Hubbard v. Haynes
| Decision Date | 17 December 1949 |
| Citation | 25 Beeler 335,225 S.W.2d 252,189 Tenn. 335 |
| Parties | , 189 Tenn. 335 HUBBARD v. HAYNES et al. |
| Court | Tennessee Supreme Court |
Kolwyck & Clark and Robert E. Cooper, Chattanooga, for plaintiff in error.
Strang, Fletcher & Carriger, Chattanooga, for defendants in error.
The declaration in this case presents an action in damages for property damage to an automobile rising out of a collision which occurred on State Highway 11, between Chattanooga and Cleveland. After defendants had filed pleas to the declaration, they caused the Clerk to subpoena the plaintiff for the purpose of taking plaintiff's deposition. Plaintiff, on advice of counsel, did not appear, and thereafter similar subpoenas were served from time to time on plaintiff, until one which was served on July 11, 1949, requiring plaintiff to appear on July 20, 1949. The case came on for trial July 28, 1949, and at that time, plaintiff moved the Court to quash the various subpoenas to take his deposition. Then defendant filed a motion calling for an instanter dismissal of the case because of plaintiff's statement in open Court, that such subpoenas would not be obeyed. Thereupon, the Court overruled plaintiff's motion to quash the subpoenas and sustained defendants' motion to dismiss. An order was accordingly entered, dismissing the cause. A motion for a new trial was subsequently overruled, and the plaintiff has appealed.
The only questions presented are, (1) Whether defendants were entitled to take plaintiff's deposition as they proposed to do, and (2) Whether for plaintiff's refusal and failure to obey the subpoena, the Trial Court was justified in dismissing the cause.
Because the action was commenced on the pauper's oath, defendants support their right to take the deposition of plaintiff under the following provisions of Code, § 9806:
'The evidence of witnesses may be taken by deposition, in civil actions, by either party:
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'(9) When the suit is brought by a party in forma pauperis.'
The determinative question is whether the word 'witnesses' as used in the foregoing, includes 'parties to the record.' The historical background of the Code section quoted persuades us that it did not include parties. Subsection (9) of Code sec. 9806 was taken from section 1 of Chapter 128, Public Acts of 1851-52. The obvious purpose of said subsection was to ensure that poor persons who were litigating should not be deprived of necessary witnesses on account of the inability of such parties to pay traveling expenses, etc. When the Act of the Legislature was passed in 1851, parties of record were not competent as witnesses, and this incompetence was not removed until March 13, 1868, and the enactment of Chapter 75 of the Public Acts of 1867-1868. Therefore, it is historically impossible, State v. Nashville Baseball Ass'n, 141 Tenn. 456, 459, 211 S.W. 357, 4 A.L.R. 368, that the Legislature had 'parties' in mind when the word 'witnesses' was used in the Act. The identical language of Code, § 9806 of the Code of 1932, is taken verbatim from Code, § 3836 of the Code of 1858, which was, of course, 10 years prior to the time that parties were made competent to testify. From the examples collected and considered in Words & Phrases (q.v.) it is evident that the question whether the word 'witnesses' includes 'parties,' is to be determined in each case by the attendant circumstances and context, and that there is no safe general rule that can be applied universally.
The only Tennessee cases considered by the defendants are, Weakly v. Miller, 1 Tenn.Ch. 523, 527, and Ducktown Sulphur, Copper & Iron Co. v. Fain, 109 Tenn. 56, 70 S.W. 813. In the latter case, a dictum by Judge Cooper in...
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Vythoulkas v. Vanderbilt University Hosp.
...of 1801; and Chapter 100, Public Acts of 1811. However, parties were not subject to these deposition rules, Hubbard v. Haynes, 189 Tenn. 335, 337, 225 S.W.2d 252, 253 (1949), and the party electing to take a deposition was required to make the witness its own for all purposes. During this t......
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Tennessee Dept. of Human Services v. Vaughn
...privilege was waived by the holder thereof. See generally T.C.A. §§ 24-103 et seq. 2 As late as 1949 it was held in Hubbard v. Haynes, 189 Tenn. 335, 225 S.W.2d 252 (1949), that statutes authorizing the taking of depositions of witnesses prior to trial for use as evidence did not authorize ......
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Puckett v. Broome
...upon statutory provision * * *' 16 Am.Jur., Deposition Section 3. The foregoing rule is recognized in Tennessee. In Hubbard v. Haynes, 189 Tenn. 335, 225 S.W.2d 252, decided in 1949 and before the passage of the Tennessee Deposition Law, the defendant in the law action sought to take the pl......
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United States v. Minker, 11347.
...In re Denning, 1948, 5 Terry 470, 44 Del. 470, 61 A.2d 657; Hamilton Co. v. Goring, 1940, 65 R.I. 459, 16 A.2d 334; Hubbard v. Haynes, 1949, 189 Tenn. 335, 225 S.W.2d 252. We cite these cases principally for their teaching that "witness" is likely to be an ambiguous word, the meaning of whi......