Harrison v. Wisdom

• Decision Date: 06 January 1872
• Citation: 54 Tenn. 99
• Parties: A. B. HARRISON v. B. H. WISDOM et al.
• Court: Tennessee Supreme Court

54 Tenn. 99

A. B. HARRISON

v.B. H. WISDOM et al.

Supreme Court of Tennessee.

Jan. 6, 1872.

FROM MONTGOMERY.

From the Circuit Court, September Term, 1868. J. O. SHACKELFORD, J.JOHN F. HOUSE for plaintiff.

JAMES E. BAILEY for defendant.

SNEED, J., delivered the opinion of the Court.

The defendants were, on the 17th of February, 1862, citizens of the city of Clarksville, and were present and participated in the proceedings of a public meeting of the citizens of said city, convened at the Mayor's office on that day. The meeting was called to concert measures for the protection of the people of said city in anticipation of an immediate invasion by the Federal forces, to whom Fort Donelson, which seems to have been regarded as the military key to Clarksville, had surrendered on the day preceding. The city of Clarksville was about thirty miles distant from Fort Donelson, and the occupation of the city was expected as the immediate result of the capitulation of the fort. There was at the time in the hands of merchants and dealers in the city a large quantity of whiskey and other spirituous liquors, which it was supposed would imperil the lives and property of the inhabitants if it should fall into the hands of the Federal soldiery, then flushed with victory and inflamed with the evil passions of civil war. It was therefore resolved by the citizens, convened as aforesaid, to destroy said spirituous liquors, as a measure of safety, and to recommend to the common council of said city, and to the county authorities, to levy a special tax upon the people in order to raise a fund for the reimbursement of those whose property should be thus destroyed. To this end agents were appointed to advise the owners of the resolution aforesaid, to invoke their acquiescence, and to carry out the objects of the meeting. The plaintiff was the owner of a considerable quantity of whiskey, brandy, and wine stored in said city, and he was called upon by one of the agents, who advised him of the action of the meeting, and he thereupon delivered his key to his salesman, with instructions to deliver the liquors to the agent, by whom it was destroyed.

This action was brought by the plaintiff on the 9th of March, 1866, to recover of defendants, who were among the citizens composing said meeting, the value of the liquors so destroyed. The cause was submitted to a jury on the general issue and the defendants' special plea of public necessity, and resulted in a verdict and judgment for the defendants, from which the plaintiff has appealed in error.

The record does not inform us whether the common council and the county authorities took any action to repair the mischief, or whether the interposition of either was ever invoked according to promise.

It appears from the proof that the meeting at the Mayor's office was very generally attended by the citizens. The agent who destroyed the plaintiff's liquor states that the office was crowded and that a large number of citizens were standing in front of it unable to gain admittance. The plaintiff asked the witness for what purpose the meeting had been assembled, and he explained to plaintiff the object thereof. At a later hour in the day he met the plaintiff and advised him of the resolution adopted by the meeting, and that he, the witness, had been appointed one of the agents for the destruction of the liquors. That he was directed to call upon the owners and ask their consent to the measure, and that the mayor and aldermen, and the county court, would be called upon to “remunerate the owners,” and that with a view to such ultimate payment he was instructed to take an accurate account of all the liquors destroyed. The plaintiff thereupon gave the key of his house to one Hibbs, who accompanied witness to the store, where the liquors were poured out, after taking an account of the quality and quantity thereof. The defendants, McKenzie, Williams, and Wisdom, were also appointed by the meeting as agents for the destruction of liquors, and to advise the owners of the action of the meeting. The plaintiff asked the witness what took place at other houses where and while the liquors of other citizens were being destroyed. To this course of examination the defendants objected, and the testimony was ruled inadmissible. The witness did not tell the plaintiff that the meeting had directed its agents to use force in the destruction of the liquors, but that he, with others, had been appointed to wait upon the owners and request them to permit it to be done, and to assure the owners that they would be paid for the loss of their property. The testimony shows also that there was at the time great excitement in the community and much apprehension that the Federal troops upon their expected arrival from the fort would seize the liquors, and becoming intoxicated commit depredations upon the inhabitants and their property, and it is shown from the plaintiff's testimony that no one was forbidden to remove his liquors to some place of security outside of the town. The plaintiff proposed to prove by his clerk Hibbs what was said to him by the agent at the time the liquors were being poured out, as to the action and orders of the meeting. This testimony was objected to by the defendants, and was excluded by the court. It was fully shown by other witnesses that the plan agreed upon by the citizens was, that the corporate authorities were to be requested to destroy the liquors, and the citizens agreed to suffer the imposition of a special tax to refund the value thereof to the owners. There is testimony to the effect that some of the defendants who were acting as agents in the destruction of the property had said to some of the owners in the presence of the witness Duff that the liquors would be destroyed whether the owners were willing or not, and that threats were resorted to in accomplishing that purpose, but this is denied by the witness Duff. It is also shown by one witness that an attempt of one of the owners to remove his liquor from the town was prevented by the order of some of the defendants, who directed the witness Leonard to seize and destroy the liquor so attempted to be removed. But the witness Leonard who is interrogated touching this transaction, states that he has no recollection of any such orders or any such action. It does affirmatively appear, however, from the testimony of the witness Duff, that he advised some one of the parties to remove his liquors to some place of security outside of the town.

The plaintiff introduced George Alwell as a witness, who being examined on the voir dire stated that he had brought his action against defendants to recover the value of his own liquors destroyed on the same day, and that his action, was still pending and undetermined. That several other similar suits were now pending, and that all the plaintiffs in said action, the plaintiff in this action, and himself among them, had agreed upon a fee in gross to be paid the attorneys for their services in prosecuting these several suits, each to pay his proportionate part of the fee, a part of which had already been paid. That he intended to continue the prosecution of his own suit whether the plaintiff succeeded or not, and that the result of the present action might have some bearing upon the fate of his own. The defendants thereupon objected to the witness as incompetent, upon the ground that he was interested in the result, and insisted for reasons of public policy he should be excluded. The court ruled that the witness was incompetent. It is proper to observe that the trial of this action was on 30th of September, 1868, and prior to the act of December, 1868, which makes operative a prior act removing the disqualification of interest in the subject matter of the suit. Vide acts 1868, ch. 75, and 1868, ch. 7, Shank. Supp., 264. It seems that during the progress of the trial it came to the knowledge of the plaintiff that the Judge presiding attended the meeting of the citizens of Clarksville, out of whose action this litigation has grown. The incompetency of his Honor was thereupon suggested by the plaintiff's counsel. The Judge responded that he believed he was present at the meeting, but he took no part in its proceedings, and thereupon ruled himself competent, and overruled the exception.

After the general charge of the court to the jury had been delivered, the plaintiff asked the court to charge as follows: that to authorize the destruction of property on the ground of public necessity, the danger must be so imminent and immediate, and the public safety so directly imperiled, that it is an absolute and unconditional necessity to destroy the property, and that this fact must be proved by the defendants, and must not have its origin in vague fears and unsustained apprehension. The court, in response, instructed the jury as follows: “If it appears the destruction of the whiskey was done under the belief that it was necessary to the safety of the public, that is a question resting with you from the proof. Whether that the danger was imminent and impending, or that the citizens had reasonable grounds to believe that the destruction of the property was necessary for the public safety, to ascertain that you will look to the proof. In arriving at your conclusion on this point you will look to the state and condition of the country, the fall of Fort Donelson, the advance of the hostile forces, the nature of the property destroyed, its effects upon men, and the consequences that might result from permitting it to fall into the hands of hostile forces. All these facts you may look to, and if you are satisfied that the danger was imminent and impending, and the destruction of the property a public necessity for the safety of the public, then the defendants were justified in its destruction. But you must be satisfied from the proof that the danger was pending and imminent to authorize the destruction. It must not...