Hunt ex rel. Phillips v. Hunt , 56 Tenn. App. 683 ( 1965 )

ON PETITION TO REHEAR

Solicitor for appellant Dorothy Ann Hunt Phillips as next friend of Charles Emerson Hunt, Jr., has filed a petition to rehear. In ground one of the petition, solicitor for appellant takes this Court very much to task for having said in substance that we find Charles E. Hunt, Jr., to have been mentally competent to marry upon uncon-tradicted evidence. This statement was made by us in pretermitting assignments of error XI and XII relating to the exclusion by the Trial Judge of certain opinion testimony concerning the mental capacity of Charles E. Hunt. We did not mean that all of the evidence was un-contradicted.

Illustrative of the uncoutradicted evidence referred to by us is the fact that the appellant, Mrs. Dorothy Arm Phillips, waited several years after her brother married the defendant before she protested the validity of the marriage. We also had in mind the uncontradicted testimony that Mr. Charles E. Hunt and his sister, the appellant, signed a joint petition to be named administrator C.T.A. of their mother’s estate in the Probate Court of Shelby County in 1951; the petition was .granted; they qualified with corporate surety; in 1952 they made settlement with each other as the sole beneficiaries of the estate of their mother and filed a joint final settlement which was approved by the Court. At that time and subsequent thereto Mr. Charles E. Hunt had personal bank accounts in more than one bank in Memphis and managed his own financial affairs without any suggestion being made by Mrs. Phillips that he needed a guardian to attend to his affairs. Both his mother and father made gifts both inter vivos and testamentary to Charles E. Hunt directly without any mention of a guardianship’ for him.

We also had in mind the uncontradicted testimony of Miss Ann Neely, a licensed practicing attorney in Memphis, Tennessee, who knew Mr. Charles E. Hunt well and had lived in his mother’s home. She testified that after Mr. Hunt’s marriage to Mrs. Marie Sommers Hunt, he told her about his marriage on one occasion and later brought his wife and stepdaughter to her office for her to meet them. The testimony of Mr. Jones, the accountant, that he regularly made Mr. Hunt’s annual income tax return from figures furnished him by Mr. Hunt himself was also uncontradicted. This ground of the petition to rehear is therefore respectfully overruled.

The second ground of the petition to rehear is that this Court erroneously overruled assignment of error XIII relating to the failure of Mrs. Marie Sommers Hunt to take the stand. Solicitor for petitioner insists that this Court “ proceeded to heap the blame upon attorney for appellant for appellee’s failure to testify.” We certainly did not intend to heap any blame upon solicitor for appellant. The following is the colloquy which transpired relating to the failure of Mrs. Hunt to take the stand:

“THE COURT: Mr. Batchelor, do you intend to put the defendant, Mrs. Marie Sommers Hunt on the stand in this case?

MR. BATCHELOR: We can’t do that now. She can’t take the stand. She is precluded.

THE COURT: You don’t intend to put her on?

MR. BATCHELOR: If Mr. Taylor objects, I don’t know that I can.

MR. TAYLOR: It is not a question of objecting. It is a rule of law.

THE COURT: If you wanted to put her on, you should have put her on first. Let’s see what happens. I am afraid I’m going to have—

MR. TAYLOR: (Interposing) there is not any question in my mind because I have had it come up' before. That is the reason I had Mrs. Phillips go out, even though she is a party.

THE COURT: There was in Section 8 a charge of fraud and conspiracy. Is there any proof on that?

MR. TAYLOR: I can’t prove it without her.

THE COURT: You have the burden, Mr. Taylor.

ME. TAYLOE: The burden is on me, yes, sir, bnt there are some things yon can’t prove by yonr own witnesses. If she doesn’t take the stand, I have no way of proving it.

THE COUET, All right.”

This member of the Court knows of no rule of law that in a civil case the defendant must testify, if at all, before his other evidence is presented. In criminal cases if the defendant testifies in his own behalf, he must do so before any other testimony is heard for the defense. T.C.A. Section 40-2403. This statute does not apply to defendants in civil eases. Gilreath, Aderholt, Caruthers History of a Lawsuit, 8th Edition, Section 330, page 379.

Apparently His Honor the Trial Judge, the solicitor for the complainant and the solicitor for defendant, all thought that the defendant, Mrs. Hunt, was precluded from testifying because she was not put on as the first witness for the defense. However, if the solicitor for complainant felt that he needed the testimony of Mrs. Marie Sommers Hunt so badly he had two courses to follow: (1) He could have announced a waiver of any objection to Mrs. Marie Sommers Hunt being offered as a witness on her own behalf. (2) He could have called Mrs. Marie Sommers Hunt as a witness for the complainant and cross-examined her as a hostile witness.

It may well be that Mrs. Marie Sommers Hunt was not offered as a witness in her own behalf because of the probable embarrassment from the cross-examination by Mr. Taylor. Solicitor for complainant had already proven that her first husband continued to live in the home after her divorce from him and second marriage to Mr. Hunt. Solicitor for appellee has, in his reply to the petition to rehear, cited to this Court for the first time T.C.A. Section 24-104 which is as follows:

“Transactions with mentally incompetent party. It shall not be lawful for any party to any action, suit or proceeding to testify as to any transaction or conversation with, or statement by, any opposite party in interest, if such opposite party is incapacitated or disqualified to testify thereto, by reason of idiocy, lunacy, or insanity, unless called by the opposite side, and then only in the discretion of the Court. Provided, if a corporation be a party, this disqualification shall extend to its officers of every grade and its directors. Provided, further, that in actions for divorce either party shall be at liberty, as a matter of right, to testify to all transactions between them, including such as may occur by virtue of the marital relation. ’ ’

"We find it unnecessary to construe this statute and determine judicially whether or not Mrs. Hunt could have legally testified as a witness in her own behalf over the objection of solicitor for complainant. Such an opinion would be dicta. We adhere to our former holding that the presumption of adverse testimony on the part of Mrs. Hunt never came into being.

If we assume that Mrs. Hunt was not formally offered as a witness in her behalf because of her fear of rigid cross-examination from solicitor for complainant and because she would give evidence of her husband’s mental capacity which would be adverse to her case we still are of opinion that such presumption of adverse testimony would not be sufficient to overcome the finding of fact of the Trial Court and of this Court from uncontradicted testimony that Mr. Hunt’s marriage in 1958 was valid. If we further assume that he was incapable of marriage at the time of the ceremony, by drugs or otherwise, we still find that on many occasions thereafter he had periods of lucidity and fully understood the nature of the marital contract and in all things ratified and approved the marriage ceremony.

We have reread our former opinion in this cause, we feel that we have reached the correct result. The petition to rehear is respectfully denied.

Avery, P. J., (W. S.), and Bejach, J., concur.