Jordan v. State ex rel. Williams

• Decision Date: 13 December 1965
• Citation: 217 Tenn. 307,397 S.W.2d 383,21 McCanless 307
• Parties: Hubert Bruce JORDAN, Appellant, v. STATE of Tennessee ex rel. William H. WILLIAMS, County Attorney for Shelby County, Tennessee, Appellee. 21 McCanless 307, 217 Tenn. 307, 397 S.W.2d 383
• Court: Tennessee Supreme Court

Page 383

397 S.W.2d 383

Hubert Bruce JORDAN, Appellant, v. STATE of Tennessee ex rel. William H. WILLIAMS, County

Attorney for Shelby County, Tennessee, Appellee.

21 McCanless 307, 217 Tenn. 307, 397 S.W.2d 383

Supreme Court of Tennessee.

Dec. 13, 1965.

Lucius E. Burch, Jr., Edward G. Grogan and Charles F. Newman, Memphis, for appellant.

William H. Williams and John T. Dunlap, Jr., Memphis, for appellee.

C. W. MILES, III, Special Justice.

This was an action instituted on relation of the appellee, William H. Williams, County Attorney for Shelby County, Tennessee to oust the appellant, Hubert Bruce Jordan, from his office of County Commissioner of Shelby County, Tennessee.

Petition was filed in the Chancery Court of Shelby County on January 6, 1965 praying for the ouster of the said Hubert Bruce Jordan by decree of the Court pursuant to the so-called 'ouster law' as provided by Sections 8-2701 through 8-2726, Tennessee Code Annotated, being Chapter 11 of the Public Acts of 1915, as amended. The petition charged the appellant with having knowingly or willfully misconducted himself in office as a County Commissioner during the years 1963 and 1964 by consistently utilizing over an extended period of time on numerous occasions for his own personal benefit and gain the labor of Penal Farm employees and prisoners, County Road Department employees, Penal Farm automobiles and trucks, Penal Farm supplies, tools, facilities, farm equipment, meats and other items, alleging further that the acts of the appellant were without lawful authority and occurred at his home in Whitehaven, Tennessee and, upon his farm in Hardeman County, Tennessee. Appellant was specifically charged with having county employees and prisoners confined in the Shelby County work house to perform work and labor about his home and his farm located in Hardeman County, Tennessee, of taking a large disc harrow owned by the County to his farm in Hardeman County and returning the same in a damaged condition, of taking four large rolls of used fencing wire owned by the County to his farm, of taking approximately 431 1/2 choice selections of beefsteak, roasts and hams from the Shelby County Penal Farm and of using the Penal Farm repair shop to re-condition a truck purchased by the brother of the appellant.

Appellant filed his answer on January 15, 1965, and substantially admitted most of the acts charged in the original bill, but insisted, among other things, that he did not think that he had acted improperly and claimed his rights as perquisites to said office of County Commissioner. Appellant further claimed that, since taking office, he had worked hard and diligently to obtain certain accomplishments for the County and that, under the circumstances, felt that he had not committed any improprieties and that the acts complained of were trivial and demanded a jury to try the issues of fact. In said answer, appellant included some twenty-one pages of alleged accomplishments while in office, which portion of his answer was stricken on motion of the appellee petitioners, the striking of which is made the subject of one of the assignments of error of the appellant, which will be discussed hereinafter. Appellant, in his answer, also denied that the petitioner was a 'county attorney' or acting within his 'respective jurisdiction,' as those terms are governed by the provisions of Section 8-2702, Tennessee Code Annotated, and alleged that the petitioner was totally without right or authority to institute or maintain an ouster action.

The cause was submitted to a jury on certain issues submitted by the Chancellor and the jury found that the appellant knowingly or willfully had utilized for his own personal benefit or gain the work or labor of Shelby County Penal Farm employees or prisoners and that the appellant knowingly or willfully had utilized for his own benefit or gain property or supplies of Shelby County, such as fencing wire, meats, etc. Whereupon, the Chancellor entered an order ousting appellant from office.

This cause is here on appeal or writ of error prayed by the appellant and appellant assigns some thirty-nine assignments of error. These assignments of error, while quite numerous, can be grouped in the following categories, to wit:

1. Whether there was any material evidence to sustain the judgment of ouster;

2. Whether the Court erred in striking from appellant's answer the twenty-one pages dealing with his alleged accomplishments in office;

3. Whether the Court erred in refusing to permit the production by the appellee of certain statements of witnesses furnished him by the District Attorney General and investigators;

4. Whether the Court erred in overruling the issues of 'fact' for the jury proposed by the appellant and substituting other issues of fact to which appellant objected;

5. Whether the Court erred in failing to dismiss the suit on the ground that the petitioner was not in fact the county attorney of Shelby County within the meaning of the ouster statutes;

6. Whether the Court erred in the admission of certain evidence objected to by the appellant;

7. Whether the Court erred in failing to charge twenty-eight special requests tended by the appellant;

8. And whether the Court erred in answering a certain question put to the Court by the jury after the jury had retired to consider its verdict and before it had rendered its verdict.

The first assignment of error complains that the Chancellor erred in entering a judgment of ouster and not withdrawing the issue from the jury at the conclusion of all of the evidence in the case. This assignment necessarily requires a review of the facts of this case, and the issues submitted to the jury, keeping in mind that, on appeal from a verdict of equity suits tried before a jury, the question on appeal is whether there is any material evidence to support the verdict. Davis v. Mitchell, 27 Tenn.App. 182, 178 S.W.2d 889.

The issues submitted to the jury and their answers were as follows:

I.

Did the defendant, Hubert Bruce Jordan, a Commissioner of Shelby County, knowingly or willfully, during his present tenure in office, utilize for his own personal benefit or gain work or labor of Shelby County penal Farm inmates or prisoners?

Answer 'Yes' or 'No': YES

II.

Did the defendant, Hubert Bruce Jordan, a Commissioner of Shelby County, knowingly or willfully, during his present tenure in office, utilize for his own personal benefit or gain the work or labor of employees of Shelby County?

Answer 'Yes' or 'No': No

III.

Did the defendant, Hubert Bruce Jordan, a Commissioner of Shelby County, knowingly or willfully, during his present tenure in office, utilize for his own personal benefit or gain property or supplies of Shelby County, such as fencing wire or meats?

Answer 'Yes' or 'No': YES

IV.

Did the defendant, Hubert Bruce Jordan, a Commissioner of Shelby County, knowingly or willfully or willfully, during his present tenure in office utilize for his own personal benefit or gain Shelby County Penal Farm equipment or facilities, such as trucks, tools, discs, harrows or other such equipment, automotive repair shops, etc.?

Answer 'Yes' or 'No': NO

As will be seen from the above questions and answers, the jury found that the appellant knowingly or willfully did utilize for his own personal benefit or gain work or labor of Shelby County Penal Farm employees or prisoners and did utilize for his own personal benefit or gain property or supplies of Shelby County, such as fencing wire or meats and the jury further found that the appellant did not knowingly or willfully utilize for his own personal benefit or gain work or labor of the employees of Shelby County or the equipment, facilities, et cetera of the Penal Farm. This being so, we will confine our discussion of the facts largely to whether or not there is material evidence to support the verdict of the jury that the appellant knowingly or willfully utilized for his own personal benefit or gain work or labor of Shelby County Penal Farm inmates or prisoners and property or supplies of Shelby County Penal Farm and whether or not the Chancellor was justified upon these findings in entering a judgment of ouster against the appellant.

Numerous witnesses were introduced by the appellee, all but three of whom were employees of the Shelby County Penal Farm working directly under the appellant, two of whom were fellow commissioners of the appellant and one of whom was a salesman for International Harvester Company. The undisputed evidence in this case is that the appellant is a man 44 years of age, attended college at the University of Tennessee night classes and possesses a law degree from Southern Law University in Memphis, although he apparently has never practiced law nor does he have a license to practice law; that he was elected to the office of County Commissioner in August, 1962, and took office on September 1, 1962, for a 4-year term and, prior to his having assumed the office, he had never been in politics before, had been an insurance agent and claims adjuster and also had worked at the First National Bank in Memphis and also for the Water and Light Department.

According to the evidence, one of the Penal Farm inmates, Eugene Williams, better known as 'Big Al', carried three rolls of wire to the appellant's Hardeman County farm, along with other prisoners, which wire was used wire and, monetarily, worth very little.

On another occasion, an employee of the Road Department of the Penal Farm, one M. E. Wortham, carried Big Al in a Penal Farm truck with a load of seed to appellant's Hardeman County farm, on instructions from the appellant, which seed was unloaded by the prisoner Big Al, along with two prisoners whose fines had been paid by Commissioner Jordan. On this occasion, the prisoner Big Al seeded about one acre of land, which, according to the testimony of the prisoner, took him only five or six minutes. On another trip, the same...