Tobin v. Western Union Telegraph Co.

• Decision Date: 04 January 1892
• Docket Number: 12
• Citation: 146 Pa. 375,23 A. 324
• Parties: D. S. TOBIN v. W.U. TELEGRAPH CO
• Court: Pennsylvania Supreme Court

23 A. 324

146 Pa. 375

D. S. TOBIN v. W.U. TELEGRAPH CO

No. 12

Supreme Court of Pennsylvania

January 4, 1892

Argued October 28, 1891

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY.

No. 12 October Term 1890, Sup. Ct.; court below, No. 540 October Term 1889, C.P. No. 2.

Returnable to the first Monday of October, 1889, Daniel S. Tobin brought trespass against the Western Union Telegraph Company. Issue.

At the trial, on October 24, 1890, the plaintiff testified that he resided at McKeesport, Pa., and had a sister living in Long Island City, N.Y., on the western end of Long Island; that his sister had disappeared some time during the first week of May, 1889, and he had gone to New York to search for her that, fearing she had been drowned, he left word at the morgues in New York city, Jersey City, Brooklyn and Staten Island, to telegraph him immediately in case his sister's body should be found; that he returned to McKeesport, and a few days thereafter, to wit, on May 12th, the following message was delivered to him on the street by the defendant company:

"May 12, 1889. Quarantine, S.C. (I.) To DANIEL S. COBIN McKeesport, Pa. Found the body of Mary E. Cobin. Coroner HUGHES, Clifton, S.C. (I.)"

In the message as delivered, the C. was written over the I. The blank upon which it was written contained the following conditions:

"This company transmits and delivers messages only on conditions limiting its liability, which have been assented to by the sender of the following message.

"Errors can be guarded against only by repeating a message back to the sending station for comparison, and the company will not hold itself liable for errors or delays in transmission or delivery of unrepeated messages, beyond the amount of tolls paid thereon; nor in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission.

"This is an unrepeated message, and is delivered by request of the sender, under the conditions named above."

The plaintiff testified that he was uncertain whether the message meant Staten Island or South Carolina; that, being Sunday the telegraph office was open only between eight and ten o'clock, A.M. and four and six o'clock, P.M.; that being in doubt whence the message came, he went to the office to inquire, but finding it closed he showed the message to a clerk in a drug store in the same building, who informed him that it was South Carolina; that the next morning by an early train he started for Clifton, South Carolina, and on his return from that state he found that his sister's body had been recovered at Clifton, Staten Island. Evidence was given as to expenses of travel, etc.

At the close of the testimony, the court, EWING, P.J., charged the jury in part as follows:

Now, there is no absolute evidence that this was not sent from Clifton, South Carolina, but there is circumstantial evidence from which the jury may or may not find that it was not, namely: it appears that Clifton, South Carolina, if there is such a place, is away in the mountainous region, in the interior and not on the sea coast; and that there is a Clifton on Staten Island, New York, from which Mr. Tobin received the communication in relation to the body of his sister thereafter from the coroner, and there is circumstantial evidence, which we think the jury are entitled to pass on, as to whether or not any such message ever was sent from South Carolina, or even from Staten Island; whether there was any paper left that authorized or justified the delivering of a message to Mr. Tobin at McKeesport, as from coroner Hughes, in Clifton, South Carolina.

I have said in your presence, in answer to counsel for defendant, and I repeat it here that it may go on record, that the defendant presumably has in its possession the paper that was delivered to it from which to send the telegram, which it could have produced readily. It is true, the other side could have had it produced. It would have been much more satisfactory, if one side or the other had done so. But we do not think the case is free from evidence that no message was ever delivered to the Western Union Telegraph Co., equivalent to the one delivered to Mr. Tobin, if he received that message, which he says he did, and it is for the jury to determine.

[Again; it is claimed that on the face of the telegram, or paper sent to him or delivered to him, it is said that the company does not guarantee the correctness of the message unless it be repeated. It is not necessary for us to say whether or not that is valid. I do not understand any such provision on the face of their paper, or the copy delivered to the party, will save them from the consequences of their own negligence. They are to be treated as common carriers in that way.] . . . .

There is another branch of the case, and it is a question for the jury, -- the court will not undertake to pass on it; and that is as to whether or not the plaintiff himself exercised reasonable care under the circumstances in starting off on this telegram that he says he received, which on its face showed an erasure, at least in one of the places, showed that it had been changed from "S.I." to "S.C." It occurs twice, and it is plain in the place from which it professes to be sent that there has been a change by somebody on the face of this paper in evidence from "S.I." to "S.C." In the lower part, where it says "Coroner Hughes, Clifton, S.C.," it is not so plain that there has been any change, although I think I would say in looking at it that there has been, but a casual observer might pass it...