Memphis & Shelby County Bar Ass'n v. Aspero

• Decision Date: 16 March 1950
• Citation: 72 S.Ct. 61,242 S.W.2d 319,35 Tenn.App. 9
• Parties: MEMPHIS & SHELBY COUNTY BAR ASS'N v. ASPERO.
• Court: Tennessee Court of Appeals

Page 319

242 S.W.2d 319

35 Tenn.App. 9

MEMPHIS & SHELBY COUNTY BAR ASS'N v. ASPERO.

Court of Appeals of Tennessee, Western Section.

March 16, 1950.

Rehearing Denied May 3, 1950.

Certiorari Denied by Supreme Court Dec. 9, 1950.

Certiorari Denied Oct. 8, 1951.

See 72 S.Ct. 61.

John L. Exby, W. E. Quick, Memphis, for complainant.

Grover N. McCormick, Memphis, for defendant.

TIPTON, Special Judge.

This suit was instituted in the Chancery Court of Shelby Couty by the complainant appellee, Memphis and Shelby County Bar Association, Inc., pursuant to a resolution of its Board of Directors, against the respondent appellant, Nell Sanders Aspero, a member of said Association and a practicing attorney at the Memphis Bar, seeking to disbar her from the further practice of law because of the alleged violation by her of Subsections (5) and (2) of Section 9974 of the Code. At the hearing, the Chancellor sustained the bill, finding that the respondent had violated Subsection (5) by attempting to perpetrate a fraud against the Memphis Street Railway Company in a personal injury suit brought against it by her in the Circuit Court of Shelby County, that she had also violated said Subsection by falsely and maliciously charging Hon. Sam P. Walker, a fellow member of the bar, with fraud in connection with the trial of said suit, and that she had violated Subsection (2) by soliciting legal business, and fixed her punishment upon the first charge at suspension from the practice of law for five years and at a preprimand upon each of the other charges, and the respondent has appealed to this Court.

The original bill, after setting out the status of the parties, alleges that on April 18, 1945, the respondent filed a $15,000.00 damage suit in the Circuit Court of Shelby County against Memphis Street Railway Company for personal injuries alleged to have been sustained by her in an accident occurring near Cleveland and Madison Streets in Memphis on April 25, 1944, her declaration alleging with respect to her injuries as follows:

'By reason of the negligence aforesaid, Plaintiff was painfully and seriously injured; she was severely shocked and rendered highly nervous, was caused to suffer from digestive disturbances, was bruised on her left arm, left leg and right hip, was also caused to suffer from severe pains in her head, neck, right shoulder, back and abdomen; she was seriously injured in and about the abdomen and female organs, was caused to suffer from irregular and excessive menstruation, and continued so to suffer; she also suffered a strain of her back in the sacro-iliac or sacro-lumbar region, for which she was forced to wear heavy and uncomfortable brace constructed of steel and felt throughout the hot summer months, and for many months thereafter; she was also forced to undergo a prolonged series of physical therapy and diathermy treatments at a local hospital in her efforts to be cured, but still suffers intensely with backache, particularly during cloudy and rainy weather and/or cold weather; said nervousness, together with sleeplessness, continued for many months, in spite of the taking of sedatives which were prescribed therefor; Plaintiff was caused to lose much valuable time from her profession, being still unable to work more than five (5) hours each day; she has expended large sums of money to hospitals and to doctors in her efforts to be cured, has suffered much physical pain and mental anguish, and will continue so to suffer.'

It further alleges that on July 27, 1946, she filed a $25,000.00 damage suit in the Circuit Court of Knox County against U. G. Turner, doing business as Service Cab Company, for personal injuries alleged to have been sustained by her in an accident occurring in Knxoville on August 18, 1945, and that her declaration in said suit, after alleging that prior to said accident she was a strong, healthy and able-bodied woman, earning and capable of earning a substantial income, contained the following allegations with respect to the injuries alleged to have been suffered by her in that accident:

'Plaintiff was violently thrown and jostled about in said taxicab, and they were thereby inflicted upon her many painful and permanent bodily injuries. She was bruised and sprained about the head, limbs and body, her abdomen was bruised, her spine twisted and strained, her internal organs were misplaced and the proper functioning thereof disturbed. As a result of said injuries, plaintiff suffered much excruciating pain and mental anguish, and will hereafter suffer much pain and mental anguish, some of said injuries being permanent.'

It further alleges that said suit against Memphis Street Railway Company was tried on September 30, 1946, and that the respondent testified therein that she had never had any trouble with her back prior to said accident on April 25, 1944, but that when confronted with a sworn petition for divorce filed by her in 1937 alleging that in 1935 she had sustained a sacro-iliac strain for which she was forced to wear a heavy and uncomfortable brace for a year or more thereafter, she admitted said prior back injury; that she testified on said trial that as a result of said accident on April 25, 1944, she had suffered and continued to suffer a great deal of pain and aching and that she was still under the care of Dr. Henry G. Hill, an orthopedic surgeon of Memphis, and that she had not been able to resume all the duties of her profession and that all of said pain and disability resulted from said accident; that in said trial she did not disclose the fact that she had been involved in the accident in Knoxville and received similar injuries therein until she was confronted upon cross-examination by counsel for Memphis Street Railway Company with the declaration filed therein; and that, when asked the name of doctors who had treated her since the 1944 accident, she failed to disclose the fact that Dr. Vernon I. Smith of Knoxville had treated her for injuries sustained in said Knoxville accident.

The bill further alleges that notwithstanding the fact that she had been under the treatment by Dr. Hill from March, 1946, to the time of said trial, she failed to disclose to him that she had received similar injuries in the Knoxville accident and had been treated for the same by Dr. Smith, nor did she disclose to Dr. Smith that she had received injuries to her back, nervous system and female organs in the Memphis accident, and from which she testified that she still suffered and for which she was still receiving treatment at the time of the trial; that she failed to disclose to the attorney representing her in her Knoxville suit that she had a damage suit for similar injuries pending in Memphis, and that she did not disclose to the attorney representing her in her Memphis suit that she had a suit for similar injuries pending in Knoxville until shortly before the trial of the Memphis suit; that a few days before the trial of the Memphis suit, when the respondent was approached by local counsel for the insurance carrier of the defendant in the Knoxville suit for the purpose of arranging for her physical examination by a Memphis doctor, she stated that she did not have a Memphis doctor but was acting under instructions from Dr. Smith, and this despite the fact that she was then and had been for several months under the care of Dr. Hill for injuries claimed to have been received in the Memphis accident; and that in said particulars the respondent was guilty of bad faith and fraud in the prosecution of both of said suits and that her conduct with respect thereto renders her unfit to be a member of the bar.

The bill further alleges that the respondent was cast in sid suit against Memphis Street Railway Company and that on October 1, 1947, she filed in the Circuit Court of Shelby County a petition for a writ of error coram nobis seeking to have the judgment theretofore entered against her in said suit set aside and that said petition, which was verified by the oath of the respondent, is replete with charges of deliberate fraud against Hon. Sam P. Walker, a reputable and respected member of the Memphis Bar, who represented Memphis Street Railway Company in said suit, such charges being directed to the argument made by him to the jury in the trial of said damage suit; that Mr. Walker in all respects conducted himself properly in said trial and that all of the remarks and observations made by him to the jury were legitimate inferences and deductions to be drawn from the testimony, and that respondent's charges of fraud made against him were wholly false and were made by the respondent in an attempt to obtain a personal advantage as a litigant, and reflect a wilful and unconscionable disregard of her duties and responsibilities as a member of the bar and renders her unfit to be a member thereof.

In addition to the above charges growing out of said litigation, the bill charges that, after a hearing thereof by the Board of Directors of complainant, the respondent announced through the public press of Memphis that she had withdrawn from the practice of law, but that in spite of the same, she has continued to practice, and that she had and was then engaged in the solicitation of accounts and other legal business by circularizing Memphis firms by mail in violation of the statute, and that she has clearly demonstrated by her conduct that she is not qualified to fully understand and appreciate the duties and responsibilities that attend the practice of law and that she is unfit to be a member of the Bar of Tennessee.

The respondent in her answer, which is quite lengthy, admits many of the factual matters charged in the bill, but denies all allegations of misconduct, and goes into great detail in explaining these matters and any unfavorable inferences which might be drawn therefrom. She admits the quoted language of the two declarations and the similarity of the injuries alleged in them, but s...