Summary
In Anderson v. Anderson, 190 Miss. 508, 513, 200 So. 726, 728, this Court said that "the corroborating evidence will be sufficient if it prove such substantial facts and circumstances as will serve to engender in a sound and prudently cautious mind a confident conclusion that the testimony of the complainant is true in all essential particulars".
Summary of this case from Howell v. HowellOpinion
No. 34470.
March 10, 1941.
1. DIVORCE.
On appeal from decree granting divorce, reviewing court took testimony of complainant as true and as being without exaggeration, and supplemented it with all reasonable inferences and deductions which the chancellor might have drawn from that evidence.
2. DIVORCE.
Divorce will not be granted on the uncorroborated testimony of complainant except where no corroborating proof is reasonably possible, in its nature or because of isolation of the parties (Code 1930, sec. 1416).
3. DIVORCE.
Where divorce may be granted without corroboration of complainant because no corroborating proof is reasonably possible, cross-examination of complainant by opposite party or the court or both must be so searching and so thoroughly met in word and in demeanor by complainant as to bring the facts clearly within the statutory grounds and convince the chancellor clearly and conclusively that asserted facts are true in all essential respects.
4. DIVORCE.
Where husband and wife had lived throughout their married lives in a large and closely settled town, and had moved almost daily among many who could hardly have escaped observation of facts to corroborate husbands' charge of cruel and inhuman treatment, corroboration of husband was reasonably possible and hence was required (Code 1930, sec. 1416).
5. DIVORCE.
Evidence is sufficient to corroborate complainant in divorce suit if it proves such substantial facts and circumstances as will engender in a sound and prudently cautious mind a confident conclusion that complainant's testimony is true in all essential particulars and is not the exaggerated product of wishful mental processes often presented in divorce cases.
6. DIVORCE.
Evidence corroborating husband held insufficient to warrant grant of divorce to husband for habitually cruel and inhuman treatment.
7. Whether chancellor will call in another chancellor on ground of his own disqualification or will certify his disqualification to the Governor for appointment of a special chancellor is a matter pertaining to the administrative functions of his office and is not reviewable (Code 1930, secs. 737, 738).
APPEAL from the chancery court of Lee county, HON. HOLLIS BROWN, Special Chancellor.
Lester G. Fant, Sr. and Jr., of Holly Springs, for appellant.
There was no proof on which divorce could be granted.
No habitually cruel or inhuman treatment was shown by evidence.
Russell v. Russell, 157 Miss. 425; Amis, Divorce and Separation, Secs. 104, 114; Humber v. Humber, 109 Miss. 216; Evans v. Evans, 2 Hagg (Eccl. Rep.) 310; Manning v. Manning, 160 Miss. 318; Johns v. Johns, 57 Miss. 530; Price v. Price, 181 Miss. 539.
No causal relation between conduct and separation was shown by evidence.
Amis, Divorce and Separation, Sec. 123.
Complainant's evidence showed that he was cause of and participated in difficulties of which he complained.
Ammons v. Ammons, 144 Miss. 314; Long v. Long, 160 Miss. 492; Amis, Divorce and Separation, Sec. 124; Price v. Price, 181 Miss. 539.
W.C. Sweat, of Corinth, for appellee.
The testimony of the appellee was corroborated by the negro servant.
As to the effect that appellant's conduct had on the health of the appellee, he was corroborated by Dr. Trice, who testified that his nervous condition was getting worse before the separation and it was better after the separation.
In order to justify a divorce on the ground of habitually cruel and inhuman treatment it is not necessary that the acts of alleged cruelty shall be malicious but the acts are to be judged by the effect produced and the motives prompting them are immaterial. It is not necessary that danger to life and health in fact exist, but if the acts of cruelty are such as to create a reasonable apprehension of such danger relief should be granted.
McNeill v. McNeill, 125 Miss. 277, 87 So. 645; Humber v. Humber, 109 Miss. 216, 68 So. 161; Price v. Price, 181 Miss. 539, 179 So. 855; Russell v. Russell, 157 Miss. 425, 128 So. 270.
The record presents a controverted question of fact, and the chancellor's findings thereon are conclusive on appeal.
Smithson v. Smithson, 113 Miss. 447, 74 So. 149; Heard v. Cottrell, 100 Miss. 42, 56 So. 277; Lott v. Hull, 104 Miss. 308, 61 So. 421; Grace v. Pierce, 127 Miss. 83, 90 So. 590; Scott v. Perry, 140 Miss. 452, 106 So. 12; Sellers Motor Company v. Champion Spark Plug Co., 150 Miss. 473, 116 So. 833; Babcock v. Holloway, 140 Miss. 120, 104 So. 696, 105 So. 739; Austin v. Page et al. (Miss.), 169 So. 671.
Argued orally by Lester G. Fant, Sr., for appellant, and by W.C. Sweat, for appellee.
The husband sued for a divorce and the ground was the charge of habitually cruel and inhuman treatment. From a decree sustaining the bill the wife has appealed.
The attitude of the law of this State with respect to that ground has been reviewed and stated in Amis on Divorce and Separation, Sections 104-125. With this attitude of the law in mind and taking the testimony of the complainant as true and as being without exaggeration, and supplementing it with all the reasonable inferences and deductions which the chancellor might have drawn from the evidence, some of us are of the opinion that a case for relief has been made out, although barely so, while others of us are of the opinion that to make the most of that testimony, it is still insufficient.
In this situation we have elected to proceed upon the question of corroboration. The latest texts are not in entire agreement upon that point and the cases from the various jurisdictions are not in harmony; but an examination of them and the comments of annotators will disclose, as we think, that the weight of authority supports the rule that, with the exceptions hereinafter to be stated, a divorce will not be granted on the uncorroborated testimony of the complainant. 19 C.J., pp. 133, 134; 4 Ency. Ev., pp. 793, 794; notes Ann. Cas. 1913B, 3-14; 25 L.R.A. (N.S.) 45, 46. Compare 17 Am. Jur., p. 337; Amis on Divorce and Separation, Sec. 260.
So far as we can find, no case in this State has dealt with the precise question. We know, however, that it has always been the generally accepted view of the bench and bar that the rule as stated does prevail in this jurisdiction save in a case where, in its nature or owing to the isolation of the parties, no corroborating proof is reasonably possible. This view has had a large measure of confirmation in the fact that ever since courts were given jurisdiction in this State to grant final decrees of divorce, the statutes have carried the provision that although the complainant must personally swear to the bill, it shall not be taken pro confesso. Section 1416, Code 1930.
Upon all the considerations aforementioned we now hold that the rule, with its exceptions, as stated in the foregoing paragraphs is the rule which must be applied and followed in this State. And in those rare cases coming within the exceptional allowance, the cross-examination by the opposite party or by the court or both must be of such a searching nature, and that examination must be so thoroughly met in word and in demeanor by the complainant as to bring the facts clearly and undoubtedly within the statutory ground or grounds and also must be such as shall be sufficient to actually convince the chancellor clearly and conclusively that the asserted facts are true in all essential respects.
The parties here involved have lived throughout their married lives in a large and closely settled town; they have moved almost daily among many who, in the various relations of life, could hardly have escaped observation of corroborative facts and circumstances. It is not a case where corroboration was not reasonably possible, from which it follows that corroboration was required; and this presents the question whether the corroboration introduced in this record was sufficient.
An examination of the cases will disclose that some of the courts have held that the corroborating evidence must be adequate within itself to establish the asserted ground for divorce. 4 Ency. Ev., p. 795; notes Ann. Cas. 1913B, 9. Others, and these seem to be in the majority, by various forms of expression support the conclusion that the corroborating evidence will be sufficient if it prove such substantial facts and circumstances as will serve to engender in a sound and prudently cautious mind a confident conclusion that the testimony of the complainant is true in all essential particulars, and is not the exaggerated product of those wishful mental processes which passion and the consuming present desire for the relief prayed, so often present in this type of cases. See the text and notes 19 C.J., pp. 134, 135, Sec. 349.
We adopt the view of the authorities which support the rule as last stated, and have examined the so-called corroborating evidence in this record in that light; and having so done, we are obliged to say that it is not sufficient.
The conclusion which we have reached renders it unnecessary to consider the alleged defects in the bill with which much of the argument has dealt; and we do not overlook what was said in the oral argument about the recusation in this case of the chancellor of the district and the appointment of a special chancellor. Whether the chancellor will call in another chancellor under Section 737, Code 1930, or whether he will certify his disqualification to the Governor for the appointment of a special chancellor under Section 738, Code 1930, is a matter which pertains to the administrative functions of his office, and is not reviewable by us.
That part of the decree which fixes the allowances for support and maintenance of the wife will not be disturbed by anything said herein, and a fee of seventy-five dollars is allowed her for payment to her solicitor for services on this appeal, and the order entered here will carry the proper provisions in these respects.
Reversed and remanded.
Anderson, J., took no part.