During the months of July, August, September, October and November, 1909, there were delivered to a rail carrier at Buffalo a large number of cars of wheat for transportation and which were delivered to the defendant as the final carrier and by it transported to Oneonta. This wheat was shipped under bills of lading issued at the time of shipment which were of the "order" character and in which a corporation known as the Durant Elmore Company was named as consignor, consignee and party to be notified. The wheat was delivered to the consignee at Oneonta a few days after shipment and upon its order subsequently shipped to other destinations and parties. Although it was provided in the bills of lading themselves and also by the Penal Law (Sec. 365), that the wheat transported under these bills of lading should not be delivered without taking up the latter, the defendant as matter of fact delivered the wheat to the Durant Elmore Company without surrender of the bills of lading.
The Durant Elmore Company on May 17, 1910, was short alike of money and moral principles and so *Page 429 it changed the dates of these bills of lading from dates which averaged several months prior to May 17, 1910, to dates which preceded that date by only a few days and then presented the bills to the plaintiff as security for a loan which was granted by it thereon. A short time thereafter the borrower failed and only a part of its loan having been paid plaintiff brought this action against defendant for damages because it would not and could not deliver the wheat covered by the bills of lading which had been thus taken as security. The question is whether the failure of defendant to take up the bills of lading on delivery of the wheat as it should have done was the proximate cause of plaintiff's loss. I do not think that it was.
It has either been found or is so established by the evidence as to be conceded that the bills of lading as they were left in the hands of the Durant Elmore Company on the delivery of the wheat were "spent bills" and that their dates preceded the date when they were delivered to plaintiff as security by so long a period that the latter would have been put upon suspicion and required to make some inquiry concerning the situation and which inquiry, of course, would have led to the information that the wheat covered by the bills had been delivered. This is obvious. Some of these bills of lading antedated the date of their use with plaintiff by ten months and a bill of lading for such a commodity as wheat covering a comparatively short distance of transportation presented ten months after the wheat was shipped would be bound to excite the suspicion of any reasonably cautious person. As we understand it, this is not denied. Plaintiff's counsel nowhere disputes it. Therefore, if these bills of lading had been presented in their original form they would not have been accepted and defendant's omission to take them up would not have resulted in damage to the plaintiff. The act which made them available for use and which justified the plaintiff in accepting them as *Page 430 security was the conceded crime of the consignee in changing the dates of the bills of lading so as to take them out of the class of "spent bills" and to confer upon them an appearance of genuine bills outstanding in accordance with ordinary custom. As I say this criminal act made it possible to use them; without it they could not have been used and the defendant's omission would have resulted in no harm.
Under these circumstances I fail to see how it can be said that its omission was the proximate cause of plaintiff's injury. In the first place it has been found as matter of fact that it was not such proximate cause and ordinarily it is to be determined as a question of fact whether there has been such a connection between cause and effect as to make the former proximate. (Milwaukee St. Paul Ry. Co. v. Kellogg, 94 U.S. 469, 475.) But if we disregard this particular finding of fact we then have it on other findings that between defendant's omission and plaintiff's injury there has intervened the criminal act of a third party without which the injury could not have occurred. There has been produced a great amount of legal literature and numberless opinions on this subject of proximate cause which it is impossible and undesirable to attempt to review. But I think that there is one fundamental rule which has been clearly established in the discussion of the subject which is decisive of this case, and that is the one that the act of a party sought to be charged is not to be regarded as a proximate cause unless it is in clear sequence with the result and unless it could have been reasonably anticipated that the consequences complained of would result from the alleged wrongful act; that if the consequences were only made possible by the intervening act of a third party which could not have reasonably been anticipated then the sequential relation between act and results would not be regarded as so established as to come within the rule of proximate cause. (Pullman Palace Car Co. v. Laack, 143 Ill. 242,260, 261; *Page 431 Linning v. Ill. Cen. R.R. Co., 81 Iowa 246, 251, 252;Trapp v. McClellan, 68 App. Div. 362, 365, 366; Milwaukee St. P. Ry. Co. v. Kellogg, supra, pp. 474, 475; Laidlaw v.Sage, 158 N.Y. 73; Hoffman v. King, 160 N.Y. 618, 627.)
In Hoffman v. King (supra) the rule is stated as follows: "The damage must be the proximate result of the negligent act. It must be such as the ordinary mind would reasonably expect as a probable result of the act, otherwise no liability exists."
In Laidlaw v. Sage (supra) the headnote fairly states the rule as laid down in the opinion that "The proximate cause of an event is that which, in a natural and continuous sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred; and the act of one person cannot be said to be the proximate cause of an injury when the act of another person has intervened and directly inflicted it."
In Milwaukee St. Paul Ry. Co. v. Kellogg (supra) it is written: "But it is generally held, that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been forseeen in the light of the attending circumstances."
When we come to the application of this rule to the present case it sustains the judgment which has been rendered. Under ordinary circumstances no one is chargeable with damages because he has not anticipated the commission of a crime by some third party. It is said, however, that in view of the penal statute which has been referred to and of the other facts appearing in the record defendant ought to have anticipated that if it left these bills of lading outstanding they might be fraudulently used and that this would be a crime and that, therefore, it should be charged with anticipation of the *Page 432 crime which has been committed. In my opinion this course of reasoning cannot be sustained. It might very well be that the defendant in leaving the bills outstanding might be charged under a question of fact with anticipation that they might be presently used, although the wheat had been delivered. We know that this kind of wrongdoing is not infrequent and a party might be charged with the obligation to foresee it. That, however, is not the offense about which we are talking. Bills of lading which had become absolutely stale and useless were resurrected into a condition of life by the crime of forgery and there is nothing to indicate that this offense is so common that the defendant ought to have anticipated it. Certainly it cannot be said as matter of law that it ought to have anticipated what took place and there not only is no finding of fact that it should have anticipated it but the findings and the refusals to find are directly opposed to any such theory as that.
In my opinion it is impossible fairly and logically to escape the principles and binding force of Mairs v. Balt. O.R.R.Co. (175 N.Y. 409), as leading to an affirmance of the judgment which has been rendered. In that case a carrier on delivery of goods failed to take up a bill of lading issued therefor which although not marked "non-negotiable" was in fact non-negotiable. The bill was subsequently altered so as to make it negotiable and it was transferred to a bona fide transferee. It was held that while the carrier was probably guilty of a criminal offense under the statute already referred to, there could be no recovery by the subsequent transferee of damages because of the illegal act of the carrier unless it had suffered direct and appreciable damages as a result of the illegal act, and it was held that the omission of the carrier was not the proximate cause of injury but that the cause of this was the criminal act of forgery performed upon a bill of lading whereby it was made to appear to be negotiable. In other words, the omission of the carrier *Page 433 was not the proximate cause of damages when there had been the criminal intervention of a third party which made it possible to perform the act causing the damages. What was said in that case seems to me precisely to fit the present one. It was said: "It is, therefore, apparent that the plaintiff could not have been induced to part with any property or make loans upon this bill of lading had it remained in the form in which it was originally executed. He was induced to take it for the reason that it appeared to be negotiable. He was deceived by reason of the forgery and for this the defendants were not responsible. The forgery was not the direct or proximate result of the omission to take up the bill of lading, but was the independent and felonious act of another person." (p. 414.)
For these reasons I think that the judgment appealed from should be affirmed.