132 Tenn.

Volume 132 — Tennessee Reports

68 opinions

132 Tenn. 1Tennessee Central Railroad v. Morgan (1914)
1. TRIAL. Direction of Verdict. Evidence. In passing on a motion for a peremptory instruction, the court must take the most favorable view of the evidence appearing from the record, supporting the rights asserted by the party against whom the motion is made. (.Post, p. 4.) Case cited and distinguished: Tyrus v. Railroad, 114 Tenn., 579-594. 2. TRIAL. Taking case from jury. Question of law or fact. Conflicting evidence. There can be no constitutional exercise of the power to direct a verdict in any case where there is a dispute as to any material evidence ot any legal doubt as to the conclusion to be drawn from the whole evidence upon the issues to be tried, but the case must go to the jury; but, if there is no such dispute, the question is one "of law for the court. {Post, p. 12.) Case cited and approved: Railroad v. Scott, 87 Tenn., 494. Case cited and distinguished: Railway v. Haynes, 112 Tenn., 712. 3. RAILROADS. Accident at crossing. Question for jury. In an action for the death of the husband of one of the plaintiffs and for personal injuries to the other plaintiffs, when their buggy was struck by defendant’s engine, held, on the evidence, tliat whether defendant’s trainmen were negligent in not keeping a lookout, and whether the engineer, after plaintiffs’ peril had been discovered, took the right precautions against injury, were for the jury. {Post, p. 17.) 4. RAILROADS. Accident at crossing. Instructions. Negligence. “An instruction that the situation of the locality as to obscuring the view of plaintiffs in the buggy or the trainmen on the engine, not caused by the default of either, was not the basis for a recovery or for liability, but that such situation and the rate of speed and the nearness of the engine to a train ahead of it were all to be considered in determining whether the statutory requirements had been complied with, and, if not, whether such failure was due to plaintiffs’ sudden appearance on the track, so that defendant’s servants had no time to comply therewith, was proper. {Post, p. 17.) 5. RAILROADS. Accident at crossing. Instructions. Contributory negligence. An instruction that it was the duty of one crossing a railroad track to be mindful of trains and to look and listen, and, if necessary, stop, and to exercise that care and caution which a reasonably prudent person would exercise, under similar circumstances, to protect himself, was proper. (Post, p. 17.) 6. TRIAL. Instructions. Emphasizing particular facts. Where the defendant’s requests were so worded that they might have caused the jury to overlook its duty as to so sounding the whistle, if that could he done, the qualification of such instructions, so as to prevent the jury from overlooking such duty, if, under the circumstances, that was the best thing to do, and if the engineer had time to do so, was not objectionable as putting an undue emphasis on that feature of the case. (Post, p. 17.) 7. TRIAL. Infringement of jury trial. Withdrawal of evidence from jury. “Will.” “Must.” “Shall.” Where the jury believe that a witness has sworn falsely and corruptly in one material respect, they may disregard the evidence altogether, except in so far as it is corroborated by other credible evidence; but an instruction that “you ‘will’ reject his testimony altogether” was equivalent to “shall” or “must” and erroneous as withdrawing from the jury all the evidence which they might deem of the character indicated and denying the parties the constitutional right of trial by jury. (Post, p. 19.) S. APPEAL AND ERROR. Harmless error. Instructions. Such error was not harmless, within chapter 32 of the Acts of 1911, providing that no verdict shall be set aside or new trial granted for error in the charge or any error, unless it affirmatively appears that it has affected the result of the trial. (Post, p. 19.) 9. APPEAL AND ERROR. Assignment. Fundamental error. Error, -in an instruction as to the credibility of a witness testifying falsely in one material particular, equivalent to a withdrawal of evidence of such character, and to a deprivation of the constitutional right cf l-.lal by jury, held to make it the duty of the supreme court to consider it as if it had been properly assigned. (Post, p. 19.) 10. WITNESSES. Impeachment. In action for the death of plaintiff’s husband and for injury to other plaintiffs from being struck by defendant’s engine, where a witness for plaintiff testified that the defendant’s fireman was a man of bad character when he lived in witness’ neighborhood twelve or thirteen years before the trial, a letter written by the witness certifying that the fireman had been a quiet, peaceable boy was admissible to discredit the witness. (Post, p. 21.)
132 Tenn. 23Boyd v. Coca Cola Bottling Works (1914)
1. FOOD. Bottling, of tonic. Negligence. Pleading and proof. Variance. In an action against a bottling company for injuries from drinking a tonic negligently placed in a bottle containing a cigar stub, there was no fatal variance between an allegation of the declaration that defendant negligently placed the cigar stub in the bottle, and the proof that it was placed in the bottle by some one else, and was there when the bottle was filled, where the real negligence charged in the declaration was the bottling of the cigar stub and placing of the bottle on the market. (Post, p. 26.) 2. FOOD. Poisonous substances. Contributory negligence. A consumer was not negligent for failure to examine a bottle of tonic for poisonous substances, where it was sealed when bought from the dealer to whom the bottling works had sold it, especially where the bottle and the fluid were both dark in color, and the poisonous substance, a cigar stub, could not have been readily discerned. (Post, p. 26.) 3. FOOD. Poisonous substances. Liability of Manufacturer to Consumer. In an action for injuries from drinking a tonic containing a poisonous substance, the bottle containing same having been bought sealed from an intermediate dealer to whom the defendant manufacturer had sold it, want of contract or privity between defendant and the person injured constituted no defense; a person who undertakes to perform an act which, if not done with care and skill, will imperil the lives of others, being liable-to others suffering from his negligence. (Post, p.’27.) Cases cited and approved: Thomas v. Winchester, 6 N. Y., 397; Blood Balm Co. v. Cooper, S3 Ga., 457; Watson v. Augusta Brewing Co., 124 Ga., 121; Salmon v. Libby, 219 Ill., 421; Bisbop v. Weber, 139 Mass., 411; Mazetti v. Armour & Co., 48 L. R. A. (N. S.), 213. Cases cited and distinguished: Burkett v. Mfg. Co., 126 Tenn., 467; Tomlinson v. Armour & Co., 76 N. J. L., 748; 19 L. R. A. (N S.), 923.
132 Tenn. 31Cross v. Fisher (1915)
1. SCHOOLS AND SCHOOL DISTRICTS. Consolidation of schools. Discretion of officers. Statute. Under Acts 1913, ch. 4, providing generally for the consolidation of schools, the public transportation of pupils, and the employment of supervisors, the consolidation of schools is not required, hut is merely permitted, and the question how the law shall he administered in such respect is left to the discretion of the county hoard of education. (Post, p. 39.) Acts cited and construed: Acts 1913, ch. 4, 23, sec. 2; Acts 1873,. ch. 25; Acts 1891, ch. 132; Acts 1907, ch. 236,’ sec. 10, suhsec. 4; Acts 1909, ch. 264, sec. 3. Constitution cited and construed: Art. 2, sec. 17; Art. 11, secs. 8, 12. Case cited and approved: Leeper v. State, 103 Tenn., 500. 2. SCHOOLS AND SCHOOL DISTRICTS. Transportation of pupils. Statute. Constitutionality. Acts 1-913, ch. 4, sec. 2, providing for the transportation of children residing too far from a school to attend otherwise, if there are enough children so situated, though vesting a discretion in school hoards to discriminate reasonably between pupils living in sufficient numbers at a distance from a school to need transportation, and those so living in insufficient numbers, is not vio-lative of Const, art. 11, sec. 12, setting apart the interest on the common school fund for the equal benefit of all the people,, since such section must be construed with section 8 of the same article, providing that the legislature shall not pass any law for the benefit of individuals inconsistent with the general law of the land, nor any law granting to any individual rights or exemptions other than such as may be extended by the same law to any member of the community who can bring himself within the law, for while, by necessity, children of some citizens resident at a distance from the schools may be deprived of the transportation extended to others, nevertheless such citizens can bring themselves within the law by changing residence. (Post, p. 39.) Acts cited and construed: Acts 1913, ch. 4. Constitution cited and construed: Art. 11, sees. 8, 12. Case cited and approved: Fogg v. Board of Education, 76 N. H„ 296. Case cited and distinguished: Carey v. Thompson, 66 Vt., 665. 3. SCHOOLS AND SCHOOL DISTRICTS. Consolidation of schools. Discretion of board. Abuse. Remedy. If a county board of education, acting under Acts 1913, ch. 4, providing for the consolidation of schools, the public transportation of pupils, and the employment of supervisors, in consolidating certain schools into one had ignored all reasonable rules, acting in an arbitrary manner, so as to abuse its discretion, by disregarding the wishes, welfare, and interests of the taxpay- , ers of the district, the action of the officials would have been proper subject for correction by injunction because of abuse of power. (Post, p. 44.) 4. SCHOOLS AND SCHOOL DISTRICTS. Officers. Constitutional and statutory provisions. “County officers.” “Employee.” Acts 1913, eh. 4, sec. 3, giving boards of education authority to employ supervisors of schools, whose duty shall be to assist county superintendents in the organization, gradation, and supervision of schools, etc., and to pay them out of the respective school funds of counties, etc., does not violate Const., art. 11, sec. 17, providing that no county office created by the legislature shall be filled otherwise than by the people or the county courts, since the appointees contemplated by the act are not “county officers,” but mere “employees.” (Post, p. 45.) Constitution cited and construed: Art. 11, sec. 17. Case cited and approved: Prescott v. Duncan, 126 Tenn., 106.
132 Tenn. 47Dietzel v. State (1915)
1. INDICTMENT AND INFORMATION. Names of witnesses. In-dorsement. Statute. Under Shannon’s Code, sec. 7054, requiring the foreman of the grand jury to indorse on the indictment the names of witnesses sworn hy him, hut that the omission to indorse shall in no case invalidate the indictment if the witnesses were actually sworn according to law, where the plea in abatement, to an indictment for murder, for failure to indorse thereon the names of witnesses examined hy the grand jury, disclosed that the witnesses were sworn in fact, the indictment was not invalid. (Post, p. 67.) Acts cited and construed: Acts 1875, ch. 30. Code cited and construed: Secs. 7054, 7057 (S.). 2. CRIMINAR LAW. Plea in abatement. Late filing. Where an indictment for murder in the first degree was returned September 9th, and the court remained in session from day to day until September 21st, when a plea in abatement to such indictment set up that names of witnesses before the grand jury were not indorsed thereon as required hy statute, the plea came too late, since such pleas are not favored and must he filed at the first opportunity. (Post, p. 69.) Cases cited and approved: Ransom v. State, 116 Tenn., 363; Rivers v. State, 117 Tenn., 240; Pennell v. State, 122 Tenn., 628; Chairs v. State, 124 Tenn., 632; Ashby v. State, 124 Tenn., 693. 3. CRIMINAL LAW. Appeal and error. Harmless error. Exclusion of evidence. In a prosecution for murder, where, to establish an alibi, defendant’s sister testified that she had seen him come home at a certain hour, and, to corroborate such sister, her lover gave certain testimony as to her having been slightly late to an appointment with him, such lateness, according to the sister’s testimony, having been because she could not leave the house, as she did not wish her brother, the defendant, who had just returned, to see her, the exclusion of the lover’s testimony that the girl had told him she was late because her brother was in the house was harmless, where, from testimony admitted, it must have been apparent to the jury that such was the explanation that the witness would have testified she gave him. (Post, p. 69.) Case cited and distinguished: Legere v. State, 111 Tenn., 368. Cases cited and approved: Hays v. Cheatham, 74 Tenn., 2; Dossett v. Miller, 35 Tenn., 76; Queener v. Morrow, 41 Tenn., 123; Third Nat. Bank v. Robinson, 60 Tenn., 479. 4. WITNESSES. Corroboration. Previous consistent statements. In a prosecution for murder, where the State made no effort to impeach, by evidence of former contradictory statements, the testimony of defendant’s sister that she had been delayed in keeping an appointment with her lover on account of the return of defendant to the house at a certain houf, which tended to establish an alibi, testimony of the lover himself as to what explanation the sister gave him of her lateness was properly excluded, since proof of prior consistent statements to corroborate a witness is inadmissible, unless the witness is impeached. (Post, p. 69.) 5. CRIMINAL LAW. Evidence. Res Gestae. In a prosecution for murder, where an alibi was sought to be established by the testimony of defendant’s sister that she was late in keeping an appointment with her lover because she could not leave the house on account of defendant’s return at a certain hour, evidence of the lover that when she met him she gave him such reason for her lateness was not admissible as part of the res gestae. (Post, p. 73.) 6. CRIMINAL LAW. Circumstantial evidence. Instructions. Degree of proof. In a prosecution for murder, where the court charged that, if certain facts were found to be true beyond a reasonable doubt, then defendant was guilty of murder in the first degree, followed by an instruction that, where circumstances alone are relied upon to convict, the proof must be so cogent, powerful, and well connected as to satisfy beyond a reasonable doubt of defendant’s guilt, and to exclude every other reasonable hypothesis, such instructions, taken together, were correct upon the point of the degree of. certainty of proof required for conviction. (Post, p. 73.) 7. CRIMINAL LAW. Alibi. Sufficiency of evidence. In a prosecution for murder, evidence held insufficient to establish an alibi. (Post, p. 75.) 8. HOMICIDE. Motive. Sufficiency of evidence. In a prosecution for murder, evidence held sufficient to establish a motive. (Post, p. 75.) 9. HOMICIDE. Guilt. Sufficiency of evidence. Tn a prosecution for murder, circumstantial evidence held sufficient to show defendant’s guilt as excluding every other reasonable hypothesis. (Post, p. 76.)
132 Tenn. 80Anderson-Tully Co. v. Thompson (1915)
1. EQUITY. Jurisdiction. Lands in another State. An equity court has no jurisdiction to entertain a suit to try title to or to recover possession of land, or to enjoin a threatened trespass, where the land is situated in another State, so that, to enforce its decree, the process of the court would have to act upon the property, since such actions are local, not transitory, while equity acts in personam, not in rem. (Post, p. 87.) Cases cited and approved: Penn v. Lord Baltimore, 1 Vezey, 148: Arglosse v. Muschamp, 1 Vernon, 76; Earl of Kildare v. Sir Morrice Eustace and Fitzgerald, 1 Vernon, 419; Toller v. Car-teret, 2 Vernon, 494; Watkins v. Holman, 16 Peters, 25; Watts v. Waddle, 6 Peters, 389; Pennoyer v. Neff, 95 U. S., 723; Burn-ley v. Stevenson, 24 Ohio St., 478; Seixas v. King, 39 La. Ann., 510; Johnson v. Kimbro, 40 Tenn., 557; Miller v. Birdsong, 66 Tenn., 531; W. N. Tel. Co. v. W. & A. R. R. Co., 67 Tenn., 54-61; Kirklin v. Atlas Svgs. & Loan Assn. (Tenn. Ch. App.), 60 S. W., 149; Miss. & Mo. R. R. Co. v. Ward, 67 TJ. S., 485; Nor. Ind. R. R. Co. v. Mich. Cent. R. R. Co.,-56 U. S., 232; Saltón Sea Cases, 172 Fed., 792; Great Falls Mfg. Co. v. Worster, 23 N. H., 462; Mattix v. Swepston, 127 Tenn., 693. Cases cited and distinguished: Telegraph Co. v. Railway, 67 Tenn., 54; Massie v. Watts, 6 Cranch, 148. 2. EQUITY. Jurisdiction of person. Enforcement of contract concerning foreign lands. Where plaintiffs, by contract with the defendants, had the right to remove timber from certain lands in another State, a court of equity, having jurisdiction of the persons of defendants, could restrain them, from unlawfully interfering with the plaintiffs in removing the timber under the contract, although the rights involved grew out of such real estate, since the only action required of defendants, to afford the plaintiffs a complete remedy, was merely to refrain from unlawfully and fraudulently interfering by themselves or servants. (Pos . p. 89.)
132 Tenn. 92Cole v. Taylor (1915)
1. SLAVES. Legitimation. Direct and collateral inheritance. Under Acts 1865-66, eh. 40, secs. 1, 2, giving to all negroes and . their descendants haying any African blood the right to inherit, and section 5, limiting the fight of inheritance by children of former slaves to property acquired by their parents, the right of inheritance does not extend beyond direct inheritance from the parents, and does not include the right of collateral inheritance, and this declared policy of the State the courts, on the ground of comity alone, will not vary, so as to allow a collateral inheritance between children of a legitimized slave marriage coming from other States which it does not allow to native former slaves; so that a woman born in slavery under a slave marriage, who, with her brother, was legitimized by the law of another State, could not inherit from her deceased brother. (Post, p. 95.) Cases cited and approved; Carver v. Maxwell, 110 Tenn., 75; Jones v. Jones, 234 U. S., 616; Williams v. State, 67 Ga., 262; Tucker v. Bellamy, 98 N. C., 31; Jones v. Hoggard, 108 N. C., 178; Williams v. Kimball, 35 Fla., 49; Sheperd v. Carlin, 99 Tenn., 64. Cases cited and distinguished: Gregley v. Jackson, 38 Ark., 487; Miller v. Miller, 91 N. Y., 315. 2. SLAVES. Legitimation. Status. The status of legitimacy of the children of slave marriages fixed by the laws of one jurisdiction follows the person, and should be sustained in every State to which he may go, though the rule must yield to the policy of the State of adoption so far as inheritance is concerned. (Post, p. 102.) Acts cited and construed: Acts 1865, ch. 40, secs. 1, 2, 5. Cases cited and approved: Finley v. Brown, 122 Tenn., 335; Cope v. Cope, 137 U. S., 682; Levy v. McCartee, 6 Pet., 102; Blytlie v. Hinckley, 180 TJ. S., 333. Cases cited and distinguished: Miller v. Miller, 91 N. Y., 315; Ross v. Ross, 129 Mass., 243; Dayton v. Adkisson, 45 N. J. Eq., 603; Williams v. Kimball, 35 Fla., 49; Ewing v. Sneed, 5 J. J. Marsh (Ky.), 459; Lingen v. Lingen, 45 Ala., 410; Harris v. Harris, 85 Ky., 49; Leonard v. Braswell, -99 Ky., 528; In re Waesch’s Estate, 166 Pa., 204; Doe v. Vardill, 5 Bar. & Cr., 438; Jones v. Jones, 234 TT. S., 618. . . 3. DESCENT AND DISTRIBUTION. “Inheritance.” What law governs. “Natural right.” The State possesses the power to prescribe the laws under which property within the State may descend, and may preclude any other mode or law of descent, and, being the sovereign of the soil, the policy of its laws as to the descent of real property is paramount to that of the legal status of persons coming from .foreign countries in case of a conflict of laws; “inheritance” not being a “natural or absolute right,” but purely a creature of statutory law governed by the lex rei súae. (Post, p. 102.) 4. SLAVES. Persons born In slavery. Status. “Bastard.” A person born of parents while in a state of slavery is regarded as a.bastard, as the state of bondage precluded the husband and wife yielding to each other the duty, fealty, and protection that the law requires, and because of incapacity to contract; it following necessarily there was no lawful issue, as there was no lawful marriage in such cases. (Post, p. 109.)
132 Tenn. 111Napier v. Church (1915)
1. WILLS. Probate. Legitimacy of contestant. Where the proponent of a will, upon petition to contest as heir of decedent, alleges the illegitimacy of the contestant, the determination of such contestant’s right is the initial inquiry, separate from and preliminary to the contest itself. (Post, p. 115.) Cases cited and approved: Shaller v. Garrett, 127 Tenn., 665; Cowan v. Wallrer, 117 Tenn., 135. 2. MARRIAGE. Slaves. Effect. Since slaves could not contract, they could not enter into a valid marriage, and from their unions no civil rights could spring, so that the issue were incapable of inheriting property, the marriage being a mere cohabitation, subject to termination at the will of the master. (Post, p. 118.) 3. DESCENT AND DISTRIBUTION. Legitimacy. Controlling law. While, as to the right of inheritance, the status of a party as to legitimacy depends upon the law-of the domicile of the parents, nevertheless where such State is foreign to that of the decedent at the time of his death, where his property is situated, the laws of such State, as to the party’s right of inheritance, are not controlled by those of the foreign State, since every State determines for itself what classes of persons may inherit property owned by citizens in the State at the time of their death. (Post,p. 118.) 4. SLAVES. Issue of slave marriage. Statutory right to Inherit. The right of any issue of a slave marriage to inherit depends solely upon statute, since before emancipation no right of inheritance could flow from such a union. (Post, p. 119.) Case cited and approved: Jones v. Jones, 234 U. S., 619. 5. SLAVES. Slave marriage. Validation. Louisiana law. Statute. Under act of 1868 of the State of Louisiana (Act No. 210 of 1868), providing for the validation of slave marriages, such a validation might be effected by a declaration of marriage before a notary public, while the courts of that State adopted another rule that such marriages' might be validated by mere cohabitation as man and wife after emancipation, although there is no decision that a mere meeting of the- parties thereafter, without resuming the relationship of marriage, effects a validation. (Post, p. 119.) Cases cited and distinguished: Girod v. Lewis, 6 Martin O. S. (La.), 559; Pierre v. Fontenette, 25 La. Ann, 617; Succession of Pierce, 30 La. Ann., 1168; Ross v. Ross, 34 La. Ann., 860; Succession of William Thomas, 1 Ct. App., 124; Johnson Heirs v. Raphael, 117 La., 967; Succession of Walker, 121 La., 865. 6. SLAVES. Slave marriage. Validation under foreign law. Comity. Certainty of law. Where it is urg,ed that the issue of a slave marriage is legitimate, on account of the validation of the marriage under the laws of a foreign State, to enable such issue to inherit property here, there must be some clear and convincing law of the foreign State, either by statute or court decision, to warrant the court in declaring legitimacy. (Post, p. 124.) 7. SLAVES. Validity of slave marriage. Statute. Under Acts 1865-66, ch. 40, providing that persons of color have the right to make and enforce contracts, sue and be sued, be parties and give evidence, to inherit, and to have the benefit of all laws' and proceedings for the security of person and estate, and under Shannon’s Code, sec. 4179, providing that all free persons of color who were living together as husband and wife in this State while in a state of slavery are man and wife, and their children legitimately entitled to an inheritance in any property of such parents to as full an extent as the children of white citizens, the issue of a slave marriage, contracted and terminated before emancipation in Louisiana, the parties to which never lived together in this State, was not legitimized to inherit from the father, a citizen here at the time of his death. {Post, p. 124.) Cases cited and approved: Shepherd v. Carlin, 99 Tenn., 64; Carver v. Maxwell, 110 Tenn., 75; Jones v. Jones, 284 U. S., 616. Code cited and construed: Sec. 4179 (S.). 8. SLAVES. Slave marriage. Validation. Statutes. “Living together.” tinder Acts 1865-66, ch. 40, as amended by Acts 1887, ch. 151, Shannon’s Code, sec. 4183, malting the Code provision that all free persons of color living together in this State as husband and wife while in a state of slavery are man and wife, and their children legitimate and entitled to inherit, applicable to persons of color “living together” as man and wife in other States, who have moved to this State, the issue of a slave marriage, contracted and terminated previous to emancipation in the State of Louisiana, the parties never thereafter having moved to this State, was not legitimized to inherit from the father, dying a citizen of this State, where the father, who had been a body servant of a steamboat captain, had visited his slave wife in New Orleans only occasionally, when his master’s boat was in port there, since the words “living together” imply a habitat or place of domicile, where both parties reside or have their home. {Post, p. 125.) Acts cited and construed: Acts 1887, ch. 161. Code cited and construed: Secs. 4179, 4180, 4182, 4183. . 9. CONSTITUTIONAL LAW. Equal protection of law. Slave marriage. Legitimacy of issue. The court was not forbidden by Const. ÍJ. S. Amend. 14, to hold that, for purposes of- inheritance, the issue of a slave marriage contracted in Louisiana and there terminated before emancipation, was illegitimate. {Post, p. 128.) Cases cited and approved: Sneed v. Ewing, 5 J. J.-Marsh. (Ky.), 460; Hall v. U. S., 92 U. S., 27; Jones v. Jones, 234 U. S., 619. 132 Tenn.8 10. CIVIL RIGHTS. Rights protected. Inheritance. Issue of slave marriage. Legitimacy. The federal Civil Rights Act March 1, 1875, ch. 114, 18 fitat. 335 (U. S. Comp. St. 1913, sec. 3926) does not' forbid the Tennessee courts to hold that, for inheritance purposes, the issue of a slave marriage, contracted in Louisiana and terminated there before emancipation, was illegitimate. (Post, p. 128.)
132 Tenn. 131Tate v. State ex rel. Raine (1915)
1. CONTEMPT. Publications relating to pending litigation. Power of court. It is the inherent right and power of courts to punish for contempt publishers of newspapers who, pending the trial of a case print matter for public circulation which is calculated to impede, embarrass, or affect the orderly trial and disposition of . the case being heard. (Post, p. 136.) Cases cited and approved: Shaller v. Garrett, 130 Tenn., 473; Murrell v. Rich, 131 Tenn., 378; State v. Galloway, 45 Tenn., 326; Scott v. State, 109 Tenn., 390; State v. Morrill, 16 Ark., 384; Cartwright’s Case, 114 Mass., 230; Tinsley v. Anderson, 171 U. S., 101. Cases cited and distinguished: Regine v. Wilkinson, 41 U. C. Q. B„ 47; Rex v. Parke, 2 K. B., 432; In re Shortridge, 99 Cal., 526; Patterson v. Colo., etc. Attorney-General, 205 TJ. S., 454; Globe Newspaper Co v. Commonwealth, 188 Mass., 449; Graham v. Williamson, 128 Tenn., 721. Code cited and construed: Sec. 5918 (S.) 2. CONTEMPT. Publications relating to pending litigation. Power of court. Statute. Under Shannon’s Code, sec. 5918, regulating the power of the courts to punish for contempts, where, during the pendency of a widely followed will case, the defendant’s newspaper published a scare-head article, relating to the withholding from evidence by the court, after the jury had retired, of affidavits by a subscribing witness to the will, which article .suggested that such subscribing witness had gone over to the contestants, which must have come to the knowledge of the jury, and so was calculated to destroy the effect of his previous testimony favoring the will, such publication was within the statutory power of the court to punish as a contempt. (Post, p. 140.) Code cited and construed: Sec. 5918 (S.). 3. CONTEMPT. Publications relating to pending litigation. Power of court. Violation of order. The power of the court .to punish for contempt one publishing, during the pendency of litigation, matter tending to hinder or' embarrass the couit in the discharge of its functions is not dependent upon any preliminary order forbidding such publication being served by the court upon the publisher, since one violating the law becomes amenable to punishment irrespective of previous warning. (Post, p. 143.) Cases cited and approved: Ex parte Poster, 44 Tex. Cr. R., 423; In re Shortridge, 99 Cal., 526. Case cited and distinguished: Patterson v. Colorado, 205 U. S., 454.
132 Tenn. 147Smith v. Mercantile Bank (1915)
BANKS AND BANKING. Representation of bank by president, individual fraud of officer. Notice to bank. Where the president of a bank used his mother-in-law’s notes, deposited with him for collection, as security for a loan, which he, as president and acting for the hank, made to himself on his own note, he alone acting in the transaction, notice of the character of the notes as a trust deposit was imputed to the bank, since, although where an agent acts in fraud of his principal such agent’s notice of the character of the transaction will not be imputed to the principal, nevertheless where such agent, as in the instant case, is the sole representative of the principal in the transaction, the principal is chargeable with notice; there being no room under the facts for the presumption that the agent dealing with his principal on his own account will not communicate his knowledge when it is to his interest to conceal it. Cases cited and approved: Wood v. Green, 131 Tenn., 583; Provident, etc., Assn. Society v. Edmonds, :95 Tenn., 53; Brookhouse v. Union Pub. Co., 2 L. R. A. (N. S.), 993; Le Due v. Moore, 111 N. C., 516; Lilly v. Hamilton Bank, 29 L. R. A. (N. S.), 568; First Nat. Bank v. Blake (C. C.), 60 Fed., 78.
132 Tenn. 152Pemiscot County Bank v. Central-State Nat. Bank (1915)
1. BANKS AND BANKING. “Cashier.” Authority. A “cashier” of a bank is its chief executive officer, and as such is held out by the institution as having authority to act in accordance with the usage and practice obtaining in the conduct of the business by banking institutions, and, so acting, he will bind the bank in favor of third persons who possess no knowledge to the contrary, or as to limitations on his power. (Post, p. 156.) Cases cited and approved: Northern Bank v. Johnson, 45 Tenn., 88; Water Co. v. Bank, 123 Tenn., 364. 2. BANKS AND BANKING. Cashier. Authority to issue drafts. Though a bank cashier has power to issue and sign drafts drawn on funds of his bank on deposit with a correspondent bank, he has no implied power to draw such drafts in his own favor, or in favor of a creditor in payment of his own debt, and the acceptor in such case is charged with notice. (Post, p. 156.) Cases cited and approved : Campbell v. Manufacturers’ Nat. Bank, 67 N. J. Law, 308; Rochester, etc., Turnpike Co. v. Pavious, 164 N. Y., 281; Anderson v. Kissam, 35 Fed., 699; Gale v. Chase Nat. Bank, 104 Fed, 214; St. Charles, etc., Bank v. Edwards, 243 Mo., 553; Home Sav. Bank v. Otterbach, 135 Iowa, 157; Debaca v. Higgins, 143 Pac., 832. Cases cited and distinguished: Tisdale v. Tisdale, 34 Tenn., 596; Goshen Nat. 'Bank v. State, 141 N. Y., 379; Bank of New York v. American, etc., Co., 143 N. Y., 559; Hanover Nat. Bank v. American Bank, etc., Co., 148 N. Y., 612; Hathaway v. Dele-ware Co., 185 N. Y., 368; Lanson v. Beard, 94 Fed., 30. 3. BANKS AND BANKING. Cashier. Issuance of draft. Dual relation. Where a bank cashier, who was also president of a store company, drew a draft on bis bank, signed by himself as president of the company, in payment of a debt due from the company, and then drew a draft to order of the bank holding the store draft for collection, with notice of the dual relation, on the correspondent bank of the cashier’s bank, and the draft was paid, the payees of the two drafts were not put on notice which would render them liable to refund the money to the cashier’s bank on insolvency; the cashier embezzling the money and issuing the drafts without funds. (Post, p. 163.) 4. BANKS AND BANKING. Cashier. Issuance of drafts. Dual relation. A bank cashier is not forbidden by banking custom from drawing a draft in favor of a corporation of which he is president. (Post, p. 164.) Oases cited and approved: Thompson v. Clydesdale Bank, 3 A. C., 282; Ball v. Shepard, 202 N. Y., 247. Cases cited and distinguished; Mining Co. v. Bank, 10 Colo. App., 339; Cheever v. Pittsburg, etc., It. Co., 150 N. Y., 59; Bank v. Butler, 113 Tenn., 574; Orr v. South Amboy, etc., Co., 113 App. Div., 103.
132 Tenn. 169Todtenhausen v. Knox County (1915)
PROM KNOX. Appeal from the Chancery Court of Knox Count), Will D. Weight, Chancellor.
132 Tenn. 180Heiskell v. Knox County (1915)
1. EVIDENCE. Judicial notice. Legislative journals. The court takes judicial notice of the journals of the legislature, showing the steps taken in the enactment of statutes. (Post, p. 183.) Case cited and distinguished: State v. Swiggart, 118 Tenn., 556. Code cited and construed: Sec. 5584 (S.). Constitution cited and construed: Art. 2, secs. 18, 21. 2. PLEADING. Demurrer. Judicial notice. Judicial notice of legislative journals, showing the proper enactment of a statute, may he taken on demurrer to a bill, charging that a statute was not regularly enacted; a demurrer not admitting allegations contrary to facts judicially known to the court. (Post, p. 185.) ■ 3. EVIDENCE. Judicial notice. Legislative journals. Judicial notice will be taken of journals of the legislature before they are published. (Post, p. 186.) 4. STATUTES. Legislative journals. Conclusiveness. Journals of the legislature cannot be impeached even for fraud or mistake, but any errors therein can be corrected only by the legislature. (Post, p. 186.) Cases cited and approved: Cohn v. Kingsley, 5 Idaho, 416; White v. Hinton, 3 Wyo., 753. 5. STATUTES. Enactment. Reading. Const, art. 2, sec. 18, requiring a bill to be read and passed in each house on three separate days, is satisfied, where it is introduced in duplicate in the two houses, and the Senate bill, after passing its third reading and being enrolled, is on the third reading in the house substituted for the house bill and passed. (Post, p. 187.) Case cited and approved: Archibald v. Clark, 112 Tenn., 532. Constitution cited and construed: Art. 2, sec. 18. 6. STATES. Credit. State university. County aid. Priv. Acts 1915, eh. 1, authorizing Knox county to issue bonds and therewith buy lands, title to be. conveyed to the State for the use of the State university, for educational, experimental, and agricultural purposes, does not contravene Const, art. 2, sec. 29, prohibiting a county or municipality, unless authorized by its electors, from giving or loaning its credit to or in aid of any person, company, association, or corporation, or from becoming a stockholder with others in any company, association, or corporation; the mischief sought to be prevented being a business partnership between a municipality or county and individuals or private corporations or associations. (Post, p. 188.) Cases cited and distinguished: Ransom v. Rutherford Co., 123 Tenn., 1; East Tennessee University v. Knoxville, 65 Tenn.,176. Constitution cited and construed: Art. 2, sec. 29. 7. COUNTIES. Purchase by county. Injunction. Bill. The averment of the unverified bill to enjoin a county from buying land that too much is being paid for it, and that complainant believes and alleges that the county is being burdened with $50,000 more than the land is worth, this going as a profit to promoters, is insufficient as an attack on the purchase, authorized by the legislature at the price attacked. (Post, p. 191.)
132 Tenn. 193Bensdorff v. Uihlein (1915)
1. ADVERSE POSSESSION. Requisites.' Inclosure. The inelosure of property is not necessary' to establish adverse possession, where such inclosure is impracticable, but possession of such property may be established by such use and occupation as its nature and character admits. (Post, p. 197.) Cases cited and approved: Pullen v. Hopkins, 69 Tenn., 741; Hicks v. Tredericks, 77 Tenn., 491; Lieberman v. Clark, 114 Tenn., 134; Green v. Coal & Coke Co., 110 Tenn., 36; Sou. Iron, etc., Co. v. Schwoon, 124 Tenn., 176. Cases cited and distinguished: Garrett v. Belmont Land Co., 94 Tenn., 459; Pullen v. Hopkins, 69 Tenn., 741; Hicks v. Tred-erickSj 77 Tenn., 492; West v. Lanier, 28 Tenn., 762; Cass v. Richardson, 42 Tenn., 28; Coal Co. v. Coppinger, 95 Tenn., 526. 2. ADVERSE POSSESSION. Ihclosure. Lot. “Susceptible.” “Possible.” A small triangular lot between two streets and a store, which is principally valuable as a means of access to the store, is not susceptible of inclosure so as to require it to be inclosed in order to support a claim of adverse possession thereto by the storekeeper, since to inclose it would destroy its chief value, and “susceptible,” in that rule, is not synonymous with “possible.” (Post, p. 198.) Case cited and distinguished: Coal Co. v. Coppinger, 95 Tenn., 526. 3. ADVERSE POSSESSION. Character of possession. Notoriety. Where the store owner paved the lot first with brick, and then with granolithic paving, and maintained such pavement during the statutory period, his possession thereof was open and notorious and gives him title. (Post, p. 199.) Case cited and approved: Nichols v. Boston, 98 Mass., 39. 4. ADVERSE POSSESSION. Exclusive possession. Use by public. The fact that the public, with the store owner’s permission, used that pavement as a means of passing from one street to the other, does not prevent his possession from being exclusive, since such use was different in character from that to which he devoted the premises. (Post, p. 200.) Cases cited and approved: Woodruff v. Langford, 115 N. W., 1020; Burrows v. Gallup, 32 Conn., 493; Dodge v. Lavin, 34 R. I., 514. Cases cited and distinguished: Calloway v. Sanford, 36 S. W., 776; Boulo v. Railroad, 55 Ala., 480; Tracy v. Railroad, 39 Conn., 382.
132 Tenn. 203State v. White (1915)
1. INTOXICATING LIQUORS. Offenses. Sentence and punishment. “At the discretion of the court.” “And.” “Or.” Under Acts 1905, ch. 422, sec. 1, making it unlawful to huy for 'another any intoxicating liquors within four miles of any schoolhouse, and the violation thereof a misdemeanor, punishable upon conviction by a fine “and imprisonment for a period of not less than thirty days nor more than six months, at the discretion of the court,” the conjunction “and,” while ordinarily expressing the relation of addition, has the meaning “or,” and the words “at the discretion of the court” give the court a discretion as to whether imprisonment shall he assessed. (.Post, p. 205.) Acts cited and construed: Acts 1905, see. 1. Constitution cited and construed: Art. 6, sec. 14. 2. CONSTITUTIONAL LAW. Statutes. Construction to sustain validity. In cases of doubt, the court will give that construction to an act which will sustain its validity and constitutionality, instead of destroying it, when that can reasonably be done. (Post, p. 206.) 3. JURY. Right to jury. Assessment of punishment. “Court.” In Acts 1905, ch. 422, sec. 1, punishing sales of liquor near a schoolhouse by a fine of not less than $10 or more than $100, at the discretion of the court, the word “court” includes bott court and jury, so that provision for fine for as much as $100 does not violate Const, art. 6, sec. 14, requiring fine of more than $50 to be assessed by jury. (Post, p. 206.) Cases cited and approved: Railroad v. Crider, 91 Tenn., 490; State ex rel. v. Sehlitz Brewing C'o., 104 Tenn., 729. Case cited and distinguished: Morton v. State, 91 Tenn., 439.
132 Tenn. 210Shaw v. Cole Mfg. Co. (1915)
CORPORATIONS. Directors. Nature of relation. Purchase of stock. Directors may purchase stock from stockholders in a corporation, and do not, in making such purchases, occupy a fiduciary relation; hence, where there was no fraud or concealment, the stockholders cannot recover, though they sold their shares at much less than their actual value. Cases cited and approved; Stewart v. Harris, 2 Ann. Gas., 873; Strong v. Repide, 213 U. S., 419; Percival v. Wright, 4 British Ruling Cases, 792; Stewart v. Harris, 69 Kan., 498; Crowell v. Jackson, 53 N. J. Law, 666; Rothchild v. M. & C. R. R. Co., 113 Fed., 476; Gillet v. Bowen, 23 Fed., 626; Walsh v. Goulden, 130 Mich., 531; Board of Com’rs v. Reynolds, 44 Ind., 509; Haarstick v. Fox, 9 Utah, 110; Twin Lick Oil Co. v. Marbury, 91 U. S., 588; Jackson v. Ludeling, 21 Wall., 616. Cases cited and distinguished: Steinfeld v. Nielsen, 12 Ariz., 381; Oliver v. Oliver, 118 Ga., 362; Deaderick v. Wilson, 67 Tenn., 108.
132 Tenn. 217Great Eastern Casualty Co. v. Parsons (1915)
EXCEPTIONS, BILL OF. Insertion of exhibits. Authentication. Papers identified and made exhibits to the respective depositions by the notary public taking them, need not be identified or authenticated by a chancellor or trial judge in order to their incorporation into a bill of exceptions, as this is sufficiently done by the identifying signature of the notary public incorporating them as part of the deposition. Case cited and approved: Southern Ins. Co. v. Anderson, 130 Tenn., 482.
132 Tenn. 219State ex rel. Overall v. Kirk (1915)
BASTARDS. Proceedings. Jurisdiction of justice. Shannon’s Code, sec. 7332, provides that any justice of the peace upon his own knowledge, or information made to him, that any single woman within his county is delivered of a living child, may cause such woman to be brought before him for examination touching the father. Sections 7333 and 7334, respectively, provide means for ascertaining the name of and summoning the putative father, while section 7344 recites that the proceeding is to relieve the county of the support of the child. Section 7347 declares that the county court shall make no provision for a bastard, except when likely to become a county charge. The mother of an illegitimate child removed from one county to another shortly after its birth. Held, that a justice of the county to which she removed had jurisdiction of the proceeding to compel the putative father to support the child. Case cited and approved: Edmonds v. State, 24 Tenn., 95. Case cited and distinguished: Duffies v. Stake, 7 Wis., 572.
132 Tenn. 225Davis v. Solari (1915)
1. TENANCY IN COMMON. Purchase by tenant in common. Effect. A tenant in common cannot, as a general rule, purchase the common property at a tax or foreclosure sale, or purchase an outstanding title, except for the benefit of all the tenants. (Post, p. 227.) Cases cited and approved: Tisdale v. Tisdale, 34 Tenn., 596; Williams v. Gideon, 54 Tenn., 617; Sharp v. Williams, 1 Sh. Tenn. Cas., 76; Saunders v. Woolman '& Co., 75 Tenn., 300; Harrison v. Winston, 2 Tenn. Ch., 544; Watson v. Ryan, 3 Tenn. Ch., 40. Cases cited and disapproved: King v. Rowan, 57 Tenn., 675; Keele v. Cunningham, 49 Tenn., 288. 2. PARTITION. Order of sale. Purchase by tenant in common. Validity. ■ Under Shannon’s Code, sections 5010, 5025, 5040, 5042, 5051, 5052, 5915, authorizing partition and the settlement by decree of the rights of the parties, and providing that a confirmation of sale divests title, a tenant in common filing a petition to sell for partition may purchase the property at a sale ordered by the court, in the absence of any fraud. (Post, p. 227.) Cases cited and approved: Collins v. Smith, 38 Tenn., 251; Tynes v. Grimstead, 1 Tenn. Ch., 510; Blackmore v. Shelby, 27 Tenn., 439; Elrod v. Lancaster, 39 Tenn., 571; Ex parte Crump, 84 Tenn., 732; Whitely v. Whitely, 117 Md., 538; Melcher v. N. O. & N. E. R. Co., 134 La., 951; Credle v. Gaugham, 152 N. C., 18; Conner v. McCoy, 83 S. C., 168; Peck v. Lockridge, 97 Mo., 549; Rogers v. Rogers, 42 S. W., 70. Cases cited and distinguished: Thompson v. Frew, 107 Ill., 478; Bayhi v. Bayhi, 35 La. Ann., 527; Porter v. Depeyster, 18 La., 351; Hopper v. Hopper, 79 Md., 400; Carpenter v. Carpenter, 131 N. Y., 101; English v. Monypeny, 6 Ohio Cir. Ct. R., 554. Code cited and construed: Sec. 5010 (S.).
132 Tenn. 235Laue v. Grand Fraternity (1915)
1. INSURANCE. Mutual benefit insurance. Forfeiture. Residence in prohibited territory. “Residing.” The constitution of a fraternal society by which a member agreed in his application to be bound provided that no benefit certificate should be granted to any one residing outside that part of the North American continent between the northern boundary of Mexico and the fifty-fifth parallel of north latitude, and that, if a member should remove from such territory, he should forfeit all right to any disability or death benefit. A member who had long resided in Memphis, where his wife and children continuously resided, was in Panama from October to December, 1908, and again from February to June, 1910, returning to his home in Memphis at the expiration of each of such periods. Eekl that, construing the constitution strictly against the insurer, and construing the provisions with regard to residence in, and removal from, the specified territory in pari materia, the policy was not forfeited by the member’s temporary sojourn in Panama; as the word “residing” referred to. the member’s domicile, and implied a legal residence, and not a mere transitory existence in the prohibited territory, and the prohibited' removal referred, not to a mere removal of the member’s person, but to a removal of his residence. {Post, p. 243.) Cases cited and approved: Stratton v. Brigham, 34 Tenn., 420; Kellar v. Baird, 52 Tenn., 39; Hascall v. Hafford, 107 Tenn., 355; Fickle v. Fickle, 13 Tenn., 203. Cases cited and distinguished: Keelin v. Graves, 129 Tenn., 103; Brown v. Beckwith, 58 W. Va., 140; Springer v. Lewis, 22 Pa., 191; TJrquhart v. Smith, 5 Kan., 447; Winslow v. Benedict, 70 Ill., 120. Constitution cited and construed; Art. 9, sec. 2; Art. 10, sec. 3. 2. INSURANCE. Construction of contract. Construing against insurer. Where words are so used in a contract of insurance that their meaning is ambiguous or susceptible of two interpretations differing in import, that interpretation which will sustain the claim of the policy holder and cover the loss should he adopted. {Post, p. 247.) Cases cited and approved: Life Ins. C'o. v. Galbraith, 115 Tenn., 471-483; Thompson v. Phenix, etc., Co., 136 U. S., 287; National Bank v. Ins. Co., 95 U. S„ 673; McNutt v. Ta. Fire Ins. Co. (Ch. App.), 45 S. W., 61; Conn. Fire Ins. Co. v. Geary, 60 Neb., 338. Cases cited and distinguished: McCarthy v. Catholic Knights, 102 Tenn., 345; Bates v. Detroit Mut. Ben. Ass’n, 51 Mich., 587; Jackson v. N. W. M. R. Ass’n, 78 Wis., 468; Southern Life Ins. Co. v. Booker, 56 Tenn., 606; Ins. Co. v. Morris, 71 Tenn., 101; Perkins Oil Co. v. Bberhart, 107 Tenn., 409. 3. INSURANCE. Mutual benefit insurance. Suspension or expulsion. The constitution of a fraternal society provided that the fraternity should be composed of a supreme governing council, and a board of directors, etc., and that the governing council should have power to try any member and expel or otherwise punish him. The by-laws made all the death and disability payments expressly subject to an agreement not to remove from the part of the North American continent between the northern boundary of Mexico and,the fifty-fifth parallel of north latitude, and authorized the directors to cancel any benefit certificate for the breach of such covenant. Held, that neither the president of the fraternity nor its grand secretary had any authority to suspend a member or discontinue the acceptance of his dues because of his removal from the specified territory, and a letter written a local lodge by the secretary instructing it not to receive his dues did not suspend him. (Post, p. 249.) Cases cited and approved: Murray v. Supreme Hive, L. O. M„ 112 Tenn., 665; Franta, etc., v. Union, 164 Mo., 304; Mazurkie-wicz v. Soc., 127 Mich., 145; Pepin v. Société, 24 R. -I., 550; Baxter v. McDonnell, 155 N. Y„ 83. Constitution cited and construed: Art. 1, secs. 2 and 3; Art. 2, secs. 1 and 2. 4. INSURANCE. Mutual benefit insurance. Suspension or expulsion. Tender of dues. Where a fratérnal society wrongfully declared a benefit certificate forfeited, and refused to accept dues thereunder, the tender of such dues as they became due until the death of the member kept his rights alive. (Post, p. 251.) • Cases cited and approved: Day v. Conn. Gen. Life Ins. Co., 45 Conn., 480; True v. Bankers’ Life Ass’n, 78 Wis., 287. 5. INSURANCE. Mutual benefit insurance. Amount of recovery.. Deducting unpaid dues. Where a fraternal society wrongfully declared a benefit certificate forfeited and refused to accept duési thereunder, but it was kept alive by the tender of dues, the amount of the dues which the society should have received should he deducted from the amount recoverable under the certificate. (Post, p. 262.)
132 Tenn. 254Drewery v. Nelms (1915)
1. ADVERSE POSSESSION. Elements. Presumptions. The adverse nature of possession must be shown by clear and positive proof, and not by inference; every presumption being in favor of a possession in subordination to the title of the true owner. (Post, p. 261.) 2. TENANCY IN COMMON. Hostile character of possession. Presumptions. In adverse possession, the possession of one tenant in common is the possession of all, and his entry and holding will continue as the possession of all, and to overturn this entirety of possession, there must be some plain demonstration that he has repudiated the rights of his cotenants. (Post, p. 261.) 3. TENANCY IN COMMON. Adverse possession. Hostile character. The ouster and exclusion of cotenants sufficient to establish adverse possession may be effected by taking possession and giving actual notice of a claim of sole ownership, or by other positive and unequivocal acts which must, by their nature, put the other cotenants on notice that they are excluded from possession; mere silent, sole occupation by one of the entire property though claiming the whole estate and appropriating all the rents without notice to his cotenants being insufficient. (Post, p. 262.) 4. TENANCY IN COMMON. Adverse possession. Presumption of grant. A presumption of title may arise by an exclusive and uninterrupted possession by one tenant in common for twenty or more years, claiming the same as his own, without any recognition of his cotenants or claim upon their part, but such presumption arises independent of the statute of limitations, and may be rebutted by proof of disability on the part of the cotenants. (Post, p. 262.) Cases cited and approved: Marr v. Gilliam, 41 Tenn., 488; Hubbard v. Wood, 33 Tenn., 279; McClung v. Ross, 5 Wheat., 116; McCorry v. King, 22 Tenn., 267; Brock v. Burchett, 32 Tenn., 27. 5. TENANCY IN COMMON. Adverse possession. Evidence. In ejectment, wherein plaintiffs relied upon the adverse possession of their remote grantor, evidence that such grantor had continued to reside on the land after the death of his mother intestate; that he occupied free of rent except to keep up the improvements and pay the taxes; that he recognized that his holding was only for life, and only occasionally claimed that he owned the entire land — was not such clear and unequivocal proof as was necessarw to show a holding to the exclusion of the cotenants to their knowledge. (Post, p. 263.) 6. HUSBAND AND WIFE. Adverse possession. Pleading cover-ture. In ejectment, plaintiffs relied upon the presumption of a grant by lapse of time to their remote grantor, who had lived upon the premises, which were oiiginally owned by his mother, for more than twenty years after her death. Defendant claimed under a deed from a sister of such grantor, purporting to cover her share as heir. of her mother. This sister was married when plaintiff’s grantor entered into possession. Held, that her cov-erture could be shown in rebuttal of the presumption of a grant from the cotenants of plaintiff’s grantor, although not pleaded in connection with the statute of limitations or otherwise. (Post, p. 263.) Case cited and approved: Iron & Coal Co. v. Schwoon, 124 Tenn., 216. Code cited and construed: Sec. 4980 (S.).
132 Tenn. 265Memphis & Arkansas River Packet Co. v. Agnew (1915)
1. CORPORATIONS. Powers of foreign corporations. Actions. Accounting. That a corporation has failed to comply with the law requiring every foreign corporation to file a certified copy of its charter with the secretary of State, and is therefore doing business in violation of law, does not prevent it from requiring its officers and employees to account for secret profits made with the company’s money and credit. (Post, p. 270.) Cases cited and approved: Penn. Mutual, etc., Co. v. Bradley, 21 N. Y. Supp., 876; U. S. Express Co. v. Lucas, 36 Ind., 361; Walker v. Kremer, 29 Fed. Cas., No. 17,076; De Lavol Separator Co. v. Walworth, 13 Brit. Columbia, 295; Holleman v. Bradley Fertilizer Co., 106 Ga., 156; Moss Mercantile Co. v. First Nat. Bank, 47 Or., 361; Bendet v. Ellis, 120 Tenn., 277; Brooks v. Martin, 2 Wall., 70; Pointer v. Smith, 54 Tenn., 737. Cases cited and distinguished: Thomas Mfg. Co. v. Knapp, 101 Minn., 432; Benefit Society v. Lesser, 105 Mich., 716; State v. O’Brien, 94 Tenn., 79; Insurance Co. v. Kennedy, 96 Tenn., 711. 2. CORPORATIONS. Ultra vires acts. Accounting. The captain of a steamboat dealt in cotton seed and other commodities on commission without the knowledge of his employers, who subsequently brought an action for an accounting for secret profits. EM that, although the transactions upon which the action was based were ultra vires the corporation, they were not malum in se, and profits made thereby with the aid of the company’s name and the use of its employees were recoverable. (Post, p. 272.) Cases cited and approved: Latta v. Kilbourn, 150 U. S., 524; Aas v. Benham, 2 Ch. D., 244; Kellogg, etc., Co. v. Webster Mfg. Co., 140 Wis., 341; Case v. Kelly, 133 U. S„ 21; Scott v. Farmer’s, etc., Bank, 97 Tex., 31; U. S. Express Co. v. Lucas, 136 Ind., 361; Fisk y. Patton, 7 Utah, 409; Hertzler v. Geigley, 196 Pa., 419; Carson City Sav. Bank v. Carson, etc., Co., 90 Mich., 560. Cases cited and distinguished: Goodhue, etc., Co. y. Davis, 81 Minn., 210; Mt. Vernon Bank v. Porter, 52 Mo. App., 248; Nor-denfelt v. Maxim, etc., Co., A. C., 535.
132 Tenn. 277Larkin v. Lightburne (1915)
CURTESY. Wife’s separate estate. Devise. In the Married Woman’s Act (Acts 1869-70, ch. 99), section S of which provided that married women owning a separate estate should have the power to dispose thereof by deed or will the same as single women, and section 6 of which provided that the act, except section 3, should embrace only such married women as were living apart from their husbands or whose husbands were insane, provided all married women owning any land of any sort or description should have full power to dispose thereof by will as fully as if they were single, but such testamentary disposition should not be construed to defeat any husband’s tenancy by curtesy therein, the exception of separate estates from the first part of section 6 does not apply to the latter part of the section, concerning wills, and the husband takes a life estate by curtesy in the separate estate of his wife, the settlement of which did not exclude his curtesy and which was devised to her by others. Acts cited and construed: Acts 1861-52, ch. 108, sec. 4; Acts 1869-70, ch. 99. Cases cited and approved: Johnson v. Sharp, 44 Tenn., 45; Mol-loy v. Clapp, 70 Tenn., 586; Lightfoot v. Bass, 76 Tenn., 350; Vick v. Gower, 92 Tenn.,' 394; Hughey v. 'Warner, 124 Tenn., 725; Williford v. Phelan, 120 Tenn., 589. Case cited and distinguished: Perry v. Gill, 21 Tenn., 218. Code cited and construed: Sec. 3901 (S.).
132 Tenn. 287Essenkay Co. v. Essenkay Sales Co. (1915)
1. EQUITY. Cross-bill. Service. Persons on whom service may be made. Where, in a suit, by a nonresident, defendant files a cross-bill presenting matters not available in an answer, service of process thereon may be had on complainant’s solicitor of record. (Post, pp. 288-292.) Cases cited and approved: Henderson v. Campbell, 13 W. R., 704; Hitner v. Suekley, 2 Wash. C. C., 465; Dunn v. Clarke, S Pet., 1; Schenck v. Peay, 1 Woolworth, 175; Segee v. Thomas, Fed Cas., No. 12,633; Lowenstein- v. Glidewell, Fed. Cas., No. 8575; Grellin v. Ely (C. G'.), 13 Fed., 420; Pacific R. v. Mo. Pac. Ry. Co. (C. C.), 3 Fed., 772; Gregory v. Pike, 79 Fed., 520; Am. Graphophone Co. v. Smith, 1 App. D. C., 563; Eckert v. Bauert, 4 Wash. C*. C., 370; Abraham v. North German Ins. Co. (C. C.), 37 Fed., 731; Love v. Hall, 11 Tenn., 408. Cases cited-and distinguished: Hope v. Hope, 4 De G., M. & G., 328; Ward v. Seabring, 4 Wash. C. C’., 472. 2. EQUITY. Cross-bill. Application for service. Grounds. A defendant, filing a cross-bill against a nonresident complainant, is entitled to an order for service of process on complainant’s solicitor of record, though in making application defendant erroneously relies on Acts 1887, ch. 226, inapplicable to the case. (Post, p. 292.) Acts cited and construed: Acts 1887, ch. 226. Cases cited and approved: Life Ins. Co. v. Spratley, 99 Tenn., 322; Guthrie v. Indemnity Association, 101 Tenn., 643; Thach v. Continental Travelers’ Mutual Accident Association, 114 Tenn., 271. 3. EQUITY. Pleading. Issues. Service of process. The court refusing to make an' order for service of process on nonresident complainant on defendant filing a cross-bill, may not proceed to dispose of the matters -involved in the cross-hill setting forth matters which could not properly appear in an answer. (Post, pp. 292, 293.) Case cited and approved: Moore v. Tillman, 106 Tenn., 361.
132 Tenn. 294Perkins v. Brown (1915)
1. DAMAGES. Property. Measure. The owner of a vehicle held for use may recover for his loss of use by reason of a tortious injury while being repaired, in addition to the cost of repairs. (Post. pp. 296, 297.) Cases cited and approved: Brown v. Southbury, 53 Conn., 212; Johnson v. Holyoke, 105 Mass., 80; Mizner v. Frazier, 40 Mich., 592; The Atlas, 93 ti. S., 302. 2. DAMAGES. Property. Compensation. Compensation for injury being the rule, the owner of an automobile used for pleasure may recover substantial damages for loss of use while it is being repaired after a tortious injury by defendant. (Post, p. 297.) Cases cited and approved: Cook v. Packard Motor Car Co., 88 Conn., 590; Murphy v. New York City Ry., 58.Mise. Rep., 237; Universal Taximeter Cab Co. v. Blumenthal; 143 N. Y. Supp., 1056. 3. DAMAGES. Injuries to property. Measure. • That the owner of a pleasure motor car did not hire another car'while it was being repaired after a tortious injury by defendant does not prevent him from recovering damages for loss of use thereof. (Post, pp. 297, 298.) 4. DAMAGES. Property. Measure. The owner of a motor car, held for pleasure driving and used only a small portion of each day, cannot, where the car was injured through the fault of defendant, recover as damages for the loss of the use of the machine the full daily rental value of machines in that vicinity. (Post, pp. 298, 299.) 5. DAMAGES. Property. Loss of use. Where a motor car was injured through -defendant’s fault, the owner cannot, as damages for loss of use, recover the rental from week to week for a car, but should recover only the aggregate rental of a machine for a similar time. {Post, pp. 298, 299.) Case cited and approved: Trout Aiito., etc., Co. v. People’s, etc., Co., 168 Ill. App., 66. 6. APPEAL AND ERROR. Remand. Discretion of court. 'A. reviewing court may, in its discretion, qualify the order of remand so as to restrict the scope of the new trial ordered. {Post, pp. 299-302.) 7. APPEAL AND ERROR. Remand. Order of remand. Where the only question at issue was the measure of damages, the appellate court, on reversal of a judgment for plaintiff, will qualify the order of remand so as to determine only the matter of damages. {Post, pp. 299-302.) Cases cited and approved: Baxter v. Nurse, 6 M. & G., 935; Stroud v. Stroud, 7 M. & G., 417; Smith v. Whittlesey, 79 Conn., 189; Simmons v. Pish, 210 Mass., 563; Winn v. Columbian Ins. Co., 12 Pick. (Mass.), 279. Cases cited and distinguished: Rex v. Mawbey, 6 T. R., 619; Bernasconi v. Parebrother, 3 B. & Ad., 372; Hutchinson v. Piper, 4 Taunt., 555.
132 Tenn. 303State ex rel. Heiskell v. Fidelity & Deposit Co. (1915)
FROM SHELBY. Appeal from the Chancery Court of Shelby County. —T. H. Heiskell, Chancellor.
132 Tenn. 323Citizens' Trust Co. v. McDougald (1915)
1. BILLS AND NOTES. Consideration. Antecedent debt. Although under the Negotiable Instruments Law (Laws 1899, ch. 94) a pre-existing debt may stand for value, yet, where the maker of a note made it payable directly to plaintiff bank, which paid him nothing therefor, he being induced to make the note by the bank’s cashier, who was practically the owner of an insolvent corporation which owed the bank money, to reduce which debt the note was applied, there could be no recovery by the bank on such note, since a pre-existing debt is not consideration for a note, where the debt was worthless and the obligation of a third party. (Post; p. 324.) Cases cited and approved: Williams v. Nichols, 10 Gray (Mass.), 83; Gilbert v. Brown, 128 Ky., 703; Didlake v. Robb, 1 Woods, 680; Paxson v. Nields, 137 Pa., 385; Schroeder v. Pink, 60 Md., 436; Smith v. Paris, 53 Mo. 274; Banking Co. v. Hall, 119 Tenn., 548. 2. BILLS AND NOTES. Pleading. Amendment. Allowance. In a bank’s suit on a note defended on tie ground of want of consideration, as it originated in fraud practiced by the bank’s cashier upon the defendant maker, where the affidavit for-the filing of an amended answer, differing from the original answer merely in the evidentiary facts stated as proof of want of consideration, justified the mistake in the original answer on the ground that counsel representing the defendant, a nonresident, ' had acted on certain- memoranda found among, the .papers of defendant’s first attorney, who had died, such affidavit was a sufficient .reason for the allowance of the amendment. .(Post, p. 326.) . Case cited and approved: Hardwick v. American Can. Co., 115 Tenn., 393. 3. BILLS AND NOTES. Pleading. Amendments. Allowance. In a bank's action on a note, -where the bank was familiar with the fraudulent transactions of its cashier in which the note originated, and the defendant was completely in the dark as to the details, the allowance of an amended answer differing from the original answer merely in the evidentiary facts which it stated as proof of lack of consideration for the note was proper. (Post, p. 326.)
132 Tenn. 327Parker v. State (1915)
1. WITNESSES. Conduct of trial. Cross-examination by trial judge. In a criminal prosecution the action of the court in not permitting counsel for the State to cross-examine defendant and in undertaking to do so himself, framing exceedingly sharp questions, and, after defendant’s own counsel had had defendant for a short time, in resuming cross-examination which totaled one-third of the defendant’s personal testimony, was reversible error. {Post, p. 328.) 2. WITNESSES. Impeachment of own witness. Character. In a criminal prosecution, where the defendant was called in rebuttal for the State, the action of the assistant district attorney-general in asking him whether his whole life for the past fifteen years had been so crooked, devious, and so utterly devoid of morality or honesty that his reputation for dishonesty was so well known that the county court, without even considering his petition, refused to give him a certificate of good character, notwithstanding the fact that defendant’s general character had not been put in issue, was a denial of a fair trial and reversible error. {Post, p. 329.)
132 Tenn. 331Kinnane v. State (1915)
iNTOXICATING LIQUORS. Criminal offenses. Place of sale. Acts 1899, ch-. 161, provides that any person selling intoxicating liquors without a license shall he guilty of a misdemeanor. Shannon’s Code, sec. 6783, provides that the article as to selling liquors is to he construed liberally to prevent evasions and effectuate the objects had in view. Held!, that where a person went upon a steamboat on the Mississippi river for the purpose of purchasing, and was received on the boat by those operating it for the purpose of selling, him, intoxicating liquors, and the boat thereupon ran into the river across the State line, and after a sale of liquor was made by its barkeeper looped back to the Tennessee shore and. landed the purchaser near the point from which he started, the barkeeper was guilty of a violation of the statute. Acts cited and construed: Acts 1899, ch. 161. Cases cited and approved: Duff v. Commonwealth, 153 Ky., 657; Kinnane v. State, 106 Ark., 280; Lemore v. Commonwealth, 127 Ky., 480. Cases cited and distinguished: Adair v. Commonwealth, 89 S. W., 1132; Merritt v. Commonwealth, 92 S. W., 611; Foppiano v. Speed, 199 V. S., 501.
132 Tenn. 339Parlow v. Turner (1915)
1. STATUTES. Title. Sufficiency. The title of Acts 1913, ch. 26, entitled “An act to remove the disabilities of coverture from married women and to repeal all acts and parts of acts in conflict with the provisions of this Act,” is sufficient, within Const., article 2, section 17, declaring that no hill shall embrace more than one subject, to be expressed in the title, to justify provisions in the body of the act abrogating the common-law disabilities of married women, and declaring that every married woman shall have the same capacity to acquire, control, enjoy, and dispose of all property, to make any contract in reference to it, and to bind herself personally, as if unmarried. {Post, p. 342.) Acts cited and construed: Acts 1913, ch. 26. Constitution cited and construed: Art. 2, sec. 17. 2. CONSTITUTIONAL LAW. Husband and wife. Rights of husband. Statutory provisions. Acts 1913, eh. 26, abrogating all common-law disabilities of married women, and providing, that every woman, now married or hereafter to he married, shall have the same capacity to acquire, enjoy, and dispose of all property and to make any contract in reference thereto as if she were not married, is not invalid as destroying any vested rights of a husband in a marriage occurring prior to the passage of the act, and his wife may recover the rent of land purchased by her prior to the marriage. (Post, p. 342.) Acts cited and construed: Acts 1879, ch. 141; Acts 1849-50, ch. 36. ■Cases cited and approved: Lucas v. Rickerich, 69 Tenn., 726; Taylor v, Taylor, 80 Tenn., 490; Baker’s Ex’rs. v. Kilgore, 145 U. S., 487; Abies v. Abies, 86 Tenn., 333. Cases cited and distinguished: Guión v. Anderson, 27 Tenn., 325. Code cited and construed: Sec. 4234 (S.).
132 Tenn. 349Vowell v. State (1915)
1. CRIMINAL LAW. Felony. Presence of accused during trial. In a felony case accused must be present during bis trial in tbe circuit court, criminal court, or other court of original jurisdiction. (Post, p. 352.) Acts cited and construed: Acts 1901, cb. 102. . Cases cited and approved: Percer v. State, 118 Tenn., 765; Hopt y. Utah, 110 U. S., 574; Lewis v. United States, 146 U. S., 370. 2. CRIMINAL LAW. Appeal. Presence of accused during hearing on appeal. “In all criminal prosecutions.” In a felony case accused, confined in the penitentiary under Acts 1901, ch. 102, pending his appeal, or at large on bond, need not be present in the supreme court when hearing or deciding the case, notwithstanding Const., art. 1, sec. 9, providing that in all criminal prosecutions accused shall have the right to be heard by himself and his counsel, which applies only to the trial court; the phrase “in all criminal prosecutions” applying only to a trial prosecuted by the State, which does not include a review on appeal or writ of error, which is a proceeding brought by accused himself. (Post, p. 353.) Case cited and approved: King v. Speake, 3 Salk., 358. Cases cited and distinguished: Phleming v. State, Minor (1 Ala.), 42; State v. Overton, 77 N. C., 485; State v. David, 14 S. C., 428; Donnelly v. State, 26 N. J. Law, 463; Pielden. v. People, 128 Ill., 595; Schwab v. Berggren, 143 U. S., 442. Code cited and construed: Sec. 6336 (S.). Constitution cited and construed: Art. 1, secs. 9, 13. 3. CRIMINAL LAW. Appeal. Procedure. Rights of accused. Const., art. 1, sec. 17, guaranteeing due course of law, gives to accused the right to present his case to the supreme court on appeal or writ of error either in person or by counsel, and the court will seldom deny accused’s request for permission to he personally present and to address the court with his counsel, but the court will not permit him to be without counsel, and will appoint one to appear for him, though accused appears and argues the case in person. {Post, p. 361.) Code cited and construed: Sec. 7224 (S.). Constitution cited and construed: Art. 1, sec. 17. 4. CRIMINAL LAW. Judgment on appeal. Presence of accused. Accused appealing from a conviction of a felony must be present when judgment is rendered on appeal, though he has been released on bond, and only under very special circumstances will the court reverse a judgment in a felony case where accused is under bond without requiring his presence in court. (Post, p. 364.) Code cited and construed: Secs. 6331, 6332, 7112 (S.).
132 Tenn. 367Fourth Nat. Bank of Nashville v. Stahlman (1915)
1. BANKS AND BANKING. National banks. Stock purchasing contract. A contract between a national bank and the promoter of a building corporation, whereby the promoter was to purchase from the bank stock subscribed for by it, was not ultra vires of the bank, the stock having been taken by the bank as part of a transaction for the renting of banking quarters. (Post, p. 379.) 2. BANKS AND BANKING. National banks. Powers. Purchase of stock. Under Rev. St. U. S., sec. 5137 (U. S. Comp. St. 1913, sec.' 9674), providing that a national bank may purchase and hold real estate necessary for its immediate accommodation in the transac'tion of its business, and section 5136 (section 9661), providing that such bank may exercise all incidental powers necessary to carry on the business, a national bank may acquire and hold stock in a building corporation as part of a transaction for ' renting desirable banking quarters; good faith being the test whether such investment is legitimate. (Post, p. 380.) Cases cited and approved: California Bank v. Kennedy,' 167 U. S., 362; Mapes v. Scott, 94 Ill., 379; Talbot v. First Nat. Bank, 185 U. S., 172; Portland Nat. Bank v. Scott, 20 Or., 421; Wingert v. First Nat. Bank, 175 Fed., 739; Id., 223 U. S„ 670; Weeks v. Int. Trust Co., 60 C. C. A., 236; Farmers’ Dep. Nat. Bank v. West Pa. Fuel Co., 215 Pa., 115; Union Nat. Bank v. Matthews, 98 U. S., 621; Marble Co. v. Harvey, 92 Tenn., 115; First Nat. Bank of Concord v. Hawkins, 174 U. S., 564; First Nat. Bank v. Converse, 200 U. S., 425; Merchants’ Nat. Bank v. Wehrmann, 202 U. S., 295. 3. BANKS AND BANKING. National banks. Power to purchase stock. While it is unlawful for a national bank to deal in stocks, it may loan money on shares of other corporations, and in order to collect the debt may purchase the stock, or may acquire it to protect itself against loss in compromising a doubtful liability. (Post', p. 384.) Cases cited and approved: First Nat. Bank v. Exchange Nat. Bank, 92 U. S., 122; California Bank v. Kennedy, 167 U. S., 362; Germania Nat. Bank v. Receiver, 99 U. S., 629; National Bank v. Matthews, 98 U. S., 621. 4. CONTRACTS. Consideration. Mutual promises'. A contract between a national bank and the promoter of a building corporation, whereby the promoter agreed to purchase from the bank building corporation stock held by it, in consideration that the bank would pay its subscription for the stock, was not void as being unilateral; the obligation to sell and buy being mutual. (Post, p. 388.) 5. CORPORATIONS. Stock. Contract for purchase. An agreement between a bank and the promoter of a building corporation, whereby the latter agreed to purchase certain shares of stock owned by the bank, the bank reserving an option to sell the stock at any time to other persons, but providing that the promoter was to have the option to buy such stock at par and accumulated dividends at any time before the bank sold it to others, and providing for thirty days’ notice to the promoter before selling, is an absolute and unconditional agreement to sell, and not a mere option. (Post, p. 388.) 6. CORPORATIONS. Transfer of stock. Unpaid dividends. A contract between a bank and the promoter of a building corporation, whereby the promoter agreed to buy certain guaranteed six per cent, cumulative preferred stock in the building corporation from the bank, and that if any dividends upon such stock remained unpaid at the time of purchase the promoter was to pay the accumulated dividends at the rate of six per cent, per annum, bears interest as upon a loan, and the promoter is liable for guaranteed dividends unpaid by the corporation, although not earned nor declared by it. {Post, p. 390.) 7. ACCOUNT STATED. Omission of item. Where a bank rendered a statement containing separate items of indebtedness in response to a debtor’s request, and the latter thereupon made a tender of the amount stated, that the bank had erroneously omitted a particular item from the statement did not estop it from suing thereon; no one having been prejudiced by the making of such statement. (Post, p. 392.) 8. PLEDGES. Release of securities. Tender. Where a creditor holds securities as collateral for several items of indebtedness, a tender by the debtor which does not include all such items does not operate to release the securities. {Post, p. 393.) 9. BILLS AND NOTES. Release of attorney’s fees. Effect of tender. A tender by a debtor of full payment of a note, constituting one of several items of indebtedness, was sufficient to exonerate him from the payment of attorney’s fees stipulated therein; the note not being disputed. {Post, p. 393.) 10.PLEDGES. Security for loans. Debts secured. “Obligation.” Collateral deposited with a bank to secure a promissory note, written on the blank form furnished by the hank and reciting that such collateral “shall be applicable in like manner to secure the payment of any other obligations of the undersigned, whether past or future, held by the holder of this obligation. All such securities in their hands shall stand as one general continuing security for the whole of such obligations, so that the deficiency on any one shall be made good from the collateral upon the rest” — may be held by the bank to secure the performance of a contract previously executed, whereby the pledgor agreed to purchase certain corporate stock from the bank, such contract constituting an “obligation” within the recitals of the note. (Post, p. 395.) Case cited and approved: Bank v. Wood, 125 Tenn., 16. Cases cited - and distinguished: G-illet v. Bank of America, 160 N. Y., 555; Cocke v. Hoffman, 73 Tenn., 112; Loyd v. Lynchburg Bank, 86 Va., 690; First Nat. Bank of Omaha v. Illinois Trust & Savings Bank (C. C.), 84-Fed., 34; Brown v. James, 80 Neb., 475; Torrance v. Third Nat. Bank of Pittsburg, 210 Fed., 806; Harris v. Bank of Franklin, 77 Md., 423; Hallowell v. Blackstone Nat. Bank, 154 Mass., 359; Norfleet v. Insurance Co., 160 N. C., 329; Milling Co. v. Steverson, 161 N. C., 512; Bank v. Lumber Co. (C. C.), 194 Fed., 732; Wilson v. Carothers (Ky.), 43 S. W., 684; Hanover Nat. Bank v. Brown, 53 S. W., 206; Gillet v. Bank of America, 160 N. Y„ 565. 11. PLEDGES. Security for loans. Application of collateral. Where the language of a note made to a bank by its customer, under which collateral is deposited as security, is unambiguous, and plainly shows that the parties contemplated that such collateral might be held as security for all other legal obligations or liabilities, the contract will be so construed, it being only where the language is ambiguous and the meaning doubtful that its provisions will be limited to a restricted class of obligations presumed to have been in the contemplation of the parties when the contract was made. (Post, p. 410.) 12. PLEDGES. Security for loans. Application of collateral. Where collateral has been deposited with a bank to secure a promissory note, reciting that the collateral shall be applicable in like manner to secure the payment of any other obligations of the undersigned, whether past or future, held by the holder of such obligation, such language will not be construed to mean that another bank, to 'which the holder might transfer the note ■with its collaterals, can hold them as security for other debts which the maker might have created with such other bank, since such other debts would not have been in the contemplation of the parties when the loan was made. (Post, p. 411.) 13. PLEDGES. Application of collateral to other debts. Surety’s right of subrogation. Where collateral has been deposited with a bank to secure a promissory note, reciting that such collateral may be applied to all other obligations of the maker to the bank, a surety or indorser who pays such note will be subrogated to the place of the bank as to such collaterals, which right may not be defeated by the application of the collaterals to any other debts owing by the maker to the bank., (Post, p. 412.) Cases cited and approved: Bank v. Wood, 125 Tenn., 16; Hal-lowell v. Blackstone Nat. Bank, 154 Mass., 369; Wilson v. Carothers (Ky.), 43 S. W., 684; First Nat. Bank of Omaha v. Illinois Trust & Savings Bank (C. C.), 84 Fed., 34; Gillet v. Bank of America, 160 N. Y., 549; Titcomb v. McAllister, 81 Me., 399. Cases cited and distinguished: Richardson v. Washington Bank, 3 Mete. (Mass.), 536; Fall River Nat. Bank v. Slade, 153 Mass., 415.
132 Tenn. 419Liggett & Myers Tobacco Co. v. Cannon (1915)
1. FOOD. Chewing tobacco. Impurities. Manufacturer’s liability to consumer. Tobacco, even chewing tobacco, is not a foodstuff, within the exception of foodstuffs from the rule that ordinarily the manufacturer of an article placed by him on the market for sale, and sold by another, is not liable to the ultimate consumer for injuries from defects or impurities in it; “food” including only what tends to build bodily tissues. (Post, p. 421.) Cases cited and approved: Burkett v. Manufacturing Co., 126 Tenn., 467; Boyd v. Coca Cola Bottling Works, 132 Tenn., 23; Com. v. Pflaum, 236 Pa., 294; State v. Ohmer, 34 Mo. App., 115; Austin v. State, 101 Tenn., 563; Bishop v. Weber, 139 Mass., 4H. Case cited and distinguished: Ketterer v. Armour & Co. (D. C.), 200 Fed., 322. 2. NEGLIGENCE. Liability of manufacturer. Defective article. The manufacturer of chewing tobacco is not liable for injury to the ultimate consumer, a purchaser from a retailer, for injuries from a bug imbedded in a plug; it having no knowledge or notice of its presence and the consequent danger of using the tobacco. (Post, p. 425.) Cases cited and approved: Standard Oil Co. v. Murray, 119 Fed., 572; Salmon v. Libby, 114 Ill. App., 258; McCaffrey v. Mossberg & Co., 23 R. I., 381; Bragdon v. Perkins & Co., 87 Fed., 109; Zieman v. Kieckhefer E. M. Co., 90 Wis., 497; Loop v. Litchfield, 42 N. Y., 351; Huset v. Threshing M. Co., 120 Fed., 865; Burkett v. Manufacturing' Co., 126 Tenn., 467; Cadillac Motor Car Co. v. Johnson, 221 Fed., 801; Lebourdias v. Vitrified Wheel Co., 194 Mass., 341. Case cited and distinguished. Hasbrouek v. Armour & Co., 139 Wis., 357.
132 Tenn. 429Burns v. City of Nashville (1915)
1. COURTS. Appellate jurisdiction. Tennessee supreme court. In view of Acts 1907, ch. 82, creating the court of civil appeals, with appellate jurisdiction of all civil cases coming up from the :law and equity courts, except cases involving constitutional questions or chancery eases involving more than $1,000, etc., an incidental prayer for the recovery of a money judgment in excess of $1,000 will not confer appellate jurisdiction upon the supreme court, when the main purpose of the suit is to obtain some relief other than a money judgment; and the value .of property involved is immaterial in determining jurisdiction, except in those cases wherein a direct money decree is sought as the end or purpose of the litigation. (Post, p. 434.) Cases cited and approved: Chattanooga v. Railroad, 123 Tenn., 497; Morris v. Railroad, 124 Tenn., 524; State ex rel. v. Corum, 123 Tenn., 394. 2. COURTS. Appellate jurisdiction. Tennessee supreme court. Statutes. Acts 1907, ch. 82, creates the court of civil appeals, with appellate jurisdiction of all civil cases coming up from the law and equity courts, except cases involving constitutional questions or chancery cases involving more than $1,000, etc. A taxpayers’ hill in chancery against the city of Nashville, its commissioners, and the city treasurer, officially and individually, and. against the surety on their bonds, charged, among other unlawful acts, wasteful and dishonest management of the city’s financial affairs, sought to restrain the commissioners from exercising certain functions of their offices and from making further contracts for the city, or from paying out any of its funds, prayed that a receiver be appointed to take charge of the finances and property of the city, and asked a reference to determine what amount of the city’s money had been misappropriated, and a decree therefor against such officers and their surety, and, as amended, alleged that the commissioners had unlawfully expended $14,000 for the erection of a new market house, and asked judgment against them for that sum, and made certain contractors, banks, etc., parties defendant, charged with unlawful participation in the misappropriation of the city’s funds, and sought 'a decree against them. The chancellor’s interlocutory orders restraining the commissioners in the expenditure of the city’s funds and appointing a receiver for the city, on petitions for certiorari and supersedeas, were superseded by the presiding judge of the court of civil appeals. Held, that certiorari to annul the order of the court of civil appeals on the ground of its want of jurisdiction would be denied, as the supreme court could not say that any judgment for any sum of money would be rendered against any party on the final hearing,, and could not foretell to which court an appeal would lie after the final decree. {Post, p. 435.) Acts cited and construed: Acts 1907, ch. 82. Case cited and approved: Humphrey v. Godsey, 119 Tenn., 43. S. STATUTES. Construction.. Exceptions. Where a general rule has been established by statute, with exceptions, the court will not curtail the former nor add to the' latter by implication. Exceptions strengthen the force of a general law, and enumerations weaken it as to things not expressed. {Post, %>. 435.) 4. COURTS. Appellate jurisdiction. Test. Jurisdiction on appeal is to be tested by the matter in controversy on appeal, and not by the matters which may have been involved in the lower court. {Post, p. 435.) 5. CERTIORARI. Jurisdiction. Supreme court. Under Acts 1907, eh. 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 the writ of certiorari, and only after final decree or judgment in the court .of civil appeals, and is without power to review the interlocutory orders of that court or its judges in matters within its jurisdiction. {Post, p. 438.) Cases cited and approved: Walker v. Lemma, 129 Tenn., 444; Sharp v. Rose, 130 Tenn., 228.'
132 Tenn. 439State ex rel. Timothy v. Alexander (1915)
1. COURTS. Court of civil appeals. Jurisdiction. Ouster suits. Acts 1907, cli. 82, sec. 7, gives the court of civil appeals appellate jurisdiction of cases brought up from equity or chancery courts, with certain exceptions, and cases tried in the circuit and common-law courts in which writs of error or appeals in the nature of writs of error are applied for, and provides that in cases in which appellate jurisdiction is not conferred upon such court appeals shall he direct to the supreme court, and writs of error, certiorari, and supersedeas shall he issued by that court. Ouster Act (Acts 1915, ch. 11), sec. 9, gives the supreme court appellate jurisdiction where a final judgment or decree has been rendered in causes instituted under that act. Held, that the Act of 1915 ingrafts on the Act of 1907 an additional exception, and places ouster proceedings in the class of cases of which the supreme court is given exclusive jurisdiction, and hence the court of civil appeals and its judges are without jurisdiction to hear and determine an appeal, or an appeal in the nature of a writ of error, or to issue writs of certiorari and supersedeas, or adjudicate the right of a party to'such a writ in a suit under the Act of 1915. (Post, p. 443.) Acts cited and construed: Acts 1907, ch. 82, sec. 7; Acts 1915, ch. 11, secs.’ 9, 13. 2. COURTS. Supreme court. Review of acts of court of civil appeals and judges thereof. Acts 1907, ch. 82, sec. 8, providing that in all cases within the final jurisdiction of the court of civil appeals the decrees and judgments of such court shall he final, and shall not he reviewed by the supreme court save as therein provided, does not apply to cases outside the jurisdiction of the court of civil appeals, and when that court or one or its judges mistakenly assumes jurisdiction tlie supreme court is not limited to the method prescribed in that act for removing cases from the court of civil appeals for review. {Post, p. 446.) Acts cited and construed: Acts 1907, ch. 82, secs. 7, 8. Cases cited and approved: Sharp v. Rose, 130 Tenn., 228; Walker v. Lemma, 129 Tenn., 444. 3. MUNICIPAL CORPORATIONS. Officers. Removal or suspension. Statutory provisions. Acts 1915, ch. 11, sec. 8, provides relative to ouster proceedings that, if defendant shall he found guilty, judgment of ouster shall be rendered against him and he shall be ousted from his office. .Section 10 authorizes the court to suspend accused officers from performing the duties of their office pending the final hearing and determination of the matter, but further provides that no person shall he suspended until at least five days’ notice of the application for the order of suspension shall he served upon him, that such officer may appear and shall be entitled to a full hearing upon the charges contained in the complaint and upon the application for the order of suspension, and that when an order of suspension is made the vacancy shall he filled as the law provides for the filling of vacancies in such office. Held, that an injunction restraining an officer sought to be ousted from exercising the functions of his office would accomplish the same result as his suspension, and, having been granted without the required notice and hearing, was unauthorized and beyond the power of the trial judge. {Post, p\ 448.) Acts cited and construed: Acts 1915, ch. 11, secs. 8, 10. 4. CERTIORARI. Want of excess of jurisdiction. Statutory provisions. Under Shannon’s Code, sec. 4853, providing that the writ of cer-tiorari may be granted where an inferior tribunal, hoard, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when in the judgment of the court there is no other plain, speedy, or adequate remedy, it is the duty of the supreme court to grant the writ of certiorari and supersedeas when orders of the court of civil appeals and its judges and of the circuit court are beyond the jurisdiction of those courts. (Post, p. 450.) Cases cited and approved: State ex rel. v. Hebert, 127 Tenn., 220; Howell v. Thompson, ISO Tenn., 311. Code cited and construed: See. 4853 (S.).
132 Tenn. 452State ex rel. Timothy v. Howse (1915)
1. COURTS. Supreme court. Jurisdiction. Ouster suits. Acts 1907, ch. 82, sec. 7, provides that, in cases in which appellate jurisdiction is not conferred on the court of civil appeals, appeals shall he direct to the supreme court, and writs of error, certiorari, and supersedeas shall ,be issued by, and made returnable to, that court, and such court shall have exclusive jurisdiction, and shall try and finally determine all such cases. Ouster Act (Acts 1915, ch. 11), secs. 9, 13, provide that appeals in proceedings instituted thereunder shall lie to the supreme court, where final judgment shall be rendered. Held, that the supreme court, and not the court of civil appeals, has jurisdiction to issue writs of certiorari and supersedeas to review an order suspending a municipal officer from office pending an ouster proceeding, since, when appeals* lie to the supreme court, the power to revise, regulate, or review orders, judgments, and decrees by certiorari or supersedeas is also with that court. (Post, p. 455.) Acts cited and construed: Acts 1907, ch. 82, sec. 7; Acts 1915, ch. 11, secs. 9, 13. 2. MUNICIPAL CORPORATIONS. Officers. Removal or suspension. Statutory provisions. “Full hearing.” Ouster Act (Acts 1915, ch. 11), sec. 7, provides that ouster proceedings thereunder shall be summary and triable as equitable actions, regardless of the court in which they are brought. Section 10 authorizes the suspension of the officer sought to be ousted pending the determination of the proceeding, and provides that no person shall be suspended without five days’ notice of the application for the order of suspension, and that he shall be entitled to a full hearing upon the charges contained in the complaint and upon the application for the order of suspension. Held, that the “full hearing” provided for is not a “final hearing,” but means no inore than that the chancellor or trial judge shall give ample opportunity to both sides to mate a showing fairly adequate to make manifest the propriety or impropriety of the suspension. (Post, p. 456.) 3. MUNICIPAL CORPORATIONS. Officers. Removal or suspension. Evidence. On an application to suspend a municipal officer pending an ouster proceeding against him under Acts 1915, ch. 11, the proof need not be adduced as is done on a formal trial on the merits, but may be introduced by affidavit or otherwise. (Post, p. 457.) Cases cited and approved: Root v. Mills, 168 Fed., 688; Taylor v. Breese, 163 Fed., 678; Anderson v. Commonwealth, 105 Va., 533. 4. MUNICIPAL CORPORATIONS. Officers. Removal or suspension. Evidence. On an application to suspend a municipal officer pending an ouster proceeding against him under Acts 1915, ch. 11, the court did not err in admitting in evidence the transcript of a proceeding pending in the chancery court of the same county, in which the accused officers were sought to be held liable for the same acts, in which transcript were incorporated the depositions of witnesses who had been cross-examined by their counsel. (Post, p. 458.) 5. EVIDENCE. Admissions. Depositions. A deposition of a party was admissible against him, in a proceeding other than that in which it was taken, as an admission under oath. (Post, p. 458.) 6. MUNICIPAL CORPORATIONS. Officers. Removal or suspension. Evidence. On an application to suspend a municipal officer pending an ouster proceeding against him, it was the duty of the court to hear the testimony of witnesses produced by such officer, providing their introduction was not carried to a point of manifesting a purpose to delay action on the application for the suspension. (Post, p. 458.) 7. MUNICIPAL CORPORATIONS. Officers. Removal or suspension. Nature of proceeding. “Civil proceeding.” An ouster jjroceeding against a municipal officer, under Acts 1915, ch. 11, is primarily for the protection of the public, and not to punish the offender, and is civil rather than criminal in nature. (Post, p. 459.) Cases cited and approved: Territory v. Sanches, 14 N. M., 493; Skeen v. Craig, 31 Utah, 20. Code cited and construed: Sec. 4853 (S.).
132 Tenn. 460Marr v. Murphy (1915)
1. ' EXTORTION. Official fees. Penalties. Under Shannon’s Code, secs. 6352, 6353, prohibiting officers from demanding or receiving fees other than expressly provided by law, and declaring that, if an officer demands or receives any other or higher fee than prescribed, he shall be liable for a penalty, an officer who receives a fee to which he is not entitled is liable to a penalty, though the fee was voluntarily paid; this being particularly true in view of section 6714, governing extortion, which makes guilt depend upon the demanding and receiving of a greater fee than is allowed. (Post, p. 463.) Cases cited and approved: Leggatt v. Prideaux, 16 Mont., 205; State v. Coleman, 116 Am. St. Rep., 446. Code cited and construed: Secs. 6352, 6353, 6714 (S.). 2. EXTORTION. Official fees. Penalties. Where a justice of the peace received a fee for issuing a criminal ■warrant before it was due, he is liable to the penalty provided by Shannon’s Code, sec. 6353, for the receiving or demanding of any other or higher fee than that prescribed; such fee not being prescribed. (Post, p. 464.) Case cited and approved: State v. Cooper, 120 Tenn., 549.
132 Tenn. 466Ferris v. Bloom (1915)
1. JURY. Jury trial. Waiver. “Civil suit.” Shannon’s Code, sec. 3912, providing that the issue of devisavit vel non shall he tried by jury, was enacted prior to Acts 1875, ch. 4, as amended by Acts 1889, ch. 220 (Shannon’s Code, secs. 4611-4616), providing that failure to demand a jury in the method provided should cpnstitute a waiver of the right to jury trial. Held, that, as the legislature must have known that an issue devisavit vel non was a civil suit, the subsequent acts apply to trial of that issue, and a contestant’s failure to demand a jury ■ trial is a waiver of the right. (Post, p. 467.) Acts cited and construed: Acts 1875, ch. 4; Acts 1889, ch. 220. Cases cited and approved: Swink v. McKnight’s Executors, 88 Tenn., 765; Cheatham v. Pearce & Ryan, 89 Tenn., 668; Worth-ington v. Railroad, 114 Tenn., 177; Garrison v. Hollins, Burton & Co., 70 Tenn., 684; Coulter v. Sewing Machine Co., 71 Tenn., 115; Railroad v. Foster, 78 Tenn., 351; McGuire v. Railroad, 95 Tenn., 707; Warren v. Grocery Co., 96 Tenn., 574; Casey, etc., Mfg. Co. v. Weatherly, 97 Tenn., 297. Code cited and construed: Secs. 3912, 4611-4616 (S.). 2. JURY. Right to jury. “Cases triable by jury.” Acts 1875, ch. 4, as amended by Acts 1889, ch. 220 (Shannon’s Code, secs. 4611-4616), providing that in cases “triable by jury” a demand shall be necessary, applies not only to cases where jury • trial was permissive, but where it had heretofore been imperative; neither Const., art. 1, sec. 6, declaring that right of trial by jury shall remain inviolate, nor Const. U. S. Amend. 7, declaring that it should be preserved, prohibiting waiver of jury trial. (Post, p. 469.) Acts cited and construed: Acts 1875 and 1889. Gases cited and approved: Garrison v. Hollins, Burton & Co., 70 Tenn., 684; McGuire v. Railroad, 95 Tenn., 707; Warren v. Grocery Co., 96 Tenn., 574; In re Pittsburg, 243 Pa., 392; Indianapolis N. T. Co. v. Brennan, 174 Ind., 1. Code cited and construed: Sec. 3912 (S.).
132 Tenn. 472Ingle System Co. v. Norris (1915)
1. CORPORATIONS. Corporate existence. Right to deny. Wlien a private person, enters into a contract with, a purported corporation, he thereby admits the existence of a corporation; and hence, if the payee of a note is described by a corporate name, the maker is estopped to deny the corporate existence. (Post, p. 474.) Cases cited and approved: Welland Canal Co. v. Hathaway, 8 Wend., 480; Williams v. Michigan Bank, 7 Wend., 539; Holloway V. Memphis, etc., R. R. Co., 2-3 Tex., 465; U. S. Express Co. v. Bedbury, 34 Ill., 459; Studebaker Bros. Mfg. Co. v. Montgomery, 74 Mo., 101; Barbaro v. Occidental Grove No. 16, 4 Mo. App., 429; Harris v. Muskingum Mfg. Co., 4 Blaekf. (Ind.), 267; Bennington Iron Co. v. Rutherford, 18 N. J. Law, 107; Weller v. Davis & Sanford Co., 15 Ga. App., 79. 2. CORPORATIONS. Corporate existence. Estoppel to deny. Where a note was made payable to the Ingle System Company, and there was nothing else to show the nature of the company, the payee is estopped to deny the company’s corporate existence, for it may be assumed that such company was a corporation; the name not being particularly applicable to a firm. (Post, p. 474.)
132 Tenn. 477Cincinnati, N. O. & T. P. R. v. Brock (1915)
1. RAILROADS. Injuries to persons on tracks. Duty of care. Burden of proof. Under Shannon's Code, sec. 1574, subd. 4, declaring that every railroad company shall keep a lookout, and, when any person or other obstruction appears on the track, take all means to prevent an accident, and section 1576, declaring that no railroad company that observes such precautions shall be responsible for damage done to persons on its road, one suing for the death of her intestate, killed on defendant’s road, has the burden of showing that such intestate was on or so hear the track as to be an obstruction before the railroad company is bound to show that it observed the statutory precautions. (Post, p. 478.) Case cited and approved: Virginia, etc., R. Co. v. Hawk, 160 Fed., 348. Code cited and construed. Sec. 1574, subsec. 4; sec. 1576 (S.). 2. CERTIORARI. Review. Questions presented. Where a judgment for plaintiff was reversed by the court of civil appeals, and the defendant did not by its own petition and assignment of error present for review by the supreme court the holding that the denial of its motion for a peremptory instruction was not error, the question is not open to review on certiorari brought by plaintiff. (Post, p. 480.) Case cited and construed: Knight v. Cooley, 131 Tenn., 21.
132 Tenn. 481Nixon Mining Drill Co. v. Burk (1915)
PRINCIPAL AND AGENT. Authority of agent. Warranties. An agent,, empowered to sell personal property, lias implied power to mate such warranties as the law would imply, had the same been made by the principal direct, and as are usual in sales of like property. But an agent, authorized to sell a motor truck, has no implied authority to warrant that the tires would last a given length of time while carrying an excess load; such warranties not being usual. Cases cited and distinguished: Ezell v. Franklin, 34 Tenn., 236; Lipscomb v. Kitrell, 30 Tenn., 260.
132 Tenn. 487Knoxville Ry. & Light Co. v. Vangilder (1915)
1. HIGHWAYS. Automobile accident. Obstructions. Contributory negligence. A person who drove an automobile at night in a dark place on the highway so fast that he could not avoid an obstruction within the distance lighted by his lamps was guilty of contributory negligence, barring his recovery, though just before the accident the bright lights of an approaching automobile and a curve where his own light did not shine directly in the way the machine was going hindered him from seeing the obstruction. (Post, p. 491.) Case cited and approved: West Construction Co. v. White, 130 Tenn., 520. 2. NEGLIGENCE. Imputed negligence. Automobile accident. Husband and wife. The negligence of the driver of an automobile, in consequence of which the machine ran into an obstruction negligently left at the roadside by defendant, was not imputable to his wife, who was riding with him, so as to bar her right to recover for her own injuries, where it did not appear that the danger was obvious or known to her, and that she did not rely on the assumption that her husband would exercise care and caution. (Post, p. 492.) Cases cited and approved: Turnpike Co. v. Yates, 108 Tenn., 429; McPadden v. Santa Ana, etc., R. Co., 87 Cal., 464; Peck v. New York, etc., R. Co., 50 Conn., 379; Penn. R. R. Co. v. Goodenough, 55 N. J. Law, 577; Gulf etc., Co. v. Greenlee, 62 Tex., 344; Huntoon v. Trumbull (C. C.), 12 Fed., 844; Morris v. C., M. & St. P. R. Co. (C. C.), 26 Fed., 22; Yahn v. Ottumwa, 60 Iowa, 429; Prideaux v. Mineral Point, 43 Wis., 513; Carlisle v. Sheldon, 38 Vt., 440; Joliet v. Seward, 86 Ill., 402; Galveston, H. & S. A. R. Co. v. Kutac, 72 Tex., 643; Thorogood v. Bryan, 8 C. B., 115; Bale v. Denver City Tramway Co., 173 Fed., 787; Cotton v. Willmar, etc., R. R. Co., 99 Minn., 366; Turnpike Co. v. Yates, 108 Tenn., 428; Koehler v. Miller, 21 Ill. App., 557; L., etc., R. Co. v. Creek, 130 Ind., 139; Miller v. L., etc., R. Co., 128 Ind., 97; Bailey v. Centerville, 115 Iowa, 271; Street v. Holyoke, 105 Mass., 82; Hedges v. Kansas City, 18 Mo. App., 62; Flori v. St. Louis, 3 Mo. App., 231; Platz v. Cohoes, 24 Hun (N. Y.), 101; Shaw v. Craft (C. C.), 37 Fed., 317; Sheffield v. Central Union Tel. Co. (C. C.), 36 Fed., 164; Davis v. Guarnieri, 45 Ohio St., 470; Hoag v. N. Y. Central, etc., R. Co., Ill N. Y., 199; So. R. Co. v. King, 128 Ga., 383; Teal v. St. Paul City R. Co., 96 Minn., 379; Dudley v. Peoria R. Co., 153 Ill. App., 624; N. Y., etc., R. Co. v. Robbins, 38 Ind. App., 172; Sheffield v. Central Union Tel. Co. (C. C.), 36 Fed., 164; Chicago, etc., R. R. Co. v. Spilker, 134 Ind., 380; Reading Tp. v. Telfer, 57 Kan., 798; Denton v. Mo., etc., R. R. Co., 90 Kan., 51; Lammers v. Gt. Nor. R. Co., 82 Minn., 120; Finley v. Chicago, etc., R. Co., 71 Minn., 471; Hennessy v. Brooklyn City R. Co., 73 Hun, 569; Louisville, etc., R. R. Co. v. McCarthy, 129 Ky., 821; Williams v. Withington, 88 Kan., 809; Basler v. Sacramento Gas Co., etc., 158 Cal., 514; Hampel v. Detroit, etc., R. R. Co., 138 Mich., 1; Schultz v. Old Colony St. R. Co., 193 Mass., 309; Colorado, etc., R. Co. v. Thomas, 3 Colo., 517. 3. HUSBAND AND WIFE. Action by married woman. Parties. Joinder of husband. In a married woman’s action for injuries received in an automo' bile accident, which occurred after the passage of Married Women’s Act, February 20, 1913 (Acts 1913, ch. 26), by which married women are given the right to sue in their own names, the joinder of the husband as a party plaintiff was unnecessary. (Post, p. 499.) Acts cited and construed: Acts 1913, ch. 26. Code cited and construed: Secs. 4248, 4249 (S.).
132 Tenn. 501Daniel v. Dayton Coal & Iron Co. (1915)
1. PUBLIC LANDS. Transfer of land grant. Registration. Presumption. Where a copy of what appeared to he a registration of an original land grant was introduced in evidence in ejectment, and immediately following it appeared a transfer executed by the grantee of the land therein described, the position of the transfer on the registration book following the grant indicated that it was a transfer of the land written on the back of the original grant. (Post, p. 504.) Case cited and approved: De Garmo v. Prater, 125 Tenn., 497. 2. ACKNOWLEDGMENT. Defects. Cure by registration deeds. Under Shannon’s Code, secs. 3761, 3762, relating, respectively, ,to presumptions on registration twenty years old and on registration thirty years old, the fact that a deed had been registered since December 24, 1834, cured any defects in the acknowledgment thereof. (Post, pp. 504, 505.) Code cited and construed: Secs. 3761, 3762 (S.). 3. PUBLIC' LANDS. Registration. Transfer of land grant. Where the custom then in force required that grants of land from the State be recorded by the register of the land office before delivery to the grantees, a grant had necessarily been recorded prior to January 23, 1833, when a transfer thereof was indorsed on the back of the grant; and hence a notation appealing on the record, reading “Registered December 24, 1834,” necessarily referred to the registration of the transfer, rather than of the grant. (Post, pp. 505, 506.) 4. ESTOPPEL. Provisions of will. Ejectment. A provision of a will bequeathing to testator’s children “the proceeds of the sale of land in Tennessee lately bought by me that may. remain there and uncollected at the time,, of my decease,’’ and a provision of a codicil stating that “respecting Tennessee lands I refer solely to the unpaid purchase money,” were too uncertain to establish a conveyance of the land, or to estop the heirs from asserting title in ejectment, especially where the lands in controversy were bought by testator twenty-four years before execution of the will, and the evidence was not conclusive whether testator owned other lands in Tennessee. {Post, pp. 506, 507.) 5. FRAUDS, STATUTE OF. Parol sale. Renunciation. Ejectment. The action of the vendor’s heirs in bringing ejectment for the land is a sufficient renunciation of a parol voidable sale thereof. {Post, p. 507.) Case cited and approved: Vaughn v. Vaughn, 100 Tenn., 285. 6. ESTOPPEL. Elements. Recitals of will. Ejectment. A recital in a will that testator owns no lands in the State will not estop his heirs from asserting title to lands as having be- ’ longed to him, where defendant has in no way acted on such recitals. {Post, pp. 507, 508.) Cases cited and approved: Smith v. Cross, 125 Tenn., 159; Tate v. Tate, 126 Tenn., 171. 7. EJECTMENT. Right of action. Parties. Power of sale. A provision of a will authorizing testator’s executors to sell and convey his realty, being but a power of sale, did not vest title in his executors, so as to preclude his heirs from suing to recover the land. {Post, pp. 508, 509.) Case cited and distinguished: Rogers v. Marker, 59 Tenn., 645. 8. ADVERSE POSSESSION. Use and occupation. Sufficiency. The maintaining for more than seven years of a small pen in the woods, about thirty-five by forty feet, which was never cleared or cultivated, being a mere illusory possession, from which the owner might reasonably conclude that there’was no intention to claim title, was not such a use and occupation as would give title to a large tract of land under the statute of limitations'; it being essential that tbe use be such as the land is reasonably susceptible of, and that it be obvious, open, and notorious, and indicate an intention to use the land as owner. (Post, pp. 509, 510.) Cases cited and approved: King v. Mabry, 71 Tenn., 241; Coal Co. v. Coppinger, 95 Tenn., 526. 9.ADVERSE POSSESSION. Use and occupation. Inclosure. Title in defendant by adverse possession could not be predicated on a possession within the boundary of a tract of land owned by defendant and interlapping the land in controversy, where defendant’s inclosure was not within the interlap. (Post, p. 610.) 10. ADVERSE POSSESSION. Possession within interlap. Superior title. A possession within such interlap, but on a tract of land to which there was a title superior to that under which plaintiff claimed, could not be adverse to plaintiff’s title. (Post, p. 510.) 11. ADVERSE POSSESSION. Possession by third person. Sufficiency of evidence. Evidence in ejectment, wherein defendant company claimed title by adverse possession, held not to show that the possession of a third person was held and claimed as a possession for defendant for a sufficient length of time to vest title in defendant. (Post, pp. 510-512.)
132 Tenn. 513Puckett v. Wynns (1915)
1. EXECUTORS AND ADMINISTRATORS. Sales. Petition for sale. Under Shannon’s Code, sec. 4000, providing that where an administrator has exhausted the personal estate in the payment of debts, leaving just debts unpaid or paid by the representative out of his own means, land belonging to deceased may be sold to satisfy such 'debts, and section 4001, providing that before decreeing such sale it shall appear that the personal estate has been exhausted in the payment of bona fide debts, and that the debts for which the sale is sought are justly due and owing, either to creditors or the representative, an administrator’s petition for such a sale is not insufficient to give jurisdiction, where it alleges the total amount of indebtedness, although it does not name the creditors, nor set forth the nature and amount of each. (Post, pp. 518, 519.) Code cited and construed: Secs. 4000, 4001, 4002 (S.). 2. EXECUTORS AND ADMINISTRATORS. Sale of land. County court. Jurisdiction. Under Shannon’s Code, secs. 6028, 6071, 6112, conferring con-curent jurisdiction upon the chancery, circuit, and county courts to sell real estate of decedents and for distribution or partition, the county court has concurrent jurisdiction with the circuit and chancery courts of a proceeding to sell a decedent’s real estate for the payment of debts due to creditors or to the representative. (Post, pp. 519-522.) Cases cited and approved: Kindell v. Titus, 56 Tenn., 727; Pea v. Waggoner, 6 Tenn., 242; Starkey-v. Hammer, 60 Tenn., 441; Dulles v. Read, 14 Tenn., 53. Code cited and construed: Secs. 6028, 6071, 6112 (S.). 3. INFANTS. Judgment. Collateral attack. Judgments impeachable. Where the court has jurisdiction of the parties and the subject-matter of litigation upon pleadings putting in issue the matter adjudicated, the decree cannot be attacked collaterally, and is binding upon minors as well as adults. (Post, pp. 522, 523.) Cases cited and approved: Wilson v. Schaefer, 107 Tenn., 330; Hurt v. Long, 90 Tenn., 445; Robertson v. Winchester, 85 Tenn., 171; Pope v. Harrison, 84 Tenn., 82. 4. JUDGMENT. Collateral attack. Grounds. Upon collateral attack upon a judgment or decree of a court of general jurisdiction by parties or privies thereof, such judgment or decree cannot be questioned, except for want of authority over the matter adjudicated, which want of authority must appear from the record itself. (Post, p. 523.) Case cited and approved: Wilkins v. McCorkle, 112 Tenn., 707. 5. JUDGMENT. Collateral attack. Presumption of jurisdiction. On collateral attack on a judgment or decree, it is conclusively presumed, in the absence of a contrary showing on the record, that the court had power to determine the question involved, and the evidence on which the court acted cannot be considered. {Post, p. 523.) 6. EXECUTORS AND ADMINISTRATORS. Sale of land. Sufficiency of complaint. Where the petition for an administrator’s sale did not set out the individual debts and the names of the creditors, the insufficiency was waived by failure to make objection. {Post, pp. 523, 524.) 7. EXECUTORS AND ADMINISTRATORS. Sales. Preliminaries. Failure to make a report to the clerk of the court of an administrator’s sale to pay debts did not invalidate the sale, since it must be assumed that the court had necessary proofs to establish the facts set forth in the decree of sale. {Post, pp. 524, 525.) Case cited and approved: Bloom v. Cate, 75 Tenn., 471. 8. EXECUTORS AND ADMINISTRATORS. Sales. Preliminaries. That the administator, petitioning for leave to sell land to pay debts, made no inventory of the estate and no publication for creditors, none of whom were joined, did not invalidate the decree, since such matters were not essential thereto. {Post, pp. 525, 526.) Code cited and construed: Secs. 4067, 4068, 4078 (S.).
132 Tenn. 527Hutton v. Watters (1915)
FROM WEAKLEY. Appeal from the Circuit Court of Weakley County to the Court of Civil Appeals, and by certiorari from the Court of Civil Appeals to the Supreme Court.— Jos. E. Jones, Judge.
132 Tenn. 545Crigger v. Coca-Cola Bottling Co. (1915)
1. FOOD. Injurious substances. Tiie duty of one who prepares and puts on the market, in bottles or sealed packages, foods, drugs, beverages, medicines, or articles inherently dangerous of exercising care to see that nothing unwholesome or injurious is contained in the bottle or package is not in the nature of an implied warranty, and is based upon negligence. (Post, pp. 548-552.) Cases cited and approved: Boyd v. Coca-Cola Bottling Works, 132 Tenn., 23; Jackson Coca-Cola Bottling Co. v. Chapman (Miss.), 64 So., 791; Thomas v. Winchester, 6 N. Y. (2 Selden), 397; Salmon v. Libby, 219 Ill., 421; Tomlinson v. Armour, 75 N. J. L., 748; McQuaid v. Ross (Wis.), 22 L. R. A., 195; Bishop v. Weber, 139 Mass., 411; Huset v. J. I. Case Threshing Mach. Co., 120 Fed., 865; Wellington v. Downer Kerosene Oil Co., 104 Mass., 64; Yan Bracklin v. Fonda, 12 Johns. (N. Y.), 468; Craft v. Parker (Mich.), 21 L. R. A., 139; Brown v. Marshall, 47 Mich., 576; Fleet v. Hollenkemp, 13 B. Mon. (Ky.), 219; Blood Balm Co. v. Cooper, 88 Ga., 457; Weiser v. Holzman, 33 Wash., 87; Peters v. Jackson, 50 W. Va., 644; Farrell v. Manhattan Market Co., 198 Mass., 271; Crocker v, Baltimore Dairy Lunch Co., 214 Mass., 177. Case cited and distinguished: Watson v. Augusta Brewing Co., 124 Ga., 121. 2. FOOD. Sales. Injurious substances. One who prepares and puts on the market, in bottles or sealed packages, foods, drugs, beverages, or articles inherently dangerous is liable for breach of a duty to the public in the preparation thereof, regardless of the privity of contract to any one injured for a failure to properly safeguard and perform such duty. (Post, p. 552.)' 3. FOOD. Deleterious beverage. Evidence. In. an action for damages for an illness caused by swallowing a decomposed mouse in a bottle of Coca-Cola purchased from a local dealer to whom it had been sold by a bottling company, evidence held to sustain a finding that the bottling company was not at fault. (.Post, pp. 552, 553.)
132 Tenn. 554Hogan v. Hamilton County (1915)
1. OFFICERS. Eligibility.- Constitutional and statutory provisions. Defaulter. Under the express provisions of Const., art. 2, sec. 25, and Shannon’s Code, sec.- 1069, the election of a defaulter in the payment of State revenue to the office of clerk of the county hoard of road commissioners was absolutely void. {Post, pp. 556, 557.) Cases cited and approved: Newman v. Justices of Jefferson County, 25 Tenn., 41; Pearce v. Hawkins, 32 Tenn., 88; Mayor and Aldermen of Memphis v. Woodward, 59 Tenn., 499. Code cited and construed: Sec. 1069 (S.). Constitution cited and construed: Art. 2, sec. 25. 2. OFFICERS. De facto officer. Rights. The fact that one whose election as clerk of-a county hoard of road commissioners was absolutely void was permitted by the county court to take the oath, and to give bond added nothing to his rights, and he merely became a de facto officer and could assert no rights. (Post, pp. 556, 557.) 3. OFFICERS. “De jure officer.” Right to compensation. The clerk of a county board of road commissioners entitled to hold over under the constitution, after the void election of his intended successor, was the “de jure officer” entitled to serve and to receive the salary of the office. (Post, pp. 556, 557.) 4. ELECTIONS. Contest. Jurisdiction. Chancery. The Chancery Court has no jurisdiction of a bill brought to contest the election of the one receiving the highest number of votes, on the ground of his ineligibility, or to declare the election void. (Post, pp. 557, 558.) Case cited and approved: Adcock v. Houk, 122 Tenn., 269. 5. OFFICERS. Action for salary. Evidence; Right to office. In a suit against a county for salary due the clerk of the board of road commissioners, plaintiff might show that the person who had been nominally elected as his successor, and who had given bond and taken the oath of office was a defaulter, and: hence not a de jure officer, but only a de facto officer. (Post, p. 558.)
132 Tenn. 559Lowenthal v. Underdown (1915)
1. LICENSES. Merchants. Persons liable. “Solicitor.” One who merely displays samples and takes orders, which he forwards to his employer for approval, collecting no money and delivering no goods, is a mere “solicitor,” and’ not liable for a merchant’s license fee. (Post, pp. 559-561.) 2. CONSTITUTIONAL LAW. Judicial functions. Political questions. Whether nonresident merchants should he allowed to compete for local trade by employing solicitors without paying a merchant’s license fee is a political question for the legislature, with which the courts have no concern. (Post, pp. 559-561.)
132 Tenn. 562Imboden v. City of Bristol (1915)
1. MUNICIPAL CORPORATIONS. Issue of bonds. Where the credit of a city is to be used for a proper city purpose, bonds may be issued, if due authority is given by the legislature, without a submission of the matter to a vote of the people. (Post, pp. 564-567.) Acts cited and construed: Acts 1913, ch. 18. Cases cited and approved: Arnold v. Knoxville, 115 Tenn., 195; State ex rel. v. Powers, 124 Tenn., 556; Shelby County v. Exposition Co., 96 Tenn., 653; Colburn v. Railroad, 94 Tenn., 43. Constitution cited and construed: Art. 2, sec. 29. 2. MUNICIPAL CORPORATIONS. Street improvements. Bonds. Const., art. 2, sec. 29, declares that the credit of no county, city, or town shall be given in aid of any person, association, or corporation except upon an election first held by the qualified voters. Priv. Acts 1913 (1st Ex. Sess.), ch. 18, authorized the city of Bristol to improve streets and issue bonds to pay for the improvement; the bonds to be the absolute and general obligations of the municipality. The act further provided for the payment of two-thifds of the cost by abutting property owners, and they were allowed five years to complete payments. Held that, though the abutting property owners received a peculiar benefit and were specially assessed for it, yet, the improvement of the streets being for the benefit of the city and its inhabitants, the issuance of bonds for payment of the entire work was not a pledge of the city’s credit for the benefit of such abutting owners. (Post, pp. 564-567.)
132 Tenn. 568Cincinnati, N. O. & T. P. Ry. Co. v. Roddy (1915)
1. LIMITATION OF ACTIONS. Flowage. Damages. Continuing damages. Where a railroad ditch along the right of way is allowed to fill up by the road’s negligence, throwing water upon plaintiff’s lands, depositing gravel and cinders, a distinct right of action arises with each wrongful act in the overflow or submergence of plaintiff’s lands due to 'the railroad’s negligence in failing to keep open the ditch. (Post, pp. 570, 571.) Cases cited and approved: Carriger v. Railroad, 75 Tenn., 388; Railroad v. Higdon, 111 Tenn., 124; Silsby Manufacturing Co. v. State, 104 N. Y., 569; McConnell v. Kibbe, 29 Ill., 485; Gabbett v. Atlanta, 137 Ga., 180; Knapp v. New York, etc., R. Co., 76 Conn., 311. 2. LIMITATION OF ACTIONS. Flowage. Damages. Limitations. Where defendant railroad, by allowing the ditch along its roadbed to become filled up, periodically inundated plaintiff’s adjacent lands, depositing gravel and cinders, the only damages recoverable were those caused by the deposit of gravel within the period of the statute of limitations, taking the 'value of the land at beginning of the period as normal, although it was then covered with gravel deposited by previous floodings, as to which plaintiffs’ causes of action were barred. (Post, pp. 571-575.) Cases cited and approved: Railroad v. Brigman, 95 Tenn., 624; Love v. Railroad, 108 Tenn., 122; Railroad v. Matthews, 115 Tenn., 172. Cases cited and distinguished: Pickens v. Coal River Boom, etc., Co., 66 W. Va., 10; Lentz v. Carnegie Bros. & Co., 145 Pa., 612.
132 Tenn. 576Whittaker v. Louisville & N. R. (1915)
1. JUSTICES OF THE PEACE. Pleading. Warrant. Sufficiency. In a suit against a railroad for personal injury on or near its tracks, begun before a justice of the peace, the warrant must sufficiently advise the defendant of tbe nature of the suit. (Post, pp. 578, 579.) 2. RAILROADS. Accident at crossing. Signals. Under Shannon’s Code, sec. 1574, subsecs. 1, 2, requiring the overseers of public roads to place at each railroad crossing a sign marked, “Look out for the cars when you hear the whistle or bell,” and providing that no engineer need blow the whistle or ring the bell unless so designated, an engineer is not required to sound the whistle or bell at a crossing not designated by such sign. (Post, pp. 579, 580.) Case cited and approved: Graves v. Railroad, 126 Tenn., 149. Code cited and construed: Sec. 1674, subsec. 2 (S.). 8. RAILROADS. Accident at crossing. Pleading. Obstruction. A count, in an action for personal injury, under Shannon’s Code, sec. 1574, subsec. 4, providing that every railroad shall keep the engineer or fireman always upon the lookout, and when any obstruction appears the whistle shall be sounded, the brakes put down, and all possible means taken to prevent an accident, is a count under the common law, unless it was further charged that the person or object on the track was struck by the train, and by the addition of such circumstance the count is brought within Shannon’s Code, sec. 1575, providing that every railroad failing to observe specified precautions shall be responsible for all resulting damage to persons or property, and section 1576, providing that no railroad observing such precautions shall be responsible for injury to persons on its road, so that where the warrant did not charge that the train struck the plaintiff or her wagon, and it appeared that she jumped from the wagon, the action was under the common law, and there was no absolute liability for failure to take the specified precautions. (Post, pp. 580-584.) Case cited and approved: Railroad v. Crews, 118 Tenn., 52. Cases cited and distinguished: Holder v. R. Co., 79 Tenn., 176; Railroads v. Sadler, 91 Tenn., 508; Railroad v. Phillips, 100 Tenn., 130. Code cited and construed: Secs. 1574, subsecs. 2 and 4, secs. 1575, 1576 (S.). 4. RAILROADS. Accident at crossing, instruction. In an action for personal injury at a crossing brought under Shannon’s Code, sec. 1574, subsec. 4, an instruction that it was the duty of the railroad on seeing plaintiff’s wagon on or near the track, and in view of the train’s speed of fifty miles an hour, to sound the whistle and endeavor to prevent an accident, was proper; but an instruction that plaintiff was entitled to recover because the engineer made no effort to stop even though •no collision occurred was improper. (Post, p. 584.) 5. RAILROADS. Accident at crossing. Question for jury. Contributory negligence. In an action for personal injury at a crossing brought under Shannon’s Code, sec. 1574, subsec. 4, held on the evidence that it was for the jury to say whether plaintiff was negligent in jumping from the wagon instead of trusting her safety to the speed of the horses as the driver of the team did. (Post, pp. 584, 585.)
132 Tenn. 586American Zinc Co. v. Graham (1915)
1. MASTER AND SERVANT. Safe place to work. Mines. Statute. ■ Laws 1903, ch. 237, sec. 28, requiring that the buckets used in mines shall be covered and that there shall be. certain structures inside the shaft so as to make the ascent and descent of employees safe, applied to a mine not fully in operation, which had sunk a shaft more than 250 feet, from the foot of which ran a drift to an old shaft, intended as a means of conducting air into the mine, and which was used by the employees in going ■to and returning from their work. (Post, p. 589) Acts cited and construed: Acts 1903, ch. 237, sec. 28. 2. MASTER AND SERVANT. Safe place to work. Mines. Statute. Contributory negligence. In such case a servant, knowing that the master had failed to comply with the statute requiring certain structures inside the shaft to make it safe for employees going up and down, did not assume the risk; and the fact that the statute fixed a penalty for its violation did not exclude his action for damages. (Post, pp. 589-591.) Cases cited and approved: Streeter v. Western Wheel Scraper Co., 254 Ill., 244; Fitzwater v. Warren, 206 N. Y., 355; Curtis-Cartside Co. v. Pribyl, 38 Okla., 511; Poli v. Numa Block Coal Co., 149 Iowa, 104; Low v. Clear Creek Coal Co., 140 Ky., 754; Narramore v. Railroad, 96 Fed., 298. 3. MASTER AND SERVANT. Master’s negligence. Violation of statute. A master’s violation of the terms of a statute requiring structures to secure safety in mine shafts was negligence per se, and made him responsible for all injury suffered as a direct consequence thereof. (Post, p. 591.) Cases cited and approved: Queen v. Dayton Coal & Iron Co., 95 Tenn., 458; Riden v. Grimm Bros., 97 Tenn., 220; Railway v. Haynes, 112 Tenn., 712; Adams v. Iron Go., 117 Tenn., 470.
132 Tenn. 592Turner v. Turner (1915)
1. LIFE ESTATES. Lessees of life tenant. Rights of. Under Shannon’s Code, sec. 4184, providing that, where a life tenant shall lease the estate and die before expiration of the lease the rent may he apportioned between his representative and the remainderman, a life tenant cannot create a lease on land which will extend beyond the life estate, the remainderman not joining; for the remainderman is entitled to share in the rental sum pro tanto under the statute or to disaffirm. (Post, p. p. 594. 595 Acts cited and construed: Acts 1877, ch. 159. Cases cited and approved: Arnold v. Hodges, 29 Tenn., 40; Collins v. Crownover (Ch. App.), 57 S. W., 357; Hoagland v. Crum, 113 Ill., 365; Carman v. Mosier, 105 Iowa, 367. Code cited and construed: Sec. 4184 (S.). 2. LIFE ESTATES. Leases by life tenant. Disaffirmance by remainderman. Where, after the death of a life tenant, the remainderman sought to recover possession of the land and compensation from lessees for use, there was no ratification of the lease within Shannon’s Code, sec. 4184, authorizing an apportionment of rent. (Post, pp. 594. 595 3. LIFE ESTATE. “Emblements.” Right to. Where a life tenant, having leased the premises, died, and the remainderman did not recognize the lease, the lessee of the life tenant was entitled to the emblements, which are the crops of grain growing yearly, but requiring an outlay of labor or industry, without payment of any compensation for use of the land in harvesting the emblements (citing Words and Phrases, First and Second Series, Emblements). (Post, pp. 596-598.) Cases cited and approved: Edgehill v. Mankey, 79 Neb., 347; Bradley v. Bailey, 56 Conn., 374.
132 Tenn. 599Studer v. Roberts (1915)
PROCESS. Summons. Amendment. Statutes. Under Shannon’s Code, see. .4495, providing that new plaintiffs or defendants may be added to the suit by plaintiff upon supplemental process taken out and served, and section 4589, included in the same act, providing that the court may strike out and insert in tbe writ or pleadings tbe names of others as plaintiffs or defendants, process to bring in defendant after an amendment substituting plaintiff as administrator, instead of plaintiff in his own name, was not required, and a notification by the court’s order, in place 'of formal process, was sufficient. Acts cited and construed: Acts 1851-52, ch. 152, sec. 6. Cases cited and approved: Love v. Railroad, 108 Tenn., 120; Person v. Fidelity, etc., Co., 92 Fed., 965. Case cited and distinguished: Flatley v. Railroad, 56 Tenn., 230. Code cited and construed: Sec. 4495 (S.).
132 Tenn. 603Lauterbach v. State (1915)
FROM HAMILTON. Appeal from the Criminal Court of Hamilton County. — S. D. McReynolds, Judge.
132 Tenn. 609City of Chattanooga v. Carter (1915)
HUSBAND AND WIFE. Rights of husband. Services of wife. The Married Women’s Act (Laws 1913, ch. 26), which relieved married women from all disability on account of coverture, did not affect a wife’s marital duties, and a husband, as at common law, may recover for loss of the services of his wife by reason of personal injuries sustained by her. Acts cited and construed: Acts 1913, ch.' 26.
132 Tenn. 612Burroughs Adding Machine Co. v. Fryar (1915)
NEGLIGENCE. Owners of buildings. Duties to licensee. Police officer. A police officer, observing a door of the defendant company to be open, while the room was unoccupied, went into the store, and when coming out closed the door with such force as to cause a screen over the transom to fall, injuring his foot. Held, that his acts, though in the performance of his duty, were those of a licensee, and that he could not recover for the injury, since a property owner is liable to a .licensee only for willful injury. Cases cited and approved: Lunt v. Post Printing & Pub. Co., 48 Colo., 316; Gibson v. Leonard, 143 Ill., 182; New Omaha Thompson-Houston Elec. Light Co. v. Anderson, 73 Neb., 84; New Omaha Thompson-Houston Elec. Light Co. v. Bensden, 73 Neb., 49; Casey v. Adams, 234 Ill., 350; Creeden v. Boston & M. R. Co., 193 Mass., 280; Lunt v. Post Ptg. & Pub. Co., 30 L. R. A. (N. S.), 60; Creeden v. Boston & M. R. Co., 9 Ann. Cas., 1121.
132 Tenn. 615Lunsford v. Johnston (1915)
PRISONS. Liability of superintencTent. Torts of assistant. The superintendent of a county workhouse, under Priv. Acts 1913, ch. 264, creating the office of road commissioners, and providing that one of them should he superintendent of the workhouse and employ its guards with the approval of his associates, was acting in an official or governmental capacity in employing a guard, and, where he was not present when the guard, whom he had told not to shoot any prisoner, shot and wounded a prisoner, attempting to escape, he was not liable in damages. Acts cited and construed: Acts 1913, ch. 264. Cases cited and approved: Casey v. Scott, 82 Ark., 362;' Robertson v. Sichel, 127 U. S., 507; McKanna v. Kimball et al., 145 Mass., 555; Sawyer v. Corse, 17 Crat. (Va.), 230; Walsh v. Trustees N. Y. & Brooklyn Bridge, 96 N. Y., 427; Bowden v. Derby, 97 Me., 536.
132 Tenn. 620Ridenour v. Woodward (1915)
1. BAILMENT. Accommodation bailments. Degree of care. A bailee for the accommodation of the bailor is answerable only for his gross negligence or bad faith, the degree of care being measured, however, with reference to the nature of the article bailed, {Post, pp. 623, 624.) Cases cited and approved: Whitmore v. Haroldson, 70 Tenn., 312; Hotel Co. v. Holohan, 112 Tenn., 214; Marshall v. Railroad & Light Co., 118 Tenn., 254; Colyar v. Taylor, 41 Tenn., 372. 2. BAILMENT. Accommodation bailment. Liability of bailee. Plaintiffs delivered money and cheeks to defendant salesman to carry to another town and deposit to their credit. Being warned by the bookkeeper of the house for which the salesman traveled as to danger of carrying the money to his house, he made it his custom to deposit the funds in an iron safe of a drug company, because he arrived at the place of deposit after banking-hours. A deposit against which the merchants notified him they had drawn was placed in the drug company’s iron safe, and, when the salesman who had been otherwise engaged called for it two days later, it had disappeared. Held that, as every parting with an article bailed will not work a conversion, the salesman was not guilty of converting the fund, though he did not deposit it the earliest possible moment. (Post, pp. 624-629.) Cases cited and approved: Spooner v. Manchester, 133 Mass., 270; Fouldes v. Willoughby, 8 M. & W., 540; McNeill v. Brooks, 9 Tenn., 73; Harvey v. Epps, 12 Grat. (Va.), 153; Weller v. Camp, 169 Ala., 275; Kirtland v. Montgomery, 31 Tenn., 452. Cases cited and distinguished: Jenkins v. Bacon, 111 Mass., 373; De Tollenere v. Fuller, 1 Mill, Const. (S. C.), 117; Christian v. First Nat. Bank, 155 Fed., 705; Cicalla v. Rossi, 57 Tenn., 67.
132 Tenn. 630Lowry v. Southern Railway Co. (1915)
FROM HAMILTON. Appeal from the Circuit Court of Hamilton County. — • Nathan L. Bachman, Judge.
132 Tenn. 636Caughron v. Stinespring (1915)
FROM MeMINN. Appeal from the Chancery Court of McMinn County. — V. C. Aller, Chancellor.
132 Tenn. 649Long v. State (1915)
JURY. Separation. Effect. Notwithstanding accused consented to a separation of the jury, a conviction of felony by such jury cannot be upheld; Const., art. 1, see. 9, providing that in all criminal cases accused shall be entitled to a speedy public trial by an impartial jury, precluding separation of the jury in criminal prosecutions for felony or where the death penalty may be assessed. Cases cited and approved: Dunn v. State, 127 Tenn., 267; Stone v. State, 23 Tenn., 27; Hines v. State, 27 Tenn., 597; Troxdale v. State, 28 Tenn., 412; Wesley v. State, 30 Tenn., 602; Wiley v. State, 31 Tenn., 257; Armstrong v. State, 2 Okla. Cr., 567; Preston v. State, 115 Tenn., 343; Hobbs v. State, 121 Tenn., 413; King v. State, 87 Tenn., 304; King v. State, 91 Tenn., 617; Sherman v. State, 125 Tenn., .57. Case cited and distinguished: McLain v. State, 18 Tenn., 240. Codes cited and construed: Secs. 6462 (S. 1896). Constitution cited and construed: Art. 1, secs. 6, 8, 9.
132 Tenn. 655Lee v. State (1915)
1. CRIMINAL LAW. Trial. Custody of jury. In a capital case, it is improper and constitutes reversible error to permit tbe jury to go at large pending the trial, even though accused consent; this depriving him of his constitutional guaranties of fair and impartial trial by jury. (Post, pp. 656, 657.) Case cited and approved: Long v. State, 132 Tenn., 649. 2. RAPE. Evidence. Admissibility. In a prosecution for rape, evidence of other acts of intercourse between the prosecutrix and other men is admissible, not only on the question of the prosecutrix’s credibility, but on the probability of consent. (Post, pp. 657-662.) Cases cited and approved: Rex v. Hodgson, 14 L. R. A. (N. S.), 714; Benstine v. State, 70 Tenn., 169; Titus v. State, 66 Tenn., 132; People v. Abbot, 19 Wend. (N. Y.), 192; People v. Jackson, 3 Park, Crim. Rep., 391; State v. Johnson, 28 Vt., 512; Brennan v. People, 7 Hun. (N. Y.), 171; People v. Benson, 6 Cal., 221; Watry v. Ferber, 18 Wis., 501; Ford v. Jones, 62 Barb. (N. Y.), 484; State v. Patterson, 88 Mo., 88; Reg. v. Cockroft, 11 Cox C. C., 410; Reg. v. Riley, 16 Cox. C. C., 191; Rex v. Martin, 6 Car. & P., 562; McQuirk v. State, 84 Ala., 435; Rice v. State, 35 Fla., 236; Shirwin v. People, 69 Ill., 55; Bedgood v. State, 115 Ind., 275; State v. Cook, 65 Iowa, 560; State v. Jefferson, 28 N. C., 305; State v. Reed, 39 Vt., 417. Case cited and distinguished: State v. Ogden, 39 Or., 195. 3. RAPE. Evidence. Admissibility. In a prosecution for rape, evidence of prior intercourse between prosecutrix and accused is admissible to raise an implication of consent. (Post, pp. 657-662.)
132 Tenn. 663Alexander ex rel. Alexander v. Elkins (1915)
1. INJUNCTION. Criminal proceedings. Courts of equity have no Jurisdiction to enjoin threatened criminal proceedings under a statute exercising the State’s police power in a matter as to which the legislature has complete jurisdiction, though it be charged that the statute is invalid, that a multiplicity of actions thereunder will injure and destroy civil and property rights of complainant, and that the damages resulting will be irreparable, when complainant’s defense in a court having jurisdiction of the offense is adequate and unembarrassed. (Post, pp. 667, 668.) Acts cited and construed: Acts 1909, ch. 207. Case cited and distinguished: Kelly v. Conner, 122 Tenn., 339. 2. INJUNCTION. Criminal proceedings. Prosecutions under unconstitutional act. Where the father of a girl threatened her husband, whom she had left, with interminable’ criminal prosecutions under a statute which the supreme court had declared unconstitutional, unless he contributed to her support, having procured a justice of the peace who was willing to issue warrants for such husband’s arrest whenever demanded, such husband could restrain the father and justice from effecting such series of prosecutions, since the rule that courts of equity cannot .enjoin threatened criminal proceedings under a statute enacted by the legislature in the exercise of its police power has no application to prosecutions threatened under acts adjudged unconstitutional by the supreme court, as a warrant of arrest, charging a party with a violation of such an act, is absolutely void, and if by collusion between an officer and a private citizen the latter is suffered to procure warrants of arrest and the purpose is expressed by suck citizen to continue the procurement of false warrants if money demanded is not paid, and if the officer agrees to continue to issue them and to cause the defendant to he .arrested on them until he comply with the demand to pay money, such defendant is not relieved of the illegal persecution by the facts that the warrants in fact and law charge no crime, and that he has an adequate defense as against them in any court of competent jurisdiction. (Post, pp. 668-672.) Oases cited and approved: Ulster Square Dealer v. "Fowler, 58 Mise. Rep., 325; Poyer v. Des Plaines, 123 Ill., Ill; Wallack v. Society for Reformation of Juvenile Delinquents in City of New York, 67 N. Y., 23; West v. New York, 10 Paige (N. Y.), 539; Crighton v. Dahmer, 70 Miss., 602; Littleton v. Burgess, 14 Wyo., 173; Hall v. Dunn, 52 Or., 475; Denton v. McDonald, 104 Tex., 206; Kelly v. Conner, 122 Tenn., 339; Old Dominion Telegraph Co. v. Powers, 140 Ala., 220; Thompson v. Tucker, 15 Okl., 486; Sullivan v. San Francisco Gas & Electric Co., et al., 148 Cal., 368; N. O. Baseball & Amusement Co. v. City of New Orleans, 118 La., 228; Fritz v. Sims, 122 Tenn., 137; Fellows v. City of Charleston, 62 W. Va., 665; Mahoning, etc., Co. v. New Castle, 233 Pa., 413. 3. PLEADING. Demurrer. Admission. On demurrer the allegations of a bill must be taken as true. (Post, pp. 668-672.)
132 Tenn. 673Seay v. Georgia Life Insurance (1915)
1. INSURANCE. Liability insurance. Construction. “While acting under assured’s instructions.” Defendant insured plaintiff, a physician having in his employ two younger doctors as assistants, against loss from liability for bodily injuries or death suffered in consequence of error, mistake, or malpractice by any assistant in his employ “while acting under the assured’s instructions.” One of his assistants made a mistaken diagnosis, resulting in a judgment for damages against the physician. The diagnosis and treatment was left wholly to the assistant, and the physician apparently had no knowledge of the particular case and gave the patient no personal attention; the assistant merely acting according to previous general instructions and the custom which prevailed under the contract between himself and the physician. Held, that defendant was not liable, since the quoted words were intended to qualify defendant’s liability, and if they were treated as covering the physician’s general instructions, they 'would neither expand nor restrict the insurer’s liability, but would be altogether meaningless. (Post, p. 675.) 2. INSURANCE. Construction of policy. Though an insurance contract prepared by the company, when doubtful or ambiguous in its terms, will always be construed in favor of the insured, it should be construed, like other contracts, so as to give effect to the intention and express language of the parties. (Post, pp. 675-678.) Cases cited and approved: Travelers’ Ins. Co. v. Myers, 62 Ohio St., 529; Ward v. Maryland Casualty Co., 71 N. H., 262; Crouch v. Surety Co., 131 Tenn., 265.
132 Tenn. 679Vaught v. Virginia & Southwestern Railroad (1915)
DEATH. Federal employers’. liability act. Limitation. New action. Under the federal Employers’ Liability Act (Act Cong. April 22, 1908, ch. 149, 35 Stat. 65 [U. S. Comp. St. 1913, secs. 8657-8665]), giving a right of action for the death of a railroad employee while engaged in interstate commerce, which may he brought in the State courts conditioned on suit being brought within two years from the day the cause of action accrued, the limitation of the remedy is necessarily a limitation of the right to sue at all, so that Shannon’s Code, sec. 4446, providing that if an action is commenced within the time limited, and the judgment against plaintiff is rendered upon a ground not concluding his right of action, or the judgment for plaintiff is arrested or reversed, the plaintiff may commence a new action within one year, does not apply; and hence plaintiff, whose suit under the act, brought within two years, was terminated by a voluntary nonsuit, could not maintain a suit brought within one year from the termination of the former suit. Case cited and approved: Harrisburg v. Rickards, 119 U. S., 199. Cases cited and distinguished: Morrison v. B. & O. R. R., 40 App. D. C., 391; Gardner Lumber Co. v. Boomer et at, 106 C. C. A., 168. ' Code cited and construed: Sec. 4446 (S.).
132 Tenn. 685State ex rel. Webb v. Brown (1915)
1. JUDGES. Compensation. Shall. Where relator was. serving as judge of the juvenile court under Priv. Laws 1913, eh. 277, creating the juvenile court, and providing that the judge thereof should serve without compensation, he was entitled to the salary prescribed by the Act of 1915, since by that act the legislature performed its mandatory duty to provide a salary for such judge, under Const, art. 6, sec. 7, providing that judges “shall” receive a compensation, and did not increase the salary in violation of that section. (Post, pp. 687-690.) Acts cited and construed: Acts 1913, ch. 277. Cases cited and approved: The Judges’ Salary Case, 110 Tenn., 370; Webb v. Carter, 129 Tenn., 182; Rucker v. Superior, 7 W. Va., 661; Purcell v. Parks, 82 Ill., 346; State v. McDowell, 19 Neb., 442; Louisville v. Wilson, 99 Ky., 598. Case cited and distinguished: State ex rel. v. Burrow, 119 Tenn., 376. Constitution cited and construed: Const, art. 6, sec. 7. 2. COUNTIES. Juvenile court. Salary of judge. Payment by county. The Act of 1915, providing a salary for the judge of the juvenile court of Knox county, does not violate the provision of Const, art. 2, see. 29, that counties may he empowered to levy taxes for county purposes only, since the juvenile court iá a county forum, serving a county purpose. (Post, p. 690.) Constitution cited and construed: Const, art. 2, sec. 29.
132 Tenn. 691Sullivan v. Farnsworth (1915)
1. CORPORATIONS. Stockholders. Liability. Subscription. Where defendant did not formally subscribe for stock In a corporation, but merely receipted for, accepted, and held the certificates, he was nevertheless liable for the unpaid balance of the stock. (Post, pp. 696-698.) Cases cited and approved: Upton v. Tribileock, 95 U. S., 45; ' Chubb v. Upton, 95 U. S., 665; Sanger v. Upton, 91 U. S., 56; Jackson v. Traer, 64 Iowa, 469; Calumet Paper Co. v. Stotts, 96 Iowa, 147; Clevenger v. Moore, 71 N. J. Law, 148; Dunn v. Howe (C. C.), 96 Fed., 160; Barron v. Burrill, 86 Me., 66; Id., 86 Me., 72; Shickle v. Watts, 94 Mo., 41Q. 2. PLEADING. Objections. Cure. Pleading of adverse party. Statutes of other states. Although it is necessary to plead and prove the statutes of a foreign State in order to recover under them, plaintiff is relieved from doing so, if defendant pleads them and agrees that they control, since tlie defendant is thereby estopped from controverting them. (Post, pp. 699, 700.) Cases cited and approved: N. & C. R. Co. v. Sprayberry, 56 Tenn., 852; Railroad v. Foster, 78 Tenn., 351; Railway Co. v. Lewis, 89 Tenn., 235; Kelley Bros. v. Fletcher, 94 Tenn., 1; Harris v. Water & Lt. Co., 114 Tenn., 328; Mandel v. Swan, etc., Co., 154 111., 177; Ball v. Anderson, 196 Pa., 86; Rice V. Merrimack Hosiery Co., 56 N. H., 114; Salt Lake, etc., Bank v. Hendrickson, 40 N. J. Law, 62; Nashua, etc., Bank v. Anglo-Amer., etc., Co., 189 U. S„ 221. 3. CORPORATIONS. Stockholders. Holding without subscription. Where statutes provide for recovery of the unpaid balance on stock only in case of “subscription to or agreement for” the stock, the actual taking of the shares will support the action;, on express agreement being necessary. (Post, pp. 700, 701.) Case cited and distinguished: Barron v. Burrill, 86 Me., 72; 4. PLEADING. Requisites. Formal words. Fraud. Rev. St. Me. 1903, ch. 47, sec. 50, provides that stock may be issued in payment for services, and, in the absence of fraud, the judgment of the directors shall be conclusive as to the value of such services. Held, that a bill charging the issuance of stock to defendant to be without consideration sufficiently impeaches the consideration as fraudulent, although the word “fraud” is not used. (Post, pp. 701, 702.) 5. CORPORATIONS. Liability of stockholders. Jurisdiction. Laws of other states. Comity. Although, under the general rule that stockholders may be compelled to pay up their stock in full for the benefit of creditors, in Tennessee it must appear that other assets, when collected, are insufficient, and all holders of stock not fully paid up must be made parties, so as to apportion the loss equitably among them, nevertheless, where the stock is that of a foreign corporation, the relation of the holder being contractual and entered into in contemplation of the laws of the State of incorporation, those laws govern, and the courts of Tennessee will enforce the remedy they provide against a single stockholder,in so far as that remedy is not penal. (Post, pp. 703-707.) Cases cited and approved: Sweeney v. Railroad, 118 Tenn,, 297; Jones v. Whitworth, 94 Tenn., 602; Shields v. Clifton Land Co., 94 Tenn., 123; Cartwright v. Dickinson, 88 Tenn., 476; Railroad v. Parks, 86 Tenn., 560; Morrow v. Iron & Steel Co., 87 Tenn., 265; Chase v. Railroad Co., 5 Lea, 415; Kelley v. Fletcher, 94 Tenn., 1; Upton v. Tribilcock, 91 U. S., 47; Washburn v. Green, 123 U. S., 30; Appleton v. Turnbull, 84 Me., 72; Trust Co, v. Loan Co., 92 Me., 448; Simmons v. Taylor, 106 Tenn., 740; Adler v. Mil. Pat. Brick Mfg. Co., 13 Wis., 57; Patterson v. Lynde, 112 Ill., 196; Vick v. Lane, 56 Miss., 681; Pierce v. Construction .Co., 38 Wis., 258; Hadley v. Russell, 40 N. H., 109; Erickson v. Nesmith, 46 N. H., 371; Umsted v. Buskirk, 17 Ohio St., 114; Van Pelt v. Gardner, 54 Neb., 701; Clarke v. Cold Springs Opera House Co., 58 Minn., 16; Dunston v. Hoptonic Co., 83 Mich., 372; Woods v. Wicks, 75 Tenn., 40; Whitman v. National Bank, 176 U. S., 559. 6. CORPORATIONS. Organization. Powers. Other states. Rev. St. Me. 1903, ch. 47, sec. 6, providing for the incorporation of companies to carry passengers and freight in other States, and that “in all such cases the articles of agreement and certificate of organization shall state that such business is to be carried on only in States and jurisdictions when and where permissible under the laws thereof” is not void as attempting to create a corporation in one State in which it is prohibited to operate, but is merely restrictive of the right of such corporation to do business, limiting it to the States whose laws also permit its operation. (Post, p. 707.) Code cited and construed: Code 1903, ch. 47, sec. 6. 7. CORPORATIONS. Stockholders. Liability. Interest. The holder of corporate stock is liable for the unpaid balance thereon from the time he receives the stock; and hence the receiver, suing to recover such balance, may recover interest from the date of subscription, although he is not liable for interest where such principal liability is penal. (Post, pp. 707, 708.)
132 Tenn. 709Sanford-Day Iron Works v. Moore (1915)
MASTER AND SERVANT. Liability for injuries. Conformity to customary usage. A defense conclusive in character is not made out by a showing on the part of an employer that, in respect to appliances or places of work furnished by him, he has conformed to the usage obtaining among employers of like character in the district, ' and though proof of conformity to customary usage makes a prima-facie case of nonliability when nothing else appears, this case is subject to be rebutted by proof that the appliance where set for use, or the place of work, was one so inherently and flagrantly dangerous that it must have been obviously so to the employer. Cases cited and approved: Kilbride v. Carbon, etc., Co., 201 Pa., 552; Chattanooga Mach. Co. v. Hargraves, 111 Tenn., 476; Prattville Cotton. Mills v. McKinney, 178 Ala., 554; Winkler v. Power, etc., Co., 141 Wis., 244. Cases cited and distinguished: Titus v. Bradford, etc., R. Co., 136 Pa., 618; Geno v. Pall Mountain Paper Co., 68 Yt., 568; Wabash R. Co. v. McDaniels, 107 U. S., 461; Texas, etc., R. Co. v. Behymer, 189 U. S., 468; Railroad v. Wade, 127 Tenn., 154.