Howard and Von Drake v. State. It results that the judgment of the criminal court of Hamilton county in these cases will be reversed, and the cases remanded for further proceedings not inconsistent with this opinion. Chattanooga Iron & Coal Co. v. Hanssard. CHATTANOOGA IRON & COAL COMPANY v. SAM F. HANSSARD (Knoxville. September Term, 1920.) APPEAL AND ERROR. Motion not spread on minutes nor included in bill of exceptions forms no part of record. A written motion for new trial with the transcript which appears to have been filed in the court below, but was not spread upon the minutes of the trial court and was not included in the bill of exceptions, forms no part of the record, and the action of the court thereon cannot be considered. Cases cited and approved: Railroad v. Egerton, 98 Tenn., 541; Railroad Co. v. Johnson, 114 Tenn., 632; Box Co. v. Gregory, 119 Tenn., 532; Allen v. State, 8 Tenn., 294. FROM HAMILTON. Appeal from the Circuit Court of Hamilton County.HON. OSCAR YARNELL, Judge. SIZER, CHAMBLISS & CHAMBLISS, for appellant. TATUM, THACH & LYNCH, for appellees. MR. JUSTICE GREEN delivered the opinion of the Court. The judgment in this case is affirmed because the record contains no motion for a new trial which we can notice. A minute order recites that a motion for a new trial was made and overruled. Along with the transcript is a writ Chattanooga Iron & Coal Co. v. Hanssard. ten motion which appears to have been filed in the court below. This motion, however, was not spread upon the minutes of the trial court nor was it included in the bill of exceptions. It therefore forms no part of the record. In Railroad y. Egerton, 98 Tenn., 541, 41 S. W., 1035, it was held that motions for a new trial must be incorporated in the minutes of the court. This holding was apparently affirmed in Railroad Co. v. Johnson, 114 Tenn., 632, 88 S. W., 166. In Box Co. v. Gregory, 119 Tenn., 537, 105 S. W., 350, it was held that under the provisions of chapter 106 of the Acts of 1875, a motion for a new trial might be preserved in the bill of exceptions if proper reference thereto and identification thereof was made in a minute order. This is as far as the court has gone and as far as the court can go. It was said in Box Co. v. Gregory that the better practice would be to set forth the whole motion on the minutes of the court. If this is not done, the motion must be included in the bill of exceptions, if it is to be relied on in this court. It has been held in Tennessee since Allen v. State, Mart. & Y., 294, that a memorandum of a motion made below and sent up with the transcript cannot be considered unless made a part of the bill of exceptions. The general rule in other jurisdictions is that a motion for a new trial must be incorporated into the bill of exceptions in order to be preserved for review on appeal. 14 Enc. Pl. & Pr., 967; 2 R. C. L., 127. For the reason stated, the judgment of the trial court is affirmed. Hale v. Sovereign Camp W. O. W. HALE v. SOVEREIGN CAMP WOODMEN OF THE WORLD. (Knoxville. September Term, 1920.) 1. PRINCIPAL AND AGENT. Agent's knowledge as to material fact imputable to principal. The knowledge of an agent as to a material fact bearing upon a contract which he is employed to solicit or negotiate on behalf of his principal is imputable to the principal. (Post, pp. 561, 562.) Cases cited and approved: Insurance Co. v. Sorrels, 60 Tenn., 352; Insurance Co. v. Hancock, 106 Tenn,, 513; Insurance Co. v. Whitaker, 112 Tenn., 151; Insurance Co., v. Fallow, 110 Tenn., 720; Knights of Pythias v. Cogbill, 99 Tenn., 28. Case cited and distinguished: Bennett v. Mass. Mutual Life Ins. Co., 107 Tenn., 371, 2. INSURANCE. Insurer estopped from relying on false report of its physician. Where applicant truthfully answers the questions propounded to him by insurer's physician and the physician inserts false statements in the blank furnished him and makes a false report to the insurer, and a policy is issued, the insurer is estopped from relying on such false report, to defeat action on the policy, since the physician's knowledge of the truth will be imputed to the insurer. (Post, pp. 563-566.) 3. INSURANCE. Insurer estopped from relying on falsity of representation of bogus application. Where bogus application was sent in through negligence of the insurer's agents without any fault of applicant, insurer is estopped from relying on falsity of statements in application, in action on policy; the negligence of the agents being imputable to the insurer, (Post, pp. 566-568.) Hale v. Sovereign Camp W. O. W. Case cited and approved. Insurance Co. v. Whitaker, 112 Tenn., 151. 4. INSURANCE. Fraternal benefit society may waive contract provisions notwithstanding local camp officers are precluded from so doing. A fraternal benefit society may waive the provisions of its contract with a member, notwithstanding by-laws and provisions of contract denying to a local camp or the officers thereof the power to waive provisions of contrarct. (Post, pp. 568, 569.) Cases cited and approved: Foresters v. Cunningham, 127 Tenn., 521; Simmons v. Sovereign Camp W. O. W., 136 Tenn., 233. 5. INSURANCE. Misrepresentations as to matters not contributing to insurer's death held not to defeat action on certificate. Representation that applicant had not consulted a physician during the preceding five years held insufficient to defeat action on benéfit certificate though during such time he had summoned a doctor during an attack of asthma from which he promptly recovered, and though during such time he had procured a prescription from a doctor to reduce his flesh at a time when he was not sick, where death was caused by influenza, since representations were as to matters which in no way constituted either directly or indirectly to his death. (Post, pp. 569, 570.) Cases cited and approved. Rand v. Life Assurance Society, 97 Tenn., 291; Insurance Co. v. Lauderdale, 94 Tenn., 642; K. of P. v. Rosenfeld, 92 Tenn., 508; Insurance Co. v. Wilkinson, 13 Wall., 230, 231; Conn. Mut. Life Ins. Co. v. Union Trust Co., 112 U. S., 250; Knights of Pythias v. Cogbill, 99 Tenn., 28; Rand v. Life Ins. Society, 97 Tenn., 291. FROM HAMBLEN. Appeal from the Chancery Court of Hamblen County. HON. SAM JOHNSON, Chancellor. |