
    Southern Express Company v. Ruth & Son.
    
      Damage for Wrongful Delivery of Goods.
    
    (Decided May 28, 1912.
    59 South. 538.)
    1. Carriers; Freight; Wrongful Delivery; Liability. — Where the agent of an express company was without knowledge as to the order, and delivered the package to a person other than the consignee without requiring proof that the person to whom the delivery was made was connected with the consignee, except letters produced by such person addressed to the consignee, the express company was liable to the consignor for a wrongful delivery, notwithstanding the person receiving the package was the one who had actually ordered its contents from the consignor.
    2. Same; Limiting Liability; Presentation of Claim. — Under the provisions of section 4297, Code 1907, a clause in the contract of shipment requiring claims to be presented within 90 days is no defense to an action against an express company for a wrongful delivery of the goods.
    3. Same; Presentation; Time. — The beginning of an action against the express company within the time specified by the contract of affreightment for the presentment of a claim for damages, is a sufficient presentation of such claim.
    4. Same; Charge of Court; Conformity to Evidence. — Where the action was for a wrongful delivery, and the person receiving the package, though not the consignee named, had actually ordered the contents of the package from the shipper, and it was not shown that this was known to the agent of the company making the delivery, a charge asserting that the express company’s agent had the right to assume that the shipment was made upon a bona fide order, and if he delivered the package of the party who made the order, the shipper could not recover for the wrongful delivery, was properly denied.
    Questions certified from Court of Appeals.
    The statement of the Court of Appeals certifying the questions presented is as follows:
    In the above entitled case, the judges of the court being unable to reach a unanimous conclusion or decision, the undersigned judges of said court, pursuant to the provision of the statute in such cases made and provided, hereby certify to the Supreme Court of Alabama the following questions of law as to which the undersigned judges differ:
    A suit was brought in the trial court by the shippers, C. L. Euth & Son, against a common carrier, the Southern Express Company, for the conversion of a diamond ring of the value of $165.00.
    The undisputed proof showed the ring to be worth $165.00 and to be the property of the shippers, a firm engaged in the jewelry business at Montgomery, Alabama, and that it was delivered by the shippers to the express company at Montgomery, Alabama, addressed to W. H. Barber & Co., Samson, Ala.; the value, $165.00, being marked on the outside of the package by the shippers. It was also shown by the evidence without conflict that the package was carried by the express company to Samson, Alabama, and there delivered by its agent to the party who had ordered the ring; but this person' turned out to'be a swindler, who had assumed and used the name of W. H. Barber & Co.
    The circumstances attending the transaction are shown by the evidence as set out in the bill of exceptions to be as follows:. A- person, who turned out to be an impostor, addressed a letter to C. L. Ruth & Son, ordering a diamond ring to be sent on approval. The letter was written from Samson, Ala., and stated, “We desire to purchase a diamond ring,” etc., and was written on printed stationery purporting to be a printed letter head of W. H. Barber & Co., setting out their business (manufacturers of naval stores), and the date line shoAving “Samson, Ala.,” while the real place of business of this company is at Brewton, Ala., was also shoAvn on the printed letter head, indicating that the company had a place of business at Samson, Ala., as well as at Brewton, Ala. The letter was signed “W. H. Barber & Co., by J. T. B.” and referred to the rating of the company at Brewton, Ala., to be found in the commercial agencies. W. H. Barber & Co. was a reputable business concern having a good rating in the commercial agencies, and doing business at Brewton, Ala., but had no connection with any company by that name at Samson, and had no representative or office or place of business there, and no company by that name had an office or knoAvn place of business at that point.
    C. L. Ruth & Son, the shippers, to whom this letter was addressed, after making inquiry of the reliability of W. H. Barber & Co., of Brewton, Ala., and being satisfied of the responsibility of that firm, but making no inquiry as to their having a place of business or representative at Samson, Ala., shipped the ring by express to Samson, Ala., in a package addressed to “W. H. Barber & Co., Samson, Ala.” No special instructions were given by the shippers to the express company or any of its agents, nor was anything said or done to put the express company on notice that it was other than an ordinary open shipment. The package having been transported by the express company to Samson, Ala., the imposter who had ordered it called on the express company’s agent for the package and it was delivered by the agent to this person after he had satisfied the agent of his identity and that he was the proper person to receive the package, by showing a package of letters or envelopes addressed to W. H. Barber & Co., at Samson, Ala., duly postmarked, etc. The evidence o|f the agent who delivered the package as set out in the bill of exceptions is as follows:
    “That he was Agent of the Southern Express Company at Samson, Alabama; that this party came and had some express, the package mentioned, and asked for it, and witness asked him to identify himself; that he said he had nobody there that knew him; that he was just a stranger there; that he was just from Brewton, and that he had letters in his possession and took out a batch of about 8 or 10 letters and showed the witness the envelopes addressed to W. H. Barber & Co.; that there was no other firm at Samson at the time purporting to do business as W. H. Barber & Company; that he receipted for the package by signing W. EL. Barber & Co., by J. T. Barber; that the shipment was forwarded from Montgomery on April 1st, and delivered in Samson April 3rd, 1911.
    “Upon cross-examination the witness upon being asked what identification he demanded of the man who presented himself for the package, testified that he demanded that the party identify himself, showing that he was the right party. Upon being asked what he did do, the witness testified that he showed the witness the letters, he having a batch of envelopes addressed to W. H. Barber & Co., postmarked Samson. . Upon being asked if he knew at the time he turned the package over to the party that W. H. Barber & Co., did not do business at Samson, the witness replied that he knew there' was not any firm, prior to that time; that the party' claimed to represent W. H. Barber & Co., at Samson, Alabama; that he had no written order signed W. H. Barber & Co., to deliver the package to the party. Upon being asked if he delivered the package to the party when he was shown the envelopes addressed to W. H. Barber & Co., the witness testified ‘No.’ That he asked the party some questions, if there was any other way he could identify himself, and the party said there was no other way he could identify himself, if witness was not satisfied that he Avas the right party. Witness Avas then asked if, as soon as the party shoAved- Avitness the letters addressed to W. H. Barber & Co., witness turned the package over to him, to Avhich the witness replied, that after witness questioned him the party said that was the only way he had to identify himself, that he could refer to the hotel man; that witness turned the diamond over to the party upon identification of letters postmarked Samson; that witness did' not have any order in writing from W. H. Barber & Co., to turn the package over to J. T. Barber.
    “Upon re-direct examination the witness testified that the letters were addressed to W. H. Barber & Co., Samson, Alabama.”
    W. H. Barber & Co., of Brewton, Ala., were shown to have had nothing whatever to do with the transaction and to have had no connection with the impostor who assumed and used the name of the company. None of the members of the company of W. H. Barber & Co-., of Brewton, Ala., were personally known to or by any of the members of the firm of C. L. Buth & Son, of Montgomery, Ala. The ring was shown to have been lost to the shippers. All evidence having a tendency to show any negligence on the part of the defendant or its agents is herein set out. There Avas no testimony going to show that the defendant or its agents had notice of the deceit or fraud being practiced by the impostor.
    First. Under the facts and circumstances of this case as we have above set them out, is the defendant carrier liable to the plaintiff shippers in this action?
    Or, stating the proposition as it arose upon the trial, second, was the defendant entitled to the general affirmative charge in its behalf, requested by it in writing.
    Third. If it is the conclusion of the Supreme Court that the defendant was not entitled to the general charge, was the trial court in error in refusing to give at the request of the defendant the following charge requested by it in writing, to wit: “The court charges the jury that if they believe from the evidence that the defendant had a right to assume the shipment was made on a bona ficle order and delivered the goods to the party who made the order, plaintiff cannot recover.”
    The above questions are. submitted as abstract propositions, as directed by the stattue, reference being made to the case in which the questions arise, for the convenience of the Supreme Court.
    George W. Jones, and S. L. Fields for appellant.
    The demurrers to the pleas were too general. — Ryall v. Allen, 143 Ala. 222; Moore v. Eeineke, 119 Ala. 627. Where the demurrer does not specify the objection it should be overruled, although the pleading is not good. —Turk v. State, 140 Ala. 110; Wilke v. Johnson, 132 Ala. 268. The clause in the contract requiring presentation of claims for damages is valid. — Broadwood v. So. Eos. Go., 148 Ala. 17; 13 L. R. A. (N. S.) 753. 'Counsel insist that the provisions of sec. 5546 is violative of the 14th amendment, and of sec 6 of the Constitution of Alabama. — Mobile v. Dargan, 43 Ala. 410; 
      Mobile v. B. B. Go., 45 Ala. 322; 166 U. S. 266. The court erred in not admitting the letters written by plaintiff and addressed to W. H. Barber & Co-., subsequent to the delivery of the shipment. — 3 Wig. secs. 2104 and 2120; Mutual L. I. Go. v. Scott, 54 South. 182. There was a' variance between the allegations and the proof, and the court erred in not excluding the proof on motion. — M. J. é K. G. v. L. Go., 48 South. 377. The court should have given the general charge, as requested by defendant, because of the variance, and because a demand and refusal was not shown. — L. & N. v. Kaufman, 37 South. Also because a delivery to the carrier amounts to a delivery to the consignee and divests the shipper of title to the goods. — Hickey v. McDonald, 151 Ala. 497; Pilgren v. State, 71 Ala. 368. After such a delivery the shipper has no right except the right of stoppage in transitu. — 52 Ala. 752; 103 Ala. 671; 6 Cyc. 473; 110 Mass. 26; 156 Fed. 987; 27 Mo. App. 360; 15 Pa. Sup. Ct. 435. Special attention is called in this connection to the case of W. Ú. T. Go. v. Myer, 61 Ala. 158.
    Walton H. Hill, for appellee.
    The plea was demurrable as violative of sec 5546, Code 1907, and also because the action was trover, and the plea attempted to set up a stipulation contained in an alleged contract.— L. & N. v. Prioe, 159 Ala. 213. The filing of the complaint was a sufficient filing of the claim to be presented, as it was filed within the time required for the filing of such claim for damages. — Floyd v. Glayton, 67 Ala. 265; Jones v. Lightfoot, 10 Ala. 17. The carrier was bound to deliver to the particular firm or corporation to which the shipment was made.- — Ex. Go. v. Shearer, 37 L. R. A. 177; Hutchinson on Carriers, sec. 344; Am. Ex. Go. v. Fletcher, 25 Ind. 493; see also Am. Rep. 107; 10 Am. Rep. 475; 67 111. 348.
   SIMPSON, J.

— -The facts of the case, and the matter referred to this court, are distinctly stated in the certificate of the Court of Appeals.

The law in regard to the responsibility of the carrier to deliver goods, entrusted to it, to the person to whom they are addressed, is very stringent, and necessarily follows from the nature of the business of a common carrier. “No circumstance of fraud, imposition or mistake will excuse the common carrier from the responsibility for a delivery to the Avrong person. The laAV exacts from 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 mistake in this respect, no matter from Avhat 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 to whom the goods were not directed or consigned. If therefore the person who applies for the goods is not knoAvn to the carrier, and he has any doubt as to his being the consignee, he should require the most unquestionable proof of his identity.” — 2 Hutchinson on Carriers (3d Ed.), sec. 668, pp. 739-40.

The cases are numerous, in which an imposter addressed orders to the consignor, falsely representing himself to be some firm in existence, or some fictitious firm, and in accordance with the order the goods were shipped to said real or supposed firm, and the courts have held, in accordance with the fundamental principles of law of carriers, that the carrier was liable for not ascertaining the proper party to Avhom the goods were addressed and delivering them accordingly, or, if the party could not be found, holding the goods subject to the order of the shipper. — 2 Hutchinson on Carriers (3rd ed), Secs. 669-672, and notes; Pacific Express Co. v. Shearer, (160 Ill., 215), 37 L. R. A., 177, 184, and notes.

In the case of American Express Co. v. Fletcher et al. (25 Ind., 492), although the agent of the Express Company Avas also the agent of the Telegraph Company, and the' goods were sent in response to* a telegram sent through his office by the imposter, the carrier was held responsible for delivering the goods to said imposter, the court saying “that the package had been sent in response to a telegram purporting to be from J. O. E., simply proved that said E. had credit, . . . . not that the person who sent the dispatch or that any man pretending to be him was to receive it.” (p. 494).

So where a person assuming the name of another, telegraphed, in the name of such other — V. M. — to a bank to send him $500.00 and the amount was sent by express, addressed to said V. M., and although the hotel keeper appeared with the imposter and stated that “he (V. M.) is here now,” the company was held liable, the court saying: “It is the settled doctrine of England and of this country that there must be an actual delivery to the proper person at his residence or place of business, to his number, or to the party in whose care addressed, and in no other way can the carrier discharge his responsibility, except by proving that he has performed such engagement or has been excused from the performance of it, or prevented by the act of God or a public enemy.” — Southern Express Co. v. Van Meter, (17 Fla., 783), 35 Am. Rep., 107, 109-10.

It is true that there are cases where the margin betAveen liability and non-liability, is so closely drawn that it is difficult to draw the distinction, and it must be acknowledged also that there are some cases in conflict with the great weight of authority. In the case of Samuel v. Cheney (135 Mass., 278), 46 Am. Rep., 467, there were two persons in the town, each having a place of business under the name of ‘A. Swannick/ although it seems to be admitted that one of them was a swindler, yet one of them (the swindler) designated himself by giving his post-office box as 1595. This was the person with whom the seller corresponded and to whom 'the goods were addressed. In other words, the goods were delivered, in accordance with the address, to the person to whom they were sold, though the seller supposed he was the responsible man.

In the case of Edmunds v. Merchants’ Transportation Co., 135 Mass., 283, two cases were tried together. In the first,. A. represented himself to be P., a reputable merchant of. D., and bought the goods personally, and the court said that as the seller intended to sell to the person who was present before him and did sell to him, so that the title to the goods passed to the person before him, though he thought him to be another, the carrier was held not liable for delivering to him.

In the other case “the contract did not purport, nor the plaintiffs intend, to sell to the person who was present and ordered the goods. The swindler introduced himself as a'brother of Edward Pape, of D., buying for him,” so that “the relation of vendor and vendee never existed between the plaintiffs and the swindler. The property in the goods, therefore, did not pass to the swindler; and the defendant cannot defend, as in the other cases, upon the ground that it has delivered the goods to the real owner” (pp. 284-5).

In the case of Dunbar v. Boston &c R. Co., (110 Mass., 26), 14 Am. Rep., 576 (which we do not mean to approve,) the goods were bought by the swindler (Gr), in person, giving a fictitious name (Y). There was no such person as Y, and the carrier was held not liable as the goods reached the person to whom they were sold.

Mr. Hutchinson draws the distinction between these and other cases, shows that the Cheney Case “has been qualified even by those courts which recognize that case as enunciating a correct principle of law,” then cites the Shearer Case (supra) with approval (Secs. 672-3), and after recognizing the undenied principle that the owner shipping the goods may be responsible where he misleads the carrier, winds up the discussion thus:

“It will thus be seen that no possible circumstances of fraud, imposition or mistake, causing the delivery to the wrong person, which have not been induced by the conduct of the owner of the goods, or in which he jhas not participated, will, at least according to the American cases upon the subject, excuse the carrier from liability for the value of the goods if they are thereby lost, and that when the owner of the goods has been made the dupe of an artifice which has induced him to pursue a course in reference to them which has led to the delivery by the carrier to an improper person who was not really entitled to them, the carrier will nevertheless be responsible for the loss thereby occasioned, where he has been guilty of negligence, but in some jurisdictions not where, in good faith, he has delivered to the person to whom the owner actually directed the good, although the owner may have been misled.” (Sec. 679, p. 758.)

Judge Elliott, after noting the various cases, mentions the only exceptions to the absolute liability of the carrier for a wrong delivery, as “if the misdelivery is caused by misdirection or other negligence on the part of the shipper, or if fraud is perpetrated on him by a third person in such a manner that he really parts with the title to the goods to such third person, the carrier, rightfully acting on the faith of appearances which the owner himself has created, and in accordance with his directions, and without negligence, ought not to be held liable to him for delivering the goods to such third person, although the owner was imposed on by him.” — 4 Elliott on Railroads (2nd ed.), Sec. 1526 a, pp.257-8.)

The case of Western Union Telegraph Company v. Meyer, 61 Ala. 159, decided by a divided court, with no argument in favor of the majority, is básed upon the facts that a swindler, personating another, telegraphed for money and the money came by telegraphic order through the offices of the defendant, in response to his telegram. The majority of the court thought there was “nothing to create suspicion in the minds of the company’s agents.”

It is unnecessary to decide whether the case in our own court, just cited, is sound law or not, as the case now before the court does not come within any of the exceptions which are held to relieve the carrier. The ring was simply delivered to the carrier addressed, not to J. T. Barber but to “W. H. Barber & Co.” There is no evidence that the plaintiffs did or said anything to lead the carrier to believe that the ring Avas to be delivered to anyone other than W. H. Barber & Co. There is no evidence that the carrier even knew that the man in Samson had written for the ring at all; nor was the order sent through defendant and the response by the same channel, as in the Meyer Case. In short it was simply an ordinary shipment to W. H. Barber & Co., without any particular facts or circumstances about it, brought to the attention of the agent of the carrier, who knew that, up to that time there had been no firm of that name in Samson; and although the man told him that he was a stranger, just arrived there, and had no way to identify himself except by exhibiting the outside of eight or ten letters, or the envelopes, addressed toW. H. Barber & Co., at Samson, Alabama, postmarked, Brewton, Alabama, and although the man suggested to him to inquire of the hotel keeper, he made no further inquiries, and delivered the goods to the imposter.

The facts being without conflict, the defendant was not entitled to the general charge, nor was the defendant entitled to the other charge requested, to-wit: “The court charges the jury that if they believe from the evidence that the defendant had the right to assume the shipment was made on a bona fide order, and delivered the goods to the party who made the order, plaintiff cannnot recover.”

This charge, while being otherwise faulty, according to the principles of law stated/ was abstract and misleading, as there was no evidence tending to show that any facts were presented to the agent, from which he would have a “right to assume that the shipment was made on a bona fide order” nor that the goods were delivered “to the party who made the order.”

All the Justices concur, except Dowdell, C. J., not sitting.  