Price v. Haney

163 So. 684, 174 Miss. 176, 1935 Miss. LEXIS 40

• Court: Mississippi Supreme Court
• Decided: October 28, 1935
• Docket: No. 31866.
• Status: Published

Opinions

Appellee brought this action of replevin in the circuit court of Simpson county for the possession of a motortruck, and for damages for its detention, against appellants, Joe S. Price, state auditor, and Mississippi Fire Insurance Company, surety on his official bond. There was a judgment for appellee for the possession of the truck, which he had taken on a forthcoming bond, and for damages in the sum of one hundred dollars for its unlawful taking and detention.

Appellee was hauling for hire for the American Oil Company a truck load of gasoline, oils, and greases from Hattiesburg to Kosciusko. He was using a Ford truck, upon which he had paid the road and bridge privilege tax authorizing him to carry a maximum of one and one-half tons over the public highways of the state. On this particular occasion he was carrying gasoline, oil, and greases weighing five thousand nine hundred sixty pounds, or approximately three tons. When he reached Magee in Simpson county he was approached by one Greer, a highway patrolman employed by the State Auditor by virtue of the provisions of section 19, chapter 126, Laws 1934. Greer made an examination of the invoices and bills of the load and discovered that it amounted to about three tons, nearly one and one-half tons more than his privilege tax authorized. Greer removed the tag from the truck and demanded that appellee increase his privilege tax to cover three tons before he removed further. Appellee made an effort to secure the money to pay the additional tax, but was unsuccessful. Greer advised appellee that if he undertook to operate his truck over the public highway without paying the additional tax he would arrest him as he had a right to do under the law. The truck remained in Magee from the 8th to the 10th day of August, when appellee sued out the writ of replevin for the truck. The sheriff of the county thereupon took the truck in possession under the writ.

There was a conflict in the evidence with reference to whether Greer arrested appellee; the latter contended that he thought he was under arrest, while Greer testified that he made no arrest. Greer's testimony is corroborated by appellee's admission that he did not remain with Greer all the time.

There was no dispute as to the weight of the load, and none as to the privilege tax paid by appellee which was for a maximum load of one and one-half tons.

It is argued by appellee that the evidence failed to show that he did not have a special permit to haul that particular overload as authorized by statute. In the first place, the burden was on appellee to show the special permit, if it existed; that was a matter peculiarly within his knowledge. As a witness in his own behalf he admitted time and again, both in his direct and cross examination, that he was overloaded, and was making every effort he could to get the money to pay the additional tax. He said nothing about a special permit; if he had it, he certainly was called on to say so.

Greer's duties with reference to the truck are in part set out in the last paragraph of section 21, chapter 126, Laws of 1934, as follows: "All taxes, penalties and costs imposed by this act shall constitute a first lien on any motor vehicle operated in violation of the provisions hereof, and any such motor vehicle shall be subject to being seized and impounded to enforce collection thereof. Any sheriff, deputy sheriff, constable, police officer or any other officer authorized to make an arrest is hereby authorized to arrest without warrant any person operating or driving any motor vehicle contrary to the provisions of this act within the limits of their respective jurisdiction and/or to seize and impound any motor vehicle being operated in violation of the provisions hereof. In case of such arrest or seizure, proceedings shall be had as provided by section 5582 of the Code of 1930."

The court refused appellant's request for a directed verdict. We think this was error. Under the plain provisions of the statute, Greer had a right to seize and impound the truck pending the necessary legal proceedings to enforce the payment of the additional license tax. It is true he had no right to hold the truck indefinitely without taking steps for that purpose. However, the record does not show an unreasonable delay; he seized the truck on the 8th of August, and on the 10th appellee brought replevin for it. Appellee had an easy and effective way of regaining possession of his truck by paying the additional tax.

Reversed, and judgment here for appellants.