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03/17/65 THOMAS PAUL LANCASTER and v. LOUIS F. MONTESI

THOMAS PAUL LANCASTER and MRS. MARY ELLEN EASLEY
v.
LOUIS F. MONTESI, SR



[3]    390 S.W.2d 217, 216 Tenn. 50

[4]    March 17, 1965, Opinion filed

[5]    FROM SHELBY

[6]    May 7, 1965, Petition for Rehearing Denied.

[7]    PER CURIAM DECISION

[8]    This appeal raises the single question of whether the wrongful acts of defendant, alleged in plaintiffs' declaration, were the proximate cause of the deceased's suicide.

[9]    The deceased, Margaret Rodell Lancaster, allegedly the paramour of the appellee Louis F. Montesi, Sr., referred to herein as defendant, committed suicide by jumping from the Memphis-Arkansas bridge in Memphis, Tennessee, on June 11, 1962. Her son, Thomas Paul Lancaster, and her mother, Mrs. Mary Ellen Easley, brought this action as next of kin for her alleged wrongful death under T.C.A.sec. 20-607.

In substance, the declaration alleged that for a considerable period of time prior to her death the deceased had been under the domination and control of defendant; that he had subjected her to punishment of the most sadistic type; that it was his design to master, possess and control her for his own illicit purposes, with the result that she had lost all ability to resist his domination and live a virtuous life; that she had been alienated and divorced from her husband; that all of this became so much of a burden on her that she finally committed suicide by jumping from the Memphis-Arkansas bridge; and that her death was negligently and willfully caused by his wrongful acts.

More specifically, the declaration alleged that during the period of their illicit relationship, the defendant "had not only used her but had inflicted, on many occasions, punishment of the most sadistic type; that he had broken her leg, burned her with a cigarette, blacked her eyes, kicked her, and caused her to be bruised and discolored over large areas"; that "on many occasions the deceased has escaped from the defendant and on one occasion had gone to the State of Alabama," only to have defendant forcibly bring her back to Memphis to continue her illicit relationship.

The declaration further alleged that on June 10, 1962, the day prior to her suicide, the defendant took deceased to Alabama where they remained overnight; that she attempted to reach relatives, but was prevented from doing so by defendant; and that en route back to Memphis she attempted to commit suicide by leaping from the moving car in which they were traveling.

Upon their return to Memphis, defendant took the deceased to their apartment where she called a mutual friend, and in the presence of the defendant, related the abuse imposed upon her, "and stated that she was going to 'end it all'" The mutual friend talked to the defendant on the phone and asked him to hold her, take her to the hospital, do anything, but do not leave her alone, whereupon, the defendant replied: "Hell, I'm gone." He then allegedly left the apartment.

Finally, the declaration alleged that after the defendant left, the deceased wrote a suicide note in which she said" "Ma Ma, I'm sorry. Louis has beat me enough." She then left the apartment and went to the Memphis-Arkansas bridge where she took her life.

Defendant filed a demurrer asserting that his alleged wrongful conduct was not, as a matter of law, a proximate cause of the deceased's death, and that the declaration, therefore, did not state a cause of action. The trial court, W. E. Quick, Judge, ruled in favor of the defendant, sustained the demurrer, and dismissed the action.

Plaintiffs appealed, insisting that under the peculiar circumstances of the case, decedent's act of jumping from the bridge was not an efficient intervening cause which would interrupt the causation and excuse defendant, and the defendant's acts were, therefore, the proximate cause of the suicide.

Since this case is in this Court on a demurrer to the declaration which was sustained by the trial court, if there is any possible ground on which a cause of action may be predicated, we must reverse the trial court and remand for trial. Byrd v. Pioneer-Jellico Coal Co., 180 Tenn. 396, 175 S.W.2d 542 (1943); Lazarov v. Nunnally, 188 Tenn. 145, 217 S.W.2d 11 (1949).

One's first inquiry, in analyzing a situation such as is before us, is whether the alleged acts of defendant were a cause in fact of the injury. "If that inquiry shows that defendant's conduct, in point of fact, was not a factor in causing plaintiff's damage, that ends the matter. But if it shows his conduct was a factor in causing plaintiff's damage, then the further question is whether his conduct played such a part in causing the damage as makes him in the eye of the law the author of such damage and liable therefor." Carney v. Goodman, 38 Tenn. App. 55, 618 270 S.W.2d 572, 575 (1954).

Since the sole ground of the demurrer was that his conduct was not the procimate cause, we need only consider "whether his conduct played such a part in causing the damage as makes him in the eye of the law the author of such damage and liable therefor."

In deciding proximate, or legal, causation, it must first be determined whether the defendant owed a duty to the plaintiff, and thus whether there was any negligence. Foreseeability is the test for negligence, and the inquiry is whether defendant's conduct created an unreasonable risk of harm to plaintiff. Spivey v. St. Thomas Hospital, 31 Tenn. App. 12, 25, 211 S.W.2d 450 (1947).

If the injury to plaintiff could have been foreseen or anticipated by defendant, then there is a duty to use care, and negligence may be established. Gentry v. ...


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