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    CHICAGO & N. W. RY. CO. v. ALVIN R. DURHAM CO., 271 U.S. 251 (1926)

    U.S. Supreme Court

    CHICAGO & N. W. RY. CO. v. ALVIN R. DURHAM CO., 271 U.S. 251 (1926)

    271 U.S. 251

    CHICAGO & N. W. RY. CO.
    v.
    ALVIN R. DURHAM CO. et al.
    No. 257.

    Argued April 20, 1926.
    Decided May 24, 1926.

    Messrs. R. N. Van Doren, of Chicago, Ill., Frank A. Bell, of Negaunee, Mich., and Samuel H. Cady, of Chicago, Ill., for petitioner.[ Chicago & N. W. Ry. Co. v. Alvin R. Durham Co. 271 U.S. 251 (1926) ]

    [271 U.S. 251, 253]   Mr. Julius J. Patek, of Ironwood, Mich. (Messrs. Joseph L. Hooper, of Battle Creek, Mich., Myron H. Walker, of Grand Rapids, Mich., and Solomon W. Patek, of Ironwood, Mich., of counsel), for respondents. [271 U.S. 251, 254]  

    Mr. Justice BRANDEIS delivered the opinion of the Court.

    By an interstate shipment made under the uniform order bill of lading the Chicago & Northwestern Railway received in 1921 at its yards in Ironwood, Mich., a box car containing apples consigned to the shipper's order 'notify F. M. Larson.' The car was placed on the 'team track,' which is one of the public delivery tracks used for unloading freight received in carload shipments and is not connected in any manner with a railway freight warehouse. The next morning at 8:20 o'clock Larson surrendered the bill of lading duly indorsed, paid the freight charges, gave to the railway his receipt for the apples, and commenced unloading the car. On the same day the Alvin R. Durham Company used out a writ of garnishment against the railway, which was served at 9:45 a. m. At that time about one- quarter of the apples had already been taken from the car by Larson. In spite of the service of the writ of garnishment, the railway did not prevent the further unloading. This was not completed until four days later. Meanwhile the car was locked every night by Larson. During this period of un- [271 U.S. 251, 255]   loading, the car was shifted several times by the railway for its own convenience in the use of the team tracks.

    The trial court directed a verdict for the garnishee, on the ground that the railway did not have the custody, control, or possession of the shipment. The Supreme Court of Michigan reversed that judgment (Durham Co. v. Chicago & N. W. R. Co., 224 Mich. 477, 194 N. W. 1014), and held the carrier liable on the ground that, 'under the interpretation of section 5 of the uniform bill of lading, as appears pears in Michigan Cent. R. Co. v . (Mark) Owen (& Co.), 256 U.S. 427 , 41 S. Ct. 554 (65 L. Ed. 1032), ... the railway did have the custody, control, and possession of the interstate shipment.' Id., 229 Mich. 468, 201 N. W. 503. See, also, Chicago & N. W. R. Co. v. Durham Co., 265 U.S. 580 , 44 S. Ct. 455. This court granted a writ of certiorari. Id., 268 U.S. 684 , 45 S. Ct. 635. The sole question for decision is whether the railway is liable as garnishee.

    The facts in the two cases are similar, but the legal questions presented for decision are wholly different. In the Mark Owen Case it was sought to enforce under the federal law an alleged liability in contract of an interstate carrier to the consignee. Whether the railroad was liable depended upon the construction to be given the contract for an interstate shipment contained in the uniform bill of lading. Compare Southern Railway Co. v. Prescott, 240 U.S. 632 , 36 S. Ct. 469. The question was whether, in the absence of negligence, the railroad was liable to the consignee for grapes stolen from the car while on the team track after the unloading had begun, but before the expiration of 48 hours after giving notice of arrival. 1 The [271 U.S. 251, 256]   railroad contended that, under section 5 of the bill of lading, there was no liability, because the surrender of the car to the consignee, followed by breaking the seals and commencement of unloading, constituted a delivery, and that, in any event, its responsibility for the unloaded part of the contents had become that of warehouseman. This court held that, since the theft occurred within the 48-hour period, there had not been, under the contract of the parties as expressed in section 5 of the bill of lading, such a delivery as would terminate the carrier's liability as insurer or reduce the liability to that of the warehouseman's exercise of reasonable care.

    In the case at bar it is sought to hold the railroad liable as garnishee to a stranger. It is not sought to enforce a liability arising under a federal law. As the order bill of lading had been surrendered, the Uniform Bill of Lading Act presented no obstacle to garnishment. Act of August 29, 1916, c. 415, 23, 39 Stat. 538, 543 (Comp. St. 8604l). But that act obviously confers no right to garnishment. Nor is there anything in the bill of lading which conceivably could be construed as either conferring or denying the right of garnishment. The plaintiff does not seek to enforce, as a derivative right, a claim of the consignee against the carrier under the bill of lading. It seeks to reach tangible property confessedly belonging to the principal defendant and to which the carrier confessedly makes no claim either of title or possession. Section 5 of the bill of lading clearly does not authorize a carrier, who had surrendered to the consignee control of the shipment upon surrender of the bill of lading, payment of charges and signing of the usual receipt, any right to recapture control of the unloaded part of the shipment in the event that garnishee proceedings are commenced within 48 hours after such surrender.

    The liabilities consequent upon the character of the custody and control exercised by carrier or consignee arise [271 U.S. 251, 257]   from and are dependent upon the state statutes conferring the right of garnishment, and as such are unaffected by the provisions of the bill of lading. Thus the question whether, under the circumstances, the apples remaining in the car were subject to garnishment, is not one of uniform carrier liability, but, primarily, of procedure, and as such governed by varying views of local policy, legislation and practice. Thus, a garnishee may be under no liability, because the property could have been reached by direct levy. 2 He may be under no liability because of the nature of the claim sought to be enfored,3 or because of the character of the plaintiff, 4 of the principal defendant,5 of the garnishee,6 or of the property sought [271 U.S. 251, 258]   to be reached. 7 And, although no objection may exist upon any of these grounds, the garnishee may be held immune from liability, because the highest court of the state had declared that to allow garnishment, under the circumstances, would be against public policy, as where a carrier having possession, custody, and control of property is held not chargeable by garnishment because the goods were in process of transportation. 8  

    Whether under the law of Michigan the railway was liable as garnishee, we have no occasion to inquire. There is nothing in the uniform bill of lading which would prevent the state court from holding that, although the freight car was in the carrier's possession, it was not liable as garnishee of the contents, because the apples were in the consignee's possession although not unloaded. A person breaking open and taking the contents of a chest in his custody has been held guilty of larceny. Union Trust Co. v. Wilson, 198 U.S. 530, 537 , 25 S. Ct. 766. The state court, however, reversed the judgment of the trial court because it assumed that the liability of the garnishee was fixed by the federal law, and that, under the rule declared in the Mark Owen Case, the railroad was liable. As this was error, the judgment must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Ebert v. Poston, 266 U.S. 548 , 45 S. Ct. 188. Compare Industrial Commission v. Nordenholt Corp., 259 U.S. 263 , 42 S. Ct. 473, 25 A. L. R. 1013; Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109 , 44 S. Ct. 274.

    Reversed.

    Footnotes

    [ Footnote 1 ] Section 1 of the uniform bill of lading provides: 'The carrier or party in possession of any of the property herein described shall be liable for any loss thereof or damage thereto, except as hereinafter provided. ...'

    Section 5: 'Property not removed by the party entitled to receive it within forty-eight hours ... 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. ...'

    [ Footnote 2 ] Madden v. Union Pacific R. R. Co., 89 Kan. 282, 131 P. 552, Ann. Cas. 1914D, 78; Wood v. Edgar, 13 Mo. 451; Gleason v. South Milwaukee Bank, 89 Wis. 534, 62 N. W. 519. Compare Hooper v. Day, 19 Me. 56, 36 Am. Dec. 734; Balkham v. Lowe, 20 Me. 369.

    [ Footnote 3 ] Nesbitt v. Ware, 30 Ala. 68; Cunningham v. Baker, 104 Ala. 160, 16 So. 68, 53 Am. St. Rep. 27; Holcomb v. Winchester, 52 Conn. 447, 52 Am. Rep. 609; Clark v. Brewer, 6 Gray (Mass.) 320; Martz v. Detroit Fire Ins. Co., 28 Mich. 201; Thorp v. Preston, 42 Mich. 511, 4 N. W. 227; Weil v. Tyler, 38 Mo. 545; Selheimer v. Elder, 98 Pa. 154.

    [ Footnote 4 ] Davis v. Millen, 111 Ga. 451, 36 S. E. 803; Shivers v. Wilson, 5 Har. & J. (Md.) 130, 9 Am. Dec. 497. Compare Disconto Gesellschaft v. Umbreit, 208 U.S. 570 , 28 S. Ct. 337.

    [ Footnote 5 ] Edmondson v. De Kalb County, 51 Ala. 103; Danley v. State Bank, 15 Ark. 16; Lovejoy v. Albee, 33 Me. 414, 54 Am. Dec. 630.

    [ Footnote 6 ] Buchanan v. Alexander, 4 How. 20; Fischer v. Daudistal (C. C.) 9 F. 145; Pringle v. Guild (C. C.) 118 F. 655; Moscow Hardware Co. v. Colson (C. C.) 158 F. 199; Allen-West Commission Co. v. Grumbles (C. C.) 161 F. 461; In re Argonaut Shoe Co., 187 F. 784, 109 C. C. A. 632; Glass v. Woodman, 223 F. 621, 139 C. C. A. 167; Forbes v. Thompson, 2 Penn. (Del.) 530, 47 A. 1015; Columbia Brick Co. v. District of Columbia, 1 App. D. C. 351; Millison v. Fisk, 43 Ill. 112; Bivens v. Harper, 59 Ill. 21; Wallace v. Lawyer, 54 Ind. 501, 23 Am. Rep. 661; Allen v. Wright, 134 Mass. 347; Id., 136 Mass. 193; School District v. Gage, 39 Mich. 484, 33 Am. Rep. 421; White v. Ledyard, 48 Mich. 264, 12 N. W. 216; Hudson v. Saginaw Circuit Judge, 114 Mich. 116, 72 N. W. 162, 47 L. R. A. 345, 68 Am. St. Rep. 465; McDougal v. Hennepin County, 4 Minn. 184 (Gil. 130); Clarksdale Compress Co. v. Caldwell County, 80 Miss. 343, 31 So. 790; Ross v. Allen, 10 N. H. 96; Burnham v. City of Fond du Lac. 15 Wis. 193, 82 Am. Dec. 668. Compare Dunkley v. City of Marquette, 157 Mich. 339, 122 N. W. 126, 17 Ann. Cas. 523.

    [ Footnote 7 ] Compare Smith v. Gilbert, 71 Conn. 149, 41 A. 284, 71 Am. St. Rep. 163; Stowe v. Phinney, 78 Me. 244, 3 A. 914, 57 Am. Rep. 796; Massachusetts National Bank v. Bullock, 120 Mass. 88; Rozelle v. Rhodes, 116 Pa. 129, 9 A. 160, 2 Am. St. Rep. 591.

    [ Footnote 8 ] Stevenot v. Eastern Ry. Co., 61 Minn. 104, 63 N. W. 256, 28 L. R. A. 600; Bates v. Chicago, Milwaukee & St. P. Ry. Co., 60 Wis. 296, 19 N. W. 72, 50 Am. Rep. 369. Compare Adams v. Scott, 104 Mass. 164; Rosenbush v. Bernheimer, 211 Mass. 146, 97 N. E. 984, Ann. Cas. 1913A, 1317; Clifford v. Brockton Transp. Co., 214 Mass. 466, 101 N. E. 1092, Ann. Cas. 1914B, 909; Landa v. Holck & Co., 129 Mo. 663, 31 S. W. 900, 50 Am. St. Rep. 459.

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