Louisville & Nashville R. R. v. National Park Bank, 65 So. 1003

65 So. 1003 | Ala. | 1914

ANDERSON, C. J.

Amended count 5 of the complaint, being the only one submitted to the jury, and which will be set out by the reporter, seeks to charge the defendant with liability for injury resulting to the plaintiff from the purchase by it of a certain bill of lading for 1,950 bales of cotton, purporting to have been issued by said defendant railroad company, but which was false and spurious, having been made up and uttered by Knight, Yancey & Co., resulting from a conspiracy entered into between said Knight, Yancey & Co. and defendant’s agent Bywater, or other of defendant’s agents whose names are unknown.

There are other averments, as to what the defendant’s agents were to do, in pursuance and execution of the conspiracy, but the performance of which is not averred ; and, if that feature as .to the delivery of the cotton upon said spurious bill of lading had been complied with, we doubt the bringing of this suit.

The result is that the gravamen of the action, when sifted down to its final analysis, is that the plaintiff purchased a bill of lading purporting to have been issued by the defendant for cotton which was never delivered to the defendant, and that the said bill of lading was therefore worthless] that said bill of lading was issued by Knight, Yancey & Co. to themselves, in the name of the defendant and in pursuance of a conspiracy entered into between said Knight, Yancey & Co. and its agent John A. Bywater, or other agents of the defendant, all of whom were therein acting within the line and scope of their authority.

The complaint avers, in general terms, that the said Bywater and other agents were “therein” — that is, in entering into the conspiracy — actiug within the line and scope of their eniployment, but does not charge that the things they conspired to do were within the scope of their employment. A charge that an agent entered into a conspiracy to do a wrong when acting within the scope of his employment falls far short of charging that the acts which he conspired to do were within the scope of his employment. In other words, this count 5, which must be construed more strongly against the pleader upon demurrer, simply charges that when Bywater, or the other agents, were acting within the scope of their employment, they entered into a conspiracy to do certain things; but it does not charge that the things done, or to be done, were within the scope of the employment of said agents.

“The general rule is that a conspiracy cannot he made the subject of a civil action unless something is done which, without the conspiracy, would give a right of action. The damage is the-gist of the action, not the conspiracy; and, though the conspiracy may be said to be of itself a thing amiss, it must nevertheless, until something has been accomplished in pursuance of it, be looked upon as a mere unfulfilled intention of several to do mischief.” — Cooley on Torts, § 143.

“Unless something is actually done by one or more of the conspirators iiursuant to the scheme and in furtherance of the object which results in damage no civil action lies against any one. The gist of the action is the damage and not the conspiracy, and the damage must appear to have been the natural and proximate consequence of defendant’s acts.” — 8 Cyc. p. 645, and cases cited.

The result is the proximate cause of plaintiff’s damages, as disclosed by count 5, was the issuance of a false and spurious bill of lading by Knight, Yancey & Co., in the name of this defendant, and in pursuance of a conspiracy with Bywater, or other agents of the defendant who, as charged, were acting within the scope of their employment when entering into the said conspiracy. It is not charged that the thing conspired to be done or which was done, in pursuance of the conspiracy, was within the scope of the employment of said agents.

We therefore hold that if the averment of the conclusion would suffice, and if it stood alone, it does not charge that the act done was within the scope of the employment of the defendant’s agents; but if such was the case, and the pleader, after stating the conclusion, goes further and sets out the facts and said facts show that there was no power in the agents the conclusion must yield to the facts set out.—Birmingham R. R. v. Jordan, 170 Ala. 534, 54 South. 280; Merrill v. Sheffield, 169 Ala. 251, 53 South. 219; Selma St. R. R. v. Campbell, 158 Ala. 445, 48 South. 378. Therefore, if it be admitted, but which is not the fact, that the general averment that the things therein referred to as being within the scope of the agent’s employment related to the things to be done in furtherance of the conspiracy, then the facts as specifically set up would negative such an averment, under the common law, as it is well settled by the decisions of this and most of the courts of the country that an agent of a public carrier has no authority to issue a bill of lading for goods before the same are ■delivered for shipment and that the carrier is not responsible for such unauthorized acts of its agent.—Hutchinson on Carriers, 161; Friedlander v. T. & P. R. R., 130 U. S. 416, 9 Sup. Ct. 570, 32 L. Ed. 991; Jemison v. Birmingham & A. R. Co., 125 Ala. 378, 28 South. 51; Jasper Co. v. K. C. M. & B. R. R. Co., 99 Ala. 416, 14 South. 546, 42 Am. St. Rep. 75. The wrongful act alleged to have been done under the conspiracy, and to which the servant is alleged to have agreed, was the issuance by Knight, Yancey & Co. of documents purporting to be bills of lading of the Louisville & Nashville Bailroad Company, without the company having received any property for transportation thereunder. If the agents of the defendant would not have been acting within the line or scope of their employment had they themselves issued such a document, they would not, of course, have been acting within the line or scope of such employment in attempting to authorize, or in aiding others to do so. Clearly, under the common law, the agents of the defendant could not issue spurious hills of lading so as to bind the principal.

It is true- that section 6136 of the Code of 1907 was enacted to remove, to a great extent, the seeming hardship of the common law, by protecting innocent people who deal with bills of lading issued by agents of carriers, whet-hex’ genuine or not, upon the theory that the carrier and not the innocent person should suffer for the loss on a false bill of lading, when issued by one in its employment with authority to issue such documents.—Jasper Co. v. K. C. M. & B. R. R., 99 Ala. 416, 14 South. 546, 42 Am. St. Rep. 75. The effect of this change, howevei’, was not to make the carrier liable for bills of lading issued by one, though an agent, who had no authority to issue bills of lading. In other words, the prime, if not the sole, purpose of the enactment, was to make the act within the scope of the employment of an agent who was authorized to issue bills of lading, and to counteract the rule of the common law, that the issuance of a spurious bill of lading was not within the scope of the employment of an agent employed only to issue genuine ones.

It would therefore appear that under the law as changed by our statute, in order to fasten liability upon the carrier for the issuance of a false bill of lading, it must have been issued, or authorized, by an agent charged with the duty of issuing such documents; and that the law does not apply to agents who are not so- charged or whose line of employment and duties in no wise pertains to the issuance of such documents. The complaint not having charged that the agents of the defendant were acting in the line or scope of their authority in assenting to the issuance of the bill of lading, or that the issuance of bills of lading, or the authorization of the issuance of same, was within the scope of exxiployment of the agents who conspired with said Knight, Yancey & Co., failed to charge liability against the defendant under the statute as well as under the common law; and the trial court erred in not sustaining the defendant’s demurrer to amend count 5. Indeed, it is questionable if it states a cause of action.

We have dealt with this count of the complaint, upon the only theory upon which it could possibly be regarded as attempting a cause of action against this defendant, but have not been unmindful of the argument in appellee’s briefs, as to the theory upon which it seeks a recovery. Indeed, counsel disclaim any reliance upon a right to recover under either the common law or the statute, for the issuance of a bill of lading by any agent of the company. They say: “In this case we deal, not with the issuance of a bill of lading in a simple transaction, but with the creation of a system of business in which the issuance and sale of the forged bill- of lading was one item, the issuance of the genuine bill upon the delivery of the cotton on the' forged bill was another item, the delivery or the procuring of the delivery of the cotton on the forged bill was another item, and all three were necessary cogs in the machinery which was used in carrying on this system of business, and which finally resulted in the loss, without fault on the part of this plaintiff: and others, of large sums.”

If this is the theory upon Avhich plaintiff sought a recovery, whether sound and actionable or not, such a case is not presented by the only count of the complaint with which Ave can deal. Said count does not charge a series of acts, or a course of conduct, as being the cause of the plaintiff’s injury or damage, and does not aver all three of the acts, Avhich were “necessary cogs in the machinery.” The complaint does not state or cover such a case as is stated or contended for in brief of counsel. As we vieAV the complaint, it simply sets up a conspiracy to-do certain things, and that a bill of lading was falsely issued by Knight, Yancey & Co., Avhich plaintiff bought as an innocent purchaser. It does not charge that the defendant did a series of acts or a single act in furtherance of the system contemplated by the conspiracy, or that á system or general course of conduct was the proximate cause of the plaintiff’s damage. The gravamen of the complaint is the false issuance of one bill of lading by Knight, Yancey & Co., in pursuance of a conspiracy with some agent or agents of the defendant, who were not charged with duties- in connection with the issuance of such bills of lading.

We agree with counsel that the facts as argued present a rather unique case, and show a series of colossal frauds upon the commercial world; but the complaint is not grounded upon the theory argued and contended for in brief of appellee’s counsel.

The judgment of the law and equity court is reversed, and the cause is remanded.

Reversed and remanded.

Mayfield, de Graffenried, and Gardner, JJ., concur.