Davidson v. Stagg

• Decision Date: 08 May 1933
• Docket Number: 7030.
• Citation: 22 P.2d 152,94 Mont. 272
• Parties: DAVIDSON v. STAGG.
• Court: Montana Supreme Court

22 P.2d 152

94 Mont. 272

DAVIDSON v. STAGG.

No. 7030.

Supreme Court of Montana

May 8, 1933

Rehearing Denied May 22, 1933.

Appeal from District Court, Deer Lodge County; Wm. E. Carroll Judge.

Action by F. M. Davidson, trustee, against Barbara Elizabeth Stagg. From judgment for defendant, plaintiff appeals.

Reversed and remanded, with directions.

S. P Wilson, of Deer Lodge, and Walter L. Pope, of Missoula, for appellant.

J. J McCaffery, of Butte, and J. B. C. Knight, of Anaconda, for respondent.

STEWART Justice.

Appellant plaintiff below, instituted this action as trustee, appointed by the district court of Deer Lodge county, against the respondent, defendant below. The suit is for the possession of certain jewelry described in the complaint, or for the value thereof in the sum of $7,200. Plaintiff pleaded that he was appointed trustee by the court on October 15, 1931, to succeed J. P. Stagg, deceased, alleged to have been trustee of the property involved. The appointment and the action in the present form came about by reason of a decision of this court involving the same subject-matter. Stagg v. Stagg, 90 Mont. 180, 300 P. 539, 543.

The previous action was begun by John A. Stagg, as administrator of the estate of his mother, Mary Elizabeth Stagg, deceased, and was against the same defendant. That action was upon an implied contract to recover the value of the property. This court held that the plaintiff had no right to the present possession of the property and could not maintain the action, saying: "But a trust will not fail because of want of a trustee. In such a case the court will appoint a trustee to carry out the trust."

The facts upon which plaintiff relies here are pleaded in his complaint with particularity. Aside from the appointment of plaintiff, the facts as pleaded are substantially the same as those detailed in the previous opinion, and it is therefore unnecessary to repeat them here.

The defendant in her answer admitted the death of Mary Elizabeth Stagg and the relationship existing between the interested parties. She also admitted plaintiff's demand for the jewelry and her refusal to deliver; she denied the gift causa mortis, and other allegations of the complaint, and by way of special defenses pleaded that the action was barred by the statutes of limitation and by laches.

The original action terminated in a nonsuit. The present case, however, went to the jury on evidence adduced by both parties, and under the instructions of the court.

In both cases the basic contention was that a gift causa mortis was made by Mary Elizabeth Stagg, wife of J. P. Stagg and mother of John A. and Ira Stagg, a few hours before her death on January 19, 1919. The only evidence adduced in the original trial relative to this gift causa mortis was the testimony of Willim Stagg, daughter-in-law of Mary Elizabeth Stagg and wife of John A. Stagg. In the original action no evidence was introduced either in corroboration or denial of the testimony of Willim Stagg on this point. In the instant case it was stipulated between the parties that in view of the fact that the issues involved in this case were in many respects the same issues involved in the previous action, depositions and testimony of certain witnesses given in the previous cause should be received upon the trial of this case with the same effect as though the witnesses were present testifying in the case. The testimony of Willim Stagg was introduced under the stipulation. Therefore it will be noted that in the matter of the gift causa mortis, the testimony in the two cases was identical.

Briefly, the testimony of Willim Stagg was that on January 19, 1919, at Los Angeles, California, Mary Elizabeth Stagg, her mother-in-law, a resident of Anaconda, was in possession of the jewelry in question, claiming it as her own; that Mary Elizabeth Stagg was seriously ill and was taken to a hospital, where she submitted to an operation and died within a few hours thereafter; that just before Mary Elizabeth Stagg went to the hospital for the operation she called the witness to her bedside, spoke of the possibility of her death, gave to her the jewelry in question, and at the same time said, "Give this to Dad Stagg, and he is to keep it for the boys until they are old enough to appreciate it." She also said that at the time Mary Elizabeth Stagg made this statement, Elizabeth Stagg was critically ill and was about to have an operation, and that within a few hours thereafter she died. Willim testified further that after the death of Mary Elizabeth Stagg, in compliance with her request she delivered the jewelry to J. P. Stagg and communicated to him the directions given her by Mary Elizabeth Stagg, and that "J. P. Stagg accepted the jewelry on those conditions."

In Stagg v. Stagg, supra, the evidence stood alone on the matter of the gift causa mortis. While in the instant case evidence was introduced by the defendant on other points, none was introduced on this particular point. So the matter stands in the instant case as it did in the previous one. In that case the court said: "The trusteeship was accepted first by Willim Stagg, and later by James P. Stagg."

The specifications upon which error is predicated here have to do with the refusal to give an offered instruction and the giving of other instructions over objections of the plaintiff.

The first specification of error arises from the refusal of the court to give an instruction offered by the plaintiff, to the effect that the evidence established the gift causa mortis and the trusteeship.

The second specification is based on the giving of an instruction designated No. 18 C 1, the first part of which is as follows: "Among the issues of fact to be decided by you in this case the court calls your attention to that of whether there was or was not a gift causa mortis made by the mother Mary Elizabeth Stagg of the property in question to her two sons, Ira J. and John A. Stagg. A gift causa mortis is elsewhere defined in these instructions. If there was not a gift causa mortis made as alleged in the complaint and within such definition, then it is not necessary for you to go further in your deliberations, and your verdict should be for the defendant."

It will thus be seen that the position of the plaintiff on the refused instruction, and the instruction given, really amounted to a demand upon the court to withhold from the jury the matter of deciding whether there was or was not a gift causa mortis actually made.

The contention of the plaintiff was correct in this respect. There was no evidence in the record on the question, except that of Willim Stagg, so that the matter of the gift stood uncontradicted; and the submission of the proposition to the jury as a question of first importance was prejudicial error.

The instruction is long and involved. It contains several paragraphs and deals with different phases of the case. The first subject for decision, however, called to the attention of the jury, is the question of the actual making of the gift causa mortis; and that feature of the instruction is made paramount by the suggestion that a negative answer may be decisive of the case and that thereafter it might not be necessary for the jury to go further in its consideration of the issues.

The matter of the gift causa mortis under the circumstances became one of law, under section 9325, Revised Codes of 1921, which reads as follows: "An issue of law must be tried by the court, unless it is referred upon consent." This court in an early case said: "Where, in a civil action, the facts are admitted or undisputed, or where the evidence is 'all in one direction,' the only questions for decisions are those of law. There being no conflict in the evidence, and the proofs being such that reasonable men could come to but one conclusion upon them, the case presents, in effect, an agreed statement of facts." Helena National Bank v. Rocky Mountain Telegraph Co., 20 Mont. 379, 51 P. 829, 834, 63 Am. St. Rep. 628; Bean v. Missoula Lumber Co., 40 Mont. 31, 104 P. 869; Consolidated Gold Min. Co. v. Struthers, 41 Mont. 565, 111 P. 152; Conway v. Monidah Trust, 52 Mont. 244, 157 P. 178; Old Kentucky Distillery v. Stromberg-Mullins Co., 54 Mont. 285, 169 P. 734; McIntyre v. Northern Pacific Ry. Co., 56 Mont. 43, 180 P. 971; Stiemke v. Jankovich, 72 Mont. 365, 233 P. 904.

The instruction in another paragraph advised the jury concerning an alleged gift of the jewelry by J. P. Stagg to defendant and concerning the relation of the statute of limitations to the cause if such gift was made. This part of the instruction is in conflict with another instruction given over plaintiff's...