Tennessee Pub. Co. v. Fitzhugh

• Decision Date: 23 July 1932
• Docket Number: No. 9.,9.
• Citation: 52 S.W.2d 157
• Parties: TENNESSEE PUB. CO. v. FITZHUGH et al.
• Court: Tennessee Supreme Court

Page 157

52 S.W.2d 157

TENNESSEE PUB. CO. v. FITZHUGH et al.

No. 9.

Supreme Court of Tennessee.

July 23, 1932.

Certiorari to Court of Appeals.

Suit by the Tennessee Publishing Company against the Minnesota & Ontario Paper Company and Guston T. Fitzhugh. To review a decree of Court of Appeals, reversing decree dismissing the suit, defendants bring certiorari.

Decree of Court of Appeals reversed, and suit dismissed.

Lowell W. Taylor, of Memphis, for plaintiff.

J. Elmore Holmes and J. Walter Canada, both of Memphis, for defendants.

CHAMBLISS, J.

This suit was brought against Minnesota & Ontario Paper Company and Fitzhugh to recover for damages to the business of plaintiff, alleging that the paper company and its attorney, Fitzhugh, had conspired to injure and destroy plaintiff by maliciously prosecuting a suit against plaintiff and asking for a receiver in the chancery court at Nashville, showing that pursuant to this conspiracy the suit, based on a large overdue claim by account, was brought and was still pending, the appointment of a receiver, however, having been applied for and declined.

The trial judge, holding the suit to be in effect an action to recover damages for malicious prosecution, and that no such action could be maintained until determination of the alleged malicious prosecution, sustained defendants' plea and dismissed the suit.

The Court of Appeals has reversed, saying, after quoting expressions from McKee v. Hughes. 133 Tenn. 459, 181 S. W. 930, 931, L. R. A. 1916D, 391, Ann. Cas. 1918A, 459, and other authorities: "These cases show that all that is necessary in an action of this character is to show conspiracy with wrongful intent to ruin the plaintiff and some steps to carry out that intention and damages resulting from some overt act, such as the institution of a proceeding causing damages. It is not necessary that the said proceeding should be terminated, or if terminated, that it should be in favor of the plaintiff." Certiorari has been granted and argument heard.

The expression relied on from McKee v. Hughes, supra, is this: "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."

The concluding words qualify what has gone before. The "gist" — that is, "The essential ground or object of the action in point of law, without which there would be no cause of action" — is the damage. 2 Rawle's Bouvier Law Dict. (1914 Ed.) 1355; Gould, Pl. c. 4, par. 12; Hathaway v. Rice, 19 Vt. 102.

The damage being the gist of the action, and the "gist" being "the cause for which an action will lie — the ground or foundation of a suit, without which it would not be maintainable" (First National Bank of Flora v. Burkett, 101 Ill. 394, 40 Am. Rep. 209), actionable damage must be alleged, and must be shown to be recoverable as of the time of the bringing of the action.

In the case before us, the sole basis for the right to recover damages is the alleged malicious prosecution, without probable cause, of the suit brought in the chancery court of Davidson. This damage cannot be recovered until the termination of that suit; the right to such damage being dependent on its determination. Not having been so determined, the trial judge held this action to be premature.

The early case of Kirtley v. Deck, 2 Munf. (Va.) 10, 5 Am. Dec. 445, was an action for conspiracy, in which it was said that the allegations of conspiracy were "mere surplusage, intended as matter of aggravation"; that it was the damage done the defendant by the bringing of the alleged malicious prosecution which was the ground of the action; and the opinion quoted Lord Mansfield, "that the essential ground of an action for a malicious prosecution is that a legal prosecution has been carried on without any probable cause," etc. This case was followed and approved in Spengler v. Davy, 15 Grat. (Va.) 396.

It is, of course, well settled that a suit to recover damages for malicious prosecution is not maintainable until determination of the basic action. Swepson v. Davis, 109 Tenn. 99, 70 S. W. 65, 59 L. R. A. 501; Boyce v. Early-Stratton Co., 10 Tenn. App. 545. We do not understand the learned writer of the Court of Appeals opinion to question this rule as applicable to a suit for malicious prosecution, but to reject its application in the instant case on the theory that "this is not a suit for malicious prosecution, but an action for damages resulting from a conspiracy to injure and destroy the plaintiff."

Now, if, when analyzed, the essential ground, the "gist," of an action to recover damages, although charging conspiracy, as here, is found to be a malicious prosecution, the distinction drawn appears to us to lack support, and it would seem to follow that the action cannot be maintained during the pendency of the alleged malicious prosecution.

This view is supported by well-established principles governing all civil actions for conspiracy. In the leading and frequently cited case of Robertson v. Parks, 76 Md. 118, 135, 24 A. 411, 413, it is said:

"It is a general rule that a conspiracy cannot be made the subject of...