134 Tenn.

Volume 134 — Tennessee Reports

51 opinions

134 Tenn. 1Southern Express Co. v. Potter Bros. (1915)
PROM WHITE Appeal from the Circuit Court of White County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court.— C. E. SNODGRASS, Judge.
134 Tenn. 7Bank of Whitehouse v. Baldridge (1915)
.FROM ROBERTSON Appeal from the Chancery Court of Robertson County. — J. W. Stout, Chancellor.
134 Tenn. 17Conquest v. Broadway National Bank (1915)
1. BANKS AND BANKING. Depositors. Relation between bank and depositor. The relation between bank and depositor is that of debtor and creditor, so that, where at the time of the death of a depositor the bank holds his note, it may set off the amount thereof against his deposit, though the note is not yet due, regardless of whether the bank’s right be regarded as a lien or not. (Post, p. 21.) Cases cited and aproved: Harris v. Bank, 110 Tenn., 249; Wagner v. Bank, 122 Tenn., 164; Nashville Trust Co. v. Bank, 91 Tenn., 350. 2. BANKRUPTCY. Banks and banking. Depositors. Relation between bank and depositors. The same right extends to the bank as against the assignee for the benefit of creditors of the depositor or' against his trustee in bankruptcy. (Post, p. 21.) Case cited and approved: New York County Nat. Bank v. Massey, 192 U. S., 138. 3. BANKS AND BANKING. Depositors. Relation between bank and depositors. The same right extends in case of insolvency of the depositor to unmatured debts against the administrator of the depositor. (Post, p. 22.) Cases cited and approved: Ford v. Thornton, 3 Leigh (Va.), 695; Knecht v. N. S. Savings Inst., 2 Mo. App., 563; Mathewson v. Strafford Bank, 45 N. H., 108; Camden Nat. Bank v. Green, 45 N. J. Eq., 546. 4. BANKS AND BANKING. Relations with depositors. Set-off of debts to bank. Rights of widow.- A bank cannot be deprived of the right to set off against the es-state of a decedent depositor the amount of. a note held by it against him by the assignment of the deposit to the widow as her year’s support, since she claims through her husband. (Post, p.. 22.) 5. EXECUTORS AND ADMINISTRATORS. Set-off of unma-tured debts. Statutes. Construction. Shannon’s Code section 4137, providing that in all suits by the administrator of any deceased person the insolvency of whose estate has been suggested the defendant may plead a set-off of whatever amount is due him from the decedent, being declaratory only of the previous law, cannot be narrowly construed; so that, while it deals with matured obligations, it does not deny the right to an equitable set-off of an unmatured obbligation against an insolvent estate. (Post, pp. 22, 23.) Case cited and approved: Richardson v. Parker, 32 Tenn., 529. Code cited and construed: Sec. 4137(S.). 6. EXECUTORS AND ADMINISTRATORS. - Allowance to widow for support. Property subject. “Money on hand or due.” The allowance to the widow under Shannon’s Code, section 4020, to be made from moneys on hand or due, or other assets, must be literally construed, so that money on deposit in a bank to which the deceased is indebted, and against which the bank may set off its claim, is not subject to the widow’s allowance, not being “money on hand or due.” (Post, pp. 23, 24.) Cases cited and approved: Johnson v. Henry, 59 Tenn., 697; Bayless v. Bayless, 44 Tenn., 359; Railroad v. Kennedy, 90 Tenn., 187.
134 Tenn. 25Ferguson v. Tyler (1915)
1. COUNTIES. Funds. Rights of taxpayers. All citizens and taxpayers of a county have such, interest in the subject-matter as entitles them to file a bill in behalf of themselves and all other citizens and taxpayers of the county to enjoin the exercise of any of the powers attempted to be conferred by private Acts 1915, chapter'184, authorizing the establishment of “communities” in the county on the ground of its' unconstitutionality. (Post, pp. 28, 29.) 2. COUNTIES. Funds. Establishment of communities. Constitutional provisions. Private Acts 1915, chapter 184, applicable within the population described, only to Montgomery county, providing for the establishment of communities and community centers for the improvement of roads and schools, and for social and industrial advancement, and that the community should receive its proportionate share of any county highway levy, and its pro rata of school funds from State and other levies, is invalid in that it transfers funds from the county treasury to the treasury of the community intended as a quasi municipality in violation of Constitution 1870, article 2, section 29, providing that the general assembly may authorize counties and incorporated towns to impose taxes for county .and corporation purposes, respectively, as prescribed by law. (Post, pp. 29-32.) Cases cited and approved: Smith v. Carter, 131 Tenn., 1; In re Forked Deer Drainage District, 133 Tenn., 684; State ex rel. v. Cummings, 130 Tenn., 566; National Bank v. Barber, 24 Kan., 534; Smith v. Haney, 73 Kan., 506. Cases cited and determined: Nashville v. Towns, 37'Tenn., 186; Knoxville v. Lewis, 80 Tenn., 180; State ex rel. v. Police Jury, 47 La. Ann., 1244. Constitution cited and construed: Sec. 29, art. 2 (1870). 3. COUNTIES. Taxation. Constitutional provisions. Under such, constitutional provision, the two purposes for which taxes may be collected are distinct, so that the use to which taxes are to be applied must be one for the benefit of the delegate entity which levies the taxes. {Post, pp. 29-32.) 4. COUNTIES. “County.” A “county” is a government within a government not to be dissolved or destroyed by legislative enactment. {Post, pp. 33, 34.) Cases cited and approved: James County v. Hamilton County, 89 Tenn., -237-,• Eagle v. Beard, 33 Ark., 497; King v. Sullivan County, 128 Tenn., 393; Raulston v. Marion County, 133 Tenn., 433. Case cited and distinguished: Prescott v. Duncan, 126 Tenn., 106.
134 Tenn. 35McCarty v. Carolina Lumber Co. (1915)
1. STATES. Boundaries. Establishment. Powers of court. The supreme court of the United States has, by the provisions of Const. U. S., article 3, section 2, original and exclusive jurisdiction to establish the boundaries between States, and such boundaries must be established either by its decree or by agreement of the States, so that courts of either State in án ejectment suit between citizens can determine only where the boundary is, and not what it should be. (Post, pp. 54-56.) Acts cited and construed: Acts 1789, ch. 3; Acts 1796, eh. 18; Acts 1805, ch. 47; Acts 1820, ch. 22; Acts, 1832, p. 58; Acts 1'881, ch. 347; Acts 1885, ch. 80. Cases cited and approved: North Carolina v. State of Tennessee, 235 U. S., 1; Poole v. Meeger, 11 Pet., 185; Rhode Island v. Massachusetts, 12 Pet., 657; Virginia v. Tenn., 148 U. S., 503. Case cited and distinguished: Belding v. Hebard, 103 Fed., 523. Constitution cited and construed: Art. 11, sec. 32; Art, 3, sec. 2. 2. STATES. Boundaries. Establishment. The determination of the United States Geological Survey as to the boundary between States is not conclusive, since the survey was without authority to establish a line, and attempted only to represent the line as it was then thought to be located. (Post, pp. 56, 67.) Cases cited and approved: Stevenson v. Fain, 1Í6 Fed., 147; North Carolina v. Tennessee, 235 U. S., 1; Belding v. Hebard, 103 Fed., 523. Case cited and distinguished: North Carolina v. Tennessee, 235 U. S., 1. 3. STATES. Boundaries. Establishment. Validity. North Carolina commissioners of 1799 correctly interpreted the call of the Cession Act (Laws 1789, ch. 3), which read, “running from the end of Iron Mountain where the Nolachucky river runs through it, to the top of Bald Mountain,” as requiring departure from the top of Iron Mountain at a point where both Little and-Big Bald Mountains were visible, and running from there to Little Bald, and thence to and along the top of the range to Big Bald. (Post, pp. 57-59.) 4. STATES. Boundaries. Establishment. Correction. Although commissioners in running a boundary between States should have run it in a certain way, other than that adopted, that question is immaterial in determining what the boundary is, since that is shown by their act, and not what their acts should have been. (Post, p. 59.) 5. STATES. Boundaries. Establishment. 'Marking. Although the boundary as run by a boundary commission was not clearly marked by artificial marks, if the natural marks were clear the line was sufficiently established and would override the incorrectness of a line marked by trees or other artificial lines. (Post, pp. 59, 60.) Case cited and approved: Ayres v. Watson, 113 U. S., 596. 6. STATES. Boundaries. Establishment. Usage. Tbe fact that inhabitants along the boundary between States sent their children to schools of one State and paid taxes to it is not conclusive of the proper location of the boundary, especially where the region was wild and inaccessible and they could only have employed the schools which they did employ. (Post, pp. 60, 61.) 7. STATES. Boundaries. Establishment. Where North Carolina by its boundary commission of 1799 established' the boundary between it and Tennessee, and Tennessee thereafter made but spasmodic attempts to have the line changed, each of which contemplated further action by North Carolina, which was not taken, the boundary originally established was the legal boundary. (Post, pp. 61-63.) Cases cited and approved: Virginia v. Tennessee, 148 XT. S., 503; Maryland v. West Virginia, 217 TJ. S., 1. 8. JUDGMENT. Res judicata. Persons concluded. Where the evidence was insufficient to show that the parties to a suit in ejectment involving the question of a State boundary were the parties to a prior suit in a federal court in another State, dismissed there on the ground of want of jurisdiction and the order of dismissal specifically provided that it should be without prejudice, the judgment was not res judicata and did not estop the parties in ejectment. (Post, pp. 63-66.)
134 Tenn. 67State ex rel. Timothy v. Howse (1915)
FROM DAVIDSON. Appeal from the Circuit Court of Davidson County. —Thos. E. Matthews, Judge.
134 Tenn. 93State ex rel. Brown v. Howell (1915)
MUNICIPAL CORPORATIONS. Officers. Elections. Right to election. The charter of the city of Nashville (Priv. Acts 1913, ch. 22.) provides for recalling municipal officers hy petition signed by voters equal to 25 per cent, of the entire vote cast for the office of mayor at the last preceding election, demanding the election of a successor of the person sought to he removed. A recall petition demanded removal of a number of offiieers, some of whom were not subject thereto, because not elected by the city, and others of whom had been removed under the Ouster Law or had resigned. Meld that, as the petition was joint and it could not be- determined whether' the voters would have signed it had not all the names been included, the petition is a nullity, and affords no basis for recall election. Acts cited and construed Acts 1913, ch. 22. Cases cited and approved: Conn. v. Richmond, 17 Cal. App., 705; Robinson v. Anderson, 26 Cal. App., 644; Leavenworth v. Wilson, 69 Kan., 74. Cases cited and distinguished: Bennett v. Drullard et al. (Cal. App., 1915), 149 Pac. 368; Hay et al. v. Dorn (1914), 93 Kan., 392.
134 Tenn. 107Hancock v. Horne (1915)
TRUSTS. Constructive trust. Fraud. Family transaction. Defendant, a resident and the owner of five-sevenths of a tract of 443 acres in which complainants, his nonresident sisters, each owned a one-seventh interest, who entered into a written contract with them to have a sealed appraisal made, with the right to purchase at the appraised price or at any higher hid, which contract was not legally binding upon complainants, who were both married women, and who in response to their inquiry stated that lie had no faith in any prospects of phosphate on the land, and that there had been no offer to lease it since one made years ago, and who later, and before the complainants’ deeds were sent him, knew of the discovery of phosphate and was pressed for options, but who failed to inform complainants of the discovery or the applications for leases and options, and who purchased it on its valuation as farming land for $16,000 or $17, 000, and who later sold 252 acres for $40,-000 pursuant to an option contract made within a day or two of receiving the deeds, was guilty of a breach of duty in withholding information of facts going to increase its value, and of a breach of a confidential relation or trust, notwithstanding the contract, and would be declared a trustee for each of the complainants for one-seventh of the proceeds of the sale. Cases cited and approved: Smith v. Countryman, 30 N. Y., 655; Shaefiier v. Sleade, 7 Blackf. (Ind.), 178; Stebbins v. Eddy, 4 Mason, 417; Cullen v. Hernz, 13 N. Y. St. Rep., 334; Montgomery Southern R. Co. v. Matthews, 77 Ala., 357; Perkins v. McGavock, 3 Tenn., 415; White v. Flora, 2 Tenn., 426; Harris v. Williamson, 5 Tenn., 124; Walker v. Dunlop, 6 Tenn., 271; Lewis v. McLemore, 18 Tenn., 206; Phillips v. Hollister, 42 Tenn., 269; Coffee v. Ruffin, 44 Tenn., 487; Keith v. Kellam (C. C.), 35 Fed., 243.
134 Tenn. 121State ex rel. Thompson v. Crump (1915)
FROM SHELBY. Appeal from the Chancery Court of Shelby County. ■ — FlaNcis Fentress, Chancellor; F. H. Heiskell, Chancellor sitting by courtesy. Appealed to the April Term, 1916, at Jackson, for the Western división, bnt transferred to Nashville and advanced and heard at the December Term, 1915.
134 Tenn. 144Tigert v. Wells (1915)
1. BASTARDS. Inheritance. “Any woman.” Shannon’s Code, sec. 4169, providing that where “any woman” shall die intestate, leaving a natural-born child, whether she also, leaves legitimate children or otherwise, the natural-born child shall take by general rules of descent and distribution, equally with the other children, applies where the woman, when she became a mother, owas a slave, in view of the earlier Acfs 1865, ch. 40, giving colored persons the right to inherit. (Post, pv. 146, 147.) Acts cited and construed: Acts 1865-67, chs. 36, 40, sec. 10. Case cited and approved: McCline v. Ridley, 183 S. W., 736. Code cited and construed: sec. 4169 (S.). 2. BASTARDS. Inheritance. Grandchild. Shannon’s Code, sec. 4169, permitting inheritance by a natural-born child equally with' other children from the ‘ mother, gives a natural grandchild the right to inherit from the mother of its parent who was an illegitimate. (Post, pp. 147, 148.) Case cited and approved: Turnmire v. Mayes, 121 Tenn., 45. 3. BASTARDS. Inheritance. Presumption. Where it appears that a natural-born person died in March, 1867, it will be presumed in favor of the right of inheritance that she •died after the enactment, of Act. March 8, 1867 (Shannon’s Code, sec. 4169), giving natural-born persons the right of inheritance from their mothers. (Post, p. 148.) Act cited and construed: Act 1867, ch. 36.
134 Tenn. 149Hartman v. Tennessee State Fair Ass'n (1915)
1. THEATERS AND SHOWS. Liability of Amusement concessionary. The general concessionary as to amusement devices from a State fair association, who, for a percentage of the receipts, let privileges to operate particular devices to subconcessionaries, having control of the amusements on the grounds and the selection of the attractions and of their operators, was under duty to use reasonable care to see that a device for the carriage of passengers, stimulating wave motion, called an “Ocean Wave,” was reasonably safe. (Post, p. 156.) Cases cited and approved: Richmond, etc., R. Co. v. Moore, 94 Va., 493; Turgeon v. Connecticut Co., 84 Conn., 541; Bernier v. Woodstock Agri. Soc., 88 Conn., 558; Sebeck v. Plattdeutsche Volkfest Yerein, 64 N. J. Law, 624; Stickel v. Riverview Park Co., 250 Ill., 452; Hollis v. Kansas City, etc., Ass’n., 205 Mo., 508; Thornton v. Maine State Agrl. Pair, 97 Me., 108; Texas State Fair v. Brittain, 118 Fed., 713; Johnson v. Hot Springs Land & I. Co., L. R. A., 1915 F.; Babick v. Riverview Park Co., 256 Ill., 24; Thomas v. Springer, 134 App. Div., 640; Reisman v. Public Service Corp., 82 N. J. Law, 464. Cases cited and distinguished: Thompson v. Lowell, etc., St. R. Co., 170 Mass., 577, Wodnik v. Luna Park Amusement Co., 69 Wash., 638. 2. THEATERS AND SHOWS. Operator of amusement device. Duty of care. The .immediate operator of an amusement device at a State fair carrying passengers, who leases the privilege to operate from the general concessionary from the fair for a share of the receipts, is charged with the duty to his patrons of maintaining the place and device in a safe condition. (Post, vv. 156, 157.) Cases cited and approved: Scott v. University, etc., Ass’n., 162 Mich., 684; Bole v. Pittsburg Athletic Co., 205 Fed., 468; Smith v. Cumberland-, etc., Soc., 163. N. C., 346. 3. THEATERS AND-SHOWS. Action for personal injuries. Question for jury. In an action for personal injuries by the patron of an amusement device at a State fair against the fair association, its general concessionary, and the latter’s subconcessionary, where plaintiff’s ticket purported to be issued by the general concessionary, the question whether he or the subconcessionary was the immediate operator of the device was for the jury. (Post, pp. 157, 158.) Case cited and approved: O’Rourke v. Street R. Co., 103 Tenn., 124.
134 Tenn. 159Tennessee State Fair Ass'n v. Hartman (1915)
1. THEATERS AND SHOWS. Amusement device.' Duty of care of operator. One operating at a State fair an amusement device which, carried passengers owed to his patrons, although they were actuated by motives of curiosity or pleasure, the degree of care owed by a common carrier of passengers, the care which the most prudent man would he expected to exercise under similar circumstances in the design, construction, maintenance, inspection and repair of his vehicle, and its approaches and exits, although' all the rules governing carriers were not applicable. (Post, p. 163.) Cases cited and approved: Knottnerus v. North Park Street R. R. Co., 93 Mich., 348; Best Park, etc., Co. v. Rollins (Ala.), 68 So., 417; Chesapeake Beach R. Co. v. Brez, 39 App. D. C. 68; Hinds v. Steere, 209 Mass., 442; Hartford Deposit Co. v. Sollitt, 172 Ill., 222; Southern Building, etc., Ass’n, v. Lawson, 97 Tenn., 367; Lumsden v. Thompson Scenic R. Co., 130 App. Div., 209; Linthicum v. Truitt, 2 Boyce (Del.), 338. Case cited and distinguished: O’Callaghan v. Dellwood Park Co., 242 Ill., 336. 2. THEATERS AND SHOWS. Collapse of amusement device. Res ipsa loquitur. Where the carriage contrivance of an amusement device carrying passengers fell and injured one, that fact, together with attendant circumstances, was evidence of faulty construction or repair, its operator being under the duty of a common'carrier. (Post, p. 163.)
134 Tenn. 164McCline v. Ridley (1915)
1. BASTARDS. Wills. Inheritance. Statutory provision. Under Shannon’s Code, sec. 4166 (Code 1858, sec. 2423), providing that when an illegitimate child dies intestate without child, husband, wife, or mother living, his estate shall go equally to his brothers and sisters by his mother, or their descendants, an illegitimate child is an heir at law of another illegitimate child of the same mother who dies unmarried and childless, and has a right to contest the will of the latter. (.Post, pp. 166-168.) • Acts cited and construed: Acts 1867, ch. 36, sec. 10 Cases cited and approved: Webb v. Webb, 40 Tenn., 70; Scoggins v. Barnes, 67 Tenn., 561; Carter v. Montgomery, 2 Tenn. Chy., 220; Murphy v. Portrum, 95 Tenn., 610; Laughlin v. Johnson, 102 Tenn., 456; Dennis v. Dennis, 105 Tenn., 88; Lewis v. Mynatt, 105 Tenn., 510; Scott v. Wilson, 110 Tenn., 179; Carver v. Maxwell, 110 Tenn., 75; Sheperd v. Carlin, 99 Tenn., 64; Cole v. Taylor, 132 Tenn., 92. Codes cited and construed: Sec. 4166(S.); Sec. 4169(S.); Sec. 4179(S.). 2. SLAVES. Legitimizing issue. inheritance. Statutory provision. Shannon’s Code, sec. 4179, relating to the validation of marriage of colored people who lived together as husband and wife during slavery, and legitimation of their children, does not affect the right of an illegitimate to inherit from.another illegitimate child of the same mother. (Post, pp. 166-168.) 3. BASTARDS. Inheritance. Statutory provision. Under Shannon’s Code, sec. 4166 (Code 1858, sec. 2423), providing that when an illegitimate child dies intestate without child, husband, wife, or mother living, his estate shall go equally to Ms brothers and sisters by bis mother, or their descendants, lawful grandchildren of an illegitimate child are heirs at law of another illegitimate child of the same mother who dies under such circumstances. (Post, pp. 166-168.)
134 Tenn. 169Bryant v. Freeman (1915)
1. HUSBAND AND WIFE. Coverture. Rights of. Where a married woman whose husband had been sentenced to the penitentiary for life disposed of her property, representing herself to be a widow, her fraud estops her from questioning the conveyance on the ground that her husband did not join, and her privy examination was not taken in the form prescribed for deeds of married women. (Post, pp. 171, 172.) Case cited and approved: Pilcher v. Smith, 39 Tenn., 208; Cooley v. Steele, 39 Tenn., 605; Howell v. Hale, 73 Tenn., 405; Gates v. Card, 93 Tenn., 334; Bawley v. Burris (Ch. App.), 47 S. W., 176; Galbraith v. Lunsford, 87 Tenn., 8-9; Johnson City v. Wolfe, 103 Tenn., 277. 2. Curtesy. Curtesy initiate. Right of husband. Where a wife after the birth of heirs sold her separate property while the husband was in the penitentiary, and after his release, he joined with her in disposing of property purchased with the proceeds thereof, he ratified the original sale, and estopped himself from setting up any rights in the first property which he might have under his curtesy initiate.. (Post, pp. 172, 173.) Cases cited and approved: Guión v. Anderson, 27 Tenn., 325; Bryant v. Freeman, 131 Tenn., 87. 3. HUSBAND AND WIFE. Actions to recover land. Parties. Wlhere a wife sold her separate property, representing herself to be a widow, when, in fact, her husband was living and entitled to his estate by the curtesy initiate, the purchaser having entered into possession, a joint disseisin was effected, so that a joint suit by the husband and wife was necessary; hence, as the wife was estopped from asserting her rights, there could he no relief, the wife not having effected a fraud on her husband. (Post, pp. 172, 173.) 4. HOMESTEAD. Alienation. Right of. Under Const, art. 11, sec. 11, and Shannon’s Code, sec. 3798, providing that the homestead shall not be aliened save by the joint consent of the husband and wife where that relation exists, a husband, though incarcerated in the penitentiary, did not, where he maintained his family relations, sending his wife money from the institution and resuming his position as head of the family on his release, lose that status by reason of his incarceration, so that separate property of the wife upon which she lived did not constitute the family homestead, which could not be aliened without the joint consent of the spouses. (Post, pp. 173, 174.) Cases cited and approved: Huffman v. Smyth, 47 Or., 573. Code cited and construed: Sec. 3798 (S.). Constitution cited and construed: Sec. 11, art. 11.
134 Tenn. 175People's National Bank v. Swift (1915)
1. APPEAL AND ERROR. Review. Trial by court. Where a cause is tried by the judge without a jury, the judgment must be affirmed on appeal if there is any evidence on which 'it can be sustained. (Post, pp, 177-181.) Case cited and approved: Hinton v. Insurance Co., 110 Tenn., 113. 2. APPEAL AND ERROR. Review. Trial by court. On trial by a court without a jury, the appellate court will take that view of the evidence most favorable to the prevailing party. (Post, pp. 177-181.) 3. BANKS AND BANKING. Payment of checks. Liability of bank. Where the drawer and payee of a check agreed that the check should be paid from the proceeds of drafts drawn on third parties through the defendant bank, on whom the check was drawn, and the bank on being informed of the arrangement told them to send the check in, and that as soon as the draft would come the check would be paid, the bank was estopped to deny that enough of the proceeds of the draft had been appropriated to pay the check. (Post, pp. 181-183.) Case cited and distinguished: Bank v. Yardley, 165 II. S., 634. 4. ASSIGNMENTS. Payment of checks. Liability of bank. Negotiable Instruments Law (Laws 1899, ch. 94) sec. 189, under which a check does not operate as an assignment of any part of the fund to the credit of the drawer, so that the bank is not liable to the holder until it accepts or certifies the check, does not prevent an appropriation of a fund in the bank by the parties to a check to meet its payment when such'appropriation is brought to the attention of the bank before it has paid out the money. (Post, p. 181.) 5. BANKS AND BANKING. “Acceptance” of check. Retention by bank. A bank was informed on December 31, 1912, that a check had been drawn upon it, and that the parties thereto had agreed that it was to be paid out of the proceeds of a certain draft which had been drawn on a third party through the bank, and the bank agreed to the arrangement, and the check was sent to it immediately, and on February 11, 1913, the bank reported that the drafts had not been honored, but that they would be and that as soon as it got the money it would settle, and on February 24th the payee wrote to the bank to still -hold the check, but in fact the drafts had been collected by the bank on February 8th and placed to the credit of the drawer and exhausted by February 15th in making payments in which the bank was to an extent interested. Held, that there was an “acceptance” of the check by the bank within the meaning of Negotiable Instruments Law, sec. 137, providing that where the drawee after acceptance destroys the bill or refuses within twenty-four hours after delivery or within such other period as the hoider may allow to return the bill, he will be deemed to have accepted the same. (Post, pp. 183-187.) Case cited and approved: 'Wlsner v. First Nat. Bank, 220 Pa., 21. Case cited and distinguished: Westberg v. Chicago Lumber & Coal Co., 117 Wis., 589.
134 Tenn. 188Edington v. Michigan Mutual Life Insurance (1915)
1. APPEAL AND ERROR. Review. Decree pro confesso. In reviewing a judgment entered against defendant pro oonfesso after its failure to answer, the hill should be construed at least as favorably as when tested by demurrer or motion to dismiss; that is, the court should make every reasonable presumption in favor of the bill, which must be sustained if, upon critical examination of the facts stated, there is a possibility that the action may be sustained — it being the policy of the courts to give every complainant an opportunity to be heard on the merits when any equity appears in the bill, though defectively stated. (Post, pp. 191, 192.) Case cited and approved: State v. Standard Oil Co., 120 Tenn., 86. 2. INSURANCE. Decree pro confesso. Pleading' date of inception. ' In suit on a life policy, under a bill alleging that on September 18, 1905, insured, applied for the policy, that it was not issued before the 22d, and that complainants could not state the exact date, as insured had borrowed on the policy and it was in possession of the insurer, September 22d must be treated as the date of the inception of the insurance. (Post, pp. 192-194.) 3. INSURANCE. Life insurance. Lapsing of policy. Where insured, under a life policy issued September 22, 1905, paid premiums for nine full years in advance, including the year 1913, which carried the policy to noon of September 22, 1914, and such insured died on the early morning of that day, the policy had not lapsed at the time of his death. (Post, pp. 194, 195.) 4. EQUITY. Decree pro confesso. Pleading statute. In suit on a life policy, the bill, pleading a liability of the insurer under Acts 1907, ch. 457, sec. 2, requiring a provision for grace of one month for the payment of premiums after the first year, though alleging only that the policy lapsed, thus giving rise to a new policy to which the statute would apply, after the “passage” of the act, without reference to the date of its taking effect, was sufficient, when taken for confessed. (Post, pp. 195, 196.) 5. INSURANCE. Life insurance. Reinstatement. Provision for grace in payment of premiums. The provision for grace, secured to the insured by Acts 1907, ch. 457, sec. 2, providing that no policy of life insurance shall be issued, unless containing a provision for a grace of one month for the payment of every premium after the first year, became a part of the policy itself upon reinstatement, subsequent to the taking effect of the act, after lapsing for failure to pay premiums. (Post, p.-196.) Cases' cited and approved: Laurenzi v. Ins. Co., 131 Tenn., 644; ' Dugger v. Ins. Co., 95 Tenn., 245. 6. INSURANCE. . Failure to pay premium. Effect. Ordinarily, where a contract of insurance provides that it shall be void if the premiums are not paid when due, or within a specified time, default in payment of a premium when due will determine tile insurance without any action by the insurer, and the policy cannot be revived without a new contract. (Post, pp. 196, 197.) 7. EQUITY. Decree pro confesso. Propriety. Where defendant’s answer admits its liability, the court will not set aside the decree rendered pro confesso on the bill for the proper amount, _ even though the allegations of the bill itself are deficient. (Post, p. 197.) 8. EQUITY. Decree pro confesso. Pleading. Penalty. Statute. Under Acts 1901, chapter 141, authorizing recovery of a penalty against an insurance company for delay in paying a loss, and providing that it shall be made to appear to the court or jury that the refusal to pay was not in good faith and inflicted additional expense or loss upon the holder of the policy, and that the penalty, within the prescribed limits, shall, in the discretion of the court or jury, be measured by the additional expense entailed, the bill, in suit on a life policy, alleging that defendant had refused to pay the claim within sixty days after it was due, and after demand, which refusal was not in good faith and had inflicted additional expense -upon complainants in an amount equal to not less than twenty-five per cent, of the amount sought to be recovered, was insufficient, the bill being taken pro ■confesso, to authorize recovery for additional loss as a penalty, save for counsel fees. (Post, pv. 197, 198.) Acts cited and construed. Acts 1901, ch. 141.
134 Tenn. 199De Rossett Hat Co. v. London Lancashire Fire Ins. (1915)
1. APPEAL AND ERROR. Presentation of grounds of review in court below. Necessity. Motion for new trial. Under court Rule 5 (126 Tenn. 723, 160 S. W. ix), declaring that error occurring or committed on the trial of a case will not constitute ground for a reversal unless it be specifically stated in the motion for new trial, an assignment complaining of the overruling of defendant’s objection to trial by jury cannot be reviewed where the objection-was not made a ground in the motion for new trial. (Post, p. 205.) Acts cited and constred: Acts 1901, ch. 141. 2. INSURANCE. Action on policy. Issues. In an action on fire policies, where the insurers admitted liability, paying into the court the amounts of the policies and withdrawing their answers denying liability, so that the only thing left for trial was whether complainant was entitled to the statutory penalty for failure to pay within sixty days after demand, issues as to whether the fire was accidental are immaterial and are not to be submitted. (Post, pv. 205, 206.) 3. APPEAL AND ERROR. Review. Harmless error. The submission of such immaterial' issues and the receipt of considerable evidence tñereon was prejudicial, for it placed the insurers in the attitude of affirming a state of facts which they could not hope to prove. (Post, pp. 206r208.) Cases cited and approved: Cooper v. Bell, 127 Tenn., 142; Burton v. Farmers Association, 104 Tenn., 416; McElya v. Hill, 105 Tenn., 319; Crisman v. McMurray, 107 Tenn., 469; Pile v. Carpenter, 118 Tenn., 288. Code cited and construed: Sec. 6285 (S.). 4. EQUITY. Trial. Issues. Submission. Under Shannon’s Code, section 6285, declaring that the issues shall he made up by the parties under the direction of the court and set forth briefly and clearly the true questions of fact to be fried, it is the duty of the chancellor to° see that proper and material issues, and only such, are submitted to the jury, and he is in error when he submits to the jury an immaterial issue. (Post, VP- 206-208.) 5. INSURANCE. Fire Insurance. Penalties. Under Acts 1901, chapter 141, providing a twenty-five per cent, penalty if an insurance company refused to pay a fire loss within sixty days after demand shall have been made by the holder of the policy on which the loss occurred, a formal demand on the insurer after maturity of the policy is fixed according to its terms is necessary to entitle the insured to the penalty. (Post, vv. 208-213.) Acts cited and construed: Acts 1901, ch. 141. Case cited and distinguished: Insurance Co. v. Kiikpatrick, 129 Tenn., 55. 6. INSURANCE. Fire Insurance.' Statutes. Acts 1901, chapter 141, providing a penalty of twenty-five per cent, for nonpayment of a fire loss within sixty days after demand, being a penal statute, must be strictly construed. (Post, vp. 208-213.) 7. INSURANCE. Fire Insurance. Contracts. Modification. An insurance contract,» like any other contract, may be modified after it is made by express agreement of the parties. Post, W. 208-213.) 8. INSURANCE. Fire policies. Penalty. Fire occasioning a loss occurred on September 25, 1913. Proofs of loss were mailed November 1st of that year, the only demand for payment was by letter dated and mailed December 18th, and the original bills of complaint were filed on the 7th of the following January. The policies provided that loss should be payable sixty days after satisfactory proof of loss had been received by tbe insurers. Acts 1901, chapter 141, provides a penalty of twenty-five per cent, in case an insurer fails within sixty days after demand to pay the amount due. Held, that the insured was not entitled to the penalty; suit having been begun a few days after the policy matured, and payment within sixty days after demand after maturity not having been refused. {Post, pp. 208-213.) 9. ESTOPPEL. Claim under agreement. Where insured relied on a nonwaiver agreement with insurers, he cannot take advantage of an oral 'statement made hy his adjuster and assented to by the adjusters of the insurers which contradicted the provisions of the policies preserved by the non-waiver agreement. {Post, pp. 213-219.) Case cited and approved: Electric Light Co. v. Gas Company, 99 Tenn., 371. 10. INSURANCE. Fire insurance. Agreements. Where insured and insurers executed a nonwaiver agreement, a statement, made by insured’s adjuster and assented to by those of the insurers, that such agreement would not delay payment of claims for fire loss more than five days at the utmost, does not show insured was entitled to payment within such time and furnish basis for recovery of the twenty-five per cent, penalty provided for by Acts 1901, chapter 141, in case of refusal of payment within sixty days after demand, where the policies did not require payment until sixty days after furnishing proofs of loss. {Post, pp. 219, 220.) Acts cited and. construed: Acts 1901, ch. 141.
134 Tenn. 221Dayton Coal & Iron Co. v. Cincinnati, N. O. & T. P. Ry. Co. (1913)
COURTS. Conflicting jurisdiction. State courts and federal courts. Injunction. A State court has ho jurisdiction to enjoin an action in the federal court for freight charges in accordance with schedule filed, on the ground of a contract for a lower rate, notwithstanding Interstate Commerce Act (Act Cong. Feb. 4, 1887, ch. 104, 24 • Stat. 387 [IT. S. Comp. St. 1913, sec. 8595]) sec. 22, providing that nothing contained in the act shall abridge the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies. Case cited and approved: Divine v. Bank, 125 Tenn., 98. Case cited and distinguished: Texas & P. R. C'o. v. Abiline Cotton Oil Co., 204 U. S„ 446.
134 Tenn. 228Morgan Bros. v. Dayton Coal & Iron Co. (1915)
1. BANKRUPTCY. Conflicting jurisdiction. State and federal courts. The commencement of a bankruptcy proceeding against a corporation, in which there has been no adjudication of bankruptcy and no receiver appointed, is insufficient to deprive the State court of jurisdiction of a general creditors’ bill against the corporation. (Post. 00. 236-238.) Cases cited and approved: Hobbs v. Head & Dowst Co., 184 Fed., 414; Virginia Iron, Coal & Coke Co. v. Olcott, 197 Fed., 734; Benwood Brewing Co. (D. C.), 202 Fed., 326. Case cited and distinguished: New River Loan & Land Co. v. Ruffner Bros., 165 Fed., 881. 2. APPEAL AND ERROR. Conflicting jurisdiction. Presentation • of question. The objection to jurisdiction of the State courts of a general creditors’ bill because of commencement of bankruptcy proceedings against the defendant should be presented in the trial court, and, if overruled, an appeal taken from the decision. (Post, v. 238.) 3. CORPORATIONS. Creditors’ suit. Pleading. Bill. Where the complainants in a creditors’ bill attack the validity of a mortgage and bonds given by defendant corporation, the bill should set out facts relied upon to establish fraud in the transaction, and mere general statements will not suffice. (Post, 2W. 239, 240.) Case cited and approved: Merriman v. Lacefield, 51 Tenn., 217. Case cited and distinguished: Kelley Bros. v. Fletcher, 94 Tenn., 7. 4. FRAUDULENT CONVEYANCES. Pleading. Issues and proof. Wliere a general creditors’ bill undertakes, in connection with general statements of fraud, to state in detail why the transaction is attacked, and upon what grounds it is claimed to he fraudulent, the proof will be limited to such allegation. {Post, vv. 239, 240.) 5. CORPORATIONS. Foreign corporations. Validity of contracts. Filing charter. That a foreign corporation was not authorized to do business in the State, not having filed its charter with the secretary of State as required by statute, does not render a mortgage and debentures of the corporation void. (Post, pp. 240-242.) Case cited and approved: Louisville Property Co. v. Mayor & City Council of Nashville, 114 Tenn., 218. 6. CORPORATIONS. Creditors’ suit. Pleading. Issues and proof. Where a creditors’ bill against a mining corporation alleged that bonds, which purported to be for the purpose of taking up outstanding indebtedness, were in fact issued to protect the company in the event of any calamity, such as an explosion in the mines, proof that the holders of the corporate stock undertook, by various reorganizations, to exchange their stock holdings for bonds of the defendant company forms no basis of a decree for complainants. (Post, pp. 242, 243.) 7. CORPORATIONS. Contracts. Validity. Evidence. Where the parties by their pleadings and stipulations have made a case where a corporation has purchased property necessary and proper for corporate use and issued therefor its capital stock and bonds, a prima faoie case of valid payment for the stock and bonds is established. (Post, pp. 243-245.) Case cited and distinguished: Kelley Bros. v. Fletcher, 94 Tenn., 7. 8. CORPORATIONS. Bonds. Rights of holders. Bonds of a corporation, payable to a certain bank or other registered holder for the time being, and providing in case of a registered transfer that the principal and interest will be paid without regard to any equity between the company and the original or any intermediate holder, whether technically negotiable or not, are free from equitable defenses in the hands of an innocent holder. {Post, pp. 245-254.) Cases cited and approved: Strauss v. United Telegram Co., 164 Mass., 130; Raymond v. Middleton, 29 Pa., 530. Cases cited and distinguished: Cronin v. Patrick County (C. C.), .89 Fed., 79; De Voss v. City of Richmond, 18 Grat. (59 Va.), 338; In re Goy & Co., 2 L. R. Ch. Div., 149; In re Taylor’s Agreement Trusts, 2 L. R. Ch. Div., 737; In Re Gas Co., 20 L. T., 40; In-Re Tea Co., 10 L. R. Equity Cases, 157. 9.CORPORATIONS. Fraudulent conveyances. Persons entitled to assert invalidity. Subsequent creditors. The bonds and mortgage of a corporation may be attacked on the •ground that they are invalid as conveying consumable property or reserving other benefits to the mortgagor, who is permitted to continue in possession, by subsequent creditors. {Post, pp. 25.4-262.) Cases cited and aproved: Martin v. Oliver, 28 Tenn., 565; Gilbert v. Peppers, 65 W. Va., 355; McKeldin v. Gouldy, 91 Tenn., 677. Cases cited and distinguished: Tennessee Nat. Bank v. Ebbert, 56 Tenn., 165; Scott v. Keane, 87 Md., 723; Bank v. Watkins, 126 Tenn., 453. 10. CORPORATIONS. Bonds. Mortgages. Construction.. The court will not, unless constrained to do so by the terms of the instrument in the light of the surrounding circumstances, give to corporate bonds and mortgage such an interpretation as would make them void. {Post, pp. 262, 263.) Case cited and distinguished:. Gernt v. Floyd, 131 Tenn., 122. 11. CORPORATIONS. Fraudulent conveyance. Persons entitled to assort invalidity. Subsequent creditors. Where the property described on the face of a corporate mortgage is not of such nature as to make it fraudulent and void, it cannot be attacked by subsequent creditors on the ground that' the general conveying clause includes property not proper to be mortgaged, the possession and use of which is reserved to the mortgagor. (Post, pp. 263, 264.) 12. CORPORATIONS. Mortgage. Construction. Ejusdem Generis. “All property and estate.” In a mortgage, describing the property conveyed as «mineral lands, furnaces, equipment, etc., and “all property and estate wherever situate,” the quoted phrase refers to all property of a similar nature which may have been overlooked in the detailed description, and does not include cash on hand, commissary stock, iron ore, pig iron, etc., nor accounts receivable. (Post, pp. 264-267.) Cases cited and approved: Lynchburg v. N. & W. R. R. Co., 80 Va., 249: Benton v. Benton, 63 N. H., 289. Case cited and distinguished: Williams v. Williams, 18 Tenn., 26. 13. CHATTEL MORTGAGES. Transactions invalid. Retention of possession by mortgagor. Consumable property. A mortgage upon property necessarily consumable in its use, where possession and use is reserved in the grantor, is fraudulent upon its face and void. (Post, pp. 267-281.) Cases cited and approved: Bank v. Brier, 95 Tenn., 331; Austin v. Bell. 20 Johns. (N. Y.), 446; Mackie v. Cairns, 5 Cow. (N. Y.), 566; Ross v. Young, 37. Tenn., 629; Bodley v. Goodrich, 7 How., 276-278; Bank of ¡Rome v. Haselton, 83 Tenn., 237; Lowenstein Bros. v. Love, 84 Tenn., 660; W^de et al. v. Green, 22 Tenn., 549; Alabama Nat. Bank v. Coal & Ry. Co., 108 Ala., 288; Johnston & Stewart v. Riddle, 70 Ala., 219; Am. Bridge Co. v. Heidelbach, 94 U. S. 798; Fosdick v. Schall, 99 IT. S. 235; U. S. Trust Co. v. Railroad, 150 17. S., 307. Cases cited and distinguished: Darwin v. Handley,. 11 Tenn., 502; Somerville v. Horton, 12 Tenn., 549; Masson v. Anderson, 62 Tenn., 290; Doyle v. Smith, 41 Tenn., 15; Tenn. Nat. Bank v. Elbert & Co., 56 Tenn., 153; Bank v. Erwin, 2 Shan. Cas., 444; N. Y. Security & Trust Co. v. Saratoga Gas & Electric Light Co., 159 N. Y., 1-37; Clay v. Railroad Co., 53 Tenn., 421; Knapp v. Milwaukee Trust Co., 216 U. S., 552. 14. CHATTEL MORTGAGES. Rights of Creditors. Retention of possession by mortgagor. A mortgage on a stock of mereliandise, with, possession and right to continue business reserved to the mortgagor, is fraudulent upon its face and void. (Post, pp. 267-281.) 15. CHATTEL MORTGAGES. Rights of creditors. Retention of possession by mortgagor. A mortgage on personalty not necessarily consumable in its use, where possession and right to use the property is reserved in the grantor, will not be }velcL invalid, unless it appears from the instrument as a whole that the reservation is inconsistent with the purposes of the instrument and is for the general benefit and advantage of the grantor. (Post, pp. 267-281.0 16. CORPORATIONS. Mortgage. Construction and operation. Rents and profits. ■ Under a mortgage by a going concern of its real estate, plant, and establishment, together with its income, issues, and profits, choses in action, etc., reserving a right of user and enjoyment in the grantor until default, and giving the mortgagee the right to enter and take charge of the plant and operate it to discharge the mortgage debt, the' income, issues, profit, etc., 'do not pass under the lien of the mortgage until default and possession thereunder by the trustee, and the lien then only attaches to such income, issues, etc., as arise after defauult and possession thus taken. (Post, pv. 267-281.) 17. CORPORATIONS. Fraudulent conveyance. Transactions invalid. Retention of possession by mortgagor. A mortgage by a corporation of its real estate, plant, equipment, stock, bonds, leases, together with the issues and profits, reserving in the mortgagor the right of possession until default and possession taken by the mortgagee, does not indicate that the reservations are made for the benefit of the mortgagor and to cover up the property from other creditors, and it not invalid as to such creditors. (Post, pp.- 281, 282.) 18. CORPORATIONS. Foreign corporations. Insolvency. Acts 1877, ch. 31, sec. 5, providing that, on insolvency of a foreign corporation carrying on business in the State, resident creditors have a priority over simple contract creditors of any other country, is valid to the extent that corporations of another State will he deferred thereunder to resident creditors. (Post, pp. 282, 283.) Acts cited and construed: Acts 1877, ch. 31, sec. 5. Cases cited- and approved: McClung v. Embreeville, etc., Co., 103 Tenn., 399; Blake v. McClung, 172 U. S., 239. 19. TREATIES. Construction. Hay-Pauncefote treaty. The Hay-Pauncefote Treaty (31 Stat. 1939) art. 2, providing that the citizens or subjects of each of the contracting parties have full power to dispose of' their personal property within the territories of the other, by testament, donation, or otherwise, does not affect the validity or application of Acts 1877, ch. 31, sec. 5, giving resident creditors of an insolvent foreign corporation a preference over nonresidents. (Post, ¡pp. 283, 284.)
134 Tenn. 285Graham v. State (1915)
1. SUNDAY. Statute. Penalty. Exclusion of criminal. Shannon’s Code, sec. 3029, declaring a forfeiture hy any person exercising any common avocation onc Sunday, suable hy any one who will sue therefor, and giving one-half of the forfeit to the person suing and the other half to the county, is a mere penalty statute, not intended to interfere with the State’s right hy criminal proceedings to prosecute indictments based on the common law. (Post, pp. 287-291.) Cases cited and distinguished: Gunter v. State, 69 Tenn., 129; State v. Graham, 35 Tenn., 134; Bell v. State, 31 Tenn., 42; Parker v. State, 84 Tenn., 476. Code cited and construed: Sec. 3029 (S.). 2. SUNDAY. Nonobservance. Indictment. The unnessary performance of secular labor on the Sabbath day is an indictable offense, where it is done so that it prejudicially affects the morals or health of the community, thereby creating a common nuisance. (Post, pp. 287-291.) 3. SUNDAY. Indictment. Sufficiency. An indictment averring that defendant’s operation of his moving picture show on Sunday was to the common nuisance against the peace and dignity of the State, sufficiently averred that the public was disturbed by its operation. (Post,' p. 292.) Case cited and approved: Gaines v. State, 75 Tenn., 410. 4. SUNDAY. Prosecution. Sufficiency of evidence. Plaintiff’s conduct of a moving picture show on successive Sundays, located on a leading thoroughfare of the city to the observance of passers-by in the matter of seeing the large crowds going in and out of the show, warranted his conviction. (Post, p. 292.) 5. SUNDAY. Observance. Common law. The common law recognized the sanctity of the Lord’s Day, which principle has become a part of the law of Tennessee. (Post, p. 292.) Cases cited and approved: Moss v. State, 131 Tenn., 94; State ex rel. v. Baseball Club, 127 Tenn., 310.
134 Tenn. 293Lewisburg & N. R. v. Hinds (1915)
1. EMINENT DOMAIN. Railroads. Adjacent landowners. Consequential damages. The common-law rule is that owners of land, no part of which has been taken for a railroad, but which land is adjacent thereto, are not entitled to compensation for damages naturally and unavoidably resulting- frqm the proper conduct of the road, which are shared generally by owners whose lands lie within the range of the inconveniences necessarily incident to proximity to a railroad, including noises and vibrations incident to running trains, the necessary emission of smoke and sparks, and similar annoyances. (Post, pv. 305-310.) Cases cited and approved: Northern Transp. Co. v. Chicago, 99 U. S., 635; Beseman v. Penn. R. Co., 50 N. J. Law, 235; Richards v. Washington Terminal Co., 233 U. S., 546; Railroad v. Bing-ham, 87 Tenn., 522; Harmon v. Railroad, 87 Tenn., 614; Chattanooga v. Dowling, 101 Tenn., 342; Brumit v. Railroad, 106 Tenn., 124; Terminal Co. v. Jacobs, 109 Tenn., 727; Terminal Co. v. Lellyett, 114 Tenn., 368; Gossett v. Railroad, 115 Tenn., 376; Coyne v. Memphis, 118 Tenn., 651. Code cited and construed: sec. 1857 (S.). 2. EMINENT DOMAIN. “Damages.” Rule for assessment. The word “damages,” as used in Shannon’s Code, sec. 1857, regulating assessment of damages, does not mean money exacted by retributive justice for a legal injury inflicted, but purchase money for a property taken, pursuant to law, and compensation for loss in value incidentally imposed upon the rest of the tract as a consequence of the taking of a part, and in fixing such compensation the owner of the land must be treated as one offering it for sale at a fair price, while not under any stress of circumstances that would induce him to sacrifice his property, and the condemnor as an intending buyer, likewise free from stress, as not being forced to buy. (Post, pp. 3.10-313.) Cases cited and approved: Wray v. Railroad, 113 Tenn., 544; Woodfolk v. Railroad, 32 Tenn., 422; City of Memphis v. Bolton, 56 Tenn., 508; Alloway v. Nashville, 88 Tenn., 510; Wray v. Railroad, 113 Tenn., 544; So. Ry..Co. v. City of Memphis, 126 Tenn., 267; So. Ry. Co. v. Michaels, 126 Tenn., 702; Idaho-Western Ry. Co. v. Columbia Conference, 20-Idaho, 568. 3. EMINENT DOMAIN. Railroads. Consequential damages. The compensation which the landowner is entitled to recover for the diminution of the value of the land remaining after the condemnation of a part is not restricted to damages arising from the construction and location of a railroad, but he is entitled to consequential damages arising from the operation of the road, whereby such remaining property is lessened in value, including danger of fire, probable annoyance from noise, smoke, cinders, dust, odors, or vapors from engines, the jarring caused by the passing of trains upon the track over the land taken, and anything which would, in an appreciable degree, capable of ascertainment in money, injure the market value of the land left. (Post, w. 313, 326.) Cases cited and approved: Blesch v. Railroad Co., 48 Wis., 188; Concord R. R. Co. v. Greely, 23 N. H., 237; Railroad v. Stick-ney, 150 Ill., 362; Railroad v. Church, 104 N. C., 531; Railroad v. Ball, 5 Ohio St., 575; Paducah & Memphis R .R. Co. v. Stovall, 59 Tenn., 1; Acker v. Knoxville, 117 Tenn., 224; Kersey v. Schuylkill River East Side R. Co., 133 Pa., 234; Little Rock, etc., Ry. Co. v. Allen, 41 Ark., 431; Elizabeth, etc., R. R. Co. v. Combs, 10 Bush. (Ky.), 382; Chicago, etc., R. R. Co. v. Atter-bury, 156 Ill., 281; Matter of N. Y. etc., R. R. Co., 15 Hun., (N. Y.), 63; Comstock v. Clearfield, etc., Ry. Co., 169 Pa., .582; Weyer v. Chicago, etc., R. R. Co., 68 Wis., 180; Railroad v. Nix, 137 Ill., 141; Railroad v. MeC'omb, 60 Me., 290; County of Blue Earth v. Railroad, 28 Minn., 503; Bowen v. Railroad, 17 S. C., 574; Tidewater v. Shartzer, 107 Va., 562; Railroad v. Columbia Conference, 20 Idaho, 568; Railroad v. Williams, 133 Ga., 679; Railroad v. Doney, 3 Kan. App., 515; Railroad v. Tidrick, 137 Ill. App., 553; Railroad v. McAuliff, 43 Kan., 187; Sabin v. Railroad, 25 Vt., 370; Shano. v. Bridge Co., 189 Pa., 246; Railroad v. Raine, 114 Tenn., 569; Railroad v. Todd, 39 Neb., 818; Vaulx v. Railroad, 120 Tenn., 316; Hord v. Railroad, 122 Tenn., 399. Cases cited and distinguished: Railroad v. Stovall, 59 Tenn., 1, 3, 4; Wray v. Railroad, 113 Tenn., 557. Code cited and construed: Sec. 1857 (S.). 4. EMINENT DOMAIN. Railroads. “General damages.” In condemnation of land for a railroad, the term “general damages” may be defined as damages common to the entire community through which the railroad runs, and which do not directly and proximately result from the taking of the right of way strip and the proper construction and proper operation thereon of the railroad. (Post, m>. 326-333.) Cases cited and approved: Chicago v. Burcky, 158 Ill., 103; Miller v. Schenck, 78 Iowa, 372-375; Sheedy v. Union Press Brick-works, 25 Mo. App., 527; Thomas v. Intercounty St. Ry., 167 Pa., 120; Flynn v. Taylor, 127 N. Y., 596; X. C. R. R. Co. v. Trustees of Schools, 212 Ill., 406. Cases cited and distinguished: Wylie v. Elwood, 134 Ill., 281; Aldrich y. Wetmore, 52 Minn., 164; In Re Melon Street, 182 Pa., 397; Penn. R. R. Co.’s Appeal, 115 Pa., 514; Bangor & P. R. R. Co. v. McComb, 60 Me., 290; Walker v. Old Colony & Newport Ry. Co., 103 Mass., 10. 5. EMINENT DOMAIN. Railroads. General damages. A landowner, part of whose land is condemned for a railroad, is entitled to such general damages as are suffered by all persons within the range of the annoyances necessarily arising from the proper operation of a railroad, in so far as such • matters' arise from operation over the portion of his land condemned and actually impair the market value of that part of the land remaining, though the law affords no remedy to adjacent landowners similarly affected by such annoyances, no part of whose land is condemned, since, considered as having the liberty of contract, the owner may, in fixing his price, protect himself against such matters as to which the law would not otherwise afford him redress, while the adjacent owner, being without the purview of the constitutional provision providing compensation for property taken by condemnation, is left to the common law, which affords him no remedy against such general damages. (Post, pv. 3-33-339.) Case cited and distinguished: Blesch v. Chicago & Northwestern Ry. Co., 48 Wis., 168. 6. EVIDENCE. Eminent do,main. Owner’s previous offer of sale. Discretion. On the issue of damages in a proceeding in eminent domain by a railroad company, the exclusion of the testimony of a witness that the owner of the land, part of which was condemned, had several years previously stated that the land could be bought for $30,000, where such offer was made at a time when the real estate market was dead and before any improvements had been made upon a neighboring tract, which was later converted into a park, and before a boulevard bad been projected along tbe tract, was not an abuse of tbe trial court’s discretion. (Post, pp. 339, 340.) 7. EVIDENCE. Eminent domain. Price of neighboring tract bought for park. Discretion. Tbe refusal of tbe trial judge to permit evidence as to tbe purchase price of the tract bought for such park, which was purchased several years previously to such condemnation, the subsequent creation of such park and the boulevard having greatly enhanced property values in the vicinity, was not an abuse of discretion. (Post, p. 340.) 8. EVIDENCE. Railroads. Condemnation. Nearby land. Purchase price. Discretion. The exclusion in such condemnation proceeding of evidence of the price paid for a neighboring tract of land several years previously, where the establishment of such park and boulevard had made eonimunication between such tract and a city much better, and had enhanced the value thereof, and 'the land had been purchased at what amounted to a forced sale by reason of financial difficulties of the then owners, was not an abuse of discretion. (Post, pv. 3.41. 342.) 9. EVIDENCE. Eminent domain. Damages. Other sales. Admissibility. In arriving at the value of land taken by eminent domain, evidence of other sales is generally competent. (Post, p. 342.) Case cited and distinguished: Union Railway Co. v. Hunton, 114 Tenn., 609. 10.APPEAL AND ERROR. Evidence. Other sales. Discretion. Review. The extent to which other sales of land are admissible to prove the value of the land in controversy, in proceedings in eminent domain, with regard to the degree of similarity of situation and circumstances necessary to give such sales sufficient probative value, is largely within the trial court’s discretion, but such discretion is not unlimited, and will in proper cases be reviewed on appeal. (Post, pp. 342, 343.) Cases cited and approved: St. L., etc., Ry. Co. v. G-uswelle, 236 Ill., 214; Chandler v. Jamaica Pond Acqueduct Co., 122 Mass., 305; Amory v. Melrose, 162 Mass., 556; Watson et al. v. Mil. & Mont. R. R. C'o., 57 Wis., 350; Stinson v. Chicago, St. P. & M. Ry. Co., 27 Minn., 284; Seattle & Montana Ry. Co. v. Gilchrist, 4 Wash., 509. 11. EMINENT DOMAIN. Damages. Appeal. Defective bond. Mo. tion to dismiss appeal. Laches. In a railroad’s condemnation proceeding, plaintiff appealed from the report of the jury of view, and obtained an order to take possession upon giving bond. Defendant landowners also excepted on the ground that the award was inadequate, and, the exceptions being overruled, took an appeal, which was granted in the name of all the defendants on condition that they file an appeal bond for costs. Some three years later, when the case came up for trial, the parties stipulated that the only question was the value of the land taken and the amount of damages. After a month’s trial, involving the examination of fifty witnesses, and after the testimony was closed and the case fully argued, plaintiff moved to dismiss the appeal because defendants’ appeal bond had not been executed by all the parties defendant. Plaintiff admitted discovering the defect two weeks previous to the time of making the motion. Sold, that the motion was properly overruled because it came too late. {Post, pp. 344-346.) Cases cited and approved: Gillespie v. Goddard, 48 Tenn., 777; Tedder v. Odom, 49 Tenn., 50; Staub v. Williams, 2 Leg. Rep., 183; Snyder v. Summers, 69 Tenn., 481; Morris v. Smith, 30 Tenn., 135; Adamson v. Hurt, 3 Shan. Cas., 424; Staub v. Williams, 69 Tenn., 36: Wilson v. Corry, 69 Tenn., 391; La Follette v. Road Comm’s., 105 Tenn., 536; Jones v. Ducktown, etc., Co., 109 Tenn., 375. 12. EMINENT DOMAIN. Damages. Appeal. Defective bond. Amendment. Discretion. Under such circumstances it was a proper exercise of the trial court’s discretion to allow defendants to amend such bond by the insertion of the necessary names. {Post, pp. 344-346.) 13. APPEAL AND ERROR. Harmless error. . Cross-examination. Where, in a railroad’s condemnation proceeding, plaintiffs witness testified that defendant’s land would he benefited by the railroad because it could be used for factory sites, pernditting defendant to prove by the witness on cross-examination that the railroad was a departmental line of a trunk line road, to be used to transport fast through freight trains around the city without entering the terminals, from which it would be inferred that there would be no stops made on plaintiffs land, was harmless error, where it was not contended that there were any incidental benefits to defendant landowner, and no controversy existed as to the right of condemnation. (Post, pp. 346, 347.) 14. EMINENT DOMAIN. Damages. Withholding land from sale. Purpose. Admissibility. In such proceeding, evidence by one of the landowners that his his reason for not making any effort to sell the land for twenty-five years was that the land was held because of flattering prospects of increase in value was properly admitted, since it was relevant for the purpose of meeting the inference which might be drawn from the otherwise unexplained fact that the land had been held from the market for so long a period. (Post, pp. 347, 348.) 15. APPEAL AND ERROR. Specification.of error. Insufficiency. The specification of error that in such proceeding the court permitted defendant to cross-examine a witness and require him to detail what had been done with a tract of land near another city, and that he was further allowed to tell how the tract involved in the ease at bar could be platted for residence seekers, etc., was insufficient under supreme court rule 14, subd. 3 (126 Tenn., 722, 160 S. W., ix), that a specification on the admission or rejection of evidence must quote the full substance thereof, with a citation of the record where the evidence and ruling may be found. (Post, p. 348.) 16. APPEAL AND ERROR. Specification of error. Insufficiency. The further specification that the court permitted defendant to assume that the witness was arguing the case with him and was evincing partiality, whereupon the court stated that the questions asked were proper, was insufficient for the same reason, since such statement was not a statement of the substance of such questions, hut merely the conclusion of counsel as to their effect. (Post, p. 348.) 17. WITNESSES. Cross-examination. Scope. Where, in a railroad’s condemnation proceeding, one of its witnesses testified to the impossibility of making proper streets over defendants’ land for the purposes of platting and subdivision, as bearing on the question of the value of the land, it was proper to permit the landowner, on cross-examination, to require the witness' to detail the platting of a tract of land near another city, and to tell how defendants’ land could be modeled, outlined, and platted for residence seekers. (Post, pp. 348, 349.) 18. CERTIORARI. Petition. Specification of error. Evidence. Defective assignment. On certiorari to review the judgment of the court of civil appeals in condemnation proceeding, the specification of error that the court allowed defendant to testify that inferior buildings adjacent to the neighboring park would not detract from the value of defendants’ property, nor prevent the park from contributing to the desirability of defendants’ land as a residence district, held insufficient, where there was no statement of objections made to the evidence and no reason given showing a prima facie case of error, as required by supreme court rule 12 (126 Tenn., 720, 160 S. W. viii), relating to petitions for cer-tiorari to remove cases from the civil court of appeals to the supreme court for review. (Post, p. 349.) 19. WITNESSES. Cross-examination. Producing for first time on rebuttal. Diligence. In such condemnation proceeding, where plaintiff offered a new witness' in rebuttal, permitting defendant on cross-examination to question the witness concerning his relation by marriage to one employed by plaintiff, and the interest of such person in property adjacent to the proposed road, for the purpose of showing plaintiff’s familiarity with the witness as hearing on the failure to use diligence in producing such witness on plaintiff’s original evidence, was not prejudicial to plaintiff. (Post, pp. 349-351.) 20. APPEAL AND ERROR. Harmless error. Cross-examination. Improper statement by court. Where, in such proceeding, a witness to incidental damages, when cross-examined by plaintiff as to how he arrived at a certain amount as representing the damages, persistently answeréd that he thought such figure was correct, it was harmless error for the trial court, in stopping such cross-examination, to remark that the witness had answered a number of times that ' such was his estimate, and that it was not perceived how he could answer it in any other way. (Post, pp. 351, 352.) 21. WITNESSES. Stopping cross-examination. Discretion. The stopping of such cross-examination was not an abuse of the trial court’s discretion to check cross-examination. (Post, pp. 351, 352.) 22. EMINENT DOMAIN. Taking part of tract. Excessive damages. On appeal from an award to the landowner, in a railroad’s condemnation proceeding, of $5,775 as the value of a strip of two and thirty-one one-hundredths acres taken for a right of way through a fifty-six-acre tract of land lying near Shelby Park in East Nashville, and of $32,000 for incidental damages, where the testimony as to the amount of damages showed an astonishing contrariety of opinion, not only as between the opposing witnesses but as between witnesses on the same side, so as to show that the opinions expressed were essentially uncertain and not very reliable, held that justice required a re-mittitur of $10,000 in reduction of such damages. (Post, pp. 352-369.) Cases cited and approved: Woodfolk v. N. & C. R.- R. Co., 32 Tenn., 422; Vaulx v. Railroad, 120 Tenn., 316; Hord v. Railroad, 122 Tenn., 399; Railroad v. Stovall, 59 Tenn., 1, 3, 4; Harmon v. Railroad, 87 Tenn., 614; Chattanooga v. Dowling, 101 Tenn., 842; Bruinit v. Railroad, 106 Tenn., 124; Terminal Co. v. Jacobs. 109 Tenn.. 727; Terminal Co. v. Lellyett, 114 Tenn., 368; Gossett v. Railroad, 115 Tenn., 376; Coyne v. Memphis, 118 Tenn., 651. Case cited and distinguished: Railroad v. Bingham, 87 Tenn., 522. Codes cited and construed: Secs. 1844, 1856, 1857 (S.). Constitution cited and construed: Sec. 21, art. 1.
134 Tenn. 370Pile v. Pile (1915)
1. JUDGMENT. Conclusiveness. Matters not in issue. The decree in a, oartiiion suit, the pleadings of which, most liberally construed, did not call for an adjudication as to the rights of R. against P., was not conclusive as to such rights in an ejectment suit between such parties, since, that a judgment may be effective as res adjudieata, it is essential that the party sought to be precluded should have sued or been sued in both cases in the same capacity or character, and to enforce or have adjudged the same right, while it must appear, not only that the thing affected by the two suits is the same, but that the proceedings were for the same object or purpose; the same point being directly in issue. (Post, pp. 375-377.) Cases cited and approved: Bank v. Smith, 110 Tenn., 338; Melton v. Pace, 103 Tenn., 484; Brewster v. G-alloway, 72 Tenn., 558; Coulter v. Davis, 81 Tenn., 451: Harris v. Mason, 120 Tenn., 668; Bakin v. Riddle, 127 Tenn., 426. 2. JUDGMENT. Conclusiveness. Parties and issues. When a second suit is upon the same cause of action and between the same parties as the first, the judgment in the former is conclusive in the latter as to every question which was or might have been presented and determined in the former; but when the second suit is on a different cause of action, but between the same parties, the judgment in the former action operates as an estoppel effective in the latter as to every point in question which was actually litigated and determined in the first action, but. is not .conclusive as to matters which might have been, but were not. litigated. (Post, v. 377.) Case cited and approved: Southern Pac. R. Co. v. United States, 168 U. S„ 1. 3. JUDGMENT. Conclusiveness. Burden of proof. Where the record is such that there is or may he a material issue in a second suit upon a different cause of action between the same parties which may not have been decided in the former action, the judgment therein does not estop from litigating such issue, unless by pleading or proof, the party asserting the estoppel establishes that the issue was determined in the former suit. (Post, m. 377, 378.) Cases cited and approved: Harrison v. Remington Paper Co., 140 Fed., 385: Dooley v. Potter, 140 Mass., 49; Ryder v. Loomis, 161 Mass., 161; Huntzicker v. Crocker, 135 Wis., 38. 4. JUDGMENT. Conclusiveness. Separate titles. Where the same person has two distinct rights over land, the subject-matter of a partition suit, and the pleadings touch but one of such rights, his being made a party to the suit will not preclude him from later asserting or defending his rights over the land so far as not involved by the pleadings, since as to matters without the pleadings he is not a party. (Post, p. 3.78.) Case cited and approved: McNutt v. Trogden, 29 W. Va., 469.
134 Tenn. 379Litchfield Shuttle Co. v. Cumberland Valley Nat. Bank (1915)
BANKS AND BANKING. Payment of checks. Forged endorsements. "Where the manager of a ‘corporation’s branch business,' with, authority to draw checks in its name on the bank account which it kept for such branch business, and issue them, drew checks thereon, payable to persons with whom it had business dealings, forged their indorsements, and then procured the money thereon, either directly frojn the bank, or by negotiating them to others, the bank is not liable to the corporation for the money so paid out, it being misled by the fault of the drawer; and this not only independently of, but under, Negotiable Instruments Act (Laws 1899, ch. 94), by sections 65 of which the manager, when negotiating them, warranted that they were genuine and in all respects what they purported to be, so that by section 23 he and his principal were precluded from setting up the forgery. Acts cited and construed: Acts 1899, ch. 94. Cases cited and approved: Pickle v. Muse, 88 Tenn., 384; Jackson v. Bank, 92 Tenn., 159; Chism-Churchill & Co. v. Bank, 96 Tenn., 644; Farmer v. Bank, 100 Tenn., 187; Water Co. y. Bank, 123 Tenn.. 364; Coggill v. Am. Ex. Bank, 1 N. Y. 113; Meacher v. Fort, 3 Hill (S. C.), 227; Water Co. v. Bank, 123 Tenn., 364. Case cited and distinguished: Hortsman v. Henshaw, 11 How., 177
134 Tenn. 387Holman v. Higgins (1915)
ALTERATION OF INSTRUMENTS. Notes. Filling in date. Implied authority. "Where the makers of a note, other than C., for whose "benefit it was made, gave it to him to negotiate, with place for the payee’s name blank, and the date “July -,” they gave him implied authority, not merely to fill in the name of whoever should become the payee, but the date of the actual delivery to the payee, so long as it was done in a reasonable time, so that filling in such date, September 1st, at his direction, was not an alteration. Acts cited and construed: Acts 1899, ch. 94, sec. 125. Cases cited and approved: Taylor v. Taylor, 80 Tenn., 714; Crockett v. Thomason, 37 Tenn., 342; Waldron v. Young, 56 Tenn., 777; Michigan Bank v. E'ldred, 9 Wall. (76 U. S.), 554; 'Gill v. Hopkins, 19 Ill. App., 74; -Bowers v-. Jewell, 2 N. H., 543-; Inglish v. Breneman, 5 Ark., 377; Grocery Co. v. Marshall, 131 Tenn., 270; Page v. Morrel, 3 Abb. Dec., 433.
134 Tenn. 397Tennessee Cent. R. v. Herb (1915)
1. NEGLIGENCE. Contributory negligence. Burden of proof. Where a plaintiff’s contributory negligence does not appear from tbe proof adduced by bim, tbe burden of showing its existence rests on tbe defendant. (Post, p. 399.) Cases cited and approved: Stewart v. Nashville, 96 Tenn., 50; Burke v. Street Railway, 102 Tenn., 409. 2. DEATH. Due care. Presumption. There is a presumption arising out of the instinct of self-preservation that a decedent was in. the exercise of ordinary care when fatally injured, prevailing until overcome by competent evidence, and which may prevail where there are no eyewitnesses of or any direct testimony as to his conduct. (Post, pp. 399-401.) Cases cited and approved: Oklahoma City v. Read, 33 L. R. A. (N. S.), 1085; Insurance Co. v. Bennett, 90 Tenn., 256; Traveler’s Ins. Co. v. MeConkey, 127 U. S., 661. Cases cited and distinguished: Chase v. Railroad Co., 77 Me., 62: McLane v. Perkins, 92 Me.. 39; Reynolds v. Railroad, 58 N. Y., 248; Wiwirowski v. Lake Shore, etc., R. Co., 124 N. Y., 420; Railroad v. Landrigan, 191 U. S., 461.
134 Tenn. 402Madison Trust Co. v. Stahlman (1915)
1. EQUITY. Submission of special interrogatories to jury. In an action on a note executed and given in return for corporate stock, wherein the defendant sought cancellation on the ground that it was secured hv fraud, held not error to submit certain interrogatories to the jury. (Post, pp. 411-413.) 2. APPEAL AND ERROR. Review. Matters not necessary to decision. Where the facts founds by the jury are sufficient to support the judgment rendered, the court on appeal need not consider whether the successful party would be entitled to new trial on another finding of fact made adversely to him. (Post, p. 413.) 3. CORPORATIONS. Subscriptions to stock. False representations. Evidence. Evidence held to show such material false representations as to the value of corporate stock for which a note was given and renewals were taken as to preclude recovery against the maker. (Post, pp. 413-417.) 4. CORPORATIONS. Authority of officers. Interest adverse to principal. Although officers of a corporation' are systematically looting it, they are not so adverse in interest as to relieve the company of responsibility for- fraudulent representations made by such officers inducing a sale of stock of the corporations to de-defendant, so as to invalidate defendant’s note given for the price thereof. (Post, pp. 417-420.) 5. BILLS AND NOTES. “Bona fide purchaser.” Renewals. Defenses. .Notice affecting the holder of a note must exist at the time he acquires the instrument, and notice of a defense brought home to him at the time he takes a renewal note does not debar him from- claiming as a hona fide purchaser; but this rule is not applicable to a note procured by the fraud of a corporation, and thereafter transferred to another corporation under the same management and control, which latter corporation took a renewal note. (Post, pp. 420-422.) Case cited and approved: Coyne v. Anderson’s Ex’rs. (Ky.), 73 S.W. 753. 6. BILLS AND NOTES. Consideration. Fraud. Representations. Where mere future promises are insufficient to support a charge of fraud, statements of an agent of a corporation that its stock was worth more than it had been when purchased by defendant, and that defendant could get a good price for it, as a result of which defendant removed his note given for the price, were not mere future promises. (Post, pp. 422, 423.) Cases cited and approved: Maney v. Porter, 22 Tenn., 347; Chamberlain v. Coke Co., 92 Tenn., 13. 7. BILLS AND NOTES. Defense to note for price. The C. Trust Company sold its stock to defendant and took his note for the price, and thereafter obtained a controlling interest in the M. Trust Company and transferred such note to it. The M. Trust Company by fraudulent representations as to the value of the stock induced defendant to give a renewal note. Helé, in an action by the M. Trust Company to recover on a note in which defendant interposed a defense of fraud not only as to the C. Trust Company, but as to the M. Trust Company, the latter corporation could not contend that, inasmuch as the stock purchased had become a trust fund in favor of the creditors of the C. Trust Company, which had become insolvent, defendant was not permitted to interpose such defense, since the rights of the creditors of the C. Trust Company were not involved, and since plaintiff corporation, in view of Banking Act N. Y. (Consol. Laws, ch. 2) sec. 186, subsec. 1, authorizing banking corporations to act as agent, was chargeable with the fraud committed by the M. Trust Company. (Post, pp. 423-428.) Cases cited and approved: Pittsburg, etc., Ry. Co. v. Dodd et al„ 115 Ky., 176; Farmers’ Loan & Trust Co. v. N. Y. & Nor. Ry. Co., 150 N. Y„ 410. Cases cited and distinguished: Towles & Co. v. Miles, 1S1 Tenn., 79; Bank v. Campbell, 23 Tenn., 394.
134 Tenn. 429Central Hospital for Insane v. Adams (1915)
FROM WILSON Appeal from the Chancery Court of Wilson County. —J. W. Stout, Chancellor.
134 Tenn. 438Allen v. Chamberlain (1915)
1. MASTER AND SERVANT. Vice principal. Section foreman. A railroad section foreman is a superior servant to the laborers in his gang and a vice principal. (Post, pp. 440, 441.) Cases cited and approved: Railroad v. Northington, 91 Tenn., 56; Elec. Ry. Co. v. Lawson, 101 Tenn., 406; Gann v. Railroad, 101 Tenn., 3-80; Railroad v. Edwards, 111 Tenn., 31; Railroad v. Bolton, 99 Tenn., 276; Railroad v. Edwards, 111 Tenn., 31. 2. MASTER AND SERVANT. Injuries to servant. “Fellow servant.” Where a railroad employee, member of a section crew and riding on a hand car in charge of the section foreman, who permitted it to run at high speed, was injured by the latter’s negligence in suddenly applying the brake, the road was not liable, since in taking part in the active operation of the hand car the foreman became a fellow servant of the injured employee; construction, preparation, and preservation being duties that the law imposes primarily upon the master, but operation being a duty imposed upon the servant. (Post, pp. 441-446.) Cases cited and approved: Tills v. Railroad Co., 20 L. R. A. (N. S.), 434; Railroad v. Martin, 87 Tenn., 398; Hopkins v. Railroad, 96 Tenn., 409; Northern Pac. Ry. Co. v. Charless, 162 TJ. S„ 359; Railway v. Northington, 91 Tenn., 56; Railroad v. Baldwin, 113 Tenn., 409; Electric Ry. Co. v. Lawson, 101 Tenn., 406. Cases cited and distinguished: National Fertilizer Co. v. Travis, 102 Tenn., 16; Railroad v. Edwards, 111 Tenn., 31; St. Louis, etc., Ry. Co. v. Needham, 63 Fed., 107; Railroad v. Dillard, 114 Tenn., 240. 3. MASTER AND SERVANT. Fellow servant. Question of law. Where the facts are stated, the auestion whether a person is a fellow servant or a superior is of law for the court. {Post, pp. 441-446.)
134 Tenn. 447Nashville, C. & St. L. Ry. v. Bolton (1915)
1. LIMITATION OF ACTIONS. Commencement of action. New action. Statute. Construction. Shannon’s Code, sec. 4446, providing that, if an action is commenced within the time limited, hut judgment is rendered against the plaintiff on any ground not concluding his right of action, or where the judgment is rendered for the plaintiff and and is arrested or reversed bn appeal, plaintiff may commence a new action within one year, is remedial, and should he liberally construed in furtherance of its purpose. (Post, p. 450.) Code cited and construed: Sec. 4446 (S.) 2. LIMITATION OF ACTIONS. Nonsuit. Statute. Under such statute, the taking of a voluntary nonsuit entitles a plaintiff to the year in which to begin a second suit. {Post, pp. 450, 451.) Cases cited and approved: Memphis, etc., R. Co. v. Pillow, 56 Tenn., 248; Hooper v. Atlanta, etc., R. Co., 106 Tenn., 28; La Follyette Coal, etc., Co. v. Minton, 117 Tenn., 415. ,3. LIMITATION OF ACTIONS. Dismissal. New suit. Statute. Such statute applies to actions in equity as well as to actions at law, and the plaintiffs failure to file a declaration which results in a dismissal of a suit does not prevent the bringing of a new suit. {Post, pp. 450, 451.) . 4. LIMITATION OF ACTIONS. Voluntary nonsuit. .New action. Statute. “Reversed.” Under such statute, plaintiff, who obtained a judgment which was reversed and remanded, and who after remand took a voluntary nonsuit, might commence a new action within the year following the nonsuit, and was not required to commence such action within one year from reversal, as the word “reversed” means a reversal of the judgment nisi that terminates in the appellate court, the suit without an adjudication of the merits, and not a reversal with a remand for a new trial. (Post, pp. 451-456.) Acts cited and construed: Acts 1715, ch. 27, sec. 6; Acts 1819', ch. 28, sec. 3, Cases cited and approved: Hutter v. Paige Iron Works, 127 Ill. App„ 177; Lawrence v. Shreve, 26 Mo., 492; Strottman v. St. Louis, etc., R. Co., 228 Mo., 154; Stuber v. Railroad, 113 Tenn., 305; Railroad v. Bentz, 108 Tenn., 670. Cases cited and distinguished: Arnett v. Coffey, 5 Colo. App., 560; Carroll v. Alabama, etc., R. Co. (C. C.), 60 Fed., 549; Napier v. Foster, 80 Ala., 379. Code cited and construed: Sec. 2755 (1858.)
134 Tenn. 457Phillips v. Rooker (1915)
1. ELECTION OF REMEDIES. Acts constituting election. An election of remedies is the adoption hy an unequivocal act of one of two existing alternative remedial rights, inconsistent and not reconcilable with each other, the effect of which is to preclude a resort by the plaintiff or creditor to the other. (.Post, p. 462.) 2. ELECTION OF REMEDIES. ■ Acts constituting. Where the plaintiffs took a decree against the defendants B. and C., who, as agents of the defendant company, had orally assumed a contract for timber rights on behalf of the defendant R.., there being but one credit extended and one liability, the plaitiffs could not proceed later against the company as principal, since, where both the agent and the principal are sued together and, with full knowledge, the creditor takes judgment against the agent, there is a decisive act of election, although it does not result in satisfaction of the debt, and his case against the principal for later judgment must fail, although the principal, and not the agent, received the benefit of the transaction. (Post, pp. 462-466.) Cases cited and approved: Tuthill v. Wilson, 90 N. Y. 423; Murphy v. Hutchinson, 93 Miss.,' 643; Gay v. Kelley, 109 Minn., 101; Kingsley v. Davis, 104 Mass., 178; Sessions v. Block, 40 Mo. App., 569;" Tew v. Wolfshon, 77 App. Div., 454; Coles v. McKenna, 80 N. J. Law, 48; Lindquist v. Dickson, 98 Minn., 369: Priesly v. Fernie, 3 H. & C. (Exch.), 977; Kendall v. Hamilton, L. R, 4 App. Cas., 504; Calder v. Matthews (K. B.), 6 C. P. 486; Cross v. Matthews (K. B.), 91 Law T. Rep., 500; Thompson v Howard, 31 Mich., 309; Fowler v. Bowery Savings Bank, 113 N. Y., 450; Clark v. Rivers, L. R., 5 Eq., 91. Cases cited and distinguished: Ahrens v. Cohb, 28 Tenn., 643; Robh v. Vos, 155 XT. S., 13. 3. ELECTION OF REMEDIES. Effect. Change of position by the other party. “Estoppel in pais.” An “election” differs from an “estoppel in pais" in that in order to be effective it need not be acted upon by the other party by way of a detrimental change of his position, provided the election is a decisive one. (Post, pp. 466, 467.) Case cited and approved: Flynn-Harris-Bullard Co. v. Hampton (Fla.), 70 So., 385.
134 Tenn. 468Denny v. Sumner County (1915)
1. TAXATION. Personal property. Domicile. For tlie purposes' of taxation of personal property one must have a domicile fixed in some particular county and municipal corporation or civil district of the State. (Post, p. 473.) Cases cited and approved: Allen v. Thomason, 30 Tenn., 536; Kellar v. Baird, 52 Tenn., 39; Layne v, Pardee, 32 Tenn., 232; Pearce v. State, 33 Tenn., 66; White v. White, 40 Tenn., 405; Williams v. Saunders, 45 Tenn., 60; Keelin v. Graves, 129 Tenn., 103; Hascall v. Halford, 107 Tenn., 355; Foster v. Hall, 23 Tenn., 346; Stratton v. Brigham, 34 Tenn., 420; Sparks v. Sparks, 114 Tenn., 666; Laue V. Grand Fraternity, 132 Tenn., 23-5. 2. TAXATION. “Domicile” distinguished from “residence.” “Domicile” and “residence” are not synonymous in thé law relating to situs for taxation; “domicile” importing a legal relation existing between a person and a particular place, based on actual residence, plus a concurrent intention to remain there as at a fixed abiding place. One mav have but one domicile or legal residence, but be may have two or more residences, and he may not actually abide at his legal residence at all, but bis actual residence must be his abiding place. (Post, pp. 473, 474.) Case cited and approved: Tipton v. Tipton, 87 Ky., 245; Long v. Ryan, 30 Grat. (Ky.), 718. 3. DOMICILE. Operation of law. The law will, from facts and circumstances, fix a legal residence for one unless he voluntarily fixes it himself. (Post, pp. 473, 474.) 4. DOMICILE. “Change of domicile.” Requisites. To constitute a change from a domicile to another domicile of choice, it is requisite that there be actual residence in the other or new place, an intention to abandon the old domicile, and an intention of acquiring a new one at the other place. (Post, pp. 474-476.) Cases cited and approved: Williamson v. Osenton, 232 TJ. S., 619; Gilbert v. David, 235 U. S., 561; Berry v. Wilcox, 44 Neb., 32; Haves v. Hayes, 74 Ill., 312; Jopp v. Wood, 34 L. J. Ch. N. S., 212; Moor house v. Lord, 10 H. L. Cas., 272; Pickering V. Winch, 48 Or., 500. 5. DOMICILE. Change to domicile of origin. There is in this State an exception to the rule that a domicile once fixed remains until another is actually acquired, arising in the event of a change from a domicile of choice to that of origin, so that, if the removal be with intent to resume the domicile of origin, it is re-acquired before it is reached, or even while the person is in itinere, for it reverts the moment the other is given up; but such exception is limited to changes from one country to another or from one State of the Union to another. (Post, pp. 476-479.) Cases cited and approved: Catlin v. Gladding, 4 Mason, 308; Udny v. Udny, 4 L. R. H. L. Sc. App., 441; Borland v. Boston, 132 Mass., 89; Ayer v. Weeks, 65 N. H., 248. 6. DOMICILE. “Change.” Intent. The mere intention to acquire a new domicile without the fact of an actual removal and residence avails nothing; neither does the fact of an actual removal without such intent; and a mere change in the place of abode, though more than temporary, is not sufficient unless the intent concur. (Post, pp. 479, 480.) Case cited and approved: Berry v. Wilcox, 48 Am. St. Rep., 716. Cases cited and distinguished: Pickering v. Winch, 48 Or., 500; Still v. Woodville, 38 Miss., 646; State ex rel. v. Scott, 171 Ind., 349. 7. TAXATION. Personal property.- Domicile. Complainant, who had acquired a domicile of choice in T. county', who in 1913 sold his farm in that county and most of his personal property, who removed to S. county, intending to make a legal residence there conditional on his finding a farm there ■that was satisfactory and to remain only until his son’s preparatory school course was finished, and who, though he bought a farm in S. county as an investment, continued to vote in T. county and to pay taxes on personalty there, was, for the purposes of taxing his, personal property, domiciled in T. county. (Post, pp. 480, 481.) Cases cited and distinguished: Crawford v. Wilson, 4 Barb. (N. Y.), 505; Ross v. Ross, 103 Mass., 579; Worsham v. Ligón (Ga.), 87 S. E., 1025.
134 Tenn. 482State v. Davidson (1915)
1. ABDUCTION. Elements. Married woman. Shannon’s Code. sec. 6462, making it a felony to take any female from her father, mother, guardian, or other person haying the legal charge of her for the purpose of prostitution, does not cover the abduction of a married woman from her husband. (Post, pp. 483-487.) Acts cited and construed: Acts 1871, ch. E?6, sec. 3. Case cited and approved: State v. Wheeler, 127 Tenn., 58, Case cited and distinguished: Jenkins v. State, 88 Tenn., 675. Codes cited and construed: Secs. 4258, 6462 (S.); Sec. 4618 • (1857-58). 2. ABDUCTION. “Legal charge.” A husband is not a person having the “legal charge” of his wife within section 6462, Shannon’s Code (Post, pp. 487-489.) Case cited and approved: People v. Flores, 160 Cal., 766.
134 Tenn. 490Middle Tennessee R. v. McMillan (1915)
1. RAILROADS. Injury on crossing. Burden of proof. Plaintiff in a.n action at common law for injuries on a railroad crossing lias the "burden of showing, not only the infliction of the injury, hut the negligence of the railroad. (Post, pp. 496, 497.) Case cited and approved: Railroad v. Crews, 118 Tenn., 52. ' 2. RAILROADS. Injury on crossing. Contributory negligence. In such action the proximate contributory negligence of the party injured bars recovery. (Post, pp. 496, 497.) 3. ACTION. Pleading. Separate statement of causes of action. Joinder. The common-law and the statutory causes of action for personal injury on railroad crossings may both exist in the same case, but it is required that they shall each he presented in separate counts. (Post, pp. 497-503.) Case cited and approved: "Whittaker v. Railroad, 132 Tenn., 576. Code cited and construed: Sec. 1574, subsec. 2 (S.); Sec. 1166 (1858). 4. RAILROADS. Injury on crossing. Declaration. Statutory action. In an action for personal injury on a railroad crossing, a declaration distinctly showing a collision with an object or person on the track, or that the action is based distinctly on Shannon’s Code, sec. 1574, subsecs. 2 and 3, requiring locomotives to sound a whistle or bell at crossings, and, on approaching or leaving a city or town, to sound the whistle or bell, indicates an intent to base the action upon the-statute; as the provisions are not concurrent with the common law. (Post, pp. 197-503.) 5. PLEADING. Duplicity. Statutory and common-law causes of action. Tlie insertion in a single count of averments based upon the common law will not convert the whole declaration into a common-law pleading, but will lay it open to a demurrer for duplicity. (Post, pp. 497-503.) 6. RAILROADS. Injury on crossing. Contruction of declaration. Statutory action. A declaration in an action for damages for the negligent killing of plaintiff’s husband, alleging that defendant operated a railroad, that it negligently and wantonly ran upon the wagon in which plaintiff’s intestate was driving on a public highway across the track within the corporate limits of the town where he had the right to be, causing fatal injuries, that those in charge of defendant’s engine negligently failed to sound the bell or whistle, or to keep a lookout ahead, that they did not use every possible means to prevent a collision, that the appliances of the engine and cars were defective, as known to defendant, that such negligence was the proximate cause of his death, and that plaintiff, his widow, sued as administratrix for the benefit of herself and children, stated a cause of action under the statute (Shannon’s Code, sec. 1574, subsecs. 2, 3, and 4, and sections 1575 and 1576), requiring railroad locomotives to sound the whistle or bell on approaching or leaving a city or town, to keep a lookout ahead, and to use all possible means to prevent collision, and making a railroad negligent in such respect responsible for damages from any collision, etc. (Post, pp. 503, 504.) Cases cited and approved: Railroad Co. v. Smith, 77 Tenn., 470; - Chattanooga Rapid Transit" Co. v. Walton, 105 Tenn., 415; Railroad v. Davis, 104 Tenn., 442. 7.RAILROADS. Injury on track. Sufficiency of evidence. Evidence in such action held to sustain a verdict for the plaintiff. (Post, pp. 504, 505.) 8. RAILROADS. Injury on track. Neglgence. Defective machinery. In such action it was the duty of the defendant railway company to show that its machinery was in proper condition. (.Post, pp. 504, 505.) 9. DEATH. Right of action. The right of action under Shannon’s Code, sec. 1574, subsecs. 2, 3, and 4, and sections 1575 and 1576, for injury from accident or collision on a railroad track, is that of the deceased. (Post, pp. 505-507.) 10. EVIDENCE. Action for personal injury. Admissions of decedent. Such right of action being the right of the deceased, his admissions as to his negligence and inattention would be competent as against his' widow and administratrix or those succeeding to the right of action. (Post, pp. 505-507.) Cases cited and approved: Davidson-Benedict Co. v. Severson, 109 Tenn., 613; Stuber v. Riailroad, 113 Tenn., 305; Sharp y: C„ N. O. & T. P. Ry. Co., 179 S. W., 377; Overton v. Hardin, 46 Tenn., 375; Walker v. Brantner, 59 Kan. 117; Georgia R. Co. v. Fitzgerald, 1Ó8 Ga., 507; Dixon v. Union Iron Works, 90 Minn., 497: Smith v. Moore, 142 N. C., 289. 11. APPEAL AND ERROR. Exclusion of evidence. Objections in lower,court. The action of the trial court in erroneously excluding evidence will not be upheld because the court can see that it is incompetent on some other ground than that on which the objection was made; as ineompetency not objected to is waived. (Post, pp. 507, 508.) 12. EVIDENCE. Declarations. Condition of declarant. In an action by widow and administratrix for damages for the negligent killing of her deceased husband on defendant’s track, the admissions of the deceased as to his negligence and inattention, made when he was fatally injured and was suffering great pain, though partly conscious, were not inadmissible on the ground of his stupefied or partially conscious condition. (Post, pp. 508, 509.) 13. APPEAL AND ERROR. Harmless error. Exclusion of evidence. In such action error in the exclusion of such admissions of the deceased, not presented hy any other testimony in such a strong light as that contained in the testimony of the witnesses, in view of the fact that his contributory negligence, while not barring the action, mitigated the damages, and, in view of a verdict of $5,000, was very material, and was prejudicial error. (Post, pp. 509-511.) 14. RAILROADS. Action for death. Instructions. Negligence. In a widow’s action for damages for the negligent killing of her husband on defendant’s crossing, brought under Shannon’s Code, sec. 1574, subsecs. 2, and 3, requiring locomotives, on approaching crossings, to sound their whistles and ring their bells for a certain distance and until the crossing is passed, and on approaching a city or town to sound the bell or whistle when one mile distant and until reaching its station, and that on leaving it the bell or whistle shall be sounded when starting and until outside the corporate limits, and subsection 4, requiring a railroad to keen a lookout on the locomotive, and, on observing any person, etc., on track, to sound an alarm whistle, and put the brakes down, and use all possible means to prevent a collision, and section 1576, declaring that no railroad observing the statutory precautions shall be responsible for any damages to persons on its road, instructions based on a paragraph of'the declaration attempting to state a common-law, action, that it was the railroad’s duty to exercise a high degree of vigilance and caution, according to the dangers of the crossing, by employing every means at its command, by ringing the bell and sounding the whistle, were erroneous, as the statute covered the ground. (Post, pp. 511-513.) Cases cited and approved: Chattanooga Rapid Transit Co. v. Walton, 105 Tenn., 415; Railroad v. Gardner, 69 Tenn., 691; Graves v. Railroad, 126 Tenn., 148. Code cited and construed: Sec. 1574, subsecs. 2, S (S.); Sec. 1166 (1858). 15. DEATH. Contributory negligence. In such action the contributory negligence oí the deceased could go only to the reduction of damages, and it was the jury’s duty to mitigate or lessen the damages if they should find that deceased was guilty of contributory negligence, according to the degree thereof whether slight or gross. (Post, p. 513.) 16. RAILROADS. Action for death. Negligence. In an action for damages for the negligent killing of plaintiff’s husband on defendant’s track, it would not be exonerated from liability if it had obeyed all the statutory precautions after decedent’s wagon appeared on tile road in a position to be struck by the nearing train, if it had previously failed to sound the bell or whistle on approaching the crossing, as required by Shannon’s Code, sec. 1574, subsec. 2, as all the precautions must be complied with. (Post, p. 514.) Code cited and construed: Sec. 1574 (S.). 17. TRIAL. Requested instructions. Given instructions. The refusal of requested instructions was not error where the substance thereof was contained in other instructions given at the instance of the same party. (Post, p. 514.) 18. RAILROADS. Crossing track. Question for jury. Contributory negligence. The duty to stop, look, and listen is not a positive duty in law, applicable under all circumstances, and contributory negligence in failing to stop, look, and listen must generally be left to the jury under the circumstances. (Post, pp. 514, 515.) Cases cited and approved: Railroad v. Dies, 98 Tenn., 655; Wilson v. Citizens’ St. Ry. Co., 105 Tenn., 74; Railroad v. Satter-white, 112 Tenn., 1851 19. RAILROADS. Operation. injuries to persons. instructions. Degree of contributory negligence. In an action for damages for the negligent killing of plaintiff’s . husband on defendant’s track, in which his' contributory negligence would not defeat a recovery, "but would afford ground for mitigation or reducing the damages, an instruction that, if deceased was familiar with the crossing, hut entered upon it without stopping to look or listen, without paying any attention to the railroad and without any precaution to prevent accident, he would be guilty of “gross” negligence, to be considered in mitigation of damages, was properly refused, as the degree of negligence was for the jury, and not the court. (Post, pp. 514, 515.) 20. WITNESSES. Impeachment. Predicate. To contradict a witness by evidence of what he said out of court to other persons on the same subject, contradictory of what he afterwards testified in court, it is essential"that he shall be first asked whether he made such statements at a fixed time and place to persons named, and that the words used or their substance be stated to him to refresh his memory and to enable him to reply intelligently. (Post, pp. 515, 516.) Case cited and approved: Cole v. State, 65 Tenn., 239.
134 Tenn. 517Black v. Black (1915)
EXECUTORS AND ADMINISTRATORS. Inventory. Jurisdiotion of county court. Under Shannon’s Code, sec. 4039, providing that any person interested in a decedent’s estate may at any time before final settlement suggest to the court that the representative has not returned a complete inventory, and the articles omitted shall he debited to the representative at their value, unless he can show a sfufficient legal reason for leaving them out of the inventory, and section 6027, subd. 4, conferring original jurisdiction on the county court over the settlements of executors or administrators, while the county court has no jurisdiction of a petition to require an administrator to charge himself with a sum with which he had charged himself as' administrator of another estate, when considered as an independent and original action drawing into question the title to property, it has jurisdiction of such a petition as a suggestion that the administrator has not returned a complete inventory. Cases cited and approved: Linnville v. Darby, 60 Tenn., 307; Deai v. Snelling, 49 Tenn., 484;, Walsh v. Crook, 91 Tenn., 888; Taliaferro v. Wright, 1 Shan. Cas., 178. Codes cited and construed: Secs. 3977, 4031-4040, 4046, 4048, 4050, 6027, 6030 (S.).
134 Tenn. 526State v. Gibson County (1916)
1. COSTS. Maintenance of prisoners. Liability -of State. Statute. Under Shannon’s Code, secs. 7619-7622, providing that costs in felony cases shall he paid bv the State, the State is liable for the maintenance in a county jail of one convicted of felony, commutation of the sentence from imprisonment in the state penitentiary not altering the case. {Post, p. 530.) Acts cited and construed: Acts 1891, ch. 123. Cases cited and approved: Woolen v. State ex. rel., 129 Tenn., 455; State ex rel. v. Cummins, 99 Tenn., 667; State v. Davidson Co., 96 Tenn., 175. Code cited and construed: Secs. 7619-7622 (S.). 2. COSTS. Maintenance of- prisoners. Liability of State. Statute. Under Shannon’s Code, secs. 7619-7622, providing that costs in felony cases shall he paid by the State, the State is liable for the maintenance in a county jail of one convicted of felony whose sentence has been commuted from imprisonment in the penitentiary, although the county has declared the jail building a workhouse, using it both as a jail and a workhouse, the sheriff having charge of prisoners in the jail, and the superintendent of the workhouse of those in the workhouse. (Post, pp. 530, 531.) Acts cited and construed: Acts 1875, ch. 83. Case cited and approved: Durham v. State, 89 Tenn., 723. Code cited and construed: Sec. 7393' (S.). 3. COSTS. Maintenance of prisoners. Liability of State. Misdemeanants, or felons under commutation of sentence, confined in a county jail under the jailer’s care, if they are State prisoners, must be supported by the State, as between it and the county. (Post, p. 531.) 4. COSTS. Maintenance of prisoners. Liability of county. Statute. Shannon’s Code, secs. 7620-7622, including in criminal costs the maintenance of a prisoner in jail, makes payable by the county all costs of the prosecution of crimes punishable otherwise than by death or confinement in the penitentiary. Workhouse Act (Acts 1891, ch. 123), establishing county workhouses, authorizes a workhousb sentence in felony eases. Held,, that a county is liable for the maintenance in its workhouse under a superintendent of State prisoners held to hard'labor on commutation of sentence. (Post, pp. 532-536.) Case cited and approved: State v. Davidson, 96 Tenn., 178. Codes cited and construed: Secs. 7606, 7619, 7620- 7622 (S.); Sec. 5577 (1858).
134 Tenn. 537Hamilton Nat. Bank v. Amster (1915)
1. STATUTES. Subjects and titles of acts. Constitutional restrictions. Pub. Acts 190S, ch. 480, entitled “An act to provide for the organization, admission and regulation of fraternal beneficiary-associations, transacting the business of life insurance and to repeal all laws in conflict with the provisions of this act,” does not violate Const, art. 2, sec. 17, which provides that, “No bill shall become a law which embraces more than one subject, that subject to be expressed in the title,” since the subject of the act is single, providing for “fraternal beneficiary associations transacting the business of life insurance” and the words, “organization, admission or regulation” used in the .title, do not express .the object, but are provisions incidental to the single object and the means necessary to be incorporated into the body of the act irf order to effectuate the single object expressed in the title. {Post, pp. 542, 543.) Acts cited and construed: Acts 1905, ch. 480, sec. 12. Constitution cited and construed: Sec. 17, art. 2. 2. CONSTITUTIONAL LAW. Insurance. Discrimination. Discrimination against particular classes of corporations. Pub. Acts 1905, ch. 480. sec. 12, provides that benefits to be paid by any association organized under the act shall not be liable to attachment or other process, and shall not be applied by any legal or equitable.process or operation of law, for any liability of a certificate holder or beneficiary, and that such associations are declared to be charitable institutions, and all lodge property and funds are exempt from taxation. Const, art. 1, sec. 8, provides that no man shall be deprived of life, liberty, or property but by the .iudgment of his peers or the law of the land. Const, art. 11, sec. 8, provides that the legislature shall have no power to suspend general laws or by any law grant exemptions or privileges to any individual which are not.extended to any person able to bring himself within its provisions, and that corporations shall be created only by general laws. Held, that this section is not unconstitutional as arbitrary, unreasonable, or capricious in discriminating in favor of certificate holders under this act by conferring privileges not accorded to certificate holders of other beneficiary associations and ordinary life companies, since the associations provided for under the act are declared to be charitable institutions, as the law applies to all associations of this kind, and since contracts of insurance are sufficiently distinctive in character to bear a classification separating them from other contracts and as between themselves, it not being necessary for the reason for classification to be disclosed on the face of the act. (.Post, pp. 543-551.) Cases cited and approved: Farmers’ & Merchants’ Ins. Co. v. Dobney, 189 U. S., 301; State v. Webber, 214 Mo. 272; Lodge v. Johnson, 98 Tex., 1; Fidelity Mutual Life Association v. Mettler, 185 U. S., 308. Cases cited and distinguished: Insurance Co. v. Whitaker, 112 Tenn., 155; Brown v. Balfour, 46 Minn., 68; Fisher v. Donovan, 57 Neb. 3.61; Condon v. Maloney, 108 Tenn., 82-96. 3. . CONSTITUTIONAL LAW. Class legislation. Discrimination against particular classes of corporations. Snell provision is not unconstitutional as class legislation in discriminating in favor of associations falling under provisions of the act by permitting them to offer advantages to members which are denied to ordinary life companies, as it is1 a general act, and all of the rights, privileges, immunities, or exemptions allowed by it may be enjoyed by any ordinary life company which shall organize under the act and comply with its terms. (.Post, p. 551.) Constitution cited and construed: S'ec. 8, art. 11; Sec. 8, art. 1. 4. EXEMPTIONS. Public policy. Fraternal benefit associations. Creditors. It is within the power' of the legislature to exempt the property of a fraternal beneficiary association from the claims of creditors of its policy holders or beneficiaries on the ground of public policy. (Post, p. —.) • • Code cited and construed: Secs. 4030, 4231 (S.). 5. CONSTITUTIONAL LAW. Special privileges. Discrimination'against particular classes of corporations. Such provision is not unconstitutional as discriminating against other associations of the same class; as it grants the same privileges to all associations falling within the terms of the act. (Post, pp. 551, 552.) 6. CONSTITUTIONAL LAW. Insurance. Class legislation. Discrimination against particular classes of corporations. Pub. Acts 1905; cb. 480, sec. 32, provides in part that nothing contained therein shall be construed to affect local lodges of an association then doing business in the State, with death benefit not exceeding $300 or disability benefit not exceeding $300 in any one year or both. Const, art. 1, sec. 8, provides that no man shall be deprived of life, liberty, or property by the judgment of his peers or the law of the land. Const, art. 11, sec. 8, provides that the legislature shall have no power to suspend general laws or bv any law grant exemption of privileges to any individual which are not extended to any person able to bring himself within its provisions, and that corporations shall be created only by general laws. Held, that this section is not unconstitutional as arbitrary, unreasonable, or capricious, since, in view of the limited amount of business done by such associations, it was a proper exercise of the legislative power to classify so as to free them from the obligations of the act. (.Post, pp. 552-555.)
134 Tenn. 556Stearns Coal & Lumber Co. v. Patton (1915)
1. QUIETING TITLE. Bill. Possession. In Tennessee, possession is not necessary to maintain a bill to remove a cloud on title. (Post, p. 563.) Cases cited and approved: Sage v. Railway Co., 53 Fed., 297; Almony v. Hicks, 40 Tenn., 39. 2. CANCELLATION OF INSTRUMENTS. Power of equity. Equity has the power to cancel a void instrument, whether its character as such appears from the face of the instrument or otherwise. (Post, p. 564.) Cases cited and approved: Jones v. Perry, 18 Tenn., 59; Jones v. Nixon, 102 Tenn., 95; Porter v. Jones, 46 Tenn., 318. Case cited and distinguished: Almony v. Hicks, 40 Tenn., 41. 3. JUDGMENT. Expiration of term. Finality. On a bill to clear up title, a decree for a' party defendant, finding him to be the owner in fee of part of the land involved, after the term at which it was entered became final, and the court could not thereafter vacate or modify its decree without notice, and such proceedings as would give it jurisdiction anew. (Post, pp. 564-566.) Cases cited and approved: Central Trust Co. v. Grant Locomotive Works, 133 U. S. 207; Prater v. Hoover, 41 Tenn., 544; Allen v. Barksdale, 38 Tenn., 238. 4. LIMITATION OF ACTIONS. Removing cloud from title. Possession. Tlie statute of limitations has no application to an action to remove a cloud from title where the owner is in possession or is not'out of possession. (Post, pp. 566-570.) Cases cited and approved: Cooper v. Rhea, 82 Kan., 109; Miner v. Beekman, 50 N. Y., 337; Mutual Life Ins. Co. v. Corey, 54 Hun, 493; Shoener v. Lissauer, 107 N. Y. Ill; Meiser v. Kelly, 22 Or., 136; Katz v. Obenchain, 48 Or., 352; Bailey v. Hopkins, 152 N. C., 748; Quinn v. Kellogg, 4 Colo. Alpp., 157; Peck v. Sexton, 41 Iowa, 566; Combs v. Combs, 99 S. W., 919; Cameron v. Lewis, 59 Miss., 134; Kennedy v. Sanders, 90 Miss., 524; Am. Emigrant Co. v. Fuller, 83 Iowa, 599; Smith v. Matthews, 81 Cal., 120; Haarstick v. Gabriel, 200 Mo., 237; Miner v. Beek-man, 50 N. Y., 337; Schoener v. Lissauer, 107 N. Y., Ill; Moore v. Miller ’(C. C.), 43 Fed., 347; Smith v. Lee, 41 Tenn., 551; Snoddy v. Kreutch, 40 Tenn., 301; Lewis v. Brooks, 14 Tenn., 167; Kirtland v. Railroad Co., 72 Tenn., 414; Caldwell v. Palmer, 74 Tenn., 652; Alsobrook v. Orr, 130 Tenn., 120. Cases cited and distinguished: Batty v. Hastings, 63 Neb., 26; Anderson v. Akard, 83 Tenn., 182; Hughes v. Brown, 88 Tenn., 578. 5. LIMITATION OF ACTIONS. Removal of cloud on title. The seven year statute of limitations, applying where there is an " adverse holding of real estate, did- not apply in an action to remove a cloud on title affecting the marketability of the land or under which an adverse possession might be attempted, thus endangering the rights of the complainant. (Post, pp. 570-573.) Cases cited and approved: Palmer v. Mizner, 2 Neb., 899; Hodges v. Wheeler, 126 Ga., 848; Penrose v. Doherty, 70 Ark., >256; Sage v. Railroad Co., 58 Fed. 297; Case cited and distinguished: Costello v. Muheim, 9 Ariz., 422. 6. QUIETING TITLE. Defenses. .Laches. “Out of possession.” Laches is not available as a defense to an action to remove a cloud on title, except where the plaintiff is out of possession, and “out of possession” does not mean a mere failure of the owner to be in actual possession of wild or unoccupied lands. (Post, pp. 573, 574.) 7. PROPERTY. “Constructive possession.” The true owner, in legal contemplation, is in constructive possession of his unoccupied land if no one else is holding adversely, and he does not have to maintain actual possession to assert his rights. (Post, p. 574.) 8. ESTOPPEL. Disadvantage. In an action to remove a cloud from title to real estate, defendant, purchasing before the decree alleged to be a cloud was entered and not on the faith of the decree, could not set up estoppel, as he must have been put in a worse attitude or some advantage must have been gained by a delay before estoppel could'arise. (Post, pp. 574, 575.) 9. QUIETING TITLE. Pleading. Title. The statement by complainant in an action to set aside a cloud on its title to realty of its vendor’s actual, open, notorious, and adverse possession for twenty-two years under a registered deed, showing substantial inclosures and actual occupation of the land and a conveyance to it, sufficiently averred its title. (Post, p. 575.) 10.ABATEMENT AND REVIVAL. Pendency of another suit. A bill to set aside a decree in a former case as a cloud on complainant’s title to real estate would not be abated by the pen-dency of a suit filed by the defendant against complainant in an attempt to deraign title to the land claimed by defendant under the same decree, as complainant’s right to cancel the decree as a cloud was not involved in the other suit. (Post, pp. 575, 576.)
134 Tenn. 577Riggins v. Tyler (1915)
1. STATUTES. Title of act. Sufficiency. The title of Priv. Acts 1915, ch. 28, reciting that it was “An act to authorize counties in this State having a population of not less than 3‘3,500 nor more than 34,000 to issue bonds for highway purposes; to provide for the disposition of the fund thus raised'; and also for prompt payment of principal and interest when due” — is not invalid under Const, art. 2, sec. 17, declaring that no hill shall become a law which embraces more than one subject, which shall be expressed in its title. (Post, pp. 580-590.) Acts cited and construed; Acts 1915, ch. 28; Acts 1905, ch. 233; Acts 1895, ch. 81. Cases cited and approved: Manufacturing Co. v. Palls, 90 Tenn., 466; State ex rel. v. Schlitz Brewing Co., 104 Tenn., 715; Railroad v. Byrne, 119 Tenn., 278; Darnell v. State, 123 Tenn., 663; Kirk v. State, 126 Tenn., 7; Garby v. Harris, 7 Exch., 591; Met. Bo. Wits. v. Steed, L. ÍR., 82, B. Div., 445; George v. B. of E., 33 Ga., 344; State v. Hernán, 70 Mo., 441; Maysville & L. R. Co. v. Herrick, 13 Bush. (Ky.), 122; Rutherford v. Greene, 2 •'Wheat, 196; Babcock v. Goodrich, 47 Cal., 488; State ex rel. v. Turnpike Co., 34 Tenn., 88; Boro v. Hidell, 122 Tenn., 80; Todtenhausen v. Knox Co., 132 Tenn., 169; Burnett v. Maloney, 97 Tenn., 697; Lauderdale Co., v. Pargason, 75 Tenn., 153. Cases cited and distinguished: Wire & Co. v. Morgan, 101 Tenn., 273; Maxey v. Powers, 117 Tenn., 381; Ashby v. State, 124 Tenn., 684; Palmer v. Express Co., 129 Tenn., 116; Samuelson v. State, 116 Tenn., 470; Nichols & Shepherd Co. v. Loyd, 111 Tenn., 145. 2. STATUTES. Construction. Title of act. Indefiniteness. Acts 1915', ch. 28, entitled “An act to authorize counties having a population of not less than 33,500 nor more than 34,000 to 134 Tenn. 37 issue bonds for highway purposes; to provide for the disposition of the fund thus raised; and ... for prompt payment of principal and interest,” declares that the quarterly court of any county having the population mentioned may, when regularly in session, issue bonds for highway purposes. The act nowhere provides a standard to measure the population of counties. Held that, as the legislature will not be presumed to have done a vain thing, and as the language of statutes may be construed to give effect to the intent, the title must be deemed sufficient on the theory that the population of counties shall be ascertained from the last federal census; that being the established method. (Post, pp. 580-59Q.)
134 Tenn. 591Gill v. State (1915)
1. HOMICIDE. Instructions. Self-defense. Mutual combat. In a prosecution for homicide,, a charge that when both parties willfully engage in mutual combat, one of them slays the other in such combat, he cannot successfully invoke the law of self-defense, but would be guilty of at least voluntary manslaughter, is erroneous as excluding the right of one who entered' into a combat without intent to do great bodily harm, and whose adversary thereupon resorted to a deadly weapon, to defend himself against an attack with such weapon by resorting to a similar weapon. {Post, pp. 593, 594.) Cases cited and approved: Irvine v. State, 104 Tenn., 148; Tom and Robert Smith v. State, 105 Tenn., 317; Foutch Case, 95 Tenn., 711.- Case cited and distinguished: Daniel v. State, 78 Tenn., 262. 2. HOMICIDE. Appeal. Prejudcial error. Instructions. The giving of such charge was prejudicial where defendant, who was the only living witness to the homicide, testified that when deceased stated that he would get down from his wagon and settle the difficulty defendant was walking away and replied, “G'et off,” not knowing there was to be' a fight, but supposing so, and that he thereupon looked around and saw deceased picking up rocks to throw at him, and picked up one himself and threw it just as deceased was in the act of throwing, which rock struck and killed deceased, since under that evidence it was for the jury to determine whether there was a mutual intent to fight with rocks. (Post, pp. 594-597.) 3. INDICTMENT AND INFORMATION. Misconduct of prosecuting attorney. Employment by prosecuting witness. The acceptance by the assistant attorney-general, who appeared before the grand jury and prepared and submitted the indictment for homicide, of employment from the prosecuting witness on a contingent fee to recover damages from defendant for the killing of deceased, is contrary to public policy, and', if the objection is seasonably raised, will result in the dismissal of the indictment. (Post, pp. 597, 598.) 4. CRIMINAL LAW. Plea in abatement. Time of filing. An objection to an indictment for homicide because the prosecuting attorney had accepted employment by the prosecuting witness to recover damages for the homicide is waived, where the plea in abatement was not filed until after the first continuance had been granted and its1 averments do not give sufficient reason for the delay or show that it was filed at the earliest possible moment. (Post, pp. 597, 598.) Case cited and approved: Chairs v. State, 124 Tenn., 644.
134 Tenn. 599Eastland v. Sneed (1915)
TAXATION. Reassessment. Fraud of owner. Presumption. Statute. The presumption under Acts 1907, chapter 602, section 30, providing in part that property shall he reassessed for the period provided by law when the owner connives at or fraudulently procures or induces the assessment to be made at less than the actual cash value, “provided, however, in all cases where there is a grossly inadequate assessment, fraud shall be presumed,” is not conclusive, but rebuttable. Acts cited and construed: Acts 1907, ch. 602, sec. 30. Cases cited and approved: Diamond v. State, 123 Tenn., 348; Brinkley v. State, 125 Tenn., 371; Noe v. Mayor & Alderman, 128 Tenn., 350.
134 Tenn. 604Abston v. State (1915)
1. FORGERY. Venue. The venue of a prosecution for forging a deed is the county wherein the deed was actually forged. (Post, p. 607.) 2. FORGERY. Deeds. Fictitious persons. Under Shannon’s Code, section 6596, 'defining forgery as the fraudulent making or alteration of any writing to the prejudice of another’s rights, a deed may he the subject of forgery, and it is immaterial whether the deed purports to grant land to which the grantor named had no title, as if he were a fictitious person. (Post, pp. 607, 608.) Cases cited and approved: Rex v. Parlies, 2 Leach, C. L., 775; Boswell v. State, 59 Tex. Cr. R., 161; Maloney v. State, 91 Ark., 485; Rex v. Fitzgerald, 2 East, P. C., 953; Rex v. Birch, 2 East, P. C., 980; Rex v. Rhodes, 1 Leach, 24; Reg. v. Barber, 1 C. & K., 442; Rex v. Butler, Russ. & Ry., 342; Rex v. Sterling, 2 East, P. C., 950; Rex v. Coogan, 2 Bast, P. C., 1001; Rex v. Avery, C. & P., 956; People v. Van Alstine, 57 Mich., 69. Code cited and construed: Sec. 6596 (S.). 3. FORGERY. “Uttering” of forged instrument. Recording forged deed. Under Shannon’s Code, section 6597, providing that whoever fraudulently passes or transfers or offers to pass or transfer any forged paper knowing it to be forged, with intent to defraud another, is guilty of a felony, such section defining hut one crime, the recording of a forged deed is an “uttering.” (Post, pp. 608-610.) Cases cited and approved: People v. Dane, 79 Micb., 361; People v. Swetland, 77 Micb., 53; People v. Baker, 100 Cal., 188; United States v. Brooks, 3 MacArthur (D. C.), 315. Case cited and distinguished: State v. Haynes, 46 Tenn., 550. Code cited and construed: Sec. 6597 (S.). 4. FORGERY. Uttering of forged instrument. Recording forged deed. It is an uttering of a forged instrument to offer in evidence in a suit at law or to file with the papers in an injunction suit a forged deed. (Post, pp. 608-610.) 5. FORGERY. Uttering forged instrument. Prejudice of another. Liability for uttering a forged deed cannot be avoided on the ground that no one was prejudiced thereby, where, after recording the deed, the accused took possession of the land, cut the timber therefrom, and exercised a claim of ownership, that being sufficient to create a cloud on the title and cause the true owner expense in the litigation. (Post, pp. 610, 611.) Cases cited and approved: Clark v. Chase, 37 Tenn., 637; Thurs-ton v. Univ. of N. Carolina, 72 Tenn., 513.
134 Tenn. 612Board of Park Com'rs v. City of Nashville (1915)
1. MUNICIPAL CORPORATIONS. Fiscal management. Separate funds. Under Acts 1913, chapter 22, section 27, creating a sinking fund for the city of Nashville into which shall be paid ten per cent, of all taxes, revenues, and collections from all sources whatsoever, except from the tax for school purposes, and from any money from the sale of bonds, and section 39, creating the board of park commissioners and providing for a special tax of not less than ten cents on the $100, separate and distinct from the levy for ordinary municipal purposes, which shall not be diverted from the park commissioners, but shall remain a separate and distinct park fund, the city has no authority to divert from the fund created by the special tax for park purposes ten per cent, for the sinking fund. (Post, pp. 627-629.) Acts cited and construed: Acts 1899, ch. 204; Acts 1901, ch. 117; Acts 1913, ch. 22, sec. 27. 2. STATUTES. Construction. General and special provisions. Where there is a general provision applicable to a multitude of subjects, and a provision which is particular- and applicable to one of those subjects inconsistent with the general provision, the special provision will stand as an exception, and the general provision will be construed to operate on all subjects introduced therein, except the one covered by the special provision; the court not being confined to the literal meaning of words in arriving at the intention of the legislature. (Post, pp. 629-631.) Cases cited and approved: Hightower’s Lessee v. Wells, 14 Tenn., 249; Stockett v. Bird’s Adm’r., 18 Md., 484; Albertson v. State, 9 Neb., 429; Ryan v. State, 5 Neb., Omaha Real Estate & Trust Co. v. Reiter, 47 Neb., 592; Quick v. White Water Township, 7 Ind., 670; People v. McClave, 99 N. Y., 83; Brown v. Hamlett, 76 Tenn., 735i Cases cited and distinguished: Hayes v. Arrington, 108 Tenn., 494; Standard Oil Co. v. State, 117 Tenn., 638. _ 3. STATUTES. Construction. Expressio unius est exclusio al-terius. The maxim, “Expr.essio unius est exclusio alterius," is not flexible, and should always he applied to accomplish the legislative intention, and not to defeat it. (Post, pp. 631, 632.) Case cited and approved: E. M. Matthews Co. v. Atlantic Coast Line R. R. Co., 86 S. E., 1069. Case cited and distinguished: Colquhoun v. Brooks, L. R., 19 Q. B., Div., 400. 4. STATUTES. Construction. General rules. Construction as a whole. In construing a statute, the meaning is to be determined, not from special words in a single sentence or section, hut from the act taken as a whole, comparing one section with another, and viewing.the legislation in the light of its general purpose. (Post, pp. 632, 633.) Cases cited and approved: Darnell v. State, 123 Tenn., 666; Palmer v. Express Co., 129 Tenn., 157. 5. MUNICIPAL CORPORATIONS. Fiscal management. Separate funds. Acts 1913, chapter 22, section 27, authorizing deduction of ten per cent, of all revenues of the city of Nashville for its sinking fund, construed in connection with section 39, providing for a special tax for park purposes, does not authorize the diversion of a part of a fund derived from a railway under a compromise decree in litigation between the railway and the city, whereby the railway is required to pay a percentage of its gross earnings for the exclusive benefit of the park fund of the city. (Post, pp. 633-635.) Acts cited and construed: Acts 1913, ch. 22, see. 27. Cases cited and approved: Wilkins v. Railroad, 110 Tenn., 442; State ex rel. v. Cummings, 130 Tenn., 566; City of Jacksonville v. Jacksonville. Ry. Co., 67 Ill., 540; Village of Riverside' v. MacLain,. 210 Ill., 308; South Park Com. v. Montgomery Ward & Co'., 248 Ill., 304: Ward x. Field Museum, 241 Ill., 508; City of Hopkinsville v. Jarfett, 156 Ky., 777.. 6. MUNICIPAL CORPORATIONS. Fiscal management. Separate funds. . . A compromise decree in litigation between a railway and a city whereby the railway is reauired to pay a percentage of its gross earnings exclusively for park purposes, in consideration of exemption from a privilege tax on the property of the railway company, created a trust fund for park purposes which the legislature has no power to divert to another city fund. {Post, pp. 633-635.) 7. MUNICIPAL CORPORATIONS. Board of park commissioners. Power to sue. Under Acts 1913, chapter 22, section 39, creating the board of park commissioners of the city of Nashville with perpetual succession and the power to buy real estate for park purposes, to execute bonds and mortgages for land purchased, to condemn land, to receive gifts, donations, and devises, to make contracts, to ' employ superintendents and subordinates, to protect park property, and to draw and expend funds appropriated for the use of the parks, the board of park commissioners is a corporation or quasi corporation having the power to sue. {Post, pp. 635-639.) Cases'cited and approved: People v. Watertown, 1 Hill (N. Y.), 620; O’Leary v. Fire Ins. Com., 79 Mich., 281; Com. v. W. C. R. Co., 3 Grant Cas. (Pa.), 200; Jonesboro v. McKee, 10 Tenn., 167; Doty v. Tel. & Tel. Co., 123 Tenn., 3:29; Snow, Church & Co. v. Hall, 19 Mise. Rep., 655; Thomas v. Dakin, 22 Wend (N. Y.), 9; North Hempstead v. Hempstead, 1 Hopk. Chy. (N. Y.), 288; Jansen v. Ostrander, 1 Cow. (N. Y.), 670; Overseers of Pittstown v. Plattsburgh, 18 Johns. (N. Y.), 418; Jackson v. Hart-well, 8 Johns. (N. Y.), 425; Murray v. Jayne, 8 Barb., 612; Fourth School Dist. v. Wpod, 13 Mass., 193; Cornell v. Guilford, 1 Dénio (N. Y.), 515; Van Keuren v. Johnston, 3 Denio (N. Y.), 183; Suprs. of 'Galway v. Stinson, 4 Hill (N. Y.), 136; Cornell v. Woodard, 5 How. '(Miss.), 665; Todd v. Birdsall, 1 Cow. (N. Y.), 260; Armine v. Spencer, 4 Wend (N. Y.), 406; Dean v. Davis, 51 Cal., 406; Clarissy v. Fire Dept., 7 Abb. Prac. (N. S. N. Y.), 352; Trustees of Schools v. Tatman, 13 Ill., 27; Duntz v. Duntz, 44 Barb. (N. Y.), 459; State v. Hulin, 2 Or., 306; Horton v. Garrison, 23 .Barb. (N. Y.), 176; School Dist. No. 3 v. Maclooñ, 4 Wis., 79-; Grant v. Fancher, 5 Cow. (N. Y.), 309. Case cited and distinguished: Denton v. Jackson, 2 Johns. Ch. (N. Y.), 320. 8. CORPORATIONS. Incidental powers. Power to sue. The power to sue is one of the incidental rights of a corporation, whether mentioned in the charter or not. (Post, pp. 635-639.)
134 Tenn. 640Russell v. State (1915)
BAIL. Sureties. Liability. Shannon's Code, section 7065, authorizes the clerk of the court to issue a capias after indictment when defendant is not in actual custody or has not been bailed. Section 7149 et seg., provides that after defendant has given bail, the court may order him to be again arrested, when upon the finding of the indictment the court deems the bail taken insufficient, etc.; but the order for arrest and recommitment shall recite generally the facts upon which it is founded. Accused, who was arrested under a magistrate’s warrant on a charge of murder and bound over to the criminal court, gave a bail bond conditioned that he appear at the next term of court and not depart the court without leave. At the next term an indictment was returned, and at a succeeding term accused failed to appear.. After the indictment was found, the clerk of the court issued a capias under which accused' was arrested, but he escaped from the custody of the sheriff. Held, that as the second arrest under the capias issued by the clerk was invalid, the sureties on accused’s bail bond were not discharged and were liable for his nonappearance. ' Cases cited and approved: Poteete v. State, 68 Tenn., 262; McQueen v. Heck, 41 Tenn., 213; Smith v. Kitchens, 51 Ga., 158; Suggs v. State, 129 Tenn., 498; Chappell v. State, 30 Tex., 615; Ingram v. State, 27 Ala., 17; People v. Moore, 2 Doug. (Mich.), 1; Foster v.. State, 38 Tex. Cr. R., 372. Case cited and distinguished: Medlin v. Commonwealth, 11' Bush. (74 Ky.), 605. Codes cited and construed: Sees. 7065, 7149 (S.).
134 Tenn. 645Cole v. State (1915)
EMBEZZLEMENT. Defenses. Statute. Return by sureties. Shannon’s Code, section 6575', providing that, if the officer embezzling public funds shall account for all moneys received by him, he shall not be within the provisions of the preceding section, making embezzlement by public officers a felony, though it precludes a conviction where the proceeds were returned by the officer himself, does not prevent the conviction of an officer because the embezzled funds were repaid by the sureties • on his official bond. Acts cited and construed: Acts 1833-40, ch. 82. Case cited and approved: State v. Batter, 89 Ohio St., 269. Codes cited and construed: Secs. 6574, 6575(S.).
134 Tenn. 649McEwing v. State (1915)
RAPE. Statutory rape. “Attempt.” Indictment. Acts 1893, chapter 129, section 1, as amended hy Acts 1901, chapter 19, and Acts 1911, chapter 36, provides that unlawful carnal knowledge of a female under the age of consent is a felony. Shannon’s Code, section 6471, provides that any person assaulting another with intent to commit, or otherwise attempt to commit, any felony or crime punishable hy imprisonment in the penitentiary, when the punishment is not otherwise prescribed, shall, on conviction, he punished, etc. Ah indictment charged that defendant feloniously attempted to carnally know a female under the age of consent in that he feloniously assaulted her hy putting his hand on her private person and exposed to her his penis, and hy the offer of money and hy words, and excitation endeavored to induce her to permit carnal knowledge. Held, that' while mere solicitation is not enough, and there must he some act evidencing not only a purpose to commit the crime hut indicating the beginning of its execution, the indictment charged an “attempt,” which is an attempt to commit a crime, an act done in part execution of a criminal design with intent to commit, but which falls short of active consummation (citing .Words and Phrases, Second Series, Attempt). Acts cited and construed: Acts 1893, ch..129, sec. 1; Acts 1901, ch. 19; Acts 1911, ch. 36. Cases cited and approved: Cox v. People, 82 Ill., 191; State v. Goodrich, 84 Wis., 359; State v. Harney, 101 Mo., 470; Hicks v. Commonwealth, 86 Va„ 223; State v. Avery, 7 Conn., 266; Nider v. Commonwealth, 140 Ky., 684; State v. Doran, 99 Me., 329; People v. Du Veau, 105 App. Div., 381; State v. Thompson, 31 Nev., 209: Hogan v. State, 50 Fla., 86: State v. Rim-mer, 129 Tenn., 383; Rafferty v. State, 91 Tenn., 655. Cases cited and distinguished: State v. Butler, 8 "Wash., 194; Smith, v. Commonwealth, 54 Pa., 209; Glover v. Commonwealth, 86 Va., 382. Codes cited and construed: Sec. 6471 (S.).
134 Tenn. 660Beasley v. State (1915)
1: BAIL. Criminal prosecutions. Construction. “Final termination of the case.” A bond conditioned that the nrincipal appear at the trial court at a fixed day to answer the charge of murder, and not depart therefrom without leave, and appear from term to term until the final termination of the case, binds the sureties for defendant’s appearance only until the final sentence in the trial court; the final termination of the case being its final ter-' mination in that court, and not its termination on appeal or after remand. (Post, pp. '663, 664.) Cases cited and approved; Suggs v. State, 129 Tenn., 498; Phillips v. State, 100 Ark., 515'. 2. BAIL. Criminal prosecutions. Extension by court. While the trial court may defer final sentence on a principal who has been convicted of a felony, and thereby permit him to remain at liberty on his bond for appearance at the trial court ' while he is securing bail for appeal, it cannot pass final sentence on him, and then without consent of his sureties permit him to stand on his trial court bond for his appearance in the supreme court. (Post, pp. 664, 665.)
134 Tenn. 666Nashville, C. & St. L. Ry. v. Anderson (1915)
1. LIMITATION OF ACTIONS. Commencement of new action. Amendment of pleadings. New plaintiff. In an action against a railroad for death, of its employee, a change from the widow as party plaintiff to the administrator as such was no change of the cause of action within the statute of limitations. {Post, pp. 673-676.) Cases cited and approved: Missouri, K. & T. R. Co. v. Wulf, 226 U. S„ 570: Union P. R. Co. v. Wyler, 158 U. S„ 285. 2. LIMITATION OF ACTIONS. Commencement of new action. Amendment of pleadings. New cause of action. In a widow’s action against a railroad for death of its employee, ' where plaintiff’s original pleadings referred to the Georgia statutes, the amendment of such pleadings to omit all reference to such statute and to show that decedent was employed in interstate commerce when hilled, defendant’s plea having shown such fact originally, upon substitution of decedent’s administrator as plaintiff under the federal Employer’s Liability Act, was not a change, of cause of action within the statute of limitation, since the reference to the Georgia statute could be disregarded as surplusage. {Post, pp. 673-676.) 3. PLEADINGS. Declaration. Omission of matters of substance. Cure by plea. Matters of substance omitted from a declaration may be cured by plea. {Post, pp. 676-681.) Cases cited and approved: St. Louis, S. P. & T. R. Co. v. Seal, 229 U. S„ 156: Smith v. Atlantic, etc., R. Co., 210 Fed., 761. Cases cited and distinguished: Harmon v. Crook, 10 Tenn., 127; United States v. Morris, 10 Wheat., 246; C., N. O. & T. P. R. Co. v. Goode, (Ky.), 373 S. W„ 329. 4. TRIAL. Submission of issues. Abstractness. In an action for death of a railroad emplee, where the trial court, instead of stating the issues of fact to the jury, read a portion of the declaration of the plaintiff, and directed the jury to find in favor of the plaintiff if the greater weight of the evidence was on that side on any one or more of the five counts, such charge was error, certain averments of negligence not being supported by the proof, while no proof was offered as to some of the matters charged. (Post, pp. 681, 682.) 5. TRIAL. Reading pleadings to jury. It is not desirable for the trial judge to read the pleadings to the jury. (Post, pp. 681/682.) 6. DEATH. Federal employers’ liability act. Damages. In an action under the federal Employers’ Liability Act (Act April 22, 1908, chapter 149, 39 Stat. 65 [U. S. Comp. St. 1913, sections'8657-8665]), the widow and minor child of decedent being beneficiaries, ‘the measure of damages was such sum as the widow might reasonably have expected to receive from her husband for support, and such sum as such child would have expected for support during minority, plus compensation for loss of care, counsel, training, and education, which, under the evidence, it might have reasonably received from the parent. (Post, pp. 682, 683..) Acts cited and construed: Acts 1908, ch. 149. Case cited and distinguished: Michigan Central R. Co. v. Vree-land, 227 U. S., 59. 7. TRIAL. Federal employers’ liability act. Damages. Instruction. In an action under the federal Employers’ Liability Act of April 22, 1908, for death of a railroad employee, where there was no proof as to what portion of decedent’s earnings his widow and child might have reasonably expected .to receive, charge telling the jury that they might find as damages a sum equal to the entire amount of the probable earnings of decedent was erroneous. (Post, p. 683.) Case cited and approved: Kansas City S. R. Co. v. Leslie, 23:8 U. S„ 599. 8. TRIAL. Injuries to servant. Federal employers’ liability act. Damages. Instruction. In such, action, where there was no proof as to what portion of decedent's earnings his widow and child might reasonably have expected to receive, it was error to instruct that the jury might find damages to be the net value of his earnings after payment of his personal expenses. {Post, p. 683.) 9. DEATH. Federal employers’ liability act. Damages. Allowance. In such action there must be evidence of pecuniary damage to his beneficiaries before such damage can be allowed. (Post, pp. 683, 684.) Cases cited and approved: Am. R. Co. v. Didricksen, 227 Ü. S., 145; Gulf, C. & S. F. R. Co. v. McGinnis, 228 U. S., 173; North Carolina R. Co. v. Zachary, 232 U. S., 248; St. Louis, I. M. & S. R. Co. v. Craft, 237 U. S„ 648; Norfolk & W. R. Co. v. Holbrook, 235 U. S., 625; Kansas City S. R. Co. v. Leslie, 238 ü. S., 599. 10. TRIAL. Instructions. Abstractness. Where there was no proof as to the value of decedent’s customary contributions tq the support of his widow and minor child, and nothing to indicate what they might reasonably have expected from him for support, there being no evidence as to proof of his personal qualities and the interest he took in his family, the submission to the: jury of .such matters as a basis of damages was improper. (Post, pp. 684, 685.) 11. DEATH. Federal employers’ liability act. Damages. Expectancy of beneficiary. In such action damages to the widow should be calculated on the basis of her expectancy of life as well as her husband’s (Post, pp. 685, 686.) 12. DEATH. Federal employers’ liability act. Pleading. Dam- Where there was prooí of the earning capacity of decedent and his expectancy of life, but nothing to show what his beneficiaries, his widow and minor child, might reasonably have expected to receive from him for their support, a recovery for nominal damages could alone stand. (Post, pp. 686, 687.) 13. DEATH. Federal employers’ liability act. Pleading. Damages. In such action there should be pleadings averring the pecuniary losses which plaintiffs expect to prove. (Post, p. 687.)
134 Tenn. 688White v. Mayor of Nashville (1915)
1. CONSTITUTIONAL LAW. Municipal corporations. Class legislation. Classification. Unreasonable classification. Acts 1913, chapter 55, entitled “An act to prescribe the method of bringing suits and to limit the time of bringing suits against municipal corporations on account of injuries to pefsons or property resulting from the negligence of the officers or employees of such corporations,” and declaring that no suit shall be brought against any municipal corporation on account of personal or property injuries resulting from defective conditions of any street, alley, sidewalk, or highway unless within ninety days after such injury has been inflicted, a written notice shall be served upon the mayor of the municipality, stating the time and place where such injury was received and the general nature of the injury, and that failure to give notice shall be a valid defense against any and all liability. Held, that as the act is general in its application and the classification is not unreasonable or capricious, the act is not invalid under Constitution, article 11, section 8, or Constitution U. S. Amend. 14, section 1, as class legislation. {Post, %>p. 691-693.) Acts cited and construed: Acts 1913, ch. 55. Cases cited and approved: Scott v. Marley, 124 Tenn., 388; Davis v. State, 71 Tenn., 379; Condon r'. Maloney, 108 Tenn., 82; State v. Schlitz Brewing Co., 104 Tenn., 715; Demoville v. Davidson Co., 87 Tenn., 215; Cook v. State, 90 Tenn., 407; Railroad v. Crider, 91 Tenn., 490; Turnpike Cases, 92 Tenn., 369; Dugger v. Ins. Co., 95 Tenn., 245; Henley v. State, 98 Tenn., 667; Dabardelaben v. State, 99 Tenn., 649; Railroad v. Harris, 99 \ Tenn., 684; Harbison v. Knoxville Iron Co., 103 Tenn., 421; Dayton Co. v. Barton, 103 Tenn., 604; Leeper v. State, 10!3 Tenn., 500; Neas v. Borches, 109 Tenn., 398. Constitution cited and construed: Art. 11, sec. 8. 2. MUNICIPAL CORPORATIONS. Personal Injuries. Notice. Waiver. Under such statute, the fact that plaintiff pointed out to the legal officers of the municipality the place of her injuries and gave them verbal notice thereof does not excuse a failure to give the written notice, the purpose of the act being to provide written notice to the mayor and municipality, and it not appearing that the law officers of the municipality were authorized to waive such notice. (Post, pp. 693-696.) Cases cited and approved: Starling v. Bedford, 94 Iowa, 194; Trost v. Casselton, 8 N. D., 534; Mitchell v. Worcester, 129 Mass., 525; Schmidt v. Fremont, 70 Neb., 577; Forseytlv v. Oswego, 107 App. Div. 187; Ft. Worth v. Shero, 16 Tex. Civ. App., 487; j_iuke v. El Paso [Tex. Civ. App.], 60 S. W. 363.; Hay v. Baraboo, 127 Wis., 1; Denver v. Saulcey, 5 Colo. App., 420; Dorsey v. Racine, 60 Wis., 292; .Whalen v. Bates, 19 R. I., 274; Curry v. Buffalo, 135 N. Y. 366; Seamons v. Fitts, 21.R. I., 236; Bancroft v. San Diego, 120 Cal., 432; Bausher v. St. Paul, 72 Minn., 539; Dalton v. Salem, 139 Mass., 91; Harris v. Fond du Lac, 104 Wis., 44; McKenna v. Bates, 19 R. I., 610; Doyle v. Duluth, 74 Minn., 157. Case cited and distinguished: Cole v. Seattle, 64 Wash., 1.
134 Tenn. 697Wilson v. Wilson (1916)
1. STATUTES. Privileges or immunities. Special^ laws. Acts 1915, chapter 121, providing foi1 the appointment of divorce proctors in. counties having a population of over 100,000, etc., is not violative of Constitution article 11, section 8, providing that no law shall he passed granting special rights, privileges, or immunities, and that only general laws shall he passed, since the legislature may pass special laws affecting particular counties as governmental or political agencies, while legislation on the subject of divorce chiefly involves governmental and political questions. (Post, pp. 701, 702.) Ácts cited and construed: Acts 1915, ch. 121. Cases cited and approved: Redistricting Cases, 111 Tenn., 234; Prescott v. Duncan, 126 Tenn., 106; State v. Turnpike Co., 181 S. W„ 683. Constitution cited and construed: Art. 11, sec. 8. 2. DIVORCE. Statutes. Legislature divorce. Statute appointing proctors. Constitutionality. Said act is not violative of Constitution article 11, section 4, providing that the legislature shall have no power to grant divorces, hut may authorize the courts of justice to grant them for such cases as may be specified by general laws uniform in their operation throughout the State, since the statute does not specify causes for divorce. (Post, pp. 702, 703.) Acts cited and construed: Acts 1915, ch. 121. Cases cited and approved: Turner v. State, 111 Tenn., 593; Con-don v. Maloney, 108 Tenn., 82; Cook v. State, 80 Tenn., 408; Hall v. State, 124 Tenn., 235; Darnell v. State, 123 Tenn., 663. Constitution cited and construed: Art. 11, sec. 4. 3. STATUTES. Title. Subject-matter. Acts 1915, chapter 121, entitled “An act to create the office of divorce proctor; to define his qualifications, duties and powers; to provide the manner of his election, term of office and compensation,” etc., is not violative of Constitution article 2, section 17, providing that statutes shall contain but one subject, expressed in the title, in that the body of the act is broader than its title. • (Post, p. 703.) Constitution cited and construed: Art. 2, sec. 17. 4. CONSTITUTIONAL LAW. Divorce. Courts to be open. Statute. Acts 1915, chapter 121, section 3, providing that it shall be the duty of a divorce proctor to acknowledge service upon him of a copy of every bill for divorce, which acknowledgment shall be indorsed by him upon the original bill before the same is filed in any court in this county, and no bill shall be filed unless bearing such acknowledgment over the proctor’s signature, with the date of service, is not violative of Constitution article 1, section 17, providing that courts shall be open and justice administered without sale, denial, or delay, since the proctor has no' discretion whatever in the manner of acknowledging service of bills for divorce, and must indorse each bill presented to him — duty compellable by mandamus. (Post, pp. 703, 704.) 5. DIVORCE. Fee of divorce proctor. Statute. Constitutionality. Acts 1915, chapter 121, providing for the appointment of divorce proctors in counties of over .100,000 population, and that the fee of the proctors shall be fixed as part of the costs, is not unconstitutional on the ground that he is a State officer whose fee must be paid by the State out of its treasury; there being no such constitutional requirement. (Post, pp. 704, 705.) 6. DIVORCE. Fee of divorce proctor. Statute. Constitutionality- Such provision is not unconstitutional as permitting the county in which a case is tried to levy a tax for State purposes, since the fee is not a tax, and is not levied by the county. (Post, p. 705.) 7. CONSTITUTIONAL LAW. Costs. Due process. Proctor’s fees. The provision of such act that the fee of the proctor be taxed to the successful party as part of the costs is not unconstitutional as taking the successful party’s property without due process of law, since it is proper for the legislature to tax the successful party to litigation with the expense of the employment of the court’s machinery, resulting in his benefit, while the legislature may provide for the taxation of costs of -litigation as it may deem proper; the mattier of costs of litigation being essentially statutory. (Post, pp. 705, 706.) Case cited and approved: Mooneys v. State, 10 Tenn., 578. Codes cited and construed: Secs. 4230, 4945, 6310 (S.). 8. TAXATION. Uniformity. Statute. “Tax.” Such provision is not violative of the constitutional provision as to uniformity of taxation: the fee not being a “tax.” (Post, p. 706.) 9. DIVORCE. Appointment of deputy proctor. Statute. Constitutionality. Said act is not unconstitutional because providing that the proctor himself appoint his deputy. (Post, p. 706.) Case cited and approved: Prescott v. Duncan, 126 Tenn., 106.
134 Tenn. 707Stovall v. Perry (1916)
FROM MADISON Appeal from tiie Circuit Court of Madison County. —I. J. Eíverett, Judge.
134 Tenn. 716Bailey v. Apperson (1916)
FROM SHELBY Appeal from the Chancery Court of Shelby County to the Conrt of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. — Vm. H. Fitzhugh, Special Chancellor.