Kramer v. Kramer

• Decision Date: 15 November 1968
• Docket Number: No. 41125,41125
• Citation: 282 Minn. 58,162 N.W.2d 708
• Parties: Veronica KRAMER, Respondent, v. A. M. KRAMER, et al., Appellants.
• Court: Minnesota Supreme Court

Page 708

162 N.W.2d 708

282 Minn. 58

Veronica KRAMER, Respondent, v. A. M. KRAMER, et al., Appellants.

No. 41125.

Supreme Court of Minnesota.

Nov. 15, 1968.

Syllabus by the Court

1. It is only in the clearest of cases where the facts are undisputed and it is clear that all reasonable men can draw but one conclusion from them that the question for determination becomes one of law for the court. On a motion for judgment notwithstanding the verdict, the single question is whether there is any competent evidence reasonably tending to sustain the verdict. The motion should be granted only when it appears that the evidence is conclusive against the verdict.

2. Impeachment of witnesses by prior statements made or prior testimony given concerns their credibility and the weight to be given to their testimony, matters solely for the jury, as the trier of fact, to pass upon with freedom to accept or reject the witness' testimony.

3. Except in extreme cases, errors and omissions of counsel in discussing the applicable law or in the drawing of factual inferences are cured when the jurors are expressly instructed that they are the exclusive judges of the facts and that their recollection of the facts must prevail over any contrary contentions of counsel and further that they must take and apply the law as given by the court and not as presented by counsel.

4. Once evidence is in, it becomes part of the case and can be commented upon in the closing argument.

5. Where counsel in his closing argument pursues an improper line of argument which invites or provokes a reply, it is not reversible error if his adversary engages in similar argument in reply even though such argument might otherwise be objectionable.

Peterson & Challeen, Winona, for appellants.

William A. Lindquist, Winona, for respondent.

Heard before KNUTSON, C.J., and NELSON, MURPHY, PETERSON, and FRANK T. GALLAGHER, JJ.

OPINION

NELSON, Justice.

Appeal from an order of the District Court of Winona County denying a motion for judgment notwithstanding the verdict or for a new trial.

Plaintiff, Veronica Kramer, brought this action against A. M. Kramer and Alfred B. Kramer, father and son, respectively. For a first cause of action she alleged that defendant A. M. Kramer was indebted to her in the sum of $4,500 for money had and received by him belonging to plaintiff, the same being her share of the consideration of $9,000 received for the sale and conveyance by plaintiff and her then husband, defendant Alfred Kramer, to one William D. O'Brien, of real estate in Hayward, Wisconsin, owned by plaintiff and Alfred as joint tenants. Plaintiff further alleged that although duly demanded, no part of the $9,000 paid by O'Brien had been given to her.

For a second cause of action, plaintiff alleged that on November 17, 1964, defendant A. M. Kramer promised her that if she and her husband would sell their interest in the Hayward land to O'Brien for $9,000 and apply the proceeds to the purchase of a home in Winona, he, A. M. Kramer, would place the title thereto in the names of plaintiff and her husband as joint tenants; that in consideration of this promise she signed the deed conveying the Hayward land and delivered the deed to A. M. Kramer; that although A. M. Kramer obtained the $9,000 consideration and purchased a home at 1630 Gilmore Avenue, Winona, 'kitty-corner' from his own home, he took title to the Gilmore Avenue home in his own name and still continues to hold the sole title thereto, refusing to place the title in the names of plaintiff and Alfred Kramer, although duly demanded so to do. Plaintiff alleged also that the Gilmore Avenue real estate had a value of.$19,000 and that she was damaged by A. M. Kramer's refusal to convey in the sum of $9,500.

Plaintiff's third cause of action alleged fraud by A. M. Kramer in inducing plaintiff to sign the deed conveying her interest in the Hayward land--that at the time he promised to place the home to be purchased in Winona in her name and that of Alfred Kramer in joint tenancy, he had no intention of carrying out this promise, although he knew that plaintiff's signing and delivery of the Hayward deed was in reliance upon the promise and with the expectation that it would be carried out.

Plaintiff for another cause of action sought damages for alleged wrongful eviction from the 1630 Gilmore Avenue home by A. M. Kramer.

Based upon these causes of action, and two which were dismissed before trial, plaintiff demanded judgment against A. M. Kramer for damages, including punitive damages, and a determination that he held title to the Gilmore Avenue property in trust for plaintiff and Alfred Kramer, her former husband, and that she is now the owner in joint tenancy with her former husband of an undivided one-half interest therein.

Defendants served and filed separate answers to plaintiff's complaint, denying each cause of action separately and praying for judgment that plaintiff take nothing by her pretended and frivolous cause of action. They also, pursuant to Rule 56, Rules of Civil Procedure, moved for summary judgment in their favor on the grounds that there was no dispute as to any material fact and they were entitled to judgment as a matter of law.

The trial court after due consideration ordered that the motion for summary judgment be granted only with respect to two causes of action not detailed herein. Judgment of dismissal of these causes of action was entered September 27, 1967.

The record establishes the following facts. The first years of the marriage between plaintiff and Alfred Kramer were spent in Winona where he worked in his father's contracting and excavating business. They lived in a succession of three new homes in Winona owned by A. M. Kramer. The last of the three homes, located on Terry Lane, Winona, was deeded by A. M. Kramer to his son largely as a gift. In 1961 it was arranged that Alfred and his wife would sell the Terry Lane home and move to Hayward, Wisconsin, where they and A. M. Kramer would buy a bowling alley which Alfred and his wife, plaintiff, would operate. The Terry Lane home was sold for $17,500, and the proceeds were invested in the bowling alley business. Title to the bowling alley real estate was taken in the names of both defendants and later that same year Alfred, with his wife joining, deeded their interest in the bowling alley to A. M. Kramer without consideration. Alfred and plaintiff lived on the bowling alley premises and operated the business for some two or three years when A. M. Kramer sold the business on contract. The building burned down, the contract buyer defaulted, and A. M. Kramer got the property back, rebuilt the bowling alley, and Alfred ran it again for a while until it was finally sold. When the business was sold the first time, Alfred Kramer and plaintiff purchased a home in Hayward for $7,500, taking title as joint tenants. The purchase money for this home was loaned by A. M. Kramer to Alfred, who gave his father a note, not signed by plaintiff, for the indebtedness. No mortgage was taken against the real estate. Plaintiff was unaware of any of the financing, and since Alfred did not want to run the bowling alley and his son Bobby was having trouble in school, they decided to return to Winona. Plaintiff and her sons moved to Winona in August 1964, taking up residence at 1630 Gilmore Avenue, this home being provided by A. M. Kramer, who bought it in August 1964. The home in Hayward was placed on the market for sale.

On November 17, 1964, plaintiff signed a deed conveying her interest in the Hayward property under the following circumstances: In the forenoon A. M. Kramer called plaintiff and said that the Hayward home had been sold and that they would have to go to the office of his attorney, Martin Beatty, to sign the papers. Those present at the office were Mr. Beatty, A. M. Kramer, and plaintiff. The attorney's wife was in the outer office. A. M. Kramer explained they wanted to sell the house in Hayward so the deed had to be signed by plaintiff. Plaintiff said to him, 'I shouldn't sign these papers until I get the papers for the house I am living in now.' A. M. Kramer responded, 'Don't worry. Martin Beatty is making them up now.' Plaintiff understood by this that the title to the home at 1630 Gilmore Avenue would be placed in the names of her husband and herself in joint tenancy, and according to her testimony she would not have signed the deed of the Hayward property if that statement had not been made.

The deed plaintiff then signed had been prepared in Hayward by Attorney Quentin Johnson and was mailed to Winona for execution. It is not clear whether this deed was mailed to A. M. Kramer or to Martin Beatty, but it was not mailed to plaintiff. Beatty had been A. M. Kramer's attorney for many years. He did not represent plaintiff. The Hayward property was thereafter sold for $9,000 and the deed delivered. The $9,000 was paid by check to Alfred Kramer, plaintiff not being included as a payee. Alfred immediately endorsed the check and had Mr. Johnson mail most of the proceeds to his father, who applied the money for payment of the note given to him when the property was purchased. On several occasions thereafter plaintiff asked A. M. Kramer when they were going to get the papers for the house at 1630 Gilmore Avenue, Winona, but was told they were not yet ready.

While living in Hayward plaintiff and Alfred Kramer had marital trouble, twice separating. After her return to Winona, in October 1965, plaintiff commenced a divorce action against her husband which resulted in a divorce being granted to her in March 1966. She received no interest in the home at 1630 Gilmore Avenue, as the title was in the name of A. M. Kramer. After the divorce plaintiff received a letter dated April 18, 1966, from Mr. Beatty on behalf of A. M. Kramer, informing her she was a trespasser at 1630 Gilmore Avenue and must leave not later than April 30, 1966,...