Conford, Freund and Haneman. The opinion of the court was delivered by Conford, J.A.D.
In this matter defendant failed to file a brief but engaged a lawyer (not his trial counsel), who, without advance application or notice to the court of intention so to do, appeared at the argument and sought leave to present oral argument. In accordance with our settled practice in such cases, the request was denied. Defendant was represented by capable and reputable counsel in the Law Division. The appeal here is only by the plaintiffs, not the defendant.
Defendant had, prior to argument, filed with the clerk of this court a copy of a motion before the United States District Court for the District of New Jersey to enjoin the prosecution of the instant action. The clerk advised him, at the direction of the court, that if he desired to be heard on the motion or the appeal itself he might appear at the hearing of the appeal. He failed to do so. A request by his new counsel to stay the appeal pending the outcome of the motion in the federal court was denied as patently without merit.
We adopt the statement by the trial judge of his findings of fact, conceiving it to be supported by the record, and also his summary of the nature of the action. Plaintiffs concede that the fact findings in the statement are correct. It is as follows:
"This action seeks to recover from defendant charges for maintenance of his former wife during confinement in the Central State Hospital of the State of Kentucky from November 8, 1922 to June 24,
1949 and in the Kentucky State Hospital from the latter date to her death on October 4, 1955 (less two short periods of 2 1/2 months and 7 days during trial visit periods outside the hospitals), plus interest thereon at 6%. It is stipulated that if any liability exists, it is on the basis of the rates fixed by Kentucky for non-indigent patients in its mental hospitals pursuant to statute, viz. , $90 per quarter up to June 30, 1948 and $150 per quarter from that date. Interest is claimed on each quarterly installment from the end of the quarter.
The case was tried without a jury. I find the following facts: Defendant married Carray Lee Mullins (also known as Carrie Lee) on August 22, 1917 at Clintwood, Virginia. They moved to Louisville, Kentucky and established residence there. Defendant attended school and in 1920 commenced the study of medicine at the University of Louisville. He pursued his medical studies to completion in 1924 and then left Kentucky, never to return. A son was born of the marriage in 1921.
In May or June, 1922, the wife showed signs of an abnormal mental condition. Some time thereafter she was a patient in a private sanitarium in Louisville, the cost of which was shared by defendant and her brother. In October 1922, a petition was filed in the Jefferson Circuit Court in Louisville seeking an inquest on the ground that she was a person of unsound mind. Following a jury verdict a judgment was entered October 16, 1922 that she was a person of unsound mind and a lunatic and that she be committed to the Central State Hospital. I am satisfied that the proceedings were regular and valid, in accordance with Kentucky practice at that time.
She entered the hospital on November 8, 1922 and remained there until her transfer on June 24, 1949 to Kentucky State Hospital where she continued as a patient until her death in 1955. The latter hospital, established about 1940, is, like Central State Hospital, one of the integral parts of a single entity, the State Department of Mental Health (created in 1952) and its predecessors, the Department of Welfare (created about 1930) and the State Board of Charities and Correction. Her 1949 transfer was proper and in accordance with due administrative procedure. It is admitted that she was insane at the time of admission and remained so to her death.
There was no direction in the judgment in the lunacy and commitment proceedings as to who should pay for her care and maintenance. The records of the hospitals show that she was classed as indigent.
Following the graduation from medical school in 1924, defendant, for the next three years, served an internship, did postgraduate work and was a resident physician in three different hospitals in Portsmouth, Virginia, New York City and Philadelphia. In the summer of 1927 he went to Reno, Nevada for the purpose of establishing residence to bring suit for divorce against his wife. The suit was filed November 1, 1927. The ground of divorce alleged, pursuant to
Nevada law, was the insanity of the wife. The complaint stated that the plaintiff therein had never been required by any order of any Kentucky court to pay any sum of money toward the maintenance and support of his wife since commitment, but had paid certain sums of his own free will, and went on to say that in event a decree was granted 'said plaintiff is willing to contribute to the support and maintenance of said defendant in the amount and in whatever manner the court may order and direct, and said plaintiff is willing and does hereby offer to give bond therefor in whatever amount may be fixed by the court.' Central State Hospital knew of the action, for its superintendent gave a deposition to prove the insanity of the wife and the existence thereof since admission. A decree of divorce was entered on November 14, 1927, as to the validity of which no question is involved, granting an absolute divorce for insanity for a period of two years prior to the commencement of the action. There is written in at the end ...