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Tenn.)

LOWRY V. SOUTHERN RY. CO.

125

the only method available to him of com- "Does any reason suggest itself why it should plying with the requirement that the in- be necessary to a forfeiture of nonpayment of dorsement of the forfeiture should be made on the account, and why a like method should

interest that the commissioner should enter it upon the obligation, and, since due entry not be adopted in case of a forfeiture for nonof the forfeiture was made upon the pur- occupancy? None presents itself to our minds. chaser's account, the entry upon the account counts with the purchaser are kept in the Land

On the contrary, it would seem, since the acand such indorsement upon the file wrapper Office, and since they will necessarily show constituted a substantial compliance with the fact in case the interest is not paid, there the law. In the latter case, it was held that is less reason for declaring the forfeiture in

that case, than in case of nonoccupancy, where the entry of the forfeiture upon the pur- there is no public record to show the fact." chaser's account and an indorsement of for

A usage in the Land Office, long pursued, feiture upon the file wrapper, which then of declaring forfeitures for nonpayment of contained the purchaser's obligation, was interest by simply making the indorsement likewise a substantial compliance with the on the purchaser's obligation, to which our requirements of the statute. In neither of attention has been directed by the respondthese decisions is it intimated that the ob- ents, would be persuasive if the construction servance of merely one of the requirements of the statute were doubtful. But we regard amounts to a substantial compliance with its provisions as plain. both of them. As noted, in both cases due entry of the forfeiture was made on the purchaser's account. Had this alone been deemed a substantial observance of both require

LOWRY V. SOUTHERN RY. CO. ments, there would have been no need of dis- (Supreme Court of Tennessee. Oct. 9, 1915.) cussing or giving any effect to the indorse- MASTER AND SERVANT 258 ACTION FOR ment upon the file wrapper. Instead, the

INJURY-SUFFICIENCY OF DECLARATION.

In an action for the death of plaintiff's incourt gave substantial effect to that indorse- testate while in the defendant's employ as a ment, holding, as stated, that such indorse- yard inspector, the declaration averred that it ment, under the facts of the cases, together was customary for employés in defendant's with the entry upon the account, substantial- yard to go under cars on the track during shows ly met the requirements of the statute. In and state law and of the Interstate Commerce Brightman v. Comanche County decision of Commission, adopted by defendant, that before the question, whether entry of the forfeiture a standing car would be moved in the yard no

tice would be given; that defendant and deon the account alone would be sufficient ceased were engaged in interstate commerce; where, as was the condition in that case, that while he was inspecting cars in the yard the obligation was not in the Land Office, was deceased went under the car during

a shower;

and that defendant, in violation of the rule, expressly pretermitted.

switched cars against the one under which inAdams v. Terrell, 101 Tex, 331, 107 S. W. testate was, and killed him. Held, that the 537, involved a forfeiture by the commis- dismissal of the action for failure to comply sioner for failure to reside upon the land as specific, and to designate the name of the vice

with a motion to make the declaration more required by the law. The question presented principals, etc., alleged to have been negligent, was whether such failure had the effect, in and what rule had been violated, was erroneous, itself, of constituting a forfeiture, or wheth- as the declaration set out with particularity

and in a substantial way the cause of action er, upon such failure, a declaration of the on which plaintiff sued, and as such matters forfeiture by the commissioner was neces- were more within the knowledge of the defendsary. The act of 1895 provided that, in the ant. event of the failure by the purchaser to re- servant, Cent. Dig. SS 816-836; Dec. Dig. Om

[Ed. Note.-For other cases, see Master and side upon and improve the land as required

258.] by law, he should forfeit it to the state "in

Appeal from Circuit Court, Hamilton the same manner as for the nonpayment of interest.” The act of 1901 provided that, in County; Nathan L. Bachman, Judge. the event of such failure, the purchaser

Action by Mrs. Eliza Lowry, administrashould forfeit the land to the state “to the trix, against the Southern Railway Compasame extent as for nonpayment of interest.” ny. From a judgment of the Court of Civil The court construed these provisions as re- Appeals, reversing and remanding a judgquiring, for the accrual of a forfeiture, on ment for defendant, dismissing the case, deaccount of nonoccupancy, the same character

fendant appeals. Affirmed. of declaration of the forfeiture as for the Cooke, Swaney & Hope, of Chattanooga, nonpayment of interest; that is, as found in for appellant. G. W. Chamlee, of Chattanoothe provision of article 5423, R. S. 1911, quot- ga, for appellee. ed in this opinion. And in applying that provision it is evident from the opinion that ANCHER, J. Plaintiff's intestate, Chas. observance of the requirement that the en- J. Lowry, was killed in the yards of the detry be made upon the account was regarded fendant railway company on or about the as essential in order for a forfeiture to ac- 26th day of June, 1914, at Citico, near Chatcrue for the nonpayment of interest. This tanooga, while engaged as a yard inspector, language was made use of:

track hand, and general repair servant for the defendant. Just previous to the accident Defendant moved the court to require the he was inspecting a car, to ascertain if it plaintiff to make her declaration more speneeded attention of any kind, when a rain cific, and to designate the names of the came up.

alleged vice principals, foremen, or fellow It is averred in the declaration that it was servants who are alleged to have been carecustomary for the men working in the yards less, negligent, and unmindful of their duof the company to go under cars left standing ties; and, second, that plaintiff be required on the tracks during a shower; that in to make her declaration more specific, so as accordance with this custom Lowry went to allege and set out what particular rules under a car, in order to keep out of the rain. and regulations for the prevention of acciIt is further averred that it was a custom dents were violated by said vice principals, of the railroad that, in case of cars coming foremen, and fellow servants of the deceased. into the yards, signals would be set up or Whereupon the court ordered that the plainorders given that the cars should be inspect- tiff make her declaration more specific upon ed while on the tracks before they were these points, to which action she excepted, moved; that there was a rule, regulation, or for the reason that the information required system, provided by law, ordinances, and of her by this order is peculiarly within the rules, that in case a car was rolled into the knowledge and custody of the defendant ityard and left standing, before that car self. Plaintiff thereupon filed an amended would be moved, that notice would be given declaration, but failed to comply with the by the blowing of the whistle of the engine, order made upon her by the court, wherethe ringing of a bell, and giving general no- upon the defendant moved to dismiss the tice to the crew in and about the car that the case, because of plaintiff's failure to so comsame was going to be moved; that this rule ply, and the court granted the motion, and was required by the federal and state laws, dismissed the suit, to which action the plainand by the Interstate Commerce Commission, tiff excepted, and appealed to the Court of and was covered by a rule, regulation, or Civil Appeals. That court reversed the acsystem adopted by the Southern Railway; tion of the trial judge and remanded the that the deceased and the defendant railway case to the court below for further proceedcompany were at the time engaged in inter- ings. state commerce, or in commerce being trans- We think the trial judge was in error in ported from points outside of Tennessee, into granting the motion of the railway company Tennessee, through Chattanooga and the to require plaintiff to specifically point out switchyards, where the deceased was work, the names of the servants who neglected ing, and forward to other points outside of their duty toward the deceased, and to point and beyond the state of Tennessee, and it out specifically the rules and regulations was averred that the said Chas. J. Lowry, which were required of it. The declaration while so actively engaged in said duties, was undoubtedly sufficient, in that it set out was ordered to make certain repairs on a with particularity and in a substantial way switch in the yards, and to inspect certain the cause of action for which plaintiff sued. box or freight cars, which necessitated his In the case of May V. Railroad, 129 Tenn. getting under the cars; that a certain train 521, 167 S. W. 477, L. R. A. 1915A, 781, the of the defendant company had come into the present Chief Justice of this court pointed yards with broken chains, and a part of the out proper rules of practice with respect to apparatus necessary to keep the air brakes this question and reviewed former cases in in good order was in defective condition; this state upon the subject. The court rethat while performing this repair wurk he viewed somewhat at length the authorities stooped, with the view of getting under the from other jurisdictions upon this particular car to make an inspection, and immediately question. preceding this act it began to rain, and that We will not undertake to review the subwhile it was so raining there was no chance ject here. It is sufficient to say that this for employés to do very much in the way of court recognizes the right in a proper case work; that the defendant company violated and upon the proper showing of a defendant and negligently disregarded each and all of to require the plaintiff to state with greater the duties toward the deceased above enu- particularity as to time or other material merated, in that it failed to blow a whis- averment, so as to give necessary notice to tle or give other warning that it was about the defendant; and it is true that when so to switch an engine to the train and move required plaintiff's suit will be dismissed if it, and that without notice, and without he fails to comply, unless he shows that he warning of any kind or character, the de- is unable to state the date or fix the particiendant railway company unlawfully, negli ular facts more definitely. gently, carelessly, and wrongfully moved an Having in mind the rules of practice as engine up to and against its train where the stated in May v. Railroad, supra, we are of deceased was then engaged in such repair opinion that plaintiff should not have been work, and caused its servants to move the required to comply with defendant's motion. train, and the wheels of such car or train ran This moti'on was not supported by anything, over the body of Chas. J. Lowry, inflicting so far as the record discloses, showing any Tenn.)

BURROUGHS ADDING MACH. CO. V. FRYAR

127

the cause of action. The declaration on its "That married women be, and are, hereby face is full enough. The defendant does not fully emancipated from all disability on account show that it cannot prepare its defense with abilities of married women and its effect on the -law

. out a more particular statement as to names rights of property of the wife, is totally abroof the persons who moved the train and the gated, and marriage shall not impose any disarules required of it, which it had adopted. bility or incapacity on a woman as to the ownThe presumption is that the railroad would any sort, or as to her capacity to make contracts

ership, acquisition, or disposition of property of know more about these matters than plain and do all acts in reference to property which tiff would. If persons bringing suits against she could lawfully do if she were not married ; railroad companies were required to comply be married, shall have the same capacity to ac

but every woman now married, or hereafter to with motions of this kind, in every instance, quire, hold, manage, control, use, enjoy, and they would often fail in meritorious cases, dispose of, all property, real and personal, in because of their inability to point out by possession, and to make any contract in refername the agents or servants whose negli- to sue and be sued with all the rights and in

ence to it, and to bind herself personally, and gence produced the injury, or to specifically cidents thereof, as if she were not married.” state the exact wording of rules and regula- It is contended that this act is so broad in tions that were violated.

its provisions, and the emancipation is so The declaration does state that the em complete, as to merge all rights of action ployés failed to sound a whistle, ring a bell, arising from injuries to the wife into one or pursue any other method of warning to right of action, vested in her. the deceased that the cars were about to be

The act in its caption is recited broadly moved. It states with sufficient certainty to be: that there were rules requiring this. We

"An act to remove disabilities of coverture think this was sufficient on the point in ques- from married women, and to repeal all acts tion to give the defendant reasonable notice and parts of acts in conflict with the provisions

of this act.” of the grounds upon which the action was predicated.

At common law the wife was termed a The judgment of the Court of Civil Ap- feme"covert," and her condition during peals, in reversing the case and remanding it marriage was called her “coverture.” Blackfor further proceedings in the court below, stone recognized two features of this coveris affirmed.

ture. One feature embraced personal rights; the other the rights of property. 1 Black

stone, Com. 442. CITY OF CHATTANOOGA v. CARTER et ux. husband and wife depend almost all the legal

"Upon this principle of a union of person in (Supreme Court of Tennessee. Oct. 2, 1915.) rights, duties and disabilities that either of

them acquire by the marriage.” Id. HUSBAND AND WIFE Om 209—RIGHTS OF HUSBAND-SERVICES OF WIFE.

The act in question does not affect the leThe Married Women's Act (Laws 1913, c. gal rights and duties of that relationship 26), which relieved married women from all dis- further than to emancipate the wife from ability on account of coverture, did not affect her disabilities that attached to the relationa wife's marital duties, and a husband, as at common law, may recover for loss of the serv

ship. Embraced in these disabilities are ices of his wife by reason of personal injuries her incapacity to act for herself with respect sustained by her.

to her property, to make contracts, to bind [Ed. Note. For other cases, see Husband and herself personally, to sue and be sued. In Wife, Cent. Dig. 88 766–772, 968, 973; Dec. fact, the wife was placed on that footing Dig. Om 209.]

enjoyed by the husband as to the right to Certiorari to Court of Civil Appeals. hold, manage, control, use, enjoy, and dis

Action by C. H. Carter and wife against, pose of all property; to make any contract the City of Chattanooga. From a judgmeni in reference to it and to sue and be sued. for plaintiffs, defendant appealed, and, it be- The act does not deprive either the husing affirmed by the Court of Civil Appeals, band or wife of the conjugal relationship, defendant brings certiorari. Affirmed. with its duties and rights.

It results that there was no error in the W. J. Counts, Ford & Yarnell, all of Chat

action of the Court of Civil Appeals in sustanooga, for plaintiffs. Coleman & Frierson,

taining the judgment in favor of the husof Chattanooga, for defendant.

band, and it is affirmed. FANCHER, J. A recovery was had by C. H. Carter, the husband, for the loss of services of his wife by reason of personal inju- BURROUGHS ADDING MACH. CO. y. ries sustained by her. The judgment of the

FRYAR. circuit court was sustained by the Court of (Supreme Court of Tennessee. Oct. 5, 1915.) Civil Appeals. It is assigned as error that NEGLIGENCE Omw32–OWNERS OF BUILDINGS, no recovery can be had by the husband in DUTIES TO LICENSEE-POLICE OFFICER. such cases since the Married Women's Act

A police officer, observing a door of the

defendant company to be open, while the room of 1913, chapter 26, which provides as fol- was unoccupied, went into the store, and when lows:

coming out closed the door with such force as to cause a screen over the transom to fall, injur- | nance. Cooley on Torts (3d Ed.) page 648; ing his foot. Held, that his acts, though in the Lunt v. Post Printing & Pub. Co., 48 Colo. performance of his duty, were those of a licensee, and that he could not recover for the 316, 110 Pac. 203, 30 L. R. A. (N. S.) 60, 21 injury, since a property owner is liable to a Ann. Cas. 492; Gibson v. Leonard, 143 Ill. licensee only for willful injury.

182, 32 N. E. 182, 17 L. R. A. 588, 36 Am. [Ed. Note.-For other cases, see Negligence, St. Rep. 376; New Omaha Thompson-HousCent. Dig. $8 42-44; Dec. Dig. Om 32.]

ton Elec. Light Co, V. Anderson, 73 Neb. 84, Error to Circuit Court, Hamilton County; 102 N. W. 89; New Omaha Thompson-HousNathan L. Bachman, Judge.

ton Elec. Light Co. v. Bensden, 73 Neb. 49, Action by Sevier Fryar against the Bur- 102 N. W. 96; Casey V. Adams, 234 Ill. 350, roughs Adding Machine Company. A judg- 84 N. E. 933, 17 L. R. A. (N. S.) 776, 123 Am. ment for the plaintiff was reversed by the St. Rep. 105; Creeden v. Boston & M. R. Co., Court of Civil Appeals, and plaintiff brings 193 Mass. 280, 79 N. E. 344, 9 Ann. Cas. 1121. error. Affirmed.

See notes under Lunt v. Post Ptg. & Pub. Watkins & Watkins, of Chattanooga, for Company, as reported in 30 L. R. A. (N. S.)

60, and also under Creeden v. Boston & M. plaintiff in error. Fleming & Shepherd, of Chattanooga, for defendant in error.

R. Co., as reported in 9 Ann. Cas. 1121.

The policeman was probably standing in GREEN, J. Defendant in error, Fryar,

the vestibule on the property of plaintiff in was a police officer in the city of Chatta- error, and not on the sidewalk, when he was

injured. This is not a material question, nooga. While making his rounds after business hours he noticed that the front door of however, because the injury resulted from the store of plaintiff in error was open. The an actual and indisputable entry on the propofficer went into the house to see if any one erty of plaintiff in error; that is, the reachwas there and, finding no one, concluded that ing in, seizing, and slamming the door. the door had been left open by inadvertence.

Accordingly the judgment of the Court of He returned to the front and, standing in a

Civil Appeals is affirmed. vestibule leading from the sidewalk into the storehouse, he slammed the door. The door fastened with a spring lock, and the jar oc

HOGAN V. HAMILTON COUNTY et al. casioned by shutting it caused a screen, covering the transom, to fall from its place on- (Supreme Court of Tennessee. Sept. 29, 1915.) to the officer's foot, inflicting injuries for 1. OFFICERS 19-ELIGIBILITY

CONSTIwhich he sues.

TUTIONAL AND STATUTORY PROVISIONS-DEThere was a verdict and judgment in favor

FAULTER. of the plaintiff below. This judgmment was 2, § 25, and Shannon's Code, $ 1069, the elec

Under the express provisions of Const. art. reversed in the Court of Civil Appeals, that tion of a defaulter in the payment of state revecourt holding that a motion for peremptory nue to the office of clerk of the county board of instructions should have been sustained, and road commissioners was absolutely void. dismissed the suit.

[Ed. Note.-For other cases, see Officers,

Cent. Dig. 88 22, 23; Dec. Dig. Om 19.] The Court of Civil Appeals was correct.

DE FACTO OFFICERThe acts of the policeman in examining the 2. OFFICERS Om43

RIGHTS. premises and in closing the door were in the The fact that one whose election as clerk line of his duty, and the authorities are uni- of a county board of road commissioners was form to the effect that the owner of property absolutely void was permitted by the county is under no obligation to a policeman or nothing to his rights, and he merely became a

court to take the oath and to give bond added fireman who goes thereupon in the dis- de facto officer and could assert no rights. . charge of his duty, except to refrain from [Ed. Note.-For other cases, see Officers, inflicting upon such an officer a willful or Cent. Dig. 8 65; Dec. Dig. Om43.] wanton injury. That is to say, the officer 3. OFFICERS Cw54 — "DE JURE OFFICER” is a mere licensee, and the property owner

RIGHT TO COMPENSATION. owes him no duty to keep the premises in missioners entitled to hold over under the Con

The clerk of a county board of road comsafe condition.

stitution, after the void election of his intended Under such circumstances a policeman or successor, was the "de jure officer” entitled to fireman goes on the premises by permission serve and to receive the salary of the office. of the law. In the discharge of his duty to Cent.. Dig. $s 74, 75; Dec. Dig. ww54.

[Ed. Note. For other cases, see Officers, the public he may enter upon the premises in disregard of the owner's wishes. He is First and Second Series, De Jure Officer.]

For other definitions, see Words and Phrases, not an invitee. He may enter whether the

4. ELECTIONS O269-CONTEST JURISDICproperty owner is willing or unwilling, and

TION-CHANCERY. his right to enter does not depend on the The Chancery Court has no jurisdiction of property owner's invitation, express or im- a bill brought to contest the election of the one plied, but his entry is licensed by the pub- receiving the highest number of votes, on the lic interest and what has been called the ground of his ineligibility, or to declare the

election void. law of overruling necessity.”. Such is the

[Ed. Note.-For other cases, see Elections, law in the absence of some statute or ordi- Cent. Dig. SS 245, 246; Dec. Dig. 269.]

Tenn.)

LOWENTHAL v. UNDERDOWN

129

5. OFFICERS 101 - ACTION FOR SALARY- over under the Constitution, was entitled to EVIDENCE-RIGHT TO OFFICE.

In, a suit against a county for salary due serve in the office and to take all of its the clerk of the board of road commissioners, emoluments. Even if McCutcheon had unplaintiff might show that the person who had dertaken to perform the duties of the office, been nominally elected as his successor, and who and had collected the salary, this would not had given bond and taken the oath of office was have relieved the county from the duty to a defaulter, and hence not a de jure officer, but only a de facto officer.

pay Hogan, the rightful officer. Mayor and [Ed. Note. For other cases, see Officers, Cent. Aldermen of Memphis v. Woodward, 12 Dig. 88 158_162; Dec. Dig. Om101.] Heisk. (59 Tenn.) 499, 27 Am. Rep. 750.

Appeal from Chancery Court, Hamilton There was therefore no error in the chancelCounty; W. B. Garvin, Chancellor.

lor's action in rendering a decree in favor Bill by John H. Hogan against Hamilton of Hogan and against the county. County and others. Decree for complainant, [4] There was another case argued at the and the defendants appeal. Affirmed. present term, brought by Hogan against Mc

S. H. Ford, Lewis Shepherd, and Allison, Cutcheon, wherein complainant sought to enLynch & Phillips, all of Chattanooga, for ap- join McCutcheon from taking the office. It pellants. J. H. Early and W. B. Swaney, was properly held in an opinion filed by Mr.

J. H. Early and W. B. Swaney, Special Justice Franz that the Chancery both of Chattanooga, for appellee.

Court had no jurisdiction, since the bill reNEIL, C. J. Complainant was clerk and ferred to was but an effort to contest the member of the board of public road commis- election of McCutcheon; the ineligibility of sioners of Hamilton county, with a term be a person having the highest number of votes ginning the first Monday in September, 1912, being one ground of contest in order that and running to the first Monday of Septem- the election may be declared void, as shown ber, 1914, and until his successor should be by well known cases in this state. The Chanelected and qualified. At the August elec- cery Court has no power to entertain juristion, 1914, one Joe N. McCutcheon received diction of a contested election controversy. the highest number of votes, obtained a cer

Adcock v. Houk, 122 Tenn. 269, 122 S. W.

979. tificate of election, presented himself to the county court, and was permitted to take the

[5] The case now before us for decision oath and execute bond for the office. He is not in any sense an election contest, but a thereupon demanded the possession of the direct suit against the county for salary due. books, papers, etc., from Hogan. The latter In such a case the fact may be proven that refused to surrender the office, or the books the person who was nominally elected, and and papers.

McCutcheon, after coming to who gave bond and took the oath of office, the office a few days, desisted; an injunc- was a defaulter, and hence not a de jure tion having been sued out against him by officer, but only an officer de facto. Such Hogan Hogan's refusal to surrender the proof being made, the consequences already office was based on the fact that McCutcheon mentioned naturally follow. had been clerk of the county court and had

It results that the decree of the chancellor defaulted in the payment of state revenue, must be affirmed, with costs. and still remained a defaulter on the day he was elected clerk. Hogan held the office until it was abolished by the Legislature of

LOWENTHAL V. UNDERDOWN. 1915. During this time a salary of $1,050 accrued, but the county refused to pay it. (Supreme Court of Tennessee. Sept. 29, 1915.) When two months had elapsed Hogan sued 1. LICENSES O15—MERCHANTS PERSONS for the amount then due, but subsequently

LIABLE—“SOLICITOR.” filed an amended bill in which he claimed orders, which he forwards to his employer for

One who merely displays samples and takes for the whole time. The question is whether approval, collecting no money and delivering no the county can be compelled to pay this sal goods, is a mere "solicitor,” and not liable for ary.

In our judgment this question should a merchant's license fee. be decided in the affirmative.

[Ed. Note.-For other cases, see Licenses,

Cent. Dig. $$ 30–35; Dec. Dig. Om15. [1-3] It is fully proven, and not denied,

For other definitions, see Words and Phrases, that McCutcheon was a defaulter as previ- First and Second Series, Solicitor.] ously stated. In view of this fact, his elec

2. CONSTITUTIONAL LAW Omw 68 - JUDICIAL tion was absolutely void under the Constitu- FUNCTIONS-POLITICAL QUESTIONS. tion, art. 2, & 25, and under Sh. Code, $ 1069. Whether nonresident merchants should be The fact that he was, by the county court, allowed to compete for local trade by employing permitted to take the oath and give bond, fee is a political question for the Legislature,

solicitors without paying a merchant's license added nothing to his position. He simply with which the courts have no concern. became a de facto officer, and could assert [Ed. Note.-For other cases, see Constitutionno rights. Newman v. Justices of Jefferson al Law, Cent. Dig. 88 125–127; Dec. Dig. County, 6 Humph. 41; Pearce v. Hawkins, 2

On 68.] Swan. 88, 57 Am. Dec. 54. Hogan, being the Appeal from Circuit Court, McMinn Counde jure officer by virtue of his right to hold Ity; Sam C. Brown, Judge.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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