Guardianship of Carrico v. Bennett

• Citation: 162 Ind.App. 330,319 N.E.2d 625
• Decision Date: 10 December 1974
• Docket Number: No. 3--873A102,3--873A102
• Parties: In the Matter of the GUARDIANSHIP OF Nara D. CARRICO, an incompetent, by Marge Bardon, on behalf of Nara D. Carrico, Petitioner-Appellant, v. Rex E. BENNETT and Mercantile National Bank of Indiana, Respondents-Appellees.
• Court: Court of Appeals of Indiana

Page 625

319 N.E.2d 625

162 Ind.App. 330

In the Matter of the GUARDIANSHIP OF Nara D. CARRICO, an

incompetent, by Marge Bardon, on behalf of Nara D.

Carrico, Petitioner-Appellant, v. Rex E. BENNETT and Mercantile National Bank of Indiana,

Respondents-Appellees.

No. 3--873A102.

Court of Appeals of Indiana, Third District.

Dec. 10, 1974.

Rehearing Denied Jan. 17, 1975.

Foster, Stanish & Kouris, Hammond, for petitioner-appellant.

Richard P. Komyatte, Efron, Efron, & Komyatte, Hammond, for respondents-appellees.

GARRARD, Judge.

Petition was filed to terminate the guardianship of Nara Carrico upon the ground that she was no longer incapable of managing her property and caring for herself. The trial court found that petitioner failed to establish the averments of the petition and entered judgment accordingly.

It is contended the decision is contrary to law and against the weight of the evidence. Appellant concedes, as petitioner, she had the burden of proof. Shafer v. Shafer (1914), 181 Ind. 244, 104 N.E. 507. The appeal is from a negative judgment, and assertion that the decision was against the weight of the evidence presents nothing for review. We will, however, determine whether the evidence was without conflict and led solely to the conclusion opposite that reached by the trial court. Gariup v. Stern (1970), 254 Ind. 563, 261 N.E.2d 578; Houser v. Bd. of Commrs. (1969), 252 Ind. 312, 247 N.E.2d 675.

The evidence was conflicting Appellant's psychiatrist testified that in her opinion the ward was competent. However, non-expert evidence is allowable on issues of insanity or incompetence. Johnson v. Culver (1888), 116 Ind. 278, 19 N.E. 129; Ramseyer v. Dennis (1918), 187 Ind. 420, 116 N.E. 417, 119 N.E. 716. Thus, opinion testimony of a medical expert does not preclude the trier of fact from considering and weighing non-expert evidence when such a matter is in issue. Klinger v. Caylor (1971), 148 Ind.App. 508, 267 N.E.2d 848; Dudley Sports Co. v. Schmitt (1972), Ind.App., 279 N.E.2d 266.

Here petitioner's case in chief consisted solely of the psychiatrist's testimony. Neither the petitioner nor the ward were called. (Both, however, appeared briefly as rebuttal witnesses.)

The ward's son, who was also guardian of the person for Mrs. Carrico, testified in opposition to the petition. While indicating that she had improved both physically and mentally since the inception of the guardianship, he testified that in his opinion she was incapable of handling her affairs. He supported this by relating that Mrs. Carrico was disoriented upon awakening in the morning, and that while she had good days, there were a number of days each month when she would be incompetent. He described numerous occasions when he could not locate her at St. Ann's Home, although she was not signed out. He described her memory failure and related her accusations that he was in collusion with the bank, the judge and respondent's counsel to steal her funds. He related her assertion that all private telephones were being tapped by the federal government. In addition, when Mrs. Carrico was called as a rebuttal witness, she was questioned by the court. She first asserted the guardianship was instituted by her son so he could get her property. She then conceded that he did not have her money, but maintained she had meant her furniture and clothing. When the court inquired why her son would want her clothing, she stated he had instituted the guardianship because he did not want to be bothered with her.

While such evidence may be susceptible to more than one ultimate inference, we cannot say it led solely to the conclusion that Mrs. Carrico was capable of managing her affairs and caring for herself. Indeed there was no direct evidence, other than the psychiatrist's opinion, to establish that she could. Accordingly, the decision may not be overturned on this ground.

Furthermore, as the evidence does not lead solely to the conclusion that Mrs. Carrico was capable of managing her property and caring for herself (despite her age or infirmity), we need not reach appellant's argument that mere old age or physical infirmity cannot sustain the guardianship. Harvey v. Rodger (1924), 84 Ind.App. 409, 143 N.E. 8; Perry v. Perry (1940), 108 Ind.App. 93, 27 N.E.2d 133.

It is also urged that the trial court erroneously required appellant to negative the reasons for the original finding of incompetence rather than simply prove the ward competent at the time of hearing. Certainly, the latter proof is appropriate. Cochran v. Amsden (1885), 104 Ind. 282, 3 N.E. 934. However, from the record it also appears to have been the one applied, since on this issue the trial court advised petitioner she had the burden of establishing the relevant allegations of her petition, and the court expressly found that the averments of the petition had not been sustained. ¹

Appellant next complains of five evidentiary rulings made by the court.

Appellant's psychiatrist testified that she felt her own opinion was reinforced by a letter she had read from a Dr. Husted addressed to an attorney. Dr. Husted did not appear as a witness. Appellant attempted to introduce the letter in evidence. The exclusion of the letter as hearsay was proper.

Appellant objected to cross examination of the psychiatrist regarding the nature and effects of 'cerebral hematoma'. The psychiatrist had stated her opinion that Mrs. Carrico's original disability was organic rather than functional. Since direct examination attributed the original impairment to an organic disorder, it was proper to inquire on cross examination as to the witness' understanding of the nature and the effects of 'organic brain illness.' Louisville, etc. R. Co. v. Wood (1887), 113 Ind. 544, 14 N.E. 572; Stoll, Exr. v. Rich, Exr. (1929), 88 Ind.App. 639, 165 N.E. 67.

The psychiatrist was asked whether she thought it was 'normal' for the ward to resent her son for instituting the guardianship if it were to be assumed that the ward was aware she had suffered an organic brain injury. It was undisputed that the injury had occurred. It was reasonable to infer that the ward was aware of it if she had regained her mental competence. The question was proper in testing the validity of the witness' opinion.

The psychiatrist was also asked two questions regarding whether her opinion would change or be affected if other facts were to be assumed. The complaint is that evidence of the truth of those facts was not produced. We agree that when counsel on cross examination poses questions to the witness asserting the existence of facts not in evidence, he ethically represents to the court and the parties that he will produce evidence of their existence if this is disputed. However, the court is invested with broad discretion regarding the cross examination of witnesses, and this is especially true of expert witnesses. NIPSCO v. Otis (1969), 145 Ind.App. 159, 250 N.E.2d 378; Taylor v. Taylor (1910), 174 Ind. 670, 93 N.E. 9. Here the appellant has failed to disclose how he was harmed by the particular questions asked or the answers given, and we cannot perceive his harm. Accordingly, appellants has failed to demonstrate harmful error regarding these questions. Patrons, etc. v. School City of Kendallville (1963), 244 Ind. 675, 194 N.E.2d 718; Ind.Rules of Procedure, App. Rule 15(D).

At the close of the hearing the court took the case under advisement. In due course the court entered its finding that the averments of the petition were not sustained. It was then ordered that the prayer of the petition be denied and that the respondents recover their costs. Thereafter, on the same day appellant filed her motion to correct errors, she also filed her petition to recover her attorneys' fees and expenses in the prosecution of the petition. The court overruled the motion to correct errors and summarily denied the petition for allowance of fees. Appellant's motion to correct errors addressed to this ruling alleges the ruling was contrary to law. The applicable statute, ² IC 1971, 29--1--18--48 (Burns Code Ed.) provides:

'Any person may file a petition on behalf of the ward, to have him adjudicated competent. If the...