Rich Printing Co. v. McKellar's Estate

• Decision Date: 25 February 1959
• Citation: 330 S.W.2d 361,46 Tenn.App. 444
• Parties: RICH PRINTING COMPANY, Appellant, v. ESTATE of Kenneth Douglas McKELLAR, Deceased, et al., Appellees.
• Court: Tennessee Court of Appeals

Page 361

330 S.W.2d 361

46 Tenn.App. 444

RICH PRINTING COMPANY, Appellant, v. ESTATE of Kenneth Douglas McKELLAR, Deceased, et al., Appellees.

Court of Appeals of Tennessee, Western Section, at Jackson.

Feb. 25, 1959.

Certiorari Denied by Supreme Court June 5, 1959.

Rehearing Denied by Supreme Court July 27, 1959.

Hal Gerber, Gerber, Rond & Gerber, Memphis, for appellant.

Sam A. Myar, Jr., Kenneth F. Clark, Jr., McCloy, Myar & Wellford, Memphis, for appellee.

AVERY, Presiding Judge (W.S.).

This is an appeal from a decree of the Probate Court of Shelby County, Tennessee, denying the claim of appellant, Rich Printing Company of Nashville, Tennessee, in the amount of $2,542.21 against the estate of the late Senator Kenneth D. McKellar. The claim is for the balance due on printing and mailing of campaign material ordered by Senator McKellar's Headquarters in Nashville, Tennessee, during the senatorial primary election of 1952.

The total account included not only the printing and the expense incident thereto, but it included the charge for preparing for the United States mail and the postage necessary therefor, of the items ordered by said headquarters in behalf of Senator McKellar's campaign for the Democratic nomination to a seventh term as United States Senator.

Senator McKellar had conducted such a campaign, or had it conducted, as Democratic nominee for the same office in 1916, 1922, 1928, 1934, 1940 and 1946, in each of which former campaigns he was successful in his nomination and thereafter was successful in the regular election which occurred each November following the Democratic primary election, and during each of the former campaigns in the Democratic primary election the appellant had performed similar services as it did perform during the 1952 campaign in behalf of Senator McKellar. His experience in these former campaigns must have been such that he understood the relationship of such candidate to his campaign manager, and also the prevailing custom in Tennessee relating thereto.

The total account was credited with amounts sent from said headquarters to the office of appellant, and when the campaign was over the total account amounted to $21,544.72. The credits thereon, including a contribution to the campaign by Mr. David Morse, manager of appellant, totalled $19,002.51, leaving a balance of $2,542.21, the amount of the claim filed.

During the Democratic campaign in question, Senator McKellar's headquarters was in the Hermitage Hotel, Nashville, Tennessee. It was operated by and through Jimmie Gentry as campaign manager for Senator McKellar, Ward Hudgins as his assistant manager, and Ralph Wheatley in charge of publicity and press relations, under instructions from headquarters manager, which included 'news relations, news releases, publicity, printing and the preparation of all kinds of brochures and all kinds of literature'. The campaign material involved in this litigation originated with and was prepared by Mr. Wheatley in campaign headquarters and generally carried by him and turned over to appellant at its office in Nashville, or picked up at the headquarters by Mr. Morse.

Though not expressly shown by the proof, it can be abundantly inferred therefrom that Senator McKellar knew the kind of printing that was being done and being distributed, and on at least two occasions complimented Mr. Wheatley on the contents of the material.

After the campaign had closed, two credits were made on this account, one of $2,000 on August 8, 1952, by cash, and the other of $252.41 on January 14, 1953, by a check signed by Mr. Gentry and delivered by Mr. Ward Hudgins, in addition to the $750 credit on said account by Mr. Morse.

We think it a matter of general public political information that a candidate in a State primary campaign, such as Governor and United States Senator, personally selects and appoints a campaign manager and puts him in charge of that which is commonly known as the candidate's headquarters, and this we think is a matter of such public knowledge that the courts may take judicial knowledge that the candidate does select and appoint his campaign manager. Of course he will have the advice and counsel of friends who are supporting him, at least some of the leaders, but the campaign is his and when he has designated and appointed his campaign manager, it is our opinion that the manager of a primary campaign election becomes the agent of that candidate, with a broad scope of authority which includes the selection of an office force for the headquarters and is charged, without specific approval of the candidate when the same has been accepted by the candidate without protest, with the further responsibility of procuring what he considers to be the necessary publication and advertisement of his candidate's campaign.

Senator McKellar died testate on the 25th day of October, 1957. By his will, James Judson McKellar, Jr., C. Irwin Dunn, Sam Nickey, Jr., and W. Stuart McCloy, were nominated as executors. On its probate by order of the Honorable Sylvanus Polk, Judge of the Probate Court of Shelby County, on November 1, 1957, the above referred to executors were duly appointed and qualified. Within the time allowed by law, the questioned claim was properly filed and all necessary notices given thereof.

On March 11, 1958, within the time allowed by law, the appellees, executors hereinabove referred to, filed their exceptions in the following words:

'Said estate is not indebted to claimant, Rich Printing Company, in any amount.'

Notice of exceptions was duly given, and the hearing on the exception was set for and heard on May 1, 1958. At that hearing the claimant introduced as its witnesses David S. Morse, manager of appellant, and Mr. Bert Bates, whose oral evidence was preserved in the record. The deposition of Mr. Ralph Wheatley of Nashville, Tennessee, was also offered. The exceptors introduced no proof, taking the position that:

(1) Senator McKellar did not authorize his headquarters to incur the expenses evidenced by the account filed; and

(2) Having not authorized the expense, he did not ratify it after it had been incurred and therefore his estate was not liable on the claim.

After the proof was closed, the record indicates that Judge Polk dictated from the bench his opinion which appears in full in the record, and entered his order sustaining the exceptions and disallowing the claim as follows:

'Order Sustaining Exceptions And Disallowing Claim

'This cause came on to be heard this 1st day of May, 1958, upon the sworn claim of, Rich Printing Company, Nashville, Tennessee; upon the exceptions to such claim duly filed by the Co-Executors; upon the oral testimony of David S. Morse and Mr. Bert Bates, Memphis, Tennessee; upon the deposition of Mr. Ralph Wheatley, Nashville, Tennessee; upon statements of counsel; and upon the entire record in this cause.

'From all of which it appears to the Court that the claimant herein has failed to carry the burden of proof as to the liability of the decedent or his estate for the claim asserted.

'It is, therefore, ordered, adjudged and decreed that the exceptions filed by the Executors to the claim of Rich Printing Company be, and the same hereby are, sustained, and the claim of the said Rich Printing Company is hereby disallowed at claimant's cost, to which action of the Court claimant duly excepted and prayed an appeal to the Court of Appeals, which is granted upon claimant's complying with the law respecting the perfection of such appeals.

's/s Sylvanus Polk, Judge

'Dated--May 2, 1958

Thereafter, the claimant, appellant in this Court, having saved his exceptions and prayed an appeal to this Court, perfected it and has assigned four errors as follows:

'I.

'The Court erred in holding that, because the record does not disclose that Senator McKellar did not personally agree to pay the obligation, the claimant failed to carry the burden of proof.

'This was error because this observation is quite beyond the point. Claimant had no such burden. An account is not necessarily proved by admissions of the debtor.

'II.

'The Court erred in holding that claimant failed to carry the burden of proving that Senator McKellar was liable for this debt.

'This was error because claimant did prove that this obligation was incurred by Senator McKellar, through his agents, either with express or implied authority, or, if not, by ratification of acts of his agents without authority. In either event, the Senator had full knowledge of the transaction.

'III.

'The Court erred in holding that it is not the general custom for a senatorial, or any political candidate, to personally be bound to pay obligations incurred by his headquarters.

'This is error because the uncontradicted proof is all to the contrary.

'IV.

'The Court erred in denying the claim.

'This was error because the amount of the claim and the manner of performance of the services rendered were not questioned. The claim should have been allowed because it was contracted by Senator McKellar's agents, servants or employees with actual or implied authority or by ratification, as well as by custom and usage.'

In the brief of appellee, now before us, under the heading 'Recitation of Facts', appears the following statement:

'The late Senator Kenneth D. McKellar entered the 1952 Democratic Primary Campaign for United States Senator from the State of Tennessee in opposition to Mr. Albert Gore (R. 22, 26, 30, 37, 38). A campaign headquarters was organized in Nashville, Tennessee, Mr. James Gentry being Campaign Manager, Mr. Ward Hudgins being Assistant Manager, and Mr. Ralph Wheatley being employed as Publicity Man, for which he received a weekly compensation of $100.00 paid by Mr. Gentry (R. 22, 40). Of these mean, Mr. Ward Hudgins directed most of the campaign (R. 22).'

So it will be observed that the campaign headquarters was organized with a manager, an assistant manager, and a publicity director, the...