140 Tenn.

Volume 140 — Tennessee Reports

62 opinions

140 Tenn. 1Watkins v. State (1917)
1. CRIMINAL LAW. Misconduct of prosecuting attorney. Improper argument. Where a prosecuting attorney in argument imputed wrongdoing or perfidy to any trial jurors should they not take his view, and asserted facts not proved, such as that an absent person was in town and could have been found by defendant, imputed dishonesty to adversary counsel, and shook his finger under the nose of accused, and addressed him in abusive terms, a conviction cannot stand. (Post, ppr 4-8.) 2. CRIMINAL LAW. Improper argument. Duty of court. Where prosecuting attorney starts to use grossly-improper argument, the trial judge should stop him at once without waiting for exceptions. (.Post, pp. 8-10.) Case cited and distinguished: People v. Fielding, 158 N. Y., 542.
140 Tenn. 11Elledge v. Sumpter (1917)
1. FRAUDULENT CONVEYANCES. Accounting by innocent transferee. Upon accounting to a creditor by a wife as innocent transferee of shares of stock fraudulently transferred by her deceased husband, for the value of the shares, where it appeared that notes of the husband were during his life-time secured by assignment and pledge by the husband and wife of a policy on the husband’s life in which the wife was beneficiary, and no right was reserved to the husband to change the beneficiary, and the notes were satisfied from the proceeds of the policy after the husband’s death, the wife was entitled to credit for such payment, it being in contemplation of law made by her, since she was the efficient and real assignor aild pledgor of the policy. (Post, pp. 14, 15.) Acts cited and construed: Acts 1901, ch. 133. Cases cited and approved: Daly v. Sumpter Drug Co., 127 Tenn., 412; Elledge v. Anderson, 133 Tenn., 478; Scobey v. Waters, 78 Tenn., 551; Gosling v. Caldwell, 69 Tenn., 454; Marquet v. Insurance Co., 128 Tenn., 213; Holden v. Stratton, 198 U. S., 202. 2. BANKRUPTCY. Exemptions. Insurance policies. Under Bankruptcy Act July 1, 1898, chapter 541, section 70a, 30 Stat. 565 (U. S. Comp. St. 1916, section 9654), insurance policies, exempt by the laws of the State, do not pass to the trustee in bankruptcy. (Post, pp. 14, 15.) 3. FRAUDULENT CONVEYANCES. Pledged property. Payment by innocent transferee. Rights. When personal property pledged to secure payment of a valid debt is fraudulently transferred, creditors are not, upon setting’ aside the transfer, entitled to recover from an innocent transferee the full value of the pledged property, but only its value after deducting the amount of the debt secured. (Post, pp. 15, 16.) Cases cited and approved: Hamilton Nat. Bank v. Halsted, 134 N. Y., 520; Loos v. Wilkinson, 113 N. Y„ 485. 4. SUBROGATION. Payment of creditors after notice. Rights of innocent transferee. Where innocent transferee in fraudulent conveyance pays unsecured creditors after notice that the transfer was a fraud on creditors, he is entitled to he subrogated to the rights of such creditors on a pro rata basis, whether formally assigned to him or not. (Post, pp. 16-18.) Cases cited and approved: Cottingham v. Greeley Branham Groe. Co., 129 Ala., 200; Feelieimer-Keifer Co. v. Burton, 128 Tenn., 682; Robinson v. Stewart, 10 N. Y., 189; Kelir v. Smith, 20 Wall. (U. S.), 36; Chatterton v. Mason, 86 Md., 236. Case cited and distinguished: Adams .v. Young, 200 Mass., 588. 5. SUBROGATION. When granted. Application. Equal equities. Subrogation will be granted or a charge enforced in a court of equity only where an equitable result would be reached, but not to work injustice to another in the defeat of an equal equity. (Post, p. 18.)
140 Tenn. 19Putnam County v. White County (1917)
1. COUNTIES. Statute. Setting boundary dispute. Validity. Private Acts 1915, chapter 477, placing within White County a strip of land of about three hundred and forty acres claimed by Putnam county, is valid, since the latter county never acquired such land by any act of the legislature or by possession or dominion thereover, and such strip was in undisputed possession of White county when Constitution, article 10, section 4, forbidding reduction of area of a county of dess than five hundred square miles, became operative. (Post, p. 24.) Acts cited and construed: Acts 1853-54 ch. 320; Acts 1915, ch. .477. 2. COUNTIES. Acts creating. Validity. If act of 1854 (Laws 1853-54, chapter 320), establishing Putnam county, included within boundary of such county land nearer than twelve miles to the courthouse of an old county, it was invalid in view of Constitution 1834, article 10, section 4, providing that the line of a new county shall not approach the courthouse of any old county from which it was taken nearer than twelve miles. (Post, pp. 24, 25.) Cases cited and approved: Ford v. Farmer, 28 Tenn., 152; Gotcher v. Burrows, 28 Tenn., 585; Maury County v. Lewis County, 31 Tenn., 236; Marion County v. Grundy County, 37 Tenn., 490; Bridgenor v. Rodgers, 41 Tenn., 259. Constitution cited and construed: Article 10, sec. 4 (1834). 3. COUNTIES. Boundary dispute. Power of legislature. Where White county continued to exercise sovereignty over strip in dispute for more than forty-eight years and thereafter Putnam county asserted dominion for about thirteen years, it was competent for the legislature to confer the strip upon White county, although it had been guilty of laches in submitting to encroachment; the strip being anciently within the domain-of White County. (Post. pp. 25, 26.) 4. COUNTIES. Boundary disputes. Laches. Although submission of White county to encroachment of Putnam county for thirteen years might have barred the right, of the former to recover the strip in dispute, it could, as a defense in a suit by the latter county, set up Private Acts 1915, chapter 477, Placing disputed territory within the former. (Post, pp. 26, 27.) Cases cited and distinguished; Roane County v. Anderson County, 89 Tenn., 259. 5. COUNTIES. Boundary disputes. Laches. Laches and acquiescence must exist for a period of twenty years to estop a complaining county from recovering its territory over which another county has unlawfully asserted dominion. (Post, pp. 27, 28.) Acts cited and construed: Acts 1915, ch. 477. Cases cited and approved: Putnam County v. Smith County, 129 Tenn., 394; McMillan v. Hannah, 106 Tenn., 689. Constitution cited aild construed: Art. 10, sec. 4 (1870). 6. CONSTITUTIONAL LAW. Counties. Retroactive statutes. Fixing boundaries. . Priv. Acts 1915, ehápter 477, placing certain territory claimed by Putnam county within White county, is not in violation of Constitution, article 1, section 20, forbidding retroactive laws or laws impairing the obligation of contracts, since the territory originally belonged to White county and was never assigned to Putnam county by any valid act of the legislature or otherwise acquired. (Post, pp. 28, 29.) Acts cited and construed: Acts 1915, ch. 477. Constitution cited and construed: Art. 1, sec. 20. 7. CONSTITUTIONAL LAW. Parties entitled to raise constitutional questions. Putnam county cannot attack Private Acts 1915, chapter 477, because it undertakes to transfer a three hundred and sixty acre tract from White county to Putnam county, since one not adversely affected by a statute cannot question its validity. (.Post, p. 29.) Acts cited and construed: Acts 1915, ch. 477. Cases cited and approved: Noell v. Eastern Power Co., 130 Tenn., 245; Palmer v. Express Co., 129 Tenn., 116; Kelly v. State, 123 Tenn., 516; Richardson v. Young, 122 Tenn., 524. 8. COUNTIES. Suit between counties. Boundary dispute. A suit by one county to recover disputed territory from an adjoining county may be brought in the courts of the former;' it being an apparent exception to the rule that a municipal corporation such as the former county may only be sued in the county in which it is located. (Post, pp. 29-31.) Cases cited and approved: Peircy v. Johnson City, 130 Tenn., 231; Nashville v. Webb, 114 Tenn., 432; Maury County v. Lewis County, 31 Tenn., 236; Marion County v. Grundy County, 37 Tenn., 490; Bridgenor v. Rodgers, 41 Tenn., 259; -Roane County v. Anderson County, 89 Tenn., 259; McMillan v. Hannah, 106 Tenn., 689; Putnam County v. Smith County, 129 Tenn., 394; Union County v. Knox County, 90 Tenn., 541. 9. COUNTIES. Reducing area. Validity of statute. Putnam county, having an area of less than five hundred square miles, could not be further reduced by Private Acts 1915, chapter 656, in view of Constitution, art. 10, section 4. (Post, pp. 31-33.) Acts cited and construed: Acts 1915, ch. 656. Constitution cited and construed: Art. 10, sec. 4.
140 Tenn. 34Nashville, C. & St. L. Ry. v. Akin (1917)
1. CARRIERS. Injuries to passengers. Sudden jerks. A railway is not liable under the res ipsa loquitur doctrine for an injury to a passenger caused by the jerk or lurch of a train in coming to a stop, in the absence of proof that such jerk was not necessarily incident to the stop (Post, p. 37.) 2. CARRIERS. Injuries to passengers. Starting train while passenger is alighting. Where a train has stopped for a passenger to alight, and while she was walking down aisle of car the train without warning suddenly started, the railway is liable for injury caused by the jerk, without proof by plaintiff that start was unnecessarily violent. (Post, pp. 37, 38.) Case cited and approved: Railroad v. Mitchell, 98 Tenn., 30. 3. CARRIERS. Injury to passenger. Sufficiency of evidence. Where in an action for death of a passenger about to alight plaintiff does not show whether the injury was due to jerk of train in stopping for which railroad would not be liable, or to sudden start without warning, for which it would be liable, plaintiff, cannot recover. (Post. pp. 38, 39.) Case cited and approved: Railroad v. Lindamood, 111 Tenn., 457. 4. CARRIERS. Action for injury to passenger. Sufficiency of evidence. In an action against railway for death to passenger while alighting from train, evidence held sufficient to show that the injury was due to sudden starting of train without warning and not to the jerk of train in stopping for the passenger to alight. (Post, pp. 39, 40.)
140 Tenn. 41Matheny v. Preston Hotel Co. (1918)
1. ACTION. Splitting canses. Actions for rent. Where a tenancy from year to year results from mere holding holding over, there is no continuous contract or transaction such as will require an action for rent due in one year to include rent due in a previous year, and separate actions may be maintained. (Post, p. 45.) Cases cited and approved: Shepherd & Mitchell v. Cummings, 47 Tenn., 623; Hammond v. Dean, 67 Tenn., 193; Wilson v. Alexander, 115 Tenn., 125; Dulaney v. Payne, 101 Ill., 325; Kennedy v. New York, 196 N. Y., 19; Williams v. Kitchen, 40 Mo. App., 604; Nathans v. Hope, 77 N. Y., 420; Presstman v. Beach, 61 Md., 203; Patón v. Doyne, 74 N. J. Law, 319; Ferguson v. Cul-ton, 8 Tex., 283; Marshall v. John Grosse Clothing Co., 83 Ill. App., 338; Coleman v. Hudson, 34 Tenn., 463; Parris v. High-tower, 76 Ga., 631; Mills v. Garrison, 42 N. Y. (3 Keyes), 40; Dews v. Eastham, 13 Tenn., 297; Tarbox v. Hartenstein, 63 Tenn., 78. 2. ACTION. Spitting Causes. Actions for rent. Where, on execution of lease, separate notes were drawn for each month’s rent, each note is a separate cause of action, and each may he sued on separately, although the others are then due. (Post, p. 45.) 3. ACTION. Splitting actions. Waiver. The rule against splitting actions growing out of the same transaction is for the benefit of the debtor, and he may waive his right. (Post, pp. 45-48.) 4. JUDGMENT. Bar. Separate breaches of single contract. Although, under Thompson’s Shannon’s Code, section 4620, actions may be brought for each separate breach of an entire contract as it occurs, yet, where several breaches have occurred at the time suit is brought, they must all be sued together, otherwise those omitted cannot be subsequently sued on. (Post, pp. 48, 49.) Cases cited and approved: Cook v. Hadly, 3 Tenn., 465; Perkins v. Hadley, 5 Tenn., 148; Carra way v. Burton, 23 Tenn., 108; Thomason v. Rice, 1 Shan. Tenn. Cas., 69; ' Saddler v. Apple, 28 Tenn., 342; Railroad Co. v. Matthews, 115 Tenn.', 172; Whitaker v. Hawley, 30 Kan., 317; Bartels v. Schell, 16 Fed., 341; Joyce v. Moore, 10 Mo., 272; Barnes Bros. v. Coal Co„ 101 Tenn., 354. Code cited and construed: Sec. 4620 (T.-S.).
140 Tenn. 50Searight v. White Sewing Mach. Co. (1918)
1. JUDICIAL SALES. Default of purchaser. Right of debtor. Where at the instance of his creditors a debtor’s land is sold through chancery on time without redemption and the sale is confirmed, the debtor is deprived of title and all beneficial interest and is entitled to be credited with the proceeds of such sale, although the purchaser defaults in note given therefor and land is again sold for a smaller sum, in view of Thompson’s Shannon’s Code, sections 5915-5917, 6301-6303, as to power of courts having jurisdiction to sell land to vest and divest title, etc. (Post, p. 53.) Cases cited and approved: Camp v. Riddle, 128 Tenn., 294; Griffith v. Philips, 77 Tenn., 420; Wilkins v. McCorkle, 112 Tenn., 688; Iron & Coal Co. v. Schwoon, 124 Tenn., 176; Blei-dorn v. Pilot Mountain C. & M. Co., 89 Tenn., 166. Codes cited and construed: Secs. 5915-5917, 6301-6303 (T.-S.). 2. JUDICIAL SALES. Sale on time. Liability of commissioner. Where a master sells land of a debtor at instance of creditors on time, it is his duty to accept only good and solvent sureties on the notes, and for any failure in this regard he is personally liable to the creditors. (Post, p. 53.) 3. JUDICIAL SALES. Sale on time. Loss from insolvency. Where master, pursuant to decree of chancery and at the instance of creditors, sells' land of a debtor on time and accepts solvent sureties on notes given therefor, loss occurring from subsequent insolvency of sureties is that of the creditors, and not of master or debtor. (Post, pp. 53-58.) 4. EQUITY. Bill of review. Matters reviewable. Erroneous decision. Error of court in disallowing debtor a credit for proceeds of first sale of land on time at instance of creditors, and crediting him only with the proceeds of a subsequent sale for a less sum after default of purchaser, can be relieved against by a bill of review. (Post, p. 58.)
140 Tenn. 59Wurzburg v. New York Life Ins. (1918)
1. INSURANCE. Insurable interest. Interest of corporation in- life of its manager. A manufacturing company has an insurable interest in the life of its manager, who is its guiding spirit and is largely carrying on its business. (Post, pp. 61-63.) Cases cited and approved: Warnock, Adm’r, v. Davis, 104 U. S„ 775; Keckley v. Coshocton Glass Co., 86 Ohio St., 213; Mutual L. Ins. Co. v. Board Armstrong & Co., 115 Va., 836. Case cited and distinguished: Lane v. Lane, 99 Tenn., 639. 2. INSURANCE. Insurable interest. Extinguishment of interest. Where a manufacturing company took out a valid policy on the life of its general manager, who later severed his connection with the company, and it paid all premiums until his death, it was entitled to the whole of the insurance. (Post, pp. 63-66.) Cases cited and approved: Marquet v. Ins. Co., 128 Tenn., 213; Snyder v. Mystic Circle, 122 Tenn., 248; Conn. Mutual L. Ins. Co.-v. Schaefer, 94 U. S., 457; Overhiser v. Mutual L. Ins. Co., 63 Ohio St., 77. Cases cited and disapproved: Rison v. Wilkerson, 35 Tenn., 566; Scobey v. Water, 78 Tenn., 551; Quinn v. Catholic Knights, 99 Tenn., 80; Bendet v. Ellis, 120 Tenn., 277.
140 Tenn. 67Tuec Co. v. McKnight (1918)
MECHANICS’ LIENS. Fixtures. Vacuum cleaner. A vacuum cleaner operated by electricity, requiring special wiring, and consisting of certain parts permanently attached to theater and other parts which are loose hut can he attached to and detached from the parts attached to the building, as the use of the plant requires, is, under modern conditions, material used in construction and subject to lien. Case cited and approved: Halley v. Alloway, 78 Tenn., 523.
140 Tenn. 70Vinson v. State (1918)
1. CRIMINAL LAW. Evidence of other offenses. Rape. Under an indictment for violation of the age of consent law, charging an unlawful act committed in the month of September, it was proper to show acts committed in June and December also. (.Post, p. 71.) Case cited and approved: Sykes v. State, 112 Tenn., 572. 2. CRIMINAL LAW. Election. Where indictmennt charged a particular act of rape, and other acts were shown, the State could be required to elect on which offense it sought a conviction.- (Post, p. 71.) 3. CRIMINAL LAW. Election by State. Time. Where indictment charges statutory rape, and several offenses are shown by the evidence, the defendant can require the State to elect any time between the close of the State’s eyidence in chief and the final submission of the case to the jury, and likewise the State can make a voluntary election as soon as its proof is in. (Post, p. 71.) Cases cited and approved: Jamison v. State, 117 Tenn., 58; Holt v. State, 107. Tenn., 539. 4. CRIMINAL LAW. Reversal. Election by State. . Acts 1911, chapter 32, does not prevent reversal for error in refusing to require the State to elect which offense it would rely on for conviction, since such error touched constitutional rights. (Post, pp. 71-73.) Acts cited and construed: Acts 1911, ch. 32.
140 Tenn. 74Shelby County v. Memphis Abstract Co. (1918)
1. BECORDS. Right 'to search. Abstract companies. Agents and employees of an abstract company are entitled to examine and copy any records in the office of a register of deeds, subject only to such reasonable regulations as that officer may prescribed. (Post, p. 83.) Cases cited and approved: State ex rel. v. Grimes, 29 Nev., 50; Clay v. Ballard, 87 Va., 787; Burton v. Tuite, 78 Mich., 363; State v. McMillan, 49 Fla., 243. Case cited and distinguished: State of Minnesota ex rel. Cole v. Rachac, 37 Minn., 373; Hanson v. Eichstaedt, 69 Wis., 539. 2. COUNTIES. Intruders in courthouse. Power and duties of sheriff. If agents or employees of an abstract company do not comply with reasonable regulations prescribed by the register of deeds in whose office they are working, they can be excluded by the sheriff, under Thompson’s Shannon’s Code, section 505, making the sheriff custodian of the courthouse in the absence of appointment of some other person for the purpose, and giving him power to prevent trespassing and to exclude intruders. (Post, . p. 83.) Code cited and construed: Sec. 505 (T.'-S.). 3. COUNTIES. Abstract companies. Occupying space in office. Rental. If a register of deeds is content to have employees of an abstract company work in his office without payment of rent for space occupied, the county court and other authorities have no power to require payment. (Post, p. 84.) 4. COUNTIES. County court. Powers. The county court has only such powers as are conferred by statute. (Post, j>. —.) Case cited and approved: Railway Co. v. Wilson County, 89 Tenn., 597. 5. COUNTIES. Courthouse. Renting space for private purposes. In the absence of statutory authority, no part of the rooms in current use by county officers in the courthouse can be rented for private purposes, and hence part of the office of the register of deeds cannot be rented or leased to an abstract company as a place where its employees may work while copying records. (Post, p. 84.) Case cited and approved: State v. Hart, 144 Ind., 107; Decatur v. De Kalb County, 130-Ga„ 488.
140 Tenn. 86Shelby County v. Cumberland Telephone & Telegraph Co. (1918)
1. TELEGRAPHS AND TELEPHONES. Pole rent. Conceding that a county can, under the police power, require a telephone company to pay a pole rent to defray expenses of supervision and inspection, an order of the county court making payment necessary only on failure to comply with certain requirements could not be considered such an exercise of the police power, (Post, pp. 95, 96.) Acts cited and construed: Acts 1885, ch. 66. Cases cited and approved: Memphis v. Postal Tel. Co., 145 Fed., 602; St. Louis v. Western Union Tel. Co., 148 U. S., Fort Smith v. Hunt, 72 Ark., 556. 2. TELEGRAPHS AND TELEPHONES. Rates and service. Penalties. If a county court is without power to regulate the service or rates of telephone companies, it is equally without power to impose a penalty for bad service or extortionate rates. (Post, pp. 95, 96.)
140 Tenn. 97Smiddy v. City of Memphis (1918)
1. CONSTITUTIONAL LAW. Privileges and immunities. A municipal corporation has the rights of an individual, and as such, in the exercise of these rights, may enjoy the privileges and immunities guaranteed to individuals hy Constitution article 11, section 8. {Post, pp. 101, 102.) Acts cited and construed: Acts 1917, ch. 488. Cases cited and approved: Fleming v. Memphis, 126 Tenn., 331; Stratton v. Morris, 89 Tenn., 522; Malone v. Williams, 118 Tenn., 425; State v. Railroad, 124 Tenn., 1. Constitution cited and construed: Art. 11, sec. 8. 2. MUNICIPAL CORPORATIONS. Governmental functions. Controlled hy legislature. Á muncipal corporation, in the exercise of its governmental functions, is to he treated as a political subdivision of the State, and its governing or political rights regulated hy those provisions of the Constitution referring to it in its capacity as a branch of the State. {Post, pp. 102, 103.) 3. MUNICIPAL CORPORATIONS. Amendment of charter. Power of legislature. The power to abolish a municipal charter includes the power to amend its, if the amendment is otherwise valid. {Post, pp. 102, 103.). Acts cited and construed: Acts 1879, ch. 10. Cases cited and approved: Redistricting Cases, 111 Tenn., 234; Luehrman c. Texing District, 70 Tenn., 425; City of Memphis v. Memphis Waterworks, 52 Tenn., 495; Governor v. McEwen, 24 Tenn., 241; McCallie v. Mayor, etc., 40 Tenn., 317; State v. Wilson, 80 Tenn., 246. Case cited and distinguished: Lynch v. Lafland, 44 Tenn., 96. 4. MUNICIPAL CORPORATIONS. “Governmental function." The act of adopting, installing, equipping, and operating a fire department is a “governmental function” and not a muncipal one. (Post, pp. 103, 104.) 5. MUNICIPAL CORPORATIONS. “Governmental function." The operation of a water plant being a governmental function, a decision to employ persons to operate it as well as the fixing of their salaries is also a governmental duty. (Post, pp. 103, 104.) 6. CONSTITUTIONAL LAW. Vested rights. A city has no vested rights to fix the rate of pay which the employees of its fire department must receive. (Post, pp. 103, 1104.) 7. MUNICIPAL CORPORATIONS. Powers in general. A city has no governing power separate from the power which the Constitution has given to the legislature. (Post, pp. 103, 104.) S. MUNICIPAL CORPORATIONS. Powers of legislature. The legislature could directly and without the intervention of city employ its entire police force or its entire fire department at such salaries as it deems wise. (Post, pp. 103, 104.) Cases cited and approved: Foster v. .Water Co., 71 Tenn., 42; Irvine v.' Chattanooga, 101 Tenn., 291; Chattanooga v. Reid, 103 Tenn., 616; Nashville v. Mason, 137 Tenn., 170; Demoville* v. Davidson County, 87 Tenn., 214; State ex rel. v. Cummings, 130 Tenn., 566. 9. MUNICIPAL CORPORATIONS. Amendment of city charter. Power of legislature. Private Acts 1917, chapter 488, amending charter of Memphis by increasing salaries of employees of fire department, except the chief, twelve per cent, is not unconstitutional. (Post, pp. 104, 105.) .10. STATES. Power of legislature. State legislature has the power to do all acts not forbidden by State or federal Constitution, expressly or by necessary implication. (Post, pp. 104, 105.) Cases cited and approved: Prescott v. Duncan, 126 Tenn., 106; Jackson v. Nimmo, 71 Tenn., 599. 11. MUNICIPAL CORPORATIONS. Acceptance of salary. Recovery of balance. Plaintiff, fireman of city of Memphis, who appeared before city council and sought to have increase in salary provided by Private Acts 1917, chapter 488, put into effect by proper action, would not, by accepting salary at the old rate between such date and date when increase was put in force, waive his right to collect increase, he not having agreed to postponement of action by council. {Post, pp. 105, 106.) Acts cited and construed: Acts 1917, ch. 488.
140 Tenn. 107Western Union Telegraph Co. v. Lamb (1918)
1. MASTER AND SERVANT. Injury to third person. Evidence. To entitle plaintiff to recover, it was necessary to show that the boy who collided with him was not only in the employ of defendant telegraph company, but was acting within the scope of his employment as one of its messenger boys at the time, since conjecture cannot take the place of proof essential to plaintiff’s claim. (.Post, pp. 110, 111.) Cases cited and approved: Goodman v. Wilson, 129 Tenn., 464; King v. Cox, 126 Tenn., 553; Railroad v. House, 96 Tenn., 552; T. C. Ry. Co. v. Morgan, 132 Tenn., 1. 2. MASTER AND SERVANT. Relation and scope of employment. Proof. Like other controverted facts, both the servant’s employment and its scope can be proven by circumstances. (Post, pp. 110, 111.) 3. TRIAL. Questions for jury. If the evidence is conflicting on material points, or diverse inferences as to material matters can be drawn from evidence not conflicting, the case is for the jury. (Post, pp. 110* 111.) 4. TRIAL. Submission of case. Evidence. In determining whether evidence warrants submission of case to jury, the evidence must be looked to as a whole, and all reasonable inferences drawn from it favorable to plaintiff. (Post, pp. 110, 111.) 5. EVIDENCE. Failure to offer rebuttal testimony. Presumption. Where the evidence tends to fix liability on defendant, and he has it in his power to offer evidence to rebut the unfavorable inferences which the proof tends to establish, and neglects or refuses to offer such proof, it may be inferred that the fully developed evidence would establish liability upon his part. (Post, pp. Ill, 112.) Cases cited and approved: Standard Oil Co. v. State, 117 Tenn., 618; Fisher v. Insurance Co., 124 Tenn., 483. 6. MASTER AND SERVANT. Injury to third person. Prima-facie case. In an action for injuries sustained by plaintiff in a collision with one of defendant telegraph company’s messenger boys, riding a bicycle, whether the boy-was within the scope of his employment at the time of the accident held for the jury. (Post, pp. 112, 113.) 7. MASTER AND SERVANT. Action for injuries. Shifting of burden of proof. When plaintiff showed by evidence circumstances from which reasonable inferences could be drawn establishing the negligence of defendant telegraph company through its servant, and the further fact that the servant was acting within the scope of his employment at the time he committed the act from which the injury resulted, the burden shifted to defendant to exonerate itself, if it could. (Post, p. 113.)
140 Tenn. 114Ogilvie v. Wright (1918)
WILLS. Construction. Absolute power of disposition. A will leaving testator’s estate to his widow, “and it is my wish that she do with said property as- she may think best, and it is further my wish and desire that at the death of my wife that all our estate . . . shall go to J.,” gave the wife power of absolute disposition, and J. does not take a remainder. Cases cited and approved: Breeden v. Welker, 2 Tenn. Ch. App., 109; Brant v. Virginia Coal & I. Co., 93 U. S., 326; Bradley v. Carnes, 94 Tenn., 27. Case cited and distinguished: Warren v. Ingram, 96 Miss., 438.
140 Tenn. 118Bolden v. State (1918)
1. HOMICIDE. Eviaence. Corpus delicti. To establish, the corpus delicti in homicide cases, tbe evidence must show that the life of a human being has been taken, which question involves the subordinate inquiry as to the identity of the person charged to have been killed, but may be proved by circumstantial evidence, especially where that is the best proof obtainable. (Post, p. 120.) 2. CRIMINAL LAW. Documentary evidence. “Entries in regular course of business. “Entries in regular course of business,” receivable as original evidence, consist of a setting forth of record of a fact or facts currently by one in the usual or routine course of business by an enterer under duty so to do; such entry importing trustworthiness, in that a motive to make the entries falsely is excluded. (Post, pp. 120, 121.) 3. CRIMINAL LAW. Hearsay evidence. Such rule is treated as an exception to the hearsay rule, founded upon the necessity of the case. (Post, pp.' 121, 122.) Case cited and distinuished: Chaffee v. United. States, 18 Wall. (85 U. S.), 516. 4. CRIMINAL LAW. Evidence. Entries in regular course of business. Entries made in the regular course of business are not receivable in evidence, if the enterer can be produced to testify in person to the matters he has recorded. (Post, p. 122.). 5. WITNESSES. Refreshing recollection. Admission of record. * Where the memory of one who has made entries in the regular course of business has failed, he may testify that entries were correctly made by him at the time, and such entries may then be admitted. (Post, p. 122.) Case cited and approved: People v. Mitchell, 94 Cal., 560. 6. WITNESSES. Testimony from hospital record. A hospital superintendent’s testimony, from entries in a hospital record, were incompetent, where he did not testify that such record was correctly kept by his subordinates. (Post, p. 122.) 7. HOMICIDE. Sufficiency of evidence. Corpus delicti. Where the only proof of death was a hospital superintendent’s testimony from the hospital record, not made by him, but which was under his control, and which he did not testify were correctly kept, a judgment of conviction will be reversed. (Post, p. 122.)
140 Tenn. 123John Deere Plow Co. v. Shellabarger (1918)
1. SALES. Breach of contract. Waiver. Where installments of lumber shipped under an installment contract were accepted and paid for by buyer, who was aware of any defects, breach of contract as to such installments was waived, and precluded buyer from using such breach as a discharge from the contract as to future installments. {Post, p. 128.) 2. SALES. Entire and severable contracts. An agreement to purchase during the contract period fifty cars of lumber, deliveries to be made upon specifications and orders of the buyer in different periods throughout the year, was entire, and not severable. {Post, p. 128.) Cases cited and approved: Foundry Co. v. Wheel Co., 113 Tenn., 370; Cement Co. v. Oliver, 125 Tenn., 135; Guernsey v. West Coast Lumber Co., 87 Cal., 249; Scott v. Kittanning Coal Co., 89 Pa., 231; J. W. Ellison, Son & Co. v. Flat Top Grocery Co., 69 W. Va„ 380. Case cited and distinguished: Cahen v. Platt, 69 N. Y., 348. 3. SALES. Installment contracts. Breach. Where deliveries of lumber were to be made upon orders and specifications of buyer, and buyer, by accepting installments delivered, waived any defects with reference thereto, failure of buyer to give further orders or specifications amounted to a breach; it not being necessary for seller to. tender lumber. {Post, pp. 128-131.) Cases cited and approved: Ault v. Dustin, 100 Tenn., 367; Gardner v. Deeds '& Hirsig, 116 Tenn., 128. 4. SALES. Goods to be manufactured. Breach of contract. Damages. The measure of damages for buyer’s breach of contract to order lumber to be manufactured was the profits which the seller would have realized had he been permitted to complete the contract; the materials for completing the nontract, though not all on hand, being available. (Post, pp. 131-133.) Cases cited and approved: Cement Co. v. Oliver, 125 Tenn., 135; Hardwick v. Can Co., 113 Tenn., 657.
140 Tenn. 134Finch v. Gibson (1918)
1. SEDUCTION. Willingness of female. The question in seduction cases is whether the female’s willingness is induced by some act, representation, or statement, in the absence of which there would be no willingness, in which case there is seduction, or whether such willingness arises out of sexual desire or curiosity, so that the female only seeks op- • portunity for commission of the act. (Post, pp. 142, 143.) Cases cited and approved: Reed v. Williams, 37 Tenn., 580; Love v. Masoner, 65 Tenn., 26; Franklin v. McCorkle, 84 Tenn., 609. Case cited and distinguished: Bradshaw v. Jones, 103 Tenn., 331. 2. SEDUCTION. Representations. “Artifice.” “Deception.” The representation of the man that pregnancy will- not result from natural sexual intercourse will not constitute artifice, deception, or promises, since such representation is contrary to the well known natural result of such act. (Post, pp. 143-145.) Case cited and distinguished: People v. Smith, 132 Mich., 58. 3. SEDUCTION. Conditional promise of marriage. A general rule that promise of marriage conditioned upon pregnancy resulting from intercourse will not amount to seduction is inapplicable, where there are other influences amounting to deception,. artifice, or promises inducing the female to surrender. (Post, pp. 145, 146.) 4. SEDUCTION. Quéstion for jury. Where there are influences other than a conditional marriage promise inducing the woman’s surrender, it is a question for the jury whether such surrender was out of sexual desire or curiosity, or induced by the man’s acts, representations, or statements. (Post. p. 146-.) 5. SEDUCTION. Elements. Chastity. Chastity of the female before and at the time of the alleged seduction is a material element of the offense. (Post, pp. 146- 148 6. SEDUCTION. Admission of evidence. Where in a seduction case defendant’s evidence showed continuous relations between plaintiff and another man, extending before and after the alleged seduction and the only question was the nature of such relation, evidence of her conversation and familiarities with a perfect stranger during such period of time was admissible; such evidence being competent both to corroborate testimony of the witness who claimed to have had such relations with plaintiff and to explain correspondence between them, and having a direct and open relation to the issue of plaintiff’s chastity at the time of the alleged seduction. The fact that such conduct occurred subsequent to the alleged seduction goes to its weight rather than to its admissibility. (Post, pp. 148,149.) Cases cited and approved; State v. Holter, 32 S. D„ 43; State v. Brown, 86 Iowa, 121; State v. Baldoser, 88 Iowa, 56; Stinehousa v. State, 47 Ind., 17. ,
140 Tenn. 150Taylor v. National Union Fire Ins. (1918)
FROM Gribson. Appeal from the Circuit Court of Gribson County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals froin the Supreme Court.— HoN. Thos. E. Harwood, Judge.
140 Tenn. 156Couch v. State (1918)
1. STATUTES. Title. Constitutional provisions. The title of Acts 1915, chapter 123, is “An act to extend the criminal jurisdiction of the State of Tennessee to west hank of the Mississippi river.” Section 1 provides that the criminal jurisdiction of Tennessee shall extend to the west hank of the Mississippi river, between points on such bank in lines parallel to north and south boundaries of the State. Section 2 provides that Tennessee, Arkansas, and Missouri have concurrent criminal jurisdiction over the parts of the territory lying opposite them, and between the lines extending parallel to their north and south boundaries. Section 3 provides that the • act is to take effect as to Arkansas and Missouri, or either of them, when said States or either of them, pass a similar act. Held, that section 2 and 3 are not broader than the title in violation of Constitution article 2, section 17, because a cession of jurisdiction and the title refers only to an extension of jurisdiction, since such sections merely indicate the means by which the subject expressed in the title is to be carried out, which is by convention with the States of Arkansas and Missouri. (Post, pp. 161, 162.) Acts cited and construed: Acts 1915, ch. 123; Acts 1909, p. 888. Cases cited and approved; Rhinehart v. State, 121 Tenn., 420; Railroad v. Byrne, 119 Tenn., 299; State ex reí. v. Pérsica, 130 Tenn., 55; State v. Yardley, 95 Tenn., 553. Constitution cited and construed: Art. 2, sec. 17 (Tenn.). 2. STATUTES. Title. A general subject expressed in the title of the statute justifies provisions in the body as to the manner, means, and instrumentalities whereby the statute is to be enforced, administered, or accomplished. (Post, 'pp. 161, 162.) 3. STATUTES. Foreign statutes. Necessity of authentication. A statute law of another State must he authenticated when relied on by parties litigant in the lower courts. b (.Post, p. 162.) 4. EVIDENCE. Judicial notice. Treaties between States. The court will take judicial notice of an Arkansas act,- which is part of a compact between the State of Arkansas and the State of Tennessee, as to concurrent criminal jurisdiction on the Mississippi river. (Post, p. 162.) Acts cited and construed: Acts 1915, ch. 123. Constitution cited and construed: Art. 1, sec. 10. 5. STATES. Compact between States. Concurrent criminal jurisdiction. Where the State of Arkansas has passed an act conferring criminal jurisdiction 'upon the State of Tennessee over the Mississippi river flowing between the two States, upon the passage of a similar act by the State of Tennessee the compact between the two States became binding. (Post pp. .162, 163.) 6. TREATIES. Treaties of federal government. Operation and effect. Constitution U. S. article 6, providing that all treaties made under the authority of the United States shall be supreme law of the land, and judges in every State shall be bound thereby, requires courts of every State to give effect to all treaties of the federal government. (Post, pp. 163, 164.) 7. TREATIES. State treaties. Operation and effect. The state courts are bound to give effect to treaties of the State without any constitutional mandate. (Post, p. 164.) 8. TREATIES. State treaties. Operation and effect. The treaties of a State are binding on its judicial officers as well as on its executive officers. (Post, p. 164.) Cases cited and approved:. United States v. The Peggy, 1 Crapch, 103; Ehrlick v. Weber, 114 Tenn., 711. 9. STATES. Compact between States. Consent of federal government. Act 1915, chapter 123, providing for concurrent criminal jurisdiction of Tennessee, Arkansas, and Missouri over the Mississippi river, is not invalid-on the ground that Missouri has not entered into an agreement with Tennessee, and that Congress has not consented to such an agreement, since Congress may give its consent later in case such an agreement is njade. (.Post, pp. 164, 165.) ■ Acts cited and construed: Acts 1915, ch. 123. Case cited and approved: State of Virginia v. State of Tennessee, 148 U. S., -503.
140 Tenn. 166Carroll Blake Const. Co. v. Boyle (1918)
1. PASTY WALLS. Definition. A “party wall” is the division wall between two connected and mutually supporting buildings, either both actually erected or one only contemplated, of different owners, commonly, but not necessarily, standing on the land of each and ordinarily maintained at mutual cost and always with the right of each owner to set timbers therein. (Post, p. 172.) Case cited and distinguished: Dunscomb v. Randolph, 107 Tenn., 97 2. PASTY WALLS. Easement of support.. Prescription. Where two adjoining owners build a party wall partly on each lot, and by agreement or by continuous use for twenty years treat it as a party wall, each has an easement of support for his half. (Post, pp. 172-174.) 3. PASTY WALLS. Joint ownership. Eight of support. For the purpose of supporting their respective houses, a party wall between adjoining lots is joint property, though the land on which it stands is held in severalty, and the right of support that one has in the part of the wall on the other’s land extends to sufficient of the adjoining soil to give the wall support. (Post, pp. 172-174.) 4. PASTY WALLS. Use. Liability. An owner and his lessee had the right to make such alterations or repairs in the part of a party wall standing on such owner’s lot as were necessary to erect a proposed building, if it could be done without weakening the wall or impairing the other owner’s use of it, and in so doing they stood as insurers to the other owner against injury to his house growing out of the work. (Post, p. 172-174.) Cases cited and approved: Webster v. Stephens, 5 Duer (N. Y.), 553; Bno v. Del Vecchio, 4 Duer (N. Y.), 53; Dowling v. Hennings, 20 Md., 179. Case cited and distinguished: ■ Sanders v. Martin, 70 Tenn., 215. 5. PARTY WALLS, Rights of adjoining owners. Duration. Bach owner acquires an easement of support by a party wall so long as it stands, which the other owner may not weaken or destroy, though when by fire or other casualty it becomes useless to either owner neither owner has the right to prevent its removal, but while it is sufficient for the support of the house of one of the owners the other cannot impair or remove it. (Post, pp. 174-176.) Cases cited and approved: Hieatt v. Morris, 10 Ohio St., 523; Clemens v. Speed, 93 Ky., 284; Mann v. Reigler, 18 L. R. A. ,(N. S.), 133; Brown v. Windson, 1 Cromp. & J., 20; Dowling v. Hennings, 20 Md., 179; Partridge v. Gilbert, 15 N. Y., 601; Commercial Nat. Bank v. Eccles, 43 Utah, 91. 6. PARTY WALLS. Excavation. Liability of adjoining owner. An owner and his lessee, excavating alongside a party wall for a proposed building, were bound to prevent injury to the property of the other owner of the wall, and could not claim exemption from liability upon the ground that the construction company was an independent contractor for whose negligence they were not liable. (Post, pp. 176, 177.) Cases cited and approved: Village of Jefferson v. Chapman, 127 Ill., 4^8; Weinman v. De Palma, 232 U. S., 571. Cases cited and distinguished: McHarge v. Newcomer,-117 Tenn.. 610; Davis v. Lumber Co., 126 Tenn., 585. 7. NEGLIGENCE. Violation of ordinance. Proximate cause. ‘ ‘Negligence per se,” The violation of a valid city ordinance is negligence per se, and where the violation is the proximate cause of an injury the violator is liable. (Post, pp. 178-179.) 8. NEGLIGENCE. Violation of ordinance. Recovery. Proximate cause. One who has been injured as the proximate result of his own violation of a valid ordinance is precluded from recovering. (Post, pp. 178, 179.) 9. PARTY WALLS. Erection of building. Notice to adjoining owner. Application of ordinance. An ordinance of the city of Memphis providing that when it is proposed to begin any excavation for any building and there are walls or structures wholly or partly on adjoining lands, or near the intended excavation, the party making the excavation shall notify the owner of the adjoining wall or structure at least fifteen days before starting the excavation as to the depth thereof, and that such other owner may enter the property of the one making the excavation to secure his wall, and within fifteen days after notice shall make it safe to the depth of sixteen feet below the curb line in front of said wall or structure, does not apply to party walls; as the operation of such rule would force one owner to improve it for the convenience of another, and would result in confiscation. (Post, pp. 178, 179.) Cases cited and approved: Schmalzried v. White, 97 Tenn., 37; Adams v. Inn Co., 117 Tenn., 470. 10. MUNICIPAL CORPORATIONS. Ordinance. Validity. There is no arbitrary rule by which the, reasonableness of an ordinance can be tested, but its validity depends upon the circumstances and the purposes and operation of the. ordinance, and an ordinance must be just, free from oppression and harshness, and must be impartial in its application. (Post, pp. 180, 181.) 11. MUNICIPAL CORPORATIONS. Ordinance. Validity. A municipality has no implied or express general grant of power which conflicts with the general principles of the common law adopted or in force it the state. (Post, pp. 180, 181.) Cases cited and approved: Jones v. Nashville, 109 Tenn., 567; Farmer v. Nashville, 127 Tenn., 516; Long v. Taxing District, 75 Tenn., 137; State v. Cooper, 120 Tenn., 553; Baker v. Dew, 133 Tenn., 135; State v. Watkins, 123 Tenn., 506; Russell v. Colyar, 51 Tenn., 159; Horne v. M. & O. R. R., 41 Tenn., 77. 12. MUNICIPAL CORPORATIONS, Ordinance. Construction. Where an ordinance is susceptible of two constructions, one of which will render it void and the other valid, it is the duty of the court to adopt the latter, although it is not the most obvious or natural construction. (Post, p. 181.) Cases cited and approved: Riggins v. Tyler, 134 Tenn., 582; Palmer v. Express Co., 129 Tenn.,- 158. 13. APPEAL AND ERROR. Review. Decision of intermediate court. The supreme court is precluded from considering defendants’ assignment of error to the action of the court of civil appeals in refusing to reverse the case for error in the charge as to the measure of damages, where the court found that the amount of the verdict was “far short of the damage sustained.” (Post, p. 181.)
140 Tenn. 182Hale v. Johnston (1918)
1. PRISONS. Contract between city and county. Effect. Under a contract between city and county for assignment of city prisoners to county workhouse, providing that the prisoners shall be “guarded and taken care of in every way by the county,” a city prisoner was made a prisoner of the county workhouse, under the exclusive charge of the county commissioners and the county employees. (Post, p. 194.) Acts cited and construed: Acts 1911, ch. 237. Cases cited and approved: Cornell v. State, 74 Tenn., 624; Boone v. State, 76 Tenn., 739; Peters v. White, 103 Tenn., 390. Code cited and construed: Sec. 7411 (T.-S.). 2. COUNTIES,' Responsibility of county commissioners. Priv. Acts 1911, chapter 237, creating the board of commissioners for Shelby county and expressly conferring all the powers concerning the county business upon such board, although it divides the public business into three departments and requires a commissioner to be assigned to each department, does not make the commissioner in charge of any department exclusively responsible, and relieve -other commissioners from responsibility, for acts of that department, since it confers all powers upon the board as a board, and requires it to meet at regular intervals and pass in review before the entire board the business of each department. (Post, pp. 194, 195.) 3. PRISONS. Liability of commissioners. Ill Treatment of prisoners. As between county commissioners and foreman and guard of county workhouse, the rule of respondeat superior does not apply as to ill treatment by the foreman and guard of workhouse prisoners. CPost, p. 195.) Oases cited and approved: Lunsford v. Johnston, 132 Tenn., 615 4. PRISONS. liability of county commissioners. Ill treatment of prisoners. As to the statutory duty cast upon county commissioners by Thompson’s Shannon’s Code, section 7411, as to treatment of workhouse prisoners, etc., and section 7391, forbidding inflicting punishment on workhouse convicts exceeding hard labor, the fact that commissioners knew nothing of the mistreatment of a particular prisoner, and did not participate in it, would not excuse them, if the cruelties administered to him as part of the discipline of the workhouse were attended with circumstances showing their failure to know and act in the premises was the result of willfulness and malice; the malice required not necessarily being express ill will towards the particular prisoner, or a conscious disregard of his welfare, but a promiscuous disregard of the interest and welfare of the inmates of the workhouse, that disregard of public duty which results from general recklessness, as well as express ill will. (Post, pp. 195-197.) 5. OFFICERS. Liability. Misconduct. A common-law action may be maintained against a public official-for misfeasance or nonfeasance in discharge of ministerial duties, if the elements of willfulness and malice are present. (Post, pp. 195-197.) Cases cited and approved: Boyd v. Ferris, 29 Tenn., 410; Gamble v. Vanderbilt University, 138 Tenn., 616; Olmstead v. Dennis, 77 N. Y., 378; Clark v. Miller, 54 N. Y„ 528; Keith v. Howard, 108 Tenn., 292; Army v. Supervisor, 11 Wall. 136. 6. OFFICERS. Liability. Ministerial duty.. Where a duty is absolute, certain, and imperative, and is simply ministerial, an officer is liable in damages to any one specially injured, either by his omitting to perform the task or by performing it negligently or unskillfully. (Post, pp. 197, 198.) 7. OFFICERS. Liability. Exercise of discretion. Where an officer’s powers are discretionary and to be exerted or withheld according to his own judgment, he is not liable to any private person for neglect to exercise those powers, nor for the consequences of a willful exercisé of them, where no corruption or malice can be imputed to him, and he keeps within the scope of his authority. (Post, pp. 197,198.) Cases cited and approved: • Moynihan v. Todd, 188 Mass., 301; Smith v. Zimmer, 45 Mont., 282; Doeg v. Cook, 126 Cal., 213; Tholkes v. Decock, 125 Minn., 507. 8. PRISONS. Negligence of county commissioners. Death of workhouse convicts. Where neglect of the statutory duties of county commissioners to see that workhouse convicts are properly treated resulted in death of such a convict from mistreatment by a foreman or guard, it was immaterial, so far as the commissioners’, liability therefor was concerned, whether their negligence was misfeasance or nonfeasan'ce,. since they owed an active, both to the public and to the inmates of the workhouse, to see that the statutory mandate was carried out, and failure to perform a positive duty is positive wrong. (Post. p. 198.) 9. PRISONS. Officers. Lability. Treatment of convict. Under Thompson’s Shannon’s Code, sections 7391, 7411, the duty of county commissioners to see that inmates of the county workhouse are kindly and humanely treated is a ministerial one, although the statutes may involve a certain discretion and judgment in working out the details by which the obligation imposed is to be discharged. (Post, pp. 19,8 199.) 10. PRISONS. Treatment of convicts. Such duty is owed both to the public generally and to any particular inmates of the workhouse. (Post, pp. 199, 200.) 11. PRISONS. Treatment of convicts. Where corporal punishment was a part of the system of a workhouse, and was constantly practiced in the most brutal ways for many years, and the county commissioners knew, or in the exercise of ordinary care could have known, of its existence, their failure to discharge their duties was the' proximate cause of punishment inflicted upon a convict from which he died, since, if they had been diligent to see that corporal punishment was not practiced as a part of the discipline of the workhouse, deceased would not have been killed in the manner in which he was. (Post, pp. 200, 201.) 12. PRISONS. Treatment of convicts. County commissioners are liable for injuries to workhouse convicts resulting from a system of corporal punishment practiced therein, of which they either knew or in the exercise of ordinary care could have known. (Post, pp. 200, 201.) 13. PRISONS. Treatment of convicts. In an action for death of workhouse convicts, prima-facie proved to have been the result of corporal punishment habitually practiced in the workhouse, the defendant county commissioners must show that they exercised ordinary care to see than plaintiffs intestate was kindly and humanely treated. (Post, pp. 200, 201.) 14. PRISONS. Treatment of conyicts. "Whether the defendant county commissioners exercised ordinary care to see that, plaintiffs intestate was kindly and humanely treated held for the jury. (Post, pp. 201, 202.) 15. PRISONS. Treatment of convicts. Evidence of the mistreatment of other prisoners, and of the conduct of the foreman and guards with respect to them, was competent to show the constant, general, and notorious practice of beating prisoners, to show the neglect of defendants in not ascertaining the truth. (Post, pp. 201, 202.) 16. WITNESSES. Cross-examination. Scope. In suit for damages, it was error, where plaintiff had called a defendant and asked him a few questions not material to his defense, to refuse to permit defendants’ counsel to cross-examine him as plaintiffs witness, for, if a party calls a witness and examines him upon a single point, the other party may cross-examine him generally. (Post. pp. 202, 203.) 17. WITNESSES. Cross-examination of one’s own witness. In a suit for damages, where plaintiff had introduced a defendant as witness, plaintiff could not contradict him in material matters in his own defense, by proving he made statements out of court which he denied in court,, for, when a litigant tenders a witness to testify in his own behalf, he thereby vouches for his credibility. (Post, pp. 202, 203.) Cases cited and approved: Sands v. Southern Ry. Co., 108 Tenn., 1; Cooley v. Galyon, 109 Tenn., 1. •18. JUDGMENT. Motion in arrest. Defect in declaration. Amendment. In action for wrongful death, where, on motion in arrest of judgment after overruling of motion for new trial, defendants .raised the point that the declaration failed to aver that deceased left next of kin, amendment of the declaration to include such averment was properly permitted. (Post, pp, 203, 204.) 19. PLEADING-. Traverse of amended declaration. Where, after defendants’ motion for new trial had been overruled and they had moved in arrest of judgment, the declaration was allowed to be amended to aver that deceased left next of kin, it was error to decline to permit defendants to traverse the amended declation. (Post. pp. 208, 204). 20. DEATH. Next of kin. Since there must be next of kin before recovery can be had for wrongful death, and the sum recovered inures to the benefit of the next of kin, this is a material part of plaintiff’s case, and plaintiff must both aver and prove the existence of next of kin. (Post, pp. 203,. 204.)
140 Tenn. 205Webb v. State (1918)
1 CRIMINAL LAW. Instructions. Requests. Circumstantial evidence. In prosecution for murder, where tbe only incriminating evidence is circumstantial, it is fundamental error to fail to instruct on the nature of circumstantial evidence and the general rules of law governing it, though the defendant tenders no special request. (Post, p. 206.) 2. CRIMINAL LAW. Evidence. “Circumstantial evidence.’’ Circumstantial evidence differs from direct evidence and consists of proof of collateral facts and circumstances from which the existence of the main fact may be deduced according to reason and common experience of mankind. (Post, pp. 206, 207.) Cases cited and approved: Frazier v. State, 117 Tenn., 430; Smith v. State, 2 Tenn. Cas., 621; Barnards v. State, 88 Tenn., 183.
140 Tenn. 208Plesofsky v. Kaufman & Flonacker (1918)
1. SALES. Contract to sell on credit. Breach. Duty to minimize damages. Where goods are contracted to he sold on credit, and the sellers thereafter breach their contract by refusing to deliver except for cash, the buyer, to minimize his damages, is under duty to take delivery for cash, if such goods are not purchasable from others, if the sellers’ offer to deliver for cash is unconditional, does not, for instance, require a prepayment and balance cash on delivery, and if the buyer is able to accept the offer and paycash. (Post, pp. 210-215.) Cases cited and approved: Cook Mfg. Co. v. Randall, 62 Iowa, 244; Havemeyer v. Cunningham, 35 Barb. (N. Y.), 515; Creve Cocier Lake Ice Co. v. Tamm, 90 Mo. App., 189; Hirsch v. Georgia Iron & Coal Co., 169 Fed., 578; Coulter v. Thompson Lumber Co., 142 Fed., 706; Minnesota Threshing M. Co.' v. McDonald, 10 N. D., 408. Cases cited and distinguished: Lawrence v. Porter, 63 Fed., 62; Coxe Bros. & Co. v. Anoka Waterworks, etc., Co., 87 Minn., 56. 2. SALES. Action by buyer. Burden of proof. The sellers have the burden to show that the buyer had cash, or by the use of credit was able to pay cash. (Post, pp. 215, 216.) Cases cited and approved: Lillard v.- Kentucky Dist. Co., 134 Fed., 168; Kentucky Dist. Co. v. Lillard, 160 Fed., 34; Howard Supply Co. v. Wells, 176 Fed., 512. Case cited and distinguished: Campfield v. Sauer, 189 Fed., 579.
140 Tenn. 217King v. Smythe (1918)
1. PARENT AND CHILD. Parent’s liability for act of child. Where property has been injured by the negligent operation of an automobile driven by the owner’s son, the owner’s liability depends on whether the son was his servant and engaged upon his business at the time. (Post, pp. 221, 222.) Cases cited and approved: Goodman v. Wilson, 129 Tenn., 464; Kayser v. Van Nest, 126 Minn., 277; Hartley v. Miller, 166 Mich., 115; McNeal v. McKain, 33 Okl., 449; Birch v. Aber-crombie, 74 Wash., 486; Griffin v. Russell, 144 Ga., 275; Van Blaricom v. Dodgson, 220 N. Y., Ill; Mirick v. Suchy, 74 Kan., 715; Chastain v. Johns, 120 Ga., 977. 2. NEGLIGENCE. Owner of dangerous instrumentality. Automobiles. Dangerous agency. An automobile is not a “dangerous agency’’ so as to make its owner liable for injuries to travelers inflicted while being driven by another person, irrespective of the relationship of master and servant or principal and agent. (Post, p. 222.) • Cases cited and approved: Jones v. Hoge, 47 Wash., 663; Goodman v. Wilson, 129 Tenn., 464. 3. PARENT AND CHILD. Parent’s liability for child’s negligence. Where .a father allows his son to drive an automobile which he has furnished for the pleasure of his family, whereby the son injures the property of a third party, the father is liable; the son while so driving acting in the furtherance of the father’s purpose. (Post, pp. 222-227.) Cases cited and approved: Van Vlaricom v. Dodgson, 220 N. Y., Ill; Reilly v. Connable, 214 N. Y., 586. 4. PARENT AND CHILD. Injury to third person. Evidence. Sufficiency. Where the son of the owner of an automobile injured the property of a third party while driving the car for his own pleasure with his father’s permission, evidence held to support a verdict for plaintiff. (Posf, p. 227.)
140 Tenn. 228Elrod v. Town of Franklin (1917)
1. TEIAL. Instruction. Misleading character. In an action against a city for injuries to a pedestrian who fell over an obstruction in a sidewalk, the instruction that the city did not insure the lives of those who used its sidewalks was not misleading because the jury might infer that the city did insure pedestrians against accidents resulting in injuries less than death, where the court later charged .fully as to the respective duties of the city and a pedestrian. (Post, p. 239.) 2. DAMAGES. Personal injuries. Peculiar condition of injured person. Where a woman pedestrian tripped over an obstruction in a city sidewalk, and her fall, concurrently with previous injuries from childbirth, proximately caused other and additional injurries, which would not have resulted at that time but for the fall, she was entitled to damages compensating her for the injuries thus proximately resulting to her, not exceeding the amount laid in the declaration, since one of weak physical structure, or small vitality, or in ill health, has as much right to protection from violence as a robust athlete, and one injuring him or her is responsible for all ill effects naturally and necessarily following the injury in the condition of health in which the injured person was. (Post, p. 239.) Oases cited and approved: L. & N. R. R. Co. v. Daugherty, 108 S. W., 336; Jones v. Caldwell, 20 Idaho, 5. Case cited and distinguished: Railroad v. Northington, 91 Tenn., 56. 3. APPEAL AND ERROR. Harmless error. Instruction. In an action against a city for injury to a female pedestrian in a i ill over an obstruction in the sidewalk, where the proof was that certain lacerations of plaintiff’s perineum and the rupture of the cervix were slight, but that plaintiff had other ailments which probably resulted from childbirth, an instruction using the word “slight” in defining the laceration of the perineum and the rupture of the cervix as the result of childbirth, though erroneous, was not reversible error. (Post, pp. 239-242.) 4. MUNICIPAL CORPORATIONS. Injury on sidewalk. Liability. Where a metallic curb box in a sidewalk was placed there by agents of the city in violation of its own ordinance, and officers and agents of the city saw the box in the position weekly and monthly, or as least should have seen it, and the slightest inspection by the city would have disclosed the improper location of the curb box, the city was liable to a pedestrian who tripped and fell over such box to her injury. (Post, pp. 242, 243.) 5. MUNICIPAL CORPORATIONS. Injury on sidewalk. Notice. Statute. A city, under Acts 1913, chapter 55, is not entitled to notice of injury from a pedestrian where it created the obstruction in the sidewalk which caused the injury; the presumption being that the city knew of the location of the obstruction because it created it. (Post, pp. 243, 244.) Cases cited and approved: McCarty v. Mountain View, 136 Tenn., 133; Hughes v. Nashville, 137 Tenn., 177; Dunnington v. Columbia, M. S., Dec. Term, 1915. 6. DAMAGES. Personal injuries. Permitti'fcur. In a female pedestrian’s action against the city for injuries to her when she tripped and fell over a metallic curb box in the sidewalk, there was no error in the trial court’s requiring her to remit $1500 of the $6500 verdict rendered by her by the jury, where her injuries, though permanent and preventing her from performing her usual household duties, consisted largely in the performing her usual household duties, consisted largely in the aggravation of a previous condition brought about by childbirth. {Post, v. 244.)
140 Tenn. 245Noel & Co. v. Schuur (1917)
1. WAREHOUSEMEN. Injury to goods. Actions. Prima-facie case. In action against warehousemen for failure to properly preserve celery in cold storage, plaintiff’s evidence of delivery in sound condition and return in deteriorated condition1 established prima-facie case. (Post, pp. 248, 249.) Acts cited and construed: Acts 1909, ch. 336. Cases cited and approved: Runyan v. Caldwell, 26 Tenn., 134; Holt Ice & Cold Storage Co. v. Arthur, 25 Ind. App., 314; Kelton v. Taylor, 79 Tenn., 264. Code cited and construed: Sec. 3608a (T.-S.). ' 2. BAILMENT. Loss of goods. Fire. Theft. Actions. Burden of proof. In actions by bailors against bailees for loss of goods by Are or theft, the bailor must prove that fire ,or theft was due to bailee’s negligence. (Post, p. 249.) Case cited and approved: Lancaster Mills v. Merchants’ Cotton Press & S. Co., 89 Tenn., 1. 3. WAREHOUSEMEN. Injury to perishable goods. Owners duty to remove goods. Where warehousemen failed to give owner of perishable goods notice specifying time within which the goods must be removed as authorized by Uniform Warehousemen Act, owner was not required to remove goods by the rule requiring injured party to do what he reasonably may to minimize damage. (Post, pp. 249, 250.)
140 Tenn. 251Security Bank & Trust Co. v. Goldfarb (1918)
USURY. Eights and remedies. Costs. Where a cross-hill, alleging usury, is dismissed, because the usurious transactions, though proven, have been settled, Thompson-Shannon Code, section 494V, providing that the person taking usury shall pay costs, requires that the cross-defendant be taxed with the costs of the cross-bill, though successful in its defense. Code cited and construed: See. 4947 (T.-S.).
140 Tenn. 253Seessel v. New Amsterdam Casualty Co. (1918)
INSURANCE. Indemnity insurance. Liability. Under indemnity policy by which insurer agrees to defend suits, where judgment against insured exceeds insurer’s liability, the insurer must either provide the required supersedeas bond, and appeal, or pay the agreed liability. Cases cited and approved: Pacific Coast Casualty Co. v. General Bonding Co., 240 Fed., 36; Rochester Mining Co. v. Maryland Casualty Co., 143 Mo. App., 555. Case cited and distinguished: Casey-Hedges Co. v. Southwestern Surety Co., 201 S. W., 137.
140 Tenn. 259Leathers v. Deloach (1918)
1. SPECIFIC PERFORMANCE. Grounds for refusal of relief. Whpre at time mother, life tenant, and remaindermen, her children, contracted to convey as an entirety land jointly, mind and health of mother was greatly impaired, specific performance will not he granted vendee, who had been a regular visitor in family for four or five year paying his attentions to a daughter, making it probable that contract was unfairly obtained; purchase price being $7,000 and value of land $9,000. (Post, p. 261.) 2. EVIDENCE. Common Knowledge. Use of Morphine. Effect. Members of supreme court know without proof that use of one gram of morphine a week for about thirty years necessarily undermines physical strength and impairs mind of the strongest. (Post, pp. 262-264.) 3. SPECIFIC PERFORMANCE. Discretion. While discretion to grant or refuse specific performance must be grounded upon legal reasons, the remedy is always discretionary and not one of right. (Post, pp. 264, 266.) Case cited and approved: New River Lumber Co. v. Tennessee Railroad Co., 136 Tenn., 677. 4. SPECIFIC PERFORMANCE. Contract not in dispute. Decree for specific performance of a contract which is not in dispute will not be granted. (Post., p. 265.) 5. SPECIFIC PERFORMANCE. Mutuality. Since, where remaindermen and life tenant contracted to convey land as an entirety jointly, remaindermen cannot compel vendee to specifically perform by purchasing remainder interest only, vendee cannot compel remaindermen to specifically perform contract by conveying remainder only. (Post. pp. 265-267.) 6. SPECIFIC PERFORMANCE. Mutuality. It Is a general principle of equity to grant specific performance only where there is mutuality of obligation and when the ‘remedy is mutual. {Post, pp. 265-267.) 7. SPECIFIC PERFORMANCE. Mutuality. Mutuality of remedy is jurisdictional and, if it does not exist, a court of equity cannot entertain bill for specific performance. (Post, pp. 2(55, 267.) Cases cited and approved: United States v. Noe, 64 U. S. (23 How.), 312; Brashier v. Gratz, 19 U. S. (6 Wheat.), 528, Dorsey v. Packwood, 53 U. S. (12 How.), 126; Old Colony R. Corp. v. Evans, 6 Gray (Mass.), 25; Benedict v. Lynch, 1 John. Ch. (N. Y.), 370; Jones v. Newhall, 115 Mass., 244; Rutland Marble Co. v. Ripley, 77 U. S. (10 Wall.), 339; Prink v. Thomas, 20 Or., 265; James v. Yernon, 129 Tenn., 637.
140 Tenn. 268McCormick v. Phillips (1918)
1. APPEAL AND ERROR. Contempt. Injunction. After an appeal is taken from chancellor’s decree making temporary injunction perpetual, the chancery court has no jurisdiction to entertain contempt proceedings against defendant for violation of the injunction; a broad appeal in chancery having vacated the chancellor’s decree. (Post, pp. 271, 272.) Cases cited and approved: Furber v. Carter, 34 Tenn., 1; Pond v. Trigg, 52 Tenn., 532; Smith v. Holmes, 59 Tenn., 466; Turley v. Turley, 85 Tenn., 251; Yaccaro v. Cicalla, 89 Tenn., 63; Moses v. Grainger, 106 Tenn., 7; Davis v. Jones, 40 Tenn., 603; Enochs v. Wilson, 79 Tenn., 228; Loftis v. Loftis, 94 Tenn., 231; Fort v Fort, 118 Tenn., 103; Barnes v. Typographical Union, etc., 232 Ill., 402; State v. Harness, 42 W. Va., 414; Powhatan Coal ■& Coke Co. v. Ritz, 60 W. Va., 395; Gates v. McDaniel, 4 Stew. & P. (Ala.), 59; Kentucky & I. Bridge Co. v. Krieger, 91 Ky., 625; State ex rel. Carroll v. Campbell, 25 Mo. App., 635; Wilkinson v. Dunkley-Williams Co., 141 Mich., 409; Pennsylvania R. Co. v. National Docks & N. J. Junction Connecting R. Co., 54 N. J. Eq., 647; State ex rel. Mason v. Harper’s Ferry Bridge Co., 16 W. Va., 864; Menuez v. Grimes Candy Co., 77 Ohio St., 386; Merrimac River Savings Bank v. City of Clay Center, 219 U. S., 527; Humphreys County v. Houston County, 63 Tenn., 591. 2. APPEAL AND ERROR. Contempt. Injunction. Where an appeal is taken from a decree making temporary injunction perpetual, appellate court has jurisdiction to punish defendant for contempt because of violation of injunction. (Post, pp. 272-274.) ' Code cited and construed: Secs. 5918, 5924 (T.-S.). 3. CONTEMPT. Punishment. Appeal. An appeal from chancellor’s decree for injunction does not prevent an indictment of defendant for public contempt for violation of the injunction and his punishment in a criminal court. (Post, p. 274.)
140 Tenn. 275Tuggle v. Southern Ry. Co. (1918)
1. ADVERSE POSSESSION. Husband and wife. Tacking Possession. As a matter of law the wife cannot tack her adverse possession to the previous adverse possession of the husband, in order to complete the statutory period. {Post, pp. 276, 277.) Acts cited and construed: Acts 1819, ch. 28. Case cited and approved: Kittel v..Steger, 121 Tenn., 409-412. Code cited and construed: Sec. 4458 (T.-S.) 2. ADVERSE POSSESSION. Tacking. Right of possession. The husband, on taking possession of land without title, could validly, by oral agreement, transfer possession to his wife, • and her possession thereafter though they lived together, was available to her under her claim of adverse possession {Post, pp. 276, 277.) 3. EMINENT DOMAIN. Remedy of owner. Injunction. Title. One who had title by adverse possession could have injunction restraining a railroad from trespassing, by entering and destroying her house without compensation. {Post. pp. 277, 278.) Cases cited and approved: Walker v.Fox, 85 Tenn., 154; Railway & Light Co. v. O’Fallon, 130 Tenn., 270. 4. EMINENT DOMAIN. Injunction bond. Remedy of owner. Where adverse possessor sued to restrain railroad’s trespass by destroying her house without compensation, and the injunction was dissolved, after indemnity bond was taken, whereupon the railroad destroyed the house, plaintiff was entitled to have her damages, either upon or independent of the bond. {Post. p. 278.) 5. EMINENT DOMAIN. Remedy of owner. Injunction. Bond. Relief. Where railroad, without proceeding for determining damages, entered on land of one holding by adverse possession and destroyed her house, she could, after suit to restrain the trespass, in which an indemnity bond was given, recover, on reference for accounting on the bond, compensation under Thompson-Shannon Code, section 1866, as for entry without proceedings for condemnation. (Post, pp. 278, 279.) 6. EMINENT DOMAIN. Remedy of owner. Injunction. Bond. Life estate. Where plaintiff, claiming land by adverse possession, sued to restrain trespass by railroad, which gave indemnity bond conditioned on plaintiff’s proving title, plaintiff could recover, by reference for accounting on the bond, although she claimed no title, but only a life estate. (Post, p. 279.)
140 Tenn. 280Hooker v. Peterson (1918)
1. WITNESSES. Transactions with decedents. Competency of parties. Where plaintiff filed hill under Thompson’s-Shannon’s Code, sections 4000, 4001, to subject decedent’s real estate to payment of a debt, the administrator being a necessary party, and an accounting being necessary, the judgment after which would run against the administrator, plaintiff could not, under Thompson’s-Shannon’s Code, section 5598, testify as to transactions with deceased. (Post, pp. 285-288.) Cases cited and approved: Dulles v. Read, 14 Tenn., 53, 68; Ap-person v. Harris, 75 Tenn., 323; Henry v. Mills, 69 Tenn., 151; Grier v. Canada, 119 Tenn., 17; Hamilton v. Zimmerman, 37 Tenn., 39'; Cooley v. Steele, 39 Tenn., 605; Lee v. Calvert (Ch. App.), 57 S. W., 627; Allen v. Westbrook, 84 Tenn., 251; Stephenson v. Walker, 67 Tenn., 289; Chilton v. Scruggs, 73 Tenn., 308; Stillman v. Stillman, 66 Tenn., 175; First Nat. Bank at Jacksboro v. Lancaster, 196 U. S., 115; Rand v. Iowa Central R. R. Co., 96 App. Div., 413; Goodloe v. Goodloe, 116 Tenn., 252; Green v. Orgain. (Ch. App.), 46 S. W., 477. 2. BANKRUPTCY. Scheduling assets. Where stepfather died without having performed his contract to deed or will land to his stepson in consideration of the latter’s services as son, the stepson was not estopped to sue stepfather’s administrator for value of such services by the fact that in stepson’s bankruptcy proceedings, during stepfather’s lifetime, he omitted to schedule his claim against his stepfather; the claim being a mere expectancy dependent on contingencies. (Post, pp. 288, 289.) Case cited and approved: Taylor v. Swafford, 122 Tenn., 303.
140 Tenn. 290Dillard & Coffin Co. v. Richmond Cotton Oil Co. (1918)
1. CORPORATIONS. Debts of dummy. Liability of dominating corporation. Missouri corporation organized for convenience of Tennessee corporation which was to finance it, held merely dummy of Tennessee corporation, so that Tennessee corporation was liable to complainants for balance due on money advanced to Missouri corporation and used by it in its business under principle that equity will disregard legal entity of one corporation when controlled by another. {Post, pp. 292-296.) Cases cited and approved: Towles & Co. v. Miles, 131 Tenn., 79; McDonald, Shea & Co. v. Railroad, 93 Tenn., 281; Madison Trust Co. v. Stahlman, 134 Tenn., 402. 2. CORPORATIONS. Debts of dummy. Liability of dominating corporation. A corporation which for purpose of determining whether it would purchase properties of another took over all properties under agreement whereby it was to operate in name of latter, pay all operating expenses and six per cent, rental, and retain all moneys due and payable to the latter, held, regardless of validity of agreement, liable to complainants who, during existence of agreement, advanced to latter’s dummy money used by dummy to pay operating expenses. {Post, pp. 296-298.) 3. CORPORATIONS. Stock transaction. Validity. An agreement by which one corporation for purpose of determining whether it would purchase properties of another took over all properities of latter was to operate in latter’s name, pay operating expenses, and retain all moneys due and payable to latter, was not a “stock transaction,” and was valid where not made for purpose of stifling competition. {Post, pp. 298-300.) Cases cited and approved: Coal Creek Coal Co. v. Tenn. Coal Co., 106 Tenn., 651; Starke v. Guffey, 98 Tex. 582. 4. CORPORATIONS. “Stock transaction.” Validity. One corporation cannot purchase stock of another. (Post, pp. ■ 300-303.) 5. CORPORATIONS. Ultra vires contracts. Estoppel. A corporation which has received and retains money in the operation of its business under a void contract will not be heard to say that its acts are ultra vires. (Post, pp. 300-303.) Cases cited and approved: Elevator Co. v. M. & C. R. R., 85 Tenn., 703; Marble Co. v. Harvey, 92 Tenn., 115; Miller v. Insurance Co., 92 Tenn., 167; Clark v. Memphis S. & Ry. Co., 123 Tenn., 232; Hotel Co. v. Dyer, 125 Tenn., 302; Wood v. Green, 131 Tenn., 583; Nat. Bank v. Stahlman, 132 Tenn., 367; Central Transit Co. v. Pullman Palace Car Co., 139 U. S., 24; Tenn. Ice Co. v. Raine, 107 Tenn., 151; Rankin v. Emigh, 218 U. S., 27; Citizens’ Cent. Nat. Bk. v. Appleton, 216 U. S., 196.
140 Tenn. 304Tri-State Fair v. Rowton (1918)
FROM SHELBY. Appeal from the Circuit Court of Shelby County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court.— HoN. Ben. L. Capell, Judge.
140 Tenn. 314Drainage Dist. No. 4 v. Askew (1918)
1. JURY. Right to jury trial. Drainage proceedings. On application to establish drainage district under Acts 1909, chapter 185, giving right to jury trial on appeal to circuit court according to the law of the land, property owners are entitled to a jury trial as to advisability, property, and feasibility of establishing district and of including certain lands; such questions being purely of legal cognizance. (Post,,pp. 322, 323.) 2. CONSTITUTIONAL LAW. Judicial power. Wisdom of legislation. That construction of drainage act (Acts 1909, chapter 185) to award jury trial might render the act useless does not concern the court if the constitutional right to jury trial exists; the feasibility of the act being for the legislature. (Post, p. 323.) Cases cited and approved: Trigally v. Memphis, 46 Tenn., 382; State ex rel. v. King, 137 Tenn., 17; Neely v. State, 63 Tenn., 180; McGinnis v. State, 28 Tenn., 43. 3. EVIDENCE. Opinion evidence. Nonexperts. In proceeding to establish drainage district, questions as to land topography may be proved by the evidence of laymen. (Post. pp. 323, 324.) . 4. EVIDENCE. Nonexpert testimony. Rapidly of water flow may be shown by laymen. (Post, pp. 323, 324.) 5. EVIDENCE. Nonexpert testimony. The value. of land before and after drainage can be proved by the testimony of nonexpert witnesses. (Post, p. 323, 324.) 6. EVIDENCE. Nonexpert testimony. Proportionate assessment and damages arising to land from the establishment of a drain can be shown by the testimony of laymen. (Post, pp. 323, 324.) 7. EVIDENCE. Expert testimony. Capacity of canal. In proceeding to establish drainage district testimony of laymen as to capacity of the canal for removing accumulated water is incompetent. (Post, pp. 324, 325.) 8. DRAINS. Establishment of drainage districts. Matters material. Where after main drain is built property owners, in order to drain their lands, must build private laterals, cost of such laterals could not be considered in determining propriety of establishing drainage district, which depends primarily on consideration of public health and welfare. (Post, pp. 325, 326.) 9. DRAINS. Drainage districts. Establishment. Time to claim . damages. In drainage proceedings under Acts 1909, chapter 185, section 5 of which requires claim for damages to be filed five days before the hearing, and section 4 requires five days’ notice, a claim is barred unless filed five days before the- hearing, but in the absence of notice the claimant is entitled to five days in which to file. (Post, pp. 326, 327.) 10.DRAINS. Establishment of drainage districts. Appeal. Scope. Property owners in proceeding to establish drainage district being entitled to jury trial, the court on appeal cannot determine the advisabiltiy of establishing the district. (Post, p. 327.)
140 Tenn. 328Graham v. Graham (1918)
FROM SHELBY. Appeal from the Circuit Court of Shelby County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court.— Hon. Bek L. Capell, Judge.
140 Tenn. 336Anderson v. Lucas (1918)
1. WILLS. Devise of fee. Use of “heirs.” It .was not necessary at common law to use the word “heirs” in a devise in order to carry a fee. (Post, pp. 346-348.) 2. WILLS. Devise in trust. Presumption as to interest of beneficiaries. In a devise to trustees of a legal estate in fee for the benefit of an individual or a class, testator will be presumed to intend that the beneficiaries shall take an equitable interest of precisely the same extent as the legal interest expressly vested in the trustee. (Post, pp. 346-348.) Case cited and distinguished: Fox v. Fox, 102 Tenn., 77. 3. WILLS. Subsequent provisions. Subsequent provisions in a will, when in conflict with prior ones, will control. (Post, pp. 348, 349.) Case cited and approved: Owen v. Hancock, 38 Tenn., 563. 4. WILLS. Construction. Estate tail. The language “and if she should die without lawful issue,” in devise to trustees for use of testator’s daughter, after her death whole to be divided among her children, if any, and if she should die without lawful issue property to be equally divided ' among other daughters, at common law would have created estate tail. (Post, pp. 349, 350.) Cases cited and approved: Randolph v. Wendel, 36 Tenn., 647; Bramlet v. Bates, 33 Tenn., 554; Nott v. Fitzgibbon, 107 Tenn. 54; Scruggs v. Maybrry, 135 Tenn., 586; Speight v. Askins, 118 Tenn., 719. 5.WILLS. Estate tail. Conversion into fee. Under Thompson’s-Shannon’s Code, section 3673, testator’s daughter, language of will devising to her in 1843 an estate tail at common law, took estate in fee in lands covered by act. {Post, pp. 350-352.) Acts cited and construed: Acts 1784, ch. 22, sec. 5; Acts 1851-52, ch. 91, sec. 3. Cases cited and distinguished: Nott v. Fitzgibbon, 107 Tenn., 58; Machell v. Weiding, 8 Sim., 4. Codes cited and construed: See. 3673, 3675 (T.-S.). 6. WILLS. Life estate. Executory devise. Enlargement of fee. Where estate is created in fee or for life, and on the estate another is conditioned to arise by way of executory devise on occurrence of given event, and such event does not occur, so that estate over cannot vest, first estate continues, and, if a life estate, is enlarged into a fee. {Post, p. 352-353.) 7. WILLS. Death of devisee. Heirs. On death of a devisee, her children could not take any estate, under the devise, but took only by inheritance. {Post, pp. 352, 353.) 8. ESTOPPEL. By deed. Effect as against heir. In case of conveyance by first taker of estate for life with an executory devise over, the right of inheritance of her children would be defeated; they being estopped by the deed. {Post, pp. 352, 353.) Cases cited and approved: Owen v. Hancock, 38 Tenn., 565-568; Alston' v. Davis, 39 Tenn., 266; Petty v. Moore, 37 Tenn., 126; Cowan v. Wells, 73 Tenn., 682; Nott v. Fitzgibbon, 107 Tenn., 64; Williamson v. Tunis, 107 Tenn., 83. 9. WILLS. Independent devise. “Addition.” “Accretion.” Item of will, giving to testator’s sons, as trustees for daughter, seven hundred twelve and one-half acres of land, held, an independent devise, not in substitution for any property devised in any prior item, and not being technically an “addition” or “accretion” to any former legacy or devise. {Post, pp. 353-357.) 10.WILLS. Relating devise to other. Express terms. Express terms in a will are not needed to range a devise in trust under the terms of any other. {Post. pp. 353-357.) 11. WILLS. Construction. Freedom of devise from trust. In case of doubt, whether it was not testator’s purpose to give land devised in subsequent items of will to each of three daughters free from trust fetters which he attempted to impose on their rights to other property under prior items of will, such doubt should be resolved in favor of first takers, daughters and heirs of testator. (Post, pp. 353-357.) Case cited and distinguished: Fox & Wheatly v. Fox, 102 Tenn., 71.
140 Tenn. 358West v. State (1918)
1. CRIMINAL LAW. Confinement in workhouse. Application of statute. Pub. Acts, 1915, chapter 107, (Thompson’s-Shannon’s Code, section 7206a), providing that where any person shall be convicted of felony, and jury shall be of opinion offense merits punishment of five years Or less, court may order person confined in county workhouse, does not apply to felonies for which maximum punishment exceeds five years’ imprisonment in penitentiary. (Post, pp. 359, 360.) Acts cited and construed: Acts 1911, ch. 36; Acts 1915, ch. 107. Code cited and construed: Sec. 6456 (T.-S.). 2. STATUTES. Construction. Absurd result. In construing statutes, the rule is that the courts will not adopt a construction which will effectuate an absurd result. (Post, pp. 360-362.) Acts cited and construed: Acts 1913, ch. 8; Cases cited and approved: Riggins v. Tyler, 134 Tenn., 581; Wise v. Morgan, 101 Tenn., 273; State ex rel. v. Bush, 136 Tenn., 478. . Case cited and distinguished: Woods v. State, 130 Tenn., 100. Code cited and construed: Sec. 7210a9 (T.-S.). 3. STATUTE. Construction. Conflict with former act. It is the duty of the supreme court, in construing a statute, if possible, to avoid a conflict with a prior act. (Post, p. 362.) Acts cited and construed: Acts 1913, ch. 8, sec. 2. Cases cited and approved: Life & Casualty Co. v. King, 137 Tenn.( 698; State v. Chadwick, 131 Tenn., 356.
140 Tenn. 363Parham v. Page (1918)
1. LICENSES. License taxes. Apportionment. Acts 1909, chapter 479, section 3, imposing an ad valorem tax and a graduated privilege tax upon all merchants, requires the entire privilege tax to be equally divided between the State and the county. (Post, pp. 365-367.) Acts cited and construed: Acts 1909, ch. 479, sec. 3. 2. LICENSES. License taxes. Amount. Acts 1909, chapter 479, section 3, imposing on all merchants an ad valorem, tax and a graduated privilege tax, does not contemplate the collection, as a privilege tax from merchants whose stock is less than $800, of the amount of $7.50 per annum for the State and a like amount for the county, but that a total of $7.50 be collected. (Post, pp. 365-367.)
140 Tenn. 368Sanford v. Keef (1918)
1. SALES.' Delivery. Contract for sale'of cotton gin, passing title on delivery to carrier, warranting the gin if erected according to plan furnished, and binding the purchaser to make the erection, become a completed sale on delivery to the carrier of the gin, and the erection was the work of the purchaser. (Post, p. 372.) 2. SALES. Construction of writings. Questions for court. Construction and legal effect of an unambiguous, unequivocal written contract for sale of a cotton gin are matters of law for the court. (Post, p. 372.) 3. MASTER AND SERVANT. Character of relationship. Where contract for sale of cotton gin passed title on delivery of gin to the carrier, and required the buyer to erect it, one injured in such work was not a servant of the seller, but of the buyer, though he was an expert furnished for the work by the seller, and though the buyer and his other servants looked to him for guidance in the work. (Post, pp. .372-374.) Case cited and approved: St. Louis, etc., R. Co. v. Yates, 111 Ark., 486. Case cited and distinguished: Arkansas Logging Co. v. Martin, 116 Ark., 318. 4. MASTER AND SERVANT. Character of relationship. A servant who is employed and paid by one person may nevertheless be ad hoc the servant of another in a particular transaction. (Post, pp. 374-376.) Cases cited and approved: Powell v. Construction Co., 88 Tenn., 692; Linnehan v. Rollins, 137 Mass., 123; Samuelian v. American Tool & Mach. Co., 168 Mass., 12; Wyllie v. Palmer, 137 N. Y., 24S. Case cited and distinguished: Delory v. Blodgett, 185 Mass., 126. 5. MASTER AND SERVANT. Fellow servants. If, while engaged in the work of the temporary or special master, the servant be injured by negligent act of the latter’s other servants, he is, notwithstanding his general employment by another, a fellow servant of the special master’s employees. (Post, pp. 376-379.) Cases cited and approved: Purnell v. Great Western Railway, 1 Q. B. D., 636; Rourke v. White Moss Colliery Co., 2 C. P. D., 205. Cases cited and distinguished: Hasty v. Sears, 157 Mass., 123; Euan v. Lippincott, 47 N. J. Law, 192. 6. MASTER AND SERVANT. Character of relationship. Where contract for sale of cotton gin passed title on deliver^ of gin to the carrier, and required the buyer to erect it, and warranted the gin if erected as directed, under a servant of the seller, the seller’s interest in the erection, in order to save it harmless under its guaranty, did not make the erection a joint enterprise. (Post, pp. 379-380.) Cases cited and approved: Westover v. Hoover, 88 Neb., 201; Higgins v. Western Union Tel. Co., 156 N. Y., 75; Cunningham v Thief River Palls, 84 Minn., 21; St. Louis, etc., R. Co. v. Bell, (Okla.), 149 Pac., 336. 7. MASTER AND SERVANT. Lent servant. To invoke doctrine of lent servants, the servant must, expressly or impliedly, acquiesce in the arrangement. (Post, pp. 380, 381.)
140 Tenn. 382Roy v. Sanford (1918)
1. WITNESSES. Transaction with decedent. Inquiry into status of party by court. In determining whether the fact that a certain person is a party to an action disqualifies a witness to testify as to a transaction with a person since deceased, the court will inquire into the status of such party. (Post, p. 389.) ' Acts cited and construed: Acts 1869-70, sec. 2, ch. 78. Cases cited and approved: Rielly v. English, 77 Tenn., 16; Fuqua v. Dinwiddie, 74 Tenn., 645; Hughlett v. Conner, 59 Tenn., 83; Grange Warehouse Ass’n. v. Owen, 86 Tenn., 355; Part v. Avery, 5 Watts & S., 511; Anderson v. Brodie, 15 Tenn., 297; Tatum’s Ex’rs v. Lofton & Anderson, 3 Tenn., 115; Turner v. Huggins, 130 Tenn., 181; Trabue, Davis & Co. v. Turner, 57 Tenn., 447. Cases cited and distinguished: Barbee v. Mason, 45 Tenn., 108; v Harris v. Palmer, 21 Pa., 296; Lea v. Henderson, 41 Tenn., 146. Code cited and construed: Sec. 5598 (T.-S.). 2. WITNESSES. Transaction with deceased. Relationship of witness to party calling him. Where a witness is called to testify as to transaction with or statement by a decedent or a ward in an action against an executor, administrator, or ward, the court in determining competency of the testimony under Thompson-Shannon Code, section 5598 (Acts 1869-70, chapter 78, section 2), making such testimony by a party to such action incompetent, will consider the interests between witness and party calling him, regardless of witness’ technical position on record. (Post, p. 389.) 3. WITNESSES. Competency. Action against administrator. Testimony against deceased. Indorsement of note for collection. Under Thompson’s-Sliannon’s Code, section 5598 (Acts 1869-70, chapter 78, section 2, making testimony as to transaction with deceased by party to action against administrator incompetent, in action on note against administrator of deceased maker, payee cannot testify to execution of note, although action was brought by Party to whom it had been indorsed for collection. (Post, pp. 389, 390.) Case cited and approved: Wells v. Schoonover, 56 Tenn., 805. 4. WITNESSES. Competency. Question for court. The competency of witnesses is a matter for trial judge to pass on. (Post, p. 390.)
140 Tenn. 391Nashville, C. & St. L. Ry. v. Kallock (1917)
1. MASTER AND SERVANT. Injury from defective tool. Negligent furnishing. “Burred.” Punch, the head of which was “burred,” or mashed down, by the blows of a heavy hammer and parts of it flattened over on the stem, whereby boiler maker’s assistant was injured, held not furnised by master, so as to render it liable; he borrowing it of another workman, on suggestion or direction of another than his department foreman, who alone, under master’s rules, could direct this. (Post, pp. 392-396.) 2. MASTER AND SERVANT. Injury to employee. Vice principal. Boiler maker, though leader in the particular work to which he and his assistant were assigned by subforeman, was not a vice principal, but only fellow servant of his assistant, injured in the work. (Post, pp, 396-398.) Case cited and approved: Southern Ry. Co. v. Hensley, 138 Tenn., 408.
140 Tenn. 399Pryor v. Marion County (1917)
1. TAXATION. Property subject. Judgment in condemnation proceedings pending appeal. Under Acts 1907, chapter 602, section 5 (1) (Thompson-Shannon Code, section 774, subd. 1), providing that all property shall be assessed for taxes for the current year, a judgment in condemnation proceedings pending appeal is taxable. (Post, pp. 402-404.) Acts cited and construed: Acts 1907, ch. 602, sec. 5. Cases cited and approved: People ex rel. Lyon v. Halstead, 26 App. Div., 316; Arnold v. Middletown, 41 Conn., 207; Bucksport v. Woodman, 68 Me., 33; Lowell v. Street Commissioners, 106 Mass., 540; Powers v. Worcester, 210 Mass., 471; United States v. Ceree'edo Hermanos Y. Compania, 209 U. S.,‘ 332; Union Ins. Co. v. Hoge, 21 How., 35; English v. Crenshaw, 120 Tenn., 531; Memphis v. Bing, 94 Tenn., 644; Crenshaw v. Moore, 124 Tenn., 528; Gulf Refining Co., v. Chattanooga, 136 Tenn., 505. Cases cited and distinguished: Cameron v. Cappeller, Auditor, 41 Ohio St., 533; Plow Co. v. Hays, 125 Tenn., 15.5. Code cited and construed: Sec. 774, subd. 1 (T.-S.). 2. TAXATION. Property subject. Construction of statute. A doubt as to whether property sought to he taxed is taxable is resolved in favor of tax-payer. (Post. pp. 404-406.) 3. STATUTES. Construction. Executive construction. Courts are not bound by the construction put upon statutes by the officers charged with their enforcement. (Post, pp. 404-406.) Cases cited and approved: State v. Murphy, 101 Tenn., 515; Southern Ry. Co. v. Jennings, 130 Tenn., 455. 4. TAXATION. Property not subject to accurate valuation. Under Constitution article 2, section 28, providing that all property shall he taxed and specifying what the legislature may exempt from taxation, property is not exempted because of the difficulty of assessing it at its actual worth. (Post, pp. 406, 407.) Cases cited and approved: Bank v. Memphis, 116 Tenn., 653; Memphis v. Bank, 91 Tenn., 588; Railroad v. Wilson, 89 Tenn., 608; Chattanooga v. Railroad, 75 Tenn., 576. Constitution cited and construed: Art. 2, sec. 28.
140 Tenn. 408Core v. Resha (1917)
1. MASTER AND SERVANT. The relation. Liability for chauffeur’s negligence. Regarding liability for injury by automobile of person on sidewalk through negligent driving, held, machine was in possession of chauffeur as servant of board of commissioners of county asylum, and not of owner, wife of asylum superintendent; the county having contracted for its use for commissioners on occasions of their visits to institution, agreeing to pay for its upkeep and wages of chauffeur, and it being, at time, on way for them, .on their order. {Post, pp. 410-413.) Acts cited and construed: Acts 1905, ch. 173. Cases cited and approved: Leach v. Asman, 130 Tenn., 510; Parker-Harris Co. v. Tate, 135 Tenn., 509; Coca-Cola Bottling Works v. Brown, 139 Tenn., 640; Symington v. Sipes, 121 Md., 313; Reilley v. Connable, 214 N. Y., 586. Case cited and distinguished: Goodman v. Wilson, 129 Tenn., 464. Code cited and construed: Sec. 3079al95 (S.). 2. MASTER AND SERVANT. Liability for chauffeur’s negligence. Lien statute. Laws 1905, chapter 173, section 5, giving lien on automobile for recovery for injuries from running thereof in willful violation of statute, by whomever it was driven, does not change common-law rule that owner is not personally liable for permissive use, not in his business. {Post, pp. 413-417.) Cases cited and approved: Mattel v. Gillies, 16 Ont. L., 558; Hartley v. Miller, 165 Mich., 115; Louisville Lozier Co. v. Sallee, 167 Ky., 499.
140 Tenn. 418Allen v. Board of Mayor of Smithville (1917)
STATUTES. Partial invaUdity. Priv. Acts 1917, chapter 753, granting a charter to Smithville, is void as a whole, in that section 1 thereof, a provision of vital importance, provides, contrary to Constitution, article 2, sections 28, 29, as to taxes throughout the State being uniform, that not more than one acre of lands included within boundary and used for farming purposes shall 'be taxable. Acts cited and construed: Acts 1917, ch. 753. Cases cited and approved: Jones v. Memphis, 101 Tenn., 188; Taylor, McBean & Co.' v. Chandler, 56 Tenn., 366; Reelfoot Lake v. Dawson, 97 Tenn., 151; Keesee v. Civil Dist. Board, 45 Tenn., 127; Malone v. Williams, 118 Tenn., 391. Constitution cited and construed: Art. 2, secs. 28, 29.
140 Tenn. 423Mayo v. Bank of Gleason (1918)
1. GUARDIAN AND WARD. Termination. Marriage of Ward. Under the provisions of Act 1913 Thompson’s-Shannon’s Code, section 4249a) for the emancipation of married women, the marriage of a minor female does not terminate her guardianship. (Post, pp. 424-426.) Acts cited and construed: Acts 1913, ch. 26. Cases cited ad approved: Prewitt v. Bunch, 101 Tenn., 723; Minter v. Clarke, 92 Tenn., 460; Lane v. Farmer, 79 Tenn., 568; State v. Parker, 67 Tenn., 497; Jones v. Ward, 18 Tenn., 160; Williford v. Phelan, 120 Tenn., 589; Sanders v. Forgasson, 62 Tenn., 249; Gill v. McKinney, 204 S. W., —; Hull v. Hull, 202 S. W., 914; Day v. Burgess, 202 S. W., 911; Gould v. Frost, 138 Tenn., 467; Mclrvin v. Lincoln University, 138 Tenn., 260; Snyder v. Jett, 138 Tenn., 211; Travis v. Sitz, 136 Tenn., 156; Baker v. Dew, 133 Tenn., 126; Bennett v. Hutchens, 133 Tenn., 65; Lillienkamp Rippetoe, 133 Tenn., 57; Chattanooga v. Carter, 132 Tenn., 609; Knoxville Ry. & Light Co. v. Vangilder, 132 Tenn., 487; Parlow v. Turner, 132 Tenn., 339. Codes cited and construed: Sec. 4249a (T.-S.). 2. HUSBAND AND WIFE. Married Women’s Act. Construction. The provisions of Thompson-Sliannon Code, section 4249a, for the emancipation of married women, contravene the common law, and the court will not unnecessarily extend the terms thereof by construction. (Post, pp. 426,427.) Cases cited and approved: Shipley v. Smith, 162 Ind., 526; Harrod v. Myers, 21 Ark., 592.
140 Tenn. 428Southern Ry. Co. v. Fisher (1918)
1. RAILROADS. Maintenance of nuisance. Operation of tracks. Test of liability. The true test of liability of a railroad company for the maintenance of a nuisance in the way of switch tracks is whether the company was acting in its private capacity, as distinguished from its public function, when operating the claimed nuisance. Post, pp. 434,435.) Case cited and approved: Louisville & N. Terminal Co. v. Jacobs, 109 Tenn., 727. Case cited and distinguished: Louisville & N. Terminal Co. v. Lellyett, 114 Tenn., 368. 2. RAILROADS. Maintenance of nuisance. Switchyards. A railroad company is liable to a neighboring landowner as for the maintenance of a nuisance in the operation of divisional switchyards not maintained in connection with station grounds, and the switching not being confined to the making and breaking up of trains, the yards being operated as part of the private functions of the railroad. (Post, pp. 435-437.) Cases cited and.approved: Matthias v. Minneapolis, etc., R. Co, 125 Minn., 224.
140 Tenn. 438Phoenix Cotton Oil Co. v. Royal Indemnity Co. (1918)
1. INSURANCE. Indemnity policy. Necessity of notice. Under policy indemnifying an employer against actions by employees for injuries requiring as condition precedent to liability of the insurer that immediate notice be given of the injury, the employer could not recover in the absence of such notice, notwithstanding no technical forfeiture was provided for in the policy. (Post, pp. 442444.) Acts cited and construed: Acts 1895, eh. 160, sec. 22. Cases cited and approved: Blackman v. Casualty Co., 117 Tenn., 578; Farr v. Travelers’ Insurance Co., MSS. Knoxville, 1905; Caldwell v. Insurance Co., 124 Tenn., 594; Manufacturing Co. v. Travelers’ Ins. Co., 171 Mass., 357; Rooney v. Casualty Co., 184 Mass., 26; McCord v. Masonic Casualty Co., 201 Mass., 473; Box v. Insurance Co., 170 Mo. App., 361; Travelers’ Ins. Co. v. Myers, 62 Ohio St., 529; Underwood Veneer Co. v. Ins. Co., 100 Wis., 378; Mining Co. v. Maryland Casualty Co., 36 Wash., 46. 2. INSURANCE. Indemnity policy. Immediate notice. Under policy indemnifying an employer against actions by employees for injuries requiring as condition precedent to liability of the insurer that immediate notice be given of the injury, the employer could not recover, in the absence of such notice, although notice was given the insurer as soon as the employer’s local agent and manager reported to the employer. (Post. pp. 444, 445. 3. INSURANCE. Indemnity policy. Notice. Effect of delay. Under policy indemnifying an employer against actions by employees for injuries requiring as condition precedent to liability of the insurer that immediate notice be given of the injury, the employer could not recover, in the absence of immediate notice, although the insurer was not injured by the delay. (Post, p. 445.
140 Tenn. 446Foster v. Jeffers (1918)
1. ESTOPPEL. Failure to assert title. Clerk and master. Where clerk and master reported land to belong to a decedent and sold it to satisfy latter’s debts, the clerk and master and those claiming under him are estopped from claiming land through title acquired by him before making of report. (Post, pp. 449, 450.) Cases cited and approved: Chapman v. Gates, 54 N. Y., 132; Simpson v. People’s Ice Mfg. Co., 44 La. Ann., 612. 2. ESTOPPEL. Official acts. Clerk and master. Failure to assert title. Estoppel of heirs. Where clerk and master reported property to belong to a decedent and sold it to satisfy latter’s debts, the clerk and master's heirs will be estopped from claiming the land through title acquired by him before making of report, although in making report and selling land he acted in an official capacity. (Post pp. 450-452.) Case cited and distinguished: American Paper Bag Co. v. Van Nortwick et ah, 52 Fed., 752. 3. TRUSTS. Undisclosed beneficiary. Innocent purchaser. Where a party contributes part of purchase money with which another party buys land, but permits latter to take deed in his own name with nothing to indicate land was impressed with any trust, a conveyance by latter to innocent purchaser passes both former and later’s interest in the land.- {Post, p. 452.) 4. ESTOPPEL. Trusts. Undisclosed beneficiary. Where a party contributes part of purchase money with which another party buys land, but permits latter to take deed in his own name with nothing to indicate land was impressed with any trust, an estoppel good against latter is good against former. {Post, p. 452.)
140 Tenn. 453Fine v. Lawless (1918)
1. COURTS. Appellate jurisdiction. Supreme court of Tennessee. Issue of fact. Where supreme court, having decreed injunction, was thereafter petitioned for relief against violation thereof, and defendants, answering petition, claimed plaintiffs had denuded themselves of right to injunction by a contract entered into pending the appeal of the case and before injunction was decreed, of which fact record was silent, an issue of fact was raised for determination by court of original jurisdiction, and on which the supreme court, having only appellate jurisdiction, could not pass. (Post, p. 455.) 2. APPEAL AND ERROR. Appellate jurisdiction. Tennessee supreme court. Record. The supreme court, exercising appellate jurisdiction of a case involving issue of fact, will look only to the record sent up from the inferior court. (Post, p. 455. 3. COURTS. “Appellate jurisdiction.” Matter of fact transpiring pending the appeal. The phrase “appellate jurisdiction” refutes any idea of framing and settling issues in a court of such jurisdiction in regard to a matter of fact transpiring pending the appeal. (Post, p. 455.) Cases cited and approved: Riggs v. White, 51 Tenn.,-503; Dodds v. Duncan, 80 Tenn., 731.
140 Tenn. 456Putnam v. Robertson (1917)
WILLS. Devises for widowhood. Remainders. A devise to widow for life, or widowhood, with provision should she marry then over to the daughter, is a gift for widowhood with remainder to the daugher, on the wife dying without remarrying, as well as on her remarrying; the event of not marrying being interwoven in the original gift. Cases cited and approved: In re Mason, 1 Chy., 695; In re Crane, 63 L. T. (N. S.), 746; Underhill v. Roden, 2 Chy., D494; Brown v. Hammond, Johns. U. C., 210; Jordan v. Holkham, Ambl., 209; Brown v. Cutter, T. Raym, 427; Maddox v. Yoe, 121 Md., 288; Aulick v. Wallace, 12 Bush, (Ky.), 531; Bates v. Webb, 8 Mass., 458; Ferson v. Dodge, 23 Pick. (Mass.), 287; Luxford v. Cheeko, 3 Leving, 125; Gordon v. Adolphus, 3 Bro. P. C., 306; Jobe v. Dillard, 104 Tenn., 658. Cases cited and distinguished: Eaton v. Hewitt, 2 Drew & Sm. 192; Meeds v. Wood, 19 Beav., 215; Sheffield v. Lord Orrery, 3 Atk., 285.
140 Tenn. 471McDonald v. Ledford (1917)
1. WILLS. Construction. Partial intestacy. Presumption. Applicability. The presumption against partial intestacy, codified by Thompson’s-Shannon’s Code, section 3927. is applicable when the words used, by any fair interpretation, will embrace the property not othei’-wise devised, unless a contrary intention appears from the context. (Post, pp. 474,475.) Case cited and approved: Oldham v. York, 99 Tenn., 68. Code cited and construed: Sec. 3927 (T.-S.). 2. WILLS. Construction. Words in preamble. In determining testator’s intention, to be ascertained from the whole will, words of the preamble may be considered. (Post, pp. 475-477.) ' Cases cited and approved: Lyon v. Safety Dep. & Trust Co., 120 Md., 514; Putnam v. Robertson, 205 S. W., 309. 3. WILLS. Rule of construction. Disinheritance. It is a rule of construction that an heir is not to be disinherited except by express words or necessary implication. (Post, pp. 477-480.) 4. WILLS. Rules of construction. Conflict. Intestacy and disinheritance. The rule of construction that an heir is not to be disinherited except by express words or necessary implication prevails, in case of conflict, over the rule that testator is presumed to have intended not to die partially intestate. (Post, pp. 477-480). 5. WILLS. Construction. Disinheritance. Ambiguity. There being at least ambiguity in the words referring to the property from which testatrix intended to exclude an heir, the heir should not be disinherited further than is clearly declared, and any doubt should be resolved in her favor. (Post, pp. 477-480.) Cases cited and approved: Bradford v. Leake, 124 Tenn., 312; Bradford v. Bradford, 6 Wharf. (Pa.), 244; Fox v. Fox, 102 Tenn., 77; Ridley v. Coleman, 33 Tenn., 616; Shaner v. Wilson, 207 Pa., 560; Watson v. Martin, 228 Pa., 248. Cases cited and distinguished: Rupp v. Eberly, 79 Pa., 141; Wilkins v. Allen, 18 How., 385; Doe v. Halloway, 2 Houst. (Del.), 527. 6. WILLS. Construction. Rejecting words. Disregarding, in will made before testatrix inherited most of her property, words of preamble stating desire to dispose of estate “accumulated by . . . toil of myself with . . . husband,” substantially repeated in clause giving “all” her property to son, and stating daughter had received of property so accumulated all testatrix desired, would violate rule against rejecting any which may reasonable be given effect. (Post, p. 480.) Case cited and approved: Evens v. Griscom, 42 N. J. Law, 579.
140 Tenn. 481Continental Ins. Co. v. Schulman (1917)
1. INSURANCE. Agents. Authority. Parol agreement to insure. Insurance agents supplied with policies executed in blank by .officers of the company with authority to negotiate insurance contract, agree upon premium rates and insurance terms, and to fill in and deliver such policies, may bind the company by a parol agreement to insure. (Post, p. 485.) 2. INSURANCE. Agents. Agreement to insure. Breach by agent. Where insurance agent, having implied authority to make preliminary contract to issue policy, commits breach of' such contract, the company is liable; the breach being within scope of agent’s authority. (Post, pp. 485, 486.) Cases cited and approved; Ellis v. Albany City Fire Ins. Co., 50 N. Y. 402; Angelí v. Hartford Fire Ins. Co., 59 N. Y., 171; San-born v. Fireman’s Ins. Co., 16 Gray (Mass.), 448; Sanford v. Orient Fire Ins. Co., 174 Mass., 416; Cockerill v. Cincinnati Mutual Ins. Co., 16 Ohio, 148; Benner v. Philadelphia Fire Ass’n, 229 Pa. 75. 3. APPEAL AND ERROR. Review. Verdict. Conflicting evidence. Supreme court is bound by jury’s verdict on conflicting evidence. (Post, pp. 486-488.) 4. INSURANCE. Agents. Authority to make parol contract of insurance. Construction of commission. Insurance agents’ commission, giving them authority “to countersign, issue and renew policies of insurance when signed by the officers of the company,” did not expressly authorize them to make parol contracts of insurance. (Post, pp. 488, 489.) Case cited and approved: Caldwell v. Insurance Co., 124 Tenn., 593. 5. INSURANCE. Validity of parol contract of insurance. A parol contract of insurance, in the absence of statutory inhibition, is valid. (Post, p. 490.) Cases cited and approved: Merchants’ Mutual Ins. Co. v. Lynam, 15 Wall., 664; Relief Fire Ins. Co. v. Shaw, 94 U. S., 574; Murphy v. So. Life Ins. Co., 62 Tenn., 440; Duluth Nat. Bank v. Knoxville Fire Ins. Co., 85 Tenn., 77; Aetna Life Ins. Co. .'. • Fallow, 110 Tenn., 720. 6. INSURANCE. “General Agents.” Authority. Insurance agents, designated “general agents,” are not by reason of such designation substitutes for their employer with authority to do anything the employer might have done but must act within apparent scope of their authority. (Post, pp. 490, 491.) Case cited and distinguished: Walker v. Skipwith, 19 Tenn., 502. 7. PRINCIPAL AND AGENT. Apparent authority. Custom. Where agent usually does certain things respecting his principal’s business or if similar agents in the same búsiness usually do like things, the doing of such things are within his apparent authority, regardless of actual or express authority. (Post, p. 492.) 8. PRINCIPAL AND AGENT. Apparent authority. Unusual acts. Where agent does a thing unusual or unheard of in his line of business, such thing Is apparently beyond scope of his authority (Post, p. 492.) 9. CORPORATIONS. Executive officer. Authority. Ahe apparent authority of a chief executive officer of a corporation is necssarily limited by the usage and practice obtaining in the particular line of business in which the corporation is engaged. (Post, pp. 492, 493.) 10.PRINCIPAL AND AGENT. Apparent authority. Traveling salesman. The authority of a traveling salesman is necessarily limited to the usage and practice of the particular line of business in which he is employed. (Post, pp. 492, 493.) Cases cited and approved: Bank v. Bank, 132 Tenn., 152; Nixon Mining Drill Co. v. Burk, 132 Tenn., 481; Somerville v. Gullett Gin Co., 137 Tenn., 509. 11. INSURANCE. Parol insurance contract. Authority of agents. Where it was customary for insurance agents to bind the company by parol contract of insurance for period between ap plication and agent’s first opportunity to write up policy, which period ordinarily did not extend beyond one or two days and never beyond a week, a parol contract for period of more than two months held beyond the agent’s apparent authority. (Post, pp. 493, 494.) 12. INSURANCE. Parol insurance. Policy of law. The policy of the law held to be against parol insurance under Thompson-Shannon Code, section 3274 et seq., relating to insurance. (Post, p. 494.) Code cited and construed: Sec. 3274 (T.-S.).
140 Tenn. 495Jackson v. Loyal Additional Ben. Ass'n (1917)
1. INSURANCE. Fraternal benefit insurance. Suicide. A nominated beneficiary of a life insurance policy or a benefit certificate containing no provision as to effect of suicide may recover where assured, being of sound mind, takes his own life, the insurance not being procured with intention of committing suicide, especially in view of Acts 1907, chapters 441, 457, and Acts 1913, chapter 44, section 8. (Post, pp. 497-503.) Acts cited and construed: Acts 1907, chs. 441, 457; Acts 1913, ch. 44, sec. 8. Cases cited and approved: Grand Legion v. Beatty, 224 Ill.,- 346; Campbell v. Supreme Conclave, 66 N. J. Law, 274; Patterson v. Natural Premium Mut. L. Ins. Co., 100 Wis., 118; Seiler v. Economic L. Ass’n, 105 Iowa, 87; Parker v. Des Moines Life Ass’n, 108 Iowa, 117; Mills v. Rebstock, 29 Minn., 380; Kerr v. Minn. Mutual Ben. Ass’n, 39 Minn., 174; Robson v. United Order of Foresters, 93 Minn., 24; Lange v. Royal Highlanders. 75 Neb , 188; Supreme Conclave v. Miles, 92 Md., 613; Arnold v. Insurance Co., 131 Tenn., 720; Knights of Pythias v. La Malta, 95 Tenn., 157; Silliman v. Insurance Co., 131 Tenn., 314; Simms v. Randall, 117 Tenn., 543. Cases cited and disapproved: Ritter v. Mutual L. Ins. Co., 169 U. S , 139; Davis v. Supreme Council Royal Arcanum, 195 Mass., 402; Shipman v. Protected Home Circle, 174 N. Y., 398; Security Life Ins. Co. v. Dillard, 117 Va., 401. 2. INSURANCE. Fraternal benefit insurance. By-Laws. By-law of a fraternal benefit society avoiding liability upon certificates on lives of members committing suicide, but not retrospective in its terms, does not apply to a certificate previously issued. (Post, pp. 503, 504.) Cases cited and approved: Heiskell v. Lowe, 126 Tenn., 475: Dugger v. Insurance Co., 95 Tenn., 245; Hardley v. Queen City Camp, etc., 1 Tenn. Ch. App., 413.
140 Tenn. 505Staub v. Sewanee Coal, Coke & Land Co. (1917)
1. CHAMPERTY AND MAINTENANCE. Dismissal of action. At common law, if a suit was founded upon a champertous contract, such suit would be dismissed upon the champerty appearing, but a suit would not be dismissed merely because there was a champertous contract with relation to its prosecution between the plaintiff and his attorney, or between the plaintiff and another layman. (Post, p. 509.) Acts cited and construed: Acts 1899, ch. 173. Cases cited and approved: Heaton v. Dennis, 103 Tenn., 155; Robertson v. Cayard, 111 Tenn., 356. Code cited and construed: Secs. 3171-3184; 1781-1789 (S.). 2. CHAMPERTY AND MAINTENANCE. Dismissal of suit. Since the passage of Acts 1899, chapter 173, a suit will not be dismissed by reason of a champertous contract between the plaintiff and his attorney or a third person. (Post, p. 509.) 3. EJECTMENT. Measure of damages. In an ejectment suit, where there was a real contest as to title to coal lands, but defendant continued to mine coal in disregard of an injunction, complainant was properly allowed to recover the value of the coal at the tipple, less the cost of mining. (Post, pp. 510-512.) Cases cited and approved: Dougherty v. Chesnutt, 86 Tenn., 1; Coal Creek, etc., Co. v. Moses, 83 Tenn., 300; Ross w Scott & Russell, 83 Tenn., 479. 4. EJECTMENT. Improvements. Right to allowance for. In ejectment, where plaintiff prevailed defendant was not entitled to credit by way of improvements for a railroad track built on a right of way previously donated by plaintiff to a railroad; such right of way not being plaintiff’s property. (Post, p. 512.) 5. APPEAL AND ERROR. Law of the case. Questions determined on appeal are res adjudicata on a subsequent appeal. (Post, p. 512.)
140 Tenn. 513State ex rel. Stewart v. Follis (1917)
1. COUNTIES. State Revenue Agent. Authority. “Charged.” Acts 1907, chapter 602, sections 71, 77, confer on State revenue agents power of investigating the State of any trustee’s official accounts, whether in office or out, for the purpose of ascertaining whether he has duly collected and accounted for State and county revenue, the word “charged” as used in the later section meaning charged at the time the default or failure of duty occurred. (Post, pp. 516-518.) Acts cited and construed: Acts 1907, ch. 602, secs. 71, 77. 2. STATUTES. Construction. Sections 71 and 77 of Acts 1907, chapter 602, must be construed together, since the latter section creates the office of state revenue agent and, in the main, defines his duties, while the former also imposes duties. (Post, pp. 516-518.) 3. COUNTIES. Joint and several liability of surety. In bill by State revenue agent against a former county trustee and a part of sureties on his official bond, defendant sureties cannot complain that certain of their cosureties, although mentioned in the bill, were not made defendants, since, under Shannon’s Code, section 4486, all joint obligations are made joint and several. (Post, pp. 518, 519.) Acts cited and construed: Acts 1789, ch. 57, sec. 5. Cases cited and approved: Voochies v. Dickson, 33 Tenn., 348; Prowell v. Fowlkes, 64 Tenn., 649; Rice v. Kirkman, 22 Tenn., 415; Gibson v. Martin, 26 Tenn., 127; Derrick v. State, 71 Tenn., 396; Garrison v. Hollins, 70 Tenn., 684, 685. Codes cited and construed: Sec. 4486 (S.). 4. EVIDENCE. Secondary evidence. Report of accountants. Since it would have been wholly impracticable to conduct an investigation as to condition of accounts of defendant county trustee in open court, or in the master’s office, a written report of accountants, appointed to investigate and report upon condition of accounts of defendant, were competent evidence, although not conclusive. (Post, pp. 519-522.) Cases cited and approved: Burton v. Driggs, 20 Wall., 125; Cul-ver v. Marks, 122 Ind., 554. 5. EVIDENCE. Documentary evidence. Authentication. Where an unidentified part of report of condition of accounts of defendant county trustee was made by persons who were not examined, and the witnesses examined made no test of such work, the whole report must be excluded. (Post, pp. 522-524.) Case cited and disapproved: National Bank v. First Nat. Bank, 108 Tenn., 374. 6. EVIDENCE. Report of accountants. Admissibility. That county had no power to make an appropriation for an investigation of the condition of accounts of defendant county trustee would not make inadmissible report of accountants appointed by county. (Post, pp. 524, 625.) Cases cited and approved: State ex rel. v. Pollard, MS., Nashville, Dec., 1916. 7. COUNTIES. Action against 'trustee. Since deputy revenue agent was on the ground, looked over report of condition of accounts of defendant county trustee made by accountants appointed by county, and was satisfied with it, contention that report was incompetent because investigation was not made personally by revenue agent, or his deputy in accordance with Acts 1907, chapter 602, as to investigation by revenue agent preliminary to suit, is without merit. (Post, p. 525.) Acts cited and construed: Acts 1907, ch. 602. 8. COUNTIES. Suit against trustee. Pleading.' In suit against county trustee and sureties on his official bond for amounts alleged to be due State and county, bill containing only general allegations of indebtedness, without specifying errors in settlements made by trustee, pursuant to Acts 1907, chapter 602, sections 68-70, 76, or allegations that such settlements had not been made, held, insufficient to warrant relief; defect having been seasonably taken advantage of by answer setting up such settlements. (Post, pp. 526-533.) Acts cited and construed: Acts 1907, ch. 602, secs. 68-70, 76. Cases cited and approved: State v. Buchanan, 52 S. W., 493; State v. Jefferson Turnpike Co., 22 Tenn., 305; State v. Hamilton et. al., 30 Tenn., 47. 9. ACCOUNT STATED. Pleading. Where complainant flies a bill for a general account, and defendant sets forth a stated one, complainant must amend his bill, and by amendment surcharge and falsify the stated account. (Post, pp. 533, 534.) 10. PLEADING-. Public records. Accounts made by defendant county trustee, pursuant to Acts 1907, chapter 602, sections 68-70, 76, being of public record, held, set out with sufficient particularity in defendant’s answer. (Post, pp. 533, 534.)
140 Tenn. 535Frank v. Wright (1917)
1. MASTER AND SERVANT. Tort of servant. Action in course of Employment. Presumption. Chauffer may he presumed prima-facie to have been acting in course of his employment, where it appears, not only that master was owner of automobile, but also that car was being used as it was normally used in connection with master’s business. (Post, pp. 538-541.) 2. EVIDENCE. Acceptance of testimony. Discredit or impeachment. Ordinarily testimony of witness, who is not contradicted, ini-peached, or discredited, must be accepted as true. (Post, pp. 541, 542.) 3. TRIAL. Credibility of witness. If a witness be discredited or impeached, fact may not be treated as established as a matter of law, or for purposes of motion for peremptory instructions. (Post, pp. 641, 542.) 4. MASTER AND SERVANT. Injuries by servant. Evidence on material point. In action against automobile owner for a death, where declaration averred chauffer was unfit and reckless, and so known to be by defendant owner, owner’s testimony, denying knowledge of previous reckless driving by the chauffeur, was not evidence upon an immaterial point. (Post, p. 542.) 5. EVIDENCE. Rejection of testimony. “Impeaching.” Jury may reject uncontradicted testimony of witness on any kind of attack, though not reaching legal requirement of testimony impeaching his veracity; “impeaching” strictly meaning an attack by character evidence against general credit for veracity, and also meaning discrediting the witness by other modes. (Post, p. 542.) 6. WITNESSES. Discredit. As tending to discredit witness, jury may consider improbability of his statements of fact as compared with ordinary nature of things, his cross-examination, his ability and willingness to speak the truth, and other criteria. (Post, pp. 542, 543.) Cases cited and approved: Richmond v. Richmond, 18 Tenn., 345, Wilcox v. State, 50 Tenn., 117. 7. APPEAL AND ERROR. Capricious disregard of testimony. Appellate courts, without sufficient reason, will not permit uncon-tradicted testimony of a witness to be discarded or disregarded arbitrarily or capriciously. (Post, pp. 543, 544.) 8. MASTER AND SERVANT. Scope of employment. Declaration of agent. Mere declaration of chauffeur, whose driving killed plaintiff’s decedent, that he was on a mission for defendant, his employer, was incompetent to establish his agency in making the trip. (Post, pp. 544, 545.) 9. EVIDENCE. Declaration of servant. Narrative of past occurrence. The act done by a servant cannot be qualified or explained by his declaration, amounting to no more than a mere narrative of a past occurrence; he being unauthorized so to bind his master. (Post, p. 545.) 10. EVIDENCE. Declarations of agent. Admissibility in corroboration. Res gestae. Though declarations of alleged agent are of themselves incompetent to prove agency, if agency is otherwise prima-facie proved, they become admissible in corroboration, where they constitute part of the res gestae, and were made at the time of the transaction. (Post, p. 545.) 11. EVIDENCE. Declaration of agent. Res gestae. Declaration of negro chauffeur, ten or fifteen minutes after he had struck boy in street, that he was on mission for employer, was not admissible in suit against employer for death, as part of the res gestae, to show automobile was operated in employer’s business. (Post, p. 546.) 12. EVIDENCE. “Presumptions of fact.” Proof. “Presumptions of fact” being deductions drawn from particular facts or circumstances proved, raised to take the place of proof, where proofs are present, there is neither foundation nor room for presumption. (Post, pp. 546-548.) 13. APPEAL AND ERROR. Prejudicial error. Evidence. Statute. Reception of chauffeur’s inadmissible declaration that, when he struck hoy, he was on mission for employer, held prejudicial error, calling for reversal, notwithstanding Thompson Shannon Code, section 4902al, though a presumption of his having acted for his employer arose from facts. (Post. pp. 546-548.) Lansdest, J., dissenting in part. Acts cited and construed: Acts 1911, ch. 32. Cases cited and approved: Keller v. Over, 136 Pa., 1; Galpin v. Page, 18 Wall., 350. Code cited and construed: Sec. 4902al (T.-S.).
140 Tenn. 549Gill v. McKinney (1918)
1. DEEDS. Validity. Designation of Grantee. Where vendor accepted cash payment on land and, at request of agent for both parties, signed deed to the grantees paying the consideration, which deed had been prepared by the agent, it was immaterial whether vendor knew the exact names - of grantees or not, since she clearly intended to convey to the customers produced by the agent. {Post, p. 553.) 2. DEEDS. Delivery. There was a delivery of a deed to grantee, although not actually delivered into her hands, where it was treated as delivered by all, parties in interest, and was registered by a common agent with consent of- all. {Post, p. 553, 554.) Cases cited and approved: McEwen & Thompkins v. Bamberger, 71 Tenn., 581; Ewen v. Troost, 33 Tenn., 186; Nichol v. Davidson County, 3 Tenn. Ch., 547. 3. DEEDS. Alterations of instruments. Where deed to husband and wife had been delivered, the subsequent erasing of the wife’s name from the deed had no effect on her title. (Post, pp. 554-558.) 4. ESTOPPEL. Permitting sale of property. Where property was conveyed to husband and wife, who gave notes for the balance due thereon, and the husband, after separation from the wife, induced a third person to take over the land and assume his obligation, the wife’s name being erased from the deed, the husband was estopped to deny the third person’s title, and the latter would be entitled to the husband’s interest in the land. (Post, pp. 554-558.) Cases cited and approved: Huffman v. Huffman, 69 Tenn., 491; Howard v. Huffman, 40 Tenn., 563; Gates v. Card, 93 Tenn., 334. Case cited and distinguished: Ames v. Norman, 36 Tenn., 683. 5. HUSBAND AND WIFE. Estates by the entireties abolished. Public Acts 1913, chapter 26, emancipating married women, abolished estates by the entireties, and deed of land to husband and wife created tenancy in common; joint tenancy having been abolished by Thompson-Shannon Code, section 3677. (Post, pp. 558, 559.) 6.' COURTS. Stare decisis. Constitutional questions. A prior decision of the supreme court that an act is constitutional and contains but one subject is controlling. (Post, pp. 559-56i.) Acts cited and construed: Acts 1913, ch. 26. Cases cited and approved: Parlow V. Turner, 132 Tenn., 339; Railroad v. Byrne, 119 Tenn., 278; Lillienkamp v. Rippetoe, 133 Tenn., 57; Bennett v. Hutchens, 133 Tenn., 65; Knoxville, etc., y. Yangilder, 132 Tenn., 487; Chattanooga v. Carter, 132 Tenn., 609; Baker v. Dew, 133 Tenn., 126; Bailey v. Apper-son, 134 Tenn., 716; Mclrvin v. Lincoln Memorial University, 138 Tenn., 260; Gould v. Frost, 138 Tenn., 467. Code cited and construed: Sec. 3677 (T.-S.). 7. STATUTES. Title. Constitutionality. It is no objection to act that its body contains one general subject, if title is single and covers body. (Post, pp. 559-561.)
140 Tenn. 563Peck-Williamson Heating & Ventilating Co. v. McKnight & Merz (1918)
1. COURTS. Federal decisions as authority. Whether a transaction hy a foreign corporation is interstate commerce, as distinguished from doing business in the State, is a federal question, on which decisions hy the federal supreme court must he followed hy the State courts. (Post, pp. 575-578.) 2. COMMERCE. Interstate commerce. Sales. “Doing business. ” A foreign corporation did business within the State, as distinguished from interstate commerce, where it furnished and installed a heating plant, which was not so complicated that it had to be installed by the corporation, the installation representing forty-two per cent, of the cost. (Post, pp. 575-578.) 3. CORPORATIONS. Foreign corporations. Doing business. A foreign corporation, which furnished and installed a heating plant, which was not so complicated that the corporation had to install it, did business in the state. (Post, p. 578.) Cases cited and approved: Browning y. Way cross, 233 U. S., 16; Palm Vacuum Cleaner Go. v. Bjornstad, 136 Minn., 38; Milan Milling Co. y. Gorten, 93 Tenn., 590; General Railway Signal Co. v. Virginia, 246 U. S., 500; Amusement Co. v. Albert, 128 Tenn., 417. 4. CONTRACTS. Performance. “Satisfactory.” Where one in whose favor the term “satisfactory” was used in a contract insisted on its use, he had the right to determine whether the work done was satisfactory, and his determination could not be said to be capricious, where he added other work to make it satisfactory. (Post, pp. 578, 579.) 5. CONTRACTS. Performance. Where a test for ventilation to ascertain whether a heating plant was satisfactory to the property owner might have been made by the use of an anemometer, but was not made, his right to resist payment because work was not satisfactory was waived. (.Post, pp. 579, 580.) 6. CORPORATIONS. Foreign corporations. Contract. Where a contract by a foreign corporation was unenforceable, because it was illegally doing business in the State, a new contract, to add features to cover deficiencies in the design. of the work done, was also invalid. (Post, p. 580.) Cases cited and approved: Cary-Lombard Lumber Co. v. Thomas, 92 Tenn., 692; Cunnyngham v. Shelby, 136 Tenn., 178. 7. CORPORATIONS. Foreign corporations. Contracts. A contract by a foreign corporation illegally doing business in the State is void' on the ground of public policy, and is incapable of ratification or estoppel by the conduct of the other party. (Post, pp. 580, 581.) Cases cited and approved: Singer Mfg. Co. v. Draper & Looney, 103 Tenn., 262; Wright v. Jackson Construction Co., 138 Tenn., 145; Reed v. Johnson, 27 Wash., 42.
140 Tenn. 582Kizer v. State (1918)
1. STATUTES. Title. Construction. Constitution 1870, article 2, section 17, providing that no bill shall become a law which embraces more than one subject to he expressed in the title, should he liberally construed. (Post, p. 588.) Acts cited and construed: Acts 1917, ch. 12. Cases cited and approved: Railroad v. Crider, 91 Tenn., 489; Railroad v. Byrne, 119 Tenn., 287. Constitution cited and construed: Art. 2, sec. 17 (1870). 2. CONSTITUTIONAL LAW. Titles of statutes. Construction. The rule that every intendment is in favor of the constitutionality of a statute, and that every doubt must be solved in its favor, is applicable in the interpretation of titles. (Post, pp. 588, 589.) Cases cited and approved: Truss v. State, 81 Tenn., 213; Railroad v. Byrne, 119 Tenn., 287. 3. STATUTES. Titles. Construction. “Subject.” “Provision.” Where different provisions of the title and' statute refer directly to a single subject and have a connection with and are not foreign to that subject and are not unrelated to one another, there is no violation of Constitution 1870, article 2, section 17, relating to titles of statutes; “subject” not being synonymous with “provision.” (Post, pp. 589-591.) Cases cited and approved: State ex rel. v. Pickle, 71 Tenn., 79; State v. McMinnville, 106 Tenn., 384; Samuelson v. State, 11G Tenn., 470; State v. Cumberland Club, 136 Tenn., 84; School . Dist. v. Hall, 113 U. S., 135; James Clark Distilling Co. v. Western Maryland R. Co., 242 U. S., 311. Cases cited and distinguished: State v. Brown, 103 Tenn., 448; Montclair v. Ramsdell, 107 U. S., 147. Constitution cited and construed; Art. 2, sec. 17 (1870). 4. STATUTES. Title. The object of Acts 1917, chapter 12, being to make more effective the prohibition laws of the State, it is not unconstitutional as violating Constitution 1870, article 2, section 17, relating to titles of statutes. (.Post, pp. 591, 592.) Case cited and distinguished: Crane v. Campbell, 245 U. S., 304. 5. CONSTITUTIONAL LAW. Intoxicating liquors. Law of the land. Transportation of liquor. Statutes. Acts 1917, chapter 12, section 4, relating to transportation by a person of intoxicating liquors intended for his own use, is not in violation of Constitution article 1, section 8, providing that no person shall be disseized of his liberty or privileges otherwise than by the law of the land. (Post, pp. 692, 593.) Acts cited and construed: Acts 1917, ch. 12, sec. 4. Constitution cited and construed: Art. 1, sec. 8. 6. INTOXICATING LIQUORS. Transportation. Statutes. Acts 1917, chapter 12, section 4, does not confine the personal transportation into the State or between points within the State of intoxicating liquor to liquors which have been received from a common or other carrier. (Post, p. 593.) Case cited and approved: Palmer v. Express Co., 129 Tenn., 116. 7. INTOXICATING LIQUORS. Transportation. Statutes. “From one point to another.” Acts 1917, chapter 12, section 4, forbidding the transportation of intoxicating liquor into the State or from one point to another within the State, contemplates nothing less than the transporting from one premise to another and does not forbid a movement of liquors by a person within the limits of his own premises or in hi? own house. (Post, pp. 593-595.) Case cited and approved: St¿te v. Rhodes, 90 Iowa, 496. Case cited and distinguished: Com. v. Waters, 77 Mass., 81. 8. INTOXICATING LIQUORS. Transportation. Statutes. “Common or other carrier.” Acts 1917, chapter 12, making it unlawful to receive intoxicating liquors from a common or other carrier or to possess liquors so received, is not confined to carriers for hire, but was intended to cover every phase of the handling of intoxicants except as otherwise indicated in the statute. (Post, pp. 595, 596.) Case cited and approved: Hendry v. State, 93 S. E., 413. 9. INTOXICATING LIQUORS. Transportation. Statutes. Sacramental wines. Under Acts ..1917, chapter 12, section 5, subsection 1, making it lawful for any common carrier or other carrier to .transport wines for sacramental purposes to any priest or minister, a sexton of a church or communicant may convey either for or without hire wine to the priest or minister. (Post, pp. 596, 597 i 10. INTOXICATING LIQUORS. Transportation. Statutes. “Personal use.” ' Acts 1917, chapter 12, section 4, forbidding the transportation of intoxicating liquors, includes transportation for the personal use of the transporter; the words “personal use” referring to the individual carrying the liquor. (Post, pp. 597-599.) Acts cited and construed: Acts 1917, ch. 12, sec. 4, 5. Case cited and approved: Bird v. State, 131 Tenn., 618. 11. INDICTMENT AND INFORMATION. Duplicity. Transportation of liquor. In a prosecution for transporting intoxicating liquors in violation of Acts 1917, chapter 12, section 4, a presentment that accused “did transport into the State, . . . and from some , point in said State unknown to the grand jurors to or near M.,” a certain quantity of intoxicating liquor, was not bad; it being permissible to charge accused in the same count con-junctively with transporting whisky into the State and from one point to another within the State in view of Thompson’s-Shannon’s Code, section 7084, this being but a single transaction. (Post, p. 599.) Case cited and approved: Griffin v. State, 109 Tenn., 17: Code cited and construed: Sec. 7084 (T.-S.). 12. INDICTMENT AND INFORMATION. Matters unknown to grand jury. A presentment under Acts 1917, chapter 12, section 4, need not specify the place where the transportation began when such place is unknown to the grand jurors. (Post, pp. 599, 600.) Cases cited and approved: State v. Ferriss, 71 Tenn., 701; State v. Kelly, 138 Tenn., 84; Com. v. Hutchinson, 6 Allen (Mass.), 595. 13. INTOXICATING LIQUORS. Transportation. Indictment. A presentment for transporting intoxicating liquor in violation of Acts 1917, chapter 12, section 4, is not bad because it omits the word “personally” in describing the transporting in view of Thompson’s-Shannon’s Code, section 7080, and Acts 1911, chapter 32. (Post, p. 600.) Acts cited and construed: Acts 1911, ch. 32; Acts 1917, ch. 12, see. 4. Code cited and construed: Sec. 7080. 14. INTOXICATING LIQUORS. “Transportation.” A carrying of intoxicating liquors from a train to the depot platform is a “transportation” within Acts 1917, chapter 12, section 4. (Post, pp. 600, 601.)
140 Tenn. 602Taylor v. Elgin (1918)
1. MORTGAGES. Mortgage distinguished from sale. Where a mortgage was foreclosed, and the property purchased at the foreclosure sale for mortgagor’s benefit, under an oral agreement that mortgagor might redeem within reasonable time at price bid and ten per cent, profit, together with an attorney’s fee, or that the property might be resold, the balance, after deducting price bid, the profit, and the fee, to be paid over to mortgagor, the transaction constituted a mortgage and not a sale with liberty of repurchase. (Post, pp. 615, 616.) Cases cited and approved: Bennet v. Holt, 10 Tenn., 6; Scott v. Britton, 10 Tenn., 215; Lowry v. McGhee, 16 Tenn., 242; Hickman v. Cantrell, 17 Tenn., 183; Ballard v. Jones, 25 Tenn., 455; Ehert v. Chapman, 67 Tenn., 27; Blizzard v. Craigmiles, 75 Tenn., 693; Bowman v. Pelts, 42 S. W., 810; McGan v. Marshall, 26 Tenn., 121; Krelinger v. New Patagonia, etc., 6 British Ruling Cas., 394; Haywood v. Ensley, 27 Tenn., 460. 2. MORTGAGES. Poreclosure. ' Redemption. Interest. Where land was purchased at foreclosure sale for the benefit of the mortgagor under an agreement to allow him to redeem, on an accounting by the purchaser, an allowance of ten per cent, interest on the sum advanced in accordance with the agreement was properly refused; defendant being entitled only to six per centum. (Post, pp. 616, 617.) 3. MORTGAGES. Foreclosure. Redemption. Attorney’s fees. Where property was purchased at foreclosure sale for the mortgagor’s benefit, under an agreement to allow him to redeem, an allowance- of $750 attorney’s fees, according to the agreement of the parties, was properly refused, where no services were performed for which tbie charge could be made. (Post, pp. 61C, 617.) 4. MORTGAGES. Foreclosure. Redemption. Expenditures. 'Where property purchased at foreclosure sale under an agreement for the mortgagor’s benefit, whereby a resale was allowed, a commission to a broker effecting the resale was properly allowed, in an action against the first purchaser for an accounting. (Post, pp. 616, 617.) 5. APPEAL AND ERROR. Assignment of errors. Matters not contained in assignment of errors by appellee are not rendered reyiewable by general discussion or even particular objection made later in the general argument accompanying the assignment of errors. (Post, pp. 617-622.)
140 Tenn. 623Hurt v. Yazoo & M. V. R. (1918)
1. RAILROADS. Highway crossings. Warning signs. Repeal of statute. Private Acts 1913, chapter 32, section 8, conferring on a hoard of county commissioners vested with the jurisdiction of roads of every class, by Private Acts 1911, chapter 237, full power to regulate railroad crossings, and to require railroad companies, at their own expense, to grade and provide safeguards and regulations as to such crossings, repeals Shannon’s Code, sections 1574-1576, requiring road overseers to place warning signs at crossings at the county’s expense. {Post, pp. 630-635.) Acts cited and construed: Acts 1913, ch. 32, sec. 8. Acts 1883, ch. 167; Acts 1893, ch. 177; Acts 1895, ch. 74; Acts 1903, ch. 365; Acts 1905, ch. 74; Acts 1907, ch. 370; Acts 1909, ch. 499; Priv. Acts 1911, ch. 237. Oases cited and approved: Whittaker v.. Railroad, 132 Tenn., 576; Prescott v. Duncan, 126 Tenn., 106. Case cited and distinguished: Graves v. Railroad, 126 Tenn., 148. Code cited and construed: Secs. 1574, 1575, 1576 (S.). 2. STATUTES. Repeal by implication. Conflicting laws. Though repeals by implication are not favored, when two conflicting statutes prescribe different and inconsistent rules of action about the same thing the latter must prevail. {Post, p. 635.) Cases cited and approved: Frazier v. Railroad, 88 Tenn., 183; Monroe County v. Hudson, 90 Tenn., 741; Fisher v. Baldridge, 91 Tenn., 418; Lowry v. Railway, 117 Tenn., 515; Durham v. State, 89 Tenn., 723; Coal Co. v. Steel Co., 123 Tenn., 428; Con-don v. Maloney, 108 Tenn., 82; Archibald v. Clark, 112 Tenn., 534; Murphy v. State, 114 Term., 533; Hall v. State, 124 Tenn., 239. 3. EVIDENCE. Judicial notice. Development of railroads. The supreme court knows, as a matter of history, that when the provisions of the Code were made the steam railroad had not been developed to the present high state of perfection, and that wood fire engines made much less speed than they do now. (Post, p. 636.) 4. RAILROADS. Highway crossings. Warnings at. Legislative regulation. The legislature has complete power, as a proper police regulation, to prescribe the manner of giving warning at crossings. (Post, p. 636.) 5. EVIDENCE. Judicial notice. Populous locality. The supreme court judicially know that the environs of Memphis are thickly populated. (Post, p. 636.) 6. EVIDENCE. Judicial notice. Travel. The supreme court judicially know that there is much travel on the county roads. (Post, p. 636.) 7. RAILROADS. Negligence at highway crossing. Liability in absence of statute. In absence of statute, the common-law liability of a railroad for negligence at highway crossings prevails, and it must give proper warning of the approach of trains. (Post, pp. 636-638 ) 8. RAILROADS. Collision at highway crossing. Contributory negligence. Question for jury. In a case of injuries at a crossing due to collision of a train with an automobile, the driver of which did not stop, look, and listen for the train which gave no warning of its approach,, contributory negligence held for the jury. (Post, pp. 638-641.) 9. RAILROADS. Collision at highway crossing.. Rule as to negligence. The rule applying as to negligence of the parties in ease of collision between a vehicle and a train at a highway crossing is whether they were in the exercise of ordinary care and prudence at the time of the accident. (Post, p. 641.) 10. RAILROADS. Crossing track. Application of look and listen rule. In ttie case of crossing a railroad track, the look and listen rule is the proper measure of duty under ordinary circumstances, but circumstances may exist making the rule inapplicable. (Post, pp. 641-644.) Cases cited and approved: Railroad v. Parks, 136 Tenn., 370; Railroad v. McMillan, 134 Tenn., 514; Railroad v. Morgan, 132 Tenn., 17; Railway Co. v. Roe, 118 Tenn., 601; Railroad Co. v. i Dies, 98 Tenn., 662; Railroad Co. v. Howard, 90 Tenn., 150; Railroad Co. v. Foster, 88 Tenn., 672; Patton v. Railway, 89 Tenn., 378. 11. NEGLIGENCE. Negligence of driver of vehicle imputable to occupant. Negligence of a doctor in driving an automobile could not be imputed to his partner, equally negligent, whom he assisted in an operation in the success of which both were interested, and carried as his guest to the patient’s residence. (Post, p. 644.) 12. RAILROADS. Accident at crossing. Contributory negligence. Person riding with another. ■ One riding with another driving an automobile over a railroad crossing must exercise, due care for his own safety by looking and listening, whether he is a guest or otherwise. (Post, pp 644, 645.) Cases cited and approved; Knoxville Ry. & Light Co. v. Vangilder, 132 Tenn., 487; Dale v. Tramway Co., 173 Fed., 787; Wash v. B. & O. R. R. Co., 233 Pa., 465; Brommer v. Pa. R. R. Co., 179 ■Fed., 577; Dickinson v. Erie R. R. Co., 37 L. R. A. (N. S.), 150. 13. RAILROADS. Contributory negligence. Persons in automobile. The fact that persons injured in a collision at a crossing were in an automobile does not change the rule of ordinary care for their own safety at the timé of the accident, but is a circumstance for consideration in determining the standard of care which must govern them and the degree of care they must exercise. (Post, pp. 645-647.) 14. APPEAL AND ERROR. Review. Verdict. Approval of trial court. Where, notwithstanding the verdict for plaintiffs in a personal injury case, there was judgment for defendant, the verdict cannot be approved on appeal, when it appears that the trial judge was dissatisfied therewith because he believed the law and facts were against plaintiffs. (Post, p. 647.) Case cited and approved: Hamburger v. Railroad, 138 Tenn., 123.