54 Tenn. 99 | Tenn. | 1872
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 Donel-son, 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 whisky 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
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 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
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
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 unsus-tained apprehension. The court, in response, instructed the jury as follows: “If it appears the destruction of the whisky was done under the belief that if; 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
We have thus referred to so much of the testimony and ruling of the court in the progress of the cause as is necessary to present the more important questions relied upon by the plaintiff as grounds for the reversal of the judgment, and we propose to consider each in its order as herein presented, premising that the general principles which control some of the questions will necessarily settle others of like import not herein specifically referred to.
Itt is answered in argument that the doctrine of the law of evidence, that where a common purpose to do a wrongful act is shown to exist on the part of several tort feasors, the acts and declarations of each done or spoken in the execution of the common purpose are admissable in evidence against each, has no application to this case, for the reason that the common purpose was not in itself unlawful. The theory of the defense is, that it was not unlawful to destroy the property of the plaintiff, because of the exigent public necessity which demanded its destruction.
But the motives actuating the defendant, and the public necessity for their action, could alone determine the lawfulness or unlawfulness of the act, and those
The cry of the mob in Lord George Gordon’s case is a notable illustration of this doctrine, where the purpose of the evidence was to show the character of the principal fact: 21 How. State Trials, 542. The connection of the defendants being first shown, every act and declaration, says Greenleaf, of each member of the confederacy, in pursuance of the original concocted plan, and with reference to the common object, is in contemplation of law the act and declaration of all, and is therefore original evidence against each of them. Every one who enters into a common purpose or design is generally deemed in law a party to every act which has before been done, and to every
The testimony might have been of vital importance to the plaintiff, in view of the assumption on the part of the defense that the plaintiff freely and voluntarily consented to the destruction of his property. ’ If this be true, he certainly has no right of action against these defendants: 1 Hill, on Torts, 143, 167. If it be true, as alleged, that threats of violence were used in carrying out the purpose of the defendants, such testimony would tend to explain the motive influencing the plaintiff in his alleged acquiescence in the destruction of his property.
The witness Alwell had no direct interest in the result of the plaintiff’s action, but only in the question to be adjudicated. This did not render him incompetent. The tendency of modern judicial ruling, as well as legislation, is to resolve all such questions into one of credit, and while our own legislation has now rendered the settlement of the question of but little practical importance, yet the exclusion of the witness at the time was improper. The rule is thus stated: “ The disqualifying interest of the witness must be in the event of the cause itself, and not in the question to be decided. His liability to a like action,, or his standing in the same predicament with the party, if the verdict can not be given in evidence for or against him, is an interest in the question only, and does not exclude him:” Greenl. Ev., s. 386, et seq.; Id. ss. 408, 409.
Such is an example of the prestige preserved by the judiciary of England upon this subject, where the rule is a mere maxim of national equity; and it should be even the more sacredly guarded in this country, where it is a principle of the organic law itself. We entirely concur, therefore, with the counsel for the plaintiff, that no judge should preside in a cause, or render any judgment, or make any order, where he can by possibility be suspected of being warped by the influence of fear, favor, partiality, or affection. When once a court has lost the charm, of integrity and justice, with which it should ever be invested, it forfeits its influence for good, and degrades the majesty of the law. /
The idea that the judicial office is supposed to be invested with ermine, though fabulous and mythical, is
These observations must be taken in their general sense, and not as having any special application to the facts of this case. According to the record presented by the plaintiff, we do not think there is any ground to impeach the competency or impugn the motives of ■ the judge who sat in this cause. His mere presence at a public meeting of his neighbors did not commit him in any degree to the action of the meeting, or identify him with its purposes. We
We come now to consider the last and most important question involved in this case, and that is, whether the law of the case was correctly expounded to the jury. The defendants insist that at the time of the alleged trespass upon the plaintiff’s property there existed an absolute public necessity for its destruction. The right of defense and self-preservation is a right inherent in communities as well as individuals. Whether an imminent and absolute necessity exists to destroy private property for the common good, is a question to be determined by a jury upon the facts of each particular case. An individual may take life to preserve his own, if he be in danger of death or great bodily harm, or think himself so upon reasonable grounds. But the grounds of his apprehension must be founded upon such facts as will acquit him of acting upon a mere fancied peril or with feckless incaution. The law is jealous in the protection it throws ' around human life and property, and the right to take either as a measure of self-preservation is to be exercised in a moment of extraordinary exigency when the private or public necessity absolutely demands it.- The right to destroy property in cases of extreme emergency, as to prevent the spread of a conflagration, ' or as in the case now
There may be, it,is said, a strong controlling public necessity demanding the destruction of private property. The instances usually given are, to prevent the spread of a fire, the ravages of a pestilence, the advance of a hostile army, or any other great public calamity: Cooley Const. Lim., 594; 18 Wend., 129; 2 Denis, 461; 3 Col., 69; 1 Zab., 714; Id. 248; 15 Wend., 397. It is not an appropriation under the right of eminent domain, but an exercise of the police power: 3 Col., 69. The destruction is authorized by the law of overruling necessity; it is the exercise of a natural right belonging to every individual, not conferred by law, but tacitly excepted from all human codes. 2 Denio, 473; 1 Zab., 714; 4 Zab., 590. There are many cases, says Chancellor Kent, in which the rights of property must be made subservient to the public welfare. The maxim is that a private mischief is to be endured rather than a public inconvenience. On this ground rest the rights of public necessity. So it is lawful, says he, to prevent the spreading of a conflagration. These are the cases of urgent necessity in which no action lay at common law by the individual who sustained the injury; but