Action by L. Lowenthal, Jr., against G. K. Underdown. From an order dismissing his action, plaintiff appeals. Reversed. Finlay, Campbell & Coffey, of Chattanooga, for appellant. The Attorney General, for appellee. NEIL, C. J. H. Schwartz & Sons are retail shoe merchants in the city of Chattanooga. They sent plaintiff in error to Athens, in McMinn county, with samples of shoes. Plaintiff in error exhibited these shoes to persons who were not merchants, but merely private individuals or consumers, and took orders addressed to H. Schwartz & Sons. Plaintiff in error sold no shoes, did not undertake to sell any, collected no money, and delivered no shoes. H. Schwartz & Sons accepted these orders, if found satisfactory, and shipped the shoes to the purchasers by express. Plaintiff in error had no other part in the transaction than merely soliciting the orders. Under the course of business H. Schwartz & Sons were at liberty to refuse any orders that did not meet their approval. The defendant in error demanded of plaintiff in error $5.25 as merchant's license. He paid the sum under protest, and sued to recover it back. The trial judge dismissed his suit, and an appeal was then prosecuted to this court. We think the learned trial judge was in error. Lowenthal was not a merchant, under the facts stated, but a mere solicitor. It is said, in an opinion filed in the case by the learned trial judge, as a part of his judgment, that it is unjust to the merchants of Athens that Chattanooga merchants should be permitted to sell within their territory without obtaining a merchant's license, and thus paying taxes similar to those of such merchants of Athens. This is a political question for the consideration of the Legisla Our duty is only to determine wheth er, under the laws as they now exist, the plaintiff in error is liable to the tax as a merchant. We think it very clear that, under the facts stated, he was not a merchant. No effort was made to reach H. Schwartz & Sons, or tax them as merchants doing business in Athens; therefore no question aris es on that subject in the present case. On the grounds stated the judgment of the trial court must be reversed, and judgment entered here in favor of the plaintiff for the amount paid, and costs. LAUTERBACH v. STATE. (Supreme Court of Tennessee. Oct. 2, 1915.) 1. HOMICIDE 68-INTENT UNLAWFUL ACT -NEGLIGENCE-PRESUMPTION. Where defendant, while driving an automobile in excess of 20 miles per hour, in violation of Pub. Acts 1905, c. 173, killed a child who ran out in front of the automobile, he was guilty One who, while violating a law, kills another is not relieved by the negligence of the other, for the doctrine of contributory negligence does not apply to criminal acts. Cent. Dig. §§ 91, 92; Dec. Dig. 68.] [Ed. Note.-For other cases, see Homicide, 4. CRIMINAL LAW 724-TRIAL-CONDUCT OF COUNSEL-THREATS. A statement of the prosecuting attorney that "if any one should run over a six years old. child of his, he would take a cannon and shoot him," is improper, as calculated improperly to influence the jury. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1679; Dec. Dig. 724.] 5. CRIMINAL LAW 1186-NEW TRIAL-DISCRETION OF COURT-HARMLESS ERROR. Under Pub. Acts 1911, c. 32, providing that no judgment shall be set aside nor new trial granted for error, unless in the opinion of the appellate court it affected the result of the trial, new trial will not be granted where, in spite of the error, the judgment is sustained by the evidence. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3215-3219, 3221, 3230; Dec. Dig. 1186.] Appeal from Criminal Court, Hamilton County; S. D. McReynolds, Judge. Max Lauterbach was convicted of "unlawfully, feloniously, and recklessly" driving an auto upon John D. White, and thereby causing his death, and he appeals. Affirmed. Lewis Shepherd and J. H. Daly, both of Chattanooga, for appellant. The Assistant Attorney General, for the State. NEIL, C. J. Plaintiff in error was indicted in the criminal court of Hamilton county, for "unlawfully, feloniously, and recklessly" driving an automobile upon John D. White, and thereby causing his death. "At the time," continues the indictment, "said Max Lauterbach was driving said automobile along St. Elmo avenue, a public thoroughfare, at a rate of speed in excess of 20 miles an hour, and in disregard of the presence of said John D. White. Whereby the grand jurors present that the said Max Lauterbach has committed involuntary manslaughter," etc. He was convicted and sentenced to an indeterminate period of from one to five years in the state penitentiary. He has appealed to this court and assigned errors. The weight of the evidence shows that, on the occasion referred to, the plaintiff in error was driving his automobile at the rate of from 25 to 40 miles an hour, as estimated by the various witnesses who testified. The weight of the evidence further shows that I find that the death of the child "was caused John D. White, a child six years old, was by his suddenly breaking loose from his siswalking with his sister on the west side of ter and running into the automobile," the the avenue, within the traveled way; there plaintiff in error could not be convicted. In being no sidewalk at that point. His sister response, the trial judge said: held him by the hand, but he suddenly jerked away just as the automobile was approaching, ran in front of it, and was killed. Our act of 1905, chapter 173, provides: "That no automobile shall be run or driven upon any road, street, highway, or other public thoroughfare at a rate of speed in excess of twenty miles per hour." Section 6 of the same act makes the violation of any of the provisions thereof a misdemeanor punishable by a fine of not less than $25, nor more than $100. St. Elmo avenue is a much traveled street, in the town of St. Elmo, in Hamilton county. "The court gives you that instruction, gentlemen of the jury, and further states to you this proposition again that if the reckless running of the machine caused the death of this child, then he is guilty; if it did not, then he is not guilty." From what has been already said, it is apparent that there is no error in the foregoing of which the plaintiff in error can complain. In our judgment the instruction, as requested, should not have been given at all. [4, 5] There were certain improper statements made by the district attorney general in his address to the jury, to the effect that if anybody should run over a six years old child of his, he would take a cannon and shoot him. On objection being made by counsel for plaintiff in error, the attorney general said that he knew that it was against the law to do such a thing, but he would do it. These were very improper statements, and should have been rebuked by the trial judge. We do not think, however, there should be a reversal on this ground. The conviction was thoroughly grounded on the evidence, and we do not think that these improper statements made by the law officer of the state influenced the verdict. This being true, [1] It is insisted for plaintiff in error that, under the facts stated, his conviction was erroneous. We do not think so. His violation of the statute by running in excess of the speed limit there prescribed was negligence. One who kills another in the act of committing such negligence is guilty of felonious homicide. State v. Campbell, 82 Conn. 671, 74 Atl. 927, 135 Am. St. Rep. 293, 18 Ann. Cas. 236; State v. Goetz, 83 Conn. 437, 76 Atl. 1000, 30 L. R. A. (N. S.) 459; Schultz v. State, 89 Neb. 34, 130 N. W. 972, 33 L. R. A. (N. S.) 403, Ann. Cas. 1912C, 495. And the rule is general at common law that one who kills another while committing an act of neg-we cannot reverse. Acts of 1911, chapter 32. ligence is guilty in like manner. See ex There being no error in the judgment of tended note to case of Johnson v. State, 61 the trial court it must be affirmed. L. R. A. 277 et seq. [2] The plaintiff in error is not relieved by the fact that the child ran suddenly in front of the machine. One who is engaged in the performance of an unlawful act must take the criminal consequences of whatever happens to third persons as a result of that act. It was his duty to anticipate that he might encounter, not only grown persons, but even little children, or even people who were afflicted with blindness or deafness. One who disobeys the statutory rule as to speed is acting in defiance of law, and must be held to have anticipated the possibility of any injury caused by his recklessness. [3] The little child was too young to be guilty of contributory negligence; but, even if it had been a person who had arrived at years of discretion, and he had committed an act similar to that of the child, the plaintiff in error would not have been free of criminal liability, since the rule of contributory negligence does not apply in criminal cases. State v. Campbell, supra; Reg. v. Longbottom, 3 Cox C. C. (Eng.) 439; Reg. v. Kew, 12 Cox C. C. (Eng.) 335; State v. Moore, 129 Iowa, 514, 106 N. W. 16, and other cases cited in note to Schultz v. State, Ann. Cas. 1912C, 501 et seq. An instruction was offered, in the trial court, to the effect that if the jury should STUDER v. ROBERTS. (Supreme Court of Tennessee. Oct. 2, 1915.) PROCESS 6-SUMMONS-AMENDMENT-STAT UTES. Under Shannon's Code, § 4495, providing that new plaintiffs or defendants may be added to the suit by plaintiff upon supplemental process taken out and served, and section 4589, court may strike out and insert in the writ or included in the same act, providing that the pleadings the names of others as plaintiffs or defendants, process to bring in defendant after an amendment substituting plaintiff as admin istrator, instead of plaintiff in his own name, was not required, and a notification by the court's order, in place of formal process, was sufficient. [Ed. Note.-For other cases, see Process, Cent. Dig. § 5; Dec. Dig. 6.] Certiorari to Court of Civil Appeals. Suit by W. H. Roberts, administrator, against Otto Studer. From a judgment of the Court of Civil Appeals, affirming a judgment of the circuit court for Hamilton county for plaintiff, defendant brings certiorari. Affirmed. J. H. Early, of Chattanooga, for plaintiff. Sizer, Chambliss & Chambliss, of Chattanooga, for defendant. WILLIAMS, J. This suit was brought by I that the language used in the two cases above W. H. Roberts in his own name to recover cited announced the correct rule. damages for the alleged wrongful death of his daughter, Bessie Roberts, due to the carelessness of Studer in the operation of an automobile. Thereafter Roberts moved for and was granted leave to amend the writ or summons and the declaration so as to add after his name the words, "as administrator of the estate of Bessie Roberts, deceased." Thereupon Studer filed his plea in abatement setting forth that since the amendment of the suit and the substitution of W. H. Roberts, administrator, for the original plaintiff, he had not been served with process; which plea was stricken by the court on motion of the plaintiff below. A plea in bar of "not guilty" was then filed, and the trial was proceeded with. The Court of Civil Appeals sustained this ruling on the plea in abatement and affirmed the judgment below. The contention of Studer is that process to bring him in was required by Code (Shannon) § 4495, which is as follows: "At any time before trial, new plaintiffs or defendants may be added to the suit by the plaintiff, upon supplemental process taken out and served, and subject to such terms in regard to costs as the court may impose." By another section (4589) it is provided that the court shall have power to strike out and insert in the writ or pleadings the names of either plaintiffs or defendants, so as to have the proper parties before the court. Both of the above provisions appear in the same legislative act, from which they were brought forward into the Code. Acts 185152, c. 152, § 6. In Flatley v. Railroad, 9 Heisk. (56 Tenn.) 230, it was said that previous to such legislative enactment the result of such a mistake as to the party plaintiff would have been to compel an abandonment of the action, but that this was obviated by the provisions before referred to, which allowed the name of a new plaintiff to be substituted. Judge McFarland said: "The defendant being in court for a particular cause of action, it is not required that the expense and delay shall be incurred of new pro cess.' 99 In Love v. Railroad, 108 Tenn. 120, 65 S. W. 475, 55 L. R. A. 471, this language was quoted with approval. Counsel for Studer insist that what was said in these two cases was obiter, since the question involved in each was whether the amendment by way of substitution of a party plaintiff related to the date of the original commencement of the suit in respect of the running of the statute of limitation; and, further, that the court in no reported decision has passed upon the question when raised, as here, by a plea in abatement. This may be true, but we are of opinion The question was directly passed upon, in a case arising in this state, by the United States Circuit Court of Appeals of the Sixth Circuit in the case of Person v. Fidelity, etc., Co., 92 Fed. 965, 35 C. C. A. 117 (reversing [C. C.] 84 Fed. 759), where it was held that the amendment by substitution, as in the instant case, was permissible under section 4589, and effective. The defendant was already before the court and cognizant of the amendment. In respect of an addition of a new party defendant at the instance of a plaintiff, there is room for the application of the words of section 4495, "upon supplemental process taken out and served," without a conflict between the two sections thus drawn from the same act; and these words are not to be deemed to prescribe a requirement as to the notification of a defendant in such circumstance of a change, by substitution, in the plaintiff who may be prosecuting the cause of action. The notification by the court's order in the circumstances served in lieu of a notification by formal process. Finding no reversible error on this or other points, the judgment of the Court of Civil Appeals is affirmed. Where, after the death of a life tenant, the the land and compensation from lessees for use, remainderman sought to recover possession of there was no ratification of the lease within Shannon's Code, § 4184, authorizing an apportionment of rent. [Ed. Note.-For other cases, see Life Estates, Cent. Dig. § 47; Dec. Dig. 25.] 3. LIFE ESTATES 25 "EMBLEMENTS" RIGHT TO. Where a life tenant, having leased the premises, died, and the remainderman did not recognize the lease, the lessee of the life tenant was entitled to the emblements, which are the crops of grain growing yearly, but requiring an outlay of labor or industry, without payment of any compensation for use of the land in harvesting the emblements (citing Words and Phrases, First and Second Series, Emblements). [Ed. Note. For other cases, see Life Estates, Cent. Dig. § 47; Dec. Dig. 25.] Certiorari to Court of Civil Appeals. Action by Reuben S. Turner against G. S. Turner and others. From a judgment for From a judgment for defendants, plaintiff appealed to the Court of Civil Appeals, which rendered judgment in his favor, and defendants bring certiorari. Judgment of the Court of Civil Appeals reversed, and that of the lower court affirmed. Simerly & Simerly, of Newport, for plaintiff. Ailor & Carty, of Newport, for defend ants. WILLIAMS, J. This is an action of unlawful detainer and to recover rent. The mother of complainant was the life tenant of a tract of land which was leased by her authority to defendants for the year 1912. She died on June 2, 1912, and the bill was filed shortly thereafter by complain ant, who was the remainderman. The defendants, who are the lessees of the tenant for life, had sowed the land to corn, beans, and potatoes prior to June 2d, and in their answer they asserted their right to emblements. contrary is true. The complainant did not recognize the contract of rental as one validly made by or under the authority of the life tenant, nor the right of the lessee to remain in possession thereunder accounting in part to the personal representative of the life tenant. The above-quoted statute was not intended to put it within the power of a life tenant to create a lease upon the land which would extend beyond the date of the falling in of the life estate, the remainderman not joining. This was held in the case of Collins v. Crownover (Ch. App.) 57 S. W. 357, in an opinion by the present Chief Justice, while on the bench of that court, which ruling was affirmed by this court. At common law the lease contract of a life tenant terminated at his death. Arnold v. Hodges, supra; Collins v. Crownover, supra; Hoagland v. Crum, 113 Ill. 365, 55 Am. Rep. 424; Carman v. Mosier, 105 Iowa, 367, 75 N. W. 323. The purpose of the act of 1877 was to correct the harsh and articifial rule of the The complainant set up a claim to compen- common law to the effect that such a consation from the lessees for the use and tract of lease was so far an entirety as possession of the land for the entire year of that the rent so arising could not be appor1912, and sought a recovery thereof. The tioned; therefore that on the death of the bill of complaint, moreover, alleged the fall-life tenant in the course of the year before ing in of the life estate, and that complain- the due date for the rent his lessee might ant became thereupon "entitled to the land quit the premises and pay no rent to any and everything thereon," and prayed for the one for the occupation. Collins v. Crownissuance of a writ of possession. The Court of Civil Appeals treated the case as one where complainant had recognized the right of the lessee to the premises, under the life tenant's contract, thus making applicable the provisions of section 4184 of Shannon's Code (Acts 1877, c. 159) which is as follows: "Where a tenant for life of real estate shall create a lease out of his said estate for one or more years, and shall die before the expiration of said lease, and before the term fixed for the payment of the rent, the rent may be apportioned, and the executor or administrator of said tenant for life may recover of the lessee, pro rata, according to the contract, and for the time said lessee had the use of the property until the death of said tenant for life." That court, reversing the chancellor, rendered a decree in behalf of complainant for rents in accordance with the prayer of the bill. A review of its action is sought by writ of certiorari on the question of rents; the question of possession having been disposed of by an agreed order in the lower court. [1, 2] It was competent for the complainant, as remainderman, to recognize or ratify that lease contract, and to thus share in the rental sum pro tanto under the statute, or to disaffirm. Arnold v. Hodges, 10 Humph. (29 Tenn.) 40. But we fail to see how in an effort to dispossess the subtenant and to recover for past use and occupation in his own right there was evidenced the ratifica over, supra. [3] What, then, were the rights of the respective parties, on the basis of the statute not being applicable? The lessee of the life tenant clearly was entitled to emblements. 24 Cyc. 1070. Coke on Littleton states the rule broadly: "So, therefore, if tenant for life soweth the ground and dieth, his executors shall have the termined by the act of God; and the same law corn, for that his estate was uncertain and deis of the lessee for years of the tenant for life." See, also, Edghill v. Mankey, 79 Neb. 347, 112 N. W. 570, 11 L. R. A. (N. S.) 688, and note. Emblements may be defined to be such crops of grain, roots, and the like as grow yearly, not spontaneously, but by reason of an outlay of labor or industry in the sowing or planting in one part of the year, the recompense for which is to be the crop maturing in the later part of the same year. Words and Phrases, First Series, 2359; Id., Second Series, 253. The right to take emblements depends upon the fact of sowing or planting by the life tenant or lessee, and does not attach by reason merely of a preparation of the soil for planting. Bradley v. Bailey, 56 Conn. 374, 15 Atl. 746, 1 L. R. A. 427, 7 Am. St. Rep. 316; Collins v. Crownover, supra. Where, as here, the life tenant makes a lease and dies before the expiration of the term, the lessee, if he has sown the land fructus industriales, is entitled to emblements. The doctrine is said to rest partly on the idea of compensation, but chiefly upon the policy of encouraging agriculture by assuring the fruits of his labor to one who cultivates soil thus held by uncertain tenure. The doctrine allows the life tenant or his lessee the right of ingress and egress for the cultivation of the crop if growing, for its preservation, and for its removal at maturity. The record does not disclose that the lessee did more than exercise this right. Is the remainderman, who disaffirms the lease contract made by the life tenant, entitled to recover rent or compensation for such qualified use made of his land? This appears to be a problem on which the authorities differ. Plowden at an early day raised the question in Queries appended to Plowden's Reports, p. 239, and inclines to the view that the remainderman would be. Williams, in his work on Executors, and Washburn on Real Property, raise the question, and refer to Plowden, but do not themselves venture an answer. Such a claim on the part of the remainderman is not well founded, in the opinion of Redfield in 3 Redf. Wills, 155, par. 5, and of Pingrey in 1 Pingrey, Real Prop. § 308. We do not find any adjudication of the point by the courts. It would seem that the latter view best comports with the idea of compensation to the lessee that underlies the doctrine of emblements. It is not apparent that he would be encouraged to enter and cultivate under the uncertain tenure of a tenant for life if he be held subject to be called to pay the remainderman for the qualified use a sum that is undetermined and indefinite as to amount. However, this question does not stand for solution on the record. The complainant did not sue to recover for any such qualified use, nor did he adduce any proof as to the value of such a use. In our view, the special chancellor, in disallowing rents as such, reached a correct result, and the Court of Civil Appeals erred in not so ruling. Reversed. Decree here affirming the decree of the chancery court; all costs to be paid by complainant. HUTTON v. WATTERS et al. (Supreme Court of Tennessee. Sept. 29, 1915.) 1. TORTS 26-INJURY TO BUSINESS-LIA BILITY. tion. and that the defendants acted from ill will, and not by reason of business rivalry or competimurrable, the facts showing a cause of action, Held, that the declaration was not deeven though the act itself was lawful, if the defendant was actuated by malice and destroyed the plaintiff's business without reasonable adright to conduct a lawful business and to have vantage to himself, since every person has the that right enforced or the wrong redressed if the right is infringed upon. [Ed. Note.-For other cases, see Torts, Cent. Dig. § 33; Dec. Dig. 26.] 2. TORTS 10-INJURY TO BUSINESS. In an action for wrongful injury to plaintiff's business, the question of whether the acts complained of were within the rights of the defendant as being in the due course of comsolely by malice and unjustifiable, must be depetition for his own advantage, or actuated termined upon the facts in each case, and no rule can be laid down for its determination. [Ed. Note.-For other cases, see Torts, Cent. Dig. § 10; Dec. Dig. 10.1 3. TORTS 4 "MALICIOUS" ACT-JUSTIFI CATION. A "malicious" act is one injurious to another, intentional, and without legal justification, and is unlawful and actionable, but if an act, otherwise lawful, has a reasonable tendency to promote ends advantageous to the doer, malice in the doing does not bring it within the rule. [Ed. Note.-For other cases, see Torts, Cent. Dig. § 4; Dec. Dig. 4. First and Second Series, Malicious.] Certiorari to Court of Civil Appeals. Action by E. J. Hutton against H. E. Watters and others. Demurrer to the petition was sustained, and on appeal to the Court of Civil Appeals that judgment was reversed, and defendants bring certiorari. Affirmed. L. E. Holladay, of Dresden, for appellants. A. B. Adams, of Martin, and R. E. Maiden, of Dresden, for appellee. tion are, in substance, as follows: One of the defendants, the Hall-Moody Institute, is a chartered institution of learning at Martin, Tenn. Defendant Watters is its president, and the 10 other defendants are its "directors, trustees, teachers, and advis ors." The school has a large out of town patronage, and it is essential that boarding houses be conducted to accommodate these students, as well as some of the teachers. Mrs. Hutton is a widow who makes a business of keeping boarders. In June, 1910, she opened a business of the kind in Martin. During that year one James Wilson became one of her customers. Some students did Plaintiff's petition alleged that she op- the same. Defendants offered no objection erated a boarding house near a school of which the defendant was president; that the defend- until after a personal difficulty had occurred ant, having disagreed with one boarder at the between Wilson and defendant Watters. plaintiff's house, demanded his ejection there- The latter then demanded that plaintiff disfrom and was refused; that he, with others, then attempted to, and did, destroy the plain- miss Wilson. She refused. Because of this tiff's business, by threats against students who refusal Watters became her enemy, and the boarded with the plaintiff, by deterring new ar- other defendants ranged themselves with him, rivals from going to the plaintiff's house, and by other means; that the plaintiff was of good and all formed a conspiracy to drive her out character, and operated a reputable house; of business. Thereupon, from time to time, |