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[4] For the railway company it is contend-14. CARRIERS 32(1)—CONNECTING CARRIERS ed that no negligence on its part is shown, -ACTIONS-ESTOPPEL, since the inspector or inspectors had a right on a provision in a bill of lading, limiting lia

A connecting carrier is not estopped to rely to assume that Morgan had passed to another bility to loss occurring on its own lines, to deengine, and would not again be at engine No. feat recovery on an unlawful contract made 815.

by its agent to pay such loss on interstate shipWe shall not go into a detailed discussion of this question of fact, or further than to 5. APPEAL AND ERROR Ow750(4) — Assign

MENT OF ERROR-SUFFICIENCY. say that the jury might have inferred that if An assignment, to the effect that the trial Morgan, standing at a place on the boiler court erred in not peremptorily instructing about the front of the smokestack, was not the jury is equivalent to an assignment that visible to the chief inspector at the time the there was no evidence to support the verdict. hood was pulled down, yet that one of the Certiorari to Court of Civil Appeals. three men, Jones, his assistant, or Morgan, Suit by Lewis & Adcock Company against might have been seen about the engine at the Southern Railway Company. Judgment work by the inspector or his assistant had for plaintiff, which was affirmed by the Court they been in the exercise of due care. The

of Civil Appeals, and defendant brings certiinspector in his testimony admits that it was crari. Reversed and dismissed. his duty to look out to see whether his work could be done in safety to others. The pres

Roscoe Word and J. M. Meek, both of ence of others at the front of the engine if Knoxville, for Railway Co. A. C. Grimm, of discovered might have caused more caution Knoxville, for Lewis & Adcock Co. on the part of the inspector and his assist

Opinion. ant, and prevented the happening of the accident.

GREEN, J. This suit was brought by [5] Morgan was guilty of contributory Lewis & Adcock to recover $150, the amount negligence, but under the terms of the act of damage claimed to have been suffered by that does not bar a recovery.

a carload of oats. The oats were shipped We are of opinion, therefore, that the Court from the Richter Grain Company in Cincinof Civil Appeals committed further error in nati, Ohio, to the plaintiffs below at Knoxruling that no negligence on the part of the ville, Tenn., on a uniform through bill of ladrailway company was shown.

ing. The car was routed over the CincinReverse the judgment of that court, and nati, New Orleans & Texas Pacific Railroad affirm the judgment of the circuit court. and the Southern Railway Company. Costs incident to the appeal are awarded ap- The proof showed clearly that the grain pellee Morgan.

was damaged prior to its delivery to the Southern Railway Company. This fact is not controverted.

The plaintiffs below introduced proof tendSOUTHERN RY. CO. v. LEWIS & ing to show that they had made a claim ADCOCK CO.

against the Southern Railway Company for (Supreme Court of Tennessee. Feb. 11, 1918.) damage to this shipment, and that an agent

of the Southern Railway Company had agreed 1. CARRIERS 32(2)-INTERSTATE-DISCRIM

to pay them for this damage $150. This was INATION-CARRIER'S LIABILITY.

An agreement by a carrier to pay damages, renied by the railway company. not occurring on its lines, to goods shipped The railway company also relied on a stipunder a bill of lading providing that no carrier ulation in the bill of lading as follows: shall be liable for loss other than on its own lines , is a discrimination against the uniformity injury not occurring on its own road, or its

"No carrier shall be liable for loss, damage or of responsibility required of carriers of inter- portion of the route, nor after said property state commerce, and is unenforceable.

has been delivered to the next carrier except as 2. CARRIERS Om 180(1) - BILLS OF LADING - such liability is, or may be imposed by law." LIMITING LIABILITY OF CONNECTING CAB

There was a judgment against the railway Carmack Amendment (Act Cong. Feb. 4, company for $150, the amount sued for, 1887, c. 104, $ 20, 24 Stat. 386, as amended by in the court below and this judgment was afAct Cong. June 29, 1906, c. 3591, & 7, pars. 11, 12, 34 Stat. 595 (U. S. Comp. St.

' 1916, $s firmed by the Court of Civil Appeals. A pe8604a, 8604aal), creating in initial carrier's tition for certiorari has been granted by this unity of responsibility for transportation to court and the case heard by us. destination, does not preclude limiting the re

[1] It may be conceded that there is suffisponsibility to shipper by a connecting carrier to damages on its own lines, and such limitation cient evidence in the record to sustain the is good at common law.

finding of the jury establishing the agreement 3. EVIDENCE 73–FILING BILL OF LADING between Lewis & Adcock and the claim agent WITH INTERSTATE COMMERCE COMMISSION- of the Southern Railway Company, whereby PRESUMPTION.

the railway company undertook to pay $150 There is a presumption that copies of forms of bills of lading in use by interstate carriers for the damage sustained by this carload or have been filed with the interstate Commerce oats. Commission.

Nevertheless it is contended by the railway

BIERS.

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

company that if such an agreement were, congressional legislation upon this subject made, it was illegal and beyond the power of was "that its prime object was to bring the carrier or any of its agents. We think about a uniform rule of responsibility as to this contention must be upheld.

interstate commerce and interstate commerce Recent decisions of the Supreme Court of bills of lading." the United States construing the Acts of Con- In Atchison, T. & S. F. R. Co. v. Robinson, gress declare that there must be uniformity supra, the court denied the power of a carin rates, uniformity in service, and uniform-rier to enter into a verbal contract for an ity of responsibility on the part of all carriers | interstate shipment different in terms from engaged in interstate commerce. The duties the contracts on file with the Commission. and responsibilities of such carriers are de- In Missouri, K. & T. R. Co. v. Ward, supra, fined in the contracts or bills of lading filed the court reannounced the rule laid down in with the Interstate Commerce Commission Georgia, F. & A. R. Co. v. Blish, and held and the Acts of Congress, and these duties that the parties could not waive the terms of and liabilities may not be varied either by the contract under which shipment was act of the carrier or the shipper, or indeed made pursuant to the federal act. by state laws. Missouri, K. & T. R. Co. v.

As heretofore seen, the contract in this Ward, 244 U. S. 383, 37 Sup. Ct. 617, 61 L. case provided that no carrier should be liaEd. 1213; Georgia, F. & A. R. Co. v. Blish ble for loss, damage, or injury not occurring Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 on its own road, or its portion of the route, L. Ed. 918; Southern R. Co. v. Prescott, 240 except as such liability is, or may be, imU. S. 632, 36 Sup. Ct. 469, 60 L. Ed. 836; At- posed by law. chison, T. & S. F. R. Co. v. Robinson, 233 U.

[2] The Carmack Amendment was enactS. 173, 34 Sup. Ct. 556, 58 L. Ed. 901, Atchi- ed to create in the initial carrier unity of son, T. & S. F. R. Co. v. Harold, 241 U. S. 371, responsibility for the transportation to its 36 Sup. Ct. 665, 60 L. Ed. 1030; Chicago & A.

destination. Atlantic Coast Line R. Co. v. R. Co. v. Kirby, 225 U. S. 155, 32 Sup. Ct. 648, Riverside Mills, 219 U. S. 186, 31 Sup. Ct. 56 L. Ed. 1033, Ann. Cas. 1914A, 501.

164, 55 L Ed. 167, 31 L. R. A. (N. S.) 7; In Chicago & A. R. Co. v. Kirby, supra, the Missouri, K. & T. R. Co. v. Ward, 244 Ú. S. carrier undertook to make a contract with 383, 37 Sup. Ct. 617, 61 L. Ed. 1213, and the consignor for an expedited shipment of

cases cited.

The Carmack Amendment does not pre horses from a point in Illinois to New York

clude City. This was a special contract, no form of

a limitation of responsibility to a which was on file with the Interstate Com- shipper by a connecting carrier for damage merce Commission, and by the terms of not occurring on its own line. Such limitawhich a preference or advantage was given

tion is good at common law. to the shipper. Such contract was held to be lading here exhibited has been duly filed

[3] The presumption is that the bill of illegal. In Georgia, F. & A. R. Co. v. Blish Milling Louisville & Nashville R. Co. v. Hobbs, 136

with the Interstate Commerce Commission. Co., supra, in discussing a provision of an in- Tenn. 512, 190 S. W. 461. terstate bill of lading, which it was urged the

We must conclude, therefore, under the carrier had waived, the court said:

authorities heretofore cited, that the reme“But the parties could not waive the terms of the contract under which the shipment was dies of the shipper are confined to those made pursuant to the federal act: nor could the prescribed in the bill of lading or carrier, by its conduct. give the shipper the tract. The shipper can demand no right to ignore these terms which were applica-than he is entitled to under such contract, ble to that conduct and hold the carrier to a different responsibility from that fixed by the

nor can the carrier voluntarily assume any agreement made under published tariffs and reg- additional obligation in favor of a particular ulations. A different view would antagonize the shipper. plain policy of the act and open the door to

[4] The Court of Civil Appeals was of the very abuses at which the act was aimed.”

opinion that the defendant railway company In Southern Railway Co. v. Prescott, supra, was estopped to rely on this provision of the the court said:

contract in view of the fact that the plain“It is also clear that with respect to the serv- tiff's had, by reason of the alleged promise to ice governed by the federal statute the parties were not at liberty to alter the terms of the settle, probably lost their remedy against the service as fixed by the filed regulations. This carrier or party responsible for this damage. has repeatedly been held with respect to rates As we have seen, however, the cases hold (citing authorities), and the established principle that the carrier cannot waive the terms of applies equally to any stipulation attempting to alter the provisions as fixed by the published the contract, nor do we think any estoppel rules relating to any of the services within the could arise by reason of its conduct. purview of the act (citing authorities). This

Estoppel is founded in equity. It can nevis the plain purpose of the statute in order to shut the door to all contrivances in violation er be asserted to uphold fraud or wrong of of its provisions against preferences and dis- any character. 10 R. C. L. 690; 16 Cyc. 747. criminations."

Under the Acts of Congress it is unlawful In Atchison, T. & S. F. R. Co. v. Harold, for any shipper to receive any benefit or supra, the court said that the view pointed advantage to which all other shippers are out in the previous decisions with respect to not entitled at the hands of a carrier. An

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estoppel cannot be invoked to obtain for a Certiorari to Court of Civil Appeals. shipper an unlawful preference.

Petition for writ of certiorari by Ed D. [5] It is urged on behalf of Lewis & Ad-Connors against the City of Knoxville to recock that the question discussed has not view the action of the municipal authorities been properly presented for the considera- in removing him from the office of chief of potion of this court under our rules. It is lice. The petition was dismissed by circuit said that there is no assignment of error / court, and on appeal to the Court of Civil Aphere to the effect that there was no evidence peals reversed the judgment, whereupon the to sustain the judgment in the lower court. City brings certiorari. Judgment of Court

There is, however, an assignment of error of Civil Appeals affirmed in part, and in part in this court as follows:

reversed. "The Court of Civil Appeals was in error in holding that the circuit court was not in error

Chas. T. Cates, Jr., W. T. Kennerly, and in overruling defendant's motion made at the J. Pike Powers, Jr., all of Knoxville, for close of all the evidence to peremptorily in- City of Knoxville. L. D. Smith, John W. struct the jury to return a verdict in its favor." Green, and Reuben L. Cates, all of Knoxville,

An assignment to the effect that the trial for Ed D. Connors. court erred in not peremptorily instructing the jury is equivalent to an assignment of er

GREEN, J. This case is again before us. ror that there was no evidence to support It involves an attempt by Ed D. Connors, forthe verdict since under our practice there merly chief of police of the city of Knoxville, could be no peremptory instructions unless to review the action of the municipal authorthere was no evidence to the contrary.

ities in removing him from that office. Such a motion is sufficiently broad to cover

Connors filed a petition for certiorari althe questions made by the railway company leging that he was removed without any hearin this case.

Southern Ice Co. v. Black, 136 ing by the city council of Knoxville; that he Tenn. 401, 189 S. W. 861, Ann. Cas. 1917E, was entitled to a hearing under civil service 695; Railroad v. Bonham, 130 Tenn. 435, 171 provisions of the city's charter, and ho sought S. W. 79.

to have the proceedings removing him quashIt follows that the judgment of the lower ed on this petition to the circuit court of courts will be reversed, and the suit dis- Knox county. That court held that the petimissed.

tion did not lie, which action was affirmed by the Court of Civil Appeals, and the case came to this court at the September term,

1916. Conners v. City of Knoxville, 136 Tenn. CITY OF KNOXVILLE v. CONNORS.

428, 189 S. W. 870. (Supreme Court of Tennessee. Feb. 11, 1918.)

This court was of opinion that Connors was

entitled to a hearing; that his tenure of office 1. CERTIORARI ww 70(5) REVIEW

LAW OF Case.

was protected by the civil service provisions A former determination by the Supreme of the city's charter, and that common-law Court in the same proceedings that petitioner certiorari would lie to review the action of who was removed from the office of chief of the city council in removing Connors from ofpolice was a civil service employé entitled un-fice summarily. The case was remanded to der the charter of the municipality to have charges formulated and preferred against him, the circuit court, with directions to issue the and to a trial before removal, is conclusive in writ “to remove the proceeding from the insubsequent proceedings as the law of the case. ferior board for the purpose of revision, not 2. CERTIORARI 70(9) WRIT ISSUANCE for a trial de novo, but for review of the rec--DISCRETION.

ord to be certified from the inferior tribunal, While the issuance of a writ of certiorari is and for judgment of quashal or affirmance.” a matter within the discretion of the court, and a writ may be refused which would otherwise Conners v. City of Knoxville, supra. be issued where substantial justice has been The case accordingly went back, and an reached by an inferior tribunal, or where pub- answer was filed by the city of Knoxville and lic inconvenience or confusion would follow the writ, yet where the Supreme Court had found a large amount of proof taken, the greater that one removed from the office of chief of po- part of which was entirely beyond the scope lice of a city was entitled to certiorari to re- of the investigation that should have been view the removal, the contention that the court made to conform to the opinion of this court. in its discretion might decline to entertain the writ is foreclosed.

[1] The writ ordered to be issued by this

court was a common-law writ of certiorari, 3. CERTIORARI Ow70(9)_WRIT-SCOPE OF RE

not a statutory writ. The only question open Where it was found on writ of certiorari for investigation of the circuit judge was that removal of petitioner from the office of chief whether or not the city council had acted leof police was unauthorized because he was not accorded trial as required by the city's charter, gally in removing Connors. and charges were not preferred against him, the

We held on the former hearing that Conorder of removal should be quashed, but the nors was entitled under the charter of court is without jurisdiction to direct a rein- Knoxville to have a trial, and to have chargstatement of petitioner, for that would unduly extend the writ and grant relief beyond the es formulated and preferred against him, scope of the pleadings.

and could not be summarily removed. That For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

LIEF.

question was foreclosed by the former opinion that Connors had not been removed from ofof the court. The law of this case was declar-fice, but merely transferred as is again ared, and we will not consider it again.

gued. The matter of his incompetency or unThe circuit judge found that the proceed- worthiness was not brought to the attention ings against Connors were not had upon no. of the court. The case was presented on tice, and that he had no trial. This finding is questions of law indicated, and this court diabundantly sustained by the evidence. No rected the circuit judge to issue this writ of charges were filed against him, and no notice certiorari. that he would be tried was given him. He In other words, we had already exercised was told that he was to be removed, and he our discretion before this appeal to discretion was present at the meeting of the city council was made. The great weight of authority is when he was removed. It was never intend to the effect that when the writ of certiorari ed, though, to have a trial, for, as a matter of is once issued, the discretionary nature of fact, the majority of the commissioners the matter has passed. The Supreme Court thought that Connors was not within the civil of the United States has said: service clause of the charter.

"Although the granting of the writ of cerIt was also contended at the trial before tiorari rests in the discretion of the court, yet. the circuit judge that Connors was not re

after the writ has been granted, and the record moved from office, but was merely transfer- ing upon that record must be determined ac

certified in obedience to it, the questions arisred from one place to another in the same de- cording to fixed rules of law, and their determipartment. He was removed from the office nation is reviewable on error." Harris v. Barof chief of police at a salary of $125 per ber, 129 U. S. 366, 9 Sup. Ct. 314, 32 L. Ed. month and made market master at a salary of $90 per month. The testimony of the may To like effect, see People v. Brooklyn Assesor discloses that this action with reference to sors, 39 N. Y. 81; People v. Brooklyn Fire Connors was not intended as a transfer from Commissioners, 103 N. Y. 370, 8 N. E. 730; one place to another for the good of the serv- Farrington R. W. Power Co. v. Berkshire ice; on the contrary, it was thought desirable County Com’rs, 112 Mass. 206, 212; State to remove Connors from the office of chief of ex rel. Hamilton v. Guinotte, 156 Mo. 513, 57 police, but the other position appears to have S. W. 281, 50 L. R. A. 787. been given him merely through motives of

[3] Having found that the city council did sympathy.

not act legally in its removal of Connors, the Although reaching the conclusion that the trial judge should have quashed the proceedcity council acted illegally in removing Con- ings of that body. The Court of Civil Appeals nors in that he did not have a trial with char- so held, and its decree will be affirmed to ges preferred against him, and that he was

that extent. not transferred, but was actually removed,

The decree of the Court of Civil Appeals, within the prohibition of the civil service however, went further and undertook to orclause, the circuit judge thought inasmuch der a reinstatement of Connors into his office. as in his opinion Connors was a person un- This order was beyond the scope of the pleadsuitable for the office of chief of police, his ings. It unduly extended the function of the petition for certiorari should be dismissed. writ of certiorari. Judgment of this court

In this the circuit judge was in error, and will be that the proceedings of the city counthe Court of Civil Appeals properly so held. cil of Knoxville by which Connors was re

[2] It is true that the issuance of a writ of moved are void and such proceedings are certiorari is a matter within the discretion of quashed. His legal rights are certainly inthe court. A writ may be refused which dicated with sufficient clearness in the two would otherwise issue, where substantial opinions of this court. For the vindication justice has been reached by an inferior tribu- of these rights he must resort to appropriate

remedies. nal, or where public inconvenience or confu

We think the costs of the case were propersion would follow the writ. State v. Taxing District, 84 Tenn. (16 Lea) 240; May v. ly divided by the Court of Civil Appeals for

the reasons stated by that court. Campbell, 1 Tenn. (1 Overt.) 61; 5 R. C. L. p. 255.

The time for invoking the discretion of the court, however, in this case had passed when ALEXANDER v. VIRGINIA & S. W. RY. CO. the testimony reflecting on Connors was

(Supreme Court of Tennessee. Feb. 19, 1918.) brought out.

When this case was formerly heard, the 1. RAILROADS 398(2) SIGNALS SUFFI issuance of the writ of certiorari was opposed

CIENCY OF EVIDENCE. on the theory that Connors was not protected

The statement of a witness that the whistle

was not sounded "until it blew inside the corpoby the civil service provisions of the charter ration here" and of another that he lives 114 of Knoxville; that the writ would not lie in miles from Rogersville and 1 mile from the view of the fact that an appeal from the ac- spring, not giving relative location of each and tion of the city council to the circuit court of depot, does not locate city limits or establish

defendant's failure to comply with Thomp.-Shan. was provided; and it was further suggested | Code, 1574, subsec. 3, as to giving signals

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case.

before reaching and while passing through in- porated municipalities," reaffirming Webb corporated cities.

v. Railroad Co., 88 Tenn. 119, 12 S. W. 428. 2. EVIDENCE 25(2)—JUDICIAL NOTICE-IN

[2] It is said, however, that the court will CORPORATED CITIES.

While a court will take judicial notice of the take judicial notice of the fact that Rogersfact of incorporation of a city incorporated by ville is incorporated, and State v. Murstate law, it cannot take judicial notice of the freesboro, 11 Humph. 217; Coal Creek Co. v. location of the boundaries thereof.

East Tenn. Co., 105 Tenn. 563, 59 S. W. 634; Appeal from Circuit Court, Hawkins Coun-Frazier v. Railroad Co., 4 Pick. (88 Tenn.) ty; Dana Harmon, Judge.

138, 12 S. W. 537-are cited in support of the Suit by William Alexander, administrator, contention. These cases establish the propagainst the Virginia & Southwestern Railway osition that the court will take judicial Company. Judgment for defendant, and knowledge of the fact of incorporation, where plaintiff appeals. Affirmed.

such fact is evidenced by an act of the Leg

islature duly published, which, of course, Neighbors & Neighbors, of Chattanooga, the court judicially knows. But the fact of and Bowen & Thompson, of Rogersville, for incorporation is not a material inquiry in this William Alexander, Adm'r. J. 0. Phillips, The location of the boundaries of the of Rogersville, and Susong & Biddle, of corporation is the material matter here, and Greenville, for Virginia & S. W. Ry. Co. this the court will not know judicially. It

is essential, as a part of the plaintiff's case, LANSDEN, J. This suit was brought by that proof be offered to show that the deAlexander, administrator of Oliver Mitchell, fendant failed to comply with the statute by deceased, to recover damages for personal in- sounding the whistle or ringing the bell 1 juries resulting in the death of Mitchell up-mile from the boundary of the incorporated on the following facts:

town. This holding harmonizes the cases [1] The line of railroad of the defendant above cited, and meets the legislative intent company runs from Rogersville to Bulls in enacting subsection 3 of section 1574 of Gap. It is averred in the declaration that Thompson-Shannon's Code. Rogersville is an incorporated town, and it

There being no proof of the location of was the duty of the defendant to comply the boundary line of the municipality of with subsection 3 of section 1574 of Thomp- Rogersville, with reference to the scene of son-Shannon's Code, which is as follows:

the accident, the proof in the case of the fail"On approaching a city or town, the bell or whistle shall be sounded when the train is at ure of the defendant to sound the whistle the distance of one mile, and at short inter- and ring the bell, has no application, and vals till it reaches its depot or station; and cannot aid him any. on leaving a town or city, the bell or whistle

The other questions discussed by counshall be sounded when the train starts, and, at sel, while interesting and ably presented, do intervals till it has left the corporate limits."

not arise upon the record. The special re The question to be treated of in this opin- quests forming the basis of assignment of ion is whether the statutory provision above error in this court were properly declined quoted has application to this case. There by the trial judge because they do not emis no proof in the record of the location of brace an accurate statement of the law. Afthe corporate limits of the town of Rogerse firmed. ville, and there is no direct proof that Rogersville is an incorporated town. One witness says the whistle was not blown "until

ALLEN et al. V. HAYS et al. it blew inside the corporation here," and (Supreme Court of Tennessee. Feb. 11, 1918.) another witness says that deceased some- 1. BILLS AND Notes Em 196(2) PRESUMPtimes worked for the "cor) tion." Anoth TIONS-OWNERSHIP OF NOTE. er witness says that he lives 142 miles from payable to the order of the payee and not in

The possession by a third party of a note Rogersville and 1 mile from the spring. dorsed by him raises no presumption of ownerFrom this last statement the inference is ship, and no such presumption is created by sought to be made that the spring is one- Negotiable Instrument Law, g 49 (Thompson's

Shannon's Code, 8 3516a48), providing that a half mile from Rogersville. Manifestly, transfer for value without indorsement vests however, this inference is not warranted up- in the transferee such title as the transferor on the facts stated because the distance that had, and that the transferee acquires in addithe depot is from the spring would depend tion, the right to the transferor's indorsement,

as this contemplates the making of proof of the entirely upon the relative positions of the transfer. witness' home, the depot, and the spring, 2. GIFTS Om 47(1), 49(6) PRESUMPTIONSwhich are not shown in the proof. It is not

SUFFICIENCY OF EVIDENCE-GIFT OF NOTE. shown where the boundary line of the incor- death of the payee in the hands of one named as

Where proceeds of notes were found on the poration, if any, is located, with reference executor, and the notes were not indorsed by to the spring, the place of the accident. the payee when collected, the presumption is

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It was held in Railroad v. Collier, 104 that they were his property, and a son of the Tenn. 189, 54 S. W. 980, that the statute gift to the executor for his benefit, has the

executor, claiming ownership under an alleged under consideration "relates alone to incor- | burden of proof to overcome such presumption

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

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