Birney v. New York & W. Printing Tel. Co.

• Decision Date: 04 June 1862
• Citation: 18 Md. 341
• Parties: JAMES BIRNEY v. NEW YORK & WASHINGTON PRINTING TELEGRAPH COMPANY.
• Court: Maryland Court of Appeals

18 Md. 341

JAMES BIRNEY v. NEW YORK & WASHINGTON PRINTING TELEGRAPH COMPANY.

Court of Appeals of Maryland.

June 4, 1862

Where prayers neither point nor refer to the pleadings, the correctness of their being rejected or granted, depends not upon the state of the pleadings, but upon the evidence to which alone they refer.

Even where the proof is all on one side, the finding of the facts must be left to the jury, but this is not necessary where the case is tried upon admissions made at the bar: the jury may discredit the testimony, but cannot find contrary to the agreement of the parties.

It is the privilege of a party to raise any question of law arising out of the facts, and to demand the opinion of the court distinctly upon it; and the opposite party has the equal privilege of asking an opinion upon additional facts, not embraced in the hypothesis of his adversary's prayer, but not of controlling or modifying that hypothesis.

Where the court cannot grant the entire prayer, as made, though a portion of it in separate, distinct forms, might have been given, it is not error to reject the whole.

A telegraph company is responsible for any loss or injury resulting from its neglect and failure to make any effort to transmit a message, which its agent has received for transmission, and been paid the price demanded therefor.

A telegraph company is not a common carrier, but a bailee performing, through its agents, a work for its employer according to certain rules and regulations, which, under the law, it has a right to make for its government.

A party sending messages by telegraph, is supposed to know, that the engagements of the company are controlled by such rules and regulations, and, in law, engrafts them in his contract of bailment, and is bound by them.

Rules exempting the company from liability for the non-transmission and non-delivery of unrepeated messages, do not apply to a case where no effort is made by the company, or its agents, to put a message on its transit.

APPEAL from the court of Common Pleas.

Action brought, January 8th, 1859, by the appellant against the appellee, for that the defendant is publicly engaged in the business of telegraphing or transmitting messages or despatches from Baltimore to New York, for a price or consideration, and the plaintiff delivered to the defendant on the 10th of November 1858, at its place of business in Baltimore, a certain message or despatch, to be transmitted on that day to the firm of Drake & Carter, in New York, which the defendant received for that purpose, and the plaintiff paid defendant the amount demanded by it for such service, but the defendantutterly and wholly neglected, to send or transmit said message or despatch, whereby the plaintiff has been greatly damaged and injured, and claims $500.Plea that the defendant did not enter into the contract alleged; on which issue was joined.

Exception: By an agreed statement of facts, read in evidence by the plaintiff, it was admitted that the defendant was an incorporated company, carrying on the business of publicly sending, for hire, messages by telegraph from Baltimore to New York, having places of business in both cities, and lines of telegraph extending between them; that its authorized agent received from the plaintiff, at its place of business in Baltimore, on the 10th of November 1858, at 9 o'clock A. M., a message to be sent to Drake and Carter, stock-brokers, in New York, and agents of the plaintiff, ordering them to sell for him, on that day, 100 shares of New York Central Railroad stock, then in their possession, and belonging to the plaintiff; that the plaintiff paid the price charged and demanded for forthwith transmitting this message to New York from Baltimore, which the defendant agreed to do, that the defendant forgot and neglected to send said message or despatch, and it has never been sent; that the difference in price for which said stock was selling in New York on the 10th of November 1858, when it would have been sold if said message had been properly transmitted, and the 15th of November, when the plaintiff arrived in New York, and first learned that the defendant had neglected to send said message, and on which day he sold the same, was $2.50 per share, or $250 on said 100 shares, which sum, the plaintiff thus lost by the defendant's neglecting to send said despatch or message.

The defendant proved by Wm. H. Deets, that he was employed in the office of the defendant on the 10th of November 1858, for the purpose of receiving messages for transmission to New York, and received the message in question from the plaintiff, but does not know whether it was written in the office or not.He further proved, (subject to exception,) that certain terms or rules were set up in the front office of the company on the two side walls, and these terms were offered in evidence.Among them is one informing the public that to provide against mistakes in the transmission of messages, every message of consequence ought to be repeated, and giving the rates of charges for repeating and reporting, and then it adds: " The company will not be liable for any loss or damage, that may ensue by reason of any delay or mistakes in the transmission or delivery, or from non-delivery of unrepeated messages, but only engage to use reasonable efforts to secure the services of competent and reliable employees, so as to have their business transacted in good faith.Nor will the company be responsible for mistakes in the transmission, nor for delay in the transmission or delivery, nor for non-transmission or non-delivery of any repeated message to any extent beyond ten dollars, unless it be insured," and then the rates of insurance are given.The plaintiff neither paid a repeating or insurance price as named in these terms.On cross-examination, this witness proved that the message in question was received by him, at a pigeon hole, immediately in front of the door of the office, and that he did not call the plaintiff's attention to the notice or terms aforesaid, and that nothing took place at the time, except the receipt of the message by witness, and payment by plaintiff of the price charged by the defendant.The plaintiff then offered three prayers.

1st. " On the written statement of facts, read in evidence to the jury, they must find a verdict for the plaintiffs for the amount admitted therein to have been lost by the plaintiff, by failure of defendant to send plaintiff's dispatch to New York as therein stated."

2nd.This prayer embodies the first, and adds:--" Unless they further find that there was a printed notice set up in defendant's office, notifying persons sending messages, that an insurance price would be demanded for the purpose of making defendant liable for the non-transmission of a message, and also find that the contents of said notice were known to the plaintiff."

3rd.This prayer also embodies the first, and adds:--" Even although the jury should find from the evidence, that there was a public notice set up in defendant's office, notifying persons sending messages, that an insurance price would be demanded for the purpose of making the defendant liable for the non-transmission of messages, unless they further find that plaintiff's attention was called thereto by the agent or agents of defendant."

The defendant asked the court to instruct the jury, that the plaintiff is not entitled to recover if they shall believe from the testimony, that the notice read in evidence, viz: that the New York and Washington Telegraph Company would not be responsible for mistakes in the transmission, nor for delay in the transmission or delivery, nor for non-transmission or non-delivery of unrepeated messages, was prominently and conspicuously displayed in the office of said company, so that the plaintiff in this action, or his agent, saw, or might have seen, the same, and that the said notice contained the terms on which the said company receive and transmit the same, and shall further believe that the message in this case was neither repeated nor insured.

The court, (MARSHALL, J.,) granted the defendant's prayer, and refused those of the plaintiff, and to this ruling the plaintiff excepted, and the verdict and judgment being against him, appealed.

The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.

Benj.F. Horwitz, for the appellant.

1st.By the agreed statement of facts it is admitted, that a specific legal contract, (independent of the terms or rules set up in the defendant's office,) for the performance of a particular act by the defendant, was entered into between the parties; that the plaintiff paid the defendant the consideration demanded for such performance; that the defendant entirely failed to comply with its contract, and that by reason of such gross negligence the plaintiff lost the sum of $250.If there were no other facts in the case there could be but one opinion as to the right of the plaintiff to recover the sum, admitted to have been so lost, and the statement of such a proposition is all that can be required by a legal mind.The defendant, however, seeks to avoid the responsibility arising from this special contract, by proving that certain terms, or rules, were set up on the two side walls of its office, though it is not pretended the plaintiff had any notice, whatever, of these terms or rules.It is submitted, that this cannot be law.The only persons who have sought to avoid responsibility by means of a notice, of a general notice of this kind, are common carriers, whose duties and obligations are, in many respects, and especially in their public nature, similar to those of telegraph companies, but the most liberal of the cases, as to the law in reference to them,...