Smith v. Smith

• Decision Date: 26 October 1950
• Docket Number: 5 Div. 487
• Citation: 254 Ala. 404,48 So.2d 546
• Parties: SMITH v. SMITH.
• Court: Alabama Supreme Court

Page 546

48 So.2d 546

254 Ala. 404

SMITH v. SMITH.

5 Div. 487.

Supreme Court of Alabama.

Oct. 26, 1950.

L. J. Tyner, of Opelika, and Martin, Turner & McWhorter and J. C. Blakey, of Birmingham, for appellant.

Glenn & Glenn and Walker & Walker, of Opelika, for appellee.

STAKELY, Justice.

On December 9, 1948 Jesse W. Smith, Jr. (appellee), a man approximately 50 years of age and who is the only child of Jesse W. Smith, Sr. (appellant), filed in the Probate Court of Lee County, Alabama, a petition of inquisition seeking to have his father declared to be of unsound mind. The case came on for hearing before a six man jury on the petition of appellee and appellant's answer denying each and every allegation of the petition. At the conclusion of the evidence the jury rendered a verdict finding the allegations of the petition true and that appellant was of unsound mind. Pursuant to such verdict the court on January 21, 1949 entered a judgment finding appellant to be of unsound mind. On January 25, 1949 Sam Morgan, a disinterested person, was appointed guardian of the estate of appellant, the appellee having waived his right as next of kin to such appointment. The appellant's motion for a new trial was overruled and the appellant prosecutes this appeal.

Motion to Dismiss the Appeal.

The case is submitted in this court not only on the merits but on the appellee's motion to dismiss the appeal. The motion is based on the theory that the appeal was not taken in the name of Jesse W. Smith, Sr., by next friend or general guardian as provided by § 786, Title 7, Code of 1940, and because the record does not show that the appeal was in fact taken by appellant as provided by § 792, Title 7, Code of 1940.

The record shows that a bond for costs of appeal was filed containing recitals that judgment was rendered adjudging Jesse W. Smith, Sr. to be a person of unsound mind, that judgment was rendered overruling the motion for a new trial filed by the respondent Jesse W. Smith, Sr. and that Jesse W. Smith, Sr. has taken an appeal to the Supreme Court of Alabama from both of the aforesaid judgments. The bond was executed by L. J. Tyner, attorney for Jesse W. Smith, Sr., principal, and by two persons as sureties. This bond was taken and approved by the Judge of Probate.

It is vigorously contended that § 786, Title 7, Code of 1940 provides the exclusive method by which an appeal can be taken to this court in a proceeding of the kind now under consideration. Of course an appeal is statutory and no appeal lies unless provided by statute, State v. Seminole Bottling Co., 235 Ala. 217, 178 So. 237, but we do not think that the motion to dismiss the appeal is well taken. There is no requirement in § 786, Title 7, Code of 1940 that the appeal in a case of this kind must be taken by the next friend or general guardian or guardian ad litem. This section merely provides that such a representative may take an appeal.

In § 11, Title 21, Code of 1940, it is contemplated that the alleged non compos mentis may be represented by counsel. It is only when such person is not represented by counsel that the court is obligated under the statute to appoint a guardian ad litem to represent and defend such person. It is obvious that it is the duty of counsel to represent and protect the interests of the person alleged to be of unsound mind, just as if counsel was a guardian ad litem. When this statute is taken in connection with § 782, Title 7, Code of 1940, it is clear to us that the appeal, as was done in the present case, may be taken by counsel on behalf of the respondent by giving security for the costs of the appeal to be approved as provided in the statute. This section provides that the appeal be taken by the appellant or 'some one for him'. As pointed out this is what the respondent did in the present instance.

Furthermore the appeal here is for the purpose of reviewing the validity or legality of the judgment adjudging the respondent to be of unsound mind. Ordinarily it is true that one adjudged a non compos mentis can only act through a recognized representative but this is not the case where the very object of the action is to determine whether the person alleged to be of unsound mind is in fact a person of unsound mind. Shapter v. Pillar, 28 Colo. 209, 63 P. 302.

The motion to dismiss the appeal must be overruled.

I. The appellant urges with great earnestness that the trial court was in error in overruling the motion for a new trial because the verdict of the jury was contrary to the great weight of the evidence. Where there is evidence which if believed justifies the verdict, a motion for a new trial is properly overruled. Johnson v. Louisville & Nashville R. R. Co., 240 Ala. 219, 198 So. 350; Kurn v. Counts, 247 Ala. 129, 22 So.2d 725. Verdicts are presumed to be correct and no ground of new trial is more carefully scrutinized or more rigidly limited, than that the verdict is against the evidence. Cobb v. Malone, 92 Ala. 630, 9 So. 738. It is recognized by this court that when the presiding judge refuses, as here, to grant a new trial, the presumption in favor of the correctness of the verdict is strengthened. Bell v. Nichols, 245 Ala. 274, 16 So.2d 799; Southern Railway Co. v. Kirsch, 150 Ala. 659, 43 So. 796.

It is well to keep in mind that there was no burden upon the appellee to show in the court below that the appellant was a lunatic or an idiot as those terms are ordinarily accepted. As early as 1870 the Supreme Court of Alabama following the text of Story on Eq., § 1365, announced the following rule applicable to this case.

'The commission (of lunacy) is not confined to idiots or lunatics, strictly so-called; but in modern times it is extended to all persons who, from age, infirmity, or other misfortune, are incapable of managing their own affairs, and therefore are properly deemed of unsound mind, or non compos mentis.' Fore v. Fore, 44 Ala. 478.

The test of incompetency has been well stated as follows: 'It is sufficient if, for any cause, his mental faculties have become so impaired as to make him incapable of protecting himself or properly managing his property or affairs, and where, by reason thereof, he would be liable to be deceived or imposed on by artful or designing persons.' 44 C.J.S., Insane Persons, § 11, pp. 64-65.

Of course it should never be forgotten that the right to control one's property is a sacred right which should not be taken away without urgent reason. In re Mills, 250 Wis. 401, 27 N.W.2d 375.

There was much evidence introduced on both sides of the case. It would serve no good purpose to attempt to set it all out here in detail. For purposes of this discussion evidence favorable to the petitioner may be summarized as follows. The appellant Jesse W. Smith, Sr. is 77 years of age and has for many years resided in Opelika, Alabama. His wife had been dead for about three years. He had been a shrewd business man and had accumulated an estate in cash, government bonds and real estate worth approximately $100,000. He owned and for many years operated a hotel in Opelika known as the Park Hotel. He has only one child, a son Jesse W. Smith, Jr., the appellee, who has a wife and two children, a daughter about 21 years of age and a son 7 years of age. This granddaughter is married and has two small children. The wife of appellant's son worked at the hotel for about 15 years without pay until about two years before this suit was instituted. The appellant deeded to her a home in Opelika worth about $10,000 and gave his son money on various occasions aggregating $1750.00.

Tendencies of the evidence show that the appellant's accumulation of property was considerably due to his wife's constant, unpaid, heavy work at the hotel for many years. Tendencies of evidence further showed that she died from causes brought on by malnutrition. Tendencies of evidence further showed that the appellant showed moral and mental deterioration. He became enamored of a certain woman and his conduct was such that his wife was afraid he was going to kill her. Without cause he demanded a divorce from his wife. He then took up with another woman who lived in Opelika. He told his wife that he wanted her to get out and let him marry this woman and that he wanted to give her all the property. His wife, although a sick woman, refused to do this, saying that she had helped him to make what he had and that she was not going to get out and let another woman have it.

During the last illness of his wife he insisted that he and she live in the cafe part of the hotel, a large room 25 feet by 60 feet with a showcase window therein. The cafe at that time was not being operated. His wife was compelled to occupy a single narrow cot with appellant, although there were approximately 15 furished, unoccupied bedrooms in the hotel, at least one of which was on the first floor, which had been previously occupied by appellant and his wife for about 20 years. Although he was a man of considerable means and although both he and his wife were quite sick, he did what cooking was done, ordering a few outside meals, but living chiefly on sandwiches, crackers and canned goods. Numerous friends visited appellant and his wife during this period, interested themselves in their behalf and got word of their condition to appellant's son, the appellee, who was at this time doing war work in Key West, Florida in the Navy Yard. These persons testified that the appellant was a man of unsound mind.

When he received word of the condition of his parents, the appellee returned to Opelika and carried them to his home in Key West where both recovered strength. On this trip, however, the appellant suffered a cerebral hemorrhage due to arteriosclerosis, so that there was an impediment in his speech which tendencies of evidence showed had some effect on his mentality. The appellant insisted upon returning to Opelika where he had no one to look after him. His wife soon...