not for what cause, he is no longer a member of the association. He is dropped, leaving all that has been deducted from his wages in the hands of appellant's chief officials. This is true of all the employés, and all combined would be powerless to change the by-laws. This matter is completely within the power of the eight directors, chief officials of the appellant. In view of these facts, it is apparent why the court in the Gheen Case supra used the following language: "The appellant is the very life of the association. Its funds, management, control, and service are all furnished by appellant. In fact, the hospital association is the Illinois Central Railroad Company." Under that case, the judgment herein must be affirmed, as the evidence is the same, unless the bare fact that since then the hospital association has been incorporated changes the rule. To so hold is to recognize form, not substance. The operatives of the railroad company have no option as to the retention by it of a percentage of their wages for the support of the hospital. They have no control over the hospital or its management, and no voice in its affairs. If they do not acquire a right to be treated in the hospital, they get nothing for their money; and, if they have this right, it must be against the railroad company, who retains their money, and is the only person who deals with them. If a surplus of the funds retained is left, the operatives have no right to it, and have no voice in the determination of how much shall be spent. The incorporated hospital association simply takes the place of the old, unincorporated association, and, like it, is merely an agency of the railroad company for the accomplishment of its purposes, formed and controlled by it, and cannot exist for a day without the railroad company. The action may be maintained against the real party in interest, the railroad company. The hospital association is nothing more than a form under which the railroad company transacts the business. The court, in its opinion, says that appellant is only the agent of the hospital association. This, to my mind, is an unwarranted conclusion, under the facts as they appear in this record. We have a case where the pretended principal, the hospital association, is without power to appoint or elect its board of directors, or name their successors; to enact or change a by-law; to appoint its own surgeon, assistants, or attendants; to in any way govern or control the admission or exclusion of its members. In fact, it cannot perform any act to change its affairs, or contract any debt for any purpose, without first obtaining the consent and approval of persons not members, and who are the chief officials of appellant, the pretended agent. To me this appears inconsistent, unless the shadow is to be regarded, rather than the substance. It is stated in the opinion that there was no evidence showing that the Illinois Central Railroad Company made any contract with the appellee that he should be properly and skillfully treated by proper and skillful surgeons and attendants. The proof does show that it retained of his wages a sum each month for three or four years for the purpose of giving him treatment in its hospital in the event he should become sick or receive an injury. This being true, it amounted to a contract. At least, it was implied on the part of appellant that it would place in charge of the hospital physicians and surgeons of reasonable skill and learning, and that the sick and the injured should have reasonably proper and skillful treatment, and for a failure in this the appellee has a cause of action. In the case of Union Pacific R. Co. v. Artist, 60 Fed, 365, 9 C. C. A. 14, 23 L. R. A. 582, the court said: "If one contracts to treat a patient in a hospital, or out of it, for that matter, for any disease or injury, he undoubtedly becomes liable for any injury suffered by the patient through the carelessness of the physicians or attendants he employs to carry out that contract." In the case of Richardson v. Carbon Hill Coal Co. (Wash.) 32 Pac. 1012, 20 L. R. A. 340, the court said: "If, on the other hand, the company was conducting a hospital with its own physicians for the purpose of deriving profit therefrom, or if it contracted with appellant to furnish him with the services of a competent physician and to properly treat him in case of an injury, it would be liable for the negligence or want of skill of its physician in attending him." But it is contended that, if such a contract existed, it was without consideration, and not enforceable; that appellant derives no benefit or profit from the hospital. This is error, for it receives from its thousands of employés a monthly sum, amounting to many thousands of dollars annually, to officer and maintain this hospital. In addition to this, there are other ways that the appellant derives great benefit from the maintenance of the hospital. Under this contract with its employés, it can send the injured to the hospital at once, and get them into hands friendly to it, thus avoiding many damage suits. This method also saves appellant the payment of medical bills when an employé recovers judgment against it for negligent injuries. Again, it enables its capable and efficient employés to be treated and return to work at the earliest possible moment. This is commendable, but it ought not to attempt to shift the responsibility of maintaining the hospital upon a pretended charitable organization. This is not a charitable organization, within the meaning of the statutes. What these employés receive, they pay for. There is nothing given or contributed, and, in addition, the articles of incorporation include only the employés of appellant, and exclude the ones who are afflict ed with chronic and other named diseases. For the above reasons, I dissent from the majority opinion. HOBSON, C. J., concurs in this dissent. BASSETT & STONE v. ABERDEEN COAL & MINING CO. (Court of Appeals of Kentucky. June 13, 1905.) 1. COMMON CARRIERS-NATURE OF BUSINESS- - Where, in an action against defendants for loss of a cargo of brick it was towing for defendant under private contract, there was evidence that defendant's boats carried passengers, produce, and merchandise, and that they received all freight offered for transportation on the river at M., most of which was brought in. empty barges as they returned from towing coal, while defendant's proof was that the boats had no termini nor times of arrival nor departure, and did all towing by private contract for others when there was no work to do for a certain drain company, and then only did such work as they saw fit to take, whether defendant held itself out as a common carrier for the time being was for the jury. 2. SAME-WHAT CONSTITUTES-LIABILITIES. Where, in an action for loss of a cargo of brick towed by one of defendant's steamers, defendant denied that it was a common carrier, the court should have charged on such issue that, if defendant had expressly and publicly offered to carry for all persons indiscriminately, or by its conduct and manner of business it held itself out as ready to carry for all on such trips as the boat was then making, it was a common carrier, and plaintiff was entitled to recover, though there was no negligence on defendant's part in the loss of the brick, but that if it had not offered to carry for all persons indiscriminately, etc., but merely carried the brick in pursuance of a special employment, it was not a common carrier, nor liable, in the absence of negligence. Appeal from Circuit Court, Butler County. "To be officially reported." Action by Bassett & Stone against the Aberdeen Coal & Mining Company. From a judgment in favor of the defendant, plaintiffs appeal. Reversed. J. S. Wortham, Howard & Gardner, and Green & Van Winkle, for appellants. A. Thatcher and W. A. Helm, for appellee. HOBSON, C. J. The Aberdeen Coal & Mining Company operated two boats-the Carson and I. N. Hook-on Green river. Bassett & Stone made a contract with the company to bring a lot of brick from Evansville to Rochester for $160, the brick to be loaded by them at Evansville on a barge belonging to it, and then to be towed by it up to Rochester. The contract was made by telephone, and afterwards confirmed by letter. While the boat I. N. Hook was going up the river the barge struck a hidden snag and was sunk. Bassett & Stone then filed this suit against the company to recover for the loss of the brick, alleging that it was a common carrier, and that the brick were lost by its negligence. The allegations were denied, and on final hearing the court refused to submit to the jury whether the defendant was a common carrier, and on the question of negligence the jury found for the defendant. The plaintiffs appeal. * * The only question which need be considered on the appeal is whether there was sufficient evidence to go to the jury on the question whether the defendant was a common carrier. The proof on this subject is as follows: J. L. Dent testified as follows: "I requested plaintiffs to ship their stuff from Evansville to Rochester with defendant because I had done considerable shipping with them on Green river, and the defendant had requested me to get the company any business I could. I did considerable shipping with the defendant on the Hook and Wilford and other boats on Green river. At the time I represented a fertilizer company. I shipped my fertilizers on their boats at so much per ton, to be delivered at different points on Green river; freight being paid by the parties receiving it in some cases and by me in some cases. I have known the defendant's boat to carry passengers, flour, chickens, eggs, oil, and other goods and merchandise for merchants doing business along the river." Noah Daughety made these statements: "I am wharfmaster at Morgantown Ferry. The defendant operated towboats on Green river up to the time they went out of the river. They did the business of common carriers. They brought freight to my wharf and took freight from there. They did this in 1900 and 1901. The boats were the Hook and Carson." Cross-examined: "Witness said they had no regular times for coming and going, no fixed terminals. Their chief business was towing ties and coal. Most of freight brought by defendants was in empties returning from towing coal to Bowling Green." W. H. Fuller testifies as follows: "I was wharfmaster at Morgantown wharf from till 19. I know the defendant company. They were doing business on Green river between Evansville and Bowling Green, and operated towboats. The I. N. Hook and J. T. Carson were common carriers. They brought freight to my wharf from Bowling Green and Evansville, Ind. They received all the freight offered to them at my wharf." Cross-examined: "I remember they brought some drummer's trunks on a barge. They brought some brick for the town, and charged no freight for same. They would not land and take on freight and passengers regularly like other boats, but only occasionally. Their chief business was towing ties." In appellee's letter head was this: "Towing a specialty," and in letter to appellants it said: "This rate we gave you is confidential, and we would not like to hear it spoken of by outsiders." The proof for defendant by J. D. Render was as follows: "I am secretary and treasurer of the Aberdeen Coal & Mining Company. We owned the Hook and Carson. They were towboats, and operated on Green and Barren rivers. We did a general towing business. We only took freight by contract, and carried it on barges. We did not hold ourselves out to the public to take freight for all who wanted to ship, but only by private contract. George Fletcher applied to me to tow the freight sued for. He talked to me by telephone from Rochester. I offered to do it for $160, he to be responsible for barge and cargo. The contract was finally settled through Mr. Walker, my bookkeeper. I told him he was to be responsible for cargo and barge, and he (Fletcher) wanted to know if that was customary. I told him it was. Fletcher said he would let me know about it. I never talked to Fletcher at Leitchfield. I told Mr. T. F. Walker about it and went West, and Mr. Walker closed the trade. When I came home I learned the barge and material had been sunk. My company is not a common carrier. At the time the contract was made with plaintiff, we were under contract with the Evansville Grain Company to do all their towing, and were then engaged in towing their ties from Green and Barren rivers to Evansville, Ind. We had no fixed termini or times of arrival and departure. We did all towing by private contract. When not rushed by said grain company, we would sometimes bring some freight from Evansville in empties. We had no regular stopping places, but went direct to tie yards, and there loaded our barges. * * We did carry some fertilizer in barges to upper Green river for Mr. Dent. We carried same in empties, and in large quantities. We brought some trunks from Woodbury to Morgantown to accommodate some drummers." Cross-examined: "I have carried freight to Morgantown on several occasions with these boats along about the time the barge was sunk. I carried chickens and eggs from Millshed, Threlkel, Edgars, and Lock No. 5-all these landings, and took freight to them the same summer that the barge was sunk, and had done so before. I carried fertilizer for before the barge was sunk by my boat." Grace Davis, the pilot, testified as follows: "Occasionally she would Low a barge of stuff for others, in order to fill out her tow; and on this occasion she was towing a barge of brick. This occurred only a few times." Several other witnesses on behalf of the defendant gave in substance the same evidence, stating that the boats only carried occasionally a barge of stuff to fill out their tow, and that they were engaged by the Evansville Grain Company altogether. In Varble v. Bigley, 77 Ky. 698, 29 Am. Rep. 435, it was held that a towboat is not a common carrier, but in that case the boat which was sought to be held liable had been simply hired to move some coal barges belonging to the plaintiff. The boat was simply furnishing the motive power. In the case before us the barge belonged to the defendant. It is not easy to see why there should be a distinction between freight put on the steamboat Hook and freight put on the barge which it propelled, both being the prop erty of the defendant, and controlled by it. Whether it would carry the freight on the steamboat or on the barge was for it to determine, and its liability in either case will depend upon whether it was acting as a common carrier or a private carrier for hire. In the case referred to the court, after examining the authorities, thus laid down the rule for determining whether a person is chargeable as a common carrier: "When a person has assumed the character of a common carrier, either by expressly offering his services to all who will hire him or by so conducting his business as to justify the belief on the part of the public that he meant to become the servant of the public, and to carry for all, he may be safely presumed to have intended to assume the liabilities of a common carrier, for he was bound to know that the law would so charge him, and, knowing, must have intended it. But, in order to impress upon him the character and impose upon him the liabilities of a common carrier, his conduct must amount to a public offer to carry for all who tender him such goods as he is accustomed to carry. When this is the case, then those who tender him goods to carry accept his offer, and he becomes bound to carry them; and if he refuses to do so, 'having convenience,' and being tendered satisfaction for the carriage, he is liable to an action, unless he has reasonable excuse for his refusal." After elaborating on this the court thus summed up the matter: "Our conclusion, then, is that a carrier of goods is not liable as a common carrier, unless he was under a legal obligation to accept the goods and carry them, and would have been liable to an action if, without reasonable excuse, he had refused to receive them; and that he could not be liable to such an action unless he had expressly and publicly offered to carry for all persons indifferently, or had, by his conduct and the manner of conducting his business, held himself out as ready to carry for all. We are aware that the rule has not always, and perhaps not generally, been thus restricted. But, as we have already said, the law applicable to common carriers is peculiarly rigorous, and it ought not to be extended to persons who have not expressly assumed that character, or by their conduct and from the nature of their business justified the belief on the part of the public that they intended to assume it." This case is in accord with the great weight of authority. Hutchinson on Carriers, §§ 47-57. Appellants rely upon Gordon v. Hutcherson (Pa.) 37 Am. Dec. 464, Chevallier v. Strahan (Tex.) 47 Am. Dec. 639, and the cases therein cited. But these cases are exceptional, and not in keeping with the general current of authority (Hutchinson on Carriers, §§ 49, 52), and are the authorities referred to by the court in Varble v. Bigley when it said, "We are aware that the rule has not always, and perhaps not generally, been thus restricted." We regard this case as settling the rule in this state. The case of Robertson v. Kennedy, 2 Dana, 430, 26 Am. Dec. 466, is not in conflict with it, for in that case the plaintiff introduced proof showing that the defendant was in the habit of hauling for hire for all who applied to him. The same is true of the case of Farley v. Lavary, 107 Ky. 523, 54 S. W. 840, 47 L. R. A. 383. After collecting a large number of cases, Hutchinson on Carriers, § 55, thus states the rule: "These cases undoubtedly state the law as it is settled in England and generally understood in this country, and it would seem clear that no one should be treated as a common carrier unless he has in some way held himself out to the public as a carrier in such manner as to render himself liable to an action if he should refuse to carry for any one who wished to employ him in the particular kind of service which he thus proposes to undertake; otherwise he does not come within the description, nor can he be subjected to the liability of the common carrier when the goods have been lost without negligence." The question we are to determine is whether under this rule there was any evidence that the defendant held itself out to the public as a carrier in such a manner as to render it liable to an action if it had refused to carry the plaintiff's brick when applied to for that purpose. While one of the witnesses states that the boats did the business of common carriers, and another states that they were common carriers, this seems a mere expression of an opinion of law. The witnesses may have used the words in their popular sense, meaning that the boats carried for the public generally or without distinction. But, however this may be, the court must determine the law from the facts stated. The proof for the plaintiffs shows that the defendant's boats carried passengers, produce, and merchandise; also that they received all the freight offered them at Morgantown, most of the freight being brought in empties as they returned from towing coal. On the other hand, the proof for the defendant is to the effect that the boats had no termini or times of arrival or departure; that they did all towing by private contract, and only worked for others when they had no work to do for the Evansville Grain Company, and only did such work as they saw fit to take. Although the boats were not common carriers at all times, still if, on certain trips, when they had no towing to do, they held themselves out as ready to carry for all, they would be common carriers for the time being. The rule is thus stated in 6 Cyc. p. 366: "A common carrier is one who holds himself out as ready to engage in the trans portation of goods for hire as a public employment, and not as a casual occupation. It is sometimes said that one who undertakes for a single occasion only to carry goods for any person who desires to employ him for that occasion is a common carrier for that transportation. But the cases of this kind will be found to be those in which, whilst the business of carriage is not the exclusive, or perhaps the principal, business of the one sought to be charged as a carrier, it is incidentally his business for the time being. In general, the liability of carrier does not attach to one who does not hold himself out as pursuing that business, but in the particular case, and in each particular case, acts only in consequence of a special employment." Under the rule that, if there is a scintilla of evidence, the question is for the jury, we conclude that under the evidence the jury should have been left to determine whether the defendant had assumed the character of a common carrier. There was evidence on the part of the plaintiffs, in view of the amount of carrying which it was shown the defendant did, from which the jury might have inferred that it held itself out as offering to carry for the public, or as ready to carry for all. The barges were brought down the river loaded with ties, and would be returned empty unless loaded with freight. The fact that the defendant requested the witness Dent to get the company any business he could must be taken in connection with the letter head, "Towing a specialty." Although the defendant did not hold itself out at all times as a common carrier, there was some evidence from which the jury might have found that such was its business for the time being. Robertson v. Kennedy, 2 Dana, 430, 26 Am. Dec. 466; Farley v. Lavary, 107 Ky. 523, 54 S. W. 840, 47 L. R. A. 383. The court should have instructed the jury that if the defendant had expressly and publicly offered to carry for all persons indifferently, or had by its conduct and the manner of conducting its business held itself out as ready to carry for all on such trips as the boat was then making, then it was a common carrier, and they should find for the plaintiffs, although there was no negligence on the part of the defendant in the loss of the brick; but if it had not offered to carry for all persons indifferently, or by its conduct or the manner of conducting its business held itself out as ready to carry for all, but only in each case acted in consequence of a special employment, it was not a common carrier, and was not liable, unless the bricks were lost by its negligence. Judgment reversed, and cause remanded for a new trial and further proceedings consistent herewith. MEMPHIS TRUST CO. v. SPEED, County Court Clerk. (Supreme Court of Tennessee. July 5, 1905.) 1. COLLATERAL INHERITANCE TAXES-AssessMENT-FOREIGN ASSETS. Under Shannon's Code, §§ 724, 735, providing for the assessment of a collateral inheritance tax, except on property passing to the widow of the person dying seised or possessed thereof, where a nonresident died possessed of personal property in Tennessee, which was a part of the residue of his estate, one-half of which he bequeathed to his widow, and she elected to take one-half of such property in kind, such half was not taxable. 2. SAME-DEBTS. Where a portion of the assets of a nonresident deceased person passed to collateral legatees under the will, the executor was not entitled to deduct from the amount of such assets subject to collateral inheritance taxation the amount of Tennessee debts owed by the testator at the time of his death, but paid by the executor prior to the institution of proceedings for the assessment of the tax, in the absence of proof that they were paid from Tennessee asBets. Appeal from Circuit Court, Shelby County; J. P. Young, Judge. Proceedings for the assessment of a collateral inheritance tax against the estate of Bem Price, deceased. From an order assessing the tax in favor of R. A. Speed, clerk, the Memphis Trust Company, executor, appeals Affirmed. S. J. Shepherd, for Memphis Trust Co. Attorney General Cates, W. P. Eldridge, and G. P. Smith, for R. A. Speed, clerk. MCALISTER, J. The question presented for determination upon this record is whether $20,000 of stock in the Bank of Commerce is subject to a collateral inheritance tax. It appears that Bem Price died domiciled in the state of Mississippi, and left an estate in Tennessee appraised at the value of $34,000. The deceased left a last will and testament, of which the Memphis Trust Company was duly appointed executor by the chancery court of Mississippi, and ancillary letters testamentary have been granted to it by the probate court of Shelby county, Tenn. It is averred that such ancillary letters testamentary were only granted to said trust company for the purpose of enabling it to collect and secure possession of certain assets, and also to enable it to pay off and discharge certain debts which were due and owing in the state of Tennessee. The will provides as follows: "I give and bequeath and devise to my beloved wife, Mary D. Price, my home place consisting of 105 acres, more or less with all improvements thereon situated in the town of Oxford, Mississippi, and on the west side of North Street in said town. I also give to my wife all of the household furniture in said house, my carriage and horses and such of my milk cows as she may desire for her private use. I also give and devise to my wife, Mary D. Price, the 88 S.W.-21 tract of land containing forty acres more or less and situated on the north side of the town cemetery in Oxford, Mississippi. I further give, bequeath and devise to my wife, Mary D. Price, one half of all the residue of my estate whether real or personal or mixed and wherever located and I request and desire her to entrust to the Memphis Trust Company that portion of my estate given to her, except," etc. The trust company, in its answer, states that in the division of the estate of the late Bem Price his stock in the National Bank of Commerce embraced in the appraisement was selected by and set apart to Mrs. Mary D. Price, widow of testator, as a part and portion of one-half of his estate to which she was entitled under the terms of his will. Defendant further avers that Mary D. Price had the right to select and insist upon the shares of stock in the National Bank of Commerce as a part and portion of her onehalf interest in the estate of her deceased husband, and that this respondent, as executor, had no right to object to her selection of said stock, provided only it was taken at a fair valuation, which was actually done. Respondent therefore avers that, inasmuch as the shares of stock in the National Bank of Commerce were never held in any way by the collateral relatives of testator, it is not responsible or liable for any collateral inheritance tax thereon. Respondent further stated that said stock in the National Bank of Commerce was set apart for said Mary D. Price in kind, and so transferred to her. Respondent further avers that at the time of the death of Bem Price, he was indebted to the National Bank of Commerce, which is a Tennessee corporation, in the sum of $7,539, and also owed to said National Bank of Commerce an additional sum of $5,000, thus making a total indebtedness of said Bem Price in the state of Tennessee of the sum of $12,539. Respondent further avers that it is its duty to set off and charge against the value of stock in the Memphis Trust Company the indebtedness of said Bem Price due to Tennessee creditors, inasmuch as this stock constitutes a fund peculiarly and especially liable therefor. Respondent therefore avers that after the allotment to Mrs. Mary D. Price, widow of testator, of the stock in the National Bank of Commerce, which she selected in kind, as she had a right to do, and after charging against the stock in the Memphis Trust Company the amount of the indebtedness due to the estate of Bem Price, no personal assets or assets of any kind remain in the state of Tennessee subject to a collateral inheritance tax or other tax of any kind. It appears from the record that Gilmer P. Smith was appointed by R. A. Speed, county court clerk, to appraise the estate of Bem Price, deceased, situated in Shelby county, Tenn., which was or might be liable to taxation under the collateral inheritance tax |