Hardin v. Rogers

• Decision Date: 29 August 1916
• Docket Number: 3791
• Citation: 37 S.D. 455,159 N.W. 63
• Parties: JAMES D. HARDIN, Plaintiff and respondent, v. BURT ROGERS, Administrator, et al. Defendant and Graham, Defendant and Appellant.
• Court: South Dakota Supreme Court

37 S.D. 455, 159 N.W. 63 (1916)

JAMES D. HARDIN,

Plaintiff and respondent,

v. BURT ROGERS,

Administrator, et al.

Defendant and

Graham,

Defendant and Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Lawrence County, SD

Hon. James McNenny, Judge

#3791--Affirmed

Robert N. Ogden, Robert N. Ogden, Jr.

Attorneys for Appellant.

C. Strode, John H. Rogers, D. M. Vinsonhaler

Attorneys for Respondent.

Opinion filed August 29, 1916; Rehearing denied November 29, 1916

GATES, J.

The plaintiff was at one time president and general manager of the Branch Mint Mining & Milling Company. Pursuant to litigation (see Phillips v. Branch Mint Mining & Milling Co., 27 S.D. 350, 131 N.W. 308, and Hardin v. Union Trust Co., 191 Fed. 152, 111 C.C.A. 632), the defendant Graham claims to have become the owner of the property of the company. The plaintiff was in possession, he claims, under an agreement made with a lessee company, known as the Branch Mint Operating Company, which latter company, it is claimed, was not made a party to the litigation. Plaintiff was ejected from the premises. Graham took possession, and placed McKay in charge as caretaker and general supervisor. The evidence on behalf of plaintiff tends to show that McKay burned a lot of valuable papers belonging to plaintiff, which were in the office building upon the premises when Graham took possession. This action was brought against Graham and McKay to recover damages for the destruction of those papers. By a second cause of action plaintiff sought to recover damages for an alleged arrest of plaintiff; but as the court took that cause of action from the jury, it need not be further considered, since plaintiff has not appealed. Verdict and judgment were rendered against both defendants in the sum of $3,500. From the judgment and an order denying a new trial, defendant Graham appeals. Subsequently to the entry of judgment, defendant McKay died, and his administrator, Rogers, was substituted as defendant.

Appellant's argument is arranged under seven heads, but all of the propositions urged relate to the claimed insufficiency of the evidence to sustain the verdict and to the claim that the verdict was excessive. Under the first proposition appellant argues that the evidence was insufficient to show: (a) What property was destroyed; (b) the ownership of the destroyed property by plaintiff; (c) the value of the property; and (d) the agency of McKay. Isolated portions of...