State Bank of Commerce of Clayton v. Western Union Tel. Co.

• Decision Date: 14 July 1914
• Docket Number: No. 1653.,1653.
• Citation: 19 N.M. 211,142 P. 156
• Parties: STATE BANK OF COMMERCE OF CLAYTONv.WESTERN UNION TELEGRAPH CO.
• Court: New Mexico Supreme Court

19 N.M. 211

142 P. 156

STATE BANK OF COMMERCE OF CLAYTON

v.WESTERN UNION TELEGRAPH CO.

No. 1653.

Supreme Court of New Mexico.

July 14, 1914.

Syllabus by the Court.

The adressee of a telegram may maintain an action in tort, against a telegraph company, for negligently delivering a forged message to him, which he in good faith and without negligence acts upon to his damage.

It is not the duty of a telegraph company to investigate and satisfy itself of the identity of the person who delivers to it a message for transmission. All that is required of it is the exercise of reasonable care in the receipt and transmission thereof.

In the absence of facts or circumstances which would suggest or arouse suspicion in the mind of a person of ordinary caution of false impersonation, or of want of authority, the exercise of reasonable care by a telegraph operator to receive messages from those only who have authority to send them does not require him to investigate the identity or authority of those who present them.

The rule is that where the plaintiff proves loss without negligence on his part, by acting on a message delivered to him by the company as coming from, but not in fact sent by, one in whose name it is signed, he makes a prima facie case, and the duty devolves upon the company of rebutting it.

Where a party attempts to demur and plead to the merits at the same time and to the same pleading, he waives the demurrer.

An objection to the reception of any evidence on the ground that the complaint fails to state facts sufficient to constitute a cause of action should definitely point out wherein the complaint so fails, in order to enable the trial court to intelligently rule upon the question and to show the opposite party the point of the objection. And, unless such objection is specific, it will be unavailing on appeal.

Where a complaint is first attacked in the appellate court, upon the ground that it does not state facts sufficient to constitute a cause of action, it will be liberally construed in order to uphold the judgment, and, if it contain allegations from which every fact necessary to maintain the action may be inferred, it will be sustained. Held, that a complaint which states facts which, if proven on the trial, would constitute a good prima facie case for the plaintiff will be held sufficient to sustain the verdict, where it is not attacked until after verdict.

The continuance of a cause, upon application, rests in the discretion of the trial court and will not be interfered with upon appeal, unless it appears that the trial court has abused such discretion.

In a civil case, where a witness resides beyond the jurisdiction of the court in which such cause is pending, a party has no right to rely upon the promise of such witness to attend the trial, but should take his deposition.

Where, in a suit against a telegraph company for damage, for the negligent delivery of a forged message, the plaintiff proves the delivery by the company, and that the message was a forgery, and his damage in reliance thereon, he makes out a prima facie case, and a motion for nonsuit is properly denied.

Where a party introduces incompetent evidence, he cannot complain if the trial court permits the other party to rebut the same.

No alleged errors, not jurisdictional, will be considered on appeal or error, except those which are set out in the motion for a new trial.

Where a plaintiff enters a remittitur as to a part of his recovery in the lower court, and there is sufficient evidence to sustain the balance of his recovery, and such balance is approved by the trial court, a judgment for such balance will not be disturbed, unless it is apparent, from the flagrant excessiveness of the verdict, that the jury was influenced by passion or prejudice.

Appeal from District Court, Union County; Leib, Judge.

Action by State Bank of Commerce of Clayton against the Western Union Telegraph Company. From judgment for plaintiff, defendant appeals. Affirmed.

An objection to the reception of any evidence on the ground that the complaint fails to state facts sufficient to constitute a cause of action, should definitely point out wherein the complaint so fails, in order to enable the trial court to intelligently rule upon the question and to show the opposite party the point of the objection. And unless such objection is specific it will be unavailing on appeal.

On the morning of the 14th day of April, 1911, the day operator of the appellant company at Clayton, N. M., delivered two telegrams to the appellee, both purporting to be signed by the First National Bank of Monticello, Ill., one of which directed appellee to sign the appearance bond of Charles W. Lanier, in the sum of $2,000, the said Lanier then being in the custody of the sheriff of Union county, on a criminal charge; the other directing it to pay Lanier $600. Prior to the delivery of the telegrams, the said Lanier had been permitted, under the care of a guard, to go around the town, and he had frequently visited the appellant's office, and was in said office the night previous. While there, on that occasion, the evidence discloses that he sent a telegram, for the agent, while he was engaged in other work which took him outside the office, reserving a Pullman berth for some persons, who had requested the agent to wire for the same; upon the return of the agent Lanier informed him that he had made the reservation, and that he had also taken two telegrams which came in and hung them on the hook. There was, however, no evidence showing whether the telegrams so delivered were the ones which Lanier said he had taken for the operator. Appellee bank placed to Lanier's credit the sum of $600, and caused the bond to be executed, as requested in the telegrams. The bank paid out, on checks issued by Lanier, the sum of $512.50, during banking hours on the 14th day of April. In the afternoon of said day Lanier left town. Later it was discovered that the telegrams were forgeries, and Lanier was subsequently rearrested in Kansas and returned to the sheriff of Union county. Ninety dollars was found on Lanier's person at the time he was apprehended, which the bank applied to the payment of a reward which it had offered for his apprehension; the bank subsequently obtaining an order from Lanier to the sheriff to turn such money over to the bank.

The appellee filed its complaint against the appellant for the recovery of the sum of $512.50. It is alleged that on the 14th day of April, 1911, the appellant delivered to it the following telegram:

“Dated, Monticello, Ill. 13.

To the Bank of Commerce, Clayton: Please pay Charles W. Lanier, six hundred dollars. We remit.

First National Bank.”

That the telegram was not delivered to the defendant company by the First National Bank of Monticello, Ill., as said telegram purported to have been, and the complaint contained additional allegations showing that such telegram was a forged and fraudulent message. The complaint also alleged that appellee, relying upon the authenticity of such telegram, paid to said Lanier the sum of $512.50, or that it paid out upon his orders such sum. As no complaint is made as to the statement of appellee's loss in the complaint, we will omit further reference thereto. The complaint concluded with a prayer for judgment against appellant for the sum of $512.50, together with interest thereon and costs.

Appellant answered the complaint, and by its first paragraph of answer challenged the sufficiency of the complaint, upon the ground that it failed to state a cause of action. By additional paragraphs it denied the delivery of the message, and also alleged that appellee was guilty of contributory negligence in not having such telegram repeated. The other allegations of the complaint were denied.

When appellee's first witness was called, appellant objected to the introduction of any evidence on the ground that the complaint failed to state a cause of action, which objection was overruled by the court. Upon the conclusion of the evidence, the court instructed the jury that, if they returned a verdict for the plaintiff, they must credit the defendant with the $90 recovered by the plaintiff from Lanier upon his arrest against the $512.50 which the plaintiff claimed it had paid out on Lanier's checks. The jury returned a verdict for the full amount claimed, viz., $512.50. The appellant filed a motion for a new trial, based upon numerous grounds; one being that the verdict was the result of passion and bias on the part of the jury, as appeared from the fact that the jury refused to be bound by the instruction of the court with reference to the $90 credit. The court announced that it would be obliged to set aside the verdict unless the $90 was remitted by the plaintiff, but, if that amount were remitted, it would overrule the motion and enter judgment on the verdict. Appellee thereupon filed its written consent to a reduction of the verdict to $422.50, and the motion for a new trial was overruled, and defendant saved an exception. The court then entered judgment on the verdict, and defendant appealed.

Kelly & Haines, of Denver, Colo., and O. T. Toombs, of Clayton, for appellant.

Hugh J. Collins, of Clayton, for appellee.

ROBERTS, C. J. (after stating the facts as above).

[1] The first point upon which appellant relies for a reversal is that the complaint does not state facts sufficient to constitute a cause of action, because: (a) The addressee of a telegram cannot maintain an action against the telegraph company, for the reason that the obligation of the company springs from and depends entirely upon the contract for the transmission of the message, and this contract, being solely with the sender, gives no right to the addressee, who is not a party to the contract; (b) the contract with the telegraph company, for the transmission of the message, was not for the benefit of the addressee, appellant herein; and (c)...