217 S.W.2d 799 | Ky. Ct. App. | 1949
Reversing.
The 1946 session of the Kentucky General Assembly added another ground for divorce to those previously existing by amending KRS
While there have no doubt been some divorces granted under this subsection since its enactment, the question involved has not heretofore reached this Court, since it has no jurisdiction to review a judgment of a lower court granting a divorce. This appeal is prosecuted from a judgment of the lower court denying a divorce on the ground above set out.
"Q. Do you consider the patient incurable at the present time? A. Her present condition indicates that she could probably not make an adjustment outside an institution.
"Q. Do you think that she will spend the remaining days of her life in this institution? A. The present indications are that she will."
Dr. Knepper would not make the flat statement that appellee is permanently and incurably insane any *341 more than he would testify that any of the 1,700 inmates of the mental hospital at Lexington are permanently or incurably insane but that she is as bad off mentally and as incurably insane as the majority of the inmates; that if she recovers her senses and mental poise and adjustment to society, it would be a miracle.
Dr. Lipscomb, also a psychiatrist of experience and now engaged in that capacity at the hospital where appellee is now confined and also has had the opportunity to examine and observe her, testified as follows concerning her:
"Q. What is her mental condition in regard to being a person of sound or unsound mind at the present time? A. I regard her a person of unsound mind, in a badly deteriorated state.
"Q. What do you designate her as being? A. Dementia praecox, hebephrenia type.
"Q. From your present knowledge of her mental illness, do you think she will get better or worse as time goes along? A. My prediction is that this deterioration will continue and that she will remain a patient in this institution.
"Q. Is it your opinion that she will ever be able to recover to the extent that she could return to society and adjust her ways to normal living again? A. I do not think so. In fact, — if you want this —, in fact, I think she will be a patient in this institution until she dies.
"Q. You think her mental condition will be a permanent proposition? A. Yes, sir, I do.
"Q. Dr. Lipscomb, state whether or not you regard Mrs. Tipton's mental condition as permanent and incurable. A. Well, I have already stated that I regarded it as permanent; and, in my opinion, it is incurable. I think the facts, — that she shows marked deterioration and rarely ever speaks in a coherent manner, — in fact, rarely ever speaks at all —, and that she prefers to be secluded in a back room of the ward, that it is devoted to the more severe type of cases — are all evidence to support my opinion that the case is incurable." *342
It is insisted by appellee's attorney that this testimony is not sufficient to prove that appellee is permanently and incurably insane within the meaning of the statute since neither of these witnesses would testify positively and with finality that she is. We do not construe the statute as requiring such absolute testimony. What the statute says is "nor unless the court shall find from the testimony of two or more physicians competent in psychiatry that such insanity,in their opinion, is permanently incurable." (Our emphasis). We think the testimony of the two physicians in this case, who are in position to observe appellee, meets the requirements of the statute. Few physicians would testify positively under oath that any mental condition, or any disease for that matter, is incurable. All they can say is that from their experience and in the light of present day medical knowledge, it is theiropinion that a certain disease is incurable or mental condition is permanent. Many diseases once thought incurable are now curable as medical science advances. If the statute being construed is to have any practical value and accomplish the evident intention of the legislative body, it must be reasonably construed and not given a strained and unnatural construction. We think the expert testimony in this case justifies the court in finding that appellee's condition is permanent and that she will never be able to resume her status as a wife to appellant and that the lower court erred in dismissing appellant's petition. The judgment is therefore reversed with directions to enter another granting appellant the relief prayed for in his petition. In such judgment the court may make such requirements as to appellee's future care and support as the circumstances warrant and may require as a condition of the judgment that appellant execute a bond to the State of Kentucky for the purpose and as provided in KRS
Judgment reversed. *343