Alvin R. Durham Co. v. Chi. & Nw. Ry. Co.

• Citation: 201 N.W. 503,229 Mich. 468
• Decision Date: 31 December 1924
• Docket Number: No. 77.,77.
• Parties: ALVIN R. DURHAM COMPANY, Plaintiff and Appellee, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, Garnishee Defendant, Appellant, and Fred M. Larson, Principal Defendant.
• Court: Supreme Court of Michigan

229 Mich. 468

201 N.W. 503

ALVIN R. DURHAM COMPANY, Plaintiff and Appellee,

v.CHICAGO & NORTHWESTERN RAILWAY COMPANY, Garnishee Defendant, Appellant, and Fred M. Larson, Principal Defendant.

No. 77.

Supreme Court of Michigan.

Dec. 31, 1924.

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

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Frank A. Bell, of Negaunee (R. N. Van Doren, of Chicago, Ill., of counsel), for appellant.

Solomon W. Patek, of Ironwood, for appellee.

BIRD, J.

This case was in this court on a former occasion, and will be found reported in 224 Mich. 477, 194 N. W. 1014. The question involved therein was whether, under a conceded state of facts, defendant railway company, as garnishee defendant had in its custody, control, and possession a certain interestate shipment of apples.

The testimony admitted convinced the trial court that the railway did not have the custody, control, or possession of the shipment and therefore directed a verdict in its behalf. On error in this court it was held, under the interpretation of section 5 of the uniform bill of lading, as appears in Michigan Central Railway Co. v. Owen, 256 U. S. 427, 41 S. Ct. 554, 65 L. Ed. 1032, that the railway did have the custody, control, and possession of the interstate shipment, thereby reversing the conclusion of the lower court. The case has been retried in the trial court, and a verdict directed for plaintiff in accordance with the holding of this court. By writ of error the case has reached this court again, quite likely to facilitate the removal of it to the federal Supreme Court.

The same questions are reargued in counsel's briefs as were argued on its first appearance. There appears to be no new questions raised. We may dispose of the matter by saying we are still of the opinion that the interpretation given to section 5 of the uniform bill of lading by Mr. Justice McKenna in Owen v. Michigan Central Railway, supra, must determine the case adversely to the contention of the railway garnishee.

The judgment is affirmed.