Kerney v. Aetna Cas. & Sur. Co.

• Decision Date: 17 December 1982
• Citation: 648 S.W.2d 247
• Parties: Pam KERNEY, Plaintiff-Appellant, v. AETNA CASUALTY AND SURETY COMPANY and Bobby Lewis, Defendants-Appellees.
• Court: Tennessee Court of Appeals

Page 247

648 S.W.2d 247

Pam KERNEY, Plaintiff-Appellant, v. AETNA CASUALTY AND SURETY COMPANY and Bobby Lewis Defendants-Appellees.

Court of Appeals of Tennessee Middle Section, at Nashville.

Dec. 17, 1982.

Application for Permission to Appeal

Denied by Supreme Court

March 28, 1983.

John E. Appman, Jamestown, for plaintiff-appellant.

Robert R. Ramsey, Burnett & Ramsey, Jamestown, for defendant-appellee Aetna Cas. & Sur. Co.

H. Marshall Judd, Cookeville, for defendant-appellee Bobby Lewis.

OPINION

LEWIS, Judge.

Plaintiff brought this suit for malicious prosecution against defendants Bobby Lewis (Lewis) and Aetna Casualty and Surety Company (Aetna) following her acquittal by a Putnam County jury on criminal charges of conspiracy under T.C.A. Sec. 39-1106 ¹ (now codified as T.C.A. Sec. 39-1-606, hereinafter referred to by its former designation). At the close of plaintiff's proof the Trial Judge directed a verdict for defendants on the ground that plaintiff had failed to prove "lack of probable cause by affirmative evidence."

That part of the record which is properly before this Court fairly presents the following facts.

On February 16, 1976, at approximately 10:00 P.M., two police officers investigated an alleged breaking and entering at 64 East First Street in Cookeville, Tennessee. Edna and Floyd Mackie, their children, and plaintiff Pam Kerney, Mrs. Mackie's daughter from a prior marriage, lived there in quarters above Mrs. Mackie's business, the Brother and Sister Florist Shop.

The officers recorded the Mackies' report of missing property which included two television sets, furniture, clothing, and part of a collection of antique glass items. Among the missing furniture were three marble-top tables, a love seat, and three chairs.

The police report contained several observations which led the officers to suspect "that someone may be trying to burn the house." First, "there was no sign of forced entry." Second, when one of the police officers commented that it was strange that the thieves had not taken a third television set, Mrs. Mackie replied that it was inoperative. Furthermore, there was "a heavy odor of gas in the house where it had been turned on and left on without burning." Additionally, "Mrs. Mackie seemed very concerned about sleeping in the house" and "insisted they spend the night at a motel." Finally, the officers observed that later in the night someone moved a motorcycle and trailer away from the house to a remote corner of the property.

The next morning plaintiff drove Mrs. Mackie to one doctor in Sparta and, later that same morning, to another doctor in Nashville. Sometime that morning their home caught fire. At this time plaintiff was seventeen years of age. When arrested in August, she was eighteen.

In response to an insurance claim filed by the Mackies, on February 18 a representative of Aetna Interviewed plaintiff about the fire and alleged burglary. That interview reflects no suspicion that plaintiff had committed a crime in regard to the matter in question.

By August of 1976, Aetna had not approved or denied the Mackies' claim, and Mrs. Mackie had long been applying pressure on Aetna's agents, Poteet and Associates Insurance Company (Poteet), in an effort to obtain payment. She ran a newspaper advertisement denouncing an anonymous insurance agency. She contacted a Nashville television station's troubleshooter reporter. She parked in her front yard a mobile neon sign that referred directly to Poteet and the lack of payment on her insurance claim. She asked her friends and customers to boycott the Poteet Agency. Finally, on August 16 she wrote an angry four-page letter to the Poteet agency declaring her intention to pickett their office unless the claim was paid by the first of September.

In August of 1976, Lewis, a private investigator from Goodlettsville, Tennessee, billed Aetna for a long distance telephone call that had been placed from Goodlettsville to Cookeville on August 17, the day after Mrs. Mackie wrote the letter to the Poteet agency. Lewis' billing records show that he charged Aetna for fourteen and a half hours of work for the days August 19 and 20. For August 25-26, he charged Aetna for twenty six and a half hours of work and for a meal bought "for Det. Larry Evitts" on the 26th.

During the course of his four-day investigation, Mr. Lewis was listed as the "arresting officer" of Larry Apple (Apple). The "Arrest Report" reflects that Mr. Apple stated that on February 16 Mrs. Mackie had tried to recruit his aid in burning her shop. Also, "[a] few days later ... Mrs. Mackie and her daughter told him [Apple] that they had burned the house."

On August 26 Jerry Lancaster (Lancaster) gave a statement to the police in which he wrote that "Pam brought love seat, three chairs ... and three marble top tables" to his home sometime in January. The time of this statement was twelve noon.

An "Arrest Report" shows that plaintiff was arrested at 10:00 A.M. on August 26th for "suspicion of arson." At the police station, plaintiff repeatedly professed her innocence and demanded her right to counsel. Although no warrant existed, plaintiff was locked in a cell while her captors went to lunch. Later that afternoon her attorney, Bill Cameron (Cameron), gained her release.

Before going to lunch her jailers threatened plaintiff with additional felony charges in an effort to make her speak before her attorney arrived. At one point in this process, Lewis said, "I think we might as well pop a warrant on her and prosecute her. She's a tough little gal." At another point, he inquired: "Whose idea was it to put that sign up there in front of your place of business?"

Further, bills from Lewis to Aetna show that nine more hours of investigation preceded the September term of the Putnam Grand Jury, which indicated plaintiff for "conspiracy to burn or destroy a certain house ... contrary to the statute T.C.A. Sec. 39-1106 and against the peace and dignity of the state." Mrs. Mackie, Apple, and Lancaster were indicted as co-conspirators. A jury acquitted plaintiff of the charges on September 30, 1977.

Plaintiff, testifying in the instant suit, professed her innocence in regard to any crime. She further declared that during her ordeal on August 26, 1976, Lewis had called her a liar and a whore and stated his intention to put her "under the jail."

Mr. Cameron, the attorney who represented plaintiff at the criminal trial, testified that on August 26, 1976, Lewis had treated plaintiff's arrest as a "big joke." Cameron also testified that as a result of his own investigation, conducted the weekend following plaintiff's arrest, it was his belief that Lewis had employed "threats and abuse" to obtain statements against plaintiff.

The elements and respective burdens in a malicious prosecution case are well settled in Tennessee. A recent, succinct exposition of those elements is found in Landers v. Kroger Co., 539 S.W.2d 130, 131-132 (Tenn.App.1976).

For a plaintiff to be successful in a malicious prosecution case growing out of an arrest for an alleged criminal act, it must be alleged and provide [sic ] that: a criminal proceeding has been instituted by the defendant against the plaintiff; such proceeding terminated in favor of accused; there was an absence of probable cause for the proceeding; and, there was malice or a primary purpose other than that of bringing defender to justice. [Citations omitted.]

Of the four elements enunciated, in the present case probable cause and malice are questioned.

First,

Definitions of probable cause, however differently expressed, all agree in these two essentials: (1) The prosecutor must in good faith have honestly believed the accused was guilty of the crime charged; and (2) his belief must have been reasonable--based on facts and circumstances sufficient to lead an ordinarily prudent person to believe the accused was guilty of the crime charged. The prosecutor must have made the investigation an ordinarily prudent person would have made in the circumstances.

Landers, 539 S.W.2d at 132.

Probable cause is the lynchpin of malicious prosecution.

The statute under which plaintiff was charged, T.C.A. Sec. 39-1106 imposes "a prohibition against organizing, joining or remaining a member of any association or society, bearing any name, or formed upon any pretext whatsoever, which contemplated taking human life, inflicting corporal punishment, or doing the other things enumerated," which enumeration happens to include arson. Trotter v. State, 158 Tenn. 264, 268-269, 12 S.W.2d 951, 952 (1929). Raising common-law misdemeanor conspiracy to a felony for this particular type of conspiracy, the statute has always been limited to members of organizations such as the "White Caps" and the "Night Riders," the apparent precursors of today's "Klu Klux Klan." Trotter, supra; Asbury v. State, 178 Tenn. 43, 154 S.W.2d 794 (1941).

We will, for the purpose of this opinion, assume that Lewis did not believe plaintiff was guilty under T.C.A. Sec. 39-1106 and further assume that he played no role in the drafting of the indictment. For purposes of this appeal, we consider that the intended criminal charge against plaintiff was simple conspiracy under T.C.A. Sec. 39-1101 (now codified as T.C.A. Sec. 39-1-601). Probable cause will be adjudicated according to that statute, the question being: Did Lewis have an honest belief that plaintiff conspired to commit a crime?

The only hard evidence indicating that plaintiff may have conspired to commit a crime is the statement of Larry Apple that "Mrs. Mackie and her daughter told him that they had burned the house." By affirmative evidence, plaintiff has attacked this statement as coerced from Apple by defendant Lewis. We note that Mrs. Mackie had other daughters and one must assume that this reference is to plaintiff to get anything incriminating to her out of Apple's statement.

Additionally, there are several circumstances...