
    UNITED STATES TIRE CO., For account or &c VS WELLS, FARGO EXPRESS CO.
    June 28th. 1918.
    NO. 7365.
    CHARLES' F. CLAIBORNE, JUDGE.
   CHARLES F. CLAIBORNE, JUDGE.

Plaintiff aaaka to raoovar damagaa from tha dafandant for da.lvorlng gooda to a paraon othar than tha onaignaa.

Plaintiff allagaa that^in tha amploy of tha Elaotrio Appiianoa Oompany, aaaumlng to aot in tha nama of aaid Company, hut without authority ao to do, and without intant to dafraud it, gava an ordar to patitionar to ahlp by axpraaa to ona Jamaa Murray at Donaldaonvllla a oortain numhar of automohila tiraa and tuhaa valuad at |5S7,60, and to oharga tha aama to aaid Elaotrio Appiianoa Oompany; that tha plaintiff dalivarad aaid tiraa to tha dafandant tha Walla Fargo Expraaa oonalgnad to Jamaa Murray, Donaldaonvllla) that thara waa in raallty no auoh paraon aa Jamaa Murray) that tha amployaa of tha Elaotrio Oompany had oonaplrad with anothar to dafraud aaid oompany and to imparaonata Jamaa Murray and to aaauma that nama; that tha Expraaa Oompany raoaivad tha tiraa and nagllgantly dalivarad tham to that othar paraon who aaaumad tha nama of Jamaa Murray) that it waa tha duty of tha Expraaa Oompany to dallvar tha aaid tiraa to Jamaa Murray, tha oonaignaa, and that if it had axarolaad dua oara, it oould aaally hava aaoartainad that tha paraon to whom it aotually dalivarad tha tiraa waa not jamaa Murray, tha oonaignaa. Plaintiff tharafora olalma from dafandant tha valúa of tha tiraa dalivarad to Jamaa Murray.

Tha dafandant axoaptad to th'ia patitlon on tha ground that it diaoloaad no oauao of aotion. Tha argumant waa that although tha nama of tha paraon who raoalvad tha tiraa waa hot Jamaa Murray, yat tha tiraa wara dalivarad to tha pa rao» intaadad aa tha oonaignaa and daaignatad aa Jamaa Murray for tha purpose* of the consignment? in other words that the tires had reaohed the person by nam* to whom they were intended to be assigned, whatever was hla real nam*.

Th* exception waa maintainad and th* suit waa dismissed.

Reduoed to its simplest expression the oaus* of aotlon Intended to be aetforth by the plaintiff is, that th* oarrier delivered the goods to th* wrong parson without exorcising due oar* and dlligeno* to asoertaln the identity of th* oonaIgnea,

Th* duty of oarriera upon this subjeot is thua epitomised!

"There la said to be absolutely no exoua* for the oarrier'a delivery to th* wrong person, and he is under th* duty of being absolutely oertaln aa to th* person. No oiroumstanoe of fraud, imposition, or mistake will exouse him. If he has any doubt as to a person who applies for the goods, he should require positive proof of hla identity x x x. Delivery to the wrong person is a conversion even though mad* by inno» oent mistake or through fraud praotioed on tha oarrier x x, A delivery to on* who ordors in a fictitious name or assumes th* nam* of another is a misdelivery". 4 Elliott on contracts $ 3881.

.In 10 C. J. $ 377, 378 the rule is thua stated!

"In oases of delivery to wrong person "no question of oar* arises, for in auoh oos* the carrier aota at its peril and is liable regardless of negllgenoe." "on the question of th* oarrier*a liability for a delivery to the wrong person, it is^SShateriai that the' delivery was aeaured by auoh person through miatake or fraud, even though th* oarrier acting in good faith, was imposed on by auoh person. Th* question is not one of due oara, for tho oarrier, like any other bailee, aota at his peril in making delivery. The law exacta of the oarrier absolute oertainty that the person to whom delivery lo made is rightfully entitled to the goods and plaoos on it the entire risk of mistake x x x ji 878, The rule applies with full force and effect, although the consignee to whom the goods are billed is a fictitious person or-firm in whose name the goods have been fraudulently ordered.n 58 N. E. 560; 133 Mass. 156,

And in I Michie on Carriers Sec. 858 p 551:

"Khere a carrier delivers goods to the wrong person, it is liable for conversion, x x Neither fraud, imposition, nor mistake, will exouse the carrier for delivering goods to the wrong, person. The carrier is liable without regard to the question of due care or negligenoe".

Angell on Carriers $ 324. Wood's Brown on Carriers p 319. Hutchinson on Carriers 344. 6 Cyc p 472. 123 U. S. 727 37 L. R. A. 177. Story on Bail Sec. 540.

Thus in Sword vs Young 14 S. W. 481(Tennessee) Olllenwaters over the assumed and fictitious name of Charles G. Magrander wrote to Sword & Son of Cleveland to send (representing Magrander as a firm name) a brick machine. The machine was shipped and came to Knoxville on the cars of defendant railroad. Olllenwaters presented a bill of lading in the name of "Charles G. Magrander'' and received the machine for which h$ receipted in the same name. The Court held the carrier .liable for misdelivery; "It made no differenoe^said the Court, it' ■ / . that beoause Olllenwaters had the bill of lading^that he was Magrander. It was ..the duty of the carrier to have required him to identify.himself as the consignee. By its failure to do so, Gillenwatera was .enabled to practice a fraud. There is.'no difference between this case and one in which a consignment has been .made to si actual person and the goods delivered by accident, mistake or carelessness to a cheat who represents himself as the real consignee. It is necessary •in both to have proof of identity".

On application for rehearing the court cites with approval Price vs Rrd. 50 N.Y. 213; and refuses a rehearing.

In Price vs RRd. 50 N. Y. 213; 10 Ann Rep 475, the facts were as follows:

Tho plaintiff at Syracuse received a letter signed "S. H. Wilson & Co.," Oswego, directing the shipment to them of a lot of bags. The plaintiff shipped the bags by the defendant railroad. The defendant delivered them at Oswego to a man representing himself as the agent of S. H. Wilson & Co., The ffict was that there was no such person or firm in Oswego, and the letter signed "S. H. Wilson & Co., was only a part of a scheme to defraud the plaintiff. The defense was, as in this case, that the person to whom the bags were delivered was the person who wrote the letter and was the consignee. The Judgment was against the. carrier. The Court said: "But as there was no suoh firm x x delivery could not be made to the consignees ", reversing 58 Barbour 599^and quoting Ward vs Vermont RRd. Duff vs Budd 7 Eng. Corn Law 399; 4 id 540; 4 Bing 476 Stepherson vs Hart.

The case of Winslow vs The Vermont RRd. 42 Vt. 700-, I Am Rep 365-is very similar to the one under consideration. It is thus stated: "They (the goods) were directed to J. F. Roberts, Roxbury, Mass. There was no such person as J. P. Roberts, and no person who was known or passed by that name. Collins, whom the plaintiff well knew as Collins, had represented that there was such a person as J. P. Roberts, in Roxbury, and had induced the plaintiff to consign the goods to that address. Collins then went to. Boston, and awaited the arrival of the goods, and claimed them wider the name of J. F. Roberts, víiich name he assumed for the purpose of getting the goods. The windle was successful". It was claimed in that case^ as in this^one^ "that there was no misdelivery; that the goods were delivered to the very party to whom they were sent, the only J. F. Roberts there was, and that the defendants have therefore fulfilled their contract". But the Court held that J. F. Roberts was the consignee^ and that delivery to any other person was a misdelivery and that if there was no such person, "the goods were for the consignors", and held the defendant company liable^'quoting Stepherson vs Hart. 4 Bing 476 and other.

In American Express Co., vs Fletcher, 25 Ind. 492, the defendants pleaded that "a person pretending to be J. O. Riley dispatched through said operator to the plaintiff* a telegram requesting them to send him #1900.00 by express) that In due time the same agent reoelved by express a paokage purporting to oontaln valuables, addressed to J. O. Riley, whereupon the same person who had dlspatohed the telegram demanded said paokage, and It was thereupon delivered to him". The Oourt said» "without oonslderlng whether the faot* pleaded In the seoond and third paragraph* of the answer would have been admissible In evldenoe under the general denial we are of opinion that those paragraphs were justly held bad on demurrer, x x The. express undertaking of the appellant was to deliver the paokage 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." See also 29 Ind, 27/.

On the same lines are Southern Express vs van Meter 17 Fla 783; 35 Am Rep 107,and Pacific Ex Co., vs. Shearer. 43 N. E. 816) 160 Ill 215) 37 L. R. A. 177 American Express vs Fletcher 25 Inc. 492 and differentiating Dunbar vs RRd 110 Mass, 26 and Edmunds vs Transportation Co. 156 Mass 885 and dissenting from Samuel vs Chenes 155 Mass 278.

The case of Oskamp vs southern Express Co. 56 N. E. 13 (Ohio 1699) Is as follows:

There resided In the town of Hopkinsville on* T, M. Jones of the highest business rating. The plaintiff, of Olnolnnatl, reoelved a written order purporting to be signed by T, M. Jones for the shipment of a lot of Jewelry, The plaintiffs filled the order and shipped the jewelry In « paokage dlreoted to T. M. Jones, The genuine T. M. Jones had not ordered the goods) but the order had bean written by on* Rothschild who had been In Hopkinsville only a few days, The Express company delivered the jewelry to Rothschild upon his representation that he was T. M. Jones, but Without any further Identification by any on*. The Express Company mi held liable.

In Samuel vs Chenez 136 Mass 278; 46 An Rep 467 It la said, on p 470( that the above oases "differ widely In their faota from the oaae at bar and are distinguishable from it".

there are, however, a number of deolslons not In aooord with the principles laid down In the above oases. They exonerate the oarrler when the fraud has been praotloed primarily upon the eonslgnor. They are compiled in 1 Miche & 858 p 553 and In 37 L. R. A. p 180 note, and In 10 C. J. p 826 note 79.

Hlohle thus states that view H 859:

"Ihen the oarrler delivers gooda to the peraon to whom the gooda wore sent, although by false and fraudulent devloes that peraon Impersonates another, to whom the oonalgnor believed he waa sending the gooda, the oarrler la not liable".

But the oonaervatlve opinion aeema to be that the oarrler la liable when In delivering the gooda It falls to exerolae proper ears to Identify the party olalmlng them, and when the exerolae of that oare might have led to the dlaoovery of the fraud or prevented Its consummation. 43 Mo. App 659 (663);42 S. W. 786; 1017; 10 C. J. $ 379 p 266; 267 note 80; 37 L. R. A. 177 (184 last $ of note.)

The petition In thla oaae distinctly avers that the defendant had "oareleasly and negligently delivered the said tires and tubes to some person other than James Hurray, the oonalgnee" and "that If defendant had exercised due oare and dlllganoe and had duly performed the duties so plaoed upon It, it oould easily have ascertained that the person to whom It aotually delivered the tires and tubes was not James Hurray, the oonalgnee". Thla la tantamount to alleging that the exerolae of the oare required by law of the defendant to Identify the oonalgnee would have led to the dlaoovery of the fraud and that the failure to exerolae that oare rendered the defendant liable for the loss that resulted from It. The question of liability is therefore one of fact as well as of law.

For the reasons above Stated we think that the petition heiv_n did state a cause of action.

It is therefore ordered that the judgment herein maintaining the exception of no cause of action be reversed and set aside, and it is now ordered that said exception be overruled and that this case be remanded for further trial according to law.

June 28th. 1918.  