Usher v. Western Union Telegraph Co.

• Decision Date: 03 December 1906
• Citation: 98 S.W. 84,122 Mo. App. 98
• Parties: USHER v. WESTERN UNION TELEGRAPH CO.
• Court: Missouri Court of Appeals

98 S.W. 84

122 Mo. App. 98

USHER v. WESTERN UNION TELEGRAPH CO.

Kansas City Court of Appeals. Missouri.

December 3, 1906.

1. MASTER AND SERVANT — EXISTENCE OF RELATION.

Where a telegraph company furnished the equipment for a telegraph office at a railroad station, and the station agent of the railroad company was the telegraph operator and was paid by the railroad company, the office being chiefly used for railroad business, but he frequently accepted messages from the general public and turned the charges collected therefor over to the telegraph company, the station agent was the agent of the telegraph company, so as to render it liable to one who was injured by his forging a telegram not connected with railroad business.

2. SAME — TORTS OF SERVANT.

Where a telegraph operator forges a telegram and the forgery is the proximate cause of injury to another, he is entitled to maintain a civil action for damages against the company.

3. SAME — PROXIMATE CAUSE.

An assistant telegraph operator at defendant telegraph company's office at P. communicated with defendant's operator at M. representing himself to be his chief — who was an express agent — and stating that he had received a package of money to be sent to F. at M., but, by mistake, had sent it to another place, and that he would send his own check to replace the money, and requested the operator at M. to assist F. in getting the check cashed. The operator at M. suggested that certain merchants in that village would probably cash the check, and the assistant then sent a regular message to the operator asking him to assist F., signing the message with the name of his chief, and sent to the merchants mentioned a forged telegram, signed by a bank, advising them to honor such check. The assistant then presented himself to the operator at M., representing himself to be F., and the operator at that place, taking with him the forged telegrams, went out with the assistant to plaintiff, a merchant other than the one to whom the telegram had been sent, and the operator introduced the assistant as F. and showed the telegrams, whereby the plaintiff was induced to cash a forged check. Held, that the telegraph company was not liable, inasmuch as the conduct of the operator at M. after the arrival of the assistant was outside of the scope and course of his employment.

4. JUDGES — DE FACTO JUDGES.

Rev. St. 1899, § 1679, provides that, whenever the judge from any cause shall be unable to hold any term or part of term of court and shall fail to procure another judge to hold such term or part of term, a special judge may be elected by the attorneys present to hold court for the occasion. Held that, where a judge died during term and the attorneys elected a special judge who assumed the duties of the office, he became a judge de facto and his acts during the term were valid, irrespective of whether in such a case, there is a vacancy which should be filled by the governor.

5. APPEAL — FAILURE TO PRESENT QUESTION BELOW — PLEADING — PETITION.

A failure of the petition to state a cause of action may be taken advantage of on appeal though no objection was made or exception taken.

Appeal from Circuit Court, Barton County; L. W. Shafer, Judge.

Action by F. M. Usher against the Western Union Telegraph Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

George H. Fearons, Thurman & Timmonds, and Karnes, New & Krauthoff, for appellant. Cole, Burnett & Moore, for respondent.

ELLISON, J.

Plaintiff, claiming to have suffered pecuniary loss through the misfeasance of defendant's agent, brought this action for damages and recovered judgment in the trial court. The city of Parsons, Kan., and the village of Minden, Mo., are about 60 miles apart. In each of them the defendant has telegraph operators who receive and transmit messages. In the former place it has what may be called a regular office and operator and it also has an equipment at the St. Louis & San Francisco railroad station into which what is known as the "railroad wire" enters, the latter being used mostly for railroad work. This equipment, at the time of plaintiff's loss, was in charge of the railway station agent, Knight, and his assistant, Connelly. The latter turned out to be a forger and swindler and used the telegraph wire in his scheme which resulted in his getting from plaintiff $700. The village of Minden is a small place without a bank and the few merchants there occasionally accommodated different ones of the public in cashing checks or drafts. Defendant's agent and operator at Minden was likewise the railway station agent and also agent for an express company. Knight, as just stated, was the railway station agent at Parsons and he was also agent for the express company. Connelly, as expressed by the witnesses, "called" the agent at Minden and "talked" to him over the wire, personating his principal, Knight, in which talk he gave the agent the false information that he had received a package containing a large sum of money from one F. M. Markham (a fictitious person) to be sent to Minden and that he, by mistake, had sent it to some other place, and that when Markham called for it at Minden and found it had been missent, he would probably make trouble for the express company. He, therefore, (still pretending to be Knight) stated that he would send his own check for $700 to replace the money so missent and requested the agent to assist Markham in getting it cashed and asked him who would likely cash it. The agent answered that he would assist him and he thought Sanford Bros., merchants in the village, would cash the check. Connelly, in order to further his scheme then sent to the agent the following telegram in the name of Knight: "Parsons Station, 26 190 Agent, Minden, Mo.: Please help F. M. Markham cash check for seven hundred nine dollo in A. M. & notify me soon as done pls. W. C. Knight." And then also sent the following telegram to Sanford Bros., forging the name of the Commercial Bank at Parsons. "Mch. 26, 1905. Dated Parsons, Kas. To Sanford Bros. Minden, Mo. Honor W. C. Knight's check for seven hundred dollars advise when done & will remit. Com. Bak." He then wrote the following draft and inclosed it in the following letter, forging the name of Knight to both: "Parsons, Kansas, March 26th, 1905. No. 27 Parsons Commercial Bank. Pay to F. M. Markham or bearer $700.00, seven hundred dollars. W. C. Knight." "Parsons, Kas., 3-26. Agt. Minden: Enclosed find check for $700, seven hundred dollars favor F. M. Markham pls help him cash it it's very important. W. C. Knight." He then described over the wire his own personal appearance to the agent at Minden pretending that it was a description of the fictitious Markham. He then took a train for Minden and presented himself to the agent as Markham near 9 o'clock p. m., whereupon the agent, taking along the forged letter and telegrams above set forth, went out with Connelly to the plaintiff, another merchant in the village whom they met on the street on his return from church. The agent, believing him to be so, introduced Connelly as Markham, and delivered to plaintiff the forged letter and telegrams including the one from the bank addressed to Sanford Bros. asking them to cash the draft. Plaintiff, stating that he could not look into the matter on the street, invited them to his house, whither all three went. Plaintiff read over the papers and remarked on the telegram from the bank being addressed to Sanford Bros. Whereupon both the agent and Connelly assured plaintiff that the telegram had been addressed to Sanford Bros. in the belief that they would cash the check, but that security was thereby intended for any one that would do so. The plaintiff then, in reliance upon the forged check and the telegrams being genuine and upon the assurances of the agent, as just stated, cashed the check and paid the money over to Connelly, who left the country, and the bank at Parsons and Knight repudiating the check, the loss to plaintiff became manifest.

If this case was one where a forged telegram had been received by defendant's agent, its solution would not be difficult. For, in such instance, the rule is that the telegraph company is only charged with the duty of ordinary care, judged from the standpoint of the nature of its business, to avoid being imposed upon by the forger. Such companies, in such instances, are not insurers. Western Union Tel. Co. v. Uvalde Bank, 97 Tex. 219, 77 S. W. 603, 65 L. R. A. 805. But the case presents the novelty of the defendant's agent himself being the forger, and his act, it is claimed, was the proximate cause of plaintiff's loss. We may here parenthetically remark that we put aside the letter and telegram from Connelly to the agent at Minden as they can have no bearing on defendant's liability, as will more clearly appear further on, and we have only referred to them as a part of the history of the case. It ought to be plain to every one that, if the telegraph company is under an obligatory duty to exercise ordinary care, through its agent, in protecting persons with whom it comes in business contact from forged or fraudulent telegrams, by stronger reason ought it to be held that a positive obligation rests upon it to absolutely protect such persons in respect to its agent who is himself the swindler. The two obligations, at first view, look to be so near akin as to be substantially alike. While there is a difference, it is principally in the character or degree of the obligation. In the one the obligation upon the company is that its agent will be careful and prudent, the business considered, in guarding against imposition in sending forged telegrams. In the other there is an absolute assurance that the agent himself has not forged the telegram. The argument against this absolute obligation and liability of the telegraph company is that no principal ought to be, or can be, held for the willful wrong of his...