ly asserted any claim to the property or its proceeds against the plaintiff. So it was said there was no conversion in law. This case was followed in the subsequent cases of Frizzell v. Rundle, 88 Tenn. 396, 17 Am. St. Rep. 908, 12 S. W. 918; Bank of Louisville v. Hill, 99 Tenn. 42, 41 S. W. 349, and Embry v. Galbreath, 110 Tenn. 297, 75 S. W. 1016. But there was an intermediate decision, Hughes v. Abston, 105 Tenn. 70, 58 S. W. 296, which, it is supposed, in effect overruled Roach v. Turk, since, although that case was not cited, nor apparently in the mind of the court, the result reached, in disposing of the first ground of demurrer

therein considered, could not have been attained if the principle laid down in Roach v. Turk had been recognized as authoritative. The complainants rely on Hughes v. Abston and Taylor v. Pope, treating the latter case as revived and rehabilitated as an authority by the former. They also rely upon the common-law authorities supporting those two cases, and many authorities from our sister states. The defendants rely upon Roach v. Turk and the cases based thereon.

In view of the very careful and elaborate consideration of the question in Roach v. Turk, and the solemn determination in that been held liable to the true owner of prop- | Am. Rep. 360, referred to and commented erty which they have sold for another: on in J. T. FARGASON Co. v. BALL. Swim v. Wilson, 90 Cal. 126, 13 L.R.A. It has been held that the true owner of 605, 25 Am. St. Rep. 110, 27 Pac. 33; Cer- property cannot hold the factor for the kel v. Waterman, 63 Cal. 34; Flannery v. conversion of the property, where he reHarley, 117 Ga. 483, 43 S. E. 765; Fort v.ceived it from a third person and sold it Wells, 14 Ind. App. 531, 56 Am. St. Rep. 316, 43 N. E. 155; Johnson v. Martin, 87 Minn. 370, 59 L.R.A. 733, 94 Am. St. Rep. 706, 92 N. W. 221; LaFayette County Bank v. Metcalf, 40 Mo. App. 494; Bereich v. Marye, 9 Nev. 312, 13 Mor. Min. Rep. 544; Miller Bros. v. Laws, 6 Ohio Dec. Reprint, 736; Hughes v. Abston, 105 Tenn. 70, 58 S. W. 296.

And the rule has been asserted that if factors or agents sell or intermeddle with the property of another, it is no answer to the claim of the true owner that they acted for another or under authority of another, who himself had no authority; it is their business to know the character of the persons with whom and whom they deal, and to see to it that their principals are able to protect them if their action in reference to the property bought or sold amounts to a conversion. Arkansas City Bank v. Cassidy, 71 Mo. App. 186. To the same effect is Everett v. Coffin, 6 Wend. 603, 22 Am. Dec. 551.

for

But in Abernathy v. Wheeler, 13 Ky. L. Rep. 730, citing Nash v. Page, 80 Ky. 544, 44 Am. Rep. 490, it is said that a public warehouseman assumes an obligation to serve the entire public. He is put upon the same footing with the innkeeper and common carrier, and has no right to refuse to receive and sell the tobacco of the purchaser or owner when shipped to him, hence he is not at his peril required to know of any defects in the consignor's title, the court remarked that "to say that he must know at his peril that the party from whom he sells is the owner or authorized consignor of the tobacco would, in effect, either operate to stop his business, or require him to place such a value upon his services as to make it onerous upon his customers." And this is also the doctrine of the Tennessee court as shown in J. T. FARGASON Co. v. BALL, and this rule apparently ap plies to agents generally in that jurisdiction. See Roach v. Turk, 9 Heisk, 708, 24'

for the latter in good faith and without knowledge of a defect in his title, and where he advances money to the consignor on the consignment, and after the sale credited him with the proceeds thereof. Bullitt v. Walker, 12 La. Ann. 276.

In Kempner v. Thompson, 45 Tex. Civ. App. 267, 100 S. W. 351, the rule is asserted that if the owner of property, by his own act, invests a third person with the indicia of ownership, thereby enabling him to impose upon a cotton broker and induce the latter to believe that he is the owner of the property, thereby securing an advancement upon it, the broker is protected to the extent of the advancement. It has been held that a tobacco warehouseman receiving tobacco to sell on commission, and not for storage, who sells the same and accounts to the consignor for the proceeds, is liable to a mortgagee of the tobacco holding under a duly recorded mortgage, although, in making the sale, the warehouseman acts in good faith and without knowledge of the mortgage. White v. Boyd, 124 N. C. 177, 32 S. E. 495.

Where notice is given such a warehouseman of the claim of a third person before the sale, or before the proceeds of the sale had been turned over to the consignor, unless the title of the true owner is then recognized, the factor or houseman becomes liable to him for the conversion of the property. Fields Bros. v. Blane, 18 Ky. L. Rep. 675, 37 S. W. 850.

ware

Where a factor at the time cotton is consigned to him for sale, or before he has paid over the proceeds of a sale to the consignor, is notified of rights therein superior to those of the consignor, he becomes liable to the holder of the superior rights, if he thereafter sells the cotton or turns over the proceeds to the consignor. Ledoux v. Anderson, 2 La. Ann. 558; Ledoux v. Cooper, 2 La. Ann. 586.

So, where a factor occupies the dual character of creditor and factor with reference to a shipment of goods to be sold

ease that Taylor v. Pope should be over- had been in this state long adjusted to it,ruled, the obvious hardship of holding a we say, in view of all of these consideramere agent, who had in good faith received tions, we should be unwilling, at this late property from and returned it or its pro- day, to formally overrule that case, or to ceeds to his principal, guilty of denying dissent from its doctrine, even if we were a right of which he had never heard, or of of the opinion that it was erroneously dewhich he had never had any legal notice, cided. It is almost as important that the and it not being shown that he was guilty law should be certain as that it should be of any negligence in not acquiring knowl-sound. The rule of stare decisis is one of edge, and in view of the fact that Roach commanding importance, giving, as it does,

v. Turk had been regarded as law for nearly thiry years when Hughes v. Abston was decided, and had been recognized in two published opinions, and the fact that the great line of business to which it applies by him for the shipper, and advances money to the consignor to apply on the shipment, although doing so upon faith of his ownership of the property, where he sells the property, but before applying the proceeds of the sale upon the indebtedness, he receives notice of the title in a stranger, he is liable to the latter for the proceeds of the sale. Moore v. Hill, 38 Fed. 330.

And a factor with knowledge of a claim of a third person, who sells the property and turns the proceeds over to the prineipal, if such third person is the true owner of the property, is liable to him for its conversion. Post v. Houston Rice Mill. Co. 35 Tex. Civ. App. 642, 80 S. W. 1025.

And it has been held that a cotton broker is liable in trover to the true owner of cotton, where he received and sold the cotton for a third person having no title or right thereto, and credited upon the account of such third person the proceeds of the sale. Kempner v. Thompson, supra.

So, where a tobacco warehouseman does not pay the proceeds of a sale to the consignor, but merely gives him credit therefor on account owing, the warehouseman is not thereby relieved from liability to the true owner for the conversion of the tobacco. Phelps v. Barkley, 19 Ky. L. Rep. 346, 40

S. W. 384.

firmness and stability to principles of law evidenced by judicial decisions, and so enabling the people to safely judge of their legal rights. Differentiations, distinctions, limitations, and advances must from time to no knowledge of the mortgage although it was duly recorded.

Where agent does not take manual possession of the property.

Many of the cases holding an agent liable to the true owner of property which he sells for his principal base his liability on the ground that a person who intermeddles with another's property must know that the persons for whom he is acting are the owners thereof and have the right to dispose of it. Thompson v. Irwin, 76 Mo. App. 418.

And it has been said that any distinct act of dominion over property in denial of the owner's right, or inconsistent with it, amounts to a conversion, and it is immaterial whether or not the person acted the principal is a wrongdoer, the agent is as agent or principal in the matter, for, if also. McPheters v. Page, 83 Me. 234, 23 Am. St. Rep. 772, 22 Atl. 101.

is to be found in Johnson v. Martin, 87 The logical sequence of this reasoning Minn. 370, 59 L.R.A. 733, 94 Am. St. Rep. 706, 92 N. W. 221, where the court distinguishes between the liability of an agent to the true owner for converting property, in cases where he comes into the actual possession of the property and upon selling the same for his principal turns the Commission merchants receiving cattle from the agent of the true owner, and sell-possession over to the purchaser, and in ing the same in the ordinary course of their commission business, without notice of want of title in their consignor, are liable to the true owner for a conversion of the property, where they refuse to give information as to the identity of the purchaser of the cattle, thereby preventing the true owner from having recourse to such purchaser. Cassidy Bros. & Co. v. Elk Grove Land & Cattle Co. 58 Ill. App. 39.

Compare with Greer v. Newland, 70 Kan. 315, 70 L.R.A. 554, 109 Am. St. Rep. 424, 77 Pac. 98, 78 Pac. 835, holding a com mission merchant receiving mortgaged personal property for sale, selling the same, and paying the proceeds to the consignor, not liable to the true owner in an action upon an implied contract, the tort being waived, the commission merchant having

cases where the agent does not take the manual possession of the property, but merely receives warehouse receipts therefor and acts for his principal in transferring these warehouse receipts to a purchaser of the property, as in the case of Leuthold v. Fairchild, 35 Minn. 99, 27 N. W. 503, 28 N. W. 218. In the Leuthold Case it is held that a bank which receives as consignee warehouse receipts from a warehouseman, and at his request transfers them to a third person, is not liable to the persons owning the property covered by the receipts, who had deposited the grain mentioned therein with the warehouseman, where it acts in good faith in the matter and without knowledge of these facts. But it has been held that a person in good faith acting as agent in receiving certificates of stock, who em

time be made, it is true, in order to keep | facts, and thus causing little, if any, shock the law in harmony with the common sense, to existing rights. Radical changes should common conscience, and common sense of be made by legislation only. Sometimes the justice of each succeeding age which it duty of overruling a former decision is imserves; but these should be so gradual that perative, but the power should be sparingly the new truly grows out of the old, as the exercised. product of a changing environment, being but the adaptation of old principles to new ployed a third person to sell the same for him, and received the proceeds of the sale and turned the same over to his principal, is not protected as against the true owner, where his principal had no title to or interest in the stock. Anderson v. Nicholas, 5 Bosw. 121, affirmed in 28 N. Y. 600, on the ground that the defendant purchased the stock, and was not a bona fide purchaser for value and without notice.

bile

prohibition to use automosufficiency.

2. The jury may find that a child had not been forbidden to run her father's automodirection that she should not do so was embile, notwithstanding his testimony that his phatic and positive, where he had permitted her to use it, and his testimony as to the actual instructions given show merely advice that she should not do so. Master and servant

tion of the mortgage in Arkansas, citing | sumption that the child was driving the Newsum v. Hoffman, 124 Tenn. 369, 137 S. vehicle for the owner. W. 490. In that case it was held that by Evidence comity a foreign mortgage, duly recorded in the foreign jurisdiction, and valid there, would, on removal of the property to this state without the consent of the mortgagee, protect the rights of such mortgagee here, as against one who purchased the property in Tennessee without knowledge of such foreign mortgage. The analogy would be complete if defendants were in possession of the property at the time complainant made demand therefor, or if they were in possession of its proceeds. On such a state of facts there is no doubt the complainant would have the right to recover. But the contest here is not over the property or its proceeds. The case cited, therefore, does not apply. Frizzell v. Rundle, supra.

The result is the Chancellor committed no error in dismissing the bill, and his decree must be affirmed, with costs.

Evidence
of child driving automobile
sumption.

automobile

child operating servant of father. 3. A daughter, in using her father's automobile for her own pleasure, is his servant in doing so, if he purchased and kept the automobile for the use of his family. Appeal admitting evidence

error

of liability insurance. 4. It is reversible error to admit, in an action to hold the owner of an automobile

liable for injury through collision with a pedestrian, evidence that he carried liability insurance, which is not cured by striking the evidence and directing the jury to disregard it.

Same evidence of refusal to settle.

motion to discharge jury pre

fect.

ef

1. The burden is upon a parent whose 6. A motion to discharge the jury bechild causes an injury while driving the cause of the admission of incompetent eviparent's automobile, to overcome the pre-dence is equivalent to a motion for new Note. — Liability where automobile is only the subsequent decisions upon the being used by a member of owner's point. family.

As to making prima facie case of responsibility for negligence of driver of automobile by proof of defendant's ownership of car or employment of driver, see note to White Oak Coal Co. v. Rivoux, 46 L.R.A. (N.S.) 1091.

As to liability to owner for injuries by automobile while being used by a servant or a third person for his own business or pleasure, see notes to Christy v. Elliott, 1 L.R.A. (N.S.) 215; Hayes v. Wilkins, 9 L.R.A. (N.S.) 1035; Jones v. Hoge, 14 L.R.A. (N.S.) 216; Danforth v. Fisher, 21 L.R.A. (N.S.) 93; Steffen v. McNaughton, 26 L.R.A. (N.S.) 382; Fleischner v. Dugen, 33 L.R.A. (N.S.) 79; Hartley v. Miller, 33 L.R.A. (N.S.) 81; Riley v. Roach, 37 L.R.A. (N.S.) 834; and Symington v. Sipes, 47 L.R.A. (N.S.) 662.

Probably a distinction exists between cases where the automobile inflicting the injury was kept by the parent expressly for the use and enjoyment of the family, and cases, like Parker v. Wilson, Ala. 43 L.R.A. (N.S.) 87, 60 So. 150, set out in the earlier note, where the car was kept by the parent for another purpose, as in the case referred to, for the owner's use in visiting his patients. In cases of the first class the fact that the car was apparently being used for the purpose for which it was expressly It will be noticed that in the note to kept tends in some degree to show that the which this note is supplementary it is operator was acting as agent or servant of stated that the mere existence of the rela- the owner.