
    Sword v. Young.
    
      (Knoxville.
    
    September 18, 1890.)
    1. Common Carrier. Liable to consignor for value of goods negligently delivered to fraudulent purchaser.
    
    Common carrier is liable to consignor for value of goods shipped upon a fraudulent order to a fictitious consignee, and delivered by the carrier to the person who had made the fraudulent order and obtained the bill of lading without inquiry or knowledge as to his. identity.
    Cases cited: I Lawyer’s Reports, Annotated, 650; 50 N. Y., 213 (io-Am. Rep., 475); 4 Bing., 476.
    2. Same. Same. Carrier's liability secondary.
    
    But the carrier’s liability is postponed to that of the fraudulent purchaser and his confederates, where they are jointly sued.
    PROM KNOX.
    Appeal from Chancery Court of Knox County. H. R. Gibson, Ch.
    CoopeR & Davis for Sword.
    Williams & Henderson for Young.
    J. W. Caldwell for Garland.
    W. M. BaxteR and Henderson & Jourolmon for Railroad Company.
   TURKEY, Oh. J.

On May 18, 1889, J. E. Gil-lenwaters, over the assumed and fictitious name of “ Ohaides G-. Magrauder,” wrote to Sword & Son, of Cleveland, Ohio, to send to them (representing Magrauder as a firm name) a hrick machine. The machine was shipped, and came to Knoxville on the cars of defendant, East Tennessee, Virginia, and Georgia Railroad. Shortly after its arrival Gillenwaters presented the hill of lading made in the name of “ Charles G. Magrauder,” demanded the machine, which was delivered to him, paid the freight, and receipted in the name of Charles G. Magrauder. ETo questions were asked, and he was not required to identify himself as the consignee, nor was the hill indorsed.

Defendant Garland claims to have purchased the machine from his brother-in-law, Gillenwaters. lie afterward sold it to Young & Tindall. Complainants were, of course, never paid the price for the machine, and now sue the defendants, Gillenwaters and Garland, Young & Tindall, and the railroad company.

There can be no question of the liability of Gillenwaters and Garland. "Was the conduct of the carrier such as to amount to a conversion and make it liable? It is a well-settled general rule that the carrier must deliver to the consignee at the place appointed.

Chancellor Kent declares the law to be that “a common carrier is in the nature of an insurer, and is answerable for accidents and thefts, and even for a loss' by robbery. , He is answerable for all losses which, do not fall within the excepted cases of the act of God .and public enemies. This has been the settled law of England for ages, and the rule is intended as a guard against fraud and collusion, and is founded on the same broad principles of public policy and convenience'which govern in the case of inn-keepers. This principle of extraordinary responsibility was taken from the edict of the praetor in the Roman law, and it has insinuated itself into the jurisprudence of all the civilized nations of Europe.” 2 Kent, 805, 9th Ed.

This is equally the rule in this country. It can make no difference that the defendant earner thought, because G-illenwaters had the bill of lading, that he was Charles G. Magrauder. If he was a stranger, as the proof shows him to be, it was the duty of the carrier to have required him to identify himself as the consignee or his rightfully-constituted agent. 33y its failure, Gillenwaters was enabled to practice that fraud intended to be guarded against by the rule from Kent, as well as a theft, or its equivalent — the obtaining of the goods by false pretenses.

That Gillenwaters had succeeded in deceiving the complainants by representing himself as Ma-grauder, is no excuse to the defendant for its failure to use an effort to discover his true character.

The consignment was to Charles G. Magrauder. That name was fixed on the machine, and it was a duty to deliver to him only, or, if he could not be discovered, to notify the consignor.

(October 4, 1890.)

There is no difference between this case and one in which a consignment has been made to an 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 or authority to receive.

We have no doubt of a confederacy between G-illenwaters and Gt-arland. The decree will be against them, in the first instance, for the value of the machine; then against the carrier. A majority of the Court holds that no decree can be had against Young & Tindall.

Modify the Chancellor’s decree accordingly.

OPINION ON PETITION TO REHEAR.

TuRNEY, Ch. J.

This casé was decided at a former day of the term, and is again before us on a very earnest and respectful petition to rehear.

The facts are set forth in the former opinion.

The authorities cited do not, in our opinion, when taken connectedly, support the petition. We had examined the case of Weyand § Atchison v. Railway Co., as reported in Lawyer’s Reports, Annotated, Vol. I., 650. It is to that case Mr. Eree-man has added his^ notes in 9 American Rep.

In that case the Court said: “ This case does not fall within the rule, that where one of two innocent parties must suffer, the loss must fall upon him who put it in the power of another to perpetrate the wrong,” and adds: “ The possession of the bill of lading without indorsement or' other evidence of assignment, did not vest , Evans with auy apparent right to the property. The loss re-suited from the negligence of the defendant in not insisting upon proper evidence of an assignment before it surrendered the goods.”

In Price v. Oswego and Syracuse Railroad Co., 50 N. Y., 213, and 10 Am. R., 475, it was held u where goods which have been fraudulently ordered by an individual in the name of a fictitious firm, and have been shipped in compliance with the order, directed to such firm, are delivered by the carrier to a stranger without requiring evidence of his identity, the carrier is liable to the consignee for their value,” the Court saying: In the present case the goods were consigned to S. H. Wilson & Co., Oswego.”

This plainly indicated some person, or rather persons, known by and doing business under that name. But as there was no such firm, and, so far as the findings or case show, never had been, delivery could not be made to the consignees. Then, as already seen, it became the duty of the carrier to warehouse the goods for the owner.

Instead of this, the defendant delivered them to a stranger withont making any «inquiry as to who or what he was.”

The Court cites Stephenson v. Hart, 4 Bing., 476, in which it was expressly. held that the carrier had no right to make delivery to the writer of the fictitious order,” and adds: “ But it is said that the plaintiff intended the goods should he delivered to the writer of the order. Rot at all. He did not consign them to the writer of any order, but to Wilson & Go. This is the only evidence of his intention as to the person to whom the delivery should he made. It is further said that it was the plaintiff’s negligence in forwarding the goods without ascertaining that there was in fact such a firm. I am unable to see what the defendant had to do with this. Its duty was to deliver to the firm, and, if that could not be found, to warehouse and keep for the owner.”

That case is at one with the present. It is sound in principle, and in consonance with right.

The petition is dismissed.  