Western Union Telegraph Co. v. Citizens' Bank

Hart, J. (after stating the facts). With regard to the duties of telegraph companies in the case of a forged message, it is generally held that, in the absence of notice of facts or circumstances which would awaken inquiry and arouse suspicion in the mind of a person of ordinary prudence in a like situation regarding the authority of the person who presents a message for transmission to send it, the exercise by a telegraph company of reasonable care to receive and transmit genuine and authorized messages only does not require it to investigate or ascertain the identity or authority to send it of the person who. tenders h message for transmission, whether it is in writing or spoken directly to the operator, or is communicated to him by telephone. 26 R. C. L., p. 557, § 62. This is conceded to be the law by both parties, and the court instructed the jury in accordance therewith. It is insisted, however, by the defendant that, under the evidence given by its operator, the court should have directed a verdict in its favor. On the other hand, the judgment is sought to be upheld on the ground that the burden of proof was upon the defendant, and for that reason the question was properly a jury one, and the court did not err in submitting the issue of defendant’s negligence to the jury. When the plaintiffs proved the delivery of the message, the loss resulting from reliance and action on it, without negligence on their part, they made out a case against the telegraph company, and the burden of proof .was cast upon it to show that it was not guilty of negligence in the premises. The reason is that the means of showing that there was no negligence on the part of the telegraph company was within the exclusive possession of the company. To require the'plaintiff to show negligence after having made out a prima facie case would in many cases enable the company to evade a just liability. Western Union Tel. Co. v. Short, 53 Ark. 434, and Little Rock & Fort Smith Tel. Co. v. Davis, 41 Ark. 79. Under a state of facts in all essential respects similar to the case at bar the United States Circuit Court of Appeals, Eighth Circuit, in Bank of Havelock v. Western Union Tel. Co., 141 Fed. Rep. 522, 5 Ann. Cas. 515, held that a verdict was properly directed in favor of the telegraph company. Judge Sanborn in discussing the question said: “The great purpose of telegraphy is the quick transmission of messages from senders to addressees. In the conduct of this business all other considerations are subordinate. The telephone furnishes the most speedy and convenient means of communicating these messages from the senders to the offices of the telegraph companies, and from these offices to the addressees of the messages. For this reason its use for this purpose has become general throughout the land. The persons who operate the telephones are not generally the business men or officers of corporations in whom the authority to send the telegrams is vested in the first instance, but young men and women to whom this authority is delegated by parol, frequently through several intermediaries. An inquiry and decision by telegraph operators of the identity and authority of those who speak the messages over the telephone are utterly incompatible with their rapid receipt and transmission, and a new duty to investigate and determine this authority before sending the messages, a duty which would be so deleterious to the prime object of the business, of telegraphy, ought not to be imposed without great hesitation. It is true that the use of new inventions often creates new rights and imposes new duties. But the duty was never imposed upon telegraph companies before the use of telephones to ascertain the genuineness of the signatures to written messages, and the authority of those who presented them to direct their transmission, and no reason occurs to us why a duty of this nature should now be imposed upon them in receiving messages by telephone.” It appears from the record in the present case that the telegraph company had its office at the railroad station about one mile from the business section of the town and was in the habit of receiving messages over the telephone from its customers to be transmitted over the wires of the company to the point of destination. The Ozark Savings Bank was one of its customers, and was in the habit of sending messages in that way. When messages were telephoned from the business part of the town in which the Ozark Savings Bank was situated to the Ozark station, an additional charge of ten cents was made. When a message was delivered to the company at the station, a mark was placed on it to indicate the fact, and the absence of such a mark indicated that the message was sent in by telephone to the station. The trial was had in the circuit court nearly two years after the transaction in question. The operator testified that he did not have much personal recollection about the matter. The original telegram was introduced in evidence and was in the operator’s handwriting. This indicated that he had received it over the telephone. The absence of a charge mark from the- message also indicated that it was received over the telephone. It is insisted that this testimony should not be considered as overcoming the prima facie case of negligence because the operator had but little personal recollection of the matter. We can not agree with counsel in this contention. It was the duty of the operator to reduce to writing messages sent in over the telephone for transmission by the company. This the operator did in the present case. His -duties also required him to put a mark on messages delivered at the station, so that the extra charge of ten cents for telephone transmission would not be made. The absence of such a mark showed that the message had been sent in by telephone and that the ten cents additional should be charged against the sender of the message. The operator testified that he had only been in the service of the company at Ozark, Missouri, a short time before the message in question was sent and that he was not familiar with the voice of the cashier of the bank or other officer who was in the habit of sending messages over the telephone for transmission over the wires of the telegraph company. The operator stated that, if „ there had been any circumstance calculated to have aroused his suspicions at the time that the message was not genuine, he would have remembered it and would probably have made an investigation of it. He testified that the party sending the message stated that it was from the Ozark Savings Bank, and that, if he had not done so, he would not have received the message for transmission to the point of -destination. This testimony is clear and consistent in itself and shows an entire absence of suspicious facts or circumstances which would require action on the part of the telegraph company. While the operator did not recollect in detail the transaction in question, he stated positively that if there had been any suspicious circumstances attending the transaction he would have remembered that fact. This is natural. He could not be expected to carry in his mind all the details relating to the receipt and transmission of every message, but, knowing that it was his duty to investigate any case where the circumstances were calculated to arouse a suspicion that the message was not genuine, he could carry in his mind that he always performed that duty. The question was not whether he made an investigation, but whether anything happened in connection with the transaction that required him to make an investigation. The operator had been in the habit of receiving such messages from the officers of the bank, and, in the absence of suspicious facts or circumstances in connection with the matter, the telegraph company was not guilty of any negligence and was not liable to the plaintiffs. There is nothing in the record to indicate that the message was not genuine. The business of transmitting messages over telephone and telegraph wires is very important, and g-ood faith and diligence in the discharge of the duties of such companies are essential to the interest of the public. Sound public policy, however, forbids any recovery in cases of this sort where there are no facts or circumstances in the record calculated to arouse the suspicion of the operator that the message was not genuine. There is nothing in the case of Western Union Tel. Co. v. Totten, 141 Fed. 533, that cast any doubt upon the rule laid down. On the other hand, the opinion in that case was also written by Judge Sanborn and was delivered on the same day as the opinion above referred to. In the Totten case Barnes had been in the habit of sending messages to the telegraph company by telephone relative to the business of the bank. The message in question stated that the bank would honor the drafts of Barnes for three cars of stock. The evidence was conflicting upon the question of whether the bankers were informed by the telegraph company before these messages were sent that Barnes was sending telegrams in the name of the bank. The operator knew that Barnes had been sending messages in the name of the bank about the business of Barnes, but the testimony was conflicting as to whether the bank knew that fact. For that reason the court held that the question of whether or not the operator exercised reasonable care to receive and transmit a genuine message was for the jury. It follows that the court erred in not directing a verdict for the defendant and for that error the judgment must be reversed and the cause remanded for a new trial.