Opinion
For majority opinion, see 330 S.W.2d 361.
CARNEY, Judge.
I respectfully disagree with the majority opinion and would affirm the judgment of the Probate Court disallowing the claim.
It is true that Mr. Morse testified that his company always looked to the candidate for payment in primary elections and no proof was introduced to the contrary. However, I am of opinion that this evidence is not sufficient to prove or establish the existence of the usage or custom insisted upon.
Not only did Mr. Morse not give any instances in which other companies had charged printing expenses authorized by a campaign manager to the candidate himself but he gave no other instances in which his company had charged such printing to the candidate himself. He merely stated that he could give some instances where defeated candidates had paid the deficit if requested so to do. See Standard Oil Co. v. Swan, 1890, 89 Tenn. 434, 436, 15 S.W. 1068, 10 L.R.A. 366.
As a general rule in order to establish a usage or custom the evidence thereof must be clear and satisfactory. When the custom is a particular one it is especially important that the proof be clear and conclusive. In order to establish a usage or custom it is not sufficient to prove isolated instances. 55 Am.Jur., Usagess&sCustoms, page 316, Section 56--Weights&sSufficiency of Evidence. See also Greenleaf on Evidence, 15th Edit. Vol. II, Section 252.
Also it is almost universally required in order to hold a person bound by an alleged custom or usage, that he have either actual or implied knowledge of such custom; if it does not appear that he had actual knowledge of it, the custom or usage should be one so general that he will be presumed to have knowledge of it. More particularly the rule is stated to be that before a person can be chargeable with a custom or usage, the practice in question must be so notorious as to affect him with knowledge of it and raise the presumption that he dealt with reference to it, or he must be shown to have had actual knowledge of it. 55 Am.Jur., Usagess&sCustoms, page 282, Section 21--Knowledge of Usage or Custom.
Senator McKellar represented the State of Tennessee in the United States Senate for approximately forty years. During that time he made several state-wide campaigns. In some of these races Mr. Morse was an active supporter of and worker for Senator McKellar.
In none of the former campaigns was Senator McKellar ever asked by Mr. Morse to pay any printing bills arising out of said campaigns. Mr. Morse explained this fact by saying that in those campaigns Mr. McKellar won and that it is no trouble for a winning candidate to have campaign expenses paid. Hence, there was no deficit until after Senator McKellar was defeated in 1952.
Mr. Morse himself testified that Senator McKellar was very careful to keep campaign funds separate from his personal funds; he would not even endorse a campaign contribution check but meticulously insisted that some person active in the campaign do so. This habit on the part of Senator McKellar suggests to us that he also considered liability for campaign expenses separate and apart from his personal liability. Hence, I am of opinion that the estate is not liable on the theory of custom and usage both because the evidence is insufficient to establish the custom and because there is no proof that Senator McKellar had knowledge, actual or implied, of the alleged custom.
Now with reference to the liability of the estate for the debt under the general principle of law of agency, I agree that the case of Rehm v. Sharp, 1932, La.App., 144 So. 78, supports the majority opinion and is contrary to this dissent.
With great deference to the Supreme Court of Louisiana and even greater deference to the opinion of my learned colleagues, I question the soundness of such a rule. It is now a matter of general knowledge that a state-wide race for public office, either in a primary or general election, requires the expenditure of many, many thousands of dollars through many different hands and for many different purposes.
Campaign literature and buttons; television appearances; radio time; newspaper advertising; job printing and mailing as in the present case, all on the state level probably make up the greater portion of the total campaign expenditures.
In addition we know that state campaign managers appoint local or area campaign chairmen who in turn expend or authorize the expenditure of considerable sums of money for campaign purposes. Oftentimes these expenditures by the local chairmen are done upon the express authority of the state campaign chairman. For instance the state campaign headquarters often furnishes to local headquarters prepared material to be used on local radio, local television and in local newspapers. Street banners and road signs are sometimes furnished from state headquarters to local or area chairmen to be installed or erected at local expense.
I think it is a matter of general knowledge that the money for these many expenditures both on the state level and on the local level is raised usually by interested workers and only a small percentage of the cost of a state-wide race is paid by the candidate himself.
Obviously, the candidate himself cannot supervise all of these many activities and many others not mentioned above, though he knows and intends that they will be done for him in behalf of his candidacy. In my humble opinion it would not be in the public interest to saddle upon every candidate for state-wide office a potential liability of so many thousands of dollars and the possibility of multiple claims against him with such limited opportunity to protect and indemnify himself against such liability.
Finally, it is my opinion that the testimony affirmatively shows that at the time Mr. Morse contracted for this printing he was not looking to or expecting Senator McKellar to pay any of the cost of the printing. It was to be a cash transaction and he was looking to the campaign manager, Mr. Gentry, to pay him along each week as the work progressed. Further, I think the testimony of Mr. Morse indicates that he fully understood that this cash was to come only from campaign contributions and that he was not expecting Senator McKellar to underwrite and guarantee the many contracts entered into by Mr. Gentry including this one with Rich Printing Company.
Hence, I think His Honor the Probate Judge properly disallowed the claim.