#### F. Childe Hassam, Respondent, *v.*Edward T. Platt, as Treasurer of the United States Express Company, Appellant.

First Department,

July 10, 1914.

Common carrier — liability of express company for failure to deliver property to true owner — conversion.

An express company is responsible as an insurer for the delivery of property to the true owner thereof. Hence, where it delivers property consigned to the owner*, to the clerk of a hotel, where the owner was not a guest, and had not been, and who signed a receipt for it, it is liable for conversion, where the property is never received by the true owner, who had no knowledge of its shipment or receipt at the hotel.

Appeal by the defendant, Edward T. Platt, as treasurer, etc., from a judgment of the Supreme Court hr favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 28th day of April, 1913, upon the verdict of a jury rendered by direction of the court, both sides having moved for the direction of a verdict at the close of the case, and also from an order entered in said clerk’s office on the 26th day of April, 1913, denying the defendant’s motion for a new trial made upon the minutes.

*Branch P. Kerfoot,*for the appellant.

*Philip Carpenter*of counsel *[Frank Parker Ufford*with him on the brief], for the respondent.

*367Clarke, J.:

This is an action for conversion against an express company. At the close of the case both sides moved for the direction of a verdict. The court left the question of value to the jury which found it to be $800. Subsequently, under stipulation, it directed a verdict in favor of the plaintiff for $1,174.93. Defendant appeals.

Plaintiff, an artist, sent a painting, ££ A Rainy Day in Washington Square,” to the Boutwell Brooks Art Company, Denver, Col., for exhibition. Sometime thereafter and on June 3, 1905, the said painting, packed in a box weighing nineteen pounds, was delivered by said art company at Denver to the United States Express Company, consigned to the plaintiff in New York city; express charges of two dollars were paid thereon. It was stipulated on the trial that said painting was the property of the plaintiff, and that the nature and value thereof was unknown to the defendant; that said shipment was on or about the 7th day of June, 1905, delivered by said express company at No. 27 West Twenty-seventh street, which was then one of the entrances to the Metropolitan Hotel; that it was received by the clerk or other employee of said hotel and receipted for on the plaintiff’s behalf by signing the name ££ George W. Mott,” but without plaintiff’s knowledge and consent; that it remained unclaimed in the possession and custody of said hotel for some time thereafter; that until April 1, 1906, the plaintiff was not personally aware that said shipment had ever been made or that the receipt above referred to had been given or accepted, and the consignor was not aware or notified that said shipment had not duly reached the plaintiff; that said painting has never been delivered to the plaintiff; that no notice of non-delivery or claim of loss was presented to said express company for more than sixty days after date of shipment, but such notice was presented not later than May 12, 1906.

It appeared that plaintiff resided at a studio at 27 West Sixty-seventh street. He testified that he had never stopped at the Metropolitan Hotel.

Mr. Mott, who signed the receipt, testified that in June, 1905, he was a clerk at the hotel when this picture addressed to Mr. *368Hassam was received. “I must have seen the driver of the express wagon, he brought the picture in. I had no conversation with him except that I told him that the party wasn’t there, but it possibly might be somebody coming, and I would receive the picture, and I signed for it. I signed a paper there that he produced. * * * I signed for a box. * * * I don’t know what was in it * * * addressed to Mr. Hassam, yes, sir, 27 West 27th Street. I saw the address on the box. * * * I told the driver that Mr. Hassam was not at the hotel. Q. Did you tell him anything as to his being known or unknown there ? A. Yes, sir. After I told the driver that Mr. Hassam was not at the hotel he simply left the box, name So and So, and I signed for it, thinking there possibly may be somebody coming by that name. * * * The express company never called for the package while I was there. "x" * * I was there to May 1st, 1906. The hotel went out of business then and was taken down right after that. When I left the box was behind the desk right where it was put. The contents of the hotel were sold •—to one man. * * * I do not know Mr. Hassam. * * * After June 7th that package laid behind the desk all the time, and kept getting covered up with other goods that would come in and like that. I never sent any notice to the Express Company that Hassam had not come for it. I never opened the package to look into it, simply left it there for Mr. Hassam to call.”

In *Price*v. *Oswego & Syracuse R. R. Co.*(50 N. Y. 213) a fraud was perpetrated upon the plaintiff by a man ordering certain goods to be manufactured and sent to him under a certain name. They were so sent by the railroad company and delivered to a man who presented himself under said name. The defendant railroad company had no knowledge of the fraud and supposed that the person to whom they were delivered was a member of or represented the firm. Geo ver, J., said: “It is the duty of a carrier to carry the goods to the place of delivery and deliver them to the consignee. When goods are safely conveyed to the place of destination and the consignee is dead, absent or refuses to receive, or is not known arid cannot after reasonable diligence be found, the carrier may be discharged from further responsibility as carrier by placing them in a *369proper warehouse for and on account of the owner. *(Fisk*v. *Newton,*1 Denio, 45.) The responsibility continues as carrier until discharged in the manner above stated. Hence, a delivery to a wrong person, although upon a forged order, will not exonerate the carrier from responsibility. *(Powell*v. Myers, 26 Wend. 591.) In examining the cases, the distinction between the liability of carriers and warehousemen must be kept in mind. The former is responsible as insurer. The latter for proper diligence and care only, in the preservation of the property and its delivery to the true owner. The former must, at their peril, deliver property to the true owner, for if delivery be made to the wrong person, either by an innocent mistake or through fraud of another, they will be responsible, and the wrongful delivery will constitute a conversion. *(McEntee*v. *The New Jersey Steamboat Co.,*45 N. Y. 34.) It is of the liability of a warehouseman after the responsibility as carrier had terminated that the chief judge is speaking in the opinion in *Burnell*v. *The N. Y. Central R. R. Co.*(45 N. Y. 184), where he holds that the defendant was responsible only for due care and diligence.’’

In *Security Trust Co.*v. *Wells, Fargo & Co.*(81 App. Div. 426; affd. on opinion below, 178 N. Y. 620) a trust company had on deposit certain moneys belonging to one Eachel G-. Eice. It received a letter purporting to be signed by her directing the trust company to send to her at G-eneseo, N. Y., $500 in currency. The trust company stamped the check purporting to be signed by her, paid, and delivered to" the express company a. package containing the $500 addressed to Eachel G-. Eice, Greneseo. JST. Y. Upon receipt of the package the express company’s representative made inquiries for the consignee and, being unable to learn that any one bearing that name lived or was in the vicinity, placed the package in the company’s safe. Shortly thereafter a man who claimed to be Frank Eice called at the office of the express company and produced an order for the money ostensibly signed by the consignee. The package of currency was thereupon delivered to him. It subsequently appeared that- the letter and check sent to the trust company and the order exhibited to the express company were fictiti*370ous and that the package of currency was not delivered to the consignee. Held, that the trust company which had made good the $500 to Mrs. Bice was entitled to recover the $500 from the. express company, as the latter’s agent when he delivered the package knew that he was not delivering it to the consignee, hut took the risk that the person purporting to be Frank Bice was the *alter ego*of the consignee. Spring-, J., said: “The strict rules governing the liability of a common carrier for the misdelivery of goods transported by it are not even necessary to be resorted to in this case, for any one who, for a compensation, undertakes to deliver an article to a certain person and then hands it over to one that the deliverer well knows is not the person to whom he agreed to make delivery, is liable. He may not be excused, because, forsooth, he believed the one to whom delivery was made represented the person who was to receive the article. The liability of the common carrier, nevertheless, is the measure to be meted out to the appellant. It received the goods strictly within that capacity and cannot be exonerated until the goods have been delivered to the consignee. ‘No obligation of the carrier is more rigorously enforced than that which requires delivery to the proper person.’ *(Furman*v. *Union Pacific R. R. Co.,*106 N. Y. 579, 585.) In *McEntee*v. *New Jersey Steamboat Co.*(45 N. Y. 34) the court say (at p. 37): *‘*Common carriers deliver property at their peril, and must take care that it is delivered to the right person, for if the delivery be to the wrong person, either by an innocent mistake or through fraud of third persons, as upon a forged order, they will be responsible, and the wrongful delivery will be treated as a conversion.’ [Citing *Price v. Oswego & Syracuse R. R. Co.,*50 N. Y. 213; *Pacific Express Co.*v. *Shearer,*160 Ill. 215; 37 L. R. A. 177; Hutch. Carriers, §§ 344-349; Lawson Bailm. § 200.]

“The wrongful delivery rendered the appellant liable for conversion. *(Guillaume*v. *Hamburgh & American Packet Company,*42 N. Y. 212; *Hawkins*v. *Hoffman,*6 Hill, 586.)

“ In Wait’s Law and Practice (Vol. 1 [7th ed.], 412) is the following concise statement of the rule: £ If a common carrier delivers goods to the wrong person, although by his own innocent mistake or by his being imposed upon, he is liable to the *371true owner for the value. The carrier delivers at his peril. He is responsible as an insurer. And a wrongful delivery by him is treated at common law as a conversion of the property.’ Nor would it benefit the defendant if the liability were that of a warehouseman or of an involuntary bailee, for the wrongdoing consisted in the affirmative act of delivering the goods to a person not the consignee. *(Bank of Oswego*v. *Doyle,*91 N. Y. 32.) ”

It also held that the ninety-day clause did not apply. The court said that: “ The claim in this case was not presented until more than two years after the delivery of the package, but it was made promptly upon information of the fraud received by the respondent. This clause follows the clauses defining what constitutes the limitation upon its liability and, as has been stated, not one refers to any restriction of that liability for a delivery to a person other than the consignee. Within the strict construction which is to be applied to stipulations designed to give immunity to a common carrier for the accountability which the law imposes upon it [citing cases], the general words will not be construed to relieve the appellant, but the claim will be confined to the limitations mentioned in the contract. In the cases cited, the general language employed was held not to exempt the carrier from responsibility for its negligent acts. The tortious act which renders it amenable to an action for conversion brings the case within the principle adverted to.”

In *Sonn*v. *Smith*(57 App. Div. 372), a case of misdelivery, the court said: “Every bailee is bound, at his peril, to know that the person to whom he delivers the chattel is the proper person to receive it, and if he delivers it to the wrong person, though acting in perfect good faith, he is nevertheless liable for its conversion.”

In *Schlesinger & Sons*v. *N. Y., N. H. & H. R. R. Co.*(85 N. Y. Supp. 372) the delivery was at the place to which the shipment was addressed, but not to the consignee. The court held there was no delivery and the carrier was liable.

In *McCulloch*v. *McDonald*(91 Ind. 240) the goods were delivered to I. Kling who had a bakery at the corner of Walnut and J ackson streets. The teamster was given a bill inclosed *372in a sealed envelope directed to E. Cline. On the envelope were the words ‘ ‘ Walnut and Jackson. ” The court said: *‘ ‘*The flour was directed to E. Cline and delivered to I. Kling. The names are unlike and in this respect the directions were explicit and not misleading. The appellant could not have mistaken the ' one for the other by reason of any similarity in the names and the fact that the place of business was misstated did not authorize him to deliver the goods to any other person who might be engaged in business at that point. He was bound to deliver the flour to the consignee or retain it. Nor was he justified hi assuming that the appellees had misdirected the flour. In delivering it upon such assumption, he acted at his peril and must bear the loss.”

In *Forbes*v. *Boston & Lowell R. R. Co.*(133 Mass. 154) Morton, C. J., said: “It is settled that any misdelivery of property by a carrier or warehouseman to a person unauthorized by the owner or person to whom the carrier or warehouseman is bound by his contract to deliver it, is of itself a conversion, which renders the bailee liable in an action of tort in the nature of trover, without regard to the question of his due care or negligence. *Hale*v. *Boston & Worcester Railroad,*14 Allen, 439.”

In *North Pennsylvania Railroad*v. *Commercial Bank*(123 U. S. 727) Field, J., said: “ The duty of a common carrier is not merely to carry safely the goods intrusted to him, but also to deliver them to the party designated by the terms of the shipment, or to his order, at the place of destination. There are no conditions which would release him from this duty, except such as would also release him from the safe carriage of the goods. The undertaking of the carrier to transport goods necessarily includes the duty of delivering them. * **** No obligation of the carrier, whether the freight consists of goods or of five stock, is more strictly enforced. *(Forbes*v. *Boston & Lowell Railroad Co.,*133 Mass. 154; *McEntee*v. *New Jersey Steamboat Co.,*45 N. Y. 34.) If the consignee is absent from the place of destination, or cannot, after reasonable inquiries, be found, and no one appears to represent him, the carrier may place the goods in a warehouse or store, with a responsible person, to be kept on account of and at the expense *373of the owner. He cannot release himself from responsibility by abandoning the goods or turning them over to one not entitled to receive them. *(Fisk*v. *Newton,*1 Denio, 45.) ” (Citing, also, *Furman*v. *Union Pacific R. R. Co.,*106 N. Y. 579, and *Bank of Commerce*v. *Bissell,*72 id. 615.)

In *Wamsley*v. *Atlas Steamship Co.*(168 *N. Y.*533) \ Werner, J., said: “The general rule is that a common carrier is not liable in conversion for mere nonfeasance * * *. So on the contrary he may be held in trover when he is guilty of misfeasance, although the wrong may have been unintentional. The principle is thus stated in *Hawkins*v. *Hoffman*(6 Hill, 588): ‘Trover will lie when goods have been lost to the owner by the act of the carrier, though there may have been no intentional wrong; as when goods are by mistake, or under a forged order, delivered to the wrong person ’ * * *. In *Packard*v. *Getman*(4 Wend. 615) the Supreme Court said: *‘** * " Where a carrier loses goods by accident trover does not lie; but where he is an actor and delivers them to a third person, though by mistake, the action lies. * * - ’ Following these cases and citing with approval the authorities upon which they are based, this court, in *Magnin*v. *Dinsmore*(70 N. Y. 417), thus stated the law of conversion as applied to common carriers: ‘A conversion implies a wrongful act, a misdelivery, a wrongful disposition or withholding of property.’ ” (See, also, Elliott Railroads [2d ed.], §§ 1523, 1526; 6 Cyc. 472, 473; 38 id. 2011.)

It seems to me that, upon the foregoing authorities, the judgment appealed from was right and should be affirmed, with costs to the respondent.

Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Judgment and order affirmed, with costs.