Slack v. Bryan

• Decision Date: 12 January 1945
• Citation: 299 Ky. 132,184 S.W.2d 873
• Parties: SLACK v. BRYAN.
• Court: Kentucky Court of Appeals

184 S.W.2d 873

299 Ky. 132

SLACK v. BRYAN.

Court of Appeals of Kentucky

January 12, 1945

Appeal from Circuit Court, Scott County; W. B. Ardery, Judge.

Action for claim and delivery of a diamond brought by F. F. Bryan against Mary Bryan Slack. Judgment for the plaintiff, and defendant appeals.

Judgment affirmed.

Fred Lisanby, of Georgetown, for appellant.

Leslie W. Morris, of Frankfort, for appellee.

STANLEY Commissioner.

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 befine 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, 284 Ky. 389, 144 S.W.2d 1031. The answer contained a traverse and the affirmative claim that the defendant acquired title and possession of the diamond through a bequest of her mother, who died in August, 1943; that she got it under the will of her husband, the father of the parties, who died in 1929, and that he got it under the will of his uncle, Jasper Offutt, who died in 1911. The answer pleaded the five-year statute of limitations in bar of the plaintiff's right of action. A plea of laches was also made. The reply only traversed the affirmative claims although the alleged facts with respect to how the diamond came into the defendant's possession were not denied.

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 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 pin 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 of her 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 over 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 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 the 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, 145 Ky. 751, 141 S.W. 70; Morgan v. Williams, 179 Ky. 428, 200 S.W. 650; Chipman's Adm'r v. Gerlach, 286 Ky. 157, 150 S.W.2d 633.

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. 413.120(6); Fidelity & Columbia Trust Co. v. McCabe, 169 Ky. 613, 184 S.W. 1124.

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, Sec. 14, 23; Green v. Hollingsworth, 35 Ky. 173, 5 Dana 173, 30 Am.Dec. 680; Hargis v. Spencer, 254 Ky. 297, 71 S.W.2d 666, 96 A.L.R. 903. In such a case, where the bailee has permissive possession of a chattel without limit of time, the statute of limitations does not run against the bailor's right to bring an action to recover the chattel so long as the bailment lasts. And where there is no limit of time or definite time fixed for the return, or termination is to be at the will of the bailor, there must be a demand made for the return and a refusal or some other act on the part of the bailee of which the bailor has notice which is hostile or inconsistent with the bailment and such as would constitute a denial of the bailment or a conversion of the property. It is then that there is a breach of the express or implied terms of the contract. It is then that the bailor's cause of action accrues and the statute of limitation is set in motion. Bogle's Adm'r v. Thompson, 230 Ky. 538, 20 S.W.2d 173; 6 Am.Jur., Bailments, Secs. 152, 155, 158, 336, 340, 342; 34 Am.Jur., Limitations, Sec. 118; 37 C.J. 840; Whitehead v. Gormley, 116 Okl. 287, 245 P. 562, 47 A.L.R. 171. We may here add that there is a qualification of this rule which we shall note in the course of the opinion.

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, 169 Ky. 613, 184 S.W. 1124, 1125. This is because a plea of limitations is an affirmative...