Alvin R. Durham Co. v. Chi. & N. W. Ry. Co.

• Decision Date: 01 October 1923
• Docket Number: No. 7,June Term.,7
• Citation: 194 N.W. 1014,224 Mich. 477
• Parties: ALVIN R. DURHAM CO. v. CHICAGO & N. W. RY. CO. et al.
• Court: Michigan Supreme Court

224 Mich. 477

194 N.W. 1014

ALVIN R. DURHAM CO.

v.CHICAGO & N. W. RY. CO. et al.

No. 7, June Term.

Supreme Court of Michigan.

Oct. 1, 1923.

Error to Circuit Court, Gogebic County; George O. Driscoll, Judge.

Garnishment by the Alvin R. Durham Company against the Chicago & Northwestern Railway Company, as garnishee of defendant Fred S. Larson. Judgment for garnishee, and plaintiff brings error. Reversed, and new trial granted, with costs to plaintiff.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.Solomon W. Patek, of Ironwood, for appellant.

Frank A. Bell, of Negaunee, for appellee.

BIRD, J.

Plaintiff had a judgment against the principal defendant of $1,099. On October 7, 1921, an interstate shipment of apples arrived in Ironwood over garnishee defendant's line, consigned to Larson, the principal defendant. The next morning Larson paid the draft attached to the bill of lading, paid the freight charges, and the car was opened, and he commenced unloading the apples at 8:20 a. m. At 9:45 a circuit court garnishee summons was served on the railway company. At this time about one-quarter of the apples had been taken from the car. The railway company made no effort to stop further delivery, and answered the garnishee summons by denying that it had any property in its possession, or under its custody or control, belonging to Larson. The plaintiff was not content with this return, and followed the practice provided by the statute for making the truth of the return an issue. A jury was impaneled, but it was finally agreed that the question was one of law, and that the trial court might determine it.

The trial court was of the opinion that the railway company had done everything it could to make a delivery of the apples, and therefore held the return was true at the time the summons was served upon it.

It is the contention of plaintiff that the trial court was in error. That perforce of section 5 of the bill of lading, the railway, as a carrier, continues for 48 hours after the consignee has notice of its arrival, and that inasmuch as the garnishee summons was served before the expiration of that time, the garnishee defendant did have in its possession, and under its custody and control, property belonging to the principal defendant. The question as to whether the garnishee defendant did have in its possession, and under its custody and control, property belonging to the consignee, is the question before us for solution.

Section 5 of the uniform bill of lading prescribed for interstate shipments provides that:

‘Sec. 5. Property not removed by the party entitled to receive it within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given may be kept in car, depot, or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier's responsibility as warehouseman only, or may be, at the option of the carrier, removed to and stored in a public or licensed warehouse at the cost of the owner and there held at the owners' risk and without liability on the part of the carrier, and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage.

‘The carrier may make a reasonable charge for the detention of any vessel or car, or for the use of tracks after the car has been held forty-eight hours (exclusive of legal holidays), for loading or unloading, and may add such charge to all other charges hereunder and hold such property subject to a lien therefor. Nothing in this section shall be construed as lessening the time allowed by law or as setting aside any local rule affecting car service or storage.’

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