Anderson v. Freeman

167 N.W. 143, 40 S.D. 249, 1918 S.D. LEXIS 52

• Court: South Dakota Supreme Court
• Decided: March 26, 1918
• Docket: File No. 4278
• Status: Published

Opinion

GATES, J.

Action for Itlhe possession of an automobile.. Verdict 'for plaintiff for $300 as the ¡value of the auto, $4.37 as interest and $62 .ais damages. Before the entry of judgment plaintiff elected to reduce the item icif $62 to $35, whereupon 'judgment..was entered! aocordingiy. 'Defendant appeals from the judgment -and from tibe denial of a new trial, .and raises three questions.

[1] It is first 'contended ¡that the evidence was insufficient to establish the identity of the machine in defendant’s possession-as the one owned by plaintiff. With one exception the evidence is contradictory. As to the 'exception, .the juiry evidently did not' believe Itihe mfcontiraldi'ctad statement of an interested person as to tibe time he purchased the machine in defendanit’s pos'sesision ■and sold by him to defendant. We think the verdict isi 'controlling upon that question.

[2] It is next 'Contended ¡that the verdict -showed .passion ■anld prejudice qni ithe part of the jury because it returned a verdict for $62 damages. The trial count irec'iteld in the judgment that ¡there was 'ample evidence Ifo sustain the corrected item of $35 -damages. The minimum Value of the miaabine testified to by 'any witness wag $350; yet the verdict only placed the value art $300. We think this amply refutes ¡any -question of passion or prejudice.

[3] lib is next contended that the evidence was -only sufficient to -sustain an item of $17 for damages, that is, under subdivision 3, § 2315, C. C. There wlals 'Sufficient evidence toi show ait least thle expenditure of $30 by plaintiff in -pursuit' of tli-e property; anidl, -although ;tbdre was no express testimony showing the value of plaintiff's time for the 'two days so spent, we cannot say ifhart ¡the verdict should be further reduced- .in view of tine above recital in the juldlgmenlt.

Finding no error in the record, the judgment and order appealed from are affirmed