Morgan v. Williams

• Decision Date: 22 February 1918
• Citation: 200 S.W. 650,179 Ky. 428
• Parties: MORGAN ET AL. v. WILLIAMS.
• Court: Kentucky Court of Appeals

200 S.W. 650

179 Ky. 428

MORGAN ET AL. v. WILLIAMS.

Court of Appeals of Kentucky.

February 22, 1918

Appeal from Circuit Court, Mercer County.

Suit by Bess D. Williams against W. B. Morgan and another to recover possession of an automobile. Judgment for plaintiff, and defendants appeal. Affirmed.

J. W Gaines, of Lawrenceburg, and C. E. Rankin, of Harrodsburg for appellants.

E. H Gaither, of Harrodsburg, for appellee.

CLAY C.

Plaintiff, Bess D. Williams, brought this suit against J. R. Holman and W. B. Morgan, to recover possession of a Buick automobile and $100 for its detention. The jury found in favor of plaintiff, and awarded her damages in the sum of $15. 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 James 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 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. Her 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 her an automobile. On asking Mrs. Lyen how she happened not to buy a Ford, she said, "Bessie wouldn't have a Ford." The car was kept in a garage in Mrs. Lyen's yard. Plaintiff drove and used the machine whenever she desired, without asking permission of anybody. While in the possession of the machine she frequently remarked that the car belonged to her. Andy Divine testified that he suggested to Mrs. Lyen the propriety of getting a Ford, but Mrs. Lyen said that Bessie wouldn't have a Ford. Mrs. Bettie Miller testified that Mrs. Lyen told her that she was going to buy an automobile and give it to Bessie to get her to come and live with her. Dr. J. B. Ro Bards testified that on one occasion Mrs. Lyen said that she would never buy a machine. Subsequently she came to see him in regard to a Buick. He said, "I thought you were the lady who wouldn't have one." Mrs. Lyen replied, "I am not buying it for myself; I am buying it for Bess." Mrs. Withers testified that Mrs. Lyen told her that she was going to buy a machine for Bess to get her to come home and live with her. Mrs. Brummett testified that she jokingly said to Mrs. Lyen, "I believe I will come and live with you. Maybe you might buy a machine for me too." Mrs. Lyen said, "No; I couldn't afford to buy one for you and Bessie too." Witness further stated that she heard plaintiff say that the machine was hers in the presence of Mrs. Lyen, and Mrs. Lyen never contradicted the statement. W. G. Worley testified that Mrs. Lyen told him that she had bought the car for Bess. At that time she had already bought the car. Oscar Savage testified that Mrs. Lyen, while making inquiries regarding a Buick car, told him she wanted to buy one and give it to Bessie. He also testified that he saw plaintiff driving the car nearly every day. C. D. Thompson testified that Mrs. Lyen told him that she had bought the car for Bess. John I. Vanarsdall testified that the next day after Mrs. Lyen bought the machine, he remarked to her, "Miss Sue, I see you have bought you a machine." She said, "Not mine, Bessie's." Mrs. McGee and E. R. Draffen testified to the fact that plaintiff while using the car, stated that it was hers.

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 property, and paid for all the gasoline, oil, and repairs up to within a week of her death. A few weeks after the purchase of the machine, Mrs. Lyen made oath that she was the owner of the machine, and registered it in her own name. The machine was kept in a garage owned by Mrs. Lyen, and Mrs. Lyen not only claimed that the machine was hers, but shortly before her death authorized an agent to sell it because she intended to move away. After the death of Mrs. Lyen, plaintiff delivered the machine to defendants without protest.

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...