Huckeby v. Spangler
| Citation | 521 S.W.2d 568 |
| Parties | Preston HUCKEBY, Appellant, v. Benton F. SPANGLER et al., Appellees. Bill Wayne POMEROY, Appellant, v. Benton F. SPANGLER et al., Appellees. |
| Decision Date | 24 March 1975 |
| Court | Supreme Court of Tennessee |
James W. Gentry, Jr., Chattanooga, Charles D. Haston, McMinnville, for appellants.
John C. Curtis, Clarence E. Shattuck, Jr., H. E. Brown, Jerry H. Summers, S. Del Fuston, F. I. Breazeale, Chattanooga, for appellees.
Although these suits were instituted by separate complaints, they were disposed of in the trial court by a single order, and we have considered them together for purposes of this appeal. The complaints in the actions are similar, but because of one material difference in the two complaints, we will discuss them separately.
Appellant Huckeby instituted his action for damages against appellee Benton F. Spangler and twenty-two other named defendants on September 5, 1973. He attempted to sue all of the defendants individually and as members of an unnamed class of persons pursuant to Rule 23 of the Tennessee Rules of Civil Procedure. The trial court held, however, that the action could not proceed as a class action, and on this appeal appellant has conceded the correctness of the action of the trial court, so that the class action aspect of this case and of the companion case need not be considered further. Indeed appellants did not assign as error the action of the trial court in dismissing the suits insofar as the class action aspects of them were concerned.
In his complaint, appellant Huckeby alleges that he was an employee of the Tennessee Bureau of Investigation and in that capacity on September 11, 1972 was ordered by his superiors to report to the Chattanooga area to perform official duties. On September 12, 1972 he was directed by his superior officers to participate in a gambling raid on the Big Rock Motel and Club, which is alleged to be a place 'wherein gaming and/or professional gambling was being carried on.'
The complaint alleges that the plaintiff and his fellow officers arrived at this establishment in the early morning hours of September 13, 1972. The complaint charges that the defendants '. . . who had a common purpose and objective, were engaged in an unlawful common enterprise which was the furtherance of gaming and/or professional gambling.' The complaint further alleges that the defendants had conspired to violate the gambling laws of the state and charges that when the plaintiff arrived, all of the defendants were located in a single room of the establishment 'for the sole purpose of gambling, an unlawful objective.' The complaint then names three persons who are alleged to be 'co-conspirators but not co-defendants' but there is no allegation as to whether these persons were the owners or operators of the establishment, or as to what their capacity was.
The complaint alleges that the plaintiff and the other officers had been ordered to the premises to execute a search warrant, to seek evidence of violation of certain of the state gambling laws, which are referred to in the complaint, T.C.A. § 39--2001 et seq.
It is alleged that plaintiff and his fellow officers rang the doorbell and identified themselves as agents of the Tennessee Bureau of Investigation when someone opened the door. It is then alleged that a scuffle broke out at the bottom of the stairwell, that plaintiff and other officers ran to a second door at the top of some stairs in orders to gain entrance into the club. It is alleged that the other officers accompanying the plaintiff at this time were local police officers and highway patrolmen, all of whom identified themselves to persons inside the club and announced that they had a search warrant. It is alleged that two highway patrolmen were in full uniform at the top of the steps.
The complaint alleges that plaintiff and his fellow officers were visible from within the club and that the defendant Richie, who was employed by the three 'co-conspirators' was sued in the action, fired a shot which struck the plaintiff in the right side of the face, causing him severe personal injury. The complaint alleges that Richie had been employed by the three persons who were not defendants in the action 'to protect the defendants in their unlawful, common enterprise' and that he fired the shot in that capacity.
The complaint expressly charges that Richie and any other persons who fired upon the officers acted out of malice and without legal or just cause. It is finally alleged that Richie, who fired the shot and injured the plaintiff Huckeby, 'was engaged in an unlawful, common enterprise with the rest of the defendants . . . named above and that Richie was to protect the other co-defendants from interference in their unlawful acts and therefore all of those defendants engaged in said unlawful, common enterprises are jointly and severally liable to the plaintiff for compensatory as well as punitive or exemplary damages.'
The only responsive pleading filed to this complaint by any of the twenty-three defendants was a motion to dismiss the suit insofar as the plaintiff sought to maintain it under Rule 23 as a class action. Each of the numerous motions appearing in the file are styled Motion Under Rule 23.03(1), and although filed by different counsel, the motions are substantially identical in their terms.
Apparently there was a hearing on these motions in the trial court, and there are contained in the technical record two drafts of orders, approved by some or all of the attorneys in the case, purporting to dismiss the action as a class action and allowing the defendants additional time within which to plead further. Neither of these orders, however, is signed by the trial judge. The only order signed by him which bears upon the issue states that the court had considered all motions and briefs and had
The court accordingly concluded that the suits could not proceed as class actions, and he further ordered the suits dismissed in their entirety unless the plaintiffs should amend their complaints 'and designate a conspiracy and overt act by particular defendants . . .' Plaintiffs were allowed twenty days from the entry of this order within which to so amend; otherwise the suits were ordered to be dismissed.
Plaintiffs did not amend either complaint, but excepted to the ruling of the trial court and appealed here.
It is apparent from the foregoing that the trial court was mistaken insofar as the complaint of Huckeby is concerned. This complaint definitely charged that the defendant Richie shot the plaintiff, and said defendant is identified clearly and by name. Certainly a cause of action was stated as to him.
The complaint of Pomeroy is essentially similar to that of Huckeby, except that Pomeroy was a member of the Chattanooga Police Department, and in his complaint he did not identify the person who fired a shot which allegedly wounded him. He does charge that when plaintiff Huckeby fell from being wounded, Pomeroy was in his path and from the impact fell down a flight of stairs with resulting injury. In all other material particulars, that complaint follows the language and allegations of the Huckeby complaint.
The trial court erred in dismissing the complaint of Huckeby as to the defendant Richie, this error apparently being an inadvertent one on the part of the trial judge in treating the two complaints as identical, and in disposing of them in a single order.
In this Court each of the plaintiffs assigns as error the action of the trial court in dismissing his suit in its entirety, and upon the court's own motion.
On behalf of appellants it is insisted that the trial court had no authority, under the Tennessee Rules of Civil Procedure, to dismiss the complaints Sua sponte and in the absence of a motion to dismiss filed pursuant to Rule 12. Although there is a split of authority on this subject, we are of the opinion that the trial court does have such authority, and that when he is of the opinion that the complaint fails to state a claim upon which relief may be granted, he may dismiss it, although such practice is not to be encouraged. In considering such action, the court should construe the complaint liberally in favor of the plaintiff, taking all of the allegations of fact therein as true. Any such dismissal by the trial court, like a dismissal under Rule 12, is subject to scrutiny on appeal. Williamson County v. Twin Lawn Development Company, Inc., 498 S.W.2d 317 (Tenn.1973).
The principal question presented, therefore, is whether these complaints state a cause of action under applicable principles of Tennessee law.
There is no question but that the Tennessee statutes against gaming are quite broad in their terms, and they have been deemed by this Court in previous cases to declare a strong public policy of the state. 1
It is provided in T.C.A. § 39--2001 that:
'If any person play at any game of hazard or address for money or other valuable thing, or make any bet or wager for money or other valuable thing, he is guilty of a misdemeanor.'
In the following code section it is made a misdemeanor for any person to 'encourage or promote, aid or assist, the playing at any game, or the making of any bet or wager, for money or other valuable thing', or to keep or exhibit any sort of gambling device. Separate offenses are provided for the keeping of a gambling...
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