Der Hagopian v. Eskandarian

• Decision Date: 02 July 1959
• Citation: 153 A.2d 897,396 Pa. 401
• Parties: Harry DER HAGOPIAN, Appellant, v. Khatoun Z. ESKANDARIAN, Mihran Eskandarian, Rose Der Hagopian and Louis Der Hagopian.
• Court: Pennsylvania Supreme Court

Page 897

153 A.2d 897

396 Pa. 401

Harry DER HAGOPIAN, Appellant, v. Khatoun Z. ESKANDARIAN, Mihran Eskandarian, Rose Der

Hagopian and Louis Der Hagopian.

Supreme Court of Pennsylvania.

July 2, 1959.

Leave to File Petition for Reargument Denied Sept. 9, 1959.

William R. Cooper, Lansdale, William F. Heefner, Morrisville, for appellant.

Donald B. Smith, Perkasie, for appellees.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK, and McBRIDE, JJ.

BOK, Justice.

This is plaintiff's appeal from a decree that his complaint in equity be dismissed.

The following events form the skeleton of the case:

February 27, 1930, property in Telford, Bucks County, was purchased, in half interests, from Charles C. Goessler and title was taken in the names of Khatoun Z. Eskandarian, wife of Mihran, and Louis Der Hagopian, brother of plaintiff, as straws for plaintiff and the Eskandarians;

April 1, 1930, an option lease was executed by the title holders of the property to plaintiff, giving him the right to buy the Eskandarian interest for $750 within ten years;

July 13, 1935, plaintiff signed an agreement to sell his half interest to the Eskandarians, retaining part of the back property;

September 3, 1935, after bargaining, plaintiff signed another agreement, in place of that of July 13, with, among other things, a 20-year lease under which he could move his bungalow onto part of the land;

November 14, 1935, plaintiff, who was under disability from the First World War, was committed to Allentown State Hospital and later transferred to the Veterans' Administration Hospital at Coatesville, whence he was discharged on November 3, 1936;

November 19, 1935, deeds from Louis and Rose to a straw and by the straw to the Eskandarians having been signed, settlement was held on the September 3rd agreement, and a lease was signed for fifteen years as favorable to plaintiff as the 20-year lease and in place of it;

September 15, 1936, plaintiff was adjudged a weak-minded person by order of the court below and John N. Ouzounian, Esquire, his counsel, was appointed guardian of his estate;

July 17, 1953, the guardian was discharged and plaintiff declared competent;

May 28, 1954, this action was begun, the prayer being for the setting aside of the deeds disposing of plaintiff's half interest, ordering a reconveyance, and directing an accounting of the rents and profits for nineteen years.

Louis Der Hagopian and Rose, his wife, are technical defendants and no relief against them is asked. Louis held title for plaintiff and disposed of it as he directed. The Eskandarians are the real defendants.

There are two questions: whether plaintiff was mentally incompetent on July 13 and September 3, 1935, and whether there is valid after-discovered evidence.

The Chancellor made basic findings that plaintiff was competent, and we see no reason to disturb them.

Mental competence to do business is presumed and the burden lies on him who denies it. Lasky v. Paprocki, 1950, 363 Pa. 50, 68 A.2d 593. The evidence to show incompetence must be 'clear and unquestionable', Elcessor v. Elcessor, 1892, 146 Pa. 359, 23 A. 230; 'positive', Patterson v. Snider, 1931, 305 Pa. 272, 157 A. 612; 'strong, clear and compelling', Masciantonio Will, 1958, 392 Pa. 362, 370, 141 A.2d 362.

Contracts made with the incompetent before his adjudication as weakminded are voidable and can be avoided only on proper showing that he was in fact incompetent at the time. In re Feely's Estate, 1953, 173 Pa.Super. 441, 98 A.2d 738. After the adjudication, transactions with him are presumably invalid. Pennsylvania Co. for Banking & Trusts v. Philadelphia Title Ins. Co., 1952, 372 Pa. 259, 93 A.2d 687. Even a lunatic may be liable if a transaction is for his benefit and there is no evidence of overruling. Wirebach Executor v. First National Bank, 1881, 97 Pa. 543; First National Bank of Birmington v. Fidelity Title & Trust Co., 1916, 251 Pa. 529, 97 A. 75; In re Pfeil's Estate, 1926, 287 Pa. 21, 134 A. 385; Rubins v. Hamnett, 1928, 294 Pa. 295, 144 A. 72.

Further, we can take judicial notice of the fact that not all forms of mental illness hit one like a bolt of lightning, but are often a matter of growth and clouding over. See King v. Humphreys, 1890, 138 Pa. 310, 22 A. 19. Expert testimony is needed when transactions fall within the penumbra between competence and incompetence, when the light of reason may come and go unbidden. Dr. Kressley, one of the commission that found plaintiff weakminded, testified but was not asked about the nature of plaintiff's illness or about lucid intervals.

There is no doubt, after reading this long record, that plaintiff was difficult, increasingly so as the time of his commitment approached. It is the conventional picture of a family, somewhat volatile themselves, doing their best with an intractable member. The Chancellor has expressly found that plaintiff was competent on the date of the two agreements.

Plaintiff contends that the Medical Records of the Veterans' Administration should have been admitted under the Business Records as Evidence Act of May 4, 1939, P.L. 42, 28 P.S. § 91b, and the Federal Official Records Act of May 24, 1951, P.L. 393, 28 P.S. § 121. These records show the following entries '6/4/35-6/21/35. Veterans Administration Facility, Washington, D. C.

'Final Diagnosis.

'1. Dementia praecox, mixed type with strong paranoid trend (not competent). Treated, unchanged.

* * *

* * *

'7/19/35. Rating sheet.

'Investigation report and report of diagnostic center dated 6/13/35 have been noted.

'In compliance with instructions of Board of Veterans' Appeals no rating action is being taken.

'Case should be returned to Board of Appeals for final action.

'10/9/35. Rating sheet. * * *

'Dementia praecox mixed type with strong paranoid trend * * *.

'Competent under R & P 3736 pending follow-up by investigator. * * *

'11/12/35-12/4/35. Allentown State Hospital, Allentown, Pa.

'Diagnosis. Dementia praecox, mixed type.

'12/4/35-3/9/36. VA Hospital, Coatesville, Pa.

'Final Diagnosis.

'1. Dementia praecox, paranoid type. Treated, improved. * * *

'9/9/46-9/30/46. VA Hospital, Coatesville, Pa.

'Diagnosis. Dementia praecox, paranoid type, untreated, unchanged * * *.'

These records were properly excluded. Paxos v. Jarka Corp., 1934, 314 Pa. 148, 171 A. 468; Haas v. Kasnot, 1952, 371 Pa. 580, 92 A.2d 171; Graves v. Graves, 1957, 184 Pa.Super. 265, 132 A.2d 699, 701. In Graves, citing Paxos, the Superior Court said:

'The hospital records should not have been admitted into evidence. The Supreme Court of Pennsylvania pointed out the limits on the admission of such records, as an exception to the hearsay rule, and indicated the probative elements that must be present as follows: (1) They must be made contemporaneously with the acts to which they relate; (2) they must have been made ante litem motam; (3) they must have been made by a person having knowledge of the facts set forth.'

There is no evidence whatever to qualify the records under either Act. Mr. Karet, a lawyer, produced them, and when asked whether he was their custodian he said: 'For the purpose of producing them in court in response to a subpoena I am.' He added that the record bears 'the signatures of the physicians who presumably dictated [them] and approved the report', and that he had no knowledge of the doctors or of their qualifications. Thus there is no...