Williams-Richardson Co. v. New Orleans N.E.R. Co.

O’NIELL, C. J. (dissenting). The principle that ought to govern this case — and that is overlooked in the majority opinion — is that, *41 where one or the other of two parties whose mistakes have caused a loss must suffer the loss, and where neither of them has intended to do wrong, the one who was primarily or mainly at fault, and whose mistake was the cause of the other’s mistake, must bear the loss. The plaintiff, Williams-Richardson Company, Limited, has a wholesale dry goods establishment in New Orleans, La. Among the regular customers of the establishment were the firm of W. H. Magee & Co., at Purvis, Miss., and the firm of J. T. Magee & Co., at Prentiss, Miss. The defendant, New Orleans & Northeastern Railroad Company, has its line of railroad extending from New Orleans, La., to Meridian, Miss. Purvis is on that road. Prentiss is on the Mississippi Central Railroad, which connects with the New Orleans & Northeastern Railroad somewhere in Mississippi, between New Orleans and Meridian. The distance between Purvis and Prentiss is about 50 miles by rail. • The plaintiff shipped a case of cotton goods in fulfillment of an order from W. H. Magee & Co., Purvis, Miss., but, by a mistake of the shipper, which the railroad company had no knowledge of, the shipment was consigned to W. H. Magee & Co., Prentiss, Miss.; which, of course, required the New Orleans & Northeastern Railroad Company to rout the shipment over the Mississippi Central Railroad to Prentiss, Miss. When the shipment arrived at Prentiss, the railroad agent there, being accustomed tp delivering just such shipments from the same consignor to J. T. Magee & Co., and there being no other Ma-gee & Co., at Prentiss, or receiving freight from that station, assumed that there was a mistake in the initials of the consignee, and delivered the goods to a drayman for delivery to J. T. Magee & Co. The latter was then, and is yet, as far as the record shows, a reliable mercantile firm. The shipment was on a straight, nonnegotiable bill of lading, and was an interstate shipment. The. question is whether Williams-Richardson Company, Limited, has a right of action against the New Orleans & Northeastern Railroad Company or should look to J. T. Magee & Co., for' the value of the goods. The mistake of the agent of the Mississippi Central Railroad Company at Prentiss, Miss., in delivering to J. T. Magee & Co., at that place a shipment consigned on a straight bill of lading to W. H. Magee & Co., Prentiss, Miss., was not only a very natural and excusable mistake, but it was induced by — and was the very natural and almost necessary consequence of — the mistake of the> shipper, in consigning the shipment to W. H. Magee & Co., Prentiss, Miss., instead of consigning it to W. H. Magee & Co., Purvis, Miss. Why should a railroad agent be not excused for •making a mistake for .which any one else making it would be excused? The agent was accustomed to receiving and delivering regularly the same'kind of shipments from the same consignor to J. T. Magee & Co., Prentiss, Miss. There was no other firm or company named Magee & Co., at Prentiss, Miss., or ever receiving freight at that station. The railroad agent there could not have imagined that Williams-Richardson Company might have another customer named Magee & Co., in another town and on another railroad in Mississippi, for whom the shipment might have been intended. It was only natural and reasonable for the agent to take it for granted that there was a mistake in the initials of the consignee, and to deliver the shipment to J. T. Mqgee & Co., Prentiss, Miss., for that was the only Magee & Co., at Prentiss, Miss., to whom he could deliver the shipment, and that was the Magee & Co. to whom he was accustomed to delivering such shipments from Williams-Richardson Company, We must bear in mind that the shipment •was on a straight, nonnegotiable bill of lad *43 ing. There is no charge of negligence on the part of the carrier for delivering a shipment 'without requiring the production and surrender of a negotiable bill of lading. If the shipment consigned to W. H. Magee & Co., Prentiss, Miss., had been intended to be held for delivery there to the order of a firm bearing that name and domiciled and doing business in some other city, the shipment would have been made on a negotiable bill of lading. In fact, the shipper did not intend that the shipment should be held for or delivered to the order of W. H. Magee & Co., at Prentiss, Miss. There was therefore no breach of duty, or breach of contract, on the part of the railroad company in failing to deliver the shipment to a firm styled W. H. Magee & Co., at Prentiss, Miss. There was no such firm there, and therefore no possibility and no intention of delivering the goods to W. H. Magee & Co., at Prentiss, Miss. And surely the railroad agent was not obliged to hold the goods subject to delivery at Prentiss, Miss., to a firm styled W. H. Magee & Co., domiciled and doing business in some other town and on some other railroad in Mississippi. It will hardly" do to say that this suit is for damages for breach of contract. The plaintiff, as consignor, did not contract or intend to contract with the railroad company — and the railroad company did not contract or intend to contract with the plaintiff — to deliver the shipment at Prentiss, Miss., to the firm styled W. H. Magee & Co., domiciled and doing business at Purvis, Miss. That was the form of the contract between the parties, but it was a contract in form only, not in substance, because there was no intention on 'the part of either of the parties to make such a contract, and no intention or possibility of carrying it out. It was a blunder on the part of the shipper; and it was therefore either no contract at all or it was a contract whereby the carrier was to carry the shipment to Prentiss, Miss., and deliver it there to the plaintiff’s customer, a firm named Magee & Co. — the only firm having that name in Prentiss, Miss. It is suggested that the railroad agent at Prentiss, Miss., might have avoided the consequence of the shipper’s mistake, if he (the railroad agent) had refused to deliver the goods to J. T. Magee & Co., at Prentiss, Miss., and had notified the shipper of his mistake, when he (the agent) observed that the shipment was consigned to W. H. Magee & Co., Prentiss, Miss. That is the same as to suggest that the railroad company should be held responsible for the shipper’s mistake, because it was possible for the railroad agent, on the other line of railroad to avoid the consequence of the shipper’s mistake, by thinking of the possibility that the shipment might not be intended for the shipper’s regular customer, named J. T. Magee & Co., at Prentiss, Miss.' — the only Magee & Co., in Prentiss, Miss. — but might be intended for another customer named Magee & Co., in some other town and on some other railroad in Mississippi. That doctrine would establish a bad precedent. Stated broadly, it means •that the carrier is responsible for the shipper’s mistake, if it is at all possible — even though it is very unlikely — for the carrier to check and avoid the consequence of the shipper’s mistake. It sounds like invoking the doctrine of the last clear chance, in a suit which is either for breach of contract or has no foundation at all. If the railroad agent at Prentiss, Miss., under the peculiar circumstances of this case, had delayed delivering the shipment to the only firm styled Magee & Co., in Prentiss, Miss., on the suppostion that the shipment might have been intended for some other firm styled Magee & Co., in some other town and on some other railroad in Mississippi, and, if it had after-wards developed, as was very likely, that the shipment was intended for the shipper’s ¡regu *45 lar customer styled J. T. Magee & Co. — the only firm named Magee & Company in Prentiss, Miss, — and, if that firm had sustained a loss in consequence of the railroad agent’s acting upon such an improbable and unreasonable supposition on his part, there would have been far more justice in holding the railroad company responsible for the loss than there is in this case. There is no authority cited in the majority opinion to support the doctrine that the carrier is responsible for a.wrong delivery, made in consequence of a mistake of the shipper, if it was possible, though not at all likely, for the carrier to avoid the consequence of the shipper’s mistake. The carrier’s responsibility in such cases ought to depend upon the circumstances peculiar to each case. If the circumstances are such — as they were in this ease — that the carrier’s mistake in making a wrong delivery was the natural and probable result of the shipper’s mistake, the carrier is not responsible. That rule is sustained by the decisions referred to in the majority opinion in this case, as far as they are pertinent. In Stimson v. Jackson, 5S N. H. 138, for example, it is said: “Carriers are not liable for a misdelivery made through a mistake made in the direction of a parcel, if such mistake is not known to the carrier, and he delivers the parcel according to the direction, and the known course of business at the place of destination.” The rule is repeated in Missouri Iron & Metal Co. v. Texas & Pacific Railway Co., 198 S. W. 1067 , by the Court of Civil Appeals of Texas, viz.: “If the carrier deliver the goods to one other than the consignee, or his duly authorized agent, and said goods are lost or injured thereby, the carrier is responsible, even though said delivery was made to a person whom the carrier in good faith, but erroneously, believed to be duly authorized * * * to accept and receipt for the goods. Of course, this statement of the lato is subject to the exception, that if the mistake in the delivery was caused or induced by the act of commission or omission of the consignor, himself, the carrier would be relieved from liability because of said mistake.” (The italics are mine.) In Lake Shore & M. S. Railroad Co. v. Hodapp, 83 Pa. 22 , the railroad company’s agent at the point of destination did not inquire of the shipper before delivering the goods to the wrong party. The shipper intended to consign the shipment to Leopold Hodapp, but by mistake consigned it to Leopold Hotelfa. Leopold Hodapp, being informed that the shipment had been made to him, ’ inquired for it at the carrier’s office, and although the package addressed to Leopold Hotelfa was there, was told that there was no package there- for him (Leopold Hodapp). After the package had remained about two months in the carrier’s office, the carrier’s agent inferred that it belonged to Christian Leopold, who operated a hotel Called Leopold’s Hotel, where many immigrants stopped. When Leopold Hodapp learned that his package had been delivered to Christian Leopold, or to Leopold’s Hotel, he sued for damages for the value of the package'; but the court held that the carrier was not responsible for the wrong delivery, because it was the result of the shipper’s mistake in directing the package wrong. The court said: “Where a box improperly directed was delivered to a railroad. company for transportation and was safely carried to its destination, and there, after having been securely kept for two months, and due diligence exercised to ascertain the consignee, was delivered, by reason of the improper direction, to the wrong person, the company was not liable for the loss.” The majority opinion in this case holds the carrier liable in damages to the shipper for a mistake which was not only a very natural and pardonable one on the part of the railroad company’s agent, but which was the natural and almost necessary consequence of the mistake of the shipper himself. I respectfully dissent from the ruling.