Williams-Richardson Co. v. New Orleans N.E.R. Co.

ROGERS, J. We are called upon, in this proceeding, to review a decree of the Court of Appeal for the parish of Orleans, affirming a judgment of the civil district court for said parish., The facts of the ease are not seriously disputed. The plaintiff company is located in the city of New Orleans, where it is engaged in a wholesale mercantile business. Among its customers are the firms of W. H. Magee & Co., of Purvis, Miss., and J. T. Magee & Company of Prentiss, in the same state. The defendant is a common carrier, operating a line of railroad between the cities of New Orleans and Meridian; the latter being in Mississippi. Purvis is a town on the line of defendant’s railroad. Prentiss is a town on the line of the Mississippi Central Railroad, which connects with the line of defendant’s railroad at a point in Mississippi. The distance in a direct line between these towns is somewhere between 40 and 50 miles. The distance between them by railroad is somewhat greater. The plaintiff company, on July 21, 1920, delivered to the defendant railroad company at New Orleans a case of cotton goods consigned to W. H. Magee & Co., at Prentiss, Miss. This was, however, admittedly, an error, plaintiff’s intention being to ship the goods to Purvis, Miss. The error, however, was not discovered until some time thereafter, and the shipment went forward to •Prentiss. When it reached that point on July 26, 1920, the agent of the connecting carrier, never having heard of W. H. Magee & Co., assumed that a clerical error had oc *35 curred in the initials, and that the shipment was intended for J. T. Magee & Co., which firm he knew frequently received consignments of goods from the plaintiff, company. He acted upon this assumption, and accordingly delivered the case of goods through a public drayman to J. T. Magee & .Co., which claimed the merchandise, accepted the delivery, and paid the freight. Subsequently the mistake was discovered, ■ and in due time, presumably after it had attempted to secure an amicable adjustment thereof, the plaintiff company instituted this suit to recover the value of the goods. It obtained judgment as prayed for, and the judgment was affirmed on appeal. The Court of Appeal ruled that the carrier must bear the loss incurred by plaintiff, because its paramount duty was to deliver the goods to the consignee; and, if an error in his name was made, defendant should have communicated with the consignor to ascertain the cause of the error. Relator attacks the ruling, contending that the loss was due entirely to the fault of the plaintiff, and that as a carrier it is not liable 'for a misdelivery caused or induced by the error of the shipper in addressing or consigning the shipment. The law governing the delivery of freight by carriers is tersely stated in 4 R. C. L. p. 83S, § 291, as follows: “The duty of a common carrier is not merely to carry safely the goods intrusted to him, but he is also required to deliver them to- the party designated by the terms of the shipment, or to his order, at the place of destination. In fact, no obligation of the carrier is more rigidly enforced than that requiring delivery to the proper person; delivering them to- one not entir •tied to - receive them is a breach of duty, for which the carrier is accountable, and the law will allow no excuse for a wrong delivery except the fault of the shipper himself.” See, also, to the same effect, Hutchinson on Carriers (3d Ed.) vol. 2, § 668, pp. 739, 740. Defendant’s argument that the facts of the present ease bring it within the exception to' the rule would be sound and controlling, if the loss of the goods had resulted solely from their misdirection by the consignor, unaided by a careless breach of duty on the part of the carrier or its agent. But the exception itself is qualified by the further rule that, when it becomes obvious to the carrier or its agent that a mistake has been made in directing a shipment, both good faith and reasonable prudence dictate that the shipment should be held and inquiry made of the consignor for more complete and definite instructions. In such cases, it is not for the carrier or its agent to venture a guess as .to what destination or what consignee the shipper intended and then to forward or to deliver the shipment according to said guess. Weaver v. Southern Ry. Co., 135 Mo. App. 210, 115 S. W. 500, and authorities therein cited. In the case at bar, it is undisputed that the shipment was consigned to W. H. Magee & Co. It was the duty, therefore, of the carrier, to make the delivery to that firm only. When the goods arrived at Prentiss, the agent of the carrier, knowing there was no such firm at that place, and that delivery could not be made, should have warehoused the goods and notified the owner; instead of which he delivered them to the wrong person. Nor can the carrier be excused for making such delivery because its agent acted in good faith and was apparently imposed upon by the party to whom the delivery was made. .Hutchinson on Carriers, ut supra; 4 R. C. L. § 297, pp. 844, 845. While the plaintiff was undoubtedly negligent in directing tbe shipment to Prentiss instead of to Purvis, nevertheless it is clear that'the loss would not have occurred except for the intervening carelessness and inattention of the carrier. The carrier therefore, on its original obligation of insurer must bear the loss. , . *37 Relator cites and relies upon the following eases, viz.: Stimson v. Jackson, 58 N. H. 138; Missouri Iron & Metal Co. v. T. & P. Ry. Co. (Tex. Civ. App.) 198 S. W. 1067; Lake Shore & M. S. R. R. Co. v. Hodapp, 83 Pa. 22; Singer v. Merchants’ Despatch Transportation Co., 191 Mass. 449, 77 N. E. 882, 114 Am. St. Rep. 635; Porter v. Ocean S. S. Co., 223 Mass. 224, 111 N. E. 864; and Phillipson & Co. v. Grand Trunk Western Railway Co., 238 Ill. App. 251. After reading and analyzing these cases, our conclusion is that they are not exactly in point. Stimson v.. Jackson is authority only for the proposition that an express carrier is not liable for a misdelivery through a mistake in the direction of a parcel, if such mistake is not known to, or discoverable by, the carrier and the delivery is made according to the direction and the known course of business at the place of destination. In the case presently before us, the error in the direction of the shipment was noticed by the agent of the carrier, according to the testimony in the record, immediately upon its arrival at Prentiss. Notwithstanding his knowledge of the mistake, he made the delivery by means of which plaintiff has suffered a loss. Missouri Iron & Metal Co. v. T. & P. Railway Co.: The evidence in this case showed that the person to whom the delivery wrns made acted for the consignee in transactions with the consignor. The court held there was prima facie proof of such person’s authority to receive the goods; and there was an absence of any evidence whatever tending to show that the consignees did not receive the goods receipted for by its prima facie agent. The defendant company was accordingly relieved of responsibility for the misdelivery. Lake Shore & M. S. R. R. Co. v. Hodapp: In this case the shipment was received by the carrier in New York addressed- “Leopold Hotelfa,” for delivery at Erie, Pa. It was safely carried to its destination, where it lay in defendant’s warehouse some two months, during which time no inquiry was made for it, whilst, on the other hand, the agents of the carrier made every effort to ascertain the consignee. The agents of the defendant finally concluded that the shipment was intended to be delivered at an establishment known as “Leopold’s Hotel,” the proprietor of which was accustomed to receive consignments of similar character for the numerous immigrants who, from time to time, stopped at his hotel. The contention in the case was that the defendant was liable, not for the extreme care exacted of carriers, but only for the ordinary care required of ware-housemen. The court held that the defendant was not lacking in ordinary care in making the delivery; that, under the state of facts disclosed by the record, it could not be said it should have known it was making a wrong delivery when it committed the package to the proprietor of Leopold’s Hotel; that nothing was more natural than to suppose the direction was intended for that hotel, to await the arrival of some German immigrant who, in his ignorance of the English language, had written or caused to be written “Hotelfa” for “Hotel”; that this view of the matter was strengthened by the fact that Leopold was accustomed to receive consignments of this kind. In the case at b.ar, the shipment was not kept for any length of time by the carrier at the. point of destination, and no diligence was used to ascertain the consignee. On the contrary, immediately upon the arrival of the shipment, and notwithstanding the misdirection was promptly noticed, it was delivered to one not entitled to receive it. The defendant carrier received the case of goods marked, partially, with the initials of the consignee, and it was bound to deliver it ac- *39 ■ cordingly, or to have it remarked, if that was necessary, to insure its safe delivery. Singer v. Merchants’ Despatch Transportation Co.: The plaintiff was L. Singer of Boston, Mass. He consigned the shipment, not covered by a negotiable bill of lading, to L. Singer, of Springfield, 111. The carrier delivered the shipment at destination to Lena Singer, who was in business there, and who had frequently received goods from the plaintiff. The court declared that the contract between the parties was to deliver the goods to L. Singer, Springfield, 111., and that the defendant had performed the cohtract; that the intention of the consignor was immaterial,-if not communicated to the carrier, the rights of the parties depending upon what is so communicated; that the carrier in making delivery is bound to follow that direction, whatever it may mean, under all the circumstances of the case. The court found that the plaintiff had intended 'to pledge the goods shipped as collateral for his draft, for the unpaid balance .Of the purchase price; and it said- to do that he should have had them billed to his own order and then indorsed the bill of lading to the bank discounting the draft. By mistake he billed the goods “straight,” and is now seeking to make the defendant, liable for his own blunder. The court held this could not be done. Porter v. Ocean S. S. Co.: Here the goods were delivered to the carrier by the shipper, through her agent, an expressman. The ex-pressman gave his name as the shipper and the correct name, but wrong address, of the consignee. The mistake was perpetuated in the bill of lading, which was delivered on the same day by the expressman to his principal, the shipper. The shipment was carried forward and delivered at its destination in accordance with the directions set forth in the bill of lading: Thereafter the shipper sued for damáges for misdelivery. It was shown by the' téstimony that, although the bill of lading had been promptly given to the plaintiff,- and that she knew the goods were incorrectly billed so far as the address of the consignee was concerned, she entered no protest nor repudiated the bill of lading until some three months thereafter, when, having been informed of the delivery to the wrong person, she notified the defendant she would hold it responsible for the loss. The court held that, in the absence of fraud, the carrier was justified in relying upon -the bill of lading issued as expressing the entire contract, and that it was not liable for delivering the goods to the consignee indicated therein. Phillipson & Co. v. Grand Trunk Western Railway Co.: The custom between plaintiff and defendant was for the latter, upon receipt of freight, to send notices of its arrival to the former, who thereupon would stamp the notices with a rubber stamp to constitute orders for delivery and send them to its firm of teamsters, to- be used by them as evidence of authority to receive the goods from the carrier. The custom had been followed in the ease at issue, and, the notice in question having been stamped by the plaintiff, consignee, was given to a young boy to be delivered to its teamsters, but the boy lost it or gave it to a stranger. The person who found the notice .or received it from the messenger boy presented it to the defendant, paid the freight charges, and took the goods from defendant’s freight house, The court properly held that the misdelivery was occasioned by the negligence of the plaintiff, and that the defendant was not liable therefor, , For the reasons assigned, the rule nisi herein issued is discharged, and the judgment of the Court of Appeal is affirmed at relator’s cost.