Pacific Express Co. v. Shearer

Mr. Chief Justice Craig delivered the opinion of the court: . On the trial in the circuit court before the court, without a jury, the court held as law ten propositions submitted by the appellees and refused four propositions submitted by the appellant. The ruling of the court on the propositions submitted led to a judgment in favor of the appellees, the plaintiffs in the action, and that judgment was affirmed in the Appellate Court. When this case was first submitted we were inclined to reverse the judgment and remand for another trial, but upon a petition for a rehearing, on a further consideration of the case, we have reached a different conclnsion. Appellees’ third and fourth propositions held were as follows: 3. “To relieve the defendant from legal liability in this action it is not enough that the evidence should prove that the man to whom the defendant’s agent at Chetopa delivered the package in controversy was in fact the man, and was sufficiently identified to said agent as the man, whose telegram to the plaintiff in evidence caused them to send by express, as they did, the package in question. 4. “The defendant in this case, on receiving the package in controversy addressed to J. C. Stubblefield, Chetopa, Kansas, became, as common carrier, an insurer of the safe delivery of said package to J. C. Stubblefield, Chetopa, Kansas, and nothing except the act of God or of the public enemy could discharge the defendant from the duty of so delivering it.” Appellant’s first refused proposition was as follows: ■ “If the defendant’s agent delivered the package in controversy to the identical person in response to whose telegraphic order the plaintiff sent the same, in good faith, believing such person was J. C. Stubblefield and the person named as consignee, and if, at the time of the delivery of the package in controversy, the defendant’s agent correctly ascertained that the person who demanded it and to whom it was delivered was the identical person in response to whose order the plaintiff sent the same, and that plaintiffs had accepted the order of such person and acted npon the same as the order of J. C. Stubble-field, and if, before the delivery of the package in controversy, the defendant’s agent made reasonable efforts and exercised reasonable and ordinary care and diligence to ascertain the identity of the person who demanded the delivery and to whom the delivery was in fact made, and then made such delivery without knowledge or reason to believe that the person to whom such delivery was made was not the person to whom such package was addressed, then the plaintiffs can not recover in this action, and the finding and judgment must be for the defendant.” It is apparent from the record that the package was delivered to the person in response to whose telegraphic order appellees sent the package, appellees at the time believing such person to be J. C. Stubblefield; and it is no doubt also true that at the time of delivery the agent of appellant ascertained that the person who demanded the package, and to whom it was delivered, was the person in response to whose order appellees sent the same, and that appellees treated the order for the money as the order of J. C. Stubblefield; and it may also be true that the agent used reasonable diligence to ascertain the identity of the person who demanded the package before it was delivered. Would these facts relieve the carrier of liability for delivering the package to a person to whom it was not consigned ? In Hutchinson on Carriers (sec. 344) the rule with reference to delivery is stated as follows: “Ho circumstance of fraud, imposition or mistake will excuse the common carrier from responsibility for a delivery to the wrong person. The law exacts of him absolute certainty that the person to whom the delivery is made is the party rightfully entitled to the goods, and puts upon him the entire risk of mistakes in this respect, no matter from what cause occasioned, however justifiable the delivery may seem to have been or however satisfactory the circumstances or proof of identity may have been to his mind, and no excuse has ever been allowed for a delivery to a person for whom the goods were not directed or consigned.” In United States Express Co. v. Hutchins, 67 Ill. 348, where an action was brought against the express company for its failure to deliver a package of money left with it to be carried and delivered, this court said in regard to the liability of the company (p. 350): “They became insurers for its safe delivery. Being so, nothing can excuse them from their obligation safely to carry and deliver, but the act of God or the public enemy. This rule of the common law, the rigid application of which has given so much satisfaction and security to the commerce of nations, is properly invoked in cases like this.” In Baldwin v. American Express Co. 23 Ill. 120, where an action was brought against the company to recover the value of a package of money which it,. as common carrier, undertook to carry from Chicago to Madison, Wis., and deliver to a certain named person, it was held to be the settled doctrine of England and of this country that there must be an actual delivery to the proper person, and in no other way can the company discharge itself of responsibility as a common carrier, except by proving that it has performed such engagement, or has been excused from the performance of it, or been prevented by the act of God or the public enemy. After citing authorities in support of this position it is said (p. 123): “It is necessary, in order to give one security to property, this rigid rule should obtain, and it has for years been enforced against common carriers. They are considered as insurers, and are under that responsibility.” In Gulliver v. Adams Express Co. 38 Ill. 503, the rule announced in the case last cited was sanctioned and approved. In American Merchants’ Union Express Co. v. Milk, 73 Ill. 224, an action was brought against the company to recover for a package of money delivered to the company in DuPage county, to be forwarded to Kankakee. When the package arrived at its destination the agent of the company delivered it to a certain person on a forged order of tlie consignee. It was held that it is the duty of an express company, upon receiving a package of money to be forwarded, to safely carry and deliver it to the consignee, and the only way it can relieve itself from responsibility as a common carrier is by showing performance, or its prevention by the act of God or the public enemy, and that it is not discharged by delivering the same to another on a forged order of the owner. The same doctrine is announced in American Merchants’ Union Express Co. v. Wolf, 79 Ill. 430. The decisions of this court are believed to be in harmony with the law as declared in the text books and as announced by a large majority of the courts of last resort of the country. The law requires at the hands of the carrier absolute certainty that the person to whom the delivery is made is the real person to whom the goods have been consigned, and the carrier cannot escape liability on the ground that deception, imposition or fraud may have 'been resorted to by an impostor to obtain from the agent of the carrier the goods entrusted to its care. The business interests of the country, as well as the rights of a consignor who pays a liberal price for the transmission of his property, alike demand that the carrier should be held to a strict accountability. There are a number of cases in the books where a delivery of goods has been made by the carrier to the wrong person under circumstances not unlike the facts under which the money was delivered here, where the carrier was held liable. In American Express Co. v. Fletcher, 25 Ind. 493, a person pretending to be J. O. Riley called on the telegraph operator and agent of the express company and sent a telegram to plaintiff requesting a certain sum of money by express. In a short time the same agent received by express a package of money addressed to J. O. Riley. The person who had sent the telegram for the money called on the agent and operator and demanded the package of money, which was delivered over to him. Subsequently it turned out that the person who sent the telegram and to whom the money was delivered was not J. 0. Riley, and the express company was held liable for the money. In the decision of the case the court, among other things, said: “The' express undertaking of the appellant was to deliver the package to J. 0. Riley in person. The utmost that the answer alleged was, that the delivery was to another person who pretended to be Riley. He identified himself merely as having so pretended on the day before, by transmitting a telegram in Riley’s name. This was no better evidence that his name was Riley than if he had so stated to the express agent or any third person. That the package had been sent in response to a telegram purporting to be from J. O. Riley simply proved that Riley had credit, <or some arrangement with the plaintiff to furnish him money, and that the package was sent to him,—not that he was the person who sent the dispatch or that any one pretending to be him was to receive it.” Southern Express Co. v. Van Meter, 17 Fla. 783, is another case in point. There an instruction had been given which was, substantially, that the express company, without reference to the party who may have ordered the money sent or who may have telegraphed for it, was bound to deliver to the plaintiff if it was sent to him and he was the owner. On behalf of the express company it was insisted that the instruction did not announce a correct rule of law, but the court held otherwise, and said: “This instruction, viewed in reference to the testimony, is' nothing more than that a forged telegram is no excuse for the delivery to a party not the owner and to whom it was the contract of the carrier to deliver it. * * * Notwithstanding the forged telegram, this carrier, in making a personal delivery, was bound by law to deliver to the person to whom the package was addressed, he being its true owner. It is the settled doctrine of England and this country that there must be au actual delivery to the proper person, * * * and in no other way can the carrier discharge his responsibility, except by proving he has performed such engagement or has been excused from performance, or been prevented by the act of God or a public enemy.” See, also, American Express Co. v. Stack, 29 Ind. 27. Price v. Oswego, etc. Co. 50 N. Y. 213, is an interesting case on' the question. There the person who ordered the goods in the name of a fictitious firm, S. H. Wilson & Co., was the same person who received and receipted therefor in the name of such fictitious firm. It seems that the referee found “that the delivery by the carrier was to the same person who made the order for the goods,” and he also found, as a conclusion of law, that the delivery to such person, without notice of fraud, relieved the carrier of liability. But the Court of Appeals reversed the judgment and held the carrier liable, and among other things said: “It would hardly be claimed, in case there had been a firm doing business at Oswego under the name of S. H. Wilson & Co., a swindler would make himself consignee of goods, or acquire any right whatever thereto, which were in fact consigned to such firm, simply by showing that he had forged an order in the name of the firm directing such consignment. If he would not thereby acquire any right to the goods, delivery to him would not protect the carrier any more than if made to any other person.” Duff v. Budd, 7 Eng. C. L. 399, is also a case in point. There the person who received the goods was the same who ordered them in a fictitious name, but it was held the carrier had no authority to deliver them to such person and the owner was entitled to recover of the carrier. Dunbar v. Boston, etc. Co. 110 Mass. 26, and Edmunds v. Merchants, etc. Co. 135 id. 283, are relied upon by the appellant to sustain the delivery of the package. In the first case cited, one John P. Gorman called on Dunbar, in Boston, and represented that he was John H. Young, of Providence, Rhode Island. He purchased on credit a quantity of goods and had them consigned to John H. Young, Providence, Rhode Island. Upon the arrival of the goods in Providence, Gorman, who had made the purchase in person, presented himself to the carrier, and, as the agent of Young, demanded the goods. The goods having been delivered to him, Dunbar sued the carrier for a misdelivery, but the court held that the action would not lie. The decision, as we understand it, is predicated on the ground that the goods were consigned and delivered to the person who actually, in person, made the purchase under an assumed name. In the other case it appeared that “a swindler, claiming to be Edward Pape, of Dayton, Ohio, purchased goods from plaintiff by personal negotiation. There was a man whose true name was Edward Pape, in Dayton, Ohio,—a reputable business man, who the plaintiff supposed the swindler to be. The goods were delivered by plaintiff to the defendant, to be carried to Dayton and delivered to Edward Pape. The defendant delivered to the swindler.” The court held that the carrier was not liable. In the opinion the court said: “The sale was voidable by the plaintiff, but the carrier, by whom they were forwarded, had no, duty to inquire into its validity. The person who bought them, and who called himself Edward Pape, owned the goods, and upon their arrival in Dayton had the right to demand them of the carrier. In delivering them to him the carrier was guilty of no fault or negligence. It delivered them to the person who bought and owned them, who went by the name of Edward Pape, and thus answered the directions upon the package, and who was the person to whom the plaintiff sent them.” There is a marked distinction between these cases and the one under consideration, and they cannot control here. Another case relied upon is Samuel v. Cheney, 135 Mass. 278. That case, in its facts, is more like the one under consideration than any that has been cited by appellant, and it seems to sustain the position of appellant. But while we recognize the ability of the court in which the case was decided, we do not regard the rule laid down as the correct one, and we are not inclined to follow it. Some other cases have been cited in the argument of counsel, but it will not be necessary to refer to them here. The cases bearing on the question are not entirely harmonious, but the rule adopted in this State and in the courts of many other States, that the carrier is an insurer for the safe delivery of the goods to the person to whom they are consigned, is, as we think, the only safe rule to be adopted. This rule gives protection to the consignor, who pays his money to the carrier to transport and deliver goods to the consignee, and at the same time imposes no unreasonable responsibility on the carrier. When money or goods have been delivered to a carrier to be carried and delivered to a certain named person, when they reach their destination it is the business of the agent of the carrier to deliver to the real person to whom they are consigned, and, as said by Hutchinson, no circumstance of fraud, imposition or mistake will excuse the common carrier from responsibility for a delivery to the wrong person. Where the consignee is unknown to the agent of the carrier, it is his duty to hold the goods until the consignee furnishes ample proof that he is the person to whom the goods were consigned. When Shearer & Co. received the telegram from J. C. Stubblefield, and forwarded a package of money directed to J. C. Stubblefield, they supposed and believed the order came from the man with whom they had previously had dealings and with whom they we're personally acquainted, and when they delivered the package to the carrier it was consigned to him. The fact that an impostor had sent a telegram in the name of J. C. Stubblefield, and a reply to J. C. Stubblefield was returned which was delivered to the impostor, did not authorize the agent of the carrier to deliver the package directed to J. 0. Stubblefield to an impostor representing that he was J. 0. Stubblefield. Here the package of money was consigned to J. C. Stubblefield, and the carrier was directed to deliver the money to him and to him only. This was not done. The money was never delivered to J. 0. Stubblefield, but the agent of the' carrier delivered it to an impostor, and for a failure to deliver the package to J. 0. Stubblefield the carrier is liable. The judgment of the Appellate Court will be affirmed. Judgment affirmed.