Western Union Telegraph Co. v. Cashman

• Citation: 149 F. 367
• Decision Date: 15 December 1906
• Docket Number: 1,540.
• Parties: WESTERN UNION TELEGRAPH CO. v. CASHMAN.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

149 F. 367

WESTERN UNION TELEGRAPH CO. v. CASHMAN.

No. 1,540.

United States Court of Appeals, Fifth Circuit.

December 15, 1906

The defendant in error is the editor and publisher of a newspaper in Vicksburg, Miss., called the 'Vicksburg Evening Post.' On October, Miss., 1901, he published in said paper a special telegram from Jackson, Miss., as follows:

'A civil proceeding against Miss Leeton was being tried, and somewhat in contrast to his former attitude toward the woman, Ex-Senator was in the role of an attorney prosecuting the claim of a local drygoods firm for debt. Miss Leeton was represented by Hon. C. L. Sivley. The main point at issue was whether she was a nonresident, and therefore liable for attachment. During the proceedings one of the witnesses questioned the chastity of Miss Leeton provoking some sulphurous language from her lips, and the witness drew a gun and threatened to kill her. Miss Leeton attempted to borrow a gun, evidently with the purpose of shooting her traducer, who had in the meantime been taken in charge by friends, and there was great excitement in the courtroom for several minutes, effectually breaking up the proceedings. Miss Leeton declared that the gun pointed at her by the witness belonged to Ex-Senator Sullivan, and of this she was positive, having kept the weapon for him three years.'

On the 2d day of November, 1901, Ex-Senator W. V. Sullivan, of Oxford, Miss., handed in to the office of the Western Union Telegraph Company at Oxford, to be forwarded over the company's lines to Vicksburg, Miss., the following written message:

'Vicksburg Evening Post: Your article in issue of Thursday is a dirty lie as you know. Who is responsible? You nasty dog. Answer.

'W. V. Sullivan.'

At the time this message was handed in to the office, there was no agent of the company present, but there was present one Scott Nichols, a boy, who assisted the agent in other lines of business. Nichols received the message and forwarded it by sound over the wire of the company to Memphis, Tenn. At Memphis the message was received by sound, there written out and placed on the transmission book from which it was taken by an agent of the company and forwarded to the agent at Vicksburg. In Vicksburg it was written out by the agent who received it, and handed to a messenger boy, who took a letter-press copy of the same, and inclosed it in a sealed envelope and thus delivered it to the defendant in error, who two days afterwards exploited the message as one from Sullivan, and gave his reply thereto in his evening paper.

This suit is one brought by Cashman, editor and publisher, against the telegraph company to recover damages to his fame, business, reputation, mental suffering, etc. The declaration, as amended, contains two counts, in the first of which it is charged that 'the telegraph company did wickedly and maliciously write and publish and cause to be written and published of and concerning the plaintiff a false, scandalous, malicious, and defamatory libel;' and in the second count the same charge is made with the same indefiniteness, but added thereto is the following: 'Plaintiff says that the said false, scandalous, malicious, and defamatory libel was published by defendant contrary to the statute of the state of Mississippi with a view to insult the plaintiff, and to lead him to commit violence and a breach of the peace." The bill of exceptions contains all the evidence submitted on the trial of the case, showing substantially as above set forth.

After the evidence was all in, before the jury retired, plaintiff in error, through his counsel, requested the court to give to the jury, among other charges, the following special instructions: '(1) The court instructs the jury to find a verdict for the defendant. (2) The court instructs the jury for the defendant, that in fixing the amount of damage to be awarded to the plaintiff, by reason of contents of message complained of being made known to the employes of defendant, as hereinbefore stated, they should also take into consideration the fact that under section 1301 of the Annotated Code of Mississippi it is a misdemeanor for a clerk, operator, or messenger, or other employe of a telegraph company to use, or suffer to be used, or willfully to divulge to any one but the person for whom it was intended, the contents of a telegraphic message intrusted to him for transmission or delivery, or the nature thereof, punishable by a fine of not more than $200, or by imprisonment in the county jail not exceeding three months, or both; and, further, that the evidence fails to disclose that the contents of the message complained of was ever disclosed by any clerk, operator, or messenger or any other employe of the defendant. (3) The law presumes that every one acts rightfully and in accordance with law, and there is no evidence in this case to show that any one knew of the contents of the message in question, except four employes of the company, who, under section 1301 of the Annotated Code of Mississippi, could not disclose the contents of said message without being guilty of a misdemeanor, and upon conviction could be fined not more than $200, or by imprisonment in the county jail not exceeding three months, or both, and that there is no evidence in this case that said employes ever disclosed the contents of this message to any one, and the jury should take that fact into consideration in assessing damages, if any were suffered by it.'

The court refused to give these instructions, and exceptions to such refusal were seasonably taken. There was a verdict and judgment for the plaintiff for $5,000 damages, and the defendant sued out a writ of error.

Murray F. Smith and J. Hirsh, for plaintiff in error.

O. W. Catchings and J. C. Bryson, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PARDEE Circuit Judge (after stating the facts).

The case shows that the defendant in error published in his paper in Vicksburg a libel on Ex-Senator Sullivan, just as a matter of news and a matter of general interest as he says, and having no reason to doubt its truth. Ex-senator Sullivan, at Oxford, Miss., vigorously denying the truth of the article, and apparently thinking himself well informed as to his facts, responded with the telegraphic message heretofore set out. The defendant in error took time to deliberate and then published in his newspaper the two libels, with characteristic comments from his standpoint for the general information of the public. This seems to have ended the matter between the long distance belligerents, but not as to the telegraph company, whose agents Sullivan had made a tool of; for, on more deliberation, the defendant in error found that his feelings had been sore wounded, because the telegraph company's agents carried the message that Sullivan sent and which he himself had published in his newspaper. Hence this suit against the only innocent party in the matter.

The first count is for libel, and the second for publishing a libel in violation of a statute of Mississippi with a view to insult, etc. The effect of the statute of Mississippi, found in section 10, c. 2, of the Annotated Code of Mississippi of 1892, is as follows:

'All words which, from their usual construction and common acceptation are considered as insults, and lead

...