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yard in the comparative darkness some dis Appellant further testified in this connectance, probably 20 or 30 steps from the tion that the gun went off accidentally the first house, and that in a very few minutes three time and when he had no control of it, and shots were heard, and the deceased came that while they were scuffling over the gun, back through the gate towards the house the deceased having him by the throat with saying the appellant had shot him. These one hand and the gun with the other, that he shots were fired in rapid succession, but finally managed to turn the gun on the de there was

more intervening time between ceased and shot him twice. Under this thethe first and second than the latter two shots. ory, if true, provoking a difficulty would not

The state's only testimony as to what hap- be in the case, because appellant's purpose pened out there in the dark at the place of and acts were all of a conciliatory character, the homicide was through the dying declara- and the deceased, according to appellant's tions of the deceased. The state's witness statement, committed an unprovoked assault Davis testified that the deceased, in a dying upon him which got to the point where appeldeclaration made to him, stated that when lant's life was endangered. There is, howthey got out there the appellant commenced ever, another version of this case as developed cursing the Normans (who it seems were through the testimony of the witness Messer, friends of the deceased), and that he told the at whose house the ice-cream supper was beappellant not to do that, that he could not ing held and the homicide occurred. Mr. stand it, and appellant replied that he would Messer, in testifying to the dying declaration have to stand it, and when appellant said made to him by the deceased to the effect that he hit him (deceased) over the head with that after the deceased had gotten outside the a pistol, and that when appellant hit him yard with appellant the appellant made some with a pistol over the head the deceased derogatory remark with reference to somegrabbed the pistol and had hold of it when he thing the Normans were doing or had done, was shot. On cross-examination he said: and the deceased denied that the Normans “I never heard him make any statement that had done this or were doing it, and the dying he grabbed Sorrell.” This, as we understand declaration of the deceased then proceeds as

follows: it, presents the state's theory in chief of the manner in which the difficulty arose, and, if and told him they were, and deceased said,

“And that Pearl then cursed him (deceased), this be true, the doctrine of provoking a dif- 'Pearl, do not curse me.' 'He said he told Pearl ficulty could not be in the case. Under this he could not take it, and that Pearl cursed him testimony, regardless of the intent in seeking again, and told him he had to take it, and he the meeting, and regardless of the sufficiency Sorrell he (Sorrell] hit him on the head and

said then he grabbed Sorrell, and as he grabbed of the provocation given to provoke the dif- brought the gun down and the shooting com. ficulty, or the intent with which the same menced. He said that as he grabbed Sorrell was given, the fact clearly remains that the Sorrell hit him on the head and brought the deceased was not provoked into beginning the gun down and the shooting commenced." difficulty, and did not, in fact, begin the dif

On cross-examination this witness further ficulty, but, on the contrary, the difficulty testified as to the dying declaration: was begun by the appellant. As we have

"He just said he (deceased) grabbed him (ap

pellant). He said Sorrell then hit him over seen under the cases cited, this could in no the head with a pistol. He did not say Sorrell event bring this case within the rule. hit him just as soon as he grabbed him, but

Under the appellant's theory, as shown by said he grabbed Sorrell and Sorrell hit him." his own testimony, he invited the deceased

If this last dying declaration be a true out for the purpose of a friendly talk with version of what occurred at the immediate him over the threats that he had heard as time of the homicide, then provoking a diffihaving been made by deceased and with ref- culty was in the case. As the rule is that erence to the trouble between the deceased the court must charge upon every phase of and his two younger brothers. Appellant the case presented by any testimony, howsotestified:

ever slight, it became the duty of the court "When we got there I just told Mr. Barker to charge in this case the law with reference that I understood he had threatened my life to the doctrine of provoking a difficulty. and I just wanted to know why he did it and This charge should, of course, be carefully talk with him about it. He replied to me and drawn to cover the particular facts in evisaid that he understood that I had threatened his life; and I asked him who told him that dence in this case which justify it, and wordI had threatened his life; and he said Arthur ed in such a way that the jury could not misNorman; and I said, 'If Arthur told you that apply it to other facts and circumstances. he is a damn lie.' Just as I said that Barker Having thus decided that the court was corstruck me. He just struck me with his fist on my body. When he struck me he grabbed me, rect in submitting the doctrine of provoking and as he grabbed me I drew the pistol, and a difficulty as part of the law of this case, the he hit me again, and then I hit him with the appellant's contention to the contrary will, pistol. * I hit him over the head with it. When I hit him with the pistol I was of course, be overruled, and we next come to trying to knock him loose from me, but when I consider his objections to the charge upon struck him with the pistol it did not knock him that issue as given. loose, and I drew back to hit him again, and he grabbed the gun by one hand and me by the

[20] 16. In this connection the court inthroat with the other and cursed me and said structed the jury that appellant "had a right he would kill me."

in law to invite deceased off from the crowd

for the purpose of peaceable discussing and the weight of evidence. Parnell v. State, 51 settling with him [Barker) any previous dif- Tex. Cr. R. 623, 103 S. W. 907. ficulty between deceased and his (defend- The record in this case is voluminous, conant's] brothers, or any threats, if any," etc. taining something over 400 pages. We have Appellant made timely objections to this undertaken to dispose of all of the issues charge on account of the use of the word essential for another trial as briefly as the "peaceable.” As this opinion has already questions presented would permit. grown lengthy, though seemingly unavoida- For the errors pointed out, this cause is bly so to the writer, we content ourselves by reversed and remanded. a statement that under the authorities in this state the use of the word "peaceable" or oth- PRENDERGAST, P. J. I believe the judger language of similar import in this connec- ment should be affirmed, and dissent from its tion is error. It places a burden upon the reversal. appellant not placed there by law. The court in charging on provoking a difficulty ordinarily presents the state's case affirmatively,

GAINES v. EASON. as was done in this instance, from the state's (Supreme Court of Tennessee. July 29, 1914.) viewpoint. The appellant is then entitled to 1. EXECUTORS AND ADMINISTRATORS (8 510*)the converse of the proposition from his view- JUDICIAL SETTLEMENT OF ACCOUNTS. point untrammeled by any extra burden or the county court original jurisdiction of the set

Shannon's Code, $ 6027, subsec. 4, gives insinuation. Duke v. State, 61 Tex. Cr. R. tlements of accounts by executors and admin19, 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; tlement of solvent estates, requires each execMcCleary v. State, 57 Tex. Cr. R. 139, 122 S. qualification to file his accounts with the clerk

utor, or administrator within two years after W. 26. As seen, the court undertook, after of the county court. Section 4034 requires the having charged on provoking a difficulty, to clerk to give notice to parties interested, and charge the converse of the proposition. With

section 4038 provides that any person interthe exception above pointed out, these charg- after it has been stated by the clerk, and, if

ested in the estate may except to the account es presenting the appellant's side of this is- dissatisfied with the clerk's decision, 'may apsue seem to have been correct as far as they peal to the county court. Held, that in view of went, but we think that the charge should section 4040, providing for an appeal from the have gone further and applied the law to the jurisdiction to dispose of the exceptions, and it

judgment of the county court, that court has facts substantially as it is done in appel- is not necessary to appeal from the clerk's delant's requested charges Nos. 1 and 8. In cision to the circuit or chancery court as in other words, the jury should be told that ap- ceeding in Shelby county for the settlement of

case of insolvent estates, and hence in a propellant had the right to call the deceased

an administrator's accounts, the probate court aside for the purpose of having a conversa had jurisdiction to dispose of exceptions to tion with him with reference to threats or

such accounts. the former difficulty with his brothers, etc., and Administrators, Cent. Dig. ss 2235–2256;

[Ed. Note.-For other cases, see Executors and that if deceased assaulted appellant that Dec. Dig. 8 510.*] appellant's rights of self-defense would not be

2. COURTS ($ 202*)-JURISDICTION-COURT OF impaired. The jury should also be told plain- APPEALS. ly that if the appellant provoked a difficulty, While Shannon's Code, $ 387, provides for but with no intention to kill the deceased, he a probate court in Shelby county, and for apwould not be guilty of a higher grade of hom- since the creation of the Court of Civil Appeals

peals therefrom to the Supreme Court, yet icide than manslaughter. The above sugges- by Acts 1907, c. 82, appeals should be taken tions are not intended as a form of the from the probate court to the Court of Civil charge, but merely calling the court's atten- | Appeals, where the amount in controversy is

within that tribunal's exclusive jurisdiction. tion to the point.

(Ed. Note.-For other cases, see Courts, [21] Appellant's requested charge No. 5 is Cent. Dig. 88 480-486; Dec. Dig. $ 202.*] a correct enunciation of the law as we see it,

Certiorari to Court of Civil Appeals. but, if the suggestions hereinbefore made are

Accounting by George A. Gaines, as adminmet in the main charge, this issue will be sufficiently covered without this special istrator, to which Theodosia Eason filed excharge, nor will the special charge No. 7 be ceptions, and to which complainant also filed necessary. The other special charges all re- exceptions. From a judgment disposing of fer to evidence which has been excluded by the exceptions, and rendering judgment for rulings made in this opinion and to conduct the balance due from complainant, Theodosia of prosecuting attorneys, which will not like Eason appealed, and the judgment being afly occur upon another trial. So we see no

firmed by the Court of Civil Appeals, she good purpose to be served by discussing these petitions for a writ of certiorari. Writ de

nied. matters at this time.

The state's requested charge No. 1, which S. O. Bates, of Memphis, for Gaines. H. D. was given by the court, we think, was error. Hughey, of Memphis, for Eason. 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

writ of certiorari. We are of the opinion year thereafter until the administration is that the Court of Civil Appeals reached the closed. Section 4031. If any representative correct conclusion on all of the questions and fail to settle in the manner prescribed, the the writ must therefore be denied. There is, clerk is required to cite him to appear and however, a point of practice upon which we settle on a given day, to be specified in the deem it necessary to write a brief opinion. citation. Section 4033. No accounting or set

The complainant was administrator of de- tlement is to be had until the clerk has fendant's husband. Desiring to settle his ac- served the parties interested and resident counts in the probate court of Shelby county, within his county, or the agent or attorney of he caused the clerk of that court to issue a such as reside elsewhere, with notice of the written notice to the defendant informing her taking of the account at least five days bethat the settlement would be made on May fore the day fixed for taking it. Section 15, 1912. This notice was duly served, but 4034. If any of the parties interested do not she failed to appear on the day fised. On reside in the county, or have no agent in it, that day the clerk stated the account, and the clerk is required to put up a notice on filed it in his office. On May 31, 1913, de the courthouse door 10 days before the acfendant appeared by attorney and filed ex- count is taken, or publish the notice in a ceptions to sundry items in the settlement. newspaper in the county. Id. Complainant also fled exceptions. The re This notice to the interested parties is the port and exceptions were then brought to the beginning of a litis or suit. When the repreattention of the judge of the probate court. sentative qualifies, he submits himself to the He passed on them, allowing some of the ex- jurisdiction of the court, and becomes amenceptions, and disallowing others, ascertaining able to its orders. The persons interested the balance against the plaintiff, and rendered in the estate are brought in by the notice rejudgment therefor. From this judgment an quired by section 4034. appeal was prosecuted to this court, at the The clerk, wben he deems it necessary, may last term. Here the case was transferred to examine the representative on oath touching the Court of Civil Appeals, because the his receipts and disbursements. Section 4035. amount of the judgment was too small to en- On sufficient cause being made to appear by able this court to take jurisdiction under atfidavit, he may continue the taking of the chapter 82, Assembly Acts of 1907. It was account from time to time. Section 4036. In there tried and decided, and came here by making up the account he is required to petition for certiorari, as stated.

charge the representative with all such sums [1] In the petition and accompanying brief of money as he has received, or might have it was insisted that the exceptions should not received by using due and reasonable dili. have been tried by the probate judge, but by gence, and to credit him with reasonable comthe clerk, and that an appeal should have pensation for his services, and with such disbeen prosecuted from his judgment to the cir- bursements as he supports by lawful vouchcuit court, pursuant to the proceedings laid ers. Section 4037. down in the Code for the adjudication of After the account has been taken by the claims against insolvent estates in course of clerk any party in interest may file excepsettlement in the county court. It was there tions, and have them acted on by the clerk, upon further insisted that neither this court and if dissatisfied with the clerk's decision nor the Court of Civil Appeals had jurisdic- thereon he may appeal to the county court; tion of the appeal.

or he may wait until the clerk presents the This is a mistaken view. The estate was report to the court, and then file his excepnot an insolvent one. The practice pursued tions, and have them acted on by the court. was that laid down in Shannon's Code, 88 Section 4038. 4031-4046, inclusive, which concern the set In either event it becomes the duty of the tlement of solvent estates. Quite a different county court to pass on the exceptions, and plan is provided for the settlement of insolv- finally settle the account, and enter judgment ent estates. We have therefore considered accordingly, from which judgment either the latter subject in a series of opinions; party may prosecute an appeal to the chancery Bashaw, Ex'r, v. Temple, 115 Tenn. 596, 602, or circuit court of the county. Section 4040. 603, 91 S. W. 202; Key v. Harris, 116 Tenn. [2] In cases of this kind arising in the pro161, 92 S. W. 235, 8 Ann. Cas. 200; Harness bate court of Shelby county, the appeal by v. Hughett, 117 Tenn. 489, 497, 97 S. W. 68. special statute goes direct to the Supreme

The county court has original jurisdiction Court. Sh. Code, 8 387. But since the creaof the settlement of accounts of executors or tion of the Court of Civil Appeals (Chapter administrators. Shannon's Code, $ 6027, sub-82, Acts of 1907), it has been held that cases sec. 4. After the lapse of two years from his involving amounts cognizable only in the qualification every executor or administrator Court of Civil Appeals must be appealed to is required to settle his accounts with the that court. Eason v. Gaines, 127 Tenn. 662, clerk of the county court, and once every 156 S. W. 1084.

offered to show the invoice prices of the H. E. WILSON & CO. v. ILLINOIS CENT. horses at Chicago, but the market value of R. CO. (No. 34.)

the animals at Chicago was shown. It was (Supreme Court of Tennessee. July 29, 1914.) proven that one of the horses in the shipment 1. CARBIERS ($ 218*) - TRANSPORTATION OF of February 13, 1912, was worth, on the MemANIMALS-DAMAGES-CONTRACT VALUATION. phis market, $100, and the others in that

Where a contract for the transportation of certain horses provided that it was agreed that shipment ranged in value, on the Memphis the value of each horse should not exceed $100, market, from $115 to $175. A statement and that the carrier's liability for any loss or showing the value of each horse on the Memdamage should not exceed the actual cost at phis market was filed. In the other car—the the point of shipment, and in no event the contract valuation, the measure of the owner's shipment of February 28th—one horse was damage for injuries to the animals in transpor- valued at $90 on the Memphis market, and tation by reason of the carrier's negligence was the others from $100 to $135. A statement the amount each animal bad been depreciated in value by reason of its injuries not in excess of was also filed showing the damages to these the actual cost of the animal at the point of horses and their value on the Memphis marshipment, and in no event in excess of the con- ket. The plaintiffs also testified that there tract value.

was very little difference between the Chi. (Ed. Note.-For other cases, see Carriers, Cent. Dig. $$ 674-696, 927, 928, 933-949; Dec. cago and the Memphis markets. Dig. § 218.*)

The defendants introduced evidence tend2. CARRIERS ($ 228*) TRANSPORTATION OF ing to show that the horses were damaged ANIMALS-CosT AT SHIPPING POINT.

when they left Chicago, and also that the Where a contract for the transportation shipments made in the present case moved of animals provided that the carrier's liability should not exceed actual cost at the point of under a freight tariff duly filed with the inshipment, the actual cost at that point was terstate commerce commission, and posted sufficiently proven by showing the market value and published as required by law; that the of the animals there, in the absence of evidence that they were bought for less than their mar- bills of lading were issued under that tariff, ket value.

and conformed to it, and that the rate from (Ed. Note.-For other cases, see Carriers, Chicago to Memphis thereunder was $62 per Cent, Dig. 88 957-960; Dec. Dig. 8 228.* ]

car. It was also shown that, if the shipments Appeal from Circuit Court, Shelby County; had not been made under that tariff and A. B. Pittman, Judge.

under the special valuation and provisions Actions by H. E. Wilson & Co. against the set forth in the bills of lading, the rate would Illinois Central Railroad Company. Judg- have been 25 per cent. in excess of $62 per car. ments for plaintiff in each case were reversed The defendant also introduced evidence tendby the Court of Civil Appeals, and plaintiff ing to show that there was no rough handling appeals. Judgments of the Court of Civil of the horses. Appeals affirmed, and cause remanded. The court charged the jury as follows:

“There is a contract of shipment in each case, Bacon & Stickley, of Memphis, for H. E.

one clause of which provides that, for the purWilson & Co. Biggs & Evans and C. N. pose of this law suit, the horses shall be conBurch, of Memphis, for Illinois Cent. R. Co. sidered as of value not exceeding $100, so that

the jury, if they should find that injury was NEIL, C. J. The plaintiff shipped two car done to the horses, one or more of them, through

the negligence of the railroad company, the jury loads of horses from Chicago, Ill., to Mem- shall compute the injuries done to the horse or phis, Tenn., at the rate of $62 freight for horses upon the basis that the borse or borses each car. There was a special contract which were worth what the evidence shows them to contained the following stipulation:

have been worth, not, however, to exceed $100

each. If the evidence should show that one “It is further expressly agreed that the value horse which was injured was worth $150, the of the live stock to be transported under this jury should treat that horse as being worth contract does not exceed the following sums: $100. But, if the evidence should show that a Each borse (gelding or mare) or pony,

horse injured was worth $75, the jury should stallion, mule or jack..

$100 00 deal with him as though he were worth $75. Each ox or bull.

50 00 In other words, you must consider the evidence Each cow.

30 00 | as it shows injury to the horses in the light of Each calf or pig.

10 00 | the value shown by the evidence attached to Each sheep....

3 00 | the horses, unless that value exceeds $100; then "And the liability of the railroad company for you will limit the value of the horses to $100 any loss or damage for which it may be re

in computing or estimating the damage that was sponsible shall not exceed the actual cost at done to them by any injury received. the point of shipment, and in no event exceed debate here about whether or not you shall take

Now, you gentlemen have heard the lawyers the above valuation for each animal.”

the Chicago market, or the Memphis market, in The plaintiffs introduced evidence tending arriving at the value of the horses. Witnesses to show the market value of the horses at lave testified what the horses were worth in Memphis, and the damage to each horse based Memphis, and witnesses have testified to what

they were worth in Chicago. The court recalls upon that market value. The defendant ob- that there is very little, if any, difference bejected on the ground that, under the provision tween the witnesses; but, however that may be, of the contract above quoted, the actual cost I instruct you to take the Memphis values as the at the point of shipment would control. This the horse worth in Memphis, and then what

basis of your computation (that iswhat was objection was overruled. No testimony was l injury, if any, was done to him), and in that

way reach your damages, if you find in favor In disposing of the matter the court said: of the plaintiff.”

“The ordinary measure of damages for breach The jury rendered a verdict in favor of of a carrier's obligation to deliver freight is the the plaintiffs for $400 for damages done to livery (Civil Code, $ 3316); but this liability

value of the goods at the time and place of dethe animals in one car and for $250 as dam- may be limited by special contract (Id. & 2174); ages to the animals in the other car.

and here there was a special contract signed by There were two cases, but they were tried point of shipment the measure of damages. It

the plaintiff making the invoice price at the together. From these judgments an appeal is true there was no invoice price actually made was prosecuted by the railway company to out and agreed upon at the time the trees were the Court of Civil Appeals, and that court shipped; but this clause cannot for that reason

be treated as meaningless and inoperative. It reversed the judgments and sent the cases should receive a reasonable construction, and back for a new trial.

the most reasonable construction of which it is [1] In disposing of the matter, the Court susceptible is that by invoice price was meant of Civil Appeals used the following language: the actual value of the trees at the point of

shipment when loaded and ready for transporta"The assignments of error present but one tion." question, and that is the construction and meaning of the valuation clause of the contracts

The shipment consisted of orange trees, under which the animals were shipped, and the billed from a point in Florida to a point in amount for which the railroad company should California. be liable in case of loss or injury for which it was responsible.

We are of the opinion that the market "We are of opinion that, under a proper inter-value at the point of shipment would be pretation of the contracts, the railroad company sufficient evidence of the actual cost at that was liable to the plaintiffs below for damages point, in the absence of evidence showing upon each injured animal for an amount not to exceed the actual cost of the animal at the that the goods were there purchased at less point of shipment, and in no event could the than the market value. plaintiff in error be held liable for damage to The judgment must be reversed in the preseach animal, in excess of the declared valuation of $100. In other words, if the animal cost, at ent case because of error in the charge of the the point of shipment, a sum less than $100, the trial judge in fixing the market value at defendant in error could not recover damage in Memphis as the criterion. It is true he said excess of said sum, and in no event could be in his charge there was no substantial differrecover for each animal an amount in excess of the declared value of $100.

ence between the market value at the two "The measure of damages was not the differ- points, but we do not think it was proper for ence between what the market value of the ani, him to make such a statement to the jury. mals would have been in Memphis, if they had arrived in good condition, and their market The evidence was, as already shown, that value in their injured condition, as he jury there was very little difference between the were told by the trial judge in his istructions, two markets; however, it appears from this but was the amount that each animal had been there was a difference, and whatever it was depreciated in value by reason of the injuries sustained, not in excess of the actual cost of the the defendant was entitled to the benefit animal at the point of shipment, and in no event of it. to exceed the declared valve of $100.

We are of the opinion that the Court of "While it was competent for the defendant in error to introduce proof tending to show the Civil Appeals correctly construed the conmarket value of the animals at the point of des- tract. tination, his recovery could not exceed the in- The result is the judgment of the Court of voice price of the animals at the point of ship: Civil Appeals must be affirmed, and the cause ment, and if the animals cost more, at the point of shipment, than $100, the amount to be re- remanded for a new trial. covered 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 BOAS et al. v. COATS et al. (No. 108.) by such injury, not in excess of the alternative amounts fixed in the contracts, without refer- (Supreme Court of Arkansas. July 13, 1914.) ence to what element of value remained in the 1. STATUTES (8 161*)-REPEAL-IMPLIED REanimals." We concur in the view expressed by the 527), providing that, where improvement dis

Although 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: newspaper is regularly published, notices may be [2] We are of the opinion that the actual published in any newspaper published and have

ing a bona fide circulation in the county, did not cost at the point of shipment was sufficiently expressly repeal the act of January 30, 1913 shown by proving the market value at that (Acts 1913, p. 27), amending Kirby's Dig. $ point. Pierce v. Southern Pacific Co., 120 5685, relating to that subject, yet, being the last Cal. 156, 47 Pac. 874, 52 Pac. 302, 40 L. R. A. expression of the will of the Legislature, it oper

ates as an implied repeal of those statutes. 350.

[Ed. Note.-For other cases, see Statutes, In the case cited the provision of the con- Cent. Dig. 88 230-234; Dec. Dig. 8 161.*] tract was:

2. MUNICIPAL CORPORATIONS (8 408*)-PUB"It is further agreed that the actual invoice LIC IMPROVEMENTS-ORDINANCES-PUBLICAcost at the point of shipment will be taken as TION-STATUTE. measure of damages to govern settlement of Act March 3, 1913 (Acts 1913, p. 527), proany damages for which the carriers may be viding that, where improvement districts are liable."

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

PEAL.

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