Pollard v. Borneman , 47 S.D. 622 ( 1924 )

POLEEY, J.

On and prior to September 26, 1920, plaintiff, was operating a number of taxicabs on the strees of iSioux Falls. On the date mentioned parties vaguely described as federal officers, prohibition officers, etc., took one of these cars from the driver thereof, and placed1 it in a garage that was operated by defendants. Later in the day, plaintiff hearing of the incident, went to defendants’ garage and demanded his car. He was told that it had been placed there by federal officers and that he could not have it. At intervals for several months thereafter plaintiff went to defendants’ garage and asked for his car, but was refused. Finally he was told that he could have his car if he would produce the storage check that had been given out when the car was brought in and pay the storage charges. Plaintiff had never had the storage check and refused to pay any storage charges. After defendants had kept the -car for something over a year, plaintiff 'brought this action to recover its possession or its value in case possession could not be had. Plaintiff had judgment, and defendants appeal.

At the trial defendants -failed to establish any right whatever to detain the car. The car belonged to plaintiff, and he had a right to its possession unless defendants had a better right, and they had the burden of showing such right. This they failed to do. Nor was plaintiff under any obligation to pay defendants storage or to return the storage check. He did not place the car in defendants’ garage, nor assume any liability for its storage. There was no privity of contract whatever between plaintiff and defendants.

There was such a total lack of justification for detaining the car by defendants that there was nothing to do at the trial but to determine the amourit of the judgment tO' which plain tiff was entitled. And the appeal is so utterly without merit that it could have been taken for no other purpose than to delay plaintiff in collecting his judgment. For this reason plaintiff will be awarded damages, for such delay, of 10 per cent, of the amourit of the judgment as provided by subdivision 5, section 2601. Code 1919.

The judgment and order appealed from are affirmed.

DILLON, J., not sitting.

Note.- — Reported in 201 N. W. 525. See, Headnote (1), American Key-Numbered' Digest, Livery stable and garage keepers, Key-No. 6, Motor vehicles, 28 Cyc. 43 (1925 Anno.); (2) Replevin, Key-No. 70, 34 Cyc. 1502 (1926 Anno.); (3) Costs, Key-No. 260(4), 15 C. J. Sec. 692.