Sweeney v. Carter

• Decision Date: 02 March 1940
• Citation: 137 S.W.2d 892,24 Tenn.App. 6
• Parties: SWEENEY v. CARTER.
• Court: Tennessee Court of Appeals

137 S.W.2d 892

24 Tenn.App. 6

SWEENEY v. CARTER.

Court of Appeals of Tennessee, Middle Section.

March 2, 1940

Certiorari Denied by Supreme CourtDecember 2, 1939.

Appeal in Error from Circuit Court, Davidson County; Richard P Dews, Judge.

Action by Mrs. A. L. (Irene) Carter against Mrs. A. Letty Sweeney for criminal conversation and alienation of the affections of Mrs. Carter's husband.While the action was pending, Mrs Sweeney was adjudged to be a person of unsound mind, and Wiley C. Wilson was appointed and qualified as her guardian.The suit was revived against the guardian.The jury returned a verdict for Mrs. Carter for $4,000.Judgment was entered for Mrs. Carter for $1,500 after the trial judge suggested a remittitur of $2,500, which Mrs. Carter accepted under protest.From such judgment, both parties, including the guardian, appeal in error.

Affirmed and rendered.

In suit for criminal conversation and alienation of husband's affections, the phrase "actual testimony" in charge that plaintiff was not required to bring up actual testimony of adultery, but could prove adultery by convincing circumstances, was not misleading or prejudicial, and charge merely meant that plaintiff was not required to bring direct testimony to prove adultery, but could prove adultery by convincing circumstantial evidence.

C. H Rutherford, H. B. Weimer, and Elliott Simrell, all of Nashville, for A. L. (Irene) Carter.

Jeff McCarn and O. W. Hughes, both of Nashville, for A. Letty Sweeney.

FELTS Judge.

Mrs. Carter sued Mrs. Sweeney for criminal conversation and alienation of her husband's affections.There was a verdict for her for $4,000.The trial judge suggested a remittitur of $2,500, which Mrs. Carter accepted under protest, and judgment was entered for her for $1,500.Both parties appealed in error.

Mrs. Carter's assignments of error complain of the remittitur.The only case in which one may accept a remittitur under protest so as to save the question for appellate review is where the remittitur is suggested by the trial judge because he thinks the verdict is so excessive as to indicate passion, prejudice, corruption, partiality, or unaccountable caprice on the part of the jury.Code, sec. 8987.Since the record does not show that the remittitur was suggested upon that ground, Mrs. Carter's acceptance of the remittitur bound her, her protest was unavailing, and her assignments must be overruled.Yarbrough v. L. & N. R. R. Co.,11 Tenn.App. 456, 457, 460;Chumley v. Anderton,20 Tenn.App. 621, 103 S.W.2d 331;Harrison v. Graham,21 Tenn.App. 189, 107 S.W.2d 517.

While this suit was pending, Mrs. Sweeney was adjudged by the County Court of Davidson County to be a person of unsound mind, and Wiley C. Wilson was appointed and qualified as her guardian.On August 12, 1938, the suit was revived against the guardian, and thereafter it proceeded to trial, with the result above stated.The guardian has joined Mrs. Sweeney in this appeal in error.The first assignment of error is that there is no evidence to support the verdict.The evidence for plaintiff tends to prove these facts:

Plaintiff, Mrs. Irene Carter, and A. L. Carter were married in Chattanooga in 1919.One child, a boy, was born of this marriage.About 1922 or 1923 A. L. Carter left his wife and child and came to Nashville.She obtained a divorce from him upon the ground of abandonment and failure to provide.In October, 1926, she came to Nashville and they were remarried.Two children were born of this marriage.For a while A. L. Carter and his wife and children lived with his father.Later they lived in a house he rented on Buchanan Street.In the summer of 1935he moved his family into a "barn" on a tract of 17 acres of land, located in the 14th District of Davidson County, near the Tuberculosis Hospital, which he had previously contracted to buy and to pay for at the rate of $25 per month.A few months after moving to this place he left his wife and children; and they have been living on this place ever since, while he has been living somewhere in Nashville.He appears to be still keeping up the monthly payments on the place.

From the time he came to Nashville he seems to have had no regular employment.For a while he ran a garage.Later he worked for the railroad, but had no regular job.Then for a while he and one J. W. Yearwood ran a detective agency on Deaderick Street in Nashville.Owing to unfavorable publicity in the newspapers they had to quit this business.When he moved away from the house on Buchanan Street he left some unpaid rent, which he discharged by voluntary bankruptcy.Up to the time he left his wife and children sometime in 1935, he supported them; but sometime thereafter (date not appearing)she brought proceedings against him in the Juvenile Court and by that means has been collecting from him "Ten dollars on the 10th and 23rd of the month."

He first met Mrs. Sweeney about July, 1935.She and her husband had been divorced; and she was running an undertaking business at 209 Woodland Street, Nashville.She employed Carter to collect accounts and rentals on her real estate.He later began working on her automobiles, driving her ambulances, and doing other work around her undertaking establishment.He was employed by her for about a year.During this period he spent much of his time in association with Mrs. Sweeney, going places with her in her automobile and staying around the funeral home.She lived in the same building in which she conducted her undertaking business.On the first floor were her funeral parlor, embalming room and office; and her bedroom adjoined her office and embalming room.On the second floor were the kitchen, dining room and other bedrooms.

Mrs. Carter testified she became suspicious of her husband's conduct with Mrs. Sweeney and that on one occasion she caught the 9 P. M. bus, rode into Nashville, went to the rear of the undertaking establishment and waited and watched for sometime; that about 11 P. M. the telephone or doorbell rang and the light in the bedroom was turned on, and through the window she saw her husband and Mrs. Sweeney get off the bed and begin dressing.She says she did not interfere or call an officer or any other person, but "left when they began dressing."

While this story is not convincing, it was in a general way corroborated by other witnesses who testified to circumstances indicating that an adulterous relation was going on between Carter and Mrs. Sweeney during the latter part of 1935 and up to about the time this suit was brought July 28, 1936.The credibility of Mrs. Carter and these other witnesses was a matter for the jury.

Its appear that Mrs. Sweeney was present at the trial, but she did not testify.It is said her condition was such that she could not testify.The only evidence adduced for her was the testimony of two doctors who said she was of unsound mind and several of her neighbors who gave her a good reputation for chastity and veracity.

The main insistence under the first assignment of error is that Mrs. Sweeney was insane during the period of her association with Carter and that her insanity is a defense to this suit.

An insane person is liable in tort for compensatory damages, where express malice or evil intent is not a necessary element of the tort.Ward v. Conatser, 4 Baxt. 64, 63 Tenn. 64;14 R.C.L. 596, 597;13 C.J. 749, 750;Cooley on Torts(4th Ed.) Vol. 1, sec. 65;Annotation, 51 A.L.R. 833;compareLiability in Tort of Infants and Insane Persons by Francis H. Bohlen, 25 Mich.Law Rev. 9, reprinted in Studies in the Law of Torts, 543-576; Mr. Justice Holmes, The Common Law, 109.It has been held that insanity is a defense to an action for slander (Bryant v. Jackson, 6 Humph. 199, 25 Tenn. 199), libel or malicious prosecution(Cooley on Torts (4th Ed.), Vol. 1, p. 192;14 R.C.L. 597), but not to an action for alienation of a wife's affections by adultery.Shedrick v. Lathrop,106 Vt. 311, 172 A. 630.

Where malice or evil intent is a necessary ingredient of the tort it would seem that the test of civil liability should be the same as that of criminal responsibility which is whether the...