Wills v. Franklin

• Decision Date: 20 November 1953
• Docket Number: Civ. No. 1895,1896.
• Citation: 131 F. Supp. 668
• Parties: Eva Hornsby WILLS v. Burton FRANKLIN, Administrator of Estate of David L. Davis, deceased. Peggy Wills DAVIS v. Burton FRANKLIN, Administrator of Estate of David L. Davis, deceased.
• Court: U.S. District Court — Eastern District of Tennessee

131 F. Supp. 668

Eva Hornsby WILLS v. Burton FRANKLIN, Administrator of Estate of David L. Davis, deceased.

Peggy Wills DAVIS v. Burton FRANKLIN, Administrator of Estate of David L. Davis, deceased.

Civ. Nos. 1895, 1896.

United States District Court E. D. Tennessee, S. D.

November 20, 1953.

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Gleason & Painter, Rossville, Ga., Frazier, Roberts & Weill, Chattanooga, Tenn., for plaintiffs.

Noone, Tanner & Noone, Chattanooga, Tenn., for defendant.

DARR, Chief Judge.

The defendant has moved for a new trial in each of these cases. There are assignments that the verdicts are not supported by any evidence; that they are excessive, contrary to the law and the evidence; that any negligence of which the decedent David L. Davis might have been guilty was not the proximate cause of the injuries; that the plaintiffs were guilty of contributory negligence.

These matters were all submitted to the jury under a charge to which there was no exception, and the jury has found the issues in favor of the plaintiffs. The Court has given careful consideration to the evidence and is of the opinion that it amply justifies the verdicts.

The defendant's 7th, 8th and 9th grounds of error relate to the refusal of the Court to permit a special defense to be filed, setting up that there was pending in the Circuit Court of Hamilton County, Tennessee, on appeal, an attack on the appointment of the defendant as administrator; and that if there was an adverse decision in said circuit court, there would be a further appeal to the appellate courts at Knoxville. Said special defense also included a charge that the plaintiff and defendant were guilty of collusion; and that the trial of the case should be postponed or deferred until the final decision as to the validity of defendant's appointment was determined. It is alleged that it was error for the Court to try the case before it was determined whether the defendant is the administrator of the estate of David L. Davis, deceased.

These grounds of the motion are without merit. They amount to a collateral attack on the judgment of the court appointing the administrator, and collateral attacks are not permitted. Eller v. Richardson, 89 Tenn. 575, 15 S.W. 650; Bellenfant v. American National Bank, 184 Tenn. 50, 54, 195 S.W.2d 30.

The judgment of the county court appointing an administrator is binding on all the world until reversed on direct attack or appeal or writ of error. Bellenfant v. American National Bank, supra.

The grant of letters, though erroneously given, remains good and valid until the decree of the court is judicially reversed, either on appeal or petition, and cannot be collaterally inquired into. State v. Anderson, 84 Tenn. 321.

Writs of error lie from the judgments of the county court to the circuit or proper appellate court in all cases where an appeal in the nature of a writ of error could have lain. Williams Tenn. Code, section 9063.

The writ of error does not supercede the execution of judgment unless a judge of the appellate court is of opinion that there is error, and shall order a supersedeas to issue. Williams Tennessee Code, section 9065.

The proposed amendment to the answer raising this question was not offered until the day the case was set for trial on June 23, 1953, while the letters of administration were issued to the defendant on April 30, 1953. The proposed amendment does not show the grounds upon which the letters of administration are being challenged in the state courts; nor does counsel for defendant say whether in his opinion the grounds have merit. No proper basis is laid for postponing the trial here to await a procedure so tenuous and speculative.

As to the case of Peggy Wills Davis, the defendant says the Court erred in finding and holding that it was not against the public policy of the State of Tennessee and that the case could be maintained as brought.

The plaintiff is the widow of David L. Davis, and the suit against his administrator is therefore, in effect, a suit in tort by her against her husband, which is not permitted in Tennessee.

This defense was made in the answer, and on motion of the plaintiff, was stricken pursuant to this Court's memo of June 22, 1953.

The suit is predicated upon a statute of North Carolina in which state the accident occurred, and it is conceded that the North Carolina law permits a suit in tort by one spouse against the other.

It is conceded that this statute would permit the present suit to be brought in North Carolina; and that an action brought in Tennessee therefor would be controlled by the North Carolina law.

It is well settled in Tennessee that the law of the place where the tort is committed determines the rights of the parties affected thereby. Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698; Hartman v. Duke, 160 Tenn. 134, 22 S.W.2d 221; Whitlow v. Nashville, C. & St. L. Ry. Co., 114 Tenn. 344, 84 S.W. 618, 68 L.R.A. 503.

The defendant says, however, that in Tennessee a wife may not maintain an action against her husband for injuries to her person during coverture; and that such being the law of Tennessee the present action may not be maintained in a Tennessee court to enforce rights under the laws of North Carolina because that would be against the public policy of Tennessee. In other words, the defendant insists that the rights of parties existing under the laws of other states may not be enforced in Tennessee if contrary to the public policy of the laws of Tennessee.

What then are the rights which are contrary to the public policy of the laws of Tennessee? Is the mere fact of nonconformance with the laws of other states determinative? If that be true, then there is no basis for the rule of lex loci. If the lex loci differs from the lex fori, it would be idle to say that in tort actions the lex loci would control except when it differed from the lex fori — in other words, the lex loci would control if consistent with the lex fori. This would seem to be one of the legal absurdities which need not be indulged.

The Supreme Court of the United States quoted with approval, in Northern Pacific Railroad v. Babcock, 154 U.S. 190, 197, 198, 14 S.Ct. 978, 980, 38 L.Ed. 958, the following: "`The statute of another state has, of course, no extra-territorial force, but rights acquired under it will always, in comity, be enforced, if not against the public policy of the laws of the former. * * * But it by no means follows that, because the statute of one state differs from the law of another state, therefore it would be held contrary to the policy of the laws of the latter state. Every day our courts are enforcing rights under foreign contracts where the lex loci contractus and the lex fori are altogether different, and yet we construe these contracts and enforce rights under them according to their force and effect under the laws of the state where made. To justify a court in refusing to enforce a right of action which accrued under the law of another state, because against the policy of our laws, it must appear that it is against good morals or natural justice, or that, for some other such reason, the enforcement of it would be prejudicial to the general interests of our own citizens. If the state of Iowa sees fit to impose this obligation upon those operating railroads within her bounds, and to make it a condition of the employment of those who enter their service, we see nothing in such a law repugnant either to good morals or natural justice, or prejudicial to the interests of our own citizens.'"

It may therefore safely be said that the public policy of the laws of Tennessee are not established and determined by the fact that its court decisions differ from the laws of North Carolina.

In Home Beneficial Ass'n v. White, 180 Tenn. 585, 177 S.W.2d 545, the Tennessee "Public Policy" is defined as follows: "The state's `public policy' is to be found in its Constitution, laws, judicial decisions, and applicable rules of common law; `public policy' being practically synonymous with `public good'."

The public policy of Tennessee may thus be found in the Constitution and laws of Tennessee as well as in its court decisions. And the state court itself has said it was practically synonymous with "public good". This is strikingly similar to the language of the U. S....