dissenting:
I cannot concur in the views held by the majority of the court on this record. The rule of law is well settled that the carrier must deliver the goods carried, to the person to whom they are consigned. No fraud or imposition practiced upon the carrier, and no mistake of the carrier or its agent, however satisfactory the circumstances of identification may be, will relieve the carrier. The law requires a delivery to the person to whom the goods are shipped, and the carrier assumes the entire risk of mistake in respect to the identity of the person to whom a delivery may be made. That requirement makes the carrier insurer for safe delivery to the consignee of the goods carried, and no excuse can prevail for a delivery to another than the consignee. (United States Express Co. v. Hutchins, 67 Ill. 348; Baldwin v. American Express Co. 23 id. 120; American Merchants’ Union Express Co. v. Milk, 73 id. 224; American Merchants’ Union Express Co. v. Wolf, 79 id. 430; Gulliver v. Adams Express Co. 38 id. 503.) The duty thus imposed upon the carrier is discharged when it delivers the goods to the person to whom the consignor sent them.
The facts in this record show that appellees, acting on a telegram purporting to have been sent by one J. C. Stubblefield, forwarded by appellant, from Chicago, lilinois, to J. C. Stubblefield, at Chetopa, Kansas, the sum of $4000, which was delivered by the carrier to the person who sent the telegram. The person who sent the telegram is shown to have called himself J. 0. Stubblefield, and was, during the short time he remained in Chetopa, so known and called. He was not there known or called by any other name. What other residence he may have had is unknown, so far as the evidence shows, as is also the fact whether that was his real name. It is apparent, from the evidence, his purpose was to defraud the appellees. In reply to the telegram requesting appellees to send money by express and answer the same, the request therein made was complied with and the money forwarded. It does not appear that any directions were imposed upon the carrier as to any investigation as to the sender of the telegram, and no contract made further than that arising under the law, which created the relation and duty between consignor, carrier and consignee. The sender of that dispatch was also answered, as requested, and particulars asked for by appellees, and particulars were furnished by another telegram from the same person who sent the first, which were satisfactory to appellees. No investigation was made by the consignors as to the personality of the sender of the dispatch, and none by them asked of the carrier, further than what the law imposed as a duty on it. So far as the consignor was concerned, it was intended, at the time the consignment was made, that the money should be delivered to the sender of the dispatch. That intention grew out of the fact that the consignors had done business with one J. C. Stubblefield, in whom they had confidence, and, believing that he was the sender of the dispatch, they acted on it without investigation. They acted .upon and complied with it, intending delivery to be made to the person sending it. The person who sent the telegraphic order is the identical person in response to whose order the money-was sent, and was the person who demanded the consignment and made proof as to his identity and to whom the goods were delivered.
It is said in Hutchinson on Carriers (sec. 344): ' “No circumstances of fraud, imposition or mistake will excuse the common carrier from responsibility for 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 mistake 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 delivery to a person to whom the goods were not intended nor consigned. If, therefore, the person who applies for the goods is not known to the carrier, and he has any doubt as to his being the consignee, he should require the most unquestionable proof of his identity, or if, from any cause, he should have a reasonable doubt as to whether the person claiming'the goods was entitled to them, he should, refuse delivery to him until he established his right. If, however, the delivery be made to the wrong person, whether by innocent mistake or through fraud practiced upon the carrier, such wrongful delivery will be a conversion.”
This is the true rule of law. Express companies have so many opportunities to do wrong, so many temptations are spread before their employees, and such is the necessity for intrusting them, that every presumption should, of right, be against them, and should prevail unless rebutted. The law imposes upon common carriers the very strictest liability to carry, and safely deliver to the proper person, goods and valuables entrusted to them. This strict liability should in all proper cases be rigidly enforced and in no way lessened. Nor will the law recognize an excuse by which it may be avoided. But while it is true that no fraud or imposition practiced upon the carrier will relieve or excuse it from responsibility for delivery to the wrong person, yet I am not prepared to go to the extent of holding that the carrier is responsible for loss occasioned by fraud practiced upon the consignor, when the carrier itself has used due diligence, care and caution, and is free from negligence. If a fraud is perpetrated upon the consignor by reason of ingenious tricks or devices, or because of a want of care on his part, the carrier does not become a party to that fraud, nor does any liability accrue against it by doing' the only thing the consignor intended should be done. As is said as to the liability of' express companies in United States Express Co. v. Hutchins, supra: “They become insurers for 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.” But the carrier is not an insurer against fraud being perpetrated upon the consignor. The opinion of the court here extends the liability of the carrier to the extent of making it an insurer against fraud perpetrated upon appellees. No negligence is shown on the part of appellant to create a liability against it. No fraud or mistake on the part of the carrier is shown. The fraud that was perpetrated was on the consignor, and not on the carrier.
The case of American Express Co. v. Fletcher, 25 Ind. 492, is cited as directly in point, sustaining the views of the majority. In that case the only question before the court was as to the sufficiency of the second and third paragraphs of the answer, to which demurrers were sustained, and it was held the answer did not set up that the consignment was delivered to the person to whom it was sent. That was the only question before the court. As a pleading the answer set up no defense, and the demurrer was properly sustained.
Most of the cases in which carriers have been held by the courts liable have been based almost solely upon the ground of negligence. The carrier is, under all circumstances, being a bailee, bound to exercise due diligence in the performance of its undertaking, and it is always essential, where the plaintiff seeks to recover upon the ground of negligence, that it has performed its duty with -due diligence.
In the case of Duff v. Budd, 3 Brod. & B. 177, the impostor ordered by mail, under the assumed name of James Parker, goods to be shipped by the carrier and delivered to James Parker in High street, Oxford. There was no James Parker in High street, but there was a William Parker, whom the consignor erroneously believed to be the person who ordered the goods. When the goods arrived at their destination they were offered to William Parker, but he declined them. Subsequently the carrier delivered the goods to a man who demanded them, and who was known to the carrier as Mr. Parker, but not as James 1 Parker nor of High street, and without any information that he was the same person who ordered the goods from the consignor. In this case the judgment was for the plaintiff, but was based upon the finding of negligence. Park, J., said in the opinion: “The real question was whether the defendant and his servants had been guilty of gross negligence in the delivery of the parcel.”
In Stephenson v. Hart, 4 Bing. 476, the impostor in person ordered goods from the plaintiff, who delivered them to the carrier consigned to “J. West, No. 27 Great Winchester street, London.” The carrier was unable to find such a person on that street, and found house No. 27 was vacant. A week or more later the carrier received a letter signed “J. West,” requesting the carrier to re-ship the goods to the “Pea Hen,” a public house at St. Albans. Without any direction to this effect from the consignor the request was complied with, and the impostor received the goods without further identification than his ability to state the contents of the package. In this case the consignor recovered, but the recovery was on the ground that the carrier had been guilty of gross negligence in the performance of its undertaking.
In Price v. Oswego, etc., Co. 50 N. Y. 213, the swindler ordered goods by mail from the plaintiff, signing the name of S. H. Wilson & Co. to the order. The plaintiff complied with the order and sent the goods by the defendant, as above. There was, in fact, no such firm as S. H. Wilson & Co. Soon after the arrival of the goods a person called upon the carrier and asked if the goods had arrived, and learning they had, offered to and did pay the freight charges, whereupon the goods were delivered to him upon his signing a receipt for them. The carrier had no knowledge or information whether the person to whom the delivery was made was the person who signed the order for the goods and with whom the consignor had dealt as with the true consignee. They -were delivered without any evidence of identity whatever, and such delivery/ was an act of gross negligence on the part of the carrier.
In the case of Samuel v. Cheney, 135 Mass. 278, an impostor, during the time he remained at Saratoga Springs, bore the name of A. Swannick. He rented a house or shop, secured a box at the post-office, and had letter-heads printed with his name, upon which was also given the number of his post-office box, all for the purpose of perpetrating the swindle. There was a reputable merchant in Saratoga Springs named Arthur Swannick, who carried on his business in the name of A. Swannick. The swindler ordered a bill of goods from the plaintiff in Boston, signing the name of A. Swannick, • and the plaintiff forwarded the goods by defendant, as carrier, believing the letter was from the reputable merchant, consigning the goods to A. Swannick, Saratoga Springs. At the same time the plaintiff sent a bill for the goods addressed to “A. Swannick, post-office box 1595,” that being the box of the swindler, which, of course, went to him. On the arrival of the goods they were delivered to the swindler without any identification, except that the carrier had previously delivered a package of cigars at his shop. Action was brought against the carrier on the ground that this was a misdelivery, but the court held that the delivery was good. The court in that case said: “The defendant would be justified in delivering the goods to him whether he was the owner or not, because he had ascertained that he was the person to whom the plaintiff had sent them.” To the contention of the plaintiff that he intended to send the goods to Arthur Swannick, the court answered: “We think the more correct statement is that he intended to send them to the man who ordered and agreed to pay for them, supposing, erroneously, that the man was Arthur Swannick. It seems to us that the defendant, in answer to plaintiff’s claim, may well say, ‘We have delivered the goods intrusted to us, according to your directions, to the man to whom you sent them, and who, as we were induced to believe by your act in dealing with him, was the man to whom you sent them. We are guilty of no fraud or negligence.’ ”
In Edmunds v. Merchants, etc. Co. 135 Mass. 283, goods were purchased from plaintiff by one claiming to be.Edward Pape, of Dayton, Ohio, by personal negotiation. There was a reputable business man in Dayton named Edward Pape, and plaintiff supposed he was dealing with him. The goods were delivered by plaintiff to the defendant carrier, to be transported to Dayton and delivered to Edward Pape. Delivery was made to the swindler. In the opinion the court says: “The sale was voidable by the plaintiff, but the carrier by whom they were forwarded had no duty to inquire into its validity. The person who bought them, and who called himself Edward Pa£>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.