Western Union Telegraph Co. v. Goodman

• Decision Date: 20 February 1933
• Docket Number: 29758
• Citation: 166 Miss. 782,146 So. 128
• Court: Mississippi Supreme Court
• Parties: WESTERN UNION TELEGRAPH CO. v. GOODMAN

146 So. 128

166 Miss. 782

WESTERN UNION TELEGRAPH CO. v. GOODMAN

No. 29758

Supreme Court of Mississippi

February 20, 1933

Division A

1 EVIDENCE.

Answers to interrogatories consisting of statements of facts gathered by witnesses from third persons held properly excluded as hearsay.

2. APPEAL AND ERROR. Permitting witnesses to testify to comparison of handwritings, where signature used for comparison was not admitted to be genuine, held not to require reversal, where evidence was merely cumulative and drafts involved were submitted to jury.

Witnesses were permitted to testify that signatures on drafts paid by telegraph company to person whom it supposed to be the intended recipient of money were, by comparison with circular and letters written by intended recipient, not in same handwriting. Person to whom money was intended to be sent swore positively that he did not sign the drafts, and there was evidence that the handwriting on the three drafts involved was different in each ease.

3 EVIDENCE.

One who had written letters to another and received replies thereto on which both parties acted held competent witness to testify as to genuineness of other's signature.

4. COMMON LAW.

Common-law rules are applied in Mississippi.

5 CARRIERS.

Common carrier is insurer of delivery to proper person.

6. TELEGRAPHS AND TELEPHONES.

That one sending money through telegraph company to person he had never seen, under contract requiring positive identification had been imposed on by person who communicated with him, held no defense to telegraph company, where payment was not made to person named in contract (Constitution 1890, section 195).

7. TELEGRAPHS AND TELEPHONES. Liability of telegraph company for paying money to imposter, under contract whereby sender directed payment to person he had never seen, and required positive identification, held question for jury under evidence of failure to obtain sufficient identification (Constitution 1890, section 195).

The evidence disclosed that plaintiff, the person sending the money, had transacted business by mail with a brokerage firm, and had had personal correspondence with a member of the firm he had never seen. Following this correspondence some person in Houston, Texas, communicated with plaintiff by telegraph, offering him a bargain in certain oil stock in company in which the broker, with whom plaintiff had communicated and who had been in Texas some time prior to these transactions, had certain dealings. Plaintiff thereupon delivered several sums of money to telegraph office to be paid to the broker, in care of the oil company in Houston, Texas, under contract requiring positive evidence of personal identity before making payment. Payment was made to person claiming to be the intended recipient. This person was introduced and identified by another, whom employee of telegraph company had met only a short time before, and no other identification was required, aside from obtaining signature of banker as witness to party's signature, after banker had stricken out words "for identification only" on identification blank.

HON. J. I. STURDIVANT, Judge.

APPEAL from circuit court of Oktibbeha county HON. J. I. STURDIVANT, Judge.

Action by L. N. Goodman against the Western Union Telegraph Company. From an adverse judgment, defendant appeals. Affirmed.

Affirmed.

D. W. Houston, Sr. and Jr., of Aberdeen, for appellant.

The court permitted plaintiff and his attorney, W. W. Magruder, over defendant's objections and exceptions, to testify that the signatures appearing upon said exhibits were all the same and the signatures of W. M. Steward of W. M. Steward and Company of 1 Montgomery Street, Jersey City, New Jersey.

Defendant objected to said exhibits and said testimony, and asked that they be excluded for several reasons, among others, that none of them were the admitted signatures of said W. M. Steward; that both of said witnesses admitted that neither of them had ever seen said W. M. Steward and had never seen him write his name, therefore were not familiar with his handwriting, and could not say that he did sign his name to any of these exhibits or that the man who purported to sign same was in fact the W. M. Steward of W. M. Steward and Company of 25 Beaver Street, New York, or of 1 Montgomery Street, Jersey City, N. J., or that said W. M. Steward was in any of the places from which said letters purported to come on their dates; and that they never saw any of the admitted signatures of said W. M. Steward. Neither of said witnesses qualified as handwriting experts.

Mutual Life Insurance Co. v. Witte, 67 So. 263, 265; Wilson v. Beauchamp et al., 50 Miss. 24, 32.

The testimony of a nonresident party to a suit, taken by the adverse party under the code, which provides for a disposition of the suit in favor of the party seeking the deposition, in case of failure to answer the interrogatories propounded, is a deposition in such a sense that it may, on failure to use it by the party obtaining it, be put in evidence by the opposite party.

Standard Life and Acc. Ins. Co. v. Tinney, 73 Miss. 726.

When one of two innocent parties must suffer a loss, the loss must fall upon the one whose fault, negligence or mistake primarily made such loss possible.

Iron City Bank v. Ft. Pitt National Bank, 159 St. 47, 28 A. 197; Landtitle Trust Co. v. N.W. National Bank, 46 A. 420, 421; Montgomery G. Co. v. Mfg. Ins. Co., 109 A. 296, 297, 94 N. J. Law 152; U. S. v. Nat. Exc. Bank, 45 F. 163 and 167.

Plaintiff is not suing on the theory or idea that he was damaged because defendant did not require personal identification, but rather that payment was not made to the party or person named, while as a matter of fact it was.

The plaintiff should not criticise defendant or be allowed to recover from it for doing what he would have done himself.

Meyer v. Indiana National Bank, 61 N.E. 596, 27 Ind.App. 354.

Plaintiff Goodman could have protected himself, as well as defendant, before he sent orders and telegrams.

A telegraph company is not required to establish detective agencies to run down strangers to whom messages have been directed, but is only required to exercise reasonable diligence to find them according to the circumstances of the particular case.

Western Union Telegraph Co. v. Cox (Texas), 74 S.W. 922; Western Union Telegraph Co. v. Myer, 61 Ala. 158, 32 Am. Rep. 1; Western Union Telegraph Co. v. Kidd, 118 So. 228, 229; Western Union v. American State Bank of Burkburnett, 277 S.W. 226; Samuel v. Cheney, 135 Mass. 278, 46 Am. Rep. 467; Meyer v. Indiana Nat. Bank, 27 Ind.App. 354, 61 N.E. 596; Landtitle Trust Co. v. Northwestern National Bank, 46 A. 420; Maloney v. Clark, 6 Kan. 82; Robertson v. Coleman, 141 Mass. 231, 4 N.E. 619; Uriola v. Twin Falls Bank & Trust Co., 215 P. 1080, 1081, 37 Idaho 332; Wilson & Co. v. Adams Express Co., 27 Mo.App. 360; Fulton Bag & Cotton Mills v. Hudson Navigation Co. (S.D.N.Y.), 157 F. 987 (affirmed 4th C. C. A., 164 F. 1022); Norwalk Bank v. Adams Express Co., 4 Blatch. 455, 18 F. 431, 433; Kimbrough v. American Railway Express Co., 168 Ark. 444, 270 S.W. 518, 519; Myers v. American Railway Express Co., 243 Mass. 390, 137 N.E. 654; Hartford v. Greenwich Bank of City of New York, 142 N.Y.S. 387, 389, 157 A.D. 448, 109 N.E. 1077; Montgomery Garage Co. v. Manufacturers Liability Ins. Co., 109 A. 296, 297, 94 N. J. Law 152.

Where a transportation company delivered goods received for shipment to the person who ordered the same from the shipper, it cannot be held liable to the shipper for their value, although such person may have ordered and received them under a fictitious name.

Fulton Bag & Cotton Mills v. Hudson Navigation Co., 157 F. 987.

A bank that has paid a check on a forged indorsement is not responsible therefor to the drawer where the person who committed the forgery was identified to the bank by one who believed him to be the payee, and was in fact the person to whom the drawer had delivered the check, and whom he believed to be the payee.

United States v. National Exchange Bank, 45 F. 163, 167.

Magruder, Walker & Magruder, of Starkville, for appellee.

Under the provisions of section 195 of the Constitution of Mississippi of 1890, telegraph companies are declared to be common carriers.

It is generally held that a carrier is liable to the consignor for delivering goods to a person who wrongfully orders them in the name of another, the good being consigned to the person in whose name they are ordered.

54 A.L.R. 1330; Southern Express Co. v. Ruth and Son, 183 Ala. 493, 59 So. 538; Southern Express Co. v. Smith, 69 Ind.App. 574, 122 N.E. 427; L. Kommel and Son v. Champlain Transportation Co., 93 Vt. 1, 2 A.L.R. 275; Murray v. Postal Tele.-Cable Co., 210 Mass. 188, Ann. Cas. 1912C 1183, 96 N.E. 316; Pacific Express Co. v. Shearer, 160 Ill. 215, 52 A. S. R. 324; United States Exp. Co. v. Hutchins, 67 Ill. 348; Baldwin v. American Exp. Co., 23 Ill. 197, 74 Am. Dec. 190; Gulliver v. Adams Exp. Co., 38 Ill. 503; American, etc., Exp. Co. v. Milk, 73 Ill. 224; American, etc., Exp. Co. v. Wolf, 79 Ill. 430; American Exp. Co. v. Fletcher, 25 Ind. 493; Southern Exp. Co. v. Van Meter, 17 Fla. 783, 35 Am. Rep. 107; Price v. Oswego, etc., Ry. Co., 50 N.Y. 213, 10 Am. Rep. 475; 54 A.L.R. 1330; 10 C. J., Carriers, section 379; Pacific Express Co. v. Critzer (Tex. Civ. App.), 42 S.W. 1017; Pacific Express Co. v. Hertzberg, 17 Tex. Civ. App. 100, 42, S.W. 795.

Appellant assumes in his brief that the law applicable to carriers is applicable to telegraph companies and we agree with appellant that a telegraph company which accepts money for transmission is a common carrier. Some distinction has been made in the courts in the transmission of...