Grisham v. Western Union Telegraph Co.

FERRISS, J. Suit for libel by plaintiffs, husband and wife, because of the sending over the wires of the defendant Telegraph Company, by its agent, in Lancaster, Schuyler county, Missouri, the following telegram, which it is claimed libeled the wife, Mrs. Nettie Grisham: 7 — 5—1907. To Silver Burdett & Company, 378 Wabash Ave., Chicago. Board here sold out. Memphis Saturday morning Dockery Hotel Kirksville Saturday night. • W. H. M. — 488 — The case was tried before a. jury. At tlie close of plaintiffs ’ evidence the court sustained a demurrer, and directed a verdict for defendants. Plaintiffs appeal. The facts disclosed by the evidence áre as follows: The plaintiff, Nettie Grisham, was a member of the school board of Schuyler county. Under the Act of 1907 this board cob stitutes a Text-Book Commission. This commission advertised in two county papers a notice, with this caption, “Notice to Publishers of School Text-Books,” to the effect that.bids would be received, on July 5th following, for school books for use during the ensuing year in the public schools of Schuyler county. This notice specified the subjects for which text-books were desired. The notice was signed: “Mrs. Nettie H. Grisham, president; J. F. Botts, secretary.” There appeared before the board, at the meeting held July 5, agents for several publishers, among them W. H. Maddock, for the Silver Burdett Book Company, Chicago. While the board was in session Mrs. Grisham telephoned several times to defendant'Beer, who was the local operator for the defendant Telegraph Company, to know whether there were any packages for herself or Mr. Bótts; that the board was busy at work and wanted the books from Ginn & Co., but did not advise him that the board was sitting as a text-book commission. Beer was also the express, agent in Lancaster. Mrs. Grisham had merely a casual acquaintance with Beer. Copies of the papers containing the advertisements had been sent to Beer by the publishers, under the terms of a contract covering an advertisement for the railroad in such papers, to enable Beer, who was also station agent, to cut out same and send to the company for checking purposes. — 489 — From the testimony of E. C. Hickey, one of the book agents in attendance at Lancaster on that day, it appears that the board decided to postpone any announcement on the bids for a -week. This witness testified : “I left Lancaster that day on the ‘Q’ train going east, shortly after six o’clock. I was at the depot, I would guess, twenty minutes before the train arrived. There were six book men representing book companies at the depot at that time besides myself. Q. Was the question of the adoption of books by the Schuyler County Board of Education discussed among the book men at the depot at that time? A. There seemed to be quite an interesting discussion among the agents, myself included, at the east end of the depot, but I was not near enough to hear more than an occasional word. Q. Do you know whether or not there was any discussion in the waiting-room of the depot in reference to the adoption of the books? A. Mr. Maddock and Mr. Chapman were engaged in a low conversation regarding the matter, but the purport of their remarks I at no time caught the full meaning of. They were apparently conferring over the sending of a telegram. The station agent at that time was engaged at the key board, sending or receiving a message. Mr. W. H. Maddock prepared and delivered to the station agent a telegram. I saw him write it. After that I heard him say to Mr. Chapman: ‘Chap, will this do all right?’ to which Mr. Chapman answered, ‘That’s the proper stunt.’ He then walked into the ticket room, laid the telegram clown at the right side of the operator, who was seated at his desk. When he got the operator’s attention, he asked him the cost of sending the message, also stating that'he was anxious to get the message off at once. When Mr. Maddock wrote the telegram he was standing at the window in the waiting-room. I saw him writing the telegram, but had not noticed the blank before. The telegram was — 490 — written on the regular form of blank furnished by the Telegraph Company. Mr. Maddock then paid the agent for sending the telegram. I read the telegram after it was written by Mr. Maddock. I read it twice. When I read it the first time it was lying on the operator’s desk before he sent it. When I read it the second time it was in the same position, while I suppose it was being sent. When I read it the first time I had stepped into the ticket office, ostensibly to get a ticket; in reality, to see the contents of the message. When I read it the second time, I was standing on the depot platform before an open window and in front of the operator’s desk. The operator was present. Q. State if you heard any further conversation between the agent and Mr. Maddock-other than you have stated? A. But a query, ‘Will that message get through all right tonight?’ to which the agent answered, ‘I think it will.’ I did not hear any other conversation between the agent and the representatives of the book companies. The agent was at his desk when Mr. Maddock wrote the telegram.” Mr. Botts, a member of the board, testified that he sometimes got books by express, addressed to him as a member of the board of education. Plaintiffs offered to prove that Maddock made “insinuating remarks” on the way to the depot and at the hotel; objection to which was sustained. Witness Hickey was asked what construction he put upon the message; objection to which question was sustained. Another witness was asked this question: “Was it not currently reported around here in town, after these book agents left, that the board had sold out?” Objection sustained. To all of these rulings plaintiffs excepted. The court instructed the jury to find for' each defendant. The theory of the plaintiffs appears from this extract taken from their brief: — 491 — “Said Beer well knew that said telegram referred to and meant the county board of education, and he well knew that Nettie Grisham, one of the plaintiffs, was a member of that board. He knew that the language of said telegram, to-wit, ‘Board here sold out,’ meant that said board had been bribed. He knew that Maddock meant .to charge the board with being bribed. He knew that Silver, Burdett & Co., the great book concern of Chicago, understood that said telegram meant to charge the board here with being bribed. All of this he knew, and well knew it before he sent said telegram.” The proof utterly fails to establish the foregoing allegations, with the possible exception that Beer did know that Nettie Grisham was a member of the school board. There is no proof that Beer knew that the board was in session that day as a text-book commission for the purpose of receiving bids, or that any agents appeared before that commission. It cannot be presumed that he read in the newspaper a notice addressed to publishers of text-books. There is no proof that he knew that the expression “board here sold out” meant that the school board had been bribed. There is no evidence of any communication to him, or of any knowledge conveyed to him in any manner, aside from the telegram itself, which would explain the meaning of these words. If there was ambiguity in the language, it was still his duty to send the message without investigation. Under the law it is the duty of the agent to send the message, if it is expressed in decent language, on payment or tender of the charge. [W. U. Tel. Co. v. Ferguson, 57 Ind. 495; Gray v. W. U. Tel. Co., 87 Ga. 350; Commonwealth v. W. U. Tel. Co., 112 Ky. 355.] Section 3330, Revised Statutes 1909, makes it the duty of a telegraph company to receive a dispatch from any individual, and, on payment of the usual charge, — 492 — to transmit ancl deliver it to the addressee promptly, impartially and in good faith, under a penalty of $300 for every neglect or refusal so to do. Section 3334 provides a penalty of $50 for disclosing the contents of a message to any person other than the addressee. Section 4810 provides that any employee of a telegraph company who willfully refuses or neglects to transmit or deliver a message, or discloses the contents except to a court of justice >or the addressee, shall be deemed guilty of a misdemeanor, and punished (section 4630) by imprisonment in the county jail not exceeding one year, or by fine not exceeding $500, or by both such fine and imprisonment. These statutes would not compel the sending- of a telegram that was manifestly libelous. [Nye v. W. U. Tel. Co., 104 Fed. 628; Peterson v. Tel. Co., 65 Minn. 18.] But unless it is manifestly a libel the operator must send it. Any doubt or ambiguity is to be solved in favor of the message. On this point the Supreme Court of Georgia says: £ £ On no other rule would it be practicable for the telegraph companies to perform their legitimate functions as servants of the general public. They could not wait to question and investigate the motives of those who offer ambiguous. dispatches for transmission.” [Gray v. W. U. Tel. Co., supra.] Counsel for plaintiffs have furnished us a voluminous brief of the law of libel, presenting fairly and fully all phases of the subject, with authorities cited. Appellants, in their brief, state the law as follows (Italics are theirs): “Now then, let us see what the rules are that are laid down by the law that makes the defendants liable. In the case of Nye v. Western Union Telegraph Company, 104 Fed. 628, the court lays down the rule as follows: ‘Where the message presented to the receiving clerk of the telegraph company for transmission is in language such that a person of ordinary — 493 — intelligence, knowing nothing of the parties or the circumstances, would not necessarily conclude that its purpose was defamation, it is his duty to send it, and for the performance of such duty the company incurs no liability. ’ “In the case of Peterson v. Telegraph Company, 65 Minn. 18, the court says: ‘Where the proffered message is not manifestly a libel, or susceptible' of a libelous meaning, on its face, and is forwarded in good faith by the operator, the defendant cannot be held to have maliciously published a libel, although the message subsequently proves to be such in fact. In such a case the operator cannot wait to consult a lawyer, or forward the message to the principal office for instructions. He must decide promptly, and forward the message without delay, if it is a proper one, and for any honest error of judgment in the premises the telegraph company cannot be held responsible. But where the message, on its face, is clearly susceptible of a libelous meaning (and this one was, 209 Mo. 79), is not signed by any responsible person, and there is no reason to believe that it is a cipher message, and it is forwarded under such circumstances as to warrant the jury in finding that the operator, in sending the message, was negligent or wanting in good faith in the premises, the company may be held to have maliciously published the libel. A publication under such circumstances is not privileged. ’ ' A telegram cannot be privileged because it passes through the hands of unprivileged persons.” Measured by the foregoing rules, it is clear that the circuit court committed no error in sustaining a demurrer to the evidence. Here is the situation: The defendant Beer is sitting at his table, working the telegraph keys. A stranger steps up and lays down a telegram, written on the usual blank., without punctuation. The original mes — 494 — sage was offered in evidence, and is copied into the record thus: The sender asks and pays the price of service, and asks further whether there can he prompt delivery. Beer, so far as the record discloses, heard no conversation before the message was handed to him, knew nothing about a meeting of the Text-Book Commission, and did not know that the sender was a hook agent. He had no knowledge of any kind about the meaning of the message, save such as he would gain from the telegram itself. There is nothing in the language of the message, unexplained, and disconnected from extrinsic facts, to even suggest a libelous meaning. It might have one of several meanings, depending on the punctuation. It was not the duty of the operator to study this telegram to try to determine — 495 — its meaning. A large proportion of the messages that pass through his hands are more or less obscure. His first duty is prompt service. The law does not require him to look for a meaning not manifest on the face of the telegram. There is nothing in the record to challenge the good faith of Beer, and nothing to impute knowledge to him that the message referred to the board of education or any member thereof. There was no reversible error in the rulings on the admission of evidence. The judgment is affirmed. Kennish, P. J., and Broion, J., concur.