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(222 S.W.)

W. N. Kay, of Jackson, for appellant. said injury, and was looking to the city 'to do R. F. Spragins and F. W. Pope, both of the right thing by her,' and the said commisJackson, for appellee.

BACHMAN, J. This suit was instituted by Mrs. Maggie Lansden against the city of Jackson to recover for injuries alleged to have been suffered by her on or about the 6th of August, 1917, by reason of the defective condition of one of the sidewalks in said city. A demurrer was filed on behalf of the city on the grounds that no notice of the plaintiff's claim had been served upon the mayor of the city, as required by chapter 55 of the Acts of 1913, and that no facts or circumstances were alleged to show a waiver by the city of the notice provided for. The authority of the city or its officers to waive the provisions of the statute was also challenged. The demurrer was sustained by the trial judge and the suit dismissed. Upon appeal to the Court of Civil Appeals a majority of that court were of opinion that, although notice had not been given, as required by the act referred to, the allegations of the declaration were sufficient to show a waiver on

the part of the city, and the judgment of the circuit court was reversed and the case remanded for hearing.

The allegations of the declaration upon which the action of the Court of Civil Appeals is predicated are as follows:

"Plaintiff further avers that, while no written notice was served upon the mayor of said city of said accident and injury within the time prescribed by the state statute upon this subject, yet she avers that the said city did

receive and have notice of the accident and injury and the circumstances connected with same, on the next day after the said accident and injury, and that written notice as prescribed by statute was made unnecessary and a useless formality, and was waived by the city, by reason of the following facts, to wit:

"On the next day after said accident plaintiff sent for Mr. Z. K. Griffin, who was at that

time one of the commissioners of the city of

Jackson, and informed him of all the facts connected with said accident and injury and as to the manner in which the plaintiff was injured, and thereupon the said commissioner directed the plaintiff to go to a hospital and to have an X-ray examination of her injured parts, and he promised that the defendant city would bear the expense of same; that at the next meeting of the board of commissioners of said city, to wit, on the following day, the said Z. K. Griffin, commissioner, reported the facts in regard to the plaintiff's said injury and his action relative thereto, and of the direction which he had given to the plaintiff, whereupon the other two commissioners, constituting said board, one of which was mayor of said city, approved and ratified the action of said Z. K. Griffin; that on or about December 2 or 3, 1917, plaintiff had another conference with the said commissioner, Z. K. Griffin, in which plaintiff advised the commissioner that she had or was going to leave the hospital where she was being treated; that she had not recovered from

sioner thereupon stated that the city would consider her claim and treat her right in the matter; that again prior to March 4, 1918, plaintiff had another conversation with the said commissioner, in which the latter directed the plaintiff to present her claim to the board of commissioners of the city of Jackson, which she did on March 4, 1918, at which time she discussed her claim at length with the board of commissioners, but they failed to reach ant city thereupon suggested that plaintiff an agreement; that the mayor of the defendmeet the commissioners in conjunction with their attorney, to which plaintiff agreed, and did again appear before said board on April 24, 1918, and her case was again brought up and discussed, and at which meeting the plaintiff was finally informed by the mayor and city demanded by the plaintiff on account of her attorney that the city would not pay the sum said injuries.

"Plaintiff therefore avers that bécause of the foregoing facts, and by leading the plaintiff to believe that her claim would be adjusted by the city without suit, she was thereby misled, and therefore did not seek legal advice as she would have done, but for the negotiation which she had been drawn into through the represenher rights would have been protected by the tation of said mayor and commissioners, and giving of the required notice after being so advised by counsel of the necessity of said notice, and so the defendant city waived the 'written notice as prescribed by statute and is estopped to rely upon the failure to give such written notice as a defense in this case."

Upon these facts it is insisted that the city of Jackson has waived the compliance with the provisions of the act of 1913, and is now estopped to set up as a defense such non-compliance on the part of the plaintiff.

It will be seen that the failure to give the prescribed notice is sought to be excused upon the ground that the city had actual notice through the commissioner Griffin, with whom the plaintiff advised immediately following the injury, that the commissioner di

rected the plaintiff to go to a hospital and have an examination of her injuries made, and that the city would bear the expense thereof, and that upon report of his action to the other commissioners the same was ratified and approved. Whether municipalities, when acting through their governing bodies, are authorized to waive the provisions of protective statutes, is a question upon which there is a conflict of authority; the weight of authority seems to be that they cannot do so. McQuillin, Municipal Corporations, § 2714; Dillon, Municipal Corpora tions (5th Ed.) § 1613; Gay v. Cambridge, 128 Mass. 387; Walters v. Ottowa, 240 Ill. 259, 88 N. E. 651; Lucas v. Pontiac, 142 IN. App. 470; Starling v. Bedford, 94 Iowa, 194, 62 N. W. 674; Huntington v. Calais, 105 Me. 144, 73 Atl. 829; Blumrich v. Highland Park, 131 Mich. 209, 91 N. W. 129; Blair v. Ft. Wayne, 51 Ind. App. 652, 98 N. E. 736.

[1] However, we do not think it necessary The principle there announced was reafto here determine this question, for the rea-firmed in Taylor v. Railroad, 86 Tenn. 249, son that in our opinion the facts disclosed 6 S. W. 400; the court saying: do not constitute a waiver by the city of the benefit of the statute. The purpose of the act of 1913, as pointed out in White V. Nashville, 134 Tenn. 688-695, 185 S. W. 721, Ann. Cas. 1917D, 960, was not to benefit municipal officials, but is for the protection of municipal bodies corporate, and it is also held therein that it is not within the power of individual officers or agents of the municipality to waive the required notice.

Assuming that the governing body of the city of Jackson had authority to waive notice to the city, it has not done so in the instant case; for, in the absence of a proper showing of authority, the acts or declarations of the commissioner Griffin could in no wise be binding upon the municipality.

In Nashville v. Toney, 10 Lea, 643, in passing upon the question of the authority of the mayor of a municipality to revive an indebtedness of the city, barred by the statute of limitations, it was said:

none.

"We have not been referred to any authority, either in the charter, ordinances or resolutions of the city, and can find none, which authorizes or empowers the mayor, by his individual or sole promise, to bind the city for any purpose, and hence we presume there is And as will be seen by the provisions of the above-cited ordinances, he is prohibited from doing so, unless authorized by existing laws, or by order of the city council. It is scarcely deemed necessary to cite authorities to show that without such authority he has no power to do so. In the case of Mayor and City Council of Nashville v. J. G. Fisher et al., decided at Nashville, 1875, unreported, this court, Judge Freeman delivering the opinion, says: 'We hold the principle to be sound, as stated by the Supreme Court of New Jersey, Sachem v. Seymour, 24 N. J. R. 153, that the powers of a municipal corporation can only be exercised by the governing, legislative body of such corporation, in pursuance of authority given from such governing body, in the form of an ordinance, or legislative enactment of such body, or in pursuance of powers granted or conferred in the charter by the Legislature.' See, also, Mayor, etc., v. Hagan, 9 Baxt. 495; Belote v. Wynne, 7 Yerg. 341; Muse v. Donelson, 2 Humph. 166. While we have no doubt but that these promises had the effect to lull the plaintiff into security, and may cause a loss which to her may be serious, yet it is clear that these promises of the mayor were unauthorized and not binding on the defendant, and hence inoperative to pre

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vent the bar of the 'statute. And for this error in the charge of the court and in the admission of testimony as above indicated, we are compelled to reverse the judgment and grant a new trial."

clusive upon the question of the want of au"The doctrine of this case we regard as conthority of" its officers "to bind the city by their declarations or representations. If they could not do so by express agreement, it must logically follow that they could not do so by indirection, such as an estoppel would be."

So, in Cole v. Seattle, 64 Wash. 1, 116 Pac. 257, 34 L. R. A. (N. S.) 1166, Ann. Cas. 1913A, 344, it is said:

"The city council is the only authority which, cognizance of such claims, and it necessarily under the organic law of the city, can take follows that it is the only authority which can waive compliance with the charter. * We therefore hold that a compliance with the reasonable terms of the charter provision cannot be waived by statements or acts of any officer or employé or any other than the city council, and that to establish a waiver by the

council

some affirmative cognizance of the claim, other than the rejection by the council, must be pleaded and proved."

But it is contended that the city ratified and approved the acts of the commissioner and is therefore bound. In answer to this insistence it is to be seen that, according to the allegations of the plaintiff, legal notice of her claim was not presented to the mayor or board of commissioners until about five months after the happening of the accident and nearly two months after the expiration of the ninety days provided by the statute, and action by the city was not taken thereon until a later date.

[2, 3] If it could be held that the allegations are sufficient to constitute a ratification by the city of the acts of the single commissioner, such could extend no further than to the statements made by him to the plaintiff, which in the most liberal view, cannot be construed as a waiver of the city's right under the statute. However this may be, we think that the stability and certainty of the acts of a municipal corporation, particularly in dealing with protective rights granted the corporate body by statute, demand far more than informal action by corporate officials; there must be definite legal action by the proper officials before the municipality can be bound. There may be, of course, cases where fraud or circumstances of imposition would lead to a different conclusion; but the allegations here make no such showing.

The case will be dismissed.

(222 S.W.)

cannot rely on plaintiff's contributory negliFAIRBANKS, MORSE & CO. et al. v. GAM- gence as a defense to liability for injuries caus

BILL.

(Supreme Court of Tennessee. May 18, 1920.)

1. Pleading 110-Plea in abatement waived by disregard of it by all parties.

Where no replication was filed to plea in abatement and no action thereon invoked after it was filed, but it was entirely ignored by the parties and the court, and the case proceeded with on the merits, the plea in abatement was waived.

2. Appeal and error 930 (1)-Evidence of party recovering verdict must be accepted.

The Supreme Court must, after verdict for plaintiff, accept as the established facts in the case the version of the plaintiff as to controverted questions of fact.

3. Negligence 136 (25)-Proximate cause for jury, unless undisputed facts are susceptible of but one inference.

Where the facts are controverted and of such a character that different minds might reasonably draw different conclusions therefrom, the question of proximate cause is for the jury, but when the facts are undisputed and are susceptible of but one inference, the question is one of law for the court, and the same rule applies where an independent intervening cause is relied on by defendant.

4. Negligence 59-"Proximate cause" de

fined.

"Proximate cause" is one of which the injury is a natural and probable consequence, such a consequence as, under the circumstances might and ought to have been foreseen by the wrongdoer.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]

ed thereby.

8. Damages 131(1)-$5,000 for burns on arm and face held excessive by $2,500.

A verdict awarding $5,000 damages for second degree burns on the arms and first degree burns on the face, which caused considerable pain, but which had entirely healed without permanent injury, leaving only small scars, held excessive, and reduced to $2,500.

Certiorari to Court of Civil Appeals.

Action by Charles H. Gambill against Fairbanks, Morse & Co. and another. Judgment for the plaintiff in the circuit court was reversed by the Court of Civil Appeals, and plaintiff brings certiorari. Judgment of Court of Civil Appeals modified, and that of circuit court affirmed on condition that plaintiff accepts a remittitur of part of the amount awarded.

E. T. Seay, Jno. B. Keeble, and F. M. Bass,
all of Nashville, for plaintiff in error.
W. H. Washington, B. D. Shriver, and J. E.
Travis, all of Nashville, for defendants in er-

ror.

HALL, J. An action of damages instituted in the circuit court of Davidson county by the

plaintiff, Charles H. Gambill, against the de

fendants, Fairbanks, Morse & Co. and D. K.

Lee, to recover for personal injuries alleged to have been sustained by the plaintiff as a result of the negligence of the defendants. The trial of the case in the circuit court resulted in verdict and judgment for the plaintiff for $5,000.

Defendants' motion for a new trial having been overruled, an appeal in the nature of a

5. Explosives 7-Proximate cause of injury writ of error was taken by the defendants to held for jury.

Where defendant left with plaintiff a can containing gasoline which he stated did not contain any dangerous or explosive substance, and plaintiff, mistaking the can for an oil can of his own, poured it on kindling to light a fire, from which an explosion resulted, the question whether defendant's wrongful act was a proximate cause of the injury was properly submitted to the jury.

6. Explosives 7 Not contributory negligence in law to use kerosene to kindle fire. It was not contributory negligence as a matter of law for plaintiff to use kerosene to kindle a fire, or to pick up a can of gasoline, left by defendant with the statement that it contained nothing explosive which had been placed where plaintiff ordinarily kept his kerosene can of similar appearance.

7. Negligence 100-Contributory negligence

no defense to wanton misconduct. Statement by defendant that a can containing gasoline contained no dangerous or plosive substance constituted willfulness, wantonness, and recklessness on his part, so that he

ex

the Court of Civil Appeals. That court reversed the judgment of the circuit court, and dismissed the suit upon the ground that there was no evidence to support the verdict and judgment, and that the defendants' motion for a directed verdict, made at the conclusion of all the evidence, should have been sustained by the trial judge. The Court of Civil Appeals also sustained the defendants' assignment of error going to the excessiveness of the verdict, being of the opinion that the verdict of $5,000 was excessive in view of the nature of the plaintiff's injuries. The plaintiff filed his petition in this court for a writ of certiorari, which was granted, and the case is now before this court for review.

The plaintiff's declaration contains one count, and avers that the plaintiff was working as a laborer for the Tennessee Central Railroad Company at the time of sustaining his injuries, and used in his work a certain office in the railroad yards of said company in Nashville, Tenn.; that the defendant D. K. Lee was demonstrating a motor hand car be

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

longing to the defendant Fairbanks, Morse & | at Nashville; that he had an office in the east Co., which hand car was propelled by gasoline; that said Lee, being the agent of the defendant Fairbanks, Morse & Co., and while acting within the general scope of his authority as such agent, brought into the office of the plaintiff a can, such as is commonly used to contain coal oil, without any mark upon it indicating its explosive qualities and asked permission of the plaintiff to store the can in his (plaintiff's) office, assuring plaintiff at the time that it did not contain anything dangerous or explosive, and "negligently impressed plaintiff with the belief that it was coal oil, entirely harmless, and only had the properties of coal oil, and thereby threw plaintiff off his guard, whereas in truth and in fact it was pure gasoline, a highly volatile and dangerous explosive"; that on the day of the accident, to wit, 28th day of December, 1916, plaintiff, mistaking said can for his own can, which contained coal oil, and which was similar to the can left in the office by the defendant Lee, use it to pour some coal oil on the kindling to start the fire in the office stove, a use entirely harmless and without danger for coal oil or any other oil of similar properties, and while doing so plaintiff was in the exercise of ordinary care, but that by reason of the negligence of the defendants, and as a proximate result of being deceived and misled as to the identity, nature, and dangerous and explosive qualities of the contents of said can, it took fire and exploded with terrific force and violence, covering plaintiff with sheets of flames, whereby his body, head, face, nose, hands, arms, and legs were severely burned.

Both defendants filed pleas of not guilty. The defendant Fairbanks, Morse & Co., how ever. first filed a plea in abatement to the jurisdiction of the court upon the ground that it was not in court by proper service of process by reason of the fact that the defendant D. K. Lee, upon whom process was served, was not at the time of the service an officer of the company, but was merely an employé or traveling salesman or solicitor for said defendant company, and was not therefore, such agent or representative as that service of process issued against said defendant could be properly and lawfully executed upon said Lee.

[1] There was no replication filed, or issue joined on said plea in abatement, and no action of the court was in any manner invoked by the defendants upon it after it was filed. So far as the record shows, it was entirely ignored by the parties to the suit and the court, and the case was proceeded with on the merits. This amounted to a waiver of the plea in abatement.

Upon the trial in the circuit court plaintiff testified that during the year 1916 he was in the service of the Tennessee Central Rail

end of what was called the old freighthouse; that the defendant D. K. Lee was engaged in the business of demonstrating motor hand cars for the defendant Fairbanks, Morse & Co., that is, hand cars operated by gasoline power; that in the summer of 1916, the defendant Lee was down in the yards of the Tennessee Central Railroad Company, demonstrating a hand car which he had for sale, and which he desired to sell to the Tennessee Central Railroad Company, and that about noon Lee walked into his (plaintiff's) office with a can of oil of some kind in his hand, and asked him if he would allow him (Lee) to leave it there. Plaintiff says that he asked Lee if there were any gasoline about it, and that Lee replied, "No;" that he asked Lee if there were anything dangerous or explosive about it, and that Lee replied, "No;" that thereupon he (Gambill) told Lee that the company (Tennessee Central Railroad Company) had an oil house up there near the shop, and he could go and leave the oil there, and that Lee replied that it was so far up there he did not care to go. The plaintiff says he then stated to Lee that the track walker had an old shanty at the spur track, and that possibly the track walker would let him leave his oil there; that Lee replied, "No, I will just leave it here," and set it down in one corner of the office. Plaintiff further testified that as Lee started out of the office he (Lee) said if anything happened he would be responsible for it. Plaintiff says that he got the impression from the statements made by Lee that the contents of the can were entirely harmless and not explosive. He says the can was an ordinary coal oil can, and was just like the can he (plaintiff) kept in the office, which contained coal oil. The plaintiff testified that he kept coal oil in the office for the purpose of filling his lanterns, and was also in the habit of kindling fires in the office stove with coal oil; that he would usually put kindling in the office stove and pour a little coal oil on it and stick a lighted match to it, and in this way start the fire; that he had been doing this for a long time, and did not regard it as dangerous to do so. Plaintiff further testified that the can remained in his office until the 28th day of December, 1916, when he went into the office early in the morning between 6 and 6:30 o'clock and put some coal and kindling in the stove, and picked up a can which he thought was his own can containing coal oil, which he had been in the habit of using to start the fire, but by mistake got hold of the can which had been left in the office by the defendant Lee, which contained gasoline, and poured it on the kindling in the stove, and it happened that there were some life coals in the stove, which fact was not known to him, as there had been no fire in the stove since the day before the ac

(222 S.W.)

with terrific force, throwing the burning gasoline and fire on his body, seriously burning him about the hands, arms, and face. He testified that other railroad employés had access to his office, and some one had moved his can from the place where he usually kept it, and placed the can containing the gasoline in its stead the night before the explosion without his knowledge.

Plaintiff's testimony as to the representations made to him by Lee as to the contents of the can at the time he left it in the plaintiff's office is substantially corroborated by the testimony of the witness Monroe Bostick, who testified on behalf of the plaintiff. Bostick says that he was in the office of the plaintiff when Lee brought the can in and asked the plaintiff if he could leave it in the office. Bostick says the plaintiff asked Lee what was in the can, stating to Lee that the company did not allow him to keep any explosives in .the office. Bostick says that Lee told plaintiff that the can did not contain any explosive; that it wouldn't explode.

The defendant Lee testified on behalf of the defendants, and admitted leaving the can of gasoline in the plaintiff's office; testified that the plaintiff was familiar with the contents of the can, and denied that he told the plaintiff that the can did not contain anything explosive. He testiffed that the plaintiff did not ask him as to the contents of the can at the time he left it in his (plaintiff's) office, and that he made no representation whatever to plaintiff as to the contents of said can.

[2] The jury, however, settled this controverted question of fact in favor of the contention of the plaintiff, and this court must therefore accept the version of the plaintiff

as to the circumstances under which the can of gasoline was left in his office by Lee, and the statements made by Lee as to its contents, as the established facts of the case, and must determine the question of the defendants' liability upon them.

It is insisted by the plaintiff that the Court of Civil Appeals erred in sustaining defendants' assignment of error to the effect that the trial court erred in not directing a verdict in favor of defendants upon their motion made at the conclusion of all the evidence, and in dismissing plaintiff's suit.

Upon the other hand, it is insisted by the defendants that the action of the Court of Civil Appeals was correct, because the proof failed to show that the negligence of Lee, if any, in not advising plaintiff of the contents of the can, which was left in his office, was the direct and proximate cause of the plaintiff's injuries, but that his injuries were the direct result of the act of the plaintiff in attempting to kindle a fire in the office stove with the contents of said can.

It is further insisted by the defendants that, even if the defendant Lee were negli gent in not advising the plaintiff of the con

tents of said can, and that such negligence directly and proximately contributed to the plaintiff's injuries, still the plaintiff was also guilty of negligence which directly and proximately contributed to his injuries in attempting to use the contents of said can in building a fire in the office stove in which there were live coals, which contributory negligence, it must be held, barred his right to recover.

[3] The general rule is that what is the proximate cause of an injury is a question for the jury; the court instructing them as to what the law requires to constitute it, and the jury applying the law to the facts. But whether the question is one to be determined by the jury depends on the facts of each case. Thus where the facts of the particular case are controverted, .and are of such a character that different minds might reasonably draw different conclusions therefrom, a question of fact is presented properly determinable by the jury. See opinion in the cases of J. S. Moody and J. M. Horn v. Gulf Refining Co., 218 S. W. 817, decided at the present term of the court; R. C. L. vol. 22, § 31; Teis v. Smuggler Min. Co., 158 Fed. 260, 85 C. C. A. 478, 15 L. R. A. (N. S.) 893; Pilmer v. Boise Traction Co., 14 Idaho, 327, 94 Pac. 432, 15 L. R. A. (N. S.) 254, 125 Am. St. Rep. 161; Stone v. Boston, etc., R. Co., 171 Mass. 536, 51 N. E. 1, 41 L. R. A. 794; Huber v. La Crosse City R. Co., 92 Wis. 636, 66 N. W. 708, 31 L. R. A. 583, 53 Am. St. Rep. 940.

But when the facts are undisputed and are susceptible of but one inference, the question is one of law for the court. Teis v. Smuggler Min. Co., 158 Fed. 260, 85 C. c.

A. 478, 15 L. R. A. (N. S.) 893; Snyder v. Colorado Springs, etc., R. Co., 36 Colo. 288, 85 Pac. 686, 8 L. R. A. (N. S.) 781, 118 Am. St. Rep. 110; Clark v. Wallace, 51 Colo. 437, 118 Pac. 973, Ann. Cas. 1915B, 349, and note; Illinois Central R. Co. v. Siler, 229 Ill. 390, 82 N. E. 392, 15 L. R. A. (N. S.) 819, 11 Ann. Cas. 368; Coy v. Indianapolis Gas Co., 146 Ind. 655, 46 N. E. 17, 36 L. R. A. 535; Missouri Pac. R. Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, 58 L. R. A. 399; Stone v. Boston, etc., R. Co., 171 Mass. 536, 51 N. E. 1, 41 L. R. A. 794; Smith v. Public Service Corp., 78 N. J. Law, 478, 75 Atl. 937, 20 Ann. Cas. 151.

To the same effect is the rule where an independent intervening efficient cause is relied on by the defendant. R. C. L. vol. 22, § 32; Clark v. Wallace, 51 Colo. 437, 118 Pac. 973, Ann. Cas. 1913B, 355 and note.

[4] In determining what is proximate cause, the true rule is that the injury must be the natural and probable consequence of the act-such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act.

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