Western Union Tel. Co. v. Stevenson

Opinion, Mr. Justice Clark : The defendant, C. P. Stevenson, at the time the matters involved in this suit occurred, was a member of the Bradford oil exchange, and was engaged in buying and selling oil on his — 453 — own account and as a broker for others. The Western Union Telegraph Company, for a certain stipulated sum per month, agreed to furnish him accurate quotations of the price of oil from the exchanges in New York and Oil City. The oil market, being exceedingly sensitive, was subject to the most frequent, indeed almost momentary, changes ; and these changes, it would seem, varied slightly in the various markets, so that a person might at times, by carefully noting the quotations, buy in' one market and sell in another. Transactions in the exchange were very rapid, and were noted generally upon mere memoranda until the close of the daj^’s business. Success in buying oil in one market, to sell in another at a profit, therefore, rested wholly in the accuracy of these quotations upon which the dealer is necessarily obliged to depend. Acting upon these quotations the defendant had various transactions in the purchase and sale of oil, which were conducted by telegrams transmitted over the plaintiff’s lines, for which telegrams he paid or agreed to pay at certain specified rates. In establishing his set-off, the defendant certainly had a right to show what quotations were given him by the company from the New York and Oil City exchanges, and what he did relying upon their accuracy; that he dictated certain messages for transmission over the company’s lines, directing the purchase and sale of oil by his agents, and received from the operators of the company certain messages in reply. The correspondence was notice to the company that the defendant acted upon the quotations given. When the defendant says that he bought or sold a certain number of barrels of oil in Oil City or New York, he states that he was not present in those places at the time, but that he directed such purchase or sale by telegram over the company’s wires. What he speaks of doing in Oil City or New York, he admits that he merely directed to be done; but he afterwards states that he knows what he directed to be done was done, for the oil bought or sold was actually delivered, the various transactions settled, and the money received or paid out in accordance with his directions. The testimony of the agents who- effected each of the several sales and purchases of oil, or of those with whom the agents dealt, would doubtless have afforded more direct proof of the fact, but it would have been proof of the same — 454 — grade offered. The defendant testified to what he personally knew, and of which his agents were probably ignorant; he testified to the consummation of the contracts which his agents reported through the plaintiff, they had made. In requiring the production of the best evidence applicable to each particular fact, it is meant that no evidence shall be received which is merely substitutionary in its nature, so long as the original evidence can be had. The rule excludes only that evidence which itself indicates the existence of more original sources of information; but where there is no substitution of evidence, but only a selection of weaker instead of stronger proofs, or an omission to supply all the proofs capable of being produced, the rule is not impinged: Greenleaf, 82. The warden of a penitentiary would perhaps be able to give the strongest proof that a person had been, at a particular time, a convict imprisoned in the penitentiary, as he keeps a registry in which is noted the exact time of the admission and discharge of the convict; but the fact may be shown by any other competent proof: Howser v. Commonwealth, 51 Pa. 332. The date of a birth, or death, or of a marriage could best be established by a person present at the event, but any other legal proof is admissible for the purpose. Handwriting may be proved by another, without calling the writer; or a sale of oil or of any other commodity may be shown by the acts or declarations of the parties, although a witness may have been actually present and fully conversant with the whole transaction. As between living witnesses, one is not to be excluded because another had a better opportunity of knowing the fact alleged and attempted to be shown. We are of opinion, therefore, that the evidence of the defendant, although perhaps not the strongest proof, was sufficient to send the case to the jury, on the questions raised by the defence. The defendant alleges, as the first matter of the defence to the plaintiff’s claim, by way of set-off, that on the morning of the 8th of July, 1885, he had on hand about 97,000 barrels of oil; that the market at first advanced, and he bought 40,000 more; that the market then indicated a break, and he gave to the company a verbal message to his agent at Oil City, to sell 50,000 barrels at 97|; that the company failed to send the message as directed, but instead negligently sent a message to the — 455 — agent to buy 50,000 at that price; the market price being about 97 to 97-¿. He says he called the company’s attention to the error at the time, and that his actual loss in the transaction was $178.75. Thatthe order dictated to the messenger was an order to sell and not to buy, is established by the verdict of the jury, and the case must be considered upon the assumption of this fact. As against this claim of the defendant, the plaintiff interposes the rule of the company printed at the head of their message blanks, to the effect that “ the company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same,” etc. That the company may make reasonable rules, not inconsistent with the public good, affecting the measure of their responsibility in the ordinary course of telegraphy, is settled in Passmore v. Telegraph Co., 78 Pa. 239. In that case, this court held, adopting the language of Judge Hare, that the rule or regulation now in question was not so far contrary to private interests or the public good as to justify a court of justice in pronouncing it invalid. “ A railway, telegraph, or other company,” says the learned judge, “ charged with a duty which concerns the public interest, cannot screen themselves from liability for negligence; but they may prescribe rules calculated to insure safety, and diminish the loss, in the event of accident, and declare, if these are not observed, that the injured party shall be considered in default and precluded by the doctrine of contributory negligence.” In the case at bar, however, the ordinary blanks upon which these regulations and restrictions were printed were not used, and the manner of conducting the business was somewhat peculiar. The great number and variety of the transactions, and the rapidity with which they were necessarily conducted, gave occasion for a large amount of telegraphic communication of a complex character. Momentary changes in the market demanded the utmost dispatch in telegraphic communication; written messages were dispensed with in the business of the exchange. All the messages were given to the operator verbally; not one in a thousand was written. The members of the exchange, standing about the ring, whispered the messages they wished to send into the ear of a messenger boy employed — 456 — by the company, and he communicated the message to the operator. For a part of the time, they were conveyed through a speaking tube from the defendant’s room to the ear of the operator. The exigencies of the business were such as to require that the usual methods of procedure should be dispensed with; there was not time to write the messages. The company would appear to have undertaken to transmit these messages correctly without reducing them to writing, either at the place of reception or delivery; the company received them orally and delivered them orally. The business, as it was conducted in the exchange, compared with the general and ordinary business of the company, was special and peculiar, and it was a question for the jury whether or not, under the circumstances, the company, by dispensing with the use of the blanks, did not intend to relieve their patrons from the stipulations contained therein. Such an inference might fairly be drawn from the extraordinary manner in which the business was conducted. We cannot say there was no evidence to justify such an inference. If there was a rule of the company by which its responsibility for the accuracy of messages transmitted over its lines was restricted to such as were repeated, and that any claim for damages must be made in writing within sixty days, the defendant was bound by such rules, if he had any knowledge of them, and they had not been waived or dispensed with by the company in its dealings with the defendant. These were questions of fact which were properly submitted to the-jury. The defendant further claims damages sustained by reason of a misquotation of the market at Oil City. On August 3, 1885, oil at Oil City was quoted to the defendant at 99 and a fraction. Relying upon the accuracy of this quotation, the defendant ordered his agent at Oil City to sell 90,000 barrels. It turned out, however, that the quotation furnished was inaccurate, and the loss was $713.35. As the company had contracted to furnish the defendant the quotations of the New York and Oil City markets, it was bound to furnish them with accuracy, and the defendant was justified in relying upon them. The questions bearing upon this branch of the case have already been considered, and we do not wish to repeat what has been said. — 457 — We think the learned judge of the court below was right in his instructions to the jury, and the Judgment is affirmed.