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 Civil Appeals affirming the decree of the learned chancellor dismissing the bill must be reversed, and a decree entered here adjudging the fact of such payment, and perpetually enjoining the defendant from prosecuting any action thereon. and when she arose from her seat for the purpose of alighting and was proceeding down the aisle of the car, and when she was a short distance from the steps leading from the coach to the ground, the agents in charge of the movements of the train, without warning 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. (140 Tenn. 34) NASHVILLE, C. & ST. L. RY. v. AKIN. (Supreme Court of Tennessee. April 16, 1918.) 1. CARRIERS 316(3)-INJURIES TO PASSENGERS-SUDDEN JERKS. A railway is not liable under the res ipsa GERS-STARTING TRAIN WHILE PASSENGER Where a train has stopped for a passenger to alight, and while she was walking down aisle of car the train without warning suddenly started, the railway is liable for injury caused by the jerk, without proof by plaintiff that start was unnecessarily violent. 3. CARRIERS 316(3)-INJURY TO PASSENGER-SUFFICIENCY OF EVIDENCE. Where in an action for death of a passenger about to alight plaintiff does not show whether the injury was due to jerk of train in stopping for which railroad would not be liable, or to sudden start without warning, for which it would be liable, plaintiff can not recover. 4. CARRIERS 318(10)-ACTION FOR INJURY TO PASSENGER-SUFFICIENCY OF EVIDENCE. In an action against railway for death to passenger while alighting from train, evidence held sufficient to show that the injury was due to sudden starting of train without warning and not to the jerk of train in stopping for the passenger to alight. Certiorari to Court of Civil Appeals. Action by John T. Akin, as administrator of Mrs. Judith Ann Akin, against the Nashville, Chattanooga & St. Louis Railway. Judgment for plaintiff, and defendant brings certiorari. Affirmed. thrown to the floor of the car, suffering an injury, a broken hip, from which after much suffering she died. A second count set forth that before the train came to a stop intestate, after an invitation to alight, while walking down the aisle of the car was thrown to the floor by a jerk or lurch of unnecessary and unusual violence, etc. That Mrs. Akin was thrown to the floor of the car in which she was a passenger at the station of destination, and suffered fatal injuries, was proved; but a close question of fact is presented on the record as to whether the fall was caused by a sudden starting forward of the train after it had come to a stop, as averred in the first count, or by the movement of the train incident to its coming to the first stop at Kingston Springs. It appears that after that stop the train pulled up, in a short time, to a tank to take water, where it made a second stop, the distance of the movement of the train to the tank being five to ten feet. The fate of plaintiff's case depends upon the close and narrow question of fact just stated. It affirmatively appears from the evidence offered by the plaintiff that there was no unusual movement of the train as it approached the station and came to the first stop. No extraordinary jerk or lurch is shown. [1] There could be no recovery in the event that intestate fell before or at the time of the first stop, without such showing of an unusually violent or negligent jerk or lurch of the train. The principle of res ipsa loquitur does not apply, in that aspect, since it does not appear that there was any force or vio Pardue & Morable, of Ashland City, Sav-lence that was not usual and incident to the age & Fort, of Clarksville, and Claude Waller, of Nashville, for plaintiff in error. Faw & Crockett, of Franklin, and Duke & Fetts, of Ashland City, for defendant in error. WILLIAMS, J. This suit was instituted by John T. Akin, as administrator of Mrs. Judith Ann Akin, for the alleged wrongful death of his intestate by reason of injuries inflicted on her while a passenger on a train of the railway company. It was averred in the first count of the declaration, in substance, that Mrs. Akin boarded one of the company's trains at Bellevue for the purpose of going to Kingston Springs, and that when the train reached the latter station the cars stopped where passengers were usually taken on and discharged. Thereupon she was in ordinary or efficient operation of the train. An inference of negligence, on this phase of the case, arises only when the jerk or lurch is shown to be extraordinary so as to be attributable to unskillful handling of the train or other fault of the carrier. Jerks, jolts. and lurches, according to common knowledge, occur in the ordinary nonnegligent operation and stopping of a train of a commercial railway. [2] But an inference of negligence on the part of a carrier, which is involved in the doctrine of res ipsa loquitur, obtains upon proof of injury to a passenger caused by the sudden starting of the train without warning after it had come to a stop at the station, and while the passenger was alighting at what he was induced to believe was the reg For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ular or final stop for disembarkation, since [ory 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 unusually violent jerk or movement. The result of the best decisions is thus as to when deceased fell. The railway comtersely stated in 4 R. C. L. p. 1245: "In the case of persons in the act of boarding or leaving its (the carrier's) vehicle, any movement of such vehicle before the passenger has had a reasonable opportunity to reach a place of safety therein or to alight therefrom is negligence rendering the carrier liable to one injured thereby, whether such movement be unusual or unnecessary or not. The negligence consists in the mere act of moving the vehicle under such circumstances." See, also, 10 C. J. p. 1031, and Railroad v. Mitchell, 98 Tenn. 30, 40 S. W. 72. Any necessary movement in such circum We are of opinion that the circumstances above narrated amounted to some evidence pany declined to introduce any witnesses. The trial judge refused to direct a verdict upon the railway company's motion, and the Court of Civil Appeals affirmed the ruling. That refusal being the only error assigned in this court in support of the petition for certiorari, we direct an affirmance. (140 Tenn. 50) SEARIGHT et al. v. WHITE SEWING MACH. CO. stances carries an inference of negligence if (Supreme Court of Tennessee. April 27, 1918.) the passenger is not warned. [3] The railway company insists, however, that there is no evidence showing that the deceased's fall was caused during, and as a result of, the second movement, rather than before or at the time of the first stop, and it is urged that in this attitude plaintiff cannot recover on either count of the declaration. This argument is based upon a sound rule of law to the effect that if personal injuries may, on the proof adduced, be due either to a negligent or to a nonnegligent cause, a defendant may not be held to respond in the absence of any proof referring the injury to his negligence as the producing cause. Railroad v. Lindamood, 111 Tenn. 457, 474, 78 S. W. 99, and cases in accord. [4] We find in the testimony of witness Anderson these facts which relate to the crucial question of fact; The attention of this witness was attracted by the screams of a woman; at the time the train had stopped; Mrs. Akin was near the car door. At the request of the conductor he rushed into the car to aid the conductor in carrying her down the car steps to the ground. When Mrs. Akin was reached "she was kind of holding up against the side of the car door." We think that the jury was warranted in inferring that the fall and the scream were, practically speaking, coincident, and that both occurred about the time the train stopped the second time. It is further shown that the conductor and the flagman (the latter with his step box) had stepped from the car to the ground when the first stop was made. It is not likely that, had the fall and scream occurred at the first stop, they would have so left the train, but it is more probable that one of them would have rushed to the aid of the woman. Mrs. Akin was 73 years old, fleshy, clumsy, and somewhat decrepit, and the above inference by the jury was in accord with the the 1. JUDICIAL SALES 62-DEFAULT OF PURCHASER RIGHT OF DEBTOR. Where at the instance of his creditors a debtor's land is sold through chancery on time without redemption and the sale is confirmed, the debtor is deprived of title and all beneficial interest and is entitled to be credited with the proceeds of such sale, although the purchaser defaults in note given therefor and land is again sold for a smaller sum, in view of Thomp. Shan. Code, §§ 5915-5917, 6301-6303, as to power of courts having jurisdiction to sell land to vest and divest title, etc. 2. JUDICIAL SALES 16-SALE ON TIME — LIABILITY OF COMMISSIONER. Where a master sells land of a debtor at instance of creditors on time, it is his duty to acand for any failure in this regard he is personalcept only good and solvent sureties on the notes, ly liable to the creditors. 3. JUDICIAL SALES 16-SALE ON TIMELOSS FROM INSOLVENCY. cery and at the instance of creditors, sells land Where master, pursuant to decree of chanof a debtor on time and accepts solvent sureties on notes given therefor, loss occurring from subsequent insolvency of sureties is that of the creditors, and not of master or debtor. 4. EQUITY 446-BILL OF REVIEW-MATTERS REVIEWABLE-ERRONEOUS DECISION. Error of court in disallowing debtor a credit for proceeds of first sale of land on time at instance of creditors, and crediting him only with the proceeds of a subsequent sale for a less sum after default of purchaser, can be relieved against by a bill of review. Certiorari to Court of Civil Appeals. Bill by F. M. Searight and another against the White Sewing Machine Company and others. Decree of chancellor sustaining demurrer and dismissing bill was reversed, and cause remanded on appeal to the Court of Civil Appeals, and defendant named brings certiorari. Decree of Court of Civil Appeals affirmed, and cause remanded. John H. Lechleiter, of La Follette, and H. H. Barr, of Nashville, for appellant. Knight & Beasley, of Nashville, for defendant appellee. NEIL, C. J. The question to be determined in this case arises on a bill of review. We shall summarize its allegations so far as necessary to present the matter for decision. It appears from the bill that the complainants F. M. Searight and W. G. Harris purchased certain real estate in Obion county from one Waynick, at the price of about $20,000. They paid $7,500 in cash. The rest of the consideration was covered by sundry lien debts. The last of these in the order of priority was that of the defendant White Sewing Machine Company. The amount due this company not having been paid, it filed its original bill to subject the land to the payment of all the liens. Such proceedings were had as that a decree was entered directing a sale of the land, and at this sale one B. P. Hubbard became the purchaser, at the price of $11,890. The sale was made on seven months' time, without redemption, pursuant to the decree. Hubbard executed his note for $11,890, the amount he bid on the land, and gave as his surety one E. P. Boyd. The master, in making the sale, retained a lien on the land as required by the decree under which the sale was made. When this note matured it was not paid. Thereupon, on the 4th of April, 1917, a decree was entered directing that the land should be again sold for the collection of Hubbard's note and interest, amounting, at that time, to $12,323.97. The decree further directed that when the purchase money from this latter sale should come in it should be paid out, along with certain other funds not necessary to specifically mention, to the creditors, according to their respective priorities, and that for any balance execution should issue against Harris and Searight. At this latter sale the land brought only $10,000. brought to this court on the writ of certiorari. [1-3] The question presented is whether the original judgment should have been credited with the proceeds of the sale made to Hubbard, or only with the proceeds of the sale subsequently made to enforce the lien of Hubbard's seven months' note that he executed when he bought the land at the master's sale. The controlling principle we understand to be this: When a debtor's real estate has been seized by the law, through the action of its courts, at the instance of his creditors, and finally sold in such way as to deprive him of the title and all beneficial interest therein, he is entitled to a credit on the debts embraced in the action, to the full extent of the sum realized at the sale, less taxes and costs of suit. On a cash sale nobody could doubt the soundness of this proposition. Nor can its application be diverted by the fact that the sale, at the creditor's instance, was made on time. It would be unjust, under such circumstances, to force on the debtor the risk of the credit extended to the purchaser. To say nothing of the estoppel against the creditor arising out of his own act of asking a sale on time and without redemption, the debtor is deprived of his property just as surely in the one case as in the other, that is, whether the sale be made for cash or on credit. When a sale of land is made through a court of chancery, and is confirmed, and title divested out of the debtor and vested in the purchaser, whether by decree of divestiture and vestiture, or by deed made by the master or commissioner under and pursuant to the order of the court, the land is just as surely lost to the debtor as if he had made the deed himself, in person. From the moment of such passing of title the land becomes the property of the purchaser; he is entitled to the rents thenceforward, and unless placed in possession by the court making the sale he is entitled to bring ejectment, at once, against the former owner, and put him out of possession. On a cash sale nobody doubts that the money would take the place of the land, and stand for distribution 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. remanded. The case was then | his report to the court it is presumed that The effect of the order just mentioned was to deprive Harris and Searight of a credit for the difference between the amount which the land brought at the first sale and that which it brought at the second sale; this difference being $1,890. An execution was issued against Harris and Searight on a basis of allowing them credit only for the proceeds of the sale made to enforce the lien against Hubbard, and this was enjoined by a writ issued under the present bill. 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 decree divests and vests title, and retains a lien on the land for the notes. If the notes are not paid at maturity, a judgment by motion is rendered on them against the purchaser and his sureties, and a decree entered ordering the land to be sold for cash and without redemption to pay the judgment. If the land fail to bring enough to pay the judgment, execution is awarded for the balance. If the balance so due cannot be collected by reason of the insolvency of the defendants in the judgment, the loss is that of the parties interested in the fund; that is, in the present case, the loss of the creditors. If the master was in default in taking insufficient sureties the creditors must look to him to make good the loss so sustained. If the insolvency occurred after the execution of the notes, leaving the master exonerated of blame, still the loss would be that of the creditors. The rule is a very familar one in cases where an execution is levied on personal property of the debtor-too familar to justify the citation of authority. In such cases, even the levy itself, without sale of the property, is sufficient to secure the debtor a credit for the value of the goods levied on, if not returned to him. The levy vests the title in the sheriff, or other levying officer, and the debtor, being so deprived, is entitled to his credit, even though the property should thereafter perish without fault of either the officer or the plaintiff in the execution. A fortiori where the goods are sold, whether for cash or on time. Such sales are regularly made for cash, but it is competent for the levying officer to sell on time with the consent of the execution plaintiff; the latter taking the risk of the property bringing its value. On such a sale having been effected, and the note proving insólvent, it would hardly be contended that the execution debtor could be saddled with any part of the loss. has failed to make the deed as directed. It seems clear from what has been said that the decree disallowing the credit claimed by complainants out of the sum realized on the first sale, and the decree sustaining the demurrer to the bill of review, were both erroneous. [4] We are of the opinion that the error complained of is one which not only violates the settled practice of the court of chancery, but also rules of law necessarily embraced within the sections of the Code and the decisions cited. It is far from being a merely formal or trivial matter, but is such as can be relieved against by a bill of review. The result is that the decree of the Court of Civil Appeals reversing the chancellor must be affirmed, and the cause remanded for issue and further proceedings. The defendant will pay the costs of the appeal. (140 Tenn. 59) WURZBURG v. NEW YORK LIFE INS. CO. et al. (Supreme Court of Tennessee. May 11, 1918.) 1. INSURANCE 116(1)-INSURABLE INTEREST-INTEREST OF CORPORATION IN LIFE OF ITS MANAGER. Land subject to the payment of debts by proceedings in chancery differs from personal property subjected by execution, in respect of the question we are discussing, only as to the stage at which the debtor loses the title to his property. In the case of an execution levy on personalty, he loses title when the levy is made. In the case of realty subjected in chancery, he loses title only when a sale has been effected, report thereof made to the court, confirmation of the report had, and divestiture of the debtor's title and vestiture in the purchaser accomplished, whether by decree or by deed made under the order of the court, or, when without deed or decree divesting and vesting title, after confirmation of the report of sale and order on the master to make a deed on pay- insurance. A manufacturing company has an insurable interest in the life of its manager, who is its guiding spirit and is largely carrying on its business. 2. INSURANCE 123-INSURABLE INTERESTEXTINGUISHMENT OF INTEREST. Where a manufacturing company took out a valid policy on the life of its general manager, who later severed his connection with his death, it was entitled to the whole of the the company, and it paid all premiums until Appeal from Chancery Court, Shelby Coun- to be reimbursed out of the proceeds its acty; F. H. Heiskell, Chancellor. Suit by H. Wurzburg, as administrator of the estate of Seymour Wurzburg, deceased, against the New York Life Insurance Company and the Specialty Manufacturing Company to recover the proceeds of an insurance policy on deceased's life. The defendant insurance company paid the proceeds into court, and from a decree awarding them to the manufacturing company the plaintiff appeals. Decree affirmed. R. E. King, of Memphis, for appellant. Harsh & Harsh, of Memphis, for appellees. GREEN, J. This case presents a controversy between the administrator of Seymour Wurzburg, deceased, and the Specialty Manufacturing Company, a corporation organized under the laws of Tennessee, over the proceeds of a policy of insurance issued on the life of Wurzburg. The insurance company was made a defendant to the suit, and has paid into court the amount due on the policy. It appears from the bill of the administrator that the deceased, Seymour Wurzburg, was the general manager of the Specialty Manufacturing Company, "and in truth and in fact largely carried on the business and managed the same and was its guiding spirit, and while he was connected with the business, the defendant the New York Life Insurance Company issued a policy of insurance upon his life in the sum of $10,000, payable to the defendant the Specialty Manufacturing Company, and this policy was secured for the benefit of the said Specialty Manufacturing Company while said Seymour Wurzburg was connected with it and carrying on and managing its business." The policy was issued February 5, 1913, and the manufacturing company paid the premiums thereon up to the death of Wurzburg which occurred in October, 1917. It is charged in the bill that, after others interested in the corporation became acquainted with the details of the business, they reduced the salary of Wurzburg and thereby forced him to sever his connection with the manufacturing company, which he did in October, 1915. It is not intimated that such an event was contemplated when the policy was issued. The deceased left a wife and several children, and his administrator seeks to recover the proceeds of this policy for them, except such a sum as would be necessary to reimburse the manufacturing company for the amount of premiums paid by it on the policy and interest upon such payments. It is said that after Wurzburg severed his connection with the manufacturing company, the said company had no further insurable interest in his life and that, as to the company, the policy of insurance became a mere wagering contract and the company was only entitled tual outlay for premiums. The chancellor rendered a decree in favor of the manufacturing company for the entire amount of the policy, and from this-decree the administrator has appealed. We think the chancellor was correct. [1] At the time this policy was issued the manufacturing company undoubtedly had an insurable interest in the life of Wurzburg. He was, as. appears from the administrator's bill, familiar with the business in which the company was engaged, managed the same, and was "its guiding spirit," in the language of the bill. In Lane v. Lane, 99 Tenn. 639, 42 S. W. 1058, this court adopted from the Supreme Court of the United States the following: will in all cases constitute an insurable inter"It is not easy to define with precision what est so as to take the contract out of the class of wager policies. It may be stated generally, however, to be such an interest, arising from the relation of the party obtaining the insurance, either as creditor or surety of the assured, or from the ties of blood or marriage to him, as will justify a reasonable expectation of advantage or benefit from the continuance of his life. * * * But in all cases there must be a reasonable ground, founded upon the relation of the parties to each other, either pecuniary or of blood or affinity, to expect some benefit or advantage from the continuance of the life insured, otherwise the contract is a mere wager, by which the party taking the policy is directly interested in the early death of assured." Warnock, Adm'r, v. Davis, 104 U. S. 775, 26 L. Ed. 924. The Supreme Court of Ohio has held in a case quite similar to the one before us that a corporation has an insurable interest in the life of a large stockholder whose services were of value to the corporation by reason of his skill and experience in the business. Keckley v. Coshocton Glass Co., 86 Ohio St. 213, 99 N. E. 299, Ann. Cas. 1913D, 607. The Supreme Court of Virginia has reached the same conclusion in a case where the corporation effected insurance on the life of its president, whose death would have resulted in a serious and substantial loss to the creditors of the corporation and all others interested in its prosperity. Mutual L. Ins. Co. v. Board Armstrong & Co., 115 Va. 836, 80 S. E. 565, L. R. A. 1915F, 979. We think both these cases are sound. A corporation is often quite dependent upon the services of particular officers for its prosperity. Under such circumstances a corporation has an insurable interest in the life of such an officer as the term "insurable interest" is defined in Warnock v. Davis, supra, and Lane v. Lane, supra. [2] Since this contract was valid when made, it did not become subsequently invalid when Wurzburg's connection with the manufacturing company ceased. This question has been settled in principle in this jurisdiction by Marquet v. Insurance Co., 128 Tenn. 213, 159 S. W. 733, L. R. A. |