Werner v. Miller, 36788
| Decision Date | 27 July 1956 |
| Docket Number | No. 36788,36788 |
| Citation | 78 N.W.2d 63,248 Minn. 75 |
| Parties | John F. WERNER, Appellant, v. Wright MILLER, as Adm'r of Estate of Martha Werner, deceased, Respondent. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
1. Positive and unimpeached testimony of a witness may be disregarded if it contains inherent improbabilities or contradictions which, alone or in connection with the other circumstances in evidence, furnish a reasonable ground for concluding that the testimony is not true.
2. Where the trial is before the court without a jury, conflicts in evidence are to be resolved by the trial court as a finder of fact and findings are entitled to the same weight as verdict of a jury and will not be reversed on appeal unless clearly erroneous and contrary to the evidence.
3. It is not reversible error for a trial court in a nonjury case to admit incompetent evidence unless such evidence was relied upon by the trial court and induced the court to make an essential finding which would not otherwise have been made.
Affirmed.
Foley & Foley, Wabasha, for appellant.
Burkhardt & Dunlap, Plainview, for respondent.
Action for conversion of a promissory note brought by John F. Werner against the administrator of his mother's estate. Following an adverse decision by the court sitting without a jury, plaintiff's motion for amended findings of fact, conclusions of law, and order for judgment, or, in the alternative, for a new trial was denied. From the order denying this motion, plaintiff appeals.
John F. Werner, the plaintiff, was, at the time of his mother's death, her only living child. A resident of Tracy, Minnesota, plaintiff would visit his mother at her home in Plainview about four times a year in the years prior to her death. It was on one of these visits, Mother's Day 1953, that the transaction in question occurred. Martha Werner, then 81 years old and in good physical and mental health, handed her son an unendorsed negotiable note and some bonds, saying that he should take them as she was getting old and would no longer need them. 1 Plaintiff answered that he might die before his mother and she should keep them. Eventually he put the bonds and note in his pocket and took them home along with some of his mother's personal effects which she had given to his wife. About three weeks later plaintiff returned the bonds and note to his mother, saying she might get sick and the money might be needed to pay her expenses; also that it would be easier for the maker of the note to pay in Plainview than in Tracy.
The note remained in Martha Werner's possession until November 1953. In October of that year the maker made a payment on the interest and principal of the note to Martha Werner. She endorsed the payment on the note and disposed of the $500 so paid by depositing $100 in her personal account, taking $6.25 in cash, and purchasing a $393.75 Government Savings Bond in her name and the plaintiffs.
Martha Werner became ill shortly thereafter and was taken to a hospital in Rochester. At the hospital she told plaintiff where the note, bonds, and some other papers were located and told him to take them. He took the envelopes containing the note and papers to his home in Tracy. Plaintiff and his wife then remained with the mother almost constantly until her death on November 19, 1953.
After Martha Werner's interment the plaintiff aided his nephew in trying to locate the note in Plainview. He had forgotten that the note was in his possession at home. While conducting the search, he made no specific claim to the note. Later plaintiff found the note in Tracy where he had taken it. Apparently it was in an envelope with some bonds and plaintiff did not at the time know he had it. He later sent the bonds and note to defendant to be included in his mother's estate; he made no claim to the note in the accompanying letter.DP 1. The plaintiff assigns as error the court's finding that he was not the owner of the promissory note either at the time of the death of his mother or at any time thereafter and that he had no right to its possession. He contends that as a matter of law all of the legal elements of a gift were proved and that the uncontradicted evidence establishes an intention to make the gift, delivery, and acceptance by the donee in a transaction free from any taint of fraud or undue influence. 2
It appears from the undisputed evidence that the mother gave the note and other property to her son; that he took possession of it and kept it at his home for several weeks after which he returned it to her. The circumstances under which the returned the note are not inconsistent with the completed gift. The return to the mother is explained by the fact that it would be more convenient for her to collect the interest because the debtor resided in her neighborhood and that she could use the proceeds for her own purpose in the event that need or illness arose. Once a valid gift is established, the subsequent return of the property to the donor for a purpose not inconsistent with continued ownership by the donee does not reinvest the donor with the title. Larkin v. McCabe, 211 Minn. 11, 299 N.W. 649; In re Klehr's Will, 147 Wis. 653, 133 N.W. 1105. Moreover, a few days before the mother's death she told him where he could find the note and other papers after which he again took possession of it.
The plaintiff argues that the evidence in support of the completed gift, which came principally from the testimony of the plaintiff's wife, is uncontradicted and unimpeached; not inconsistent with the facts and circumstances surrounding the transfer; and, as such, should not be disregarded by the trial court. Downing v. Maag, 215 Minn. 506, 10 N.W.2d 778.
But we are controlled by the rule set forth in Olsen v. Hoffmann, 175 Minn. 287, 221 N.W. 10, which holds that the trier of fact is not required to accept as true the positive, unimpeached testimony of credible witnesses where the same is contradictory or discredited by surrounding facts and circumstances. In that decision the court said, 175 Minn. 290, 221 N.W. 11:
'* * * The testimony of a witness may be disregarded if it contains inherent improbabilities or contradictions, which, alone or in connection with the other circumstances in evidence furnish a reasonable ground for concluding that the testimony is not true.'
The defendant here contends there are...
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