Appeal from Circuit Court, Blount Coun- upon her credibility as a witness in this case." ty; S. C. Brown, Judge.

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

ry reasoning of Mr. Justice Cowan in People as claimed, that she induced a relationship v. Abbot, 19 Wend. (N. Y.) 192. This learn- that began when he was a boy and continued

ed judge contended that, inasmuch as the offense was always done in secret and commonly proved by the testimony of the prosecutrix alone, every fact ought to be received which tended to prove the absence on her part of the utmost reluctance and resistance to the connection. And, although the body of a harlot may, in law, no more be ravished than the person of a chaste woman, nevertheless it is true that the former is more likely than the latter voluntarily to have yielded.

on after she was married and up to the time of the alleged offense, would point most strongly in favor of her consent on this occasion. The rejection of the testimony for that purpose is very prejudicial.

Acts of sexual intercourse may always be proven between the prosecutrix and the defendant upon a trial for common-law rape prior to the alleged offense, for the purpose of raising an implication of consent. This has been held quite generally. Reg. v. Cockroft, 11 Cox C. C., 410; Reg. v. Riley, 16

Cox C. C., 191; Rex v. Martin, 6 Car & P.,
562; McQuirk v. State, 84 Ala. 435, 4 South.
775, 5 Am. St. Rep. 381; Rice v. State, 35
Fla. 236, 17 South. 286, 48 Am. St. Rep. 245;
Shirwin v. People, 69 Ill. 55; Bedgood v.
State, 115 Ind. 275, 17 N. E. 621; State v.
Cook, 65 Iowa, 560, 22 N. W. 675; State v.
Jefferson, 28 N. C. 305; State v. Reed, 39
Vt. 417, 94 Am. Dec. 337.

Later the New York court, in People v. Jackson, 3 Park, Crim. Rep. 391, disapproved of the holding in People v. Abbot, on the ground that the weight of authority was against it, and that the remarks of Justice Cowan were obiter dicta. These views of that learned judge have been emphatically approved in other cases. Our own court, in Titus v. State, adopted his argument, and said: "We deem this reasoning unanswerIt is here where the authorities divide. able on the question." The Vermont court, The sharp conflict in the decisions is over in State v. Johnson, 28 Vt. 512, expressly the competency of acts of intercourse beapproved the holding, as is done in Brennan tween the prosecutrix and other men than v. People, 7 Hun (N. Y.) 171; People v. Ben- the accused. There is a greater reason for son, 6 Cal. 221, 65 Am. Dec. 506; Watry v. Ferber, 18 Wis. 501, 86 Am. Dec. 789; Ford v. Jones, 62 Barb. (N. Y.) 484.

its introduction where the proof is of acts between the direct parties, but all acts, conversations, and admissions of the woman In State v. Patterson, 88 Mo. 88, 57 Am. tending to show that she is a prostitute, or Rep. 374, Sherwood, J., referred to Judge of easy virtue, should be admitted for the twofold purpose of showing her character as Cowan's opinion as having been criticized, but frequently followed, and that the reason-affecting her testimony, and also to raise an implication of her consent. ing of that case he had not seen answered, nor did he believe it could be.

After all, where opinions are in conflict, it is not so much the duty of a court to follow the greater number of decisions as it is to adopt the sounder reasoning. The opposite view has been sustained by some because it had the larger number of adherents. The best, and in fact the only valid, reason for this adherence is expressed by the Oregon court in the case of State v. Ogden, 39 Or.

195, 65 Pac. 449, as follows:

66* * While a prosecutrix, as a witness in an action of rape alleged to have been committed upon her, is expected to defend her general reputation for chastity, she cannot anticipate the charges of specific acts of illicit intercourse which may be made by men who perhaps have been suborned to testify. *

We admit that this affords reason for that view. But does it outweigh the other reason in favor of such proof, that a defendant charged with this capital crime should have the benefit of all facts which may show the probability of consent on the part of the woman? If her character is good, it will indeed be hard to successfully impeach it, and as a rule the effort will not be made. Former acts of this nature with other men might not indicate so much a probability of

The effect of the instruction of the trial judge to the jury on this subject was to re

ject, for the purpose of shedding light on the question of consent, not only acts with other men and boys, but the intimate relations testified to with the defendant.

The defendant in this case does not deny the act of carnal knowledge, but says that it was with her consent. This being the principal issue in the case, any previous acts upon her part testified to, if true, should be considered by the jury in coming to a conclusion as to whether she consented or not.

The court should have charged the jury that the evidence in question is proper and should be looked to, not only for the purpose of shedding light upon the credibility or standing of Mary Finger as a witness in the case, but also as an aid for the jury to determine whether the intercourse was by force or by her consent.

All the other assignments of error with respect to the admission of testimony and special requests to charge the jury are each and all overruled. We find no error on the part of the trial judge other than as set out in this opinion. We omit any other comment upon the testimony in the case, for the reason that it is to be again tried upon the

MENT-LIABILITY OF BAILEE.

rive special advantage therefrom, many of | 2. BAILMENT 12-ACCOMMODATION BAILits enterprises would fail. Parks, schools, bridges, and numerous other public works benefit chiefly the immediate section in which they are located. It cannot be said that a municipal improvement falls short of a corporate purpose because all its benefits are not, in fact, enjoyed by all the citizens in the same degree.

Plaintiffs delivered money and checks to defendant salesman to carry to another town and deposit to their credit. Being warned by the bookkeeper of the house for which the salesman traveled as to danger of carrying the money to his house, he made it his custom to deposit the funds in an iron safe of a drug company, because he arrived at the place of deposit after banking hours. A deposit against which the merchants notified him they had drawn was placed in the drug company's iron safe, and, when the salesman who had been othwith an article bailed will not work a converhad disappeared. Held that, as every parting sion, the salesman was not guilty of converting the fund, though he did not deposit it the earliest possible moment.

The improvement of a city's streets is an improvement of a public nature, an improvement of the city's own property, the enjoy-erwise engaged called for it two days later, it ment of which is not confined to adjacent property owners. That adjacent owners derive special advantage therefrom sufficient to justify the levy of a special assessment upon them does not alter the case. The work is still of a public character, and expenditures for the same are expenditures for a corporation purpose.

To deny the public character or the corporate purpose of work accomplished by local assessments would be to deny the power of a municipality to execute such an undertaking at all. Unless such work were for the public benefit or for a corporation purpose, citizens could not be required to submit to assessments on account thereof. The property of adjacent owners could not be so burdened against their will, however much it might be improved or enhanced in value. So we must conclude that the prosecution of this improvement work on its streets by the city of Bristol is for the benefit of the public, and that the use of the credit of the city for such work is for a legitimate corporation purpose, notwithstanding the fact that some property owners will be specially benefited.

The case of Colburn v. Railroad, 94 Tenn. 43, 28 S. W. 298, in no sense conflicts with the views herein expressed. In that case the county undertook to use its credit, as the court pointed out, for the purpose of becoming a stockholder and joint owner with the railroad company in proposed improvements. In this case the city of Bristol proposes to use its credit for the improvement of its own streets, of which it has exclusive

control.

[Ed. Note.-For other cases, see Bailment, Cent. Dig. §§ 37-41; Dec. Dig. 12.]

Certiorari to Court of Civil Appeals. Action by W. S. Ridenour and C. C. Ridenour, copartners, against William Woodward. On appeal to the Court of Civil Appeals, judgment was rendered for plaintiffs, and defendant brings certiorari. Decree of Court of Civil Appeals reversed, and cause dis

Woodward was a traveling salesman in the employ of Hackney & Co., a wholesale grocery establishment doing business in Jellico, and on his trips through the trade ter

ritory he was accustomed to call on and make sales to the complainant firm, the store of which was located at a small railway station about 16 miles out from Jellico, which store was in charge of C. C. Ridenour.

Ridenour had from time to time, for a period of nine months preceding the incident that occasioned this litigation, sent money and checks by Woodward to Jellico to be deposited to the firm's credit in bank. Wood

The chancellor correctly sustained the city's demurrer, and his decree will be af-ward made his trips from Jellico to the firmed, with costs.

RIDENOUR et al. v. WOODWARD. (Supreme Court of Tennessee. Oct. 9, 1915.) 1. BAILMENT 12 - ACCOMMODATION BAIL

MENTS-DEGREE OF CARE.

A bailee for the accommodation of the bailor is answerable only for his gross negligence or bad faith, the degree of care being measured, however, with reference to the nature of the article bailed.

[Ed. Note. For other cases, see Bailment, Cent. Dig. §§ 37-41; Dec. Dig. 12.] ·

complainants' store by the railroad. The train's schedule for the return trip called for arrival at Jellico at 7:20 at night, which was after banking hours. At the first Woodward began taking the money of complainant so intrusted to him to his home in the suburbs of Jellico, about one-fourth mile beyond the city limits and about one-half mile beyond the district where the streets were lighted; and the next day take the same to the bank for deposit or carry it to the establishment of Hackney & Co., his employers, and intrust it to the bookkeeper to be deposited in bank. Woodward was cautioned

by this bookkeeper that there was dangered out in public view, within a few steps of loss attending this method, and a change of the promiscuous crowd, before it was was made; Woodward taking the funds to passed to Estill. Shortly after Estill got some downtown store and depositing the upon the train, not far distant from the fair same in an iron safe commonly used for grounds, and soon after taking his seat disthe keeping of valuables. Several times he covered that his pocket had been picked. had used the safe of the Smith Drug Com- The ruling was that such parting of pospany for that purpose, and several times oth- session to Estill was a conversion since it er safes. He testifies, without contradiction, was unauthorized, and also that there was that he had not uniformly delivered the gross negligence shown by the circumstances. money from the safe to the bank on the day Accordingly, the Court of Civil Appeals next succeeding such lodgment, but that at held that the placing of the intrusted funds times he delayed doing so for a day or two. in an iron safe of another person was without authority and constituted a conversion by Woodward.

On the afternoon of July 22, 1912, which was Monday, C. C. Ridenour handed to Woodward for deposit the $400 in question, which was placed that night in the safe of Smith & Co. His business called him from Jellico on Tuesday morning before banking hours. He returned in due course of the business of his employers on Tuesday night after banking hours. On Wednesday morning he again went to the store of Smith & Co. without making inquiry as to the money, thence out of town on an early train for a short business trip, but returned to the city at 10:45, after the bank was opened, called at the drug store, and asked for the money that he had left there on Monday night, when on search of the safe it was discovered that the funds had disappeared. The testimony does not disclose what became of it, though it is found by both of the lower courts that it was not purloined by Woodward.

C. C. Ridenour informed Woodward at the time the funds were intrusted to him that he had drawn or was drawing checks on the bank against the same. Other facts are set out in the discussion which follows.

The Court of Civil Appeals held that Woodward was liable to respond as for a conversion of the funds so lost. We have granted the writ of certiorari in order to a review of that decree.

[1] The rule is that a bailee for the accommodation of the bailor is only answerable for his gross negligence or bad faith, the care to be taken by him to be measured, however, with reference to the nature of the thing placed in his keeping. Whitemore v. Haroldson, 2 Lea (70 Tenn.) 312; Hotel Co. v. Holohan, 112 Tenn. 214, 79 S. W. 113, 105 Am. St. Rep. 930, 2 Ann. Cas. 345; Marshall v. Railroad & Light Co., 118 Tenn. 254, 101 S. W. 419, 9 L. R. A. (N. S.) 1246, 12 Ann.

Cas. 675.

The Court of Appeals was of opinion that the holding in the case of Colyar v. Taylor, 1 Cold. (41 Tenn.) 372, controls this case. In that case Taylor had received from a bank in Nashville money for Colyar to be delivered gratuitously at Winchester. After receiving the money, he took it to the public fair grounds in the vicinity of Nashville, where he met one Estill, who was prevailed upon to take charge of and make the de

[2] It may be truly said that the earlier decisions go along rigid lines and show but slight, if any, disposition of the courts to indulge in inferences in favor of the bailee.

Clearly, it is not every parting with the possession by the bailee of the thing bailed that will work a conversion; there may be a parting that is qualified and temporary, evincing no intention on the part of the bailee to exercise a dominion over the same inconsistent with the right of the owner, but consistent with a further or continued control as to the delivery designated to be made by the bailee. Spooner v. Manchester, 133 Mass. 270, 43 Am. Rep. 514; Fouldes v. Willoughby, 8 M. & W. 540.

In Jenkins v. Bacon, 111 Mass. 373, 15 Am. Rep. 33, where the conclusion was a hard ruling of liability on the part of the defendant bailee charged with a conversion, it was yet conceded that:

If "for * * * sufficient reason it should become inconvenient or unsafe that he should would undoubtedly be at liberty to deposit it retain the manual possession of the bond, he in any other place or mode, in which he

*

* * might deposit his own property of the like description. But, as between the original depositor and himself, he would continue to be the lawful and responsible custodian, and bound to practice that degree of care which the law requires of gratuitous bailees."

The Court of Civil Appeals erred in not taking note of and following the trend of the modern authorities, which is to break away from the stern rules which many of the courts of England and of this country were at one time disposed to apply to acts of a bailee claimed to be a deviation, and therefore to effect a conversion.

Mr. Freeman in his annotations of the case of De Tollenere v. Fuller, 1 Mill, Const. (S. C.) 117, at 12 Am. Dec. 616, 621, after citing with approval our case of McNeill v. Brooks, 9 Tenn. (1 Yerg.) 73, said:

"It is certainly a hard rule to hold that slight acts of misuser, by a bailee, of the thing bailed, are to be regarded as evidence of a permanent appropriation of the property to his own use. Perhaps a more reasonable doctrine is that of a majority of the court in Harvey v. Epps, 12 Grat. (Va.) 153, etc."

Schouler, in his work on Bailments, remarks on this point that:

"The leaven of common sense, which keeps