Stagg v. Stagg

• Citation: 300 P. 539,90 Mont. 180
• Decision Date: 16 June 1931
• Docket Number: 6782.
• Parties: STAGG v. STAGG.

300 P. 539

90 Mont. 180

STAGG v. STAGG.

No. 6782.

Supreme Court of Montana

June 16, 1931

Appeal from District Court, Deer Lodge County; George B. Winston Judge.

Action by John A. Stagg, as administrator of the estate of Mary Elizabeth Stagg, deceased, against Barbara Elizabeth Stagg. Judgment for defendant, and plaintiff appeals.

Affirmed.

S. P Wilson, of Deer Lodge, for appellant.

Joseph J. McCaffery, of Butte, for respondent.

ANGSTMAN J.

Plaintiff as administrator of the estate of Mary Elizabeth Stagg, deceased, expressly waiving the tort, brought this action upon an implied contract to recover the value of certain described articles of jewelry alleged to have been owned by the deceased during her lifetime, and which were converted by the defendant. At the close of plaintiff's evidence, the court sustained the motion of defendant for a nonsuit, and judgment for costs was entered in favor of defendant. Plaintiff's motion for a new trial was overruled, and he has appealed from the judgment.

The complaint is in the usual form, and its sufficiency is not challenged. It shows that Mary Elizabeth Stagg died on January 19, 1919, and that John A. Stagg was appointed administrator of her estate on November 19, 1929; that in her lifetime Mary Elizabeth Stagg owned the jewelry described which has an actual value of $15,000; that prior to the commencement of the action defendant wrongfully took the articles of jewelry into her possession with the intent to convert them to her own use; and that plaintiff has demanded that defendant pay him the value thereof, which demand has been refused.

The answer denies that the articles of jewelry were owned by the deceased in her lifetime, puts in issue the value of the jewelry, and, by way of affirmative defenses, alleges, in substance, that James P. Stagg is the father of John A. Stagg, and was the husband of Mary Elizabeth Stagg until her death; that on July 24, 1922, defendant was united in marriage with James P. Stagg; that the articles of jewelry in question were given to defendant by James P. Stagg, the then owner, on May 30, 1922, for and on account of their engagement; that since May 30, 1922, defendant has been in the exclusive possession of the jewelry, claiming the same adversely to all persons more than seven and one-half years before the commencement of the action, and that between the 30th day of May, 1922, and the 16th day of June, 1927, she wore and displayed the articles of jewelry at entertainments where plaintiff was one of the guests present; that this action, which was commenced on December 21, 1929, is barred by statutes of limitations, several of which are specifically pleaded, and that plaintiff is guilty of laches in bringing the action at this time after the death of James P. Stagg, the principal witness for defendant. The reply admits the relationship of the parties, and puts in issue the material affirmative allegations of the answer.

The evidence shows that plaintiff, John A. Stagg, and Ira Stagg are the sons of Mary Elizabeth Stagg and James P. Stagg; that, after the death of Mary Elizabeth Stagg, James P. Stagg and defendant were intermarried; that James P. Stagg died June 16, 1927. James P. Stagg lived in Anaconda. In 1919 John A. and Ira Stagg were attending the University at Los Angeles, Cal. John A. was then married to Willim Stagg. While attending the University, both John and Ira contracted the "flu," and Mary Elizabeth went to Los Angeles to attend them; while there she became seriously ill, requiring a surgical operation, from which she died. She had the articles of jewelry on her person while in Los Angeles, and exhibited them to plaintiff's wife and others. When warned of the serious character of her illness and the necessity for an operation, she called Willim Stagg to her bedside and handed the jewelry to her, saying, "Give these to 'Dad' Stagg, and he is to keep it for the boys until they are old enough to appreciate it." Willim Stagg, in compliance with this request, delivered the jewelry to James P. Stagg after the death of Mary Elizabeth Stagg, and communicated to him the directions given to her by Mary Elizabeth Stagg, and she testified that James P. Stagg "accepted the jewelry on those conditions." James P. Stagg kept the jewelry in his vault at the store operated by him in Anaconda. At different times he permitted Willim Stagg and the defendant to wear some of the jewelry.

John Stagg testified that "the reason I did not take any action to get possession of these diamonds while my father was living, is because they were given to my father to be given to us when, in his discretion, we were old enough to appreciate them, and I would not sue my father when I had no right to obtain them. I knew my father would do the right thing. He generally did do the right thing, and I believe it was my father's wishes that these jewels be turned over to us."

In 1927 plaintiff saw the jewelry in the vault in his father's store. He said he knew that defendant wore the jewelry at times, and that he spoke to his father about it on several occasions, but he knew they were in the vault in 1922 and in 1926 and 1927. He said that the last time he saw the jewelry before his father's death they were in the possession of the defendant. He testified to the conclusion that he considered himself and his brother the owners of the jewelry at all times, though saying that "technically, under the law, we were not the owners."

Defendant's motion for nonsuit raised the questions whether the cause of action is barred; whether under the evidence plaintiff is the proper party to bring the action; and whether plaintiff has been guilty of laches in instituting the action.

The objection that a cause of action is barred by limitations is an affirmative defense (section 9065, Rev. Codes 1921), and the defendant has the burden of proving the facts in support of the plea (Bielenberg v. Higgins, 85 Mont. 56, 277 P. 631). But, when the bar of the statute has been pleaded as a defense, and it appears from the evidence introduced by plaintiff that his cause of action is barred, a nonsuit is proper. Chowen v. Phelps, 26 Mont. 524, 69 P. 54; City of Butte v. Goodwin, 47 Mont. 155, 134 P. 670, Ann. Cas. 1914C, 1012; Ray v. Divers, 81 Mont. 552, 264 P. 673. And, in determining whether plaintiff's evidence sustains defendant's plea, it must, as in the case of a motion for nonsuit on any other ground, be viewed in the light most favorable to plaintiff.

One section of the statutes relied upon as a bar is section 9052, which provides: "For the purpose of computing the time within which an action must be commenced in a court of this state, by an executor or administrator, to recover personal property, taken after the death of a testator or intestate, and before the issuing of letters testamentary or letters of administration, or to recover damages for taking, detaining, or injuring personal property within the same period, the letters are deemed to have been issued within five years after the death of the testator or intestate. But where an action is barred by this section, any of the next of kin, legatees, or creditors, who, at the time of the transaction upon which it might have been founded, was within the age of majority, or insane, or imprisoned on a criminal charge, may, within five years after the cessation of such disability, maintain an action to recover damages by reason thereof, in which he may recover such sum, or the value of such property, as he would have received upon the final distribution of the estate, if an action had been seasonably commenced by the executor or administrator."

Without this statute, the statute of limitations would not commence to run until an administrator was appointed, no matter how long a time elapsed between the time of the death of the deceased and the appointment of an administrator. Haydon v. Normandin, 55 Mont. 539, 179 P. 460.

But the statute of limitations never commences to run until the cause of action accrues. When the conversion takes place before letters of administration are deemed to have been issued, the statute of limitations commences to run at the time fixed by section 9052, for by force of the statute there is then a person deemed to exist who is authorized to bring an action and against whom the statute runs. The purpose of section 9052 was to fix a time when there was a person entitled to sue on behalf of the estate of a decedent against whom the statute of limitations would run on a cause of action already accrued. But, when the conversion takes place after letters are deemed to have been issued under section 9052, the cause of action begins to run, not at the time fixed by the statute, but from the date of the conversion--from the time the cause of action accrues. And, since section 9052 simply fixes the time when the statute is deemed to commence to run on a cause of action already accrued, of necessity resort must be had to other statutes to ascertain when the cause of action is in fact barred.

The right of one whose property has been converted to waive the tort and sue in assumpsit is well settled. First National Bank v. Silver, 45 Mont. 231, 122 P. 584; Young v. Bray, 54 Mont. 415, 170 P. 1044; Galvin v. Mac M. & M. Co., 14 Mont. 508, 37 P. 366; Yancey v. Northern P. Ry. Co., 42 Mont. 342, 112 P. 533; Ivey v. La France Copper Co., 45 Mont. 71, 121 P. 1061.

Where a tort is waived and an action brought on an implied contract, the statute of limitations applicable is that governing the latter form of action. 1 C.J. 1040; Trousdale v. Amerman, 124 Kan. 614, 261 P. 826; Whitaker v. Poston, 120 Tenn. 207, 110 S.W. 1019; note in Ann. Cas. 1913D, 238, and 17 R. C. L. 733, note 5.

The action here involved is founded...