Grand Trunk W. R. Co. v. City of Lansing

• Decision Date: 20 December 1939
• Docket Number: No. 146.,146.
• Citation: 291 Mich. 589,289 N.W. 265
• Parties: GRAND TRUNK WESTERN R. CO. v. CITY OF LANSING et al.
• Court: Michigan Supreme Court

291 Mich. 589

289 N.W. 265

GRAND TRUNK WESTERN R. CO.

v.CITY OF LANSING et al.

No. 146.

Supreme Court of Michigan.

Dec. 20, 1939.

Action in replevin by the Grand Trunk Western Railroad Company against the City of Lansing, a municipal corporation, and John F. O'Brien, Chief of Police of the City of Lansing, to regain possession of a shipment of slot machines. From judgment for the defendants, the plaintiff appeals.

Judgment reversed and cause remanded, with direction.Appeal from Circuit Court, Ingham County; Leland W. Carr, judge.

Argued before the Entire Bench.

Shields, Ballard, Jennings & Taber, of Lansing (Edward K. Ellsworth, of Lansing, of counsel), for plaintiff and appellant.

Joseph W. Planck, of Lansing, for defendants and appellees.

WIEST, Justice.

This is an action in replevin.

A shipment of slot machines, in the course of interstate commerce from Baltimore, Maryland, to a consignee at Lansing, Michigan, was carried to Lansing in part of the transit by plaintiff railroad company, and delivered to one, not the bill of lading consignee, upon the assertion that he represented the consignee.

Upon the bill of lading consignee demanding the shipment, denying the validity of the delivery made, it was for the carrier to regain possession and to make delivery to the consignee, or show there had been proper delivery. In order to regain possession of the shipment the railroad agents called in the help of the city police, and the shipment in the original packages was found in an old building and seized by the police, as gambling devices and, therefore, claimed to be contraband without right of ownership under the law.

Thereupon the railroad company brought this action in replevin. The declaration was the short form. Defendants in their answer stated: ‘These defendants deny that said articles are the property of the plaintiff and say that the said articles are gambling machines and that no property rights exist with respect thereto, and further says that the said articles were seized by the police department of the City of Lansing in the exercise of its governmental function and pursuant to the intent and purpose of the penal laws of the state of Michigan and of the city of Lansing.'

Upon trial before the court without a jury the circuit judge held that:

‘So far as the proofs go, however, there is nothing in the record, other than hearsay, tending to show that plaintiff was induced by fraud and deceit to make delivery to a party not authorized to receive the same. The consignee has not been a witness, nor has the party who procured the merchandise. It may be noted in passing that some testimony has been offered, purely hearsay in character, indicating that the latter acted with the knowledge and consent of the consignee.

‘The actual situation is that no witness, claiming to have knowledge as to the authority of the person to whom delivery was made, has testified on the trial. As a practical proposition, fraud is not to be presumed. Rather its existence must be established by satisfactory proof. Applying this principle to the instant situation, the conclusion necessarily follows that we cannot assume that delivery was procured by fraud and deceit. The burden rests on the plaintiff here to establish its right to maintain the action, to establish, in other words, its right to the possession of the slot machines. On...