Bank v. Ellison , 133 W. Va. 9 ( 1949 )

As an abstract statement of law, I agree with point 6 of the syllabus herein. However, I can not agree with the reasoning in the opinion of the Court that the law stated in point 6 of the syllabus is applicable to the facts presented by the record in this case. In other words, I think that Edna Lockard was qualified to testify as to her transactions with William M. Ellison. In that respect this opinion is written.

At common law a person interested in the outcome of an action, suit or proceeding was under a disability to testify as a witness therein. But such disability, with certain exceptions, has been removed by statute. Code, 57-3-1. One of the exceptions to the curative effect of Code, 57-3-1, relates to the capacity of interested persons to testify "in regard to any personal transaction or communication between such witness and a person at the time of such examination, * * * insane or lunatic". As to such testimony, the common law disability still exists. SeeBank v. Hulme, 117 W. Va. 790, 793, 188 S.E. 225. It is on this exception that point 6 of the syllabus is based.

The general purposes of Code, 57-3-1, have been reviewed by this Court on numerous occasions. It has always been held that the object of that statute is to widen, not to narrow, the competency of witnesses. Crothers v. Crothers, 40 W. Va. 169,174, 20 S.E. 927. It removes, but does not create, disabilities. Gilmer v. Baker, 24 W. Va. 72, 84;Anderson v. Snyder, 21 W. Va. 632. And the statute should be liberally construed to the end that these beneficial objectives be accomplished. Seabright v. Seabright, 28 W. Va. 412, 462.

It is my opinion that a liberal construction of Code, 57-3-1, so as to effectuate the general purposes and objectives heretofore stated, requires that the exceptions therein contained be subject to a strict interpretation. Accordingly, I believe that nothing short of a showing that William M. Ellison was "insane or lunatic" at the time of the examination of Edna Lockard, can disqualify her to testify regarding the same.

However, the proof adduced herein, which is based solely on the order of the County Court of Wood County, shows only that William M. Ellison had been declared "mentally incompetent." Such is a flimsy factual basis for proof of mental incompetency. But it begs the question to conclude therefrom, as does the opinion of the Court, that: "The statement in the record that William M. Ellison had been adjudged to be mentally incompetent means that he had been adjudged to be an insane person. No other reasonable meaning can be given to the words used. The statute provides that the words `insane person' shall include everyone who is an idiot, a lunatic, non compos or deranged. Code, 1931, 2-3-10(n); Hiett v. Shull, 36 W. Va. 563, 15 S.E. 146. It is manifest that the words `mentally incompetent' indicate that the person so afflicted is non compos or deranged and for that reason is an insane person within the meaning of the statute."

Code, 2-3-10(n), cited by the majority, merely states that the words "insane person" include one who is non compos or deranged. The case of Hiett v. Shull, supra, defines insanity, but by no means is authority for the proposition that a mentally incompetent person is insane.

In my opinion, the words "mentally incompetent" are far short of being synonymous with the words "insane and lunatic". To be sure, an insane person or a lunatic is also mentally incompetent. But it does not necessarily follow that a mentally incompetent person is either insane or a lunatic. Mental incompetency may be the temporary result of the use of drugs, or the addiction to the use of intoxicants. It may connote senility, weakness of mind, or mental immaturity. Or it may result from emotional instability. But none of these conditions or results implies insanity or lunacy. See Anderson v. State (Ariz.), 96 P.2d 281; Johnson v. Millard (Neb.), 195 N.W. 485,487; and In re Des Granges' Estate (Cal.App.), 283 P. 103, 105, wherein these distinctions are discussed and applied.

Since the creation of this State, legislative enactments have recognized the distinctions, hereinbefore made, between an insane person and one who is merely a mental defective. Chapter 27, Code of 1931, dealing with the subject, is entitled "Insane Persons and Mental Defectives". Code, 27-8-3, originally enacted in 1921 and last amended in 1937, clearly demonstrates the more recent and continued intention of the Legislature to distinguish between the two phrases, by stating: "There shall be admitted to * * * [West Virginia Training School] * * * any person with mental defectiveness from birth or from an early age, so pronounced that he or she is unable to care for himself or herself and manage his or her affairs with ordinary prudence, and who, because of such mental defect, is a menace to the happiness and welfare of himself or herself, or of others in the community, and requires care, training or control for the protection of himself or herself or of others, and yet who isnot insane. This type of person, commonly classed as feebleminded, including idiots, imbeciles, or morons, shall be known and designated as `mental defectives' * * *." (Emphasis supplied). This distinction is discussed and explained in In re:Wood, 123 W. Va. 421, 424 et seq., 15 S.E.2d 393.

Therefore, it seems imperative to me to conclude that the word "insane", as used in the exception stated in Code, 57-3-1, does not include a "mental incompetent".

Although the opinion of the Court makes no effort to state that a person who is "mentally incompetent" is a "lunatic", it is well to point out that, by legislative enactment, "The word `lunatic' * * * shall be construed to include every insane person who is not an idiot." Code, 27-1-1. Accordingly, the distinctions between a "lunatic" and a "mentally incompetent" person are the same as those between an "insane person" and one who is "mentally incompetent."

Accordingly, I am of opinion that Edna Lockard may testify as to her transactions with William M. Ellison, and I think the opinion of the Court is erroneous in that respect. It follows that under my view of this case, it is unnecessary to discuss and decide the legal proposition stated in point 7, as well as point 6, of the syllabus, although I agree that if William M. Ellison is in fact and law insane or lunatic that the said syllabus points are correct.

Furthermore, William M. Ellison, not having been shown to be insane, is subject to the same rules relative to admissions contained in pleadings as any other sane litigant.

For the aforesaid reasons, I respectfully dissent in part from the Court's opinion.