Journal Issue Date: Sept-Oct 2020
Journal Name: Vol. 56 No. 9
This is not the first time that things in Tennessee have been brought to a halt by an epidemic. Nor is it the first time that the Tennessee Supreme Court has given life lessons on what to do during an epidemic, the need to get things in writing, the benefits of making clients pay up front, the deference given to certain institutions, and the difficulties of statutory construction. While today the court is dealing with COVID-19, in the late 1800s, it was dealing with epidemics of yellow fever, smallpox and cholera.
While today the coronavirus has swept around the world with breathtaking speed due to airline travel, the yellow fever epidemic played out almost in slow motion in a world of sailing ships and steamboats. It rolled through North America for more than 200 years with the last outbreak being in New Orleans in 1905. It is thought that the virus jumped from non-human primates to humans in Africa, with the deed possibly being done by mosquitoes, the usual culprit. The slave trade took the virus from Africa to North and South America and it was further propagated by the steamboat trade from New Orleans to points north, including Memphis. Philadelphia, then the nation’s capital, was not spared, with several thousand people, more than 9% of the population, dying. The national government, including President George Washington, fled the city.
In Memphis, possibly the hardest hit place in Tennessee, because of its proximity to the Mississippi River and the attendant mosquitoes, a reported decision of the Tennessee Supreme Court states that the yellow fever scourge visited the city in malignant form in 1879, at which time “all business and commerce were virtually suspended” for some six months with “most of the inhabitants” fleeing the city. The court took the opportunity to give the usual and now-expected deference to any bank that happened to come to court.
Just before the epidemic was declared, a businessman in need of money signed a promissory note to be due 120 days later. When the epidemic hit, the businessman was among those who fled the city. Upon his return, he was sued on the promissory note. The trial court held in his favor, but on appeal, the Supreme Court reversed, finding that the evidence was “sufficient to fix his liability.” The businessman’s defense had been based on a new Act passed by the legislature stating that whenever the health authority for a city announced that an epidemic was so malignant or dangerous that it suspended or seriously interrupted the transaction of business that the holders of indebtedness were excused from making demand while the epidemic prevailed. The Act also allowed an extension of 15 days after the epidemic was officially declared at an end to make demand. Our businessman defended by arguing that the Act was also intended to allow 15 additional days after the epidemic was over in which to pay the indebtedness. Unfortunately for our businessman, the Supreme Court held that the Act did not “bear that construction.” You don’t have to ask for payment during an epidemic, said the court, but you do have to pay, epidemic or no epidemic. The court observed that the Act was simply the re-enactment of the common law rule that excused the non-demand of negotiable paper under like circumstances, provided that demand was made within a reasonable time after the epidemic has terminated, with the exception that the Act fixed the date of the termination of the epidemic which theretofore had been a matter of proof and a “fruitful source of contention.” The Act also designated 15 days as the reasonable time within which the demand might be made, thus eliminating another “fruitful source of contention.”1
In Nashville at about the same time, at least in historical terms, the problem was cholera, the bacterial infection (not a virus) of the gut generally caused by unsafe drinking water or contaminated food. The problem was bad enough that the city passed an ordinance recognizing that the University of Nashville2 had, with “commendable zeal and enterprise,” set up a hospital called St. Vincent’s Hospital in which they proposed to treat all charity patients free of charge. The ordinance further noted that the effort was “eminently deserving of encouragement and assistance” and that the city would pay $1 per day for each charity patient who was treated at the hospital, which would cover the room, board and nursing at the hospital, but not medical attention, which the faculty of the University was to provide gratis. In 1873, when the cholera was prevailing, the mayor and sanitary commission sent a large number of cholera patients to the hospital to be nursed and taken care of. The matron of the hospital did so, furnishing “nurses, bedding, care, boarding, lodging, medicines, brandies, wines, etc., to a large amount and of considerable value.” The problem developed when the city failed to pay, apparently because of scarcity of funds. The matron of the hospital ultimately brought suit and won a jury verdict. But the city appealed, arguing that by the time the matron had filed suit, the statute of limitations had run. The Supreme Court took the opportunity to establish the maxim that you can’t fight city hall.
The evidence showed that the mayor had, at some point in the years between the providing of the nursing care and the bringing of the suit, recognized the matron’s demands for payment as being “valid and subsisting demands against the city” and had promised that they would be paid “as soon as there was money in the city treasury sufficient to do so.” The matron argued that even though the statute of limitations might have otherwise run, the mayor’s recognition of the obligation served to rejuvenate the cause of action and extend the statute of limitation as provided at common law. The city argued that only the city council, not the mayor, had the authority to bind the city.3 According to the city, the mayor’s acknowledgment of the debt was essentially a legal nullity and did not extend the statute of limitations. The Supreme Court agreed, and the verdict was held for naught, even though the court recognized that the mayor’s promises served to “lull the plaintiff into security” and may have caused “a loss which to her may be serious.” Nevertheless, said the court, the promises of the mayor were “unauthorized and not binding on the defendant” and did not operate to prevent the bar of the statute.
Things were much the same in Knoxville, where the problem was smallpox, a virus of unknown origin that dates back to Egyptian mummies. And in Knoxville, just as in Nashville, another health-care provider was to be left unpaid, with the Tennessee Supreme Court again affirming the principle that you can’t fight city hall, while also upholding the legal principle that lawyers in General Sessions Court refer to as Rule 1, that is, make clients pay up front. The year was 1897, and smallpox was, according to the court, “prevailing to a greater or less extent in the city.” The health-care provider in question was a doctor who, in addition to having a private practice, was also the secretary of the municipal board of health, a position that paid a small salary. The doctor believed that he was the only physician in Knoxville who had any experience in the diagnosis and treatment of smallpox. He was, or at least he said that he was, called upon by city officials to render what service he could in suppression of the epidemic. He did so with the result that his private practice was almost totally destroyed owing to the fact that his patients would not employ him on account of his practice among smallpox patients.
The Chancellor found, and the Supreme Court agreed, that there was nothing to show that the city authorities accepted the services of the doctor or that they could have “prevented” his services. The city was not given notice, said the court, that the doctor was rendering the services or that he was relying upon the city for payment. And, said the court, although the doctor said that his duties as secretary of the municipal board of health were merely clerical and that the treatment of smallpox patients was not required by his official duties, the city authorities were “well warranted” in believing that the doctor was treating the smallpox patients in connection with his official position. The doctor also said that he was specially employed to treat some of the smallpox patients by the city physician. But the court noted that the city physician had sued the city for much the same cause of action in the previous term of court and that he had been denied with a holding that he was entitled to no extra compensation beyond his regular salary for his services. At any rate, said the court, the city physician had no authority to employ a doctor to treat smallpox patients or to otherwise incur liability against the city. In conclusion, the court stated that although it “did not doubt that the doctor did render valuable services to the city,” it was constrained to hold the city not to be liable.4
In Chattanooga, as in Memphis, the problem was yellow fever, and again the difficulty was that of giving notice during an epidemic. The court took the opportunity to demonstrate that insurance companies do not get quite the deference that is extended to banks. It seems that at some point in 1878 the Chattanooga Chair and Furniture Factory had taken out a fire insurance policy on its boiler, engine, machinery and tools. The epidemic then hit Chattanooga with such a vengeance that everybody who was able to leave town did so, resulting in the factory being shut down. Eleven days later the factory building was consumed by fire. The insurance company refused to pay, basing its defense on a clause in the policy that provided that the policy would become void if the factory should “cease to be operated” unless they had a “special agreement” with the insurance company. The factory had “ceased to be operated” said the insurance company, and there was no “special agreement,” therefore, the policy had become void. But it turned out that the insurance agent was among those who fled the city to escape the epidemic and that the factory owner had made unsuccessful attempts to find him so as to give him notice that the operation of the factory had ceased and to procure his “special agreement” to continue the policy. The court did not bother with the question of whether the insurance company was available for the purpose of giving notice and seeking consent, but instead decided the case by simple contract interpretation. The question for the Supreme Court was whether under the terms of the policy a merely temporary cessation of the operation of the factory, such as that caused by a yellow fever outbreak, would void the policy, or whether the policy would be voided only by the permanent cessation of the operation. The court undertook its consideration of the question by reference to a few well-chosen examples. If the letter of the contract be alone looked on, said the court, the cessation of work on Sunday, the stoppage of operations to clean the boiler, by an accident to the machinery, or by a strike of the hands, might be held to vitiate the policy. But this was obviously not what was intended by the terms of the policy, said the court. By such an interpretation, the policy might be voided every day when the factory closed for the night or even if there was a smoke-break. Thus, said the court, if a temporary cessation of the operation of the factory by these and other common experiences would not void the policy, it can “scarcely be successfully maintained that a temporary cessation occasioned by the visitation of Providence in the form of a deadly epidemic shall have a greater effect.” The whole of the policy, said the court, showed that the parties contemplated that only a permanent cessation of operations would void the policy.5
The lessons to be learned from these cases seem to be these: If you are dealing with the city, get it in writing, get it early and get it often. And make them pay up front. If you are dealing with an insurance company, get it in writing and be prepared to go to court anyway. If you are dealing with a bank, no law will ever be passed in your favor and the best you can hope for is a fruitful source of contention. And if you are dealing with a virus, stay at home and hope that everybody else does also.
DONALD K. VOWELL received his law degree from the University of Tennessee College of Law in 1978 and has been in practice in Knoxville since that time, now focusing on appellate practice. He has been certified as a Civil Trial Specialist by the National Board of Trial Advocacy since 1997. He grew up in Martin, Tennessee, and graduated from the University of Tennessee at Martin majoring in Political Science and minoring in English.
1. Hanauer v. Anderson, 84 Tenn. 340, 16 Lea 340 (1886).
2. Said to be the predecessor of numerous educational institutions including Montgomery Bell Academy, Vanderbilt University Medical School, Peabody College and the University School of Nashville.
3. City of Nashville v. Toney, 78 Tenn. 643, 10 Lea 643 (1882).
4. Nash v. City of Knoxville, 108 Tenn. 68, 24 Pickle 68 (1901).
5. Poss v. Western Assur. Co.,75 Tenn. 704, 7 Lea 704, 40 Am. Rep. 68 (1881).
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