Dunn v. Alabama Oil & Gas Co.
| Decision Date | 30 November 1956 |
| Parties | Odre DUNN v. ALABAMA OIL & GAS CO., Inc., et al. |
| Court | Tennessee Court of Appeals |
W. P. Flatt, W. P. Flatt, Jr., and E. A. Langford, Cookeville, for plaintiff.
Jim Camp, Scott Camp, and Lucius H. Camp, Sparta, for defendants.
This action was brought by Odre Dunn against Alabama Oil & Gas Co., Inc., J. E. McKee, H. E. McKee, and Walter Howell, to recover for expenses and loss of the services and consortium of his wife, alleged to have been caused by defendants' false arrest and malicious prosecution of her upon a charge of felony, passing a bad check in the sum of $600.
A voluntary nonsuit was taken as to defendants H. E. McKee and Walter Howell, and at the close of the evidence for plaintiff the Trial Judge directed a verdict for the other two defendants, Alabama Oil & Gas Co., Inc., and J. E. McKee. Plaintiff's motion for a new trial was overruled, he appealed in error, and insists that the evidence made a case for the jury.
Evidence for plaintiff was that he and his wife, Odell Dunn, had their home at Sparta, Tennessee, she working in a shirt factory there and he temporarily working in Detroit. She owned a home and considerable other property in Sparta, had a savings account in a bank there, and was a person of excellent character and good reputation. The Alabama Oil & Gas Co., Inc., was owned principally by J. E. McKee, its President, and H. E. McKee, its Secretary and Treasurer. It had leased a filling station in Sparta to Walter Howell, who was operating the station.
In May 1954, Howell, hearing that plaintiff desired to find employment in Sparta, began negotiations with Mrs. Dunn and plaintiff to sell plaintiff this filling station. Howell came to their home in Sparta, had a conversation with her, and then a long distance telephone conversation with plaintiff, who was then in Detroit. Howell led Mrs. Dunn to understand that he and her husband had closed the trade for the filling station, and she and plaintiff seem to have taken over its operation.
The Alabama Oil & Gas Co., Inc., the lessor, was supplying gasoline to the filling station on the basis of its lease. On May 18, 1954, it delivered to the filling station gasoline and other supplies and rendered an invoice to 'Odre Dunn' for $621.17. In payment of this, Mrs. Dunn gave J. E. McKee $21.17 in money and her check payable to the Alabama Oil & Gas Company for $600.
This check was dated May 18, 1954, drawn on the First National Bank at Sparta, where Mrs. Dunn had a savings account, and was signed: 'Mrs. Odre Dunn Sav'. Mrs. Dunn thought this check would be paid by the bank from her savings account. But not having the savings book presented, the bank declined payment, and returned the check.
Meanwhile, plaintiff had come to Sparta and a controversy had developed as to whether the trade for the filling station had been consummated. While this matter was not fully developed in the evidence, it does appear that plaintiff and his wife declined to proceed further in the transaction and withdrew from it. J. E. McKee, President of the Alabama Oil & Gas Company, Inc., asked Mrs. Dunn to pay this check and was pressing her for payment. She declined to pay it, since she and her husband considered that they had not bought the filling station and had got nothing of value in the transaction.
So, on May 25, 1954, J. E. McKee went before the Judge of the General Sessions Court at Sparta, made an affidavit charging that Mrs. Dunn was guilty of the offense of passing a bad check, and procured a criminal warrant to be issued for her arrest. J. E. McKee went with the Sheriff to the shirt factory, and the Sheriff there arrested her upon this warrant, and took her before the General Sessions Judge.
She was first taken to his office, later taken before him in the court house, and gave bond to appear before him the next day. She testified that he told her that, by giving this check for $600 which had not been paid, she was guilty of a serious crime, a felony for which she could be sent to the penitentiary; and that it would be best for her to pay the check. She believed these statements, went to the bank with her savings book, withdrew $600, and delivered it to the judge to take up the check.
She withdrew this money and paid the check because of these statements of the General Sessions Judge and also upon the understanding with J. E. McKee that she would not be further prosecuted--'I wouldn't be sent to any penitentiary'. The General Sessions Judge thereupon entered a judgment finding her not guilty of the felony charged against her and discharging her; and that was the end of the prosecution.
As stated, she was a person of excellent character and good reputation and had never before been arrested or accused of any offense. When the Sheriff, accompanied by J. E. McKee, read the criminal warrant to her and arrested her at the shirt factory, she was greatly embarrassed and humiliated, and upon being charged with a felony she was so frightened and terrified at the prospect of being sent to the penitentiary that she became very nervous, emotionally upset, and so sick that she was forced to go to bed and put herself under the care of doctors.
This prosecution against Mrs. Dunn was brought under our statute, 1932 Code sec. 11157; T.C.A. § 39-1904, which is familiar and need not be quoted. It provides in substance that any person who shall, with 'fraudulent intent', obtain money, property, or anything of value, by his check, shall be punishable as for larceny, unless the check is paid 'within ten (10) days after written notice is mailed to' him at his last known address.
No written notice was given Mrs. Dunn under this statute, and, therefore, she could not have been guilty of any offense. Under this statute the elements of the offense are: (1) the issuance of the check, 'with fraudulent intent'; (2) the obtaining of money by it, etc.; (3) the failure of the drawee to pay it after demand made; and (4) failure of the drawer to pay it 'after the written notice' is given him as required by the statute. State v. Crockett, 137 Tenn. 679, 195 S.W. 583; Jones v. State, 197 Tenn. 667, 277 S.W.2d 371.
It is true that J. E. McKee, President of the ...
To continue reading
Request your trial
-
Still by Erlandson v. Baptist Hosp., Inc.
...that "consortium" includes every element of the modern cause of action except the one originally intended. Dunn v. Alabama Oil & Gas Co., 42 Tenn.App. 108, 299 S.W.2d 25 (1956). "Consortium" had come to mean precisely the opposite of what had been The inclusion of these intangibles in the a......
-
Limone v. U.S.
...100 Mich.App. 824, 300 N.W.2d 420 (1980); Zalewski v. Gallagher, 150 N.J.Super. 360, 375 A.2d 1195 (1977); Dunn v. Ala. Oil & Gas Co., Inc., 42 Tenn.App. 108, 299 S.W.2d 25 (1957). Edward Greco clearly has alleged the loss of his father's services. His father was physically removed from the......
-
Spicer v. Thompson, No. M2002-03110-COA-R3-CV (TN 7/7/2004)
...v. Williams, 618 S.W.2d 299, 303 (Tenn. 1981). Malice may also be inferred from motives of the instigator. Dunn v. Alabama Oil and Gas Co., 42 Tenn. App. 108, 299 S.W.2d 25 (1956). Kerney v. Aetna Cas. & Surety Co., 648 S.W.2d 247, 252 (Tenn.Ct.App. The second, third, and fourth counts of t......
-
Browning-Ferris Industries, Inc. v. Lieck
...Mich.App. 824, 300 N.W.2d 420 (1980); Zalewski v. Gallagher, 150 N.J.Super. 360, 375 A.2d 1195 (1977); Dunn v. Alabama Oil & Gas Co., 42 Tenn.App. 108, 299 S.W.2d 25 (Tenn.Ct.App.1956). She does not cite a case from any state's highest court, and we are aware of none. We decline to follow t......