142 Tenn.

Volume 142 — Tennessee Reports

62 opinions

142 Tenn. 1Southern Railway Co. v. Owen (1919)
1. RAILROADS. No liability for killing stock merely because engine was reversed. In an action for killing a colt on a public road crossing, where engineer testified • be was on the lookout, it was error to instruct the jury to find for plaintiff, if they found that the engine of the train was being operated backward, with the tender ahead, contrary to Shannon’s Code, sections 1574-1576, and that the only question after such determination was the amount of damages. (Post, pp. 1-5.) Cases cited and approved: Railroad v. Dies, 98 Tenn., 655; Railroad Co. v. Wilson, 90 Tenn., 271; Railroad v. Smith, 53 Tenn., 174; Western & Atlantic R. Co. v. Roherson, 61 Fed., 592; Byrne v. K. C., Ft. S. & M. R. Co., 61 Fed., 605; Railroad Co. v. Acuff, 92 Tenn., 34; Railroad v. Pugh, 95 Tenn., 421; Railroad v. Martin, 113 Tenn., 287; Railway Co. v. Lovejoy, 138 Tenn., 494. Case cited and distinguished: Southern Railway Co. v. Simpson, 131 Fed., 705. Code cited and construed: Secs. 1574-1576 (S.). 2. RAILROADS. No liability for killing of stock merely because engine was reversed. In an action for killing a colt on a public road crossing it was error to refuse railroad’s requested instruction that if the colt came upon the track immediately in front of the hacking tender of the engine, and so near that no means could be taken to stop the train and avoid the accident, the engineer being on the lookout, and the appearance of the colt being so sudden that he could not have seen it in time, then the railroad was not liable merely because its engine was running reversed, contrary to Shanon’s Code, sections 1574-1675. (Post, pp. 5-13). Lansden, C. J., and McKinney, J., dissenting.
142 Tenn. 14Gunter v. Seaboard Copper Mining Co. (1919)
CONTEMPT. No appea lies from acquittal. Where defendants in suit to enjoin depredations on land were discharged in complainant’s contempt proceedings against them for violation of the temporary injunction, complainant could not appeal to the court of civil appeals; contempt proceedings being in their nature criminal, and no appeal from an acquittal lying. Cases cited and distinguished: Craig v. McCulloch, 20 W. Va., 148; Commonwealth v. Richardson, 136 Ky., 699; People ex rel.. v. Ann Arbor R. R. Co., 137 Mich., 673; Graham v. Williamson, 128 Tenn., 722.
142 Tenn. 20Dodge v. Nashville, C. & St. L. Ry. Co. (1919)
1. BAILMENT. “Ordinary care’’ required of hailee for hire. A hailee for hire is required to exercise only “ordinary care” in keeping and caring for property deposited with him that care which a capable and reasonably prudent person, engaged in the same business, is accustomed to exercise. (Post, pp. 26-28.) Cases cited and approved: Terry v. So. Ry., 81 S. C., 279; Piedmont Mfg. Co. v. Columbia & C. R. Co., 19 S. C., 353; Dunbar v. Port Royal & A. R. Co., 36 S. C., 110; Hill v. Georgia, C. & N. R. Co., 43 S. C., 462. Cases cited and distinguished: Swift & Co. v. Memphis, etc., Co., 128 Tehn., 82; Healy v. New York Central & H. R. R. Co., 153 App. Div., 516. 2. BAILMENT. Limitation of liability for goods in railroad check rooms. In the absence of notice of a stipulation printed upon check given him limiting the liability of the railroad, one checking a parcel at a railroad checking room is not bound by such limit, where the goods are negligently lost, not being chargeable by merely receiving the numbered check with notice of such printed stipulation. (Post, pp. 28, 29.) 3. BAILMENT. Liability of railroad for loss of parcel in check room. In receiving baggage for deposit at a check room in a station, a railroad holds itself out as a bailee for hire and is liable for negligent loss of a parcel checked. (Post, p. 30.)
142 Tenn. 31Howell v. Howell (1919)
1. FRAUDULENT CONVEYANCES. Right of seller violating Bulk Sales Act against buyer's vendee. One violating the Bulk Sales Act cannot recover from one who purchased the property from his buyer without complying with such act, by reason of having been required to pay debts owing by the business which the first purchaser assumed but did not pay. (Post, pp. 31-33.) Case cited and distinguished: Cantrell v. Ring, 125 Tenn., 472. 2. PARTNERSHIP. Right of individual creditors. Partnership creditors have to be paid before individual creditors of the partners can reach the partnership property. (Post, pp. 33-36.) 3. PARTNERSHIP. Enforcement of rights of individual creditors. In order for individual creditors of partners to subject partnership property to payment of their claims, they must proceed in equity. (Post, pp. 33-36.) 4. FRAUDULENT CONVEYANCES. Sale by partner in violation of Bulk Sales Law. A sale by one partner to another of his half interest in a stock of merchandise is a sale otherwise than in the ordinary course of trade and is fraudulent and void, unless the Bulk Sales Law is complied with. (Post, pp. 33-36.) Acts cited and construed: Acts 1901, ch. 133. Cases cited and approved: Taylor v. Folds, 2 Ga. App., 453; Fair field Shoe Co. v. Olds, 176 Ind., 526; Yancey v. Lamar-Bankin Drug Co., 140 Ga., 359. Cases cited and distinguished: Thomas E. Daly v. Sumpter Drug Co., 127 Tenn., 412; Hannah v. Richter Brewing Co., 149 Mich., 220.
142 Tenn. 37Reeder v. Trotter (1919)
1. PARLIAMENTARY LAW. Presiding officer entited to vote as i .member. Where the presiding-officer is a member of the body, and, as such member, entitled to vote with the. other members, the fact that he was chosen to act as presiding officer will not deprive him of the privilege. (Post, pp. 41-44.) Acts cited and construed: Acts 1919, ch. 736; Acts 1887, ch. 148. Cases cited and approved: People v. Church of Atonement, 48 Barb. (N. Y.), 606; Grown v. Foster, 88 Me., 49; Wooster v. Mullins, 64 Conn., 340. Cases cited and distinguished: -People ex rel. v. Rector, etc., 48 Barb. (N. Y.), 603; Jacobs v. San Francisco, 100 Cal., 121; Cate v. Martin, 70 N. H., 135. Codes cited and construed: Secs. 493, 5592, 6015 (S..). 2. COUNTIES. County judge may not vote in matters before county court. ■In view of Shannon’s Cpde, sections 493, 5992, 6015, a county judge, -whose office was created by Acts .1887, chapter 148, has no right to vote on matters before county court, even when there is a tie vote. (Post, pp. 44. 45.) 3. COUNTIES. County judge may not vote to issue courthouse bonds. In view of Shannon’s Code, sections 493, 5992, 6015, a county judge, whose office was created by Acts 1887, chapter 148, cannot vote under Priv. Acts 1919, chapter 736, to issue bonds to be used in remodeling a courthouse, even where there is a tie vote in the county court over which he presides. (Post, pp. 44, 45.) 4. COUNTIES. Rights of county judge as member of county court. There is no conflict between Acts 1887, chapter 148, creating the office of county judge, and Shannon’s Code, sections 493, 5992, 6015, and the former does not amend the latter by implication so as to give a county judge the right to vote as a member of the county court. (Post, pp. 45, 46.) 5. PARLIAMENTARY LAWS. When presiding officers may vote. Where a statute provides that a presiding officer shall cast a deciding vote in case of a tie, and a member of the organization is chosen as presiding officer, as such member, he is entitled to a second vote; but, if presiding officer is not a member of the organization, he can only cast a vote where expressly authorized co do so. (Post, pp. 46, 47.)
142 Tenn. 48Sheffy v. Mitchell (1919)
1. ELECTIONS. Quarterly county court has no jurisdiction over election contest. The quarterly county court has no jurisdiction to entertain election contest under Tliomp. Shan. Code, sections 1308, 1315-1317,. giving the “county court” jurisdiction thereof; the term “county court” having reference to the quorum court, presided over by the county judge or county chairman. {Post, pp. 50, 51.) Cases cited and approved: Johnson v. Brice, 112 Tenn., 68; Puckett v. Springfield, 97 Tenn., 264. Codes cited and construed; Secs. 1308, 1315, 1316, 1317 (T.-S.). 2. ELECTIONS. Jurisdiction of court in election contest can .be raised in circuit court. In election contest proceedings', the question of the jurisdiction of the quarterly county court to determine election contest can be raised for the first time in circuit court on appeal from judgment of quarterly county court, since, quarterly county court having no jurisdiction, its decree was absolutely void. (Post, p. 51.) 3. JUDGMENT. Want of jurisdiction invaidates judgment. A court acting without jurisdiction is acting without authority of law and its decrees are absolutely void. {Post, p. 51.) Cases cited and approved: New River Lumber Co. v. Tennessee Ry. Co. et al., 141 Tenn.,-; Agee v. De Ment, 20 Tenn., 332; Baker v. Mitchell, 105 Tenn., 610; White v. Buchanan, 46 Tenn., 32; Board v. Bodkin Bros., 108 Tenn., 700.
142 Tenn. 52Roth Coal Co. v. Louisville & N. R. (1919)
„ 1. CARRIERS. Market value at destination measure of damages for conversion. Where property is converted by a common carrier to whom it has been intrusted for transportation, the measure of damages is the market value at the point of destination, less the cost of transportation. (Post, pp. 54, 55.) Case cited and approved: Dean v. Vaccaro, 39 Tenn., 488; Erie Dispatch v. Johnson & Guiñee, 87 Tenn., 490; Farwell v. Price, 30 Mo., 587; Blackmer et al. v. Cleveland C. C. & St. L. R. R. Co., 101 Mo. App., 557; Spring v. Haskell, 4 Allen (Mass.), 112; Cooper v. Young, 22 Ga., 269; McGregor & Co. v. Kilgore, 6 Ohio, 358; Shaw v. S. C. R. Co., 5 Rich., 462; Rathbone v. Neal, 4 La. Ann., 563; Wallingford v. Kaiser, 191 N. S'., 392; Downing et al. v. Out-erbridge, 79 Fed., 931; McCaull-Dinsmore Co. v. Chicago, M.. St. P. R. R. Co. (D. C.), 252 Fed., '664. 2. CARRIERS. Damages for conversion of coal. In an action by a coal company against a railroad for the conversion of carload lots of coal in transit, in the absence of anything to show that there was any wholesale market for coal in carload lots át destination at the time, the court of civil appeals was warranted in fixing the coal company’s damages from the conversion at the retail price of coal at destination, less the cost of transportation and marketing. (Post, pp. 55, 56.) 3. TROVER AND CONVERSION. Direct testimony as to value not indispensable. In an action for conversion, direct testimony as to value is not indispensable, if there is proof of the character, quality, and quantity of the injury from which the jury may properly estimate the loss or damage. (Post, pp. 56, 57.) Case cited and distinguished: Holden y. New York C. C. Ry. Co., 54 N. Y„ 662. 4. CARRIERS. Motive no defense for conversion of coal shipped. The motive which controlled a railroad in its conversion of a shipper’s coal is no defense to it, though such motive may he shown, where exemplary damages are claimed in the shipper’s action. (Post, p 57.)
142 Tenn. 58State Highway Department v. Montgomery Mitchell's Heirs (1919)
1. CONSTITUTIONAL LAW. Eminent domain. Statutes. Taking possession upon filing condemnation proceedings as due process of law. Acts 1919, chapter 149, section 9, empowering highway commission immediately upon filing of condemnation suit to take possession of the property designated, is not subject to the objection that it is a suspension of general law for the benefit'of particular individuals inconsistent with the law of the land, and therefore in violation of Const, art. 11, section 8, article 1, section 8, and Const. U. S. Amend. 14. (Post, pp. 61-64.) Acts cited and construed: Acts 1917, ch. 74; Acts 1919, ch. 149. Constitutions cited and construed: Sec. 8, art. 11; Sec. 8, art. 1; Sec. 21, art. 1. 2. CONSTITUTIONAL LAW. Eminent domain. Statutes. Condemnation proceedings for highway without cost bond. Acts 1917, chapter 74, section 6, authorizing condemnation suits for acquisition of right of way for highways to be prosecuted without cost bond, is not subject to objection that it is a suspension of general law, for the benefit of particular individuals, inconsistent with the law of the land, and therefore in violation of Constitution article 11, section 8, article 1, section 8, and Constitution U. S. Amend. 14. (Post, pp. 61-64.) 3. EMINENT DOMAIN. Procedure in eminent domain proceeding. Since neither Acts 1917, chap. 74, sec. 5, nor Acts 1919, chap. 149, sec. 9, though conferring right of eminent domain, prescribe details of procedure to be followed by counties or highway commission in acquiring property for highway purposes, the acts will be held to have been passed “with reference to the established mode of procedure in such cases existing at the time,” and the proper procedure, therefore, is according to Thomp. Shan. Code, sec. 1844 ct seg., except as modified hy said section 5 and 9. (Post, pp. 64-66.) Acts cited and construed: Acts 1917, ch. 74; Acts 1919, ch. 149, sec. 9. Case cited and approved: Railroad v, Memphis, 126 Tenn., 267. Code cited and construed: Secs. 1844, 1845-1869, 1861-1863, 1865 (T.-S.). 4. STATUTES. Construction as binding State. Law is presumed to he made for the subject or citizen only, and the sovereign is not reached by a statute unless named therein, or unless by necessary implication. (Post, p. 66.) Cases cited and approved: Railroad v. Mayor & Aldermen of Union City, 137 Tenn., 491; Mayor and Alderman of Morristown v. Hamblen County, 136 Tenn., 242. Code cited and construed: Sec. 1844 (T.-S.). 5.' STATUTES. Special laws may be passed affecting agencies of State. Conceding that general laws governing condemnation (Thomp. Shan. Code, secs. 1845-1859, 1861-1865), would otherwise apply, such laws may be repealed or modified in their application to the highway commission and the several counties acting under Acts 1917, chap. 74, and Acts 1919, chap. 149, and these agencies may be authorized to proceed in a different manner, since special laws may be passed affecting agencies of the State. (Post, pp. 66, 67.) Cases cited and approved: State v. Wilson, 80 Tenn., 246; Ballen-tine v. Pulaski, 83 Tenn., 633; Williams v. Nashville, 89 Tenn., 487; Redistricting Cases, 111 Tenn., 234; Todtennausen v. Knox County, 132 Tenn., 169; Quinn v. Hester, 135 Tenn., 373; Fleming v. Memphis, 126 Tenn., 331; Malone v. Williams, 118 Tenn., 390; Memphis v. Fisher, 68 Tenn., 239. 6. EMINENT DOMAIN. Entry without payment or bond. Where the general funds of a county of the State are subject-to satisfaction of the landowner’s claim, the legislature may with propriety permit entry upon the property designated without prepayment or bond. (Post, pp. 67-69.) Case cited and approved: Henley v. State, 98 Tenn., 665. Case cited and distinguished: Smeaton v. Martin, 57 Wis., 364. 7. EMINENT DOMAIN. Adequate provision for just compensation. Acts 1917, chap. 74, sec. 5, and Acts 1919, chap. 149, sec. 9, in view of said section 5 authorizing judgment against county in condemnation suit to appropriate land for highway purposes, make adequate provision for compensation under Const, art. 1, sec. 21, since Thomp. Shan. Code, secs. 681-684, authorize imposition of tax to pay judgment against county, and give owner of the judgment right to compel levy of tax. (Post, pp. 69-72.) Acts cited and construed: Acts 1917, ch. 74, sec. 5; Acts 1919, ch. 149. Cases cited and approved: Simms v. Railroad, 59 Tenn., 621; Parker v. Railroad, 81 Tenn., 669; Saunders v. Railroad, 101 Tenn., 206; Tuttle v. Knox County, 89 Tenn., 157; Tennessee Central Railroad Co. v. Campbell, 109 Tenn., 640; Cunningham v. Terminal Co., 126 Tenn., 343; Railroad v. Memphis, 126 Tenn., 267; Anderson v. Turberville, 46 Tenn., 150. Codes cited and construed: Secs. 681-684, 1844 (T.-S.). 8. HIGHWAYS. Highway commission may alter course of authorized road. Though Priv. Acts 1917, ch. 25, and chapter 131, authorizing Washington county to issue bonds to provide a road system, required a particular road to pass a certain place and intersect with another road at about that place, and bonds were voted and the road constructed, held that the State highway commission had authority, under Acts 1919, ch. 149, sec. 9, to alter the course of the road at said place by a deviation of about one-third of a mile;' deviation being thought necessary to make -road conform to federal requirements. (Post, pp. 72-75.) Case cited and approved: State ex rel. v. Cummings, 130 Tenn., 566. Acts cited and construed: Acts 1917, chs. 25, 131; Acts 1919, ch. 149.
142 Tenn. 76Southern Ry. Co v. Vann (1919)
1. RAILROADS. Deed, of right of way conveys easement. A deed by the owner of the fee to a railroad company for right of way for railroad purposes conveys only an easement. (Post, pp. 83-88.) Acts cited and construed: Acts of 1847 & 1848, ch. 120, sec. 23. Cases cited and approved: Railroad Co. v. Telford, 89 Tenn., 294; Railroad Co. v. French, 100 Tenn., 209; Railroad Co. v. Donovan, • 104 Tenn., 465; Railroad v. Crow, 108 Tenn., 17; Railroad Co. v. Telegraph Co., 101 Tenn., 63; N. C. & St. L. Railway Co. v. Mc-Reynolds, 48 S W., 258; Railroad Co. v. Raine, 114 Tenn., 5G9; Southern Railway v. H. W. Pardue, M. S.;- N. O. & T. P. Railway v. Sharp, 207 S. W., 728. 2. ADVERSE POSSESSION. Of railroad right of way by owner of fee. The owner of fee, subject to a railroad company’s easement of right of way, can subject the land to any use, except railroad purposes, which does not interfere with the railroad company’s use of such right of way, so that the owner’s occupation for many years is not adverse, and is no bar to the railroad company’s right to recover possession of the right of way. (Post, pp. 83-88.) 3. RAILROADS. Width of right of way granted by deed. Where a right of way for a “railroad, according to the provisions of the charter,” was conveyed by a deed, in which the width of the right of way was left blank, held that the deed did not convey merely the width of the main line and side track, but it conveyed a right of way of the width of 200 feet, as determined by the railroad company’s charter, though a later deed described a depot sit8 175 feet wide on one side of the track. (Post, pp. 83-88.) 4 RAILROADS. Abandonment of right of way not shown by nonusei and adverse holding by fee owner. The fact that a railroad company does not require the full width of its right of way at a particular time for railroad purposes is no evidence of an abandonment which involves an intention to cease maintaining and operating the road over the right of way, and an adverse holding of the land’s surface by the fee owner, and the acquiescence of the railway company therein, do not indicate an abandonment. (Post, pp. 88-91.) 5. LIS PENDENS. Adverse claimant to right in land. An adverse claimant to a right in land is not affected by the pen-dency of a suit about the land unless he is a party thereto. (Post, pp. 91-93.) 6. RAILROADS. Estoppel to claim right of way granted. An agreement by a railroad company with the owner of the fee as to the description of his land, or an agreement with another in respect thereto, such as a lease with a description not inconsistent with the use of the right of way granted, cannot estop the company,' and thereby disqualify it to discharge its obligations to the public, but such agreement, if possible, will be referred to the owner’s right to use the fee subject to right of way. (Post, ■ pp. 91-93.) Cases cited and approved: Lumber Co. v. Railroad, 129 Tenn., 176; M. & P. R. Co. v. Jacobson, 179 XJ.-S., 287; N. P. R. Co. v. Townsend, 190 ü. S, 268; McLucas v. Railway Co., 67 Neb., 603; Roberts v. Railways Co., 73 Neb., 8; N. P. R. Co. v. State, 84 Wash., 510. 7. RAILROADS. Company cannot divest itself of right of way. A railroad company is without power to divest itself or any “part of its right of way so as to cripple it in the discharge of its duties to the public. (Post, p. 93.)
142 Tenn. 94Stinnett v. State (1919)
1. STATUTES. Recital in 'title not conclusive that act is amendatory. The recital in title of act that it is amendatory is not conclusive on the court, which will examine the body of the act and ascertain ' 'therefrom its true character. (Post, pp. 96-98.) Acts cited and construed: Acts 1871, ch. 39. Cases cited and approved: Shelton v. State, 96 Tenn., 521; Turner v. State, 111 Tenn., 593; Mayor and Aldermen v. Lewis, 80 Tenn., 180; * Poe v. State, 85 Tenn., 495; McCamey v. Cummings, 130 Tenn., 494. Case cited and .distinguished: Malone v. Williams, 118 Tenn., 390. Constitution cited and construed: Sec. 17, art. 2. 2. STATUTES. Not invalid for omitting title or substance of act referred to hut not in fact amended. Acts 1871, ch. 39, entitled “An act to amend the criminal laws of the State of Tennessee, and to make the breaking and entering into the business house, outhouse, or any other house of another, other than a mansion house, with intent to commit a felony, a felony,” is not violative of Const, art. 2, sec. 17, requiring amending acts to recite the title or substance of the acts amended, since this act is not amendatory, but creates a new offense, and words in the title indicating otherwise may be disregarded, as surplusage. (Post, pp. 9.6-98.)
142 Tenn. 99Gibson v. Parkey (1919)
1. TRIAL. Exception that testimony as to transactions with testator was incompetent sufficiently definite. An exception to all that part of the testimony of the defendants W. and O. .as to any transaction with-or statement by the testator G. on the ground that such testimony is incompetent under the law was sufficiently specific and definite; the statute making such evidence incompetent being so well understood. (Post, pp. 104, 105.). Cases cited and approved: Cemetery Co. v. Shubert, 89 Tenn., 119; Thompson v. Anderson, 1 Legal Rep., 46; Whitley v. Davis, 31 Tenn., 333; Günn v. Mason, 34 Tenn., 637; Railway Co. v. Beeler, 90 Tenn., 548; Johnson v. Patterson, 81 Tenn., 651; Baxter v. State, 83 Tenn., 665; Hill v. McLean, 78 Tenn., 107; Graner v. State, 73 Tenn., 213. 2. TRIAL. Exceptions must be specific. An exception must be sufficient upon its face to point out the matter excepted to. (Post, pp. 104, 105.) 3. WITNESSES. Witness interested in result competent to testify concerning transactions with decedent. The interest of a witness in the result of the litigation is no objection to the competency of his testimony concerning conversations or transactions with a decedent; hence, in an action by an executor to recover on a note, defendant’s wife was competent to testify that the testator directed her husband to pay the note to her. (Post, .pp. 105-107.) 4. EXECUTORS AND ADMINISTRATORS. Legatee not proper party in action against husband on note. In an action by an executor on a note, where defendant’s defense was that testator directed him to pay the note to defendant’s wife, and that he did so, the wife was not properly made a party defendant on the ground that the payment to her was an advancement and chargeable against a bequest under the will. (Post, p. —.) 5. WITNESSES. Husband not party to controversy in executor’s action against wife. A husband is not a party to a controversy between his wife and an executor, wherein the executor seeks to have money, paid to the wife by the husband as directed by testator, who was a payee in a note executed by the husband, declared an advancement chargeable against a bequest to her; hence his testimony in the wife’s behalf was admissible. (Post, pp. 105-107.) 6. WITNESSES. Nominal party may testify as to transactions with decedent. > Where an executor sued on a note and defendant defended on the ground that testator had directed him to pay the proceeds of the note to defendant’s wife, and thereupon the executor had the wife made a party defendant, and sought to have such payment adjudged ah advancement to her and chargeable against a bequest to her under the will, the wife was not thereby rendered incompetent, under Shannon’s Code, sec. 5598, to testify as to conversations with the testator, as far as the rights of the husband were concerned, being only a nominal party. (Post, pp. 105-107.) 7. WILLS. Donation of note not an advancement. Under a will bequeathing $10,000 to a daughter “in addition to the advancements heretofore made her,” the daughter could not be charged with money paid her by her husband as a maker of a note held by the testator, who directed him to pay the amount of the note to her; such direction having been made prior to the execution of the will. (Post, pp. 105-107.) Cases cited and approved: Montague v. Thomason, 91 Tenn., 168; Jones v. Waddell, 59 Tenn., 338; Fuqua v. Dinwiddie, 74 Tenn., 646; Roy v. Sanford, 140 Tenn., 382. Code cited and construed: Sec. 5598 (S.). 8. EXECUTORS AND ADMINISTRATORS. Executor estopped to deny satisfaction of note. Where testator, who was payee in a note executed by defendant, directed defendant to pay the amount due on the note to defendant’s wife, executor was estopped to deny that the note was satisfied, where he deducted the amount of the note as an advancement' from a legacy to the wife. (Post, p. 107.) 9. BILLS AND NOTES. Payment to third person at payee’s direction a discharge. Under Acts 1899, chapter 94, section 119, payment by maker of a note of the amount due thereon to a third person discharged the note, where such payment was made at the direction of the payee. (Post, p. 107.) Acts cited and construed: Acts 1899, ch. 94, sec. 119. Code cited and construed: Secs. 3516a-118, subsec. 4 (S.).
142 Tenn. 108M. M. Newcomer Co. v. Newcomer's New Store (1919)
1. TRADE-MARKS AND TRADE NAMES. Right of natural person to use family name in conducting business not unlimited and may not he used to work a fraud. The right of a natural person to the use of his family name in conducting any business although such use be detrimental to other individuals of the same name, is not unlimited, and he cannot resort to any artifice or contrivance intended to delude the public as to the identity of his business or products, or combine his name with others to work a fraud. (Post, pp. 116-118.) Cases cited and approved: Wood et al. v. Wood, 78 Ore., 181; Russia Cement Co. v. Le Page, 147 Mass., 206; International Silver Co. v. William Rogers Corp., 2 Ann. Cas., 407; Martell v. St. Francis Hotel Co., 16 Ann. Cas., 593; Baker v. Gray, 192 Fed., 921; Aetna Mill, etc., Co. v. Kramer Milling Co., 82 Kan., 679; World’s Dispensary Medical Ass’n v. Pierce, 138 App. Div., 401; Chickering v. Chickering, 120 Fed., 69. Case cited and distinguished: Stix, etc., Dry Goods Co. v. American Piano Co., 211 Fed., 271. 2. TRADE-MARKS AND TRADE NAMES. Corporation may not adopt name similar to trade-name or person or concern previously engaged in similar business. A corporation may not adopt, as its name, a name similar to the trade-name of a person or concern previously engaged in a similar business, where such adoption would have the effect of deceiving or misleading the public. (Post, pp. 118-120.) Cases cited and approved: Gramm Motor Truck Co. v. Fisher Motor Co., 30 Ont. Li. Rep., 1; British-American Tobacco Co. v. British American Cigar Stores Co., 211 Fed., 933; General Film Co. v. General Film Co., 237 Fed., 64; Mobile Transfer Co. v. Schwarz, 195 Ala., 454; Bender v. Bender Store, etc., Fixture Co., 178 Ill. App., 203; Dyment v. Lewis, 144 Iowa, 509; Finney’s Orchestra v. Finney’s Famous Orchestra, 161 Mich., 289. Cases cited and distinguished: J. I. Case Plow Works v. J. I. Case Threshing Mach. Co., 162 Wis., 185; Munn v. Americana Co., 82 N. J. Eq., 63; Mobile Transfer Co. v. Schwarz, 195 Ala., 454. 3. TRADE-MARKS AND TRADE-NAMES. Corporation may be enjoined from using a name similar to another’s when likely to deceive the public, although the damage has not already been done. It is not necessary to prove that the public had actually been deceived by the similarity of a name adopted by defendant corporation to that of plaintiff,' but it is the liability to deception and consequent injury which justifies enjoining the use of such name, and, if the court can see that confusion and deception are likely to result, it will not refuse injunctive relief because the damage has not already been done. (Post, pp. 120, 121.) Cases cited and approved: Material Men’s Mercantile Ass’n v. New York Material Men’s Ass’n, 169 Ápp. Div., 843; German-American Button Co. v. Heymsfeld, 170 App. Div., 416. 4. TRADE-MARKS AND TRADE-NAMES. Adoption of incorporator’s name enjoined for fraudulent purpose to delude the public and injure complainant. Where M. M. Newcomer and others incorporated the M. M. Newcomer company and later sold the stock and organized a corporation as “Newcomer’s New Store,” at a location near by, and entered the ' same or similar business, the latter will be enjoined from the use of the word “Newcomer,” evidently adopted by the latter corporation for the fraudulent purpose of deluding the public and injuring the business of the former. (Post, p. 121.)
142 Tenn. 122Carrier v. Dixon (1919)
1. CORPORATIONS. Sale by majority stockholders of property of insolvent company. Despite noncompliance -with Acts 1907, chapter 437, the majority stockholders of a corporation in failing circumstances and insolvent, acting in good faith, free from fraud or imposition, had the right to sell the property of the company for a fair and adequate price, though minority stockholders objected. (Post, pp. 124-126.) Acts cited and construed: Acts 1907, ch. 437. Cases cited and approved: Philips v. Providence Steam Engine Co., 21 R. I., 302; Treadwell v. Salisbury Manufacturing Co., 7 Gray (Mass.), 393; State ex rel. v. Woolen Mills Co., 116 Tenn., 266-273; Parker v. Bethel Hotel Co., 96 Tenn., 252-273; Watts v. Gordon, 127 Tenn., 96-101; Union Pac. Ry. Co. v. C., R. I. & P. R. Co., 163 U. S., 564. 2. CORPORATIONS. Fiduciary Relation of majority stockholders in disposing of corporate property. Majority stockholders of an insolvent and failing company occupied a fiduciary relation to the minority stockholders, and were held to the highest good faith in the disposition of the corporate property; but the trust imposed upon them having been discharged, and it being shown that their action were just and fair to the interests of all, minority stockholders will not be heard to invoke the well-grounded principles applied in cases involving fraud, imposition, or design to obtain corporate property by ulterior means. (Post, pp. 126, 127.) Case cited and approved: Hayden v. Official Hotel Red Book Co. (C. C.). 3. CORPORATIONS. Minority stockholders participating in benefits cannot complain of sale of property of insolvent company by majority. Minority stockholders in a failing corporation, invited to join with majority stockholders, arranging a sale of its property, in the benefits of the sale, and to share equally on an even basis in the success or failure of the concern under new management, cannot complain of the sale by the majority stockholders. (Post, p. 127.) Case cited and approved: Southern Pacific Co. v. Henry L. Bogert et al., 250 U. S., 483. 4. CORPORATIONS. Minority stockholders barred by laches from setting aside transfer of property by majority. Where minority stockholders, with knowledge of the failing condition of the company, its impending bankruptcy, and the necessity of immediate sale of its property, and fully advised of all facts incident to re-establishment under new management, stood by without objection for months and witnessed large expenditures by the purchasers of the company’s property in furtherance of the new concern, knew of the payment of debts of the old company, and did not seek redress against the sale of its property by the majority stockholders until the venture was successful, their action to set aside the transfer of the property by majority stockholders is barred by laches. (Post, pp. 127, 128.) 5. CORPORATIONS. Majority stockholders justified in selling assets not taxable with costs in action to set aside sale. In an action by minority stockholders to set aside transfer of the company’s property to a new company pursuant to majority vote of the stockholders, the action of the majority having been upheld as proper and in good faith, defendant majority stockholders are not taxable with costs incident to trial or appeal, though subsequently, after the sale, by reason of business acumen or improved condition of trade, the corporate venture became successful. (Post, p. 128.)
142 Tenn. 129Stratus Cigar Co. v. Marche (1919)
FRAUDULENT CONVEYANCES. Bulk Sales Act does not include fixtures used in connection with tobacco and confectionery business. Acts 1901, chapter 133, section 1, providing that a sale of any portion of a stock of merchandise other than in the ordinary course of trade, or a sale of the entire stock of merchandise in bulk, shall be presumed fraudulent as against creditors of the seller, unless the seller and purchaser shall five days before the sale make a detailed inventory, etc., and the purchaser after inquiry shall notify the seller’s creditors, etc., does not apply to a sale of the fixtures used in connection with a business where confectionery, tobacco, and soft drinks were sold. Acts cited and construed: Acts 1901, ch. 133, sec. 1. Cases cited and approved: Heilmann v. Powelson, 101 Mise. Rep., 230; Ferrat v. Adamson et al., 53 Mont., 172; Kolander v. Dunn, 95 Minn., 422; Lee v. Gillen & Boney, 90 Neb., 730; Johnson v. Kelly, 32 N. D:, 116; Muskogee, etc., Grocery Co. v. Durant, 49 Okla., 395; Boise Ass’n of Credit Men v. Ellis, 26 Idaho, 438; Nolte v. Winstanley, 16 Ariz., 327; Gallus v. Elmer, 193 Mass., 106; Delbon v. KrautwaliJ, 169 N. Y. Supp., 610; Albrecht v. Cudihee, 37 Wash., 206; Everett Produce Co. v. Smith, 40 Wash., 566; Laundry Co. v. Lewis, 86 Conn., 386; Balter v. Crum, 199 Mo. App., 380; Bowen v. Quigley, 165 Mich., 337; Savings Bank v. Van Allsburg, 165 Mich., 524. Cases cited and disapproved: Parham & Co. v. Potts-Thompson Liquor Co., 127 Ga., 303; Plass v. Morgan, 36 Wash., 160.
142 Tenn. 133Gibson v. Buis (1919)
1. WITNESSES. Conversations with decedent incompetent to prove gift, but admissible in rebuttal. In an action by an executor to have a payment made by testator charged against a legacy as an advancement, it was competent for the legatee to testify as to a conversation had with the testator to rebut testimony of the executor as to admissions made by the legatee, but not to prove that the money given her by the testator was given as a gift and not as an advancement. (Post, pp. 137, 138.) Case cited and approved: Martin v. Martin, 174 Ill., 371. Cases cited and distinguished: Harris v. Cable, 113 Mich., 192; Campbell v. Sech, 155 Mich., 634. 2. WILLS. Gifts to legatee by testator during life presumed ademption of legacy. Where testator after executing a will made gifts to a legatee, the presumption is that such gifts were intended as an ademption of the legacy bequeathed in the will, especially where the will stated, “I may be able to pay a part or all of said amount during my lifetime, and whatever amount I do pay will be credited upon said amount herein directed to be paid by my executor.” (Post, pp. 138-140.) Case'cited and distinguished: Evans v. Beaumont, 72 Tenn., 603. 3. WILLS. Clear and convincing testimony necessary to rebut presumption that gift was ademption. Where will stated concerning a legacy, “I may be able to pay a part or all of said amount during my lifetime, and whatever amount I do pay will be credited upon said amount herein directed to be paid by my executor,” the burden was upon the legatee, in an action by the executor to charge' the legacy with money given to the legatee by the testator after the execution of the will, to show by clear, cogent, and convincing evidence that the money paid to her was not intended as an advancement. (Post, pp. 140. 141.) ' C 4. WILLS. Evidence insufficient to overcome presumption that money paid legatee worked ademption of legacy. In an action by an executor to have money paid by testator during his lifetime charged to a legatee as an advancement, evidence on the part of the legatee held in sufficiently clear, cogent, and convincing to show that the money was not intended as an advancement. (Post, pp. 140, 141.)
142 Tenn. 142Tennessee Supply Co. v. Young (1919)
1. REFORMATION OF INSTRUMENTS. Schools and school districts. Reformation of contractor’s bond properly refused in absence of showing of different agreement. In an action by materialmen wherein it was sought to hold school commissioners individually liable for materials furnished a contractor in the construction of a school building, on the ground that the bond executed by the contractor was not drawn up so as to comply with Laws 1899, chapter 182, evidence held not to show that there was any agreement or any understanding between tho commissioners and the contractor and surety to the effect that the bond was to cover labor and materials furnished as provided by such act, and a reformation was properly refused. (Post, pp. 148, 149.) Acts cited and construed: Acts 1899, ch. 182. 2. SCHOOLS AND SCHOOL DISTRICTS. Contractor’s bond did not comply with statute. A bond executed by a contractor constructing a school building held not to comply with Laws 1899, chapter 182, an act protecting laborers and furnishers of material on public works. (Post, pp. 149, 150.) Case-cited and approved: Hardison v. Yeaman, 115 Tenn., (J48. 8. SCHOOLS AND SCHOOL DISTRICTS. Contractor’s bond to furnish necessary material and labor did not inure to benefit of materialmen. A bond given by a contractor on a school building, conditioned to provide all labor and material necessary for the construction of the'building, did not inure to the benefit of those furnishing the . contractor with labor or material. (Post, pp. 150, 151.) Cases cited and approved: Sterling v. Wolf, 163 111., 467; Searles v. dora, 225 Ill., 167; Greenfield Lumber, etc., Co. v. Parker, 159 Ind., 571; Townsend v. Cleveland Fire Proofing Co., 18 Ind. App., 568; Green Bay Lumber Co. v. Independent School Dist., 121 Iowa, 663; Fellows v. Kreutz, 189 Mo. App., 547; Montgomery v. Rief, 15 Utah, 495; Puget Sound Brick Tile, etc., Co. v. School Dist. No. 73, 12 Wash., 118; Spalding Lumber Co. v. Brown, 171 Ill., 487; Beardsley v. Brown, 71 Ill. App., 199; Hunt v. King, 97 Iowa, 88; La Crosse Lumber Co. v. Schwartz, 163 Mo. App., 659; Montgomery v. Rief, 15 Utah, 495; Electric Appliance Co. v. U. S. Fidelity, etc., Co., 110 Wis., 434. Case cited and distinguished: Cleveland Metal Roofing, etc., Co. v. Gaspard, Ann, Cas., 1916A. 759. 4. SCHOOLS AND SCHOOL DISTRICTS. No lien on school building for material furnished. Furnishers of materials on a public school building in the course of construction by contractor have no lien on the property, and the school district is not liable to one who furnishes material to the contractor. (Post, pp. 151, 152.) 5. SCHOOLS AND SCHOOL DISTRICTS. Surety on contractor’s bond not liable for voluntary payment of materialmen by owner. A surety on the bond of a contractor constructing a school building was not liable to the school' commissioners, who paid a creditor of the contractor when, they were under no obligation to do so. (Post, pp. 152, 153.) 6. SCHOOLS AND SCHOOL DISTRICTS.' Contractor and surety on school building liable for upkeep of buiding for one year and for defective workmanship and material. A contract and bond for the construction of a school building field to render the contractor and surety liable for the upkeep of the building for a period of one year from and after its completion, as well as for any defective workmanship or material in its construction. (Post, pp. 153-155.) 7. SCHOOLS AND SCHOOL DISTRICTS. Finding by chancellor as to amount of damages caused by defective workmanship and material sustained. In an action wherein school commissioners sought damages from a contractor and his surety due to defective workmanship and material used in the construction of a school building, a finding by the chancellor of damages in the sum of $4,171.92 Held proper under the evidence. (Post, pp. 155-159.)
142 Tenn. 160State ex rel. Calloway v. Trotter (1919)
1. PRISONS. Sheriff to receive pay only for meals actually furnished. Under Pub. Acts 1875, chapter 43, as amended by Pub. Acts 1917, chapter 61, section 1, a sheriff is only entitled to receive pay for meals actually furnished a prisoner on a basis of 50 cents for three meals, and where only one meal is furnished on one day, and the prisoner is discharged before the time for serving the next meal, he is entitled to receive only pay for one-third of a day. (Post, pp. 167, 168.) Acts cited and construed: Acts 1875, ch. 43; Acts 1917, ch. 61, sec. 1. 2. PRISONS. Sheriff’s duties as to furnishing water to prisoners ' stated. Under Pub. Acts 1875, chapter 43, section 1, as amended by Pub. Acts 1917, chapter 61, section 1, and Shannon’s Code, sections 7430, 7431, it is the duty of the sheriff to see that prisoners in a county jail are supplied with wholesome drinking water, but he need not furnish such water at his own expense, and certainly not water used and required by the statutes in keeping cells clean, etc., and he need not pay water rents. (Post, pp. 168-171.) Code cited and construed: Secs 7430, 7431 (S.). 3. PRISONS. Sheriff not entitled to recover from county money paid for bug killer purchased. A sheriff is not entitled to recover of the county for “bug killer” purchased on his own initiative, where the county maintained a committee known as the “courthouse and jail committee,” whose duty it was to purchase all supplies necessary for the courthouse and pail. (Post, pp. 171, 172.)
142 Tenn. 173McKee v. State (1919)
1. CRIMINAL LAW. Presumption indulged that workhouse officials will not require defendant to work out improper items of hills of costs. In the absence of anything to/ the contrary, it must he presumed that workhouse officials will not endeavor to force a defendant, sentenced to the workhouse, to work out any items in the hills of costs which the law does not provide shall he worked out. (Post, pp. 176, 177.) Acts cited and construed: Acts 1919, ch. 134. 2. COSTS. Motion to strike litigation taxes from hill of costs properly-overruled. Under Acts 1919, chapter 134, requiring litigation taxes to he included in the hill of costs and in no case to he remitted, in a misdemeanor case in which defendant cannot he required to work out such taxes, a motion to strike them from the bill of costs was properly overruled, though judgment required that costs he worked out “as required by law;” the remedy being by habeas corpus if any effort to require him to work out such items is made. (Post, pp. 176, 177.) 3. COSTS. Attorney General’s fee should not he stricken from hill of costs. Under Shannon’s Code, sections 6376, 6377, requiring an Attorney General’s fee to he taxed in misdemeanor cases successfully prosecuted, a motion to strike such fee from the hill of costs was properly overruled, though judgment required that costs be worked out “as required by law,” and such taxes need not he worked out. (Post, pp. 177, 178.) Code cited and construed: Secs. 6376, 6377 (S.). 4. CONSTITUTIONAL LAW. Eminent Domain. Statute imposing expense fees as part of costs on conviction is not invalid. Acts 1919, chapter 57, providing that every person convicted of a misdemeanor shall he required to pay, secure, or work out in addition to other costs, county and State expense fees of $5 each, is not invalid as taking defendant’s property without compensation or without due process of law, in violation of Const, art 1, sections 8, 21; there being overhead expenses which cannot be accurately prorated, and the prescribed fees being reasonable. (Post, pp. 178, Cases cited and approved: Knox v. State, 68 Tenn., 202; Strong v. State, 129 Tenn., 472. Constitution cited and construed: Sec. 21, art. 1; Sec. 8, art. 1.
142 Tenn. 184Hoggatt v. Clopton (1919)
1. WILLS. Intention to lie found from instrument as a whole. The court should seek to discover testator’s intention regarding the will as a whole, and not any separate portion or expression. (Post, ■pp. 192-196.) Cases cited and approved: Vaughan v. Cator, 85 Tenn., 302; Meacham v. Graham, 98 Tenn., 192; Katzenherger v. Weaver, 110 Tenn., 620; Scruggs v. .Mayherry, 135 Tenn., 586; East v. Burns, 104 Tenn., 182; Hottell v. Browder, 81 Tenn., 678; Adkinson v. Adkisson, 4 Higgins, 458; Armstrong v. Douglas, 89 Tenn., 223. Cases cited and distinguished; Lynch v. Burts, 48 Tenn., 600; Frank v. Frank, 120 Tenn., 580. 2. WILLS. Devise with limitation over on devisee’s death without children creates base fee with executory devise over. Under will ginving testator’s wife absolutely certain lands, and for life half of all his estate in a particular county, and to his niece half of all his property in such county, the estate in such county to be kept together and managed for the joint benefit of the niece and wife until one should marry, and after, if they chose, the property to go to the niece on death of wife, and “in the event of her dying without children or grandchildren the property to go’’ to the children of a deceased nephew then living, the niece took a base or determinable fee in the property; there being a valid executory devise over in favor of children of the nephew on death of the neiece at any time without children or grandchildren. (.Post, pp. 196, 197.) 3. WILLS. “Child” or “children” did not mean grandchildren at common law. The rule at common law was that the ordinary meaning of “child” or “children” was the legal meaning, and that such words meant immediate offspring, and did not include. grandchildren. (Post, pp. 197, 198.) Cases cited and approved: Turner v. Ivie, 52 Tenn., 222; Frank v. Frank, 120 Tenn., 585; Grant v. Mosely, 52 S. W., 508; Jarnagin v. Conway, 21 Tenn., 50; Booker v. Booker, 24 Tenn., 505; Cruse v. McKee, 39 Tenn., 1; Collins v. Williams, 98 Tenn., 525; Tipton v. Tipton, 41 Tenn., 252. Case cited and distinguished: Booker v. Booker, 24 Tenn., 505. 4 WILLS. Devise to children not incuding grandchildren. Executory devise over, in the event of death without children or grandchildren of a niece, devising a base or determinable fee to the “children” of a deceased nephew then living, held not to include grandchildren of such nephew; the word “children” having been used in its ordinary sense, in view of the context. (Post, pp. 198, 199.)
142 Tenn. 200Nashville, C. & St. L. Ry. v. Hopper (1919)
1. CARRIERS. Liable for loss of goods from defects in car procured for particular shipment. A common carrier is liable for the loss of goods resulting from defects in a car belonging to another company and procured by the carrier for the particular shipment at the reguest of tho shipper. {Post, pp. 204, 205.) Case cited and approved: Railroad v. Dies, 91 Tenn., 177. 2. CARRIERS. Degrees of care reguired towards passengers and freight stated. A carrier is not held to so high a degree of liability in the caso of passengers as in the case of freight, but is ordinarily hold to the highest degree of care in the transportation of passengers. {Post, p. 205.) 3. CARRIERS: No liability for injuries to shipper’s empoyee through defective design of poultry car.. Where a produce company, shipping poultry ordered an L. P. T. poultry car for a shipment, and defendant railway furnished a new car of the type, without defect, except the alleged defect of design or contruction, that the grain bin underneath had too large a hole, the railway is not liable for injuries to the produce company’s employee riding with the car, when his leg passed through the hole in the bin when the train was moving; he having assumed the risk. {Post, pp. 205, 206.) 4. CARRIERS. Passenger riding on caboose assumes added risks. One riding on the caboose of a freight train though as a passenger, assumes the increased risk incident to such mode of travel, and cannot recover for injuries resulting in the absence of negligence of the railway. {Post, p. 206.) Case cited and approved: Felton v. Hornei, 97 Tenn., 579. 5. CARRIERS. Duty toward caretaker of livestock modified by incidents of employment. The duty of a carrier to a caretaker accompanying live stock is modified by the fact that the requirements of a caretaker’s employment expose him to certain perils not incident to ordinary travel. (Post, pp. 206, 207.) Case cited and approved: Omaha & Republican Valley R. Co. v. Crow, 54 Neb., 747. Case cited and distinguished: Western Md. R. Co. v. State, 95 Md., 637.
142 Tenn. 208Justice v. Clinard (1919)
ABATEMENT AND REVIVAL. Husband’s action for alienation, involves character and abates on his death. A husband’s action for alienation of his wife’s affections involves the husband’s character, evidence on that issue being competent, so that, under Shannon’s Code, section 4569,' the action abates on his death. Cases cited and approved: Reed v. Williams, 37 Tenn., 581; Bolin v. Stewart, 66 Tenn., 299; Weeks v. Mays, 87 Tenn., 443; Hullett v. Baker, 101 Tenn., 689; Glass v. Bennett, 89 Tenn., 479; Morgan v. Ross, 74 Mo., 318; Mathus v. Mazet, 164 Pa. St., 580; Wyndham v. Wycombe, 4 Esp., 16; Bromley v. Wallace, 4 Esp., 237. Cases cited and distinguished: Hartpense v. Rogers, 143 Mo., 623; Norton v. Warner, 9 Conn., 173; Mary J. Wolf v. Amelia Frank, 92 Md., 145; Smith v. Masten, 15'Wend. (N. Y.), 27S; State v. Roderick, 14 L. R. A. (N. S.), 749.
142 Tenn. 215Hill v. Roberts (1919)
1. STATUTES. Construed together when relating to same subject. If the court can see from an inspection of several statutes that they relate to the same subject, they will be construed together although there is no direct reference in any one to any other. (Post, pp. 220, 221.) Acts cited and construed: Acts 1919, ch. 122, 791. Case cited and approved: Bird v. State, 131 Tenn., 518. 2. STATUTES. Statutes in pari materia when enacted at same session. .The rule of construing statutes in pari materia is of peculiar force when such statutes were enacted at the same session of the legislature. (Post, pp. 220, 221.) 3. ARMY AND NAVY. Acts concerning soldiers’ memorial construed as in pari materia. Pub. Acts 1919, chapter 122, and Priv. Acts 1919, chapters 745, 791, are all in furtherance of a general scheme formulated by the legislature, whereby Nashville, Davidson county, and the State of Tennessee were to unite in the construction of a grand memorial to the soldiers and sailors of the World War, and should be construed together as one act. (Post, pp. 221, 222.) 4. TAXATION. Statute requiring tax levy by county and city not . invalid. Assuming that Priv. Acts 1919, chapter 745, and chapter 791, relating to a soldiers’ and sailors’ memorial, require a mandatory tax levy by the county of Davidson and by the city of Nashville in aid of bonds authorized by such statutes, they do not, for that reason, violate Const., article 2, section 29, as to delegation of legislative power to tax. (Post, p. 222.) Cases cited and approved: Vertrees v. State Board of Elections, 141 Tenn., 645; Demoville v. Davidson County, 87 Tenn., 214; State ex rel. v. Cummings, 130 Tenn., 566; Quinn v. Hester, 135 Tenn., 373; Berry v. Shelby County, 139 Tenn., 532. 5. TAXATION. No restrictions on state’s power inferred. No constitutional restriction upon a State’s power to tax "will be inferred. (Post, p. 222.) 0. TAXATION. State may direct county or city to levy tax. , A State, having full control of counties and cities, in the matter of taxation at least, may authorize them to levy a tax, or may direct them to levy a tax, or may itself directly tax for their benefit. (Post, pp. 222, 223.) 7. STATUTES. Only one subject embraced in statute authorizing soldier’s memorial. Pub. Acts 1919, chapter 122, relating to a memorial to soldiers and '■ sailors of the war with Germany, did not violate Constitution, article 2, section 17, by embracing more than one subject not expressed in its title; the Capitol Annex, parks, new street and other things being but a part of the general scheme of the plan expressed in its title. (Post, p. 223.) 8. ARMY AND NAVY. Capitol Annex an integral part of soldiers’ and sailors’ memorial. Pub. Acts 1919, chapter 122, section 2, subsec. (d), did not authorize the memorial commission to dislocate the Capitol Annex from the site provided for the laying out and erection of a grand memorial to the soldiers and sailors of the war with Germany. (Post, pp. 223-225.) 9. ARMY AND NAVY. Memorial commission authorized to interchange location of buildings. Under Pub. Acts 1919, chapter 122, and Priv. Acts 1919, chapters 745 791, relating tc the construction of a grand memorial to the soldier’s and sailors of the war with Germany, the memorial commission is authorized to transpose or interchange the location of the parks and buildings from one to another of the four squares that will be formed around the intersection of Capitol boulevard and the new Victory boulevard. (Post, pp. 223-225.) 10.STATES. State not within constitutional provision that credit shall not be given without majority votes of three-fourths of qualified voters. The State is not within Constitution, article 2, section 29, relating to cities, counties and towns, and providing that credit shall not he given to them except upon a majority of three-fourths of the qualified voters. (Post, pp. 225, 226.) Case cited and approved: Ransom v. Rutherfojd County, 123 Tonn., 1. 11. COUNTIES. Municipal corporations. States. State, county, and city may unite in construction of memorial to soldiers and sailors. The construction of the great and inspiring memorial to our soldiers an dsailors of the war with Germany, provided for hy Pub. Acts 1919, chapter 122, and Priv. Acts 1919, chapters 745, 791, is a laudable purpose, and a public purpose to which the State, county, and city may unite and tend their aid. (Post, p. 226.) Cases cited and approved: Kingman v. City of Brockton, 153 Mass., 255; Parsons v. Van Wyeh, 56 App. Div., 329; Daggett v. Colgan, 92 Cal., 53. 12. ARMY AND NAVY. Proceeds of bonds for soldiers’ and sailors’ memorial to be used for purpose specified. The proceeds of the bonds authorized to be issued under Priv. Acts 1919, chapters 745, 791, by the county of Davidson and city of Nashville, can only be used for the purpose specified in Pub. Acts 1919, chapter 122, relating to the construction of a grand memorial for the soldiers and sailors of the war with Germany. (Post, p. 226.) 13. ARMY AND NAVY. Capitol Annex inseparable from grand memorial of soldiers and saiors of war with Germany. The Capitol Annex is but a part of the plan for the construction of a grand memorial for the soldiers and sailors of the war with Germany, and the cost of its construction may be defrayed from the entire fund contributed by the State, county of Davidson, and city of Nashville, under Pub. Acts 1919, chapter 122, and Priv. Acts 1919, chapter 745, 791. (Post, pp. 226-228.) Case cited and approved: Reid v. Campbell, 19 Tenn., 378.
142 Tenn. 229Traders' Nat. Bank v. First Nat. Bank (1919)
1. BILLS AND NOTES. Check not accepted where draft in payment was never delivered and hank refused to accept check within twenty-four hour period. Under Negotiable Instruments Law 1899, a drawee hank has 24 hours in which to accept or reject checks; so, where defendant drawee . hank received a check after the usual clearing hours, and on the same day an employee placed the check on a pointed file and drew and mailed Chicago draft to the corresponding hank, hut in less than 24 hours the drawee hank learned that the account of the maker was insufficient to satisfy the check, held that, where the drawee hank was able to prevent the draft from being delivered, there was no acceptance. (Post, pp. 233.-237.) Acts cited and construed: Acts 1899, ch. 94. Cases cited and approved: Bank v. Bank, 127 Tenn., 20B; Luke v. Bank of America, 42 Tenn., 397; Canterbury v. Bank of Sparta, 91 Wis., 53; Security Nat. Bank v. Old Nat. Bank, 241 Fed., 9; Brevard v. Neely, 34 Tenn., 164; Ex parte Cote, L. It., 9 Ch., 27. 2. BILLS AND NOTES. Deposit in mails of letter containing acceptance of check is not unqualified acceptance, if acceptor may procure return of letter. Since Post Office Regulations 1913, section 552, 553, allow the writer or sender of a letter to obtain return of same when duly identified, . a drawee bank, which deposited in the mails a letter containing a draft issued in acceptance of check, did not accept the check where, within the 24 hours’ time allowed for accepanee, it reconsidered its action, and by appealing to the postal authorities procured return of the letter; the change in the postal regulations having altered the old rule that deposit in the mails was a delivery. (.Post, pp. 233-237.)
142 Tenn. 238Hawkins v. State (1919)
1. INTOXICATING--LIQUORS. LaTael on bottles prima-facie evidence that contents were whiskey. Where bottles, discovered on searching a storeroom which defendant had rented, were labeled “Cascade Whiskey,’’ such labels make a prima-facie case that the contents of the bottles were whiskey. (Post, p. 240.) Acts cited and construed: Acts 1917, ch. 10. 2. INTOXICATING LIQUORS. Possession of liquor insufficient evidence of transportation. In a prosecution for transporting intoxicating liquor from one place to another within the State, and for receiving same from a carrier since the enactment of Acts 1917, chapter 10, evidence that whiskey was found in an unused stove in a storeroom which defendant had recently rented held insufficient, in view of the presumption of defendant’s innocence and of the fact that he disclaimed ownership of the whiskey, to sustain a conviction. (Post, pp. 240, 241.) 3. CRIMINAL LAW. Accused presumed guilty only after conviction. One accused of crime is in the trial court presumed innocent, though after conviction the appellate court will presume him guilty. (Post, pp. 240-241.)
142 Tenn. 242Daly v. Daly (1919)
WILLS. Words of desire and request held to create a precatory trust. Where a testator, after giving his wife all his real and personal property, declared that he had sold to one relative a parcel of land accepting notes in payment, and requested that when the relative should have paid all hut the last $1,500 that amount should be given him, and further stated that he valued the land occupied by another relative at $5,000, and requested that such relative be allowed to purchase it on installments, the requests, as they left the wife no discretion and were definite and certain, must be treated as creating precatory trusts in favor of the two relatives. Cases cited and approved: Wright v. Atkyns, 1 Turn. & Russ., 157; Anderson v. Hammond, 70 Tenn., 281. Cases cited and distinguished: Ogvilvie v. Wright, 140 Tenn., 114; Bradley v. Carnes, 94 Tenn., 27; Beecher v. Hicks, 75 Tenn., 207; Colton v. Colton, 127 U. S., 300; Williams v. Williams, 1 Sim. (N. S,), 358; Briggs v. Penny, 3 MacN. & G., 546; Hess v. Singlor, 114 Mass., 56; Knox v. Knox, 59 Wis., 172; Warner v. Bates,. 98 Mass., 274; Anderson v. McCullough, 40 Tenn., 615; Hadley v. Hadley, 100 Tenn., 446.
142 Tenn. 258Carter v. Redmond (1919)
1. ABATEMENT AND REVIVAL. Variance between pleading and process waived by plea to the merits. Variance between pleading and process is tecbnical in character, and it is too late to take advantage of same after pleading to the merits; therefore, after defendant filed plea in bar to an action, which was begun by injured party and revived in the name of his widow, it is too late to assert that the order of revival did not allow the widow to recover damages for wrongful death, such damages being prayed in the declaration. (Post, pp. 260-262.) Case cited and approved: McKenna v. Fisk, 1 How., 241. 2. ABATEMENT AND REVIVAL, Variance between pleading and process waived by first objecting after judgment. An objection to a variance between pleading and process comes too late, where made for the first time after judgment, arid delay cannot be excused on the ground that defendant sought to present the matter by instructions; instructions not being pleadings. (Post, p. 262.) Cases cited and approved: Payton v. Trigg, 5 Tenn., 250; Johnson v. Planter’s Bank, 20 Tenn., 77. 3. NEGLIGENCE. Violation of statute actionable, when beneficiary complains. One not a beneficiary of a statute cannot base an action or defense on its violation. (Post, pp. 262-265.) 4. HIGHWAYS. Acts requiring motorist to come to a stop at railroad ■ crossings not for protection of travelers on highway. Acts 1917, chapter 36, requiring drivers of automobiles crossing railroad track to come to a full stop, is not intended to protect the travelers using the highway, such persons being protected by the common law and by Acts 1905, chapter 153, but was designed to prevent collisions between trains and automobiles. (Post, pp. 262-265.) 5. HIGHWAYS. Instruction in action for injury to railroad section foreman, struck at grade crossing by motorist, as to statutory duty of motorist to stop, reversible error. A section foreman, who while at a grade crossing was struck by an automobile, could not claim negligence in motorist’s failure to stop his vehicle before reaching the tracks, as required under Acts 1917, chapter 3.6, for the statute is not intended for the protection of persons on the highway. {Post, pp. 262-265.) Acts cited and construed: Acts 1917, ch. 36. Case cited and approved: Chattanooga Ry. & Lt. Co. v. Bettis, 139 Tenn., 332.
142 Tenn. 265Chandler v. Davidson County (1919)
1. COUNTIES. Liability for nuisance stated. A county, although not liable for misfeasance of its agents is not authorized to commit a nuisance either public or private. {.Post, pp. 272, 273.) Cases cited and approved: Burnett v. Maloney, 97 Tenn., 697; Whites Creek Turnpike Co. v. Davidson Co., 84 Tenn, 73; Wood v. Tipton County, 66 Tenn., 112; Williams v. Taxing Dist., 84 Tenn., 531; McAndrews v. Hamilton County, 105 Tenn., 400; Rhea County V. Sneed, 105 Tenn., 581; State v. Wayne County, 108 Tenn., 262; Pierce v. Gibson County, 107 Tenn., 233. 2. HIGHWAYS. Ditch in road constituted nuisance so the county was liable for resulting injuries. Where a county, acting through its road commissioners and the superintendent of the county workhouse board, in repairing a road, has constructed a aitch in the roadway in front of the entrance to a residence, nine feet long, four feet wide and three and one-half feet deep, without any guards, the construction of such ditch held to constitute a nuisance, and the county was liable to one falling therein, regardless of its liability for misfeasance of agents. {Post, pp. 272, 273.) 3. HIGHWAYS. Distinction between failure to repair roads and commission of nuisance as to liability of county for resulting injuries. In constructing a new road, a county acts for the sovereign, because the State has delegated its sovereignity therein to the county for that purpose; but the State does not authorize it to commit a nuisance, such act not being an attribute for injuries caused by such nuisance. {Post, p. 273.) Case cited and approved: Southern Railway v. Memphis, 126 Tenn., 267. 4. HIGHWAYS. County officers or agents liable for nuisance committed hy them in constructing road resulting in injuries to pedestrian. Where a county, acting through its road commissioners and superintendent of workhouse, in constructing and repairing a road, has created a nuisance consisting of a deep ditch in the road at the entrance to a private residence, and a pedestrian is injured by falling therein in the dark, both the county, its road commissioners, and the superintendent of the workhouse, were liable, and it was error to dismiss a suit for personal injuries so sustained as to the commissioners or superintendent. (Post, pp. 273, 274.)
142 Tenn. 275Merchants' Bank & Trust Co. v. Bushnell (1919)
PROM HAMILTON. Appeal from tlie Chancery Court of Hamilton County. —Hon. W. B. Gaevin, Chancellor.
142 Tenn. 280Moody v. Gufl Refining Co. (1919)
1. NEGLIGENCE. Proximate cause, when a question for the jury. When the facts of the particular case are disputable and are of such a character that difiere ntminds might reasonably draw different conclusions therefrom, the question of what is the proximate cause of an injury is one of fact for the jury, but when the facts are undisputed and are susceptible of hut one inference, the question is one of law for the Court, 2. NEGLIGENCE. Intervening cause, when a question of law. When the facts are uncontroverted and only one inference can be drawn, whether there was a sufficient intervening cause preventing the defendant’s act from being the proximate cause of the injury is a question of law. 3. NEGLIGENCE. “Proximate cause” defined. An injury that is the natural and probable consequence of an act of negligence is actionable, and such an act is the proximate cause of the injury, but an injury which could not have been foreseen nor reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either the remote cause, or no cause whatever of the injury. {Post, pp. 290, 291.) Cases cited and approved: Railroad v. Pugh, 97 Tenn., 624; Cola v. German Sav. & L. Soc., 59 C. C. A., 593; Hoag v. Lake Shore • . & M. S. R. Co., 85 Pac., 293; Ryan v. New York C. R. Co., 35 N. Y., 210; Stone v. Boston & A. R. Co., 171 Mass., 536; Laidlaw v. Sage, 158 N. Y., 73;. Fanning v. White, 148 N. G, 541. Case cited and distinguished: Kreigh v. Westinghouse, C. K. & Co., 152 Fed., 120. 4. NEGLIGENCE. Spilling gasoline, causing fire, while avoiding peril from blasting, not actionable. An employee of defendant in unloading a tank car filled with gase-line is not negligent in that, while emptying the spout at the bottom of the tank into a tub, he, on warning of blasting of rock near by, ran around the ear to escape danger, and in his absence the tub overflowed, and the overflow was ignited, 'and the fire burned plaintiff’s building. (Post, pp. 291, 292.) 5. NEGLIGENCE. Act in emergency not negligent. One who in sudden emergency acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence. (Post, p. 292.) Case cited and approved: Lemay v. Springfield Railway Co., 37 L. R. A. (N. S.), 43. 6. NEGLIGENCE. Act of boys throwing matches into spilled gasoline proximate cause of fire. Where boys, knowing inflammable nature of gasoline, in the short absence of defendant’s employee who did not know that they had matches, threw lighted matches in pools of gasoline on the ground, occasioned by unloading a tank car, and thereby a fire was started, burning plaintiffs’ building, the act of the boys was an independent, intervening cause, for which defendant was not liable, conceding its negligence in permitting the gasoline to escape. (Post, pp. 292, 293.)
142 Tenn. 295Meckleburg Real Estate Co. v. Kyoleum Co. (1919)
1. LANDLORD AND TENANT. Failure to give notice of desire to cancel or renew under lease, evidence lessee desired to continue lease for year. Under a lease providing that failure of lessee to give lessor written notice ninety days in advance of expiration of tlie lease of desire to cancel or renew should he considered as evidence the lessee desired to continue the lease in force for a year after expiration, failure to give notice was tantamount to the tenant’s making a proposition to the landlord to continue the lease for another year on the same terms and conditions, subject to the acceptance or rejection of the landlord exercised before termination of the lease. (Post, p.298.)' 2. LANDLORD AND TENANT. Effect of lease provision for continuance in contingency. A provision in a lease for continuance in a certain contingency does not, as a covenant to renew, involve an agreement to make a new lease, hut merely extends the operation of the original lease for the additional term on the happening of the contingency, subject to the election of the lessor exercised after failure to give notice and before termination- of the lease. (Post, p. 298.) 3. LANDLORD AND TENANT. Clause applicable only to original lease not carried forward into new lease effected by provision for continuance in contingency. A clause or provision clearly applicable to an original lease alone is not carried forward into a new lease for an additional term effected by a provision in the original lease for its continuance in a certain contingency. (Post, pp. 298, 299.) Case cited and distinguished: Rutgers v. Hunter, 6 Johns. Ch. (N. Y.), 219. 4. LANDLORD AND TENANT. Lessor’s loss of rights under failure to notify clause hy improper election. Where a lease provided that failure of the lessee to give written notice ninety days in advance of expiration of a desire to cancel or renew should he considered as evidence the lessee desired to continue the lease for a year after expiration and, after the lessee failed to give notice, the lessor improperly demanded a new lease for the next year containing the “failure to notify” clause applying to the year after that, the lessor’s right was lost hy its improper election and demand, and, on its rejection hy the lessee and determination to remove, the lessor’s rights ended, and its subsequent action in notifying the lessee it would he held for rent under the existing lease did not restore them. (Post, pp. 299-301.) 5. EQUITY. Unverified answers treated as general denials where answers under oath are waived. Where answers making a general denial of the liability of defendant tenants in equity are none of them under oath, hut complainant lessor has waived answers under oath, the answers will he treated as general denials, and as tendering the general issue as at law. (Post, p 301.) G. ESTOPPEL. Assumption of position as against one demand does not prevent change as against other. Where defendant tenants, in face of one demand hy their lessor, took a certain position, they are not estopped from changing such position in subsequent litigation hy the lessor against them to enforce a different demand; the first having been that they execute new leases for a year after the original term on account of their failure to notify of desire to terminate, and the second being that they pay the amount which they would have paid as tenants for such following years. (Post, pp. 301, 302.) 7. ESTOPPEL. Estoppel after litigation from changing reason for conduct. The rule that a party, having given a reason for his conduct ab.out a matter in controversy, is estopped after litigation is begun from changing his ground, is not a rule oí universal application, hut is of doubtful application in any case unless the former position is inconsistent with the position adopted after litigation, or unless the adverse party, has been misled or is prejudiced by the change of attitude. (Post, pp. 301, 302.) Cases cited and approved: Snyder v. Mystic Circle, 122 Tenn., 250; 250; Ault v. Dustin, 100 Tenn., 366; Taylor-Baldwin Co. v. Northwestern T. & M. Ins. Co., 18 N. D. 343.
142 Tenn. 304Post v. Brown (1919)
1. LANDLORD AND TENANT. Destruction by fire of entire building does not terminate lease. In the absence of statutory regulation or contractual relation to the contrary, the destruction by a fire of an entire building does not terminate a lease thereon, nor operate to relieve a lessee from the payment of rent for the remainder of his term. {Post, p. 306.) Case cited and approved: Railroad v. Heikens, 112 Tenn., 387. 2. LANDLORD AND TENANT. Destruction of leased premises where only part of entire premises is leased terminates contract. Where only a part of a building, an apartment, room,' or space, as distinguished from an entire structure, is leased, destruction by fire or other cause puts an end to the contract, and absolves the lessee from the payment of rent. {Post, p. 306.) Cases cited and approved: Ainsworth v. Mt. Moriah Lodge, 172 Mass., 261; Chamberlain v. Godfrey’s Adm’r, 50 Ala., 530; McMillan v. Solomon, 42 Ala., 364; Waite v. O’Neil, 76 Fed., 408. 3. LANDLORD AND TENANT. Lease of part of entire premises not terminated by fire which merely interrupts use of such part. Where part of certain premises was leased and a fire in such part did not entirely destroy it or render it untenantable, so that the damage merely caused a temporary interruption of the use of the premises which might be remedied with reasonable dispatch, the lease was not terminated, and upon repair being made by the lessor the lessee is obligated to the payment of the stipulated rent;- the mere impairment of use as distinguished from destruction not depriving the lessee of all interest. {Post, pp. 306, 307.) Gases cited and approved: Humiston, Keeling & Co. v, Wheeler, 175 Ill., 514; Conn. Mutual Life Ins. Co. v. U. S., 21 Ct. Cl., 195; Nonotuck Silk Co. v. Shay, 37 Ill. App., 542.
142 Tenn. 309Nolfe v. Byrne (1919)
1. CHARITIES. Attorney General alone may enforce observance of charitable trust where fund is adequate. The attorney-general alone can compel the observance of a charitable trust, the heirs having no concern with the matter, in view of-Thomp. Shan. Code, section 5166, but the attorney-general cannot compel the trustee to raise funds for the eifectuation of the trust where the devise is not adequate, being in the nature of a contribution conditioned upon the raiding of other moneys. (Post, pp. 314, 315.) Oases cited and approved: Heiskell v. Chickasaw Lodge, 87 Tenn., 668; Ewell v. Sneed, 136 Tenn., 602; Gibson v. Frye Inst., J.37 Tenn., 452. Code cited and construed: Sec. 5166 (T.-S.). 2. CHARITIES. Trustee held to take property devised for charitable purpose upon condition subsequent. A devise of land and money in trust “for the sole and only purpose of founding a home as hereinbefore stated” held to contemplate the appropriation of additional funds for the project, and hence trustee took title to the property upon conditions subsequent. (.Post, pp. 315, 316.) 3. WILLS. Conditions not favored but must be enforced. Conditions are not favored in the law, but if they are- plainly expressed in a will, and lawful, they must be enforced. (Post, p. 316.) 4. WILLS. No particular words necessary to constitution condition precedent or subsequent. No particular or technical words are necessary in a will to con-» stitute a condition, either precedent or subsequent, and it is not necessary that a right of- re-entering be reserved or that a forfeiture he provided in express terms. (Post, p. 316.) Cases cited and approved: Nashville R. Co. v. Jones, 42 Tenn., 575; Murdock v. Mayor & Aldermen of Memphis, 47 Tenn., 483; Oldham v. Railway Co., 2 Higgins, 644. 5. WILLS. Words may create condition in win which would not he given such effect in deed. Words often create a condition precedent or subsequent in a will which would not be given such an effect if used in deed. (.Post, pp. 316, 317.) Cases cited and approved: Upington v. Archbishop Corrigan, 151 N. Y., 143; Hayden v. Stoughton, 5 Pick. (Mass.), 528-; Austin v. Cambridgeport Parish, 21 Pick. (Mass.), 215. 6. 'DEEDS. Conditions subsequent to be performed within a reasonable time. When an estate is conveyed on condition subsequent and no time is limited in which the condition is to be performed, it must be performed within a reasonable time. (Post, p. 317.) 7. CHARITIES. Devisee usually has term of life to perform. Ordinarily, when an estate is devised upon a condition and no time is limited in which it is to be performed, the devisee has the term of his life in which to perform the condition, but, where a devise was made to a bishop of a diocese “and to his successors in office forever,” a condition subsequent must be performed within a reasonable time. (Post, pp. 317, 318.) Case cited and approved; Finlay v. King, 3 Pet., 346. 8. WILLS. Estate passes to heirs on breach of condition subsequent. If there is a breach of condition subsequent in a devise of land and a forfeiture of the estate, it passes to the heirs of testator. (Post, p. 318.) Case cited and approved: Board v. Baker, 124 Tenn., 39.
142 Tenn. 320Payne v. Payne (1919)
1. MARRIAGE. Rule that there must he search of records to overcome presumption of divorce applies only to State of party’s residence. The rule that a general search must he made of the court records for divorce in order to overcome the presumption indulged in favor of the legality of a second marriage has reference to the court records of the State in which the spouse effecting the second marriage has established a residence, so where a man, resident of Tennessee celebrated a second marriage in Arkansas, stating at the time he was a resident of the State of Ohio, the court records of States other than Tennessee need not be searched to rebut the presumption that there was a divorce. (Post, pp. 330, 331.) 2. MARRIAGE. Presumption favor of legality of second marriage that there was a divorce can be overcome by proof. The presumption in favor of the legality of a second marriage that the person celebrating the marriage has obtained a divorce is one of fact, and may be rebutted by proof. (Post, pp. 331-333.) 3. MARRIAGE. Presumptions of divorce in- favor of legality of second marriage are not indulged in on behalf of the parties. The presumption of divorce in favor of the legality of a second marriage is not for the benefit of the parties, or intended to allow the bigamous wife or bigamous husband to prevail over a legal spouse, or a legal marriage. (Post, pp. 331-333.) 4. MARRIAGE. Second marriage held invalid; the husband not having obtained a prior divorce. In a contest between two women, each of whom claim to be the legal widow of decedent, held that, despite the presumption in favor of the legality of the second marriage, the evidence showed that there was no divorce, and that the second marriage was a bigamous one with Code 1858, section 4839. {Post, pp. 331-333.) Cases cited and approved: Gamble v. Rucker, 124 Tenn., 415; Smith v. Bank, 115 Tenn., 12; Johnson v. Johnson, 41 Tenn., 630. Code cited and construed: Sec. 4839 (1858). 5. MARRIAGE. There is no estoppel between two women, each of whom claims to be the legal wife of decedent. Where a man who had long been married celebrated a second marriage without the knowledge of his first wife, and when she discovered his relations with the other woman informed her that there was no marriage, held that under the circumstances there was no estoppel between the parties. {Post, p. 333.) Cases cited and approved: Sloan v. West, 50 Wash'., 86; Heisen v. Heisen, 145 Ill., 658.
142 Tenn. 335Peacock v. Joyce (1919)
1. INSURANCE. Statutes governing distribution of proceeds inapplicable to benefit certificate. Shannon’s Code, secs. 4030, 4232, providing that insurance on the life of a husband shall inure to the benefit of his widow and children or next of kin, does not apply to a certificate issued by a benefit society. (Post, p. —.-) Cases cited and approved: Harvey v. Harrison, 89 Tenn., 470; Rose v. 'Wortham, 95 Tenn., 505. Code cited and construed: Secs. 4030, 4232(S.). 2. INSURANCE. Proceeds of certificate not impressed with trust for support of children of first wife. Where, upon death of beneficiary wife before her husband, under the by-laws of the benefit society, his second wife was entitled to the proceeds of a benefit certificate, the fund was impressed with no trust for the support of the member’s children by a first marriage. (Post, p. —.) 3. INSURANCE. On death of wife named as beneficiary, second wife entitled to benefit. Under the by-laws of á benefit society providing that if the beneficiary died prior to the death of the member, the amount of the benefit should be paid to the widow, and if there was no widow to the children, where the member’s wife named as beneficiary died, and the member remarried, his second wife was entitled to the proceeds of the certificate as his widow in preference to the chil- ■ dren. (Post, p. —.)
142 Tenn. 341Keel v. Sutton (1919)
1. EJECTMENT. Complainant must recover on strength of own title. Complainants in ejectment must recover, if at all, on the strength of their own title. (Post, p. —.) 2. ADVERSE POSSESSION. Ejectment. Uninterrupted possession for twenty years evidences title and obviates necessity for paper writings. Where from long possession the presumption of a grant to complainants in ejectment arises, it is not necessary that they show title by paper writings; uninterrupted possession for twenty years being sufficient to evidence title and seisin m fee. (Post, p. —.) Cases cited and approved: Ecales v. Coekrill, 40 Tenn., 433-435; Marr v. Gilliam, 4i Tenn., 489. Case cited and distinguished: Cannon v. Phillips, 34 Tenn., 214. 3. EJECTMENT. Adverse possessors may maintain action as if deraigning title from State. Complainants in ejectment, by showing adverse possession for more than twenty years, became entitled to maintain their suit just as if a deraignment of title from the State had been made or a continuous adverse possession under registered color of title for the statutory period shown. (Post, p. —.) 4. NAVIGABLE WATERS. Title to land hot lost by reason of erosion or other submersion. Where land becomes submerged by reason of erosion or other cause, title is not lost in the owners and possessors, and when the land reappears, either by accretion or reliction, the owners are entitled to take possession of and hold the reclaimed property. (Post, p. —.) Cases cited and approved: Mulry v. Norton, 100 N. Y., 424; City of St. Louis v. ítutz, 138 U. S., 226. Case cited and distinguished: Stockley v. Cissna, 119 Fed., 831. 5. NAVIGABLE WATERS. Lapse of time during submersion does not prevent owner from reclaiming land on reappearance. Lapse of time during which land is covered with water does not prevent the original owner from reclaiming it and asserting title thereto when it reappears by accretion or reliction. (Post, P. —.) Cases cited and approved: State v. Pulp Co., (119 Tenn., 130; Stockley v. Cissna, 119 Tenn., 175. 6. ADVERSE POSSESSION. Claimants, relying solely on presumption from possession, are restricted to extent of actual possession. Complainants in ejectment, who present no deeds or other written evidence of title, and rely upon the presumption arising from possession for over twenty years, are restricted to the extent of their actual possession, and cannot recover up to claimed boundaries beyond. (Post, p. —.) 7. EJECTMENT. Claimants entitled to recover for use of land and value of house appropriated. Complainants in ejectment for land which they were forced to abandon on account of the inroads of a river, but which subsequently reappeared by accretion, are entitled to recover for the use of the land occupied by defendant and for the value of a house appropriated by defendant. (Post, p. • — .) 8. APPEAL AN DERROR. Statute providing appeals from courts of county shall be taken to Supreme Court sitting at particular city not unconstitutional. Priv. Acts 1919, chap. 617, providing that appeals from the courts of Shelby county shall be taken to the Supreme Court sitting at Nashville, held not violative of Constitution article 6, section 2, providing the Supreme Court shall be held at Knoxville, Nashville, and Jackson; the act not contravening such provision, but being within legislative determinations to expedite litigation and fundamental procedure. (Post, p. —.)
142 Tenn. 350Foster v. Roberts (1919)
1. TAXATION. Constitution inhibiting tax exemption of “property” not violated by exempting State bonds. Constitution article 2, section 28, declaring that all “property” shall be taxed, with an exception allowing exemption, among other things, of property held by the State or a subdivision, and used exclusively for public purposes, is not contravened by Pub. Acts 1919, chapter 114, declaring that bonds thereafter issued by the State shall not be taxed by the State or any of its subdivisions, and that they shall so state; the statute being referable to the State’s inherent power to make contracts referable to its credit, separate and distinct from that of taxation, and the State’s bonds not being property within the Constitution. (Post, p. —.) Acts cited and construed: Acts 1919, chs. 114, 122. Cases cited and approved: Keith v. Funding Board, 127 Tenn., 441; People v. Draper, 15 N. Y., 53.2-543; Thorpe v. Rutland & Burlington R. R. Co., 27 Vt., 140; Redistricting Cases, 111 Tenn., 234; Prescott v. Duncan, 126 Tenn., 106; Jackson v. Nimmo, 71 Tenn., 597; Bank v. Memphis, 116 Tenn., 641;’ Augusta v. Dunbar, 50 Ga., 387; Miller v. Wilson, 60 Ga., 505; Macon v. Jones, 67 Ga., 489; Penick v. Foster, 129 Ga., 217; State ex rel. Da Ponte v. Board of Assessors, 35 La. Ann., 651; State ex rel. La. Improvement Co. v. Board of Assessors, 111 La. Ann., 982; Pullen v. Cor poration Commissioners, 152 N. C., 548; Mercantile Bank v. New York, 121 IT. S., 138; McCulloch v. Maryland, 4 Wheat., 316; Weston v. Charleston, 2 Pet., 449; New York ex rel. v. Com’rs. of Taxes, 2 Black, 620; Home Ins. Co. v. N. Y., 134 U. S., 598; Nashville v. Smith, 86 Tenn., 213; Van Brocklin v. Anderson, 117 U. S., 151; Worcester v. Worcester, 116 Mass., 193; Trustees of Public Schools v. Taylor, 30 N. J. Eg., 618; People v. Doe G. 1034, 36 Cal., 221; Re First State Bank of Okla. City, 171 Pac., 864. Constitution cited and construed: Art. 2, sec. 28; Art. 10, sec. 6; Art. 5, sec. 50. Case cited and distinguished: Re Assessment of First National Bank of Chickasha, 58 Okla., 508. 2. COURTS. Doctrine of stare decisis not controlling. Erroneous decision as to effect of provision of Constitution is not to be followed under rule of stare decisis, where neither property rights have become vested under it nor acquiescence in it has had the effect of establishing rules of conduct. (Post, p. —.) Cases cited and approved: State ex rel. v. Nashville Baseball Club, 127 Tenn., 292; Arnold v. Knoxville, 115 Tenn., 195; Postal Telegraph Co. v. Farmville & P. R. Co., 96 Ya. 661; State v. Lewis, 69 Ohio St., 202; Young v. Downey, 150 Mo., 317; Burks v. Hinton, 77 Va., 1; Montgomery County Fiscal Ct. v. Trimble, 104 Ky., 629; Pratt v. Brown, 3 Wis., 603.
142 Tenn. 361Roberts v. Vaughn (1919)
1. WILLS. Counsel fees for infant contestant held payable pursuant to agreed judgment only out of proceeds of realty. Counsel for an infant contestant of a will pursuant to compromiso judgment can he paid for his services' only out of the proceeds of the real estate, the personal estate being consumed by other charges agreed to and made part of the judgment. (Post, p. 264.) 2. INFANTS. Next friend of infant contestant entitled to he reimbursed for expenses. The next friend of an infant contestant of a will is entitled to be reimbursed for his exxpenses actually paid. {Post, p. 365.) 3. INFANTS. Minor is liable for necessaries. An infant is liable for all necessaries. {Post, pp. 365, 366.) 4. INFANTS. One willing to be bound for costs can become next friend. Any one who is willing to be bound for costs can become next friend of an infant to procure any right in court which the infant has, though the court in its discretion may dismiss the suit or appoint another next friend if it- deems the one suing to be an improper person. {Post, pp. 365, 366.) 5. INFANTS. Next friend has power to appoint counsel to protect infant’s rights. The next friend of infant suing for him has full power to act to _ secure the infant’s rights, and may do all things necessary to such end. and appoint counsel for the infant, incapable of employing one for himself. {Post, pp. 365, 366.) 6. INFANTS. Next friend of infant will contestant entitled to compensation for services. The next friend of an infant contestant of a will, who secured to the infant a valuable estate by his services, is entitled to receive compensation from the infant, though his account should be scrutinized closely. (Post, pp. 365, 366.) Cases cited and approved: Mclsaac v. Adams, 190 Mass., 117; Owens et al. v. Gunther, 75 Ark., 37; Wheaton v. Bast, 13 Tenn., 61; White v. Flora, 2 Tenn., 426; Scott v. Buchanan, 30 Tenn., 471; Stephenson v. Stephenson, 4 Tenn., 123; Miles v. Kaigler, 18 Tenn., 10; Benton v. Pope, 24 Tenn., 393; Green v. Harrison, 35 Tenn., 132. 7. INFANTS. Next friend cannot bind infant by agreement with counsel for fees. The next friend of an infant cannot contract with counsel for the amount of his fees so as to bind the infant, as such fees must be allowed by the court after an investigation of their value. (Post, pp. 366, 367.) Cases cited and approved: Cole v. Superior Court, 63 Cal., 36; Richardson v. Tyson, 110 Wis., 572. 8. WILLS. Circuit court had jurisdiction to refer infant’s contest to clerk to fix counsel fees. Under Shannon’s Code, sections 6063, 6074, the circuit court, having had jurisdiction of contest of a will by an infant by next friend, also had jurisdiction to refer the case to its clerk, after a compromise judgment by agreement following several appeals, for the purpose of fixing fees of counsel employed by infant contestant’s next friend. (Post, pp. 367-369.) Code cited and construed: Secs. 6063, 6074(S.). 9. ATTORNEY AND CLIENT. Wills. Circuit court properly declared lien for counsel fees on part of estate secured to infant. Under Shannon’s Code, sections 3592al, 3592a2, on contest of a will by an infant, the circuit court properly declared a lien to secure fees of counsel, engaged by the infant’s next friend on the part of the estate secured to the infant by a compromise judgment; the lien could be granted by a court of law as well as equity, because given by statute. (Post, pp. 369-371.) 10.INFANTS. Legal services in will contest. Where services rendered by counsel for an infant contesting a will were necessaries, the infant is liable for their value in the same way that he is liable for other necessaries. (Post, pp. 369.371.) Cases cited and approved: Epperson v. Nugent, 57 Miss., 45; Mun-son v. Washband, 31 Conn., 303; Barker v. Hibbard, 54 N. H., 539; Jones v. Yore, 142 Mo., 38. Code cited and construed: Secs. 3592al, 3592a2(S.). 11. ATTORNEY AND CLIENT. Evidence held not to show payment in advance by widowed mother to attorneys for infant will contestant. Evidence held insufficient to show that certain attorneys, engaged by a widow, whose only child had been disinherited by her deceased husband, to contest the will disposing of an estate supposed to be worth between $30,000 and $40,000, and which ultimately was shown to be worth over $50,000, had been paid in advance by the widow by two payments of $50 in cash and two notes for $50 each. (Post, pp. 371-374.) 12. ATTORNEY AND CLIENT. Fee of substituted attorneys for infant will contestant not covered by contract with original attorney. Evidence field insufficient to show that the fees to be paid certain attorneys, for an infant will contestant, who took the place on death of the attorney engaged by the infant’s next friend, were covered by the contract with such deceased attorney engaged by the next friend. (Post, pp. 374-377.) 13. ATTORNEY AND CLIENT. $8,000 fee allowed lawyers for infant will contestant held not excessive. Eight thousand dollars in fees allowed by circuit court to three firms and two individual lawyers engaged in behalf of an infant in contesting his father’s will, which had disinherited him of an estate worth over $50,000, the services resulting in recovery by compromise for the infant of some $17,000 to $19,000, held not excessive. (Post, pp. 377-380.)
142 Tenn. 382Swift & Co. v. Haley (1919)
1. TAXATION. Act prohibiting re-assessment applies to merchant’s taxes assessed by county court clerk. Acts 1915, chap. 124, prohibiting back- or re-assessment of property assessed by the regularly constituted assessing authorities, is not limited to taxes assessed by the tax assessor, but applies also to the ad valorem taxes on merchants’ capital imposed by Acts 1907, chap. 602, secs. 26, 29, 30, which are assessed as well as collected by the county court clerk. {Post, pp. 386, 387.) Acts cited and construed:. Acts 1915, ch. 124; Acts 1907, ch. 602, secs. 26, 29, 30. 2. TAXATION. Act prohibiting re-assessment is not unconstitutional as permitting unequal taxation. Acts 1915, chap. 124, prohibiting the back- or re-assessment of taxes once assessed, does not violate .Constitution article 2, section 28, requiring all property to be taxed according to its value, to be ascertained as the Legislature shall direct, so that taxes shall be equal and uniform. {Post, pp. 387, 388.) Constitution cited and construed: Art. 2, sec. 28. 3. STATUTES. Amendment permitting reassessment of property fraudulently assessed held within title. The amendment of Acts 1915, chap. 124, prohibiting back- or re-assessment of property by Acts 1917, chap. 98, so as to except from the prohibition property inadequately assessed because of connivance or fraud is within the title of the act of 1915, “to prevent back- or re-assessment of real and personal property which has been assessed by the regularly constituted assessing authorities,” so that the amending act does not violate Constitution article 2, section 17, requiring the subject of an act to be expressed in its title. {Post, pp. 388-395.). Cases cited and approved; State v. Brown, 103 Tenn., 450; State v. Yardley, 95 Tenn., 546; State v. Bradt, 1Ó3 Tenn., 584; Hyman v. State, 87 Tenn., 109; Cannon v. Matties, 55 Tenn., 519; Railroad v. Crider, 91 Tenn., 494; State v. Yardley, 95 Tenn., 546; Bank v. Divine Grocery Co., 97 Tenn., 603; State v. Cumberland Club, 136 Tenn., 96. • Cases cited and distinguished: State ex rel. v. Schlitz Brewing Co., 104 Tenn., 715; Kizer v. State, 140 Tenn., 582. Constitution cited and construed: Art. 2, sec. 17.
142 Tenn. 397City of Nashville v. Black (1919)
1. MUNICIPAL CORPORATIONS. Turning team in middle of block, contrary to ordinance, negligence preventing recovery for injury. Violation of a city ordinance against turning a team in the middle of a block is negligence, and if proximately causing the' driver’s injury, from falling when a wheel went into a hole, will prevent recovery. (Post, pp. 400-403.) Cases cited and approved: Schmalzried v. White, 97 Tenn., 37; Adams V. Inn Co., 117 Tenn., 470. Case cited and distinguished: Carroll v. Boyle, 140 Tenn., 178. 2. MUNICIPAL CORPORATIONS. Proof of notice of injury from defective street condition precedent to right to recover. Under Pub. Acts 1913, chap. 55, inhibiting action against city.for injury from defective condition of .street, unless within ninety days after the injury written notice thereof be given the city, plaintiff has the burden of proof of notice, notwithstanding subsequent provision of the statute that failure to give the notice shall be a valid defense against liability. (Post, pp. 403-406.) Cases cited and approved: Mitchell v. Worcester, 129 Mass., 525; Schmidt v. Fremont, 70 Neb., 577; Forseyth v. Oswego, 107 App. Div., 187; Fort Worth v. Shero, 16 Tex. Civ. App., 487; Luke V. El Paso, 60 S. W„ 363; Hay v. Barahoo, 127 Wis., 1; Winter v. City of Niagara Falls, 190 N. Y., 198; Frasch v. New Ulm, 130 Minn., 41;' Nichols v. Minneapolis, 30 Minn., 545; Town v. City of Helena, 42 Mont., 127; White v. Mayor & City Council of Nashville, 134 Tenn., 688; Hughes v. City of Nashville, 137 Tenn., 177. Case cited and distinguished: City of Nashville v. Mrs. Clara Hull, MS. Dee., 1917.
142 Tenn. 408Thompson v. Concordia Fire Ins. (1919)
1. INSURANCE. Valued Policy. The effect of Acts 1909, chapter 447 (Thomp. Shan. Code, section 3348a), is to make every policy of fire insurance a valued policy, unless the contract falls within one of the exceptions permitted hy the act. (Post, p Acts cited and construed: Acts 1909, ch. 447. Code cited and construed: Secs. 3348a; 3348al (T. S.). 2. INSURANCE. Validity of provisions as to coinsurance. Coinsurance clauses may be lawfully inserted in fire insurance policies, and will be enforced by the courts in the absence of any statutory regulation of the subject. (Post, p. —.) 3. INSURANCE. Statute relating to coinsurance as part of contract. Thomp. Shan. Code, sections 3348a, 3348al and 3348a2, relating to coinsurance clauses and valuation in fire policies^ enters into and becomes a part of every fire insurance contract, and may be complied with, by every insurance company to obtain its- benefits. (Post, P. —.) Cases cited and approved: Duger v. Insurance Co., 95 Tenn., 245; Laurenzi v. Insurance Co., 131 Tenn., 644. 4. INSURANCE. Enforcement of coinsurance causes of fire policy. Since Thomp. Shan. Code, section 3348a, 3348al, and 3348a2, relating to coinsurance and valuation clauses in fire policies, permit the assured to be treated as a coinsurer only as to the difference between the amount of the proportion agreed to be maintained by assured and the insurance in force, a coinsurance clause limiting insurer’s liability to such proportion of the whole loss as the amount of insurance bore to the cash value of the whole property, is unenforceable, where the policy contained no stipulation as to any proportion of insurance to be carried by insured nor any agreement to maintain insurance equal to the cash value; no inference that the policy did not contain the entire contract being permissible in view of Acts 1907, chapter 441. (Post, p. ■ — .) Acts cited and construed: Acts 1907, ch. 441. Cases cited and approved: Jackson v. Loyal Additional Ben. Ass’n, • 140 Tenn., 495; Arnold v. Insurance Co., 131 Tenn., 720. 5. INSURANCE. Penalty for refusal of payment where novel question of liability raised. Where the question upon which liability of insurance company depended was a new one, the case was not one for a penalty. Post, P. —.)
142 Tenn. 416Beaver v. Hall (1919)
HABEAS CORPUS. Conviction not vacated because of invalidity of act creating court where no objection made. Conviction of defendants in the criminal court for Tipton county which the legislature had undertaken to create by Priv. Acts 1917, chapter 563, making county judge holding office under Acts 1905, Chapter 289, as amended by Priv. Acts 1911, chapter 607, ex officio judge of such criminal court, will not in habeas corpus proceedings be held void upon ground of invalidity of the act creating such court, where defendants did not object to the validity of the proceedings; the court being at least a de facto court until there has been a judicial determination of its invalidity. Acts cited and construed: Acts 1917, ch. 563; Acts 1905, ch. 289; Acts 1911, ch. 607. Cases cited and approved: State of Tennessee v. Clint Tipton, 217 S. W. -; Lang v. Bayonne, 15 L. R. A. (N. S.), 93; Barnes v. Savage, 77 Me., 212; Soper v. Lawrence, 98 Me., 268; State v. Carroll, 38 Conn., 449; Cincinnati, W. & Z. R. Co. v.' Clinton County Com’rs, 1 Ohio St., 77; The Flaucher Case, 56 N. J. Law, 244; Allison v. Corker, 67'N. J. Law, 596; State v. Pooler, 105 Me., 224; Lang v. City of Bayonne, 74 N. J. Law, 455. Cases cited and distinguished: Norton v. Shelby County, 118 U. S., 425; In re Norton, 64 Kan., 845; State v. Bates, 22 Utah, 65; Howard v. Burke, 140 Am. St. Rep., 164; State v. Pooler, 105 Me., 231; State v. Gardner, 54 Ohio St., 33; State v. Bailey, 106 Minn., 142; Burt v. Winona & St. P. R. Co., 31 Minn., 472; Lang v. Bayonne, 74 N. J. Law, 458.
142 Tenn. 444Ellett v. Embury & Maurey (1919)
1. EQUITY. Cross-bill in equity must be dismissed where based upon tort. Allegations construed to make a cross-bill one for misrepresentations made to one defendant by the agent of another defendant, making it ,one for fraud and deceit, of which an equity court had no jurisdiction, so that the cross-bill must be-dismissed. (Post, p. —.) Cases cited and approved: Swift & Co. v. Warehouse Co., 128 Tenn., 82. 2. FRAUD. Insufficiency of evidence to prove misrepresentation. In a suit to collect amount which plaintiff was forced to pay as a result of defendant’s failure to ship cotton to England by reason of an alleged breach of contract, evidence held not support a cross-bill by one defendant against another for misrepresentation ' by latter’s agent of the right to relet the contract for shipment of cotton to another with the understanding that it was to be transported under their contract with the steamship company giving the right to ship a certain amount within a certain month. (Post, P. — .) 8. APPEAL AND ERROR. Cross-complaint should be dismissed absolutely upon cross-complainant’s failure to sustain it by proof. Where cross-complainant with opportunity to sustain the allegations of its cross-bill by proof failed to do so, and where no reason appeared why said cross-bill should not have been dismissed absolutely, it will be so dismissed. (Post, p. —.) 4. COSTS. Not taxable against party not liable for anything in suit. Where the record discloses that one of the defendants could not bo held liable for anything, it was error to tax such defendant with costs. (Post, p. —.) 5. GUARANTY. Shipping. Evidence sufficient to sustain decree against steamship company and guarantors of freight rate for excess freight paid. Pacts in evidence held sufficient to sustain a decree for complainant against a steamship company for excess freight paid and against other defendants on their guaranty that freight would not exceed $1.70 per hundredweight. ( Post, p. —) 6. SHIPPING. Agency to confirm subletting of contract of affreightment established by evidence of custom of parties. Where the preponderance of the evidence shows that it was a custom of party soliciting freight from shippers to be forwarded to foreign ports to contract with the steamship company for the carriage of such freight, then to make or issue confirmation for reletting of such shipments to the railroad company, upon which the latter would issue through bills of lading, the steamship company cannot avoid liability on the ground that the confirmations to the railroad company for the reletting of shipment contract were issued by the soliciting company without authority. (Post, p. —.) 7. SHIPPING. Knowledge of the agent of steamship company in performance of duties is knowledge of principal. Where a railroad company acted on its own behalf and on behalf of a steamship company in issuing export bills of lading for cotton, and it had full knowledge of the issuance of confirmation of shipments by a soliciting company when issuing such bills of lading, the railroad company’s knowledge of such fact was the knowledge of the steamship company. (Post, p. —.) Cases cited and approved: Tagg v. Tennessee Nat. Bank, 56 Tenn., 479; Bank v. Sneed, 97 Tenn., 120; Willcox v. Hines, 100 Tenn., 524; Provident, etc., Society v. Edmonds, 95 Tenn., 53; Ins. Co. v. Bank, 88 Tenn., 369; Winchester v'. Winchester, 38 Tenn., 460; Odum v. Threshing Machine Co., (Tenn. Ch. App.), 36 S. W., 191. 8. SHIPPING. Estoppel of steamship company to deny obligation under bill of lading made by agent. A steamship company was estopped from denying its obligations to carry cotton under a through export bill of lading issued by a railroad company which was its agent for such transactions, and was liable for breach of such shipment contract. (Post, p. —.) 9. SHIPPING-. Unqualified denial of obligation under contract of af-freightment waives right to invoke arbitration clause thereof. Where a steamship company unqualifiedly denied any obligation upon its part to transport cotton at the rate fixed in a contract and refused to transport it until an additional amount was paid, it waived its right to invoke an arbitration clause of such contract. (Post, p. —.) 10. APPEAL AND ERROR. Party may not complain of evidence not prejudicial. A party may not complain of the admission of testimony which was not prejudicial. (Post, p. —.)
142 Tenn. 460Bewly-Darst Coal Co v. Chattanooga Gas Co. (1919)
1. SALES. A second contract for delivery of coal held an entirely new agreement. Where an original contract for delivery of 6,000 tons of coal in monthly installments for five months from April 1, 1917, which contained a strike clause, expired without delivery of the coal because of the strike in the mine, and thereafter the parties entered into-another agreement for delivery of the balance of coal at a less price, heJcL that the second agreement was an entirely separate contract. (Post, pp. 463, 464.) 2. WAR. A contract of sale of coal in excess of price fixed by proclamation is valid, but only for price proclaimed. On August 21, 1917, the President under the Lever Act (U. S. Comp. St. 1918, Comp. St. Ann. Supp. 1919, sections 3115Vse-3115yskk, 3115%l-3115y8r) fixed the price of coal at $2.80 a ton; thereafter complainant, who because of strike had failed to deliver all of the coal called for in previous contract, agreed to deliver the balance at $3.25 per' ton, instead of the old price of $4, and on December 3, 1917, the Fuel Administration raised the price to $3.50 per ton; held that, while the second contract was valid, no amount in excess of the governmental price fixed between August and December can be collected. (Post, pp. 464, 465.) S. WAR, Increase in governmental price will not warrant collection - in excess of price fixed by coal contract. Where a contract fixed the price of coal at $3.25 per ton, the fact that the Fuel Administration, operating under the Lever Act (U. S. Comp. St. 1918, Comp. St. Ann. Supp. 1919, sections 3115yse-3115%kk, 3115y8l-3115y8r), thereafter raised the pre-exist-ing price of $2.80 to $3.50 a ton will not warrant the seller in collecting $3.50 after the increase, but he is restricted to the contract price. (Post, p. 465.)
142 Tenn. 466State ex rel. Thomason v. Temple (1919)
1. TAXATION. Husband liable for only 1 per cent, on property under $25,000 received from wife; In view of preceding legislation, and notwithstanding Inheritance Tax Act, section -2, exempting property having a clear market value of less than $10,000 transferred to a wife, and to the direct descendants and ascendants, does not enumerate husband, it must be deemed, in view of section 3, subd. 1, declaring that, where the person or persons entitled are the husband, wife, or direct descendants, the tax shall be 1 per cent, on amounts from $10,000 to $25,000, that the Legislature inadvertently omitted the word “husband” from the enumeration in section 2, subd. 2, and hence the State can collect only 1 per cent, on property of ■ a value of less than $25,000 received by a huband from his wife. (Post, pp. 469-472.) 2. STATUTES. Statute to be construed to obviate repugnancy or inconsistency. A statute is to .be construed so as to give effect and meaning to every part, and words must be modified, altered, or supplied! so as to obviate any repugnancy or inconsistency. (Post, p. 472.) Cases cited and approved: Ashley v. State, 124 Tenn., 684; Riggins v. Tyler, 134 Tenn., 577; Continental Oil Co. v. Santa Fe, á A L. R. 404. 3. STATUTES. In determining meaning recourse may be had to policy of Legislature. For the purpose of determining the meaning, although not the validity, of a statute, recourse may be had to considerations of public policy and to the established policy of the Legislature, as disclosed by the general course of legislation^. • (Pgst, pp. ,472, 473.) 4. STATUTES. Statute may he construed -with respect to spirit, intention, and purpose. A statute may be construed where the language is not entirely clear with reference to the spirit, intention, and purpose. (.Post, p. 473.) Case cited and distinguished: Grannis v. Superior Court, 146., Cal., 247. 5. STATUTES. Apparent mistake on face may be corrected by reference to other parts. Where there is an apparent mistake on the face of a statute, the error may be corrected by reference to other parts of the enactment. (Post, p. 473.) Case cited and distinguished: Morris v. People, 4 Colo. App., 136. fi. STATUTES. Effect should be given to all parts; to avoid absurdity, or injustice, courts may resort to general view of entire act. Effect should be given to every portion of a statute, but if a literal constructitfn will make the act absurd, or lead to injustice, the courts may resort to construction from a general view of the entire act. (Post, p. 474.)
142 Tenn. 475City of Nashville v. Nashville Traction Co. (1919)
1. DAMAGES. Whether the amount specified in a bond is penalty does not depend on the particular words. In determining whether the amount specified in a bond for performance is a penalty or liquidated damages, the' particular words are not conclusive on the parties or the court. (Post, pp. 478-481.) 2. DAMAGES. Provision in bond given by traction company for construction of line held a penalty. Where a traction company, pursuant to an ordinance granting a franchise to construct and operate a street car line, executed a bond in the penalty of $200,000 to secure the city against any accident which might happen from use of electricity and for construction of the line, the bond requiring definite expenditures within fixed dates, the bond, in view of the fact that it contained a number of stipulations of varied degrees of importance and a single sum was payable for any breach, regardless of the importance of the convenants, must be deemed penal, and the city cannot recover without proof of special damage. (Post, pp. 478-481.) 3. DAMAGES. Sum disproportioned to damage is penalty. Where stipulated sum contained in a bond was out of the proportion of the damage sustained, it will be treated as a penalty. (Post, p. 481.) Cases cited and approved: Coal Creek Co. v. Tennessee Coal, etc., Co. 106 Tenn., 651; Schrimpf v. Tennessee Mfg. Co., 86 Tenn., 219; Tennessee Mfg, Co. v. James, 91 Tenn., 154; Kailroad v. ' Cabinet Co., 104 Tenn., 568; Vaulx v. Buntin, 127 Tenn., 118. 4. DAMAGES. Bond by traction company for construction of line held penal, though given to municipality. Where a traction company, under a franchise to construct lines on particular streets, executed á bond for $200,000 to secure the municipality against loss from use of electricity, and also to procure the company’s compliance with the regulation requiring stipulated expenditures within fixed time, the bond must be treated as penal, notwithstanding the rule that the bond given to secure performance of public work for the benefit of a municipality will be treated as liquidated damages, because of the difficulty of ascertaining the damage; the city in this case not taking the bond purely in a governmental capacity, but to protect itself against claims in its corporate capacity. {Post, p. 481.) Cases cited and approved: Clark v. Barnard, 108i U. S., 436; Salem v. Anson, 40 Or., 339; Nilson v. Jonesboro, 57 Ark., 168; City of Indianola v. Gulf Western, etc., R. Co., 56 Tex., 594; Madison v. American Sanitary Engineering Co., 118 Wis., 480; Brunswick v. Aetna Indemnity Co., 4 Ga. App., 722; Summit v. Morris County Traction Co., 85 N. J. Law, 193.
142 Tenn. 484Tennessee Cent. R. Co. v. Jenkins (1919)
CERTIORARI. Petition to supreme court filed after 90 days from final judgment of Court of Civil Appeals, based on refusal of rehearing, ■will be dismissed. "Where a final judgment of the Court of Civil Appeals was entered November 15, 1919, and a petition to rehear was filed forty-four days later, without an extension of time, a fiat from the presiding judge being obtained on petition to rehear, but an adjudication being expressly reserved, and the petition was subsequently dismissed, petition for certiorari could not be filed thereafter in the Supreme Court; more than ninety days having elapsed from the time of the final judgment of the Court of Civil Appeals, although not from the time of the dismissal of the petition to rehear.
142 Tenn. 487Choate v. Sewell (1919)
1. EQUITY. Procedure as to hearing on oral 'testimony in chancery held not affected hy statute. Acts 1917, chap. 119, relating to procedure in chancery, was not intended to and did not hare the effect of changing the forms of proof in the chancery court, and' it is only hy consent of the parties that a case in chancery can be heard on oral testimony in nonjury cases. (Post, p. 489.) Acts cited and construed: Acts 1917, ch. 119. Case cited and approved: Beatty v. Schenck, 127 Tenn., 63. Code cited and construed: Sec. 6272, (T.-S.). 2. APPEAL AND EEEOE. Pact finding hy chancellor after waiver of jury has same weight as verdict of jury. Where the parties to a case in chancery being entitled to trial hy jury agree to waive the presence of the jury and to submit the case to the chancellor, the case is still a jury case, and the chancellor’s finding of fact has the same weight as a verdict of a jury. (Post, pp. 489-492.) Cases cited and approved: Toomey v. Atyoe, 95 Tenn., 377; Slat-ton v. Tenn. Coal & Iron Co., 109 Tenn., 424; King v. Coleman, 84 Tenn., 571; Yaughn v. Vaughn, 100 Tenn., 282; Phillips v. Kim-monds, 94 Tenn., 565; City v. Manufacturing Co., 93 Tenn., 279; Brakefield v. Anderson, 87 Tenn., 209; Inman v. Tucker, 138 Tenn., 529; Ellege v. Cooke, 73 Tenn., 622; Cazassa v. Cazassa, 92 Tenn., 573; Bailey v. Henry, 125 Tenn., 390; Moore v. Burrow, ,89 Tenn., 105; Kittel v. Steger, 121 Tenn., 400; Haynes v. Jones, 39 Tenn., 372; O’Neal v. Breecheen, 64 Tenn., 604; Redman v. Bowles, 37 Tenn., 551; Sullivan v. Ivey, 34 Tenn., 487; Beard v. Bricker, 32 Tenn., 50; James v. Patterson, 31 Tenn., 309; Fain v. Headrick, 44 Tenn., 334. Code cited and construed: Sec. 4458 (T.-S.). S-. ADVERSE POSSESSION. Statute applies to entire parol gift of land whether inclosed or not. Thomp. Shan. Code. sec. 4458, providing that no person or any one claiming under him. shall have any action for any lands, tenements, or hereditaments but within seven years after the right of action has accrued, applies to & parol gift of land where the donee has entered into possession with the donor’s knowledge and is claiming adversely and to all the land embraced in the parol gift, whether it is under inclosure or not, the statute running against the right of repudiation. (Post, pp. 492, 493.)
142 Tenn. 494Stem v. Nashville Interurban Ry. (1919)
1. RAILROADS. Statutes regulating signals clonstrued liberally. Shannon’s Code, sec. 1574, subsecs. 1, 2, and sections 1575, 1576, requiring signs and signals at crossings, while in derogation of the common law, are also remedial in character, and are therefore entitled to a construction which, will not defeat the salutary purposes of their enactment. (Post, pp. 503, 504.) 2. STATUTES. Construed so as not to impair remedial nature of statute, though in derogation of common law.' The rule that statutes changing the common law should be strictly construed is not invariable, and does not apply when its application would tend to impair the remedial nature of the statute. (Post, pp. 503, 504.) Cases cited and approved: Ill. Cent. R. R. Co. v. Hudson, 136 Tenn., 18; Birmingham Ry., Light & Power Co. v. Ozburn, 4 Ala. App., 399; John v. So. Pac. Co., 196 U. S., 17; St. L., I. M. & S. R. R. Co. v. Conley, 187 Fed., 949; Behrens v. Ill. Cent. R. R. Co., 192 ■ Fed., 581. Codes cited and construed; Sec. 1574, subsecs. 1 & 2; secs. 1575, 1575 (S.), 3: RAILROADS. Regulations of “railroads” held applicable to in.terurban railroad. Shannon’s Code, sec. 1574, subsecs, 1, 2, and sections 1575, 1576, requiring signs and signals for prevention of crossing accidents on “railroad,” held applicable to an interurban electric railroad line extending 19.3 miles from Nashville to Franklin, only 2.8 miles of which are within the city limits of Nashville; th.e test of applicability being, not the motive power used, but the real character, business, and operation of the road, and whether the regulations are reasonably susceptible of application. (Post, pp, 504, 506.) ._ . ... Cases cited and approved: Malott v.. Collinsville, etc., R. Co., 108 Fed., 313; Com. v. Louisville & B. R. Co., 141 Ky., 583; Diebold v. Ky. Traction Co., 117 Ky., 146; L. & N. R. R. Co. v. Anchors, Adm’r, 114 Ala., 492; Simoneau v. Pacific R. Co., 159 Cal., 494; Muskogee E. T. Co. v. Doering, 172 Pac., 793; Hogan v. Railroad, 131 Tenn., 244; Hudson v. S. W. Mo. Railway Co., 173 Mo. App., 611; Campbell v. Greeneville, S. & A. Railway Co., 97 S. C., 383. 4. RAILROADS. No liability for failure to blow whistle for crossing not designated as public crossing. A railroad is not liable for death in crossing accident for failure to blow whistle at a distance of one-fourth of a mile from the crossing, as required by Shannon’s Code, sec. 1574, subsec. 2, where such crossing had not been designated as a public road crossing by the required sign by the road overseers, as required by subsection 1. {Post, pp. 506, 507.) 5. RAILROADS. Evidence held to show lookout and employment of every possible means to prevent crossing accident. In action for death of automobile passenger in crossing accident, evidence held to show that the railroad maintained a proper lookout by locomotive operators and employed every possible means to prevent the accident as required by Shannon’s Code, sec. 1574, subsec. 4. {Post, pp.„ 506, 507.) 6. RAILROADS. Common-law negligence actionable notwithstanding statute. A railroad may be liable for death in crossing accident by reason of common-law negligence, notwithstanding there is no statutory liability under Shannon’s Code, sec. 1574. Subsecs. 1, 2, 4, prescribing signs, signals, and lookouts for- prevention of such accidents. {Post, pp. 506, 507.) Cases cited and approved: Graves v. Railroad, 126 Tenn., 148; Patton v. Railway Co., 89 Tenn., 370; E. T„ V. & G. Railway Co. v. Pratt, 85 Tenn., 9; E. T„ Y. & G. Railway Co. v. Fain, 80 Tenn,, 35; Railroad v. Milam, 77 Tenn., 223-226; Chattanooga Rapid Transit Co. v. Walton, 105 Tenn., 415-427; Grippen v. N. Y. C. Railroad Co., 40 N. Y., 34; Thompson v. N. Y. C. & H. R. R. Co., 110 N. Y., 636. ....... 7. RAILROADS. Negligent speed at crossing held for jury. In an action against an intérurban railroad for death of automobile occupant, a common-law count alleging operation oyer an exceedingly dangerous crossing at a high and excessive rate of speed, supported by proof, held to present a question of fact for jury. (Post, pp. 507, 508.) Cases cited and approved: Railroad v. Porter, 117 Tenn:, 13.-20; Bruggeman v. Illinois Cent. R. R. Co., 147 Iowa, 187. 8. RAILROADS. Contributory negligende of automobile occupant held for jury. In an action for the death of an occupant of an automobile in a crossing accident, deceased’s contributory negligence held a question for jury. (Post, pp. 508, 509.) 9. NEGLIGENCE. Railroads. Automobile driver’s negligence not imputed to guest, but guest cannot rely on driver’s vigilance. Negligence of automobile driver cannot be imputed to his guest, but guest cannot rely upon the care and vigilance of driver to extent of relieving himself from the exercise of reasonable precautions for his own safety at a crossing. (Post, pp. 508, 509.) 10 RAILROADS. When traveler is required to look and listen at crossings. To look and listen for cars at crossings is a positive fixed duty when by such precautions they may be seen or heard, and in such cases a failure of observance will bar recovery, but where, because of conditions not created by or under the control of a traveler, to look and listen will not apprise him of danger, he may be excused from so doing. (Post, pp. 508, 509.)
142 Tenn. 510Cross v. State (1920)
1. CRIMINAL LAW. Confession induced Toy hope or fear incompetent. A confession not made freely or voluntarily, hut induced by hope • or fear, is not competent evidence against the accused. {Post, ■ pp. 511, 512.) Cases cited and distinguished: Deathridge v. State, 33 Tenn., 79; Strady v. State, 45 Tenn., 307; Self v. State, 65 Tenn., 253. 2. WITNESSES. Accused cannot be cross-examined as to incompetent confession for purpose of impeachment. Defendant in criminal prosecution who is witness in his own behalf cannot be compelled on cross-examination to testify to statements made out of court which amount to a confession of a crime, where such statements were induced by hope or fear, even though offered, not as a confession, but merely for the purpose of impeaching the witness. {Post, pp. 512-516.) Cases cited and distinguished: Harrold v. Oklahoma, 169 Fed., 47; People v. Yeaton, 75 Cal. 415; Shepherd v. State, 88, 185. 3. CRIMINAL LAW: Statement by accused on committing trial that he was guilty incompetent where no warning. It was error to permit a justice of peace to testify that he had read the warrant to the defendant when the committing trial was called and asked him whether he was guilty or not • guilty and that defendant had said that he pleaded guilty, where the justice had not complied with Tho.mp. Shan. Code, secs. 7008-7010, 7015, 7016, requiring magistrate to inform accused of his right to make a statement, aid of counsel, etc. {Post, pp. 516-519.) Case cited and approved: Nelson v. State, 32 Tenn., 237.
142 Tenn. 520Haumschilt v. State (1920)
1. COMMERCE. Transportation across state can foe forbidden only if use at destination was illegal. The State can forbid and punish the transportation of intoxicating liquor across the State and into another State only in case the proposed use in the State into which it was to be taken was contrary to law there, so that the transportation was deprived of the protection of the commerce clause of the federal Constitution by Webb-Kenyon Act (Comp. St. sec. 8739). (Post, pp. 522, 523.) ' Cases cited and approved: Kelly v. Rhoads, 188 U. S., 1; Bowman v. C. & N. W. R. Co., 125 U. S„ 465; Rhodes v. Iowa, 170 U. S., 412; Austin v. State, 101 Tenn., 563. Constitution cited and construed: Art. 1, sec. 8, subd. 3. 2. CRIMINAL LAW. Courts cannot judicially know the statutes of another state. Courts cannot judicially know the statutes of another State, so that a conviction for transporting liquor, which was intended to be taken into another State, cannot be sustained, in the absence of evidence of a statute of the latter State making the intended use of the liquor in that state unlawful. (Post, p. 523.) Case cited and approved: United States v. Gudger, 249 U. S., 373.
142 Tenn. 524Kellar v. Kellar (1920)
1. HUSBAND AND WIFE. Deed 'bo husband and wife creates tenancy in common. Tenancy by the entirety was abolished by Pub. Acts 1913, c. 26, emancipating married women, so that under a deed to husband and wife took as tenants in common. (Post, p. 525.) Acts cited and construed: Acts 1913, ch. 26. Case cited and approved: Gill v. McKinney, 140 Tenn., 549. 2. HOMESTEAD: None in land held by husband and wife in common Homestead'cannot exist in lands held by tenancy in common, though by husband and wife. (Post, pp. 525, 526.) Cases cited and approved: Avans v. Everett, 71 Tenn., 76; J. I. Case Co. v. Joyce, 89 Tenn., 3'37.
142 Tenn. 527State ex rel. Weldon v. Thomason (1919)
1. STATES. Compensation of Legislators cannot foe increased foeyond amount fixed foy Constitution. Constitution article 2, section 23, providing that legislators shall foe paid $4 per day and $4 for every 25 miles traveled, is mandator, and the Legislature cannot increase such compensation, either directly or indrectly. (Post, pp. 533, 534.) Case cited and distinguished: McHenderson v. Anderson County, 105 Tenn., 609. Constitution cited and construed: Sec. 23, art. 2. 2. OFFICERS. Salaries not increased during term. The acceptance of a public office at a fixed salary precludes the allowance of a greater or additional amount. (Post, pp. 533, 534.) S. STATES. No limitation in Constitution upon power of Legislature to appropriate for expenses of all departments. The Constitution of the State contains no inhibition, express or implied, upon the power of the Legislature to appropriate public funds for the expenses of all departments of the government, including those of its own members. (Post, p. 534.) 4. CONSTITUTIONAL LAW. Not source of legislative authority. The State Constitution is not the source of legislature authority, but is the inclusive embodiment of such prerogative of sovereignty as may be therein expressly or impliedly contained, and, as the representative of the people, the Legislature has the power to pass such laws as are not directly or impliedly in contravention of its mandates. (Post, pp. 534, 535.) Case cited and distinguished: Foster et al. v. Roberts, 142 Tenn., —. 5. OFFICERS. Expenses may be appropriated during term. Constitutional prohibitions against change in the compensation fixed for public officers are not intended to be construed as limitations upon the legislative authority to provide for the expenses of such officials. (Post, pp. 535, 536.) Cases cited and approved: Briscoe v. Clark Co., 95 Ill., 309; State ex rel. Coffin v. County Com’rs, 19 NNev., 332; Kirkwood v. Soto, 87 Cal., 394; Neuman v. Lester, 11 Cal. App., 577; People ex rel. Follett v. Fitch, 145 N. Y., 26l; State v. Sheldon, 78 Neb., 552; Ware v. Battle Creek, 20N1 Mich., 468; McCoy v. Handlin, 35 S. D.,'487; Milwaukee County v. Halsey, 149 Wis., 82-85; Russ v. Commonwealth, 210 Pa., 544. 6. CONSTITUTIONAL LAW Construction by Legislature acquiesced in by people, to be accepted by court. The construction of a constitutional provision by the Legislature extending over a long period of time, and acquiesced in by the people, is entitled to great weight in the courts, and, in the absence of some showing of palpable error, is to be accepted as a correct interpretation. (Post, pp. 536, 538.) Cases cited and approved: Railroad v. Hicks, 68 Tenn., 451; Richardson v. Young, 122 Tenn., 517;" Brown v. Sullivan County, 126 Tenn., 694; State ex rel. v. Baseball Club, 127 Tenn., 292; Al-bright v. County of Bedford, 106 Pa., 582; Johnson v. Black, 103 Va., 477; County of Cook v. Wren, 43 Ill. App., 388; McHender-son v. Anderson County, 105 Tenn., 591; Hope v. Hamilton County, 101 Tenn., 325; Woodward v. Williams, 30 Tenn., 325. 7. CONSTITUTIONAL LAW. States. Expenditure of public moneys under exclusive control of Legislature. The exclusive control of the expenditure of the public moneys is vested in the legislative branch of the government, and is the subject of limitation by the courts only so far as provided by the Constitution. (Post, p. 538.) 8. STATES. Appropriation of money for expenses to legislators valid. An appropriation of $150 to legislators for a certain year “for stenographic work and other necessary expenses” was not invalid as violating Constitution, article 2, section 23, providing compensation of legislators. (Post, pp. 538-540.) 9. CONSTITUTIONAL LAW. States. Presumed that Legislature acts in good faith in making appropriation. It is always to he presumed that the Legislature acted in good faith and within constitutional limits in making an appropriation, and a declaration in an appropriation bill that a sum specified was appropriated to legislators “for stenographic work and other necessary expenses” is a conclusive finding of fact, and imports a verity upon its face which cannot be impugned by litigants, counsel, or the courts. (Post, p. ■ — .) 10. STIPULATIONS. Will he rigidly enforced. Stipulations entered into between counsel with- reference to matters properly subject to agreement will be rigidly enforced by the courts. (Post, p. —.) 11. STIPULATIONS. Meaning of statute not subject of stipulation. The meaning of the language used in a statute from which the validity or invalidity of the act is to be determined is not the subject of an agreement by parties or counsel, but is to be found by the courts, as parties cannot agree upon the unconstitutionality of a statute, nor by their stipulations determine for the courts the judicial question as to what the action or intent of the lawmaking body is. (Post, p. —.) Cases cited and approved: Hickman v. Wright, 141 Tenn., 412; Motlow v.- State, 125 Tenn., 559; State v. Lindsay, 103 Tenn., 629; Lynn v. Polk, 76 Tenn., 121; Woodall v. Darst, 71 W. Ya., 350; Gas & Electric Co. v. Simpson, 118 Tenn., 532; Adams v. Clark, 36 Colo., 65; State v. Aloe, 152 Mo., 466; Jones v; Madison County. 72 Miss., 777-793; Wade v. Atlantic Lumber Co., 51 Fla., 638; Attorney-General v. Rice, 64 Mich., 385-391; State v. Schnitger, 16 Wyo., 479-503.
142 Tenn. 541Burns v. City of Nashville (1919)
1. MUNICIPAL CORPORATIONS. Motion to dismiss taxpayers’ suit on ground demand not made to sue in name of city properly overruled. In view of allegations of original and first and second amended hills by taxpayers of city against its mayor, board of commissioners, and others for mismanagement, embezzlement, the letting of illegal contracts, etc., held, that it would have been a useless formality for complainants to have made demand on commissioners to bring suit in name of the city, so that motions of defendants to dismiss third amended bill for lack of demand on proper officials of city to bring it were properly overruled, though, which third amended bill was filed, personnel of commissioners had change, and all except one commissioner were unconnected with illegal acts alleged. {Post, p. 573.) Acts cited and construed: Acts 1913, ch. 22. 2. EQUITY. Amended bill became part of original bill. Third amended bill became part of original bill, and matters set up in it must be deemed and treated as incorporated in original bill, and all bills must be treated as one pleading. (Post, p. 573.) 3. MUNICIPAL CORPORATIONS. Demand on officers by taxpayer of city that they bring suit unnecessary. Where suit by taxpayer would be antagonistic to interests of officers of the city, or circumstances are such that it cannot be brought or directed by such officers without serious embarrassment to them they are improper parties to bring it, and no demand on them by taxpayer is necessary as a condition to suing in his own name. (Post. pp. 574, 575.) Cases cited and approved: State v. Mitchell, 104 Tenn., 337; Slavin v. McGuire, Ann. Cas., 1913C, 912; Mock v. Santa Rosa, 126 Cal., 330; Loder v. McGovern, 48 N. J. Eq., 275; Bartee v. Tompkins, 36 Tenn., 636; Johnson v. Brown, 21 Tenn., 327. 4. APPEAL AND ERROR. Chancellor discretionary ruling that hill was not multifarious affirmed, though erroneous. Though matters incorporated in third amended hill of taxpayers of a city against the mayor, hoard of commissioners, and others, charging mismanagement, embezzlement, and illegal letting of contracts, were of such nature strictly speaking as to render hill multifarious, chancellor in exercise of his discretion having ruled against defendants' objection to bill on such ground, and in view of great expense necessitated if objection should be sustained, on appeal chancellor’s holding on question will be affirmed, particularly where no real prejudice resulted to defendant. (Post, p. 575.) Acts cited and construed: Acts 1911, ch. 32. 5. JURY. Two of several defendants in hill not entitled to jury trial. In suit by taxpayers of a city against the mayor, hoard of commissioners, and others on account of mismanagement, embezzlement, and the illegal letting of contracts, two defendants, a surety company and a paving contractor, held not entitled to trial by jury under Shannon’s Code, section 6282. (Post, pp. 576, 577.) Case cited and approved: Maine v. Gilman (C. C.), 11 Fed., 214. Code cited and construed: Sec. 6282(S.). 6. REMOVAL OF CAUSES. Petition of paving companies, defendants in taxpayers suit, properly disallowed. ' Where certain paving companies were being sued jointly by taxpayers with the commissioners of a city for recovery of money paid them on account of their performance of alleged illegal contracts which the commissioners undertook to enter into with them, their petition to have the suit as to them removed to the United States district Court was properly disallowed. (Post, pp. 577-580.) Acts cited and construed: Acts 1883, ch. 114; Acts 1913, ch, 22. Cases cited and approved: Chicago, B. & Q. R. Co. v. Willard, 220 U. S., 413; Sully v. Drennan et al., 113 U. S„ 293. 7. MUNICIPAL CORPORATIONS. Charter of Nashville did not authorize penalty for tax delinquencies. No penalty for delinquency in payment of taxes could be legally prescribed by authorities of city of Nashville under Nashville City Charter 1883 (Acts 1883, chapter 114), giving no authority to the mayor and city council in the premises. (Post, pp. 580, 581.) Acts cited and construed: Acts 1913, ch. 22. Cases cited and approved: Augusta vl Dunbar, 50 Ga., 387; Jefferson City v. Whipple, 71 Mo., 519; San Antonio v. Raley, 32 S. W., 180; Price v. Bellevue, 1 Ky. Law Rep., 276; Burlington v. Burlington & M. R. R. Co., 41 Iowa, 134. 8. MUNICIPAL CORPORATIONS.. Commissioners authorized to remit penalties and interest on tax delinquencies. If board of commissioners of city of Nashville, under its charter (Priv. Acts 1913, chapter 22), has power to affix penalties and interest for nonpayment of taxes, it also has power to remit such penalties by ordinance. (Post, p. 581.) 9. MUNICIPAL CORPORATIONS. Commissioners not liable for remission of penalties and interest on delinquent taxes under valid ordinance. • The board of commissioners of the city of Nashville are not liable for any penalties and interest on delinquent taxes remitted by them under a valid ordinance authorizing them so to do. (Post, pp. - 581, 582.) 10. MUNICIPAL CORPORATIONS. Ordinance authorizing remission of delinquent tax penalties presumed valid. In the absence of anything to the contrary, the court will presume . that an ordinance of the city of Nashville authorizing its board 'of commissioners to remit penalties and interest on delinquent taxes was valid. (Post, pp. 581, 582.) 11. MUNICIPAL CORPORATIONS. Commissioners not liable for remission of delinquent tax penalties and interest by comptroller. Commissioners of city of Nashville are not liable for penalties and interest on delinquent taxes wrongfully remitted by comptroller, unless they authorized him to commit such unauthorized act, or connived at it. (Post, pp. 582, 583.) 12. MUNICIPAL CORPORATIONS. Burden on taxpayers to show illegal remission of tax penalties and interest. Burden of proof was on taxpayers of a city, suing its mayor and board of commissioners for delinquent tax penalties and interest, to show that penalties and- interest were illegally remitted by defendants, and extent of such remissions. (Post, pp. 582, 583.) 13. MUNICIPAL CORPORATIONS. Prescription of patented material for paving did not invalidate contracts. Prescription by board of commissions of city of patented material for paving, incorparation of licensed mixture agreement in paving specifications, whereby the owner of such patented material agreed to furnish it to suchcessful bidder at specified price, and requirement from such bidder of maintenance bond guaranteeing work and material for five years, held not to render contracts for paving let by commissioners invalid as destroying competition, while city charter required all contracts for over ?500 should be advertised and let to the lowest and most responsible bidder. {Post, pp. 583-590.) Cases cited and approved: Johns v. City of Pendleton, 66 Or., 182; Saunders v. Iowa City, 134 Iowa, 132; Ford v. Great Falls, 46 Mont., 292; Tousey v. Indianapolis, 175 Ind., 295; Lacoste v. New Orleans, 119 La., 470; Reed v. Rockliff-Gibson Constr. Co., 25 Okl., 633; Holbrook v. Toledo, 28 Ohio Cir Ct., 284; Dillingham v. Mayor & City Council of Spartanburg et al., 75 S. C., 549; Barber Asphalt Paving Co. v. Louisville, 123 Ky., 687; Wilson v. Trenton, 61 N. J. Law, 599; Burkett v. City of Athens, 59 S. W., 667; Madison County v. Alexander, 116 Tenn., 685. Case cited and distinguished: Johns v. City of Pendleton, 66 Or., 182. Codes cited and construed: Secs. 1133-1135 (T.-S.). 14. MUNICIPAL CORPORATIONS. Contractors held not to have forfeited compensation because of interest of city officers.- Contractors with city of Nashville for paving and certain purchases, though members of board of commissioners and persons related to them within sixth civil-law degree were interested in contracts, in violation of Nashville City Charter (Priv. Acts 1913, chapter 22) section 16, held not to have forfeited their right to compensation because of irregularities in letting of contracts. (Post, pp. 590-602.) Cases cited and approved: Hitchcock v. Galveston, 96 U. S., 350, 351; Gas Co. v. San Francisco, 9 Cal., 453; Columbus Water Co. V. Columbus, 15 L. R. A., 354; Moore v. New York,.73 N. Y., 238; Sehipper v. Aurora, 6 L. R. A., 318; McDonald v. New York, 23 Am. Rep., 144; Gaslight Co. v. Memphis, 93 Tenn., 612; Dowell v. Portland, 13 Or., 248; Drainage Commrs. v. Lewis, 101 Ill. App., 150; Lincoln v. Village of Grant, 57 Neb., 70; Ward v. Town of Forest Grove, 20 Or., 3.55; Paul v. City of Kenosha, 22 Wis., 226; ^ Pittsburg, C. & St. L. R. Co. v. Bridge Co., 131 XT. S., 371; Dawson v. Waterworks Co., 106 Ga., 696; Ida Grove v. Ida Grove Armory Co., 146 Iowa, 690; Providence v. Providence Electric Light Co., 122 Ky., 237; Forrest City v. Orgill, 87 Ark., 389; Watterson v. Nashville, 106 Tenn., 410; Beazley v. Kennedy, 52 S. W., 791. Cases cited and distinguished: Gaslight Co. v. Memphis, 93 Tenn., 612; Land Co. v. Jellico, 103 Tenn., 320; Keenan & Wade v. City of Trenton, 130 Tenn., 71; Gas Company v. San Francisco, 9 Cal., 453; East St. Louis v. United States, 110 U. S., 321. 15. MUNICIPAL CORPORATIONS. Commissioners empowered to determine whether automobile necssary for their use. Despite Nashville City Charter (Priv. Acts 1913, chapter 22) section 15, held, that it was within power of city commissioners to determine whether or not automobiles were necessary for official use of themselves and heads of various departments under them, so that, having exercised their discretion in premises without fraudulent motive, their action cannot be reviewed. (Post, pp. 602-604.) 16. MUNICIPAL CORPORATIONS. Commissioners had discretion to determine whether trips to deliver bonds were proper. • It was within discretion of commissioners of city of Nashville, chartered by Priv. Acts 1913, chapter 22, to determine whether trips by them to New York to deliver bonds to bank were proper and necessary, so that their expenses were' properly paid by them, and are not recoverable by taxpayers. (Post, pp. 604-610.) 17. MUNICIPAL CORPORATIONS. Expense of commissioners on trip to deliver bonds not unreasonable. Total of expenses of two trips to New York to deliver bonds to bankers, made by commissioners of .city of Nashville, amounting to $2,815, held not unreasonable, particularly in view of fact that it included expense of one commissioner who went aiong to see how streets in New York City and Buffalo were repaired. (Post, pp. 604-610.) 18. MUNICIPAL CORPORATIONS. Commissioners not chargeable with entire expense of .trips on account of improper items. Commissioners of city of Nashville, who twice went to New York Yol.' 142 Tenn. — 35 City at. city’s expense to deliver bonds to bankers, held not chargeable with expense of entire trip, on account of charges for a dinner at a hotel for the bankers and a trip to Chinatown given by the mayor. (Post, pp. 604-610.) Cases cited and approved: Louisville Bridge Co. v. Louisville, etc., Co., 116 Ky., 258; Railroad v. Keyes (C. C.), 91 Fed., 47. 19. EVIDENCE. Testimony as to complicated accounts not inadmissible because accounts not in evidence. In suit by taxpayers of city of Nashville to recover from a commissioner and the city treasurer moneys alleged to have been embezzled, admission of testimony of auditor having charge of examination of books óf city held not erroneous though books, records, and papers were not offered in evidence; examination having’ been conducted in only practical way, and commissioner and treasurer having had full opportuntiy to examine books and papers as to which witness testified, they being in vault adjoining room in which testimony was taken. (Post, p. 610.) 20. MUNICIPAL CORPORATIONS. Taxpayers, suing for embezzled moneys, not required to call embezzlers witnesses to books. In suit by taxpayers of city against a commissioner and the city treasurer to recover moneys embezzled, complainants were not bound to call alleged embezzlers as witnesses to testify as to entries in city’s books bearing on their abstractions, and not required to introduce subordinates of such embezzlers to prove entries in books and records. (Post, pp. 610-618.) Cases cited and approved: Bank v. Bank, 108 Tenn., 380; Heike V. United States, 227 U. S., 181; "Weakley v.' Cherry Twp., 62 Kan., 867; Readfield v. Shaver, 50 Me., 36; Pine County v. Willard, 39 Minn., 125; Heppe y. John, 73 Cal., 265; Fox Dist. Twp. v. Mc-Cord, 54 Iowa, 346. 21. OFFICERS. Last Surety responsible for money in his hands when bond executed. Where officers served several successive terms, giving bond with different sureties for each term, sureties on bond for last term are responsible for money in hands of officer at execution of bond, presumption being that he had in his hands moneys which he should have had at beginning of term covered by bond, and to relieve themselves such sureties must show that defalcation in fact occurred during a prior term. (Post, pp. 615, 616.) 22. MUNICIPAL CORPORATIONS. Abstraction of money by comptroller constituted breach of bond. Where comptroller of city of Nashville, with assistance of employee of office and auditor, abstracted cash from office, taking its place with taxpayer’s checks not entered in the books, there was breach of comptroller’s officer bond to well and faithfully perform duties of comptroller agreeably to the laws, ordinances, and charter of city, rendering surety company liable. (Post, pp. 615, 616.) 23. APPEAL AND ERROR. Denial of jury trial to defendant harmless. In suit by taxpayers of city of Nashville against commissioners, comptroller, and others for mismanamagement, embezzlement, and •the making of illegal contracts, action of chancellor in refusing comptroller’s surety a jury trial held not prejudicial to it, so that reversal could not be had therefor under Acts 1911, chapter 32, and rule 14, subsecs. 4, 6, of the Supreme Court (126 Tenn., 722, 160 S. W., ix). (Post, pp. 616, 617.) Acts cited and construed: Acts 1911, ch. 32. 24. MUNICIPAL CORPORATIONS.. Embezzling officers appropriately charged with reproducing records destroyed. At suit of taxpayers, chancellor properly decreed, against comptroller of a city, the auditor, and another, recovery of $45,0000, costs of reproducing books of city destroyed by defendants to conceal embezzlements. (Post, p. 617.) 25. COSTS. Transcript of testimony ordered by judge not taxable as costs. Ijl suit by taxpayer of city against commissioners and comptroller for mismanagement, embezzlement, and letting of illegal contracts, chancellor error in rendering decrees against all defendants for costs of transcript of portion of testimony furnished chancellor over exception of defendants by court reporter, and in taxing item as part of cost of cause; there being no provision for payment of stenographer by either party, except that .contained in Thomp. Shan. Code, sections 4695, 4697. (Post, pp. 617, 618.) 26. INJUNCTION. Temporary injunction, not supported by proof, im-property left in force. In suit by taxpayers of city of Nashville against commissioners and others on account of mismanagement, embezzlement, and letting of illegal' contracts, where defendant commissioners denied allegation they had purchased any properties with money belonging to city, and there was no proof offered by complainants to support it, chancellor error in not dissolving the injunction restraining the commissioners from disposing of any of their property. {Post, pp. 618, 619.)
142 Tenn. 620Hilson v. City of Memphis (1919)
1. MUNICIPAL CORPORATIONS. Written notice to city of plaintiff’s injuries held insufficient. Written notice to city that plaintiff “was very hadly hurt” held insufficient under Acts 1913, chapter 55, requiring such notice to . - state “the general nature of the injury inflicted.” {Post, pp. 629, 630.) Acts cited and construed: Acts 1913, ch. 55. Cases cited and approved: Spéar v. Westbrook, 104 Me., 496; Tat-tan v. Detroit, 128 Mich., 650; Oesterreich v. Detroit, 137 Mich., 415; Wood v. Stafford Springs, 74 Conn., 437; Burnette v. St. Joseph, 112 Mo. App., 668; White v. JSTashville, 134 Tenn., 688; McCarty v. Town of Mountain View, 136 Tenn., 133; Hughes v. City of Nashville, 137 Tenn., 177. Cases cited and distinguished: Goodwin v. Gariner, 84 Me., 278; Graves v. Waitsfield, 81 Vt., 84. 2. MUNICIPAL CORPORATIONS. Dismissal of personal injury action against city for insufficiency of written notice held proper. Dismissal of action against city for injuries causes by defective manhole cover for plaintiff’s failure to have given city sufficient written notice of injury under Acts 1913, chapter 55, held proper as against contention that no notice was necessary in such case, where the evidence failed to show whether the defect was a latent one or a patent one, or whether cover was defective at time manhole was constructed or had become defective by reason of a blow it had sustained, or how long defect had existed prior to accident. {Post, p. 630. ) 3. MUNICIPAL CORPORATIONS. When written notice to city of injuries sustained is not necessary. In order to relieve injured person from the necessity of giving the written notice to city required by Acts 1913, chapter 55, it must appear that the injury 'complained of was the direct and proximate result of an act committeed hy the city itself, such as maintaining an obstruction in the street, etc. (.Post, pp. 630, 631.) 4. MUNICIPAL CORPORATIONS. Insufficiency of written notice to city of injuries not waived hy physician’s examination and report to city attorney. City did not waive defect in written notice of injuries repuired by Acts 1913, chapter 55, by having a physician examine plaintiff and submit written report of plaintiff’s injuries and condition to city attorney prior to the trial. (Post, pp. 631, 632.) Acts cited and constructed: Acts 1913, ch. 55. Cases cited and approved: Reid v. Kansas City, 195 Mo. App., 457; City of Rushville v. Morrow, 54 Ind. App., 538. 5. MUNICIPAL CORPORATIONS. Evidence held to sustain finding that city had no notice of defect in manhole cover. In action against city for injuries from defective manhole cover constituting a part of sidewalk, evidence held to sustain finding that city had neither actual or constructive notice of the defect in the sidewalk or manhole, in that it failed to show to what defect was due and for how-long it had existed or that it could have been discovered by inspection. (Post, p. 632. ) 6. MUNICIPAL CORPORATIONS. Plaintiff injured from defect not caused by city’s negligent construction has burden of showing knowledge of defect by city. In action against the city for injuries caused by defective manhole cover, where it did not appear that the defect was due to the negligent construction of the sidewalk or manholde by the city, plaintiff had the burden of proving that the city had actual or constructive knowledge of the defect. (Post, p. 632.) - '
142 Tenn. 633Fairbanks, Morse & Co. v. Gambill (1919)
1. PLEADING. Plea in abatement waived by disregard of it by all parties. Where no replication was filed to plea in abatement and no action thereon invoked after it was filed, but it was entirely ignored by the parties and the court, and the’ case proceeded with on the merits, the plea in abatement was waived. (Post, pp. 633-641.) 2. APPEAL AND E!RROE. Evidence of party recovering verdict must be accepted. The Supreme Court must, after verdict for plaintiff, accept as the the established facts in the case the version of the plaintiff as to controverted question of fact. (Post, pp. 641, 642.) 3. NEGLIGENCE. Proximate cause for jury, unless undisputed facts are susceptible of but one inference. Where the facts are controverted and of such a character that different minds might reasonably draw different conclusions therefrom, the question of proximate cause is for the jury, but when the facts are undisputed and are susceptible of but one inference, the question is one of law for the court, and the same rule applies where an independent intervening cause is relied on by defendant. (Post, pp. 642, 643.) Cases cited and approved: J. S. Moody and J. M. Horn v. Gulf Refining Co., 218 S. W., 817; Teis v. Smuggler Min. Co., 158 Fed., 260; Pilmer v. Boise Traction Co., 14 Idaho, 327; Stone v. Boston, etc., R. Co., 171 Mass., 536; Huber v. La Crosse City R. Co., 92 Wis., 636; Snyder v. Colorado Springs, etc., R. Co., 36 Colo., 288; Clark v. Wallace, 51 Colo., 437; Illinois Cent. R. Co., v. Siler, 229 Ill., 390; Coy v. Indianapolis Gas Co., 146 Ind., 655; Mo. Pac. R. Co. v. Columbia, 65 Kan., 390; Stone v. Boston, etc., R. Co., 171 Mass., 536; Smith v. Public Service Corp., 78 N. J.' Law, 478. 4. NEGLIGENCE. “Proximate cause” defined. “Proximate cause” is one of which the injury is a natural and probable consequence, such a consequence as, under the circumstances might and ought to have been foreseen by the wrongdoer. (Post, pp. 643, 644.) Cases cited and approved: Hoag v. Lake Shore & M. S. R. Co., 85 Pa., 293; Railroad v. Kelly, 91 Tenn., 699; Anderson v. Miller, 96 Tenn., 35; Chattanooga Light, etc., Co. v. Hodges, 109 Tenn., 331. Case cited and distinguished: Deming v. Merchants’ Cotton Press., etc., Co., 90 Tenn., 306. 5. EXPLOSIVES. Proximate cause of injury held for jury. Where defendant left with plaintiff a can containing gasoline which he stated did not contain any dangerous or explosive substance, and plaintiff, mistaking the can for an oil can of his own, poured it on kindling to light a fire, from which an explosion resulted, the question whether defendant’s wrongful act was a proximate cause of the injury was properly submitted to the jury. (Post, • pp. 644-646.) Cases Cited and distinguished: Waters-Pierce Oil Co. v. Deselmes, 18 Okla., 107; Ellis v. Republic Oil Co., 133 Iowa, 11; Peterson v. Standard Oil Co., 55 Or., 511. 6. EXPLOSIVES. Not contributory negligence in law to use kerosene to kindle fire. It was not contributory negligence as a matter of law for plaintiff to use kerosene to kindle a fire, or to pick up a can of gasoline, left by defendant with the statement that it contained nothing explosive which had been placed where plaintiff ordinarily kept his kerosene can of similar appearance. (Post, pp. 646-648.) 7. NEGLIGENCE. Contributory negligence no defense to wanton misconduct. Statement by defendant that a can containing gasoline contained no dangerous or explosive substance constituted willfulness, wan-toness, and recklessness on bis part, so that be cannot rely on plaintiffs contributory negligence as a defense to liability for injuries caused thereby. {Post, pp. 646-648.) Cases cited and approved: Railroad v. Roe, 118 Tenn., 601; Birmingham R. etc., Co. v. Jung, 161 Ala., 461. 8. DAMAGES. $5,000 for bums on arm and face held excessive by $2,500. A verdict awarding $5,000 damages for second degree burns on the arms and first degree burns on the face, which caused considerable pain, but which had entirely healed without permanent injury, •leaving only small scars, held excessive, and reduced to $2,500. {Post, pp. 648, 649-.)
142 Tenn. 650Lansden v. City of Jackson (1920)
1. MUNICIPAL CORPORATIONS One city commissioner cannot waive requirement of notice of injury. Even if the statutory requirement of notice to a city of claim for personal injuries can be waived by the governing body of the city, one of the city commissioners had no authority to waive such requirement. (Post, pp. 655-657.) Cases cited and approved: Gay v. Cambridge, 128 Mass., 387; Walters v. Ottowa, 240 Ill., 259; Lucas v. Pontiac, 142 Ill. App., 470; Starling v. Bedford, 94 Iowa, 194; Huntington v. Calais, 105 Me., 144 Blumrich v. Highland Park, 131 Mich., 209; Blair v. Ft. Wayne, 51 Ind. App., 652; White v. Nashville, 134 Tenn., 688-695; Sachem v. Seymour, 24 N. J. R„ 153; Mayor, etc., v. Hagan, 68 Tenn., 495; Belote v. Wynne, 15 Tenn., 341; Muse v. Donelson, 21 Tenn., 166. Cases cited and distinguished: Nashville v. Toney, 78 Tenn., 643; Taylor v. Railroad, 86 Tenn., 249; Cole v. Seattle, 64 Wash., 1. 2. MUNICIPAL CORPORATIONS. Ratification of commissioner’s promise to pay hospital expenses does not waive notice of injury. Ratification by the governing body of the city of the promise of the commissioners that the city would pay the hospital expenses of plaintiff for an examination of her injuries is not a waiver of the requirement that notice of claim for injuries be given the city. (Post, pp. 657, 658.) 3. MUNICIPAL CORPORATIONS. Owner’s waiver of right to notioe can he ratified only hy formal action. A municipality can, in the absence of fraud or imposition, ratify an act of its officer in waiveing the statutory requirement of notice of claim for injuries only by formal action taken by the proper officials. (Post, pp. 657, 658.)
142 Tenn. 659State v. Covington (1920)
CRIMINAL LAW. Acquittal l)ar to prosecution for offense arising out of same transaction. Defendant having been acquitted on a charge of violating the Act of 1917, chapter 12, which in sections 1, 2, and 3 denounces the offenses of receiving, possessing, and transporting liquors, cannot, though only one of the three separate offenses was charged, be prosecuted for others denounced arising out of the same transaction, for section 6 limits the fine in such cases to $500 and transaction to six months, and to allow the state to split the same transaction into three indictments might result in the imposition of triple penalty. Acts cited and construed: Acts 1917, ch. 12; Acts 1833, ch. 10, sec! 2. Case cited and approved: Hite v. State, 17 Tenn., 379. Case cited and distinguished: Fiddler v. State, 26 Tenn., 508.
142 Tenn. 665World Granite Co. v. Morris Bros. (1919)
FROM SHELBY Appeal from the Chancery Court of Shelby County.— Hon. F. H. Heiskell, Chancellor.
142 Tenn. 670Boyd v. McCarty (1919)
1. LANDLORD AND TENANT. Lessees, knowing premises dilapidated, took them at their own risk. Where a florist and his successor, at time of lease and transfer, knew leased premises were dilapidated, and lease contained no covenant hy landlord to make repairs, florist and successor took premises at their own risk, and there was no implied covenant hy landlord that they were fit for the purpose for which rented so that florist could not recoup for damages when hricks fell from the house to the greenhouse against landlord’s demand for rent. {Post, p.— Cases cited and distinguished: Schmalzried v. White, 97 Tenn., 36; Edwards v. N. Y. & H. R. R. R., 98 N. Y., 245; Jaffe v. Hartean, 56 N. Y., 398; Francis v. Cockrill, L. R, 5, Q. B. 501; Keates v. Cadogan, 10 C. B., 591. 2. LANDLORD AND TENANT. Failure to repair not a constructive eviction. Failure of landlord to repair premises was not a constructive a eviction of the lessees, where the dilapidated condition of the premises was not the result of any wrongful act of the landlord, who was not under obligation, express or implied, to repair. {Post, p. 675.) 3. LANDLORD AND TENANT. Subsequent promise of landlord to repair void as without consideration. Where the lessees of a brick house and greenhouse gave notes for the rent, the subsequent promise of the landlord’s son, as her agent, to make repairs, was without consideration, and imposed no obligation on the landlord. {Post, pp. 675, 676.) Cases cited and approved: Gregor v. Cady, 82 Me., 131; Eblin v. Miller, 78 Ky., 371; Proctor v. Keith, 12 B. Mon. (Ky.), 252 Ehinger v. Bahl, 208 Pa., 250; Beakes v. Holzman, 47 Miss. Rep., 384. 4. LANDLORD AND TENANT. Threat of condemnation does not affect rights of parties. Since the destruction of leased property by municipal action does not relieve the tenant from the obligations of his lease, mere threat of condemnation does not affect the contract rights of the parties. (Post, ¶¶. 676, 677.) Cases cited and approved: Banks v. White 33 Tenn., 6X3; Willcox v. Hines, 100 Tenn., 524; Hines v. Willcox, 96 Tenn., 148.
142 Tenn. 678F. W. Woolworth Co. v. Connors (1919)
1. MALICIOUS PROSECUTION. “Probable cause” defined. The existence of “probable causé,” which is the existence of such facts and circumstances as would excite in a reasonable mind the belief that the person charged was guilty of crime, is a complete defense, though the person is innocent. (Post, pp. 681-684.) Cases cited and distinguished: Kelton v. Bevins, 3 Tenn., 90; Raul-ston v. Jackson, 33 Tenn., 128; Hall v. Hawkins, 24 Tenn., 357. 2. MALICIOUS PROSECUTION. Probable cause for prosecution for theft held to have existed. Where braid was taken from a counter of defendant’s store, ana the manager was informed by two trusted employees that plaintiff, a stranger, who attempted to leave the store, took the braid, which was found at another counter, there was probable cause for institution of a prosecution against plaintiff for theft. (Post, pp. 684, 685.) 3. MALICIOUS PROSECUTION. Probable cause a mixed question of law and fact. The question of probable cause is a mixed question of law and fact, and whether the circumstances alleged to show it are true and existed is a matter of fact; but whether, supposing them to be true, they amount to a probable cause, is a question of law. (Post, pp. 684, 685.) Case cited and distinguished: Cooper v. Flemming, 114 Tenn., 40. 4. APPEAL AND ERROR. Judgment reversed, without remand, though motion for new trial did not specify error in refusing peremptory instruction. In an action for malicious prosecution, where defendant moved for peremptory instructions, the appellate court may reverse a judgment for plaintiff, without remand, where the facts established that there was probable cause, though the motion for a new trial did not allege errer in refusing the peremptory- instructions, where it did assert that probable cause was established, and there was no evidence to support verdict. (Post, pp. 686-688.) 5. NEW TRIAL. Judgment may he rendered for defendant on motion for new trial, defense being established. Where there was no evidence to support a verdict for plaintiff, and a defense was established by the uncontradicted facts, it is proper, on motion for new trial, for the court to render judgment for defendant. (Post pp. 686-688.) 6. APPEAL AND ERROR. Refusal of peremptory instruction must he assigned in motion for new trial. For the appellate court to review the refusal of a peremptory instruction, it should be assigned as error in motion for new trial, for the purpose of giving the lower court an opportunity to correct the error. (Post, pp. 686-688.) ■ Case cited and approved: Barnes v. Noel, 131 Tenn., 130. Case cited and distinguished: Southern Railway Co. v. Lewis & Adock Co., 139 Tenn., 44 .
142 Tenn. 689National Refining Co. v. Littlefield (1919)
1. EXCEPTIONS, BILL OF. Must foe filed within term unless time is extended. The hill of exceptions must foe filed during the trial term or within such additional time not exceeding sixty days as the court may grant, under the authorty of Pub. Acts 1917, chapter 49. {Post, -p. 692.) Acts cited and construed: Acts 1917, ch. 49. Case cited and approved: Dunn v. State, 127 Tenn., 267. Code cited and construed: Secs. 136, 137 (S.). 2. EXCEPTIONS, BILL OF. Continuing motion for new trial to next term does not extent time for hill. Pufo. Acts 1899, chapter 40, providing that, when a case is on trial when the term expires, the term shall foe continued for the purpose of disposing of the case, does not permit the filing of a hill of exceptions after the expiration of the trial term without an order extending the time merely because the court continued until the next term the determination of the pending motion for new trial. (Post, pp. 692-694.) Acts cited and construed: Acts 1899, ch. 40. Cases cited and approved: Dunn v. State, 127 Tenn., 272; Rhinehart" v. State, 122 Tenn., 698. 3. EXCEPTIONS, BILL OF. Can foe filed after denial of new trial at subsequent term only by leave. Pub. Acts 1919, chapter 157, providing that, when a motion for new trial is overruled at a subsequent term of the court, a party may by leave of the court have a bill of exceptions within thirty days from the decision of the motion, does not- entitle - the party to a bill of exceptions unless leave of court was applied for and granted. (Post, pp. 694, 695.) Acts cited and construed: Acts 1919, cli. 157.
142 Tenn. 696Dunlap v. Sawvel (1919)
1. PUBLIC LANDS. Where complainants derive title from grant, burden is on defendants to show exclusions from grant. Where complainants show a perfect chain of title through their ancestors from the state under a grant which excludes prior legal claims, the burden of proof to show these prior legal claims is on defendants, who must show that these exclusions cover certain specific tracts. (Post, pp. 700-702.) Cases cited and approved: Kobbe v. Land Co., 139 Tenn., 266; Iron & Coal Co. v. Schwoon, 124 Tenn., 209; Bowman v. Bowman, 40 Tenn., 48; Fowler v. Nixon, 54 Tenn., 719; Bleidorn v. Pilot Mountain, etc., 89 Tenn., 166; Wright v. Hearst, 122 Tenn., 656. 2. ESTOPPEL. Must be pleaded. Estoppel, as estoppel to claim land because of prior conveyance thereof, to be available must be especially pleaded. (Post, pp. 702-704.) Cases cited and approved: Turley v. Turley, 85 Tenn., 261; Jourol-mon v. Massengill, 86 Tenn., 81; 3. EVIDENCE. Proof of loss of entry taker’s books may be made by last custodian thereof. To render admissible other evidence of entries and grants of public lands, it was competent to prove by^the last custodian of the records of the entry taker’s books that said books were lost or destroyed. (Post, pp. 704-707.) Case cited and distinguished: Duncan & Mills v. Blair, 2 Overton, 213. 4. EVIDENCE. County surveyors presumed to do their duty; copies of surveys admissible as evidence of entries of public lands where records are lost. Where neither original entries of public lands nor duly certified copies thereof could be found because of the loss during the Civil War of tie entry taker’s books, copies of surveys by county surveyor of tie entries was tie next best evidence of tlie fact that the entries were made and of their contents, since surveyors, in making a survey, act independent of the claimants of the land, and are legally presumed to do their duty.. (Post, pp. 707-709.) Cases cited and approved: Rogers v. Jennings, 11 Tenn., 308. Loyd. V. Anglin, 15 Tenn., 428; Mitchell v. Lipe, 16 Tenn., 179; Frierson v. Galbraith, 80 Tenn., 129; State v. Myers, 85 Tenn., 203. Case cited and distinguished: Blount v. Ramsey, 3 Tenn., 498. 5. PUBLIC LANDS. Where initial entry is special, all other entries in “checkerboard system” are special. Where an initial entry is a special entry, all the other entries in a “checkerboard system,” dependent thereon, are thereby made special entries, and entries based on the “checkerboard system” are valid. (Post, p. 709.) Cases cited and approved: Iron Co. v. Railroad, 131 Tenn., 221; Coal Co. v. Scott, 121 Tenn., 88; Harriman Land Co. v. Quinn, — Tenn. —. 6. PUBLIC LANDS. Where entries are special, grant relate hack to time of entry. Where the entries on which grants are based are special, the grants relate back to the date of entry, and therefore are the better title to the lands, as against a grant excluding prior legal claims. (Post, pp. 709, 710.) Case cited and approved: Wright v. Hurst, 122 Tenn., 669. •