Gibbons v. Farwell

• Decision Date: 28 October 1886
• Citation: 63 Mich. 344,29 N.W. 855
• Court: Michigan Supreme Court
• Parties: GIBBONS v. FARWELL.

29 N.W. 855

63 Mich. 344

GIBBONS v. FARWELL.

Supreme Court of Michigan

October 28, 1886

Appeal from Detroit superior court.

This is an action of trover, to recover the value of property delivered to a common carrier for transportation, and by him delivered to one claiming to act as United States marshal.

Atkinson & Atkinson, (Alfred Russell of counsel,) for plaintiffs and appellants.

A carrier's duty is to carry goods safely and deliver them to the proper parties. Ang.Carr. 127, 128; Chit.Pl. 155. Conversion is any tortious act that deprives the owner of his goods, wholly or but for a time, (Cooley's Bl.Comm. 150,) or any illegal use of the property, (Giff. Justice, 616,) or contrary to design of bailment, (Bl.Comm. 151; Fisher v Kyle, 27 Mich. 454.) Delivery to wrong person is a conversion, (Ang.Carr. 290, 292; Devereux v. Barclay, 2 Barn. & Ald. 702; Bowlin v. Nye, 10 Cush. 416; Bullard v. Young, 3 Stew. 46; Syeds v. Hay, 4 Term R. 260; Illinois Cent. R. Co. v. Parks, 54 Ill. 294; Esmay v. Fanning, 5 How.Pr. 228;) as is also a misdelivery, (Bissell v. Starr, 32 Mich 298; Edwards v. Frank, 40 Mich. 616; Hicks v Lyle, 46 Mich. 488; S.C. 9 N.W. 529; Barnum v Stone, 27 Mich. 335.) A carrier claiming that a sheriff seized goods must show his authority. Gidday v. Witherspoon, 35 Mich. 368.

Moore & Canfield, for defendant.

SHERWOOD J.

This is an action of trover, to recover the value of 7,000 hop-poles, a part of the cargo of the barge Southampton. The case was once before this court. See 24 N.W. 868.

It appears from the record now before us that, in 1880, John McKay was getting out hop-poles at Schenaux islands, in Lake Huron, and that he made an arrangement with the firm of Johnston & Gibbons, of which the plaintiff is survivor, by which they were to furnish the necessary money and provisions to carry on the work. McKay was to get out the timber and poles, and ship them to Johnston & Gibbons, at Detroit, who were to be the owners of the property; and, when sold by them, McKay was to be paid for his services whatever sum was received for the poles over and above money advanced and goods furnished by Johnston & Gibbons to pay for them. The defendant was the owner of a steam-boat, run by Capt. Rose at this time, and the plaintiff, his partner, made an engagement with the owner to carry a load of goods to the islands, and bring back the property in question to Detroit. The captain, while at the islands, took on board the poles in question, and other property, as furnished by McKay, to carry them to Detroit.

The following is the bill of lading given at the time they were shipped by the master: "CHEBOYGAN, MICHIGAN, September 4, 1880. Shipped, in good order and well-conditioned, by John McKay, agent, for account and at the risk of whom it may concern, on board the barge Southampton, whereof H. Rose is master, bound for Detroit, the following articles, as herein marked and described, to be delivered in like good order and condition, as addressed in the margin, or to his or their assigns or consignees, upon paying the freight and charges as entitled by law, dangers of navigation excepted. In witness whereof, the master or clerk of said vessel has affirmed two bills of lading, of this tenor and date, one of which being accomplished, the other to stand void." The consignment is to Johnston & Gibbons, Detroit, Michigan. Under the head of "Articles" is written, "250 cords cedar posts; 7,000 hop-poles, cedar." Then follow the words "more or less." Under the head of "Lake Freight," is written, "$3 pr. cord on posts," and the bill is signed, "CAPT. H. ROSE."

It appears from the testimony of McKay that he got out the poles for Johnston & Gibbons, and that he acted as their agent in the transaction after the poles were placed on board the boat Southampton. The plaintiff and his partner were notified of the shipment by Mr. Farwell. The barge was taken in tow by a propeller, and, after the cargo arrived at Detroit, the poles were delivered by the master (while, as he claims, he was acting as deputy United States marshal) to C.P. Taylor, (and who, as he claims, was another deputy United States marshal.) This was done by the master without the consent of the consignees or consignor, and, so far as the record shows, the masters never made any attempt to make delivery of any kind of the goods to them, or either of them.

The plaintiff's declaration contains a single count in trover for the value of the poles. The plea is the general issue, with notice that defendant would show the property was taken from the master by legal process, so that delivery to consignees could not be made. The cause was tried in the superior court of Detroit, before a jury, and the verdict was directed by the court for the defendant; the court holding that, under the facts stated in the record, trover would not lie. The plaintiff brings error.

We are not able to agree with the learned judge of the superior court in his decision in this case. In giving his directions to the jury, he said: "In order to establish a case for recovery in trover, there must be shown a wrongful act, and an intentional conversion by the defendant. *** In an action of trover, the defense is complete when the plaintiff shows in making his case, that the property was taken from the defendant without the consent of the defendant. *** The first principle is that the act of the defendant must be shown to be voluntary and intentional. Further than that, the evidence shows the title to have been in another person than the plaintiff, and, under the testimony, the plaintiff cannot recover." Before a verdict can be properly directed by the court for the defendant, all the testimony in favor of the plaintiff bearing upon the issues, given by him and his witnesses, and all making a case for him given on the part of the defendant, if accepted as true, must fail to make out a prima facie case, after the most favorable construction that can be possibly given to such testimony for the plaintiff. Under this rule, what does the testimony show in this case? That the plaintiff and his partner were the owners of the poles in question at the Schenaux islands, in Lake Huron, and had an agent there getting them out, and looking after them, and attending to their shipment. The defendant undertook to carry by water, and deliver to plaintiff and his partner 7,000 poles at Detroit. Defendant carried the...