
    Oskamp, Nolting & Co. v. The Southern Express Company.
    
      Common carrier of merchandise— Obligations of — Liable for delivery to wrong person.
    
    The obligation of a common carrier of merchandise is to carry to the destination and deliver to the consignee named in the address, unless prevented by the act of God or the public enemy; and delivery to a wrong person, not induced by some act or representation of the consignor, is not excused by any degree of care which the carrier may exercise.
    (Decided December 19, 1899.)
    Error to the Circuit Court of Ross County.
    Plaintiffs brought suit in the court of common pleas to recover of the express company the value of a package of diamonds in its possession as a common carrier of merchandise consigned by them to T. M. Jones at Hopkinsville, Kentucky. Numerous defenses were interposed. Upon issues joined a jury was waived and the cause was submitted to the court. Upon request the court stated its conclusions of fact separately from its conclusions of law. The facts found, so far as they are material to the questions upon which it is thought necessary to report the case, are as follows:
    The said plaintiffs on and prior to the 14th day of March, 1895, were and ever since have been, a firm, formed for the purpose of, and doing business in Cincinnati, Ohio, and that said defendant, on and prior to the 14th day of March, 1895, was, and ever since has been, a corporation organized under the laws of the state of Georgia, engaged in the business of a common carrier of goods for hire, and having an office and an agent for that purpose in the town of Hopkinsville, Kentucky. That on or about said 14th day of March, 1895, the defendant was in possession of the personal property, for the alleged conversion of which this case was brought, at said town of Hopkinsville, Kentucky. The value of said property is $562.50. On the 14th day of March, 1895, there resided in the town of Hopkinsville, Kentucky, one T. M. Jones, engaged in general mercantile and dry goods business, whose financial rating in the mercantile agencies’ reports was from $20,000 to $30,000, with the highest credit rate allowed to that class; and that said Jones had been residing at Hopkinsville, Kentucky, for some years previous to said 14th day of March, 1895. On or about the 13th day of March, 1895, said plaintiffs received an order in writing through the mail purported to be signed by T. M. Jones, of Hopkinsville, Kentucky, for the shipment to said Jones of the goods in controversy in this case on memorandum, that is to say for selection. In said purported order from T. M. Jones, the plaintiffs were referred to the mercantile agencies’ reports for the commercial standing of said Jones. Upon receipt of said order, the plaintiffs consulted said agencies’ report and discovered the rating of said Jones to be as above found. Oskamp, Nolting & Company thereupon filled said memorandum order, by shipping the goods in controversy in a package directed to T. M. Jones, Hopkinsville, Kentucky, delivering same to the Adams Express Company at Cincinnati. Said goods were shipped by the plaintiffs to T. M. Jones, whom they believed to have ordered them, and relying upon mercantile agencies’ reports of the financial condition of said Jones. T. M. Jones had not ordered the said goods, but said order had been written and mailed by one, Abe Rothschild, who had been in Hopkinsville but two or three days prior to mailing the said order. One, Tibbs, the agent for the Southern Express Company, at Hopkinsville, delivered said goods to said Rothschild, upon the representation of said Rothschild that he was the T. M. Jones for whom the goods were intended; that said Rothschild was not identified as said T. M. Jones by any person other than himself, but that he showed to said agent a list of parties among whom was Oskamp, Nolting & Company, from whom he expected goods; also in the presence of said agent of said company opened a package addréssed to him from parties other than the plaintiffs, contents of which agreed with the list of same which he had in his possession. Tibbs was informed by said pretended T. M. Jones that he had rented a store in Hopkinsville for the purpose of establishing a jewelry store, said pretended Jones exhibited to him keys which he claimed fitted the door of said store; further that said pretended Jones at no time exhibited to said Tibbs any letter, order or paper signed by Oskamp, Nolting & Company for the delivery of said goods to said person. Tibbs well knew of the existence of the real T. M. Jones; that said package was never offered to him for acceptance, and that said Tibbs did not in any way communicate with Oskamp, Nolting & Company to ascertain for whom the package was intended. T. M. Jones, the dry goods merchant doing business in said town of Hopkinsville, Ky., as aforesaid, had not, at any time, ordered or requested of said plaintiffs to ship him by express or otherwise, to Hopkinsville, Kentucky, any jewelry or other property, nor had he ever, at any time prior or subsequent to said fourteenth day of March, 1895, had any business transaction or dealing with said plaintiffs; nor did said plaintiffs ever have any personal acquaintance with him, or with said person who assumed the name of T. M. Jones and who pretended to be a jeweler.
    As conclusions of law from the foregoing facts the court of common pleas found; first, that there was no negligence on the part of the express company; second, that said company was nevertheless liable to the plaintiffs for the .value of the merchandise and it rendered judgment accordingly. The express company filed a petition in error in the circuit court, where the judgment of the common pleas was reversed. The consignors filed a petition in error here for the reversal of the judgment of the circuit court, and we- are to determine the single question whether the judgment of the court of common pleas was appropriate to the facts which it found.
    
      J. H. Cabell, for plaintiff in error.
    The decisive question in this case is, in whom was the right of possession to the goods in question at the time of their delivery by the agent of the express company to the swindler; for, (a.) if the right of possession was in the swindler, there was no conversion by the carrier; (&.) if the right of possession was in any other than the swindler, the express company Avas guilty of conversion. The rule of property in such cases may be briefly stated as follows:
    If the false pretenses by which the goods are obtained are of such character as not to affect the question with what person the owner of the goods is dealing, a voidable contract is created and the property in the goods passes out of the owner to the person who obtained them, until the owner avoids the contract, but if the owner is deceived as to the person with Avhom he is dealing, and' supposes he is some one else —where the person who obtains the goods passes himself as another or as the agent of another for whom he professes to buy, in that case no property or right of possession passes out of the owner.
    
      By far the most instructive case upon the latter branch of this rule, which is the branch applicable court in Hamet v. Letcher, 37 Ohio St., 356.
    We take it that under this decision (Harriet v. Letch-er) had the swindler, Rothschild, disposed of the goods delivered to him by the express company to some person knoAvn to Oskamp, Nolting & Company, that firm could have replevied the goods or have recovered damages for their conversion, however ignorant the purchaser might have been of the fraud practiced by Rothschild. It might be urged, however: First, that notwithstanding these authorities as to inability of fraudulent.vendee to pass any property in the goods the case of fraud does not affect the relation of the common carrier and the consignee in that the common carrier is the agent of the consignee from the moment of shipment; or, secondly, the consignee Avould in any case receive right of possession upon the delivery of the goods to° him. Following this line of argument it is necessary for us to determine who is the consignee, and, (1) How may we determine the consignee; upon his own representations, or as indicated by the consignor? No one can constitute himself a consignee in a case of ordinary shipment. The common carrier may be responsible to the consignee as his agent, but it must of necessity, be at the instance and by the appointment of the consignor. The common carrier in this case, and ordinarily, has no dealings with, or knowledge of the consignee except through and as indicated by the consignor. (2) Having arrived at the conclusion, therefore, that the consignee in this case must be the one indicated or intended by the consignor (Oskamp, Nolting & Co.), the remaining question is, whom did Oskamp, Nolting & Co. indicate or intend to be the consignee?
    (a.) As to whom Oskamp, Nolting & Co. indicated there can be no donbt. The address read, T. M. Jones, Hopkinsville, Ky. This assuredly indicated T. M. Jones, the merchant and him alone, he being the only T. M. Jones in the town. It could not indicate Rothschild any more than Brown or Smith, as neither his nor their names were T. M. Jones.
    Had there been other or others of the name in Hopkinsville, the whole question of who was the consignee, would depend upon the question whom the consignor intended him to be, but in view of the facts found in this case, it must be conceded that whatsoever the intention of the consignor, at least the goods were not delivered to the consignee of his indication.
    (b.) 'As to whom Oskamp, Nolting & Co. intended should receive the goods, there are some grounds for argument, although there can be little doubt he intended as he indicated, T. M. Jones, the merchant.
    Those cases which hold the carrier to be an insurer and therefore -responsible for wrongful delivery whether negligent or not, proceed upon the theory that frauds of this character are among the perils insured against. They say in effect, if merchants, upon receipt of orders by mail, must learn the identity of the sender with the person whose name appears upon the letter at their peril, that would necessitate the sending of an agent as the only safe means to be employed in a majority of cases. Small orders would become things of the past, and the mercantile world would of necessity revert to the business methods of the middle ages.
    They say to the carrier: You base your existence upon the acceptance of offers held out by you to the world, to enable persons at a distance from one another to transact business. You receive remuneration for your service and you must protect your customer against the frauds which are made possible only through your employment. Railway v. O’Donnell, 49 Ohio St., 489; American Express Co. v. Fletcher et al., 25 Ind., 492; Sword et al. v. Young et al., 14 S. W. Rep. (Tenn.) 481; Pacific Express Company v. Shearer, 43 Cent., L. J., 35; Seinsheimer v. N. Y. Cent. & H. R. Ry. Co., 46 N. Y. Sup., 887; McEntee v. Steamboat Co., 45 N. Y., 34; The Gulf Ry. Co. v. Fowler, (Texas) 34, S. W. Rep., 661.
    Such a delivery as was made in the case at bar has long ago been decided to be gross negligence per se. Duff v. Budd, 3 Brod & Bing., 177; Guillaume v. Packet Company, 42 N. Y., 212.
    But the latest authority upon the question will be found in two cases decided by the court of civil appeals of Texas, and reported in 42 S. W., 795 and 1017. Pacific Express Co. v. Hertzberg, 42 S. W., 795; Pacific Express Co. v. Critzer, 42 S. W., 1017.
    
      A. B. Cole for defendant in error.
    We do not agree with counsel on the other side that “the decisive question in this case is, in whom was the right of possession to the goods at the timé of their delivery by the agent of the express company to the swindler?” Nor do we understand that the case of Hamet v. Letcher, 37 Ohio St., 356, or the case of Cundy v. Lindsay, 3 Ap. Ca., 459, which counsel quotes from so liberally, is in point in this case — the facts in these two cases differ materially from case at bar.
    We submit that the decisive question in this case is not in whom was the right of possession to the goods. But the real question is, was the agent of the Southern Express Company guilty of negligence in delivering the goods to the T. M. Jones who ordered them from said Oskamp, Nolting & Co., and upon which order said goods were shipped, addressed to T. M. Jones, Hopkinsville, Kentucky.
    Why did not Oskamp, Nolting & Co. wire the real T. M. Jones at Hopkinsville, Kentucky, and learn of him if he had ordered nearly $600 worth of diamonds or jewelry, before they shipped the goocjis, addressed to T. M. Jones, Hopkinsville, Kentucky? Had they taken this reasonable precaution, they would have discovered the imposition and avoided all loss and saved much annoyance to themselves and the express company.
    It will be borne in mind that Oskamp, Nolting & Co. shipped the goods on the order, addressed to “T. M. Jones, Hopkinsville, Kentucky,” and not to T. M. Jones, General Merchandise and Dry Goods Merchant, Hopkinsville, Kentucky, as in the mercantile agencies7 report, which had been consulted.
    The diamonds were shipped by plaintiffs in error as common freight, in a package that was calculated to induce the belief that it was of little value; and in this instance, did induce the agent to so believe. Samuel v. Cheney, 135 Mass., 281.
    Can it be the law of Ohio, that consignors or shippers being careless in their manner of shipping, and thereby lead the carrier into a snare, and causing him to deliver the goods to some one other than the party the consignor may have presumed he was consigning the goods to (although the goods are delivered by the agent of the carrier, to the party who has ordered them, and to whom — as in this instance — they were directed) and yet, the shipper or consignor recover of the common carrier, as for conversion, when the carrier is not guilty of fault or negligence? We certainly think such a conclusion too monstrous for rational belief and will appear unreasonable to a thinking and reflective mind. 2 Kent Com., p. 802, sec. 602.
    
      What could have been the object of Oskamp, Nolting & Co. in shipping the diamonds as the cheapest and most common freight, unless it was to prevent collection of proper, reasonable freight charges, and thereby perpetrate a fraud upon the carrier, and mislead as to the character and value of the goods shipped? Hutchinson on Carriers, p. 163, sec. 213, 214; Oppenheimer v. Express Company, 69 Ill., 62; Chicago R. R. v. Shea, 66 Ill. R., 471; Dispatch Line v. Glenny, 41 Ohio St., 176.
    We insist that the property was delivered to the consignee and party to whom it was addressed and to the person who ordered them, and delivered to the party entitled to receive them. McKean v. McIvor, L. R., 6 Ex., 36; 9 American State Reports, 514; note to Wegend v. Atchinson Ry. Co.; Ry. Co. v. Luce & Co., 11 C. C. R., 543, 6 C. D., 145.
    We submit that the case of Samuel v Cheney, 135 Mass. R., 278, and Edmunds, etc., v. Merchants’ Dispatch Transportation Company, 135 Mass. R., 283, as well as the case of the Railway Co. v. Luce & Co., 11 O. C. C. R., 543, 6 C. D., 145, are much more directly in point than any of the cases cited by counsel on the other side, and are more in harmony with sound reason and the business progress of the age.
    We would respectfully call the attention of the court, in this connection, to the circumstance, that in the case of the Pacific Express Company v. Shearer, 52 Am. St. Rep., 334, so much relied upon by opposite counsel, that opinion is by a divided court, and we submit, that the dissenting opinion by Judge Philips is the sounder law and more in harmony with enlightened judicial wisdom and the progress of the times. Edmunds, etc., v. M. S. D. T. Co., 135 Mass. R., 283; Dunbar v. B. D. R. R. Co., 110 Mass. R., 26; Vol. 14, O. C. C., 176; 7 C. D., 417; Thomas on Negligence, 1224, and note.
    We further contend that the legal principle, “When one of two innocent persons must suffer by the fraud of a third, he who first trusted such third person, and placed in his hands the means which enabled him to commit the wrong must suffer,” is applicable to the case at bar, and that the consignors placed it in the power of the pretended T. M. Jones to commit the wrong, and as between them and the express company, they should suffer the loss. Dean v. Yates et al., 22 Ohio St., 396; Hamet v. Letcher, 37 Ohio St., 359.
   Shauck, J.

In the view which Ave take of the case it does not seem necessary to consider when the title to goods passes from the consignor to the consignee, whether under the general law of sales or under the particular terms of the order which was received by the plaintiffs in this case. Nor would it be helpful to analyze the apparently conflicting decisions in Avhich cases bearing more or less resemblance to this have been resolved according to the law of negligence.

It is admitted that the carrier received from the plaintiffs merchandise which they had consigned to T. M. Jones at Hopkinsville, Kentucky, and that, instead of making delivery to him, the carrier deliverd it to one Abe Rothschild. Was this the performance of-its contract? The bill of lading upon which, as is admitted, the carriage was undertaken is in the record. In none of its terms having any relation to the delivery of the consignment is there any attempt to vary the duty of the carrier as it is defined by law, unless it be in the following stipulation: “It is further agreed that said company shall not in any event be liable for any loss, damage or detention caused by the acts of God, civil or military authority or by rebellion, piracy, insurrection or riot, or the dangers incident to a time of war or by any riotous or armed assemblage.” The duty which the law imposed upon the carrier was to transport the goods to Hopkinsville, and deliver them to the consignee named, unless prevented by the act of God or the public enemy. We need not consider whether the stipulation quoted is valid, nor whether it is more than an amplified statement of the legal exemption from liability, since no fact which would bring the case within the exemption of either the law or the stipulation is alleged or proved. This high obligation is imposed upon the carrier from considerations arising out of the fact that he has unqualified dominion of the goods for the purpose of carriage and delivery, and from the general course of business among consignors and consignees. The cases are numerous in which the carrier’s liability has been held to be upon contract, and that delivery to the wrong person is a conversion unless such wrong delivery is induced by the consignor. Many of the cases are collected by Mr. Hutchinson in his work on Carriers, sections 340 to 350, and notes.

The facts found by the trial court as to the order upon which the diamonds were forwarded by the plaintiffs, and the schemes by which Rothschild persuaded the carrier’s agent that he was the consignee, should not divert attention from the manifest breach of its undertaking. Rothschild’s imposition upon the plaintiffs did not induce them to consign the diamonds to him. It in no way affected their order to make delivery to T. M. Jones. The forged order upon which the consignment was made to Jones was a nullity. It established no contractual relations between the consignors and Jones. But if the plaintiffs had consigned the diamonds to Jones without having received any order whatever therefor, would it be supposed that the carrier could fill the measure of its obligation by delivering them to Rothschild? Rothschild did not gain possession of the diamonds by the misrepresentation which induced the plaintiffs to consign, them to Jones. The misrepresentation effective for that purpose was made to the carrier when he persuaded its agent that he was the consignee.

Judgment of the circuit reversed and that of the common pleas affirmed.  