Southeastern Express Co. v. Kimball
| Decision Date | 27 October 1924 |
| Docket Number | 24343 |
| Citation | 136 Miss. 420,101 So. 563 |
| Court | Mississippi Supreme Court |
| Parties | SOUTHEASTERN EXPRESS CO. v. KIMBALL. [*] |
CARRIERS. Delivery of goods held to exonerate carrier from liability if delivered to right person, though receipted for under trade-name other than that used in addressing goods.
Where goods are shipped by a trader through an express company to a person doing business under a trade-name, and the goods are actually delivered at the address to which it is consigned to the person doing the business under the trade-name, it is a good delivery even though the receipt is signed in another trade-name. It' the person who orders the goods receives them from the carrier, the delivery is good, and the carrier is not liable to the shipper for a misdelivery.
APPEAL from circuit court of Chickasaw county, HON. T. E. PEGRAM Judge.
Action by G. R. Kimball against the Southeastern Express Company. From a judgment for plaintiff, defendant appeals. Reversed and judgment rendered.
Judgment reversed.
C. M. Wright and Bozeman & Cameron, for appellant.
In this conception of the law, the judge was manifestly in error. The only duty of the Express Company was to deliver these shipments to the man to whom they had been sold. It matters not if he adopted some fictitious name, or what name he received them under, if it be a fact that the man who ordered the shipments actually received them, the Express Company performed its full duty.
The court below evidently recognized that there was no dispute on this proposition. The court seemed to take it for granted that it was without dispute that Seymour ordered the shipments and received the shipments, but fell into the error of assuming that the Express Company was liable, if the evidence did not show that Mr. Kimball knew that Mr. Seymour traded under both the names set forth in this record. As to this, we submit that there was no dispute. A reading of the communications which admittedly passed between the parties, shows indisputably that Mr. Kimball did have notice of that fact.
We submit that if the Express Company delivered the shipments to the man who ordered them, there was no liability and the court should have granted a peremptory instruction. Abasi Bros. v. Louisville & Nashville R. R. Co., 115 Miss. 803, 76 So. 665; Hentz v. Steamship Idaho, 93 U.S. 975, 23 L.Ed. 978; Dunbar v. Boston & Providence R. R. Corp., 110 Mass. 26, 14 Am. Rep. 576.
Along the same line is the case of Fulton Bag & Cotton Mills v. Hudson Nav. Co., 157 F. 987; Lakeshore & M. S. R. R. Co., v. Luce, 11 Ohio C. C. 543; Price v. Oswego & S. R. R. Co., 58 Barb. 599; Wilson v. Adams Express Co., 27 Mo.App. 360; Seibert v. Philadelphia & R. Ry. Co., 15 Pa. S.Ct. 435.
Certainly, it was the shipper's action in the present case, in dealing with Seymour, which caused the delivery to him. Undisputedly the Vardaman Company had done its dealings entirely with Mr. Seymour, and he produced the original correspondence, and also the original invoices. There was certainly no liability on the Express Company in the present case. 4 Elliot on Railroads (3 Ed.), sec. 2296, and authorities cited therein; Pacific Exp. Co. v. Hertzberg, 42 S.W. 795, 17 Tex. Civ. App. 100; So. Express Co. v. Oskamp, 14 O. Cir. Ct. R. 176, 7 O. C. D. 417; Samuel v. Cheney, 135 Mass. 278, 46 Am. 467; Bush v. St. Louis, K. C. & N. R. R. Co., 3 Mo.App. 62; So. Express Co. v. Fank, 78 S.E. 197, 12 Ga.App. 447, 10 C. J. 265 et seq.; So Express Co. v. Williams, 99 Ga. 482, 27 S.E. 473; McKean v. McIvor, L. R., 6 Exch. 36; R. R. Co. v. Lowe, 101 Ga. 320, 28 S.E. 876; Stevison v. Jackson, 58 N.H. 138; Viner v. New York, etc., Co., 50 N.Y. 23; R. R. Co. v. McFadden, 89 Tex. 138, 33 S.W. 853; Wells v. Express Co., 44 Wis. 342.
From the foregoing authorities, the true rule is shown to be that the only duty of the Express Company was to deliver the shipment to the man who ordered it and who had the dealings with the shipper. It is manifest that it was of no moment whether Mr. Kimball knew that he was dealing with Seymour or not. The liability of the Express Company could be in no way affected by this.
B. N. Knox, for appellee.
The only questions involved in this lawsuit as I see it are: Were the two concerns the same, and, if so, did Kimball have knowledge of that fact, or were the circumstances sufficient to put him on notice. If they were not the same, and Seymour states they were not, then the delivery was unauthorized and the defendant made same at its peril and is liable to plaintiff for the wrongful delivery.
If the lower court was correct in allowing the case to go to the jury on the question as above stated, then the jury returned its verdict, the verdict should not be disturbed on the facts. It is very evident that the court was correct in letting the jury pass on that controverted point, as the evidence was in sharp conflict as to whether or not they were one and the same concern, even witnesses for the defendant stating they were not, especially Seymour.
The Dunbar case quoted by appellant is not applicable the case at bar, because there was no dispute that Dunbar and Young were not the same person, and further because Dunbar was known to the delivery clerk of the carrier, and who did not represent himself to be Young, but the agent of Young.
In the case at bar, the C. O. D. receipt, signed by the Atlanta Produce and Packing Company was returned to the shipper, showing that the concern to whom it was shipped signed for it--in other shipments. Therefore, since Seymour says he never acted under that name, there must have been a concern in Atlanta doing business as the Atlanta Produce and Packing Company, other than the man Seymour, according to his sworn testimony. This was the litigated point and was decided in favor of appellee. For the reason that the facts, as interpreted by the jury, bore out the contention that they were not one and the same, the authorities submitted by appellant are not applicable. They are citing authorities supporting a proposition of law that is not supported by the facts in the case at bar.
The rule in cases based on facts similar to the case at bar is well settled. The duty of the carrier is not merely to convey safely the goods intrusted to it, but also to deliver them to the party designated by the terms of the shipment, or to his order, at the place of destination. So. R. R. Co. v. Webb, 39 So. 262, 111 Am. St. Rep. 45. This duty to deliver to the proper person is absolute. Chicago v. Railway Company, 22 L. R. A. (N. S.) 1107. No obligation of the carrier is more rigidly enforced than that which requires delivery to the consignee. Furman v. Union Pacific, 13 N.E. 587. No question of care arises for in such cases the carrier acts at its peril and is liable regardless of negligence. Railroad Company v. Wright, 58 N.E. 559; Schlicting v. Railroad Company, 96 N.W. 959. It is uniformly held that where one not the consignee, by means of any fraudulent device, procures the delivery of the goods to himself, the carrier and not the consignor is the one on whom the fraud is practiced, and who must bear the loss, being liable to the consignor for conversion of the goods. Pacific Express Co. v. Shearer, 37 L. R. A. 177, 48 N.E. 816. 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 ordered. Here, also it is the duty of the carrier to warehouse the goods for the consignor. Price & Oswego v. Railroad Co., 50 N.Y. 213, 217, 220.
The appellant here also contends that there was no mis-delivery--that the goods were delivered to Seymour the party that ordered them, but under the two above decisions the company is liable, and rightly so, because Kimball was dealing with the Atlanta Produce and Packing Company and not with P. W. Seymour. The only difference between the facts in the case at bar and the foregoing case, is in the names of the parties. The fact that Seymour had possession of the invoice did not relieve the defendant company. Barkhouse case, 109 Ala. 543, 13 So. 542. See note (a) "Erroneous view" at bottom page 264, 10 C. J., in which it is held that the view expressed in the Wilson case and other cases cited by appellant was erroneous. Also see following note 76 (a).
The appellant was defendant below and the appellee was the plaintiff. The plaintiff was engaged in dealing in poultry and other produce under the trade-name of Vardaman Produce Company. He was also agent of the Southeastern Express Company at Vardaman, Miss. Through the latter months of the year 1921 the plaintiff sold certain, produce, namely, poultry and eggs, to the Atlanta Produce & Packing Company and to the National Produce & Packing Company of Atlanta, Ga. Both these trade-names did business at the same street number, and it appears that one Paul W. Seymour was the person who operated the business at that point. A good deal of correspondence and many telegrams passed between the Vardaman Produce Company and the said trade-names of Atlanta, Ga. On the 8th of December, 1921, the National Produce & Packing Company, operated by Paul W. Seymour, telegraphed to the Vardaman Produce Company at Vardaman, Miss., as follows:
NATIONAL PRODUCE & PACKING CO."
On December 10, 1921, the Vardaman Produce Company sent the following telegram:
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