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

In a suit for damages, where plaintiff had

introduced a defendant as witness, plaintiff could not contradict him in material matters in his own defense, by proving he made statements out of court which he denied in court, for, when a litigant tenders a witness to testify in his own behalf, he thereby vouches for his credibility.

17. WITNESSES 380(6) - CROSS-EXAMINA-, inally sued with the others, but he died beTION OF ONE'S OWN WITNESS. fore the trial, and the suit abated as to him. The plaintiff's evidence tends to show that prior to the election of defendants as county commissioners it had been the custom for a number of years in the Shelby county workhouse to work county convicts upon the public roads, and to this end they were placed under a foreman and guards. The foreman and guards, as well as the general supervision of the workhouse, were under a workhouse superintendent. At the time of the death of the deceased, the superintendent was one Strong. For many days prior to dedeceased's death, the defendant Thomas and a guard named Ricks had a number of con19. PLEADING 253-TRAVERSE OF AMEND-victs in their custody and worked them up

18. JUDGMENT 263(6)-MOTION IN ARREST -DEFECT IN DECLARATION-AMENDMENT.

In action for wrongful death, where, on motion in arrest of judgment after overruling of motion for new trial, defendants raised the point that the declaration failed to aver that deceased left next of kin, amendment of the declaration to include such averment was properly permitted.

ED DECLARATION.

Where, after defendants' motion for new trial had been overruled and they had moved in arrest of judgment, the declaration was allowed to be amended to aver that deceased left next of kin, it was error to decline to permit defendants to traverse the amended declaration. 20. DEATH 49(1)—NEXT OF KIN.

Since there must be next of kin before recovery can be had for wrongful death, and the sum recovered inures to the benefit of the next of kin, this is a material part of plaintiff's case, and plaintiff must both aver and prove the existence of next of kin.

on the public roads of the county in what is known as chain gangs. They kept all of the prisoners in their charge shackled by the feet while at work. They habitually applied the vilest names to the prisoners, and habitually administered corporal punishment to them in the most brutal and cruel way. They would strike them with sticks kept for the purpose, and kick them while at work on the road. They provided as a part of their system of control of prisoners a means of corporal punishment that was especially cruel

Appeal from Circuit Court, Shelby Coun- and brutal. They would require prisoners ty; A. B. Pittman, Judge.

Suit by Malachi Johnston, as administrator, against E. H. Hale and others. From a judgment of the Court of Civil Appeals, affirming judgment for plaintiff, defendants appeal. Reversed.

H. J. Livingston, of Memphis, for City of Memphis. R. Lee Bartels, of Memphis, for Shelby County. Sivley & Evans, J. W. Canada, Wilson & Armstrong, and Caruthers Ewing, all of Memphis, for appellants. Bell, Terry & Bell and R. S. Keebler, all of Memphis, for appellee.

LANSDEN, J. This suit was brought by Malachi Johnston, as administrator of the estate of Benjamin Brown, deceased, to recover damages for personal injuries resulting in the death of plaintiff's intestate. The suit was originally against Shelby county, city of Memphis, E. W. Hale, J. B. Duncan, C. W. Thomas, E. E. Strong, the Fidelity & Deposit Company, and the National Surety Company. There were verdict and judgment in the trial court in favor of the plaintiff and against all of the defendants, except E. E. Strong, but in the Court of Civil Appeals the case was dismissed as to the city of Memphis, county of Shelby, the Fidelity & Deposit Company, and the National Surety Company. As the case stands before us, the only defendants are Hale, Duncan, and Thomas. Hale and Duncan are two of the county commissioners of Shelby county, and Thomas is a foreman of the county workhouse in charge of the work house gang. Commissioner McKay was orig

to bend over an anvil and expose their naked persons for the purpose of receiving punishment at the hands of the foreman and guards with the heavy stick. Often punishment would be administered until the victim would fall off of the anvil in a state of exhaustion and collapse. He would then be required to again bend over the anvil and receive additional punishment in the same way. The custom above detailed obtained in the workhouse for many years prior to the election of defendants Duncan and Hale, and was in force at the time of their election and afterwards, until the death of plaintiff's intestate as hereinafter detailed. The treatment of prisoners by the foreman, Thomas, and guard, Ricks, became the subject of general discussion by the public, and, we may add, of general disgust.

The deceased was convicted of vagrancy in the city court of Memphis and fined $5. In default of payment, or proper security, he was sentenced to the workhouse under an arrangement between the city and the county hereinafter referred to. He was delivered to the workhouse authorities and sent out upon the road and assigned to the custody of Thomas and Ricks. While on the road he was so cruelly and inhumanly beaten by Ricks that he fell insensible and was laid upon the roadside. This was between 3 and 4 o'clock in the afternoon. He was permitted to remain on the roadside until the chain gang quit work for the day. About this time defendant Thomas came up to where the deceased was lying and asked Ricks what was the matter

with him. To this Ricks replied that nothing, cooked and prepared for eating three times a was the matter. However, Thomas expressed day when at work," etc. the opinion that Brown had been killed by this beating, and ordered him to be carried to the stockade in a wagon. On the way to the stockade, deceased had convulsions, and, when he arrived there, Thomas ordered the shackles taken from his feet in order to see if he were able to stand up. When this was done, deceased started to fall, but was caught by attending convicts. Thomas remarked to him, with an oath, that he was not as crazy as he pretended to be, and struck him violently with a leather strap. Deceased again went into convulsions and died during the night.

Chapter 237, Acts 1911, gave the county commissioners power to employ such subordinate help as may be necessary in order to properly conduct the affairs of the county, and included the power to employ a workhouse superintendent, foreman, and guards. By section 7391, Thompson's Shannon's Code, it is forbidden that any form of punishment shall be inflicted on workhouse convicts exceeding hard labor, and this court has uniformly construed this section to forbid corporal punishment. Cornell v. State, 6 Lea, 624; Boone v. State, 8 Lea, 739; Peters v. White, 103 Tenn. (19 Pick.) 390, 53 S. W. 726.

The deceased was a prisoner of the city of Memphis. He was assigned to the county workhouse by virtue of a contract executed between the county of Shelby and the city of Memphis. This contract provided that:

"The city shall provide an officer at the county workhouse, whose duty it shall be to receipt for and discharge its prisoners, and to look after their general welfare."

The undertaker, who dressed the body, says that deceased had a large knot on the side of the temple, which could not have been made at one blow, and another knot on his left jaw, one on his head, one on the top of his head, and numerous ones on his arms. He says his arms were beaten into a batter and one finger was broken. This assault on deceased was made July 23, 1912. About two days prior thereto, a white man named GorIt was also provided that no officer or don was beaten to death by these same keeper or assistant keeper should be appointguards, and on June 25, 1912, a convict named by the city without the approval of the ed Bozeman was cruelly beaten by them. superintendent of the county workhouse, and, Later Thomas was indicted and convicted for if at any time he should disapprove them, the assault on Bozeman, and sentenced to a

term in the penitentiary.

they were to be removed by the city.

Other

provisions of the contract relate to the compensation which the county is to make to the city for the use of its convicts and need not be set forth here. It is further provided

that:

"When the prisoners are working for the county and for the city, they shall be fed, clothed, guarded and taken care of in every way by the county."

Other provisions of the contract are immaterial to this inquiry and need not be quot

Defendants Duncan and Hale knew in a general way that the guards at the workhouse had been beating the prisoners for probably 20 years, and knew through the newspapers of the killing of Brown. They knew of the previous beating of Bozeman, and the indictment and conviction of Thomas: but they did not know of this until after the death of Brown. They discharged Ricks upon learning of the killing of Brown, but re-ed here. tained Thomas upon his promise to permit no The negligence averred against the defendother convict to be whipped. Defendants ant commissioners is: (1) That a custom of deny all personal knowledge of the occur- brutally beating and maltreating prisoners rences at the time, but there is evidence to by the foreman and guards obtained at the show that defendant Duncan expressly ap-county workhouse as a part of its discipline proved the policy of corporal punishment of for many years; (2) defendants knew, or by inmates of the workhouse, and defendant the exercise of ordinary care could have Hale admits that he knew, as a matter of general notoriety, that convicts had been beaten by the guards as a part of the workhouse discipline for a great many years prior to the time when defendant took office, January 1, 1912.

The county commissioners succeeded the workhouse commissioners by virtue of chapter 237 of the Acts of 1911, and the duties of the workhouse commission were devolved upon it. The particular duty which the county commissioners owed to the deceased, involved in this case, is that set out in section 7411 of Thompson's Shannon's Code:

known, of this cruel and inhuman custom, and of consequence knew, or could have known, of the killing of deceased; and (3) so knowing, in fact or in law, they took no steps to prevent the death of deceased.

Many defenses have been interposed by learned counsel, too numerous to be treated of separately in an opinion. The main defenses are: (1) That the commissioners are public officials, and as such are not liable for the wrongful acts of subordinates appointed under legal authority, unless the wrongful act is directed by, or the officer is guilty of negligence in the performance of a ministerial duty which directly and proximately "To see that the prisoners are properly brought about the injury; (2) that actual guarded to prevent escape; that they are kindly and humanely treated, and properly pro- knowledge of the treatment which deceased vided with clothing, wholesome food properly underwent, followed by mere inactivity on

The real questions which we consider determinative of the liability of defendants Duncan and Hale are whether the duties imposed upon them to see that the prisoners in the county workhouse are kindly and humanely treated are: (1) Ministerial, (2) are they owed to deceased in particular, rather than to the public generally? and (3) was their violation by them the proximate cause of his injury and death?

the part of defendants, did not make them, and the guard, Ricks. It is useless to review liable for the murder of deceased committed the many authorities cited to sustain this away from camp, and as a result of an un- contention, because we do not understand provoked assault with a "deadly weapon"; that the point is controverted. Lunsford v. (3) that there is no liability against defend- Johnston, 132 Tenn. 615, 179 S. W. 151. ants, because the duty with which they are charged was to the public generally, rather than to deceased; (4) the negligence complained of consists in nonfeasance merely, for which a public officer is not liable, or the misfeasance of the officer's servant or agent, for which he is also not liable; (5) that the duties which defendants owed to the deceased were not ministerial, because the method and manner of discharging the duty was left to defendants; and (6) de- [4, 5] If it be considered that the statufendants issued instructions to the foreman tory duty was cast upon defendants to see and guards in the workhouse not to whip that deceased was kindly and humanely prisoners, and the defendant Duncan, who treated, the fact that they knew nothing of was specially charged with the duty, fre- his mistreatment and did not participate in quently visited the workhouse and ascertain- it could not excuse them, if the cruelties aded none of the facts with which he is charged. ministered to him as a part of the discipline For defendant Hale, in addition to the de- of the workhouse were attended with such fenses above set out, it is urged that defend- circumstances as to warrant the jury in ant Duncan was the county workhouse com- finding that their failure to know and to act missioner and had charge of the workhouse, in the premises was the result of willfulness and, if any liability exists against either, and malice. The malice required need not be it is against him, and not defendant Hale. express ill will toward deceased, or a conscious disregard of his welfare, but a promiscuous disregard of the interest and welfare of the inmates of the workhouse would be sufficient-that disregard of public duty which results from general recklessness, as well as express ill will. However, it is well settled in this jurisdiction that a common-law action may be maintained against a public [2] Nor is the contention of defendant Hale official for misfeasance or nonfeasance in to the effect that defendant Duncan, being discharge of ministerial duties, if the elecommissioner of the workhouse and public ments of willfulness and malice are presroads, and having special supervision of ent. Boyd v. Ferris, 10 Humph. 410; State this department, was solely liable to the ex- v. McClellan, 113 Tenn. 621, 85 S. W. 267, clusion of Hale, well taken. Chapter 237, 3 Ann. Cas. 992; Gamble v. Vanderbilt UniPrivate Acts 1911, creating the board of versity, 138 Tenn. 616,,200 S. W. 510. commissioners for Shelby county, expressly confers all of the powers concerning the county business upon the board of commissioners. It refers to the board in many of its sections, and in each instance it confers upon the board the power to act. It is true that it divides the public business into three departments, and requires the board to assign a commissioner to each department; but it nowhere confers upon the commissioner in charge of the particular department power to act for the board in that department. It confers all powers upon the board as a board, and requires it to meet at regular intervals and pass in review before the entire board the business of each department. It would be impossible to say that the commissioner in charge of any of the departments had exclusive responsibility of that department.

[1] We have no difficulty in holding that the contract between the city and county made the deceased a prisoner of the county workhouse, under the exclusive charge of - defendants and the county employés. The contention that deceased was a prisoner of the city of Memphis, and in its custody, is not well made.

[3] We readily assent to the contention made for defendants that the rule of respondeat superior does not apply as between

In State v. McClellan, supra, it was said that:

"Nonfeasance is the omission of an act which a person ought to do; misfeasance is the improper doing of an act which a person might lawfully do; and malfeasance is the doing of an act which a person ought not to do at all.”

It was said that the rule included: "Nonfeasance, or neglect, or refusal, without sufficient excuse, to perform an act which it was the officer's legal duty to the individual injured to perform; misfeasance or negligence, which ** is a failure to use, in the performance of a duty owing to the individual, that degree of care, skill, and diligence which the circumstances of the case reasonably demand; malfeasance, or the doing, either through ignorance, inattention, or malice, of that which the officer had no legal right to do at all, as where he acts without any authority whatever, or exceeds, ignores, or abuses his powers. Bell v. Josselyn, 3 Gray, 309, 63 Am. Dec. 741."

See Olmsted v. Dennis, 77 N. Y. 378; Clark v. Miller, 54 N. Y. 528; Keith v. Howard, 24 Pick. (Mass.) 292; Amy v. Supervisor, 11 Wall. 136, 20 L. Ed. 101.

to the effect that public officials, who owe the performance of a ministerial duty to a particular individual, are liable to one injured as the proximate result of their nonfeasance or misfeasance in the performance of such duty. Where the duty is absolute, certain, and imperative, and is simply ministerial, the officer is liable in damages to any one specially injured, either by his omitting to perform the task or by performing it negligently or unskillfully. On the other hand, where his powers are discretionary, and to be exerted or withheld according to his own judgment, he is not liable to any private person for a neglect to exercise those powers, nor for the consequences of a willful exercise of them, where no corrpution or malice can be imputed to him, and he keeps within the scope of his authority. Some of the cases refer to án officer possessing such discretionary powers as a judicial or quasi officer. But this rule goes no further than to relieve public officials of liability for nonfeasance and for the misfeasance of their servants or agents. Moynihan v. Todd, 188 Mass. 301, 74 N. E. 367, 108 Am. St. Rep. 473; Smith v. Zimmer, 45 Mont. 282, 125 Pac. 420; Shearman & Redfield on Neg. (3d Ed.) § 156; Doeg v. Cook, 126 Cal. 213, 58 Pac. 707, 77 Am. St. Rep. 171; Tholkes v. Decock, 125 Minn. 507, 147 N. W. 648, 52 L. R. A. (N. S.) 142, and notes.

[8] Under these authorities, we consider it wholly immaterial whether it be considered that the negligence of defendants Hale and Duncan was misfeasance or nonfeasance. They had entered upon the discharge of their duties as county commissioners, and they owed an active duty, both to the public and to the inmates of the county workhouse, to see that the statutory mandate was carried out. Inaction would none the less be a misfeasance because they had assumed the discharge of the statutory duty, and failure to perform a positive duty is positive wrong. If one to whom the duty is individually owed suffers an injury as the proximate result of the failure to perform it, no reason can be perceived why the defaulting official should not be liable in damages. Gamble v. Vanderbilt, supra. The case last cited was a case of trustees of a public charity, but we apprehend that the principle involved is not different from that involved in this case.

judgment and discretion in working out the details by which the obligation which it im poses upon the commissioners is to be discharged, but nevertheless it is a plain and manifest duty, the doing or failure to do which is not within the discretion of defendants. It is positive, absolute, and mandatory. The commissioners cannot cast it off by willful neglect, or by a delegation of their duties to others. The humanity of the law would be greatly impaired if it should be held that such a duty is discretionary with the defendants. We would be slow to give the statute a construction which would justify the commissioners in exercising their discretion in so serious a matter as the one under consideration. Nothing but the plainest mandates of the statute would be sufficient justification for doing so.

[10] It is also suggested that the statutory duty under discussion is a public one, owed to the public generally, and not to any particular individual. We think it is both. It is owed to the public generally, because the public is interested in the humane administration of the law, and the results which a proper administration of its penal institutions are hoped to accomplish. But this does not mear that the duty imposed upon the commission ers is a discretionary one, which they can perform or not, as their judgment may dic. tate, toward a particular inmate of the work house. Such inmates are held in involuntary servitude, and cannot flee the cruelty which the guards may see proper to inflict upon them, and in this case the duty to prevent such punishment was tragically personal to deceased.

[11-13] From what has been said, it nat urally follows that the failure of defendants to discharge their duties in the premises war the proximate cause of the punishment in. flicted upon deceased. If they had been dili, gent to see that corporal punishment was not practiced as a part of the discipline of the workhouse, it is apparent that deceased would not have been killed in the manner in which he was. This is different from the case of an outbreak of temper upon the part of a guard, followed by a blow which takes the life of an inmate. For this we apprehend defendants would not be liable. But the case made by plaintiff, both in the declara[9] Is the duty of defendants, as county tion and in the proof, is that corporal punishcommissioners, to see that the inmates of the ment was a part of the system of discipline county workhouse are kindly and humanely of the workhouse, and was constantly practreated, a ministerial one? We think that it ticed in the most brutal ways for many years, is. This court has refused in more than one and that defendants knew, or by the exercise instance to lay down a hard and fast rule by of ordinary care could have known, of its which to determine whether a statutory duty existence. The fact that defendants did not is ministerial. It was held that the duty of know, as a matter of fact, that this form of the county court to take a guardian's bond discipline was constantly in vogue in the with good and sufficient surety was a minis- workhouse, does not meet the case made by terial duty although it is apparent that dis- the plaintiff. They must go further, and cretion is involved in determining the sol- show that they have exercised ordinary care vency of the surety. Boyd v. Ferris, supra. to see that plaintiff's intestate was kindly The statute under consideration may involve and humanely treated, and, of course, wheth