(238 S.W.)

for the purpose of enabling persons to place | buildings might adjoin each other; in one bets and wagers upon horse races is a com- certain persons might be operating the game mon gambling house and a nuisance per se. of craps, or any one of the other games spec[1] We think it cannot be questioned that ified in section 6807 of Shannon's Code, while it was the intention of the Legislature, when in the other persons might be operating the it passed the nuisance act, to provide addi- game and pursuing the business of accepting tional means for preventing the operation and encouraging bets on horse races. The and running of all houses where gambling is games conducted in the first building would carried on or conducted in violation of law. be a nuisance and the subject of abatement, As said by the Court of Civil Appeals, we can while the business conducted and carried ou see no reason for narrowing the act to the in the adjoining building, although declared operation of such houses as are prohibited by statute to be gambling and prohibited as by section 6807 of Shannon's Annotated Code. such, would be exempt from any such conseThe case of State v. Nashville Baseball quences. We are not willing to give any Association, 141 Tenn. 456, 211 S. W. 357, 4 A. such interpretation to the nuisance act. We L. R. 368, is relied on by defendants in sup- do not think the Legislature intended that port of their contention that the nuisance any such distinction should be made. act does not apply to houses in which gambling on horse races is conducted.

[2] The complainant has also filed a petition for writ of certiorari to have reviewed the action of the Court of Civil Appeals remanding the cause to the chancery court for a new hearing. It is insisted that no such procedure is authorized in equity causes. It is insisted that the Court of Civil Appeals should have rendered a decree sustaining the bill and making the injunction permanent. The defendants' motion to have the bill dismissed was made at the conclusion of the complainant's evidence. The ground of the motion was that the nuisance act has no application to gambling houses of the character of the one in question, and that therefore the bill did not state any cause of action.

We think the proper way to have raised this question would have been by demurrer. This would have been in accord with the regular and usual chancery practice. We think, however, that the motion may and should be treated as in the nature of a demurrer to the bill, and the fact that the chancellor sustained the motion and dismissed the bill under the mistaken conception that it did not state a cause of action should

We do not think that case is controlling in the instant case. The opinion of the court in that case holding that the playing of the game of baseball on Sunday was not within the inhibition of the statute which made it unlawful for any merchant, artificer, tradesman, farmer, or other person to be guilty of doing or exercising any of the common avocations of life, or of causing or permitting the same to be done by his children or servants, acts of real necessity or charity excepted, on Sunday, was based on the fact that at the time of the passage of the act in question the game of baseball had not been invented and was unknown, and hence the Legislature could not possibly have had such game in mind at the time it passed said act. In the instant cause it does not appear that, at the time of the passage of the act incorporated in section 6807 of Shannon's Annotated Code (1883, ch. 230, § 1; 1899, ch. 5) horse racing was unknown; but, as hereinbefore shown, gambling on horse races and the operation of houses wherein such gambling was conducted had been declared un-not preclude appellants from having the lawful and prohibited by statute for several years before the passage of the nuisance act, and the act prohibiting horse racing and gambling on horse races, and the operation of houses where such gambling was conducted by the complainant. The chancellor only ed were in force when the nuisance act was passed. In the instant cause the proof shows that the defendants Peck Maloughney and Sam Latham, alias Sam Nathan, were conduce any proof, and none was offered by ducting habitually in the house located at 124 Monroe avenue, with the knowledge and consent of the defendants Nabors and McCall, betting on horse races, and the chancellor so found.

cause fully heard on its merits. In view of the chancellor's action on the motion, it was unnecessary for appellants to introduce any proof to rebut that which had been introduc

heard one side of the cause. As before stated, the chancellor's action on the motion made it unnecessary for appellants to intro

them. We think justice demands that they be given an opportunity to offer any proof which they may have that would meet and defeat the allegations of the bill. The complainant could not possibly be prejudiced by this course, while, if this is not done, prejudice may result to appellants.

As said by the Court of Civil Appeals, if the chancellor were correct in his holding that such gambling does not constitute a vio- It results, therefore, that the judgment of lation of the nuisance act, a very unusual the Court of Civil Appeals is in all respects and anomalous situation would result. Two affirmed,

1. Arrest 63(3), 64-Sheriff or private per- deputy appointed to assist in making a particson can arrest without warrant one trans-ular arrest, since in the case of a sheriff there porting whisky in his presence. is an exception to the general rule that a pubThe transportation of 60 gallons of whisky lic officer is not liable for the acts of his

2. Arrest 68-Notice of cause of arrest held manded for trial, and defendants bring cerunnecessary.

Where an attempted arrest of an automo-mobile. bile driver by the sheriff was lawful, the at- of Hamilton county, and Charles Morrison, tempt of the driver to run down the sheriff

6. Arrest 68–Killing to take felon justified Ford car to a point on Lookout Mountain, only if necessary.

to where what is known as the Mountain road and the Wauhachie road fork. They parked their car across the Wauhachie road.

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

(238 S.W.)

The road goes around the mountain side] then took the dead man in their own car at this point. There is a wall on either side and brought him into the city. of it. When the car was parked across the road there was a space of four or five feet between the ends of the car and the adjacent walls.

After waiting for an hour or more, the sheriff and Morrison heard a car coming from Georgia, which they supposed was the Love car. The sheriff and Morrison stationed themselves on either side of the road, the sheriff somewhat in advance of Morrison, both being between their own car and the approaching car. The sheriff and Morrison were both armed with shotguns. As the car from Georgia approached, the sheriff came out into the road and ordered it to halt. Instead of halting, the driver of the car speeded it up and ran it directly at the sheriff. The sheriff jumped out of the way and the driver of the car then ran it at Morrison. Morrison testified for the plaintiff below and the sheriff in his own behalf. Both of them say that the driver of this car speeded up and attempted to run them down when he was called on to halt, and the effect of their testimony is that they had to jump for their lives.

After passing the sheriff, the driver of the car attempted to run between the end of the parked car and the wall of the road. He accomplished this successfully and got by, bending the fender on the parked car and scraping the wall of the road. After getting through this hole the operator of the car apparently lost control of it and ran it into the wall of the road a few yards below the parked car in the direction of Chattanooga, where the car was halted and wrecked. This car was being operated by the deceased, R. L. Love, and contained 60 gallons of whisky in 5-gallon milk cans. After the whisky car passed the sheriff he fired his gun. After it passed Morrison he fired his gun. The sheriff claims that he shot across the road, not in the direction of the whisky car for the purpose of stopping a car following the whisky car in which Clyde Love, the brother of deceased, and two other men, were riding. Morrison claims that he fired at the wheels of the whisky car and that the load from his gun did not go above the wheels.

After the whisky car ran into the wall and was wrecked, Morrison and the sheriff went down there and found that R. K. Love, who was driving, had been killed, shot in the back with a load of heavy shot. The shot went through the rear curtain of the car, as clearly appears from the proof.

Clyde Love and the parties in the second car denied any connection with the whisky car in front of them, and, after stopping them and examining them, the sheriff told them to go on to town. He and Morrison

Although each of them, as seen, denies firing the shot which killed deceased, we think it fairly obvious from the proof that deceased must have been killed either by Morrison or by the sheriff. Morrison was indicted for this killing, but was tried and acquitted in the criminal court of Hamflton county.

The case was tried below when it was supposed that chapter 124 of the Acts of 1919 was a valid law. This statute made the transportation of three gallons of whisky or more a felony, and the defendants justified on the theory that it was permissible to kill Love to prevent the escape of one who had committed a felony.

Later this act was held unconstitutional by this court in the case of Walters v. State, December term 1920.

There has been much discussion in the case as to the protection afforded the sheriff and Morrison by the said statute subsequently held void. We think, however, these questions are not material in this case.

[1] In undertaking to bring this quantity of whisky along the public road into the city of Chattanooga, the deceased was violating the laws of the state and committing a public offense. The sheriff and his deputy without a warrant had the right to halt deceased and put him under arrest for this offense committed in their presence. Both of them testified that the sheriff ordered deceased to halt, but that, instead of doing so, he increased the speed of his car and drove right at them. The lights were shining on the sheriff and deceased probably knew who he was. That, however, is not material, for a private person would have been justified in arresting deceased under the circumstances. Thompson'sShannon's Code, § 7002.

[2] Section 6998 of Thompson's-Shannon's Code is as follows:

"When arresting a person, the officer shall inform him of his authority and the cause of the arrest, and exhibit his warrant if he have one, except when he is in the actual commission of the offense, or is pursued immediately after an escape."

Section 7003 of Thompson's-Shannon's Code relating to an arrest by a private person is in these words:

"He shall, at the time of the arrest, inform the person arrested of the cause thereof, except when he is in the actual commission of the offense, or when arrested on pursuit."

The deceased was not entitled to any notice of the cause of his arrest under these statutes, he being "in the actual commission of the offense," and, moreover, he

gave the sheriff and Morrison no oppor-ableness of the grounds upon which the oftunity to say anything to him before he ficer acted in killing, are questions for the drove at them and this would excuse them jury. 5 C. J. 425, and cases cited; Jackfrom giving him any notice before attempt- son v. State, 66 Miss. 95, 5 South. 690, 14 ing his arrest. Lewis v. State, 3 Head (40 Am. St. Rep. 542; note 17 Ann. Cas. 900. Tenn.) 127, 146.

[3] It follows that the attempt to arrest the deceased was lawful and he was not entitled to resist it. If he had succeeded in running down the sheriff and Morrison with his car and killed either of them, he would have been guilty of murder. Failing to accomplish his purpose, he was guilty of an assault with intent to commit murder.

"But the law does not allow that a lawful arrest is a provocation to passion and heat of blood. And, if the officer had the right, under the circumstances proven, to make the arrest, and was engaged, using no more force than was reasonably necessary, in accomplishing it, then the killing of him by the defendant would be murder; and the fact that the killing was in the heat of blood caused by a lawful arrest, would not reduce the offense to the grade of manslaughter." Galvin v. State, 6 Cold. (46 Tenn.) 283, 292.

[4] After the commission of this felony in their presence, the officers were entitled to use all necessary means to effect the arrest and stop the flight of deceased. Thompson's-Shannon's Code, § 7000; Lewis v. State, supra; and Galvin v. State, supra. In Reneau v. State, 2 Lea (70 Tenn.) 720, 31 Am. Rep. 626, the law is declared to be that in order to prevent the escape of one who has committed a felony, an of

[7] It is argued for the defendants that the sheriff cannot be held liable for the acts of Morrison in this affair, if it should appear that Morrison killed the deceased. We have fully considered the ingenious theory advanced, but think that it is opposed to our authorities.

The status of a sheriff and his deputies is very accurately set out by Chief Justice Neil as follows:

"Under our statutes (Shannon's Code, § 448) the sheriff of a county may appoint as many regular and special deputies as he may see proper. It is to be deduced from the section of the Code referred to and from our decisions upon the subject that the sheriff may appoint his deputies for such length of time, within his own term, as he may desire, and the compensation for his services may be arranged by contract between the sheriff and his deputy; that process does not run to the deputy, but to the sheriff, yet the deputy may execute any process so directed that comes to his hands, and he has all of the powers of the sheriff himself in respect thereof, yet if he be guilty of any default, the recourse of the injured party is not upon him, but upon the sheriff, and the latter may look to the deputy for reimbursement. Glasgow's Lessee v. Smith, 1 Tenn. 144, 152-155; Rose v. Lane, 3 Humph. 218220; Vance v. Campbell, 8 Humph. 527; Robertson v. Lessan, 7 Cold. 160; Reves v. State, 11 Lea, 124." State ex rel. v. Slagle, 115

ficer will be excused for killing him, if he Tenn. 337, 89 S. W. 326.

cannot be otherwise taken.

"The term 'escape' is not to be taken in its technical sense, which would imply, as is argued, that the person was previously in custody of the officer, and had eluded his vigilance. It must be understood in its popular sense, which is, 'to flee from, to avoid, to get out of the way,' etc." Lewis v. State, supra.

As will be seen from the foregoing a sheriff may appoint a deputy for such a length of time within his own term as may

be desired. We think the reasons which render a sheriff liable for the acts of his regular deputies apply with stronger force to the acts of a special deputy.

In the case before us the proof shows If, therefore, these officers could not oth- that the sheriff specially deputized Morerwise have stopped the deceased and ac- rison to go with him on this occasion to complished his arrest, they were within | accomplish this arrest. We think there is their rights in killing him. no doubt but that the sheriff and his sure[5, 6] It is argued for the defendants ty are liable for the acts of Morrison on that deceased could not have been other- this occasion. Estes v. Williams, 3 Tenn. wise stopped under the circumstances of (Cooke) 413; Todd v. Jackson, 3 Humph. the case. The plaintiff insists to the con- 398. trary. We forbear a discussion of the evidence, since we think this question should be settled by a jury. An officer has no absolute right to kill either to take, or prevent the escape of, a prisoner. If with diligence and caution the prisoner might otherwise be taken or held, the officer will not be justified for the killing, even though the The surety assigns errors here with refprisoner may have committed a felony.erence to its liability on the supposition Reneau v. State, supra. that the sheriff could only justify the kill

The case of Lunsford v. Johnston, 132 Tenn. 618, 179 S. W. 151, relied on by defendants, which announces the general rule that an officer is not liable for the acts of his deputies, plainly recognizes that an exception to the rule exists in the case of a sheriff and his deputies.

Whether or not there was a reasonable ing of Love under the unconstitutional statnecessity for the killing, and the reason- ute referred to. Since in our opinion this

(238 S.W.)

statute has no material bearing on the case, a period extending beyond minority under the these assignments of error are overruled. Workmen's Compensation Act.

For the reasons herein stated, the judgment of the Court of Civil Appeals is affirmed, and this cause remanded to the circuit court of Hamilton county for further proceedings in conformity to our opinion.

Error to Circuit Court, Davidson County; Chester K. Hart, Special Judge.

Proceeding by Robert Smith and wife under the Workmen's Compensation Act to obtain compensation for the death of their son, Robert Smith, Jr. Opposed by the Tennessee Chemical Company, the employer. There was an award of compensation, and the em

TENNESSEE CHEMICAL CO. v. SMITH ployer brings error. Affirmed.

et ux.

(Supreme Court of Tennessee. March 11,

1922.)

1. Master and servant 405 (4)—Finding of accidental death within Compensation Act sustained.

Levine & Levine, of Nashville, for plaintiff in error, Tenn. Chemical Co.

Thos. G. Watkins and Thos. H. Malone, both of Nashville. for defendants in error Smith.

MCKINNEY, J. This proceeding was inIn a proceeding under the Workmen's Compensation Act to obtain compensation for stituted by Robert Smith and wife, Roxie death of a servant, evidence held to sustain a Smith, against the plaintiff in error, Tenfinding that death was caused by accident. nessee Chemical Company, for the purpose arising out of and in the course of employment; of recovering compensation for the accibody of deceased being found in reservoir near dental death of their son, Robert, Jr., plant. while in its employ.

3. Master and servant 375(1)—Injury while washing after work held one "arising out of and in course of employment" within Compensation Act.

A servant, who fell into a reservoir and was drowned while washing up preparatory to going home according to custom, died as the result of an accident "arising out of and in the course of employment" under the Workmen's Compensation Act.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Course of Employment.]

4. Master and servant

412-Dependency within Compensation Act question of fact. Question of the dependency of a father and mother is one of fact under Workmen's Compensation Act, § 30, subsecs. 3, 3a, and a finding of dependency will not be disturbed if there is any evidence to support it.

5. Master and servant 405(5)-Finding of partial dependency within Compensation Act sustained.

In proceeding by parents under the Workmen's Compensation Act to obtain compensation for the death of 19 year old son, a finding that the parents were partial dependents held sustained by the evidence.

6. Master and servant

Their petition was filed in the circuit court of Davidson county, and alleged that the deceased met his death by accidental injury which arose out of and in the course of his employment by the company, and alleged that they were partially dependent upon dedeased for their support prior to and at the time of his death.

The circuit judge found these issues in favor of said petitioners, and the company has appealed to this court, and has assigned 13 errors.

No question is made as to the amount adjudged as compensation provided the company is liable for any sum.

It will be unnecessary to take up each assignment of error, since they may be grouped under three or four heads, and we will dispose of the questions raised by said The first question assignments of error. raised is that the death of Robert Smith, Jr., was not caused by accident arising out of and in the course of his employment by the company. This involves a brief statement of the facts.

near

The Tennessee Chemical Company is a corporation with its plant located Nashville. At the time of Smith's death, and for some years prior thereto, it was engaged in the manufacture of fertilizer. At the time deceased was killed he was employed by said company, and had been for about six years.

In the manufacture of fertilizer the com386(1)-Compensa- pany used water to cool its sulphuric acid tion to parents for minor son's death not chambers, and in the course of the process limited to minority. it became hot. This water so heated is Parents, who were partial dependents of piped from the plant to a reservoir into

a minor son, were entitled to compensation for which it sprays. Said reservoir is 60 feet

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
238 S.W.-7