100 Tenn. 524 | Tenn. | 1898
The defendant in error, Miss Lillie Hines, recovered a verdict and judgment in the Second Circuit Court of Davidson County against the plaintiff in error for. the sum of $1,500 damages for personal injuries. The Circuit Judge being of opinion the damages were excessive, a remittitur of $3,000 was entered by the plaintiff, whereupon the Court overruled the motion for a new trial and pronounced judgment in favor of the plaintiff for $1,500.
The facts from which this ' litigation was evolved were, briefly, viz.: In September, 1892, M. P. Hines and wife, Lucy S. Hines, father and mother, respectively, of Miss Lillie Hines, the defendant in error, rented of A. V. S. Lindsley, agent for J. M. Willeox, the plaintiff in error, a two-story dwelling house on the southwest corner of Church and McLemore Streets, in the city of Nashville. The tenants went into possession October 1, 1892, and had been occupying the premises for about eleven months when the accident happened. The members of the family, including the defendant in error, were seated upon the back porch when it suddenly gave way, precipitating the defendant in error and others violently to the ground, whereby they sustained serious personal injuries. The gravamen of the action
(1) The plaintiff was living with her mother, Mrs. Lucy S. Hines, who rented the house under a contract with defendant that the same would be put in good, safe, and tenantable condition, and that the said Mrs. Hines, before she moved into the house, was assured by defendant that it had been' put in good, safe, and tenantable condition, as promised and agreed. •
(2) That the house, when .rented to the plaintiff’s mother, was in an unsafe . and dangerous condition, which fact was unknown to plaintiff, and which she could not have known by the exercise of due care and diligence, but which unsafe and dangerous condition was known 'to defendant, who concealed and withheld the same from said Mrs. Hines and plaintiff.
(3) That after Mrs. Hines took possession of the house defendant visited the premises, and his attention being called' to needed repairs, he promised and undertook to repair, and did repair, the same, but did so in a careless and negligent manner.
(4) That after Mrs. Hines took posession of the house, defendant undertook to repair and make safe said premises, and did repair the same, but did so in. a careless, negligent, and unskillful manner.
Plaintiff further alleges that it was the duty and obligation of defendants, as landlords and owners of said property, of which her mother was tenant as aforesaid, to have put, kept, and maintained the
“And plaintiff further avers that, for the purpose of misleading her with reference to the said condi-, tion of said property, said defendants falsely and fraudulently represented to her, and repeatedly assured her mother and herself that said property had been put and was in safe and tenantable condition, upon which representation and assurances on the part of said defendants plaintiff relied, as she had a right to do, ’ ’ etc.
In respect of the first count of the declaration, which alleges a contract to repair made by the agent of Willcox with M. P. Hines and wife, it- suffices to say that Miss Lillie Hines was not a party to that contract. Burdick v. Cheadle, 26 Ohio St., 393 (S. C., 20 Am. R., 767). This question was considered by this Court in the case of Stenberg v.
It is not necessary, therefore, to consider further the first count of the declaration.
The first assignment of error that will be considered is that there is no evidence to support the verdict. ' '
It appears from the record that the porch in question was about twelve or thirteen feet in height, and that it was attached to the rear of the house, extending almost its entire width. There was a flight of stairs leading to a platform that connected with the main porch. This porch was supported by wooden posts and was joined to the house at the top, while the floor of the porch was supported by timbers which were mortised in the timber affixed to the wall of the house. The record shows that the collapse of the porch was due to the fact that the
The second assignment is, that the Court erred in charging the jury that “if defendant, Willcox, saw that the porch was dangerous, after the Hines tenants moved in, and agreed to send some one to repair the porch and put it in safe condition, but that his workman failed to put it in a safe condition, but left it unsafe, and in consequence thereof plaintiff was injured,” she was entitled to recover. It is insisted this charge was erroneous for the reason there were no facts shown in evidence to support it. In this counsel are in error. Mrs. Hines testified that when the defendant, Willcox, came, and in person inspected the premises, his attention was called to the condition of this porch, and that, while protesting that it was safe, he promised to have it repaired as soon as the weather would permit. He
The third assignment is, that the Court erred in admitting testimony that after the post beneath the porch was fixed, the workman remarked: “Now, that is safe.” On this subject the Court, in its fifth instruction to the jury, said, viz.: “If you believe, from the proof, that the carpenter was sent there for the purpose of making the repairs, by the defendant or his authorized agents in charge of the property, then the statement or assurance of said carpenter, while performing the carpenter’s work, with reference to the porch being safe, on the completion of the work he had been sent to do, would be admissible, and such statements would be binding upon defendant; but if the proof fails to establish the fact to your satisfaction, that defendant or his authorized agents, etc., did send said carpenter upon the premises for the purpose of making the repairs upon said porch, then said carpenter was not the agent or representative of defendant, and defendant is not bound by anything done or said by said carpenter in making said repairs.
In the case of Gulick v. Grover, 97 Am. Dec., 728 (S. C., 33 N. J. Law, 463), it was held that, ‘ ‘ when the facts are undisputed, the question whether an agent has the requisite authority to bind his principal is a question of law for the Court, whether such authority is sought to be sustained by a previous authorization or by subsequent ratification.”
In the case of Savings Funds Society v. Savings
It is true this Court decided in Self v. State, 6 Bax., 244, that where confessions are offered as evidence, their competency becomes a preliminary question to be decided by the Court. This imposes
The fourth assignment is, the, Court erred in excluding the testimony of Dr. Halley, a reporter for the American, who called at the Hines residence just after the accident “to write it up.” - Witness talked with Miss Mamie Hines, an inmate of the house, and plaintiff’s sister, who told him she had known, or had said, that if that porch ' wasn’t fixed somebody would be hurt. The object of introducing this evidence was to show that the unsafe condition of the porch was a fact within the knowledge of at least one of the inmates of the house, and that such fact should have been known by plaintiff. If.this evidence was competent for any purpose, it should have been proved by Mamie Hines, who was not offered as a witness. But we fail to preceive how plaintiff could be affected by the knowledge of her sister in respect of the unsafe condition of the porch, and we think the evidence was properly excluded.
The fourteenth assignment is that the Court erred in refusing the following request, to wit: “The jury
This request is not strictly accurate on its face, since the preponderance of evidence may be determined, under certain conditions, ■ by the number of witnesses testifying to a particular fact. or state of facts. For instance, “one or two witnesses may testify to a given state’ of facts, and six or seven witnesses, of equal candor, fairness, intelligence, and truthfulness, and equally well corroborated by all the remaining evidence, and who have no greater interest in the result of the suit, testify against such state of facts, then the ' preponderance of the evidence is determined by the number of witnesses.” Sachets’ Instructions to Juries, 39. It is well settled, however, that by the term preponderance of evidence is not meant the .mere numerical array of witnesses, but it means the weight, credit, and value of the aggregate evidence on either side.” Coles v. Wrecker, 2 Tenn. Leg. Rep., 14; Hill v. Goodyear, 4 Lea, 243.
The Court in the- present instance was requested to charge that the preponderance of evidence does not mean the number of the witnesses, etc. If the request had stated that preponderance did not mean the number of the witnesses merely, it would have been accurate. A reversal will not be made for refusal
The remaining questions arise upon the charge of the Court, which is in strict accord with the principles laid down in Hines & Stenberg v. Willcox, reported in 12 Pickle. Judge Beard and the writer are of opinion those cases were erroneously decided and should be overruled. A majority-of the Court, however, adhere to those rulings, and. the result is the present judgment is affirmed.'