Beck v. Givens, 2767

• Court: United States State Supreme Court of Wyoming
• Citation: 309 P.2d 715,77 Wyo. 176
• Docket Number: No. 2767,2767
• Parties: Mae E. BECK, Plaintiff and Appellant, v. Earl GIVENS, as Administrator of the Estate of Donald Givens, Deceased, Defendant and Respondent.
• Decision Date: 09 April 1957

Page 715

309 P.2d 715

77 Wyo. 176

Mae E. BECK, Plaintiff and Appellant, v. Earl GIVENS, as Administrator of the Estate of Donald Givens, Deceased, Defendant and Respondent.

No. 2767.

Supreme Court of Wyoming.

April 9, 1957.

Spence & Hill, Riverton, for appellant.

Moran, Murphy & Hettinger, Riverton, for respondent.

Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

Plaintiff, Mae E. Beck, brought an action against Earl Givens, in his capacity as administrator of his father's estate, seeking to be adjudged the owner of 165 sheep and all cattle bearing D/G brand, together with calves, which livestock were in possession of defendant. Plaintiff's claim was based on two purported bills of sale to her from the deceased. Defendant's resistance to the action stemmed from the claim that the bills of sale were ineffective to transfer title to plaintiff.

The answer admitted that deceased died on February 22, 1956, and admitted defendant's possession of the livestock, but alleged that the animals had been the property of the deceased, that plaintiff's claim to them was invalid, and that defendant properly held them as the representative of deceased's estate.

On the trial, claimant's witnesses were Mae E. Beck, the plaintiff; Sharon Beck, her daughter; and the defendant, who was called for the purpose of cross-examination. Defendant objected to testimony by plaintiff on the ground that § 3-2603, W.C.S.1945, the 'dead man's statute,' prohibited such testimony. This objection was sustained to all but a few questions, and plaintiff thereupon made an offer of proof covering testimony which she proposed to present. The daughter, Sharon Beck, testified that plaintiff and deceased had lived together some eleven years, that she had thought they were married. She identified Plaintiff's Exhibit No. 1, a brand inspection certificate covering some 159 sheep and containing thereon in the handwriting of deceased the following:

'February 4, 1956

'Sold to Mae Beck for 1000 and other valuable consideration Same being at Pitts Ranch

'Donald Givens'

testifying that on February 4, 1956, in her presence at their home decedent had given the instrument to the witness' mother, stating that he wanted to give it to her, and that plaintiff had thereafter 'put it up.' The witness also identified Plaintiff's Exhibit No. 2, reading as follows:

'February 15, 1956

'Sold to Mae E Beck for 10/00 ten dollars and other valuable consideration All cattle branded D/G numbering at least seven head

'Donald Givens'

and stated that the instrument had been found by plaintiff in her desk after decedent's death. Both of these exhibits were introduced in evidence without objection from defendant.

At the close of plaintiff's evidence, defendant moved for judgment. When the motion was denied, he took the stand in his own defense and called Alvin Givens, a son of deceased. Plaintiff's attempt to testify in rebuttal was limited by defendant's further objection, based on the 'dead man's statute.'

The trial court found, inter alia, 'That Donald Givens died * * * by his own hand * * * and * * * left in the plaintiff's home two memorandums dated February 4th and February 15th, respectively, designated as Plaintiff's Exhibits 1 and 2, which recite in Donald Givens' handwriting, 'Sold to Mae Beck for $10 and other valuable considerations' certain livestock * * *. * * * that if the documents in question were intended by the deceased to evidence a gift inter vivos or causa mortis by the deceased to the plaintiff in contemplation of his suicide, the language of the documents themselves is insufficient to indicate such a gift, and the evidence does not disclose that the docments had been placed by the decedent beyond his control, so that in fact no delivery of the documents had been made prior to his death * * *.'

The judgment on this finding stated that the instruments 'are in effect only memorandums of an agreement of sale when in fact no agreement for the sale of the property in question had been entered upon or agreed to by the deceased and the plaintiff * * *.'

Plaintiff's specifications of error, dealing generally with the rejection of plaintiff's testimony and with the alleged incorrectness of the court's findings of fact and conclusions of law, are attacked by defendant as indefinite and objectionable. Defendant further insists that plaintiff's argument in the brief departs from the specifications and approaches the appeal as if the matter is to be considered de novo rather than on appeal. Without passing upon any alleged ineptness of the specifications or their lack of unity with the current argument, it is sufficient at this point to say that the propriety of the judgment depends upon three questions.

First. Did the trial court disregard the uncontradicted testimony of the daughter, Sharon Beck, and if so, was the court justified in so doing?

Second. Was the February 4 instrument, Plaintiff's Exhibit No. 1, a valid transfer of the animals described therein, notwithstanding the fact that the parties had failed to move the animals?

Third. Was the February 15 instrument, Plaintiff's Exhibit No. 2, a valid transfer of the animals described therein, notwithstanding the fact that the parties had failed to move the animals?

Considering the first question thus presented, we are unable to say whether or not the trial court disregarded the testimony of Sharon Beck. The judgment does not evaluate her testimony or state what the evidence shows, and the record contains no indication in this regard. However, defendant in his brief states:

'* * * It is believed, further, that the nature of the testimony of Sharon Beck, daughter of plaintiff, in direct and cross-examination, in its uncertainty, its contradictions, its misstatements, and its admitted attempt to testify to matters as they had been told to her by her mother, the plaintiff and appellant, rather than of her own knowledge, was such that the court would have been at liberty to disregard it in its entirety.'

In the light of this rather sweeping observation, it seems appropriate that we state our views on the subject.

The right of a trial court to disregard the uncontradicted testimony of a witness poses a problem regarding which there has been a lack of unanimity of opinion. It has been stated that undiscredited testimony of a disinterested witness to facts of themselves not improbable constitutes a legal establishment of the facts about which testimony is given. It has also been said that the testimony of a witness even though uncontradicted is for the triers of fact, whether court or jury, who are not bound thereby, and that the testimony may be disregarded if evasive, equivocal, improbable, impossible, or contrary to physical facts, laws of nature, or scientific principles. See generally on the subject 20 Am.Jur., Evidence § 1180; Annotations, 8 A.L.R. 796, 72 A.L.R. 27; Haywood v. Kukuchka, 55 Wyo. 41, 95 P.2d 71.

As will be indicated by a search of Evidence, k594, West's American Digest System, the cases on the subject are multitudinous and the decisions divergent depending on the facts in each instance. A few statements from representative cases are worthy of consideration:

'* * * since there is no testimony to the contrary and no reason appears for doubting the accuracy of observation or credibility of the witnesses, their statements should be accepted.' International Shoe Co. v. Federal Trade Commission, 280 U.S. 291, 50 S.Ct. 89, 92, 74 L.Ed. 431, 441.

To a similar effect see Chesapeake & O. R. Co. v. Martin, 283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983, and Pence v. United States, 316 U.S. 332, 62 S.Ct. 1080, 86 L.Ed. 1510, rehearing denied 316 U.S. 712, 62 S.Ct. 1287, 86 L.Ed. 1777.

'* * * The evidence of the witness * * * was unimpeached and uncontradicted, and its credibility was in no manner brought in question. This being so, the district judge could not reject his testimony or find contrary thereto. * * *' United States v. Johnson, 5 Cir., 208 F.2d 729, 730.

'* * * uncontradicted and unimpeached testimony can not arbitrarily be disregarded. * * *' Kneeland v. Ethicon Suture Laboratories, Inc., 118 Cal.App.2d 211, 257 P.2d 727, 738.

See McVey v. McVey, 132 Cal.App.2d 120, 281 P.2d 898, quoting the Kneeland case.

'* * * The rule is well established in this state that the court or jury cannot disregard the positive testimony of an unimpeached witness unless and until its improbability or inconsistency furnishes a reasonable ground for so doing, and this improbability or inconsistency must appear from the facts and circumstances disclosed by the record in the case. It cannot be arbitrarily disregarded by either court or jury, for reasons resting wholly in their own minds, and not based upon anything appearing on the trial. [Citing many cases.] * * *' O'Leary v. Wangensteen, 175 Minn. 368, 221 N.W. 430, 431.

See also Ressen v. Northwestern National Bank and Trust Co. of Minneapolis, 238 Minn. 314, 56 N.W.2d 663, citing the O'Leary case.

We are convinced that the trier of fact should be accorded great freedom in the evaluation of the testimony of the witnesses, but we are in doubt that we should go so far as to impute to such trier of fact an intention to arbitrarily disregard the undisputed testimony of a witness. The record in this case indicates that there were some inconsistencies in the tetimony of Sharon Beck; but on the whole we find no such evasiveness, equivocation, improbability, or impossibility as to warrant the presumption that the trial court arbitrarily disregarded her testimony, without mentioning that fact.

Assuming then that as Sharon Beck testified the purported bill of sale for the sheep was given to plaintiff by the deceased and that deceased stated he wanted to give it to her, we pass to the second question: Was the February 4 instrument, Plaintiff's Exhibit No. 1, a valid transfer of the animals...