133 Tenn.

Volume 133 — Tennessee Reports

65 opinions

133 Tenn. 1Sharp v. Cincinnati, N. O. & T. P. Ry. Co. (1915)
1. EXECUTORS AND ADMINISTRATORS. Jurisdiction to appoint. Existence of “as sets.” “Chattel.” “Goods and chattels.” “Estate.” “Goods, chattels, or assets or any estate, real or personal.” “Chose In action.” Under Shannon’s Code, sec. 3935, providing that letters of administration may he granted upon the estate of a nonresident hy. the county court of any county where deceased had any goods, chattels, or assets or any estate, real or personal, at the •time of his death, or where the same may he when the letters are applied for, or where any suit is to he brought, prosecuted, or defended in which the estate is interested, an administrator may he appointed in the county in which the decedent was wrongfully killed, though the cause of action for the wrongful death is the only asset in the county, and there are no technical assets. Since the word "chattels” includes not only personal property in possession, but choses in action, the term "goods and chattels” is of very wide Signification, and includes choses in action. The term “choses in action” includes rights of action for tort. The word “assets,” as used in the administration statutes, though usually meaning items subject to payment of the debts of the decedent, is not wholly limited to this meaning, but has been applied to money collected by an administrator as damages for the wrongful killing of an intestate. The word "estate,” though in its primary and technical sense referring only to an interest in land, as used with reference to a decedent’s property, has acquired a wider application in a popular sense and refers to the entire mass of decedent’s property, both real and personal, while the words “goods, chattels, or assets or any estate, real or personal,” include every kind of property of any nature whatsoever, and are not limited to technical assets subject to the payment of debts. (Post, pp. 5-9.) Cases cited and approved: Pitts v. Curtis, 4 Ala., 350; McKee v. Judd, 12 N. Y., 622; Agee v. Saunders, 127 Tenn., 680; Thornton v. Mulguinne, 12 Iowa, 549; Bridgewater v. Bolton, 6 Mod., 106; O’Neil v. Carey, 8 U. C. & C. P., 339; Harrison v. Lamar, 33 Ark., 824. Cases cited and distinguished: Glass v. Howell, 70 Tenn., 50; Gourley v. Thompson, 34 Tenn., 387. Code cited and construed: Sec. 3935 (S.). 2. EXECUTORS AND ADMINISTRATORS. Jurisdiction-to appoint. Statutory provisions. “Estate.” The word “estate,” as used in Shannon’s Code, sec. 3935, subd. 4, authorizing the appointment of an administrator of the estate of a nonresident in any county where any suit is to be brought, prosecuted, or defended in which the estate is interested, means the whole legal entity which may be the subject of devolution on the legatees, devisees, heirs, or distributees of a decedent, under the laws of a State or government, which, under such laws, may be attacked or defended, or to obtain which, a suit may be brought. (Post, p. 9.) 3. DEATH. Actions for cause of death. Nature. The right of action for wrongful death given by Shannon’s Code, sec. 4025 et seq., is that which the deceased would have had if he had lived, and the recovery is in right of the deceased. (Post, pp. 9, 10.) Cases cited and approved: Davidson Benedict Co. v. Severson, 109 Tenn., 572; Stuber v. Railroad, 113 Tenn., 305. 4. DEATH. Actions for wrongful death. Law governing. A right of action for wrongful death is governed by the laws of the State where the injury occurred. (Post, pp. 10-16.) Acts cited and construed: Acts 1871, ch. 78, sec. 2; Acts 1908, ' ch. 317. Cases cited and approved: Nashville & Chattanooga R. R. Co. v. Eakin, 46 Tenn., 582; Nashville & Chattanooga R. R. Co. v. Sprayberry, 56 Tenn., 852; Id., 67 Tenn., 341; Hobbs v. Memphis & Charleston R. R. C'o., 56 Tenn., 873; Railroad v. Poster, 78 Tenn., 351; Whitlow v. N. C. ’& St. L. Ry. Co., 114 Tenn., 344; Erickson v. Pacific Coast S. S. Co. (C. C.), 96 Fed., 80; Owen v. Ray, 108 Fed., 32’0; Van Doren v. Pa. R. R. Co., 93 Fed., 260; Leman v. Baltimore & O. R. R. Co. (C. C.), 128 Fed., 191; Davidow v. Pa. R. R. Co. (C. C.), 85 Fed., 943; In re Coe’s Estate, 130 Iowa, 307; Louisville & Nashville R. R. Co. v. Whitlow’s Adm’r, 105 Ky., 1; Id., 114 Ky„ 470; C., O. &¡ S. W. R. R. Co. v. Higgins, 85 Tenn., 620; Bledsoe v. Stokes, 60 Tenn., 312; Flatley v. M. & C. R. R. Co., 56 Tenn., 230; Traf-ford y. Adams Express Co., 76 Tenn., 96; Loague v. Railroad,-91 Tenn., 458-460; Holston v. Coal & Iron Co., 95 Tenn., 521; Anderson v. Louisville & N. R. Co., 128 Tenn., 244; Railroad v, Herb, 125 Tenn., 408. Code cited and construed: Secs. 2291-2293 (1858); Sec. 4027 (S.). 5. STATUTES. Revisions and compilations. Construction. Though the substance of Shannon’s Code, sec. 3935, relative to the jurisdiction to appoint administrators of the estates of nonresidents was enacted prior to the Code of 1858, with which the right of action for wrongful death originated, it having been made a part of that Code along with the sections giving the right of action for wrongful death, they nlust be construed together as if they had originated with the Code, as that Code was a single enactment. (Post, pp. 16-18.) Acts cited and construed: Acts 1831, ch. 24; Acts 1841-42, ch. 69. Cases' cited and approved: Chapman v. State, 39 Tenn., 36; Brien v. Robinson, 102 Tenn., 157; State v. Runnels, 92 Tenn., 320; Trust Co. v. Weaver, 102 Tenn., 66; Padgett v. Duclctown, etc., Iron Co., 97 Tenn., 690. Cases cited and distinguished: Whitworth v. Ha'ger, 124 Tenn., 355. Code cited and construed: Sec. 3935 (S.); sec. 2203 (1858).
133 Tenn. 19Howard v. Nashville, Chattanooga & St. Louis Railway Co. (1915)
1. EXECUTORS AND ADMINISTRATORS. Jurisdiction to appoint. Existence of assets. An administrator may be appointed to bring an action for wrongful death wherever the defendant may be found, though the decedent was a nonresident and left no assets in the State other than such right of action, and though he sustained the injuries causing his death in another State, as the right of action itself is property and is transitory, and exists wherever the defendant may be found. (Post, p. 23.) Case cited and approved: Sharp, Adm’r., v. C., N. O. & T. P. Ry. Co., — Tenn., —. - 2. COURTS. Jurisdiction. Transitory actions. Actions for wrongful death. A right of action for wrongful death is transitory and may be enforced against the defendant wherever he may be found, provided it is not contrary to the policy of the forum and is allowed by the State wherein the injury occurred, except in those cases controlled by federal statutes. (Post, pp. 23-25.) 3. COMMERCE. Liability for injuries. Statutory provisions. The federal Employers’. Liability Act (Act April 22, 1908, ch. 149, 35 Stat. 65 [U. S. Comp. St. 1913, secs. 8657-8665]) in the cases to which it applies is necessarily supreme. (Post, pp. 25-35.) Cases cited and approved: Mondou v. New York, N. H. & H. R. Co., 223 U. S., 1; Brown v. Railroad Co., 97 Ky., 228; Findlay v. Railroad Co., 106 Mich., 700; Hutchins v. Railroad Co., 44 Minn., 5; Reiter-Connoly Mfg. Co. v. Hamlin, 144 Ala., 192; Washington Asphalt Block & Tile Co. v. Mackey, 15 App. D. C., 410; Western Union Telegraph Co. v. Lipscomb, 22 App. D. C., 104; Appeal of Jenkens, 25 Ind. App., 532; Mo. Pac. Ry. Co. .v. Bradley, 51 Neb., 596; Boston, etc., R. Co. v. Hurd, 108 Fed., 116; Mo. Pac. R. Co. v. Lewis, 24 Neb., 848; Re Mayo, 60 S. C., 401; Jordan v. Chicago, etc., R. Co., 125 Wis.j 581; Vance v. Southern Ry. Co., 138 N. C., 460; Richards v. Riverside Iron Works, 56 W. Va., 510; Fickeisen v. Wheeling Electrical Co., 67 W. Va., 335; Fann v. N. C. R. Co., 155 N; C., 136; Rivera v. Atchison, T. & S. F. Ry. Co. (Tex. Civ. App.), 149 S. W„ 223; Gulf, C. & S. F. R. Co. v. Beezley (Tex. Civ. App.), 153 S. W., 651; Eastern Ry. Co. of New Mexico v. Ellis (Tex. Civ. App;), 153 S. W., 701; Hartford & N. H. R. Co. v. Andrews, 36 Conn., 214; Bruce v. Cincinnati R. Co., 83 Ky., 174; Anderson v. R. Co., 210 Fed., 689; Dennick v. Railroad Co., 103 U. S., 11; Stewart v. B. & O. R. Co., 168 U. S., 445; Dougherty v. American Mc-Kenna Process Co., Ann. Cas., 1913D; Lamphere v. Oregon R. & Nav. Co., 47 L. R. A. (N. S.), 48-84. Cases cited and distinguished: In re Lowham’s Estate, 30 Utah, 436; Pullman Palace Car Co. v. Lawrence, 74 Miss., 782; Knight v. West Jersey R. Co., 108 Pa., 250; Eingartner v. Illinois Steel • Co., 94 Wis., 70; Nelson, Adm’r, v. Chesapeake & Ohio R. Co., 88 Va., 971; Southern Pacific Co. v. De Valle Da "Costa, 190 Fed., 689; M. P. R. R. Co. v. Lewis, 24 Neb., 848; Dennick v. Central R. R. Co., 103 U. S., 11. Case cited and disapproved: L. & N. R. R. Co. v. Herb, 125 Tenn., 408.
133 Tenn. 36Jackson v. Thornton (1915)
PROM JEFFERSON Appeal from tlie Chancery Court of Jefferson County. — II. N. Cate, Special Chancellor.
133 Tenn. 40Bivens v. State (1915)
FISH. Preservation. Statutes. Implied repeal. Acts 1897, oh. 57, made it unlawful to explode dynamite in any stream, lake, or pond, and made any violation a felony. Acts 1907, ch. 489, made it unlawful to kill or wound 'by the use of dynamite any fish in any stream, lake, river, or pond, and made any violation a misdemeanor. Defendant was convicted under a presentment under the 1897 statute. Held,, that the 1897 act was impliedly repealed by that of 1907, so that no conviction under it could be sustained. Acts cited and construed: Acts 1897, ch. 57; Acts 1907, ch. 489.
133 Tenn. 43Standard Knitting Mills v. Hickman (1915)
1. MASTER AND SERVANT. Liability for injuries. Failure to warrant. An employee,. working on a mangle, as she stepped down from the platform on which she worked to go hack of the machine, slipped on -a place where a scrubwoman had just put soapy water. Though she had worked on the mangle only a few hours, it, and the floor about it, were in view of her accustomed working place, and she knew that the scrubwoman mopped the floor about twice a week, and knew, also the route taken by the scrubwoman as she passed the mangle. Her attention had been directed to the machine, which was so hot that it would burn one’s hand, but on leaving the machine she had nothing to do but keep away from the machine. Held, that the danger of slipping was so simple and obvious that it was not incumbent on the employer to warn her of the danger, and it was immaterial that she had been absorbed in her work, as she . was relieved of this tension when she stepped down and away. (Post, pp. 44-49.) Cases cited and approved: Brewer v. Tennessee Coal, etc., Co., 97 Tenn., 615; Cudahy Packing Co. v. Marcan, 106 Fed., 645; Omaha Packing Co. v. Sanduski, 155 Fed., 897; Kline v. Abraham, 178 N. Y., 377; Kleinest v. Kunhardt, 160 Mass., 230; Murphy v. American Rubber Co., 159 Mass., 266. Cases cited and distinguished: Ferguson v. Phoenix Cotton Mills, 106 Tenn., 236; Thompson v. Norman Paper Co., 169 Mass., 416; Goudie v. Foster, 202 Mass., 226; Hattaway v. Atlanta Steel, etc., Co., 155 Ind., 507. 2. MASTER AND SERVANT. Liability for injuries. Unsafe “place” to work. The word “place,” within the rule requiring an employer to furnish a safe place of work, means 'the premises, or some part of the premises, where the work is done, and does not comprehend mere negligent acts of fellow servants rendering the place dangerous for the time being, as by way of some transient peril. {Post, pp. 49, 50.) Cases cited and approved: Southern Indiana R. Co. v. Harrell, 161 Ind., 689; Herman v. Port Blakely Mill Co. (D. C.), 71 Fed., 853; Haskell, etc., Co. v. Przezdziankowski, 170 Ind.* 1.
133 Tenn. 51Long v. Mickler (1915)
1. WILLS. Requisites. Execution. Witnesses. Where the testator wrote out his will, signed it, and on his request procured 'the signature of one witness without disclosing that it was a will, and that of another witness after disclosing it to he his will, it is valid, under Shannon’s Code, sec. 3895, providing that no will shall he good unless written in the testator’s lifetime and signed hy him and subscribed in his presence by two witnesses, although neither witness saw him sign or subscribed as witness in the presence of the other witness. (Post, pp. 53-55.) Cases cited and approved: White v. British Museum, 6 Bing., 310; Ellis V.-Smith, 1 Yes. Jr., 11; Wright v. Wright, 7 Bing., 457. Cases cited and distinguished: Simmons v. Leonard, 91 Tenn., 183; Osborn v. Cook, 11 Cush. (Mass.), 532. Code cited and construed: Sec. 3896 (S.). 2. WILLS. Execution. Witnesses. Unless publication of the contents of a will to the subscribing witnesses is required by statute, they need not be informed of ■the character of the document when they subscribe. (Post, pp. 55, 56.) Cases cited and approved: In re Claflin’s Will, 75 Vt., 19; Scott v. Hawk, 107 Iowa, 723; Watson v. Pipes, 32 Miss., 451.
133 Tenn. 57Lillienkamp v. Rippetoe (1915)
PROM KNOX. Appeal from the Circuit Conrt of Knox County to the Conrt of Civil Appeals, and by certiorari to the Conrt of Civil Appeals from the Snpreme Conrt.— Yon. A. Hueeakeb, Jndge.
133 Tenn. 65Bennett v. Hutchens (1915)
1. HUSBAND AND WIFE. After acquired property. Estates by the entireties. Where a deed of land is to a husband and wife, an estate therein is by the entireties, and not in common, so that, on the death, of one, the other takes the land absolutely. (Post, pp. 68, 69.) 2. HUSBAND AND WIFE. Estates by the entireties. Deed. Construction. Where a deed of land is to a husband and wife, it is immaterial that it does not show upon its face that they are husband and wife, or that it was, the intention of the grantor to create an estate by the entireties, but the common-law requires that the estate be by the entireties. (Post, pp. 69-71.) Cases cited and approved: Taul v. Campbell, 16 Tenn., 319; Ames v. Norman, 36 Tenn., 683; Johnson v. Husk, 46 Tenn., 114; Berrigan v. Fleming, 70 Tenn., 271; Shields v. Netherland, 73 Tenn., 193; McRoberts v. Copeland, 85 Tenn., 211;. Jackson, Orr & Co. v. Shelton, 89 Tenn., 82; Hopson v. Fowlkes, 92 Tenn., 697; Chambers v. Chambers, 92 Tenn., 707; Walker v. Bobbitt, 114 Tenn., 700; Beddingfield v. Estill & Newman, 118 Tenn., 39; Hiles v. Fisher, 144 N. Y., 306; Jordan v. Reynolds, 105 Md., 288; Pegg v. Pegg, 165 Mich., 228; In re Meyer, 232 Pa., 89; Wilson v. Frost, 186 Mo., 311. Case cited and distinguished: Cole Mfg. Co. v. Collier, 95 Tenn., 116. 13. HUSBAND AND WIFE. Estates by the entireties. Statutory provisions. Shannon’s Code, sec. 3677, providing that in all estates held in joint tenancy the share of the joint tenant dying shall descend to his heirs, instead of the other join tenant, does not abolish estates by the entireties, but is limited to estates held in technical joint tenancy. (Post, pp. 71, 72.) Acts cited and construed: Acts 1784, ch. 22, sec. 6. Codes cited and construed: Sec. 2010 (1858); sec. 3677 (S.). 4. HUSBAND AND WIFE. Estates by the entireties. Statute. Construction. Laws 1913, cii. 26, providing that married women shall be released from all .disability on account of coverture, and that the common law limiting their estates is abrogated, giving them all the rights of feme sole, does not affect the estates of married women held at the time of its passage, since it does not purport on its face so to do, and a statute will not be construed to alter the common-law further than it expressly declares or necessarily implies a change. (Post, pp. 72, 73.) Acts cited and construed: Acts 1913, ch. 26. Case cited and approved: Lillienkamp v. Rippetoe, 133 Tenn., 57. Cases cited and distinguished: State v. Cooper, 120 Tenn., 549; Wilson v. Frost, 186 Mo., 311.
133 Tenn. 74Cincinnati, N. O. & T. P. Ry. Co. v. Wright (1915)
1. RAILROADS. Actions for injury or death. Confusing instructions. In an action for the death of a person struck by a railroad train while standing at a point on a sharp curve, it was the theory of the company sustained hy proof that a south-hound train was so interposed between deceased and the engine which struck him that deceased and his companion could not he seen from the engine. Plaintiff requested a charge that, if deceased could have been seen on the track hy one on the lookout ahead before the view was cut off hy the south-hound train, the law required that he he seen, and, though the south-hound train subsequently cut off the view, it was the duty of those operating the train to .reduce the speed and bring the train under such control as to make certain that it could he stopped after he could again he seen and before striking him. The court so charged, with “the modification that, if deceased again appeared upon the track, it was the duty of those on the engine not to so control the train as to he certain that it could be stopped before striking deceased, but to sound the alarm, put down the brakes, and use every possible means to stop the train and prevent the accident! Held, that this instruction, with the modification, was at least confusing to the jury. (Post, pp. 77-79.) 2. RAILROADS. Injuries to persons on track. Keeping “lookout ahead.” Under Shannon’s Code, sec. 1574, providing that every railroad company shall keep the engineer, fireman, or some other person upon the locomotive always upon the "lookout ahead,” engine-men are not required, when on a curve, to look across the intervening space to the further end of the curve, thereby withdrawing the lookout from the track immediately ahead of the engine. (Post, pp. 79-81.) Cases cited and approved: East Tennessee, etc., R. Co. v. St. John, 37 Tenn., 525; Patton v. Railway, 89 Tenn., 370; Cincinnati, etc., Co. v. Brock, 132 Tenn., 477; Central, etc., Co. v. Yaughan, 93 Ala., -209. Code cited and construed: Sec. 1574 (S.). 3. RAILROADS. Injuries to persons on track. Rate of speed on curves. As a precaution against injury to persons walking on the track, hut not seen or known so to he, there is no duty to slacken the ordinary speed of a train approaching a curve in the open country, though the curve he in whole or in part in a cut or hidden from view hy a train going in the opposite direction on the concave side of the curve. (Post, pp. 81, 82.) Case cited and distinguished: Hoffard v. Illinois Cent. R. Co., 138 Iowa, 543.
133 Tenn. 83City of Memphis v. State ex rel. Ryals (1915)
1. CONSTITUTIONAL LAW. Construction. Under Const. U. S., Amend. 14, prohibiting the denial to any person of the equal protection of the law, and Const. Tenn., art. . 1, sec. 8, prohibiting the imprisonment or execution of any person, or depriving him of life, liberty, or property, except by judgment of his peers or the law of the land, and article 11, sec. 8, forbidding class legislation, the same rules will be applied to classifications therein as to the classifications made in legislative enactments, so that the basis for a classification must be natural, and not arbitrary or capricious, and must rest on some substantial difference; but the classification is not invalid merely because it does not depend on scientific or marked differences. (Post, pp. 88-99.) Acts cited and construed: Acts 1915, ch. 60. Cases cited and approved: State ex rel. v. Schlitz Brewing. Co., 104 Tenn., 730; Orient Ins. Co. v. Daggs, 172 U. S., 562. Cases cited and distinguished:' Motlow v. State, 125 Tenn., 547; Lindsley v. National Carbonic Gas Co., 220 U. S., 61. Constitution cited and construed: Art. 1, sec. 8; art. 11, sec. 8. 2. CARRIERS. Constitutional law. Class legislation. Regulation of jitneys. Private conveyances. Acts 1915, ch. 60, regulating jitneys as common carriers, and prohibiting their operation, except upon prescribed conditions, does not make an arbitrary classification between jitneys and privately owned automobiles, since the uses and character of operation of the two classes are distinct. (Post, pp. 99, 91.) 3. CONSTITUTIONAL LAW. Class legislation. Regulating jitneys. Street cars. Acts 1915, ch. 60, regulating jitneys as common carriers, and prohibiting their operation, except upon prescribed conditions, does not make an arbitrary classification between jitney busses and street railway cars, since the jitney runs upon no track, and is less substantial and more dangerous than the street car, thus presenting essential differences, properly the subject of classification. (Post, p. 91.) 4. CONSTITUTIONAL LAW. Class legislation. Regulation of jitneys. Taxicabs. Acts 1915, cb. 60, regulating jitneys as common carriers, and prohibiting their operation, except upon described conditions, does not make an arbitrary classification between jinteys and taxicabs, since taxicabs are for hire at a fare proportioned to the length of the trips of the several passengers, without regard to route, while the jitney carries passengers upon a designated route, and the investments in the two classes of machines are widely different. (Post, pp. 91-93.) Cases cited and approved:' The Taxicab Cases, 82 Mise. Rep., 94; Yellow Taxicab Co. v. Gaynor, 159 App. Div., 893; Fifth Ave' Coach Co. v. New York, 221 U. S., 467; Provident Institution v. Malone, 221 U. S., 660. Case cited and distinguished: St. John v. New York, 201 U. S., 633. 5. CARRIERS. Carriers of persons. “Jitneys.” A “jitney” is a self-propelled vehicle, other than a street car, traversing the public streets between certain definite points or termini, and, as a common carrier, conveying passengers at a five-eent or some small fare, between such termini and intermediate points, and so held out, advertised, or announced. (Post, pp: 93-95.) Case cited and distinguished: Ex Parte Cardinal (Cal.), 150 Pac., 348. 6. CONSTITUTIONAL LAW. Class legislation. Arbitrary classification. . Under the provisions of the constitution prohibiting class legislation, it is not sufficient to invalidate a statute merely to show points of similarity in the thing classified, and the thing ex-eluded from the classification; but it must he shown that the classification is unreasonable and impracticable. (Post, pp. 95-97.) Cases cited and approved: Mehlos v. Milwaukee, 156 Wis., 591; Central Lumber Co. v. South Dakota, 226 IT.- S., 157; People v. Coolidge, 124 Mich., 664; Gibbs v. Talley, 133 Cal., 373. 7. MUNICIPAL CORPORATION'S. Streets. Leglsatlve control. Jitneys. The legislature, being endowed with police power to regulate the .use of streets in public places, may prescribe the conditions with which jitneys, being common carriers, must comply in order to operate. (Post, pp. -97, 98.) Cases cited and approved: Fifth Ave. Coach Co. v. New York, 194 N. Y., 19; State v. Howell (Wash.), 147 Pac., 1159; Greene v. City of San Antonio (Tex. Civ. App.), 178 S. W., 6; Ex Parte Dickey (W. Va.), 85 S. E., 781.
133 Tenn. 99Memphis St. Ry. Co. v. Rapid Transit Co. (1915)
1. CONSTITUTIONAL LAW. Constitutional questions. Necessity of decision. The supreme court on appeal has jurisdiction and will determine the constitutionality of a law, although the cause can be decided upon other grounds, where the constitutional question is made in good faith and relied on in the case, since by Acts of 1907, ch. 82, establishing and defining the powers of the court of civil appeals, jurisdiction of that court is defeated by the presence of a constitutional question. (Post, pp. 104-107.) Acts cited and construed: Acts 1907, ch. 82; Acts 1915, ch. 60. Case cited and approved: Campbell Co. v. 'Wright, 127 Tenn., 1. 2. LICENSES. Carriers. Jitneys. Under Acts 1915, ch. 60, mailing jitneys common carriers, and requiring them, under ordinances of the cities or towns, to file bonds and perform the conditions of the statute and ordinances, a jitney company is altogether without right to do business on the streets of a city, where the city has passed no ordinance pursuant to the act, and the company has failed to procure any license or execute any bond under the act. (Post, pp. 107, 108.) Cas¿ cited and approved: City of Memphis et. al. v. State ex rel. Ryals, 133 Tenn., 83. 8. INJUNCTION. Right to invoke. Exclusive franchise. Where the plaintiff street railway company has a franchise from the city, its franchise is a property right, under which it can restrain any person from becoming a common carrier of passengers in competition with it without legislative or municipal authority, and for that purpose its franchise is exclusive against all persons upon whom similar rights have not been conferred. (Post, pp. 108-114.) ' Cases cited and approved: Raritan & Delaware Bay R. R. Co. v. Delaware & Raritan Canal Co., 18 N. J. Eq., 546; Penn. R. R. Co. v. Nat. R. .R. Co., 23 N. J. Eq., 441; Jersey City Gas Cov v. Dwight, 29 N. J. Eq., 242; Elizabethtown Gas Co. v. Green, 46 N. J. Eq.', 118; Patterson v. Wollmann, 5 N. D., 608; Green v. Ivey, 45 Fla., 338; Tugwell v. Ferry Co., 74 Tex., 480; Bartles-ville Elec. L. & Power Co. v. Bartlesville I. R. Co., 29 L. R. A. (N. S.), 77. 4. INJUNCTION. Right to remedy. Doubtful case. An injunction will not be awarded to protect an alleged right, except upon a clear case. {Post, pp. 114, 115.) Cases cited and approved: Geneva-Seneca Electric Co. v. Economic Power & Const. Co., 136 App. Div., 219; CofCeyville Min. & Gas Co. v. Citizens’ Natural Gas & Min. Co., 55 Kan., 173; Market St. Ry. Co. v. Pen. Ry. Co., 51 Cal., 583. 5. INJUNCTION. Right to remedy. Grounds. Where, under an act of the legislature, municipalities are authorized to regulate by ordinance, subject to the statute, the operation of jitney busses as common carriers, and the city counsel fails, to regulate, a street railway company can have the operation of jitney^ enjoined, since the city council might fail to act at all under the statute, and thus the rights of the company be unlawfully invaded. {Post, pp. 115, 116.) Case cited and approved: Levisay v. Delp, 68 Tenn., 415. Code cited and construed: Secs. 1697, 1703 (S.). 6. MUNICIPAL CORPORATIONS. Unauthorized operation of jitneys. Nuisance. Injunction. Where statute authorizes the regulation of jitneys, and prohibits their operation, except upon conditions named, and those conditions are not- fulfilled, but many jitneys are operated with consequent danger to persons and property, they constitute a nuisance, and may be enjoined on the bill of a private individual who can show special damage to himself. {Post, pp. 116-118.) Cases cited and approved: Weakley v. Page, 102 Tenn., 179; Richi v. Chattanooga Brewing Co., 1Q5 Tenn., 651; Weidner v. Friedman, 126 Tenn., 677; Sloss-Sheffield Steel Co. v. Johnson, 147 Ala., 384. 7. MUNICIPAL CORPORATIONS. Obstruction of streets. Right to remedy. Relief by an injunction against a nuisance by which the highway is obstructed need not be sought by an abutting owner, but may be had by any individual who can show special damage to himself. (Post, pp. 118-120.) Cases cited and approved: Eldert v. Long Island Elec. R. Co., 28 App. Div., 451; People’s Gas Co. v. Tyner,-131 Ind., 277; Keystone Bridge Co. v. Summers, 13 W. Va., 476. Case cited and distinguished: Draper v. Maekay, 35 Ark., 497.
133 Tenn. 121Childress v. State (1915)
INFANTS. Delinquent children. Statutes. Validity. Const., art. 1, see. 14,' declares that no person shall he put to answer any criminal charge, hut by presentment, indictment, or impeachment. Laws 1911, ch. 58, establishing juvenile courts, declares that any child under sixteen who violates any law shall he deemed a delinquent child, and may he committed to the State reformatory, and that in case the child is incorrigible and incapable of reformation he shall be remanded to the proper courts for the trial of criminal offenses. Held, that the statute is not in violation of'the constitution; the proceeding not being one penal in its nature, but merely for the protection of the delinquent child. Acts cited and construed: Acts 1911, ch. 58. Cases cited and approved: Ex Parte Januszewski (C. C.), 196 Fed., 123; Rooks v. Tindall, 138 Ga., 863; Marlowe v. Commonwealth, 142 Ky., 106; Mill v. Brown, 31 Utah, 473; Lindsay v. Lindsay, 257 Ill., 328. Case cited and distinguished: State ex rel. v. Kilvington, 100 Tenn., 227.
133 Tenn. 126Baker v. Dew (1915)
1. DESCENT AND DISTRIBUTION. Wife’s personalty. Husband’s rights. Statutes. Laws 1913, ch. 26, entitled “To Remove Disabilities of Coverture from Married Women,” and providing that they are fully emancipated from all such disabilities, and that the common-law with respect thereto and its effect, on the rights of the wife is totally abrogated, that marriage shall not impose any dis-bility on a woman as to the ownership, acquisition, or disposition of property, and that she shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of property as if unmarried, failing expressly, or by necessary implication, to make any disposition of her property after her death, in the event, of her failure to dispose of it, her personal property on her death, without such disposition, passes, jure mariti, to her husband, as it would had they, prior to passage of the act, made an antenuptial contract in the terms of the statute, under the law then existing. (Post, pp. 128-133.) ' Acts cited and construed: Acts 1913, ch. 26. Cases cited and approved: Parlow v. Turner, 132 Tenn., 339; Lillienkamp v. Rippetoe, 133 Tenn., -* Bennett et al. v. Hutchens et at, 133 Tenn., -; • Wade v. Cantrell, 38 Tenn., 346; Hollingsworth v. Mith (Miller), 37 Tenn., 472; Cox v. Scott, 68 Tenn., 305; Allen v. Walt, 56 Tenn., 242; Joiner v. Franklin, 80 Tenn., 422; Handwerker v. Diermeyer, 96 Tenn., 619; Rice v. McReynolds, 76 Tenn., 36; Sanders v. Forgasson, 62 Tenn., 249; Lane v. Farmer, 79 Tenn., 568; Jones v. Ward, 18 Tenn., 168; Hamrico v. Laird, 18 Tenn., 222; Tune v. Cooper, 36 Tenn., 296; D’Arcy v. Mutual Life Ins. Co., 108 Tenn., 567; Shugart v. Shugart, 111 Tenn., 179; Williford v. Phelan, 120 Tenn., 589; Mitchell V. Bank, 126 Tenn., 669. Case cited and distinguished: Prewitt v. Bunch, 101 Tenn., 723; Brown’s Adm’r v. Brown’s Adm’r, 25 Tenn., 126. 2. STATUTES. Construction. Altering common-law. A statute intended to alter the common-law will not be construed to alter it further than it expressly declares or is necessarily implied from the fact of it covering the whole subject-matter. {Post, pp. 133-136.) Case cited and approved: State v. Cooper, 120 Tenn., 549.
133 Tenn. 137City of Chattanooga v. Powell (1915)
FROM HAMILTON. Appeal from the Circuit Court of Hamilton County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court.— Nathan L. Bachman, Judge.
133 Tenn. 142Edwards v. Hambly Fruit Products Co. (1915)
BILLS AND NOTES. Defenses available against innocent holders. Under Negotiable Instruments Law (Acts 1899, ch. 94) sec. 60, providing that the maker of a negotiable instrument, by making it, .engages that he will pay it according to its tenor, and admits the existence of the payee and his then capacity to indorse, the innocent holder of a negotiable note may recover thereon, though the payee was a foreign corporation, which, though required to do so, had not complied with the law in respect to filing a copy of its charter of incorporation. Acts cited and construed: Acts 1899, ch. 94. Cases cited and approved: Orr’s Administrator v. Orr,'157 Ky., 570; First Nat. Bank of Massillon v. Coughron (Ch. App.), 52 S. AV., 1112; Young v. Gaus, 134 Mo. App., 166; Nat. Bank of Commerce v. Pick, 13 N. D., 74; Halsey v. Henry Jewett Co., 190 N. Y., 231.
133 Tenn. 145Meek v. Trotter (1915)
1. WILLS. Construction. Substitution. Death without issue. Though, where there is an immediate gift to a person with a gift over in, case of his death without issue, a death without issue during the life of the testator is contemplated, the rule does not apply to a limitation over after a devise in remainder. (Post, pp. 150-152.) Cases cited and approved: Yaughan v. Cator, 85 Tenn., 302; Meacham v. Graham, 98 Tenn., 190; Katzenberger v. Weaver, 110 Tenn., 620; Frank v. Frank, 120 Tenn., 669; Wilson v. Hays, 109 Ky., 821; McCormick v. MeElligott, 127 Pa., 230; Mayer v. Walker, 214 Pa., 440; Sumpter v. Carter, 115 Ga., 893. Case cited and distinguished: Cook v. Collier (Ch. App.), 62 S. W., 658. 2. WILLS. Provisions for surviving wife. Operation and effect of election. Where a widow, given a life estate in real property by the will of her husband, dissented from the will, the estates in remainder were thereby accelerated so that the remaindermen became entitled to the immediate possession and beneficial use of such of the property devised to the widow for life and to them in remainder, as was not assigned to the widow as dower; the legal effect of the dissent as regarded the widow’s life estate being the same as if she had died. (Post, pp. 152, 153.) Cases cited and approved: Armstrong v. Park’s Devisees, 28 Tenn., 195; Latta v. Brown, 96 Tenn., 343. 3. WILLS. Provisions for surviving wife. Operation and effect of election. A testator gave a life estate in certain real estate to his wife, and provided that after her death certain parts of such real estate should go to his daughters D. and F.,' a granddaughter and a grandson; it being further provided that upon the death of the granddaughter, or the daughter F. without issue, the 133 Tenn. 10 property given them should vest in the daughter D. and her bodily heirs. After certain money legacies, the will gave all other moneys, notes, bonds, and chattels to the children of D. The widow dissented from the will and her dower was laid off in amounts not proportioned to the several estates in remainder, a larger part of the property given to F. being taken than of the property given to the other remaindermen, while the child’s portion and the year’s support allotted to the widow were taken out of property that would otherwise have passed under the legacy to the children of D. Held, that F. was entitled to contribution from the other remaindermen to equalize the inequality due to the assignment to the widow . of a disproportionate part of the real estate devised to her in remainder. (.Post, pp. 153, 154.) Case cited and approved: Pittman v. Pittman, 27 L. R. A. (N. S.) 605. 4. WILLS. Provisions for surviving wife. Operation and effect of election. D.’s children, even assuming that the legacy to them was a residuary legacy, were entitled to have the realty turned back by the widow’s renunciation sequestered during the life of the widow for their indemnity, as assuming that residuary legatees are not entitled to such relief, unless the will shows that they were preferred objects of the testator’s bounty, the gifts over after the death of F. and the granddaughter without issue, showed that they were the peculiarly preferred objects of the testator’s bounty. (Post, pp. 154-158.) Cases cited and approved: Darden v. Hatcher, 41 Tenn., 513; Sandoe’s Appeal, 65 Pa., 314; Batione’s Estate, 136 Pa., 317; McReynolds v. Counts, 9 Grat. (Va.), 242;'Firth v. Denny, 2 Allen (Mass.), 468; Hinkley-v. House of Refuge, 40 Md., 461; Estate of Vance, 141 Pa., 201. Case cited and distinguished:1’ Jones v, Knappen, 63 Vt., 391. 5. WILLS. Provisions for surviving wife. Operation and effect of election. The payments to F. by the other remaindermen should be continued only during the widow’s life, and not throughout F.’s life. (Post, p. 158.)
133 Tenn. 159Jones v. Coal Creek Mining & Manufacturing Co. (1915)
1. LIMITATION OF ACTIONS. Disabilities. Nonresidence. Removal of disabilities. Effect. Under Shannon’s Code, sec. 4448, providing that persons beyond the limits of the United States and the territories thereof when the cause of action accrued shall he excepted from the operation of the statute of limitations, nonresident plaintiffs cannot maintain their action based upon a cumulative disability, but can rely only upon their own disability, and not upon a disability of their ancestor in interest upon whose death primary disability ceased. (.Post, pp. 165-167.) Cases cited and approved: Guión v. Anderson, 27 Tenn., 298; Weisinger v. Murphy, 39 Tenn., 675; Patton v. Dixon, 105 Tenn., 97. Code cited and construed: Sec. 4448 (S.). 2. LIMITATION OF ACTIONS. Disabilities. Nonresidence. Exceptions. Under Shannon’s Code, sec. 4448, providing that persons beyond the limits of the United States and the territories thereof when the cause of action accrued shall be excepted from,the operation of the statute of limitations, no change of citizenship for removal of the disability is required; but if the persons excepted by the statute at any time come within the limits of the United States or its territories, they are no longer protected by the statute. (Post, pp. 167, 168.) Case cited and approved: Bond v. Jay, 7 Cranch., 350. 3. LIMITATION OF ACTIONS. Exceptions. Burden of proof. While the burden of proof is on the party asserting the- bar of the statute of limitations to show that his opponent is barred, when such showing is made, then the burden shifts to the other party to show that he has been at all times within an exception of the statute. (Post, pp. 168, 169.) Cases cited and approved: Sou. Coal & Iron Co. v. Schwoon, 124 Tenn., 176; Shropshire v. Shropshire, 15 Tenn., 167; Ap-person v. Pattison, 79 Tenn., 484; Alvis v. Oglesby, 87 Tenn., 182. 4. LIMITATION OF ACTIONS. Nonresidence of plaintiff. Evidence. In an action in which the two plaintiff trustees relied on the exception of absence from the country to save their cause of . action from the statute of limitations, evidence held not to show that their several visits to the United States were never concurrent, so that they failed to bring themselves -within the exception of the statute. (Post, pp. 169, 170.) 5. LIMITATION OF ACTIONS. Exceptions. Repeal of excepting statutes. Effect. Validity. Acts 1901, ch. 15, abolishing all 'exceptions of statutes limiting commencements of suits and actions in favor of persons beyond the limits of the United States and the territories thereof, removes the exception of Shannon’s Code, sec. 4448, providing that persons beyond the limits of the United States and the territories thereof when'the cause of action accrued shall be excepted from the operation of the statute of limitations, and is valid, since' it does not cut off all rights of action immediately, but gives to persons formerly under disability the full period of the statute of limitations after the removal of the disability in which to bring action. (Post, pp. 170-173.) Acts cited and construed: Acts 1901, ch. 15. Cases cited and approved: McG-ahey v. State of Virginia et al., 135 U. S., 662; Lewis v. Lewis, 7 How. (U. S.), 776. Case cited and distinguished: Slover v. Union Bank, 115 Tenn., 347. 6. CONSTITUTIONAL LAW. Statutes. Construction in favor of validity. A statute destroying the exceptions to the statute of limitations will be so construed that it may be-held constitutional, if this can be clone reasonably, in order to preserve the validity of the statute. (Post, pp. 173, 174.) 7. CONSTITUTIONAL LAW. Limitation of actions. Obligation of contracts. Change of statute. The statute of limitations does not impair the obligation of contracts, but takes away the remedy only, -and so may affect the remedy on contracts or rights made or acquired before, as well as those made after, its passage, provided that as to contracts made before its passage it must give the parties a reasonable time in which to sue. (Post, pp. 174, 175.) 8. LIMITATION OF ACTIONS. Time of bringing suit. Effect. Where plaintiffs were under the disability of nonresidence, and therefore not subject to the statute of limitations, and their exception was removed by statute, within two years of which time they brought their action, their cause is saved, so as to prevent subsequent acquisition of title by adverse possession against them, in spite of the fact that it is subsequently dismissed, when a new action is brought within one year from such dismissal. (Post, pp. 175, 176.) 9. EJECTMENT. Actions. Pleadings. Sufficiency. Pleadings in ejectment were sufficient, where title was averred upon one hand and denied upon the other, regardless of failure to plead details. (Post, pp. 176-178.) Acts cited and construed: Acts 1819, ch. 28; Acts 1851-52, ch. 152. Cases cited and distinguished: Coal & Iron Co. v. Schwoon, 124 Tenn., 176; Drewery et al. v. Nelms, 132 Tenn., 254; Graham’s Heirs v. Nelson, 24 Tenn., 605; Gross v. Disney, 95 Tenn., 592. Code cited and construed: Secs. 4970, 4980 (S.). 10.ADVERSE POSSESSION. Color of title. Deeds. Sufficiency. The deeds relied upon by the defendants as color of title to property in question in ejectment were sufficient to show color of title, since when considered with prior grants they purported to convey a fee, though, in fact, the deeds in question were but quitclaim deeds. (Post, pp. 178-181.) Cases cited and distinguished: Briar Hill Collieries v. Gernt, 131 Tenn., 54-2; Coal & Iron Co. v. Schwoon, 124 Tenn., 176. 11. ADVERSE POSSESSION. Possession of portion of tract. Effect. Where one seeking to establish title by adverse possession shows possession of a portion of the tract under color of title, his possession extends constructively to the whole tract. (Post, pp. 181, 182.)
133 Tenn. 183Jones v. Coal Creek Min. & Mfg. Co. (1915)
1. ADVERSE POSSESSION. Requisites. Burden of proof. One seeking to skow title by adverse possession has the burden to make out by clear and positive testimony such adverse possession as will bar the real title. {Post, pp. 184, 185.) 2. ADVERSE POSSESSION. Requisites. Burden of proof. Although instruments under which an adverse claimant made his claims did not appear, but it was established that there was such a claim, another claimant, seeking in an action to establish title by adverse possession, has the burden of clearing up the questions raised by the existence of the other claim, and of showing its invalidity. {Post, p. 185.) 3. ADVERSE POSSESSION. Requisites. Evidence. Burden of proof. In spite of the principle that a tenant cannot attorn to another, so as to hold adversely to his landlord without notice to him, where it appeared that a tenant had claimed adversely to his landlord because of certain suits involving the landlord’s title, one seeking to establish adverse possession to the same land, as against both the landlord and the tenant and their assignees, has the burden of showing positively that the tenant had no title by adverse possession. {Post, pp. 185, 186.) 4. ADVERSE POSSESSION. Requisites. Exclusive possession. Effect of double claims. Although the true owner of land against whom an adverse claim is asserted has presumptive title to all land not within the actual inclosures of the adverse claimant, that is not true of a mere trespasser; and possession by two adverse claimants, neither of which has title, neutralizes the possession of each in the overlap, priority of possession creating no advantage. {Post, pp. 186, 187.) Cases cited and approved: Hnnnicutt v. Peyton, 102 TJ. S., 333; White v. Lavender, 37 Tenn., 648; Berry v. Walden, 6 Tenn., 174-177; McClung v. Ross, 5 Wheat. (U. S.), 116; Creech v. Jones, 37 Tenn., 631; Waddle v. Stuart, 36 Tenn., 535; Norvell v. Gray, 31 Tenn., 96, 107; Iron Co. v. Railroad, 131 Tenn., 236; Walker v. Pox, 85 Tenn., 154.
133 Tenn. 188Sams v. State (1915)
1. CRIMINAL LAW. Pleas. Necessity of plea. Where the record failed to show that a plea of not guilty was interposed, and there was nothing in the transcript from which an implication might arise that such a plea was filed, a verdict and judgment were nullities as there was no issue for the jury to try. (Post, pp. 191, 192.) Cases cited and approved: Link v. State, 50 Tenn., 252; Wallace v. State, 72 Tenn., 309; Lynch v. State, 99 Tenn., 124; Muse v. State, 106 Tenn., 181. Code cited and construed: Sec. 7173 (S.) 2. CRIMINAL LAW. Bill of exceptions. Necessity. A plea, when stricken, ceased to he a part of the record, and to make it a part of the record so that it could he reviewed, • it was necessary to incorporate it into a hill of exceptions, together with the court’s action in respect to it. (Post, pp. 192, 193.) 3. INFANTS. Crimes. Criminal procedure. “Delinquent Child.” Where the evidence showed without dispute that defendant was under sixteen at the time of his arrest and at the time of the court’s action on a motion in arrest of judgment, it should have sustained the motion and transferred the cause and the custody of defendant to the juvenile court under Acts 1911, eh. 58, defining a “delinquent child” as any child under sixteen who violates any law of the State,, and providing that, when a child under sixteen is arrested, he shall he taken directly before the juvenile court, and that, if he is taken before a justice of the peace or police magistrate, or any other official or court having jurisdiction of the alleged offense, it shall be the duty of such court or official to transfer the cause to the juvenile court, and the officer having the child in charge shall take him before that court. (Post, pp. 193-197.) 4. INFANTS. Crimes. Criminal procedure. Acts 1911, ch. 58, sec. 9, provides that, when a child under sixteen is adjudged a delinquent child, he shall be deemed a ward of the juvenile court, which may, in its discretion, retain jurisdiction and control of such child until he arrives at the age of twenty-one, and that any child committing a misdemeanor or felony, and found to be a delinquent child, and thereafter found by the court to be incorrigible and incapable of reformation or dangerous to the welfare of the community, may, in the court’s discretion, be remanded to the proper court of the county in which the crime was committed and tried for such crime. Section 10, provides that, when a child under sixteen is arrested, he shall be taken directly before the juvenile court, or, if he is taken before a- justice of the peace or police magistrate, or any other official or court having jurisdiction over the alleged offense, it shall be the duty of such justice, court, or official to transfer the case to the. juvenile court, and the officer having the child in charge shall take the child before that court, which shall proceed to hear and dispose of the case. Eeld, that where, though it appeared that defendant was under sixteen at the time of his arrest and at the time of his motion in arrest of judgment, the circuit court failed to transfer the cause and the custody of the . child to the juvenile court, its failure to do so did not* defeat the jurisdiction of the juvenile court, and that court subsequently had jurisdiction to deal with the child, though he was then over sixteen; the custody which the circuit court and its officers had of defendant being regarded as held for the juvenile court. (Post, pp. 193-197.) Acts cited and construed: Acts 1911, ch. 58, séc. 9.
133 Tenn. 198Watson v. State (1915)
1. CRIMINAL LAW. Evidence. Opinion. Insanity. In a criminal case, a hypothetical question intended to elicit opinion evidence as to defendant’s’ sanity, is incompetent, unless addressed to an expert on insanity. (Post, pp. 200-202.) Case cited and approved: Ashby v. State, 124 Tenn., 684-723. 2. CRIMINAL LAW. Evidence. Insanity. Qualification of expert. Where a medical practitioner, testifying in a criminal case, admitted that he had read of insanity only in such hooks as were possessed by the ordinary practitioner, that he had made no special study of mental disease, and did not regard himself as so well posted on insanity as on typhoid fever, pneumonia, and such general diseases, he was not qualified as an expert on the subject. (Post,' pp. 200-202.) 3. CRIMINAL LAW. Evidence. Opinion. Insanity. Form of question. In a prosecution for forgery, where a medical witness was asked the question, “Taking into consideration what you know of defendant’s ancestors and his family, and what you know of him personally, and then taking into further consideration the further fact, if it be a fact (stating certain facts assumed to have been shown by the evidence), state whether or not, in your judgment, defendant had a sound mind,” such question was improper, and the answer thereto properly excluded, since it called for the witness’ opinion, based not only on the facts stated, but also on what the witness knew of the defendant personally, his family and ancestors. (Post, pp. 200-202.) 4. CRIMINAL LAW. Intent. Insanity. Where defendant forged indorsements to a note, having sense enough to know that his act was a violation of law, he was punishable, though believing that Providence would intervene to prevent his detection and punishment, yet one so deficient in mind that he has no sense of right or wrong, nor capacity to reason about the quality of his act and no consciousness of wrongdoing, is not guilty of crime in committing a criminal act, since he has no criminal intent. {Post, pp. 202-216.) Cases cited and approved: Johnson v. State, 100 Tenn., 252-259; Commonwealth v. Rogers, 48 Mass.^ 500; Guiteau’s Case, 10 Fed., 161; Reynolds v. United States, 98 U. S., 145. Cases cited and distinguished: Mahon v. State, 127 Tenn., 535-549; Bond v. State, 129 Tenn., 75; Stuart v. State, 60 Tenn., 177. 5. FORGERY. Sufficiency of evidence. In a prosecution for forging indorsements, evidence held sufficient to sustain verdict of guilty. {Post, pp. 202-216.)
133 Tenn. 217Spitzer v. Knoxville Iron Co. (1915)
1. DEATH. Widow’s compromise after administrator’s appointment. Effect. A widow whose husband had been killed in defendant’s mine through the defendant’s negligence had the right to compromise the claim after she had waived her right to administer and after the plaintiff had actually qualified as administrator of the decedent, as her superior right to control the-claim by compromising it or by bringing suit thereon herself could not be impaired by his qualification, but continued until she in - some manner waived it, and as her waiver of the right to administer was not tantamount to a waiver of her prior right to sue or to compromise. (Post, pp. 220-222.) Cases cited and approved: Greenlee v. Railroad Co., 73 Tenn., 418; Stephens v. Railway, 78 Tenn., 448; Webb v. Railway C'o., 88 Tenn., 119; Holder v. Railroad Co., 92 Tenn., 142; Prater v. Marble Co., 105 Tenn., 496; Railroad v. Acuff, 92 Tenn., 348. 2. DEATH. Compromise by widow. Attack. __ An attack upon the widow’s compromise of an action against his employer for her husband’s wrongful death on the ground-of fraud practiced on her in procuring it could only be made by her, and could not be made by the administrator subsequently suing for the benefit of the widow and children. (Post, p. 222.)
133 Tenn. 223Salmon v. Southern Railway Co. (1915)
1. COMMERCE. Injury to servant encaged in superintendence. A railroad employee at the shop of defendant railway, an interstate carrier, where it huilt and repaired cars used by intrastate and interstate commerce, and which at times were in no service at all, and where it painted its cars, the paint for which was brought in large quantities to its freight depot two miles from the shop, whence, after a carload had accumulated, it was hauled out to the shops, and the paint placed in a storehouse to he drawn for use, who had the superintendence of the unloading of the paint from the car, but nothing to do with its use, and who, among Ms general duties, looked after the issuance of the iron from the iron house to the various shops in the yard and superintended the unloading of iron and issuing it or pointing it out when called for, and who, after directing a number of men how to unload a car of paint, turned his back and was talking to another person about the iron when he was struck and fatally injured by a barrel of paint which slipped from the skid by reason' of workman’s negligence, was then engaged in superintending the unloading so far as that was interstate commerce. (Post, pp. 228, 229.) 2. COMMERCE. Employers’ liability act. Railroad employee. “Interstate commerce.” Such employee, while directing the unloading of barrels of paint from the car, or while standing near talking' with another person about a pile of iron, also within the scope of his duties, was not doing any act or duty having important connection with interstate commerce, and hence was not “engaged in interstate commerce” within the federal Employers’ Liability Act April 22, 1908, ch. 149, 35 Sat., 65 (TJ. S. Comp. St. 1913, secs. 8657-8665), so as to entitle his* widow to recover for his death from the negligence of his fellow servants. (Post, pp. 229-237.) Cases cited and distinguished: North Carolina R. Co. v. Zachary, 232 ti. S., 248; Pedersen v. Delaware, etc., R. Co., 229 U. S., 146; St. Louis, S. F. & T. Ri Co. v. Seale, 229 XL S., 156; North Carolina R. Co. v. Zachary, 232 TJ. S., 248; Illinois Central R. Co. v. Behrens, 233 TJ. S., 473; New York Cent. & Hudson R. Co. v. Carr, 238 TJ. S., 260; Illinois Cent. R. Co. v. Rogers, 221 Ped., 52.
133 Tenn. 238Shipp v. Belt Railway Co. (1915)
1. RAILROADS. Farm crossings. Construction. Jurisdiction. The chancery court has jurisdiction to compel a railroad company to make a grade crossing to allow an owner of land on both sides of the track to pass from one side to the other. (Post, p. 242.) Code cited and construed: Sec. 2419 (S.). 2. RAILROADS. Farm crossings. Statutory provisions. Shannon’s Code, sec. 2419, providing that when land on both sides of a track is owned by the same proprietor, convenient crossings shall be made and kept up at the expense of the corporation, covers crossings over railroad lines together with side tracks, spur tracks, and switch yards. (Post, pp. 242, 243.) Case cited and distinguished: Chalcraft v. Railroad Co., 113 Ill., 88. 3. RAILROADS. Farm crossings. Right to maintain. Where a proprietor owns land on both sides of a railroad track, no crossing will be ordered at a point which would directly and materially imperil the safety of transportation, the rights of the public being paramount to those of the individual. (Post, p. 243.) 4. RAILROADS. Crossings. Expense of construction. Where a proprietor owns land on both sides of a railroad track, a crossing will not be ordered' constructed at a point where the cost of construction and maintenance will be out of all proportion to the benefits. (Post, pp. 243, 244.) 5. RAILROADS. Crossings. Rights of owner. Estoppel. An owner of land on both sides of a railroad track, who conveyed an additional strip for a right of way for switch tracks, cannot, after having had the land reconveyed to him, compel the railroad company to construct a crossing where no provision therefor was made in the conveyance. (Post, pp. 244-246.)
133 Tenn. 247Preston v. Moore (1915)
1. TRUSTS. Constructive trusts. Misappropriation of property. ■Where defendant, a salesman employed in complainant’s mercantile establishment, appropriated to his own use merchandise and money belonging to complainant, and purchased and improved real property therewith, complainant was entitled to look to such real property as being held under a constructive trust, the absence of the conventional relation of trustee and cestui que trust being no obstacle to the granting of equitable relief, and the facts showing, if such showing was necessary, that full trust and confidence and ample power over the receipt and handling of funds and merchandise were given defendant by complainant. (Post, pp. 249-255.) Cases cited an'd approved: Union Bank v. Baker, 27 Tenn., 447; Edwards v. Culberson, 111 N. C., 342; Pascoag Bank v. Hunt, 3 Edw. Ch., 583; Bank of America v. Pollock, 4 Edw. Ch., 215. Cases cited and distinguished: Campbell v. Drake, 39 N. C., 94; Newton v. Porter, 69 N. T., 133; Riehl v. Evansville Foundry Association, 104 Ind., 70. 2. HOMESTEAD. Exception from exemption. Constructive trusts. Misappropriation of property. A person, who, by reason of the misappropriation of another’s property and investment thereof in real estate, was a trustee ex maleficio for the person whose property was appropriated, was not entitled to a homestead-in such real estate as against the cestui que trust. (Post, pp. 255, 256.) Case cited and approved: Gordon v. English, 71 Tenn., 634.
133 Tenn. 257Westborne Coal Co. v. Willoughby (1915)
1. MASTER AND SERVANT. Injuries to servant. Relation. License. A servant who is temporarily laid off, and goes upon his master’s .premises to assist another servant in getting his tools is not “employed,” but is a mere licensee, so that his administrator cannot recover for his death except upon a showing of willful or malicious injury. (Post, pp. 261-263.) Cases cited and approved: White v. Railroad, 108 Tenn., 739; Railroad v. Meaeham, 91 Tenn., 428. 2. NEGLIGENCE. New dangers. Duty. Where a licensee is injured by a sudden or new peril, the owner' of the premises is under duty to warn him of the danger if he has notice of it. (Post, pp. 263-266.) Cases cited and approved: Ellsworth v. Metheney, 104 Fed., 119; Felton v. Aubrey, 20 C. C. A., 436; Railroad v. Fain, 80 Tenn., 35; Fleming v. Railroad, 106 Tenn., 374; Trivette v. Railroad, 212 Fed., 641; Murch v. Johnson, 203 Fed., 1. Case cited and distinguished: Escabnna Mfg. Co. v. O’Donnell, 212 Fed., 648. 3. NEGLIGENCE. Active negligence. Duties to licensees. There is no duty to a licensee upon a landowner over whose property he has been accustomed to go, to arrange his property to safeguard the licensee his only duty being to give timely warning of danger, and to do no act willfully to injure the licensee. (Post, pp. 266-267.) Cases cited and approved: O’Brien v. Union Freight R. Co., 36 L. R. A. (N. S.), 492; Louisville, etc., R. R. Co. v. Bryan, 107 Ind., 51; Williams v. Nashville, 106 Tenn., 533. 4. NEGLIGENCE. Licensees. Custom. The owner oí a business may, as to licensees, operate it in the customary way, though that be .negligent, unless he knows that they may be injured by his negligence, or are in danger, or by their habits may become endangered. {Post, pp. 267, 268.) Cases cited and approved: Indian Refining Co. v. Mobley, 134 Ky., 822; Batchelor v. Fortescue, L. R., 11 Q. B. Div., 474; Larmore v. Crown Point Iron Co., 101 N. Y., 391; Weitzmann v. Barber Asphalt Co., 190 N. Y., 452. 5. NEGLIGENCE. “Active negligence.” What constitutes. Active negligence includes all inadvertent acts causing injury to others, resulting from failure to exercise ordinary care, and all acts the effects of which are unforeseen through want of proper attention. {Post, p. 268.)
133 Tenn. 269Bashor v. Bowman (1915)
1. EMINENT DOMAIN. Private road. Statutes. Constitution-, ality. Shannon’s Code, sec. 1634', provides that: “When the lands of any person shall be surrounded or inclosed by the lands of any other person or persons who refuse to allow . . . such person a private road to pass to or from his . . , lands, .it shall be the duty of the county court, on petition of such person ... to appoint a jury of view, who shall, on oath, view the premises, and lay off and mark a road through the land of such person or persons, . . . and report the same to the next court, which court shall have power to grant an order to said petitioner to open such road, not exceeding fifteen feet wide, and keep the same in repair.” Section 1617, pro- - vides: “All roads and ferries that have been laid out or appointed, agreeably to law, or that shall be so laid out and appointed, are to be deemed public roads and ferries.” Held, ■ that section 1634 is not unconstitutional as taking private property for private use without just compensation, since the use declared by section 1617 is a public use. (Post, pp. 272-274.) Acts cited and construed: Acts 1868-69. Cases cited and approved: Bice v. Alley, 33 Tenn., 61; Henderson v. Lexington, 22 L. R. A. (N. S.), 104; Brewer v. Bowman, 9 Ga., 37; Robinson v. Swope, 12 Bush (Ky.), 21; Roberts v. Williams, 15 Ark., 43. Case cited and distinguished: Clack v. White, 32 Tenn., 540. Code cited and construed: Code 1858, see. 1812; sec. 1617 (S.). 2. EMINENT DOMAIN. Roads. Character of way. That a highway declared to be public by statute is used chiefly by a private individual does not make it a private highway, where the whole public has the right to use it. (Post, pp. 274, 275.) Acts cited and construed: Acts 1868-69, ch. 14. Cases cited and approved: Railroad v. Transportation Co., 128 Tenn., 277; State, etc., v. Bishop, 39 N. J. Law, 226; Sherman v. Buick, 32 Cal., 241; Denham v. Bristol County, 108 Mass., 202; In re Hickman, 4 Har. (Del.), 580; McWhirter v. Cockrell, 39 Tenn., 9. 3. EMINENT DOMAIN. Roads. Character. Cost of maintenance. That a highway declared by statute to he public is opened and maintained at private expense does not detract from its public character, nor does the fact that the statute, authorizing the creation of the road as a highway, refer to it as a public road. (Post, pp. 275, 276.) Cases cited and approved: Sherman v. Buick, 32 Cal., 241; In re Hickman,'4 Har. (Del.), 580; Latch County v. Peterson, 3 Idaho, 398; Denham v. Bristol County, 108 Mass., 202; Shaver v. Starrett, 4 Ohio St., 494; Ferris v. Bramble, 5 Ohio St., 109; Allen v. Stevens, 29 N. J. Law, 509; Wolcott v. Whitcomb, 40 Vt, 40.
133 Tenn. 277Johnson City v. Weeks (1915)
FROM WASHINGTON. Appeal from the Chancery Court of Washington County. — Hal H. Haynes, Chancellor.
133 Tenn. 286Battle v. Claiborne (1915)
1. REFORMATION OF INSTRUMENTS. Requisite evidence. A court of equity will not exercise its powers of reforming a written instrument except upon clear; certain, and satisfactory evidence placing the propriety of reformation beyond reasonable controversy. (Post, pp. 291-302.) Case cited and approved: Johnson v. Johnson, 67 Tenn., 261. Cases cited and distinguished: Talley v. Courtney, 48 Tenn., 715; Perry v. Pearson & Anderson, 20 Tenn., 431-439. 2. MORTGAGES. Deeds. Evidence. Sufficiency. Where complainants, claiming through their father, sought the cancellation of a deed from him to C. and of a deed from C. to grantor’s wife separately, as a cloud upon their title on the ground that the first deed was a mortgage which had been shown in the recitals of two subsequent deeds to the land fully paid after the execution of the deed, to the wife by C. as executed and delivered by C. to the grantor, evidence held insuffieent to support a decree for cancellation. (Post, pp. 291-302.) 3. ESTOPPEL. Deeds. Formal sufficiency. Consideration. Recital. When binding. Where a deed is sufficient in form to pass title to the grantee, ' and purports to have been made for a valuable consideration, the grantor and his heirs at law are estopped thereby to show that a valuable consideration was not paid by the grantee, where there is no fraud on grantee’s part, and the rights of innocent purchasers or creditors of the grantor have not intervened. (Post, pp. 302-304.) Case cited and approved: Woods v. Bonner, 89 Tenn., 411. Cases cited and distinguished: Henderson v. Overton, 10 Tenn., 394; Wilson v. Bass., 6 Tenn., 110; Ruffin v. Johnson, 52 Tenn., 604; Martin v. Maine Central R. Co., 83 Me., 100; Demorest v. Hopper, 22 N. J. Law, 599; Condit v. Bigalow, 64 N. J. Eq., 504; King v. Coleman, 98 Tenn., 564. 4. DEEDS. Formal sufficiency. Recital of consideration. Want of consideration. Title. Even though such a deed is admittedly without consideration, it passes title to the grantee. (Post, pp. 302-304.) 5. HUSBAND AND WIFE. Conveyance to wife. Formal sufficiency. Recital of consideration. Title. Where one conveyed land in fee to C., who in turn conveyed it to grantor’s wife, by a deed containing apt words for the creation of a separate estate, such estate was vested in the wife unincumbered by any rights of the husband, though, as a matter of fact, there was no payment of the valuable consideration recited in each deed. (Post, pp. 304-306.) Cases cited and distinguished: Barnum v. Le Master, 110 Tenn., 640; Ferguson v. Booth, 128 Tenn., 259. 6. HUSBAND AND WIFE. Deed to wife. Delivery to husband. Recording by husband. Knowledge of wife. Delivery and acceptance. The execution and .delivery by C. to the grantor of the deed to the wife and its delivery by the grantor to the register for record with knowledge that it was afterwards recorded and an assent to and claim under the deed by the wife with knowledge that it had been so made and recorded, was sufficient evidence to warrant the conclusion that there was a delivery to and acceptance by the wife. (Post, pp. 306, 307.) Cases cited and approved: McEwen v. Bamberger, 71 Tenn., 576; McEwen v. Troost, 33 Tenn., 186; Nichol v. Davidson County, 3 Tenn. Ch., 547; Nailer v. Young, 75 Tenn., 735; Mason & Holman v. Holman, 78 Tenn., 315; Davis v. Cross, 82 Tenn., 641; Davis’ Adm’r v. Garrett, 91 Tenn., 148; Land Co. v. Hilton, 121 Tenn., 308; Scott v. Bank, 123 Tenn., 275; Swiney v. Swiney, 82 Tenn., 316. 7. ESTOPPEL. Failure to assert title. Acts in derogation. Estoppel. In an action by heirs of a grantor who conveyed land in fee to C., who in turn conveyed it to grantor’s wife separately, seeking cancellation of the deeds as a cloud on their title, on the ground that such deed by the grantor to C. was a mortgage which had been subsequently paid, as recited in a deed from C. to the grantor, made subsequent to the conveyance by C. to the wife, the facts that the wife did not claim the land, but spoke of it as the husband’s, that she had urged him to will it to her with power of final disposition, and, failing this, induced him to devise her a life estate therein, with remainder over to his kin, did not estop her or those claiming under her from asserting title, where she was justified under the whole transaction and representations made to her in believing that title was in the husband. (Post, pp. 307-312.) Cases cited and approved: Barnum v. Le Master, 110 Tenn., 640; Ferguson v. Booth, 128 Tenn., 259; Parkey v. Ramsey, 111 Tenn., 302. Case cited and distinguished: Morris v. Moore .& Hancock, 30 Tenn., 433. ' Code cited and construed: Sec. 4246 (S. 8. HUSBAND AND WIFE, Separate estate. Conveyance to husband. Under Shannon’s Code, sec. 4246, empowering married women to dispose of their separate estates, a married woman can pass title to her husband. (Post, pp. 307-312.) 9. WILLS. Provision for wife. Election. Failure. Estoppel. Where a widow failed within a year to dissent from her husband’s will as provided for by Shannon’s Code, see. 4146, the provision of the will for her being a life estate in land owned by her through a conveyance in fee from the husband to C. and a conveyance by C. 4;o her, she having been led by her husband to believe, as did he, that the title was subsequently revested'in him by certain deeds of the same property made by C. to him, reciting that the original deed to C. was a mortgage which had been fully paid, the widow’s next of kin and heirs at law were not concluded by the failure on the widow’s part to so dissent and her acceptance of the provision of the will in derogation of her title, since the statute, being designed to secure to the wife a proper provision from her husband’s property by an election made within a time limited in the interests of the speedy administration of estates, does not apply under such facts. (Post, pp. 312-321.) Cases cited and approved: Reid v. Campbell, 19 Tenn., 378; McDaniel v. Douglas,. 25 Tenn., 221; McClung v. Sneed, 40 Tenn., 218; Williams v. Gray, 41 Tenn., 105; Waddle, Adm’r v. Terry, 44 Tenn., 51; Waterbury v. Netherland, 53 Tenn., 512; Demoss v. Demoss, 47 Tenn., 256; Parkey v. Ramsey, 111 Tenn., 302; Rowlett v. Rowlett, 116 Tenn., 458; Smart & Wife v. Water-house, et al., 18 Tenn., 95; Owens v. Andrews, 17 N. M., 597; Bible- v. Marshall, 103 Tenn., 324. Case cited and distinguished: Walker v. Bobbitt, 114 Tenn., 700. Code cited and construed: See. 4146 (S.). 10. WILLS. Disposition of wife’s property by husband’s will. Acceptance by wife. Election. Nor did the* acceptance by the widow of the provision of the will in derogation of bier title constitute an election by her whereby she and her representatives were estopped to assert title to the land under the doctrine that, where one by will •undertakes to dispose of the property of another by giving to the owner thereof other benefits in lieu, the acceptance of the provision is an election by the beneficiary estopping him to assert title, since the will treated the property as belonging to the husband absolutely, and the wife’s acceptance of its provision in the belief that title was in the husband -could not be an election. (Post, pp. 312-321.) 11. ESTOPPEL. Predecessors in title. Warranty. When not binding. Where a-grantor conveyed property to C. in fee, and C. conveyed it to the .grantor’s wife, the wife’s representatives were not estopped to assert the title thus vested in her because of any estoppel which might have arisen against C. by reason of the special warranty in a subsequent deed to the property given by C. to the grantor that “the said C. hereby warrants the title to said land against the lawful claims of all persons claiming by, through, or under him, . . . ” or by reason of a recital in such deed that the original deed from grantor to C. was a mortgage which has been fully paid where the special warranty deed was procured by the husband in an effort to becloud the title vested in the wife by the original transaction, which was also had through his procurement. (Post, p. 321.) Cases cited and approved: Ferguson v. Booth, 128 Tenn., 259; Barnum v. Le Master, 110 Tenn., 640. 12. HUSBAND AND WIFE. Joint possession with wife. Effect. Where a husband conveyed' land in fee to C., and C. conveyed to the grantor’s wife, thereby vesting title in her, a claim of title by the husband to the land under subsequent deeds from C. to him could not ripen into title by adverse possession as against the wife, where the land was timber land, and such possession as was had was jointly with the wife, and not adverse as to either. (Post, pp. 321, 322.)
133 Tenn. 323Burnett v. Layman (1915)
1. CERTIORARI. Review. “Final judgment.” Acts 1907, ch. 82, provides that certiorari shall not be issued by the supreme court to the court of civil appeals after a lapse of ninety days from the final judgment or decree of that court. During the 1914 term of the court of civil appeals, after affirmance of a judgment for defendant plaintiff died, and a suggestion of death being made, it was attempted to revive the suit in the name of plaintiff’s widow. A petition for certiorari prosecuted in the name of the widow and next of kin was denied by the supreme court and at the 1915 term of the court of civil appeals, an administrator having qualified, the suit was revived in the name of the administrator, who brought certiorari. Shannon’s Code, sec. 4570, declares that the intervention of a term between-the death of a party and the qualification of a personal representative shall not work an abatement or discontinuance of the suit, nor shall the suit abate or discontinue for the death of either party until the second term after the death has been suggested and entry to that effect made of record. Held, that the suggestion of death prevented the judgment of the court of civil appeals from becoming “final,” though the attempted revival was a nullity, and hence the final judgment of the court of civil appeals was the order of revivor in the administrator’s name, so petition for certiorari could be taken within ninety days therefrom. (Post, pp. 327, 328.) Acts cited and construed: Acts 1907, ch. 82, sec. 8. Case cited and distinguished: Burnett v. Layman, 130 Tenn., 423. Code cited and construed: Secs. 4025-4029; 4570; 4579. 2. PHYSICIANS AND SURGEONS.' Care. While a physician does not guarantee the cure of his patients, and is not liable for an error in diagnosis, yet in performing an operation he is employing surgery as an art, and is liable for negligence. (Post, pp. 328, 329.) Cases cited and approved: Alder, Admr. v. Buckley, 31 Tenn., 69; Wood v. Clapp, 36 Tenn., 65; Staloch v. Holm, 100 Minn., 276; Gillette v. Tucker, 67 Ohio St., 106; Whitesell v. Hill, 37 L. R. A., 834. 3. PHYSICIANS AND SURGEONS. Actions for malpractice. Evidence. Sufficiency. In an action for injuries received when defendant sounded the urethra, evidence .held, to warrant a finding of negligence. (Post, p. 329.) 4. PHYSICIANS AND SURGEONS. Malpractice. Negligence. A physician after he had seriously injured his patient in sounding the urethra, causing keen suffering and bleeding, is not warranted in leaving his patient without giving immediate relief, for a doctor who undertakes the treatment of a case may not abandon his patient until the facts justify cessation of attention or he gives the patient due notice that he intends to quit the • case and an opportunity to procure other medical attention. (Post, pp. 329, 330.) Cases cited and approved: Dale v. Donaldson L. Co., 48 Ark., 188; Barbour v. Martin, 62 Me., 536; Ballou v. Prescott, 64 Me., 305; Williams v. Gilman, 71 Me., 21; Dashiell v. Griffith, 84 Md., 363; Becker v. Janinski, 15 N. Y. Supp., 675; Lathrope v. Flood (Cal.), 63 Pac., 1007.
133 Tenn. 331Volunteer State Life Ins. v. Dunbar (1915)
1. INSURANCE. Life companies. Right to erect building. Shannon’s Code; sec. 2272, authorizes life companies to purchase and hold any real estate necessary for the transaction of the corporate business. Acts 1907, ch. 458, entitled an act to regulate the investment of the funds of domestic life companies, provides in section 3 that such companies may acquire land such as shall be requisite for convenient accommodation in the transaction of business, but that all other lands shall be disposed of. Held, that the directors of such companies should be given considerable latitude in determining the character of the building which shall be erected for a corporate home, and they may erect a large office building worth more than the combined capital stock and surplus of the company, not all of which is then necessary for the needs of the company for that will tend, where the land is very valuable, to reduce their rents. (Post, pp. 334-341.) Acts cited and construed: Acts 1907, ch. 458; Acts 1881, ch. 126. Cases cited and approved: Fourth Nat. Bank v. Stahlman, 132 Tenn., 367; Brown v. Schlier, 118 Fed., 981; People v. Pullman Palace Car Co., 175 Ill., 125; Rector v. Hartford Deposit Co., 190 Ill., 380; Simpson v. Westminster Palace Hotel Co., 8 Ho. Lords Cas., 712; Farmers’, etc., Bank v. Western, etc., Co., 215 Pa., 115; Barrow v. Nashville, etc., Turnpike Co., 28 Tenn., 304; Searight v. Payne, 1 Tenn. Ch., 186; Reynolds v. Craw-fordsville First Nat. Bank, 112 U. S., 405. Code cited and construed: Sec. 2272 (S.). 2. INSURANCE. Life companies. Power of insurance commissioner. While Shannon’s Code, sec. 5165 et seq., authorizes state officiate to call in question before the courts any excess of corporate action, and Acts 1907, ch. 458, sec. 3, subsec. 4, declares that life companies shall dispose of land not necessary for the accommodation of their business within two years and shall not hold property for a longer period without a ■ certificate from the insurance commissioner extending time for the sale of such property, the consent of the insurance commissioner to the acquisition of land and the erection of a building for the home office is not necessary. (Post, pp. 341, 342.) Cases cited and approved: State ex rel. v. Turnpike Co., 3 Tenn. Ch., 163; State ex rel. v. Turnpike Co., 112 Tenn., 617; Insurance Co. v. Craig, 106 Tenn., 624. Code cited and construed: Sec. 5165 (S.).
133 Tenn. 343Smith v. Haire (1915)
1. WILLS. Probate. Costs. An executor 'who in good faith propounds a will for probate is entitled to his costs and attorney’s fees whether the will is set aside or not. {Post, pp. 346, 347.) Oases cited and approved: Lassiter v. Travis, 98 Tenn., 330; Douglass v¡ Baber, 83 Tenn., 665; Smith v. Harrison, 49 Tenn., 230; Bowden v. Higgs, 77 Tenn., 346; Cornwell v. Cornwell, 30 Tenn., 487; Delegise v. Morrisey, 142 Wis., 234; In re Jones, 166 Cal., 147. 2. WILLS. Probate. Costs:' Where a will was procured by fraud and undue influence, and the executrix who propounded it for probate was the chief beneficiary, and was responsible for the fraud, she is not entitled to costs on the theory that she propounded the will in good faith. {Post, pp. 346, 347.) 3. BANKS AND BANKING. Certificates of deposit. Construction. “Or.” Notwithstanding Acts 1899, ch. 94, see. 8, subd. 5, declaring that a promissory note may be made payable to one or some of several payees, a certificate of deposit payable to a husband or wife, naming them, must, in view of the fact that the husband used the word “or” as synonymous with “and,” be construed as payable to the husband and wife. {Post, pp. 347-351.) Acts ©ted and construed: Acts 1899, ch. 94, subsec. 5, sec. 8. Cases cited and approved: Ransom v. Rutherford County, 123 Tenn., 1; Bird v. State, 131 Tenn., 518; Blanchenhogan v. Blundell, 2 B. & Aid., 417; Carpenter v. Farnsworth, 106 Mass., 561; Walrad v. Petrie,*4 Wend. (N. Y.), 575; Musselman v. Oahes, 19 Ill., 81; Willoughby v. Willoughby, 5 N. H., 244; Spaulding v. Evans, Fed. Cas. No. 13, 216; Walrad v. Petrie, 4 Wend. (N. Y.), 575; Quinby v. Merritt, 30 Tenn., 439; Estate of William Parry, 188 Pa., 33; Farrelly v. Emigrant Sayings Bant, 92 App. Div., 529. 4. HUSBAND AND WIFE. Obligations. Survivorship. Where an obligation is in favor of a husband and wife such joint security or chose in action survives to the wife as against the personal representative of the husband, though the consideration therefor passed from the husband. (Post, pp. 351, 352.) Cases cited and approved: Johnson et al. v. Lusk, Exr., et al., 46 Tenn., 113; McMillan v. Mason & Sherrill, 45 Tenn., 263; Pile v. Pile, 74 Tenn., 508. 5. HUSBAND AND WIFE. Wife’s choses in action. Reduction to possession. That a husband who had a certificate of deposit made payable to himself and wife retained it in his possession does not show a reduction to possession destroying the wife’s rights of sur-vivorship. (Post, pp. 351, 352.) 6. HUSBAND AND WIFE. Wife’s choses in action. Reduction of possession. Where a husband who had a certificate of deposit made payable to himself and wife made a will carrying with it disposition of such certificate,, the execution of the will, which instrument was ambulatory and did not speak until the husband’s death, did not amount to a reduction of the chose in action to possession, destroying the wife’s right of survivorship. (Post, pp. 352-357.) Cases cited and approved: McElhatton v. Howell, 5 Tenn., 19; Cox v. Scott, 68 Tenn., 305; Rice v. MeReynolds, 76 Tenn., 37; Smith v. Smith, 98 Tenn., 102; Prewitt v. Bunch, 101 Tenn., 723; Swiney v. Swiney, 82 Tenn., 316; Swails v. Bushart, 39 Tenn., 561; Johnson v. Johnson, 103 Tenn., 32; Nash v. Nash, 2 Maddock, 133; Blount v. Bestland, 5 Yes., 515. Cases cited and distinguished: Dummer v. Pitcher, 2 My. & K., 262; Pile v. Pile, 74 Tenn., 512.
133 Tenn. 358McCravy v. State (1915)
1. HOMICIDE. Offenses. Evidence. Sufficiency. In a prosecution for assault with intent to commit murder in the first degree, evidence held, insufficient to warrant conviction. (Post, pp. 366, 367.) 2. CRIMINAL LAW. Evidence. Expert testimony. In a prosecution for assault with intent to commit murder in the first degree, a medical expert, while qualified to testify as to the range of the hullet, is not qualified to testify that the prosecuting witness, who was found with the revolver in her hand, could not have inflicted the shot herself, for that was the ultimate question for the jury, and any person reasonably familiar with firearms could draw as accurate a conclusion as the medical expert. (Post, pp. 367-369.) Case cited and approved: Telephone & Telegraph Co. v. Mill Co., 129 Tenn., 374.
133 Tenn. 370Gilbert v. Ashby (1915)
1. FRAUDULENT CONVEYANCES. Sale in bulk. Partnership property. Notice to Individual creditors. While notice of sale in bulk of a firm’s stock in trade to one of the partners should have been given the individual creditors of the selling partner, they cannot attack it as fraudulent; payment of the partnership creditors, assumed by the buyer, consuming the whole stock. (Post, pp. 371, 372.) Cases sited and approved: Daly v. Drug Co., 127 Tenn., 412; Ma-honey-Jones Co. v. Sams Bros., 128 Tenn., 207; Fecheimer-Keifer Co. v. Burton, 128 Tenn., 682; Buck Stove Co. v. Johnson, 75 Tenn., 282; Fowlkes v. Heirs & Creditors of Bowers, 79 Tenn., 144; Jackson Insurance Co. v. Partee, 56 Tenn., 296; Carver Gin & Machine Co. v. Bannon & Co., 85 Tenn., 712. 2. FRAUDULENT CONVEYANCES. Consideration. Husband and wife. The undertaking by a wife to personally care for her husband’s mother is consideration for his conveyance to her, attacked as fraudulent, of property which had been conveyed to him in consideration that he would care for his mother. (Post, pp. 372-374. Case cited and approved: Carpenter v. Franklin, 89 Tenn., 142.
133 Tenn. 375State ex rel. Estes v. Goodman (1915)
1. WILLS.Probate. Probate in common form. A chancery court has jurisdiction to set aside the probate of a ■will in common form, where procured through fraud. (.Post, pp. 379-381.) Case cited and distinguished: State v. Lancaster, 119 Tenn., 638. Codes cited and construed: Code 1857-58, ch. 6, secs. 2138-2144; secs. 3825-3837, ch. 6 (S.). 2. WILLS. Will contest. Evidence. In a proceeding where the validity of a will was in issue, evidence held to show that the will was not procured through fraud. (Post, pp. 381-402.) 3. WILLS. Validity. Personal property. To he a valid disposition of personal property, a will need not he attested as required by Shannon’s Code, sec. 3895, declaring that no will shall he sufficient to convey an . interest in lands unless signed by the testator and subscribed by two disinterested witnesses. (Post, pp. 402-404.) 4. WILLS. Validity. Personal property. While the execution of a will must be proven by two witnesses, or it is not sufficient to pass title to personal property, it is not necessary that such witnesses be subscribing or attesting witnesses. (Post, pp. 402-404.) Cases cited and approved: Suggett v. Kitchell, 14 Tenn., 425; Moore v. Steele, 29 Tenn., 563; Jones v. Arterburn, 30 Tenn., 97; Davis v. Baugh, 33 Tenn., 478; Johnson v. Fry, 41 Tenn., 101; Morris et al. v. Swaney et ah, 54 Tenn., 591; Franklin v. Franklin, 90 Tenn., 44; Reagan v. Stanley, 79 Tenn., 316-325. Code cited and construed: Sec. 3895 (S.). 5. WILLS. Validity. Personal property. A legatee of personal property is not incompetent by reason of his interest, to prove the execution of the will; his interest going only to his credibility. (Post, pp. 404, 405.) Cases cited and approved: Moore v. Steele, 29 Tenn., 563; Johnson v. Fry, 41 Tenn., 101; Franklin v. Franklin, 90 Tenn., 44; Beadles v. Alexander, 68 Tenn., 644; Orgain v. Irvine, 100 Tenn., 194. 6. WILLS. Review. Presumptions. Where the probate court admitted to probate in common form a will of personality, there is a presumption, in the absence of evidence to the contrary, that there was sufficient evidence to warrant its probate, and that presumption is not overthrown by a showing that some of the witnesses in favor of the will did not see its execution. (Post, p. 406.) 7. WILLS. Validity. Evidence. In a proceeding where the validity of a will was involved, evidence held to warrant a finding that the testator had sufficient mental capacity. (Post, pp. 406-411.) 8. WILLS. Validity. Condition of testator. The bodily infirmities of a testator will not render his will invalid. (Post, pp. 406-411.) Cases cited and distinguished: Smith v. Harrison, 49 Tenn., 230-247; Nailing v. Nailing, 34 Tenn., 630. 9. WILLS. Validity. Testamentary capacity. That a testator who dictated his will while in his last illness made grammatical errors, and may have used expressions which were not applicable to his estate, does not show his want of mental capacity. (Post, p. 411.) 10. WILLS. Construction. Bequest. The intent of the testator will he given effect, and, where he referred to one of the beneficiaries by name • different from her real name, she is entitled to the bequest; it appearing the testator always addressed her in that name. (Post, p. 412.) Cases cited and approved: Thompson v. McKisick, 22 Tenn., 631; Lynch v. Burts, 48 Tenn., 600; 'Williams v. Williams, 18 Tenn., 20; Seay v. Young, 39 Tenn., 418; Massie v. Jordan, 69 Tenn., 646; Jobe v. Dillard, 104 Tenn., 668. 11. WILLS. Awarding of costs. Right to. Where the State claimed property by way of escheat asserting that deceased died intestate without heirs, and persons claiming to he heirs set up their rights adverse to claimants under the will, neither the State nor the rival claimants, the will being sustained-were entitled to cost. (Post, pp. 412, 413.)
133 Tenn. 414Giles County v. Marshall County (1915)
1. COUNTIES. Partition. Constitution. The provision of the Const, art. 10 sec. 4, that where a new county is established by carving territory from old territories, no part of an existing county shall be taken to form a new county without the consent of two-thirds of the qualified voters in such part taken, does not apply, where a portion of one county is, by the legislature, removed and added to an already existing county. (Post, pp. 417, 418.) Acts cited and construed: Acts 1915, ch. 384. Case cited and approved: Cocke v. Gooch, 52 Tenn., 294. Constitution cited and construed: Art. 10, sec. 4. 2. COUNTIES. Partition. Statutes. Const, art. 10, sec. 4, providing for removing of territory from existing counties, and formation of new counties, and declaring that no line of such county shall approach the courthouse of any old county from which it may he taken nearer than eleven miles, applies where a strip of land is removed from one county and added to another; and Priv. Acts 1915, ch. 384, carving a strip from Giles county and adding it to Marshall county, is invalid, as the line of Marshall county as advanced is nearer than eleven miles of the courthouse of Giles county. (Post, pp. 418, 419.) Cases cited and approved: Goteher v. Burrows, 28 Tenn., 585; Cheatham county v. Dickson county, 39 S. W. 734; McMillan v. Hannah, 106 Tenn., 689; Union County v. Knox County, 90 Tenn., 641. 3. COUNTIES. Partition. Statutes. As the court cannot presume on the intent of the legislature (Priv. Acts 1915, ch. 384) which removed from Giles and added to Marshall county a strip of territory, which, in some places, brought the line of Marshall county within eleven miles of Giles county courthouse, the act cannot be sustained by forcing hack the line of Marshall county in those places where it came within eleven miles of the county courthouse. (Post, pp. 419-422.) Cases cited and approved: Maury County v. Lewis County, 31 Tenn., 236; Bridgenor v. Rodgers, 41 Tenn., 260.
133 Tenn. 423Walker v. Vandiver (1915)
1. ABATEMENT AND REVIVAL. Pending action. Abandonment. What constitutes. Where process in a former action was returned unserved, and plaintiff did not sue out alias writs from term to term, the original action was abandoned and discontinued within Shannon’s Code, sec. 4445, declaring that the suing out of a summons is the commencement of an action if the action is continued by the issuance of alias process from term to term, and so the second action could not be abated on the ground of a former action pending. (Post, pp. 425, 426.) 2. ABATEMENT AND REVIVAL. Former action pending. Defendant, a citizen of one county, removed to another county to avoid service, and was served in an action begun there. Thereafter he returned to the county of his residence and plaintiff then begun a new action in that county, defendant being duly served. He filed a plea in abatement and, after the filing of such plea, the first action was dismissed. Held, that in such case the dismissal occuring before the filing of the replication to the plea, the plea must be denied. (Post, pp. 426-432.) ' Cases cited and approved: Knight’s case, 2 Ld. Raym., 1014; Wright v. Keifer, 131 Ill. App. 298; Nashville, etc., R. Co. v. Hubble 140 Ga., 368; Singer v. Scott, 44 Ga., 659; Frogg v. Long, 3 Dana (Ky.), 157; Com. v. Churchill, 5 Mass., 174; Le Clerc v. Wood, 2 Pin. (Wis.), 37; Curtis v. Piedmont Lumber, etc., Co., 109 N. C., 401; Rogers v. Hoskins, 15 Ga., 270; Chamberlain v. Eckert, Fed. Cas., No. 2576; Fowler v. Byrd, Fed. Cas., No., 4999a; Demond v. Crary (C. C.), 1 Fed., 480; Grider V. Apperson. 32 Ark., 332; Dyer v. Scalmanani, 69 Cal., 637; National Express Co. v. Burdette, 7 App. D. C., 551; Gage v. Chicagoi, 216 Ill., 107; Wright v. Keifer, 131 Ill. App., 298; Jer-seyville Shoe Mfg. Co. v. Bell, 125 Ill. App., 496; Moorman v. Gibbs, 75 Iowa, 537; George Bobon Co. v. Moren, 151 Ky., 811; Citizens’ Nat. Bank v. Froman, 111 Ky., 206; Wilson v. Milliken, 103 Ky., 165; Draughn v. Wolf, 11 Ky., Law Rep., 366; Gist v. Sbean, 8 Ky., Law Rep., 509; Manufacturers’ Bottle Co. v. Taylor-Stites Glass Co., 208 Mass., 593; Nicbols v. State Bank, 45 Minn., 102; Page v. Mitcbell, 37 Minn., 368; Carson-Rand Co. v. Stern, 129 Mo., 381; Warder v. Henry, 117 Mo., 530; State v. Hines, 148 Mo. App., 298; Peterson v. Butte, 44 Mont., 129; Porter v. Kingsbury, 77 N. Y., 164; Averill v. Patterson, 10 N. Y., 500; Lord v. Ostrander, 43 Bart., 337; O’Beirne v. Lloyd, 31 N. Y. Super. Ct., 19; Trow Printing, etc., Co. v. New York Book Binding Co., 3 N. Y. Supp. 59; Beals v. Cameron, 3 How. Prac., 414; Smith v. White, 7 Hill, 520; Marston v. Lawrence, 1 Johns. Cas., 397; Farris v. Hayes, 9 Or., 81; Gardner v. Kiehl, 182 Pa., 194; Findlay v. Keim, 62 Pa., 112; Toland v. Tichenor, 3 Rawle, 320; Banigan v. Woonsocket Rubber Co., 22 R. I., 93; Trawick v. Martin Brown Go., 74 Tex., 522; Payne v. Benham, 16 Tex., 364; Langham v. Thomason, 5 Tex., 127; International, etc., R. Co. v. Barton, 24 Tex. Civ. App., 122; Texas, etc., R. Co. v. Kenna (Tex. Civ. App.), 52 S. W., 555; Norfolk, etc., R. Co. v. Nunnally, 88 Va., 546; Wright v. Suydam, 72 Wash., 587; Turner v. Lumbrick, 19 Tenn., 7-13.
133 Tenn. 433Raulston v. Marion County (1915)
1. STATUTES. Plurality of subjects. Acts 1915, ch. 682, providing for the issuance of bonds by a county to improve its roads without prejudice, and for the sale of said bonds and the building of roads and the appointment of pike-commissioners, and to fix their duties and salary, and to pro- . vide for the expenditure of the funds and for the levying of a tax to pay the interest on the bonds, and to authorize the work of county prisoners on the pike roads, is not unconstitutional as embracing more than one subject; the entire purpose of the act being only to improve the county roads. .(Post, pp. 434, 435.) Acts cited and construed: Acts 1915, ch. 682. 2. COUNTIES. Taxes. Property liable. It is within the power of a county to tax and assess all property within the county, both within and without corporate limits of municipalities, for the purpose of improving and constructing pikes, whether the money so obtained is expended within or without the municipalities; the general laws for dirt road construction not being applicable. (Post, pp. 435, 436.) Cases cited and approved: State v. Mayor, etc., of London, 40 Tenn., 263; De Tavernier v. Squire Hunt, 53 Tenn., 600; King v. Sullivan County, 128 Tenn., 393; Todtenhausen v. Knox County, 132 Tenn., 169.
133 Tenn. 437McDowell v. Hunt Contracting Co. (1915)
1. EQUITY. Dismissal of bill. Effect as to cross-bill. The complainant’s dismissal of the original bill ordinarily carries with it the cross-bill or the answer when filed as a cross-bill; but, where neither the cross-bill nor the answer filed as a cross-bill sets up ground for affirmative relief on which proof has been taken, the dismissal of the original bill does not carry with it the cross-bill or answer filed as a cross-bill, but leaves such cross-bill in court for prosecution to final decree. (Post, pp. 441, 442.) Case cited and approved: Partee v. Goldberg,' 101 Tenn., 664. 2. EQUITY. Dismissal of bill. Effect as to cross-bill. New matter. Complainant, member of a firm, filed his bill to attach and impound defendant’s judgment against the firm to satisfy an indebtedness due him from the defendant, and made the defendant’s solicitor in the recovery of the judgment, having a lien thereon to secure his reasonable fee, a party defendant, that the court might determine the amount of his fee, and that complainant might subject the remainder of the judgment to his own claim, and the defendant answered denying any liability, and filed its answer as a cross-bill against the solicitor to have his fee adjudicated; jurisdiction over the solicitor, a non-resident, being obtained in the county by the fact that another party defendant to the original bill resided in that county. The complainant and the defendant compromised their differences, and the complainant’s firm agreed to pay a certain amount into court upon the solicitor’s release of his lien, which was done, whereupon complainant dismissed his suit, and the chancellor, on motion of the defendant solicitor, dismissed the cross-bill. Held, on defendant’s appeal from the dismissal of the cross-bill, tliat such dismissal was proper, as after the dismissal of the original bill the jurisdiction over the defendant to the cross-bill was released, and there was no reason for holding him before the court, and the cross-bill sought no new matter but the same relief. (Post, pp. 442, 443.) Cases cited and approved: Blderkin v. Pitch, 2 Ind., 90; Abies v. Planter’s etc., Ins. Co., 92 Ala., 383. 3. APPEAL AND ERROR. Matters reviewable. “Cross-bill.” A “cross-bill” is auxiliary to and dependant on the original litigation and incorporates itself within and becomes a part of the original bill, so that it is one suit, and so wedded together are the two bills that an appeal takes them both up. (Post, pp. 443, 444.) 4. EQUITY. Cross-bill. Answer. "While the statute, Shannon’s Code, sec. 6133, allows an answer to be filed as a cross-bill against the original complainant, it is improper to incorporate in an answer to the bill a cross-bill against other parties. (Post, pp. 444, 445.) Case cited and approved: Hall v. Fowlkes, 56 Tenn., 754. Code cited and construed: Sec. 6133 (S.)..
133 Tenn. 446State v. Columbia, Godwin & Santa Fe Turnpike Co. (1915)
1. CONSTITUTIONAL LAW. Classification. Population. Turnpike road. Acts 1905, ch. 534, as amended by acts 1907, ch. 242, requiring a turnpike company, whose charter permitted tolls to he charged, after the turnpike had been metaled as required by Shannon’s Code, sec. 1764, to coat such metaling with a coat of sand, gravel or ground rock, restricted in its application to counties having a population of not more than 42,750, and not less than 42,700, according to the federal census, thus limiting it to turnpikes in one county, was a violation of Const, art. 11, sec. 8, declaring that no one shall be deprived of life, liberty, or property but by the law of the land, since while legislative acts made special by the use of the population standard for classification may be restricted to certain counties in their political capacity, it deprived the company of its property rights without affecting others in like condition elsewhere in the state, and since the duty imposed in such county upon a margin of fifty of population had no substantial and just relation to that county apart from other counties in which turnpike roads were operated. (Post, pp. 449, 450.) Acts cited and construed: Acts 1907, ch. 242; Acts 1905, ch. 534. Case cited and approved: Restricting cases, 111 Tenn., 234. Code cited and construed: Sec. 1764 (S.). Constitution cited and construed: Art. 11, Sec. 8. 2. STATUTES. "General law.” ‘¿-Special law.” Turnpike roads. Constitutionality. Acts 1905, ch. 534, as amended by acts 1907, ch. 242, was in violation of Const, art, 11, sec. 8, forbidding the increase or diminution of the powers of private corporations by special laws, as it did not embrace all of the class to which it was naturally related, and created a preference or established an inequality; a “special law,” in the constitutional sense, being one relating to particular persons or things of a class to which they legitimately belong, a law which, by force of no inherent limitation, arbitrarily separates or segregates some person or thing from those upon which but for such separation it would operate; and a “general law,’’within the provision of such section that corporations shall be formed under general laws, but shall not be created by special laws, is one by which all persons complying with its provisions may be entitled to exercise powers, rights and privileges conferred, while a “special law” confers on certain persons rights and powers, or imposes liabilities not granted to or imposed on others similarly situated (citing 4 Words and Phrases, Second Series, Special Law; see also, Words and Phrases, First and Second Series, General Law). (Post, pp. 450-454.) Cases cited and approved: Van Cleve v. Passaic, etc., Com., 71 N. J. Law, 183; Applegate v. Taylor, 224 Mo. 393; Strawn v. Harris, 54 Or., 424; State v. Hamer, 42 N. J. Law, 440; Alexander v. Elizabeth, 56 N. J. Law, 71; State v. Railway, 124 Tenn., 1;- Safe Deposit, etc., Co. v. Fricke, 152 Pa., 231; Pasadena v. - Stimson, 91 Cal., 238; Murray v. Board of Com., 81\Minn., 359; Hamilton County Com’rs v. Rosche, 50 Ohio St., 103; Strong v. Didnan, 207, Ill., 385; Weinman v. Railway Co., 118 Pa., 192. Constitution cited and construed: Art. 11, sec. 8.
133 Tenn. 455McKee v. Hughes (1915)
1. TORTS. Resort to legal proceedings. Petition to revoke merchant’s llcehse. Where a number of residents of a town petitioned the mayor and board of aldermen to revoke the defendant’s license as a general merchant on the ground that his store was a public nuisance, pursuant to which the board illegally revoked the license, but the petition was signed and presented without malice and in the honest belief that the board had power to act, defendants were not liable for plaintiff’s loss occasioned by the revocation, since their action was a lawful exercise of the right ■ to apply by address to government authorities for the redress of grievances secured by Const, art. 1, sec. 23. (Post, p 458.) 2. CONSPIRACY. Merchant’s license. Petition to revoke. “Civil conspiracy.” Defendants’ motive being the public good, and they being not actuated by malice or intent to injure plaintiff, their action in signing and presenting such petition was not a conspiracy, since a “civil conspiracy” is a combination between two or more persons to accomplish by concert of action an unlawful purpose, or to accomplish a purpose not in itself unlawful by unlawful means; the damage being the gist of any action (citing Words and Phrases, Second Series, Civil Conspiracy). (Post, pp. 459-462.) Cases cited and construed: Louisiana Citizen’s Bank v. Orleans Parish Board (C. C.), 54 Fed., 73; Vanarsdale v. Laverty, 69 Pa., 103. Constitution cited and construed: Art. 1, see. 23. 3. LIBEL AND SLANDER. Privilege, ilegal proceedings. Such petitions are privileged only in the absence of malice on the part of the petitioners. (Post, pp. 462, 463.) „ Cases cited and approved: White v. Nicholls, 3 How., 266; Kent V. Bongartz, 15 R. I., 72; Wieman v. Mabee, 45 Mich., 484; Dennehy v. O’Connell, 66 Conn. 175. 4. CONSPIRACY. Merchant’s license. Petition to revoke. Malice. Presumption. In addressing such a petition to the municipal authorities, the petitioners are presumed to act without malice; the burden being on the party complaining to show the contrary. (Post, p. 463.) Cases cited and approved: Ambrosius v. O’Farrell, 119 Ill. App., 265; Yan Wyck v. Aspinwall, 17 N. Y., 190. 5. EVIDENCE. Presumption. Knowledge of law. The presumption of knowledge of the law cannot be made the basis of imputed bad faith on defendants’ part in presenting such petition to the board for the abatement of a condition not a nuisance per se which could be legally abated only by judicial proceedings. (Post, pp. 463-465.) Cases cited and distinguished: Harrison v. Bush, 5 Ellis & Blackb., 344; Fairman v. Ives, 5 B. & Aid., 642.
133 Tenn. 466Cohn v. Hitt (1915)
1. BILLS AND NOTES. Indorsers.' Rights of. A prior indorser of a note payable to a given hank is not discharged because the maker took the note to a discount broker, engaged him to secure its discount and the broker in the usual course of business indorsed the same, for there was no diversion of the proceeds of the note and the liability of the first indorser was in no way changed. (.Post, pp. 468, 469.) Cases cited and approved: Perkins v. Ament, 39 Tenn., 116; Hickerson v. Raiguel, 49 Tenn., 329; Hermitage National Bank v. Carpenter, 131 Tenn., 136. 2. BILLS AND NOTES. Indorser’s liability. Negotiable Instruments Law (Laws 1899, ch. 94) sec. 64, declares that a person who places his signature in blank upon an instrument before delivery is liable as an indorser, while section 68 declares that, as respects one another, indorsers are liable prima facie in the order in which they indorse, but evidence is admissible to show that as between themselves they have agreed otherwise. Defendant indorsed a note 'for the accomodation of the maker and thereafter, to secure its discount, complainant also indorsed it. There was no evidence of any agreement whereby complainant should be primarily liable. Held, that as there was no diversion of the note, defendant was, both under the statute and at common law, liable to complainant, who was forced to pay the note at maturity. (Post, pp. 469-471.) Act cited and construed: Acts 1889, ch. 94. Cases cited and approved: McDonald v. Magruder, 3 Pet., 474; In re McCord (D. C.), 174 Fed., 72; Goldman v. Goldberger, 208 Fed., 877; Wilson v. Hendee, 74 N. J. Law, 640; State Bank v. Kahn, 49 Mise. Rep., 500; Harris v. Jones, 23 N. D., 488. Cases cited and distinguished: Marr v. Johnson, 17 Tenn., 1; Wallace v. Greenlaw, 77 Tenn., 115.
133 Tenn. 472Franklin v. Duncan (1915)
1. BILLS AND NOTES. Liability of indorser. Stipulation for Attorny’s fees. An indorser of a note, stipulating for payment of attorney’s fees in case of suit, though he he an accommodation indorser, is liable for such fees, especially where he waives demand, protest, and notice. (Post, pp. 474, 475.) Case cited and approved: Hall v. Pratt, 103 Ga., 255. Case cited and distinguished: Bank of British N. A. v. Ellis (C. C.), 2 Fed., 44. 2. GUARANTY. Liability of guarantor. Bills and notes. At-torny’s fees. The liability of a guarantor of the payment of a note, stipulating for payment of attorney’s fees in case in suit, included the liability of the maker for payment of the fees, especially where the contract of guaranty specified that the guarantor accepted all the provisions of the note. (Post, pp. 475, 476.) Case cited and approved: Riverside Milling, etc., Co. v. Bank, 141 Ga., 578. 3. BILLS AND NOTES. Attorney’s fees. Necessity of Suit. The holder of a mortgage note, providing for payment of attorneys’ fees if the note was placed “in the hands of an attorney for collection, has to be sued upon, or if litigation arises in the course of its collection,” was entitled to have the fees allowed, over objection that its suit was needless, since foreclosure out of court was provided for in the mortgage, where a general creditors’ bill was filed against the maker of the note and an injunction granted therein, which operated to enjoin the holder of the note from foreclosing the mortgage except in that cause, and, on the holder’s intervening to set up its claim by cross-bill, the complainant answered, denying the validity of the mortgage. (Post, pp. 476, 477.) . Cases cited and approved: Clark v. Jones, 93 Tenn., 639; Bank v. Woods, 125 Tenn., 6.
133 Tenn. 478Elledge v. Anderson (1915)
1. FRAUDULENT CONVEYANCES. Partial validity of transaction. Right of grantee. Resulting trusts. Complainant purchased a one-lialf interest in a stock of goods in violation of the Bulk Sales Law (Laws 1901, ch. 133). Thereafter the seller having died, he acquired the remaining one-half interest on the understanding that creditors’ liens should he discharged by the administrator and the seller’s widow. The money paid for the second interest could he identified in a hank. Held that, as the seller’s creditors could have followed the money, and as the whole of the stock was liable for their demands, complainant, who had paid the demands of creditors, was entitled to impress a trust upon such funds, notwithstanding the seller’s widow at the time of the sale was mentally incompetent. {Post, pp. 481-483.) Acts cited and construed: Acts 1901, ch. 133. Cases cited and approved: Daly v. Drug Co., 127 Tenn., 412; Adams v. Young, 200 Mass., 588; Loos v. Wilkinson, 113 N. Y., 485; Alley v. Connell, 40 Tenn., 578. Case cited and distinguished: Fecheimer-Keiffer Co. v. Burton, 128 Tenn., 682-684. 2. EQUITY. Bill. Sufficiency. Where a hill set out the facts showing complainant to he entitled to relief, and concluded with a general prayer, it is sufficient, though not in so many words stating the theory upon which complainant was entitled to relief. (Post, p. 483.)
133 Tenn. 484Minton v. Wilkerson (1915)
1. EQUITY. Practice. Special issues. Generally, when in an equity case there are several issues of fact submitted to a jury, they must find on all or none, and a verdict on one or more is not valid. (Post, pp. 486, 487.) Cases cited and approved: Cooper v. Maddox, 34 Tenn., 135; Berry v. Wallen, 1 Tenn., 186; Auncelme v. Auncelme, Cro. Jac., 31. Code cited and construed: Sec. 4240 (S.). 2. EQUITY. Practice. Special issues. In a suit to recover complainant’s alleged interest in the estate of his wife, where he attacked the validity of his release of the same, and the jury, to which special issues of fact were submitted, found in favor of the validity of the release, but failed to find on issues as to separation of complainant and his wife presented by defendants, the failure is immaterial and will not deprive defendants of a decree in their favor. (Post, pp. 487, 488.) Cases cited and approved: Sears v. Sears, 45 Tex., 557; Coons v. Lain (Tex. Cir. App.), 168 S. W., 981; Brown v. Milwaukee, etc., Co., 148 Wis., 98; Columbia Power Co. v. City Mills Co., 114 Ga., 588. 3. APPEAL AND ERROR. Review. Findings. Where complainant did not move for a new trial and preserve the evidence in a bill of exceptions, the finding of the jury against him on .issues submitted in an equity case must be deemed by the appellate court as warranted by the evidence. (Post, p. 488.) Case cited and approved: Scruggs v. Heiskell, 95 Tenn., 455.
133 Tenn. 489Richmond Type & Electrotype Foundry v. Carter (1915)
1. REPLEVIN. Actions. Right to maintain. A mere equitable title will not support replevin. (Post, pp, 491-493.) Cases cited and approved: Clark v. Jones, 93 Tenn., 641; Graham v. MeCampbell, 19 Tenn., 62; Cleveland v. Martin, 39 Tenn., 128; Roberts v. Francis, 49 Tenn., 127; Anthony v. Smith, 28 Tenn., 511; Thompson v. Pyland, 40 Tenn., 537; Crain v. Paine, 4 Cush. (Mass.), 483; Baker v. Seavey, 163 Mass, 522; Ramsdell v. Tewksbury, 73 Me., 197; Smith’s Ex’rs v. Mabry, 17 Tenn., 313; Rice v. Crow, 53 Tenn., 28. 2. CHATTEL MORTGAGES. Replevin. Equitable assignments. Where notes secured by a chattel mortgage were indorsed, but the mortgage was not assigned, the notes, while carrying with them the equitable title to the mortgage, did not carry súch title as would warrant the holder in maintaining replevin in his own name for the mortgaged chattels. (Post, pp. 491-493.) 3. APPEAL AND ERROR. Record. Necessity of Bill of Exceptions. In the absence of an assignment of error and a bill of exceptions presenting the -question of the refusal of an amendment, the matter cannot be reviewed, though the action appeared in the motion for new trial; that being a mere pleading and not evidence of what occurred on the trial. (Post, pp. 493, 494.) Cases cited and approved: Sherman v. State, 125 Tenn. 19; De Liquero & Crozier v. Munson, 58 Tenn., 18; Cormick v. Richards, 71 Tenn., 1.
133 Tenn. 495National Life & Accident Insurance v. Jordan (1915)
JURY. Jury trial. Demand. Shannon’s Code, sec. 4611 (Acts 1875, ch. 4, as amended by Acts 1889, ch. 220), declares that, when any civil suit is triable by jury, either party desiring a jury shall demand the same in his first pleading, tendering an issue triable by jury, or he shall call for the same on the first, day of any trial term, and have an entry on the docket that he calls for a jury, and/unless such demand and entry is made, the court shall try the case without a jury. Sections 4616 and 4673 require the clerk to keep two dockets, styled, respectively, “nonjury” and “jury” dockets. Three days before the first day of the term defendant’s counsel, by an entry in the clerk’s docket, demanded a jury trial. • Held that, as the amendatory act provided for demand- other than with the first pleadings, and as the court cannot in a case triable by juryheny that right, the demand was sufficient, although not made to the court on the first day of the term. Acts cited and construed: 'Acts 1875, ch. 4; Acts 1889, ch. 220. Cases cited and approved: Railroad v. Martin, 85 Tenn., 134; Railroad v. Timmons, 116 Tenn., 29. Codes cited and construed: Secs. 4611, 4612, 4616, 4673 (S.).
133 Tenn. 503Louisville & N. R. v. McKay (1915)
1. CARRIERS. Carriage of goods. Bill of lading. Delivery. A carrier is only authorized to deliver goods upon presentation of the genuine hill of lading, and any delivery made with that hill of lading outstanding is at its peril, and renders it liable to the holder of the genuine hill. (Post, p. 507.) Cases cited and approved: Bank v. Railroad, . 128 Tenn., 530; Railroad v. Fidelity & Guaranty Co., 125 Tenn., 674; Bigham v. • Madison, 103 Tenn., 358; Callis v. Cogbill, 77 Tenn., 138. 2. CARRIERS. Carriage of goods. Relief. Surprise and Imposition. Complainant railroad, which delivered a carload of beans to defendant upon his innocent presentation of a false bill of lading made 'by his principal, after recovery by the holder of the true bill, might recover against the defendant, on the ground that a party’s innocent misrepresentation of a material fact by mistake upon which either party is induced to act is ground for relief in equity as a willful and false assertion, which in either case operates as a surprise and imposition. (Post, pp. 507, 508.) Cases cited and approved: Phillips v. Hollister, 42 Tenn., 269; Bankhead v. Alloway, 46 Tenn., 56; Lewis v. McLemore, 18 Tenn., 206. 3. CARRIERS. Carriage of goods. Relief. Loss between innocent parties. Complainant in such case might recover on the principle that, where one of two innocent parties must suffer, that one by whose act the loss was occasioned must bear it. (Post, p. 508.) Case cited and approved: Bank v. Railroad, 128 Tenn., 53Ó. 4. PRINCIPAL AND AGENT. Liability of agent of undisclosed principal. Agent innocently presenting a false. bill of lading made by his principal, receiving goods from complainant carrier, and remitting proceeds to his principal, without disclosing his agency to the complainant, held personally liable for the goods received. (Post, pp. 508, 509.) Cases £ited and approved: Siler v. Perkins, 126 Tenn., 380; Far-gason v. Ball, 128 Tenn., 137; Roach v- Turk, 56 Tenn., 708. 5. CARRIERS. Delivery of goods. Fraud. Action. Where a carrier through mistake or fraud has been induced to deliver goods to the wrong person, it may maintain an action against such person for damages. (Post, pp. 509, 510.) Cases cited and approved: Sword v. Young, 89 Tenn., 128; Walker v. L. & N. R. R. Co., Ill Ala., 233.
133 Tenn. 511Tennessee Power Co. v. Lay (1915)
EMINENT DOMAIN. Remedies of property owners. Actions for damages. Necessity of jury of view.- Res.adjudicata. “Co-ram non judice.” In an action for damages for the taking of land for a power company’s lines, wherein the amount of land taken was agreed upon, and the sole issue was its value, where compensatory and incidental damages were assessed by the trial jury, which ■ laid laid off hy metes and hounds the land taken, the proceeding was not coram non judice, since the court had jurisdiction of the controversy, although there was no issue as to the land taken, hut the judgment was a valid adjudication on the question of • damages, although no jury of view was had, since Shannon’s Code, section 1866, provides that the injured party may sue for damages in the ordinary way, in which case the jury shall lay off the land hy metes and hounds, and assess the damages as upon the trial of an appeal from the return of a jury of inquest. Code cited and construed: Sec. 1866 (S.).
133 Tenn. 515Blackwood Tire & Vulcanizing Co. v. Auto Storage Co. (1915)
ACCESSION. Doctrine. Effect of. ; "Where the purchaser of an automobile, title to which was retained by the seller, fitted the machine with tire casing, and the -seller on nonpayment retook the machine, title to the tire casings passed to the seller, the seller of the casings not having retained title, for such is the rule of “accession,” which denotes the right of the owner of corporeal property, real or personal, to any increase thereof from any cause, either actual or artificial. Cases cited and approved: Southworth v. Isham, 5 N. Y. Super. Ct., 448; Bx parte Ames, Fed. Cas. No. 323; Harding v. Coburn, 53 Mass., 333; Comins v. Newton, 92 Mass., 618; Clark v. Wells, 45 Vt, 4; Planter’s Bank v. Vandyck, 51 Tenn., 617; Manufacturing Co. v. Buchanan, 11'8 Tenn., 238; Ice & Coal Co. v. Alley, 127 Tenn., 173; Automobile Co. v. Bicknell, 129 Tenn., 493. Case cited and distinguished: Holly v. Brown, 14 Conn., 266.
133 Tenn. 522Perry v. Young (1915)
1. JUDGMENT. Personal judgments. Character of notice. No personal judgment can be rendered against a nonresident served with notice only by publication. {Post, pp. 525-546.) Cases cited and approved: Wilcox v. Morrison, 77 Tenn., 700; Arndt v. Griggs, 134 U. S., 316; Jellenik v. Huron Copper Mining Co., 177 U. S., 1; Roller v. Holly, 178, U. S., 398; Citizens’ Savings & Trust Co. v. Ill. Central R. R. Co., 205 U. S., 46; Bryan v. Kennett, 113 U. S., 179; Huling v. Kaw Valley R. & Improvement Co., 130 U. S., 559; Selig v. Hamilton, 234 U. S., 652; Cooper v. Reynolds, 10 Wall., 308; St. Clare v. Cox, 106 U. S., 350; Freeman v. Alderson, 119 II. S., 185; Swift & Co. v. Warehouse Co., 128 Tenn., 82-100. Cases cited and distinguished: Amparo Mining Co. v. Fidelity Trust Co., 74 N. J. Eq., 197; Goodman v. Niblack, 102 II. S., 556; Pennoyer v. Neff, 95 U. S„ 714. Code cited and construed: Secs. 6115, 6121, 6162 (S.). 2. EQUITY. Jurisdiction. Actions “quasi in rem.” The insured in a life policy who had assigned it to his mother, who thereafter died, sued to reform the policy to conform with the assignment agreement between himself and his mother, that on his mother’s death the policy should revert to him. The insurance company appeared by the insurance commissioner. Other resident defendants were personally served. Nonresident distributees of the assignee were served by publication in a collateral attachment proceeding against their distributive shares in the policy. Defendant insurance company demurred to the jurisdiction, alleging that the court had no jurisdiction -of the nonresident distributees. Held that, since the suit was to settle the interests of only those made parties, it was quasi in rem, so that the court, having jurisdiction of the res, or the policy, had jurisdiction of the whole cause and could by its judgment bind the nonresident distributees. (Post, m- 525-546.)
133 Tenn. 547Cohn v. Lunn (1915)
1. BILLS AND NOTES. Validity. Illegal transactions. A note executed in violation of a penal statute is absolutely void not only between the parties, but even as against an innocent holder. (Post, pp. 549-550.) Acts cited and construed: Acts 1897, ch. 77. Cases cited and approved: Webb v. Tarver & Wife, 2 Tenn., Chan. App., 366; Pinney v. First Nat. Bank of Concordia, 68 Kan., 223; Snoddy v. Bank, 88 Tenn., 573; Bank v. Chapman, 122 Tenn., 415. 2. BILLS AND NOTES. Recital of consideration. Note for patent right. Where a party sold defendant a quantity of patented articles and granted him an exclusive right to sell such articles, and such others as he might order, in certain territory, and in consideration of the articles purchased, and the exclusive right to sell, defendant executed his note for $495, the note was not invalidated by noncompliance with Acts 1897, ch. 77, sec. 1, making it unlawful to take or receive any note for the sale of a patent right or any interest.therein unless it shall clearly appear upon the face of the note that it is given in the purchase of a patent right or interest therein, as a license to sell patented articles conveys no interest in the patent. (Post, pp. 550-552.) Case cited and construed: Waterman v. Mackenzie, 138 U. S., 252. 3. BILLS AND NOTES. Penal statutes. Construction. Acts 1897, ch. 77, requiring notes given for the sale of a patent right or interest therein to show on their face that they áre so given, and making a violation thereof a felony, is a penal act, and must be strictly construed. (Post, pp. 552, 553.) Cases cited and approved: Woods & Sons v. Carl, 203 IT. S., 358; Allen v. Riley, 203 U. S., 347.
133 Tenn. 554Tillman v. Lewisburg & Northern Railroad (1915)
1. STIPULATIONS. Condemnation proceedings. Agreement. Effect. Where, in condemnation proceedings, by agreement the right was reserved to a co-owner to claim in a future suit incidental damages to another tract of land, her case in such subsequent suit must be viewed as if her claim to damages were being urged in the condemnation proceeding. (Post, p. 556.) 2. EMINENT DOMAIN. Right to damages. Separate titles. Where a wife owned a tract of land, and, together with her husband as tenant by the entirety, owned a tract across a public turnpike which was used with individually owned tract, she could not, upon condemnation by a railroad of a right of way through the tract owned by her and her husband by the entirety, recover damages to the tract individually owned by her. (Post, pp. 556-561.) Cases cited and approved: Indiana, etc., R. Co. v. Conness, 184 Ill., 178; Conness v. Indiana, etc., R. Co., 193 Ill., 464; Potts v. Railroad Co., 119 Pa., 278; U. S. v. Inlots, Fed. Cas., No. 15, 441a; Leavenworth, etc., R. Co. v. Wilkins, 45 Kan., 674; Southern R. Co. v. Jennings, 130 Tenn., 450. Cases cited and distinguished: Chicago, etc., R. Co. v. Drexel, 110 Ill., 80; Smith County v. Labore, 37 Kan., 480; Glendenning v. Stahley, 173 Ind., 674.
133 Tenn. 562I. J. Cooper Rubber Co. v. Johnson (1915)
1. CORPORATIONS. Foreign corporations. “Doing business.” “Factor.” “Commission merchant.” A foreign corporation, which consigned tires for sale to a company handling automobile accessories in the State, was not “doing business” within the State to render necessary compliance with the foreign corporation act as a condition precedent to its right to recover of the sureties on the bond of the consignee, since the business of a “factor” or “commission merchant,” synonymous terms, meaning one whose business is to receive and sell goods for commission, is not the conduct of an agency or business for the consignor of the goods sold where the factor picks customers at his own risk and the consignor does not exclusively own the proceeds. (Post, pp. 564-567.) Case cited and approved: Gunn v. White Sewing Machine Co., 57 Ark., 24. Cases cited and disapproved: Com. v. Parlin, 118 Ky., 168; Hessig-Ellis Drug Co. v. Sly, 83 Kan., 60; Stein Double Cushion Tire Co. v. Wm. Fulton Co. (Tex. Civ. App.), 159 S. W., 1013; Sucker State Drill Co. v. Wirtz, 17 N. D., 313; Harrell v. Peters Cartridge Co., 44 L. R. A. (N. D.), 1094. Cases cited and distinguished: Butler Bros. Shoe Co. v. U. S. Rubber Co., 156 Fed., 1; Allen v. Tyson-Jones Buggy Co., 91 Tex., 22. 2. CORPORATIONS. Foreign corporations. Doing business. The requirement of a contract between a foreign rubber company and a local company selling tires for the rubber company on commission that the local company should keep the goods insured in the name of the rubber company did not constitute the local company a business agency of the rubber company so to render the latter subject to laws relating to doing business in the State. (Post, pp. 567, 568.) Cases cited and approved: Wasey v. Whitcomb, 167 Mich., 58; . Three States Buggy, etc., Co. v. Com., 32 Ky. Law Rep., 385; Sturm v. Boker, 150 V. S., 312. 3. CORPORATIONS. Foreign corporations. “Doing business.” The provision of the contract for the sale on commission of auto* mobile tires consigned to an automobile accessories company in the State by a foreign rubber company that the former should make adjustments necessary under the selling guaranty out of the latter’s stock in its hands did not render the rubber company subject to laws relating to engaging in business within the State. (Post, pp. 568, 569.) 4. PRINCIPAL AND SURETY. Release of surety. Extension of time for payment. Where a company received tires for sale on consignment from a rubber company, the contract providing that monthly remittances of the proceeds of sales should be made in cash, the fact that the company was permitted to fall behind in its payments, and the rubber company accepted a note for a month’s sales payable in thirty days, did not release the surety on the consignee’s bond,' except as to the payment covered by the note, since, if a surety is liable for different payments, an extension of time as to one or more will not affect his liability for others. (Post, pp. 669, 570.) Cases cited and approved: Klein v. Long, 27 App. Div., 158; Cohn v. Spitzer, 145 App. Div., 104; Shepard Land Co. v. Banigan, 36 R. I., 25. 5. PRINCIPAL AND SURETY. Release of surety. Extension of time for payment. Where successive payments are to be made at fixed periods, if the creditor gives time as to one of such payments, he will release the surety as to it. (Post, pp. 569, 570.)
133 Tenn. 571German-American Monogram Mfrs. v. Johnson (1915)
1. SALES. Breach of contract. Remedy of buyer. Rescission. Where plaintiff, selling goods to defendant, represented that defendant was to handle the goods exclusively in his city, without which inducement the contract would not have been made, defendant’s subsequent sale of the same goods to another dealer in that city was a breach of a material part of the contract, so that, regardless of whether there was fraud, the buyer was entitled to rescind. (Post, pp. 573-577.) Cases cited and approved: Landreth v. Schevenel, 102 Tenn., 486; Koerner v. Henn., 8 App. Div., 602; Silherstein v. G-uttridge, 80 N. J. Law, 117. 2. FRAUD. Representations. Expression of intention. A representation amounting to a mere expression of intention, though false, is not a fraud at law; but a representation amounting to an engagement binds the party making it to make it good. (Post, pp. 573-577.) 3. SALES. Breach. Effect. A buyer may be discharged if there is a breach of the contract by the seller in some substantial particular which goes to the essence of the contract and renders the seller incapable of performance, or of performance as intended. (Post, pp. 573-577.) 4. APPEAL AND ERROR. Harmless error. Instructions. In an action for the price of goods sold, where the verdict was manifestly reached on the ground that the buyer had a right to rescind, the charge of the trial court on the defense of set-off or recoupment, as to which no damages were shown upon which the verdict might have been reached, was not prejudicial. (Post, pp. 577, 578.) 5. SALES. Breach of contract. Remedy of buyer. Verdict. Sufficiency. In such action, where the verdict for defendant on the ground of his right to rescind was correct, whether the jury attributed that right to the ground of fraud or-to the defense that there was a breach of a material part of the engagement was immaterial. (Post, pp. 577, 578.)
133 Tenn. 579Walmsley v. Franklin County (1915)
1. STATUTES. Titles. Plurality of subjects. Validity. Constitution article 2, section 17, provides that no bill shall become a law which embraces more than one subject, that subject to be expressed in the title. Pub. Acts 1913, ch. 26, was entitled “a general enabling act authorizing counties through their quarterly courts to issue bonds for highway purposes to provide for a retiring indebtedness thus created at or before maturity, and to provide for the expenditures of the fund derived from the bond issue.” Section 16 of that chapter was amended by Pub. Acts 1915, ch. 23, to read that nothing in the act shall be construed to repeal or modify any private or special act authorizing any county or municipality through its county court to issue bonds for the purpose of building roads. Pub. Acts 1913, ch. 26, sec. 3, provides for the issuance of bonds 'when necessary to secure federal co-operation on the roads. Section 6 makes it the duty of the county trustees to collect and account for taxes, and to take advantage of all laws to force the collection of the tax levied to retire the bonds. Section 12 provides that, if all the roads provided for in the enactment are finished, and there is a surplus, it shall be expended as the road commissioners direct. -ETeZdj-that the act did not violate the consitutional provision requiring but one subject. (Post, pp. 582, 583.) Acts cited and construed: Acts 1913, ch. 26; Acts 1915, ch. 23.' Cases cited and approved: Railroad v. Byrne, 119 Tenn., 299; State v. Brown, 103 Tenn., 449; Morrell v. Fickle, 71 Tenn., 79; State v. Hamby, 114 Tenn., 364; Cannon v. Mathes, 55 Tenn., 504; Frazier v. Railroad Co., 88 Tenn., 157; Scott v. Marley, 124 Tenn., 398 Todtenhausen v. Knox Co., 132 Tenn., 169. Constitution cited and construed: Sec. 17’, art. 2. * 2. STATUTES. Subjects. Plurality of subjects. All the provisions of suck act being intended to further its general subject, the improvement of county roads,, the act did not violate the constitutional provision requiring that the subject of the act be stated in the title. (Post, pp. 583-586.) Cases cited and approved: Cannon v. Matbes, 55 Tenn., 504; Luehr-man v. Taxing District, 70 Tenn., 426; Morrell v. Fickle, 71 Tenn., 79; Frazier v. Railroad, 88 Tenn., 156; Cole Mfg. Co. v. Falls, 90 Tenn., 469; State v.‘ Yardley, 95 Tenn., 554; Peterson v. State, 104 Tenn., 131; Condon v. Maloney, 108 Tenn., 99; Furnace Co. v. Railroad Co., 113 Tenn., 697; Scott v. Marley, 124 Tenn., 398. s 3. COUNTIES. Powers of county board. Regular sessions. Under Pub. Acts 1913, cb. 26, sec. 1, providing for the improvement of county roads, and Pub. Acts 1915, ch. 23, the 1913 act requiring the issuance of bonds by the county courts in quarterly session assembled, the county courts may issue bonds at a specially called meeting under Shannon’s Code, sec. 5997, providing that the chairman or judge of the county court shall have power to convene the quarterly courts in special session. (Post, pp. 586, 587.) Code cited and construed: Sec. 5997(S.). 4. COUNTIES. Highway bonds. Time of redemption. Under Pub. Acts 1913, ch. 26, sec. I, providing that highway bonds shall mature at such time as determined by the county court, not exceeding forty years from the date of issuance, redeemable at the option of the county at such times as fixed by the court, a resolution of the county court fixing the time and maturity of the bonds in forty years, was valid, since it fixes a definite date of maturity. (Post, pp. 587, 588.) 5. COUNTIES. Highway bonds. Notice,. Stotutory requirements. The provision of Pub. Acts 1913, ch. 26, sec. 2, requiring that the orders and resolutions of the county courts directing issuance of highway bonds shall be preceded by at least thirty days by the adoption of a resolution setting forth the roads to be built or improved, and published as a notice to the voters, is mandatory, and compliance may he enforced before the adoption and issuance of the bonds, but, where no objection is made until after the issuance of the bonds, the bonds are not invalid for failure to comply therewith. {Post, pp. 588, 589.)
133 Tenn. 590McKay v. Louisville & Northern Railroad (1915)
1. CERTIORARI. Scope of review. Petition. Assignments of error. Necessity. Under Acts 1907, ch. 82, creating the court of civil appeals and regulating the method of reviewing its judgments, on petition hy defendant for certiorari to review the opinion and judgment of the court of civil appeals, which on some questions was favorable to the defendant and against the plaintiff, plaintiff, who presented no petition for certiorari and no assignment of errors, was concluded hy the court’s rulings adverse to him. (Post, p. 595.) Acts cited and construed: Acts 1907, ch. 82. Cases cited and approved: C., N. O. & T. P. R. R. Co. v. Brock, 132 Tenn., 477; Knight v. Cooley, 131 Tenn., 21; Murrell v. Rich, 131 Tenn., 378. Code cited and construed: Sec. 4637(S.). 2. CONTRACTS. Construction. Intention of parties. The object in the construction of contracts- is to ascertain the intention of the parties and what the contract means as a whole. (Post, pp. 595, 596.) Case cited and approved: Arbuckle v. Kirkpatrick, 98 Tenn., 221. 3. CONTRACTS. Construction. Relation of parties. In the construction of contracts, courts will look to the nature of the subject-matter, the relation of the parties to the contract, and the object to be accomplished. (Post, pp. 595, 596.) 4. CARRIERS. Limiting liability. Express company's employees. Contracts of employment. A contract, whereby plaintiff, then employed as a messenger by an express company, entered into a contract with the express company containing the words “have entered or am about to enter,” for a continued future employment, agreeing to the express company’s contract to save defendant railroad harmless from all liability to the company’s employees for any injury on defendant’s line, whether caused by negligence of defendant or otherwise, and ratifying its contracts with carriers when accepted by the express company, initiated a new term of employment, so as to constitute a good consideration for the plaintiff’s contract. (Post, pp. 596, 597.) 5. CARRIERS. Contract limiting liability. Reading contract. Effect. In such case, plaintiff, in the absence of any fraud practiced upon him by the express company in procuring the contract, was bound thereby, Whether he did or ’did not read the contract when he signed it. (Post, pp. 597, 598.) 6. CARRIERS. Express messenger. Release of carrier’s liability. Effect. Plaintiff, who by contract with an express company for employment as messenger assumed the risk of injury, and released his claims against carriers for liability for personal injury and ratified the company’s contracts with carriers, and agreed to save the company harmless as to any claims for personal injury, and who received the employment as a consideration, was bound by his contract. (Post, pp. 597, 598.) Cases cited and approved: Railroad Co. v. Stone & Haslett, 112 Tenn., 348; Railroad Co. v. Smith', 123 Tenn., 678. 7. CARRIERS. Passenger. • Express messenger. Under such contract of employment, the employee, injured by wreck on defendant’s line, did not stand to the defendant in the relation of a passenger, so as to make defendant liable for his injury. (Post, pp. 598-608.) '-iOágesicited and approved: New York 0. R. Co. v. Lockwood, 17 Wall., 357; Grand Trunk R. Co. v. Stevens, 95 TJ. S., 655; Liver-gpo^l.^.G. W. Steam Co. v. Phoenix Ins. Co., 129 U. S., 397; Den-,;i,;.ver.-.&fjR. G. R. Co. v. Whan, 11 L. R. A., 432; Coleman v. Penn. ((.jip.Cq., ¡50 L. R. A., 432; Santa Fe, Prescott & Phoenix Ry. Co. v. v,-,Grant,Bros. Construction Co., 228 TJ. S., 177; Robinson v. Balti-Ohio R. Co., 237 TJ. S., 84; Oliver v. Northern P. R. Co. )i( ff>. C.¡), 196 Fed., 432. ”bases:cited and distinguished: Baltimore & Ohio S. W. Ry. Co. v. foíküt, 136 TJ S., 498; Purdy v. R. W. & O. R. R. Co., 125 N. Y., '‘''AzW; tíunt v. Herring, 2 Mise. Rep., 105. 8. CONTRACTS. Public policy. Release of right to recover for personal injury. Such contract, in respect to plaintiff’s surrender of his right of action against the carrier for personal injury in consideration ^oR'liis employment by the express company, was not void as ‘'’“'against public policy. (Post, pp. 598-608.)
133 Tenn. 609Green v. Officers & Directors of Knoxville Banking & Trust Co. (1915)
1. BANKS AND BANKING. Officers and directors. Liability to bank. Action. Premature character. A bill was prematurely brought at the chancellor’s direction by the receiver of an insolvent bank against its officers and directors to recover for loans negligently made by them* whereby the insolvency was brought about, where the debtors were not wholly insolvent when suit was brought, but collections might yet be made from them, since there can be no recovery for negligence without damages.resulting therefrom, but it would be otherwise where such insolvency existed. (Post, pp. 614-618.) Cases cited and approved: Johnson v. Churchwell, 38 Tenn., 146; Allison v. Coal Co., 87 Tenn., 63; Jackson v. Meek, 87 Tenn., 69; Albitztigui v. Guadalupe, etc., Mining Co., 92 Tenn., 600; Wallace v. Lincoln Savings Bank, 89 Tenn., 630. 2. EQUITY. Pleading. Demurrer. Demurrer to the bill as a whole which is not good to the whole must be helé bad in, toto. (Post, pp. 614-618.) 3. BANKS AND BANKING. Officers and agents. Liability to bank. Negligence as to loans.. A bill filed at the instance of the chancellor by the receiver of an insolvent bank to recover of officers and directors for loans negligently made was maintainable although the assets of the bank were not first exhausted, since the suit was by the bank itself, i. e., by its receiver in its right, to hold its agents, the directors, liable for negligence, and the measure of damages was the amount of the negligent loans finally lost after due efforts to collect. (Post, pp. 614-618.) 4. EQUITY. Pleading. Disregard of foreign matter. Foreign matter contained in a pleading must be disregarded on demurrer. (Post, pp. 614-618.) 5. BANKS AND BANKING. Officers and agents. Right of action. Immaterial matter. The right of action of the receiver of an insolvent bank at the instance of the chancellor to recover of officers and directors for loans negligently made was not impaired by the fact that, if all the assets in the receiver’s hands should be realized and the whole demand made against the directors be successfully prosecuted, there would not be enough assets produced to satisfy the bank’s debts, since the bank, owning the rights sued on, was entitled to collect not only for the payment of creditors but for distribution among stockholders. (Post, pp. 618, 619.) 6. ACTION. Misjoinder of causes of action. Parties involved. A bill by the receiver of an insolvent bank at the instance of the chancellor to recover of officers and directors for loans negligently made was not bad for misjoinder of parties complainant on the ground that it was substantially one by creditors and stockholders to enforce their respective rights against the directors, while a right of action of creditors is ex delicto, depending on intentional fraud or willful mismanagement, and that of stockholders is based on contract, sustainable by proof of gross negligence alone, since the suit was in legal effect by the bank itself. (Post, pp. 619-621.) Code cited and approved: Secs. 2086, 2104 (S.). 7. BANKS AND BANKING. Officers and agents. Liability to bank. Action. Pleading. Tbe allegations of a bill by the receiver of an insolvent bank at the instance of the chancellor against its officers and, directors to recover for fraud, willful mismanagement, and negligence bringing about the insolvency, that the defendants carried as solvent large assets in fact insolvent, published false statements, carried as cash items tickets, miscellaneous papers, and overdrafts which would be lost to the bank through insolvency, that the directors were guilty of negligence in permitting officers to extend to themselves a heavy line of credit and to lend to concerns in which they were personally interested large amounts of money, which would prove nearly a total loss, all of which could have been prevented by the directors by the exercise of ordinary diligence, were sufficient to justify overruling a demurrer, since to make a case against the directors it was unnecessary to allege they were guilty of fraud and wilful mismanagement, the allegations of negligent conduct being sufficient, though allegations showing fraud and willful mismanagement would have been proper. (Post, pp. 621-623.) Cases cited and approved: State v. Standard Oil Co., 120 Tenn., 86; Wallace v. Lincoln Savings Bank, 89 Tenn., 630. Codes cited and construed: Secs. 2067, 2068 (S.). 8. BANKS AND BANKING. Officers'and agents. Liability to bank at common law. Under the common law a bank itself has the right to redress for injuries inflicted upon it by the acts denounced by Shannon’s Code, sections 2067, 2068, and 3242, providing that intentional fraud in failing to comply with the articles of incorporation, or in deceiving the public or individuals in relation to their liabilities, subjects all officers, stockholders, or directors, knowingly participating theréin, to damages at the suit of any person injured; that the diversion of the funds of the banks, the payments of dividends leaving insufficient funds to meet its liabilities, the keeping of false books or accounts, whereby any one is injured, and the making and publishing of false reports, are such frauds as will subject those actively concerned to damages at the suit of any person injured; and that any director of any hank who shall be guilty of any fraud or willful mismanagement by which loss shall fall upon its creditors shall be individually liable for such loss. (Post, pp. 623, 624.) 9. EQUITY. Pleading. Multifariousness. A bill by the receiver of an insolvent bank filed at the instance of the chancellor against its officers and directors to recover for loans negligently made, which joined directors who served five full terms and those who served only a part of such five terms, was multifarious as to the short term defendants, though the defendants who served during all the terms could not object that the others were included with them for any period of time within the years during which they served, as they were connected with each of all the defendants in some part of the litigation. (Post, pp. 624, 625.) I/O. EQUITY. Pleading. Multifariousness. Whether a bill should be declared multifarious is largely a matter of discretion controlled by considerations of the inconvenience to the parties and the court of permitting the examination of disconnected controversies in the same litigation. (Post, pp. 625-628.) Cases cited and approved: Insurance Companies v. Confectionery Co., 124 Tenn., 247; Emerson v. Gaither, 103 Md., 564; Wallace v. Lincoln’s Savings Bank, 89 Tenn., 630; Briggs v. Spaulding, 141 U. S„ 132. 11. EQUITY. Pleading. Demurrer. The allegations of a bill must be taken as true by the appellate court on hearing to review a decree dismissing the bill on demurrer. (Post, p. 628.) 12. EQUITY. Pleading. Demurrer. Every reasonable presumption must be indulged in favor of a bill when opposed by a demurrer. (Post, p. 628.) 13. BANKS AND BANKING. Officers and agents. Liability to bank. Action. Pleading. A bill by the receiver of an insolvent bank, filed at tke instance of the chancellor, to recover against its officers and directors for loans negligently made, did not need to set out the particular circumstances of each loan, showing the situation and surroundings of the parties, since all complainant was required to do was to make a prima facie case of negligence. (Post, pp. 628, 629.) 14. EVIDENCE. Judicial Notice. Banking custom. The court will judicially know that in Tennessee the duty to make loans does not ordinarily devolve on the directors of a bank. (Post, pp. 629, 630.) 15. BANKS AND BANKING. Officers and agents. Liability to bank. Action. Pleading. In suit by the receiver of an insolvent bank at the instance of the chancellor to recover against its officers and directors for loans negligently made, the fact that a large number of items cata-logued in the bill as cash items and overdrafts were undated did riot render the bill demurrable as to defendants who served five full directorates, the period sued for; it being alleged that the items occurred during such period. (Post, pp. 630, 631.)
133 Tenn. 632Johnson City v. Tennessee Eastern Electric Co. (1915)
FROM WASHINGTON Appeal from the Chancery Court of Washington Connty. — Hal. H. Haynes, Chancellor.
133 Tenn. 655Knaffl v. Knoxville Banking & Trust Co. (1915)
1. SUBROGATION. Payment of debt. Sufficiency. As a surety is not entitled to subrogation until the debt is paid ■ in full, a surety on a bond to secure a city in the deposit of moneys in an insolvent banking institution is not entitled to sub-rogation, though 'he has paid the bond, where the bank was still largely indebted to the city, and the total amount of dividends, together with the amount of the bond, would not discharge the obligation; for in such case, if the surety were pro rata subrogated to the bank’s right to receive dividends, the city would be injured. {Post, pp. 657-659.) Cases cited and approved: Harlan v. Sweeny, 69 Tenn., 686; Gilliam v. Esselman, 37 Tenn., 86. Cases cited and distinguished: Columbia Finance, etc., Co. v. Ky. Un. R. Co., 60 Fed., 794; New Jersey Midland R. Co. v. Worten-dyke, 27 N. J. Eg., 658. 2. SUBROGATION. Contracts. Construction. Though a bond to secure a city in a deposit of money in a bank declared that in case of default and payment of the claim the surety should be subrogated to all rights of the city against the bank to the amount of such payment, the surety only has the usual rights of subrogation, and his payment, together with dividends paid by the bank, not being sufficient to discharge the obligations due from the bank, he is not entitled to subrogation to the detriment of the.city. {Post, pp. 660-662.) Case cited and distinguished: Ex parte Rushforth, 10 Vesey, Jr., 409.
133 Tenn. 663Winslow v. Winslow (1915)
1. DIVORCE. Alimony. Award in solido. Statute. Under Shannon’s Code, section 4222, providing that the court may decree to the wife such part of the husband’s real and personal estate as it’ may thinfc proper, where an absolute divorce was awarded a wife for abandonment against her husband, worth some $170,000, the husband having been the more to blame in their difficulties, an award to the wife of $200 a month alimony cannot stand, and she will be decreed $50,000 in solido. {Post, pp. 665-670.) Cases cited and approved:' White v. Bates, 89 Tenn., 570; Watson v. Campodonico, 3 Higgins, 698. Cases cited and distingushed: Chenault v. Chenault, 37 Tenn., 248; Boggers v. Boggers, 65 Tenn., 299. Codes cited and construed: Secs. 4221-4223 (S.). 2. DIVORCE. Allowances. Attorneys’ fee. Attorneys for the wife in her successful suit for absolute divorce against her husband were entitled to a fee of $5,000 from the husband though they could have procured' a divorce upon the ground of abandonment alone with very little trouble, but in fact charged cruel and inhuman treatment and infidelity as well. {Post, pp. 670, 671.) 3. DIVORCE. Allowances. Attorneys’ fee. Attorneys’ fees are treated as part of the expenses incident to a divorce case, and are generally allowed the wife, whether complainant or defendant, both upon the successful termination of her suit for divorce, as well as for services pendente lite. {Post, p. 671.) Case cited and distinguished: Shy v. Shy, 54 Tenn., 125.
133 Tenn. 672Stone v. Fidelity & Casualty Co. (1915)
1. INSURANCE. Accident insurance. “Accidental means.” An injury is not produced by accidental means, within the terms of a policy, where it is the natural result of an act or acts in which the insured intentionally engages, and is caused by a voluntary, natural, ordinary movement, executed as was intended. (Post, pp. 675-678.) Cases cited and approved: In re Scarr, 1 K. B., 367; Oledera v. Scottish Accident Ins. Co., 19 R., 355; Smith v. Travelers’ Ins. Co., 219 Mass., 147; Feder v. Iowa St. Traveling Men’s Ass’n., 107 Iowa, 538; Shanberg v. Fidelity & Casualty Co. (C. C.), 143 Fed., 651; Lehman v. Great West. Acc. Ass’n, 155 Iowa, 737; Smouse v. Iowa St. Traveling Men’s Ass’n, 118 Iowa, 436; McCarthy v. Travelers’ Ins. Co., 8 Biss., 362; Niskern v. United Brotherhood, 93 App. Div., 364; Hastings v. Travelers’ Ins. Co. (C. C.), 190 Fed., 258; Cobb v. Preferred Mut. Acc. Ass’n, 96 Ga., 818; Travelers’ Ins. Co. v. Selden, 78 Fed., 285; Southard v. Railway Passengers, etc., Co., 34 Conn., 576; Standard Life & Acc. Ins. Co. v. Schmaltz, 66 Ark., 588; Atlanta Acc. Ass’n v. Alexander, 104 Ga., 709; McGlinchey v. Fidelity & Casualty Co., 80 Me., 251; Reynolds v. Equitable Acc. Ass’n, 59 Hun., 13; . Pervangher v. Casualty, etc., Co., 85 Miss., 31; Bailey v. Interstate Casualty Co., 8 App. Div., 127; Rodey v. Travelers’ Ins. Co., 3 N. M. (Gild.), 543; Taylor v. Gen. Acc. Corp., 208 Pa., 439; Stout v. Pac. Mut. L. Ins. Co., 130 Cal., 471; Mutual Acc. Ass’n v. Barry, 131 U. S., 100; North Am. Life & A. Ins. Co. v. Burroughs, 69 Pa., 43; Horsefall v. Pacific Mutual L. Ins. Co., 32 Wash., 132; Young v. Railway Mail Ass’n, 126 Mo. App., 325; Rose v. Commercial Mut. Acc. Co., 12 Pa. Super. Ct., 394; ■ Patterson v. Ocean Acc. & Guaranty Co., 25 App. D. C., 46, 2. INSURANCE. Accident Insurance. “Accidental means.” Complainant, who attended a football game on a cool day when the ground was damp, and contracted a cold, resulting in lumbago, and who after medical treatment and the debility resulting from a purgative, and while lying in bed, had a paper brought, reached for it, and raised it suddenly above his head, when his strong blood pressure caused a rupture of the retina, destroying the sight of one eye, could not recover on a policy insuring him against bodily injury through “accidental meáns,” since, while the result was not forseen, the cause producing the result was not accidental, but an ordinary natural movement, executed as intended. (Post, pp. 678-680.) Case cited and approved: Insurance Co. v. Bennett, 90 Tenn., 256.
133 Tenn. 681Morton v. Imperial Realty Co. (1915)
1. LICENSES. ' Nonpayment of occupation tax. Action on contract. . One pursuing an occupation defined as a privilege by statute cannot recover on a contract made in pursuance of tbe business, if be bas not paid bis privilege tax. {Post, pp. 682, 683.) Cases cited and approved: Stevenson v. Ewing, 87 Tenn., 46; Hawortb v. Montgomery, 91. Tenn., 16; Cary-Eombard Lumber Co. v. Tbomas, 92 Tenn., 593. 2. LICENSES. . Nonpayment of occupation tax. Pleading. Where, in suit on a contract made in pursuance of a .business defined as a privilege by statute, tbe defendant pleads that the plain tiff bas not paid bis privilege tax, the burden to. prove tbe fact so pleaded is on defendant, as tbe defense is essentially affirmative, and tbe plea evidence of extrinsic matter. {Post, p. 683.) 3. LICENSES. Nonpayment of occupation tax. Evidence. One suing on a contract made in pursuance of a business defined by statute as a privilege cannot be defeated by failure to pay bis privilege tax, in tbe absence of some proof in tbe record showing bis default. {Post, p. 683.) Cases cited and approved: Margolys v. Goldstein, 96 N. Y. Supp., 185; Salmon Co. v. Box Co., 158 Cal., 567; Woodley v. Zeman, 178 III. App., 369.
133 Tenn. 684In re Forked Deer Drainage District (1915)
1. DRAINS. Drainage districts. County courts. Laws 1909, chapter 185, as amended by Laws 1915, chapter 61, provides that, where lands included in a drainage district shall lie in several counties, the county court of any one of the counties has jurisdiction to create and establish such district without the necessity of resorting to the county courts of other counties for concurrent or ancillary action. Constitution article 2, section 29, declares that the General Assembly shall have power to authorize the several counties and incorporated towns to impose taxes for county and corporation purposes. Held, that the constitutional provision applies only to taxes, and not to special assessments; hence the legislature could validly give the county court jurisdiction over proceedings to establish a drainage district lying in several counties, since in the absence of restriction, the legislature’s power is plenary, and drainage districts, being governmental agencies, need not coincide with county lines. (Post, pp. 687, 688.) Acts cited and construed: Acts 1909, ch. 185; Acts 1915, cli. 61. Cases cited and approved: State ex rel. v. Powers, 124 Tenn., 553; Arnold v. Knoxville, 115 Tenn., 195; Smith v. Carter, 131 Tenn., 1. Constitution cited and construed: Sec. 29, art. 2. v 2. DRAINS. Power to establish. In the absence of restriction, the legislature has plenary power over the establishment of drainage districts. {Post, pp. 688, 689.) Cases cited and approved: People v. Sacramento"Drainage Dist.,. 155 Cal., 373; State ex rel. v. Cummings, 130 Tenn., 566. 3. DRAINS. Drainage district. Nature of. A drainage district is a governmental agency to which power to levy special assessments may be properly delegated. {Post, pp. 689-690.) Cases'cited and approved: Bryant v. Robbins, 70 Wis., 258; Martin v. Tyler, 4 N. D., 278; Christ v. State ex rel. Whitmore, 97 Ind., 389; Hudson v. Bunch, 116 Ind., 63. Cases cited and distinguished: Hagar v. Reclamation District, 111 U. S„ 701: Reclamation District v. Hagar, 66 Cal., 54; Shaw, v. State, 97 Ind., 23.
133 Tenn. 691Western Union Telegraph Co. v. Nashville, C. & St. L. Ry. Co. (1915)
1. TELEGRAPHS AND ' TELEPHONES. Extension of line. Right to make. A telegraph company was organized under New- York act of April 12, 1848 (Laws 1848, ch. 265), providing that any number of persons may associate for the purpose of constructing a line of telegraph through the State from and to any point without the State. New York act of April 8, 1851 (Laws 1851, ch. 98), required the written consent of persons pwning two-thirds of the capital stock of such companies as a condition to an extension of the lines, while New York act of June 29, 1853 (Laws 1853, ch. 471), provided for an extension of the lines upon the terms and conditions prescribed' in the act of 1848. Held, that after the passage of the act of 1853., written consent of persons holding two-thirds of the stock of such company was not necessary to an extension of its line without the State. (Post, pp. 700-704.). 2. EMINENT DOMAIN. Telegraph and railway companies. Right to condemn. As Act Cong. July 24, 1866, chapter 230, section 1, 14 Stat. 221 (Rev. St. U. S. sec. 5263 [U. S. Comp. St. sec. 10072]), does' not confer upon telegraph companies the right to condemn an easement over a railroad right of way, hut merely denies the State power to prevent an occupation and use of such right of way for telegraph purposes, a telegraph company may, under the State laws, condemn for telegraph purposes a way over a railroad right of way. (Post, pp. 704, 705.) Cases cited and approved: Western Union Tel. Co. v. Richmond, 224 U. S., 160; Western Union Tel. Co. v. Pennsylvania R. Co., 195 U. S., 540; Louisville & N. R. Co. v. Western Union Tel. Co., 207 Fed., 1; Western Atlantic R. Co. v. Western Union Tel. Co., 138 Ga., 420. 3. EMINENT DOMAIN. Telegraph and railway. Ways. Condemnation. A petition by a telegraph company for condemnation of a way for a line of telegraph along a railroad right of way, brought under Acts 1885, chapter 66, section 1, authorizing such condemnation, providing that the ordinary use of such railroad shall not be thereby obstructed, is not bad because the petition declared that the telegraph line would not obstruct the use of the right of way for railroad purposes, and offered to move the line in case the right of way should be obstructed. {Post, pp. 705-709.) Acts cited and construed: Acts 1885, ch. 66, sec. 1; Acts 1885, ch. 135. Cases cited and approved: Railroad Co. v. Telegraph' Co., 101 Tenn., 62; C. & A. R. R. Co. v. Joliet, Lockport & Aurora Railway Co., 105 Ill., 388; Peoria & Pekin Union Ry. Co., 105 Ill., 110; Railroad v. S. W. Tel. Co., 121 Fed., 276; Railroad v. Postal Tel. Co., 173 Ill., 535; Railroad v. Post. Tel. Co., 76 Miss., 731. Cases cited and distinguished: St. Louis, etc., R. Co. v. Postal Tel. Co., 173 Ill., 508; American Telephone Co. v. St. Louis, etc., R. Co., 202 Mo., 656. 4. EMINENT DOMAIN. Compensation. Right to. As a telegraph company, upon condemning the right to erect a telegraph line on a railroad right of way is obligated to prevent its line from obstructing the use of the right of way for railroad purposes, Shannon’s Code, secs. 1844-1859, providing for compensation in money, makes adequate provision for assessment of damages and allowance of compensation. (Post, pp. 709, 710.) Code cited and construed: Secs. 1844-1859 (S.). 5. EMINENT DOMAIN. Proceedings. Selection of line. Where a telegraph company condemns the right to build a line on a railroad right of way, the telegraph company, and not the railroad company, is entitled to select the site for the telegraph line, so long as it does not interfere with the operation of the railroad. (Post, pp. 710-716.) Cases cited and approved: Railroad v. Railroad, 116 Tenn., 500; Western & Atlantic Ry. Co. v. Western Union Tel. Co., 138 Ga., 420; Postal Tel. Co. v. Oregon, etc., R. Co. (C. C.), 104 Fed., 623; Union Pac. R. Co. v. Colorado Postal, etc., Co., 30 Colo., 133. Cases cited and distinguished: American Telephone, etc., Co. v. St. Louis, etc., R. Co., 202 Mo., 656; Western Union Tel. Co. v. L. & N. R. Co. (D. C.), 201 Fed., 946; Louisville & N. R. Co. v. Western Union Tel. Co., 207 Fed., 1. 6. EMINENT DOMAIN. Proceedings. Compensation. As a telegraph company may acquire the right to construct its line on a railroad right of way where it does not obstruct the operation of the railroad, hut there may he an interference not amounting to an obstruction, the railroad company cannot be' denied substantial damages, particularly where the taking will force it, in case it builds its own telegraph line, to adopt a less advantageous route, this being so though the telegraph company offered to remove its line'in case it should be an obstruction, for a slight interference would not amount to an obstruction. (Post, pp. 716-719.) Cases cited and approved: Railroad v. Tel. Co., 101 Tenn., 62; Cleveland, etc., R. Co. v. Ohio Postal Tel. Co., 68 Ohio St., 306; Atlantic, etc., R. Co. v. Postal Tel. Co., 120 Ga-., 268; Mobile, etc., R. Co. v. Postal Tel. Co., 120 Ala., 21; W. U. T. Co. v. South, etc., R. Co., 184 Ala., 66; Mobile, etc., R. Co. v. Postal Tel. Co., 76 Miss., 731; Postal Tel. Co. v. Oregon, etc., R. Co. (Co'. C.), 114. Fed., 787.
133 Tenn. 720People's National Bank v. Corse (1915)
FROM ROBERTSON Appeal from the Chancery Court of Robertson County. — J. W. Stout, Chancellor.