Where a person obtained a loan of money by falsely representing that he was the owner of three saloons, it was held that he was guilty of obtaining money by false pretenses, even though he actually owned one saloon, and the fact that he thought the other saloons belonged to him by reason of their being his wife's property, would not exonerate him. Com. v. Lundberg, 18 Phila. (Pa.) 482, 43 Leg. Int. 260.

5. STATEMENT IN WRITING CONCERNING
FINANCIAL ABILITY.

Under statutes making it a crime to obtain credit by means of a false statement in writing concerning one's financial ability, a person may be convicted where he obtains a loan of money by means of a false statement in writing concerning his financial ability. Berkenfield v. People, 191 Ill. 272, 61 N. E. 96; Lucas v. People, 75 Ill. App. 662; People v. Aronson, 156 N. Y. S. 396. Thus, where a husband discounted a note indorsed by his wife, by means of a false statement from the wife concerning her financial ability, it was held that both the husband and the wife were guilty of the statutory crime of obtaining property by use of a false statement and that they could have been convicted of larceny in obtaining money by means of false pretenses. People v. Aronson, supra, wherein the court said: "The defendant's counsel claims the section cannot apply to Harry Aronson, as he made no false statement regarding his own liability, but that of another; second, that it cannot apply to Ida Aronson, as she received no money benefit. Taken apart, this section reads: 'Who shall knowingly cause to be made any false statement, in writing, with intent that it shall be relied upon respecting the financial condition of any other person for whom he is acting, for the purpose of procuring a loan or discount of a promissory note for the benefit of himself, is guilty of a misdemeanor.' The defendant Harry Aronson is directly within this provision, as in presenting the statement of Ida Aronson to the bank he was acting for her, and in consequence received the money. As to Ida Aronson, the section would read: 'Any person who shall make any false statement, in writing, with intent that it shall be relied upon respecting the financial condition of herself for the purpose of procuring the discount of a promissory note, for the benefit of herself, is guilty of a misdemeanor.' 'Benefit,' as used in this section, does not mean that the person must necessarily receive the money, for it includes credit extended to an indorser upon the strength of his statement. An indorser receives benefit from the bank when, in reliance upon his signature and upon his financial statement,

the bank extends credit to him by advancing money to another. An indorsement virtually means the giving of the money by the bank to the indorser, who, in turn, pays it over to the maker. By a short cut and means of credit and bookkeeping, the actual money is paid to the maker, instead of indirectly through the indorser. Thus, the indorser reIceives the benefit."

A member of a firm has been held to be guilty of obtaining credit by means of a false written statement concerning his financial ability, where he obtained a loan of money to the firm by means of a false written statement concerning the financial ability of the firm. Berkenfield v. People, 191 Ill. 272, 61 N. E. 96.

However, it has been said that where a person secured the rediscount of a note by means of a false statement concerning the maker's financial ability, there could be no conviction for obtaining money by false pretenses for the reason that the money had been given and the credit obtained prior to the making of the false representations. Opinion of Brooke, J., in People v. Johnson (Mich.) 156 N. W. 449.

6. STATEMENT CONCERNING SUPERNATURAL POWERS.

Where an alleged seer induced a woman to loan money to him by falsely representing that it was necessary to keep others from getting it, it was held that he was rightly convicted of obtaining money by false pretenses. Clarke v. People, 53 Colo. 214, 125

Pac. 113.

7. STATEMENT CONCERNING USE TO BE MADE OF LOAN.

Under the rule that the false pretenses must relate to a past or existing fact, and that the crime is not committed where the inducement is a promise to perform some act in the future, a person is not guilty of the crime of obtaining money by false pretenses where he obtains a loan of money solely by means of false pretenses concerning the use to be made of the money. Reg. v. Lee, 9 Cox C. C. (Eng.) 304; L. & C. 309, 8 L. T. N. S. 437, 11 W. R. 761; Reg. v. Woodman, 14 Cox C. C. (Eng.) 179, 28 Moak 561; Com. v. Lundberg, 18 Phila. 482, 43 Leg. Int. 260. Thus it has been held that a person was not guilty of obtaining money by false pretenses where the false pretense relied on was the statement that the loan was to be used to pay rent. Reg. v. Lee, 9 Cox C. C. (Eng.) 304, L. & C. 309, 8 L. T. N. S. 437, 11 W. R. 761. And it has been held that a person was not guilty of obtaining money by false pretenses where the facts showed that he obtained the loan by the statement that he in

tended to open a public house. Reg. v. Woodman, 14 Cox C. C. (Eng.) 179, 28 Moak 561.

However, where a loan of money is obtained by means of a false statement concerning an existing or past fact, the fact that there is also coupled with such a false statement, a false statement concerning the use the borrower intends to make of the loan, does not prevent a conviction for obtaining money by false pretenses. Reg. v. West, 8 Cox C. C. (Eng.) 12, Dears & B. 575, 27 L. J. M. C. 227, 4 Jur. (N. S.) 514, 6 W. R. 506; State v. Nichols, Houst Crim. Cas. (Del.) 114; State v. Montgomery, 56 Ia. 195, 9 N. W. 120. See also Smith v. State, 116 Ga. 587, 42 S. E. 766; State v. Fooks, 65 Ia. 196, 452, 21 N. W. 561, 773. Thus, where a borrower falsely stated that he owned certain goods and wanted the loan to pay freight, he was held to be guilty of obtaining money by false pretenses. State v. Montgomery, 56 Ia. 195, 9 N. W. 120. And a person has been held to be guilty of obtaining money by false pretenses, where he obtained a loan of money by the false statement that he had bought certain skins, and would sell them to the prosecutor. Reg. v. West, 8 Cox C. C. (Eng.) 12, Dears & B. 575, 27 L. J. M. C. 227, 4 Jur. (N. S.) 514, 6 W. R. 506.

It has been held that a false representation by a person that he wants the loan in order to make a loan to another, imports a false representation as to an existing fact. State v. Nichols, Houst Crim. Cas. (Del.) 114.

8. STATEMENT OF INTENTION TO WORK OUT LOAN.

Under the rule that the false pretenses must relate to a past or existing fact, it has been held that a person cannot be convicted of being a common cheat and swindler, by reason of the fact that he obtains a loan of money by means of a promise to work out the loan, and later refuses to do so. Ryan v. State, 45 Ga. 128.

9. STATEMENT BY BANK OFFICER TO OBTAIN DEPOSIT.

Where an official of a bank obtains a deposit of money by means of false statements concerning the solvency of the bank, he may be convicted of the crime of obtaining money by false pretenses. Rex v. Carpenter, 22 Cox C. C. (Eng.) 618, 76 J. P. 158; Com. v. Schwartz, 92 Ky. 510, 18 S. W. 775, 36 Am: St. Rep. 609; Com. v. Wallace, 114 Pa. St. 410, 6 Atl. 685, 60 Am. Rep. 353.

Carry Disabled Person. Any person is entitled to be received as a passenger on payment of fare, notwithstanding a seeming incapacity on his part to take care of himself, if, in fact, he is competent to travel alone without requiring other care than that which the law requires a carrier to bestow on all persons alike. The disability which will disentitle a person to transportation may be mental or physical, and in respect to physical disability the carrier is under no obligation to receive as a passenger one who, without an attendant, is unable because of extreme age or tender years to care for himself, and the same test applies as to other physical disabilities.

[See note at end of this case.]

Same.

A man about 26 years of age, who has always had to walk with two crutches, but who for 10 years has continuously traveled alone and unattended in trains, street cars, etc., and who only requires ordinary care, cannot be excluded from a passenger train on the ground of his physical disabilities.

[See note at end of this case.]

Same.

Acts 1875, c. 130 (Shannon's Code, § 3046), abrogating the common-law rule as to rights of action for exclusion from public conveyances, and declaring that no carrier of passengers need carry or admit any person whom it chose not to, was abrogated by Acts 1897, c. 10, § 14, declaring all corporations, etc., operating railroads to be "common carriers," which term depends upon whether the carrier may determine who he will carry or whether he is bound to carry all alike, and which, under Acts 1907, c. 433, declaring that any incorporated interurban railroad company shall have the same powers and privileges as railroad companies, subject to the same duties and obligations, includes an interurban street railway company. [See note at end of this case.] Enforcement of Right to Carriage Injunction.

A complaint alleging that a common carrier's refusal to accept complainant was a persecution of complainant for having brought a suit for damages against it and an attempted intimidation shows a palpable abuse of a public franchise, which a court of equity will enjoin.

Same.

A complaint alleging that a common carrier had wrongfully refused to accept complain

ant as a passenger and threatened to continue such wrongful act sets out a right to relief by injunction, on the ground that a single action is a more adequate remedy than an action or actions at law for damages.

Appeal from Chancery Court, Davidson county: ALLISON, Judge.

Action by Woodall Hogan, plaintiff, against Nashville Interurban Company, defendant. Judgment for defendant. Plaintiff appeals. The facts are stated in the opinion. REVERSED.

Fitzgerald Hall for appellant. Pitts & McConnico for appellee.

[246] WILLIAMS, J.-This case stands for trial on bill of complaint and a demurrer thereto; the appeal being that of complainant, Hogan, from a decree of the chancery court of Davidson county sustaining the demurrer.

The complainant in his bill alleges that he is about twenty-six years of age, and resides near the city of Nashville; that he is a student and instructor in Vanderbilt University, in that city, and has been accustomed to use the cars of the defendant company almost daily since the line of that company was constructed for transportation into the city; that he has since infancy been lame as a result of infantile paralysis, and has been forced to walk ever since with two crutches; that for the last ten years he has continually traveled alone and unattended, riding trains, street cars, interurban [247] cars, and goes everywhere a sound and healthy man can go; that in the use of defendant company's cars he was never injured but once, and that then his injury was due to the gross negligence of the servants of defendant; that in so riding he has never caused any trouble, or asked or received any assistance; that he "acts as other passengers, and has been treated as suck;" that when ordinary care is exercised "there is no more danger of injuring him than any other person;" that, following the injury above referred to, complainant brought suit against defendant; that thereafter rumors reached him that the defendant was about to withdraw from him the right of passage on its cars; that yet later a communication was received by him from the company's general manager, as follows:

"Nashville, Tenn., April 23, 1914. : "Mr. Woodall Hogan, R. F. D. No. 2, Brentwood, Tenn.-Dear Sir: We regret to notify you that on and after May 1, 1914, we will deeline to convey you as a passenger on our line, unless you are at all times accompanied by an attendant. Your physical infirmity is

of such a nature as to cause a continued

source of possible injury to yourself and as
a possible liability as against us. You are
also advised that our trainmen and ticket
agents will be notified not to receive you as
a passenger unless you are accompanied by
an attendant. We regret that conditions are
such as require [248] this action but deem
it necessary, as well for your protection as
for the protection of ourselves.
"Very truly yours,

"[Signed] Meade Frierson,
"General Manager."

The bill of complaint further recites: That on May 1, 1914, complainant, tendering the usual fare, demeaning himself properly and offering to comply with all the usual and necessary conditions to become a passenger, presented himself to defendant for carriage on its line, but was absolutely refused; that in his work he is compelled to go into Nashville every day, and that his only means of transportation is defendant's line; that defendant is a common carrier.

That the refusal to receive him as a passenger is a persecution of complainant for not dropping the above-mentioned suit and an attempted intimidation, with a view to forcing him to abandon his legal rights, and arbitrary and in violation of defendant's charter.

The demurrer interposed set out the following grounds:

(1) That the bill discloses such physical infirmity on the part of complainant as that it was not a part of defendant's duty at common law to receive him for passage.

(2) That by force of a valid statute defendant had a right to decline to carry complainant for any reason whatever deemed sufficient by it.

[249] (3) That there is no case made for resort to injunctive process; complainant having an ample remedy at law.

The chancellor sustained the several grounds of the demurrer.

The rule, broadly stated, is that any person desiring transportation shall be entitled to be received as a passenger on payment of the fare, notwithstanding a seeming incapacity on his part to take care of himself, if, in point of fact, he "is competent to travel alone without requiring other care than that which the law requires the carrier to bestow on all persons alike." Hutchinson on Carriers (3d ed.) section 966.

In the application of the rule to concrete instances the authorities are not in exact agreement, but the points of difference are

narrow ones.

'The disability claimed to disqualify may be mental or physical. Thus, while a common carrier may not lawfully refuse absolutely to carry persons who are insane, it may do so

where the proposing passenger is not properly attended or guarded. Owens v. Macon, etc. R. Co. 119 Ga. 230, 46 S. E. 87, 63 L.R.A. 946; Meyer v. St. Louis, etc. R. Co. 54 Fed. 116, 10 U. S. App. 677, 4 C. C. A. 221.

In respect to physical disability, the carrier is not under obligation to receive as a passenger a person who without an attendant is unable, because of extreme age or tender years, to care for himself; and the same test applies to other physical limitations. The carrier may [250] refuse to carry unless the applicant be in charge of one fit to serve as attendant.

The clearest and most comprehensive statement of the rules governing is that of the supreme court of Mississippi in a series of cases dealing with blind persons who offered themselves for passage. Blindness is by that court held to be prima facie a disqualification; that presumedly the affliction of blindness unfits a person for sale travel by railway, if unaccompanied; that a showing of experience or ability to travel alone on the part of the offerer brought to the knowledge of the railroad company's agent may serve as a basis of liability on the part of the carrier for a refusal to accept him.

That court, on a point pertinent to the case in hand, said:

"We are asked to hold that a regulation that no blind person whatever shall travel unaccompanied by an assistant, no matter how skillful or expert a traveler he may have been, or may be, and no matter how perfectly qualified in every other respect to travel on cars unaccompanied, is a reasonable rule. This cannot be sound. Each case must depend on its own facts, and the reasonableness of the refusal to sell the blind person a ticket must, on principle, depend, not on a universal, arbitrary, and undiscriminating rule like this one, but on the capacity to travel unaccompanied of the particular blind person.".

It was therefore held, where a blind person sued, and in his declaration averred that for several years he had [251] traveled on defendant company's cars in the transaction of current business, and had never given cause of complaint to any of its servants, and that no objection had been offered to his riding on the company's train before the date of the exclusion complained of, that this statement of his cause of action was not demurrable, the court holding that it was sufficiently shown that plaintiff was able to take care of himself as a passenger. Zachery v. Mobile, etc. R. Co. 74 Miss. 520, 21 So. 246, 36 L.R.A. 546, 60 Am. St. Rep. 529; Zachery v. Mobile, etc. R. Co. 75 Miss. 746, 23 So. 434, 41 L.R.A. 385, 65 Am. St. Rep. 617; Illinois Cent. R. Co. v. Smith, 85 Miss. 349, 37 So. 643, 70 L.R.A. 642, 107 Am. St. Rep. 293. And see, also, Illinois Central R. Co. v. Allen, 121 Ky. 138, 89 S. W. 150, 11 Ann. Cas. 970.

We have not been cited any case that deals with a disability claimed to exist because of lameness or infirmity of the two lower limbs, making the use of crutches necessary. But we think it clear that the reasoning in behalf of disqualification of such a person for acceptance must be less obvious than in the case of a blind person. It is a matter of common knowledge that, where a man is deprived of the use of his lower limbs, the enforced constant use of his arms increases their strength, enabling him, especially in the case of a youth, to handle himself with considerable facility and safety on crutches. Such persons are seldom attended, and seldom need to be. To deny the right to be so carried to such as complainant is shown to be by the bill of complaint would be to put an unwarranted handicap on [252] a class of men capable of being serviceable to society, and therefore on society itself, which the defendant company, if a common carrier, is under obligation to serve.

We readily decline to give assent to the contention of the railway company that, as a proposition of law, a man may be denied passage merely because fate has placed on him the necessity of using two crutches in locomotion; and we hold that the bill of complaint makes a case of improper exclusion of Hogan.

But it is insisted by the defendant company that it is not under the common-law duty of a common carrier in respect of the matter of accepting complainant as a passenger. This contention is based on a statute passed by the legislature of this State in 1875, doubtless to operate by way of a hedge against the enforcement of the "Civil Rights Bill" passed by the congress of the United States, which bill at that date had not been declared unconstitutional by the supreme court of the United States.

Acts 1875, ch. 130 (Shannon's Code, section 3046), is as follows:

"The rule of the common law giving a right of action to any person excluded from any hotel, or public means of transportation, or place of amusement, is hereby abrogated; and hereafter no keeper of any hotel, or public house, or carrier of passengers for hire, or conductors, drivers, or employees of such carrier or keeper, shall be bound, or under any obligation to entertain, carry, or admit any person whom he shall, for any reason [253] whatever, choose not to entertain, carry, or admit to his house, hotel, carriage, or means of transportation, or place of amusement; nor shall any right exist in favor of any such person so refused admission, but the right of such keepers of hotels and public houses, carriers of passengers, and keepers of places of amusement and their employees to control the access and admission or exclusion of persons to or from their public