This action is in claim and delivery for an automobile, commenced by service on December 3, 1919, of the summons and the usual claim and delivery papers. On a former trial a verdict was directed by the Judge for the plaintiff, and on appeal that judgment was reversed, and the case was ordered back to the Circuit Court for trial. 118 S.C. 449; 110 S.E., 676.
After the new trial was granted the plaintiff became sick and died, and his wife, Mrs. Fannie Jackson, was appointed administratrix and was substituted as plaintiff in that capacity. The case was called, after having been continued a number of times, on March 23, 1925, and the attorney for the plaintiff announced that he had written to a member of plaintiff's family that the case was set for trial and that he had not seen any of the parties until on the morning for which the case was scheduled for trial, when plaintiff's son entered the court room and announced that his mother and brother had pneumonia and because of illness in the family she was not present.
Defendant urged the Court to try the case at that term of the Court, and the Judge, after hearing counsel for both sides, the one contending that due diligence had not been used and the other contending that it had, decided that the case would again go over, unless defendant would admit all the testimony introduced by the plaintiff at the former trial; that is, the testimony of every witness introduced by the plaintiff at the former trial of the case. The defendant was anxious to try his case, having come prepared to try it, and rather than have another continuance he went to trial in accordance with the Judge's decision; that is, admitted the witnesses testifying in behalf of the plaintiff at the former trial would testify, if present now, as they did then. The jury returned a verdict for $250, the alleged value of the car, together with $500 damages.
Judgment was entered after a motion for a new trial was made, and refused upon the grounds: First. That the verdict *Page 335 was against the weight of the evidence. Second. The Judge abused his discretion in forcing the defendant to admit the testimony of plaintiff's witnesses. Third. The Judge erred in charging the jury that the burden was on the defendant to prove that he acquired the car by purchase on the land trade and not on the plaintiff to prove that he loaned the car to defendant and to prove his case by the preponderance of the evidence.
The third allegation in the complaint is:
"(3) That on the said day the defendant obtained possession of the said automobile in this wise: That he represented himself as the owner of a tract of real estate, which he by parol offered to sell to plaintiff and to take automobile on the purchase price thereof, induced the plaintiff to allow him to try out the said automobile, converted it to his own use and benefit, and refuses to deliver the same to plaintiff, notwithstanding due demand has been made therefor; that the said property has been wrongfully converted, withheld, and detained by the defendant from the plaintiff wantonly and willingly for no reason whatever, unless to deprive plaintiff thereof, all of which is to the very great damage of the plaintiff."
The answer of the defendant is:
"(1) That, except as is hereinafter admitted, he denies each and every allegation in said complaint contained, and demands strict proof thereof.
"(2) This defendant admits that he is a resident of Aiken County, and that the plaintiff is such resident, and that the defendant once had possession of the automobile in question: but this defendant alleges that he obtained possession of said automobile by reason of the plaintiff entered into an undertaking with the defendant to purchase a tract of land and to pay the automobile thereon to bind the trade, and the plaintiff later without any fault on the part of the defendant. breached his agreement to purchase the land, and thereafter requested defendant to return the automobile, which plaintiff *Page 336 left with defendant as part payment on the tract of land, the purchase price thereof being $12,000. The only excuse that the plaintiff offered for breaching his agreement was that he did not wish the land, and this defendant stood ready and willing at all times to carry out his contract to convey the land."
The exceptions are eight in number. Under ordinary circumstances the burden of making out the case is on the plaintiff, but no other inference can be drawn from the pleadings in the case than that the plaintiff turned the automobile over to the defendant either for trial by the defendant for a certain purpose or a part payment for a land trade.
The following occurred during the trial: Judge Townsend's position is made plain by the following colloquy between him and appellant's counsel which took place at the close of the charge:
"Mr. Williams: As to the burden of proof, generally that is on the plaintiff.
"The Court: It would be, generally, but where the defendant admits that the plaintiff originally owned the automobile, and claims to have acquired the automobile from the plaintiff or plaintiff's intestate under a contract or agreement with intestate, then in this case the burden of proof as to showing that defendant was entitled to hold it under that trade would be upon the defendant, but upon the other issues the plaintiff has the burden of proof; that is, if the plaintiff asks for damages, it is up to the plaintiff to prove the amount of damages by the greater weight of the evidence."
In the section from Ruling Case Law principally relied on by counsel, as setting out the law of replevin, we find the following language:
"In case the defendant does not deny the allegations of the complaint, but relies entirely on an affirmative defense, the burden is on him throughout to establish his defenses."
In the replevin case cited in the text (Colean Mfg. Co. v.Johnson, 82 Kan., 665; 109 P., 403; 20 Ann. Cas., 296) *Page 337 the Supreme Court of Kansas stated the doctrine to include not only admissions in pleading, but also admissions made in the trial. The defendant in said case was the appellant before the Supreme Court of Kansas. Said the Court:
"The first complaint is that the trial court ruled that the burden of proof was upon appellant. There is nothing substantial in this complaint. At the opening of the trial appellant announced that he would not contest the execution of the notes and mortgage, and that his defenses would be based upon the incapacity of appellee to maintain the action and that the property taken was exempt. In that state of the case it was unnecessary for appellee to prove the execution of the notes and mortgage or the amount due thereon.Mills v. Kansas Lumber Co., 26 Kan., 574. Appellant had the affirmative of the defenses outlined, and the burden was properly placed on him as to these defenses."
The pivotal question, then, is both the state of the pleadings herein and the question of what admissions were made by the defendant in the trial. The complaint alleges that on "the ____ day of November the plaintiff was the owner and in the possession of" the automobile in question, and "that on said day the defendant obtained possession of said automobile," setting out incidentally only the manner of his obtaining possession. The allegations as to these details are mere surplusage, as was held in Osteen v. Lowry, 111 S.C. 218;97 S.E., 244, in which this Court held allegations of the details of plaintiff's ownership in claim and delivery to be mere surplusage.
The action is possessory merely, although title may incidentally come into the case. But the defendant in his testimony freely admitted, and there was no dispute about it in the whole case, that before the land trade came up the automobile was the undoubted property of the plaintiff. He admitted in his testimony that he got into possession of the plaintiff's automobile on the day in question. Hence we have a case of the car which was admittedly the plaintiff's *Page 338 being admittedly in the defendant's possession. Due demand before suit brought was specifically admitted by the pleading. Hence a prima facie case was made out by the admissions in testimony, unless defendant could affirmatively prove his excuse for keeping the automobile.
We see no error in Judge Townsend's rulings, or charge, and the exceptions as to his rulings on the pleadings and burden of proof and measure of damages are overruled. As to the exception as to a continuance, the defendant was given the option of having the case continued until the next term of the Court or of going to trial upon the terms suggested by the Court. They chose to go to trial.
All exceptions should be overruled, and judgment should be affirmed.
MR. JUSTICE BLEASE concurs.