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the only method available to him of com- [ plying with the requirement that the indorsement of the forfeiture should be made upon the obligation, and, since due entry of the forfeiture was made upon the purchaser's account, the entry upon the account and such indorsement upon the file wrapper constituted a substantial compliance with the law. In the latter case, it was held that the entry of the forfeiture upon the purchaser's account and an indorsement of for

feiture upon the file wrapper, which then contained the purchaser's obligation, was likewise a substantial compliance with the requirements of the statute. In neither of these decisions is it intimated that the observance of merely one of the requirements amounts to a substantial compliance with 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 requirements, there would have been no need of discussing or giving any effect to the indorsement upon the file wrapper. Instead, the court gave substantial effect to that indorsement, holding, as stated, that such indorsement, under the facts of the cases, together with the entry upon the account, substantially met the requirements of the statute. In Brightman v. Comanche County decision of the question, whether entry of the forfeiture on the account alone would be sufficient where, as was the condition in that case, the obligation was not in the Land Office, was expressly pretermitted.

Adams v. Terrell, 101 Tex. 331, 107 S. W. 537, involved a forfeiture by the commissioner for failure to reside upon the land as required by the law. The question presented was whether such failure had the effect, in itself, of constituting a forfeiture, or whether, upon such failure, a declaration of the forfeiture by the commissioner was necessary. The act of 1895 provided that, in the event of the failure by the purchaser to re

side upon and improve the land as required

by law, he should forfeit it to the state "in the same manner as for the nonpayment of

interest.” The act of 1901 provided that, in

the event of such failure, the purchaser

"Does any reason suggest itself why it should be necessary to a forfeiture of nonpayment of interest that the commissioner should enter it on the account, and why a like method should not be adopted in case of a forfeiture for nonoccupancy? None presents itself to our minds. counts with the purchaser are kept in the Land On the contrary, it would seem, since the acOffice, and since they will necessarily show the fact in case the interest is not paid, there is less reason for declaring the forfeiture in that case, than in case of nonoccupancy, where there is no public record to show the fact."

A usage in the Land Office, long pursued, of declaring forfeitures for nonpayment of interest by simply making the indorsement on the purchaser's obligation, to which our attention has been directed by the respondents, would be persuasive if the construction of the statute were doubtful. But we regard its provisions as plain.

LOWRY v. SOUTHERN RY. CO.

(Supreme Court of Tennessee. Oct. 9, 1915.) MASTER AND SERVANT 258 ACTION FOR INJURY-SUFFICIENCY OF DECLARATION.

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In an action for the death of plaintiff's intestate while in the defendant's employ as a yard inspector, the declaration averred that it was customary for employés in defendant's ers; that there was a rule under the federal yard to go under cars on the track during showand state law and of the Interstate Commerce Commission, adopted by defendant, that before a standing car would be moved in the yard notice would be given; that defendant and deceased were engaged in interstate commerce; that while he was inspecting cars in the yard deceased went under the car during a shower; and that defendant, in violation of the rule, switched cars against the one under which intestate was, and killed him. Held, that the dismissal of the action for failure to comply specific, and to designate the name of the vice with a motion to make the declaration more principals, etc., alleged to have been negligent, and what rule had been violated, was erroneous, as the declaration set out with particularity and in a substantial way the cause of action on which plaintiff sued, and as such matters were more within the knowledge of the defendant.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig. m 258.1

Appeal from Circuit
Circuit Court, Hamilton
County; Nathan L. Bachman, Judge.

Action by Mrs. Eliza Lowry, administra

Appeals, reversing and remanding a judgment for defendant, dismissing the case, defendant appeals. Affirmed.

should 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 requiring, for the accrual of a forfeiture, on account of nonoccupancy, the same character 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 observance of the requirement that the entry be made upon the account was regarded as essential in order for a forfeiture to accrue for the nonpayment of interest. This language was made use of:

FANCHER, J. Plaintiff's intestate, Chas. J. Lowry, was killed in the yards of the defendant railway company on or about the 26th day of June, 1914, at Citico, near Chattanooga, while engaged as a yard inspector, track hand, and general repair servant for

the defendant. Just previous to the accident! he was inspecting a car, to ascertain if it needed attention of any kind, when a rain

came up.

ings.

We think the trial judge was in error in granting the motion of the railway company to require plaintiff to specifically point out the names of the servants who neglected their duty toward the deceased, and to point out specifically the rules and regulations

Defendant moved the court to require the plaintiff to make her declaration more specific, and to designate the names of the 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 interstate commerce, or in commerce being transported from points outside of Tennessee, into Tennessee, through Chattanooga and the switchyards, where the deceased was work ing, and forward to other points outside of and beyond the state of Tennessee, and it was averred that the said Chas. J. Lowry, which were required of it. The declaration while so actively engaged in said duties, was ordered to make certain repairs on a switch in the yards, and to inspect certain box or freight cars, which necessitated his getting under the cars; that a certain train of the defendant company had come into the yards with broken chains, and a part of the apparatus necessary to keep the air brakes in good order was in defective condition; that while performing this repair work he stooped, with the view of getting under the car to make an inspection, and immediately preceding this act it began to rain, and that while it was so raining there was no chance for employés to do very much in the way of work; that the defendant company violated and negligently disregarded each and all of the duties toward the deceased above enumerated, in that it failed to blow a whistle or give other warning that it was about to switch an engine to the train and move it, and that without notice, and without warning of any kind or character, the defendant railway company unlawfully, negligently, carelessly, and wrongfully moved an engine up to and against its train where the deceased was then engaged in such repair work, and caused its servants to move the train, and the wheels of such car or train ran over the body of Chas. J. Lowry, inflicting

was undoubtedly sufficient, in that it set out with particularity and in a substantial way the cause of action for which plaintiff sued.

In the case of May v. Railroad, 129 Tenn. 521, 167 S. W. 477, L. R. A. 1915A, 781, the present Chief Justice of this court pointed out proper rules of practice with respect to this question and reviewed former cases in this state upon the subject. The court reviewed somewhat at length the authorities from other jurisdictions upon this particular question.

We will not undertake to review the subject here. It is sufficient to say that this court recognizes the right in a proper case and upon the proper showing of a defendant to require the plaintiff to state with greater particularity as to time or other material averment, so as to give necessary notice to the defendant; and it is true that when so required plaintiff's suit will be dismissed if he fails to comply, unless he shows that he is unable to state the date or fix the particular facts more definitely.

Having in mind the rules of practice as stated in May v. Railroad, supra, we are of opinion that plaintiff should not have been required to comply with defendant's motion. This motion was not supported by anything, so far as the record discloses, showing any

the cause of action. The declaration on its face is full enough. The defendant does not show that it cannot prepare its defense without a more particular statement as to names of the persons who moved the train and the rules required of it, which it had adopted. The presumption is that the railroad would know more about these matters than plaintiff would. If persons bringing suits against railroad companies were required to comply with motions of this kind, in every instance, they would often fail in meritorious cases, because of their inability to point out by name the agents or servants whose negligence produced the injury, or to specifically state the exact wording of rules and regulations that were violated.

The declaration does state that the employés failed to sound a whistle, ring a bell, or pursue any other method of warning to the deceased that the cars were about to be moved. It states with sufficient certainty that there were rules requiring this. We think this was sufficient on the point in question to give the defendant reasonable notice of the grounds upon which the action was predicated.

The judgment of the Court of Civil Appeals, in reversing the case and remanding it for further proceedings in the court below,

is affirmed.

CITY OF CHATTANOOGA v. CARTER et ux. (Supreme Court of Tennessee. Oct. 2, 1915.) HUSBAND AND WIFE 209-RIGHTS OF HUSBAND-SERVICES OF WIFE.

The Married Women's Act (Laws 1913, c. 26), which relieved married women from all disability on account of coverture, did not affect a wife's marital duties, and a husband, as at common law, may recover for loss of the services of his wife by reason of personal injuries sustained by her.

[Ed. Note. For other cases, see Husband and Wife, Cent. Dig. §§ 766-772, 968, 973; Dec. Dig. 209.]

Certiorari to Court of Civil Appeals. Action by C. H. Carter and wife against, the City of Chattanooga. From a judgmen. for plaintiffs, defendant appealed, and, it being affirmed by the Court of Civil Appeals, defendant brings certiorari. Affirmed.

W. J. Counts, Ford & Yarnell, all of Chattanooga, for plaintiffs. Coleman & Frierson, of Chattanooga, for defendant.

FANCHER, J. A recovery was had by C. H. Carter, the husband, for the loss of services of his wife by reason of personal injuries sustained by her. The judgment of the circuit court was sustained by the Court of Civil Appeals. It is assigned as error that no recovery can be had by the husband in such cases since the Married Women's Act of 1913, chapter 26, which provides as fol

lows:

"That married women be, and are, hereby fully emancipated from all disability on account of coverture, and the common law as to the disabilities of married women and its effect on the rights of property of the wife, is totally abrogated, and marriage shall not impose any disability or incapacity on a woman as to the ownany sort, or as to her capacity to make contracts ership, acquisition, or disposition of property of and do all acts in reference to property which she could lawfully do if she were not married; be married, shall have the same capacity to acbut every woman now married, or hereafter to quire, hold, manage, control, use, enjoy, and dispose of, all property, real and personal, in possession, and to make any contract in referto sue and be sued with all the rights and inence to it, and to bind herself personally, and cidents thereof, as if she were not married."

It is contended that this act is so broad in its provisions, and the emancipation is so complete, as to merge all rights of action arising from injuries to the wife into one right of action, vested in her.

The act in its caption is recited broadly to be:

"An act to remove disabilities of coverture from married women, and to repeal all acts and parts of acts in conflict with the provisions of this act."

At common law the wife was termed a

feme "covert," and her condition during marriage was called her "coverture." Blackstone recognized two features of this coverture. One feature embraced personal rights; the other the rights of property. 1 Blackstone, Com. 442.

husband and wife depend almost all the legal "Upon this principle of a union of person in rights, duties and disabilities that either of them acquire by the marriage." Id.

The act in question does not affect the legal rights and duties of that relationship further than to emancipate the wife from her disabilities that attached to the relationship.

Embraced in these disabilities are her incapacity to act for herself with respect to her property, to make contracts, to bind herself personally, to sue and be sued. In fact, the wife was placed on that footing enjoyed by the husband as to the right to hold, manage, control, use, enjoy, and dispose of all property; to make any contract in reference to it and to sue and be sued. The act does not deprive either the husband or wife of the conjugal relationship, with its duties and rights.

It results that there was no error in the

action of the Court of Civil Appeals in sustaining the judgment in favor of the husband, and it is affirmed.

BURROUGHS ADDING MACH. CO. v.

FRYAR. (Supreme Court of Tennessee. Oct. 5, 1915.) NEGLIGENCE 32-OWNERS OF BUILDINGSDUTIES TO LICENSEE-POLICE OFFICER.

A police officer, observing a door of the defendant company to be open, while the room was unoccupied, went into the store, and when coming out closed the door with such force as

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig.

32.]

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. St. Rep. 376; New Omaha Thompson-Houston Elec. Light Co, v. Anderson, 73 Neb. 84, 102 N. W. 89; New Omaha Thompson-Houston Elec. Light Co. v. Bensden, 73 Neb. 49, 102 N. W. 96; Casey v. Adams, 234 Ill. 350, 84 N. E. 933, 17 L. R. A. (N. S.) 776, 123 Am. St. Rep. 105; Creeden v. Boston & M. R. Co., 193 Mass. 280, 79 N. E. 344, 9 Ann. Cas. 1121. See notes under Lunt v. Post Ptg. & Pub.

Error to Circuit Court, Hamilton County; Nathan L. Bachman, Judge.

Action by Sevier Fryar against the Burroughs Adding Machine Company. A judgment for the plaintiff was reversed by the Court of Civil Appeals, and plaintiff brings error. Affirmed.

Watkins & Watkins, of Chattanooga, for plaintiff in error. Fleming & Shepherd, of

Chattanooga, for defendant in error.

GREEN, J. Defendant in error, Fryar, was a police officer in the city of Chattanooga. While making his rounds after business hours he noticed that the front door of

the store of plaintiff in error was open. The officer went into the house to see if any one was there and, finding no one, concluded that the door had been left open by inadvertence. He returned to the front and, standing in a vestibule leading from the sidewalk into the storehouse, he slammed the door. The door fastened with a spring lock, and the jar occasioned by shutting it caused a screen, covering the transom, to fall from its place onto the officer's foot, inflicting injuries for which he sues.

There was a verdict and judgment in favor of the plaintiff below. This judgmment was reversed in the Court of Civil Appeals, that court holding that a motion for peremptory instructions should have been sustained, and

dismissed the suit.

The Court of Civil Appeals was correct. The acts of the policeman in examining the premises and in closing the door were in the line of his duty, and the authorities are uniform to the effect that the owner of property is under no obligation to a policeman or fireman who goes thereupon in the discharge of his duty, except to refrain from inflicting upon such an officer a willful or wanton injury. That is to say, the officer is a mere licensee, and the property owner owes him no duty to keep the premises in

safe condition.

Company, as reported in 30 L. R. A. (N. S.) 60, and also under Creeden v. Boston & M.

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

The policeman was probably standing in the vestibule on the property of plaintiff in error, and not on the sidewalk, when he was injured. This is not a material question, however, because the injury resulted from an actual and indisputable entry on the property of plaintiff in error; that is, the reaching in, seizing, and slamming the door.

Accordingly the judgment of the Court of Civil Appeals is affirmed.

HOGAN V. HAMILTON COUNTY et al. (Supreme Court of Tennessee. Sept. 29, 1915.) 1. OFFICERS 19-ELIGIBILITY CONSTITUTIONAL AND STATUTORY PROVISIONS-DE

FAULTER.

Under the express provisions of Const. art. 2, § 25, and Shannon's Code, § 1069, the election of a defaulter in the payment of state revenue to the office of clerk of the county board of road commissioners was absolutely void.

[Ed. Note.-For other cases, see Officers, Cent. Dig. §§ 22, 23; Dec. Dig. 19.] 2. OFFICERS 43 - DE FACTO OFFICERRIGHTS.

The fact that one whose election as clerk of a county board of road commissioners was absolutely void was permitted by the county court to take the oath and to give bond added nothing to his rights, and he merely became a de facto officer and could assert no rights.

[Ed. Note.-For other cases, see Officers, Cent. Dig. § 65; Dec. Dig. 43.] 3. OFFICERS 54-"DE JURE OFFICER" RIGHT TO COMPENSATION.

missioners entitled to hold over under the Con-
The clerk of a county board of road com-
stitution, after the void election of his intended
successor, was the "de jure officer" entitled to
serve and to receive the salary of the office.

[Ed. Note.-For other cases, see Officers,
Cent. Dig. 88 74, 75; Dec. Dig. 54.
For other definitions, see Words and Phrases,
First and Second Series, De Jure Officer.]

4. ELECTIONS 269-CONTEST JURISDIC

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Under such circumstances a policeman or fireman goes on the premises by permission of the law. In the discharge of his duty to the public he may enter upon the premises in disregard of the owner's wishes. He is not an invitee. He may enter whether the property owner is willing or unwilling, and 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 law of overruling necessity.". Such is the law in the absence of some statute or ordi

TION-CHANCERY.

election void.

[Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 245, 246; Dec. Dig. 269.]

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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 the clerk of the board of road commissioners, plaintiff might show that the person who had been nominally elected as his successor, and who had given bond and taken the oath of office was a defaulter, and hence not a de jure officer, but only a de facto officer.

[Ed. Note.-For other cases, see Officers, Cent. Dig. 88 158-162; Dec. Dig. 101.]

Appeal from Chancery Court, Hamilton County; W. B. Garvin, Chancellor.

Bill by John H. Hogan against Hamilton County and others. Decree for complainant, and the defendants appeal. Affirmed.

S. H. Ford, Lewis Shepherd, and Allison, Lynch & Phillips, all of Chattanooga, for appellants. J. H. Early and W. B. Swaney, both of Chattanooga, for appellee.

NEIL, C. J. Complainant was clerk and member of the board of public road commissioners of Hamilton county, with a term beginning the first Monday in September, 1912, and running to the first Monday of September, 1914, and until his successor should be elected and qualified. At the August election, 1914, one Joe N. McCutcheon received the highest number of votes, obtained a certificate of election, presented himself to the county court, and was permitted to take the oath and execute bond for the office. He thereupon demanded the possession of the books, papers, etc., from Hogan. The latter refused to surrender the office, or the books and papers. McCutcheon, after coming to the office a few days, desisted; an injunetion having been sued out against him by Hogan. Hogan's refusal to surrender the office was based on the fact that McCutcheon had been clerk of the county court and had defaulted in the payment of state revenue, and still remained a defaulter on the day he was elected clerk. Hogan held the office until it was abolished by the Legislature of 1915. During this time a salary of $1,050 accrued, but the county refused to pay it. When two months had elapsed Hogan sued for the amount then due, but subsequently filed an amended bill in which he claimed for the whole time. The question is whether the county can be compelled to pay this salIn our judgment this question should be decided in the affirmative.

ary.

[1-3] It is fully proven, and not denied, that McCutcheon was a defaulter as previously stated. In view of this fact, his election was absolutely void under the Constitution, art. 2, § 25, and under Sh. Code, § 1069. The fact that he was, by the county court, permitted to take the oath and give bond, added nothing to his position. He simply became a de facto officer, and could assert no rights. Newman v. Justices of Jefferson County, 6 Humph. 41; Pearce v. Hawkins, 2 Swan. 88, 57 Am. Dec. 54. Hogan, being the de jure officer by virtue of his right to hold

serve in the office and to take all of its emoluments. Even if McCutcheon had undertaken to perform the duties of the office, and had collected the salary, this would not have relieved the county from the duty to pay Hogan, the rightful officer. Mayor and Aldermen of Memphis v. Woodward, 12 Heisk. (59 Tenn.) 499, 27 Am. Rep. 750. There was therefore no error in the chancellor's action in rendering a decree in favor of Hogan and against the county.

[4] There was another case argued at the present term, brought by Hogan against McCutcheon, wherein complainant sought to enjoin McCutcheon from taking the office. It was properly held in an opinion filed by Mr. Special Justice Franz that the Chancery Court had no jurisdiction, since the bill referred to was but an effort to contest the election of McCutcheon; the ineligibility of a person having the highest number of votes being one ground of contest in order that the election may be declared void, as shown by well known cases in this state. The Chancery Court has no power to entertain jurisdiction of a contested election controversy. Adcock v. Houk, 122 Tenn. 269, 122 S. W.

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PERSONS

(Supreme Court of Tennessee. Sept. 29, 1915.) 1. LICENSES 15-MERCHANTS LIABLE "SOLICITOR." One who merely displays samples and takes orders, which he forwards to his employer for approval, collecting no money and delivering no goods, is a mere "solicitor," and not liable for a merchant's license fee.

[Ed. Note.-For other cases, see Licenses, Cent. Dig. §§ 30-35; Dec. Dig. 15. For other definitions, see Words and Phrases, First and Second Series, Solicitor.] 2. CONSTITUTIONAL LAW 68- JUDICIAL FUNCTIONS-POLITICAL QUESTIONS.

Whether nonresident merchants should be

allowed to compete for local trade by employing fee is a political question for the Legislature, solicitors without paying a merchant's license with which the courts have no concern.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. 88 125-127; Dec. Dig. 68.1

Appeal from Circuit Court, McMinn County; Sam C. Brown, Judge.

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

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