Brown v. Dunstan
| Decision Date | 14 November 1966 |
| Citation | 23 McCanless 291,219 Tenn. 291,409 S.W.2d 365 |
| Parties | , 219 Tenn. 291 Scott N. BROWN, Plaintiff in Error, v. William DUNSTAN, and Guaranty Mortgage Company, Defendants in Error. |
| Court | Tennessee Supreme Court |
H. H. Gearinger, Chattanooga, of counsel, Gearinger & Vineyard, Chattanooga, for Scott N. Brown.
John T. Fort, Chattanooga, for William Dunstan and Guaranty Mortgage Co.
The plaintiff in error, Scott N. Brown, appeals from the action of the trial judge in sustaining a demurrer to his declaration and dismissing the suit. In this opinion the parties will be referred to as in the trial court.
The declaration alleges defendants entered into a conspiracy to defraud and discredit him and to oust him from his position with First Trust Company and deliver First Trust Company to the defendant Guaranty Mortgage Company. Certain overt acts are alleged in accomplishing such and as a direct and proximate result plaintiff suffered damages of $750,000.00 in that: (1) he was and still is imprisoned for alleged wrongful acts, thereby depriving him of an opportunity to earn a living; (2) that he suffered the loss of his renumerative positions in First Trust Company; (3) the loss of approximately 70% Of the stock of First Trust Company valued then at approximately $1,000,000.00; (4) and further loss of income otherwise than from First Trust Company; (5) that as a result of the wrongs of the defendants as charged, he, the plaintiff has wrongfully been reduced from his former position of wealth and position in the business and civic community of Chattanooga, Tennessee and the United States, all to the destruction and loss of the plaintiff's property, and all of which chain of actions had its origin in the conspiratorial acts of the defendants, which continue to date, through and by which he has been reduced from a position of wealth and earning power to one of abject pauperism, imprisoned falsely, and otherwise prevented now and for the remainder of his life, from gaining material wealth or earning a living.
The wrongs alleged in the declaration occurred on or about 3 April 1962. This suit was commenced by summons on 16 September 1963. The fact this action was not commenced within one year after the action accrued, as required by T.C.A. § 28--304, presents the issue in this case.
The trial judge sustained the 12th ground of the demurrer and dismissed the cause upon finding the declaration stated a cause of action 'for injuries to the person' as this phrase is used in T.C.A. § 28--304. The trial judge in a memorandum opinion stated:
As to the 12th ground of the demurrer, as stated, the Court has carefully read the declaration and the Court is of the opinion that the last part of this suit is for 'injuries to the person'. While it may be argued that the predominant part of the declaration deals with property losses rather than personal injuries, it is difficult for this Court to state that the entire declaration as a whole does not, in fact, substantially allege some injuries to the person. The injuries to the person may become a more valuable right than injuries to the property; and after considering the declaration as a whole, the Court believes that the demurrer to the declaration should be sustained.
The trial judge cited the case of Bland v. Smith, 197 Tenn. 683, 277 S.W.2d 377, 49 A.L.R.2d 1212 (1955). The Bland case holds in determining the real purpose of a suit the court must...
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