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not for what cause, he is no longer a mem- the appellee that he should be properly and ber of the association. He is dropped, leav- skillfully treated by proper and skillful suring all that has been deducted from his geons and attendants. The proof does show wages in the hands of appellant's chief offi- that it retained of his wages a sum each cials. This is true of all the employés, and month for three or four years for the purall combined would be powerless to change pose of giving him treatment in its hospital the by-laws. This matter is completely with- in the event he should become sick or receive in the power of the eight directors, chief offi- an injury. This being true, it amounted to a cials of the appellant. In view of these facts, contract. At least, it was implied on the it is apparent why the court in the Gheen part of appellant that it would place in Case supra used the following language: charge of the hospital physicians and sur“The appellant is the very life of the associa- geons of reasonable skill and learning, and tion. Its funds, management, control, and that the sick and the injured should have reaservice are all furnished by appellant. In sonably proper and skillful treatment, and fact, the hospital association is the Illinois for a failure in this the appellee has a cause Central Railroad Company." Under that of action. In the case of Union Pacific R. Co. case, the judgment herein must be affirmed, V. Artist, 60 Fed. 365, 9 C. C. A, 14, 23 L. R. as the evidence is the same, unless the bare A. 582, the court said: “If one contracts to fact that since then the hospital association treat a patient in a hospital, or out of it, for has been incorporated changes the rule. To that matter, for any disease or injury, he unso hold is to recognize form, not substance. doubtedly becomes liable for any injury sufThe operatives of the railroad company have fered by the patient through the carelessness no option as to the retention by it of a per- of the physicians or attendants he employs centage of their wages for the support of the to carry out that contract." In the case of hospital. They have no control over the hos- Richardson v. Carbon Hill Coal Co. (Wash.) pital or its management, and no voice in its 32 Pac. 1012, 20 L. R. A. 340, the court said: affairs. If they do not acquire a right to be "If, on the other hand, the company was treated in the hospital, they get nothing for conducting a hospital with its own physitheir money; and, if they have this right, ciai for the purpose of deriving profit tbereit must be against the railroad company, who from, or if it contracted with appellant to retains their money, and is the only person furnish him with the services of a competent who deals with them. If a surplus of the physician and to properly treat him in case funds retained is left, the operatives have no of an injury, it would be liable for the negli. right to it, and have no voice in the deter- gence or want of skill of its physician in mination of how much shall be spent. The attending him." But it is contended that, if incorporated hospital association simply such a contract existed, it was without contakes the place of the old, unincorporated as- sideration, and not enforceable; that appelsociation, and, like it, is merely an agency of lant derives no benefit or profit from the hosthe railroad company for the accomplish- pital. This is error, for it receives from its ment of its purposes, formed and controlled thousands of employés a monthly sum, by it, and cannot exist for a day without the amounting to many thousands of dollars anrailroad company. The action may be main- | nually, to officer and maintain this hospital. tained against the real party in interest, the In addition to this, there are other ways railroad company. The hospital association that the appellant derives great benefit from is nothing more than a form under which the the maintenance of the hospital. Under this railroad company transacts the business.

contract with its employés, it can send the The court, in its opinion, says that appel. injured to the hospital at once, and get them lant is only the agent of the hospital asso- into hands friendly to it, thus avoiding many ciation. This, to my mind, is an unwarrant- damage suits. This method also saves appeled conclusion, under the facts as they appear lant the payment of medical bills when an in this record. We have a case where the employé recovers judgment against it for pretended principal, the hospital associa- negligent injuries. Again, it enables its cation, is without power to appoint or elect its pable and efficient employés to be treated board of directors, or name their successors; and return to work at the earliest possible to enact or change a by-law; to appoint its moment. This is commendable, but it ought own surgeon, assistants, or attendants; to in not to attempt to shift the responsibility of any way govern or control the admission or maintaining the hospital upon a pretended exclusion of its members. In fact, it cannot charitable organization. This is not a charperform any act to change its affairs, or itable organization, within the meaning of contract any debt for any purpose, without the statutes. What these employés receive, first obtaining the consent and approval of they pay for. There is nothing given or conpersons not members, and who are the chiet tributed, and in addition, the articles of in. officials of appellant, the pretended agent. corporation include only the employés of apTo me this appears inconsistent, unless the pellant, and exclude the ones who are atllict. shadow is to be regarded, rather than the ed with chronic and other named diseases. substance.

For the above reasons, I dissent from the It is stated in the opinion that there was majority opinion. no evidence showing that the Illinois Central Railroad Company made any contract with HOBSON, C. J., concurs in this dissent.

The only question which need be considBASSETT & STONE V. ABERDEEN COAL ered on the appeal is whether there was suf& MINING CO.

ficient evidence to go to the jury on the (Court of Appeals of Kentucky. June 13,

question whether the defendant was a com1905.)

mon carrier. The proof on this subject is

as follows: J. L. Dent testified as follows: 1. COMMON CARRIERS–NATURE OF BUSINESS,

Tugs INDISCRIMINATE CARRIAGE Evi- “I requested plaintiffs to ship their stuff DENCE-QUESTION FOR JURY.

from Evansville to Rochester with defendWhere, in an action against defendants for

ant because I had done considerable shipping loss of a cargo of brick it was towing for de

with them on Green river, and the defendfendant under private contract, there was evidence that defendant's boats carried passengers,

ant had requested me to get the company produce, and merchandise, and that they re- any business I could. . * I did conceived all freight offered for transportation on the river at M., most of which was brought in the Hook and Wilford and other boats on

siderable shipping with the defendant on empty barges as they returned from towing coal, while defendant's proof was that the boats

Green river. At the time I represented a had no termini nor times of arrival nor de- fertilizer company. I shipped my fertilizers parture, and did all towing by private contract

on their boats at so much per ton, to be defor others when there was no work to do for a certain drain company, and then only did such

livered at different points on Green river; work as they saw fit to take, whether defend- freight being paid by the parties receiving ant held itself out as a common carrier for the

it in some cases and by me in some cases. time being was for the jury.

I have known the defendant's boat to car2. SAME-WHAT CONSTITUTES-LIABILITIES. Where, in an action for loss of a cargo of

ry passengers, flour, chickens, eggs, oil, and brick towed by one of defendant's steamers, de- other goods and merchandise for merchants fendant denied that it was a common carrier, doing business along the river." Noah the court should have charged on such issue

Daughety made these statements: "I am that, if defendant had expressly and publicly offered to carry for all persons indiscriminately,

wharfmaster at Morgantown Ferry. The deor by its conduct and manner of business it fendant operated towboats on Green river held itself out as ready to carry for all on such up to the time they went out of the river. trips as the boat was then making, it was a common carrier, and plaintiff was entitled to

They did the business of common carriers. recover, though there was no negligence on

They brought freight to my wharf and took defendant's part in the loss of the brick, but | freight from there. They did this in 1900 that if it had not offered to carry for all per

and 1901. The boats were the Hook and sons indiscriminately, etc., but merely carried

Carson." the brick in pursuance of a special employ

Cross-examined: "Witness said ment, it was not a common carrier, nor liable, they had no regular times for coming and in the absence of negligence.

going, no fixed terminals. Their chief busi

ness Appeal from Circuit Court, Butler County.

was towing ties and coal. Most of "To be officially reported."

freight brought by defendants was in empAction by Bassett & Stone against the

ties returning from towing coal to Bowling Aberdeen Coal & Mining Company. From

Green." W. H. Fuller testifies as follows: a judgment in favor of the defendant, plain

"I was wharfmaster at Morgantown wharf from

till tiffs appeal. Reversed.

19. I know the

defendant company. They were doing busiJ. S. Wortham, Howard & Gardner, and

ness on Green river between Evansville and Green & Van Winkle, for appellants. A.

Bowling Green, and operated towboats. The Thatcher and W. A. Helm, for appellee.

I. N. Hook and J. T. Oarson were common

carriers. They brought freight to my wharf HOBSON, C. J. The Aberdeen Coal & from Bowling Green and Evansville, Ind. Mining Company operated two boats—the They received all the freight offered to them Carson and I. N. Hook-on Green river. at my wharf.” Cross-examined:

“I reBassett & Stone made a contract with the member they brought

drummer's company to bring a lot of brick from Evans- trunks on a barge. They brought some brick ville to Rochester for $160, the brick to be for the town, and charged no freight for loaded by them at Evansville on a barge be- same. They would not land and take on freight longing to it, and then to be towed by it up and passengers regularly like other boats, to Rochester. The contract was made by but only occasionally. Their chief business telephone, and afterwards confirmed by let- was towing ties.” In appellee's letter head ter. While the boat I. N. Hook was going was this: "Towing a specialty," and in letup the river the barge struck a hidden snag ter to appellants it said: “This rate we gave and was sunk, Bassett & Stone then filed you is confidential, and we would not like this suit against the company to recover to hear it spoken of by outsiders." The proof for the loss of the brick, alleging that it was for defendant by J. D. Render was as fola common carrier, and that the brick were lows: "I am secretary and treasurer of the lost by its negligence. The allegations were Aberdeen Coal & Mining Company. We denied, and on final hearing the court re- owned the Hook and Carson. They were fused to submit to the jury whether the de- towboats, and operated on Green and Barfendant was a common carrier, and on the ren rivers. We did a general towing busiquestion of negligence the jury found for the ness. We only took freight by contract, defendant. The plaintiffs appeal.

and carried it on barges. We did not hold

some

we

ourselves out to the public to take freight for erty of the defendant, and controlled by it. all who wanted to ship, but only by private Whether it would carry the freight on the contract George Fletcher applied to me to steamboat or on the barge was for it to detow the freight sued for. He talked to me termine, and its liability in either case will by telephone from Rochester. I offered to depend upon whether it was acting as a do it for $160, he to be responsible for barge common carrier or a private carrier for hire. and cargo. The contract was finally settled In the case referred to the court, after examthrough Mr. Walker, my bookkeeper. I told ining the authorities, thus laid down the rule him he was to be responsible for cargo and for determining whether a person is chargebarge, and he (Fletcher) wanted to know if able as a common carrier: “When a person that was customary.

I told him it was. has assumed the character of a common carFletcher said he would let me know about rier, either by expressly offering his servit. I never talked to Fletcher at Leitchfield. ices to all who will hire him or by so conI told Mr. T. F. Walker about it and went | ducting his business as to justify the belief West, and Mr. Walker closed the trade. on the part of the public that he meant to When I came home I learned the barge and become the servant of the public, and to carmaterial had been sunk. My company is not ry for all, he may be safely presumed to a common carrier. At the time the contract have intended to assume the liabilities of a was made with plaintiff, we were under con- common carrier, for he was bound to know tract with the Evansville Grain Company to that the law would so charge him, and, knowdo all their towing, and were then engaged in ing, must have intended it. But, in order towing their ties from Green and Barren riv- to impress upon him the character and imers to Evansville, Ind. We had no fixed ter- pose upon him the liabilities of a common mini or times of arrival and departure. We carrier, his conduct must amount to a public did all towing by private contract. When offer to carry for all who tender him such not rushed by said grain company, goods as he is accustomed to carry. When would sometimes bring some freight from this is the case, then those who tender him Evansville in empties. We had no regular goods to carry accept his offer, and he bestopping places, but went direct to tie yards, comes bound to carry them; and if he refuses and there loaded our barges.

We to do so, 'having convenience,' and being did carry some fertilizer in barges to upper tendered satisfaction for the carriage, he is Green river for Mr. Dent. We carried same liable to an action, unless he has reasonable in empties, and in large quantities. We excuse for his refusal." After elaborating brought some trunks from Woodbury to on this the court thus summed up the matMorgantown to accommodate some drum- ter: “Our conclusion, then, is that a carrier mers.” Cross-examined: "I have carried of goods is not liable as a common carrier, freight to Morgantown on several occasions unless he was under a legal obligation to acwith these boats along about the time the cept the goods and carry them, and would barge was sunk. I carried chickens and eggs have been liable to an action if, without reafrom Millshed, Threlkel, Edgars, and Lock sonable excuse, he had refused to receive No. 5-all these landings, and took freight them; and that he could not be liable to to them the same summer that the barge such an action unless he had expressly and was sunk, and had done so before. I carried publicly offered to carry for all persons infertilizer for

before the barge was differently, or had, by his conduct and the sunk by my boat." Grace Davis, the pilot, manner of conducting his business, held himtestified as follows: "Occasionally she would self out as ready to carry for all. We are row a barge of stuff for others, in order to aware that the rule has not always, and perfill out her tow; and on this occasion she haps not generally, been thus restricted. was towing a barge of brick. This occur- But, as we have already said, the law apred only a few times.” Several other wit- plicable to common carriers is peculiarly rignesses on behalf of the defendant gave in orous, and it ought not to be extended to substance the same evidence, stating that persons who have not expressly assumed that the boats only carried occasionally a barge character, or by their conduct and from the of stuff to fill out their tow, and that they nature of their business justified the belief were engaged by the Evansville Grain Com- on the part of the public that they intended pany altogether.

to assume it." This case is in accord with In Varble v. Bigley, 77 Ky. 698, 29 Am. the great weight of authority. Hutchinson Rep. 435, it was held that a towboat is not on Carriers, 88 47–57. a common carrier, but in that case the boat Appellants rely upon Gordon v. Hutcherwhich was sought to be held liable had been son (Pa.) 37 Am. Dec. 464, Chevallier v. simply hired to move some coal barges be- Straban (Tex.) 47 Am. Dec. 639, and the longing to the plaintiff. The boat was simply cases therein cited. But these cases are exfurnishing the motive power. In the case ceptional, and not in keeping with the genbefore us the barge belonged to the defend- eral current of authority (Hutchinson on ant. It is not easy to see why there should Carriers, 8 49, 52), and are the authorities be a distinction between freight put on the referred to by the court in Varble v. Bigley steamboat Hook and freight put on the when it said, “We are aware that the rule barge which it propelled, both being the prop- has not always, and perhaps not generally, been thus restricted." We regard this case portation of goods for hire as a public em. as settling the rule in this state. The case ployment, and not as a casual occupation. of Robertson v. Kennedy, 2 Dana, 430, 26 It is sometimes said that one who undertakes Am. Dec. 466, is not in conflict with it, for for a single occasion only to carry goods for in that case the plaintiff introduced proof any person who desires to employ him for showing that the defendant was in the that occasion is a common carrier for that habit of hauling for hire for all who applied transportation. But the cases of this kind to him. The same is true of the case of will be found to be those in which, whilst Farley v. Lavary, 107 Ky. 523, 54 S. W. 840, the business of carriage is not the exclusive, 47 L. R. A. 383. After collecting a large or perhaps the principal, business of the one number of cases, Hutchinson on Carriers, $ sought to be charged as a carrier, it is inci55, thus states the rule: “These cases un- dentally his business for the time being. In doubtedly state the law as it is settled in general, the liability of carrier does not atEngland and generally understood in this tach to one who does not hold himself out as country, and it would seem clear that no pursuing that business, but in the particular one should be treated as a common carrier case, and in each particular case, acts only unless he has in some way held himself out in consequence of a special employment." to the public as a carrier in such manner as Under the rule that, if there is a scintilla of to render himself liable to an action if he evidence, the question is for the jury, we should refuse to carry for any one who wish. conclude that under the evidence the jury ed to employ him in the particular kind of should have been left to determine whether service which he thus proposes to undertake; the defendant had assumed the character or otherwise he does not come within the de- a common carrier. There was evidence on scription, nor can be be subjected to the the part of the plaintiffs, in view of the liability of the common carrier when the amount of carrying which it was shown the goods have been lost without negligence." defendant did, from which the jury might

The question we are to determine is wheth- have inferred that it held itself out as ofer under this rule there was any evidence fering to carry for the public, or as ready to that the defendant held itself out to the pub- carry for all. The barges were brought lic as a carrier in such a manner as to render down the river loaded with ties, and would it liable to an action if it had refused to carry be returned empty unless loaded with the plaintiff's brick when applied to for that freight. The fact that the defendant requestpurpose. While one of the witnesses states ed the witness Dent to get the company any that the boats did the business of common business he could must be taken in conneccarriers, and another states that they were tion with the letter head, “Towing a specialcommon carriers, this seems a mere expres- ty." Although the defendant did not hold sion of an opinion of law. The witnesses itself out at all times as a common carrier, may have used the words in their popular there was some evidence from which the jury sense, meaning that the boats carried for might have found that such was its business the public generally or without distinction. for the time being. Robertson v. Kennedy, 2 But, however this may be, the court must Dana, 430, 26 Am. Dec. 466; Farley v. Lavdetermine the law from the facts stated. ary, 107 Ky. 523, 54 S. W. 840, 47 L. R. A. The proof for the plaintiffs shows that the 383. The court should have instructed the defendant's boats carried passengers, prod- jury that if the defendant had expressly and uce, and merchandise; also that they receiv- publicly offered to carry for all persons indifed all the freight offered them at Morgan- ferently, or had by its conduct and the mantown, most of the freight being brought in ner of conducting its business held itself out empties as they returned from towing coal. as ready to carry for all on such trips as the On the other hand, the proof for the defend- boat was then making, then it was a common ant is to the effect that the boats had no carrier, and they should find for the plaintermini or times of arrival or departure; that tiffs, although there was no negligence on they did all towing by private contract, and the part of the defendant in the loss of the only worked for others when they had no brick;. but if it had not offered to carry for work to do for the Evansville Grain Com. all persons indifferently, or by its conduct or pany, and only did such work as they saw the manner of conducting its business held fit to take. Although the boats were not com- itself out as ready to carry for all, but only mon carriers at all times, still if, on certain in each case acted in consequence of a special trips, when they had no towing to do, they employment, it was not a common carrier, held themselves out as ready to carry for all, and was not liable, unless the bricks were they would be common carriers for the time lost by its negligence. being. The rule is thus stated in 6 Cyc. p. Judgment reversed, and cause remanded 366: “A common carrier is one who holds for new trial and further proceedings conhimself out as ready to engage in the trans- sistent herewith,

thereof, where a nonresident died possessed of The trust company, in its answer, states

tract of land containing forty acres more or MEMPHIS TRUST CO. V. SPEED, County less and situated on the north side of the Court Clerk.

town cemetery in Oxford, Mississippi. I fur(Supreme Court of Tennessee. July 5, 1905.)

ther give, bequeath and devise to my wife,

Mary D. Price, one half of all the residue of 1. COLLATERAL INHERITANCE TAXES—ASSESSMENT—FOREIGN ASSETS.

my estate whether real or personal or mixed Under Shannon's Code, 88 724, 735, pro

and wherever located and I request and deviding for the assessment of a collateral inher- sire her to entrust to the Memphis Trust itance tax, except on property passing to the

Company that portion of my estate given to widow of the person dying seised or possessed

her" personal property in Tennessee, which was a part of the residue of his estate, one-half of that in the division of the estate of the late which he bequeathed to his widow, and she

Bem Price his stock in the National Bank elected to take one-half of such property in kind, such half was not taxable.

of Commerce embraced in the appraisement 2. SAME-DEBTS.

was selected by and set apart to Mrs. Mary Where a portion of the assets of a non- D. Price, widow of testator, as a part and resident deceased person passed to collateral portion of one-half of his estate to which legatees under the will, the executor was not entitled to deduct from the amount of such as

she was entitled under the terms of his sets subject to collateral inheritance taxation

will. Defendant further avers that Mary D. the amount of Tennessee debts owed by the tes- Price had the right to select and insist upon tator at the time of his death, but paid by the

the shares of stock in the National Bank of executor prior to the institution of proceedings for the assessment of the tax, in the absence of

Commerce as a part and portion of her oneproof that they were paid from Tennessee as- half interest in the estate of her deceased sets.

husband, and that this respondent, as execAppeal from Circuit Court, Shelby Coun

utor, had no right to object to her selection ty; J. P. Young, Judge.

of said stock, provided only it was taken at Proceedings for the assessment of a col

a fair valuation, which was actually done. lateral inheritance tax against the estate of

Respondent therefore avers that, inasmuch Bem Price, deceased. From an order assess

as the shares of stock in the National Bank ing the tax in favor of R. A. Speed, clerk,

of Commerce were never held in any way by the Memphis Trust Company, executor, ap

the collateral relatives of testator, it is not peals. Affirmed.

responsible or liable for any collateral in

heritance tax thereon. Respondent further S. J. Shepherd, for Memphis Trust Co. stated that said stock in the National Bank Attorney General Cates, W. P. Eldridge, and of Commerce was set apart for said Mary D. G. P. Smith, for R. A. Speed, clerk.

Price in kind, and so transferred to her.

Respondent further avers that at the time MCALISTER, J. The question presented of the death of Bem Price, he was indebted for determination upon this record is wheth- to the National Bank of Commerce, which is er $20,000 of stock in the Bank of Commerce a Tennessee corporation, in the sum of $7,is subject to a collateral inheritance tax. It 539, and also owed to said National Bank of appears that Bem Price died domiciled in the Commerce an additional sum of $5,000, thus state of Mississippi, and left an estate in making a total indebtedness of said Bem Tennessee appraised at the value of $34,000. Price in the state of Tennessee of the sum The deceased left a last will and testament, of $12,539. of which the Memphis Trust Company was Respondent further avers that it is its duly appointed executor by the chancery duty to set off and charge against the value court of Mississippi, and ancillary letters of stock in the Memphis Trust Company the testamentary have been granted to it by the indebtedness of said Bem Price due to Tenprobate court of Shelby county, Tenn. It is nessee creditors, inasmuch as this stock conaverred that such ancillary letters testa- stitutes a fund peculiarly and especially mentary were only granted to said trust com- liable therefor. Respondent therefore avers pany for the purpose of enabling it to col- that after the allotment to Mrs. Mary D. lect and secure possession of certain assets, Price, widow of testator, of the stock in the and also to enable it to pay off and discharge National Bank of Commerce, which she secertain debts which were due and owing in lected in kind, as she had a right to do, and the state of Tennessee. The will provides as after charging against the stock in the Memfollows: "I give and bequeath and devise to phis Trust Company the amount of the inmy beloved wife, Mary D. Price, my home debtedness due to the estate of Bem Price, no place consisting of 105 acres, more or less personal assets or assets of any kind remain with all improvements thereon situated in in the state of Tennessee subject to a colthe town of Oxford, Mississippi, and on the lateral inheritance tax or other tax of any west side of North Street in •said town. I kind. It appears from the record that Gil.. also give to my wife all of the household mer P. Smith was appointed by R. A. Speed, furniture in said house, my carriage and county court clerk, to appraise the estate of horses and such of my milk cows as she Bem Price, deceased, situated in Shelby coun. may desire for her private use. I also give ty, Tenn., which was or might be liable to and devise to my wife, Mary D. Price, the taxation under the collateral inheritance tax

88 S.W.-21

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