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knoxcotn-digest Wednesday, March 21 2001 Volume 01 : Number 133
---------------------------------------------------------------------- Date: Wed, 21 Mar 2001 10:56:54 -0500 From: RMcgi81640@aol.com (by way of "Billie R. McNamara" <knox@tngenweb.org>) Subject: Re: [KnoxCoTN] King v. Elrod Note: Robert's attachment couldn't be sent to the list (we have it set to that to reduce bandwidth requirements). But, I have a copy if anyone's interested... ================================== To all on the List, The court settlement of Chancery Court of Knox County in settlement of King vs Elrod resulted in the total elimation of the cemetery known as Ferguson or Tarwater, destroying nearly forty tombstones and according to accounts by area residents, allowing the blasting of bones over a larger area. The court in its final ruling allowed that the stones should be relocated to other existing cemeteries in the area but made no allowance for the removal of remains. This is just the first of what over the years has led to several descrations of our ancestors remains under the legal guise of the State and local court system. I am attaching a complete copy of this cemetery for any who wish a copy containing as much information as I have been able to garner. Footnote: The Elrod's later built a house on the site, but it was destroyed less then a year later by a mysterious fire> Thank you for allowing me this space, Robert McGinnis ------------------------------ Date: Wed, 21 Mar 2001 10:18:13 -0600 From: Freddie Tilghman <freddiet@network-one.com> Subject: [KnoxCoTN] Lacy/ Lacey I am ordering the 1860 Knox Co census but thought I would just see if someone might have the information at their fingertip. Jacob Lacey married Catherine Boyd in Knox Co, Tn 1833 or 1835. I have the 1850 census information and know that Catherine Lacy is on the 1870 census of Knox Co. Tn. Does anyone have index of 1860 census and is this family listed? Better yet does anyone have the family as listed in the 1860 census? Share with me? Jacob and Catherine Lacy fit all the hand me down information as related to me by my mother and all of her living cousins on their grandfather, Park Lacey/Lacy b about 1855 in Tn. around Knoxville. Thanks in advance. Freddie ------------------------------ Date: Wed, 21 Mar 2001 11:33:07 -0500 (EST) From: Denise May <dcmdesigns@earthlink.net> Subject: [KnoxCoTN] Aunt Mud Raines I'm trying to trace a lady called "Mud" Raines. She lived in Knoxville in the 1920s-40s. My mother remembers visiting her and called her Aunt Mud. The story she remembers is that Aunt Mud was one of the first car owners in Knoxville, but lived in the Lions View area when it was dirt roads. She started out to a city council meeting one day in the rain to ask for better roads and her car got stuck in the mud. She got out and either managed to find help to get the car unstuck or walked the rest of the way to the meeting. Either way, she arrived covered in mud and late. When she asked to address the council she was asked her name and replied, "Just call me Mud." My mother says that she lived with her daughter in the '30s and '40s. She may have been related to her father, Charley Hickey. Does anyone recognize this lady? Denise May dcmdesigns@earthlink.net ------------------------------ Date: Wed, 21 Mar 2001 12:11:06 -0500 From: "Billie R. McNamara" <knox@tngenweb.org> Subject: [KnoxCoTN] Sharp v. Sharp; Sharp v. Kennedy Even though this was in Loudon and Monroe Counties, the Sharp and Kennedy families have close ties to Knox... ================================== J. A. HENRY v. W. F. SHARP. [NO NUMBER IN ORIGINAL] COURT OF APPEALS OF TENNESSEE, EASTERN SECTION 9 Tenn. App. 350; 1928 Tenn. App. LEXIS 243
October 27, 1928, Decided SUBSEQUENT HISTORY: [**1] Petition for Certiorari denied by Supreme Court, February 10, 1929. PRIOR HISTORY: Appeal in Error from Circuit Court, Loudon County; Hon. Oscar Yarnell, Judge, by interchange. Affirmed. OPINION: [*351] PORTRUM, J. Mrs. Mary A. Henry was run down and killed, in front of her home, on May 5, 1927 by an automobile driven by W. F. Sharp. J. A. Henry brings this suit to recover for her death. The jury brought in a verdict of $ 5,000, in favor of the plaintiff, and against the defendant, and an appeal is prosecuted to this court. The principal error assigned is that there is no evidence to support the verdict. Mrs. Henry was attracted to the road by the mail carrier, who had a package to deliver, which was of a dimension that would not enter the mail box, so he blew his horn to attract attention in order that some one would come to receive the mail. The mail box was placed opposite the house [**2] across the road, and the mail carrier had driven up to the box and stopped on the side of the road near the [*352] mail box. Mrs. Henry had crossed the road and received the mail and had started back when the mail carrier called out: "Look out, there comes a car." She turned her head and saw the car and attempted to run across the road to a place of safety, but the car bore down upon her and, in an attempt to avoid her, ran to the left and almost off of the road but since she was running to the left, the car struck her, about mid-ways between the fenders, and ran over her, running the length of the car, or more, before stopping. Mrs. Henry was taken into the house, where she lived for a few hours. Returning to the accident, the physical facts show the automobile struck Mrs. Henry about thirteen feet from the mail carrier's car, and it had skidded twenty-five feet before striking her. Mrs. Henry had a daughter, who was standing on the porch and saw the approaching car and testified it was running from thirty-five to forty miles an hour. It was the theory of the plaintiff that the defendant was guilty of negligence in operating his car at a high and dangerous rate of speed, in [**3] violation of the statute, and he was negligent in losing control of his car at a place where it was his duty to use care in attempting to pass an automobile on the side of the road when a pedestrian was in his right-of-way. The defendant's theory is, that he approached the scene of the accident with his car under control, running at a rate of ten to fifteen miles an hour; he saw the deceased about two hundred feet away; he blew his horn; the deceased looked up and looked away; he came on a piece farther and blew his horn again; the deceased looked up at him and then stepped up near the mail carrier's car (which would be an invitation to him to pass to her left); he came on and just as he got opposite the mail carrier's car she stepped suddenly in front of him, when it was impossible for him to stop his car, and the accident was unavoidable on his part. He denies his car skidded, claiming it was the car of one of the Henrys. If this testimony is true, the accident was an unavoidable accident, brought about without fault or negligence on the part of the defendant. But evidently the jury disbelieved the defendant's testimony and disregarded his theory. Certainly it was contrary to the [**4] theory and the testimony of the plaintiff. It is not for us to say which of the theories is correct. Our only inquiry is whether or not there is evidence to support the plaintiff's theory. The defendant claims that on the plaintiff's theory there is no evidence to support the verdict, because the deceased was guilty of such contributory negligence as to bar plaintiff's recovery. He claims the deceased was in a place of safety and ran out suddenly in a place of danger and notwithstanding he may have been negligent, [*353] still the negligence of the deceased concurred and defeated plaintiff's right of recovery. Ordinarily, a person in a place of safety, dashing out into a place of danger, is guilty of such negligence as would bar that person's right of recovery. But there is an exception, excusing one from such conduct when one is thrown in a place of sudden peril. If the facts in this case show the deceased was thrown in a place of sudden peril, then she is excused from her own negligence, if in fact it was negligence to make an attempt to cross the road and seek a place of safety beyond the main travel way. The plaintiff's proof is that the lady had gotten the mail and had [**5] started back across the road, when the mailman called out: "Look out, there comes a car." She was directly in the wake of the car and when she saw the car she made a dash. The car swerved to the left also and struck her after she gained a place where ordinarily she would have been safe. We think there can be little doubt but that the woman was confronted with a perilous alternative; she must act quickly and decide whether to go on or to turn back, and if she made an unwise decision, it should not be charged to her as negligent conduct barring plaintiff's recovery. "It is well settled by all the authorities that a plaintiff put in a place of sudden peril by the negligent act of the defendant, who, losing his presence of mind, takes the wrong step, and is injured, will not have such step imputed to him as contributory negligence." Chattanooga Electric Railway Company v. Cooper. 109 Tenn. 308, 70 S.W. 72. See also Foust v. State, 80 Tenn. 404; Marble Company v. Black, 89 Tenn. 118, 14 S.W. 479; Railroad v. Pugh, 97 Tenn. 624, 37 S.W. 555; Railroad v. Ridley, 114 Tenn. 727, 86 S.W. 606; Doyle v. Chattanooga, 128 Tenn. 433, 161 S.W. 997. [**6] It was a question for the jury to determine whether or not the deceased was thrown in a place of peril. This the jury has determined in favor of the plaintiff. The testimony that the defendant was operating his car at a rate of thirty-five to forty-five miles an hour was competent and before the jury, and the fact that the car skidded twenty-five feet bears out the theory of the plaintiff and disproves the theory of the defendant, that he was operating his car at a rate of ten to fifteen miles an hour. The statement that he did not skid his car is not borne out by the physical facts, nor the statement of any other witness. There were several people at the scene of the accident immediately after the accident. These witnesses say his car made the skid marks. We are of the opinion there is abundant proof in the record supporting the theory of the plaintiff that the defendant was negligent in operating his car at a high and dangerous rate of speed, in violation of the statute, and he was negligent in attempting to pass the [*354] car with the pedestrian at the side in the road, with his car out of control, and his car was out of control, otherwise he could have turned and passed [**7] between the mail car and the fleeing woman. We have examined the assignment touching the charge of the court. The judge committed no reversible error in saying a driver should occupy the right of the road when meeting traffic or persons on the highway unless there should be circumstances which would justify a reasonably prudent man to do otherwise. The court immediately stated to the jury that the defendant had the right to pass on the left in passing a mail car but he was required to use reasonable care in doing so. The defendant complains because the judge failed to charge fully upon the question of remote contributory negligence. The defendant failed to present a special request, calling the court's attention to the question of remote contributory negligence; in the absence of such request there is no reversible error in the failure of the judge to make the charge. The last assignment of error is that the verdict is so excessive as to evince prejudice, passion, partiality and caprice on the part of the jury. The woman was fifty-seven years old and the mother of several children; she was in good health and the housekeeper in her home. It is quite difficult to determine the value [**8] of a life. Some courts fix one amount and some another. We are confronted with this question quite often and find that juries sometimes fix one amount and then another. We would be glad if there was a standard by which we could arrive at the amount in each case. But there is no such thing. Money has greatly depreciated in value in the last decade, and for this reason cases are not always valuable as precedents. It seems to us that $ 5,000 in this day is not an excessive amount to compensate for the life of a woman fifty-seven years old, in good health. Therefore this assignment of error must be overruled. The judgment of the lower court is affirmed. Snodgrass and Thompson, JJ., concur.
================================== W. F. SHARP v. JIM KENNEDY, et al. [NO NUMBER IN ORIGINAL] COURT OF APPEALS OF TENNESSEE, EASTERN SECTION 13 Tenn. App. 170; 1930 Tenn. App. LEXIS 133
April 12, 1930, Decided
OPINION: [*171] THOMPSON, J. The complainant, Dr. Sharp, filed this bill against J. A. Henry and others to enjoin the levy of an execution issued on a $ 5,000 judgment of the Circuit Court which had been rendered in favor of said Henry and others against Sharp. The ground of the bill was that the judgment had been obtained through fraud. An injunction, as prayed, was issued, but later the Chancellor dissolved the injunction, dismissed complainant's bill, rendered judgment in favor of Henry and others against complainant and the sureties on the injunction bond for the judgment and interest and costs of the law case (including costs of the Circuit Court, Court of Appeals and Supreme Court) and rendered judgment against complainant and the sureties on his cost [**2] bond for the costs of the present cause. The complainant has appealed to this Court and has assigned errors. On May 5, 1927, J. A. Henry, his wife, Mary A. Henry, and their eight children lived on the northwest side of the Niles Ferry Road. Their mail box was on the southeast side of said road. On said date the United States rural mail carrier drove his car to said mail box and blew his horn to indicate to the Henrys that he had a package for them which was too large to be put in their mail box. Mrs. Henry crossed the road to the mail carrier's car and received the package. As she was re-crossing the road on her return trip home, she was struck by Dr. Sharp's car which he was operating along said road. She died within a few hours from the injuries thus sustained. J. A. Henry, for his own use and benefit, and for the use and benefit of his said eight children, instituted a suit in the Circuit Court against Dr. Sharp to recover damages for the unlawful killing of his deceased wife. The jury rendered a verdict in his favor for $ 5,000, and costs. Final judgment was rendered on this verdict and Dr. Sharp appealed to this Court (Court of Appeals) where the judgment of the Circuit Court [**3] was affirmed. Dr. Sharp then filed a petition for certiorari but the same was denied by the Supreme Court. Thereafter an execution was issued and went into the hands of Jim Kennedy, Sheriff of Monroe County, who was about to levy it on the property of Dr. Sharp when he filed the bill in this cause against said Kennedy, J. A. Henry, the eight children, C. E. Wagoner, E. E. Watkins and M. H. Gamble, the last three of whom were attorneys of record for J. A. Henry and in whose favor a lien had been declared on said $ 5,000 recovery. It was alleged in the bill that the principal allegation of negligence contained in the declaration in the law cause was that Dr. Sharp was running at a speed of 45 or 50 miles per hour; that since the affirmance of said judgment in the law cause by the appellate court, complainant, Dr. Sharp, had for the first time been able to [*172] learn facts showing that fraud had been perpetrated upon him by the said J. A. Henry and his children in the obtaining of said judgment; that in the trial of said law cause the one material witness upon the vital issue of the speed of Dr. Sharp was said J. A. Henry who swore positively at said trial that Dr. Sharp was driving [**4] his car at a speed of forty to forty-five miles per hour and that in this false and fraudulent testimony he was supported by certain members of his family who joined with him in a deliberate conspiracy to falsify the facts and to impose liability upon complainant, Dr. Sharp, upon the alleged ground that complainant was driving his car at an unlawful rate of speed at the time and place of said accident. The bill further alleged that after the said J. A. Henry and his children thought that said judgment had become final by its affirmance in the appellate courts they began to talk to friends and neighbors and to admit the falsity of their said testimony; that said J. A. Henry had expressly admitted that he falsified the true facts on the witness stand and that complainant was driving his car at only 10 or 15 miles per hour, and had boasted that notwithstanding said fact he had been able to obtain a judgment against complainant for $ 5,000. It was further alleged that said Henry and his children knew that complainant was not operating his car at an unlawful rate of speed; that they joined in a deliberate fraudulent conspiracy among themselves to offer perjured testimony upon this vital [**5] material issue which was the determinative factor therein, and as a direct and necessary result of said fraudulent testimony they had obtained said judgment; that said facts had been admitted by J. A. Henry since the judgment had been affirmed. It was further alleged that upon the trial of the law cause the only witnesses offered upon this most material issue, the rate of speed which complainant was making, were the complainant and the members of his family and J. A. Henry, and the members of his family, and that complainant and the members of his family testified that complainant was driving at a rate of speed of 12 or 15 miles per hour and that Henry and some of the members of his family testified that complainant was driving at a speed of 40 or 45 miles per hour; that it was therefore of vital importance in the trial of said law cause to obtain the testimony of disinterested witnesses on this material issue; that complainant had made long, careful and diligent search in his efforts to locate such witness who knew the speed of complainant's car but had been unable to locate any such witnesses; that since the affirmance of the case by the appellate courts and since said Henry had [**6] begun to exult over his victory, complainant had learned for the first time that said J. A. Henry had agreed to pay one Joe Smith $ 50 if he would refrain from testifying in said law cause and would keep secret the fact that he was an eye witness [*173] to the rate of speed that complainant was making, which the said Joe Smith represented to have been only 10 or 15 miles per hour; that as a result of said offer by said Henry the said Joe Smith, together with his companion, Orville Turpin, concealed from complainant this vital and necessary testimony which otherwise complainant would have obtained and produced at said trial so that he could have shown by wholly disinterested witnesses the material fact that he was driving at a speed of only 10 or 15 miles per hour, which he could have done but for the fact that defendant, Henry, had promised the payment of said sum of money for the keeping secret of said testimony; and that as a result of said promise to pay said testimony was thus fraudulently concealed from complainant. The bill also alleged that the entire proceeding in the law cause was a preconceived design to impose unjust liability upon complainant through fraud and chicanery; [**7] that said Henry and his family knew that complainant was in no fault or wrongdoing with reference to said accident, and that the said Mary A. Henry had admitted to him before she died that it was all her fault and that complainant was in no way to blame for said accident. The bill further alleged that complainant was a citizen and resident of Monroe County, Tennessee; that said Henry and his family resided in Loudon County, Tennessee; that for the purpose of carrying out their fraudulent conspiracy to impose unjust liability upon complainant they invoked the aid of one J. J. Harrison, who was a citizen and resident of Loudon County, and had him send a false message to complainant that a certain criminal warrant had been issued in Loudon County for the arrest of complainant, charging him with some criminal offense in connection with the death of the said Mary A. Henry; that said Harrison in this way suggested that complainant should come to Loudon County at once and adjust this criminal matter by making bond so as to avoid arrest; that complainant was well aware of the fact that he had been guilty of no criminal misconduct, but not being aware of the fraud and chicanery about to be [**8] practiced upon him, he innocently and voluntarily went into Loudon County for the purpose of doing everything necessary and proper to clear himself of said false criminal charge; that in this manner said Harrison inveigled complainant into coming to his office in Loudon and immediately procured the sheriff of said County to come to his office and serve a civil summons in said law cause upon complainant; that complainant upon investigation found that no criminal warrant had ever been issued for him and that the entire purpose of said Harrison in making said fraudulent conspiracy with said Henry was to get complainant into Loudon County for the purpose of instituting said law cause against him so that [*174] when it came to trial said Henry would get the benefit of a jury drawn from Loudon County who were strangers to complainant. The three attorneys filed an answer admitting that they represented Henry and his children in said law cause, and that a lien on said recovery had been declared in their favor, but denying all of the allegations of fraud. Jim Kennedy, into whose hands the execution had issued, filed an answer admitting that he had the execution and that he would have [**9] levied it upon complainant's property had he not been enjoined from so doing, but denying all the allegations of fraud. Henry and his children filed an answer admitting the rendition of the judgment and the issuance of the execution thereon and alleging that had it not been for the issuance of the injunction the sheriff would have been able to levy said execution on a sufficient amount of complainant's property to have paid said judgment. They denied in detail each and every allegation of fraud and wrongdoing alleged in the bill. They also denied that the trial and adjudication of the law cause turned wholly upon the excessive speed of complainant's car, and alleged that altogether there were nine other acts of negligence upon the part of Dr. Sharp, which proximately contributed to the accident, all of which were set out in the declaration and sustained by the proof. They attached to and made a part of their answer certified copies of the following in the law cause: 1st, the summons, 2nd, the declaration, 3rd, the pleas, 4th, the final judgment, 5th, the bill of exceptions, 6th, the opinion and judgment of the Court of Appeals, 7th, the judgment of the Supreme Court. By an examination [**10] of these certified copies we can see that the adjudication of the law cause did not turn wholly upon the speed of Dr. Sharp and that the testimony of the said Henry as to the speed Dr. Sharp was making was only one of the items of material evidence introduced. Their answer also denied that the Chancery Court had the jurisdiction, right or power to enjoin the levy of the execution and collection of the judgment on the facts alleged in the bill. After the answers were filed the defendants filed a motion "to dissolve the injunction heretofore granted in this cause for the reason there is no equity upon the face of the bill; and further move the Court to dissolve the injunction upon the bill and answers." It should have been stated that in complainant's bill he swore that the statements therein contained were true "to the best of his knowledge, information and belief," and that in the answers of all of the defendants they swore that the statements therein made were "true and correct." At the hearing of the above motion complainant filed affidavits of several persons to the effect that they had heard J. A. Henry state that he did not see Dr. Sharp's car until after the accident was over, [**11] [*175] and that they had also heard J. A. Henry state that before her death, Mary A. Henry had said that the accident was wholly her fault. Complainant also filed an affidavit of several persons tending to show that Dr. Sharp had been lured into Loudon County so that process in the law cause could be served on him as alleged in the bill. Complainant also filed the affidavits of Joe Smith and wife, Ella Smith, to the effect that J. A. Henry soon after the accident told Joe Smith that he would pay him $ 50 not to let Dr. Sharp know what he (Joe Smith) knew about the accident. However, neither of these affidavits state that said Joe Smith accepted said offer or promise of J. A. Henry or acted on it in any way. The affidavits of Joe Smith and his supposed companion, Orville Turpin, read in the light of the evidence introduced in the trial of the law cause and contained in the bill of exceptions, show that they did not see the accident; that they were travelling in the opposite direction from the direction in which the mail carrier and Dr. Sharp who was following him were going; that they first met the mail carrier who had not then even reached the mail box; that they later met Dr. [**12] Sharp who was back of the mail carrier, and that the point where they met Dr. Sharp was at the top of a long hill which he had to go down before reaching a point still a hundred feet from the point of the accident. Therefore their affidavits that when they met Dr. Sharp he was driving only 10 or 15 miles per hour are not worth much to complainant. On the hearing of the motion to dissolve made upon the bill and answers and upon the ground that there was no equity upon the face of the bill, the Chancellor sustained the same, ordered the dissolution of the injunction, dismissed complainant's suit at his cost, and rendered the judgments as hereinbefore stated on the injunction and cost bonds. From this decree the complainant has appealed and has assigned errors as follows: "1. The Chancellor erred in sustaining the motion to dissolve the injunction in this cause. The Chancellor should have overruled said motion and should have continued said injunction in full force and effect, and upon final hearing of said cause should have made said injunction perpetual. "2. The Chancellor erred in dismissing complainant's bill and in rendering judgment against the complainant and the sureties on [**13] his injunction and prosecution bond. The Chancellor should have allowed said cause to go to proof upon the issues made up by the bill and answer, and should have sustained said bill and allowed complainant the relief sought thereby." We think the decree of the Chancellor was correct. [*176] Insofar as the question of complainant's having been tricked into Loudon County for the purpose of service of process in the law cause is concerned, if a fraud was committed on him in that regard he knew it before he pleaded in said law cause. Nevertheless he filed simply a plea of not guilty and defended said cause on its merits. His failure to raise said question in said cause was a waiver of it, Chambers v. Sanford, 154 Tenn. 134, 289 S.W. 533, and we do not think he can now raise such a question in this cause. The only other two propositions upon which complainant seeks to avoid the judgment in the law cause might be condensed to the following: 1st that witnesses for the plaintiff in said law cause testified falsely, as later admitted, and, 2nd, that the plaintiff in said law cause offered to bribe a witness not to tell what he knew. It is clear to our minds that complainant [**14] cannot succeed on the first of these propositions. False swearing is certainly intrinsic fraud upon which complainant cannot attack said judgment. Keith v. Alger, 114 Tenn. 1, 85 S.W. 71. Suppose complainant should win this suit on the testimony of, say, five witnesses, that since the trial of the law cause said J. A. Henry had admitted to them that he testified falsely in said law cause. Then Henry could file a bill to impeach the decree in this cause upon the ground that since the trial thereof said five witnesses had admitted that they had testified falsely herein, etc. There must be an end to litigation, and upon this ground we resolve the first proposition against complainant. Now with reference to the second proposition, i. e., that defendant, Henry, offered to bribe a prospective witness not to tell what he knew. We have hereinbefore shown that the affidavits filed by complainant not only failed to show that said prospective witness accepted said offer of a bribe or in any way acted thereon but did in fact show, when taken in connection with the evidence contained in the bill of exceptions in the law cause which was attached to and made a part of the defendant's [**15] answer, that said prospective witness did not see the accident, that his testimony would have been worth little to the defendant in said law cause and could not likely have changed the result thereof. When we take into consideration that the motion to dissolve the injunction upon the ground that there was no equity upon the face of the bill and was upon the bill, which was only sworn to to the best of complainant's knowledge, information and belief, and upon the answers which were sworn to as being true and correct, we are convinced that the action of the Chancellor in dissolving the injunction was correct and proper. And the injunction being the only relief sought by the bill, the action of the Chancellor in also dismissing the bill and suit at complainant's cost was also correct. Box Company v. Lauderdale County, 144 Tenn. 266, 230 S.W. 963. [*177] It results that in our opinion there was no error in the decree of the Chancellor and the same will be affirmed with costs. Portrum and Snodgrass, JJ., concur. ------------------------------ End of knoxcotn-digest V1 #133 ******************************
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