Humphrey, In re

• Decision Date: 22 August 1952
• Docket Number: No. 380,380
• Citation: 71 S.E.2d 915,236 N.C. 142
• Court: North Carolina Supreme Court
• Parties: In re HUMPHREY.

Page 915

71 S.E.2d 915

236 N.C. 142

In re HUMPHREY.

No. 380

Supreme Court of North Carolina.

Aug. 22, 1952

Jones, Reed & Griffin, Kinston, and Summersill & Summersill, Jacksonville, for petitioner appellant.

Warlick & Ellis and John R. B. Matthis, Jacksonville, for respondent appellee.

VALENTINE, Justice.

At the trial in the Superior Court, both petitioner and respondent offered evidence tending to support their respective contentions. Three doctors and twelve lay witnesses testified for petitioner, while three doctors and eight lay witnesses testified for respondent. All of the testimony tended to show that respondent in 1938 had suffered a cerebral hemorrhage resulting in partial paralysis, and had suffered a similar attack in 1950. The doctors testifying for petitioner described the physical and, to some extent, the mental condition of respondent, but neither asserted an opinion that respondent was mentally incapable of managing his own affairs. However, several lay witnesses for petitioner advanced the opinion that respondent was mentally incompetent of managing his business affairs. On the other hand, each of the doctors who testified for respondent gave as his opinion that respondent was mentally capable of managing his own affairs. Bruce v. O'Neal Flying Service, 234 N.C. 79, 66 S.E.2d 312. In this opinion all of respondent's lay witnesses concurred. In re Will of Brown, 203 N.C. 347, 166 S.E. 72; State v. Witherspoon, 210 N.C. 647, 188 S.E. 111. Hence, a jury question was squarely presented, Clark v. Laurel Park Estates. 196 N.C. 624, 146 S.E. 584; Pendergraft v. Royster, 203 N.C. 384, 166 S.E. 285, with the burden of the issue upon the petitioner. 28 AJ 752; Odom v. Riddick, 104 N.C. 515, 10 S.E. 609, 7 L.R.A. 118.

Petitioner in the progress of the trial noted a number of exceptions, the first of which relates to the competency of Dr. W. E. Shoemaker to testify as an expert. The qualifications and competency of this witness were fully inquired into by the court and upon all the evidence introduced bearing upon this question, the court held that Dr. Shoemaker was an expert and allowed him to testify as such with respect to the mental condition of respondent. The question of the competency of this witness rested in the sound discretion of the presiding judge and is not reviewable on appeal, except upon a showing that the court abused its discretion, or upon a showing that there was no evidence to support the findings of the court. Pridgen v. Gibson, 194 N.C. 289, 139 S.E. 443, 54 A.L.R. 855; State v. Combs, 200 N.C. 671, 158 S.E. 252; LaVecchia v. North Carolina Joint Stock Land Bank, 218 N.C. 35, 9 S.E.2d 313; State v. Smith, 223 N.C. 457, 27 S.E.2d 114. It appears that the court's discretion in this respect was not abused and that his Honor's ruling was based upon sufficient evidence.

There was no evidence in the record that the respondent was an inebriate, that he suffered from senile dementia, or that he was mentally defective in any way except that which was caused by a cerebral hemorrhage resulting in partial paralysis. Hence it was unnecessary for the court to charge the jury upon any other phase of mental incapacity.

The method by which the court illustrated the meaning of 'the greater weight of the evidence' could not, in view of the whole charge, have prejudiced the petitioner and his exception thereto is without substantial merit.

The petitioner complained of the...