Peterson v. Western Union Telegraph Co.
| Decision Date | 22 April 1898 |
| Docket Number | 11,109 - (47) |
| Citation | 74 N.W. 1022,72 Minn. 41 |
| Parties | SAMUEL D. PETERSON v. WESTERN UNION TELEGRAPH COMPANY |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Brown county, Webber, J., denying its motion for a new trial after a verdict for $1,800 in favor of plaintiff. Reversed.
Libel -- Transmission by Telegraph -- Publication.
A written message, alleged to be libelous, was delivered to defendant's operator at New Ulm, and by him transmitted by sound over the wires to the operator at St. Paul, to be by him reduced to writing and delivered to the plaintiff. Held that this constituted a publication of the libel.
Libel -- Negligence -- Exemplary Damages -- Charge to Jury.
Mere negligence, unless so gross as to amount to positive bad faith, is not a ground for awarding punitive damages. Hence an instruction to the effect that the jury might award exemplary damages, if they found that the defendant was negligent in employing the operator who transmitted the message, or in failing to adopt proper rules to prevent the transmission of libelous messages, is erroneous.
Ferguson & Kneeland, for appellant.
The broad distinction between slander and libel is that slander is the communication of defamatory matter by transitory means, like the human voice, while libel is the communication of defamatory matter by means more or less permanent, as written language, pictures and caricatures. In this case transmission of the message by telegraph over the Western Union line was wholly by sound. To the receiving operator the clicking of the instrument is a voice, intelligible like human speech. It is absolutely the same as if the message were spoken into his ear over a telephone wire. It is by his sense of hearing and not of sight that he learns the words of the message. The written message he never sees. So that if the communication to him by his fellow operator is a publication, the nature of the publication is such as to make it slander and not libel. Townshend, S. & L. §§ 18 98, 99, 103, 108; Cooley, Torts, 193; Odger, L. & S. 22.
It follows that the plaintiff has no cause of action because: (1) The words complained of are not actionable unless published in writing. Newell, S. & L. 84; Odger, L. & S. 2; Townshend, S. & L. § 153a; Richmond v. Post, 69 Minn. 457; and (2) a corporation cannot be liable for slander. Townshend, S. & L. § 265; Odger, L. & S. 368; Newell, S. & L. 361; Gilbert v. Crystal, 80 Ga. 284; Behre v. National, 100 Ga. 213; 2 Morawetz, Priv. Corp. § 727.
Furthermore such a publication, if it is a publication, is privileged in the absence of express malice. A telegraph company is bound by the common law, as well as by statute, to transmit all lawful messages. It can refuse only at its peril. If it makes a mistake in refusing to transmit a message on the ground that it is unlawful, the company is liable in damages. Gray v. Western, 87 Ga. 350; Western v. Ferguson, 57 Ind. 495; G.S. 1894, § 2635; Primrose v. Western, 154 U.S. 1. The transmission of this message was prima facie privileged. It was privileged unless actually malicious. The publication fairly made by a person in the discharge of some public or private duty, whether legal or moral, comes within the class of privileged communications. Toogood v. Spyring, 1 C.M. & R. 181; Marks v. Baker, 28 Minn. 162; Moore v. Butler, 48 N.H. 161; Aldrich v. Press, 9 Minn. 123 (133); Simmons v. Holster, 13 Minn. 232 (249).
The question of actual malice and punitive damages should not have been submitted to the jury. Even if in sending the telegram the operator, although not legally excusable, was acting under a mistaken sense of duty, the case is at most one only for compensatory and not for vindictive damages. Wiggin v. Coffin, 3 Story, 1. Punitive damages are not to be inflicted except for actual malice. Hoffman v. Northern, 45 Minn. 53. And the malice of agent is not imputable to principal. Eviston v. Cramer, 57 Wis. 570; Wardrobe v. California, 7 Cal. 118; Hill v. New Orleans, 11 La. An. 292; Detroit v. McArthur, 16 Mich. 447; Sedgwick, Dam. § 523.
S. L. Pierce, for respondent.
This case was here on a former appeal (65 Minn. 18, 67 N.W. 646), the opinion in which may be referred to for a full statement of the facts. It was there held that the forwarding of the alleged libelous message by the defendant over its wires to its operator at St. Paul constituted a publication; that the message was on its face fairly susceptible of a libelous meaning; also that the evidence was sufficient to justify the jury in finding that defendant's operator published or transmitted the message maliciously, and not in good faith. If there is any difference between the evidence on this last point on the first trial and that adduced on the last trial, the latter is the stronger against the defendant.
The message was delivered in writing to the operator at New Ulm, and by him transmitted over the wires to the operator at St. Paul, to be by him reduced to writing and delivered to the plaintiff, which was done. The fact affirmatively appears on the second trial that the message was transmitted over the wires by sound, and the point is now made that the mode of communication was oral, and not written, and therefore there was no publication of a libel; the distinction between slander and libel being that the former is oral defamation by spoken words, while the latter consists of a publication by writing, printing, pictures, or other durable mode. The alleged materiality of the point lies in the facts that, as defendant claims, the words complained of are not actionable in themselves unless published in writing, and that a corporation cannot be liable for slander.
This point was not raised or considered on the former appeal. We are of the opinion that it is without merit. Whether the means employed by the operator at New Ulm in dictating or communicating the contents of the message to the operator in St. Paul consisted of sounds representing letters, or dots or dashes representing the same thing, can make no difference. In either case, the purpose and result would be the same, viz. the transmission and copying in written form the contents of the written message in the hands of the operator in New Ulm. The result was to put the message in the hands of the St. Paul operator in written, durable form, which he could read and understand as effectually as if the original had been placed in his possession. Words communicated for such an accomplished purpose "have an existence per se off the tongue."
When the means of reproducing the contents of a writing are by repeating its contents orally to another, to enable him to put it into writing, and the person to whom it is repeated reduces it to writing, the writing thus produced does not depend for its identification on the oral utterances of the person who reads or repeats, but on the writing itself, which is thus communicated to the person who reduces it to writing; and it can make no difference whether the contents of the writing are communicated by sound over telegraph wires by one operator to another or by a person in audible words to an amanuensis at his side. See Pullman v. Hill [1891] 1 Q.B. Div. 524; McCoombs v Tuttle, 5 Blackf. 431; Adams v. Lawson, 17 Grat. 250. As long ago as Lamb's Case, 9 Coke, 59a, it was held that where one knowing a writing to be a...
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