129 Tenn.

Volume 129 — Tennessee Reports

52 opinions

129 Tenn. 1King v. Patterson (1913)
1. ATTACHMENT. Necessary parties. Attachment of mortgaged property, A creditor attaching the property of a nonresident debtor under Shannon’s Code, sec. 5211, must, where the legal title is in a mortgagee, mate the mortgagee a party defendant; for otherwise the mortgagee may assert his rights and cut off the attachment by foreclosure, and the property, if sold under the attachment, will not bring a fair price. (Post, pp. 11-17.) Code cited and construed: Secs. 5211, 5218 (S.) Cases cited and approved: Lane v. Marshall, 48 Tenn., 30; Rice .v O’Keefe, 53 Tenn., 638; Lyle v. Longley, 65 Tenn., 288; Fulghum v. Cotton, 74 Tenn., 596; Cloud v. Hamilton, 11 Tenn., 82; Craig Miles v. Hays, 75 Tenn., 720; Schultz v. Black-ford, 77 Tenn., 431; Hall v. Fulgham, 86 Tenn., 451; Bridges v. Cooper, 98 Tenn., 382; McClung v. McSpadden, 101 Tenn., 434; Blackburn v. Clarke, 85 Tenn., 506; Jackson V. Coffman, 110 Tenn., 272; Railroad v. Todd, 58 Tenn., 556. 2. ATTACHMENT. Proceeding. Amendment. Where numerous creditors of a nonresident debtor were striving for priority by attachments on his property, complainants, who did not join as a party the mortgagee of land which they attached, are not entitled to permission to amend their bill so as to correct the defect; defendants haying already acquired valid attachment liens thereon, having made the mortgagee a party. (Post, pp. 17, 18.) ' • 3. ATTACHMENT. Motion to quash. Nonjoinder of parties. Waiver. Defendants and complainants filed separate bills for attachments on the property of a nonresident debtor. After consolidation of the suits, defendants moved to quash complainants’ attachments, and excepted to the report of the master fixing priority. Bold that, as defendants were not parties until the consolidation of the suits, their right to object to the failure of complainants to join the mortgagee of the debtor’s property, who was the holder of the legal title, as a party defendant had not been waived, and might be raised by the' objections made. (Post, p. 18.) 4. ATTACHMENT. Actions. Defenses. Mode of raising. Where numerous attachment suits were consolidated, motions to quash complainants’ attachments and exceptions to the report of the master fixing the priorities of the parties are the proper methods of raising the question whether complainants’ attachments were void for failure to join the holder of the legal title of the property attached. (Post, p. 18.) 5. MARSHALING ASSETS AND SECURITIES. Right to marshaling. Where numerous creditors who had no liens upon the property of their debtor all sought to acquire liens by attachments, some of which were not duly perfected for want of necesary parties, there can be no marshaling of assets between the successful and unsuccessful creditors; for the doctrine of marshaling arises only where one creditor has a lien upon two funds or two parcels of land, and another having a lien upon only one of them, in which case the first creditor will, in equity, be required to seek satisfaction first out of that fund or property upon which the second creditor has no lien. (Post, pp. 10-21.) Cases cited and distinguished: Gilliam et al. v. McCormack et ah, 85 Tenn., 610 White v. Fulghum, 87 Tenn., 282; Allen v. Gilliland, 74 Tenn., 534. Cases cited and approved: Meek v. Thompson, 99 Tenn., 732;. Whitmore v. Roscoe, 112 Tenn., 623-636; Gwynne v. Estes, 82; Tenn., 673; Parr v. Fumbanks, 79 Tenn., 394. 6. EQUITY. Pleading. Multifariousness. Under Shannon’s Code, sec. 6137, providing that the uniting in one bill of several matters of equity, distinct and unconnected, against one defendant is not multifariousness, the joining in one bill of attachment suits by numerous unsecured creditors does not render the bill multifarious. (.Post, pp. 22, 23.) 7. EQUITY. Pleading. Multifariousness. Where a bill by numerous attaching creditors also sought equitable relief, defendants must, under the direct provisions of Shannon’s Code, see. 6135, raise the objection of multifariousness by motion to dismiss or demurrer, or it will be waived. (Post, p. 23.) Code cited and construed: Sec. 6137 (S.).
129 Tenn. 24Menihan Co. v. Hopkins (1913)
1. MASTER AND SERVANT. Actions for wrongful discharge. Nature and form. Where a contract of employment for one year at an annual salary of $1500, hut payable in monthly installments of $125, was breached, by the employer, the remedy of the employee was an action for damages for the breach, and not for salary for the period after the discharge, since readiness of the employee to perform after discharge is not equivalent to performance, and such a contract is to be treated on breach as an entire and individual one, for the breach of which only one action will lie. (Post, p. 26.) Cases cited and approved: Tarbox v. Hertenstein, 63 Tenn., 78; East Tennessee, etc., Co. v. Staub, 75 Tenn., 397; Pierce v. Tennessee, etc., Co., 173 TJ. S., 1; Clark v. Manchester, 151 N. H. 594; James v. Allen County, 44 Ohio St., 226; Doherty v. Schip-per, 250 Ill., 128. 2. JUDGMENT. Merger and bar. Contract of employment. Recovery for breach. Where a servant is wrongfully discharged before the expiration of his contract of employment, any recovery in a suit by him for services for a part of such unexpired period before the period has .expired becomes res adjwdn'eaia, barring a subsequent action for services during a subsequent portion of the period. (Post, p. 27.) Case cited and distinguished: Olmstead v. Bach, 78 Md., 132. 3. MASTER AND SERVANT. Actions for wrongful discharge. Other employment as ground for reduction of damages. Where plaintiff was employed by defendant as its salesman for one year, and was wrongfully discharged before that time, defendant could, in an action for the wrongful discharge, set off in mitigation of damages any compensation received hy plaintiff under other employment during the unexpired period. {Post, pp. 28, 29.) Cases cited and approved: Children of Israel v. Peres, 42 Tenn., 620; Allen v. Maronne, 93 Tenn., 161.
129 Tenn. 30Philip Carey Roofing & Manufacturing Co. v. Black (1913)
1. MASTER AND SERVANT. Injuries to servant. Defective ladder. Simple tool. Assumed risk. Where plaintiff was injured by the breaking of a section of a ladder used to reach the roof of a house, such ladder as so used was a simple tool, the defective character of which was a risk which the servant ordinarily was required to assume as incident to his employment. (Post, pp. 32, 33.) Case cited and approved: Sivley v. Nixon Mining & Drill Co., 128 Tenn., 675. 2. MASTER AND SERVANT. Injuries to servant. Defective ladder. Master’s knowledge of defect. Effect. Where defendant’s superintendent had been notified of a defect in a ladder, by the subsequent breaking of which plaintiff was injured, but notwithstanding such notification the superintendent insisted that the ladder was safe, defendant would be liable for plaintiff’s injury while using the ladder without notice of the defect, which was not of such a nature as to be discoverable by observation which would naturally accompany its use. (Post, p. 34.) Cases cited and approved: Cuthrie v. Railroad, 79 Tenn., 372; Stork v. Charles Stolper Cooperage Co., 127 Wis., 318; Mercer v. Atlantic Coast Line R. Co., 154 N. C. 399. 3i. MASTER AND SERVANT. Injuries to servant. Tools. Duty to furnish. Inspection. Although the master is not required to inspect simple tools, previously furnished to the employee, to discover defects of which the employee using such implements should be aware, and although generally no inspection of a simple tool may be necessary at the time it is delivered to an employee, yet if the master furnishes such a tool, with a dangerous defect of which he has actual knowledge, he is negligent. (Post, p. 35.) 4. MASTER AND SERVANT. Injuries to servant. Descending ladder. Contributory negligence. A servant, who was injured by the breaking of a defective ladder, was not negligent as a matter of law because he descended the ladder with his back to the ladder, instead of backwards, which would have been more safe, under the rule that where an employee has two methods of doing his work, one of which is safe and the other dangerous, he is negligent if he adopts the dangerous method and is injured. (Post, pp. 35, 36.) 5. NEGLIGENCE. Contributory negligence. Questions for court or jury. Questions of negligence and contributory negligence are ordinarily for the jury, though the facts are undisputed, if intelligent minds may draw different conclusions as to whether, under the circumstances conceded, plaintiff’s conduct has been that of an ordinary prudent man. (Post, pp. 36, 37.) Cases cited and approved: Traction Co. v. Carroll, 113 Tenn., 514; Traction Co. v. Brown, 115 Tenn., 323; Cummings v. Wichita R., etc., C’o., 68 Kan., 218; Vindicator Consol. Gold Min. Co. v. Firstbrook, 36 Colo., 498; Merchants’ Ice Co. v. Bargholt, 129 Ky., 60; Burch v. Sou.'Pacific Co., 32 Nev., 75. 6. MASTER AND SERVANT. Injuries to servant. Request to charge. Where plaintiff was injured by the breaking of a defective ladder, and defendant claimed that the ladder was a simple tool the defective character of which was a risk that plaintiff assumed, it was error to refuse requests submitting the doctrine of simple tools. (Post, pp. 37, 38.)
129 Tenn. 39McMillan v. McKee (1913)
1.EASEMENTS. Selection of way. Selection by owner. Where a way by necessity, such, as a way over private grounds to a burial ground, has not been selected, the owner of the servient estate has a prior right to select the way, provided it be reasonable; but the route is to be determined by the reasonable convenience of both parties, and not by the sole interest of either. (Post, pp. 41, 42.) Cases cited and approved: Osborne v. Wise, L. R., 2 Ch. Div., 968; Holmes v. Seley, 19 Wend. (N. Y.), 507, 510; Russell v. Jackson, 2 Pick. (Mass.), 574; Ricley v. Welsh, 149 Ind., 214. 2.EASEMENTS. Way by necessity. A way by necessity passes by the presumed intention of the grantor, and hence should ordinarily be over such a route as the grantor would reasonably select. (Post, pp. 42, 43.) 3.EASEMENTS. Jurisdiction. Selection of way. A court of equity has jurisdiction to locate a way by necessity. ¡(Post, p. 43.) Oases cited and approved: Pearne v. Coal Co., 90 Tenn., 619; Ballard v. Titus, 157 Cal., 673; Blum v. Weston, 102 Cal., 362; Gardner v. Webster, 64 N. H. 522.
129 Tenn. 44King v. Tennessee Central Railroad (1913)
1. CARRIERS. Accidents to persons on track. Statutory lookout and warning. Plaintiff and his companion, desiring to board a train in the nighttime at a flag station, signaled it to stop. By reason of the fact that the signal was not given in time, the train ran about 100 yards beyond the station before it stopped. Plaintiff started down the track toward the train, but was struck by it as it was backing to the station at the rate of 3 or 4 miles an hour. The train had the usual rear lights, and the light inside the coach shown out through the glass of the rear door; but plaintiff testified that he did not see that the train was in motion until it struck him! Kent that, in such a case, Shannon’s Code, secs. 1574-1576, requiring certain lookouts on, and warnings to be given by, moving trains, does not apply, since the movement of the train in this case was a switching in its depot grounds, to which the statutes are not applicable. (Post, pp. 50-53.) Code cited and construed: Secs. 1166, 1167, 1168 (T. & S. and 1858); secs. 1547, 1575, 1576 (S.). Case cited and distinguished: Patton v. Railroad Co., 89 Tenn., 372. Cases cited and approved: Railroad Co. v. Rush, 83 Tenn., 160; Cox v. Railroad Co., 2 Leg. Rep., 168; Railroad v. Pugh, 95 Tenn., 421. 2. CARRIERS. Injuries to person on track. Contributory negligence. The railroad was not liable to the plaintiff under the common law, for the plaintiff had no legal right to suppose that the company would receive him as a passenger at the point where the train first stopped, and his action in walking dpwn to meet the train, without taking any care or precaution, was gross contributory negligence. (Post, pp. 52, 54.)
129 Tenn. 55St. Paul Fire & Marine Insurance v. Kirkpatrick (1913)
1. INSURANCE. Fire insurance. Waiver of forfeiture. Forfeiture of a fire policy by tbe sale by insured of tbe damaged property, when tbe policy gave tbe company tbe option of taking the part of tbe articles saved from tbe fire at tbe appraised value, -was waived by tbe company by thereafter demanding an arbitration and appraisement of tbe loss; such demand being equivalent to an admission of liability on the policy. (Post, p. 63.) 2. INSURANCE. Fire insurance. Admission of liability. A demand by a fire insurance company for an appraisement and arbitration pursuant to tbe policy is equivalent to an admission of liability thereon. (Post, p. 64.) Cases cited and approved: Hickerson v. Insurance Cbmpanies, 96 Tenn., 193. 3. INSURANCE. Fire insurance. Arbitration of loss. Refusal to arbitrate. Effect. If insured fails to comply with a demand by tbe company for arbitration of tbe loss pursuant to an arbitration clause, be cannot sue thereon, and such refusal, if unreasonably persisted in, forfeits tbe policy, and, if the company refuses such a demand, insured may sue on tbe policy at once. (Post, p. 64.) 4. INSURANCE. Fire insurance. Appraisement. Fraud. If an arbitration of tbe amount of loss fails because of fraud or intermeddling by insured, he cannot sue on tbe policy; and, if it fails by the fraud, etc., of tbe company, insured may abandon tbe arbitration and sue on tbe policy. (Post, pp. 64, 65.) 5. INSURANCE. Fire insurance. Arbitration of loss. Reap-praisement. If the parties have appointed appraisers to determine the loss pursuant to an arbitration clause in a fire policy, and the ap-praisement has failed without fault of either party, insured cannot be required to select another arbitrator. (Post, pp. 65-68.) ■Cases cited and approved: Jerrils v. German American Insurance Co., 82 Kan., 320; Spring Garden Insurance Co. v. Amusement Syndicate Co., 178 Fed., 519; Western Assurance Co. v. Decker, 98 Fed., 381; Connecticut Fire Insurance Co. v. Cohen, 97 Md., 294; Shawnee Fire Insurance C'o. v. Pontfteld, 110 Md., 353; Bretzfelder v. Merchant’s Insurance Co., 123 N. C., 164; Bernhard v. Insurance Co., 79 Conn., 388; Globe, etc., Insurance Co. v. Johnson (Ky.), 127 S. W., 765; Coffin v. German Fire Insurance Co., 142 Mo. App., 295; Western Assurance Co. v. Hall, 120 Ala., 547; Niagara Fire Insurance Co. v. Bishop, 154 Ill., 9. ■6. INSURANCE. Fire insurance. Arbitration. Upon the filing of a bill by a fire insurance company to set aside an award of arbitrators, the court acquired jurisdiction of the controversy, and could set aside the award and enforce the policies under a cross-bill praying for their enforcement, without the selection of new arbitrators. (Post, p. 68.) Cases cited and approved: Dixie Fire Insurance Co. et al. v. American Confectionery Co., 124 Tenn., 247; Continental Insurance Co. v. Garrett, 125 Fed., 590. 7. INSURANCE. Fire insurance. Award of arbitrators. Actions to set aside. Cross-bill. In a suit by fire companies to set aside an award of arbitrators, defendant could file a cross-bill to enforce the award, or, in the alternative, to enforce the policies, if the award was set aside, (Post, p. 68.) Acts cited and construed: Acts 1901, eh. 141, sec. 1. 8. INSURANCE. Fire insurance. Nonpayment of premiums.Penalties. Demand for payment. Under Acts 1901, ch. 141, sec. 1, providing that insurance companies who refuse to pay the loss within 60 days after demand hy the policy holder shall he liable to pay the holder, ’in addition to the loss, a sum not exceeding 25 per cent, on the liability for said loss, if such refusal to pay is not in good faith, a formal demand for payment must be made hy the insurer after maturity of the policy, and, if the company fails to pay within 60 days thereafter, insured may sue on the policy or award and recover the penalty, if the refusal was not'in good faith. (Post, %>. 69.) 9. Insurance. Fire insurance. Payment of loss. Demand. If no demand is made for arbitration of the loss under a fire-policy, it matures, for the purpose of authorizing a formal demand for payment in order to fix the penalty pursuant to Acts 1901, eh. 141, sec. 1, at the expiration of the number of days fixed in the policy for maturing; hut, if the policy provides for payment a certain number of days after the filing of an award, the date of maturity would be governed by the number of days so fixed. (Post, p. 70.) Cases cited and approved: Mutual Reserve Fire Insurance Co. v. Tuchfeld, 159 Fed., 833; Lester v. Insurance Co., 55 Ga., 475, 480; Iowa Insurance Co. v. Lewis, 187 U. S., 335. 10. INSURANCE. Fire insurance. Nonpayment of loss. Penalties. If an award of arbitrators as to the amount of loss under a fire policy was defective, and the company sued to set the award aside, no penalty could be imposed under Acts 1901, ch. 141, sec. 1, imposing a penalty on the company for a bad-faith refusal to pay the loss within 60 days after demand; the time-for making a formal demand for payment not having arrived. (Post, p. 71.) ON PETITION FOR A REHEARING. 11. INSURANCE. Penal statute. Strict construction. Acts 1901, ch. 141, sec. 1, imposing a penalty on insurance companies refusing in bad faitb to pay the loss within 60 days after demand is made, is penal, and must be strictly construed. (Post, p. 72.) 12. INSURANCE. Fire insurance. Nonpayment of loss. Penalty. Under Acts 1901, ch. 141, see. 1, providing that, upon the refusal of an-insurance company to pay the loss within 60 days after demand, it shall be liable to pay a certain sum as a penalty, if the refusal was not in good faith, the failure to pay the loss within 60 days after demand would place the burden on the company of showing that such failure or refusal was in good faith. (Post, p, 73.)
129 Tenn. 75Bond v. State (1913)
1. CRIMINAL LAW. Admission of evidence. Insanity. Accused was charged with having obtained money in November, 1908, by false pretenses, and pleaded insanity as a defense. In November, 1909, a lunacy inquisition was held, and it was adjudged that accused was of unsound mind, and that he had been so since the spring of 1908; and on May 12, 1910, he was put to trial on his plea of present insanity, and the jury returned a verdict that he was then insane and incapable of defending the charge against him. Held, that the lunacy proceedings and the verdict on the plea of present insanity were admissible in evidence. (Post, pp. 83-85.) 2. CRIMINAL LAW. Responsibility. Insanity. Under a plea of insanity the question for determination is, whether accused had capacity and sufficient reason to enable him to distinguish between right and wrong as to the particular act, and a knowledge and consciousness that the act was wrong and criminal. (Post, pp. 83-85.) Cases cited and approved: Hughes v. Jones, 116 N. Y., 67; Davidson’s Appeal, 170 Pa., 96; Hopson v. Boyd, 6 B. Mon. (Ky.), 296; Hutchinson v. Sandt, 4 jRawle (Pa.), 234; Christmas v. Mitchell, 38 N. C. 535. 3. CRIMINAL LAW.! Evidence of insanity. Evidence of insanity after the commission of the offense charged is competent to enable the jury to determine the state of accused’s mind at the time the offense was committed. (Post, p. 85.) 4. FALSE PRETENSES. Prosecution. Sufficiency of evidence. In a prosecution for obtaining money from a national bank by false pretenses, evidence held to sustain a finding tliat the hank was at least a de facto corporation.- (Post, pp. 86, 87.) 5. FALSE PRETENSES. Ownership of property. Proof of ownership. It is sufficient to sustain a conviction for obtaining money by false pretenses from a corporation that the proof showed a de facto corporation. (Post, pp. 86, 87.) Cases cited and distinguished: Trice v. State, 39 Tenn., 591; Jones v. State, 37 Tenn., 347; Owen v. State, 37 Tenn., 493. 6. FALSE PRETENSES. Possession of property. Sufficiency. The possession, by persons assuming without authority to be a bank, of money left with them by depositors, would give them such a title as would support a prosecution for obtaining money by false pretenses, in fraudulently obtaining the money from them. (Post, pp. 87, 88.) Cases cited and approved: State v. Misseo, 105 Tenn., 218.
129 Tenn. 89Dies v. Wilson County Bank (1913)
1. PRINCIPAL AND SURETY. Discharge of surety. Taking additional security. Note of principal debtor. The sureties on a note, which expressly stipulated that they should not he discharged hy an extension of time granted to the principal, are not released hy the acceptance hy the payee of an additional note from the principal debtor payable at a later date, not as a renewal of the former note, hut as an additional evidence of the debt. (Post, p.. 94.) 2. PRINCIPAL AND SURETY. Discharge of surety. Reservation of rights against surety. Statutory provision. The Negotiable Instruments Act (Acts 1899, ch. 94, sec. 120, subsection 6), providing that a surety is not discharged by the taking of a renewal note from the principal extending the time of payment, where the extension is given under an express reservation of the right of recourse against the surety, applies where the original note is retained in posession by the payee, and the right of action thereon against the surety is thereby reserved. (Post, p. 94.) Acts cited and construed: Acts 1899, eh. 94, sec. 120, subsec. 6. Case cited and approved: Meredith v. Dibrell, 127 Tenn., 387. 3. NOVATION. Burden of proof. The burden of proving novation of a note by a later note is upon him who asserts it. (Post, p. 95.) Cases cited and approved: Sharp v. Ply, 68 Tenn., 4; Lover v. Bessenger, 68 Tenn., 393. 4. BILLS AND NOTES. Payment. . New note. Presumption. Express agreement. Where a new note is given to represent the original consideration and the old note is retained, while it is presumed that the old note is extinguished by the later one, an express agree*-rnent by the parties as to the payment or nonpayment oí the old note will control. (Post, pp. 95-100.) Case cited and approved: Bowman v. Rector, 59 S. W. 389, 398. 5. BILLS AND NOTES. Collateral securities. Notes representing the same debt. Two notes representing the same debt may be outstanding at the same time, the one as collateral to the other, and either the original or the renewal note may be held as collateral to ■ the other. (Post, p. 96.) Cases cited and distinguished: Continental Life Ins. Co. v. Barker, 50 Conn., 567; National Park Bank v. Koehler, 137 App. Div., 785. Cases cited and approved: Ripley v. Greenley, 2 Vt., 129; Bank v. Parriott, 125 Cal., 472; Fisher v. Denver Nat. Bank, 22 Colo., 373; Weakly v. Bell, 9 Watts (Pa.), 273; Peninsular Savings Bank v. Hosie, 112 Mich., 351. 6. BILLS AND NOTES. Collateral security. Notes of same maker. While the maker of a note, which was signed by two others as sureties, cannot pledge the note as collateral for a note executed by himself alone and evidencing the same debt, since that note is a liability of his and not an asset which may be a subject of a pledge, that rule does not prevent the payee of the secured note from holding it as collateral for the second note. (Post, p. 99.) Cases cited and approved: International Trust Co. v. Union Cattle Co., 3 Wyo., 803; In re Waddell-Entz Co., 67 Conn., 324; Easton v. Bank, 127 U. S., 532; Dibert v. D’Arcy, 248 Mo., 617. 7. JUDGMENT. Separate notes for same debt. Collateral satisfaction. In such a case the creditor can make but a single proof against the debtor and have but one satisfaction. (Post, p. 101.) Cases cited and approved: International Trust Co. v. Union Cattle Co., supra; In re Waddell-Entz Co., supra. 8. BILLS AND NOTES. Collateral security. Notes of the same maker. Different debts. The fact that the subsequent note included other indebtedness, or a new one in addition to that represented by the old note, does not affect the rule. (.Post, p. 101.) Case cited and approved: Ripley v. Greenleaf, supra. Case cited and distinguished: Cotton v. Atlas Nat. Bank, 145 Mass., 49. 9. PRINCIPAL AND SURETY. Discharge. Note held as collateral. Part payment of principal note. Where the payee of a note, signed by a principal and two sureties, accepted another note from the principal representing the same and additional indebtedness, under the express agreement that the old note was to be retained as collateral for the new, the proceeds of property mortgaged as security for the new note, which were applied to the payment of the debt represented thereby, released pro tanto the sureties on the old note. (Post, p. 101.) Cases cited and approved: Bussey v. Grant, 29 Tenn., 238; Mason v. Smith, 79 Tenn., 67, 74.
129 Tenn. 103Keelin v. Graves (1913)
1. EXEMPTIONS. Persons entitled to benefit. The exemption laws, both as to personalty and realty, are exclusively for the benefit of citizens of the State having a domicile herein. {Post, pp. 109, 110.) Cases cited and approved: Hawkins v. Pearce, 30 Tenn., 44; Lisenbee v. Holt, 33 Tenn., 50; Vaugh v. Ballentine, 1 Tenn. Cas., 596; Hicks v. Pepper, 60 Tenn., 42, 46; Emmett v. Emmett, 82 Tenn., 369, 370, 371; Doran v. O’Neal (Ch. App.), 37 S. W. 563, 565; Carrigan v. Rowell, 96 Tenn., 185; Faris v. Sipes, 99 Tenn., 298; Coil v. Hudgins, 109 Tenn., 217; Hascall v. Hafüord, 107 Tenn., 355; Beeler v. Nance, 126 Tenn., 589; Grier v. Canada, 119 Tenn., 17; Prater v. Prater, 87 Tenn., 78; Graham v. Stull, 92 Tenn., 673; Whitly v. Steakly, 62 Tenn., 393. 2. ATTACHMENT. Grounds. Nonresidence. One may be a temporary nonresident of the state, so as to authorize an attachment, though his domicile is still in the State. {Post, pp. 110, 111.) Cases cited and approved: Smith v. Story, 20 Tenn., 420; Foster v. Hall & Eaton, 23 Tenn., 345; Stratton v. Brigham, supra; Klepper v. Powell, 53 Tenn., 503; People’s Bank v. Williams (Ch. App.), 36 S. W., 983, 985, 986. 3. EXEMPTIONS. Nonresidence. The exempt property of one whose domicile is in Tennessee, though he may be personally absent from the State for a considerable time on business, is free from attachment or execution for debt, even though he be absent long enough to authorize an attachment in lieu of personal service as to other kinds of property. {Post, pp. Ill, 112.) 4. DOMICILE. “Change of domicile,” Every one has a legal domicile, which is not changed until a new one is acquired, and to work a “change of domicile” he must have removed to another State to make his home there; a mere removal for business purposes, though long continued, not changing his domicile, if he intends to return to this State upon the completion of his business, though a mere floating purpose to return to the state at some indefinite time will not destroy the presumption that his change of residence changed his domicile (citing Words and Phrases, vol. 3, title “Domicile”; see, also, Words and Phrases, vol. 2, pp. 1053, 1054). (Post, pp. Ill, 112.) .. Cases cited and approved: Poster v. Hall & Baton, supra; Allen v. Thomason, 30 Tenn., 536; Layne Ex. v. Pardee and Wife, 32 Tenn., 232, 235; Pearce v. State, 33 Tenn., 66; White v. White, 40 Tenn., 402; Williams v. Saunders, 45 Tenn., 60, 79, 80; Kellar v. Baird, 52 Tenn., 39; Sparks v. Sparks, 114 Tenn., 666. 5. ATTACHMENT. Grounds. Nonresidence. In an action to replevy goods, attached by defendant on the ground that plaintiff was a nonresident, the court instructed that the plaintiff went to North Carolina to engage in business, with no definite idea as to when he would return, to make that state his residence, or if, after he got there, he determined' to make it his residence, and actually resided there when the attachment was levied, he Would he a nonresident, though he might not have carried his family with him, but if he went on a visit, with the intention of returning when his visit was was out, he would not be a nonresident, and that if plaintiff left Tennessee with the intention of obtaining employment, and did so without any definite idea of returning to that state, and found such employment, he was thereafter a nonresident. Seld that, while the instruction did not refer to domicile and involved only the idea of nonresidence, it was substantially correct on the question of change of domicile. (Post, pp. 113, 114.) 6. REPLEVIN. Judgment. Under Shannon’s Code, sec. 5144, requiring the judgment in re-plevin to provide' for the return of the goods to the defendant, or, on failure to do so, that defendant recover their value, with interest and damages for their detention, and Acts 3905, ch. 31, prescribing substantially the same form of judgment in actions before a justice, in an ordinary action of replevin originally brought before a justice, it was error to render a money judgment for defendant on the bond, in absence of evidence as to the value of the property. (Post, pp. 114, 115.) Acts cited and construed: Acts 1905, ch. 31. Code cited and construed: See. 5144 (S.).
129 Tenn. 116Palmer v. Southern Express Co. (1913)
1. COMMERCE. Interstate commerce. State regulations. Validity. Acts 1913, 2d Extra Sess., ch. 1, sec. 5, forbidding any interstate carrier of intoxicating liquor to deliver liquor to the consignee unless the latter delivers a statement giving his name and 'address, and stating the use for which the liquor was ordered, directly interferes with interstate commerce as imposing a condition precedent, on the exercise by the carrier of the right to make delivery of an interstate shipment, and on the right of the consignee to receive delivery, and cannot be sustained as an exercise of the police power, or as authorized by the Wilson Act, which subjects liquor to State regulation, but which does not apply before actual delivery to the consignee. (Post, pp-. 133-138.) Acts cited and construed: Acts 193, sec 5. Constitution cited and construed: Act 1, sec. 10. Cases cited and approved: State v. Kelly, 123 Tenn., 567-575; Louisville & Nashville Railroad Co. v. Brewing Co., 223 TJ. S., 82. Cases cited and distinguished: L. & N. R. R. Co. v. Brewing Co., supra; Leisy v. Hardin, 135 TJ. S., 100; Rhodes v. Iowa, 170 TJ. S., 412, 419; Welton v. Missouri, 91 TJ. S., 281; Minnesota Rate Cases, 230 TJ. S„ 352. 2. COMMERCE. Interstate commerce. State regulations. Validity. Acts 1913, 2d Extra Sess., ch. 1, sec. 9, subsec. 2, declaring that nothing in the act prohibiting the carrying into the State of intoxicating liquor shall make it unlawful for one to order, and have shipped and delivered to him from without the State, for his own use, intoxicating liquor in quantities not exceeding one gallon, operates as a regulation of interstate commerce so as to restrict deliveries to one gallon at a time where liquors are intended for the personal use of the consignee, and is invalid. (Post, pp. 138-143.) Cases cited and approved: Hennington v. Georgia, 163 TI. S., 299; Lakeshore, etc., R. R. v. Ohio, etc., 173 TJ. S., 285; Gulf Colorado & S. P. R. Co. v. Hefley, 158 TJ. S., 98; Rhodes v. Iowa, 170 U. S., 425; People v. Hawkins, 157 N. Y., 1; Arnold v. Yanders, 56 Ohio St., 417; Adams Express C’o. v. Kentucky, 206 TJ. S., 129. Cases cited and distinguished: Minnesota Rate Cases, supra; Oklahoma v. Kansas Nat. Gas Co., 221 TJ. S., 255; Adams Express Co. v. Kentucky, 214 U. S., 219. 3. COMMERCE. Interstate commerce. Congressional regulations. Effect. The Interstate Commerce Act (Act Peh. 4, 1887, ch. 104, 24 Stat. 379 [TJ. S. Comp. St. 1901, p. 3154]), which applies to all corporations engaged in the transportation of property, and which declares that the term “transportation” shall include cars, facilities of shipment, etc., and the Wilson Act (Act Aug. 8, J890, ch. 728, 26 Stat. 313 [U. S. Comp. St. 1901, p. 3177]), subjecting intoxicating liquors transported into the State to the State laws on arrival, and Crim. Code U. S. (Act March 4, 1909, ch. 321, 35 Stat. 1136 [TJ. S. Comp. St. Supp. 1911, pp. 1661, 1662]) secs. 238, 239, prohibiting a carrier from delivering liquor to any person except the consignee, and prohibiting carriers from collecting the price, or carrying C. O. D. shipments of liquor, etc., regulate interstate commerce in intoxicating liquors, and exclude all State action on the subject, and Acts 1913, 2d Extra Sess;, ch. 1, sec. 5, forbidding the delivery •of an interstate shipment of liquor to any person other than the consignee, and section 8, applying to interstate shipments, and section 9, suhsec. 5, prohibiting an interstate carrier from delivering intoxicating liquors, unless the consignee presents a statement setting forth enumerated facts, are void, because they conflict with the federal staututes on the subject. (Post, pp. 143-145.) 4. COMMERCE. Interstate commerce. Congressional regulations. Effect. 'The Webb-Kenyon Act (Act March 1, 1913, ch. 90, 37 Stat. 699), prohibiting the transportation from one State into another of liquor for sale in violation of any law of the State where received, does not apply to a liquor shipment for the personal use of the consignee and his family. (Post, pp. 146-148.) 5. CONSTITUTIONAL LAW. Validity of statutes. Right to raise questions. A party having no interest in provisions of a statute cannot require the court to determine the constitutionality of such provision. (Post, pp. 148, 149.) Cases cited and approved: Kelly v. State, 123 Tenn., 516; Richardson v. Young, 122 Tenn., 524. 6. COMMERCE. Interstate commerce. State regulations. Acts 1913, 2d Extra Sess., ch. 1, sec. 3, requiring carriers of interstate shipments of liquor to file with the county court clerk of the county in which the liquor is delivered a statement giving the name and address of the consignee, the place of delivery, the kind and amount of liquor delivered, though imposing a new duty on interstate carriers of liquor, does not impose a direct burden on interstate commerce, and is not in conflict with the interstate commerce clause of the federal constitution, or with the federal statute making it unlawful for any carrier to disclose any information which may he used to the prejudice of a shipper or consignee, hut not preventing the giving of such information to any officer of any State in the exercise of his powers. (Post, pp. 149-154.) Cases cited and approved: Hennington v. Georgia, supra; Lake-shore, etc., R. R. v. Ohio, etc., supra; Gulf Colorado & S. F. Co. v. Hefley, supra. 7. STATUTES. Title. Constitutional provisions. Construction. The purpose of Const, art. 2, see. 17, providing that no hill shall embrace more than one subject, which shall he expressed in the title is to prevent omnibus legislation; but particulars leading directly or indirectly to the furtherance of the purpose appearing in the title may be embodied in the body of the act. (Post, pp. 154-156.) Constitution cited and construed: Art. 2, sec. 17. 8. CONSTITUTIONAL LAW. Statutes. Validity. Where one construction of a statute will make it void, and another will render it valid, the latter will he adopted, though the former at first view is the more natural interpretation of the words used. (Post, p. 156.) Case cited and distinguished: Hardaway v. Lilly, supra. 9. STATUTES. Title. Constitutional provisions. Though the title of an act is double, in violation of Const, art. 2, sec. 17, the act will be upheld where only one of the subjects is embraced in its body. Case cited and approved: Knoxville v. Gass, 119 Tenn., 438. 10. STATUTES. Title. Constitutional provisions. Acts 1913, 2d Extra Sess., ch. 1, prohibiting the transportation into the State of intoxicating liquor except in the manner prescribed, is but a regulation, and not a prohibition, of transportation of intoxicating liquors, and is not broader than the title entitled “An act regulating the shipment and delivery of intoxicating liquor,” etc. (Post, p. 157.) 11. STATUTES. Title. Constitutional provisions. Acts 1913, 2d Extra Sess., ch. 1, prohibiting the transportation into the State of intoxicating liquor except in the manner provided, and requiring an interstate carrier to file with the county court clerk of the county in which the liquor is delivered a statement giving the name and address of the consignee, place of delivery, and the kind and amount delivered, and declaring that a certified copy of the statement shall be “competent evidence in any of the courts of this State upon the trial of any cause whatsoever in which the same may be material,” does not embrace more than one subject, since the provision as to the competency of a certified copy of a statement applies only to a cause arising under the act. (Post, pp. 157-162.) Cases cited and approved: Manufacturing Co. v. Falls, 90 Tenn., 469; State, ex rel., v. Schütz Brewing Co., 104 Tenn., 715; Railroad v. Byrne, 119 Tenn., 278; Darnell v. State, 123 Tenn., 663; Kirk v. State, 126 Tenn., 7. Case cited and distinguished: Samuelson v. State, 116 Tenn., 470.
129 Tenn. 163Dunlap Lumber Co. v. Nashville, C. & St. L. Ry. Co. (1913)
1. RAILROADS. Switching services. Right to discontinue. If a shipper denies his liability for demurrage, the railroad company cannot discontinue its switching services on account of the nonpayment of demurrage. (Post, pp. 173-175.) Case cited and distinguished: Yazoo & M. V. R. Co. v. Searles, 85 Miss., 520. 2. CARRIERS. Freight. Demurrage. If a railroad company knew that a shipper would not accept logs in cars placed on a certain track, before the cars were delivered there, the shipper could not be charged with demurrage for not receiving the cars at that point. (Post, p. 175.) Case cited and approved: Railroad v. Hunt, 83 Tenn., 261. 3. CARRIERS. Freight. Point of delivery. It is implied in a contract for the shipment of logs that they shall be delivered at a point enabling the shipper to receive without delay or inconvenience. (Post, pp. 175, 176.) Case cited and approved: Railroad v. Hunt, supra. 4. TROVER AND CONVERSION. Conversion by carrier. The sale of logs shipped by a railroad company for demurrage when the freight charges due had been paid, so that no de-murrage was chargeable, was a conversion of the logs by the company. (Post, p. 176.) Case cited and approved: M. & P. R. Co. v. Jacobson, 179 U. S., 287. 5. CARRIERS. Freight. Facilities for shipment. Discrimination. Since railroad companies are organized primarily for the public interest and convenience, a railroad company cannot arbitrarily prevent the use by a shipper of the instrumentalities of other roads beyond its own lines which it has acquired the right to use. (Post, p. 176.) Cases cited and approved: Post v. Railroad, 103 Tenn., 202; M. P. R. Co. v. Lara.bee Flour Mills Co., 211 U. S., 614. 6. CARRIERS. Freight. Discrimination against shippers. It is the common law duty of a railroad company to serve the public without discrimination in service or charges. (Post, pp. 177, 178.) 7. COMMERCE. Interstate commerce — State regulation. While the State courts cannot directly interfere with interstate transportation, by regulating its conveniences or charges, they may control intrastate transportation, and the fact that a railroad company carries interstate freight, would not deprive the State courts of jurisdiction to compel it to switch cars for a shipper on an industrial siding. (Post, pp. 178, 179.) Case cited and approved: M. P. R. Co. v. Larabee Flour Mills Co., supra. 8. CARRIERS. Freight. Common-Law duties. Discrimination. Acts 1897, ch. 10, secs. 15, 17, prohibiting carriers from discriminating as to charges or services or from giving any unreasonable preferences, are merely declaratory of the common law. (Post, pp. 179, 180.) 9. RAILROADS. Freight. Performance of duties. Remedy. Injunction is the proper remedy to compel a railroad company to deliver to a shipper on a spur track the freight shipped to it, where it appears that the discontinuance of switching services to the shipper would be destructive of its business; the legal remedy being inadequate. (Post, pp.'-180, 181.) 10.RAILROADS. Freight. Remedy, of shipper. Injunction. In a suit to compel a railroad company to switch cars shipped to complainant on its industrial siding, the injunction issued was properly framed so as to require the company to receive and deliver to complainant on its spur track all freight, etc., according to complainant’s reasonable needs and consistent with the company’s duties to other shippers it was required to serve. (Post, p.-.)
129 Tenn. 182Webb v. Carter (1913)
1. STATUTES. Enactment. Legislative quorum. In determining whether a quorum was present when a bill was considered by the house of representatives, the court may look to the journal of the house. (Post, p. 186.) Cases cited and approved: Gaines v. Horrigan, 72 Tenn., 610; Telegraph Co. v. Nashville, 118 Tenn., 8; State, ex rel., v. Base Ball Club, 127 Tenn., 292. 2. CONSTITUTIONAL LAW. Judicial power. Validity of enactment. The constitutionality of the passage of an enrolled bill or act of the legislature may be inquired into by the courts, though the enrolled bill is an act of a co-ordinate branch of the State-government. (Post, pp. 186, 187.) Constitution cited and construed: Art. 8, sec. 18. Cases cited and approved: State v. McConnell, 71 Tenn., 334; Gaines v. Horrigan, supra; Nelson v. Haywood County, 91 Tenn., 608; Atchison, T. & S. F. R. Co. v. State, 28 Okl., 94. Cases cited and distinguished: Williams v. State, 74 Tenn., 653; State, ex rel., v. Algood, 87 Tenn., 163. 3. STATES. Legislature. Journals. Enactment. Legislative quorum. House Bill No. 759, subsequently purported to have been enacted as Pub. Laws 1913, ch. 37, was reconsidered by the house of representatives on April 3, 1913, after being disapproved by the governor. The journal of the house on that day showed that 52 representatives were present and voted, “Aye,” in favor of passing the bill notwithstanding the governor’s objections,. and that 4 representatives present voted, “No,” and 2 representatives answered, “Present, but not voting”; and further showed that when the names of 35 other representatives were called the speaker answered, “Not voting.” A representative who voted, “No,” offered an explanation of his vote which is not set out in the journal, which shows, however, that when the explanation was being read another member made the point of order that the question of “no quorum” could only be determined by a roll call, whereupon the speaker ruled that the explanation was out of order. Held, that the journal, when read in the light of all permissible presumptions in its favor, showed that there was no quorum of 66 members present when the bill was attempted to be passed; presumptively' showing that the 35 members answered for by the speaker were not present. (Post, pp. 189-193.) Constitution cited and construed: Art. 2, secs. 11, 12. 4. STATUTES. Enactment. Vote of legislature. In view of Const, art. 2, see. 21, requiring each legislative house to record in a journal the “ayes” and “noes” upon the final passage of every general bill, the act of the speaker of the house in answering, “Not voting,” when the names of certain representatives were called, would have no greater effect than the same announcement by any other member of the house; that not being a part of his duties as speaker. (Post, pp. 193-201.) Constitution cited and construéd: Art. 2, sec. 21; art. 3, sec. 18. 5. STATUTES. Enactment. Journal of house of representatives. Entry of vote. Const, art. 3, sec. 18, requiring the votes of both houses upon reconsideration of a bill after its disapproval by the governor to be determined by “ayes” and “noes” and the names of all members voting for or against the bill entered upon the journals of their respective houses, is mandatory, so that the “aye” and “no” vote must be entered upon the legislative journals. (Post, pp. 201, 202.) Constitution cited and construed: Art. 3, sec. 18. Case cited and approved: Williams v. State, supra. 6. STATUTES. Enactment. Disapproval by governor. ReEnactment. Order of procedure. Const, art. 3, sec. IS, provides if the governor refuse to sign a bill he “shall” return it with his objections to the house in which it originated, and said house “shall” cause said objections to be entered upon its journal and proceed to reconsider the bill, and, if “after such reconsideration a majority of all the members elected to that house shall agree to pass the bill notwithstanding the objections, it shall be sent with said objections to the other house by which it shall be likewise considered.” Held, that the provision as to the order in which a bill must be reconsidered by the legislative houses is mandatory, so that a bill originating in the house of representatives was not validly passed over the governor’s veto, where it was reconsidered and passed by the house, acting without a quorum, and was then sent to the senate, which also passed it over the veto, and subsequently, in an attempt to cure the defect in the action of the house, the house passed it again with a quorum present, but did not thereafter send it to the senate for its action. (Post, pp. 203-226.) Constitution cited and construed: Art. 3, sec. 18. Case cited and distinguished: State v. McCann, 72 Tenn., 11. Cases cited and disapproved: Furnace Co. v. Railroad Co., 113 Tenn., 731; Muse v. Lexington, 110 Tenn., 655. LANSDEN AND GREEN, JJ., dissenting.
129 Tenn. 273Parrish v. State (1913)
1. CRIMINAL LAW. Evidence. Other offenses. In a prosecution for placing in the yard of a negro, a note telling" him that he was given twenty days to leave the State, or he would otherwise he hilled, evidence of other outrages against the negroes in that vicinity, and of the fact that the trial of accused upon a charge of shooting into the prosecutor’s house was interrupted by force, was inadmissible as showing the intent of the threats; the note being unequivocal, and there being no showing of a general scheme on the part of accused to intimidate the negroes of that community. (Post, pp. 274-278.) 2. CRIMINAL LAW. Appeal. Review. Harmless error. In a prosecution for placing in the yard of a negro a communication warning him to leave the country, or that he would be killed, the admission of evidence of other outrages committed upon negroes in that vicinity, and of the trial of accused for shooting into the prosecutor’s house, was prejudicial, where the evidence tending to show accused’s guilt was nicely balanced. (Post, pp. 274-278.) Cases cited and approved: Coleman v. People, 55 N. Y., 81; Peek v. State, 21 Tenn., 78; Queener v. Morrow, 41 Tenn., 123; People v. Molineux, 168 N. Y., 264; Price v. Clapp, 119 Tenn., 430.
129 Tenn. 279State ex rel. College of Bishops of M. E. Church v. Board of Trust of Vanderbilt University (1913)
129 Tenn. 366Mitchell v. Denny (1913)
1. HOMESTEAD. Conveyance between spouses. A conveyance by a husband to his wife of an undivided one-third interest of land owned by him when he was married, and in which he had a homestead right after marriage, did not de-story the wife’s right of homestead in the entire tract. (Post, p. 368.) Code cited and construed: See. 3798 (S.). Constitution cited and construed: 1870, art. 11, sec 11. Cases cited and approved: Avans v. Everett, 71 Tenn., 77; J. I. Case Co. v. Joyce, 89 Tenn., 337; Adcock v. Adcock, 104 Tenn., 154. Case cited and distinguished: Hicks v. Pepper, 60 Tenn., 44. 2. HOMESTEAD. Land subject. A homestead does not attach to undivided interests in land. (Post, p. 370.) 3. HOMESTEAD. Floating right of homestead. If the value of land owned by the husband at his marriage exceeded $1,000, the wife’s homestead right therein was a mer» floating right; but if its value did not exceed that sum, she had a vested right of homestead therein. (Post, p. 371.) 4. HOMESTEAD. Conveyance. Joint deed. Under Const., art. 11 sec. 11, providing that the homestead property shall not be alienated without the joint consent of husband and wife, and Shannon’s Code, sec. 3798, containing substantially the same provision, homestead property can only be conveyed by the joint deed of husband and wife, whether the homestead be vested or a mere floating right. (Post, p. 371.) Code cited and construed: Sec. 3798 (3.). Constitution cited and construed: 1870, art. 11, sec. 11. Cases cited and approved: Briscoe v. Vaughn 103 Tenn., 314; Hall v. Fulgham, 86 Tenn., 451; Cox v. Keathley, 99 Tenn., 523. Case cited and distinguished: Beeler v. Nance, 126 Tenn., 592.
129 Tenn. 374Cumberland Telephone & Telegraph Co. v. Peacher Mill Co. (1913)
1. EVIDENCE. Subjects of expert testimony. Matter directly in issue. In an action by a mill company for damages from the burning of its storehouse and the stock therein, on the theory that lightning struck the telephone line of the defendant about three-quarters of a mile from the storehouse, and that the current of electricity followed the wire into the building in which a telephone was installed, causing the ignition, and alleging defendant’s negligence in failing to have ground connections and appliances near the point of the wire’s entrance into the building to arrest such a current, in which the defendant claimed that the building was directly struck by lightning without the intervention of its wire as a conductor, the answer of plaintiff’s expert that, assuming that the hypothesized fact were true, the fire was probably due to the lightning discharged from the wire, was inadmissible as an opinion on the ultimate fact to be determined, invading the province of the jury. {Post, p. 376.) 2. EVIDENCE. Subject of expert testimony. Negligence. Though there are exceptions, an expert witness may not give an opinion as to what is imprudent or negligent, by way of exception to the general rule that experts may not testify In the form of an opinion as to an ultimate fact to be determined by the jury. (Post, p. 376.) Cases cited and approved: Bruce v. Beall, 99 Tenn., 303; Camp' v. Ristine, 101 Tenn., 534; Pointer v. Klamath, etc., Co., 28 ■Ann. Cas., 1077; Castner v. Davis, 154 Fed., 938; Crane Co. v. Construction Co., 73 Fed., 984; Goddard v. Enzler, 222 111., 471; Keefe v. Armour, 258 Ill., 28; State v. Hyde, 234 Mo. 200; Sever v. Minneapolis, etc., R. Co. (Iowa), 137 N. W„ 937; Lacas v. Detroit, etc., R. Co., 92 Mich., 112; Maitland v. Gilbert Paper Co., 97 Wis., 476; Hamann v. Milwaukee Bridge Co., 127 Wis., 550. 3. EVIDENCE. Subjects of expert testimony. Cause and effect. Where the cause of an existing condition or injury is in dispute, and where the jury must determine which of the causes urged by the respective parties is the right one, an expert opinion is generally admissible to the effect that a certain cause could or might produce the condition. (Post, p. 381.)
129 Tenn. 383State ex rel. Hull v. Rimmer (1913)
1. RAPE. Assault with intent to rape. Female under age of consent. Statutory provisions. In view of tile history of the legislation which makes a distinction between carnal knowledge of a female forcibly and against her will, which is rape, and carnal knowledge of a female under the age of consent, where the character of the act is not affected by the consent of the female, Shannon’s Code, see. 6459, making any person who assaults a female with intent, forcibly and against her will, to have carnal knowledge of her, punishable by imprisonment for not less than ten years nor more than twenty-one years, applies only to assaults upon females over the age of consent, while Shannon’s Code, sec. 6471, imposing a different punishment upon one who assaults another with intent to commit any felony, etc., where the punishment is not otherwise prescribed, applies to assaults with intent to have carnal knowledge to a female under the age of consent. {Post, p. 385.) Acts cited and construed: Acts 1829, ch. 23; Acts 1871, ch. 56; Acts 1879, ch. 63. Code cited and construed: Secs. 6451, 6459, 6471 (S.); secs. 4614, 4615, 4630 (M. & V. and 1858). Cases cited and approved: Murphy v. State, 47 Tenn., 516; Mayfield v. State, 101 Tenn., 673; Pitts v. State, 102 Tenn., 141; Wright v. State, 23 Tenn., 196; Wyatt v. State, 32 Tenn., 394; Brown v. State, 65 Tenn., 424. 2. RAPE. Statutory rape. Repeal. Code 1858, sec., 4614, later codified as Shannon’s Code, sec. 6455, made punishable any person who should carnally know and abuse a female under the age of ten years. It was amended by Act 1871, cli. 56, as to the punishment, and again amended by Act 1879, ch. 63, so as to read that any person who should assault a female under the age of ten years with intent to carnally know her should be punishable as in the case of rape. Act 1893, ch. 129, amended section 4614 as amended in 1871 so as to change the age to twelve years, and re-enacted it as amended, but made no reference to the act of 1879, and did not incorporate its provisions. EeU, that the amendment by the act of 1879, which was an addition to, and not a substitution for, section 4614, was repealed by the amending act of 1893. (Post, p. 391.) Acts cited and construed: Acts 1871, ch. 56; Acts 1893, ch. 129. Code cited and construed: Sec. 6458 (S.); sec. 4614 (M. & V. and 1858).
129 Tenn. 394Putnam County v. Smith County (1913)
1. ESTOPPEL. Persons estopped. Municipal corporations. The doctrine of estoppel due to laches and acquiescence is applicable, in certain cases, to a county, as a quasi municipal corporation. (Post, p. 396.) Acts cited and construed: Acts 1870, ch. 84; Acts 1873, ch. 66; Acts 1877, ch. 116; Acts 1881, ch. 142; Acts 1883, ch. 99. Cases- cited and approved: County of Boone v. Railroad, 139 U. S., 684; Louisville v. Cumberland Tel. Co., 224 U. S., 649; McMillan v. Hannah, 106 Tenn., 689. 2. COUNTIES. Boundaries. Estoppel by conduct. A county which acquiesces for twenty years, the common law period of prescription, in the detachment of a part of its territory, so as to reduce its territory to less than 500 square miles in area, contrary to Const. 1870, art. 10, sec. 4, will be estopped by laches from maintaining a suit to recover the detached territory. (Post, p. 397.) 3. COUNTIES. Division of territory. Taxes. A county suing to recover territory which had been detached from it and added to another county by unconstitutional statutes was entitled to recover taxes collected by such other county, after the original bill was filed in the suit, on lands affected by the unconstitutional statutes. (Post, p. 397.) Cases cited and approved: McMillan v. Hannah, 106 Tenn., 689; Cheatham County v. Dickson County (Ch. App.), 39 S. W., 734.
129 Tenn. 398Grant v. Louisville & Nashville Railway Co. (1913)
FROM MAURY. Appeal from the Circuit Court of Maury County, to the Court of Civil Appeals, and by certiorari from the Court of Civil Appeals to the Supreme Court.— W. B'. TukneR, Judge.
129 Tenn. 412Ward Seminary for Young Ladies v. Mayor of Nashville (1913)
PROM DAVIDSON Appeal from Chancery Court, Davidson'County.— John Allison, Chancellor.
129 Tenn. 444Walker v. Lemma (1913)
SUPERSEDEAS. Jurisdiction. Supreme Court. Under Acts 1907, ch. 82, sec. 8, providing for the review by the supreme court upon certiorari of the cases appealed to the court of civil appeals, the supreme court can take jurisdiction of such cases only through that writ, and then only after final decree or judgment in the court of civil appeals, and it has no jurisdiction to issue a writ of supersedeas suspending or discharging a supersedeas granted by the court of civil appeals. Acts cited and construed: Acts, 1907, ch 82.
129 Tenn. 446Griffin v. Parker (1914)
1. MASTER AND SERVANT. Liability for injuries. Unsafe scaffolds. . While the rule that an employer must use reasonable diligence to furnish a safe place and safe instrumentalities for the work to he done is subject to the exception that where he supplies ample material of good quality and competent labor for the construction of a scaffold, which he is not required to furnish in a completed state, and which the employees within the scope of their employment are themselves required to construct, lie is not liable for the negligence of a fellow servant in the construction of the scaffold, the employer must either furnish the scaffold complete for use, or leave the employees unembarrassed in selecting the material from that furnished, and where the selection is intrusted to a foreman, he is deemed a vice principal. (Post, p. 451.) Cases cited and approved: Killea v. Faxon, 125 Mass., 485; Kennedy v. Spring, 160 Mass., 203; Rose v. Walker, 139 Pa., 42; Kimmer v. Weber, 151 N. Y., 417; Noyes v. Wood, 102 Cal., 389; Lindvall v. Woods, 41 Minn., 212; Haakensen v. Burgess, etc., Co., 76 N. H., 443; Haskell v. Cape, etc., Co., 4 L. R. A. (N. S.), note, pp. 226-229; Lambert v. Missisquoi Pulp Co., 72 Vt., 278; Sowles v. Norcross Bros. Co., 195 Fed., 889; Olsen v. Nixon, 61 N. J. Law, 671; Blomquist v. Chicago, etc., R. Co., 60 Minn., 426; Lee v. Leighton Co., 113 Minn., 373; Arkerson v. Dennison, 117 Mass., 407; Donahue v. Buck, 197 Mass., 550; Dunleavy v. Sullivan, 200 Mass., 29; Richards v. Hayes, 17 App. Div., 422; Austin Mfg. Co. v. Johnson, 89 Fed., 677. 2. MASTER AND SERVANT. Liability for injuries. Burden of proof. Where a scaffold, which an employer was bound to keep safe by the exercise of reasonable care, was not defective when constructed, but collapsed because of the negligence of a workman in dislodging a brace, thus permitting a board set on edge to turn flat and break, the burden was on an employee, suing for injuries, to overcome the presumption of due care on the part of the employer by proof that he had notice of the defective condition, or in the exercise of ordinary care should have known thereof. (Post, p. 454.) Cases cited and approved: Railroad v. Lindamood, 111 Tenn., 463; Railroad v. Hayes, 117 Tenn., 680. 3. MASTER AND SERVANT. Liability for injuries. Burden of proof. No presumption of negligence could arise from an employer’s failure to discover a defect in a scaffold within an hour and a half after it became defective by the displacement of a brace. (Post, p. 454.) Case cited and construed: Box Co. v. Gregory, 119 Tenn., 537
129 Tenn. 455Woolen v. State ex rel. Portis (1914)
1. COSTS. In criminal prosecutions. Liability of state. Under Shannon’s Code, secs. 7606, 7619-7622, declaring that costs shall include the safe-keeping of accused before and after conviction, and providing that costs in felony cases shall be paid by the State, the State is liable for costs for confining in the county jail one convicted of a felony; the commutation in the sentence not changing the grade of the offense. (Post, p. 456.) Acts cited and construed: Acts Extra Session 1891, ch. 22. Code cited and construed: Sec. 7606, 7619 (S.); secs. 5577, 5585 (M. & Y. and 1858). 2. COSTS. In criminal prosecutions. Liability of State. Acts 1891, ch. 123, sec. 11, providing that the State shall pay for the board of State prisoners, covers safe-keeping in a workhouse before and after conviction, on commutation from penitentiary confinement. (Post, p. 458.) Acts cited and construed: Acts 1891, ch. 123.
129 Tenn. 459Union Railway Co. v. Carter (1914)
FROM SHELBY. Appeal from Circnit Court, Shelby County. — J. P. Young, Judge.
129 Tenn. 464Goodman v. Wilson (1914)
1. MASTER AND SERVANT. Negligence of chauffeur. Joint liability. Where a brother and sister jointly own an automobile, each paying one-half of all expenses, including the wages of the chauffeur jointly employed, and with an .equal right to the use of the machine., with the exception that the brother had a preference in being taken to and from work, the sister is liable for injuries sustained in a collision with a buggy while the chauffeur, alone in the machine, was racing with another machine on his way to take the brother home from work. (Post, p. 467.) 2. MASTER AND SERVANT. Respondeat superior. Nature of doctrine. The doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person shown to be charged with the injury resulting from the wrong, and in respect of the very transaction out of which the injury arose. (Post, ’p. 467.) 3. MASTER AND SERVANT. Negligence of chauffeur. Liability of -master. The mere fact that a driver of an automobile was defendant’s servant will not make .defendant liable, unless it is further shown that at the time of the accident tie driver was in the master’s business, and acting within the scope of his employment. (Post, p. 467.) Cases cited and approved: Brow v. Boston, etc., R. Co.. 157 Mass. 399; Illinois Central R. Co. v. King. 69 Miss., 852. 4. NEGLIGENCE. Dangerous instrumentalities. Automobile. An automobile is not sucb a dangerous machine as would require it to be put in the category with the locomotive, dangerous animals, explosives, and the like, so as to render the owner liable from its use. (Post, p. 470.) Cases cited and approved: Lotz v. Hanlon, 217 Pa., 339; Steffen, v. McNaughton, 142 Wis., 49; Eichman v. Buehheit, 128 Wis., 385.
129 Tenn. 472Strong v. State ex rel. Barrett (1914)
CONSTITUTIONAL LAW. Costs. Jury. Escape of prisoners. Working out costs of recapture. Due process of law. Workhouse Act (Shannon’s Code sec. 7423), providing that a prisoner, who escapes, when recaptured shall be made to work out the costs of the same, in addition to the other costs in the case, and making no provision for hearing and without fixing what is a reasonable amount for recapture, is unconstitutional as denying the right to trial by jury and due process of law guaranteed by Const, art. 1, sec. 8. Acts cited and construed. Acts 1875, eh. 83; Acts 1891, ch. 123. Code cited and construed. Sec. 7423 (S.). Cases cited and approved: In re Mallon, 16 Idaho, 737; State v. State, 46 Tenn., 250; People v. Creamer, 30 App. Div., 624; State v. Sanders, 153 N. C., 627; State v. Everitt, 164 N. C., 399; Ughbanks v. Armstrong, 208 U. S., 481.
129 Tenn. 477Atlas Hardwood Lumber Co. v. Georgia Life Insurance (1914)
FROM SHELBY. Appeal from Chancery Court, Shelby County. — F. H. Heiskell, Chancellor.
129 Tenn. 485Arbuckle v. Arbuckle (1914)
1. GUARDIAN AND WARD. Ward’s real estate. Sale. Purchase by witness. Statutes. Sbannon’s Code, sec. 5078, provides 'that on an application for sale of a ward’s real estate the pleading shall set forth fully the age and condition of the ward, what other property, if any, be owns, and the reason why a sale was sought. Section 5088 declares that no guardian,' next friend, or witness in such cause shall purchase at such sale, or afterwards until five years from removal of existing disabilities, and, if he does so, the sale shall be void. H-eld, that only such witnesses are deprived of the right to purchase as resort to their testimony as an artifice to bring about a sale of the infant’s property in order that they may purchase, and hence a purchaser within the prohibition must testify to facts which would reflect in some material degree on the jurisdictional facts included in section 5078, and this testimony must have influenced the court’s judgment in the decision of those questions. (Post, p. 487.) Code cited and construed: Secs. 5072, 5078, 5088 (S.). Cases cited and distinguished: Starkey v. Hammer, 60 Tenn., 445; Hunt v. Glen, 79 Tenn., 16. 2. GUARDIAN AND WARD. Ward’s realty. Purchase by witness. A witness having purchased certain undivided interests in land agreed with the guardian of a minor owning a one-sixth interest to purchase the same for $500. In proceedings to confirm the sale, the witness was subpoenaed by the guardiari and testified that he was familiar with the property, that he owned five-sixths thereof, that he and the minor’s guardian,- who was an intelligent woman, had contracted for a sale of the minor’s interest to a witness for $500, and, though he had paid $1,000 for an undivided one-third interest in the property and $650 for an undivided one-sixth interest, he thought the price he proposed to pay was fair. Held, that such testimony did not bar the witness from purchasing or authorize an avoidance of the ¡sale under Shannon’s Code, sec. 5088', declaring that no witness .shall purchase at a guardian’s sale, or at any time within five .years after the removal of the existing disabilities, etc. (Post, ¶. 490.)
129 Tenn. 493McDonald Automobile Co. v. Bicknell (1914)
1. Sales. Conditional Sales. Collateral Security. Where a seller under a conditional sale contract subsequently takes security,^personal or collateral, lie does not thereby divest himself of his retained title or authority to retake the goods for the buyer’s failure to pay the price. (Post, p. 495.) Cases cited and approved: Edgewood Distilling Co., v. Shannon, 60 Ark., 133; Thornton v. Findlay, 97 Ark., 432; Bierce v. Hutchins, 205 U. S., 340; Monitor Drill Co. v. Mercer, 163 Fed., 943; Kimball v. Costa, 76 Vt, 289; Pettyplace v. Groton, etc., Co. 103 Mich., 155; Standard Steam Laundry v. Dole, 22 Utah, 311; Bank v. Yandyck, 51 Tenn., 617; Manufacturing Co. v. Buchanan, 118 Tenn., 238; Byrns v. Woodward, 78 Tenn., 444; Murrell v. Watson, 1 Tenn., ch., 342; Fogg v. Rogers, 42 Tenn., 290; Anthony v. Smith, 28 Tenn., 508. 2. Sales. Conditional Sales. Recovery of Property. Right to Sue. Where reservation of title to property conditionally sold was contained in the contract, and not in the notes for the unpaid price, the seller, though having'indorser the notes, was still entitled to enforce the condition and recover the property in replevin; . he being interested as indorser in securing satisfaction of the notes to the holder out of the proceeds of the sale. (Post, p. 495.) Case cited and approved: McPherson v. Acme Lumber Co., 70 Miss., 649.
129 Tenn. 498Suggs v. State (1914)
BAIL. Liability of Surety. Sureties upon a bail bond conditioned that accused should not depart without leave of court are not liable where, after con- • viction and sentence which provided for incarceration in the county jail pending the coming of proper authorities to carry accused to the penitentiary, and sheriff improperly allowed accused to go without custody for a few days, and he escaped, for, the sureties having delivered accused into the custody of the court, there was no further liability on’ the recognizance. Cases cited and approved: State v. Whitson, 8 Blackf. (Tnd.), 178; State v. Stewart, 74 Iowa, 336; Dennard v. State, 2 Ga., 137; Neininger v. State, 50 Ohio St., 394; Hawk v. State, 84 Ala., 466; Roberts v. Gordon, 86 Ga., 386; State v. Wilson, 14 La. Ann., 450; State v. Cobb, 44 Mo. App., 375; Fortenberry v. State, 47 Tex. Cr. R., 84; Phillips v. State, 100 Ark., 515; Miller v. State, 158 Ala., 73; Com. v. Skaggs, 152 Ky., 268; State v. Murman, 124 Mo., 502; State v. Charles, 207 Mo., 40. Cases cited and distinguished: Ex parte Williams, 114 Ala., 29; Miller v. State, 158 Ala., 73.
129 Tenn. 504Missio v. Williams (1914)
1. ANIMALS: Injuries to persons. Liability. Tlie owner of premises who permits another to harbor thereon dogs which the owner knows are vicious, is liable for injuries inflicted by the dogs upon another. (Post, p. 507.) 2. ANIMALS. Injuries to persons. Liability. Knowledge of vicious character. The owner or keeper of a domestic animal- is not liable for injuries inflicted by the animal, unless he has knowledge of its vicious habits; hut, where he has such knowledge his liability is not limited to negligence in the custody of the animal, but he is hound to keep the animal from doing mischief. (Post, p. 507.) 3. ANIMALS. Persona! injuries. Liability. Knowledge of Vicious Character. Knowledge by the owner or keeper of a dog that it is vicious is sufficient to render him liable for injuries inflicted by the dog, without a showing that it had ever before bitten any person. (Post, p. 507.) Cases cited and approved: Sherfey v. Bartley, '36 Tenn., 58; Smith v. Causey, 22 Ala., 568; Le Forest v. Tolman, 117 Mass., 109; Popplewell v. Pierce, 10 Cush. (Mass.) 509; Loomis v. Terry, 17 Wend, (N. Y.) 496; Empire Spring Co. v. Edgar, 99 U. S., 645; Frammell v. Little, 16 Ind., 251; Marsh v. Jones, 21 Vt., 378; Wilkinson v. Parrott, 32 Cal., 102; Rider v. White, 65 N. Y., 54; Gordeau v. Blood, 52 Vt., 251. 4. ANIMALS. Injuries to persons. Liability. Wild Animals. Owners or keepers of animals which are naturally vicious are liable for the acts of such animals, even though no notice of their vicious propensities .is shown. (Post, p. 507.) Cases cited and approved: Empire Spring Co. v. Edgar, 99 U S., 645; Vrooman v. Lawyer, 13 Johns, (N. Y.) 339; Sherfey v. Bartley, 36 Tenn., 58. 5. HUSBAND AND WIFE. Liability of wife. Torts. A married woman who permitted, during her husband’s absence, another to keep vicious dogs on her premises is liable for the injuries inflicted by them, since she is liable for her own personal torts not committed in the presence or under the supposed influence of her husband. (Post, p. 509.) Cases cited and approved: Dailey v. Houston, 58 Mo., 361; Marshall v. Oakes, 51 Me., 308; Collier v. Struly, 99 Tenn., 241. 6. HUSBAND AND WIFE. Liability of Wife. Negligence of Husband. A married woman is not liable for torts committed through the negligence of her husband under the rule respondeat superior, since she is not liable ex contractu. (Post, p. 510.)' 7. HUSBAND AND WIFE. Liability of Husband. Torts of Wife. Where a married woman, during her husband’s absence, permitted vicious dogs to be kept upon the premises, the husband is liable jointly with her for the injuries inflicted by the dogs upon another. (Post, p. 510.) Cases cited and approved: Collier v. Struly, 99 Tenn., 241: Price v. Clapp, 119 Tenn.,425.
129 Tenn. 511Hardee v. Wilson (1914)
RECEIVERS. Foreign receivers. Permission to sue. While a receiver, at least an ordinary chancery receiver, has no legal right to sue in a state other than that of his appointment, the privilege of doing so will he accorded, as a matter of comity; the suit being neither inimical to the interest of local creditors, or of anyone who has acquired rights under a local statute, nor in contravention of the policy of the forum. Code cited and construed: Sec. 6106 (S.). Cases cited and approved: Relfe v. Rundle, 103 TJ. S., 222; Converse v. Hamilton, 224 U. S., 243; Howarth v. Lombard, 175 Mass., 570; Howarth v. Angle, 162 N. Y., 179-182; Bank v. Motherwell, etc., Iron Co., 95 Tenn., 172-181; Dillingham v. Insurance Co., 120 Tenn., 302; Booth v. Clark, 17 How., 322; Cagill v. Wooldridge, 67 Tenn., 580. Cases cited and distinguished: Runk v. St. John, 29 Barb., (N. Y.), 585; Choctaw Coal, etc., Co. v. Williams, Echols, etc., Co., 75 Ark., 365; Newsum v. Hoffman, 124 Tenn., 369.
129 Tenn. 521May v. Illinois Central Railroad (1914)
PLEADING. Allegation of time. Pleading and proof. Not only may plaintiff allege that the personal injury for which she sues was inflicted “on or about” a certain day, but, being unable to do so, she may not be required to allege the date with greater particularity, and may recover on her testimony that the accident occurred in the month alleged, and to the best of her recollection on the day alleged. (Post, pp. 522-534.) Code cited and construed: Secs. 4605, 4606 (S.). Cases cited and approved: Martin v. McNight, 1 Tenn., 380; Thompson v. French, 18 Tenn., 453 Rollins v. Atlantic City R. Co., 73 N. J. Law, 64; Gulf, T. & W. R. v. Lowrie, 144 S. W., 367; Florida East Coast R. Co. v. Welsh, 53 Fla., 145; Southern Railroad Co. v. Puckett, 121 Ga., 322; Richmond & Danville R. Co. v. Payne, 86 Va., 481; State v. Lewis, 69 W. Va., 472; Warfield v. State, 116 Md., 599; Washington & Va. R. Co. v. Boukright, 113 Va., 696; Watkins v. Cope, 84 N. J. Law, 143; Crowley v. Railroad, 108 Tenn., 74. Cases cited and distinguished: Bogard v. Ill. Cent. R. R. Co., 116 Ky., 429; Tilton v. Reecher, 59 N. Y., 176; Mynott v. Mynott, 53 Tenn., 311.
129 Tenn. 535State v. McTeer (1913)
FROM KNOX Appeal from Criminal Court, Knox County.— T. A. R. Nelson, Judge.
129 Tenn. 541Matthews v. Crofford (1914)
1. APPEAL AND ERROR. Review. Question reviewable. Only those matters assigned in the motion for new trial can be reviewed on appeal. (Post, pp. 648-551.) 2. LANDLORD AND TENANT. Surrender. Effect. Whil a surrender of demised premises, duly accepted, relieves the lessee, from any liability for rent subsequently accruing, yet where a lessee, who defaulted in payment and against whom the lessor had brought an action of unlawful detainer, retained possession pending a removal of the case to the circuit court, by giving the bond required by Shannon’s Code, sec. 5111, a surrender pending the litigation did not relieve the lessee and her surety from liability on the bond, consequently, while it was unnecessary for the court to render judgment awarding the lessor possession, yet under section 4702, providing that judgment should be molded to suit facts, the judgment should recite the facts, including the surrender, and declare the lessor entitled to possession and assess damages on the bond. (Post, pp. 548-551.) Code cited and construed: Secs. 4702, 5111 (S.). Cases cited and approved: Hanaw v. Bailey, 83 Mich., 24; American Bonding Co. v. Pheblo Investment Co., 150 Fed., 17; Boyd v. Gore, 143 Wis., 531. 3. LANDLORD AND TENANT. Rent. Forfeiture. In order to forfeit a lease for nonpayment of rent, the landlord must demand it on the day, due before sunset, and at the most public place on the land. (Post, pp. 551-554.) 4. LANDLORD AND TENANT. Rent. Nonpayment. Forfeiture. The necessity of demand, which is a condition precedent to the forfeiture of a lease for nonpayment of rent, may be waived by agreement in the lease. (Post, pp. 551-554.) 5. LANDLORD AND TENANT. Nonpayment of rent. Forfeiture. Re-entry. Before a landlord can declare a lease forfeited for nonpayment of rent, re-entry must be effected. (Post, pp. 551-554.) 6. LANDLORD AND TENANT. Forfeiture, Nonpayment of Rent. Re-entry. What Constitutes. In view of Shannon’s Code, sec. ■ 5090, declaring that no person shall enter upon any lands and detain or bold the same, but where entry is given by law, then only in a peaceable manner, the action of unlawful detainer is a substitute for an entry by a landlord to forfeit a lease for nonpayment of rent; the institution of the action having the same effect as an entry. (Post, pp. 551-554.) Cases cited and approved: Parks v. Hays, 92 Tenn., 161; Lewis v. Hughes, 12 C'olo., 208; Guffy v. Hukill, 34 W. Va., 49; Crean v. McMahon, 106 Md. 507; Allen v. Keily, 17 R. I., 731; Whitney v. Brown, 75 Kan., 678, 468; Wilson v. Campbell, 75 Kan., 159; Davidson v. Phillips, 17 Tenn., 93, 95, 96. 7. LANDLORD AND TENANT. Nonpayment of rent. Forfeiture. Where a tenant, against whom judgment for possession because of nonpayment of an installment rent, was rendered in unlawful detainer proceedings, begun in justice court, removed the proceedings to the circuit court, giving the supersedeas bond for the value of the rent of the premises during the litigation required by Shannon’s Code, sec. 5111, it was unnecessary to institute successive actions to enforce the forfeiture for nonpayment of each installment of rent as it fell due, for the single supersedeas bond covered the whole contract. (Post, pp. 554, 555.) Code cited and construed: Sec. 5111 (S.). S. LANDLORD AND TENANT. Nonpayment of rent. Forfeiture. Where a lessor declared a forfeiture of a lease for the nonpayment of an installment of rent, and instituted an action of unlawful detainer to recover possession, the lessee cannot, by a tender of the accrued rent, avoid the forfeiture. (Post, pp. 555, 556.) Case cited and approved: Insurance Co. v. Diggs, 67 Tenn., 563, 569. Case cited and distinguished: Lee v. Security Bank & Trust Co., 124 Tenn., 582. 9. ABATEMENT AND REVIVAL. Death of party. Revival. Necessary parties. “Leasehold.” Under Shannon’s Code, sec. 511, “leaseholds” are interests in land descending to the heirs at law and hence where a lessee died pending an action of unlawful detainer by the lessor, the heirs at law of the lessee are necessary parties upon the revival. (Post, pp. 556, 557.) 10. APPEAL AND ERROR. Review. Questions presented. Where the circuit court to which an action of unlawful detainer was appealed by the lessee, rendered judgment on the lessee’s supersedeas bond, hut failed to render judgment for possession against the heirs of the lessee, the action having been revived in the name of the heirs and administrator, of the lessee who died before judgment, the court of civil appeals may, upon appeal by the surety alone, reform the judgment and render judgment against the heirs. (Post, pp. 556, 557.) Code cited and construed: Sec. 63 (S.). Cases cited and approved: Spillman v. Walt, 59 Tenn., 574.
129 Tenn. 558Southern Railway Co. v. Griffin (1914)
RAILROADS. Statutory, requirements. Approaching city or town. Shannon’s Code, sec. 1574, subsec. 3, providing that, in approaching a city or town, the bell or whistle of a train shall be sounded when at a distance of one mile, and then at short intervals till it reaches the depot or station, and also on leaving a town or city, etc., applies to through trains which do not stop at a town or city as well as to local trains that do stop. (Post, p. 559.) Code cited and construed: Sec. 1574 (S.).
129 Tenn. 560State v. Ragghianti (1914)
PROM SHELLY Appeal from Chancery Court of Shelby County. — P. H. Heiskell and Frarcis Fenteess, Chancellors.
129 Tenn. 572Hunter v. United States Fidelity & Guaranty Co. (1914)
1. INSURANCE. Employers' Indemnity Insurance. Contracts. Construction. A “continuation certificate” made by the president of a hank to a guaranty company in contemplation of the renewal of a fidelity bond, indemnifling it against losses due to the fraud or dishonesty of its cashier, certified that the hooks of the cashier “were examined from time to time in the regular course of business and found correct in every respect, all moneys or property in his control or custody being accounted for with proper securities and funds on hand to balance his accounts, and he is not now in default.” Meld, that the 'certificate was not a warranty of the correctness of such accounts, but merely that examinations were made as represented, and no errors or falsifications wére discovered; the phrase “and he is not now in default,” not being a substantive and d'istiDct warranty, independent of the preceding language, but only expressing the result of the examinations. (Post, pp. 578-580.) Cases cited and approved: First National Bank v. Fidelity & -Guaranty Co., 110 Tenn., 10; United States Fidelity & Guaranty Co. v. Citizens’ Bank (Ky.), 148 S. W., 997; American Bonding Co. v. Spokane Building & Loan Soc., 130 Fed., 737; Title Guaranty & Surety Co. v. Bank of Fulton, 89 Ark., 471; Remington v. Fidelity & Deposit Co., 27 Wash., 429. 2. INSURANCE. Employers’ liability Insurance. Question for Jury. In an action by a bank against a guaranty company upon a fidelity bond indemnifying it against loss due to the fraud or dishonesty of its cashier, held, a question for the jury whether the hank had in good faith made reasonable examinations of the hooks and accounts of the cashier as required by the contract with the guaranty company. (Post, p. 580.) 3. INSURANCE. Employers’ indemnity insurance. Contracts. Construction. A fidelity bond indemnifying an employer against loss due to the dishonesty of an employee is to he construed as an insurance contract and, in cases of doubt, against the insurer. (Post, 1ip. 580, 581.) Cases cited and approved: Railroad v. Fidelity & Guaranty Co., 125 Tenn., 690; Insurance Co. v. Dobbins, 114 Tenn., 239; Royal Ins. Co. v. Vanderbilt Ins. Co., 102 Tenn., 264. 4. INSURANCE. Employers’ indemnity insurance. Contracts. Construction. Words and phrases in an employers’ fidelity bond are to be construed according to their context. (Post, pp. 581-584.) Case cited and approved: Winkler Brokerage Co. v. Fidelity & Deposit Co., 119 La., 735. 5. INSURANCE. Policy. Construction. Warranties. Warranties by the insured are not favored by construction. (Post, p. 584.)
129 Tenn. 586Gulf Compress Co. v. Insurance Co. of Pennsylvania (1914)
1. APPEAL AND ERROR. Harmless error. Submission of unnecessary issues. Where, in an action on a fire policy, the issue was the amount of the loss, the action of the court in submitting the issue of insurer’s good faith in refusing to pay the loss was not prejudicial to insurer, especially as the question of good faith was found in favor of the defendant. (Post, p. 590.) 2. INSURANCE. Fire insurance. Confession of liability. An insurer, agreeing to an arbitration to ascertain the amount of a loss, thereby confesses its liability on the policy, and it cannot escape from the admission by subsequently violating the arbitration agreement, or by withdrawing from the arbitration. (Post, pp. 590-594.) 3. APPEAL AND ERROR. Harmless error. Instructions. Where, in an action a fire policy stipulating that it should be void if insured concealed any material fact, or in case of any fraud touching any matter relating to the insurance before or after a loss, it appeared that insurer agreed to arbitration, but subsequently withdrew therefrom, whereupon insured brought the action on the policy, the refusal to charge that insurer could withdraw from the arbitration whenever it saw fit to do so without giving any reason therefor, which withdrawal did not prejudice its rights under the policy either to contest the amount of the loss or to question the good faith of insured in making proof of loss, was not prejudicial to the insurer, where it was allowed to introduce such evidence as it had on the question of the good faith of insured in making proof of loss and submitting the issue to the jury. (Post, pp. 590-594.) Cases cited and approved: St. Paul Fire & Marine Insurance Co. v. Kirkpatrick, 129 Tenn., -; Hickerson v. Insurance Companies, 96 Tenn., 193; North German Insurance Co. v. Morton-Scott-Robertson Co., 108 Tenn., 384. 4. TRIAL. Instructions. Laying stress on evidence. A requested instruction, which lays stress on a special item of evidence, is properly refused. (Post, pp. 594-596.) 5. TRIAL. Instructions. Assumption of fact. A requested instruction, which assumes a fact not shown by the evidence, is properly refused. (Post, pp. 596, 597.) 6. APPEAL AND ERROR. Harmless error. Admission of evidence. Where, in an action on a fire policy, there was no evidence that insured had knowingly made a false statement of the value of the property destroyed, except in so far as the proof related to his supposed knowledge of another machine of substantially the kind destroyed by fire, but there was no evidence that he had any such knowledge at the time of making the proof, the error in permitting complainant to testify that insurer did not, up to the filing of its crossbill, state to him that a knowingly false proof of loss had been made to defraud insurer,, was not prejudicial to insurer, and must be disregarded, as required by Acts 1911, ch. 32. (Post, p. 597.) 7. APPEAL AND ERROR. Harmless error. Erroneous rulings. In an action on a fire policy against an insurer which had confessed liability, an issue whether insured furnished fraudulent proof of loss was immaterial, and rulings on the issue were not prejudicial. (Post, p. 598.) 8. APPEAL AND ERROR. Verdict. Conclusiveness. A verdict sustained by any evidence cannot be disturbed by the court on appeal. (Post, p. 598.) 9. INSURANCE. Fir© insurance. Loss. Liability. Where insurer refused to replace machinery destroyed by fire with another plant, which could then have been obtained cheap, or to furnish the money to buy it, it could not insist that the loss by the fire should be measured by the cost of the plant is refused to buy. (Post, pp. 598-601.) 10. INSURANCE. Fire insurance. Total loss. “Cash value.” Where there was a total loss of property covered by a fire policy, and the property included a machine which insured purchased for $11,500 at a sacrifice sale, and which was as good as new at the time of the loss, and the machine was insured for $15,000, and insurer failed to settle by procuring an equally good machine for $15,000 several months after the fire, and there was no evidence that the latter machine could have been procured at that price at any earlier or later date, or any other machine of the kind for that price, insured could recover the actual cash value of the property destroyed; “cash value” meaning, what it would cost to reproduce it in the same condition as before the fire. (Post, pp. 601-607.) Cases cited and approved: McCready v. Hartford Insurance Co., 61 App. Div., 584, 585; Standard Sewing Machine Co. v. Royal Insurance Co., 201 Pa., 645; Everett v. Insurance Co. (Tex. Civ. App.), 36 S. W., 125; Prick v. Insurance Co., 218 Pa., 409; Mechanics’ Insurance Co. v. C. A. Hoover Distilling Co., 182 Fed., 590.
129 Tenn. 608Hessig-Ellis Drug Co. v. Stone (1914)
MASTER AND SERVANT. Wages. Liens and preferences. Enforcement. A petition for the establishment of the preferred lien for employees’ wages given by Acts 1897, ch. 78, as amended by Acts 1905, ch. 414, was properly denied where it merely described the property, which was in the hands of a receiver appointed by the court, as the drug business at the corner of C. and M. avenues in M., particularly as there were prior liens on part of the property, as it should have described the property specifically, with a statement of the nature of the lien, or an attachment should have been issued and levied. (Post, pp. 609-613.) Acts cited and construed: Acts 1897, ch. 78. Constitution cited and construed: Art. 2, sec. 17. Cases cited and approved: Luttrell v. Railroad, 119 Tenn., 507; Bryan v. Zarecor, 112 Tenn., 511; Memphis Street Railway v. State, 110 Tenn., 608; Burnett v. Turner, 87 Tenn., 124.
129 Tenn. 614Scheibler v. Steinburg (1914)
1. MALICIOUS PROSECUTION. Element of suit. Termination of original case. In order to maintain a suit for malicious prosecution, plaintiff must allege and prove that the original prosecution has terminated in his favor. (Post, pp. 616, 617.) 2. CRIMINAL LAW. “Nolle prosequi.” A “nolle prosequi” is a formal declaration of record by the prosecuting officer that he will no further prosecute the case either as to some of the counts of the indictment or as to some of the defendants, or all together. (Post, pp. 616, 617.) Cases cited and approved: Swepson v. Davis, 109 Tenn., 107; Pharis v. -Lambert, 31 Tenn., 228; Sloan v. McCracken, 75 Tenn., 626; Gas Co. v. Williamson, 56 Tenn., 314; Stewart v. Sonneborn, 98 U. S., 187; Crescent City Live Stock, etc., Co. v. Butchers’ Union Slaughter House, 120 U. S., 141. 3. MALICIOUS PROSECUTION. Termination of original proceeding. Nolle prosequi. The entry of a nolle prosequi without procurement of the defendant is such a termination of the criminal prosecution in defendant’s favor as to sustain a suit by him for malicious prosecution, though the suit for malicious prosecution is brought on the day following entry of the nolle prosequi, while the court had power to set the nolle prosequi aside, since the court, in an action for malicious prosecution, could look no further than the final judgment to determine whether the prosecution had terminated in favor of the defendant therein. (Post, pp. 617, 618.) Cases cited and approved: State v. Fleming, 26 Tenn., 154; Walton v. State, 35 Tenn., 687; Graves v. Scott, 104 Va., 372; Stanton v. Hart, 27 Mich., 539; Southern Car & Foundry Co. v. Adams, 181 Ala., 147; Swepson v. Davis, 109 Tenn., 107.
129 Tenn. 619State v. Green (1914)
1. CRIMINAL LAW. Trial. Assessment of punishment. Const., art. 6, sec. 14, providing that no fine shall he laid in excess of $50 unless assessed by the jury, requires the assessment by the jury of the fine for an offense finable in excess of $50 at discretion, if it merits more than that amount, and it was error for the court to assess the fine for transporting intoxicating liquor in violation of Acts 1913 (2d Ex. Sess.), ch. 1, imposing a fine of $100 to $500 therefor. ( Post, pp. 621,622.) Constitution cited and construed: Art. 6, sec. 14. Cases cited and approved: Prance v. State, 85 Tenn., 478; Metzner v. State,- 128 Tenn., 45; State v. Fleming, 26 Tenn., 152. 2. CRIMINAL LAW. Appeal and error. Review. Harmless error. Sentence. Error in the court’s assessing the fine for transporting intoxicating liquor in violation of Acts 1913 (2d Ex. Sess.), ch. 1, imposing a fine of $100 to $500 therefor, instead of submitting its amount to the jury, as required by Const, art. 6, sec. 14, was harmless, where the fine was made $100, as it could not be made less. (Post, pp. 622, 623.) 3. INDICTMENT AND INFORMATION. Aider by verdict. Description of offense. The uncertainty of an indictment charging the unlawful transportation of intoxicating liquors “from one point or county in this State to Tipton county” was made certain by proof that the initial point was in Shelby county, and was cured by the verdict of conviction. (Post, pp. 623, 624.)
129 Tenn. 625Lee v. Villines (1914)
1. WILLS. Construction. “Survivors.” Testator bequeathed certain real property to a trustee, to collect the rents and apply the net income to testator’s children, and at the death of either of the children the child or children of the one so dying should receive the portion of the rents and profits that their father or mother enjoyed under the •will, and should any of testator’s children so specified die without child or children, then his or her portion should be paid to the “survivors” in equal portions and the children of such as may have died leaving issue. Held, that such clause was divisible into two parts, the first providing for the vesting of the fee in each portion of testator’s estate held by his trustee for either of testator’s children in the event of the death of of his children leaving a surviving child or children, in which event such surviving grandchild or grandchildren took per stirpes that part of the estate to the use of which the deceased parent had been entitled for life, and the second part providing for the vestiture of the fee in each portion of1 the estate so held in the event either of testator’s children died without child or children surviving, in which event the fee vested per stirpes; the word “survivors” being used to mean, not only testator’s children who survived, but also children of such children as had theretofore died leaving children surviving them. (Post, p. 629.) Cases cited and approved: Davis v. Williams, 85 Tenn., 646; Porter v. Lee, 88 Tenn., 783. 2. WILLS. Construction. Under such clause, on the death of either of testator’s children, the trust ceased as to the share of such children, and the absolute fee vested in the remaindermen. (Post, p. 630.) Case cited and approved: Davis v. Williams, 85 Tenn., 646.
129 Tenn. 631Bond v. Ungerecht (1914)
FROM HAYWOOD. Appeal from the Chancery Court of Haywood County to the Court of Civil Appeals and by certiorari from the Court of Civil Appeals to the Supreme Court.— C. P. McKinney, Judge.
129 Tenn. 637Charles B. James' Land & Investment Co. v. Vernon (1914)
SPECIFIC PERFORMANCE. Contract to convey land. Separate tracts. Partial failure of title. Where a vendor contracted to convey separate tracts of land, and thereafter discovered that because of a failure of title as to a tract which formed an insignificant portion of the whole he was unable to perform as agreed, and the tract as to which the title failed was immaterial to the purchaser’s enjoyment of the rest, the vendor was entitled to enforce specific performance of the part as to which he was able to perform, allowing a proportionate rebate' in the price for the deficiency. (Post, 638-650.) Cases cited and approved: Foley v. Crow, 37 Md., 51; De Wolf v. Pratt, 42 Ill., 198; Coleman’s Ex’r v. Meade, 13 Bush (76 Ky.), 358; Shaw v. Vincent, 64 N. C., 690; Farris v. Hughes, 80 Va., 930; Creigh’s Adm’r v. Boggs, 19 W. Va., 240; Morgan’s Adm’r v. Brast, 34 W. Va., 332; Van Blarcom v. Hopkins, 63 N. J.-Eq., 466; Keepers v. Yocum, 84 Kan., 554; McCourt v. Johns, 33 Ore., 561; Topp v. White, 59 Tenn., 165; Winfrey v. Drake, 72 Tenn., 293. Cases cited and distinguished: Newman v. Maclin, 6 Tenn., 241; Wood v. Mason, 42 Tenn., 251; Cunningham v. Sharp, 30 Tenn., 116; Galloway v. Bradshaw, 37 Tenn., 70.
129 Tenn. 651Calhoun v. McCrory Piano & Realty Co. (1914)
PRINCIPAL AND AGENT. Unauthorized execution of note by agent. Liability of principal. Where an agent, with authority to make sales and collect the price, hut without authority to borrow money, was a defaulter, and then borrowed money and executed a note therefor in his principal’s name, and remitted out of the loan a sum less than the amount of the defalcation, the principal, receiving the remittance as one on sales, was not liable on the note, under the equitable doctrine that, where.a principal obtains the benefit of a loan procured by his agent acting without authority, he ratifies the same and makes himself liable to the lender. {Post, pp. 651-655.) Cases cited and approved: Bannatyne v. Mclver, 1 K. B., 103; Alton Mfg. Co. v. Garrett Bibical Institute, 243 Ill., 298; Mc-Adow v. Black, 4 Mont., 475; Mundorff v.. Wickersham, 63 Pa., 87. Cases cited and distinguished: Blackburn Bldg. Soc. v. Cunliffe, 22 Ch. D., 6172; Reversion Fund, etc., v. Maison Cosway, Ann. Cases, 1913, 1106.
129 Tenn. 656Western Union Telegraph Co. v. Franklin (1914)
1. TELEGRAPHS AND TELEPHONES. Nondelivery of message. Actions. Evidence. Sufficiency. In an action for damages for nondelivery of a death message, evidence held insufficient to show that defendant’s messengers made inquiries at the address given in the message. (Post, pp. 658-660.) 2. TELEGRAPHS AND TELEPHONES. Delivery of messages. I nquiries. Where a telegraph message contained no intimation that the addressee had an agent to receive it at the place to which it was sent, the telegraph company’s messenger need not make inquiries as to whether there is such an agent, hut the agent should reveal himself in case of inquiry at the place of address. (Post, pp. 660-661.) ‘ Cases cited and approved: Western Union Telegraph Co. v. Redinger, 66 S. W., 485; Western Union Telegraph Co. v. Cohb, 95 Tex., 333; Western Union Telegraph Co. v. Barefoot, 97 Tex., 159; Western Union Telegraph Co. v. Mitchell, 91 Tex., 454; Lyles v. Western Union Telegraph Co., 84 S. C., 1; Telegraph Co. v. McCaul, 115 Tenn., 99. 3. TELEGRAPHS AND TELEPHONES. Messages. Delivery agent. A telegram cannot be delivered to any one but the addressee, unless he has appointed an agent to receive it, or there is a custom warranting delivery to another. (Post, pp. 660, 661.) '4. TELEGRAPHS AND TELEPHONES. Delivery of messages. Duty of telegraph company. A telegraph company should, if possible by a reasonable effort, deliver messages personally to the addressee. (Post, pp. 660, 661.) 5. TELEGRAPHS AND TELEPHONES. Nondelivery of messages. Actions. Defenses. Where the addressee of a death message had an agent who was to bring it to her from the place of address, and the telegraph company’s messenger failed. to make inquiry or to offer the message for delivery at the place of address, the company cannot escape liability for nondelivery on the theory that the addressee’s agent might not have performed her duty, or might not have been at the place of address when the inquiries were made. (Post, pp. 661, 662.)
129 Tenn. 663Baker Watkins Supply Co. v. Fowlkes (1914)
1. JUSTICES OF THE PEACE. Execution. Lien. Creation. The purpose of Acts 1899,' ch. 39, providing that whenever any execution, issued by a justice of the peace, is levied on real estate, the title to the real estate shall not be affected as to third parties, unless the execution or the papers in the case are filed in the circuit court within ten days after the levy, is to give third parties notice of the lien of the execution, and is for the protection of third parties. (Post, p. 667.) Code cited and construed: Secs. 4808-4810 (S.); subsec. 8, sec. 5892 (S.); subsecs. 3, 6, sec. 5938 (S.). Acts cited and construed: Acts 1899, ch. 39. 2. JUSTICES OF THE PEACE. Execution. Validity. Loss of summons. An execution issued by a justice of the peace was not rendered invalid by the fact that at the date of its issuance the original summons was lost, and no steps had then been taken to supply it; Shannon’s Code, sec. 4800, providing that, when the docket book and the original papers are destroyed, the justice of the peace may supply them, and issue execution as though they had not been destroyed, not being applicable, since it outlines the practice where all the papers and docket book are lost, and not where the summons alone is lost. (Post, pp. 668-671.) Code cited and construed: Sec. 4800 (S.); sec. 5701 (S.); subsec. 3, sec. 5938 (S.); subsec. 6, sec. 5938 (S.); see. 5941-5946 (S.). 3. EXECUTION. Filing transcript in superior court. Loss of summons. Establishment and restoration. Under Shannon’s Code, sec. 5701, providing that any record, proceedings, or paper, filed in an action, either at law or equity, if lost or mislaid, may be supplied, upon application, -under the orders of the court, where a cause had been transferred from a justice of the peace to the circuit court after the levy of an execution on land for the purpose of obtaining an order of condemnation, the circuit court could make an order supplying the original summons, though it had never been on file in that court, it having been lost before the transfer of the cause, since the power vested in courts by the statute is not limited to papers filed in the court which makes the order, but applies to any paper “filed in an action.” (.Post, pp. 671-675.) Code cited and construed: Sec. 5701 (S.); secs. 4800, 5701 (S.). Act cited and construed: Acts 1899, ch. 39. Oases cited and approved: Crabtree v. Bank, 108 Tenn., 483; Tyree v. Magness, 33 Tenn., 276; Elliott & Co. v. Jordan, 66 Tenn., 376; Childress v. Lewis, 61 Tenn., 12; Lane v. Jones, 42 Tenn., 318; Graves v. Keaton, 43 Tenn., 9; Faust v. Echols, 44 Tenn., 398; Glass v. Stovall, 29 Tenn., 453; Hollins v. Johnson, 40 Tenn., 346; Parker v. Swan, 20 Tenn., 81; Farquhar v. Toney, 24 Tenn., 502; Stole v. Gardner, 81 Tenn., 135. Cases cited and distinguished: Halliburton v. Jackson, 79 Tenn., 471; Anderson v. Talbot, 48 Tenn.,- 410.
129 Tenn. 676City Lumber Co. v. Barnhill (1914)
1. HUSBAND AND WIFE. Wife’s Separate Estate. Liability to charge for benefits. Real property not shown to be the separate property of a married woman cannot be charged as such, even for benefits accruing to her interest. (Post, pp. 677, 678.) Case cited and distinguished: Shacklett v. Polk, 51 Tenn., 104. 2. HUSBAND AND WIFE. Evidence as to ownership. Presumption. There is no presumption that a married woman’s property is her separate estate rather than her general estate, but the presumption is rather to the contrary. (Post, pp. 677, 678.) Case cited and distinguished: Shacklett v. Polk, 51 Tenn., 104. 3. HUSBAND AND WIFE. Wife’s separate estate. Lien. Under the express provisions of Shannon’s Code, secs. 3532, 3533, a furnisher’s lien on the real estate of a married woman, both her separate and general estate, cannot be established when there, is no contract evidenced by a writing signed by her, and, where the one furnishing the goods for which the lien is sought to be established knew that the right and title to the realty was in her, he has no right to remove the goods. (Post, pp. 678, 679.) Codes cited and construed: Secs. 3532, 3533 (S.). Cases cited and approved: Cage v. Lawrence (Ch. App.) 57 S. W. 192; Baker v. Stone (Ch. App.) 58 S. W. 761.
129 Tenn. 680Williams v. Birmingham & N. W. Ry. Co. (1914)
1. RAILROADS. Liens for labor. Suit to enforce. Bill. Description. Definiteness. A bill to enforce a lien for railroad construction work must, in tlie absence of an attachment, describe the property on which, it is sought to enforce the lien with sufficient definiteness to identify it and segregate it. (Post, p. 684.) Act cited and construed: Acts 1891, ch. 98. Case cited and distinguished: Luttrell v. Railroad, 119 Tenn., 492. 2. RAILROADS. Liens for Labor. Suit to enforce. Bill. Sufficiency. A bill to enforce a lien on a railroad for construction work, which alleges that defendant railroad company owned and operated a line of railway from a designated point through enumerated counties, that codefendant, the principal contractor, contracted with the railway company for the construction of its line of road, and that complainant performed work described, sufficiently identifies and locates the line of railroad on which the lien is claimed, as required by Acts 1891, ch. 98, secs. 2, 3. (Post, p. 684.) Act cited and construed: Acts 1891, ch. 98. Case cited and distinguished: Luttrell v. Railroad, 119 Tenn., 492. 3. STATUTES. Construction. Rules of construction. The rule for the construction of statutes to which all other rules must yield is that the intention of the Legislature must prevail. (Post, pp. 685-690.) Acts cited and construed: Act's 1883, ch. 220; Acts 1891, ch. 98. Code cited and construed: Sec. 399 (S.). Cases cited and distinguished: Barnes v. Thompson, 32 Tenn., 314. Cases cited and approved: Camphellville Lumber Co. v. Hubbert, 112 Fed. 718; Union Bank v. Laird, 15 U. S., 390; Brown v. Hamlett, 76 Tenn., 735; Gold v. Fite, 61 Tenn., 248; Maxey v. Powers, 117 Tenn., 103; Alley v. Lanier, 41 Tenn., 541; Kay v. Smith, 57 Tenn., 42; Steger v. Arctic Refrigerator Co., 89 Tenn., 453; Ragon v. Howard, 97 Tenn., 341. 4. STATUTES. Construction. Legislative intent. The court, in seeking to ascertain the intent of the Legislature in adopting a statute, must look to the whole statute, and give to it such a construction as will effectuate the legislative purpose. {Post, pp. 685-690.) 5. RAILROADS. Mechanics’ liens. Enforcement. Venue. Acts 1883, ch. 220,. as amended by Acts 1891, ch. 98, giving to subcontractors and laborers who perform work in the construction of a railroad a lien thereon, which “may be enforced by suit ... in the circuit or chancery court of the county or district where the work . . . was done,” does not limit the venue of suits to enforce liens, and does not prohibit suits in the county where the principal office of a railroad is situated and in which a material part of its line is located, though the work was done elsewhere. (Post, pp. 685-690.) 6. LIENS. Statutes. Construction. Lien statutes must be liberally construed, to carry out the legislative purpose, and to secure and protect those entitled to a lien. {Post, pp. 685-690.) 7. STATUTES. Construction. Meaning of words. “May.” The word “may” in a statute will not be construed to mean “shall,” where such a construction will tend to defeat the object of the statute, though it will be so construed, where such a construction is necessary to effectuate the purpose of the act. {Post, pp. 685-690.) 8. RAILROADS. Foreclosure of liens. Parties. Where a contractor under a subcontractor from the principal . contractor for the construction of a railroad brought suit to enforce a lien, and alleged an indebtedness from the principal contractor to the subcontractor, and averred that the state of accounts between them on the one hand, and complainant and the subcontractor on the other, was open, the principal contractor was at least a proper party. (.Post, p. 690.)
129 Tenn. 691Harowitz v. Concordia Fire Ins. (1914)
1. INSURANCE. Adjustment of loss. Appraisal. An insurer was not entitled to demand an appraisement, to determine the loss under a policy providing for such an appraisement in case of disagreement, where it made no objections to the proofs of loss submitted, or any effort to agree on the amount thereof, but its whole attitude was a denial of all liability. {Post, pp. 693-699.) Case cited and distinguished: Hickerson & Co. v. Insurance Co., 96 Tenn., 198. 2. INSURANCE. Adjustment of Loss. Appraisal. While provisions in an insurance policy for an appraisement are valid, and may be made a condition precedent to bringing suit, they cannot oust the courts of their jurisdiction as to the insured’s legal liability; and where an insurer’s attitude was a denial of all liability, the court’s jurisdiction was not ousted by a demand for an appraisal. {Post, pp. 699, 701.) Case cited and distinguished: Hickerson & Co. v. Insurance Co., 96 Tenn., 198. 3. INSURANCE. Adjustment of Loss. Appraisal. An insurer’s demand for an appraisement of the loss was a concession of its liability for some amount. {Post, pp. 701-703.) Case cited and distinguished: Hickerson & Co. v. Insurance Co., 96 Tenn., 198. Cases cited and approved: Grand Rapids Fire Ins. Co. v. Finn, 50 L. R. A., 555; Grady v. Home Fire & Marine Ins. Co., 4 L. R. A., 291; Graham v. German American Ins. Co., 15 L. R. A., 1060. 4. INSURANCE. Actions on Policies. Penalties. Under Acts 1901, cli. 141, authorizing the court in its discretion to impose a penalty upon an insurer, if its refusal to pay a loss was not in good faith, the chancellor was within his judicial discretion in refusing to assess the penalty, where the evidence disclosed that the fireman and others discovered gasoline or coal oil on the goods, justifying a suspicion that the fire was of dishonest origin, though that defense was not made. (Post, pp. 703, 704.) Acts cited and construed: Acts 1901, ch. 141.
129 Tenn. 705State v. Union Ry. Co. (1914)
1. COURTS. Judgment. Stare Decisis. Res Judicata. A decision that railway company is, in view of its charter and its work, a commercial and not a terminal railway is conclusive as to rights based thereon, whether under the rule of res judicata or stare decisis, which rights will he protected as against a subsequent demand involving the same question. (Post, pp. 707-711.) Cases cited and distinguished: Collier v. Union Bail way Co., 113 Tenn., 96; State ex rel. Wellford v. Union Bailway Co., 113 Tenn., 96. Case cited and approved: Wilkins v. Bailroad, 110 Tenn., 422. 2. RAILROADS. Privilege taxes. “Railroad terminal corporation.” A railway company which leases from other railway companies their terminal facilities, and which contracts to do their terminal business, and to provide adequate terminal facilities, and take possession of trains entering receiving tracks, and switch and deliver cars therein to their respective destinations within the switching district, including the delivery of cars to connecting lines, and to render all switching services required for the prompt handling of cars for loading, unloading, or repairs, and to set apart exclusively for the business of the other companies terminal facilities, with the right of exclusive management and control of the terminal facilities, etc., contracts for the performance of duties falling within the functions of a railroad terminal corporation within Shannon’s Code, sees. 2430, 2431, providing for the organization of railway terminal companies, and it is liable to privilege taxes imposed on railroad terminal corporations; a railroad terminal corporation being an instrumentality which assists railroad transportation corn-129 Tenn. 45 pañíes in tiie transfer of traffic between different lines, and in the collection and distribution of traffic. (Post, pp. 711-728.) Case cited and distinguished: United States v. Terminal R. R. Association of St. Louis, 224 U. S. 383. Cases cited and approved: Dean v. St. Paul Union Depot Co., 41 Minn., 360; Brady v. Chicago Great Western Railway Co., 114 Fed., 100; Floody v. Great Northern Railway Co., 102 Minn., 81; Belt Railway Co. of Chicago v. U. S., 168 Fed., 542; Union Depot & Railway Co. v. Londoner, 60 Colo., 22; Hunt v. N. Y., N. H. & Hartford Ry. Co., 212 Mass., 102; Memphis & Little Rock R. R. Co. y. State of Tennessee, 77 Tenn., 218.