184 S.W.2d 873 | Ky. Ct. App. | 1945
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *134 Affirming.
This is an action for claim and delivery of a diamond of the alleged value of $2,000, claimed by the plaintiff, F.F. Bryan, to have been given him years ago by his father, loaned back to him, then to have passed into the custody of his mother, and after her death to her daughter the plaintiff's sister, Mrs. Mary Bryan Slack, the defendant. The verdict and judgment were for the plaintiff. The defendant seeks a reversal.
The petition follows Section 180 et seq., Civil Code of Practice, which define an action in ordinary for the recovery of specific articles of personal property in substitution of the action of replevin. Stimson's Ex'x v. Tharp,
There is not much variance in the factual conditions, but the circumstances afford different conclusions as to the consequences or what the facts establish or prove. In brief, the story is that in 1911 Jasper Offutt bequeathed the diamond to the father of the parties, Dr. F.F. Bryan, Sr. His brother, George O. Bryan, who lived in Arkansas, testified that about 1914 or 1915 Dr. Bryan told him he had given to his son, Frank, the pin and also a watch which had been left him by their uncle. He suggested to his brother that it was not wise for Frank to be wearing the pin at the races and in such gatherings where it was likely to be stolen, and Dr. Bryan agreed. On the witness' next visit to Georgetown, three or *135 four years later, he noticed that Frank was not wearing the pin and he asked his brother about it. He replied that after his remark on his former visit that the diamond might be "nipped," he had asked his son to loan it to him and let him keep it for him, and also that he liked to see Betsy, his wife, wearing it. Frank had "turned the pin over to him as requested as a loan." Another disinterested witness testified to a statement by Dr. Bryan in 1921 or 1922 tending to corroborate this; and another related a conversation in 1925 or 1926 with Dr. Bryan and his son which was definitely to the effect that the Offutt pill and watch had been given Frank, who was wearing them on that occasion. The son had often worn the pin during these years and had taken it several times to a jeweler to be cleaned. Both the father and mother wore it occasionally. But it appears that the mother did not wear it after her husband's death in 1929, and had kept it with her jewels. Not long before her death in 1943 she had her daughter take her little bag of jewels to her safety box in Lexington. At this time the stone was unmounted and was with them. The mother bequeathed all jewelry to her daughter, the defendant, excepting a described ring to her son.
There is some evidence introduced by the defendant tending to show that a different stone than that involved had been worn by her brother. The sister testified that on one occasion in 1918, when she was wearing a ring in which the diamond had been set, the plaintiff wanted her to let his wife wear it on a visit she was going to make, saying that she, his wife, "has as much right to wear it as you have." The sister refused, saying it was her mother's ring and she had entrusted her with it. He became angry, but asserted no claim of ownership. This, it is argued, is an indirect admission that his mother owned the ring. The plaintiff denied this conversation and stated the diamond had never been set in a ring. All other evidence in the case rather corroborates him. The defendant testified that prior to their mother's death, her brother asked her, the sister, "Don't you think it is time she is dividing up those diamonds?" This is not denied. There is no evidence of any claim of ownership of the stone ever having been asserted by the plaintiff until sometime after his mother's death. Of course, he was barred from testifying as to any conversation or transaction with his deceased parents. Sec. 606, Civil Code of *136 Practice. This silence and the absence of a claim of ownership through the years is negative evidence as to the essential fact, namely, whether the diamond had been given to him outright thirty years or more before. On the other side, there is no evidence that either the father or mother ever made any statement or did anything inconsistent with the plaintiff's claim.
The issue of fact was only this: Did the father give the diamond to his son and later receive it back into possession as a loan? As we have stated, the essential facts of the transaction presented by the plaintiff are not contradicted, but there are countervailing circumstances, principally the possession for so long a time by the father and mother, which afford a reasonable inference to the contrary. The appellant submits that she was entitled to a directed verdict upon the issue of fact as to the gift of the diamond, or, in any event, upon the ground that the cause of action is barred by the statute of limitations.
On the first proposition, the evidence is clearly sufficient to take the case to the jury and support the verdict. Hall's Adm'x v. Hall's Adm'r,
In the matter of a bar to recovery of the diamond because of the statute of limitations, our postulate must be that the plaintiff's claim was established. The question then is: Was the strength of that right destroyed by the statute? The five-year statute applies. Ky. Rev. Stats.
The plaintiff established what was anciently called a gratuitous loan, or, as called in the civil law, a depositum, where custody, as opposed to service, is the chief purpose, or a Loan for Use, or commodatum, where a chattel is to be used by the bailee without reward and then specifically returned to the bailor. Story on Bailments, Secs. 6, 219; 6 Am. Jur., Bailments, Secs. 9, 11. Both classes are now embraced in the general classification of a gratuitous bailment. 6 Am. Jur., Bailments, Secs. 14, 23; Green v. Hollingsworth,
It may be observed that the father did not undertake specifically to dispose of this diamond. He merely bequeathed all of his estate to his wife. The son at least acquiesced in the continuation of the bailment by his mother as bailee. Neither did the mother undertake to dispose specifically of the stone. There is nothing to indicate that she considered this as one of the jewels which she bequeathed to her daughter. It is not shown whether or not the diamond was included in the inventory of either parent. The brother did decline to let his sister continue in possession for he seasonably made a request of her that she deliver it to him. No question is raised as to the right of the defendant as successor in possession of the diamond and as the claimed successor in title to rely upon the statute of limitations, the time reaching back to the period during which her father and mother successively had the stone. Moore's Heirs v. Shepherd, 2 Duv. 125; Buckler's Adm'x v. Rogers, 53 S.W. 529, 22 Ky. Law Rep. 1.
The plaintiff pleaded and proved a prima facie case, so the burden of going forward with the proof to establish that his cause accrued more than the statutory period of five years before he instituted the action shifted to the defendant. 6 Am.Jur., Bailments, Sec. 371; Fidelity Columbia Trust Co. v. McCabe,
The defendant pleaded facts as to the claimed ownership and the possession of her father then her mother and then herself, giving the approximate dates, which were proved by plaintiff as above described. She stated what she was informed and believed to be the plaintiff's ground of claim, and pleaded that in the event he should be able to establish his claim, his right to recover was barred by the five-year statute of limitations. That, we think, was only a legal conclusion from an insufficient allegation of facts justifying it, for, as above stated, the plaintiff's cause of action did not accrue until there had been a repudiation of the bailment by the bailee. It was essential that the defendant plead and prove such ultimate fact or facts from which it could be inferred. Redford v. Crowe's Adm'x,
The insufficiency of the pleading followed through into the evidence. The conclusion of a bar is not justified by the facts for there was no evidence of a breach of the terms of the bailment by the bailee at any time ante-dating five years before the action was filed. The facts *139 upon which the plea of limitation, though defective, rested were not in dispute, so there was no issue on the point to submit to the jury, as the appellant contends should have been done. It was a question of law for the court to determine, and we think the decision that there was no bar was correct.
We do not overlook the point made by the appellant that one of the prerequisites to maintaining the action to obtain an order of delivery is that the petition or an affidavit must show that the "plaintiff's cause of action has accrued within one year." Civil Code of Practice, sec. 181. This is one of the conditions prescribed for obtaining the order before judgment, Sec. 180, and does not place the burden on the plaintiff of establishing the fact that his cause of action accrued within one year. A party's right to recover the possession of specific personal property by a judgment does not depend upon this provision. Weisenberger v. Corcoran,
As stated, the defendant pleaded laches, but the rule of laches is one in equity and is inapplicable in this common law action. However, there is a rule in the law of statutory limitations pertaining to bailment which stems from the principle and is close kin to laches. This rule, recognized by the weight of authority, is, in short, that unless delay in making a demand is expressly contemplated by the parties, under some circumstances the court will presume from the lapse of an unreasonable time that such a demand was made and refused. This is especially applicable where the situation and the relation of the parties are such as to render it improbable that demand should be neglected. The contract of bailment is construed as importing a reasonable time for the return of the chattel, and the court will determine what is a reasonable time from the circumstances in each case. It is said that ordinarily the time in which demand will be deemed to have been made is that stipulated in the statute of limitations as barring the cause of action if not brought after it accrued. Wood on Limitations, Sec. 118; 6 Am. Jur., Bailments, Secs. 341, 343; *140
34 Am. Jur., Limitation of Action, Sec. 119; Annotation, 47 A.L.R. 181; Campbell v. Whoriskey,
This rule was expounded and applied affirmatively in the leading case of Wright v. Paine,
Another well considered case is Campbell v. Whoriskey, supra,
In Shewmake v. Shifflett, supra,
In a case decided by this court in 1837, Green v. Hollingsworth,
"If the watch was loaned to Green, when it was to be returned was a fact to be ascertained by the jury from the circumstances proved; and if those circumstances conduced to establish no special time, and, from the nature of the transaction as proved, the jury could have inferred that the parties actually intended a beneficial loan, the law made it the duty of Green to return the watch in a reasonable time. But, in such a state of case, of indefinite loan or use, a court could not decide that Green was guilty of a breach of his implied obligation, in not returning the watch within three weeks, or the time that elapsed before the alleged loss of it."
Going back to the case at bar. There is no evidence that the plaintiff ever asked or even expressed a wish that the diamond be returned to him that he might keep it permanently after he turned it over to his father sometime between 1914 and 1918. Nor on the other side is *142 there any intimation of an adverse claim of ownership. It appears that no member of the family wore the diamond after the father died in 1929. The mother had it in her exclusive custody for some fourteen years after that time. Here was a compact family, consisting only of the father and mother, son and daughter, living in the same town or community, and on friendly terms. The diamond was an heirloom. It was not unnatural for the son to have left it with his mother to be kept, as it appears it was, with her own jewels. We think these things insufficient to raise the presumption or implication of law that there was a waiver of ownership by the plaintiff or in adverse holding of the diamond by the father or mother. The trial court was correct, therefore, in declining to direct a verdict for the defendant upon this ground and to submit to the jury the question of limitations.
Judgment affirmed.
Whole Court sitting.