed for certain work cannot recover damages upon his own testimony, consisting of broad general statements as to his failure to obtain such laborers, without giving any names, so that his testimony could be sustained or refuted, as the case might he; for a man coming into court with such an extraordinary claim should be far more definite in showing the court how and why he suffered injury. {Post, p. 321.) 11. SAME. Expenses In obtaining a loan necessitated by wrongful injunction against sale of land are not recoverable. The expenses in obtaining a loan of money, which complainant claimed he had to obtain to pay a judgment, were not a proper element of damages in a suit for a wrongful injunction against the sale of his land. {Post, pp. 321-323.) 12. SAME. Same. Usury paid for loan of money necessitated by injunction is not recoverable as damages. . Usury paid for a loan of money cannot be recovered as damages in an action for a wrongful injunction, wherein a part of the recovery sought was for -xpenses in obtaining such loan rendered necessary by the injunction. {Post, p. 323.) 13. SAME. If no actual damages were suffered from wrongful injunction, only nominal damages and costs are recoverable, but not costs of appeal. Where no actual damages are shown to have been suffered by reason of a wrongful injunction, complainant can recover nothing but nominal damages and costs, but may be taxed with costs of appeal. {Post, p. 323.)
127 Tenn. 324Martin v. State (1912)
INDICTMENTS AND PRESENTMENTS. Indictment must be Indorsed “A true bill," followed by signature of foreman of grand jury, and its return must be shown by minutes; but presentment is authenticated by signatures of ail the grand jurors. While an indictment must he indorsed "‘A true bill,” followed by the signature of the foreman of the grand jury, and the minutes of the court must show the return of the indictment so indorsed, a requirement made to show that the indictment prepared by the attorney-general has been has been before the grand jury, and has been found by them to be “a true bill;” but these requirements are not, by statute, made applicable to a presentment, which is required to be authenticated by the signatures >of all the grand jurors, and hence need' not be evidenced by such indorsement and minute entry. Code cited and construed: Secs. 6949, 7054, 7055 (S.); secs. 5815, 5920, 5921 (M. & V.); secs. 4990, 5093 (T. & S. and 1858). Cases cited and approved: State v. Muzingo, Meigs, 112; Gunkle y. State, 6 Bax., 626; State v. Lewis, 87 Tenn., 122; Bird y. States 103 Tenn., 343.
127 Tenn. 327Byrns v. Gallatin Turnpike Co. (1912)
STATUTES OF LIMITATIONS. Action for dividends declared Is barred in. six years, and is not governed- by the ten year statute of limitation. The action for dividends earned and declared by a corporation is barred by the six year statute of limitation (Shannon’s Code, sec. 4472) and is not governed by the ten year statute of limitation (Shannon’s Code, sec. 4473) in favor of trustees, etc., because a dividend earned by a corporation, when legally declared, becomes the property of the stockholder who has the Immediate right to demand and receive it, and since the obligation of the corporation to pay the same immediately arises by implication of law resting in contract, the technical relation • of trustee and cestui que trust does not exist between the corporation and stockholder. Code cited and construed: Secs. 4472, 4473 (S.); secs. 3472, 3473 (M. & V.); secs. 2775, 2776 (T. & S. and 1858). Case cited and approved: State v. Bank, 95 Tenn., 239.
127 Tenn. 330Davis v. Home Insurance Co. (1912)
t. , INSURANCE. Provision for suspension of policy for nonpay* ment of premiums is valid and enforceable. A provision in an insurance policy that if any installment of premium shall not be paid at maturity, or if any note given for the whole or any part of the premium shall not be paid promptly-when due, the policy shall be suspended and of no effect until such installment or note is paid, is valid and enforceable, and if a loss occurs while the insured is so in default, no recovery can be had for the same. {Post, pp. 332-335.) Cases cited and approved: Dale v. Insurance Co., 95 Tenn., 38; McCullough v. Insurance Co., 118 Tenn., 263. 2. BILLS AND NOTES. Stay of judgment is not a payment. The stay of a judgment on a note does not operate as a payment thereof. (Post, pp. 336, 339.) 3. ATTORNEY AND CLIENT. Attorneys cannot surrender rights of clients without authority. Attorneys have no power to surrender substantial rights of their clients without express authority. (Post, p. 337.) Case cited and approved: Holms v. Johnston, 12 Heist., 158. 4. SAME. Attorneys can receive nothing but money in payment, and cannot accept stay of judgment as payment of insurance premium notes. Where a claim is intrusted to an attorney for collection, he cannot, unless so authorized by his client, accept payment in anything but money, and he has no power to accept the notes of third persons in payment; and therefore an attorney intrusted with the collection of insurance premium notes has no authority to bind the insurance company (his client) by a statement that a. stay of the judgment thereon would be as good as a payment (Post, pp. 336-338.) Cases cited and approved: Kenny v. Hazeltine, 6 Humph., 63; Baldwin v. Merrill, 8 Humph., 139; Pendexter v. Vernon, t Humph., 84; Fitch v. Scott, 3 How. (Miss.), 314. Case cited and distinguished: Insurance Co. v. Fallow, 110 Tenn, 720. S. INSURANCE. Erroneous opinion of attorney, regarded as agent for collection of premium notes, does not estop company to assert suspension of policy for nonpayment of premiums. The erroneous opinion of the attorney of an insurance company, even though he be regarded as the agent of the company for the collection of premium notes, that a stay of the judgment thereon would be as good as the payment thereof, will not es-top the company from asserting a suspension of the policy on account of the nonpayment of premiums; for an estoppel cannot be predicated upon an innocent mistake as to legal rights. {Post, pp. 336, 337, 338.) Cases cited and approved: Vincent v. Hall, 1 Shannon’s Cases, 97; Harlan v. Harlan, 15 Pa, 07; Davis v. Bagley, 40 Ga, 181. Case cited and distinguished: Insurance Co. v. Fallow, 110 Tenn., 720.
127 Tenn. 340Norman v. State (1912)
CRIMINAL LAW. Where, after violation of the age of consent law, the accused and the female in question marry, she is incompetent as a witness during such marriage relation; in what excepted offenses, committed by husband against the wife, she Is a competent witness; effect of statute in civil cases. While the proposition is unquestionably sound that, by way of exception to the general rule of incompetency, the wife is competent to testify against her husband whenever she is the individual, directly injured by a crime committed by her husband, or is otherwise injured by him, and where the facts are peculiarly within her knowledge and impossible or difficult of proof . by any other witness; but the wife cannot be competent as a witness- against the husband upon his trial for an offense consisting of violence to her person or other injury to her, unless the act occurred during the existence of the ■ marriage relation or was brought within it by force exerted by him, beginning before and continuing into and beyond the .beginning of that relation. Therefore, where subsequent to the violation of the age of consent law by having carnal knowledge of a female under the age of twenty-one years, the female in question, without coercion, married the accused, she is not a competent witness against him in his trial for the offense during their marriage relation. The statute (Acts 1879, ch. 200, compiled in Shannon’s Code, secs. 5596 and 5597.), qualifying husband and wife as competent witnesses for and against each other in civil actions, notwithstanding their marriage relation, with the exception of matters occurring between them by virtue of or in consequence of their marriage relation, is in effect a declaration that the general rule of incompetency as established by the common law shall remain and continue to be the rule in criminal cases against the one spouse when the other is offered as a witness. Code cited and construed: Secs. 5596, 5597 (S.); secs. 4563, 4664 (M. & V.). Acts cited and construed: Acts 1879, ch. 2C t. Cases cited and approved: Goodwin v. Nicklin, 6 Heisk., 256: Patton v. Wilson, 2 Lea, 105 (citing and reviewing Brewer v. Ferguson, 11 Humph., 565; Kimbrough v. Mitchell, 1 Head, 450;. State v. McAuley, 4 Heisk., 424; and Goodwin v. Nicklin, 6 Heisk., 256); Owen v. State, 89 Tenn., 698; State v. Bean, 104 Mo. App., 255; State v. Woodrow (W. Va.), 2 L. R. A. (N. S.), 863; People v. Curíale, 137 Cal., 534; State v. McKay, 122 Iowa, 658; State v. Frey, 76 Minn., 527; People v. Schoonmaker, 177 Mich., 191; State v. Evans, 138 Mo., 116; Moore v. State (Tex. Cr. App.), 67 L. R. A., 499, and notes.
127 Tenn. 357Smithson v. State (1912)
1. CRIMINAL LAW. Advance opinion of trial judge against reading of opinion of supreme court on former trial, with reservation of judgment until offer to read same, is not available as error where no offer to read same was thereafter made. Where upon the State’s motion, made in advance of the introduction of any evidence, and seeking the court’s advance ruling against the defendant’s proposed reading of the supreme 'court’s reported opinion on a former trial of the case, to the jury in the argument of the pending case and trial, the trial judge stated! that such reading -would be improper, since that opinion commented on the facts, but stated that he would rule on the question if and when the defendant’s counsel offered to read the Opinion, there was no available error in such stated opinion, where no offer or effort to read the opinion was thereafter made. (.Post, pp. 359, 360.) Case cited and approved: Smithson v. State, 124 Tenn., 218. 2. SAME. Same. Trial judge’s discretion to deny the reading of the supreme court’s opinion on the former’trial, treating of motives and facts, and such denial is not erroneous. It is within the sound discretion of the trial judge to refuse to permit the reading of the supreme court’s reported opinion on a former trial, where such opinion commented upon the facts relating to the motives of the deceased and the accused; and there would he no error in refusing to permit such reading. (Post, p. 360.) Cases cited and approved: State v. Wait, 44 Kan., 310; Brown v. State, 46 Ala., 176; Williams v. State, 83 Ala., 68; State v. Whit, 50 N. C., 224; State v. Rideau, 118 La* 385^, Cannon V, State, 41 Tex., 488, 3. SAME. Improper argument of State’s counsel as to defendant’s failure to testify in former trials. Where one of the State’s counsel stated in his argument before the jury that the proof showed that the accused was afraid to testify in the former trials, that his counsel had no faith in his defense, and were ashamed to put him on the stand, sudb argument is reversible error where objection was made to the same, and a motion was made to exclude it from consideration by the jury, and the exclusion was made in an improper manner. {Post, pp. SCO, 361.) 4. SAME. Same. It is improper for State’s counsel to comment on defendant's failure to testify in former trial. The statutory provision (Shannon’s Code, sec. 5601), that the failure of the accused to testify in his own behalf shall not create any presumption against him, applies to his former trial, as well as to his pending trial, so as to make it improper for the State’s counsel to comment on the failure of the accused to testify in- his former trial or trials. {Post, pp. 361, 362.) Code cited and construed: Sec. 5601 (S.). Ca: as cited and approved: Staples v. State, 89 Tenn., 231; Bunck-ley v. State, 77 Miss., 540; Brown v. State, 57 Tex. Cr. R., 269; Taylor v. Commonwealth, 117 Ky., 214. 5. SAME. Same. Same. Error of Improper argument Is not cured by trial judge’s exclusion, with expression of opinion that It was legitimate. The error and harmful effect of improper argument is not cured by the trial judge’s exclusion of the same from the consideration of the jury, where his ruling was accompanied with the expression of his opinion that such argument was legitimate. {Post, p. 362.) r
127 Tenn. 363Citizens' National Life Insurance v. Witherspoon (1912)
1. CIRCUIT COURT PRACTICE. Finding of facts signed by trial judge may itself show seasonable request therefor, without bill of exceptions or mlnute entry. The trial judge’s written finding of facts, when authenticated and identified by his signature, appearing in the transcript duly certified by the clerk of the trial court, may, by its own recitals, sufficiently testify to the fact that it was seasonably requested; that is to say, at or upon the trial of the cause, and before the decision thereof and judgment thereon; for such written finding of facts, when so authenticated and upon being filed in the cause, becomes a part of the record by operation of th« statute (Shannon’s Code, sec. 4684) authorizing the same. (Post, pp. 366, 367, 369, 370.) Code cited and construed: Sec. 4684 (S.); sec. 3673 (M. & V.); sec. 2959 (T. & S. and 1858). Cases cited and approved: Hinton v. Insurance Co., 110 Tenn., 130, 131; Railroad v. Foster, 112 Tenn.,' 346. 2. SAME. Same. Written finding of facts sufficiently showing a request therefor during the trial. Under the statute (Shannon’s Code, sec. 4684) providing that, “Upon the trial of a question of fact by the court, the decision if requested by either party, shall be given in writing, stating the facts found and the conclusions thereon, which shall constitute a part of the record,” such decision, signed by the trial judge, which, after showing the correct style of the cause, and the court in which it was pending, recites that, “At the trial of this cause the defendant requested a written finding of facts by the court, and the same is herewith- made,” followed bv the finding of facts and the conclusions and decision thereon, sufficiently shows that the request for the written finding of facts was made during the trial, so as to he a part of the record, though the date of filing is the same as that of a minute entry showing the motion for a new trial four days after the trial and judgment; for the word “at,” so used hy the trial judge, has the same meaning as the word “upon” in said statute. (Post, pp. 366-369.) ; Code cited and construed; Sec. 4684 (S.); sec. 3673 (M. & V.); sec. 2951 (T. &:S. and 1858). Cases cited and approved: Parham v. Gibbs, 16 Lea, 296; Stanley v. Donoho, 16 Lea, 495; Stephens v. Mason, 99 Tenn., 513; McHale v. Wellman, 101 Tenn., 152; Hinton v. Insurance Co., lib Tenn., 130, -131; Railroad v. Poster, 112 Tenn., 346. 3. WORDS AND PHRASES. Words “at the trial” haye samé mean- • ing as words “upon the trial.” The words “at the trial,” used in a written finding of facts, have the same meaning as the words “upon the trial” used in the 1 statute (Shannon’s Code, sec. 4684) providing for written finding of facts. (Post, p. 368.) Code cited and construed: Sec. 4684 (S.); sec. 3673 (M. & V.); ■sec. 2959 (T. & S. and 1858). . . ' 4. CIRCUIT COURT PRACTICE. Written finding of facts filed during term is a part of the record, though not filed until after motion for a new trial was overruled. Under the-statute (Shannon’s Code, sec. 4684), providing for written finding of facts by trial judge, and declaring the same to be a part of the record, such finding is a part of the record, if filed during1 the trial term, though after the judgment was rendered and the motion for a new trial was considered and overruled; for said statute does not prescribe the time of filing of the ■written finding of facts, and the court would nullify the statute by holding that the finding in such case is not a part of the record. (Post, p. 370.) Code cited and construed: Sec. 4684 (S.); sec. 3673 (M. & V.); sec. 2959 (T. & S. and 1858). É. SAME. Either party fnay request additional written findings, and if refused; may file bill of exceptions. If either party to a suit is dissatisfied with the written finding of facts, made by the trial judge, under request therefor,' as required by statute (Shannon’s Code, sec. 4684), such party may protect his rights, by request for additional findings; and, if these be not made, by bill of exceptions. (Post, p. 370.) Code cited and construed: Sec. 4684 (S.); sec. 3673 (M. & V.); sec. 2959 (T. & S. and 1858). Case cited and approved: Hinton v. Insurance Co., 110 Tenn., 130, . 131. ..... 6. SAME. Extension of time for preparing and'filing written finding of facts. Where the written finding of facts is filed at or near the end of the trial term, or is then requested, when there is not sufficient time for the tidal judge to prepare and file it before the end of the term, the trial judge may save the rights of the parties by proper order made in the cause, or by leaving open the minutes of the term at which it was requested. (Post, p. 37Í.)' Case cited and approved': Dunn v. State, 127 Tenn., 267. . 7. APPEALS. Conclusions of law upon facts found in written finding is not conclusive on appellate courts. The trial judge’s conclusions of law upon the facts as found in his written findings in pursuance of request under the statute is not conclusive upon the appellate courts. (Post, p. 371.) 8. LIFE INSURANCE. Compensation of agent by a percentage on. premiums is measured by premiums actually received, and not. wby what might have been received on a substituted policy.-if it. had been issued at first. Where the State agent of a life insurance company, while under1 : a contract fixing his' compensation at certain percentages on the' ■ first year’s premiums, varying according to. the form of tho: ■ policy, and a renewal commission of ten per cent, on all subsequent cash premiums, wrote a convertible term annuai'dividlsncl '^policy for 55000, and received his commissions on the premiums until its termination, at which time the insured converted it into another form of insurance and received a new policy, dated as of the date of the first policy; and the total of premiums paid during the term of the first policy was the sum of $372.75, and the total of premiums which the insured would have paid during that time, had he originally taken out the second policy, was the sum of $1,334.50, and the action was brought for a commission- of ten per cent, on the difference, namely, on the sum of $961.75; it was held that the plaintiff’s commissions were measured by what the company actually received as premiums, and not by what it might have received, if the parties in the first instance had executed the second policy, so that he could not recover. (Post, pp. 371-375.)
127 Tenn. 376Freddo v. State (1912)
l. HOMICIDE. Evidence held sufficient to show killing under sudden heat of passion. The evidence in a prosecution for homicide is stated, reviewed, and held, to he sufficient to show that the accused killed the decedent under the impulse of a sudden heat of passion. (Post, pp. 378-382.) '2. SAME. Provocative cause considered on basis of ordinary average mind, and not an abnormal or. peculiarly sensitive mind. The adequacy of the provocation of a homicide must he tested by considering a mind ordinarily constituted, the fair average mind and disposition, and not an abnormal or peculiarly sensitive mind. (Post, pp. 382, 383.) Cases cited and approved: Seals v. State, 3 Bax., 459, 462; Johnson v. State, 11 Lea, 47; Regina v. Welsh, 11 Cox. C. C., 336; State v. Ferguson, 2 Hill (S. C.), 619 Ryan v. State, 115 Wis., 488. 8. SAME. Epithets are not sufficient provocation for taking life, nor to reduce homicide to manslaughter; epithet “son of a bitch” not adequate provocation. Mere language or epithets, however violent or offensive, do not constitute sufficient provocation for taking life, nor to reduce homicide to manslaughter; so that the use of the epithet “son of a bitch” would not be adequate cause of provocation. (Post, pp. 383, 384.) Cases cited and app ved: Williams v. State, 3 Heisk., 376, 392; Levy v. State, 28 Tex. App., 203. 4. SAME. Same. Slight assault accompanied with offensive, language may reduce killing to manslaughter, when. An assault, too slight of itself to be sufficient provocation to reduce a killing to manslaughter, may become sufficient when accompanied by offensive language; but to do so, the accompanying assault must be imminent or actual. (Post, pp. 384, 385.) ' Cases cited and approved: Grainger v. State, 5 Yerg., 460; Seals v. State, 3 Bax., 459; Regina v. Sherwood, 1 Car. & Kir., 554; Regina v. Smith, 4 Fos. & F., 1066; State v. Buffington, 71 Kan.,, 804; Wadlington v. State, 19 Tex. App., 266; Gray v. State, 47 Tex. Cr. R., 375; Golden v. State, 25 Ga., 527; Edwards v. State.' 53 Ga., 428; Ex parte Warrick, 73 Ala., 57; Phelps v. State, 75 Ga., 571. 6. SAME. Same. Same. Whether the assault accompanied by abusive epithet was adequate cause of provocation is for the jury, under a proper charge. Where the fatal stroke may have been found by the jury to have been delivered by the accused at a time when the decedent was not in a position to assault him, though the decedent used a highly abusive epithet toward the accused at the time, the determination of the question whether the provocative epithet was accompanied by a sufficient assault to constitute adequate or reasonable cause for arousing the passion of the accused was for the jury, under a proper charge. (Post,’ pp. 385, 386.) Cases cited and approved: Seals v. State, 3 Bax., 459; Taylor v. State, 6 Lea, 234; Maher v. People, 10 Mich., 212.
127 Tenn. 387Meredith v. Dibrell (1912)
PROM WHLTE. Appeal from the Chancery Court of White.County.— A. H. Robebts, Chancellor. ,
127 Tenn. 393McKennon v. McFall (1912)
1. TAXATION. Situs of intangible personalty is not always taxable where decedent resided at his death. The maxim that the situs of movables follows the person of the owner, for the purpose of taxation, may not embrace, in every aspect, the intangible property of a decedent, regardless of its actual or fixable situs, within the general assessment law (Acts 1907, ch. 602, sec. 5, subsec. 2, and sec. 8, subsec. 10), providing for the assessment of personalty. (Post, pp. 400-403.) Acts cited and construed: Acts 1907, ch. 602, sec. 5, subsec. 2. and sec. 8, subsec. 10. Cases cited and approved: Mayor v. Alexander, 10 Lea, 477; Cannon v. Apperson, 14 Lea, 588; Street Railway v. Morrow, 87 Tenn., 428; Grundy Co. v. Coal Co., 94 Tenn., 295. 2. SAME. Situs of decedent’s intangible personalty may be fixed for taxation here, though physically outside the State. It is within the power of the legislature to apply, in its full force, the fiction of the maxim that the situs of personalty follows the person of the owner, so as to fix within the State, for taxation purposes, the situs of all the intangible personalty of a resident decedent, though located physically outside the State. (Post, pp. 404.) Case cited and approved: Express Co. v. Patterson, 122 Tenn., 291. 3. SAME. Intangible personalty of a resident decedent, physically located and taxable in another State, is not taxable here; word “held” does not mean “owned,” but “controlled for taxation purposes.” Under the assessment law (Acts 1907, ch. 602, sec. 5, subsec. 2), providing for the assessment of property held by executors and administrators in the county where the decedent resided when he died;, but if he lived in another State, then where the personal representative resides; and under section 8, subsection 10, of said act classifying personalty for taxation, the power to tax in this State is withheld as to such intangible personalty of a decedent as is held outside the State’s territory, and subject to taxation in the other State where located; for the word “held” in the said first statutory provision does not mean “owned,” but means “held or controlled for taxation purposes.” (Post, pp. 403, 404.) Acts cited and construed: Acts 1907, ch. 602, sec. 5, subsec. 2, and sec. 8, subsec. 10. 4. SAME. Resident decedent's stock in a bank in another State, and taxable there, is not taxable here, Under the statutory provisions stated in the preceding headnote, . shares .of stock in a Mississippi banking corporation, held by the decedent who resided in Tennessee at the time of his death, are not taxable here against his estate, because they are sub- • ■ ject to taxation in Mississippi. Our own statute (section 24 of said assessment law) provides for the assessment of shares of a nonresident stockholder in banks incorporated and doing busi- ■ ness, in this State. (Post, PP- 404, 405.) Acts cited and construed: Acts 1907, ch. 602, sec. 5, subsec. 2; sec. 8,, subsec. 10; and sec. 24. ”i>. SAME, in injunction suit by executors to enjoin collection of tax judgment, burden rests on them to show invalidity of tax. Where executors file a bill to enjoin the collection of a judgment tor uxus, rendered by the county trustee, toe burden of proof rests upon them to show some fact upon which the tax assessment is claimed to be invalid. (Post, pp. 397, 405.) 6. SAME. Taxable situs of notes is that of the creditor, or his agent holding them for investment, etc. The taxable situs of notes is at the domicile of the creditor, and not at that of the debtor, where they reside in different States, or at the residence of an agent of the creditor, when in his hands for investment and reinvestment, or other localized business purposes. ( (Post, pp. 405, 406.) Cases cited and approved: Detroit v. Lewis, 109 Mich., 155; Herron v. Keeran, 59 Ind., 472; Buck v. Miller, 147 Ind., 586; Walker v. Jack, 88 Fed., 576, 31 C. C. A.., 462; Monongahela, etc., Co. v. Board, 115 La., 564; Commonwealth v. Dun, 126 Ky., 108;, New Orleans v. Stempel, 175 U. S., 309. 7. SAME. Taxable situs of bank deposits is that of the depositor, and not that of the bank. A deposit in a bank in another State is a mere debt due from the bank to the depositor, and, after his death, is taxable here, and not in such other State. (Post, pp. 397, 406.) Cases cited and approved: Grissom v. Bank, 87 Tenn., 350; Akin v. Jones, 93 Tenn., 353; Grundy Co. v. Coal Co., 94 Tenn., 295; Buck v. Miller, 147 Ind., 472. 8. SAME. Taxable situs of intangible personalty is not affected by laws of other States. The power of this State to tax intangible personalty belonging to the estate of a resident decedent is not affected by the tax laws of another State where the subject of taxation may be physically located. (Post, pp. 406-410.) Acts cited and construed: Acts 1907, ch. 602. Cases cited and approved: Gallatin v. Alexander, 10 Lea, 473;, Bonaparte v. Tax Court, 104 U. S., 592; Coe v. Errol, 116 U. S., 517; Judy v. Beckwiih, 137 Iowa, 24; Kelljr v. Rhoads, 7 Wyo., 237: mp’-tpo v. Jackson, 78 Miss., KS7- rvimmonwealth v. Wil-. líalas 1U4 778t citing and rev¿£».n^, -mc* 9. SAMtL Taxable situs of bank deposit cannot, be so diverted by executors as to avoid taxation. Tennessee executors cannot divert the taxable situs of a bank deposit of the testator from the domiciliary administration into another jurisdiction by transferring it from a bank in one State or country to a bank in another, so as to avoid taxation in this State. (Post, pp. 397, 410, 411.) Cases cited and approved: Railroad v. Herb, 125 Tenn., 408; Mc-Cabe v. Lewis, 78 Mo., 296; Embry v. Miller, 1 A. K. Marsh (Ky.), 302; Sedgwick v. Ashburner, 1 Bradf. Sur. (N. Y.), 105; Schley’s Estate, 11 Phila. (Pa.), 129, Id., 2 Wkly. Notes Cas. (Pa.), 684'; Probate Court v. Matthews, 6 Vt., 269; Peck v. Mead, 2 Wend. (N. Y.), 470; Hoes v. Railroad, 173 N. Y., 435. ¡10. SAMEl Chancery court’s disallowance of tax penalties allowed by county trustee In back assessment proceedings is erroneous. In taxpayer’s injunction suit to enjoin the collection of the county trustee’s judgment in a back assessment proceeding assessing, for taxation, intangible personalty physically located in another State, but belonging to a deceased resident of this State, the chancery court’s disallowance of the statutory tax penalties allowed by the county trustee in the back assessment proceedings, is erroneous, and will be corrected by the supreme court. (Post, p. 41Í.) Acts cited and construed: Acts 1907, ch. 602, sec. 30,
127 Tenn. 412Daly v. Sumpter Drug Co. (1912)
1. FRAUDULENT CONVEYANCES. Merchant's sale of a half interest in a stock of goods is within the bulk sales law declaring such sales, without notice, to be fraudulent. The sale of a half interest in a stock of goods by a merchant for the purpose of taking the purchaser into partnership with himself is within the purpose and reason of the statute (Acts 1901, ch. 133) declaring that “a sale of any portion of a stock of merchandise otherwise than in the ordinary course of trade in the regular and usual prosecution of the seller’s business, or a sale of an entire stock of merchandise in bulk, shall be presumed to be fraudulent and void as against the creditors of the seller,”, unless the prescribed inventory is made and the prescribed notice is given. (Post, pp. 415,- 416, 420-422, but especially 421, 422.) Acts cited and construed: Acts 1901, ch. 133. 2. SAME. Same. Merchant’s creditors can sue purchaser of his stock of goods for their'value, if required notice was not given. Where the purchaser of a stock of goods from a merchant, or of a half interest therein, failed to give the creditors of the merchant the required notice, and the stock in question had practically, all been sold, or had been so intermingled with other property of the same kind as to be indistinguishable at the time of the filing of the bill, the seller’s creditors may sue the purchaser for the value of the goods, without pursuing the property by attachment. (Post, pp. 419, 420, 422, 423. 424, 425.) Acts cited and construed: Acts 1901, ch. 133. Cases cited and approved: Lazell v. Powell, 1 Shannon’s Cases, 132; Williamson v. Williams, 11 Lea, S55, 370; Solinsky v. Bank, 85 Tenn., 368, 372; Bank v. Haller, 101 Tenn., 83; Dillard v. Smith, 105 Tenn., 372. Cases cited and OYerruled: Simpson v. Simpson, 7 Humph., 275; Tubb v. Williams, 7 Humph., 367. 3. SAME. Sale and purchase of merchant’s stock of goods, without giving the required notice, is fraudulent, regardless of knowledge or intent. The sale and purchase of a merchant’s stock of goods, or a half interest therein, without giving to his creditors the notice required by the statute (Acts 1901, ch. 133), is in violation of said statute, and is fraudulent and void as against the creditors of the seller, whether the purchaser knew there were any such creditors or not, and regardless of good faith. (Post, pp. 423, 424, 425.) Acts cited and construed: Acts 1901, ch. 133. Cases cited and approved: Bank v. Haller, 101 Tenn., 83; Dillard v. Smith, 105 Tenn., 372: • Case cited and distinguished: Lazell v. Powell, 1 Shannon’s Cases, 132. 4. SAME. Statute declaring sales of merchandise In bulk, without inventory and notice, to be fraudulent, is a remedial one; no distinction between fraud in fact and fraud in law. The statute (Acts 1901, ch. 133), declaring the sales of merchandise in bulk, without making the prescribed inventory and giving the required notice, to be frauduent and void as against-.the seller’s creditors, is a remedial statute, and must be applied with a view to cure the evil at which it was leveled; and a distinction between fraud in fact and fraud in law will not be in-grafted on the statute, because such construction might greatly impair its efficacy. (Post, pp. 423, 424.) Acts cited and construed: Acts 1901, ch. 133. t, SAME. Purchaser of stock of goods from merchant, without notice to his creditors, cannot defend en the qround.ef acquies»-•cén'ce,'estoppel, abandonment, or laches, for their failure to due for'fourteen mo'nths. 1 ! •' Where the sale and purchase of a merchant’s stock of goods in bulk, or a half interest therein, was fraudulent and void as against his creditors, upon the ground that the required notice was not given to them, the purchaser cannot defend agáinsf the s.uit of such creditors upon the ground of acquiescence, es-toppel, abandonment, or laches, where the creditors simply refrained from suing for fourteen months, and allowed the purchaser to sell such goods, where he was not misled or prejudiced thereby. (Post, p. 425.) 6. SAME. Surety, whether released or not, paying note, and taking assignment thereof, is a “creditor” entitled to protection against sale of merchandise in bulk, without notice, where his assignor was.a creditor entitled to such protection. Whether a surety was released or no't by the extension of the timo of payment of the note, made several -times, without his consent, in consideration of the payment of interest in advance, is immaterial, where he pays the note and. takes an assignment thereof from the holder; and in such case he has all the rights of the ' assignor, whether the assignor knew of his rights or not. .Such assignee is not a mere volunteer, but is a “creditor” entitled to protection under the statute (Acts 1901, ch. 133) regulating the sale of the stocks of goods of merchants, and declaring bulk sales, without the required notice, to be fraudulent and void as to the creditors of the selling ■ merchant, where such assignor was a creditor entitled to protection under said statute. (Post, pp. 418, 419, 425.) Acts cited and construed: p Acts 1901, ch. 133. 7. SAME. Provision for attorney’s fee In merchant’s note will be enforced in favor of assignee and against purchaser of merchant’s stock of goods, without notice. A provision in a notq for an attorney’s fee of five per cent, is a part of the contract evidenced by the note, and will be enforced in '" 'favor of'tie surety thereon paying the samé arid'taking an as-»íghmé&tNfcéré©f;ftdiri t&e'holder, ais 'against the ‘purchased- of a stock of merchandise from the maker (a merchant), without, giving the required notice to the creditors of sucu merchant. (Post, p. 425.) Acts cited and construed: Acts 1901, ch. 133.
127 Tenn. 426Eakin v. Riddle (1912)
CHANCERY PLEADING AND PRACTICE, “wo partners filing * bill for relief against a third person as principal defendant and against the remaining two copartners, for conformity, entitles the latter to relief against principal defendant, upon answer, without cross bill. "Where two partners file a bill in chancery for a settlement of the partnership business, making their other two copartners defendants, for conformity, and making a third person, who had contracted with all the partners, a party defendant, and seeking active relief against him, and one of the copartners filed an answer, admitting the allegations of the bill and praying tor a decree in his favor against such third person as the principal defendant, such answering defendant being entitled to the same relief against such principal defendant as the complainants, is entitled to a recovery against such principal defendant, without the necessity of filing a cross bill. Cases cited and approved: Ingram v. Smith, 1 Head, 411, 42S; Davis v. Reaves, 7 Lea, 585; McKee v. Dail, 1 Tenn. Chy. App., 696.
127 Tenn. 429Temple v. State (1912)
1. CRIMINAL LAW. No new trial, arrest of judgment, or reversal in the supreme court for causes declared by statute not to be grounds therefor. Under the statute (Shannon’s Code, sec. 7217), enumerating causes which shall not he sufficient to authorize a new trial, arrest of judgment, or reversal of the judgment, the accused is not entitled to a new trial or reversal of the conviction after a trial ofi the merits, on a plea of not guity, because the certified copy of the record does not show the caption of the court, and because the record does not show the name of the trial judge, and because the record does not contain the venire facias, and because the indictment was signed by one as pro tern,, attorney-general, and the record did not show any order appointing him attorney-general pro tern. (Post, pp. 432, 433.) Code cited and construed: Sec. 7217 (S.); sec. 6083 (M. & V.); sec. 5242 (T. & S. and 1858). Chse cited and approved: King v. State, 15 Lea, 51. Cases cited and overruled: State v. Davidson, 2 Cold., 196; Thur-ston v. State, 3 Cold., 117. 2. SAME. Indictment signed by attorney-general pro tern., and prosecution of case by attorney-general before trial jury is no. ground of complaint by accused!. : ; The attorney-general need not appear in a criminal prosecution,'’ but outside counsel may appear, and prosecute upon the procurement of the prosecutor or the public; and the accused cannot complain upon the ground that the indictment was signed by an attorney-general pro tem., where it otherwise appears that' the attorney-general prosecuted the case on the-trial before the jury. (Post, pp. 433, 434.) Case cited and approved: Isham v. Stats. 1 Sttged, 111, 3. SAME. Verdict of “guilty at charged in the indictment” for rape is sufficient to warrant judgment imposing the death penalty. Under the statute (Shannon’s Code, sec. 6452), Imposing the death penalty for rape, but providing that the jury may commute the punishment to imprisonment for life or for a term not less than ten years, and under another statute (Shannon’s Code, sec. 6458), declaring-that the punishment for assault on a female under the age of ten years, with intent to carnally know her ■ shall be the same as in case of rape; a verdict on a trial under an indictment for assault on a female under the age of ten years, with intent to carnally know her, returned In these words: "We, the jury, find the defendant guilty as charged in the indictment,” is sufficient and carries with it the death penalty, since the jury did not commute the punishment to imprisonment. {Post, pp. 434, 435, 436.) Code cited and construed: Secs. 6452, 6458 (S.); secs. 6362, 5366 (M. & V.); sec. 4611 (T. & S. and 1858). Case cited and approved: Fuerst v. State, 115 Tenn., 367. Case cited and distinguished: Waddle v. State, 112 Tenn., 556. 4. SAME. Presumption of correction of trial court’s charge, if no bill of exceptions. Where there is no bill of exceptions, so that the charge of the court is not in the record, the supreme court will presume that the trial judge correctly charged the law in the case. {Post, pp. 434, 435.) 5. SAME, Presumption that evidence was heard, and was sufficient to sustain the verdict. In the absence of a bill of exceptions, the supreme court will conclusively presume that the jury heard the evidence, and that the evidence was sufficient to sustain the verdict beyond a reasonable doubt. {Post, p. 436.)
127 Tenn. 437Norris v. State (1912)
1. CRIMINAL LAW. Without request, trial judge is required to. charge that venue must be proved. The trial judge is required to instruct the jury that the venu6 must be proved, and his failure to give such instruction is reversible error, although the defendant does not request it. (Post, j>. 438.) ' Case cited and approved: Frazier v. State, 117 Tenn., 455. 2. SAME. Venue may be proved by a preponderance of the evidence. The venue in a criminal case is a jurisdictional subject-matter, and it may be proved by a preponderance of the evidence, and need not be established beyond a reasonable doubt. (Post, pp. 438-440. Cases cited and approved: State v. Quartemus, 3 Heist., 55; Maples v. State, 3 Heist., 408; Pike v. State, 8 Lea, 579; Wilson v. State, 62 Ark., 497. Case cited and distinguished: Frazier v. State, 117 Tenn., 4G2,
127 Tenn. 441Keith v. Funding Board (1912)
TAXATION. State bonds cannot be constitutionally exempted from taxation in the statute authorizing their issuance and sale. The provision that “neither the principal nor the interest of said bonds shall be taxed- by this State or any county or municipal corporation thereof, and it shall be so stated in the face .of said bonds,” contained in the funding -act of 1913 (Acts 1913, ch. 12), authorizing the issue and sale of State bonds in amount sufficient to pay off the outstanding bonded indebtedness, of the State, is unconstitutional and void, because in violation of the constitutional provision (art. 2, sec. 28) that “all property, real, personal, or mixed, shall be taxed, but the legislature may except such as may be held by the State . . . and used exclusively for public . . . purposes,” etc., because State bonds are not mentioned in the exception, and are not within the purview of the permissible exemptions, as- they are not held by the State, and used exclusively, for public purposes; and because this constitutional provision is a direct limitation laid upon the power of the legislature beyond which that body may not pass, and the exception or exemption clause specifically limits the power of granting exemptions from taxation, and means that all property shall be taxedi by the legislature, except the particular items specifically mentioned in -the said exception or exemption clause. Acts cited and' construed: Acts 1913, ch. 12. Constitution cited and construed: Art 2, sec. 28. Cases cited and approved: Bank v. Cooper, 2 Yerg., 599, 602; Andrews v. State, 3 Heisk., 165, 195; Pope v. Phifer, 3 Heisk., 687; Railroad v. State, 8 Heisk., 663, 789, 796, 805; Ellis v. Railroad, 8 Bax., 530, and Commercial Legal Reporter (1877); Railroad v. Gaines, 3 Tenn. Chy., 606-611; Chattanooga v. Railroad, 7 Lea, 576, 577; Lynn v. Polk, 8 Lea, 121, 138; Railroad y. Wilson Co., 89 Tenn., 597, 607; Memphis v. Bank, 91 Tenn., 574, 586, 587; Redistricting Cases, 111 Tenn., 234, 291; State Chancellor v. Elizabeth, 65 N. J. Law, 479; Norfolk v. Perry Co., 108 Va., 28; Thomas v. Taylor, 42 Miss., 651; Trask v. Maguire, IS Wall., 392, 407; Keith v. Clark, 97 U. S. 454. Case cited, distinguished, and approved: Bank v. Memphis, 116 Tenn., 641. Cases cited, distinguished, and reviewed: Lynn v. Polk, 8 Lea, 121, 240; Bank v. Knoop, 16 How., 369; Jessup v. United States, 106 U. S., 151; Bank v. New York, 121 U. S., 138, 162; Pollock •v. Loan & Trust Co., 157 U. S., 429, and 158 U. S., 630; McCrary v. United States, 195 U. S., 27; Danolds v. State, 89 N. Y.f 36; State v. Bank, 2 Hous. (Del.), 99.
127 Tenn. 501Goodman v. Goodman (1912)
1. DIVORCE. Presumption that chancellor’s despee for dlvorcs was based on sufficient evidence, if no bill of exceptions. The appellate' court •will presume, on appeal In a divorce suit, as In other actions, that the chancellor’s decree was based on proper and sufficient evidence, in the absence of a bill of exceptions. (Post, pp. 502, 503.) 2. SAME. Parol testimony In divorce suits must be preserved by bill of exceptions. Parol testimony in a divorce suit, though in chancery, must be preserved by the appellant by a bill of exceptions. (Post, pp. 502, 503.) Case cited and approved: Phillips v. Phillips, 5 Lea, 45L
127 Tenn. 504Landis v. White Bros. (1912)
1. BILLS AND NOTES. Transfer without indorsement passe) the title subject to defenses against transferrer. Where the holder of an instrument transfers it for value, with out indorsing it, the transfer vests in the transferee such titii as the transferrer had therein, but subject to defenses goco arainst the transferrer; and a failure of consideration is a good defense. (Post', p. 506.) Acts cited and construed; Acts 1899, ch. 94, sec. 49. Cases cited and approved: Marling v. Fitzgerald, 138 Wis., 93; Manufacturers’ Commercial Co. v. Blitz, 131 App. Div., 17. 2. DIMINUTION OF RECORD. Petition to rehear upon suggestion of, may be rejected by court of civil appeals, and its such discretionary action will not be reviewed by supreme court, when. Where the court of civil appeals declines to grant a petition for o rehearing, based upon the ground of a suggested diminution of the record, the supreme court will not review such action of that court, nor interfere with its determination, where the ends of justice have been attained; for that court exercises its discretion (under rule 26 of both courts) as to whether a suggestion of diminution shall he allowed after its final decree. (Post, pp. 507, 508.) Case cited and approved: Gass v. Waterhouse, 61 S. W, 450.
127 Tenn. 509Farmer v. Mayor of Nashville (1912)
1. WATER. Duty of water company to supply watsr to all applicants tendering' usual rates. A water company possessing the power of eminent domain, and being a quasi public corporation, must, as an implied condition of its franchise, supply water to all applicants' who tender the usual rates. (Post, p. 514.) Case cited and approved: Crumley v. Water Co., 99 Tenn., 420. 2. SAME. Same. Water company must supply water, without discrimination; but may adopt and enforce reasonable rules. While such a water company must supply water to all of the inhabitants of the city of its location alike, without discrimination, and without denial, except for good and sufficient cause, but it may adopt reasonable rules for the conduct of its business, which are binding on its patrons, and may be enforced, even to the extent of denying water to those refusing to comply with them. (Post, pp. 514. 515.) Case cited and approved: Water Co. v. Wolfe, 99 Tenn., 429. 3. MUNICIPAL CORPORATIONS. Ordinances must not conflict with general laws of the State, and must be reasonable. A municipal corporation may enact only such ordinances as do not conflict with the general laws of the State, and are reasonable and adapted to the corporate purposes. (Post, pp. 515, 516.) Cases cited and approved: Long v. Taxing District, 7 Lea, 137 (citing cases); Jones v. Nashville, 109 Tenn., 558. 4. SAME. Same. Ordinance requiring assessments for un-metered water consumers to be made against owners of property is void, when. Where a municipal corporation, authorized and obligated to furnish water to all of its inhabitants, enacted an ordinance requiring all assessments for unmetered water consumers to be assessed against the owners of the property, in'stead of the consumers, such ordinance is unnecessary, unjust, unreasonable, and an arbitrary discrimination between the inhabitants owning the property occupied by them and those not owning the property occupied by them, so as to be void, especially where there is another by-law requiring all unmetered assessments to be paid in advance, and thus furnishing all necessary protection to the city against delinquencies. (Post, pp. 516-520.) Cases cited and approved: Crumley v. Water Co., 99 Tenn., 420: Water Co. v. Wolfe, 99 Tenn., 429; Jones v. Nashville, 109 Tenn., 558; State v. Water Co., 18 Mont., 199; Turner v. Water Co., 171 Mass., 329; Bank v. Lowéll, 152 Mass., 556; Covington v. Ratterman, 128 Ky., 336; Line v. Bredes, 43 Wash., 540; Chicago v. Insurance Co., 218 Ill., 40; Burke v. Water Valley Co., 87 Miss., 732. 5. LANDLORD AND TENANT. Landlord is not bound to furnish water, nor is tenant bound to pay water rent debt of landlord. At common law, a landlord is under no obligation to furnish water to his tenant, nor is a tenant bound to pay the water rent debt of the landlord, in the absence of an agreement to do so. (Post, p. 518.)
127 Tenn. 521Independent Order of Foresters v. Cunningham (1912)
1. LIFE INSURANCE. .Forfeitures are not favored, and will not he enforced against equity and good conscience. ..... It is a firmly imbedded doctrine in our jurisprudence that.,, forfeitures of life insurance policies are not favored, and will not be enforced against equity and good conscience. (.Post, . p. 529.) Case cited and approved: Insurance Co. v. Fallow, 110 Term., 720 (and the cases cited there). 2. SAME. Agent acting within the general scope of his apparent authority, though exceeding his authority, binds h's .principal- An agent of an insurance company, having ostensible general authority to solicit applications, make contracts for insurance, and receive first premiums, binds his principal by any acts or contracts within the general scope of his apparent authority, notwithstanding the actual excess of authority. (Post, p.s529.) Case cited and approved: Murphy v. insurance Co„.3 Bax., ,440; Insurance Co. v. Fallow, 110 Tenn., 720. 3. SAME. Provision for forfeiture of policy for nonpayment of premiums will be enforced unless waived. It is well settled in this State that a provision in a policy of insurance for a forfeiture of the contract for nonpayment of premiums is a material element of the contract, the violation oi which will forfeit the contract, unless the forfeiture has been waived. (Post, p. 529.) Cases cited and approved: Dale v. Insurance Co., 95 Tenn., 38; Insurance Co. v. Fallow, 110 Tenn., 720; Insurance Co. v. Statham, 93 U. S., 24. 4. SAME. Waiver of forfeiture grows out of new contract arising from conduct; and forfeiture will not be allowed as against good faith and conscience. The doctrine of waiver and estoppel, as applied to the forfeiture of insurance contracts, does not grow out of the original agreement of the parties, hut out of a new contract, arising from the conduct of the parties, not to insist upon the forfeiture; and although there is no formal waiver, the courts will not allow a party to claim a forfeiture in violation of good faith.and good conscience. (Post, pp: 529-531.) f>. SAME. Forfeiture may be waived by officers or agents of mutual benefit insurance associations as well as by those of regular insurance companies. A forfeiture clause in a benefit insurance certificate, as well as that in a policy of a regular stock insurance company, may be waived by its officers or agents, within the real or apparent scope of their authoirty, although the quality of mutuality of the-members is thereby impaired. (Post, pp. .531, 532.) Cases cited and approved: McCarthy v. Catholic Knights, 102 Tenn., 345; Modern Woodmen v. Breckenridge, 75 Kan., 373; Whigham v. Independent Foresters, 44 Or., 543; Ball v. Association, 64 N. H., 291; Modern Woodmen v. Lane, 62 Neb., 89; Thornburg v. Association, 122 Iowa, 260; Modem Woodmen v. Colman, 68 Neb., 660; Pringle v. Modern Woodmen, 76 Ñeb., 384; Insurance Co. v. Logan (Ky), 149 S. W., 922; Association v. Robinson, 149 Ky., 80; Walker v. Independent Foresters, 162 Ill. App., 30: Foresters v. Hollis, 70 Kan., 71; Trotter v. Lodge, 132 Iowa, 513. 6. SAME. Waiver of forfeiture by deputy executive officer of a fraternal benefit society, when. A deputy executive officer of a fraternal benefit society, invested with all the authority and power pertaining to the chief executive office within the territory over which he has jurisdiction, and having authority to initiate members into the order and to accept them as proper risks, subject to the ratification of the home office, to collect and remit initial and subsequent premiums, and to deliver the policy or contract of insurance when received from the home office, has authority to waive a provision for forfeiture contained in the constitution and by-laws. {Post, pp. 524, 525, 632, 533.) Case cited and approved: Trotter v. Lodge, 132 Iowa, 513 (citing cases). ,7. SAME. Benefit society’s waiver of forfeiture by its deputy executive officer’s delivery of certificate, with knowledge of applicant’s sickness. Where the applicant for membership in a benefit society, after making the application, and after his physical examination by the society’s examining physician, learned that he had acute nephritis; but a deputy executive officer, having, within his territory, all the authority and power pertaining to the chief executive office, with knowledge that the member was suffering from such disease, subsequently delivered the certificate to him, contrary to a provision of the constitution and by-laws of the society that an applicant who might be ill when he presented himself for initiation should, not be initiated, even though ihe had been duly examined and recommended by the examining physician, and the society subsequently assessed and collected the assessments due under the certificate, the said provision of the constitution and by-laws was waived, and society was liable on the certificate, especially where there was no purpose on the part of the member to deceive or mislead the society by concealing such disease at the time of the application or initiation.
127 Tenn. 535Mahon v. State (1912)
L JURY. Error in designation and appointment of special panel by trial judge, under erroneous impression as to recently enacted statute, may be waived, when. The error of the trial judge in designating and appointing a special panel of jurors for the trial of the accused, under the erroneous impression that it was his duty to do so under a recently enacted statute, was not ground for reversal, where he invited objection from the counsel for the State and the defense, and inferentially offered to have the sheriff select and summon a panel under the law prior to ■ such statute, if counsel would consent, but no objection was made to the designation and appointment thereof by the trial judge. (Post, pp. 539-542.) Acts cited and construed: Private Acts 1911, ch. 115. Case cited and approved: Hobbs t. State, 121 Tenn., 413. 2. SAME. Challenge to array o.r motion to quash panel must be in writing. The challenge to the array or the motion to quash-the panel mnsjt, hé in writftg, and must specifically point out, with particularly, '■ the grounds relied upon for setting the panel aside. The reason of the rule seems to he that the challenge and motion are informal pleadings, and all pleadings in courts of record must be in writing. [Post, pp. 542, 543.) Cases cited and approved: People v. Brown, 48 Cal., 253; People v. Collins, 105’Cal.,' 504; State v. Davis, 41 liAta, 311; State v. Knight, 43 Me., 11; People v. Doe, 1 Mich., 451; State v. Taylor, 134 Mo., 109; Cox v. People, 80 N. Y., 500; Cooley v. State, 38 Tex., 636; Perry v. State (Tex. Cr. App.), 34 S. W., 618. 3. SAME. Formation of opinion from conversation with witness, requiring proof for its removal, renders juror Incompetent. Where a talesman had talked with a witness for the State, and from his conversation with the witness formed an opinion manifestly hostile to the accused, and on his voir dire examination stated that he entertained the opinion at that time, but could lay it aside, and give the accused a fair and impartial trial, and try the case according to law and the evidence, if there was proof to remove the opinion, the juror was incompetent, and the trial judge erred in holding him to be competent. (Post, pp. 643, 644.) 4. SAME. Same. Formation of opinion from conversation with person who had talked with witnesses, requiring proof for its removal, renders juror incompetent. Where a talesman had been told how a killing occurred, by a per-qop who, he understood, had ascertained the facts from witnesses, and, from .his information, had formed an opinion.. • ■ which he entertained at the time of his. voir dire examination, and which, he said, it would take proof-to remove, but testified-that the «pinion would not have any weight with him if the proof was sufficient, the juror was incompetent, and the trial judge erred in holding him to be competent. (Post, pp. 543, 544.) 6. CRIMINAL LAW. Error in compelling accused to accept a competent juror, objectionable to him, after exhaustion of his peremptory challenges on jurors erroneously held to be competent. Under our statute (Acts 1911, ch. 32), providing that no verdict or judgment shall be set aside or ■ new trial granted for any error in procedure in the cause, unless in the opinion of the appellate court, to which application is made, after an examination of the entire record, it shall affirmatively appear that the error complained of has affected the result of the trial, where the trial judge erroneously held jurors to be competent, and they were thereupon peremptorily challenged, and, by reason of the exhaustion of his peremptory challenges, the accused was compelled to accept a juror objectionable to him, but who was competent, qualified, and impartial under the law, such error was not ground for reversal. (Post, pp. 544-546.) Acts cited and construed: Acts 1911, ch. 32. Cases cited and approved: Wooten v. State, 99 Tenn., 189; Brinkley v. State, 125 Tenn., 371. Cases cited and distinguished: Wooten v. State, 99 Tenn., 189; K. of P. v. Steele, 108 Tenn., 624. 6. SAME. Same. Statute construed to require supreme court to disregard error in compelling accused to accept competent jurors after exhaustion of peremptory challenges under erroneous holding of court, Is not unconstitutional. The statute (Acts 1911, ch. 32), providing that no verdict or judgment shall be set aside or new trial granted for error in any procedure in the cause, unless it shall, affirmatively appear that the error complained of has affected the result of the trial, when construed to require the appellate court to disregard errors in holding jurors competent which necessitated the exhaustion of the peremptory challenges by the accused, and resulted in his being compelled to accept a juror who was legally competent and qualified, but who was objectionable to the accused, and whom he would have peremptorily challenged is not unconstitutional, because, while the constitution guarantees to the áccused a fair and impartial trial, which necessarily includes a trial by a fair and impartial jury, yet the constitution does not secure to him the right peremptorily to - challenge proposed jurors, but ■this right is given only by statute, and may be taken away or regulated by statute. (Post, pp. 546-548.) Acts cited and construed: Acts 1911, ch. 32.' Constitution cited and construed: Art. 1, secs. 8, 9, and 14; art. 6, sec. 9;:iart. 11, see. 2. Cases cited and approved: Wooten v. State, 99 Tenn., 189; Brinkley v. State, 125 Tenn., 371. 7. SAME. Conviction not reversed upon evidence, unless it preponderates against verdict and in favor of innocence. The supreme court will not reverse a conviction, upon the evidence, unless the evidence preponderates against the verdict and in favor of the innocence of the accused; for, in the supreme court, the burden is upon the accused to show his innocence by a preponderance of the evidence. (Post, pp. 548, 549.) Case cited and approved: Cooper v. State, 123 Tenn., 37. 8. SAME. Same. What evidence is disregarded or not considered on appeal from conviction. On appeal from a conviction in' a criminal case, in determining whether the evidence preponderates against the verdict, immaterial conflicts in the testimbny • are not considered; discrepancies in dates and distances^ which are not controlling in their materiality,'are disregarded; and in many cases, the mere weight to ' be given to the testimony, arising out of the number of witnesses and their general reputation, is disregarded, because these questions are all deemed to have been settled by the jury and '•rial judge, who saw the witnesses on the stand. (Post, p, 649.) " .... 9. MURDER IN SECOND DEGREE. Evidence held sufficient to support verdict and conviction. The evidence on a trial for homicide is stated, reviewed, and Held to be sufficient to support a verdict and conviction for murder in the second degree. (Post, pp. 549-556.)’
127 Tenn. 557Ford v. Hurt (1913)
1. REMAINDERMEN. Suit by sole existing contingent remain-dermen as representatives of class that may take can maintain suit to protect estate and to annul fraudulent tax title. ■Where a testator devised land to a daughter for life, with'-remainder to be equally divided at her death among such of her children or their representatives as might survive her, or if she left no children or their representatives surviving her, then to the testator’s heirs or distributees; and the daughter sold and conveyed the land to a third person by a deed in which her children, since deceased, joined; and thereafter such purchaser, with the design to defeat the remainder estate, purposely allowed the lands to be sold for taxes, with the payment of which he was charged by law, and caused the same to be purchased at the tax sale by his relative and agent, it was held that such daughter’s grandchildren, as the sole existing contingent remainder-men representing the class that may take the remainder estate can maintain a bill to set aside such tax title and to protect the estate, whether they or others responding to the class at the death of the devisee for life shall actually take under the will; for, in this State, a remainder estate, though contingent, presently vests in the described class as a class, and they may protect the estate so vested, whether they or others shall actually take under the will. .f Cases cited and approved: Satterfield v. Mays, 11 Hum., 58; Nichols v, Guthrie, 109 Tenn., 538. 2. AMENDMENT. Certiorari disallowed as to overruling of demurrer may be allowed so as to grant amendment to bill. Though the court of civil appels reached the correct result in overruling the demurrer-to the .bill, yet the petition, for. ueritoi wri will be allowed, to the end that the supreme court may decree touching an amendment to the bill, prayed for by complainants, and improperly disallowed by the chancellor. (Post, p. 560.)
127 Tenn. 561Brasfield v. Mayor of Milan (1913)
1. BAIL. Deposit of money in lieu of bail must be authorized by statute. Unless expressly authorized by statute,, no judicial officer or other, official, empowered to admit to hail persons accused of crime, has a right to accept a deposit of money in lieu of bail, or as a. substitute for a recognizance. (Post, p. 564.) Cases cited and approved: Snyder v. Gross, 69 Neb., 340; Butler, v. Foster, 14 Ala., 323; Applegate v. Young, 62 Kan., 100; Cplum-bus v. Dunnick, 41 Ohio St., 602; Eagan v. Stevens, 39 Hun (»i. Y.), 311. 2. SAME. Deposit of money in lieu of bail, when not authorized by charter or ordinance, is void, and money may be recovered by depositor. Reserving the question whether, under the charter of the town of Milan, providing for the arrest of persons violating ordinances, and the taking of bonds for their appearance, it was permissible for the city authorities (the legislative council) to enact an ordinance authorizing the acceptance of deposits of money in lieu of bail bonds, it is decided that, where there was no such ordinance, the city marshal had no authority to accept a deposit of money in lieu of a bail bond, and that a forfeiture of such deposit by the city authorities, upon the ground of the nonappearance of the accused, was void, and conferred upon the city no title to the money. (Post, pp. 562-564.) Cases cited and approved: Applegate ▼. Young, 62 Kan., 100; Eagan v. Stevens, 39 Hun. (N. Y.), 311; Snyder v. Gross, 69 Neb., 340. . 3. SAME. Unauthorized deposit of money in lieu of bail bond may be recovered by depositor, though a third person. Where a city marshal, without authority of law, accepted a deposit of money in lieu of bail bond from the brother of a person arrested upon the charge of violating a municipal ordinance, and the city authorities, without any justification in law, caused such deposit to he declared forfeited for the nonappearance of the accused, the money so deposited may be recovered by the brother depositing the same, where the money was his; for the money so deposited is not conclusively presumed to be that of the accused. (Post, pp. 564, 565.) Code cited and construed: Secs. 7131-7135 (S.); secs. 5397-6001 (M. & V.); secs. 5167-5171 (T. & S. and 1858). Case cited, approved, and distinguished: State v. Ross, 100 Tenn., 303.
127 Tenn. 566Southern Railway Co. v. Cumberland Telephone & Telegraph Co. (1913)
TELEPHONES. Subscriber for business telephone is not liable for long distance calls by another, without his consent to be charged therefor. When a long distance call Is made on a business telephone, the operator should require the name of the person calling; and, if that name be different from the name of the subscriber, the latter should be conferred with, and his consent to be charged therefor must be obtained before such charge can be validly entered against him. Therefore, an employee of a railroad company, who did not have a telephone in his own name, cannot render the company liable for his personal long distance calls on the telephone in the name of an officer of the railroad company.
127 Tenn. 571Memphis Street Railway Co. v. Caviness (1913)
COMMON CARRIERS. Payment of fare is not essential to create relation of carrier and passenger, and passenger riding free may recover for negligent personal injuries, when. The payment of fare is not necessarily essential to the establishment of the relation of carrier and passenger, and a person fairly accepted for transportation, like a paying passenger, may recover' for personal injuries resulting from want of ordinary care, or from negligence less in degree than gross and willful negligence, on .the part of the carrier. Therefore, where the defendant street railway company carried members of the city fire department free, without a pass, as a matter of courtesy, and plaintiff, a fireman, was injured by the carrier’s negligence while rding on a car, he was a passenger, and entitled to recover damages, like a paying passenger. Cases cited and approved: Washburn v. Railroad, 3 Head, G38; Marshall v. Railway & Light Co., 118 Tenn., 254 (explained); Railroad v. Derby, 14 How. (U. S.), 468; Traction, etc., Co. v. Lawson, 74 C. C. A., 630; Railroad v. O’Keefe, 168 Ill, 115; Traction, etc, Co. v. Klentschy, 167 Ind, 598.
127 Tenn. 575State ex rel. Cates v. West Tennessee Land Co. (1913)
1. NAVIGABLE WATERS. And lands underlying are not susceptible of private ownership. Where a body of water is navigable in the technical legal sense of that term, neither the water nor the land underlying it is susceptible of private ownership. (Post, p. 580.) 2. SAME. Navigable rivers are defined. “Navigable rivers” are rivers which are in fact capable of being navigated, in the ordinary state of the water, ascending and descending, by vessels employed in the ordinary purposes of commerce, regardless of the mode of propulsion. (Post, pp. 584-586.) Cases cited and approved: Elder v. Burrus, 6 Humph., 358; Stuart v. Clark, 2 Swan, 9. 3. SAME. Reelfoot Lake is of sufficient depth, width, and volume to make it navigable in the strict technical legal sense. Reelfoot Lake was formed by an earthquake in 1810, which lowered the lands, with the timber thereon, several feet. The lake is from two to seven miles wide, and about fifteen miles long, with an average depth of about seven feet, except at two points, and at places along the greater distance of the shore lines, where the water is only a few inches deep for several yards out into the lake. At the said two points, the water is, in its ordinary stage, from a few inches to two feet in depth for a .distance or width of between two hundred and three hundred yards. There are numerous pools from seven to twenty feet in depth; but they have no continuous, deep, open connection with the rest of the lake, and are surrounded by trees projecting above the water. or in the form of submerged stumps. A basin in the northern part of the lake is about two miles long, with an average depth of ten feet, and is open and free from obstructions, but is surrounded with timber and stumps; and the lake south of such basin is from five to seven miles wide and is several miles long, and is separated from the basin by shallow water two hundred yards wide, and from a few inches to two feet in depth. There are a number of other smaller basins, practically free from stumps and timber, in the southern portion of the lake, hut without open connection with each other or with the main body of water, on account of the stumps and timber. The lake has an overflow inlet and a continuous outlet with the Mississippi river, hut not of sufficient depth to form a navigable connection with that river. It is held that such lake, has sufficient capacity in depth, width, and volume of water to make it a navigable stream in the strict, technical, legal sense. (.Post, pp. 580-588.) 4. SAME. Distinguishing difference between waters ' navigable in legal sense and in ordinary sense is capacity, and the lega1 effect upon title. The distinguishing feature or difference between waters navigable In the technical legal sense and waters navigable in the ordinary sense is capacity in depth, width, and volume; and the legal effect of this difference is upon the title. Waters navigable in the legal sense belong to the public; but waters navigable only in the ordinary sense may be privately owned. (Post, p. 588.) 5. SAME. Legally navigable cannot be privately owned; ordinarily navigable owned by riparian proprietors subect to public easement. Streams navigable in the technical legal sense and the land! covered by them cannot be privately owned; and their natura and primary uses are in the public for navigation, commerce *nd fishing; but where the streams are not navigable in th< technical legal sense, the ownership of their beds is in th« riparia» proprietors, though the public have an easement therein for the purposes of transportation and commercial intercourse. (Tost, pp. 588, 589.) Cases cited and approved: Stuart v. Clark, 2 Swan, 9; Shively v. Bowlby, 152 U. S., L 6. SAME. Public rights In streams technically navigable. In addition to the right of navigation in streams technically navigable, the public have the rights of the ownership of the watér and the lands thereunder, as well as fishing and hunting privileges, and everything of value incident to the right of soil. (Tost, p. 589.) 7. SAME. Stream of sufficient capacity in depth, width, and volume to be legally navigable is not rendered legally non-navigable by stumps and trees. If a body of water has sufficient capacity in depth, width, and volume to be legally navigable, it is a navigable stream, whether actually used for navigation or not; and the fact that a legally navigable stream contains stumps and trees, so as to prevent its present actual navigation, will not prevent it from being a navigable stream. (Tost, pp. 689-596.) Cases cited and approved: Stuart v. Clark, 2 Swan, 9; The Daniel Ball, 77 U. S. (10 'Wall.), 557; The Montello,. 78 U. S., 411; State v. Guano Co., 22 S. C., 50; Heyward v. Mining Co., 42 S. C., 138.; Moore v. Sanborne, 2 Mich., 519; Brown v. Chadbourne, 31 Me., 9: Hickok v. Hine, 23 Ohio St., 523; Diedrich v. Railroad, 42 Wis., 248; Attorney-General v. Woods, 108 Mass., 436; Rowe v. Granite Bridge Corp., 21 Pick. (Mass.), 344; Railroad v. Brooks, 39 Ark., 403. Case cited and overruled. Webster v. Harris, 111 Tenn., 668. 8. ABANDONMENT. Not established by failure to take certain lands Into consideration in partition suit, when. It could not be claimed that submerged lands were abandoned because they were not taken into consideration in a partition suit, where the fisheries therein were not then deemed valuable or used, as such lands may have been omitted from the partition because not valuable for agricultural purposes or for .their timber. (Post, 696,, 597.) 9.SAME. Not presumed from failure to rnplude certain lands in partition, if such failure is explainable consistently with continued claim of land, when. If the conduct of the owners of certain land in not partitioning it, when the other lands owned by them as tenants in common were partitioned, can be explained consistently with their continued claim of the land, it will not be presumed that they abandoned it by their failure to include it in the partition proceedings. (Post, p. 597.) Case cited and approved: Phy v. Hatfield, 122 Tenn., 696. 10. NAVIGABLE WATERS. Owner of granted land is not deprived of title by its subsequent submergence into a navigable lake, when. The fact that land was submerged by a legally navigable lake, created by an earthquake, after the land was granted by the State, would not deprive the owners of their title to the land, if it can be reasonably identified. (Post, pp. 597-599.) Case cited and approved: McCullough v. Wall, i Rich. Law, 68. 11. SAME. Same. Such ownership of the submerged land entitles owner to exclusive fisheries over same; but not to prevent free movement of fish. The title and ownership of a private individual to part of the bed of a .navigable lake, under the conditions stated in the preceding headnote, carries with it the exclusive right of fishery in the in the waters over such part, though not the right of detaining the fish, or preventing their free'movement through the waters, i - (Post. p. 598.) 12. SAME. Lands thereunder are' not grantabie by State. The State cannot grant lands lying, under a legally navigable lake; for it holds such lands and the waters of the lake in trust for all the people. (Post, pp. 599, 600.) , . . Cases cited and approved: Elder v. Burrus, 6 Hum., 358; Stuart v, Clark, 2 Swan, 9. 13. SAME. Test of navigability applies to - lakes as well as streams. The rule that all bodies of water having sufficient depth and volume for the carriage of ordinary crafts of useful commerce are navigable applies to lakes as well as to streams. (Post, p. 600.) 14. SAME. Common law test of navigability is not in force here; reasons for both rules. The test of navigability of navigable streams in England, namely, the ebb and flow of the tide, and the reason underlying their rule, is not applicable to American streams, because the adoption and application of such a test would render some of the largest and most useful streams nonnavigable. (Post, p. 600.) Case cited and approved: Genesee Chief v. Pitzhugh, 12 How., 443.
127 Tenn. 662Eason v. Gaines (1913)
APPEALS. Lie from probate court of Shelby county to court of , civil appeals where amount involved does not exceed one thousand dollars. Under the statute (Acts 1870, ch. 86, Shannon’s Code, sec. 387), providing that appeals from the probate court of. Shelby county shall lie directly to the supreme court, and to no other court; and under the statute (Acts 1907, ch. 82), creating the court of civil appeals, and construed to provide (in section 7 thereof) that appeals from the probate court of Shelby county that formerly (under the first mentioned act) lay to the supreme court should lie to the court of civil appeals, where the amount involved does not exceed one thousand dollars, because the later statute operated to supersede the former statute to the extent that it provided that such appeals should lie to no other court than the supreme court, so that appeals from said probate involving an amount not in excess of one thousand dollars lie to the court of civil appeals, and not to the supreme court. Code cited and construed: Sec. 387 (S.); sec. 354 (M. & V. ); sec. 316h (T. & S.). Acts cited and construed: Acts 1870, ch. 86; Acts 1907, ch. 82, sec. 7: ..
127 Tenn. 665Shaller v. Garrett (1913)
1. WILLS. Proceeding to set aside probate in common form presents a preliminary controversy, requiring a decision, with right of appeal, before the contest. A proceeding in the county court to set aside the common form probate of a will is a distinct matter of preliminary investigation, constituting the corpus of a legal contestation, proper to be settled, finally, before the issue of devisavit vel non shall he tried; and a preliminary appeal lies from the judgment in such controversy before the trial of the issue of devisavit vel ■non. (.Post, p. 667.) Cases cited and approved: Wynne v. Spiers, 7 Humph., 406-410; Keith v. Raglan, 1 Cold., 474; Crocker v. Balch, 104 Tenn., 6; Cowan v. Walker, 117 Tenn., 140. 2. APPEAL. To the circuit court lies from judgment of county court in proceeding to set aside common form probate of will. A preliminary appeal lies to the circuit court from the judgment of the county court in a proceeding to set aside the common form probate of a will. (Post, pp. 667, 668.) Case cited and approved: Wynne v. Spiers, 7 Humph., 406-410. 2. SAME. Same. From judgment of probate court of Shelby county in proceeding to set aside common form probate of will lies to court of civil appeals. Under the statute (Acts 1870, ch. 86, Shannon’s Code, sec. 387), creating the probate court of Shelby county, and providing that from that court an appeal shall lie directly to the supreme court, and to no other court, an appeal from the judgment of: such probate court lay. to the supreme court, and not to the. circuit court; but under the statute (Acts 1907, ch. 82), creating the court of civil appeals, and construed to provide that the appeals from said probate court that formerly (under the first mentioned act) lay to the supreme court should lie to the court of civil appeals, where the amount involved does not exceed one thousand dollars, an appeal to the court of civil appeals lies from the judgment of said probate court dismissing a petition- to set aside the common form probate' of an alleged will. Code cited and construed: Sec. 387 (S.); sec. 354 (M. & V.); sec. 316h (T. & S..). Acts cited and construed: Acts 1870, ch. 88; Acts 1907, ch. 82. Cases cited and approved: Key v. Harris, 116 Tenn., 161; Eason v. Gaines, 127 Tenn., 662.
127 Tenn. 669Citizens' Bank v. H. A. Klyce Co. (1913)
MECHANICS’ LIENS. Mechanic waives his lien to the extent that he takes notes of the owner maturing after the expiration of the lien. Under the statute (Shannon’s Code, sees. 3531 and 3539), providing for mechanics’ liens, and that they shall continue for one year only after the work is finished or the materials are furnished, and until the decision of any suit brought thereon, within that time, a mechanic and materialman installing certain machinery in the plant and property, of the owner, by taking in part payment notes, some of which did not mature for more than a year after the materials were furnished and the work was finished, waived his lien to the extent of the notes maturing after the expiration of the statutory lien, because such extension of credit prevented the lien claimant from beginning suit until after the maturity of such notes; hut the lien was not waived to the extent of the notes maturing before the expiration of the statutory lien period. Code cited and construed; Secs. 3531, 3539 (S.); secs. 2739, 2740, 2745 (M. & V.); secs. 1981, 1981a, 1985 (T. & S. and 1858). Cases cited and approved: Manufacturing Co. v. Weatherly, 101 Tenn., 318; Air Brake Co. v. Railroad, 71 C. C. A., 1; Ehlers v. Elder, 51 Miss., 495; Flenniken v. Liscoe, 64 Minn., 269; Fry» j. White. 16 B. Mon. (Ky.), 605.
127 Tenn. 673Turney v. Mobile & Ohio Railroad (1913)
1. ACCORD AND SATISFACTION. Set aside without infant’s return or tender of consideration received, where same has been expended, wasted, or squandered. An infant may disaffirm the settlement of a personal injury claim, and sue for the damages, without returning or tendering the consideration received by him in accord and satisfaction thereof, where the same has passed from his hands, either by expenditure or waste during his minority; for to hold otherwise would be practically to debar him from the protection of his infancy and against the effects of his folly and indiscretion, and to thwart or circumvent the safeguards intended for his protection, and to protect the person so dealing with the infant in disregard of the rules laid down for the protection of infants against the effects of their folly and indiscretion. (Post, pp. 675-677.) Cases cited and approved: Nichol v. Steger, 6 Lea, 393; Lane v. Dayton, etc., Co. 101 Tenn., 581; MacGreal v. Taylor, 167 U. S., 688; Craig v. Van Bebber, 100 Mo., 584; Worthy v. Oil Mill, 11 L. R. A. (N. S.), 692, notes; Wuller v. Grocery Co., 241 Ill., 398; Putnal v. Walker, 61 Fla., 720; Englebert v. Prichett, 26 L. R. A., 177, note. 2. SAME. Same. Infant may avoid settlement of personal injury claim, without returning or tendering consideration received by his mother, as next friend or parent. An infant may disaffirm the settlement of a personal injury claim, and sue for the damages, without returning or tendering the consideration paid to his mother, who joined in-the settlement and received a lump sum for her loss of the services of the infant plaintiff during his minority, and of his claim for personal injuries, without defining any particular portion as his; for, whether the mother had authority, as next friend or parent, to enter into the settlement for the minor, the rule is that, where the consideration was: not paid. to the. infant, but to the parent, the infant is under no obligation to return or tender such consideration in. order to disaffirm the settlement. {Post, p. 678.) Cases cited .and approved: Green v. Perkins, 3 Lea, 491; Cody .v. Iron Co., 105 Tenn., 516; Railroad v. Lasca, 79 Kan., 311; GrifiBs v. Younger, 41 N. C., 620; Stull v.'Harris, 51 Ark., 294; .Vogelsang v. Null, 67 Tex., 465. 3. SAME. Same. .Same. Infant sustaining personal injuries lacks capacity to consent to or1 direct payment, or to receipt for same. An infant sustaining a personal injury lacks legal capacity to consent to or direct payment in settlement therefor to his mother, or to execute a receipt to the owrongdoer, in settlement thereof. (Post, pp, 678, 679.) Case cited and approved: Vogelsang v. Null, 67 Tex., 465.
127 Tenn. 680Agee v. Saunders (1913)
1. ADMINISTRATION. “Assets” are defined as those subject to payment of debts; and year’s support must be set apart out of personal assets liable for debts. The term “assets,” as applied to the administration of the estate of a decedent means, in its largest sense, property subject to the payment of the debts of the decedent, and includes all the decedent’s property, except such as is specially exempt by law from liability for his debts. It is divided into personal, real, and equitable assets. Personal assets are those which go to the administrator for the payment of debts; and it is out of this class of property that the year’s support must be set apart. Real assets consist of land, which must be subjected by special proceedings. Equitable assets may be either real or personal, but require the aid of a court of equity for their subjection, owing to their nature, usually based on some provision in a will. (Post, pp. 681-684.) Code cited and construed: Secs. 3985, 4620 (S.); secs. 3090, 3125 (M. & V.); secs. 2252, 2285 (T. & S. and 1858). 2. SAME. Year’s support cannot be set apart out of proceeds of insurance policy on husband's life, payable to his estate, because exempt to widow and children. The year’s support for the widow and her family must be set apart out of personal assets liable to the payment of the debts of the decedent, and cannot be set apart out of the exemptions; and, therefore, cannot be set apart out of the proceeds of a policy of insurance on the husband’s life, payable to his estate, because such fund inures to the benefit of his widow and children, and is exempt from the payment of his debts. While the year's support is itself an exemption, it cannot invade the other two classes of exemptions, namely, (1) the exemption of specific articles of personalty to the husband as the head of the family that vest, on Ms death, in his widow' and children, and (2) the proceeds of insurance policies on the husband’s life. (Post, pp. 68.4, 685.) Code cited and construed: Secs. 4020, 4023, 4030, 4231 (S.); secs. 3125, 3128, 3135, 3335 (M. &.Y.); secs. 228.5¿, £288,,.2289, 2294, 2478 (T. & S: and 1858).
127 Tenn. 686Forest Hill Cemetery Co. v. Creath (1913)
1. TAXATION. Real estate, permanent improvements thereon, and the improvement fund of an incorporated cemetery company, may be exempted by statute from taxation. Where a cemetery corporation is, by its charter, empowered to acquire real estate “to be used as a cemetery or burying ground forever,” and to hold gifts for the improvement of the cemetery, and is required, by .its charter, to set apart one-fourth of the proceeds of the sales of lot's for an improvement fund, whose preservation and application may be enforced by the lot purchasers or their descendants, such property is held for a public purpose, and the real estate and the permanent improvements thereon, necessary to its use as a cemetery, and the improvement fund of such cemetery corporation are held for a charitable purpose," within the meaning of the constitutional provision (art. 2, sec. 28) that the legislature may exempt from taxation property used! for charitable purposes; and, therefore, the statute (Acts 1907, ch. 602) exempting cemeteries from taxation is valid and constitutional, and operates to exempt from taxation the real estate and improvements, and the improvement fund, which for purposes of taxation, must be' treated- as realty. {Post, pp. 688-69L) Acts cited and construed; Acts 1907, ch. 602. Constitution cited and construed: Art. 2, see. 28. Case cited and approved: Railroad v. Cemetery Co., 116 Tenn., 400. 2. SAME. Statute exempting cemeteries from taxation does not operate to exempt personal effects of an incorporated cemetery company. The statute (Acts 1907, ch. 602), exempting all cemeteries and places of burial from taxation indicates place or premise's, and does not operate to exempt from taxation the personal effects of an incorporated cemetery company. (Post, p. '691) Acts cited and construed: Acts 1907, ch. 602. Cases cited and approved: State v. Casey, 210 Mo., 235; Cemetery Association v. Linden, 73 N. J. Law, 421. 3. SAME. Statute taxing cemetery stock at its value, less assessed value of realty and tangible property, requires value of such property to be deducted, whether exempt or not. The statute (Acts 1907, ch. 602), exempting from taxation cemeteries, and providing that the stock of any cemetery corporation. shall he assessed, as the property of the stockholders, at not less than the actual cash value, less the assessed value of realty and tangible property of the corporation, subjects the stock to taxation at its full value, less the value of the real estate and tangible property of the corporation, whether exempt or not (Post, pp. 689, 691, 692.) Acts cited and construed: Acts 1907, ch. 602. 4. CEMETERIES. Grant for maintenance of a public Incorporated cemetery will be upheld as a pious and charitable use, when. It is not to be doubted that a grant for the maintenance of an incorporated public cemetery, as contradistinguished from a grant for the maintenance of private graves, is to be upheld as being in the nature of a pious and charitable use. (Post, p. 691.) Cases cited and approved: Hornberger v. Hornberger, 12 Heisk.,' 635; Hopkins v. G-rimshaw, 165 TJ. S., 342; In re Vaughan,. 33 Chy. D., 187; In re Mauser, 1 Chy., 68; Johnson v. Holified, 79 Ala., 423; Hoeffer v. Clogan, 171 Ill., 462.
127 Tenn. 693Mattix v. Swepston (1913)
1. ACTIONS. "Cause of action” may include what. Without attempting to give an inflexible definition, it may be stated generally that a “cause of action” includes all the facts which together constitute the plaintiff’s right to maintain the action. (Post. p. 697.) Cases cited and approved: Post v. Campau, 42 Mich., 96; Marquat v. Marquat, 12 N. Y., 341. ■ ■ 2. SAME. Whether action is local or transitory must be determined by what test. A true statement of the test between a local and a transitory action is whether the injury is done to a subject-matter which, in its nature, could not arise beyond the locality of its situation, in contradistinction to the subject causing the injury. The most typical illustration of a local action is an injury to real estate, and of a transitory action is an injury to the person. (Post, pp. 697, 698.) Case cited and approved: Gunther v. Dranbauer, 86 Md., 1. 3. SAME. Action for obstruction of right of way existing in privity of contract, and not in privity of estate or title, ¡3 transitory, and not local. Where plaintiffs purchased from the landowner the standing timber on certain lands in another State, and the landowner also granted to them a right of way over his other adjacent lands, for the purpose of hauling the timber to the railroad; and the landowner subsequently leased such adjacent lands, to the defendant, who, notwithstanding his knowledge of plaintiffs' rights in the premises at the time he made his contract •f lease, by obstructing the right of way and maintaining the bjr threats of violence, presented plaintiffs from • ' ' using it, and thereby causing them to default in the performance of their contracts for the delivery of timber, which resulted in their bankruptcy, it was held that the right of action, for such obstruction was transitory, and could be maintained in this State, where defendant was found, because the plaintiffs’ right to use the way did not arise in privity of estate or title with such landowner, but' existed in privity of1 contract alone, • and was merely appurtenant to the right toi cut and remove the timber; and the cause of action did not consist alone of the defendant’s wrongful conduct, but embraced plaintiffs’ rights under the contract which were destroyed by de-i feadant’s misconduct. (Post, pp. 698-700.) Cases cited and approved: Nunnelly v. Iron Co., 94 Tenn., 413; Lo.ng v. Mayberry, 96 Tenn., 378; Siate v. District Court, 9-4, Minn., 370. 4. APPURTENANCES. A thing appurtenant Is defined. A thing appurtenant is a thing used with and related to or dependent upon another thing more worthy, and agreeing in its nature and quality with the thing whereunto it is appendant or appurtenant (Post, pp. 698, 699.) Case cited and approved: Lucas v. Bishop, 15 Lea, 167. '
127 Tenn. 701Sanders v. Riddick (1913)
1. ATTORNEY AND CLIENT. Contract for percentage compen* sation, graduated according to amount of recovery, is fixed by amount of recovery in trial court, and each is entitled t© interest on his aliquot part. Under a contract by which attorneys for the plaintiff in a personal injury case were to have as their fee one-third of the amount of the recovery if under $12,000, and one-fourth of the recovery if it was $12,000 or over, such fees to include services in the supreme court, where judgment was recovered in the circuit court for $11,500, and affirmed on appeal after the accrued interest made the aggregate sum collected over $12,000, the attorneys were entitled to one-third of the sum collected; for the “recovery” was the judgment obtained in the circuit court, and the interest accrued, in legal contemplation, on the respective aliquot parts. (Post, pp. 703-706.) Case cited and approved: Bassford v. Johnson, 172 N. Y., 488. 2. SAME. Expense of printing briefs must be borne by client, and not by attorney, when. The expenses of a lawsuit are the expenses of the client; and, in the absence of any special agreement, the expense of printing the briefs must be borne by the client, and not by the attorney. (Post, p. 706.) Cas© cited and approved: Bonynge v. Field, 81 N. Y., 159. 3. SAME. Same. Attorney's implied power to cause briefs to bo printed at expense of client. Attorneys have implied power to cause briefs to be printed at the expense of .their client, who is burdened with the expenditure, if reasonable. (Post, pp. 706, 707.) Cases cited and approved: Horhstein'v. Crandall, 156 Ill. App., 520; Tyrrel v. Hammerstein, 33 Mise. Rep., 505, 67 N. Y. Supp., 717; Tyrrel v. Milliken, 135 Mo. App., 293; Miller' v. Palmier, 25 Ind. App., 357; Tobler v. Nevitt, 132 Am. St. Rep., 161. 4. SAME. Contract for certain percentage fee for services in a lawsuit does not entitle attorneys to personal expenses in attending. court. Where the plaintiffs’ attorneys contracted to accept a specified percentage of the recovery as their fee, which was to include services in the supreme court, they were not entitled to railway fares and hotel bills incurred by them in attending the appellate courts, because the contract contemplated that the stipulated fee should cover all services necessarily incidental to the proper conduct of the case, and the attendance of the attorneys to that end, and burdened them with any expense incident to being at the place the services were to be performed. (Post, p. 707.)
127 Tenn. 708Crenshaw v. Knight's Estate (1913)
(COLLATERAL INHERITANCE AND SUCCESSION TAX. Life or mortality tables are not applicable in valuing life annuities, where annuitant is in a very low state of heath. The statute (Shannon’s Code, sec. 737), requiring the fixing of the cash value of annuities and life estates for the assessment of the collateral inheritance and succession tax, and providing that, in fixing the value, the computation shall be made by the Carlisle Life Tables, whenever the use thereof is necessary or applicable, does not malte the Carlisle Tables conclusive; but it is the duty of the officers- and the courts to hear and consider testimony as to the age, habits, and health of the annuitant or life tenant, and the character of his occupation, if it be hazardous, and where the life annuitant or life tenant is in a very low state of health, with little promise of life, it is improper to consider life or mortality tables in determining the expectancy of life. Code cited aiid construed: Sec. 737 (S.). Acts cited and construed: Acts 1893, ch. 174, sec. 12. Cases cited and approved: Carnes v. Polk, 5 Heis., 244; Railroad v. Spence, 93 Tenn., 173; State v. Alston, 94 Tenn., 674; Railroad v. Berry, 118 Tenn., 581.
127 Tenn. 713White v. McMath (1913)
FROM SHELBY. Appeal from the Circuit Court of Shelby County to the Court of Civil Appeals, and by writ of certiorari from the Court of Civil Appeals to the Supreme Court.
127 Tenn. 720United States Fidelity & Guaranty Co. v. People's Bank (1913)
1. ‘ BANKS AND BANKING. Bank knowingly permitting the deposit of guardian funds to the personal account' of the guardian is, jointly with him, guilty of a conversion and liable therefor. Where a guardian, holding a cheek representing guardianship funds, but payable to himself individually, deposited it to his personal credit in a bank, whose assistant cashier had knowledge of .the facts and permitted such deposit,, and the guardian thereafter used^ íor: his:-personal, benefit, - the« funds represented by the credit, and then absconded, the guardian and the bank •, were both guilty of a conversion of the fund, completed by the entry of the eheck to the guardian’s personal credit, whereby the misuse of the funds by the guardian was thus made easy and expeditious, through checks drawn and signed with his personal name; and the bank thus became a trustee of the fund, and could- only be relieved from liability to account therefor by the guardian’s subsequent true administration of the guardianship estate and his accounting therefor, though the guardian promised the bank, at the time of the entry of the deposit, that he would faithfully administer the fund and keep a true account thereof on his own private books; for the bank took this risk, and could not lawfully impose such risk on -the wards, and it was the folly of the bank to trust the guardian’s such promise. (Pasf, VP- 722-725.) Cases cited and approved: Draper v. Joiner, 9 Humph., 612, 615; Clark v. State, 7 Cold., 806, 322; Sanders v. Forgasson, 3 Bax., 855; Brocchus v. Morgan, 3 Shannon’s Cases, 667; Covington v. Anderson, JG Laa, 310; Caulkins v. Gaslight Co., 85 Tenn., 683; Bank v. l/aastey, 99 Tenn., 293; Duckett v. Bank, 86 Md, 400. 2. SAME. Same. Guardian’s surety, having, paid anridunt of such conversion, is entitled to be subrogated to rights of t wards against such bank. Where* a guardian deposited guardianship funds to his personal credit in a bank, in which conversion the bank knowingly par-. ticipated, it became personally liable for the fund as cotrustee with the guardian, and owed the money to the wards as much as the guardian- owed it, and where the guardian thereafter used the funds so deposited for his personal benefit, and then absconded, his surety, paying the wards, was entitled to be sub-rogated to the rights of the wards against the bank, and to recover from it the total- deposit, and not merely a small over- ‘ draft at the time of the making of the deposit. (Post, pp. 725,-726.) Cases cited and approved: Smith v. Alexander, 4 Sneed, 482, 487-489; Bittick v. Wilkins, 7 Heisk., 307; Holt v. Strain, 2 Shannon’s Cases, 166; Fidelity & Guaranty Co. v. Adoue, 137 S. W. (Tex.), 648, 37 L. R. A. (N. S.), 418; Bank v. Fidelity & Deposit Co., 129 Ga., 126; Fox v. Alexander, 36 N. C., 340; Rhame y. Lewis, 13 Rich. Eg. (S. C.), 269.