Jackson v. Jackson

• Decision Date: 20 April 1948
• Parties: JACKSON v. JACKSON.
• Court: Tennessee Supreme Court

210 S.W.2d 332

186 Tenn. 337

JACKSON v. JACKSON.

Supreme Court of Tennessee.

April 20, 1948

Appeal from Chancery Court, Davidson County, Wm. J. Wade Chancellor.

Action by Eburt Silas Jackson against Elsie Leone White Jackson for divorce. To review the chancellor's decree for the defendant, affirmed by the Court of Appeals, plaintiff brings certiorari.

Certiorari denied.

Homer B. Weimar, Andrew D. Tanner, Walker & Hooker and K. Harlan Dodson, Jr., all of Nashville, for complainant.

Alfred T. Adams, guardian ad litem,. Walker Casey, of Nashville, for Paul R. and Iris Long Morrison.

GAILOR Justice.

In August 1944 Eburt Silas Jackson filed a bill in the Circuit Court of Davidson County, seeking an absolute divorce from his wife, Elsie Leone White Jackson, on the grounds of cruel and inhuman treatment. After this suit was filed, the defendant was adjudged to be a person of unsound mind and committed to the Central State Hospital. Thereafter Eburt Silas Jackson filed a bill in the Chancery Court to sell certain real estate in which he and his wife were jointly interested, and as an incident of the bill in Chancery, he sought consolidation and transfer of the divorce bill pending in the Circuit Court. The consolidation and transfer were ordered and the divorce petition heard by the Chancellor on depositions. On objection made by the guardian ad litem, so much of complainant's deposition as related to 'transactions and conversations with and statements by' defendant were excluded in pursuance of the provisions of Code, § 9779. The Chancellor then found the remaining evidence insufficient to justify decree for absolute divorce on the grounds of cruel and inhuman treatment, and denied the relief sought. On appeal the Court of Appeals affirmed the action of the Chancellor.

The complainant has filed petition for certiorari in which he makes the same assignments of error as were made in the Court of Appeals:

(1) That the Chancellor was in error in applying Code, sec. 9779 and in excluding parts of Complainant's deposition.

(2) That the Chancellor erred in denying a decree for absolute divorce even after parts of the deposition were excluded, because the evidence, exclusive of complainant's testimony, was sufficient to warrant the relief sought.

Petitioner supports his first assignment by argument that since in a suit by one spouse against another, Code, § 9777, has been held not to apply, that therefore, construing Code, § 9779, in pari materia with Code, § 9777, we should adopt the same rule of construction and hold that in a divorce bill brought by the husband, he should be allowed to testify against his insane wife as to matters protected by Code, § 9779. The premises, on which this argument is based, are false for two basic reasons. Although Code, §§ 9777 and 9779, were passed as sections of the same Act of the Legislature, the reasons actuating passage of section 9779 were entirely different and distinct from those actuating the passage of section 9777. Section 9779 was passed to protect the interests of those persons whose lips were sealed by death or disability, and section 9777 was passed to abrogate the old rule of the Common Law which denied the right to testify to those who were parties to the cause or interested in its result. The reasons and purpose for the passage of the two sections were entirely different, and since there is no lack of clarity of word or phrase in either section, there is no basis for a construction of the two sections in pari materia.

In the second place, we find and are cited to no case where this Court has ever approved an exception to the prohibition of Code, § 9777, or permitted one spouse to testify against another in a suit brought directly by one spouse against another where there has been timely objection and exception preserved to such testimony. On the contrary, in two of our reported cases this Court has expressly reserved a decision of the point. In the case of Patton v. Wilson, 70 Tenn. 101, at page 113, Cooper, J., said:

'No opinion is expressed whether in a direct suit between husband and wife, where each is a material party, either can be a witness for or against the other, under the recent statutes.'

Immediately after this reservation and doubt were expressed by Judge Cooper, the Legislature passed Chapter 200 of the Acts of 1879. The prohibitions in the sections of the Act which are now Code, §§ 9777 and 9779, were absolute and contained no exception in favor of husband or wife when the suit was direct by one spouse against the other. It might reasonably be argued that with the opinion of Patton v. Wilson, supra, before it, the Legislature reaffirmed the law against rather than for the exception for which complainant contends. In its last statement (1935) this Court declined a decision of the question:

'It has not been decided that a husband or wife is incompetent as a witness as to the matters proscribed when the litigation is directly between themselves. On the contrary, this question has been expressly reserved in Patton v. Wilson, 2 Lea (70 Tenn.) 101. It is not necessary to determine the question here.' (Italics ours.) Green, C.J., Hunt v. Hunt, 169 Tenn. 1, 14, 80 S.W.2d 666, 671.

Evidently Judge Green did not...