Estate of Gore

119 Cal.App.2d 796 (1953) Estate of CHARLES FRANKLIN GORE, Deceased. VIRGINIA GORE DENTON, Appellant,

v.

JOHN L. GARAVENTA, as Executor, et al., Respondents.

Civ. No. 15670. California Court of Appeals. First Dist., Div. One.

Aug. 21, 1953. William B. Chaplin, Edwards & Friborg and R. Donald Chapman for Appellant.

W. Blair Rixon, Tinning & DeLap and J. Vance Porlier for Respondents.

WOOD (Fred B.), J.

The sole question upon this appeal by the petitioner for revocation of the probate of a will is whether or not the opinion of a licensed physician and surgeon (an eye, ear, nose and throat specialist) concerning the sanity of the decedent was properly admitted in evidence.

The qualifying questions developed the following facts. The witness, Dr. Lowenstein, is a licensed physician and surgeon in this state. He took his medical training at the University of Vienna, graduating with the degree of medicine in 1937; came to this country in June, 1938, and took medical work here; was in Chicago for a short time; came to San Francisco and interned at the city and county hospital during 1938 and 1939; was with the Green's Eye Hospital, San Francisco, for about three years; then practiced in Richmond, California, for a while, doing eye, ear, nose and throat at the shipyard; since then he has been practicing in Pittsburg; limits his practice to eye, ear, nose and throat almost exclusively.

He saw the decedent once, for about 30 minutes, on April 11, 1949, four days after the execution of the will. Decedent came to his office for an examination for his civil aeronautics license, and wanted some glasses. He gave decedent a "complete examination, the long form, blue sheet, and all kinds of questions on there." He said, "I did a complete eye examination [798] with the Green's eye refractor and I checked his eyes, ears, nose and throat. I checked him over completely. As a matter of fact I checked--I remember I put it down here. I checked him. I even checked his urine, and it was negative. There was nothing wrong."

Respondent then asked him, "during the period of approximately 30 minutes that you had Mr. Gore [the decedent] under your observation, and during the course of your examination, would you express an opinion as to whether he was sane or insane?" Appellant objected, saying "He hasn't qualified him as an expert for one thing." The court remarked that it is not necessary to qualify "with acquaintances." Appellant stated, "I know, but in acquaintances they must be intimate acquaintances." The court remarked that it goes to the weight of the testimony and appellant renewed her objection: "I don't think he is even qualified to answer the question, to have the question put in. There is no background for it. I object to it on that ground. This man never saw him but once." The court then overruled the objection and directed the witness to answer.