Western Union Telegraph Co. v. Totten

• Decision Date: 16 November 1905
• Docket Number: 2,175.
• Citation: 141 F. 533
• Parties: WESTERN UNION TELEGRAPH CO. v. TOTTEN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

141 F. 533

WESTERN UNION TELEGRAPH CO. v. TOTTEN et al.

No. 2,175.

United States Court of Appeals, Eighth Circuit.

November 16, 1905

(Syllabus by the Court.)

Proof in an action of tort of a certain amount of loss, which includes both legal damages and those too remote to warrant recovery, in the absence of any evidence from which the jury can determine the amount of either, will not sustain a verdict for more than nominal damages. Courts and juries may not lawfully transfer the property or money of one citizen to another by guess.

In the absence of notice of facts or circumstances which would awaken inquiry and arouse suspicion in the mind of a person of ordinary prudence and intelligence in a like situation regarding the authority to send it of the party who presents a message for transmission, the exercise by a telegraph company and its operators of reasonable care to receive and transmit genuine and authorized messages only does not require them to investigate or ascertain the identity or authority to send it of the person who tenders a message for transmission, whether that message is in writing, or is spoken directly to the operator, or is communicated to him by telephone.

But when such facts or circumstances come to the notice of the company or of its acting operator, the exercise of reasonable care to transmit genuine and authorized messages only requires the party who receives the notice either to investigate and ascertain the authority of the sender before transmitting the message, or to communicate the facts and circumstances and the inquiry or suspicion to the addressee at or before its delivery.

The receipt and transmission to the addressee of a message to the effect that a bank, in whose name it is telephoned, will honor the checks or drafts of a beneficiary, by an operator who knows the message is telephoned to him by either the beneficiary or by the cashier of the bank, but who does not know by which one, without inquiring into the identity or authority of the sender, constitutes substantial evidence for the consideration of the jury, upon the question whether or not the operator exercised reasonable care to receive and transmit genuine and authorized messages only.

Henry D. Estabrook, James . Hewitt, and Rush Taggart (George h Fearons, George h. Carr, A. C. Parker, Craig T. Wright, and John F. Dillon, on the brief), for plaintiff in error.

John L. Stevens, and H. E. Fry, for defendants in error.

Before SANBORN, Circuit Judge, and PHILIPS and CARLAND, District judges.

SANBORN Circuit Judge.

The plaintiffs below, W. H. Totten and H. C. Totten, who were copartners under the style of the Bank of Gilbert, sued the Western Union Telegraph Company for moneys they were induced to pay upon the checks of Barnes and the orders of his agent, by these telegrams:

'Denison, Ia., Mch. 5th, 1902.

'Bank Gilbert, Ia.: Will honor Barnes checks three cars stock.

'Bank of Denison

'Denison, Ia., Mch. 8th, 1902.

'Bank Gilbert, Ia.: Will honor Barnes checks three cars stock.

'Bank of Denison.

'Denison, Ia., Mch. 11th, 1902.

'Bank Gilbert, Ia.: We will honor draft of E. S. Barnes for three cars stock.

'Bank of Denison. -- which the defendant received by telephone from either Voss, the cashier of the Bank of Denison, or from Barnes, and transmitted to the plaintiffs. The plaintiffs alleged, and there was evidence tending to prove, that these telegrams were neither sent nor authorized by the Bank of Denison. The evidence at the trial tended to prove these facts: A year or more prior to the dates of the messages, which have been quoted, the Bank of Denison had recommended Barnes to the plaintiffs as an honest man of small means, and he had been buying cattle at Gilbert in this way: He gave to the vendors his checks upon the plaintiffs for the purchase price of the stock. It was not the practice of the plaintiffs to pay these checks until the Bank of Denison, which was a copartnership, had telegraphed to them that they would honor them. Voss, the cashier of the Bank of Denison, testified that for several months prior to February, 1902, they had sent telegrams of the character of those above to the plaintiffs, but that, without notifying the plaintiffs, they had ceased to do so in January, 1902. In reliance upon such telegrams the plaintiffs had paid the checks of Barnes for, and the Bank of Denison had reimbursed them for, about 60 car loads of stock before the telegrams involved in this action were sent. When the plaintiffs received these telegrams they do not appear to have telegraphed an acknowledgment of them to the Bank of Denison or to have attempted in any way to verify them, but they proceeded to pay checks of Barnes for cattle which his agent bought and then to draw upon the Bank of Denison for the amounts they expended. Barnes procured and sold the cattle before these drafts reached the drawees, who refused to pay them.

Nearly all the messages received by the telegraph operator at Denison came to him over the telephone. The Bank of Denison sent most of their messages in this way, and Barnes many of his. The bankers frequently sent messages concerning the business of Barnes, and they had arranged with the defendant that all their telegrams about his business should be paid by Barnes. One Lyman was telegraph operator at Denison. He had held this position from February 5, 1902. The telegraph office was at the railroad station. Mahoney was the station agent, and he had told Lyman that, when Barnes had telephoned a certain message in the name of the bank concerning the latter's payment of his drafts a month or two before, he had informed the assistant cashier of the fact that Barnes was sending telegrams about money in the name of the bank, and the bank officer had replied that he guessed it was all right. Lyman testified that almost all the messages sent by Barnes, while he was the operator at Denison, were sent in the name of the bank, that no one but Boss or Barnes ever sent any messages to him about the business of Barnes, and that he received the telegrams involved in this action by telephone from either...