Newman v. Tipton

• Decision Date: 09 December 1950
• Citation: 234 S.W.2d 994,191 Tenn. 461,27 Beeler 461
• Parties: , 191 Tenn. 461 NEWMAN v. TIPTON.
• Court: Tennessee Supreme Court

Page 994

234 S.W.2d 994

27 Beeler 461, 191 Tenn. 461

NEWMAN v. TIPTON.

Supreme Court of Tennessee.

Dec. 9, 1950.

Oliver & DeLozier and Crawford & Crawford, all of Maryville, for plaintiff.

Homer A. Goddard, Maryville, for defendant.

NEIL, Chief Justice.

This is an action for damages in which Miss Annie Tipton sustained severe painful injuries resulting from a fall in a storehouse owned by Mrs. B. S. Newman. The suit is based upon negligence in maintaining defective premises which was alleged to be the proximate cause of the accident. The circumstances attending the accident were briefly, but clearly, summarized in the opinion of the Court of Appeals (and supported by material evidence) as follows: 'The automobile in which plaintiff was riding was stopped in front of the Newman store. There was no light burning in front, but lights could be seen in the store. Miss Tipton, then about 44 years of age, and being lame in her right leg since infancy, which required her to wear an extension shoe, got out of the car, went to the front door of the store, opened it with her left hand and stepped in. The door swung inward, to the left, which tended to obscure the store's lights consisting of a small lantern at the left rear of the store, 15 feet from the entrance, and a small (25 watt.) light bulb, some three feet to the left of the lantern. As the door was opened it partially blocked these lights. The floor was about six inches lower than the door sill. There were no signs or warnings of the existence of this condition. By reason of the insufficient lights, obscured as they were by the opening of the door, Miss Tipton did not observe the floor being on a lower level. She fell, breaking her lame leg, resulting in great and permanent impairment in it over that previously existing.'

The declaration alleged that the building was maintained in an unsafe and dangerous condition. The specific acts of negligence complained of are (1) that maintaining different floor levels in and about the store building, (2) failing to give notice to plaintiff and the public that the floor levels changed abruptly at the entrance, (3) failing to illuminate properly the entrance to the building, and (4) in permitting and allowing said dangerous condition to exist without providing sufficient light for the plaintiff to detect such dangerous condition.

The defendant pleaded the general issue, and the issues were tried to a jury resulting in a verdict for the plaintiff. In the Court of Appeals the defendant contended under proper assignments of error (1) that there was no evidence to support the verdict, (2) the defendant was not guilty of actionable negligence, (3) plaintiff was guilty of proximate contributory negligence as a matter of law, barring a recovery, and (4) for error by the trial judge in overruling the defendant's objection to the testimony of the plaintiff, she being incompetent to testify under Code, § 9780. These assignments were overruled and the judgment of the trial court affirmed.

The defendant petitioned this Court for certiorari and assigned numerous errors. Upon full consideration of the petition the writ was granted, the following memorandum being filed with the record:

'The Court grants the writ of error for the purpose of giving consideration to the action of the Court of Appeals in holding that Annie Tipton was a competent witness in her own behalf against the estate of Mrs. B. S. Newman deceased, this being assigned as error.

'While counsel are privileged to discuss other assignments of error, we are frankly of opinion that they do not have sufficient merit to justify a reversal of the case.'

The single question as to the competency of Annie Tipton to give evidence against the defendant, Mrs. Newman, she having died prior to the trial in the circuit court, has been fully argued by able counsel for the respective parties. All other assignments of error are without merit.

It is earnestly insisted by counsel for the petitioner that the Court of Appeals was in error in holding that Code, § 9780 does not apply to tort actions. It reads as follows: 'In actions or proceedings by or against executors, administrators, or guardians, in which judgments may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party.'

The Court of Appeals correctly points out that 'Mrs. Newman died after the institution of this suit, which was then revived against her executrix. The plaintiff did not testify as to any conversation with the defendant; she only testified as to what occurred when she attempted to enter defendant's store.'

The provisions of this statute, and similar statutes in all other jurisdictions, have given rise to countless decisions as to what constitutes a 'transaction' between parties in interest and one who is deceased. We have no case dealing with the question made on this appeal. All the cases from all jurisdictions hold that the statute was primarily intended to guard against an evil which might result from testimony of the living against the dead; that death having silenced the one, the law silences the other. McDonald v. Allen, 67 Tenn. 446, Bingham v. Lavender, 70 Tenn. 48. In a foot note to the...