Jarvis v. DePeza

Crosby, J. This is an action of replevin brought in the Third District Court of Middlesex County to obtain possession of an automobile which the plaintiffs and the defendant owned jointly. The trial judge found for the defendant, and also that he was entitled to a return of the property. He further found that as the parties owned the car jointly, the defendant was not entitled to damages. The Appellate Division ruled that no prejudicial error appeared in the record other than the refusal of the trial judge to award the defendant nominal damages, and ordered judgment for the defendant, the return of the automobile, and damages in the sum of SI to be entered for the defendant. Since the parties owned the property in common, each had the right equally with the other to its possession: the plaintiffs were not entitled to the immediate and exclusive possession of the car as against the defendant, and the court correctly ruled that they could not recover. Leonard v. Whitney, 109 Mass. 265, 269. The Appellate Division also rightly ruled that the defendant was entitled to recover nominal damages. Such damages are for the taking by the replevin. G. L. c. 247, § 9. Citizens’ National Bank v. Oldham, 136 Mass. 515. If no actual or substantial damages are shown, a finding for the defendant establishes the fact that as the plaintiffs have invaded the defendant’s right to the property replevined, the law implies that he is entitled to nominal damages. Smith v. Whiting, 100 Mass. 122. Citizens’ National Bank v. Oldham, supra. Whitman v. Merrill, 125 Mass. 127, 130. See also Stowell v. Lincoln, 11 Gray, 434; Seabury v. Ross, 69 Ill. 533; Cardwill v. Gilmore, 86 Ind. 428; Starkey v. Waite, 69 Vt. 193. Sedg. Damages, § 529. The contention of the defendant that he is entitled to substantial damages cannot be sustained: the evidence is not reported, and there is nothing before us to show that he suffered any damage in excess of the amount awarded. The requests, except so far as given, were rightly denied. Order dismissing report affirmed.