Upload 100 files

tenn/10006858.json

@@ -0,0 +1 @@
+"{\"id\": \"10006858\", \"name\": \"Ray Dean BURGESS, Plaintiff/Appellant, v. Anthony S. HARLEY, Defendant, and Putnam County Highway Department and Putnam County, A Body Politic, Defendants/Appellees\", \"name_abbreviation\": \"Burgess v. Harley\", \"decision_date\": \"1996-07-10\", \"docket_number\": \"\", \"first_page\": \"58\", \"last_page\": \"69\", \"citations\": \"934 S.W.2d 58\", \"volume\": \"934\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Tennessee Court of Appeals\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T18:58:05.016885+00:00\", \"provenance\": \"CAP\", \"judges\": \"LEWIS, J., concurs.\", \"parties\": \"Ray Dean BURGESS, Plaintiff/Appellant, v. Anthony S. HARLEY, Defendant, and Putnam County Highway Department and Putnam County, A Body Politic, Defendants/Appellees.\", \"head_matter\": \"Ray Dean BURGESS, Plaintiff/Appellant, v. Anthony S. HARLEY, Defendant, and Putnam County Highway Department and Putnam County, A Body Politic, Defendants/Appellees.\\nCourt of Appeals of Tennessee, Middle Section, at Nashville.\\nJuly 10, 1996.\\nApplication for Permission to Appeal Denied by Supreme Court Oct. 28,1996.\\nErnest C. Onks, Sr., Ronald Thurman, Cookeville, for plaintiff/appellant.\\nDaniel H. Rader, III, Moore, Rader, Clift & Fitzpatrick, Cookeville, for defendant.\", \"word_count\": \"5749\", \"char_count\": \"35653\", \"text\": \"OPINION\\nKOCH, Judge.\\nThis appeal arises from a collision in which a motorist was injured when his vehicle was struck by a pickup truck that had entered an intersection without stopping at a stop sign. The injured motorist filed suit in the Circuit Court for Putnam County against the truck driver for failing to stop and against Putnam County for creating and maintaining a dangerous intersection. The trial court granted summary judgment for the county, and the injured motorist appealed. We have determined that Putnam County did not demonstrate that it is entitled to a judgment as a matter of law and, therefore, we vacate the summary judgment and remand the case.\\nI.\\nRay Burgess was traveling westward on Highway 70 in Putnam County on the morning of March 7, 1992. As he was passing through the intersection of Highway 70 and Hawkins-Crawford Road, the rear portion of his automobile was struck by a pickup truck being driven by Anthony Harley. Mr. Harley was driving north along Hawkins-Crawford Road and failed to heed the stop sign where Hawkins-Crawford Road intersected with Highway 70. The force of the collision flipped Mr. Burgess's automobile over, and Mr. Burgess was seriously and permanently injured.\\nHawkins-Crawford Road changes to a slight downhill grade as it approaches the Highway 70 intersection, thereby obscuring the surface of Highway 70 from motorists approaching from the south. A stop sign at the intersection was visible approximately 150 feet before the intersection despite some large trees on private property on the right shoulder of Hawkins-Crawford Road. In addition to a stop sign at the intersection, the county had erected a yellow \\\"stop ahead\\\" warning sign on Hawkins-Crawford Road approximately 440 feet before the intersection.\\nShortly after the collision, Mr. Harley told the investigating officer that his brakes failed \\\"approximately 50 to 75 yards\\\" before the intersection. He also told another acquaintance who had witnessed the collision that he had forgotten about the stop sign and that his brakes had failed. Later, after meeting with Mr. Burgess's lawyers, Mr. Harley stated in an affidavit and deposition that he did not recall seeing either the \\\"stop ahead\\\" sign or the stop sign and that it was too late to stop when he realized he was approaching the intersection.\\nMr. Burgess filed a personal injury action on March 5, 1993 against Mr. Harley, the Putnam County Highway Department, and Putnam County. On April 8, 1993, Putnam County moved for a summary judgment asserting that Mr. Harley's failure to obey the stop sign was the sole proximate cause of Mr. Burgess's injuries. At the hearing on its motion, Putnam County also asserted that it was entitled to summary judgment because of governmental immunity and because another suit Mr. Burgess had filed against Mr. Harley was still pending. The trial court granted Putnam County's motion for summary judgment on July 9,1993.\\nThis court dismissed the first appeal from the July 9, 1993 order for lack of a final judgment because the trial court had not disposed of Mr. Burgess's claim against Mr. Harley. On November 4, 1994, the trial court entered an order severing Mr. Burgess's claims against Putnam County from his claims against Mr. Harley and directing that its order constitute a final judgment with regard to Mr. Burgess's claims against Putnam County. This appeal followed.\\nII.\\nThe basic standards governing appellate review of summary judgments are now settled. Our task is confined to reviewing the record to determine whether the requirements of Tenn.R.Civ.P. 56 have been met. Payne v. Breuer, 891 S.W.2d 200, 201 (Tenn.1994); Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn.1991). A summary judgment is appropriate only when there is no genuine dispute of material fact with regard to the claim or defense asserted in the motion, Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993), and when the moving party is entitled to a judgment in its favor as a matter of law. Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn.1993).\\nNo presumption of correctness attaches to the trial court's findings in a summary judgment case. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). We must consider the evidence using the standard commonly associated with a motion for directed verdict made at the close of the plaintiffs proof. Gray v. Amos, 869 S.W.2d 925, 926 (Tenn.Ct.App.1993); Axline v. Kutner, 863 S.W.2d 421, 423 (Tenn.Ct.App.1993). Accordingly, we must view the evidence in the light most favorable to the non-moving party, Haynes v. Hamilton County, 883 S.W.2d 606, 613 (Tenn.1994); Speaker v. Cates Co., 879 S.W.2d 811, 813 (Tenn.1994), and we must also draw all reasonable inferences in the non-moving party's favor. Pittman v. Upjohn Co., 890 S.W.2d 425, 428 (Tenn.1994). We should not affirm a summary judgment if any doubt or uncertainty exists with regard to the facts or the conclusions to be drawn from the facts. Carvell v. Bottoms, 900 S.W.2d at 26; Byrd v. Hall, 847 S.W.2d at 211.\\nThe moving party has the initial burden of producing evidence to support its summary judgment motion. Byrd v. Hall, 847 S.W.2d at 213; Byrd v. Bradley, 913 S.W.2d 181, 183 (Tenn.Ct.App.1995). A party may move for summary judgment on' the ground that the opposing party will be unable to produce sufficient evidence at trial to withstand a motion for directed verdict. Byrd v. Hall, 847 S.W.2d at 213. However, the motion must be supported by more than a mere conclusory assertion that the plaintiff cannot prove its case. Lewter v. O'Connor Management, Inc., 886 S.W.2d 253, 255 (Tenn.Ct.App.1994). In order to satisfy its burden, the moving party must produce or point out evidence in the record which, if uncontradicted, entitles the movant to a judgment as a matter of law. Armes v. Hulett, 843 S.W.2d 427, 429 (Tenn.Ct.App.1992).\\nIII.\\nWe turn first to Putnam County's assertion that it is immune from suit under the Governmental Tort Liability Act because the stop sign at the intersection of Highway 70 and Hawkins-Crawford Road was on the State's right of way. While it is undisputed that the stop sign itself is owned and maintained by the State, Mr. Burgess's negligence action covers far more than the erection or maintenance of the stop sign. It asserts that the intersection itself and the portion of Hawkins-Crawford Road south of the intersection were defective, unsafe, and dangerous.\\nA.\\nLocal governments are not insurers against all accidents on their roads and streets. Helton v. Knox County, 922 S.W.2d 877, 883 (Tenn.1996); Swain v. City of Nashville, 170 Tenn. 99, 103-04, 92 S.W.2d 405, 406 (1936). They are, however, required to use ordinary care to keep their roads and streets in reasonably safe condition for the traveling public. Blackburn v. Dillon, 189 Tenn. 240, 243, 225 S.W.2d 46, 47 (1949); Bryant v. Jefferson City, 701 S.W.2d 626, 626-27 (Tenn.Ct.App.1985); Baker v. Seal, 694 S.W.2d 948, 950 (Tenn.Ct.App.1984). Accordingly, Tenn.Code Ann. \\u00a7 29-20-203(a) (Supp.1995) removes a local government's immunity from suit \\\"for any injury caused by a defective, unsafe, or dangerous condition of any street, alley, sidewalk or highway, owned and controlled by such governmental entity.\\\"\\nSuits brought pursuant to Tenn.Code Ann. \\u00a7 29-20-203(a) have three essential ingredients. First, the local government must own and control the location or instrumentality alleged to have caused the injury. Tenn. Code Ann. \\u00a7 29-20-203(a); Harris v. Williamson County, 835 S.W.2d 588, 590 (Tenn.Ct.App.1992) (county immune from suit because it did not own or control the allegedly defective traffic sign). Second, the location or instrumentality must be \\\"defective, unsafe, or dangerous.\\\" Tenn.Code Ann. \\u00a7 29-20-203(a). Third, the local government must have \\\"constructive and/or actual notice\\\" of the defective, unsafe, or dangerous condition. Tenn.Code Ann. \\u00a7 29-20-203(b).\\nLiability under Tenn.Code Ann. \\u00a7 29-20-203(a) may be predicated on street signs or traffic control devices that cause or contribute to a defective, unsafe, or dangerous condition. Tenn.Code Ann. \\u00a7 29-20-203(a); Fretwell v. Chaffin, 652 S.W.2d 755, 757 (Tenn.1983); Swafford v. City of Chattanooga, 743 S.W.2d 174, 177 (Tenn.Ct.App.1987). A local government's decision whether to erect traffic control or safety devices may be immune from suit under the discretionary function exception in Tenn.Code Ann. \\u00a7 29-20-205(1). However, the failure to maintain or to complete the installation of traffic control devices may result in liability when a defective, unsafe, or dangerous condition is thereby created. Kirby v. Macon County, 892 S.W.2d at 409; Fretwell v. Chaffin, 652 S.W.2d at 757 (allowing vegetation to obscure a traffic control sign); Swafford v. City of Chattanooga, 743 S.W.2d at 177 (failure to finish painting lane markings).\\nB.\\nOwnership and Control of the Intersection\\nPutnam County's principal governmental immunity argument is that it is immune from suit because it did not own or control the stop sign at the intersection of Highway 70 and Hawkins-Crawford Road. This undoubtedly true fact is not outcome determinative, however, because Mr. Burgess's claims against Putnam County are not limited to the placement, erection, or maintenance of the stop sign itself. His claims involve the entire intersection and the southerly approach to the intersection.\\nPutnam County has not disputed that it owns and controls all the portions of Hawkins-Crawford Road other than the State's right of way around Highway 70. Its employees conceded in their affidavits and depositions that the county had control over Hawkins-Crawford Road from \\\"ditch to ditch\\\" and that the State's right of way only extended thirty-three feet from the center of Highway 70. The employees also stated that they mowed the shoulders of Hawkins-Crawford Road twice a year, that they placed a \\\"stop ahead\\\" sign on Hawkins-Crawford Road in the early 1980s, and that they had modified the intersection at approximately the same time. At this stage of the proceedings, these admissions provide sufficient factual basis to conclude that the county owns and controls the location where the allegedly dangerous condition exists.\\nC.\\nThe Defective, Unsafe, or Dangerous Condition\\nThe second ingredient to a cause of action under Tenn.Code Ann. \\u00a7 29-20- 203(a) is a defective, unsafe, or dangerous condition. Determining whether the condition of a road or street is dangerous or hazardous is a factual inquiry. Helton v. Knox County, 922 S.W.2d at 882; Goodermote v. State, 856 S.W.2d 715, 723 (Tenn.Ct.App.1993). The inquiry should include consideration of (1) the physical aspects of the roadway, (2) the frequency of accidents at the particular location, and (3) the testimony of expert witnesses. Sweeney v. State, 768 S.W.2d 253, 255 (Tenn.1989).\\nMr. Burgess offered two types of proof with regard to the condition of the intersection and Hawkins-Crawford Road. First, he presented the affidavits of three persons who are living or who had lived adjacent to the intersection. Second, he presented the affidavit of a traffic engineer containing the engineer's opinion concerning the dangerousness of the intersection. Putnam County insists that these affidavits should not be considered because they contain testimony that would not be admissible at trial. See Tenn.R.Civ.P. 56.05. We disagree.\\nOne of Mr. Burgess's affidavits was prepared by Dr. James E. Clark, a professor of civil engineering at Clemson University. According to the resume attached to his affidavit, Dr. Clark specializes in transportation and traffic engineering and has taught graduate level courses in highway safety engineering. Dr. Clark has published articles on traffic control systems and is a member of the Institute of Traffic Engineers and the Transportation Research Board. The affidavit states that Dr. Clark has first-hand knowledge of the intersection because he has inspected it personally. These facts are sufficient to establish that Dr. Clark is competent to give an expert opinion in this ease.\\nRather than paraphrasing Dr. Clark's affidavit, we note the following excerpt:\\nWhen viewed by a driver traveling in a northward direction, Hawkins-Crawford Road drops with a downward grade as it intersects with U.S. Highway 70. On the other side of U.S. Highway 70, Hawkins-Crawford Road rises on an upward grade and continues northward as Plunk Whitson Road. These elevation changes on Hawkins-Crawford Road conceals [sic ] the intersection with U.S. Highway 70 and creates [sic] the illusion to the driver that Hawkins-Crawford Road continues northward. Because of this illusion, it is important to warn the driver about this intersection and alert the driver to stop. A series of large trees on the right shoulder of Hawkins-Crawford Road as it approaches U.S. Highway 70 prevents the approaching driver from seeing the stop sign until the driver is approximately 150-160 feet from the intersection. This does not provide adequate stopping sight distance for a speed limit of 45 M.P.H. Approaching the intersection of U.S. Highway 70 by traveling in a northward direction, a driver must be warned of this approaching intersection in time to safely stop his vehicle. The existing stop sign and stop ahead warning sign do not adequately warn the driver.\\nIn addition to Dr. Clark's affidavit, Mr. Burgess provided the trial court with the affidavits of two persons currently living adjacent to the intersection and one person who lived adjacent to the intersection from 1968 to 1978. Each of these persons described the difficulty that approaching motorists had in seeing the intersection and the stop sign. They also recounted frequent incidents of vehicles skidding on gravel and \\\"screeching\\\" their brakes when attempting to stop at the intersection. They also stated that there had been frequent personal injury and property damage accidents at the intersection, and many occasions when vehicles attempting to stop had driven into their ditches and through their fences.\\nThe residents' testimony is based on their personal knowledge and is relevant and material to the question of whether the intersection is dangerous or unsafe. At this stage of the proceedings, we must view this evidence in a light most favorable to Mr. Burgess, and we must draw all reasonable inferences in Mr. Burgess's favor. When viewed in this light, the affidavits offered by Mr. Burgess establish a genuine factual dispute concerning whether the intersection of Highway 70 and Hawkins-Crawford Road is unsafe or dangerous.\\nD.\\nNotice to Putnam County\\nA local government cannot be found liable for a dangerous condition on a road or street unless it had actual or constructive notice of the condition. The evidence before the trial court when it considered the motion for summary judgment raises several genuine issues concerning whether Putnam County had actual or constructive notice that the intersection of Highway 70 and Hawkins-Crawford Road is hazardous or dangerous.\\nThe record contains no proof concerning when the intersection was first constructed or who designed it. There is likewise no proof concerning whether Hawkins-Crawford Road existed before Highway 70 or vice versa. The record contains evidence that the intersection was modified in the early 1980s, but the nature and extent of these modifications is in dispute. The county asserts that the intersection was modified substantially, while a resident who lives adjacent to the intersection states that it has remained \\\"essentially unchanged since 1967.\\\"\\nThe record contains evidence that the county had actual notice of the intersection's condition. George Shanks, who lives adjacent to the intersection, stated in an affidavit that he had discussed the condition of the intersection with the former county highway superintendent and had even offered to give the county an easement over his property to correct the problem. Sheila Shanks provided an affidavit stating that she and seventy-five to eighty other county residents signed a petition requesting the county to correct the problems with the intersection. Frances Wilson, who lived adjacent to the intersection for ten years, stated in her affidavit that she had contacted the highway road superintendent repeatedly about the dangerous condition of the intersection.\\nIn addition to these citizen complaints, Putnam County was also named as a defendant in two suits as a result of another collision at the intersection in May 1980. These suits alleged that the intersection was dangerous and that the county had notice of the dangerous condition. Along with these complaints, the lawyer representing one of the plaintiffs sent a letter to the county executive stating that there was a \\\"dangerous illusion\\\" at the intersection and that \\\"there . [was] no advance warning sign, advising motorists of this dangerous intersection.\\\" The letter also alluded to the county highway department's awareness of the problem \\\"because of many, many complaints by citizens.\\\"\\nThe incumbent county road officials disclaimed any knowledge of problems at the intersection and asserted that they did not maintain records of citizen complaints. Responses based on sloppy record keeping and short memories do not effectively rebut allegations of actual notice under the governmental tort liability act. If anything, they create a genuine factual dispute concerning whether the county had actual or constructive notice of the condition of the intersection which would prevent granting the county a summary judgment on the ground that it did not have actual or constructive notice.\\nPutnam County also insists that the complaints the former county officials might have received concerned the condition of the intersection before the modifications in the early 1980s and were, accordingly, irrelevant to the current condition of the intersection. This argument would be well-taken if the modifications made in the early 1980s substantially altered the intersection and if the citizens' complaints predated the modifications.\\nWe have already noted that there is a genuine factual dispute concerning the nature and extent of the modifications to the intersection. In addition, at least two of the affidavits submitted on behalf of Mr. Burgess recount complaints that appear to have been made after the modifications were complet ed. We cannot conclude at this juncture that all Mr. Burgess's evidence concerning the complaints to the county highway officials about the condition of the intersection is irrelevant. Accordingly, we must conclude that there exists a material factual dispute concerning the county's notice of the condition of the intersection.\\nWhen viewed in a light most favorable to Mr. Burgess, the record contains genuine factual disputes concerning whether the city had or should have had actual or constructive knowledge of the dangerous condition at the intersection. These disputes, taken together with the factual dispute concerning whether the intersection was dangerous and unsafe, lead to the conclusion that Putnam County is not entitled to a judgment as a matter of law with regal'd to its defense to Mr. Burgess's action based on the Governmental Tort Liability Act.\\nIV.\\nPutnam County also asserts that it is entitled to a judgment as a matter of law because the condition of the intersection could not have been the proximate cause of Mr. Burgess's injuries. It portrays Mr. Harley's brake failure as either the sole proximate cause or as the superseding, intervening cause of the collision. Thus, the failure of Mr. Harley's brakes is pivotal to the county's motion. We have determined that there is a genuinely disputed factual issue with regard to the nature and extent of the brake failure on Mr. Harley's truck and, therefore, that the county was not entitled to a summary judgment on the question of causation.\\nA.\\nDespite their utility and value, summary judgments can never be used to replace a trial when material facts are genuinely disputed. Blocker v. Regional Medical Ctr., 722 S.W.2d 660, 663 (Tenn.1987); Poore v. Magnavox Co., 666 S.W.2d 48, 49 (Tenn.1984). Summary judgments should not be used to find facts, to resolve factual disputes, or to choose among various permissible factual inferences. Byrd v. Hall, 847 S.W.2d at 216. Thus, courts should not weigh the evidence in summary judgment proceedings, Byrd v. Hall, 847 S.W.2d at 211; Bellamy v. Federal Express Corp., 749 S.W.2d 31, 33 (Tenn.1988), and likewise, they should not make credibility determinations. Byrd v. Hall, 847 S.W.2d at 212 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986)); McDowell v. Moore, 863 S.W.2d 418, 421 (Tenn.Ct.App.1992); Citizens Sav. Bank & Trust Co. v. Hardaway, 724 S.W.2d 352, 355 (Tenn.Ct.App.1986). The courts must deny a motion for summary judgment if any doubt exists with regard to the facts or the conclusions to be drawn from the facts. Byrd v. Hall, 847 S.W.2d at 211; Gambill v. Middle Tenn. Medical Ctr., Inc., 751 S.W.2d 145, 147 (Tenn.Ct.App.1988).\\nB.\\nMr. Harley has given two essentially different accounts of the condition of his brakes and his ability to stop at the intersection. Immediately after the accident, he told the investigating officer and an eyewitness that his brakes had totally failed. In fact, he told the officer that his brakes failed not once, but twice, and that his transmission or clutch \\\"locked up\\\" or \\\"messed up.\\\" Faced with these mechanical failures, he stated that \\\"the only thing I could think to do was to try to cut right or go straight. I tried to make a little effort to cut the wheel and it started to jump and I just went ahead and let it [the truck] go and it went straight across.\\\"\\nMr. Harley's description of the condition of his brakes changed during the course of the next year. In April 1993, Mr. Burgess's lawyers asked him to sign an affidavit to oppose the county's motion for summary judgment. On this occasion, Mr. Harley stopped short of admitting that he had total brake failure and stated for the first time that he was too close to the intersection to stop by the time he saw the stop sign. On this occasion, he stated:\\n4. I was proceeding northward between the railroad and U.S. Highway [70] at or around the speed of 45 miles an hour when suddenly I saw a Stop Sign and U.S. Highway 70 and applied my brakes. The brakes went way down and the pickup slowed up but not enough to stop me as I was too close to the highway by the time I could see the Stop Sign.\\n5. The Hawkins Crawford Road looked like it continued straight on without ever seeing U.S. Highway 70 which is an optical illusion.\\nMr. Harley was deposed six weeks after preparing his affidavit and was asked to explain the discrepancies between his affidavit and his statements at the scene of the collision. In a classic effort to be a witness for all seasons, Mr. Harley explained that he had told the trooper and the eyewitness that his brakes had failed but that his statements at the scene might not have been \\\"exactly correct\\\" and that he \\\"was claiming fault because [he] . felt so bad over what had happened.\\\" He continued to insist that he did not have enough time to stop by the time he saw the stop sign and the intersection. However, he could not remember if he saw the stop sign or the stop ahead sign and could not explain why he did not see them other than to say that he was concentrating on the road. He also attempted to further distance himself from his original brake failure explanation using inadmissible hearsay statements attributed to the investigating trooper.\\nMr. Harley's credibility has been seriously undermined. We would not second-guess the trial court's decision to give his testimony no weight if this were an appeal from a bench trial. This is, however, an appeal from a summary judgment. Notwithstanding Mr. Harley's practically insurmountable credibility problems, his different accounts of the events immediately before the collision give rise to a genuine factual dispute concerning the condition of his brakes and their effect on his ability to avoid the accident. Resolving these issues now would require us to weigh the evidence and to judge Mr. Harley's credibility \\u2014 two things we cannot do in a summary judgment proceeding.\\nThe fact that Mr. Harley faces almost certain impeachment with his prior inconsistent statements is of little practical significance. Mr. Harley has not yet testified, and in light of the inconsistencies in the statements he has already made, we cannot reliably predict what his testimony at trial will be. Thus, we have no way to determine which of Mr. Harley's prior statements might be used to impeach him at trial. If he testifies that his brakes, transmission, and clutch failed, Mr. Burgess's lawyers will attempt to impeach him using the statements in his affidavit and deposition. If, on the other hand, he testifies that his brakes only partially failed and that he did not see the intersection and stop sign in time to stop, Putnam County's lawyers will impeach him with his statements to the investigating officer and the eyewitness.\\nThe chief purpose of using a prior inconsistent statement at trial is to undermine the witness's credibility. Cohen et al., supra note 11, \\u00a7 613.1, at 406. Prior inconsistent statements need not be admissible as substantive evidence in order to be admissible for the purpose of impeachment. These statements may, however, also be considered as substantive evidence if they qualify for admission under one of the rules of evidence. Jones v. Lenoir City Car Works, 216 Tenn. 351, 356, 392 S.W.2d 671, 673 (1965) (the prior inconsistent statement of a party is admissible as an admission against interest); Tenn.R.Evid. 808(1.2) (admission by a party-opponent); Cohen et al., supra note 11, \\u00a7 613.1, at 406.\\nEvidence used to support or to oppose a motion for summary judgment must consist of \\\"such facts as would be admissible in evidence.\\\" Tenn.R.Civ.P. 56.05. This rule does not require that the facts be admissible as substantive evidence, and thus an affidavit or deposition containing statements admissible for the purpose of impeachment may be considered in a summary judgment proceeding. Koehler v. Haechler, 27 Wis.2d 275, 133 N.W.2d 730, 733 (1965); Lidster v. Jones, 176 Ga.App. 392, 336 S.E.2d 287, 288 (1985). Rather than being used to create material factual disputes, these statements are being used to demonstrate that the credibility of a pivotal witness is in question and thus that the determination of the issue should be left to the jury. Summary judgments, after all, should only be granted based on evidence that the fact-finder would not be at liberty to disbelieve. Knapp v. Holiday Inns, Inc., 682 S.W.2d 936, 942 (Tenn.Ct.App.1984); Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 624, 64 S.Ct. 724, 727, 88 L.Ed. 967 (1944).\\nMr. Harley's statements concerning the condition of his brakes are admissible both for the purpose of impeachment and as substantive evidence because they are admissions by a party-opponent under Tenn. R.Evid. 803(1.2). His varying accounts of the nature and extent of his brake failure will require the fact-finder to determine his credibility and to determine whether a causal connection exists between the collision and the condition of his brakes.\\nc.\\nIn order to be a proximate cause of an injury, a negligent act or omission must have been a substantial factor in bringing about the injury. Boling v. Tennessee State Bank, 890 S.W.2d 32, 36 (Tenn.1994); McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn.1991). An injury may be proximately caused by more than one negligent act or omission. Kelley v. Johnson, 796 S.W.2d 155, 159 (Tenn.Ct.App.1990); Stokes v. Leung, 651 S.W.2d 704, 708 (Tenn.Ct.App.1982). Thus, a negligent act or omission need not be the sole cause of an injury to be a proximate cause. McClenahan v. Cooley, 806 S.W.2d at 775; Lancaster v. Montesi, 216 Tenn. 50, 57, 390 S.W.2d 217, 221 (1965). Each person whose negligence is a proximate cause of an injury may be independently hable for the injury. McClenahan v. Cooley, 806 S.W.2d at 775.\\nForeseeability is an important consideration in determining whether an act or omission is a legal cause of an injury. An act or omission will not be considered a proximate cause of an injury if a reasonable person could not have foreseen or anticipated the injury. McClenahan v. Cooley, 806 S.W.2d at 775. By the same token, a later negligent act will not be considered a superseding, intervening cause of an injury if it was reasonably foreseeable consequence of an earlier negligent act. Speaker v. Cates Co., 879 S.W.2d 811, 815 (Tenn.1994); Doe v. Linder Constr. Co., 845 S.W.2d 173, 178 (Tenn.1992); Evridge v. American Honda Motor Co., 685 S.W.2d 632, 635 (Tenn.1985); Goodermote v. State, 856 S.W.2d at 722.\\nCausation questions are fact-sensitive and require that the evidence be reviewed in light of logic, common sense, policy, and precedent. Wyatt v. Winnebago Indus., Inc., 566 S.W.2d 276, 280 (Tenn.Ct. App.1977). These questions are normally left to the fact-finder unless the undisputed facts and the inferences drawn from the facts permit a reasonable person to draw but one conclusion. Haynes v. Hamilton County, 883 S.W.2d 606, 612 (Tenn.1994); McClenahan v. Cooley, 806 S.W.2d at 775; Evridge v. American Honda Motor Co., 685 S.W.2d at 635.\\nThe present record contains material factual disputes concerning whether the intersection was dangerous, whether the county had actual or constructive notice of the intersection's condition, and whether the condition of Mr. Harley's brakes caused the accident. In light of these factual disputes, we cannot concur with the trial court's conclusion that Mr. Harley's brakes were either the sole proximate cause or the superseding, intervening cause of the collision as a matter of law. These causal questions should be decided by the fact-finder.\\nV.\\nWe vacate the summary judgment for Putnam County and remand the case for further proceedings. We also tax the costs of this appeal to Putnam County.\\nLEWIS, J., concurs.\\nHENRY F. TODD, P.J., M.S., concurs in separate Opinion.\\n. Putnam County and the Putnam County Highway Department will be collectively referred to as \\\"Putnam County\\\" or as simply \\\"the county.\\\"\\n. Mr. Burgess filed a personal injury action against Mr. Harley alone on March 2, 1993. The lawyer representing Mr. Burgess in the present case questioned the authority of the lawyer who filed the prior suit to represent Mr. Burgess. Putnam County did not press the issue, and the trial court did not treat it as controlling or dis-positive.\\n. Burgess v. Harley, App. No. 01A01-9312-CV-00519 (Tenn.Ct.App. Dec. 13, 1993).\\n. Mr. Burgess has specifically and repeatedly disclaimed that he is predicating Putnam County's liability on Tenn.Code Ann. \\u00a7 29-20-205 (1980) which waives governmental immunity for injuries caused by the negligent acts or omissions of local governmental employees. Liability under Tenn.Code Ann. \\u00a7 29-20-203(a) is independent from liability under Tenn.Code Ann. \\u00a7 29-20-205. Helton v. Knox County, 922 S.W.2d at 885; Kirby v. Macon County, 892 S.W.2d 403, 406 (Tenn.1994). Thus, Putnam County's arguments based on the requirements of Tenn.Code Ann. \\u00a7 29-20-205 are of little relevance in this case.\\n. Helton v. Knox County, 922 S.W.2d at 886-87 (decision to retain wooden paddle boards and stone curbs on a bridge rather than installing metal guardrails); Kirby v. Macon County, 892 S.W.2d at 408 (decision to install wooden wheel guards instead of standard metal guardrails); Butler v. City of Dyersburg, 798 S.W.2d 776, 782 (Tenn.Ct.App.1990) (decision to install traffic control devices).\\n. This resident's affidavit may not be relevant since the county modified the intersection after she moved away. We cannot make a relevancy determination at this stage of the proceeding because we lack proof concerning the nature and extent of the changes in the intersection between 1978 and 1992.\\n. The lawyer who wrote this letter is now one of the lawyers representing Mr. Burgess.\\n. The affidavit of the resident who lived next to the intersection from 1968 to 1978 and the notice provided by the 1980 lawsuits appear to have predated the modifications to the intersection.\\n. Mr. Harley, in his own words, stated:\\nI was coming down Hawkins-Crawford Road, going to make a right on [Highway] 70. I had approximately 50 to 75 yards about where that oak tree is from the road I went to apply my brakes and they went all the way to the floor. I went to apply them again, they still went to the floor . I knew I wasn't going to be able to stop all I could think of was trying to gear down \\u2014 put my truck in neutral; I went to put it in second; wouldn't go; transmission locked up or clutch just messed up or something.\\n. Mr. Harley claimed that the trooper told him \\\"later that he went to my vehicle and worked on the brakes, applied the brakes, and that they went about two-thirds of the way to the floor.\\\" Mr. Harley's testimony is inadmissible hearsay and cannot be considered for the purpose of this summary judgment proceeding. See Tenn. R.Civ.P. 56.05.\\n. Prior inconsistent statements may only be used to impeach a witness's trial testimony. They may not be used to impeach statements in depositions or affidavits that are not repeated at trial. Doochin v. United States Fidelity & Guar. Co., 854 S.W.2d 109, 114 (Tenn.Ct.App.1993); Neil P. Cohen et al., Tennessee Law of Evidence \\u00a7 613.2, at 407-08 (3d ed. 1995).\\n. There are, of course, practical limits to the admissibility of inconsistent statements. Factual disputes must be \\\"genuine\\\" in order to prevent a summary judgment. Accordingly, courts have refused to permit a party to create an issue of fact merely by preparing an affidavit contradicting the party's prior sworn testimony. Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969); Baker v. A.H. Robins Co., 613 F.Supp. 994, 996 n. 3 (D.D.C.1985). The Eastern Section reached the same result by finding that two inconsistent statements canceled each other out and, therefore, had no probative value. Price v. Becker, 812 S.W.2d 597, 598 (Tenn.Ct.App.1991).\"}"

tenn/10008701.json

@@ -0,0 +1 @@
+"{\"id\": \"10008701\", \"name\": \"STATE of Tennessee, Appellant, v. Carolyn J. CLARK, Appellee\", \"name_abbreviation\": \"State v. Clark\", \"decision_date\": \"1992-12-07\", \"docket_number\": \"\", \"first_page\": \"597\", \"last_page\": \"601\", \"citations\": \"844 S.W.2d 597\", \"volume\": \"844\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-11T01:09:15.590600+00:00\", \"provenance\": \"CAP\", \"judges\": \"REID, C.J., and O\\u2019BRIEN, DAUGHTREY and ANDERSON, JJ., concur.\", \"parties\": \"STATE of Tennessee, Appellant, v. Carolyn J. CLARK, Appellee.\", \"head_matter\": \"STATE of Tennessee, Appellant, v. Carolyn J. CLARK, Appellee.\\nSupreme Court of Tennessee, at Nashville.\\nDec. 7, 1992.\\nCharles W. Burson, Atty. Gen., and Reporter, Kimbra R. Spann, Asst. Atty. Gen., Nashville, for appellant.\\nDale M. Quillen, Richardson R. Lynn, Nashville, for appellee.\", \"word_count\": \"2071\", \"char_count\": \"12846\", \"text\": \"OPINION\\nDROWOTA, Justice.\\nThis search and seizure case concerns the admissibility of evidence discovered after a warrantless entry of a home. Specifically, we address the effect of an unconstitutional entry and subsequent arrest on the admissibility of evidence later seized from the home pursuant to a search warrant.\\nOn August 13, 1987, Detective Donald Hargrove of the Metropolitan Police Department Auto Theft Division received an anonymous phone call stating that two stolen Lincoln automobiles could be found outside apartment N-269 of the 2131 Apartments in Nashville. The caller also advised that Carolyn Clark, the Defendant here, would be in possession of the cars.\\nBased on this information, Detective Donald Pugh, also of the Auto Theft Division, obtained the theft reports on two Lincoln Town Cars taken from Budget Rent-A-Car and the two detectives proceeded to the 2131 Apartments. There, they discovered two Lincoln Town Cars with dashboard Vehicle Identification Numbers matching those listed on the theft reports. After proceeding to the apartment manager's office and verifying that the Defendant Carolyn Clark resided in Apartment N-269, the detectives returned to the parking lot where they observed a young man, later identified as Defendant Carolyn Clark's adult son, who did not live at the apartment, walking away from the vicinity of the Lincolns. The detectives followed this individual to apartment N-269, where, according to Detective Hargrove, the following exchange took place:\\nSo we went to that apartment and knocked on the door and the young man came to the door, and we asked if Carolyn Clark was there. And he said, no. So we asked him if he lived there. And he said, no, that Carolyn Clark was his mother, and his name was Freddie Clark. So Detective Pugh said, well, we're inquiring about these two Lincoln Town Cars out here. Could you tell me anything about them? Mr. Clark said, well, the maroon one I've been driving for the last two weeks. . Mr. Pugh informed him that that was a stolen car and that he would be charged with having that car in his possession.\\nDetective Pugh testified that Freddie Clark stepped back as he opened the door whereupon the detectives identified themselves and, without asking permission, entered the apartment. Detective Pugh also testified: \\\"When we actually questioned him, we were just inside the apartment door, the front door of the apartment, kind of a foyer type area.\\\" Detective Hargrove described, the officers' position as being \\\"just inside the door, just a step or so.\\\"\\nAfter Freddie Clark admitted driving one of the Lincolns, the detectives placed him under arrest.\\nSometime during their conversation with Mr. Clark, the detectives noticed a rifle in a comer of the living room and numerous purses, car keys, and credit cards sitting on a bar that separated the dining and kitchen areas. After Freddie Clark's arrest, Detective Pugh did a \\\"walk-through\\\" of the apartment to ascertain if anyone else was present. One of Defendant's daughters had been present and visible throughout the questioning; the walk-through uncovered no others. However, shortly after this walk-through, an apartment security guard arrived and told the detectives an individual had recently run out the back door of the apartment, gotten in a car with Carolyn Clark, and left the scene.\\nBackup officers were then called and the apartment secured while Detective Har- grove left to obtain a search warrant. Several hours later Detective Hargrove returned with the warrant and the ensuing search resulted in the seizure of numerous incriminating items. Defendant was eventually apprehended and brought to trial on charges of forgery, passing forged papers, larceny, and receiving stolen property.\\nDefendant moved the trial court for suppression of the seized evidence on the ground the initial entry had been unlawful. The trial court denied the motion to suppress, finding that Mr. Clark's arrest had been made with probable cause, was therefore valid, making the protective sweep and the later search of the apartment valid. At trial, Defendant was convicted and sentenced to 25 years in the Department of Correction.\\nOn appeal, the Court of Criminal Appeals reversed, holding that the evidence should have been suppressed. Based on the reasoning set forth below, we affirm the intermediate court's suppression of the evidence seized from Defendant's apartment.\\nI.\\nWe begin by scrutinizing the entry, by the detectives, of the Defendant's home.\\nThe Fourth Amendment to the United States Constitution provides in part that \\\"[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.\\\" In Payton v. New York, the United States Supreme Court reaffirmed the basic principle of Fourth Amendment jurisprudence that warrantless searches and seizures inside a home are presumptively unreasonable. 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). Unequivocally stated: \\\"In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.\\\" Id. at 590, 100 S.Ct. at 1382 (emphasis added). Further, \\\"Payton did not draw the line one or two feet into the home; it drew the line at the home's entrance.\\\" United States v. Berkowitz, 927 F.2d 1376, 1388 (7th Cir.), cert. denied, \\u2014 U.S. -, 112 S.Ct. 141, 116 L.Ed.2d 108 (1991).\\nThe State has not attempted to satisfy its heavy burden of showing that exigent circumstances justified the warrant-less arrest. See Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984) (noting that the Court has actually applied only the \\\"hot pursuit\\\" exigent circumstance to arrest in the home). Nor has the State satisfied its burden of proving that Mr. Clark freely and voluntarily consented to the detectives' entry. When Mr. Clark answered the door, the detectives merely identified themselves and entered the apartment. Contrary to the State's assertion, Mr. Clark's action in stepping back from the door was not an invitation for the officers to enter. Consent to enter and search a home will not be lightly inferred, nor found by mere acquiescence to unlawful authority. See United States v. Shaibu, 920 F.2d 1423, 1426 (9th Cir.1990) (citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791-92, 20 L.Ed.2d 797 (1968)).\\nThere being no consent, and there being no exigent circumstances, the police had no basis to enter the home without a search warrant. Consequently, the detectives had no right to enter the apartment. Because they did, they violated Defendant's Fourth Amendment right to be secure in her home against unreasonable searches and seizures.\\nII.\\nHaving determined the entry violated the Fourth Amendment, we turn to an examination of the effect of this violation on the admissibility of evidence subsequently discovered in the apartment.\\nThe exclusionary rule may operate to bar the admissibility of evidence directly or derivatively obtained from an unconstitutional search or seizure. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963); Silverthome Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920) (limited by United States v. Havens, 446 U.S. 620, 624, 100 S.Ct. 1912, 1915, 64 L.Ed.2d 559 (1980)). However, it has long been recognized that evidence obtained by means genuinely independent of the constitutional violation is not subject to' the exclusionary rule. See Wong Sun, 371 U.S. at 487, 83 S.Ct. at 417; Silverthome, 251 U.S. at 392, 40 S.Ct. at 183. This \\\"independent source doctrine\\\" rests upon the policy that \\\"while the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied.\\\" Murray v. United States, 487 U.S. 533, 542, 108 S.Ct. 2529, 2535, 101 L.Ed.2d 472 (1988).\\nPursuant to this doctrine, an unconstitutional entry does not compel exclusion of evidence found within a home if that evidence is subsequently discovered after execution of a valid warrant obtained on the basis of facts known entirely independent and separate from those discovered as a result of the illegal entry. See Segura v. United States, 468 U.S. 796, 813-14, 104 S.Ct. 3380, 3390, 82 L.Ed.2d 599 (1984). Further, even \\\"plain view\\\" evidence observed during the warrantless entry will not be excluded so long as (1) the evidence is later discovered during a search pursuant to a valid warrant, (2) this valid warrant was obtained without reference to evidence uncovered during the illegal search, and (3) the government agents would have obtained the warrant even had they not made the illegal entry. See Murray, 487 U.S. at 543, 108 S.Ct. at 2536.\\nIn order for the subsequent warrant and search to be found genuinely independent of the prior unconstitutional entry, the second Murray requirement mandates that information obtained during the illegal entry may not have been presented to the issuing Magistrate. See id. at 542, 108 S.Ct. at 2536. Here, this factor is determinative.\\nDetective Hargrove, in his affidavit for a search warrant, stated he \\\"knocked on the apartment door & the male white, Michael F. Clark, answered the door & when asked about the Lincolns admitted driving the Maroon one for the past several weeks.\\\" It is inescapable that the search warrant was thus obtained partly on the basis of statements obtained during the detectives' unconstitutional entry.\\nThat these statements, obtained as part and parcel of the illegal entry, may not be used to establish the genuine independence of the subsequent search warrant is clear from the United States Supreme Court's decision in New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990). There, although declining to suppress statements made outside the home following a Payton violation, the Court stated: \\\"The principal incentive to obey Payton still obtains: the police know that a warrantless entry will lead to the suppression of any evidence found or statements taken inside the home.\\\" 495 U.S. at 20, 110 S.Ct. at 1644 (emphasis added).\\nBecause the second Murray requirement is not met, the exclusionary rule precludes admission of evidence seized from Defendant's home subsequent to violation of her Fourth Amendment rights. Accordingly, the judgment of the Court of Criminal Appeals is affirmed and the case remanded to the trial court. Costs of this appeal are taxed to the State.\\nREID, C.J., and O'BRIEN, DAUGHTREY and ANDERSON, JJ., concur.\\n. Because we find no effective consent, we do not reach the question whether the detectives could have reasonably believed that Mr. Clark had authority to consent to a search of his mother's home. See Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990).\\n. Detective Hargrove's entire affidavit states:\\nOn several occasions, of which all were reported to Police, cars were leased from Budget Rent-a-Car with stolen credit cards. These cases were assigned to the Auto Theft division for follow-up investigation. Your af-fiant (Don Hargrove, a veteran Police Officer of 16 yrs, specializing in this field) has been working on these cases & received an anonymous telephone call this date, August 13, 1987, that four (4) stolen cars could be located at the above described address. These cars were described by the caller as: One Lincoln Town car, color Maroon, one Lincoln Town car, color Tan, one Z-28, color Red and one Cadillac, color White. Your affiant has confirmed that three of the four cars are stolen. Your affiant, along with other detectives, went to the above described location & did find three of the four vehicles described herein. On arrival, your affiant observed a Male white walk away from the maroon Lincoln & enter apartment N-269. Your affiant knocked on the apartment door & the male white, Michael F. Clark, answered the door & when asked about the Lincolns admitted driving the Maroon one for the past several weeks. When asked about the keys to the above described vehicles, he (Clark) said he didn't know where they were. Considering the totality of the circumstances described herein, your affiant would therefore pray that a search warrant be issued for the recovery of said stolen property, and that the same be brought before this court as provided by law.\\n/s/ Donald Hargrove\"}"

tenn/10009474.json

@@ -0,0 +1 @@
+"{\"id\": \"10009474\", \"name\": \"STATE of Tennessee, Appellee, v. David Edward HOWINGTON, Appellant\", \"name_abbreviation\": \"State v. Howington\", \"decision_date\": \"1995-10-09\", \"docket_number\": \"\", \"first_page\": \"403\", \"last_page\": \"411\", \"citations\": \"907 S.W.2d 403\", \"volume\": \"907\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T20:10:59.388470+00:00\", \"provenance\": \"CAP\", \"judges\": \"ANDERSON, C.J., and DROWOTA, REID and WHITE, JJ., concur.\", \"parties\": \"STATE of Tennessee, Appellee, v. David Edward HOWINGTON, Appellant.\", \"head_matter\": \"STATE of Tennessee, Appellee, v. David Edward HOWINGTON, Appellant.\\nSupreme Court of Tennessee, at Nashville.\\nOct. 9, 1995.\\nCharles W. Burson, Attorney General & Reporter, Kimbra R. Spann, Assistant Attorney General, Nashville, for Appellee.\\nGregory D. Smith, Clarksville, for Appellant.\", \"word_count\": \"4698\", \"char_count\": \"29431\", \"text\": \"OPINION\\nBIRCH, Justice.\\nThe district attorney general refused to honor an informal immunity agreement made with David Edward Howington, the defendant. The reason stated for this refusal was the prosecutor's perception that How-ington had not fulfilled his part of the bargain; that is, he had not testified truthfully at his preliminary hearing. He was subsequently tried and convicted of first-degree (felony) murder; he received a life sentence.\\nThe Court of Criminal Appeals affirmed the conviction; we granted Howington's application for review under Rule 11. At issue is whether the agreement between Howing-ton and the district attorney general is enforceable and, if so, to what extent and with what result.\\nFor the reasons discussed below, we hold that informal agreements between a prosecutor and a defendant are judicially enforceable. In so holding, we expressly overrule Bruno v. State, 192 Tenn. 244, 240 S.W.2d 528 (1951), to the extent that it can be read as precluding judicial enforcement of immunity agreements under all circumstances. Accordingly, we reverse the conviction for first-degree murder.\\nI\\nAs for the salient facts, including those which by motion the defendant requests that we consider, the record indicates that Tony DeVito and the defendant had information that Michael Trobaugh, the victim, had recently received a large sum of money and desired to purchase a quantity of marijuana. DeVito, a supplier of marijuana, and the defendant planned to fill the victim's marijuana order and to rob him of his money at the same time. In their discussion, DeVito suggested that they \\\"leave no witnesses.\\\"\\nSeveral hours later, the victim led the defendant and DeVito to his trailer and invited them in. Once inside, the victim produced a large sum of cash that he intended, apparently, as payment for the marijuana. As the parties were so situated, and at a time when the defendant was seated next to the victim in the living room, DeVito stood behind the victim and shot him in the head. DeVito and Howington, grabbing the cash and the vie-tim's wallet, fled. Unaware, apparently, that Howington had already taken a substantial amount of the victim's money, DeVito gave him $500 of the contraband and admonished him to \\\"keep [your] mouth shut.\\\" Trobaugh died from the wound inflicted.\\nThe perpetrators then went to DeVito's house where they burned blood-stained items of their clothing, washed the blood from the money, and cleaned the firearm.\\nBefore the preliminary hearing, the district attorney general and the defendant, through counsel, entered into an unwritten agreement. In exchange for Howington's truthful testimony at his preliminary hearing, the district attorney general agreed to recommend that he be bound to the grand jury on second-degree murder instead of the original charge of first-degree murder. Additionally, the district attorney general agreed to recommend the defendant's release on an appearance bond in the amount of $50,000. Apparently, the State needed Howington's testimony to bolster its case against DeVito. At his preliminary hearing, the defendant testified; he fully incriminated DeVito \\u2014 he fully incriminated himself.\\nIn his testimony, the defendant stated that he had received only the $500 DeVito had given him. However, other evidence adduced during the preliminary hearing suggested that the defendant had ended up with approximately $4,500 of the victim's money. Although the district attorney general accepted as true Howington's testimony in every other particular, he concluded that How-ington had lied about the amount of the victim's money he had received. Acting on this conclusion, the district attorney general considered the State no longer bound by the agreement, and he so informed the defendant. Neither of the agreed recommendations was made, and the magistrate bound Howington to the grand jury on the charge of first-degree murder. Subsequently, the grand jury indicted Howington on first-degree murder \\u2014 both felony and premeditated.\\nIn a pretrial motion, Howington sought to prevent his preliminary hearing testimony from being admitted into evidence at his trial on the ground that it had been \\\"impermissi-bly compelled\\\" and was, therefore, not \\\"voluntary.\\\"\\nFollowing a hearing, the trial court characterized the incriminating portion of the testimony as a \\\"confession.\\\" The trial court ruled that it had been voluntarily obtained and was, therefore, admissible. The trial court found also that Howington had not fulfilled a \\\"condition precedent\\\" of the agreement \\u2014 that he testify truthfully. As a result of this ruling, Howington's preliminary hearing testimony was admitted as a part of the State's case-in-chief during Howington's jury trial for first-degree murder. As stated, the jury convicted Howington of first-degree (felony) murder.\\nOn appeal to the intermediate court, How-ington insisted that the trial court erred in permitting the State to introduce, in its casein-chief, his preliminary hearing testimony on the ground that the State had obtained it by promise of reward. The intermediate court considered Howington's insistence and concluded that the trial court erred in allowing his preliminary hearing testimony to be admitted in the trial because \\\"the behavior of the state's law enforcement officials was such as to overbear petitioner's [Howington's] will to resist and bring about confessions not freely self-determined.\\\" Nevertheless, in light of the other evidence, the court found the error harmless beyond a reasonable doubt.\\nBefore this Court, Howington advances three contentions: First, he invites us to overrule Bruno and, by so doing, to authorize the judicial enforcement of agreements such as the one here pertinent. Second, he contends that the perceived untruthful testimony was not a sufficient reason for the State's refusal to honor the agreement. Third, he insists that were we to reject his first two contentions, we should find that the admission of his testimony was reversible error.\\nThe State, on the other hand, argues that sound policy reasons support Bruno, and it should not be overruled. Additionally, the State contends that Howington breached the agreement in a material way and is not entitled, therefore, to relief. Moreover, the State insists that admission of the testimony was proper because it had been voluntarily given.\\nFor the reasons herein discussed, we hold that agreements between defendants and prosecutors are enforceable in much the same way as other contracts. This holding requires that we overrule Bruno. We do that now. Further, we find that Howington reasonably fulfilled his part of the agreement with the predictable result that DeVito's conviction, as Howington's, was aided, if not procured, through the State's use of Howing-ton's testimony.\\nII\\nAs stated above, the issue we now address is whether the agreement is enforceable. Because our analysis of this issue provides relief for Howington, we need not reach the issue of the admissibility of his preliminary hearing testimony.\\nThe traditional rule in Tennessee is that informal immunity agreements are not enforceable. See Bruno v. State, 192 Tenn. 244, 240 S.W.2d 528 (1951); State v. Johnson, 781 S.W.2d 873 (Tenn.Crim.App.1989). In Bruno, which involved an informal immunity agreement between the defendant and a police officer, the Court reasoned:\\n\\\"In the absence of a statute providing for immunity, the fact that a participant or accomplice in the commission of a crime testifies or agrees to testify on behalf of the prosecution, fully and fairly disclosing the guilt of himself and his associates, with the understanding or promise, express or implied, that he will be granted a pardon or will not be prosecuted for his offense does not entitle him to a pardon or immunity as a matter of right; and such facts may not be pleaded in bar of a prosecution.\\\" We have no such statute in this State granting immunity to an accomplice who gives the State aid in the prosecution or apprehension of his co-workers in crime.\\n240 S.W.2d at 530 (citation omitted). However, the Court implied that had the district attorney general made a promise that was within his or the court's authority, the agreement would have been enforceable. The Court stated:\\nNormally, where such a promise is made in good faith and the party who then cooperates and gives the State the necessary assistance the district attorney general may with the consent of the trial court take care of the matter, but when it has not been done in this way the only thing that we know that can be done is that the Chief Executive must be convinced that this is a case for the lending of his pardoning power.\\nId. at 531. Thus, while concluding that informal immunity agreements are not enforceable, the Court alluded to circumstances under which they would be.\\nAlthough the facts in Bruno involve a pure immunity agreement between an accused and a police officer, the Court of Criminal Appeals found that the reasoning therein also supported the rule as applied to an agreement with a district attorney general. State v. Johnson, 781 S.W.2d 873 (Tenn.Crim.App.1989). In Johnson, the district attorney general signed an immunity agreement with the defendant providing, among other things, for immunity from state homicide charges in return for truthful cooperation. The court held that under Bruno \\\"an 'immunity agreement' of this nature is of no legal effect.\\\" Id. at 879.\\nThus, traditionally, immunity agreements of the sort here considered have generally been unenforceable in Tennessee. In recent years, however, both state and federal prosecutors have resorted to the use of cooperation-immunity agreements in ever-increasing numbers. In this respect, these agreements, as do plea agreements, have a significant role in the prosecution of those accused of crime. By resorting to such agreements, prosecutors are often able to use agreements with \\\"minor actors\\\" to move against \\\"major actors.\\\" Without this tool, prosecutors would often be unable to prosecute some of the worst and most dangerous offenders.\\nPlea agreements, unlike immunity agreements, have been treated as contracts and are enforceable once the condition precedent is met; that is, the trial judge accepts the agreement. State v. Street, 768 S.W.2d 703 (Tenn.Crim.App.1988); Metheny v. State, 589 S.W.2d 943 (Tenn.Crim.App.1979). This is consistent with basic contract principles that an agreement does not become binding until the condition precedent has been met. See Covington v. Robinson, 723 S.W.2d 643 (Tenn.Ct.App.1986); Strickland v. City of Lawrenceburg, 611 S.W.2d 832 (Tenn.Ct.App.1980).\\nWe find no substantive difference between a plea agreement and the charge agreement we have here. Both agreements enhance the State's efforts to prosecute crime. Both types of agreements may require a defendant to give up important rights, such as the right to trial by jury or the right against self-incrimination. Here, Howington surren dered the constitutional right against compelled self-incrimination. At the preliminary hearing stage, no discernable urgency existed for Howington to testify. The magistrate could have, and more likely would have, bound him over on the original charge anyway; that is, without his testimony. Obviously, the big winner was the prosecution, for it received much of the evidence necessary to convict both Howington and DeVito, irrespective of the truth or falsity of Howington's testimony as it regards the amount of money he received.\\nWe note with approval that a number of other jurisdictions recognize immunity agreements as contractual in nature and enforceable under the principles of contracts. United States v. Fitch, 964 F.2d 571 (6th Cir.1992) (\\\"To secure a defendant's cooperation in a criminal investigation, the government may informally grant him immunity in exchange for his testimony. An agreement not to prosecute is contractual in nature, and subject to contract law standards.\\\") (citations omitted); see also United States v. Pelletier, 898 F.2d 297 (2d Cir.1990); United States v. Packwood, 848 F.2d 1009 (9th Cir.1988); United States v. Brown, 801 F.2d 352 (8th Cir.1986); United States v. Reardon, 787 F.2d 512 (10th Cir.1986); United States v. Irvine, 756 F.2d 708 (9th Cir.1985); Closson v. State, 812 P.2d 966 (Alaska 1991); State v. Myrhow, 262 Mont. 229, 865 P.2d 231 (1993); 22 C.J.S. Criminal Law \\u00a7 85 (1989) (\\\"Grants of immunity pursuant to statute are not the only method of acquiring immunity, but courts also recognize informal agreements whereby promises of immunity are made in exchange for cooperation_ A cooperation-immunity agreement is in the nature of a contract and subject to contract law standards\\\").\\nThe State argues that Bruno should not be overruled because \\\"the content of verbal agreements 'will provide a prolific source of litigation.' \\\" We observe that this predicted problem, if it ever materializes, is easily solved by reducing such agreements to writing. Additionally, we are not persuaded that this is a sufficient reason to allow the State to break its bond of public trust, a subject upon which the Indiana Supreme Court has so eloquently articulated:\\nWe recognize that the public may benefit substantially from a prosecutor's decision to withhold prosecution of one individual in exchange for information leading to the arrest and conviction of a person deemed more dangerous to the public welfare. The availability and usefulness of this strategy eould be substantially neutralized if the prosecutor's promise is perceived to be unreliable. Substantial harm could result from a decision which removes this weapon from the prosecutor's arsenal.\\nFurthermore, the promise of a state official in his public capacity is a pledge of the public faith and is not to be lightly disregarded. The public justifiably expects the State, above all others, to keep its bond.... \\\"It is important for all segments of our society to believe that our court systems dispense justice. This includes the criminals themselves as well as the law abiding citizens, and especially those criminals who have cooperated fully in police investigations.\\\"\\nBowers v. State, 500 N.E.2d 203, 204 (Ind.1986) (quoting Dube v. State, 257 Ind. 398, 275 N.E.2d 7, 11 (1971)) (citations omitted) (emphasis added). We embrace these principles.\\nFor the above reasons, we hold that an agreement between a prosecutor and a defendant is contractual in nature and is enforceable under the law of contracts. Accordingly, Bruno v. State, 192 Tenn. 244, 240 S.W.2d 528 (1951), and its progeny are overruled.\\nIll\\nWe now consider whether Howington met his obligation under the agreement. For the State to prevail on this issue, it must prove that Howington failed to deliver on his part of the deal. But what are the evidentiary burdens in this regard?\\nThis issue has been considered by the Texas courts. In its analysis of the defense of immunity the Texas Court of Criminal Appeals stated:\\n[ W]e do not agree . that immunity is a defense under the Code of Criminal Procedure. We do agree that it is analogous to one. The initial burden is on the defendant to show the existence of an agreement by a preponderance of the evidence. Tummy v. State [40 Tex.Crim. 561], 51 S.W. 243 (Tex.Crim.App.1899). In this respect it differs from ordinary defenses where the defendant is only required to raise his defense by producing some evidence. However, once the initial burden is met and the existence of an immunity agreement is shown by a preponderance of the evidence, we hold that; procedurally, immunity should be treated just like a defense under the Code. Thus, the burden then shifts to the State to show beyond a reasonable doubt why the agreement is invalid or why prosecution should be allowed despite the agreement.\\nZani v. State, 701 S.W.2d 249, 254 (Tex.Crim.App.1985). In the Zani case, the prosecution argued that the defendant was not entitled to enforce the immunity agreement because she violated the term of the agreement which provided that \\\"she did not directly cause the death of' the victim. Id. at 251. In arriving at its holding, the court observed that\\n[ t]o place upon the State any lesser burden creates a rather anomalous situation. For example, in the instant case, if the State was only held to a preponderance standard to prove the violation of the immunity agreement, it is quite possible that the State could produce sufficient evidence to void the agreement and thus prosecute, but insufficient to obtain a conviction. The State could prove by a preponderance of the evidence that appellant \\\"directly\\\" caused the death of Dess, but could not prove this beyond a reasonable doubt. However, they could easily prove she was a party to the offense. In such a case the State could invalidate the immunity agreement at the pre-trial hearing making it void and non-binding and then obtain a conviction for being a party to murder, an offense for which immunity was originally granted.\\nId. at 254 n. 3.\\nWe agree with the reasoning of the Texas court and adopt the burden of proof standard set forth in its opinion. Thus, in order for the State to prevail in this case, it must prove beyond a reasonable doubt that Howington failed to deliver on his part of the deal. The State contends first that it is excused from performance because Howing-ton failed to satisfy a condition precedent to its performance; that is, he failed to testify truthfully. See Restatement (Second) of Contracts \\u00a7 225 (1981) (\\\"Performance of a duty subject to a condition cannot become due unless the condition occurs or its nonoccurrence is excused.\\\").\\nWe begin with the agreement itself. The basic agreement appears to be that the State agreed to recommend to the magistrate that Howington's case be bound over to the grand jury on second-degree murder and that his bond be reduced to $50,000, all in return for Howington's truthful testimony. The State insists that its duty to perform was conditioned upon Howington's truthful testimony. Howington and his attorney insist that no language of condition was used when the agreement was made. They support this insistence by pointing out that were the agreement conditional, they would not have so readily agreed, as it required Howington to waive his right against self-incrimination.\\nThe following principles guide our decision: First, in contract law there is a general preference against finding a term to be a condition precedent. Specifically, the Restatement says,\\nIn resolving doubts as to whether an event is made a condition of an obligor's duty, and as to the nature of such an event, an interpretation is preferred that will reduce the obligee's risk of forfeiture, unless the event is within the obligee's control or the circumstances indicate that he has assumed the risk.\\nRestatement (Second) of Contracts \\u00a7 227. In this case, the circumstances do not indicate that Howington assumed the risk. Also, while the State contends that the condition was Howington's truthful testimony, which Howington controlled, we find that the actual condition it urges is its own subjective assessment of Howington's testimony. This condition is not controlled by Howington. Thus, we find there was no condition precedent in the agreement between the State and Howington. Or rather, the condition was simply that Howington testify against De-Vito, which he did.\\nSecond, this agreement is different from the average commercial contract as it involves a criminal prosecution where due process rights must be fiercely protected. Thus, we hold that ambiguities in the agreement must be construed against the State. See United States v. Pelletier, 898 F.2d 297, 302 (2d Cir.1990). It results that the State must be held to a high evidentiary standard as it attempts to avoid an agreement made with an accused where the accused has already acted in reliance on the agreement. We find that the State has not carried its burden to show that the agreement was understood by all parties to be conditional upon the State's subjective determination that the defendant's testimony was \\\"truthful.\\\"\\nNext the State argues that it is relieved from its duty to perform because How-ington committed a material breach. The conditions which will constitute a breach of the immunity agreement are governed by the agreement. United States v. Fitch, 964 F.2d 571, 574 (6th Cir.1992) (citing United States v. Packwood, 848 F.2d 1009, 1012 (9th Cir.1988)).\\nUnder the agreement, Howington's failure to testify truthfully could constitute a breach. In this instance, the State maintains that Howington lied regarding the amount of money he received from the robbery.\\nDespite the State's contention, the record suggests that Howington kept the bargain. The critical exchange follows:\\nQ (by State): Let me ask what else took place between you and him at his house immediately prior to the phone call to Kathy?\\nA: Well, before we called her, I took my coat off. He [DeVito] said, \\\"Take your coat off because there is blood on it here.\\\" He said, \\\"Let's burn it\\\", [sic] you know, he took his boots off and burned it. He took Mike's wallet out and just started burning everything.\\nQ: Were you ever given any of the money?\\nA: Yes, I was. He gave me five hundred dollars to keep my mouth shut.\\nPressing further, the State urges that the testimony of Kathy Dalton to the effect that when Howington arrived at her house he had $4,500 in blood-splattered money. However, closer examination of Dalton's testimony reveals that she never attempted to suggest how the defendant had come into possession of more than the $500 received from DeVito. So, if we are correct that Howington, unbeknownst to DeVito, grabbed a sum of money at the scene of the crime, then the above-quoted response to the question (also above-quoted) could very well be true, even if not complete. While this may be a fine distinction, it is a valid one because the State should not expect an accused to make a more complete response than necessary to answer the question truthfully.\\nIn light of the above, it remains questionable whether Howington lied after all. However, we need not make a specific finding in this regard because of our conclusion that any untruthfulness in his testimony was immaterial. In determining whether a failure to render or to offer performance is material, the following circumstances are significant:\\n(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;\\n(b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;\\n(c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;\\n(d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;\\n(e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.\\nRestatement (Second) of Contracts \\u00a7 241. Additionally, we find that in the area of informal immunity agreements where a criminal defendant is necessarily involved, \\\"the most important consideration is the incriminating nature of the proferred [sic] statements, not the amount of information provided to the government.\\\" Fitch, 964 F.2d at 574 (citing United States v. Johnson, 861 F.2d 510, 513 n. 3 (8th Cir.1988)).\\nIn this case, the State enjoyed the benefit which it reasonably expected; that is, eyewitness testimony against DeVito. Also, while the agreement provided no remedy for a breach, revoking the agreement certainly does nothing to compensate the State for any alleged injury, and it is decidedly unfair to do this after Howington relied on the agreement. Moreover, Howington produced exceptionally incriminating evidence, not only against DeVito, but also against himself. Finally, in light of Howington's complete cooperation, his answer regarding the amount of money he was given hardly indicates a lack of good faith and fair dealing on his part. Thus, we conclude that any breach which occurred under the facts was not material considering the circumstances.\\nIV\\nFor all these reasons, we hold that the State was obligated to perform under the agreement it entered into with Howington. It remains to decide what the result of the State's refusal should be. First, it would be useless to go back to the preliminary hearing because the State agreed only to recommend to the magistrate that Howington be bound over on second-degree murder. The magistrate would have had no obligation to accept the recommendation. Moreover, even if the magistrate were to have accepted the recommendation and bound Howington to the grand jury on the lesser charge, the grand jury was free to indict upon whatever charge it found applicable. Nevertheless, Howing-ton was deprived of the chance that the grand jury might have accepted the magistrate's recommendation (if made) and indicted upon the lesser charge. Howington gave up a lot for that chance; he received nothing in return. Fundamental principles of justice and fair play would require that the parties to the uneonsummated bargain be restored to their former positions. Obviously, this is not a possibility. Failing that, the only just remedy would be to position the defendant as though all variables had worked to his advantage. \\\"The Supreme Court . shall grant the relief on the law and facts to which the party is entitled or the proceeding otherwise requires and may grant any relief, including the giving of any judgment and making of any order_\\\" Tenn.RApp.P. 36(a) (1995).\\nAccordingly, we reverse the conviction for first-degree murder and enter judgment convicting the defendant of second-degree murder. We vacate the sentence and remand the cause for resentencing on second-degree murder.\\nANDERSON, C.J., and DROWOTA, REID and WHITE, JJ., concur.\\n. In the case under submission, the agreement cannot be described as including a promise of \\\"immunity\\\" in the purest sense. The district attorney general promised merely to recommend to the magistrate who conducted the preliminary hearing that Howington be bound to the grand jury on second-degree murder instead of first-degree murder as the warrant charged. Perhaps the agreement is more accurately described as a cooperation-immunity agreement, or as a charge-bargain agreement. Thus, we use the three terms generically and interchangeably.\\n. DeVito was subsequently convicted of first-degree (felony) murder upon evidence which included Howington's preliminary heating testimony.\\n. We deem it unnecessary to address this part of the agreement.\\n. Howington conceded the State's right to use this testimony for impeachment purposes should he testify.\\n. 192 Tenn. 244, 240 S.W.2d 528 (1951). As we stated above, Bruno is expressly overruled to the extent that it can be read as precluding judicial enforcement of immunity agreements under all circumstances.\\n. We use the phrase \\\"informal immunity agreement\\\" genetically to include all agreements between the State and an accused regarding charge, plea, or sentence.\\n. We note, however, as the Court of Criminal Appeals did, that the Johnson court did find that \\\"a defendant's constitutional rights would be violated if the promise of immunity is used in an improper way so as to extract a statement from him which implicates him in the crime.\\\" 781 S.W.2d at 880. This concern for the protection of constitutional rights resulted in the rule that if the defendant's statements were coerced by the promise of leniency, the statements and evidence obtained by way of the statements cannot be used by the State in its case-in-chief. We note that in Johnson, the trial court determined, after a hearing, that Johnson had breached the agreement by being untruthful.\\n.It should be noted that even though the plea agreement is not enforceable until it has been accepted by the trial judge, the trial judge must allow the defendant to withdraw his guilty plea in the event that it is not accepted. Tenn. R.Crim.P. 11(e)(4). This prevents the defendant from being unfairly prejudiced.\\n. While the State asserted in its brief that \\\"[t]here are numerous dangers in allowing courts to engage in the enforcement of immunity agreements,\\\" it did not enumerate any.additional \\\"dangers\\\" to the threat of \\\"prolific . litigation.\\\"\\n. As to the specific issue addressed in Bruno\\u2014 whether agreements entered into by a police officer and a defendant are enforceable \\u2014 we reserve decision until the question is again squarely presented.\\n. We do not find it convincing that Howington would have so readily waived his right against self-incrimination while facing a first-degree murder charge if he had not believed that the State was bound under the agreement from the outset.\\n. By analogy, we observe that in a plea-agreement situation, the only condition precedent is the court's acceptance of the agreement. Once that takes place, the State's performance is due.\\n. A charge of perjury may be a consideration under these circumstances.\"}"

tenn/10021732.json

@@ -0,0 +1 @@
+"{\"id\": \"10021732\", \"name\": \"Dale PADUCH, Peter Paduch, Ben Paduch, Jr., Harriet Paduch, and State of Tennessee, on the relation of Dale Paduch, Peter Paduch, Ben Paduch, Jr. and Harriet Paduch, Plaintiffs-Appellees, v. CITY OF JOHNSON CITY, Defendant-Appellant\", \"name_abbreviation\": \"Paduch v. City of Johnson City\", \"decision_date\": \"1995-03-27\", \"docket_number\": \"\", \"first_page\": \"767\", \"last_page\": \"773\", \"citations\": \"896 S.W.2d 767\", \"volume\": \"896\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T22:56:39.677765+00:00\", \"provenance\": \"CAP\", \"judges\": \"ANDERSON, C.J., DROWOTA and BIRCH, JJ., and O\\u2019BRIEN, Special Justice, concur.\", \"parties\": \"Dale PADUCH, Peter Paduch, Ben Paduch, Jr., Harriet Paduch, and State of Tennessee, on the relation of Dale Paduch, Peter Paduch, Ben Paduch, Jr. and Harriet Paduch, Plaintiffs-Appellees, v. CITY OF JOHNSON CITY, Defendant-Appellant.\", \"head_matter\": \"Dale PADUCH, Peter Paduch, Ben Paduch, Jr., Harriet Paduch, and State of Tennessee, on the relation of Dale Paduch, Peter Paduch, Ben Paduch, Jr. and Harriet Paduch, Plaintiffs-Appellees, v. CITY OF JOHNSON CITY, Defendant-Appellant.\\nSupreme Court of Tennessee, at Knoxville.\\nMarch 27, 1995.\\nDick L. Johnson, Earl R. Booze, Johnson & Booze, Johnson City, Gwendolyn D. Burgess, Kingsport, and David M. Bowen, Johnson City, for plaintiffs-appellees.\\nHent Herrin, Herrin & Herrin, Johnson City, for defendant-appellant.\", \"word_count\": \"3415\", \"char_count\": \"20514\", \"text\": \"OPINION\\nREID, Justice.\\nThe City of Johnson City asserts on this appeal that the Court of Appeals erred in sustaining the suit by appellees as an action to abate a nuisance and in awarding damages because the city did not pave a street abutting property owned by the appellees and refused to issue a building permit until the street was paved.\\nWhen the area which included the street and adjoining property was annexed by Johnson City in 1963, the street was, in the words of the trial judge, a country lane. After the property was annexed, the city posted a sign designating it \\\"Quarry Drive\\\" and initially provided minimum maintenance. Later, the city discontinued the maintenance but took no formal action to abandon it.\\nIn May 1989, appellees, Dale Paduch, Peter Paduch, and Ben Paduch, Jr. (the Pa-duchs), who owned a tract of land abutting Quarry Drive, entered into a contract with the State of Tennessee whereby they agreed to construct on their tract certain improvements which would be leased to the state.\\nUpon application by the Paduchs, Johnson City refused to issue a building permit for the construction of the buildings until the Paduchs paved that portion of Quarry Drive providing access to the property. After some delay, the Paduchs paved a portion of the street at their expense and the building permit was issued.\\nThe Paduchs filed suit against the city in chancery court, alleging that the city \\\"refused to acknowledge\\\" Quarry Drive as a city street, that Quarry Drive was a public street, that the city was obligated by law to pave and maintain it, and that they had been required \\\"to expend much time, energy and effort and additional expense in obtaining a building permit . [and] at their own expense to pave a portion of Quarry Drive.\\\" The Paduchs sought a writ of mandamus ordering the city to pave the remainder of Quarry Drive and they also claimed damages of $25,406 for their paving cost and $17,348 for the loss of rent caused by the delay in obtaining the building permit.\\nThe trial court found that the writ of mandamus did not lie because the city denied it was obligated to pave Quarry Drive, thereby presenting disputed issues of fact and law. The city asserted that the \\\"country lane,\\\" though designated Quarry Drive, was not, in fact, a public street, and, alternatively, city ordinances required the owners, as developers of unimproved property, to bear the cost of paving the street providing access to their property. The trial court also held that the facts alleged did not constitute an action to abate a nuisance or a tort action for negligence. The suit was allowed by the trial court to proceed as an action for declaratory judgment and incidental damages, if appropriate.\\nThe trial court found that Quarry Drive was a public street, that the city was obligated to keep it, including that portion paved by the Paduchs, in good repair for the benefit of the travelling public, but that the city was under no obligation to pave any portion of the street. It further found, however, that the city should not have conditioned the issuance of the building permit requested by the Paduchs on their paving a portion of the street, and initially awarded damages in the amount of $25,406 for the paving cost and $17,348 for lost rent. On rehearing, the court found that, pursuant to Tenn.Code Ann. \\u00a7 29-20-205(3), the city's governmental immunity has not been waived for the denial of a building permit, and rescinded the award of $17,348 for lost rent. Judgment was entered for $25,406.\\nThe Court of Appeals affirmed the award of damages for the paving cost and reinstated the award of damages for the lost rent. That court characterized the action as a suit to abate a nuisance and held that \\\"the chancery court has inherent jurisdiction to abate a nuisance and in the same suit award damages for injuries caused by the nuisance, notwithstanding the Tennessee Governmental Tort Liability Act.\\\"\\nNeither the parties nor the courts could agree as to the cause of action asserted in this case. However, Rule 8.06, Tennessee Rules of Civil Procedure, provides \\\"all pleadings shall be so construed as to do substantial justice.\\\" The Advisory Commission Comments to this rule state:\\nThe common-law rule that pleadings must be construed most strongly against the pleader was abolished by Section 2880 of the Code of 1858 (Now, T.C.A. \\u00a7 20-702) [repealed]. Under the code, a pleading was sufficient \\\"when by a fair and natural construction, it shows a cause of action or defense.\\\" Rule 8.06 substitutes the end to be sought in place of specific rules of construction.\\n1 Gibson's Suits in Chancery \\u00a7 276, p. 324 (1955) provides:\\n[I]f a bill contains allegations sufficient, if true, to entitle the complainant to some relief, the fact that the bill is inartificially drawn, or is misnamed by the draftsman, will not justify a motion to dismiss. In such a case, the Court judges the bill, not by its name, or want of technical precision in its frame and averments, but by its substance, and the matters of Equity it sets forth. While the proper name of the bill will not atone for defects of substance, yet proper substance will atone for a defect in the name. The name of a bill is mere matter of form, and is absolutely immaterial; and, whatever be its name, the Court will look at its allegations and prayers, and judge the bill thereby, and not by the particular name it may happen to bear.\\nThe pleadings and the proof will determine the cause of action, if any, which has been asserted and proven.\\nWrit of Mandamus\\nThe trial court and the Court of Appeals correctly found that the complaint did not state a basis for the issuance of the writ of mandamus. The Court of Appeals relied upon Peerless Constr. Co. v. Bass, 158 Tenn. 518, 14 S.W.2d 732 (1929). As stated in Hackett v. Smith County, 807 S.W.2d 695, 698 (Tenn.Ct.App.1990):\\nFor an act to be enforced by a writ of mandamus, the act must be purely \\\"ministerial.\\\" Peerless Construction Co. v. Bass, 158 Tenn. 518, 520, 14 S.W.2d 732 (1929). If the right to have the act performed is doubtful, the right must be first established in some other form of action. Mandamus is a summary remedy, extraordinary in its nature, and to be applied only when a right has been clearly established. Peerless, 14 S.W.2d at 733.\\nIn that case, the court held that mandamus was not the proper procedure to determine if the roads in a subdivision had become public roads, and that the writ lies only where there is a clear and specific legal right sought to be enforced. Id. See also Foley v. Hamilton, 603 S.W.2d 151 (Tenn.Ct.App.1980).\\nNeither the appellant nor the Court of Appeals mentioned State ex rel. Matthews v. Metropolitan Gov't, 679 S.W.2d 946 (Tenn. 1984). Matthews was an application for the writ of mandamus against Nashville-Davidson County to require the Metropolitan Police Department to remove obstructions from an alley, pursuant to an ordinance which imposed that duty upon the Police Department with regard to public alleys. Metropolitan Government denied the alley was public, and that issue was contested by the parties and decided by the Court. The Court's reasoning for denying Metropolitan Government's motion to dismiss was:\\nThe Metropolitan Police Department is not vested with discretion to determine whether a particular alley is a public alley. The defendants' denial that the alley is public does not render the right doubtful so as to prevent the application of the remedy of mandamus.\\nId. at 948. The Court, nevertheless, affirmed the rule stated in Peerless:\\nThe proper use of the remedy of mandamus is well summarized in Peerless Construction Co. v. Bass, as follows:\\n\\\"The office of mandamus is to execute, not adjudicate. It does not ascertain or adjust mutual claims or rights between the parties. If the right be doubtful, it must be first established in some other form of action; mandamus will not lie to establish as well as enforce a claim of uncertain merit. It follows therefore that mandamus will not be granted where the right is doubtful.\\\" (citations omitted.)\\nAnd further:\\nWe continue to adhere to the rule stated in Peerless.\\nId.\\nNotwithstanding the similarities between Matthews and the case before the Court, the rule stated in Peerless and reaffirmed in Matthews is an accurate statement of the purpose of the writ of mandamus and defines the jurisdiction of the writ. Its essential purpose is to execute a ministerial function, not adjudicate a legal issue. The relief sought in this case, the claim for damages for the cost of paving a portion of the street and for lost rent, is not consistent with the application for the writ of mandamus. Ordinarily, damages are not recoverable in mandamus proceedings. Curtis v. State, 163 Tenn. 220, 43 S.W.2d 391 (1931); 55 C.J.S. Mandamus \\u00a7 342 (1948).\\nThe decision by the Court of Appeals that the record does not support the issuance of the writ of mandamus is affirmed.\\nTemporary Nuisance\\nHowever, the record does not support the conclusion by the Court of Appeals that this is an action to abate a temporary nuisance.\\nIn Pate v. City of Martin, 614 S.W.2d 46 (Tenn.1981), this Court considered whether the city's operation of a sewage lagoon could be enjoined as a temporary nuisance. The Court noted that \\\"a nuisance extends to everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property.\\\" Id. at 47. The Court concluded that the lagoon was a temporary nuisance, in that it could be corrected by the expenditure of labor or money, and held the plaintiffs were entitled to an injunction requiring the city to take all responsible steps to terminate the emission of odors from the lagoon. The Court further held that the plaintiffs were entitled to damages for having Been deprived of the use and enjoyment of their property. Id. at 48. In that case, the maintenance of the sewage lagoon was an affirmative act by the city which interfered with the plaintiffs use of their property.\\nIn determining that the maintenance of a chain across the access road to bicycle trails in a park did not constitute a nuisance for which the city could be held liable, the Court of Appeals, in Dean v. Bays Mountain Park Ass'n, 551 S.W.2d 702, 704 (Tenn.Ct.App.1977), stated:\\nThe eases in Tennessee considering municipal liability for nuisance establish the following requirements: an inherently dangerous condition and affirmative action on the part of the municipality. Both elements must be established before a nuisance can be found and \\\"the distinction must be preserved 'between negligence, an omission of duty, and a nuisance, or active wrong.'\\\" Powell v. City of Nashville, 167 Tenn. 334, 69 S.W.2d 894 (1933).\\nThe court in that case dismissed the complaint against the defendants on the ground that there was no evidence in the record to establish an inherently dangerous condition.\\nThe record in the case before the Court contains no evidence to support either requirement. There is no evidence that the condition of the street was inherently dangerous, created any danger, or caused any harm, nor has the city been charged with any affirmative action that caused the plaintiffs harm.\\nConsequently, the record does not support the decision by the Court of Appeals that the suit was an action to abate a temporary nuisance.\\nDeclaratory Judgment\\nThe trial court properly held that this is a suit for declaratory judgment. Tenn. Code Ann. \\u00a7 29-14-102(a) (1980) provides: Courts of record within their respective jurisdictions shall have the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.\\nThe primary issue in this case was whether the passageway in question was a public street. The trial court, in rendering its decision, stated, \\\"the first question is whether or not Quarry Drive is a public way and therefore should be maintained by the city,\\\" and, after reviewing the evidence, concluded that it was a public street and the city was obligated to maintain it. The record shows that the city has accepted and is discharging the obligation to maintain Quarry Drive. That issue is not contested on this appeal.\\nEven though the trial court found that the city is obligated to maintain Quarry Drive, it also found that the city was under no obligation to pave any portion of the street. That declaration by the trial court is not contested on this appeal and is affirmed.\\nThe issue contested is whether the Pa-duchs are entitled to damages for their paving cost and the lost rent claimed. The Uniform Declaratory Judgment Act, codified as Chapter 14 of Title 29 of Tenn.Code Ann., authorizes the Court to grant relief in addition to the declaration of rights. Tenn.Code Ann. \\u00a7 29-14-110(a) (1980) provides:\\nFurther relief based on a declaratory judgment or decree may be granted whenever necessary or proper.\\nThe further relief authorized by statute may include the award of damages. 22A Am.Jur.2d Declaratory Judgments \\u00a7 251, p. 890 (1988). The Paduchs' position is that their expenditure for paving a portion of Quarry Drive and the lost rent claimed were caused by the city's refusal to issue a building permit. The trial court found, and the Court of Appeals concurred, that, even though the city was under no obligation to pave Quarry Drive, the city was obligated to issue a budding permit without first requiring that the portion of Quarry Drive providing access to the property be paved. Consequently, the city's only breach of duty to the Paduchs was its refusal to issue the building permit when requested.\\nBefore the award of damages can be affirmed, two issues must be resolved \\u2014 whether the damages awarded were \\\"necessary or proper\\\" within Tenn.Code Ann. \\u00a7 29-14-110(a), and whether the award of damages is precluded by governmental immunity. However, in this case, the resolution of the second issue makes the first issue moot.\\nGovernmental Tort Liability Act\\nGovernmental immunity for political subdivisions granted by the Governmental Tort Liability Act is waived only as specifically provided by the Act. Tenn.Code Ann. \\u00a7 29-20-101, -407 (1980 & Supp.1994); Kir by v. Macon Co., 892 S.W.2d 403, 406 (Tenn. 1994). Immunity is removed for \\\"injuries\\\" caused by \\\"the negligent operation by any employee of a motor vehicle or other equipment,\\\" \\\"a defective, unsafe, or dangerous condition of any street, alley, sidewalk or highway,\\\" \\\"the dangerous or defective condition of any public building, structure, dam, reservoir or other public improvement\\\" and \\\"a negligent act or omission of any employee within the scope of his employment except if the injury . [a]rises out of the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization.\\\" The basis of liability asserted by the Paduchs does not come within any of these categories of acts or omissions. The Paduchs do not allege \\\"any injury\\\" resulting from the activities of the city that can be the basis of liability. Consequently, immunity has not been waived. In addition, Tenn.Code Ann. \\u00a7 29-20-205(3) specifically retains immunity for the refusal or failure to issue any permit, which obviously includes a building permit. The city is immune as a matter of law from any liability due to the initial denial of the building permit. Cf. Foley v. Hamilton, 659 S.W.2d 356, 360-61 (Tenn.1983).\\nIn Pate v. City of Martin, a temporary nuisance case discussed above, the Governmental Tort Liability Act was not raised as a defense and was not discussed by the Court. However, in an earlier appeal of that case, Pate v. City of Martin, 586 S.W.2d 834 (Tenn.Ct.App.1979), the Court of Appeals concluded that the lawsuit involving the sewage lagoon was \\\"not governed by the provisions of the Governmental Tort Liability Act.\\\" Id. at 836. Contrary to the decision of the Court of Appeals in that case, an action for damages resulting from the creation or maintenance of a temporary nuisance by a governmental agency may be allowed under the act. See Smith v. City of Covington, 734 S.W.2d 327 (Tenn.Ct.App.1985) (Per Curiam) (suit to recover damages caused by intermittent sewer backup); Hayes v. City of Maryville, 747 S.W.2d 346 (Tenn.Ct.App. 1987) (claim for water runoff damage caused by increased grade of highway following improvements); Collier v. Memphis Light, Gas & Water Division, 657 S.W.2d 771 (Tenn.Ct. App.1983) (action for wrongful death and personal injuries allegedly caused by the city's construction, location and maintenance of a utility pole with high-voltage wires).\\nA cause of action under the Governmental Tort Liability Act may lie for activities of a governmental entity for which immunity has been waived even though such activities may also be the basis for the equitable action to abate a nuisance. The provisions of the Governmental Tort Liability Act are applicable to any action or defense asserted which comes within the terms of the Act.\\nEstoppel\\nAlthough the city was not obligated to pave any portion of Quarry Drive, it did, in a sense, benefit from the Paduchs' expenditure of funds in paving a portion of the street. The equitable principle of estoppel has been used to remedy the unjust enrichment of a city. City of Lebanon v. Baird, 756 S.W.2d 236, 245 (Tenn.1988). However, \\\"[pjublic agencies are not subject to equitable estoppel or estoppel in pais to the same extent as private parties and very exceptional circumstances are required to invoke the doctrine against the State and its governmental subdivisions.\\\" Bledsoe County v. McReynolds, 70S S.W.2d 123, 124 (Tenn. 1985). In that case, the Court reversed the judgment of the courts below that Bledsoe County was liable to the defendants for improvements they made to a public road in the mistaken belief that it was a private road. The defendants sought reimbursement for improvements made without consultation with or permission from Bledsoe County. The Court stated:\\nIt is significant to observe that in those Tennessee cases where estoppel was applied, or could have been applied, the public body took affirmative action that clearly induced a private party to act to Ms or her detriment, as distinguished from silence, non-action or acquiescence. In the instant case defendants have nothing upon wMch to predicate the essential element of inducement, except silence and inaction.\\n\\u215c \\u215c \\u215c \\u215c \\u215d \\u215c\\nThe courts have no authority to impose a duty upon public agencies to patrol roadways and momtor public property to see that private parties do not mistakenly improve public lands or facilities, nor can the courts sanction a doctrine that allows private parties to determine the nature, extent and cost of public works and public improvements. No authority has been cited nor have we found any that sanctions subjecting the public's property and rights to such hazards and obligations.\\nId. at 125-26.\\nLike the property owners in Bledsoe County, the plaintiffs in the present case were not affirmatively induced by the city to improve a public street. The Paduchs paved Quarry Drive in order to obtain a building permit and in order to provide more convenient access to their property. The city's wrongfijl demal of the budding permit did not obligate the city to reimburse the Pa-duchs for the cost of improvements made by them. These facts do not present the exceptional circumstances required to invoke equitable estoppel against a public agency.\\nThus, the judgment of the Court of Appeals awarding damages against the city is reversed.\\nCosts are taxed against the appellees.\\nANDERSON, C.J., DROWOTA and BIRCH, JJ., and O'BRIEN, Special Justice, concur.\\n. There is no insistence on this appeal that the suit can be maintained as an action in negligence.\\n. Tenn.Code Ann. \\u00a7 29-20-202(a).\\n. Tenn.Code Ann. \\u00a7 29-20-203(a).\\n. Tenn.Code Ann. \\u00a7 29-20-204(a).\\n. Tenn.Code Ann. \\u00a7 29-20-205(3).\"}"

tenn/10120246.json

@@ -0,0 +1 @@
+"{\"id\": \"10120246\", \"name\": \"Chester L. FROST et al., Appellants, v. CITY OF CHATTANOOGA, Tennessee, et al., Appellees\", \"name_abbreviation\": \"Frost v. City of Chattanooga\", \"decision_date\": \"1972-12-18\", \"docket_number\": \"\", \"first_page\": \"370\", \"last_page\": \"373\", \"citations\": \"488 S.W.2d 370\", \"volume\": \"488\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-11T01:03:39.106609+00:00\", \"provenance\": \"CAP\", \"judges\": \"CHATTIN, HUMPHREYS, and Mc-CANLESS, JJ., and COOPER, Sp. J., concur.\", \"parties\": \"Chester L. FROST et al., Appellants, v. CITY OF CHATTANOOGA, Tennessee, et al., Appellees.\", \"head_matter\": \"Chester L. FROST et al., Appellants, v. CITY OF CHATTANOOGA, Tennessee, et al., Appellees.\\nSupreme Court of Tennessee.\\nDec. 18, 1972.\\nSamuel H. Payne, Shattuck & Payne, John B. Taylor, Schoolfield & Taylor, Chattanooga, for appellants.\\nEugene N. Collins, City Atty., Charles B. Rucker, Jr., and Randall L. Nelson, Special Counsel, Chattanooga, for appellees.\", \"word_count\": \"1466\", \"char_count\": \"9030\", \"text\": \"OPINION\\nDYER, Chief Justice.\\nThis case filed pursuant to our Declaratory Judgment Statutes, T.C.A. 23-1101 et seq., seeks a judgment as to the constitutionality of Chapter 420, Public Acts of 1971. The chancellor found the Act constitutional.\\nT.C.A. 6-309 is a part of the general law governing the right of municipalities to annex by ordinance of the municipality territory adjacent to its boundaries. The Act in question is an amendment to T.C.A. 6~ 309, having the general purpose of allowing residents in the annexed territory to pay municipal taxes in accord with the municipal services received. While the purpose of the amending act is not controlling in our decision, as a matter of dictum to this opinion we note the purpose is a very laudatory one.\\nIt is admitted Chapter 420 applies only to the City of Chattanooga in Hamilton County, Tennessee. This being the case it is argued Chapter 420 is a local law as opposed to a general law and, therefore, inhibited by certain language in Article 11, Section 9 of the Constitution of Tennessee, which reads as follows:\\nThe General Assembly shall by general law provide the exclusive methods by which municipalities may be created, merged, consolidated and dissolved and by which municipal boundaries may be altered.\\nIt is first argued Chapter 420 is a taxation statute rather than an annexation statute altering municipal boundaries and the above copied constitutional inhibition does not apply.\\nChapter 420 grants a municipality the power \\\" . . .to annex . . . any territory without levying any municipal ad valorem taxes except for actual municipal services rendered . . . . \\\" The right to annex territory without taxing for services other than those actually rendered is a distinct and new municipal power regarding annexation of adjacent territory. This does not provide a new \\\"method\\\" in the sense annexation ordinances and referanda are methods, but it does provide an additional method in that annexation without full taxation is a new option municipalities may choose to exercise and the language above copied from Article 11, Section 9, is applicable.\\nIt is argued Chapter 420 is a general act since it has an open-end population classification based on the U. S. Census for 1970 or any subsequent Federal Census, and other counties could come within its terms.\\nIn Darnell v. Shapard, 156 Tenn. 544, 3 S.W.2d 661 (1927), this Court said:\\nThe determination of the validity of acts of the Legislature attempting a classification of the counties of the state is largely influenced by the character of the legislation. If an act of the Legislature affects particular counties as governmental or political agencies, it is good. It is good if it affects only one county in this capacity. No argument is required to sustain such an act. If, however, an act of the Legislature primarily affects the citizens of particular counties or of one county in their individual relations, then such classification must rest on a reasonable basis, and, if the classification is arbitrary, the act is bad. State ex rel. v. Knox County, 154 Tenn. 483, 290 S.W. 405, 50 A.L.R. 1158; State ex rel. v. Trotter, 153 Tenn. 30, 281 S.W. 925; Wilson v. Wilson, 134 Tenn. 697, 185 S.W. 718; State v. Columbia, etc., Turnpike Co., 133 Tenn. 446, 181 S.W. 682; Redistricting Cases, 111 Tenn. 234, 80 S.W. 750.\\nChapter 420 primarily affects citizens of Hamilton County in their individual relations and the classification used must be reasonable.\\nSection 2 of Chapter 420 makes it applicable to municipalities having a population of over one hundred thousand. After making this classification, Chapter 420 further restricts municipalities from coming within its provisions by excluding certain counties. By the last sentence of Section 2, Davidson County is excluded by excluding counties having a Metropolitan form of government. By Section 3, Knox County and Shelby County are excluded by use of the 1970 U. S. Census figures.\\nThe reasonableness of this classification has to be viewed in the light Chapter 420 has been drafted to exclude all municipalities above one hundred thousand except Chattanooga; and, also, in the light the next largest city in Tennessee would have to increase two and one-half times its 1970 size by the U. S. Census figures to come within the population classification of one hundred thousand. A study of Chapter 420 provides convincing evidence it was not drafted to create a class of municipalities who had similar annexation-taxation problems with fringe population areas, but seeks to clothe a local act for Chattanooga in terms of a general act.\\nWe realize, as has been argued, there are cases where statutes have been upheld on a population classification which made the statute applicable to one county. Elliot v. Fuqua, 185 Tenn. 200, 204 S.W.2d 1016 (1947); Canale v. Steveson, 224 Tenn. 578, 458 S.W.2d 797 (1970). The statute in the Elliot case applying only to Davidson County involved sale of \\\"pyrotechnics.\\\" The statute in the Canale case applying only to Shelby County involved licensing of \\\"fortune-telling.\\\" (The statute in the Canale case was invalidated on other than classification grounds.)\\nThe difference in the Elliot and Canale cases, and the case at bar is: The Constitution in very clear language prohibits the Legislature from prescribing any method of altering municipal boundaries except by general law. The Constitution makes no such specific requirement in regard to the regulation of the sale of \\\"pyrotechnics\\\" or the licensing of \\\"fortune-telling.\\\" Even if it be determined Chattanooga has a unique situation, it would avail nothing as this constitutional provision has invalidated such uniqueness justifications.\\nIt is argued Chapter 420 is a general Act since it is an enabling act rather than a mandatory act, citing Doyle v. Metropolitan Government, Tenn., 471 S.W.2d 371 (1971). While this distinction was a factor in the Doyle case, the particular language of Article 11, Section 9 at issue in the case at bar was not at issue in the Doyle case. In view of the mandatory language of Article 11, Section 9, requiring municipal boundaries be altered by general law, the factor of the statute being enabling or mandatory would be immaterial.\\nThe language of Article 11, Section 9 herein relied upon as inhibiting such legislation as Chapter 420, Public Acts of 1971, was first adopted by the Limited Constitutional Convention of 1953, and later approved by the people. The Journal of this Limited Constitutional Convention reflects in detail the great evils that had arisen in regard to the Legislature enacting legislation affecting only one county or municipality. In order to remedy such evils, the language here relied upon and other language of Article 11, Section 9 was proposed by the Convention and adopted by the people. In view of these facts and this unambiguous mandatory language now a part of our Constitution, we do not hold that the Legislature could not act to alter municipal boundaries by legislation valid as a general law under the classification doctrine, but we are not able to conceive of any circumstances where such would be valid.\\nWe are requested in the event Chapter 420 be deemed unconstitutional the void provisions be elided and the remainder of the Act be sustained. Reliance is placed on the severability clause in Chapter 420, and the statutory authorization of elision. T.C.A. \\u00a7 1-310.\\nThere is a presumption against sustaining the remaining part of a statute where a part of the statute is held unconstitutional. City of Nashville v. Browning, 192 Tenn. 597, 241 S.W.2d 583 (1951). The general rule is that,\\n. . . where a clause is so interwoven with other portions of an act as that we cannot suppose that the legislature would have passed the act with that clause omitted, then if such clause is declared void, it renders the whole act null. Hobbs v. Lawrence County, 193 Tenn. 608, 247 S.W.2d 73 (1952).\\nTo elide the provisions of Chapter 420 defining the category of affected municipalities would result in an incomplete statute. Either all municipalities would be included or this Court would be faced with the problem of establishing a class of municipalities that accords with state law. We think it unlikely the Legislature intended all municipalities be included within the provisions of Chapter 420 and to judicially create a proper class would be judicial legislation. Davidson County, et al v. Elrod, 191 Tenn. 109, 232 S.W.2d 1 (1950).\\nIt results that Chapter 420, Public Acts of 1971, is unconstitutional and the judgment of the chancellor is reversed.\\nCHATTIN, HUMPHREYS, and Mc-CANLESS, JJ., and COOPER, Sp. J., concur.\"}"

tenn/10142971.json

@@ -0,0 +1 @@
+"{\"id\": \"10142971\", \"name\": \"The MEMPHIS COUNTRY CLUB v. George M. TIDWELL, Commissioner Department of Revenue of the State of Tennessee\", \"name_abbreviation\": \"Memphis Country Club v. Tidwell\", \"decision_date\": \"1973-12-03\", \"docket_number\": \"\", \"first_page\": \"919\", \"last_page\": \"921\", \"citations\": \"503 S.W.2d 919\", \"volume\": \"503\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-11T01:02:53.582217+00:00\", \"provenance\": \"CAP\", \"judges\": \"DYER, C. J., CHATTIN and FONES, JJ., and LEECH, Special Justice, concur.\", \"parties\": \"The MEMPHIS COUNTRY CLUB v. George M. TIDWELL, Commissioner Department of Revenue of the State of Tennessee.\", \"head_matter\": \"The MEMPHIS COUNTRY CLUB v. George M. TIDWELL, Commissioner Department of Revenue of the State of Tennessee.\\nSupreme Court of Tennessee.\\nDec. 3, 1973.\\nDale Woodall, Evans, Petree, Cobb & Edwards, Memphis, for appellant.\\nDavid M. Pack, Atty. Gen., State of Tennessee, William B. Hubbard, Asst. Atty. Gen., Nashville, for appellee.\", \"word_count\": \"1501\", \"char_count\": \"8670\", \"text\": \"OPINION\\nMcCanless, justice.\\nThe Memphis Country Club filed its complaint to recover sales taxes, penalty, and interest, amounting to $8,420.36, which it had paid under protest. The Chancellor, being of opinion that the club was liable for the assessment, dismissed the complaint. The club has appealed.\\nThe parties stipulated that the plaintiff is a non-profit social club maintained for the benefit, amusement, entertainment, and recreation of its members, including among other things the operation of bar and dining facilities. On February 21, 1967, the club's board of directors adopted the following resolution concerning the tipping of the bar and dining room employees:\\n\\\"Effective April 1, 1967, a minimum tip of 15% will apply to all food and beverage sales. With a minimum tip of .05$S, rounded up to the nearest higher .050. Additional tip or cash would be allowed on top of 15% for extra services rendered, but members can also eliminate the 15% tip if dissatisfied with service explaining on ticket with a notation why he would want to eliminate 15% automatic tip.\\n\\\"In the absence of any indication of tip, 15% will be automatically applied.\\n\\\"A 10% tip will apply on Buffet Service rather than the regular 15%.\\\"\\nThe services of the club never are paid for in cash but are charged to the members who are billed for the services and the tips. The practice is for a waiter or waitress rendering service to record the member's name on each sales ticket and for the club to pay each such employee, weekly, the total amount of his tips. The tips are shown as a separate item on the employee's salary check, and are reported to the Inter nal Revenue Service. The tips are in addition to the wages the club pays its employees, which in all cases equal or exceed the statutory minimum wages.\\nThe parties stipulated and the testimony showed that some of the tickets are altered by members to change amounts of the tips authorized. More of the changes are to provide increases than to require reduction or the elimination of tips. It appears from the record that despite the requirement of the resolution that a member write on the ticket \\\"a notation why he would want to eliminate 15% automatic tip\\\" a member's elimination of a tip without explanation is allowed in practice.\\nThe Commissioner contends that the tips that the plaintiff collects under the club's arrangement are a part of the selling price of the goods and services that it furnishes. The club, on the other hand, insists that its rules do not require the payment of tips and that they are gratuities which may either be given or withheld at the member's pleasure.\\nThe Commissioner relies on the following language of Section 67-3002(d) in support of his insistence that the tips should be included in the charge for the service and, therefore, in the club's sales tax base:\\n\\\" 'Sales price' means the total amount for which tangible personal property is sold, including any services that are a part of the sale, valued in money, whether paid in money or otherwise, and includes any amount for which credit is given to the purchaser by the seller, without any deduction therefrom on account of the cost of the property sold, the cost of materials used, labor or service costs, or losses or any other expense whatsoever . . .\\\"\\nHe relies on Saverio v. Carson, 186 Tenn. 166, 208 S.W.2d 1018 [1948], and on Crescent Amusement Company v. Carson, 187 Tenn. 112, 213 S.W.2d 27 [1948].\\nMrs. Saverio operated a diaper service. For an agreed price she furnished diapers to her customers. She insisted that she should not be required to pay sales tax on that part of her revenues that compensated her for her delivery expense. The Court rejected this insistence observing that \\\"the tax must be paid on the final rental or selling price, even though this price includes service charges.\\\"\\nThe Crescent Amusement Company, the operator of motion picture theatres, argued that the rental of a motion picture film by an exhibitor was the rental of an intangible and therefore not subject to the assessment of the sales tax. The Court held to the contrary and upheld the Commissioner's authority to assess the tax.\\nIn Anders v. Board of Equalization, 82 Cal.App.2d 88, 185 P.2d 883 [1947], an opinion of the District Court of Appeal for the Third District of California, the facts were that under an arrangement between the operators of a drive-in restaurant and their waitresses, all tips received by a waitress would first be applied' to the payment of her minimum wage of $16.75 a week and any excess over that amount would be given to her. The court adjudged that the tips to the extent of the minimum wage became a part of the employer's gross receipts for service in connection with their sales of tangible personal property and subject to the sales tax; and that all tips in excess of the minimum wages were exempt from the tax.\\nThe Youngstown Club v. Porterfield, Commissioner, 21 Ohio St.2d 83, 255 N.E. 2d 262 [1970], involved the application of the retail sales tax to tips paid the waiters of a private dinner club. The tips were at the rate of fifteen per cent of all food and beverage checks and the amounts were paid to waiters who rendered the service. In practice members occasionally increased or decreased the fifteen per cent sum, depending upon the quality of service rendered by particular employees. The court held that these tips were not gratuities ex-cludable in computing the prices of sales and were subject to the sales tax.\\nContrary to The Youngstown Club opinion is that of the District Court of Appeal of Florida, Third District, in the case of Green, Comptroller v. Surf Club, Inc., reported in 136 So.2d 35-1 [1962]. There the court held that the club was not liable for a sales tax computed on tips under facts similar to those in the case before us and similar to those in the opinion in The Youngstown Club case. The court reasoned that the club was \\\"no more than an instrumentality or conduit for the collection of gratuities or 'tips' for its waiters or service personnel.\\\"\\nThe following language appears in the opinion:\\n\\\"There may be situations wherein the collection of a fixed service charge is taxable, such as where the assessment and collection thereof has no relationship to the sums received by the service personnel but is retained by the employer as a portion of the gross proceeds on the sale of food and beverage. The determinative question in each instance should be whether the 'dealer' receives a benefit from the involuntary charge. If he does, he should be taxed. If he does not, no tax should be levied.\\\"\\nThere is no dispute about the facts of this case. A member of the club or one of his family may be served at the bar or in the dining room. If he signs the ticket without indicating any change in the tip it is charged to the member's account and credited to the account of the waiter or waitress in accordance with the resolution. If the member or one of his family wants to, however, he can, by an endorsement on the ticket, change or eliminate the amount of tip and under the prevailing practice he need not give a reason for the change, although the resolution provides that \\\"if dissatisfied with service explaining on ticket with a notation why he would want to eliminate 15% automatic tip.\\\" The club does not enforce this provision of the resolution and the tip may be increased, decreased or eliminated at any time and without explanation. During a period of three weeks in March, 1972, 37 of the 207 food checks and 25 of the 546 bar checks that were examined had provided for a change in the fifteen per cent tips.\\nThe record shows to our satisfaction that the only compulsion on the members to observe the tipping schedule established by the resolution is a social and not a legal one. This conclusion is determinative of our further conclusion that the tips do not constitute a part of the charge for the services rendered and should not be included in the club's sales tax base.\\nWe, therefore, decide that under the facts of the record the assessment for which the Memphis Country Club challenges is an invalid assessment and that it is entitled to a decree in accordance with the prayers of its complaint. A decree will be entered accordingly.\\nDYER, C. J., CHATTIN and FONES, JJ., and LEECH, Special Justice, concur.\"}"

tenn/11081286.json

@@ -0,0 +1 @@
+"{\"id\": \"11081286\", \"name\": \"Raymond TOWNES, et al., v. SUNBEAM OSTER CO., INC., et al.\", \"name_abbreviation\": \"Townes v. Sunbeam Oster Co.\", \"decision_date\": \"2001-02-05\", \"docket_number\": \"\", \"first_page\": \"446\", \"last_page\": \"454\", \"citations\": \"50 S.W.3d 446\", \"volume\": \"50\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Tennessee Court of Appeals\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T20:35:04.334678+00:00\", \"provenance\": \"CAP\", \"judges\": \"in which CANTRELL and CAIN, JJ., joined.\", \"parties\": \"Raymond TOWNES, et al., v. SUNBEAM OSTER CO., INC., et al.\", \"head_matter\": \"Raymond TOWNES, et al., v. SUNBEAM OSTER CO., INC., et al.\\nCourt of Appeals of Tennessee, at Nashville.\\nFeb. 5, 2001.\\nPermission to Appeal Denied by Supreme Court July 16, 2001.\\nCharles J. Williams and John B. Carlson, Nashville, TN, and Louis C. Accurso, Kansas City, MO, for appellants, Raymond Townes and Marie Giddens Townes.\\nPhilip M. Kirkpatrick and Jeffrey M. Beemer, Nashville, TN, and James W. Ozog, Downers Grove, IL, for appellee, Sunbeam Oster Company, Inc.\", \"word_count\": \"3802\", \"char_count\": \"23753\", \"text\": \"OPINION\\nKOCH, J.,\\ndelivered the opinion of the\\ncourt,\\nin which CANTRELL and CAIN, JJ., joined.\\nThis appeal involves a products liability action stemming from the explosion of a propane grill. The plaintiffs originally filed suit in the Circuit Court for Davidson County naming the grill manufacturer and others as defendants. Thereafter, they took a voluntary nonsuit against the grill manufacturer. The present dispute arose when the plaintiffs filed a second amended complaint asserting new claims against the grill manufacturer and additional claims against the other defendants. After the trial court granted a summary judgment for the manufacturer on the ground that the amended complaint was barred by the statute of limitations, the plaintiffs attempted to bring the manufacturer back into the litigation by seeking to file a third amended complaint pursuant to Tenn.Code Ann. \\u00a7 20-1-119 (1994). The trial court declined to permit the plaintiffs to amend their complaint on the ground that Tenn. Code Ann. \\u00a7 20-1-119 does not apply to parties who were known to the plaintiff when the original complaint was filed. The plaintiffs appealed to this court. We have determined that the trial court correctly concluded that the plaintiffs could not take advantage of the relation-back provisions in Tenn.R.Civ.P. 15.03; however, we have also concluded that the trial court should have permitted the amendment under Tenn.Code Ann. \\u00a7 20-1-119.\\nOn November 11, 1993, Raymond and Marie Townes purchased a portable propane gas grill from a Wal-Mart store. The grill was manufactured by Sunbeam Oster Co. (\\\"Sunbeam\\\") and incorporated a propane gas tank manufactured by Manchester Tank & Equipment Company (\\\"Manchester\\\"). On the same day the Townes purchased the grill, they filled the tank with propane at England Motors, Inc. (\\\"England Motors\\\") in Hermitage.\\nApproximately one week later, the Townes used their new grill at a cookout at their home. Following the cookout, they heard \\\"popping\\\" and \\\"hissing\\\" noises coming from the grill. On December 1, 1993, Mr. Townes discussed the problem with a Wal-Mart employee who instructed him to drain the propane tank and to return the grill to the store where he had purchased it. Mr. Townes undertook to empty the tank by opening the service valve to release the propane. When he thought the tank had been fully drained, he placed the grill and tank in his car trunk. Unbeknownst to Mr. Townes, the tank he believed to be empty still contained propane.\\nThe propane gas continued to escape from the tank while the Townes drove to Wal-Mart to return the grill. Ms. Townes did not detect the odor of the escaping propane. Mr. Townes smelled a faint odor of propane, but he believed that the odor was the residue of the propane that had been released when he emptied the tank. Regrettably, the propane gas that had escaped into the automobile exploded when one of the Townes ignited a cigarette. The explosion and ensuing fire injured both Mr. Townes and Ms. Townes.\\nOn October 13, 1994, the Townes filed suit in the Circuit Court for Davidson County against Wal-Mart, Sunbeam, Manchester, England Motors, and Suburban Propane Gas Corporation (\\\"Suburban\\\"), the supplier of the propane they had purchased at England Motors. The complaint alleged that the gas grill and the propane tank were defective and unreasonably dangerous because of a phenomenon known as \\\"odor fade.\\\" It alleged that Sunbeam and Manchester should have been aware that purchasers would be unable to detect gas leaks because the smell of the chemical odorant added to propane gas to make it easier to detect was subject to fading when used in grills like the one the Townes had purchased.\\nSunbeam filed its answer on December 15, 1994, denying liability and asserting that the Townes were at fault because of the way they used the grill. The other defendants also answered. During the discovery that ensued, the Townes, Sunbeam, and the other parties inspected the grill, as well as its propane tank. On August 10, 1995, ten months after filing their original complaint, the Townes voluntarily nonsuited Wal-Mart and Sunbeam pursuant to Tenn.R.Civ.P. 41.01. Later, one of the lawyers representing the Townes explained that they dismissed Sunbeam because of their mistaken belief that Sunbeam was not involved in manufacturing the propane tank. They apparently believed that Manchester was the sole manufacturer.\\nIn January 1997, the Townes discovered that Manchester ordinarily installed two safety devices on tanks similar to the tank used on the Sunbeam grill but that it had not installed these devices on the tanks sold to Sunbeam. In April 1997, as part of their settlement negotiations with Manchester, the Townes learned that Manchester had offered to include these safety devices on the tanks it sold to Sunbeam but that Sunbeam had declined to purchase tanks with these devices. Not surprisingly, the Townes decided that they would never have nonsuited Sunbeam had they possessed that information.\\nThe Townes eventually settled their odor fade claims with Suburban and Shell. Thereafter, the trial court permitted the Townes to file a second amended complaint containing new design defect allegations against Manchester based on the absence of the two safety devices from the tank. The second amended complaint, which was filed on June 23, 1997 \\u2014 more than three years after the explosion \\u2014 also named Sunbeam as a defendant and asserted new claims against Sunbeam for its failure to install the safety devices on the propane tank.\\nSunbeam moved for a summary judgment on the ground that the Townes's new claims were barred by the statute of limitations. Meanwhile, Manchester filed its answer to the Townes's amended complaint and, pursuant to Tenn.Code Ann. \\u00a7 20-1-119 (1994), raised as a defense the comparative fault of its codefendants, including Sunbeam. Following a hearing on September 26, 1997, the trial court ruled from the bench that the Townes's new claims against Sunbeam were time-barred because they could not take advantage of the relation-back feature of TenmR.Civ.P. 15.03. The trial court also held that the Townes could not take advantage of Tenn. Code Ann. \\u00a7 20-1-119 because Sunbeam was not an unknown party when the Townes filed their second amended complaint.\\nOn October 3, 1997, the Townes requested permission to file their third amended complaint. In addition to striking their claim for punitive damages and all their claims against Manchester except for strict liability, the Townes again undertook to add Sunbeam as a defendant in accordance with Tenn.Code Ann. \\u00a7 20-1-119. In support of their motion, they pointed out that Sunbeam was no longer a party to the litigation in light of the trial court's dismissal of the claims against Sunbeam in their second amended complaint. In an order filed on October 29, 1997, the trial court denied the Townes's motion to amend, as it pertained to the Sunbeam claims.\\nThe Townes are now appealing from the dismissal of the Sunbeam claims in then-second and third amended complaints. First, they assert that these claims are not barred by the statute of limitations because they relate back to their first timely-filed complaint in accordance with Tenn. R.Civ.P. 15.03. Second, they assert that Tenn.Code Ann. \\u00a7 20-1-119 permits them to add Sunbeam as a defendant because Manchester had alleged in its answer to the second amended complaint that Sunbeam was one of the parties who caused or contributed to the Townes's injuries.\\nI.\\nRelation-Back Under Tenn.R.Civ.P. 15.03\\nWe turn first to the Townes's claim that they should be permitted to rely on the relation-back provisions in Tenn. R.Civ.P. 15.03 to save their new claims against Sunbeam from the fatal operation of the statute of limitations. The trial court held that the Townes could not take advantage of TenmR.Civ.P. 15.03 because they had been delinquent in discovering Sunbeam's connection with the manufacturing of the propane tank. While we have concluded that delinquency in discovery is not an appropriate consideration with regard to the application of Tenn. R.Civ.P. 15.03, we have determined that the rule does not apply in this case because the Townes have not met the rule's \\\"mistake or misnomer\\\" requirement.\\nThe courts should construe Tenn. R.Civ.P. 15.03 liberally to promote the consideration of claims on their merits. Floyd v. Rentrop, 675 S.W.2d 165, 168 (Tenn.1984); McCracken v. Brentwood United Methodist Church, 958 S.W.2d 792, 794 (Tenn.Ct.App.1997). However, Tenn. R.Civ.P. 15.03 should not be used to breathe life into claims that are plainly time-barred. Turner v. Aldor Co. of Nashville, Inc., 827 S.W.2d 318, 321-22 (Tenn.Ct.App.1991).\\nThe purpose of Tenn.R.Civ.P. 15.03 is to enable parties to correct the \\\"mislabeling of a party they intended to sue,\\\" Grantham v. Jackson-Madison County Gen. Hosp. Dist., 954 S.W.2d 36, 38 (Tenn.1997), not to add a new party who was simply overlooked. Rainey Bros. Constr. Co. v. Memphis & Shelby County Bd. of Adjustment, 821 S.W.2d 938, 941 (Tenn.Ct.App.1991); Smith v. Southeastern Props., Ltd., 776 S.W.2d 106, 109 (Tenn.Ct.App.1989). Thus, the rule does not apply when a plaintiff seeks to amend its complaint to add a defendant that it previously nonsuit-ed. Bennett v. Town & Country Ford, Inc., 816 S.W.2d 52, 54 (Tenn.Ct.App.1991).\\nThe outcome of this issue is controlled by the Bennett v. Town & Country Ford, Inc. decision. The Townes originally sued Sunbeam but later freely and voluntarily nonsuited the company. Their attempt to reinstitute their claims against Sunbeam got its impetus, not from any mistake that the Townes made regarding Sunbeam's name or identity, but rather from their later realization that they might have other claims against Sunbeam that had not been included in their original complaint. The relation-back feature of Tenn.R.Civ.P. 15.03 does not permit a plaintiff to renew its suit against a defendant after the plaintiff has voluntarily dismissed its original claims against the defendant in accordance with Tenn.R.Civ.P. 41.01.\\nII.\\nAmendments Permitted'By Tenn.Code Ann. \\u00a7 20-1-119\\nThe Townes also assert that the trial court erred by refusing to permit them to amend their complaint pursuant to TenmCode Ann. \\u00a7 20-1-119 to add Sunbeam as a defendant after Manchester's answer to their second amended complaint named Sunbeam as an entity who caused or contributed to their injuries. The trial court held that Tenn.Code Ann. \\u00a7 20-1-119 did not apply because Sunbeam was not an \\\"unknown entity\\\" to the Townes when Manchester named Sunbeam as a comparative tortfeasor in its answer. We have determined that the trial court interpreted Tenn.Code Ann. \\u00a7 20-1-119 too narrowly.\\nThe Tennessee Supreme Court abolished the doctrine of joint and several liability when it superimposed its current comparative fault scheme on the traditional rules of contributory negligence. McIntyre v. Balentine, 833 S.W.2d 52, 58 (Tenn.1992). TenmCode Ann. \\u00a7 20-1-119 is the Tennessee General Assembly's response. Brown v. Wal-Mart Disc. Cities, 12 S.W.3d 785, 788 (Tenn.2000); Browder v. Morris, 975 S.W.2d 308, 312 (Tenn.1998). The statute is intended to provide an injured party with a fair opportunity to bring before the court all persons who caused or contributed to the party's injuries. In the words of the Tennessee Supreme Court, Tenn.Code Ann. \\u00a7 20-1-119\\nallows a plaintiff a limited time within which to amend a complaint to add as a defendant any person alleged by another defendant to have caused or contributed to the injury, even if the statute of limitations applicable to a plaintiffs cause of action against the added defendant has expired.\\nOwens v. Truckstops of Am., 915 S.W.2d 420, 427 (Tenn.1996). In light of the statute's purpose and the Owens court's use of the pirrase \\\"any person,\\\" we have determined that it is remedial and should be construed liberally.\\nIII.\\nTenn.Code Ann. \\u00a7 20-1-119 Not Restricted to Unknown Comparative Tortfeasors\\nThe trial court and Sunbeam assert that the Townes cannot take advantage of Tenn.Code Ann. \\u00a7 20-1-119 because they were aware of Sunbeam when they filed their original complaint. This argument relies heavily on a decision by the United States Court of Appeals for the Sixth Circuit holding that Tenn.Code Ann. \\u00a7 20-1-119 applies only to comparative tortfeasors unknown to the plaintiff until the filing of the defendant's answer. Whittlesey v. Cole, 142 F.3d 340, 345 (6th Cir.1998). At least one panel of this court has adopted the Sixth Circuit's construction of Tenn. Code Ann. \\u00a7 20-1-119. Lipscomb v. Doe, No. 02A01-9711-CV-00293, 1998 WL 886601, at * 3-4, 1998 WL 886601 (Tenn.Ct.App. Dec.16, 1998), rev'd on other grounds, 32 S.W.3d 840 (Tenn.2000).\\nState law must be applied in diversity cases filed in federal court that do not involve a federal question. The federal courts look to the law of the state as declared by its highest court when they decide questions of state law. In the absence of an authoritative pronouncement by the state's highest court, the federal courts may either certify the state law question to the state's highest court for an authoritative interpretation, Tenn.S.Ct .R. 23; Arizonans for Official English v. Arizona, 520 U.S. 43, 76-78, 117 S.Ct. 1055, 1073-74, 137 L.Ed.2d 170 (1997), or ascertain and apply the state law as they understand it from available sources. United States v. Anderson County, 761 F.2d 1169, 1173 (6th Cir.1985); Werthan Bag Corp. v. Agnew, 202 F.2d 119, 124-25 (6th Cir. 1953). When a federal court undertakes to decide a state law question in the absence of authoritative state precedent, the state courts are not bound to follow the federal court's decision. Thus, while we have utmost respect for the United States Court of Appeals for the Sixth Circuit, its interpretation and application of state law is not binding on this court. See State ex rel. Elvis Presley Int'l Mem. Found, v. Crowell, 733 S.W.2d 89, 97 (Tenn.Ct.App.1987) (declining to follow the United States Court of Appeals for the Sixth Circuit's construction of state property law).\\nBy the same token, our colleagues' interpretation of Tenn.Code Ann. \\u00a7 20-1-119 is not binding on us either. While we are hesitant to part company with our colleagues on questions of law, the Lipscomb v. Doe opinion is not \\\"controlling authority\\\" because it has not been reported in the official reporter. Tenn.S.Ct.R. 4(H)(2). In addition, we note that Lipscomb v. Doe has been reversed by the Tennessee Supreme Court. Lipscomb v. Doe, 32 S.W.3d 840 (Tenn.2000). While the majority of the court pretermitted construing Tenn. Code Ann. \\u00a7 20-1-119, one justice concluded that the Lipscomb v. Doe court misconstrued the statute. Lipscomb v. Doe, 32 S.W.3d at 850-52 (Holder, J., concurring and dissenting). While the conclusions of a single justice are not necessarily harbingers of how the court may ultimately construe Tenn.Code Ann. \\u00a7 20-1-119, they provide a basis for concluding that further examination of the issue is in order.\\nTenn.Code Ann. \\u00a7 20-1-119 makes no reference to a plaintiffs diligence in discovering the identity of potentially liable parties. The statute provides a plaintiff with a ninety-day window within which to assert a claim against a comparative tortfeasor as long as two conditions are met. The first condition is that one of the defendants must name the comparative tortfeasor as one who \\\"caused or contributed to the injury or damage for which the plaintiff seeks recovery.\\\" The second condition is that the named comparative tort-feasor is \\\"not a party to the suit.\\\" In light of the plain language of Tenn.Code Ann. \\u00a7 20-1-119, we conclude that a plaintiffs knowledge of the existence of other persons who might be liable for the plaintiffs injuries is irrelevant.\\nIn addition to the plain language of Tenn.Code Ann. \\u00a7 20-1-119, there are two reasons for declining to follow the Whittlesey v. Cole and Lipscomb v. Doe decisions. First, they overlook a traditional aspect of trial strategy. Prior to McIntyre v. Balentine, plaintiffs retained complete discretion regarding their selection of defendants. They were not required to sue every person who might have caused or contributed to their injury because the doctrine of joint and several liability provided them a legal vehicle for obtaining a full recovery. The abolition of joint and several liability in 1992 shifted to the plaintiff the entire burden of discovering all the potential tortfeasors. It also greatly reduced a plaintiffs discretion regarding the choice of defendants because failing to name a potentially liable party increased the likelihood that the plaintiff would not be made whole. Thus, if anything, Tenn. Code Ann. \\u00a7 20-1-119 simply preserves a plaintiffs prerogative to select defendants just as they were able to before McIntyre v. Balentine was decided.\\nThe second reason for declining to follow the Whittlesey v. Cole and Lipscomb v. Doe opinions is more pragmatic. Basing the application of Tenn.Code Ann. \\u00a7 20-1-119 on what the plaintiff knew or should have known when the plaintiff filed its original complaint will require the courts to become embroiled in cumbersome and difficult inquiries having little to do with the parties' fault. The newly added defendant, as the moving party, will have the burden of proving what the plaintiff knew or should have known when it filed its complaint. As a practical matter, this evidence can come only from the plaintiff and the plaintiffs lawyer. Thus, pursuing this inquiry will inevitably ensnarl the courts in difficult questions of lawyer-client privilege, attorney work product, and perhaps legal competence. None of these inquiries were relevant before McIntyre v. Balentine was decided, and they should remain irrelevant today.\\nIV.\\nWhen To Determine Sunbeam's Status as a Party\\nSunbeam also asserts that the Townes cannot take advantage of Tenn. Code Ann. \\u00a7 20-1-119 because it became a party to the action after the Townes filed their second amended complaint. Because Tenn.Code Ann. \\u00a7 20-1-119, by its own terms, applies only to added defendants who are \\\"not a party to the suit,\\\" Sunbeam's argument requires us to decide when the determination of an added defendant's status must be made.\\nWe have already concluded that Tenn. Code Ann. \\u00a7 20-1-119 should be construed liberally to enable plaintiffs to have their claims adjudicated on the merits. Consistent with this construction, we have concluded that an added defendant's status as a party should be determined, not when the original defendant names the added defendant as an additional comparative tortfeasor in its answer or amended answer, but rather when the plaintiff either seeks to amend its complaint to name the additional comparative tortfeasor as an additional defendant or to file a separate complaint against the additional comparative tortfeasor.\\nThe Townes originally attempted to bring Sunbeam back into the case when they filed their second amended complaint; Sunbeam actually became a party to the case in June 1997 when the trial court permitted the Townes to file this amended complaint. After Sunbeam asserted its statute of limitations defense, the Townes argued that their new claim against Sunbeam was not time-barred either because it related back to their original complaint under Tenn.R.Civ.P. 15.03 or because they filed it within ninety days after Manchester answered their second amended complaint. There is no question that Sunbeam was a party to the case when the Townes first invoked Tenn.Code Ann. \\u00a7 20-1-119. Accordingly, the trial court correctly determined at the September 26, 1997 hearing that the Townes could not take advantage of Tenn.Code Ann. \\u00a7 20-1-119.\\nHowever, Sunbeam's status changed as a result of the trial court's decision at the September 26, 1997 hearing. Because the Townes could not take advantage of the relation-back features of Tenn.R.Civ.P. 15.03, their claims against Sunbeam were dismissed because they were time-barred. Since the Townes s claims against Sunbeam had been dismissed, Sunbeam was no longer a party when the Townes moved to file their third amended complaint on October 3, 1997. In this circumstance, the application of Tenn.Code Ann. \\u00a7 20-1-119 hinged on whether the Townes had sought to amend their complaint to add new claims against Sunbeam within ninety (90) days after Manchester identified Sunbeam as a party who caused or contributed to the Townes's damages. Manchester's answer to the Townes's second amended complaint was filed on September 4, 1997, and thus the Townes's third amended complaint, filed approximately one month later, was well within the ninety-day period required by Tenn.Code Ann. \\u00a7 20-1-119(a). Accordingly, the trial court erred by denying the Townes's motion to file their third amended complaint naming Sunbeam as a party to this action.\\ny.\\nWe affirm the October 17, 1997 order dismissing the Townes's new claims against Sunbeam. However, we reverse the October 29, 1997 order denying the Townes's motion to file their third amended complaint asserting claims against Sunbeam in accordance with Tenn.Code Ann. \\u00a7 20-1-119. We remand the case to the trial court for further proceedings consistent with this opinion and tax the costs of this appeal to the Sunbeam Oster Company, Inc. for which execution, if necessary, may issue.\\n. In September 1995, the Townes amended their complaint to add Shell Oil Company (\\\"Shell\\\") as a defendant after Suburban asserted that Shell had manufactured the propane gas that was in the tank when it exploded.\\n. The trial court entered an order confirming the nonsuit on August 17, 1995.\\n.These safety devices consisted of a stop-fill device which prevented overfilling the propane tank and a quick disconnect coupling that prevented the escape of propane gas from a disconnected tank with an open or partially open valve.\\n. The order embodying the trial court's rulings during the September 26, 1997 hearing was filed on October 17, 1997.\\n. An appellate court may affirm a trial court's decision that reaches a correct result even if the appellate court does not agree with the trial court's reasoning. Continental Cas. Co. v. Smith, 720 S.W.2d 48, 50 (Tenn.1986); Hutcherson v. Criner, 11 S.W.3d 126, 136 (Tenn.Ct.App.1999).\\n. The text of Tenn.Code Ann. \\u00a7 20-1-119 is so clear that we need not consult its legislative history to ascertain the General Assembly's intent. However, the transcripts of the legislators' discussions regarding this statute in committee and on both the House and Senate floor point to the probable source of the notion that the statute is limited to defendants unknown to the plaintiff when it filed its original complaint. When the bill's sponsors explained how the bill worked, they used examples featuring \\\"phantom\\\" or \\\"unknown\\\" defendants. However, these examples were simply explanations of the most common circumstance when the proposed statute could be invoked, and, when taken in context, were not intended to limit the bill's application. Even if they had been, the statements of a bill's sponsors cannot alter the plain meaning of a statute. D. Canale & Co. v. Celauro, 765 S.W.2d 736, 738 (Tenn.1989); BellSouth Telecomm., Inc. v. Greer, 972 S.W.2d 663, 674 (Tenn.Ct.App.1997).\"}"

tenn/11263617.json

@@ -0,0 +1 @@
+"{\"id\": \"11263617\", \"name\": \"Citizens' National Bank v. A. J. Watkins et al.\", \"name_abbreviation\": \"Citizens' National Bank v. Watkins\", \"decision_date\": \"1912-09\", \"docket_number\": \"\", \"first_page\": \"453\", \"last_page\": \"460\", \"citations\": \"126 Tenn. 453\", \"volume\": \"126\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T18:23:44.659016+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Citizens' National Bank v. A. J. Watkins et al.\", \"head_matter\": \"Citizens' National Bank v. A. J. Watkins et al.\\n(Knoxville.\\nSeptember Term, 1912.)\\n1. TRUSTS AND TRUSTEES. Trust deed imposing active duties upon the trustee creates an active trust.\\nWhere a deed conveyed land in trust for the benefit of the grantor for life, and then for others, requiring the trustee to keep the property in repair, collect rents-, pay taxes and insurance, and, at the death of the grantor, to convey the land to the grantor\\u2019s daughter, if living, and if not living, then imposing certain other active duties upon the trustee, or his successor, in respect of the land, such deed created an active trust. (Post, pp. 455-457.)\\nCases cited and approved: Jourolmon v. Massengill,. 86 Tenn., 81; Henson v. Wright, 88 Tenn., 501.\\n2. SAME. Estate of cestui que trust under an active trust is an equitable one; and may be reached by judgment creditors, when.\\nWhere trust deed creates an active trust, the estate of the cestui que trust is a permanent equitable estate, which can he reached only by a judgment creditor, where the deed is valid and there is no fraud. (Post, p. 457.)\\nCase cited and approved: McKeldin v. Gouldy, 91 Tenn., 677.\\n3. FRAUDULENT CONVEYANCES. General creditors may subject land conveyed in trust for grantor\\u2019s benefit in fraud of creditors.\\nWhere a deed conveying land in trust was a fraudulent conveyance, or merely a device to hinder and delay the grantor\\u2019s creditors-, an existing or subsequent creditor, whether with or without judgment, may file his bill in chancery and subject the land to the satisfaction of his debt, as provided by section 6097 of Shannon\\u2019s Code. (Post, pp. 457, 458.)\\nCode cited and construed: Sec. 6097 (S.); sec. 5031 (M. & V.); sec. 4288 (T. & S. and 1858).\\nCases cited and approved: August v. Seeskind, 6 Cold., 166; Brooks v. Gibson, 7 Lea, 271; Menkin v. Brinkley, 94 Tenn., 721.\\n4. SAME. Deed creating trust for benefit of grantor is void upon its face, as to his creditors who may subject the land by bill in ohancery, without other proof of fraud.\\nWhere the absolute owner of the legal title and beneficial use of certain land conveyed the same to his brother by name, in trust to keep the property in repair, collect the rents, pay the taxes and insurance, and to pay the remainder of the income to the grantor, during his life, and, at his death, to convey the land to the grantor\\u2019s daughter in fee, if living, and, if not then living, then imposing certain other active duties upon the trustee and his successor, such deed evidenced,' on its face, an illegal scheme to hinder and delay creditors, and was invalid as to them, and such land may be subjected to the payment of the grantor\\u2019s debts by a chancery bill alleging that the conveyance was fraudulent, and was made for the purpose of hindering and delaying creditors, without any further proof of the fraudulent arrangement than the terms of the instrument itself. {Post, pp. 458-460.)\\nCode cited and construed: Sec. 6097 (S.); sec. 5031 (M. & V.); sec. 4288 (T. & S. and 1858).\\nCases cited and approved: Menkin v. Brinkley, 94 Tenn., 721; Nolan v. Nolan, 218 Pa., 135; Sargent v. Burdett, 96 Ga., Ill; Petty v. Sanitarium, 110 Va., 815.\\nPROM HAMILTON.\\nAppeal from tlie Ohancery Court of Hamilton County. \\u2014T. M. McConnell, Chancellor.\\nE. B. Cook, for complainant,\\nPRitchaRd & Sizer, for defendants.\\nAs to what constitutes a directory or an active trust, see note in 11 L. R. A. (N. S.), 331.\", \"word_count\": \"1990\", \"char_count\": \"11258\", \"text\": \"Mr. Justice Lansden\\ndelivered the opinion of the Conrt.\\nThe complainant is the owner of the defendant's note in the sum of $525.25, and filed this bill in the chancery court of Hamilton county, praying for judgment upon the note, and assailing a certain conveyance made by the defendant to his brother, as trustee, upon trust for the donor himself, as fraudulent and void, as hindering and delaying creditors. The conveyance assailed provides as follows:\\n\\\"To keep said property in repair and collect, or have collected, all rents arising from said property, and to pay all taxes legally assessed against same, and to keep insured, if in the discretion of the trustee it should be done, and to such amount as the trustee deems necessary, the above expenses to be paid out of the income, likewise all other legitimate expenses arising from said trust, and the remainder of the income of every kind arising from said property the trustee will pay over to A. J. Watkins during his lifetime, it being my [A. J. Watkins'] intention to retain all the net income after the expenses are paid during my natural life (the property hereby conveyed being absolutely my own). And at my death the trustee will convey the property to my daughter, Helen E. Watkins, in fee simple, if she has at that time reached the age of twenty-one years, free from the debts, contracts, control, or obligation or any marital rights of her husband at that time, if she be married, or any future husband that the said Helen R. Watkins may have. If not, said trustee will hold such property until she does arrive at the age of twenty-one years, and then convey to her in fee simple as above described.\\n\\\"In case of the death or resignation or inability of the said trustee during the existence of this trust, then my mother, Helen Watkins, shall succeed Chester Watkins as trustee, and have power as here is invested in the original trustee, and continue the trust as aforesaid. If, during the existence of said trust, it shall be deemed best by' the trustee or his successors in trust, said trustee or his successors in trust may at will sell any portion or all of said real estate for investment, or for any other purpose deemed necessary, by said trustee, and the same may be done by said trustee, and a good title vested in the purchaser, provided I join in the deed of conveyance. In the event of the death of Helen R. Watkins, the beneficiary herein named, she dying without issue during the lifetime of the said A. J. Watkins, the trustee will reconvey all of the above described property to said A. J. Watkins in fee simple; but if said A. J. Watkins is dead at that time, the aforesaid trustee will convey said real estate in fee simple to my brothers, R. M. and Chester Watkins.\\\"\\nThe answer of the defendant denied the fraud charged in the bill, and set up and relied upon the validity of the deed of trust. There is no proof in the record to support the charges of fraud made in the bill, other than the deed itself.\\nIt is insisted for .the defendant that the trust created by the deed in controversy is an active one, imposing certain specific duties upon the trustee, such as keeping the property in repair, collecting rents, paying taxes and insurance, and at the death of the grantor to convey the property to his daughter if living, and if not living, then imposing certain other active duties upon the trustee or his successor in respect of the property.\\nIt is argued from this that the complainant, being a subsequent creditor at large, is entitled to no relief, upon the authority of McKeldin v. Gouldy, 91 Tenn., 677, 20 S. W., 231.\\nWhether this is true depends upon the legal effect to be given to the deed of trust. If the deed is valid, the trust created is an active one. Henson v. Wright, 88 Tenn., 501, 12 S. W., 1035; Jourolmon v. Massengill, 86 Tenn., 81, 5 S. W., 719. In such trusts the estate of the cestui quo trust is a permanent equitable estate, and the complainant's remedy is properly set forth in McKeldin v. Gouldy, supra. But if the deed of trust is a fraudulent conveyance of the property, or merely a device resorted to for the purpose of hindering and delaying creditors, a creditor at large may file his bill in the chancery court and subject the property to the satisfaction of his debt. Shannon's Code, sec. 6097; Brooks v. Gibson, 7 Lea, 271; August v. Seeskind, 6 Cold., 166. This particular class of spendthrift trusts has evoked an expression of opinion from the courts of last resort of the various States where the doctrine of spendthrift trusts is recognized, which seems to he unanimous, and in all of them which have fallen under our observation, a deed executed by the donor to a trustee to secure to himself the benefits of the property conveyed is absolutely void as against both existing and subsequent creditors. The general policy of the law is that creditors have the right to resort to all the property of the debtor for the satisfaction of their debts, except SO' far as the debtor is given specific exemption by the statutes of the State; and by our (Shannon's) Code, sec. 6097, conveyances for the purpose of hindering and delaying creditors are declared void. In Menkin v. Brinkley, 94 Tenn., 721, 31 S. W., 92, it was stated generally that: where the owner of property conveyed it in trust, making himself the cestui que trust, that such conveyance was void. However, in that case, the complainants were judgment creditors with nulla bona return, and the question of procedure presented upon the assignments of error in this case was not considered. The general doctrine stated in Menkin v. Brinkley, supra, has been repeatedly announced by the various courts of the Union. In Nolan v. Nolan, 218 Pa., 135, 67 Atl., 52, 12 L. R. A. (N. S.), 369, it was said:\\n\\\"It is against public policy, and not consonant with natural justice and fair dealing as between debtor and creditor, that a settlor should be permitted to play fast and loose with his property in such a manner as to have the use of the income during life and the right of dis posing of t-lio principal by will at any subsequent time he chooses to exercise the power, thus giving him all of the substantial benefits arising from the ownership thereof, while he has safely put his property beyond, the reach of creditors.\\\" Sargent v. Burdett, 96 Ga., 111, 22 S. E., 667; Petty v. Moores Brooks Sanitarium, 110 Va., 815, 67 S. E., 355, 27 L. R. A. (N. S.), 800, 19 Ann. Cas., 271.\\nFrom the nature of the deed of trust in question we are of opinion that its legal effect amounts to nothing more than a scheme to hinder and delay creditors in the collection of their debts. No other proof of the scheme is required than the terms of the instrument itself. The defendant was already possessed of an estate in the property of his own right, holding the legal title and the beneficial use, and the only benefit which he could acquire by the conveyance to his brother in trust for himself would be to hinder and delay creditors in the collection of their debts. He cannot own the property and not own it at the same time. Whatever might be said of the justice or honesty of the arrangement in point of morals, it is enough that such conveyance contravenes a sound public policy atmounced in Menkin v. Brinkley, supra, and is therefore void. Being void, it may be reached by the bill in this case, upon an allegation that the conveyance is fraudulent, and was made for the purpose of hindering and delaying creditors, without any further proof of the fraudulent arrangement than the instrument itself. Its inevitable effect is to hinder and delay creditors, and the maker mnst be conclusively presumed to have so intended.'\\nThe court of civil appeals reached the same conclusion, but upon different grounds, and its decree is affirmed, with costs.\"}"

tenn/11264591.json

@@ -0,0 +1 @@
+"{\"id\": \"11264591\", \"name\": \"Rogers & Perry et al. v. A. T. Newman et al.\", \"name_abbreviation\": \"Rogers v. Newman\", \"decision_date\": \"1880-09\", \"docket_number\": \"\", \"first_page\": \"255\", \"last_page\": \"257\", \"citations\": \"73 Tenn. 255\", \"volume\": \"73\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T19:57:52.550956+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Rogers & Perry et al. v. A. T. Newman et al.\", \"head_matter\": \"Rogers & Perry et al. v. A. T. Newman et al.\\nAttachment in Equity. Appeal bond. Judgment thereon. Where an attachment is sued out in equity upon proper averments under the Code, sec. 3455 et seguente, fiats obtained, and proceedings had in conformity therewith, the debtor acquiescing therein, and, upon appeal, giving bond for the appeal conditioned for the payment of the debt, the complainants, on affirmance, will be entitled to a judgment on the appeal bond for the recovery below, notwithstanding a prayer in the bill for relief beyond that which follows an attachment at law.\\nEBOM JEFFERSON.\\nAppeal from the Chancery Court at Dandridge. H. C. Smith, Ch.\\nG. AV. Pickle and W. McSweeN for complainants.\\nO. C. KiNtt for defendant.\", \"word_count\": \"591\", \"char_count\": \"3495\", \"text\": \"Cooper, J.,\\ndelivered the opinion of the court.\\nOn a former day of the term, the chancellor's decree in favor of the complainants as attaching creditors of Newman, and subjecting the property attached to the satisfaction of their debts, was affirmed. The complainants now move for judgment against Newman and the sureties on his appeal bond for the amount of their respective judgments in the court below, with interest. Newman alone appealed, and he gave bond for the appeal in about double the amount of the several judgments of the complainants. The bond, after reciting the several judgments, is conditioned to \\\" satisfy the amount of said decree and interest according to the terms thereof,\\\" as well as such damages and costs as may be adjudged.\\nThe bills, with some variation in the language used, charge in substance that Newman had fraudulently disposed of his property for the purpose of defrauding his creditors, and had left the State, or so absconded that the ordinary process of the law cannot be served upon. him. The prayer of each bill is that the conveyances therein set out be declared fraudulent and void, and the property subjected to the satisfaction of complainants' debts. The fiats for the attachments were granted by the clerk and master; except in the case of Peter Kern, when the order was by the chancellor. And the proceedings were had under the Code, sec. 3455 et seq.\\nThe complainants intended to sue out attachments under the Code, sec. 3455, and the causes of attach ment are assigned and proceedings bad in conformity therewith. No objection was taken by the defendant Newman to the attachments because the fiats were granted by the clerk and master. If the attachments are to be treated as sued out under that section, the defendant could only appeal by giving bond with security for the payment of the recovery, unless the appeal were prosecuted under the pauper oath. Staub v. Williams, 1 Lea, 123. And the defendant has given an appeal bond accordingly. The prayer of the bill that the fraudulent conveyance be set aside is, it is true, more than the creditor is entitled to by an attachment at law, and is a circumstance tending to show that the proceedings were taken under the Code, sec. 4288. By itself, however, it is not sufficient to overcome the other and weightier circumstances to the contrary, where the debtor has acquiesced in the construction put upon the attachments by the complainants. In this view, it becomes unnecessary to consider whether the appeal bond should not also be conditioned for the payment of the debt, when the attachment is sued out under the Code, sec. 4288, where the recovery of judgment on the creditor's demand is had for the first time in the attachment suit.\\nOrdered accordingly.\"}"

tenn/11264759.json

@@ -0,0 +1 @@
+"{\"id\": \"11264759\", \"name\": \"Jobe v. Chedister and Wife\", \"name_abbreviation\": \"Jobe v. Chedister\", \"decision_date\": \"1880-09\", \"docket_number\": \"\", \"first_page\": \"346\", \"last_page\": \"347\", \"citations\": \"73 Tenn. 346\", \"volume\": \"73\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T19:57:52.550956+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jobe v. Chedister and Wife.\", \"head_matter\": \"Jobe v. Chedister and Wife.\\nVendor\\u2019s Lien Waiver. Taking a note, not by way o\\u00ed security, but as a mode of payment o\\u00ed the price of land, is a waiver of tbe lien.\\nFROM WASHINGTON.\\nAppeal from the Chancery Court at Jonesboro. H. C. Smith, Ch.\\nS. J. Kirkpatbiok for complainant.\\nJ. G. Deaderick for defendants.\", \"word_count\": \"386\", \"char_count\": \"2106\", \"text\": \"Freeman, J.,\\ndelivered the opinion of the court.\\nComplainant sold to the defendant, making a deed to the wife, a lot in Johnson City. In part payment he received a note on one Miller, who was a house-carpenter and then at work for him, and to whom he was indebted. He failed to collect a balance on this Miller note, and now files his bill to enforce his supposed lien.\\nThe only real question in the case is, whether the note was taken as an absolute payment, or only as a means of realizing the debt, which, if not collected in this way, would still remain against the purchaser. The.case of Denny v. Steakly & Goff, 2 Heis., 156, apparently goes on the idea that, in such a case, on failure to realize the money on a note thus paid for land, the original lien remains, independent of the question of intention, or as a matter of legal inference. But it is evident such could not have been the meaning of the learned chief justice, and if it was it is not correct. The opinion of Judge Turney, in same volume, p. 169, holds that where the notes are taken as an absolute payment the lien is discharged, as is the debt. There can be no doubt this is the law of the case.\\nOn the facts we need but say the weight of the proof is, the note was taken as an absolute payment. Complainant, in' his deposition, rather sustains his view of the matter, but respondent is more definite and distinct to the contrary. Admit them to be of equal weight, and the written receipt in the face of the deed of this note in payment,. together with the fact of an after settlement and ascertained indebtedness from complainant to defendant, without mentioning this claim, together with all the other circumstances, make the scale turn decidedly in favor of respondent.\\nReverse the decree and dismiss the bill with costs.\"}"

tenn/11264889.json

@@ -0,0 +1 @@
+"{\"id\": \"11264889\", \"name\": \"Robert Wry v. Eliza J. Cutler and others\", \"name_abbreviation\": \"Wry v. Cutler\", \"decision_date\": \"1873-04\", \"docket_number\": \"\", \"first_page\": \"28\", \"last_page\": \"30\", \"citations\": \"12 Heisk. 28\", \"volume\": \"59\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T19:53:21.769587+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert Wry v. Eliza J. Cutler and others.\", \"head_matter\": \"Robert Wry v. Eliza J. Cutler and others.\\n\\u25a0Writing. Parol evidence to defeat or vary. A court of equity will admit parol evidence to defeat or vary the terms of a writing, upon the ground of fraud, accident, or mistake; hut it exacts the clearest and most satisfactory evidence of the existence of such grounds of relief; and, in the absence of such evidence, the writing must be taken as the only veritable exposition of the contract.\\nFROM OBION.\\nFrom the Chancery Court of Obion County, October Term, 1871. John Somers, Ch.\\nH. L. Bentley and Cochean & Enloe, for complainants.\\nAlex. W. Campbell and D. M. Caedwell, for defendants.\", \"word_count\": \"557\", \"char_count\": \"3225\", \"text\": \"Sneed, J.,\\ndelivered the opinion of the court.\\nWhen parties have entered into a written contract, the writing must be treated as a full, perfect, and correct expression of their intent, until the contrary be established beyond controversy. 1 Story's Eq. Jur., sec. 152.\\nA court of equity will admit parol evidence to defeat or vary the terms of a writing, upon the ground of fraud, accident, or mistake; but it exacts the clearest and most satisfactory evidence of the existence of such grounds of relief; and, in the absence of such evidence, the writing must be taken as the only veritable exposition of the contract.\\nIn December, 1863, Wry sold to Cutler a tract of land of seventy acres for three thousand dollars, and executed his title bond showing an absolute and unconditional sale, and binding himself to make title when the purchase money was paid, which was secured by Cutler's four notes, at one, two, three, and four years. After the death of Cutler, this bill' was filed by Wry, alleging that the sale was a mere device to save the property from confiscation or destruction by the Federal government, then at war with the Southern States, of which Tennessee was one, and that Cutler in his lifetime, and after the danger had passed away, ;had refused to give up the property, and was attempting, in disregard of the parol agreement, fraudulently to hold the same.\\nThese averments of the bill are denied in their answer, by Cutler's widow, heirs, and representatives, who assert that the transaction was an actual sale without conditions.\\nMuch proof was taken, but after a very careful review of it we must pronounce it insufficient to establish the allegations of the bill.\\nIndeed, beside the deposition of the widow of the complainant, which is incompetent, we have no very clear or satisfactory evidence that the real contract between the parties was as alleged in the bill j while there is much proof tending to the contrary, and some acts and declarations of Wry are shown utterly inconsistent with the theory assumed in this behalf.\\nThe prayer of the bill is for a cancellation of the title bond, and that the complainant be restored to possession, with an account for rents and profits; or that, if this relief be not allowed, the complainant's lien as vendor be enforced by a sale of the land.\\nThe Chancellor held the contract to be binding as interpreted by the writing, and granted the relief last prayed for, \\u2014 that the vendor's lien be enforced. The decree will be affirmed. The costs of this court will be paid by the complainant; the costs below as adjudged there.\"}"

tenn/11265467.json

@@ -0,0 +1 @@
+"{\"id\": \"11265467\", \"name\": \"William Kennedy vs. Ananias Pitts et al.\", \"name_abbreviation\": \"Kennedy v. Pitts\", \"decision_date\": \"1857-12\", \"docket_number\": \"\", \"first_page\": \"91\", \"last_page\": \"94\", \"citations\": \"5 Sneed 91\", \"volume\": \"37\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T23:33:25.581874+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William Kennedy vs. Ananias Pitts et al.\", \"head_matter\": \"William Kennedy vs. Ananias Pitts et al.\\nCoustbuctioN of Wbiti\\u00edtgs. Deed of Trust. Surety. Where a deed of trust to secure creditors and indemnify securities, designated certain preferred debts, upon which the bargainors mother and brother were sureties, and upon some of which other parties were co-sureties with them, and recited that the conveyance was primarily made to indemnify his said brother and mother; it is held, that any co-security, upon either of said debts, who has been compelled to pay any part thereof, instantly acquired a lien on said fund, and was entitled to have satisfaction pari passu with the other securities, who have also contributed to said payment.\\nEROM GILES.\\nThis bill was filed in the Chancery Court at Pulaski, to obtain, among other things, a construction of a deed of trust, executed by the defendant, Ananias Pitts, for the indemnity of certain securities, and the security of certain creditors. At the September Term, 1857, Chancellor Frierson rendered a decree, declaring the rights of the parties; from which Gr. W. Pitts appealed.\\nWalker and BrowN, for tbe appellant.\\nLester, for tbe appellee.\", \"word_count\": \"887\", \"char_count\": \"5106\", \"text\": \"MoKiNNEY, J.,\\ndelivered tbe opinion of tbe Court.\\nOn tbe 5th of February, 1855, Ananias Pitts, being embarrassed, and in a failing condition, made a conveyance of all bis property, real and personal, to a trustee, for tbe benefit of bis creditors, and for tbe indemnity of certain of bis sureties: and more especially for tbe indemnity of Sarah Pitts and George W. Pitts, bis mother and brother. Tbe deed specifically enumerated a class of debts, for tbe payment of which said Sarah and George, or one of them, stood bound as surety; and in some instances, third persons were- jointly bound as sureties, with Sarah and George, or one of them. And with reference to this class of debts, tbe deed of trust contains tbe following provision, viz: \\u2014 \\\" I desire all tbe before enumerated and specified debts on which tbe said Sarah and G. W. Pitts are bound, and liable as security, or stayor for me, to be first paid by said trustee out of this trust fund; and this conveyance is primarily made, to secure and indemnify them against loss by reason of any debt of mine for which they, or either of them is bound.\\\"\\nEor one of tbe debts thus provided for, tbe defendant, Oliver, was bound as a co-surety with G. W. Pitts, and in discharge thereof, paid upwards of $1000, about tbe twenty-eighth February, 1857. Others of tbe defendants, are in tbe same category with Oliver, and the trust fund being insufficient to discharge the full amount of the preferred debts, tbe question has been made between the co-sureties, upon whom the loss shall fall. Eor the defendants, Sarah and Gr. W. Pitts, it has been assumed that, by force of the before recited provision of the deed of trust, the defendant, Oliver, and others, in the same -predicament, though co-sureties, and as such-, having paid certain of the preferred debts, for which said Sarah and Gr. W. Pitts were jointly liable with them, cannot be let in upon the trust fund for the satisfaction of the monies thus paid by them, until after they, said Sarah and Gr. W.- Pitts, shall have been re-imbursed fully out of said fund, all the debts, for which they have been already made liable, and likewise fully indemnified against all liability or loss as to such of said debts, as may still remain unsatisfied. This claim, on the part of Sarah and O. W. Pitts, is based upon the declaration in the deed of trust, that it was \\\"primarily made to secure and indemnify them against loss,\\\" and from which the conclusion is sought to be deduced, that the instrument must be understood as having been designed to provide merely for their personal. benefit and indemnity, and not as a security for the debts enumerated therein.\\nThis construction of the deed is not allowable. It is in direct opposition to the plain meaning of the provision relied on when taken altogether. The deed is an absolute security for the preferred debts; they are required to be first paid out of the fund, which was supposed, at the time of the making of the deed, to be amply sufficient for the discharge of all the debts embraced in the first class. And this mode of indemnity to Sarah and Gr. W. Pitts, in the mind of the maker of the -deed, was to secure, in the first place, the payment of all the debts for' which either was liable in any way, and thereby completely discharge them of their respective liabilities. Such is the plain import and construction of the deed; and the rights of the parties are not subject to be changed, in the event that has happened; the insufficiency of the fund to discharge all the preferred debts. The deed being an absolute security for the enumerated debts it follows, of course, that any co-surety who has been compelled, in whole or in part, to discharge any of said debts, thereby instantly acquired a lien on the fund, and is entitled to have satisfaction pari passu with the other sureties who may have contributed to the discharge of said debts.\\nThe decree upon this point will consequently be affirmed.\"}"

tenn/11265503.json

@@ -0,0 +1 @@
+"{\"id\": \"11265503\", \"name\": \"Nashville & Chattanooga Railroad Company v. J. N. Estes\", \"name_abbreviation\": \"Nashville & Chattanooga Railroad v. Estes\", \"decision_date\": \"1882-12\", \"docket_number\": \"\", \"first_page\": \"749\", \"last_page\": \"759\", \"citations\": \"78 Tenn. 749\", \"volume\": \"78\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T18:16:00.599686+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Nashville & Chattanooga Railroad Company v. J. N. Estes.\", \"head_matter\": \"Nashville & Chattanooga Railroad Company v. J. N. Estes.\\n' CARRIER. Destruction of property by Confederate soldiers. A common carrier is not liable for property, received witbin the Confederate lines for transportation, -which was seized and destroyed by Confederate soldiers in obedience to military orders, and of which no notice was given to the consignor.\\nPROM DAVIDSON.\\nAppeal in error from the Circuit Court of Davidson \\u2022county. jST. Baxter, J.\\nEast & Fogg for Railroad.\\nDemoss & Malone for Estes.\", \"word_count\": \"2686\", \"char_count\": \"15556\", \"text\": \"McFarland, J.,\\ndelivered the opinion of the court.\\nThis action was brought by Horton, Estes. & Co., \\u2022to recover of the railroad company the value of fifty- two' barrels of whiskey delivered to their agent at Nash-* ville, on the 5th of February, 1862, and consigned to the-plaintiff at Memphis. The cause was before this court several terms ago, upon a judgment in favor of the plaintiffs. The judgment was reversed and a new trial granted. The opinion of the court, delivered by Chief Justice Nicholson, will be found in 7 Heis., 626. A second trial also resulted in a verdict and judgment, in favor of the plaintiffs, from which the defendant has again appealed in error.\\nAn opinion was heretofore delivered affirming the-judgment, but a rehearing was granted and the cause has been reargued. In its present aspect the record presents one question which we have deemed worthy of very careful consideration. It is conceded that the whiskey was delivered to the company's agent on the. 5th of February, 1862, and an ordinary shippers receipt given; and it is conceded that the whiskey was never delivered to the consignees. At the time, the late war was in progress; Nashville and Middle Tennessee was in the occupation of the Confederate forces, and the scene of active military operations. It is claimed for the defendant that prior to the 5th of February, 1862 (when the whiskey was delivered to their-agent), their road had been seized by the Confederate military, authorities for the transportation of troops and army stores; or if not actually seized, that the commanding ' officers had given orders to the officers and-agents of the company to give the shipment of army stores and supplies preference over private freights, and that their orders were enforced by the presence of armed soldiers; and that in consequence of the enforcement of these orders, and the large amount of Confederate army stores to .be shipped, the company was unable to ship the whiskey prior to. the 18th of February. In the meantime, to-wit, on the 16th of February, the fall of Fort Donelson occurred and the-Confederate army abandoned Nashville and retreated southward, and the rear guard, on or about the 18th,, without fault, as it is claimed, on the part of the company, destroyed the whiskey at the depot at Nashville, in order to prevent it falling into the hands of the-pursuing army, and also to protect the citizens from the dangers to be apprehended if the whiskey should fall into the hands of the soldiery. The question is, assuming that there was no actual fault or negligence upon the part of the company, would these facts constitute a defense?\\nThe charge of the trial judge was in substance: that if the company assumed the liability of a common carrier with respect to the whiskey,' that is to, say, if at the time the whiskey was delivered for shipment, the road had not been actually seized and taken out of the hands of the company's agents, or if in fact the road had been so seized by the military \\u2014 still if the company chose to suppress the fact and accept the freight for transportation without qualification , of its liability \\u2014 the consignor and owners not being informed of the facts \\u2014 then and in either event, the company becomes liable as a common carrier, and being so liable, the destruction of the whiskey by the military, even though without fault upon the part of the company, would be no defense; that such destruction of the whiskey could only be a defense upon the assumption \\u2022 that the company did 'not become liable as a common carrier, for the reason that at the time the whiskey was delivered for shipment, the road had been seized by the military so as to deprive the company of its use; in which event the liability of a common carrier would not attach, unless the company suppressed the facts of seizure and accepted the whiskey for shipment unconditionally, the consignor and owners being ignorant of the facts. If for the reasons stated, the company did not become liable as a common carrier, then if the company was free from negligence, the destruction of the whiskey by the military, under a necessity which justified such action, would be a good defense.\\nThis charge was based upon' the doctrine that when the liability of a common carrier attaches, he is liable for all losses, except those which result from the act \\u2022 of God, the public enemy or the shipper, and that the ' Confederate ' military forces were not at the time and place the public enemy. It was held in the opinion \\u2022of Judge Nicholson, in this case before referred to, that the Confederate army was not to be regarded as the public enemy; but the opinion further holds, that nevertheless the destruction of the whiskey by the army \\u2014if under a necessity which justifies such appropriation \\u2022 of private property \\u2014 might, upon a different ground, constitute a defense. In support of this conclusion, Judge Nicholson -assumes that the Confederate military authorities had taken possession of the road by force and ap propriated it, to military purposes, and that \\\" for the time being the railrord company ceased to be a common carrier, and was allowed, to carry only for the army.\\\" However this assumption of fact might have been justified by the record as it then appeared, the proof was different upon last trial \\u2014 as appears from the bill of exceptions before us. The proof now indicating that the road had not been actually taken possession of by the military, but only that the company's agents were required to give preference to shipments for the army, leaving the company, however, in possession of the road and at liberty to ship private freight when, after complying with army requisitions, there was room left k: the purpose. In all events, this was a contested question of fact. So the trial judge was of opinion, that Judge Nicholson's opinion holding that the destruction of the whiskey by the Confederate forces, might be a valid defense, was upon the assumption thht the road had been actually taken out of the possession of the company, depriving it of the power to act as a common carrier, and that if the proof showed the fact to be otherwise, upon the present trial the defense would not be available. The opinion is susceptible of this construction. It, however, cannot be taken as settling the question in iavor of the view taken by the trial judge, but rather as leaving fit open and undetermined.\\nIf the present verdict rested upon the ground of the company's negligence in failing, after its inability to ship \\u2022 the whiskey was known to its agent, and after the danger from the retreating and advancing armies, became imminent, to remove the whiskey to a place of greater safety, or in failing to give notice to the owners or their agents,\\\" so that they might look after their property, it would probably be free from difficulty. But the charge holds that even though there may have been no negligence in these respects, the company would still be liable if the liability of a common carrier attached to it at the time the whiskey was received for shipment.\\nThis, therefore, is the question, to be determined. We do not doubt the correctness of the charge as to what would be sufficient to fix upon the company the liability of a common carrier, and that the liability did attach in this case. If the whiskey was destroyed by the Confederate troops \\u2014 an overpowering force \\u2014 without negligence or collusion upon the part of the carrier, there can be but one reason why this should not be a valid defense \\u2014 that is, that the carrier is an insurer \\u2022against such losses.\\nThe carrier is liable for losses by fire, theft, robbery or unavoidable accident, even though resulting from an overpowering force. jThe rule is founded upon grounds of public policy in the interest of commerce and trade.\\nThe argument for the plaintiffs is that the carrier is liable for all losses except those resulting from the act of God, the public enemy, or the shipper himself \\u2022 and it having been held that the Confederate army was not in this sense the public enemy, it must follow that the destruction of the property by the Confed-erates would be no defense.\\nBut it Ras been held that there are other exceptions to the carrier's liability, as for instance, where the property is taken from him by judicial process rightfully issued. See the case of Bliven & Mead v. Hudson River Railroad Company, 36 New York, where it is held that it is a good defense for the carrier to show that the goods were seized by judicial process at the suit of the rightful owner, provided notice be promptly given to the consignor. Also in the case of Stiles v. Davis & Barton, 1 Black., 101, it was held that' where goods are attached tih the hands of common carriers, by garnishment, in a suit' against a third person, they are in the custody of the law, and the carrier is not justified in surrendering them to the consignee until a judicial determination of the question, and until the question is determined, is not bound to deliver to the shipper on demand. In this latter case nothing special is said in the opinions about notice, but it appears that the owners demanded ihe goods of the carrier a few days after the levy of the attachment, and delivery was refused upon the ground that the earner had been summoned as garnishee in the attachment suit, thus showing actual notice.\\nThe case of Wells v. Maine Steamship Company, decided by the United States Circuit Court for Maine, Justice Clifford sitting with the District Judge (4 Clifford, 228), is also on the same subject. In that case whiskey was shipped from New York by the Steamship Company consigned to the plaintiff at Portsmouth, New Hampshire, by way of Portland, Maine, at which latter point it was the duty ol the carrier to deliver the freight to the Eastern Railroad, the next in the line. At Portland the whisky was seized by officers of the State of Maine, claiming that it was forfeited for an alleged violation of the laws of that State. A proceeding was instituted in the nature of a proceeding in rem to have the forfeiture declared, and it was so declared and the whiskey was destroyed. The owner had due notice of the seizure. It was held, Justice Clifford delivering the opinion, that the carrier was discharged from all obligation to deliver the whiskey, unless it could be shown that the court of Maine, declaring the forfeiture, had no jurisdiction, or that the law under which the seizure was made, was unconstitutional and void. Neither of which positions were, in the opinion of the court, maintained.\\nThe seizure having been made under a constitutional law, and by a process from a 'court having jurisdiction, and notice given to the owner, the carrier was discharged and not bound to show that the decision of the court declaring the whiskey forfeited was correct,, either in law or fact. The opinion refers to the case of Bliven v. Hudson River Railroad and Stiles v. Davis, above cited, besides other authorities.\\nThe case of Edwards v. White Line Trans. Company, 104 Mass., 159, holds that it is no defense to an action for breach of the contract to carry when the goods were taken out of the hands of the carrier under an attachment against a person who is not the true owner. These authorities, while not directly in point, tend to illustrate the principle involved. It is, however, not in all cases sufficient to show that the goods are taken from the carrier by an overpowering force \\u2014 for if taken by robbery and insurgents it is no defense, even though the force be overwhelming.\\nThe Confederate government having been recognized as a government de facto, having actual possession of the country, its acts in prosecuting the war, in reference to the citizens and their property, must be held to have had the same effect for the time being as the acts of a rightful government. The seizure and appropriation of private property bn accordance with the usages and customs of war must be held to have been within its powers. The citizens, therefore, would have no redress against the soldiers and others who, in obedience [to military orders, may have seized or destroyed their property. They could only have such redress as the government might choose to make. The acts of the Confederate military, therefore, in regard to the citizens and property within the territory of the Confederate States, would stand precisely as the acts of the United States forces towards the citizens of the loyal States. The property might have been seized or destroyed by the [military if in the hands of the owner. In that event he would have bad no remedy against the soldiers individually. That such property might be thus destroyed, see Harrison v. Wisdom, 7 Heis., 99.\\nDoes it alter the case that at the time of the -seizure the property of the piaintiff is in the hands of a carrier? The I. C. R. R. Co., v. Ashmead, 43 Illinois, 487, seems to recognize the doctrine that the carrier will be excused if he is prevented from complying with his undertaking by the acts of the United States military forces. And in the case of the Railroad v. Hurst, 11 Heis., 625, it was held not only that, citizens, but common carriers were justified in submitting to the orders of the military officers of the-Confederate army, and for doing so, incurred no liability to third parties.\\nThis is upon the ground not only that it .is an overpowering force \\u2014 but a force exercised in obedience to the authority of the government, having for the time being, dominion and control of the country\\u2014 which it is the duty of. citizens and subjects to obey in the same sense that it is their duty to submit to-legal process and the laws of the land.\\nThis brings us, therefore, to the conclusion that the charge of /the trial judge was erroneous, if the question we have been considering was fairly presented. It will be noticed that 'in cases above referred to,, where the goods were seized !under civil process, it was regarded as essential that the owner or consignor should be notified of the proceeding. This was for the purpose of giving him an opportunity to appear and litigate his rights.\\nNotice in a case like this, where the goods were-seized and at the same time destroyed by the military, could not be essential for the same reason. It might, however,' be important to show that the owner had either notice or actual knowledge of the destruction of' the goods, for in that event he might obtain compensation from the government.\\nNo notice appears to have been given in this case? nor does it appear when the plaintiffs acquired knowl edge of the facts. The question was not made in the court below. It' is probable, however, from the circumstances, that the consignor had knowledge of the destruction of the whiskey soon after it occurred. We do not, however, hold that notice or knowledge was essential.\\nUpon a reconsideration, therefore, of our former opinion, we have arrived at a different conclusion, and the affirmance will be set aside and the judgment reversed and a new trial granted.\"}"

tenn/11265780.json

@@ -0,0 +1 @@
+"{\"id\": \"11265780\", \"name\": \"Wm. Luster v. Wm. C. Maloney, Ex'r of Abijah Scruggs\", \"name_abbreviation\": \"Luster v. Maloney\", \"decision_date\": \"1873-09\", \"docket_number\": \"\", \"first_page\": \"374\", \"last_page\": \"376\", \"citations\": \"65 Tenn. 374\", \"volume\": \"65\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T21:14:42.210289+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Wm. Luster v. Wm. C. Maloney, Ex'r of Abijah Scruggs.\", \"head_matter\": \"Wm. Luster v. Wm. C. Maloney, Ex'r of Abijah Scruggs.\\n1. Confederate Notes. Their value to he measured hy TJ. 8. treasury notes. In a suit to recover the value of Confederate notes they are to be estimated at their value in United States treasury notes, not in gold.\\n2. Variance between declaration and proof. Where a declaration avers the payment of money to the defendant, to be applied in a particular way, and the proof shows the payment to have been made in Confederate treasury notes, it is doubtful whether this discrepancy does not constitute a variance fatal to the case, and the plaintiff is advised to amend his declaration in this respect.\\nNo record found.\", \"word_count\": \"503\", \"char_count\": \"2791\", \"text\": \"Freeman, J.,\\ndelivered the opinion of the court.\\nLnsier was indebted by note in the sum of $839.82 to \\u00a5m. Scruggs. This note was placed by William in the hands of Abijah Scruggs, as the means of indemnity against a contingent liability on a bond for the prosecution of a suit. While thus in Abijah's hands, Luster paid the amount to him in Confederate money.\\nThis court held, under the facts, as the payment, that the note was not discharged, and Wm. Scruggs had a decree against Luster for the amount of the note, which Luster assumes to have paid, and now brings this suit to recover the value of the Confeder rate money paid Abijah Scruggs, which was to have paid the note. A judgment was had in favor of plaintiff.\\nThe question presented for reversal is, that under the pleadings in- the case the proof of payment of Confederate money' to defendants' intestate was incompetent, as being a variance from the averments of the declaration.\\nOn this question there is more or less \\u00f3f difficulty, but we need not definitely decide the point, as, on looking at the charge of his Honor, the Circuit Judge, we find the case must be reversed on another ground, that is, that the plaintiff was entitled to recover the gold value of the Confederate .money at the time received, with interest. In this he erred, according to the rule established by this court, which \\u2014 whether the most accurate or not we need not now consider \\u2014 is one which we think proper to adhere to, and hold that the measure of value of Confederate money in such c\\u00e1se is their value in United States treasury notes or greenbacks.\\nIt is proper to say, that on remanding the case plaintiff is advised to amend his declaration by stating the fact that he sues for the value of Confederate money according to the facts of the case. As it would be very doubtful whether the averment of having paid so much money to a party, to be paid to another, which he failed to pay over as agreed, would be sustained by proof that he had received the amount in Confederate treasury notes, under the facts of this case.\\nLet the case be reversed, and remanded for a new trial.\"}"

tenn/11265934.json

@@ -0,0 +1 @@
+"{\"id\": \"11265934\", \"name\": \"C. B. Lewis v. Mary Oakley\", \"name_abbreviation\": \"Lewis v. Oakley\", \"decision_date\": \"1873-04\", \"docket_number\": \"\", \"first_page\": \"483\", \"last_page\": \"485\", \"citations\": \"10 Heisk. 483\", \"volume\": \"57\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T19:26:59.054145+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"C. B. Lewis v. Mary Oakley.\", \"head_matter\": \"C. B. Lewis v. Mary Oakley.\\nEjectment. Boundaries. Object called for. In ascertaining the boundaries of land, the object called for, controls course and distance.\\nSame. Where a deed was corrected by an ex parte proceeding in the Circuit Court, under the Code, sec. 2014 etseq., but the decree purporting to be made by consent, it will be presumed in the absence of proof to the contrary to have been properly and regularly made.\\nCode cited: sec. 2014 et seq. .\\nEROM CARROLL.\\nAppeal from Circuit Court, September Term, 1872. Hoy. J. D. Porter, Jr., J\\nHubbard & Townes, for complainant in error.\\nJ. W. Doherty and L. L. Hawkins, for defendant in error.\", \"word_count\": \"604\", \"char_count\": \"3427\", \"text\": \"Deaderick, J.,\\ndelivered the opinion of the court.\\nMary Oakley brought her action of ejectment against Lewis, in the Circuit Court of Carroll county, and obtained verdict and judgment in her favor for the land described in her declaration, and Lewis has appealed in error to this court.\\nThe question in the case is one of boundary, depending upon the location of the line dividing plaintiff's tract on the East, from defendant's on the West,' styled in the record a \\\"conditional line.\\\" Both parties agree that said line begins on a poplar. Oakley claims that it runs to a dogwood, while Lewis insists that it terminates on a grim. Each party introduces evidence to sustain his or her theory. The Circuit Judge charged the jury correctly as to the obligation the law imposed upon a plaintiff to make out his title to the land sued for.\\nThe jury after they had retired, returned into court and asked his Honor, the Circuit Judge, whether, \\\"if there was a variation of five degrees, they go to the dogwood?\\\" In reply, the Circuit Judge told them that whether the dogwood was the marked corner called for, was one of the questions of fact to be found by them, and if they find it is the corner called for, although it proves to be sixty-five instead forty-four poles from the end of the call, the object called for would control course and distance. This we think is a substantial answer to the question put by the jury, and instructs them that they may depart from the course and distance called for in the title papers to reach what the evidence in the case satisfies them is the true corner.\\nIt is also objected that the court improperly allowed the reading of a decree of the Circuit Court which purports to correct certain errors in the deed of Barnes to plaintiff below.\\nNo specific objection is taken. The Code, secs. 2014 to 2019, gives the Circuit Court jurisdiction to correct errors or mistakes in any deed of conveyances upon the petition of the person liable to injury by such error or mistake, and directs that notice of the application be given by advertisement in some newspaper published in the circuit, and by written notice to be served upon such persons as are interested in or may be affected by the relief sought, if the court deem it necessary, so that any person desiring to do so, upon giving security for costs, may contest the application.\\nThe decree in this case seems to have been made by consent, and the court having jurisdiction of the subject matter, upon petition ex parte, it must be presumed in the absence of proof to the contrary that the decree was properly and regularly made.\\nThe question of boundary is peculiarly appropriate for the determination of the jury, and the charge is not subject to just exception, and we affirm the judgment.\"}"

tenn/11266708.json

@@ -0,0 +1 @@
+"{\"id\": \"11266708\", \"name\": \"Cook vs. Smith\", \"name_abbreviation\": \"Cook v. Smith\", \"decision_date\": \"1829-01\", \"docket_number\": \"\", \"first_page\": \"148\", \"last_page\": \"149\", \"citations\": \"1 Yer. 148\", \"volume\": \"9\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T20:18:15.803114+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Cook vs. Smith.\", \"head_matter\": \"Cook vs. Smith.\\nNashville,\\nJanuary, 1829.\\nThe officer who commences the execution is bound to finish it, because an execution is an entire thing \\u2014 and when property enough is levied upon to satisfy the execution, the defendant is discharged, and the officer becomes liable for the debt.\\nIf the officer who made the levy procures another officer to sell, which latter fails to pay over the money to the plaintiff in the execution, the officer making the levy, is subject to judgment by motion, in favor of the plaintiff in the execution.\\nNotice to an officer of an intention to move against him for judgment, is a sufficient application to him for the money which he is bound to pay over.\", \"word_count\": \"514\", \"char_count\": \"2920\", \"text\": \"Opinion of the court delivered by\\nJudge Catron.\\nMo - tion against a constable under the act of 1823, ch. 21, before a justice, judgment given; appeal to circuit court, judgment affirmed; appeal in error to this court.\\nSmith had the execution in his hands, levied it, advertised the property for sale; before the day, he got Aider-son, another constable, to attend to the day of sale, sell the property &c. This Alderson did, taking the debt in Nashville Bank Notes \\u2014 this was contrary to the instructions of the plaintiff. Part of the amount was paid the plaintiff; fifty dollars were offered him of the Nashville notes which he refused, the hank having stopped payment.\\nThe first objection is: that Alderson collected the money and returned the execution satisfied; and that the action only extends to him who actually receives the money.\\nTo this it is answered: that he, who as an officer, commences the execution is hound to finish it, because an execution is an entire thing. The moment the levy is made, the property is in custodj- of the law; if enough is levied the defendant is forever discharged, and the officer levying is liable for the debt; this responsibility it is impossible for him to shift at pleasure to other hands. It matters not what agents or deputies he employs to aid him in executing the writ, he is the responsible man. (6 Ba. Ab. 161 \\u2014 1 I)al. R. 313.) A receipt by the agent is a receipt by himself \\u2014 the same as sheriff and deputy. 7 Com. D. 545.\\nIt is next insisted, that application should have been made for the money, and this proven, before a motion could be made.\\nThe plaintiff, Cook, applied to the agent for the money and got $>50; the balance was offered to be paid to him, if he would take Nashville bank paper, which was refused. This was sufficient. Alderson, by Smith's letter was the agent deputed to pay Cook.\\nWe furthermore think the statute remedial in its nature, enforcing common law rules, to coerce officers to pay over monies collected by them; and that no further application is necessary than notice that the motion will be made, being a substitute for an attachment at common law against the officer, who clearly had no good defence in the present instance. Judgment affirmed.\"}"

tenn/11268502.json

@@ -0,0 +1 @@
+"{\"id\": \"11268502\", \"name\": \"Hervey & New vs. Champion\", \"name_abbreviation\": \"Hervey v. Champion\", \"decision_date\": \"1851-04\", \"docket_number\": \"\", \"first_page\": \"569\", \"last_page\": \"571\", \"citations\": \"11 Hum. 569\", \"volume\": \"30\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-11T00:10:35.393858+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hervey & New vs. Champion.\", \"head_matter\": \"Hervey & New vs. Champion.\\nThe lien created by the levy of an attachment, has the same effect, both at law and equity as judgment and execution lions.\\nThis action of ejectment was submitted to a jury by Hum-phreys, Judge, presiding, in the circuit court, held for the county of Hardeman. Verdict and judgment for the plaintiff.\\nThe defendants appealed.\\nMiller and Wood, for the plaintiffs in error.\\nJ. R. Fentress and Rivers, for the defendant in error.\", \"word_count\": \"1004\", \"char_count\": \"5639\", \"text\": \"McKinney, J.,\\ndelivered the opinion of the court.\\nThis was an action of ejectment brought to recover a tract of land, situate in Hardeman county.\\nThe facts of the case, as agreed upon by the parties, are as follows : The parties, respectively, claim to have derived title to the premises described in the declaration, from Thomas Murphy, the former owner thereof. The lessor of the plaintiff, to establish his title, shows, that on the 29th of May, 1848, he instituted an action of debt against Murphy, in the circuit court of Hardeman, and during the pendency of that suit, to wit, on the 29th of January, 1849, he sued out an attachment against said Murphy, the defendant, pursuant to the provisions of the 1st section of the act of 1843, ch. 29, which attachment, on the morning of the day of its issuance, was levied on the tract of land in dispute. The attachment was issued by a justice of the peace of said county of Hardeman, returnable to said circuit court; and, upon being levied, was duly returned. At the February term, 1849, of said court, judgment was rendered in said suit in favor of the plaintiff for $600 52, and the land attached, not having been replevied, a writ of venditioni exponas was awarded by the court for the sale of the same, to satisfy said judgment. On the 19th of May, 1849, said land was accordingly sold, and the lessor of the plaintiff became the purchaser, and received a deed from the sheriff on the same day. The regularity of all these proceedings is conceded ; and upon the title thus derived, the lessor of the plaintiff relies for a recovery.\\nThe defendants below, now plaintiffs in error, relied upon a conveyance of said land by Murphy to James W. Hervey, under whom they claim, regularly executed prior to the issuance and levy of the attachment, to wit, on the 8th of January, 1849, which deed was proved on the 29th of January, 1849, the day on which the attachment was levied, and was filed for registration on the evening of the same day at four and a half o'clock, several hours after the levy of the attachment. Verdict and judgment were for the lessor of the plaintiff in the court below; and the cause is brought here by an appeal in error.\\nThe principal question discussed in the argument here, is, whether or not the levy of the attachment, which was prior to the registration of the deed under which the plaintiffs in error derive their title, created such a lien upon the land, as after the judgment of condemnation, and a sale under the writ of venditioni exponas, and a conveyance from the sheriff in pursuance of such sale, defeated the operation of the deed to Hervey, and invested the lessor of the plaintiff with the better title to the land.\\nUpon this question there can be no doubt. By the registry act of 1831, an unregistered deed is declared void as to creditors. Before registration, the creditors of the vendor may proceed against the property, in any mode permitted by law, as by fastening upon it the lien of a judgment, or of an execution, or of an attachment. The levy of an attachment fixes a special lien upon the property attached, which, if the property be not released therefrom by replevy, is continued and made effectual by the judgment of condemnation, and sale under the writ of venditioni exponas. This lien is no less operative to defeat an unregistered deed, than the lien of a judgment or execution; and it will hold wherever the latter would take effect. It is conceded that the lien of a judgment or execution would have rendered the deed in question a nullity, as against the creditor in whose favor the lien had attached ; but this effect is denied to the levy of an attachment, on the ground that the plaintiff in the attachment was not a judgment creditor at the time the same was levied, nor until after the deed from Murphy to Hervey was registered; and that it is only judgment creditors who are recognized by the act of 1831, The general rule is well settled, that registration is necessary only as to judgment creditors; andthatnone others can impeach any conveyance which the debtor may have made of his property, however fraudulent, except Iona fide purchasers. But to this rule the law has made an exception in the case of an attaching creditor; and the lien acquired by the attachment is regarded as of equal force with the lien of a judgment or execution. It was accordingly held by this court, in the case of Sharp vs. Ferrill and others, at the last term at Knoxville, that a creditor at large might, in equity, attach the property of his debtor, fraudulently conveyed; and impeach the conveyance in the same manner, and to the same extent as a judgment creditor.\\nThe principle is, that the lien of an attachment shall have the same effect, both at law and in equity, as judgment and execution liens. From which it necessarily results, that whatever right or interest in property of a debtor, whether of a legal or equitable nature, would be affected by the lien of a judgment or execution, will in like manner be affected and made subject by the lien of an attachment.\\nIn this View of the case, there is no error in the judgment of the circuit court, and it will be affirmed.\"}"

tenn/11286971.json

@@ -0,0 +1 @@
+"{\"id\": \"11286971\", \"name\": \"PAYNE v. SEBASTION\", \"name_abbreviation\": \"Payne v. Sebastion\", \"decision_date\": \"1813\", \"docket_number\": \"\", \"first_page\": \"311\", \"last_page\": \"311\", \"citations\": \"1 Cooke 408\", \"volume\": \"3\", \"reporter\": \"Tennessee Reports\", \"court\": \"Supreme Court of Errors and Appeals of Tennessee\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T23:37:39.289495+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"PAYNE v. SEBASTION.\", \"head_matter\": \"Supreme Court of Errors and Appeals. Nashville.\\n1813.\\nPAYNE v. SEBASTION.\\nWhere a case is brought up by certiorari, and the judgment affirmed, six per cent interest only is allowed. [See Code 3137.]\", \"word_count\": \"109\", \"char_count\": \"602\", \"text\": \"By the Court.\\nThis is a certiorari from the Cirouit to the County Court; and upon an affirmation of the judgment given in. the County Court twelve and a half per cent was allowed. This is error; inasmuch as in cases of certiorari where the judgment of the inferior court is affirmed six per cent only is to be allowed, and that from the time of rendering the judgment in the court below. Hay. Rev. 467.\"}"

tenn/11883362.json

@@ -0,0 +1 @@
+"{\"id\": \"11883362\", \"name\": \"Sedley ALLEY, Appellant, v. STATE of Tennessee, Appellee\", \"name_abbreviation\": \"Alley v. State\", \"decision_date\": \"1997-05-02\", \"docket_number\": \"\", \"first_page\": \"138\", \"last_page\": \"156\", \"citations\": \"958 S.W.2d 138\", \"volume\": \"958\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Tennessee Court of Criminal Appeals\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T22:40:10.708025+00:00\", \"provenance\": \"CAP\", \"judges\": \"HAYES and BARKER, JJ., concur.\", \"parties\": \"Sedley ALLEY, Appellant, v. STATE of Tennessee, Appellee.\", \"head_matter\": \"Sedley ALLEY, Appellant, v. STATE of Tennessee, Appellee.\\nCourt of Criminal Appeals of Tennessee, at Jackson.\\nMay 2, 1997.\\nPermission to Appeal Denied by Supreme Court Sept. 29,1997.\\nArthur E. Quinn, Timothy R. Holton, Memphis, for Appellant.\\nCharles W. Burson, Attorney General and Reporter, Amy L. Tarkington, Assistant Attorney General, Nashville, John W. Pierotti, District Attorney General, Henry P. Williams, John W. Campbell, Assistant District Attorneys General, Memphis, for Appel-lee.\", \"word_count\": \"10864\", \"char_count\": \"68430\", \"text\": \"OPINION\\nWADE, Judge.\\nThe petitioner, Sedley Alley, appeals from the trial court's denial of post-conviction relief and presents the following issues for our review:\\n(1) whether he was denied a fair trial due to the impartiality of the trial judge;\\n(2) whether a prospective juror was improperly dismissed;\\n(3) whether he was denied the effective assistance of counsel at trial and on direct appeal;\\n(4) whether the post-conviction court erroneously denied the petitioner expert services;\\n(5) whether the post-conviction court erroneously denied the petitioner the opportunity to make an offer of certain mitigating proof;\\n(6) whether the prosecutor committed reversible error during trial;\\n(7) whether the trial court committed reversible error during trial;\\n(8) whether the trial court properly instructed the jury at the guilt and penalty phases of the trial; and\\n(9) whether the Tennessee death penalty statute is unconstitutional.\\nWe affirm the judgment.\\nThe petitioner attacked the female victim while she was jogging near the Millington Naval Base, raped and killed her. At trial, the petitioner relied upon an insanity defense; through testimony, he attempted to prove that he was under the control of a separate personalty at the time of the offense.\\nThe petitioner was convicted of premeditated first degree murder, kidnapping, and aggravated rape; at the conclusion of the penalty phase of the trial, he was sentenced to death on the murder conviction. The jury found two aggravating circumstances as grounds for this sentence: that the murder was especially heinous, atrocious, or cruel; and that the murder was committed during the kidnapping and rape. The trial court imposed consecutive forty-year terms for the two other offenses. The supreme court affirmed each of the convictions on direct appeal. State v. Alley, 776 S.W.2d 506 (Tenn.1989). Thereafter, the petitioner filed a petition for post-conviction relief, which was denied by the trial court. On appeal, this court reversed, ordered the recusal of the trial judge, and remanded the case for a new hearing. Alley v. State, 882 S.W.2d 810 (Tenn.Crim.App.1994). This court ruled that the trial court should have allowed the petitioner to make an offer of proof as to the expert testimony he intended to produce. Id. at 818. At the conclusion of the eviden-tiary hearing, the .replacement judge denied the petitioner post-conviction relief.\\nThe record of the post-conviction proceeding establishes that Deborah Richardson, a Mental Health Program Specialist with Middle Tennessee 'Mental Health Institute, assisted with the assimilation of the petitioner's records during his four-month evaluation pe riod. The evaluation team included Ms. Richardson, Dr. Marshall, Becky Smith, Julie Maddox, Dr. Samuel Craddock, Dr. Zillur Athar, and two nurses. Ms. Richardson testified that birth records are not normally obtained for mental health examinations unless there is something about the patient's current functioning which would indicate congenital organic impairment; in her opinion, nothing about the petitioner's condition suggested a review of his birth records before his trial. When asked by the team of his medical background, the petitioner failed to mention anything of consequence. At the evidentiary hearing, Ms. Richardson testified that she did review records indicating that the petitioner's mother suffered from edema during pregnancy. The petitioner's Apgar scores, which measure the infant's responsiveness after birth, declined over time; she also learned that the petitioner was born with a collapsed lung and spina bifida (a hole in the spinal cord). EEGs and CAT scans revealed nothing. Ms. Richardson confirmed that none of these conditions were explored by the evaluation team before the trial.\\nIt was established that the petitioner also suffered from congenital kidney problems and an abnormal external genitalia. The petitioner had undergone several urethral strictures during his childhood, which entailed inserting a rod-like instrument into the urinary tract. He also had urethral surgery at age fifteen and suffered hemorrhaging of the penis shortly after the operation. The petitioner also had a history of febrile seizures before his surgery and had one after-wards. One of the reports pertaining to his urinary tract problem mentioned the term \\\"neurosis,\\\" but this was not further investigated by the team. The petitioner also suffered a head injury during a diving accident; the team took this into account during their evaluation. At the evidentiary hearing, Ms. Richardson acknowledged that the team did not consult a urologist or a geneticist with regard to any of these problems. She did testify that the team could find no connection between these physical problems and the alleged multiple personality disorder and concluded there was no need to research the problems any further. Ms. Richardson asserted that the team took extraordinary measures with the petitioner because of the nature of the alleged symptoms. She confirmed that records were also obtained subsequent to the trial indicating the petitioner was admitted to a hospital in Ohio for similar urinary tract problems; that was not investigated further.\\nThe petitioner was diagnosed by the team as having a borderline personality disorder and continuous mixed substance abuse; he was classified as a malingerer. Ms. Richardson testified that the new medical records she had seen would not have changed her diagnosis of the petitioner. She stated that everything was consistent with substance abuse except for the borderline personality disorder symptoms. While acknowledging that the petitioner complained about nightmares and other personalities named \\\"Billy\\\" and \\\"Death,\\\" and appeared nervous during evaluation meetings, Ms. Richardson testified that the petitioner acted normally around the Institute's general population and never showed any signs of behavioral changes. The team also monitored his sleeping and never observed signs of the alleged nightmares. She claimed that during the evaluation meetings, the petitioner would respond to certain cues the doctors would offer that were indicative of malingering.\\nMs. Richardson recalled that the petitioner's trial attorneys traveled to the Institute to check on his status, which was rare for attorneys to do. In her view, the attorneys showed more interest than in any other case she could recall. She testified that the attorneys provided her team all of their records of medical history and the team, in turn, provided the trial attorneys with all of the findings they had made. She confirmed that everyone at the Institute testified at the competency hearing that the petitioner was able to stand trial.\\nDr. Samuel Craddock, a clinical psychologist, also testified that the trial attorneys had visited him on about six occasions to discuss the petitioner's mental status; he described them as very thorough in their work. Dr. Craddock related that he had spent more time on this case than in any of the many others in which he had been involved; in his opinion, the trial attorneys could not have done anything differently to change his diagnosis of the petitioner. Dr. Craddock testified that the evaluation team considered the possibility of a multiple personality syndrome but concluded that the petitioner was not so afflicted.\\nDr. Craddock also testified it was not customary to review birth records when attempting to determine either competency or sanity issues. Instead, the team looked for traumatic events in the petitioner's life that might have affected his mental status at the time of the offense. It was his opinion that neither the urethral surgery nor the diving injury would have had an effect on the diagnosis. Dr. Craddock explained that during interviews, the petitioner never described these events as being traumatic. He claimed that a medical report indicating that the petitioner suffered from a neurosis might not be legitimate because there was no other information pertaining to that diagnosis. It was his view that the dilation of the urinary tract was not necessarily traumatic for the petitioner, even though it was probably painful. He did conclude that the hemorrhaging that occurred after surgery could have qualified as trauma.\\nDr. Craddock described the petitioner as appearing more impaired during the meetings with the team than during his association vrith other patients in the Institute. Dr. Craddock also mentioned that even though the petitioner complained of problems sleeping and about nightmares, no one ever observed anything out of the ordinary during round-the-clock observations. There was no evidence of any neurological problems. Dr. Craddock adhered to his belief that the personality disorder symptoms were a product of malingering.\\nDr. Zillur Athar, one of the psychiatrists who examined the petitioner, testified that a cluster of physical anomalies can point to a syndrome with a genetic origin; he conceded, however, the team did not consult a geneticist in this case. Dr. Athar testified that genetic disorders can affect behavior, but not in every case. It was his view that persons who suffer from multiple personality disorders usually have experienced some form of sexual abuse trauma early in life. Dr. Athar stated that hemorrhaging after surgery and dilation procedures on the urinary tract could be traumatic if the person was not fully informed of these as possible consequences. He had no opinion on whether the petitioner had been fully prepared and informed; it was standard medical practices to do so.\\nDr. Athar described neurosis as an outdated term which had indicated unusual anxiety; the term could suggest a temporary condition. He testified that a prior neurosis diagnosis of the petitioner would have been significant but could not say if the team had followed up on any such information. It was his view that the extent and location of brain hemorrhaging would have to be known for a determination of whether it had any bearing upon his mental evaluation. Dr. Athar could not recall anyone asking whether the killing of the victim, by penetrating the victim's vagina some twenty inches with a tree branch, bore any similarity to the petitioner's childhood surgery.\\nDr. Athar testified that multiple personality develops from childhood to early teens. He treated the petitioner weekly during his term of observation at the Institute. He claimed that the team obtained as much information as they needed for a satisfactory evaluation. Dr. Athar testified that the new information he had been shown at the hearing, including the urologist's diagnosis of neurosis, did not change his belief that the petitioner was sane. He held to his opinion that the petitioner was malingering. Dr. At-har testified that he had no basis to conclude that the petitioner had been sexually abused as a child.\\nDr. Athar acknowledged that before trial, he had met with the defense attorneys on many occasions. He also claimed that he had invested more time in this case than on any other dining his tenure at the Institute; generally, patients usually do not spend as much time under evaluation or treatment as did the petitioner. Dr. Athar also believed that the petitioner acted differently in the meetings with the evaluation team than in the unit; he described the petitioner as \\\"quite normal\\\" when interacting with the other patients but complaining excessively in the meetings with the team. He testified that there was nothing the petitioner's trial attorneys could have said or done that would have changed the results of his evaluation. Dr. Athar testified that he did not see symptoms of mental illness that would warrant a genetic investigation.\\nDr. Lynne Donna Zager, a psychologist with the Midtown Mental Health Center, performed a preliminary evaluation of the petitioner before his transfer to the Institute. She could not recall any indication that the petitioner received treatment as a youth for any mental disorder. She did acknowledge that a prior diagnosis of neurosis would be something of interest depending on the context in which the term was used.\\nDr. Zager recalled the petitioner describing his urology operation as a traumatic experience; the team took this experience into consideration during the evaluation. The team interviewed the petitioner and his family and made an extensive inquiry of his past. Dr. Zager conceded that genetic defects would possibly affect behavior; at the time of the evaluation, however, the team deemed as unnecessary any investigation of genetic problems. She acknowledged, however, a similarity between the petitioner's surgical procedure and the manner in which the offense was committed; the team took that into consideration in making their evaluation.\\nDr. Zager testified that she had spent more time on this case than any other in which she had participated. The purposes of her evaluation were to determine the competency of the petitioner to stand trial and his mental condition at the time of the offense; she made no preparations to testify about possible mitigating circumstances in the commission of the crime. Dr. Zager also complimented the efforts of petitioner's trial attorneys in the evaluation. She acknowledged that the team considered and then ruled out a diagnosis of multiple personality disorder. She concurred in the finding that the petitioner had substance abuse problems and a borderline personality. She also felt there was information to suggest the petitioner was malingering; that was the basis for his transfer to the Institute.\\nDr. Allen Overton Battle, who was hired by the defense attorneys to evaluate the petitioner, conducted hypnosis on the petitioner in an effort to discover any suppressed recollections. The defense attorneys recorded every session on videotape. No medication was administered during the sessions. He was also aware that sodium amytal (\\\"truth serum\\\") had been provided to the petitioner during several of his sessions with Dr. Larry Southard in Nashville. Dr. Battle testified that the petitioner's trial attorneys had provided him with a great deal of information in an effort to assist in his defense.\\nDr. Battle concluded that the petitioner did, in fact, suffer from multiple personality, but could not state that the petitioner was legally insane at the time of the offense. He testified that he would have liked more tests on the petitioner in an effort to determine his mental state; a taped confession by the petitioner, which was never provided, might have been helpful. The records pertaining to the dilation of the urethra would have been especially helpful because of its possible traumatic effect; a disassoeiation with the experience might have ultimately led to multiple personalities. Dr. Battle, who was convinced there was no malingering, hypothesized that the alter ego created in the petitioner was a female who could not suffer from abnormal male genitalia and the corrective surgical procedures; the female killed the victim and left the host personality to deal with the crime much as the host personality left the female to deal with the pain of the dilations. Although Dr. Battle testified at trial about how the petitioner's disorder might have formed, he was never asked about his multiple-personality hypothesis of the cause of the crime. He testified that the petitioner's trial attorneys failed to ask him to testify about any possible mitigating circumstances.\\nDr. Battle did assert that the defense attorneys did an excellent job at trial; in his forty years of experience he could not recall any other instances in which attorneys performed as capably. Most of the information he received on the petitioner's history came from the efforts of the trial attorneys, even the reports on his urethra surgery; Dr. Battle testified that his trial testimony regarding the multiple personality disorder was critical for the defense. He claimed that he was never asked to testify on the sanity issue because there were other professionals available for that; he perceived his duty as to investigate the multiple personality disorder only.\\nDr. Battle conceded that, because he saw the petitioner for only two hours at a time, the doctors and employees at the Institute were in a better position to determine whether the petitioner was malingering. He testified that it was \\\"totally impossible\\\" for him to make an informed evaluation concerning malingering or insanity. While Dr. Battle was not called upon to testify specifically on possible mitigating circumstances, he did acknowledge conveying to the jury during the guilt phase of the trial the pain the petitioner experienced during his childhood. It was his view that the birth records of the petitioner would not have been helpful in his evaluation. In response to a question by the trial judge, Dr. Battle testified that, in his opinion, none of the petitioner's personalities could be considered legally insane.\\nMark Ward, the petitioner's counsel on the direct appeal of the conviction, is involved in all death penalty appeals in the Shelby County Public Defender's Office. Mr. Ward testified that he takes control of the case after the filing of the notice of appeal. In response to a letter from the petitioner asking why he raised the various issues on appeal, he informed the petitioner he raised what he thought appropriate based upon his experience. He included every possible meritorious issue in his appellate brief, confirming that he had an adequate record on appeal. Mr. Ward also testified that he would have filed a petition to rehear had the supreme court's opinion misstated the testimony of a witness, especially that of Dr. Marshall. See Alley, 776 S.W.2d at 506, 510. He recalled no such misstatements in the opinion.\\nThe petitioner's trial attorneys asked Dr. Wyatt Lee Nichols, a clinical psychologist, to conduct evaluations of the petitioner for both competency to stand trial and sanity at the time of the offense. When the petitioner claimed that he could not remember anything about the crime, Dr. Nichols informed defense counsel he could not make an adequate evaluation, made a reference to Dr. Battle, and did not participate further. Because competency and sanity had to be evaluated, Dr. Nichols did not consider mitigating circumstances. At the evidentiary hearing, Dr. Nichols testified that had he explored the mitigation aspects, he would have reviewed the petitioner's past experiences affecting self-esteem and confidence; he also would have considered other characteristics relating to the nature of this particular crime, such as sexual prowess and sexual performance. He conceded that any knowledge about the petitioner's .urinary tract dilations might have been helpful.\\nAttorney Robert Jones represented the petitioner at trial. In the legal profession for eighteen years, he has been with the Public Defender's Office for seventeen years and on their capital defense team for fifteen of those years. Ed Thompson, another Public Defender, was also assigned to represent the petitioner. Mr. Jones had the primary responsibility of investigation and preparation; Mr. Thompson acted as lead counsel at trial. Chris Glen, a social worker who had worked on approximately 700 murder cases, and Ralph Nally assisted in the investigation. The defense team talked with the petitioner's wife, sister, arid mother, who informed them of all of the significant medical problems in the petitioner's life, including the urethra surgery, the head injury, and his childhood behavior. None of the defense team had any experience in the area of multiple personalities. The decision to use the insanity defense was a group decision among the attorneys, the petitioner, the physicians, and other experts. On advice of the physicians, the trial attorneys made no suggestion to the petitioner that he was afflicted with multiple personalities.\\nMr. Jones testified that he did not recall seeing the trial judge's Rule 12 report in this ease or being asked for input for the report from the trial judge. Mr. Jones testified that he disagreed with the trial judge's assessment that no mitigating evidence had been presented; he concluded that the petitioner's mental condition and the petitioner's level of intoxication at the time of the crime should have been included in the report.\\nThe trial attorneys were first apprised of a possible mental defect when the petitioner complained of memory losses. After contacting Dr. Nichols to evaluate the petitioner for competency to stand trial and sanity at the time of the offense, they were referred to Dr. Battle for hypnosis evaluations due to the petitioner's inability to recall the events of the crime.\\nDr. Battle, who had determined competency and sanity questions in prior cases, requested a transfer of the petitioner to Nashville for further evaluations. At the Institute, the petitioner was examined by an evaluation team, headed by Dr. Marshall, and a treatment team, headed by Dr. Athar. The petitioner initially spent thirty days in the Institute; he returned later for further evaluations.\\nWhen it was determined that multiple personalities might be an issue, the trial attorneys sought the counsel of other experts in the area; because Dr. Battle was a leading expert in this field and was familiar with criminal cases, it was decided to utilize his participation in the case. Mr. Jones also testified that he maintained regular contact with those participating in the evaluations and actually sat in on several of the hypnosis and sodium amytal sessions performed by Dr. Battle and Dr. Marshall.\\nBoth Drs. Battle and Marshall supported the theory of multiple personality developing from the urinary tract problems and medical procedures. But Dr. Battle began to vacillate just before trial as to whether \\\"Power\\\" or \\\"Death\\\" was in control at the time of the offense. After talking with Dr. Battle, Attorney Jones decided that Dr. Battle's testimony lent support to the defense theory; he claimed that he did not learn otherwise until trial when Dr. Battle provided damaging testimony to the petitioner. Mr. Jones acknowledged his disappointment and asserted that he would never utilize Dr. Battle as an expert in the future. He testified that Dr. Marshall did, however, support the insanity defense at trial. Both had testified to the petitioner's multiple personalities during the competency hearings before trial.\\nPrior to trial, Attorney Jones filed motions to continue the case; when the county public defender made a rare appearance to support the motions and ask for permission to withdraw, the trial judge delayed jury selection for three days. Mr. Jones asserted that he did not waive any meritorious issues during the trial of the case. Although this trial was scheduled within days after Mr. Jones had finished another trial, he conceded at the evidentiary hearing that he was prepared to proceed, having worked on the case for well over a year.\\nAttorney Jones claimed that the trial was tense at times; for example, the trial judge threatened him with contempt and, at one point, warned him of his constitutional rights. He claimed that the judge questioned the credibility of the defense attorneys. Mr. Jones testified that he was not aware the parents of the victim had sent a letter to the trial judge about the case and questioned the propriety of the trial judge's contact with the victim's family; while the prosecution had been provided a copy of the letter, the defense had not. Mr. Jones conceded that he had not filed a motion for recusal. Upon further questioning, Attorney Jones acknowledged that the state displayed for the jury a photograph of the victim during the entire first day of the trial; no objection was lodged until the end of the day. He explained that he delayed his objection so as not to alienate the jury.\\nMr. Jones testified that all records of the petitioner's prior medical problems had been passed on to the experts. Mr. Jones, who talked with the petitioner's family, had no recollection of any medical problems associated with his birth. He stated that none of the doctors who examined the petitioner ever indicated that there was any reason to obtain the birth records; he knew nothing of a neurosis diagnosis. Mr. Jones acknowledged his awareness of the petitioner's urinary tract surgery and the head injury and provided the experts with that information. A neurological workup on the head injury revealed no organic problems.\\nWhile Mr. Jones conceded that he did not show the jury the actual instrument that was used in the urethra dilations of the petitioner, he did attempt to \\\"paint the picture\\\" of these procedures to the jury; he said that Dr. Battle described the pain associated with the surgery and how this event could culminate in a disassoeiation which, in his opinion, caused the multiple personality disorder.\\nMr. Jones did not ask Dr. Zager to testify in the penalty phase. The defense decided that some of their experts were not \\\"open-minded\\\" and would not, therefore, be helpful in the penalty phase. In their assessment, the mitigation evidence introduced during the guilt phase was credible and compelling. For example, Dr. Battle testified during the trial about the petitioner's behavior as a child, such as rocking back and forth, banging his own head against the wall, imagining conversations, experiencing headaches and nightmares, not wanting to play with other children, imagining a playmate \\\"Billie,\\\" and suffering mental abuse from his father. Because the defense team thought that the jury might find the petitioner not guilty by reason of insanity, they introduced the bulk of their proof during the guilt phase of the trial. This strategy, according to Attorney Jones, was to establish grounds of mitigation at the same time the jury considered the insanity testimony. Mr. Jones testified that the jury thus learned of the mitigating circumstances during the guilt stage of the trial.\\nMr. Jones explained that the defense team chose not to use a psychologist during the sentencing phase because a more extensive cross-examination might have been damaging. Mr. Jones testified that his requests for experts had been approved in the trial court and that funds for the employment of a geneticist would have been granted.\\nMr. Jones testified that the defense filed notice of insanity defense over a year before trial; the state refused to offer any plea agreement. Several pretrial motions were filed, including a motion to suppress the petitioner's statement; there were lengthy hearings. Mr. Jones stated that he was in continual contact and discussed the insanity defense with the petitioner throughout the course of the trial. Mr. Jones also acknowledged his responsibility for preparing the record for Mr. Ward's representation on appeal.\\nMs. Glen, who helped prepare all of the background information on the petitioner, also assisted in the jury selection and witness coordination in the sentencing phase. Mr. Nally did most of the investigation relating to the crime and also performed a background check. Edward Thompson, who also represented the petitioner at trial, has practiced criminal law for thirty-two years and at one time served as the Shelby County Public Defender. The trial of this case was to start the Monday following the completion of another trial he and Mr. Jones just completed on Saturday. Mr. Thompson stated that they were physically and mentally exhausted from the previous trial, and sought permission to withdraw rather than begin the trial on time. The trial judge granted them a three-day extension.\\nAt the time of trial, Mr. Thompson also did not know of the letter the victim's family wrote the judge. He did recall seeing the victim's father walk back toward the judge's room and observed the judge's wife sit with the victim's family during trial.\\nMr. Thompson agreed that the jury heard significant mitigating circumstances during the guilt phase of the trial. He described the trial judge's failure to include that in his Rule 12 report as a mistake. Mr. Thompson confirmed that Dr. Battle understood he was to evaluate the competency and sanity of the petitioner. Dr. Battle was the only person they knew who had any experience in the field of multiple personalities and was willing to testify on their behalf. Though Dr. Battle did not testify as they had anticipated, he did provide the defense with supportive testimony.\\nHe also confirmed that the defense team relied upon the family to inform them about any defects or illnesses the petitioner may have had; no one mentioned any problems associated with his birth. Mr. Thompson did state that he would have asked for medical records and reviewed them had this been known.\\nMr. Thompson testified that the petitioner appeared to be very lucid in providing details of the crime to the police; the tape of the confession confirmed this. No one could testify that petitioner was intoxicated at the time. Thus, the defense team chose not to use experts during the suppression hearing.\\nANALYSIS\\nIt has long been established that the trial court's findings of fact and conclusions of law in post-conviction suits are afforded the weight of a jury verdict. See, e.g., Caruthers v. State, 814 S.W.2d 64, 67 (Tenn.Crim.App.1991). \\\"In post-conviction relief proceedings the petitioner has the burden of proving the allegations in his petition by a preponderance of the evidence.\\\" McBee v. State, 655 S.W.2d 191, 195 (Tenn.Crim.App.1983). Furthermore, the trial court's findings of fact and conclusions of law are conclusive on appeal unless the appellate court finds that the evidence preponderates against the findings. Butler v. State, 789 S.W.2d 898, 899 (Tenn.1990).\\nI\\nThe petitioner first contends that he was denied his constitutional right to a fair trial due to specific instances of conduct on the part of the trial judge, who also sat in the original post-conviction proceeding. The petitioner claims the judge was neither neutral nor detached, \\\"had developed a personal bias against the petitioner,\\\" and \\\"developed] strong feelings for the implementation of capital punishment.\\\"\\nThe alleged inappropriate conduct occurring during the initial post-conviction proceeding involves comments made by the judge in response to a motion for stay of execution, a motion for appointment of counsel, and the filing of the post-conviction petition itself. The petitioner contends that even though these comments occurred during the post-conviction proceeding, they demonstrate a personal bias that originated in the trial of the case. These complaints of misconduct were reviewed by this court during the initial post-conviction appeal. See Alley v. State, 882 S.W.2d 810, 818-19 (Tenn.Crim.App.1994). After outlining the law governing re-cusal, this court remanded for a hearing before a different judge:\\nWhile we could remand this case to enable the trial judge to evaluate the potential appearance of partiality in this case, we deem that procedure inefficient. We have carefully read the record and considered the points raised. We are mindful of the hindrances encountered by trial judges whose trial dockets often become saturated with post-trial petitions, many of which require days of complicated testimony. We are not callous to their appropriate efforts to dispense justice more swiftly. Moreover, we do not question in the least the judge's intentions in this cause or his determination, from a subjective, personal viewpoint that recusal was not necessary. Nonetheless, applying the objective standard required by our Code of Judicial Conduct, we deem recusal appropriate in this case in order to avoid the public appearance of partiality.\\nId. at 823.\\nRelief under the Post-Conviction Procedure Act may be granted only when there has been an abridgment of any constitutional right during the course of the guilt or sentencing phase of the trial. Tenn.Code Ann. \\u00a7 40-30-105 (repealed 1995). Because the alleged instances of misconduct occurred during the hearing on the post-conviction petition, the petitioner does not qualify for relief. While the petitioner suggests that comments made by the judge during the initial post-conviction hearing indicate a personal bias originating during his trial, the petitioner has failed to point to anything in the record that would warrant post-conviction relief. This court's order of recusal and the remand for a hearing before a different judge resolved any possible issue.\\nThe petitioner also contends that he was prejudiced by the biased conduct of the trial judge during his trial. The petitioner makes several claims of misconduct: (1) the trial judge misstated information in the Rule 12 report; (2) the trial judge improperly expedited the psychological review of the petitioner; and (3) the trial judge and his wife had inappropriate contact with the victim's family. In response, the state asserts that the petitioner waived these claims by their omission as grounds for relief on the direct appeal. Tenn.Code Ann. \\u00a7 40-30-112 (repealed 1995). See also House v. State, 911 S.W.2d 705, 713-14 (Tenn.1995), cert. denied, \\u2014 U.S. -, 116 S.Ct. 1685, 134 L.Ed.2d 787 (1996). We must agree. Except the allegations of impropriety concerning a letter from the victim's family, all such grounds have been waived because they could have been presented for review during the direct appeal process.\\nIn any event, the claims have no merit. The petitioner claims the trial judge incorrectly reported under Rule 12 that there was no mitigating evidence before the jury, that the petitioner's mental or physical condition did not call for special consideration, and that there was no evidence the petitioner was under the influence of drugs or alcohol at the time of the offense. The petitioner also claims his defense attorneys were prevented from reviewing the report before its submission to the supreme court. This complaint, however, is not of constitutional dimensions. The rules of the supreme court have the force of law by virtue of legislative enactment. Tenn.Code Aim. \\u00a7 16-3-404. This rule was enacted to assist our supreme court in its statutory duty to review a death penalty sentence in first degree murder cases. Malone v. State, 707 S.W.2d 541, 544 (Tenn.Crim.App.1985). See also State v. Brimmer, 876 S.W.2d 75, 87 (Tenn.1994) (\\\"The simple answer to this complaint is that use of the trial judge's Rule 12 report by this Court is only one facet of the Court's appellate review.\\\"); State v. Cazes, 875 S.W.2d 253, 270 (Tenn.1994) (\\\"a Rule 12 report contains far less information than the entire record, which we have thoroughly reviewed in this case\\\").\\nThe petitioner contends that the judge \\\"imposed pressure upon the staff of Middle Tennessee Health Institute to quickly come to a determination as to the status of Mr. Alley.\\\" The record, however, does not substantiate that claim. The petitioner was evaluated by numerous experts in Memphis and Nashville and was institutionalized under observation for a period of about four months. Although there is some indication certain doctors would have liked more time to evaluate the petitioner, the experts from the Institute testified during the post-conviction hearing that the additional information they were shown during the hearing would not have changed their diagnosis.\\nNext, the petitioner contends that certain contact between the trial judge, his wife, and the victim's family indicates bias against the petitioner. This claim is based upon a letter sent to the trial judge by the victim's family asking for expedited proceedings, the fact that the trial judge's wife sat next to the victim's family during trial, and the implication that the victim's father walked towards the trial judge's chambers during recess of the trial. The petitioner did not discover evidence of this letter until the hearing below. The better practice is to share any correspondence pertaining to a case with both parties, defense counsel and the state, to avoid any appearance of impropriety. See Code of Judicial Conduct, Canon 3(A)(4), Tenn. Sup.Ct. R. 10. At the conclusion of the remanded evidentiary hearing, the replacement judge declared that no prej udice resulted from the letter. The record supports the conclusion that the trial judge did not respond to the family or make any special concessions on their behalf.\\nThe fact that two weeks after receiving this letter, the trial judge notified the defense attorney that the case had been set does not prove impartiality. Moreover, while it is far better for the trial judge and his family to avoid even the appearance of impropriety, there is simply inadequate proof in this record to qualify as misconduct on the part of the trial judge during the trial. Jurors did not likely know the trial judge's wife; certainly, nothing in this record suggests otherwise. There was testimony that the break or coffee room was near the judge's chambers; there was no proof that the trial judge talked with the father of the victim during the trial. If there was improper contact, the petitioner has been unable to prove it.\\nThe petitioner has failed to show that the evidence in the post-conviction proceeding preponderates against the findings of the trial court. See McBee, 655 S.W.2d at 195. Accordingly, for the reasons stated above, this issue is without merit.\\nII\\nThe petitioner next contends the trial court improperly excused a prospective juror for cause and refused to allow defense counsel an opportunity at rehabilitation. Our supreme court resolved this issue in favor of the state on direct appeal. Alley, 776 S.W.2d at 517-18. Thus, the ground has been previously determined. Tenn.Code Ann. \\u00a7 40-30-112(a) (repealed 1995). See also House, 911 S.W.2d at 710-11.\\nIII\\nThe trial court found that the defense attorneys were effective in their representation of the petitioner. In order for the petitioner to be granted relief on grounds of ineffective counsel, he must establish that the advice given or the services rendered were not within the range of competence demanded of attorneys in criminal eases and that, but for his counsel's deficient performance, the result of his trial would have likely been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975).\\nFurthermore, this court may not second-guess the tactical and strategic choices made by trial counsel unless those choices were uninformed because of inadequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn.1982). Trial counsel may not be deemed ineffective merely because a different procedure or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276 (Tenn.Crim.App.1980). The reviewing courts must indulge a strong presumption that the conduct of counsel falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. The burden is on the petitioner to prove his allegations by a preponderance of the evidence. McGee v. State, 739 S.W.2d 789 (Tenn.Crim.App.1987). The findings of fact made by the trial judge are conclusive unless the evidence preponderates against the judgment. Graves v. State, 512 S.W.2d 603 (Tenn.Crim.App.1973).\\nThe petitioner alleges numerous instances of ineffective counsel. First, he claims that his defense attorneys failed to present or offer proof of his mental or medical condition at the time he gave his statement to the police; because he relied on a defense of insanity, the petitioner contends that evidence on the issue was crucial to the case.\\nDeborah Richardson, a Mental Health Program Specialist, testified at the post-conviction hearing. She had reviewed the petitioner's statement in conjunction with witness accounts that he was not impaired at the time. Because the statement was logical, coherent, and progressed in a natural sequence, she concluded that the petitioner was not under the influence at the time.\\nFurthermore, Attorney Thompson testified that the audio-taped confession appeared quite lucid in its detail. Because no one could conclude that the petitioner was impaired, the attorneys decided not to call any experts during the suppression hearing. Thompson stated he and his co-counsel did not want to subject their experts to cross-examination and take the risk that the revelation of their insanity evidence might weaken the defense.\\nThe post-conviction court could not find that this tactic deprived the petitioner of a fair trial. We agree. The decision appears to have been informed and based upon adequate preparation. We cannot second-guess counsel in this regard. See Hellard, 629 S.W.2d at 9.\\nThe petitioner also claims his defense attorneys did not properly investigate his medical history, prepare their experts' testimony, or present the insanity defense. The petitioner complains that certain of his medical reports, including the birth records pertaining to his urinary tract dysfunctions, were not obtained or shown to the experts before trial; he argues that these records were essential to the presentation of his defense. The petitioner also contends that his counsel was ineffective by failing to introduce any significant mitigating evidence during the sentencing phase of the trial. He insists that a miscommunication between Dr. Battle and trial counsel resulted in an inadequate psychological evaluation and undermined his insanity defense. The petitioner also complains that his counsel on appeal was ineffective by failing to file a motion to reconsider when the supreme court opinion misstated the testimony of Dr. Marshall.\\nDuring the course of the evidentiary hearing, the petitioner introduced medical reports pertaining to his birth and his urinary tract condition. Although the defense attorneys learned from the petitioner and his family of the urinary tract problems and the diving injury to his head, they were unaware of other medical complications during his birth. Every expert who had evaluated the petitioner before the trial and who testified later at the evidentiary hearing, examined the medical records and the previously unknown neurosis diagnosis and maintained that their opinions on the petitioner's condition had not changed.\\nDr. Zager was consulted to determine first whether the petitioner was competent to stand trial and secondly whether he was insane at the time of the offense. She concluded that the petitioner was competent but recommended transferring him to the Institute for more evaluation. Dr. Zager was not called to testify to mitigating circumstances. During the post-conviction hearing, she testified that she suspected possible theories to explain the petitioner's acts and acknowledged that she suspected malingering. After recommending the transfer of the petitioner to the Institute for further evaluation, however, the responsibility for the evaluation shifted to the doctors there. Dr. Zager considered the petitioner's urinary tract deformity in her evaluation. She testified that she had more contact with his defense attorneys than any others involved in the defense of her prior patients.\\nThe record demonstrates that defense counsel spent a great deal of time in the selection and preparation of trial. The petitioner was examined by several in the medical profession. Once it was decided to pursue the insanity defense under the multiple personality theory, the attorneys called experts throughout the country before determining that Dr. Battle was one of the leading persons in the field. They also relied upon the evaluation and opinion of Dr. Marshall. Both concluded therefrom that the petitioner suffered from multiple personalities. As the record indicates, Dr. Battle did not definitively testify during trial that an alter personality was in control at the time of the offense. Mr. Jones testified he was aware Dr. Battle was wavering just before trial. It was not until Dr. Battle was on the stand that Mr. Jones realized Dr. Battle was not testifying as to what he had indicated. Nonetheless, both attorneys indicated that Dr. Battle still provided the defense with valuable mitigation evidence. His trial testimony did not discount the defense theory that an alter personality was in control at the time of the offense. The testimony of Dr. Marshall fully supported the defense.\\nThere was some confusion regarding Dr. Battle's function. Attorney Jones testified that he had used Dr. Battle as an expert in the past and had always instructed him to determine both the competency issue and sanity issue. Dr. Battle testified that he was asked simply to determine whether or not the petitioner suffered from multiple personalities. The trial court accredited the version provided by Jones: \\\"Why subject the petitioner to five video sessions under hypnosis, three sodium amytal sessions and other examinations if it were not for the purpose to determine his state of mind on the night of July 12,1985?\\\"\\nDefense counsel had to rely upon the opinions of their experts. The physicians testifying for the defense were well respected in this field for their expertise. That one of the experts changed his opinion does not mean that counsel was ineffective. Stated simply, the proof in the record does not preponderate against the findings of the trial court.\\nNext, the petitioner contends that counsel was ineffective by failing to show the jury the device used on the petitioner during his urethra procedures. Dr. Battle, however, testified about the procedures. The defense attorneys feared that the jury would be offended by a comparison of the rod-like urethra instrument to the tree branch used to kill the victim. They believed that the detailed description by Dr. Battle as to the pain of the petitioner adequately made their point. That, in our view, was a reasonable strategy. Thus, counsel was not ineffective in this regard.\\nThe petitioner next asserts that the attorneys in this ease should have filed a petition to rehear upon learning that our supreme court misstated the testimony of Dr. Marshall in its opinion on direct appeal. In its opinion, the court remarked that the state's expert testimony was \\\"strong and impressive\\\" and concluded that the state proved the petitioner's sanity beyond a reasonable doubt. Alley, 776 S.W.2d at 511. The jury had accredited the expert witnesses for the state. The petitioner has faded to show either a misstatement of fact or how filing a petition to rehear would have changed the result of the direct appeal.\\nThe petitioner also makes a general claim that his defense attorneys were not fully prepared for trial. The petitioner relies upon the contents of his attorneys' motion for a continuance. While the trial judge granted only a three-day extension, each of the attorneys testified at the evidentiary hearing that they were fully prepared when the trial began. The post-conviction court accredited that testimony. The record supports that conclusion.\\nNext, the petitioner contends his trial counsel were ineffective because they failed to include in the record on appeal the transcript of the closing arguments during the guilt phase of the trial. Apparently, the prosecutor made references to victim impact evidence. Our supreme court concluded that the trial court erroneously allowed the state, over defense counsel's objection, to introduce the victim impact testimony of the victim's father.. The error was deemed harmless beyond a reasonable doubt. The petitioner now claims the opinion might have been different if the court had been aware of the specifics of the comments made during the initial closing argument. We do not agree. The decision was based upon the fact that none of the inappropriate argument occurred during the sentencing phase of the trial. As the post-conviction court noted, our supreme court's observations about final argument were premised upon Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). That case was subsequently overruled by Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Thus, the failure of the defense attorneys to include a transcript of the argument did not result in prejudice.\\nDuring the first day of the original trial, the state displayed a 20\\\" by 16\\\" photograph of the victim. The record indicates that defense counsel did not object until the end of that day. The objection was overruled. On the third day of trial, the trial court directed the state to substitute a smaller photo in its place. On direct appeal, the petitioner claimed it was error for the trial judge to have overruled the objection. Our supreme court, noting that the record failed to establish how the photo was displayed, held that the issue was without merit. The petitioner now claims counsel was ineffective by delaying its objection and failing to adequately raise the issue on appeal.\\nThe post-conviction court ruled that the petitioner \\\"failed to convince this Court that such display or the lack of an objection influenced the jury to arbitrarily assess guilt and the death penalty.\\\" The petitioner had the burden of showing how he had been prejudiced by his attorneys' delay in lodging an objection. He has failed to do so.\\nThe petitioner alludes to a number of other instances during trial wherein his defense counsel failed to object to questioning and argument of the prosecutor. More specifically, the petitioner complains that his attorneys failed to object to testimony about the background of the victim; failed to object to a leading question asked by the prosecutor; failed to assert the husband and wife privilege concerning a conversation between the petitioner and his wife which had taken place in the presence of police; failed to object to the conclusory testimony of a witness; failed to object to the prosecutor's argument that the jury should not have mercy; and failed to object to the improper conduct of the trial judge and his wife. The petitioner presents each of these claims in a single sentence and has failed to offer any supportive explanation for his position. It is our view that the post-conviction court correctly ruled that trial counsel was not ineffective with regard to any of these allegations.\\nFinally, the petitioner contends trial counsel was ineffective for having failed to present issues one, six, seven, eight, and nine of this opinion on direct appeal. Because we have determined there was no error, the petitioner would not be entitled to relief on this claim. Accordingly, this contention must fail.\\nIV\\nIn his next issue, the petitioner claims that the trial court in the post-eonvietion proceeding erroneously denied his motion for expenses for expert witnesses due to \\\"a number of complex medical and psychological issues including multiple personality disorder.\\\" Counsel argued that the expert services would assist in determining whether trial counsel was ineffective. The trial court denied the motion based upon the ruling in Teague v. State, 772 S.W.2d 915 (Tenn.Crim.App.1988). It ruled that additional experts were unnecessary for an informed determination on the effectiveness of the defense attorneys at trial.\\nIn Teague, the controlling law at the time of the hearing, this court held that Tennessee Supreme Court Rule 13(2)(B)(10) and Tenn. Code Ann. \\u00a7 40-14-207(b) (1995 Supp.), governing the provision of investigative and expert services in capital cases, applied only to the trial and not in the post-conviction context. Teague, 772 S.W.2d at 927. After expert services had been denied in this case, our supreme court overruled Teague in Owens v. State, 908 S.W.2d 923 (Tenn.1995). In Owens, the court held that Rule 13(2)(B)(10) and \\u00a7 40-14-207(b) did apply to post-conviction capital cases, but warned that its ruling \\\"should not be interpreted as a 'blank cheek' requiring trial courts to hold ex parte hearings and authorize funds in every case.\\\" Owens, 908 S.W.2d at 928. Strict compliance with the guidelines in Rule 13(2)(B)(10) is required.. Id. That is, the motion requesting experts must contain more than a \\\"bare allegation that support services are needed\\\" in order to ensure the protection of the petitioner's constitutional rights. Id. Moreover, the \\\"petitioner must [also] demonstrate by specific factual proof that the services of an expert or an investigator are necessary to establish a ground for post-conviction relief, and that the petitioner is unable to establish that ground for post-conviction relief by other available evidence.\\\" Id.\\nBy the application of the Owens guidelines, it is apparent that the written motion of the petitioner fell below the requirements of Rule 13(2)(B)(10). The pleadings do not demonstrate that threshold of need. In our view, the post-conviction court correctly determined that the record is adequate, as indicated by the preceding section of this opinion, to review the claims of ineffective assistance of counsel. This issue, therefore, is without merit. See Edward Leroy Harris v. State, 947 S.W.2d 156 (Tenn.Crim.App., at Knoxville, 1996), app. denied, (Tenn., Feb. 3, 1997); Edward Jerome Harbison v. State, No. 03C01-9204-CR-00125, 1996 WL 266114 (Tenn.Crim.App., at Knoxville, May 20, 1996), app. denied, (Tenn., Nov. 12, 1996).\\nY\\nNext, the petitioner contends the trial court refused to allow him to make an offer of proof through Dr. Lynn Zager. The petitioner claims this prevented him' from supporting with evidence his contention that his defense attorneys failed to properly prepare his insanity defense. During the hearing below, Dr. Zager was asked whether or not she developed an opinion regarding a connection between the urethra procedures the petitioner underwent during adolescence and the circumstances surrounding the murder, particularly the use of the tree branch to impale the victim. She testified that she formed a personal opinion about this connection, but was never directly asked about this during trial. She also testified that she had never before been asked to investigate a case in Shelby County \\\"with an eye towards obtaining information which would be mitigation.\\\" The reason for this, she explained, is because her facility, the Midtown Mental Health Center, primarily performs evaluations pursuant to court order and is not ordinarily asked to develop the possible mitigating circumstances of a crime.\\nDr. Zager's team first evaluated the petitioner for competency to stand trial; its second responsibility was to determine his sanity at the time of the offense. They concluded that the petitioner was competent but recommended a transfer to the Institute in Nashville for further evaluations. During the post-conviction proceeding, counsel for the petitioner asked Dr. Zager if she considered any of the information about the petitioner useful in terms of mitigation. She could not answer that question because that was not her focus during the evaluations. She confirmed that prior to the trial she had never performed an evaluation to determine mitigating circumstances. The trial court then allowed counsel to ask if she would be able to form an opinion now about the petitioner in terms of mitigation. Dr. Zager testified that she was not prepared to do so.\\nIn our view, the petitioner was not denied the opportunity to make an offer of proof. In fact, the post-conviction judge told petitioner's counsel they could make an offer of proof concerning any mitigating evidence she could supply. Dr. Zager was simply not prepared to do so.\\nVI\\nThe petitioner contends the prosecutors asked inappropriate questions to one of the witnesses during the guilt phase; engaged in an improper argument during the penalty phase; failed to provide the defense with exculpatory evidence; and failed to provide the defense with a copy of the letter the victim's family sent to the trial judge.\\nThe first of these complaints, whether the prosecutor erroneously asked a witness if the petitioner had been arrested in Michigan, knowing no such charges existed, was addressed by our supreme court on the direct appeal. The ground therefore qualifies as previously determined. Tenn.Code Ann. \\u00a7 40-30-112(a) (repealed 1995). See also House, 911 S.W.2d at 710-11. While the court found the conduct of the prosecutor to be reprehensible and unprofessional, it ruled that the error, in the context of the entire trial, was harmless. Alley, 776 S.W.2d at 519.\\nNext, the petitioner argues that the prosecutor diminished the jury's responsibility during its argument in the sentencing phase of the trial. The state contends that the petitioner waived this argument by failing to present the issue on direct appeal. We agree. See Tenn.Code Ann. \\u00a7 40-30-112(b) (repealed 1995). See also House, 911 S.W.2d at 713-14. During closing argument, the prosecutor responded to a defense argument for mercy: \\\"if [the victim] chooses to have mercy, that is her right. That is not your right; that is not my right. That is not the right of the State of Tennessee.\\\" The trial court properly informed the jury during in its charge that the jury could base its verdict upon sympathy for the petitioner. In our view, the state's argument was not erroneous.\\nThe petitioner also contends that the prosecutor improperly commented on the petitioner's right to counsel and his right to remain silent. The petitioner has failed, however, to refer to the record or cite any authority to support his claim. Thus, the issue has been waived. Rule 10, Rules of the Court of Criminal Appeals.\\nThe petitioner also contends that the prosecutor withheld evidence of Dr. Zager's theory of the crime. Specifically, the petitioner contends that Dr. Zager testified she discussed her theory with both the prosecution and the defense, but that defense counsel denied receiving the information. This contention is without merit. Because Dr. Zager was acting under a court order, she reported her findings to both sides. Attorney Jones merely testified that he did not remember receiving this information. In our view, this testimony does not mean that the state withheld exculpatory evidence not in the possession of the defense; the petitioner has merely shown some discrepancies in the recollections of witnesses. McBee v. State, 655 S.W.2d 191, 195 (Tenn.Crim.App. 1988).\\nFinally, the petitioner contends the prosecutor committed reversible error by failing to provide the defense with a copy of the letter the trial judge received from the victim's family. While the better practice would have been to provide the defense with a copy of the letter, we could not presume that the procedure prejudiced the rights of the petitioner to a fair trial. Similarly, the failure of the state to provide the defense with a copy of the letter, while it should have done so, appears to have been inadvertent and certainly did not affect the results of the trial.\\nVII\\nThe petitioner contends that the trial judge was guilty of misconduct violative of his constitutional rights. First, the petitioner asserts the trial judge erred by refusing to allow the jury to view videotapes of the petitioner's hypnotic and sodium amytal sessions. Our supreme court thoroughly reviewed this issue on direct appeal; it ruled that the trial judge acted appropriately. See Alley, 776 S.W.2d at 515-16. Thus, the issue has been previously determined. Tenn.Code Ann. \\u00a7 40-30-112(a) (repealed 1995). See also House, 911 S.W.2d at 710-11. Furthermore, the petitioner asserts that the trial court erroneously allowed the jury to consider victim impact evidence. Again, our supreme court conducted an exhaustive review of this issue. See Alley, 776 S.W.2d at 511-13. While the court determined that the evidence was irrelevant and should not have been before the jury, it deemed the error harmless. Id. at 513. This claim has also been previously determined.\\nThe petitioner also argues that \\\"the court improperly interpreted the statutory and mitigating circumstances or the non-statutory mitigating circumstances so as to improperly limit the ability of the defense to present mitigation.\\\" The- petitioner offers no other explanation for this claim and fails to refer to the record or any supportive authority. The issue, therefore, has been waived. Rule 10, Rules of the Court of Criminal Appeals. This issue is without merit.\\nVIII\\nThe petitioner claims that certain jury instructions during the guilt and penalty phase of the trial were unconstitutional. Initially, the petitioner contended that the following instructions during the guilt phase of the trial were unconstitutional: (1) the definition of premeditation and deliberation; (2) the definition of malice which shifted the burden of proof; (3) reasonable doubt; and (4) the confession.\\nThe first claim is based upon the ruling in State v. Brown, 836 S.W.2d 530 (Tenn.1992). In Brown, however, the supreme court did not hold that the instruction on premeditation and deliberation was unconstitutional; it merely suggested abandoning any instruction suggesting that premeditation may be formed in an instant. Id. at 543. This court has consistently held that Brown was not intended to be applied retroactively. See, e.g., Lofton v. State, 898 S.W.2d 246, 250 (Tenn.Crim.App.1994).\\nSecond, the petitioner contends that the instruction on malice impermissibly shifted the burden of proof to the defense. The trial court instructed the jury that there can be express malice or implied malice, but that malice cannot be inferred from deadly intent only; the court also charged that the state always has the burden of proof with regard to every element of the crime and that an inference does not place any burden of proof of any kind upon the defendant. In our view, the instructions, in context, were not erroneous. See, e.g., State v. Bolin, 678 S.W.2d 40, 48 (Tenn.1984) (\\\"a single instruction to a jury may not be judged in artificial isolation but must be viewed in the context of the overall charge\\\").\\nThird, the petitioner claims the reasonable doubt instruction, by use of the term \\\"moral certainty,\\\" violated his due process rights. Our supreme court has consistently upheld this very instruction under similar attacks. See, e.g., State v. Nichols, 877 S.W.2d 722, 734 (Tenn.1994).\\nFinally, with regard to the instructions on the confession, the petitioner argues that the instruction \\\"limited the jury's opportunity to consider evidence concerning reliability of a confession.\\\" The petitioner does not advance any other argument in support of this claim and fails to offer any authority in support thereof. See Rule 10, Rules of the Court of Criminal Appeals. Thus, the claim has been waived. Moreover, the trial court instructed the jury that it was their duty to judge the truth of the confession and to consider all the circumstances surrounding the confession as well as any other evidence which contradicts the confession. In our view, this does not violate any constitutional provision. Thus, the claim is without merit.\\nThe petitioner also contends that the jury instructions during the sentencing phase of the trial, as to the aggravating and mitigating circumstances, were unconstitutional. He insists that the instructions shifted the burden of proof to the petitioner to show the existence of mitigating evidence. An identical argument has previously been rejected by our supreme court. See, e.g., State v. Van Tran, 864 S.W.2d 465, 481 (Tenn.1993) (citing State v. Thompson, 768 S.W.2d 239, 251-52 (Tenn.1989); State v. Boyd, 797 S.W.2d 589, 595-96 (Tenn.1990)). Next, the petitioner claims the instructions failed to narrow the class of persons eligible for the death penalty. This argument has also been rejected by our supreme court. Id. at 481-82. The petitioner also contends that the instructions limited the jury's consideration of mitigating factors, such as sympathy. Again, this particular argument has been rejected in prior cases. Id. at 480.\\nNext, the petitioner claims the instructions diminish the role of the jury in imposing the death penalty. He offers no argument in support of his position. Our death penalty statute has, however, been upheld repeatedly under similar constitutional attacks. See Id. See also State v. Black, 815 S.W.2d 166 (Tenn.1991). The petitioner also contends that the instruction on the heinous, atrocious or cruel aggravating circumstance was vague and over broad. This contention is also without merit. See, e.g., State v. Hines, 919 S.W.2d 573, 587 (Tenn.1995), cert. denied, \\u2014 U.S. -, 117 S.Ct. 133, 136 L.Ed.2d 82 (1996). The petitioner also contends that the instruction on the aggravating circumstances duplicated an element of the crime itself. See State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992). Otherwise, the petitioner offers no supportive argument. Because the petitioner was convicted of premeditated first degree murder, there could be no Middlebrooks issue. This argument is without merit.\\nThe petitioner next claims that the instruction which allowed the application of more than one aggravating circumstance to be based upon the same set of facts is unconstitutional. The petitioner suggests this constitutes impermissible \\\"double counting.\\\" Again, the petitioner does not support his claim with argument or citation to legal precedent. Thus, there really is no merit to this claim. See Tenn.Code Ann. \\u00a7 39-13-204. Finally, the petitioner claims that the reasonable doubt instruction, inclusive of the term \\\"moral certainty,\\\" given during the sentencing phase of the trial is unconstitutional for the same reasons cited in the preceding section. Again, we disagree based upon a litany of prior decisions by our supreme court.\\nIX\\nThe petitioner argues that the Tennessee death penalty statute is unconstitutional. Our supreme court ruled upon this argument on the direct appeal of this case. Alley, 776 S.W.2d at 518. The issue, therefore, has been previously determined. Tenn.Code Ann. \\u00a7 40-30-112(a) (repealed 1995). See also House, 911 S.W.2d at 710-11. Other eases also demonstrate that this broad claim is without merit. See, e.g., State v. Smith, 893 S.W.2d 908 (Tenn.1994); State v. Brimmer, 876 S.W.2d 75 (Tenn.1994); State v. Cazes, 875 S.W.2d 253 (Tenn.1994); State v. Smith, 857 S.W.2d 1 (Tenn.1993); State v. Black, 815 S.W.2d 166 (Tenn.1991); State v. Boyd, 797 S.W.2d 589 (Tenn.1990); State v. Teel, 793 S.W.2d 236 (Tenn.1990); State v. Thompson, 768 S.W.2d 239 (Tenn.1989).\\nCONCLUSION\\nThe record fully supports the post-conviction court's findings and conclusions. The petitioner has not met his burden of proof. We conclude that the petition for post-conviction relief was properly denied. Accordingly, the judgment of the post-conviction court is affirmed.\\nHAYES and BARKER, JJ., concur.\\n. Tennessee Supreme Court Rule 12 provides as follows:\\nTrial Judge's Report in Cases of First Degree Murder.\\nThe report, a copy of which is appended to this rule, shall be completed in its entirety by the trial judge in all first degree murder cases in which life imprisonment or a sentence of death is imposed. In the event more than one defendant is convicted in a first degree murder case, a separate report shall he completed for each defendant.\\nThe report shall be submitted to the defendant's counsel for such comments as counsel desires to make concerning the factual accuracy of the report. If counsel desires, those comments in response shall be attached to the report.\\nThis report shall likewise be submitted to the attorney for the state who may also attach comments to the report.\\nIt shall be the responsibility of the trial judge to compile, or cause to be compiled, all information required by this rule, to certify its accuracy, and to transmit it forthwith to the Clerk of the Supreme Court, sitting in Nashville, after denial of motion for new trial. A duplicate copy shall be included in the technical record.\"}"

tenn/12121997.json

@@ -0,0 +1 @@
+"{\"id\": \"12121997\", \"name\": \"GREER v. EMERSON\", \"name_abbreviation\": \"Greer v. Emerson\", \"decision_date\": \"1801-11\", \"docket_number\": \"\", \"first_page\": \"13\", \"last_page\": \"14\", \"citations\": \"1 Overt. 13\", \"volume\": \"1\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Superior Court of Law and Equity\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T21:07:37.849982+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GREER v. EMERSON.\", \"head_matter\": \"GREER v. EMERSON.\\nIf an overseer directs a slave belonging to his employer to run a horse,& the slave is killed in doing so, trespass will lie.\\nTrespass.\\u2014The defendant was employed by the plaintiff, and lived with him as an Overseer.\\nThe Plaintiff being from home, the defendant ordered a negro the property of the plaintiff, to catch a horse and go with him to the race paths. which were in the neighborhood, for the purpose of straining the horse and ascertaining his speed. The negro obeyed and started the horse, the defendant being present. The horse flew the way, threw the negro, and killed him.\\nCampbell, for the defendant,\\nmoved that the plaintiff should be non-suited, on the ground that the evidence would not support an action of trespass. Case, and not trespass, was the proper form of action. He read several cases, shewing the distinction between trespass and case, and concluded by saying, that it was lawful for the overseer to carry the negro and horse to the paths, and to direct him to strain the horse.\\nIf the act itself was lawful, any consequences which might result could not make it a trespass.\\nOverton and Whiteside, e contra,\\ncontended that the overseer\\u2019s being employed to look after the business of the plaintiff, did not authorise his ordering the slave to do an act which had no connection with that business.\\nThe defendant in ordering the negro to strain the horse, was completely beyond the limits of his authority, and stood in the same situation as if he had not been overseer. 6 D. & E. 125; 2 Bl. Rep. 892, 1055, 983 and 1028.\", \"word_count\": \"373\", \"char_count\": \"2052\", \"text\": \"Per Curiam.\\nLet the evidence go to the jury.\\u2014The line of distinction between trespass and case, in many instances, is so nice, that it seems difficult to discover it ; this appears to be one of that description, but modern authorities seem rather to incline to trespass than case.\\nVerdict for the plaintiff, for $350. Rule for a new trial, which was discharged.\\nVide 5 T. R. 648; 6 T. R. 125; 3 Wil. 403; 1 Esp Rep. 54; 6 T. R. 128, n. 2 Hen. & Mun. 423; 2 Goulds ed. Esp. N. P. 214 215.\"}"

tenn/12657040.json

@@ -0,0 +1 @@
+"{\"id\": \"12657040\", \"name\": \"Rose COLEMAN v. Bryan OLSON\", \"name_abbreviation\": \"Coleman v. Olson\", \"decision_date\": \"2018-06-15\", \"docket_number\": \"No. M2015-00823-SC-R11-CV\", \"first_page\": \"686\", \"last_page\": \"702\", \"citations\": \"551 S.W.3d 686\", \"volume\": \"551\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-27T21:07:59.519187+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Rose COLEMAN\\nv.\\nBryan OLSON\", \"head_matter\": \"Rose COLEMAN\\nv.\\nBryan OLSON\\nNo. M2015-00823-SC-R11-CV\\nSupreme Court of Tennessee, AT NASHVILLE.\\nOctober 11, 2017 Session\\nFILED June 15, 2018\\nChristopher J. Pittman and Zachary L. Talbot, Clarksville, Tennessee, for the appellant, Rose Coleman.\\nTravis N. Meeks, Clarksville, Tennessee, for the appellee, Bryan Olson.\\nErin S. Poland, Clarksville, Tennessee, Amicus Curiae and Guardian Ad Litem for the Minor Child.\\nSharon G. Lee, J., delivered the opinion of the Court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark, Holly Kirby, and Roger A. Page, JJ., joined.\", \"word_count\": \"8381\", \"char_count\": \"52207\", \"text\": \"Sharon G. Lee, J.\\nWhen a divorce complaint is filed and served, a statutory injunction goes into effect prohibiting both parties from changing the beneficiary on any life insurance policy that names either party as the beneficiary without the consent of the other party or a court order. See Tenn. Code Ann. \\u00a7 36-4-106(d)(2) (2010). Jessica Olson sued her husband, Bryan Olson, for divorce. A week later, Ms. Olson, while seriously ill, changed the beneficiary on her life insurance policy from her husband to her mother. Ms. Olson died a few days later. Her mother, Rose Coleman, collected the life insurance benefits. Ms. Coleman sued Mr. Olson for grandparent visitation under Tennessee Code Annotated section 36-6-306 (2010). Mr. Olson responded that he did not oppose visitation, and therefore, Ms. Coleman was not entitled to court-ordered visitation. In addition, Mr. Olson countersued to recover the life insurance benefits. The trial court awarded the insurance benefits to the Olsons' child, finding that Ms. Olson had intended to remove Mr. Olson and substitute their child as the insurance beneficiary. The trial court ordered Ms. Coleman to pay the remaining life insurance funds into the court registry, to account for her expenditures, and to pay a judgment for expenditures that did not benefit the child. The trial court also granted Ms. Coleman's petition for grandparent visitation. The Court of Appeals reversed, awarding the life insurance benefits to Mr. Olson based on Ms. Olson's violation of the statutory injunction and its consideration of Mr. Olson's financial needs. In addition, the Court of Appeals reversed the trial court's award of visitation to Ms. Coleman. We hold that (1) Ms. Olson violated the statutory injunction under Tennessee Code Annotated section 36-4-106(d)(2) when she removed Mr. Olson as her life insurance beneficiary; (2) the Olsons' divorce action abated when Ms. Olson died and the statutory injunction became ineffective; (3) a trial court, after the abatement of a divorce action, may remedy a violation of the statutory injunction after considering the equities of the parties; (4) the trial court erred by awarding the life insurance benefits to the Olsons' child based on the pleadings and the evidence; (5) the Court of Appeals erred by awarding the life insurance benefits to Mr. Olson without sufficient evidence of the equities of the parties; (6) the trial court, on remand, may remedy the violation of the statutory injunction by awarding all or a portion of the life insurance benefits to either or both parties after hearing additional evidence and considering the equities of the parties; and (7) Ms. Coleman was not entitled to court-ordered grandparent visitation absent Mr. Olson's opposition to visitation. We affirm in part and reverse in part the judgment of the Court of Appeals; we reverse and vacate the judgment of the trial court and remand to the trial court for further proceedings.\\nI.\\nIn 2007, Jessica and Bryan Olson were married and the next year they had a child. On July 5, 2012, Ms. Olson sued for divorce in the Montgomery County Chancery Court. When Ms. Olson filed and served the complaint, a statutory injunction went into effect prohibiting both parties from changing the beneficiary on any life insurance policy that named either party as beneficiary without the other's consent or a court order. See Tenn. Code Ann. \\u00a7 36-4-106(d)(2).\\nFour days after filing for divorce, Ms. Olson became ill and was treated in the emergency room of a local hospital. The next day, Ms. Olson returned to the emergency room and then went to Vanderbilt University Medical Center where she was diagnosed with Stevens-Johnson syndrome, a serious and painful skin condition.\\nTwo days later, on July 12, 2012, Ms. Olson signed a document that changed the beneficiary of her life insurance policy from Mr. Olson to Ms. Coleman and named the Olsons' minor child as the contingent beneficiary. Two of Ms. Olson's friends, Jenny Mims and Jessica Steventon, were in Ms. Olson's hospital room when she signed the document. Ms. Mims notarized Ms. Olson's signature and sent the document to Ms. Olson's employer. One week later, on July 19, 2012, Ms. Olson died. As the beneficiary of the life insurance policy, Ms. Coleman collected nearly $400,000.\\nLess than a week after her daughter's death, Ms. Coleman filed a petition in the Montgomery County Juvenile Court against Mr. Olson, alleging that her grandchild was dependent and neglected. She sought either custody or grandparent visitation under Tennessee Code Annotated section 36-6-306. The next month, the juvenile court granted Ms. Coleman four weeks of visitation. Later, the juvenile court granted Ms. Coleman four more weeks of visitation. In late January 2013, Mr. Olson filed a petition in the Montgomery County Circuit Court challenging the juvenile court's jurisdiction to award grandparent visitation under Tennessee Code Annotated section 36-6-306 and the juvenile court's decision to grant visitation without hearing evidence. The circuit court denied the petition. On February 12, 2013, the juvenile court dismissed Ms. Coleman's case without prejudice, based on her notice of voluntary nonsuit.\\nOn February 12, 2013, the same day the juvenile court dismissed her case, Ms. Coleman filed a petition in the Montgomery County Circuit Court for grandparent visitation under Tennessee Code Annotated section 36-6-306. Ms. Coleman alleged that based on her significant relationship with her grandchild and Ms. Olson's death, the Olsons' child would be substantially harmed if his relationship with Ms. Coleman ended. Mr. Olson answered, stating that he did not oppose Ms. Coleman's visitation, and therefore, she was not entitled to court-ordered visitation under Tennessee Code Annotated section 36-6-306. Mr. Olson countersued Ms. Coleman for the life insurance benefits, alleging fraud, forgery, conversion, and undue influence. Mr. Olson argued in his pretrial brief that Ms. Olson secretly changed the beneficiary on her life insurance policy in violation of the statutory injunction.\\nOn November 14 and December 5, 2014, the trial court heard evidence presented by Ms. Coleman and Mr. Olson. Ms. Coleman, who lived in Massachusetts, testified that she and her daughter and grandchild had a good relationship, visited often, and talked almost daily. In late June 2012, Ms. Coleman traveled to Tennessee because of problems between her daughter and Mr. Olson. During that time, Ms. Olson discussed filing for a divorce and changing the beneficiary of her life insurance policy.\\nIn July 2012, Ms. Coleman returned to Tennessee when Ms. Olson became ill. On July 12, 2012, while Ms. Olson was hospitalized, Ms. Coleman, at her daughter's request, prepared a handwritten change of beneficiary document that removed Mr. Olson as the beneficiary and named Ms. Coleman as the primary beneficiary and the Olsons' child as the contingent beneficiary. Ms. Coleman testified that she did not know about the statutory injunction, but understood that Ms. Olson wanted Ms. Coleman to be the administrator of the insurance funds for the benefit of the child. According to Ms. Coleman, Ms. Olson read and signed the change of beneficiary document in the presence of Ms. Coleman, Ms. Mims, and Ms. Steventon. Ms. Coleman explained that when Ms. Olson signed the document, she was intubated, responsive, awake, and able to see. Ms. Olson communicated by writing, pointing, and texting, and she had no questions about what she was signing. Ms. Coleman denied signing Ms. Olson's name on the document or that she or anyone else pressured Ms. Olson to change her insurance beneficiary. Ms. Coleman also denied that she agreed with Ms. Mims and Ms. Steventon to lie about Ms. Olson's signature.\\nMs. Mims testified that Ms. Olson and her child came to live with her and her husband on July 8, 2012. Two days later, Ms. Mims took Ms. Olson to a local emergency room and then went with her to Vanderbilt University Medical Center. According to Ms. Mims, Ms. Olson could communicate, speak, answer questions, and understand what was going on. Ms. Mims visited Ms. Olson at the hospital almost every day, and when they exchanged text messages, Ms. Olson's responses were appropriate. Ms. Mims understood that Ms. Olson wanted to change her life insurance beneficiary for the benefit of her child. On July 12, 2012, Ms. Mims received information from Ms. Olson's employer about how Ms. Olson could change her life insurance beneficiary. Ms. Mims and Ms. Steventon were in Ms. Olson's hospital room when Ms. Coleman handwrote the change of beneficiary document, and they watched Ms. Olson sign the document. Ms. Mims testified that Ms. Olson made Ms. Coleman the beneficiary because Ms. Olson was concerned that if she named her child as beneficiary, Mr. Olson would receive the funds. Ms. Olson was conscious and her eyes were open when she signed the document. Ms. Mims believed that Ms. Olson signed the change of beneficiary document of her own free will.\\nMs. Mims denied that she conspired with Ms. Coleman or that she pressured Ms. Olson to sign the document. Ms. Mims notarized the signed document and faxed it to Ms. Olson's employer.\\nMs. Steventon testified by deposition that she went with Ms. Mims to Vanderbilt University Medical Center to visit Ms. Olson and to witness her signing the change of beneficiary document. Ms. Steventon, Ms. Mims, and Ms. Coleman discussed the information that should be included in the document. Ms. Steventon saw Ms. Coleman handwrite the document, and she saw Ms. Olson sign it. Ms. Olson communicated with them by writing and nodding her head. Ms. Steventon saw no one threaten Ms. Olson, and she saw no one pressure or direct Ms. Olson to sign the document. She believed that Ms. Olson knew what she was doing and that she voluntarily signed the document.\\nJanelle Kascht, the regional manager for Ms. Olson's employer and her supervisor, testified by deposition that in the month before Ms. Olson's death, Ms. Olson told her she was divorcing her husband and needed to get her financial matters in order. The day Ms. Olson went into the hospital, Ms. Kascht called Ms. Olson and explained how to change the beneficiary of her life insurance policy. Ms. Kascht testified that Ms. Olson's responses were appropriate, and she had no concerns about Ms. Olson's ability to understand what was happening.\\nMarcus Johnson, Ms. Olson's friend and coworker, testified that Ms. Olson, before going to the hospital, was upset and talked to him about finding a new apartment, refinancing loans, changing her 401(k), and removing Mr. Olson's name from \\\"everything.\\\" On July 9, 2012, Ms. Olson told Mr. Johnson that she was sick and would not be at work. On July 12, 2012, Mr. Johnson gave Ms. Kascht the change of beneficiary paperwork that Ms. Mims had faxed to him. Mr. Johnson was familiar with Ms. Coleman because she had visited Ms. Olson at work. He had no reason to believe that Ms. Coleman threatened or pressured Ms. Olson into signing the change of beneficiary document.\\nDr. Todd W. Rice, a pulmonary and critical care physician at Vanderbilt University Medical Center, testified by deposition that he treated Ms. Olson and diagnosed her with Stevens-Johnson syndrome. According to his notes from July 12, 2012, Dr. Rice saw Ms. Olson in the intensive care unit during morning rounds and four or five times throughout the day. Her face was red and swollen, she could open her eyes some, and she had sloughing or peeling of the top layer of the eye. Ms. Olson was medicated and intubated, but awake and responsive.\\nMr. Olson testified that he tried to visit and call Ms. Olson in the hospital but could not see or speak with her. Mr. Olson also attempted to contact Ms. Coleman, but she did not respond. Mr. Olson did not know that Ms. Olson had changed her life insurance beneficiary until after he opened her estate. He believed that someone had forged Ms. Olson's signature on the change of beneficiary document. Mr. Olson testified that after Ms. Olson's death, he had marital assets worth $15,000 and marital debts totaling $230,000.\\nBoth parties called handwriting experts to testify about Ms. Olson's signature on the change of beneficiary document. Ms. Coleman's expert, Thomas Vastrick, a forensic document examiner certified by the American Board of Forensic Document Examiners, testified that it was highly probable that the person who signed the change of beneficiary document was the same person who wrote Ms. Olson's known signatures. Mr. Olson's expert witness, Marty Pearce, a forensic document examiner certified by the Institute of Graphological Science, testified that the signature on the change of beneficiary document was not Ms. Olson's genuine signature.\\nMs. Coleman testified that she received $393,000 in life insurance benefits. From these funds, she established a $50,000 college fund and bought items for her grandchild. Ms. Coleman also paid Ms. Olson's funeral expenses, travel expenses for herself and her grandchild, and attorney's fees, leaving a balance of $292,488 in life insurance proceeds. She denied spending the money on herself.\\nAs to grandparent visitation, Ms. Coleman explained that she believed ending her relationship with her grandchild would harm the child and that court intervention was necessary for her to continue the relationship. Ms. Coleman stated that her relationship with the child had strengthened after she spent more time with the child under the juvenile court's order of visitation. Although Mr. Olson allowed Ms. Coleman to have visitation after she dismissed her juvenile court petition, Ms. Coleman testified that she and Mr. Olson did not care for each other and that their communications were unpleasant. Ms. Coleman said that Mr. Olson gave her a \\\"hard time\\\" about visitation, denied her visitation, restricted her visitation, and sometimes did not allow her to talk with the child on the phone. Ms. Coleman admitted that Mr. Olson had restricted her visitation after she did not tell him about her plans to take the child to Disney World. Ms. Coleman attributed the hostility between her and Mr. Olson to their contentious litigation and the marital problems between her daughter and Mr. Olson.\\nMr. Olson confirmed the mutual animosity between the parties and explained that Ms. Coleman had never liked him or approved of his marriage to Ms. Olson. He agreed that his child had a significant relationship with Ms. Coleman and that it was in the child's best interest to continue to visit with her. Mr. Olson stated that he had not opposed visitation and had tried to facilitate a relationship between Ms. Coleman and the child. Ms. Coleman, however, had insisted on scheduling visitation through their attorneys and the court system and failed to communicate her desired visitation dates. Mr. Olson testified that he would ensure that Ms. Coleman continued to have a significant relationship with the child without court intervention.\\nTrial Court's Ruling\\nIn February 2015, the trial court denied Mr. Olson's counterclaim for the life insurance benefits and granted Ms. Coleman's petition for grandparent visitation. The trial court awarded the life insurance benefits to the Olsons' child, finding that Ms. Olson had changed her life insurance beneficiary because of \\\"unintentional or accidental undue influence.\\\" In reaching this decision, the trial court first found that Ms. Olson had signed the change of beneficiary document; although she was suffering from a serious illness, Ms. Olson's mental capacity \\\"was not diminished to the point that she was unable to make decisions.\\\" The trial court concluded that Ms. Olson had intended to change her beneficiary from Mr. Olson to her child to ensure that her child benefitted from the insurance proceeds and determined that whether Ms. Olson's action was \\\"intentional or not, the change of beneficiary form did not accomplish what Ms. Olson intended\\\" because she \\\"inadvertently\\\" made Ms. Coleman the beneficiary. The trial court found no evidence of fraud or forgery.\\nThe trial court also found that the purpose of the statutory injunction in Tennessee Code Annotated section 36-4-106(d)(2) was to maintain the status quo until the trial court finalized the divorce. As a result, the child's interests were \\\"equitably vested in the enforcement of the Order despite the change of beneficiary to Ms. Coleman.\\\" The trial court concluded that Ms. Olson had violated the conditions of the injunction, but her conduct was not \\\"contemptuous\\\" or an intentional defiance of a court order.\\nBased on these findings, the trial court invoked its \\\"inherent equity power to right a wrong and do what is in the best interests of the minor child\\\" and awarded the life insurance benefits to the Olsons' child. The trial court also ordered Ms. Coleman to deposit the remaining funds into the court registry for the use and benefit of the child. The trial court found that Ms. Olson's funeral expenses, necessities for the child, and the child's $50,000 college fund were appropriate expenditures but that Ms. Coleman's expenditures for travel and litigation fees and expenses were not appropriate. The trial court ordered Ms. Coleman to account for her expenditures.\\nAs to grandparent visitation, the trial court awarded Ms. Coleman visitation based on Ms. Coleman's close relationship with her grandchild and Ms. Olson's death, which created a rebuttable presumption that substantial harm to the child would result from the cessation of the relationship. The trial court noted that Mr. Olson had allowed and even sometimes suggested visitation, but doubted that Mr. Olson would allow future visitation except on his terms. The trial court found that the circumstances and animosity between the parties would make it difficult if not impossible for the parties to coordinate reasonable visitation without a court order.\\nIn April 2015, the trial court heard the parties' post-trial motions and testimony about Ms. Coleman's expenditures. Ms. Coleman filed an accounting of her expenditures and deposited $223,093.47 with the court registry. The trial court entered an order finding that Ms. Coleman had received $395,525.15 in life insurance proceeds and accrued interest. The trial court found that some of Ms. Coleman's expenditures from the insurance benefits were inappropriate, including reimbursements to herself for expenses incurred before Ms. Olson's death, Ms. Coleman's legal fees in the juvenile court case, and travel expenses for visitation under the juvenile court order. The trial court entered a judgment against Ms. Coleman for $86,880 and ordered her to pay into the court registry the remaining funds in her savings account for credit toward the judgment. The trial court also awarded $37,140 in attorney and guardian ad litem fees and expenses from the insurance proceeds.\\nCourt of Appeals' Ruling\\nMr. Olson appealed to the Court of Appeals and raised two issues. First, he argued that Ms. Olson had violated the injunction imposed by Tennessee Code Annotated section 36-4-106(d)(2), and therefore, the trial court erred by awarding the life insurance benefits to his child and not restoring the status quo by awarding him the benefits. Second, Mr. Olson argued that the trial court erred by awarding Ms. Coleman grandparent visitation under Tennessee Code Annotated section 36-6-306(a).\\nMs. Coleman raised several issues. First, she argued that the trial court erred by awarding the life insurance proceeds to the Olsons' child, who was not a party to the action. Second, Ms. Coleman insisted that the trial court erred by finding that some of her expenditures from the life insurance proceeds did not benefit the child and by ordering her to make reimbursement. Third, she argued that the trial court erred by ordering the seizure of her savings account to satisfy the order for reimbursement. Finally, Ms. Coleman submitted that the trial court properly awarded her grandparent visitation.\\nThe Court of Appeals focused on the appropriate remedy for a party in a divorce case who was deprived of certain property after the other party violated the statutory injunction. Coleman v. Olson , No. M2015-00823-COA-R3-CV, 2016 WL 6135395, at *14 (Tenn. Ct. App. Oct. 20, 2016). The Court of Appeals adopted the reasoning of the Vermont Supreme Court's decision in Aither v. Estate of Aither , 180 Vt. 472, 913 A.2d 376 (2006), which held that the trial court could remedy the violation of an injunction after the abatement of a divorce action by considering the equities of the parties. The Court of Appeals awarded Mr. Olson the life insurance benefits after considering Mr. Olson's financial situation following his wife's death and remanded the case to the trial court for futher proceedings. In addition, the Court of Appeals reversed the award of visitation to Ms. Coleman because she failed to prove that Mr. Olson had opposed visitation between Ms. Olson's death in July 2012 and the filing of Ms. Coleman's petition for grandparent visitation in February 2013.\\nII.\\nWe granted Ms. Coleman's Tennessee Rule of Appellate Procedure 11 application for permission to appeal and review the decisions of the trial court and the Court of Appeals regarding the distribution of the life insurance proceeds and grandparent visitation.\\nThe issues in this appeal involve similar standards of review. Issues of statutory construction present questions of law that we review de novo with no presumption of correctness. Martin v. Powers , 505 S.W.3d 512, 518 (Tenn. 2016). The primary goal of statutory interpretation is to carry out legislative intent without expanding or restricting the intended scope of the statute. State v. Smith , 484 S.W.3d 393, 403 (Tenn. 2016) (citations omitted). In determining legislative intent, we first must look to the text of the statute and give the words of the statute \\\"their natural and ordinary meaning in the context in which they appear and in light of the statute's general purpose.\\\" Mills v. Fulmarque, Inc. , 360 S.W.3d 362, 368 (Tenn. 2012) (citations omitted). When a statute's language is clear and unambiguous, we enforce the statute as written; we need not consider other sources of information. Frazier v. State , 495 S.W.3d 246, 249 (Tenn. 2016). We apply the plain meaning of a statute's words in normal and accepted usage without a forced interpretation. Baker v. State , 417 S.W.3d 428, 433 (Tenn. 2013). We do not alter or amend statutes or substitute our policy judgment for that of the Legislature. Armbrister v. Armbrister , 414 S.W.3d 685, 704 (Tenn. 2013).\\nWe review the trial court's findings of fact de novo upon the record with a presumption of correctness unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). We defer to the trial court's determinations of witness credibility because the trial judge could observe the witnesses' demeanor and hear in-court testimony. King v. Anderson Cnty. , 419 S.W.3d 232, 245-46 (Tenn. 2013).\\nLife Insurance Proceeds\\nFirst, we review the decisions of the trial court and the Court of Appeals on who should receive Ms. Olson's life insurance benefits: Ms. Coleman, as the named beneficiary; Mr. Olson, as the Court of Appeals determined; or the Olsons' child, as the trial court determined. The differing approaches used by the trial court, the Court of Appeals, and courts in other jurisdictions reflect the difficulty of this issue.\\nWe begin by considering the trial court's decision to award the life insurance funds to the Olsons' child, to require Ms. Coleman to repay the remaining life insurance proceeds, and to account for her expenditures. The basis for the trial court's decision was its finding that there had been \\\"unintentional or accidental undue influence\\\" and that Ms. Olson \\\"inadvertently\\\" made Ms. Coleman the life insurance beneficiary. No doubt, the trial court made a sincere effort to solve a difficult problem and to reach a fair decision. But neither party asked the trial court to award the insurance benefits to the child. Nor did Mr. Olson ask the trial court to establish a constructive trust as a remedy for Ms. Olson's violation of the statutory injunction.\\nIn addition, the trial court's reliance on \\\"accidental undue influence\\\" was an inadequate ground to create, in effect, a constructive trust for the child and to order Ms. Coleman to relinquish the life insurance proceeds. The trial court did not find that Ms. Coleman had engaged in intentional wrongdoing, fraud, forgery, or other misconduct that resulted in Ms. Olson changing her life insurance beneficiary. A trial court can impose a constructive trust\\nagainst one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy.\\nCent. Bus Lines, Inc. v. Hamilton Nat'l Bank , 34 Tenn.App. 480, 239 S.W.2d 583, 585 (1951). Courts have imposed constructive trusts in four types of cases:\\n(1) where a person procures the legal title to property in violation of some duty, express or implied, to the true owner; (2) where the title to property is obtained by fraud, duress or other inequitable means; (3) where a person makes use of some relation of influence or confidence to obtain the legal title upon more advantageous terms than could otherwise have been obtained; and (4) where a person acquires property with notice that another is entitled to its benefits.\\nRoach v. Renfro , 989 S.W.2d 335, 341 (Tenn. Ct. App. 1998) (quoting Intersparex Leddin KG v. Al-Haddad , 852 S.W.2d 245, 249 (Tenn. Ct. App. 1992) ) (internal citation omitted).\\nGiven the lack of evidence to support the establishment of a construtive trust and that neither party requested the trial court to award the life insurance proceeds to the Olsons' child, the trial court erred in creating what amounted to a constructive trust on behalf of the child. It follows then that the trial court erred in ordering Ms. Coleman to pay the remaining funds from the life insurance policy into the court registry, to make an accounting, and to pay a judgment for some of her expenditures.\\nNext, we turn to the Court of Appeals' decision to award Mr. Olson the life insurance benefits based on Ms. Olson's violation of the statutory injunction under Tennessee Code Annotated section 36-4-106(d)(2).\\nTennessee Code Annotated section 36-4-106(d) provides that when a petition for divorce or legal separation is filed and served, the following temporary injunction is in effect against both parties:\\n(2) An injunction restraining and enjoining both parties from voluntarily canceling, modifying, terminating, assigning, or allowing to lapse for nonpayment of premiums, any insurance policy, including, but not limited to, life . where such insurance policy provides coverage to either of the parties or the children, or that names either of the parties or the children as beneficiaries without the consent of the other party or an order of the court. \\\"Modifying\\\" includes any change in beneficiary status.\\nTenn. Code Ann. \\u00a7 36-4-106(d)(2). The statute further provides that the temporary injunction \\\"shall be in effect against both parties until the final decree of divorce or order of legal separation is entered, the petition is dismissed, the parties reach agreement, or until the court modifies or dissolves the injunction.\\\" Id. \\u00a7 36-4-106(d).\\nThe statutory injunction went into effect when Ms. Olson filed and served the divorce complaint. A week later, while in the hospital, Ms. Olson changed her life insurance beneficiary from Mr. Olson to Ms. Coleman. Ms. Olson violated the statutory injunction when she removed Mr. Olson as beneficiary. Upon Ms. Olson's death a few days later, the divorce action abated and the injunction was no longer effective. Blackburn v. Blackburn , 270 S.W.3d 42, 47 (Tenn. 2008) (\\\"It is a well-settled principle of law that a pending divorce action, being purely personal in nature, abates upon the death of one of the parties.\\\").\\nSo the issue is-may Mr. Olson recover the life insurance proceeds from Ms. Coleman in this separate action based on Ms. Olson's violation of the statutory injunction in the Olsons' divorce case that has now abated? This is an issue of first impression in Tennessee. Courts in other states have different views on whether a trial court may provide an equitable remedy for the violation of an injunction after the abatement of a divorce action due to the death of a party. See Aither v. Estate of Aither , 180 Vt. 472, 913 A.2d 376, 379 (2006) ; Nw. Mut. Life Ins. Co. v. Hahn , 713 N.W.2d 709, 712 (Iowa Ct. App. 2006) (acknowledging split in authority).\\nIn Aither , the Vermont Supreme Court considered a similar case where a husband removed his wife as the beneficiary on his life insurance policy in violation of an injunction that barred him from disposing of any marital asset while the divorce was pending. 913 A.2d at 377. The husband died before the divorce action was concluded and his wife asked the trial court to enforce the injunction. She argued that the trial court had the authority to enforce its order through its contempt authority and equitable principles. The trial court decided that it could not enforce the order because the divorce action had abated upon the husband's death. The Vermont Supreme Court reversed, holding that the trial court had the equitable power to award the life insurance proceeds to the wife. Id. at 378. The Vermont Supreme Court, in rejecting a rigid application of the abatement rule, explained that although the death of one party to a divorce abates the divorce action, a \\\"mechanistic application\\\" of the abatement rule \\\"would frustrate the larger purpose of ensuring that courts have the power to enforce their own valid orders to avoid unjust results.\\\" At the same time, the Aither court noted that a per se rule voiding transfers in violation of an injunction would not be desirable. Id. at 379-80. Therefore, the Vermont Supreme Court adopted a flexible approach that would allow the trial court to remedy the violation of the injunctive order, after a divorce action had abated, by considering the equities of the parties. See also Hahn , 713 N.W.2d at 712 (concluding that a court may set aside a change in beneficiary of a life insurance policy made in violation of a temporary injunction); American Family Life Ins. Co. v. Noruk , 528 N.W.2d 921, 924 (Minn. Ct. App. 1995) (holding that equitable considerations control in determining ownership of policy proceeds when a change in beneficiary was made in violation of a temporary restraining order); Standard Ins. Co. v. Schwalbe , 110 Wash.2d 520, 755 P.2d 802, 806 (1988) (holding that the death of a party did not deprive the trial court of equity jurisdiction to set aside a change in beneficiary done in violation of a preliminary injunction); Wilharms v. Wilharms , 93 Wis.2d 671, 287 N.W.2d 779, 784 (1980) (stating that based on equitable principles, a constructive trust may be imposed on life insurance proceeds after a change in beneficiary in violation of a temporary restraining order).But see Ex parte Thomas , 54 So.3d 356, 361 (Ala. 2010) (concluding that an interlocutory order in a divorce action may not be enforced after the death of one of the parties because abatement of that action divests the trial court of subject-matter jurisdiction); Estate of Hackler v. Hackler , 44 Va.App. 51, 602 S.E.2d 426, 436 (2004) (finding no equitable remedy available after divorce case abated upon the death of one of the parties because the court no longer had jurisdiction over the parties' property).\\nWe agree with the Court of Appeals that a divorce action abates upon the death of a party, but a trial court should have the authority to consider the equities of the parties and remedy the violation of a statutory injunction. This approach is consistent with the policy expressed in Tennessee Code Annotated section 36-4-106(d)(2) that the injunction \\\"shall be in effect against both parties until the final decree of divorce or order of legal separation is entered, the petition is dismissed, the parties reach agreement, or until the court modifies or dissolves the injunction.\\\" Simply put, a trial court should have the authority to \\\"right a wrong\\\" and remedy an injustice based on equitable considerations when a party violates a statutory injunction and later dies while the divorce action is pending.\\nYet we disagree with the Court of Appeals' holding that the parties' equities favored a return of the life insurance proceeds to Mr. Olson. This is the first time we have considered this issue, and we are adopting a new approach that allows a court to consider the equities of the parties and provide an equitable remedy for a violation of the statutory injunction. Understandably, the parties did not anticipate the need to offer proof so that the trial court could consider an equitable remedy. Mr. Olson testified briefly about the marital assets and liabilities. Ms. Coleman offered no evidence regarding the equities, and the trial court made no findings of fact on this issue. As a result, there was insufficient evidence in the record for the Court of Appeals to make a determination about the equities of the parties. On remand, the trial court may hear additional evidence and consider the equities of the parties in determining whether either or both parties should receive all or a portion of the life insurance benefits.\\nGrandparent Visitation\\nA dispute over visitation between a parent and a grandparent raises a conflict between the parent's constitutional right to make decisions about the care and custody of the child and the grandparent's right to visitation under Tennessee Code Annotated section 36-6-306. See Smallwood v. Mann , 205 S.W.3d 358, 362-63 (Tenn. 2006). The right of a parent to raise a child is a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution and article I, section 8 of the Tennessee Constitution.\\nHawk v. Hawk , 855 S.W.2d 573, 578-79 (Tenn. 1993) (quoting Meyer v. Nebraska , 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) ; Davis v. Davis , 842 S.W.2d 588, 598-600 (Tenn. 1992) ). Parents' rights to the care and custody of their children without undue government interference is \\\"among the oldest of the judicially recognized liberty interests protected by the due process clauses of the federal and state constitutions.\\\" Lovlace v. Copley , 418 S.W.3d 1, 30 (Tenn. 2013) (citing Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ); see also State ex rel. Bethell v. Kilvington , 100 Tenn. 227, 45 S.W. 433, 435 (1898) (\\\"Ordinarily, the parent is entitled to the custody, companionship, and care of the child, and should not be deprived thereof except by due process of law.\\\"). Parents have a privacy interest that protects them from unwarranted state intervention in parental decision-making and prohibits the court from imposing its subjective notion of what is in the \\\"best interests of the child.\\\" Hawk , 855 S.W.2d at 579-80.\\nYet the state may interfere with these rights when there is a compelling state interest. Smallwood , 205 S.W.3d at 362-63 (citing Nash-Putnam v. McCloud , 921 S.W.2d 170, 174 (Tenn. 1996) ). The state has a role of parens patriae and a duty to protect minors, and the state may intervene in parental decision-making when necessary to prevent substantial harm to the child. In re Hamilton , 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983) (citing State Dept. of Human Servs. v. Northern , 563 S.W.2d 197 (Tenn. Ct. App. 1978) ); see also Hawk , 855 S.W.2d at 581 (holding that \\\"neither the legislature nor a court may properly intervene in parenting decisions absent significant harm to the child from those decisions\\\"). The substantial harm requirement protects parents from unwarranted state interference in the parenting process. Hawk , 855 S.W.2d at 580. Absent substantial harm to the child, a trial court lacks a sufficiently compelling justification for interfering with the parents' privacy rights by ordering grandparent visitation. Id. at 582. In initial proceedings to determine grandparent visitation, parents have the presumption of superior parental rights. Lovlace , 418 S.W.3d at 30.\\nWhen Ms. Coleman filed the petition for grandparent visitation, Tennessee Code Annotated section 36-6-306 provided in part:\\n(a) Any of the following circumstances, when presented in a petition for grandparent visitation to the circuit, chancery, general sessions courts with domestic relations jurisdiction, or juvenile court in matters involving children born out of wedlock . necessitates a hearing if such grandparent visitation is opposed by the custodial parent or parents .:\\n(1) The father or mother of an unmarried minor child is deceased;\\n.\\n(b)(1) In considering a petition for grandparent visitation, the court shall first determine the presence of a danger of substantial harm to the child. Such finding of substantial harm may be based upon cessation of the relationship between an unmarried minor child and the child's grandparent if the court determines, upon proper proof, that:\\n(A) The child had such a significant existing relationship with the grandparent that loss of the relationship is likely to occasion severe emotional harm to the child;\\n.\\n(C) The child had a significant existing relationship with the grandparent and loss of the relationship presents the danger of other direct and substantial harm to the child.\\n.\\n(4) For the purposes of this section, if the child's parent is deceased and the grandparent seeking visitation is the parent of that deceased parent, there shall be a rebuttable presumption of substantial harm to the child based upon the cessation of the relationship between the child and grandparent.\\n(c) Upon an initial finding of danger of substantial harm to the child, the court shall then determine whether grandparent visitation would be in the best interests of the child based upon the factors in \\u00a7 36-6-307. Upon such determination, reasonable visitation may be ordered.\\nTenn. Code Ann. \\u00a7 36-6-306 (2010).\\nThe trial court granted Ms. Coleman's petition for grandparent visitation after finding that her grandchild was at risk of substantial harm if their relationship ended based on the death of the child's mother and the child's close relationship with Ms. Coleman. These circumstances created a rebuttable presumption of substantial harm under Tennessee Code Annotated section 36-6-306(b)(4). The trial court explained that it doubted \\\"Mr. Olson's willingness to allow visitation in the future except on his terms and other conditions that he would impose\\\" and because the \\\"animosity between the parties would make it difficult, if not impossible, for them to coordinate reasonable visitation . absent a Court Order.\\\"\\nThe trial court made detailed findings of fact, and the evidence does not preponderate against those findings. Now, we must determine whether the trial court's finding of the likelihood of future parental opposition constitutes parental opposition as required by Tennessee Code Annotated section 36-6-306(a). The critical words of the statute provide: \\\"Any of the following circumstances, when presented in a petition for grandparent visitation . necessitates a hearing if such grandparent visitation is opposed by the custodial parent or parents....\\\" Tenn. Code Ann. \\u00a7 36-6-306(a) (emphasis added).\\nWe conclude that the Legislature's use of the words, \\\"is opposed by,\\\" means actual existing opposition-not likely future opposition. Had the Legislature intended for evidence of anticipated or likely parental opposition to support an award of grandparent visitation, it could have so indicated by using the words \\\"if such grandparent visitation is opposed or likely will be opposed by the custodial parent.\\\" The Legislature chose not to do so; we are not free to alter or amend the statute. Based on the plain meaning of Tennessee Code Annotated section 36-6-306(a), a petitioning grandparent must establish that the custodial parent opposes grandparent visitation.\\nMs. Coleman could have proven parental opposition by presenting evidence of actual or constructive denial of visitation. Constructive denial occurs when the custodial parent limits or restricts the frequency or conditions of visitation so that it is the same as a denial of visitation. Lovlace , 418 S.W.3d at 21 (quoting Huls v. Alford , No. M2008-00408-COA-R3-CV, 2008 WL 4682219, at *8 (Tenn. Ct. App. Oct. 22, 2008) ). A grandparent cannot rely on Tennessee Code Annotated section 36-6-306 to seek more or different visitation without a finding that the custodial parent actually or effectively opposed visitation. Huls , 2008 WL 4682219, at *8. Unless there is evidence of parental opposition to visitation, a trial court cannot consider whether the child is at substantial risk of harm under Tennessee Code Annotated section 36-6-306(b) or whether visitation would be in the child's best interest under subsection (c).\\nMs. Coleman needed to show that Mr. Olson opposed visitation between the occurrence of the qualifying circumstance and the filing of the petition for visitation. Ms. Coleman's petition for grandparent visitation failed to allege the threshold requirement of parental opposition to visitation between the death of the child's mother on July 19, 2012, and the filing of the petition on February 12, 2013. Instead, Ms. Coleman alleged that she had exercised frequent visitation with the child since the child's birth up to the time she filed her petition for visitation. Ms. Coleman's allegations focused on her close relationship with her grandchild and the death of Ms. Olson and omitted any allegation that Mr. Olson denied her visitation.\\nThe provisions of Tennessee Code Annotated section 36-6-306 for grandparent visitation are only triggered when there is parental opposition to grandparent visitation. Ms. Coleman did not prove parental opposition, and the trial court did not find parental opposition. The trial court's award of grandparent visitation was based on the likelihood of parental opposition and was well-intentioned given the trial court's assessment of the parties' contentious relationship. Yet Tennessee Code Annotated section 36-6-306 requires evidence of parental opposition, rather than evidence of the likelihood of future parental opposition, to grandparent visitation.\\nMs. Coleman makes several arguments. First, she contends that she proved parental opposition by showing evidence of inability to cooperate. According to Ms. Coleman, the trial court's finding that cooperation over visitation is a \\\"practical impossibility\\\" is enough to comply with Tennessee Code Annotated section 36-6-306. We disagree. Tennessee Code Annotated section 36-6-306 requires evidence that the custodial parent opposes grandparent visitation, which means opposition existing when the petition is filed, not opposition likely to occur in the future.\\nSecond, Ms. Coleman contends that there was evidence of parental opposition or only token visitation between Ms. Olson's death in July 2012, and the filing of the grandparent visitation petition in February 2013. Yet Ms. Coleman failed to allege or prove denial of visitation or token visitation, and the trial court did not make these findings of fact. Ms. Coleman relies on her testimony that Mr. Olson denied her visitation in August 2012 when he sent her a text message saying \\\"[t]here's a complication with you taking [the child] on Friday.\\\" This single indication of a \\\"complication\\\" does not amount to opposition to visitation. There was also evidence that the day after Ms. Olson died, Mr. Olson texted Ms. Coleman and told her he was not trying to keep the child from her and offered to let her see the child. He also added, \\\"I really want to work with you on this if you would just talk to me, I'm willing to do what I can for you [ ]either of you.\\\" The July 2012 juvenile court order reflected Mr. Olson's agreement for Ms. Coleman to have visitation at her home in Massachusetts for three weeks in August 2012. In February 2013, Mr. Olson sent a text message to Ms. Coleman asking if she would like to see the child before she returned home and when she wanted visitation in June 2013. Ms. Coleman responded that she was no longer in town and Mr. Olson needed to communicate through his lawyer to her lawyer. In short, Ms. Coleman did not prove parental opposition or token visitation.\\nThird, Ms. Coleman argues that she had exercised \\\"generous unsupervised visitation\\\" but, except for the July 2012 agreed order for visitation in juvenile court, all her visitation was under a court order. This argument conflicts with Ms. Coleman's previous argument that she had been denied visitation. And Tennessee Code Annotated section 36-6-306 requires opposition to visitation and makes no exception for court-ordered visitation. Mr. Olson did not oppose visitation before Ms. Coleman filed the juvenile court petition, and he agreed to three weeks of visitation after the petition was filed. The juvenile court's order granting additional and continuing visitation without evidence of opposition does not constitute evidence that Mr. Olson opposed visitation.\\nNext, Ms. Coleman argues that her juvenile court petition and Mr. Olson's petition to the circuit court challenging the juvenile court's award of visitation are evidence of Mr. Olson's opposition to visitation. This argument ignores the fact that Ms. Coleman's juvenile court petition did not allege that Mr. Olson denied visitation during the four-day period between Ms. Olson's death on July 19, 2012, and the filing of the petition on July 23, 2012. Simply put, there is no evidence that Ms. Coleman had to file the juvenile court petition for custody or visitation only days after her daughter's death. Ms. Coleman admitted that she likely contributed to the discord between the parties by filing the juvenile court petition. Ms. Coleman admitted that after she filed the juvenile court petition, Mr. Olson agreed that she could have three weeks of visitation. Mr. Olson's text messages to Ms. Coleman support his contention that he did not oppose visitation. Mr. Olson's challenge of the juvenile court order was based, in part, on the juvenile court's lack of authority under Tennesee Code Annotated section 36-6-306 to adjudicate a grandparent visitation case where the child is not born out of wedlock and on the juvenile court's additional grant of visitation in September and November 2012 without hearing any evidence.\\nFinally, Ms. Coleman contends that the acrimony between her and Mr. Olson and his mistreatment of Ms. Olson supports the conclusion that future cooperation between the parties about visitation would be impossible. Citing the dissenting opinion in Uselton v. Walton , No. M2012-02333-COA-R3-CV, 2013 WL 3227608, at *19 (Tenn. Ct. App. June 21, 2013) (Highers, J., dissenting), Ms. Coleman argues that we should consider evidence of post-petition opposition to visitation. Again, these arguments fail because Tennessee Code Annotated section 36-6-306 requires evidence of parental opposition when the petition is filed and requires evidence of existing opposition, not future opposition.\\nIn short, Ms. Coleman failed to allege and prove parental opposition to visitation. We agree with the Court of Appeals that the trial court erred by awarding Ms. Coleman grandparent visitation under Tennessee Code Annotated section 36-6-306 absent evidence of parental opposition.\\nIII.\\nIn summary, we hold that Ms. Olson violated the statutory injunction imposed by Tennessee Code Annotated section 36-4-106(d)(2) when she removed Mr. Olson as her life insurance beneficiary. The Olsons' divorce action abated when Ms. Olson died and the statutory injunction became ineffective. A trial court, after the abatement of a divorce action, may remedy a violation of the statutory injunction by considering the equities of the parties. Here, the trial court erred by awarding the life insurance benefits to the Olsons' child based on the pleadings and evidence in the case. The Court of Appeals erred by awarding the life insurance benefits to Mr. Olson absent sufficient evidence of the equities of the parties. On remand, the trial court, after hearing additional evidence and considering the equities of the parties, may remedy the violation of the statutory injunction by awarding all or a portion of the life insurance proceeds to either or both parties. In addition, Ms. Coleman was not entitled to court-ordered grandparent visitation absent Mr. Olson's opposition to visitation.\\nWe affirm in part and reverse in part the judgment of the Court of Appeals, and we reverse and vacate the judgment of the trial court and remand to the trial court for further proceedings consistent with this opinion. We tax the costs of this appeal equally between Rose Coleman and Bryan Olson, for which execution may issue if necessary.\\nTennessee Code Annotated section 36-4-106(d)(2) provides in part:\\n(d) Upon the filing of a petition for divorce or legal separation, and upon personal service of the complaint and summons on the respondent ., the following temporary injunctions shall be in effect against both parties .:\\n(2) An injunction restraining and enjoining both parties from voluntarily canceling, modifying, terminating, assigning, or allowing to lapse for nonpayment of premiums, any insurance policy, including, but not limited to, life, . where such insurance policy . names either of the parties or the children as beneficiaries without the consent of the other party or an order of the court. \\\"Modifying\\\" includes any change in beneficiary status.\\nTenn. Code Ann. \\u00a7 36-4-106 (2010).\\nMr. Olson amended his counter-petition to sue Ms. Mims, alleging collusion between her and Ms. Coleman resulting in the change in Ms. Olson's life insurance beneficiary. Mr. Olson later voluntarily dismissed Ms. Mims from the case.\\nThe child's court-appointed guardian ad litem participated, but called no witnesses.\\nThis amount included $7,500 in refunded legal fees from Ms. Coleman's former attorney, Carrie W. Gasaway, who withdrew from the case.\\nSee also Owens v. Sims , 43 Tenn. 544, 548-49 (1866) ; Swan v. Harrison , 42 Tenn. 534, 536-40 (1865).\\nThe other enumerated circumstances that require a hearing under Tennessee Code Annotated section 36-6-306(a) are\\n(2) The child's father or mother are divorced, legally separated, or were never married to each other;\\n(3) The child's father or mother has been missing for not less than six (6) months;\\n(4) The court of another state has ordered grandparent visitation;\\n(5) The child resided in the home of the grandparent for a period of twelve (12) months or more and was subsequently removed from the home by the parent or parents .; or\\n(6) The child and the grandparent maintained a significant existing relationship for a period of twelve (12) months or more immediately preceding severance of the relationship, this relationship was severed by the parent or parents for reasons other than abuse or presence of a danger of substantial harm to the child, and severance of this relationship is likely to occasion substantial emotional harm to the child.\\nTenn. Code Ann. \\u00a7 36-6-306(a)(2)-(6).\"}"

tenn/2654761.json

@@ -0,0 +1 @@
+"{\"id\": \"2654761\", \"name\": \"THE EAST TENNESSEE, VIRGINIA & GEORGIA RAILROAD CO., in error, v. JOHN G. STUART\", \"name_abbreviation\": \"East Tennessee, Virginia & Georgia Railroad v. Stuart\", \"decision_date\": \"1875-06\", \"docket_number\": \"\", \"first_page\": \"376\", \"last_page\": \"378\", \"citations\": \"1 Shan. Cas. 376\", \"volume\": \"1\", \"reporter\": \"Tennessee Cases with Notes and Annotations\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T17:33:16.654682+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE EAST TENNESSEE, VIRGINIA & GEORGIA RAILROAD CO., in error, v. JOHN G. STUART.\", \"head_matter\": \"THE EAST TENNESSEE, VIRGINIA & GEORGIA RAILROAD CO., in error, v. JOHN G. STUART.\\nKnoxville,\\nJune Special Term, 1875.\\n1.PLEADING AND PRACTICE. Declaration. No canse of action, judgment arrested; cause defectively stated, defect cured by verdict.\\nWhere the case made in the declaration does not constitute a cause of action, the judgment will be arrested notwithstanding the verdict, for the verdict only establishes the truth of the case made in the declaration; but where it appears that the case made in the declaration, giving a fair meaning\\u2019 and intendment to the g-eneral lang-uage used, is a good cause of action though defectively stated, there being no demurrer, the defect will be cured by verdict. ( P. 377.) [See note 5 under sec. 4694 of the Code; note 2 under sec. 4g32; note 2 under sec. 4594.]\\nCited with approval: 1 Chitty\\u2019s PL, 672, 673; Stephen\\u2019s 147; Horsely v. Branch, 1 Hum., 199; Brown v. Parks, I-Ium., 294.\\n8\\n2. SAME. Same. Good cause of action defectively stated.\\nA declaration which avers that the plaintiff \\u201cdelivered at the depot of the defendant,\\u201d a railroad common carrier, a certain quantity of marble, \\u201cproperly prepared for market,\\u201d and requested defendant\\u2019s agent to transport it to market, which he failed and neglected and refused to do within a reasonable time, to his damage, etc., shows a good cause of action, thoug-h defectively stated. (P.377.) [See Code, sec. 4617, and notes.]\\n3. SAME. Same. Measure of damages; demurrer overruled; presumption of proper charge, when no bill of exceptions.\\nThe said declaration, among- other damages, stated as resulting- to the plaintiff from the wrong- alleged, averred that his marble quarries really became worthless. Such supposed damage was too remote, and notwithstanding that a demurrer to this part of the declaration was improperly overruled by the court, still as it was the duty of the judge, on the trial, to instruct the jury properly upon the measure of damag-es, the supreme court will presume that he did so, where there is no bill of exceptions showing the charge of the court to the jury. (P. 378.) [As to necessity of bill of exceptions, see notes 4,11, 22 under sec. 4693 of the Code.]\", \"word_count\": \"874\", \"char_count\": \"5112\", \"text\": \"McFarland,. J.,\\ndelivered the opinion of the court.\\nThis action was by Stuart to recover damages for the failure of the defendants to receive and transport, as common carriers, a quantity of marble. The judgment was for the plaintiff. The first question presented in argument in this court is predicated upon a motion in the court below to arrest the judgment upon the ground that no cause of action is stated in the declaration.\\nThe declaration avers that the plaintiff was engaged in quarrying and dressing marble for market, and that \\\"he delivered at the depot of the defendant\\\" a certain quantity of marble \\\"properly prepared for market,\\\" and urged and requested the agent of the defendant to forward the same to market, but he failed and neglected and refused to do so within a reasonable time. The objection is that the declaration avers the marble ivas delivered at the depot, etc., but does not aver to whom it was delivered.; and second, that it does not aver that the marble was consigned to any particular person or persons, or that it was directed to' any particular person or place, or that the request was to carry to any particular place or market.\\n. It may be conceded that where the case made in the declaration does not constitute a cause of action, the judgment will be arrested, notwithstanding the verdict, for the verdict only establishes the truth of the case made in the declaration; but where it appears that the case made in the declaration, giving a fair meaning and intendment to the general language used, is a good cause of action, though defectively stated, there being no demurrer, the defect will be cured by verdict.\\nSee on this subject 1st Ohitty, PL, 672-3; Stephen's PL, p. 147; Horsely v. Branch, 1 Hum., 199; Brown v. Parks, 8 Hum., 294. Such we think is this case. The declaration is that the marble ivas prepared for market, and delivered at the depot, and the defendant's agent requested to transport it to market. These general terms may well be taken to mean that the marble was prepared for market, and properly directed in the usual way, and the request was to transport in accordance with these directions, and that these facts were proven, as manifestly without this there could have been no recovery. In such case, the defect, if it be one, is cured by verdict. This construction is favored by our statutes. Second. The declaration in stating tbe damages resulting to tbe plaintiff from tbe wrong alleged, avers, 1st, tbe loss of tbe marble delivered, and, 2d, that his marble quarries really became worthless. To this latter a demurrer was filed, which was overruled. It is conceded that such supposed damage would be too remote, but notwithstanding bis aci\\u00f3n upon tbe demurrer, it was tbe duty of tbe judge on tbe trial to- instruct tbe jury properly upon tbe measure of damages, and as there is no bill of exceptions, we must presume be did so.\\nTbe judgment will be affirmed.\"}"

tenn/8476455.json

@@ -0,0 +1 @@
+"{\"id\": \"8476455\", \"name\": \"Sarah Ann Wessells vs. Francis M. Wessells & others\", \"name_abbreviation\": \"Wessells v. Wessells\", \"decision_date\": \"1872-10\", \"docket_number\": \"\", \"first_page\": \"60\", \"last_page\": \"67\", \"citations\": \"1 Tenn. Ch. R. 60\", \"volume\": \"1\", \"reporter\": \"Tennessee Chancery Reports\", \"court\": \"Tennessee Chancery Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T21:29:15.851536+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Sarah Ann Wessells vs. Francis M. Wessells & others.\", \"head_matter\": \"Sarah Ann Wessells vs. Francis M. Wessells & others.\\nOctober Term, 1872.\\nPRACTICE \\u2014 Pro confesso on publication, when it may be taken.\\u2014 Under Rule XI of the New Chancery Rules, upon publication commenced five days before the commencement of the term, requiring the defendant to appear by a given day during the term, the bill may be taken for confessed, prepared and set for hearing during that term, if no defense be made within three days after the day at which the defendant is required to appear.\\nPractice, when dependant is required to depend under old practice and new rules. \\u2014 The old practice, the provisions of the Code, and the New Rules, considered in respect to the time at which the defendant is required to make defense.\\nJ. II. Shanhland, for complainant.\\nNo appearance for defendants.\", \"word_count\": \"2592\", \"char_count\": \"14271\", \"text\": \"The Chancellor :\\nWhen this cause was before me on a former day of the term, I set aside tbe interlocutory order made therein, and the proceedings taken under the order, as premature. I reserved the decision of the question whether, upon the publication which had been made, the complainant was entitled to take the bill for confessed, prepare it, and set it for hearing at this term. The counsel for the complainant has elected to set the case for hearing upon the pro confesso and proof taken previous to the date of my former order, and has, upon the cause being reached on the docket, insisted upon his client's right to a hearing, and sustained his position in an able argument and well prepared brief. He has left the court no excuse, if it were inclined to find one, to avoid a decision of the point. My only regret is that the argument has only been on one side, for its ability, and the earnestness with which it has been pressed, may, without opposing weight, impair the equipoise of the scales of justice.\\nPrevious to the New Pules in Chancery the question would have presented little difficulty.\\nBy the Code, \\u00a7 2830 : ' ' All civil process in courts of law or equity, except in cases otherwise provided in this Code, shall be returnable to the first day of the term next ensuing their issuance, if issued and served five days before such term. If issued or served within the five days, they shall be returnable to the first day of the succeeding term.\\\"\\nThis section of the Code embodied what had always been the law in this state. The old act of North Carolina, of 1794, 1, 10, the foundation of much of our practice, contained a similar provision. Under this law, the return day of all original civil process was the first day of the term after its issuance, if served five days before that day, otherwise the first day of the next succeeding term. When publication was allowed, in lieu of personal service of process, it was clear, in the absence of any positive provision of law to the contrary, that the publication must be made five days before the first day of the next term after it was ordered, to require the defendant to appear at the first term. And by saying that tbe publication must be made, I mean, of course, that it must not only be ordered but completed at least five days before tbe term at wbicb tbe defendant could be required to appear. Otherwise, it is obvious, that a less measure of justice would be meted out to a defendant served only with constructive notice by publication, than to one actually notified by service of process.\\nTbe Code, \\u00a7 4348, provides: \\\"Original process may, by rule of court applicable to tbe court where made, be returnable to the rule days, and all others except final process may be so returnable.\\\"\\nSection 4350 is : \\\" Service of the original subpoena on the defendant five days before the return day, shall bind him to appear within the first three days of the term, if the court hold so long, otherwise on the first day of the term.\\\"\\nSection 4351: \\\" But if the subpoena be served on the defendant within five days before the return day, he is not bound to appear before the first day of the second term after the service.\\\"\\nThese sections are, it must be admitted, not very accurately worded, but the meaning of the legislature is plain enough when we look to the entire legislation on the subject. The chancery court may make original process returnable to a rule day, if it sees proper, but, nevertheless, the defendant shall not be required to appear at the first term thereafter, under the general law of \\u00a7 2830, unless the process is served five days before that term; if within the five days, the defendant is not required to appear until the next succeeding term. The loose wording is in using \\\"return day\\\" in the last two sections, instead of \\\"first day of the term,\\\" which is the phraseology of \\u00a7 2830, or \\\"sitting of the court,\\\" which are the words of 1851, 365, 1. That the latter is what was meant is obvious from the use of the words \\\"first three days of the term\\\" and \\\"first day of the term.\\\" This is rendered plain by the language of \\u00a7 4351. The provision there is, that, \\\"if the subpoena be served on the defendant within five days before the \\\"return day,\\\" he is not bound to appear before tbe first day of tbe second term after service.\\\" If tbe words \\\"return day\\\" in this section meant bterally tbe rule day in a term to wbicb process might be made returnable by a rule of court, tbe first day of tbe second term after service would throw tbe appearance entirely over one term. For tbe first day of tbe next term, would be tbe first day of tbe first term after such service, not tbe first day of tbe second term. Manifestly this language contemplates a service within tbe five days of a term, and tbe words ' ' return day ' ' have been loosely used for tbe \\\"first day of tbe term,\\\" wbicb are tbe words of \\u00a7 2830.\\nThis is made still more clear by another consideration. By \\u00a7 4348 original process may be made returnable to tbe rule days \\u2014 that is any rule day. Suppose the court makes process returnable to tbe first Monday in any month, either in vacation or term time, as it may. A plaintiff sues out bis process in December, returnable to tbe January rule day. Construing tbe statute bterally, if tbe process happens to be served within tbe five days before tbe January rule day, tbe defendant would not be required to appear at tbe April term, but be would have until tbe first day of tbe second term thereafter, wbicb would be tbe October term.\\nTbe only way to avoid this \\u00a3 ' reductio ad absurdum \\\" is to treat tbe \\\"return day\\\" meant in \\u00a7 \\u00a7 4350 and 4351 as tbe \\\"first day of tbe term\\\" next ensuing tbe issuance of tbe writ. And so it has always been construed in this Chancery District, and elsewhere in this state until very recently. Tbe act of Chancellor Frierson in making tbe third Monday of bis court a return day for original process, was made at my instance with others. It was intended to enable parties to have partitions, and sales of property of infants and married women, where there was, hi fact, no contest, without tbe delay of a whole term. Usually such appbcations were postponed by tbe parties themselves until court bad \\u2022 actually met. Process issued then could only be made returnable to tbe next succeeding term. And it was considered as doubt ful whether a guardian ad litem could be appointed for the infants, or next friend for married women until after the return day. It was to meet this requirement, not to change the general law, that the rule in question was adopted. No one ever thought, at that time, of proceeding against a party in invitum upon process made returnable to the third Monday of the court, until the next succeeding term. And, I know as a matter of fact, that none of the older lawyers ever made process returnable to that day in cases which they knew would be litigated. That practice has originated since the war with the younger lawyers. And I would not have the least hesitation in pronouncing it altogether erroneous, except for the fact that, as I understand, it has been practiced upon at Memphis, and seems to have influenced the drafting of Rule XI of the New Eules.\\nThe learned counsel is mistaken in supposing that if his publication has been regularly made under \\u00a7 \\u00a7 4352 to 4359 of the Code, and his pro confesso properly had under \\u00a7 4369, his case maybe heard at the same term when the pro confesso is taken, under \\u00a7 4370. The language of that section is that, in the case he supposes, \\\"the cause maybe set for hearing at the return term of the process.\\\" Now, the return term of process is not, as we have just seen, necessarily the term to which the process may be made returnable on its face, but the term to which it is made returnable by law, depending on the fact whether it is executed five days before the first day of the term, or within the five days. So the return term of the process of publication depended upon whether the publication was completed five days before the first day of the term, or afterwards. It is the equivocal use of the word \\\"return day,\\\" for which the Code is principally responsible, that has led to all these difficulties. In one sense, it means the return day mentioned in the process or publication. In another sense, it means the day on which the defendant is required by the general law to appear and defend, and this latter day was always, previous,to the New Eules, the first day of a term of court. It was never, either in tbe case of process or publication, a day in tbe middle of a term. Previous to tbe New Rules, therefore, upon a publication such as was had in this case, the complainant might take his bill for confessed if the defendants did not appear and defend at the time required, but he could only set the cause for hearing at \\\"the return term\\\" that is at the term the first day of which was more than five days from the completion of the publication.\\nThe old law, with some indulgence for the weakness of humanity, gave a breathing spell to the defendant between the execution of process and the time when the defendant was required to appear. In these days of railroads and telegraphs wo are inclined to act upon the motto of Macbeth \\\"be it thought and done.\\\"\\nThe first section of Rule XI of the New Rules does provide that ' all process which shall have been issued more than five days before the first day of the term,\\\" may be made returnable to any Monday of the term, and if executed five days before such return day, the defendant shall make defense within the three succeeding days, and the cause shall stand to be proceeded in at that term. And by the second section it is provided, that if such process be executed within the five days before such return day, the same shall be returned to the succeeding Monday, and the defendant must appear within the next three days, and the cause shall stand to be proceeded in at that term.\\nThis is all very plain and does not admit of the least doubt. But to entitle the complainant to the benefits of this provision, the original process must have issued at least five days before the first day of the term. A single day's longer delay gives the defendant the right, under the general law already discussed, to the first day of the next succeeding term to make defense.\\nThe difficulty grows out of the wording of the next section, which is in these words: \\\"The two foregoing Rules shall also apply to cases in which publication is made for a defendant.\\\" Does this mean, that, if the publication be commenced five days before the first day of the term, the defendant may be required to appear at any Monday of the term, and the cause may be proceeded with at that term as in tbe case of the actual service of process? Or does it mean onty to change the law to this extent, that, whereas, before the New Rules, the publication must be completed fire days before the first day of the term to make that the return term, under the New Rules the same result may be obtained by a publication commenced only twenty-eight days before the first day of the term ? Unless the latter construction be adopted, the defendant by publication is treated less favorably than the defendant by actual service of process, under the New Rules as compared with the old. law. The law ought to favor that class of defendants rather than the other. But it is clearly within the competency of the legislature to provide otherwise.\\nThe best construction which can be put upon a doubtful statute is that which is in accord with the usage and practice of the profession under it. The practical good sense of the body of the profession, or any large fraction of it, is generally better than the abstract or theoretical views of a court composed of a single judge. I understand that the practice, at Memphis is to consider a publication commenced five days before court as equivalent to the issue of process five days before the first day of the term, and that \\\"the cause shall stand to be proceeded in at that term.\\\" I have learned also from several of the Chancellors, who framed the Rules, and from my predecessor who drafted Rule XI, that such was the intention of the Chancellors. These facts arc sufficient to control my construction of the Rule, even if my own convictions were otherwise. I shall hold therefore that such publication is sufficient to authorize the complainant to prepare his case, if the defendants do not appear, and set it for hearing at the first term. But the case must be regularly set on the Trial Docket in its order, and must not be taken up out of its order. The defendant is entitled to the full benefit of the law's delay in this regard, so as, under \\u00a7 4376 of tbe Code, to appear and defend at any time before final decree, as of course.\\nTbe complainant seems to bare been a little too fast in taMng bis decree pro confesso. It is talren on tbe very day when tbe defendant was required to appear, namely tbe 3d Monday of October. Of course tbe defendants bad tbe whole of that day, in any event, to appear and defend, and, under tbe New Buies, tbey bad tbe three succeeding days to appear and defend. As tbe defendants have not yet appeared this is more a matter of form than substance, but might present some difficulty upon a writ of error. Tbe complainant is entitled now to tbe pro confesso under tbe Eule in question.\\nTbe merits of tbe case are with tbe complainant, and she may take a decree accordingly.\"}"

tenn/8480379.json

@@ -0,0 +1 @@
+"{\"id\": \"8480379\", \"name\": \"Robert Sanders v. Lewis Metcalf & others\", \"name_abbreviation\": \"Sanders v. Metcalf\", \"decision_date\": \"1873-10\", \"docket_number\": \"\", \"first_page\": \"419\", \"last_page\": \"431\", \"citations\": \"1 Tenn. Ch. R. 419\", \"volume\": \"1\", \"reporter\": \"Tennessee Chancery Reports\", \"court\": \"Tennessee Chancery Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T21:29:15.851536+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert Sanders v. Lewis Metcalf & others.\", \"head_matter\": \"Robert Sanders v. Lewis Metcalf & others.\\nOctober Term, 1873.\\nSpecial judge \\u2014 Oath oe office. \\u2014 A special judge appointed hy the governor is not required to qualify hy taking the oath of office before the clerk and master of the court under 1871, 73,2, and an injunction against his acting as judge upon this ground is unwarranted.\\nInjunction \\u2014 Special judge. \\u2014 An injunction, granted at the instance of a private citizen, restraining a judge, duly commissioned hy the governor of the state, from discharging his judicial functions, is wholly unwarranted.\\nSame \\u2014 Order punishing an officer for contempt. \\u2014 The judge of any court, proceeding according to law, has authority to control the officers of court and punish them for contempt, and no other judge has any authority to enjoin the execution of the order made for this purpose.\\nSame \\u2014 Commissioners oe county court. \\u2014 The chancery court lias no authority to enjoin commissioners appointed by the county court to carry out its order for the removal of the county-seat, especially if the county court is not made a party to the suit.\\nQueue. \\u2014 \\\"Whether the court of chancery has any jurisdiction, at the suit of an individual, to revise the action of the county court upon the question of the removal of the county seat under the act of 1873,103, 1.\\nW. JE. B. Jones, for complainant.\\nA. 8\\u25a0 Colyar, for defendants.\", \"word_count\": \"4430\", \"char_count\": \"25383\", \"text\": \"The Chancellor :\\nThis is an original bill addressed to the Hon. A. S. Marks, Chancellor of Grundy Chancery Court, and comes before me under the act of July 6,1870, ch. 31 (T. & S. Rev. 4416, a), by reason of the incompetency of Chancellor Marks, upon an application to dissolve the injunction granted upon the filing' of the bill. Both parties have appeared by counsel and have furnished me with written briefs, declining to make oral arguments. The application is based upon two grounds :\\n1. The want of equity on the face of the bill.\\n2. Because the equity of the bill, if any, has been fully met by the answers of the defendants.\\nThe facts to be gathered from the bill are as follows :\\nUnder the act of the legislature, passed on the 21st March, 1873, the County Court of Grundy County, at its July term, 1873, ordered an election to be held to see if the people of that county desired to remove the county-seat from Altamont to Tracy City, and directed the sheriff to open and hold an election at the different precincts, or election grounds, on the 20th September, 1873. The sheriff did, on that day, hold said election, but failed to open the polls in the 8th civil district, \\\" and thereby,\\\" says the bill, \\\" deprived twelve or more legal voters of said county, who had assembled at the precinct of said district, from voting in said election.\\\" At the October term of said county court, the returns of said election were made to Jno. C. Lockhart, the chairman of said county court, and said votes were counted in open court, and the result declared that \\\" no removal \\\" was carried by a majority of two votes, and proclamation was made, by order of the court, by the sheriff to that effect, and the minutes regularly signed. The vote as returned was 448 votes for Tracy City and 226 votes for \\\"no removal,\\\" and one vote for Altamont. On the next day, being Tuesday, the county court, \\\"by the fraudulent misrepresentations and influence of A. S. Colyar\\\" (who is no party to the suit), were induced to, and did pretend to re-count said votes, and to reject four votes counted for no removal as illegal, on parol testimony of one or two witnesses in opposition to the certified returns, and made the result 448 votes for Tracy City, and 222 votes for no removal, and one for Altamont. Said court asserted that two-thirds of the votes cast were in favor of Tracy City, and then ordered the removal of the county-seat of Grundy county from Altamont to Tracy City. It further ordered the clerk of said county court to remove his books and the papers of his office to Tracy City. The court also appointed the defendants, John C. Lockhart, Jas. E. Ball, Eerrill Lawton, William Minton and John Tipton commissioners to select a suitable place for a courthouse, and a place for holding the courts and for the public offices of the county, and to cause the officers to remove the books and papers of the respective county offices of said county to Tracy City. The complainant, Sanders, and one J. M. Bouldin, who is no party to this suit, appeared in open court before the said county court, and showed that they were citizens and taxpayers of Grundy county, and prayed an appeal from \\\"both of which orders,\\\" meaning, it is to be presumed, the order that two-thirds of the votes cast were in favor of Tarcy City, and the order appointing commissioners to effect the removal of the county offices. The appeal thus made was refused by the court. Afterwards, on the 11th of October, 1873, complainant and said Bouldin presented to the Hon. J. C. Guild, one of the judges of the state, their petition against the county court of Grundy county for writs of certiorari and supersedeas to take up to the circuit court for Grundy county the proceedings of the county court removing the county-seat of Grundy county from Altamont to Tracy City, and superseding the action of said court entirely in said matter. These writs of certiorari and supersedeas were awarded them, upon their giving bond and security for the prosecution thereof, and on the 15th of October, 1873, they filed said petition in the office of the clerk of the circuit court of Grundy county, and gave the bond and security, and writs of certiorari and supersedeas were issued, and were on same day placed in the hands of the sheriff of Grundy county.\\nThe complainant was appointed, in 1870, the'Clerk and Master of the Chancery Court of Grundy County, and duly qualified as such, and was inducted into office, and is still the legal Clerk and Master. The Hon. A. S. Marks, who is Chancellor of the Fourth Chancery District, in which is included Grundy county, certified to His Ex. John C. Brown, governor of the state, his incompetency to try many causes in the said Grundy Chancery Court, and the governor, thereupon, commissioned the defendant, Lewis Metcalf, to open and hold said court on the first Wednesday after the second Monday in October, 1873, which would be the 15th day of said month. Under this commission, the said Metcalf went to Tracy City and took the oath of office before a justice of the peace, and proceeded to discharge the duties of Chancellor. On the 15th of October, 1873, he ordered complainant to appear before him, and bring his books and papers to Tracy City, and appointed the defendant, J. B. Colyar, clerk and master pro tempore. On the same or the next day (the date is blurred in the copy of the bill before me), said Met-calf, under his own proper hand, issued an attachment to the sheriff of Grundy county, commanding him to arrest complainant and bring him before him (said Metcalf), and also to take the books, records and papers belonging to the office of clerk and master of said Chancery Court of Grundy County. Under this authority, the sheriff, with others, on the 17th of October, 1873, arrested the complainant, and took from him a large number of books and records and files of papers belonging to said office, and are endeavoring to get the bal- anee of said books, records and papers. On the 18th of October, 1873, said Metcalf, acting as special judge, proceeded to try complainant, and fined Mm fifty dollars and all costs of the proceedings, and ordered him into the custody of the sheriff until he produced and delivered up the remaining books, records and papers of the office, to John B. Colyar at Tracy City, and thus the matter now stands.\\nOn the 15th of October, 1873, several of the attorneys practicing in the Grundy Chancery Court assembled at Alta-mont, in the court-house, and no regular or special judge attending to hold said court, complainant, according to law, opened and held an election for special judge, when B. J. Hill was elected such special judge by the practicing solicitors and attorneys of said court, was sworn and inducted into office, and opened and held said court, and adjourned said court on the same day to a special term to be held in the court-house in Altamont, on the 3d Monday in January, 1874.\\nThese are the facts as set forth in the bill, the residue of the allegations consisting of inferences and deductions and some qualifying epithets. The statements of the answers are in substantial accord with those of the bill upon the facts, except in relation to what took place in the county court upon the return of the votes of the election for the removal of the county-seat. The answer of Lockhart, the chairman of the-county court, which is adopted by the other defendants is, in substance, that when the returns were made by the sheriff to the court, he, as chairman, ordered the sheriff and clerk of the court to retire from the court-room and count the votes and make the calculation of the number of votes cast for removal, and the number for no removal. That the sheriff and clerk returned and reported that there was a majority of two votes for \\\"no removal,\\\" or rather that \\\" removal\\\" had failed to receive a two-thirds majority of all the qualified voters of the county by two votes. That immediately A. S. Colyar, and other attorneys representing the petitioners for removal, objected to the report, and said that tbe sheriff and clerk had counted several votes for \\\"no removal, ' ' when the returns showed that the word ' ' Altamont ' ' was written on the tickets, instead of the words \\\"no removal.\\\" Some members of the court also objected at the time that it was not the duty of the chairman to declare the result, but of the- court, but respondent Lockhart said he believed the act of the legislature left the whole matter to the chairman, and he ordered the sheriff to make proclamation, which was done. The argument still continued after the proclamation, and respondent, after reading the act over carefully and further consideration, concluded that he had been too hasty, and that it was left to the court and not to the chairman to determhie the matter, and he thereupon announced to the court that he would leave the whole matter to the court. At this time not an order had been made on the minutes, and the court forthwith, on the same day, proceeded to count the votes, and hearing the proof, the county court decided that there were 448 votes for Tracy City and 222 votes for no removal, and this decision was made by the court with but one dissenting voice. This was all on the same day, and the minutes were not signed by respondent until the entries had been made in conformity with the orders of the court as set out in the bill, and until just before court adjourned two days afterwards.\\nThe only marked differences between the two accounts of these proceedings are, that the complainant states the first proclamation was made by the court, after the votes were counted in open court, whereas the'defendants say it was made by the chairman against the protest of some members of the court; and that the complainant says the reconsideration was the next day, and brought about ' ' by the fraudulent representations \\\" of a person who is no party to this suit; whereas the defendants say it was on the same day, and upon the voluntary action of the chairman himself. Both sides agree that the matter was reconsidered, and that the county court did declare that the removal to Tracy City was carried by a two-thirds vote, and did order the removal and appoint commissioners to carry the order into practical execution. The difference, therefore, is in the details which led to the result, not in the result actually reached.\\nThis bill is filed against Lewis Metcalf, Special Judge under the commission of the Governor; T. T. Levan, the sheriff of Grundy county, and Joseph Clay and Frank Noddy, special deputies of the sheriff in executing the attachment for the complainant; John B. Colyar, the clerk and master pro. tern., appointed by Metcalf; John C. Lockhart, William Minton, John Tipton, Ferrell Lawton and James E. Ball, the commissioners appointed by the county court to carry out the order of removal of the county-seat. The prayer of the bill is that an injunction issue restraining said Metcalf from acting as special judge until sworn in according to law (which complainant insists can only be done by him as clerk and master), and from holding said Grundy Chancery Court at Tracy City7', and from issuing any writs of attachment, or making orders, or issuing any writs to arrest complainant because he will not appear and act as clerk and master at Tracy City, and compelling him to remove his official records and books and papers to Tracy City; also enjoining any execution from issuing on said $50 fine and costs; also enjoining defendants Colyar, Levan, Clay, Noddy, or any officer of Grundy county, from taking, holding, or interfering with the complainant, his books and papers of office; also enjoining said commissioners, and said Lockhart, as chairman, from doing anything: further towards the removal of said county-seat, or the compelling of the removal of the books, papers, and records of said county from Altamont to Tracy City; and that, on final hearing, said injunction be made perpetual, \\\"and said illegal proceedings be declared void, and justice be done, and for full, complete and general relief.\\\"\\nThis bill was sworn to, and a fiat obtained upon it in the words and figures following, viz :\\n\\\" State of Tennessee : \\u2014 To the Master in Chancery, at Al-tamont, for Grundy county, Tennessee \\u2014 File this bill, and issue process as prayed, when the complainant enters into bond, with security, as required by law. Take the injunction bond in the sum of five thousand dollars.\\nJohn B. Hoyle,\\nJudge of the 4th Circuit, in the State of Tennessee.\\\"\\nThe fiat is not dated, but the bond executed under it bears date the 22d of'October, 1873. The injunction itself is not before me, but, it is said, was issued by the complainant himself as clerk and master.\\nThe injunction under consideration, it will be noticed, may be divided into three branches :\\n1. It restrains the defendant, Metcalf, from acting as Special Judge until sworn according to law; from holding the Grundy Chancery Court at Tracy City; from issuing any writs of attachment, or making orders, or issuing any writs to arrest complainant because he will not appear and act as Clerk and Master at Tracy City, and compelling him to remove his records, etc., to that city.\\n2. It enjoins the issuance of execution for the $50 and costs adjudged against complainant for contempt of court, and enjoins Colyar, Levan, etc., or any officer of Grundy county, from taking, holding, or interfering with complainant, his books and papers of office.\\n3. It enjoins the commissioners appointed by the county court from doing anything further towards the removal of the county-seat, or the compelling the records of said county to be removed to Tracy City.\\nThe reason assigned for enjoining the defendant, Metcalf, from acting as special judge, is, that he is not authorized to act as judge until sworn in by the complainant in his chas-acter of Clerk and Master. This assumption is based both in the bill and in the argument of complainant's counsel, upon \\u00a7 3,930 of the Code. Upon turning to that section it will be found only to provide for the compensation of Special Judges. The reference intended is to the act of Jan. 28, 1871, ch. 73, \\u00a7 2, which is no part of the Code, but has been inserted in Thompson and Stegers revisal under \\u00a7 3,930 a to 3,930 e for the convenience of reference. It is . obvious tbat tbe provisions of \\u00a7 2 of tbat act, prescribing tbe oatb to be taken and tbat it shall be administered by tbe clerk and master, are intended for tbe special judge elected by tbe members of tbe bar at tbe election to be held by tbe clerk and master under that act. As a matter of convenience, tbe oath to be taken and the mode of administering it in tbe particular case are modified to suit tbe exigency. There was no intention to change the general law, which requires a different oath for judicial officers and before a different functionary. Code, \\u00a7 310 and \\u00a7 752.\\n\\u2022 Besides, the provision for taking tbe oatb is merely directory, and there cannot be a doubt tbat even a special judge elected by tbe bar might, if necessary or. convenient, take tbe oatb of office under tbe general law. Or, for tbat matter, act without taking the oatb at all, so far as the validity of bis orders and decrees are concerned; tbe only penalty being the pecuniary one fixed by tbe Code, \\u00a7 311. The complainant is, therefore, clearly mistaken in supposing that tbe defendant, Metcalf, was required, as a preliminary to tbe discharge of bis judicial duties, to take tbe oath before Mm. Tbat part of tbe injunction which seeks to restrain him from discharging those duties until be shall have taken tbe oatb of office before tbe complainant, is, consequently, clearly unauthorized.\\nTbe residue of tbe first branch of tbe injunction seeks to restrain tbe defendant, Metcalf, from making particular orders, which are specified, in future, when be shall, if ever, undertake to a,ct under bis commission. I know of no law to authorize such an injunction, It would be a singular anomaly, if an individual citizen could obtain an injunction to restrain a regular, commissioned judge from discharging bis functions in any case brought before Mm, in which tbat citizen's interests might be involved, according to his best judgment at tbe time tbe case is beard. Tbat tbe judge of another court should have tbe power to issue such an injunction cannot be conceded for a moment. Each judge is supreme in Ms own sphere, and cannot be restrained in the discharge of bis functions by the fiat of a brother judge. The suitors of his court may be restrained in proper cases from proceeding before him, but no such process can run against him. The law takes for granted that he will \\\"administer justice without respect to persons, and impartially discharge all the duties incumbent upon him as a judge, to the best of his skill and ability.\\\"\\nThe injunction, therefore, so far as it is directed against the defendant, Metcalf,, is without authority, and must be dissolved.\\nThe second branch of the injunction is to enjoin the orders and decrees made by the defendant, Metcalf, when acting as special judge, against the defendant for contempt of court, and as regulatory of the records, books, and papers of -the clerk and master's office, and of the conduct of the clerk and master himself. Of course, there can be no doubt of the jurisdiction of the presiding judge to control the conduct of the officers of the court, and to punish them for a disobedience of its orders. Such power is absolutely essential to the exercise of judicial authority, and .inherent in every court. It is, moreover, expressly conferred in this state by the Code, section 4,099, subsec. 4, and section 4,106, subsecs. 2 and 3. So vital is this power to the respectability, safety and existence of the judicial department of the government, that it has been held'that the judgment of a court in punishment for contempt is not subject to revision by appeal, writ of error, certiorari, or otherwise, although such judgment may be void on its face. Martin's case, 5 Yer. 456; Malone's case, 3 Sneed, 413; State v. Galloway, 5 Cold. 326. The remedy to test the legality of the imprisonment is by writ of habeas corpus. 5 Cold. 326. And, no doubt, the validity of a judgment for a fine may be tested by action against the officer who undertakes to collect it. But to concede that another judge may enjoin such a judgment, is to concede not merely the power of revision, but that a judgment may be attacked by- a new suit instituted for the purpose, even when the court has jurisdiction both of the subject- matter and the person, a position in conflict with every principle of law, when the matter of attack is only what was before the court when the judgment was rendered, and when the party making the attack admits that he had the opportunity to make defense.\\nThe part of the injunction which restrains the execution of the judgment made upon the proceeding for contempt cannot be siistained, and must be dissolved.\\nThe third branch of the injunction which has been granted in this case, is directed against John C. Lockhart and others, commissioners appointed by the county court to carry out its order for the removal of the county-seat, and seeks to restrain them from discharging the duties devolved upon them by order of that court. If they are the Commissioners of the County Court, acting under its orders, made as a court, this court has no power to interfere with them. The application should be to the circuit court, which is authorized to exercise a supervisory control over inferior tribunals, not to this court. Besides, the complainant has not made the necessary parties to contest the validity of their appointment, or of the objects for which they were appointed. The removal of the county-seat of a county is a matter in which all the citizens of the county are interested, and their proper representative is the county court. An injunction upon these defendants as individuals would be nugatory, for the county court might immediately appoint other commissioners to execute their orders, and so on, ad infinitum. The complainant is not entitled to the process of injunction until he brings before the court all the necessary parties to enable the court to decide upon the real question at issue. The injunction, so far as these defendants are concerned, must also be dissolved.\\nThese conclusions are arrived at without considering the anomaly of an injunction issued by a person as clerk and master, who is also the party in whose favor the injunction issues, and who is, as his bill shows, in the custody of the sheriff upon a judgment of the court of which he is cb .'k. I am bound to assume the validity of the judgment, the ground upon which the authority of the special judge is questioned being clearly untenable, and there not being before me the necessary parties to test the validity of the removal of the county-seat to Tracy City.\\nIt may not be improper to add that I am clearly of opinion that the court of chancery has no jurisdiction, at the suit of an individual, to revise the judgment of the county court upon the question of the removal of the county-seat. The 7th section of the act of 1873, ch. 103, is in these words: \\\" That the sheriff shall make his returns [of the election] to the judge or chairman of the county court, and at the next quarterly session after the election the vote cast shall be counted and the result declared, and if the proposition to remove the county-seat receive the requisite number of votes, then the county court shall proceed to make all necessary provisions for the removal.\\\" It is clear to my mind that the legislature has, by this language, entrusted to the county court at its quarterly session, as the proper oigan of the county, as a quasi corporation, the right to count the votes and declare the result. The bill admits that the court did, at the quarterly session at which the vote was counted, though after having at first come to a different conclusion, declare that the removal had been carried, and did proceed to make provision for the removal. This is precisely the same as if the legislature had ordered the election, and, upon the returns made to it, had declared the result to be in favor of removal, and had passed- an act to that effect. As soon as the result was declared, the county-seat was eo instanti changed as if.it had been done by an act of the legislature. The county court were commissioners appointed by the legislature to make the removal by declaring the result of the election, and their act, not being judicial but legislative, is conclusive, and the courts have no power to enquire into its validity. The remedy is with the legislature. Ford v. Farmer, 9 Hum. 182; Bridgenor v. Rodgers, 1 Cold. 261; and see People v. Collins, 19 Wend. 56.\\nAnd even if the act were in its nature judicial, it falls within that large class of cases where the decision is final, and not subject to revision by any other judicial tribunal: Such as the survey of a town by commissioners under legislative act to determine the boundaries of lots. McKean v. Tait, 1 Tenn. 199. And the adjudication of commissioners on pre-emption claims. Barnet v. Russel, 2 Tenn. 10. And the acts of a surveyor under our entry laws, even where he plainly violates his duty, 2 Tenn. 23, 305, 340. And officers authorized to issue grants, 1 Tenn. 230; 4 Hum. 203. And the register of the elective franchise. 6 Cold. 233.\\nIn all such cases the act is conclusive as to individuals. The government alone can dispute its validity. 3 Hawks, 520 ; 1 Dev. & Bat. 306 ; 5 Wheat. 271; 3 Hum. 305, 311.\\nAt any rate, whatever may be the revising power of other courts in the premises, which must be left to them to determine, the court of chancery has no jurisdiction at the suit of a citizen to enjoin the county court from exercising the duty expressly imposed upon it by the legislature.\\nThe motion of the defendants must be sustained, and the injunction dissolved.\"}"

tenn/8485181.json

@@ -0,0 +1 @@
+"{\"id\": \"8485181\", \"name\": \"DIBBRELL v. MITCHELL ET AL.\", \"name_abbreviation\": \"Dibbrell v. Mitchell\", \"decision_date\": \"1877-12\", \"docket_number\": \"\", \"first_page\": \"591\", \"last_page\": \"593\", \"citations\": \"2 Shan. Cas. 591\", \"volume\": \"2\", \"reporter\": \"Tennessee Cases with Notes and Annotations\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T20:36:39.835192+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"DIBBRELL v. MITCHELL ET AL.\", \"head_matter\": \"DIBBRELL v. MITCHELL ET AL.\\nNashville,\\nDecember Term, 1877.\\n(S. C., 2 Leg. Rep., 203, 204.)\\nCO-SURETIES. Contribution among, on guardian\\u2019s bond.\\nA court of chancery cannot give a surety upon a guardian bond relief under the Code, sec. 3678 [Shannon\\u2019s Code, sec. 5448], asking contributions from co-sureties and sureties upon former bonds, unless he has' been compelled to make payment. They cannot be brought into court to malee contribution to an anticipated recovery against said surety. [See notes under sees. 5390 and 4265 of the Code.]\\nCited with approval: 1 Story Eq. Jur., sec. 492 et seq.\\nCited and construed: Code (1858), secs. 3678, 3625; Code (T. & S.), sec. 3625a; Shannon\\u2019s Code, secs. 5448, 5390; acts 1809, ch. 69; 1841-42, ch. 117 [Shannon\\u2019s Code, secs. 4265-4267, 4294.]\", \"word_count\": \"850\", \"char_count\": \"4917\", \"text\": \"Sjohed, J.,\\ndelivered the opinion of the court:\\nThe bill is brought by the surety on a guardian bond against the guardian, the co-security of the complainant, and the sureties on a former bond, and other parties, for the purpose, among other tilings, of compelling contribution from the sureties on the former bond to aid the com plainant in discharging an anticipated recovery against Mm on account of the indebtedness of his principal to his ward. The bill does not ailege that the complainant has yet made any payment on account of his said principal, but only that suit has been instituted against the complainant with a view to hold him liable. The proceeding, as against the sureties on the former bond, is based upon the provisions of (he Act of 1809, ch. 69, sec. 3, which is embodied in the Code in the words following:\\n\\\"The sureties in either bond, who have been compelled to make payments thereon for the principal, have the same remedies against the sureties in all the bonds in force at the time of the default, as co-sureties in the same bond have against each other, the recovery being properly proportioned, according to the penalties of the several bonds:\\\" Code, sec. 86T8 [Shannon's Code, sec. 5448].\\nThe remedy in favor of co-securities on the same bond was first given by the Act of 1809, ch. 69, as follows: \\\"A -co-surety against whom judgment has been rendered for the whole debt, or who has paid more than his ratable share of such judgment, may have judgment, on motion, against all the other parties to the instrument not included in the original judgment for the ratable share of each.\\\" Code, sec. 3625. This was amended by the Act of 1870, ch. 99, by interpolating the words, \\\"or who has paid the same, and, whether included in the original judgment or not,\\\" so as to read thus: \\\"A co-surety against whom judgment lias been rendered-for the whole debt, or who hgs paid the same, or more than Ms ratable share of said judgment, may have judgment, on motion, against all of the other parties 10 the instrument, whether included in the original judgment or not, for the ratable share of each.\\\" Code, sec. 3625a [Shannon's Code, sec. 5390, where the types interpolate in the fifth line, the words, \\\"original instrument or the,\\\" which should be stricken out]. It is clear that the remedy thus given to the surety on either of the several bonds of a guardian is confined to cases where actual payment has been made. Tlxe bill in this case not only fails to allege such payment, but its allegations actually negative the fact of payment, and it is manifest that payment being the condition precedent to the summary remedy at law, no remedy exists in a court of chancery, unless some extraordinary equities are set up which would bring the case within the principle which would authorize the quia timet proceeding. We cannot see that any such extraordinary equities are apparent in this case. The successive biennial bonds of the guardian under our statutes are cumulative securities for the protection of the ward. The renewal bond does not discharge the old one, but the liability of all the sureties upon the several bonds continues, and under the Act of 1841, ch. 117, the default of the principal must be enforced upon the'several bonds in the inverse order of their execution, the sureties on the last bond being first liable. In this case it is not necessary to inquire whether this order of liability has been abrogated or changed by any subsequent legislation or judicial construction. [Tljis order of liability remains the law of this state. See notes under sec. 4265 of the Code.] It is enough to say in this case that the right to contribution under the statute accrues from and by the actual payment by the surety. And this is not only the plain import of the statute, but it is the doctrine of the court of equity also. 1 Story Eq. Jur., sec. 492 et seq.\\nWe must hold, therefore, that this bill, so far as it seeks contribution from the defendants, Parker and Meeks, was prematurely brought, and the demurrer was properly allowed.\\nAffirm the decree, and remand the cause for further proceedings.\"}"

tenn/8508179.json

@@ -0,0 +1 @@
+"{\"id\": \"8508179\", \"name\": \"STATE OF TENNESSEE on the relations of JUANITA SPENCE, Complainant-Appellee, v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY et al., Defendants-Appellants\", \"name_abbreviation\": \"State ex rel. Spence v. Metropolitan Government\", \"decision_date\": \"1971-01-08\", \"docket_number\": \"\", \"first_page\": \"161\", \"last_page\": \"188\", \"citations\": \"63 Tenn. App. 161\", \"volume\": \"63\", \"reporter\": \"Tennessee Appeals Reports\", \"court\": \"Tennessee Court of Appeals\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-11T00:32:11.120995+00:00\", \"provenance\": \"CAP\", \"judges\": \"Puryear and Todd, JJ., concur.\", \"parties\": \"STATE OF TENNESSEE on the relations of JUANITA SPENCE, Complainant-Appellee, v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY et al., Defendants-Appellants.\", \"head_matter\": \"STATE OF TENNESSEE on the relations of JUANITA SPENCE, Complainant-Appellee, v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY et al., Defendants-Appellants.\\n469 S.W.2d 777.\\nMiddle Section.\\nJanuary 8, 1971.\\nCertiorari Denied By Supreme Court May 3, 1971.\\nJoe M. Ragland, Dept, of Law, Metropolitan Government of Nashville and Davidson County, Nashville, for defendants-appellants.\\nSeymour Samuels, Jr., Farris, Evans & Evans, Nashville, for complainant-appellee.\", \"word_count\": \"5704\", \"char_count\": \"35123\", \"text\": \"I.\\nTHE CASE\\nSHRIVER, P.J.\\n(M.S.). This is an appeal by the defendants from a final decree of Part II of the Chan- eery Court at Nashville, granting a peremptory writ of mandamus directing the Metropolitan Government of Nashville and Davidson County, the Mayor and the other named defendants to reinstate complainant, Juanita Spence, in her position as Senior Clerk in the classified service of the Metropolitan Government of Nashville and Davidson County, and to restore to her all employee benefits and pension rights to which she would have been entitled had she not been dismissed. The decree also awards judgment against the Metropolitan Government for her loss of earnings from October 15,1969 to the date of her reinstatement. The interlocutory injunction previously issued, enjoining the Civil Service Commission from hearing or acting on her pending appeal, was made permanent.\\nII.\\nASSIGNMENT OF ERROR\\nDefendants-appellants have filed four assignments of error, as follows:\\n\\\"I. The Court erred in issuing a peremptory writ of mandamus and an interlocutory injunction prohibiting the Civil Service Commission from taking further action on complainant's appeal contrary to Tennessee Code Annotated sec. 27-914 which provides that judicial review of proceedings before a municipal or county official or board affecting the Civil Service status of a municipal or county employee is restricted to common law certiorari.\\nII. The Court erred in issuing a peremptory writ of mandamus and an interlocutory injunction since any action by the Court would be improper where complainant failed to exhanst her administrative remedy prescribed by the Rules and Regulations of the Civil Service Commission which require review of disciplinary actions by a Department Head before the Civil Service Commission.\\nIII. The Court erred in holding that a Department Head of the Metropolitan Government failed to follow the procedures established by Chapter 9, Section 6 of the Rules and Regulations of the Civil Service Commission by refusing to grant complainant a hearing prior to dismissing her from the classified service.\\nIV. The Court erred in refusing to admit testimony relating to the alleged delay by the Civil Service Commission in granting complainant a prompt hearing on the grounds that such testimony constituted an offer of compromise and was therefore, inadmissible. ' '\\nIII.\\nTHE PLEADINGS\\nThe bill of complainant entitled a \\\"Bill for a Mandamus\\\", filed March 25, 1970, avers that complainant, Juanita Spence, was an employee of the former City of Nashville and its successor, The Metropolitan Government of Nashville and Davidson County, hereinafter referred to as the Metro Government; that her employment was continuous from December 7, 1954 until she was discharged from classified service on October 10, 1969, at which time she held a Civil Service position of Senior Clerk at a monthly salary of $450.00.\\nThe bill describes the several defendants, including W. D. Lamb, Director of Public Works of the Metro Government, and refers to various sections of the Metropolitan Charter which are pertinent to the questions involved here. Complainant avers that she was notified of her dismissal verbally on or about October 10, 1969 and received in the mail two change of status forms which indicated that her dismissal was effective October 10, 1969, said forms being filed as exhibits to the bill.\\nIt is alleged that on October 18, 1969, complainant filed with the Civil Service Commission of the Metro Government a request for a review of her dismissal, after which defendant, W. D. Lamb, wrote a letter to her dated October 21, 1969, Exhibit \\\"F\\\" to the bill, wherein he referred to complainant's dismissal as being effective October 24, 1969 and advised her of her rights to a prompt departmental hearing, pursuant to Section 6 of Chapter 9 of the Rules of the Civil Service Commission.\\nIt is averred that, under date of November 12, 1969, complainant received another letter from defendant Lamb, Exhibit \\\" G \\\" to the bill, wherein he referred to his conversation and meeting with complainant as a hearing accorded her under the provisions of the Civil Service Commission Rules.\\nThe bill refers to several notices from the Civil Service Commission concerning a hearing on her appeal, which notices are made exhibits to the bill, and she charges that, by reason of the failure of defendant Lamb to file charges with the Commission and the failure of the Commission to promptly hear her appeal, she was denied relief to which she was entitled under the Metro Charter and, therefore, had exhausted her administrative remedies and was entitled to the relief prayed.\\nThe prayers of the bill are: (1) for an alternative writ of mandamus, requiring defendants to reinstate complainant in her position as Senior Clerk in the classified service of the Metro Government; and (2) that she be given a decree against the Metro Government for a sum of money sufficient to reimburse her for the salary she had lost by her improper dismissal.\\nAn Amended and Supplemental Bill for Mandamus was filed April 3, 1970 in which it is alleged that, on March 24, 1970, the day on which complainant swore to her original bill before the Clerk and Master, the defendant Commission deferred a hearing on complainant's appeal indefinitely and that, on March 31, 1970, six days after the filing of her bill, she received in the mail a copy of the charges against her filed with the Civil Service Commission.\\nThereafter, on May 7, 1970, complainant filed an Amendment to her Amended and Supplemental Bill in which she avers that the filing of the charges against her with the Civil Service Commission was an effort to circumvent and avoid a hearing in the Chancery Court on her bill for mandamus, and she prays that the Civil Service Commission be enjoined from hearing or acting on the appeal and that, after a hearing by the Court, a peremptory writ of mandamus issue.\\nBy fiat of Chancellor Alfred T. Adams, the injunction was issued as prayed.\\nOn motion of complainant, certain parts of the Answer of defendants was stricken, following which an Amended Answer was filed wherein the action of the Civil Service Commission in deferring a hearing on complainant's appeal to said Commission are set forth, and further averring that said Civil Service Commission, under the provisions of the Constitution of Tennessee and the Charter of the Metropolitan Government of Nashville and Davidson County, should he permitted by the Court to hear fully the administrative matter of the dismissal of Juanita Spence, but which hearing previously had been enjoined by the Court.\\nThe Answer recites:\\n\\\"The Metropolitan Civil Service Commission is prepared to set this matter for hearing as soon as this Honorable Court will allow.\\\"\\nIt is further averred that Juanita Spence was notified by letter of October 21, 1969 of her dismissal, effective October 24, 1969, and the reasons for her dismissal set out; that the Civil Service Commission set the meeting for hearing on April 14, 1970 after the filing of formal charges by W. D. Lamb, Director of Public Works, and that the Commission stood ready to again set the matter for hearing if permitted to do so by the removal of the temporary injunction.\\nOther material allegations of the bill are denied.\\nAttached to the Answer as an exhibit is a copy of the charges against Juanita Spence, filed with the Civil Service Commission, wherein Chapter 9, Sections 1 and 2, Employee Conduct, are set forth. Also, Chapter 6, Section 6, is quoted, following which specifications are set out in detail of the charges of misconduct and violation of Civil Service Rules and Regulations of Metro Government by Miss Spence which are the basis of the action of the Director of Public Works in dismissing complainant.\\nIV.\\nTHE FACTS\\nIn addition to the facts as contained in the Original Bill and the Answer, most of which are not in dispute, some additional facts and circumstances need to be related.\\nWhen it is said that most of the pertinent facts are not in dispute, it is not intended to say that the charges as filed with the Civil Service Commission are either true or not true.\\nOn the other hand, the fact of the dismissal of complainant and the proceedings that followed seem to be undisputed except the single question as to whether her dismissal was on October 10 or October 24.\\nIn this connection, it seems clear that Miss Spence was notified that she was to be dismissed and the Change of Status forms that were sent her indicated the dismissal was effective October 10, 1969. However, it is shown in the proof that when it became known that her employee insurance and other matters were involved, the dismissal date was moved up to October 24,1969.\\nOn one of the Change of Status forms received by complainant, the following typewritten statement is made:\\n\\\"Employee dismissed in accordance with Civil Service Rules and Regulations in Chapter 9, Section 6.\\nUnreasonable Absenteeism,. Discourteous treatment of fellow employees, failure of good behavior which reflects discredit upon herself/'\\nOn October 18,1969, apparently in the handwriting of complainant, appears the following:\\n\\\"The Honorable Metropolitan Civil Serv. Comm.\\nMr. Joe Huggins, Dir. of Civil Service\\n3rd Ave. North, Public Square\\nDear Sir:\\nI please wish to have a hearing at your next meeting because Mr. W. D. Lamb, Jr. Dir. of Public Works has discharged me from service as of Oct. 24, 1969 after 15. years of service.\\nThanks very much.\\n(Miss) Juanita Spence\\n2200 Natchez Trace\\nNashville, Tenn.\\n37212\\\"\\nThereafter, on October 21, 1969, she received the following letter:\\n\\\"Miss Juanita Spence\\n2200 Natchez Trace\\nNashville, Tennessee\\nRe: Dismissal \\u2014 Appeal\\nDear Miss Spence:\\nYou have been notified that effective October 24, 1969, you are dismissed for excessive absenteeism, discourteous treatment of your fellow employees and misconduct unbecoming a Public Works employee.\\nI have been advised that you have written a letter to the Civil Service Commission appealing your dismissal, however, I wish to call your attention to the enclosed Chapter 9, Section 6 of the Civil Service Rules and Regulations. Also enclosed is a copy of the Grievance Panel members for your information.\\nIf it is your desire to appeal your dismissal, please advise me of a convenient date with you in order that we may schedule a hearing between you and I.\\nThe attached copies are advising you of your rights and procedures in processing your appeal.\\nVery Truly yours,\\n/s/ Wm. D. Lamb\\nWDL/bf William D. Lamb, Director\\nDepartment of Public Works\\nAttachments\\nCC: Mr. Howard Anderson.\\nMr. Joe L. Huggins\\\"\\nOn November 12, 1969, sbe received tbe following letter:\\n\\\"Miss Juanita Spence\\n2200 Natchez Trace\\nNashville, Tennessee\\nDear Miss Spence:\\nYou have been notified of your dismissal from the Metropolitan Department of Public Works, both verbally and by the receipt of a status form, which stated the reasons, effective at the end of the working day, October 24, 1969. This notification was further confirmed by a letter from the Director to you dated October 21,1969, with attachments of the Civil Service Rules and Regulations with regard to your rights of appeal and for a hearing.\\nAfter your receipt of this letter you contacted the Director and received a hearing which was held on Tuesday, October 28th, at 11:30 A.M. in the Conference Room of the Engineering Building.\\nYou had been advised in the letter of October 21, 1969 of your rights to be accompanied by a representative at this hearing, however, at your own choosing, you attended the hearing without a representative, as did the Director. At this hearing, as you know, you were given a full opportunity to set forth any facts that you desired to present to me and I discussed with you in more specific terms the reasons for your termination, particularly in regard to the discourteous treatment of fellow employees and other reasons as set out in my letter of October 21,1969.\\nIn view of all the facts which have been submitted to me and the information before me, I feel compelled to regretfully terminate your services with this department for violation of Chapter 9, Section 1, and Chapter 9, Section 6. As you were advised in my letter to you on October 21, 1969, you have a right to appeal this dismissal to the Civil Service Commission in accordance with Chapter 9, Section 11, of the Civil Service Rules and Regulations.\\nI believe at the hearing you advised me that you had already submitted an appeal to the Civil Service Commission, therefore, the time limit does not become a factor.\\nYour truly,\\n/s/ Wm. D. Lamb\\nWDL/bf William D. Lamb, Director\\nDepartment of Public Works\\nCC: Mr. Joe L. Huggins\\\"\\nExhibit No. 14, entitled \\\"Metropolitan Department of Public Works \\u2014 Memorandum\\u2014Date: 10-28-69\\\", recites:\\n' ' The hearing was held in the Conference Room at the Engineering Building, at the request of Miss Spence, at 11:30 A.M. on 10-28-69.\\\"\\nThe proceedings at the hearing are recounted in said Memorandum which is signed \\\"Vm. D. Lamb\\\".\\nThereafter, she was notified by a communication from the Director of Personnel, Joe L. Huggins, that the Civil Service Commission would meet in the Council Chamber at the Metropolitan Courthouse on Tuesday, November 25, 1969, at 9:00 A.M. to consider the appeal of her dismissal and her presence was requested.\\nAgain, on January 16, 1970, she was sent an excerpt from the Minutes of the meeting of the Civil Service Commission held on January 13,1970, said excerpt being:\\n\\\"On the Juanita Spence appeal for hearing (concerning dismissal from Public Works Department) the charges are being prepared and hearing will be set after charges have been sent. ' '\\nUnder date of January 29th, she received from Mr. Huggins another excerpt from the Minutes of the Commission as follows:\\n\\\"The Commission deferred action on appeal of Miss Juanita Spence, Public Works Department \\u2014 concerning dismissal from that department.\\\"\\nOn February 12th, still another communication with an excerpt from the Minutes, as follows:\\n\\\"On appeal of Miss Juanita Spence (Public Works) the Commission directed Legal Department to prepare charges so that the Commission can set date for hearing. ' '\\nAgain, on February 26th, another communication was received with an excerpt from the Minutes, as follows:\\n\\\"On the appeal of Miss Juanita Spence, Public Works Department concerning dismissal, the Commission awaits Mr. W. D. Lamb, Director of Public Works, release of charges on Miss Spence. After Mr. Lamb releases charges the Legal Department can send charges and then set date for hearing.\\\"\\nAnd again on March 11,1970, a similar communication with the following excerpt:\\n\\\"Commission deferred appeal on Miss Juanita Spence, Public Works Department (concerning dismissal).\\\"\\nThe following letter dated March 26, 1970, after an alternative writ of mandamus had been issued and service accepted by a Metro attorney, was received by complainant:\\n\\\"Miss Juanita Spence\\n2200 Natchez Trace\\nNashville, Tennessee\\nDear Miss Spence:\\nThe following is an excerpt from the Minutes of the meeting of the Civil Service Commission held March 24,1970:\\n\\\"Commission deferred appeal of Miss Juanita Spence indefinitely. (Public Works Department \\u2014 concerning dismissal.) '\\nSincerely,\\n/s/ Joe L. Huggins\\nJLH :mew Joe L. Huggins, Secretary\\nCivil Service Commission\\nCC: Mr. Seymour Samuels\\n18th Floor\\nThird National Bank Bldg.\\nNashville, Tennessee\\\"\\nA copy of the Minutes of the Civil Service Commission of April 14,1970 contains, among other things, a notation as follows:\\n\\\"On the Juanita Spence appeal, Commission deferred pending disposition of injunction in Chancery Court. ' '\\nY.\\nFINAL DECREE\\nAfter a hearing, Chancellor Adams entered a Final Decree which recites:\\n\\\"This cause came on to be heard on the 28th day of May, 1970, before the Honorable Alfred T. Adams, Chancellor, holding Part 2 of the Chancery Court at Nashville upon the complainant's original bill for a writ of mandamus as amended, the complainant's amended and supplemental bill for a mandamus, the answer of all the def\\u00e9ndants to the complainant's original bill as amended and to her amended and supplemental bill, the oral testimony of witnesses, evidence introduced in open court, the argument of the solicitors for all parties and the entire record in this cause.\\nFrom all of which it appears to the Court that the allegations of the complainant's original bill as amended and the amended and supplemental bill are sustained by the proof in this cause; and that the complainant was not given a hearing prior to her dismissal as an employee of the Metropolitan Government as is required by Section 6 of Chapter 9 of the Rules and Regulations of the Civil Service Commission of the Metropolitan Government and her dismissal was, therefore, illegal; and that the Civil Service Commission of the Metropolitan Government deferred action on hearing the complainant's appeal for an inexcusably unreasonable time; and that the said Civil Service Commission should have sustained her appeal for failure of the disciplinary authority to hold the required departmental hearing and also his failure to prosecute the case by filing charges within a reasonable time; and that, having exhausted her administrative remedies, the complainant is entitled to a writ of mandamus to compel the defendants to reinstate her in her position of Senior Clerk in the classified service of the Metropolitan Government of Nashville and Davidson County in paygrade 17 with a monthly pay rate of $454; and that the complainant is entitled to recover from the defendant, The Metropolitan Government of Nashville and Davidson County, a sum of money equal to her net loss of earnings from October 15,1969 until the date of her reinstatement on the Metropolitan Government's payroll;\\\"\\nThe decree then orders the issuance of a peremptory-writ of mandamus requiring defendants to reinstate complainant and awarding judgment against the Metro Government for a sum equal to her net loss of earnings as a result of her dismissal, and the Master is directed to hear proof to arrive at this sum. The interlocutory injunction previously issued, enjoining the Civil Service Commission from hearing and acting on the pending appeal of complainant, is made permanent and the costs are assessed against the defendant Metro Government.\\nVI.\\nCHARTER PROVISIONS AND CIVIL SERVICE COMMISSION RULES\\nExhibit No. 12, entitled \\\"Metropolitan Government of Nashville and Davidson County \\u2014 Civil Service Commission Rules and Regulations\\\", contains provisions of the Charter of the Metropolitan Government of Nashville and Davidson County and Civil Service Commission Rules and Regulations which are pertinent to the issues in this case. Among them are provisions as follows:\\nUnder Article 12 \\u2014 Civil Service \\u2014 Section 12.03, \\\"Duties\\\", we find the following:\\n\\\"In addition to other duties herein specified, it shall be the duty of the Civil Service Commission to:\\n(e) Upon request of an affected employee, review suspensions, demotions or separations from service of any employee in classified service, and to render decisions thereon, subject to its rules. ' '\\nUnder Section 12.05, \\\"Selection and dismissal of Metropolitan employees; limitation on number of positions held\\\", is the following provision:\\n\\\"No employee in the classified service may be terminated from the service except for cause. Any employee dismissed from the classified service or suspended, by his simple written request to the Commission, shall have the action reviewed by the Commission. If the Commission does not approve the action, it may modify or reverse it, and provide whatever recompense is indicated, which shall not exceed net loss of earnings. In a review by the Commission of any disciplinary action, the disciplinary authority shall bear the burden of proof of just cause for discipline.\\\"\\nUnder Section 12.07, \\\"Substantive content of rules of the commission\\\", is the following:\\n(h) The disciplinary action withm the- classified service. Rules with respect to such action shall provide that when an employee requests a review of disciplinary action taken against him, as provided in Section 12.05 above, such employee shall be furnished a copy of the basis of his discipline not less than fifteen days prior to such hearing, and said rules may provide for the amendment of grounds for discipline upon reasonable notice to the employee.\\nIt shall be mandatory that the rules provide that the judgment and findings of the commission on all questions of fact, in the hearing of charges preferred against any classified employee under the provisions of this article, shall be final and shall be subject to review only for illegality or want of jurisdiction, excepting only cases where classified employees have been dismissed from the service by judgment of the commission, in which case such dismissed employee may prepare and file the record of the proceedings, including a transcript certified by the chairman of said commission, in the Circuit and Chancery Courts of Davidson County, where the case may be heard de novo solely upon the record so certified; provided, that such transcript must be presented to and signed by the chairman of the commission within thirty (30) days after the commission shall have announced its findings, and provided that an extension of time may be granted for this purpose not to exceed thirty (30) days. Any person, other than a member of the commission, may file and prefer charges against any classified employee.\\nRules of the commission when adopted as provided herein shall have the full force and effect of law. ' '\\nUnder Chapter 9 of the Civil Service Commission Rules and Regulations, Section 1 deals with Employee Conduct. Section 2 is entitled \\\"Employee Working Relationships\\\", wherein it is provided:\\n\\\"When work habits, attitude, production, or personal conduct of an employee falls below a desirable standard, supervisors should point out the deficiency at the time it is observed. Warning in sufficient time for improvement should precede formal disciplinary action, but nothing in this section shall prevent immediate formal action whenever the interest of Metropolitan Government requires it.\\\" [Emphasis supplied]\\nSection 6 is entitled \\\"Disciplinary Action\\\" and provides that:\\n\\\"Ah employee may be disciplined for just cause for such actions as wilful neglect of duty, dishonesty, insubordination, discourteous treatment of the public, # conduct below the standard of his department, or any other failure of good behavior which reflects discredit upon himself, his department, and/or the Metropolitan Government.\\\"\\nThen we find this provision:\\n\\\"Any employee who has been disciplined as provided for in Sections 8, 9, and 10 is entitled to a prompt hearing by his Department or Division Head, unless the employee specifically waives it m writing. In such cases, a copy of such waiver shall be forwarded to the Civil Service Commission. [Emphasis supplied]\\nThe purpose of said hearing is to insure that the employee's side of the incident is fully presented. The employee shall be furnished a copy of the basis of his discipline by his Department Head prior to the above mentioned hearing.\\n# # * # # #\\nThe Department or Division Head shall see that notes of the hearing are kept and the official action taken should be noted and the Civil Service Commission notified. Evidence or proof of the charges need not be presented in evidence at the departmental hearing. Appeal from the decision of the Department or Division Head shall be de novo before the Civil Service Commission.\\\"\\nSection 10' is entitled \\\"Dismissal\\\" and provides as follows:\\n\\\"A Department Head may dismiss an employee for just cause, as defined in Section 6 of this Chapter, provided any disciplinary action taken by the Department Head which is reviewable by the Commission must be supported by evidence strong enough to bear the burden of proof of just cause for such disciplinary action.\\nThe employee must be advised in writing of his appeal rights and the procedure to follow if he desires to appeal.\\\"\\nSection 11, entitled \\\"Appeal Procedure\\\", provides that an employee reprimanded, suspended, or dismissed from the classified service may, by his simple written request to the Civil Service Commission have the action reviewed by them. Said request must be made within thirty days after notification by the Department Head of said disciplinary action and it provides also that, after a request for a review by the Civil Service Commission, the employee shall be furnished a copy of the basis of his discipline not less than fifteen days prior to the hearing before the Commission.\\nIt is further provided that the judgment and findings of the Commission on all question of fact shall be final and subject to review only for illegality or want of jurisdiction, except where such employee has been .dismissed by the judgment of the Commission, in which case a transcript shall be certified by the Chairman of the Commission to the Circuit or Chancery Court where the case will be heard de novo \\\"solely upon the record so certified\\\".\\nVIL\\nOUR CONCLUSIONS\\nIt is insisted by the appellants that Assignment No. 1 should be sustained because complainant's appeal is in violation of 27-914, T.C.A., which provides that judicial review of proceedings before a Municipal or County official or Board affecting the Civil Service status of a Municipal or County employee is restricted to common law certiorari.\\nWhile it is true that said statute provides that no court of record shall entertain any proceeding involving the Civil Service status of a County or Municipal employee when such proceeding is in the nature of an appeal from a ruling of a City or County Official or Board which' affects the employment status of said employee, \\\"except such proceeding be one of common law certiorari\\\", it has been held by the Appellate Courts of Tennessee that mandamus will lie to compel reinstatement of a Civil Service employee of a City who had been summarily dismissed without any charges being preferred, or any hearing granted, on the theory that the position of said employee had been abolished. State ex rel. Paylor v. City of Knoxville et al., 195 Tenn. 318, 259 S.W.2d 537.\\nIn the instant case, it was found by the Chancellor, that there was an inordinate delay on the part of the Department Head who dismissed complainant in filing with the Civil Service Commission the charges against the employee upon which the dismissal was based.\\nAs is seen clearly from the record, there was also, in the words of the Chancellor, an inexcusably unreasonable delay in granting a hearing before the Civil Service Commission of the charges against complainant which delay was occasioned in part by the failure of the Department Head to file charges with the Commission.\\nIt appears that, when this bill was filed, there was no record of any hearing to be reviewed on petition for certiorari. Thus, we are persuaded to believe that the bill for mandamus was properly filed and that it presented a cause of action within the jurisdiction of the Chancery Court.\\nOn the other hand, we cannot agree with the Chancellor's decree wherein it is held, \\\"That the complainant was not given a hearing prior to her dismissal as an employee of the Metropolitan Government as is required by Section 6 of Chapter 9 of the Rules and Regulations of the Civil Service Commission of the Metropolitan Government, and her dismissal was, therefore, illegal.\\\"\\nAn examination of the quoted sections of the Charter and Civil Service Commission Rules herein-above, does not support the proposition that the disciplinary action taken against the complainant was illegal and void for failure to grant a hearing prior to the action taken.\\nIn Chapter 9', Section 2, it is stated:\\n\\\" but nothing in this section shall prevent immediate formal action whenever the interest of Metropolitan Government requires it.\\\"\\nAnd, under Section 6, \\\"Disciplinary Action\\\", it is to be noted that the provision is:\\n\\\"Any employee ivho has been disciplined as provided for in Sections 8, 9,, and 10 is entitled to a prompt hearing by his Department or Division Head, unless the employee specifically waives it in writing. ' ' [JEmphasis ours]\\nThe foregoing provision seems clearly to imply that a prompt hearing by the Department or Division Head is to be accorded after the disciplinary action is taken so that the employee's side of the incident may be fully presented. And it is to be noted that disciplinary action under the Charter and Commission Eules includes dismissal. (Chap. 9, Sec. 6)\\nMr. Charles Griffith, Metro Director of Law, testified that the general practice in the several departments of the Metro Government is to have a hearing after the disciplinary action has been taken respecting classified employees, citing instances in the Police and other departments.\\nIt is also provided that the Department or Division Head shall see that notes of the hearing are kept and the Civil Service Commission notified of the action taken.\\nIn Section 10 it is provided that:\\n\\\"A Department Head may dismiss an employee for just canse, as defined in Section 6 of this Chapter, provided any disciplinary action taken by the Department Head which is reviewahle by the Commission must be supported by evidence strong enough to bear the burden of proof of just cause for such disciplinary action,\\\"\\nand the employee must be advised in writing of Ids appeal rights.\\nThe foregoing was complied with but only after an unreasonable lapse of time.\\nAs is seen hereinabove under Section 11, \\\"Appeal Procedure\\\", the provisions are for an appeal to the Civil Service Commission from the action of a Department Head upon a simple request in writing of the employee who has been disciplined.\\nWe, therefore, conclude that, upon the filing of the petition herein, the proper procedure would have been to issue an Alternative Writ of Mandamus requiring the Department Head to promptly file with the Civil Service Commission the charges upon which his action in dismissing the employee was based, with due notice to the dismissed employee of the filing of said charges and the content thereof, and to show cause why a Peremptory Writ should not issue.\\nHowever, in the course of the proceedings herein, the charges were filed with the Commission and are made a part of the record herein, hence, at the time of the Final Decree of the Chancellor, there was no necessity for such an order on the Department Head.\\nSaid charges having been filed, we think it was error for the Chancellor to refuse to dissolve the injunction which he had previously granted restraining the Commission from conducting a hearing on the charges against complainant.\\nThe record discloses that, before the Final Decree, the charges had been filed, as hereinabove stated, and counsel for the Commission represented to the Court that the Commissi on stood ready to conduct the hearing on said charges, provided the Chancellor would dissolve the injunction which restrained them from conducting such hearing.\\nIt is our conclusion that, in view of the inordinate delay in conducting a hearing, which delay occurred before the Chancellor's injunction restraining the Commission from holding a hearing, a peremptory writ of mandamus would have been proper directing the Commission to promptly hear and dispose of the charges against complainant, whereupon, her right to a review would have been by certiorari under the statute.\\nWe call attention to Wallace v. Neal, 191 Tenn. 240, 232 S.W.2d 49, wherein the Opinion by Mr. Chief Justice Neil points out that the Civil Service Act authorizing an appeal to the Civil Service Commission from dismissal of regular Civil Service employees of Nashville created a new right unknown to common law and prescribed an exclusive remedy for all Civil Service employees adversely affected by the rulings of Department Heads. In the Opinion it was said that the Supreme Court must so construe the Civil Service Act as to carry out the purpose for which it was enacted.\\nIn State ex rel. Jones v. City of Nashville et al, 198 Tenn. 280, 379 S.W.2d 267, it was held that Civil Service employees who are laid off must exhaust their administrative remedies before resorting to the Courts for restoration to their positions, unless exhaustion of such remedies would he absolutely futile. It was further said that, the mere fact that administrative authorities would probably deny relief, was to excuse for failure to exhaust administrative remedies before resorting to Courts.\\nIn City of Nashville v. Martin, 156 Tenn. 443, 3 S.W.2d 164, it was said:\\n\\\"A petition seeking to re-open in the Circuit Court a question of fact, petitioner's guilt or innocence of charges preferred against him before a Civil Service Board do not present a justiciable controversy to that Court, the Act creating the said Board mailing final its judgment on all questions of fact on the trial of the charges preferred against the petitioner. ' '\\nIn view of the facts and circumstances revealed by this record, we think the Chancellor would have been justified in issuing a peremptory writ of mandamus directing the Civil Service Commission to promptly hear and dispose of the charges filed against the complainant in spite of the fact that some show of willingness to proceed with a hearing was made by counsel for the Commission. But we deem it error to take the case away from the Commission and order a restoration of complainant to her former position without a hearing before the Commission, thus avoiding the regular process by which an employee's rights are exclusively protected, and relieving her of the necessity to pursue her administrative remedies to a conclusion.\\nIt results that the judgment of the Chancellor is reversed and the injunction heretofore issued is dismissed, but a writ requiring the prompt hearing of complainant's case by the Civil Service Commission of Metropolitan Government of Nashville and Davidson County will issue with instructions to consider reimbursement to complainant for salary lost by her from the date of her dismissal to the time she obtained an injunction restraining the Commission from hearing the case, in as much as the filing of charges appear to have been inexcusably delayed. The cause will be remanded to Part II of the Chancery Court of Davidson County for such future orders as may become necessary and proper in the premises.\\nThe costs of the cause are taxed against Metropolitan Government of Nashville and Davidson County.\\nReversed and remanded.\\nPuryear and Todd, JJ., concur.\"}"

tenn/8509323.json

@@ -0,0 +1 @@
+"{\"id\": \"8509323\", \"name\": \"Bessie Farrow, Appellant-Petitioner, v. James Hopkins dba et al., Appellee-Defendant\", \"name_abbreviation\": \"Farrow v. Hopkins\", \"decision_date\": \"1970-03-02\", \"docket_number\": \"\", \"first_page\": \"275\", \"last_page\": \"283\", \"citations\": \"224 Tenn. 275\", \"volume\": \"224\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-11T00:59:51.739101+00:00\", \"provenance\": \"CAP\", \"judges\": \"Dyer, Chief Justice, Creson, and McCanless, Justices, and Bozeman, Special Justice, concur.\", \"parties\": \"Bessie Farrow, Appellant-Petitioner, v. James Hopkins dba et al., Appellee-Defendant.\", \"head_matter\": \"Bessie Farrow, Appellant-Petitioner, v. James Hopkins dba et al., Appellee-Defendant.\\n453 S.W.2d 785.\\n(Jackson,\\nApril Term, 1969.)\\nOpinion filed March 2, 1970.\\nIra H. Murphy, Memphis, for appellant.\\nRobert M. Fargarson, Neely, Green & Fargarson, Memphis, of counsel, for appellee.\", \"word_count\": \"2151\", \"char_count\": \"12358\", \"text\": \"Mr. Special Justice Jenkins\\ndelivered the opinion of the Court.\\nThis is a workmen's compensation case which was brought in the Chancery Court of Shelby County, Tennessee, by Bessie Farrow, as complainant or petitioner against the defendants, James Hopkins d/b/a Hopkins Garage, and United States Fidelity & Guaranty Company.\\nThe petitioner who was the widow of the deceased employee, Tommy Farrow, the appellant here, sued to obtain death benefits under the Workmen's Compensation Act.\\nThe defendant employer, while admitting that Bessie Farrow was the widow of Tommy Farrow, the deceased employee, denied that she was entitled to such benefits under the said Act because she was voluntarily living apart from her husband at the time of his death, and was not dependent upon him for support.\\nThat part of the Workmen's Compensation Act under which the widow claims benefits is T.C.A. Section 50-1013,\\n\\\"Dependents \\u2014 Compensation Payments. \\u2014 (a) Persons wholly dependent. For the purposes of the Workmen's Compensation Law the following described persons shall he conclusively presumed to be wholly dependent: (1) A wife, unless it be shown that she was voluntarily living apart from her husband at the time of his injury, and minor children under the age of sixteen (16) years.\\\"\\nThe Chancellor after hearing the proof in the case held that the widow, Bessie Farrow, was not entitled to benefits as the dependent widow of the deceased under the Workmen's Compensation Act and dismissed her petition and from this decision the widow has appealed to this Court.\\nThe question before the Court is whether or not the petitioner, Bessie Farrow, was the dependent widow of the deceased employee, Tommy Farrow, or was she voluntarily living apart from the worker at the time of his death and not dependent upon him, for support.\\nBessie Farrow and Tommy Farrow were married on June 8,1935. The record is cloudy as to exactly why and when the parties separated, but the separation occurred sometime after the employee returned from the Army in 1943. They had no children. They never lived together after they separated and apparently had no contact with each other, physical or otherwise.\\nThe employee, Tommy Farrow, was killed while working on the job for the employer on April 17, 1967.\\nAt the time of his death, Tommy Farrow was living with one Lillie Mae Farrow as man and wife, with whom he had lived for more than twenty years without the formality or benefit of a divorce or the ceremony of marriage. Seemingly, they agreed in the old proverb that \\\"With marriage begins the sunset of love.\\\"\\nWhen Lillie Mae and the deceased started living together the employee had separated from the widow-petitioner, and at one time had dated a girl by the name of Lizzie Mae Hogg, a married woman, bnt this was apparently a passing fancy, because when he started living with Lillie Mae it was for good. He was a one-woman man.\\nHe did not know Lillie Mae until after he and Bessie parted. The first time Lillie Mae ever saw Tommy Farrow was \\\"in town\\\" shortly after his return from the war \\\"with his soldier suit on.\\\"\\nThey went together for awhile and then set up housekeeping in Covington \\\"in a place called Black Bottom\\\" and held themselves out to the public as man and wife, and were living as man and wife when as Lillie Mae testified \\\"he passed.\\\" The employee had reached that enviable estate in life where he was king of his household. \\\"He is the happiest, be he king or peasant, who finds peace in bis home.\\\" Lillie Mae testified, that she always \\\"let the man do the thinking,\\\" and deferred to his judgment in all matters.\\nAfter Tommy and Bessie separated, he had lived with an Aunt Mattie before taking up residence with Lillie Mae, and Bessie Farrow, the petitioner knew of her husband living with Lillie Mae as man and wife. Bessie never complained and never sought a divorce or asked bim for support. Both she and the deceased did not need a divorce for they got along pretty well without one.\\nShortly before or after Bessie and Tommy separated Bessie, according to testimony of Lillie Mae, had a baby by one Clive Jones. She denied this, but in January of 1945, Bessie Farrow was visited with a blessed event, giving birth to a boy child, Lawrence Culbreath. She made no claim that the child belonged to Tommy, but said that it belonged to \\\"a friend,\\\" Emmett Culbreath. The petitioner apparently limited her favors to \\\"friends.\\\"\\nFrom 1960 to 1966, the petitioner went by the name of Bessie Cannon, living in the home of Joe Cannon and helping look after Cannon's mother who died in 1962. She lived on in the home of Joe Cannon for four years after his mother's death, went by his name, but testified that it was not what it looked like; that she was not living with him as man and wife. This statement is subject to question, the Court still having a keen and vivid imagination where the facts of life are concerned.\\nBe that as it may, the petitioner never at any time claimed support or was supported by the deceased employee. They had gone their separate ways and so far as the record reveals were both happy.\\nAt the time of the filing of the suit the widow was living in Memphis under her maiden name, Bessie Smith. It seems she changed names easily, and it is significant that she rarely, if ever, used the name Farrow other than in bringing this lawsuit.\\nThe widow-petitioner testified that she was willing to forgive the deceased Farrow for his transgressions and take him back. \\\"We do not think she was in any position, in view of her conduct, to stand in the shoes of a \\\"forgiver.\\\"\\nThe petitioner relies heavily on the case of Cole v. Bemis Brothers Bag Company, 215 Tenn. 259, 385 S.W.2d 103, decided by the late Justice Weldon White, a great humanitarian and a keen student of human nature whose decisions will long stand as a monument to Ms service on tMs Court. However, the facts decided by Justice White in the case above are not analogous to the present case. In that case, the widow and the worker were still on \\\"praying grounds and pleading terms,\\\" whereas in the case at Bar love had perished, never to blo'om again and not a spark remained on which to rekindle the lost flame. They .had both basked in the smiles of others and enjoyed their favors.\\nIn the Cole case, supra, the petitioner, as women ofttimes will, became jealous of a Louise Bell, and at times became quarrelsome and even downright truculent, and left her husband and moved to Jackson, Tennessee. Strange to say, in that case the dispute about Louise Bell was the only trouble they had ever had. She just did not like Louise. But the spark of love between them had not died. They would visit together in their respective homes, sleep together, and discussed reconciliation from time to-time, even as recent as three weeks before Ms death. The complainant, in that case, would not live in the same com-muMty with Louise Bell, for \\\"foul whisperings are abroad.\\\" The Chancellor and the Supreme Court held that she had \\\"grounds\\\" for not returning to live with him and that she was not voluntarily living apart at the time of his death. There is no suggestion of any misconduct on the part of the widow in that case.\\nThe petitioner also- relies on Partee v. Memphis Concrete Pipe Co., 155 Tenn. 441, 295 S.W. 68, decided by this Court in December of 1926. In the Partee case, the husband and wife had what she called a \\\"little squabble\\\" because of some gossip she had heard about Mm. She testified \\\"I got after him about it, and he got mad, and that is what the little squabble between him and I came up about.\\\" They would have a little \\\"squabble\\\" from time to time, and her husband would leave and come back, for the widow testified \\\"I never bad any dreams of him going away from me to never come back. When he left there, he was no more mad at me than nothing in the world # . And he says, 'Well, I am going, beings that you will just listen to what my folks say.' He says, 'I am going/ He says, 'You will miss me when I am gone/ I said, 'Yes, I am satisfied I will miss you when you are gone/ I said, 'Arthur, there is no need your acting like this/ And he said, 'Well, I am going/ \\\" And he went. The gossip some perhaps unfounded, was real to her, for \\\"Trifles light as air are, to the jealous, confirmations strong as proofs of holy writ.\\\"\\nThe Supreme Court in that case held that \\\"The petitioner did not desert her husband, and committed no act to justify his desertion of her. She remained at home, expecting him to return, and willing for him to do so. She could have enforced the wife's claim to support, because the legal and moral obligation rested upon him.\\\"\\nThe employer relies on Wright et al. v. Armstrong et al., 179 Tenn. 134, 163 S.W.2d 78. In this case the widow sued for compensation under the Workmen's Compensation Act. She and her husband had separated but she had entered into a second marriage which was without the benefit of divorce, said marriage of course being bigamous, and testified that while she knew she was not divorced from Arthur Armstrong, her husband, that she married this second man, \\\"because I needed somebody to kind of help me support myself. I just got tired of working.\\\" The Supreme Court held in this case as follows: \\\"Under these uncontroverted facts was petitioner voluntarily living apart from her husband at the time of his death? We think she was. the fact is uncontro-verted that she wilfully entered into' the bigamous marriage with Frank Gray in 1935, lived with and was supported by him until the death of her husband and was still living with him at the time of the trial of this case and during all that time she made no effort to return to Arthur Armstrong. Regardless of the cause of her separation from Arthur Armstrong she was certainly living apart from him voluntarily 'at the time of his injury' and there is no evidence to the contrary. Melvina Armstrong cannot recover for herself.\\\"\\nWe think that the Wright case, supra, is controlling in this case. We do not believe that the deceased, Tommy Farrow, was the cause of the separation of the parties, but assuming for the sake of argument that the deceased caused the separation, petitioner quickly found solace for her sorrows with another or others.\\nAs a matter of fact, each party found happiness with others and had apparently forgotten their marriage vows with all the obligations thereof. The deceased did not support the wife. She asked no1 support nor expected any. The separation was over a long period of time. They saw each other occasionally but never discussed the separation or a reconciliation, and we agree with the learned Chancellor that when Bessie testified that she was willing to resume the relationship' with her husband and was not living apart voluntarily, as expressed in his opinion, \\\"We can't accept that theory. I cannot conceive of individuals who can live separate and apart for some 20' or more years, and whether it be voluntary or involuntary at its commencement, certainly thereafter, there can develop a situation whereby sheer acquiescence alone can become of the nature and character of being voluntary . One of the definitions, I would say, of voluntary is willingness, willing, or act of the will. And surely, in this case, the relationship \\u2014 the separation of the parties was a willing act on their part. He was living with Lillie Mae, and she was living with her mother. ' '\\nWe, therefore, agree with the Chancellor that the petitioner-widow is not entitled to workmen's compensation. There is no need to deal with the \\\"material evidence\\\" rule to support the finding of the Chancery Court in this case for the evidence shows conclusively that the widow was living voluntarily separate and apart from her husband, the deceased, and was not being supported by him, and we theref ore affirm the ruling of the Chancellor, and the costs of the cause are taxed against the petitioner, Bessie Farrow, and the sureties on her bond.\\nDyer, Chief Justice, Creson, and McCanless, Justices, and Bozeman, Special Justice, concur.\"}"

tenn/8509368.json

@@ -0,0 +1 @@
+"{\"id\": \"8509368\", \"name\": \"Bernard W. Swain, alias Bishop St. Psalm, Plaintiff in Error, v. State of Tennessee, Defendant in Error\", \"name_abbreviation\": \"Swain v. State\", \"decision_date\": \"1966-10-07\", \"docket_number\": \"\", \"first_page\": \"145\", \"last_page\": \"155\", \"citations\": \"219 Tenn. 145\", \"volume\": \"219\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T18:00:10.516475+00:00\", \"provenance\": \"CAP\", \"judges\": \"BurNett, Chiee Justice, Dyer and ChattiN, Justices, and HarbisoN, Special Justice, concur.\", \"parties\": \"Bernard W. Swain, alias Bishop St. Psalm, Plaintiff in Error, v. State of Tennessee, Defendant in Error.\", \"head_matter\": \"Bernard W. Swain, alias Bishop St. Psalm, Plaintiff in Error, v. State of Tennessee, Defendant in Error.\\n407 S.W.2d 452.\\n(Nashville,\\nDecember Term, 1965.)\\nOpinion filed October 7, 1966.\\nJames T. HavroN, Nashville, for plaintiff in error.\\nGeorge F. McCaNless, Attorney General, Edgar P. CalhoitN, Assistant Attorney General, and Harry G. Nichol, District Attorney General, Nashville, prosecuted case for State in trial court.\", \"word_count\": \"2196\", \"char_count\": \"13155\", \"text\": \"Mr. Justice CresoN\\ndelivered the opinion of the Court.\\nThis appeal comes from the Criminal Court of Davidson County, Tennessee. The parties will be referred to herein as they appeared in the trial court; that is, Bernard W. Swain, alias Bishop St. Psalm, plaintiff in error, as defendant, and defendant in error as the State.\\nAt the January, 1964 Term of Criminal Court of Davidson County, Tennessee, the defendant was charged by presentment with the violation of T.C.A. seo. 39-4301, which reads in pertinent part, as follows:\\n\\\"Threats for purpose of extortion or obtaining action \\u2014Penalty.\\u2014If any person, either verbally or by written or printed communication, maliciously threaten to do any injury to the person, reputation of property of another, with intent thereby to extort any money, property, or pecuniary advantage whatever, or to compel the person so threatened to do any act against his will, he shall, on conviction, be punished by imprisonment in the penitentiary not less than two (2) years nor more than five (5) years.\\\"\\nThe presentment charged that the defendant had threatened to do injury to the business of one Johnny Beazley, owner and operator of Johnny Beazley's Falstaff Distributing Company, by instituting a boycott among the colored members of the community, and that defendant received from the aforementioned Mr. Beazley the sum of $3,000.00, in cash, and a check for $1,200.00, supposedly for advertising in a publication owned, published and distributed by the defendant, and known as \\\"The Epic\\\", in order to end the boycott. The boycott, it is charged, was instituted under the guise of an organization called \\\"The Nashville Business Men Association\\\", of which the defendant was President and Chairman. The defendant pleaded not gnilty to the charge against him.\\nOn November 15,1965, the defendant filed a motion for a change of venue. On November 17, 1965, the defendant's motion for change of venue was overruled, to which action defendant's counsel excepted. On November 18, 1965, the defendant was brought to trial for the crime charged in the previously mentioned presentment. On November 19, 1965, the jury returned a verdict finding- the defendant guilty of extortion, in violation of T.O.A. see. 39-4301, and fixed the defendant's punishment at a period of not more than four years. On that same date, the trial judge entered a judgment in accord with the jury's verdict, and sentenced the defendant to not more than four years nor less than two years in the State Penitentiary. On December 20, 1965, the defendant filed a motion for new trial, which was amended on January 14, 1966. The motion for new trial was subsequently overruled. Appeal has been timely perfected to this Court.\\nDefendant's first three assignments of error in this Court urge that the evidence preponderates against the jury's verdict of guilty. In order to give due consideration to these assignments of error, it is necessary to briefly summarize the evidence contained in the Bill of Exceptions filed in this Court. The main witness for the State, Mr. Johnny Beazley, testified that on or about January 2, 1964, the defendant visited his office and demanded that Mr. Beazley hire three additional Negro salesmen. Mr. Beazley objected, on the grounds that he could not hire any more employees unless he fired others to make room for them, and that, at that time, about fifty per cent of his employees were Negroes. The defendant, at that time, threatened Mr. Beazley, that \\\"This is war\\\". On or about the following Monday, Mr. Beazley learned from some of his salesmen that a boycott against his business was being conducted by Negro retailers in the Nashville area, and that certain handbills were being distributed urging these retailers to refuse to buy or sell Palstaff Beer until Mr. Beazley hired more Negro salesmen. These handbills purported to be published by The Nashville Business Men Association and stated that, for further information, one should call Epic magazine. Mr. Beazley further testified that at about 5:00 P.M. that same day, he received a telephone call from the defendant, who asked him to meet the defendant at Price's Dinner Club, if he would like to stop the boycott. Mr. Beazley went to the aforementioned Dinner Club, where he was met by the defendant and Mr. Price, and was frisked by the defendant in order to ascertain whether or not Mr. Beazley had a tape recorder. Thereafter, discussion took place during which Mr. Beazley agreed to hire one additional Negro salesman and, after the defendant's statement that he had incurred a tremendous expense in the boyoctt, Mr. Beazley offered to pay $300.00 or $400.00 to cover it. To this the defendant, according to Mr. Beazley's testimony, replied that it would take at least $3,000.00 to cover his expenses, and suggested that Mr. Beazley take additional advertising-in Epic magazine; that this advertising would cost $300.00 a month and that a prepayment of four months would be required. After Mr. Beazley agreed to this, the defendant instructed Mr. Beazley to accompany him to a meeting of The Nashville Business Men Association, but assured Mr. Beazley that this was a mere formality. Mr. Beazley testified that prior to this, he had paid only $81.50 a month for a half-page of advertising in defendant's magazine. Mr. Beazley further testified that the defendant insisted that he pay him the $3,000.00 in cash, rather than by check. This testimony of Mr. Beazley is corroborated to a large extent by the testimony of his employee, Mr. Sbuttoni, and a Miss Helen Sykes.\\nThe defendant, himself, did not testify, but several Negro businessmen did testify. From their testimony, it is apparent that The Nashville Business Men Association had not actually met prior to the boycott, and that several of them did not even know of the boycott until they were invited to the meeting Mr. Beazley attended the night after it had begun. All of these Negro business leaders testified, emphatically, that they had received none of the $3,000.00 paid by Mr. Beazley, nor did they know anything of the $3,000.00 paid by Mr. Beazley.\\nFrom this evidence, contained in the Bill of Exceptions, it becomes apparent that there is no merit in these first three assignments of error for clearly the evidence adduced at the trial supports the verdict of the jury, and certainly cannot be said to preponderate against it.\\nDefendant's fourth assignment of error urges that the trial court erred in overruling his motion for a change of venue. T.C.A. see. 40-2201 and cases cited thereunder establish, beyond doubt, that the question of change of venue is one largely within the discretion of the trial judge and there must be a clear abuse of this discretion for this Court to reverse his action. See King v. State (1892) 91 Tenn. 617, 20 S.W. 169. After careful consideration of all the material contained in this record concerning defendant's motion for a change of venue, this Court had reached the conclusion that the trial judge did not abuse his discretion in refusing to sustain defendant's motion.\\nDefendant's fifth assignment of error argues that the trial court erred in refusing to discharge for cause a William J. Wallace from the jury panel. Suffice it to say in answer to this assignment of error, that the defendant exercised one of his peremptory challenges to excuse Mr. Wallace from tlxe panel. This being the case, see Long v. State (1948) 187 Tenn. 139, 213 S.W.2d 37.\\nDefendant's assignments of error 6 and 7 urge that the trial court erred in overruling defendant's motion for a new trial on the ground that the trial court failed to discharge the entire jury panel because it was shown that the jurors had read and/or discussed a newspaper article regarding previous convictions of the defendant and details of the case on trial. From a careful reading of the voir dire this Court fails to find any evidence that any substantial number of jurors read the newspaper article, or that there was any discussion of the newspaper article. As was pointed out by the trial judge, the fact that this newspaper was found in the assembly room would seem to be irrelevant, for any of the jurors could have read the article in their morning newspaper at home. All of the jurors testified, under oath, under rigorous examination by the defendant's attorney, that they could, and would, render a fair and impartial verdict on the facts presented in the trial of this case; and specifically said that they had not previously formed opinion as to the guilt or innocence of the defendant. See Dupes v. State (1962) 209 Tenn. 506, 354 S.W.2d 453, where the following is said:\\n\\\"We think this ruling was correct. The fact that a prospective juror has read about a case in a newspaper or heard some person mention it, is not sufficient to disqualify him if he is otherwise qualified and if he states on oath that, notwithstanding what he read or heard, he believes he can give the defendant a fair and impartial trial upon the law and the evidence. Manning v. State, 155 Tenn. 266, 277, 292 S.W.451; O'Brien v. State, 205 Tenn. 405, 420-421, 326 S.W.2d 759; Smith v. State, 205 Tenn. 502, 533, 327 S.W.2d 308.\\\"\\nDefendant's assignment of error 8 urges that the trial court erred in allowing the charter of The Nashville Business Men Association to be introduced into evidence by Mr. Beazley. Since this was a certified copy of the charter of this corporation, its admission seems to be proper under T.C.A. sec. 48-115. It is pertinent here to note that the tenor of defendant Swain's defense was that the action here involved was that of this association. The purpose of this evidence was to demonstrate such body was not in formal existence at the time. However, even if this were not the case, the admission of this evidence would not constitute reversible error. Several members of the organization testified, on cross-examination, as to the date of incorporation and as to the fact that this was after the boycott here involved. This is the purpose indicated by the record for the admission of the charter. We think it proper; however, its introduction, if erroneous, would constitute, at most, harmless error.\\nDefendant's assignment of error 9 objects to the introduction into evidence of several copies of Epic magazine by Police Sergeant Harold Woods. This is said to be error because no sufficient groundwork was laid to permit the introduction of those documents by that witness. The handbills passed out to implement the boycott of Mr. Beazley's business by the Negro community specifically refer such community for detailed information to the Epic magazine. The record leaves no doubt but that the publisher thereof was the defendant Swain. It was shown that Sergeant Woods was familiar with these publications and was aware of the fact that the defendant was the publisher of these magazines. We see-no error in the introduction of these magazines by Sergeant Woods.\\nDefendant's assignment of error 10 urges that the trial court erred in allowing defendant's witness, John Driver, to testify as to a telephone conversation he had with Mr. Beazley. It is alleged that this is error because this testimony constituted hearsay. This is an erroneous conception. As stated in the brief of defendant, and as is quite apparent from the record, those so-called members of the association were acting in concert. It is evident from reading the record that this testimony of Driver, as to his telephone conversation with Mr. Beazley, was not taken to prove the truth or falsity of any statements made by Mr. Beazley, but merely to illustrate that Mr. Driver, a member of The Nashville Business Men Association, was not aware that any money was being paid by Mr. Beazley to anyone. Mr. Beazley had already testified as to the fact that he had paid this money to- the defendant. Thus, this evidence does not fall within the hearsay rule. See Letellier-Phllips Paper Co. et al. v. Fiedler et al. (1949) 32 Tenn.App. 137, 222 S.W.2d 42.\\nIn the brief, much emphasis was placed upon the idea that the contacting of Beazley by the defendant Swain was motivated solely by his zeal to see that additional Negroes were employed. Upon a close reading of this record, it is abundantly clear that this portion of defendant's activity constitutes no more nor less than a thinly veiled effort to erect a facade of legality to cover or obscure his true and sinister intent and purpose to extort.\\nThis Court, finding no merit in defendant's assignments of error, affirms the judgment of the trial court. The costs of this appeal are assessed against the plaintiff in error.\\nBurNett, Chiee Justice, Dyer and ChattiN, Justices, and HarbisoN, Special Justice, concur.\"}"

tenn/8510492.json

@@ -0,0 +1 @@
+"{\"id\": \"8510492\", \"name\": \"MARYLAND CASUALTY CO. v. F. B. HUNTER & CO\", \"name_abbreviation\": \"Maryland Casualty Co. v. F. B. Hunter & Co.\", \"decision_date\": \"1928-07-31\", \"docket_number\": \"\", \"first_page\": \"516\", \"last_page\": \"524\", \"citations\": \"8 Tenn. App. 516\", \"volume\": \"8\", \"reporter\": \"Tennessee Appeals Reports\", \"court\": \"Tennessee Court of Appeals\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T17:15:11.634087+00:00\", \"provenance\": \"CAP\", \"judges\": \"Owen and Senter, JJ., concur.\", \"parties\": \"MARYLAND CASUALTY CO. v. F. B. HUNTER & CO.\", \"head_matter\": \"MARYLAND CASUALTY CO. v. F. B. HUNTER & CO.\\nWestern Section.\\nJuly 31, 1928.\\nPetition for Certiorari denied by Supreme Court, January 12, 1929.\\nKlewer, Gailor & Exby, of Memphis, for appellant.\\nR. L. Bartels, of Memphis, for appellee.\", \"word_count\": \"3323\", \"char_count\": \"19118\", \"text\": \"HEISKELL, J.\\nThis is a suit by the Maryland Casualty Company to recover from Frank B. Hunter & Company, Incorporated, $1985 upon the theory that complainant sustained this loss by reason of the conduct of the defendant while acting as its agent in regard to a certain policy of burglary insurance.\\nThe bill charged that the complainant, Maryland Casualty Company, was engaged in the insurance business in the State of Tennessee, and that the defendant Frank B. Hunter & Company, Incorporated, was a duly licensed insurance agent and broker in the State of Tennessee; that in December, 1920, J. L. McTyier applied to Frank B. Hunter & Company for a burglary insurance policy in the sum of one thousand dollars, which Frank B. Hunter & Company obtained from complainant, and delivered to McTyier. That on January 22, 1921, the said J. L. McTyier filed a voluntary petition in bankruptcy, and on February 8, 1921, Gussie McTyier, the wife of J. L. McTyier, bought from the trustee in bankruptcy, the stock of goods covered by said burglary insurance policy; that \\u2022after the bankruptcy, and before February 8, 1921, the said Mc-Tyier notified Frank B. Hunter & Company of the filing of the petition in bankruptcy, and on February 8, 1921, the said Gussie Mc-Tyier acting through her husband, advised the defendant that she had acquired ownership of the stock of goods, and requested of the defendant an assignment of the policy to her, and that on said date, the defendant assured her that it accepted notice of the assignment and' that no new policy need be written, and that the policy theretofore executed and delivered to J. L. McTyier was still in force.\\nThe bill further alleged that on February 17, 1921, goods to the amount of $899.24 were stolen from the premises where the stock of goods was kept, and that on February 27, 1921, additional goods of the value of $632.30 were stolen; that the policy contained certain clauses prohibiting the assignment of same without the written consent of the company, and provided against a waiver unless the waiver was endorsed on the policy and signed by the president, one of the vice-presidents, or the secretary of the company, and that notice or knowledge by any agent or any other person could not be held to waive the terms or conditions of the policy. The bill then alleged that after the losses above mentioned Mrs. Gussie McTyier, sued the complainant herein in the chancery court of Shelby county, Tennessee, to recover on said policy; that the complainant herein set up as a defense, among other things, that the defendant Frank B. Hunter & Company was not its agent, and was a broker, and that it had no authority to consent to the assignment of the policy from J. L. McTyier, to Mrs. Gussie McTyier, nor to waive any of the conditions in the policy, and that the company had not consented to any assignment. The suit resulted in a final decree in favor of Gussie McTyier for one thousand dollars, which judgment on appeal to the Supreme Court was affirmed, the opinion in said cause being reported in 150 Tenn., page 691.\\nThe bill further alleged that the particular point litigated in said cause was whether or not the defendant was the complainant's agent, Mrs. Gussie McTyier contending in that suit that the defendant was the complainant's agent by virtue of the provisions of section 1 of chapter 442 of the Acts of 1907, which is as follows:\\n'That any person who shall solicit .an application for insurance shall in all matters relating to such application and the policy issued in consequence thereof be regarded as an agent of the company issuing the policy, and not the agent of the insured, and all provisions in the application and policy to the contrary are void and of no effect whatever; provided, this iact shall not apply to licensed fire insurance brokers. ' '\\nThe bill further charges that in said suit the Supreme Court held that Frank B. Hunter & Company was, with respect to the application for insurance and the policy issued in consequence thereof, the agent of the Maryland Casualty Company, and the defendant in that suit and the complainant in this suit, was bound by the acts of its agent, Frank B. Hunter & Company; that Frank B. Hunter & Company had notice of the pendency of the said suit of Gussie McTyier, having been a party thereto, and that Frank B. Hunter, an officer of the defendant corporation, was present at the trial and tesified as a witness.\\nThe bill charged, therefore, that the defendant Frank B. Hunter & Company was, with reference to said insurance, the agent of the complainant herein, and owed to it the duties lawfully owed by an agent to its principal, and yet, notwithstanding the duties owed to the defendant by the complainant, and notwithstanding that the defendant had actual notice of the bankruptcy of J. L. McTyier, and notwithstanding the defendant knew that the bankruptcy of the original insured m'ade the policy void, and notwithstanding the defendant knew that it had no express authority to assent to an assignment of the policy, and notwithstanding that the defendant assented to the assignment of the policy from J. L. McTyier to Mrs. Gussie McTyier, the defendant failed to notify the complainant of the change in circumstances in the risk, that defendant assented to an assignment of the policy in a manner contrary to the terms and provisions thereof and contrary to the usual practice and customs of insurance companies, which the defendant well knew. The bill further charged that the complainant had no notice of the foregoing facts and circumstances, until after the second loss, and that if it had been notified, it would have ordered a cancellation of said policy and that by reason of the breaches of duty by the defendant to the complainant, the complainant was compelled to pay out the total sum of $1985.60. The prayer of the bill was for a decree against the defendant for the $1985.60, with interest thereon.\\nBy way of answer, Frank B. Hunter & Company interposed the following defens.es:\\nT. A general denial of the material allegations of the bill.\\n2. That Hunter & Company were not the agents of the Maryland Casualty Company, either general or special, and owed no duty to it.\\n3. That Hunter & Company were not negligent in failing to notify the Company of the change of ownership with respect to the insured property; and that even if Hunter & Company should be treated as agents in the ordinary sense of the Maryland Casualty Company, no duty owing had been breached.\\n4. That in the original suit brought upon the policy by McTyier, the main, if not the only defense, of the Maryland Casualty Company was that Hunter & Company were not in any sense the agents of the Company; did not act or undertake to act for it and had no authority, express or implied, to act in its behalf.\\nThat, by virtue of this insistence, solemnly made, in a judicial proceeding, both by pleading and sworn testimony, the Maryland Casualty Company, under the doctrine of judicial estoppel, cannot in this suit, maintain that Hunter & Company were their agents.\\n5. Conceding, for the sake of argument only, that Hunter & Company were the agents of the Maryland Casualty Company in the ordinary sense, and that as such agents, they owed a duty to the Maryland Casualty Company to advise, it of its knowledge and consent as to change of ownership of property covered by the Mc-Tyier policy, yet, the Maryland Casualty Company was, as a matter of fact, subsequently advised of such change in ownership, and that it, thereafter ratified the conduct of Hunter & Company in assenting to the change.\\n6. That if Hunter & Company were to be treated as agents, owing a duty to their principal, to advise and report relative to change in the ownership of the insured property, that such duty was owing, not to the Maryland Casualty Company, with, whom there was no privity, but to Henderson & Schley, the General Agents of the Maryland Casualty Company in Memphis, who are to be treated as having appointed Hunter as sub-agent, no authority, express or implied, having been given by the Maryland Casualty Company to Henderson & Schley to appoint a sub-agent.\\nThe Chancellor dismissed the bill, and the Maryland Casualty Company has appealed to this court.\\nUnder the assignments of error two material questions are submitted to this court for determination. (1) Was F. B. Hunter & Company by virtue of the Act of 1907, chapter 422, and the opinion of the Supreme Court in Maryland Casualty Co. v. McTyier, 150 Tenn., the agent of complainant in regard to.said McTyier's policy, in such sense as to become liable to the complainant under the ordinary principles of agency. (2) Is complainant precluded from asserting such agency, by its denials in the former suit that Hunter & Company was its agent or had authority to act as its agent in regard to the policy in question.\\nThere is no dispute as to the facts upon which these questions depend. It is conceded that F. B. Hunter & Company was an insurance broker, merely in regard to the McTyier policy, that it had no authority from raoay one to act as the agent of the complainant and that no relation of principal and agent existed between the complainant and the defendant by virtue of any contract. The sole contention of the complainant is that the Act of 1907, chapter 442, as construed by the Supreme Court in the McTyier case necessarily created this relation of agency with all its attendant obligations and responsibilities.\\nIn the McTyier case the court did not hold that F. B. Hunter & Company became as to the policy in question the agent of the Casualty Company in the ordinary sense, but only in the sense that as to the insured the knowledge and conduct of defendant was by virtue of the statute effective to bind the insurance company. In that case at page 700 the court speaking of the Act of 1907 says:\\n\\\"It seems to be designed in the clearest manner, to make the Company responsible to the public for the acts of one whom it permits to solicit insurance on its behalf, etc., whether such person has, in fact, authority to act for it or not. The law imposes upon the Company the duty of seeing to it that none but its regular authorized agents shall do its business or deal with the public.\\\"\\nA similar statute to the one construed and applied in the above case (Act of 1907, chapter 442) has been construed by the Supreme Court of Oklahoma in Aetna Life Ins. Co. v. Kramer, 65 Olda., 165 s. c. 165 Pae., 179. In that case the Aetna Company sued Kramer Brothers, who, strictly speaking, were insurance brokers, and who had procured for their respective clients, through the general agents of the Insurance Company, certain policies. The suit was to recover moneys due on account of premiums for the policies issued, the Aetna proceeding upon the theory that Kramer Brothers were its agents under .a verbal appointment made by its general g.gent, and of course, claimed that, being their agents, they owed to the Aetna Insurance Company the duty of accounting. Kramer Brothers denied that they were agents but said they were mere brokers, and that they had settled with the general agent of the plaintiff for such policies as they, as brokers, had procured.\\nThe Aetna Insurance Company sought to hold Kramer Brothers liable as their agents, by virtue of a statute which so far as material, is as follows:\\n\\\"Any person who, for compensation, solicits insurance on behalf of an insurance company, or transmits for a person other than himself an application for a policy of insurance to or from such company, or offers or assumes to act in the negotiation of such insurance, shall be an insurance agent . . . and shall thereby become liable for .all the duties, requirements, liabilities and penalties to which an agent for such company is subject.\\\"\\nThe court, in disposing of the matter, and holding that Kramer Brothers were not to be treated as agents, in the sense that they owed any duty to the Insurance Company, said:\\n\\\"There \\u00a1are only two issues presented] by the pleadings . . . First, as to whether or not defendants were as a matter of law agents of the plaintiff at the time complained of. . . . Plaintiff contends that as a matter of law, the defendants, Kramer Brothers, were the agents of the plaintiff under and by virtue of the statutes of the State regulating Insurance Companies, and particularly section 3431, Kevised Laws (above quoted). .\\n\\\"It is our view that the statutes relied upon by the plaintiff do not support its contention, and were enacted by the State not for the protection and regulation of the intercourse of insurance companies and their agents, or to fix their contractual relations, but for the protection of the insuring public. . . . As between-the insured and the company, the defendants were, under the statute quoted, as a matter of law, the agents of the company, but as to the relations of the Insurance Company and its agents the State is not or was. not concerned, and their relations would depend upon contract. We, there fore, cannot say, as a matter of law, the status of the Insurance Company and their agents as between themselves is fixed by statute, but, on the contrary, we think it is regulated by contract. ' '\\nThere was more reason for the contention of the complainant in that case than in the present, both in the form of the statute and by reason of the other facts involved.\\nThe Act of 1907 had no purpose to affect the relation of solicitors of insurance and the company issuing the policy as between themselves. This was left to be regulated by contract. Tt was only intended to apply as between the company and the insured. The statute might have been written with the same meaning without use of the word \\\"agent.\\\" It might have provided that where an insurance company accepts the application for a policy tendered by a broker for another, and issues the policy, so far as that policj'- is concerned the knowledge and conduct of the broker shall bind the company and not the insured. The effect would be the same.\\nThe company cannot complain of this. It need not consider an 'application for insurance from any one except a regular agent with whom the company is well acquainted, in whom it has implicit confidence, and who can be put under bond if so desired, but if it receives the application and issues the policy it must do so with the understanding that as to the insured, the company will be bound by the knowledge and conduct of the intermediary as if he were an agent of the company.\\nThe complainant insists that there is no estoppel by reason of statements in the McTyier case. There is no dispute as to the position of the company in that suit. The agency of F. B. Hunter & Company was denied in terms as emphatic as the language affords, but complainant says there is no estoppel where the contention in a former suit was a conclusion or an opinion. And there can be no estoppel where the first position was not successfully maintained. Neither of these distinctions apply in the present case. The statement that defendant was not the agent of complainant was a statement of fact \\u2014 not the expression of opinion. The statement was true except in the limited sense of an agency in invitum imposed by the statute.- But now complainant is contending for an agency in the broad general sense denied in the former suit. Nor did the court in the McTyier case hold against the position of complainant that the defendant was not authorized to act as agent. This was assumed, and the knowledge of the broker was attributed to the company solely by virtue of the Act of 1907. Even now we do not understand complainant to contend for a recovery unless the statute had the effect to make Hunter & Company the agent of the company in that transaction, not only as to the insured, but also as to the company and unless it created an agency o\\u00ed the usual and ordinary sort, as if by contract and with all the duties and obligations incidental thereto as between principal and agent.\\nIn addition to the questions already discussed, it is contended for the defendant that even if it be conceded that Hunter & Company was the agent of complainant in the ordinary sense, still complainant has not made out a case of liability.\\nAn insurance agent, who is not given positive instructions, may exercise his discretion with respect to matters of his agency, and, if he does so in good faith, he is not liable to his principal. Strong v. Stewart, 9 Heisk., 138 (4); 2 Joyce on Insurance, secs, 667-668; 32 Corpus Juris, p. 1073; Meehem's Agency (2 Ed.), sec. 1244 et seq.\\nThe very nature of the present case precludes the idea of any instructions to Hunter & Company. The relation created by statute could carry with it no instructions from the insurer. There was no contractual relation. Hunter made no report to the company, and received no compensation from it. There is nothing to show that Hunter did not act in good faith.\\n\\\"The rule is universal that an agent is only held to the exercise of good faith and due diligence. Lee v. Bank, 150 Tenn., 289.\\\"\\nThe record fails to show that there was any increase of risk by reason of the change of ownership and when the policy was finally cancelled, it was not on this ground, but because of experience which we take to mean the knowledge of the consecutive losses, which of course followed the conduct of the agent for which the suit is brought. There is some attempt by the witnesses for complainant to say that the risk would not have been accepted if the facts had been known, but they show no instances in which a risk was refused under similar circumstances.\\nIf the assignment of a policy did not increase the risk and no positive instructions were given the agent forbidding it, the failure to notify the insurer did not render the agent liable, even though the company might have canceled the policy had it known of the assignment. Scottish Union Ins. Co. v. Andrews, 40 Texas Civ. App., 184, syl., 4-5 s. c., 89 S. W., 419.\\nThe agent is not liable for not informing the company of facts material to the risk which the court hold his knowledge of,' constituted a waiver of a policy prohibition, where the agent acted in good faith, and there was an acceptance of the premium by the company after knowledge of the facts. And the burden rests upon the company to show that it would not have accepted the risk had it known the true facts as to the ownership. Shawnee F. Ins. Co. v. Chapman, 63 Texas Civil App., 61, s. c., 132 S. W., 854. See, also, Winne v. Niagara Fire Ins. Co., 91 N. Y., 185; Norwood v. Alama Fire Ins. Co., 13 Tex. Civ. App., 475, s. c., 35 S. W., 717; Condon v. Exton, 144 N. Y. Supp., 760.\\nAll assignments of error are overruled and the judgment of the lower court is affirmed. Appellant and surety on appeal bond will pay the cost of the appeal.\\nOwen and Senter, JJ., concur.\"}"

tenn/8510611.json

@@ -0,0 +1 @@
+"{\"id\": \"8510611\", \"name\": \"INTERSTATE LIFE & ACCIDENT CO. v. SPURLOCK\", \"name_abbreviation\": \"Interstate Life & Accident Co. v. Spurlock\", \"decision_date\": \"1933-01-14\", \"docket_number\": \"\", \"first_page\": \"250\", \"last_page\": \"256\", \"citations\": \"16 Tenn. App. 250\", \"volume\": \"16\", \"reporter\": \"Tennessee Appeals Reports\", \"court\": \"Tennessee Court of Appeals\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-11T00:59:52.382149+00:00\", \"provenance\": \"CAP\", \"judges\": \"Paw, P. J.,' and DeWitt, J., concur.\", \"parties\": \"INTERSTATE LIFE & ACCIDENT CO. v. SPURLOCK.\", \"head_matter\": \"INTERSTATE LIFE & ACCIDENT CO. v. SPURLOCK.\\nMiddle Section.\\nJanuary 14, 1933.\\nPetition for Certiorari denied by Supreme Court, April 8, 1933.\\nTurner & Haston, of McMinnville, for plaintiff in error, Insurance Co.\\nMercer & Johnson, of McMinnville, for defendant in error, Spur-lock.\", \"word_count\": \"2508\", \"char_count\": \"14095\", \"text\": \"CROWNOVER, J.\\nThis case is again before us on motion to dismiss the writs of error and supersedeas heretofore granted by us in, this case, in that the supplemental record showed that the bill of exceptions was filed on August 31, 1931, and that the verdict and judgment had actually been made on June 22, 1931, but the same were entered of record by an order nunc pro tunc made on July 4, 1931.\\nThis motion must be overruled, for the reason that the judgment overruling the motion for a new trial was not actually made and entered until July 4, 1931, and in that order the defendant was allowed sixty days in which to prepare and file a bill of exceptions; hence the bill of exceptions, being filed on August 31, 1931, was filed within the time allowed.\\nIt is insisted that the original judgment was made on June 22, 1931, but was entered under an order nunc pro' tunc made and entered on July 4, 1931.\\nThe supplemental record filed in this case was prepared and filed under a written stipulation signed by all the attorneys. This written stipulation contains the minutes of the court showing the return of the verdict and the entry of the judgment. It shows that the verdict was returned on June 22, 1931, but was entered under a nunc pro tunc order made on July 4, 1931. The motion for a new trial was filed some time before July 4, as the order shows that the court overruled the same on July 4 and entered judgment for the plaintiff for $325, with interest, to which the defendant excepted and prayed an appeal, which was granted, and sixty days from July 4, 1931, was allowed the defendant in which to prepare and file its bill of exceptions. There is nothing in the record showing that the judgment was actually made on June 22, 1931, but, on the contrary, the supplemental record shows that it was made and entered on July 4, 1931. It was agreed by the attorneys that the supplemental record was a correct copy of the verdict and judgment, hence the motion must be overruled, and the clerk is directed to place the case on the docket for trial at the next term of this court.\"}"

tenn/8510775.json

@@ -0,0 +1 @@
+"{\"id\": \"8510775\", \"name\": \"BERTHA ELIZABETH TERRY v. WM. THOMAS TERRY\", \"name_abbreviation\": \"Terry v. Terry\", \"decision_date\": \"1928-03-23\", \"docket_number\": \"\", \"first_page\": \"573\", \"last_page\": \"574\", \"citations\": \"7 Tenn. App. 573\", \"volume\": \"7\", \"reporter\": \"Tennessee Appeals Reports\", \"court\": \"Tennessee Court of Appeals\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T18:53:47.393991+00:00\", \"provenance\": \"CAP\", \"judges\": \"Owen and Senter, JJ., concur.\", \"parties\": \"BERTHA ELIZABETH TERRY v. WM. THOMAS TERRY.\", \"head_matter\": \"BERTHA ELIZABETH TERRY v. WM. THOMAS TERRY.\\nWestern Section.\\nMarch 23, 1928.\\nPetition for Certiorari denied by Supreme Court, June 30, 1928.\\nHarsh & Harsh, of Memphis, for appellant.\\nA. A. Kincannon, Deputy Divorce Proctor, of Memphis, for ap-pellee.\", \"word_count\": \"761\", \"char_count\": \"4368\", \"text\": \"HEISKELL, J.\\nThis is a suit for divorce. The bill alleges that complainant, Bertlia Elizabeth Terry, and defendant, were married on October 26, 1897, in Atlanta, Georgia; that they moved to Memphis, Tennessee, December 10, 1920, and that he abandoned her on January 28, 1924, and returned to his parents in Atlanta, Georgia, and has contributed nothing to her support since that time.\\nThere was publication for defendant as a nonresident and a pro confesso. The Proctor filed a formal answer.\\nThe testimony of complainant is almost as meager as her bill. She says, in 1920, when they came to Memphis, defendant's father gave him forty thousand ($40,000) dollars. What became of it she does not say, but does say, that shortly after they moved to Memphis, defendant refused to work and did not support complainant, but continued to live at home; that she often told defendant, that she would not live with him unless he made provision for her support: that they continued to live together in this fashion until January 28, 1924, when he left Memphis, and went to Atlanta, where he has been living continuously ever since.\\nThat they purchased a home on Young avenue; that the title was taken in her name, and she realized about fourteen hundred ($1400) or fifteen hundred ($1500) dollars from the sale of this property.\\nOn cross-examination, she is asked \\u2014 why her husband left Memphis, and she said \\\"he had to go.\\\" When asked \\u2014 why he had to go, she said he was in trouble here; that he had bought a diamond ring on the installment plan and pawned it and could not pay the installments; 'that she and her sister redeemed the ring and returned it to the jewelry house and that the defendant left for At-, lanta, the same day and she has never seen him or heard from him; since that day.\\nRichard Cain and Mrs. Rvelyn Sherman, testified as follows:\\n\\\"That the defendant left Memphis, on the 28th day of January, 1924, and went to Atlanta, to live with his father; that he has not returned to the complainant, nor has he contributed anything to her support since that time.\\n\\\"That the defendant received property valued at forty thousand ($40,000) dollars, as his share of his father's property division in the year 1920; that for a long period before the separation, the de-' fendant did not support or provide for the complainant.\\\"\\nThe Chancellor dismissed the bill and complainant has appealed.\\nThe testimony is not reported by questions and answers, but the substance of it is purported to be stated. The Chancellor had the witnesses before him and no doubt got a better idea of the testimony than we can get from the record. He thought the proof insufficient. It seems to us to be especially lacking in detail and circumstance. They lived together in Atlanta for twenty years, raised one son to manhood. They came to Memphis on December 10, 1920, with forty thousand ($40,000) dollars, yet for some time before January 28, 1924, he was refusing to work, failing to support her and she was threatening to leave him. Plow did she live? Did she work? Did they run through the forty thousand ($40,000) dollars, in say, less than two years? Why did she say he had to leave Memphis when the ring had been redeemed? Tf she had not heard from him since January 28, 1924, how does she know that he is still living in Atlanta, and has lived there continuously since the separation ?\\nThe corroborating witnesses do not state how they know 'the facts as to which they testify. Their testimony sounds like hearsay. It reads like they were saying what they had heard from the complainant and that she told them rather more than she knew herself. If this be considered an unfair criticism of the testimony then it should have been brought out and brought up in more convincing shape. The case looks like one in which the complainant did not take the court into her confidence. The Chancellor, having had a far better opportunity to learn the merits of the case than we have, we are not inclined to reverse his decree.\\nThe assignments of error are overruled and the decree of the lower court is affirmed.\\nOwen and Senter, JJ., concur.\"}"

tenn/8511400.json

@@ -0,0 +1 @@
+"{\"id\": \"8511400\", \"name\": \"GREYHOUND LINES, INC., v. MR. and MRS. T. H. PATTERSON\", \"name_abbreviation\": \"Greyhound Lines, Inc. v. Patterson\", \"decision_date\": \"1932-03-19\", \"docket_number\": \"\", \"first_page\": \"652\", \"last_page\": \"667\", \"citations\": \"14 Tenn. App. 652\", \"volume\": \"14\", \"reporter\": \"Tennessee Appeals Reports\", \"court\": \"Tennessee Court of Appeals\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T23:41:40.250629+00:00\", \"provenance\": \"CAP\", \"judges\": \"Crownover and DeWitt, JJ., concur.\", \"parties\": \"GREYHOUND LINES, INC., v. MR. and MRS. T. H. PATTERSON.\", \"head_matter\": \"GREYHOUND LINES, INC., v. MR. and MRS. T. H. PATTERSON.\\nEastern Section.\\nMarch 19, 1932.\\nPetition for Certiorari denied by Supreme Court, July 23, 1932.\\nNoone & Ziegler, of Chattanooga, for plaintiff in error.\\nFrazier, Rankin & Roberts, of Chattanooga, for defendants in error.\", \"word_count\": \"6167\", \"char_count\": \"33076\", \"text\": \"FAW, P. J.\\nThe plaintiff in error Greyhound Lines, Inc., a corporation, is a common carrier of passengers, and in that business operates motor buses between Chattanooga, Tennessee, and Atlanta, Georgia.\\nA bus operated by plaintiff in error, in which Mr. and Mrs. T. H. Patterson were riding as passengers, left the highway, knocked down or \\\"cut off\\\" a telephone pole, and turned over onto its side, near the foot of a mountain it was descending about eighteen ox-twenty miles north of the City of Rome, Georgia, in the nighttime on December 29, 1930.\\nMrs. Pattex-son sued the Greyhound Lines, Inc., for damages on account of personal injuries suffered by her, and, in a separate suit, Mr. Pattei-son sued for personal injuries to himself and for expenses incurred on account of his wife's injuries and for loss of his wife's services, etc. The two suits were, by consent, tried together in the circuit court, and have been brought to this court in one transcript with one bill of exceptions and joint assignments of error.\\nIn the circuit court Mrs. Patterson obtained a verdict, and judgment thereon, for $1,500, and Mr. Patterson a verdict and judgment for $350 \\u2014 $50 of which was for his personal injuries and $300 for loss of his wife's services. After its motion for a new trial had been overruled, the Greyhound Lines, Ine., appealed in error to this court.\\nReferring to the Pattersons as the plaintiffs and to the Greyhound Lines, Inc., as the defendant: the declaration of each plaintiff contains two counts, and the averments of the two declarations, with respect to the negligence charged, are the same. In the first count it is averred that defendant failed to have the large passenger bus under proper control, was driving it too fast down grade, was not keeping a lookout ahead, and was generally negligent and careless in the handling of the bus; that the bus was defective, and was dangerous to operate, and was allowed by defendant to be operated in a poor state of repair; that its defective condition was known by defendant or could have been known by the exercise of reasonable care and prudence, all of which defendant failed to use, and that the bus was operated at a negligent rate of speed. It is further averred that as a result of the aforesaid negligent conduct on the part of defendant the bus was caused to run off the side of the road at a high and dangerous rate of speed, thereby throwing plaintiff against the sides, seats and floor of the bus, with great force and violence, and consequently severely and permanently injuring plaintiff. The injuries are particularly described in each of the declarations.\\nIn the second count it is averred that the accident happened in the State of Georgia, and at the' time it was provided by the law of that State that no vehicle should run more than forty miles an hour, and that vehicles weighing more than ten thousand pounds should not run over twenty-five miles an hour, and penalizing the violator of such laAv; that at the time the accident happened the defendant was running its bus faster than forty miles an hour; that the bus weighed more than ten thousand pounds; that consequently defendant was violating the provisions of the law, both as to the forty and the twenty-five mile limit, and that this violation was the proximate cause of the plaintiffs' injuries.\\nThe first assignment of error is that \\\"there was no material or competent evidence to support the verdict of the jury and the judgment of the court.\\\"\\nIn oral argument at the bar and in their briefs counsel have treated this as an assignment that there is no material evidence to support the verdicts of the jury, and have ignored the included assertion in the formal assignment that there is no \\\"competent\\\" evidence, etc. For obvious reasons, this was proper, and we shall treat the first assignment likewise.\\nIn his testimony, plaintiff T. H. Patterson stated that he and his wife paid their fare from Chattanooga to Atlanta and left Chattanooga on one of defendant's buses at six o'clock P. M., December 29, 1930; that the bus was due to leave Chattanooga at five o'clock P. M., but came in late from Atlanta and left Chattanooga an hour late; that witness and his wife were seated in the front seat on the right hand side of the bus; that when the bus had crossed and reached the foot of the mountain between Summerville and Rome (Georgia), but on a slight down-grade and a straight road ahead, it left the road and turned over on its right side; that the bus was \\\"making pretty good time;\\\" that witness \\\"would say from forty to fifty miles an hour;\\\" that witness had a \\\"hazy recollection of seeing the driver twist his steering wheel over\\\" and then witness realized that the bus was dashing at a telephone post on the right hand side of the road; that then there was a \\\"crash,\\\" the bus hit the telephone post and knocked it down and went off the road and down an embankment five or six feet high and \\\"landed\\\" on its right side;-that the bus was not meeting another vehicle and that witness did not know what caused it to leave the road.\\nMrs. Patterson's testimony with respect to the place where the accident occurred is substantially the same as that of Mr. Patterson, as just related. Mrs. Patterson said that she \\\"saw the driver begin working at the wheel\\\" and then \\\"looked up\\\" and saw that the bus was going out to the right hand side of the road and saw a telephone pole in front of the bus, and then the bus turned over on its side; that \\\"after the accident\\\" she saw that the bus had \\\"struck the telephone pole and cut it down.\\\"\\nThe testimony of Mr. and Mrs. Patterson was the only evidence introduced in their behalf with respect to the manner in which the bus left the road and overturned.\\nPlaintiff proved, without dispute, that the second count of the declaration correctly stated the law of the State of Georgia with respect to the speed of vehicles.\\nThe evidence of plaintiffs does not show what caused the bus to leave the road, and it directly tends to prove only one of the specific acts of negligence averred in the declarations, viz: that the bus was being operated at an excessive rate of speed in violation of the law of the State of Georgia.\\nThe defendant examined the driver of the bus in question and another of its employees who was riding in the bus at the time of the accident, and by these witnesses defendant sought to- prove that the accident was due solely to a latent defect in the mechanism of the bus which a reasonable inspection on the pant of the defendant would not disclose.\\nA common carrier of passengers by motor bus or automobile stage is required to exercise the same degree of care which the law imposes on common carriers of passengers generally, and that is the highest degree of care for the safety of its passengers consistent with the practical conduct of its business. 2 Berry on Automobiles (6th Ed.), secs. 1928 and 1937; Huddy on Automobiles (7th Ed.), sec. 344; 4 R. C. L., pp. 1153-1154, sec. 588; Cecil v. Jernigan, 4 Tenn. App., 80; Baskin & Cole v. Whitson, 8 Tenn. App., 578, 591; Annotation, 31 A. L. R., 1197, 1206; Annotation, 45 A. L. R., p. 297.\\nIt is a matter of common knowledge that in the ordinary course of events a motor bus does not leave the road, collide with a telephone pole, and overturn down a steep embankment, if the care which the law demands has been exercised by the carrier; hence the doctrine of res ipsa loquitur is applicable to the instant ease. Railroad v. Kuhn, 107 Tenn., 106, 112, 64 S. W. 202; 20 R. C. L., p. 185-189, secs. 156-157; 5 R. C. L., pp. 74-77, secs. 713, 714, 715; 1 Berry on Automobiles (6th Ed.), sec. 724, pp. 599-600; Annotation, 45 A. L. R., pp. 306-307; Annotation, 69 A. L. R., pp. 996-998; Heidt v. Peoples Motorbus Co. (Mo.), 9 S. W. (2d), 650; Consolidated Coach Corporation v. Hopkins, 228 Ky. 184, 14 S. W. (2d), 768; Bower Auto Rent Co. v. Young (Texas C. C. A.), 274 S. W., 295; Carlson v. Kansas City, etc., Transit Co. (Mo.), 282 S. W., 1037, 1042.\\nWhere res ipsa loquitur is otherwise applicable, a plaintiff does not lose the benefit of that presumption by alleging specific acts of negligence of the carrier which he fails to prove (Nashville Interurban Railway Co. v. Gregory, 137 Tenn., 422, 433, 193 S. W., 1053), or by introducing evidence tending to show-specific acts of negligence which caused the accident resulting in injury to the plaintiff, if at the close of the evidence the cause does not clearly appear, or if there is a dispute as to what it was. Smith v. Creve Coeur Drayage & Motorbus Co. (Mo. Ct. of App.), 296 S. W., 457; Malone v. Greyhound Lines, Inc. (Mo. Ct. of App.), 22 S. W. (2d), 199; Price v. Metropolitan Street Railway Co., 220 Mo., 435, 119 S. W., 932, 132 Am. St. R., 588, 600; Cassady v. Old Colony Street Railway Co., 184 Mass., 156, 63 L. R. A., 285.\\nIt follows from the rules we have stated that when plaintiffs proved, as they did, that they were injured by the overturning of defendant's bus under the circumstances shown in their testimony, and their evidence did not disclose the proximate cause of the accident, they were entitled to a verdict in their favor, unless the defendant proved that its negligence did not cause the injury to the plaintiffs, and that the exercise of due care on its.part could not have prevented the injury. Railroad v. Kuhn, supra, p. 112; 5. R. C. L., p. 76; 20 R. C. L., p. 187; 1 Berry on Automobiles (6th Ed.), sec. 724, p. 600; Stegman v. Peoples Motorbus Co. (Mo. Ct. of App.), 297 S. W., 189, 192; Annotation, 45 A. L. R., p. 387.\\nJ. C. George, an employee of defendant,' was driving the bus in question when it overturned and injured plaintiffs. George was a driver of fourteen years' experience in driving trucks and automobiles, and had been driving for defendant more than a year at the time of the accident here under investigation. He testified that the bus in question left Chattanooga an hour late and was still a.n hour late at the place it overturned, which was about eighteen miles from Rome; that he had had no \\\"mechanical trouble\\\" with the bus from the time it left Chattanooga until it arrived at the scene of the accident; that he had crossed the ridge and was \\\"just getting on level grade of the road\\\" when he \\\"lost control\\\" of the bus and it left the road and overturned. We quote from the driver's testimony as follows:\\n\\\"Q. Now what occurred, what was the first thing that indicated to you there was any trouble of any character? A. I felt the wheel and it was loose, I knew something was wrong.\\n\\\"Q. ITow did you know something was wrong? A. Because in driving, you can tell if anything is wrong in the wheel.\\n\\\"Q. You mean your steering wheel, you lost control? A. Yes, sir.\\n\\\"Q. ' State after that what happened? A. Well, it all happened so quick I can hardly tell, but it went off to the right of the road, hit a small telephone post with the right front fender, and ran down into a big washout about four feet deep on the side of the road, my left-hand wheel was on the edge of the road and the right down in the ditch, when it got down in the ditch it laid over on its side.\\n\\\"Q. Plow low was this embankment \\u2014 -was that the right or the left side? A. The right side.\\n\\\"Q. How low was that below the surface of the road? A. I would judge about four feet, I wouldn't be positive.\\n\\\"Q. It turned over on its right side? A. Yes, sir.\\n\\\"Q. Could you do anything at all about controlling the bus after the mechanical defects happened? A. None whatever.\\n\\\"Q. State what kind of brakes you have ? A. Westinghouse Air Brakes, and Eastern Air Brakes.\\n' ' Q. State if when this defect happened, the thing that caused you to lose control, if that did anything to the brakes? A. It broke my air line on the front wheel.\\n\\\"Q. Did that make it impossible to apply the brakes? A. Yes, sir. . . .\\n\\\"Q. Now after the wi'eck, and after the injured passengers had been disposed of, and gotten on their way towards Rome, state if you made a detailed examination of the bus to see what it was that had occurred to cause you to lose control of it? A. I did.\\n' ' Q. Please tell the jury just what happened mechanically to that truck? A. The left front spindle arm, where the spindle arm goes into the spindle broke off, and that causes you to lose control of the front wheel, in other words the tie rod that goes across and holds the wheels together, that spindle broke on the left so there was no control of the wheels, of the two front wheels, they are separate.\\n\\\"Q. Can you make a drawing here that will show what you mean? A. Yes, sir.\\n\\\"Mr. Roberts: I think the jury knows what he is talking about.\\n\\\"The Court: Let him draw it.\\n(Witness goes to the blackboard and makes drawing.)\\n\\\"This is-the tie rod that holds the two wheels, in position and in line, this tie rod here holds both wheels in line, this spindle arm here goes into the spindle to connect the tie rods together, this spindle arm, this part here (indicating) broke off where the spindle arm goes into the spindle, it broke flush off with spindle, and caused this to drop down, and there was no control of the front wheels.\\n\\\"Q. Is that a metal knob, or a long piece? A. It is cast on to this spindle, it was a clear break.\\n\\\"Q. Was that on the left or the right side of the car? A. The left side.\\n\\\"Q. Now explain exactly to the jury what happened to your front wheels when that occurred? A. A small rock, no bigger than that (indicating) will cause your wheel, one to go one way and the other go the other way.\\n\\\"Q. State whether the striking of a small rock will deflect the eourse of the truck or ear sooner if the bus or vehicle is going slow or fast? A. It would affect it more when going slow than when going fast because then the momentum will help to right the wheels.\\n\\\"Q. State what the condition of this mechanical device showed \\u2014 first, when did you first inspect this truck to see what the trouble was? A. After we got all of the injured out, and had them on their way to the hospital, then I inspected it.\\n\\\"Q. Who was with you when you inspected it? A. I inspected it myself, Mr. Jolley looked at it while I was down there at the telephone.\\n\\\"Q. State if you ever made any other examination of it except on this occasion, immediately following the turnover? A. I don't know what you mean.\\n\\\"Q. After you got it to Atlanta or Rome, did you look at it again? A. When it'was taken into Atlanta they rebuilt it.\\n\\\"Q. Did you look at it? A. When they got the broken part out, I did.\\n\\\"Q. State to the jury what the condition of that break was, whether it was fresh or an old break? A. It was a fresh break.\\n\\\"Q. State if any inspection of the bus could have revealed the possibility of that breakage? A. Couldn't detect it at all.\\n\\\"Q. Now what kind of pole was this that was broken there? A. It was a little pole, I imagine about eight inches in diameter.\\n' ' Q. Did the side or the end of the bus strike that ? A. The right front fender.\\n\\\"Q. The front or side of the fender? A. The side.\\n\\\"Q. As the car was turning? A. Yes, sir.\\\"\\nThe driver further testified that the bus ran fifty or sixty feet from the time he first \\\"noticed any trouble\\\" until it turned over, and that if the brakes had worked and the bus had stayed in the road he could have stopped it in fifteen or twenty feet.\\nWith reference to the brakes on the bus, we quote from the testimony of the driver as follows:\\n\\\"Q. As soon as you found something was wrong, and the wheel did not guide the car, you put on the brakes? A. I applied the brakes, and pulled up the hand brake.\\n\\\"Q. Those were Westinghouse Air Brakes? A. Eastern on this car.\\n\\\"Q. You say that didn't have any effect? A. When that broke the air line runs into the wheel, it broke.\\n\\\"Q. You don't mean the air itself runs to the hub? A. The air hose that runs from the frame over a diaphram on the front wheel.\\n\\\"Q. Each wheel has its own diaphram? A. Yes, sir.\\n\\\"Q. Is that the only braking equipment those buses have? A. They have a hand brake.\\n\\\"Q. Have you a mechanical hand brake that will put the brakes on? A. We have a hand brake and air brakes also.\\n\\\"Q. When your air brakes had no effect, what did you do with the hand brakes? A. Pulled it up.\\n\\\"Q. Did that have any effect on it? A. It slowed it down, yes, sir. It all happened so quick it didn't have time to stop.\\n\\\"Q. Is that hose connected to the wheel in such a way that the slightest turn of the wheel out of line will break it off? A. I should not think so.\\n\\\"Q. That is what you contend should happen up until the time you applied the brakes there in the road, your car was still on tbe road, was it not? A. It was fixing to go off, it jumped off tbe side.\\n' ' Q. But it was leaning towards tbe side, still going forward ? A. Yes, sir.\\n\\\"Q. You put tbe brakes on and something happened to tbe hose so it did not do any good? A. I saw that tbe line was broken when I examined it.\\n\\\" Q. At tbe time these wheels bad not turned themselves very much either to the right or left? A. When the tie rod came off it jumped to the right.\\n\\\"Q. Didn't it wobble a little first? A. Yes, sir.\\n\\\"Q. When you found it was wobbling, you put your brakes on? A. Sure.\\n\\\"Q. It had no effect then? A. It was all so quick you couldn't hardly tell what you did do.\\n\\\"Q. From what you do remember about the way it happened, when it wobbled you applied the brakes? A. Yes, sir.\\n\\\"Q. And that had no effect? A. It slowed up a little bit, and I reached and got the hand brake.\\n\\\"Q. The reason you did that, the air brake had no effect, and whatever wobbling it had done before, that might have broken the hose? A. Yes, sir.\\n\\\"Q. If the hose had properly been put on there, it wouldn't have broken? A. There was nothing wrong with it. If there had been they would have caught it in Atlanta.\\n\\\"Q. You think they would? A. They test the brakes every trip, and a driver is not allowed to take a coach out unless the air brakes worked properly.\\n\\\"Q. That is a rule of the Company that you are testifying about ?^ A. I don't make the rules.\\n\\\"Q. You don't know personally whether it was broken or not? A. If it had been broken the air would not have worked.\\n\\\"Q. Certainly it was not broken until it wobbled, and that wobble did the breaking? A. A pin hole in an air line will kill the air brakes.\\n\\\"Q. A pin hole? A. Yes, sir, anywhere that the air can escape.\\n\\\"Q. Do you mean that your Company puts these big buses on the road and runs them at the rate of speed they do, with brakes such that a pin hole will make it not operate ? A. If you stick a hole in a gas line it will leak.\\n\\\" Q. I am asking you about these brakes ? A. It is the same thing.\\n\\\"The Court: It is tbe same thing as Hydraulic brakes, the same principle.\\n\\\"Q. Anyway the brakes didn't hold? A. That is right, that is all I know.\\n\\\"Q. If the brakes had held from the time you observed something was wrong, you could have stopped? A. No, sir.\\n\\\"Q. How far does it take to stop a bus with brakes going at the rate of speed you were? A. You can stop in fifteen feet, but it had started down that ditch, and the brakes don't do any good when it starts in a ditch, where one wheel is off the front. That is a narrow road, about four feet down the bank, and when the steering gear broke it went right on in the ditch.\\n\\\"Q. You could have stopped in fifteen feet if the brakes had worked? A. If it had stayed in the middle of the road, I could have stopped it, yes, sir.\\\"\\nRe-Direct Examination.\\nBy Mr. Ziegler:\\n\\\"RD. About how much surface was there of this part or piece of metal that was broken off? A., I don't understand what you mean.\\n\\\"RD. How much surface on this piece of metal that was broken off, fresh break where you could see there?\\n\\\"The Court: He means the diameter of the break.\\n\\\"RD. The piece of metal broken off, how much surface was on the broken part? A. You mean where it broke off the spindle.\\n\\\"RD. Yes, sir. A. I imagine about two and one-half inches.\\n\\\"RD. Now will you make a diagram similar to this piece, on some paper, and file it as Exhibit 'A' to your testimony? A. Yes, sir.\\n\\\"The Court: You can do that later.\\n\\\"RD. What happened when that thing broke, in regard to the wheel? A. The wheels were liable to toe towards each other, or away from each other.\\n'\\\"RD. Would that tend to break the air line? A. Sure.\\n\\\"RD. You say it happened so fast, by the time you had your hand brake, you had gone over the edge of the road? A. Yes, sir.\\n\\\"RD. You say you don't know whether that bus weighs 10,000 pounds or more or less? A. I do not.\\\"\\nRe-Cross-Examination.\\nBy Mr. Roberts:\\n\\\"RD. I want the reporter to read his answer about the brakes \\u2014 A. I was speaking about the wheels, if they should toe in, in front, it would break that, I am not talking about being in the road.\\n\\\"RD. You mean if both wheels turn towards the center the hose would break? A. If it was running along and the wheels ran together, the coach goes up and down, it would make the hose stretch, and would break the hose loose.\\n\\\"RD. It is your idea that the stretching of the springs broke it? A. That is what I believe.\\n\\\"RD. That would take a big bump? A. Yes, sir. So the wheels ran in.\\n\\\"RD. It is your idea the wheels toed in and that made the bus jump up, and that broke the hose? A. Yes, sir.\\n\\\"RD. Then any time you would run the bus into a depression and cause it to bump up, you are liable to break the hose? A. On a regular road it don't bump like that. A sudden jump of the front end with the wheels in like that would make it raise up, when the wheels toe in it is.\\n\\\"RD. That would make all of the bus go up? A. The springs would work.\\n\\\"RD. Now back to my original question, if you hit a depression and made the bus jump, that would break it too ? A. The coaches don't jump up like that from hitting bumps.\\n\\\"RD. You think they will not, but they do hit depressions that cause them to jump up, and that is liable to break the hose ? A. I never had one to do that.\\n\\\"RD. Will you answer by question? A. I have never known one to do that.\\n\\\"RD. It is just when they toe in that breaks it? A. Yes, sir, that is what I believe.\\\"\\nRe-Re-Direct Examination.\\nBy Mr. Ziegler:\\n\\\"RRD. You do know something was ivrong with the steering annaratus? A. Yes, sir.\\n\\\"RRD. You say the brakes AA'ould do no good after it got off the road? A. No, sir.\\\"\\nWe may remark here that the high degree of care required of a common carrier by motor bus applies Avith respect to keeping the brakes, or other equipment, in proper working order, and that the brakes failed to work at a critical moment is some evidence of negligence on the part of the carrier. 1 Blashfield's Cyclopedia of Automobile Law, p. 946.\\nDefendant examined one, and only one, other witness, viz: H. F. Jolley, an experienced bus driver in the employ of defendant, who was \\\"sitting behind the driver\\\" on-'the bus in question when the accident occurred. Jolley testified that he saw the front end of the bus \\\"jump up and cut around\\\" and he knew that \\\"something was wrong with the bus mechanically,\\\" but did not know at the time what the difficulty was;\\\" that after the accident he made an inspection of the bus to ascertain \\\"what the trouble was\\\" and he found that the metal spindle arm was broken; that the condition of the broken surface showed that it was a \\\"fresh break;\\\" that such a break of the spindle arm would absolutely deprive the driver of control of the bus and that it would disconnect the air brakes so that they would have no effect.\\nThe testimony of defendant's witnesses, George and Jolley, was to the effect that it was the rule and custom of defendant to inspect all buses before they left Atlanta, but neither of these witnesses could testify that this particular bus was inspected at Atlanta or Chattanooga on the day that this accident occurred, and plaintiff T. H. Patterson testified that he was in view of this bus at the station in Chattanooga from its arrival to its departure, and that it was not inspected there.\\nThe witness George stated that the bus was moving at a rate of speed \\\"between twenty and thirty miles an hour\\\" on the occasion of the accident, and further, that the bus had a sealed governor which prevented it from running at a greater speed than forty miles an hour; but, on cross-examination, he admitted that the bus was \\\"coasting\\\" down the mountain (or the ridge) when the accident occurred, and that the governor did not limit the speed when the bus was coasting.\\nThe witness Jolley likewise testified that the bus was going at a speed of \\\"between twenty and thirty miles an hour.\\\"\\nUpon the evidence, we think the rule res ipsa loquitur made a ease for the jury under the first, or common law, count of the declaration, and it was for the jirry to say whether the facts of the occurrence in question, as disclosed by the proof, was sufficient to sustain the plaintiff's allegations. Sweeney v. Erving, 228 U. S., 233, 57 L. Ed., 815, 819; Gill v. Brown, 130 Tenn, 374, 178, 169 S. W, 752; Memphis Street Railway Co. v. Cavell, 135 Tenn, 462, 470, 187 S. W, 179; Nashville Interurban Co. v. Gregory, supra, p. 431; North Memphis Savings Bank v. Union Bridge & Construction Co., 138 Tenn, 161, 188, 196 S. W., 492.\\nAs before stated, plaintiff T. H. Patterson testified that the bus in question was running at a speed of from forty to fifty miles an hour, which was some evidence of a violation of the Georgia statute which provided that no vehicle should run more than forty miles an hour.\\nMoreover, we think there was evidence from which the jury could conclude that the bus in question weighed more than 10,000 pounds, and therefore it was unlawful, in Georgia, for it to run at a greater speed than twenty-five miles an hour.\\nThe driver testified that the bus in question was designed to carry twenty-nine passengers, and, concerning its weight, he was asked and answered as follows:\\n\\\"Q. How heavy is that bus? A. I couldn't say.\\n\\\"Q. Do you have any opinion about it at all? A. No, sir, I don't pay any attention to that, all of that stuff is in the office, they keep a record there, the drivers don't have that, that is all in the office.\\n\\\"Q. Now then will it weigh over 10,000 pounds? A. I couldn't say.\\n\\\"Q. Have you any opinion? A. I imagine around 10,000 pounds.\\n\\\"Q. You imagine it will weigh 10,000 pounds or more? A.\\nI wouldn't be positive, for I don't know.\\\"\\nIt is thus seen that the driver thought the bus would weigh ' around 10,000 pounds,\\\" and he stated that the defendant had a record of the weight in its office. As the defendant had possession of the bus and a record of its weight, we think the jury might legitimately infer from the proof, in connection with the presumption arising from defendant's failure to disclose the pertinent evidence within its knowledge and control, that the bus weighed more than 10,000 pounds. Standard Oil Co. v. State, 117 Tenn., 618, 625, 672, 100 S. W., 705; Fisher v. Insurance Co., 124 Tenn., 450, 483, 138 S. W., 316; W. U. Telegraph Co. v. Lamb, 140 Tenn., 107, 111, 203 S. W., 752; Stafford v. Stafford, 1 Tenn. App., 477, 483; Citizens Bank v. Langford, 6 Tenn. App., 238, 243.\\nThe operation of the bus in violation of a penal statute was negligence per se, and it was for the jury to say whether such excessive speed was a proximate cause of plaintiffs' injuries. 22' R. O. L., pp. 148-149, see. 31.\\nIn some cases, there is a distinction between the proximate cause of an accident and the proximate cause of the injury resulting from the accident. 22 R. C. L., 115; Anderson v. Miller, 96 Tenn., 35, 33 S. W., 615, 54 Am. St. R., 812, 31 L. R. A., 604; Deming & Co. v. Merchants Cotton Press, etc., Co., 90 Tenn., 306, 17 S. W., 89, 13 L. R. A., 518.\\nIn the instant case, the plaintiffs were thrown against some parts of the interior of the bus with such force as to inflict cuts and bruises upon their persons. If the jury found that the bus was caused to leave the road, strike the telephone pole, and turn over, by the breaking of the spindle arm, it remained for the jury to decide, among other questions, whether the plaintiffs would have been in jured if the bus had not been running at an excessive and unlawful rate of speed, or, in other words, whether the breaking of the spindle arm or the unlawful speed was the proximate cause of the plaintiffs' injuries.\\nWithout further discussion, we find that there was evidence to support the verdict of the jury, and the defendant's first assignment of error is overruled.\\nIt may not be amiss to say here that in this opinion we have used the word \\\"accident\\\" in its \\\"loose and popular sense\\\" (Sweeney V. Erving, supra) rather than according to its strict definition.\\nThe second assignment of error is that \\\"the court erred in overruling defendant's motion to pass the cases, based upon the ground that the deposition of Dr. Harbin, which had been taken by interrogatories upon agreement, had not been returned, and the court erred in overruling defendant's motion for a new trial based upon this ground. ' '\\nUnder well settled rules the matter of passing or continuing cases is within the sound discretion of the trial court, and we find no evidence of an abuse of that discretion in this ease. The second assignment of error is overruled.\\nThe third assignment of error is that\\n\\\"The court erred in refusing to submit the following special issues of fact to the jury:\\n\\\" '(1) Was the bus that was involved in this accident and in which the plaintiffs were riding at the time of the accident being operated at an unreasonable or unsafe rate of speed or in excess of forty miles an hour;\\n\\\" '(2) Was the accident due to a latent defect of the bus itself, which a reasonable inspection would not disclose;\\n\\\" '(3) Was there any contributing cause to the accident except a latent mechanical defect which by reasonable inspection would not be disclosed.'\\n\\\"And the court erred in overruling the defendant's motion for a new trial based upon this ground.\\\"\\nIn the case of Life & Casualty Insurance Co. v. Robertson, 6 Tenn. App., 43, 53, it was held by this court that, in the absence of a statute applicable to the subject, it is within the power of the trial judge, in the exercise of a sound discretion, to direct the jury to return a special verdict in the form of answers to questions (as sought in the instant case), and in the later case of L. & N. Railroad Co. v. Frakes & Payne, 11 Tenn. App., 593, 621, it was held that the parties are not entitled, as a matter of right, to demand such a special verdict. Certiorari was denied by the Supreme Court in the first of the two cases just cited, and the latter case was affirmed by the Supreme Court after certiorari granted. The aforesaid ruling in the last cited ease controls the disposition of the third assignment of error here, and that assignment is overruled.\\nThe fourth (and last) assignment of error is that the verdict of the jury was so excessive as to show passion or caprice on the part of the jury.\\nThe verdicts in these cases have been approved by an able and impartial trial judge, who saw the parties and their witnesses and heard them testify. In the case of Power Packing Co. v. Borum, 8 Tenn. App., 162, 180, we said:\\n\\\"In a personal injury case, such as we are now considering, the law furnishes no standard by -which to measure the compensation to which a successful plaintiff is entitled, but confides the amount of the damages to be awarded to the judgment of impartial jurors, guided by the facts and circumstances of the particular case. Then, before the ease comes to this court, the verdict is subject to the scrutiny of the trial judge. As said in the case of Quinn v. Railway Co. (Minn.), 46 A. L. R., 1288: 'In determining whether a verdict is so excessive that a new trial should be granted, much responsibility rests on the trial judge. He is called upon to exercise a practical and sound discretion. This court does not readily substitute its judgment for his, for he is in a far better position to come to the right conclusion than we are. Properly enough, we defer to his judgment and do not interfere, unless it is fairly evident that he failed to keep the jury within the bounds of reason and common sense.' \\\"\\nAnd so, finding nothing in the record of the instant case which indicates that the jury was \\\"actuated by any improper motive or guilty of a reckless disregard of evidence\\\" we are content to let the amounts of the verdicts remain undisturbed, and the fourth assignment of error is overruled.\\nIt results that the judgments of the circuit court are affirmed, and judgments will be entered accordingly for the respective amounts of the judgments below, with interest thereon from the date of their rendition, and for the costs of the cause accrued in the circuit court. The costs of the appeal will be adjudged against the Greyhound Lines, Inc., and the sureties on its appeal bond.\\nCrownover and DeWitt, JJ., concur.\"}"

tenn/8511683.json

@@ -0,0 +1 @@
+"{\"id\": \"8511683\", \"name\": \"TALLENT et al. v. FOX\", \"name_abbreviation\": \"Tallent v. Fox\", \"decision_date\": \"1940-02-24\", \"docket_number\": \"\", \"first_page\": \"96\", \"last_page\": \"119\", \"citations\": \"24 Tenn. App. 96\", \"volume\": \"24\", \"reporter\": \"Tennessee Appeals Reports\", \"court\": \"Tennessee Court of Appeals\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-11T00:31:42.096021+00:00\", \"provenance\": \"CAP\", \"judges\": \"Crownover and Felts, JJ., concur.\", \"parties\": \"TALLENT et al. v. FOX.\", \"head_matter\": \"TALLENT et al. v. FOX.\\n141 S. W. (2d) 485.\\nMiddle Section.\\nFebruary 24, 1940.\\nCertiorari Denied by Supreme Court, June 8, 1940.\\nBennett Eslick, of Pulaski, A. Y. McLane, of Nashville, and Braly Craig, of Lewisburg, for plaintiffs in error.\\nThurman Thompson, of Lewisburg, and David Rhea, of Pulaski, for defendant in error.\", \"word_count\": \"9728\", \"char_count\": \"56154\", \"text\": \"FAW, P. J.\\nThis case is before this Court pursuant to a writ of error to the Circuit Court of Marshall County sued out by Will Tallent and Horace Sherrell, the defendants below, and to whom, for convenience, we will refer as defendants in this opinion. AYe will likewise refer to W. C. Fox, the sole plaintiff and the defendant in error here, as the plaintiff.\\nPlaintiff Fox is a resident of Marshall County, defendant Tallent is a resident of Giles County, and defendant Sherrell is a resident of Lincoln County; but they live within a few miles of each other.\\nThe action was begun on March 19, 1936, in the court of a Justice of the Peace for Marshall County, by the service of a warrant on defendant Tallent in Marshall County and the service of a counterpart warrant to Lincoln County upon defendant Sherrell.\\nThe plaintiff's cause of action stated in the warrants, as originally issued by the Justice of the Peace, was \\\"a plea due by damages by reason of delivering 65 hogs on March 13, 1936, diseased with cholera on plaintiff's farm representing said hogs to be sound.\\\"\\nThe Justice of the Peace rendered judgment in favor of the plaintiff and against the defendants for$450 and costs of this suit; whereupon the defendants appealed to the Circuit Court of Marshall County, where the case was tried to a jury, and the jury returned a verdict for the plaintiff and assessed his damages at $400, and judgment of the Court was entered accordingly. After their motions for a new trial and in arrest of judgment had been overruled, the defendants appealed in error to a former term of this Court, where (by an opinion filed and judgment entered on September 10, 1938) this Court held and adjudged that there was evidence to sustain the verdict of the jury, but that (under the pleadings on which the case had been tried below) there was reversible error in the admission of incompetent evidence and in the charge of the Court to the jury, and the judgment was reversed, the verdict was set aside, and the cause was remanded to the Circuit Court of Marshall County for a trial de novo.\\nIn the Circuit Court, after the remand, the plaintiff, by leave of the Court (but over the objection of the defendants), amended the original warrant by certain interlineations in the statement of the plaintiff's cause of action therein, and also by the addition thereto of a \\\"Second Count\\\" and a \\\"Third Count.\\\"\\nDesignating the original warrant, as amended, as the First Count, the averments of plaintiff's cause of action in the warrant on which the trial now under review was had, are as follows:\\nFirst Count.\\n\\\"To answer the complaint of W. C. Fox in a plea by damages by reason of delivering 65 hogs on March 13,1936, diseased with cholera on plaintiff's farm, which they had sold to plaintiff, representing said hogs to be sound and healthy, for a sum under $500.00.\\\"\\nSecond Count.\\n'1 And for this; to answer the complaint of W. C. Fox, in an action for damages in the sum of $499.99 for contracting to deliver to plaintiff, on the date of March 13, 1936, thirty or thirty-five head of hogs which had been seen by Mack Wheeler, in pen No. 1, at the stockyards in Pulaski, Tennessee, together with other hogs which were just as good, if not better, in sufficient numbers to make a total of sixty-five hogs, and instead, they substituted and delivered to plaintiff other hogs which were infected with cholera, in the place and stead of the hogs they had contracted to deliver.\\\"\\nThird Count.\\n\\\"And for this; to answer the complaint of W. C. Fox, in an action for damages, for a deceit, in the sum of $499.99 for fraudulently deceiving the plaintiff, on or about the date of March 13, 1936, in that the defendants sold to him sixty-five hogs representing them to be the same thirty or thirty-five hogs Mack Wheeler had seen in pen No. 1, at the stockyards in Pulaski, Tennessee, together with a sufficient number of other hogs, that was just as good, if not better, added to said group, to make the total number of sixty-five hogs, and plaintiff acted upon said representation and bought the said sixty-five hogs, when in fact the hogs delivered to plaintiff,' on said date, were other and entirely different bogs, that were infected with cholera and otherwise inferior to the hogs that had been represented to plaintiff, to be.\\\"\\nThe Trial Judge construed the First Count as alleging \\\"a breach of warranty; ' ' the Second Count as alleging 1 ' a breach of contract, ' ' and the Third Count as charging \\\"fraud and deceit;\\\" and, as a brief method of distinguishing the three counts, they have been thus characterized throughout the record and briefs.\\nEach of the defendants pleaded the general issue \\u2014 not guilty\\u2014 and defendant Sherrell also filed a special plea, verified by his oath, in which he averred \\\"that he was not a partner in the transaction of the sale of the hogs to W. C. Fox by Will Tallent and did not know anything about the trade, or any of the transaction, and had no connection with it in any way.\\\"\\nUpon the issues thus made, the case was tried to a jury, and the jury found in favor of the plaintiff and fixed his damages at $499.99; whereupon judgment of the Court was entered accordingly against the two defendants, and in favor of the plaintiff, or $499.99 and costs of the cause.\\nA joint motion for a new trial on behalf of the two defendants was overruled, and thereafter a motion in arrest of judgment on behalf of defendants was likewise overruled; whereupon the defendants prayed an appeal to this Court, which was granted by the Trial Court, and a transcript of the record was thereafter filed in this Court, but, it appearing that the two defendants had filed, as and for an appeal bond, a written obligation signed by said defendants alone, without sureties, which in the opinion of the Court was not an appeal bond in contemplation of law, and did not perfect their appeal, the appeal was dismissed and the cause was stricken-from the docket of this.Court. However, defendants Tallent and Sherrell were granted leave to withdraw the transcript then on file in this Court, it being represented by them, through their attorneys of record, that they desired to file the record for writ of error, and the record was thereafter duly filed, and bond given, for writ of error, and the case has been submitted to this Court upon the transcript of the record, assignments of error on behalf of the defendant Tallent and Sherrell, and briefs for the parties, respectively.\\nThere are twenty-six of the naked assignments of error, covering, approximately thirty-four typewritten pages. Obviously it would extend this written opinion beyond any reasonable length, and would serve no useful purpose, to set out all of said assignments of error verbatim herein. We will dispose of the questions presented by the assignments of error in the order which seems to us most appropriate, without following the order of their assignment.\\nDefendants' third assignment of error is that the Court erred in permitting the plaintiff to amend the warrant after the case was called for bearing, tbe said amendment stating three grounds of liability which constituted \\\"breach of warranty, breach of contract, and fraud and deceit.\\\"\\nThe assumption in the third assignment, supra, that the warrant was amended \\\"after the case was called for hearing\\\" is not supported by the record. It appears from the minutes of the Trial Court that, on application of the plaintiff and after argument of counsel for both plaintiff and defendants, the warrant was amended, by leave of the Court, in the manner hereinbefore stated, on November 25, 1938, and the case was called for trial, and the trial was begun on December 1, 1938. It is thus seen that counsel for defendants had six days notice of the allowance of the amendments before \\\"the case was called for hearing.\\\"\\n\\\"We find no error in the action of the Trial Court in allowing the aforesaid amendments to the warrant. Our statutes of jeofails are extremely liberal, and, upon application seasonably made (as in this case), a declaration may be amended by the insertion therein of any matter which would have been permissible if it had been contained in the declaration when originally filed.\\nIt is provided by the Code, section 8565 (Shan. Code, sec. 4439; Code of 1858, sec. 2748), that: \\\"Whenever the facts of the ease entitle the plaintiff to sue for breach of contract, or, at his election, for the wrong and injury, he may join statements of his cause of action in both forms, or either.\\\"\\nWhatever may have been the rule at common law, it was permissible, by virtue of the above quoted statute, for the plaintiff to join, in separate counts of the same declaration (or warrant), actions upon the facts of the case for (1) breach of warranty, (2) breach of contract, and (3) fraud and deceit. The several counts are not repugnant or antagonistic to each other. Bible v. Palmer, 95 Tenn., 393, 294, 32 S. W., 249; Louisville & N. Railroad v. Guthrie, 10 Lea, 432, 433. Independent of statute, it was so held in Shippen v. Bowen, 122 U. S., 575, 7 S. Ct., 1283, 30 L. Ed., 1172.\\nIn the opinion of this Court, speaking through Judge Crownover, on the former appeal of the instant case, it was said arguendo (as the point was not directly at issue) that, \\\"the plaintiff could have amended his pleading so as to sue in one count on a breach of warranty, in another for breach of contract, and in another for fraud and deceit;\\\" and authorities to the point -were there cited as follows: Tennessee Procedure in Law Cases (Higgins and Crownover), secs. 360 and 370; 24 R. C. L., page 242, Note 18; 55 C. J., pp. 832, 833, sec. 823; Williston on Sales, 2d Ed., page 1619, sec. 646; 14 Am. & Eng. Ency. Law, 2d Ed., p. 166. See also (on amendment after remand) Hunter v. Litterer, 1 Baxt. 168, 170. The defendants' third assignment of error is overruled.\\nThrough their twenty-fifth assignment of error, defendants assert that the statement in the warrant as issued by the Justice of the Peace is an insufficient statement of a cause of action and (the warrant) failed to state a cause of action even after amendment.\\nThis assignment of error is a copy of the twenty-fifth ground of defendants' motion for a new trial below. The sufficiency of the statement of the cause of action in the warrant cannot be tested by motion for a new trial.\\nDefendants made substantially the same question below by their motion in arrest of judgment, but they have not, in terms, assigned error upon the action of the Trial Court in overruling their motion in arrest of judgment.\\nHowever, if the twenty-fifth assignment be referred to the motion in arrest of judgment, we think it obvious that each of the \\u2022three \\\"counts\\\" in the warrant sufficiently states a cause of action.\\nMoreover, a motion in arrest of judgment \\\"is applicable only when there is no good count in a declaration.\\\" National Telegraph Institute v. Cassanova, 3 Tenn. Civ. App., 175, 182.\\nThrough their twenty-fifth assignment the defendants also seek to make the further question that, in suing for \\\"breach of warranty\\\" in the original warrant, the plaintiff \\\"made an election of remedies\\\" and could not thereafter amend the warrant by adding-counts on \\\"breach of contract\\\" and \\\"fraud and deceit.\\\" This might be true if the counts added by amendment were \\\"repugnant and antagonistic\\\" to the \\\"First Count,\\\" but, as we have held in disposing of the third assignment of error, they were not repugnant, and there was no \\\"election of remedies\\\" by the plaintiff which precluded his right to the amendments allowed by the Trial Court. The twenty-fifth assignment of error is overruled.\\nThe defendants' fourth assignment is that \\\"the Court erred in overruling the defendant's motion to require an election by the plaintiff as to the grounds or cause of action they were to rely (upon), by erroneously permitting the said cause to be heard and tried upon the three counts stated in the warrant.\\\"\\nIt appears from the bill of exceptions that, after the jury had been empaneled and sworn and plaintiff's counsel had read to the jury the warrant (including the aforesaid amendments), the defendants, through their counsel, moved the Court (in the absence of the jury) to require the plaintiff to elect on which count he was seeking a recovery. The Court overruled the motion, to which action of the Court the defendants excepted.\\nIf, as we have held, there was no legal inconsistence in the three alleged causes of action, it would not have been proper for the Trial Court to require the election thus sought by the defendants at the beginning of the trial and before the evidence was heard. Telegraph Institute v. Cassanova, supra, 3 Tenn. Civ. App., at pages 181, 182. Such requirement of an election would have been inconsistent with the rule under which the plaintiff was permitted to amend the warrant by the insertion of the two additional counts. The plaintiff was entitled to develop his case by competent evidence relevant to the cause of action stated in either one or more of the counts of the warrant. The fourth assignment of error is overruled.\\nThe fifth assignment is that the Court erred in declining to grant the defendant Horace Sherrell's motion for a directed verdict in his favor made at the close of the plaintiff's evidence.\\nIt does not appear, either upon the minutes of the Trial Court or in the bill of exceptions, that defendant Sherrell moved for a directed verdict at the close of the plaintiff's evidence. The only citation to the record (in the fifth assignment of error) is to the defendants' motion for a new trial, the fifth ground of which is substantially in the same language as the fifth assignment of error, supra. But the motion for a new trial was merely a pleading, and cannot be looked to as establishing the truth of its allegations, and it affords no sufficient evidence that there was such motion for a directed verdict at the close of the plaintiff's evidence. Overton v. State, 165 Tenn., 575, 579, 56 S. W. (2d), 740; Crosswy v. State, 157 Tenn., 363, 374, 8 S. W. (2d), 486; Tennessee C. Railway Co. v. Vanhoy, 143 Tenn., 312, 334, 226 S. W., 225; Richmond, etc., Foundry v. Carter, 133 Tenn., 489, 493, 182 S. W., 240; Sherman v. State, 125 Tenn., 19, 49, 140 S. W., 209; Frazier v. State, 117 Tenn., 430, 450, 100 S. W., 94.\\nMoreover, if a motion for a directed verdict on behalf of defendant Sherrell had been made and overruled at the close of plaintiff's evidence, he could not successfully assign error thereon, for the reason that he thereafter proceeded to put on witnesses in his own behalf and thereby waived his right to rely upon the motion then made. Tennessee C. Railway Co. v. Zearing, 2 Tenn. App., 451, 454, and other cases there cited. The fifth assignment of error is overruled.\\nThe sixth assignment is that the Court erred in declining to grant defendant Sherrell's motion for a directed verdict in his favor made at the close of all the evidence.\\nThe only citation to the record in the sixth assignment, supra, is to the motion for a new trial. '\\nHowever, we find at the close of all the evidence in the bill of exceptions the following recitals:\\n\\\"Mr. Eslick: Now, may it Please the Court, we desire for the record to show that we made or renewed our motion, made at the closing of the Plaintiff's proof.\\n\\\"The Court: Yes sir, and that the Court overruled your motion, and you excepted.\\n\\\"Mr. Eslick: Yes sir.\\n\\\"Thereupon, the Court charged the jury as follows:\\\" (Then follows the charge of the Court submitting the issues to the jury.)\\nAside from the motion for a new trial the above-quoted recitals are all that we find in the record pertaining to a motion of any kind made at the close of all the evidence, and there is no record from which we can ascertain the nature or form of the \\\"motion\\\" to which counsel refer as ' ' our motion made at the closing of the plaintiff's proof. ' ' Whether it was a motion for a directed verdict or for some other purpose, or, if a motion for a directed verdict, it was made on behalf of both defendants or only one of them, or was a general motion, or specified particular grounds on which it was rested (to which, on appeal, defendants would be confined. Tennessee C. Railway v. Zearing, supra, 2 Tenn. App., at pages 454, 455), are, on the record, all matters of speculation and conjecture.\\nThe appellate court will not review the rulings of the trial court on a motion unless the record discloses the motion, or, at least, discloses, with a reasonable degree of certainty, its substance and purport. The sixth assignment of error is overruled.\\nThrough their twenty-fourth assignment of error the defendants assert, in substance and effect, that the charge of the Court to the jury, as certified in the bill of exceptions, is not, in all respects, the charge actually given to the jury, and that there were errors in the charge as given which do not appear in the charge as it is authenticated in the bill of exceptions. The defendants sought to support this contention below by filing as an exhibit to their motion for a\\u2022 new trial, a document styled \\\"charge of the Court which counsel for defendants insist the court reporter took down and transcribed from his notes.\\\" The bill of exceptions, authenticated by the Trial Judge, contains an elaborate charge to the jury, which is immediately preceded by the recital that' ' the Court charged the jury as follows, ' ' and, for the purposes of review in this Court, the aforesaid exhibit to the motion for a new trial cannot be considered. It was so held, on a similar state of the record, in the case of Sherman v. State, 125 Tenn., 19, 46-51, 140 S. W., 209. The twenty-fourth assignment of error is overruled.\\nThe first, second, seventh and sixteenth assignments of error each embraces (and confuses) two distinct and inconsistent propositions. The first assignment is that \\\"there is no evidence to support the verdict and the evidence preponderates in favor of the defendant and against the plaintiff.\\\"\\nThe second assignment presents the same two propositions (no evidence and preponderance of evidence) with respect to-\\\"evidence of an express warranty in the sale of the hogs. \\\"\\nThrough the seventh assignment it is asserted that \\\"there is no evidence of partnership between the defendant Will Tallent and Horace Sherrell to support the verdict against defendant Horace Sherrell and the evidence preponderates in favor of defendant Horace Sherrell and against the plaintiff.\\\"\\nAnd the sixteenth assignment, although slightly different in phraseology, is, in substance and effect, the same as the seventh assignment, supra.\\n\\\"The rule requiring assignments [of error] is one of pleading.\\\" Wood v. Frazier, 86 Tenn., 500, 505, 8 S. W., 148, 149.\\nAn assignment asserting that there is no evidence to support the verdict of the jury is good as an assignment of error, and requires the appellate e'ourt to ascertain whether there was any material and substantial evidence before the jury which would support the verdict; but an assignment that the evidence preponderates against the verdict of the jury \\\"presents no question that can be considered by this court.\\\" Illinois Cent. Railroad v. Abernathey, 106 Tenn., 722, 728, 64 S. W., 3, 4. The latter rule has been announced and applied in so many reported cases that authorities might be multiplied almost without number.\\nIn 3 American Jurisprudence, pages 294, 295, section 704, it is said: \\\"As a general rule, only one point or subject should be embraced in an assignment of error. A joint assignment of error will be overruled unless sustainable on both grounds.\\\" However, we are not disposed to apply the strict rule thus stated to the four assignments of error now under consideration, but we will discard, as surplusage, the averments therein that the evidence preponderates against the verdict, and will treat these assignments as averring that there is no evidence to support the verdict of the jury \\u2014 the first and second assignments relating to the verdict against both defendants, and the seventh and sixteenth assignments relating to the verdict against defendant Sherrell alone.\\nIn such assignments of error, the phrase \\\"no evidence\\\" means no evidence of a material or substantial nature, as the \\\"scintilla rule\\\" does not obtain in this State. Brenizer v. Railway, 156 Tenn., 479, 484, 3 S. W. (2d), 1053, 8 S. W. (2d), 1099.\\nTwenty-nine witnesses testified at the trial below, and their testimony occupies four hundred typewritten pages of the transcript. We have carefully examined all of this testimony and find that there are sharp conflicts therein with respect to the material and controlling issues of fact. The credibility of the witnesses and the conflicts in their testimony were matters peculiarly within the province of the jury, and it is neither our duty nor our privilege, as an appellate court, to express an opinion concerning the greater weight of the evidence.\\nThere is no occasion for us to incorporate in this written opinion a review of all the testimony of the numerous witnesses in this voluminous record. The statute (Code, Section 10620) requiring written findings of fact has no application to a law case tried to a jury, and in such case it is not important that the opinion of this Court contain detailed recitals of the facts disclosed by the evidence. An assignment that there is no evidence to support the verdict of the jury presents a question of law, and not a question of fact, and, on certiorari, the Supreme Court will review the judgment of this Court upon the evidence in the record, without regard to our finding as to whether or not there is evidence to support the verdict. Darnell v. McNichols, 22 Tenn. App., pages 287, 291, 292, 122 S. W. (2d), 808; Melody v. Hamblin, 21 Tenn. App., 687, 704, 115 S. W. (2d), 237; Whitehurst v. Howell, 20 Tenn. App., 314, 329, 98 S. W. (2d), 1071. It is, therefore, unnecessary for this Court to state in the opinion filed \\\"all the separate and disjointed facts\\\" disclosed by the evidence. \\\"It is proper for it to state its conclusions of facts, without setting out the successive steps by which it reaches such conclusions, except wh\\u00e9n a statement of detached facts is necessary to properly raise and present questions of law that may be involved.\\\" Anderson County v. Hays, 99 Tenn., 542, 552, 553, 42 S. W., 266, 269.\\nIt may also be observed that it is not necessary to find that there was evidence to sustain all of the three \\\"counts\\\" of the warrant in this case, for the jury returned a general verdict, and such'verdict must be applied to that count which there was evidence to sustain. Tennessee C. Railway Co. v. Umenstetter, 155 Tenn., 235, 237, 291 S. W., 452; Sledge & Norfleet v. Bondurant, 5 Tenn. App., 319, 331.\\nIn his charge to the jury the learned Trial Judge undertook to state the contentions of the parties, respectively, and if he made a fair statement of the contentions of the plaintiff with respect to the facts applicable to either count of the warrant, and there was substantial evidence supporting such \\\"contention\\\" of the plaintiff, there was evidence to support the verdict, and it must be sustained, for, after a verdict of a jury has been approved by the trial judge, the appellate court takes as true the strongest legitimate view of the evidence in favor of the party successful below, and discards all countervailing evidence. Chattanooga Machinery Co. v. Hargraves, 111 Tenn., 476, 484, 78 S. W., 105; Three States Lumber Co. v. Blanks, 118 Tenn., 627, 631, 102 S. W., 79; Louisville & N. Railroad v. Hunter, 4 Tenn. Civ. App., 465, 469; Gray v. Kent, 5 Tenn. Civ. App., 519, 525; Power Packing Co. v. Borum, 8 Tenn. App., 162, 165. Authorities on this point might be multiplied indefinitely.\\nIn the course of an elaborate charge to the jury, the Trial Judge said:\\n\\\"It is the contention of the plaintiff W. C. Fox, that in March 1936, he had a transaction in regard to some hogs with the defendants; that, on March 10, 1936, he purchased from them 58 hogs, and paid for them by cheek drawn on the Farmers Bank of Cornersville, for $480.30, and he insists that this transaction was between him and the two defendants.\\n\\\"Thereafter, on March 13, 1936, on Friday, the defendant Will Tallent came to his home in this county, and proposed to sell him some more bogs; that tlie defendant Tallent represented that he had a certain number of hogs in Pulaski, Giles County, which he would sell him, the plaintiff insisting that he had not seen the hogs and desired some information about them, and he sent for Mack Wheeler, who was near plaintiff's premises, that he came and that Mr. Wheeler and the defendant Will Tallent discussed the sale of these hogs, which they did in his presence, and that the defendant Tallent on March 13th, proposed to sell him said hogs and, during this discussion, and as an inducement held out by the defendant Tallent, the defendant represented and stated to the 7)laintiff in the presence of Mr. Wheeler, the hogs, 65 in number, were nice, and that they were good thrifty hogs.\\n\\\"It is further the contention of the plaintiff that he informed the defendant Tallent that he dd not want any sick or diseased hogs on his premises, and it was stated by Wheeler in the presence of Tallent and plaintiff, that he had seen 30 or 35 hogs in the stock yards at Pulaski, and thereupon Tallent stated that those were part of the hogs he proposed to sell, and that Mr. Wheeler stated that they were nice hogs, and that the defendant also stated that he would add more to the number, making the total number 65, which he would sell and deliver to the plaintiff.\\n\\\"The plaintiff insists that the defendant Will Tallent made an express warranty as to the hogs by stating the hogs he proposed to sell and deliver were nice, good, thrifty hogs, and that he agreed to buy them, and that he did buy them and make a check to the defendant Will Tallent for $475.71, in payment for the hogs, and that this check, as plaintiff insists,,went into the hands of the defendant Sherrell, and he took it to the Bank at Fayetteville, the Union National Bank, and had it applied as a payment on a. note for about $600.00, which the Bank held against these defendants that is the plaintiff's insistence as to that matter. It is further insisted by the plaintiff, that the hogs were delivered on his premises, and put in his stock pen after dark, and that he did not have an opportunity to see them, and did not inspect them, and he paid for them, issuing the check for them. The next morning, he insists that he went out to the pen, and he discovered that the hogs appeared to be sick, some 12 or 15 of them piled up in a pile, did not get up, and ate very little; had the appearance of sick hogs.\\n\\\"He insists that during the day, March 14, one hog died, the next day another one died, that through or in the course of three weeks, or about that time, 50 hogs died; that they were infected with cholera and were diseased, and were infected with cholera, and were diseased at the time they were delivered by the defendant Tallent.\\n\\\"It is the further insistence of the plaintiff that these two defendants had bought these hogs from R. W. George and a man by the name of Chapman, and that Tallent gave his check for $410.00 for these hogs, and that this cheek was signed Tallent & Sherrell, by Will Tallent.\\n\\\"The plaintiff insists that the defendant Sherrell was connected with the transaction, had an interest in it. It is further insisted that the defendant Sherrell was a partner in this transaction with the defendant Tallent.\\n\\\"The plaintiff insisting that the defendant Sherrell expected to share in the profits of the transaction and sale, and would have shared in the profits of sale of the 65 hogs.\\n\\\"Further the plaintiff insists that he incurred considerable expense by reason of the hogs being delivered to him, on his premises, by the defendants.\\n\\\"\\u2022It is further the plaintiff's insistence that the hogs which Mack Wheeler had seen were not the hogs delivered to him; that the defendant Will Tallent, as plaintiff insists, did not deliver those hogs as he agreed and represented he would do, but he substituted other hogs for them, and as a result he was damaged, incurred expenses, and had to spend money on account of the sale and delivery of diseased hogs to his premises; that he had to disinfect his premises, and employ a Veterinarian, pay out money for his services, and had to incur expense in burning hogs that died. That he incurred expense in feeding and carrying water to some of the hogs which were sick, and that his business of raising hogs on his farm was injured, and he lost money by reason of having his farm infected with cholera.\\n\\\"If you find the contention of the plaintiff to be supported by a preponderance of the evidence, your verdict should be in favor of the plaintiff, and against the defendants one or both. ' '\\nWe find that the foregoing excerpt from the Court's charge contains a fair statement of the theory, or \\\"contentions,\\\" of the plaintiff as disclosed by his own testimony and other evidence in his behalf introduced at the trial below, and that there was material and substantial evidence to support the plaintiffs contentions thus stated. The verdict implies that the jury accepted the aforesaid evidence favorable to the plaintiff's contentions as the truth of the case, and, in our opinion, it was sufficient to support a verdict against both defendants. It results that defendants' first, second, seventh and sixteenth assignments of error are all overruled.\\nIn their nineteenth assignment of error the defendants copied that part of the charge \\\"as to the theory of the plaintiff in this case\\\" (which we have hereinbefore quoted in disposing of the first, second, seventh and sixteenth assignments of error, supra), and defendants assert that the part of the charge thus quoted was erroneous, in that, (a) it \\\"was conflicting and confusing, and inconsistent with the evidence, and thereby affected the result of the trial;\\\" (b) it \\\"laid too great emphasis and gave too much attention to the alleged theory of the plaintiff, all of which was prejudicial to the defendants;\\\" (c) that \\\"said instructions as to said theory affirmatively showed that the Court had an opinion in the case and that this opinion was in favor of the Plaintiff,\\\" and (d) \\\"the aforesaid instructions as to the theory of the plaintiff gave the plaintiff's theory too much attention, while on the other hand the theory of the defendants, as given was meager, brief and short.\\\"\\nWe do not think that the charge is subject to the criticisms thus offered; but it would serve no useful purpose to discuss these criticisms here, for the reason that, if the Trial Judge did not correctly interpret and state the theories of the parties, respectively, as presented by their pleadings, proof and argument of counsel (the sources from which the trial court ordinarily deduces the respective theories of the parties), it was the duty of the defendants, through their counsel, to call the matter to the attention of the Court at the time and request a correction; and a faihire to do so was a waiver of the error. National Hosiery & Yarn Co. v. Napper, 124 Tenn., 155, 169, 135 S. W., 780; Long v. Tomlin, 22 Tenn. App., 607, 623, 125 S. W. (2d), 171; Provident Life & Accident Insurance Co. v. Broome. 17 Tenn. App., 284, 290, 66 S. W. (2d), 1041; Elkin Motor Co. v. Ragland, 6 Tenn. App., 166, 174; Slattery v. Lea, 11 Lea, 9, 12; Malone v. Searight, 8 Lea, 91, 94; McColgan v. Langford, 6 Lea, 108, 117; Hayes v. Cheatham, 6 Lea, 1, 7. The nineteenth assignment of error is overruled.\\nThrough their twentieth assignment the defendants assert that an excerpt from the charge of the Court (which excerpt is quoted in the assignment) was erroneous. That part of the charge thus challenged related specifically to the first count of the warrant, and the Court thereby defined an express warranty in accord with section 7205 of the Code, and told the jury it was for them to say, from all the facts and circumstances, whether or not the defendant Tallent made an express warranty as to the soundness of the hogs. We find no error in these instructions. E. I. DuPont De Nemours & Co. v. E. L. Bruce Co., 174 Tenn., 148, 156, 161, 124 S. W. (2d), 243; McGregor v. Penn, 9 Yerg., 74, 78; Town of Franklin v. Engineering Co., 12 Tenn. App., 434, 439; Sullivan v. Bandy, 15 Tenn. App., 411, 413, 414; Waterbury 1. Russell, 8 Baxt., 159, 161, 162; Glover v. Holman, 6 Tenn. App., 178; D'Armond v. Baker, 10 Tenn. App., 28, 33; Williston on Sales, (2 Ed.), sec. 194. The twentieth assignment of error is overruled.\\nThrough their twenty-first assignment the defendants complain of a lengthy excerpt from the Court's charge, which excerpt is copied into the assignment. The principal criticisms of that part of the charge quoted in the twenty-first assignment are (1) that it invaded the province of the jury, and (2) that it was inherently contradictory and confusing.\\n\\\"We do not think the Trial Judge invaded the province of the jrtry by stating in his charge that \\\"if the plaintiff told the defendant Tal-lent that he did not want any diseased hogs and the defendant Tal-lent thereupon represented to the plaintiff that the hogs which he proposed to sell the plaintiff were nice hogs and good thrifty hogs, and thereby induced the plaintiff to purchase the hogs, and the hogs delivered to the plaintiff were unsound and infected with cholera, and diseased, the defendant Tallent would be liable whether he knew the hogs thus sold and delivered were unsound and infected with cholera or not. ' '\\nWhen the distinctions between the three causes of action averred in the three separate counts of the warrant (which were, we think, sufficiently pointed out in the charge) are observed, the charge is not contradictory or confusing, but correctly states the applicable law. The twenty-first assignment of error is overruled.\\nIt is asserted in the twenty-third assignment that the Trial Court erred in charging the jury as follows:\\n\\\"If the defendants were partners and W. C. Fox knew of the partnership and had recently dealt with them as partners in similar transactions, or a transaction, and you find that he as a reasonably prudent man had a right to think that he was dealing with the partnership on March 13, 1936, Horace Sherrell would be liable as a partner, even if as between the defendants themselves he had no interest in the transaction. ' '\\nThe excerpt above quoted is one of several paragraphs of the charge dealing with the law applicable to the issue of whether defendant Sherrell was or not liable as a partner of defendant Tallent.\\nIt appears from the record, without dispute, that the two defendants had been doing business as partners in the purchase and sale of hogs and cattle since February 6, 1934, and for that purpose they had a deposit and checking account in bank in the name of \\\"Tallent & Sherrell\\\" at the time of the transactions involved in this case, and that defendant Tallent had delivered to the person from whom he bought said hogs on the same day he sold them to plaintiff a check drawn by him and signed Tallent & Sherrell. It also appeax-s, without dispute, that defendant Tallent, acting for the partnership of Tallent & Sherrell, had sold to plaintiff fifty-eight hogs three or four days before the transaction here in controversy.\\nBut defendant Sherrell contended that his partnership with Tallent was limited to \\\"hogs or cattle for feeding purposes;\\\" and did not extend to the purchase of stock \\\"for immediate sale on the market.\\\"\\nThe plaintiff's contention was, in substance, that he had no knowledge or information of such limitation upon the partnership business; that the sale by Tallent to him (plaintiff) of the hogs in question was within the apparent scope of the business of the partnership and of the agency of Tallent as a partner, and that, upon the evidence, Sberrell was estopped to deny the authority of Tallent to bind him (Sherrell) as a partner.\\n\\\"The law of partnership is a branch of the law of agency. The functions, rights and duties of partners in a great measure comprehend those of agents, and the general rules of law applicable to agents likewise apply to partners. Accordingly the liability of one partner for the acts of his co-partners is founded on the principles of agency. ' ' 20 R. C. L., page 882.\\n\\\"Strictly speaking the power of a partner to act as agent is limited to transactions within the scope of the partnership business, and one partner is not bound by the unauthorized acts of a co-partner in a matter not within the apparent scope of the business of the partnership.\\\" Id., page 884.\\n\\\"Third persons are not as a rule bound to inquire whether the partner with whom they are contracting is acting on the partnership account, or for his individual advantage. The use by a partner of partnership monies to satisfy his personal debts may be sustained, if made to a person having no notice of the source whence the money came. Thus a partner's endorsement of the firm name for his private purposes, without the consent or knowledge of his co-partners, will, after the note has passed to a bona fide holder, bind the firm; and in general a contract will bind the partnership when it was made by a partner within the apparent scope of his authority, and the person dealing with the partner had no knowledge that such partner intended it for his individual benefit and was acting in violation of his obligations and duties to the firm.\\\" Id., pages 885, 886.\\n\\\"Third persons dealing with partners are not affected by private agreements between them of which they are uninformed, especially in the case of commercial partnerships, but may treat the partner as having authority to act in all transactions which from their nature appear to the world to be legitimately connected with the business of the partnership in which the firm is openly engaged, although in reality they exceed the terms of the partnership.\\\" Id., page 888.\\n\\\"The liability of a pai'tner for the acts of his co-partner may also rest on the principle of estoppel. Where one partner acts in the firm name without authority of his partners, the other partners may be estopped from denying his authority to do so. ' ' Id., page 891.\\n\\\"There is a good presumption that each individual partner is an authorized agent for the firm and that he has authority to bind the firm in carrying on the partnership transactions, and that he is empowered to do for the firm whatever is necessary for the transaction of its business, in the way in which that business is ordinarily carried on by other people. This is especially true in the ease of trading and commercial partnerships, and the presumption is sufficient to permit third persons to hold the firm liable on transactions entered into by one of the members of the firm acting apparently in its behalf and within the scope of his authority.\\\" Id., page 892.\\nThe general principles above quoted from Ruling Case Law are, in substance, embraced in the Uniform Partnership Law, carried into the Code of 1932, as sections 7841 et seq. Section 7843 enumerates certain \\\"Rules of Construction,\\\" and, among others, that \\\"the law of estoppel shall apply under this chapter\\\" and \\\"the law of agency shall apply under this chapter.\\\" See, also, section 7855, providing for the liability, under specified conditions of a \\\"partner by estoppel.\\\"\\nWe find no error in the excerpt from the charge quoted in the twenty-third assignment of error, and that assignment is overruled.\\nThe twenty-sixth assignment of error complains of three specified instructions in the charge of the Court to the jury.\\nImmediately following the statement in the charge of plaintiff's theory with respect to the facts of the case, the Court said: \\\"If you find the contention of the plaintiff to be supported by a preponderance of the evidence, your verdict should be in favor of the plaintiff, and against the defendants one or both.\\\"\\nThen immediately after stating the contention of defendant Tallent, the Court said: \\\"If you find that the contention of this defendant is not overturned or overcome by a preponderance of the evidence your verdict should be for the defendants. ' '\\nAnd later, in his charge, after stating the further contentions of the defendant Sherrell, the Court said: \\\"If you find that this contention is not overcome by a preponderance of the evidence your verdict should be in favor of the defendant Sherrell in this case.\\\"\\nIn support of this assignment it is argued for defendants, with some elaboration, that the instructions challenged by the twenty-sixth assignment, supra, \\\"had a tendency to tell the jury that the burden was on the defendants, not only to establish their contentions, but also to satisfy the jury by the weight or preponderance of the proof that their contentions were true.\\\"\\nIt seems to us that these criticisms of the charge are based upon a misconception of the meaning and import of the instructions thus criticised. In our opinion, they, each and all, clearly placed the burden upon the plaintiff to show by a preponderance of the evidence that his \\\"contentions\\\" were true and that the \\\"contentions\\\" of the defendants were not true. Thus interpreted, they were obviously correct. The twenty-sixth assignment of error is overruled.\\nThrough their assignments numbered eight to fifteen, both inclusive, the defendants assert that the Trial Judge erred in refusing to charge eight separate special requests for instructions tendered by defendants at the close of the general charge \\u2014 one of said requested instructions being copied into each of said eight assignments of error.\\nIt is a well settled rule that the trial judge will not be put in error for his refusal to charge a requested instruction unless it contains a statement of law applicable to the issues to be decided by the jury, wbicb statement bas not been covered by tbe general charge, and the requested instruction is strictly accurate throughout.\\nSix of the defendants' aforesaid requests for instructions (numbered 1, 2, 3, 4, 5, and 7) related, in one form or another, to the doctrine of implied warranties, which was not involved in the case. The plaintiff sued for the alleged breach of an express warranty, and there was no contention on behalf of plaintiff that he was entitled to recover upon implied warranty. In his general charge the Trial Judge made it plain to the jury, by statements repeated in different connections and in different forms throughout the charge, that the plaintiff was suing on an alleged express warranty, and not an implied warranty, one of which statements in the Court's charge was as follows:\\n\\\"The general rule of law is the buyer purchases at his peril, and there is no warranty implied by law on the part of the seller with respect to quality or soundness of the article sold, and the purchaser is not deceived by any fraudulent representation. Where the seller discloses all the knowledge and facts he possesss and the purchaser demands no warranty, the law presumes that the purchaser depends upon his own judgment in the transaction and such knowledge and facts he has obtained from the seller and from other sources. ' '\\nThe remaining requested instructions (numbered 6 and 8) presented the proposition that \\\"plaintiff could recover only the value of the hogs on the market that the evidence shows would have died if all the hogs had been vaccinated properly.'' The last mentioned two requests were properly refused by the Trial Judge \\\"because plaintiff does not sue to recover value of the hogs which were delivered by Tallent and thereafter died.\\\" The defendants' assignments of error numbered eight to fifteen, both inclusive are overruled.\\nThrough their seventeenth assignment of error the defendants say that the Trial Court erred in charging the jury after they had retired to consider of their verdict and had returned into Court with a request for further instructions. This assignment is predicated upon matters which appear in the bill of exceptions as follows:\\n\\\"After the jury retired they again returned to the Court room and requested the Court to read again a part of the charge which was delivered to them.\\n\\\"The Court: The foreman states that the jury desires the Court to read again part of the charge.' Do you have reference to the partnership matter ? Foreman of the Jury: No sir.\\n' ' The Court: In reference to what matter ? Foreman of the jury: Where the two men make a trade in selling sound articles, who is liable for it and one of them did not know it?\\n\\\"The Court: Yes. I have charged you this: If the defendant Tallent did not know that the hogs were diseased or unsound and made no express warranty as to soundness to the plaintiff the defendant Tallent would not be liable and the defendant Sherrell would not be liable.\\n\\\"If the defendant Tallent did not know the hogs were diseased and made no express warranty as to their soundness he would not be liable nor would the defendant Sherrell.\\n' ' I also charged you this: If the plaintiff W. C. Fox told defendant Tallent he did not want any diseased hogs on his premises, and the defendant Tallent represented to the plaintiff that the hogs that he proposed to sell the plaintiff were nice and good thrifty hogs, and thereby induced the plaintiff to purchase the hogs and the hogs delivered were in an unsound condition, infected with cholera and diseased, the defendant Tallent would be liable whether he knew the hogs sold and delivered were unsound and infected with cholera or diseased or not. In other words if the plaintiff said, 'I do not want any sick or diseased hogs,' and if the defendant Tallent said, 'I am going to sell you good, nice thrifty hogs, ' and thereby induced W. C. Fox to buy the hogs by that statement, the defendant Tallent would be liable upon an express warranty, whether he knew they were diseased or not, and defendant Sherrell would be liable, if he was a partner in the transaction. Of course he had a right to brag on his property and boost it as a matter of opinion, but if he made an express warranty and induced a person to buy he is bound by his warranty.\\n\\\"Gentlemen of the jury, you will retire and further consider your verdict. ' '\\nIt is seen that the Trial Court, at the request of the jury, simply repeated his instructions previously given upon one of the issues to be decided by the jury. In this there was no error.\\nIn Swaggerty v. Catron, 1 Heisk., 199, 202, the Court said: \\\"It is well enough, when a jury asks for a particular part of a charge upon an indicated subject, for the Court to repeat that part substantially as given.\\\" See, also, Abbott's Civil Jury Trials, (3 Ed.), page 730 et seq. The defendants' seventeenth assignment of error is overruled.\\nThe defendants' twenty-second assignment asserts that the Trial Court erred in charging the jury as follows:\\n\\\"If you find in favor of the plaintiff, you will next consider his damages, and his damages would be measured and determined in this ease, if you find in his favor, by his expenses reasonably and properly incurred in disposing of diseased hogs, his expenses reasonably and properly incurred in burning the hogs, in disinfecting his premises, and the services of a Veterinarian in the matter, and his expenses of disposing of the hogs otherwise, and you will further consider whether or not the plaintiff suffered loss or injury in his business of raising hogs on his farm, that is, such loss or injury as was proximately sustained by him, if any, in his business of feeding and producing hogs on his farm for and during such length of time as his farm was con-taminat\\u00e9d by cholera, if it was contaminated, as was reasonably necessary or required for disinfecting or freeing his premises from the disease, that is, if the bringing of the disease to his farm necessarily interrupted his business of producing hogs and of making money in the business of feeding and raising hogs, then his loss from his business being destroyed would be considered by you, or should be considered by you, in estimating or fixing his damages, and only for such length of time as was reasonably required or necessary for the farm to be freed from the disease, by proper diligence on the part of this plaintiff in such matter of disinfecting or freeing the farm from the disease. If you find in favor of the plaintiff you will award to him such an amount of damages, limited by the amount sued for, as will fairly and reasonably compensate him for the injuries he has sustained. ' '\\nIt is seen that the Trial Court did not include in the measure of damages the general rule applicable to a breach of a warranty of soundness in the sale of animals, t.o-wit: the difference between the actual value of the animals and what they would have been worth if as warranted. The plaintiff did not seek to recover such damages, as he had \\\"stopped payment\\\" on his check given for the hogs in question and he had not paid anything on the contract price.\\nBut, upon plaintiff's pleadings and proof, he was entitled to recover of defendants such damages as he had suffered as a natural consequence of the defendants' sale to him of the hogs infected with cholera. 24 R. C. L., page 256, par. 536, and page 266, par. 545; Dushane v. Benedict, 120 U. S., 630, 7 S. Ct., 696, 30 L. Ed., 810, 811; Joy v. Bitzer, 77 Iowa, 73, 41 N. W., 575, 3 L. R. A., 184; Smith v. Green, 23 Eng. Rul. Cas., 566; Note, 40 Am. Dec., 304; Note, 34 L. R. A. (N. S.), 699; Note, 15 Ann. Cas., 1008; Annotation, 51 A. L. R., 498, 507.\\nIn Dushane v. Benedict, supra, the Court said [120 U. S., 630, 7 S. Ct., 697, 30 L. Ed., 810] : \\\"The damages recoverable for a breach of warranty, or for a false representation, includes all damages which, in the contemplation of the parties, or according to the natural or usual course of things, may result from the wrongful act. For instance, if a man sells hay or grain for the purpose of being fed to cattle, or such as is ordinarily used to feed cattle, and it contains a substance which poisons the buyer's cattle, the seller is responsible for the injury [citing authorities] . So, if one sells an animal warranting or representing it to be sound, which is in fact infected with disease, he is responsible for the damages resulting from a communication of the disease to the buyer's other animals, either in an action of tort for the false representation [citing authorities]\\u2014 or in an action on the warranty, either in tort [citing authorities] or even in contract [citing authorities].\\\"\\nWe think there was evidence which justified the above quoted charge of the Trial Court with respect to the measure of damages, and that it was not erroneous. Defendants' twenty-second assignment of error is overruled.\\nThe defendants' eighteenth assignment of error is that \\\"the verdict is excessive and not responsive or supported by the evidence, all of which indicates partiality, passion and caprice on the part of the jury to the injury of the defendants. ' '\\nPlaintiff is a farmer and \\\"hog-raiser\\\" of \\\"forty years experience,\\\" and, on the morning following the delivery of the hogs to his farm at night, he discovered the fact that a number of the hogs thus delivered were apparently sick with cholera (which diagnosis was soon confirmed by a competent' veterinarian), and plaintiff promptly demanded of defendants that they come and \\\"take the hogs up\\\" and get them away from his farm (stating to defendants that the hogs would \\\"disease\\\" his \\\"place and hogs\\\"), but defendants declined to do so. Fifty of the hogs in question died of cholera on plaintiff's farm, and plaintiff sold the fifteen hogs that survived for $34.87.\\nIn his testimony plaintiff Fox enumerated items of damages resulting from delivery to his farm of the aforesaid cholera-infected hogs, which, according to his itemized estimates, aggregated $837.20. The plaintiff was examined and cross-examined at great length with respect to each and all of the aforesaid items of damage, and we think there is ample evidence from which the jury could find that the plaintiff suffered damages to the extent of $499.99 as the direct consequence of the delivery of said cholera-infected hogs to plaintiffs farm in the circumstances disclosed by the plaintiff's proof.\\nIn an Annotation on the subject of \\\"Extent of liability of seller of live stock infected with a communicable disease,\\\" in 51 A. L.R., pages 498-507, supra, numerous adjudged eases are cited as holding that, where there is a breach of an express warranty of soundness by the sale and delivery of animals infected with a communicable disease, the buyer may recover, as consequential damages, for (1) sums expended by him for veterinary service and medicine in his efforts to cure all the animals purchased and any of his other animals which became infected from the animals purchased; (2) loss of other animals of the plaintiff which became infected and died of the disease; (3) compensation to the buyer for extra feed and care of the animals purchased, due to their diseased condition; (4) compensation for the burial (burning fifty hogs in the instant case) of the animals that died from the disease; (5) the expense of disinfecting (in an effort to eradicate the disease) the premises wherein the diseased animals were kept; and (6) direct and proximate (but not speculative) injury to the business of the plaintiff.\\nThe plaintiff testified to items of damage falling within the classes mentioned in the next preceding paragraph which, according to his estimates, aggregate a greater sum than that allowed by the jury.\\n\\\"There is a clear distinction between the measure of proof necessary to establish the fact that the plaintiff has sustained some damage and tbe measure of proof necessary to enable tbe jury to fix tbe amount. Formerly, tbe tendency was to restrict tbe recovery to sucb matters as were susceptible of having attached to them an exact pecuniary value, but it is now generally held that the uncertainty which prevents a recovery is uncertainty as to the fact of the damage and not as to its amount and that where it is certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery. This view has been sustained where, from the nature of the case, the extent of the injury and the amount of damage are not capable of exact and accurate proof. Under such circumstances all that can be required is that the evidence with such certainty as the nature of the particular ease may permit lay a foundation which will enable the trier of facts to make a fair and reasonable estimate, and the plaintiff will not be denied a substantial recovery if he has produced the best evidence available and it is sufficient to afford a reasonable basis for estimating his loss. ' ' 15 Am. Juris., page 414, 415, sec. 23.\\nAlthough the nature of the instant case is such that \\\"the extent of the injury and the amount of damage are not capable of exact and accurate proof,\\\" we think the plaintiff's proof \\\"is sufficient to afford a reasonable basis for estimating his loss;\\\" and the defendants' eighteenth assignment of error is overruled.\\nIt results that all the assignments of error are overruled and the judgment of the Circuit Court is affirmed. Judgment will be entered here in favor of W. C. Fox, the plaintiff below, and against Will Tallent and H. E. Sherrell, the defendants below, for $499.99, with interest thereon from the date of the final judgment below (February 18, 1939), and for the costs of the cause accrued in the trial courts. The costs of the writ of error will be adjudged against defendants Tallent and Sherrell and the sureties on their bond for the writ of error.\\nCrownover and Felts, JJ., concur.\"}"

tenn/8511837.json

@@ -0,0 +1 @@
+"{\"id\": \"8511837\", \"name\": \"ADAMS et ux. v. WINNETT et ux.\", \"name_abbreviation\": \"Adams v. Winnett\", \"decision_date\": \"1941-04-19\", \"docket_number\": \"\", \"first_page\": \"276\", \"last_page\": \"284\", \"citations\": \"25 Tenn. App. 276\", \"volume\": \"25\", \"reporter\": \"Tennessee Appeals Reports\", \"court\": \"Tennessee Court of Appeals\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T22:21:40.537508+00:00\", \"provenance\": \"CAP\", \"judges\": \"Felts, and Howell, JJ., concur.\", \"parties\": \"ADAMS et ux. v. WINNETT et ux.\", \"head_matter\": \"ADAMS et ux. v. WINNETT et ux.\\n156 S. W. (2d), 353.\\nMiddle Section.\\nApril 19, 1941.\\nRehearing denied May 10, 1941.\\nPetition for Certiorari denied by Supreme Court, December 6, 1941.\\nCummings & Melton, of Woodbury, for complainants Adams.\\nSterling S. Brown, of Woodbury, for defendants Winnett.\", \"word_count\": \"3012\", \"char_count\": \"17163\", \"text\": \"CROWNOVER, P. J.\\nThe original bill in this cause was filed by J. F. Adams and wife against D. F. Winnett and wife to enjoin them from obstructing or interfering with the complainants' right of way over their property.\\nWinnett had conveyed to Cummings and Melton a lot in Woodbury, Tennessee (a long narrow strip of land), adjoining his property with right of egress and ingress over his property. Adams owned a lot in the same block, on a street running back 70 feet to the Winnett and Cummings and Melton lots, the rear of his lot abutting on the side of the Cummings and Melton property. Adams leased to the U. S. Government for a post office a building to be constructed by him on his lot. The Government required that the building have a rear entrance for mail trucks. Adams then bought from Cummings and Melton a strip of the rear of their lot, 6 feet wide and 57 feet long, the deed reciting that there is also conveyed a right of ingress and egress to and from said land over the Winnett property.\\nIt was alleged in the complainants' bill that they had made a proposal to the TJ. S. Post Office Department to erect a building on their lot to be leased to the Government for a post office; that by the terms of the proposed contract it was necessary to have access to the building from the rear; that they purchased this strip of land from Cummings and Melton, who conveyed to them such right of ingress and egress as they had, for a rear entrance to the post office; that the defendants were threatening to obstruct said right of way by erecting locked gates and other obstructions to prevent their use of the building as a post office which would cause the Government to cancel their lease.\\nThe defendants Winnett answered the bill and alleged that the complainants Adams had no right of way over their lands, as the conveyance of a strip of land 6 feet wide was not of sufficient value to impose a burden of easement upon the servient estate of the defendants; that if the complainants did acquire a right of way over the lands of the defendants, it was a right limited only to the service of that strip of land purchased from Cummings and Melton, and did not extend to the post office and the adjoining theatre buildings; that the small strip of land was acquired for the fraudulent purpose of adding additional burdens to their property.\\nThe defendants admitted that they were preparing to erect fences and gates across the right of way granted to Cummings and Melton, and they alleged that they had a right to erect and maintain them; that they had fences and gates across the right of way when the same was conveyed to Commings and Melton, who accepted it with such obstructions.\\nThe defendants, in their answer, stated that they reserved the right to ask the court to treat their answer as a cross-bill if during the progress of the cause they deemed it necessary to do so.\\nIt was never filed as a cross-bill and no process was served on the complainants.\\nA temporary injunction was granted the complainants.\\nThe defendants moved the Court to dissolve the injunction, which motion was overruled.\\nThe cause was heard on oral evidence to a jury. The following issues of fact were submitted to the jury:\\nNo. 1. Does the proposed use of the right-of-way in question by the complainants for ingress and egress to the rear of the post office building of complainant, materially increase the burden and impose new and additional burdens on the right-of-way as insisted by defendants, and inconsistent with the purpose and character of the original grant of said right-of-way to Cummings and Melton, the complainant's grantor?\\nNo. 2. Would the erection of gates as proposed by the defendant unreasonably interfere with the right of the complainant in the use of the right-of-way in question?\\nAt the close of the complainants' evidence and again at the conclusion of all the evidence, the defendants moved the Court to withdraw the issues from the jury and enter a decree in their favor, which motions were overruled.\\nThe jury answered \\\"yes\\\" to both issues.\\nThe defendants Winnett filed a motion for a decree non obstante veredicto dissolving the temporary injunction and enjoining the complainants from using said right of way, which motion was overruled.\\nThe complainants Adams moved the court to disregard issue No. 1 and render decree on issue No. 2 in accordance with the verdict of the jury.\\nThe Chancellor overruled both potions. Whereupon the de-, fendants moved the court to set aside the verdict of the jury, which was treated as a motion for a new trial and overruled, and the complainants moved in arrest of judgment, which motion was overruled.\\nThe Chancellor then rendered a decree that the original bill be sustained; that the temporary injunction be made permanent and perpetual so as to prohibit the defendants from erecting gates or obstructions across the right of way in question, as the complainants had certain rights over said right of way acquired under their deed from Cummings and Melton, which would unreasonably be interfered with by the erection of gates, but that complainants had no right of way for mail trucks and other uses in connection with the post office and theatre, as this would unreasonably increase the burden on the right of way, and is inconsistent with the use contemplated in the original grant. He decreed that the complainants had the right of ingress and egress to the portion of the Cummings and Melton lot which they acquired by their deed from Cummings and Melton, but not for use in connection with the post office and theatre.\\nBoth complainants and defendants excepted to said decree and appealed to this court. The defendants filed a bill of exceptions.\\nThe complainants Adams have assigned errors, which are, in substance, as follows:\\n(1) The Chancellor erred in submitting to the jury issue No. 1\\u2014 whether the proposed use of the right of way by the postoffice increased the burden on the right of way \\u2014 because it is a legal question and not a question of fact.\\n(2) The Chancellor erred in not sustaining the complainants' motion in arrest of judgment on the ground that the verdict and judgment on issue No. 1 are not responsive to the pleadings.\\nThe defendants have assigned errors, which are, in substance, as follows:\\n(1) The Chancellor erred in submitting to the jury issue No. 2\\u2014 whether gates would interfere with the complainants' use of the right of way.\\n(2) The Chancellor erred in decreeing that the complainants had acquired any easement over and across the lands of the defendants.\\nThe complainants have filed in this court a motion to strike the bill of exceptions on the ground's: (1) It does not recite that it contains all the evidence. It recited: \\\"This was all the evidence submitted to the jury upon the trial of this cause.\\\" (2) Maps and diagrams used in the examination of witnesses and sent up with the record are not authenticated by the Chancellor.\\nThere is nothing in the first contention. The jury are the triers of facts. The statement at the close of the evidence that it was all the evidence submitted to the jury is sufficient.\\nBut where maps and exhibits to evidence are not authenticated by the Chancellor, the bill of exceptions is imperfect and should be stricken. Central Produce Co. v. General Cab Co., 23 Tenn. App., 209, 129 S. W. (2d), 1117; Southern Ry. Co. v. Underwood, 8 Tenn. App., 142; Cosmopolitan Life Ins. Co. v. Woodward, 7 Tenn. App., 394.\\nThe clerk and master did not certify to tbe correctness of the bill of exceptions. There is a certificate to the technical record, but none covering the bill of exceptions. This is also a fatal defect.\\nThe defendants Winnett's motion for a new trial was not spread upon the minutes of the court. It was included in the bill of exceptions, but the bill of exceptions has been stricken, hence we cannot consider the motion for a new trial.\\nThe complainants did not file a motion for a new trial.\\nAs the bill of exceptions has been stricken from the record, it follows that we cannot consider errors which are based upon the facts of the case.\\nThe complainants Adams' first assignment of error is based on the facts of the ease \\u2014 whether the use of the right of way by the post office increased the burden upon the servient estate. It was a proper issue, under the pleadings, to be submitted to the jury, and the jury has returned a verdict that it did increase the burden. In the absence of a bill of exceptions we must presume that there was sufficient evidence to support the verdict. Cosmopolitan Life Ins. Co. v. Woodward, 7 Tenn. App., 394.\\nThe complainants' second assignment, that the Chancellor erred in not sustaining the complainants' motion in arregt of judgment on the ground that the verdict and judgment on issue No. 1 are not responsive to the pleadings, is not well made, as the question was raised in the complainants' bill and denied by the answer.\\nThe complainants insist that the defendants filed no cross-bill asking for affirmative relief. If the defendants had filed their answer as a cross-bill they would have been entitled to an injunction prohibiting the complainants from using the easement for post office and theatre purposes; but under the bill and answer the issue was proper, and the defendants \\u2022 are entitled to a decree declaring their rights. Under the verdict on this issue the complainants have no right to use the right of way for post office and theatre purposes as it will add to the burdens of the easement.\\n\\\"The use of an easement must be confined strictly to the purposes for which it was granted or reserved. A principle which underlies the use of all easements is that the owner of an easement cannot materially increase the burden of it upon the servient estate or impose thereon a new and additional burden.\\\" 17 Am. Jur. 996, sec. 98.\\n\\\"A fundamental principle is that ah easement for the benefit of a particular piece of land cannot be enlarged and extended to other parcels of land, whether adjoining or distinct tracts, to which the right is not attached. In other words, an easement appurtenant to a lominant tenement can be used only for the purposes of that tenement; it is not a personal right, and cannot be used, even by the lominant owner, for any purpose unconnected with the enjoyment of his estate. The purpose of this rule is to prevent an increase of the burden upon the servient estate, and it applies whether the easement is created by grant, reservation, prescription, or implication. ' ' 9 R. O. L., 786, sec. 43; Jones on Easements, secs. 99 and 100.\\n\\\"A principle which underlies the use of all easements is that the owner thereof cannot materially increase the burden of it upon the servient estate, nor impose a new and additional burden thereon. . It may be said in general that if an easement is put to any use inconsistent with the purpose for which it was granted, the grantee becomes a trespasser to the extent of the unauthorized use.\\\" 9 R. C. L.-, 790, sec. 47; Jones on Easements, secs. 99 and 100.\\n\\\"(a) (1) An easement was imposed on certain land in favor of a lot called therein for convenience the 'pink land,' and afterward a building was erected partly on such 'pink land' and partly on adjoining premises called the 'white land,' which was not subservient to the easement. It was desired to use the building for manufacturing purposes and to use this easement for hauling and freight traffic for the benefit of all the building. The court refused such use. Harris v. Flower, 74 L. J. Ch., 127. (2) A partition deed embracing a number of lots contained a provision that a certain alley should 'forever be left open . as a means of ingress and egress for the advantage of all the property hereinbefore conveyed and partitioned.' Afterward the Broad Exchange Company acquired title to one of such lots and to certain other lots not included in such partition deed, and proceeded to erect on all of such lots a large office building, designed for the accommodation' of some seven thousand occupants. The heat and power plant was located on the premises dominant to the easement. The coal, ashes, paper, and sweepings of the entire building were conveyed through the alley. The court issued an injunction against the owner of the building and its agents from using the easement until such time as the building should be, so arranged as to permit the use of the easement for the advantage of the dominant tenement only. McCullough v. Broad Exch. Co., 101 App. Div. 566, 92 N. Y. S., 533, affirmed 184 N. Y., 592, 77 N. E. 1191.\\n\\\"(b) An automobile garage was erected on two lots, one of which was entitled to an easement over an alley connecting with the streets. The automobiles from the garage, both that part situated on the land dominant to the easement and that part not on such land, passed in and out of the alley. The court held that the proprietor of the garage might use the alley as appurtenant to that part of the garage dominant to the easement, but not as a means of ingress or egress to and from the other portion of the garage by means of the portion which was dominant. Diocese of Trenton v. Toman, 74 N. J. Eq., 702, 70 A., 606.\\\" 19 C. J., 980, note 76 to sec. 227.\\n\\\"Grant or reservation of easement in general terms is limited to use which is reasonably necessary and convenient, and as little burdensome to servient estate as possible for use contemplated.\\\" Horton, v. Shacklett, 20 Tenn. App., 72, 95 S. W. (2d), 936, syl. 1.\\n\\\"Where easement is not specifically defined, it need be only such as is reasonably necessary and convenient for purpose for which it was created. ' ' Horton v. Shacklett, supra, syl. 2.\\nThe defendants have a remedy against the complainants for the trespass and may be entitled to an injunction to prohibit trespass if complainants continue to use the easement for post office and theatre purposes.\\nIt results that the Chancellor was not in error in refusing to sustain the complainants' motion in arrest of judgment, and this assignment must be overruled.\\nThe defendants' first assignment of error must be overruled. The question whether the defendants should be allowed to erect gates was raised in the bill and the answer, and the issue was properly submitted to the jury. In the absense of a bill of exceptions we must presume that there was evidence to sustain the verdict.\\nThe defendants' second assignment of error, that the Chancellor erred in decreeing that the complainants had acquired an easement over and across the lands of the defendants, must be overruled.\\nAs decreed by the Chancellor, the complainants Adams have rights of ingress and egress to the six-foot strip of land purchased by them from Cummings and Melton but not to the rest of the post office and theatre buildings. 19 C. J., 979, 980, sec. 227.\\nIt results that all the assignments of errors are overruled and the decree of the Chancellor is affirmed. The decree as to the costs that accrued in the lower court will be affirmed. The costs of the appeal will be divided; one-half will be decreed against the complainants and the sureties on their appeal bond and one-half against the defendants and the sureties on their appeal bond.\\nFelts, and Howell, JJ., concur.\"}"

tenn/8511953.json

@@ -0,0 +1 @@
+"{\"id\": \"8511953\", \"name\": \"CLEMENTS v. HOLMES et al.\", \"name_abbreviation\": \"Clements v. Holmes\", \"decision_date\": \"1938-05-07\", \"docket_number\": \"\", \"first_page\": \"230\", \"last_page\": \"239\", \"citations\": \"22 Tenn. App. 230\", \"volume\": \"22\", \"reporter\": \"Tennessee Appeals Reports\", \"court\": \"Tennessee Court of Appeals\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T19:22:29.551681+00:00\", \"provenance\": \"CAP\", \"judges\": \"Senter and Ketehum, JJ., concur.\", \"parties\": \"CLEMENTS v. HOLMES et al.\", \"head_matter\": \"CLEMENTS v. HOLMES et al.\\n120 S. W. (2d) 988.\\nEastern Section at Knoxville.\\nMay 7, 1938.\\nPetition for Certiorari denied by Supreme Court, October 15, 1938.\\nS. E. N. Moore, of Knoxville, for complainant.\\nNorman B. Morrell, of Knoxville, for defendants.\", \"word_count\": \"3534\", \"char_count\": \"20290\", \"text\": \"\\u2022 ADAMS', S. J.\\nThis is an appeal by defendant Clarence M. Holmes from an adverse decree of the Chancery Court of Hamilton County.\\nOn May 25, 1934, in the case of Mertie C. Holmes v. Clarence M. Holmes, in the Juvenile and Domestic Relations Court of Knox County, a decree was pronounced awarding Mrs. Holmes an absolute divorce and exclusive custody of her minor daughter, Elinor Marion Holmes. The decree was entered on the records of that Court in Minute Book No. 5, pages 89-91, a certified copy of which was filed in evidence. Title to certain real estate was vested by said decree in Mrs. Holmes as alimony in solido, and any interest that she may have had in certain other real estate belonging to defendant and situated at 5008 Rossville Boulevard in Hamilton County, was divested out of her and vested in Clarence M. Holmes, said real estate being further described as follows:\\n\\\"Lot No. 8 in Block No. 1 in M. E. Stone's Sub-division East End, as shown by plat of record in the Register's office of said County, in Plat Book No. 6, Page 9, to which reference is here made. The line between Lots 7 and 8 being in the center of the wall not standing tin said line.\\\"\\nIt was further decreed that Clarence M. Holmes should pay to Mertie C. Holmes the sum of Twenty Dollars ($20) per month for the support and maintenance of her minor daughter for a period of ten years, and a lien was declared against the title to and income from said real estate situated at 5008 Rossville Boulevard, above described. An attorney's fee of Two Hundred Fifty Dollars ($250) was awarded Hal IT. Clements, as Mrs. Holmes' solicitor in that cause, and a lien was declared against the title to and income from said real estate situated at 5008 Rossville Boulevard, above mentioned, to secure the payment of said fee by defendant, which lien was subject to the prior lien to secure the $20 per month awarded for the support of the minor child.\\nThe original bill in the instant ease was filed by Hal H. Clements against Clarence M. Holmes and Hamilton National Bank (the bank is not now involved in the cause), and prayed that the judgment of the Domestic Relations Court of Knox County in his favor for Two Hundred Fifty Dollars ($250) be made a judgment of the Chancery Court of Hamilton County, and that complainant be given a decree against Holmes for said sum, together with interest thereon from the date of said former decree, and that a lien be declared and enforced on the Rossville Boulevard property, above described, and that the property be sold for the purpose of satisfying the lien.\\nThe defendant Holmes in this cause answered and denied all liability in the matter and all material allegations of the bill, and filed a cross-bill and prayed for a judgment against cross-defendant, Hal H. Clements, for Three Hundred Dollars ($300), being the amount alleged to have been collected by the said Hal IT. Clements as a fee in the same cause, out of funds and property of the cross-complainant. Denial was made that any legal or proper decree was ever entered against him in the Juvenile and Domestic Relations Court of Knox County, but on the other hand, that said decree as entered was obtained through fraud and perjured testimony and was therefore void; that said decree was being contested because of the fraud and perjury, and denied that there was any legal, final, or just decree of any court upon which complainant could base his claim for Two Hundred Fifty Dollars ($250).\\nThe fifth and sixth assignments of error are directed to the action of the court in permitting the introduction of said final decree for divorce with their pleading and as evidence, because the decree was not sustained by a certified copy of the entire record and proceedings upon which said decree was based, and also because the decree was not properly and legally certified by the Clerk of the Domestic Relations Court of Knox County, Tennessee, nor by the Judge of said court. The determination of these two assignments of error will dispose of defendant's first assignment of error directed to the action of the court in not sustaining a demurrer to the original bill on the ground that complainant should have filed a certified copy of the court proceedings, including the decree, with his original bill. This objection is based upon Section 9755 of Williams Tennessee Code (1934), which is as follows:\\n\\\"In any litigation, certified copies of final judgments or decrees of any court of record may be used as evidence in such litigation, without said final judgment or decree being supported by the entire record upon which it is based; provided, that this statute shall not apply to litigation in which a direct attack is made on said judgment or decree and the proceedings upon which it is based, nor to litigation involving the validity of said judgment or decree; and provided further, that this statute shall not prevent any of the parties to the litigation from using as evidence in such litigation the entire record upon which said final judgment or decree is based (1919, ch. 130, sec. 1, Modified).\\\"\\nDefendant contends that by his answer and cross-bill a direct attack is being made upon the decree of the Juvenile and Domestic Relations Court of Knox County, and that there is a direct attack being made upon the proceedings upon which said decree was based, and this litigation involves the validity of said decree.\\nIn support of this contention defendant cites as authority the cases of King v. Cox, 126 Tenn. 553, 151 S. W. 58; Willis v. Louderback, 5 Lea 561; Smith v. Hutchison, 104 Tenn. 394, 58 S. W. 226; Railway Co. v. Seymour, 113 Tenn. 523, 83 S. W. 674; and Givens v. State, 103 Tenn. 648, 661, 19 Pickle 648, 661, 55 S. W. 1107. It is true that these cases all affirm the rule that it is error to permit a decree in another cause to be read in evidence, when objection is made upon the ground that the entire record should be produced, especially when the record is essential to make out the plaintiff's case. Under the authority of these cases defendant's objection to the introduction of the decree unaccompanied by a copy of the record would be good, but defendant overlooks the obvious fact that Chapter 130 of the Public Acts of the General Assembly of the State of Tennessee for the year 1919 as modified and carried into the Code at Sections 9755 and 9756, was passed for the express purpose of modifying the rule of evidence an- nouneed and approved in tbe above cases. Tbe intention of tbe Legislature is clearly expressed in Section 9756 of tbe Code:\\n\\\"Such certified judgment or decree shall have tbe same force and effect as evidence as it would have in case tbe entire record upon which it is based were filed with the judgment or decree, it being tbe intention to expedite tbe preparation of cases and save costs. (Ib., sec. 2, Modified.)\\\"\\nIn tbe instant case no direct attack is being made upon the decree of the Juvenile and Domestic Relations Court of Knox County. In tbe case of Jordan v. Jordan, 145 Tenn. 378, 239 S. W. 423, tbe Court bad before it tbe question of what constitutes a direct attack on a judgment and in disposing of tbe question cites with approval tbe following authorities:\\n\\\" 'If an action or proceeding is brought for tbe very purpose of impeaching or overturning a judgment, it is a direct attack upon it, such as a motion or other proceeding to vacate, annul, cancel or set aside a judgment, or any proceeding to review it in an appellate court, whether by appeal, error, or certiorari, or a bill of review, or, under some circumstances, an action to quiet title. On the other band, if the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may be important, or even necessary to its success, then the attack upon the judgment is collateral.' 23 Cyc., 1062.\\n\\\"In 15 R. C. L., 839, Section 312, tbe author says:\\n\\\" (A direct attack on a judgment is an attempt to amend, correct, reform, vacate, or enjoin the execution of the same in a proceeding instituted for that purpose. In general any statutory method for the purpose of avoiding or correcting a judgment is a direct attack, and it is usually held that a motion to open or vacate a judgment is a direct attack thereon, though it has been contended by some writers that such a motion, unless made during the term or within some time specified in a statute authorizing it, should be supported only by the record, and therefore should be regarded as a collateral rather than a direct attack. . . .'\\n\\\" 'A direct attack upon a judgment is by appropriate proceedings between the parties to it, seeking for sufficient cause alleged, to have it annulled, reversed, vacated, or declared void.' 7 Ency. Dig. [Tenn. Rep., p. 647.]\\\"\\nIn 34 C. J. 522, par. 828, it is said:\\n'A proceeding to enforce a judgment is collateral to the judgment, and therefore no inquiry into its regularity or validity can be permitted in such a proceeding, whether it is a direct action on the judgment, or on a note given in satisfaction of the judgment, or a proceeding to revive the judgment, or proceedings supplementary to execution. . . .\\\"\\nThe original bill was filed in this cause for the purpose of enforcing the former judgment of the Juvenile and Domestic Relations Court of Knox County, and is collateral to that proceedings. A direct' attack upon the validity of a decree or judgment cannot be made in the defendant's answer to a bill filed for the purpose of enforcing the decree. Although defendant's cross-bill is not a direct attack upon the decree, if it could be so considered then the cross-complainant becomes the moving party and the burden of introducing the certified record including the decree would rest upon him.\\nThere was no error on the part of the Chancellor in admitting as evidence the certified copy of the decree of the Juvenile and Domestic Relations Court of Knox County.\\nThe second section of the sixth assignment of error challenges the decree because not properly and legally certified by the Clerk of the Juvenile and Domestic Relations Court of Knox County. The certificate in question is as follows:\\n\\\"State of Tennessee\\n\\\"County of Knox\\n\\\"I, J. A. Shackelford Clerk of the Domestic Relations Court for Knox County, Tennessee, do hereby certify that the foregoing is a true, full and complete copy of the Final Decree of divorce granted in the ease of Mertie C. Holmes vs Clarence M. Holmes, No. 1627 as same remains of record in my office in Minute Book No. 5, pages 89-90 and 91.\\n\\\"In testimony whereof I place my hand and seal of office this 1st day of July 1936.\\n\\\"J. A. Shackelford\\n\\\"(Seal) Clerk\\\"\\nThis certificate appears regular in every respect, and there is no proof in the record that J. A. Shackelford is not the Clerk having custody of the records of the Juvenile and Domestic Relations Court of Knox County. In defendant's brief it is stated that the decree is signed by \\\"J. A. Shackleford by (his deputy) Edgar W. Murray, Deputy Clerk. \\\" It is noted in the above quotation that the name \\\"Shackelford\\\" is erroneously spelled \\\"Shakleford,\\\" and the name \\\"Edgar W. Murray\\\" is used when it should be \\\"Edgar W. Merritt.\\\" It is probable that these mistakes made in defendant's brief give rise to the idea that there is no such Clerk. The certified copy of the decree introduced by complainant is certified in person by J. A. Shackelford. The other decree from which the erroneous quotation is taken appears later in the record and it is not disclosed by whom it was filed. In the absence of reliable proof that J. A. Shackelford is not the Clerk it is to be conclusively presumed that he is the Clerk and keeper of the records.\\nTherefore the fifth and sixth assignments of error are overruled. As previously stated, this disposes of the first assignment of error, \\u2022as it was not, necessary for complainant to have filed with his original bill a certified copy of the record supporting the decree under consideration.\\nThe second assignment of error is as follows:\\n\\\"The court should have sustained the second ground of the demurrer and have required the original complainant to have alleged that he had not received his compensation for filing the divorce suit referred to.\\\"\\nThe bill particularly alleges in the second section that defendant Holmes had not paid complainant the fee of Two Hundred Fifty Dollars ($250), nor any part thereof, but that the same is justly due from the defendant to complainant, together with interest thereon. There is no merit in this assignment of error, and it is accordingly overruled.\\nAppellant's third assignment of error is as follows:\\n\\\"The trial court erred in' over-ruling the motion to dismiss the petition filed by the said Mertie C. Holmes, said motion should have been sustained.\\\"\\nNo particular reason is advanced nor authorities cited as to why the court was in error in overruling this motion. It is well settled that a third party having an interest in property in litigation may intervene and have her interest declared and rights enforced. Gibson's Suits in Chancery, Par. 794; Williams Tennessee Code (1934), Sec. 8623, and annotation following; Bank of McKenzie v. Manley, 13 Tenn. App. 630.\\nThe petitioner Mrs. Mertie C. Holmes averred that the lien awarded her for the support and maintenance of her daughter was a superior lien to that of complainant Hal H. Clements, on both the real estate and the rents collected and accumulated in the hands of Hamilton National Bank. This contention was sustained by the Chancellor and the Three Hundred Dollars ($300) in the hands of the Hamilton National Bank was ordered paid over to petitioner as the natural guardian of her infant daughter, Elinor Marion Holmes, to be used for her benefit. There was no error in the action of the Chancellor in this regard, and this assignment is overruled.\\nAppellant's fourth assignment of error is as follows:\\n\\\"The court erred in allowing petitioner, Mertie C. Holmes to withdraw from the register of the court $300.00 at the time and under the circumstances, and in declining to grant the defendant, Clarence M. Holmes an appeal from said order and in rescinding the order made at the time granting said appeal from his said action.\\\"\\nThe proof showed that the property in question was vacant and out of repair, and that only $60 had been paid from the rents of said property to Mrs. Holmes, and that the Hamilton National Bank had been given a mortgage on said property by Clarence M. Holmes with the right to collect the rents and apply the same to the mortgage debt, and that the bank continued to collect said rents until the mortgage debt was paid and it had collected $300 in excess of the debt, which amount was paid into the Chancery Court of Hamilton County. At the time the intervening petition was filed by Mrs. Holmes the said Clarence M. Holmes was in arrears $660 on the $20 per month ordered paid for the maintenance of his min- or daughter. After crediting the $300 paid to Mrs. Holmes, Collected as rents by the Hamilton National Bank, there was a deficiency of $360, which represented the whole of the balance due up to July 1, 1937. \\\"We find no error in the decree of the Chancellor in this regard. As to the action of the Chancellor in declining to grant the defendant an appeal from the order awarding the $300 to Mrs. Holmes, this was discretionary with the Chancellor and the defendant has not been prejudiced, as the cause is before this Court'on a broad appeal. This assignment of error is overruled.\\nAppellant's seventh assignment of error is as follows:\\n\\\"Finally the court erred in granting the relief to Hal H. Clements for his $250.00 fee, (duplicate) and allowing and sustaining a lien on defendant's property in Hamilton County, and in allowing Mertie C. Holmes to receive the rents and profits thereof and in taxing the defendant with the costs. He should have dismissed the respective claims and taxed the complainant and the petitioner with the costs.\\\"\\nIt is contended by appellant that the lien of this decree has been lost because a levy and sale of the lands was not made within twelve months from the rendition of the decree, as provided by Sections 8043-8045- of Williams Code of Tennessee (1934). This was not a money judgment or such a decree as would support the issuance of an execution. The defendant was ordered to pay the $20 per month to Mrs. Holmes for the support of their minor child, and to pay $250 to Mrs. Holmes' attorney, Hal H. Clements, and a lien was declared against the property on Rossville Boulevard in Hamilton County, and the rents therefrom, to insure the payment of said amounts. The decree further recites:\\n\\\"It is further ordered, adjudged and decreed by the Court that the temporary injunction and the attachment attaching defendant's property and enjoining and inhibiting him from disposing of same is sustained and will continue against said property until defendant fully meets and satisfies this the Final Decree of the Court in this cause in so far as said Decree disposes of said property or declares a lien against defendant's property at 5008 Rossville Blvd., Hamilton County, Tennessee, for the purpose of securing the monthly payments of alimony for the support of said minor child, Eleanor Marion Holmes, and for the payment of $250.00 to complainant's counsel of record, Hal H. Clements, and if and or when defendant completes the payment of said monthly alimony, and the payment of said attorney fee to said Hal H. Clements, then and in that event said injunction and attachment against said property shall automatically be dissolved, and said property released.\\\"\\nThis was a continuing, equitable lien, and the complainants had the right at any time the defendant failed to comply with the decree to come into a court of equity to seek its enforcement. This is not a lien for a money judgment or such other liens as contemplated under the above mentioned sections of the Code. We think the instant case is controlled by the reasoning of Chancellor Cooper in the case of Brown & Reid v. Bigley, 3 Tenn. Ch. 618.\\nIn discussing the doctrine announced in Brown v. Bigley, supra, in the case of Milam v. Milam, 138 Tenn. 686, 691, 200 S. W. 826, 827, Mr. Justice Williams, speaking for the Court, said:\\n\\\"An equitable lien, strictly speaking, is not a jus in re or a jus ad rem, but is the right to have the property subjected in a court of equity to the payment of the claim. It is a floating equity until action by the court is invoked.\\\"\\nUnder the Tennessee practice the wife's attorney's fees are treated as a part of the alimony awarded the wife. In the case of Winslow v. Winslow, 133 Tenn. 663, 671, 182 S. W. 241, 243, Ann. Cas. 1917A, 245, the Court said:\\n\\\"In Tennessee attorney's, fees are treated as \\u2014 'part of the expenses incident to the cause, and are generally allowed to the wife, whether she be complainant, or defendant, in a suit for divorce. They follow, and are usually adjudicated with, the allowance of alimony and costs to the wife, but are not in themselves the substantive objects of the litigation.' Shy v. Shy, 7 Heisk. (54 Tenn.) 125.\\\"\\nWe concur in the finding of facts by the Chancellor, and his decree fixing a lien on the property in question, and this assignment of error is overruled.\\nWe fully concur in all the facts as found by the Chancellor, and the decree pronounced is affirmed and the appeal dismissed, at appellant's cost. A Receiver having been appointed in the court below and the cause retained on the active docket for the purpose of making supplemental orders with reference to the receivership and the disposition of rents, and reserving the power to terminate the receivership and order the property sold in event the receivership fails to produce sufficient rental, th\\u00e9 court expressly reserving the right to adjudicate further in these respects, the cause will be re manded to tbe Chancery Court of Hamilton County for the purposes as set forth in the decree.\\nSenter and Ketehum, JJ., concur.\"}"

tenn/8512488.json

@@ -0,0 +1 @@
+"{\"id\": \"8512488\", \"name\": \"IN RE A-1 LIQUOR DISTRIBUTORS, INC.\", \"name_abbreviation\": \"In re A-1 Liquor Distributors, Inc.\", \"decision_date\": \"1953-10-30\", \"docket_number\": \"\", \"first_page\": \"661\", \"last_page\": \"670\", \"citations\": \"37 Tenn. App. 661\", \"volume\": \"37\", \"reporter\": \"Tennessee Appeals Reports\", \"court\": \"Tennessee Court of Appeals\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-11T00:31:25.531292+00:00\", \"provenance\": \"CAP\", \"judges\": \"Felts and Howell, JJ., concur.\", \"parties\": \"IN RE A-1 LIQUOR DISTRIBUTORS, INC.\", \"head_matter\": \"IN RE A-1 LIQUOR DISTRIBUTORS, INC.\\n\\u2014 269 S. W. (2d) 785.\\nMiddle Section.\\nOctober 30, 1953.\\nRehearing denied, December 4, 1953.\\nPetition for Certiorari denied by Supreme Court, April 16, 1954.\\nRehearing denied, May 24, 1954.\\nWalker, Hooker, Keeble, Dodson & Harris of Nashville, for petitioner.\\nAlfred B. Huddleston, of Murfreesboro, John D. Tem-pleton, of Shelbyville, for City of Murfreesboro.\", \"word_count\": \"2202\", \"char_count\": \"13599\", \"text\": \"HICKERSON, J.\\nA-l Liquor Distributors, Inc., herein called A-l, prosecutes this appeal to review the judgment of the Circuit Court of Eutherford County whereby it was ordered that one hundred cases of whiskey, owned by Arl, \\\"be and the same are hereby condemned and forfeited; that George Sharpe, Sheriff of Butherford County, Tennessee, in accordance with the provision's of Section 11232' of the Supplement to the Code of Tennessee, forthwith proceed to dispose of said whiskey by sale thereof to any lawful retailer of liquor in counties' wherein the sale of liquor has been legalized, getting the' best price therefor obtainable. \\\"\\nTwo determinative'questions are presented by the assignments :\\n1. Did the trial court err in holding that A-l was unlawfully transporting the whiskey in question in Mur-freesboro, Butherford County, Tennessee?\\n2. Did the trial court err in ordering the whiskey confiscated and sold, \\\"in accordance with the provisions of Section 11232 of the Supplement of the Code of Tennessee * 8 * getting the best price therefor obtainable'1'?\\n(1) There is no dispute about the material facts. A-l is a qualified wholesale liquor dealer in Nashville, Tennessee. Chattanooga Wholesale Company is a wholesale liquor dealer in Chattanooga, Tennessee. A-l \\\"bought one hundred cases of whiskey from Chattanooga Wholesale Company. The liquor was being transported from Chattanooga'to Nashville in a truck owned and operated by A-l. When this truck load of liquor entered the' corporate limits of Murfreesboro it was seized by the officers, and the driver of the truck was arrested for unlawful transportation of this liquor. Similar transactions and transportation of liquor had been approved'by the Department-of Finance and Taxation of the State of Tennessee. This Department is charged with the statutory duty of enforcing the laws which related to the handling of liquor in Tennessee. Butherford County is a \\\"dry county\\\" under the statutes of Tennessee.\\nA-l filed a petition in the Oircnit Court of Rutherford County seeking to recover this liquor. A-l was the owner of the liquor.\\nThe trial judge held A-l w.as unlawfully transporting this whiskey and ordered the same be confiscated. As stated, A-l prosecuted this appeal to review that judgment of the Circuit Court which was adverse to it.\\nThe following statutes are involved in the consideration of these questions:\\nCode Section 11217:\\n\\\" Transportation into, or from place to place, in this state, is unlawful. \\u2014 It shall be unlawful for any express company, railroad company, or any common carrier or person to ship or transport into this state, or from one place to another within this state, intoxicating liquors, including wine, ale, beer, for any person, whether in original packages or otherwise and whether intended for personal use or otherwise; provided that if the intoxicating liquor so shipped or transported be in the quantity of one gallon or more, such shipment or transportation shall he a felony, punishable by confinement in the penitentiary for a term of not less than one year and one day nor more than five years; provided, that if the offender be a corporation, it shall be fined one thousand dollars for the first offense and two thousand dollars for each subsequent offense.\\\"\\nCode Section 11218:\\n\\\"Such personal transportation is unlawful. \\u2014 It shall be unlawful for any person personally to transport into this state, or from one point to another within this state, for personal use or for any other purpose, intoxicating liquors, including wine, ale and beer, in any quantity whatever; provided that if tlie intoxicating liquor so transported shall be in the quantity of one gallon or more, the offense shall he a felony punishable by imprisonment in the penitentiary for a term of not less than one year and one day and not more than five years.\\\"\\nSupplement to Code of Tennessee 1950, Section 6648.9:\\n\\\"Laws applicable to dry counties; transportation through same. \\u2014 In the several counties in which no local option election is held, or, if held, a majority of votes cast therein are against local option, then as to that county nothing in this chapter shall he so construed as to modify in any respect the statutes now in force relating to the manufacture, sale, transportation, or possession of intoxicating liquors, hut the same shall remain in full force and effect.\\n\\\"Provided, it shall be lawful to transport alcoholic beverages through such counties in which no local option election is held, or if the election is held and the majority of votes cast therein are against local option, if, in either such case, such beverages are in sealed bottles or containers, and are moving from a duly licensed manufacturer to a licensed wholesaler, or from a wholesaler to a licensed retailer, and such shipment is accompanied by a bill of lading or other instrument in writing showing the destination of such alcoholic beverages.\\\"\\nSupplement to Code of Tennessee 1950, Section 6648.-15(1):\\n\\\"General regulations as to purchase and sale.\\u2014 (1) No retailer shall purchase any alcoholic beverages from anyone other than a licensed wholesaler, nor shall any wholesaler sell any alcoholic beverages to any one other than a licensed retailer. ' '\\nIn Evans v. Pearson, 193 Tenn. 528, 246 S.W. (2d) 964, 966, the Court said:\\n\\\"In the control of liquor, it has been found expedient not only to control the use of intoxicating liquor but more expressly the traffic therein. Vol. 30, Am. Juris., 260.\\n# # # #\\n\\\"Not having complied with the provisions of the law pertaining to possession, and the search having-been legally conducted, it results that the judgment of the lower court was erroneous. It is reversed and the property in question ordered confiscated by the Commissioner of Finance and Taxation according to the statute.\\\"\\nThe general statutory law of Tennessee prevents the possession or transportation of liquor in dry counties. Code Sections 11217 and 11218.\\nSpecific exceptions relating to the transportation of liquor in dry counties are made by the 1950' Code Supplement, Section 6648.9. By this statute liquor may be transported in dry counties when (1) it is in sealed bottles or containers; (2) the liquor is, \\\"moving from a duly licensed manufacturer to a licensed wholesaler\\\"; (3) the liquor is moving, \\\"from a wholesaler to a licensed retailer\\\"; and (4) \\\"such shipment is accompanied by a bill of lading or other instrument in writing showing the destination of such alcoholic beverages. ' '\\nFurthermore, the sale of liquor from one wholesaler to another wholesaler is expressly forbidden by 1950 Code Supplement, Section 6648.15(1) where it is said: \\\"Nor shall any wholesaler sell any alcoholic beverages to any one other than a licensed retailer.\\\"\\nUnder the express terms of these statutes A.-1 w.as unlawfully in the possession of this liquor and was unlawfully transporting same unless we add by implication another exception to those exceptions expressly enumerated in the 1950' Code Supplement, Section 6648.9 to the effect that liquor purchased from one wholesaler by another wholesaler may be moved by the purchasing wholesaler through a dry county. If we should so construe 1950 Code Supplement, Section 6648.9, we would hold that one wholesaler could legally sell to another wholesaler when the 1950 Code Supplement, Section 6648.15 expressly provides that one wholesaler cannot legally sell to another wholesaler.\\nThe rules of statutory construction forbid our adding an exception by implication to a general law which is not included in the specific statutory exceptions to such law. When the legislature enumerates specific exceptions to a general law, such specific exceptions will be construed to exclude all other exceptions. Hamilton National Bank v. McCanless, 176 Tenn. 570, 144 S. W. (2d) 768; Burns v. City of Nashville, 132 Tenn. 429, 178 S. W. 1053.\\nIt is our conclusion that the Chattanooga Wholesale Company had no right to sell this whiskey to A-l. Wherefore, the possession of A-l was an unlawful possession, and the trial court correctly dismissed the petition of A-l and ordered the liquor confiscated pursuant to statute. The 1950 Supplement to the Code of Tennessee, Section 11232 provides:\\n\\\"The court shall enter an order upon the minutes directing the sheriff to dispose of such liquor by sale to any lawful retailer of liquor in counties wherein the sale of liquor has been legalized, getting the best price therefor obtainable.\\nThere is no merit in the contention of A-l that the Court should interpret this statute as the Department of Finance and Taxation construed it. The statute needs no construction. Its terms are plain and simple and the meaning is perfectly clear. We do not understand that the Department of Finance and Taxation is authorized to promulgate rules in connection with the handling of liquor in Tennessee which are in direct conflict with the plain provisions of the statutes governing such matters.\\n(2) Complaint is made that the trial court ordered that the confiscated liquor he sold, \\\"getting the best price therefor obtainable;\\\" when the statute provides, \\\"In no event shall liquor be sold at a price lower than the prevailing wholesale price at the time of sale. ' ' The 1950' Supplement to the Code, Section 11232.\\nThere is no merit in this contention of petitioner for two reasons:'\\nFirst, the final judgment of the court ordered the liquor sold, \\\"in accordance with the provisions of Section 11232 of the Supplement to the Code of Tennessee.\\\" When so sold, respect must be had for the last sentence in the 1950 Supplement to the Code of Tennessee, Section 11232, quoted above.\\nSecond, this same Code Section provides: \\\"The court shall enter an order upon the minutes directing the sheriff to dispose of such liquor by sale to any lawful retailer of liquor in counties wherein the sale of liquor has been legalized, getting the best price therefor obtainable\\\".\\nTaken as a whole, this Code Section means that confiscated liquor must be sold, \\\"getting the best price therefor obtainable,\\\" but the liquor must not be, \\\"sold at a price lower than the prevailing wholesale price at the time of sale. ' ' That is exactly what we construe the final judgment of the trial court to mean.\\nLet the assignments of error he overruled, and the judgment of the trial court affirmed with all costs. Demand to enforce the judgment.\\nFelts and Howell, JJ., concur.\"}"

tenn/8512640.json

@@ -0,0 +1 @@
+"{\"id\": \"8512640\", \"name\": \"RUSH v. RUSH\", \"name_abbreviation\": \"Rush v. Rush\", \"decision_date\": \"1949-05-19\", \"docket_number\": \"\", \"first_page\": \"496\", \"last_page\": \"506\", \"citations\": \"33 Tenn. App. 496\", \"volume\": \"33\", \"reporter\": \"Tennessee Appeals Reports\", \"court\": \"Tennessee Court of Appeals\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T22:54:36.762850+00:00\", \"provenance\": \"CAP\", \"judges\": \"Baptist and Swepston, JJ., concur.\", \"parties\": \"RUSH v. RUSH.\", \"head_matter\": \"RUSH v. RUSH.\\n232 S. W. (2d) 333.\\nWestern Section.\\nMay 19, 1949.\\nPetition for Certiorari denied by Supreme Court, October 7, 1949.\\nPatrick Johnson and Harold R. Ratcliff, both of Memphis, for complainant.\\nJ. C. Rutschman, Jr., of Memphis, and David P. Murray, of Jackson, for defendant.\", \"word_count\": \"2735\", \"char_count\": \"15381\", \"text\": \"ANDERSON, P. J.\\nThe' complainant, Lillie B. Rush, was granted an absolute divorce from her husband, Jeff Lee Rush, on the grounds of failure to provide and cruel and inhuman treatment. By way of alimony, she was awarded all of the defendant's interest in the home and personal property therein contained, which was owned by the parties as tenants by the entireties. In addition, defendant was ordered to pay complainant's solicitor a fee of $100 and cost of the court. The defendant appealed and complains only of the award of alimony and the amount allowed the complainant's solicitor as his fee.\\nThe only property owned by the parties is an equity in the home in which they lived, located at 3875 Spottswood Avenue, in Memphis, together with the furnishings therein. The title is vested in them as tenants by the entire-ties. Just when the house was purchased does not appear, but the purchase price was $10,000. It is encumbered by a first mortgage securing a debt on which there is a balance of $4,000 payable in monthly installments.-\\nIt is proper to' note that the complainant makes no complaint of the allowance made her and we are therefore not concerned with its adequacy or the form in which it was made.\\nThe general principle by which, the court is to be guided in awarding alimony to a wife who obtains absolute divorce from her husband was stated by the court in Walden v. Walden, 13 Tenn. App. 337, 344. \\\"The matter of what amount of alimony should be decreed to a wife out of the estate of her husband in a divorce proceedings is in the sound discretion of the trial judge. This discretion when soundly exercised, will not be disturbed on appeal. There are no hard and fast rules governing the amount of alimony which may be decreed to a wife. Many elements enter in for consideration. The amount of alimony to be decreed is not to be controlled solely by the value of the estate owned by the husband.' While this is an important factor to be considered it does not alone control. The value of any separate estate owned by the wife is an element to be considered. The age and station in life are elements, and also the income and sources of income by the respective parties. The way and manner in which the estate has been accumulated and contributions made thereto by the wife, either out of her own funds or by her own work and efforts. In many jurisdictions the general conduct of the husband, and his mistreatment of the wife, where she is free from fault, may also be considered in arriving at a proper award for alimony.\\\"\\nUnder this statement, there can be no doubt that misconduct of the husband is a proper matter to be considered in the making of an award of alimony. See also, McClung v. McClung, 29 Tenn. App. 589, 198 S. W. (2d) 820, 822.\\nThe complainant is forty-two years of age. She and the defendant were married on May 2, 1923. Two children were, born to them. One died in infancy and the other, a son, is now twenty-two years of age. He is unable to work because of illness and makes his home with his parents. On January 6, 1948, the complainant filed a bill of divorce in the Circuit Cort of Shelby County. The defendant filed an answer and cross-bill which was in turn answered by the complainant. Upon the hearing the Circuit Judge dismissed both the original and cross-bill.\\nThe present bill was filed on June 30, 1948, and the final decree was entered on September 30, 1948. On the day the bill in the Circuit Court was dismissed, the defendant told the complainant that he would not live with her again and was going to sell the home and the furnishings, which they owned as tenants by the entirety, and she would get from the profits only what he chose to give her. He made similar statements to others.\\nAt the time the case was tried, both parties were still living in the home, the defendant occupying one of the bedrooms and the complainant and the son occupying the other. The complainant and defendant have not cohabited as husband and wife since December 31, 1947.\\nSince the proceedings in the Circuit Court were dismissed, the defendant has continually cursed and abused the complainant, accusing her of \\\"going out with other men,\\\" and sought to force the son to leave the home. In June, 1948, the-defendant told the complainant he was going to get a divorce in Arkansas and marry the woman with whom he was going. He received at the home numerous phone calls from another woman and several letters addressed in the woman's handwriting. On May 15, 1948, the defendant undertook to prevail upon the complainant to agree to sell the home. When she refused, he cursed her, threatening to slap her, and also threatened the son. The situation was such that she called the police, who learning of the nature of the controversy, declined to arrest the defendant and told the complainant to get in touch with an attorney, \\\"as there was a divorce action between them.\\\"\\nOn the day the divorce suit in the Circuit Court was dismissed, the complainant told the defendant that she was ready to live with him, but he declined the offer. At that time the telephone was about to be cut off because the defendant had not paid the bill He also refused to pay the .monthly installment notes on the home, telling the complainant that he was not going to pay them, ' so that she and Clifford (the son) would be put in the street. ' '\\nOn cross-examination the defendant was asked if on three specifically named nights he did not visit a woman in apartment four at 406 Madison Avenue. He testified that he did not. He said that on Friday, September 24, 1948, he went to that apartment house and visited a male friend in apartment five, and after leaving there, went to the home of his niece and her husband and spent the night. He denied having gone to the apartment house at all on either Wednesday or Thursday of the same week. In rebuttal, the complainant, her son and another woman testified that on each of the three nights they followed the defendant to the apartment house, saw him arrive about 7:30 o 'clock and watched the house front and rear until about 10:00 o'clock, but at that time he had not left on either occasion. Each time the defendant entered the rear door of the building. The complainant testified that they saw the defendant enter apartment 4, in which a woman by the name of Mildred White lived. During the argument at the bar it was admitted that the defendant married this woman, Mildred White, in Desoto County, Mississippi, October 9, 1948, nine days after the final decree in this cause was entered.\\nError is assigned on the action of the Court in admitting the foregoing evidence with respect to the defendant's visiting the other woman's apartment. It is insisted that no such charge is set out in the bill with the particularity required by Code Sec. 8430. That section deals with the particularity with which charges relied upon as the grounds for divorce must be charged in the bill. It does not appear that the chancellor considered this evidence in granting the divorce and since the other evidence is sufficient to make out a case, it must be presumed that the action was based thereon.\\nMoreover, since the defendant is not challenging the decree for divorce, we fail to perceive the force of this argument. Apart from this, however, the defendant did not state the grounds upon which he objected to the evidence at the time it was offered, and hence is in no position to complain about the action of the chancellor in overruling the objection. Lively v. American Zinc Company, 137 Tenn. 261, 191 S. W. 975.\\nBut the case is triable de novo here and the evidence will be considered only for Avhatever it is worth.\\nAs already indicated, the principal complaint is with respect to the amount of alimony. It is insisted that the chancellor stripped the defendant of all of his property and moreover failed to take into consideration the fact that he was indebted to the amount of $500.\\nAs said, the parties have been married since May, 1923. The complainant is forty-two years of age and the defendant is forty. The son is twenty-two. For the four years preceding the filing of the bill the complainant has worked and supported herself and her son, buying the groceries, clothing, and other necessities of life for the two of them. For the past year the complainant has paid for medical treatment for the afflicted son, with out any contribution from the defendant. Complainant earns about $30 per week net after deductions. She paid the monthly installment notes due on the house in the sum of $49.67, for each of the months of May, June, July, August and September, 1948. The defendant is employed by the Ford Motor Company and earns $12 per day gross, before deductions. Just what the deductions are does not appear.\\nThe defendant insists that there is no precedent for taking all of his property and ignoring the fact that he was in debt to the extent of $500; that the precedents established the rule that between one-third and one-half of a husband's property is the proper amount to be awarded.\\nAlimony is allowed in recognition of the husband's common law liability to support the wife. The amount is in the sound discretion of the judge or chancellor and his action will not be disturbed except in a clear case of abuse of that discretion, Walden v. Walden, supra. No hard and fast rule can be laid down for the determination of the amount of the award or th\\u00e9 form which it takes, and there has been no attempt in the adjudicated cases to do so. The facts and circumstances in each particular case must govern. While it has been said that where the award is in solido it is not usual to allow more than half of the husband's estate after making deductions for his indebtedness, Stillman v. Stillman, 66 Tenn. 169, the authority of the court to award all or any part of the husband's estate according to the particular facts or circumstances has been recognized. Boggers v. Boggers, 65 Tenn. 299.\\nIn Williams v. Williams, 146 Tenn. 38, 44, 236 S. W. 938, 940, the court makes this pertinent statement: \\\"The husband owes the duty to his wife of rendering to her suitable support without reference to her financial condition. He ought not to he allowed to escape the performance of that duty by affording his wife cause for separation and placing her in a financial situation worse than it was before his misconduct brought about a legal separation.\\\"\\nFormerly, it was the uniform practice in a case of absolute divorce granted to the wife to award alimony in solido from such resources as the husband had at the time. Indeed, it was held that in such a case, the court had no power to bind the future earnings of the husband. Boggers v. Boggers, 65 Tenn. 299. See also Chenault v. Chenault, 37 Tenn. 248. While it is still the general rule to award alimony in gross where the estate of the husband is such as to serve the purpose of the law, a decree awarding alimony in futuro is valid and enforceable in this jurisdiction, and where the husband has no estate which will answer the purpose, but has an earning capacity, a monthly allowance to be paid by him by way of alimony, is authorized. Brown v. Brown, 156 Tenn. 619, 4 S. W. (2d) 345; Buchholtz v. Buchholtz, 175 Tenn. 87, 132 S. W. (2d) 208.\\nThose cases in which an award in solido of from one-third to one-half of the husband's property have been made, were cases in which the property was of such a nature as that it reasonably could be expected that the wife would be able to derive from that portion, support comparable to that afforded her by the husband, leaving her, to paraphrase the words of the court in Williams v. Williams, supra, in no worse financial situation than she was in before the misconduct of the husband brought about the separation.\\nIn holding authorized under proper circumstances an award of alimony to be paid in monthly installments out of future earnings of the husband, our court has recognized that the great increase in recent years of the number of those who depend almost exclusively upon wages for a livelihood, has made impracticable in many cases an award in solido which will answer the exactions of the law. And we apprehend it to be the rule that in a case like the present, where the husband has no property except an interest in the home and in the household furnishings, his. earning capacity is a factor to be considered in determining whether his entire interest in such property shall be given the wife, where the chancellor conceives to be proper an award in solido rather than an award in the form of monthly installments to be paid by the husband.\\nThis view finds recognition, impliedly at least, in the case of Taylor v. Taylor, 144 Tenn. 311, 232 S. W. 445.\\nIn the present case, we think, all things considered, the defendant got off lightly. In arguing to the contrary he overlooks the fact that he is no longer obligated to support the complainant and is free to devote his entire earnings of $12 a day exclusively to his own purposes. Upon the other hand, the complainant not only loses her right to look to the defendant for future support but in the nature of things will be onerated with the payment of the $4,000 mortgage indebtedness on the home at the rate of $49.67 per month out of her comparatively small earnings of $30 a week. In addition she will be morally bound to support the adult son so long as he is unable to work, and doubtless will do so.\\nMoreover, the evidence justifies the conclusion that for the past four years the complainant has been supporting herself and her son, and thns discharging an obligation which as between them was primarily the defendant's duty to discharge, at least as to her.\\nA somewhat analogous situation was presented in McClung v. McClung, supra. There, upon the granting of an absolute divorce to the wife on the ground of abandonment and cruel and inhuman treatment, the lower court declined to make an award of alimony other than the interest of the husband in the household furnishings and the personal property belonging to the parties, except an automobile which was given the husband. A house the parties owned by the entireties \\\"was left as provided by law.\\\" In rendering its decision the trial court said: \\\"This is not a case for the awarding of alimony.\\\" He said he had given the household furniture to the wife because the parties had agreed thereto. Upon appeal the wife contended that she was entitled to alimony. This court sustained this contention and held that the equity of the husband in the home should be given to her as alimony in addition to the personal property awarded to her by the trial court. Cf. Taylor v. Taylor, supra.\\nUpon the whole case, we are satisfied that the Chancellor did not abuse his discretion in the matter of alimony and his decree is accordingly affirmed at the cost of the defendant. Upon application of the solicitors for the complainant, they are allowed an additional fee of $75 for services rendered in this court, which the defendant is ordered to pay in addition to the costs.\\nBaptist and Swepston, JJ., concur.\"}"

tenn/8528245.json

@@ -0,0 +1 @@
+"{\"id\": \"8528245\", \"name\": \"General Accident Fire and Life Assurance Corporation, Ltd. v. Benjamin F. Kirkland\", \"name_abbreviation\": \"General Accident Fire & Life Assurance Corp. v. Kirkland\", \"decision_date\": \"1962-04-04\", \"docket_number\": \"\", \"first_page\": \"39\", \"last_page\": \"51\", \"citations\": \"210 Tenn. 39\", \"volume\": \"210\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T20:05:09.585383+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"General Accident Fire and Life Assurance Corporation, Ltd. v. Benjamin F. Kirkland.\", \"head_matter\": \"General Accident Fire and Life Assurance Corporation, Ltd. v. Benjamin F. Kirkland.\\n356 S.W. 2d 283.\\n(Knoxville,\\nSeptember Term, 1961.)\\nOpinion filed April 4, 1962.\\nCheek, Taylor & Groover, Calvin N. Taylor, Knoxville, for petitioner.\\nWilbur W. Piper, Knoxville, for respondent.\", \"word_count\": \"3064\", \"char_count\": \"17813\", \"text\": \"Mr. Justice White\\ndelivered the opinion of the Court.\\nThis is a Workmen's Compensation case commenced originally in the Circuit Court at Knoxville against H. K. Ferguson Company of Anderson County, as the employer, and Potomac Insurance Company, the supposed insurance carrier. When it developed from the pleadings that the Potomac Insurance Company was not the insurance carrier, then the correct insurance carrier, General Accident Fire and Life Assurance Corporation was substituted as the defendant and service of process was attempted to be had on said Company through the insurance commissioner of the State of Tennessee, said Company having no office or place of business in Knox County.\\nBoth defendants filed pleas in abatement stating they were non-residents of the State of Tennessee and bad no office or place of business in Knox County and, therefore, the Circuit Court of Knox County had no jurisdiction of either the employer or the insurance carrier. Thereupon, the plaintiff took a voluntary nonsuit as to the employer, H. K. Ferguson Company, and the Court overruled the plea in abatement filed by the Insurance Company. The case was then heard on its merits and a judgment was entered for the petitioner. Upon appeal the Court in an opinion written by Mr. Justice Swepston reversed the action of the Trial Court in overruling the plea in abatement of said Insurance Company and dismissed the suit. 207 Tenn. 72, 338 S.W.2d 549. This opinion was announced by the Court on September 9, 1960.\\nOn November 17,1960, the petitioner commenced a new action against said General Accident Fire and Life Assurance Corporation, Ltd., and his employer, H. K. Ferguson Company, in the Circuit Court for Anderson County, Tennessee, claiming to be entitled to the same benefits for the same reasons as set out in his petition filed in Knox County. To this second petition the defendant filed pleas in abatement contending that the action could not be maintained as to H. K. Ferguson Company because more than one year had elapsed since the entry of the voluntary nonsuit in February, 1959. The Trial Court sustained the plea as to the defendant, employer, and no appeal was taken for such action.\\nThe Insurance Carrier contended that the plea should be sustained because it was an ancillary defendant in the suit in Knox County and since the case had been dis missed as to the primary defendant, the employer, and was not renewed within one year that the action against the defendant, Insurance Carrier, conld not be maintained.\\nIt was the further plea of the defendant that the action against it was not commenced within the time permitted under Section 50-1003 T.C.A., which provides \\\"the right to compensation shall be forever barred, unless within one (1) year after the accident resulting in injury or death a claim for compensation under the provisions of this law is filed with the tribunal having jurisdiction to hear and determine the matter;\\nIt is contended by the defendant, appellant herein, that Section 28-106 T.C.A. does not save to the petitioner, appellee, the right to maintain this action. Section 28-106 provides:\\n\\\"If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding his right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested, or reversed on appeal, the plaintiff, or his representatives and privies, as the case may be, may, from time to time, commence a new action within one (1) year after the reversal or arrest.\\\"\\nThis is a remedial statute having general application. G-ilreath Caruthers History of a Lawsuit, Section 52, page 59, states:\\n\\\"The statute is remedial and should be liberally construed in furtherance of its purpose. But, for the statute to apply, the parties, purpose and subject- matter must be tbe same in both cases and tbe judgment or decree must bave been rendered against tbe plaintiff: on some ground not concluding bis cause of action, sucb as the plaintiff taking a nonsuit; or if tbe judgment or decree was in plaintiff's favor it must have been arrested or reversed on appeal.\\\" Nashville, Chattanooga and St. Louis Ry. Co. v. Bolton, 134 Tenn. 447, 184 S.W. 9.\\nIn tbe case of Burns v. Peoples Tel. & Tel. Co., 161 Tenn, 382, 33 S.W.2d 76, tbe late Mr. Chief Justice Creen in speaking for tbe Court said:\\n\\\"Where an action not already barred by tbe statute of limitations is commenced in tbe wrong court and dismissed for lack of jurisdiction, sucb action is sufficient to suspend tbe statute of limitations and to permit a new suit to be commenced within a year after such dismissal under a statute providing that if an action is commenced within the time limited and judgment is rendered against tbe plaintiff upon any ground not concluding bis right of action, be may commence a new action within one year.\\\"\\nWithin recent years our Court, as well as tbe Courts of last resort of other States, has paid more attention to tbe basic and intrinsic rights of tbe parties than it has to form, doing justice between the parties in administering the spirit of tbe law instead of tbe cold letter of tbe law. Tbe letter of Section 28-106 T.C.A., as well as tbe spirit which prompted its enactment, shows that its basic purpose was to aid tbe Courts in administering tbe law fairly between litigants without binding them to minor and technical mistakes made by their counsel in interpreting tbe complexities of our laws of procedure. In tbe case of Rye v. DuPont Rayon Company, 163 Tenn. 95, 96, 40 S.W.2d 1041, Mr. Justice Cook speaking for the Court said :\\n\\\"The statute of limitations incorporated in the Compensation Act affects the remedy and is not a statute of proscription.\\n\\\"An action under the Compensation Act to recover compensation for the death of an employe may he renewed within one year after the dismissal for failure to prosecute of a similar action previously brought, the statute authorizing a new action within one year after the conclusion of a former action which was not decided upon grounds concluding the right of action having application.\\\"\\nWe know of no sound, legal or equitable reason for not applying the rule set out in Section 28-106 T.C.A. to the case at bar.\\nThe case of Burns v. Peoples Tel. & Tel. Co., supra, is a complete answer to the contention of the appellant that its plea in abatement should be sustained. Therefore, Assignment of Error No. 4 is overruled.\\nAll of the other Assignments of Error are directed in the main toward the introduction of evidence and consideration of the Court thereof, and final decision of the Court in connection therewith. Therefore, a statement of the facts is now in order.\\n' The petition filed on behalf of' Kirkland sets out that he is a resident citizen of Knox County, Tennessee, and under Section 1 of his petition he states that he filed a petition against the defendant, General Accident Fire and Life Assurance Corporation, Ltd., in the Circuit Court of Knox County, Tennessee, on November 24,1958; that a plea in abatement to said suit was filed by said defendant and overruled by the Trial Court; that upon the trial of the ease on the merits a judgment was rendered in his favor, awarding to him benefits for permanent total disability and medical bills in the amount of $345.98; that upon appeal his petition was dismissed and the plea in abatement filed by the defendant was sustained.\\nUnder Section 2 of the petition, the petitioner alleged that the defendant issued an insurance policy insuring the liability of his employer, H. K. Ferguson Company, under the terms and conditions of the Workmen's Compensation Law of Tennessee.\\nUnder Sections 3 and 4 it was alleged that the petitioner was in the regular employ of H. K. Ferguson Company as a mechanic and earned an average weekly wage of approximately $126.00. That on or about the 26th day of March, 1958, while petitioner was engaged in his said employment, he was injured as the result of an accident which arose out of and in the course of his employment, in that, while petitioner was in the act of repairing a truck owned by the Atomic Energy Commission, which was being used by said employer, he was using a heating torch in the process of straightening the body of the truck. Petitioner was standing in the bed of the truck and when he started to alight from the truck, he lost his footing and fell to the concrete floor a distance of approximately five feet striking his head with great force and violence against the concrete suffering severe injuries to his skull, head and brain causing him to be confined in a hospital for a period of twenty-five days and to incur medical expenses in the proper treatment of said injuries. He alleges Ms total and permanent disability and he claims to have lost all sense of equilibrium, his sense of smell, his eyesight has become impaired and his speech has become impaired.\\nThe petitioner alleged that the defendant, General Accident Fire and Life Assurance Corporation, Ltd., recognized his claim and paid temporary total disability benefits to him until September 3rd, 1958, at which time such payments ceased, without reason.\\nThe defendant in its answer admitted the averments of Sections 1 and 2 of the petition, and it also admitted that the petitioner was employed by H. K. Ferguson on March 26, 1958, but denies that plaintiff was injured as the result of an accident arising out of and in the course of his employment, and denies specifically that the accident occurred as set forth in the petition under Section 3 thereof. The defendant further answering said:\\n\\\"Before it came aware of the fact that plaintiff's injuries and temporary disability were from causes other than an injury under the Compensation Laws of Tennessee, plaintiff having been under the care of a physician of his choosing and not one employed by plaintiff, (evidentally meaning defendant) that the plaintiff was paid temporary disability for a period of weeks; but that such payments are not binding on it, and were not earned by plaintiff under the terms of the Laws of Tennessee; and it denies plaintiff is entitled to any further temporary disability; and, if entitled to total permanent disability, that such payments shall be credited against such award. Defendant denies that plaintiff is entitled to any medical expenses paid by him, or medicines obtained by him, and that such were for causes other than an accidental injury.\\n\\\"Defendant agrees that it learned of injuries and disability but says that it was kept from the facts as to the cause of the disability by plaintiff's physician; and that it was later learned that such medical and hospital bills were not earned under the terms of the Workmen's Compensation Laws of Tennessee.\\\"\\nIn support of the petition filed, the petitioner testified that he and a fellow employee were straightening a frame or a body of a dump truck and that they had been working for more than two hours heating the frame or body of the truck with a torch trying to get it hot enough to straighten it out. The petitioner testified:\\n\\\"As well as I can remember I told Mr. Black (his fellow employee) to light the torch and put some more heat on it and I started to get down and I remember putting my foot on the floor, hitting the floor, then something hit me. I don't know whether I slipped, whether I stepped on a piece of grease or whether I got something on my feet out of the body of the truck, I just don't know what happened.\\\"\\nHe was then asked:\\n\\\"Q. At the time you felt this slipping movement or when this accident happened, where were you standing?\\n\\\"A. I was getting down off the truck in the act of getting down off the body which was about five feet from the floor. ' '\\nThe next thing the petitioner remembered was that an ambulance came to pick him up and then took him to a hospital. The witness Black testified that he had gone to the front part of the truck and did not actually witness the fall, but upon his return to the side of the truck, within a period of seconds from the time that he had left, he found the petitioner lying prostrate beside the truck bleeding from his ears and his nose. It was later found that petitioner suffered a fracture of his skull.\\nWhile the evidence of the petitioner as to how his injury occurred is not crystal clear, it, nevertheless, is reasonably susceptible of the conclusion that he slipped and fell while trying to get down off the truck or to alight from the truck.\\nIn the case of Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 977, the Court held:\\n\\\"Any reasonable doubt as to whether the act or injury of employee arose out of the employment should be resolved in favor of the employee or dependent.\\n\\\"The case comes within the general principle that an employee who, while suffering from an illness not induced by his employment, is injured by falling into a machine, or by falling downstairs or against a partition, it is entitled to compensation when it is found that the immediate and direct cause of such injury was coming into contact with such an object and that the contact was a risk or hazard incident to the employment. ' '\\nBefore an employee may recover a claim for Workmen's Compensation it is incumbent upon him, first, to show that he and his employer are bound by the terms and conditions of the Workmen's Compensation Act. Second, that he is an employee within the meaning of that Act. Third, that he suffered an accidental injury which grew out of and in the course of his employment, and finally that such injury resulted in disability to some degree.\\nIn the instant ease it is admitted that the parties occupied the relationship of employer and employee under the Act. The proof showed that petitioner was acting in the course of his employment at the time of his disablement, and the record shows that he suffered an accidental injury which grew out of his employment.\\nMany cases have held that an injury is received in the course of employment when it occurs while the workman is doing the duties which he is employed to perform.\\nIn the case of Davis v. Wabash Screen Door Co. et al., 185 Tenn. 169, 172, 173, 204 S.W.2d 87, the Court said:\\n\\\"Any injury arises out of the employment when there is apparent to the rational mind upon consideration of all the circumstances a causal connection between the conditions under which the work is required to be performed and the resulting injury.\\n\\\" if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of' the employment.\\\"\\nThe proof shows that the defendant recognized the claim of the petitioner and paid him weekly benefits for a period of twenty-three weeks and then refused to pay additional compensation on the ground that it had learned for the first time that he was not entitled to receive such payment, and the record indicates that it received this information from a doctor who examined the petitioner at its request. The record indicates that petitioner was examined by two medical doctors on behalf of the defendant, but neither of them testified on the trial of this case.\\nThe doctors who did testify supported the petitioner in his claims and both of them say the petitioner is totally and permanently disabled. The Trial Court originally, in Knox County, held that the petitioner was entitled to the benefits of the Act, and the Trial Court in Anderson County in the instant case also held that the petitioner is entitled to the benefits of the Act and held that he is totally and permanently disabled, and that he is entitled to the payment of all hospital, doctors and medical bills and entered a judgment accordingly.\\nSection 50-902, Sub-Section (a) T.C.A. states:\\n\\\"If the employer is insured, it shall include his insurer, unless otherwise herein provided.\\\"\\nThis simply means that the Insurance Carrier is the employer within the meaning of the Act.\\nIn the case of Mastin & Company et al. v. Loveday, 202 Tenn. 589, 590, 308 S.W.2d 385, in an opinion by Mr. Justice Tomlinson, the Court said:\\n\\\"An injured employee may bring suit directly against employer's insurer alone; he is not required to. also sue employer.\\n\\\"An injured employee, if he so elects, may bring suit against the employer's insurer in county in which the employee resides, even though it is a different county from that in which accident occurred, but in surer must be legally servable with process in that county.\\\"\\nTherefore, the petitioner had the right to sue the Insurance Carrier without joining the employer and the mere fact that the statute of limitations barred his right to bring suit against his employer, this alone, would not prevent his suing and recovering from the insurer. In other words, the employer and insurer are each principals and are jointly and severably liable to the employee. Collins v. Murray, 164 Tenn. 580, 51 S.W.2d 834.\\nWe have very carefully considered all assignments of error and find them to be without merit. There is ample evidence in the record of a material nature to support the findings of the Trial Court. Therefore, his action is in all things affirmed and this case is remanded for the entry of such decrees and orders as the Court may make consistent with this opinion.\\nThe costs of the cause are adjudged against the appellant.\"}"

tenn/8528321.json

@@ -0,0 +1 @@
+"{\"id\": \"8528321\", \"name\": \"John G. Adams, Petitioner-Appellee, v. Monroe County Quarterly Court, sitting as the Beer Board for Monroe County, Tennessee, et al., etc., Defendant-Appellant\", \"name_abbreviation\": \"Adams v. Monroe County Quarterly Court\", \"decision_date\": \"1964-06-04\", \"docket_number\": \"\", \"first_page\": \"270\", \"last_page\": \"276\", \"citations\": \"214 Tenn. 270\", \"volume\": \"214\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-11T01:10:39.984987+00:00\", \"provenance\": \"CAP\", \"judges\": \"Bubnett, Chief Justice, and Pelts, Dyeb and Holmes, Justices, concur.\", \"parties\": \"John G. Adams, Petitioner-Appellee, v. Monroe County Quarterly Court, sitting as the Beer Board for Monroe County, Tennessee, et al., etc., Defendant-Appellant.\", \"head_matter\": \"John G. Adams, Petitioner-Appellee, v. Monroe County Quarterly Court, sitting as the Beer Board for Monroe County, Tennessee, et al., etc., Defendant-Appellant.\\n379 S.W.2d 769\\n(Knoxville,\\nSeptember Term, 1963.)\\nOpinion filed June 4, 1964.\\nJoe Gr. Bagwell, Madisonville, for petitioner-appellee.\\nWilliam E. Howe, County Attorney, Sweetwater, for def endant-app ellant.\", \"word_count\": \"1494\", \"char_count\": \"8505\", \"text\": \"Me. Justice White\\ndelivered the opinion of the Court.\\nThe chancellor ordered the Beer Board to issue a beer permit to John G-. Adams in accordance with the prayer of his petition. From this action the Board has appealed and assigned errors.\\nThe facts are that John G-. Adams filed an application with the Monroe County Quarterly Court, sitting as the Beer Board for said County, for a permit to sell beer and requested a hearing thereon. The hearing was granted. Fourteen members of the Board were present, excluding the Chairman.\\nAfter hearing the proof in the case the vote of the members present resulted in one vote for the granting of the permit, two votes against the same, and the remaining eleven members of the Board refusing to vote. Based upon this action the permit was denied.\\nIn dne course a petition for the writ of certiorari was filed by John G. Adams in the Chancery Court, sitting' at Madisonville, in which it was averred that the action of the Beer Board in denying the permit was illegal, arbitrary, capricious and an abuse of the discretion of the Board. The petition averred that the applicant met all of the requirements of the law and the permit should have been issued to him.\\nUpon the foregoing averments, and others contained in the petition, the writ was granted and a transcript of the record made at the hearing was filed by the County Court Clerk with the Clerk and Master as ordered by the chancellor.\\nThe County Attorney filed an answer for the Beer Board stating among other things that the proposed location for the sale of beer under the permit is within three hundred feet of a public baptismal site on Con-asauga Creek, which baptismal site has been used by several churches for many years. For further answer it is claimed\\nthe proposed site is in a remote section of the county, some distance from the county seat, or any other community center, and the Sheriff of Monroe County cannot properly police said location.\\nIt is also contended that the permit should be denied because a majority of the people in the community objected to the issuance of the same, and that the location is on a narrow, crooked county road.\\nUpon the hearing the transcript of the evidence introduced before the County Beer Board was all of the evi dence considered by tbe conrt. No other evidence was introduced or offered to be introduced.\\nIn order for tbe petitioner to obtain a permit to sell beer at tbe place desired, it was incumbent upon bim to meet tbe requirements of T.C.A. sec. 57-205, tbe third paragraph thereof being as follows:\\n\\\" (T)hat no such beverages will be sold except at places were such sale will not cause congestion of traffic or interference with schools, churches, or other places of public gathering, or otherwise interfere with public health, safety and morals; the county court having the right to forbid such storage, sale or manufacture at places within two thousand (2,000) feet of such places of public gatherings in its discretion. ' '\\nThe chancellor held that the applicant had satisfied the requirement of the first, second, fourth and fifth paragraphs of said section according to the proof and according to the answer filed on behalf of the Beer Board. The applicability of the third paragraph of said section is the point in issue.\\nIn considering this matter de novo, the chancellor held:\\nTo justify a denial of this permit the Court would be required to determine from the proof that the operation of the beer tavern at the location involved would cause \\\"congestion of traffic or interference with schools, churches, and other places of public gathering, or otherwise interfere with public health, safety and morals.\\\" The Court is unable to find any proof in this record that the sale of beer at the proposed location would be violative of any of the foregoing provisions. The provision of the law which authorized the County Court to forbid sucb an operation within two thousand (2,000) feet to places of public gathering's is in the opinion of the Court not violated. It is set forth in the answer that such location is within three hundred (300) feet of a public baptismal site on Conasauga Creek. The Court is unable to conclude or interpret the law to mean -that such a baptismal site is contemplated by this statute. It was stated at the hearing that this site was the property of the petitioner herein and that such site consequently had been used by permission of the owner in times past by those religious bodies that practice baptism by immersion. It seems to the Court that to hold such location which contains no building or edifice of any ldnd to be a public gathering place as set out in the law would be a strained construction. There is no showing in the record by the proof introduced that this particular location would be violative of health, safety and morals to any greater extent than any rural location that might be proposed. To deny this application upon these grounds would be tantamount to holding that a permit issued for any location would be violative of these provisions. Many people so view it, but such is not the law. Neither is it the law that said permit should be denied as set forth in the answer because a majority of the people of the community object to the issuance of the permit.\\nIn the case of Cantrell v. DeKalb County Beer Board, 213 Tenn. 568, 376 S.W.2d 480 (1964), it is said that this Court considers an appeal from the action of the trial court in denying or granting a beer permit de novo accompanied by a presumption of the correctness of the judgment, and such judgment may be overturned only by a preponderance of the evidence. The burden in this Court is on the Board to show that the evidence does preponderate against the judgment of the chancellor.\\nFrom onr reading of the record we conclude that the chancellor was eminently correct in his ruling on the facts of the case.\\nThe Beer Board contends that \\\"a baptismal site generally known and repeatedly used over a long period of time for this purpose constitutes, and is, a public gathering place within the meaning of the aforesaid statute.\\\"\\nAs held by the chancellor in his opinion, it was stated at the hearing before the Beer Board that the baptismal site was on the property of the petitioner, John Gr. Adams, and that such site had been used by permission of the owner in times past for baptism by immersion.\\nIt may be that the public has gathered at this particular site over a period of several years, but according to the proof, this gathering is on private property and such property is owned by the petitioner herein, John Gr. Adams. If this is true, and we have to assume that it is under the state of this record, then John Gr. Adams could forbid the use of the site for baptismal purposes. Then, too, we hold from this record that this is not a public gathering place within the meaning of the aforesaid statute so as to preclude the sale of beer as petitioned for by Adams.\\nBlack's Law Dictionary, 4th Ed., defines a public place as\\n\\\"A place to which the general public has a right to resort, not necessarily a place devoted solely to the uses of the public, but a place which is in point of fact public rather than private, a place visited by many persons and usually accessible to the neighboring public.\\\" People v. Whitman, 178 App.Div. 193, 165 N.Y.S. 148, 149. Roach v. Eugene, 23 Or. 376, 31 P. 825.\\nThe record shows that the public has no right to use the site indicated for baptismal purposes, and according to the proof such site was used with and by permission and consent of the owner which would, of course, take away from it any element of being a public place. It is, in fact, private property to which access has been given to the public on occasions over a long period of time, but this permission has not ripened into an absolute right to use the same as a baptismal place by the general public so as to make it a public gathering place.\\nWe have considered all of the assignments of error to the action of the chancellor and find them to be without merit.\\nAffirmed.\\nBubnett, Chief Justice, and Pelts, Dyeb and Holmes, Justices, concur.\"}"

tenn/8529054.json

@@ -0,0 +1 @@
+"{\"id\": \"8529054\", \"name\": \"V. S. Lewis, v. Eston Simmons\", \"name_abbreviation\": \"Lewis v. Simmons\", \"decision_date\": \"1956-04-05\", \"docket_number\": \"\", \"first_page\": \"60\", \"last_page\": \"64\", \"citations\": \"200 Tenn. 60\", \"volume\": \"200\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-11T02:50:17.076338+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"V. S. Lewis, v. Eston Simmons.\", \"head_matter\": \"V. S. Lewis, v. Eston Simmons.\\n(Nashville,\\nDecember Term, 1955)\\nOpinion filed April 5, 1956.\\nCummings & Melton, Woodbury, for plaintiff in error.\\nMaeshall E. Duggin, Woodbury, for defendant in error.\", \"word_count\": \"749\", \"char_count\": \"4373\", \"text\": \"Mr. Justice Prewitt\\ndelivered 'the- opinion of the Court.\\nThis is a suit on a promissory note in the sum of $403.94, and the Justice of Peace gave Simmons a judgment for this amount against the defendant, Lewis. This judgment was rendered and entered on February 26, 1955. The defendant Lewis did not appeal to the Circuit Court within the two full days after the entry of the judgment, but waited until March 15, 1955, when he filed his petition for certiorari and supersedeas, and presented this petition to two justices of the peace in Cannon County. The defendant executed a pauper's oath in lieu of bond. These proceedings were without notice to the plaintiff.\\nOn June 8,1955, the plaintiff made a motion to dismiss the . certiorari- and supersedeas in the Circuit Court of Cannon County, for .the reason.that the defendant's petition for certiorari and supersedeas was presented to tvyp.justices of peace based upon the pauper's oath without' any notice to the plaintiff Simmons. The Circuit Judge sustained this motion, and dismissed the certiorari and supersedeas.\\nThere are. two statutes applicable to this case and we think should be considered and construed together. The. first statute, Section 27-805, Vol. 5, Tennessee Code Annotated, is as follows:\\n\\\"Two (2) justices'of the peace may, within twenty ' (20)-days after judgment,, grant a certiorari and su-persedeas to remove the proceedings of a justice of the peace to the Circuit Court.\\\" \\u2022\\nThe second statute, Section 27-813, Yol. 5, Tennessee Code Annotated, is as follows:\\n' \\\"No- supersedeas', shall issue upon application in forma pauperis, without express order of the judge dispensing with security. Such order may be made by the judge only on notice to the adverse'p\\u00e1rty of the application.\\\" '\\nThe purpose of making the pauper's oath available to poor persons is to assure that no person because of, his economic plight would be denied his day in court. However, the adverse party is entitled to his day in court on this issue. Consequently the Legislature has. seen fit to require that notice be given the adverse party when a litigant makes application for a supersedeas based on .the pauper's oath before a judge.\\nWe think a reasonable construction of the first statute is that the petitioner should have notice of the application for certiorari on the pauper's oath.\\nThe question of petitioner's poverty is an issue of fact and should only be. decided .and determined , on the merits. The only-way that this , can be successfully determined by the two justices- of the peace or the judge is to' give notice to the adverse party; so that he might, present proof contesting petitioner's poverty if he so desires.\\nIn Caruthers, History of a Lawsuit, (6th Ed.) Section 478, pages 430, 431, it is said:\\n\\\"A supersedeas may also be issued on the pauper oath, but not unless the judge so especially directs in his fiat. And he cannot make such order unless notice is first given to the adverse party of the application, so that he may appear and resist it.\\\"\\nAgain in the same authority, Section 478, page 431, it is said:\\n\\\"The reason why a supersedeas is not issued of course on the pauper oath is that it would release property that might have been levied on from the custody of the officer, and restore it to the defendant without any security for its forthcoming, if he should fail in his certiorari. Unless a strong case of merits and a manifest case of poverty is made out, the plaintiff ought not to be exposed to this danger of losing his debt, and hence he ought to have notice to be present to contest these points before the order is made.\\\"\\nIn the case of Combs v. Vogeli, 66 Tenn. 271, it is said at pages 272 and 273:\\n\\\"The manifest object of the statute is, that when the application is made in forma pauperis the opposite party may have an opportunity to be present and contest the application, by showing that it ought not to be granted except upon bond and security, as in other cases.\\\"\\nSee also Tennessee Procedure in Law Cases by Higgins and Crownover, paragraph 1680, page 668.\\nWe are of the opinion that there was no error in the judgment of the Circuit Court and it is affirmed.\"}"

tenn/8529130.json

@@ -0,0 +1 @@
+"{\"id\": \"8529130\", \"name\": \"Petition, for Rule of Court Activating, Integrating and Unifying the State Bar of Tennessee\", \"name_abbreviation\": \"In re Rule of Court Activating, Integrating & Unifying the State Bar of Tennessee\", \"decision_date\": \"1955-10-07\", \"docket_number\": \"\", \"first_page\": \"78\", \"last_page\": \"89\", \"citations\": \"199 Tenn. 78\", \"volume\": \"199\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-11T02:49:54.444962+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Petition, for Rule of Court Activating, Integrating and Unifying the State Bar of Tennessee.\", \"head_matter\": \"Petition, for Rule of Court Activating, Integrating and Unifying the State Bar of Tennessee.\\n(Nashville,\\nDecember Term, 1954.)\\nOpinion filed October 7, 1955.\\nAlfred T. Adams, Sr., W. BaymoNd Denney* John J. Hooker and Thomas Wardlaw Steele, of Nashville; Walter P. ArmstroNG, Jr., Walter ChaNdler and W. Edward Quick, of Memphis; John H. Doughty and Clyde W. Key, of Knoxville; Aubrey P. Folts and JohN C. Goins, of Chattanooga; Mayke W. Miller, of Johnson City; W. M. Leech, of Charlotte; J. Malcolm Shull, of Elizabethton; and AlleN J. Strawbridge, of Dresden, for petition.\\nForrest ANDrews, JohN JeNNINGs, Jr. and Wilbur W. Piper, of Knoxville; George H. Armistead, Jr., F. A. Berry, Charles L. Cornelius, Maclin P. Davis, Jr., D. L. Lansden, W. E. Norvell, Jr., Jay G. Stephenson, Albert W. Stockell and E. J. Walsh, of Nashville; Steven C. Stone, of Chattanooga; Samuel 0, Bates, Leo Bearman and John S. Montedonioo, of Memphis; I. D. Beasley, of Carthage; Frank N. Bratton, of Athens; J.H. Cummings, of Woodbury; James H. Epps, Jr., of Johnson City; Walter M. Haynes, of Winchester; and Wm. C. Tipton, of Covington, opposed.\", \"word_count\": \"2952\", \"char_count\": \"17196\", \"text\": \"Me. Justice Tomlinson\\ndelivered the opinion of the Court.\\nThe Bar Association of Tennessee, an unincorporated voluntary association of Tennessee lawyers, has petitioned this Court to adopt a rule integrating the Bar of Tennessee; that is, to order a State-Organized Bar to which every lawyer of the State must belong in order to practice law in this State. Proponents and opponents of the proposed rule orally argued the question on a day previously fixed. Briefs on each side have likewise been submitted.\\nGenerally speaking, such a Bar has for its purpose the forwarding of the administration of justice and the prevention of the practice of law by unlicensed persons. One Court, Florida, Petition of Florida State Bar Ass'n, Fla., 40 So. (2d) 902, 904, has defined such integration as \\\"the process by which every member of the bar is given an opportunity to do his part in performing the public service expected of him, and by which each member is obliged to bear bis portion of the responsibility.\\\" It is said by that Court that no State which has adopted such a rule has abandoned it thereafter. The fact that 27 States have so integrated their bars is, within itself, a strong and disinterested recommendation that such a Bar has much about it that is desirable.\\nBut, in accordance with the truth that the acquiring of something of value requires the payment of a valuable consideration, such integration necessarily would require the yielding of some of the privileges enjoyed by the voluntary association. The reason for this is readily realized by the fact, in the language of the introductory text of 114 A. L. R. 161, that \\\"integrated bars have the common characteristics of being organized by the state or under the direction of the state, and of being under its direct control, and in effect they are governmental bodies.\\\"\\nThe Wisconsin Court considered such government organization to be quite a price to pay. It called attention to the fact that a necessary incident thereof is a requirement that dues in amounts fixed by the Court must be paid by every lawyer in the state, and, the integration being \\u00bf governmental organization, the Court, or some other state authority, would have to exercise some degree of control over the expenditure, etc. of such funds. The Wisconsin Court then said:\\n\\\"The bar as integrated would be definitely subordinate to the court and under the disagreeable necessity of having its activities policed by the court and this being true, the price of integration would be much greater than this court or any lawyer ought to be willing to pay, unless the exigencies in respect to standards of admission and discipline are so great as to warrant adoption of some such expedient, either temporarily or -upon a limited scale.\\\" In re Integration of Bar, 249 Wis. 523, 25 N. W. (2d) 500, 502.\\nWe have no definite opinion as to the extent of the accuracy of the aforestated conclusion of the Wisconsin Court, but we call attention to it in passing for whatever it may be worth.\\nOf the 27 states which have integrated bars, 4 have been put into effect by order of Court only. The rest of these States have taken such action pursuant to approval and purported authority of the legislative bodies of 23 States.\\nThis Court is faced at present with an entirely contrary situation. The General Assembly of our State did last February, and in unmistakable terms, place its stamp of disapproval upon the idea of state integration of our Bar. Its Chapter 54 of the Public Acts of 1955 purports to forbid such integration. Its language is:\\n\\\"That no person shall be granted or denied the license or right to practice law in Tennessee because he or she is or is not a member of any lawful Club, Association or Guild.\\\"\\nThe time element considered, we are under the necessity of believing that this statute was enacted in anticipation, and for the purpose, of defeating proponents ' petition to state-integrate our Bar.\\nIt is said by petitioners here that Chapter 54 is unconstitutional in that it is a trespass by the Legislature into a field constitutionally reserved exclusively for the judiciary. Respondents, on the other hand, insist that the Legislature is vested with the authority to fix the qualifications and conditions under which an individual may practice law in Tennessee. They further say that this statute must be presumed valid until it is otherwise adjudged, and that this Court has no jurisdiction to adjudi cate that question in these proceedings because the jurisdiction of this Court is solely appellate.\\nIf Courts have inherent power to prescribe qualifications required for the practice of law, it seems to follow, as held by the Supreme Court of Massachusetts, in Collins v. Godfrey, 324 Mass. 574, 87 N. E. (2d) 838, 841, that \\\"the Supreme Judicial Court, as under the Constitution the highest court in the Commonwealth, is the proper representative of the judicial department and the repository of the power.\\\" This Court's power, then, in this respect is original, rather than appellate. That being true, its adjudication as to whether Chapter 54 deprives it of this original authority is only an incident to its decision as to whether it will exercise such authority.\\nThe inherent right of Courts to prescribe qualifications necessary for the practice of law does not mean that the Legislature is without authority in that field. The property, rights, liberties and lives of people are continuously entrusted to lawyers. So, the State is vitally interested in the qualifications and integrity of those into whose hands such vital trusts are continuously placed. Thus, a legislative requirement that individuals who would practice this profession must first meet certain reasonable conditions and qualifications is only the exercise by the Legislature of the police power with which that department of our government is vested. Lamb v. Whitaker, 171 Tenn. 485, 490, 105 S. W. (2d) 105.\\nBut the exercise of such authority by the Legislature does not mean, that this Court, in the exercise of its authority within the premises, may not require qualifications more extensive than those exacted by the Legislature. Read: Integration of Bar Case, 244 Wis. 8, 11 N. W. (2d) 604, 12 N. W. (2d) 699, 151 A. L. R. 586-608, and cases there cited.\\nIn, considering, then, whether a legislative enactment with reference to the right to practice law in this State is an exercise by the Legislature of its police power, it may be necessary to keep in mind that it is one thing for a .statute to say that individuals must have certain qualifications in order to practice, but an entirely different thing for the statute to say that individuals need not have certain qualifications in order to practice.\\nMany distinguished lawyers of this State from time to time over a long period of years have earnestly sought to procure an integrated bar either by legislative enactment or court rule. Many of our distinguished lawyers have just as earnestly sought to defeat these efforts. Each, no doubt, has been animated by that which he or she thought to be for the best interest of the public, the courts, and the profession. There is no need to detail the facts as they have existed from time to time during that long period further than to recite the conditions pertinent to the decision on this petition, as those conditions exist at this time.\\nOne of those conditions, to wit, the enactment (as distinguished from its validity) of Chapter 54 of the Public Acts of 1955 has heretofore been mentioned. Another is with reference to the present attitude of the lawyers of the State as revealed by the record before us.\\nAt the present time there are approximately 3,600 persons licensed to practice law in Tennessee. Twenty-two hundred of these (61% plus) are members of the unincorporated Bar Association of Tennessee. Fourteen hundred (39% minus) are not members of that Association. When it, the Bar Association of Tennessee, initiated the proceedings which have resulted in the present petition it sent to each of its 2,200 members a ballot whereon such member was requested to vote secretly either for or against tlie proposed integration. Such ballots were not sent to those 1,400 lawyers, who are not members of that association.\\nBy seeking to ascertain the non-coerced wishes of its 2,200 members the Bar Association very properly recognized that the views and wishes of these lawyers is an important factor in determining whether an integrated bar should be ordered. The integration of the Bar is of as much concern to those 1,400 lawyers who are not members of the Association as it is to the 2,200 who are members. In onr opinion, therefore, the Association made a material mistake in not affording to these 1,400 the same opportunity to express their wishes as was afforded to the 2,200 members of the Association.\\nThe very fact that these 1,400 lawyers have not elected to become members of the well functioning and capable unincorporated Bar Association is quite strong evidence that at least a large majority of them is opposed to a rule forcing membership therein. There is no evidence to the contrary.\\nOf the 2,200 members of the Association to whom ballots were sent, 557 did not return the ballot. This necessarily means that these 557 were either (1) in doubt as to the wisdom of forcing membership, or (2) indifferent about it. In either of these events, it is accurate to say that the petition to integrate does not have the support of these 557 lawyers.\\nOf the 1,643 members of the Association who did return the ballots 836 voted in favor of State Integration, and 807 voted against it. This means that approximately 23% of the lawyers of this State have expressed a desire for integration, and about an equal percent have affirmatively rejected the idea.\\nThus it is that in consideration of this petition this Court is faced with the established fact that at this time only 23% of the lawyers of the State have expressed themselves as being in favor of State Integration. The most probable conclusion from the evidence is that the remaining 77 % are either postively against it, or in doubt as to its wisdom, or entirely indifferent about it. The question thus posed is whether under these circumstances the public interest will be served by this Court forcing membership in this organization.\\nWhen a petition to integrate its Bar was before the Minnesota Court, in denying the petition, the Court said\\nthat the desired \\\"beneficial results\\\" which might be derived through an integrated bar could be attained only if it \\\"receives the wholehearted support of a decided majority of the members of the bar.\\\" Petition for Integration of Bar of Minn., 216 Minn. 195, 12 N. W. (2d) 515, 519.\\nThe Massachusetts Court, in denying a petition to integrate by a rule of Court, said this:\\n\\\" since it does not appear that members of the bar of Massachusetts generally are in favor of action by the court to establish an integrated bar, it is not at present advisable for the court by rule or order to establish an integrated bar so called in which every attorney in the Commonwealth must be a member in order to practice law, and that the establishment at present of such an integrated bar would not he in the interest of the public and the administration of justice. \\\" In re Integrated Bar, 321 Mass. 747, 74 N. E. (2d) 140, 141.\\nIn the case of the Wisconsin Supreme Court, a legislative Act directed the Court to integrate the Bar. That Court, however, postponed the matter because a large number of lawyers of the State had not been afforded an opportunity to express their views thereon. 244 Wis. 8, 11 N. W. (2d) 624, 151 A. L. R. 615. Thereafter that Court denied the petition in 25 N. W. (2d) 500, 503, with the statement, among others, that:\\n\\\"We regret that a nearly complete support of the existing bar associations by members of the bar has not been achieved, and advocate its complete and whole-hearted support by the individual members of the bar.\\\"\\nThe Montana Supreme Court took similar action, one reason assigned being that: \\\"The lawyers of the state have not spoken in impressive enough numbers to convince us that the time is at hand when such measures are justified.\\\" In re Unification of Montana Bar Ass'n, 107 Mont. 559, 87 P. (2d) 172, 173.\\nOf the 4 States in which integration is said to have been put into effect by rule of Court an entirely different situation from that with which we are faced is found to exist in at least three of those States in that Nebraska, In re Integration of Nebraska Bar Ass'n, 133 Neb. 283, 275 N. W. 265, 114 A. L. R. 151, and Florida, Petition of Florida State Bar Ass'n, Fla., 40 So. (2d) 902, the question was submitted by secret ballot to all the lawyers in each State and the returns in each were quite strongly in favor of the proposed rule. The Oklahoma Court, In re Integration of State Bar of Oklahoma, 185 Old. 174, 95 P. (2d) 113 seems to have had the approval of some kind of a State Bar Act. 151 A. L. R. 617.\\nThe other situation to which this Court is compelled to give serious thought, in acting upon this petition, is that the General Assembly of this State did by a very large majority in each house during the present year enact the heretofore referred to statute purporting to forbid the State Integration of our Bar. Assuming, but not de ciding, the invalidity of that statute, is it in the public interest for this Conrt to act contrary to the wish of this coordinate branch of the government, as expressed by the enactment of that statute?\\nRequiring qualifications for the practice of law is, as we have seen, a field in which both the legislative and judicial departments of onr State may enter. The extent to which the Legislature may go in snch field seems to depend upon whether a particular statute enacted by it in this field is a reasonable exercise of the police power of the State. The judicial department, in the exercise of its inherent authority, may require more of the officers of its Courts.\\nThroughout the history of this State, the judicial department and the legislative department have not come in conflict upon this question except perhaps in the Lawyers Tax Cases reported in 55- Tenn. 565. It is well that such is the case because, as observed by the Court of Wisconsin in its Integration of Bar Case, 244 Wis. 8, 11 N. W. (2d) 604, 622, 151 A. L. R. 586, 612-613, \\\"The state suffers essentially by every such assault of one branch of the government upon another; and it is the duty of all- the coordinate branches scrupulously to avoid even all seeming of such.\\\"\\nThe public welfare demands cooperation between the legislative and judicial branches of our Government, and an avoidance of unnecessary controversies between them. Thus the wishes of the legislative branch is entitled to much consideration in acting upon this petition.\\nThis Court is faced with a different situation from that faced in any one of the 27 States which have put integration into effect. To recapitulate, only- a \\u2022 small minority of the lawyers of this State seem to support the idea of being forced to become a member of a State Bar Associa tion. Our Legislature, which, has a great interest in this field, and speaks for the general public, has likewise expressed by a very large majority vote its opposition. Ther\\u00e9 are no necessities, in so far as is made to appear, which require such a material innovation governing the right to practice law in this State. No State Supreme Court, in so far as this Court can find, has required integration of the bar in the face of these facts. On the other hand, several, though faced with facts considerably more favorable to the proposal than those which this Court must consider, have rejected such proposal as being contrary to the public welfare.\\nSo, too, this Court is of the opinion that under the circumstances stated, it would he against the public interest to adopt a rule forcing State bar integration of Tennessee lawyers. Hence, the petition must be denied, but without prejudice, of course.\"}"

tenn/8530402.json

@@ -0,0 +1 @@
+"{\"id\": \"8530402\", \"name\": \"Tennessee Gas Transmission Co. v. Vineyard et ux.\", \"name_abbreviation\": \"Tennessee Gas Transmission Co. v. Vineyard\", \"decision_date\": \"1950-08-31\", \"docket_number\": \"\", \"first_page\": \"331\", \"last_page\": \"335\", \"citations\": \"191 Tenn. 331\", \"volume\": \"191\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T17:28:49.072129+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"Tennessee Gas Transmission Co. v. Vineyard et ux.\", \"head_matter\": \"Tennessee Gas Transmission Co. v. Vineyard et ux.\\n(Nashville,\\nDecember Term, 1949.)\\nOpinion filed August 31, 1950.\\nClaude B. Stephenson, of Centerville, Abmistead, Waller, Davis & Lansden, of Nashville, for plaintiff in error.\\nJames B. Brown, of Centerville, for defendants in error.\", \"word_count\": \"905\", \"char_count\": \"5122\", \"text\": \"MR. Justice Gailob\\ndelivered the the opinion of the Court.\\nThis is a condemnation proceeding in which the Tennessee Gas Transmission Company acquired a right-of-way for its pipeline through 5 6/10 acres of land belonging to the defendants Vineyard and wife. The jury of view allowed defendants $3,250 \\u2014 -$500 for the value of the property taken, and $2,750 as incidental damages. On exception and appeal by the Company, the case was tried before the Circuit Judge and a jury in the usual way. This trial resulted in a total verdict of $2,400,- \\u2014 $500 for the property taken, and $1,900 for incidental damages. This verdict of the jury was received, in the absence of the Circuit Judge, by a member of the Hickman County Bar. Later, in its motion for a new trial, the Transmission Company assigned this irregularity as error. The motion for new trial was overruled; the Transmission Company perfected an appeal to the Court of Appeals, and that Court finding itself bound by our decision in Brown v. State, 186 Tenn. 378, 210 S. W. (2d) 670, affirmed the judgment.\\nThe Transmission Company has filed petition for certiorari, which we granted, and the sole question pre sented is whether the verdict in a civil case, received by a member of the Bar, in the absence of the Trial Judge, who heard the case, was void since it omitted an indispensable requisite of constitutional trial by jury, Constitution Art. I. Section 6; Woods v. State, 130 Tenn. 100, 106, 169 S. W. 558, L. R. A. 1915F, 531, so that reversal is necessary in spite of Code Section 10654. Munson v. State, 141 Tenn. 522, 213 S. W. 916.\\nThe facts were as follows: The Honorable Douglas T. Bates of the Centerville Bar, at the request of Judge Wallace Smith, the regular Circuit Judge who had presided at the trial, announced that Judge Smith was unavoidably detained, and that he (Bates), at the request of Judge Smith, would receive the verdict. Thereupon the Transmission Company objected to this and made a motion for a mistrial. Mr. Bates overruled this motion, and ordered that the jury be brought into the courtroom to return its verdict. This was done and the jury then returned their verdict and was polled by Mr. Bates, who received the verdict. This situation is essentially different from any that we have been able to find, either in our own reported cases, or in those of other jurisdictions which have come to our attention.\\nMr. Bates, though a member of the Bar, was without any color of judicial authority whatever, and when he announced that he would receive the jury's verdict, counsel for the Transmission Company made immediate objection and moved a mistrial.\\nThese facts clearly distinguish this case from Brown v. State, supra, where, when the Judge who had heard the case, announced that another Judge would receive the verdict, defense counsel apparently agreed to the irregularity by remaining silent, and so waived his right to an exception. Brown v. State, supra, 186 Tenn., at page 391, 210 S. W. (2d) 670. In the case of State v. Ridout, 161 Tenn. 248, 30 S. W. (2d) 255, 257, 71 A. L. R. 830, a member of the Bar was held to be a \\\" judge de facto\\\" because of Ms election as Special Judge at a prior term, but to the writer of this opinion, Judge Cook's dissent is the safer expression of law and much of it is applicable to the case before us here, for example: \\\"No consideration of public policy would justify the conclusion that a member of the bar or other person by merely assuming the judge's position could clothe himself with the power of a judge . . .\\\" 161 Tenn, at page 278, 30 S. W. (2d) at page 264.\\n\\\"Mere assumption of power cannot give color to an unauthorized judicial act upon grounds of public policy from which the de facto theory arises. Mere claim to be a judge does not constitute one a de facto judge. There must be some claim of right to the office, or else performance of its duties so long acquiesced in by the public as to raise a presumption of colorable right. Hamlin v. Kassafer, 15 Or. 456, 15 P. 778, 3 Am. St. Rep. 176; Wilcox v. Smith, 5 Wend. (N. Y.) 231, 21 Am. Dec. 213; Hildreth v. McIntire, 1 J. J. Marsh. (Ky.) 206, 19 Am. Dec. 63.\\\" 161 Tenn. at page 288, 30 S. W. (2d) at page 267.\\nThough we sympathize with Mr. Bates in the embarrassing position in which he was placed in following the instruction of Judge Smith, we conclude that his receipt of the jury's verdict over the objection of counsel for the Transmission Company, being without any color of judicial authority, was a nullity and void. In the absence of statute or stipulation, even in civil cases, receipt of the jury's verdict by anyone other than the Judge who tried the case is a nullity. 53 Am. Jur'., Trial, Section 1021, p. 707; 64 C. J., p. 1057, and numerous cases there cited, to support the rule.\\nReversed and remanded.\\nAll concur.\"}"

tenn/8530449.json

@@ -0,0 +1 @@
+"{\"id\": \"8530449\", \"name\": \"Trobaugh v. Harper\", \"name_abbreviation\": \"Trobaugh v. Harper\", \"decision_date\": \"1950-12-10\", \"docket_number\": \"\", \"first_page\": \"409\", \"last_page\": \"412\", \"citations\": \"191 Tenn. 409\", \"volume\": \"191\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T17:28:49.072129+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"Trobaugh v. Harper.\", \"head_matter\": \"Trobaugh v. Harper.\\n(Knoxville,\\nSeptember Term, 1950.)\\nOpinion filed December 10, 1950.\\nC. FraNK Davis, of Morristown, for complainant.\\nO. L. McMahan, of Morristown, for defendant.\", \"word_count\": \"594\", \"char_count\": \"3584\", \"text\": \"Mr. Justice Prewitt\\ndelivered the opinion of the Court.\\nComplainant, Mrs. George Harper, was regularly employed by her sister, Edna Trobaugh, operating as Trobaugh Florist in Morristown, Tennessee. She received an injury to her knee, growing out of and in the course of her employment, on December 26, 1945. She signed a settlement agreement with her employer and insurance carrier oh May 13, 1946 providing for a settlement of her then disability. This- settlement on May 13, 1946 was for a lump sum payment of $266.40. She continued to go to Dr. Penn for treatment to her knee but was finally dismissed on July 11, 1946. This physician advised her that further observation was not necessary and that in his opinion, no permanent disability had resulted. The complainant's bill in the present case was not filed until August 11, 1947, so the question is whether Williams' Code, Section 6874 applies, or whether Code Section 6884 controls.\\nSection 6874 provides as follows: \\\"6874. Claim for compensation is barred, when. \\u2014 The right to compensation under this .chapter shall be forever barred, unless one year after the accident resulting in injury or death occurred the notice required by the preceding section is given the employer and a claim for compensation under the provisions of this chapter is filed with the tribunal having jurisdiction to hear and determine the matter\\\".\\nSection 6884 provides:\\n\\\"6884. Limitation of time in which certain acts shall be done. \\u2014 The time within which the following acts shall be performed under this chapter shall be limited to the following periods, respectively.\\n\\\"(1) Limit of time of actions or proceedings.\\u2014 Actions or proceedings by an injured employee to determine or recover compensation, one year after the occurrence of the injury.\\n\\\"(3) To obtain -judgment. \\u2014 Proceedings to obtain judgment in case of default of employer for thirty days to pay any compensation due under any settlement or determination one year after such default.\\\" \\u2022\\nThe Chancellor held that under subsection 3 of Section 6884, complainant's suit was not barred.\\nIn Section 6874 a general period of limitation was expressed, whereas in Section 6884 a more detailed and specific treatment of limitations of actions was made. The latter provisions limit and control the former. Southern R. Co. v. Grigsby, 155 Tenn. 285, 292 S. W. 3.\\nIt will be observed that in Section 6874, a suit is contemplated. This is also true in the first part of Section 6884, but under subsection 3 a provision is made for additional time where a settlement has been made between the parties. In the latter case, thirteen months is available in certain cases.\\nIt appears that while there was a lump sum settlement made on May 13, 1946, the complainant continued to go to her physician who treated her until July 11,1946 when be stated that'he thought further treatment to her knee was unnecessary.\\nHowever, it appears that the defendant made a lump sum settlement, which seems adequate, and all that was due therein was paid. Subsection 3 of Section 6884 contemplates a case of default of the employer of thirty days to pay any compensation due under the settlement. Here there was no default, and no facts which would give rise to an estoppel on the part of the defendant.\\nIt results that the decree of the Chancellor must be reversed and the suit dismissed at the cost of the complainant below.\\nAll concur.\"}"

tenn/8530681.json

@@ -0,0 +1 @@
+"{\"id\": \"8530681\", \"name\": \"State ex rel. McCanless, Commissioner of Finance etc., et al. v. Standard Oil Co. of Louisiana\", \"name_abbreviation\": \"State ex rel. McCanless v. Standard Oil Co. of Louisiana\", \"decision_date\": \"1941-03-08\", \"docket_number\": \"\", \"first_page\": \"358\", \"last_page\": \"372\", \"citations\": \"188 Tenn. 358\", \"volume\": \"188\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-11T01:00:24.008273+00:00\", \"provenance\": \"CAP\", \"judges\": \"DeHaven, J., and Frank T. Fancher, Special Justice, dissent. Chambliss & McKinney, JJ., concur.\", \"parties\": \"State ex rel. McCanless, Commissioner of Finance etc., et al. v. Standard Oil Co. of Louisiana.\", \"head_matter\": \"State ex rel. McCanless, Commissioner of Finance etc., et al. v. Standard Oil Co. of Louisiana.\\n(Nashville,\\nDecember Term, 1948.)\\nOpinion filed March 8, 1941.\\nRehearing Denied May 17, 1941.\\nRoy H. Beeler, Atty. Gen., William F. Barry, Sol. Gen., and Harry Phillips, Asst. Atty. Gen., for complainant.\\nT. M. Milling, of New Orleans, La., and Armistead, Waller, Davis & Lansden, of Nashville, for defendant.\\nDesignated for Publication March 11, 1949.\", \"word_count\": \"3545\", \"char_count\": \"20353\", \"text\": \"Mr. Chiee Justice Green\\ndelivered the opinion of the Court.\\nThis is a suit of the State on the relation of the Commissioner of Finance and Taxation and the Attorney General to collect from defendant the so-called inspection fee said to have been imposed by section 6809 et seq. of tlie Code on certain gasoline, tractor fuel, and kerosene stored in Tennessee during a three-year period beginning October 1, 1936. Defendant denied liability. The chancellor sustained the defense as to the gasoline and tractor fnel (classed as gasobne) in so far as section 6809 et seq. imposed a tax. He held defendant liable for so mncb of the imposition as represented a reasonable inspection charge, shown to have been 1/25 of the exaction. The chancellor held the kerosene subject to the whole imposition except a portion of that product not actually inspected. That portion be ruled subject to the tax included in the imposition but not to the inspection charge. Both parties appealed.\\nThe defendant bandied the gasoline and tractor fuel herein involved just as The Texas Company handled the gasoline in The Texas Company v. George F. McCanless, Commissioner, et al., 177 Tenn. 238, 148 S. W. (2d) 360, and on the authority of that case the chancellor's decree with respect to the defendant's liability on account of the storage of those products is affirmed.\\nSection 1140 of the Code, as amended by chapter 130 of the Acts of 1933, considered at length in The Texas Company v. George F. McCanless, Commissioner, does not relate to kerosene. If the kereosene handled by the defendant is to be relieved of the burden of section 6809 et seq. of the Code it must be because the kerosene stored, upon which the imposition is based, remained in interstate commerce. The determination of this question, of course, requires consideration of the facts.\\nThe defendant had a refinery at Baton Rouge, Louisiana. From that refinery it shipped large quantities of gasoline, tractor fuel, and kereosene to Memphis. These products were shipped in barges construct^, for that purpose. The defendant maintained thirteen or fourteen large storage tanks at Memphis.\\nDefendant had a considerable business in Arkansas, Mississippi, Kentucky, and Missouri. Its products could he delivered more cheaply in much of that territory through shipment by water to Memphis and distribution from Memphis to certain portions of the other States by railroad tank cars.\\nIt is not necessary to consider the methods used by defendant in handling through Memphis its Ethyl gasoline, or Esso as it is called, and its methods of handling tractor fuel. Liability for tax with respect to these products is obviated by the Act of 1933 above referred to. Indeed, defendant's liability for the tax with respect to its straight gasoline, or Essolene as it is called, handled through Memphis, is thus obviated. However, the Essolene and kerosene were handled in the same manner and consideration of the method of handling the two products becomes necessary to determine defendant's liability with respect to the kerosene.\\nIt is to be gathered from the proof that defendant's business was well organized and that by frequent reports and investigations defendant kept well posted on the probable needs of its trade. The Essolene and kerosene distributed from Memphis by defendant was shipped in bulk to supply the needs of defendant's whole trade out of Memphis \\u2014 intrastate and interstate. When the barges containing these products would reach Memphis, such portion of the Essolene and kerosene as defendant contemplated would be needed in other States was pumped, into separate tanks, marked \\\"Export Tanks, \\\" maintained as described in The Texas Company v. McCanless, Commissioner, supra. The remainder of the Essolene and kerosene, intended for defendant's Tennessee business, was pnmped into other tanks. There was no separation of the Essolene and kerosene for the Tennessee trade from the Essolene and kerosene for the trade in other States until the barges reached Memphis.\\nAs above stated, the defendant maintained thirteen or fourteen storage tanks at Memphis. According to figures given in the deposition of. its president, the capacity of the export tanks was 89,000 barrels, the capacity of the tanks for Tennessee business was 212,700 barrels. The capacity of the kerosene export tanks was 10,600 barrels,, the capacity of the kerosene tanks for Tennessee business was 43,300 barrels. From these figures it appears that much the greater portion of defendant's products distributed from Memphis was applied to Tennessee business. As to the kerosene, less than one-fourth of that product stored at Memphis was shipped out of the State.\\nReferring again to the testimony of defendant's president, it appears that the amount of Essolene and kerosene allotted to export tanks when the barges reached Memphis was based on estimates of its representatives and salesmen in the export territory. Orders for the Essolene and kerosene from this export territory were not received until after the allocation. The Essolene and the kerosene in the export tanks were placed therein to await orders, although it is fair to say that the defendant was able to estimate with much accuracy the extent of these orders and quantities of these products necessary to supply the orders.\\nThe Essolene and kerosene stored in the export tanks might have been diverted by defendant to domestic needs but according to the proof there had been no such diversion.\\nThe defendant contends that there was no break, in the sense of the law, in the interstate journey of the kerosene here involved from the refinery at Baton Rouge, Louisiana, until it reached its destination in Mississippi or Arkansas or State other than Tennessee. That the nature of the stop at Memphis of so much of the kerosene as went beyond limits of Tennessee was not such as to take the product from the flow of interstate commerce. The defendant rests its contention on the line of decisions of the Supreme Court of the United States such as Texas & N. O. RR. Co. v. Sabine Tram Co., 227 U. S. 111, 33 S. Ct. 229, 57 L. Ed. 442; Hughes Bros. Co. v. Minn., 272 U. S. 469, 47 S. Ct. 170, 71 L. Ed. 359, and Carson Petroleum Co. v. Vial, 279 U. S. 95, 49 S. Ct. 292, 73 L. Ed. 626.\\nIn Texas & N. O. RR. Co. v. Sabine Tram Co., supra, lumber was ordered manufactured and shipped from mills in Texas to a seaboard point in that State. There was no sale for lumber at this port, all the lumber was designed for export when purchased, and all of it was exported. The fact that it was shipped on local bills of lading from one point in Texas to another in that State did not stamp the shipment as intrastate, since it was designed for export. The shipper was liable for the export rate established by the Interstate Commerce Commission and the Texas intrastate rate was not applicable. There was a continuity of transportation in which the delay and transshipment in ocean vessels did not make any break.\\nIn Hughes Bros. Co. v. Minn., supra, logs were cut in Minnesota and in accordance with a contract of sale were floated by river to Lake Superior and there loaded on the purchaser's ships for transportation to their destination in Michigan. It was held that these logs began a continuous interstate journey when they began their drive down the river, not when they were loaded into the vessels, and that the logs were not subject to taxation in Minnesota after the floatage in the river began. As in the Sabine Case, it was held that a change in the method of transportation did not affect the continuity of the interstate movement.\\nThe case of Carson Petroleum Company v. Vial, supra, is strongly pressed upon us by defendant's counsel both in brief and argument. In that case an exporter bought oil in interior States to fill foreign orders. The oil was shipped in railroad tank cars to a point on the Mississippi River in Louisiana and there stored in tanks. From these tanks it was pumped into ships for transportation to foreign consignees. None of the oil was sold from the tanks to local buyers. All of it went abroad. The Oil was accumulated and held in the tanks for no purpose other than transshipment to foreign countries. Under these circumstances, it was held that the oil in the tanks was not subject to tax in Louisiana.\\nOther cases relied on by the defendant are akin to the foregoing. In most instances the merchandise, transportation of which was halted, had been sold before the initial shipment. None of it was intended for sale or distribution at the first stop. All of it was designed for the foreign buyer. The intermediate stops were quite generally for safety or availability of further transportation \\u2014 to await the arrival of ships or safe, ice-free or usable waters. We think these cases are distinguishable from the case before us. The chancellor was of opinion that the present case fell within the authority of General Oil Co. v. Crain, 209 U. S. 211, 28 S. Ct. 475, 52 L. Ed. 754. We are likewise of the same opinion. The holding of that case is aptly stated in the somewhat recent case of Minnesota v. Blasius, 290 U. S. 1, 54 S. Ct. 34, 37, 78 L. Ed. 131, as follows:\\n\\\"In General Oil Co. v. Crain, 209 U. S. 211, 28 S. Ct. 475, 482, 52 L. Ed. 754, the company conducted an oil business at Memphis where it gathered oil from the North and maintained an establishment for its distribution. Part of the oil was deposited in a tank, appropriately marked for distribution in smaller vessels in order to fill orders for oil already sold in Arkansas, Louisana, and Mississippi. The Court held that the first shipment had ended, that the storage of the oil at Memphis for division and distribution to various points was 'for the business purposes and profit of the company,' and that the tank at Memphis had thus become a depot in its oil business for preparing the oil for another interstate journey. \\\"\\nIt is likewise held in General Oil Company v. Crain that the storage of such oil in Memphis was a business subject to the identical imposition levied by section 6809 et seq. of the Code.\\nIt is said, however, that the authority of General Oil Co. v. Crain, supra, has been weakened by criticism of that decision in Carson Petroleum Co. v. Vial, wherein it was pointed out, among other things, that the earlier decision was by a divided Court. We may, however, observe that the decision in Carson Petroleum Co. v. Vial was by a divided Court and that more recently General Oil Co. v. Crain has been frequently cited by the Supreme Court with apparent approval as in Minnesota v. Blasius just above referred to, Nashville C. & St. L. R. Co. v. Wallace, 288 U. S. 249, 53 S. Ct. 345, 77 L. Ed. 730, 87 A. L. R. 1191; Federal Compress & W. Co. v. McLean, 291 U. S. 17, 54 S. Ct. 267, 78 L. Ed. 622, and quite recently in McGoldrick v. Berwind-White Coal Mining Co., 309 U. S. 33, 60 S. Ct. 388, 84 L. Ed. 565, 128 A. L. R. 876.\\nIt seems to us, apart from the authority of General Oil Co. v. Crain, supra, the liability of defendant for the tax on the kerosene involved is sustained by several other decisions of the Supreme Court.\\nIn what may be called the parent authority in cases like this, Coe v. Town of Errol, 116 U. S. 517, 6 S. Ct. 475, 29 L. Ed. 715, logs were gathered in New Hampshire in what the Court termed an entrepot looking to ultimate transportation to another State. While thus stopped or stored, but before they had started on their final journey, these logs were held subject to taxation in the State of New Hampshire. In other words, the interstate movement had not begun and the mere fact that such movement was contemplated did not withdraw the property from the State's power to tax it.\\nA case quite in point is Atlantic Coast Line R. Co. v. Standard Oil Co., 275 U. S. 257, 48 S. Ct. 107, 72 L. Ed. 270. In that case oil was shipped from foreign refineries to points in the State of Florida and there stored in tanks of the oil company. From these tanks the oil was distributed in the oil company's business in the State of Florida. The question was whether there was a continuous shipment from the refineries to the points of ultimate destination in Florida. The Court held that the original shipment ended when the oil was stored in the tanks at the Florida ports. That shipments from the tanks to the other Flordia points were intrastate and that intrastate rates were applicable to such reshipments.\\nIn Minnesota v. Blasius, supra, cattle were consigned from other States to the stockyards in St. Paul, Minnesota. They were sold at the stockyards and were being held in pens there by the buyer, subject to his disposition. It was held that the cattle had acquired a situs for local taxation as the buyer's property, although in the course of his business he was offering- them for resale in the same market, when the tax was imposed, and sold them soon afterwards for interstate consignment. In this case it was said :\\n\\\"If the interstate movement has not begun, the mere fact that such a movement is contemplated does not withdraw-the property from the state's power to tax it. Coe v. [Town of] Errol, 116 U. S. 517, 6 S. Ct. 475, 29 L. Ed. 715; Diamond Match Co. v. Ontonagon, 188 U. S. 82, 23 S. Ct. 266, 47 L. Ed. 394. If the interstate movement was begun, it may be regarded as continuing, so as to maintain the immunity of the property from state taxation, despite temporary interruptions due to the necessities of the journey or for the purpose of safety and convenience in the course of the movement. Coe v. Errol, supra; Kelly v. Rhoads, 188 U. S. 1, 23 S. Ct. 259, 47 L. Ed. 359; Champlain Co. v. Brattleboro, 260 U. S. 366, 43 S. Ct. 146, 67 L. Ed. 309, 25 A. L. R. 1195. Formalities, such as the forms of billing, and mere changes in the method of transportation, do not affect the continuity of the transit. The question is always one of substance, and in each case it is necessary to consider the particular occasion or purpose of the interruption during which the tax is sought to be levied. Champlain Co. v. Brattleboro, supra, 260 U. S. at page 377, 43 S. Ct. at page 146, 67 L. Ed. 309, 25 A. L. R. 1195; Southern Pacific Terminal Co. v. Interstate Commerce Comm., 219 U. S. 498, 31 S. Ct. 279, 55 L. Ed. 310; Texas & N. O. R. Co. v. Sabine Tram Co., 227 U. S. 111, 33 S. Ct. 229, 57 L. Ed. 442; Carson Petroleum Co. v. Vial, supra. The mere power of the owner to divert the shipment already started does not take it out of interstate commerce if it appears ' that the journey has already begun in good faith and temporary interruption of the passage is reasonable and in furtherance of the intended transportation.' Hughes Bros. Co. v. Minnesota, 272 U. S. 469, 476, 47 S. Ct. 170, 172, 71 L. Ed. 359. Where property has come to rest within a state, being held there at the pleasure of the owner, for disposal or use, so that he may dispose of it either within the state, or for shipment elsewhere, as his interest dictates, it is deemed to be a part of the general mass of property within the state and is thus subject to its taxing power.\\\"\\nOther decisions of the Supreme Court similar to the foregoing might be referred to but these are sufficient for illustration. Cases like this, dependent upon the facts for their solution, as the Supreme Court has recognized, are difficult. The Justices of that Court quite frequently differ in their conclusions as to the proper disposition of same. That Court, dealing almost daily with questions arising under the Commerce Clause of the Federal Constitution, article 1, sec. 8, cl. 3, finds difficulty in dealing with such questions. Necessarily a Court like this, where such questions infrequently arise, has much more difficulty. It is a matter of gratification, therefore, that errors on our part in such matters can be corrected.\\nIf the defendant here, after unloading the barges at Memphis, had stored the Essolene and kerosene indiscriminately, commingling that intended for domestic use and that intended for use out of the State, such storage wonld clearly have been taxable. The initial shipment having ended at Memphis, the storage of the products at Memphis was taxable until another interstate shipment had begun. It does not seem to us that the storage in separate tanks of an amount of gasoline estimated to be required to fill future orders in other States, to be shipped out when those orders were received \\u2014 it does not seem to us these things amounted to the beginning of another interstate journey.\\nThe defendant refers to a number of decisions of the. Supreme Court of the United States which we do not find it necessary to consider. Cases arising under the antitrust law and cases considering statutes regulating the purchase and sale of products in interstate commerce. These decisions are not applicable here.\\nCounsel for defendant press upon our consideration a discussion of the Berwind-WMte and earlier cases by Professor Powell in Harvard Law Review, Yol. 53, No. 6, p. 909. Among other things the learned commentator takes the position that when a use tax is imposed with respect to goods introduced from sister States, a distinction should be made in favor of wholesalers and jobbers who receive and store goods awaiting orders from other States. This, because he thinks the ultimate burden in such case will fall on the consumers in other States. However, it is recognized that the Supreme Court has not made such a distinction yet and, as an inferior tribunal herein, we think it more seemly to endeavor to follow the higher authority than to pioneer.\\nDefendant assigns error upon the action of the chancellor in taxing it with cost of the actual inspection of all its products stored at Memphis. We think there was no error in this, regardless of whether the products had left the channels of interstate commerce or not. Pure Oil Co. v. Minnesota, 248 U. S. 158, 39 S. Ct. 35, 63 L. Ed. 180.\\nIt is to be doubted, however, whether this question is properly before the Court. The defendant prayed a special appeal from only so much of the chancellor's decree as taxed it with part of the costs and as held it liable ' ' for any portion of the tax sued for. ' ' It was fully recognized by defendant all through the case that sections 6809 et seq. of the Code levy an imposition which includes both a tax and an inspection fee. The appeal appears to be limited to the tax.\\nThe only evidence with reference to the amount of the inspection fee is that 1/25 of the imposition of section 6809 et seq. of the Code was the actual cost of inspection. There is nothing to indicate that an inspection fee in this amount was excessive. We find no reason to question the chancellor's finding that inspection was made of such part of the products as he charged with the cost thereof.\\nAs for the discrimination complained of between the excise tax on the storage of kerosene and the excise tax on the storage of gasoline, it is sufficient to say that Section 28 of Article 2 of the Tennessee Constitution authorizes the Legislature to tax privileges \\\"in such manner as they may from time to time direct.\\\" We do not understand that classification for taxation is forbidden by the Fourteenth Amendment to the Federal Constitution. Storage of gasoline and storage of kerosene are different privileges.\\nApart from the foregoing, defendant has no standing to question the constitutionality of section 13 of chapter 130 of the Acts of 1933. It stores in Tennessee three or four times as much gasoline as kerosene. Instead, therefore, of being adversely affected by any discrimination in the Act of 1933, it is a beneficiary thereof.\\nThe decree of the Chancellor is affirmed. Defendant will pay one-third of all of the costs of this Court and two-thirds of the costs will be taxed to the State.\\nDeHaven, J., and Frank T. Fancher, Special Justice, dissent. Chambliss & McKinney, JJ., concur.\"}"

tenn/8530835.json

@@ -0,0 +1 @@
+"{\"id\": \"8530835\", \"name\": \"Hunter v. Sheppard et al.\", \"name_abbreviation\": \"Hunter v. Sheppard\", \"decision_date\": \"1948-07-17\", \"docket_number\": \"\", \"first_page\": \"99\", \"last_page\": \"106\", \"citations\": \"187 Tenn. 99\", \"volume\": \"187\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-11T01:14:01.592124+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"Hunter v. Sheppard et al.\", \"head_matter\": \"Hunter v. Sheppard et al.\\n(Nashville,\\nDecember Term, 1947.)\\nOpinion filed July 17, 1948.\\nLutheb Cebasy, of G-allatin, for appellant.\\nHaeold Howsee, and Thos. Boyees, both of Gallatin, for appellees.\", \"word_count\": \"1588\", \"char_count\": \"9303\", \"text\": \"Me. Justice Gailoe\\ndelivered the opinion of the Court.\\n' The hill in this cause was filed by the complainant Hunter against the defendants Sheppard, et al. to enjoin the enforcement of a judgment at law secured hy Sheppard against Hunter in an action in negligence arising out of the operation of an automobile. The bill assails the judgment at law on two grounds, viz.; (1) that in the suit at law the Court had no jurisdiction of the person of the defendant Hunter because there had been no service of process upon him. (2) That, after default judgment for failure of defendant to appear, an order awarding an inquiry to fix the amount of damages had been entered in which there was a fatal defect or yariance in that it was alleged in the order that damages were to be assessed \\\"for an assault and battery,\\\" when tbe declaration sought damages for the negligent operation of an automobile.\\nThe appellant has abandoned ground one of the attack upon the judgment and by stipulation has agreed that the certified copy of the summons showing service had upon all the defendants in the law suit, was true and correct and that the defendant in the present case, Sheppard, should not be compelled to introduce other evidence than the certified copy of the summons to show the correctness of the return thereon.\\nFrom what we have stated, it results that the appeal here presents only the correctness of the Chancellor's holding that the words \\\"for an assault and battery\\\" in the order awarding an inquiry to fix the amount of damages, were harmless surplusage and could be elided without affecting the validity of the final judgment.\\nThe appellant has made numerous assignments of error but they are for the most part insufficient under our rule 14, (173 Tenn. 874) since they fail to state \\\"Wherein the action complained of is erroneous, and how. it prejudiced the rights of the appellant. ' '\\nAppellant states in his brief that all the assignments of error boil down to two propositions, and in the first proposition he says: 'It is the contention of complainant-appellant that a void judgment may be directly attacked by a bill filed in the Chancery Court for that purpose. The original bill filed in this cause was filed for that purpose and complainant-appellant thereby directly attacked the validity of said judgment rendered in the case, and the Chancellor should have sustained the bill in this case and perpetually enjoined the defendants from enforcing the collection of said judgment. We respectfully insist that the action of the Chancellor to the contrary constitutes error. In support of this contention of complainant-appellant, we cite and rely upon the authorities that follow:\\\"\\nHe follows this with a long list of authorities where Chancery Court has set aside void judgments. However, he begs the preliminary and essential question by failing to give authority to prove that the final (not interlocutory) judgment before us here is void. We think the appeal and the questions thereby presented resolves itself into a consideration of appellant's proposition two, which is as follows: \\\"Complainant-appellant earnestly insists that the judgment in the Circuit Court case which is complained of in the original bill in the case at bar is utterly void and of no effect, the cause of action alleged in the declaration filed in said case being based upon alleged acts of negligence averred against the defendants therein, and the default judgment rendered in said case could not have been based upon any other cause of action. However, the Circuit Court rendered a default judgment against the defendants therein for damages 'for assault and battery'. This is the main proposition complainant-appellant relies upon for a reversal of this cause. The judgment in the Circuit Court went beyond the scope of the pleadings in that case and the Court's action in so doing rendered said judgment void, the same being without pleadings to support it.\\\"\\nThe pertinent part of the order under attack is as follows: \\\"On motion of the plaintiff the defendants were solemnly called to come into Court and make defense to the plaintiff's declaration for damages for assault and battery, but, notwithstanding this call, the defendants came not. It is therefore considered by the Court that the plaintiff have and recover of the defendants his damages and costs; hut the amount of said damages not clearly appearing to the Court, it is considered and adjudged that the plaintiff have a writ of inquiry with respect to his said damages, which writ of inquiry shall be executed at the succeeding term of the Court. ' '\\nThis was an interlocutory' judgment. ' ' The judgment is interlocutory where a writ of inquiry must be issued thereon, or some other act done involving a future inquiry to determine the amount of recovery.\\\" 49 C. J. S., Judgments, sec. 216, p. 381.\\nThe final judgment in law case was :\\n\\\"In this cause the plaintiff moved the Court that the writ of inquiry heretofore granted be executed and that the plaintiff be awarded judgment against the defendant. The plaintiff also expressly recalled his demand for a jury and moved that the Court himself executed the inquiry.\\n\\\"Whereupon, on the examination of the witnesses in open Court and argument of counsel, it is considered by the Court that plaintiff's damages amount to Five Hundred Dollars ($500.00).\\n\\\"It is therefore ordered, adjudged and decreed that plaintiff have and recover of the defendants, Virgil Grant and Charlie Hunter, the sum of Five Hundred Dollars ($500.00), and the costs of this cause, for which let execution issue. \\\"\\nSince the effect of the stipulation is to admit that the Lower Court had jurisdiction of the person of the defendant, and there is no doubt that the Circuit Court, being a court of general jurisdiction, had jurisdiction of the subject matter, every reasonable presumption will be indulged to support the regularity of the pro ceedings in the law suit and the validity of the final judgment therein. Wilkins v. McCorkle, 112 Tenn. 688, 80 S. W. 834. Before the hearing on the inquiry the plaintiff withdrew his demand for a jury. This he had a right to do. Taylor v. Sledge, 108 Tenn. 719, 69 S. W. 266.\\nThe Trial Judge then heard evidence and argument of counsel and fixed the amount of damages. We think it must he conclusively presumed that in fixing the amount of damages he considered the declaration, (1) to determine the limit of the amount of damages, (2) to determine the cause of action from which the damages arose. McCartney v. Gamble, 184 Tenn. 243, 245, 198 S W. (2d) 552; Page v. Turcott, 179 Tenn. 491, 503, 167 S. W. (2d) 350; Pope v. Harrison, 84 Tenn. 82; Kindell v. Titus, 56 Tenn. 727.\\nClearly the Chancellor was correct in holding that the insertion of the words \\\"for assault and battery\\\" in the order awarding the Writ of Inquiry was surplusage and did not affect the validity of the final judgment. \\\"Surplusage does not vitiate\\\". No. 38, sec. 64, p. 80, Gibson's Suits in Chancery, 1937 Edition.\\nThe Trial Judge could correct this clerical error at any time since it was apparent on the face of the record, (College, etc. Mining Co. v. Smith, 160 Tenn. 93, 21 S. W. (2d) 1038) and we conclusively presume from the final judgment entered in the suit at law, that he did so.\\nFinally, it is to be considered that the original bill from which this appeal arises was filed in the Chancery Court to attack a judgment at law. The Chancellor's jurisdiction of such a cause is limited by well defined principles of equity. He does not preside over a court of review or appeal for the correction of errors and irregularities in the Circuit Court, but his jurisdiction to hear the canse and grant relief arises only when it appears that principles of equity require that action and that effective relief can be decreed. Accordingly, it is the general rule that the complainant to secure an injunction must show that the judgment was obtained by fraud, accident or mistake or that he has a meritorious defense which through no fault of his own, he was prevented from making. Gibson, supra. Freeman, Judgments, 5th Ed. Vol. 3, p. 2468. The complainant here does not assert that the judgment at law was rendered against him by fraud, accident or mistake, and he has introduced no proof whatever that he has any defense to the law suit from which the judgment resulted. While this Court is committed to the minority rule (Myers v. Wolf, 162 Tenn. 42, 56, 34 S. W. (2d) 201; Martin v. Slagle, 178 Tenn. 121, 156 S. W. (2d) 403; 49 C. J. S., Judgments, sec. 349, p. 705) that a Court of Equity in Tennessee will not require assertion of a meritorious defense before affording relief to set aside a judgment void for want of jurisdiction of the person of the defendant, we find no authority in our cases for extending the departure from the majority rule, and holding in any other case that equity will set aside or enjoin a judgment at law without first requiring complainant to show a meritorious defense.\\nFor the reasons stated, the Chancellor's decree is affirmed at appellant's cost.\\nAll concur.\"}"

tenn/8531490.json

@@ -0,0 +1 @@
+"{\"id\": \"8531490\", \"name\": \"Knowling v. State\", \"name_abbreviation\": \"Knowling v. State\", \"decision_date\": \"1940-04-06\", \"docket_number\": \"\", \"first_page\": \"56\", \"last_page\": \"62\", \"citations\": \"176 Tenn. 56\", \"volume\": \"176\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T21:54:07.670272+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Knowling v. State.\", \"head_matter\": \"Knowling v. State.\\n(Knoxville,\\nSeptember Term, 1939.)\\nOpinion filed April 6, 1940.\\nClements & Clements and Kenneely & Key, all of Knoxville, for plaintiff.\\nErNest F. Smith, Assistant Attorney-General, for the State.\", \"word_count\": \"1501\", \"char_count\": \"8610\", \"text\": \"Mb.. Justice Chambliss\\ndelivered the opinion of the Court.\\nPlaintiff-in-error operated a small loan business under the name of Lamar Lewis Company on the mezzanine floor of the Burwell Building in Knoxville, and was convicted under an indictment charging him with unlawfully engaging in the business of making loans in amounts of $300 or less without qualifying under Code, Section 6721 et seq., by first obtaining a certificate or permit from the Superintendent of Banks. He was fined $500 and appealed.\\nHis assignments of error raise, substantially, questions as to, (1) the preponderance of the evidence, (2) the admissibility of certain testimony, (3') the correctness of certain parts of the charge, and (4) the rejection of a motion to quash the indictment.\\nAs framed the assignments challenge the refusal of the trial Judge to direct a verdict at the conclusion of the evidence. This Court has never recognized with approval this practice of directing verdicts in criminal cases, but we have looked through the form of the assignments to the substance, which is as above stated. Also, it may be said here, in considering the evidence, that counsel is in error in stating that the presumption of innocence which prevails in the trial Court, likewise applies here. The opposite is true, and.we have repeatedly so held. Mahon v. State, 127 Tenn., 535, 156 S. W., 458; Cooper v. State, 123 Tenn., 37, 138 S. W., 826.\\nWe find no difficulty on the facts. It is not possible to read this record and conclude that Knowling was not conducting this small loan business and loaning money at otherwise prohibited rates, that is, in excess of six per cent.\\nThe real insistence here is that the State failed to prove two negatives, (1) that no certificate, or permit, had been issued to the defendant or his loan company by the Superintendent of Banks, and (2) that the business was not done on the Morris Bank Plan.\\nIt is true that an essential ingredient of the offense charged is that the business is being conducted without this permit; and it is also true that if the business is done on the Morris Bank Plan this particular permit is not exacted.\\nCounsel relies on Villines v. State, 96 Tenn., 141, 33 S. W., 922, to sustain his insistence that the State must not only prove the doing' of this business, but that it was being done without this permit. Counsel apparently fail to distinguish between the duty of the State to negative the exception or exempting proviso in the indictment, and the duty to carry the burden of proving the negative on the trial. The \\\"Villines case supports the first proposition that the indictment must charge that the exception or proviso has not been met. This has been settled in this State for one hundred and twenty years, since Judge Haywood's opinion in State v. Jones, 10 Tenn. (2 Yerg.), 22, where the offense was harboring a slave \\\"without the consent of his or her owner, ' ' and the indictment having omitted these words, the omission was held fatal. And see Wehunt v. State, 136 Tenn., 223, 188 S. W., 939, where this holding is approved, and many cases cited. The indictment here clearly charges that the defendant is doing this business without having first obtained this certificate from the Superintendent of Banks. And the State has carried the burden of showing by the testimony of an employee of the State Banking Department that the defendant had not obtained this certificate, unless this testimony was inadmissible and should have been excluded on the objection of defendant. The point was made, and is here urged, that the witness admitted that he was not personally in charge of the particular records pertaining to this matter, and that he admitted further that his information came to him from another, and was not the result of his personal examination. It is plausibly argued that this testimony should have been rejected as hearsay, and that with this out the State failed to prove that the defendant had not obtained the certificate.\\nWe find it unnecessary to decide this issue, for the reason that we cannot agree with learned counsel that the burden was on the State to prove this negative, as to which the. fact was peculiarly within the knowledge of the defendant. A distinction apparently overlooked is clearly recognized by the highest authorities on evidence between the obligation of the State to charge in the indictment the failure of the defendant to bring himself within the exception, or exempting proviso (here the procuring of the permit), and the obligation to prove this negative on the trial' when the determinative fact is peculiarly within the knowledge of the defendant. We quote from Greenleaf's Law of Ev. (15 Ed.), sec. 79':\\n\\\"But where the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. Such is the case in civil or criminal prosecutions for a penalty for doing an act which the statutes do not permit to be done by any persons, except those who are duly licensed therefor; as, for selling liquors, exercising a trade or profession, and the like. Here the party, if licensed, can immediately show it, without the least in convenience; whereas, if proof of the negative were required, the inconvenience would he very great.\\\" A number of cases are cited in the notes.\\n2 Chamberlayne's Evidence, section 983, is to the same effect, referring to numerous cases. We are cited to no reported Tennessee case on the point, but we find that the Federal Court of Appeals for the Sixth Circuit has so held in Faraone v. United States, 259 F., 507, 509, wherein the defendant was on trial for carrying on a retail liquor business without having obtained a Federal license. In that case the government had made no effort, as it did do here, to prove the averment in the indictment that the special tax required by law had not been paid. The Court said:\\n\\\"If payment had been made, the fact was peculiarly within defendant's knowledge, and he could have shown it without inconvenience. He could thereby have prevented any proceeding's against him, or could have brought them to an end at any time. The subject is discussed at length in 2 Chamberlayne's Evidence, section 983i, which references to many cases.\\\" The following cases are cited with the comment that they are \\\"directly in point.\\\" Williams v. People, 121 Ill., 84, 11 N. E., 881; People v. Boo Doo Hong, 122 Cal., 606, 55 P., 402; State v. Foster, 23 N. H., 348, 55 Am. Dec., 191; State v. Shaw, 35 N. H., 217; Wheat v. State, 6 Mo., 455.\\nAnd see 20 Am. Jur., paragraph 150, where it is said: \\\"But where a negation is peculiarly within the knowledge of the defendant, the burden is on him to establish that fact. Thus, where a charge is made that the defendant carried on a certain business without a license, the fact that ho has a license is peculiarly within his knowledge and he must establish that fact or suffer conviction,\\\" citing Conyers v. State, 50 Ga., 103, 15 Am. Rep., 686; State v. Krasne, 103 Neb., 11, 170 N. W., 494, citing R. C. L.; In re Oliver, 21 S. C., 318, 53 Am. Rep., 681; Bell v. State, 62 Tex. Cr. R., 242, 137 S. W., 670, 36 L. R. A. (N. S.), 98, Ann. Cas. 1913C, 617; State v. Harding, 108 Wash., 606, 185 P., 579, citing R. C. L.\\nThis seems a fair and sound rule of evidence. In the instant case the defendant did not take the stand, or offer any evidence to refute the proof of the plaintiff that he was doing a small loan business, or any evidence that he had complied with the law in securing the required certificate. We hold that the case was made out by the State.\\nAnd so on the question that he was doing business similar to that of a Morris Plan Bank in which circumstances the certificate is not required. No proof was made of what is the peculiar nature of this particular form of business and no effort made to show that this defendant did a business of this character. This was a matter of defense, and if not the rule of evidence above approved would have application, this being again a fact peculiarly within the knowledge of the defendant.\\nWe have examined the objections to the charge. While the trial judge did get somewhat confused in giving some figures and calculations to the jury, he corrected himself and we think no material injustices have resulted. We find no error and the judgment is affirmed.\"}"

tenn/8531658.json

@@ -0,0 +1 @@
+"{\"id\": \"8531658\", \"name\": \"McClellan v. Tennessee Electric Power Co.\", \"name_abbreviation\": \"McClellan v. Tennessee Electric Power Co.\", \"decision_date\": \"1938-11-25\", \"docket_number\": \"\", \"first_page\": \"58\", \"last_page\": \"64\", \"citations\": \"174 Tenn. 58\", \"volume\": \"174\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T22:19:35.884272+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"McClellan v. Tennessee Electric Power Co.\", \"head_matter\": \"McClellan v. Tennessee Electric Power Co.\\n(Knoxville,\\nSeptember Term, 1938.)\\nOpinion filed November 25, 1938.\\nRehearing denied January 21, 1939.\\nWilkerson & WilkersoN, of Chattanooga, for plaintiff in error.\\nBrown & Spurlock, of Chattanooga, for defendant in error.\\nThis case reprinted and annotated in 120 A. L. R. 928.\", \"word_count\": \"1497\", \"char_count\": \"8602\", \"text\": \"Mr. Chief Justice Creen\\ndelivered the opinion of the Court.\\nThis is a suit for damages to recover for injuries sustained by the plaintiff while riding as a passenger on a bus of the defendant. The case was tried on a stipulation of facts and the trial judge rendered a judgment for defendant, from which the plaintiff appealed in error to this court.\\nBriefly stated, the facts are that this bus was being operated by defendant as a common carrier and that plaintiff was a passenger thereon. During the progress of the trip, the motorman lost consciousness and consequently lost control of the vehicle. The bus ran out of the highway into a pole on the side of the street, and the shock of this collision threw plaintiff out of his seat on to the aisle and floor. He sustained somewhat painfnl injuries for which, he sues.\\nIt is agreed that this particular motorman never suffered an attack of this sort before, that previous to the accident and thereafter he passed physical examinations and nothing wrong was found with him. That he had been in the employ of the defendant for some time, and that an examination after the accident disclosing him to be in good physical condition and indicating that his fainting was caused by some temporary condition, he was retained in the defendant's service. The stipulation of facts contains nothing pointing to negligence of the defendant in employing this motorman or retaining him in its service prior to the accident.\\nUnder these circumstances, the defendant insists that it exercised due care in the selection \\u00f3f the operator of this bus, that it had no reason to anticipate that the operator would suffer such an attack and in short that there is nothing to convict the defendant of the slightest negligence.\\nThis case has been submitted by counsel for the parties as though it was a simple case in tort. The case, however, is one by a passenger against a carrier for breach of contract of carriage. Under- a number of previous decisions, we think the trial judge reached the wrong conclusion.\\nIn Pullman Palace Car Company v. Gavin, 93 Tenn., 53, 23 S. W., 70, 21 L. R. A., 298, 42 Am. St. Rep., 902, the court adopted the following from Wood on Master and Servant, Section 321:\\n\\\"In that class of cases where the master owes certain duties, either to third persons or the public, whether the same arise from contract or statutory obligations, a dif ferent rule of liability exists from that which prevails when the liability sonnds entirely in tort. When, by contract or statute, the master is bound to do certain thing's, if he intrusts the performance of that duty to another he becomes absolutely responsible for the manner in which the duty is performed, precisely the same as though he himself had performed it, and that without any reference do the question whether the servant was authorized to do the particular act. Where the master, by contract or operation of law, is bound to do certain acts, he cannot excuse himself from liability upon the ground that he has committed that duty to another, and that he never authorized such person to do the particular act. Being bound to do the act, if he does it by another he is treated as having done it himself; and the fact that his servant or agent acted contrary to his instructions, without his consent, or even fraudulently, will not excuse him.\\\" [page 57.]\\nThe case before us seems to fall directly under the authority of Knoxville Traction Company v. Lane, 103 Tenn., 376, 53 S. W., 557, 46 L. R. A., 549. In that case a female passenger on a street car was wantonly approached and insulted by a motorman who at the time was drunk. Proof for the company showed that the motorman had not been drunk before and that the company was not guilty of any negligence in employing him or retaining him in its service. ' Not being guilty of any such negligence, it was argued that the Traction Company did not in any sense authorize the injury complained of and did not ratify wrongs perpetrated by its servant and therefore could not be held liable for his unlawful act. Among other things, this court said [page 383]:\\n\\\"The contract to carry passeng'ers is not one of mere toleration and dnty to transport the passenger on its cars, bnt it also includes the obligation on the part of the carrier to guarantee to its passengers respectful and courteous treatment, and to protect them, not only from violence and insults from strangers, but also against violence and insults from the carrier's own servants.\\\"\\nIn Knoxville Traction Co. v. Lane the court approved the language quoted above from Pullman Palace Car Co. v. Gavin, supra. The quotation just made from Knoxville Traction Co. v. Lane is reproduced and approved in Memphis Street Railway Co. v. Shaw, 110 Tenn., 467, 75 S. W., 713, and Neville v. Southern Railroad Co., 126 Tenn., 96, 146 S. W., 846, 40 L. R. A. (N. S.), 995.\\nIf the obligation of a carrier to its passenger is such as to make it liable for a willful injury inflicted by its servant upon the passenger, such an obligation must also carry liability for an unconscious injury inflicted by the carrier's servant upon the passenger. A willful act and an insensible act of the servant are alike beyond any implied authority of the master in the prosecution of his business. See Hunt-Berlin Coal Co. v. Paton, 139 Tenn., 611, 202 S. W., 935. The same reasons which have induced this court to hold a carrier liable for wilful torts of its servants require the conclusion that the carrier is liable for the insensible acts or omissions of its servants when such an act or omission is a breach of the contract of transportation. The master himself would be liable for such a breach.\\nViewing the case as one in contract, we do not have occasion to consider the liability of the master for a simple tort of his servant committed during a period of unanticipated unconsciousness or mental aberration.\\nIn a note to Neville v. Southern Railroad Co., supra, as reported in 40 L. R. A. (N. S.), 995, many cases are collected in accord. See also, 10 C. J., 888. The rationale of onr decisions which we follow herein is that the carrier as part of its contract of transportation must protect the passenger from all tortious acts of its employees and that for a breach of this contract, however occasioned, a passenger may recover. Commenting on decisions of this and other courts above referred to, it is said, 10 C. J., 889, \\\"While the carrier cannot be.regarded as an insurer of the safety of the passenger in all events, under this doctrine it may be regarded as insuring that the passenger will not be injured through the negligent or willful acts of its employees while engaged in performing a duty which the carrier owes to the passenger.\\\"\\nIt was stipulated between the parties plaintiff should have recovery for $300 if he was successful in this suit. Judgment for that sum is accordingly entered here, with costs.\"}"

tenn/8531988.json

@@ -0,0 +1 @@
+"{\"id\": \"8531988\", \"name\": \"Humphreys County ex rel. Cherry Bottom Drainage Dist. v. Burch et al.\", \"name_abbreviation\": \"Humphreys County ex rel. Cherry Bottom Drainage Dist. v. Burch\", \"decision_date\": \"1943-01-30\", \"docket_number\": \"\", \"first_page\": \"562\", \"last_page\": \"566\", \"citations\": \"179 Tenn. 562\", \"volume\": \"179\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-11T02:49:46.297318+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Humphreys County ex rel. Cherry Bottom Drainage Dist. v. Burch et al.\", \"head_matter\": \"Humphreys County ex rel. Cherry Bottom Drainage Dist. v. Burch et al.\\n(Nashville,\\nDecember Term, 1942.)\\n(Opinion filed January 30, 1943.\\nRoy Carter, of Waverly, and Stout & Porter,, of Clarksville, for appellants.\\nMack C. Simpson and J. E. Tubb, both of Waverly, for appellee.\", \"word_count\": \"969\", \"char_count\": \"5717\", \"text\": \"Mb. Justice Prewitt\\ndelivered tlie oioinion of tlie Court.\\nTlie chancellor held Chapter 684 of the Private Acts of 1937 creating the Cherry Bottom Drainage District constitutional and valid.\\nThe first bill was filed thereunder for the collection of taxes for the year 1937; and the second, for the collection of taxes for the year 1938.\\nThe defendants demurred to the bill on the ground that said Private Act was unconstitutional in that, among other things, it violated Article 2, Section 29 of the Constitution of Tennessee, which provides, in part, as follows:\\n\\\"The General Assembly shall have power to authorize the several counties and incorporated towns in this State, to impose taxes for county and corporation purposes respectively, in such manner as shall be prescribed by law; . . . \\\" (Italics ours.)\\nThe chancellor overruled the demurrer and the cause is here on appeal.\\nThe above Act was intended to apply to a civil district in Humphreys County and was intended to redeem certain waste lands and to improve the health of the people occupying the lands affected.\\nSection 7 of said Private Act provides:\\n\\\"That it shall be the duty of the Directors to obtain a list of the amounts of money each landowner along said ditch in said district has paid out as sponsor for said WPA Project in digging said ditch, and then shall estimate an amount which they think will pay the expenses of the Directors and employees in the reasonable maintenance, upkeep and perhaps repair of said ditch and lateral tributaries, and make an assessment against each. $100.00 assessed valuation of real estate in said district, according to the assessments of the Trustee's office, in such amount as will create sufficient fund to pay back to said sponsors the amount of money that they have advanced in sponsoring said WiPA Project with interest and also take care of the expenses of the Directors in the maintenance of said ditch and laterals, within two years, snch tax. rates not to exceed $1.00 on $100.00' worth of real estate, and after the expiration of the two years, and the payment of the money to said sponsors, the rate of tax for the upkeep and maintenance of .said ditch and laterals shall not exceed twenty-five cents on the $100.00 of real estate.\\\"\\nIn Quinn v. Hester, 135 Tenn., 373, 186 S. W., 459, it was held that Chapter 667, Private Acts of 1915, incorporating a school district, levying a school tax, on such district, and providing for its collection by the county trustee, is not in contravention of the Constitution, Article 2, 'Section 29, forbidding the delegation of the power of taxation except to counties or incorporated towns. However, in that case the Legislature fixed the amount of the tax rate in the Act and no discretion was left to the school district authorities.\\nIn Keesee v. Civil District Board of Education, 46 Tenn. (6 Cold.), 127, it was held that the Constitution of the State, Section 29 of Article 2, authorized the Legislature to confer the power of taxation on the counties and incorporated towns, but in the opinion it was stated that the implication is irresistable that the expression of the authority to delegate the power of taxation to the connties and towns, is an absolute exclusion of authority to delegate the power to any other agency. See, also, Waterhouse v. Cleveland Public Schools, 55 Tenn. (8 Heisk.), 857; Lipscomb v. Dean, 69 Tenn. (1 Lea), 546; Smith v. Carter, 131 Tenn., 1, 173 S. W., 430.\\nThese authorities go upon the proposition that the power given under said constitutional provisions to the counties and cities was an intendment to exclude all other local bodies. No such power was given to school districts, road districts, drainage districts, and kindred local agencies.\\nIn the Private Act in question in this cause it is left discretionary with the hoard of directors of the Drainage District to say what rate of taxation, not to exceed one dollar on every one hundred dollars worth of real estate, shall he assessed, and this provision in said Act, in our opinion, renders it unconstitutional and invalid.\\nIn the Quinn Case, Mr. Justice Greest, now Chief Justice, in considering the validity of an act creating a city school district in Carroll County, said:\\n\\\"Considering the second objection first, an examination of the act shows that there has been no attempt whatever to delegate the power of taxation. The tax for which the act provides is imposed directly by the Legislature. No discretion whatever concerning the imposition of this tax is left to the school district. The rate of the tax is fixed and the levy is made by the statute, and the collection of the tax committed to the county trustee, who is directed to collect it along with all other taxes according to the general laws of the State. Inasmuch as there is no attempted delegation of authority to the school district, section 29 of article 2 of the Constitution has no application.\\\" (Italics ours.)\\nIn Williamson v. McClain, 147 Tenn., 491, 249 S. W., 811, the constitutionality of the Private Acts of 1921, Chapter 416, section 7, authorizing and requiring the hoard of commissioners of a special school district created by the Act to levy a school tax, though fixing a maximum rate, was held to he an unlawful delegation of taxing power, which can he delegated only to counties and incorporated towns.\\nIt results that the decree of the chancellor will be reversed and complainant's hill dismissed.\"}"

tenn/8532418.json

@@ -0,0 +1 @@
+"{\"id\": \"8532418\", \"name\": \"Life & Casualty Ins. Co. of Tennessee v. City of Nashville\", \"name_abbreviation\": \"Life & Casualty Ins. Co. of Tennessee v. City of Nashville\", \"decision_date\": \"1940-03-02\", \"docket_number\": \"\", \"first_page\": \"688\", \"last_page\": \"702\", \"citations\": \"175 Tenn. 688\", \"volume\": \"175\", \"reporter\": \"Tennessee Reports\", \"court\": \"Tennessee Supreme Court\", \"jurisdiction\": \"Tennessee\", \"last_updated\": \"2021-08-10T22:05:23.750423+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Life & Casualty Ins. Co. of Tennessee v. City of Nashville.\", \"head_matter\": \"Life & Casualty Ins. Co. of Tennessee v. City of Nashville.\\n(Nashville,\\nDecember Term, 1939.)\\nOpinion filed March 2, 1940.\\nP. M. Estes and Sydney F. Keeble, both, of Nashville, for plaintiff in error.\\nE. C. Yokley, Jr., Charles G-. Blackard, and W. C. CheRRy, all of Nashville, for defendant in error.\", \"word_count\": \"3551\", \"char_count\": \"20833\", \"text\": \"Mr. Justice McKinney\\ndelivered the opinion of the Court.\\nThe plaintiff, Life and Casualty Insurance Company of Tennessee, sued the defendant City of Nashville, to recover damages to real property as the result of its changing the grade of Demonbreun Street in Nashville. The jury returned a verdict in favor of plaintiff for $500. Plaintiff's motion for a new trial, based upon the inadequacy of the award, was overruled. Thereafter the defendant entered its motion in arrest of judgment upon the ground that the declaration did not state a cause of action. That motion was sustained and the suit dismissed. The Court of Appeals affirmed. This court granted the petition of plaintiff for a writ of certiorari, and the ease has been argued by counsel at the bar of this court.\\nThe essential facts are as follows: In 1925 the Terminal Realty Company, a Tennessee corporation, was the owner of two adjoining lots located on Tenth Avenue in Nashville. This avenue runs north and south. The southernmost lot abuts on Demonbreun Street, which street runs east and west. In that year the Terminal Realty Company constructed a two-story brick and concrete building on said lots at a cost of $150,000. At the same time it borrowed $200,000' from plaintiff which it secured by a deed of trust on said two lots. In 1933 the City Council of Nashville passed an ordinance authoriz ing a bond issue of $150,000' for the purpose of constructing- a viaduct in order to extend Demonbreun Street west across the yards of the Louisville & Nashville Terminal Company. Tbe bonds were sold and defendant constructed this viaduct, completing same some time during tbe year 1934, but within less than a year prior to the bringing of this suit. This viaduct as constructed cut off ingress and egress to the first story of said building on Demonbreun Street, and shut out the light and air on the south side of the building.\\nIn 1935 the Terminal Realty Company defaulted in meeting its indebtedness to plaintiff, which was $112,750. The Terminal Realty Company being unable to liquidate this indebtedness, and in order to obviate a foreclosure of the mortgage on its property, entered into a contract with plaintiff under the terms of which it paid plaintiff $2,750 in cash, conveyed said two lots to it, and assigned to plaintiff its right of action or claim for the damage to said property resulting from the construction of said viaduct. In consideration of the foregoing plainitiff canceled the entire indebtedness which the Terminal Realty Company owed it. The assignment of the claim for damages was contained in the deed conveying the two lots to plaintiff, and is in this language:\\n\\\"And there is likewise transferred, conveyed and assigned to the said life and Casualty Insurance Company of Tennessee, its successors and assigns, all right and claim that the Terminal Realty Company has, or may hereafter acquire against the .Mayor and City Council of Nashville for damages to either or both of the above described tracts on account of the construction of the Demonbreun Street Viaduct, or any other account.\\\"\\nIt will be noted that the grantor assigned its right and claim against the \\\"Mayor and City Council of Nash ville\\\" instead of against the \\\"City of Nashville.\\\" Prior to 1913 the corporate name of this municipality was \\\"Mayor and City Conncil of Nashville.\\\" By Chapter 22, Private Acts of 1913\\u00a1, the corporate name was changed to \\\"City of Nashville.\\\"\\nThe Court of Appeals and the trial court sustained the defendant's motion in arrest upon the theory that the declaration does not disclose an assignment by the Terminal Realty Company of its right of action against the defendant City of Nashville, or that the plaintiff has acquired title to such right of action in any manner. The authorities in general, including the decisions of. this court, are to the contrary.\\nIn 13 Am. Jur., Corporations, page 270, it is said: \\\"It is the general rule that in case of the misnomer of a corporation in a grant, obligation, written contract, notice, etc., if there is enough expressed to show that there is such an artificial being, and to distinguish it from all others, the body corporate is well named, although there is a variation of words and syllables.\\\"\\nThe text in 14 C. J., 324, is as follows:\\n' ' The general rule therefore is that the mere misnomer of a corporation in a bond, note, or other deed or contract does not render the same invalid or inoperative, but the corporation may sue or he sued thereon in its true name with proper allegation and proof th\\u00e1t it is the corporation intended; and its identity may be established by parol evidence. Nor will a grant or conveyance to or by a corporation be invalidated by a misnomer if its identity as the corporation intended is established.\\\"\\nIn Precious Blood Society v. Elsythe, 102 Tenn., 40, 45, 46, 50 S. W., 759, 760, it is said:\\n\\\"Under these conditions it is too late, even if the right ever existed, and by the averment just quoted they in tended to assert it, for the cross complainants to call in question this deed for misnomer.\\n\\\"But, without regard to time and character of pleading on this record they cannot do so. The record leaves no doubt that the grantor in this deed is the corporation created by the articles of incorporation. Its identity is put beyond question. This being so, the general concurrence of modern authority is to the effect that a misnomer or variation from the precise name of a corporation in a grant or obligation by it or to it is not material if the identity of the corporation is unmistakable, either from the face of the instrument or from proof and aver-ments.\\\" (Citing authorities.) .\\nWe are referred to Trustees of McMinn Academy v. Reneau, 32 Tenn. (2 Swan), 94, 99, in which it was stated:\\n\\\"The misnomer of the corporation is no ground of objection. The first bond is made payable to William Simpson and others, by the description of 'Trustees of the McMinnville Academy, in Hawkins county,' &c., and the corporate name is 'McMinn Academy. ' It has been held, and we think properly, that where a deed is made to a corporation, by a name' varying from the true name, the plaintiffs may sue in their true name, and aver in the declaration that the defendant made the deed to them, by the name mentioned in the deed. [Medway Cotton Mfg. v. Adams], 10 Mass., 360 363; [New York African Soc. v. Varick], 13 Johns., 38; Ang. & Ames on Corp., 584, (third edition.) \\\"\\nAlso to Bank of Tennessee v. Burke and Burke, 41 Tenn. (1 Cold.), 623, 625; in which it was said:\\n\\\"The law now is, that a departure from the style of the corporation will not avoid its contracts, if it substantially appear that the particular corporation was intended; and an ambiguity may, under proper averments, be explained by parol evidence, in. this, as in other cases, to show the intention. It was so held in the Trustees of McMinn Academy v. Reneau et al., 32 Tenn. (2 Swan), 94.\\\"\\nIn that case the snit was begun before a justice of tbe peace, so that there were no averments with respect to the misnomer. Since it appears without contradiction that the Terminal Realty Company intended to assign to plaintiff its right of action against defendant, we are of opinion, therefore, that plaintiff had a right to prosecute this suit against the City of Nashville. This is a clear case of misnomer, as appears from the uncontroverted evidence.\\nThe question as to the sufficiency of the pleadings in a case of misnomer, such as appears in the present case, presents a different proposition. The sufficiency of the declaration as a pleading was in no wise questioned by defendant. On the other hand it went to trial upon the merits, thereby treating the declaration as stating a good cause of action. The trial court entertained the same view because he charged the jury, as a matter of law, that plaintiff had acquired the right and claim of the Terminal Realty Company against the City of Nashville. No exception was taken to this feature of the charge, and defendant made no request for other or different instructions. All parties treated the assignment as valid. The only plea filed by defendant was that of \\\"not guilty.\\\" Such a plea in an action of this character puts in issue two facts, the alleged wrongful act, and the title of the plaintiff: History of a Raw suit (2 Ed.), 196. As heretofore stated, the plaintiff established its title by uncontroverted testimony. The case was defended only upon the grounds that the property was not damaged, and that plaintiff's predecessor in title had consented to the construction of this viaduct and had thereby, implied ly, waived any claim for damages resulting from its construction.\\nWe are further of opinion that the allegations in the petition were sufficient to give defendant notice that it was claiming, by assignment, the right of action which the Terminal Bealty Company had against it for damage to its property as a result of the construction of the Demonbreun Street viaduct. In the first place, it sued the City of Nashville. In the second place, it alleged that the damage to this property was committed by the City of Nashville. In the third place, it alleged that the Terminal Bealty Company had conveyed the two lots to it, and in the deed had assigned to it is cause of action for damage done to said property as a result of the construction of the viaduct. Counsel concede that if the declaration had averred that in assigning the cause of action against the \\\"Mayor and City Council of Nashville\\\" the Terminal Bealty Company intended to assign its cause of action against the \\\"City of Nashville\\\" the declaration would be sufficient. We think that was the reasonable and logical effect of its averments; that counsel for defendant so understood and treated it, and that, in any event, defendant's motion questioning its sufficiency came too late. It may be seriously questioned whether under modern authorities it is necessary in case of a misnomer to affirmative aver that the instrument was made to plaintiff in the name mentioned therein. This is implied from the fact that plaintiff is basing its cause of action thereon, and in order to recover plaintiff has to establish the fact that it was the corporation named in the instrument. The question of title becomes an issue in the case under a plea of the general issue.\\nFor the reasons stated we are of opinion that the other courts were in error in sustaining the. motion of defendant in arrest and dismissing the suit.\\nThe Court of Appeals, being of opinion that the motion in arrest was conclusive, declined to pass upon the other errors assigned by counsel for plaintiff. In such circumstances this court, were questions of fact are involved, remands the case to the Court of Appeals. Where however as in this case, no questions of fact are involved, but the assignments raise legal questions only and the case has to be remanded to the trial court for a new trial in order to expedite a hearing upon the merits and avoid unnecessary delay, this court will dispose of such questions, all of which relate to errors committed by the trial, court in the admission of evidence and his instructions to the jury.\\nAs to the quantum of damage suffered by plaintiff much testimony was introduced, the amount varying from nothing to $40,000. That, however, is a question to be determined by the jury and not by this court.\\nThe most serious error of which counsel for plaintiff complain was the introduction before the jury of ordinance No. 3213, enacted by the City Council of Nashville on October 21, 192,4. The introduction of this ordinance in evidence was vigorously opposed and excepted to. The essential facts with respect to this ordinance are as follows:\\nIn 1924 Tenth Avenue, South, adjoined and paralleled the yards of the Louisville & Nashville Terminal Company, on which there are many tracks. The two lots in question were located on the east side of Tenth Avenue, South, facing the railroad property.\\nOn October 7,1924, the Terminal Realty Company submitted a proposition to the City Council of Nashville, in which, all locally interested parties joined, the substance of which was that if the city would close that part of Tenth Avenue lying between its property and that of the Louisville & Nashville Terminal Company and convey same to it, that it would convey to the city a sufficient amount off the eastern part of its property on which to construct a new Tenth Avenue; and it and the other interested parties would pay the cost of constructing the new street. The purp.ose of this proposal was to enable the Terminal Realty Company to construct its building adjacent to the switchyards of the Louisville & Nashville Terminal Company, so as to make the house tracks of the railroad available to its tenants. This offer was accepted, and Tenth Avenue was changed so as to parallel the Terminal Realty Company property on the east. The building in question was subsequently constructed adjoining said switchyards.\\nThis building was constructed by the Terminal Realty Company pursuant to a contract of lease with the United States Post Office Department for ten years for a rental of $35,000 a year. The lease was duly executed, and having expired in 1935, the lessor was no longer able to pay its indebtedness to plaintiff. The foregoing proposition of the Terminal Realty Company was, in fact, agreed to by the city before it was submitted in writing on October 7,1924. The first five sections of the involved ordinance incorporate the offer of the Terminal Realty Company and its acceptance by the city without condition, reservation, or change of any kind or character. Section 6 of the ordinance provides:\\n\\\"That the Louisville and Nashville Terminal Company is hereby given the right to erect and maintain elevator shafts and structures at and upon the locations as shown on the blue print attached to the Terminal Realty Com pany's proposal, and which is marked Exhibit No. 2. See amendment No. 1.\\\"\\nThat provision had reference to certain elevators nsed for the purpose of transferring the mail from the railroad property to the upper floor of the Terminal Realty Building, from which the parcel work was to he handled. All of the foregoing was embraced within the proposal of October 7, 1924, and was agreed to by the Louisville & Nashville Terminal Company, the Louisville & Nashville Railroad Company, the Nashville, Chattanooga & St. Louis Railway, and various local property owners who had neighboring interests in the closing of the old and the opening of the new Tenth Avenue. Thereafter, on October 21, 1924, there was proposed by a committee of four councilmen, and attached to the ordinance, the following:\\n\\\"Provided, however, that the City of Nashville shall have the right and authority to erect and maintain over the yards and tracks of the Louisville & Nashville Terminal Company a viaduct of the full width of Demonbreun Street extended and passing immediately to the south of said structure and elevator shafts, as shown in Exhibit No. 2 aforesaid, should said elevator shafts and structure be tanding and in use at the time said viaduct is built; provided that said bridge shall have a clearance of not less than twenty-two (22) feet above the railroad rails, and that its pillars, posts, piers or supports shall obstruct or interfere as little as practicable with the tracks of the Terminal Company. However, should said structure and shafts be abandoned then this section shall be void and inoperative. ' '\\nIt was strenuously urged by the city that this provision of the ordinance was binding on the Terminal Realty Company, and consequently on plaintiff; and that it thereby consented to the construction of the viaduct and, impliedly, agreed to waive any claim for damag'es that it might receive as a result of the construction of the viaduct. To this we are unable to agree. There is nothing* of this nature mentioned in the offer of the Terminal Realty Company, which offer was accepted by the city. The name of the Terminal Realty Company is not mentioned in connection with that provision of the ordinance and, as we interpret that feature of the ordinance, it was not a party thereto. What the city council had in mind was that in the future when the city desired to construct this viaduct over the numerous tracks of the Louisville & Nashville Terminal Company it might object, or, at least, put the city to some trouble, expense, and delay in making the improvement, and that this would be a propitious time to have an agreement with the Louisville & Nashville Terminal Company about the matter. This was simply an agreement between the city and the Louisville & Nashville Terminal Company and was not intended to bind the Terminal Realty Company, particularly as to any damage it might suffer as a consequence of the construction of a viaduct. The trial court did not interpret said ordinance as contended by defendant; otherwise he would have dismissed the suit upon that ground. Since this part of the ordinance was not binding on the Terminal Realty Company, or its assignee, we think the court was in error in admitting it in evidence and that it was prejudicial to plaintiff.\\nFor the reasons heretofore stated the first three assignments of error are sustained.\\nError is assigned on the instruction given the jury to the effect that it is the claim of the city that \\\"the Terminal Realty Company acquired this property and became the owner of the property with knowledge of the fact that the Demonbreun Street Viaduct was to be built by the city. ' ' This instruction conveys an inference that if it possessed such knowledge that it would affect its right to recover' for the damage sustained, while, of course, such knowledge does not affect the rights of the property owner in the least. The city had a right to construct the viaduct and the abutting owner had no way to prevent it. Such knowledge is immaterial, and assignment number four is sustained.\\nAssignment five criticies the charge in that the court said to the jury that if they found that plaintiff had acquired the property described in the declaration from the Terminal Bealty Company \\\"for a valuable consideration,\\\" etc.\\nThe jury could not have been misled by this statement since the deed and other evidence establish without contradiction that plaintiff paid a valuable consideration for the property. Furthermore, the court had instructed the jury that plaintiff had acquired the right and claim of the Terminal Bealty Company against the city for damages.\\nComplaint is made of the action of the court in declining special request No. 3, tendered by counsel for plaintiff, which is as follows:\\n\\\"Testimony has been admitted as to properties other than the Terminal Bealty Building. This was simply to throw light on the subject. I charge you that the effect of this testimony depends upon the distance of those properties, the character of the surrounding neighborhoods, and the purpose for which they were constructed.\\\"\\nIn the absence of a fuller statement relative to the situation to which this request relates, we are unable to say that the court was in error in rejecting it. This re quest, so far as we can see, is meaningless.\\nBy the seventh assignment the following excerpt from the charge is criticised:\\n\\\"The Court further charges you if you should find from the evidence that the property by reason of the building of the Demonbreun Street Viaduct has enhanced the value of the plaintiff's property over and above any incidental damages that may have resulted from the erection of the Demonbreun Street Viaduct, then and in that event it would be your duty to find in favor of the defendant City of Nashville.\\\"\\nPlaintiff complains of the court in characterizing its damages as being \\\"incidental.\\\" It is insisted that the court has placed the cart before the horse, since the element of damages is the main issue and the enhancement the incidental feature of the controversy. It would be better to follow the rule announced in Acker v. Knoxville, 117 Tenn., 224, 96 S. W., 973, to the effect that the proper measure of damages in cases of this character is the difference between the market value just before the grading and just afterwards, with an abatement or offset of incidental benefits accruing to the particular property as a result of the improvement.\\nFor the reasons stated herein the judgments of the Court of Appeals and the Circuit Court will be reversed and the case remanded to the Circuit Court for a new trial.\"}"