Ross v. Ross
| Decision Date | 04 February 1936 |
| Docket Number | 26304. |
| Citation | 54 P.2d 611,175 Okla. 633,1936 OK 130 |
| Parties | ROSS v. ROSS. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
I. Marriage by adjudicated incompetent under guardianship is voidable, not void.
II. Cohabitation, after cessation of incapacity, is sufficient defense in action to annul marriage. Section 677, O.S.1931.
III. Letter and copy of records from Veterans' Administration to guardian purporting to give general medical and scientific information concerning ward are hearsay and inadmissible in evidence.
IV. Action to annul marriage because of alleged mental incompetency of complaining party to make marriage contract is equitable, and decree of trial court is reversed because contrary to the clear weight of the evidence.
Appeal from District Court, Cherokee County; W. A. Woodruff, Judge.
Action by Motto Ross, an incompetent and insane person, by J. Walter Davidson, his guardian, against Myrtle Ross. From a judgment for plaintiff, defendant appeals.
Reversed with directions.
Glass & Chappell, of Nowata, for plaintiff in error.
Bruce L. Keenan, of Tahlequah, for defendant in error.
July 18, 1934, Motto Ross, as an incompetent and insane person, by J. Walter Davidson, guardian, sued Myrtle Ross for annulment of the marriage of the plaintiff and the defendant, on the ground that plaintiff at all times since 1919 had been wholly incompetent mentally to enter into said marriage contract.
Myrtle Ross filed a general denial and further pleaded that she and plaintiff were married at Nowata, November 7, 1922; that, if plaintiff was an incompetent person at that time, he was restored to competency by the county court of Cherokee county November 7, 1923, and that he was normal, capable, and competent, mentally and otherwise, and had full possession and control of his mental faculties, until April 18, 1927 that the parties lived, resided, and cohabited as husband and wife continuously until October, 1926; that, if he was incompetent at the time of the marriage, he ratified and confirmed the marriage after his disabilities had been removed. Plaintiff by his reply joined the issues, and upon verbal and documentary evidence the case was submitted to the court. The marriage was annulled, and Myrtle Ross has appealed.
In chapter 13 on the subject of marriage, section 1666, O. S 1931, declares that marriage is a personal relation, arising out of a civil contract to which the consent of parties legally competent of contracting and entering into it is necessary, and that the marriage relation is only to be entered into, maintained, or abrogated as provided by law.
Legislative permission runs to males 21 years of age or over and to females 18 or over who are "not otherwise disqualified." Other primary requirements are a license and a ceremony performed by clerical or official authority with return duly recorded.
In said chapter certain marriages are forbidden in terms more or less positive. Between persons related within forbidden degrees, marriages are declared "incestuous, illegal and void and are expressly prohibited." Miscegenation is denounced as unlawful and is prohibited and penalized. It provides that no persons under the prescribed age "shall enter into the marriage relation," and males under 18 and females under the age of 15 "are expressly forbidden and prohibited from entering into the marital relation" unless with court sanction.
In chapter 3, art. 3, Civil Procedure, dealing with divorce and alimony, section 677 provides that, when either of the parties to a contract shall be incapable, from want of age or understanding, of contracting marriage, the same may be declared void by the district court in an action brought by the incapable party or by his guardian, and that cohabitation, after such incapacity ceases, shall be a sufficient defense to any such action. In the chapter on guardian and ward, under the subject of incompetents and insane, sections 1447-1449 provide that the judge of the county court must appoint a guardian of person and estate if the subject of the inquiry, after full hearing and examination, appears to be "incapable of taking care of himself and managing his property"; that the guardian "has the care and custody of the person of his ward, and the management of all his estate, until such guardian is legally discharged"; that the fact of his restoration to capacity may be judicially determined by the county court; that, "if it be found that the petitioner be of sound mind and capable of taking care of himself and his property, his restoration to capacity shall be adjudged, and the guardianship of such person, if such person be not a minor, shall cease." In the chapter on contracts, section 9404 provides: "After his incapacity has been judicially determined, a person of unsound mind can make no conveyance or other contract * * * until his restoration to capacity is judicially determined." Section 9391 provides that all persons are capable of contracting except minors, persons of unsound mind, and persons deprived of civil rights.
October 31, 1919, said county court appointed Bruce L. Keenan guardian of Motto Ross, an incompetent and insane person. November 7, 1922, Motto and Myrtle were married at Nowata. November 7, 1923, Motto was restored to competency by said county court and adjudicated to be sane and capable of transacting his business affairs. October 6, 1926, the chief of police of Tahlequah petitioned said county court for an order admitting Motto to a state hospital on the ground of insanity. He was committed and has so continued. November 30, 1926, Elizabeth E. Tyeska was by said county court appointed guardian of the person and estate of Motto, but she failed to qualify. April 19, 1927, E. D. Hicks was appointed guardian. January 10, 1931, J. Walter Davidson succeeded Hicks as guardian. May 20, 1931, the guardian filed petition in the county court wherein he alleged that his ward was an ex soldier with total disability and that he was drawing $100 per month compensation. He asked for authority to pay $20 per month to the hospital where his ward was confined, and $50 per month for the support of his ward's wife.
In 1919, after Motto Ross returned to Tahlequah from the army, he sold his land August 4th, 7th and 11th and went to Muskogee, where he killed another negro August 12th. On the testimony of two doctors, on August 13th, he was declared insane, and on August 14th, the Muskogee county court ordered him committed to an insane asylum. See opinion of this court in Keenan, Guardian of Motto Ross, v. Scott, 99 Okl. 63, 225 P. 906, wherein said guardian unsuccessfully sought cancellation of the conveyances above referred to on the ground that the grantor was insane and incompetent at the time of the execution thereof.
Counsel for Myrtle Ross complained of the admission in evidence of a letter dated October 2, 1934, from the Veterans' Administration addressed to the guardian. Said letter gave at great length the medical record of Motto Ross, laboratory reports, comments, diagnosis, treatment recommended, mental, physical, and neuropsychiatric examinations. This evidence was admitted on the theory that it threw light on the mental condition of the plaintiff. We see nothing in the record to lift it above the level of ordinary correspondence between plaintiff's guardian and a third party. No authority for its admission has been cited. In our opinion it was hearsay and should have been excluded. 22 Corpus Juris, 820; section 334, O.S.1931.
The record contains the verbal testimony of twelve witnesses, some of whom expressed their opinion of the sanity or insanity of the plaintiff and most of whom related facts and incidents concerning his mental irregularities and eccentricities, some trivial, others indicative of nervous and mental derangement.
Plaintiff used six witnesses who testified to a variety of incidents which brought them to the conclusion that Motto Ross was incompetent. Their respective opinions were expressed in different ways-two regarded him insane; one considered him incompetent; one thought "he did not act in good mind"; one "never thought Motto was right"; another testified that some times he was all right, but "when spells would come he was off," that "most times" she considered him insane. Each witness related one or more nervous or mental manifestations which tended to support his opinion, nervous, high-tempered, peculiar manner, eyes glassy, would not stand still and talk, put hand to back of head and said it hurt. As to hallucinations, oddities, and eccentricities: In the woods he hitched his horse to a tree and tried to pull it over and broke his doubletree. He became disgusted after bad luck fishing, threw down his line and declared that, if he could not catch them one way, he would another; whereupon he dove into the creek and swam about in the water. He said he heard the (army) whistle to line up, whereupon witness and plaintiff lined up in the woods and plaintiff then asked witness where they were going and at witness' suggestion they went home. He had dreams in which something with fiery breath got after him in the night and kept him from sleeping. He said Sambo (the man he killed in 1919) was after him at night and a little black thing with horns in France disturbed his sleep. He blew his horn a long time then threw it on the floor and stomped on it. He threw rocks at a tree and said the Germans were after him.
In behalf of the defendant, six witnesses, including Myrtle Ross, testified. Defendant testified that she visited her uncle in Tahlequah part of September and October 1922, and saw plaintiff several times; that immediately after their marriage November 7, 1922, they lived at her mother's home in Nowata;...
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