Lackey v. Metropolitan Life Ins. Co.

• Decision Date: 19 May 1947
• Citation: 206 S.W.2d 806,30 Tenn.App. 390
• Parties: LACKEY v. METROPOLITAN LIFE INS. CO.
• Court: Tennessee Court of Appeals

206 S.W.2d 806

30 Tenn.App. 390

LACKEY v. METROPOLITAN LIFE INS. CO.

Court of Appeals of Tennessee, Middle Section.

May 19, 1947

Certiorari Denied by Supreme Court December 8, 1947.

Appeal in Error from Circuit Court, Davidson County; Wallace J Smith, Judge.

Action by Joseph L. Lackey against Metropolitan Life Insurance Company for damages for conspiring with its representatives to slander plaintiff, to have him disbarred, and to destroy his business, reputation and character, and for various overt acts committed in carrying out the conspiracy. From a judgment for defendant entered upon an order granting defendant's motion to set aside an order of mistrial, to grant a new trial, to direct a verdict for defendant and to dismiss plaintiff's suit, plaintiff appeals in error.

Reversed and remanded for new trial.

Jay G. Stephenson, Hilldrop & Mayfield and Jay C. Evans, all of Nashville, for plaintiff.

John J Hooker and Moore & Ewing, all of Nashville, for defendant.

FELTS Judge.

Mr Joseph L. Lackey, a member of the Nashville Bar, sued the Metropolitan Life Insurance Company for $100,000 damages for conspiring with its representatives to slander him, to have him disbarred, and to destroy his business, reputation, and character; and for a 'campaign' of overt acts continued over two and one-half years in carrying out the conspiracy.

This suit was brought and the declaration filed December 10, 1940. Defendant demurred because the slanderous words were not stated with enough particularity, the conduct charged was not sufficiently specified, and the slanderous words by defendant's attorney were privileged. The trial judge sustained the demurrer and ordered the suit to be dismissed unless plaintiff amended or supplemented his declaration so as to state a cause of action within 30 days.

On December 6, 1941, within the 30 days allowed, plaintiff filed an amendment and supplement containing twenty-eight counts averring numerous slanders and other acts done to carry the conspiracy into effect. Defendant again demurred, insisting that the amended and supplemental declaration constituted a new suit upon twenty-eight separate and distinct new causes of action of slander, all of which were barred because such slanders had been uttered more than six months before the filing of the amended and supplemental declaration. The trial judge sustained the demurrer and dismissed plaintiff's suit.

The Supreme Court reversed this judgment of dismissal and remanded the cause. In its opinion by Mr. Justice DeHaven, filed January 9, 1943, unreported, the Court held: 'The gravamen of the declaration was the conspiring of defendant with its representatives and others to destroy plaintiff in his profession, character and reputation'; that this action for conspiracy was not converted into an action of slander by the filing of the amended and supplemental declaration; and that such declaration was no departure from the original cause sued on, did not constitute a new suit involving twenty-eight separate and distinct new causes of action of slander, but was a specification of slanders and other acts done to effectuate the conspiracy.

Upon the remand defendant pleaded 'not guilty,' but was permitted to withdraw this plea and file another demurrer, which was overruled. Plaintiff was allowed to amend by alleging the object of the conspiracy was 'to defame, injure and destroy plaintiff's good name, character, reputation, and standing both as an individual and as a practicing lawyer,' and by alleging additional overt acts, including efforts to have him disbarred, and the filing of numerous statements in court libeling him, which statements, it was averred, were not privileged because malicious and not material and which had been judicially determined to be 'false and untrue.'

There were a number of motions and counter-motions, including a motion by defendant to require plaintiff to file 'a new and better statement of his cause of action.' Plaintiff moved to strike this motion. The trial judge overruled plaintiff's motion and sustained defendant's motion. Plaintiff refused to plead further, and the court dismissed his action.

The Supreme Court again reversed and remanded. In its opinion by Mr. Justice Neil, filed January 8, 1944, unreported, the Court held its former opinion was 'the law of this case,' and re-affirmed 'our former holding that the gravamen of the wrong complained of is the alleged conspiracy to injure the plaintiff.' After pointing out that great latitude is allowed in setting out the particular acts from which the conspiracy is to be inferred, the Court went on to say: 'Adverting now to the averments in the original declaration and subsequent amendments, it seems clear that the wrong complained of consists in the averment that defendant and its agents conspired to have plaintiff disbarred from practicing law and to injure him in his profession. It was not necessary to state the names of all alleged conspirators where the names of two or more are given and others who may be unknown. It is essential that certain overt acts were committed and some one or more of these should be alleged, but every act need not be averred to the point of showing that it fits into and becomes a necessary part of some other act. We think any evidence which has a natural and apparent tendency to establish the ultimate issue of conspiracy is relevant. The limit, however, to which circumstantial evidence may be admitted must rest within the sound discretion of the trial judge, who must determine the objects and purposes for which it may be offered. If the overt act is not clearly set forth in the declaration, then proof of it is admissible only when it is connected with and related to some act that is averred. Such acts and words, considered in connection with other acts, may be competent as tending to show purpose as well as malice. * * *' (Op. pp. 6, 7.)

Upon the second remand defendant filed a plea of 'not guilty' and the case was tried before the Honorable Wallace J. Smith, circuit judge, sitting by consent and by interchange in the place of the regular judge, the Honorable E. F. Langford, and a jury. The trial was begun March 22, 1944, and consumed more than thirty days. The jury were unable to agree, a mistrial was entered, and the jury discharged.

Defendant moved the court to set aside the order of mistrial, to grant a new trial, to direct a verdict for defendant, and to dismiss plaintiff's suit, upon the ground that the court had erred in overruling defendant's motion for a directed verdict at the close of all the evidence. On April 27, 1944, the trial judge took this motion under advisement and continued it from term to term. On February 24, 1945, he sustained the motion, directed a verdict, and dismissed the suit.

Plaintiff moved for a new trial, which motion was taken under advisement and overruled August 25, 1945. The trial judge filed a written opinion, which was made part of the record and in which he stated these reasons for his action: 'Considering the entire evidence in the case, I am of the opinion that a conspiracy was not proved, and that plaintiff was engaged in the unethical practice of the law.'

Plaintiff appealed in error and has assigned a number of errors. This case was heard and elaborately argued in this Court on December 16, 1946; and counsel for both sides were allowed further time in which to prepare additional briefs. Such briefs were later filed and the record was passed to us. It is quite voluminous, consisting of twenty-six volumes, with numerous documentary exhibits sent up in the original, together with a number of full briefs by able counsel for both parties.

Plaintiff's first assignment is that the trial court erred in setting aside the order of mistrial, in directing a verdict for defendant, and in overruling plaintiff's motion for a new trial and to reinstate the cause on the trial docket; and that this action was erroneous because there was material and determinative evidence to take this case to the jury and to support a verdict for plaintiff. That is the determinative issue before us.

In view of much of the argument in the briefs, it seems well to recall the rule, so often stated in numerous cases, by which both trial courts and appellate courts must be governed in determining a motion for a directed verdict. That rule is based on the constitutional right of trial by jury; and it has been fashioned so as to preserve that right and at the same time to administer the common law separation of function by which the jury try the facts and the judge the law. 'There can be no constitutional exercise of the power to direct a verdict in any case in which there is a dispute as to any material evidence, or any legal doubt as to the conclusion to be drawn from the whole evidence, upon the issues to be tried.' Tyrus v. Railroad, 114 Tenn. 579, 594, 86 S.W. 1074, 1077; Brenizer v. Nashville C. & St. L. Ry., 156 Tenn. 479, 3 S.W.2d 1053, 8 S.W.2d 1099; Osborn et al. v. City of Nashville, 182 Tenn. 197, 185 S.W.2d 510.

As said so often, this rule requires trial judges and appellate judges, in considering a motion by defendant for a directed verdict, to look to all the evidence, to take as true the evidence for plaintiff, to discard all countervailing evidence, to take the strongest legitimate view of the evidence for plaintiff, to allow all reasonable inferences from it in his favor; and if then there is any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the motion must be denied. Wildman Mfg. Co. v. Davenport Hosiery Mills, 147 Tenn. 551, 556, 557, 249 S.W. 984; Walton v. Burchel, 121 Tenn. 715, 723, 121 S.W. 391, 130 Am.St.Rep. 788;...