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Action by L. Lowenthal, Jr., against G. K. of felonious homicide, since he was negligent in Underdown. From an order dismissing his violating the statute. action, plaintiff appeals. Reversed.

[Ed. Note. For other cases, see Homicide,

Cent. Dig. $$ 91, 92, Dec. Dig. Om 68.] Finlay, Campbell & Coffey, of Chattanooga, 2. HOMICIDE 68 - INTENT UNAWFUL for appellant. The Attorney General, for ap- ACT-PRESUMPTION. pellee.

One who, while violating the law by speeding an auto, kills another is not relieved by the

fact that the other ran in front of the auto, since NEIL, C. J. H. Schwartz & Sons are re- he is presumed to anticipate the possibility of tail shoe merchants in the city of Chatta- any result of his recklessness. nooga. They sent plaintiff in error to Ath- [Ed. Note.-For other cases, see Homicide, ens, in McMinn county, with samples of shoes. Cent. Dig. $$ 91, 92; Dec. Dig. Om 68.] Plaintiff in error exhibited these shoes to 3. HOMICIDE O 68-DEFENSES CONTRIBUpersons who were not merchants, but merely

TORY NEGLIGENCE.

One who, while violating a law, kills anprivate individuals or consumers, and took other is not relieved by the negligence of the orders addressed to H. Schwartz & Sons. other, for the doctrine of contributory negliPlaintiff in error sold no shoes, did not un- gence does not apply to criminal acts. dertake to sell any, collected no money, and Cent. Dig. $$ 91, 92; Dec. Dig. Om68.]

[Ed. Note.-For other cases, see Homicide, delivered no shoes. H. Schwartz & Sons accepted these orders, if found satisfactory, and

4. CRIMINAL LAW Own 724—TRIAL-CONDUCT

OF COUNSEL-THREATS. shipped the shoes to the purchasers by ex- A statement of the prosecuting attorney press. Plaintiff in error had no other part that “if any one should run over a six years old in the transaction than merely soliciting the child of his, he would take a cannon and shoot orders. Under the course of business H. influence the jury.

him," is improper, as calculated improperly to Schwartz & Sons were at liberty to refuse

[Ed. Note.-For other cases, see Criminal any orders that did not meet their approval. Law, Cent. Dig. § 1679; Dec. Dig. Om724.] The defendant in error demanded of plaintiff 5. CRIMINAL LAW 1186-NEW TRIAL-Dis. in error $5.25 as merchant's license. He CRETION OF COURT-HARMLESS ERROR. paid the sum under protest, and sued to re

Under Pub. Acts 1911, c. 32, providing that

no judgment shall be set aside nor new trial cover it back. The trial judge dismissed his granted for error, unless in the opinion of the suit, and an appeal was then prosecuted to appellate court it affected the result of the this court.

trial, new trial will not be granted where, in We think the learned trial judge was in spite of the error, the judgment is sustained by

the evidence. Lowenthal was not a merchant, un

[Ed. Note.–For other cases, see Criminal der the facts stated, but a mere solicitor. Law, Cent. Dig. $8 3215-3219, 3221, 3230; It is said, in an opinion filed in the case by Dec. Dig. 1186.] the learned trial judge, as a part of his judg- Appeal from Criminal Court, , Hamilton ment, that it is unjust to the merchants of County; S. D. McReynolds, Judge. Athens that Chattanooga merchants should Max Lauterbach was convicted of "unlawbe permitted to sell within their territory fully, feloniously, and recklessly" driving an without obtaining a merchant's license, and auto upon John D. White, and thereby causthus paying taxes similar to those of such ing his death, and he appeals. Affirmed. merchants of Athens. This is a political

Lewis Shepherd and J. H. Daly, both of question for the consideration of the Legisla

Chattanooga, for appellant. The Assistant ture. Our duty is only to determine whether, under the laws as they now exist, the Attorney General, for the State. plaintiff in error is liable to the tax as a

NEIL, C. J. Plaintiff in error was indictmerchant. We think it very clear that, under the facts stated, he was not a merchant. ed in the criminal court of Hamilton county,

for “unlawfully, feloniously, and recklessly” No effort was made to reach H. Schwartz & Sons, or tax them as merchants doing busi- driving an automobile upon John D. White, ness in Athens; therefore no question aris- and thereby causing his death. es on that subject in the present case.

"At the time," continues the indictment, "said

Max Lauterbach was driving said automobile On the grounds stated the judgment of the along St. Elmo avenue, a public thoroughfare, trial court must be reversed, and judgment at a rate of speed in excess of 20 miles an entered here in favor of the plaintiff for the hour, and in disregard of the presence of said

John D. White. Whereby the grand jurors preamount paid, and costs.

sent that the said Max Lauterbach has committed involuntary manslaughter," etc.

He was convicted and sentenced to an in

determinate period of from one to five years LAUTERBACH V. STATE.

in the state penitentiary. He has appealed (Supreme Court of Tennessee. Oct. 2, 1915.) | to this court and assigned errors. 1. HOMICIDE O 68–INTENT-UNLAWFUL ACT: The weight of the evidence shows that, on -NEGLIGENCE-PRESUMPTION.

the occasion referred to, the plaintiff in erWhere defendant, while driving an automobile in excess of 20 miles per hour. in violation ror was driving his automobile at the rate of of Pub. Acts 1905, c. 173, killed a child who ran from 25 to 40 miles an hour, as estimated by out in front of the automobile, he was guilty the various witnesses who testified.

testified. The

an NEIL, C. J.

Tenn.)

STUDER V. ROBERTS

131

weight of the evidence further shows that, 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 "The court gives you that instruction, gentleaway just as the automobile was approach- men of the jury, and further states to you this ing, ran in front of it, and was killed.

proposition again that if the reckless running

of the machine caused the death of this child, Our act of 1905, chapter 173, provides :

then he is guilty; if it did not, then he is not “That no automobile shall be run or driven guilty.” upon any road, street, highway, or other public thoroughfare at a rate of speed in excess

From what has been already said, it is apof twenty miles per hour."

parent that there is no error in the foregoSection 6 of the same act makes the viola- ing of which the plaintiff in error can comtion of any of the provisions thereof a mis- plain. In our judgment the instruction, as demeanor punishable by a fine of not less requested, should not have been given at all. than $25, nor more than $100. St. Elmo [4, 5] There were certain improper stateavenue is a much traveled street, in the town ments made by the district attorney general of St. Elmo, in Hamilton county.

in his address to the jury, to the effect that [1] It is insisted for plaintiff in error that, if anybody should run over a six years old under the facts stated, his conviction was er- child of his, he would take a cannon and roneous. We do not think so. His violation shoot him. On objection being made by counof the statute by running in excess of the sel for plaintiff in error, the attorney generspeed limit there prescribed was negligence. al said that he knew that it was against the One who kills another in the act of commit- law to do such a thing, but he would do it. ting such negligence is guilty of felonious These were very improper statements, and homicide. State v. Campbell, 82 Conn. 671, should have been rebuked by the trial judge. 74 Atl. 927, 135 Am. St. Rep. 293, 18 Ann. We do not think, however, there should be a Cas. 236; State v. Goetz, 83 Conn. 437, 76 reversal on this ground. The conviction Atl. 1000, 30 L. R. A. (N. S.) 459; Schultz v. was thoroughly grounded on the evidence, State, 89 Neb. 34, 130 N. W. 972, 33 L. R. A. and we do not think that these improper (N. S.) 403, Ann. Cas. 1912C, 495. And the statements made by the law officer of the rule is general at common law that one who state influenced the verdict. This being true, 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

STUDER V. ROBERTS. performance of an unlawful act must take

(Supreme Court of Tennessee. Oct. 2, 1915.) the criminal consequences of whatever happens to third persons as a result of that act. PROCESS Om 6_SUMMONS-AMENDMENT-STAT

UTES. It was his duty to anticipate that he might

Under Shannon's Code, $ 4495, providing encounter, not only grown persons, but even that new plaintiffs or defendants may be added little children, or even people who were af- to the suit by plaintiff upon supplemental proflicted with blindness or deafness. One who cess taken out and served, and section 4589, disobeys the statutory rule as to speed is court may strike out and insert in the writ or

included in the same act, providing that the acting in defiance of law, and must be held pleadings the names of others as plaintiffs or to have anticipated the possibility of any in- defendants, process to bring in defendant after jury caused by his recklessness.

an amendment substituting plaintiff as admin

istrator, instead of plaintiff in his own name, [3] The little child was too young to be was not required, and a notification by the guilty of contributory negligence; but, even court's order, in place of formal process, was if it had been a person who had arrived at sufficient. years of discretion, and he had committed an [Ed. Note. For other cases, see Process, Cent. act similar to that of the child, the plaintiff Dig. $ 5; Dec. Dig. Ouw6.] in error would not have been free of crim

Certiorari to Court of Civil Appeals. inal liability, since the rule of contributory

Suit by W. H. Roberts, administrator, negligence does not apply in criminal cases against Otto Studer. From a judgment of State v. Campbell, supra; Reg. v. Longbot- the Court of Civil Appeals, affirming a judgtom, 3 Cox C. C. (Eng.) 439; Reg. v. Kew, 12 ment of the circuit court for Hamilton counCox C. C. (Eng.) 335; State v. Moore, 129 ty for plaintiff, defendant brings certiorari. Iowa, 514, 106 N. W. 16, and other cases Affirmed. cited in note to Schultz v. State, Ann. Cas. 1912C, 501 et seq.

J. H. Early, of Chattanooga, for plaintiff. An instruction was offered, in the trial Sizer, Chambliss & Chambliss, of Chattacourt, to the effect that if the jury should nooga, for defendant.

WILLIAMS, J. This suit was brought by 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 The question was directly passed upon, in his daughter, Bessie Roberts, due to the care a case arising in this state, by the United lessness of Studer in the operation of an au- States Circuit Court of Appeals of the Sixth tomobile.

Circuit in the case of Person v. Fidelity, etc., Thereafter Roberts moved for and was Co., 92 Fed. 965, 35 C. C. A. 117 (reversing granted leave to amend the writ or summons [C. C.] 84 Fed. 759), where it was held that and the declaration so as to add after his the amendment by substitution, as in the inname the words, “as administrator of the stant case, was permissible under section estate of Bessie Roberts, deceased."

4589, and effective. Thereupon Studer filed his plea in abate- The defendant was already before the ment setting forth that since the amendment court and cognizant of the amendment. In of the suit and the substitution of W. H. respect of an addition of a new party defendRoberts, administrator, for the original plain ant at the instance of a plaintiff, there is tiff, he had not been served with process; room for the application of the words of sec which plea was stricken by the court on mo- tion 4495, “upon supplemental process taken tion of the plaintiff below.

out and served," without a conflict between A plea in bar of “not guilty" was then the two sections thus drawn from the same filed, and the trial was proceeded with. act; and these words are not to be deemed

The Court of Civil Appeals sustained this to prescribe a requirement as to the notificaruling on the plea in abatement and affirmed tion of a defendant in such circumstance of the judgment below.

a change, by substitution, in the plaintiff who The contention of Studer is that process to may be prosecuting the cause of action. The bring him in was required by Code (Shannon) notification by the court's order in the cir$ 4495, which is as follows:

cumstances served in lieu of a notification by "At any time before trial, new plaintiffs or formal process. defendants may be added to the suit by the Finding no reversible error on this or other plaintiff, upon supplemental process taken out points, the judgment of the Court of Civil and served, and subject to such terms in regard to costs as the court may impose.”

Appeals is affirmed. 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

TURNER v. TURNER et al. of either plaintiffs or defendants, so as to have the proper parties before the court. (Supreme Court of Tennessee. Oct. 2, 1915.) Both of the above provisions appear in the 1. LIFE ESTATES On 25 LESSEES OF LIFE same legislative act, from which they were

TENANT,RIGHTS OF.

Under Shannon's Code, ş 4184, providing brought forward into the Code. Acts 1851- that, where a life tenant shall lease the estate 52, c. 152, 8 6.

and die before expiration of the lease the rent In Flatley v. Railroad, 9 Heisk. (56 Tenn.) may be apportioned between his representative

and the remainderman, a life tenant cannot 230, it was said that previous to such legisla- create a lease on land which will extend beyond tive enactment the result of such a mistake the life estate, the remainderman not joining; as to the party plaintiff would have been to for the remainderman is entitled to share in compel an abandonment of the action, but the rental sum pro tanto under the statute or to

disaffirm. that this was obviated by the provisions be

[Ed. Note.--For other cases, see Life Estates, fore referred to, which allowed the name of Cent, Dig. $ 47; Dec. Dig. On 25.] a new plaintiff to be substituted. Judge Mc-2. LIFE ESTATES O 25 – LEASES BY LIFE Farland said:

TENANT-DISAFFIRMANCE BY REMAINDER“The defendant being in court for a particular

MAN.

Where, after the death of a life tenant, the cause of action, it is not required that the expense and delay shall be incurred of new pro- the land and compensation from lessees for use,

remainderman sought to recover possession of cess.

there was no ratification of the lease within In Love v. Railroad, 108 Tenn. 120, 65 s. Shannon's Code, s 4184, authorizing an apporW. 475, 55 L. R. A. 471, this language was

tionment of rent.

[Ed. Note.-For other cases, see Life Estates, quoted with approval.

Cent. Dig. 8 47; Dec. Dig. Om 25.] Counsel for Studer insist that what was

3. LIFE ESTATES O 25 "EMBLEMENTS" said in these two cases was obiter, since the

RIGHT TO. question involved in each was whether the Where a life tenant, having leased the amendment by way of substitution of a par- premises, died, and the remainderman did not ty plaintiff related to the date of the original recognize the lease, the lessee of the life tenant

was entitled to the emblements, which are the commencement of the suit in respect of the crops of grain growing yearly, but requiring running of the statute of limitation; and, an outlay of labor or industry, without payment further, that the court in no reported deci- of any compensation for use of the land in harsion has passed upon the question when Phrases, First and Second Series, Emblements).

vesting the emblements (citing Words and raised, as here, by a plea in abatement.

[Ed. Note.-For other cases, see Life Estates, This may be true, but we are of opinion | Cent. Dig. § 47; Dec. Dig. Om 25.]

Tenn.)

TURNER v. TURNER

133

Certiorari to Court of Civil Appeals.

contrary is true. The complainant did not Action by Reuben S. Turner against G. S. recognize the contract of rental as one Turner and others. From a judgment for validly made by or under the authority of defendants, plaintiff appealed to the Court the life tenant, nor the right of the lessee to of Civil Appeals, which rendered judgment remain in possession thereunder accounting in his favor, and defendants bring certiorari. in part to the personal representative of the Judgment of the Court of Civil Appeals re- life tenant. versed, and that of the lower court affirmed. The above-quoted statute was not intended

Simerly & Simerly, of Newport, for plain- to put it within the power of a life tenant to tiff. Ailor & Carty, of Newport, for defend- create a lease upon the land which would exants.

tend beyond the date of the falling in of the

life estate, the remainderman not joining. WILLIAMS, J. This is an action of un

This was held in the case of Collins V. lawful detainer and to recover rent.

Crownover (Ch. App.) 57 S. W. 357, in an The mother of complainant was the life opinion by the present Chief Justice, while tenant of a tract of land which was leased on the bench of that court, which ruling was by her authority to defendants for the year

affirmed by this court. 1912. She died on June 2, 1912, and the

At common law the lease contract of a bill was filed shortly thereafter by complain-life tenant terminated at his death. Arnold ant, who was the remainderman.

v. Hodges, supra; Collins V. Crownover, The defendants, who are the lessees of supra; Hoagland v. Crum, 113 Ill. 365, 55 the tenant for life, had sowed the land to Am. Rep. 424; Carman v. Mosier, 105 Iowa, corn, beans, and potatoes prior to June 20, 367, 75 N. W. 323. and in their answer they asserted their right

The purpose of the act of 1877 was to to emblements.

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.

over, supra. The Court of Civil Appeals treated the

[3] What, then, were the rights of the case as one where complainant had recogniz- respective parties, on the basis of the statute ed the right of the lessee to the premises, un- not being applicable? der the life tenant's contract, thus making

The lessee of the life tenant clearly was applicable the provisions of section 4184 of entitled to emblements. 24 Cyc. 1070. Coke Shannon's Code (Acts 1877, c. 159) which is on Littleton states the rule broadly: as follows:

"So, therefore, if tenant for life soweth the “Where a tenant for life of real estate shall ground and dieth, his executors shall have the create a lease out of his said estate for one or termined by the act of God; and the same law,

corn, for that his estate was uncertain and demore years, and shall die before the expiration is of the lessee for years of the tenant for life.” 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 112 N. W. 570, 11 L. R. A. (N. S.) 688, and

See, also, Edghill v. Mankey, 79 Neb. 347, tenant for life may recover of the lessee, pro rata, according to the contract, and for the time note. said lessee had the use of the property until Emblements may be defined to be such the death of said tenant for life."

crops of grain, roots, and the like as grow That court, reversing the chancellor, ren- yearly, not spontaneously, but by reason of dered a decree in behalf of complainant for an outlay of labor or industry in the sowing rents in accordance with the prayer of the or planting in one part of the year, the recbill. A review of its action is sought by ompense for which is to be the crop maturwrit of certiorari on the question of rents ; | ing in the later part of the same year. Words the question of possession having been dis- and Phrases, First Series, 2359; Id., Second posed of by an agreed order in the lower Series, 253. court.

The right to take emblements depends up[1, 2] It was competent for the complain on the fact of sowing or planting by the ant, as remainderman, to recognize or ratify life tenant or lessee, and does not attach by that lease contract, and to thus share in the reason merely of a preparation of the soil rental sum pro tanto under the statute, or for planting. Bradley V. Bailey, 56 Conn. to disaffirm. Arnold v. Hodges, 10 Humph. 374, 15 Atl. 746, 1 L. R. A. 427, 7 Am. St. (29 Tenn.) 40. But we fail to see how in an Rep. 316; Collins v. Crownover, supra. effort to dispossess the subtenant and to Where, as here, the life tenant makes a recover for past use and occupation in his lease and dies before the expiration of the own right there was evidenced the ratifica- term, the lessee, if he has sown the land fructus industriales, is entitled to emble- and that the defendants acted from ill will, and ments. The doctrine is said to rest partly on not by reason of business rivalry or competithe idea of compensation, but chiefly upon murrable, the facts showing a cause of action,

Held, that the declaration was not dethe policy of encouraging agriculture by as- even though the act itself was lawful, if the suring the fruits of his labor to one who cul- defendant was actuated by malice and destroyed tivates soil thus held by uncertain tenure. the plaintiff's business without reasonable adThe doctrine allows the life tenant or his vantage to himself, since every person has the

right to conduct a lawful business and to have lessee the right of ingress and egress for that right enforced or the wrong redressed if the cultivation of the crop if growing, for the right is infringed upon. its preservation, and for its removal at ma- Dis. § 33; Dec. Dig. @ww26.)

[Ed. Note. For other cases, see Torts, Cent. turity. The record does not disclose that the lessee 2. TORTS O10INJURY TO BUSINESS.

In an action for wrongful injury to plaindid more than exercise this right.

tiff's business, the question of whether the acts Is the remainderman, who disaffirms the complained of were within the rights of the lease contract made by the life tenant, en- defendant as being in the due course of comtitled to recover rent or compensation for solely by malice and unjustifiable, must be de

petition for his own advantage, or actuated such qualified use made of his land? This termined upon the facts in each case, and no appears to be a problem on which the au- rule can be laid down for its determination. thorities differ. Plowden at an early day

[Ed. Note.-For other cases, see Torts, Cent. raised the question in Queries appended to Dig. $ 10; Dec. Dig. Om 10.) Plowden's Reports, p. 239, and inclines to the 3. TORTS 4—"MALICIOUS” ACTJUSTIFI.

CATION, view that the remainderman would be. Wil

A "malicious" act is one injurious to anliams, in his work on Executors, and Wash-other, intentional, and without legal justificaburn on Real Property, raise the question, tion, and is unlawful and actionable, but if an and refer to Plowden, but do not themselves act, otherwise lawful, has a reasonable tendency

to promote ends advantageous to the doer, malventure an answer. Such a claim on the ice in the doing does not bring it within the part of the remainderman is not well found- rule. ed, in the opinion of Redfield in 3 Redf. [Ed. Note.-For other cases, see Torts, Cent. Wills, 155, par. 5, and of Pingrey in 1 Pin- Dig. $ 4; Dec. Dig. Cm4. grey, Real Prop. $ 308. We do not find any First and Second Series, Malicious.]

For other definitions, see Words and Phrases, adjudication of the point by the courts. It would seem that the latter view best com- Certiorari to Court of Civil Appeals. ports with the idea of compensation to the Action by E. J. Hutton against H. E. Watlessee that underlies the doctrine of emble ters and others. Demurrer to the petition ments. It is not apparent that he would be was sustained, and on appeal to the Court encouraged to enter and cultivate under the of Civil Appeals that judgment was reversed, uncertain tenure of a tenant for life if he be and defendants bring certiorari. Affirmed. held subject to be called to pay the remain

L. E. Holladay, of Dresden, for appellants. derman for the qualified use a sum that is A. B. Adams, of Martin, and R. E. Maiden, undetermined and indefinite as to amount.

of Dresden, for appellee. However, this question does not stand for solution on the record. The complainant did not sue to recover for any such qualified tion are, in substance, as follows:

NEIL, C. J. The averments of the declarause, nor did he adduce any proof as to the

One of the defendants, the Hall-Moody Invalue of such a use.

In our view, the special chancellor, in dis- stitute, is a chartered institution of learning allowing rents as such, reached a correct at Martin, Tenn. Defendant Watters is its result, and the Court of Civil Appeals erred president, and the 10 other defendants are in not so ruling. Reversed. Decree here af- its “directors, trustees, teachers, and advis

ors." The school has a large out of town firming the decree of the chancery court; all costs to be paid by complainant.

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 busiHUTTON v. WATTERS et al.

ness of keeping boarders. In June, 1910, (Supreme Court of Tennessee. Sept. 29, 1915.) she opened a business of the kind in Martin. 1. TORTS Om 26-INJURY TO BUSINESSLIA- During that year one James Wilson became BILITY.

one of her customers. Some students did Plaintiff's petition alleged that she op

the same. erated a boarding house near a school of which

Defendants offered no objection 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,

Because of this then attempted to, and did, destroy the plain- miss Wilson. She refused. 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,

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