McKee v. Hughes

• Decision Date: 08 January 1916
• Parties: MCKEE v. HUGHES ET AL.
• Court: Tennessee Supreme Court

181 S.W. 930

133 Tenn. 455

MCKEE v. HUGHES ET AL.

Supreme Court of Tennessee.

January 8, 1916

Certiorari to Court of Civil Appeals.

Action by T. J. McKee against William Hughes and others. Judgment for defendants was reversed by the Court of Civil Appeals and defendants bring certiorari. Writ granted, and judgment of Court of Civil Appeals reversed.

J. L Jones, J. C. Voorhies, and R. S. Hopkins, all of Columbia for plaintiff.

Holding & Garner and J. H. Denning, all of Columbia, for defendants.

WILLIAMS J.

McKee brought this suit against a large number of the residents of the village of Spring Hill, Maury county, to recover damages his declaration containing several counts, all of which, save the fourth, have been eliminated by the verdict of the jury and the rulings of the Court of Civil Appeals. In this fourth count it was averred that Spring Hill is incorporated, and has a board of mayor and aldermen, from which plaintiff had procured a license to do the business of a general merchant; that under this license he conducted a store for the sale of merchandise and had a prosperous business, when the defendants unlawfully conspired together to stop and destroy his business, and for that purpose signed and delivered to the board of mayor and aldermen the following petition addressed to that body:

"We, the undersigned citizens, do hereby petition your honorable body to declare the store conducted by T. J. McKee a public nuisance, and we further petition you to abate this nuisance by revoking his license and closing up his place of business.

This 27th day of August, 1913."

This paper was signed by 19 of the defendants.

It was further averred that the said board passed a resolution reciting that "numerous complaints have been made that T. J. McKee has been and is conducting a place of business which is a nuisance, and whereas a formal petition has been presented to us numerously signed by citizens, be it resolved that we hereby revoke the license issued to T. J. McKee," and that the marshal of the town be authorized to deliver to McKee a check rebating him a part of the license sum prepaid, "and to notify him that he can no longer conduct his place of business under the penalty of the city laws."

It is averred also that by reason of the above plaintiff's business was stopped and destroyed, to his damage, etc.

The trial judge instructed the jury that the defendants had a right under the law to petition the village council for redress of grievances, and that they were not bound to see that the details of that council's action with reference to their petition were absolutely legal. Further that there was no liability shown under the fourth count.

The Court of Civil Appeals reversed the judgment of the circuit court because of the above ruling; and we are asked to grant the writ of certiorari and to review the judgment of reversal.

We have no difficulty in following the Court of Civil Appeals to its conclusion that the action of the village council in undertaking to revoke the license and in notifying McKee that he could no longer conduct his business was unwarranted by law; but we are unable to follow that court in the ruling that the defendant petitioners must respond in damages on the ground that in presenting said petition they conspired to and did cause injury to plaintiff unlawfully.

There was proof adduced by plaintiff that tended to show that he had been injured by the action taken by the city marshal under the resolution of the council. But are defendants liable as conspirators?

A "civil conspiracy" may be defined to be a combination between two or more persons to accomplish by concert of action an unlawful purpose, or to accomplish a purpose not in itself unlawful by unlawful means; the damage caused being the gist of any action. 5 R. C. L. 1061, 1091; 1 Words and Phrases, Second Series, 910.

The defendants, in assembling and petitioning the village council, were proceeding in the exercise of a high constitutional privilege. By the Declaration of Rights embodied in our Constitution (article 1, § 23) it is provided:

"That the citizens have a right, in a peaceable manner, to assemble together for the common good, to instruct their representatives, and to apply to those invested with the powers of government for redress of grievances, or other proper purposes, by address or remonstrance."

In 8 Cyc. 894, citing Louisiana Citizens' Bank v. Orleans Parish Board (C. C.) 54 F. 73, the rule is stated to be:

"The right of assembly and petition is guaranteed by the Constitutions, which secure to every person, natural or artificial, the right to apply to any department of the government for the redress of grievances, or the bestowal of a right, and also guarantee the enjoyment of such redress of the grievances, * * * when obtained, free from any penalty for having sought or obtained it."

We think that this with modification, to be noted below, is a correct statement of the law.

We have been cited to but a single case in which a court has dealt with liability for conspiracy predicated upon the defendants signing a petition to those invested with governmental power for redress of grievances or setting forth instructions by way of an expression of their wish or will.

The Court of Civil Appeals grounded its ruling upon the authority of that case, Vanarsdale v. Laverty, 69 Pa. 103, 109.

The petition in that case was addressed to the district school directors by defendants, who were patrons of the school which had been taught by Laverty. The petition expressed their wish that Laverty be not employed for the ensuing school term under any circumstances and the willingness of the petitioners to accept any other competent teacher that the board might select. The action of Laverty was on the case for conspiracy, and malice was charged to have colored the effort made by defendants to prevent the directors from employing plaintiff. Referring to the petition, the court said:

"It preferred no charges and gave no reasons, and was a simple expression * * * of the wishes of the signers. It was the right of these citizens of the district thus to declare their desire. They had a right to express a preference or to declare their objection to any one applying for appointment. They were deeply interested, and had therefore a right to speak out. But we cannot recognize the position to

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