Guy P. DECKER, Administrator of the Estate of M. V. Decker, Deceased, Appellant,
A. I. RAMENOFSKY and Elizabeth Ramenofsky, his wife, and Harry E. Davis, Appellees.
Rehearing Denied May 4, 1962.
[91 Ariz. 98] Marshall W. Haislip, Phoenix, for appellant.
Spector & Johnson, Phoenix, for appellees.
ROBERT O. ROYLSTON, Superior Court Judge.
Appellant, Guy P. Decker, Administrator of the Estate of M. V. Decker, Deceased, brought this action against A. I. Ramenofsky and his wife, Elizabeth, for cancellation of a deed, and against Harry E. Davis for return of a real estate broker's commission. The sole question at the trial was the mental competency of the decedent to execute a deed. An advisory jury found that the decedent was mentally competent to execute the deed. Thereafter, a judgment was entered in favor of the defendants, and this appeal resulted.
Although appellant's brief contains seven assignments of error, these actually fall into three questions to be answered by this Court:
1. Was there sufficient evidence adduced to support the finding by the jury and the judgment entered by the court?
2. Were certain instructions erroneous and, if so, was that error prejudicial?
3. Did the court err in permitting an expert witness to answer certain hypothetical questions and, if so, was that error prejudicial?
The questions will be considered in the order stated.
During the eight days of trial, both plaintiff and defendants presented many witnesses whose testimony was highly conflicting. We have repeatedly held that we will not weigh the evidence when it is conflicting, and the decision of the trial court will be sustained if there is sufficient evidence to support it. Odom v. First National Bank of Arizona, 85 Ariz. 238, 336 P.2d 141; Bank of Arizona v. Harrington, 74 Ariz. 297, 248 P.2d 859.
While appellant exhaustively attacks the sufficiency of evidence, we think it is clear from examination of the entire record that there is substantial evidence to support the judgment. Decedent executed the deed under consideration on November 8th, 1955, at a time when he was about 86 years of age. Prior thereto in February of 1952, he had suffered a stroke which impaired his walk and speech. He had been for many years a sergeant-at-arms in the State House of Representatives. Certain members of the House during the 1953-1954 session were [91 Ariz. 99] called as witnesses and testified concerning his mental condition during 1953-1954. Their testimony was that he was a competent, independent, stern person, that while he had suffered a physical impairment from a stroke several years before, he did not thereafter have any personality changes, that he recognized some 80 members of the House through February of 1954. The nurse who attended decedent at St. Luke's Hospital testified that at about the time the transaction was consummated decedent was alert and coherent, and that she did not observe any psychiatric traits. Dr. Maier Tuchler, a practicing psychiatrist, testified that decedent was suffering from 'simple senility', that he could not find evidence of arteriosclerosis, senile psychosis, senile dementia, psychotic behavior, delusions, lack of orientation, failure of judgment, or deficiency in capacity to reason.
Appellant argues that it must be established that decedent has the mentality to know the probable value of his property, the location, the ability to weigh and consider the advantage of selling his property, or the disadvantage of not selling and holding his property. Wholly aside from the shift in the burden of proof implied from appellant's argument, the foregoing testimony concerning decedent's unimpaired mental condition suggests that he was capable of understanding and appreciating the nature and effect of the execution of the deed.
Plaintiff contends that certain instructions given to the jury were erroneous. This being an equity case, it is unnecessary to set out the instructions complained of, or to pass on their correctness. This Court stated in Wilson v. Coerver, 35 Ariz. 488, 279 P. 253, as follows:
'The third assignment, that the court erred in its instruction, is immaterial. In an equity case, where the verdict is merely advisory, by the overwhelming weight of authority, even where the judge adopts the answers made by the jury, the losing party may not complain of error in the instructions, since the ...