143 Tenn.

Volume 143 — Tennessee Reports

60 opinions

143 Tenn. 1McCulley v. Hardeman (1920)
t. HUSBAND AND WIFE. Conveyance by husband of property excepted by antenuptial contract not fraud. Where a few days before celebrating the marriage the parties en. tered into a contract providing that the prospective wife should not share in specified real property, the husband’s conveyance before marriage of such property was riot a fraud on any of the marital rights of the wife. (Post, pp. 1-6.) 2. DOWER. Statutes in derogation should be strictly construed. A statute in derogation of the widow’s common-law right of dower should he so construed in so far as to protect her fully in said right. (Post. pp. 6-10.) 3. DOWER,. Essentials are marriage, death, seizin and possession. Under Shannon’s Code, section 4139 (Act of 1784), providing that if any person die intestate leaving a widow she shall be entitled to dower in all the lands of which her husband died seized and possessed or of which he was the equitable owner, three things are essential to dower: Marriage, death, seizin, and possession. (Post, pp. 6-10.) t. DOWER. Widow not entitled to dower in lands which husband conveyed before marriage, where it was agreed she should take no in. terest. Under Shannon’s Code^ section 4139, declaring a widow shall be entitled to dower in lands of which her husband died seized and possessed, or of which he was the equitable owner, and section 4140, declaring that .she shall be entitled to dower in lands mortgaged or conveyed in trust, when the husband dies before foreclosure, as well as section 4149, declaring that any conveyances made with intent to defeat the widow’s dower shall be void, a widow is not entitled to dower in lands which the husband conveyed before marriage, where an antenuptial agreement provided that she should take no interest in such property, for it cannot be said that the lands were conveyed with intent to defeat her dower, and, undoubtedly, the husband was not seized of the land at the time of the marriage or thereafter. (Post, pp. 6-10.) Cases cited and approved: Apple v. Apple, 38 Tenn., 348; Luns-ford v. Jarrett, 79 Tenn., 194; Bond v. Bond, 84 Tenn., 307; McIntosh v. Ladd, 21 Tenn., 465; Reynolds v. Vance, 48 Tenn., 345. Code cited and construed: Sec 4139 (S.).
143 Tenn. 11Allen v. Cunningham (1919)
1. INSURANCE. Member of benefit society field under evidence mentally competent to cfiango beneficiaries. In an action on mutual benefit certificate between former beneficiaries and beneficiary at time of member’s death, evidence held to> show that member was a person of sound mind at the time she changed beneficiaries. (Post, pp. 11-21.) 2. INSURANCE. Evidence held sufficient to show that change of beneficiaries was procured through,fraud. In action on mutual benefit certificate between former beneficiaries and beneficiary at time of the member’s death, evidence held insufficient to show that the issuance of the new certificate changing the beneficiaries was secured through fraud or imposition on the part of the person named as beneficiary in new certificate. (Post, pp. 21-24.) Cases cited and approved: Wilson v. State, 100 Tenn., 596; Goodall v. Thurman, 38 Tenn., 209. Code cited and construed: Sec. 3369a 82 (S.) 3. INSURANCE. Husband of deceased daughter not a “son-in-law” within statute providing that “son-in-law” may he beneficiary. The husband of a deceased daughter is not a “son-in-law” within Shannon’s Code, section 3369a82, entitling member of mutual soci-. ety to name “son-in-law” as beneficiary of death benefit certificate; the relationship of son-in-law and mother-in-law terminating upon the death of the daughter. (Post, pp. 24, 25.) 4. INSURANCE. Husband of deceased daughter held not a “dependent” on mother within statute relating to beneficiaries. Where mother upon death of daughter with whom she has been living continued to live with daughter’s husband upon whom she depended for her support and maintenance, the husband was not a “dependent” upon the mother within Shannon’s Code, sections 3369a82, providing that a “dependent” may be named as beneficiary in death benefit certificate, on the theory that the mother looked after his household affairs, saw that his meals were prepared, etc.: she being under no legal or moral obligation to do so. (Post, pp. 25, 26.) Cases cited and approved: Caldwell v. Grand Hodge of United Workmen, 148 Cal., 195; McCarthy v. Supreme Lodge, etc., 153 Mass., 314; Palmer v. Welch, 132 Ill., 141. Case cited and distinguished: Ownby v. Supreme Lodge K. of H., 101 Tenn., 16. , 5. INSURANCE. Improperly appointed beneficiary held entitled to equitable lien for assessments paid. Where a member of mutual benefit society lived with her married daughter, whose husband supported and maintained the member, paid her assessments, and continued to so do after daughter’s death, and where at time of the member’s death the husband had paid out in assessments more than $3,800' to keep a $4,000 certificate in force, the husband, on being denied the right to recover proceeds of the certificate as beneficiary because of absence of insurable interest, will be given equitable lien on the proceeds for the amount paid by him in assessments with interest thereon, notwithstanding Stannon’s Code, section &369alll. (Post, ,pp. 26-29.) Cases cited and approved: Westall v. Wood, 212 Mass., 540; Insurance Co. v. Dunscomb, 108 Tenn., 724; Bendet v. Ellis, 120 Tenn., 277; Quinn v. Catholic Knights, 99 Tenn., 80. Case cited and distinguished: Milam v. Milam, 138 Tenn., 686; Brown v. Bigley, 3 Coopers Chan., 618. Code cited and construed: Sec. 3369alll (S.). 6. INSURANCE. Statute as to exemption of benefit payable by mutual society from attachment, eto. construed. Shannon’s Code, section 3369alll, providing that no money or other benefit to be paid by mutual benefit society shall he liable to attachment garnishment, or he applied by any legal or equitable process or operation of law to pay any debt or liability of mem: her or beneficiary or any other person, who may have a right thereunder, either before or after payment, held not to preclude equity from granting an equitable lien on proceeds of death benefit certificate to improperly appointed beneficiary for assessments paid by such beneficiary; such statute having reference only to general and ordinary debts of the insured or beneficiary, and not to assessments or 'money paid by which the benefit is created and made possible, in view of Shannon’s Code, sections 2265, 4030. Post, pp. 29, 30.) Acts cited and construed: Acts 1875, ch. 142; Acts 1845-46, ch. 216. Code cited and construed; Secs. 2265, 4030 (S.). 7. COSTS. Taxable one-half against both parties on court affirming on appeal by both parties. Appellate court in affirming decree from portions of which both parties appealed will tax one-half of the costs against both of the parties. (Post, p. 30.)
143 Tenn. 31State v. Sellars (1919)
1. STATUTES. Repeal by implication adjudged only where acts cannot be harmonized. It is the duty of the court to give effect to both of two acts, if possible, and only where they cannot be harmonized will a repeal of the former by the latter by implication be adjudged. (Post, ■ pp. 31-36.) Acts cited and construed: Acts 1891, ch. 22, 123, sec. 12; Acts 1881, ch. 105; Acts 1875, ch. 83. Cases cited and approved: Davidson v. Gibson County, 134 Tenn., 526; Dunham v. State, 89 Tenn., 728; State v. Davidson County, 93 Tenn., 175: Cases cited and distinguished: Woolen v. State, 129 Tenn., 455; Eaton v. State, 83 Tenn., 202. Code cited and construed: Secs. 7619-7623, (S.); Sec. 5413 (Code of 1858). 2. COSTS. State liable for costs where defendant committed to county jail. , Under Acts Ex. Sess. 1891, chapter 22, and Shannon’s Code, section 7393, not repealed by implication by Acts (1881, chapter 105, the circuit judge in his discretion having committed defendant convicted of petit larceny to the county jail, the State was liable for the costs. (Post, pp. 36-41.) Acts cited and construed: Acts 1891, chs. 22, 105. Code cited and construed: Sec. 7793 (S.).
143 Tenn. 42Ramsey v. Fidelity & Casualty Co. (1919)
INSURANCE. Death from blood poisoning caused by infection from pulled tooth not “accidental.” Death through injury to gum, caused by pulling of a tooth which made port of entry for bacteria into the circulatory system and directly resulted in blood poisoning, was not within a policy insuring against 'ibodily injury through accidental means exclusive of all other causes” and the beneficiary’s complaint, alleging such acts, was (jemurrable. Cases cited and distinguished: Stone v. Fidelity & Casualty Co., 133 Tenn., 673. Lehman v. Great Western Acci. Ass’n, 155 Iowa, 737; Rock v. Insurance Co., 172 Cal., 462; Salinger v. Fidelity & Casualty Co., 178 Ky., 369; Smith v. Travelers’ Ins. Co., 219 Mass., 147; Maryland Casualty Co. v. Spitz, 246 Fed., 817; Herdic v. Maryland Casualty Co., 149 Fed., 198.
143 Tenn. 55Wilson v. State (1919)
FJttOM LINCOLN. Appeal from tbe ’Circuit Court of Lincoln County.— Hon. R. W. Smartt, Judge.
143 Tenn. 73Wildberg Box Co. v. Darby (1919)
1. SALES. Seller after waiver of time limit has reasonable time therefrom in which to deliver. Where the seller of lumber failed to deliver by the time set and the buyer waived the time limit, andmo specific time was agreed upon in which the lumber was to be delivered, the seller had a reasonable time from the time limit within which to deliver. (Post, pp. 73-80.) Case cited and approved: Foundry Co. v. Wheel Co., 113 Tenn., 375. Cases cited and distinguished: Lowy v. Rosengrant, 196 Ala., 337; Mann v. Maurel (Sup.), 126 N. Y. Sup., 731; Garrison v. Newton. 96 Wash., 294; Norrington v. Wright, 115 U. S., 188. 2. SALES. Directions not to ship any more goods terminated contract and released seller. The-buyer of lumber, by writing the seller, after long delay in delivery, not to ship any more, terminated the contract, and released the seller from making further shipments. (Post, pp. 80-83.) 3. SALES. Buyer could have reinstated time as of essence by giving notice fixing time for performance. After waiver of the original time limit for delivery of lumber sold, so that the seller had reasonable time, the buyer could have sued for breach of nondelivery expiration of such reasonable time without any notice to the seller, or the parties could have agreed on a further-extension, or the buyer could have reinstated time as of the essence after waiver by giving defendant notice, fixing a reasonable time for performance, that it would rescind after expiration of the time, and hold him liable for the damages from his breach. (Post, pp. 83, 84.) 4. SALES. Essentials of buyer’s notice to seller to reinstate time as oí essence stated, Notice by the buyer of lumber to the seller in default after waiver of the original time limit should have fixed essential time for performance, which must have been reasonable under the circumstances, and should have advised the seller that, unless he delivered within the prescribed time, the contract would be terminated or rescinded, and that he would be held liable for damages sustained. {Post, p. 84.) Case cited and approved: Garrison v. Newton, 4 A. L. R., 822. 5. SALES. Buyer terminated contract in force by notifying seller not to ship. Contract for sale of lumber, being in force long after its original, time limit for delivery on account of buyer’s waiver of such limit, buyer terminated it by notifying seller not to make further shipments, and such termination, without giving required notice to deliver in a reasonable time, breached the contract, and precluded the buyer from recovery from the seller. {Post, pp. 84, 85.)
143 Tenn. 86Scott v. Nashville Bridge Co. (1919)
1. MASTER. AND SERVANT. Compensation Act not coercive in abolishing common-law defenses. The Workmen’s Compensation Act is not coercive because it deprives the employer of his common-law defences, if he elects not to accept the act; the Legislature, having the power to abolish such common-law defenses. (Post, pp. 86-101.) Acts cited and construed: Acts 1919, ch. 123. Cases cited and distinguished: Maekin v. Detroit Timken Axle Co., 187 Mich., 8; Young v. Duncan, 218 Mass., 346; State v. Pearce, 7 Tenn., 66; State v. Manley, 1 Tenn., 428; N. Y. C. R. R. Co. v. White, 243 U. S., 188; Borgnis v. Falk Co., 147 Wis., 427; Dei-beikis v. Link Belt Co., 261 Ill., 454. 2. STATUTES. Compensation Act not broader than title, which refers to insurance companies. The Workmen’s Compensation Act is not broader than the title, in that the title mentions the regulation of the business of insurance companies writing workmen’s compensation insurance under the act, whereas section 40 of the act provides “that very person, partnership, association, organization,” etc., “is authorized to write accident or indemnity insurance,” especially in view of Shannon’s Code, section 3274, defining the term “company,” and therefore does not contravene Constitution article 2, section 17. (Post, pp. 101-1Ó4.) Cases cited' and approved: State v. Stone, 118 Mo., 388; Singer Mfg. Co., v. Wright, 97 Ga., 114; Chicago Dock Co. v. Garrity, 115 ■ Ill., 155. 3. ^STATUTES. Compensation Act does not contain two subjects in referring to several systems of insurance. Workmen’s Compensation Act does not contravene Constitution, article 2, section 17, because the title and act each provides a system of workmen’s compensation and also for a system of liability or accident insurance. (Post, pp. 104, 105.) 4. STATUTES. Compensation Act does not embrace more than one subject in providing exemption from claims of creditors. Workmen’s Compensation Act does not embrace more than one subject, in violation of Constitution, article 2, section 17, in that, in addition to providing for payment of compensation to injured employees, it provides that the sums paid shall be exempt from the claims of the employee creditors. (Post, p. 105.) 5. STATUTES.c Compensation Act does not deny employees right to contract and! not express such subject in title. The Workmen’s Compensation Act is not invalid as denying an employee the right to contract and not expressing such subject in the title, as required by Constitution, article 2, section 17. (Post, p. 105.) 6. STATUTES. Compensation Act does not contain two subjects in providing revenue for state and compensation to employees. The Workmen’s Compensation Act does not violate Constitution, article 2, section 17, providing that act should contain but one subject, in that it provides both revenue for State and compensation to employees, since the act would be a .nullity if revenue could not be raised to carry out its provisions. (Post, p. 106.) 7. STATUTES. Constitutional provision as to embracing more than one subject in statute liberally construed. Constitution, article 2, section 17, providing that no bill shall become a law which embraces more than one subject, that subject to be expressed in the title, is to be construed liberally rather than to embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purpose for which it hap been adopted. (Post, p. 106.) Cases'cited and approved: Cannon v. Mathes, 55 Tenn., 504, -Heis-kell v. Knoxville, 136 Tenn., 376; State v. Cumberland Club, 136 Tenn., 84. 8. STATUTES. Generality of title no objection. Generality of the title of a statute is no objection, under Constitution, article 2, section 17, so long as' it is not made a cover .to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection, and it is not essential to the constitutionality of a statute that its title should epitomize or recite in detail the provisions contained in its body; all provisions directly or indirectly relating to the subject expressed in the title, having a natural connection therewith and not foreign thereto, being held to be properly embraced in it. (Post, pp. 106, 107.) Cases cited and approved: Cole Mfg. Co. v. Falls? 90 Tenn., 466; Ryan v. Terminal Co., 102 Tenn., Ill; State v. Yardley, 95 Tenn., 546; State v. Cumberland Club, 136 Tenn., 84; State v. Schlitz Brewing Co., 104 Tenn., 715; Memphis v. St. Ry. Co., 110 Tenn., 598. 9. STATUTES. Workmen’s Compensation Act does not repeal laws without reciting same in title. Workmen’s Compensation Act does not contravene Constitution, article 2, section 17 because, it repeals former laws without recti-ing in its title or body the substance of the laws repealed; such constitutional provision referring alone to those acts which expressly repeal, revive, or amend former laws, and not embracing implied amendments or repeals. (Post, p. 1X)7.) Cases cited and approved: State v. Yardley, 95 Tenn., 558; Hunter v. Memphis, 93 Tenn., 571; Ballentine v. Mayor, 83 Tenn., 633; Home Insurance Co. v. Taxing Dist., 72 Tenn., 650; Poe v. State, 85 Tenn., 495; Railroad v. Crider, 91 Tenn., 507. Constitution cited and construed: Art. 2', sec. 17. 10. CONSTITUTIONAL LAW. Statute to be held valid if it can be sustained. When the classification made and stated in a statute is challenged as being arbitrary, unreasonable, and discriminatory, under Cop-stitution, article 11, section 8, if any state of facts reasonably can be conceived that would sustain it, the existence of the state of facts at the time the law was enacted must be assumed, and any one who assails the classification contained in the statute has the burden of showing that it does not rest on any reasonable basis, but is essentially arbitrary. (Post, p. 108.) Cases cited and approved: Motlow v. State 125 Tenn., 547; State v. Schlitz Brewing Co., 104 Tenn., 705; Ogilvie v. Hailey, 141 Tenn., 392. - 11. CONSTITUTIONAL LAW. Statutes may extend to all citizent or be confined to particular classes. Statutes public in their character and otherwise unobjectionable may extend to. all citizens or be confined to particular classes, under Constitution, article 11, section 8. (Post, pp. 108-111.) Cases cited and approved; Breyer v. State, 102 Tenn., 103; Sutton v.. State, 96 Tenn., 696. Cases cited and distinguished: Ogilvie v. Hailey, 141 Tenn., 392; City of Memphis v. State, '133 Tenn., 84. 12. CONSTITUTIONAL LAW.; Workmen’s Compensation Act not arbitrary and discriminatory in excluding coal mine operators. The Workmen’s Compensation Act is npt arbitrary, unreasonable, and discriminatory, in violation of Constitution, article 11, section 8, in that it excludes from the operation of the statute coal mine operators and their employee and certain other employees. Post, pp. 111-114.) Cases cited and approved: American Coal Co. v. Allegheny County, 128 Md„ 564; Sayles v. Foley, 38 R. I., 488; Parker-Washington Co. v. Industrial Board, 274 Ill., 498. Case cited and distinguished: Middleton, v. Texas Power & Light Co., 108 Tex., 96. 13. JURY. Workmen’s Compensation Act not unconstitutional as denying trial by jury. The Workmen’s Compensation Act is not violative of Constitution, article 1, section 6, because it denies trial of jury, since parties by accepting the act waive the right to trial by jury, and hence are not deprived of that right; the statute being elective. (Post, pp. 113-115.) Cases cited and approved: Trigally v. Memphis, 46 Tenn., 385; Marter v. Wear. 117 Tenn., 244; Woods v. State, 130 Tenn., 106; State ex rel. v. House, 134 Tenn., 67; Hawkins v. Beakley (D. C.), 220 Fed., 378; Deibeikis v. Link Belt Co., 261 Ill., 454; Hunter v. Colfax Consolidated Coal Co., 175 Iowa, 245; Greene v. Caldwell, 170 Ky., 571; Mathison v. Minn. St. Ry. Co., 126 Minn., 286; Sexton v. Newark Dist. Tel. Co., S4 N. J. Law, 85. Constitution cited and construed: Art. 1, sec. 6. Code cited and construed: Sec. 4613 (S.). 14. CONSTITUTIONAL LAW. Workmen’s Compensation Act does not close courts and deny due process. Workmen’s Compensation Act does not close to employee the courts that were open prior, to its passage, and does not deny a remedy by due process of law, in violation of Constitution article 1, sec- . tion 17. (Post, pp. 115-117.) 15. CONSTITUTIONAL LAW. Provision that courts shall be open is mandate to judiciary and not Leigislature. Constitution, article 1, section 17, providing that all courts shall be open to every man, etc., who shall have a remedy by due process of law, is a mandate to the judiciary, and is not intended as a limitation on the legislative branch of the government. (Post, pp. 117, 118.) Cases cited and apprpved: Bledsoe v. Wright, 61 Tenn., 471; Dodd v. Weaver, 34 Tenn., 672; Pawley v. McGimpsey, 15 Tenn., 502; Adams v. Iten Biscuit Co., 162 Pac., 938; Prescott v. Duncan, 148 S. W., 229; Harbison v. Knoxville Iron Company, 103 Tenn., 421. Case cited and distinguished: Nance v. Pian» Co., 128 Tenn., 1. 16. CONSTITUTIONAL LAW. Workmen’s Compensation Act no deprivation of liberty or property. The Workmen’s Compensation Act does not violate Constitution, Article 1, section 8, providing that no man shall be taken or dis-seized of his freehold, etp., or in any manner deprived of his life, liberty, or property hut by the judgment of his peers or the law of the land. (Post, pp. 117, 118.) 17. EMINENT DOMAIN. Workmen’s Compensation Act not taking of property without compensation. Workmen’s Compensation Act does not violate Constitution, article 1, section 21, providing that no man’s particular services shall be taken or property taken or applied to public use without' just compensation. (Post, pp. 118-120.) Cases cited and approved: Nance v. Piano Co., 128 Tenn., 1; Harbi-son v. Knoxville Iron Co., 103 Tenn., 421; Munn v. Ill., H U. S., 113. Case cited and distinguished: N. Y. Central R. R. Co. v. White, 243 U, S., 188. Constitution cited and construed: Art. 1, sec. 21. 18. CONSTITUTIONAL! LAW. Workmen’s Compensation Act does not deprive employee of property without due process under federal Constitution. Workmen’s Compensation Act does not violate the Fourteenth Amendment of the federal Constitution on the ground that it deprives an employee of his property without due process of law. (Post, p. 120.) Case cited and approved: Arizona Copper Co. v. Hammar, 250 U. S.,- 400. 19. MASTER AND SERVANT. Compensation Act not unconstitutional as binding minor employee. Workmen’s Compensation Act is not unconstitutional, in that it undertakes to make an election fon and, a binding contract upon a minor employee, when by reason of such minority he is unable to make such election or contract, since the act endows a minor, for the purpose of the act, with a power to elect. (Post, p. 120.) 20. CONSTITUTIONAL LAW. One not prejudiced cannot claim unconstitutionality of statute. An adult employee is not in a position to challenge .the Workmen’s Compensation Act on the ground that it undertakes to make an election for a minor employee, if it does so. (Post, p. 120.) 21. INFANTS. Legislature may endow with power to make contracts. Legislature has the power to endow .minors to make contracts otherwise lawful, and after he has been so endowed he becomes an adult, or at least on the same plane. (Post, p. 120.) pp. 120, 121.) Cases cited and approved: Borgnis v. Falk Co., 147 Wis., 327; Young v. Sterling Leather Works, 91 N. J. Law, 289. 22. JUDGES. Salary of county judge cannot be increased) during term, being “judge of an inferior court.” A county judge is a “judge of an inferior court,’’ within the meaning of Constitution, article 6, section 7, providing that the compensation of judges of inferior courts shall not be increased or diminished during the time for which they are elected. (Post, pp. 120-121.) 23. JUDGES. Workmen’s Compensation Act unconstitutional in providing fees for county judge or chairman. Workmen’s Compensation Act is unconstitutional and void in so far as it provides a fee for a county judge or chairman of the county court, in view of Constitution article 6, section 7, providing that judges’ compensation shall not be increased or diminished for the time for which they are elected. (Post, pp. 120, 121.) 24. STATUTES. Workmen’s Compensation Act not unconstitutional as' a whole. , Workmen’s Compensation Act is not invalid and unconstitutional as a whole by reason of the invalidity of. provision providing for fees of county judges or chairman of county courts, as such provision may be elided. (Post. pp. 120, 121.) 25. STATUTES. Unconstitutional severable provision of statute does not render same unconstitutional as a whole. Where the provisions of a statute are severable and distinct, the unconstitutionality of one or more will not vitiate those which are valid and constitutional. (Post, pp. 120', 121.) Cases cited and approved: State v. Glen, 54 Tenn., 472; State v. McKee, 76 Tenn., 24; State v. Leonard,. 86 Tenn., 490; Judges’ Cases, 102 Tenn., 571; State ex rel. v. Trewitt, 113 Tenn. 571, Jones v. Memphis, 101 Tenn., 188; McCamey v. Cummings, 130 Tenn., 505; Richardson v. Young,- 122 Tenn., 523; Malone v. Williams, 118 Tenn., 439.. • • Constitution cited and construed: Art. 6, sec. 7. 26 MASTER AND SERVANT. Compensation Act not unconstitutional • in requiring physical examination. Workmen’s Compensation Act is not unconstitutional because the provisions contained in section 25 thereof require an injured employee to submit to an examination and accept medical services, and deny to him the right of compensation so long as he refuses. (Post, pi). 123-125.) BaohmaN, J., dissenting.
143 Tenn. 126Gohlston v. State (1919)
HOMICIDE. Punishment for murder in first degree to he determined by jury. Public Acts 1919, chapter 5, section 1, vests the power to fix the punishment for murder in the first degree in the jury, the death ' penalty' provided in Shannon’s Code, section 6442, not being changed by Public Acts 1913 (1 st Ex. Sess.) chapter 36; and it was prejudicial error to withhold such power from the jury. Acts cited and construed: Acts 1919, ch. 5, Acts 1829, ch. 23, sec. 2; Acts 1837, ch. 29; Acts 1913, ch. 36; Acts 1915, ch. 181; Acts 1917, ch. 14; Case cited and'approved: Shipp v. State, 130 Tenn., 493, Codes cited and construed: Secs. 4597-99, 4600, 4601, 5257, (1858); Secs. 6438-40, 6441, 7232 (S.).
143 Tenn. 133State ex rel. Kenny v. Bell (1919)
ELECTIONS. Women not liable for poll taxes in 1919 as qualification for voting in elections of 1920. Only one subject to poll tax during the year preceding election fixed hy Shannon’s Code, section 1220, is required by Constitution, article 4, section 1, to exhibit evidence of the payment of such tax as a condition to voting, the constitutional provision not reaching other voters, as women desiring to vole in 1920, granted the suffrage by amendment to the federal Constitution after January 10, 1919, when poll taxes are assessable by Shannon’s Code, sections 686, 771, 774, against those subject to them, so that they are not required to pay any poll tax for 1919 as a qualification for voting in elections held during 1920. Code cited and construed: Secs. 686, 771, 774, 1220 (S.). Constitution cited and construed: Art. 4, sec. 1.
143 Tenn. 136Memphis Lumber Co. v. Security Bank & Trust Co. (1920)
1. CORPORATIONS. Use of corporate funds to pay stockholder's note . held corporate act and funds not recoverable. Where the maker of .notes owned practically all the stock of a corporation and dominated its affairs, and payments of corporate funds on the notes to a hank discounting the notes were known to everybody connected with the corporation and expressly ratified at a stockholders’ Sheeting, the application of the funds to the notes was a corporate act, and, though ultra vires the funds were not recoverable by the corporation’s trustee for creditors, though the bank had notice of the facts, especially where it surrendered the notes, which bore the indorsement of a solvent indorser. (Post, pp. 139-142.) Cases cited and approved: Water Co. v. Bank, 123 Tenn., 372; Bank v. Bank, 132 Tenn., 157; Whaley v. King, 141 Tenn., 1; Civil Service Tnv. Ass’n v. Thomas, 138 Tenn., 77; Cartwright v. JDick- • inson, 88 Tenn., 476; Vance <£) Kirby v. McNabb Coal Co., 92 Tenn., 47; Jennings, Neff & Co. v. Ice Co., 128 Tenn., 231. 2. CORPORATIONS. Cannot sue to avoid ultra vires transaction fully executed. Where there has been an ultra vires conveyance of real property or transfer of personal property fully executed and the property delivered the corporation cannot sue to avoid the tansaction and recover the property. (Post, p. 142.) Cases cited and approved: St. Louis, Vandalia & T. It. Co. v. Terre Haute & Indianapolis it. Co., 145 IT. S., 393; Rogers v.. N. C. & St. L. Ry„ 91 Fed., 299. 3. CORPORATIONS. Court will neither assist in disaffirming ultra vires executed contracts nor entertain suits in affirmance. The court will neither entertain suits in affirmance of ultra vires contracts of corporations nor aid the parties in disaffirming them when executed. (Post, p. 142.) Cases cited and approved: Marble Co. v. Harvey, 92 Tenn., 115; Tennessee Ice Co. v. Raine, 107 Tenn., 151; Barrow v. Turnpike Co., 28 Tenn., 304. 4. CORPORATIONS. Trustee for creditors not entitled to sue to recover ultra vires payments. As a corporation could not sue to recover payments of corporate funds on notes of its principal stockholder when ratified by the stockholders, the trustee for the benefit of its creditors was likewise precluded from such relief. (Post, pp. 142-144.) Cases cited and distinguished: Nashville Trust Co. v. Bank, 91 Tenn., 336; Stainback v. Junk Bros., etc., Co., 98 Tenn., 306. 306. 5. CORPORATIONS. Subsequent creditors not entitled to have diver-. sion of corporate assets rescinded. Creditors of a corporation becoming such after a diversion of corporate assets to the use of the principal stockholder are not entitled to relief in„absence of proof that the diversion was with any idea of defrauding them. (Post, pp. 144, 145.) Cases .cited and approved: Dillard v. Dillard, '22 Tenn., 41; Nicholas v. Ward, 38 Tenn., 323; Hickman v. Perrin, 45 Tenn., 135; Vance v. Smith, 49 Tenn., 343; Graham v. La Crosse & M. R. R, Co., 102 U, ¡3-, 148. . ■ •
143 Tenn. 146Stewart v. Illinois Central Railroad (1920)
MUNICIPAL CORPORATIONS. Municipality cannot grant railroad right of way in street which win take substantial portion. ■Public highways belong from side to side and from end to end to the public, and abutting owners have special rights of egress and ingress, and consequently a municipality is without authority to grant a railroad company a right of way in k street which would exclude the public from partically one-fourth- of the street and deprive abutting owners of their rights of ingress and egress; for, could the municipality take one-fourth of the street, it might take a half, or all. Cas- s cited and approved: McDonald v. Newark, 42 N. J. Eq., 136; Julia Bldg. Ass’n v. Bell Telephone Co., 88 Mo., 268; Doane v. Elevated Railroad, 165 Ill., 510; Telephone Co. v. Electric Ry. Co., 93 Tenn., 503. Cases cited and distinguished: Pepper v Railroad, 113 Tenn., 53; State v. Superior Court of Spokane County, 62 Wash., 96; Ligare v. Chicago, 139 Ill., 46; Schopp v. City of St. Louis, 117 Mo. 131; Traphagen v. Jersey City, 52 N. J. Law, 67.
143 Tenn. 161Ballard v. Farley (1920)
1. HUSBAND AND WIFE. Conveyaotice to husband and wife as effective as if to wife by name. The granting clause in a conveyance to “William Farley and wife” was just as effectual as if it said “to William Farley and wife, Cora Farley;” it not being necessary that the grantee be described by name if otherwise identified. (Post, p. 163.) Case cited and distinguished: Clark y. Northern Coal Co. (Ky.), 112 S. W., -629. 2. DEEDS. Intention governs construction. If clauses or -parts of a deed are conflicting or repugnant, the intention is gathered from the whole instrument, instead of from particular clauses, and if it is the clear intent of the grantor that apparently inconsistent provisions shall alí stand; it will be given that effect if possib’e, and the technical rules of the common law as to the division of deeds into formal parts will not preva’T as against the manifest intent of the parties, as shown by the whole deed. (.Post, pa. 163, 164.) 3. DEEDS. Premises prevail over habendum clause. Where there is an irreconcilable conflict between the premises of a deed and the habendum, the former prevails. (Post, pp. 163, 164.) Case cited and approved: Teague v. Sowder, 121 Tenn., 132. 4. HUSBAND AND WIFE. Held .to become tenantsi by entirety. Where the- premises of a deed conveyed land to certain person "and wife,” while in the habendum the conveyance was limited to the named person, the' husband and wife- became tenants by the entireties in the land, where it was impossible from the deed to ascertain the true intention of the grantor. (Post, %op. 164-167.) Case cited and approved: Boyertown National' Bank v. Hartman, 147 Pa., 568. Cases cited and distinguished: Hafner v. Irwin et al., 20 N. C., 570; Cox v. Douglass, 20 W. Ya., 175.
143 Tenn. 168Raine v. State (1920)
1. CRIMINAL LAW. Provision of federal Constitution as to speedy , trial does not apply 'to States. As all of the first ten amendments to, the United States; Constitution are binding only on the United States and.,not on. the States, one charged with an offense against the State laws cannot complain that he was not giving a speedy trial guaranteed by Const.' U. S. Amend. 6. (Post. sp. 176-179.) Cases cited and approved: Barron v. Baltimore, 7 Pet.,' 248; Arrow-smith v. State, 131 Tenn., 480. Constitution cited and construed: Art. 1, sec. 9. 2. CRIMINAL LAW. Failure to make minute entries showing continuance does not deprive court of jurisdiction. As Thompson Shannon’s Code, section 7154, provides that after an indictment is found, no criminal prosecution can be dismissed, . discontinued, or abandoned without leave of court, the fact that the clerk of the criminal court failed to make minute entries of several continuances did not cause the court to lose jurisdiction. (Post, p. 179.) Cases cited and approved: Piérce v. Bank, 31 Tenn., 265; Harrison v. Commonwealth, 81 Va., 491; Ex Parte Owens, 52 Ala., 473. Code cited and construed: Sec. 7154 (T.-S.). 3. CRIMINAL LAW. Presumption that good cause for continuance was shown. Where a trial of a criminal prosecution was continued several times at the instance of the state, and no minute entries appeared on the record, it will be conclusively presumed that good ground for continuance under Thompson’s Shannon’s Code, section 7155, was shown, and that the trial court did not err in refusing to dismiss the prosecution after the first term, at which it was at issue. (Post; pp. 179-181.) Case cited and approved: Hobbs v. State, 121 Tenn., 413. Constitution cited and construed: Art. 1, sec. 9. 4. CRIMINAL LAW. Defendant not discharged as denied speedy trial where he acquiesced in postponement. Where defendant, who was indicted February 10th, arraigned February 12th, and admitted to bail the latter part of april, did not object to continuances entered at the June and September terms, he cannot insist that because of such poostponements he was denied the speedy trial guaranteed by Constitution article 1, section 9, and Shannon’s Code, section 6951, for in order to entitle one under indictment and who is on bail to discharge for failure to grant him a speedy trial, he must place himself on record in the attitude of demanding a trial or resisting postponement; it appearing in the instant case that defendant acquiesced in at least one of the postponements. (Post, pp. 181, 182.) Cases cited and approved: Head v. State, 9 Okl. Cr., 356; Stewart v. State, 13 Ark., 720; Fox v. State, 102 Ark., 393; People v. .Douglass, 100 Cal., 1; People v. Rongo, 169 .Cal., 71 ;< Maxwell v. State, 89 Ala., 150; State v. Slorah, 118 Me., 203; Flagg v. State, 11 Ga. App., 37; Weeks v. State (Okl. Cr. App.), 183 Pac., 932; Phillips v. State 201 Fed., 259; In re Edwards, 35 Kan., 99. 5. COURTS. Where United States has defendant in custody, State courts cannot interfere. Where the government of the United Stales had defendant in its custody for violation of a federal statute, the State courts cannot interfere with that custody, or remoye the defendant therefrom for the purpose of trying him in the State court for an alleged violation of State law. (Post, pp.. 182, 183.) Cases cited and approved: Ableman v. Booth, 21 How. 507; Tarble’s Case, 13. Wall., 397; Robb v. Connolly, 111 U. S., 624; U. S. v. Harden (D. C.), 10 Fed., 802. Statute cited and construed: Sec, 1030 (R. S.); Sec. 1696 (Comp. St.), ‘ 6. COURTS. Comity does not require a State to deliver to another State for trial one who has violated its own laws. There is no comity whereby a State will turn over a prisoner held for violation of its. laws prior to expiration of his sentence for trial in another State for violation of the laws of the latter State; the uniform course being to the contrary. (.Post, p. 183.) Cases cited and approved: Matter of Troutman, 24 N. J. Law, 634; ' Taintór v. Taylor, 36 Conn., 242;' Ex parte Rosenblat, 51 .Cal., 285. 7. CRIMINAL LAW. Defendant serving federal sentence, held not entitled to discharge on ground that he was denied speedy trial. Where defendant was indicated in February, 1914, and after several postponements, to which he acquiesced, he pleaded guilty in the United States court to a charge of violating a federal law, and was sentenced to five years in the federal prison, the fact that he was not brought to trial during the interim in which he was in the federal prison does not entitle him to discharge on the theory that he was not given a speedy trial guaranteed by Constitution article 1, section 9, and Shannon’s Code, section 6951, for there is no federal law which would entitle the State to the • custody of defendant for the purpose of a trial, and under no principle of comity would the United States have been required to give up defendant to the State. (Post, pp. 183, 184.) Case cited and approved: Beavers v. Haubert, 198 U. S., 77. 8. CRIMINAL LAW. Overruling of motion to quash as to counts of the indictment on which defendant was acquitted not prejudicial. Defendant cannot complain of the overruling of his motion to quash in so far as it applied to those counts of the indictment on which he was acquitted. (Post, p. 184.) 9. INDICTMENT AND INFORMATION. Matters of inducement need not be alleged with particularity. Matters of inducement in a prosecution for fraudulent breach of trust denounced by Thompson’s Shannon’s Code, section 6580, wherein the means by which defendant obtained the property he was alleged to have misappropriated were set forth, need not be averred with the same degree of particularity and certainty as those parts of the indictment describing the commission of the substantive offense. (Post, pp. 184-186.) 10. EMBEZZLEMENT. Banker, though not bailee, may be guilty of fraudulent breach of trust. Thompson’s Shannon’s Code, section 6580, declaring that the fraudulent appropriation of personal property or money, by any one to whom it has been delivered on deposit, pledge, or sequestration, or to be carried, etc., or in whose hands or under whose control it may be by his position as clerk, etc., is a fraudulent breach of trust, applies to a bank official who has custody and control of the funds of a bank, though the funds are used in the banking business, and the banker cannot return the specific funds on demand, the section showing it is not restricted to bailments. (Post, pp. 184-186.) Case cited and approved: Gillespie v. State, 25 Tenn., 169. Code cited and construed: Sec. 6580 (T.-S.). 11. INDICTMENT AND INFORMATION. Motion to quash reaches only defects on face of indictment, and evidence is inadmissible in aid of motion. Only' infirmities appearing on the face of an indictment can be reached by a. motion to quash, and evidence cannot be resorted to for the purpose of establishing such infirmities. (Post. pp. 186, 187.) 12. INDICTMENT AND INFORMATION. State not required to elect where various offenses are based on one transaction. Where an indictment in several counts charged defendant with statutory larceny, embezzlement, and fraudulent breach of trust, but all of the courts were based upon the same transaction, the , State could not be required to elect. (Post, p. 187.) Cases cited.and approved: Vinson v. State, 140 Tenn., 70; Cook v. State, 84 Tenn., 461. 13. EMBEZZLEMENT. Restitution is no defense to fraudulent breach of trust. Where defendant, a banker, was acquitted of embezzlement, but con- • victed of fraudulent breach of trust, he was not entitled to a new trial on the ground that his restitution of the money taken brought him within the exception of Thompson’s Shannon’s Code, section 6575, for such exception applies only to embezzlement denounced by section 6574. (Post, pp. 187, 188.) Acts cited and construed: Acts 1839, 1840, secs. 1-3, ch. 82. Code cited and construed: Sec. 6574 (T.-S.). 14. EMBEZZLEMENT. Restitution is no defense save in case of embezzlement by public officer. Thompson-Sihannon Code, .section^ 6575 declaring that if .one shall account for and pay over all money collected, or received, he shall not be subject to punishment for embezzlement denounced by the preceding section, applies only to embezzlers of public, as distinguished from private funds, the preceding section dealing with embezzlement by public officers only. (Post, p. 188.) 15. CRIMINAL LAW. Finding of trial j.udige that jury was not influenced conclusive if supported. Where it was asserted that the jury was improperly influenced or tampered with, a finding on motion for new trial by the lower court contrary to such assertion is conclusive where supported by any evidence. (Post, pp. 188-191.) 16. CRIMINAL LAW. Finding that jurors were not tampered with and received no messages warranted. Where defendant sought a new trial on the ground that jurors were allowed to read newspaper accounts of the trial while it was in progress, and were allowed to separate, etc., a finding by the trial court that the jurors were not tampered with, and were not improperly influenced, the evidence showing that accounts iu the papers were deleted before the jurors were allowed to read them, etc., held warranted. (Post, pp. 188-191.) Cases cited and approved: Percer v. State, 118 Tenn., 765; Sherman v. State, 125 Tenn., 19. 17. CRIMINAL LAW. Embezzlement. Instruction in prosecution for fraudulent breach of trust properly refused.. In a prosecution for fraudulent breach of trust, where there was no evidence that defendant, a hanker, acquired title to the moneys he was claimed to have misappropriated, an instruction that there could he no conviction if title passed to defendant was properly refused, where there was no evidence on the issue, and for the further reason that it was not essential that the identical money delivered should be returned. (Post, p. 191.) 18. EMBEZZLEMENT. Intent is not essential crime of fraudulent breach of trust. The essence of fraudulent breach of trust denounced by Thompson's Shannon’s Code, section 6580, does not embrace any intent to deprive the owner of his property, and no matter how good the intention of the defendant may be at the time of the misappropriation, he is guilty, and for that reason an instruction that there could be no conviction unless defendant converted the money •with intent to deprive the true owners was properly refused. (Post, px>. 191, 192.) 19. CRIMINAL LAW. Trial judge can decline special requests unless they are strictly accurate. The trial judge cannot he put in error for declining special requests unless they are strictly accurate in substance and in form. (Post, pp. 192, 193.) 20. EMBEZZLEMENT. Requested instruction on fraudulent breach of trust properly refused; “legal tender,” In a prosecution for embezzlement, larceny and fraudulent breach of trust by a banker who misappropriated funds, a request that he could not be convicted unless the jury should find he obtained from, the bank legal tender in the form of good and lawful money of the United States was properly refused, the banker having been acquitted as to the first two offenses, for the instruction is erroneous, not only because making “legal tender’’ synonymous with good and lawful money, which is not the law, but because of the use of the word “obtain,” which would be applicable to the court on statutory larceny, but for fraudulent breach of trust. {Post, pp. 192, 193.) Case cited and approved: Johnson v. State, 125 Tenn., 420. 21. EMBEZZLEMENT. Bank president may control funds and property, though cashier is executive officer. While the cashier is the general financial executive officer of a bank, and as such has custody and control of the bank’s property, funds and assets, yet the directors, where there is no inhibition in the bank’s charter, may clothe the president with functions and duties which would otherwise repose in the cashier, or the president may by usage and custom exercise such power, so as to make him liable for fraudulent breach of trust. (Post, pp. 193-200.) 22. EMBEZZLEMENT. Bank president held to have custody of funds so as to be guilty of fraudulent breach of trust. In a prosecution or fraudulent breach of trust under Thompson’s-Shannon’s Code, section 6580, against the president of a bank who misappropriated the funds of the institution, evidence held to establish his guilt of the offense charged, showing that he, and not the cashier, acted as the general financial executive officer, and that he had control of the funds and property of the bank (Post, pp. 193-200.) Cases cited and approved: State v. Kortgaard, 62 Minn., 7; Reeves v. State, 95 Ala., 31; Ker v. People, 110 Ill., 627. Code cited and construed: Sec. 6545 (T.-S.).
143 Tenn. 201Memphis Street Railway Co. v. Stockton (1920)
1. MASTER AND SERVANT. No liability for latent defects. A master is not usually liable for latent defects. (.Post, pp. 205-209.) 2. MASTER AND SERVANT. No liability for recent defects. A master is not liable for defects arising so short a time prior to the accident as not to have been discovered by him in the course of his reasonable inspections. (Post, pp. 205-209.) 3. MASTER AND SERVANT. Motorman on ear with defective air brake held not entitled to invoke doctrine of res ipsa loquitur. Where plaintiff, a student motorman, operating a car making its first trip in the morning, was injured in a collision with another car at the foot of a hill because applications of the air brake by himself and his instructor failed to check the car, though one stop had been made by the use of the brake, he was not entitled to invoke the rule of res ipsa loquitur to raise an inference of the company’s negligent ignorance concerning the defect in the brake, and thus save his case for the jury. (Post, pp. 205-209.) Cases cited and approved: Morris Bros. v. Bowers, 105 Tenn., 59; Box Co. v. Gregory, 119 Tenn., 537; Griffin & Son v. Parker, 129 Tenn., 446. Case cited and distinguished: North Memphis Savings Bank v. Union Bridge & Construction Co., 138 Tenn., 161.
143 Tenn. 210Branch v. Branch (1920)
1. EVIDENCE. Certified; copy of deed, admissible when original deed in possession of adverse party. Parties suing to recover land conveyed to their deceased mother had a right to rely on a certified copy of the deed taken from the register’s books, as evidence’of their title, where the original deed was in defendant’s possession. (Post, pp. 212, 213.) Cases cited and approved: Saunders, v. Harris, 24 Tenn., 345; Sampson v. Marr, 66 Tenn., 486. 2. ALTERATION OF INSTRUMENTS. Alteration of deed recorded as altered presumed made before delivery. When an altered deed has been registered as altered, the alterations are presumed to have been made before delivery, especially where parties claiming under the deed did not have possession of it and relied on a certified copy, which, under Thompson’s' Shannon’s Code, section 3748, is- to be received as evidence subject to be impeached and proved to be .a forgery or otherwise inoperative. (Post, pp. 213-215.) Case cited and approved: Peevey v. Buchanan, 131 Tenn., 24. Case cited and distinguished: Tate v. Lawrence, 58 Tenn., 503. Code cited and construed: Sec. 3748 (T.-S.).
143 Tenn. 216Anderson v. Memphis Street Railway Co. (1920)
1. DEATH. Mother and sister of decedent beneficiaries under statute. Under Thompson’s Shannon’s Code, sections 4025-4029, the mother and sister of a decedent are the beneficiaries of judgment recovered for his death by his administrator. (Post, p. 218.) Case cited and approved: Freeman v. Railroad, 107 Tenn., 340. Code cited and construed: Secs. 4025-29 (T.-S.). 2. DEATH. Contributory negligence of beneficiary bars recovery. A mother who w.as negligent in driving her automobile, when it collided with a street car, resulting in her child’s death, cannot *be allowed any benefit of the administrator’s recovery on account of such accident, proximately resulting from her own negligence. (Post, pp. 218, 219.) Case cited and approved: Bamberger v. Citizens Street Ry. Co., 95 Tenn., 18. 3. DEATH. Beneficiary not prejudiced! by negligence of cObeneficiary. A daughter, riding with her minor brother in an automobile which their mother was driving negligently when collision with a street car occurred, so that the brother was killed,, should not, as a beneficiary sharing in the recovery for his death be prejudiced by the mother’s fault, defeating her right as cobeneficiary. (Post, pp. 2119-221.) Case cited and approved: Phillips v. Denver City Tramway Co., 53 Colo., 458.
143 Tenn. 222McWhite v. State (1920)
1. USURY. Assignment of wages not within the usury laws. An agreement whereby wage-earner assigned at a discount a portion of'his wages to be earned in the future, when not a cloak . to cover a loan, is not within the usuary laws. (Post, pp. 225-226.) Case cited and approved: Spicer v. King Bros. & Co., 1.36 Tenn., 413. 2. USURY. Transaction held loan, despite salary assignment, and so subject to the usury laws. In a prosecution for violation of the usury laws, the courts will disregard the form and look to the real substance therefor, notwithstanding defendant took assignments of wages to be paid in the future, which on their face were without the usury laws, yet. where the assignments were not recorded, and it appeared that they were used merely as collateral security, the transactions in reality being loans and the employees being allowed to collect their wages and pay as interest the discount mentioned in the assignment, the transactions must be deemed loans and within the usury laws, so, where defendant for a two weeks’ loan of twenty-five dollars received $1.75 interest, he was liable. (Post, pp. 226, 227.) Cases cited and approved: Gillespie v. State. 25 Tenn., 169; Murphy v. State, 40 Tenn., 249; Swanson v. White, 24 Tenn.. 373; Weather-head v. Boyers, 15 Tenn., 545; Wetmore v. Brien, 40 Tenn., 727. 3. INDICTMENT AND INFORMATION. Indictment charging usury held specific as to time. An indictment, charging that defendant on the - day of July, 1919. before the finding of the indictment, did .willfully receive by way of compensation for the use of $25 for a period of two weeks the sum of $1.75, etc., is sufficiently specific as to matter of time, and will support a conviction of usury. (Post, p. 227.) Cases cited and approved: Gillespie v. State, 25 Tenn., 164; State v. Mitchell, 42 Tenn., 222. 4. USURY. Money lender not obtaining license cannot escape prosecution for usury on the ground that statute repealed the usury laws. Where defendant made usurious loans secured by salary assignments, he cannot escape liability on the ground that Thompson’s Shannon’s Code, sections 6732, 6733, (relating to usury, where repealed by Acts 1917, chapter 62, relating to the lending of money on personal-property wages, or salary, it appearing that defendant did not obtain a license under the latter act so as to come within the terms of its protection. (Post, pp. 227, 228.) Acts cited and construed: Acts 1917, ch. 62. Code cited and construed: Secs. 6732, 6733 (T.-S.).
143 Tenn. 229Holder v. State (1920)
1. INDICTMENT AND INFORMATION. Indictment may not he recommitted to grand jury for amendment at later term. An indictment may not he recommitted to the grand jury for amendment at a term subsequent to that at which was found. Cases cited and approved: Hite v. State, 17 Tenn., 203; McKinley v. State, 27 Tenn., 73; State v. Hughes, 31 Tenn., 261; State v. Davidson, 42 Tenn., 184; State v. Willis, 40 Tenn., 157; Lawless v. State 72 Tenn., 178; D'eBerry v. State, 99 Term., 207; State v. Davidson, 42 Tenn., 184. Case cited and distinguished: State v: Costen, 141 Tenn., 539. 2. INDICTMENT AND INFORMATION. jWhen, too late to recommit defective indictment, a new one may he found and the first quashed, Ain indictment being defective, and it being too late to recommit it to the grand jury for amendment, another indictment may be found, and the first quashed; this not resulting in a discharge of defendant, in violation of Acts 1919, chapter 9, prohibiting it unless he is required to pay the costs, except where he is acquitted. Acts cited and construed: Acts 1919, ch. 9. Case cited and distinguished: Zachary v. State, 66 Tenn,, 3.
143 Tenn. 235Duncan v. State (1920)
CRIMINAL LAW. Quashing unintelligible indictment permissible: “Criminal case.” Acts 1919, chapter 9, forbidding a trial judge to pronounce a judgment in a “criminal case” by which a defendant, except when acquitted, is discharged without payment of coSts, does not prevent the quashing .of an indictment which is unintelligible and charges nothing; there being no criminal case unless a crime is charged. Acts cited and construed: Acts 1919, ch. 9. Case cited and approved: State v. Costen, 141 Tenn., 539.
143 Tenn. 237Nashville, C. & St. L. Ry. v. Tennessee Mill Co. (1920)
1. LIMITATION OF ACTIONS. Accounts held “mutual,” though agreement for credit was Illegal. Where a shipper, having a large volume of business and many claims pending against a railway company for overcharges and for loss and damage to shipments, made an arrangement under which the railway company extended credit on account of freight charges for amounts in proportion to the claims pending, the accounts between the parties were mutual within Thompson-Shannon Code, section 4475, and limitations did not run'until the date of the last item, even though the agreement was illegal under Act Cong. Feb. 19, 1903, section 1, as amended by Act June 29, 1906, section 2 (U. S. Comp. St. section 8597). (Post, pp. 240, 241.) Case cited and approved: .Hooting Valley Ry. Co. v. U. S., 210 Fed., 735. Code cited and construed: Sec. 4475 (T.-S.). 2. LIMITATION OF ACTIONS. Party estopped to plead limitations on theory that extension agreement solicited by him was invalid. Where a shipper solicited an extension of credit for freight charges based on the amount of claims in its favor against the railway company for overcharges, etc., and accepted the benefit of such credit and from time to time pleaded for its continuation, it was estopped to plead the statute of limitations on the theory that the agreement was illegal and did not suspend the right of action. (Post, pp. 241, 242.) Cases cited and approved: Lengar v. Hazelwood, 79 Tenn., 539; Phillips v. Phillips, 163 Cal., 530; Princeton, etc., Turnpike Co. v. Gulick, 14 N. J. Law, 545.. 3. CARRIERS. In action for freight, defendant may offset claims for overcharges and for loss and damages to shipments. In an action for freight charges, the shipper is not precluded from offsetting claims against plaintiff for overcharges and for loss and damage to shipments by the possibility that the parties might evade the Interstate Commerce Act by a collusive settlement of the offset. (Post, pp. 242-246.) Cases cited and approved: Chicago- & N. W. Ry. Co. v. Stein, (D. C.) 233 Fed., 716; Illinois Central R. Co. v. Hoopes & Son, (D. C.), 233 Fed., 135; Louisville, etc., Ry. Co. v. Mottley, 219 U. S., 467. Cases cited and distinguished: Johnson-Brown Co. v. Delaware, L. & W. Co. (D. C.), 239 Fed., 596'; Wells Fargo & Co. v. Cuneo (D. C.), 241 Fed., 727; Chicago & N. W. R. Co. v. Tecktonius Mfg. Co. (D. C.), 262 Fed., 715.
143 Tenn. 247Davis v. Hailey (1920)
1. STATUTES. Caption held not to show that act contained more than one subject. The caption of Acts 1919, chapter 182, declaring it was an act to regulate the licensing of real estate agents, etc., to define and punish offenses committed in violation of the act, to repeal that part of the act passed April 5, 1917, etc., and to amend portions of later acts and to amend other acts, those acts being for the purpose of raising revenue, is not shown by the last recital to contain more than one subject, in violation of Constitution article 2, section 17, the latter portion of the caption referring to the acts repealed or amended. (Post, p. 249.) Acts cited and construed: Acts 1919, ch. 182. Constitution cited and construed: Art. 2, sec. 17. 2. STATUTES. Act held not objectionable as relating to both po’ice and taxing powers. Acts 1919, chapter 182, declaring that it shall be unlawful for any person to engage in the business of a real estate agent without first obtaining a license, requiring applicants to give bonds, providing for penalties for engaging in business without a license, etc., and finally in section 8 imposing on agents licensed a privilege tax, is not objectionable as containing more than one subject in violation of Constitution article 2, section 17, on the ground that the act involved a separate exercise of the police and taxing powers, for a license in its truer sense is issued under the police power, and the entire act shows that the police power is exercised with reference to licenses, and the taxing power is exerted to the - game end, (Post, pp. 249,252.) , Cases cited and distinguished: Bell v. Hart, 143 Tenn., -; Mc- Millan v. City of Knoxville, 139 Tenn., 319. 3. LICENSES. Act requiring real estate brokers to pay license fee not tax measure because revenue is derived. Though Acts 1919, chapter 182, imposes a fee of $25 as a condition i to a license without which real estate men are forbidden to engage in business, it is not to be deemed in part a revenue measure, and therefore invalid on 'the theory that the exaction is out of proportion to the expense of issuing the license, for State officers must examine the bond' tendered, etc., and the mere fact that revenue results incidentally does not show the act to be a taxing one. {Post, ptD, 252, 253.) 4. CONSTITUTIONAL LAW. Persons not affected cannot raise constitutional question. Though Acts 1919, chapter 182, authorizes a fine of not less than $50 nor more than $500 upon real estate agents doing business without procuring a license, and Constitution, article 6, section 14, prohibits the levying of a fine in excess of $60 except by a jury, a real estate agent, fined only $50, cannot attack the statute as a violation of the constitutional provision. {Post, p. 253.)
143 Tenn. 254Vantrease v. Smith (1920)
1. MASTER AND SERVANT. ‘ ‘Employer’ ’ within compensation act need not have ten persons working at a fixed place. One using the services ot more than ten persons and having more than ten persons regularly in his employ is an “employer” within the meaning of Workmen’s Compensation Act, sections 2-4, 6, 19, and such ten persons need not he regularly engaged in work at the place of the injury, and need not work in the same county. (.Post, pp. 259, 260.) Acts cited and construed: Acts 1919, ch. 123. 2. MASTER AND SERVANT. Workmen’s Compensation Act elective, and hence not discriminatory. The Workmen’s Compensation Act is elective, and hence cannot be declared discriminatory. (Post, pp. 260, 261.)
143 Tenn. 262Arco Co. v. Garner & Co. (1920)
1. SET-OFF AND COUNTERCLAIM. Independent claim cannot be made subject of recoupment. A claim arising out of transactions unconnected with the transaction out of -which' plaintiff’s cause of action arose cannot be subject of recoupment. (Post, p. 264.) 2. SALES. Warranty implied of fitness for purpose. Where two barrels of paint were sold, there was an implied warranty that the paint was Suitable and fit for the purposes for which it was purchased. (Post, p. 264.) 3. SET-OFF AND COUNTERCLAIM. Claim for breach of'warranty of paint sold not subject of set-off as “unliquidated.” Claim of buyers of two barrels of paint' for damages against the seller for breach of warranty of suitability and fitness because the paint was in fact worthless held “unliquidated,” the demand for damages not haying been adjusted, settled, or agreed upon by the parties, so that the buyers could not set it off against the claim of the seller for the price of another barrel of paint. (Post, pp. 264-267.) Cases cited and distinguished: Martin v. Kirk, 21 Tenn., 531; Kirk-eys & Son y. Crandall, 90 Tenn., 532; Swift & Co. v. Warehouse Co., 128 Tenn., 93; Brady v. Wasson, 53 Tenn., 134.
143 Tenn. 268Smith v. Tate (1920)
1. APPEAL AND ERROR. Testimony considered, most favorably to prevailing party. Where the evidence was materially conflicting, the supreme court must take that view of it most favorable to the parties who were successful before the jury. (Post, p. 270.) , 2. SEARCHES AND SEIZURES. Evidence held to sustain finding sheriff had cause to believe felon was in defendant’s house. In actions against a sheriff and his deputies and surety for wrongful entry in plaintiff’s house, evidence that a marshal informed the sheriff and his deputies that one who had committed a murder had gone to the house of plaintiff, who was his uncle, held sufifl- . cient to show that the sheriff and his deputies had reasonable grounds for believing that the person wanted was in the house. (Post, pp. 270-273.) Case cited and approved: Frazier v. State, 117 Tenn., 430. 3. SEARCHES AND SEIZURES. First ten amendments to United States Constitution not restrictions on State». The first ten amendments to the United States Constitution are limitations on the powers of the federal government, not on the powers of the several States, so that, there is no merit in an assignment of error based on the alleged invalidity of Thompson Shannon Code, section 6999, as violating Constitution U. S. Amend. 4, prohibiting unreasonable searches and seizures. (Post, pp. 273, 274.) Cases cited and approved: Barron v. Baltimore, 7 Pet., 243: Fox v. Ohio, 5 How., 410; Davis v. Texas, 139 U. S., 651; Brown v. New Jersey, 175 U. S., 172; Safe Deposit Co. v. Stead, 232 U. S., 58. Code cited and construed: Sec. 6999 (T.-S.). 4. ARREST. Sheriff without warrant can enter house where he reasonably believes felon is. A sheriff in seeking to arrest one who has committed a felony, though he has no warrant for the arrest, can enter a house, breaking it open, if necessary, where he reasonably believes the felon then is, under Thompson-Shannon Code, section 6999, defining the powers of an officer to make arrests. {Post, pp. 274-277.) Cases cited and approved: McCaslin v.. McCord, 116 Tenn., 690; Monette v. Toney, 119 Miss., 846; Hawkins v. Com., 14 B.. Mon. (Ky.), 395. Case cited and distinguished: Com. v. Phelps, 209 Mass., 396. Code cited and construed: Sec. 6999 (T.-S.).
143 Tenn. 278State v. Bank of Commerce & Trust Co. (1920)
1. CHARITIES. Charitable trust held deferred until life tenant's death. A will giving the wife of testator a life interest in his real estate and giving the personal property above the amount necessary to pay debts and legacies and the remainder of the real property to a trustee to establish an old men’s home, which provided that upon the death of the wife the estate should be invested in the home, empowered the sale of real estate only after the wife’s death and provided for the investment of the personal property in interest-bearing securities until the wife’s death, clearly defers the establishment of the home until after the death of the wife," though meantime the ex-Confederate soldiers, for whose benefit the home was especially intended, would be rapidly passing away. (Post, VP. 284, 285.) Code cited and construed: Secs. 5165-87(8.). 2. WILLS. Trust cannot be accelerated before beneficiaries take interest, Where the beneficiaries of the trust take no interest therein until the time for investment comes so that they have no estate to be accelerated,-the equitable doctrine of acceleration of an estate or trust cannot be applied, especially where the exigency of the beneficiaries was one anticipated by testator. (Post, pp. 285, 286. Case cited and distinguished: Bennett v. Trust Co., 127 Tenn., 131. 3. CHARITIES. Trustees not required to .account before time for investment. The trustees, under a will directing the establishment of an old men’s home upon the death of testator’s wife, cannot be required to account for the funds in their hands prior to the time for such establishment at the suit of a District Attorney General, in the absence of any allegation of mismanagement or misapplication of the trrust funds. (Post, p. 28'6.)
143 Tenn. 287Goodyear v. Meux (1920)
1. LICENSES. Blue Sky Law applies to corporation engaged in wholesale drug business in State. A corporation organized under the Laws of Delaware which undertook to establish a wholesale drug business in the State held one which the Blue Sky Law was designed to regulate. (Post, p. 290.) Acts cited and construed: Acts 1913, ch. 31. Code cited and construed: Sec. 3608al39 (T.-S.). ■2. LICENSES.. Subscription contract held unenforcable where Blue Sky Law not complied with. A subscription contract taken by a corporation which was in default with reference to the statements exacted of it by the Blue Sky Law cannot be enforced against the subscriber. (Post, pp. 292, 291.) Acts cited and construed: A,cts 1891, ch. 122. Cases cited and approved: Stevenson v. Ewing, 87 Tenn., 45; Cary-Lomberd Lumber Co. v. Thomas, 92 Tenn., 587; Haworth v. Montgomery, 91 Tenn., 16; Morton v. Imperial Realty Co., 133 Tenn., 681; Payson v. Withers, Fed. Cas. No. 10,864; Bartlett v. Insurance.Co., 18 Kan., 369; Union Trust Co. v. Sickles, 125 App. Div., .105; First Nat. Bank v. Leeper, 121 Mo. App., 688. 3. LICENSES. Blue Sky Law not intended to regulate ordinary business. Acts 1st Ex. Sess. 1913, chapter '31, known as the Blue Sky Law, was not intended to regulate the ordinary business of corporations, domestic or foreign, within the State, but to protect investors. (Post, p. 291.)
143 Tenn. 292States ex rel. Thomason v. Branham (1920)
1. TAXATION. Exemption of $1,000 proper in case of collaterals. Under Acts 1919, chapter 46, sections 2, 3, imposing inheritance taxes on transfers to descendants, etc.', at one rate add on transfers to collaterals at another rate, an exemption of $1,000 should he allowed, though the entire transfer is to collaterals. (.Post, p. 296.) Acts cited and construed: Acts 1919, ch. 46, secs. 2, 3. Case cited and approved: State ex rel. v. Temple, 142 Tenn., 466. 2. TAXATION. $10,000 exemption, where transfer is to collaterals and direct descendants) etc. Where property passes partly to collaterals and partly to direct descendants, etc., there is, under Acts 1919, chapter 46, sections 2, 3, an exemption of $10,000. (Post, p. 297.) 3. TAXATION. Inheritance tax laws should he construed against State. Where the language is not clear, an inheritance tax law should he construed against the State. 4. TAXATION. Where property is transferred to many collaterals, there is only one exemption to estate. Under Acts 1919, chapter 46, sections 2, 3, imposing inheritance taxes at different rates on transfers of property to direct descendants and to collaterals, declaring that in determining whether any property falls within either exception the estate, the transfer of which may he the subject of taxation, shall be treated as a whole, or as one transfer without reference to the shares into which the estate may be subdivided, there can be only a single exemption to the estate of $1,000 in case of transfers to collaterals, notwithstanding in case of transfers of a large estate to numerous col-laterals such collaterals having no individual exemption may have surtaxes deducted from their shares pursuant to section 11, although their shares be very small. (Post, pp. 297-299.) Case cited and approved: Henson v. Monday et ah, 143 Tenn., -. 5. TAXATION". In case of transfer to collaterals and direct descendants, etc., transfers to each class should be considered as one. Under Laws 1919, chapter 46, sections 2, 3, where there are transfers to collaterals and transfers to ascendants, or descendants, etc., all that part going to collaterals must be treated as one transfer, and that part going to ascendants, etc., as another transfer; different rates of taxes being on the two transfers. (Post,, pp. 297-299.) Acts cited and construed: Acts 1919, ch. 46, secs. 2, 3.
143 Tenn. 300Austin v. State (1920)
1. FORQ-ERY. Obtaining signature by fraud held not “forgery.” Persons wbo obtained the signature of a person to a deed fraudulently by representing it to be an affidavit were not guilty of forgery under Thompson-Shannon Code, section 6596. (Post, pp. 306-310.) Acts cited and construed: Acts 1811, ch. 1, secs. 2, 3; Acts 1829, ch. 23, sec. 40. Cases cited and approved: People v. Pfeiffer, 243 Ill., 200; Wallace v. State, 70 Tenn., 29; Waltson v. State, 14 Tenn., 384; State V. Smith, 16 Tenn., 150; State v. Humphreys, 29 Tenn., 443; State v. Corley, 63 Tenn., 410; Garner v. State, 73 Tenn., 215; Chism v. Bank, 96 Tenn., 651; Weihl v. Robertson, 97 Tenn., 466. Case cited and distinguished: Hill v. State, 9 Tenn., 76. 2. FALSE PRETENSES. , Obtaining signature to deed held false pretenses. Persons obtaining signature of landowner to deed fraudulently by informing him- that it was an affidavit violated Thompson Shannon Code, section 6568, making it a penitentiary offense to obtain .by false pretense the signature of any person to any written instrument 'the false making of which is a forgery. (Post, p. 310.) 3. CRIMINAL LAW. Verdict of guilty under certain counts held ineffectual. Where defendants were charged in the first count with the crime ,of obtaining signature by false pretense, in- second count with conspiracy to defraud and actual consummation of the-conspiracy, in third count that one defendant counseled and procured the other to commit"'a felony, in the fourth count with forgery, and a verdict of “not guilty.’ was rendered on first count and “guilty” on the other counts, and it appeared that the alleged 'wrongful act consisted of obtaining a signature to a deed of land by false pretense, which is not forgery, verdict of guilty as to the second and third counts was ineffectual, and defendants were ordered discharged. (Post, pp. 310, 311.)
143 Tenn. 312Tennessee Central Railroad v. Vanhoy (1920)
1. PLEADING-. Permission to plaintiff to amend by including all averments of common-law negligence in one count not improper. In an action for the ‘death of plaintiff’s wife, killed at a railroad crossing, the action of the trial court in allowing plaintiff to amend his declaration so as to put all averments of common-law negligence in one count, separating them from averments of statutory negligence, was not errorr. (Post, pp. 325, 326.) 2. APPEAL AND ERROR. Allowance of amendment as to common-law averments not prejudicial in view of submission of cause on statutory counts. In a crossing accident case, permission .to plaintiff to amend his declaration by putting all averments of common-law negligence in a separate count was not prejudicial, where the case was submitted only on the statutory count. {Post, pp. 325, 326.) Code cited, and construed: Sec. 1574, subsecs. 3, 4. 3. RAILROADS. Omission of statutory signals negligence. Shannon’s Code, section 1574, subsection 3, requiring the sounding' of the bell or whistle when the train in one mile from town, and at short intervals until it reaches the depot, is mandatory, and a failure to comply with such requirement is negligence. {Post, pp. 326, 327.) 4. RAILROADS. Negligence in omiting statutory signals and lookout held question for jury. In an action for the death of one riding in an automobile struck at a crossing, evidence held sufficient to carry to the jury the question of the railroad company’s negligence in omitting the signals and lookout required by Shannon’s Code, section 1574, subsections 3 and 4. {Post, pp. 326, 327.) Cases cited and approved: Railroad v. Davis, 104 Tenn., 442; Graves v. Railroad, 126 Tenn., 164. 5. TRIAL. Verdict against joint tortfeasors must be joint. In an action for the death of plaintiff’s wife, killed while riding in an automobile which was struck by a train, where the jury first reported that they found in favor of plaintiff and assessed $5,000 damages against the railroad, company and $5,000 against the estate of the driver of the automobile, it was not error for the court to instruct that a joint verdict must be rendered, and, when the foreman, in response to questions, stated that' it was for plaintiff for $10,000, to enter judgment on such verdict; neither defendant objecting to the receiving of the verdict or requesting the jury be polled. {Post, pp. 327-329.) Case cited and approved: Railway & Light Co., v. Trawith, 118'Tenn., ' 273. 6. APPEAL AND ERROR. Presumption that court charged, correctly. Where the record did not show the court’s instructions on an issue, it will he presumed that the court correctly charged the jury. (Post, p. 329.) 7. TORTS. Railroad, company andi driver of motorcar held joint tort-feasors. Where the driver of an automobile was negligent in proceeding over a railroad crossing, and the railroad company’s servants in charge of a train which struck the automobile were also negligent in failing to give warning signals or to maintain a lookout, both the driver and the company are liable as joint tort-feasdrs to a guest in the car who was injured; their concurrent negligence producing the injury. (Post, pp. 329-333.) Cases cited and approved: Colegrove v. Railroad Co., 20 N. Y., 492; Railroad Co. v. Shacklett, 105 Ill., 364; Electric Railway Co. et al v. Shelton, 89 Tenn., 423. Cases cited and distinguished: Swain v. Tennessee, Copper Co., Ill Tenn., 430; Snyder v. Witt, 99 Tenn., 618. ,8. APPEAL AND ERROR. Request to charge must he made part of record hy hill of exceptions. Where requests to charge were not incorporated in the bill of exceptions but were only set put in the motion for new trial, they are not part of the record, and the propriety of refusing the same will not be considered. (Post, p. 333.) 9. APPEAL AND ERROR. Presumed that change covered the law of the case. Where defendant assigned as error the refusal of a request to charge, but the charge of the court was not made part of the record, it will be presumed by the appellate court that the charge covered the law of the case and was correct. (Post, p. 333.) Cases cited and approved: Frazier v. State, 117 Tenn., 430; State v. Robinson, 106 Tenn., 184; Railroad v. House, 96 Tenn., 552;) Temple v. State, 127 Tenn., 429. 10. APPEAL AND ERROR. Question of propriety of refusal to allow plea to jurisdiction not presented. An assignment of error by one of the defendants, complaining .that the court erred in refusing to allow withdrawal of a plea of not guilty and the filing of a plea to .the jurisdiction, need not he considered, where it did not appear that a plea to the jurisdiction was tendered with the motion, or, if tendered, it was not made a part of the record. (.Post, pp. 333, 334.) 11. PROCESS. Where service is had on one defendant, counterpart summons against others may he issued to any other county. Where service of process was had on one of the defendants in the county where action wasr- brought, counterpart summons, might be issued so as to give the court jurisdiction over other defendants residing in other countries. (Post, pip. 333, 334.) 12. APPEAL AND ERROR. Facts supporting assignment of error must appear from bill of exceptions, and not motion for new trial. An assignment, of error, complaining that the trial judge allowed the jury to take out and have before it maps and photographs offered in evidence while théy were considering their verdict, will be overruled, where the bill of exceptions failed to disclose that any such thing occurred, and it only appeared in a motion for new trial. (Post, p. 334.) 13. CARRIERS. Negligence of voluntary carrier held for jury. In an action against a railroad company and the driver of a motorcar which was struck by a train, brought by'á husband for the death of his wife, a guest in the car, evidence held, sufficient to carry to the jury the question of the negligence of .the driver of the car. (Post, pp. 334, 335.) 14. CARRIERS. Voluntary carrier’s diuty stated. One who invites another to ride in his automobile must exercise ordinary, care not to increase the danger of such undertaking or to create new dangers, and will' be liable to the person so invited foy injuries caused by his failure to exercise ordinary care for his guest’s safety. (Post, pp. 335-338.) Cases cited and approved: Patnode v. Foote, 153 App. Div., 494; ' Fitzjarrell v. Boyd, 123 Md., 497; Harvey v. Deep River Logging Co., 49 Or., 583; Wagner v. Missouri P. R. Co., 97 Mo., 512; Wilton v. Middlesex R. Co., 107 Mass., 108; Jacobs v. Jacobs, 141 La., 272; Turnpike Company v. Yates, 108 Tenn., 428. Cases cited and distinguished: Beard v. Klusmeier, 158 -Ky., 153; Perkins, Adm’x, etc., v. Galloway, 194 Ala., 265. 15. CARRIERS. Care required of guest of voluntary carrier stated. While ordinarily a guest in an automobile may rely on the assumption that the driver will exercise prop'er care and precaution, yet if the guest sees a danger which is not .obvious to the driver, he should give warning; likewise where the guest has superior opportunity to see dangers the driver should be warned, etc. (Post, pp. 338-340.) Cases cited, and approved: Shultz v. Old Colony St. R: Co., 193 Mass., 309; Colorado, etc., R. Co. v. Thomas, 33. Colo., 517. Cases cited and' distinguished: Knoxville Railway & Light Co. v. Vangilder, 132 Tenn., 489; Hurt v. Y. & M. V. R. Co,.,, 140 Tenn,, 623. 16. CARRIERS. Negligence of guest of voluntary carrier question of fact. Ordinarily the question o.f the negligence of guest in the motorcar in failing to observe dangers, etc., is for the jury. (Post,, p. 340.) Cases cited and approved: Clarke v.-Connecticut Co., 83 Conn., 219; Corley v. Railroad, 90 Kan., 70; Cladbourne v. Springfield St., ,R. Co., 199 Mass. 574; Wilson v. Electric R. Co., 52 Wash., 522. 17. DEATH: Nejglig'ence of deceased guest in motorcar held for jury. In an action brought against a railroad company and the driver of a motorcar for the death of plaintiff’s wife, a guest in the car which was struck by a train, the question whether the wife was guilty of negligence in failing to see and observe the train held for the jury. (Post, pp. 340, 341.) 18. DEATH. $10,000 for death of wife not excessive. When plaintiff’s wife was 21, in good health, and performed all of the duties incidental to keeping plaintiff’s house, an award of $10,000 for her death cannot be deemed excessive. (Post, pp. 341, 342.)
143 Tenn. 343Osborne v. Allen (1920)
1. APPEAL AND ERROR. Complainant repelled on court’s own mo- ' tion for unclean hands, regardless of absence of ruling on demurrer. On appeal in a suit in equity, it is immaterial that a demurrer on the ground that the bill showed complainant participated in the illegal acts, was not ruled upon, since the Supreme Court will, of its own motion, repel the complainant if the record shows that his participation in the illegal transactions brought him within the maxim requiring him to come into equity with clean hands. (Post, pp. 3.46-350.) Acts cited and construed: Acts 1915, qh. 118. 2. HIGHWAYS. Statute held not to authorize a change of location by road commissioners. Private Acts 1915, chapter 118, as amended by chapter 636 of the same Legislature authorizing construction of a road between two termini passing by three designated places, though it does not deprive the road commissioners of all discretion in locating the road, does prevent their locating it so a» not to pass within half a mile of one of the designated places. (Post, p. 350.) . 3. CONTRACTS. Note to secure illegal location of highway cannot be collected. A note payable to the road fund given to induce the road commissioners to locate a highway by the maker’s farm, which was contrary to the act authorizing the highway, partakes of the illegality of the transaction so as to render its collection unenforceable. (Post, pp. 351, 352.) 4. HIGHWAYS. Contribution to road fund to influence discretion in location is illegal. A contribution of money to the road fund, made for the purpose of influencing the discretion of the commissioners in locating the road, is contrary to public policy and illegal, though the commissioners had authority to locate the road on the desired line. (Post, pp. 352, 353.) 5. HIGHWAYS. Good faith of commissioners does not purge contribution to road fund of illegality. The fact that road commissioners acted in good faith in locating a highway along the best line, uninfluenced by a contribution made to the road fund to induce! location along that line, does not make the contribution legal. (Post, pp. 3-53, 354.) 6. HIGHWAYS. Fact that contribution to influence location was paid into road fund does not purge illegality. A contribution of money .to induce the location of a highway along a particular line is illegal, though it was paid into the highway funds of the county, and not to any officer. (Post, pp. 353, 354.) 7. EQUITY. Equity will not restrain action on note, where maker participated in illegality. Where the maker and the payees of a note alike participated in the illegal transaction in connection with which the note was given, equity will not aid the maker by restraining an action at law against him to enforce the payment of the note; the maxim that “he who comes into equity must come with clean hands” being applicable. (Post, pp. 354, 355.) 8. INJUNCTION. Equity, on dismissing suit to restain action on illegal note, will not grant other relief. Though ordinarily in a suit to restrain the prosecution of an action at law equity will require judgment to be confessed on dismissal of the bill or will render the judgment which should be rendered in that action, it will not give any directions where the action at law was on a note void for illegality in which both parties participated, but in such case will merely dismiss the complainant’s bill, and leave the parties to work out their rights and defenses in the action at law. (Post,, p. 355.) Case cited and approved: Haynes v. Bank, 106 Tenn., 426,
143 Tenn. 356Scott County National Bank v. Robinson (1920)
1. ATTACHMENT. Execution. Garnishment. Funds in court not subject to execution, attachment, or garnishment. Funds in the hands of .the clerk and master of the court subject to orders of distribution are not subject to execution or attachment at law or to garnishment in aid- of a creditor of a party entitled to a portion in the fund. (Post, p. 362.) Case cited and approved: Drane v. McGavock, 26 Tenn., 132. 2. CREDITORS’ SUIT. Maintainable to impound debtor’s interest in fund in court. Under the inherent jurisdiction of the chancellor, as well as by virtue of Code 1858, section 4282 (Shannon’s Code, section 6091), giving chancery court exclusive jurisdiction to aid creditor to subject property of a defendant which cannot be reached by execution, to satisfaction of the judgment or decree, a creditor can bring a bill-in equity to subject to the payment of his judgment debtor’s interest in a fund which has been paid into court. (Post, p. 362.) Codes cited and-construed: Sec. 4282 (1858); Sec. 6091 (S.). 3. CREDITORS’ SUIT. Pleading. Defense of property subject to execution must be raised by pleadings. In view of Code 1858, section 4283 (Shannon’s Code, section 6092) and Code 1858, sections 4309-4321, it is not necessary to the maintenance of a creditor’s suit to establish a lien on the debtor’s interest to funds paid'into court that it should be made to appear that an execution had been issued and returned nulla i>o?ics, if it is shown that the debtor is really insolvent and has no property subject to execution, and if the question is not raised by motion to dismiss, demurrer, or plea.in abatement. .(Post, pp. 362, 363.) Case cited and approved: Turley v. Taylor, 71 Tenn., 172. Code cited and construed: Sec. 4283 (1858) Sec. 6092 (S.). 4. CREDITOR’S' SUIT. Clerk not proper party to suit to impound Interest in fund in court. Tbe clerk and master of tbe chancery court is .the mere instrument to distribute a fund paid into court in accordance with tbe chancellor’s orders, and is therefore neither a necessary nor a proper party to a creditor’s suit to subject the interests of the judgment debtor in such fund to the payment of a creditor’s claim. (Post, pp. 363, 365.) Case cited and approved: Dews v. Olwill, 62 Tenn., 438. 5. CREDITOR’S SUIT. Creditor first impounding fund in court has priority. The rule that a creditor, whose diligence uncovers property which could not be seized on execution, acquires a lien by a creditor’s bill on such property prior to other creditors even though they may have judgments obtained prior to the judgment on which the suit was brought, applies where the fund uncovered is a fund which had been paid into court. (Post, p. 365.) Cases cited and approved: Dews v. Olwill, 62 Tenn., 432; Stahlman v; Watson (ch. App.), 39 S. W. 1055; Binns v. La Forge, 191 Ill., 606.
143 Tenn. 366Tom v. Price (1920)
1. USURY. Law governing fixed by good faith intent of parties. As respects the claim of usury, neither the place of execution nor of performance conclusively fixes the law governing a note, but this is to be determined from the parties’ intention gathered from the instrument in connection with the circumstances surrounding " the transaction, but such intent must have been entertained in good faith, and not to evade any usury law, and the presumption is against an unlawful intent. (.Post, pp. 380-383.) Cases cited and approved: Hubble v. Land Co., 95 Tenn., 585; Coghlan v. Railroad Co., 142 U. S., 101; Bank v. Mann, 94 Tenn., Tenn., 17; Trabue v. Short, 45 Tenn., 293; Senter v. Bowman, 52 Tenn., 14; Bolton v. Street, 43 Tenn., 31; Overton v. Bolton, 56 Tenn., 762; Case cited and distinguished: Hall v. Cordell, 142 U, S., 116. 2. USURY. .Law of Alabama as to rate of interest held to apply. Where a transaction in which notes were given bearing eight per cent, interest took place in Alabama, where such rate was lawful, and the payee resided in West Virginia, and the maker in Tennessee, where they were made payable at a bank with which the maker transacted business for his convenience, held that the law of Alabama applied, and the notes were not usurious because interest rate was higher than allowed by Tennessee law, and the notes were enforceable in Tennessee. (Post,.pp. 383, 384.)
143 Tenn. 385Pearson v. State (1920)
1. HOMICIDE. Shot at retreating man justified if circumstance indicate intention to withdraw. The mere fact that deceased was fired upon while he was retreating does not deprive accused of the right to rely on self-defense, if under all the circumstances he entertained a justifiable belief that deceased was not retreating from the fight, but would immediately renew it, and that the imminent danger still existed. (Post, p. 389.) 2. CRIMINAL LAW. Argument accused was murderer and adulterer held improper. . In a prosecution for homicide, argument by prosecuting attorneys against freeing accused to continue his life of murder and adultery was inflammatory and improper, and not justified by evidence that accused had previously killed a man, in a prosecution for which he was acquitted, or by the testimony of a woman that she had had children by him. (Post, pp. 390, 391.) 3. CRIMINAL LAW. Misconduct of prosecuting attorney held prejudicial. Improper argument is not harmless, notwithstanding defendant’s admission he shot deceased while the latter was going from him, and the verdict convicted' him only of voluntary manslaughter, since his admission did not deprive him of the right of self-defense if deceased intended to renew the fight. (Post, pp. 391, 394.) Case cited and distinguished: Turner v. State, 72 Tenn., 210. 4. HOMICIDE. Dying declarations should be considered in light of circumstances. Dying declarations, whioh are an exception to the rule against hearsay, but which are apt to be given greater value than testimony of witnesses by the jury, should be weighed in consideration of the fact they are made when declarant is not in condition to speak calmly, and generally made to his friends out of the presence of accused, so that facts favorable to accused are not brought out. (Pos% pp. 3.94-396.) Case cited and approved: Still v. State, 125 Tenn., 94. Case cited and distinguished: Poteete v. State, 68 Tenn., 261. 5. CRIMINAL LAW. Instruction on weight of dying declarations must he given without request. In a prosecution for homicide, where the dying declaration of deceased was admitted in evidence, it was reversible error for the court to omit to instruct the jury on the weight to be given to such declarations, even though no request for such instruction was made. (.Post, pp. 396-398.) Cases cited and approved: Ripley Case, 39 Tenn., 217; Allsup Case, 5 La., 362. Case cited and distinguished; Jollay’s Case, 130 Tenn., 309.
143 Tenn. 399Hinton Laundry Co. v. De Lozier (1920)
MASTER AND SERVANT. Injury while doing laundry work for co-employee after working hours held not one “arising out of and in course of employment’’ within Workmen’s Compensation Act. A laundry employee, injured while pressing a skirt for the accommodation of a fellow employee, after the regular working hours had ceased, on a day of the week when individual laundry work was forbidden by a rule, was not entitled to compensation as for a personal injury “arising out of and in the course of the employment,-’ within Workmen’s Compensation, Act, section 2, sub-sec. (d.). Acta cited and construed: Acts 1919, ch. 123. Cases cited and approved: Bayer v. Bayer, 191 Mich., 423; Oates v. Turner, W. C. & Ins. Bep. (Eng.), 335; Joy v. Phillips (1916), I. K. B. (Eng.), 849; Griffiths v. Robins (1916), 10 B. W. C. C. (Eng.), 90.
143 Tenn. 406Wiggins v. Cheatham (1920)
WILLS. Removal of stock of goods and temporary suspension from business held not to work ademption of legacy of business. The removal by proprietor of whisky business of his stock of whisky and fixtures from a location where he had been conducting his business, and the storage thereof in a public warehouse with the intention of resuming business at some other location, did not work an ademption of legacy, in previously executed will, of his “entire • whisky business now conducted at” specified address at which business had been so conducted, though proprietor died while stock was in storage, before the resumption of business, since the specific property bequeathed was in existence at time of his death and subject to identification. Cases cited and distinguished: Ford v. Cottrell, 141 Tenn., 176; Banking Co. v. Balfour, 138 Tenn., 390.
143 Tenn. 413Mooney v. Hicks (1920)
COURTS. County court’s decree in partition appealable to Court of Civil Appeals as decree in equity; “court of equity.” Under Act 1907, chapter 82, section 7 (Shannon’s Code, section 6231), giving the Court of Civil Appeals jurisdiction of all cases brought up from courts of equity or chancery courts except in specified cases, the Court of Civil Appeals and not the Supreme Court has jurisdiction of an appeal from county court’s decree in a partition suit; the county court being a “court of equity” within such statute. Acts cited and construed: Acts 1907, ch. 82, sec. 7. Cases cited and approved: Burns v.' City of Nashville, 132 Tenn., 435; Bason v. Gaines, 127 Tenn., 662; Shaller v. Garrett, 127 Tenn., 665; Nelson v. Theus, 5 Higgin?, 87. Code cited and construed. Sec. 6321 (S.).
143 Tenn. 418Henson v. Monday (1920)
1. TAXATION. Inheritance tax is a privilege tax on legatees, and not on testator. The collateral inheritance tax exacted by Thompson-Shannon’s Code, section 724 et seq., is a privilege tax, laid upon the legatees and devisees under the will, and not upon the testator, being a tax on the right to acquire, and not on the right toi transmit, in view of section 730. (Post, p. 421.) Cases cited and approved: Shelton v. Campbell, 109 Tenn., 690; In re Merriam, 141 N. Y., 479; United States v. Perkins, 163 U- S., 625; State v. Alston, 94 Tenn., 674; 'English v. Crenshaw, 120 Tenn., 531; Knox v. Emerson, 123 Tenn., 409; Crenshaw v. Moore, 124 Tenn., 528; Bailey v. Henry, 125 Tenn., 390. ' Codes cited and construed: Secs. 724, 730 (T.-S.). 2. TAXATION. State not liable to taxation in absence of statute. Neither the State nor any of its arms or agencies are liable to taxation, unless expressly so declared by statute, being impliedly excluded from general tax laws. (Post, p. 422.) Case cited and approved: Morristown v. Hamblen County, 136 Tenn., 242. 3. TAXATION. Bequest to state agencies not subject to inheritance tax. Bequest to the University of Tennessee, the city of Knoxville, the Knox County Industrial School, and several counties held not subject to inheritance tax under Thompson-Shannon’s Code, section 724 et seq.; such legatees being agencies of the State, and the State’s privilege to take property under a will • not being subject to a general tax law. (Post, p. 422.) Cases cited and approved: Knowlton v. Moore, 178 tf. S., 41; Re Macky, 46 Colo., 79; Snyder v. Bettman, 190 U. S., 249.
143 Tenn. 423Webb v. Knox County Transmission Co. (1920)
1. EMINENT DOMAIN. Supplying of electric current is a “public use. ’ ’ The supplying of electric current for lighting, heating and motive power, where all who desire are entitled to demand a supply for such purpose, is a “public use,’’ for which condemnation may be allowed. (Post, p. 432.) . . Acts cited and construed:- Acts 1901_, ch. 144;' Acts 1909, ch. 127, 151. Case cited and approved: Power Co. v. Webb, 123 Tenn., 584. 2. EMINENT DOMAIN. That electric power company did not supply every individual held not to effect public use. Where an electric power company supplied current to the general public without discrimination at uniform rates, the ‘fact that it did not supply individual users at points along its line, unless there was sufficient demand to warrant the installation of transformers, etc., does not establish that the use was not a public one, so as to deprive the power company of the right of condemnation. (Post, pp. 432, 435.) Cases cited and approved: N. Y., L. & W. R. Co. v. Union Steamboat' Co., 99 N. Y., 12; C. & W. I. R. Co., v. I. C. R. Co., 113 Ill., 156; Crolly v. Minneapolis & St. Louis Ry. Co., 30 Minn., 541; Snyder v. B. & 0. Railroad Co., 210 Pa., 500. Casesi cited and distinguished: Rockingham County Light & Power Co. v. Hobbs, 72 N. H. 537; Railroad v. Transportation Co., 128 Tenn., 283; Ryan y. Terminal Co., 102 Tenn., Ill; State ex rel. Dominick v. Superior Court of King County, 52 Wash., 196; Calor Oil & Gas Co. v. Franzell, 128 Ky., 715; State ex rel. Trimble y. King County Superior Court, 31 Wash., 445. 3. EMINENT DOMAIN. Fact that condemning corporation is affiliated with others does not destroy right. Where ,lands were sought to be condemned for a power company’s transmission line, the fact that the power company was affiliated with or promoted by other corporations will not destroy its right of condemnation. (Post, pp. 435-437.) Cases cited and appi’oved: Railroad Co. v. Cable Co., Ill Fed., 842; Postal Telegraph Co. y. Railroad Co., 23 Utah, 474; Oliver v. Bridge Co., 197 Pa., 344; Railroad v. Railway 116 Tenn., 504. 4. EMINENT DOMAIN. Power of eminent domain cannot he defeated because corporation is violating anti-trust laws. The fact that the condemning corporation may be violating the antitrust laws is no defense which will deprive it of the right ’ to condemnation. (Post, pp. 437-439.) 5. EMINENT DOMAIN. Condemnation cannot he defeated on ground 1 right of way was improperly located. The power of an electric company to condemn a right of way for its power line cannot be defeated on the ground that the right of way was improperly located, being too close to a village, for the question of location is for the condemnor, and it further appeared that such'a line passed through a more populous village. (Post, pp. 439-441.) Cases cited and approved: Railway v. Campbell, 109 Tenn., 655; Railroad v. Union City, 137 Tenn., 500; Gamble v. Paine, 141 Tenn., 551; Western Union Telegraph Co. v. Railroad, 133 Tenn., 710. Case cited and distinguished; Railway v. Memphis, 126 Tenn., 267. 6. EMINENT DOMAIN. That condemnor diid not generate its own electricity is no defense to condemnation. That a distributing power company did not generate its own elec, tricity, etc., but acquired it from another company, is no defense to eminent domain. (Post, pp. 441, 442.) 7. EMINENT DOMAIN. Acts under which power company was chartered not invalid, because not restricting use of condemned property. The right of a power company ' organized under the general corporation laws, and more, especially Acts 1901, chapter 144, and Acts 1909, chapters 127, 151, to condemn lands, held not open to attack on the ground that the acts were violative of Constitution. ' article 1, section 21, because they did not restrict to a public use alone the use of the property authorized to be' condemned. (Post, p. 442.) Case cited and approved: Noell v. Power Co., 130 Tenn., 245.
143 Tenn. 443Mays v. State (1920)
1. HOMICIDE. Jury must assess punishment and verdict not doing so is a nullity. , Under Acts 1919, chapter 5, providing that, when any person is con- • victed of murder in the first degree, the jury shall fix the punishment, which shall be death, or the jury may, if of opinion that there are mitigating circumstances, fix the punishment at imprisonment in the penitentiary for life, or for some period over twenty years, the exclusive power to fix' the penalty is intrusted to the jury, and a verdict not fixing the punishment and a judgment thereon are nulíities. {Post, pp. 444-449. Acts cited and construed: Acts 1919, ch. 5. Case cited and distinguished: Gholston v. State, 143 Tenn., 126. Code cited and construed. Secs. 4601, 5257 (1858). 2. HOMICIDE. Verdict imposing less than death penalty need not state mitigating circumstances. Under Acts 1919, chapter 5, authorizing the. jury to fix the punishment for murder in the first degree at imprisonment, if of option that there are mitigating circumstances, no finding of mitigating circumstances is required in the verdict. {Post, pp. Acts cited and construed: Act 1919, ch. 5. Cases cited and approved; Temple v. State, 127 Tenn., 435; Murphey v. State, 47 Tenn., 516; Turner v. State, 50 Tenn., 452; State v. Becton, 66 Tenn., 138. Code cited apd construed: Sec. 6452, 6458 (T. S.).
143 Tenn. 452Jackson v. Bell (1920)
1. APPEAL AND ERROR. No review of evidence in absence of bill of exceptions. Evidence cannot be reviewed in tbe absence of a bill of exceptions. (Post,, pp. 454-456.) 2. APPEAL AND ERROR. Bill of exceptions not showing when signed not part of record. A purported bill of exceptions signed by the trial judge, but not filed below and failing to show when the trial judge signed it, held insufficient as not part of the record. (Post, pp. 454-456.) Acts cited and construed: Acts 1915, ch. 131. 3. STATUTES. Act creating office of fire prevention commissioner held not invalid as containing matter not within caption. Public Acts 1915, chapter 131, creating the office of fire prevention corfimissioner deputy commissioner, and assistants, defining their powers, fixing compensation, and providing ways and means to enforce the act and penalties for violation thereof, held not invalid as containing matters not within the purview of the caption in violation of Constitution, article 2, section 17. (Post, p. 456.) Cofistitution cited and construed: Art. 2, sec.' 17. 4. STATUTES. Act creating office of fire prevention commissioner held not invalid as class legislation. Public Acts 1915, chapter 131, creating the office of fire prevention commissioner and providing for the enforcement of his orders, held not to violate Constitution, article 11, section 8, as class legislation, the act hearing alike on all citizens owning property especially liable to fire and which is suituated so as to endanger life or property. (Post, pp. 457-459.) 5. CONSTITUTIONAL LAW. Eminent domain. Act authorizing destruction of property liable to fire held within police power. Public Acts 1915, chapter 131, creating the office of fire prevention commissioner and conferring upon his authority to have premises found to be especially liable to fire remved or remedied and repaired, torn down, demolished, materials removed, and all dangerous conditions remedied as the case may be, held not .to violate Constitution, article 1, section 21, and article 11, section 8, as authorizing the taking of the owner’s property without his consent and without compensation and not according to the law of the land; the destruction of property liable to fire being within the police power. (Post, pp. 459-461.) Cases cited and approved: York v. Hargadine, 142 Minn., 219; Swett v. Sprague, 55 Me., 190; Bunge v. Glerum, 37 N. D, 618; State v. Norvell 137 Tenn., 82. Cases cited and distinguished: Bailroad Co. v. Moriarity, 135 Tenn., 446; Theilan v. Porter, 82 Tenn., 622. Constitution cited and construed: Sec. 21, art. 1; Sec. 8, art. 11. 6. HEALTH. Legislative intent in enacting statute creating fire prevention commissioner stated. Public Acts 1915, chapter 131, creating the office of fire -prevention commissioner and providing for procedure against fire hazards, held, to be aimed solely at fire hazards, and should be administered with caution. (Post, pp. 461, 462.)
143 Tenn. 463State v. Matthews (1920)
1. INDICTMENT AND INFORMATION. Larceny. Indictment held not to charge larceny. Indictment, charging that, defendant, being agent or clerk of a company, and having, receiving, and taking into his possession and under his care an amount of money, unlawfully, fraudulently, and feloniously embezzled and converted it to his use, without ■the consent of the company, held not to have, charged larceny, despite the language of a following paragraph that defendant feloniously took, stole, and carried away the amount; such language being intended as part of the charge of embezzlement, and open to treatment as surplusage. (Post, pp. 468/469.) 2. EMBEZZLEMENT. Larceny. “Embezzlement” defined, and distinction between offenses stated. If money or property goes into the possession of an employer before it goes into the possession of his employee, the employee’s criminal taking and appropriation of it does not constitute embezzlement, but larceny; “embezzlement” being the fraudulent appropriation of such property as the statute makes the subject of embezzlement hnder the circumstances in the statute by the person embezzling to the injury of the owner, the money or property coming directly from a third person into the hands of the employee in the course of his employment and being appropriated by him, while trespass, which is impossible where a servant takes his master's property from a third person, is essential to constitute the offense of larceny. (Post, pp. 468, 469.) Case cited and distinguished: Johnson 'v. State, 68 Tenn., 281. 3. EMBEZZLEMENT. Private embezzler cannot obtain immunity by repayment. Despite Thompson-Shannon’s Code, section 6575, exempting a public officer from prosecution on repayment of funds embezzled by him, section 6575, based on Acts 1834-44, chapter 190, section 1, but not containing the proviso of section 3, applying to public officers, does not afford an embezzler of private funds immunity on paying back or refunding such funds to his employer. (Post, pp. 470-476.) Acts cited and construed. Acts 1843-44, chs. 190, sec. 1, ch. 82, secs. 1, 2, 3. Cases cited and disapproved: Allen v. Dunham, 92 Tenn., 269; Davis v. State, and Cheek v. State, Jackson, 1892; People v. Tompkins, 186 N. Y., 413. Cases cited and distinguished: Cole v. State, 134 Tenn., 645 State ex rel. v. Baseball Club, 127 Tenn., 307; Arnold v. Knoxville, 115 Tenn., 175. Code cited and construed Secs. 6574, 6575 (T-S.). 4. COURTS. Rule of stare decisis not applied to give immunity to private embezzler who makes restitution. The rule of stare decisis of limited application in cases involving penal statutes, should not be applied to afford an embezzler of private funds immunity from prosecution on repayment of such funds to his employer under Thompson-Shannon’s Code, section 6576. (Post, p. 476.) Code cited and construed: Sec. 6576 (T.-S.).
143 Tenn. 477Thompson v. City of Chattanooga (1920)
1. MUNICIPAL CORPORATIONS. Service on mayor of notice of accident on street must he alleged. The notice prescribed by Public Acts 1913, chapter 55, to be served on the mayor of a city, stating time and place where injury was received in street, must be alleged, to entitle injured party to maintain his suit and offer proof of notice. {Post, pp. 484, 485.) Acts cited and construed: Acts 1913, ch. 55. Cases cited and approved: Hughes v. City of Nashville, 137 Tenn., 177; City of Nashville v. Black, 219 S. W., 1043; Barrett v. Mobile, 129 Ala., 179; Bigelow >v. Los Angeles, 141 Cal., 503; Columbus v. McDaniel, 117 Ga., 823; Atchison v. King, 9 Kan., 550; Lincoln v. Finkle, 41 Neb., 575; Reining v. City of Buffalo, 102 N. Y., 308; Philomath v. Ingle, 41 Or., 289. 2. PLEADING. No error in refusing to permit amendment to conform to proof after dismissal. Court did not err in refusing to permit plaintiffs to amend their declaration to make it conform to the proof, where the motion to amend was not made until after the court had acted upon defendant’s motion for a new trial, and had set aside the verdict for plaintiff, sustained the motion for a directed verdict, and had dismissed the suit; plaintiffs having had the question specifically called to their attention pending the motion for a new trial. {Post, pp. 485-487.) Case cited and approved; Railroad v. Brown, 125 Tenn., 354.
143 Tenn. 488Miller v. Washington County (1920)
1. HIGHWAYS. Tinder statute commission empowered to bring action and employ attorney. Washington County Good Roads Commission, being a gwcisi-public corporation created by Private Acts 1917, chapter 25, and expressly empowered thereby to do all things necessary to carry out the purposes of the act, can, as a necessary incident to such power, employ counsel and institute a suit necessary to enable it to accomplish such purposes. (Post, pp. 495, 496.) Acts cited and construed: Acts 1917, ch. 25. Cases cited and approved: Jonesboro v. McKee,-10 Tenn., 167-170; Mallory v. Hanaur Oil Works, 86 Tenn., 598; Union-Bank v. Jacobs, 25 Tenn., 515-521. 2. HIGHWAYS, rumployment of counsel by commission not in violation of Code. Act of Washington County Good Roads Commission in employing counsel to prosecute an action instituted by it to compel the chairman and- clerk of the county court to sign and countersign bonds of the county to be used for construction of a system of highways under Private Acts 1917, chapter 25, is not invalid by reason of Shannon’s Code, sections 1629, 5768, as to the district' attorney or Attorney General representing the county; the first section referring to appeals from decisions as to opening or changing a road., and the second section being limited to criminal cases. (Bost* •pp. 496-500.) Acts cited and construed: Acts 1917, ch. 25; Acts 1919, ch. 90; Acts 1845-46, ch. 122. Cases cited- a.nd approved. State v. Jesse Adler et al., 48 Tenn., 547; State v. True, 116 Tenn., 294; Codes cited and construed: Secs. 1629, 5768 (S.); Secs. 4465-4470 (1858). 3. JURY. Guaranty in Constitution does not refer to chancery cases. Constitution,, article 1, section 6, providing that the right of trial by jury shall remain inviolative, refers not to suits brought in chancery, but alone to actions triable at common law. {Post, pp. 500, 501.) Cases cited and approved; Neely v. State, 63 Tenn., 180; McGinnis v. State, 28 Tenn., 53; Goddard v. State, 10 Tenn., 99; Jackson v. Nimmo, 71 Tenn., 613; Allen v. Saulpaw, 74 Tenn., 477. 4. JURY. No absolute right in original chancery suit. Under Public Acts 1919, chapter' 90, sections 1-3, among other things repealing Code 1868, sections 4465-4470, there is no absolute right to a trial by jury in a suit of which the chancery court had inherent equitable jurisdiction, but the submission of facts, to a jury is again discretionary with the chancellor. {Post, pp. 501, 502.) Acts cited and construed: Acts 1919, ch. 90, secs. 1-3; Acts 1877, ch. 97. Code cited and construed: Code 1858, secs. 4465-70. 5. JURY. No right in suit to reach trust fundi A suit to reach a trust fund in the hands of Washington County Good Roads Commission is one of which the chancery court had inherent equitable jurisdiction, so that there is no absolute right to a trial by jury of the facts therein. {Post, p. 502.) 6. ATTORNEY AND CLIENT. Agreement for fixing fees held ta require reasonable amount. Any agreement between highway commissioners and attorneys employed by them to conduct a suit that the commissioners should fix the attorney’s compensation on termination of the litigation requires the sum fixed to be reasonable and fairly commensurate with the services rendered. {Post, pp. 502-504.) 7. ATTORNEY ANI> CLIENT. Amount awarded as attorney fee in suit involving constitutionality of statute held reasonable. $4,500 allowed to attorneys for services below and Qn appeal in successfully prosecuting a mandamus suit by the Washington County Good Roads Commission to compel the chairman and clerk of .the county court to sign and countersign bonds of the county to the amount of $750,000, to be used for construction of highways, under Private Acts 1917, chapter 25, the only question being the constitutionality of the statute, is a reasonable fee; it not. being like a case to recover that amount, in which failure would entail a heavy financial loss on the client. (Posi, 502-504.)
143 Tenn. 505Johnson Coffee Co. v. McDonald (1920)
1. MASTER AND SERVANT. Injury while returning with lunch to employer’s premises held to “arise out of and in course of employment” within Compensation Law. Where an employer permitted his employees1 to eat their lunch upon the premises, the death of an employee which occurred while she was returning to her place of work in an elevator operated by her employee, after having procured her luncheon outside, for the purpose of eating it within the place of work, arose out • of and in the course of her employment within Workmen’s Compensation Law, section 2. (Post, pp. 510-512.) Acts cited and construed: Acts 1919, ch. 123. Cases cited and approved: Terleckt v. Strauss, 85 N. J. Law, 454; ■Rayner v. Furniture Co., 180 Mich., 168; Clem v. Chalmers Motor Co., 178 Mich., 340; In re Sundine, 218 Mass., 1; Armstrong v. Redford, (1920) A. C. 757. 2. MASTER AND SERVANT. Dependency within Compensation Law determined as of time of accident. Dependency entitling parties to compensation under the Workmen’s Compensation Law is to he determined as of the time ofl the accident, unaffected by subsequent conditions. (Post, pp. 512-514.4 Cases cited and approved: Newton v. Rhode Island Co. (R. I.), 105 Atl., 363; Birmingham v. Westinghouse Electric Co., 180 App. Div., 48; In re Yeople, 182 App. Div., 438; Miller v. Riverside Storage Co„ 189 Mich., 360. Cases cited and distinguished: Pryce v. Navigation Co., (1902) 1 K. B., 221; Bott’s Case, 230 Mass., 152; State ex rel, Radisson Hotel v. District Court, 143 Minn., 144. 3. MASTER AND SERVANT. Compensation Law (given broad con-' struction. The Workmen’s Compensation Law should be given a broad construction to accomplish its purpose to provide for dependents of the employee. (Post, p. 514.) 4. MASTER AND SERVANT. Children whose father is living may be allowed compensation as being dependent upon- mother. Workmen’s Compensation Law, section 30, subsections 9-13, dealing with the question of compensation to be paid in death cases, recognize that dependency as a matter of fact may exist on the part of a husband or children upon the wife and mother, so that the court may find the children actually dependent upon the mother, though their divorced father was still living and had not. been relieved of his obligation to support them, and had secured employment as a means of supporting them after the mother’s death. (Post, pp. 514-516.) 5. MASTER AND SERVANT. Conclusive presumption of dependency on farther does not exclude proof of actual dependency on mother. The provision of Workmen’s Compensation Law, section 30, creating a conclusive presumption that children under sixteen are wholly dependent on the father, means that compensation shall be paid to such children for the death of the father, whether they are as a matter of fact dependent upon him or not, but does not exclude proof in proceedings to recover compensation for the death of the mother that the children were in fact dependent upon her earnings, though the father was still living. (Post, pp. 514-516.) Acts cited and construed: Acts 1919, eh. 123, sec. 30, subsecs. 9-13. Cases cited and approved: In re Carroll, 65 Ind. App.„ 146; Parson v. Murphy, 101 Neb., 542; Sweet v. Sherwood. 40 R. I., 203; Purdy v. Watts, 91 Conn., 214.
143 Tenn. 517Vines v. Vines (1920)
1. PERPETUITIES. Conveyance to executor with directions not to sell for ten years 'but to pay rent to certain beneficiaries held, active trust, and not void. Where testator devised two tracts of land to bis executor in trust with directions not to sell them for ten years, but to rent out, collect the rents, pay the taxes, insurance, and improvements, and then pay out of such rents such sums to two sisters as the trustee in his discretion considered necessary for their comfort and support, not to exceed $100 per month to each, the trust was an active one, and not contrary to the statute against perpe-tuities. (Post, pp. 525, 526.) Case cited and approved. Jourolmon v. Massengill, 86 Tenn., 81. 2. WILLS. Intent of testator prevails in questions of construction. It is a cardinal rule in the construction of wills that the intention of testator prevails, and the courts always give effect to that in- . tention when ascertained. (Post, pp. 526-531'.) Case cited and approved: Henson v. Wright, 88 Tenn., 501. Cases cited and distinguished: Gray v. Ward, 52 S. W., 1028; First Nat. Bank of Nashville v. Nashville Trust Co. et aL (Ch. App.), 62 S. W.. 392. 3. WILLS. Conveyance to executor in trust held not to give beneficiary vested interest in estate. Where testator devised two parcels of land to his executor in trust with directions that they were not to be sold for ten years, and ■that out of the rents executor was to pay to two sisters such an amount per month for their support as in his discretion he considered necessary, not to exceed $100 per month, the sisters took no vested interest in the estate, but would become vested with such funds only as tbe trustee saw proper to pay them. (Post, pp. 531, 532.) 4. WILLS. Consent of beneficiaries held insufficient to terminate trust for their benefit. Where testator devised certain parcels of land to his executor in trust with directions that they were not to be sold for ten years, but that from the rent the executor was to pay to two sisters such amounts as in his discretion he considered necessary for their comfort and support, that all the parties in interest, including such sisters, who were sui juris, agreed that the trust might be considered terminated, and that the property be sold and a lump sum payment made, held not to terminate the trust, .the sisters having no vested interest in the estate, and it being beyond their power to destroy the manifest direction of the testator. (Post, pp. 532-534.) Cases cited and approved: Young v. Snow, 167 Mass., 287; Kendall v. Gleason, 152 Mass., 457; Hoffman v. N. B. Trust Co., 187 Mass., 205; Kimball v. Blanchard, 101 Me., 383; Cuthbert v. Chauvet, 136 N. Y., 326; Lent v. Howard, 89 N. Y., 169; Douglas v. Cruger, 80 N. Y., 15; Danahy v. Noonan, Í76 Mass., 467; Moore’s Estate, 198 Pa., 611; Carney v. Kain, 40 W. Va., 758; Olsen v. Youngerman, 136 Iowa, 404; Robbins v. Smith, 72 Ohio St., 1; Rector v. Dalby, 98 Mo. App., 189; Harris v. Harris, 205 Pa., 460; Donaldson v. Allen, 182 Mo. 626. Case cited and distinguished: Kimball v. Blanchard, 101 Me., 383. 5,, TRUSTS. Trustee and beneficiaries in spendthrift trust cannot by agreement terminate it. The trustee and beneficiaries in a spendthrift trust cannot by mutual agreement terminate the trust and defeat the purpose of the donor to give to the beneficiaries a support which shall be free from the claims of creditors. (Post, pp. 534-538.) Cases cited and approved. Merchant’s Nat. Bank v. Crist, 140 Iowa, 308; Stewart’s Estate, 253 Pa., 277; Meek v. Trotter, 133 Tenm, 145. Case eited and distinguished: Nichols v. Eaton, 91 U. S., 716.
143 Tenn. 539Howard v. State (1920)
1. INDICTMENT AND INFORMATION. “Information” defined, and common-law procedure stated. An “information” is a written accusation of crime, preferred by a public prosecuting officer, without the intervention of a> grand jury, there being two kinds under English common-law procedure, the first for an offense- against the king, filed Without leave of court by the Attorney General ex officio; the second being! against private individuals and exhibited by the masters of the crown. (Post, pp. 542-546.) Acts cited and construed: Acts 1778, eh. 5, sec. 2. Cases cited and approved: Weeks v. United States, 216 Fed., 292; Pearson v. Wimbish, 124 Ga., 701. Code cited and construed: Sec. 7059 (T.-S.). 2. COMMON LAW. Not in force in Tennessee as entirety. The common law in its entirety and as a distinctive system of laws has never been in force in Tennessee, but only such part thereof has been in force in the State as had been adopted and was in force in North Carolina, when the territory embraced in Tennessee was ceded by North Carolina to the federal government. (Post, pp. 546-549.) Cases cited and approved: Smith v. Bank, 115 Tenn., 12; Moss v. State, 131 Tenn., 94. Cases cited and distinguished: State v. Hardie, 23 N. C., 48; State v. Crook, 91 N. C., 536-540. 3. INDICTMENT AND INFORMATION. Use of criminal information» not permissible in Tennessee. The use of criminal informations, except for small or petty offenses in the nature of violations of municipal ordinances, was not a part of the common law of North Carolina at the, time of the cession by that State of the territory embraced in the State of Tennessee; its use as a method of criminal procedure being prohibited and denied in North Carolina, so that, in the absence of statutory authorization, it is not now permissible in Tennessee, {Post, pp. 549-552.) Cases cited and approved: McGinnis v. State, 28 Tenn., 44; State v. Sexton, 121 Tenn., 35; Trigally v. Memphis, 46 Tenn., 382; Hogan v. Chattanooga, 2 Shan. Cas., "339; O’Haver v. Montgomery, 120 Tenn., 448. Code cited and construed: Sec. 6952 (T.-S.). Constitution cited and construed: Art. 1, see. 9; Art. 6, sec. 14.
143 Tenn. 553Chattanooga Iron & Coal Co. v. Hanssard (1920)
APPEAL AND' ERROR. Motion not spread on minutes nor included in hill of exceptions forms no part of record. A written motion for new trial with the transcript which appears to hare been filed in the court below, but was not spread upon the minutes of the trial court and was not included in the bill of exceptions, forms no part of the record, and the action of the court thereon cannot be considered. Cases cited and approved: Railroad v. Egerton, 98 Tenn., 541; Railroad Co. v. Johnson, 114 Tenn., 632;- Box Co. v. Gregory, 119 Tenn., 532; Allen v. State, 8 Tenn., 294.
143 Tenn. 555Hale v. Sovereign Camp Woodmen of World (1920)
1. PRINCIPAL AND AGENT. Agent’s knowledge as to material fact imputable to principal. The knowledge of an agent as to a material fact hearing upon a .contract which he is employed to solicit or negotiate on behalf of his principal is imputable to the principal. (Post, pp. 561, 562.) Cases cited and approved: Insurance' Co. v. Sorrels, 60 Tenn., 352; Insurance Co. v. Hancock, 106 Tenn,, 513; Insurance Co. v. Whitaker, 112 Tenn., 151; Insurance Co., v. Fallow, 110 Tenn., 720; Knights of Pythias v. Cogbill, 99 Tenn., 28. Case cited and distinguished: Bennett v. Mass. Mutual Life'Ins. Co., 107 Tenn., 371. 2. INSURANCE. Insurer estopped from relying on false report of its physician. Where applicant truthfully answers the questions propounded to him by insurer’s physician and the physician inserts false statements in the blank furnished him and makes a false report to the insurer, and a policy is issued, the insurer is estopped from relying on such false report, to defeat action on the policy, since the physician’s knowledge of the truth will be imputed to the insurer. (Post, pp. 563-566.) 3. INSURANCE. Insurer estopped from relying on falsity of represen- . tation of bogus application. Where bogus application was sent in through negligence of the insurer’s agents without any fault of applicant, insurer is estop-ped from relying on falsity of statements in application, in action on policy; the negligence of the agents being imputable to the insurer, (Post, pp. 566-568.) Case cited and approved. Insurance Co. v. Whitaker, 112 Tenn., 161. 4. INSURANCE. Fraternal benefit society may waive contract provisions notwithstanding local camp officers axe precluded from so doing. A fraternal benefit society may waive the provisions of its contract with a member, notwithstanding by-laws and provisions of contract denying to a local camp or the officers thereof the power to waive provisions of contrarct. {Post, pp. 568, 569.) Cases cited and approved: Foresters v. Cunningham, 127 Tenn., 521; Simmons v. Sovereign Camp W. O. W., 136 Tenn., 233. 5. INSURANCE. Misrepresentations as to matters not contributing to insurer’s death held not to defeat action on certificate. Representation that applicant had not consulted a physician during the preceding five years held insufficient to defeat action- on benefit certificate though during such time he had summoned a doctor during an attack of asthma from which he promptly recovered, and though during such time he had procured a prescription from a doctor to reduce his flesh at a time when he was not sick, where death was caused by influenza, since representations were as to matters which in no way constituted either directly or indirectly to his death. {Post, pp. 569, 570.) Cases cited and approved. Rand v. Life Assurance Society, 97 Tenn., 291; Insurance Co. v. Lauderdale, 94 Tenn., 642; K. of P. v. Rosenfeld, 92 Tenn., 508; Insurance Co. v. Wilkinson, 13 Wall., 230, 231; Conn. Mut. Life Ins. Co. v. Union Trust Co., 112 U. S., 250; tCnights of Pythias v. Cogbill, 99 Tenn., 28; Rand v. Life Ins. Society, 97 Tenn., 291.
143 Tenn. 571Covell v. State (1920)
SCHOOLS AND SCHOOL DISTRICTS. Child of sixteen years and six months required to attend school. Public Acts 1913, chapter 9, as amended by Public Acts 1.919. chapter 143, providing that a parent, guardian, or other person having control of a child between the “ages of seven and sixteen years, inclusive,” shall cause such child to attend school, requires that a child of sixteen years and six months, be sent to school. Acts cited and construed: Acts 1913, eh. 9; Acts 1919, ch. 143; Acts 1891, ch. 132; Acts 1917, ch. 80, sec. 2.
143 Tenn. 575State ex rel. Milligan v. Jones (1920)
1. SCHOOLS AND SCHOOL DISTRICTS. Office of school director is an “office of trust” within Ouster Act. The office of school director, although not an office of profit, is an “office of trust” within the meaning of the Ouster Act, providing for. the removal of State, county, or municipal officers for willful negligence, etc., in view of Shannon’s Code, sections 1402, 1417, 1418, 1423, 1428, 1430. (Post, VV- 576-579.) Acts cited and construed: Acts 1915, ch. 11. Case cited and approved: State v. Buck, 138 Tetin., 112. Code cited and construed: Secs. 140\ 1417, 1418, 1423, 1428, 1430 (S.). ■¿. SCHOOLS AND SCHOOL DISTRICTS. Chancellor warranted in ousting school director. ■ Chancellor was warranted in pronouncing a judgment of ouster .against a director of school district, under Acts 1915, chapter 11, where there had been no meeting of the hoard of directors after director had been elected, and he had been signing the names of all the directors to school warrants and delivering them to the parties entitled, had not visited all of the schools as required hy law, had failed and neglected to take care of .the school property, and had hauled coal from the school grounds and had not returned the same until after he was suspended, notwithstanding the fact that he had no unlawful purpose in appropriating coal belonding .to the district, for the Ouster Act has no reference to the intent with which this misfeasance was committed. [Post, pp. 579, 580.) ¿. SCHOOLS AND SCHOOL DISTRICTS. Directors must act together as a hoard. The law requires the directors of a school district to act together as a board, and they can.not delegate to each other the performances of duty cast upon them by law. [Post, p. 580.)
143 Tenn. 581Nashville Railroad & Light Co. v. Overby (1920)
1. -APPEAL AND ERROR. Plaintiff’s version accepted by jury must be taken as true. Plaintiff’s account of the accident in suit, accepted by the jury, must be taken as the true version of the facts in the Supreme Court. (Post, p. 583.) Case cited and approved: Transit Co, v. Venable, 105 Tenn., 460. 2. CARRIERS. Employees riding free a passenger unless he has waived right. An employee of a carrier when off duty, riding on the carrier’s vehicle designated for the transportation of passenges by permission of those in charge, is to be treated as a passenger, though no fare is exacted from him, unless he is carried on a pass in accepting which he has expressly waived his right to claim compensation for injuries while being carried. (Post, pp. 584-585.) Cases cited and approved: Washburn v. Railroad, 40 Tenn., 638; Transit Co. v. Venable, 106 Tenn., 460; Marshall v. Railway & Light Co., 118 Tenn., 254; Railroad Co. v. Caviness, 127 Tenn., 671. 3. CARRIERS. Waiver of liability to employee for injuries conditioned on use of free pass. Where waiver of liability of street railway for injuries to its employee using a passbook for free passage was conditioned on the employee’s use of the pass, if the pass was not used the waiver was ineffective, whether the employee paid a cash fare or the conductor carried him without taking up a coupon from the passbook; mere possession of the passbook being immaterial to the employee’s right of recovery for injuries. {Post, pp. 585, 586.)
143 Tenn. 587Bell v. Hart (1920)
PROM SHELBY. Appeal from the Chancery Court of Sbelby County. —Hon. F. H. Heiskell, Chancellor.
143 Tenn. 591State v. McEwen (1920)
1. STATUTES. Construction making act invalid avoided, if possible. A statute will not be construed sd that the body of the act Is broader than the caption, making the act invalid, if such construction can be avoided. (.Post, pp. 593-594.) Acts cited and construed: Acts 1901, ch. 96; Acts 1905, ch. 447. Case cited and approved: Palmer v. Express Co., 129 Tenn., 116. Codes cited and construed: Sec. 7320a (T.-S.); Sec. 7320al (S.). 2. STATUTES. Construed in pari-materia. An act will be construed in pari materia with all other acts on the same subject. (Post, pp. 594-595.) 3. QOSTS. Sheriff’s expenses within the State in bringing defend-' ant from other State taxed against State. Under Thompson’s-Shannon’s Code, section 7320a (Shannon’s Ann. Code, section 7320al), and in view of sections 7606, 7611, and Shannon’s Ann. Code, section 7620, expenses incurred within the State by the sheriff’s office in bringing defendant, who had absconded to other State, back for trial under indictment for forgery, were properly taxed against the State, as part of costs, on verdict of not guilty. (Post,, pp. 594-595.) Codes cited and construed: Secs. 7606, 7611 (T.-S.); Sec. 7620 (S.).
143 Tenn. 596Jones v. Jones (1920)
WILLS. Instrument not revoked by testatrx’s mere intention, not followed by act of destruction, mutilation, cancellation. Where testatrix, fatally ill, requested her daughter to destroy her will, stating she did not want to die with it in existence, hut the daughter said she would rather not do so without first advising with her father, a lawyer and probate judge, and the father and husband told testatrix to put her mind at rest, that the will would never be set up, and it was put back in the box, testatrix dying some twelve hours later, there was no effectual revocation; the mere intention, unaccompanied by some act of destruction, mutilation, or cancellation, not being sufficient, and whatever authority testatrix gave her husband or daughter to destroy the will having ended at her death. Cases cited and approved: Ford v. Ford, 26 Tenn., 92; Smiley v. Gambill, 39 Tenn., 164.
143 Tenn. 602Milne v. Sanders (1920)
1. MASTER AND SERVANT. Rinding supported, by evidence in compensation case final. The trial court’s finding in a suit under the Workmen’s Compensation Act will not he reversed if there is any evidence to support it. (Post, p. 620.) Acts cited and construed: Acts 1919, eh. 123. 2. MASTER AND SERVANT. Intentional injury hy fellow servant not compensable! Generally, where an employee is intentionally injured by a fellow servant, there is no liability under the Workmen’s Compensation Act. (Post, p. 620.) 3. MASTER AND SERVANT. Employer in compensation case had burden of proving fire intentionally set. In a suit under the Workmen’s Compensation Act for death of an employee in an oil room fire .claimed by the employer to have been intentionally started by a fellow servant to burn the employee, the plaintiffs, by proving that the fire suddenly appeared -when a lighted match was thrown into the room, shifted the burden to the employer to prove that the fire was intentionally started. (Post, p. 620.) 4. MASTER AND SERVANT, Evidence in compensation case held not to prove fire was intentionally set. In a suit under the Workmen’s Compensation Act for death of an employee in an oil room fire, evidence held to sustain finding that the fire was accidental and not intentionally set by a fellow servant who threw a lighted match into the room. (Post, pp. 620-622.) 5. MASTER AND SERVANT. Employee held acting “in course of employment. ’ ’ Where one of two brothers who were dipping chairs in a tank containing liquid wax was directed by the foreman to fill the tank with wax from the oil room, the death of the other brother as the result of an accident while assisting in filling the tank, without haying been expressly ordered to so do, held to have arisen “out of and in the course of his employment.” (Post, pp. 622-626.) Cases cited and approved: McCormick v. A. T. Kelliher Lumber Co., 18 B. C. 57; McQuibban v. Menzies, 37 Sc. L. .Rep., 526; Tobin v. Hearn (1910), 2 Ir„ 639; Case cited and distinguished: Spooner v. Detroit Saturday Night Co., 187 Mich., 125; Bischolf v. American Car, etc., Co., 190 Mich., 234. 6. EVIDENCE. Dying declarations not admissible in civil' action. In proceedings under the Workmen’s Compensation Act for the death of an employee, dying declarations of the employee as to the cause of the fire which caused his death held not admissible; dying declarations not being admissible in a civil action. (Post, pp. 626, 627.) 7. EVIDENCE. Transcript of record in criminal case held inadmissible against plaintiffs not parties thereto. In proceedings under the Workmen’s Compensation Act for death of an employee in a fire, in which the employer claimed that the fire had been intentionally set by a fellow employee, the transcript of the record in a criminal case in which such fellow employee had been convicted of murder held properly excluded; the plaintiffs not having been parties to the criminal case, and having had no opportunity to cross-examine witnesses in such case, or to introduce evidence to rebut that offered by the State. (Post, p. 627.) 8. MASTER AND SERVANT. Compensation decree to father and stepmother jointly held harmless. In a suit under the Workmen’s Compensation Act (Acts 1919, chapter 123), by father and stepmother for death of son, a decree for the plaintiffs jointly, though the stepmother was not a dependent, was not prejudicial to employer,', where the father, if suit had been instituted in his name alone, would have been entitled to the full amount of the award under section 30. ' (Post, pp. 627, 628.)
143 Tenn. 628Williamson County v. Franklin & Spring Hill Turnpike C. (1920)
1. EMINENT DOMAIN. Privileges secured, by corporate charter maybe condemned; “property.” Although a corporate charter is a contract and protected by the federal Constitution, yet the rights and privileges secured by it are property, and, like all dther property, are subject to the eminent domain power of the State. (Post, p. 635.) Cases cited and approved: West'River Bridge Co. v. Dix, 6 How., 507; Red River Bridge Co. v. Clarksville, 33 Tenn., 176. 2. STATUTES. Provision for revenue for use in road building, etc., held included in title of act. As the caption of Pub. Acts T917, chapter 74, after providing revenue for use in road building in Tennessee in connection with the Secretary of Agriculture and in conformity to Act Cong. July 11, 1916 (U. S. Comp. St. sections 7477a-7477i), expressly declares that it was to provide means and instrumentalities for carrying out the work of road building as contemplated by the act of Congress, such act-is not open to attack on the ground that it violates Constitution, article 2, section 17, as embracing a subject not expressed in its title ,on the theory that the act is by its caption a revenue act, while purporting in 'its body to confer powers of eminent domain; the general purpose of the act being to provide means to co-operate with the federal government in road building. (Post, pp. 635, 636.) Acts cited and construed: Acts 1917,- ch. 74. Case cited and approved: Coal Iron & Railroad Co. v. Plume & Transportation Co., 128 Tenn., 277. Constitution cited and construed: Art.. 2, sec. 17. Statutes cited and construed: Secs. 7477a-7477i (U. S.). 3. HIGHWAYS. Act providing means to co-operate with federal government in highway building held not repealed. Pub. Acts 1917, chapter 74„ providing for revenue and means to cooperate with the federal government in highway building, was not repealed by Pub. Acts 1919, chapter 149, the earlier act laying an ad valorem tax to raise funds for highway building, while the latter lays a privilege or license tax on automobiles, and further . declares, in section 25, that nothing shall be construed to conflict with Pub. Acts 1917, chapter 74. (Post, pp. 636-638.) Acts cited and construed: Acts 1917, ch. 74; Acts 1919, ch. 149. Case cited and approved: State Highway Department v. Mitchell’s Heirs, 142 Tenn., 58; Moreau P. Estes v. Romans Hailty, Clerk', Davidson Law, 228 S. W., -. 4. EMINENT DOMAIN. Power of county must be determined from consideration of acts in pari materia. .As the Federal Aid A,ct (Pub. Acts 1917, chapter 74), providing that the state highway department in its own name or in the name of county may condemn all necessary rights of way, was supplemented by Pub, Acts 1917, chapter 114, passed in the same session, declaring that the county court might condemn any turnpikes, the two acts, which are i» pari materia, must be construed together in determining the power of the county to condemn a turnpike for a link'in the State and national highway. (Post, pp. 638-640.) Cases cited and approved: Railroad v. Memphis, 126 Tenn.,, 267; State Highway Dept. v. Mitchell’s Heirs, 142 Tenn., 58. Code cited and construed: "Sec. 1844 (T.-S.).. 5. EMINENT DOMAIN. If provision is made for compensation im- ' partially assessed, constitutional guaranty is met. If provision is made by condemnation laws whereby a party can .obtain compensation, and an impartial tribunal is provided for assessing, the provisions of the Constitution forbidding the taking of property without compensation are sufficiently met. {Post, pp. 640-644.) 6. EMINENT DOMAIN. Statute held to make sufficient provision for condemnation of franchise of turnpike company. ' Pub. Acts 1917, chapter 74, known as the Federal Aid Act, and the supplemental act (Pub. Acts 1917, chapter 114), providing for condemnation- of turnpikes, sufficiently provide for the condemnation of the franchises and incorporeal rights of turnpike companies, although the procedure is regulated by Thompson-Shannon Code, section 1844, et seq., which make no special provision for awarding of damages for incorporeal property, for an impartial tribunal is provided for assessing the compensation, thoiugh the elements of compensation are specified; the determination of the value of such franchises, etc., being -questions for the court disposing of the condemnation1 case. {Post, pp. 640-644.) Acts cited and construed: Acts 1917, eh. 114. Case cited and approved: Railroad v. Memphis, 126 Tenn., 267. 7. EMINENT DOMAIN. Property dedicated to a public use cannot be taken unless power is conferred expressly or by necessary implication. Where property has been dedicated to a public use, it cannot be taken for another and inconsistent use unless the power so to take is conferred expressly or by necessary implication. {Post, p. 644.) 8. EMINENT DOMAIN. Property of turnpike company held subject to condemnation for state and national highway. ■ Although property dedicated to a public use cannot be taken for another and inconsistent use unless the power is conferred expressly or by necessary implication, and notwithstanding a turnpike company charging tolls as a gwasi-public corporation, the physical property as well as the franchises of such turnpike company may be condemned under Pub. Acts 1917r chapters 74 and 114, the first’providing means for acceptance of federal aid for highways, and the latter expressly authorizing the condemnation of turnpikes. {Post, p. 644-.) Case cited and approved: Railroad v. Mayor & Ajdermen of Union City, 137 Tenn., 491. 9.EMINENT DOMAIN. Sufficient provision Reid made for compensation for property of turnpike company. Tlie Federal Aid Act, Pub. Acts 1917, chapter 74, providing, in section 5, that all judgments and tother expenses incurred in condemnation proceedings shall he paid out of the general fund of the county, and Pub. Acts 1919, chapter 149,,.. section 9, pledging the general funds of the county as compensation in condemnation suits for highway purposes, make adequate provision for compensation under Constitution, article 1, section 21, and where the property of a turnpike was sought to be condemned, the project cannot be defeated on the ground that no provision was made for • ascertaining and paying the compensation provided for before entry on the property. (Post, pp. 645, 646.) Cases cited and approved: State Highway Dept. v. Mitchell’s Heirs, 142 Tenn., 58; Railroad v. Memphis, 126 Tenn., 267; Monongahela Nav. Co. v. U. S., 148 U. S. 312. Constitution cited and construed: Art. 1, sec. 21. 10. EMINENT DOMAIN. Turnpike company cannot defeat condemnation of its property because it was not specifically named in statute. As Pub. Acts 1917, chapter 74, supplemented by chapter 114, authorizes the condemnation of turnpikes as links in the State and national highway, a turnpike company whose property a county sought to condemn cannot defeat condemnation on the ground that it was not specifically and eo nomine referred to in the acts, for, as the acts provide for condemnation of property theretofore devoted to a public use, they did not have to specify such property, but might delegate to a public agency as a county the right to select. (Post, pp. 646, 647.) 11. EMINENT DOMAIN. Petition held to show necessity for taking turnpike as link in a state and national highway. As Pub. Acts 1917, chapter 74, supplemented by chapter 114, authorized county courts, etc., to condemn turnpikes for State and national highway, petition in a suit by a county that the State highway department had selected a turnpike as a link in a State and national highway held sufficient to show the necessity for condemnation. (Post, pp. 647, 648.) Case cited and distinguished: Bragg v. Weaver, 251 U. S„ 57. 12. EMINENT DOMAIN. Determination of necessity of taking is not for the courts. In the absence of a clear and palpable abuse of power, the question of the propriety of condemnation of property for public purpose is not for the courts, but for the legislature. (Post> pp. 648, 649.)
143 Tenn. 649Carter County v. Oliver-Hill Const. Co. (1920)
1. JUDGMENT. Decision in bankruptcy not adjudication as to liability-»! surety of bankrupt, expressly withheld from determination. Where the bond of a road contractor not only guaranteed faithful performance, but guaranteed full payment to laborers and ma-terialmen, as required by Acts 1899, chapter 182, and on the contractor being declared a bankrupt, the surety filed a petition in bankruptcy proceedings, praying that the balance due on the contract should be collected by the trustee in bankruptcy and applied in payment of claims for labor and material furnished before general creditors should be permitted to participate, the determination in the bankruptcy proceeding was not conclusive against» the rights of laborers and materialmen to recover against the surety, where it appeared that only those claims, payment of which was sought by the surety, were paid; it expressly appearing that the bankruptcy court did not undertake to adjudicate what claims should be paid. (Post, pp. 654-656.) 2. HIGHWAYS. Surety on contractor’s bond liable for food furnished animals and workmen. ' Where road, contractor’s t)ond extended its indemnity to laborers and materialmen in accordance with Acts 1899, chapter 182, the surety is liable to persons furnishing food for laborers and animals engaged in performance of the contract; but it is not liable for goods furnished the contractor for its commissary, which were sold to 'outsiders as well as employees. {Post, pp. 657-663..) Acts cited and construed: Acts 1899, ch. 182. Cases cited and approved: Title Guar. & T. Co. v. Crane Co., 219 U. S„ 24; TT. S. Fid. & G. Co. v. U. S., 231 U. S., 237; III. Surety Co. v. John Davis Co., 244 TJ. S., 376; Keopee Consol. Coke Co. v. V. Taylor, 234 U. S„ 224. Cases cited and distinguished: Pittsburg Coal Co. v. So. Asphalt & 'Const. Co., 138 Tenn., 154; Brogan v. Nat. Surety Co., 246 U. S., 261. 3. HIGHWAYS. Surety not liable to one who cashed orders for contractor. Where the bond of a road contractor guaranteed .payment to laborers and materialmen in accordance with Acts 1899, chapter 182, a storekeeper who cashed in merchandise pay checks of employees of the contractor under an arrangement that the contractor would make settlement after thirty days is not entitled to recover on the bond; there appearing to have been no assignment of the laborers’ claims to the storekeeper, bjit a mere credit arrangement with the. contractor. {Post, pp. 663-667.) Case cited and distinguished: United States v. Rundle, 107 Fed., 227. 4. COSTS. Trial court directed to consider, in taxing costa below, fact that costs of appeal were taxed against surety, though he secured reversal in part. Where contractor’s surety on appeal from an adverse judgment secured reversal as to some claims, but it would require much labor to apportion costs on appeal, and all costs of appeal were assessed against surety, trial court will be directed-to take that fact into consideration. {Post, p. 66.7.)
143 Tenn. 667Cates v. Reynolds (1920)
1. PUBLIC LANDS. Grant from State not voided by conflict in calls of survey, etc. The mere fact that there is a conflict in the calls' of a survey, or that the surveyor was mistaken with respect to the location of the objects called for, does not void grant from the State if by any reasonable interpretation of the grant its boundaries can be ascertained and determined with reasonable certainty. (Post, p. 673.) 2. PUBLIC LANDS. Intention of parties controls in construing grant. The primary and fundamental rule in the construction of a grant from the State, to which all others relate and must yield, is that the intention of the parties gathered- from the whole instrument, taken in connection with surrounding circumstances, must control. (Post, p. 673.) Casé cited and approved: Pritchard v. Rebori, 135 Tenn., 330. 3. BOUNDARIES. In harmonizing conflicting calls in survey, “locative calls” must control “directory calls.” In harmonizing conflicting calls in a deed or survey of public lands, courts will ascertain which calls are locative and which are merely directory, and conform the lines to the locative calls; “directory calls” being those which merely direct the neighborhood where the different calls may be found, whereas “locative calls” are those which serve to fix boundaries. (Post, p., 674'.) Cases cited and approved: Roberts v. Cunningham, 8 Tenn., 68; Disney v. Coal Co., 79 Tenn., 607. 4. BOUNDARIES. Locative calls of survey referring to natural or fixed objects control over those for course or distance. In a case of conflict between locative calls in a survey of public lands, those referring to natural or fixed objects prevail over those for course and distance unless the result is absurd and one manifestly not intended. (Post, pp. 674-680.) Case cited and distinguished: Roberts v. Cunningham, 8 Tenn., 67, 68. 5. BOUNDARIES. Surveyor’s plat may be referred to to remove doubt as to boundaries. If a doubt with regard to boundaries arises from the calls of a grant of public lands by the State, the surveyor’s plat and certificate of his survey may be referred to to remove it, the plat having, not a directory, but a locative operation in determining its precise limits, though it may result in disregarding a fixed natural or artificial object called for in the grant. (Post, pp. 680, 681.) Cases cited and approved: Dallum v. Breckenridge, 3 Tenn., 152; Patton v. Carothers, 3 Tenn., 148; Childres v. 1-Iolland, 4 Tenn., 274; Roberts v. Cunningham, 8 Tenn., 73; Disney v. Coal Creek M. & M. Co., 79 Tenn., 607; Bell v. Hickman, 25 Tenn., 398; Tate v. Gray, 31 Tenn., 74.
143 Tenn. 681Title Guaranty & Trust Co. v. Bushnell (1920)
1. MORTGAGES. Bill Reid to plead grantee’s assumption of mortgage debt. In action on notes secured by mortgage, bill pleading deed reciting that tbe property was sold to grantee for a specified price, of wbicb a specified amount was paid by tbe “assumption by tbe grantee herein of tbe first lien upon said real estate,” and alleging that-s*ucb grantee “assumed and agreed to pay” tbe mortgage debt, held to plead that tbe grantee assumed. tbe payment of tbe mortgage debt, and not merely that be purchased tbe land subject to the mortgage lien without assumption of'payment. (Post, pp. 688, 689.) 2. PLEADING. Allegations of bill taken as true on demurrer. Allegations of bill must be taken as true on demurrer. (Post, p. 689.) 3. PLEADING. Reasonable presumptions indulged in favor of bill on demurrer. - Every reasonable presumption must be indulged in favor of the bill when opposed by a demurrer. (Post, p. 689.) Cases cited and approved: Alexander v. Elkins, 132 Tenn., 663; Adams v. Chattanooga Co., 128 Tenn., 505; Green v. Knoxville Banking Co., T33 Tenn., 609. 4. CONTRACTS. Beneficiary of contract, though not party thereto, may sue in own name. Tbe beneficiary, though not a party to the contract, may maintain an action directly in his own name against the promisor, where such promise between the promisor and promisee is made upon sufficient consideration for the benefit of the third party. (Post, pp. 690, 693.) Cases cited and approved. Ruohs v. Insurance Co., Ill Tenn., 429; County v. Railroad, 82 Tenn., 525; McCarty v. Blevins, 13 Tenn., 196; Moore & Miller v. Stovall, 70 Tenn., 543; O’Conner v. O’Conner, 88 Tenn., 76; King v. Whitely, 10 Paige (N. Y.), 465; Trotter v. Hughes, 12 (NI. Y., 74; Thayer v. Marsh, 75 N. Y„ 340; Carter v. Holahan, 92 N. Y„ 499; Wilbur v. Warren, 104 N. Y„ 192; Mount v. Van Ness, 33 N. J. Eq., 262; Biddle v. Pugh, 59 N. J. Eq., 104; Ward v. DeOca, 120 Cal., 102; Brown v. Stillman, 43 Minn., 126; Clement \ v. Willett, 105 Minn., 267; Morris v. Mix, 4 Kan. App., 654; New England Trust Co. v. Nash, 5 Kan. App., 739; Young Men’s Christ-ial Association v. Croft, 34 Or., 106; Crone ,v. Stinde, 156 Mo., 266; Birke v. Abbott, 103 Ind., 1'; Hare V. Murphy, ,45 !Nieb.„ 809; , Cobb v. Pishei; 15 Colo. App., 384; Bank v. Mesarvey, 101 Iowa, 285; Merriman v. Moore, 90 Pa., 78; Enos v. Sanger, 96 Wis., 150; Dean v. Walker, 107 Ill., 540'; McDonald v. Finsbth, 32 N. D., 400; McKay v. Ward, 20 Utah, 149; Little v. Thoman, 4 Ohio Dec. 513-. '5. MORTGAGES. Grantee liable on agreement to assume mortgage debt, though grantor not personally liable. The grantee is bound by agreement to assume payment of mortgage debt on property conveyed in lieu of the purchase price, though grantor was not personally liable; the transfer of the land to grantee and the fact that the mortgage debt was deducted from purchase price being sufficient consideration for the promise to assume payment of debt. (Post, p. 693.)
143 Tenn. 693Eager v. McCoy (1920)
1. WILLS. Testatrix held-to intend devise of rents and profits for life of survivor of three sons. Under a will directing that at the end of twenty-five years, or at the death of the last of testatrix’s three sons, all of the property devised jn trust should he sold to the best advantage and the proceeds equally divided among grandchildren, held that testatrix intended to devise to her sons the rents and profits of the property therein mentioned during the terms of their natural lives and of the natural life of the survivor of such, three sons. (Post, pp. 700, 701.) 2. WILLS. Presumption in favor of legatee or devisee. In construing a will, the presumption is always in favor of the legatee or devisee. (Post, pp. 701, 702.) 3. IWILLS. Life estates not limited by subsequent ambiguous language. Where life estates are conferred by clear and unambiguous language, doubtful language in another portion of the will will not be allowed to cut down such estates to estates for years. (Post, pp. 701, 702.) Case cited and distinguished: Meachem v. Graham, 98 Tenn., 190. 4. WILLS. Grandchildren living at testator’s death held' entitled to rents and profits for minimum of twenty-five years. A will directing executor to divide certain rents equally among grandchildren living at the time, of testatrix’s death, the renting and division of rents to continue for a period of twenty-five years after her death or until the last of her three sons died, held to devise such rents and profits to the grandchildren living at testatrix’s death for twenty-five years, or until the death of the last son if he should survive the twenty-five year period. (Post, p. 702, 703.) 5. PERPETUITIES. Interest beginning within limits of rule against perpetuities. Where interests of grandchildren devised are subject to contin.gencies, but all these events must happen and the various classes be determined within lives in being at the death of testatrix, such interests begin within the limits of the rule against per-petuities. (Post, p. 703.) . 6. PERPETUITIES. Executory limitations must vest interest within what time. Executory limitations in wills, whether of real or personal estate, in order to be valid, must vest in interest if at all within a life or lives in being and twenty-one years and a fraction thereafter for the term of gestation in cases of posthumous birth. (Post, p. 703.) Cases cited and approved: Franklin'v. Armfield, 34 Tenn., 306; 1 Bramlet v. Bates, 33 Tenn., 554; Booker v. Booker, 24 Tenn., 505; Davis v. Williams, 85 Tenn., 646; Brown v. Brown, 86 Tenn., 277. 7. PERPETUITIES. Must look to common law for proper meaning of term in Constitution. Although Constitution, article 1, section 22, declares that per-petuities are contrary to the genius of a free State and shall not be allowed, it does not define perpetuities, and the courts must look to the common law for the proper meaning of the term. (Post, p. 704.) Constitution cited and construed. Art. 1, sec. 22. 8. PERPETUITIES. Estate need not only begin within limits regardless of end. It is well settled at common law that the rule against perpetuities is not offended if an estate begins within the limits of the rule, regardless of the time at which such estate may end, and an interest is not obnoxious to the rule if it begins within lives in being and twenty-one years, although it may end beyond them. (Post, p. 704.) 9,PERPETUITIES. Rule against applies to trust estates. The rule against perpetuities applies with equal force to trust estates, hut a trust estate, beginning within the limits of the rule, is good, notwithstanding its prolongation. (Post, pp. 704, 705.) 10. PERPETUITIES. Invalidity of provision for remoteness held not to affect rights of remaindermen. Under a clause of a will, "I direct that at the end of said period of twenty-five years or at the death of the last of my said three sons as the case may be all of my said property shall be sold to the best advantage, publicly or privately in the discretion of my executor . '--and the proceeds shall be equally divided among my grandchildren as a class who are living at the time of the death of the last survivor of said three sons,” the power of sale or trust for sale conferred upon the executor, to be exercised not less than twenty-five years after the testator’s death, is void for remoteness, but the class of grandchildren, being clearly designated to have the entire property, cannot be deprived of the estate merely because the machinery which the testatrix provided for a division of' the property among them turns' out to be ineffective, and the grandchildren may claim the estate and waive the sale altogether after death of the last son. (Post, pp. 705, 706.) 11. PERPETUITIES. Testator cannot confer power to vest title beyond limits of rule against perpetuities. A testator cannot vest title to property at a period beyond the limits of the rule against perpetuities, nor can he confer upon another power to vest title at such a time, (Post, p. 706.). . Cases cited and approved: Chambers v. Preston, 13.7 Tenn., 324; - Wayne v. Pouts, 108 Tenn., 145; Goodjer v. Edmunds, 3 Ch., 455. Cases cited, and distinguished: Goodier v. Johnson, 18 Ch. D„ 441; In Re Daveron, 3 Ch., 421; In Re Appleby, 1 Ch., 565; 12. WILLS. Clause as to rights of grandchildren on death construed to apply only to .grandchildren living at death of testatrix. A clause in a will, “I further direct that while said rent period is running that if any one or more of my grandchildren shall die, the remaining grandchildren shall receive all of said Tents and profits,” held to apply only to grandchildren living at testatrix’s death, and not those who came into being after her death. {Post, pp. 710, 711.) Orr'Petition to Reheats. 13. WILLS. Law favors vesting of estates. The law favors the vesting of estates created by will. {Post, pp. 711, 712.)