54 Tenn. 99 (1872)
A historic opinion on the public necessity defense to torts involving trespass to property.
The case involved defendants (several private citizens of Clarksville, Tennessee) who had destroyed all of the liquor in the town (including that belonging to plaintiff) to prevent its consumption by the advancing Union troops. Plaintiff sued the defendants for loss of his property. In their defense, the defendants maintained that the risk of the town’s sacking by intoxicated soldiers presented a public emergency.
The Supreme Court of Tennessee ruled that the jury was properly instructed by the trial court that the defendants’ actions were privileged if the jury found that the circumstances presented an imminent danger to public safety.
Official Headnotes
1. STATEMENT OF CASE.–Upon the fall of Fort Donelson, in February, 1862, a public meeting of the citizens of Clarksville was convened at the Mayor’s office, to concert measures of safety, at which it was resolved to procure the destruction of the liquors in the town before the arrival of the approaching Federal army, for which purpose, afterwards accomplished, a committee was appointed to visit the owners of the liquors, to urge them to consent to their destruction, upon a prospect of subsequent remuneration from special taxation to be levied for the purpose by the authorities of the town and the county. The case was one of a number of actions brought separately by owners of liquors destroyed, against certain of the citizens active upon the occasion.
2. EVIDENCE. A party having a similar case against the defendants being objected to for this reason when called as a witness on behalf of the plaintiff; held to have been competent: that the interest formerly disqualifying a witness was one in the event of the suit, not in the question of the liability of the parties involved.
3. SAME. Combination. The combination to destroy the liquors in the town being first shown, everything said or done by any of the defendants or their agents in the prosecution of the general purpose, was competent evidence to illustrate the motive and intention of each separate act.
Case cited, Cobb v. Johnson, 2 Sneed, 73.
4. NECESSITY. Necessity makes lawful what would else be unlawful, and defends what it compels; but to justify the destruction of the plaintiff’s property upon the occasion in question, a state of facts must have been clearly established, sufficient at least to excite a well-grounded apprehension of imminent peril not otherwise to have been averted.
5. JUDGE. Competency. The presence of the Judge at the public meeting, as a mere passive spectator, did not disqualify him from afterwards sitting in the case.