Alvin R. Durham Co. v. Chi. & N. W. Ry. Co.
| Decision Date | 08 June 1927 |
| Docket Number | Oct. Term.,No. 77,77 |
| Citation | 239 Mich. 401,214 N.W. 132 |
| Court | Michigan Supreme Court |
| Parties | ALVIN R. DURHAM CO. v. CHICAGO & N. W. RY. CO. et al. |
OPINION TEXT STARTS HERE
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 M. Larson. Judgment for plaintiff was affirmed. 229 Mich. 468, 201 N. W. 503. The United States Supreme Court reversed and remanded the case on writ of certiorari. 271 U. S. 251, 46 S. Ct. 509, 70 L. Ed. 931. On rehearing. Reversed.
Argued before the Entire Court.Frank A. Bell, of Negaunee (R. N. Van Doren and Samuel H. Cady, both of Chicago, Ill., of counsel), for appellant.
Solomon W. Patek, of Ironwood (Julius J. Patek, of Ironwood, and Myron H. Walter, of Grand Rapids, of counsel), for appellee.
A carload of apples was shipped from a point in the lower peninsula of Michigan to Ironwood in the upper peninsula. In transit it passed through a part of the state of Wisconsin, thereby making it an interstate shipment. Fred M. Larson was the consignee. Plaintiff had a judgment against him and took out a writ of garnishment and served it on the railway company. The company answered that it had no property in its custody or under its control belonging to Larson. At the moment when the writ of garnishment was served, defendant Larson had paid the draft and freight charges and had unloaded a few of the apples. Plaintiff being dissatisfied with the disclosure, demanded an issue as to whether the disclosure was true. The issue was tried by the court, and it decided the issue in favor of the railway. The matter then came to this court on the issue as to whether, under the circumstances related, the railway had under its custody or control property belonging to the consignee. In testing the question of possession and control, we held, under the authority of the case of Michigan Cent. R. Co. v. Mark Owen, 256 U. S. 427, 41 S. Ct. 554, 65 L. Ed. 1032, that the railway did have property of the consignee under its control and custody. 224 Mich. 477, 194 N. W. 1014.
The case was then remanded to the trial court, a retrial was had, and a judgment rendered for plaintiff. This judgment was later affirmed by this court. 229 Mich. 468, 201 N. W. 503.
The Mark Owen Case was an interstate shipment of grapes to the city of Chicago. Like the apples, they had been turned over to the consignee and partially unloaded. Over night the balance of the grapes was stolen. The consignee sued the railway company, and the company sought to avoid liability on the ground that it had delivered them to the consignee, and that it was his loss. The case was begun and carried through the state courts of Illinois, and finally reached the Supreme Court of the United States. That court held that the railway was liable for the...
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