Citations
- 160 Ill. 215
Full opinion text
Mr. Chief Justice Craig
delivered the opinion of the court:
. On the trial in the circuit court before the court, without a jury, the court held as law ten propositions submitted by the appellees and refused four propositions submitted by the appellant. The ruling of the court on the propositions submitted led to a judgment in favor of the appellees, the plaintiffs in the action, and that judgment was affirmed in the Appellate Court. When this case was first submitted we were inclined to reverse the judgment and remand for another trial, but upon a petition for a rehearing, on a further consideration of the case, we have reached a different conclnsion.
Appellees’ third and fourth propositions held were as follows:
3. “To relieve the defendant from legal liability in this action it is not enough that the evidence should prove that the man to whom the defendant’s agent at Chetopa delivered the package in controversy was in fact the man, and was sufficiently identified to said agent as the man, whose telegram to the plaintiff in evidence caused them to send by express, as they did, the package in question.
4. “The defendant in this case, on receiving the package in controversy addressed to J. C. Stubblefield, Chetopa, Kansas, became, as common carrier, an insurer of the safe delivery of said package to J. C. Stubblefield, Chetopa, Kansas, and nothing except the act of God or of the public enemy could discharge the defendant from the duty of so delivering it.”
Appellant’s first refused proposition was as follows: ■
“If the defendant’s agent delivered the package in controversy to the identical person in response to whose telegraphic order the plaintiff sent the same, in good faith, believing such person was J. C. Stubblefield and the person named as consignee, and if, at the time of the delivery of the package in controversy, the defendant’s agent correctly ascertained that the person who demanded it and to whom it was delivered was the identical person in response to whose order the plaintiff sent the same, and that plaintiffs had accepted the order of such person and acted npon the same as the order of J. C. Stubble-field, and if, before the delivery of the package in controversy, the defendant’s agent made reasonable efforts and exercised reasonable and ordinary care and diligence to ascertain the identity of the person who demanded the delivery and to whom the delivery was in fact made, and then made such delivery without knowledge or reason to believe that the person to whom such delivery was made was not the person to whom such package was addressed, then the plaintiffs can not recover in this action, and the finding and judgment must be for the defendant.”
It is apparent from the record that the package was delivered to the person in response to whose telegraphic order appellees sent the package, appellees at the time believing such person to be J. C. Stubblefield; and it is no doubt also true that at the time of delivery the agent of appellant ascertained that the person who demanded the package, and to whom it was delivered, was the person in response to whose order appellees sent the same, and that appellees treated the order for the money as the order of J. C. Stubblefield; and it may also be true that the agent used reasonable diligence to ascertain the identity of the person who demanded the package before it was delivered. Would these facts relieve the carrier of liability for delivering the package to a person to whom it was not consigned ?
In Hutchinson on Carriers (sec. 344) the rule with reference to delivery is stated as follows: “Ho circumstance of fraud, imposition or mistake will excuse the common carrier from responsibility for a delivery to the wrong person. The law exacts of 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 mistakes in this respect, no matter from what 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 for whom the goods were not directed or consigned.”
In United States Express Co. v. Hutchins, 67 Ill. 348, where an action was brought against the express company for its failure to deliver a package of money left with it to be carried and delivered, this court said in regard to the liability of the company (p. 350): “They became insurers for its safe delivery. Being so, nothing can excuse them from their obligation safely to carry and deliver, but the act of God or the public enemy. This rule of the common law, the rigid application of which has given so much satisfaction and security to the commerce of nations, is properly invoked in cases like this.”
In Baldwin v. American Express Co. 23 Ill. 120, where an action was brought against the company to recover the value of a package of money which it,. as common carrier, undertook to carry from Chicago to Madison, Wis., and deliver to a certain named person, it was held to be the settled doctrine of England and of this country that there must be an actual delivery to the proper person, and in no other way can the company discharge itself of responsibility as a common carrier, except by proving that it has performed such engagement, or has been excused from the performance of it, or been prevented by the act of God or the public enemy. After citing authorities in support of this position it is said (p. 123): “It is necessary, in order to give one security to property, this rigid rule should obtain, and it has for years been enforced against common carriers. They are considered as insurers, and are under that responsibility.” In Gulliver v. Adams Express Co. 38 Ill. 503, the rule announced in the case last cited was sanctioned and approved.
In American Merchants’ Union Express Co. v. Milk, 73 Ill. 224, an action was brought against the company to recover for a package of money delivered to the company in DuPage county, to be forwarded to Kankakee. When the package arrived at its destination the agent of the company delivered it to a certain person on a forged order of tlie consignee. It was held that it is the duty of an express company, upon receiving a package of money to be forwarded, to safely carry and deliver it to the consignee, and the only way it can relieve itself from responsibility as a common carrier is by showing performance, or its prevention by the act of God or the public enemy, and that it is not discharged by delivering the same to another on a forged order of the owner. The same doctrine is announced in American Merchants’ Union Express Co. v. Wolf, 79 Ill. 430.
The decisions of this court are believed to be in harmony with the law as declared in the text books and as announced by a large majority of the courts of last resort of the country. The law requires at the hands of the carrier absolute certainty that the person to whom the delivery is made is the real person to whom the goods have been consigned, and the carrier cannot escape liability on the ground that deception, imposition or fraud may have 'been resorted to by an impostor to obtain from the agent of the carrier the goods entrusted to its care. The business interests of the country, as well as the rights of a consignor who pays a liberal price for the transmission of his property, alike demand that the carrier should be held to a strict accountability.
There are a number of cases in the books where a delivery of goods has been made by the carrier to the wrong person under circumstances not unlike the facts under which the money was delivered here, where the carrier was held liable. In American Express Co. v. Fletcher, 25 Ind. 493, a person pretending to be J. O. Riley called on the telegraph operator and agent of the express company and sent a telegram to plaintiff requesting a certain sum of money by express. In a short time the same agent received by express a package of money addressed to J. O. Riley. The person who had sent the telegram for the money called on the agent and operator and demanded the package of money, which was delivered over to him. Subsequently it turned out that the person who sent the telegram and to whom the money was delivered was not J. 0. Riley, and the express company was held liable for the money. In the decision of the case the court, among other things, said: “The' express undertaking of the appellant was to deliver the package 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. He identified himself merely as having so pretended on the day before, by transmitting a telegram in Riley’s name. This was no better evidence that his name was Riley than if he had so stated to the express agent or any third person. That the package had been sent in response to a telegram purporting to be from J. O. Riley simply proved that Riley had credit, e, owned the goods, and upon their arrival in Dayton had the right to demand them of the carrier. In delivering them to him the carrier was guilty of no fault or negligence. It delivered them to the person who bought. and owned them, who went by the name of Edward Pape, and thus answered the directions upon the package, and who was the person to whom the plaintiff sent them.”
In the case of Dunbar v. Boston, etc. Co. 110 Mass. 26, one Gorman presented himself in Boston to Dunbar, representing that he was John H. Young of Providence. In the name of Young he purchased goods and had them consigned by the defendant carrier to “John H. Young, Providence, R. I.” On the arrival of the goods Gorman pretended to the carrier that he was the agent of John H. Young, and secured the delivery of the goods. Dunbar sued for a misdelivery. The opinion of the Supreme Court says: “The plaintiff sold the gin and whisky which are the subject of this action to a person calling himself John H. Young of Providence, and delivered them to the defendants to be carried to the same person in Providence by the same name. As he was the only person in Providence who bore that name there was no other individual to whom the defendant could deliver the property, and delivery to him would be a performance of the contract.” There are numerous cases arising upon commercial paper which adopt the same rule as held in the foregoing cases. Among these are Palm v. Watt, 7 Hun, 318; Kohn v. Watkins, 26 Kan. 691; United States v. National Fxchange Bank, 45 Fed. Rep. 163; Hoge v. First Nat. Bank, 18 Ill. App. 501. In the latter case a person stopping transiently at a hotel in Chebanse, Ill., gave his name as William Robbins. He procured an application for a loan, distributed by one Sanford, to be filled out in the handwriting of one Trescott, who was known to Sanford, and signed the name “William Robbins” to the application. With the application was an abstract of title to land lying near Lockport, Ill., showing title in William Robbins, Jr. The loan was made by one Hoge, andj note and mortgage executed in the name of William Robbins. The money was remitted by draft payable to William Robbins, which this person procured to be cashed. There was no evidence whether his real name was Robbins or not, but there was a William Robbins living near Lockport who owned the land but had nothing to do with the transaction. The entire business was conducted between Sanford and the impostor by mail. Hoge sued the bank that cashed the draft on the ground that it had »been paid on a forged endorsement. The judgment was in favor of the bank. The court in the opinion says: “The record shows that there was, at the time the fraud in this case was perpetrated, a man at Chebanse who was known in that place, so far as he was known at all, by the name of William Robbins. There is nothing to show that such was not his true name,—no evidence that he was ever known anywhere by any other name. * * * He, in the name by which he was known to Sanford and Hoge, executed the note and mortgage which formed the consideration for the draft, and there is not the slightest doubt that they intended the draft should be paid to the identical individual with whom they had corresponded, and who executed the note and mortgage for which it was given.” So in the present case, there is no evidence that the name of the party to whom delivery was made was not in fact J. C. Stubblefield, although not the same J. C. Stubblefield whom plaintiffs knew. He had been at a hotel in Chetopa four days, representing that to be his name, and sent and received telegrams and ordered cars in that name. He was known there by this name only. This was prima facie evidence of his true name, and he, being the only person in Chetopa bearing or claiming that name, would satisfy the directions for delivery, ancl thus put upon the plaintiffs the burden of proof of showing that the delivery was not made to a person named J. C. Stubblefield, or that the defendant company was guilty of negligence.