WALTER WIRZ, SR., Appellant, v. BERTHA WIRZ, Respondent.
Civ. No. 14196
First Dist., Div. Two.
Feb. 21, 1950.
96 Cal.App.2d 171
Some point is made by defendants that the board subsequently accepted the map dedicating this strip without rescinding its former action rejecting it. The stipulation of facts does not completely cover this point. The minutes of the board do show that by resolution the offer of dedication was finally accepted and the trial court found that the board did rescind its action of rejection and accepted the offer. Even though the procedure adopted may have been irregular we are not prepared to hоld that a recision of the former action was not effected by the action of the board in ultimately accepting the continuing offer to dedicate.
Judgment affirmed.
Barnard, P. J., and Mussell, J., concurred.
Appellants’ petition for a hearing by the Supreme Court was denied April 20, 1950. Carter, J., and Schauer, J., voted for а hearing.
Louis B. Dematteis, District Attorney, and Elinor Louise Falvey, Deputy District Attorney, for Respondent.
NOURSE, P. J.—Plaintiff sued for divorce charging his wife with “incurable insanity” under the provisions of
The code section reads in part: “A divorce may be granted on the grounds of incurable insanity only upon proof that the insane spouse has been confined to an institution ... for a period of at least three continuous years immediately preceding the filing of the action and upon the testimony of a member of the medical staff of said institution that such spouse is incurably insane.” The section requires the court in grant-
To prove the issue of “incurable insanity” the plaintiff offered the evidence of Dr. Walter Rapaport, Superintendent and Medical Director of Agnew State Hospital where dеfendant had been confined since December 15, 1938, under commitment by the superior court. The doctor testified that, in his opinion, the patient would continue to get progressively worse, that “in the realm of reasonable probability, that will be the course.” Question: “[I]t is your opinion, is it not, that she is incurably insane and will never be released?” Answer: “That is my opinion.” On cross-examination Dr. Rapaport testified in answer to a question by the court: “What is your diagnosis, Doctor?” Answer: “The diagnosis is manic depressive; and then they have recurrences. It used to be called circular insanity in the old days, but the condition, if it progresses and remains without improvement over a period of years, indicates a chronic form of manic depressive, from which they do not get well.” The trial court did not find that any of this testimony was untrue. Its decision was based upon the ruling that it was necessary for plaintiff to prove that defendant was “absolutely, incurably insane; and I don‘t think any human being can say that about anybody.”
The finding of fact on this issue is “That it is not true and that it is not sustained by the evidence submitted that the said defendant BERTHA WIRZ is incurably insаne.”
The question presented here is whether the finding that defendant was not incurably insane is contrary to the evidence where the member of the medical staff testified that according to his best opinion defendant was incurably insane, but that he could not go beyond the realm of reasonable probability.
There are no California cases with respect to the proof of incurable insanity and very few outside this state. The authority nearest in point, although there still is a minor distinction, is Tipton v. Tipton (1949), 309 Ky. 338 [217 S.W.2d 799]. As in our case, the trial judge, who disagreed with the statute рermitting divorce on the ground of incurable insanity, denied a divorce where the experts testified that according to their opinion defendant would probably not re-
There is another line of cases which has led to judicial discussion of “incurability.” A Colorado statute makes “оbtaining a fee on the representation that a manifestly incurable disease can be permanently cured” a ground for revocation of a medical license. In Graeb v. State Board, 55 Colo. 523 [139 P. 1099, 1101], the Supreme Court of Colorado held 4 to 3 that that provision was invalid for uncertainty because, among other grounds, incurability could be no more than a matter of well-grounded opinion and it could not be said at any point short of death that it is a “manifest” fact. The minority argued that the statute should be interpreted more widely according to its intent to proteсt hopeless patients from being defrauded by physicians. Both in the Graeb case and in Freeman v. State Board of Medical Examiners (1915), 54 Okla. 531 [154 P. 56], where a statute of the same tenor as the one of Colorado did not contain the word “manifest,” the principal question was whether the statute applied to promising care to a patiеnt ill in an incurable degree from an illness not necessarily incurable, like tuberculosis. The Oklahoma Court expressly followed the Colorado minority and held that an interpretation according to legislative intent and purpose required the right to revoke the licensе of a phy-
We are in accord with the ruling in Tipton v. Tipton, supra, although there is this small distinction that the Kentucky statute expressly states that it is sufficient that at least two psychiatrists declare that “in their opinion” the insanity is permanently incurable. Although our
As pointed out in Tipton v. Tipton and Graeb v. State Board, supra, with respect to incurability of insanity no highеr degree of proof than well grounded opinion evidence in the light of present day medical knowledge can be obtained. To require more certainty is unreasonable and would frustrate the intent of the Legislature. And it is said: “the objective sought to be achieved by a statute as well as the evil to be
The question remains whether the court was bound by the expert testimony of Dr. Rapaport. In the Dodrer case (37 A.2d at page 922) it was held that although the statute requires the affirmative opinion of certain experts, such opinion is not conclusive on the court. This is in accоrd with the general rule as to opinion evidence in California which is held not to be conclusive. (Spencer v. Collins, 156 Cal. 298, 307 [104 P. 320, 20 Ann. Cas. 49]; May v. Farrell, 94 Cal.App. 703, 715 [271 P. 789]; Bernstein v. Bernstein, 80 Cal.App.2d 921, 925 [183 P.2d 43]; 10 Cal. Jur. 971.) But in Estate of McCollum, 59 Cal.App.2d 744, 750 [140 P.2d 176], the only medical expert testified that Mrs. McCollum was incompetent to make a will. The court said: “While this opinion was entitled to be carefully weighed by the trial judge it was not conclusive on the subject, . . . and like the evidence of any other witness could be rebutted by other satisfactory evidence.” But in our case there is no rebutting evidence whatever. The rule that uncontradicted testimony of a witness, in no way impeached or discreditеd, may not be arbitrarily disregarded (Mantonya v. Bratlie, 33 Cal.2d 120, 127 [199 P.2d 677]) applies also to medical expert opinion evidence. (32 C.J.S. 397; Levey v. Minott, 214 App.Div. 192 [211 N.Y.S. 883].) In the Mantonya case our Supreme Court said: (p. 127) “where there is any real conflict in the evidence the finding of the trier of fact is conclusive. But the trier of fact is not entitled, аrbitrarily or upon mere caprice, to disregard uncontradicted, entirely probable testimony of unimpeached witnesses.” The rule is pertinent here because the trial judge expressly commended the expert witness for his testimony and stated that he rejected it because he did not “like the policy of the law. I think it is the most unjust law ever enacted, and until it is proved this decree is denied.”
On the second ground little need be said. If the trial court was not satisfied with the showing of plaintiff‘s ability
The evidence of plaintiff‘s ability to support defendant was meager and unsatisfactory as proof. The complaint alleged that the parties оwned community property consisting of the home in Redwood City and that plaintiff had the ability to and was willing to support the defendant “for the rest of defendant‘s life.” The ownership of the realty was conceded. Proof was made that plaintiff was employed at wages оf $1.88 an hour with reasonable expectancy that the employment would continue. There was no proof of the value of the real property or of the liquidable value of defendant‘s interest therein. There was no offer to post a bond, and no suggestion of plaintiff‘s ability to secure payment of the costs of defendant‘s support. It was shown that for the past 10 years she had been under the care of the state and that nothing had been paid by plaintiff for that care. Clearly the purpose of the statute is to permit а bond when the court is not satisfied with the proof that plaintiff‘s ability to support is absolutely certain. The power of the court under this section is fully considered in Tripoli v. Crivello, 88 Cal.App.2d 760 [199 P.2d 726], where the community property was ordered sold and the wife‘s share put in trust to cover the cost of her maintenance in the state institution. This provision is designed to make the statute available to those in poor financial circumstances as well as to those who have ample funds to pay for their separation from an insane spouse.
However, since the rule of procedure is settled that a finding of the trial court may not be disturbed on appeal when supported by competent evidence, we must hold that the finding that plaintiff‘s ability to support the defendant was not proved is a finding on a material question of fact which is just as binding аs an affirmative finding that a material issue has been proved.
Judgment affirmed.
Goodell, J., concurred.
DOOLING, J.—I concur. While I appreciate the propriety of the Legislature‘s making any reasonable provision for the future protection of the insane spouse and of the state where a divorcе is granted on the ground of incurable insanity, I question the wisdom and justice of making that provision so