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were fully paid during the year 1911, and on vited by the agents of the railway to alight, this ground the decree of the learned Court of and when she arose from her seat for the Civil Appeals affirming the decree of the purpose of alighting and was proceeding learned chancellor dismissing the bill must down the aisle of the car, and when she was be reversed, and a decree entered here ad a short distance from the steps leading from judging the fact of such payment, and perpet- the coach to the ground, the agents in charge ually enjoining the defendant from prosecut-of the movements of the train, without warning any action thereon.

ing or notice, gave the train of cars a start The complainants will recover of defendant forward so suddenly that intestate was all of the costs of the cause.

thrown to the floor of the car, suffering an injury, a broken hip, from which after much

suffering she died. (140 Tenn. 34)

A second count set forth that before the NASHVILLE, C. & ST. L. RY. V. AKIN.

train came to a stop intestate, after an in(Supreme Court of Tennessee. April 16, 1918.) vitation to alight, while walking down the 1. CARRIERS O316(3)-INJURIES TO PASSEN- aisle of the car was thrown to the floor by GERS-SUDDEN JERKS.

A railway is not liable under the res ipsa a jerk or lurch of unnecessary and unusual loquitur doctrine for an injury to a passenger

violence, etc. caused by the jerk or lurch of a train in com

That Mrs. Akin was thrown to the floor ing to a stop, in the absence of proof that such of the car in which she was a passenger at jerk was not necessarily incident to the stop.

the station of destination, and suffered fatal 2. CARRIERS 316(3)—INJURIES TO PASSEN injuries, was proved; but a close question of

GERS-STARTING TRAIN WHILE PASSENGER
IS ALIGHTING.

fact is presented on the record as to whether Where a train has stopped for a passenger the fall was caused by a sudden starting to alight, and while she was walking down forward of the train after it had come to aisle of car the train without warning suddenly started, the railway is liable for injury caus

a stop, as averred in the first count, or by the ed by the jerk, without proof by plaintiff that movement of the train incident to its coming start was unnecessarily violent.

to the first stop at Kingston Springs. It ap3. CARRIERS Om 316(3)--INJURY TO PASSEN-pears that after that stop the train pulled GER-SUFFICIENCY OF EVIDENCE.

Where in an action for death of a passenger up, in a short time, to a tank to take water, about to alight plaintiff does not show whether where it made a second stop, the distance the injury was due to jerk of train in stop- of the movement of the train to the tank ping for which railroad would not be liable, or being five to ten feet. The fate of plaintiff's to sudden start without warning, for which it would be liable, plaintiff can not recover.

case depends upon the close and narrow ques4. CARRIERS C318(10)-ACTION FOR INJURY tion of fact just stated. TO PASSENGER-SUFFICIENCY OF EVIDENCE. It affirmatively appears from the evidence

In an action against railway for death to offered by the plaintiff that there was no unpassenger while alighting from train, evidence held sufficient to show that the injury was due usual movement of the train as it approached to sudden starting of train without warning the station and came to the first stop. No and not to the jerk of train in stopping for the extraordinary jerk or lurch is shown. passenger to alight.

[1] There could be no recovery in the event Certiorari to Court of Civil Appeals.

that intestate fell before or at the time of the Action by John T. Akin, as administrator first stop, without such showing of an unof Mrs. Judith Ann Akin, against the Nash- usually violent or negligent jerk or lurch of ville, Chattanooga & St. Louis Railway. the train. The principle of res ipsa loquitur Judgment for plaintiff, and defendant brings does not apply, in that aspect, since it does certiorari. Affirmed.

not appear that there was any force or vioPardue & Morable, of Ashland City, Sav- lence that was not usual and incident to the age & Fort, of Clarksville, and Claude Wal- ordinary or efficient operation of the train. ler, of Nashville, for plaintiff in error. Faw An inference of negligence, on this phase of & Crockett, of Franklin, and Duke & Fetts, the case, arises only when the jerk or lurch of Ashland City, for defendant in error.

is shown to be extraordinary so as to be at

tributable to unskillful handling of the train WILLIAMS, J. This suit was instituted or other fault of the carrier. Jerks, jolts. by John T. Akin, as administrator of Mrs. and lurches, according to common knowledge, Judith Ann Akin, for the alleged wrongful occur in the ordinary nonnegligent operation death of his intestate by reason of injuries in and stopping of a train of a commercial railflicted on her while a passenger on a train way. of the railway company. It was averred in [2] But an inference of negligence on the the first count of the declaration, in sub- part of a carrier, which is involved in the stance, that Mrs. Akin boarded one of the doctrine of res ipsa loquitur, obtains upon company's trains at Bellevue for the purpose proof of injury to a passenger caused by the of going to Kingston Springs, and that when sudden starting of the train without warning the train reached the latter station the cars after it had come to a stop at the station, stopped where passengers were usually taken and while the passenger was alighting at on and discharged. Thereupon she was in- ) what he was induced to believe was the reg

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

ular or final stop for disembarkation, sinceory of plaintiff that she in her condition in the exercise of due care the train would probably would not have left her seat to not be so started. In such circumstances it leave the car until the train had come to a is not required of a plaintiff that he show full stop the first time. that the start was accompanied by an un- We are of opinion that the circumstances usually violent jerk or movement.

above narrated amounted to some evidence The result of the best decisions is thus as to when deceased fell. The railway comtersely stated in 4 R. C. L. p. 1245:

pany declined to introduce any witnesses. "In the case of persons in the act of board- The trial judge refused to direct a verdict ing or leaving its (the carrier's) vehicle, any upon the railway company's motion, and the movement of such vehicle before the passenger Court of Civil Appeals affirmed the ruling. has had a reasonable opportunity to reach a place of safety therein or to alight therefrom is That refusal being the only error assigned in negligence rendering the carrier liable to one this court in support of the petition for cerinjured thereby, whether such movement betiorari, we direct an affirmance. unusual or unnecessary or not. The negligence consists in the mere act of moving the vehicle under such circumstances."

(140 Tenn. 50) See, also, 10 C. J. p. 1031, and Railroad v. SEARIGHT et al. v. WHITE SEWING Mitchell, 98 Tenn. 30, 40 S. W. 72.

MACH. CO. Any necessary movement in such circumstances carries an inference of negligence if (Supreme Court of Tennessee. April 27, 1918.) the passenger is not warned.

1. JUDICIAL SALES C62_DEFAULT OF PUR[3] The railway company insists, however,

CHASER-RIGHT OF DEBTOR. that there is no evidence showing that the debtor's land is sold through chancery on time

Where at the instance of his creditors a deceased's fall was caused during, and as a without redemption and the sale is confirmed, result of, the second movement, rather than the debtor is deprived of title and all benefibefore or at the time of the first stop, and it cial interest and is entitled to be credited with

the proceeds of such sale, although the purchasis urged that in this attitude plaintiff can- er defaults in note given therefor and land is not recover on either count of the declara- again sold for a smaller sum, in view of Thomp. tion.

Shan. Code, $$ 5915–5917, 6301-6303, as to This argument is based upon a sound rule power of courts having jurisdiction to sell land of law to the effect that if personal injuries 2. JUDICIAL SALES Om 16 - SALE ON TIME

to vest and divest title, etc. may, on the proof adduced, be due either to

LIABILITY OF COMMISSIONER. a negligent or to a nonnegligent cause, a de- Where a master sells land of a debtor at infendant may not be held to respond in the stance of creditors on time, it is his duty to acabsence of any proof referring the injury to and for any failure in this regard he is personal

cept only good and solvent sureties on the notes, his negligence as the producing cause. Rail- ly liable to the creditors. road v. Lindamood, 111 Tenn. 457, 474, 78 S. 3. JUDICIAL SALES O 16 - SALE ON TIME W. 99, and cases in accord.

LOSS FROM INSOLVENCY. [4] We find in the testimony of witness

Where master, pursuant to decree of chanAnderson these facts which relate to the cru- of a debtor on time and accepts solvent sureties

cery and at the instance of creditors, sells land cial question of fact :

on notes given therefor, loss occurring from subThe attention of this witness was attract- sequent insolvency of sureties is that of the ed by the screams of a woman; at the time creditors, and not of master or debtor. the train had stopped; Mrs. Akin was near 4. EQUITY 446-BILL OF REVIEW-MAT

TERS REVIEWABLE-ERRONEOUS DECISION. the car door. At the request of the conduc

Error of court in disallowing debtor a credit tor he rushed into the car to aid the con- for proceeds of first sale of land on time at inductor in carrying her down the car steps stance of creditors, and crediting him only with to the ground. When Mrs. Akin was reach- the proceeds of a subsequent sale for a less sum ed "she was kind of holding up against the against by a bill of review.

after default of purchaser, can be relieved side of the car door." We think that the jury was warranted in

Certiorari to Court of Civil Appeals. inferring that the fall and the scream were,

Bill by F. M. Searight and another against practically speaking, coincident, and that the White Sewing Machine Company and both occurred about the time the train stop

others. Decree of chancellor sustaining deped the second time. It is further shown murrer and dismissing bill was reversed, and that the conductor and the flagman (the cause remanded on appeal to the Court of latter with his step box) had stepped from Civil Appeals, and defendant named brings the car to the ground when the first stop certiorari. Decree of Court of Civil Appeals was made. It is not likely that, had the affirmed, and cause remanded. fall and scream occurred at the first stop, John H. Lechleiter, of La Follette, and H. they would have so left the train, but it is H. Barr, of Nashville, for appellant. Knight more probable that one of them would have & Beasley, of Nashville, for defendant appelrushed to the aid of the woman.

lee. Mrs. Akin was 73 years old, fleshy, clumsy, and somewhat decrepit, and the above infer- NEIL, C. J. The question to be deterence by the jury was in accord with the the mined in this case arises on a bill of review.

We shall summarize its allegations so far as , brought to this court on the writ of certinecessary to present the matter for decision. orari.

It appears from the bill that the complain-[1-3] The question presented is whether the ants F. M. Searight and W. G. Harris pur- original judgment should have been credited chased certain real estate in Obion county with the proceeds of the sale made to Hubfrom one Waynick, at the price of about bard, or only with the proceeds of the sale $20,000. They paid $7,500 in cash. The rest subsequently made to enforce the lien of Hubof the consideration was covered by sundry bard's seven months' note that he executed lien debts. The last of these in the order of when he bought the land at the master's priority was that of the defendant White sale. Sewing Machine Company. The amount due The controlling principle we understand to this company not having been paid, it filed be this: When a debtor's real estate has its original bill to subject the land to the been seized by the law, through the action payment of all the liens. Such proceedings of its courts, at the instance of his creditors, were had as that a decree was entered di- and finally sold in such way as to deprive him recting a sale of the land, and at this sale one of the title and all beneficial interest therein, B. P. Hubbard became the purchaser, at the he is entitled to a credit on the debts emprice of $11,890. The sale was made on sev- braced in the action, to the full extent of the en months' time, without redemption, pursu- sum realized at the sale, less taxes and costs ant to the decree. Hubbard executed his of suit. On a cash sale nobody could doubt note for $11,890, the amount he bid on the the soundness of this proposition. Nor can land, and gave as his surety one E. P. Boyd. its application be diverted by the fact that The master, in making the sale, retained a the sale, at the creditor's instance, was made lien on the land as required by the decree on time. It would be unjust, under such cirunder which the sale was made. When this cumstances, to force on the debtor the risk note matured it was not paid. Thereupon, of the credit extended to the purchaser. To on the 4th of April, 1917, a decree was en- say nothing of the estoppel against the credtered directing that the land should be again itor arising out of his own act of asking sold for the collection of Hubbard's note and a sale on time and without redemption, the interest, amounting, at that time, to $12,- debtor is deprived of his property just as 323.97. The decree further directed that surely in the one case as in the other, that when the purchase money from this latter is, whether the sale be made for cash or on sale should come in it should be paid out, credit. When a sale of land is made through along with certain other funds not neces

a court of chancery, and is confirmed, and sary to specifically mention, to the creditors, title divested out of the debtor and vested according to their respective priorities, and in the purchaser, whether by decree of divesthat for any balance execution should issue titure and vestiture, or by deed made by against Harris and Searight. At this latter the master or commissioner under and pursale the land brought only $10,000.

suant to the order of the court, the land is The effect of the order just mentioned was just as surely lost to the debtor as if he had to deprive Harris and Searight of a credit made the deed himself, in person. From the for the difference between the amount which moment of such passing of title the land bethe land brought at the first sale and that comes the property of the purchaser; he is which it brought at the second sale; this entitled to the rents thenceforward, and undifference being $1,890.

less placed in possession by the court makAn execution was issued against Harris ing the sale he is entitled to bring ejectand Searight on a basis of allowing them ment, at once, against the former owner, credit only for the proceeds of the sale made and put him out of possession. On a cash to enforce the lien against Hubbard, and this sale nobody doubts that the money would was enjoined by a writ issued under the take the place of the land, and stand for dispresent bill.

tribution among the creditors, the surplus, if It is insisted by the complainants Harris any, going to the debtor or former owner and Searight that they were entitled to a of the land. The promissory notes realized credit for the amount which the first sale on a credit sale must occupy the same relabrought, less the taxes and costs, and the tion to the parties and to the court. They decree of the chancellor refusing this basis take the place of the land. It cannot be and directing the money to be paid out on otherwise. The general custom in this state the other basis is the matter complained of on such credit sales is to provide, in the deas error apparent on the face of the decree. cree, that the master, or commissioner, shall

There was a demurrer filed to the bill on take notes with personal surety, or sureties, the ground that it did not show any error, and retain a lien on the land for the purchase and if there was error it was such as could money. That course was taken with the not be corrected by a bill of review. The sale under consideration here. In executing chancellor sustained the demurrer and dis- such a decree it is the duty of the master or missed the bill. On appeal to the Court of commissioner to accept only good and solvCivil Appeals this decree was reversed and ent sureties on the notes. When he makes the cause remanded. The case was then | his report to the court it is presumed that the sureties are of this character unless an / ment of the purchase money a reasonable exception be filed raising the question of time has elapsed during which the master solvency. On confirmation of the report the has failed to make the deed as directed. decree divests and vests title, and retains a Camp v. Riddle, 128 Tenn. 294, 301-303, 160 lien on the land for the notes. If the notes S. W. 844, Ann. Cas. 1915C, 145. And see are not paid at maturity, a judgment by mo- Griffith v. Philips, 9 Lea (77 Tenn.) 420, tion is rendered on them against the pur- 421. Such decree divesting and vesting chaser and his sureties, and a decree enter-title is, in all respects, equivalent to a deed ed ordering the land to be sold for cash and executed by the owner of the property to the without redemption to pay the judgment. purchaser at the court sale. Shannon's Code If the land fail to bring enough to pay the (Thompson's Edition) $85915, 5916, 6301, judgment, execution is awarded for the bal- 6302, 6303; Wilkins v. McCorkle, 112 Tenn. ance. If the balance so due cannot be col- 688, 705, 80 S. W. 834; Iron & Coal Co. v. lected by reason of the insolvency of the de- Schwoon, 124 Tenn. 176, 204, 135 S. W. 785; fendants in the judgment, the loss is that Bleidorn v. Pilot Mountain C. & M. Co., 89 of the parties interested in the fund; that is, Tenn. 166, 196, 15 S. W. 737. And see Gibin the present case, the loss of the creditors. son's Suits in Ch. (2d Ed.) 88 649, 1164. If the master was in default in taking insuf- But of course such a deed or decree, made ficient sureties the creditors must look to under a sale in invitum, would not import him to make good the loss so sustained. If any covenants on the part of the former the insolvency occurred after the execution owner, but the purchaser will always, on of the notes, leaving the master exonerated application, be granted ample time before of blame, still the loss would be that of the confirmation to investigate the title. 16 R. creditors.

C. L. p. 122, § 87. The usual covenants are The rule is a very familar one in cases implied in such court transfer of title only where an execution is levied on personal when the sale is made on voluntary appliproperty of the debtor—too familar to jus- cation of the owner or owners. Shan. Code tify the citation of authority. In such (Thompson's Edition) § 5917; 16 R. C. L. pp. cases, even the levy itself, without sale of 138–141, $$ 101 and 102. the property, is sufficient to secure the debt- It seems clear from what has been said or a credit for the value of the goods levied that the decree disallowing the credit on, if not returned to him. The levy vests claimed by complainants out of the sum realthe title in the sheriff, or other levying offi-ized on the first sale, and the decree sustaincer, and the debtor, being so deprived, is ing the demurrer to the bill of review, were entitled to his credit, even though the prop- both erroneous. erty should thereafter perish without fault [4] We are of the opinion that the error of either the officer or the plaintiff in the complained of is one which not only violates execution. A fortiori where the goods are the settled practice of the court of chancery, sold, whether for cash or on time. Such but also rules of law necessarily embraced sales are regularly made for cash, but it within the sections of the Code and the de. is competent for the levying officer to sell cisions cited. It is far from being a merely on time with the consent of the execution formal or trivial matter, but is such as can plaintiff ; the latter taking the risk of the be relieved against by a bill of review. property bringing its value. On such a sale

The result is that the decree of the Court having been effected, and the note proving in- of Civil Appeals reversing the chancellor solvent, it would hardly be contended that must be affirmed, and the cause remanded the execution debtor could be saddled with for issue and further proceedings. any part of the loss.

The defendant will pay the costs of the Land subject to the payment of debts by appeal. proceedings in chancery differs from personal property subjected by execution, in re

(140 Tenn. 59) spect of the question we are discussing, only WURZBURG v. NEW YORK LIFE INS. CO.

et al. as to the stage at which the debtor loses the title to his property. In the case of an (Supreme Court of Tennessee. May 11, 1918.) execution levy on personalty, he loses title 1. INSURANCE 116(1)-INSURABLE INTERwhen the levy is made. In the case of realty

EST—INTEREST OF CORPORATION IN LIFE OF

ITS MANAGER. subjected in chancery, he loses title only

A manufacturing company has an insurable when a sale has been effected, report thereof interest in the life of its manager, who is its made to the court, confirmation of the re- guiding spirit and is largely carrying on its port had, and Uivestiture of the debtor's title

business. and vestiture in the purchaser accomplished, 12. INSURANCE Eww123–INSURABLE INTEREST

,

EXTINGUISHMENT OF INTEREST. whether by decree or by deed made under Where a manufacturing company took out the order of the court, or, when without a valid policy on the life of its general mandeed or decree divesting and vesting title, ager, who later severed his connection with after confirmation of the report of sale and his death, it' was entitled to the whole of the

the company, and it paid all premiums until order on the master to make a deed on pay-insurance.

Appeal from Chancery Court, Shelby Coun- , to be reimbursed out of the proceeds its acty; F. H. Heiskell, Chancellor.

tual outlay for premiums. Suit by H. Wurzburg, as administrator of The chancellor rendered a decree in favor the estate of Seymour Wurzburg, deceased, of the manufacturing company for the enagainst the New York Life Insurance Com- tire amount of the policy, and from this depany and the Specialty Manufacturing Com- cree the administrator has appealed. We pany to recover the proceeds of an insur- think the chancellor was correct. ance policy on deceased's life. The defend- [1] At the time this policy was issued the ant insurance company paid the proceeds in- manufacturing company undoubtedly had an to court, and from a decree awarding them insurable interest in the life of Wurzburg. to the manufacturing company the plaintiff He was, as. appears from the administrator's appeals. Decree affirmed.

bill, familiar with the business in which the R. E. King, of Memphis, for appellant. company was engaged, managed the same, Harsh & Harsh, of Memphis, for appellees.

and was “its guiding spirit,” in the language

of the bill. GREEN, J. This case presents a contro

In Lane v. Lane, 99 Tenn. 639, 42 S. W. versy between the administrator of Seymour 1058, this court adopted from the Supreme Wurzburg, deceased, and the Specialty Man- Court of the United States the following: ufacturing Company, a corporation organiz

"It is not easy to define with precision what ed under the laws of Tennessee, over the pro- est so as to take the contract out of the class

will in all cases constitute an insurable interceeds of a policy of insurance issued on the of wager policies. It may be stated generally, life of Wurzburg.

however, to be such an interest, arising from The insurance company was made a de the relation of the party obtaining the insur

ance, either as creditor or surety of the assured, fendant to the suit, and has paid into court or from the ties of blood or marriage to him, the amount due on the policy.

as will justify a reasonable expectation of adIt appears from the bill of the administra- vantage or benefit from the continuance of his

life. * * * But in all cases there must be a tor that the deceased, Seymour Wurzburg, reasonable ground, founded upon the relation was the general manager of the Specialty of the parties to each other, either pecuniary Manufacturing Company, “and in truth and or of blood or affinity, to expect some benefit in fact largely carried on the business and or advantage from the continuance of the life managed the same and was its guiding spir- by which the party taking the policy is direct

insured, otherwise the contract is a mere wager, it, and while he was connected with the busi- ly interested in the early death of assured.” ness, the defendant the New York Life In- Warnock, Adm'r, v. Davis, 104 U. S. 775, 26

. surance Company issued a policy of insur- L. Ed. 924. ance upon his life in the sum of $10,000, pay- The Supreme Court of Ohio has held in a able to the defendant the Specialty Manu- case quite similar to the one before us that facturing Company, and this policy was se-a corporation has an insurable interest in cured for the benefit of the said Specialty the life of a large stockholder whose serManufacturing Company while said Seymour vices were of value to the corporation by Wurzburg was connected with it and carry- reason of his skill and experience in the ing on and managing its business."

business. Keckley V. Coshocton Glass Co., The policy was issued February 5, 1913, 86 Ohio St. 213, 99 N. E. 299, Ann. Cas. and the manufacturing company paid the 1913D, 607. premiums thereon up to the death of Wurz- The Supreme Court of Virginia has reached burg which occurred in October, 1917.

the same conclusion in a case where the corIt is charged in the bill that, after others poration effected insurance on the life of its interested in the corporation became ac-president, whose death would have resulted quainted with the details of the business, in a serious and substantial loss to the credthey reduced the salary of Wurzburg and itors of the corporation and all others interthereby forced him to sever his connection ested in its prosperity. Mutual L. Ins. Co. v. with the manufacturing company, which he Board Armstrong & Co., 115 Va. 836, 80 S. did in October, 1915. It is not intimated E. 565, L. R. A. 1915F, 979. that such an event was contemplated when We think both these cases are sound. A the policy was issued.

corporation is often quite dependent upon The deceased left a wife and several child the services of particular officers for its dren, and his administrator seeks to recover prosperity. Under such circumstances a corthe proceeds of this policy for them, except poration has an insurable interest in the life such a sum as would be necessary to reim- of such an officer as the term "insurable inburse the manufacturing company for the terest” is defined in Warnock v. Davis, suamount of premiums paid by it on the policy pra, and Lane v. Lane, supra. and interest upon such payments. It is said

.

[2] Since this contract was valid when that after Wurzburg severed his connection made, it did not become subsequently invalwith the manufacturing company, the said ià when Wurzburg's connection with the company had no further insurable interest manufacturing company ceased. in his life and that, as to the company, the This question has been settled in principle policy of insurance became a mere wagering in this jurisdiction by Marquet v. Insurance contract and the company was only entitled Co., 128 Tenn. 213, 159 S. W. 733, L. R. A.

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