Johnson v. Olson
| Citation | 26 N.W.2d 132,71 S.D. 486 |
| Decision Date | 24 February 1947 |
| Docket Number | 8877. |
| Parties | JOHNSON v. OLSON. |
| Court | Supreme Court of South Dakota |
Rehearing Denied April 7, 1947.
John Carl Mundt and B. O. Stordahl, both of Sioux Falls, for appellant.
Harold Bogue, of Canton, and Alan Bogue, of Sioux Falls, for respondent.
The complaint of the plaintiff alleged that her deceased father and the deceased parents of defendant had agreed in writing that defendant's parents would adopt her and that she should share equally with defendant in their property, and prayed that said contract be enforced against defendant and the property formerly owned by his deceased parents. The cause was heard by the court without a jury. The court entered findings, conclusions and judgment for defendant. Plaintiff made a motion for a new trial which was dismissed by the trial court. Plaintiff appealed. The cause was remanded with directions to hear the motion for a new trial. Johnson v Olson, S.D., 20 N.W.2d 226. Thereafter the motion for new trial was heard and denied, and plaintiff has appealed from the order denying her motion. We propose to deal with the appeal from the judgment and the subsequent appeal from the above-described order in a single opinion.
Plaintiff was born in Norway in 1901. She is the youngest of a large family of children. Her mother died when plaintiff was a very small girl. Her mother and defendant's mother were sisters. It was known prior to her mother's death that the plaintiff's brother, Christian, was going to the United States. The mother asked Christian to consult defendant's parents, Olina Olson and John H. Olson, who then lived on a farm near Canton, South Dakota, about taking plaintiff. After Christian had arrived in Canton and had advised his father by letter that defendant's parents were willing to take plaintiff, an arrangement was ultimately made by correspondence between plaintiff's father and defendant's parents whereby plaintiff was to come to the Olsons and her sixteen-year old sister, Gunda, was to come to the home of a neighbor of Olsons. In making these arrangements it was discovered that before the girls could immigrate to the United States each of them must have a written agreement on the part of those with whom they were to stay that they would not become public charges. Written instruments were prepared in triplicate at Canton, South Dakota, and were forwarded to plaintiff's father. Plaintiff testified that the agreement on her behalf was signed by Mr. and Mrs. Olson and by her father and her father's second wife and that in addition to the agreement required by the immigration authorities, it contained an agreement that the Olsons would adopt her and that she would share equally with defendant in their property. Plaintiff's stepmother gave like testimony. When plaintiff was six or seven and Gunda sixteen, they left for America. The above-described papers were placed in Gunda's suit case. She testified that upon arrival at Canton she delivered two copies of the agreement dealing with plaintiff to the Olsons and does not know what became of the third copy. Plaintiff lived with the Olsons from 1907 until 1917 when she was married. Mr. Olson died in 1929 and Mrs Olson died in 1934. Mrs. Olson, according to plaintiff, first told her of the above-described agreement when she was fourteen while they were driving to Canton, to attend confirmation, and first showed her the two copies of the agreement in the living room of her Canton home during the spring before her death. Plaintiff further testified that on the day before her death, Mrs. Olson took her to a storage room on the second floor of the Canton home unlocked a trunk, showed her the two copies of the agreement and returned them to their place of safekeeping. Plaintiff further testified that she, Gunda and Gunda's husband went to the storeroom after Mrs. Olson's death and found the trunk broken open and the small box in which the papers were contained removed.
The basic question presented by these appeals is whether the evidence is sufficient to support the finding of the trial court that the writing executed and delivered by defendant's parents contained neither an agreement to adopt plaintiff nor that she would share equally with defendant in their property, and that defendant's parents did not agree to adopt plaintiff nor did they agree that she should share equally with defendant in their property.
In Johnston v. Eriksson, S.D., 23 N.W.2d 799, we adhered to our former pronouncement that the burden of proof rests upon one seeking to share in the estate of another by virtue of such a contract, as is here alleged, to establish the same by evidence so clear, cogent and convincing as to leave no reasonable doubt as to the agreement. And it is as thoroughly settled that it is the function of the trier of the facts to pass on the credibility of witnesses and where the credibility of witnesses entered into the findings, they will not be disturbed unless the evidence clearly preponderates against them. Houck v. Hult, 63 S.D. 290, 258 N.W. 142. Cf. Rhode v. Farup, 67 S.D. 437, 293 N.W. 632.
In presenting the evidence for review plaintiff does not question these principles. Emphasis is placed upon the fact that plaintiff and her stepmother, who saw the written agreements and testified to their terms, are not directly contradicted by any witness, and upon all of the many circumstances which corroborate their testimony; and it is asserted that the trial court was not warranted in disbelieving plaintiff and her stepmother, and that the clear weight of the evidence is against the court's findings.
A somewhat similar problem confronted the court in State v. Nieuwenhuis, 55 S.D. 636, 227 N.W. 84. The finding there challenged was that an allegedly lost will had never been executed by the deceased. Two witnesses, who were not directly contradicted by any witness, described the making of the will, and told of its terms. The contention was that the court was bound to accept their testimony. This court determined that the evidence as a whole supplied the trier of the facts with a rational basis for disbelieving the testimony of the proponent's witnesses, and therefore it upheld the finding of the trial court.
This cause was tried upon the theory that the agreement to adopt plaintiff and that she should share equally with defendant in the property of his parents was contained in the above-described lost writing. We have not failed to appreciate the strength of the circumstantial evidence which corroborates plaintiff's testimony. We concede it to be doubtful whether this court would have been justified in disturbing a finding favorable to plaintiff's theory. However, the issue here is whether such a finding is impelled. We have concluded that the record offered the trier of the fact a rational basis for its disbelief of this vital testimony of plaintiff and her stepmother. We content ourselves with a brief indication of some of the circumstances which, in our opinion, establish that the trial court's disbelief was a rational and not an arbitrary disbelief.
The foremost of the circumstances is the cross-examination of plaintiff. Although plaintiff had testified that the writing contained the agreement to adopt her, and that she should share equally with defendant in the property of John and Olina Olson, when pressed on cross-examination she testified that she couldn't say whether it contained more than an agreement that she wouldn't become a public charge and that the Olsons would keep her and make a home for her until she was able to care for herself. Further, although according to plaintiff, the importance to her of this agreement had been pointed out by Mr. Olson before his death in 1929, and many times by Mrs. Olson, and Mrs. Olson and...
To continue reading
Request your trial