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yard in the comparative darkness some distance, probably 20 or 30 steps from the house, and that in a very few minutes three shots were heard, and the deceased came back through the gate towards the house saying the appellant had shot him. These shots were fired in rapid succession, but there was more intervening time between the first and second than the latter two shots. The state's only testimony as to what happened out there in the dark at the place of the homicide was through the dying declarations of the deceased. The state's witness Davis testified that the deceased, in a dying declaration made to him, stated that when they got out there the appellant commenced cursing the Normans (who it seems were friends of the deceased), and that he told the appellant not to do that, that he could not stand it, and appellant replied that he would have to stand it, and when appellant said that he hit him (deceased) over the head with a pistol, and that when appellant hit him with a pistol over the head the deceased grabbed the pistol and had hold of it when he was shot. On cross-examination he said: "I never heard him make any statement that he grabbed Sorrell." This, as we understand it, presents the state's theory in chief of the manner in which the difficulty arose, and, if this be true, the doctrine of provoking a difficulty could not be in the case. Under this testimony, regardless of the intent in seeking the meeting, and regardless of the sufficiency of the provocation given to provoke the difficulty, or the intent with which the same was given, the fact clearly remains that the deceased was not provoked into beginning the difficulty, and did not, in fact, begin the difficulty, but, on the contrary, the difficulty was begun by the appellant. As we have seen under the cases cited, this could in no event bring this case within the rule.

Under the appellant's theory, as shown by his own testimony, he invited the deceased out for the purpose of a friendly talk with him over the threats that he had heard as having been made by deceased and with reference to the trouble between the deceased and his two younger brothers. Appellant

testified:

"When we got there I just told Mr. Barker that I understood he had threatened my life and I just wanted to know why he did it and talk with him about it. He replied to me and said that he understood that I had threatened his life; and I asked him who told him that I had threatened his life; and he said Arthur Norman; and I said, 'If Arthur told you that he is a damn lie.' Just as I said that Barker struck me. He just struck me with his fist on my body. When he struck me he grabbed me, and as he grabbed me I drew the pistol, and he hit me again, and then I hit him with the pistol. I hit him over the head with it. When I hit him with the pistol I was trying to knock him loose from me, but when I struck him with the pistol it did not knock him loose, and I drew back to hit him again, and he grabbed the gun by one hand and me by the throat with the other and cursed me and said he would kill me."

*

Appellant further testified in this connection that the gun went off accidentally the first time and when he had no control of it, and that while they were scuffling over the gun, the deceased having him by the throat with one hand and the gun with the other, that he finally managed to turn the gun on the deUnder this theceased and shot him twice. ory, if true, provoking a difficulty would not be in the case, because appellant's purpose and acts were all of a conciliatory character, and the deceased, according to appellant's statement, committed an unprovoked assault upon him which got to the point where appellant's life was endangered. There is, however, another version of this case as developed through the testimony of the witness Messer, at whose house the ice-cream supper was being held and the homicide occurred. Mr. Messer, in testifying to the dying declaration made to him by the deceased to the effect that after the deceased had gotten outside the yard with appellant the appellant made some derogatory remark with reference to something the Normans were doing or had done, and the deceased denied that the Normans had done this or were doing it, and the dying declaration of the deceased then proceeds as

follows:

"And that Pearl then cursed him [deceased], and told him they were, and deceased said, 'Pearl, do not curse me.' He said he told Pearl he could not take it, and that Pearl cursed him again, and told him he had to take it, and he said then he grabbed Sorrell, and as he grabbed Sorrell he [Sorrell] hit him on the head and brought the gun down and the shooting commenced. He said that as he grabbed Sorrell Sorrell hit him on the head and brought the gun down and the shooting commenced."

On cross-examination this witness further testified as to the dying declaration:

"He just said he [deceased] grabbed him [appellant]. He said Sorrell then hit him over the head with a pistol. He did not say Sorrell hit him just as soon as he grabbed him, but said he grabbed Sorrell and Sorrell hit him."

If this last dying declaration be a true version of what occurred at the immediate time of the homicide, then provoking a diffiAs the rule is that culty was in the case. the court must charge upon every phase of the case presented by any testimony, howsoever slight, it became the duty of the court to charge in this case the law with reference to the doctrine of provoking a difficulty. This charge should, of course, be carefully drawn to cover the particular facts in evidence in this case which justify it, and worded in such a way that the jury could not misapply it to other facts and circumstances. Having thus decided that the court was cor rect in submitting the doctrine of provoking a difficulty as part of the law of this case, the appellant's contention to the contrary will, of course, be overruled, and we next come to consider his objections to the charge upon that issue as given.

[20] 16. In this connection the court instructed the jury that appellant "had a right in law to invite deceased off from the crowd

the weight of evidence. Parnell v. State, 51 Tex. Cr. R. 623, 103 S. W. 907.

The record in this case is voluminous, containing something over 400 pages. We have undertaken to dispose of all of the issues essential for another trial as briefly as the questions presented would permit.

For the errors pointed out, this cause is reversed and remanded.

PRENDERGAST, P. J. I believe the judgment should be affirmed, and dissent from its reversal.

GAINES v. EASON.

(Supreme Court of Tennessee. July 29, 1914.) 1. EXECUTORS AND ADMINISTRATORS (§ 510*)JUDICIAL SETTLEMENT OF ACCOUNTS.

for the purpose of peaceable discussing and settling with him [Barker] any previous difficulty between deceased and his [defendant's] brothers, or any threats, if any," etc. Appellant made timely objections to this charge on account of the use of the word "peaceable." As this opinion has already grown lengthy, though seemingly unavoidably so to the writer, we content ourselves by a statement that under the authorities in this state the use of the word "peaceable" or other language of similar import in this connection is error. It places a burden upon the appellant not placed there by law. The court in charging on provoking a difficulty ordinarily presents the state's case affirmatively, as was done in this instance, from the state's viewpoint. The appellant is then entitled to the converse of the proposition from his viewpoint untrammeled by any extra burden or insinuation. Duke v. State, 61 Tex. Cr. R. 19, 133 S. W. 435; King v. State, 51 Tex. Cr.istrators; section 4031, relating to the setR. 210, 101 S. W. 237, 122 Am. St. Rep. 881; McCleary v. State, 57 Tex. Cr. R. 139, 122 S. W. 26. As seen, the court undertook, after having charged on provoking a difficulty, to charge the converse of the proposition. With the exception above pointed out, these charges presenting the appellant's side of this issue seem to have been correct as far as they went, but we think that the charge should have gone further and applied the law to the facts substantially as it is done in appellant's requested charges Nos. 1 and 8. In other words, the jury should be told that appellant had the right to call the deceased aside for the purpose of having a conversation with him with reference to threats or

the former difficulty with his brothers, etc., and that if deceased assaulted appellant that appellant's rights of self-defense would not be impaired. The jury should also be told plainly that if the appellant provoked a difficulty, but with no intention to kill the deceased, he would not be guilty of a higher grade of homicide than manslaughter. The above suggestions are not intended as a form of the charge, but merely calling the court's attention to the point.

[21] Appellant's requested charge No. 5 is a correct enunciation of the law as we see it, but, if the suggestions hereinbefore made are

met in the main charge, this issue will be sufficiently covered without this special charge, nor will the special charge No. 7 be necessary. The other special charges all refer to evidence which has been excluded by rulings made in this opinion and to conduct of prosecuting attorneys, which will not likely occur upon another trial. So we see no good purpose to be served by discussing these

matters at this time.

the county court original jurisdiction of the setShannon's Code, § 6027, subsec. 4, gives tlements of accounts by executors and admin

tlement of solvent estates, requires each execqualification to file his accounts with the clerk utor, or administrator within two years after of the county court. Section 4034 requires the clerk to give notice to parties interested, and section 4038 provides that any person interested in the estate may except to the account after it has been stated by the clerk, and, if dissatisfied with the clerk's decision, may appeal to the county court. Held, that in view of section 4040, providing for an appeal from the judgment of the county court, that court has jurisdiction to dispose of the exceptions, and it is not necessary to appeal from the clerk's decision to the circuit or chancery court as in ceeding in Shelby county for the settlement of case of insolvent estates, and hence in a proan administrator's accounts, the probate court had jurisdiction to dispose of exceptions to such accounts.

and Administrators, Cent. Dig. 88 2235–2256; [Ed. Note.-For other cases, see Executors Dec. Dig. § 510.*]

2. COURTS (§ 202*)-JURISDICTION-COURT OF APPEALS.

While Shannon's Code, § 387, provides for a probate court in Shelby county, and for apsince the creation of the Court of Civil Appeals peals therefrom to the Supreme Court, yet by Acts 1907, c. 82, appeals should be taken from the probate court to the Court of Civil Appeals, where the amount in controversy is within that tribunal's exclusive jurisdiction.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 480-486; Dec. Dig. § 202.*]

Certiorari to Court of Civil Appeals. istrator, to which Theodosia Eason filed exAccounting by George A. Gaines, as adminceptions, and to which complainant also filed exceptions. From a judgment disposing of the exceptions, and rendering judgment for the balance due from complainant, Theodosia Eason appealed, and the judgment being affirmed by the Court of Civil Appeals, she Writ depetitions for a writ of certiorari.

nied.

S. O. Bates, of Memphis, for Gaines. H. D. Hughey, of Memphis, for Eason.

The state's requested charge No. 1, which was given by the court, we think, was error. This issue was sufficiently covered by the general charge, and to give the special charge NEIL, C. J. This case came to us from directly pointing out specific acts was upon the Court of Civil Appeals on petition for the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

writ of certiorari. We are of the opinion year thereafter until the administration is that the Court of Civil Appeals reached the correct conclusion on all of the questions and the writ must therefore be denied. There is, however, a point of practice upon which we deem it necessary to write a brief opinion.

The complainant was administrator of defendant's husband. Desiring to settle his accounts in the probate court of Shelby county, he caused the clerk of that court to issue a written notice to the defendant informing her that the settlement would be made on May 15, 1912. This notice was duly served, but she failed to appear on the day fixed. On that day the clerk stated the account, and filed it in his office. On May 31, 1913, defendant appeared by attorney and filed exceptions to sundry items in the settlement. Complainant also filed exceptions. The report and exceptions were then brought to the attention of the judge of the probate court. He passed on them, allowing some of the exceptions, and disallowing others, ascertaining the balance against the plaintiff, and rendered judgment therefor. From this judgment an appeal was prosecuted to this court, at the last term. Here the case was transferred to the Court of Civil Appeals, because the amount of the judgment was too small to enable this court to take jurisdiction under chapter 82, Assembly Acts of 1907. It was there tried and decided, and came here by petition for certiorari, as stated.

[1] In the petition and accompanying brief it was insisted that the exceptions should not have been tried by the probate judge, but by the clerk, and that an appeal should have been prosecuted from his judgment to the circuit court, pursuant to the proceedings laid down in the Code for the adjudication of claims against insolvent estates in course of settlement in the county court. It was thereupon further insisted that neither this court nor the Court of Civil Appeals had jurisdiction of the appeal.

This is a mistaken view. The estate was not an insolvent one. The practice pursued was that laid down in Shannon's Code, §§ 4031-4046, inclusive, which concern the settlement of solvent estates. Quite a different plan is provided for the settlement of insolvent estates. We have therefore considered the latter subject in a series of opinions; Bashaw, Ex'r, v. Temple, 115 Tenn. 596, 602, 603, 91 S. W. 202; Key v. Harris, 116 Tenn. 161, 92 S. W. 235, 8 Ann. Cas. 200; Harness v. Hughett, 117 Tenn. 489, 497, 97 S. W. 68.

The county court has original jurisdiction of the settlement of accounts of executors or administrators. Shannon's Code, § 6027, subsec. 4. After the lapse of two years from his qualification every executor or administrator is required to settle his accounts with the clerk of the county court, and once every

closed. Section 4031. If any representative fail to settle in the manner prescribed, the clerk is required to cite him to appear and settle on a given day, to be specified in the citation. Section 4033. No accounting or settlement is to be had until the clerk has served the parties interested and resident within his county, or the agent or attorney of such as reside elsewhere, with notice of the taking of the account at least five days before the day fixed for taking it. Section 4034. If any of the parties interested do not reside in the county, or have no agent in it, the clerk is required to put up a notice on the courthouse door 10 days before the account is taken, or publish the notice in a newspaper in the county. Id.

This notice to the interested parties is the beginning of a litis or suit. When the representative qualifies, he submits himself to the jurisdiction of the court, and becomes amenable to its orders. The persons interested in the estate are brought in by the notice required by section 4034.

The clerk, when he deems it necessary, may examine the representative on oath touching his receipts and disbursements. Section 4035. On sufficient cause being made to appear by affidavit, he may continue the taking of the account from time to time. Section 4036. In making up the account he is required to charge the representative with all such sums of money as he has received, or might have received by using due and reasonable diligence, and to credit him with reasonable compensation for his services, and with such disbursements as he supports by lawful vouchers. Section 4037.

After the account has been taken by the clerk any party in interest may file exceptions, and have them acted on by the clerk, and if dissatisfied with the clerk's decision thereon he may appeal to the county court; or he may wait until the clerk presents the report to the court, and then file his exceptions, and have them acted on by the court. Section 4038.

In either event it becomes the duty of the county court to pass on the exceptions, and finally settle the account, and enter judgment accordingly, from which judgment either party may prosecute an appeal to the chancery or circuit court of the county. Section 4040.

[2] In cases of this kind arising in the probate court of Shelby county, the appeal by special statute goes direct to the Supreme Court. Sh. Code, § 387. But since the creation of the Court of Civil Appeals (Chapter 82, Acts of 1907), it has been held that cases involving amounts cognizable only in the Court of Civil Appeals must be appealed to that court. Eason v. Gaines, 127 Tenn. 662, 156 S. W. 1084.

H. E. WILSON & CO. v. ILLINOIS CENT.
R. CO. (No. 34.)

(Supreme Court of Tennessee. July 29, 1914.) 1. CARRIERS (§ 218*) TRANSPORTATION OF ANIMALS-DAMAGES-CONTRACT VALUATION. Where a contract for the transportation of certain horses provided that it was agreed that the value of each horse should not exceed $100, and that the carrier's liability for any loss or damage should not exceed the actual cost at the point of shipment, and in no event the contract valuation, the measure of the owner's damage for injuries to the animals in transportation by reason of the carrier's negligence was the amount each animal had been depreciated in value by reason of its injuries not in excess of the actual cost of the animal at the point of shipment, and in no event in excess of the contract value.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. § 218.*]

2. CARRIERS (§ 228*) TRANSPORTATION OF
ANIMALS-COST AT SHIPPING POINT.
Where a contract for the transportation
of animals provided that the carrier's liability
should not exceed actual cost at the point of
shipment, the actual cost at that point was
sufficiently proven by showing the market value
of the animals there, in the absence of evidence
that they were bought for less than their mar-

ket value.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.*]

Appeal from Circuit Court, Shelby County; A. B. Pittman, Judge.

Actions by H. E. Wilson & Co. against the Illinois Central Railroad Company. Judgments for plaintiff in each case were reversed by the Court of Civil Appeals, and plaintiff appeals. Judgments of the Court of Civil Appeals affirmed, and cause remanded.

Bacon & Stickley, of Memphis, for H. E. Wilson & Co. Biggs & Evans and C. N. Burch, of Memphis, for Illinois Cent. R. Co. NEIL, C. J. The plaintiff shipped two car loads of horses from Chicago, Ill., to Memphis, Tenn., at the rate of $62 freight for each car. There was a special contract which contained the following stipulation:

"It is further expressly agreed that the value of the live stock to be transported under this contract does not exceed the following sums: Each horse (gelding or mare) or pony, stallion, mule or jack.. Each ox or bull.

Each cow....

Each calf or pig.
Each sheep....

offered to show the invoice prices of the horses at Chicago, but the market value of the animals at Chicago was shown. It was proven that one of the horses in the shipment of February 13, 1912, was worth, on the Memphis market, $100, and the others in that shipment ranged in value, on the Memphis market, from $115 to $175. A statement showing the value of each horse on the Memphis market was filed. In the other car-the shipment of February 28th-one horse was valued at $90 on the Memphis market, and the others from $100 to $135. A statement was also filed showing the damages to these horses and their value on the Memphis market. The plaintiffs also testified that there was very little difference between the Chicago and the Memphis markets.

The defendants introduced evidence tending to show that the horses were damaged when they left Chicago, and also that the shipments made in the present case moved under a freight tariff duly filed with the interstate commerce commission, and posted and published as required by law; that the bills of lading were issued under that tariff, and conformed to it, and that the rate from Chicago to Memphis thereunder was $62 per car. It was also shown that, if the shipments had not been made under that tariff and under the special valuation and provisions set forth in the bills of lading, the rate would have been 25 per cent. in excess of $62 per car. The defendant also introduced evidence tending to show that there was no rough handling of the horses.

The court charged the jury as follows:

"There is a contract of shipment in each case, one clause of which provides that, for the purpose of this law suit, the horses shall be considered as of value not exceeding $100, so that the jury, if they should find that injury was done to the horses, one or more of them, through the negligence of the railroad company, the jury shall compute the injuries done to the horse or horses upon the basis that the horse or horses were worth what the evidence shows them to have been worth, not, however, to exceed $100 each. If the evidence should show that one horse which was injured was worth $150, the jury should treat that horse as being worth $100. But, if the evidence should show that a horse injured was worth $75, the jury should $100 00 deal with him as though he were worth $75. 50 00 In other words, you must consider the evidence 30 00 as it shows injury to the horses in the light of 10 00 the value shown by the evidence attached to 3 00 the horses, unless that value exceeds $100; then you will limit the value of the horses to $100 in computing or estimating the damage that was done to them by any injury received. debate here about whether or not you shall take "Now, you gentlemen have heard the lawyers the Chicago market, or the Memphis market, in arriving at the value of the horses. Witnesses have testified what the horses were worth in Memphis, and witnesses have testified to what they were worth in Chicago. The court recalls that there is very little, if any, difference between the witnesses; but, however that may be, I instruct you to take the Memphis values as the the horse worth in Memphis, and then what basis of your computation (that is, what was injury, if any, was done to him), and in that

"And the liability of the railroad company for any loss or damage for which it may be responsible shall not exceed the actual cost at the point of shipment, and in no event exceed the above valuation for each animal."

The plaintiffs introduced evidence tending to show the market value of the horses at Memphis, and the damage to each horse based upon that market value. The defendant objected on the ground that, under the provision of the contract above quoted, the actual cost at the point of shipment would control. This objection was overruled. No testimony was

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

way reach your damages, if you find in favor of the plaintiff."

The jury rendered a verdict in favor of the plaintiffs for $400 for damages done to the animals in one car and for $250 as damages to the animals in the other car. There were two cases, but they were tried together. From these judgments an appeal was prosecuted by the railway company to the Court of Civil Appeals, and that court reversed the judgments and sent the cases back for a new trial.

[1] In disposing of the matter, the Court of Civil Appeals used the following language: "The assignments of error present but one question, and that is the construction and meaning of the valuation clause of the contracts under which the animals were shipped, and the amount for which the railroad company should be liable in case of loss or injury for which it was responsible.

"We are of opinion that, under a proper interpretation of the contracts, the railroad company was liable to the plaintiffs below for damages upon each injured animal for an amount not to exceed the actual cost of the animal at the point of shipment, and in no event could the plaintiff in error be held liable for damage to each animal, in excess of the declared valuation of $100. In other words, if the animal cost, at the point of shipment, a sum less than $100, the defendant in error could not recover damage in excess of said sum, and in no event could he recover for each animal an amount in excess of the declared value of $100.

"The measure of damages was not the difference between what the market value of the animals would have been in Memphis, if they had arrived in good condition, and their market value in their injured condition, as the jury were told by the trial judge in his structions, but was the amount that each animal had been depreciated in value by reason of the injuries sustained, not in excess of the actual cost of the animal at the point of shipment, and in no event to exceed the declared value of $100.

"While it was competent for the defendant in error to introduce proof tending to show the market value of the animals at the point of destination, his recovery could not exceed the invoice price of the animals at the point of shipment, and if the animals cost more, at the point of shipment, than $100, the amount to be recovered by him could not exceed the sum of $100. He was entitled to recover, however, for the injury sustained to each animal, the amount that each animal had been depreciated in value by such injury, not in excess of the alternative amounts fixed in the contracts, without reference to what element of value remained in the animals."

In disposing of the matter the court said: "The ordinary measure of damages for breach of a carrier's obligation to deliver freight is the value of the goods at the time and place of delivery (Civil Code, § 3316); but this liability may be limited by special contract (Id. § 2174); and here there was a special contract signed by the plaintiff making the invoice price at the point of shipment the measure of damages. It is true there was no invoice price actually made out and agreed upon at the time the trees were shipped; but this clause cannot for that reason should receive a reasonable construction, and be treated as meaningless and inoperative. It the most reasonable construction of which it is susceptible is that by invoice price was meant the actual value of the trees at the point of shipment when loaded and ready for transportation."

The shipment consisted of orange trees, billed from a point in Florida to a point in California.

We are of the opinion that the market value at the point of shipment would be sufficient evidence of the actual cost at that point, in the absence of evidence showing that the goods were there purchased at less than the market value.

The judgment must be reversed in the present case because of error in the charge of the trial judge in fixing the market value at Memphis as the criterion. It is true he said in his charge there was no substantial differ

ence between the market value at the two points, but we do not think it was proper for him to make such a statement to the jury. The evidence was, as already shown, that there was very little difference between the two markets; however, it appears from this there was a difference, and whatever it was the defendant was entitled to the benefit of it.

We are of the opinion that the Court of Civil Appeals correctly construed the contract.

The result is the judgment of the Court of Civil Appeals must be affirmed, and the cause remanded for a new trial.

BOAS et al. v. COATS et al. (No. 108.) (Supreme Court of Arkansas. July 13, 1914.) 1. STATUTES (§ 161*)-REPEAL-IMPLIED RE

PEAL.

We concur in the view expressed by the 527), providing that, where improvement disAlthough Act March 3, 1913 (Acts 1913, p. Court of Civil Appeals in the language quot-tricts are organized in municipalities where no

ed, with a slight modification as follows:

[2] We are of the opinion that the actual cost at the point of shipment was sufficiently shown by proving the market value at that point. Pierce v. Southern Pacific Co., 120 Cal. 156, 47 Pac. 874, 52 Pac. 302, 40 L. R. A.

350.

newspaper is regularly published, notices may be
published in any newspaper published and hav-
ing a bona fide circulation in the county, did not
expressly repeal the act of January 30, 1913
(Acts 1913, p. 27), amending Kirby's Dig. §
5685, relating to that subject, yet, being the last
expression of the will of the Legislature, it oper-
ates as an implied repeal of those statutes.
[Ed. Note.-For other cases, see Statutes,

In the case cited the provision of the con- Cent. Dig. §§ 230-234; Dec. Dig. § 161.*] tract was:

"It is further agreed that the actual invoice cost at the point of shipment will be taken as measure of damages to govern settlement of any damages for which the carriers may be liable."

2. MUNICIPAL CORPORATIONS (§ 408*)—PubLIC IMPROVEMENTS-ORDINANCES-PUBLICA

TION-STATUTE.

Act March 3, 1913 (Acts 1913, p. 527), providing that, where improvement districts are organized in any city or town in which no news

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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