179 Ky. 428 | Ky. Ct. App. | 1918
Opinion op ti-ie Court by
Affirming.
Plaintiff, Bess D. Williams, brought this suit against J. R. Holman and W* B. Morgan to recover possession of a Buick automobile and $100.00 for its detention. The jury found in favor of plaintiff and awarded her damages in the sum of $15.00. The defendants appeal.
When very young plaintiff was taken into the home of E. W. Lyen and reared and educated by him and his wife, Mrs. Sue Lyen. Upon his death, Mr. Lyen devised all his property to his wife. Plaintiff continued to live with Mrs. Lyen until the year 1914, when she married J.ames P. Williams, and moved to the home of her husband’s parents. There she remained until May, 1915, when she and her husband moved to the home of Mrs. Lyen and continued to live there until Mrs. Lyen’s death. Mrs. Lyen died in the month of November, 1916, without children. By her will she gave to plaintiff $2,000.00 in money and other personal property. The remainder of her property she gave to her nieces and nephews. After Mrs. Lyen’s death, defendants qualified as her administrators with the will annexed. The administrators took possession of the automobile and appraised it with the other property.
It is plaintiff’s contention that Mrs. Lyen 'either gave her the automobile or sold it to her in consideration of plaintiff’s agreement to live with her. ITer evidence is in brief as follows: Miss Devine, a sister of plaintiff, testified that Mrs. Lyen told plaintiff that if she-would come back and live with her she would give
According to the evidence for defendants, Mrs. Lyen bought and paid for the machine and insured it in her own name. She also assessed it as her own prop
It is argued that the evidence was insufficient to establish a gift inter vivos because it merely tended to show an intention to give instead of an absolute and unconditional transfer and delivery of the property. In this connection some stress is placed on the fact that the machine always remained in Mrs. Lyen’s garage and the fact that plaintiff used and drove the machine was not sufficient under the circumstances to show a delivery. An examination of the evidence above referred to will show that Mrs. Lyen not only stated before she purchased the machine that she intended to buy it for plaintiff, but also stated after the purchase that she had bought it for plaintiff and that the machine was plaintiff’s. Under these circumstances it was not essential to a valid delivery that plaintiff should build another garage or keep the machine somewhere else than on the donor’s premises. To be effectual, delivery must be according to the nature and character of.the thing given, and where the donee lives with the donor and the gift of the automobile as well as the right to use and control it without the permission of the donor is clearly shown, the mere fact that the donor keeps the machine in her garage or wishes to supplement her kindness ,by paying all expenses incident to the operation of the machine, can not be regarded as the retention of such dominion over the machine as to render the gift ineffectual. Viewing the evidence in the light of this rule, we conclude that it was not only sufficient to take the case to the jury but to sustain the verdict.
Complaint is also made of the fact that the trial court permitted plaintiff to testify to the time and circumstances under which she lived in the home of Mrs. Lyen, who was then dead. In reply to this contention it is sufficient to say that we do not regard the admission of this evidence as prejudicial in view of the fact that sub
By ■ its instructions the court submitted to the jury not only the question of gift, but also 'the question of sale, and the point is made that the evidence was not sufficient to show a sale. The difference between k gift and a sale- is that the former is a transfer of property without consideration, while a sale is a transfer of property for a consideration. If, as the evidence tended to show, Mrs. Lyen bought the machine for plaintiff in consideration of plaintiff’s agreement to live with her, there was' a consideration for the transfer of the property and the court did not err in submitting the issue of sale.
The instruction on the measure of damage's is as follows :
“If you find for the plaintiff you will find for her such damages as you believe she had sustained by the loss of the use of said car by the withholding of same from her possession, not to exceed the sum of $100.00, the amount claimed in the petition. ”
It is argued that the measure of damages should have been such sum as would fairly compensate plaintiff for the reasonable value of the use of the car during the time it was withheld from her possession. While an instruction in the latter form might have been more technically correct, we are of the opinion that the given instruction was not prejudicial in view of the fact that the jury fixed the damages for the detention of the machine at only $15.00.
Another error relied on is the admission of plaintiff’s declarations of ownership made when Mrs. Lyen was not present. It appears, however, that these declarations- were all made while plaintiff was in the possession of the machine and it is universally held that the declarations of a person in the possession of personal property are admissible for the purpose of showing the character of his possession and to prove title or ownership even though such declarations are self-serving. R. C. L. P. 490; Commonwealth, Etc. v. Fletcher, 69 Ky. 172; Eureka Insurance Co. v. Robinson, 56 Penn. St. 256, 94 Am. Dec. 66.
Lastly, it is insisted that the court erred in failing to. require the jury to assess the value of the machine in
Judgment affirmed.